10–20–08 Monday Vol. 73 No. 203 Oct. 20, 2008

Pages 62187–62434

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Contents Federal Register Vol. 73, No. 203

Monday, October 20, 2008

Agricultural Marketing Service Court Services and Offender Supervision Agency for the PROPOSED RULES District of Columbia Irish Potatoes Grown in Washington; Modification of Late NOTICES Payment and Interest Charge Regulation, 62215–62218 Senior Executive Service; Performance Review Board; Tomatoes Grown In Florida; Increased Assessment Rate, Members, 62260 62218–62220 Defense Acquisition Regulations System Agriculture Department RULES See Agricultural Marketing Service Defense Federal Acquisition Regulation Supplement: See Animal and Plant Health Inspection Service Evaluation Factor for Use of Members of the Selected Reserve, 62211–62212 Air Force Department PROPOSED RULES NOTICES Defense Federal Acquisition Regulation Supplement: Non-Exclusive, Exclusive or Partially Exclusive Licensing Clarification of Central Contractor Registration and of Invention, 62262 Procurement Instrument Identification Data Requirements, 62239–62241 Animal and Plant Health Inspection Service Defense Department NOTICES Availability of an Environmental Assessment and Finding See Air Force Department of No Significant Impact: See Defense Acquisition Regulations System Sirex Woodwasp, 62246–62247 See Engineers Corps NOTICES Meetings: Army Department Missile Defense Advisory Committee, 62260–62262 See Engineers Corps Education Department Broadcasting Board of Governors NOTICES NOTICES Applications for New Awards (Fiscal Year 2009): Meetings; Sunshine Act, 62247 Office of Special Education and Rehabilitative Services (OSERS), 62263–62266 Centers for Disease Control and Prevention RULES Employee Benefits Security Administration Medical Examination of Aliens; Revisions to Medical RULES Screening Process, 62210–62211 Group Health Plans and Health Insurance Issuers Under Newborns’ and Mothers’ Health Protection Act, 62410– Children and Families Administration 62429 NOTICES NOTICES Meetings: Meetings: President’s Committee for People with Intellectual Advisory Council on Employee Welfare and Pension Disabilities, 62297–62298 Benefit Plans, 62320 Coast Guard Employees’ Compensation Appeals Board PROPOSED RULES RULES Security Zone: Rules of Procedure, 62190–62196 West Basin, Port Canaveral Harbor, Cape Canaveral, FL, 62235–62237 Employment and Training Administration NOTICES Commerce Department Amended Certification Regarding Eligibility to Apply for See Foreign-Trade Zones Board Worker Adjustment and Alternative Trade Adjustment See Industry and Security Bureau Assistance: See International Trade Administration Adjustment Assistance: See National Oceanic and Atmospheric Administration General Motors Corp.; Shreveport, LA, 62321 See National Telecommunications and Information Metrologic Instruments; Blackwood, NJ, 62321 Administration Determinations Regarding Eligibility to Apply for Worker See Patent and Trademark Office Adjustment and Alternative Trade Adjustment NOTICES Assistance, 62321–62323 Agency Information Collection Activities; Proposals, Investigations Regarding Certifications of Eligibility to Submissions, and Approvals, 62247–62248 Apply for Worker Adjustment and Alternative Trade Adjustment Assistance, 62323–62324 Consumer Product Safety Commission Revised Determination on Reconsideration: RULES Sea Gull Lighting Products; Riverside, NJ, 62324–62325 Standard for the Flammability of Clothing Textiles: Solicitation for Grant Applications (SGA): Correcting Amendments, 62187–62189 Community-Based Job Training Grants, 62325

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Termination of Investigation: Federal Highway Administration Northern Technologies; Spokane Valley, WA, 62325 NOTICES Premier Manufacturing Support Services; Shreveport, LA, Publication of Final Guidance on the Congestion Mitigation 62325 and Air Quality Improvement (CMAQ) Program, 62362–62379 Employment Standards Administration See Wage and Hour Division Federal Housing Financing Agency NOTICES Energy Department Federal Home Loan Bank Members Selected for Community See Federal Energy Regulatory Commission Support Review, 62276–62293 See Southwestern Power Administration Federal Reserve System Engineers Corps NOTICES NOTICES Change in Bank Control Notices; Acquisition of Shares of Environmental Impact Statements; Availability, etc.: Bank or Bank Holding Companies, 62293–62294 Hamilton Wetland Restoration Project, Dredged Material Formations of, Acquisitions by, and Mergers of Bank Aquatic Transfer Facility in Marin County, CA, Holding Companies, 62294 62262 Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies that are Engaged in Environmental Protection Agency Permissible Nonbanking Activities, 62294 PROPOSED RULES Federal Trade Commission National Emission Standards: Halogenated Solvent Cleaning, 62384–62408 NOTICES NOTICES Granting of Request for Early Termination of the Waiting Proposed Agreement and Covenant Not to Sue Pursuant to Period Under the Premerger Notification Rules, 62294– the Comprehensive Environmental Response, 62296 Compensation, and Liability Act: Fish and Wildlife Service Elizabeth Mine Superfund Site, Located in Strafford and NOTICES Thetford, VT, 62275 Final Comprehensive Conservation Plan and Finding of No Significant Impact; Availability: Federal Communications Commission Lake Woodruff National Wildlife Refuge, Lake and PROPOSED RULES Volusia Counties, Florida, 62305 Television Broadcasting Services: Proposed Candidate Conservation Agreement with Danville, KY, 62238–62239 Assurances for the Black-tailed Prairie Dog, Mountain Huntsville, AL, 62237–62238 Plover, Burrowing Owl, and Ferruginous Hawk for the Omaha, NE, 62239 NOTICES 4W, 62305–62307 Radio Broadcasting Services: Proposed Low Effect Habitat Conservation for West Colton AM or FM Proposals to Change the Community of Terminal Temporary Ethanol Transloading Facility, License, 62275–62276 City of Rialto, County of San Bernardino, CA, 62307– 62308 Federal Deposit Insurance Corporation Proposed Otay Water District Low Effect Habitat NOTICES Conservation Plan for the Quino Checkerspot Butterfly Meetings; Sunshine Act, 62276 and Coastal California Gnatcatcher, 62308–62310 TakeMeFishing.org Website Advertising Guidelines, 62310– Federal Election Commission 62312 PROPOSED RULES Food and Drug Administration Increased Contribution and Coordinated Party Expenditure NOTICES Limits for Candidates Opposing Self-financed Draft Guidance for Industry on Tropical Disease Priority Candidates, 62224–62229 Review Vouchers; Availability, 62298–62299 Federal Emergency Management Agency Foreign-Trade Zones Board NOTICES NOTICES Compendium of Flood Map Changes, 62301–62302 Approval for Expansion of Subzone 50I, Ultramar Inc. (Oil Disaster Declarations: Refinery), Wilmington, CA, 62248 Illinois, 62302 Indiana, 62302–62303 Health and Human Services Department New Hampshire, 62303 See Centers for Disease Control and Prevention Puerto Rico, 62303–62304 See Children and Families Administration See Food and Drug Administration Federal Energy Regulatory Commission See National Institutes of Health PROPOSED RULES RULES Mandatory Reliability Standards for Critical Infrastructure Group Health Plans and Health Insurance Issuers Under Protection, 62229 Newborns’ and Mothers’ Health Protection Act, 62410– NOTICES 62429 Combined Notice of Filings, 62266–62268 NOTICES Meeting, Vote, Explanation of Action Closing Meeting and Committees; Establishment, Renewal, Termination, etc.: List of Persons to Attend, 62268–62269 National Vaccine Advisory Committee, 62296–62297

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Meetings: Labor Statistics Bureau National Biodefense Science Board, 62297 NOTICES Agency Information Collection Activities; Proposals, Homeland Security Department Submissions, and Approvals, 62325–62326 See Coast Guard See Federal Emergency Management Agency Land Management Bureau See Transportation Security Administration NOTICES PROPOSED RULES Alaska Native Claims Selection, 62312–62313 Privacy Act of 1974: Filing of Plats of Survey: Implementation of Exemptions; Grievances, Appeals, and Oregon/Washington, 62313 Disciplinary Action System of Records, 62214–62215 Maritime Administration Industry and Security Bureau NOTICES Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 62379–62380 Announcement of Performance Review Board Members, 62248 Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation Interior Department NOTICES See Fish and Wildlife Service Agency Information Collection Activities; Proposals, See Land Management Bureau Submissions, and Approvals, 62339–62340 See National Park Service See Reclamation Bureau National Archives and Records Administration NOTICES Internal Revenue Service Temporary Change in Hours at Central Plains Regional RULES Archives, Kansas City, MO., 62340–62341 Group Health Plans and Health Insurance Issuers Under Newborns’ and Mothers’ Health Protection Act, 62410– National Credit Union Administration 62429 NOTICES Section 1367 Regarding Open Account Debt, 62199–62203 Agency Information Collection Activities; Proposals, Unified Rule for Loss on Subsidiary Stock: Submissions, and Approvals, 62341 Correcting Amendment, 62204–62205 Correction, 62203–62204 National Institutes of Health NOTICES International Trade Administration Meetings: NOTICES National Cancer Institute, 62299–62300 Announcement of Performance Review Board Members, National Center for Complementary and Alternative 62249 Medicine, 62300 Antidumping: National Eye Institute, 62300–62301 Chlorinated Isocyanurates from China, 62249–62250 National Institute of Neurological Disorders and Stroke, Cut-to-Length Carbon Steel Plate from China, 62250– 62301 62252 Sodium Metal from France, 62252–62255 National Oceanic and Atmospheric Administration Information and Communication Technologies; Request for RULES Public Comment, 62255–62256 Fisheries of the Exclusive Economic Zone Off Alaska: Hook-and-Line Gear in the Gulf of Alaska, 62212–62213 PROPOSED RULES International Trade Commission Fisheries of the Exclusive Economic Zone Off Alaska: NOTICES Revisions to the Pollock Trip Limit Regulations in the Investigations: Gulf of Alaska, 62241–62245 Ball Bearings from Japan and the United Kingdom, NOTICES 62317–62318 Agency Information Collection Activities; Proposals, Certain Frozen Fish Fillets from Vietnam, 62318 Submissions, and Approvals, 62256–62257 Crawfish Tail Meat from China, 62318–62319 Endangered and Threatened Species; Recovery Plan for White Abalone, 62257–62258 Labor Department See Employee Benefits Security Administration National Park Service See Employees’ Compensation Appeals Board NOTICES See Employment and Training Administration National Register of Historic Places; Notification of Pending See Labor Statistics Bureau Nominations and Related Actions, 62313–62314 See Occupational Safety and Health Administration See Wage and Hour Division National Science Foundation NOTICES NOTICES Agency Information Collection Activities; Proposals, Permit Applications Received Under the Antarctic Submissions, and Approvals, 62319–62320 Conservation Act of 1978 (P.L. 95-541), 62341 Meetings: Permits Issued Under the Antarctic Conservation Act of Advisory Committee on Job Corps, 62320 1978 (P.L. 95-541), 62341–62342

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National Telecommunications and Information Delegation by the Secretary of State to the Under Secretary Administration for Arms Control and International Security of Authorities, 62361–62362 NOTICES Docket No. 0810141353 - 81354 - 01 Surface Transportation Board Public Telecommunications Facilities Program: Closing NOTICES Date, 62258–62259 Meetings: Rail Energy Transportation Advisory Committee, 62380 Nuclear Regulatory Commission PROPOSED RULES Thrift Supervision Office Denial of Petition for Rulemaking: NOTICES Thomas E. Magette on Behalf of EnergySolutions, LLC, Agency Information Collection Activities; Proposals, 62220–62224 NOTICES Submissions, and Approvals, 62380–62382 Atomic Safety and Licensing Board Panel Hearing: Tennessee Valley Authority, 62342–62343 Transportation Department Environmental Assessment and Finding of No Significant See Federal Highway Administration Impact: See Maritime Administration Firstenergy Nuclear Operating Co. et al., 62343–62344 See Surface Transportation Board Occupational Safety and Health Administration Transportation Security Administration NOTICES NOTICES Nationally Recognized Testing Laboratories; Suppliers Agency Information Collection Activities; Proposals, Declaration of Conformity, 62327–62339 Submissions, and Approvals, 62304–62305

Patent and Trademark Office Treasury Department NOTICES See Internal Revenue Service Grant of Interim Extension of the Term of U.S. Patent No. See Thrift Supervision Office 4,919,140; Andara OFS System, 62260 RULES TARP Capital Purchase Program, 62205–62210 Reclamation Bureau NOTICES Wage and Hour Division Privacy Act; Systems of Records, 62314–62317 PROPOSED RULES Protecting the Privacy of Workers: Securities and Exchange Commission Labor Standards Provisions Applicable to Contracts NOTICES Covering Federally Financed and Assisted Program for Allocation of Regulatory Responsibilities: Construction, 62229–62234 American Stock Exchange LLC, et al., 62344–62350 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 62350–62352 New York Stock Exchange LLC, 62352–62354 Separate Parts In This Issue NYSE Arca, Inc., 62354–62358 Part II Small Business Administration Environmental Protection Agency, 62384–62408 NOTICES Disaster Declarations: Part III Oklahoma, 62359 Health and Human Services Department; Labor Department, Puerto Rico, 62359 Employee Benefits Security Administration; Treasury Department, Internal Revenue Service, 62410–62429 Southwestern Power Administration NOTICES Integrated System Rate Schedule Changes, 62269–62275 Reader Aids State Department Consult the Reader Aids section at the end of this issue for RULES phone numbers, online resources, finding aids, reminders, Board of Appellate Review; Review of Loss of Nationality, and notice of recently enacted public laws. 62196–62197 To subscribe to the Federal Register Table of Contents Uncertified Foreign Health-Care Workers, 62197–62198 LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency Information Collection Activities; Proposals, archives, FEDREGTOC-L, Join or leave the list (or change Submissions, and Approvals, 62359–62361 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR 62238, 62239 Administrative Orders: 48 CFR Notices: 215...... 62211 Notice of October 16, 252...... 62211 2008 ...... 62433 Proposed Rules: 6 CFR 204...... 62239 217...... 62239 Proposed Rules: 5...... 62214 50 CFR 679...... 62212 7 CFR Proposed Rules: Proposed Rules: 679...... 62241 946...... 62215 966...... 62218 10 CFR Proposed Rules: 50...... 62220 11 CFR Proposed Rules: 100...... 62224 101...... 62224 102...... 62224 104...... 62224 110...... 62224 113...... 62224 116...... 62224 400...... 62224 9001...... 62224 9003...... 62224 9031...... 62224 9033...... 62224 9035...... 62224 16 CFR 1610...... 62187 18 CFR Proposed Rules: 40...... 62229 20 CFR 501...... 62190 22 CFR 7...... 62196 40...... 62197 50...... 62196 26 CFR 1 (3 documents) ...... 62199, 62203, 62204 54...... 62410 29 CFR 2590...... 62410 Proposed Rules: 3...... 62229 5...... 62229 31 CFR 30...... 62205 33 CFR Proposed Rules: 165...... 62235 40 CFR Proposed Rules: 63...... 62384 42 CFR 34...... 62210 45 CFR 144...... 62410 146...... 62410 148...... 62410 47 CFR Proposed Rules: 73 (3 documents) ...... 62237,

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Rules and Regulations Federal Register Vol. 73, No. 203

Monday, October 20, 2008

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: The U.S. ■ a. In paragraph (a)(3)(v) remove the contains regulatory documents having general Consumer Product Safety Commission word ‘‘dessicant’’ and add, in its place applicability and legal effect, most of which published in the Federal Register of ‘‘desiccant’’. are keyed to and codified in the Code of March 25, 2008, (73 FR 15636) an ■ b. Revise paragraph (b)(1)(ii) to read as Federal Regulations, which is published under amendment to the Standard for the 50 titles pursuant to 44 U.S.C. 1510. follows: Flammability of Clothing Textiles, 16 § 1610.6 Test procedure. The Code of Federal Regulations is sold by CFR Part 1610. As published, the rule the Superintendent of Documents. Prices of contained some incorrect typographical * * * * * new books are listed in the first FEDERAL symbols and inadvertent technical (b) * * * REGISTER issue of each week. errors in the text and drawings. This (1) * * * document corrects those symbols and errors. (ii) Laundering procedure. The CONSUMER PRODUCT SAFETY sample, after being subjected to the dry COMMISSION List of Subjects in 16 CFR part 1610 cleaning procedure, shall be washed and dried one time in accordance with Clothing, Consumer protection, 16 CFR Part 1610 sections 8.2.2, 8.2.3 and 8.3.1(A) of Flammable materials, Incorporation by AATCC Test Method 124–2006 reference, Reporting and recordkeeping Standard for the Flammability of ‘‘Appearance of Fabrics after Repeated requirements, Textiles, Warranties. Clothing Textiles; Corrections Home Laundering’’ (incorporated by ■ Accordingly, 16 CFR part 1610 is AGENCY: Consumer Product Safety reference at § 1610.6(b)(1)(B)(iii)). corrected by making the following Commission. Washing shall be performed in correcting amendments: accordance with sections 8.2.2 and 8.2.3 ACTION: Correcting amendments. of AATCC Test Method 124–2006 using PART 1610—STANDARD FOR THE SUMMARY: The U.S. Consumer Product AATCC 1993 Standard Reference Safety Commission published in the FLAMMABILITY OF CLOTHING Detergent, powder and wash water Federal Register of March 25, 2008, a TEXTILES temperature (IV) (120° ± 5 °F; 49° ± ° final rule amending its flammability ■ 1. The authority citation for part 1610 3 C) specified in Table II of that standard for general wearing apparel, continues to read as follows: method, and the water level, agitator the Standard for the Flammability of speed, washing time, spin speed and Clothing Textiles, 16 CFR Part 1610. Authority: 15 U.S.C. 1191–1204. final spin cycle specified for ‘‘Normal/ The published rule contained some ■ 2. Revise the last sentence of Cotton Sturdy’’ in Table III of that incorrect typographical symbols and paragraph (a)(1)(vii) of § 1610.5 to read method. A maximum wash load shall be other inadvertent errors. This document as follows: 8 pounds (3.63 kg) and may consist of corrects those symbols and errors. any combination of test samples and DATES: Effective on October 20, 2008. § 1610.5 Test apparatus and materials. dummy pieces. Drying shall be FOR FURTHER INFORMATION CONTACT: (a) * * * performed in accordance with section 8.3.1(A) of that test method, Tumble Mary Toro, Directorate for Compliance (1) * * * and Field Operations, Consumer Dry, using the exhaust temperature (vii) * * * The weight shall be 30g ± Product Safety Commission, 4330 East (150° ± 10 °F; 66° ± 5 °C) and cool down 5g (1.16 oz. ± 0.18 oz). West Highway, Bethesda, Maryland time of 10 minutes specified in the 20814–4408; telephone (301) 504–7586; * * * * * ‘‘Durable Press’’ conditions of Table IV. e-mail [email protected]. ■ 3. Amend § 1610.6 as follows: * * * * *

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■ 3. Revise Figure 6 to Part 1610 as Figure 6 to Part 1610 An Example of a follows: Typical Igniter

BILLING CODE 6355–01–P

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■ 4. Revise Figure 9 to Part 1610 as Figure 9 to Part 1610 An Example of a follows: Typical Brushing Device Template

Dated: October 10, 2008. Todd A. Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. E8–24712 Filed 10–17–08; 8:45 am] BILLING CODE 6355–01–C

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DEPARTMENT OF LABOR On June 20, 2008, the Board No other comments were received published a Notice of Proposed regarding section 501.1, and in all other Employees’ Compensation Appeals Rulemaking (NPRM), 73 FR 35102, respects (except for grammatical Board proposing the first major revisions to its corrections to subsections (h) and (j)), rules of procedure in 46 years. section 501.1 is adopted as proposed in 20 CFR Part 501 This final rule adopts, for the most the NPRM and for the reasons identified RIN 1290–AA22 part, the provisions that were proposed in the NPRM. in the June 20, 2008 NPRM. A few Section 501.2 Scope and Applicability Rules of Procedure provisions have been modified in of Rules; Compensation and Jurisdiction response to public comments, and a few AGENCY: Employees’ Compensation of the Board additional edits have been made to Appeals Board, Labor. The NPRM proposed clarifications clarify text, correct typographical errors, ACTION: Final rule. and updates to this section. No or make style consistent. A total of ten comments were received concerning SUMMARY: The Department of Labor timely comments were received, two of section 501.2. Accordingly, section (DOL or Department) is publishing this which were later withdrawn by the 501.2 is adopted in the final rule as final rule to update the regulations commenter. Additionally, one untimely proposed for the reasons identified in providing for appeals before the comment was received one day past the the NPRM. comment deadline. The discussion Employees’ Compensation Appeals Section 501.3 Notice of Appeal Board (Board). The Board has below in Section II, Section-By-Section jurisdiction over appeals arising under Analysis of Comments and Revisions, Section 501.3 clarifies the the Federal Employees’ Compensation identifies the significant issues raised in requirements for a Notice of Appeal. Act (FECA). 5 U.S.C. 8149. This final non-withdrawn comments, provides the Four comments were received regarding rule updates the rules and guidance to Board’s responses to those comments, this section. all federal employees who seek to and explains any resulting changes to Paragraph (e) to the NPRM proposed appeal from the decisions of the Office the proposed rule. Except as specifically that 180 days would be provided for the of Workers’ Compensation Programs addressed in the Section-by-Section filing of all appeals, regardless of where (OWCP) under FECA. Analysis, the final rule adopts the the Appellant lives. The 180 day filing proposed provisions and reasoning window is a change from the current DATES: These regulations are effective explained in the June 20, 2008 NPRM. rule, which provides a filing window of November 19, 2008. These regulations 90 days for persons living in the United are applicable to all Board appeals filed II. Section-by-Section Analysis of States or Canada, and 180 days for from OWCP decisions issued on and Comments and Revisions persons living outside the United States after November 19, 2008. Section 501.1 Definitions or Canada. Additionally, paragraph (e) FOR FURTHER INFORMATION CONTACT: Alec proposed that should compelling J. Koromilas, Chairman and Chief Judge, This section defines selected terms in circumstances prevent an Appellant Employees’ Compensation Appeals this rule. The NPRM proposed to from meeting this 180-day limitation, Board, 200 Constitution Avenue, NW., replace the term ‘‘party’’ with the terms the Board would have retained Room S–5220, Washington, DC 20210; ‘‘Director,’’ ‘‘Appellant’’ and discretion to extend this time period, e-mail [email protected]; Telephone ‘‘Representative’’ in paragraphs (f), (g), but only on specific application to the (202) 693–6406 (voice) (this is not a toll- and (h). The NPRM also proposed to Board and upon satisfactory free number). Individuals with hearing incorporate the definition of ‘‘counsel’’ demonstration of ‘‘compelling or speech impairments may access the into the definition of ‘‘Representative’’ circumstances.’’ telephone number above via TTY by in the proposed paragraph (h). One An administrative law representative calling the toll-free Federal Information comment was received regarding section who appears before the Board requested Relay Service at (800) 877–8339. 501.1 the day after the comment period clarification regarding whether ‘‘the SUPPLEMENTARY INFORMATION: closed. This comment, however, has time limitation of an automatic one year been considered. The commenter, who for filing [an appeal before the Board] is I. Current Regulations and Rulemaking described himself as a tribal court judge to be discontinued.’’ The current History who also represents claimants before the regulation at 20 CFR 501.3(d)(2) does This rule implements updates and Board, expressed concern that the not provide an ‘‘automatic’’ one-year revisions to the Rules of Procedure for breadth of the definition of counsel and time period to file an appeal with the practice before the Employees’ attorney in subsection (h) was too Board. Rather, it provides that, ‘‘[f]or Compensation Appeals Board (Board). narrow to include all attorneys in good good cause shown,’’ the Board in its The Board was created by the standing to provide representation to discretion may waive a failure to appeal Reorganization Plan No. 2 of 1946 and claimants, and in particular to include within the current 90 or 180 day transferred to the Department of Labor members of tribal bars or those admitted window, ‘‘but for no longer than one in 1950 by Reorganization Plan No. 19 to practice before tribal courts. To year from the date of issuance of the of 1950. See 5 U.S.C. 8145 notes. Under clarify this definition, and to final decision of the Director.’’ The the Federal Employees’ Compensation specifically include the tribal bar and NPRM acknowledged that the ‘‘good Act (FECA), the Secretary of Labor must tribal court members referenced by the cause’’ standard has not been enforced provide for an Employees’ comment, the Board has amended the in practice, and stated that the proposed Compensation Appeals Board ‘‘* * * definition of representative in section new standard was intended to provide with the authority to hear and, subject 501.1(h) to include any individual ‘‘who an ‘‘objective standard’’ as a substitute. to applicable law and the rules and is admitted to practice and is in good By defining compelling circumstances regulations of the Secretary, make final standing with any court of competent as those circumstances beyond the decisions on appeals taken from jurisdiction.’’ The language in section Appellant’s control, by explicitly stating determinations and awards with respect 501.9(a)(1) has been similarly revised that compelling circumstances do not to claims of employees.’’ 5 U.S.C. 8149. for consistency in this rule. include ‘‘any delay caused by the failure

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of an individual to exercise due used to determine timeliness in all cases Section 501.4 Case Record; Inspection; diligence in submitting a notice of except where USPS mailing services Submission of Pleadings and Motions appeal,’’ and by stating that appeals were used. In that circumstance, the Section 501.4 contains clarifications ‘‘must’’ be filed within 180 days, the Board would continue to look to the regarding inspection of the Board’s NPRM proposed a new rule of date of mailing to establish timeliness if docket and the procedures for procedure that would depart from and the date of receipt by the Clerk would submitting pleadings and motions for supersede any past practice in this area. make the appeal untimely. An consideration by the Board during the To further address this comment, the administrative law representative pendency of an appeal. No comments Board has more fully articulated that questioned this differentiation in were received regarding this section. compelling circumstances mean treatment between documents delivered Accordingly, section 501.4 is adopted in circumstances beyond the Appellant’s by USPS and other commercial carriers, the final rule as proposed. control ‘‘that prevent the timely filing of contending that tracking documentation an appeal,’’ expanding the language of Section 501.5 Oral Argument can also be provided when commercial the final rule to demonstrate that carriers are used. The Board has Section 501.5, in its current and ‘‘compelling circumstances’’ is meant to considered the points raised by this proposed form, contains the procedures represent a more stringent standard than for requesting and conducting oral under the current rule. For example, comment and has revised subsection arguments. The NPRM in paragraph (a) ‘‘compelling circumstances’’ could (f)(1) in the final rule to provide that provided that the granting of oral include a medical condition that documentation from either the USPS or argument is within the discretion of the renders the Appellant incompetent or a commercial carrier can be used to Board and not automatically scheduled military service in a war zone that determine whether the appeal is timely. upon the request of an Appellant or the prevents the timely filing of an appeal. A USPS postmark or ‘‘other carriers’ Director. A Federal employee objected Therefore, any past practice of date markings’’ will be considered only to this change in the availability of oral effectively providing one year for filing where an appeal is addressed and sent argument, contending that this would be an appeal by not enforcing the directly to the Board as set forth in these a ‘‘serious diminishment in a basic regulatory requirement that Appellants rules; this provision does not apply tenant [sic] in our adversarial system’’ show good cause for failure to file where Board appeals are mistakenly for federal employees who bring their within 90 days is discontinued by this sent to an improper place (for example, appeals before the Board. Contrary to final rule. OWCP, Congressional offices, and the the view expressed in this comment, Another individual commented that employing agency). Where the Board 90 days is ample time for the filing of proceedings under the FECA are not has received appeals by any method adversarial in nature. See, e.g., Owens v. an appeal worldwide and that to other than USPS or commercial carrier, provide a 180-day appeal window Brock, 860 F.2d 1363, 1367 (6th Cir. the Clerk’s receipt will be used to 1988); William B. Webb, 56 ECAB 156, further overburdens an already determine timeliness. overburdened system. As just discussed, 159 (2004); Norman M. Perras, 49 ECAB the Board’s changes to this regulation Paragraph (h) in the NPRM proposed 191, 193(1997); see also 20 CFR discontinue the current practice of to amend the procedures used by the 10.11(b). While the Board acknowledges generally permitting one year for filing Clerk upon receipt of an incomplete that oral argument in some instances appeals. Thus adoption of a uniform appeal and clarify that it is the Clerk can provide the Board valuable 180-day timeframe will effectively who will specify a reasonable time for assistance in addressing and evaluating reduce the time to appeal, which is the an Appellant to submit all required the issues presented on appeal, the practical result sought by the information missing from an appeal. A Board has concluded that the automatic commenter, while still giving claimants comment by the administrative law availability of oral argument on request and their representatives adequate time representative expressed concern that of an Appellant or the Director is not to file an appeal. The Board believes ‘‘reasonable time’’ is not adequately always necessary. To best use Board that a 180-day time limit to appeal an defined, and sought a more specific resources, this final rule provides the OWCP decision strikes the appropriate definition to insure there would be no opportunity for Appellants to request balance between the 90-day and one- abuse of discretion. While the Board oral argument should their case present, year periods provided by the considered this comment, the Board for example, an issue not previously combination of the current rules and determined that the procedures considered by the Board, or a perceived current practice, creating a more proposed in the NPRM are reasonable conflict between Board decisions on efficient uniform time frame and still and adequate. The Board did not set a similar issues. Appellants seeking oral providing ample time for all claimants fixed time for submission of missing argument must follow the procedure in to exercise their appellate rights. information because the scope and § 501.5(b) to identify the need for oral The commenter also recommended volume of missing information varies, argument. that the Board provide a clear statement and the Board intends to allow the Clerk After reviewing the above comment, that its decisions are final. We have flexibility to work with Appellants to the Board has determined that no considered this comment, but have not perfect their appeals, or clarify the changes are necessary to the language changed the rule in the manner status of their appeal requests. proposed for this section. Accordingly, requested, because 5 U.S.C. 8149 of the section 501.5 is adopted in the final rule FECA clearly states that the decisions of After reviewing all the comments as proposed in the NPRM. the Board are final. regarding section 501.3, the Board has Section 501.3(f) proposed amending revised § § 501.3(e) and (f)(1) as noted Section 501.6 Decisions and Orders the date of filing requirements. The above, and included minor language This section contains the Board’s proposed language acknowledged that changes to this section to create practice in the issuance of decisions and Appellants could file appeals using consistency in style or clarify the text. orders. No comments were received commercial delivery services or the U.S. In all other respects, section 501.3 is regarding this section. Accordingly, Postal Service, but provided that the adopted as proposed and justified in the section 501.6 is adopted in the final rule date of receipt by the Clerk would be NPRM. as proposed.

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Section 501.7 Petition for representative is temporarily breakdown. Appeals brought before the Reconsideration unavailable. Nothing in this rule Board vary widely in complexity as well Section 501.7 provides the Board’s prevents this practice. as the extent of representation provided Another comment received from an practice and procedures regarding to Appellants. Customary charges also administrative law representative requests for reconsideration. No vary by locality and the expertise the questioned whether the statement in representative provides. The final rule comments were received regarding this subsection (a)(2) that a lay therefore provides for this process and section. Accordingly, section 501.7 is representative ‘‘may be an accredited specifies that all fees proposed by any adopted in the final rule as proposed. Representative of an employee representative with respect to an appeal Section 501.8 Clerk of the Office of the organization’’ was intended to exclude must be filed with the Board for Appellate Boards; Docket of all others from the role of ‘‘Law consideration and approval. Proceedings; Records Representatives’’ authorized by the rule. The commenter also advocated that It was not. The referenced language the Board utilize the provisions of 38 Section 501.8 provides information merely provides an example of one type U.S.C. 5904, which recognizes a 20% regarding the Clerk’s office, the docket of lay representative that may appear contingency fee as reasonable in and record maintained by the Board. No before the Board. The first sentence in veterans’ cases before the Department of comments were received regarding this subsection (a)(2)—‘‘A non-attorney Veterans Affairs (VA). The commenter section. Accordingly, section 501.8 is Representative may represent an further contended that the requirement adopted in the final rule as proposed. Appellant before the Board’’—is all to submit fee requests for the Board’s Section 501.9 Representation; inclusive and does not restrict an approval is ‘‘discriminatory’’ in that it Appearances and Fees Appellant from representation by sets a different fee review policy than anyone of his or her choosing. utilized by the VA. Review and Section 501.9 incorporates and Proposed § 501.9(e) clarified the approval by the Secretary of Labor of fee expands upon who may represent a requirements regarding review of all fee requests are specifically required by claimant before the Board, and what applications to ensure that Appellants FECA. The provisions of 5 U.S.C. 8127 fees they may charge. In the NPRM, are aware of and understand the are controlling in consideration of subsection (a)(1) defined counsel as ‘‘an mandatory requirement for Board representative fees in appeals brought attorney who has been admitted to consideration and approval of any before the Board under FECA. That practice before the Supreme Court of the Representative or attorney fee. A provision specifies that ‘‘(a) A claimant United States or the highest court of any representative who practices before the may authorize an individual to state, the District of Columbia, or a Board contended that the language ‘‘in represent him in any proceeding under United States territory and who is in connection with a proceeding before the this subchapter before the Secretary of good standing with that bar.’’ The Board’’ is misleading. Arguing that all Labor. (b) A claim for legal or other commenter, who described himself as a proceedings following an appeal to the services furnished in respect to a case, tribal court judge who also acts as a Board have a ‘‘connection’’ with the claim, or award for compensation under claimant’s representative, expressed Board, this commenter questioned this subchapter is valid only if approved concern that the definition of ‘‘counsel’’ whether the Board intended to review by the Secretary.’’ The Board has found was too narrow. For the reasons all fee requests, even for work before the that the use of contingency fees by discussed in relation to 501.1, the Board OWCP following disposition of an attorneys handling FECA claims before has amended the definition of appeal. The Board does not. Approval of OWCP is not in keeping with section representative in section 501.9(a)(1) to fee requests for representative services 8127. In Angela M. Sanden, Docket No. include any individual ‘‘who is before OWCP must be submitted 04–1632 (issued September 20, 2004), admitted to practice and is in good directly to OWCP for consideration the representative’s contingency fee standing with any court of competent under OWCP’s own regulations (see 20 arrangement was held to be illegal, and jurisdiction.’’ The NPRM and this final CFR Part 10) and are not the subject of the representative directed to calculate rule allow an Appellant to be this rule. To ensure that this intent is the money owed for services rendered represented in a proceeding before the clearly articulated in this subsection, on an hourly basis. Furthermore, the Board not only by an attorney, but the Board has revised the language in provisions of FECA are controlling for alternatively by a lay representative. the final rule to read ‘‘performed on fees resulting from Board proceedings, A commenter who represented appeal before the Board.’’ not those governing another Federal Appellants before the Board urged the Paragraph (e) also expands the list of agency whose decisions are not binding Board to expand the definition of factors that the Board will evaluate on the Board. Hazelee K. Anderson, 37 counsel under subsection (a) to include when reviewing fee requests. One ECAB 277 (1986). Thus, no changes to ‘‘law firms instead of limiting commenter questioned the meaning of the final rule have been made as a result representation purely to individual ‘‘de minimis’’ in regard to the Board’s of the Board’s consideration of this attorneys.’’ The commenter noted that consideration of fees charged, comment. an expanded definition of representative contending that the term is vague and Another claimant’s representative will make it easier for law firms to undefined. Determinations regarding who appears before the Board continue representation when a what fees constitute ‘‘de minimis’’ commented that section 501.9 should be designated attorney is ill, on vacation, charges will be made on a case-by-case expanded to allow for law firms to bill or otherwise unavailable. The Board basis with the understanding that the for the services of paralegals and other considered this comment but does not term ‘‘de minimis’’ connotes a minimal experts, to supplement and support the believe that a change in the language of or nominal fee. See, e.g., Black’s Law work of the individual identified as the the rule is necessary. The Board Dictionary, 464 (8th ed. 2004). For Appellant’s Representative of record. recognizes that if the representative of example, if an attorney charged a These charges, as well as related record is a member of a law firm, the nominal flat-rate fee for all of his or her services, are among those envisioned in representative may look to another services before the Board, the fee FECA as ‘‘other services furnished in member of his or her firm to provide request would not be denied by the respect to a case, claim or award’’ under services, particularly if the Board solely because it lacked an hourly 5 U.S.C. 8127(b), as they are specifically

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performed and billed for work on the Federal mandate that may result in (d) Judge or Alternate Judge means a individual case for which a fee approval increased expenditures by State, local, member designated and appointed by is requested by an attorney or a lay and tribal governments, in the aggregate, the Secretary of Labor with authority to representative. The Board will consider of $100 million or more, or increased hear and make final decisions on such fee requests for work performed on expenditures by the private sector of appeals taken from determinations and appeal under subsection (e)(5), which $100 million or more. awards by the OWCP in claims arising allows consideration of ‘‘customary Executive Order 12875—This rule under the FECA. local charges.’’ does not create an unfunded Federal (e) OWCP means the Office of In addition to the revisions discussed mandate upon any State, local or tribal Workers’ Compensation Programs, above to section 501.9, the text of governments. Employment Standards Administration, subsection (d) was clarified to address The Privacy Act of 1974, 5 U.S.C. 552a, U.S. Department of Labor. an internal inconsistency in the NPRM. as Amended (f) Director means the Director of the In all other respects, the final rule is Office of Workers’ Compensation identical to the rule proposed in the The Department has determined this Programs or a person delegated NPRM. rule does not require that any new authority to perform the functions of the information be processed, filed or III. Regulatory Procedures Director. The Director of OWCP is collected during an appeal before the represented before the Board by an Executive Order 12866 Board under the Privacy Act, 5 U.S.C. attorney designated by the Solicitor of 552a. Therefore, this rule does not The Department is issuing this final Labor. require revision of the current Privacy rule in conformance with Executive (g) Appellant means any person Act System of Records, DOL/GOVT–1, Order 12866. The Department has adversely affected by a final decision or Office of Workers’ Compensation determined that this rule does not order of the OWCP who files an appeal Programs, Federal Employees’ materially alter the budgetary impact of to the Board. Compensation Act File, 67 FR 16826 entitlements, grants, user fees, or loan (h) Representative means an (April 8, 2002) and DOL/ECAB–1, programs; nor will it have an annual individual properly authorized by an Employees’ Compensation Appeals effect on the economy of $100 million Appellant in writing to act for the Board Docket Records, 67 FR 16867 or more; nor will it adversely affect the Appellant in connection with an appeal (April 8, 2002). economy, a sector of the economy, before the Board. The Representative productivity, competition, jobs, the List of Subjects in 20 CFR Part 501 may be any individual or an attorney who has been admitted to practice and environment, public health or safety, or Administrative practice and who is in good standing with any court State, local or tribal governments or procedure, Workers’ compensation. communities in any material way. of competent jurisdiction. Furthermore, it does not raise a novel Signed at Washington, DC, on October 6, (i) Decision, as prescribed by 5 U.S.C. 2008. legal or policy issue arising out of legal 8149 of the FECA, means the final mandates, the President’s priorities or Howard M. Radzely, determinative action made by the Board the principles set forth in the Executive Deputy Secretary, U.S. Department of Labor. on appeal of a claim. Order. This rulemaking is therefore not ■ For the reasons set forth in the (j) Clerk or Office of the Clerk means significant under Executive Order preamble, 20 CFR Part 501 is hereby the Clerk of the Office of the Appellate 12866. revised to read as follows: Boards. Regulatory Flexibility Act of 1980 PART 501—RULES OF PROCEDURE § 501.2 Scope and applicability of rules; composition and jurisdiction of the Board. This final rule has been thoroughly Sec. (a) The regulations in this part reviewed in accordance with the 501.1 Definitions. Regulatory Flexibility Act of 1980, as establish the Rules of Practice and 501.2 Scope and applicability of rules; Procedure governing the operation of amended by the Small Business composition and jurisdiction of the Regulatory Enforcement Fairness Act of Board. the Employees’ Compensation Appeals 1996, 5 U.S.C. 601–612. The Department 501.3 Notice of appeal. Board. has determined that the final rule does 501.4 Case record; inspection; submission (b) The Board consists of three not involve any regulatory and of pleadings and motions. permanent judges, one of whom is informational requirements regarding 501.5 Oral argument. designated as Chief Judge and Chairman 501.6 Decisions and orders. of the Board, and such alternate judges businesses, organizations, and 501.7 Petition for reconsideration. governmental jurisdictions subject to as are appointed by the Secretary of 501.8 Clerk of the Office of the Appellate Labor. The Chief Judge is the regulation. Boards; docket of proceedings; records. 501.9 Representation; appearances and fees. administrative officer of the Board. The Paperwork Reduction Act (PRA) functions of the Board are quasi- Authority: Federal Employees’ judicial. For organizational purposes, The Department has determined that Compensation Act (FECA), 5 U.S.C. 8101 et this rule is not subject to the seq. the Board is placed in the Office of the requirements of the Paperwork Secretary of Labor and sits in Reduction Act, 44 U.S.C. 3501 et seq., § 501.1 Definitions. Washington, DC. as this rulemaking involves (a) FECA means the Federal (c) The Board has jurisdiction to administrative actions to which the Employees’ Compensation Act, 5 U.S.C. consider and decide appeals from final Federal government is a party and that 8101 et seq. and any statutory extension decisions of OWCP in any case arising occur after an administrative case file or application thereof. under the FECA. The Board may review has been opened regarding a particular (b) The Board means the Employees’ all relevant questions of law, fact and individual. See 5 CFR 1320.4(a)(2), (c). Compensation Appeals Board. exercises of discretion (or failure to (c) Chief Judge and Chairman of the exercise discretion) in such cases. Unfunded Mandates Reform Board means the Chairman of the (1) The Board’s review of a case is Unfunded Mandates Reform Act of Employees’ Compensation Appeals limited to the evidence in the case 1995—This rule does not include any Board. record that was before OWCP at the time

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of its final decision. Evidence not before exercise due diligence in submitting a § 501.4 Case record; inspection; OWCP will not be considered by the notice of appeal. submission of pleadings and motions. Board for the first time on appeal. (f) Date of filing. A notice of appeal (a) Service on OWCP and (2) There will be no appeal with complying with paragraph (c) of this transmission of OWCP case record. The respect to any interlocutory matter section is considered to have been filed Board shall serve upon the Director a decided (or not decided) by OWCP only if received by the Clerk by the copy of each notice of appeal and during the pendency of a case. close of business within the period accompanying documents. Within 60 (3) The Board and OWCP may not days from the date of such service, the specified under paragraph (e) of this exercise simultaneous jurisdiction over Director shall provide to the Board the section, except as otherwise provided in the same issue in a case on appeal. record of the OWCP proceeding to this subsection: Following the docketing of an appeal which the notice refers. On application before the Board, OWCP does not retain (1) If the notice of appeal is sent by of the Director, the Board may, in its jurisdiction to render a further decision United States Mail or commercial discretion, extend the time period for regarding the issue on appeal until after carrier and use of the date of delivery submittal of the OWCP case record. the Board relinquishes jurisdiction. as the date of filing would result in a (b) Inspection of record. The case loss of appeal rights, the appeal will be § 501.3 Notice of Appeal. record on appeal is an official record of considered to have been filed as of the the OWCP. (a) Who may file. Any person date of postmark or other carriers’ date (1) Upon written application to the adversely affected by a final decision of markings. The date appearing on the Clerk, an Appellant may request the Director, or his or her authorized U.S. Postal Service postmark or other inspection of the OWCP case record. At Representative, may file for review of carriers’ date markings (when available the discretion of the Board, the OWCP such decision by the Board. case record may either be made (b) Place of filing. The notice of and legible) shall be prima facie available in the Office of the Clerk of the appeal shall be filed with the Clerk at evidence of the date of mailing. If there Appellate Boards for inspection by the 200 Constitution Avenue, NW., is no such postmark or date marking or Appellant, or the request may be Washington, DC 20210. it is not legible, other evidence, such as, (c) Content of notice of appeal. A but not limited to, certified mail forwarded to the Director so that OWCP notice of appeal shall contain the receipts, certificate of service and may make a copy of the OWCP case following information: affidavits, may be used to establish the record and forward this copy to the (1) Date of Appeal. mailing date. If a notice of appeal is Appellant. Inspection of the papers and (2) Full name, address and telephone delivered or sent by means other than documents included in the OWCP case number of the Appellant and the full United States Mail or commercial record of any appeal pending before the name of any deceased employee on carrier, including personal delivery or Board will be permitted or denied in whose behalf an appeal is taken. In fax, the notice is deemed to be received accordance with 5 CFR 10.10 to 10.13. addition, the Appellant must provide a when received by the Clerk. The Chief Judge (or his or her designee) signed authorization identifying the full shall serve as the disclosure officer for (2) In computing the date of filing, the purposes of Appendix A to 29 CFR Parts name, address and telephone number of 180 day time period for filing an appeal his or her Representative, if applicable. 70 and 71. begins to run on the day following the (3) Employing establishment, and the (2) Copies of the documents generated date of the OWCP decision. The last day date, description and place of injury. in the course of the appeal before the (4) Date and Case File Number of the period so computed shall be Board will be provided to the Appellant assigned by OWCP concerning the included, unless it is a Saturday, and Appellant’s Representative by the decision being appealed to the Board. Sunday or Federal holiday, in which Clerk. If the Appellant needs additional (5) A statement explaining event the period runs to the close of the copies of such documents while the Appellant’s disagreement with OWCP’s next business day. appeal is pending, the Appellant may decision and stating the factual and/or (g) Failure to timely file a notice of obtain this information by contacting legal argument in favor of the appeal. appeal. The failure of an Appellant or the Clerk. Pleadings and motions filed (6) Signature: An Appellant must sign Representative to file an appeal with the during the appeal in proceedings before the notice of appeal. Board within the period specified under the Board will be made part of the (d) Substitution of appellant: Should paragraph (e) of this section, including official case record of the OWCP. the Appellant die after having filed an any extensions granted by the Board in (c) Pleadings. The Appellant, the appeal with the Board, the appeal may its discretion based upon compelling Appellant’s Representative and the proceed to decision provided there is circumstances, will foreclose all right to Director may file pleadings supporting the substitution of a proper Appellant review. The Board will dismiss any their position and presenting information, including but not limited who requests that the appeal proceed to untimely appeal for lack of jurisdiction. decision by the Board. to briefs, memoranda of law, (e) Time limitations for filing. Any (h) Incomplete notice of appeal. Any memoranda of justification, and notice of appeal must be filed within timely notice of appeal that does not optional form AB–1. All pleadings filed 180 days from the date of issuance of a contain the information specified in must contain the docket number and be decision of the OWCP. The Board paragraph (c) of this section will be filed with the Clerk. The Clerk will maintains discretion to extend the time considered incomplete. On receipt by issue directions specifying the time period for filing an appeal if an the Board, the Clerk will inform allowed for any responses and replies. applicant demonstrates compelling Appellant of the deficiencies in the (1) The Clerk will distribute copies of circumstances. Compelling notice of appeal and specify a any pleading received by the Clerk to circumstances means circumstances reasonable time to submit the requisite ensure that the Appellant, his or her beyond the Appellant’s control that information. Such appeal will be Representative and the Director receive prevent the timely filing of an appeal dismissed unless Appellant provides all pleadings. Any pleading should be and does not include any delay caused the requisite information in the time submitted within 60 days of the filing of by the failure of an individual to specified by the Clerk. an appeal. The Board may, in its

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discretion, extend the time period for present oral argument. The Board may, matter appealed, and such decisions the submittal of any pleading. in its discretion, extend the time and orders are not subject to review, (2) Proceedings before the Board are allowed. except by the Board. The decisions and informal and there is no requirement (e) Appearances. An Appellant may orders of the Board will be final upon that any pleading be filed. Failure to appear at oral argument before the the expiration of 30 days from the date submit a pleading or to timely submit a Board or designate a Representative. of issuance unless the Board has fixed pleading does not prejudice the rights of Argument shall be presented by the a different period of time therein. either the Appellant or the Director. Appellant or a Representative, not both. Following the expiration of that time, (3) Upon receipt of a pleading, the The Director may be represented by an the Board no longer retains jurisdiction Appellant and the Director will have the attorney with the Solicitor of Labor. over the appeal unless a timely petition opportunity to submit a response to the Argument is limited to the evidence of for reconsideration is submitted and Board. record on appeal. granted. (d) Motions. Motions are requests for (f) Location. Oral argument is heard (e) Dispositive orders. The Board may the Board to take specific action in a before the Board only in Washington, dispose of an appeal on a procedural pending appeal. Motions include, but DC. The Board does not reimburse costs basis by issuing an appropriate order are not limited to, motions to dismiss, associated with attending oral argument. disposing of part or all of a case prior affirm the decision below, remand, (g) Continuance. Once oral argument to reaching the merits of the appeal. The request a substitution, request an has been scheduled by the Board, a Board may proceed to an order on its extension of time, or other such matter continuance will not be granted except own or on the written motion of as may be brought before the Board. on a showing of good cause. Good cause Appellant or the Director. Motions may be filed by the Appellant, may include extreme hardship or where (f) Service. The Board will send its the Appellant’s Representative and the attendance by an Appellant or decisions and orders to the Appellant, Director. The motion must be in writing, Representative is mandated at a his or her Representative and the contain the docket number, state the previously scheduled judicial Director at the time of issuance. relief requested and the basis for the proceeding. Any request for relief requested, and be filed with the continuance must be received by the § 501.7 Petition for reconsideration. Clerk. Any motion received will be sent Board at least 15 days before the date (a) Time for filing. The Appellant or by the Clerk to ensure that the scheduled for oral argument and be the Director may file a petition for Appellant, his or her Representative and served by the requester upon Appellant reconsideration of a decision or order the Director receive all motions. The and the Director. No request for a issued by the Board within 30 days of Clerk will issue directions specifying second continuance will be entertained the date of issuance, unless another time the timing of any responses and replies. by the Board. In such case, the appeal period is specified in the Board’s order. The Board also may act on its own to will proceed to a decision based on the (b) Where to File. The petition must issue direction in pending appeals, case record. The Board may reschedule be filed with the Clerk. Copies will be stating the basis for its determination. or cancel oral argument on its own sent by the Clerk to the Director, the (e) Number of copies. All filings with motion at any time. Appellant and his or her Representative the Board, including any notice of (h) Nonappearance. The absence of an in the time period specified by the appeal, pleading, or motion shall Appellant, his or her Representative, or Board. include an original and two (2) legible the Director at the time and place set for (c) Content of petition. The petition copies. oral argument will not delay the Board’s must be in writing. The petition must resolution of an appeal. In such event, contain the docket number, specify the § 501.5 Oral argument. the Board may, in its discretion, matters claimed to have been (a) Oral argument. Oral argument may reschedule oral argument, or cancel oral erroneously decided, provide a be held in the discretion of the Board, argument and treat the case as statement of the facts upon which the on its own determination or on submitted on the case record. petitioner relies, and a discussion of application by Appellant or the applicable law. New evidence will not Director. § 501.6 Decisions and orders. be considered by the Board in a petition (b) Request. A request for oral (a) Decisions. A decision of the Board for reconsideration. argument must be submitted in writing will contain a written opinion setting (d) Panel. The panel of judges who to the Clerk. The application must forth the reasons for the action taken heard and decided the appeal will rule specify the issue(s) to be argued and and an appropriate order. The decision on the petition for reconsideration. If provide a statement supporting the need is based on the case record, all any member of the original panel is for oral argument. The request must be pleadings and any oral argument. The unavailable, the Chief Judge may made no later than 60 days after the decision may consist of an affirmance, designate a new panel member. The filing of an appeal. Any appeal in which reversal or remand for further decision or order of the Board will stand a request for oral argument is not development of the evidence, or other as final unless vacated or modified by granted by the Board will proceed to a appropriate action. the vote of at least two members of the decision based on the case record and (b) Panels. A decision of not less than reconsideration panel. any pleadings submitted. two judges will be the decision of the (e) Answer. Upon the filing of a (c) Notice of argument. If a request for Board. petition for reconsideration, Appellant oral argument is granted, the Clerk will (c) Issuance. The date of the Board’s or the Director may file an answer to the notify the Appellant and the Director at decision is the date of issuance or such petition within such time as fixed by the least 30 days before the date set for date as determined by the Board. Board. argument. The notice of oral argument Issuance is not determined by the (f) Oral argument and decision on will state the issues that the Board has postmark on any letter containing the reconsideration. An oral argument may determined will be heard. decision or the date of actual receipt by be allowed at the discretion of the Board (d) Time allowed. Appellant and any Appellant or the Director. upon application of the Appellant or Representative for the Director shall be (d) Finality. The decisions and orders Director or the Board may proceed to allowed no more than 30 minutes to of the Board are final as to the subject address the matter upon the papers

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filed. The Board shall grant or deny the continue to be recognized unless the approved except upon written petition for reconsideration and issue Representative withdraws or abandons application to the Clerk, supported by a such orders as it deems appropriate. such capacity or the Appellant directs statement of the extent and nature of the otherwise. necessary work performed before the § 501.8 Clerk of the Office of the Appellate (c) Change of address. Each Appellant Board on behalf of the Appellant. The Boards; docket of proceedings; records. and Representative authorized to appear fee application will be served by the (a) Location and business hours. The before the Board must give the Clerk Clerk on the Appellant and a time set in Office of the Clerk of the Appellate written notice of any change to the which a response may be filed. Except Boards is located at 200 Constitution address or telephone number of the where such fee is de minimis, the fee Avenue, NW., Washington, DC 20210. Appellant or Representative. Such request will be evaluated with The Office of the Clerk is open during notice must identify the docket number consideration of the following factors: business hours on all days except and name of each pending appeal for (1) Usefulness of the Representative’s Saturdays, Sundays and Federal that Appellant, or, in the case of a services; holidays, from 8:30 a.m. to 5 p.m. Representative, in which he or she is a (2) The nature and complexity of the (b) Docket. The Clerk will maintain a Representative before the Board. Absent appeal; docket containing a record of all such notice, the mailing of documents (3) The capacity in which the proceedings before the Board. Each to the address most recently provided to Representative has appeared; docketed appeal will be assigned a the Board will be fully effective. (4) The actual time spent in number in chronological order based (d) Debarment of Counsel or connection with the Board appeal; and upon the date on which the notice of Representative. In any proceeding, (5) Customary local charges for appeal is received. While the Board whenever the Board finds that a person similar services. generally hears appeals in the order acting as counsel or other docketed, the Board retains discretion to Representative for the Appellant or the [FR Doc. E8–24930 Filed 10–17–08; 8:45 am] change the order in which a particular Director, is guilty of unethical or BILLING CODE 4510–23–P appeal will be considered. The Clerk unprofessional conduct, the Board may will prepare a calendar of cases order that such person be excluded from submitted or awaiting oral argument further acting as counsel or DEPARTMENT OF STATE and such other records as may be Representative in such proceeding. required by the Board. Such order may be appealed to the 22 CFR Parts 7 and 50 Secretary of Labor or his or her (c) Publication of decisions. Final [Public Notice: 6398] decisions of the Board will be published designee, but proceedings before the in such form as to be readily available Board will not be delayed or suspended Board of Appellate Review; Review of for inspection by the general public. pending disposition of such appeal. Loss of Nationality However, the Board may suspend the § 501.9 Representation; Appearances and proceeding of an appeal for a reasonable AGENCY: State Department. Fee. time for the purpose of enabling ACTION: Final rule. (a) Representation. In any proceeding Appellant or the Director to obtain before the Board, an Appellant may different counsel or other SUMMARY: This rule eliminates the appear in person or by appointing a Representative. Whenever the Board has Department’s Board of Appellate duly authorized individual as his or her issued an order precluding a person Review (L/BAR), which had been Representative. from further acting as counsel or authorized to review certain Department (1) Counsel. The designated Representative in a proceeding, the determinations, in particular those Representative may be an attorney who Board will, within a reasonable time, related to loss of citizenship and has been admitted to practice and who submit to the Secretary of Labor or his passport denials. Because L/BAR’s is in good standing with any court of or her designee a report of the facts and jurisdiction has been superseded or competent jurisdiction. circumstances surrounding the issuance made obsolete, and in large part (2) Lay representative. A non-attorney of such order. The Board will replaced by review of loss of citizenship Representative may represent an recommend what action the Secretary of and passport matters by the Bureau of Appellant before the Board. He or she Labor should take in regard to the Consular Affairs, this rule eliminates L/ may be an accredited Representative of appearance of such person as counsel or BAR and authorizes on a discretionary an employee organization. Representative in other proceedings basis an alternative, less cumbersome (3) Former members of the Board and before the Board. Before any action is review of loss of nationality other employees of the Department of taken debarring a person as counsel or determinations by the Bureau of Labor. A former judge of the Board is Representative from other proceedings, Consular Affairs. not allowed to participate as counsel or he or she will be furnished notice and DATES: This rule is effective October 20, other Representative before the Board in the opportunity to be heard on the 2008. any proceeding until two years from the matter. FOR FURTHER INFORMATION CONTACT: termination of his or her status as a (e) Fees for attorney, Representative, judge of the Board. The practice of a or other services. No claim for a fee for Monica A. Gaw, Office of Policy Review former judge or other former employee legal or other service performed on and InterAgency Liaison, Overseas of the Department of Labor is governed appeal before the Board is valid unless Citizens Services, who may be reached by 29 CFR Part 0, Subpart B. approved by the Board. Under 18 U.S.C. at (202) 736–9110, e-mail (b) Appearance. No individual may 292, collecting a fee without the [email protected]. appear as a Representative in a approval of the Board may constitute a SUPPLEMENTARY INFORMATION: The proceeding before the Board without misdemeanor, subject to fine or Department published an interim final first filing with the Clerk a written imprisonment for up to a year or both. rule, Public Notice 6298 at 73 FR 41256 authorization signed by the Appellant to No contract for a stipulated fee or on a (July 18, 2008), with 60 days for post- be represented. When accepted by the contingent fee basis will be approved by promulgation comment, amending 22 Board, such Representative will the Board. No fee for service will be CFR by removing the regulations in Part

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7 that established the Board of Executive Order 12866 Dated: October 7, 2008. Appellate Review (L/BAR) and revising Janice L. Jacobs, The Department does not consider § 50.51 to provide for an alternative Assistant Secretary of State, Bureau of method of review of loss of nationality this rule to be a ‘‘significant regulatory Consular Affairs, Department of State. action’’ within the scope of section determinations on a discretionary basis. [FR Doc. E8–24472 Filed 10–17–08; 8:45 am] 3(f)(1) of Executive Order 12866. In The rule was discussed in detail in addition, the Department is exempt BILLING CODE 4710–06–P Public Notice 6298, as were the from Executive Order 12866 except to Department’s reasons for making the the extent that it is promulgating DEPARTMENT OF STATE changes to the regulations. There were regulations in conjunction with a no comments to the interim final rule domestic agency that are significant 22 CFR Part 40 published July 18, 2008. The regulatory actions. The Department has Department is now promulgating a final nevertheless reviewed the regulation to [Public Notice 6395] rule with no changes. ensure its consistency with the Regulatory Findings regulatory philosophy and principles set RIN 1400–AB68 forth in that Executive Order. Administrative Procedure Act Uncertified Foreign Health-Care Executive Order 12988—Civil Justice Workers The Department published this rule as Reform an interim final rule on July 18, 2008, AGENCY: Department of State. with 60 days for post-promulgation The Department has reviewed this ACTION: Final rule. comment, in accordance with the regulation in light of sections 3(a) and exemption contained in 5 U.S.C. 3(b)(2) of Executive Order No. 12988 to SUMMARY: This rule adopts as final 553(a)(2) for matters relating to agency eliminate ambiguity, minimize without change the Department’s management or personnel. litigation, establish clear legal interim rule published on December 17, standards, and reduce burden. 2002, at 67 FR 77158. The rule changes Regulatory Flexibility Act the requirements pertaining to the Executive Orders 12372 and 13132— issuance of visas to certain health care Since this action is exempt from the Federalism notice and comment procedures workers. Certain foreign health care contained in 5 U.S.C. 553, and no other This regulation will not have workers now need to present certificates statute mandates such procedures, no substantial direct effects on the States, establishing competency in a specific analysis under the Regulatory on the relationship between the national health care field. Certification is issued Flexibility Act (5 U.S.C. 601 et seq.) is government and the States, or on the by the Commission on Graduates of required. However, these changes to the distribution of power and Foreign Nursing Schools (CGFNS) or regulations are hereby certified as not responsibilities among the various other credentialing organizations that expected to have a significant impact on levels of government. Therefore, in have been approved by the Secretary of a substantial number of small entities accordance with section 6 of Executive Homeland Security (DHS) in under the criteria of the Regulatory Order 13132, it is determined that this consultation with the Secretary of Flexibility Act, 5 U.S.C. 601–612, and rule does not have significant federalism Health and Human Services (HHS). This Executive Order 13272, section 3(b). implications warranting the application rule facilitates greater uniformity of Executive Orders No. 12372 and No. between the regulations of DHS and the Unfunded Mandates Reform Act of 1995 13132. Department of State. DATES: This rule will not result in the National Environmental Policy Act Effective Date: Effective October expenditure by state, local, and tribal 20, 2008. governments, in the aggregate, or by the The Department has analyzed this FOR FURTHER INFORMATION CONTACT: private sector, of $100 million or more regulation for the purpose of the Penafrancia D. Salas, Legislation and (adjusted annually for inflation) in any National Environmental Policy Act of Regulations Division, Visa Services, year and it will not significantly or 1969 (42 U.S.C. 4321 through 4327) and Department of State, Washington, DC uniquely affect small governments. has determined that it will not have any 20520–0106. Phone: 202–663–1202. Therefore, no actions were deemed effect on the quality of the environment. E-mail: ([email protected]). necessary under the provisions of the The Paperwork Reduction Act of 1995 SUPPLEMENTARY INFORMATION: Unfunded Mandates Reform Act of 1995. This rule does not impose any new What Is The Background of This Rule? reporting or recordkeeping requirements Small Business Regulatory Enforcement An alien who seeks to enter the subject to the Paperwork Reduction Act Fairness Act of 1996 United States for the purpose of of 1995, 44 U.S.C. 3501, et seq. performing labor as a health care This rule is not a major rule as List of Subjects worker, other than as a physician, is defined by section 804 of the Small ineligible for visa issuance and is Business Regulatory Enforcement Act of 22 CFR Part 7 inadmissible to the United States unless 1996. This rule will not result in an the alien presents to the consular officer Board of Appellate Review. annual effect on the economy of $100 a certificate from the CGFNS or a million or more; a major increase in 22 CFR Part 50 certificate from an equivalent costs or prices; or significant adverse independent credentialing organization effects on competition, employment, Citizenship, Nationality, Loss of approved by DHS in consultation with investment, productivity, innovation, or Nationality. HHS that indicates the following: on the ability of United States-based ■ Accordingly, the interim rule (a) The alien’s education, training, companies to compete with foreign- amending 22 CFR parts 7 and 50 license, and experience: based companies in domestic and published at 73 FR 41256, July 18, 2008 1. Meet all applicable statutory and import markets. is adopted as final without change. regulatory requirements for admission

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into the United States under the that the statutory requirements imposed. Executive Order 12866: Regulatory specified visa; For example, several comments focused Review 2. Are comparable with those required on the shortage of nurses in the United for an American health care worker of States and the need for foreign nurses to The Department of State has reviewed the same type; make up the shortage. Other comments this rule to ensure its consistency with 3. Are authentic; and, focused on issues relating to the the regulatory philosophy and 4. In the case of a license is licensure of nurses. principles set forth in Executive Order unencumbered (not burdened or 12866 and has determined that the Regulatory Findings affected); benefits of the regulation justify its (b) The alien has the level of Administrative Procedure Act costs. The Department does not consider competence in oral and written English The Department’s implementation of the rule to be an economically considered by the Secretary of HHS, in the interim rule was based upon the significant action within the scope of consultation with the Secretary of ‘‘good cause’’ exception found at 5 section 3(f)(1) of the Executive Order Education, to be appropriate for the U.S.C. 553(b)(B). Section 553(b) of the since it is not likely to have an annual health care work in which the alien will APA authorizes agencies to dispense effect on the economy of $100 million be engaged. HHS’s finding is to be based with certain notice procedures for rules or more or to adversely affect in a on an established score on one or more when they are ‘‘impracticable, material way the economy, a sector of nationally recognized, commercially unnecessary, or contrary to public the economy, competition, jobs, the available, standardized assessments; interest.’’ Nevertheless, the Department environment, public health or safety, or and, State, local or tribal governments or (c) If a majority of states licensing the solicited public comments. This rule profession in which the alien intends to makes final an amendment to the communities. work recognize a test predicting an regulation that implemented a legislative mandate that codified current Executive Orders 12372 and 13132: applicant’s success on the profession’s Federalism licensing or certification examination, practices. the alien has passed such a test, or has Regulatory Flexibility Act/Executive This regulation will not have passed the certification examination. Order 13272: Small Business substantial direct effects on the States, The Immigration and Nationality Act on the relationship between the national The Department of State, pursuant to section 212(r) created an alternative government and the States, or the the Regulatory Flexibility Act (5 U.S.C. certification process for certain aliens 605(b), has assessed this regulation and, distribution of power and seeking to enter the United States to by approving it, certifies that this rule responsibilities among the various perform nursing services. In general, will not have a significant economic levels of government. Nor will the rule such procedures apply to those aliens impact on a substantial number of small have federalism implications warranting who already possess a valid, entities. the application of Executive Orders No. unrestricted, authentic and 12372 and No. 13132. unencumbered license as a nurse in a The Unfunded Mandates Reform Act of state where the alien intends to be 1995 Executive Order 12988: Civil Justice Reform employed and who received their Section 202 of the Unfunded nursing training in a country where the Mandates Reform Act of 1995 (UFMA), quality of education and the English The Department has reviewed the Public Law 104–4, 109 Stat. 48, 2 U.S.C. proposed regulations in light of sections proficiency of nursing graduates have 1532, generally requires agencies to been recognized by the CGFNS as 3(a) and 3(b)(2) of Executive Order No. prepare a statement before proposing 12988 to eliminate ambiguity, minimize meeting its standards. any rule that may result in an annual On July 25, 2003, the Department of litigation, establish clear legal expenditure of $100 million or more by Homeland Security published in the standards, and reduce burden. State, local, or tribal governments, or by Federal Register at 68 FR 43901 its final the private sector. This rule will not Paperwork Reduction Act rule establishing at 8 CFR 212.15 the result in any such expenditure, nor will regulations governing the certification it significantly or uniquely affect small This rule does not impose any new process for aliens seeking to enter to governments. reporting or recordkeeping requirements provide labor as health care providers. subject to the Paperwork Reduction Act, Aliens in covered health care The Small Business Regulatory 44 U.S.C. Chapter 35. occupations (with the exception of Enforcement Fairness Act of 1996 List of Subjects in 22 CFR Part 40 aliens who, under 8 CFR 212.15(b) are This rule is not a major rule as not subject to the certification defined by 5 U.S.C. 804, for purposes of requirement of 212(a)(5)(C) and 212(r) of Aliens, Nonimmigrants, Immigrants, congressional review of agency Documentation, Passports and Visas. the INA (8 U.S.C. 1182(a)(5)(C) and 8 rulemaking under the Small Business U.S.C. 1182(r) respectively, and the Regulatory Enforcement Fairness Act of ■ Accordingly, the interim rule Department of Homeland Security 1996, Public Law 104–121. This rule amending 22 CFR part 40 published at Regulations at 8 CFR 212.15) specified will not result in an annual effect on the 67 FR 77158, December 17, 2002 is at 8 CFR 212.15(c)) are inadmissible. economy of $100 million or more; a adopted as final without change. Comments major increase in costs or prices; or Dated: October 6, 2008. significant adverse effects on Janice L. Jacobs, Were Comments Solicited on This Rule? competition, employment, investment, Yes, comments were solicited. productivity, innovation, or on the Assistant Secretary for Consular Affairs Although the Department received four ability of United States-based Department of State. comments in response to this rule, the companies to compete with foreign- [FR Doc. E8–24474 Filed 10–17–08; 8:45 am] comments raised issues regarding the based companies in domestic and BILLING CODE 4710–06–P hardship on the individual commenters import markets.

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DEPARTMENT OF THE TREASURY that is not deductible and not properly allowed the taxpayer in Brooks to defer chargeable to capital account, and indefinitely the recognition of income Internal Revenue Service certain deductions for depletion for any on any repayment of his open account oil and gas property held by the S debt over the several years during which 26 CFR Part 1 corporation. Under section the taxpayer and the S corporation made [TD 9428] 1367(b)(2)(A), if for any taxable year the advances and repayments, respectively. amounts specified in section 1367(a)(2) On April 12, 2007, the Treasury RIN 1545–BD72 (other than distributions) exceed the Department and the IRS published a amount which reduces the shareholder’s notice of proposed rulemaking and a Section 1367 Regarding Open Account basis to zero, such excess losses and notice of public hearing (REG–144859– Debt deductions shall be applied to reduce 04, 2007–20 IRB 1245) in the Federal AGENCY: Internal Revenue Service (IRS), (but not below zero) the shareholder’s Register (72 FR 18417) proposing Treasury. basis in any indebtedness of the S amendments to the regulations relating corporation to the shareholder. Section ACTION: Final regulations. to the treatment of open account debt 1367(b)(2)(B) provides that if a between S corporations and their SUMMARY: This document contains final shareholder’s basis in indebtedness is shareholders. A public hearing on the regulations relating to the treatment of reduced for any taxable year, any net proposed regulations was scheduled for open account debt between S increase (the amount by which the items July 31, 2007, but was cancelled because corporations and their shareholders. described in section 1367(a)(1) exceed no one requested to speak. However, These final regulations provide rules the items described in section comments responding to the proposed regarding the definition of open account 1367(a)(2)) for any subsequent taxable regulations were received. After debt and the adjustments in basis of any year is applied to restore the reduction consideration of these comments, the indebtedness of an S corporation to a in basis in indebtedness before any of proposed regulations are adopted as shareholder under section 1367(b)(2) of the excess is used to increase basis in revised by this Treasury decision. These the Internal Revenue Code (Code) for stock. final regulations generally retain the shareholder advances and repayments On January 3, 1994, the Treasury provisions of the proposed regulations on advances of open account debt. The Department and the IRS published final with the modifications discussed in the regulations affect shareholders of S regulations under section 1367 of the preamble. corporations and are necessary to Code (TD 8508, 59 FR 12, amended on December 22, 1999 (TD 8852, 64 FR Summary of Comments and provide guidance needed to comply Explanation of Revisions with the applicable tax law. 71641)). Those final regulations relate, in part, to adjustments to basis in both DATES: 1. Need for Regulatory Change stock of shareholders and indebtedness Effective Date: These regulations are of an S corporation to its shareholders. All of the comments received in effective on October 20, 2008. Section 1.1367–2 of the Income Tax response to the proposed regulations Applicability Date: For dates of Regulations provides specific rules for suggested that the regulations were applicability, see § 1.1367–3. required adjustments (reductions and overly broad and should be withdrawn. FOR FURTHER INFORMATION CONTACT: restorations) to basis in any Two commentators suggested that Stacy L. Short or Deane M. Burke, (202) indebtedness of an S corporation to a amending the regulations for open 622–3070 (not a toll-free number). shareholder. Section 1.1367–2(a) also account debt is not an appropriate SUPPLEMENTARY INFORMATION: provides that for purposes of approach for the Treasury Department and the IRS to address concerns Background adjustments to basis of indebtedness to shareholders, shareholder advances not regarding transactions similar to that in This document amends § 1.1367–2 of evidenced by separate written Brooks. Instead, the commentators the Income Tax Regulations (26 CFR instruments and repayments on the asserted, such concerns should be part 1) regarding the definition of open advances (open account debt) are addressed through established judicial account debt and adjustments in basis of treated as a single indebtedness. The doctrines such as substance over form, indebtedness for shareholder advances basis adjustment rules under the final business purpose, sham transaction, and and repayments on advances of open regulations apply to all indebtedness of economic substance. One commentator account debt. an S corporation to a shareholder, alternatively recommended a narrowly Section 1367(a)(1) provides that the whether the indebtedness is evidenced tailored anti-abuse rule targeting open basis of each shareholder’s stock in an by a written instrument or is open account debt instead of broader rules S corporation is increased by the account debt. Taxpayers should also that would apply to all such debt. shareholder’s pro rata share of the S remember that all advances to an S The Treasury Department and the IRS corporation’s income (separately and corporation by a shareholder are subject continue to believe that regulatory nonseparately computed items of to the general tax principles for debt, guidance on open account debt is income) and the excess of the whether evidenced by a written necessary. The Treasury Department deductions for depletion over the basis instrument or not. and the IRS believe that the treatment of of the property subject to depletion. On August 25, 2005, the Tax Court open account debt as interpreted in Section 1367(a)(2) provides that the issued its decision in Brooks v. Brooks permits tax consequences that basis of each shareholder’s stock in the Commissioner, TC Memo. 2005–204, are inconsistent with the original S corporation is decreased by the involving open account debt. Under its purpose of § 1.1367–2 and is not shareholder’s distributions not interpretation of § 1.1367–2, the court in conducive to sound tax administration. includible in income of the shareholder Brooks held ‘‘that the basis of the open Neither established judicial doctrines by reason of section 1368 (nontaxable account indebtedness is properly alone nor a narrowly tailored anti-abuse distributions), and the shareholder’s pro computed by netting at the close of the rule suggested by the commentators rata share of the losses and deductions year advances of open account debt would adequately address these (separately and nonseparately computed during the year and repayments of open concerns, though the Treasury losses), any expense of the corporation account debt during the year.’’ This Department and the IRS continue to

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recognize the applicability of the shareholders could receive up to reconciling and accounting only once a judicial doctrines in appropriate cases $250,000 of open account debt as long year and noted that only then would in addition to these final regulations. as no single shareholder advanced more such an S corporation and its than $25,000. The Treasury Department shareholder(s) know what payments are 2. Aggregate Principal Threshold and the IRS believe that the $25,000 legitimately charged to the corporation Amount threshold, together with certain other as opposed to those appropriately The proposed regulations defined changes noted below, balances concerns charged to the shareholder(s). open account debt as shareholder over deferral potential with normal Another commentator suggested that advances not evidenced by separate business practices. Under the final with daily monitoring, a maximum written instruments for which the regulations, for any particular threshold rule for open account debt is principal amount of the aggregate shareholder advances and repayments too harsh for shareholders insofar as it advances (net of repayments on on those advances for which, as of the immediately changes the treatment of advances) did not exceed $10,000 per specified determination date, the such debt the principal balance of shareholder at the close of any day aggregate principal balance exceeds the which exceeds the threshold by a single during the S corporation’s taxable year. $25,000 aggregate principal threshold cent on any day, resulting in a ‘‘cliff’’ Shareholders were required to amount will no longer constitute open effect. The commentator suggested that determine for open account debt account debt, but instead will be treated in order to mitigate this ‘‘cliff’’ effect, purposes whether shareholder advances as debt evidenced by a separate written the final regulations should adopt a and repayments on the advances instrument subject to the basis second prong to the aggregate principal exceeded the $10,000 aggregate adjustment and repayment accounting threshold amount test so that advances principal threshold on any day during rules applicable to S corporation would fail to meet the definition of open the S corporation’s taxable year. To shareholder debt generally. account debt only if both the aggregate make such a determination, As noted in the preamble to the principal of the running balance shareholders were required to maintain proposed regulations, the $10,000 exceeded the applicable aggregate a ‘‘running balance’’ of shareholder aggregate principal threshold amount principal threshold dollar amount on advances and repayments on advances, for open account debt for purposes of any given day of the year and the and the outstanding principal amount of § 1.1367–2 was modeled after section balance at the end of the year exceeded the open account debt. If the resulting 7872(c)(3) and the de minimis exception the average of the daily balances aggregate principal of the running for corporation-shareholder loans in throughout the year. The commentator balance exceeded $10,000 at the close of § 1.7872–9 of the proposed regulations. provided examples of intended any day during the S corporation’s However, the Treasury Department and beneficiaries of such an ‘‘averaging’’ taxable year, the entire principal the IRS do not believe it is necessary rule, for example, shareholders who amount of the indebtedness would no that the threshold amount for open need to advance their S corporation longer constitute open account debt account debt be modeled after the rules more funds on a short-time basis but effective at the close of that day. under § 1.7872–9 regarding corporate- end the year with an outstanding Commentators suggested that the shareholder loans. Nevertheless, despite principal amount of the open account proposed regulations’ aggregate the $25,000 threshold amount for open debt below the threshold level. principal threshold of $10,000 was too account debt in these final regulations, After careful consideration of these low for most businesses. One the provisions under section 7872 and comments, the Treasury Department commentator asserted that establishing related regulations for corporate- and the IRS have concluded that any aggregate principal threshold dollar shareholder loans in excess of $10,000 extending the period for which a amount for open account debt in final separately apply to open account debt in shareholder determines whether regulations would be arbitrary and excess of $10,000 for each advance if the shareholder advances and repayments would impose a certain compliance corporation is not obligated to pay a exceed the aggregate principal threshold burden on smaller businesses. However, market rate of interest on the advances. dollar amount for open account debt that commentator also suggested that would reduce both the complexity of increasing the aggregate principal 3. Monitoring the Aggregate Principal the regulations and any perceived threshold dollar amount would mitigate Threshold Amount burden on shareholders in making such the compliance burden. The The proposed regulations effectively determinations. In addition, such a commentators suggested that if the final required day-to-day monitoring of open modified rule should alleviate concerns regulations adopt any threshold dollar account debt. For purposes of over any potential ‘‘cliff’’ effect resulting amount for open account debt, such a determining compliance with the from a day-to-day determination of threshold amount should be increased aggregate principal threshold amount threshold amount as required in the to an amount ranging from $100,000 to for open account debt, the shareholder proposed regulations. The Treasury $1 million. was required to maintain a daily Department and the IRS also recognize After considering the comments on running balance of shareholder that shareholder advances made to an S the aggregate principal threshold dollar advances and repayments on such corporation and subsequently repaid amount, and on recognizing customary advances, and the outstanding principal during the same taxable year of the S business practices as noted by the amount of the open account debt. Some corporation are not available for commentators, the Treasury Department of the commentators suggested that the inclusion in the shareholder’s basis in and the IRS have concluded that the daily monitoring requirement would the indebtedness for purposes of passing aggregate principal threshold dollar impose an unreasonable burden on through additional losses to the amount for open account debt should be shareholders and recommended that the shareholder at the end of the taxable increased and that other changes are running balance requirement be tested year. necessary. Therefore, the final quarterly, annually or when the Therefore, the final regulations do not regulations adopt a $25,000 aggregate corporation maintains and updates its adopt a daily determination of whether principal threshold amount per other books and records. One shareholder advances and repayments shareholder for open account debt. For commentator described the practice by on the advances exceed the $25,000 example, an S corporation with ten many closely held corporations of threshold amount. Instead, the final

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regulations provide that a determination account debt created before the effective of the then existing open account debt). of whether the threshold balance of date, that is, shareholder advances with This $13,000 pre-effective date open $25,000 is exceeded will be made at the respect to pre-effective date open account debt would not be subject to end of the taxable year of the S account debt and repayments on those these final regulations and, thus, would corporation. Under these final prior advances. Accordingly, a not be subject to any aggregate principal regulations, however, if open account shareholder could have open account threshold dollar amount and would be debt is disposed of in whole or in part debt, subject to the Old Rules, and open repaid under the rules of the prior final before the end of the S corporation’s account debt, subject to the New Rules, regulations. If, on or after the effective taxable year, the determination of to which new shareholder advances and date of these final regulations, A were whether the advances and repayments repayments on those advances could be to both make an advance of $5,000 to have exceeded the designated aggregate made after the effective date. his S corporation and receive a $1,000 principal threshold amount must be Under the second interpretation, a repayment on that advance, the advance made immediately before the shareholder could not make additional and repayment would constitute disposition of the debt during that advances with respect to open account separate new open account debt subject taxable year. Moreover, if a shareholder debt created before the effective date but to the rules under these final with open account debt is no longer a could receive repayments on that debt regulations. shareholder at the end of the S under the Old Rules. Accordingly, the Shareholders also have the option to corporation’s taxable year, the New Rules would apply to all apply these rules to shareholder determination must be made shareholder advances on and after the advances to the S corporation and immediately before the shareholder’s effective date, as well as repayments on repayments on those advances by the S interest in the S corporation is those advances, and the Old Rules corporation made before the effective terminated. would apply only to repayments on pre- effective date open account debt. date of these regulations. Using the 4. Character of Income/Gain The Treasury Department and the IRS example above, A would have the Recognition intend that the rules under these final option to net the $5,000 advance and One of the commentators suggested regulations (New Rules) apply to any $1,000 repayment. that the final regulations address the and all shareholder advances made on Effective/Applicability Date issue of how to characterize any income and after the effective date. The rules or gain that is recognized upon under these final regulations (New The regulations apply to any and all repayment of both open account debt Rules) also apply to repayments on such shareholder advances to the S and indebtedness evidenced by a advances. However, if a shareholder has corporation made on or after October 20, written instrument. While recognizing open account debt (net of prior 2008, and repayments on those the commentators’ concerns, the repayments in the taxable year) advances by the S corporation. Treasury Department and the IRS outstanding prior to the effective date of Special Analyses believe that the characterization issue is these final regulations, the rules under beyond the scope of these final the prior final regulations (Old Rules) It has been determined that this regulations. However, the Treasury apply to any repayments on such pre- Treasury decision is not a significant Department and the IRS intend to effective date open account debt. regulatory action as defined in continue considering the Accordingly, that pre-effective date Executive Order 12866. Therefore, a characterization issue. open account debt will not be subject to regulatory assessment is not required. It any aggregate principal threshold dollar 5. Effective Date Operation also has been determined that section amount. The shareholder may not make 553(b) of the Administrative Procedure The effective date in the proposed additional advances with respect to the Act (5 U.S.C. chapter 5) does not apply regulations provided that the proposed pre-effective date open account debt to these regulations. Because these rules for open account debt applied to (because all shareholder advances made regulations do not impose a collection any shareholder advances to the S on or after the effective date of these of information on small entities, the corporation made on or after the date final regulations constitute new open Regulatory Flexibility Act (5 U.S.C. the regulations were published as final account debt subject to these final chapter 6) does not apply. Pursuant to regulations and repayments on those regulations). section 7805(f) of the Code, the notice advances by the S corporation. Thus, all For instance, assume that the effective of proposed rulemaking that preceded open account debt (net of repayments) date of these final regulations falls these regulations was submitted to the prior to the publication of the final within the taxable year of shareholder Chief Counsel for Advocacy of the Small regulation was outside the scope of the A’s S corporation. Also assume that, at Business Administration for comment proposed regulations, irrespective of the the beginning of the S corporation’s on its impact on small business. outstanding principal amount. taxable year, A will have existing open One of the commentators believed account debt with an outstanding Drafting Information that the effective date language in the principal balance of $12,000. Assume proposed regulations was subject to two further that A will make an additional The principal authors of these final interpretations. Under the first advance of $3,000 to and will receive a regulations are Stacy L. Short and Deane interpretation, the rules under these $2,000 repayment from his S M. Burke of the Office of the Associate final regulations (New Rules) would corporation prior to the effective date. Chief Counsel (Passthroughs and apply only to open account debt created Thus, as of the effective date, A will Special Industries). However, other on or after the effective date, that is, have existing open account debt with an personnel from the IRS and the Treasury shareholder advances made on or after outstanding principal balance of Department participated in their the effective date and repayments on $13,000 (A would net the pre-effective development. those same advances. The rules under date advance and repayment for the List of Subjects in 26 CFR Part 1 the prior final regulations (as contained taxable year and combine that net in the 26 CFR edition revised April 1, advance of $1,000 with the $12,000 Income taxes, Reporting and 2007) (Old Rules) would apply to open outstanding aggregate principal balance recordkeeping requirements.

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Adoption of Amendments to the indebtedness is not open account debt indebtedness is disposed of or repaid (in Regulations and is subject to all basis adjustment whole or in part). rules applicable to basis of indebtedness (2) Open account debt—(i) In general. ■ Accordingly, 26 CFR part 1 is of an S corporation to a shareholder in All advances and repayments on open amended as follows: this section. account debt (as described in paragraph (a)(2)(i) of this section) during the S PART 1—INCOME TAXES * * * * * corporation’s taxable year are netted at (c) * * * ■ Paragraph 1. The authority citation the close of the S corporation’s taxable for part 1 continues to read in part as (2) Multiple indebtedness. If a year to determine the amount of any net follows: shareholder holds more than one advance or net repayment. The net indebtedness (including any open advance or net repayment is combined Authority: 26 U.S.C. 7805 * * * account debt and any debt treated as a Section 1.1367–2 also issued under 26 with the outstanding aggregate principal U.S.C. 1367(b)(2). * * * single indebtedness under paragraph balance of the existing open account (a)(2)(ii) of this section) as of the debt and that amount is carried forward ■ Par. 2. Section 1.1367–2 is amended beginning of an S corporation’s taxable to the beginning of the subsequent as follows: year, any net increase is applied first to taxable year as the outstanding aggregate ■ 1. Paragraph (a) is revised. paragraph restore the reduction of basis in any principal amount of the open account (a)(2) is added. indebtedness repaid (in whole or in debt (unless the aggregate principal ■ 2. Paragraphs (c)(2) and (d)(1) are part) in that taxable year to the extent amount meets the exception defined in revised. necessary to offset any gain that would paragraph (a)(2)(ii) of this section at the ■ 3. Paragraph (d)(2) is redesignated as otherwise be realized on the repayment. close of the taxable year). However, if paragraph (d)(3) and new paragraph Any remaining net increase is applied to the shareholder in the S corporation is (d)(2) is added. restore each outstanding indebtedness not a shareholder of the S corporation ■ 4. Paragraph (e) is amended by adding (including any open account debt and at the close of the S corporation’s Examples 6, 7 and 8. any debt treated as a single taxable year, such advances and The revisions and additions read as indebtedness under paragraph (a)(2)(ii) repayments on open account debt are follows: of this section) in proportion to the netted, and the basis of that § 1.1367–2 Adjustments to basis of amount that the basis of each indebtedness is restored under indebtedness to shareholder. outstanding indebtedness has been paragraph (c) of this section, effective reduced under section 1367(b)(2)(A) and (a) In general—(1) Adjustments under immediately before the shareholder paragraph (b) of this section and not section 1367. This section provides terminates his or her interest in the S restored under section 1367(b)(2)(B) and rules relating to adjustments required by corporation. If any open account debt is this paragraph (c). subchapter S to the basis of disposed of before or upon the close of indebtedness (including open account (d) Time at which adjustments to the taxable year, the disposition is debt as described in paragraph (a)(2) of basis of indebtedness are effective— effective at the close of the S this section) of an S corporation to a (1) In general. The amounts of the corporation’s taxable year, and all shareholder. The basis of indebtedness adjustments to basis of indebtedness advances and repayments are netted of the S corporation to a shareholder is (including open account debt) provided immediately prior to the disposition and reduced as provided in paragraph (b) of in section 1367(b)(2) and this section are the basis of that indebtedness is restored this section and restored as provided in determined as of the close of the S under paragraph (c) of this section, paragraph (c) of this section in corporation’s taxable year, and the effective at the close of the S accordance with the timing rules in adjustments are generally effective as of corporation’s taxable year. paragraph (d) of this section. the close of the S corporation’s taxable (ii) Exception. Shareholder (2) Open Account Debt—(i) General year. However, if the shareholder is not indebtedness that is open account debt rule. The term open account debt means a shareholder in the S corporation at at the beginning of the taxable year but shareholder advances not evidenced by that time, these adjustments are meets the exception defined in separate written instruments and effective immediately before the paragraph (a)(2)(ii) of this section at the repayments on the advances, the shareholder terminates his or her close of the taxable year, adjustments to aggregate outstanding principal of interest in the S corporation. Except as the basis of the indebtedness for that which does not exceed $25,000 of provided in paragraph (d)(2) of this taxable year follow the provisions for indebtedness of the S corporation to the section, if a debt is disposed of or repaid open account debt. The resulting shareholder at the close of the S in whole or in part before the close of aggregate principal amount of corporation’s taxable year. Advances the taxable year, the basis of that indebtedness is treated as the principal and repayments on open account debt indebtedness is restored under amount of a debt evidenced by a are treated as a single indebtedness. paragraph (c) of this section, effective separate written instrument for any (ii) Exception. If the shareholder immediately before the disposition or subsequent taxable year, and is no advances not evidenced by a separate the first repayment on the debt during longer subject to the open account debt written instrument, net of repayments, the taxable year. To the extent any provisions of this section. exceeds an aggregate outstanding indebtedness of the S corporation to the * * * * * principal amount of $25,000 at the close shareholder is disposed of or repaid (in (e) * * * of the S corporation’s taxable year, for whole or in part) during the taxable year Example 6. The $25,000 Aggregate any subsequent taxable year the and the shareholder’s basis in that Principal Amount Applies to Each aggregate principal amount of that indebtedness has been reduced under Shareholder. (i) A and B have been the two indebtedness is treated in the same paragraph (b) of this section and is not shareholders in Corporation S since 2000. As of the end of the 2008 taxable year, the bases manner as indebtedness evidenced by a restored completely under paragraph (c) of A’s and B’s stock are both zero. On June separate written instrument for of this section, the disposition or 1, 2009, A advances S $16,000, which is not purposes of this section. For any repayment is a recognition event evidenced by a written instrument. On subsequent taxable year, that effective immediately before the August 1, 2009, B advances S $22,000, which

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is not evidenced by a written instrument. § 1.1367–3 Effective/Applicability date. DATES: This correction is effective Both the $16,000 advance and the $22,000 Section 1.1367–2(a), (c)(2), (d)(2), and October 20, 2008, and is applicable on advance are open account debt and remain (e) Example 6, Example 7, and Example September 17, 2008. outstanding at those amounts during 2009. 8 apply to any shareholder advances to There is no net increase under paragraph (c) FOR FURTHER INFORMATION CONTACT: of this section in year 2009. the S corporation made on or after Marcie P. Barese, (202) 622–7790, Sean (ii) At the close of the 2009 taxable year, October 20, 2008 and repayments on P. Duffley, (202) 622–7770, or Theresa A’s open account debt does not exceed those advances by the S corporation. Abell (202) 622–7700 (none of the $25,000. A therefore carries forward to the The rules that apply with respect to numbers are toll-free). beginning of the 2010 taxable year the shareholder advances to the S SUPPLEMENTARY INFORMATION: $16,000 as open account debt. corporation made before October 20, (iii) At the close of the 2009 taxable year, 2008, are contained in § 1.1367–3 in Background B’s open account debt does not exceed effect prior to October 20, 2008. (See 26 The final regulations that are the $25,000. B therefore carries forward to the CFR part 1 revised as of April 1, 2007.) subject of this document are under beginning of the 2010 taxable year the $22,000 as open account debt. Shareholders have the option to apply sections 337, 358, 362, 1502 of the Example 7. Treatment of open account these rules to shareholder advances to Internal Revenue Code. the S corporation made before October debt. (i) The facts are the same as in Example Need for Correction 6, in addition to which, on December 31, 20, 2008, and repayments on those 2009, A’s basis in the open account debt is advances by the S corporation. As published, final regulations (TD reduced under paragraph (b) of this section 9424) contain errors that may prove to Approved: September 25, 2008. to $8,000. On April 1, 2010, S repays A be misleading and are in need of $4,000 of the open account indebtedness. On Linda E. Stuff, clarification. September 1, 2010, A advances S an Deputy Commissioner for Services and additional $1,000, which is not evidenced by Enforcement. Correction of Publication a written instrument. There is no net increase Eric Solomon, Accordingly, the publication of the under paragraph (c) of this section in year Assistant Secretary of the Treasury (Tax final regulations (TD 9424), which were 2010. Policy). (ii) The $4,000 April repayment S makes to the subject of FR Doc. E8–21006, is [FR Doc. E8–24926 Filed 10–17–08; 8:45 am] A and A’s $1,000 September advance are corrected as follows: netted to result in a net repayment of $3,000 BILLING CODE 4830–01–P 1. On page 53937, column 3, in the for the taxable year on A’s $16,000 open preamble, under the paragraph heading account debt carried forward from 2009. ‘‘vii. Adjustments for Section 362(e)(2) Because there is no net increase in 2010, no DEPARTMENT OF THE TREASURY Transactions’’, first paragraph, line 9, basis of indebtedness is restored for the 2010 the language ‘‘not elect to apply the rule taxable year, and A realizes $1,500 of income Internal Revenue Service in the final’’ is corrected to read ‘‘not on the $3,000 net repayment at the close of apply the rule in the final’’. the 2010 taxable year. 26 CFR Part 1 2. On page 53938, column 3, in the (iii) At close of the 2010 taxable year, A’s preamble, under the paragraph heading open account debt does not exceed $25,000. [TD 9424] ‘‘B. Section 1.1502–36(b): Basis The net repayment of $3,000 for the taxable RIN 1545–BB61 year on A’s $16,000 open account debt Redetermination Rule’’, first paragraph carried forward from 2009, leaves A with an Unified Rule for Loss on Subsidiary of the column, line 1, the language open account debt of $13,000 to carry Stock; Correction ‘‘have no correlation to unrecognized forward as open account debt to the loss’’ is corrected to read ‘‘have no beginning of the 2011 taxable year. AGENCY: Internal Revenue Service (IRS), correlation to unrecognized gain or Example 8. Treatment of shareholder Treasury. loss’’. indebtedness not evidenced by a written ACTION: Final regulations; Correction. 3. On page 53938, column 3, in the instrument which exceeds $25,000. (i) The preamble, under the paragraph heading facts are the same as in Example 7, in SUMMARY: This document contains ‘‘B. Section 1.1502–36(b): Basis addition to which, on February 1, 2011, S corrections to final regulations (TD Redetermination Rule’’, first paragraph repays $5,000 of the open account debt and 9424) that were published in the on March 1, 2011, A advances S $20,000, of the column, line 17, the language which is not evidenced by a written Federal Register on Wednesday, ‘‘contributions of assets in exchanged instrument. September 17, 2008 (73 FR 53934) for’’ is corrected to read ‘‘contributions (ii) At the close of the 2010 taxable year, under sections 358, 362(e)(2), and 1502 of assets in exchange for’’. A has an open account debt of $13,000 to of the Internal Revenue Code. The final 4. On page 53938, column 3, in the carry forward as open account debt to the regulations apply to corporations filing preamble, under the paragraph heading beginning of the 2011 taxable year. consolidated returns, and corporations ‘‘i. Exceptions to Basis Redetermination (iii) The 2011 advances and repayments are that enter into certain tax-free Rule’’, last paragraph of the column, netted to result in a net advance of $15,000 reorganizations. The final regulations line 7, the language ‘‘to a nonmember in on A’s $13,000 open account debt carried provide rules for determining the tax forward from 2010, increasing A’s open a one or more fully’’ is corrected to read account debt to $28,000 as of the close of the consequences of a member’s transfer ‘‘to a nonmember in one or more fully’’. 2011 taxable year. Because A’s open account (including by deconsolidation and 5. On page 53939, column 3, in the debt exceeds $25,000, for any subsequent worthlessness) of loss shares of preamble, under the paragraph heading taxable year the $28,000 indebtedness will be subsidiary stock. In addition, the final ‘‘i. Treatment of Intercompany Debt’’, treated in the same manner as indebtedness regulations provide that section first paragraph, line 7, the language evidenced by a separate written instrument 362(e)(2) generally does not apply to ‘‘more like to capital transactions than’’ for the purposes of this section. Because transactions between members of a is corrected to read ‘‘more like capital there is no net increase in 2011, no basis of consolidated group. Finally, the final transactions than’’. indebtedness is restored for the 2011 taxable regulations conform or clarify various 6. On page 53940, column 3, in the year. provisions of the consolidated return preamble, under the paragraph heading ■ Par. 3. Section 1.1367–3 is revised to regulations, including those relating to ‘‘i. Lower-Tier Subsidiary Rules’’, read as follows: adjustments to subsidiary stock basis. second paragraph, line 7, the language

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‘‘reason for this concern was that loss’’ consolidated group. Finally, the final ■ Par. 4. Section 1.1502–19(h)(1) is is corrected to read ‘‘reasons for this regulations conform or clarify various amended by revising the second concern were that loss’’. provisions of the consolidated return sentence to read as follows: 7. On page 53943, column 1, in the regulations, including those relating to preamble, under the paragraph heading adjustments to subsidiary stock basis. § 1.1502–19 Excess loss accounts. * * * * * ‘‘vi. Election to Reduce Stock Basis and/ DATES: Effective Date: This correction is or Reattribute Attributes’’, first (h) * * * effective October 20, 2008 and is (1) * * * However, taxpayers may paragraph of the column, line 19, the applicable on September 17, 2008. language ‘‘to be attributed. Similar to apply paragraph (c)(3)(i)(A) of this FOR FURTHER INFORMATION CONTACT: the rule’’ is corrected to read ‘‘to be section to transactions that occurred Marcie P. Barese, (202) 622–7790, Sean attributed. As in the rule’’. prior to September 17, 2008. * * * 8. On page 53943, column 2, in the P. Duffley, (202) 622–7770, or Theresa * * * * * preamble, under the paragraph heading Abell (202) 622–7700 (none of the ■ Par. 5. Section 1.1502–33(j)(1) is ‘‘vii. The Conforming Limitation’’, last numbers are toll-free). amended by revising the last sentence to paragraph of the column, line 5, the SUPPLEMENTARY INFORMATION: read as follows: language ‘‘rule would then either reduce Background lower-tier’’ is corrected to read ‘‘rule § 1.1502–33 Earnings and profits. could then either reduce lower-tier’’. The final regulations that are the * * * * * 9. On page 53946, column 3, in the subjects of this document are under (j) * * * preamble, under the paragraph heading sections 337, 358, 362, 1502 of the (1) * * * However, taxpayers may ‘‘B. Amendments to § 1.1502–33(e) Internal Revenue Code. apply paragraph (e)(2)(i)(A) of this section with respect to determinations ‘‘Whole-Group’’ Exception’’, first Need for Correction paragraph of the column, line 7, the of the earnings and profits of a member language ‘‘elect to apply each of these As published, final regulations (TD in consolidated return years beginning modified’’ is corrected to read ‘‘apply 9424) contain errors that may prove to prior to September 17, 2008. each of these modified’’. be misleading and are in need of * * * * * clarification. ■ Par. 6. Section 1.1502–36 is amended LaNita Van Dyke, List of Subjects in 26 CFR Part 1 by revising the last sentence of the Chief, Publications and Regulations Branch, paragraph (b)(3) Example 3.(i)(D); the Legal Processing Division, Associate Chief Income taxes, Reporting and Counsel, (Procedure and Administration). fourth sentence of the paragraph (c)(8) recordkeeping requirements. Example 6.(iii)(A); (d)(3)(i)(B); the third [FR Doc. E8–24672 Filed 10–17–08; 8:45 am] Correction of Publication through fifth sentences of the paragraph BILLING CODE 4830–01–P (d)(5)(ii); the third sentence of the ■ Accordingly, 26 CFR part 1 is paragraph (d)(8) Example 6.(ii)(B); the corrected by making the following DEPARTMENT OF THE TREASURY second sentence of the paragraph (d)(8) correcting amendments: Example 6.(ii)(D)(3); the fifth sentence Internal Revenue Service of the paragraph (d)(8) Example 8.(i)(F); PART 1—INCOME TAXES the first sentence of the paragraph (d)(8) 26 CFR Part 1 ■ Paragraph 1. The authority citation Example 8.(ii)(E); the first sentence of the paragraph (d)(8) Example 8.(ii)(F); [TD 9424] for part 1 continues to read, in part, as follows: the first sentence of the paragraph (d)(8) RIN 1545–BB61 Example 9.(ii);the second sentence of Authority: 26 U.S.C. 7805 * * * the paragraph (g)(2) Example 5.(i); and Unified Rule for Loss on Subsidiary ■ Par. 2. Section 1.358–6(f)(3) is the third sentence of the paragraph Stock; Correction amended by revising the last sentence to (g)(2) Example 5.(iii) to read as follows: AGENCY: Internal Revenue Service (IRS), read as follows: § 1.1502–36 Unified loss rule. Treasury. § 1.358–6 Stock basis in certain triangular * * * * * ACTION: Correcting amendment. reorganizations. (b) * * * (3) * * * SUMMARY: This document contains * * * * * corrections to final regulations (TD (f) * * * Example 3. *** (3) * * * However, taxpayers may (i) * * * 9424) that were published in the (D) * * * The results would be the same Federal Register on Wednesday, apply paragraph (b)(2)(v) of this section to triangular reorganizations occurring if, in addition to the facts in paragraph (i)(A) September 17, 2008 (73 FR 53934) of this Example 3, M transferred its S share under sections 358, 362(e)(2), and 1502 before September 17, 2008 and on or to X in a fully taxable transaction and, as of the Internal Revenue Code. The final after December 23, 1994. permitted under paragraph (b)(1)(ii)(B) of this regulations apply to corporations filing ■ Par. 3. Section 1.1502–13(l)(1) is section, P elected to redetermine basis under consolidated returns, and corporations amended by revising the last sentence to this paragraph (b). that enter into certain tax-free read as follows: * * * * * reorganizations. The final regulations (c) * * * § 1.1502–13 Intercompany transactions. provide rules for determining the tax (8) * * * consequences of a member’s transfer * * * * * Example 6. *** (including by deconsolidation and (l) * * * (iii) * * * (A) * * * After taking into account the worthlessness) of loss shares of (1) * * * However, taxpayers may apply paragraph (j)(5)(i)(A) of this effects of all applicable rules of law, M’s subsidiary stock. In addition, the final basis in the S share at the end of year 5 is regulations provide that section section to transactions that occurred $100 (M’s original $100 basis decreased 362(e)(2) generally does not apply to prior to September 17, 2008. under § 1.1502–32 by $40 at the end of the transactions between members of a * * * * * year 1 and then increased under § 1.1502–32

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by $40 at end of the year 5 (the net of the (iii) * * * However, because all the shares government e-rulemaking portal, http:// $100 tax exempt income from the excluded are transferred, the group’s income is clearly www.regulations.gov or by e-mail to COD applied to reduce attributes and the $60 reflected. * * * executivecompensationcomments@do. noncapital, nondeductible expense from the * * * * * treas.gov or send paper comments in reduction of S’s portion of the CNOL)).* * * LaNita Van Dyke, triplicate to Executive Compensation * * * * * Chief, Publications and Regulations Branch, Comments, Office of Financial (d) * * * Legal Processing Division, Associate Chief Institutions Policy, Room 1418, (3) * * * Counsel (Procedure and Administration). Department of the Treasury, 1500 (i) * * * [FR Doc. E8–24670 Filed 10–17–08; 8:45 am] Pennsylvania Avenue, NW., (B) S’s aggregate inside loss (as defined in Washington, DC 20220. paragraph (d)(3)(iii) of this section). BILLING CODE 4830–01–P In general, the Treasury will post all * * * * * comments to http://www.regulations.gov (5) * * * DEPARTMENT OF THE TREASURY without change, including any business (ii) * * * S’s attribute reduction amount is or personal information provided such allocated proportionately (by basis) between 31 CFR Part 30 as names, addresses, e-mail addresses, (among) the non-stock Category D asset and or telephone numbers. The Treasury S’s deemed single share(s) of subsidiary Tarp Capital Purchase Program will also make such comments available stock. (See paragraphs (d)(4)(ii)(B)(2) and (d)(4)(ii)(C) of this section regarding the AGENCY: Domestic Finance, Treasury. for public inspection and copying in the portion of S’s attribute reduction amount ACTION: Interim final rule. Treasury’s Library, Room 1428, Main allocated to the Category D assets other than Department Building, 1500 SUMMARY: This interim rule, lower-tier subsidiary stock.) For allocation Pennsylvania Avenue, NW., purposes, S’s basis in each deemed single promulgated pursuant to sections Washington, DC 20220, on official share of S1 stock is its deemed basis 101(a)(1), 101(c)(5), and 111(b) of the business days between the hours of 10 (determined under paragraphs (d)(5)(i)(B) Emergency Economic Stabilization Act a.m. and 5 p.m. Eastern Time. You can and (d)(5)(i)(C) of this section), reduced by— of 2008, Division A of Public Law 110– make an appointment to inspect 343 (EESA), provides guidance on the * * * * * comments by telephoning (202) 622– executive compensation provisions (8) * * * 0990. All comments, including applicable to participants in the Example 6. *** attachments and other supporting (ii) * * * Troubled Assets Relief Program (TARP) materials, received are part of the public (B) * * * However, S’s gain recognized on Capital Purchase Program (CPP). Section record and subject to public disclosure. the transfer of Share E is computed and 111(b) of EESA requires financial You should submit only information immediately adjusts members’ bases in institutions from which the Department that you wish to make available subsidiary stock under § 1.1502–32 (because of the Treasury (Treasury) is purchasing publicly. M and S are not members of the same group troubled assets through direct purchases immediately after the transaction, the sale is to meet appropriate standards for FOR FURTHER INFORMATION CONTACT: For not an intercompany transaction subject to executive compensation and corporate further information regarding this § 1.1502–13). governance. This interim final rule interim rule, contact the Office of * * * * * includes the following standards for Domestic Finance, the Treasury, at (202) (D) * * * purposes of the CPP: (a) Limits on 927–6618. (3) * * * See paragraph (d)(5)(v)(A) of this compensation that exclude incentives SUPPLEMENTARY INFORMATION: section.* * * for senior executive officers (SEOs) of I. Background * * * * * financial institutions to take Example 8. *** unnecessary and excessive risks that This document adds 31 CFR Part 30 (F) * * * Under § 1.1502–32(c)(1)(ii)(A)(1) threaten the value of the financial under section 111(b) of the Emergency this $90 expense is allocated to the institution; (b) required recovery of any Economic Stabilization Act of 2008, Div. transferred loss shares of S stock in bonus or incentive compensation paid A of Public Law No. 110–343 (EESA) proportion to the loss in the shares, or $.90 to a SEO based on statements of with respect to the Troubled Assets per share.* * * earnings, gains, or other criteria that are Relief Program (TARP) Capital Purchase * * * * * later proven to be materially inaccurate; Program (CPP) established by the (ii) * * * (c) prohibition on the financial Department of the Treasury (Treasury) (E) * * * The facts are the same as in institution from making any golden under EESA. Section 101(a) of EESA paragraph (ii)(A) of this Example 8, except parachute payment to any SEO; and (d) authorizes the Secretary of the Treasury that P elects under paragraph (d)(6) of this agreement to limit a claim to a federal to establish a TARP to ‘‘purchase, and section to reduce M’s basis in the S shares income tax deduction for certain to make and fund commitments to by the full attribute reduction amount of $22, executive remuneration. These rules purchase, troubled assets from any in lieu of S reducing its attributes.* * * generally affect financial institutions financial institution, on such terms and (F) * * * The facts are the same as in that participate in the CPP, certain paragraph (ii)(A) of this Example 8.*** conditions as are determined by the employers related to those financial Secretary, and in accordance with this Example 9. *** institutions, and their officers. (ii) * * * However, S1’s gain recognized Act and policies and procedures on the transfer of the S2 share is computed DATES: Effective Date: These regulations developed and published by the and immediately adjusts members’ bases in are effective on October 20, 2008. Secretary.’’ Section 120 of EESA subsidiary stock under § 1.1502–32. Comment due date: November 19, 2008. provides that the TARP authorities * * * * * ADDRESSES: The Treasury requests generally terminate on December 31, (g) * * * comments on the topics addressed in 2009, unless extended upon (2) * * * this interim rule. Comments may be certification by the Secretary of the Example 5. *** submitted to the Treasury by any of the Treasury to Congress, but in no event (i) * * * S owns Asset 1 with a basis of following methods: Submit electronic later than two years from the date of $100 and a value of $20.* * * comments through the federal enactment of EESA (October 3, 2008)

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(the TARP authorities period). Thus, the institutions from which the Treasury taking into account parent-subsidiary TARP authorities period is the period directly purchases troubled assets and relationships, not brother-sister from October 3, 2008 to December 31, takes a meaningful equity or debt relationships. These tax rules generally 2009 or, if extended, the period from position. The following describes these base control on an 80-percent October 3, 2008 to the date so extended, criteria. ownership basis. Thus, these interim but not later than October 3, 2010. Section 111(b)(2)(A) of EESA requires regulations apply to controlled groups Section 111 of EESA provides that ‘‘limits on compensation that exclude in a manner similar to the executive certain financial institutions that sell incentives for senior executive officers compensation provisions of section assets to the Treasury may be subject to of a financial institution to take 302(a) of EESA, which added 26 U.S.C. specified executive compensation unnecessary and excessive risks that 162(m)(5) and 26 U.S.C. 280G(e) to the standards. In the case of auction threaten the value of the financial Internal Revenue Code, providing purchases from a financial institution institution during the period that the special tax treatment for executive that has sold assets in an amount that Secretary holds an equity or debt compensation for employers exceeds $300 million in the aggregate position in the financial institution.’’ participating in the TARP. See 26 U.S.C. (including direct purchases), the Section 111(b)(2)(B) of EESA requires 162(m)(5)(B)(iii) and 26 U.S.C. financial institution is prohibited under ‘‘a provision for the recovery by the 280G(e)(2)(A). section 111(c) of EESA from entering financial institution of any bonus or The requirements in section 111(b) into any new employment contract with incentive compensation paid to a senior apply with respect to certain executive a senior executive officer (SEO) that executive officer based on statements of officers identified in § 30.2 (Q–2) of the provides a golden parachute to the SEO earnings, gains, or other criteria that are regulations. The determination of these in the event of the SEO’s involuntary later proven to be materially executive officers is made based on termination, or in connection with the inaccurate.’’ rules similar to those set forth in the financial institution’s bankruptcy filing, Section 111(b)(2)(C) of EESA requires federal securities laws and generally insolvency, or receivership. This ‘‘a prohibition on the financial apply to the chief executive officer, the prohibition applies during the TARP institution making any golden parachute chief financial officer, and the three authorities period. The Treasury has payment to its senior executive officer mostly highly compensated executive issued separate guidance on this during the period that the Secretary officers. The three most highly provision (Notice 2008–TAAP). holds an equity or debt position in the compensated executive officers are In addition, for auction purchases, financial institution.’’ determined according to the section 302 of EESA includes tax Treasury Notice 2008–PSSFI requirements in Item 402 of Regulation provisions as amendments to sections addresses these provisions under S–K under the federal securities law (17 162(m) and 280G of the Internal section 111(b) of EESA as they apply to CFR 229.402) by reference to the total Revenue Code (26 U.S.C. 162(m) and financial institutions participating in compensation for the last completed 280G) that address compensation paid programs for systemically significant fiscal year. Until the compensation data to certain executive officers employed failing institutions. Further guidance for the current fiscal year are available, by financial institutions that sell assets will be issued for any additional the financial institution should make its under TARP. Section 302(a) of EESA programs. best efforts to identify the three most amended 26 U.S.C. 162(m) to add a new These regulations are being issued as highly compensated executive officers paragraph (m)(5), which reduces the interim final regulations to implement for the current fiscal year. Analogous deduction limit to $500,000 in the case the purpose of EESA, which is to rules apply to financial institutions that of ‘‘executive remuneration’’ and provide immediately authority and do not have securities registered with ‘‘deferred deduction executive facilities that the Secretary of the the Securities and Exchange remuneration.’’ This limit applies only Treasury can use to restore liquidity and Commission (SEC) pursuant to the to certain employers participating in an stability to the financial system of the federal securities laws. auction purchase and only for certain United States. Thus, to encourage With respect to section 111(b)(2)(A) taxable years. Employers covered under financial institutions to choose to for purposes of participation in the CPP, 26 U.S.C. 162(m)(5) are not limited to participate in the CPP, these regulations the interim final regulations require the publicly held corporations (nor even to provide those institutions with financial institution’s compensation corporations). The exception for information with respect to the committee to identify the features in the performance-based compensation and applicable executive compensation and financial institution’s SEO incentive certain other exceptions do not apply in corporate governance rules that will compensation arrangements that could the case of executive compensation apply under the CPP. lead SEOs to take unnecessary and covered under 26 U.S.C. 162(m)(5). The excessive risks that could threaten the Treasury and the Internal Revenue II. This Interim Rule value of the financial institution. The Service have issued guidance on these These interim final regulations regulations require that the provisions (I.R.S. Notice 2008–94). provide guidance on the executive compensation committee review the In the case of direct purchases, compensation and corporate governance SEO incentive compensation section 111(b)(1) of EESA requires provisions of section 111(b) of EESA arrangements with the financial financial institutions to meet with respect to the CPP. They are institution’s senior risk officers, or other appropriate standards for executive written in question and answer format. personnel acting in a similar capacity, to compensation and corporate governance The regulations clarify that the ensure that SEOs are not encouraged to as set forth by the Secretary of the requirements of section 111(b) of EESA take such risks. The regulations require Treasury. These standards apply to the apply not only to the financial such review promptly, and in no case SEOs of the financial institutions while institution that participates in the CPP, more than 90 days, after the purchase the Treasury holds an equity or debt but also to any other entity in its under the CPP. position in the financial institution controlled group. For this purpose, the The regulations also require that the acquired under the CPP. Section controlled group rules in section 414(b) compensation committee meet at least 111(b)(2) of EESA requires that at least and (c) of the Internal Revenue Code (26 annually with the financial institution’s three criteria be satisfied by financial U.S.C. 414(b) and (c)) apply, but only senior risk officers to discuss and

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review the relationship between the The regulations define an applicable that the dollar limitation and the financial institution’s risk management severance from employment as any remuneration for the taxable year are policies and practices and the SEO SEO’s severance from employment with prorated for the portion of the taxable incentive compensation arrangements. the financial institution (i) by reason of year that the Treasury holds an equity In addition, the regulations require involuntary termination of employment or debt position in the financial the compensation committee to certify with the financial institution or with an institution under the CPP. The Secretary that it has completed the reviews of the entity that is treated as the same has determined that this is an SEO incentive compensation employer as the financial institution appropriate standard for executive arrangements as outlined above. under the controlled group rules or (ii) compensation for the CPP. This rule Financial institutions with securities in connection with any bankruptcy only applies for taxable years that registered with the SEC pursuant to the filing, insolvency, or receivership of the include the period that the Treasury federal securities laws should provide financial institution or of an entity that holds an equity or debt position in the these certifications in the Compensation is treated as the same employer as the financial institution acquired under the Discussion and Analysis required financial institution under the CPP. This standard applies even though pursuant to Item 402(b) of Regulation controlled group rules. The regulations the financial institution is not subject to S–K under the federal securities laws define an involuntary termination of 26 U.S.C. 162(m)(5) and only limits the (17 CFR 229.402). Those financial employment and set forth rules for amount of the deduction that may be institutions that do not have securities determining when a payment on claimed. Thus, no deduction may be registered with the SEC pursuant to the account of an applicable severance from claimed for remuneration during a federal securities laws are required to employment occurs. These rules are taxable year for compensation in excess provide the certifications to their substantially the same as the standards of $500,000 for a SEO, and the special primary regulatory agency. in IRS Notice 2008–94 regarding new rules relating to deferred deduction With respect to section 111(b)(2)(B) of paragraph (e) of 26 U.S.C. 280G, and are executive remuneration would also EESA for purposes of participation in also generally similar to the pre-existing apply. See I.R.S. Notice 2008–94 for the CPP, the interim final regulations standards under 26 U.S.C. 280G (see 26 additional information regarding the provide that the SEO bonus and CFR 1.280G–1, Q&A–22(a)). deduction limit under 26 U.S.C. The regulations include a special rule incentive compensation paid during the 162(m)(5). for cases in which a financial institution period that the Treasury holds an equity (target) that has sold troubled assets to III. Procedural Requirements or debt position acquired under the CPP the Treasury through the CPP is must be subject to recovery or Justification for Interim Rulemaking acquired by an entity (acquirer) in an ‘‘clawback’’ by the financial institution acquisition of any form. Under this rule, This rule is promulgated pursuant to if the payments were based on acquirer does not become subject to EESA, the purpose of which is to materially inaccurate financial section 111(b) of EESA merely as a immediately provide authority and statements and any other materially result of the acquisition. The rule facilities that the Secretary of the inaccurate performance metric criteria. applies only if the acquirer is not related Treasury can use to restore liquidity and The regulations include a comparison of to target and treats target as related if stability to the financial system of the this requirement to section 304 of the stock or other interests of target are United States. Specifically, this rule Sarbanes-Oxley Act of 2002 (Sarbanes- treated (under 26 U.S.C. 318(a) other implements certain provisions of Oxley) (Pub. L. 107–204). than paragraph (4) thereof) as owned by section 111 of EESA, which sets forth With respect to section 111(b)(2)(C) of acquirer. With respect to target, any executive compensation standards for EESA for purposes of participation in employees of target who are SEOs prior financial institutions that sell troubled the CPP, the interim final regulations to the acquisition will be subject to assets to the Treasury under EESA. The prohibit a financial institution from section 111(b) of EESA until after the statute provides that the Secretary may making any golden parachute payment first anniversary following the issue guidance and regulations to carry to a SEO during the period the Treasury acquisition. out these provisions and that such holds an equity or debt position The regulations set forth an additional guidance and regulations may be acquired under the CPP. The regulations standard for executive compensation effective upon issuance. define a golden parachute payment in and corporate governance under section In order to encourage financial the same way as under 26 U.S.C. 280G 111(b)(1) of EESA. Under this standard, institutions to choose to participate in as applied with respect to new the financial institution must agree, as the CPP, those institutions must have paragraph (e) of 26 U.S.C. 280G, added a condition to participate in the CPP, timely and reliable information with by section 302(a) of EESA relating to that no deduction will be claimed for respect to the applicable executive golden parachute payments. Thus, a federal income tax purposes for compensation and corporate governance golden parachute payment means any remuneration that would not be rules that will apply under the program. payment in the nature of compensation deductible if 26 U.S.C. 162(m)(5) were Accordingly, because EESA authorizes to (or for the benefit of) a SEO made on to apply to the financial institution. For section 111 guidance to be immediately account of an applicable severance from this purpose, during the period that the effective and because of exigencies in employment to the extent the aggregate Treasury holds an equity or debt the financial markets, the Treasury finds present value of such payments equals position in the financial institution that it would be contrary to the public or exceeds an amount equal to three acquired under the CPP: (i) The interest, pursuant to 5 U.S.C. 553(b)(B), times the SEO’s base amount. The term financial institution (including entities to delay the issuance of this rule ‘‘base amount’’ for a SEO has the in its controlled group) is treated as an pending an opportunity for public meaning set forth in 26 U.S.C. ‘‘applicable employer,’’ (ii) its SEOs are comment and good cause exists to 280G(b)(3) and 26 CFR 1.280G–1, Q&A– treated as ‘‘covered executives,’’ and dispense with this requirement. For the 34 (except that references to ‘‘change in (iii) any taxable year that includes any same reasons, pursuant to 5 U.S.C. ownership or control’’ are treated as portion of that period is treated as an 553(d)(3), the Treasury has determined referring to an ‘‘applicable severance ‘‘applicable taxable year,’’ each as that there is good cause for the interim from employment’’). defined in 26 U.S.C. 162(m)(5), except final rule to become effective

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immediately upon publication. While 30.8 Q–8: What actions are necessary for a (2)(i) Is the principal executive officer this regulation is effective immediately financial institution participating in the (PEO) (or person acting in a similar upon publication, the Treasury is CPP to comply with section 111(b)(2)(C) capacity) of such financial institution inviting public comment on the of EESA? (or, in the case of a controlled group, of 30.9 Q–9: What is a golden parachute regulation during a thirty-day period payment under section 111(b) of EESA? the parent entity); and will consider all comments in 30.10 Q–10: Are there other conditions that (ii) The principal financial officer developing a final rule. are required under the executive (PFO) (or person acting in a similar capacity) of such financial institution Regulatory Planning and Review compensation and corporate governance standards in section 111(b)(1) of EESA? (or, in the case of a controlled group, of The rule does not meet the criteria for 30.11 Q–11: How does section 111(b) of the parent entity); or a ‘‘significant regulatory action’’ as EESA operate in connection with an (iii) One of the three most highly defined in Executive Order 12866. acquisition, merger, or reorganization? compensated executive officers of such Therefore, the regulatory review Authority: Section 111(b) of the Emergency financial institution (or the financial procedures contained therein do not Economic Stabilization Act of 2008, Div. A institution’s controlled group) other apply. of Public Law 110–343; 122 Stat 3765. than the PEO or the PFO. (b) Determination of three most highly Regulatory Flexibility Act § 30.0 Executive compensation and corporate governance. compensated executive officers. For Because no notice of proposed financial institutions with securities rulemaking is required, this rule is not The following questions and answers registered with the Securities and subject to the provisions of the reflect the executive compensation and Exchange Commission (SEC) pursuant Regulatory Flexibility Act (5 U.S.C corporate governance requirements of to the federal securities law, the three chapter 6). section 111(b) of the Emergency most highly compensated executive Economic Stabilization Act of 2008, Div. List of Subjects in 31 CFR Part 30 officers are determined according to the A of Public Law No. 110–343 (EESA) requirements in Item 402 of Regulation Executive compensation, Troubled with respect to participation in the S–K under the federal securities laws assets. Troubled Assets Relief Program (TARP) (17 CFR 229.402). The term ‘‘executive ■ For the reasons set out in the Capital Purchase Program (CPP) officer’’ has the same meaning as preamble, Title 31 of the CFR is established by the Treasury thereunder: defined in Rule 3b–7 of the Securities amended as follows: § 30.1 Q–1: To what financial institutions Exchange Act of 1934 (Exchange Act) does this part apply? (17 CFR 240.3b–7). For purposes of PART 30—TARP CAPITAL PURCHASE determining the three most highly (a) General rule. This part applies to PROGRAM compensated executive officers, any financial institution that compensation is determined as it is in ■ 1. Add part 30 to read as follows: participates in the CPP. Item 402 of Regulation S–K to include (b) Controlled group rules. For total compensation for the last PART 30—TARP CAPITAL PURCHASE purposes of section 111(b) of EESA, two completed fiscal year without regard to PROGRAM or more persons who are treated as a whether the compensation is includible single employer under section 26 U.S.C. Sec. in the executive officer’s gross income. 414(b) (employees of a controlled group 30.0 Executive compensation and corporate Until the compensation data for the governance. of corporations) and section 26 U.S.C. current fiscal year are available, the 30.1 Q–1: To what financial institutions 414(c) (employees of partnerships, financial institution should make its does this part apply? proprietorships, etc., that are under best efforts to identify the three most 30.2 Q–2: Who is a senior executive officer common control) are treated as a single highly compensated executive officers (SEO) under section 111 of EESA? employer. However, for purposes of 30.3 Q–3: What actions are necessary for a for the current fiscal year. section 111(b) of EESA, the rules for financial institution participating in the (c) Application to private employers. CPP to comply with section 111(b)(2)(A) brother-sister controlled groups and Rules analogous to the rules in of EESA? combined groups are disregarded paragraphs (a) and (b) of this section 30.4 Q–4: How should the financial (including disregarding the rules in apply to financial institutions that are institution comply with the standard section 26 U.S.C. 1563(a)(2) and (a)(3) not subject to the federal securities laws, under § 30.3 that the compensation with respect to corporations and the rules, and regulations, including committee, or a committee acting in a parallel rules that are in section 26 CFR similar capacity, review the SEO financial institutions that do not have 1.414(c)–2(c) with respect to other securities registered with the SEC incentive compensation arrangements to organizations conducting trades or ensure that the SEO incentive pursuant to the federal securities laws. compensation arrangements do not businesses). See § 30.11 (Q–11) of this encourage the SEOs to take unnecessary part for special rules where a financial § 30.3 Q–3: What actions are necessary for and excessive risks that threaten the institution is acquired. a financial institution participating in the value of the financial institution? CPP to comply with section 111(b)(2)(A) of § 30.2 Q–2: Who is a senior executive 30.5 Q–5: How should the financial EESA? officer (SEO) under section 111 of EESA? institution comply with the certification (a) In order to comply with section requirements under § 30.3 of this (a) General definition. A SEO means 111(b)(2)(A) of EESA for purposes of section? a ‘‘named executive officer’’ as defined participation in the CPP, a financial 30.6 Q–6: What actions are necessary for a in Item 402 of Regulation S–K under the institution must comply with the financial institution participating in the federal securities laws (17 CFR 229.402) following rules: CPP to comply with section 111(b)(2)(B) who: (1) Promptly, and in no case more of EESA? 30.7 Q–7: How do the standards under (1) Is employed by a financial than 90 days, after the purchase under section 111(b)(2)(B) of EESA differ from institution that is participating in the the CPP, the financial institution’s section 304 of the Sarbanes-Oxley Act of CPP while the Treasury holds an equity compensation committee, or a 2002 (Sarbanes-Oxley) (Pub. Law No. or debt position acquired under the committee acting in a similar capacity, 107–204)? CPP; and must review the SEO incentive

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compensation arrangements with such similar capacity, of the financial § 30.7 Q–7: How do the standards under financial institution’s senior risk institution must provide the section 111(b)(2)(B) of EESA differ from officers, or other personnel acting in a certifications required by § 30.3 (Q–3) section 304 of the Sarbanes-Oxley Act of similar capacity, to ensure that the SEO 2002 (Sarbanes-Oxley) (Pub. Law No. 107– stating that it has reviewed, with such 204)? incentive compensation arrangements financial institution’s senior risk do not encourage SEOs to take officers, the SEO incentive Section 304 of Sarbanes-Oxley requires the forfeiture by a public unnecessary and excessive risks that compensation arrangements to ensure company’s chief executive officer and threaten the value of the financial that the incentive compensation the chief financial officer of any bonus, institution; arrangements do not encourage SEOs to (2) Thereafter, the compensation incentive-based compensation, or take unnecessary and excessive risks. equity-based compensation received committee, or a committee acting in a Providing a statement similar to the similar capacity, must meet at least and any profits from sales of the following and in the manner provided annually with senior risk officers, or company’s securities during the twelve- in paragraphs (b) and (c) of this section, individuals acting in a similar capacity, month period following a materially to discuss and review the relationship as applicable, would satisfy this non-compliant financial report. Section between the financial institution’s risk standard: ‘‘The compensation 111(b)(2)(B) of EESA differs from management policies and practices and committee certifies that it has reviewed section 304 of Sarbanes-Oxley in several the SEO incentive compensation with senior risk officers the SEO ways. The standard under section arrangements; and incentive compensation arrangements 111(b)(2)(B) of EESA: Applies to the (3) The compensation committee, or a and has made reasonable efforts to three most highly compensated committee acting in a similar capacity, ensure that such arrangements do not executive officers in addition to the PEO must certify that it has completed the encourage SEOs to take unnecessary and and the PFO; applies to both public and reviews of the SEO incentive excessive risks that threaten the value of private financial institutions; is not compensation arrangements required the financial institution.’’ exclusively triggered by an accounting under paragraphs (a)(1) and (2) of this (b) Location. For financial institutions restatement; does not limit the recovery period; and covers not only material section. with securities registered with the SEC inaccuracies relating to financial (b) These rules apply while the pursuant to the federal securities law, reporting but also material inaccuracies Treasury holds an equity or debt the compensation committee, or a position acquired under the CPP. relating to other performance metrics committee acting in a similar capacity, used to award bonuses and incentive § 30.4 Q–4: How should the financial should provide this certification in the compensation. institution comply with the standard under Compensation Discussion and Analysis § 30.3 that the compensation committee, or required pursuant to Item 402(b) of § 30.8 Q–8: What actions are necessary for a committee acting in a similar capacity, Regulation S–K under the federal a financial institution participating in the review the SEO incentive compensation securities laws (17 CFR 229.402). CPP to comply with section 111(b)(2)(C) of arrangements to ensure that the SEO EESA? incentive compensation arrangements do (c) Application to private financial In order to comply with section not encourage the SEOs to take institutions. The rules provided in this unnecessary and excessive risks that 111(b)(2)(C) of EESA for purposes of section are also applicable to financial participation in the CPP, a financial threaten the value of the financial institutions that are not subject to the institution? institution must prohibit any golden federal securities laws, rules, and parachute payment to a SEO during the Because each financial institution regulations, including financial faces different material risks given the period the Treasury holds an equity or institutions that do not have securities unique nature of its business and the debt position acquired under the CPP. registered with the SEC pursuant to the markets in which it operates, the federal securities laws. A private § 30.9 Q–9: What is a golden parachute compensation committee, or a payment under section 111(b) of EESA? committee acting in a similar capacity, financial institution should file the (a) Definition. As provided under 26 should discuss with the financial certification of the compensation U.S.C. 280G(e), a ‘‘golden parachute institution’s senior risk officers, or other committee, or a committee acting in a payment’’ means any payment in the personnel acting in a similar capacity, similar capacity, with its primary nature of compensation to (or for the the risks (including long-term as well as regulatory agency. benefit of) a SEO made on account of an short-term risks) that such financial § 30.6 Q–6: What actions are necessary for applicable severance from employment institution faces that could threaten the a financial institution participating in the to the extent the aggregate present value value of the financial institution. The CPP to comply with section 111(b)(2)(B) of of such payments equals or exceeds an compensation committee, or a EESA? amount equal to three times the SEO’s committee acting in a similar capacity, base amount. The term ‘‘base amount’’ should identify the features in the In order to comply with section for a SEO has the meaning set forth in financial institution’s SEO incentive 111(b)(2)(B) of EESA for purposes of 26 U.S.C. 280G(b)(3) and 26 CFR compensation arrangements that could participation in the CPP, a financial 1.280G–1, Q&A–34, except that lead SEOs to take such risks. Any such institution must require that SEO bonus references to ‘‘change in ownership or features should be limited in order to and incentive compensation paid during control’’ are treated as referring to an ensure that the SEOs are not encouraged the period that the Treasury holds an ‘‘applicable severance from to take risks that are unnecessary or equity or debt position acquired under employment.’’ excessive. the CPP are subject to recovery or (b) Applicable severance from ‘‘clawback’’ by the financial institution § 30.5 Q–5: How should the financial employment. (1) Definition. An institution comply with the certification if the payments were based on applicable severance from employment requirements under § 30.3? materially inaccurate financial means any SEO’s severance from (a) Certification. The compensation statements or any other materially employment with the financial committee, or a committee acting in a inaccurate performance metric criteria. institution.

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(i) By reason of involuntary (2) Excluded amounts. Payments on Based on the rules in paragraph (a) of this termination of employment with the account of an applicable severance from § 30.11 (Q–11), the SEOs of financial financial institution or with an entity employment do not include amounts institution B are not subject to section 111(b) that is treated as the same employer as paid to a SEO under a tax qualified of EESA solely as a result of the acquisition of financial institution A in January 2009. the financial institution under § 30.1 retirement plan. The SEOs of financial institution A at the (Q–1) of this part; or § 30.10 Q–10: Are there other conditions time of the acquisition are subject to section (ii) In connection with any that are required under the executive 111(b)(2)(C) of EESA until January 2010, the bankruptcy filing, insolvency, or compensation and corporate governance first anniversary following the acquisition. receivership of the financial institution standards in section 111(b)(1) of EESA? Dated: October 14, 2008. or of an entity that is treated as the same The financial institution must agree, Neel Kashkari, employer as the financial institution as a condition to participate in the CPP, under § 30.1 (Q–1) of this part. Interim Assistant Secretary for Financial that no deduction will be claimed for Stability. (2) Involuntary termination. (i) An federal income tax purposes for [FR Doc. E8–24781 Filed 10–15–08; 11:15 involuntary termination from remuneration that would not be am] employment means a termination from deductible if 26 U.S.C. 162(m)(5) were BILLING CODE 4810–25–P employment due to the independent to apply to the financial institution. For exercise of the unilateral authority of this purpose, during the period that the the employer to terminate the SEO’s Treasury holds an equity or debt DEPARTMENT OF HEALTH AND services, other than due to the SEO’s position in the financial institution HUMAN SERVICES implicit or explicit request to terminate acquired under the CPP: employment, where the SEO was (a) The financial institution Centers for Disease Control and willing and able to continue performing (including entities in its controlled Prevention services. An involuntary termination group) is treated as an ‘‘applicable from employment may include the employer,’’ 42 CFR Part 34 financial institution’s failure to renew a (b) Its SEOs are treated as ‘‘covered contract at the time such contract executives,’’ and [Docket No. CDC–2008–0002] expires, provided that the SEO was (c) Any taxable year that includes any RIN 0920–AA20 willing and able to execute a new portion of that period is treated as an contract providing terms and conditions ‘‘applicable taxable year,’’ each as Medical Examination of Aliens— substantially similar to those in the defined in 26 U.S.C. 162(m)(5), except Revisions to Medical Screening expiring contract and to continue that the dollar limitation and the Process providing such services. In addition, a remuneration for the taxable year are AGENCY: Centers for Disease Control and SEO’s voluntary termination from prorated for the portion of the taxable Prevention, U.S. Department of Health employment constitutes an involuntary year that the Treasury holds an equity and Human Services. termination from employment if the or debt position in the financial termination from employment institution under the CPP. ACTION: Correcting amendments. constitutes a termination for good SUMMARY: The Centers for Disease reason due to a material negative change § 30.11 Q–11: How does section 111(b) of Control and Prevention (CDC), within in the SEO’s employment relationship. EESA operate in connection with an acquisition, merger, or reorganization? the U.S. Department of Health and See 26 CFR 1.409A–1(n)(2). Human Services (HHS), published an (ii) A severance from employment by (a) Special rules for acquisitions, mergers, or reorganizations. In the event Interim Final Rule in the Federal a SEO is by reason of involuntary Register on October 6, 2008 (73 FR termination even if the SEO has that a financial institution (target) that had sold troubled assets to the Treasury 58047), updating regulations that govern voluntarily terminated employment in medical examinations that aliens must any case where the facts and through the CPP is acquired by an entity that is not related to target (acquirer) in undergo before they may be admitted to circumstances indicate that absent such the United States. This document voluntary termination the financial an acquisition of any form, acquirer will not become subject to section 111(b) of corrects an omission contained in the institution would have terminated the rule. SEO’s employment and the SEO had EESA merely as a result of the knowledge that he or she would be so acquisition. For this purpose, an DATES: Effective on October 20, 2008. terminated. acquirer is related to target if stock or FOR FURTHER INFORMATION, CONTACT: other interests of target are treated (c) Payments on account of an Stacy M. Howard, Division of Global (under 26 U.S.C. 318(a) other than applicable severance from employment. Migration and Quarantine, Centers for paragraph (4) thereof) as owned by (1) Definition. A payment on account of Disease Control and Prevention, U.S. acquirer. With respect to the target, any an applicable severance from Department of Health and Human employees of target who are SEOs prior employment means a payment that Services, 1600 Clifton Road, NE., E03, to the acquisition will be subject to would not have been payable if no Atlanta, GA 30333; telephone 404–498– section 111(b)(2)(C) of EESA until after applicable severance from employment 1600. the first anniversary following the had occurred (including amounts that SUPPLEMENTARY INFORMATION: The acquisition. would otherwise have been forfeited if Centers for Disease Control and no applicable severance from (b) Example. In 2008, financial institution Prevention (CDC), within the U.S. employment had occurred) and amounts A sells $100 million of troubled assets to the Department of Health and Human that are accelerated on account of the Treasury through the CPP. In January 2009, Services (HHS), published an Interim financial institution B, which is not applicable severance from employment. otherwise subject to section 111(b) of EESA, Final Rule in the Federal Register of See 26 CFR 1.280G–1, Q&A–24(b), for acquires financial institution A in a stock October 6, 2008, FR Doc. E8–23485, (73 rules regarding the determination of the purchase transaction, with the result that FR 58047) updating regulations that amount that is on account of an financial institution A becomes a wholly govern medical examinations that aliens acceleration. owned subsidiary of financial institution B. must undergo before they may be

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admitted to the United States. CDC DEPARTMENT OF DEFENSE Executive Order 12866, dated inadvertently omitted an exception to September 30, 1993. the chest x-ray examination for aliens in Defense Acquisition Regulations B. Regulatory Flexibility Act the United States who apply for System adjustment of status to permanent DoD certifies that this final rule will resident. CDC is publishing this 48 CFR Parts 215 and 252 not have a significant economic impact correction to clarify that an alien of any RIN 0750–AF40 on a substantial number of small entities age in the United States who applies for within the meaning of the Regulatory adjustment of status to permanent Defense Federal Acquisition Flexibility Act, 5 U.S.C. 601, et seq., resident shall not be required to have a Regulation Supplement; Evaluation because use of the evaluation factor is chest x-ray examination unless their Factor for Use of Members of the discretionary and is not expected to tuberculin skin test, or an equivalent Selected Reserve (DFARS Case 2006– affect a significant number of test that shows an immune response to D014) acquisitions. Mycobacterium tuberculosis, is positive. AGENCY: Defense Acquisition C. Paperwork Reduction Act List of Subjects in 42 CFR Part 34 Regulations System, Department of This final rule contains a new Defense (DoD). information collection requirement. The Aliens, Health care, Scope of ACTION: Final rule. Office of Management and Budget has examination, Passports and visas, Public approved the information collection health. SUMMARY: DoD has issued a final rule under Control Number 0704–0446. amending the Defense Federal ■ Accordingly, 42 CFR part 34 is Acquisition Regulation Supplement List of Subjects in 48 CFR Parts 215 and corrected by making the following (DFARS) to implement Section 819 of 252 correcting amendments: the National Defense Authorization Act Government procurement. for Fiscal Year 2006. Section 819 PART 34—MEDICAL EXAMINATION OF authorizes DoD to use an evaluation Michele P. Peterson ALIENS factor that considers whether an offeror Editor, Defense Acquisition Regulations intends to perform a contract using System. ■ 1. The authority citation for part 34 employees or individual subcontractors ■ Therefore, 48 CFR Parts 215 and 252 continues to read as follows: who are members of the Selected are amended as follows: Authority: 42 U.S.C. 252; 8 U.S.C. 1182 Reserve. ■ 1. The authority citation for 48 CFR and 1222. DATES: Effective Date: October 20, 2008. Parts 215 and 252 continues to read as follows: FOR FURTHER INFORMATION CONTACT: Mr. ■ 2. Amend § 34.3 by revising paragraph Michael Benavides, Defense Acquisition Authority: 41 U.S.C. 421 and 48 CFR (e)(2)(iv) to read as follows: Regulations System, OUSD (AT&L) Chapter 1. DPAP (DARS), IMD 3D139, 3062 § 34.3 Scope of examinations. PART 215—CONTRACTING BY Defense Pentagon, Washington, DC * * * * * NEGOTIATION 20301–3062. Telephone 703–602–1302; (e) * * * facsimile 703–602–7887. Please cite ■ 2. Sections 215.370 through 215.370– (2) * * * DFARS Case 2006–D014. 3 are added to read as follows: SUPPLEMENTARY INFORMATION: (iv) Exceptions. Serologic testing for 215.370 Evaluation factor for employing or syphilis and HIV shall not be required A. Background subcontracting with members of the if the alien is under the age of 15, unless This final rule implements Section Selected Reserve. there is a reason to suspect infection 819 of the National Defense with syphilis or HIV. An alien, 215.370–1 Definition. Authorization Act for Fiscal Year 2006 Selected Reserve, as used in this regardless of age, in the United States (Pub. L. 109–163). Section 819 who applies for adjustment of status to section, is defined in the provision at authorizes DoD to use an evaluation 252.215–7005, Evaluation Factor for lawful permanent resident shall not be factor that considers whether an offeror required to have a chest x-ray Employing or Subcontracting with intends to perform a contract using Members of the Selected Reserve. examination unless their tuberculin skin employees or individual subcontractors test, or an equivalent test for showing an who are members of the Selected 215.370–2 Evaluation factor. immune response to Mycobacterium Reserve, and requires offerors to submit In accordance with Section 819 of the tuberculosis antigens, is positive. HHS/ documentation supporting any stated CDC may authorize exceptions to the National Defense Authorization Act for intent to use such employees or Fiscal Year 2006 (Pub. L. 109–163), the requirement for a tuberculin skin test, subcontractors. The rule contains a an equivalent test for showing an contracting officer may use an solicitation provision and a contract evaluation factor that considers whether immune response to Mycobacterium clause addressing the evaluation factor tuberculosis antigens, or chest X-ray an offeror intends to perform the and the obligations of a contractor contract using employees or individual examination for good cause, upon awarded a contract based on the application approved by the Director. subcontractors who are members of the evaluation factor. Selected Reserve. See PGI 215.370–2 for * * * * * DoD published a proposed rule at 72 guidance on use of this evaluation Dated: October 14, 2008. FR 51209 on September 6, 2007. DoD factor. received no comments on the proposed Ann C. Agnew, rule. Therefore, DoD has adopted the 215.370–3 Solicitation provision and Executive Secretary, Department of Health proposed rule as a final rule without contract clause. and Human Services. change. (a) Use the provision at 252.215–7005, [FR Doc. E8–24797 Filed 10–17–08; 8:45 am] This rule was not subject to Office of Evaluation Factor for Employing or BILLING CODE 4163–18–P Management and Budget review under Subcontracting with Members of the

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Selected Reserve, in solicitations that Use of Employees or Individual according to the Fishery Management include an evaluation factor considering Subcontractors Who Are Members of Plan for Groundfish of the Gulf of whether an offeror intends to perform the Selected Reserve (Oct 2008) Alaska (FMP) prepared by the North the contract using employees or (a) Definition. Selected Reserve, as used in Pacific Fishery Management Council individual subcontractors who are this clause, has the meaning given that term under authority of the Magnuson– members of the Selected Reserve. in 10 U.S.C. 10143. Selected Reserve Stevens Fishery Conservation and (b) Use the clause at 252.215–7006, members normally attend regular drills Management Act. Regulations governing Use of Employees or Individual throughout the year and are the group of fishing by U.S. vessels in accordance Subcontractors Who are Members of the Reserves most readily available to the with the FMP appear at subpart H of 50 Selected Reserve, in solicitations that President. CFR part 600 and 50 CFR part 679. include the provision at 252.215–7005. (b) If the Contractor stated in its offer that The 2008 Pacific halibut PSC limit it intends to use members of the Selected Include the clause in the resultant allocated to vessels using hook–and– contract only if the contractor stated in Reserve in the performance of this contract— (1) The Contractor shall use employees, or line gear targeting groundfish other than its proposal that it intends to perform individual subcontractors, who are members demersal shelf rockfish in the Southeast the contract using employees or of the Selected Reserve in the performance of Outside District or sablefish in the GOA individual subcontractors who are the contract to the fullest extent consistent was established as 290 metric tons by members of the Selected Reserve, and with efficient contract performance; and the 2008 and 2009 harvest specifications that statement was used as an (2) The Government has the right to for groundfish of the GOA (73 FR 10562, evaluation factor in the award decision. terminate the contract for default if the February 27, 2008). Contractor willfully or intentionally fails to In accordance with § 679.21(d)(7)(ii), PART 252—SOLICITATION use members of the Selected Reserve, as the Regional Administrator has PROVISIONS AND CONTRACT employees or individual subcontractors, in determined that the 2008 Pacific halibut CLAUSES the performance of the contract. (End of clause) PSC limit allocated to vessels using ■ 3. Sections 252.215–7005 and hook–and–line gear targeting groundfish [FR Doc. E8–24480 Filed 10–17–08; 8:45 am] 252.215–7006 are added to read as other than demersal shelf rockfish in the follows: BILLING CODE 5001–08–P Southeast Outside District or sablefish in the GOA will soon be reached. 252.215–7005 Evaluation Factor for Therefore, NMFS is prohibiting directed Employing or Subcontracting With DEPARTMENT OF COMMERCE fishing for groundfish by vessels using Members of the Selected Reserve. hook–and–line gear in the Gulf of As prescribed in 215.370–3(a), use the National Oceanic and Atmospheric Alaska (GOA), except for demersal shelf following provision: Administration rockfish in the Southeast Outside District or sablefish in the GOA. Evaluation Factor for Employing or 50 CFR Part 679 Subcontracting With Members of the After the effective date of this closure, Selected Reserve (Oct 2008) [Docket No. 071106671–8010–02] the maximum retainable amounts at 50 CFR 679.20(e) and (f) apply at any time (a) Definition. Selected Reserve, as used in RIN 0648–XL33 during a trip for vessels fishing for this provision, has the meaning given that term in 10 U.S.C. 10143. Selected Reserve Fisheries of the Exclusive Economic demersal shelf rockfish in the Southeast members normally attend regular drills Zone Off Alaska; Hook–and–Line Gear Outside District or sablefish in the GOA. throughout the year and are the group of in the Gulf of Alaska Classification Reserves most readily available to the President. AGENCY: National Marine Fisheries This action responds to the best (b) This solicitation includes an evaluation Service (NMFS), National Oceanic and available information recently obtained factor that considers the offeror’s intended Atmospheric Administration (NOAA), from the fishery. The Assistant use of employees, or individual Commerce. Administrator for Fisheries, NOAA, subcontractors, who are members of the Selected Reserve. ACTION: Temporary rule; closure. (AA), finds good cause to waive the (c) If the offeror, in the performance of any requirement to provide prior notice and SUMMARY: contract resulting from this solicitation, NMFS is prohibiting directed opportunity for public comment intends to use employees or individual fishing for groundfish by vessels using pursuant to the authority set forth at 5 subcontractors who are members of the hook–and–line gear in the Gulf of U.S.C. 553(b)(B) as such a requirement Selected Reserve, the offeror’s proposal shall Alaska (GOA), except for demersal shelf is impracticable and contrary to the include documentation to support this intent. rockfish in the Southeast Outside public interest. This requirement is Such documentation may include, but is not District or sablefish in the GOA. This impracticable and contrary to the public limited to— action is necessary to prevent exceeding interest as it would prevent NMFS from (1) Existing company documentation, such the 2008 Pacific halibut prohibited as payroll or personnel records, indicating responding to the most recent fisheries the names of the Selected Reserve members species catch (PSC) limit specified for data in a timely fashion and would who are currently employed by the company; vessels using hook–and–line gear delay closing directed fishing for or targeting groundfish other than groundfish by vessels using hook–and– (2) A statement that one or more positions demersal shelf rockfish in the Southeast line gear in the GOA. NMFS was unable will be set aside to be filled by new hires of Outside District or sablefish in the GOA. to publish a notice providing time for Selected Reserve members, along with DATES: Effective 1200 hrs, Alaska local public comment because the most verifying documentation. time (A.l.t.), October 16, 2008, through recent, relevant data only became (End of provision) 2400 hrs, A.l.t., December 31, 2008. available as of October 14, 2008. 252.215–7006 Use of Employees or FOR FURTHER INFORMATION CONTACT: Josh The AA also finds good cause to Individual Subcontractors Who Are Keaton, 907–586–7228. waive the 30-day delay in the effective Members of the Selected Reserve. SUPPLEMENTARY INFORMATION: NMFS date of this action under 5 U.S.C. As prescribed in 215.370–3(b), use the manages the groundfish fishery in the 553(d)(3). This finding is based upon following clause: GOA exclusive economic zone the reasons provided above for waiver of

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prior notice and opportunity for public This action is required by § 679.21 Dated: October 15, 2008. comment. and is exempt from review under Emily H. Menashes, Executive Order 12866. Acting Director, Office of Sustainable Authority: 16 U.S.C. 1801 et seq. Fisheries, National Marine Fisheries Service. [FR Doc. E8–24905 Filed 10–15–08; 8:45 am] BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 203

Monday, October 20, 2008

This section of the FEDERAL REGISTER please contact: Hugo Teufel III (703– contained in each system in order to contains notices to the public of the proposed 235–0780), Chief Privacy Officer, make agency recordkeeping practices issuance of rules and regulations. The Privacy Office, U.S. Department of transparent, to notify individuals purpose of these notices is to give interested Homeland Security, Washington, DC regarding the uses to which personally persons an opportunity to participate in the 20528. identifiable information is put, and to rule making prior to the adoption of the final rules. SUPPLEMENTARY INFORMATION: assist individuals in finding such files Background: Pursuant to the savings within the agency. clause in the Homeland Security Act of The Privacy Act allows Government DEPARTMENT OF HOMELAND 2002, Public Law 107–296, Section agencies to exempt certain records from SECURITY 1512, 116 Stat. 2310 (November 25, the access and amendment provisions. If 2002), the Department of Homeland an agency claims an exemption, 6 CFR Part 5 Security (DHS) and its components and however, it must issue a Notice of [Docket No. DHS–2008–0095] offices have relied on preexisting Proposed Rulemaking to make clear to Privacy Act systems of records notices the public the reasons why a particular Privacy Act of 1974: Implementation of for the collection and maintenance of exemption is claimed. Exemptions; Grievances, Appeals, and records concerning files relating to DHS is claiming exemptions from Disciplinary Action System of Records employee grievances, appeals, and certain requirements of the Privacy Act disciplinary action. for Grievances, Appeals, and AGENCY: Department of Homeland As part of its efforts to streamline and Disciplinary Action. Some information Security. consolidate its Privacy Act record in Grievances, Appeals, and ACTION: Notice of proposed rulemaking. systems, DHS is establishing a new Disciplinary Action relates to official agency-wide system of records under DHS national security, law enforcement, SUMMARY: The Department of Homeland immigration, intelligence activities, and Security (DHS) is giving concurrent the Privacy Act (5 U.S.C. 552a) for DHS grievances, appeals, and disciplinary protective services to the President of notice of a revised and updated system the United States or other individuals of records pursuant to the Privacy Act actions. This will ensure that all components of DHS follow the same pursuant to Section 3056 and 3056A of of 1974 for the Department of Homeland Title 18. These exemptions are needed Security Grievances, Appeals, and privacy rules for collecting and handling grievances, appeals, and to protect information relating to DHS Disciplinary Action system of records activities from disclosure to subjects or and this proposed rulemaking. In this disciplinary action files. DHS will use this system to collect and maintain others related to these activities. proposed rulemaking, the Department Specifically, the exemptions are proposes to exempt portions of the records submitted to it by DHS personnel and others. In this notice of required to preclude subjects of these system of records from one or more activities from frustrating these provisions of the Privacy Act because of proposed rulemaking, DHS now is proposing to exempt Grievances, processes; to avoid disclosure of activity criminal, civil, and administrative techniques; to protect the identities and enforcement requirements. Appeals, and Disciplinary Action, in part, from certain provisions of the physical safety of confidential DATES: Comments must be received on Privacy Act. informants and law enforcement or before November 19, 2008. The Privacy Act embodies fair personnel; to ensure DHS’ ability to ADDRESSES: You may submit comments, information principles in a statutory obtain information from third parties identified by docket number DHS– framework governing the means by and other sources; to protect the privacy 2008–0095, by one of the following which the United States Government of third parties; to safeguard classified methods: collects, maintains, uses, and information; and to safeguard records in • Federal e-Rulemaking Portal: disseminates personally identifiable connection with providing protective http://www.regulations.gov. Follow the information. The Privacy Act applies to services to the President of the United instructions for submitting comments. information that is maintained in a States or other individuals pursuant to • Fax: 1–866–466–5370. Section 3056 and 3056A of Title 18. • ‘‘system of records.’’ A ‘‘system of Mail: Hugo Teufel III, Chief Privacy records’’ is a group of any records under Disclosure of information to the subject Officer, Department of Homeland the control of an agency from which of the inquiry could also permit the Security, Washington, DC 20528. information is retrieved by the name of subject to avoid detection or Instructions: All submissions received the individual or by some identifying apprehension. must include the agency name and number, symbol, or other identifying The exemptions proposed here are docket number for this notice. All particular assigned to the individual. standard law enforcement and national comments received will be posted Individuals may request their own security exemptions exercised by a large without change to http:// records that are maintained in a system number of Federal law enforcement and www.regulations.gov, including any of records in the possession or under the intelligence agencies. In appropriate personal information provided. control of DHS by complying with DHS circumstances, where compliance Docket: For access to the docket to Privacy Act regulations, 6 CFR part 5. would not appear to interfere with or read background documents or The Privacy Act requires each agency adversely affect the law enforcement comments received, go to http:// to publish in the Federal Register a purposes of this system and the overall www.regulations.gov. description of the type and character of law enforcement process, the applicable FOR FURTHER INFORMATION CONTACT: For each system of records that the agency exemptions may be waived on a case by general questions and privacy issues, maintains, and the routine uses that are case basis.

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A notice of system of records for of DHS as well as the recipient agency. (f) From subsections (e)(4)(G), (H), and (I) Grievances, Appeals, and Disciplinary Disclosure of the accounting would therefore (Agency Requirements), and (f) (Agency Action is also published in this issue of present a serious impediment to law Rules) because portions of this system are the Federal Register. enforcement efforts and/or efforts to preserve exempt from the individual access provisions national security. Disclosure of the of subsection (d) for the reasons noted above, List of Subjects in 6 CFR Part 5 accounting would also permit the individual and therefore DHS is not required to establish who is the subject of a record to impede the requirements, rules, or procedures with Freedom of information; Privacy. investigation, to tamper with witnesses or respect to such access. Providing notice to For the reasons stated in the evidence, and to avoid detection or individuals with respect to existence of preamble, DHS proposes to amend apprehension, which would undermine the records pertaining to them in the system of Chapter I of Title 6, Code of Federal entire investigative process. records or otherwise setting up procedures Regulations, as follows: (b) From subsection (d) (Access to Records) pursuant to which individuals may access because access to the records contained in and view records pertaining to themselves in PART 5—DISCLOSURE OF RECORDS this system of records could inform the the system would undermine investigative AND INFORMATION subject of an investigation of an actual or efforts and reveal the identities of witnesses, potential criminal, civil, or regulatory and potential witnesses, and confidential 1. The authority citation for Part 5 violation, to the existence of the informants. continues to read as follows: investigation, and reveal investigative (g) From subsection (e)(5) (Collection of interest on the part of DHS or another agency. Information) because in the collection of Authority: Public Law 107–296, 116 Stat. Access to the records could permit the information for law enforcement purposes it 2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301. individual who is the subject of a record to is impossible to determine in advance what Subpart A also issued under 5 U.S.C. 552. impede the investigation, to tamper with information is accurate, relevant, timely, and Subpart B also issued under 5 U.S.C. 552a. witnesses or evidence, and to avoid detection complete. Compliance with (e)(5) would 2. In Appendix C to part 5, add a new or apprehension. Amendment of the records preclude DHS agents from using their could interfere with ongoing investigations investigative training and exercise of good paragraph 10 to the end of the Appendix and law enforcement activities and would to read as follows: judgment to both conduct and report on impose an impossible administrative burden investigations. Appendix C to Part 5—DHS Systems of by requiring investigations to be (h) From subsection (e)(8) (Notice on Records Exempt From the Privacy Act continuously reinvestigated. In addition, Individuals) because compliance would permitting access and amendment to such interfere with DHS’ ability to obtain, serve, * * * * * information could disclose security-sensitive and issue subpoenas, warrants, and other law 10. The Department of Homeland Security information that could be detrimental to enforcement mechanisms that may be filed Grievances, Appeals, and Disciplinary Action homeland security. under seal, and could result in disclosure of system of records consists of electronic and (c) From subsection (e)(1) (Relevancy and investigative techniques, procedures, and paper records and will be used by DHS and Necessity of Information) because in the evidence. its components. Grievances, Appeals, and course of investigations into potential (i) From subsection (g) to the extent that Disciplinary Action is a repository of violations of Federal law, the accuracy of the system is exempt from other specific information held by DHS in connection with information obtained or introduced subsections of the Privacy Act relating to its several and varied missions and functions, occasionally may be unclear or the individuals’ rights to access and amend their including, but not limited to: The information may not be strictly relevant or records contained in the system. Therefore enforcement of civil and criminal laws; necessary to a specific investigation. In the DHS is not required to establish rules or investigations, inquiries, and proceedings interests of effective law enforcement, it is procedures pursuant to which individuals there under; national security and appropriate to retain all information that may may seek a civil remedy for the agency’s: intelligence activities; and protection of the aid in establishing patterns of unlawful Refusal to amend a record; refusal to comply President of the United States or other activity. with a request for access to records; failure individuals pursuant to Section 3056 and (d) From subsection (e)(2) (Collection of to maintain accurate, relevant timely and 3056A of Title 18. Grievances, Appeals, and Information from Individuals) because complete records; or failure to otherwise Disciplinary Action contains information that requiring that information be collected from comply with an individual’s right to access is collected by, on behalf of, in support of, the subject of an investigation would alert the or amend records. or in cooperation with DHS and its subject to the nature or existence of an components and may contain personally investigation, thereby interfering with the Dated: October 7, 2008. identifiable information collected by other related investigation and law enforcement Hugo Teufel III, Federal, State, local, tribal, foreign, or activities. Chief Privacy Officer, Department of international government agencies. Pursuant (e) From subsection (e)(3) (Notice to Homeland Security. to exemption 5 U.S.C. 552a(j)(2) of the Subjects) because providing such detailed [FR Doc. E8–24805 Filed 10–17–08; 8:45 am] Privacy Act, portions of this system are information would impede law enforcement exempt from 5 U.S.C. 552a(c)(3) and (4); (d); in that it could compromise investigations BILLING CODE 4410–10–P (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), by: Revealing the existence of an otherwise (e)(4)(I), (e)(5) and (e)(8); (f), and (g). Pursuant confidential investigation and thereby to 5 U.S.C. 552a(k)(1), (2), (3), and (5), this provide an opportunity for the subject of an DEPARTMENT OF AGRICULTURE system is exempt from the following investigation to conceal evidence, alter provisions of the Privacy Act, subject to the patterns of behavior, or take other actions Agricultural Marketing Service limitations set forth in those subsections: 5 that could thwart investigative efforts; reveal U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), the identity of witnesses in investigations, 7 CFR Part 946 (e)(4)(H), (e)(4)(I), and (f). Exemptions from thereby providing an opportunity for the these particular subsections are justified, on subjects of the investigations or others to [Docket No. AMS–FV–08–0037; FV08–946– a case-by-case basis to be determined at the harass, intimidate, or otherwise interfere 2 PR] time a request is made, for the following with the collection of evidence or other reasons: information from such witnesses; or reveal Irish Potatoes Grown in Washington; (a) From subsection (c)(3) and (4) the identity of confidential informants, Modification of Late Payment and (Accounting for Disclosures) because release which would negatively affect the Interest Charge Regulation of the accounting of disclosures could alert informant’s usefulness in any ongoing or the subject of an investigation of an actual or future investigations and discourage AGENCY: Agricultural Marketing Service, potential criminal, civil, or regulatory members of the public from cooperating as USDA. violation to the existence of the investigation, confidential informants in any future ACTION: Proposed rule. and reveal investigative interest on the part investigations.

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SUMMARY: This rule invites comments 946), regulating the handling of Irish Committee’s needs and the costs for on a modification of the late payment potatoes grown in Washington, goods and services in their local area and interest charge regulation hereinafter referred to as the ‘‘order.’’ and are thus in a position to formulate prescribed under the Washington potato The order is effective under the an appropriate budget and assessment marketing order. The marketing order Agricultural Marketing Agreement Act rate. The assessment rate and the regulates the handling of Irish potatoes of 1937, as amended (7 U.S.C. 601–674), authority to recommend late payment grown in Washington, and is hereinafter referred to as the ‘‘Act.’’ charges or interest charges on late administered locally by the State of The Department of Agriculture payment, are formulated and discussed Washington Potato Committee (USDA) is issuing this rule in at a public meeting. Thus, all directly (Committee). This rule would revise the conformance with Executive Order affected persons have an opportunity to date interest is charged on late 12866. participate and provide input. assessment payments from 30 to 60 days This proposal has been reviewed Section 946.41 of the order specifies from the billing date shown on the under Executive Order 12988, Civil that if handlers do not pay their handler’s assessment statement received Justice Reform. This rule is not intended assessments within the time prescribed from the Committee. This rule would to have retroactive effect. This proposal by the Committee, the assessments may contribute to the efficient operation of will not preempt any State or local laws, be increased by a late payment charge the marketing order by reducing billing regulations, or policies, unless they or an interest charge, or both, at rates for nominal late payment interest present an irreconcilable conflict with prescribed by the Committee with charges on handlers who pay within 60 this rule. approval of USDA. days of the billing date, while The Act provides that administrative Section 946.141 of the order’s continuing those interest charges proceedings must be exhausted before administrative rules and regulations necessary to encourage payment, parties may file suit in court. Under prescribes that the Committee shall thereby ensuring that adequate funds section 608c(15)(A) of the Act, any impose a monthly interest charge of one are available to cover the Committee’s handler subject to an order may file percent of the unpaid balance on any authorized expenses. with USDA a petition stating that the handler who fails to pay his or her order, any provision of the order, or any assessment within 30 days of the billing DATES: Comments must be received by obligation imposed in connection with date. The interest charge regulation has November 4, 2008. the order is not in accordance with law been effective since May 25, 1995 (60 ADDRESSES: Interested persons are and request a modification of the order FR 27683). At that time, the Committee invited to submit written comments or to be exempted therefrom. A handler expressed difficulty with handlers that concerning this proposal. Comments is afforded the opportunity for a hearing were continually late with their must be sent to the Docket Clerk, on the petition. After the hearing, USDA assessment payments and recommended Marketing Order Administration would rule on the petition. The Act the interest charge to be incurred 30 Branch, Fruit and Vegetable Programs, provides that the district court of the days after the billing date. It was AMS, USDA, 1400 Independence United States in any district in which believed that the charges were high Avenue, SW., STOP 0237, Washington, the handler is an inhabitant, or has his enough to encourage timely payment DC 20250–0237; Fax: (202) 720–8938; or or her principal place of business, has and that this would be an effective Internet: http://www.regulations.gov. All jurisdiction to review USDA’s ruling on means to ensure the Committee had comments should reference the docket the petition, provided an action is filed adequate funds to administer the number and the date and page number not later than 20 days after the date of program. of this issue of the Federal Register and the entry of the ruling. The Committee unanimously will be made available for public This proposal invites comments on a recommended this rule during a video inspection in the Office of the Docket modification of the late payment and conference meeting held on April 16, Clerk during regular business hours, or interest charge regulation currently 2008, followed by unanimous mail vote. can be viewed at: http:// prescribed under the order. This rule The Committee has determined that www.regulations.gov. would revise the date interest is charged most handlers pay their assessments on late assessment payments from 30 to within 60 days but there are a few that FOR FURTHER INFORMATION CONTACT: 60 days from the billing date shown on pay later than 60 days. The interest Teresa Hutchinson or Gary Olson, the handler’s assessment statement billing that occurs 30 days after the Northwest Marketing Field Office, received from the Committee. This rule billing date has proven to be Marketing Order Administration would contribute to the efficient administratively cumbersome as the Branch, Fruit and Vegetable Programs, operation of the order by reducing the amounts billed are nominal amounts AMS, USDA, Telephone: (503) 326– number of nominal billings for late and many times the handler’s payment 2724, Fax: (503) 326–7440, or E-mail: payment interest charges on handlers is received shortly after the bill [email protected] or who pay within 60 days of the billing including interest is mailed. [email protected]. date, while continuing those interest As an example, the Committee’s Small businesses may request charges necessary to encourage budget for the current fiscal year (2008– information on complying with this payment, thereby ensuring that 2009) is $38,600 and estimated regulation by contacting Jay Guerber, adequate funds are available to cover assessment income is $35,000. Since Marketing Order Administration the Committee’s authorized expenses. there are approximately 43 handlers, the Branch, Fruit and Vegetable Programs, The Washington potato marketing average each handler will pay in AMS, USDA, 1400 Independence order provides authority for the assessments is approximately $814. Avenue, SW., STOP 0237, Washington, Committee, with the approval of USDA, Committee records indicate that for the DC 20250–0237; Telephone: (202) 720– to formulate an annual budget of most recent fiscal year, there were 316 2491, Fax: (202) 720–8938, or E-mail: expenses and collect assessments from invoices billed to handlers. The average [email protected]. handlers to administer the program. The amount on an invoice was $110.44, with SUPPLEMENTARY INFORMATION: This members of the Committee are a high of $626.54 and a low of $0.18. proposal is issued under Marketing producers and handlers of Washington Therefore, the interest amount owed on Order No. 946, as amended (7 CFR part potatoes. They are familiar with the a payment that is 30 days late, but not

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more than 60, would often be less than level fresh market crop value of greater or lesser for small entities than a dollar, rarely more than five dollars. $83,932,785. Dividing $83,933,785 by large entities. Most handlers pay their assessments 43 handlers gives an average annual The Committee discussed several with 60 days. Only a few pay later than sales value per handler estimate of alternatives to this recommendation, 60 days. The Committee believes that about $1,951,949. The Committee including not changing the date interest handlers that pay later than 60 days estimates that 41, or about 95 percent of charges would be imposed and would be considered a greater risk for these 43 handlers, had annual receipts suspending the entire section. However, nonpayment than handlers who pay of less than $6,500,000. the Committee believes that it is within 60 days. A comparable computation can be important that interest charges be The Committee recommended made to estimate annual average continued to encourage handlers to pay retaining § 946.141, but recommended revenue per producer. Based on assessments in a timely manner. modifying the regulation by providing information provided by the National Further, the additional 30 days should an additional 30 days for handlers to Agricultural Statistics Service, the 2006 allow adequate time to receive pay. Committee records show that the season average producer price for assessment payments by mail and allow great majority of handlers pay Washington potatoes was $6.25 per the Committee to reduce administrative assessments within 60 days of the hundredweight. Multiplying the 2006– costs. billing date. By waiting until 60 days 2007 fresh shipments of 9,932,874 This proposed rule would not impose past the billing date to charge interest hundredweight by the average producer any additional reporting or on late assessment payments, the price of $6.25 provides a producer-level recordkeeping requirements on either Committee would only have to charge fresh market crop value of $62,080,463. small or large potato handlers. As with interest to the few handlers who do not Dividing $62,080,463 by 267 all Federal marketing order programs, pay within 60 days. The Committee Washington potato producers yields an reports and forms are periodically believes the interest charge applied after average annual fresh market sales value reviewed to reduce information 60 days will continue to encourage per producer of approximately requirements and duplication by handlers to pay promptly. $232,511. industry and public sector agencies. In Initial Regulatory Flexibility Analysis In view of the foregoing, it can be addition, USDA has not identified any Pursuant to requirements set forth in concluded that the majority of the relevant Federal rules that duplicate, the Regulatory Flexibility Act (RFA), the Washington potato producers and overlap or conflict with this rule. Agricultural Marketing Service (AMS) handlers may be classified as small AMS is committed to complying with has considered the economic impact of entities. the E-Government Act, to promote the this action on small entities. This proposal would change the date use of the Internet and other Accordingly, AMS has prepared this interest is charged on late assessment information technologies to provide initial regulatory flexibility analysis. payments from 30 to 60 days past the increased opportunities for citizen The purpose of the RFA is to fit billing date. This rule would contribute access to Government information and regulatory actions to the scale of to the efficient operation of the services, and for other purposes. business subject to such actions in order marketing order by reducing billing for Further, the Committee’s meeting was that small businesses will not be unduly nominal late payment interest charges widely publicized throughout the or disproportionately burdened. on handlers who pay within 60 days of Washington potato industry and all Marketing orders issued pursuant to the the billing date, while continuing those interested persons were invited to Act, and rules issued thereunder, are interest charges necessary to encourage participate in Committee deliberations. unique in that they are brought about payment, thereby ensuring that Like all Committee meetings, the April through group action of essentially adequate funds are available to cover 16, 2008, meeting was a public meeting small entities acting on their own the Committee’s authorized expenses. and all entities, both large and small, behalf. The authority for late payment and were able to express views on this issue. Currently, there are approximately 43 interest charges is provided in § 946.41 Finally, interested persons are invited to handlers of Washington potatoes who of the order. Section 946.141 of the submit comments on this proposed rule, are subject to regulation under the order’s administrative rules and including the regulatory and marketing order and approximately 267 regulations prescribes the amount of informational impacts of this action on potato producers in the regulated area. interest charged and when interest small businesses. Small agricultural service firms are charges are imposed. A small business guide on complying defined by the Small Business This proposed change is expected to with fruit, vegetable, and specialty crop Administration (SBA) (13 CFR 121.201) reduce the cost to administer the order. marketing agreements and orders may as those having annual receipts of less Regarding the impact of this rule on be viewed at: http://www.ams.usda.gov/ than $6,500,000, and small agricultural affected entities, modification of the late AMSv1.0/ams.fetchTemplateData.do? producers are defined as those having payment and interest charge regulation template=TemplateN&page= annual receipts of less than $750,000. is expected to benefit handlers. Most MarketingOrdersSmallBusinessGuide. During the 2006–2007 marketing year, handlers pay their assessments within Any questions about the compliance 9,932,874 hundredweight of 60 days of the billing date. Only a few guide should be sent to Jay Guerber at Washington potatoes were inspected handlers pay later than 60 days. the previously mentioned address in the under the order and sold into the fresh Imposing the interest charge on late FOR FURTHER INFORMATION CONTACT market by 43 handlers, according to assessment payments at 60 days instead section. Committee data. The Committee reports of 30 days past due will allow the A 15-day comment period is provided that an industry consensus estimate of committee to operate more efficiently by to allow interested persons to respond an average fresh potato f.o.b. price is only billing after 60 days to handlers to this proposal. Fifteen days is deemed $8.45 per hundredweight. Multiplying whose late payments are considered appropriate because this rule relaxes the 2006–2007 fresh shipments of more serious and a greater risk. The requirements and would improve the 9,932,874 hundredweight by the average benefits of this proposal are not operation of the marketing order. All f.o.b. price of $8.45 yields a handler- expected to be disproportionately written comments timely received will

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be considered before a final pound carton of tomatoes handled. The Reform. Under the marketing order now determination is made on this matter. Committee locally administers the in effect, Florida tomato handlers are marketing order which regulates the subject to assessments. Funds to List of Subjects in 7 CFR Part 946 handling of tomatoes grown in Florida. administer the order are derived from Marketing agreements, Potatoes, Assessments upon tomato handlers are such assessments. It is intended that the Reporting and recordkeeping used by the Committee to fund assessment rate as proposed herein requirements. reasonable and necessary expenses of would be applicable to all assessable For the reasons set forth in the the program. The fiscal period begins tomatoes beginning on August 1, 2008, preamble, 7 CFR part 946 is proposed to August 1 and ends July 31. The and continue until amended, be amended as follows: assessment rate would remain in effect suspended, or terminated. This rule will indefinitely unless modified, not preempt any State or local laws, PART 946—IRISH POTATOES GROWN suspended, or terminated. regulations, or policies, unless they IN WASHINGTON DATES: Comments must be received by present an irreconcilable conflict with 1. The authority citation for 7 CFR November 19, 2008. this rule. The Act provides that administrative part 946 continues to read as follows: ADDRESSES: Interested persons are invited to submit written comments proceedings must be exhausted before Authority: 7 U.S.C. 601–674. concerning this rule. Comments must be parties may file suit in court. Under 2. Section 946.141 is revised to read sent to the Docket Clerk, Marketing section 608c(15)(A) of the Act, any as follows: Order Administration Branch, Fruit and handler subject to an order may file Vegetable Programs, AMS, USDA, 1400 with USDA a petition stating that the § 946.141 Late payment and interest order, any provision of the order, or any charge. Independence Avenue, SW., STOP 0237, Washington, DC 20250–0237; Fax: obligation imposed in connection with The Committee shall impose an (202) 720–8938; or Internet: http:// the order is not in accordance with law interest charge on any handler who fails www.regulations.gov. Comments should and request a modification of the order to pay his or her assessment within reference the docket number and the or to be exempted therefrom. Such sixty (60) days of the billing date shown date and page number of this issue of handler is afforded the opportunity for on the handler’s assessment statement the Federal Register and will be a hearing on the petition. After the received from the Committee. The available for public inspection in the hearing, USDA would rule on the interest charge shall, after 60 days, be Office of the Docket Clerk during regular petition. The Act provides that the one percent of the unpaid assessment business hours, or can be viewed at: district court of the United States in any balance. In the event the handler fails to http://www.regulations.gov. district in which the handler is an pay the delinquent assessment, the one inhabitant, or has his or her principal FOR FURTHER INFORMATION CONTACT: percent interest charge shall be applied place of business, has jurisdiction to William G. Pimental, Marketing monthly thereafter to the unpaid review USDA’s ruling on the petition, Specialist, or Christian D. Nissen, balance, including any accumulated provided an action is filed not later than Regional Manager, Southeast Marketing unpaid interest. Any amount paid by a 20 days after the date of the entry of the handler as an assessment, including any Field Office, Marketing Order ruling. charges imposed pursuant to this Administration Branch, Fruit and This rule would increase the paragraph, shall be credited when the Vegetable Programs, AMS, USDA; assessment rate established for the payment is received in the Committee Telephone: (863) 324–3375 Fax: (863) Committee for the 2008–09 and office. 325–8793, or E-mail: subsequent fiscal periods from $0.0325 [email protected] or Dated: October 15, 2008. to $0.0375 per 25-pound carton of [email protected]. tomatoes. Lloyd C. Day, Small businesses may request The Florida tomato marketing order Administrator, Agricultural Marketing information on complying with this provides authority for the Committee, Service. regulation by contacting Jay Guerber, with the approval of USDA, to formulate [FR Doc. E8–24918 Filed 10–17–08; 8:45 am] Marketing Order Administration an annual budget of expenses and BILLING CODE 3410–02–P Branch, Fruit and Vegetable Programs, collect assessments from handlers to AMS, USDA, 1400 Independence administer the program. The members Avenue, SW., STOP 0237, Washington, of the Committee are producers of DEPARTMENT OF AGRICULTURE DC 20250–0237; Telephone: (202) 720– Florida tomatoes. They are familiar with 2491, Fax: (202) 720–8938, or E-mail: Agricultural Marketing Service the Committee’s needs and with the [email protected]. costs for goods and services in their 7 CFR Part 966 SUPPLEMENTARY INFORMATION: This rule local area and are thus in a position to is issued under Marketing Agreement formulate an appropriate budget and [Docket No. AMS–FV–08–0081; FV08–966– No. 125 and Order No. 966, both as assessment rate. The assessment rate is 1 PR] amended (7 CFR part 966), regulating formulated and discussed in a public the handling of tomatoes grown in meeting. Thus, all directly affected Tomatoes Grown In Florida; Increased Florida, hereinafter referred to as the persons have an opportunity to Assessment Rate ‘‘order.’’ The order is effective under the participate and provide input. AGENCY: Agricultural Marketing Service, Agricultural Marketing Agreement Act For the 2007–08 and subsequent fiscal USDA. of 1937, as amended (7 U.S.C. 601–674), periods, the Committee recommended, ACTION: Proposed rule. hereinafter referred to as the ‘‘Act.’’ and USDA approved, an assessment rate The Department of Agriculture that would continue in effect from fiscal SUMMARY: This rule would increase the (USDA) is issuing this rule in period to fiscal period unless modified, assessment rate established for the conformance with Executive Order suspended, or terminated by USDA Florida Tomato Committee (Committee) 12866. upon recommendation and information for the 2008–09 and subsequent fiscal This rule has been reviewed under submitted by the Committee or other periods from $0.0325 to $0.0375 per 25- Executive Order 12988, Civil Justice information available to USDA.

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The Committee met on August 14, modification of the assessment rate is 2008–09 expenditures of $2,438,200 and 2008, and unanimously recommended needed. Further rulemaking would be an assessment rate of $0.0375 per 25- 2008–09 expenditures of $2,438,200 and undertaken as necessary. The pound carton. The proposed assessment an assessment rate of $0.0375 per 25- Committee’s 2008–09 budget and those rate of $0.0375 is $0.005 higher than the pound carton of tomatoes. In for subsequent fiscal periods would be 2007–08 rate. The quantity of assessable comparison, last year’s budgeted reviewed and, as appropriate, approved tomatoes for the 2008–09 season is expenditures were $2,101,000. The by USDA. estimated at 50 million 25-pound assessment rate of $0.0375 is $0.005 cartons. Thus, the $0.0375 rate should Initial Regulatory Flexibility Analysis higher than the rate currently in effect. provide $1,875,000 in assessments. The assessment increase is needed to Pursuant to requirements set forth in Income derived from handler offset the 2008–09 increase in education the Regulatory Flexibility Act (RFA), the assessments, along with interest income and promotion expenses, salaries, and Agricultural Marketing Service (AMS) and funds from the Committee’s employee retirement. Without the has considered the economic impact of authorized reserve, and other income, increase in the assessment rate, the this rule on small entities. Accordingly, would be adequate to cover budgeted Committee would need to utilize an AMS has prepared this initial regulatory expenses. additional $250,000 from the authorized flexibility analysis. The major expenditures reserve. Therefore, the Committee voted The purpose of the RFA is to fit recommended by the Committee for the to increase the assessment rate. regulatory actions to the scale of 2008–09 year include $1,200,000 for The major expenditures business subject to such actions in order education and promotion, $505,500 for recommended by the Committee for the that small businesses will not be unduly salaries, $320,000 for research, and 2008–09 year include $1,200,000 for or disproportionately burdened. $77,000 for employee retirement. education and promotion, $505,500 for Marketing orders issued pursuant to the Budgeted expenses for these items in salaries, $320,000 for research, and Act, and the rules issued thereunder, are 2007–08 were $900,000, $467,000, $77,000 for employee retirement. unique in that they are brought about $320,000, and $71,000, respectively. Budgeted expenses for these items in through group action of essentially The assessment increase is needed to 2007–08 were $900,000, $467,000, small entities acting on their own offset the 2008–09 increase in education $320,000, and $71,000, respectively. behalf. and promotion expenses, salaries, and The assessment rate recommended by There are approximately 100 employee retirement. Without the the Committee was derived by dividing producers of tomatoes in the production increase in the assessment rate, the anticipated expenses, less anticipated area and approximately 70 handlers Committee would need to utilize an funds from the USDA Market Access subject to regulation under the additional $250,000 from the authorized Program (MAP), by expected shipments marketing order. Small agricultural reserve. Therefore, the Committee voted of Florida tomatoes. Tomato shipments producers are defined by the Small to increase the assessment rate. for the year are estimated at 50 million Business Administration (SBA) as those The Committee reviewed and 25-pound cartons and should provide having annual receipts less than unanimously recommended 2008–09 $1,875,000 in assessment income. $750,000, and small agricultural service expenditures of $2,438,200, which Income derived from handler firms are defined as those whose annual included increases in education and assessments, along with interest income, receipts are less than $6,500,000 (13 promotion, salaries, and employee MAP funds, and funds from the CFR 121.201). retirement. Prior to arriving at this Committee’s authorized reserve, would Based on industry and Committee budget, the Committee considered be adequate to cover budgeted expenses. data, the average annual price for fresh information from various sources, such Funds in the reserve (currently Florida tomatoes during the 2007–08 as the Committee’s Executive approximately $593,000) would be kept season was approximately $13.71 per Subcommittee, Finance Subcommittee, within the maximum permitted by the 25-pound container, and total fresh Research Subcommittee, and Education order of not to exceed one fiscal period’s shipments for the 2007–08 season were and Promotion Subcommittee. expenses as stated in § 966.44 of the 45,177,457 25-pound cartons of Alternative expenditure levels were order. tomatoes. Committee data indicates that discussed by these groups based upon The proposed assessment rate would approximately 25 percent of the the relative value of various education continue in effect indefinitely unless handlers handle 94 percent of the total and promotion projects to the tomato modified, suspended, or terminated by volume shipped outside the regulated industry. The assessment rate of $0.0375 USDA upon recommendation and area. Based on the average price, about per 25-pound container of assessable information submitted by the 75 percent of handlers could be tomatoes was determined by examining Committee or other available considered small businesses under the anticipated expenses, expected information. SBA’s definition. In addition, based on shipments, MAP funds, and available Although this assessment rate would production data, grower prices as reserves. The recommended assessment be in effect for an indefinite period, the reported by the National Agricultural rate would generate $1,875,000 in Committee would continue to meet Statistics Service, and the total number income. Considering income from prior to or during each fiscal period to of Florida tomato growers, the average assessments, interest, and other sources, recommend a budget of expenses and annual grower revenue is below total income would be approximately consider recommendations for $750,000. Thus, the majority of handlers $27,000 below the anticipated expenses, modification of the assessment rate. The and producers of Florida tomatoes may which the Committee determined to be dates and times of Committee meetings be classified as small entities. acceptable. are available from the Committee or This rule would increase the A review of historical information and USDA. Committee meetings are open to assessment rate established for the preliminary information pertaining to the public and interested persons may Committee and collected from handlers the 2008–09 fiscal period indicates that express their views at these meetings. for the 2008–09 and subsequent fiscal the grower price for the 2008–09 season USDA would evaluate Committee periods from $0.0325 to $0.0375 per 25- could range between $7.98 and $12.95 recommendations and other available pound carton of tomatoes. The per 25-pound carton of tomatoes. information to determine whether Committee unanimously recommended Therefore, the estimated assessment

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revenue for the 2008–09 season as a period; (2) the Committee needs to have DATES: The docket for the petition for percentage of total grower revenue sufficient funds to pay its expenses rulemaking, PRM–50–88, is closed on could range between 0.3 and 0.5 which are incurred on a continuous October 20, 2008. percent. basis; and (3) handlers are aware of this ADDRESSES: You can access publicly This action would increase the action which was unanimously available documents related to this assessment obligation imposed on recommended by the Committee at a petition for rulemaking using the handlers. While assessments impose public meeting and is similar to other following methods: some additional costs on handlers, the assessment rate actions issued in past Federal e-Rulemaking Portal: Further costs are minimal and uniform on all years. NRC action on the issues raised by this handlers. Some of the additional costs List of Subjects in 7 CFR Part 966 petition will be accessible at the Federal may be passed on to producers. rulemaking portal, http:// However, these costs would be offset by Marketing agreements, Reporting and www.regulations.gov, by searching on the benefits derived by the operation of recordkeeping requirements, Tomatoes. rulemaking docket ID: NRC–2007–0017. the marketing order. In addition, the For the reasons set forth in the Address questions about NRC dockets to Committee’s meeting was widely preamble, 7 CFR part 966 is proposed to Carol Gallagher 301–415–5905; e-mail publicized throughout the Florida be amended as follows: [email protected]. The NRC also tomato industry and all interested tracks all rulemaking actions in the persons were invited to attend the PART 966—TOMATOES GROWN IN FLORIDA ‘‘NRC Regulatory Agenda: Semiannual meeting and participate in Committee Report (NUREG–0936).’’ deliberations on all issues. Like all 1. The authority citation for 7 CFR NRC’s Public Document Room (PDR): Committee meetings, the August 14, part 966 continues to read as follows: The public may examine, and have 2008, meeting was a public meeting and Authority: 7 U.S.C. 601–674. copied for a fee, publicly available all entities, both large and small, were documents at the NRC’s PDR, Public able to express views on this issue. 2. Section 966.234 is revised to read File Area O–1 F21, One White Flint Finally, interested persons are invited to as follows: North, 11555 Rockville Pike, Rockville, submit comments on this proposed rule, Maryland. including the regulatory and § 966.234 Assessment rate. On and after August 1, 2008, an NRC’s Agencywide Document Access informational impacts of this action on and Management System (ADAMS): small businesses. assessment rate of $0.0375 per 25-pound carton is established for Florida Publicly available documents created or This proposed rule would impose no received at the NRC are available additional reporting or recordkeeping tomatoes. electronically at the NRC’s Electronic requirements on either small or large Dated: October 15, 2008. Reading Room at http://www.nrc.gov/ Florida tomato handlers. As with all Lloyd C. Day, reading-rm/adams.html. From this page, Federal marketing order programs, Administrator, Agricultural Marketing the public can gain entry into ADAMS, reports and forms are periodically Service. which provides text and image files of reviewed to reduce information [FR Doc. E8–24919 Filed 10–17–08; 8:45 am] NRC’s public documents. If you do not requirements and duplication by BILLING CODE 3410–02–P have access to ADAMS or if there are industry and public sector agencies. AMS is committed to complying with any problems in accessing the the E-Government Act, to promote the documents located in ADAMS, contact NUCLEAR REGULATORY the NRC PDR reference staff at 1–800– use of the Internet and other COMMISSION information technologies to provide 387–4209 or 301–415–4737, or by e-mail to [email protected]. increased opportunities for citizen 10 CFR Part 50 access to Government information and FOR FURTHER INFORMATION CONTACT: services, and for other purposes. [Docket No. PRM–50–88; NRC–2007–0017] Harry S. Tovmassian, Office of Nuclear USDA has not identified any relevant Reactor Regulation, NRC, Washington, Thomas E. Magette on Behalf of Federal rules that duplicate, overlap, or DC 20555–0001, telephone 301–415– EnergySolutions, LLC; Notice of Denial conflict with this rule. 3092, e-mail [email protected], A small business guide on complying of Petition for Rulemaking or Steven R. Hom, Office of Nuclear with fruit, vegetable, and specialty crop AGENCY: Nuclear Regulatory Reactor Regulation, NRC, Washington, marketing agreements and orders may Commission. DC 20555–0001, telephone 301–415– be viewed at: http://www.ams.usda.gov/ ACTION: Petition for rulemaking; Denial. 1537, e-mail [email protected]. AMSv1.0/ams.fetchTemplateData.do? SUPPLEMENTARY INFORMATION: template=TemplateN&page= SUMMARY: The Nuclear Regulatory MarketingOrdersSmallBusinessGuide. Commission (NRC) is denying a petition The Petition Any questions about the compliance for rulemaking submitted by Mr. On May 29, 2007, the NRC received guide should be sent to Jay Guerber at Thomas E. Magette on behalf of a petition for rulemaking filed by Mr. the previously mentioned address in the EnergySolutions, LLC. The petitioner Thomas E. Magette on behalf of FOR FURTHER INFORMATION CONTACT requested that the NRC’s regulations EnergySolutions, LLC. The petitioner section. governing domestic licensing of requested that the NRC amend its A 30-day comment period is provided production and utilization facilities be regulations to provide a regulatory to allow interested persons to respond amended to provide a regulatory framework that would allow funds from to this proposed rule. Thirty days is framework that would allow funds from licensees’ decommissioning trust funds deemed appropriate because: (1) The licensees’ decommissioning trust funds to be used for the cost of disposal of 2008–09 fiscal period began on August to be used for the cost of disposal of MRCs that have been removed from 1, 2008, and the marketing order ‘‘major radioactive components’’ (MRCs) reactors before the permanent cessation requires that the rate of assessment for that have been removed from reactors of operations. On August 21, 2007 [72 each fiscal period apply to all assessable before the permanent cessation of FR 46569], the NRC published a notice tomatoes handled during such fiscal operations. of receipt of the petition for rulemaking

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and requested public comment. The CFR 50.2, under this provision the time of license expiration, or if a petitioner stated that this rulemaking is disbursements from a trust could not be plant unexpectedly shuts down early needed because current regulations used before the start of and generates no further operating define decommissioning in 10 CFR 50.2 decommissioning to dispose of large revenues. as not beginning until the site or facility components that had been replaced at With regard to the fifth asserted ceases operation, and 10 CFR 50.82(a)(8) an operating plant. The amendments to benefit, the petitioner essentially argues only allows withdrawals from the regulation became final at the end of that more funds would be available to decommissioning trust funds for 2002. decommission the reactor upon decommissioning expenses. The permanent shutdown because Discussion petitioner asserted that he believes that investment returns on a trust fund will such a regulatory framework is in the The EnergySolutions petition raises be less than the inflation of disposal public interest. the following issue: Should the NRC costs; thus, licensees should spend undertake a rulemaking that is funds now. This argument conflicts Background inconsistent with current Commission with the basis of the NRC’s regulations On February 3, 1994 [59 FR 5216], the policies and regulations on the use of at 10 CFR 50.75 that permit licensees to NRC published in the Federal Register decommissioning trust funds before assume a 2 percent real rate of return a draft policy statement containing, decommissioning? earnings credit on decommissioning among other things, criteria the NRC When the NRC articulated its policy trust fund balances, which about 75 proposed to follow to respond to against the use of decommissioning percent of plants use to meet minimum requests by licensees with permanently trust funds for the disposal of MRCs decommissioning funding assurance shut down plants to withdraw during operations, it did not suggest that requirements. Allowing licensees to decommissioning trust funds before MRCs should not, or could not be assume a 2 percent real rate of return approval of a decommissioning plan disposed of during operations using presumes that over time, trust fund submitted under 10 CFR 50.82. On July other sources of funding. In fact, the earnings after taxes will exceed the 20, 1995 [60 FR 37374], the NRC NRC considered this possibility, and inflation of decommissioning costs, published proposed amendments to the stated that these disposals are which include disposal costs, by a net regulations that address considered operating activities and 2 percent. To accept the petition’s decommissioning and license should be financed as such. argument would require the NRC to termination, incorporating the criteria The EnergySolutions petition claims accept the argument’s premise that from the draft policy statement. The that a change in the NRC’s policy and investment returns would not keep up NRC addressed comments that were regulations would yield the following with inflation. If this were the case, the received on the draft policy statement benefits: (1) The radioactive source term NRC would need to rescind or at least and proposed rules in the statement of associated with the contaminated scale back the regulatory earnings credit considerations for the final rule [61 FR components at reactor sites will be (lacking the original basis), for which 39293; July 29, 1996]. One of the reduced; (2) Site workers will be there is no basis at this time. comments (by the Nuclear Energy exposed to less radiation; (3) Costs to The petitioner raised several other Institute, joined by two licensees) was store the MRCs and to provide observations in support of the proposed that the NRC should develop a policy protection to workers can be avoided; rulemaking. First, the petition states that for operating plants on withdrawing (4) The overall costs to decommission a ‘‘blanket prohibition on the use of decommissioning funds, and ‘‘should will be reduced (because the disposal of decommissioning trust funds to dispose allow licensees to withdraw at least some MRCs will have already of [MRCs] is unnecessary to achieve the decommissioning trust funds to dispose been completed); and (5) More funds underlying purpose of the rule.’’ The of structures and equipment no longer will be available to decommission upon NRC has never issued a blanket being used for operating plants.’’ The permanent cessation of operations. prohibition against seeking an NRC responded as follows: ‘‘The NRC While the first four benefits asserted exemption from the provisions of 10 has concluded that allowing by the petitioner may result from the CFR 50.75 or 50.82. However, the NRC decommissioning trust fund disposal of MRCs, these benefits do not views decommissioning funding withdrawals for disposals by nuclear depend upon the origin of the funds assurance policies and rules as of the power plants that continue to operate is used to pay for such disposal (and the utmost importance in ensuring that not warranted. These activities are more petition makes no such assertion). In there will be sufficient funds to appropriately considered operating other words, the same benefits could be decommission a reactor upon activities and should be financed in that achieved if licensees disposed of MRCs permanent cessation of operations. way.’’ using operating revenues, special public Accordingly, the NRC expects that there On May 30, 2001 [66 FR 29244], the utility commission collections from would have to be extraordinary NRC published proposed amendments ratepayers, or any other sources of funds circumstances before any exemption to 10 CFR 50.75 relating to increased other than decommissioning trust funds. request to withdraw funds early would oversight by the NRC of The petition does not contain evidence be granted, particularly if there is no decommissioning trusts before that a reversal of NRC policy and demonstration that there are no other decommissioning. One of the proposed regulations, designed to protect sources of funds available to licensees to changes to the rule required that trust decommissioning trust funds so that dispose of MRCs while a plant is agreements must contain a provision they will be available to complete operating. that disbursements from a trust are decommissioning, would ensure that all Second, the petitioner states that restricted to ordinary administrative MRCs will in fact be immediately granting the petition would avoid a expenses, decommissioning expenses, disposed of offsite by all plants, thus conflict with the NRC’s ‘‘philosophy’’ or transfer to another decommissioning eliminating the petition’s stated underlying other rules governing funding assurance method until final concerns. On the contrary, a reversal materials sites to remove source terms decommissioning has been completed. could be expected to increase the from unused portions of operating Because these changes would not meet likelihood that a shortage of materials sites. Thus, the NRC should the definition of decommissioning in 10 decommissioning funds may occur at not ‘‘create economic barriers’’ to

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prevent reactor licensees from disposing purportedly take up limited space. The ‘‘unnecessary regulatory burdens’’ is not of MRCs during operations. While the petition notes that ‘‘in many cases compelling. petition’s assertion that ‘‘experience licensees commingle’’ radiological Notwithstanding the arguments with non-reactor decommissioning sites decommissioning funds with other contained in the petition, the NRC indicates that clean-up costs can funds, and states that preventing the use believes that existing policy and rules escalate significantly when unmanaged of the funds ‘‘solely because they are continue to be sound. However, the contamination is left on-site for long commingled creates an unnecessary NRC takes this opportunity to note that periods of time’’ may be valid, the regulatory burden as it does not have a it has been and will continue to petition deals with reactor sites and corresponding safety benefit if the entertain very limited exceptions, as MRCs that are of a different nature than licensee has sufficient funds in its appropriate. Under 10 CFR 50.12, a many materials that may be able to decommissioning trust funds to meet licensee can request an exemption from migrate into the ground if the provisions of’’ 10 CFR 10 CFR 50.82(a)(8) to use ‘‘unmanaged.’’ The petition 50.82(a)(8)(i)(B) and (C). As discussed decommissioning trust funds to dispose acknowledges that current Commission earlier, determining whether a licensee of MRCs before decommissioning, regulations and policy allow the has sufficient funds to meet those which the NRC will review on a case- SAFSTOR option for reactors (i.e., the provisions of 10 CFR 50.82, which are by-case basis in extraordinary facility is maintained and monitored to proposed by the petition to be the circumstances. The NRC believes there would be no allow decay of radioactivity, after which criteria to judge whether practical difference between the it is decommissioned), and that ‘‘reactor decommissioning funds should be showings necessary under an exemption licensees are not subject to’’ the same released, becomes much more rules governing materials licensees. request and those showings that would speculative the further from permanent be necessary under the petition’s Thus, any ‘‘conflict’’ with a so-called shutdown a plant is. Whatever test philosophy that may apply to a different proposed rule. Exemptions are decided might be used to gauge whether on a case-by-case basis. Under the rule category of licensees because they have disbursements from a decommissioning characteristics distinguishable from proposed by the petition, the NRC trust should be allowed, the issue would would also have to make decisions reactor licensees warrants limited not be before the NRC if licensees who consideration here, particularly when whether to approve withdrawals on a desired to withdraw funds for MRC licensees are free to use non- case-by-case basis. In both situations, disposal had sub-accounts or decommissioning trust funds to dispose the NRC would have to factor in, among established specific accounting that of MRCs. other things, site specific costs, Third, the petitioner states that the certain funds were earmarked for such individual trust balances and the proposed amendment to 10 CFR 50.82 purpose and were not relied upon to prospect of future contributions, market does not depend on the adequacy of the meet decommissioning funding and cost fluctuations, years left to minimum formula amount calculated assurance regulations. In connection operate, and any other considerations under 10 CFR 50.75. The petition states with the 2002 final rule amending 10 that might bear on the likelihood of a that the NRC’s Inspector General and CFR 50.75 regarding decommissioning licensee being able to make up shortfalls the Government Accountability Office trust provisions (which, among other in assured decommissioning funds, have raised questions concerning the things, confirmed the limitations on the such as operational issues that could sufficiency of formula decommissioning use of decommissioning trust funds), affect anticipated revenues. Because the cost estimates and funding assurance the Commission stated that NRC does not believe there would be based on them. These questions, commingling of trust funds is not significant processing distinctions according to the petition, should not objectionable ‘‘as long as the licensees between the existing exemption regime affect consideration of the proposed are able to provide a separate and the petition’s, there is no processing amendment because the proposal would accounting showing the amount of advantage weighing in favor of the require site-specific, rather than funds earmarked’’ for other uses not rulemaking proposed by the petition. subsumed under the NRC’s definition of formula, cost estimates for the staff’s Public Comments analysis of a withdrawal request. decommissioning, [See 67 FR 78339; However, even site-specific estimates December 24, 2002]. The notion of The notice of receipt of the petition become inherently more unreliable the licensees establishing sub-accounts for rulemaking invited interested further they are done from permanent ‘‘that clearly delineate the purpose of persons to submit their comments. Six shutdown. (The earliest a licensee must the sub-account’’ was discussed as early public comments were filed in response perform any type of site-specific as 1996 in an advance notice of to the petition within the public decommissioning cost estimate under proposed rulemaking [See 61 FR 15427, comment period. Licensees submitted current NRC regulations is five years footnote 2; April 8, 1996]. If minimum four comments, the Nuclear Energy from permanent shutdown.) Therefore, required amounts are maintained for Institute submitted one comment, and cost estimate reliability issues are not radiological decommissioning, sub- Talisman International, LLC, which rendered moot simply because the accounts for other activities are not employs one or more individuals who proposal would require an analysis prohibited by the NRC, [See 61 FR represent EnergySolutions, submitted based on a site-specific cost estimate 39285; July 29, 1996]. Thus, licensees one comment. All of the comments were versus a formula cost estimate. have had full notice that sub-accounts supportive of the petition. On June 20, Fourth, the petition states that for the disposal of MRCs during 2008, a seventh public comment was granting the petition would prevent operations could be established as long received from Mr. Barry T. Smitherman, unnecessary regulatory burdens. The as decommissioning funding assurance Chairman, Public Utility Commission of petition blames the current policy requirements are met. In view of the Texas, commenting on his own behalf. restricting the use of decommissioning foregoing, the NRC believes that Although this comment was received trust funds for causing some licensees to licensees have had alternatives to after the close of the public comment spend funds to build storage structures address funding the disposal of MRCs period, the NRC reviewed the letter and to house MRCs, maintain them, and during operations, and that the finds that it raises no issues that have monitor releases. Also, these structures argument that current policy poses not been previously considered by the

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Commission and that no further in higher costs and less funds available NRC Response: The requirement that resolution is called for. at decommissioning. licensees provide copies of withdrawal 1. Comment: One commenter stated NRC Response: As discussed before, requests to rate regulators would be of that the proposed rule change would the NRC’s rules are based on an value if these regulators actually provide ‘‘reactor licensees the needed assumption that investment earnings provided their views, particularly flexibility’’ to use decommissioning from decommissioning trust funds left because they, and not the NRC, are trust funds to dispose of MRCs. Another intact will surpass the inflation of principally responsible for economic commenter stated that the needed decommissioning costs in the long run. matters affecting licensees. flexibility would provide a framework Licensees may use other funds to 9. Comment: A commenter stated that ‘‘that would allow the NRC on a case- dispose of MRCs if they believe current current regulations do not consider that by-case basis to authorize the use of disposal costs warrant and there will be MRCs would need to be replaced during [decommissioning trust funds] for the insufficient decommissioning funds operations and do not address the disposal of MRCs prior to the cessation available at decommissioning. significant burden on licensees to store of reactor operations * * *.’’ 5. Comment: One commenter stated MRCs until decommissioning. NRC Response: The NRC already has that one of the reasons that disposing of NRC Response: The 1996 statement of a framework in place at 10 CFR 50.12 these components is in the interest of considerations [61 FR 39293; July 29, to permit, on a case-by-case basis, some his ‘‘Company, its customers, and the 1996], discussing a comment that the limited flexibility regarding the use of public’’ is that the source term for the NRC ‘‘should allow licensees to decommissioning trust funds to dispose site would be reduced. withdraw decommissioning trust funds of MRCs during operations. NRC Response: Any reduction in the to dispose of structures and equipment 2. Comment: A commenter opined source term due to the removal of no longer being used for operating that the current rule [10 CFR 50.82] MRC’s would not depend upon the plants,’’ cited by the petition itself, clearly demonstrates that the poses an unreasonable burden not origin of the funds used to accomplish Commission was aware that some MRCs accompanied by any benefit. The the removal. This argument does not would need to be replaced during financial burden to construct and support the petition’s proposal for NRC operations. Whether current regulations maintain storage facilities to house to amend its regulations. address the purported ‘‘significant MRCs until the cessation of operations 6. Comment: One commenter stated burden on licensees to store MRCs’’ is could be avoided according to a that licensees take all measures of no bearing, because regulations do commenter. necessary to protect public health and not require such storage, and licensees NRC Response: There is a significant safety and the environment and will have never asserted that they are benefit to restricting the use of continue to do so, notwithstanding financially incapable of disposing of decommissioning trust funds for MRC leaving MRCs onsite. MRCs during operations without disposals, namely to ensure that there NRC Response: This comment was withdrawing decommissioning trust are enough funds to decommission a made in response to the petition’s funds. reactor shut down permanently either at assertion that leaving MRCs onsite ‘‘can 10. Comment: One commenter stated the end of its licensed life or any time give rise to adverse environmental that licensees with at least 20 years before that date for reasons unforeseen impacts if not properly managed.’’ The remaining on their licenses should be today. Furthermore, there are sources of NRC has not found that storing MRCs able to use decommissioning trust funds funds other than decommissioning trust onsite creates a health and safety issue for the disposal of MRCs before funds to dispose of MRCs. Any burdens that can only be resolved by the decommissioning (without specific NRC from constructing and maintaining immediate removal of MRCs. If it does approval) upon providing notice to the storage facilities can be avoided at the create a health and safety issue, the NRC with a copy to the rate regulator licensee’s option by using operating Commission will address this issue and providing an estimate of the costs funds to dispose of MRCs, or for directly, rather than by reversing for the disposal. The commenter regulated licensees by using financial policy that may or may not asserted that there will be ample time to assessments properly accounted for result in the actual disposal of MRCs. accumulate funds and early disposal from rate regulators who approve the 7. Comment: Some commenters cited will allow more funds to be available in use of ratepayer funds to dispose of the burden placed on licensees to the future. MRCs. develop and submit exemption requests, NRC Response: This ‘‘comment’’ is 3. Comment: One commenter stated and on the NRC staff to process them as actually a proposal that goes beyond the that granting the petitioner’s proposal problematic. They believe that the proposal made by the petition. The key would facilitate the disposal of MRCs. proposal provides a standardized feature is that no NRC approval would NRC Response: Nothing in the NRC’s approach which presumably would be be required. A major necessary regulations prohibits licensees from less burdensome. assumption underlying the comment is disposing of MRC’s before the cessation NRC Response: The NRC would not that any plant with at least 20 years left of operations using non- anticipate any reduction in burden on to operate would continue to do so decommissioning funds. These non- licensees or the staff under the notwithstanding the possibility of a decommissioning funds would facilitate petitioner’s proposal. Any request to crippling accident or adverse economic the disposal of MRCs similar to the use withdraw funds, whether under 10 CFR conditions, and continue to be able to of decommissioning trust funds, but 50.12 or 10 CFR 50.82 as proposed to be accumulate funds. This comment is without creating the additional risk that amended, would have to be submitted outside the scope of the petition’s reduced decommissioning trust funds and decided on a case-by-case basis and proposal, and therefore is accorded no will be insufficient. would not be susceptible to generic further consideration. 4. Comment: One commenter stated processing. that the removal of MRCs before 8. Comment: A commenter stated that Reason for Denial decommissioning is cost-effective, the petition, if granted, would provide The NRC concludes that the delaying the use of decommissioning an opportunity to obtain rate regulator arguments made by the petitioner and funds or delaying disposal could result views. the commenters are not sufficiently

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persuasive to support the proposed made no final decision on the issues 2002) (‘‘BCRA’’), increased certain rulemaking. The NRC’s policy on not presented in this rulemaking. Further contribution limits and coordinated using decommissioning trust funds for information is provided in the party expenditure limits for Senate and the early disposal of MRCs during supplementary information that follows. House of Representatives candidates operations is prudent and necessary DATES: Comments must be received on facing opponents who spent significant generically to preserve and protect such or before November 21, 2008. amounts of personal funds. When a self- funds. Other sources of funds can be ADDRESSES: All comments must be in financed opponent spent personal funds used to dispose of MRCs during writing, must be addressed to Mr. above a certain threshold amount, the operations. Furthermore, under 10 CFR Robert M. Knop, Assistant General Millionaires’ Amendment permitted a 50.12, licensees may request an Counsel, and must be submitted in candidate to accept individual exemption to permit withdrawal of either e-mail, facsimile, or paper copy contributions under increased decommissioning trust funds to dispose form. Commenters are strongly contribution limits. 2 U.S.C. 441a(i) and of MRC’s, which will be reviewed on a encouraged to submit comments by e- 441a–1(a). When certain other threshold case-by-case basis in extraordinary mail to ensure timely receipt and amounts were reached, the Millionaires’ circumstances. Therefore, the consideration. E-mail comments must Amendment also allowed national and Commission denies PRM–50–88 filed by be sent to [email protected]. If state political party committees to make unlimited coordinated party EnergySolutions. e-mail comments include an expenditures on behalf of the candidate For the Nuclear Regulatory Commission. attachment, the attachment must be in in the general election. Id. Dated at Rockville, Maryland, this 3rd day either Adobe Acrobat (.pdf) or Microsoft On December 19, 2002, the of October, 2008. Word (.doc) format. Faxed comments Commission approved interim final Bruce S. Mallett, must be sent to (202) 219–3923, with rules to implement the Millionaires’ Acting Executive Director for Operations. paper copy follow-up. Paper comments Amendment. See Interim Final Rules on [FR Doc. E8–24897 Filed 10–17–08; 8:45 am] and paper copy follow-up of faxed Increased Contribution and Coordinated comments must be sent to the Federal BILLING CODE 7590–01–P Party Expenditure Limits for Candidates Election Commission, 999 E Street, Opposing Self-Financed Candidates, 68 NW., Washington, DC 20463. All FR 3970 (Jan. 27, 2003) (‘‘Interim Final FEDERAL ELECTION COMMISSION comments must include the full name Rules’’). The Commission sought public and postal service address of the comments on the Interim Final Rules, as 11 CFR Parts 100, 101, 102, 104, 110, commenter or they will not be well as on specific issues discussed in 113, 400, 9001, 9003, 9031, and 9033 considered. The Commission will post the Explanation and Justification. No comments on its Web site after the [Notice 2008–11] comments were received. These Interim comment period ends. Final Rules were in effect during the Increased Contribution and FOR FURTHER INFORMATION CONTACT: Mr. 2004 and 2006 election cycles, and the Coordinated Party Expenditure Limits Robert M. Knop, Assistant General beginning of the 2008 election cycle. for Candidates Opposing Self-financed Counsel, or Mr. Neven F. Stipanovic, On June 26, 2008, the Supreme Court Candidates Attorney, 999 E Street, NW., invalidated the Millionaires’ Washington, DC 20463, (202) 694–1650 Amendment. In Davis, the Supreme AGENCY: Federal Election Commission. or (800) 424–9530. Court reviewed a challenge by a self- ACTION: Notice of proposed rulemaking. SUPPLEMENTARY INFORMATION: The financed candidate who triggered the Commission seeks to revise its current Millionaires’ Amendment in the 2004 SUMMARY: The Federal Election regulations to reflect the Supreme and 2006 elections for the House of Commission (‘‘Commission’’) requests Court’s decision in Davis v. Federal Representatives. The Supreme Court comments on the proposed deletion of Election Commission, 554 U.S.___, 128 held that the House of Representatives its rules regarding increased S. Ct. 2759 (2008) that invalidated the provision of the Millionaires’ contribution limits and coordinated Millionaires’ Amendment. The Amendment was unconstitutional party expenditure limits for Senate and Commission proposes to delete its because it violated the plaintiff’s First House of Representatives candidates current rules at 11 CFR 100.19(g), Amendment rights. 128 S.Ct. at 2775. facing self-financed opponents. These 104.19, 110.5(b)(2), and Part 400. It The Supreme Court invalidated the rules were promulgated to implement proposes to retain and revise its current entire BCRA section 319 relating to sections 304 and 319 of the Bipartisan rules at 11 CFR 100.33, 100.153, 101.1, House elections, including the increased Campaign Reform Act of 2002, known 102.2(a)(1)(viii), 113.1(g)(6)(ii), 9001.1, contribution limits in 319(a) and its as the ‘‘Millionaires’ Amendment.’’ In 9003.1(b)(8), 9031.1, and 9033.1(b)(10). companion disclosure requirements in Davis v. Federal Election Commission, It proposes to retain unchanged its 319(b). The Court reasoned that the the Supreme Court held that sections current rules at 11 CFR Millionaires’ Amendment imposed a 319(a) and (b), regarding House of 110.1(b)(3)(ii)(C), 116.11, 116.12, and substantial burden on the plaintiff’s Representatives elections, were 9035.2(c). exercise of his First Amendment right to unconstitutional. The Court’s holding use personal funds for campaign speech, also applies to the contribution and I. Background and that the burden was not justified by spending limits in section 304 regarding The Millionaires’ Amendment 1 of the any governmental interest in Senate elections. The Commission, Bipartisan Campaign Reform Act of eliminating corruption or the perception therefore, proposes to remove its current 2002, Public Law 107–155, (March 27, of corruption. 128 S.Ct. at 2772–73. rules that implement the Millionaires’ On July 25, 2008, the Commission Amendment. In addition, the 1 Section 304 of BCRA added a new paragraph (i) issued a Public Statement that, in light Commission proposes to retain certain to 2 U.S.C. 441a, which addressed Senate elections. of the Davis decision, it would no longer other rules that generally are applicable Section 319 of BCRA added a new section 441a– enforce the Millionaires’ Amendment. 1 to the Act, which addressed elections for the throughout the Federal Election House Representatives. The Senate provisions also See Press Release, Public Statement on Campaign Act of 1971, as amended (the added new notification and reporting requirements the Supreme Court’s Decision in Davis ‘‘Act’’ or ‘‘FECA’’). The Commission has in 2 U.S.C. 434. v. FEC, July 25, 2008, available at

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http://www.fec.gov/press/press2008/ The Commission’s rules at Part 400 not required to file electronically, on his 220080725millionaire.shtml. As of June implement the Millionaires’ or her letter containing the same 26, 2008, the increased contribution Amendment provisions for both House information), the amount by which the limits and reporting requirements were and Senate elections. The Commission, candidate intends to exceed the no longer in effect, and political party therefore, proposes to delete 11 CFR threshold amount as defined in 11 CFR committees were no longer permitted to Part 400 in its entirety. 400.9. The reporting requirements of make increased coordinated party that sentence would no longer be III. Proposed Amendments to Other expenditures on behalf of self-financed necessary because, as explained above, Provisions candidates. Id. the Commission proposes to delete 11 A. Part 100—Definitions CFR Part 400 through this rulemaking. II. Proposed Removal of Current 11 CFR Part 400—Increased Limits for 1. Proposed Removal of Current 11 CFR C. Proposed 11 CFR 102.2—Statement Candidates Opposing Self-Financed 100.19(g)—File, Filed, or Filing of Organization: Forms and Committee Candidates The Commission proposes to delete Identification Number The Commission proposes to delete current 11 CFR 100.19(g) because the The Commission proposes to retain current 11 CFR Part 400 because the statutory foundation for this provision and revise current 11 CFR statutory foundation for Part 400 has has been invalidated by the Supreme 102.2(a)(1)(viii), which requires been invalidated by the Supreme Court’s decision in Davis. Section principal campaign committees to Court’s decision in Davis. The 100.19 defines ‘‘file, filed, or filing’’ and provide an electronic mail address and Commission’s rules at 11 CFR Part 400 specifies when a document is a facsimile number on FEC Form 1. implement the Millionaires’ considered timely filed. Paragraph (g) Paragraph (viii) was promulgated by the Amendment. See Interim Final Rules at states that a candidate’s notification of Interim Final Rules to facilitate the 3975. The rules at Part 400: (1) Provide expenditures from personal funds under notification of expenditures from the notification and reporting 11 CFR 400.21 and 400.22 are personal funds under Part 400. See requirements for Senate and House of considered timely filed if sent by Interim Final Rules, 68 FR at 3972. Representatives candidates (subpart B); facsimile or electronic mail to all Although the notifications under Part (2) explain when the increased appropriate parties within 24 hours of 400 would no longer be required, the contribution limits apply (subpart C); (3) the time the thresholds set forth in 11 electronic mail address provided by explain how to calculate the increased CFR 400.21 and 400.22 are exceeded, committees facilitates the exchange of contribution limits (subpart D); and (4) thereby triggering the reporting information between committees and explain how candidates’ authorized requirement. the Commission for other purposes committees must dispose of excess As explained above, the Commission under FECA. Continuing to require contributions. In Davis, the Supreme proposes to delete current 11 CFR Part committees’ electronic mail address, Court decided that increased 400 in its entirety because the Supreme therefore, would continue to benefit the contribution limits and disclosure Court invalidated the Millionaires’ committees as well as the Commission. requirements for House of Amendment. The Commission proposes The Commission, however, proposes to Representatives candidates in BCRA to delete paragraph (g) from section delete the requirement that committees sections 319(a) and (b) were 100.19 because the candidate’s provide their facsimile number because unconstitutional. Thus, the notifications under 11 CFR 400.21 and it does not routinely communicate with Commission’s rules at 11 CFR Part 400 400.22 would no longer be required. committees via facsimile machine. that implement BCRA sections 319(a) Consistent with its delegated and (b) are no longer valid. 2. Proposed Revision of 11 CFR authority to require political committees The Supreme Court in Davis struck 100.33—Definition of ‘‘Personal Funds’’ to provide an ‘‘address’’ when filing a down only BCRA sections 319(a) and (b) The Commission proposes to revise statement of organization under 2 U.S.C. governing House of Representatives the definition of ‘‘personal funds’’ in 11 433(b)(1), the Commission proposes to elections. The Commission, however, CFR 100.33 by deleting the cross- retain the requirement that committees believes that the Supreme Court’s reference to current section 400.2, report their electronic mail address on analysis in Davis also precludes which the Commission intends to FEC Form 1. enforcement of the Commission’s rules remove through this rulemaking. The D. Proposed Removal of Current 11 CFR implementing BCRA sections 304(a) and Commission proposes to retain the 104.19—Special Reporting (b), which provide increased remainder of section 100.33 because the Requirements for Principal Campaign contribution limits and disclosure definition of ‘‘personal funds’’ in Committees of Candidates for Election requirements for Senate elections. In section 100.33 applies generally to other to the United States Senate or United Davis, the Court concluded that Title 2 rules that use the term ‘‘personal States House of Representatives increased contribution limits for a funds.’’ See Interim Final Rules, 68 FR House of Representatives candidate at 3972. The Commission also notes that The Commission proposes the remove facing a self-financed candidate the definition of ‘‘personal funds’’ at 11 and reserve current 11 CFR 104.19 impermissibly burdened the First CFR 9003.2(c)(3), which applies to Title because the statutory foundation of this Amendment right of the self-financed 26 of the United States Code, would section was invalidated by the Supreme candidates to spend their own money remain unchanged. Court’s decision in Davis. Current for campaign speech. 128 S.Ct. at 2771. section 104.19 requires principal There is no basis to conclude that the B. Proposed Revision of 11 CFR 101.1— campaign committees of Senate and constitutional implications would be Candidate Designations House of Representatives candidates to different for similarly situated The Commission proposes to delete report information necessary to candidates in Senate elections, governed the sentence in paragraph (a) of current calculate their ‘‘gross receipts by BCRA sections 304(a) and (b), than 11 CFR 101.1 that requires Senate and advantage,’’ which is defined at 2 U.S.C. in the respective House of House of Representatives candidates to 441a(i)(E) (Senate) and 441a–1(a)(2)(B) Representatives elections, governed by state, on their Statements of Candidacy (House of Representatives). This BCRA sections 319(a) and (b). on FEC Form 2 (or, if the candidate is reporting requirement was promulgated

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to ensure the candidates in the same Commission does not have authority, on settled principle of statutory House or Senate election have sufficient its own, to declare a duly enacted law construction that ‘‘[u]nless it is evident and timely information to calculate the to be unconstitutional. that the legislature would not have ‘‘opposition personal funds amount’’ The Court in Davis did not address enacted those provisions which are under 11 CFR Part 400.10. See Interim the validity of the personal loan within its power, independently of that Final Rules, 68 FR at 3972. Because the provision, and the plaintiff did not which is not, the invalid part may be Commission intends to delete Part 400 challenge that provision. Although that dropped if what is left is fully operative in response to the Supreme Court’s provision is in the same statutory as a law.’’ Buckley v. Valeo, 424 U.S. 1, decision in Davis, the reporting subsection of BCRA section 304(a) as 108 (1976) quoting Champlin Refining requirements under section 104.19 other provisions that the Supreme Court Co. v. Corporation Commission, 286 would no longer be necessary. in Davis held to be unconstitutional, the U.S. 210, 234 (1932)). In Buckley, the personal loan provision is placed in a Supreme Court struck down certain E. Proposed Deletion of 110.5(b)(2)— separate subsection within 2 U.S.C. provisions of FECA’s section 202, but Biennial Contribution Limitations 441a. This statutory provision has a expressly upheld other provisions The Commission proposes to delete wider application than other provisions within the same subsection of the current paragraph (b)(2) of section 110.5 of the Millionaires’ Amendment. It statute. because the statutory foundation for this applies equally to all candidates and In Advisory Opinion 2008–09, the provision has been invalidated by the regardless of whether the Millionaires’ Commission found that it was not at all Supreme Court’s decision in Davis. Amendment provisions also apply. Most ‘‘evident’’ from the text, function, or Paragraph (b)(2) states the notably, while other provisions of the legislative history of the Millionaires’ circumstances under which the Millionaires’ Amendment apply only to Amendment that Congress intended the individual biennial limits on Senate and House of Representatives personal loan provision to be contributions do not apply to candidates, the loan repayment inextricably tied to the increased contributions made pursuant to 11 CFR provision applies to candidates for all contribution limits of BCRA 304(a). Part 400. As explained above, the Federal offices, including presidential Section 304(a) was codified in two Commission intends to remove 11 CFR candidates. Because this statutory separate provisions of 2 U.S.C. 441a, Part 400 because the Davis decision provision has wider application than one providing for the increased invalidated the Millionaires’ the Millionaires’ Amendment, the contribution limits and the other Amendment. Accordingly, the Commission added new sections 11 CFR limiting repayment of personal loans. exception to individual contribution 116.11 and 116.12 rather than include Functionally, the personal loan limits under section 110.5(b)(2) is no these rules in 11 CFR Part 400 with the provision can operate effectively longer valid. The Commission, Millionaires’ Amendment regulations. without the provisions invalidated by therefore, proposes to delete 11 CFR See Interim Final Rules at 3973. Davis. Because the loan repayment 110.5(b)(2). The Commission’s proposal to retain provision’s operation does not depend sections 116.11 and 116.12 is consistent upon the invalidated increased F. Proposed Retention of 11 CFR 116.11 with the approach it took in a recent contribution limits or reporting and 116.12—Repayment of Candidate advisory opinion, which was requested provisions, its validity is not affected by Loans after Davis invalidated the Millionaires’ their invalidation. Moreover, legislative The Commission proposes to retain Amendment. See Advisory Opinion history shows that Congress in several sections 11 CFR 116.11 and 116.12 of 2008–09 (Lautenberg). Senator instances addressed the loan repayment the regulations concerning the Lautenberg loaned money to his provision separately from the repayment of candidates’ personal principal campaign committee in unconstitutional provisions regarding loans. The Commission seeks comment connection with his primary election. increased contribution limits. See, e.g., on this proposal in light of the Supreme The Senator asked the Commission 147 Cong. Rec. S2450–51 (daily ed. Mar. Court’s decision in Davis. whether the personal loan provision 19, 2001) (statement of Sen. Domenici); BCRA added a new provision applied to his personal loan case in light 147 Cong. Rec. S2461–62 (daily ed. Mar. prohibiting candidates and their of the Davis decision. The Commission 19, 2001) (statement of Sen. Domenici). authorized committees from using concluded that it did apply because the The Commission seeks comment on contributions made after the election to Davis decision did not address the its proposal to retain the current rules repay loans from the candidates to their constitutionality of the personal loan at 11 CFR 116.11 and 116.12 restricting authorized committees to the extent the provision. The Commission explained the repayment of personal loans. contributions total over $250,000. See 2 that, unlike the BCRA provisions found U.S.C. 441a(j). These loans are referred to be unconstitutional in Davis, the G. Proposed Retention of 11 CFR to as ‘‘personal loans.’’ The personal loan provision applies equally 110.1(b)(3)(ii)(C)—Net Debts Commission’s current rules at 11 CFR to all candidates, regardless of whether Outstanding 116.11 and 116.12 implement 2 U.S.C. they or their opponents have triggered The Commission proposes to retain 441a(j). Section 116.11 prohibits an the increased campaign contribution current 11 CFR 110.1(b)(3), which authorized committee from using limits. restricts the ability of candidates and contributions made after an election to The Commission also concluded in their authorized committees to accept repay any personal loan by a candidate Advisory Opinion 2008–09 that the contributions after the election. that exceeds $250,000. Section 116.12 personal loan provision was severable Together with sections 116.11 and addresses the repayment of candidate’s from the Millionaires’ Amendment. As 116.12, current 11 CFR 110.1(b)(3) personal loans that, in the aggregate, are the Commission explained there, BCRA implements 2 U.S.C. 441a(j). equal to or less than $250,000. section 401 provides that the Candidates and their authorized The Commission believes that the invalidation of one provision of BCRA committees cannot accept contributions Davis decision did not invalidate the will not affect the validity of any other after the election is over unless the personal loan provision in BCRA and, provisions of BCRA nor the application candidate still has net debts outstanding thus, it proposes to retain the rules that of such provisions to other persons and from that election. 11 CFR 110.1(b)(1)(i). implement that provision. The circumstances. 2 U.S.C. 454. It is a well- This rule was promulgated long before

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BCRA added the loan repayment ‘‘bi-annual’’ to ‘‘biennial.’’ This would not have a significant impact on restriction in 441a(j). After the election proposed change would make the a substantial number of small entities. is over, candidates and their authorized spelling consistent with the title of List of Subjects committees may accept contributions up section 110.5, which uses the term to the amount of their ‘‘net debts biennial. 11 CFR Part 100 outstanding,’’ as defined in current 11 C. 11 CFR 9001.1—Scope; 11 CFR Elections. CFR 110.1(b)(3)(ii). To conform with the 9003.1—Candidate and Committee 11 CFR Part 101 fundraising restrictions in 11 CFR Agreement; 11 CFR 9031.1—Scope; 11 116.11, the Commission added CFR 9033.1—Candidate and Committee Political candidates, Reporting and paragraph (C) to section 110.1(b)(3)(ii), Agreement recordkeeping requirements. which excludes the amount of personal loans that exceed $250,000 from the The Commission proposes to make 11 CFR Part 102 definition of ‘‘net debt outstanding.’’ technical amendments to these sections Political committees and parties, See Interim Final Rules, 68 FR at 3973. that would update the reference to its Reporting and recordkeeping The Commission proposes to retain the other regulations to reflect the proposed requirements. current rule at 11 CFR 110.1(b)(3)(ii)(C) elimination of Part 400. 11 CFR Part 104 for the same reasons it intends to retain V. Request for Comments the current rules 11 CFR 116.11 and Campaign funds, Political committees The Commission invites comments 116.12, as explained above. and parties, Reporting and from the public concerning any of the recordkeeping requirements. H. Proposed Retention of 11 CFR proposals outlined above. The 9035.2(c)—Expenditure Limitations Commission also invites comments from 11 CFR Part 110 The Commission proposes to retain the public regarding any additional Campaign funds, Political committees the cross-reference in current 11 CFR changes that should be made to 11 CFR and parties. 100.33, 101.1, 102.2(a)(1)(viii), 9035.2(c) to the definition of ‘‘personal 11 CFR Part 113 funds’’ in 11 CFR 9003.2. Section 9035.2 110.1(b)(3)(ii)(C), 116.11, 116.12, provides limitations on expenditures 9035.2(c), or any other section of the Campaign funds. regulations to conform with the from personal or family funds when a 11 CFR Part 116 candidate has accepted matching funds holdings and points of law articulated Administrative practice and in a presidential primary election. In in the Supreme Court’s decision in procedure, Business and industry, promulgating 11 CFR 9035.2(c), the Davis. Credit, Elections, Political candidates, Commission explained that it cross- Certification of No Effect Pursuant to 5 Political committees and parties. referenced that section to the definition U.S.C. 605(b) (Regulatory Flexibility of ‘‘personal funds’’ in 11 CFR 9003.2 Act) 11 CFR Part 400 because it was more appropriate in the The Commission certifies that the Campaign funds, Elections, Political context of Title 26 regulations than the attached proposed rule, if adopted, candidates, Political committees and Commission’s definition of ‘‘personal would not have a significant economic parties, Reporting and recordkeeping funds’’ in 11 CFR 100.33, which applies impact on a substantial number of small requirements. only to FECA. See Interim Final Rules, entities. The basis for this certification 11 CFR Part 9001 68 FR at 3986–87. For the same reason, is that few, if any, small entities would the Commission continues to believe be affected by this proposed rulemaking, Campaign funds. that the cross-reference in 11 CFR which applies only to Federal 11 CFR Part 9003 9035.2(c) to 11 CFR 9003.2 is candidates and their campaign appropriate and, therefore, it should be committees, and political committees of Campaign funds, Reporting and retained. political parties. Such committees are recordkeeping requirements. IV. Technical and Conforming not ‘‘small entities’’ under 5 U.S.C. 601. 11 CFR Part 9031 Candidate and party committees are not Amendments to Other Regulations Campaign funds. independently owned and operated A. 11 CFR 100.153—Routine Living because they are not financed and 11 CFR Part 9033 Expenses; 11 CFR 113.1(g)(6)(ii)— controlled by a small identifiable group Definition of Personal Use Campaign funds, Reporting and of individuals; rather, they rely on recordkeeping requirements. The Commission proposes to amend contributions from a variety of persons 11 CFR 100.153 and 113.1(g)(6)(ii) by to fund the committee’s activities. The 11 CFR Part 9035 revising the cross-reference to the Democratic and Republican parties also Campaign funds, Reporting and definition of ‘‘personal funds’’ in 11 have a major controlling influence recordkeeping requirements. CFR 110.10(b) to current 11 CFR 100.33. within the political arena and are For the reasons set out in the The Commission deleted 11 CFR dominant in their field. However, to the preamble, the Commission proposes to 110.10(b) in the Interim Final Rules. extent that any party committees amend Subchapters A, C, E, and F of The proposed change would reflect the representing major or minor political Chapter I of Title 11 of the Code of Commission’s prior removal of the parties or any other political committees Federal Regulations as follows: ‘‘personal funds’’ definition from might be considered ‘‘small entities,’’ section 110.10(b) to section 100.33. the number that would be affected by PART 100—SCOPE AND DEFINITIONS this rule is not substantial. (2 U.S.C. 431) B. 11 CFR 110.5(b)(2)—Biennial The proposed rule also would not add Contribution Limitations new substantive provisions to the 1. The authority citation for part 100 The Commission proposes to amend current regulations, but rather it would continues to read as follows: 11 CFR 110.5 paragraphs (b), (d), and remove or retain existing regulations. Authority: 2 U.S.C. 431, 434, 438(a)(8), and (e), by revising the spelling of the word Therefore, the attached proposed rule 439a(c).

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§ 100.19 [Amended] Authority: 2 U.S.C. 432(e), 434(a)(11), PART 110—CONTRIBUTION AND 2. In section 100.19, is amended by 438(a)(f). EXPENDITURE LIMITATIONS AND removing the reference to ‘‘(g)’’ and 7. Section 101.1(a) is revised to read PROHIBITIONS adding in its place ‘‘(f)’’ in paragraph (b) as follows: introductory text and (b)(2) and by 12. The authority citation for part 110 § 101.1 Candidate designations (2 U.S.C. continues to read as follows: removing paragraph (g). 432(e)(1)). 3. Section 100.33 is revised to read as (a) Principal Campaign Committee. Authority: 2 U.S.C. 431(8), 431(9), follows: 432(c)(2), 437d, 438(a)(8), 441a, 441b, 441d, Within 15 days after becoming a 441e, 441f, 441g, 441h, and 36 U.S.C. 510. § 100.33 Personal funds. candidate under 11 CFR 100.3, each Personal funds of a candidate means candidate, other than a nominee for the 13. In § 110.5, paragraphs (b)(1), (d), the sum of all of the following: office of Vice President, shall designate and (e) are revised, and paragraph (b)(2) (a) Assets. Amounts derived from any in writing, a principal campaign is removed and reserved to read as asset that, under applicable State law, at committee in accordance with 11 CFR follows: the time the individual became a 102.12. A candidate shall designate his or her principal campaign committee by § 110.5 Aggregate biennial contribution candidate, the candidate had legal right limitation for individuals (2 U.S.C. of access to or control over, and with filing a Statement of Candidacy on FEC 441a(a)(3)). Form 2, or, if the candidate is not respect to which the candidate had— * * * * * (1) Legal and rightful title; or required to file electronically under 11 (2) An equitable interest; CFR 104.18, by filing a letter containing (b) Biennial limitations. (1) In the two- (b) Income. Income received during the same information (that is, the year period beginning on January 1 of an the current election cycle, of the individual’s name and address, party odd-numbered year and ending on candidate, including: affiliation, and office sought, the District December 31 of the next even-numbered year, no individual shall make (1) A salary and other earned income and State in which Federal office is contributions aggregating more than that the candidate earns from bona fide sought, and the name and address of his $95,000, including no more than: employment; or her principal campaign committee at (2) Income from the candidate’s stocks the place of filing specified at 11 CFR (i) $37,500 in the case of contributions or other investments including interest, part 105). Each principal campaign to candidates and the authorized dividends, or proceeds from the sale or committee shall register, designate a committees of candidates; and liquidation of such stocks or depository, and report in accordance (ii) $57,500 in the case of any other investments; with 11 CFR parts 102, 103, and 104. contributions, of which not more than (3) Bequests to the candidate; * * * * * $37,500 may be attributable to (4) Income from trusts established contributions to political committees before the beginning of the election PART 102—REGISTRATION, that are not political committees of any cycle; ORGANIZATION, AND national political parties. (5) Income from trusts established by RECORDKEEPING BY POLITICAL COMMITTEES (2 U.S.C. 433) * * * * * bequest after the beginning of the (d) Independent expenditures. The election cycle of which the candidate is 8. The authority citation for part 102 biennial limitation on contributions in the beneficiary; continues to read as follows: this section applies to contributions (6) Gifts of a personal nature that had Authority: 2 U.S.C. 432, 433, 434(a)(11), made to persons, including political been customarily received by the 438(a)(8), 441d. committees, making independent candidate prior to the beginning of the expenditures under 11 CFR part 109. election cycle; and 9. In § 102.2, paragraph (a)(1)(viii) is (7) Proceeds from lotteries and similar revised to read as follows: (e) Contributions to delegates and delegate committees. The biennial legal games of chance; and § 102.2 Statement of organization: Forms (c) Jointly owned assets. Amounts and committee identification number (2 limitation on contributions in this derived from a portion of assets that are U.S.C. 433(b), (c)). section applies to contributions to delegate and delegate committees under owned jointly by the candidate and the (a) * * * candidate’s spouse as follows: (1) * * * 11 CFR 110.14. (viii) If the committee is a principal (1) The portion of assets that is equal PART 113—USE OF CAMPAIGN campaign committee of a candidate for to the candidate’s share of the asset ACCOUNTS FOR NON-CAMPAIGN the Senate or the House of under the instrument of conveyance or PURPOSES ownership; provided, however, Representatives, the principal campaign (2) If no specific share is indicated by committee’s electronic mail address. 14. The authority citation for part 113 an instrument of conveyance or * * * * * continues to read as follows: ownership, the value of one-half of the property. PART 104—REPORTS BY POLITICAL Authority: 2 U.S.C. 432(h), 438(a)(8), 439a, COMMITTEES AND OTHER PERSONS 441a. § 100.53 [Amended] (2 U.S.C. 434) § 113.1 [Amended] 5. Section 100.153 is amended by removing the reference to ‘‘11 CFR 10. The authority citation for part 104 15. Section 113.1(g)(6)(ii) is amended 110.10(b)’’ and adding in its place ‘‘11 continues to read as follows: by removing the reference to ‘‘11 CFR CFR 100.33’’. Authority: 2 U.S.C. 431(1), 431(8), 431(9), 110.10(b)’’ and adding in its place ‘‘11 432(i), 434, 438(a)(8) and (b), 439a, 441a, and CFR 100.33’’. PART 101—CANDIDATE STATUS AND 36 U.S.C. 510. DESIGNATIONS (2 U.S.C. 432(e)) PART 400—[REMOVED] § 104.19 [Removed and Reserved] 6. The authority citation for part 101 11. Section 104.19 is removed and 16. Under the authority of 2 U.S.C. continues to read as follows: reserved. 437d(a)(8), part 400 is removed.

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PART 9001—SCOPE DEPARTMENT OF ENERGY (Proposed Clarification)). EEI and NEI state that because a majority of their 17. The authority citation for part Federal Energy Regulatory members will be required to implement 9001 continues to read as follows: Commission CIP Reliability Standards and NRC cybersecurity requirements in Authority: 26 U.S.C. 9009(b). 18 CFR Part 40 accordance with the clarification to be § 9001.1 [Amended] [Docket No. RM06–22–000] issued in this docket and because of the complex of the issues addressed in the 18. Section 9001.1 is amended by Mandatory Reliability Standards for Proposed Clarification, additional time removing the number ‘‘400’’ and adding Critical Infrastructure Protection; is needed to submit well-developed in its place the number ‘‘300’’ in both Notice of Extension of Time comments. instances in which it appears. Upon consideration, notice is hereby Issued October 10, 2008. given that an extension of time for filing PART 9003—ELIGIBILITY FOR AGENCY: Federal Energy Regulatory comments is granted to and including PAYMENTS Commission. November 3, 2008. ACTION: Order on Proposed Clarification: Nathaniel J. Davis, Sr., 19. The authority citation for part Extension of comment date. 9003 continues to read as follows: Deputy Secretary. SUMMARY [FR Doc. E8–24630 Filed 10–17–08; 8:45 am] Authority: 26 U.S.C. 9003 and 9009(b). : On September 18, 2008, the Commission issued an order proposing BILLING CODE 6717–01–P § 9003.1 [Amended] to clarify that the facilities within a nuclear generation plant in the United 20. In section 9003.1, paragraph (b)(8) States that are not regulated by the U.S. DEPARTMENT OF LABOR is amended by removing the number Nuclear Regulatory Commission are ‘‘400’’ and adding in its place the subject to compliance with the eight Wage and Hour Division number ‘‘300’’. mandatory ‘‘CIP’’ Reliability Standards approved in Commission Order No. 706. 29 CFR Parts 3 and 5 PART 9031—SCOPE The date for filing comments on the RIN 1215–AB67 Commission’s proposal is being 21. The authority citation for part extended at the request of the Edison 9031 continues to read as follows: Protecting the Privacy of Workers: Electric Institute and the Nuclear Energy Labor Standards Provisions Applicable Authority: 26 U.S.C. 9031 and 9039(b). Institute. to Contracts Covering Federally DATES: § 9031.1 [Amended] Comments are due November 3, Financed and Assisted Construction 2008. AGENCY: Wage and Hour Division, 22. Section 9031.1 is amended by ADDRESSES: You may submit comments, removing the number ‘‘400’’ and adding Employment Standards Administration, identified by docket number by any of Department of Labor. in its place the number ‘‘300’’ in both the following methods: ACTION: instances in which it appears. • Agency Web Site: http://ferc.gov. Notice of proposed rulemaking; Documents created electronically using request for comments. PART 9033—ELIGIBILITY FOR word processing software should be SUMMARY: In this proposed rule, the PAYMENTS filed in native applications or print-to- Department of Labor (Department or PDF format and not in a scanned format. DOL) proposes to revise regulations • 23. The authority citation for part Mail/Hand Delivery: Commenters issued pursuant to the Davis-Bacon and 9033 continues to read as follows: unable to file comments electronically Related Acts and the Copeland Anti- Authority: 26 U.S.C. 9003(e), 9033 and must mail or hand-deliver an original Kickback Act to better protect the 9039(b). and 14 copies of their comments to: personal privacy of laborers and Federal Energy Regulatory Commission, mechanics employed on covered § 9033.1 [Amended] Secretary of the Commission, 888 First construction contracts. Street, NE., Washington, DC 20426. 24. In section 9033.1, paragraph DATES: Comments must be submitted on (b)(10) is amended by removing the FOR FURTHER INFORMATION CONTACT: or before November 19, 2008. number ‘‘400’’ and adding in its place Jonathan First (Legal Information), ADDRESSES: You may submit comments, the number ‘‘300’’. Office of General Counsel, 888 First identified by RIN 1215–AB67, by either Street, NE., Washington, DC 20426, Dated: October 8, 2008. one of the following methods: (202) 502–8529; Regis Binder (Technical • Electronic comments, through the Donald F. McGahn, II, Information), Office of Electric federal eRulemaking Portal: http:// Chairman, Federal Election Commission. Reliability, 888 First Street, NE., www.regulations.gov. Follow the [FR Doc. E8–24505 Filed 10–17–08; 8:45 am] Washington, DC 20426, (202) 502–6460. instructions for submitting comments. • BILLING CODE 6715–01–P SUPPLEMENTARY INFORMATION: On Mail: Wage and Hour Division, October 10, 2008, the Edison Electric Employment Standards Administration, Institute (EEI) and the Nuclear Energy U.S. Department of Labor, Room S– Institute (NEI) filed a joint motion for an 3502, 200 Constitution Avenue, NW., extension of time to file comments in Washington, DC 20210. response to the Commission’s Order on Instructions: Please submit one copy Proposed Clarification issued September of your comments by only one method. 18, 2008, in the above-referenced All submissions received must include proceeding. (Mandatory Reliability the agency name and Regulatory Standards for Critical Infrastructure Information Number (RIN) identified Protection, 124 FERC ¶ 61,247 (2008) above for this rulemaking. Comments

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received will be posted to http:// Federal Register. Please identify all less than the proper Davis-Bacon and www.regulations.gov, including any comments submitted in electronic form Related Act prevailing wage rate for the personal information provided. Because by the RIN docket number (1215–AB67). work performed must accompany the we continue to experience delays in Because of delays in receiving mail in payroll. Id. 3.3(b), 5.5(a)(3)(ii)(B). receiving mail in the Washington, DC, the Washington, DC area, commenters Regulations implementing the Copeland area, commenters are strongly should transmit their comments Act are contained in 29 CFR parts 3 and encouraged to transmit their comments electronically via the federal 5. electronically via the federal eRulemaking Portal at http:// In addition to the statutory authorities eRulemaking Portal at http:// www.regulations.gov, or submit them by above, Reorganization Plan No. 14 of www.regulations.gov or to submit them mail early to ensure timely receipt prior 1950 conferred upon the Secretary of by mail early. For additional to the close of the comment period. Labor the authority to coordinate the information on submitting comments Submit one copy of your comments by administration and enforcement of the and the rulemaking process, see the only one method. labor standards provisions of the above ‘‘Public Participation’’ heading of the Request for Comments: The DOL laws by the federal agencies providing SUPPLEMENTARY INFORMATION section of requests comments on all issues related the federal funding or assistance for the this document. to this notice of proposed rulemaking. covered construction activities. See 5 Docket: For access to the docket to This proposed rule, if implemented as a U.S.C. Appendix. read background documents or final rule, will enhance the privacy of The Secretary delegated her authority comments received, go to the federal workers and reduce paperwork under the Davis-Bacon Act; the eRulemaking Portal at http:// requirements. The changes will not Copeland Act, 40 U.S.C. 276c; www.regulations.gov. result in additional compliance costs for Reorganization Plan No. 14 of 1950; and regulated entities. the Tennessee Valley Authority Act, 16 FOR FURTHER INFORMATION CONTACT: U.S.C. 831, the Contract Work Hours Richard M. Brennan, Director, Office of II. Discussion of Changes and Safety Standards Act, as amended, Interpretations and Regulatory Analysis, Summary of Pertinent Laws: Section 1 40 U.S.C. 327, et seq. to the Assistant Wage and Hour Division, Employment of the Davis-Bacon Act (DBA), as Secretary for Employment Standards Standards Administration, U.S. amended, 40 U.S.C. 3141 requires that Administration. See Secretary’s Order Department of Labor, Room S–3506, 200 each contract over $2,000 to which the 01–2008, issued May 30, 2008, and Constitution Avenue, NW., Washington, United States or the District of Columbia published in the Federal Register on DC 20210; telephone: (202) 693–0051 is a party for the construction, June 6, 2008 (73 FR 32424). (this is not a toll-free number). Copies alteration, or repair of public buildings Privacy Protections: Changes are of this notice may be obtained in or public works shall contain a clause proposed in the contract labor standards alternative formats (Large Print, Braille, setting forth the minimum wages to be clauses that are required to be included Audio Tape or Disc), upon request, by paid to various classes of laborers and in federally funded and assisted calling (202) 693–0023 (not a toll-free mechanics employed under the construction contracts to protect the number). TTY/TDD callers may dial contract. The DBA requires contractors privacy of workers by reducing the toll-free (877) 889–5627 to obtain or their subcontractors to pay workers scope of information required in information or request materials in employed directly upon the site of the certified payrolls provided weekly to alternative formats. work no less than the locally prevailing appropriate federal agencies. The Questions of interpretation and/or wages and fringe benefits paid on proposed regulatory changes would enforcement of regulations issued by projects of a similar character as eliminate social security numbers and this agency or referenced in this notice determined by the Secretary of Labor. home addresses from documents that may be directed to the nearest Wage and Regulations in 29 CFR part 5 contain the are provided weekly to non-employing Hour Division (WHD) District Office. Davis-Bacon and Related Acts required government agencies, contractors, Locate the nearest office by calling our contract clauses, and descriptions and subcontractors, applicants, sponsors, toll-free help line at (866) 4USWAGE interpretations of the labor standards and/or owners. ((866) 487–9243) between 8 a.m. and 5 requirements. The current regulations for the Davis- p.m. in your local time zone, or log onto The Copeland Anti-Kickback Act, 40 Bacon and Related Acts (DBRA), 29 CFR the WHD’s Web site for a nationwide U.S.C. 3145, requires, among other part 5, require that certified payrolls be listing of WHD District and Area Offices things, that contractors and provided to the contracting government at: http://www.dol.gov/esa/whd/ subcontractors performing work on most office for each week of work: ‘‘The america2.htm. federally financed or assisted payrolls submitted shall set out SUPPLEMENTARY INFORMATION: construction contracts furnish weekly a accurately and completely all of the statement with respect to the wages paid information required, including ‘‘name, I. Electronic Access and Filing each worker during the preceding week. address, and social security number of Comments See 29 CFR 3.3(b), 3.4. Contractors must each such worker* * * .’’ 29 CFR Public Participation: This notice is submit weekly a copy of all payrolls to 5.5(a)(3)(i), (ii). These requirements flow available through the Federal Register the federal agency contracting for or down to subcontractors as well. Id. and the http://www.regulations.gov Web financing the construction project, if the 5.5(a)(6). Stakeholders in the regulated site. You may also access this notice via agency is a party to the contract, but if community have noted concerns with the WHD home page at http:// the agency is not such a party, the requiring private information like www.dol.gov/esa/whd/regulations/ contractor will submit the payrolls to individual workers’ social security DBRA2008.htm. To comment the applicant, sponsor, or owner, as the numbers and addresses on the required electronically on federal rulemakings, case may be, for transmission to the payroll submissions. go to the federal eRulemaking Portal at contracting agency. 29 CFR There is no statutory requirement that http://www.regulations.gov, which will 5.5(a)(3)(ii)(A). A signed ‘‘Statement of the Department require social security allow you to find, review, and submit Compliance’’ indicating the payrolls are numbers or addresses on certified comments on federal documents that are correct and complete and that each payrolls. In the 1980s, the Employment open for comment and published in the laborer or mechanic has been paid not Standards Administration proposed

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eliminating the requirement for weekly addresses, and social security numbers CFR be revised to eliminate the submission of the certified payrolls on Davis-Bacon payroll records under requirement of social security numbers altogether. The final rule was the Freedom of Information Act and addresses on weekly submissions of successfully challenged by the constitutes a clearly unwarranted detailed payrolls to the appropriate American Federation of Labor–Congress invasion of the workers’ privacy. See federal agency. After detailed review of of Industrial Organizations (AFL–CIO) Sheet Metal Workers Int’l Ass’n, Local the Copeland Act and consideration of as eliminating an important compliance No. 19 v. U.S. Veterans Affairs, 135 F.3d the regulation in accordance with the monitor. See Building & Const. Trades’ 891 (3d Cir. 1998) (disclosure of names, Paperwork Reduction Act, the Dept., AFL–CIO v. Donovan, 712 F.2d social security numbers, or addresses Department has determined that the 611 (DC Cir. 1983). The court held that would constitute unwarranted invasion statutory requirement to furnish weekly the Copeland Act required covered of privacy); Sheet Metal Workers Int’l a detailed payroll with respect to the contractors and subcontractors Ass’n, Local 9 v. U.S. Air Force, 63 F.3d wages paid each employee during the performing work on most federally 994 (10th Cir. 1995) (holding release of preceding week can be satisfied by a financed or assisted construction names alone violated substantial weekly submission of a payroll without contracts to furnish weekly a statement privacy interest); Painting Indus. Of this information. This change is in with respect to the wages paid each Haw. Mkt. Recovery Fund v. United keeping with the Administration’s worker during the preceding week. States Dep’t of Air Force, 26 F.3d 1479 objective of protecting the privacy Importantly, however, the court noted (9th Cir. 1994) (names and addresses); interests of this nation’s workers and that there was no specific requirement Painting & Drywall Work Preservation reducing reporting burdens imposed on for what individualized wage Fund v. HUD, 936 F.2d 1300 (DC Cir. the public. Importantly, the proposed information for each covered worker 1991) (same); Hopkins v. HUD, 929 F.2d regulation would still require that the was necessary on the certified payroll 81 (2d Cir. 1991) (same). addresses and social security numbers submissions. See Id. at 633. With regard to addresses of covered of covered workers be maintained and The requirements for including social construction workers, it should be noted made available to government agencies security numbers and home addresses that the Department has for some time upon request to permit government also does not comport with recent provided for limitations on mandatory agencies to investigate compliance with guidance on limiting the use of weekly disclosures on certified payrolls. the requirements of the Davis-Bacon and personally identifying information, nor The instructions to WHD’s optional Related Acts. The Department also the Department’s interests in protecting Form WH–347, which is a model for requests input on whether it would be workers’ privacy and preventing certified payroll submissions, currently appropriate, as an alternative to identity theft. On May 22, 2007, the specifies that addresses are only eliminating personal addresses Office of Management and Budget required for the first time the laborer or altogether from certified payroll issued a Memorandum on mechanic performs work on the contract submissions, to instead require that the ‘‘Safeguarding Against and Responding and whenever there is a change of addresses of subcontractor personnel to the Breach of Personally Identifiable address. The proposal will bring the (and any changes of address) be Information.’’ Under the memo, regulatory provisions in line with the provided to the contractor (or other government agencies are to reduce ‘‘the Department’s information collection entity) in direct privity with the volume of collected and retained needs. government, but not included in weekly [personal identifying] information to the The Department believes government submissions. minimum necessary; [and limit] access agencies can ably enforce the In addition, WHD’s optional Form to only those individuals who must requirements of the Copeland Act and WH–347, which is a model for certified have such access.’’ OMB Memorandum Davis-Bacon and Related Acts, without payroll submissions, will be amended to M–07–16 at 2. The Department of needlessly continuing to expose workers reflect these requirements and is the Labor’s own Guidelines on the to potential identity theft from weekly subject of a Paperwork Reduction Act Protection of Personal Identifiable transmission of personally identifiable notice as discussed more fully below. Information (PII), define PII as including information on payroll records. The Department also proposes two ‘‘name, address [and] social security Construction workers’ addresses and minor changes to the regulations to number’’ and direct that DOL employees social security numbers will continue to reflect current practices. The first of and contractors to safeguard the be required to be maintained by these would eliminate references in the information. See DOL Guidance at construction contractors and regulations to Form WH–348, as the http://www.dol.gov/dol/ppii.htm. subcontractors, and government agency no longer sponsors the form. See ‘‘Because DOL employees and agencies responsible for ensuring 29 CFR 3.3(b). The information contractors may have access to personal compliance with these contract previously presented on Form WH–348 identifiable information concerning provisions and the WHD will continue appears on Form WH–347 and was individuals * * *, we have a special to be able to access the social security duplicative. In addition, the proposed responsibility to protect that numbers and addresses of employees rule revises how interested parties may information from loss and misuse.’’ Id. from the contractor or subcontractor if obtain Form WH–347, as the form is no Congress has also focused on necessary for purposes of an audit or longer available for purchase through protecting the privacy interests of investigation, 29 CFR 5.5(a)(3)(i), (iii). the Government Printing Office. See 29 workers in legislation, including for For example, certified payrolls are not CFR 3.3(b) and 5.5(a)(3)(ii)(A). example, the Privacy Act, and the provided weekly under the Service Health Insurance Portability and Contract Act. Consequently, the III. Paperwork Reduction Act Accountability Act (HIPAA). Likewise, a Department believes that elimination of As part of its continuing effort to number of federal courts have the weekly submissions of construction reduce paperwork and respondent previously recognized concerns that any workers’ social security numbers and burden, the Department conducts a potential release of certified payrolls has address information will not be a barrier preclearance consultation program to substantial personal privacy to effective enforcement. Accordingly, provide the general public and federal implications. For example, courts have for the forgoing reasons, it is proposed agencies with an opportunity to held that the release of workers’ names, that section 5.5(a)(3)(ii) of title 29 of the comment on proposed and continuing

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collections of information in accordance providing benefits under a plan or to the Department. 29 CFR with the Paperwork Reduction Act of program described in Davis-Bacon Act 5.5(a)(3)(ii)(A). In 2004, WHD issued a 1995 (PRA) 44 U.S.C. 3506(c)(2)(A). section 1(b)(2)(B), the contractor must letter to the U.S. Army Corps of This program helps to ensure that maintain records showing that the Engineers and the Federal Highway requested data can be provided in the commitment to provide such benefits is Administration advising that the desired format, reporting burden (time enforceable, that the plan or program is submission of electronic signatures and financial resources) is minimized, financially responsible, that the plan or satisfied the requirements of the collection instruments are clearly program has been communicated in Copeland Act and its regulations. It is understood, and the impact of collection writing to the laborers or mechanics the Department’s understanding that requirements on respondents can be affected, and the anticipated or actual some agencies have set up systems to properly assessed. The PRA typically costs incurred in providing such gather these records electronically and requires an agency to provide notice and benefits. Id. Contractors employing the Department encourages these and seek public comments on any proposed apprentices or trainees under approved other initiatives to increase efficiency collection of information contained in a programs must maintain written and requests comments on any proposed rule. See 44 U.S.C. evidence of the registration of additional methods to improve efficient 3506(c)(2)(B); 5 CFR 1320.8. Persons are apprenticeship programs and compliance with the certified payroll not required to respond to the certification of trainee programs, the requirements. information collection requirements as registration of the apprentices and Similarly, the submission of contained in this proposal unless and trainees, and the ratios and wage rates photocopies or other automated until they are approved by the OMB prescribed in the applicable programs. duplication of the contractor’s regular under the PRA at the final rule stage. Id. The Department proposes to remove payrolls containing all of the required Purpose and Use: The Copeland Act the regulatory requirement that the information pertinent to the government requires contractors and subcontractors weekly payroll submitted to the construction project(s) is sufficient to performing work on most federally contracting agency contain each satisfy the payroll data requirements. 29 financed or assisted construction worker’s social security number and CFR 5.5(a)(3)(ii)(A). contracts to furnish weekly a statement address. The proposal does not remove Public Burden Estimates: This with respect to the wages paid each the requirement for worker addresses proposed rule introduces no new worker during the preceding week. See and social security numbers to be information collection requirements nor 40 U.S.C. 3145; 29 CFR 3.3(b), 3.4. retained in records maintained by the proposes any substantive or material Contractors must submit weekly a copy contractor or subcontractor. Id. changes to the existing information of all payrolls to the federal agency 5.5(a)(3)(i). See also Id. 5.5(a)(6). collection requirements noted above. contracting for or financing the Government contracting officials and The Department, however, is proposing construction project, if the agency is a WHD staff use the records maintained to remove the requirement to report an party to the contract, but if the agency by contractors and subcontractors as employee’s social security number and is not such a party, the contractor will well as the weekly certified payrolls to address, which the Department submit the payrolls to the applicant, verify payment of the required wages for estimates will reduce the average sponsor, or owner, as the case may be, the work performed. reporting time from an average of 56 for transmission to the contracting The Department has developed minutes per response to 54 minutes per agency. 29 CFR 5.5(a)(3)(ii)(A). A signed optional use Form WH–347, Payroll response. ‘‘Statement of Compliance’’ indicating Form, which contractors may use to The Department bases the following the payrolls are correct and complete meet the payroll reporting requirements. burden estimates for this information and that each laborer or mechanic has Id. 3.3(b), 5.5(a)(3)(ii)(A). The form collection on agency experience, except been paid not less than the proper contains the basic payroll information as otherwise noted. F.W. Dodge Report Davis-Bacon Act prevailing wage rate that contractors must furnish each week data for the period June 1, 2007, through for the work performed must they perform any work subject to Davis- May 31, 2008, indicate there were accompany the payroll. Id. 3.3(b), Bacon Act provisions. The contractor 109,323 State and local construction 5.5(a)(3)(ii)(B). Contractors must also also completes, dates, and signs a projects and 3032 federal construction maintain these records for three years statement on the reverse side of the form projects. The Department estimates that after completion of the work. Id. 3.4(b), to meet the certification requirement. approximately 33 percent of State and 5.5(a)(3)(i). The contractor submits the completed local construction projects utilize More specifically, the current form weekly to the contracting agency. federal funds, resulting in an estimated regulations require contractors 29 CFR 5.5(a)(3)(ii)(A). The contractor 36,077 State and local construction performing work on projects subject to may substitute copies of its payroll projects being subject to Davis-Bacon Davis-Bacon Act provisions to retain the containing all of the required labor standards (109,323 projects × 33 name, address, social security number, information and provide the required percent). Added to the 3032 federal correct classification, hourly rates of certification. Id. projects, this would be an estimated wages paid (including rates of Information Technology: In 39,109 annual projects subject to Davis- contributions or costs anticipated for accordance with the Government Bacon labor standards. bona fide fringe benefits or cash Paperwork Elimination Act (GPEA), 44 The Department estimates these equivalents thereof of the types U.S.C. 3504, the WHD has posted Form projects have an average of 8 contractors described in Davis-Bacon Act section WH–347 on the Internet (http:// or subcontractors, resulting in 312,872 1(b)(2)(B)), daily and weekly number of www.dol.gov/esa/whd/forms/ individual contractor and subcontractor hours worked, deductions made, and wh347.pdf) in a printable and fillable projects (39,109 projects × 8 contractors actual wages paid to each worker on the format that automatically performs some and subcontractors per project = contract. Id. 5.5(a)(3)(i). Whenever the mathematical calculations. Individual 312,872 individual projects). Secretary of Labor has found under 29 contracting agencies determine any To yield the estimated number of CFR 5.5(a)(1)(iv) that the wages of any electronic submission options, because respondents, the Department estimates laborer or mechanic include the amount contractors submit the information that, on a per capita basis, each covered of any costs reasonably anticipated in directly to each contracting agency, not construction contractor annually works

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on an average of four projects subject to under the PRA under Control Number measurable costs on any private or Davis-Bacon Act provisions. Thus, 1215–0149. See 44 U.S.C. 3507(d); 5 public sector entity. 312,872 individual projects divided by CFR 1320.11. While much of the Furthermore, because the proposed 4 Davis-Bacon projects per contractor information provided to the OMB in rule will not impose any measurable equals 78,218 respondents. support of the information collection costs on employers, the Department The Department also estimates that a request appears in this preamble, certifies that it would not have a typical contractor or subcontractor on interested parties may obtain a copy of significant economic impact on a average submits 23 certified payrolls per the full supporting statement by sending substantial number of small entities. individual project. Thus, 312,872 a written request to the mail address Accordingly, the Department need not individual projects multiplied by 23 ADDRESSES shown in the section at the prepare an initial regulatory flexibility weekly responses equal 7,196,056 total beginning of this preamble or by visiting analysis under the Regulatory annual responses. the http://www.reginfo.gov/public/do/ The 7,196,056 responses multiplied Flexibility Act (5 U.S.C. 601 et seq.). PRAMain Web site. The Department has certified this by 54 minutes (estimated time to In addition to having an opportunity conclusion to the Chief Counsel for complete Form WH–347 or its to file comments with the Department, Advocacy of the Small Business equivalent) equal 388,587,024 minutes comments about the paperwork Administration. or 6,476,450 hours (rounded). implications of the proposed regulations Public Comments: Stakeholders have may be addressed to the OMB. V. Unfunded Mandates Reform Act expressed concerns about requiring Comments to the OMB should be submission of personal identifying directed to: Office of Information and This proposed rule has been reviewed information, particularly social security Regulatory Affairs, Attention OMB Desk in accordance with the Unfunded numbers and personal home addresses, Officer for the Employment Standards Mandates Reform Act of 1995 (UMRA). on the weekly payroll submissions. The Administration (ESA), Office of 2 U.S.C. 1501 et seq. For the purposes proposed regulations would remove the Management and Budget, Room 10235, of the UMRA, the Department certifies requirement for workers’ addresses and Washington, DC 20503, Telephone: that this rule does not impose any social security numbers to appear on 202–395–7316/Fax: 202–395–6974 federal mandate that may result in payrolls submitted to contracting (these are not toll-free numbers). increased expenditures by State, local, agencies; however, federal construction Please note that the current or tribal governments, or increased contractors will still be required to authorization for the Davis-Bacon expenditures by the private sector, of maintain this information in the payroll Certified Payroll information collection more than $100 million in any year. records the contractors maintain for expires April 30, 2009. On October 1, VI. Executive Order 13132 (Federalism) projects subject to Davis-Bacon Act 2008, the Department published a provisions. routine Paperwork Reduction Act notice The Department has reviewed this The Department seeks additional in the Federal Register seeking rule in accordance with the Executive public comments regarding the burdens comments on the existing Davis-Bacon Order on Federalism (Executive Order imposed by information collections information collection requirements that 13132, 64 FR 43255, Aug. 10, 1999). contained in this proposed rule. In are also the subject of this proposal. 73 This rule does not have federalism particular, the Department seeks FR 57153. Any comments submitted to implications as outlined in E.O. 13132. comments that: Evaluate whether the the October 1 request will be reviewed The rule does not have substantial proposed collection of information is in light of the current proposal. direct effects on the states, on the necessary for the proper performance of IV. Executive Order 12866; Small relationship between the national the functions of the agency, including government and the states, or on the whether the information will have Business Regulatory Enforcement distribution of power and practical utility; evaluate the accuracy Fairness Act; Regulatory Flexibility responsibilities among the various of the agency’s estimate of the burden of This proposed rule is not levels of government. the proposed collection of information, economically significant within the including the validity of the meaning of Executive Order 12866, or a VII. Executive Order 13175, Indian methodology and assumptions used; ‘‘major rule’’ under the Unfunded Tribal Governments enhance the quality, utility and clarity Mandates Reform Act or Section 801 of of the information to be collected; and the Small Business Regulatory The Department has reviewed this minimize the burden of the collection of Enforcement Fairness Act. rule under the terms of Executive Order information on those who are to The Department believes that a 13175 and determined it did not have respond, including through the use of reduction in the amount of information ‘‘tribal implications.’’ The rule does not appropriate automated, electronic, required on certified payrolls provided have ‘‘substantial direct effects on one mechanical, or other technological weekly under Davis-Bacon is a or more Indian tribes, on the collection techniques or other forms of reduction in regulatory compliance relationship between the federal information technology, e.g., permitting costs. While some contractors may have government and Indian tribes, or on the electronic submissions of responses. to slightly reconfigure their systems to distribution of power and Commenters may send their views about produce the revised version, most have responsibilities between the federal these information collections to the access to computerized systems that can government and Indian tribes.’’ As a Department in the same way as all other easily be revised to remove data. Those result, no tribal summary impact comments (e.g., through the contractors who currently use the statement has been prepared. regulations.gov Web site). optional WH Form will actually have an VIII. Effects on Families An agency may not conduct an overall decrease of total administrative information collection unless it has a costs. The Department certifies that this rule currently valid OMB approval and the Conclusion: The Department will not adversely affect the well-being Department has submitted the identified concludes that incorporating these of families, as discussed under section information collections contained in the changes into the Davis-Bacon 654 of the Treasury and General proposed rule to the OMB for review regulations will not impose any Government Appropriations Act, 1999.

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IX. Executive Order 13045, Protection Signed at Washington, DC. this 14th day of PART 5—LABOR STANDARDS of Children October, 2008. PROVISIONS APPLICABLE TO The Department has reviewed this Victoria A. Lipnic, CONTRACTS COVERING FEDERALLY rule under the terms of Executive Order Assistant Secretary, Employment Standards FINANCED AND ASSISTED 13045 and determined this action is not Administration. CONSTRUCTION (ALSO LABOR subject to E.O. 13045 because it is not Alexander J. Passantino, STANDARDS PROVISIONS economically significant as defined in Acting Administrator, Wage and Hour APPLICABLE TO NONCONSTRUCTION E.O. 12866 and it does not impact the Division. CONTRACTS SUBJECT TO THE environmental health or safety risks of CONTRACT WORK HOURS AND For the reasons set forth above, the children. SAFETY STANDARDS ACT) Department proposes to amend Title 29, X. Environmental Impact Assessment Parts 3 and 5 of the Code of Federal 3. The authority citation for part 5 is The Department has reviewed this Regulations as follows: revised to read as follows: rule in accordance with the requirements of the National PART 3—CONTRACTORS AND Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 1267; Reorganization Plan No. 14 of 1950, 5 Environmental Policy Act of 1969 SUBCONTRACTORS ON PUBLIC U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40 (NEPA), 42 U.S.C. 4321 et seq., the BUILDING OR PUBLIC WORK U.S.C. 3145; 40 U.S.C. 3148; 40 U.S.C. 3701 regulations of the Council of FINANCED IN WHOLE OR IN PART BY et seq.; and the laws listed in 5.1(a) of this Environmental Quality, 40 CFR 1500 et LOANS OR GRANTS FROM THE UNITED STATES part; Secretary’s Order 01–2008; and seq., and the Departmental NEPA Employment Standards Order No. 2001–01. procedures, 29 CFR part 11, and determined that this rule will not have 1. The authority citation for Part 3 is 6. Section 5.5 is amended by revising a significant impact on the quality of the proposed to be revised to read as paragraph (a)(3)(ii)(A) to read as follows: human environment. There is, thus, no follows: corresponding environmental Authority: R.S. 161, sec. 2, 48 Stat. 848; § 5.5 Contract provisions and related matters. assessment or an environmental impact Reorg. Plan No. 14 of 1950, 64 Stat. 1267; 5 statement. U.S.C. 301; 40 U.S.C. 3145; Secretary’s Order (a) * * * 01–2008; and Employment Standards Order XI. Executive Order 13211, Energy (3) * * * (ii)(A) The contractor shall No. 2001–01. Supply submit weekly for each week in which The Department has determined that 2. Section 3.3 is amended by revising any contract work is performed a copy this rule is not subject to Executive paragraph (b) to read as follows: of all payrolls to the (write in name of Order 13211. It will not have a appropriate federal agency) if the agency significant adverse effect on the supply, § 3.3 Weekly statement with respect to is a party to the contract, but if the distribution or use of energy. payment of wages. agency is not such a party, the * * * * * contractor will submit the payrolls to XII. Executive Order 12630, Constitutionally Protected Property (b) Each contractor or subcontractor the applicant, sponsor, or owner, as the Rights engaged in the construction, case may be, for transmission to the prosecution, completion, or repair of (write in name of agency). The payrolls The Department has determined that any public building or public work, or submitted shall set out accurately and this rule is not subject to Executive building or work financed in whole or completely all of the information Order 12630 because it does not involve in part by loans or grants from the required to be maintained under 29 CFR implementation of a policy ‘‘that has 5.5(a)(3)(i), except that social security taking implications’’ or that could United States, shall furnish each week numbers and home addresses shall not impose limitations on private property a statement with respect to the wages be included on any weekly transmittals. use. paid each of its employees engaged on work covered by this part 3 and part 5 The required weekly information may XIII. Executive Order 12988, Civil of this title during the preceding weekly be submitted in any form desired. Justice Reform Analysis payroll period. This statement shall be Optional Form WH–347 is available for The Department drafted and reviewed executed by the contractor or this purpose from the Wage and Hour this proposed rule in accordance with subcontractor or by an authorized Division Web site at http:// Executive Order 12988 and determined officer or employee of the contractor or www.dol.gov/esa/whd/forms/ that the rule will not unduly burden the subcontractor who supervises the wh347instr.htm or its successor site. federal court system. The rule was: (1) payment of wages, and shall be on the The prime contractor is responsible for Reviewed to eliminate drafting errors back of Form WH 347, ‘‘Payroll (For the submission of copies of payrolls by and ambiguities; (2) written to minimize Contractors Optional Use)’’ or on any all subcontractors. litigation; and (3) written to provide a form with identical wording. Copies of * * * * * clear legal standard for affected conduct Form WH 347 may be obtained from the [FR Doc. E8–24762 Filed 10–17–08; 8:45 am] and to promote burden reduction. Government contracting or sponsoring BILLING CODE 4510–27–P List of Subjects agency or from the Wage and Hour Division Web site at http:// 29 CFR Part 3 www.dol.gov/esa/whd/forms/ Government contracts, Labor, wh347instr.htm or its successor site. Paperwork, Law enforcement. * * * * * 29 CFR Part 5 Government contracts, Labor, Paperwork, Law enforcement.

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DEPARTMENT OF HOMELAND Public Participation and Request for Privacy Act SECURITY Comments Anyone can search the electronic Coast Guard We encourage you to participate in form of all comments received into any this rulemaking by submitting of our dockets by the name of the 33 CFR Part 165 comments and related materials. All individual submitting the comment (or comments received will be posted, signing the comment, if submitted on behalf of an association, business, labor [Docket No. USCG–2008–0752] without change, to http:// www.regulations.gov and will include union, etc.). You may review a Privacy any personal information you have Act notice regarding our public dockets RIN 1625–AA87 provided. We have an agreement with in the January 17, 2008 issue of the Federal Register (73 FR 3316). Security Zone; West Basin, Port the Department of Transportation to use Canaveral Harbor, Cape Canaveral, FL the Docket Management Facility. Public Meeting Submitting Comments We do not now plan to hold a public AGENCY: Coast Guard, DHS. meeting. But you may submit a request ACTION: Notice of proposed rulemaking. If you submit a comment, please for one to the Docket Management include the docket number for this Facility at the address under ADDRESSES SUMMARY: The Coast Guard proposes to rulemaking (USCG–2008–0752), explaining why one would be establish a security zone encompassing indicate the specific section of this beneficial. If we determine that one the navigable waters of the West Basin, document to which each comment would aid this rulemaking, we will hold Port Canaveral Harbor, Cape Canaveral, applies, and give the reason for each one at a time and place announced by Florida. This security zone would be comment. We recommend that you a later notice in the Federal Register. activated 4 hours prior to the scheduled include your name and a mailing Background and Purpose arrival of a cruise ship at the West address, an e-mail address, or a phone Basin. It is only enforceable during number in the body of your document The September 11, 2001, terrorist Maritime Security (MARSEC) Levels 2 so that we can contact you if we have attacks on the World Trade Center and 3 or when there is a specific questions regarding your submission. complex in New York and the Pentagon credible threat during MARSEC Level 1. You may submit your comments and in Arlington, Virginia, proved the This security zone would remain material by electronic means, mail, fax, devastating effects of subversive activity activated until the departure of all or delivery to the Docket Management on U.S. critical infrastructure. Since that cruise ships from the West Basin. Facility at the address under ADDRESSES; time, the Coast Guard has been taking DATES: Comments and related material but please submit your comments and action to ensure the security of maritime must reach the Coast Guard on or before material by only one means. If you critical infrastructure and key resources December 19, 2008. submit them by mail or delivery, submit throughout the country. Subversive activity towards cruise ADDRESSES: You may submit comments them in an unbound format, no larger 1 ships and their associated passengers identified by Coast Guard docket than 8 ⁄2 by 11 inches, suitable for and crew is of paramount concern to the number USCG–2008–0752 to the Docket copying and electronic filing. If you Coast Guard. Therefore, in order to Management Facility at the U.S. submit them by mail and would like to strengthen security and further control Department of Transportation. To avoid know that they reached the Facility, access to the West Basin, the Captain of duplication, please use only one of the please enclose a stamped, self-addressed the Port Jacksonville has decided, after following methods: postcard or envelope. We will consider all comments and material received consultation with the Northeast and (1) Online: http:// Eastern Central Florida Area Maritime www.regulations.gov. during the comment period. We may change this proposed rule in view of Security Committee and in cooperation (2) Mail: Docket Management Facility them. with the Canaveral Port Authority, to (M–30), U.S. Department of implement a security zone Transportation, West Building Ground Viewing Comments and Documents encompassing the West Basin. This Floor, Room W12–140, 1200 New Jersey security zone is only enforceable during Avenue, SE., Washington, DC 20590– To view comments, as well as MARSEC Levels 2 and 3 or when there 0001. documents mentioned in this preamble is a specified credible threat during (3) Hand delivery: Same as mail as being available in the docket, go to MARSEC Level 1. address above, between 9 a.m. and 5 http://www.regulations.gov at any time. As reflected in 33 CFR 101.105, p.m., Monday through Friday, except Enter the docket number for this Maritime Security (MARSEC) level Federal holidays. The telephone number rulemaking (USCG–2008–0752) in the means the level set to reflect the is 202–366–9329. Search Documents box, and click ‘‘Go prevailing threat environment to the (4) Fax: 202–493–2251. >>.’’ You may also visit either the marine elements of the national Docket Management Facility in Room transportation system, including ports, FOR FURTHER INFORMATION CONTACT: If W12–140 on the ground floor of the vessels, facilities, and critical assets and you have questions on this proposed Department of Transportation West infrastructure located on or adjacent to rule, call Lieutenant Commander Mark Building, 1200 New Jersey Avenue, SE., waters subject to the jurisdiction of the Gibbs at Coast Guard Sector Jacksonville Washington, DC 20590, between 9 a.m. U.S. The higher the level number, the Prevention Department. Contact and 5 p.m., Monday through Friday, greater the threat: telephone is 904–564–7563. If you have except Federal holidays; or the Coast questions on viewing or submitting Guard Sector Jacksonville Prevention MARSEC Level 1 means the level for which material to the docket, call Renee V. minimum appropriate protective security Department, 4200 Ocean St., Atlantic measures shall be maintained at all times. Wright, Program Manager, Docket Beach, FL 32233–2416 between 7:30 Operations, telephone 202–366–9826. MARSEC Level 2 means the level for which a.m. and 5 p.m., Monday through appropriate additional protective security SUPPLEMENTARY INFORMATION: Friday, except Federal holidays. measures shall be maintained for a period of

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time as a result of heightened risk of a and benefits under section 6(a)(3) of that they can better evaluate its effects on transportation security incident. Order. The Office of Management and them and participate in the rulemaking. MARSEC Level 3 means the level for which Budget has not reviewed it under that If the proposed rule would affect your further specific protective security measures Order. small business, organization, or shall be maintained for a limited period of It is not a significant action because time when a transportation security incident governmental jurisdiction and you have is probable or imminent, although it may not this security zone would be activated 4 questions concerning its provisions or be possible to identify the specific target. hours prior to the scheduled arrival of options for compliance, please contact a cruise ship at the West Basin. It is only Lieutenant Commander Mark Gibbs at As specified in 33 CFR 101.300, the enforceable during MARSEC Levels 2 Coast Guard Sector Jacksonville Captain of the Port will communicate and 3 or when there is not a specific Prevention Department. Contact any changes in the MARSEC levels credible threat during MARSEC Level 1. telephone is 904–564–7563. The Coast through a local Broadcast Notice to Once activated, this security zone Guard will not retaliate against small Mariners, an electronic means, if would remain activated until the entities that question or complain about available, or as detailed in the Area departure of all cruise ships from the this proposed rule or any policy or Maritime Security Plan developed West Basin or when the COTP action of the Coast Guard. under 46 U.S.C. 70103(b). determines there is a specific credible Collection of Information Discussion of Proposed Rule threat during MARSEC Level 1. This security zone would be wholly confined This proposed rule would call for no The security zone area includes all within the existing West Basin and new collection of information under the waters of the West Basin, Port Canaveral would not impede traffic transiting from Paperwork Reduction Act of 1995 (44 Harbor, Cape Canaveral, FL northwest of the Banana River to the Atlantic Ocean. U.S.C. 3501–3520). an imaginary line between two points: 28°24′57.88″ N, 080°37′25.69″ W to Small Entities Federalism ° ′ ″ ° ′ ″ 28 24 37.48 N, 080 37 34.03 W. When Under the Regulatory Flexibility Act A rule has implications for federalism the security zone is activated, and thus (5 U.S.C. 601–612), we have considered under Executive Order 13132, subject to enforcement, entry is whether this proposed rule would have Federalism, if it has a substantial direct prohibited unless specifically a significant economic impact on a effect on State or local governments and authorized by the Captain of the Port substantial number of small entities. would either preempt State law or Jacksonville or his designated The term ‘‘small entities’’ comprises impose a substantial direct cost of representative. small businesses, not-for-profit compliance on them. We have analyzed This security zone would be activated organizations that are independently this proposed rule under that Order and 4 hours before the scheduled arrival of owned and operated and are not have determined that it does not have a cruise ship at the West Basin. It is only dominant in their fields, and implications for federalism. enforceable during MARSEC Levels 2 governmental jurisdictions with and 3 or when the COTP determines populations of less than 50,000. Unfunded Mandates Reform Act there is a specific credible threat during The Coast Guard certifies under 5 The Unfunded Mandates Reform Act MARSEC Level 1. This security zone U.S.C. 605(b) that this proposed rule of 1995 (2 U.S.C. 1531–1538) requires would remain activated until the would not have a significant economic Federal agencies to assess the effects of departure of all cruise ships from the impact on a substantial number of small their discretionary regulatory actions. In West Basin or when the credible threat entities. This security zone would be particular, the Act addresses actions no longer exists. The restriction of activated 4 hours prior to the scheduled that may result in the expenditure by a vessel movements within this security arrival of a cruise ship at the West State, local, or tribal government, in the zone is intended to prohibit the Basin. It is only enforceable during aggregate, or by the private sector of movement of all vessels not operated by MARSEC Levels 2 and 3 or when there $100,000,000 or more in any one year. a local, State, or Federal law is a specific credible threat during Though this proposed rule would not enforcement organization unless MARSEC Level 1. Once activated, this result in such an expenditure, we do specifically authorized by the Captain of security zone would remain activated discuss the effects of this rule elsewhere the Port, or his designated until the departure of all cruise ships in this preamble. representative. The public would be from the West Basin. This security zone notified when the security zone is would be wholly confined within the Taking of Private Property activated by the display of a red flag on existing West Basin and would not This proposed rule would not effect a a 50-foot pole located at the east end of impede traffic transiting from the taking of private property or otherwise Cruise Ship terminal 10 that is visible Banana River to the Atlantic Ocean. have taking implications under from all approaches to the zone. If you think that your business, Executive Order 12630, Governmental organization, or governmental Actions and Interference with Regulatory Analyses jurisdiction qualifies as a small entity Constitutionally Protected Property We developed this proposed rule after and that this rule would have a Rights. considering numerous statutes and significant economic impact on it, executive orders related to rulemaking. please submit a comment (see Civil Justice Reform Below we summarize our analyses ADDRESSES) explaining why you think it This proposed rule meets applicable based on 13 of these statutes or qualifies and how and to what degree standards in sections 3(a) and 3(b)(2) of executive orders. this rule would economically affect it. Executive Order 12988, Civil Justice Reform, to minimize litigation, Regulatory Planning and Review Assistance for Small Entities eliminate ambiguity, and reduce This proposed rule is not a significant Under section 213(a) of the Small burden. regulatory action under section 3(f) of Business Regulatory Enforcement Executive Order 12866, Regulatory Fairness Act of 1996 (Pub. L. 104–121), Protection of Children Planning and Review, and does not we want to assist small entities in We have analyzed this proposed rule require an assessment of potential costs understanding this proposed rule so that under Executive Order 13045,

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Protection of Children from Environment authorized by the COTP or the COTP’s Environmental Health Risks and Safety We have analyzed this proposed rule designated representative. Any person Risks. This rule is not an economically under Department of Homeland or vessel authorized to enter the security significant rule and would not create an Security Management Directive 5100.1 zone must operate in strict conformance environmental risk to health or risk to and Commandant Instruction with any direction given by the COTP safety that might disproportionately M16475.lD, which guide the Coast or a designated representative and leave affect children. Guard in complying with the National the security zone immediately if so ordered. Indian Tribal Governments Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and (3) The public will be notified when This proposed rule does not have have made a preliminary determination the security zone is activated by the tribal implications under Executive under the Instruction that this action is display of a red flag on a 50-foot pole Order 13175, Consultation and not likely to have a significant effect on located at the east end of Cruise Ship Coordination with Indian Tribal the human environment. An terminal 10. This red flag will be Governments, because it would not have environmental analysis checklist lowered when the security zone is a substantial direct effect on one or supporting this preliminary deactivated. more Indian tribes, on the relationship determination is available in the docket (c) Definitions. The following between the Federal Government and where indicated under ADDRESSES. We definition applies to this section: Indian tribes, or on the distribution of seek any comments or information that Designated representative means power and responsibilities between the may lead to the discovery of a Coast Guard Patrol Commanders Federal Government and Indian tribes. significant environmental impact from including Coast Guard coxswains, petty We invite your comments on how this this proposed rule. officers and other officers operating proposed rule might impact tribal Coast Guard vessels, and federal, state, governments, even if that impact may List of Subjects in 33 CFR Part 165 and local law enforcement officers not constitute a ‘‘tribal implication’’ Harbors, Marine safety, Navigation designated by or assisting the COTP in under the Order. (water), Reporting and recordkeeping the enforcement of the security zone. (d) Captain of the Port Contact Energy Effects requirements, Security measures, Waterways. Information. If you have questions about We have analyzed this proposed rule For the reasons discussed in the this regulation, please contact the Sector under Executive Order 13211, Actions preamble, the Coast Guard proposes to Command Center at (904) 564–7513. Concerning Regulations That amend 33 CFR part 165 as follows: (e) Enforcement periods. This section Significantly Affect Energy Supply, will only be subject to enforcement Distribution, or Use. We have PART 165—REGULATED NAVIGATION when the security zone described in determined that it is not a ‘‘significant AREAS AND LIMITED ACCESS AREAS paragraph (a) is activated as specified in paragraph (b)(1) of this section. energy action’’ under that order because 1. The authority citation for part 165 it is not a ‘‘significant regulatory action’’ continues to read as follows: Dated: September 29, 2008. under Executive Order 12866 and is not Paul F. Thomas, Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. likely to have a significant adverse effect Captain, U.S. Coast Guard, Captain of the on the supply, distribution, or use of Chapter 701; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Port Jacksonville. energy. The Administrator of the Office Stat. 2064; Department of Homeland Security [FR Doc. E8–24808 Filed 10–17–08; 8:45 am] of Information and Regulatory Affairs Delegation No. 0170.1. BILLING CODE 4910–15–P has not designated it as a significant energy action. Therefore, it does not 2. Add § 165.777 to read as follows: require a Statement of Energy Effects § 165.777 Security Zone; West Basin, Port FEDERAL COMMUNICATIONS under Executive Order 13211. Canaveral Harbor, Cape Canaveral, Florida. COMMISSION Technical Standards (a) Regulated Area. The following area is a security zone: All waters of the West 47 CFR Part 73 The National Technology Transfer Basin of Port Canaveral Harbor and Advancement Act (NTTAA) (15 [DA 08–2117; MB Docket No. 08–194; RM– northwest of an imaginary line between 11488] U.S.C. 272 note) directs agencies to use two points: 28°24′57.88″ N, voluntary consensus standards in their 080°37′25.69″ W to 28°24′37.48″ N, Television Broadcasting Services; regulatory activities unless the agency 080°37′34.03″ W. Huntsville, AL provides Congress, through the Office of (b) Requirement. (1) This security Management and Budget, with an zone will be activated 4 hours prior to AGENCY: Federal Communications explanation of why using these the scheduled arrival of a cruise ship at Commission. standards would be inconsistent with the West Basin of Port Canaveral Harbor ACTION: Proposed rule. applicable law or otherwise impractical. during MARSEC Levels 2 and 3 or when Voluntary consensus standards are the Captain of the Port Jacksonville SUMMARY: The Commission requests technical standards (e.g., specifications (COTP) determines there is a specified comments on a channel substitution of materials, performance, design, or credible threat during MARSEC Level 1. proposed by Local TV Alabama License, operation; test methods; sampling This security zone will not be LLC (‘‘Local TV’’), the licensee of station procedures; and related management deactivated until the departure of all WHNT–DT, DTV channel 19, systems practices) that are developed or cruise ships from the West Basin. The Huntsville, Alabama. Local TV requests adopted by voluntary consensus zone is subject to enforcement when it the substitution of DTV channel 46 for standards bodies. is activated. channel 19 at Huntsville. This proposed rule does not use (2) Under general security zone DATES: Comments must be filed on or technical standards. Therefore, we did regulations of 33 CFR 165.33, no vessel before November 19, 2008, and reply not consider the use of voluntary or person may enter or navigate within comments on or before December 4, consensus standards. the regulated area unless specifically 2008.

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ADDRESSES: Federal Communications For information regarding proper FOR FURTHER INFORMATION CONTACT: Commission, Office of the Secretary, filing procedures for comments, see 47 Shaun A. Maher, [email protected], 445 12th Street, SW., Washington, DC CFR 1.415 and 1.420. Media Bureau, (202) 418–1600. 20554. In addition to filing comments List of Subjects in 47 CFR Part 73 SUPPLEMENTARY INFORMATION: This is a with the FCC, interested parties should synopsis of the Commission’s Notice of serve counsel for petitioner as follows: Television, Television broadcasting. Proposed Rule Making, MB Docket No. Scott S. Patrick, Esq., Dow Lohnes For the reasons discussed in the 08–104, adopted September 25, 2008, PLLC, 1200 New Hampshire Avenue, preamble, the Federal Communications and released October 1, 2008. The full NW., Suite 800, Washington, DC Commission proposes to amend 47 CFR text of this document is available for 20036—6802. Part 73 as follows: public inspection and copying during FOR FURTHER INFORMATION CONTACT: normal business hours in the FCC’s PART 73—RADIO BROADCAST David J. Brown, [email protected], Reference Information Center at Portals SERVICES Media Bureau, (202) 418–1600. II, CY–A257, 445 12th Street, SW., Washington, DC 20554. This document SUPPLEMENTARY INFORMATION: This is a 1. The authority citation for part 73 continues to read as follows: will also be available via ECFS (http:// synopsis of the Commission’s Notice of www.fcc.gov/cgb/ecfs/). (Documents Proposed Rule Making, MB Docket No. Authority: 47 U.S.C. 154, 303, 334, 336. will be available electronically in ASCII, 08–194, adopted September 12, 2008, § 73.622 [Amended] Word 97, and/or Adobe Acrobat.) This and released September 23, 2008. The document may be purchased from the full text of this document is available for 2. Section 73.622(i), the DTV Table of Allotments under Alabama, is amended Commission’s duplicating contractor, public inspection and copying during Best Copy and Printing, Inc., 445 12th normal business hours in the FCC’s by adding channel 46 and removing channel 19 at Huntsville. Street, SW., Room CY–B402, Reference Information Center at Portals Washington, DC 20554, telephone 1– II, CY–A257, 445 12th Street, SW., Federal Communications Commission. 800–478–3160 or via e-mail http:// Washington, DC 20554. This document Clay C. Pendarvis, www.BCPIWEB.com. To request this will also be available via ECFS (http:// Associate Chief, Video Division, Media document in accessible formats www.fcc.gov/cgb/ecfs/). (Documents Bureau. (computer diskettes, large print, audio will be available electronically in ASCII, [FR Doc. E8–24911 Filed 10–17–08; 8:45 am] recording, and Braille), send an e-mail Word 97, and/or Adobe Acrobat.) This BILLING CODE 6712–01–P to [email protected] or call the document may be purchased from the Commission’s Consumer and Commission’s duplicating contractor, Governmental Affairs Bureau at (202) Best Copy and Printing, Inc., 445 12th FEDERAL COMMUNICATIONS 418–0530 (voice), (202) 418–0432 Street, SW., Room CY–B402, COMMISSION (TTY). This document does not contain Washington, DC 20554, telephone 1– proposed information collection 800–478–3160 or via e-mail http:// 47 CFR Part 73 requirements subject to the Paperwork www.BCPIWEB.com. To request this Reduction Act of 1995, Public Law 104– document in accessible formats [DA 08–1499; MB Docket No. 08–104; RM– 13. In addition, therefore, it does not (computer diskettes, large print, audio 11442] contain any proposed information recording, and Braille), send an e-mail collection burden ‘‘for small business Television Broadcasting Services; to [email protected] or call the concerns with fewer than 25 Danville, KY Commission’s Consumer and employees,’’ pursuant to the Small Governmental Affairs Bureau at (202) Business Paperwork Relief Act of 2002, 418–0530 (voice), (202) 418–0432 AGENCY: Federal Communications Commission. Public Law 107–198, see 44 U.S.C. (TTY). This document does not contain 3506(c)(4). proposed information collection ACTION: Proposed rule. requirements subject to the Paperwork Provisions of the Regulatory Reduction Act of 1995, Public Law 104– SUMMARY: The Commission requests Flexibility Act of 1980 do not apply to 13. In addition, therefore, it does not comments on a channel substitution this proceeding. Members of the public contain any proposed information proposed by WDKY Licensee, LLC should note that from the time a Notice collection burden ‘‘for small business (‘‘WDKY’’), the licensee of WDKY–DT, of Proposed Rule Making is issued until concerns with fewer than 25 post-transition DTV channel 4, Danville, the matter is no longer subject to employees,’’ pursuant to the Small Kentucky. WDKY requests the Commission consideration or court Business Paperwork Relief Act of 2002, substitution of DTV channel 31 for post- review, all ex parte contacts are Public Law 107–198, see 44 U.S.C. transition DTV channel 4 at Fort Worth. prohibited in Commission proceedings, 3506(c)(4). DATES: Comments must be filed on or such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for Provisions of the Regulatory before November 19, 2008, and reply comments on or before December 4, rules governing permissible ex parte Flexibility Act of 1980 do not apply to contacts. this proceeding. Members of the public 2008. For information regarding proper should note that from the time a Notice ADDRESSES: Federal Communications filing procedures for comments, see 47 of Proposed Rule Making is issued until Commission, Office of the Secretary, CFR 1.415 and 1.420. the matter is no longer subject to 445 12th Street, SW., Washington, D.C. Commission consideration or court 20554. In addition to filing comments List of Subjects in 47 CFR Part 73 review, all ex parte contacts are with the FCC, interested parties should prohibited in Commission proceedings, serve counsel for petitioner as follows: Television, Television broadcasting. such as this one, which involve channel Clifford M. Harrington, Esq., Pillsbury For the reasons discussed in the allotments. See 47 CFR 1.1204(b) for Winthrop Shaw Pitman, LLP, 2300 N preamble, the Federal Communications rules governing permissible ex parte Street, NW., Washington, DC 20037– Commission proposes to amend 47 CFR contacts. 1128. Part 73 as follows:

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PART 73—RADIO BROADCAST Reference Information Center at Portals channel 38 and removing channel 15 at SERVICES II, CY–A257, 445 12th Street, SW., Omaha. Washington, DC 20554. This document 1. The authority citation for part 73 Federal Communications Commission. will also be available via ECFS (http:// Clay C. Pendarvis, continues to read as follows: www.fcc.gov/cgb/ecfs/). (Documents Associate Chief, Video Division, Media Authority: 47 U.S.C. 154, 303, 334, 336. will be available electronically in ASCII, Bureau. Word 97, and/or Adobe Acrobat.) This § 73.622(i) [Amended] [FR Doc. E8–24924 Filed 10–17–08; 8:45 am] document may be purchased from the 2. Section 73.622(i), the Post- Commission’s duplicating contractor, BILLING CODE 6712–01–P Transition Table of DTV Allotments Best Copy and Printing, Inc., 445 12th under Kentucky, is amended by adding Street, SW., Room CY–B402, channel 31 and removing channel 4 at Washington, DC 20554, telephone 1– DEPARTMENT OF DEFENSE Danville. 800–478–3160 or via e-mail http:// Defense Acquisition Regulations Federal Communications Commission. www.BCPIWEB.com. To request this System Clay C. Pendarvis, document in accessible formats Associate Chief, Video Division, Media (computer diskettes, large print, audio 48 CFR Parts 204 and 217 Bureau. recording, and Braille), send an e-mail [FR Doc. E8–24913 Filed 10–17–08; 8:45 am] to [email protected] or call the RIN 0750–AG05 BILLING CODE 6712–01–P Commission’s Consumer and Governmental Affairs Bureau at (202) Defense Federal Acquisition 418–0530 (voice), (202) 418–0432 Regulation Supplement; Clarification FEDERAL COMMUNICATIONS (TTY). This document does not contain of Central Contractor Registration and COMMISSION proposed information collection Procurement Instrument Identification requirements subject to the Paperwork Data Requirements (DFARS Case 47 CFR Part 73 Reduction Act of 1995, Public Law 104– 2008–D010) [DA 08–1496; MB Docket No. 08–115; RM– 13. In addition, therefore, it does not AGENCY: Defense Acquisition 11445] contain any proposed information Regulations System, Department of collection burden ‘‘for small business Defense (DoD). Television Broadcasting Services; concerns with fewer than 25 ACTION: Proposed rule with request for Omaha, NE employees,’’ pursuant to the Small comments. Business Paperwork Relief Act of 2002, AGENCY: Federal Communications Public Law 107–198, see 44 U.S.C. SUMMARY: DoD is proposing to amend Commission. 3506(c)(4). the Defense Federal Acquisition ACTION: Proposed rule. Provisions of the Regulatory Regulation Supplement (DFARS) to SUMMARY: The Commission requests Flexibility Act of 1980 do not apply to address requirements for ensuring the comments on a channel substitution this proceeding. Members of the public accuracy of contractor information in proposed by Mitts Telecasting Company should note that from the time a Notice the Central Contractor Registration (‘‘Mitts’’), the licensee of KXVO–DT, of Proposed Rule Making is issued until (CCR) database and in contract post-transition DTV channel 15, Omaha, the matter is no longer subject to documents. Additionally, the proposed Nebraska. Mitts requests the Commission consideration or court rule clarifies requirements for proper substitution of DTV channel 38 for post- review, all ex parte contacts are assignment of procurement instrument transition DTV channel 15 at Omaha. prohibited in Commission proceedings, identification numbers. such as this one, which involve channel DATES: Comments must be filed on or DATES: Comments on the proposed rule allotments. See 47 CFR 1.1204(b) for before November 19, 2008, and reply should be submitted in writing to the rules governing permissible ex parte comments on or before December 4, address shown below on or before contacts. 2008. December 19, 2008, to be considered in For information regarding proper the formation of the final rule. ADDRESSES: Federal Communications filing procedures for comments, see 47 ADDRESSES: You may submit comments, Commission, Office of the Secretary, CFR 1.415 and 1.420. identified by DFARS Case 2008–D010, 445 12th Street, SW., Washington, DC using any of the following methods: 20554. In addition to filing comments List of Subjects in 47 CFR Part 73 Federal eRulemaking Portal: http:// with the FCC, interested parties should Television, Television broadcasting. www.regulations.gov. Follow the serve counsel for petitioner as follows: instructions for submitting comments. Michael Basile, Esq., Dow Lohnes, For the reasons discussed in the E-mail: [email protected]. Include PLLC, 1200 New Hampshire Avenue, preamble, the Federal Communications DFARS Case 2008–D010 in the subject NW., Suite 800, Washington, DC 20036– Commission proposes to amend 47 CFR part 73 as follows: line of the message. 6802. Fax: 703–602–7887. FOR FURTHER INFORMATION CONTACT: PART 73—RADIO BROADCAST Mail: Defense Acquisition Regulations Shaun A. Maher, [email protected], SERVICES System, Attn: Mr. Julian Thrash, OUSD Media Bureau, (202) 418–1600. (AT&L) DPAP (DARS), IMD 3D139, 3062 SUPPLEMENTARY INFORMATION: This is a 1. The authority citation for part 73 Defense Pentagon, Washington, DC synopsis of the Commission’s Notice of continues to read as follows: 20301–3062. Proposed Rule Making, MB Docket No. Authority: 47 U.S.C. 154, 303, 334, 336. Hand Delivery/Courier: Defense 08–115, adopted September 25, 2008, Acquisition Regulations System, Crystal and released October 1, 2008. The full § 73.622 [Amended] Square 4, Suite 200A, 241 18th Street, text of this document is available for 2. Section 73.622(i), the Post- Arlington, VA 22202–3402. public inspection and copying during Transition Table of DTV Allotments Comments received generally will be normal business hours in the FCC’s under Nebraska, is amended by adding posted without change to http://

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www.regulations.gov, including any C. Paperwork Reduction Act the applicable contract modification as personal information provided. The Paperwork Reduction Act does soon as practicable after the contractor has updated its registration information. FOR FURTHER INFORMATION CONTACT: Mr. not apply, because the proposed rule (2) On contract award documents, use Julian Thrash, 703–602–0310. does not impose any information collection requirements that require the the contractor’s legal or ‘‘doing business SUPPLEMENTARY INFORMATION: approval of the Office of Management as’’ name and address information as recorded in the CCR database at the time A. Background and Budget under 44 U.S.C. 3501, et seq. of award. Modifications for novations, This proposed rule reinforces name changes, or address changes shall requirements for use and maintenance List of Subjects in 48 CFR Parts 204 and reflect the information recorded in the of accurate contractor information, to 217 CCR database at the time the permit proper identification and Government procurement. modification is issued. See PGI tracking of contract data through DoD’s 204.1103 for additional requirements business processes. The proposed Michele P. Peterson, relating to use of information in the CCR changes address requirements for— Editor, Defense Acquisition Regulations database. System. • Ensuring that contract documents * * * * * contain contractor information that is Therefore, DoD proposes to amend 48 3. Section 204.7003 is amended by accurate and consistent with the CFR Parts 204 and 217 as follows: revising paragraphs (a)(2), (a)(3)(iii), information in the CCR database; 1. The authority citation for 48 CFR (a)(3)(viii), and (b) to read as follows: Parts 204 and 217 continues to read as • Confirming the accuracy of a follows: 204.7003 Basic PII number. contractor’s CCR information before (a) * * * exercising a contract option; and Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. (2) Positions 7 through 8. The seventh • Proper assignment of procurement and eighth positions are the last two instrument identification numbers. PART 204—ADMINISTRATIVE digits of the fiscal year in which the This rule was subject to Office of MATTERS contract instrument is awarded. Management and Budget review under (3) * * * 2. Section 204.1103 is amended by Executive Order 12866, dated (iii) Contracts of all types except redesignating paragraph (e) as paragraph September 30, 1993. indefinite delivery contracts, facilities (3), and by adding new paragraphs (1) contracts, sales contracts, and contracts B. Regulatory Flexibility Act and (2) to read as follows: placed with or through other DoD does not expect this proposed 204.1103 Procedures. Government departments or agencies or against contracts placed by such rule to have a significant economic (1) When making a determination to departments or agencies outside the impact on a substantial number of small exercise an option, or at any other time, DoD. Do not use this code for contracts entities within the meaning of the if the contractor is no longer registered or agreements with provisions for orders Regulatory Flexibility Act, 5 U.S.C. 601, in the Central Contractor Registration or calls–C. et seq., because the proposed rule (CCR) database or if the information in reinforces existing requirements for the CCR database is no longer current or * * * * * accuracy of contract information. consistent with an applicable contract (viii) Agreements, including basic Therefore, DoD has not performed an document— agreements and loan agreements, but initial regulatory flexibility analysis. (i) Confirm the accuracy of the excluding blanket purchase agreements, DoD invites comments from small information in the CCR database; and basic ordering agreements, and leases. businesses and other interested parties. (ii)(A) If the information in the CCR Do not use this code for contracts or DoD also will consider comments from database is current, accurate, and agreements with provisions for orders or small entities concerning the affected complete, modify contract documents as calls–H. DFARS subparts in accordance with 5 necessary; or * * * * * U.S.C. 610. Such comments should be (B) If the information in the CCR (b) Illustration of PII number. The submitted separately and should cite database is not current, accurate, and following illustrates a properly DFARS Case 2008–D010. complete, exercise the option or issue configured PII number—

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PART 217—SPECIAL CONTRACTING also proposes to prohibit a catcher voluntarily submitted by the commenter METHODS vessel from landing a cumulative may be publicly accessible. Do not amount of unprocessed pollock from submit Confidential Business 4. Section 217.207 is added to read as any Gulf of Alaska (GOA) reporting area Information or otherwise sensitive or follows: that exceeds 300,000 lb multiplied by protected information. 217.207 Exercise of options. the number of calendar days the pollock NMFS will accept anonymous fishery is open to directed fishing in a comments (enter N/A in the required (c) In addition to the requirements at season. The objective of this proposed fields, if you wish to remain FAR 17.207(c), exercise an option only rule is to prevent catcher vessels from anonymous). Attachments to electronic after determining that the contractor’s circumventing the intent of current trip comments will be accepted in Microsoft information in the Central Contractor limit regulations when making Word, Excel, WordPerfect, or Adobe Registration database is current, deliveries of pollock. Amending the portable document file (pdf) formats accurate, and complete and is accurately current trip limit regulation to limit only. reflected in the contract document. legal opportunities for a vessel to exceed Copies of the Categorical Exclusion [FR Doc. E8–24486 Filed 10–17–08; 8:45 am] 300,000 lb of pollock caught in a day, (CE) and the Regulatory Impact Review/ BILLING CODE 5001–08–P would continue to disperse catches of Initial Regulatory Flexibility Analysis pollock in a manner that is consistent (RIR/IRFA) prepared for this action are with the intent of Steller sea lion available by mail from NMFS, Alaska DEPARTMENT OF COMMERCE protection measures in the GOA. Region, P.O. Box 21668, Juneau, AK DATES: Written comments must be 99802–1668, Attn: Ellen Sebastian, National Oceanic and Atmospheric received by November 19, 2008. Records Officer; in person at NMFS, Administration Alaska Region, 709 West 9th Street, ADDRESSES: Send comments to Sue Room 420A, Juneau, AK; or via the Salveson, Assistant Regional 50 CFR Part 679 Internet at the NMFS Alaska Region Administrator, Sustainable Fisheries website at http:// Division, Alaska Region, NMFS, Attn: [Docket No. 080310410–8415–01] alaskafisheries.noaa.gov. Ellen Sebastian. You may submit RIN 0648–AW54 comments, identified by ‘‘RIN 0648– FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907–586–7442. Fisheries of the Exclusive Economic AW54,’’ by any one of the following methods: SUPPLEMENTARY INFORMATION: Zone Off Alaska; Revisions to the • Pollock Trip Limit Regulations in the Electronic Submissions: Submit all The North Pacific Fishery Gulf of Alaska electronic public comments via the Management Council (Council) Federal eRulemaking Portal website at prepared the Fishery Management Plan AGENCY: National Marine Fisheries http://www.regulations.gov. for Groundfish of the Gulf of Alaska Service (NMFS), National Oceanic and • Mail: P. O. Box 21668, Juneau, AK (FMP), pursuant to the Magnuson– Atmospheric Administration (NOAA), 99802. Stevens Fishery Conservation and Commerce. • Fax: (907) 586–7557. Management Act (Magnuson–Stevens • ACTION: Proposed rule; request for Hand delivery to the Federal Act), 16 U.S.C. 1801 et seq. Regulations comments. Building: 709 West 9th Street, Room implementing the FMP appear at 50 420A, Juneau, AK. CFR part 679. General regulations that SUMMARY: NMFS proposes to revise All comments received are a part of pertain to U.S. fisheries appear at pollock trip limit regulations to prohibit the public record and will generally be subpart H of 50 CFR part 600. NMFS a catcher vessel from landing more than posted to http://www.regulations.gov manages the Gulf of Alaska (GOA) 300,000 lb (136 mt) of unprocessed without change. All Personal Identifying groundfish fisheries under the FMP. The pollock during a calendar day. NMFS Information (e.g., name, address) FMP also authorizes the use of fishery

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management measures to protect marine sufficient time to determine whether a industry voluntarily restrict catches to mammals, particularly for species that daily catch limit had been reached to 300,000 lb per vessel, per day. have been listed as endangered or prevent further fishing on that same Between October and December of threatened under the Endangered day. Catch data was reported by paper 2007 the Council again received Species Act (ESA). fish tickets, that could take several days testimony from vessel owners and Regulations that establish current trip to become available to NMFS. This reviewed updated catch data from limits at § 679.7(b)(2), were delay also prevented the use of a weekly NMFS. The Council concluded that the implemented over several years in landing limit. Presently, when a landing current pollock trip limit continued to response to ESA consultations on Steller occurs, it is quickly reported be ineffective in dispersing catch of sea lions. The 1999 Steller sea lion electronically and made available to pollock among various reporting areas protection measures, implemented by NMFS allowing for a much shorter turn of the GOA. Representatives from the emergency interim rule (64 FR 3437, over for enforcement of daily landing trawl catcher vessel sector reported that January 22, 1999), set trip limits for the limits. voluntary efforts to control pollock Western and Central GOA. In 2001, Under the current regulations, pollock catches were not effective because NMFS issued a Biological Opinion trip limits are to be apply to any catcher vessels in the Western GOA were (BiOp) that determined the groundfish vessel that retains pollock in the GOA circumventing the intent of the trip fisheries managed under the protection at any time during a fishing trip. Trawl limit by making more than one trip per measures were unlikely to jeopardize catcher vessels are the only vessels that calendar day, delivering more than the continued existence of the western may fish in the directed pollock fishery 300,000 lb to a tender in a day, and distinct population segment of Steller and have sufficient catching and towing cod ends to a tender that sea lions or adversely modify or destroy retention capacity to be affected by GOA exceeded 300,000 lb at the point of designated critical habitat. After the pollock trip limits. For the purpose of landing. Catch data prepared by NMFS BiOp was issued, additional rulemaking calculating retained catch, a fishing trip for the RIR/IRFA for this proposed rule implemented the current pollock trip is defined at § 679.2 as ending at the confirmed that the trip limit regulation limits across the entire GOA (67 FR 956, time that all fish or fish products are has not been fully effective because January 8, 2002 and 68 FR 204, January offloaded. An offload is a partial or vessels in the GOA pollock fishery 2, 2003). complete landing of unprocessed catch exceeded landings of 300,000 lb in a Pollock trip limits were intended to from a catcher vessel to a processing day, 241 times from 1999 to 2006. protect Steller sea lions in part by In December 2007, the Council plant or tender. A vessel operator would temporally dispersing the pollock recommended adding two new not be in compliance with current fishery in the GOA, thus reducing provisions to the current GOA trip limit regulations for pollock trip limits if the competition for prey species between regulation to resolve this problem. The the fishery and Steller sea lions. Trip amount of pollock retained onboard a first provision would add a daily limits were to accomplish this by vessel exceeded 300,000 lb during a landing limit at § 679.7(b)(2)(ii) for decreasing daily pollock catches in fishing trip between offloads. pollock by prohibiting a trawl catcher areas that were in close proximity to In 2005, the Council reviewed trawl vessel from landing more than 300,000 foraging Steller sea lions. landing data that demonstrated current lb of unprocessed pollock during a Trip limits regulate the amount of a pollock trip limits were not completely calendar day. The second provision species that may be landed by a vessel effective at restricting catches of pollock would add a seasonal landing limit at during a fishing trip. Trip limits often to 300,000 lb per day. The Council also § 679.7(b)(2)(iii), that would prohibit a are specific to a management, regulatory received testimony from industry and a trawl catcher vessel from landing a or reporting area; fishing gear type or report from Council staff at their cumulative amount of pollock that programs (such as exempted fishing or February 2005 meeting describing how exceeds 300,000 lb multiplied by the the Community Development Quota some trawl catcher vessels were number of calendar days that the Program); and specific intervals of time completing multiple trips in a day, or directed fishery is open. during a year or season. offloading to tenders to increase their The daily landing limit would In developing the current trip limits, daily pollock catch. If a vessel partially close the loophole in NMFS analyzed several alternative completed two fishing trips of 300,000 regulations that has allowed vessel protection measures for temporally lb each in a day, or delivered 300,000 operators to exceed the trip limit. The dispersing daily catches of pollock and lb to a tender and landed 300,000 lb in combination of a daily landing limit and concluded that the most effective and the same a day to a processor, that a trip limit, however, could still allow least burdensome approach was to limit vessel would be complying with some vessels to land well in excess of pollock landings for a fishing trip and regulation, while removing twice as 300,000 lb of pollock per day. to set the trip limit at 300,000 lb. That much pollock. These practices were Trawl vessels that transit only a short amount would allow larger catcher inconsistent with the Council’s distance to a processor for delivering vessels to fully utilize available space in intention that only one trip per trawl pollock could exceed a daily landing of a hold, while still reducing landings vessel would be completed in a day, 300,000 lb in a 24-hour season opening, that were frequently exceeding 300,000 limiting the daily catch of pollock per because a single 24-hour season opening lb per day. NMFS based the limit on a vessel to 300,000 lb. Because the current overlaps with 2 calendar days (a season trip because trawl fishing trips in the trip limit is based on retention of opening always begins at noon), and GOA were typically completed within a pollock at any time during a fishing trip, because groundfish offloads may be calendar day, and enforcement issues the current regulations have allowed extended across one or more calendar existed with applying a landing limit vessels to catch more than 300,000 lb in days. For example, if the pollock season based on a daily or weekly interval. A a day. Increasing fishing effort from were to open for a 24-hour period at 12 daily limit was deemed to be these practices in 2005 also led to a noon on Monday (day 1), a vessel could impractical because at the time this 2,000 mt overage of the 5,000 mt catch 300,000 lb of pollock and option was considered in 2002, NMFS seasonal pollock quota. The Council did complete the offload of all catch before did not receive accurate data on not recommend any changes to pollock midnight on day 1. That vessel could groundfish catch by each vessel in a trip limits in 2005, but requested that begin to fish in the evening of day 1,

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and start its second offload of 300,000 that have previously landed more than thus, encompasses pollock groundfish lb on Tuesday morning (day 2). Prior to 1,000,000 lb per day. fishing in State waters. If the regulation the closing of the 24 hour period at 12 This action would apply to vessels of were administered only in Federal noon on Tuesday (day 2), the vessel all sizes and capacities in the GOA. For waters, the unintended result would could finish fishing a third trip for example, catcher vessels with larger likely be to shift pollock catches and pollock, but return to port and complete capacity for catching and delivering effort to State waters. its offload of pollock after 12 midnight pollock would no longer be able to A definition for ‘‘calendar day’’ would on Wednesday (day 3). An offload can bypass the original intent of pollock trip be added at § 679.2 to specify the start on one calendar day, and end on limits by practices such as delivering interval of time in a day from 0001 a subsequent calendar day. Thus, in a cod ends to a tender or processor, or hours Alaska local time to 2400 hours 24-hour season opening with the making multiple landings per day. The Alaska local time that a catcher vessel proposed daily landing limit, a total of RIR/IRFA for this action states that the is prohibited from exceeding a daily three calendar days multiplied by the number of times that larger trawl pollock landing limit of 300,000 lb at daily landing limit of 300,000 lb of catcher vessels over 60 ft length overall § 679.7(b)(2)(ii). This definition also pollock could be delivered, for a total of (LOA) exceed a daily catch of 300,000 would be used to prohibit catcher 900,000 lb. Furthermore, in a 48-hour lb of pollock is consistently greater than vessels from landing a cumulative season opening, the proposed daily small trawl catcher vessels (under 60 ft amount of unprocessed pollock landing limit could allow a vessel to LOA), and the combination of day, trip, harvested from any GOA reporting area offload 4 x 300,000 lb, or 1,200,000 lb and seasonal landing limits included in during a directed fishery that exceeds of pollock, and in a 72-hour opening, a this proposed action are more likely to the daily landing limit of 300,000 lb vessel could offload 5 x 300,000 lb, or reduce the amount of pollock caught per times the number of calendar days the a total of 1,500,000 lb. day for large than for small vessels. To directed fishery is open in a reporting The seasonal landing limit would compensate for constraining the amount area at § 679.7(b)(2)(iii). prohibit a vessel operator from landing of pollock that a catcher vessel may Regulations governing the an amount of pollock that exceeds the catch in a day, some of the 146 trawl prohibitions on pollock trip limits at daily landing limit multiplied by the vessels in the pollock fishery would § 679.7(b)(2) would be moved to number of calendar days that occur require additional trips to catch the § 679.7(b)(2)(i) to reorganize during the time period the directed annual pollock TAC. The vessels that § 679.7(b)(2). The current regulatory text fishery is open. In the case of a 24-hour forego the amount of those landings in at § 679.7(b)(2) that includes the phrase opening that extends across two excess of 300,000 lb per day, would still ‘‘on board a vessel’’ would be moved calendar days (for example, from noon remain available to all vessels to catch from the beginning of the sentence to on July 1 to noon on July 2), the in additional fishing trips. the middle of the sentence in seasonal landing limit combined with NMFS would not need additional data § 679.7(b)(2)(i). Technical changes to the daily landing limit and trip limit to calculate or monitor compliance for § 679.7(b)(2), recommended by NOAA would allow a vessel to land no more daily or seasonal pollock landing limits. Office for Law Enforcement, are than the daily landing limit of 300,000 NMFS would use landings data entered proposed to clarify the regulation. These lb multiplied by two (the number of by each shoreside, mothership or proposed amendments do not change calendar days), for a total of 600,000 lb. inshore floating processor in eLandings the content or meaning of the This proposed action would be at the time a vessel offloads pollock to regulation. consistent with the original intent of monitor compliance with the trip, daily, This rule also would revise Figure 3 pollock trip limits to temporally and and seasonal landing limits. If a vessel to part 679, by increasing the accuracy spatially disperse catches of pollock in exceeded the daily pollock landing of the geographic boundaries shown on the GOA. The daily landing limit limit, the amount of the overage would the map and by changing the figure title portion of this proposed action would be detected by NOAA Office for Law from ‘‘Gulf of Alaska Statistical and temporally disperse catches of pollock Enforcement during an audit of pollock Reporting’’ to read ‘‘Gulf of Alaska in the GOA by prohibiting operators of landings recorded in eLandings. Reporting Areas.’’ The correction to the catcher vessels from exceeding 300,000 Because a landing record is recorded at title is necessary because the Federal lb of pollock landed in a calendar day. the end of an offload, any amount statistical areas are not visible in the The seasonal landing limit would exceeding 300,000 lb in a day would be figure or in the coordinates. A Federal temporally disperse pollock catches by identified during a routine audit of statistical area is measured from 3 miles constraining pollock vessels from landing records. NMFS would also have to 200 miles from shore. A Federal exceeding an average daily catch of eLandings data to monitor compliance reporting area is measured from shore, 300,000 lb of pollock over the period of with the seasonal landing limit, by including State waters, and extends to a season, in a specific GOA regulatory comparing the 300,000 lb per calendar 200 miles from shore. The correction to area. day limit multiplied by the number of the figure is necessary to more The proposed action would also calendar days in the season opening, accurately depict these areas. reduce the chance of exceeding the with a given vessel’s cumulative amount pollock total allowable catch (TAC) or a of pollock landings in that season Classification seasonal allocation of the pollock TAC. opening. Pursuant to section 304(b)(1)(A) of the Implementing both a daily and seasonal The proposed action would apply to Magnuson–Stevens Act, the NMFS landing limit to prohibit landing daily pollock caught in both the Federal Assistant Administrator has determined amounts of pollock in excess of 600,000 waters of the Exclusive Economic Zone that this proposed rule is consistent lb in a 24 hour period may also slow (EEZ) and the adjacent State of Alaska with the FMP, other provisions of the down the overall rate of pollock catch waters (State waters) by Federally Magnuson–Stevens Act, and other in a season opening. Particularly in permitted vessels. Regulations on the applicable law, subject to further years and reporting areas of high daily and seasonal landing limits at consideration after public comment. pollock abundance, both the daily and § 679.7(b)(2)(ii) and (iii) would apply to This proposed rule has been seasonal landing limits would slow reporting areas defined at § 679.2 and determined to be not significant for removals from large capacity vessels depicted in Figure 3 to part 679, and purposes of Executive Order 12866.

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An IRFA was prepared, as required by Alaska Groundfish Management Plan, Authority: 16 U.S.C. 773 et seq.; 1801 et section 603 of the Regulatory Flexibility and within State waters by the State of seq.; 3631 et seq.; Pub. L.108–447. Act. The IRFA describes the economic Alaska. The alternative to apply daily 2. In § 679.2 add a definition for impact this proposed rule, if adopted, and seasonal trip limits to only Federal ‘‘Calendar day’’ in alphabetical order to would have on small entities. A EEZ would not encompass activities read as follows: description of the action, the reasons within State waters. As discussed in the § 679.2 Definitions. why it is being considered, and a RIR/IRFA for this action, the pollock statement of the objectives of and the resource and the fishery within the GOA * * * * * legal basis for this action are included occur both within Federal and State Calendar day means a 24-hour period at the beginning of this section in the waters. Taking action in only one area that starts at 0001 hours Alaska local preamble and in the SUMMARY section of the GOA would limit the time and ends at 2400 hours Alaska of the preamble. A summary of the effectiveness of the action, since local time. remainder of the IRFA follows. A copy participants in the pollock trawl fishery * * * * * of this analysis is available from NMFS would be free to move to the area 3. In § 679.7, revise paragraph (b)(2) to (see ADDRESSES). without the trip limits. From 1999 to read as follows: The directly regulated entities for this 2006, 60.6 percent of pollock was § 679.7 Prohibitions. proposed action are the members of the harvested in Federal waters and 39.4 commercial fishing industry that percent in State waters. If this proposed * * * * * operate groundfish trawl catcher vessels action is implemented, Federal rules (b) * * * in the GOA. Under a conservative would be consistent with the (2) Catcher vessel harvest limit for application of the Small Business corresponding action taken by the pollock. (i) Retain more than 300,000 lb Administration criterion and the best Alaska Board of Fisheries in November (136 mt) of unprocessed pollock on available data, there were seven small of 2007. board a catcher vessel at any time entities out of a total of 148 vessels in The analysis did not identify any during a fishing trip as defined at 2005, and four out of a total of 146 Federal rules that would duplicate, § 679.2; vessels in 2006, which would be overlap, or conflict with the proposed (ii) Land more than 300,000 lb (136 directly regulated by the proposed rule. This rule would impose no mt) of unprocessed pollock harvested in action. To provide these estimates, additional recordkeeping and reporting any GOA reporting area to any processor earnings from all Alaskan fisheries for requirements on the effected vessels. or tender vessel during a calendar day 2005 and 2006 were matched with the as defined at § 679.2; and vessels that participated in the GOA List of Subjects in 50 CFR Part 679 (iii) Land a cumulative amount of pollock fishery for that year. Alaska, Fisheries. unprocessed pollock harvested from any In addition to the proposed GOA reporting area during a directed Dated: October 14, 2008. alternative, the Council evaluated two fishery that exceeds the amount in other alternatives, which were rejected Samuel D. Rauch III paragraph (b)(2)(ii) of this section because they would be less effective Deputy Assistant Administrator for multiplied by the number of calendar than the preferred alternative to address Regulatory Programs, National Marine days that occur during the time period Fisheries Service. the Council’s problem statement. The no the directed fishery is open in that action alternative was rejected because For the reasons set out in the reporting area. preamble, 50 CFR part 679 is proposed it is not consistent with the intent of the * * * * * to be amended as follows: original 1999 Steller sea lion protection 4. In Figure 3 to part 679, the figure measures. A second alternative PART 679—FISHERIES OF THE heading and map are revised to read as considered and rejected was to limit the EXCLUSIVE ECONOMIC ZONE OFF follows: applicability of the preferred alternative ALASKA to the Federal EEZ. Trawl pollock Figure 3 to Part 679—Gulf of Alaska fisheries in the GOA are managed in the 1. The authority citation for part 679 Reporting Areas Federal EEZ by NMFS under the Gulf of continues to read as follows: BILLING CODE 3510–22–S

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* * * * * [FR Doc. E8–24923 Filed 10–17–08; 8:45 am] BILLING CODE 3510–22–C

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Notices Federal Register Vol. 73, No. 203

Monday, October 20, 2008

This section of the FEDERAL REGISTER disperse up to 25 miles, especially when most likely be detected if it were to contains documents other than rules or aided by strong winds. In addition, the spread. proposed rules that are applicable to the artificial spread of Sirex woodwasp can On July 21, 2008, we published in the public. Notices of hearings and investigations, occur through the movement of infested Federal Register (73 FR 42313–42314, committee meetings, agency decisions and host plant materials such as pine logs. Docket No. APHIS–2008–0073) a rulings, delegations of authority, filing of 11 petitions and applications and agency Because Sirex woodwasp inhabits the notice in which we announced the statements of organization and functions are sapwood and larvae tunnel deep into availability for public review and examples of documents appearing in this host trees, this pest is difficult to detect comment of the revised environmental section. through visual inspection. assessment, entitled ‘‘Proposed Program Sirex woodwasp can complete its for the Control of the Woodwasp Sirex lifecycle on many pine species, which noctilio F. (Hymenoptera: Siricidae) in DEPARTMENT OF AGRICULTURE are the pest’s primary hosts. Thus far, in the Northeastern United States’’ (May North America, jack pine (P. 2008). APHIS received 18 comments on Animal and Plant Health Inspection banksiana), red pine (P. resinosa), the revised environmental assessment. Service Scotch pine (P. sylvestris), and white Of these, 17 were outside the scope of [Docket No. APHIS–2008–0073] pine (P. strobus) have served as hosts for the environmental assessment; instead, Sirex woodwasp. The first detection of they pertained to movement restrictions Sirex Woodwasp; Availability of an a breeding population of the Sirex and economic impacts that may occur if Environmental Assessment and woodwasp in the United States occurred APHIS were to impose Sirex-related Finding of No Significant Impact in 2004 in Oswego County, NY. As a movement conditions. result of ongoing surveys conducted by The one comment that was relevant to AGENCY: Animal and Plant Health State and Federal officials since 2005, the environmental assessment Inspection Service, USDA. the Sirex woodwasp has been detected questioned the efficacy of the proposed ACTION: Notice. in additional counties in Michigan, New environmental release of the parasitic York, Pennsylvania, and Vermont. nematode Beddingia siricidicola and is SUMMARY: We are advising the public In an environmental assessment addressed in the August 2008 finding of that a final environmental assessment prepared in March 2007, APHIS no significant impact. and finding of no significant impact considered a program to control Sirex In this document, we are advising the have been prepared by the Animal and woodwasp in New York and public of our decision and finding of no Plant Health Inspection Service relative Pennsylvania, the only States where significant impact regarding a proposed to a proposed biological control program Sirex woodwasp had been detected at program for the control of Sirex for Sirex woodwasp. The environmental that time. The environmental woodwasp. This decision is based upon assessment documents our review and assessment evaluated four alternatives: the updated environmental assessment, analysis of environmental impacts No action, a quarantine program, a entitled ‘‘Proposed Program for the associated with the proposed biological biological control program, and a Control of the Woodwasp Sirex noctilio control program. Based on its finding of combination of quarantine and F. (Hymenoptera: Siricidae) in the no significant impact, the Animal and biological control (preferred action) in Northeastern United States’’ (August Plant Health Inspection Service has New York and Pennsylvania. APHIS 2008). determined that an environmental issued a finding of no significant impact The final environmental assessment impact statement need not be prepared. on June 21, 2007, which determined and finding of no significant impact FOR FURTHER INFORMATION CONTACT: Ms. that the proposed program (including may be viewed on the Regulations.gov Lynn Evans-Goldner, Staff Officer, quarantine and biological control) Web site or in our reading room (see Emergency and Domestic Programs, identified as the preferred action would ADDRESSES above for a link to PPQ, APHIS, 4700 River Road Unit 137, not have a significant impact on the Regulations.gov and information on the Riverdale, MD 20737–1231; (301) 734– quality of the human environment in location and hours of the reading room). 7228. those States. You may request paper copies of the SUPPLEMENTARY INFORMATION: Since that time, Sirex woodwasp has environmental assessment and finding been detected in additional States, and of no significant impact by calling or Background APHIS would like to implement a writing to the person listed under FOR The Sirex woodwasp (Sirex noctilio biological control program in those FURTHER INFORMATION CONTACT. Please Fabricius [Hymenoptera: Siricidae]) is a States. If the pest is detected in other refer to the title of the environmental member of the horntail wasp family States in the future, APHIS would also assessment when requesting copies. native to Europe, Asia, and northern want to implement a biological control The environmental assessment has Africa, where it is generally considered program in those States, as well. APHIS been prepared in accordance with: (1) to be a secondary pest. In its native therefore revised the environmental The National Environmental Policy Act range, it attacks pines, such as Austrian assessment in order to consider the of 1969 (NEPA), as amended (42 U.S.C. (Pinus nigra), maritime (P. pinaster), potential effects on the quality of the 4321 et seq.), (2) regulations of the and Scotch (P. sylvestris) pines, almost human environment from implementing exclusively. While stressed trees are a program for control of Sirex 11 To view the notice, the environmental assessment, the finding of no significant impact, most at risk, Sirex woodwasp can also woodwasp in all of the currently and the comments we received, go to http:// attack and kill healthy trees. Adult infested States and in the surrounding www.regulations.gov/fdmspublic/component/ wasps are strong fliers and can naturally States where Sirex woodwasp would main?main=DocketDetail&d=APHIS-2008-

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Council on Environmental Quality for DEPARTMENT OF COMMERCE that will come from new research. All implementing the procedural provisions messaging and communications that of NEPA (40 CFR parts 1500–1508), (3) Submission for OMB Review; will be developed as part of the 2010 USDA regulations implementing NEPA Comment Request Census integrated communications will be supported by primary research (7 CFR part 1), and (4) APHIS’ NEPA The Department of Commerce will among a wide range of target audiences. Implementing Procedures (7 CFR part submit to the Office of Management and 372). The research will serve to support Budget (OMB) for clearance the campaign direction and decisions made Done in Washington, DC, this 14th day of following proposal for collection of at each stage of message and October 2008. information under the provisions of the communications development, such Kevin Shea, Paperwork Reduction Act (44 U.S.C. research commenced in late 2007 and in chapter 35). Acting Administrator, Animal and Plant 2008 (covered as part of Generic Agency: U.S. Census Bureau. Health Inspection Service. Clearance OMB Control No. 0607–0725). Title: Generic Clearance for 2010 That research covered the development [FR Doc. E8–24889 Filed 10–17–08; 8:45 am] Census Communications Campaign BILLING CODE 3410–34–P of a unifying idea (Only You Can Make Testing Activities. the Census Ours) and creative Form Number(s): None. expression (It’s in Our Hands), which OMB Control Number: None. will be reflected across all Type of Request: New collection. communications under the campaign. BROADCASTING BOARD OF Burden Hours: 13,000. GOVERNORS This research provided valuable Number of Respondents: 8,000. guidance for the next stages of Average Hours per Response: 1 hour Sunshine Act Meeting development. Going forward, additional and 38 minutes. research must be conducted in order to Needs and Uses: Every ten years, the support these next stages. At this time, DATE AND TIME: Wednesday, October 22, U.S. Census Bureau is congressionally the Census Bureau is seeking a generic 2008, 1:30 p.m.–5:30 p.m. mandated to count everyone (citizens clearance for conducting research to and non-citizens) residing in the United PLACE: Cohen Building, Room 3321, 330 gain respondent feedback to specific States. An accurate count is critical for Independence Ave., SW., Washington, messaging, a variety of creative many reasons including but not limited DC 20237. executions, and to track the campaign to: progress once launched. This will CLOSED MEETING: The members of the • Congressional reapportionment; • enable the Census Bureau to continue Broadcasting Board of Governors (BBG) Redistricting congressional providing support for research activities will meet in closed session to review boundaries; • as part of the Census 2010 ICC. and discuss a number of issues relating Community planning; and The proposed quantitative and • to U.S. Government-funded non- Distribution of public funds and qualitative methods are: One-on-one military international broadcasting. program development. interviews; focus groups; online They will address internal procedural, To facilitate the data collection effort quantitative surveys; telephone budgetary, and personnel issues, as well for the 2010 Census, the Census Bureau quantitative surveys; and in-person as sensitive foreign policy issues is developing an Integrated quantitative surveys. Communications Campaign (ICC). The relating to potential options in the U.S. Since the types of studies included role of the ICC is to increase public international broadcasting field. This under the umbrella of the clearance are awareness and motivate people to meeting is closed because if open it so varied, it is impossible to specify at respond to the census promptly, saving this point what kinds of activities would likely would either disclose matters that millions of taxpayer dollars. The be involved in any particular activity. would be properly classified to be kept specific objectives of the ICC are: But at a minimum, Census expect to use secret in the interest of foreign policy • Increase mail response; in-person group interviews, focus under the appropriate executive order (5 • Improve cooperation with groups, usability tests, and tracking U.S.C. 552b.(c)(1)) or would disclose enumerators; and surveys. information the premature disclosure of • Improve overall accuracy and OMB will be provided a copy of which would be likely to significantly reduce differential undercount. questionnaires, moderator guides, frustrate implementation of a proposed From 1970—the first year creative materials, and debriefing agency action. (5 U.S.C. 552b.(c)(9)(B)) questionnaires were mailed to materials in advance of any testing In addition, part of the discussion will households—to 1990, the mail response activity. Depending on the stage of relate solely to the internal personnel rate declined from 78 percent to 65 creative development, this may be rough and organizational issues of the BBG or percent. To help halt the declining mail mock-ups of printed materials or story the International Broadcasting Bureau. response rate, the Census Bureau ran a boards. A brief description of the (5 U.S.C. 552b.(c)(2) and (6)) paid advertising campaign to support planned field activity will also be data collection activities for the 2000 provided. The Census Bureau will send CONTACT PERSON FOR MORE INFORMATION: Census. The resulting mail response rate OMB an annual report at the end of each Persons interested in obtaining more in 2000 was 67 percent—two percentage year summarizing the number of hours information should contact Timi points above 1990. This campaign was used, as well as the nature and results Nickerson Kenealy at (202) 203–4545. considered a very successful initiative of the activities completed under this Dated: October 15, 2008. and one of several reasons cited with clearance. Timi Nickerson Kenealy, helping to reverse declining mail The information collected in this response rates. program will be used by staff from the Acting Legal Counsel. In order to support the Census Bureau and its contractors to [FR Doc. E8–24976 Filed 10–16–08; 4:15 pm] aforementioned objectives, the ICC will evaluate and improve the quality of the BILLING CODE 8610–01–P be based on behavioral learning during communications, advertising, and the 2000 Census as well as information messages that are produced as part of

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the campaign. None of the data Register (73 FR 17314–17315, 4/1/ ACTION: Notice of Performance Review collected under this clearance will be 2008); Board Membership. published for its own sake. Whereas, the Board adopts the Data from the research will be findings and recommendations of the SUMMARY: 5 CFR 430.310 requires included in research reports prepared examiner’s report, and finds that the agencies to publish notice of for sponsors inside and outside of the requirements of the FTZ Act and Performance Review Board appointees Census Bureau. The results may also be Board’s regulations would be satisfied, in the Federal Register before their prepared for presentations before and that approval of the application service begins. This notice announces would be in the public interest if Census advisory committees, at the names of new and existing members professional meetings or in publications approval is subject to the conditions of the Bureau of Industry and Security’s in professional journals. listed below; Affected Public: Individuals or Now, therefore, the Board hereby Performance Review Board. households. orders: DATES: Effective Date: The effective date Frequency: On occasion. The application to expand the scope of of service of appointees to the Bureau of Respondent’s Obligation: Voluntary. manufacturing authority under zone Industry and Security Performance Legal Authority: Title 13 U.S.C. procedures within Subzone 50I, is Review Board (BIS PRB) is upon Sections 141 and 193. approved, subject to the FTZ Act and publication of this notice. The term of OMB Desk Officer: Brian Harris- the Board’s regulations, including the new members of the BIS PRB will Kojetin, (202) 395–7314. § 400.28, and subject to the following expire after two years in December 31, Copies of the above information conditions: collection proposal can be obtained by 1. Foreign status (19 CFR §§ 146.41, 2010. calling or writing Diana Hynek, 146.42) products consumed as fuel FOR FURTHER INFORMATION CONTACT: Departmental Paperwork Clearance for the refinery shall be subject to Heidi K. Smith, Department of Officer, (202) 482–0266, Department of the applicable duty rate. Commerce Human Resources Commerce, Room 6625, 14th and 2. Privileged foreign status (19 CFR Operations Center (DOCHROC), Office Constitution Avenue, NW., Washington, § 146.41) shall be elected on all of Executive Resources Operations, 14th DC 20230 (or via the Internet at foreign merchandise admitted to the and Constitution Avenue, NW., Room [email protected]). subzone, except that non–privileged 5015A, Washington, DC 20230, at (202) Written comments and foreign (NPF) status (19 CFR 482–1261. recommendations for the proposed § 146.42) may be elected on refinery information collection should be sent inputs covered under HTSUS SUPPLEMENTARY INFORMATION: The within 30 days of publication of this Subheadings #2709.00.10, purpose of the Performance Review notice to Brian Harris-Kojetin, OMB #2709.00.20, #2710.11.25, Board is to review and make Desk Officer either by fax (202–395– #2710.11.45, #2710.19.05, recommendations to the appointing 7245) or e-mail ([email protected]). #2710.19.10, #2710.19.45, authority on performance management Dated: October 15, 2008. #2710.91.00, #2710.99.05, issues such as appraisals, bonuses, pay Gwellnar Banks, #2710.99.10, #2710.99.16, level increases, and Presidential Rank #2710.99.21 and #2710.99.45 which Management Analyst, Office of the Chief Awards for members of the Senior Information Officer. are used in the production of: Executive Service. The Under Secretary - petrochemical feedstocks and [FR Doc. E8–24915 Filed 10–17–08; 8:45 am] for Industry and Security, Mario refinery by–products (examiner’s Mancuso, has named the following BILLING CODE 3510–07–P report, Appendix ‘‘C’’); members of the Bureau of Industry and - products for export; - and, products eligible for entry Security Performance Review Board: DEPARTMENT OF COMMERCE under HTSUS # 9808.00.30 and # 1. Daniel O. Hill, Deputy Under Foreign–Trade Zones Board 9808.00.40 (U.S. Government Secretary for Industry and Security purchases). (New). Order No. 1581 Signed at Washington, DC, this 7th 2. Matthew S. Borman, Deputy day of October 2008. Approval for Expansion of Subzone Assistant Secretary for Export 50I, Ultramar Inc. (Oil Refinery), David M. Spooner, Administration (New). Wilmington, California Assistant Secretary of Commerce for Import 3. Kevin Delli-Colli, Deputy Assistant Administration, Alternate Chairman, Secretary for Export Enforcement (New). Pursuant to its authority under the Foreign–Trade Zones Board. Foreign–Trade Zones Act of June 18, 1934, as Attest: 4. Gay G. Shrum, Director of amended (19 U.S.C. 81a–81u), the Foreign– Andrew McGilvray, Administration. Trade Zones Board (the Board) adopts the following Order: Executive Secretary. 5. John J. Phelan, III, Director for Whereas, the Port of Long Beach, [FR Doc. E8–24901 Filed 10–17–08; 8:45 am] Management and Organization (Outside grantee of Foreign–Trade Zone 50, has BILLING CODE 3510–DS–S Reviewer). requested authority to expand the Dated: October 14, 2008. subzone and the scope of manufacturing activity conducted under zone DEPARTMENT OF COMMERCE Deborah A. Martin, procedures within the oil refinery Director, Office of Executive Resources subzone of Valero Energy Corporation Bureau of Industry and Security Operations, Department of Commerce Human subsidiary Ultramar Inc., Subzone 50I, Resources Operations Center. Announcement of Performance Review [FR Doc. E8–24831 Filed 10–17–08; 8:45 am] located in Wilmington, California (FTZ Board Members Docket 17–2008, filed 3/21/2008); BILLING CODE 3510–BS–P Whereas, notice inviting public AGENCY: Bureau of Industry and comment has been given in the Federal Security, Department of Commerce.

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DEPARTMENT OF COMMERCE 7. Roxie J. Jones, Office of General antidumping duty margin calculation in Counsel, Department of Commerce the Final Results. International Trade Administration (Outside Reviewer). Scope of the Order Dated: October 14, 2008. Announcement of Performance Review The products covered by this order Board Members Deborah A. Martin, are chlorinated isocyanurates, as Director, Office of Executive Resources described below: Chlorinated AGENCY: International Trade Operations, Department of Commerce Human isocyanurates are derivatives of Administration, Department of Resources Operations Center. cyanuric acid, described as chlorinated Commerce. [FR Doc. E8–24834 Filed 10–17–08; 8:45 am] s–triazine triones. There are three ACTION: Notice of Performance Review BILLING CODE 3510–BS–P primary chemical compositions of Board Membership. chlorinated isocyanurates: (1) trichloroisocyanuric acid (Cl3(NCO)3), SUMMARY: 5 CFR 430.310 requires DEPARTMENT OF COMMERCE (2) sodium dichloroisocyanurate agencies to publish notice of • International Trade Administration (dihydrate) (NaCl2(NCO)3 2H2O), and Performance Review Board appointees (3) sodium dichloroisocyanurate in the Federal Register before their (anhydrous) (NaCl2(NCO)3). Chlorinated [A–570–898] service begins. This notice announces isocyanurates are available in powder, the names of new and existing members granular, and tableted forms. This order of the International Trade Amended Final Results of Antidumping Duty Administrative covers all chlorinated isocyanurates. Administration’s Performance Review Chlorinated isocyanurates are Board. Review: Chlorinated Isocyanurates from the People’s Republic of China currently classifiable under subheadings DATES: Effective Date: The effective date 2933.69.6015, 2933.69.6021, of service of appointees to the AGENCY: Import Administration, 2933.69.6050, 3808.40.50, 3808.50.40 International Trade Administration International Trade Administration, and 3808.94.50.00 of the Harmonized Performance Review Board is upon Department of Commerce. Tariff Schedule of the United States publication of this notice. EFFECTIVE DATE: October 20, 2008. (‘‘HTSUS’’). The tariff classification 2933.69.6015 covers sodium FOR FURTHER INFORMATION CONTACT: SUMMARY: On September 10, 2008, the Heidi K. Smith, Department of Department of Commerce dichloroisocyanurates (anhydrous and Commerce Human Resources (‘‘Department’’) published in the dehydrate forms) and Operations Center (DOCHROC), Office Federal Register the final results of the trichloroisocyanuric acid. The tariff of Executive Resources Operations, 14th second administrative review of the classifications 2933.69.6021 and and Constitution Avenue, NW., Room antidumping duty order on chlorinated 2933.69.6050 represent basket categories 5015A, Washington, DC 20230, at (202) isocyanurates from the People’s that include chlorinated isocyanurates 482–1261. Republic of China (‘‘PRC’’). See and other compounds including an unfused triazine ring. Although the SUPPLEMENTARY INFORMATION: The Chlorinated Isocyanurates from the People’s Republic of China: Final HTSUS subheadings are provided for purpose of the Performance Review convenience and customs purposes, the Board is to review and make Results of Antidumping Duty Administrative Review, 73 FR 52645 written description of the scope of this recommendations to the appointing order is dispositive. authority on performance management (September 10, 2008) (‘‘Final Results’’), issues such as appraisals, bonuses, pay and accompanying Issues and Decision Ministerial Errors Memorandum. The period of review level increases, and Presidential Rank A ministerial error as defined in covered is June 1, 2006, through May Awards for members of the Senior section 751(h) of the Act ‘‘includes 31, 2007. We are amending our Final Executive Service. The term of the new errors in addition, subtraction, or other Results to correct ministerial errors members of the ITA PRB will expire arithmetic function, clerical errors made in the calculation of the after two years in December 31, 2010. resulting from inaccurate copying, antidumping duty margins of Hebei The Under Secretary for International duplication, or the like, and any other Jiheng Chemical Company Ltd. Trade, Christopher A. Padilla, has type of unintentional error which the (‘‘Jiheng’’) and Nanning Chemical named the following members of the Secretary considers ministerial.’’ See Industry Co., Ltd. (‘‘Nanning’’) pursuant International Trade Administration also 19 CFR 351.224(f). Performance Review Board: to section 751(h) of the Tariff Act of After analyzing Petitioners comments, 1. Patricia A. Sefcik, Senior Director 1930, as amended (‘‘the Act’’). we have determined, in accordance with for Manufacturing, Chairperson (new 2- FOR FURTHER INFORMATION CONTACT: 19 CFR 351.224(e), that ministerial year term). Jennifer Moats or Charles Riggle, AD/ errors existed in certain calculations for 2. Susan H. Kuhbach, Senior Director, CVD Operations, Office 8, Import Jiheng and Nanning in the Final Results. Import Administration (new). Administration, International Trade Correction of these errors results in a 3. Walter M. Bastian, Deputy Administration, U.S. Department of change to Jiheng’s and Nanning’s final Assistant Secretary for Western Commerce, 14th Street and Constitution antidumping duty margins. The rate for Hemisphere, Market Access and Avenue, NW, Washington, DC 20230; the PRC–wide entity remains Compliance (new). telephone: (202) 482–5047 or (202) 482– unchanged. For a detailed discussion of 4. Stacey B. Silva, Executive Director 0650, respectively. these ministerial errors, as well as the for Trade Promotion and Outreach. SUPPLEMENTARY INFORMATION: On Department’s analysis, see 5. Ronald A. Glaser, Deputy Director September 10, 2008, Clearon Memorandum to Wendy J. Frankel, for Administration and Director for Corporation and Occidental Chemical Director, AD/CVD Operations, Office 8, Strategic Resources (At-Large). Corporation (‘‘Petitioners’’), Petitioners from Jennifer Moats, Senior 6. Jamie P. Estrada, Deputy Assistant in the underlying investigation, filed International Trade Analyst, through Secretary for Manufacturing and timely ministerial error allegations with Charles Riggle, Program Manager, AD/ Services (At-Large). respect to the Department’s CVD Operations, Office 8: Analysis of

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Ministerial Error Allegations in the dated concurrently with this notice. administrative review of chlorinated Final Results for Antidumping Duty Therefore, in accordance with section isocyanurates from the PRC. The revised Review on Chlorinated Isocyanurates 751(h) of the Act and 19 CFR 351.224(e), final weighted–average margins for from the People’s Republic of China, we are amending the Final Results of the Jiheng and Nanning are as follows:

Original Weighted–Average Amended Weighted–Average Exporter/Manufacturer Margin Percentage Margin Percentage

Jiheng ...... 0.80 0.90 Nanning ...... 53.67 54.86

Assessment Rates assessment of double antidumping results in those steel plates having been The Department intends to issue duties. This notice also serves as a ‘‘altered in form or appearance in minor assessment instructions to U.S. Customs reminder to parties subject to respects’’ from the subject merchandise and Border Protection (‘‘CBP’’) 15 days administrative protective orders such that the plates can be considered after the date of publication of these (‘‘APOs’’) of their responsibility subject to the antidumping duty order amended final results of review. In concerning the return or destruction of on certain cut–to-length carbon steel accordance with 19 CFR 351.212(b)(1), proprietary information disclosed under plate from the People’s Republic of we have calculated importer–specific APO in accordance with 19 CFR China (PRC) under the minor alterations assessment rates for merchandise 351.305, which continues to govern provision. See Suspension Agreement subject to this review. business proprietary information in this on Certain Cut–to-Length Carbon Steel segment of the proceeding. Timely Plate From the People’s Republic of Cash Deposit Requirements written notification of the return/ China; Termination of Suspension The following deposit requirements destruction of APO materials or Agreement and Notice of Antidumping will be effective retroactively on any conversion to judicial protective order is Duty Order, 68 FR 60081 (October 21, entries made on or after September 10, hereby requested. Failure to comply 2003). with the regulations and terms of an 2008, the date of publication of the EFFECTIVE DATE: October 20, 20088. Final Results, for all shipments of APO is a violation that is subject to FOR FURTHER INFORMATION CONTACT: subject merchandise entered, or sanction. withdrawn from warehouse, for We are issuing and publishing these Steve Bezirganian or Robert James, AD/ consumption as provided by section amended final results of review and CVD Operations, Office 7, Import 751(a)(2)(C) of the Act: (1) for subject notice in accordance with sections Administration, International Trade merchandise exported by Jiheng, the 751(a) and 777(i) of the Act. Administration, U.S. Department of cash deposit rate will be 0.90 percent Commerce, 14th Street and Constitution Dated: October 10, 2008. Avenue, NW, Washington, DC, 20230; and for subject merchandise exported by David M. Spooner, Nanning, the cash deposit rate will be telephone: (202) 482–1131 or (202) 482– Assistant Secretary for Import 0649, respectively. 54.86 percent; (2) for previously Administration. SUPPLEMENTARY INFORMATION: reviewed or investigated exporters not [FR Doc. E8–24902 Filed 10–17–08; 8:45 am] listed above that have separate rates, the BILLING CODE 3510–DS–S Background cash deposit rate will continue to be the exporter–specific rate published for the On August 13, 2008, certain domestic producers requested that the most recent period; (3) for all PRC DEPARTMENT OF COMMERCE exporters of subject merchandise, which Department make a final circumvention have not been found to be entitled to a International Trade Administration ruling within 45 days pursuant to separate rate, the cash deposit rate will section 781(d) of the Act, with respect [A–570–849] be the PRC–wide rate of 285.63 percent; to certain steel plates containing 0.0008 percent or more, by weight, of boron. and (4) for all non–PRC exporters of Certain Cut–to-Length Carbon Steel Those parties urged the Department to subject merchandise that have not Plate from the People’s Republic of find that such plates are circumventing received their own rate, the cash deposit China: Initiation of Antidumping the antidumping duty order on certain rate will be the rate applicable to the Circumvention Inquiry PRC exporter that supplied that non– cut–to-length carbon steel plate from the PRC exporter. These deposit AGENCY: Import Administration, PRC by virtue of minor alterations to requirements shall remain in effect until International Trade Administration, subject merchandise. See section 781(c) further notice. Department of Commerce. of the Act. SUMMARY: In response to a request from Certain domestic producers cite U.S. Notification of Interested Parties Nucor Corporation, SSAB N.A.D., Evraz trade data indicating that imports from This notice also serves as a final Claymont Steel, and Evraz Oregon Steel the PRC of merchandise classified under reminder to importers of their Mills, domestic interested parties in the Harmonized Tariff Schedule of the responsibility under 19 CFR above–mentioned proceeding United States (HTSUS) numbers that 351.402(f)(2) to file a certificate (collectively ‘‘certain domestic include subject merchandise declined regarding the reimbursement of producers’’), the Department of after the order went into effect. See antidumping duties prior to liquidation Commerce (the Department) is initiating certain domestic producers’ August 13, of the relevant entries during this an antidumping circumvention inquiry 2008, submission (August 13 review period. Failure to comply with pursuant to section 781(c) of the Tariff submission) at 15 and Exhibit 5. Certain this requirement could result in the Act of 1930, as amended (the Act). This domestic producers also note that Secretary’s presumption that inquiry will determine whether the during the same period, imports from reimbursement of the antidumping inclusion of 0.0008 percent or more, by the PRC of merchandise classified under duties occurred and the subsequent weight, of boron in certain steel plates the HTSUS as putatively non–subject

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alloy steel rose substantially. See id. As (September 10, 2008, submission). rolled iron and non–alloy steel a result, certain domestic producers Certain domestic producers identified universal mill plates (i.e., flat–rolled note, a single alloy HTSUS number publicly the parties they claimed were products rolled on four faces or in a accounted for nearly 95 percent of the involved with circumvention: Tianjin closed box pass, of a width exceeding total non–alloy and alloy steel plate Iron and Steel Co., Ltd. (Tianjin) and 150 mm but not exceeding 1250 mm imported from the PRC in the most Toyota Tsusho America (Toyota and of a thickness of not less than 4 recent quarter for which data are Tsusho). See September 10, 2008, mm, not in coils and without patterns available (April 2008 through June submission, at 3. Certain domestic in relief), of rectangular shape, neither 2008). See id. producers also clarified the proposed clad, plated nor coated with metal, Certain domestic producers suggest scope of the antidumping whether or not painted, varnished, or this trend reflects, at least in part, a circumvention inquiry. Specifically, coated with plastics or other move by PRC producers and exporters they proposed that manufacturers and nonmetallic substances; and certain iron to add small amounts of boron during exporters of certain merchandise and non–alloy steel flat–rolled products the steel production process. See id., at containing boron at alloy steel levels, not in coils, of rectangular shape, hot– 5. They note that steel consisting of but otherwise meeting the description of rolled, neither clad, plated, nor coated 0.0008 percent or more boron is the scope of the antidumping duty with metal, whether or not painted, classified for U.S. Customs purposes as order, be required to demonstrate that varnished, or coated with plastics or alloy steel. See id. Such ‘‘alloy’’ steel the merchandise had certain additional other nonmetallic substances, 4.75 mm products are not classified in HTSUS chemical and testing result properties or more in thickness and of a width numbers listed with the description of for such merchandise to be considered which exceeds 150 mm and measures at the scope of the order. Certain domestic not subject to the antidumping duty least twice the thickness. Included as producers state boron is being added in order. See id., at 7; see also ‘‘Scope of subject merchandise in this order are the steel production process to avoid the Minor Alterations Antidumping flat–rolled products of nonrectangular antidumping duties. See id., at 10. Circumvention Proceeding’’ section cross-section where such cross-section Certain domestic producers assert that below. Certain domestic producers is achieved subsequent to the rolling physical characteristics, expectations of provided mill test certificate process (i.e., products which have been ultimate users, uses, channels of information to support its claims. See ‘‘worked after rolling’’) - for example, marketing, and costs are unaffected by September 13, 2008, submission, at products which have been bevelled or the inclusion of such small quantities of Exhibits S–2 and S–5. Certain domestic rounded at the edges. This merchandise boron. See id., at 10–13. Certain producers also provided additional is currently classified in the domestic producers also refer to information and clarification, including, Harmonized Tariff Schedule of the evidence of a specific offer made for for example, discussion of the potential United States (HTS) under item such PRC steel that contained what they impact of boron on the hardenability of numbers 7208.40.3030, 7208.40.3060, described as language indicating a steels, and how hardenability is 7208.51.0030, 7208.51.0045, conscious attempt to avoid classification measured. See September 10, 2008, 7208.51.0060, 7208.52.0000, of the merchandise under the order. See submission at 5–9 and Exhibit S–4. 7208.53.0000, 7208.90.0000, id., at 10 and Exhibit 1. Certain On September 19, 2008, the 7210.70.3000, 7210.90.9000, domestic producers suggest the shift to Department obtained additional 7211.13.0000, 7211.14.0030, the ostensibly ‘‘alloy’’ plate products information through a telephone 7211.14.0045, 7211.90.0000, indicates an attempt to conceal Chinese conversation with individuals speaking 7212.40.1000, 7212.40.5000, producers’ true interest in re–entering on behalf of one of the domestic 7212.50.0000. Although the HTS the U.S. market in the context of the producers. These individuals clarified subheadings are provided for recently initiated sunset review of the that the request did cover products with convenience and customs purposes, the order. See id., at 14–15. In addition, any boron level greater than or equal to written description of the scope of this certain domestic producers note the 0.0008 percent. Also, the request for order is dispositive. Specifically Department ruled that circumvention antidumping circumvention inquiry was excluded from subject merchandise had taken place under another cut–to- limited to merchandise produced by within the scope of this order is grade length carbon steel plate order as a Tianjin and/or imported by Toyota X–70 steel plate. result of such boron additions. See id., Tsusho. See the September 30, 2008, at 9 (citing Final Determination of telephone memorandum from Steve Merchandise Subject to the Minor Circumvention of the Antidumping Bezirganian to the File (September 30, Alterations Antidumping Order: Cut–to-Length Carbon Steel Plate 2008, memorandum). In a submission Circumvention Proceeding From Canada, 66 FR 7617 (January 24, filed on October 1, 2008 (October 1, 2001) (Final Canada Plate 2008, submission), certain domestic The merchandise subject to this Determination)). Finally, certain producers confirmed the accuracy of the antidumping circumvention inquiry domestic producers reference media information recorded in September 30, consists of all merchandise produced by reports that the PRC government is 2008, memorandum. See October 1, Tianjin and/or imported by Toyota taking steps to curb efforts by PRC 2008, submission at 2. In that filing, Tsusho containing 0.0008 percent or exporters to evade PRC export taxes certain domestic producers also more boron, by weight, and otherwise through boron–inclusion resulting in provided additional evidence of offers meeting the requirements of the scope of steel plate products being classified as for plate containing added boron and the antidumping duty order as listed ‘‘alloy’’ steel. See id., at 10 and Exhibit involving Tianjin and Toyota Tsusho. under the ‘‘Scope of the Order’’ section 2. See October 1, 2008, submission at 1– above, with the exception of On August 26, 2008, the Department 2 and Exhibit 1. merchandise meeting all of the identified various issues in certain Scope of Order following requirements: aluminum level domestic producers’ August 13, 2008, The product covered by this order is of 0.02 percent or greater, by weight; a submission that required clarification. certain cut–to-length carbon steel plate ratio of 3.4 to 1 or greater, by weight, of Certain domestic producers provided a from the People’s Republic of China. titanium to nitrogen; and a response on September 10, 2008 Included in this description is hot– hardenability test (i.e., Jominy test)

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result indicating a boron factor of 1.8 or Expectations of the Ultimate Users whether the merchandise subject to the greater. Certain domestic producers indicated inquiry (identified in the ‘‘Merchandise Subject to the Minor Alterations Initiation of Minor Alterations they are unaware of any instances where customers expected or requested cut–to- Antidumping Circumvention Antidumping Circumvention Proceeding’’ section above) involves a Proceeding length carbon steel plate with small amounts of boron added, other than to minor alteration to subject merchandise Section 781(c)(1) of the Act provides potentially avoid the added expenses to that is so insignificant as to render the that the Department may find the plate products that result from the resulting merchandise (classified as circumvention of an antidumping duty antidumping duties in place (see August ‘‘alloy’’ steel under the HTSUS) subject order when products which are of the 13, 2008, submission at 12), with the to the antidumping duty order on class or kind of merchandise subject to exception of those instances in which certain cut–to-length carbon steel plate an antidumping duty order have been other parameters are fulfilled to allow from the PRC. ‘‘altered in form or appearance in minor enhanced hardenability of the product. The Department intends to issue its respects . . . whether or not included in As noted, the scope of the inquiry was final determination within 300 days of the same tariff classification.’’ The limited to account for this exception. the date of publication of this notice. Department notes that, while the statute See Overall Physical Characteristics The Department will not order the is silent as to what factors to consider sub–section above. suspension of liquidation of entries of in determining whether alterations are any additional merchandise at this time. Use of the Merchandise However, in accordance with 19 CFR properly considered ‘‘minor,’’ the Certain domestic producers state the 351.225(l)(2), if the Department issues a legislative history of this provision product at issue is used for the same preliminary affirmative determination, indicates there are certain factors which purposes as subject merchandise. See we will then instruct U.S. Customs and should be considered before reaching a August 13, 2008, submission at 12. This Border Protection to suspend circumvention determination. In is consistent with their later claim that liquidation and require a cash deposit of conducting a circumvention inquiry the presence of the additional amounts estimated duties on the merchandise. under section 781(c) of the Act, the of boron, in and of itself, is insignificant We intend to notify the International Department has generally relied upon in terms of adding beneficial attributes Trade Commission in the event of an ‘‘such criteria as the overall physical to the steel. See September 10, 2008, affirmative preliminary determination of characteristics of the merchandise, the submission at 4. circumvention, in accordance with expectations of the ultimate users, the Channels of Marketing 781(e)(1) of the Act and 19 CFR use of the merchandise, the channels of 351.225(f)(7)(i)(C). The Department will, marketing and the cost of any Certain domestic producers state the following consultation with interested modification relative to the total value channels of marketing for the boron– parties, establish a schedule for of the imported products.’’ S. Rep. added cut–to-length plate and the questionnaires and comments on the No.71, 100th Cong., 1st Sess. 100 (1987) subject plate are the same, noting that issues. As noted above, the Department (‘‘In applying this provision, the both products are marketed in the same intends to issue its final determinations Commerce Department should apply manner, appeal to the same end users, within 300 days of the date of practical measurements regarding minor and are used for the same end uses. See publication of this initiation. alterations, so that circumvention can be August 13, 2008, submission at 12. They This notice is published in dealt with effectively, even where such note an electronic mail offer involving accordance with sections 781(c) and (d) alterations to an article technically Tianjin and Toyota Tsusho directly of the Act and 19 CFR 351.225(i). transform it into a differently designated targets U.S. customers of subject article.’’). merchandise. See id. at 12–13 and Dated: October 10, 2008. David Spooner, As discussed below, certain domestic Exhibit 1; see also September 10, 2008, producers have presented evidence with submission at 3. Assistant Secretary for Import Administration. respect to each of these criteria. Cost of Modification [FR Doc. E8–24910 Filed 10–17–08; 8:45 am] Overall Physical Characteristics Certain domestic producers indicated BILLING CODE 3510–DS–S the addition of boron at levels Certain domestic producers recognized as alloy amounts by the tariff acknowledge that the presence of boron schedule involve minimal additional DEPARTMENT OF COMMERCE may be associated with enhanced cost. They cite the Department’s finding hardenability of steel. See id. However, in a previous ruling that reaching the International Trade Administration certain domestic producers have noted 0.0008 percent threshold involved a cost [A–427–827] that other parameters are necessary for amounting to only about one–third of boron to have the effect in question (see, one percent of the sales price. See Sodium Metal from France: Notice of e.g., September 10, 2008, submission at August 13, 2008, submission at 13; see Final Determination of Sales at Less 5–9, and September 30, 2008, also Preliminary Determination of Than Fair Value and Negative Critical memorandum at 1–2). The limitation of Circumvention of Antidumping Order: Circumstances the scope of this circumvention inquiry Cut–to-Length Carbon Steel Plate From accounted for such circumstances. See Canada, 65 FR 64926, 64928 (October AGENCY: Import Administration, ‘‘Merchandise Subject to the Minor 31, 2000) (unchanged at Final Canada International Trade Administration, Alterations Antidumping Plate Determination). Department of Commerce. Circumvention Proceeding’’ section Based on the information provided by SUMMARY: The Department of Commerce above. Unless these parameters are met, certain domestic producers, the (the Department) has determined that the boron is assumed to have no effect Department finds there is sufficient sodium metal from France is being, or upon the hardenability of the steel. See, basis to initiate an antidumping is likely to be, sold in the United States e.g., September 10, 2008, submission at circumvention inquiry pursuant to at less than fair value (LTFV), as 6. section 781(c) of the Act to determine provided in section 735 of the Tariff Act

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of 1930, as amended (the Act). The Central Records Unit (CRU), Room 1117 corresponding recommendations in the estimated margins of sales at LTFV are of the main Department of Commerce Decision Memorandum, which is on file listed below in the section entitled building. in the CRU. In addition, a complete ‘‘Continuation of Suspension of Based on the Department’s findings at version of the Decision Memorandum Liquidation.’’ verification, as well as the minor can be accessed directly on the Web at EFFECTIVE DATE: October 20, 2008. corrections presented by MSSA at the http://ia.ita.doc.gov/frn/. The paper start of its respective verifications, we FOR FURTHER INFORMATION CONTACT: copy and electronic version of the requested during verification that Dennis McClure or Joy Zhang, AD/CVD Decision Memorandum are identical in respondents submit revised sales Operations, Office 3, Import content. databases. As requested, MSSA Administration, International Trade submitted its revised sales databases at Targeted Dumping Administration, U.S. Department of verification on July 16, 2008. In the Preliminary Determination, Commerce, 14th Street and Constitution On September 15, 2008, the petitioner Avenue, NW, Washington, DC 20230; with respect to targeted dumping, we submitted an allegation of critical telephone (202) 482–5973 or (202) 482– followed the methodology outlined in circumstances. MSSA submitted 1168, respectively. the post–preliminary targeted dumping comments responding to the petitioner’s analysis in the investigations of Certain SUPPLEMENTARY INFORMATION: On May allegation of critical circumstances on Steel Nails from the PRC and the UAE. 28, 2008, the Department published in September 25, 2008. SEE Memorandum to David M. Spooner, the Federal Register its preliminary Assistant Secretary for Import determination in the antidumping duty Period of Investigation Administration, from Stephen J. Claeys, investigation of sodium metal from The period of investigation (POI) is Deputy Assistant Secretary for Import France. See Sodium Metal from France: October 1, 2006, to September 30, 2007. Administration, RE: Antidumping Duty Notice of Preliminary Determination of This period corresponds to the four Investigation of Certain Steel Nails from Sales at Less Than Fair Value and most recent fiscal quarters prior to the the Peoples Republic of China (PRC) Postponement of Final Determination, month of the filing of the petition. and the United Arab Emirates (UAE), 73 FR 30605 (May 28, 2008) Subject: Post–Preliminary (Preliminary Determination). Scope of the Investigation Determinations on Targeted Dumping, In the Preliminary Determination, The merchandise covered by this dated April 21, 2008 (April 21, 2008 based on our examination of E.I. DuPont investigation includes sodium metal Nails decision memorandum).1 Based de Nemours & Co. Inc.’s (the petitioner) (Na), in any form and at any purity on the targeted dumping test that we targeted dumping allegation filed on level. Examples of names commonly applied in the Preliminary April 21, 2008, we determined that used to reference sodium metal are Determination, we did not find a pattern there is no pattern of constructed export sodium metal, sodium, metallic sodium, of constructed export prices for prices for comparable merchandise that and natrium. The merchandise subject comparable merchandise that differ differs significantly among purchasers. to this investigation is classified in the significantly among customers.2 As a Therefore, we applied the average–to- Harmonized Tariff Schedule of the result, we applied the average–to- average methodology to all U.S. sales by United States subheading 2805.11.0000. average methodology to the constructed MSSA S.A.S., MSSA Co., and Columbia The American Chemical Society export prices of all of MSSA’s sales to Sales International (collectively, MSSA). Chemical Abstract Service (CAS) has the United States during the POI and In the Preliminary Determination, the assigned the name ‘‘Sodium’’ to sodium calculated a preliminary margin of 62.62 Department invited comments regarding metal. The CAS registry number is percent for MSSA.3 the overall application of the targeted 7440–23–5. For purposes of the In the Preliminary Determination, the dumping test applied in this investigation, the narrative description Department applied the Nails targeted proceeding. Accordingly, we received is dispositive, not the tariff heading, dumping test based on the methodology comments within the case briefs CAS registry number or CAS name, outlined in the April 21, 2008 Nails submitted by the petitioner and MSSA which are provided for convenience and decision memorandum and found no on July 25, 2008. The petitioner and customs purposes. MSSA submitted rebuttal comments on targeted dumping. We have analyzed 4 July 30, 2008. Analysis of Comments Received the case and rebuttal briefs with We conducted sales and cost All issues raised in the case and respect to targeted dumping issues verifications of the responses submitted rebuttal briefs by parties to this submitted for the record in this by MSSA. See Memorandum to the File antidumping investigation are investigation and considered the from Dennis McClure and Joy Zhang, addressed in the ‘‘Issues and Decision changes made to the targeted dumping Case Analysts, through James Terpstra, Memorandum for the Antidumping test applied in the final determinations 5 Program Manager, Office 3, entitled Duty Investigation of Sodium Metal of UAE and PRC Nails and PRC Tires. ‘‘Verification of the Sales Response of from France’’ from Stephen J. Claeys, 1 MSSA S.A.S., MSSA Co., and Columbia Deputy Assistant Secretary for Import See Preliminary Determination at 30606. 2 Id. at 30607. Sales International in the Antidumping Administration, to David M. Spooner, 3 Id. at 30609. Duty Investigation of Sodium Metal Assistant Secretary for Import 4 See the petitioner’s case brief, dated July 25, from France,’’ dated July 18, 2008 (Sales Administration (Decision 2008; see also; MSSA’s rebuttal brief, dated July 30, Verification Report); see also Memorandum), dated October 10, 2008, 2008, respectively. Memorandum to the File through Neal which is hereby adopted by this notice. 5 See Certain Steel Nails from the United Arab Emirates: Notice of Final Determination of Sales at M. Halper, from LaVonne Clark, entitled A list of the issues which parties have Not Less Than Fair Value, 73 FR 33985 (June 16, ‘‘Verification of the Cost Response of raised and to which we have responded, 2008) and accompanying Issues and Decision MSSA S.A.S. in the Antidumping all of which are in the Decision Memorandum (Steel Nails from the UAE) dated Investigation of Sodium Metal from Memorandum, is attached to this notice June 6, 2008, at Comment 5; see also; Certain Steel Nails from the People’s Republic of China: Final France,’’ dated July 1, 2008 (Cost as an appendix. Parties can find a Determination of Sales at Less Than Fair Value and Verification Report). All verification complete discussion of all issues raised Partial Affirmative Determination of Critical reports are on file and available in the in this investigation and the Continued

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As a result of our analysis, we utilized Circumstances, dated October 10, 2008, weighted–average dumping margin, as the Nails targeted dumping test from the which is hereby adopted by this notice. indicated in the chart above, as follows: Preliminary Determination and applied Verification (1) the rate for MSSA S.A.S. will be certain modifications from Nails and 66.64 percent; (2) if the exporter is not PRC Tires for purposes of the final As provided in section 782(i) of the a firm identified in this investigation, determination.6 Act, we verified the sales and cost but the producer is, the rate will be the As in the Preliminary Determination, information submitted by MSSA for use rate established for the producer of the we did not find a pattern of export in our final determination. We used subject merchandise; (3) the rate for all standard verification procedures prices for comparable merchandise that other producers or exporters will be including an examination of relevant differ significantly among customers. 66.64 percent. The suspension of For further discussion, see Comments 2 accounting and production records, and original source documents provided by liquidation instructions will remain in and 3 of the Decision Memorandum and effect until further notice. the Memorandum to James Terpstra, MSSA. See Sales Verification Report Program Manager for the Office of AD/ and Cost Verification Report. International Trade Commission CVD Operations, from Dennis McClure Changes Since the Preliminary Notification and Joy Zhang, Analysts for the Office Determination In accordance with section 735(d) of of AD/CVD Operations, RE: Based on our analysis of the Antidumping Duty Investigation of the Act, we have notified the comments received and our findings at International Trade Commission (ITC) of Sodium Metal from France, Subject: verification, we have made certain Final Analysis Memorandum for Sales our final determination. As our final changes to the margin calculation for determination is affirmative and in MSSA, dated October 10, 2008 (Final MSSA. For a discussion of these Analysis Memorandum). accordance with section 735(b)(2) of the changes, see the Decision Memorandum Act, the ITC will determine, within 45 Critical Circumstances at Comments 6, 8, 10, and 11, Final days, whether the domestic industry in Analysis Memorandum, and On September 15, 2008, the petitioner the United States is materially injured, Memorandum to Neal M. Halper, or threatened with material injury, by filed a critical circumstances allegation Director, Office of Accounting, from reason of imports or sales (or the with respect to imports of sodium metal LaVonne Clark, Senior Accountant, likelihood of sales) for importation of from France. On September 25, 2008, Reference: Antidumping Duty MSSA submitted comments and Investigation of Sodium Metal from the subject merchandise. If the ITC monthly shipment data in response to France, Subject: Cost of Production and determines that material injury or threat the petitioner’s allegation. Although the Constructed Value Calculation of material injury does not exist, the Department found that in accordance Adjustments for the Final Determination proceeding will be terminated and all with section 735(a)(3)(A)(ii) of the Act, MSSA S.A.S., MSSA Co., and Columbia securities posted will be refunded or the person by whom, or for whose Sales International, Inc. (collectively canceled. See section 735(c)(2) of the account, the merchandise was imported ‘‘MSSA’’), dated October 10, 2008. Act. If the ITC determines that such knew or should have known that the injury does exist, the Department will exporter was selling the subject Final Determination Margins issue an antidumping duty order merchandise at less than its fair value We determine that the following directing CBP to assess antidumping and there was likely to be material weighted–average dumping margin duties on all imports of the subject injury of such sales, the Department has exists for the period October 1, 2006, to merchandise entered, or withdrawn made a final negative determination September 30, 2007: from warehouse, for consumption on or concerning critical circumstances for after the effective date of the suspension MSSA and all other French Weighted–Average Manufacturer/Exporter of liquidation. manufacturers and exporters because, in Margin (percent) accordance with section 735(a)(3)(B) of Notification Regarding APO the Act, and based on MSSA’s shipment MSSA S.A.S...... 66.64 All Others ...... 66.64 data, MSSA and all other companies did This notice also serves as a reminder not have massive imports during a to parties subject to administrative Disclosure relatively short period. See protective order (APO) of their Memorandum to Stephen J. Claeys, We will disclose the calculations responsibility concerning the Deputy Assistant Secretary for Import performed within five days of the date disposition of proprietary information Administration, from Melissa Skinner, of publication of this notice to parties in disclosed under APO in accordance Director, AD/CVD Operations, Subject: this proceeding in accordance with 19 with 19 CFR 351.305. Timely Antidumping Duty Investigation of CFR 351.224(b). notification of return/destruction of Sodium Metal from France, Regarding: Continuation of Suspension of APO materials or conversion to judicial Final Negative Determination of Critical Liquidation protective order is hereby requested. Failure to comply with the regulations Circumstances, 73 FR 33977 (June 16, 2008) and Pursuant to section 735(c)(1)(B) of the and the terms of an APO is a accompanying Issues and Decision Memorandum Act, we will instruct Customs and sanctionable violation. (Steel Nails from the PRC) dated June 6, 2008, at Border Protection (CBP) to continue to Comments 3, 5, and 9 (collectively, Nails); see also; suspend liquidation of all entries of This determination is issued and Certain New Pneumatic Off-The-Road Tires from published pursuant to sections 735(d) the People’s Republic of China: Final Affirmative subject merchandise from France, Determination of Sales at Less Than Fair Value and entered, or withdrawn from warehouse, and 777(i)(1) of the Act. Partial Affirmative Determination of Critical for consumption on or after May 28, Circumstances, 73 FR 40480 (July 15, 2008) and 2008, the date of publication of the accompanying Issues and Decision Memorandum (PRC Tires) dated July 7, 2008, at Comments 23. B Preliminary Determination. We will and 23.G. instruct CBP to require a cash deposit or 6 Id. the posting of a bond equal to the

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Dated: October 10, 2008. are interested in the Vietnam’s business preparation for the U.S.-Vietnam ICT David M. Spooner, climate for U.S. products or services and Commercial Dialogue Working Group Assistant Secretary for Import how policy issues may have an impact meeting on November 13. Administration. on trade and investment in this sector. Dated: October 14, 2008. In 2007, the ITA launched the U.S.- Appendix -- Issues in Decision Robin Layton, Vietnam ICT Commercial Dialogue with Memorandum Director, Office of Technology and Electronic the Ministry of Information and Commerce. ISSUES Communications (MIC) in Vietnam to [FR Doc. E8–24878 Filed 10–17–08; 8:45 am] discuss various ICT issues that have an Comment 1: Whether the Department BILLING CODE 3510–DR–P Should Include ‘‘Form’’ As Part of impact on trade between our two Model Match Criteria countries. The U.S. and Vietnamese Comment 2: Whether the Department companies that participated in the DEPARTMENT OF COMMERCE Should Calculate the Antidumping Duty meeting made several recommendations Margin using the Transaction–to- for future areas of cooperation. To International Trade Administration Transaction Methodology continue facilitating input from the Comment 3: Whether the Department’s private sector, ITA and MIC agreed to Notice of Request for Public Comment Targeted Dumping Test is Flawed and create a Business Advisory Group under AGENCY: International Trade Should be Replaced with the the Dialogue and encourage wide Administration, Department of ‘‘preponderance at two percent test’’ (P/ participation from both countries. The Commerce. 2 test) main objectives of the Business Comment 4: Whether the Department Advisory Group are to identify areas of ACTION: Notice of request for public Should Alter Its Level of Trade Analysis mutual concern to be potentially comment. Comment 5: Whether the Department addressed by the Working Group of the SUMMARY: Should Calculate Certain Home Market U.S.-Vietnam ICT Commercial Dialogue, The Department of Packing Expenses Based on Facts and to coordinate activities that could Commerce’s International Trade Available be considered deliverables for the Administration (ITA) is seeking U.S. Comment 6: Whether the Department Dialogue. Examples of issues that have academic institutions, training centers, Should Re–allocate Indirect Selling been covered so far include and other interested parties who would Expenses Based on Sales Value advancement of telecom infrastructure, like to organize joint activities with Comment 7: Whether the Department protection of intellectual property rights their counterparts in Vietnam in the Should Deduct Freight from Transfer for software, and supporting electronic field of Information and Communication Price Before Calculating Domestic commerce by developing legal Technologies (ICT). In 2007, the ITA Indirect Selling Expenses frameworks for data privacy. launched the U.S.-Vietnam ICT Commercial Dialogue with the Ministry Comment 8: Whether the Department DATES: November 12–13, 2008. Should Correct MSSA Co.’s Inventory of Information and Communications ADDRESSES: Inquiries about (MIC) in Vietnam to discuss various ICT Carrying Costs in the United States participation in the Business Advisory Comment 9: Whether the Department issues that have an impact on trade Group should be addressed to the between our two countries. The U.S. Incorrectly Characterized MSSA Co.’s contact below, and received by close of Quantity and Value Reconciliation and Vietnamese companies that business on Monday, November 10, participated in the meeting Comment 10: Whether the Department 2008. Correctly Calculated Indirect Selling recommended the establishment of a Expenses Incurred in the Home Market FOR FURTHER INFORMATION CONTACT: Cora ‘‘public/private partnership for the for Purposes of the CEP Deduction Dickson, U.S. Department of Commerce, development of human resources Comment 11: Whether the Department Office of Technology and Electronic through technical training programs.’’ Should Consider Certain Expenses Commerce, 1401 Constitution Avenue, Therefore MIC has proposed that an Reported as Indirect Selling Expenses as NW., Room 4327, Washington, DC Academic Advisory Group be created in Direct Deductions from the U.S. Price 20230; Telephone: 202–482–6083; Fax: addition to a Business Advisory Group [FR Doc. E8–24912 Filed 10–17–08; 8:45 am] 202–482–5834; e-mail: under the Dialogue. [email protected]. The objective of the Academic BILLING CODE 3510–DS–S SUPPLEMENTARY INFORMATION: The Advisory Group would be to facilitate Business Advisory Group is expected to an exchange of ideas on the best DEPARTMENT OF COMMERCE have participants from U.S. and curriculum to meet the needs of ICT Vietnamese companies or associations growth, and to increase opportunities International Trade Administration and generally be responsible for for Vietnamese citizens to study in the developing their own internal ICT field in Vietnam through distance Notice of Request for Public Comment communication and consultation learning mechanisms, or at United States institutions. AGENCY: International Trade mechanisms, including informal Administration, Department of meetings. Participation in the Business The initial meeting of the Academic Commerce. Advisory Group should be open to any Advisory Group, to be held via videoconference, is tentatively ACTION: ICT companies and industry Notice of request for public scheduled for November 12, 2008. A comment. associations who wish to contribute to the Dialogue. However, due to space representative of the group would make SUMMARY: The Department of constraints, only two representatives per a brief report at the ICT Dialogue Commerce’s International Trade company and/or organization can attend Working Group meeting on November Administration (ITA) is seeking U.S. the upcoming Business Advisory Group 13 in Washington, DC. A follow-up companies and industry associations in meeting, which will be hosted at the meeting is anticipated in January 2009 the field of Information and Department of Commerce in in Hanoi. Communication Technologies (ICT) who Washington on November 12 in DATES: November 12–13, 2008.

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ADDRESSES: Inquiries about ADDRESSES: Direct all written comments burden of the collection of information participation in the videoconference to Diana Hynek, Departmental on respondents, including through the should be addressed to the contact Paperwork Clearance Officer, use of automated collection techniques below, and received by close of business Department of Commerce, Room 6625, or other forms of information on Monday, November 10, 2008. 14th and Constitution Avenue, NW., technology. FOR FURTHER INFORMATION CONTACT: Cora Washington, DC 20230 (or via the Comments submitted in response to Dickson, U.S. Department of Commerce, Internet at [email protected]). this notice will be summarized and/or Office of Technology and Electronic FOR FURTHER INFORMATION CONTACT: included in the request for OMB Commerce, 1401 Constitution Avenue, Requests for additional information or approval of this information collection; NW., Room 4327, Washington, DC copies of the information collection they also will become a matter of public 20230; Telephone: 202–482–6083; Fax: instrument and instructions should be record. 202–482–5834; E-mail: directed to Patsy A. Bearden, (907) 586– Dated: October 15, 2008. [email protected]. 7008 or [email protected]. Gwellnar Banks, SUPPLEMENTARY INFORMATION: Management Analyst, Office of the Chief SUPPLEMENTARY INFORMATION: U.S. Information Officer. Ambassador to Vietnam Michael I. Abstract [FR Doc. E8–24887 Filed 10–17–08; 8:45 am] Michalak has made education a top The Magnuson Stevens Fishery BILLING CODE 3510–22–P priority. The U.S. Embassy in Hanoi Conservation and Management Act hosted an education conference in requires the Secretary of Commerce to January as a first step, and expects to conduct a Cost Recovery Program to DEPARTMENT OF COMMERCE hold another one in January 2009. cover the management and enforcement Vietnam currently faces an estimated costs of the Alaska Individual Fishing National Oceanic and Atmospheric deficit of $100 million per year in Quota (IFQ) Program. This Cost Administration funding its educational plans, and is Recovery Program requires IFQ permit trying to close the gap by seeking holders to submit information about the Proposed Information Collection; international support in paying for and value of landings of IFQ species and to Comment Request; Application and helping implement reforms. In the field calculate and submit fees. The Cost Reports for Scientific Research and of ICT, Vietnam is facing a shortage of Recovery Program also requires Enhancement Permits Under the qualified workers to meet the increasing Registered Buyers to submit information Endangered Species Act need for IT skills as it modernizes its about the value and volume of landings AGENCY: National Oceanic and infrastructure. U.S. companies also hope of IFQ species. to create opportunities for trade and Atmospheric Administration (NOAA). investment as ICT grows stronger in II. Method of Collection ACTION: Notice. Vietnam. Reports and payments may be SUMMARY: The Department of submitted online or mailed. Dated: October 14, 2008. Commerce, as part of its continuing Robin Layton, III. Data effort to reduce paperwork and Director, Office of Technology and Electronic OMB Control Number: 0648–0398. respondent burden, invites the general Commerce. Form Number: None. public and other Federal agencies to [FR Doc. E8–24880 Filed 10–17–08; 8:45 am] Type of Review: Regular submission. take this opportunity to comment on BILLING CODE 3510–DR–P Affected Public: Business or other for- proposed and/or continuing information profit organizations; individuals or collections, as required by the households. Paperwork Reduction Act of 1995. DEPARTMENT OF COMMERCE Estimated Number of Respondents: DATES: Written comments must be 2,726. submitted on or before December 19, National Oceanic and Atmospheric Estimated Time per Response: IFQ 2008. Administration Permit Holder Fee Submission Form, ADDRESSES: Direct all written comments IFQ Registered Buyer Ex-vessel Value Proposed Information Collection; to Diana Hynek, Departmental and Volume Report and appeal process, Comment Request; Alaska Individual Paperwork Clearance Officer, 2 hours each. Fishing Quota Cost Recovery Program Department of Commerce, Room 6625, Requirements Estimated Total Annual Burden Hours: 5,452. 14th and Constitution Avenue, NW., Estimated Total Annual Cost to Washington, DC 20230 (or via the AGENCY: National Oceanic and Internet at [email protected]). Atmospheric Administration (NOAA). Public: $3,000 in recordkeeping/ reporting costs. FOR FURTHER INFORMATION CONTACT: ACTION: Notice. Requests for additional information or IV. Request for Comments copies of the information collection SUMMARY: The Department of Comments are invited on: (a) Whether instrument and instructions should be Commerce, as part of its continuing the proposed collection of information directed to Gary Rule, (503) 230–5424 or effort to reduce paperwork and is necessary for the proper performance [email protected]. respondent burden, invites the general of the functions of the agency, including SUPPLEMENTARY INFORMATION: public and other Federal agencies to whether the information shall have take this opportunity to comment on practical utility; (b) the accuracy of the I. Abstract proposed and/or continuing information agency’s estimate of the burden The Endangered Species Act of 1973 collections, as required by the (including hours and cost) of the (ESA; 16 U.S.C. 1531 et seq.) imposed Paperwork Reduction Act of 1995. proposed collection of information; (c) prohibitions against the taking of DATES: Written comments must be ways to enhance the quality, utility, and endangered species. Section 10 of the submitted on or before December 19, clarity of the information to be ESA allows permits authorizing the 2008. collected; and (d) ways to minimize the taking of endangered species for

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research/enhancement purposes. The whether the information shall have contact NMFS by e-mail at: corresponding regulations established practical utility; (b) the accuracy of the [email protected]; procedures for persons to apply for such agency’s estimate of the burden by facsimile at: 562–980–4027, permits. In addition, the regulations set (including hours and cost) of the Attention: Melissa Neuman. forth specific reporting requirements for proposed collection of information; (c) FOR FURTHER INFORMATION CONTACT: such permit holders. The regulations ways to enhance the quality, utility, and Melissa Neuman, NMFS, Southwest contain two sets of information clarity of the information to be Region at 562–980–4115. collections: (1) Applications for collected; and (d) ways to minimize the SUPPLEMENTARY INFORMATION: research/enhancement permits, and (2) burden of the collection of information reporting requirements for permits on respondents, including through the Background issued. use of automated collection techniques Recovery of endangered or threatened The required information is used to or other forms of information animals or plants is a primary goal of evaluate the impacts of the proposed technology. the endangered species program. A activity on endangered species, to make Comments submitted in response to species is considered recovered once the the determinations required by the ESA this notice will be summarized and/or species’ ecosystem is restored and/or prior to issuing a permit, and to included in the request for OMB threats to the species are removed so establish appropriate permit conditions. approval of this information collection; that self-sustaining and self-regulating To issue permits under ESA Section they also will become a matter of public populations can be supported as 10(a)(1)(A), the National Marine record. persistent members of native biotic Fisheries Service (NMFS) must Dated: October 15, 2008. communities. Recovery plans describe determine that (1) such exceptions were Gwellnar Banks, actions considered necessary for the applied for in good faith, (2) if granted conservation of the species, establish and exercised, will not operate to the Management Analyst, Office of the Chief Information Officer. criteria for downlisting or delisting disadvantage of such endangered listed species, and estimate the time and species, and (3) will be consistent with [FR Doc. E8–24888 Filed 10–17–08; 8:45 am] BILLING CODE 3510–22–P cost for implementing the measures the purposes and policy set forth in needed for recovery. Section 2 of the ESA. White abalone (Haliotis sorenseni) The currently approved application DEPARTMENT OF COMMERCE was listed as the first federally and reporting requirements are being endangered marine invertebrate under revised to apply only to Pacific salmon National Oceanic and Atmospheric the United States Endangered Species and steelhead, as requirements Administration Act of 1973 (16 U.S.C. 1531 et seq.) regarding other species are being RIN 0648–XK57 (ESA) in May 2001. The ESA requires addressed in a separate information that NOAA’s National Marine Fisheries collection. Clarification of some of the Endangered and Threatened Species; Service (NMFS) develop and implement instructions will also be provided, based Recovery Plan for White Abalone recovery plans for the conservation and on previous applicants’ responses and survival of threatened and endangered submitted applications and reports. AGENCY: National Marine Fisheries species under its jurisdiction, unless it II. Method of Collection Service (NMFS), National Oceanic and is determined that such plans would not Atmospheric Administration (NOAA), promote the conservation of the species. Respondents have a choice of either Commerce. Accordingly, during the summer of electronic or paper forms. Methods of ACTION: Notice of availability. 2002, NMFS appointed a recovery team submittal include e-mail of electronic comprised of experts in the fields of forms, and mail and facsimile SUMMARY: The National Marine abalone biology and ecology, transmission of paper forms. Fisheries Service (NMFS) announces the conservation biology, genetics, III. Data availability of a final recovery plan for population dynamics and modeling, the white abalone (Haliotis sorenseni). OMB Control Number: 0648–0402. pathology, aquaculture, and marine This endangered gastropod is a long- policy to develop a recovery plan (Plan) Form Number: None. lived, slow moving bottom dweller and Type of Review: Regular submission. as mandated by the ESA. is a member of the California Haliotids. Affected Public: Non-profit NMFS sought a scientific review of Currently, isolated survivors have been institutions; State, local, or tribal the draft Plan by 12 experts in October identified along the mainland coast in government; business or other for-profit 2005. NMFS requested that the Santa Barbara County and at some of the organizations. scientific reviewers consider: (1) issues offshore islands and banks along the Estimated Number of Respondents: and assumptions relating to the central California coast. NMFS’ ultimate 131. biological and ecological information of Estimated Time per Response: Permit goal is to increase white abalone the draft Plan, and (2) scientific data applications, 20 hours; permit abundance to viable and self-sustaining relating to the tasks in the proposed modification requests and final reports, levels such that the species can be recovery program. Four reviewers 10 hours; and annual reports, 5 hours. downlisted to threatened status and responded to NMFS’ request. The Estimated Total Annual Burden eventually removed from the recovery team reconvened in June 2006 Hours: 865. Endangered Species List. to consider the reviewer’s comments Estimated Total Annual Cost to ADDRESSES: The final Plan can be and incorporate changes to the draft Public: $18,646. obtained via the Internet at: http:// Plan accordingly. On November 2, 2006 www.nmfs.noaa.gov or by submitting a (71 FR 64512) the draft Plan was made IV. Request for Comments request to the Assistant Regional available for public comment. NMFS Comments are invited on: (a) Whether Administrator, Protected Resources considered all substantive comments the proposed collection of information Division, Southwest Region, NMFS, 501 and information presented during the is necessary for the proper performance West Ocean Blvd., Suite 4200, Long public comment period in the course of of the functions of the agency, including Beach, CA 90802–4213. You may also finalizing this Plan. We will forward

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substantive comments regarding localities in the USA and Mexico are (3) delays due to national security recovery plan implementation to reoccupied and meet the recovery issues, NTIA will, upon receipt of appropriate Federal or other entities so criteria. proper documentation, consider the that they can take these comments into Dated: October 14, 2008. application as having been received by account during the course of Angela Somma, the deadline. NTIA will not accept implementing recovery actions. applications posted on the Closing Date Chief, Endangered Species Division, Office The purposes of the Plan are to: (1) or later and received after this deadline. delineate those aspects of white abalone of Protected Resources, National Marine Fisheries Service. ADDRESSES: To obtain a printed biology, life history, and threats that are application package, submit completed pertinent to its endangerment and [FR Doc. E8–24921 Filed 10–17–08; 8:45 am] BILLING CODE 3510–22–S applications, or send any other recovery; (2) outline and justify a correspondence, write to PTFP at the strategy to achieve recovery; (3) identify following address (please note the new the site-specific management actions DEPARTMENT OF COMMERCE room number): NTIA/PTFP, Room H– necessary to achieve recovery; (4) 4812, U.S. Department of Commerce, identify goals and criteria by which to National Telecommunications and 1401 Constitution Avenue, NW., measure the achievement of recovery; Information Administration Washington, DC 20230. Application (5) serve as an outreach tool by [Docket No. 0810141353–81354–01] materials may be obtained electronically articulating the reasons for white via the Internet at http:// abalone’s endangerment, and by Public Telecommunications Facilities www.ntia.doc.gov/ptfp or http:// explaining why the particular suite of www.grants.gov. recovery actions described is the most Program: Closing Date FOR FURTHER INFORMATION CONTACT: effective and efficient approach to AGENCY: National Telecommunications achieving recovery; (6) help potential and Information Administration (NTIA), William Cooperman, Director, Public cooperators and partners understand the Commerce. Broadcasting Division, telephone: (202) rationale behind the recovery actions 482–5802; fax: (202) 482–2156. ACTION: Notice of Closing Date for identified, and assist them in Information about the PTFP can also be Solicitation of Applications; Catalog of obtained electronically via the Internet identifying how they can facilitate Federal Domestic Assistance recovery; (7) serve as a tool for at http://www.ntia.doc.gov/ptfp. monitoring recovery activities; and (8) SUMMARY: Pursuant to the Consolidated SUPPLEMENTARY INFORMATION: be used to obtain funding for NMFS and Security, Disaster Assistance, and Electronic Access its partners by identifying necessary Continuing Appropriations Act, 2009. recovery actions and their relative Public Law No. 110–329 (2008), the The full funding opportunity priority in the recovery process. National Telecommunications and announcement for the PTFP fiscal year The objective of this Plan is to Information Administration (NTIA), (FY) 2009 grant cycle is available provide a framework for the recovery of U.S. Department of Commerce, through http://www.Grants.gov or by white abalone so that protection under announces the solicitation of contacting the PTFP office at the the ESA is no longer necessary. As applications for planning and address noted above. recovery criteria are met, the status of construction grants for public Funding Availability the white abalone will be reviewed and telecommunications facilities under the Issuance of grants is subject to the considered for reclassification to Public Telecommunications Facilities availability of FY 2009 funds. At this threatened status or for removal from Program (PTFP). The PTFP assists, time, the Congress has passed the the Federal List of Endangered and through matching grants, in the Consolidated Security, Disaster Threatened Wildlife and Plants (50 CFR planning and construction of public Assistance, and Continuing part 17). The white abalone will be telecommunications facilities in order Appropriations Act, 2009. Public Law considered for delisting when: (1) the to: (1) Extend delivery of services to as No. 110–329 (2008), to fund operations density of emergent (detectable by many citizens as possible by the most of the PTFP through March 6, 2009. human observation without substrate cost-effective means, including use of Further notice will be made in the disturbance) animals (short term) is broadcast and non-broadcast Federal Register about the final status of greater than 2, 000 per hectare for 75 technologies; (2) increase public funding for this program at the percent of the geographic localities; (2) telecommunications services and a total of 380,000 animals are appropriate time. For FY 2008, NTIA facilities available to, operated by, and maintained in the wild, distributed awarded $18.5 million in PTFP funds to controlled by minorities and women; among all geographic localities in the 109 projects, including 61 radio awards, and (3) strengthen the capability of USA and Mexico; (3) the proportion of 45 television awards and 3 existing public television and radio size of emergent animals in 75 percent nonbroadcast awards. The radio awards stations to provide public of geographic localities includes at least ranged from $8,800 to $337,684. The telecommunications services to the 85 percent intermediate-size animals (90 television awards ranged from $10,000 public. to 130 mm); (4) proportion of size of to $801,345. The nonbroadcast awards emergent animals in 75 percent of DATES: Applications must be received ranged from $89,853 to $187,931. geographic localities includes no more prior to 5 p.m. Eastern Time (Closing than 15 percent large animals (≤130 Time), December 18, 2008 (Closing Statutory and Regulatory Authority mm); (5) there is a stable or increasing Date). Applications submitted by The Public Telecommunications estimate of geometric population growth facsimile are not acceptable. If an Facilities Program is authorized by the (lambda ≥1) for >75 percent of the application is received after the Closing Communications Act of 1934, as geographic localities over a ten year Date due to (1) carrier error, when the amended, 47 U.S.C. 390–393, 397– period; and (6) there is reoccupation of carrier accepted the package with a 399(b). The PTFP operates pursuant to white abalone over a spatial scale that guarantee for delivery by the Closing rules (1996 Rules) which were encompasses their historic range such Date and Closing Time, (2) significant published on November 8, 1996 (61 FR that 75 percent of the geographic weather delays or natural disasters, or 57966). Copies of the 1996 Rules (15

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CFR Part 2301) are posted on the NTIA The six evaluation criteria are (1) Register notices for additional Internet site at http://www.ntia.doc.gov/ Applicant Qualifications, (2) Financial information. Organizations can receive a Rules/currentrules.htm, and NTIA will Qualifications, (3) Project Objectives, (4) DUNS number at no cost by calling the make printed copies available to Urgency, (5) Technical Qualifications dedicated toll-free DUNS Number applicants upon request. (construction applicants only) or request line 1–866–705–5711 or via the Internet (http:// Supplemental Policies Planning Qualifications (planning applicants only), and (6) Special www.dunandbradstreet.com). The following supplemental policies Consideration. will also be in effect: The Department of Commerce Pre- (A) Applicants may file emergency Funding Priorities and Selection Award Notification Requirements for applications at any time. Factors Grants and Cooperative Agreements (B) Applicants may file requests for See 15 CFR 2301.4 and the The Department of Commerce Pre- Federal Communications Commission supplemental policies above for a Award Notification of Requirements for (FCC) authorizations with the FCC after description of the PTFP Priorities and Grants and Cooperative Agreements the PTFP Closing Date. Grant applicants 15 CFR 2301.18 for the Selection contained in the Federal Register notice for Ku-band satellite uplinks may Factors. of February 11, 2008, (73 FR 7696) is submit FCC applications after a PTFP applicable to this solicitation. award is made. NTIA may accept FCC Cost Sharing Requirements Limitation of Liability authorizations that are in the name of an PTFP requires cost sharing. By statute, organization other than the PTFP PTFP cannot fund a construction project In no event will the Department of applicant. for more than 75 per cent of the eligible Commerce be responsible for proposal (C) PTFP applicants are not required project costs. NTIA has established a preparation costs if this program fails to to submit copies of their PTFP policy of funding most new public receive funding or is cancelled because applications to the FCC, nor are they broadcasting station activation projects of other agency priorities. Publication of required to submit copies of the FCC at a 75 per cent federal share, and most this announcement does not obligate the transmittal cover letters as part of their other television, radio and nonbroadcast agency to award any specific project or PTFP applications. PTFP applicants for projects at a 50 per cent federal share. to obligate any available funds. distance learning projects must notify NTIA can fund planning applications Paperwork Reduction Act the state telecommunications agencies up to 100 per cent of the eligible project in the states in which they are located, costs, but has established a policy of Notwithstanding any other provision but they are not required to notify every funding planning applications at a 75 of the law, no person is required to state telecommunications agency in a per cent federal share. Any applicant respond to, nor shall any person be potential service area. can request federal funding greater than subject to a penalty for failure to comply (D) For digital television conversion PTFP’s policy, up to the statutory with, a collection of information subject to the requirements of the Paperwork projects, NTIA has created two new maximum, and provide justification for Reduction Act (PRA), unless that Subpriorities in the Broadcast Other the request. category. collection displays a currently valid (E) For digital radio conversion Intergovernmental Review Office of Management and Budget projects, NTIA has created a new PTFP applications are subject to (OMB) control number. The PTFP Subpriority in the Broadcast Other Executive Order 12372, application form has been cleared under category. ‘‘Intergovernmental Review of Federal OMB Control No. 0660–0003. Catalog of Domestic Federal Assistance Programs,’’ if the state in which the Executive Order 13132 applicant organization is located 11.550, Public Telecommunications It has been determined that this notice participates in the process. Usually Facilities Program. does not contain policies with submission to the State Single Point of Federalism implications as that term is Eligibility Contact (SPOC) needs to be only the SF defined in Executive Order 13132. To apply for and receive a PTFP 424 and PTFP–2 pages of the Construction Grant or Planning Grant, application, but applicants should Administrative Procedure Act/ an applicant must be: (a) A public or contact their own SPOC offices to find Regulatory Flexibility Act noncommercial educational broadcast out about and comply with its Prior notice and opportunity for station; (b) a noncommercial requirements. The PTFP Internet site public comment are not required by the telecommunications entity; (c) a system has a link to the Office of Management Administrative Procedure Act or any of public telecommunications entities; and Budget (OMB) home page which other law for this rule concerning (d) a non-profit foundation, corporation, has the names and addresses of the grants, benefits, and contracts (5 U.S.C. institution, or association organized SPOC offices. Applicants may directly 553(a)(2)). Because notice and primarily for educational or cultural access the OMB Internet site at http:// opportunity for comment are not purposes; or (e) a state, local, or Indian www.whitehouse.gov/omb/grants/ required pursuant to 5 U.S.C. 553 or any tribal government (or agency thereof), or spoc.html. Printed copies of the SPOC other law, the analytical requirements of a political or special purpose list are available from PTFP. the Regulatory Flexibility Act (5 U.S.C. subdivision of a state. Universal Identifier 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not Evaluation and Selection Process All applicants (nonprofit, state, local been prepared. See 15 CFR 2301.16 for a description government, universities, and tribal of the Technical Evaluation and 15 CFR organizations) will be required to Dr. Bernadette McGuire-Rivera, 2301.18 for the Selection Process. provide a Dun and Bradstreet Data Associate Administrator, Office of Universal Numbering System (DUNS) Telecommunications and Information Evaluation Criteria number during the application process. Applications. See 15 CFR 2301.17 for a full See the October 30, 2002 (67 FR 66177) [FR Doc. E8–24849 Filed 10–17–08; 8:45 am] description of the Evaluation Criteria. and April 8, 2003 (68 FR 17000) Federal BILLING CODE 3510–60–P

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DEPARTMENT OF COMMERCE expiration date of the patent (October Agency, 655 15th Street, NW., Suite 14, 2008), interim extension of the 800, Washington, DC 20005, (202) 220– [Docket No. PTO–P–2008–0042] patent term under 35 U.S.C. 156(d)(5) is 5477. United States Patent and Trademark appropriate. Dated: October 14, 2008. Office An interim extension under 35 U.S.C. Adrienne Poteat, 156(d)(5) of the term of U.S. Patent No. Acting Director. Grant of Interim Extension of the Term 4,919,140 is granted for a period of one [FR Doc. E8–24927 Filed 10–17–08; 8:45 am] of U.S. Patent No. 4,919,140; AndaraTM year from the original expiration date of OFSTM System the patent, i.e., until October 14, 2009. BILLING CODE 3129–01–P Dated: October 14, 2008. AGENCY: United States Patent and Jon W. Dudas, Trademark Office. DEPARTMENT OF DEFENSE Under Secretary of Commerce for Intellectual ACTION: Notice of interim patent term Property and Director of the United States Office of the Secretary extension. Patent and Trademark Office. SUMMARY: The United States Patent and [FR Doc. E8–24881 Filed 10–17–08; 8:45 am] Missile Defense Advisory Committee Trademark Office has issued a BILLING CODE 3510–62–P certificate under 35 U.S.C. 156(d)(5) for AGENCY: Department of Defense; Missile a one-year interim extension of the term Defense Agency (MDA). of U.S. Patent No. 4,919,140. COURT SERVICES AND OFFENDER ACTION: Notice of closed meeting. SUPERVISION AGENCY FOR THE FOR FURTHER INFORMATION CONTACT: SUMMARY: DISTRICT OF COLUMBIA Under the provisions of the Mary C. Till by telephone at (571) 272– Federal Advisory Committee Act of 7755; by mail marked to her attention 1972 (5 U.S.C., Appendix, as amended) and addressed to the Commissioner for Senior Executive Service; Performance Review Board; Members and the Government in the Sunshine Patents, Mail Stop Patent Ext., P.O. Box Act of 1976 (5 U.S.C. 552b, as amended) 1450, Alexandria, VA 22313–1450; by AGENCY: Court Services and Offender and 41 CFR 102–3.150, the Department fax marked to her attention at (571) 273– Supervision Agency for the District of of Defense announces that the following 7755, or by e-mail to Columbia. Federal advisory committee meeting of [email protected]. ACTION: Notice. the Missile Defense Advisory SUPPLEMENTARY INFORMATION: Section Committee. SUMMARY: Section 4314(c) of Title 5, 156 of Title 35, United States Code, DATES: Wednesday, October 29, 2008 (9 generally provides that the term of a U.S.C. (as amended by the Civil Service Reform Act of 1978) requires each a.m. to 5:30 p.m.) and Thursday, patent may be extended for a period of October 30, 2008 (9 a.m. to 5:30 p.m.). up to five years if the patent claims a agency to establish, in accordance with regulations prescribed by the Office of Security clearance and visit requests are product, or a method of making or using required for access. a product, that has been subject to Personnel Management, one or more ADDRESSES: certain defined regulatory review, and Performance Review Boards (PRB) to 7100 Defense Pentagon, that the patent may be extended for review, evaluate and make a final Washington, DC 20301–7100. interim periods of up to a year if the recommendation on performance FOR FURTHER INFORMATION CONTACT: Mr. regulatory review is anticipated to appraisals assigned to individual Al Bready, Designated Federal Officer at extend beyond the expiration date of the members of the agency’s Senior [email protected], phone/voice mail 703– patent. Executive Service. The PRB established 695–6438, or mail at 7100 Defense On September 29, 2008, the patent for the Court Services and Offender Pentagon, Washington, DC 20301–7100. owner, Purdue Research Foundation, Supervision Agency (CSOSA), including SUPPLEMENTARY INFORMATION: timely filed an application under 35 the District of Columbia Pretrial Purpose of the Meeting: At this U.S.C. 156(d)(5) for an interim extension Services Agency, an independent entity meeting, the Committee will receive of the term of U.S. Patent No. 4,919,140. within CSOSA, also makes classified briefings by Missile Defense The patent claims the medical device recommendations to the agency head Agency senior staff, Program Managers, AndaraTM OFSTM System and a method regarding SES performance awards, rank senior Department of Defense leaders, of using the AndaraTM OFSTM System. awards and bonuses. Section 4314(c)(4) representatives from industry and the The application indicates that a requires that notice of appointment of Services on the policy, technical, and Humanitarian Device Exemption, HDE Performance Review Board members be programmatic aspects of developing and 070002, for the medical device published in the Federal Register. deploying space-based sensors and AndaraTM OFSTM System has been filed The following persons have been interceptors that could provide for the and is currently undergoing regulatory appointed to serve as members of the defense of the U.S. Homeland, deployed review before the Food and Drug Performance Review Board for the Court forces, allies, friends from ballistic Administration for permission to market Services and Offender Supervision missile attack; and countering adversary or use the product commercially. Agency: Adrienne Poteat, Thomas space systems and anti-satellite weapon Review of the application indicates Williams, Jasper Ormond, Cedric systems. that except for permission to market or Hendricks, James Williams, Linda Mays, Agenda: Topics tentatively scheduled use the product commercially, the Arthur Elkins, William Kirkendale, for classified discussion include, but are subject patent would be eligible for an Susan Shaffer, Clifford Keenan, and Kim not limited to program status for the extension of the patent term under 35 Whatley from October 1, 2008, to Kinetic Energy Interceptor/Multiple Kill U.S.C. 156, and that the patent should September 30, 2010. Vehicle, Space Protection, and Space be extended for one year as required by FOR FURTHER INFORMATION CONTACT: Tracking and Surveillance System; 35 U.S.C. 156(d)(5)(B). Because it is Tonya Turner, Deputy Associate administrative work; and development apparent that the regulatory review Director for Human Resources, Court of draft outbrief to the Director, Missile period will continue beyond the original Services and Offender Supervision Defense Agency.

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Meeting Accessibility: Pursuant to 5 Dated: October 14, 2008. closed to the public. The Director, U.S.C. 552b, as amended, and 41 CFR Patricia L. Toppings, Missile Defense Agency, in consultation 102–3.155 the Missile Defense Agency OSD Federal Register Liaison Officer, with the Missile Defense Agency Office has determined that the meeting shall be Department of Defense. of General Counsel, has determined in closed to the public. The Director, [FR Doc. E8–24844 Filed 10–17–08; 8:45 am] writing that the public interest requires Missile Defense Agency, in consultation BILLING CODE 5001–06–P that all sessions of the committee’s with the Missile Defense Agency Office meeting will be closed to the public of General Counsel, has determined in because they will be concerned with writing that the public interest requires DEPARTMENT OF DEFENSE classified information and matters that all sessions of the committee’s covered by section 5 U.S.C. 552b(c)(1). meeting will be closed to the public Office of the Secretary because they will be concerned with Committee’s Designated Federal classified information and matters Missile Defense Advisory Committee Officer: Mr. Al Bready, [email protected], phone/voice mail 703–695–6438, or covered by section 5 U.S.C. 552b(c)(1). AGENCY: Department of Defense; Missile mail at 7100 Defense Pentagon, Committee’s Designated Federal Defense Agency (MDA). Washington, DC 20301–7100. Officer: Mr. Al Bready, [email protected], ACTION: Notice of closed meeting. phone/voice mail 703–695–6438, or Written Statements: Pursuant to 41 mail at 7100 Defense Pentagon, SUMMARY: Under the provisions of the CFR 102–3.105(j) and 102–3.140, and Washington, DC 20301–7100. Federal Advisory Committee Act of section 10(a)(3) of the Federal Advisory Written Statements: Pursuant to 41 1972 (5 U.S.C., Appendix, as amended) Committee Act of 1972, the public or CFR 102–3.105(j) and 102–3.140, and and the Government in the Sunshine interested organizations may submit section 10(a)(3) of the Federal Advisory Act of 1976 (5 U.S.C. 552b, as amended) written statements to the membership of Committee Act of 1972, the public or and 41 CFR 102–3.150, the Department the Missile Defense Advisory interested organizations may submit of Defense announces that the following Committee about its mission and written statements to the membership of Federal advisory committee meeting of functions. Written statements may be the Missile Defense Advisory the Missile Defense Advisory submitted at any time or in response to Committee about its mission and Committee. the stated agenda of a planned meeting functions. Written statements may be DATES: Wednesday, November 5, 2008 of the Missile Defense Advisory submitted at any time or in response to (8 a.m. to 5 p.m.). Security clearance Committee. the stated agenda of a planned meeting and visit requests are required for All written statements shall be of the Missile Defense Advisory access. submitted to the Designated Federal Committee. ADDRESSES: 7100 Defense Pentagon, Officer for the Missile Defense Advisory All written statements shall be Washington, DC 20301–7100. Committee, in the following formats: submitted to the Designated Federal FOR FURTHER INFORMATION CONTACT: Mr. One hard copy with original signature Officer for the Missile Defense Advisory Al Bready, Designated Federal Officer at and one electronic copy via e-mail Committee, in the following formats: [email protected], phone/voice mail 703– (acceptable file formats: Adobe Acrobat One hard copy with original signature 695–6438, or mail at 7100 Defense PDF, MS Word or MS PowerPoint), and and one electronic copy via e-mail Pentagon, Washington, DC 20301–7100. this individual will ensure that the (acceptable file formats: Adobe Acrobat SUPPLEMENTARY INFORMATION: written statements are provided to the PDF, MS Word or MS PowerPoint), and Purpose of the Meeting: At this membership for their consideration. this individual will ensure that the meeting, the Committee will receive Contact information for the Designated written statements are provided to the classified briefings by Missile Defense Federal Officer is as stated above and membership for their consideration. Agency senior staff, Program Managers, Contact information for the Designated can also be obtained from the GSA’s senior Department of Defense leaders, Federal Advisory Committee Act Federal Officer is as stated above and representatives from industry and the can also be obtained from the GSA’s Database—https://www.fido.gov/ Services on the policy, technical, and facadatabase/public.asp. Federal Advisory Committee Act programmatic aspects of developing and Database—https://www.fido.gov/ deploying space-based sensors and Statements being submitted in facadatabase/public.asp. interceptors that could provide for the response to the agenda mentioned in Statements being submitted in defense of the U.S. Homeland, deployed this notice must be received by the response to the agenda mentioned in forces, allies, friends from ballistic Designated Federal Officer at the this notice must be received by the missile attack; and countering adversary address listed at least five calendar days Designated Federal Officer at the space systems and anti-satellite weapon prior to the meeting which is the subject address listed at least five calendar days systems. of this notice. Written statements prior to the meeting which is the subject Agenda: Topics tentatively scheduled received after this date may not be of this notice. Written statements for classified discussion include, but are provided to or considered by the Missile received after this date may not be not limited to follow-up briefings on Defense Advisory Committee until its provided to or considered by the Missile Space Protection, MDA Space next meeting. The Designated Federal Defense Advisory Committee until its Architecture Study, External Sensors Officer will review all timely next meeting. The Designated Federal Laboratory, and Space Tracking and submissions with the Missile Defense Officer will review all timely Surveillance System; administrative Advisory Committee Chairperson and submissions with the Missile Defense work; and development of final outbrief ensure they are provided to all members Advisory Committee Chairperson and to the Director, Missile Defense Agency. of the Missile Defense Advisory ensure they are provided to all members Meeting Accessibility: Pursuant to 5 Committee before the meeting that is the of the Missile Defense Advisory U.S.C. 552b, as amended, and 41 CFR subject of this notice. Committee before the meeting that is the 102–3.155 the Missile Defense Agency subject of this notice. has determined that the meeting shall be

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Dated: October 14, 2008. project under the National action and to ensure compliance with Patricia L. Toppings, Environmental Policy Act (NEPA). The the NEPA, CEQA, and other pertinent OSD Federal Register Liaison Officer, Conservancy is the lead agency for this laws and regulations. Department of Defense. project under the California The purpose of the proposed ATF is [FR Doc. E8–24845 Filed 10–17–08; 8:45 am] Environmental Quality Act (CEQA). to maximize the operational flexibility BILLING CODE 5001–06–P DATES: Submit comments by: December of the HWRP to accommodate dredged 1, 2008. material from both large and small ADDRESSES: Written comments about the dredging projects, as well as maximize DEPARTMENT OF DEFENSE proposed action and ATF SEIS/EIR can the potential for beneficial use of Department of the Air Force be addressed to: Cynthia Fowler or Fari dredged material at the HWRP site. Four Tabatabai, U.S. Army Corps of alternatives are analyzed in this Notice of Availability for Non- Engineers, San Francisco District, 1455 document: Alternative 1: No Action, Exclusive, Exclusive or Partially Market Street, San Francisco, CA 94103; which includes the authorized use of a Exclusive Licensing of Invention [email protected]; 415–503– hydraulic off-loader; Alternative 2: 6870. Tom Gandesbery, California State Unconfined ATF (Proposed Action); SUMMARY: Pursuant to the provisions of Coastal Conservancy, 1330 Broadway, Alternative 3: Confined ATF; and 37 CFR 404.4, the Department of the Air 13th Floor, Oakland, CA 94612; Alternative 4: Direct Channel to BMKV Force announces the availability for [email protected]; (510) 286– Basin. Alternative 1 would include a licensing of the invention described in 1015. floating and pile-secured off-loader Air Force invention number AFD 881, facility, while Alternatives 2 and 3 FOR FURTHER INFORMATION CONTACT: entitled Light Emitting Diode with a would include construction of an in-Bay Cynthia Fowler or Fari Tabatabai, U.S. Deoxyribonucleic Acid (DNA) ATF basin. Alternative 3 would include Army Corps of Engineers, San Francisco Biopolymer Phosphor Based Coating for incorporation of a structural enclosure District, 1455 Market Street, San Solid State Lighting Object. around the perimeter of the ATF basin. Francisco, CA 94103; cespn-et- FOR FURTHER INFORMATION CONTACT: Air Three of the alternatives (1–3) would [email protected]; 415–503–6870. Force Material Command Law Office, require a slurry delivery pipeline and Betsy Wilson or Tom Gandesbery, AFMC LO/JAZ, 2240 B. Street, Bldg. 11, associated booster pump platform to California State Coastal Conservancy, Wright-Patterson AFB 45433–7109, transport material. Alternative 4 would 1330 Broadway, 13th Floor, Oakland, attention, Bart S. Hersko. Telephone involve dredging a direct channel from CA 94612; [email protected] or (937) 255–2838; fax (937) 255–3733 or the vicinity of the in-Bay disposal site, [email protected]; (510) 286– e-mail: [email protected]. SF–10, to the BMKV site and 1015. Bao-Anh Trinh, construction of a transfer basin on the Air Force Federal Register Liaison Officer. SUPPLEMENTARY INFORMATION: This BMKV site. document is a Supplemental [FR Doc. E8–24838 Filed 10–17–08; 8:45 am] A public meeting will be held on Environmental Impact Statement/ BILLING CODE 5001–05–P Wednesday, November 12, 2008 from Environmental Impact Report (SEIS/ 5:30–7:30 p.m. at the Bay Model Visitor EIR) to the 1998 HWRP Final EIS/EIR, Center, Multi-Purpose Room, 2100 DEPARTMENT OF DEFENSE the 2003 Bel Marin Keys Unit V Bridgeway, Sausalito, CA. Expansion (BMKV) Final SEIS/EIR, and Department of the Army the 2006 Supplemental Environmental The Hamilton Wetland Restoration Assessment (EA) to the Oakland Harbor Project Dredged Material Aquatic Department of the Army; Corps of Navigation Improvement (¥50 ft.) Transfer Facility SEIS/EIR is available Engineers Project Final EIS/EIR. The HWRP Final for review at http:// EIS/EIR and the BMKV Expansion Final www.hamiltonwetlands.org. Copies of Availability of a Draft Supplemental SEIS/EIR can be found at: http:// the document are also available for Environmental Impact Statement/ www.hamiltonwetlands.org/ review during normal business hours at: Environmental Impact Report for the documents.html. As described in these (1) Marin Civic Center, 3051 Civic Hamilton Wetland Restoration Project, previous reports, the authorized means Center Drive #427, San Rafael, CA Dredged Material Aquatic Transfer of transporting dredged material to the 94903. Facility in Marin County, CA HWRP is via a hydraulic off-loader in (2) Marin County Free Library—South AGENCY: Department of the Army, U.S. San Pablo Bay that pumps dredged Novato, 476 Ignacio Boulevard, Novato, Army Corps of Engineers, DoD. material to the site through a submerged CA 94949. pipeline. Independent review, ACTION: Notice. (3) Novato Public Library, 1720 workshops with national experts, and a Novato Boulevard, Novato, CA 94947. SUMMARY: The U.S. Army Corps of value engineering study that considered Engineers (USACE) and California State economic and operational effects (4) Petaluma Regional Library, 100 Coastal Conservancy (Conservancy), in determined that a more efficient and Fairgrounds Drive, Petaluma, CA 94952. collaboration with the Long Term flexible method of transferring dredged (5) Sonoma County Central Library, Management Strategy for Dredged material should be evaluated. Therefore, 3rd and E Street, Santa Rosa, CA 95402. Material in San Francisco Bay (LTMS) the Hamilton Wetland Restoration (6) California State Coastal agencies, are proposing the use of an Project Dredged Material Aquatic Conservancy, 1330 Broadway, 13th aquatic transfer facility (ATF) to Transfer Facility SEIS/EIR (ATF SEIS/R) Floor, Oakland, CA 94612. beneficially use dredged material in evaluates alternative methods for the restoring tidal wetlands at the original transfer of dredged material to the Dated: October 10, 2008. Hamilton Wetland Restoration Project HWRP site. The ATF SEIS/EIR will Laurence M. Farrell, site and the Bel Marin Keys Unit V support decision making by USACE, the Lieutenant Colonel, U.S. Army, Commanding. Expansion site (collectively, the HWRP). Conservancy, and other responsible [FR Doc. E8–24848 Filed 10–17–08; 8:45 am] The USACE is the lead agency for this agencies to implement the proposed BILLING CODE 3710–19–P

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DEPARTMENT OF EDUCATION Note: The regulations in 34 CFR part 86 use the following address: http:// apply to institutions of higher education www.ed.gov/fund/grant/apply/ Office of Special Education and only. grantapps/index.html. Rehabilitative Services (OSERS); To obtain a copy from ED Pubs, write, Overview Information: Rehabilitation II. Award Information fax, or call the following: Education Services Administration (RSA)— Type of Award: Cooperative Publications Center, P.O. Box 1398, Rehabilitation Continuing Education agreement. Jessup, MD 20794–1398. Telephone, Program (RCEP)—Regional Technical Estimated Available Funds: The toll-free: 1–877–433–7827. FAX: (301) Assistance and Continuing Education Administration has requested 470–1244. If you use a (TACE) Centers; Notice Inviting $37,766,000 for the Rehabilitation telecommunications device for the deaf Applications for New Awards for Fiscal Training program for FY 2009, of which (TDD), call, toll-free: 1–877–576–7734. Year (FY) 2009 we intend to use an estimated You can contact ED Pubs at its Web $1,598,832 for this competition. The site, also: www.ed.gov/pubs/ Catalog of Federal Domestic actual level of funding, if any, depends edpubs.html or at its e-mail address: Assistance (CFDA) Number: 84.264A. on final congressional action. However, [email protected]. DATES: we are inviting applications to allow If you request an application package Applications Available: October 20, enough time to complete the grant from ED Pubs, be sure to identify this 2008. process if Congress appropriates funds program or competition as follows: Deadline for Transmittal of for this program. CFDA number 84.264A. Applications: November 19, 2008. Maximum Award: We will reject any Individuals with disabilities can Deadline for Intergovernmental application that proposes a budget obtain a copy of the application package Review: January 20, 2009. exceeding the maximum amount for a in an alternative format (e.g., Braille, single budget period of 12 months, as large print, audiotape, or computer Full Text of Announcement follows: diskette) by contacting the person or I. Funding Opportunity Description Region II: $802,710. team listed under Alternative Format in Region III: $796,122. section VIII of this notice. Purpose of Program: The purpose of The Assistant Secretary for Special 2. Content and Form of Application the Rehabilitation Continuing Education Education and Rehabilitative Services Submission: Requirements concerning Program is to support training centers may change the maximum amount the content of an application, together that serve either a Federal region or through a notice published in the with the forms you must submit, are in another geographical area and provide Federal Register. the application package for this for a broad integrated sequence of competition. training activities that focus on meeting Note: We are accepting applications that propose to serve Department of Education Page Limit: The application narrative recurrent and common training needs of Regions II and III at this time. (Part III of the application) is where you, employed rehabilitation personnel the applicant, address the selection throughout a multi-State geographical Estimated Number of Awards: 2. criteria that reviewers use to evaluate area. Note: The Department is not bound by any estimates in this notice. your application. You must limit the Priority: This priority is from the application narrative (Part III) to the notice of final priority for this program, Project Period: Up to 60 months. equivalent of no more than 45 pages, published in the Federal Register on III. Eligibility Information using the following standards: June 5, 2008 (73 FR 32010). • A page is 8.5″ by 11″, on one side Absolute Priority: For FY 2009, this 1. Eligible Applicants: States and only, with 1″ margins at the top, bottom, priority is an absolute priority. Under public or nonprofit agencies and and both sides. organizations, including Indian tribes 34 CFR 75.105(c)(3) we consider only • Double space (no more than three and institutions of higher education. applications that meet this priority. lines per vertical inch) all text in the 2. Cost Sharing or Matching: The This priority is: application narrative, including titles, Secretary has determined that a grantee Regional Technical Assistance and headings, footnotes, quotations, must provide a match of at least 10 Continuing Education (TACE) Centers. references, and captions, as well as all percent of the total cost of the project text in charts, tables, figures, and Note: The full text of this priority is (34 CFR 389.40). included in the notice of final priority graphs. published in the Federal Register on June 5, Note: Under 34 CFR 75.562(c), an indirect • Use a font that is either 12 point or 2008 (73 FR 32010) and in the application cost reimbursement on a training grant is larger or no smaller than 10 pitch package. limited to the recipient’s actual indirect (characters per inch). costs, as determined by its negotiated • Program Authority: 29 U.S.C. 772. indirect cost rate agreement, or eight percent Use one of the following fonts: of a modified total direct cost base, Times New Roman, Courier, Courier Applicable Regulations: (a) The whichever amount is less. Indirect costs in New, or Arial. An application submitted Education Department General excess of the eight percent limit may not be in any other font (including Times Administrative Regulations (EDGAR) in charged directly, used to satisfy matching or Roman or Arial Narrow) will not be 34 CFR parts 74, 75, 77, 79, 80, 81, 82, cost-sharing requirements, or charged to accepted. 84, 85, 86, 97, 98, and 99. (b) The another Federal award. The page limit does not apply to Part regulations for this program in 34 CFR I, the cover sheet; Part II, the budget parts 385 and 389. (c) The notice of final IV. Application and Submission section, including the narrative budget priority and definitions, published in Information justification; Part IV, the assurances and the Federal Register on June 5, 2008 (73 1. Address to Request Application certifications; or the one-page abstract, FR 32010). Package: You can obtain an application the resumes, the bibliography, or the Note: The regulations in 34 CFR part 79 package via the Internet or from the letters of support. However, the page apply to all applicants except Federally Education Publications Center (ED limit does apply to all of the application recognized Indian tribes. Pubs). To obtain a copy via the Internet, narrative (Part III).

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We will reject your application if you at http://www.Grants.gov. Through this deadline date to begin the submission exceed the page limit or if you apply site, you will be able to download a process through Grants.gov. other standards and exceed the copy of the application package, • You should review and follow the equivalent of the page limit. complete it offline, and then upload and Education Submission Procedures for 3. Submission Dates and Times: submit your application. You may not e- submitting an application through Applications Available: October 20, mail an electronic copy of a grant Grants.gov that are included in the 2008. application to us. application package for this competition Deadline for Transmittal of We will reject your application if you to ensure that you submit your Applications: November 19, 2008. submit it in paper format unless, as application in a timely manner to the Applications for grants under this described elsewhere in this section, you Grants.gov system. You can also find the competition must be submitted qualify for one of the exceptions to the Education Submission Procedures electronically using the Grants.gov electronic submission requirement and pertaining to Grants.gov at http://e- Apply site (Grants.gov). For information submit, no later than two weeks before Grants.ed.gov/help/ (including dates and times) about how the application deadline date, a written GrantsgovSubmissionProcedures.pdf. to submit your application statement to the Department that you • To submit your application via electronically, or in paper format by qualify for one of these exceptions. Grants.gov, you must complete all steps mail or hand delivery if you qualify for Further information regarding in the Grants.gov registration process an exception to the electronic calculation of the date that is two weeks (see http://www.grants.gov/applicants/ submission requirement, please refer to before the application deadline date is get_registered.jsp). These steps include section IV. 6. Other Submission provided later in this section under (1) registering your organization, a Requirements in this notice. Exception to Electronic Submission multi-part process that includes We do not consider an application Requirement. registration with the Central Contractor that does not comply with the deadline You may access the electronic grant Registry (CCR); (2) registering yourself requirements. application for Rehabilitation as an Authorized Organization Individuals with disabilities who Continuing Education Program— Representative (AOR); and (3) getting need an accommodation or auxiliary aid Regional Technical Assistance and authorized as an AOR by your in connection with the application Continuing Education (TACE) Centers at organization. Details on these steps are process should contact the person listed http://www.Grants.gov. You must search outlined in the Grants.gov 3-Step under FOR FURTHER INFORMATION for the downloadable application Registration Guide (see http:// CONTACT in section VII in this notice. If package for this competition by the www.grants.gov/section910/ the Department provides an CFDA number. Do not include the Grants.govRegistrationBrochure.pdf). accommodation or auxiliary aid to an CFDA number’s alpha suffix in your You also must provide on your individual with a disability in search (e.g., search for 84.264, not application the same D–U–N–S Number connection with the application 84.264A). used with this registration. Please note process, the individual’s application Please note the following: that the registration process may take remains subject to all other • When you enter the Grants.gov site, five or more business days to complete, requirements and limitations in this you will find information about and you must have completed all notice. submitting an application electronically registration steps to allow you to submit Deadline for Intergovernmental through the site, as well as the hours of successfully an application via Review: January 20, 2009. operation. Grants.gov. In addition you will need to 4. Intergovernmental Review: This • Applications received by Grants.gov update your CCR registration on an competition is subject to Executive are date and time stamped. Your annual basis. This may take three or Order 12372 and the regulations in 34 application must be fully uploaded and more business days to complete. CFR part 79. Information about submitted and must be date and time • You will not receive additional Intergovernmental Review of Federal stamped by the Grants.gov system no point value because you submit your Programs under Executive Order 12372 later than 4:30:00 p.m., Washington, DC application in electronic format, nor is in the application package for this time, on the application deadline date. will we penalize you if you qualify for competition. Except as otherwise noted in this an exception to the electronic 5. Funding Restrictions: We reference section, we will not accept your submission requirement, as described regulations outlining funding application if it is received—that is, date elsewhere in this section, and submit restrictions in the Applicable and time stamped by the Grants.gov your application in paper format. Regulations section in this notice. system—after 4:30:00 p.m., Washington, • You must submit all documents 6. Other Submission Requirements: DC time, on the application deadline electronically, including all information Applications for grants under this date. We do not consider an application you typically provide on the following competition must be submitted that does not comply with the deadline forms: Application for Federal electronically unless you qualify for an requirements. When we retrieve your Assistance (SF 424), the Department of exception to this requirement in application from Grants.gov, we will Education Supplemental Information for accordance with the instructions in this notify you if we are rejecting your SF 424, Budget Information—Non- section. application because it was date and time Construction Programs (ED 524), and all a. Electronic Submission of stamped by the Grants.gov system after necessary assurances and certifications. Applications. 4:30:00 p.m., Washington, DC time, on Please note that two of these forms—the Applications for grants under the the application deadline date. SF 424 and the Department of Education Rehabilitation Continuing Education • The amount of time it can take to Supplemental Information for SF 424— Program—Regional Technical upload an application will vary have replaced the ED 424 (Application Assistance and Continuing Education depending on a variety of factors, for Federal Education Assistance). (TACE) Centers, CFDA Number including the size of the application and • You must attach any narrative 84.264A, must be submitted the speed of your Internet connection. sections of your application as files in electronically using the Therefore, we strongly recommend that a .DOC (document), .RTF (rich text), or Governmentwide Grants.gov Apply site you do not wait until the application .PDF (Portable Document) format. If you

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upload a file type other than the three Note: The extensions to which we refer in (1) A legibly dated U.S. Postal Service file types specified in this paragraph or this section apply only to the unavailability postmark. submit a password-protected file, we of, or technical problems with, the Grants.gov (2) A legible mail receipt with the will not review that material. system. We will not grant you an extension date of mailing stamped by the U.S. if you failed to register fully to submit your • Your electronic application must Postal Service. application to Grants.gov before the (3) A dated shipping label, invoice, or comply with any page-limit application deadline date and time or if the requirements described in this notice. technical problem you experienced is receipt from a commercial carrier. • After you electronically submit unrelated to the Grants.gov system. (4) Any other proof of mailing acceptable to the Secretary of the U.S. your application, you will receive from Exception to Electronic Submission Grants.gov an automatic notification of Department of Education. Requirement: You qualify for an If you mail your application through receipt that contains a Grants.gov exception to the electronic submission tracking number. (This notification the U.S. Postal Service, we do not requirement, and may submit your accept either of the following as proof indicates receipt by Grants.gov only, not application in paper format, if you are receipt by the Department.) The of mailing: unable to submit an application through (1) A private metered postmark. Department then will retrieve your the Grants.gov system because— (2) A mail receipt that is not dated by application from Grants.gov and send a • You do not have access to the the U.S. Postal Service. second notification to you by e-mail. Internet; or If your application is postmarked after This second notification indicates that • You do not have the capacity to the application deadline date, we will the Department has received your upload large documents to the not consider your application. application and has assigned your Grants.gov system; and Note: The U.S. Postal Service does not application a PR/Award number (an ED- • No later than two weeks before the specified identifying number unique to uniformly provide a dated postmark. Before application deadline date (14 calendar relying on this method, you should check your application). days or, if the fourteenth calendar day with your local post office. • We may request that you provide us before the application deadline date c. Submission of Paper Applications original signatures on forms at a later falls on a Federal holiday, the next date. by Hand Delivery. business day following the Federal If you qualify for an exception to the Application Deadline Date Extension holiday), you mail or fax a written electronic submission requirement, you in Case of Technical Issues with the statement to the Department, explaining (or a courier service) may deliver your Grants.gov System: If you are which of the two grounds for an paper application to the Department by experiencing problems submitting your exception prevent you from using the hand. You must deliver the original and application through Grants.gov, please Internet to submit your application. two copies of your application by hand, contact the Grants.gov Support Desk, If you mail your written statement to on or before the application deadline toll free, at 1–800–518–4726. You must the Department, it must be postmarked date, to the Department at the following obtain a Grants.gov Support Desk Case no later than two weeks before the address: U.S. Department of Education, Number and must keep a record of it. application deadline date. If you fax Application Control Center, Attention: If you are prevented from your written statement to the (CFDA Number 84.264A) 550 12th electronically submitting your Department, we must receive the faxed Street, SW., Room 7041, Potomac Center application on the application deadline statement no later than two weeks Plaza, Washington, DC 20202–4260. date because of technical problems with before the application deadline date. The Application Control Center the Grants.gov system, we will grant you Address and mail or fax your accepts hand deliveries daily between an extension until 4:30:00 p.m., statement to: Christine Marschall, U.S. 8:00 a.m. and 4:30:00 p.m., Washington, Washington, DC time, the following Department of Education, 400 Maryland DC time, except Saturdays, Sundays, business day to enable you to transmit Avenue, SW., room 5053, Potomac and Federal holidays. your application electronically or by Center Plaza (PCP), Washington, DC Note for Mail or Hand Delivery of hand delivery. You also may mail your 20202–2800. FAX: (202) 245–6824. Paper Applications: If you mail or hand application by following the mailing Your paper application must be deliver your application to the instructions described elsewhere in this submitted in accordance with the mail Department— notice. or hand delivery instructions described (1) You must indicate on the envelope If you submit an application after in this notice. and—if not provided by the 4:30:00 p.m., Washington, DC time, on b. Submission of Paper Applications Department—in Item 11 of the SF 424 the application deadline date, please by Mail. the CFDA number, including suffix contact the person listed under FOR If you qualify for an exception to the letter, if any, of the competition under FURTHER INFORMATION CONTACT in electronic submission requirement, you which you are submitting your section VII in this notice and provide an may mail (through the U.S. Postal application; and explanation of the technical problem Service or a commercial carrier) your (2) The Application Control Center you experienced with Grants.gov, along application to the Department. You will mail to you a notification of receipt with the Grants.gov Support Desk Case must mail the original and two copies of your grant application. If you do not Number. We will accept your of your application, on or before the receive this notification within 15 application if we can confirm that a application deadline date, to the business days from the application technical problem occurred with the Department at the applicable following deadline date, you should call the U.S. Grants.gov system and that that problem address: U.S. Department of Education, Department of Education Application affected your ability to submit your Application Control Center, Stop 4260, Control Center at (202) 245–6288. application by 4:30:00 p.m., Attention: (CFDA Number 84.264A) LBJ Washington, DC time, on the Basement Level 1, 400 Maryland V. Application Review Information application deadline date. The Avenue, SW., Washington, DC 20202– Selection Criteria: The selection Department will contact you after a 4260. criteria for this competition are from 34 determination is made on whether your You must show proof of mailing CFR 75.210 and 34 CFR 389.30(a), and application will be accepted. consisting of one of the following: are listed in the application package.

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VI. Award Administration Information technical assistance and continuing DEPARTMENT OF ENERGY 1. Award Notices: If your application education services provided by the Federal Energy Regulatory is successful, we notify your U.S. grantee that are deemed to be useful in Commission Representative and U.S. Senators and improving State VR agency policies or practices. send you a Grant Award Notice (GAN). Combined Notice of Filings # 1 We may notify you informally, also. VII. Agency Contact If your application is not evaluated or October 10, 2008. not selected for funding, we notify you. FOR FURTHER INFORMATION CONTACT: Take notice that the Commission 2. Administrative and National Policy Christine Marschall, U.S. Department of received the following electric corporate Requirements: We identify Education, 400 Maryland Avenue, SW., filings: administrative and national policy Docket Numbers: EC09–4–000. room 5053, PCP, Washington, DC requirements in the application package Applicants: Lehman Brothers 20202–2800. Telephone: (202) 245–7429 and reference these and other Commodity Services Inc. requirements in the Applicable or by e-mail: Description: Joint Application for Regulations section in this notice. [email protected]. Authorization under Section 203 FPA We reference the regulations outlining If you use a TDD, call the Federal and Request for Expedited Action and the terms and conditions of an award in Relay Service (FRS), toll free, at 1–800– Confidential Treatment. the Applicable Regulations section in 877–8339. Filed Date: 10/09/2008. this notice and include these and other Accession Number: 20081009–5074. specific conditions in the GAN. The VIII. Other Information Comment Date: 5 p.m. Eastern Time on Thursday, October 23, 2008. GAN also incorporates your approved Alternative Format: Individuals with application as part of your binding Take notice that the Commission disabilities can obtain this document received the following electric rate commitments under the grant. and a copy of the application package in 3. Reporting: At the end of your filings: an alternative format (e.g., Braille, large project period, you must submit a final Docket Numbers: ER03–1316–004. print, audiotape, or computer diskette) performance report, including financial Applicants: Palama, LLC. Description: Palama, LLC submits an information, as directed by the by contacting the Grants and Contracts application for determination of Secretary. If you receive a multi-year Services Team, U.S. Department of Category 1 Status, and motion to award, you must submit an annual Education, 400 Maryland Avenue, SW., room 5075, PCP, Washington, DC accepting filing out-of-time. performance report that provides the Filed Date: 10/08/2008. most current performance and financial 20202–2550. Telephone: (202) 245– 7363. If you use a TDD, call the FRS, toll Accession Number: 20081010–0045. expenditure information as directed by Comment Date: 5 p.m. Eastern Time free, at 1–800–877–8339. the Secretary under 34 CFR 75.118. The on Wednesday, October 29, 2008. Secretary may also require more Electronic Access to This Document: Docket Numbers: ER07–1194–001. frequent performance reports under 34 You can view this document, as well as Applicants: Castlebridge Energy CFR 75.720(c). For specific all other documents of this Department Group LLC. requirements on reporting, please go to published in the Federal Register, in Description: Castlebridge Energy http://www.ed.gov/fund/grant/apply/ text or Adobe Portable Document Group, LLC submits an amendment to appforms/appforms.html. Format (PDF) on the Internet at the the 8/13/08 filing of Second Substitute 4. Performance Measures: The following site: www.ed.gov/news/ First Revised Sheet 1 to FERC Electric Government Performance and Results fedregister. Tariff, Original Volume 1, to be effective Act of 1993 (GPRA) directs Federal To use PDF you must have Adobe 8/14/08. departments and agencies to improve Filed Date: 10/08/2008. Acrobat Reader, which is available free the effectiveness of their programs by Accession Number: 20081010–0060. engaging in strategic planning, setting at this site. If you have questions about Comment Date: 5 p.m. Eastern Time outcome-related goals for programs, and using PDF, call the U.S. Government on Wednesday, October 29, 2008. measuring program results against those Printing Office (GPO), toll free, at 1– Docket Numbers: ER08–799–003. goals. Performance measures established 888–293–6498; or in the Washington, Applicants: Consolidated Edison Co. for the RCEP are the percentage of DC, area at (202) 512–1530. of New York, Inc. training participants who report an Note: The official version of this document Description: Consolidated Edison Co increase in their knowledge, skills, and is the document published in the Federal submits revised tariff sheets to its 9/19/ abilities. RSA will use these data to Register. Free Internet access to the official 08 errata filing. assess the performance of the projects edition of the Federal Register and the Code Filed Date: 10/09/2008. funded under this competition. RSA of Federal Regulations is available on GPO Accession Number: 20081010–0156. also will convene an independent Access at: www.gpoaccess.gov/nara/ Comment Date: 5 p.m. Eastern Time review panel to evaluate the work of the index.html. on Thursday, October 30, 2008. grantees. The independent review panel Docket Numbers: ER08–1202–002. will use the following performance Dated: October 15, 2008. Applicants: Huntrise Energy Fund measures: (a) The percentage of William Knudsen, LLC. technical assistance and continuing Deputy Assistant Secretary for Special Description: Huntrise Energy Fund education services provided by the Education and Rehabilitative Services. LLC submits an amendment to its grantee that are deemed to be of high [FR Doc. E8–24925 Filed 10–17–08; 8:45 am] Petition for Acceptance of Initial Tariff, quality; (b) the percentage of technical Waivers and Blanket Authority filed on BILLING CODE 4000–01–P assistance and continuing education 6/19/08. services provided by the grantee that are Filed Date: 10/08/2008. deemed to be of high relevance to State Accession Number: 20081009–0098. vocational rehabilitation (VR) policies Comment Date: 5 p.m. Eastern Time or practices; and (c) the percentage of on Wednesday, October 29, 2008.

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Docket Numbers: ER08–1304–001. Filed Date: 10/08/2008. Applicants: Westar Energy, Inc. Applicants: Northeast Utilities Accession Number: 20081009–0105. Description: Westar Energy, Inc Service Company. Comment Date: 5 p.m. Eastern Time submits a notice of cancellation of a Description: Public Service Company on Wednesday, October 29, 2008. Supplemental Generation Agreement of New Hampshire submits an Amended Docket Numbers: ER09–40–000. with the City of Herington, Kansas. and Restated Design, Engineering, and Applicants: Westar Energy, Inc. Filed Date: 10/09/2008. Procurement for Noble Granite Reliable Description: Westar Energy, Inc Accession Number: 20081010–0153. Wind Park etc Substitute Original submits a notice of cancellation of a Comment Date: 5 p.m. Eastern Time Service Agreement IA-NU–11 etc. Supplemental Generation Agreement on Thursday, October 30, 2008. Filed Date: 10/09/2008. with the City of Sabetha, Kansas. Docket Numbers: ER09–52–000. Accession Number: 20081010–0142. Filed Date: 10/08/2008. Applicants: Westar Energy, Inc. Comment Date: 5 p.m. Eastern Time Accession Number: 20081009–0104. Description: Westar Energy, Inc on Thursday, October 30, 2008. Comment Date: 5 p.m. Eastern Time submits a notice of cancellation of a Docket Numbers: ER09–4–001. on Wednesday, October 29, 2008. Supplemental Generation Agreement Applicants: Krayn Wind LLC. Docket Numbers: ER09–41–000. with the City of Osage City, Kansas. Description: Krayn Wind LLC’s Applicants: Westar Energy, Inc. Filed Date: 10/09/2008. supplemental information to its Petition Description: Westar Energy, Inc Accession Number: 20081010–0154. for Order Accepting Market Based Rate submits a notice of cancellation of a Comment Date: 5 p.m. Eastern Time Tariff and Granting Waivers and Blanket Supplemental Generation Agreement on Thursday, October 30, 2008. Approvals filed on 10/1/08 and with the City of Holton, Kansas. Docket Numbers: ER09–53–000. Substitute Original Sheet 1 et al. to Filed Date: 10/08/2008. Applicants: Westar Energy, Inc. FERC Electric Tariff, Original Volume 1. Accession Number: 20081009–0100. Description: Westar Energy, Inc Filed Date: 10/09/2008. Comment Date: 5 p.m. Eastern Time submits a notice of cancellation of a Accession Number: 20081010–0141. on Wednesday, October 29, 2008. Supplemental Generation Agreement Comment Date: 5 p.m. Eastern Time with the City of Wamego, Kansas. on Thursday, October 20, 2008. Docket Numbers: ER09–42–000. Applicants: Westar Energy, Inc. Filed Date: 10/09/2008. Docket Numbers: ER09–11–001; Description: Westar Energy, Inc Accession Number: 20081010–0155. OA08–13–000. submits a notice of cancellation of a Comment Date: 5 p.m. Eastern Time Applicants: New York Independent Supplemental Generation Agreement on Thursday, October 30, 2008. System Operator, Inc. with the City of Minneapolis, Kansas. Docket Numbers: ER09–55–000. Description: New York Independent Filed Date: 10/08/2008. Applicants: Entergy Services, Inc. System Operator, Inc submits an errata Accession Number: 20081009–0099. Description: Entergy Services, Inc tariff sheet to correct a formatting error Comment Date: 5 p.m. Eastern Time submits an amended interconnection that was inadvertently included in its on Wednesday, October 29, 2008. and operating agreement. 10/1/08 filing, designated as First Filed Date: 10/09/2008. Revised Sheet 112F etc. Docket Numbers: ER09–45–000. Applicants: American Electric Power Accession Number: 20081010–0157. Filed Date: 10/09/2008. Comment Date: 5 p.m. Eastern Time Accession Number: 20081010–0144. Service Corporation. Description: AEP Operating on Thursday, October 30, 2008. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER09–56–000. on Thursday, October 30, 2008. Companies submits a seventh Revision to the Interconnection and Local Applicants: Virginia Electric and Docket Numbers: ER09–14–001. Delivery Agreement with Wabash Valley Power Company. Applicants: NSTAR Electric Power Authority. Description: Virginia Electric and Company. Power Co submits the Revised Generator Description: Errata of NSTAR Electric Filed Date: 10/08/2008. Accession Number: 20081010–0047. Interconnection and Operating Company’s to 10/2/08 rate filing. Agreements. Filed Date: 10/06/2008. Comment Date: 5 p.m. Eastern Time on Wednesday, October 29, 2008. Filed Date: 10/09/2008. Accession Number: 20081006–5082. Accession Number: 20081010–0147. Docket Numbers: ER09–46–000. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Applicants: Quachita Power, LLC. on Monday, October 27, 2008. on Thursday, October 30, 2008. Description: Quachita Power, LLC Docket Numbers: ER09–38–000. Take notice that the Commission submits notice of cancellation of their Applicants: AES Energy Storage, LLC. received the following open access FERC Electric Tariff, Second Revised Description: AES Energy Storage, LLC transmission tariff filings: Volume 1. submits an application for acceptance of Docket Numbers: OA08–20–002. Filed Date: 10/08/2008. market-based rate tariff & granting of Applicants: Tampa Electric Company. Accession Number: 20081010–0048. waivers & blanket authorizations; Description: Tampa Electric Company Comment Date: 5 p.m. Eastern Time request for shortened comment period, submits Substitute Second Revised on Wednesday, October 29, 2008. expedited consideration and prior Sheet 116 to FERC Electric Tariff, Third notice waiver. Docket Numbers: ER09–50–000. Revised Volume 4, to be effective 10/7/ Filed Date: 10/08/2008. Applicants: Westar Energy, Inc. 08 under OA08–20. Accession Number: 20081010–0046. Description: Westar Energy, Inc Filed Date: 10/09/2008. Comment Date: 5 p.m. Eastern Time submits a notice of cancellation of a Accession Number: 20081010–0143. on Wednesday, October 29, 2008. Supplemental Generation Agreement Comment Date: 5 p.m. Eastern Time Docket Numbers: ER09–39–000. with the City of Burlingame, Kansas. on Thursday, October 30, 2008. Applicants: Southwest Power Pool, Filed Date: 10/09/2008. Take notice that the Commission Inc. Accession Number: 20081010–0152. received the following public utility Description: Southwest Power Pool, Comment Date: 5 p.m. Eastern Time holding company filings: Inc submits a compliance filing revising on Thursday, October 30, 2008. Docket Numbers: PH09–3–000. its Open Access Transmission Tariff. Docket Numbers: ER09–51–000. Applicants: GDF SUEZ S.A.

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Description: FERC–65A Exemption DEPARTMENT OF ENERGY be taken, but will not serve to make Notification under PH09–3. protestants parties to the proceeding. Filed Date: 10/10/2008. Federal Energy Regulatory Anyone filing a motion to intervene or Accession Number: 20081010–5058. Commission protest must serve a copy of that Comment Date: 5 p.m. Eastern Time document on the Applicant. In reference on Friday, October 31, 2008. Combined Notice of Filings to filings initiating a new proceeding, Any person desiring to intervene or to October 15, 2008. interventions or protests submitted on protest in any of the above proceedings or before the comment deadline need must file in accordance with Rules 211 Take notice that the Commission has received the following Natural Gas not be served on persons other than the and 214 of the Commission’s Rules of Applicant. Practice and Procedure (18 CFR 385.211 Pipeline Rate and Refund Report filings: The Commission encourages and 385.214) on or before 5 p.m. Eastern Docket Numbers: RP08–272–003. electronic submission of protests and time on the specified comment date. It Applicants: Transcontinental Gas interventions in lieu of paper, using the is not necessary to separately intervene Pipeline Corporation. FERC Online links at http:// again in a subdocket related to a Description: Transcontinental Gas www.ferc.gov. To facilitate electronic compliance filing if you have previously Pipe Line Corporation submits service, persons with Internet access intervened in the same docket. Protests Substitute Fifth Revised Sheet 154 et al who will eFile a document and/or be will be considered by the Commission to FERC Gas Tariff, Third Revised listed as a contact for an intervenor in determining the appropriate action to Volume 1. must create and validate an be taken, but will not serve to make Filed Date: 10/08/2008. eRegistration account using the protestants parties to the proceeding. Accession Number: 20081009–0102. eRegistration link. Select the eFiling Anyone filing a motion to intervene or Comment Date: 5 p.m. Eastern Time link to log on and submit the protest must serve a copy of that on Monday, October 20, 2008. intervention or protests. document on the Applicant. In reference Docket Numbers: RP08–591–001. to filings initiating a new proceeding, Applicants: Equitrans, L.P. Persons unable to file electronically interventions or protests submitted on Description: Equitrans, LP submits should submit an original and 14 copies or before the comment deadline need the corrected tariff Sheet 316 for of the intervention or protest to the not be served on persons other than the inclusion in its FERC Gas Tariff, Federal Energy Regulatory Commission, Applicant. Original Volume 1. 888 First St., NE., Washington, DC The Commission encourages Filed Date: 10/08/2008. 20426. electronic submission of protests and Accession Number: 20081009–0103. The filings in the above proceedings interventions in lieu of paper, using the Comment Date: 5 p.m. Eastern Time are accessible in the Commission’s FERC Online links at http:// on Monday, October 20, 2008. eLibrary system by clicking on the www.ferc.gov. To facilitate electronic Docket Numbers: RP09–17–000. appropriate link in the above list. They service, persons with Internet access Applicants: Mojave Pipeline are also available for review in the who will eFile a document and/or be Company. Commission’s Public Reference Room in listed as a contact for an intervenor Description: Mojave Gas Company Washington, DC. There is an must create and validate an submits Third Revised Sheet 212 to eSubscription link on the Web site that eRegistration account using the their FERC Gas Tariff, Second Revised enables subscribers to receive e-mail eRegistration link. Select the eFiling Volume 1, to be effective 11/10/08. notification when a document is added link to log on and submit the Filed Date: 10/10/2008. to a subscribed docket(s). For assistance intervention or protests. Accession Number: 20081014–0094. with any FERC Online service, please e- Persons unable to file electronically Comment Date: 5 p.m. Eastern Time mail [email protected] or should submit an original and 14 copies on Wednesday, October 22, 2008. call (866) 208–3676 (toll free). For TTY, of the intervention or protest to the call (202) 502–8659. Docket Numbers: RP09–18–000. Federal Energy Regulatory Commission, Applicants: Northern Natural Gas Nathaniel J. Davis, Sr. 888 First St., NE., Washington, DC Company. 20426. Deputy Secretary. The filings in the above proceedings Description: Northern Natural Gas [FR Doc. E8–24886 Filed 10–17–08; 8:45 am] are accessible in the Commission’s Company submits 12 Revised Sheet BILLING CODE 6717–01–P eLibrary system by clicking on the 66B.01 to FERC Gas Tariff, Fifth Revised appropriate link in the above list. They Volume 1, to be effective 10/4/08. are also available for review in the Filed Date: 10/09/2008. DEPARTMENT OF ENERGY Commission’s Public Reference Room in Accession Number: 20081014–0275. Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory Washington, DC. There is an Commission eSubscription link on the Web site that on Tuesday, October 21, 2008. enables subscribers to receive e-mail Any person desiring to intervene or to Notice of Meeting, Notice of Vote, notification when a document is added protest in any of the above proceedings Explanation of Action Closing Meeting to a subscribed dockets(s). For must file in accordance with Rules 211 and List of Persons To Attend assistance with any FERC Online and 214 of the Commission’s Rules of service, please e-mail Practice and Procedure (18 CFR 385.211 October 14, 2008. [email protected] or call and 385.214) on or before 5 p.m. Eastern The following notice of meeting is (866) 208–3676 (toll free). For TTY, call time on the specified comment date. It published pursuant to Section 3(a) of (202) 502–8659. is not necessary to separately intervene the Government in the Sunshine Act again in a subdocket related to a (Pub. L. 94–409), 5 U.S.C. 552b: Nathaniel J. Davis, Sr., compliance filing if you have previously Deputy Secretary. intervened in the same docket. Protests AGENCY HOLDING MEETING: Federal [FR Doc. E8–24823 Filed 10–17–08; 8:45 am] will be considered by the Commission Energy Regulatory Commission. BILLING CODE 6717–01–P in determining the appropriate action to DATE AND TIME: October 21, 2008, 10 a.m.

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PLACE: Room 2C, Commission Meeting Southwestern held several meetings isolated hydraulically, electrically, and Room, 888 First Street, NE., during FY 2008 with customers to financially from the Integrated System Washington, DC 20426. discuss the proposed rate schedule are repaid by separate rate schedules. revisions and provide opportunity for STATUS: Closed. Current and Proposed Real Power input in the development of the final MATTERS TO BE CONSIDERED: Non-Public Losses Provisions rate schedules. As a result of these Investigations and Inquiries, The current P–06 and NFTS–06 rate Enforcement Related Matters. informal meetings, it was determined that the revised rate schedule provisions schedules determine the annual rate for CONTACT PERSON FOR MORE INFORMATION: can provide cost-savings and real power losses based upon the Kimberly D. Bose, Secretary, Telephone operational benefits to Southwestern’s average of Southwestern’s actual costs (202) 502–8400. transmission customers and are for the purchase of energy to replace Chairman Kelliher and consistent with (FERC) Order No. 888. real power losses during the previous Commissioners Kelly, Spitzer, Moeller, DATES: The consultation and comment Fiscal Year (October through and Wellinghoff voted to hold a closed period will begin on the date of September), as reflected in meeting on October 21, 2008. The publication of this Federal Register Southwestern’s financial records. certification of the General Counsel notice and will end November 19, 2008. Customers have the option to either explaining the action closing the purchase losses from Southwestern or FOR FURTHER INFORMATION CONTACT: Mr. meeting is available for public elect, on an annual basis, to self-provide inspection in the Commission’s Public James K. McDonald, Assistant Administrator, Office of Corporate their respective loss energy subject to Reference Room at 888 First Street, NE., certain conditions. Customers who Washington, DC 20426. Operations, Southwestern Power Administration, U.S. Department of purchase loss energy from Southwestern The Chairman and the are assessed a monthly charge equal to Commissioners, their assistants, the Energy, One West Third Street, Tulsa, Oklahoma 74103, (918) 595–6690, the product of Southwestern’s then- Commission’s Secretary, the General [email protected]. effective rate for Real Power Losses and Counsel and members of her staff, and a quantity of energy equal to four (4) a stenographer are expected to attend SUPPLEMENTARY INFORMATION: The U.S. percent of the total non-Federal energy the meeting. Other staff members from Department of Energy (DOE) was transmitted by Southwestern on behalf the Commission’s program offices who created by an Act of the U.S. Congress, of each such customer during that will advise the Commissioners in the Department of Energy Organization Act, month. matters discussed will also be present. Pub. L. 95–91, dated August 4, 1977. Beginning January 1, 2009, Southwestern’s power marketing Southwestern is proposing to Kimberly D. Bose, activities were transferred from the implement revised real power loss Secretary. Department of Interior to the DOE, provisions, as specified in [FR Doc. E8–24816 Filed 10–17–08; 8:45 am] effective October 1, 1977. Guidelines for Southwestern’s proposed P–06A and BILLING CODE 6717–01–P preparation of power repayment studies NFTS–06A rate schedules, which will are included in DOE Order No. RA require that all real power losses 6120.2 entitled Power Marketing associated with deliveries of non- DEPARTMENT OF ENERGY Administration Financial Reporting. Federal energy transmitted by Procedures for Public Participation in Southwestern must be scheduled and Southwestern Power Administration Power and Transmission Rate delivered (self-supplied) to Integrated System Rate Schedule Adjustments of the Power Marketing Southwestern by customers during the Changes Administrations are found at Title 10, second month after such real power part 903, Subpart A of the Code of losses were incurred by Southwestern. AGENCY: Southwestern Power Federal Regulations (10 CFR 903). Southwestern will determine the Administration, DOE. Procedures for the confirmation and amount of real power losses associated ACTION: Notice of Proposed Changes to approval of rates for the Federal Power with non-Federal energy transmitted on Southwestern Power Administration Marketing Administrations are found at behalf of each customer in the same Rate Schedules and Opportunity for Title 18, part 300, Subpart L of the Code manner specified in the previous P–06 Public Review and Comment. of Federal Regulations (18 CFR 300). and NFTS–06 rate schedules and Southwestern markets power from 24 provide a written schedule setting forth SUMMARY: The Administrator, multi-purpose reservoir projects, with the delivery rate and total quantity of Southwestern Power Administration hydroelectric power facilities real power loss energy to be delivered (Southwestern), has determined that constructed and operated by the U.S. back to Southwestern. Should a revisions to the Real Power Losses Army Corps of Engineers. These projects customer fail to return the total quantity provisions within existing rate are located in the states of Arkansas, of real power loss energy to schedules P–06 and NFTS–06 are Missouri, Oklahoma, and Texas. Southwestern, according to the schedule required. The Federal Energy Regulatory Southwestern’s marketing area includes provided during the month in which Commission (FERC) confirmed and these states plus Kansas and Louisiana. such loss energy is due, the customer approved such rates on February 27, The costs associated with the will be invoiced and obligated to 2007 in Docket No. EF07–4011–000 (118 hydropower facilities of 22 of the 24 purchase, at the rate stipulated in the P– FERC ¶62,162) for the period from projects are repaid via revenues 06A and NFTS–06A rate schedules, the October 1, 2006 through September 30, received under the Integrated System quantity of loss energy the customer 2010. Since the proposed rate schedule rates, as are Southwestern’s failed to return to Southwestern. revisions are limited only to Real Power transmission facilities that consist of Losses, the net result of the 2006 1,380 miles of high-voltage transmission P–06 and NFTS–06 Rate Schedule Integrated System Power Repayment lines, 24 substations, and 46 microwave Revisions Studies, which was the basis for the and VHF radio sites. Costs associated In developing the revised real power existing rate schedules, will not be with the Robert D. Willis and Sam losses rate schedule provisions, the altered. Rayburn Dams, two projects that are titles of the P–06 and NFTS–06 rate

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schedules were changed to P–06A and accordance with Federal Energy charge for Interconnection Facilities NFTS–06A respectively to reflect the Regulatory Commission order Service. fact that revisions have been made. In issuedllllll, Docket No. A ‘‘Service Request’’ is made under a addition to replacing the section llllll. Transmission Service Agreement entitled ‘‘Rates for Real Power Losses’’ Available: In the region where through the Southwest Power Pool, Inc. within each rate schedule, minor Southwestern Power Administration (SPP) Open Access Same-Time corrections and modifications were (Southwestern) owns and operates high- Information System (OASIS) for incorporated to clarify and update any voltage transmission lines and related reservation of transmission capacity sections of the rate schedules containing facilities, and/or has contractual rights over a particular point-to-point delivery references to real power losses. to such transmission facilities owned by path for a particular period. When a Redlined versions of rate schedules P– others (System of Southwestern). Service Request is approved by SPP, it 06 and NFTS–06, which show revisions Applicable: To Customers which have becomes a ‘‘Transmission Service proposed by rate schedules P–06A and executed Service Agreements with Transaction.’’ The Customer must NFTS–06A, will be made available upon Southwestern for the transmission of submit hourly schedules for actual request. To request a copy, please non-Federal power and energy over the service in addition to the Service contact Scott Carpenter System of Southwestern or for its use for Request. ([email protected]) at 918–595– interconnections. Southwestern will ‘‘Firm Point-to-Point Transmission 6694 or Stephanie Bradley provide services over those portions of Service’’ is transmission service ([email protected]) at 918– the System of Southwestern in which reserved on a firm basis between 595–6676. Southwestern will the Administrator, Southwestern, in his specific points of receipt and delivery implement the revised P–06A and or her sole judgment, has determined pursuant to either a Firm Transmission NFTS–06A rate schedule language and that uncommitted transmission and Agreement or to a Transmission Service provisions upon the Deputy Secretary’s transformation capacities in the System Transaction. ‘‘Non-Firm Point-to-Point interim approval. of Southwestern are and will be Transmission Service’’ is transmission The Administrator has determined available in excess of the capacities service reserved on a non-firm basis for that written comments will provide required to market Federal power and specific points of receipt and delivery adequate opportunity for public energy pursuant to Section 5 of the pursuant to a Transmission Service participation in the rate schedule Flood Control Act of 1944 (58 Stat. Transaction. ‘‘Network Integration revision process. Therefore, an 887,890; 16 U.S.C. 825s). Transmission Service’’ is transmission opportunity is presented for interested Character and Conditions of Service: service provided under Part III of parties to submit written comments on Service will be provided as 3-phase, Southwestern’s Open Access the proposed rate schedule changes. alternating current, at approximately 60 Transmission Service Tariff which Written comments are due on or before Hertz, and at the voltage level of the provides the Customer with firm November 19, 2008. Written comments point(s) specified by Service Agreement transmission service for the delivery of should be submitted to Mr. James K. or Transmission Service Transaction. capacity and energy from the McDonald, Assistant Administrator, Definitions of Terms: Customer’s resources to the Customer’s Office of Corporate Operations, A ‘‘Customer’’ is the entity which is load. Southwestern Power Administration, utilizing and/or purchasing services ‘‘Secondary Transmission Service’’ is U.S. Department of Energy, One West from Southwestern pursuant to this rate associated with Firm Point-to-Point Third Street, Tulsa, Oklahoma 74103, schedule. Transmission Service and Network (918) 595–6690, A ‘‘Service Agreement’’ is a contract Integration Transmission Service. For [email protected]. executed between a Customer and Firm Point-to-Point Transmission Following review and consideration Southwestern for the transmission of Service, it consists of transmission of written comments, the Administrator non-Federal power and energy over the service provided on an as-available, will finalize and submit the proposed System of Southwestern or for non-firm basis, scheduled within the rate schedules to the Deputy Secretary interconnections. Service Agreements limits of a particular capacity of Energy for confirmation and approval include: reservation for transmission service, and on an interim basis, and subsequently to ‘‘Firm Transmission Service scheduled from points of receipt, or to the FERC for confirmation and approval Agreements’’ that provide for reserved points of delivery, other than those on a final basis. The FERC will allow transmission capacity on a firm basis, designated in a Long-Term Firm the public an opportunity to provide for a particular point-to-point delivery Transmission Agreement or a written comments on the proposed rate path. Transmission Service Transaction for schedule change before making a final ‘‘Non-Firm Transmission Service Firm Point-to-Point Transmission decision. Agreements’’ that provide for the Service. For Network Integration Dated: October 9, 2008. Customer to request transmission Transmission Service, Secondary Jon C. Worthington, service on a non-firm basis. Transmission Service consists of Administrator. ‘‘Network Transmission Service transmission service provided on an as- Agreements’’ that provide for the available, non-firm basis, from resources United States Department of Energy Customer to request firm transmission other than the Network Resources Southwestern Power Administration service for the delivery of capacity and designated in a Network Transmission energy from the Customer’s network Service Agreement, to meet the 1 Rate Schedule NFTS–06A ; Wholesale resources to the Customer’s network Customer’s Network Load. The charges Rates for Non-Federal Transmission/ load, for a period of one year or more. for Secondary Transmission Service, Interconnection Facilities Service ‘‘Interconnection Agreements’’ that other than Ancillary Services, are Effective: During the period January 1, provide for the use of the System of included in the applicable capacity 2009, through September 30, 2010, in Southwestern and recognize the charges for Firm Point-to-Point exchange of mutual benefits for such Transmission Service and Network 1 Supersedes Rate Schedule NFTS–06. use or provide for application of a Integration Transmission Service.

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The ‘‘Demand Period’’ used to from resources to loads while ‘‘Spinning Operating Reserve Service’’ determine a maximum integrated rate of maintaining reliable operation of the maintains generating units on-line, but delivery for the purposes of power System of Southwestern in accordance loaded at less than maximum output, accounting is the 60-minute period with good utility practice. Ancillary which may be used to service load which begins with the change of hour. Services include: immediately when disturbance The term ‘‘Peak Demand’’ means the ‘‘Scheduling, System Control, and conditions are experienced due to a highest rate of delivery, in kilowatts, for Dispatch Service’’ is provided by sudden loss of generation or load. any Demand Period during a particular Southwestern as Control Area operator ‘‘Supplemental Operating Reserve month, at any particular point of and is in regard to interchange and load- Service’’ provides an additional amount delivery or interconnection. match scheduling and related system of operating reserve sufficient to reduce For the purposes of this rate schedule, control and dispatch functions. Area Control Error to zero within 10 the term ‘‘Point of Delivery’’ is used to ‘‘Reactive Supply and Voltage Control minutes following loss of generating mean either a single physical point to from Generation Sources Service’’ is capacity which would result from the which electric power and energy are provided at transmission facilities in the most severe single contingency. delivered from the System of System of Southwestern to produce or ‘‘Energy Imbalance Service’’ corrects Southwestern, or a specified set of absorb reactive power and to maintain for differences over a period of time delivery points which together form a transmission voltages within specific between schedules and actual hourly single, electrically integrated load. Peak limits. deliveries of energy to a load. Demand for such set of points is ‘‘Regulation and Frequency Response ‘‘Interconnection Facilities Service’’ computed as the coincidental highest Service’’ is the continuous balancing of provides for the use of the System of rate of delivery among the specified generation and interchange resources Southwestern to deliver energy and/or points rather than as the sum of peak accomplished by raising or lowering the provide system support at an demands for each individual physical output of on-line generation as interconnection. point. necessary to follow the moment-by- Rates for Firm Point-to-Point ‘‘Ancillary Services’’ are those moment changes in load and to Transmission Service: services necessary to support the maintain frequency within a Control Capacity Charges for Firm transmission of capacity and energy Area. Transmission Service:

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Monthly .... $0.90 per kilowatt of transmission capacity reserved in incre- $0.95 per kilowatt of transmission capacity reserved in incre- ments of one month of service or invoiced in accordance with ments of one month of service or invoiced in accordance with a longer term agreement. a longer term agreement. Weekly ..... $0.225 per kilowatt of transmission capacity reserved in incre- $0.238 per kilowatt of transmission capacity reserved in incre- ments of one week of service. ments of one week of service. Daily ...... $0.0409 per kilowatt of transmission capacity reserved in incre- $0.0432 per kilowatt of transmission capacity reserved in incre- ments of one day of service. ments of one day of service.

Service Associated with Capacity such Customers shall be limited during Transmission Service Transaction, and Charges for Firm Point-to-Point any month to the most recent Peak do not include charges for Ancillary Transmission Service: The capacity Demand on which a particular Customer Services. charge for firm transmission service is billed or to the capacity reserved by Rates for Network Integration includes Secondary Transmission contract, whichever is greater. Transmission Service: Service, but does not include charges for Rates for Non-Firm Point-to-Point Ancillary Services associated with Transmission Service: Annual Revenue Requirement for actual schedules. Capacity Charges for Non-Firm Network Integration Service: Application of Capacity Charges for Transmission Service: Firm Point-to-Point Transmission Monthly: 80 percent of the firm 10/1/2006–9/30/2008 10/1/2008–9/30/2010 Service: Capacity charges for firm monthly charge of transmission capacity transmission service are applied to reserved in increments of one month of $9,155,900 ...... $9,431,500 quantities reserved by contract under a service. Firm Transmission Agreement or in Weekly: 80 percent of the firm Monthly Revenue Requirement for accordance with a Transmission Service monthly charge divided by 4 of Network Integration Service: Transaction. transmission capacity reserved in Customers, unless otherwise specified increments of one week of service. 10/1/2006–9/30/2008 10/1/2008–9/30/2010 by contract, will be charged on the Daily: 80 percent of the firm monthly greatest of (1) The Peak Demand at any charge divided by 22 of transmission $762,992 ...... $785,958 particular point of delivery during a capacity reserved in increments of one particular month, rounded up to the day of service. Net Capacity Available for Network nearest whole megawatt, or (2) the Hourly: 80 percent of the firm Integration Service: highest Peak Demand recorded at such monthly charge divided by 352 of point of delivery during any of the transmission capacity reserved in 10/1/2006–9/30/2008 10/1/2008–9/30/2010 previous 11 months, rounded up to the increments of one hour of service. nearest whole megawatt, or (3) the Application of Charges for Non-Firm 845,000 kilowatts ...... 828,000 kilowatts. capacity reserved by contract; which Point-to-Point Transmission Service: amount shall be considered such Capacity charges for Non-Firm Capacity Charge for Network Customer’s reserved capacity. Transmission Service are applied to Integration Transmission Service: Secondary Transmission Service for quantities reserved under a

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10/1/2006–9/30/2008 10/1/2008–9/30/2010 Southwestern. The Customer’s Monthly Rate per Real Power Losses are computed each Months associated with charge kilowatthour $0.90 per kilowatt of $0.95 per kilowatt of month on a megawatthour basis as Network Load Network Load follows: March, April, May, October, No- ($762,992/845,000 ($785,958/828,000 vember, December ...... $0.15 ML = .04 × NFE kilowatts). kilowatts). January, February, June, July, with the factors defined as follows: August, September ...... $0.30 Application of Charge for Network ML = The total monthly loss energy, rounded to the nearest megawatthour, to be Integration Transmission Service: (6) Real Power Losses delivered to Network Integration Transmission scheduled by a Customer for receipt by Southwestern for Real Power Losses Southwestern by the Customer in excess Service is available only for deliveries of of the losses due during the month shall non-Federal power and energy, and is associated with non-Federal energy transmitted on behalf of such Customer; be purchased by Southwestern from the applied to the Customer utilizing such and Customer at a rate per megawatthour service exclusive of any deliveries of NFE = The amount of non-Federal energy equal to Southwestern’s rate per Federal power and energy. The capacity that was transmitted by Southwestern on megawatthour for Supplemental on which charges for any particular behalf of a Customer during a particular Peaking Energy, as set forth in Customer utilizing this service is month. determined on the greatest of (1) the Southwestern’s then-effective Rate The Customer must schedule or cause Schedule for hydro peaking power to Peak Demand at any particular point of to be scheduled to Southwestern, Real delivery during a particular month, adjust such hourly end-of-month loss Power Losses for which it is responsible energy balance to 0 megawatthours. rounded up to the nearest whole subject to the following conditions: megawatt, or (2) the highest Peak Monthly Capacity Charges for (1) The Customer shall schedule and Demand recorded at such point of Transformation Service: A charge of deliver Real Power Losses back to delivery during any of the previous 11 $0.30 per kilowatt will be assessed for Southwestern during the second month months, rounded up to the nearest capacity used to deliver energy at any after they were incurred by whole megawatt. point of delivery at which Southwestern Southwestern in the transmission of the For those Customers taking Network provides transformation for deliveries at Customer’s non-Federal power and Integration Transmission Service who voltages of 69 kilovolts or less from energy over the System of are also taking delivery of Federal higher voltage facilities. Power and Energy, the Peak Demand Southwestern. Application of Capacity Charges for shall be determined by subtracting the (2) On or before the twentieth day of Transformation Service: For any energy scheduled for delivery of Federal each month, Southwestern shall particular month, charges for Power and Energy for any hour from the determine the amount of non-Federal metered demand for such hour. loss energy it provided on behalf of the transformation service will be assessed Secondary transmission Service for Customer during the previous month on the greater of (1) that month’s actual such Customers shall be limited during and provide a written schedule to the Peak Demand, or (2) the highest Peak any month to the most recent Peak Customer setting forth hour-by-hour the Demand recorded during the previous Demand on which a particular Customer quantities of non-Federal energy to be 11 months. For the purpose of this rate is billed. Charges for Ancillary Services delivered to Southwestern as losses schedule, the Peak Demand will be shall also be assessed. during the next month. based on all deliveries, of both Federal (3) Real Power Losses not delivered to and non-Federal energy, from the Real Power Losses Southwestern by the Customer, System of Southwestern, at such point Customers are required to self-provide according to the schedule provided, during such month. all Real Power Losses for non-Federal during the month in which such losses Rates for Ancillary Services: energy transmitted by Southwestern on are due shall be billed by Southwestern behalf of such Customers under the to the Customer to adjust the end-of- Capacity Charges for Ancillary provisions detailed below. month loss energy balance to 0 Services Associated With Transmission Real Power Losses are computed as megawatthours and the Customer shall Services: four (4) percent of the total amount of be obliged to purchase such energy at (a) Scheduling, System Control, and non-Federal energy transmitted by the following rates: Dispatch Service:

10/1/2006–9/30/2008 10/1/2008–9/30/2010

Monthly: ... $0.06 per kilowatt of transmission capacity reserved in incre- $0.06 per kilowatt of transmission capacity reserved in incre- ments of one month of service or invoiced in accordance with ments of one month of service or invoiced in accordance with a Long-Term Firm Transmission Agreement or Network Trans- a Long-Term Firm Transmission Agreement or Network Trans- mission Service Agreement. mission Service Agreement. Weekly: .... $0.015 per kilowatt of transmission capacity reserved in incre- $0.015 per kilowatt of transmission capacity reserved in incre- ments of one week of service. ments of one week of service. Daily: ...... $0.0027 per kilowatt of transmission capacity reserved in incre- $0.0027 per kilowatt of transmission capacity reserved in incre- ments of one day of service. ments of one day of service. Hourly: ..... $0.00017 per kilowatt of energy delivered as non-firm trans- $0.00017 per kilowatt of energy delivered as non-firm trans- mission service. mission service.

(b) Reactive Supply and Voltage Control from Generation Sources Service:

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10/1/2006–9/30/2008 10/1/2008–9/30/2010

Monthly: ... $0.03 per kilowatt of transmission capacity reserved in incre- $0.04 per kilowatt of transmission capacity reserved in incre- ments of one month of service or invoiced in accordance with ments of one month of service or invoiced in accordance with a Long-Term Firm Transmission Agreement or Network Trans- a Long-Term Firm Transmission Agreement or Network Trans- mission Service Agreement. mission Service Agreement. Weekly: .... $0.008 per kilowatt of transmission capacity reserved in incre- $0.010 per kilowatt of transmission capacity reserved in incre- ments of one week of service. ments of one week of service. Daily: ...... $0.0014 per kilowatt of transmission capacity reserved in incre- $0.0018 per kilowatt of transmission capacity reserved in incre- ments of one day of service. ments of one day of service. Hourly: ..... $0.00009 per kilowatt of energy delivered as non-firm trans- $0.00011 per kilowatt of energy delivered as non-firm trans- mission service. mission service.

(c) Regulation and Frequency Response Service:

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Monthly: ... $0.08 per kilowatt of transmission capacity reserved in incre- $0.09 per kilowatt of transmission capacity reserved in incre- ments of one month of service or invoiced in accordance with ments of one month of service or invoiced in accordance with a Long-Term Firm Transmission Agreement or Network Trans- a Long-Term Firm Transmission Agreement or Network Trans- mission Service Agreement. mission Service Agreement. Weekly: .... $0.020 per kilowatt of transmission capacity reserved in incre- $0.023 per kilowatt of transmission capacity reserved in incre- ments of one week of service. ments of one week of service. Daily: ...... $0.0036 per kilowatt of transmission capacity reserved in incre- $0.0041 per kilowatt of transmission capacity reserved in incre- ments of one day of service. ments of one day of service. Hourly: ..... $0.00023 per kilowatt of energy delivered as non-firm trans- $0.00026 per kilowatt of energy delivered as non-firm trans- mission service. mission service.

(d) Spinning Operating Reserve Service:

10/1/2006–9/30/2008 10/1/2008–9/30/2010

Monthly: ... $0.0079 per kilowatt of transmission capacity reserved in incre- $0.0092 per kilowatt of transmission capacity reserved in incre- ments of one month of service or invoiced in accordance with ments of one month of service or invoiced in accordance with a Long-Term Firm Transmission Agreement or Network Trans- a Long-Term Firm Transmission Agreement or Network Trans- mission Service Agreement. mission Service Agreement. Weekly: .... $0.00198 per kilowatt of transmission capacity reserved in incre- $0.0023 per kilowatt of transmission capacity reserved in incre- ments of one week of service. ments of one week of service. Daily: ...... $0.00036 per kilowatt of transmission capacity reserved in incre- $0.00042 per kilowatt of transmission capacity reserved in incre- ments of one day of service. ments of one day of service. Hourly: ..... $0.00002 per kilowatt of energy delivered as non-firm trans- $0.00003 per kilowatt of energy delivered as non-firm trans- mission service. mission service.

(e) Supplemental Operating Reserve Service:

10/1/2006–9/30/2008 10/1/2008–9/30/2010

Monthly: ... $0.0079 per kilowatt of transmission capacity reserved in incre- $0.0092 per kilowatt of transmission capacity reserved in incre- ments of one month of service or invoiced in accordance with ments of one month of service or invoiced in accordance with a Long-Term Firm Transmission Agreement or Network Trans- a Long-Term Firm Transmission Agreement or Network Trans- mission Service Agreement. mission Service Agreement. Weekly: .... $0.00198 per kilowatt of transmission capacity reserved in incre- $0.0023 per kilowatt of transmission capacity reserved in incre- ments of one week of service. ments of one week of service. Daily: ...... $0.00036 per kilowatt of transmission capacity reserved in incre- $0.00042 per kilowatt of transmission capacity reserved in incre- ments of one day of service. ments of one day of service. Hourly: ..... $0.00002 per kilowatt of energy delivered as non-firm trans- $0.00003 per kilowatt of energy delivered as non-firm trans- mission service. mission service.

(f) Energy Imbalance Service: $0.0 per and shall be provided by Southwestern. subject to Southwestern’s approval, they kilowatt for all periods of reservation. Ancillary Services (c) and (f) listed are provided by others. Ancillary Availability of Ancillary Services: above are available only for deliveries of Services (d) and (e) are available only Ancillary Services (a) and (b) are power and energy serving load within for deliveries of power and energy available for all transmission services in Southwestern’s Control Area and shall generated by resources located within and from the System of Southwestern be provided by Southwestern, unless, Southwestern’s Control Area and shall

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be provided by Southwestern, unless, Energy delivered or received within Rate per subject to Southwestern’s approval, they the authorized bandwidth for this Months associated with charge kilowatt are provided by others. service is accounted for as an Application of Ancillary Services inadvertent flow and will be netted January, February, June, July, Charges: Charges for all Ancillary against flows in the future. The August, September ...... $0.30 Services are applied to the reserved or inadvertent flow in any given hour will network transmission service taken by only be offset with the flows in the Unauthorized Use of Energy the Customer in accordance with the corresponding hour of a day in the same Imbalance Service by Overscheduling of rates listed above when such services category. The two categories of days are Resources: In the event that a Customer are provided by Southwestern. weekdays and weekend days/North schedules greater resources than are The charges for Ancillary Services are American Electric Reliability Council needed to meet its load, such that considered to include Ancillary holidays. This process will result in a energy flows at rates beyond the Services for any Secondary separate inadvertent accumulation for authorized bandwidth for the use of Transmission Service, except in cases each hour of the two categories of days. Energy Imbalance Service, where Ancillary Services (c) through (f) The hourly accumulations in the current Southwestern retains such energy at no are applicable to a Secondary month will be added to the hourly cost to Southwestern and with no Transmission Service transaction, but inadvertent balances from the previous obligation to return such energy. are not applicable to the firm capacity month, resulting in a month-end Customers whose resources are reservation under which Secondary balance for each hour. scheduled by Southwestern are not Transmission Service is provided. When The Customer is required to adjust the subject to this provision. charges for Ancillary Services are scheduling of resources in such a way Application of Charge for applicable to Secondary Transmission as to reduce the accumulation towards Interconnection Facilities Service: Any Service, the charge for the Ancillary zero. It is recognized that the Customer that requests an Service shall be the hourly rate applied inadvertent hourly flows can be both interconnection from Southwestern to all energy transmitted utilizing the negative and positive, and that offsetting which, in Southwestern’s sole judgment Secondary Transmission Service. flows should deter a significant and at its sole option, does not provide Provision of Ancillary Services by accumulation of inadvertent. In the commensurate benefits or compensation Others: Customers for which Ancillary event any hourly month-end balance to Southwestern for the use of its Services (c) through (f) are made exceeds 12 MWHs, the excess will be facilities shall be assessed a capacity available as specified above must inform subject to the Application of Capacity charge for Interconnection Facilities Southwestern by written notice of the Overrun Penalty or the Unauthorized Service. For any month, charges for Ancillary Services which they do not Use of Energy Imbalance Service by Interconnection Facilities Service shall intend to take and purchase from Overscheduling of Resources provisions, be assessed on the greater of (1) that Southwestern, and their election to depending on the direction of the month’s actual Peak Demand, or (2) the provide all or part of such Ancillary accumulation. highest Peak Demand recorded during Services from their own resources or a Application of Capacity Overrun the previous eleven months, as metered third party. Penalty: Customers who receive at the interconnection. The use of Subject to Southwestern’s approval of deliveries within Southwestern’s Interconnection Facilities Service will the ability of such resources or third Control Area are obligated to provide be subject to power factor provisions as parties to meet Southwestern’s technical resources sufficient to meet their loads. specified in this rate schedule. The requirements for provision of such Such obligation is not related to the interconnection customer shall also Ancillary Services, the customer may amount of transmission capacity that schedule and deliver Real Power Losses change the Ancillary Services which it such Customers may have reserved for pursuant to the provisions of this Rate takes from Southwestern and/or from transmission service to a particular load. Schedule based on metered flow other sources at the beginning of any Customers whose resources are through the interconnection where month upon the greater of 60 days scheduled by Southwestern are not Interconnection Facilities Services is written notice or upon the completion subject to this provision. In the event assessed. of any necessary equipment that a Customer under schedules its Rate for Interconnection Facilities modifications necessary to resources to meet its load, resulting in Service: The monthly capacity charge accommodate such change. Such notice a difference between resources and for Interconnection Facilities Service: requirements also apply to requests for actual metered load (adjusted for Southwestern to provide Ancillary transformer losses as applicable) outside Services when such services are the authorized bandwidth for Energy available as specified above. Imbalance Service for any hour, then 10/1/2006–9/30/2008 10/1/2008–9/30/2010 Limitations on Energy Imbalance such Customer is subject to the Service: Energy Imbalance Service is following penalty: $0.90 per kilowatt ...... $0.95 per kilowatt authorized for use only within a Capacity Overrun Penalty bandwidth of ± 1.5 percent of the actual Requirements Related to Power requirements of the load at a particular For each hour during which energy Factor: Any Customer served from point of delivery, for any hour, flows outside the authorized bandwidth, facilities owned by or available by compared to the resources scheduled to the Customer will be obliged to contract to Southwestern will be meet such load during such hour. purchase such energy at the following required to maintain a power factor of Deviations which are greater than ± 1.5 rates: not less than 95 percent and will be percent, but which are less than ± 2,000 subject to the following provisions. Rate per kilowatts, are considered to be within Months associated with charge kilowatt Determination of Power Factor: The the authorized bandwidth. Deviations power factor will be determined for all outside the authorized bandwidth are March, April, May, October, No- Demand Periods and shall be calculated subject to a Capacity Overrun Penalty. vember, December ...... $0.15 under the formula:

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when, in Southwestern’s sole judgment, Environmental Restrictions, Right of =÷22 + PF kWh() kWh rkVAh , low power factor conditions were not Access and Easement under the detrimental to the System of proposed Agreement. with the factors defined as follows: Southwestern due to particular loading For thirty (30) days following the date PF = the power factor for any Demand Period and voltage conditions at the time the of publication of this Notice, the Agency of the month. will receive written comments relating kWh = the total quantity of energy which is power factor dropped below 95 percent delivered during such Demand Period to lagging. to the settlement. The Agency will consider all comments received and the point of delivery or interconnection. [FR Doc. E8–24868 Filed 10–17–08; 8:45 am] rkVAh = the total quantity of reactive may modify or withdraw its consent to BILLING CODE 6450–01–P kilovolt-ampere-hours (kvars) delivered the settlement if comments received during such Demand Period to the point disclose facts or considerations which of delivery or interconnection. indicate that the settlement is ENVIRONMENTAL PROTECTION Power Factor Penalty and inappropriate, improper, or inadequate. AGENCY Assessment: The Customer shall be Commenters may request an assessed a penalty for all Demand [FRL–8731–4] opportunity for a public meeting to be Periods of a month where the power held in the area of Strafford or Thetford, factor is less than 95 percent lagging. Proposed Agreement and Covenant Vermont, in accordance with section For any Demand Period during a Not To Sue Pursuant to the 7003(d) of RCRA, 24 U.S.C. 6973(d). The particular month such penalty shall be Comprehensive Environmental Agency’s response to any comments in accordance with the following Response, Compensation, and Liability received will be available for public formula: Act; In Re: Elizabeth Mine Superfund inspection at One Congress Street, Suite C = D × (.95–LPF) × $0.10 Site, Located in Strafford and Thetford, 1100, Boston, MA 02114. with the factors defined as follows: VT DATES: Comments must be submitted by C = The charge in dollars to be assessed for AGENCY: Environmental Protection November 19, 2008. any particular Demand Period of such Agency. ADDRESSES: Comments or request for a month that the Determination of Power ACTION: public meeting should be addressed to Factor ‘‘PF’’ is calculated to be less than Notice of proposed agreement; request for public comment. the Regional Hearing Clerk, U.S. 95 percent lagging. Environmental Protection Agency, D = The Customer’s demand in kilowatts at the point of delivery for such Demand SUMMARY: In accordance with the Region 1, One Congress Street, Suite Period in which a low power factor was Comprehensive Environmental 1100, Mailcode RAA, Boston, calculated. Response, Compensation, and Liability Massachusetts 02203 and should refer LPF = The lagging power factor, if any, Act, as amended (‘‘CERCLA’’), 42 U.S.C. to: In re: Elizabeth Mine Superfund Site, determined by the formula ‘‘PF’’ for such 9601, et seq., notice is hereby given of U.S. EPA Docket No. CERCLA–01– Demand Period. a proposed Agreement and Covenant 2008–0044. If C is negative, then C = zero (0). Not to Sue between the United States, FOR FURTHER INFORMATION CONTACT: A Application of Power Factor Penalty: on behalf of the U.S. Environmental copy of the proposed Agreement can be The Power Factor Penalty is applicable Protection Agency (‘‘EPA’’), the obtained from Steven Schlang, U.S. to radial interconnections with the Vermont Agency of Natural Resources Environmental Protection Agency, System of Southwestern. The total (‘‘ANR’’) and Settling Parties Theodore Region 1, One Congress Street, Mailcode Power Factor Penalty for any month Zageski, the Estate of Leonard Cook, and SEL, Boston, Massachusetts 02114 or at shall be the sum of all charges ‘‘C’’ for the Elizabeth Mine Corporation (617) 918–1773. all Demand Periods of such month. No (collectively ‘‘Settling Parties’’). Dated: September 22, 2008. penalty is assessed for leading power This proposed Agreement includes a James T. Owens III, factor. Southwestern, in its sole Covenant Not to Sue by the United judgment and at its sole option, may States under sections 106 and 107(a) of Director, Office of Site Remediation and Restoration, Region 1. determine whether power factor CERCLA, 42 U.S.C. 9606 and 9607(a), calculations should be applied to a and section 7003 of the Resource [FR Doc. E8–24870 Filed 10–17–08; 8:45 am] single physical point of delivery or to Conservation and Recovery Act, as BILLING CODE 6560–50–P multiple physical points of delivery amended (‘‘RCRA’’), 42 U.S.C. 6973; and where a Customer has a single, a Covenant Not to Sue by the Vermont electrically integrated load served Agency of Natural Resources under FEDERAL COMMUNICATIONS through multiple points or section 107(a) of CERCLA, 42 U.S.C. COMMISSION interconnections. The general criteria 9607(a), and 10 V.S.A 6615. Radio Broadcasting Services; AM or for such decision shall be that, given the In the proposed Agreement, the FM Proposals To Change the configuration of the Customer’s and Settling Parties have agreed to give the Community of License Southwestern’s systems, Southwestern Environmental Protection Agency will determine, in its sole judgment and permission to remove and use earthen AGENCY: Federal Communications at its sole option, whether the power material such as rock and/or soil Commission. factor calculation more accurately overburden materials such as topsoil, ACTION: Notice. assesses the detrimental impact on sand, silt, clay, gravel, cobbles, and Southwestern’s system when the above boulders located on land owned by SUMMARY: The following applicants filed formula is calculated for a single them for use in implementing response AM or FM proposals to change the physical point of delivery or for a actions at the Elizabeth Mine Superfund community of license: ANDERSON combination of physical points or for an Site. In addition, the Settling Parties RADIO BROADCASTING, INC., Station interconnection as specified by an will record a Notice with the Towns of KZXT, Facility ID 164302, BMPH– Interconnection Agreement. Strafford and Thetford, Vermont that the 20080904ABB, From EUREKA, MT, To Southwestern, at its sole option, may property is subject to a CERCLA EVERGREEN, MT; ATHENS reduce or waive power factor penalties response action and record a Grant of CHRISTIAN RADIO, INC., Station NEW,

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Facility ID 172936, BMPED– ADDRESSES: Federal Communications Federal Deposit Insurance Corporation. 20080925ACR, From Commission, 445 Twelfth Street, SW., Robert E. Feldman, CRAWFORDVILLE, GA, To Washington, DC 20554. Executive Secretary. GREENSBORO, GA; BIRACH FOR FURTHER INFORMATION CONTACT: [FR Doc. E8–24879 Filed 10–17–08; 8:45 am] BROADCASTING CORPORATION, Tung Bui, 202–418–2700. BILLING CODE 6714–01–P Station WGOP, Facility ID 5347, BP– 20071102ARL, From POCOMOKE CITY, SUPPLEMENTARY INFORMATION: The full MD, To DAMASCUS, MD; CC text of these applications is available for FEDERAL HOUSING FINANCE LICENSES, LLC, Station WPHR–FM, inspection and copying during normal AGENCY Facility ID 25018, BPH–20080902ADS, business hours in the Commission’s From AUBURN, NY, To SOLVAY, NY; Reference Center, 445 12th Street, SW., Federal Home Loan Bank Members COX RADIO, INC., Station WNGC, Washington, DC 20554 or electronically Selected for Community Support Facility ID 60810, BPH–20080118AAC, via the Media Bureau’s Consolidated Review From TOCCOA, GA, To ARCADE, GA; Data Base System, http:// AGENCY: COX RADIO, INC., Station WXKT, svartifoss2.fcc.gov/prod/cdbs/pubacc/ Federal Housing Finance Facility ID 3078, BPH–20080619AJQ, prod/cdbs_pa.htm. A copy of this Agency. From ROYSTON, GA, To MAYSVILLE, application may also be purchased from ACTION: Notice. the Commission’s duplicating GA; DAKOTA COMMUNICATIONS, SUMMARY: The Federal Housing Finance contractor, Best Copy and Printing, Inc., LTD., Station KZNC, Facility ID 15262, Agency (FHFA) is announcing the 445 12th Street, SW., Room CY–B402, BPH–20080828AAX, From HURON, SD, Federal Home Loan Bank (Bank) Washington, DC, 20554, telephone 1– To MILBANK, SD; KIMBALL RADIO, members it has selected for the 2008–09 800–378–3160 or http:// LLC, Station KYOY, Facility ID 77915, third quarter review cycle under the www.BCPIWEB.com. BPH–20080910ABW, From KIMBALL, community support requirements NE, To HILLSDALE, WY; LA NUEVA Federal Communications Commission. regulation. This notice also prescribes CADENA RADIO LUZ James D. Bradshaw, the deadline by which Bank members INCORPORATED, Station KBAW, Deputy Chief, Audio Division Media Bureau. selected for review must submit Facility ID 86858, BPH–20081006AIX, [FR Doc. E8–24934 Filed 10–17–08; 8:45 am] Community Support Statements to the From ZAPATA, TX, To RANCHITOS FHFA. LOS LOMAS, TX; LEGEND BILLING CODE 6712–01–P DATES: COMMUNICATIONS OF WYOMING, Bank members selected for the LLC, Station KYTS, Facility ID 165979, review cycle under the community BMPH–20080916ABE, From TEN support requirements regulation must FEDERAL DEPOSIT INSURANCE SLEEP, WY, To MANDERSON, WY; submit completed Community Support CORPORATION Statements to the FHFA on or before MICHAEL RADIO GROUP, Station November 21, 2008. KRKI, Facility ID 89114, BPH– Notice of Agency Meeting 20080929AIT, From NEWCASTLE, WY, ADDRESSES: Bank members selected for To KEYSTONE, SD; NORTHERN the 2008–09 third quarter review cycle Pursuant to the provisions of the under the community support LIGHTS BROADCASTING, LLC, Station ‘‘Government in the Sunshine Act’’ (5 KTTB, Facility ID 70705, BPH– requirements regulation must submit U.S.C. 552b), notice is hereby given that completed Community Support 20080902ADD, From GLENCOE, MN, at 2:35 p.m. on Friday, October 10, To EDINA, MN; NORTHERN LIGHTS Statements to the FHFA either by 2008, the Board of Directors of the regular mail at the Federal Housing BROADCASTING, LLC, Station KRBI, Federal Deposit Insurance Corporation Facility ID 31874, BP–20080902ADB, Finance Board, Office of Supervision, met in open session to consider the Community Investment and Affordable From ST. PETER, MN, To GLENCOE, following matter: MN; SAGA COMMUNICATIONS OF Housing, 1625 Eye Street, NW., Memorandum and resolution re: Interim ILLINOIS, LLC, Station WYMG, Facility Washington, DC 20006, or by electronic Rule on Temporary Increase in Standard ID 58537, BPH–20080820AAI, From mail at [email protected]. Coverage Amount and on Mortgage Servicing FOR FURTHER INFORMATION CONTACT: JACKSONVILLE, IL, To CHATHAM, IL; Accounts. SAIDNEWSFOUNDATION, Station Emma J. Fitzgerald, Program Analyst, WJKZ, Facility ID 175750, BMPED– In calling the meeting, the Board Federal Housing Finance Board Office 20080915AAN, From HANOVER, MI, determined, on motion of Vice of Supervision, Community Investment To HOMER, MI; SOUTHERN STONE Chairman Martin J. Gruenberg, and Affordable Housing, by telephone at BROADCASTING, INC., Station WMGZ, seconded by Director John C. Dugan 202–408–2874, by electronic mail at Facility ID 41993, BPH–20070416ACW, (Comptroller of the Currency), [email protected], or by From EATONTON, GA, To concurred in by Director John M. Reich regular mail at the Federal Housing WASHINGTON, GA; THE UNIVERSITY (Director, Office of Thrift Supervision), Finance Board, 1625 Eye Street, NW., OF FINDLAY, Station WLFC, Facility ID Director Thomas J. Curry (Appointive), Washington, DC 20006. 21474, BPED–20080902AEA, From and Chairman Sheila C. Bair, that SUPPLEMENTARY INFORMATION: FINDLAY, OH, To NORTH Corporation business required its I. Selection for Community Support BALTIMORE, OH; VINEYARD consideration of the matters on less than Review CHRISTIAN FELLOWSHIP OF seven days’ notice to the public; and HONOLULU, INC., Station KPHL, that no notice of the meeting earlier Section 10(g)(1) of the Federal Home Facility ID 91242, BPED–20080910ABT, than October 8, 2008, was practicable. Loan Bank Act (Bank Act) requires the FHFA to promulgate regulations From PAHALA, HI, To HAWAIIAN The meeting was held in the Board establishing standards of community OCEAN VIEW, HI. Room of the FDIC Building located at investment or service Bank members DATES: Comments may be filed through 550—17th Street, NW., Washington, DC. must meet in order to maintain access December 19, 2008. Dated: October 14, 2008. to long-term advances. See 12 U.S.C.

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1430(g)(1). The regulations must take homebuyers. 12 CFR 944.3. Only FHFA by the November 21, 2008 into account factors such as the Bank members subject to the CRA must meet deadline prescribed in this notice. 12 member’s performance under the the CRA standard. 12 CFR 944.3(b). All CFR 944.2(b)(1)(ii) and (c). On or before Community Reinvestment Act of 1977 members, including those not subject to October 24, 2008, each Bank will notify (CRA), 12 U.S.C. 2901 et seq., and CRA, must meet the first-time the members in its district that have record of lending to first-time homebuyer standard. 12 CFR 944.3(c). been selected for the 2008–09 third homebuyers. See 12 U.S.C. 1430(g)(2). Under the rule, the FHFA selects quarter community support review Pursuant to section 10(g) of the Bank approximately one-eighth of the cycle that they must complete and Act, the FHFA’s predecessor agency, the members in each Bank district for submit to the FHFA by the deadline a Federal Housing Finance Board community support review each Community Support Statement. 12 CFR (Finance Board) promulgated a calendar quarter. 12 CFR 944.2(a). The 944.2(b)(2)(i). The member’s Bank will community support requirements FHFA will not review an institution’s provide a blank Community Support regulation that establishes standards a community support performance until it Statement Form, which also is available Bank member must meet in order to has been a Bank member for at least one on the Finance Board Web site at maintain access to long-term advances, year. Selection for review is not, nor http://www.fhfb.gov. Upon request, the and review criteria the FHFA must should it be construed as, any member’s Bank also will provide apply in evaluating a member’s indication of either the financial assistance in completing the community support performance. See condition or the community support Community Support Statement. 12 CFR part 944. The regulation performance of the member. The Finance Board has selected the includes standards and criteria for the Each Bank member selected for following members for the 2008–09 two statutory factors—CRA performance review must complete a Community third quarter community support review and record of lending to first-time Support Statement and submit it to the cycle:

Federal Home Loan Bank of Boston—District 1

Collinsville Savings Society ...... Canton ...... CT Enfield Federal Savings and Loan Association ...... Enfield ...... CT Essex Savings Bank ...... Essex ...... CT The Guilford Savings Bank ...... Guilford ...... CT Nutmeg State Federal Credit Union ...... Rocky Hill ...... CT Northwest Community Bank ...... Winsted ...... CT Bar Harbor Bank and Trust ...... Bar Harbor ...... ME First Federal Savings & Loan Association of Bath ...... Bath ...... ME Camden National Bank ...... Camden ...... ME Aroostook County FS&LA ...... Caribou ...... ME Damariscotta Bank & Trust Company ...... Damariscotta ...... ME Franklin Savings Bank ...... Farmington ...... ME Kennebunk Savings Bank ...... Kennebunk ...... ME Katahdin Trust Company ...... Patten ...... ME Rockland Savings and Loan Association ...... Rockland ...... ME Skowhegan Savings Bank ...... Skowhegan ...... ME Kennebec Federal Savings & Loan Association ...... Waterville ...... ME Athol Savings Bank ...... Athol ...... MA North Middlesex Savings Bank ...... Ayer ...... MA First Federal Savings Bank of Boston ...... Boston ...... MA First Trade Union Bank ...... Boston ...... MA Boston Private Bank & Trust Company ...... Boston ...... MA OneUnited Bank ...... Boston ...... MA Peoples Federal Savings Bank ...... Brighton ...... MA Cambridge Savings Bank ...... Cambridge ...... MA East Cambridge Savings Bank ...... Cambridge ...... MA Bank of Canton ...... Canton ...... MA Clinton Savings Bank ...... Clinton ...... MA Danversbank ...... Danvers ...... MA Dedham Institution for Savings ...... Dedham ...... MA Eagle Bank ...... Everett ...... MA Southern Massachusetts Credit Union ...... Falhaven ...... MA Citizens-Union Savings Bank ...... Fall River ...... MA Family Federal Savings F.A ...... Fitchburg ...... MA Florence Savings Bank ...... Florence ...... MA Foxboro Federal Savings ...... Foxboro ...... MA Colonial Co-operative Bank ...... Gardner ...... MA Georgetown Savings Bank ...... Georgetown ...... MA Hingham Institution for Savings ...... Hingham ...... MA Peoples Bank ...... Holyoke ...... MA Hyde Park Savings Bank ...... Hyde Park ...... MA Equitable Co-operative Bank ...... Lynn ...... MA Mansfield Co-Operative Bank ...... Mansfield ...... MA Marblehead Savings Bank ...... Marblehead ...... MA Milford Federal Savings and Loan Association ...... Milford ...... MA Millbury Savings Bank ...... Millbury ...... MA Monson Savings Bank ...... Monson ...... MA River Bank North ...... Andover ...... MA Northampton Cooperative Bank ...... Northampton ...... MA

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Hometown Bank, a Co-Operative Bank ...... Oxford ...... MA Colonial Federal Savings Bank ...... Quincy ...... MA Reading Co-Operative Bank ...... Reading ...... MA Saugusbank, A Cooperative Bank ...... Saugus ...... MA Scituate Federal Savings Bank ...... Scituate ...... MA Middlesex Federal Savings, F.A ...... Somerville ...... MA Southbridge Savings Bank ...... Southbridge ...... MA Spencer Savings Bank ...... Spencer ...... MA Hampden Bank ...... Springfield ...... MA Bristol County Savings Bank ...... Taunton ...... MA Mechanics Co-operative Bank ...... Taunton ...... MA The Savings Bank ...... Wakefield ...... MA South Shore Savings Bank ...... Weymouth ...... MA Federal Savings Bank ...... Dover ...... NH Franklin Savings Bank ...... Franklin ...... NH RBS Citizens, National Association ...... Meredith ...... NH Salem Co-operative Bank ...... Salem ...... NH Newport Federal Savings Bank ...... Newport ...... RI Rhode Island Credit Union ...... Providence ...... RI Union Bank ...... Morrisville ...... VT Northfield Savings Bank ...... Northfield ...... VT Randolph National Bank ...... Randolph ...... VT

Federal Home Loan Bank of New York—District 2

Audubon Savings Bank ...... Audubon ...... NJ Pamrapo Savings Bank SLA ...... Bayinne ...... NJ Bogota Savings Bank ...... Bogota ...... NJ Peoples Savings Bank ...... Bordentown ...... NJ Century Savings Bank ...... Bridgeton ...... NJ Colonial Bank FSB ...... Bridgeton ...... NJ Farmers & Mechanics Bank ...... Burlington ...... NJ Sturdy Savings Bank ...... Cape May Court House .. NJ Spencer Savings Bank, SLA ...... Elmwood Park ...... NJ NVE Bank ...... Englewood ...... NJ Kearny Federal Savings Bank ...... Fairfield ...... NJ Freehold Savings & Loan Association ...... Freehold ...... NJ GSL Savings Bank ...... Guttenberg ...... NJ Glen Rock Savings Bank ...... Hawthorne ...... NJ Morgan Stanley Trust ...... Jersey City ...... NJ Schuyler Savings Bank ...... Kearny ...... NJ Lincoln Park Savings Bank ...... Lincoln Park ...... NJ Metuchen Savings Bank ...... Metuchen ...... NJ Millington Savings Bank ...... Millington ...... NJ Ocean City Home Bank ...... Ocean City ...... NJ Amboy National Bank ...... Old Bridge ...... NJ Roma Bank ...... Robbinsville ...... NJ Boiling Springs Savings Bank ...... Rutherford ...... NJ Gloucester County Federal Savings Bank ...... Sewell ...... NJ Investor Savings Bank ...... Short Hills ...... NJ OceanFirst Bank ...... Toms River ...... NJ Oritani Savings Bank ...... Township of Washington NJ Penn Federal Savings Bank ...... West Orange ...... NJ The Bank ...... Woodbury ...... NJ Brooklyn Federal Savings Bank ...... Brooklyn ...... NY The Canandaigua NB&TC ...... Canandaigua ...... NY Canisteo Savings & Loan Association ...... Canisteo ...... NY Elmira Savings Bank, FSB ...... Elmira ...... NY Glens Falls National Bank and Trust Company ...... Glens Falls ...... NY Evans National Bank ...... Hamburg ...... NY Maple City Savings Bank, FSB ...... Hornell ...... NY Sunnyside FS&LA of Irvington ...... Irvington ...... NY Cattaraugus County Bank ...... Little Valley ...... NY The Lyons National Bank ...... Lyons ...... NY Maspeth Federal Savings and Loan Association ...... Maspeth ...... NY Massena Savings & Loan Association ...... Massena ...... NY Cross County Federal Savings Bank ...... Middle Village ...... NY Provident Bank ...... Montebello ...... NY Carver Federal Savings Bank ...... New York ...... NY The Berkshire Bank ...... New York ...... NY Country Bank ...... New York ...... NY Abacus Federal Savings Bank ...... New York ...... NY Chinatown Federal Savings Bank ...... New York ...... NY Wilber National Bank ...... Oneonta ...... NY Union State Bank ...... Orangeburg ...... NY PathFinder Bank ...... Oswego ...... NY

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The Upstate National Bank ...... Rochester ...... NY Saratoga National Bank & Trust Company ...... Saratoga Springs ...... NY The National Bank of Stamford ...... Stamford ...... NY Wallkill Valley FS&LA ...... Wallkill ...... NY Five Star Bank ...... Warsaw ...... NY Doral Bank ...... San Juan ...... PR Oriental Bank & Trust ...... San Juan ...... PR

Federal Home Loan Bank of Pittsburgh—District 3

Delaware National Bank ...... Georgetown ...... DE Artisans’ Bank ...... Wilmington ...... DE Altoona First Savings Bank ...... Altoona ...... PA Reliance Bank ...... Altoona ...... PA Investment Savings Bank ...... Altoona ...... PA First Columbia Bank & Trust ...... Bloomsburg ...... PA The Bryn Mawr Trust Company ...... Bryn Mawr ...... PA NexTier Bank ...... Butler ...... PA Community Bank ...... Carmichaels ...... PA Charleroi Federal Savings Bank ...... Charleroi ...... PA CNB Bank ...... Clearfield ...... PA Coatesville Savings Bank ...... Coatesville ...... PA Slovenian S&LA of Franklin-Conemaugh ...... Conemaugh ...... PA FirsTrust Bank ...... Conshohocken ...... PA First National Community Bank ...... Dunmore ...... PA Armstrong County Building & Loan Association ...... Ford City ...... PA Greenville Savings Bank ...... Greenville ...... PA Halifax National Bank ...... Halifax ...... PA Peoples National Bank ...... Hallstead ...... PA The Honesdale National Bank ...... Honesdale ...... PA Polonia Bank ...... Huntingdon Valley ...... PA Mauch Chunk Trust Company ...... Jim Thorpe ...... PA 1st Summit Bank ...... Johnstown ...... PA Union National Community Bank ...... Lancaster ...... PA Westmoreland FS&LA ...... Latrobe ...... PA VIST Bank ...... Leesport ...... PA Mifflin County Savings Bank ...... Lewistown ...... PA Luzerne National Bank ...... Luzerne ...... PA First Citizens National Bank ...... Mansfield ...... PA Mifflinburg Bank & Trust Company ...... Mifflinburg ...... PA The First National Bank of Mifflintown ...... Mifflintown ...... PA First Federal Savings Bank ...... Monessen ...... PA Parkvale Savings Bank ...... Monroeville ...... PA The Muncy Bank and Trust Company ...... Muncy ...... PA Community State Bank of Orbisonia ...... Orbisonia ...... PA Conestoga Bank ...... Philadelphia ...... PA Republic First Bank ...... Philadelphia ...... PA Prudential Savings Bank ...... Philadelphia ...... PA Beneficial Mutual Savings Bank ...... Philadelphia ...... PA Slovak Savings Bank ...... Pittsburgh ...... PA Eureka Bank ...... Pittsburgh ...... PA Iron and Glass Bank ...... Pittsburgh ...... PA United-American Savings Bank ...... Pittsburgh ...... PA West View Savings Bank ...... Pittsburgh ...... PA Union Bank and Trust Company ...... Pottsville ...... PA Liberty Savings Bank, F.S.B ...... Pottsville ...... PA Elk County Savings & Loan Association ...... Ridgway ...... PA Scottdale Bank and Trust Company ...... Scottdale ...... PA Sewickley Savings Bank ...... Sewickley ...... PA Hamlin Bank and Trust Company ...... Smethport ...... PA ESSA Bank & Trust ...... Stroudsburg ...... PA Eagle National Bank ...... Upper Darby ...... PA Northwest Savings Bank ...... Warren ...... PA Washington Federal Savings Bank ...... Washington ...... PA First FS&LA of Greene County ...... Waynesburg ...... PA Citizens & Northern Bank ...... Wellsboro ...... PA Peoples State Bank of Wyalusing ...... Wyalusing ...... PA City National Bank of West Virginia ...... Cross Lanes ...... WV Calhoun County Bank, Inc ...... Grantsville ...... WV First Sentry Bank, Inc ...... Huntington ...... WV Huntington Federal Savings Bank ...... Huntington ...... WV Citizens Bank of Morgantown ...... Morgantown ...... WV Doolin Security Savings Bank FSB ...... New Martinsville ...... WV United Bank, Inc ...... Parkersburg ...... WV First FS&LA of Ravenswood ...... Ravenswood ...... WV First National Bank in Ronceverte ...... Ronceverte ...... WV

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First Federal Savings Bank ...... Sistersville ...... WV The Williamstown National Bank ...... Williamstown ...... WV

Federal Home Loan Bank of Atlanta—District 4

The Exchange Bank of Alabama ...... Altoona ...... AL First Commercial Bank ...... Birmingham ...... AL Capital South Bank ...... Birmingham ...... AL Brantley Bank and Trust Company ...... Brantley ...... AL Central State Bank ...... Calera ...... AL The Camden National Bank ...... Camden ...... AL Frontier Bank ...... Chelsea ...... AL Robertson Banking Company ...... Demopolis ...... AL SunSouth Bank ...... Dothan ...... AL The Southern Bank Company ...... Gadsen ...... AL The Citizens Bank ...... Greensboro ...... AL First National Bank ...... Hamilton ...... AL The Headland National Bank ...... Headland ...... AL Security Federal Savings Bank ...... Jasper ...... AL First State Bank ...... Lineville ...... AL First Citizens Bank ...... Luverne ...... AL BankTrust ...... Mobile ...... AL First Tuskegee Bank ...... Montgomery ...... AL The Citizens Bank ...... Moulton ...... AL Phenix-Girard Bank ...... Phenix City ...... AL Citizens Bank, Inc...... Robertsdale ...... AL The Slocomb National Bank ...... Slocomb ...... AL The Bank of Vernon ...... Vernon ...... AL Bank of Wedowee ...... Wedowee ...... AL Wilmington Trust FSB ...... Wilmington ...... DE Bank of Belle Glade ...... Belle Glade ...... FL Community Bank of Manatee ...... Bradenton ...... FL BankUnited, FSB ...... Coral Gables ...... FL BankAtlantic ...... Fort Lauderdale ...... FL 1st United Bank ...... Fort Lauderdale ...... FL Florida Citizens Bank ...... Gainesville ...... FL Natbank, N.A ...... Hollywood ...... FL VyStar Credit Union ...... Jacksonville ...... FL First State Bank of Florida Keys ...... Key West ...... FL Central Florida Educators’ FCU ...... Lake Mary ...... FL Mercantile Commercebank, National Association ...... Miami ...... FL FirstBank Florida ...... Miami ...... FL Eagle National Bank of Miami ...... Miami ...... FL Republic Federal Bank, NA ...... Miami ...... FL International Finance Bank ...... Miami ...... FL Orion Bank ...... Naples ...... FL First Federal Bank of North Florida ...... Palatka ...... FL Bay Bank and Trust Company ...... Panama City ...... FL OptimumBank ...... Plantation ...... FL Charlotte State Bank ...... Port Charlotte ...... FL Federal Trust Bank ...... Sanford ...... FL Bank of St. Augustine ...... St. Augustine ...... FL Capital City Bank ...... Tallahassee ...... FL Progress Bank of Florida ...... Tampa ...... FL Wauchula State Bank ...... Wauchula ...... FL Bank of Alapaha ...... Alapaha ...... GA Cornerstone Bank ...... Atlanta ...... GA Georgia Bank and Trust Company of Augusta ...... Augusta ...... GA United Community Bank ...... Blairsville ...... GA Planters and Citizens Bank ...... Camilla ...... GA The Claxton Bank ...... Claxon ...... GA Newton Federal Bank ...... Covington ...... GA Chestatee State Bank ...... Dawsonville ...... GA First National Bank of Coffee County ...... Douglas ...... GA Bank of Eastman ...... Eastman ...... GA Farmers & Merchants Bank ...... Eatonton ...... GA Elberton Federal Savings & Loan Association ...... Elberton ...... GA Central Bank of Georgia ...... Ellaville ...... GA Appalachian Community Bank ...... Ellijay ...... GA Capital Bank ...... Fort Oglethorpe ...... GA The Farmers Bank ...... Greensboro ...... GA BankSouth ...... Greensboro ...... GA Bank of Hiawassee ...... Hiawassee ...... GA Crescent Bank & Trust Company ...... Jasper ...... GA Farmers State Bank ...... Lincolnton ...... GA Peoples Bank ...... Lyons ...... GA

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Pineland State Bank ...... Metter ...... GA Mount Vernon Bank ...... Mt. Vernon ...... GA The Citizens Bank ...... Nashville ...... GA The Bank of Georgia ...... Peachtree City ...... GA Gateway Bank and Trust ...... Ringgold ...... GA Greater Rome Bank ...... Rome ...... GA The Coastal Bank ...... Savannah ...... GA Farmers & Merchants Bank ...... Statesboro ...... GA Spivey State Bank ...... Swainsboro ...... GA Commercial Bank ...... Thomasville ...... GA First Federal Savings and Loan of Valdosta ...... Valdosta ...... GA Severn Savings Bank, F.S.B ...... Annapolis ...... MD Hamilton Federal Bank ...... Baltimore ...... MD Fraternity Federal S&L Association ...... Baltimore ...... MD Homewood Federal Savings Bank ...... Baltimore ...... MD Advance Bank ...... Baltimore ...... MD Saint Casimirs Savings Bank ...... Baltimore ...... MD United Medical Bank ...... Baltimore ...... MD Provident Bank of Maryland ...... Baltimore ...... MD Community First Bank ...... Baltimore ...... MD Urban Trust Bank ...... Bethesda ...... MD Presidential Bank, FSB ...... Bethesda ...... MD The Peoples Bank ...... Chestertown ...... MD Easton Bank & Trust ...... Easton ...... MD The Talbot Bank of Easton ...... Easton ...... MD The Peoples Bank of Elkton ...... Elkton ...... MD Madison Bohemian Savings Bank ...... Forest Hills ...... MD American Bank ...... Greenbelt ...... MD Eastern Savings Bank, FSB ...... Hunt Valley ...... MD Jarrettsville Federal S&L Association ...... Jarrettsville ...... MD K Bank ...... Owings Mills ...... MD Baltimore County Savings Bank, FSB ...... Perry Hall ...... MD Colombo Bank ...... Rockville ...... MD First Shore FS&L Association ...... Salisbury ...... MD Sykesville Federal Savings Association ...... Sykesville ...... MD AmericasBank ...... Towson ...... MD Maryland Bank and Trust Company, N.A ...... Waldorf ...... MD The East Carolina Bank ...... Engelhard ...... NC High Point Bank and Trust Company ...... High Point ...... NC Branch Banking and Trust Company ...... Lumberton ...... NC RBC Bank (USA) ...... Rocky Mount ...... NC First Bank ...... Troy ...... NC Piedmont Federal Savings Bank ...... Winston Salem ...... NC Sandhills Bank ...... Bethune ...... SC Woodlands Bank ...... Bluffton ...... SC First Palmetto Savings Bank, FSB ...... Camden ...... SC Spratt Savings and Loan Association ...... Chester ...... SC Southern First Bank ...... Greenville ...... SC The Peoples Bank ...... Iva ...... SC The Palmetto Bank ...... Laurens ...... SC The Citizens Bank ...... Olanta ...... SC Plantation Federal Bank ...... Pawleys Island ...... SC Woodruff Federal Savings & Loan Association ...... Woodruff ...... SC Virginia Commerce Bank ...... Arlington ...... VA First State Bank ...... Danville ...... VA EVB ...... Glenns ...... VA Powell Valley National Bank ...... Jonesville ...... VA First and Citizens Bank ...... Monterey ...... VA Shore Bank ...... Onley ...... VA First Federal Savings Bank of Virginia ...... Petersburg ...... VA The Bank of Charlotte County ...... Phenix ...... VA Valley Bank ...... Roanoke ...... VA Community Bank ...... Staunton ...... VA

Federal Home Loan Bank of Cincinnati—District 5

Kentucky Home Bank, Inc ...... Bardstown ...... KY Bank of Edmonson County ...... Brownsville ...... KY United Citizens Bank & Trust Company ...... Campbellsburg ...... KY Citizens Bank & Trust Company ...... Campbellsville ...... KY Farmers and Traders Bank of Campton ...... Campton ...... KY Carrollton Federal Bank ...... Carrollton ...... KY The First National Bank of Muhlenburg County ...... Central City ...... KY Bank of Clarkson ...... Clarkson ...... KY First Community Bank of Western Kentucky, Inc ...... Clinton ...... KY Clinton Bank ...... Clinton ...... KY

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Citizens Federal Savings and Loan Association of Covington ...... Covington ...... KY The Farmers National Bank of Cynthiana ...... Cynthiana ...... KY Central Kentucky Federal Savings Bank ...... Danville ...... KY South Central Bank, FSB ...... Elizabethton ...... KY United Kentucky Bank of Pendleton County, Inc ...... Falmouth ...... KY American Founders Bank, Inc ...... Frankfort ...... KY Fredonia Valley Bank ...... Fredonia ...... KY State Bank & Trust Company ...... Harrodsburg ...... KY First Federal Savings & Loan Association ...... Hazard ...... KY The Citizens National Bank ...... Lebanon ...... KY Bank of the Bluegrass & Trust Company ...... Lexington ...... KY First Federal Bank ...... Lexington ...... KY Peoples Security Bank ...... Louisa ...... KY The First Capital Bank of Kentucky ...... Louisville ...... KY Home Federal Bank Corporation ...... Middlesboro ...... KY First FS&LA of Morehead ...... Morehead ...... KY Commonwealth Bank, F.S.B ...... Mt. Sterling ...... KY Traditional Bank, Inc ...... Mt. Sterling ...... KY Citizens Bank ...... Mt. Vernon ...... KY Peoples Bank of Mt. Washington ...... Mt. Washington ...... KY Farmers Bank & Trust Company, Inc ...... Princeton ...... KY First Southern National Bank ...... Stanford ...... KY Farmers National Bank ...... Walton ...... KY Liberty National Bank ...... Ada ...... OH Belmont Savings Bank ...... Bellaire ...... OH The Citizens National Bank of Bluffton ...... Bluffton ...... OH The Brookville Building and Savings Association ...... Brookville ...... OH First Federal Community Bank of Bucyrus ...... Bucyrus ...... OH Peoples Savings and Loan Company ...... Bucyrus ...... OH Columbia Savings Bank ...... Cincinnati ...... OH KEMBA Financial CU, Inc ...... Cincinnati ...... OH New Foundation Loan and Building Company ...... Cincinnati ...... OH Warsaw Federal S&LA of Cincinnati ...... Cincinnati ...... OH The Franklin Savings and Loan Company ...... Cincinnati ...... OH First Safety Bank ...... Cincinnati ...... OH The Savings Bank ...... Circleville ...... OH Third FS&LA of Cleveland ...... Cleveland ...... OH First City Bank ...... Columbus ...... OH The Cortland Savings and Banking Company ...... Cortland ...... OH Ohio Heritage Bank ...... Coshocton ...... OH Valley Savings Bank ...... Cuyahoga Falls ...... OH First Federal Bank of the Midwest ...... Defiance ...... OH United Midwest Savings Bank ...... DeGraff ...... OH Fidelity FS&LA of Delaware ...... Delaware ...... OH First Federal Community Bank ...... Dover ...... OH Heartland Bank ...... Gahanna ...... OH Home Building and Loan Company ...... Greenfield ...... OH Greenville Federal Savings and Loan Association ...... Greenville ...... OH NCB, FSB ...... Hillsboro ...... OH Merchants National Bank ...... Hillsboro ...... OH Liberty Federal Savings Bank ...... Ironton ...... OH Ohio River Bank ...... Ironton ...... OH Home Savings Bank ...... Kent ...... OH The Home Savings and Loan Company of Kenton, Ohio ...... Kenton ...... OH Kingston National Bank ...... Kingston ...... OH First FS&LA of Lakewood ...... Lakewood ...... OH Fairfield Federal S&LA of Lancaster ...... Lancaster ...... OH 1st National Bank ...... Lebanon ...... OH Leesburg Federal Savings Bank ...... Leesburg ...... OH The Citizens Bank of Logan ...... Logan ...... OH The Mechanics Savings Bank ...... Mansfield ...... OH Peoples Bank, National Association ...... Marietta ...... OH The Middlefield Banking Company ...... Middlefield ...... OH The Nelsonville Home and Savings Association ...... Nelsonville ...... OH New Carlisle Federal Savings Bank ...... New Carlisle ...... OH First FS&LA of Newark ...... Newark ...... OH The Park National Bank ...... Newark ...... OH The National Bank of Oak Harbor ...... Oak Harbor ...... OH American Savings Bank, fsb ...... Portsmouth ...... OH The Valley Central Savings Bank ...... Reading ...... OH The Citizens Banking Company ...... Sandusky ...... OH Peoples Federal Savings and Loan Association of Sidney ...... Sidney ...... OH Commodore Bank ...... Somerset ...... OH Somerville National Bank ...... Somerville ...... OH Home City Federal Savings Bank ...... Springfield ...... OH Monroe Federal Savings and Loan Association ...... Tipp City ...... OH

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Perpetual Federal Savings Bank ...... Urbana ...... OH Van Wert Federal Savings Bank ...... Van Wert ...... OH Home Savings Bank ...... Wapakoneta ...... OH The Waterford Commercial and Savings Bank ...... Waterford ...... OH Adams County Building and Loan Company ...... West Union ...... OH Liberty Savings Bank, F.S.B ...... Wilmington ...... OH North Valley Bank ...... Zanesville ...... OH Farmers & Merchants Bank ...... Adamsville ...... TN First South Credit Union ...... Bartlett ...... TN Bank of Bartlett ...... Bartlett ...... TN Bank of Crocker ...... Bells ...... TN InTrust Federal Credit Union ...... Chattanooga ...... TN F&M Bank ...... Clarksville ...... TN Decatur County Bank ...... Decaturville ...... TN Farmers and Merchants Bank ...... Dyer ...... TN First Citizens National Bank of Dyersburg ...... Dyersburg ...... TN Elizabethton Federal Savings Bank ...... Elizabethton ...... TN The Bank of Jackson ...... Jackson ...... TN Progressive Savings Bank, F.S.B ...... Jamestown ...... TN Home Federal Bank of Tennessee ...... Knoxville ...... TN Wilson Bank and Trust ...... Lebanon ...... TN First National Bank of Tennessee ...... Livingston ...... TN Volunteer Federal Savings & Loan Association of Madisonville ...... Madisonville ...... TN Trust One Bank ...... Memphis ...... TN Jefferson Federal Bank ...... Morristown ...... TN Citizens Bank ...... New Tazewell ...... TN Newport Federal Bank ...... Newport ...... TN TNBANK ...... Oak Ridge ...... TN Citizens Community Bank ...... Winchester ...... TN

Federal Home Loan Bank of Indianapolis—District 6

Independent Federal Credit Union ...... Anderson ...... IN First Federal Savings Bank—Angola ...... Angola ...... IN Peoples FSB of Dekalb County ...... Auburn ...... IN Farmers and Mechanics FS&LA ...... Bloomfield ...... IN Boonville Federal Savings Bank ...... Boonville ...... IN The First State Bank ...... Bourbon ...... IN Riddell National Bank ...... Brazil ...... IN Indiana Bank and Trust Company ...... Columbus ...... IN Union Savings & Loan Association ...... Connersville ...... IN Community First Bank ...... Corydon ...... IN First Federal Savings Bank ...... Evansville ...... IN Old National Bank ...... Evansville ...... IN Farmers Bank ...... Frankfort ...... IN Newton County Loan & SA, FSB ...... Goodland ...... IN First Federal Savings & Loan of Greensburg ...... Greensburg ...... IN Lake Federal Bank, FSB ...... Hammond ...... IN Pacesetter Bank ...... Hartford City ...... IN Kentland Federal Savings and Loan Association ...... Kentland ...... IN La Porte Savings Bank ...... La Porte ...... IN Logansport Savings Bank, FSB ...... Logansport ...... IN Security Federal Savings Bank ...... Logansport ...... IN Home Bank, SB ...... Martinsville ...... IN The First National Bank of Monterey ...... Monterey ...... IN First Merchants Bank, N.A ...... Muncie ...... IN Mutual Bank ...... Muncie ...... IN Peoples Bank SB ...... Munster ...... IN American Savings, FSB ...... Munster ...... IN Farmers State Bank ...... New Ross ...... IN Community Bank ...... Noblesville ...... IN The First National Bank of Odon ...... Odon ...... IN Lincoln Bank ...... Plainfield ...... IN First Bank Richmond, N.A ...... Richmond ...... IN Mid-Southern Savings Bank, FSB ...... Salem ...... IN Scottsburg Building & Loan Association ...... Scottsburg ...... IN Owen Community Bank, s.b ...... Spencer ...... IN Owen County State Bank ...... Spencer ...... IN Grant County State Bank ...... Swayzee ...... IN First Financial Bank ...... Terre Haute ...... IN Crossroads Bank ...... Wabash ...... IN First Federal Savings Bank ...... Washington ...... IN Liberty Savings Bank, FSB ...... Whiting ...... IN Bank of Wolcott ...... Wolcott ...... IN Commercial Bank ...... Alma ...... MI First Federal of Northern Michigan ...... Alpena ...... MI

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Bay Port State Bank ...... Bay Port ...... MI Tri-County Bank ...... Brown City ...... MI Eaton Federal Savings Bank ...... Charlotte ...... MI Monarch Community Bank ...... Coldwater ...... MI Huron Community Bank ...... East Tawas ...... MI Paramount Bank ...... Farmington Hills ...... MI Select Bank ...... Grand Rapids ...... MI Peoples State Bank ...... Hamtramck ...... MI Hastings City Bank ...... Hastings ...... MI Union Bank ...... Lake Odessa ...... MI Peoples State Bank of Munising ...... Munising ...... MI New Buffalo Savings Bank, FSB ...... New Buffalo ...... MI Thumb National Bank & Trust ...... Pigeon ...... MI Citizens First Savings Bank ...... Port Huron ...... MI Kalamazoo County State Bank ...... Schoolcraft ...... MI First National Bank of St. Ignace ...... St. Ignace ...... MI Edgewater Bank ...... St. Joseph ...... MI FNB Financial ...... Three Rivers ...... MI Northwestern Bank ...... Traverse City ...... MI First National Bank of Wakefield ...... Wakefield ...... MI

Federal Home Loan Bank of Chicago—District 7

First Community Bank and Trust ...... Beecher ...... IL First State Bank of Beecher City ...... Beecher City ...... IL American Enterprise Bank ...... Buffalo Grove ...... IL Farmers State Bank of Camp Point ...... Camp Point ...... IL The First National Bank in Carlyle ...... Carlyle ...... IL Cornerstone Bank & Trust, N.A ...... Carrollton ...... IL Central Illinois Bank—MC ...... Champaign ...... IL BankChampaign, N.A ...... Champaign ...... IL First Federal Savings Bank of Champaign–Urbana ...... Champaign ...... IL Charleston Federal Savings & Loan Association ...... Charleston ...... IL Lincoln Park Savings Bank ...... Chicago ...... IL Washington Federal Bank for Savings ...... Chicago ...... IL Central Federal S&LA of Chicago ...... Chicago ...... IL South Central Bank, N.A ...... Chicago ...... IL Oak Bank ...... Chicago ...... IL Broadway Bank ...... Chicago ...... IL Community Savings Bank ...... Chicago ...... IL Columbus Savings Bank ...... Chicago ...... IL Liberty Bank for Savings ...... Chicago ...... IL Mutual Federal Savings and Loan Association of Chicago ...... Chicago ...... IL Diamond Bank FSB ...... Chicago ...... IL Pulaski Savings Bank ...... Chicago ...... IL First Chicago Bank & Trust ...... Chicago ...... IL Illinois Service Federal Savings & Loan Association ...... Chicago ...... IL Family Federal Savings of Illinois ...... Cicero ...... IL West Town Savings Bank ...... Cicero ...... IL The John Warner Bank ...... Clinton ...... Il Home Federal Savings & Loan Association ...... Collinsville ...... IL Collinsville Building and Loan Association ...... Collinsville ...... IL The Elizabeth State Bank ...... Elizabeth ...... IL Flora Bank & Trust ...... Flora ...... IL Forreston State Bank ...... Forreston ...... IL Hickory Point Bank & Trust, FSB ...... Forsyth ...... IL Community Bank—Wheaton/Glen Ellyn ...... Glen Ellyn ...... IL Glenview State Bank ...... Glenview ...... IL Guardian Savings Bank FSB ...... Granite City ...... IL First National Bank of Grant Park ...... Grant Park ...... IL Granville National Bank ...... Granville ...... IL The Bradford National Bank of Greenville ...... Greenville ...... IL The Havana National Bank ...... Havana ...... IL Herrin Security Bank ...... Herrin ...... IL South End Savings, s.b ...... Homewood ...... IL First State Bank of Western Illinois ...... La Harpe ...... IL Eureka Savings Bank ...... La Salle ...... IL First National Bank of Illinois ...... Lansing ...... IL Heritage State Bank ...... Lawrenceville ...... IL Lisle Savings Bank ...... Lisle ...... IL The First National Bank of Litchfield ...... Litchfield ...... IL West Suburban Bank ...... Lombard ...... IL First Security Bank ...... Mackinaw ...... IL First Bank of Manhattan ...... Manhattan ...... IL 1st State Bank of Mason City ...... Mason City ...... IL Mazon State Bank ...... Mazon ...... IL

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McHenry Savings Bank ...... McHenry ...... IL The City National Bank of Metropolis ...... Metropolis ...... IL Milford Building & Loan Association ...... Milford ...... IL First National Bank ...... Moline ...... IL Wabash Savings Bank ...... Mount Carmel ...... IL The Farmers Bank of Mount Pulaski ...... Mount Pulaski ...... IL Brown County State Bank ...... Mount Sterling ...... IL Nashville Savings Bank ...... Nashville ...... IL Wheaton Bank & Trust Company ...... Northfield ...... IL Illini State Bank ...... Oglesby ...... IL BankFinancial, FSB ...... Olympia Fields ...... IL Herget Bank, N.A ...... Pekin ...... IL National Bank of Petersburg ...... Petersburg ...... IL The Poplar Grove State Bank ...... Poplar Grove ...... Il Citizens First National Bank ...... Princeton ...... IL First Robinson Savings Bank, NA ...... Robinson ...... IL First Federal Savings & Loan Association ...... Shelbyville ...... IL Citizens State Bank of Shipman ...... Shipman ...... IL Town & Country Bank of Springfield ...... Springfield ...... IL Marine Bank, Springfield ...... Springfield ...... IL Tremont Savings Bank ...... Tremont ...... IL The First National Bank ...... Vandalia ...... IL International Bank of Amherst ...... Amherst ...... WI The First National Bank of Bangor ...... Bangor ...... WI Banner Banks ...... Birnamwood ...... WI Community First Bank ...... Boscobel ...... WI The Bank of Brodhead ...... Brodhead ...... WI North Shore Bank FSB ...... Brookfield ...... WI Bank of Deerfield ...... Deerfield ...... WI National Exchange Bank & Trust ...... Fond du Lac ...... WI Fox Valley Savings Bank ...... Fond du Lac ...... WI PremierBank ...... Fort Atkinson ...... WI Continental Savings Bank, FSB ...... Greenfield ...... WI PyraMax Bank, F.S.B...... Greenfield ...... WI Greenleaf Wayside Bank ...... Greenleaf ...... WI Hustisford State Bank ...... Hustisford ...... WI ISB Community Bank ...... Ixonia ...... WI Mid America Bank ...... Janesville ...... WI Union State Bank ...... Kewaunee ...... WI Ladysmith Federal Savings & Loan Association ...... Ladysmith ...... WI Bank of Lake Mills ...... Lake Mills ...... WI BLC Community Bank ...... Little Chute ...... WI Rural American Bank—Luck ...... Luck ...... WI AnchorBank, F.S.B...... Madison ...... WI Home Savings Bank ...... Madison ...... WI Markesan State Bank ...... Markesan ...... WI The Peoples Community Bank ...... Mazomanie ...... WI Fidelity National Bank ...... Medford ...... WI Bremer Bank, National Association ...... Menomonie ...... WI Merrill Federal Savings and Loan Association ...... Merrill ...... WI Middleton Community Bank ...... Middleton ...... WI Milton Savings Bank ...... Milton ...... WI First Community Bank ...... Milton ...... WI Guaranty Bank ...... Milwaukee ...... WI West Pointe Bank ...... Oshkosh ...... WI Bank of Elmwood ...... Racine ...... WI Dairy State Bank ...... Rice Lake ...... WI Community Business Bank ...... Sauk City ...... WI Heritage Bank ...... Spencer ...... WI Baylake Bank ...... Sturgeon Bay ...... WI Superior Savings Bank ...... Superior ...... WI First Bank ...... Tomah ...... WI Farmers & Merchants Bank ...... Tomah ...... WI The Farmers State Bank of Waupaca ...... Waupaca ...... WI The National Bank of Waupun ...... Waupun ...... WI Maritime Savings Bank ...... West Allis ...... WI West Bend Savings Bank ...... West Bend ...... WI First Citizens State Bank ...... Whitewater ...... WI Paper City Savings Association ...... Wisconsin Rapids ...... WI

Federal Home Loan Bank of Des Moines—District 8

Peoples State Bank ...... Albia ...... IA Community Bank ...... Alton ...... IA Bank Iowa ...... Altoona ...... IA First National Bank of Ames ...... Ames ...... IA

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Citizens Savings Bank ...... Anamosa ...... IA Community State Bank, N.A...... Ankeny ...... IA Ashton State Bank ...... Ashton ...... IA Atkins Savings Bank & Trust ...... Atkins ...... IA Farmers & Traders Savings Bank ...... Bancroft ...... IA Chelsea Savings Bank ...... Belle Plaine ...... IA Boone Bank & Trust Company ...... Boone ...... IA Iowa Prairie Bank ...... Brunsville ...... IA Lincoln Savings Bank ...... Cedar Falls ...... IA Guaranty Bank & Trust Company ...... Cedar Rapids ...... IA Iowa Trust and Savings Bank ...... Centerville ...... IA First Security Bank and Trust Company ...... Charles City ...... IA Cherokee State Bank ...... Cherokee ...... IA Page County Federal Savings Association ...... Clarinda ...... IA First Trust and Savings Bank ...... Coralville ...... IA First Federal Savings Bank of Creston, F.S.B...... Creston ...... IA Principal Bank ...... Des Moines ...... IA Dubuque Bank & Trust Company ...... Dubuque ...... IA Fidelity Bank & Trust ...... Dyersville ...... IA Community Savings Bank ...... Edgewood ...... IA First American Bank ...... Fort Dodge ...... IA Citizens State Bank ...... Fort Dodge ...... IA First Federal Savings Bank of Iowa ...... Fort Dodge ...... IA Security State Bank ...... Guttenberg ...... IA Westside State Bank ...... Halbur ...... IA Hampton State Bank ...... Hampton ...... IA First State Bank ...... Hawarden ...... IA Bank Iowa ...... Humboldt ...... IA Independence Federal Bank for Savings ...... Independence ...... IA Farmers & Merchants Savings Bank ...... Iowa City ...... IA First Community Bank ...... Keokuk ...... IA State Central Bank ...... Keokuk ...... IA Keokuk Savings Bank & Trust Company ...... Keokuk ...... IA Iowa State Savings Bank ...... Knoxville ...... IA Cedar Valley Bank & Trust ...... La Porte City ...... IA Keystone Savings Bank ...... Marengo ...... IA Heritage Bank ...... Marion ...... IA F & M Bank—Iowa ...... Marshalltown ...... IA United Community Bank ...... Milford ...... IA New Albin Savings Bank ...... New Albin ...... IA City State Bank ...... Norwalk ...... IA Northwestern Bank ...... Orange City ...... IA Clarke County State Bank ...... Osceola ...... IA Bank Iowa ...... Oskaloosa ...... IA Citizens Bank ...... Sac City ...... IA Sibley State Bank ...... Sibley ...... IA American State Bank ...... Sioux Center ...... IA Solon State Bank ...... Solon ...... IA Northwest Bank ...... Spencer ...... IA Randall-Story State Bank ...... Story City ...... IA First State Bank ...... Sumner ...... IA Veridian Credit Union ...... Waterloo ...... IA Webster City Federal Savings Bank ...... Webster City ...... IA Community State Bank ...... West Branch ...... IA West Liberty State Bank ...... West Liberty ...... IA Citizens State Bank ...... Wyoming ...... IA Farmers State Bank of Adams ...... Adams ...... MN Bremer Bank, National Association ...... Alexandria ...... MN Viking Savings Association, F.A...... Alexandria ...... MN State Bank of Aurora ...... Aurora ...... MN Northern National Bank ...... Baxter ...... MN RiverWood Bank ...... Baxter ...... MN State Bank of Bellingham ...... Bellingham ...... MN Star Bank ...... Bertha ...... MN First State Bank of Bigfork ...... Bigfork ...... MN Farmers and Merchants State Bank of Blooming Prairie ...... Blooming Prairie ...... MN First Bank Blue Earth ...... Blue Earth ...... MN Brainerd S&LA, A Federal Association ...... Brainerd ...... MN The First National Bank of Deerwood ...... Deerwood ...... MN State Bank in Eden Valley ...... Eden Valley ...... MN Bank Midwest ...... Fairmont ...... MN State Bank of Faribault ...... Faribault ...... MN Citizens B&TC ...... Hutchinson ...... MN TruStar Federal Credit Union ...... International Falls ...... MN State Bank of Kimball ...... Kimball ...... MN Lake Elmo Bank ...... Lake Elmo ...... MN

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First National Bank of Le Center ...... Le Center ...... MN First State Bank of Le Center ...... Le Center ...... MN First State Bank MN ...... LeRoy ...... MN Home Savings of America ...... Little Falls ...... MN First Farmers & Merchants National Bank ...... Luverne ...... MN Central MN Federal Credit Union ...... Melrose ...... MN First National Bank of Menahga & Sebeka ...... Menahga ...... MN Prairie Sun Bank ...... Milan ...... MN TCF National Bank ...... Minneapolis ...... MN First Minnesota Bank ...... Minnetoka ...... MN Peoples National Bank of Mora ...... Mora ...... MN Community National Bank ...... North Branch ...... MN The First National Bank of Osakis ...... Osakis ...... MN Northwoods Bank of Minnesota ...... Park Rapids ...... MN Horizon Bank ...... Pine City ...... MN The First National Bank of Plainview ...... Plainview ...... MN Prior Lake State Bank ...... Prior Lake ...... MN Minnwest Bank, M.V...... Redwood Falls ...... MN Think Mutual Bank ...... Rochester ...... MN First Independent Bank ...... Russell ...... MN Citizens Independent Bank ...... St. Louis Park ...... MN Highland Bank ...... St. Michael ...... MN First National Bank Minnesota ...... St. Peter ...... MN State Bank of Tower ...... Tower ...... MN Minnwest Bank South ...... Tracy ...... MN Queen City Federal Savings Bank ...... Virginia ...... MN Security State Bank of Wanamingo ...... Wanamingo ...... MN Belgrade State Bank ...... Belgrade ...... MO Ozark Mountain Bank ...... Branson ...... MO O’Bannon Banking Company ...... Buffalo ...... MO First National Bank ...... Camdenton ...... MO Missouri Federal Savings Bank ...... Cameron ...... MO Horizon State Bank ...... Cameron ...... MO Canton State Bank ...... Canton ...... MO Bank 21 ...... Carrollton ...... MO Southwest Missouri Bank ...... Carthage ...... MO Mizzou Credit Union ...... Columbia ...... MO State Bank of Missouri ...... Concordia ...... MO Security Bank of the Ozarks ...... Eminence ...... MO Rockwood Bank ...... Eureka ...... MO North American Savings Bank, F.S.B...... Grandview ...... MO F&M Bank & Trust Company ...... Hannibal ...... MO Allen Bank & Trust Company ...... Harrisonville ...... MO First Bank ...... Hazelwood ...... MO Blue Ridge Bank & Trust Company ...... Independence ...... MO Jonesburg State Bank ...... Jonesburg ...... MO Missouri Bank & Trust Company ...... Kansas City ...... MO Sunset Life Insurance Company of America ...... Kansas City ...... MO First Federal Bank, F.S.B...... Kansas City ...... MO KCB Bank ...... Kearney ...... MO Metcalf Bank ...... Lee’s Summit ...... MO Clay County Savings Bank ...... Liberty ...... MO Bank Liberty ...... Liberty ...... MO First Home Savings Bank ...... Mountain Grove ...... MO Boulevard Bank ...... Neosho ...... MO Bank of New Madrid ...... New Madrid ...... MO Home S&LA of Norborne, F.A...... Norborne ...... MO Ozark Bank ...... Ozark ...... MO Southern Missouri Bank & Trust Company ...... Poplar Bluff ...... MO Central Federal Savings & Loan Association of Rolla ...... Rolla ...... MO New Frontier Bank ...... Saint Charles ...... MO Progressive Ozark Bank, FSB ...... Salem ...... MO Security Bank & Trust Company ...... Scott City ...... MO Community State Bank ...... Shelbina ...... MO Montgomery Bank, N.A...... Sikeston ...... MO Guaranty Bank ...... Springfield ...... MO Bremen Bank and Trust Company ...... St. Louis ...... MO Southern Commercial Bank ...... St. Louis ...... MO Lindell Bank & Trust Company ...... St. Louis ...... MO Community Bank, NA ...... Summersville ...... MO Peoples Bank & Trust Company ...... Troy ...... MO Bank of Urbana ...... Urbana ...... MO The Missouri Bank ...... Warrenton ...... MO Security Bank of Pulaski County ...... Waynesville ...... MO FMB Bank ...... Wright City ...... MO The First State Bank of North Dakota ...... Arthur ...... ND

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Starion Financial ...... Bismarck ...... ND The Ramsey National Bank & Trust Company of Devils Lake ...... Devils Lake ...... ND American Bank Center ...... Dickinson ...... ND Security State Bank ...... Dunseith ...... ND Alerus Financial, N.A...... Grand Forks ...... ND Bank Forward ...... Hannaford ...... ND National Bank of Harvey ...... Harvey ...... ND The Goose River Bank ...... Mayville ...... ND The First State Bank of Munich ...... Munich ...... ND Liberty State Bank ...... Powers Lake ...... ND Dacotah Bank ...... Aberdeen ...... SD First Federal Bank, A Federal Savings Bank ...... Beresford ...... SD First Savings Bank ...... Beresford ...... SD First Bank & Trust ...... Brookings ...... SD Bryant State Bank ...... Bryant ...... SD Dakota Heritage State Bank ...... Chancellor ...... SD Valley Bank NA ...... Elk Point ...... SD Reliabank Dakota ...... Estelline ...... SD Campbell County Bank, Inc...... Herreid ...... SD Plains Commerce Bank ...... Hoven ...... SD Quoin Financial Bank ...... Miller ...... SD CorTrust Bank, National Association ...... Mitchell ...... SD American State Bank ...... Oldham ...... SD American State Bank of Pierre ...... Pierre ...... SD Farmers and Merchants State Bank ...... Plankinton ...... SD First Western Federal Savings Bank ...... Rapid City ...... SD First Premier Bank ...... Sioux Falls ...... SD Midland National Life Insurance Company ...... Sioux Falls ...... SD The First Western Bank Sturgis ...... Sturgis ...... SD Commercial State Bank ...... Wagner ...... SD The First Western Bank ...... Wall ...... SD Principal Mortgage Reinsurance Company ...... Burlington ...... VT

Federal Home Loan Bank of Dallas—District 9

Elk Horn Bank & Trust Company ...... Arkadelphia ...... AR FNBC ...... Ash Flat ...... AR Heartland Community Bank ...... Camden ...... AR Corning Savings and Loan Association ...... Corning ...... AR Merchants and Farmers Bank ...... Dumas ...... AR Planters & Merchants Bank ...... Gillett ...... AR Calhoun County Bank ...... Hampton ...... AR Community First Bank ...... Harrison ...... AR First Arkansas Bank & Trust ...... Jacksonville ...... AR Pulaski Bank and Trust Company ...... Jonesboro ...... AR One Bank & Trust ...... Little Rock ...... AR Arkansas Bankers’ Bank ...... Little Rock ...... AR Farmers Bank & Trust Company ...... Magnolia ...... AR Union Bank and Trust Company ...... Monticello ...... AR Diamond Bank ...... Murfreesboro ...... AR Priority Bank ...... Ozark ...... AR First National Bank ...... Paragould ...... AR Bank of Rogers ...... Rogers ...... AR United Bank ...... Springdale ...... AR The Bank of Star City ...... Star City ...... AR Farmers & Merchants Bank ...... Stuttgart ...... AR Abbeville Building & Loan, a State Chartered Savings Bank ...... Abbeville ...... LA First National Bank USA ...... Boutte ...... LA Community Trust Bank ...... Choudrant ...... LA Citizens Progressive Bank ...... Columbia ...... LA Statewide Bank ...... Covington ...... LA Beauregard Federal Savings Bank ...... DeRidder ...... LA United Community Bank ...... Gonzales ...... LA Central Progressive Bank ...... Lacombe ...... LA Home Bank ...... Lafayette ...... LA First Federal Bank of Louisiana ...... Lake Charles ...... LA The Union Bank ...... Marksville ...... LA Bank of New Orleans ...... Metairie ...... LA MVL Bank ...... Minden ...... LA Iberia Bank ...... New Iberia ...... LA Fidelity Homestead Savings Bank ...... New Orleans ...... LA Fifth District Savings Bank ...... New Orleans ...... LA Dryades Savings Bank, FSB ...... New Orleans ...... LA Crescent Bank & Trust ...... New Orleans ...... LA Union Savings and Loan Association ...... New Orleans ...... LA First Financial Bank & Trust Company ...... Plaquemine ...... LA

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Plaquemine Bank & Trust Company ...... Plaquemine ...... LA Citizens Bank & Trust Company ...... Plaquemine ...... LA Rayne Building and Loan Association ...... Rayne ...... LA Citizens Bank and Trust Company ...... Springhill ...... LA Bank of Zachary ...... Zachary ...... LA Magnolia State Bank ...... Bay Springs ...... MS First Bank & Trust of MS ...... Biloxi ...... MS State Bank & Trust Company ...... Brookhaven ...... MS BankFirst Financial Services ...... Columbus ...... MS Grand Bank for Savings, F.S.B...... Hattiesburg ...... MS The First, A National Banking Association ...... Hattiesburg ...... MS Trustmark National Bank ...... Jackson ...... MS OmniBank ...... Jackson ...... MS Bank of New Albany ...... New Albany ...... MS Bank of Okolona ...... Okolona ...... MS First Federal Savings & Loan ...... Pascagoula ...... MS First National Bank of Pontotoc ...... Pontotoc ...... MS Bank of Yazoo City ...... Yazoo City ...... MS Bank 34 ...... Alamogordo ...... NM Union Savings Bank ...... Albuquerque ...... NM Charter Bank ...... Albuquerque ...... NM 1st National Bank ...... Artesia ...... NM The First National Bank of New Mexico ...... Clayton ...... NM Western Bank of Clovis ...... Clovis ...... NM Citizens Bank of Las Cruces ...... Las Cruces ...... NM Community 1st Bank Las Vegas ...... Las Vegas ...... NM The Bank of Las Vegas ...... Las Vegas ...... NM Century Bank ...... Santa Fe ...... NM Firstbank Southwest, National Association ...... Amarillo ...... TX Happy State Bank ...... Amarillo ...... TX Southwest Securities Bank, FSB ...... Arlington ...... TX Affiliated Bank, FSB ...... Arlington ...... TX Amplify Federal Credit Union ...... Austin ...... TX The First National Bank of Beeville ...... Beeville ...... TX The Brenham National Bank ...... Brenham ...... TX Texas Bank ...... Brownwood ...... TX Shelby Savings Bank, ssb ...... Center ...... TX Chappell Hill Bank ...... Chappell Hill ...... TX The First National Bank of Chillicothe ...... Chillicothe ...... TX First Bank of West Texas ...... Coahoma ...... TX The First State Bank ...... Columbus ...... TX First Bank of Conroe, N.A...... Conroe ...... TX Charter Bank Northwest ...... Corpus Christi ...... TX Meridian Bank Texas ...... Corpus Christi ...... TX First Security State Bank ...... Cranfills Gap ...... TX Citizens National Bank ...... Crockett ...... TX First National Bank of Crockett ...... Crockett ...... TX TrustTexas Bank, SSB ...... Cuero ...... TX Dalhart Federal Savings and Loan Association ...... Dalhart ...... TX First State Bank ...... Dalhart ...... TX First National Bank in Dalhart ...... Dalhart ...... TX Inwood National Bank ...... Dallas ...... TX Preston National Bank ...... Dallas ...... TX Prosperity Bank ...... El Campo ...... TX First Command Bank ...... Fort Worth ...... TX Colonial Savings, F.A...... Fort Worth ...... TX National Bank ...... Gatesville ...... TX Gladewater National Bank ...... Gladewater ...... TX Henderson Federal Savings Bank ...... Henderson ...... TX Franklin Bank, SSB ...... Houston ...... TX Houston Community Bank, N.A...... Houston ...... TX Justin State Bank ...... Justin ...... TX Fayette Savings Bank, ssb ...... La Grange ...... TX National Bank & Trust ...... La Grange ...... TX Falcon National Bank ...... Laredo ...... TX Commerce Bank ...... Laredo ...... TX Texas Bank and Trust ...... Longview ...... TX Spring Hill State Bank ...... Longview ...... TX East Texas Professional Credit Union ...... Longview ...... TX First State Bank ...... Louise ...... TX Lubbock National Bank ...... Lubbock ...... TX First Bank & Trust Company ...... Lubbock ...... TX Angelina Savings Bank, FSB ...... Lufkin ...... TX First National Bank of Mount Vernon ...... Mount Vernon ...... TX Guaranty Bond Bank ...... Mt. Pleasant ...... TX First National Bank in Munday ...... Munday ...... TX

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The Morris County National Bank ...... Naples ...... TX First Federal Community Bank ...... Paris ...... TX Peoples Bank ...... Paris ...... TX Gulf Coast Educators FCU ...... Pasadena ...... TX PointBank ...... Pilot Point ...... TX Pilgrim Bank ...... Pittsburg ...... TX Wood County National Bank ...... Quitman ...... TX Woodforest Bank ...... Refugio ...... TX Robert Lee State Bank ...... Robert Lee ...... TX First Community Bank San Antonio, NA ...... San Antonio ...... TX Citizens State Bank ...... Sealy ...... TX Alliance Bank ...... Sulphur Springs ...... TX First State Bank Central Texas ...... Temple ...... TX American National Bank of Texas ...... Terrell ...... TX Citizens 1st Bank ...... Tyler ...... TX First Federal Bank Texas ...... Tyler ...... TX The First National Bank of Weatherford ...... Weatherford ...... TX Hill Bank & Trust Company ...... Weimar ...... TX American National Bank ...... Wichita Falls ...... TX

Federal Home Loan Bank of Topeka—District 10

San Luis Valley Federal Bank ...... Alamosa ...... CO Valley Bank & Trust Company ...... Brighton ...... CO Collegiate Peaks Bank ...... Buena Vista ...... CO Farmers State Bank of Calhan ...... Calhan ...... CO Castle Rock Bank ...... Castle Rock ...... CO Colorado Capital Bank ...... Castle Rock ...... CO FirstBank of Colorado Springs ...... Colorado Springs ...... CO Pikes Peak National Bank ...... Colorado Springs ...... CO Peoples National Bank ...... Colorado Springs ...... CO Vectra Bank Colorado ...... Denver ...... CO First National Bank of Durango ...... Durango ...... CO High Plains Bank ...... Flagler ...... CO Rocky Mountain Bank and Trust ...... Florence ...... CO First National Bank ...... Fort Collins ...... CO Morgan Federal Bank ...... Fort Morgan ...... CO Home Loan State Bank ...... Grand Junction ...... CO Community Banks of Colorado ...... Greenwood Village ...... CO Colorado Federal Savings Bank ...... Greenwood Village ...... CO Gunnison Savings and Loan Association ...... Gunnison ...... CO First National Bank in Lamar ...... Lamar ...... CO Colorado East Bank & Trust ...... Lamar ...... CO Rio Grande Savings and Loan Association ...... Monte Vista ...... CO Montrose Bank ...... Montrose ...... CO The First National Bank of Ordway ...... Ordway ...... CO Paonia State Bank ...... Paonia ...... CO Southern Colorado NB ...... Pueblo ...... CO Yampa Valley Bank ...... Steamboat Springs ...... CO Century Savings & Loan Association ...... Trinidad ...... CO Park State Bank & Trust ...... Woodland Park ...... CO The First National Bank of Anthony ...... Anthony ...... KS New Century Bank ...... Belleville ...... KS Peoples Exchange Bank ...... Belleville ...... KS Guaranty State Bank & Trust Company ...... Beloit ...... KS State Bank of Burton ...... Burton ...... KS Caldwell State Bank in Caldwell ...... Caldwell ...... KS First National Bank in Cimarron ...... Cimarron ...... KS The Elk State Bank ...... Clyde ...... KS Flint Hills Bank ...... Eskridge ...... KS Citizens Bank NA ...... Fort Scott ...... KS Girard National Bank ...... Girard ...... KS Farmers Bank & Trust, N.A...... Great Bend ...... KS Golden Belt Bank, FSA ...... Hays ...... KS Citizens State Bank and Trust Company ...... Hiawatha ...... KS State Bank ...... Hoxie ...... KS Central Bank and Trust Company ...... Hutchinson ...... KS Central National Bank ...... Junction City ...... KS Argentine Federal Savings ...... Kansas City ...... KS Industrial State Bank ...... Kansas City ...... KS Inter-State FS&LA of Kansas City ...... Kansas City ...... KS Citizens Bank of Kansas, N.A...... Kingman ...... KS Kanza Bank ...... Kingman ...... KS First State Bank ...... Kiowa ...... KS Kearney County Bank ...... Lakin ...... KS The University National Bank ...... Lawrence ...... KS

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Mutual Savings Association, FSA ...... Leavenworth ...... KS Citizens Savings and Loan Association, FSB ...... Leavenworth ...... KS US Central FCU ...... Lenexa ...... KS The State Exchange Bank ...... Mankato ...... KS The Citizens State Bank ...... Moundridge ...... KS First Bank of Newton ...... Newton ...... KS Midland National Bank ...... Newton ...... KS First State Bank ...... Norton ...... KS Security Savings Bank, FSB ...... Olathe ...... KS First FS&LA of Olathe ...... Olathe ...... KS First Option Bank ...... Osawatomie ...... KS Bank of Blue Valley ...... Overland Park ...... KS Peabody State Bank ...... Peabody ...... KS The Plains State Bank ...... Plains ...... KS The Peoples Bank ...... Pratt ...... KS Valley State Bank ...... Roeland Park ...... KS The Roxbury Bank ...... Roxbury ...... KS First Bank Kansas ...... Salina ...... KS Stanley Bank ...... Stanley ...... KS Stockton National Bank ...... Stockton ...... KS Thunder Bank ...... Sylvan Grove ...... KS First National Bank ...... Syracuse ...... KS The Bank of Tescott ...... Tescott ...... KS Alliance Bank ...... Topeka ...... KS Heritage Bank ...... Topeka ...... KS Silver Lake Bank ...... Topeka ...... KS Capitol Federal Savings Bank ...... Topeka ...... KS Kendall State Bank ...... Valley Falls ...... KS FNB in Wellington ...... Wellington ...... KS The Bank of Commerce & Trust Company ...... Wellington ...... KS SNB Bank of Wichita, FSB ...... Wichita ...... KS Garden Plain State Bank ...... Wichita ...... KS Banker’s Bank of Kansas, NA ...... Wichita ...... KS Southwest NB of Wichita ...... Wichita ...... KS Commerce Bank, N.A...... Wichita ...... KS Western Heritage Credit Union ...... Alliance ...... NE Community Bank ...... Alma ...... NE Farmers & Merchants National Bank ...... Ashland ...... NE Auburn State Bank ...... Auburn ...... NE Bruning State Bank ...... Bruning ...... NE Butte State Bank ...... Butte ...... NE South Central State Bank ...... Campbell ...... NE Clarkson Bank ...... Clarkson ...... NE Nebraska Energy Federal Credit Union ...... Columbus ...... NE First National Bank & Trust Company ...... Columbus ...... NE American Interstate Bank ...... Elkhorn ...... NE Cedar Security Bank ...... Fordyce ...... NE Genoa National Bank ...... Genoa ...... NE Kearney FCU ...... Kearney ...... NE Pinnacle Bank ...... Lincoln ...... NE TierOne Bank ...... Lincoln ...... NE Security Home Bank ...... Malmo ...... NE Arbor Bank ...... Nebraska City ...... NE The Nehawka Bank ...... Nehawka ...... NE Security National Bank of Omaha ...... Omaha ...... NE Enterprise Bank, NA ...... Omaha ...... NE First Comp Insurance Company ...... Omaha ...... NE Platte Valley National Bank ...... Scottsbluff ...... NE First National Bank ...... Sidney ...... NE Siouxland FCU ...... South Sioux City ...... NE Horizon Bank ...... Waverly ...... NE FNB of Wayne ...... Wayne ...... NE NBC Oklahoma ...... Altus ...... OK Anadarko Bank and Trust Company ...... Anadarko ...... OK First National Bank & Trust ...... Ardmore ...... OK Citizens Security Bank & Trust Company ...... Bixby ...... OK Community Bank ...... Bristow ...... OK Chickasha Bank and Trust Company ...... Chickasha ...... OK First Bank & Trust Company ...... Clinton ...... OK Oklahoma Bank & Trust Company ...... Clinton ...... OK American Bank of Oklahoma ...... Collinsville ...... OK First Texoma National Bank ...... Durant ...... OK Citizens Bank of Edmond ...... Edmond ...... OK First National Bank of Elk City ...... Elk City ...... OK Fort Sill NB ...... Fort Sill ...... OK Oklahoma State Bank ...... Guthrie ...... OK

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Bank of the Panhandle ...... Guymon ...... OK Legacy Bank ...... Hinton ...... OK McCurtain County National Bank ...... Idabel ...... OK The First State Bank ...... Keyes ...... OK City National Bank & Trust Company ...... Lawton ...... OK First National Bank in Marlow ...... Marlow ...... OK Republic Bank & Trust ...... Norman ...... OK Community National Bank of Okarche ...... Okarche ...... OK American Reserve Life Insurance Company ...... Oklahoma City ...... OK BancFirst ...... Oklahoma City ...... OK The Bankers Bank ...... Oklahoma City ...... OK The Okmulgee Savings and Loan Association ...... Okmulgee ...... OK Lakeside State Bank ...... Oologah ...... OK Bank of the Lakes, N.A...... Owasso ...... OK First National Bank of Oklahoma ...... Ponca City ...... OK First State Bank of Porter ...... Porter ...... OK First American Bank ...... Purcell ...... OK The Farmers State Bank ...... Quinton ...... OK First National Bank & Trust Company ...... Shawnee ...... OK Community Bank of Arbuckles ...... Sulphur ...... OK ONB Bank and Trust Company ...... Tulsa ...... OK Valley National Bank ...... Tulsa ...... OK Tulsa Teacher Credit Union ...... Tulsa ...... OK Triad Bank, N.A...... Tulsa ...... OK ONB Bank & Trust Company ...... Tulsa ...... OK Summit Bank ...... Tulsa ...... OK The First National Bank of Vinita ...... Vinita ...... OK Security State Bank Wewoka ...... Wewoka ...... OK Plarte Valley National Bank ...... Torrington ...... WY

Federal Home Loan Bank of San Francisco—District 11

Copper Star Bank ...... Scottsdale ...... AZ Evertrust Bank ...... City of Industry ...... CA Pacific Premier Bank ...... Costa Mesa ...... CA Xceed Financial Credit Union ...... El Segundo ...... CA First Commerce Bank ...... Encino ...... CA Fremont Bank ...... Fremont ...... CA Fullerton Community Bank ...... Fullerton ...... CA American First Credit Union ...... La Habra ...... CA Silvergate Bank ...... La Jolla ...... CA Borrego Springs Bank, N.A...... La Mesa ...... CA International City Bank ...... Long Beach ...... CA Preferred Bank ...... Los Angeles ...... CA Broadway Federal Bank, f.s.b...... Los Angeles ...... CA California National Bank ...... Los Angeles ...... CA National Bank of California ...... Los Angeles ...... CA Monterey County Bank ...... Monterey ...... CA Oak Valley Community Bank ...... Oakdale ...... CA Summit Bank ...... Oakland ...... CA Metropolitan Bank ...... Oakland ...... CA Palm Desert National Bank ...... Palm Desert ...... CA Malaga Bank SSB ...... Palos Verdes Estates ...... CA Community Bank ...... Pasadena ...... CA El Dorado Savings Bank ...... Placerville ...... CA Sterlent Credit Union ...... Pleasanton ...... CA PFF Bank & Trust ...... Pomona ...... CA North Valley Bank ...... Redding ...... CA The Golden 1 Credit Union ...... Sacramento ...... CA East West Bank ...... San Marino ...... CA First FS&LA of San Rafael ...... San Rafael ...... CA First Federal Bank of California, F.S.B...... Santa Monica ...... CA Summit State Bank ...... Santa Rosa ...... CA Mission Oaks National Bank ...... Temecula ...... CA Temecula Valley Bank, NA ...... Temecula ...... CA Sunwest Bank ...... Tustin ...... CA Travis CU ...... Vacaville ...... CA Desert Community Bank ...... Victorville ...... CA First Financial Credit Union ...... West Covina ...... CA Bank of America California, NA ...... Charlotte ...... NC Washington Mutual Bank, Inc...... Seattle ...... WA

Federal Home Loan Bank of Seattle—District 12

First National Bank Alaska ...... Anchorage ...... AK Northrim Bank ...... Anchorage ...... AK

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Mt. McKinley Bank ...... Fairbanks ...... AK Spirit of Alaska FCU ...... Fairbanks ...... AK BankPacific, Ltd...... Hagatna ...... GU Bank of Guam ...... Hagatna ...... GU Hawaii State Federal Credit Union ...... Honolulu ...... HI Finance Factors, Limited ...... Honolulu ...... HI American Savings Bank ...... Honolulu ...... HI Mountain West Bank ...... Coeur D’Alene ...... ID The Bank of Commerce ...... Idaho Falls ...... ID Ireland Bank ...... Malad City ...... ID First FSB of Twin Falls ...... Twin Falls ...... ID Wells Fargo Bank Northwest, N.A...... Minneapolis ...... MN United Banks, N.A...... Absarokee ...... MT First Security Bank of Bozeman ...... Bozeman ...... MT Big Sky Western Bank ...... Bozeman ...... MT Pioneer FS&LA ...... Dillon ...... MT Ravalli County Bank ...... Hamilton ...... MT American Federal Savings Bank ...... Helena ...... MT Glacier Bank ...... Kalispell ...... MT First Security Bank of Malta ...... Malta ...... MT Stockman Bank of Montana ...... Miles City ...... MT Glacier Bank of Whitefish ...... Whitefish ...... MT Bank of Astoria ...... Astoria ...... OR Pacific Continental Bank ...... Eugene ...... OR First FS&LA of McMinnville ...... McMinnville ...... OR Albina Community Bank ...... Portland ...... OR Community First Bank ...... Prineville ...... OR Columbia River Bank ...... The Dalles ...... OR Bank of American Fork ...... American Fork ...... UT Home Savings Bank ...... Salt Lake City ...... UT TransWest Credit Union ...... Salt Lake City ...... UT Horizon Bank ...... Bellingham ...... WA Cascade Bank ...... Everett ...... WA Bank of Fairfield ...... Fairfield ...... WA Timberland Bank ...... Hoquiam ...... WA Kitsap Bank ...... Port Orchard ...... WA Valley Bank ...... Puyallup ...... WA Raymond Federal Bank ...... Raymond ...... WA First Savings Bank of Northwest ...... Renton ...... WA Washington First International Bank ...... Seattle ...... WA Washington Federal Savings ...... Seattle ...... WA Evergreen Bank ...... Seattle ...... WA HomeStreet Bank ...... Seattle ...... WA Sterling Savings Bank ...... Spokane ...... WA The Bank of Star Valley ...... Afton ...... WY Buffalo Federal Savings Bank ...... Buffalo ...... WY Hilltop National Bank ...... Casper ...... WY Big Horn Federal Savings Bank ...... Greybull ...... WY Oregon Trail Bank ...... Guernsey ...... WY Pinnacle Bank—Wyoming ...... Torrington ...... WY

II. Public Comments quarter review cycle must be delivered § 225.41 of the Board’s Regulation Y (12 to the FHFA on or before the November CFR 225.41) to acquire a bank or bank To encourage the submission of 21, 2008 deadline for submission of holding company. The factors that are public comments on the community Community Support Statements. considered in acting on the notices are support performance of Bank members, set forth in paragraph 7 of the Act (12 on or before October 24, 2008, each Dated: October 3, 2008. Janice A. Kaye, U.S.C. 1817(j)(7)). Bank will notify its Advisory Council The notices are available for and nonprofit housing developers, Associate General Counsel. immediate inspection at the Federal community groups, and other interested [FR Doc. E8–24719 Filed 10–14–08; 4:15 pm] Reserve Bank indicated. The notices parties in its district of the members BILLING CODE 8070–01–P also will be available for inspection at selected for community support review the office of the Board of Governors. in the 2008–09 third quarter review Interested persons may express their cycle. 12 CFR 944.2(b)(2)(ii). In views in writing to the Reserve Bank FEDERAL RESERVE SYSTEM reviewing a member for community indicated for that notice or to the offices support compliance, the FHFA will Change in Bank Control Notices; of the Board of Governors. Comments consider any public comments it has Acquisition of Shares of Bank or Bank must be received not later than received concerning the member. 12 Holding Companies November 4, 2008. CFR 944.2(d). To ensure consideration A. Federal Reserve Bank of St. Louis by the FHFA, comments concerning the The notificants listed below have (Glenda Wilson, Community Affairs community support performance of applied under the Change in Bank Officer) P.O. Box 442, St. Louis, members selected for the 2008–09 third Control Act (12 U.S.C. 1817(j)) and Missouri 63166–2034:

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1. Douglas and Theresa Kelly, Ray E. Governors not later than November 14, Peachtree Street, NE., Atlanta, Georgia Cahalan Family Trust with Theresa 2008. 30309: Kelly and Jacquline Niedergerke as co– A. Federal Reserve Bank of 1. Regent Bancorp, Inc., Davie, trustees, all of Kirksville, Missouri; Gary Richmond (A. Linwood Gill, III, Vice Florida, to acquire 100 percent of the Kelly, Aspen, Colorado; and William President) 701 East Byrd Street, voting shares of Regent Bank, and Kathleen Moffett, Golden, Colorado, Richmond, Virginia 23261–4528: Greenville, South Carolina (in as a group acting in concert to retain 1. Coastal Carolina Bancshares, Inc., organization), and thereby indirectly control of Kirksville, Bancorp, Inc., and to become a bank holding company by engage in operating a savings thereby indirectly retain control of acquiring 100 percent of the voting association, pursuant to section American Trust Bank, both of Kirksville, shares of Coastal Carolina National 225.28(b)(4)(ii) of Regulation Y. Missouri. Bank, both of Myrtle Beach, South Comments regarding this application Board of Governors of the Federal Reserve Carolina (in organization). must be received not later than System, October 15, 2008. Board of Governors of the Federal Reserve November 14, 2008. Robert deV. Frierson, System, October 15, 2008. B. Federal Reserve Bank of Chicago Deputy Secretary of the Board. Robert deV. Frierson, (Burl Thornton, Assistant Vice [FR Doc. E8–24854 Filed 10–17–08; 8:45 am] Deputy Secretary of the Board. President) 230 South LaSalle Street, BILLING CODE 6210–01–S [FR Doc. E8–24853 Filed 10–17–08; 8:45 am] Chicago, Illinois 60690–1414: BILLING CODE 6210–01–S 1. Broadway Bancorp, Inc., Chicago, Illinois, to engage de novo in extending FEDERAL RESERVE SYSTEM credit and servicing loans, pursuant to FEDERAL RESERVE SYSTEM section 225.28(b)(1) of Regulation Y. Formations of, Acquisitions by, and Mergers of Bank Holding Companies Notice of Proposals To Engage in Board of Governors of the Federal Reserve System, October 15, 2008. Permissible Nonbanking Activities or The companies listed in this notice To Acquire Companies That Are Robert deV. Frierson, have applied to the Board for approval, Engaged in Permissible Nonbanking Deputy Secretary of the Board. pursuant to the Bank Holding Company Activities [FR Doc. E8–24852 Filed 10–17–08; 8:45 am] Act of 1956 (12 U.S.C. 1841 et seq.) BILLING CODE 6210–01–S (BHC Act), Regulation Y (12 CFR Part The companies listed in this notice 225), and all other applicable statutes have given notice under section 4 of the and regulations to become a bank Bank Holding Company Act (12 U.S.C. holding company and/or to acquire the 1843) (BHC Act) and Regulation Y (12 FEDERAL TRADE COMMISSION assets or the ownership of, control of, or CFR Part 225) to engage de novo, or to the power to vote shares of a bank or acquire or control voting securities or Granting of Request for Early bank holding company and all of the assets of a company, including the Termination of the Waiting Period banks and nonbanking companies companies listed below, that engages Under the Premerger Notification owned by the bank holding company, either directly or through a subsidiary or Rules including the companies listed below. other company, in a nonbanking activity The applications listed below, as well that is listed in § 225.28 of Regulation Y Section 7A of the Clayton Act, 15 as other related filings required by the (12 CFR 225.28) or that the Board has U.S.C. 18a, as added by Title II of the Board, are available for immediate determined by Order to be closely Hart-Scott Rodino Antitrust inspection at the Federal Reserve Bank related to banking and permissible for Improvements Act of 1976, requires indicated. The applications also will be bank holding companies. Unless persons contemplating certain mergers available for inspection at the offices of otherwise noted, these activities will be or acquisitions to give the Federal Trade the Board of Governors. Interested conducted throughout the United States. Commission and the Assistant Attorney persons may express their views in Each notice is available for inspection General advance notice and to wait writing on the standards enumerated in at the Federal Reserve Bank indicated. designated periods before the BHC Act (12 U.S.C. 1842(c)). If the The notice also will be available for consummation of such plans. Section proposal also involves the acquisition of inspection at the offices of the Board of 7A(b)(2) of the Act permits the agencies, a nonbanking company, the review also Governors. Interested persons may in individual cases, to terminate this includes whether the acquisition of the express their views in writing on the waiting period prior to its expiration nonbanking company complies with the question whether the proposal complies and requires that notice of this action be standards in section 4 of the BHC Act with the standards of section 4 of the published in the Federal Register. (12 U.S.C. 1843). Unless otherwise BHC Act. Additional information on all The following transactions were noted, nonbanking activities will be bank holding companies may be granted early termination of the waiting conducted throughout the United States. obtained from the National Information period provided by law and the Additional information on all bank Center website at www.ffiec.gov/nic/. premerger notification rules. The grants holding companies may be obtained Unless otherwise noted, comments were made by the Federal Trade from the National Information Center regarding the applications must be Commission and the Assistant Attorney website at www.ffiec.gov/nic/. received at the Reserve Bank indicated General for the Antitrust Division of the Unless otherwise noted, comments or the offices of the Board of Governors Department of Justice. Neither agency regarding each of these applications not later than November 4, 2008. intends to take any action with respect must be received at the Reserve Bank A. Federal Reserve Bank of Atlanta to these proposed acquisitions during indicated or the offices of the Board of (Steve Foley, Vice President) 1000 the applicable waiting period. mstockstill on PROD1PC66 with NOTICES Federal Register / Vol. 73, No. 203 / Monday, October 20, 2008 / Notices 62295

Trans No. Acquiring Acquired Entities

Transactions Granted Early Termination—06/16/2008

20081021 ...... CME Group Inc...... NYMEX Holdings, Inc...... NYMEX Holdings, Inc. 20081281 ...... The Hearst Family Trust ...... NewCo, LLC ...... NewCo, LLC. 20081312 ...... JPMorgan Chase & Co...... Caxton-Iseman (NAHP), L.P. Caxton-Iseman (NAHP), L.P. 20081315 ...... First BanCorp ...... CG Investor, LLC ...... DaimlerChrysler Financial Services Car- ibbean, LLC.

Transactions Granted Early Termination—06/17/2008

20081274 ...... Illinois Tool Works, Inc...... Coller International Partners IV–D, L.P QSA Global, Inc. 20081275 ...... ING Groep N.V...... State Street Corporation ...... CitiStreet LLC. 20081276 ...... ING Groep N.V...... Citigroup Inc...... CitiStreet LLC. 20081310 ...... Bain Capital X, L.P...... American Capital Strategies, Ltd...... Contec Holdings, Ltd. 20081313 ...... The Goldman Sachs Group, Inc...... Bank of America Corporation ...... CIVC Partners IIA, L.P.

Transactions Granted Early Termination—06/18/2008

20081308 ...... Sageview Capital Master, L.P...... EverBank Financial Corp ...... EverBank Financial Corp. 20081327 ...... Providence Equity Partners V L.P...... Education Management Corporation ..... Education Management Corporation.

Transactions Granted Early Termination—06/20/2008

20081306 ...... Lehman Brothers Partners IV L.P...... Angelica Corporation ...... Angelica Corporation. 20081317 ...... S.A.C. Private Equity Investors, L.P...... Koninklijke Philips Electronics N.V...... MedQuist Inc. 20081319 ...... Carousel Capital Partners Ill L.P...... Xinhua Finance Limited ...... Mergent, Inc. 20081320 ...... Great Wisconsin Credit Union ...... Summit Credit Union ...... Summit Credit Union. 20081324 ...... Leeds Equity Partners IV, L.P...... Education Management Corporation ..... Education Management Corporation. 20081326 ...... Newhouse Broadcasting Corporation .... Discovery Communications, Inc...... Discovery Communications, Inc. 20081328 ...... GS Capital Partners V, L.P...... Education Management Corporation ..... Education Management Corporation. 20081332 ...... Emerson Electric Co...... General Equipment and Manufacturing General Equipment and Manufacturing Company, Inc. Company, Inc. 20081339 ...... Wellspring Capital Partners IV, L.P...... NC Limited Partner Holdings, LLC ...... Cleaver-Holdings, Inc. 20081344 ...... Johnson Controls, Inc...... Julie Nguyen Brown ...... Plastic Engineered Products, Inc. 20081348 ...... Jones Lang LaSalle Incorporated ...... Staubach Holdings, Inc...... Staubach Holdings, Inc. 20081349 ...... TP Group 2007–B, L.P...... Walter S. Lutz, Jr...... Signicast Corporation.

Transactions Granted Early Termination—06/23/2008

20081242 ...... Cablevision Systems Corporation ...... NMG Company, LLC ...... NMG Company, LLC. 20081279 ...... SPO Partners II, L.P...... Reilly Family Limited Partnership ...... Lamar Advertising Company.

Transactions Granted Early Termination—06/24/2008

20081272 ...... Ashland Inc...... Air Products and Chemicals, Inc...... Air Products and Chemicals, Inc. 20081298 ...... USRG Power & Biofuels Fund II, L.P .... Renewable Energy Group, Inc...... Renewable Energy Group, Inc. 20081307 ...... XTO Energy Inc...... Timothy C. Headington ...... Headington Oil Company LLC. Nesson Gathering System, LLC. 20081316 ...... Macquarie Group Limited ...... Express Energy Services Holding, LP ... Express Energy Services Holding, LP. 20081323 ...... Hologic, Inc...... Third Wave Technologies, Inc...... Third Wave Technologies, Inc. 20081330 ...... Phillip Ean Cohen ...... Value Financial Services, Inc...... Value Financial Services, Inc. 20081335 ...... Sierra Pacific Resources ...... Reliant Energy, Inc...... Reliant Energy Asset Management, LLC. Reliant Energy Wholesale Generation, LLC. 20081336 ...... Societe Cooperative Agricole Cham- Archer-Daniels-Midland Company ...... ADM Malting, LLC. pagne Cereales. 20081361 ...... Olympus Growth Fund IV, L.P ...... Ernest Edward & Ann Zinke ...... Ann’s House of Nuts, Inc.

Transactions Granted Early Termination—06/25/2008

20081305 ...... GulfMark Offshore, Inc...... Rigdon Marine Holdings, L.L.C...... Rigdon Marine Corporation. 20081342 ...... TPF II, L.P...... Dynegy Inc...... Rolling Hills Generating, LLC. 20081352 ...... Burger King Holdings, Inc...... Michael Simmonds and Linda Simmonds Restaurant Management, Simmonds. Inc. SRF Holdings L.L.C. SR of Iowa, L.L.C.

Transactions Granted Early Termination—06/26/2008

20080269 ...... Banner Health ...... Sun Health Corporation ...... Sun Health Corporation. Sun Health Research Institute. 20081333 ...... FTI Consulting, Inc...... TOP–2005, LLC ...... Attenex Corporation.

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Trans No. Acquiring Acquired Entities

Transactions Granted Early Termination—06/27/2008

20081257 ...... Comtech Telecommunications Corp...... Radyne Corporation ...... Radyne Corporation.

FOR FURTHER INFORMATION CONTACT: annually the most important areas of Nominations should be typewritten. Sandra M. Peay, Contact Representative, government and non-government The following information should be or Renee Hallman, Contact cooperation that should be considered included in the package of material Representative, Federal Trade in implementing Sections 2102 and submitted for each individual being Commission, Premerger Notification 2103 of the PHS Act. nominated for consideration: (1) A letter Office, Bureau of Competition, Room H– DATES: Nominations for membership on of nomination that clearly states the 303, Washington, DC 20580, (202) 326– the Committee must be received no later name and affiliation of the nominee, the 3100. than 5 p.m. EDT on November 21, 2008, basis for the nomination (i.e. , specific By Direction of the Commission. at the address below. attributes which qualify the nominee for service in this capacity), and a statement Donald S. Clark, ADDRESSES: All nominations should be that the nominee is willing to serve as Secretary. mailed or delivered to: Bruce G. Gellin, a member of the Committee; (2) the MD, MPH, Executive Secretary, NVAC, [FR Doc. E8–24649 Filed 10–17–08; 8:45 am] nominator’s name, address and daytime Office of Public Health and Science, BILLING CODE 6750–01–M telephone number, and the home and/ Department of Health and Human or work address, telephone number, and Services, 200 Independence Avenue, e-mail address of the individual being SW., Room 443–H, Hubert H. Humphrey DEPARTMENT OF HEALTH AND nominated; and (3) a current copy of the Building, Washington, DC 20201. HUMAN SERVICES nominee’s curriculum vitae. FOR FURTHER INFORMATION CONTACT: Ms. Applications cannot be submitted by National Vaccine Advisory Committee Andrea Krull, Public Health Advisor, facsimile. The names of Federal AGENCY: Department of Health and National Vaccine Program Office, employees should not be nominated for Human Services, Office of the Secretary, Department of Health and Human consideration of appointment to this Office of Public Health and Science. Services, 200 Independence Avenue, Committee. SW., Room 443–H, Hubert H. Humphrey ACTION: Notice. The Department makes every effort to Building, Washington, DC 20201; (202) ensure that the membership of HHS 690–5566; [email protected]. Federal advisory committees is fairly Authority: 42 U.S.C. 300aa–5, Section 2105 A copy of the Committee charter of the Public Health Service (PHS) Act, as balanced in terms of points of view amended. The Committee is governed by the which includes the Committee’s represented and the committee’s provisions of Public Law 92–463, as structure and functions as well as a list function. Every effort is made that a amended (5 U.S.C. Appendix 2), which sets of the current membership can be broad representation of geographic forth standards for the formation and use of obtained by contacting Ms. Krull or by areas, gender, ethnic and minority advisory committees. accessing the NVAC Web site at: groups, and the disabled are given SUMMARY: The National Vaccine www.hhs.gov/nvpo/nvac. consideration for membership on HHS Program Office (NVPO), a program SUPPLEMENTARY INFORMATION: Federal advisory committees. office within the Office of Public Health Committee Function, Qualifications, Appointment to this committee shall be and Science, DHHS, is soliciting and Information Required: As part of an made without discrimination on the nominations of qualified candidates to ongoing effort to enhance deliberations basis of age, race, ethnicity, gender, be considered for appointment as and discussions with the public on sexual orientation, disability, and members to the National Vaccine vaccine and immunization policy, cultural, religious, or socioeconomic Advisory Committee (NVAC). The nominations are being sought for status. activities of this Committee are interested individuals to serve on the The Standards of Ethical Conduct for governed by the Federal Advisory Committee. Individuals selected for Employees of the Executive Branch are Committee Act (FACA). appointment to the Committee will applicable to individuals who are Consistent with the National Vaccine serve as voting members. Public appointed as public members of Federal Plan, the Committee advises and makes members shall be selected from advisory committees. Individuals recommendations to the Assistant individuals who are engaged in vaccine appointed to serve as public members of Secretary for Health in his capacity as research or the manufacture of vaccines, Federal advisory committees are the Director of the National Vaccine or who are physicians, members of classified as special Government Program, on matters related to the parent organizations concerned with employees (SGEs). SGEs are Program’s responsibilities. Specifically, immunizations, representatives of state Government employees for purposes of the Committee studies and recommends or local health agencies or public health the conflict of interest laws. Therefore, ways to encourage the availability of an organizations. Representative members individuals appointed to serve as public adequate supply of safe and effective shall be selected from the vaccine members of NVAC are subject to an vaccination products in the United manufacturing industry who are ethics review. The ethics review is States, and recommends research engaged in vaccine research or the conducted to determine if the priorities and other measures to manufacture of vaccines. Anticipated individual has any interests and/or enhance the safety and efficacy of vacancies include both public and activities in the private sector that may vaccines. The Committee also advises representative member positions. conflict with performance of their the Assistant Secretary for Health in the Individuals selected for appointment to official duties as a member of the implementation of Sections 2102 and the Committee can be invited to serve Committee. Individuals appointed to 2103 of the PHS Act; and identifies terms of up to four years. serve as public members of the

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Committee will be required to disclose Secretary on other matters related to DEPARTMENT OF HEALTH AND information regarding financial public health emergency preparedness HUMAN SERVICES holdings, consultancies, and research and response. Administration for Children and grants and/or contracts. The NBSB will consider Families Dated: October 6, 2008. recommendations prepared by the Bruce Gellin, Disaster Mental Health Subcommittee. President’s Committee for People With Director, National Vaccine Program Office, The Subcommittee was established by Intellectual Disabilities; Notice of Executive Secretary, National Vaccine the NBSB to help fulfill the requirement Meeting Advisory Committee. of HSPD–21, paragraph 31, which [FR Doc. E8–24893 Filed 10–17–08; 8:45 am] directs the Secretary, U.S. Department AGENCY: President’s Committee for BILLING CODE 4150–44–P of Health and Human Services, to People with Intellectual Disabilities convene a committee of subject matter (PCPID). experts and, to submit to the Secretary ACTION: Notice of Quarterly Meeting. DEPARTMENT OF HEALTH AND of Health and Human Services HUMAN SERVICES recommendations for protecting, DATES: November 19, 2008, from 8:30 a.m. to 5 p.m. EST; and November 20, Meeting of the National Biodefense preserving, and restoring individual and 2008, from 8 a.m. to 9.a.m. The meeting Science Board community mental health in catastrophic health event settings, will be open to the public. AGENCY: Department of Health and including pre-event, intra-event, and ADDRESSES: The meeting will be held in Human Services, Office of the Secretary. post-event education, messaging, and Room 705A of the Hubert H. Humphrey ACTION: Notice. interventions. Building, 200 Independence Ave., SW., Washington, DC 20201. Individuals who SUMMARY: As stipulated by the Federal Additional topics will be considered would like to participate via conference Advisory Committee Act, the U.S. during the public meeting. A tentative call may do so by dialing 888–603– Department of Health and Human schedule will be made available on 6970, passcode: PCPID. Individuals who Services is hereby giving notice that the November 1, 2008 at the NBSB Web site, will need accommodations for a National Biodefense Science Board http://www.hhs.gov/aspr/omsph/nbsb. disability in order to attend the meeting (NBSB) will be holding a public This agenda is subject to change as (e.g., sign language interpreting services, meeting. The meeting is open to the priorities dictate. assistive listening devices, materials in public. Any member of the public interested alternative formats such as large print or DATES: The NBSB will hold a public in presenting oral comments at the Braille) should notify MJ Karimi via e- meeting on November 18, 2008 from meeting may notify the Contact person mail at 8:30 a.m. to 5 p.m. EST and on listed on this notice by November 10, [email protected], or via November 19, 2008 from 8:30 a.m. to 2008. Interested individuals and telephone at 202–619–0634, no later 12:30 p.m. representatives of an organization may than November 12, 2008. PCPID will attempt to meet requests made after that ADDRESSES: The Sheraton National submit a letter of intent and a brief date, but cannot guarantee availability. Hotel, 900 S. Orme Street, Arlington, description of the organization All meeting sites are barrier free. VA 22204. represented. In addition, any interested Phone: 703–521–1900. Agenda: PCPID will meet to continue person may file written comments with FOR FURTHER INFORMATION CONTACT: work on the 2009 Annual Report to the the committee. All written comments CAPT Leigh A. Sawyer, D.V.M., M.P.H., President. must be received prior to November 10, Executive Director, National Biodefense Additional Information: For further Science Board, Office of the Assistant 2008 and should be sent by e-mail with information, please contact Sally D. Secretary for Preparedness and ‘‘NBSB Public Comment’’ as the subject Atwater, Executive Director, President’s Response, U.S. Department of Health line or by regular mail to the Contact Committee for People with Intellectual and Human Services, 200 Independence person listed above. Individuals who Disabilities, The Aerospace Center, Ave., SW., Room 638G, Washington, DC plan to attend and need special Second Floor West, 370 L’Enfant 20201; 202–205–3815; fax: 202–205– assistance, such as sign language Promenade, SW., Washington, DC 0613; e-mail address: interpretation or other reasonable 20447. Telephone: 202–619–0634. Fax: [email protected]. accommodations, should notify the 202–205–9591. E-mail: designated contact person. [email protected]. SUPPLEMENTARY INFORMATION: Pursuant to section 319M of the Public Health August 8, 2008. SUPPLEMENTARY INFORMATION: PCPID Service Act (42 U.S.C. 247d–7f) and William C. Vanderwagen, acts in an advisory capacity to the section 222 of the Public Health Service Assistant Secretary for Preparedness and President and the Secretary of Health Act (42 U.S.C. 217a), the Department of Response, U.S. Department of Health and and Human Services on a broad range Health and Human Services established Human Services. of topics relating to programs, services the National Biodefense Science Board. [FR Doc. E8–24843 Filed 10–17–08; 8:45 am] and supports for persons with The Board shall provide expert advice intellectual disabilities. PCPID, by BILLING CODE 4150–37–P and guidance to the Secretary on Executive Order, is responsible for scientific, technical, and other matters evaluating the adequacy of current of special interest to the Department of practices in programs, services and Health and Human Services regarding supports for persons with intellectual current and future chemical, biological, disabilities, and for reviewing legislative nuclear, and radiological agents, proposals that impact the quality of life whether naturally occurring, accidental, experienced by citizens with or deliberate. The Board may also intellectual disabilities and their provide advice and guidance to the families.

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Dated: October 8, 2008. obtained by mail by calling CBER at 1– used if such approach satisfies the Sally D. Atwater, 800–835–4709 or 301–827–1800. requirements of the applicable statutes Executive Director, President’s Committee for Submit written comments on the draft and regulations. People with Intellectual Disabilities. guidance to the Division of Dockets II. Paperwork Reduction Act of 1995 [FR Doc. E8–24798 Filed 10–17–08; 8:45 am] Management (HFA–305), Food and Drug BILLING CODE 4184–01–P Administration, 5630 Fishers Lane, rm. Under the Paperwork Reduction Act 1061, Rockville, MD 20852. Submit of 1995 (the PRA) (44 U.S.C. 3501– electronic comments to http:// 3520), Federal agencies must obtain DEPARTMENT OF HEALTH AND www.regulations.gov. See the approval from the Office of Management HUMAN SERVICES SUPPLEMENTARY INFORMATION section for and Budget (OMB) for each collection of electronic access to the draft guidance information that they conduct or Food and Drug Administration document. sponsor. ‘‘Collection of information’’ is [Docket No. FDA–2008–D–0530] defined in 44 U.S.C. 3502(3) and 5 CFR FOR FURTHER INFORMATION CONTACT: 1320.3(c) and includes agency requests David Roeder, Office of Antimicrobial Draft Guidance for Industry on Tropical or requirements that members of the Products, Center for Drug public submit reports, keep records, or Disease Priority Review Vouchers; Evaluation and Research, Food and Availability provide information to a third party. Drug Administration (WO–22), rm. Section 3506(c)(2)(A) of the PRA, 44 AGENCY: Food and Drug Administration, 6410, 0903 New Hampshire Ave., U.S.C. 3506(c)(2)(A), requires Federal HHS. Silver Spring, MD 20993–0002, agencies to provide a 60-day notice in ACTION: Notice. 301–796–0799,or the Federal Register for each proposed Stephen Ripley, Center for Biologics collection of information before SUMMARY: The Food and Drug Evaluation and Research (HFM–17), submitting the collection to OMB for Administration (FDA) is announcing the Food and Drug Administration, approval. To comply with this availability of a draft guidance for 1401 Rockville Pike, suite 200N, requirement, FDA is publishing this industry entitled ‘‘Tropical Disease Rockville, MD 20852–1448, 301– notice of the proposed collection of Priority Review Vouchers.’’ There has 827–6210. information set forth in this document. been significant outside interest in SUPPLEMENTARY INFORMATION: With respect to the collection of FDA’s interpretation of section 1102 of I. Background information associated with this draft the Food and Drug Administration guidance, FDA invites comments on the Amendments Act (FDAAA), which adds FDA is announcing the availability of following topics: (1) Whether the a new section 524 to the Federal Food, a draft guidance for industry entitled proposed information collected is Drug, and Cosmetic Act (the act). ‘‘Tropical Disease Priority Review necessary for the proper performance of Section 524 makes provisions for Vouchers.’’ Section 1102 of FDAAA FDA’s functions, including whether the awarding priority review vouchers for adds new section 524 to the act. Section information will have practical utility; future applications to sponsors of 524 is designed to encourage (2) the accuracy of FDA’s estimated tropical disease product applications development of new drug or biological burden of the proposed information that meet the criteria specified by the products for prevention and treatment collected, including the validity of the act. This draft guidance explains to of certain tropical diseases affecting methodology and assumptions used; (3) internal and external stakeholders how millions of people throughout the ways to enhance the quality, utility, and FDA intends to implement the world. By enacting section 524, clarity of the information collected; and provisions of section 524. Congress intends to stimulate new drug (4) ways to minimize the burden of DATES: Although you can comment on development for drugs to treat certain information collected on the any guidance at any time (see 21 CFR tropical diseases for which there are no respondents, including through the use 10.115(g)(5)), to ensure that the agency or few available treatments by offering of automated collection techniques, considers your comment on this draft additional incentives for obtaining FDA when appropriate, and other forms of guidance before it begins work on the approval for pharmaceutical treatments information technology. final version of the guidance, submit for these diseases. Under section 524, a Under the draft guidance, sponsors of written or electronic comments on the sponsor of a human drug application for certain tropical disease drug product draft guidance by December 19, 2008. a qualified tropical disease may be applications submitted under section Submit written comments on the eligible for a voucher that can be used 505(b)(1) of the act and section 351 of proposed collection of information by to obtain a priority review for any the PHS Act may request a priority December 19, 2008. application submitted under section review voucher. Based on the inquiries ADDRESSES: Submit written requests for 505(b)(1) of the act or section 351 of the FDA has received on section 524 and single copies of the draft guidance to the Public Health Service (PHS) Act. The related discussions with sponsors, we Division of Drug Information, Center for draft guidance also provides estimate that we will receive annually Drug Evaluation and Research, Food information on using the priority review approximately five requests from five and Drug Administration, 10903 New vouchers and on transferring priority sponsors, and that each request will take Hampshire Ave., Bldg. 51, rm. 2201, review vouchers to other sponsors. approximately 8 hours to prepare and Silver Spring, MD 20993–0002, or the This draft guidance is being issued submit to FDA. Office of Communication, Training, and consistent with FDA’s good guidance The draft guidance also states that Manufacturers Assistance (HFM–40), practices regulation (21 CFR 10.115). sponsors should notify FDA of their Center for Biologics Evaluation and The draft guidance, when finalized, will intent to use a priority review voucher, Research (CBER), Food and Drug represent the agency’s current thinking including the date on which the sponsor Administration, 1401 Rockville Pike, on obtaining tropical disease priority intends to submit the application, at suite 200N, Rockville, MD 20852–1448. review vouchers. It does not create or least 1 year before use. We estimate that Send one self-addressed adhesive label confer any rights for or on any person we will receive annually approximately to assist that office in processing your and does not operate to bind FDA or the five notifications of intent to use a requests. The draft guidance may also be public. An alternative approach may be voucher from five sponsors, and that

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each notification will take that each transfer should be from two new voucher owners approximately 8 hours to prepare and documented with a letter of transfer. We acknowledging the transfer, and that it submit to FDA. estimate that we will receive will take approximately 8 hours to The draft guidance also permits the approximately two letters indicating the prepare and submit each letter to FDA. transfer of a priority review voucher transfer of a voucher from two FDA estimates the burden of this from one sponsor to another, and states application holders, and two letters collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

Reporting Under Section 1102 of No. of No. responses Total Hours Per FDAAA Respondents per Respondent Responses Response Total Hours

Priority review voucher request 5 1 5 8 40

Notifications of intent to use a voucher 5 1 5 8 40

Letters indicating the transfer of a voucher 2 1 2 8 16

Letters acknowledging the receipt of a transferred voucher. 2 1 2 8 16

Total 112 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

III. Comments amended (5 U.S.C. Appendix 2), notice Information is also available on the is hereby given of a meeting of the Institute’s/Center’s home page: http:// Interested persons may submit to the deainfo.nci.nih.gov/advisory/bsc/bs/bs.htm, Division of Dockets Management (see Board of Scientific Counselors for Basic Sciences National Cancer Institute. The where an agenda and any additional ADDRESSES) written or electronic meeting will be closed to the public as information for the meeting will be posted comments regarding this document. when available. Submit a single copy of electronic indicated below in accordance with the provisions set forth in section (Catalogue of Federal Domestic Assistance comments or two paper copies of any Program Nos. 93.392, Cancer Construction; mailed comments, except that 552b(c)(6), Title 5 U.S.C., as amended 93.393, Cancer Cause and Prevention individuals may submit one paper copy. for the review, discussion, and Research; 93.394, Cancer Detection and Comments are to be identified with the evaluation of individual intramural Diagnosis Research; 93.395, Cancer docket number found in brackets in the programs and projects conducted by the Treatment Research; 93.396, Cancer Biology heading of this document. Received National Cancer Institute, including Research; 93.397, Cancer Centers Support; 93.398, Cancer Research Manpower; 93.399, comments may be seen in the Division consideration of personnel qualifications and performance, and the Cancer Control, National Institutes of Health, of Dockets Management between 9 a.m. HHS) and 4 p.m., Monday through Friday. competence of individual investigators, the disclosure of which would Please note that on January 15, 2008, Dated: October 10, 2008. constitute a clearly unwarranted the FDA Division of Dockets Jennifer Spaeth, invasion of personal privacy. Management Web site transitioned to Director, Office of Federal Advisory the Federal Dockets Management Name of Committee: Board of Scientific Committee Policy. System (FDMS). FDMS is a Counselors for Basic Sciences National [FR Doc. E8–24830 Filed 10–17–08; 8:45 am] Cancer Institute. Government-wide, electronic docket BILLING CODE 4140–01–P Date: November 18, 2008. management system. Electronic Time: 9 a.m. to 2:30 p.m. comments or submissions will be Agenda: To review and evaluate personal accepted by FDA only through FDMS at qualifications and performance, and DEPARTMENT OF HEALTH AND http://www.regulations.gov. competence of individual investigators. HUMAN SERVICES Place: National Institutes of Health, Dated: October 1, 2008. National Cancer Institute, 9000 Rockville National Institutes of Health Jeffrey Shuren, Pike, Building 31, Conference Room 6, Associate Commissioner for Policy and Bethesda, MD 20892. National Cancer Institute; Notice of Planning. Contact Person: Florence E. Farber, PhD, Meeting [FR Doc. E8–24932 Filed 10–17–08; 8:45 am] Executive Secretary, Office of the Director, National Cancer Institute, National Institutes BILLING CODE 4160–01–S Pursuant to section 10(d) of the of Health, 6116 Executive Boulevard, Room Federal Advisory Committee Act, as 2205, Bethesda, MD 20892, 301–496–7628, amended (5 U.S.C. Appendix 2), notice [email protected]. DEPARTMENT OF HEALTH AND In the interest of security, NIH has is hereby given of the meeting of the HUMAN SERVICES instituted stringent procedures for entrance President’s Cancer Panel. onto the NIH campus. All visitor vehicles, The meeting will be open to the National Institutes of Health including taxicabs, hotel, and airport shuttles public as indicated below, with will be inspected before being allowed on attendance limited to space available. National Cancer Institute; Notice of campus. Visitors will be asked to show one Closed Meeting form of identification (for example, a Individuals who plan to attend and government-issued photo ID, driver’s license, need special assistance, such as sign Pursuant to section 10(d) of the or passport) and to state the purpose of their language interpretation or other Federal Advisory Committee Act, as visit. reasonable accommodations, should

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notify the Contact Person listed below Board of Scientific Counselors for DEPARTMENT OF HEALTH AND in advance of the meeting. Clinical Sciences and Epidemiology HUMAN SERVICES The meeting will be closed to the National Cancer Institute. public in accordance with the National Institutes of Health The meeting will be closed to the provisions set forth in section public as indicated below in accordance 552b(c)(9)(B), Title 5 U.S.C., as National Center for Complementary & amended, because the premature with the provisions set forth in section Alternative Medicine; Notice of Closed disclosure of these discussions would 552b(c)(6), Title 5 U.S.C., as amended Meeting for the review, discussion, and be likely to significantly frustrate Pursuant to section 10(d) of the implementation of recommendations. evaluation of individual intramural programs and projects conducted by the Federal Advisory Committee Act, as Name of Committee: President’s Cancer National Cancer Institute, including amended (5 U.S.C. Appendix 2), notice Panel. is hereby given of the following consideration of personnel Date: December 4, 2008. meeting. Open: December 4, 2008, 8 a.m.–3 p.m. qualifications and performance, and the The meeting will be closed to the Agenda: Environmental Factors in Cancer. competence of individual investigators, Place: Doubletree Guest Suites, 181 Church public in accordance with the the disclosure of which would provisions set forth in sections Street, Charleston, SC 29401. constitute a clearly unwarranted Closed: December 4, 2008, 4 p.m.–7 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: Discussion of testimony given in invasion of personal privacy. as amended. The grant applications and open session on Environmental Factors in Name of Committee: Board of Scientific the discussions could disclose Cancer; consideration of thematic concepts Counselors for Clinical Sciences and confidential trade secrets or commercial for the 2009/2010 series. Epidemiology National Cancer Institute. property such as patentable material, Place: Doubletree Guest Suites, 181 Church Date: November 17, 2008. and personal information concerning Street, Charleston, SC 29401. Contact Person: Abby Sandler, PhD, Time: 9 a.m. to 4 p.m. individuals associated with the grant Executive Secretary, National Cancer Agenda: To review and evaluate personnel applications, the disclosure of which Institute, National Institutes of Health, qualifications and performance, and would constitute a clearly unwarranted Building 6116, Room 220, MSC 8349, 6116 competence of individual investigators. invasion of personal privacy. Executive Boulevard, Bethesda, MD 20892, Place: National Institutes of Health, Name of Committee: National Center for 301/451–9399. National Cancer Institute, 9000 Rockville Complementary and Alternative Medicine Any interested person may file written Pike, Building 31, Conference Room 10, Special Emphasis Panel, R21 Conflict comments with the committee by forwarding Bethesda, MD 20892. Review. the comments to the Contact Person listed on Contact Person: Brian E. Wojcik, PhD, Date: November 17, 2008. this notice. The comments should include Senior Review Administrator, Institute Time: 11 a.m. to 2 p.m. the name, address, telephone number and, Review Office, Office of the Director, Agenda: To review and evaluate grant when applicable, the business or professional applications. affiliation of the interested person. National Cancer Institute, 6116 Executive Place: National Institutes of Health, Information is also available on the Boulevard, Room 2201, Bethesda, MD 20892, Democracy Two, 6707 Democracy Boulevard, Institute’s/Center’s home page: (301) 496–7628, [email protected]. Room 401, Bethesda, MD 20817. (Telephone deainfo.nci.nih.gov/advisory/pcp/pcp.htm, In the interest of security, NIH has conference call) where an agenda and any additional instituted stringent procedures for entrance Contact Person: Laurie Friedman Donze, information for the meeting will be posted onto the NIH campus. All visitor vehicles, PhD, Scientific Review Officer, Office of when available. including taxicabs, hotel, and airport shuttles Scientific Review, National Center for (Catalogue of Federal Domestic Assistance will be inspected before being allowed on Complementary, and Alternative Medicine, Program Nos. 93.392, Cancer Construction; campus. Visitors will be asked to show one NIH, 6707 Democracy Blvd., Suite 401, 93.393, Cancer Cause and Prevention form of identification (for example, a Bethesda, MD 20892, 301–402–1030, Research; 93.394, Cancer Detection and government-issued photo ID, driver’s license, [email protected]. Diagnosis Research; 93.395, Cancer Treatment Research; 93.396, Cancer Biology or passport) and to state the purpose of their Dated: October 10, 2008. Research; 93.397, Cancer Centers Support; visit. Jennifer Spaeth, Information is also available on the 93.398, Cancer Research Manpower; 93.399, Director, Office of Federal Advisory Cancer Control, National Institutes of Health, Institute’s/Center’s home page: Committee Policy. HHS) deainfo.nci.nih.gov/advisory/bsc.htm, where [FR Doc. E8–24829 Filed 10–17–08; 8:45 am] Dated: October 10, 2008. an agenda and any additional information for the meeting will be posted when available. BILLING CODE 4140–01–P Jennifer Spaeth, Director, Office of Federal Advisory (Catalogue of Federal Domestic Assistance Committee Policy. Program Nos. 93.392, Cancer Construction; DEPARTMENT OF HEALTH AND [FR Doc. E8–24832 Filed 10–17–08; 8:45 am] 93.393, Cancer Cause and Prevention HUMAN SERVICES Research; 93.394, Cancer Detection and BILLING CODE 4140–01–P Diagnosis Research; 93.395, Cancer National Institutes of Health Treatment Research; 93.396, Cancer Biology DEPARTMENT OF HEALTH AND Research; 93.397, Cancer Centers Support; National Eye Institute; Notice of Closed HUMAN SERVICES 93.398, Cancer Research Manpower; 93.399, Meetings Cancer Control, National Institutes of Health, HHS) Pursuant to section 10(d) of the National Institutes of Health Federal Advisory Committee Act, as Dated: October 10, 2008. National Cancer Institute; Notice of amended (5 U.S.C. Appendix 2), notice Closed Meeting Jennifer Spaeth, is hereby given of the following Director, Office of Federal Advisory meetings. Pursuant to section 10(d) of the Committee Policy. The meetings will be closed to the Federal Advisory Committee Act, as [FR Doc. E8–24833 Filed 10–17–08; 8:45 am] public in accordance with the amended (5 U.S.C. Appendix 2), notice provisions set forth in sections BILLING CODE 4140–01–P is hereby given of a meeting of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,

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as amended. The grant applications and the discussions could disclose Related to Neurological Disorders; 93.854, the discussions could disclose confidential trade secrets or commercial Biological Basis Research in the confidential trade secrets or commercial property such as patentable material, Neurosciences, National Institutes of Health, property such as patentable material, and personal information concerning HHS) and personal information concerning individuals associated with the grant Dated: October 9, 2008. individuals associated with the grant applications, the disclosure of which Jennifer Spaeth, applications, the disclosure of which would constitute a clearly unwarranted Director, Office of Federal Advisory would constitute a clearly unwarranted invasion of personal privacy. Committee Policy. invasion of personal privacy. Name of Committee: National Institute of [FR Doc. E8–24796 Filed 10–17–08; 8:45 am] Name of Committee: National Eye Institute Neurological Disorders and Stroke Special BILLING CODE 4140–01–P Special Emphasis Panel; NEI Cooperative Emphasis Panel Continuation CT Review. Agreement Applications. Date: October 24, 2008. Date: November 5, 2008. Time: 1 p.m. to 2:30 p.m. DEPARTMENT OF HOMELAND Agenda: To review and evaluate grant Time: 12:30 p.m. to 1:30 p.m. SECURITY Agenda: To review and evaluate applications. Place: Gaithersburg Marriott cooperative agreement applications. Federal Emergency Management Place: National Institutes of Health, 5635 Washingtonian Center, 9751 Washingtonian Fishers Lane, Bethesda, MD 20892, Boulevard, Gaithersburg, MD 20878. Agency (Telephone Conference Call). Contact Person: Shanta Rajaram, PhD, Contact Person: Anne E Schaffner, PhD, Scientific Review Administrator, Scientific Compendium of Flood Map Changes Scientific Review Officer, Division Of Review Branch, Division of Extramural AGENCY: Federal Emergency Extramural Research, National Eye Institute, Research, NINDS/NIH/DHHS/Neuroscience 5635 Fishers Lane, Suite 1300, MSC 9300, Center, 6001 Executive Blvd., Suite 3208, Management Agency, DHS. Bethesda, MD 20892–9300, (301) 451–2020, MSC9529, Bethesda, MD 20852, (301) 435– ACTION: Notice of availability. [email protected]. 6033, [email protected]. Name of Committee: National Eye Institute This notice is being published less than 15 SUMMARY: The Federal Emergency Special Emphasis Panel; NEI Clinical, days prior to the meeting due to the timing Management Agency (FEMA) Epidemiological and Genetics Grant limitations imposed by the review and announces the availability of the Applications. funding cycle. Compendium of Flood Map Changes, Date: November 17, 2008. Name of Committee: National Institute of which provides a listing of changes Time: 8:30 a.m. to 3 p.m. Neurological Disorders and Stroke Special made to the National Flood Insurance Agenda: To review and evaluate grant Emphasis Panel CT SEP. Program (NFIP) maps that went into applications. Date: October 24, 2008. Place: Embassy Suites at the Chevy Chase Time: 2:30 p.m. to 4 p.m. effect from January 1, 2008, through Pavilion, 4300 Military Road, NW., Agenda: To review and evaluate grant June 30, 2008. Future notices of NFIP Washington, DC 20015. applications. map changes will be made available Contact Person: Anne E Schaffner, PhD, Place: Gaithersburg Marriott approximately every 6 months. Scientific Review Officer, Division of Washingtonian Center, 9751 Washingtonian DATES: The listings include changes to Extramural Research, National Eye Institute, Boulevard, Gaithersburg, MD 20878. NFIP maps that went into effect from 5635 Fishers Lane, Suite 1300, MSC 9300, Contact Person: Shanta Rajaram, PhD, January 1, 2008, through June 30, 2008. Bethesda, MD 20892–9300, (301) 451–2020, Scientific Review Administrator, Scientific [email protected]. Review Branch, Division of Extramural ADDRESSES: The Compendium of Flood (Catalogue of Federal Domestic Assistance Research, NINDS/NIH/DHHS/Neuroscience Map Changes is available on the Internet Program Nos. 93.867, Vision Research, Center, 6001 Executive Blvd., Suite 3208, at http://www.fema.gov/plan/prevent/ National Institutes of Health, HHS) MSC9529, Bethesda, MD 20852, (301) 435– fhm/dl_comp.shtm. 6033, [email protected]. Dated: October 3, 2008. FOR FURTHER INFORMATION CONTACT: This notice is being published less than 15 Jennifer Spaeth, days prior to the meeting due to the timing William R. Blanton, Jr., Chief, Director, Office of Federal Advisory limitations imposed by the review and Engineering Management Branch, Committee Policy. funding cycle. Mitigation Directorate, Federal [FR Doc. E8–24055 Filed 10–17–08; 8:45 am] Name of Committee: National Institute of Emergency Management Agency, 500 C BILLING CODE 4140–01–P Neurological Disorders and Stroke Special Street, SW., Washington, DC 20472, Emphasis Panel, Cerebral Hemorrhage. (202) 646–3151. Date: October 30, 2008. SUPPLEMENTARY INFORMATION: In DEPARTMENT OF HEALTH AND Time: 5 p.m. to 7 p.m. accordance with section 1360(i) of the HUMAN SERVICES Agenda: To review and evaluate grant National Flood Insurance Reform Act of applications. 1994, 42 U.S.C. 4101(i), this notice is National Institutes of Health Place: National Institutes of Health, Neuroscience Center, 6001 Executive provided to inform interested parties of the availability of changes made by National Institute of Neurological Boulevard, Rockville, MD 20852. (Telephone FEMA to NFIP maps. In the Disorders and Stroke; Notice of Closed conference call) Contact Person: Richard D. Crosland, PhD, Compendium of Flood Map Changes, Meetings Scientific Review Administrator, Scientific the two listings show communities Pursuant to section 10(d) of the Review Branch, Division of Extramural affected by map changes made by letter Federal Advisory Committee Act, as Research, NINDS/NIH/DHHS/ Neuroscience and communities affected by physical Center, 6001 Executive Blvd., Suite 3208, map changes. For each Letter of Map amended (5 U.S.C. Appendix 2), notice MSC9529, Bethesda, MD 20892–9529, 301– is hereby given of the following 594–0635, [email protected]. Change, the first listing provides the meetings. This notice is being published less than 15 map panel(s) affected, effective The meetings will be closed to the days prior to the meeting due to the timing (determination) date of the change, case public in accordance with the limitations imposed by the review and number, and determination type. For provisions set forth in sections funding cycle. each physical map change, the Map 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., (Catalogue of Federal Domestic Assistance Revision listing provides the map as amended. The grant applications and Program Nos. 93.853, Clinical Research panel(s) affected and the effective date

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of the change. The listing also identifies: and Emergency Assistance Act, 42 97.048, Disaster Housing Assistance to (1) Those panels on which the Special U.S.C. 5121–5207 (the Stafford Act), as Individuals and Households in Presidentially Flood Hazard Areas have not been follows: Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance— changed or have been changed only to I have determined that the damage in incorporate the Letters of Map Change certain areas of the State of Illinois resulting Disaster Housing Operations for Individuals issued before the effective date; and (2) from severe storms and flooding beginning and Households; 97.050, Presidentially those panels for which a Flood on September 13, 2008, and continuing, is of Declared Disaster Assistance to Individuals Insurance Rate Map is produced for the sufficient severity and magnitude to warrant and Households—Other Needs; 97.036, first time, resulting only in changes to a major disaster declaration under the Robert Disaster Grants—Public Assistance flood insurance and floodplain T. Stafford Disaster Relief and Emergency (Presidentially Declared Disasters); 97.039, management requirements in the Assistance Act, 42 U.S.C. 5121–5207 (the Hazard Mitigation Grant.) Stafford Act). Therefore, I declare that such affected community. Future notices of a major disaster exists in the State of Illinois. R. David Paulison, changes to NFIP maps will be made In order to provide Federal assistance, you Administrator, Federal Emergency available approximately every 6 months. are hereby authorized to allocate from funds Management Agency. The Compendium of Flood Map available for these purposes such amounts as [FR Doc. E8–24790 Filed 10–17–08; 8:45 am] Changes is available on the Internet at you find necessary for Federal disaster http://www.fema.gov/plan/prevent/fhm/ assistance and administrative expenses. BILLING CODE 9111–23–P dl_comp.shtm. The compendia shall be You are authorized to provide Individual available, free of charge, to Federal Assistance in the designated areas, Hazard entities for lending regulation, Federal Mitigation throughout the State, and any DEPARTMENT OF HOMELAND agency lenders, and States and other forms of assistance under the Stafford SECURITY Act that you deem appropriate. Consistent communities participating in the with the requirement that Federal assistance Federal Emergency Management National Flood Insurance Program, and be supplemental, any Federal funds provided Agency at a cost to all other parties. For more under the Stafford Act for Hazard Mitigation information, contact the FEMA Map and Other Needs Assistance will be limited Service Center at (800) 358–9616 or go to 75 percent of the total eligible costs. If [FEMA–1795–DR] to http://www.msc.fema.gov. Public Assistance is later requested and warranted, Federal funds provided under Indiana; Amendment No. 3 to Notice of Authority: 42 U.S.C. 4101(i). that program also will be limited to 75 a Major Disaster Declaration Dated: September 17, 2008. percent of the total eligible costs, except for Michael K. Buckley, any particular projects that are eligible for a AGENCY: Federal Emergency higher Federal cost-sharing percentage under Acting Assistant Administrator, Mitigation Management Agency, DHS. the FEMA Public Assistance Pilot Program Directorate, Department of Homeland instituted pursuant to 6 U.S.C. 777. ACTION Security, Federal Emergency Management : Notice. Further, you are authorized to make Agency. changes to this declaration to the extent SUMMARY: This notice amends the notice [FR Doc. E8–24794 Filed 10–17–08; 8:45 am] allowable under the Stafford Act. BILLING CODE 9110–12–P of a major disaster declaration for the The time period prescribed for the State of Indiana (FEMA–1795–DR), implementation of section 310(a), dated September 23, 2008, and related DEPARTMENT OF HOMELAND Priority to Certain Applications for determinations. SECURITY Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for DATES: Effective Date: October 6, 2008. Federal Emergency Management a period not to exceed six months after FOR FURTHER INFORMATION CONTACT: Agency the date of this declaration. Peggy Miller, Disaster Assistance The Federal Emergency Management Directorate, Federal Emergency [FEMA–1800–DR] Agency (FEMA) hereby gives notice that Management Agency, 500 C Street, SW., pursuant to the authority vested in the Illinois; Major Disaster and Related Washington, DC 20472, (202) 646–3886. Determinations Administrator, under Executive Order 12148, as amended, Elizabeth Turner, of SUPPLEMENTARY INFORMATION: Notice is AGENCY: Federal Emergency FEMA is appointed to act as the Federal hereby given that the incident period for Management Agency, DHS. Coordinating Officer for this declared this disaster is closed effective October ACTION: Notice. disaster. 6, 2008. The following areas of the State of (The following Catalog of Federal Domestic SUMMARY: This is a notice of the Illinois have been designated as Assistance Numbers (CFDA) are to be used Presidential declaration of a major adversely affected by this declared for reporting and drawing funds: 97.030, disaster for the State of Illinois (FEMA– major disaster: 1800–DR), dated October 3, 2008, and Community Disaster Loans; 97.031, Cora Cook, DeKalb, DuPage, Grundy, Kane, related determinations. Brown Fund; 97.032, Crisis Counseling; LaSalle, and Will Counties for Individual 97.033, Disaster Legal Services; 97.034, DATES: Effective Date: October 3, 2008. Assistance. Disaster Unemployment Assistance (DUA); FOR FURTHER INFORMATION CONTACT: All counties within the State of Illinois are 97.046, Fire Management Assistance Grant; eligible to apply for assistance under the Peggy Miller, Disaster Assistance 97.048, Disaster Housing Assistance to Hazard Mitigation Grant Program. Directorate, Federal Emergency Individuals and Households In Presidentially (The following Catalog of Federal Domestic Management Agency, 500 C Street, SW., Declared Disaster Areas; 97.049, Assistance Numbers (CFDA) are to be used Washington, DC 20472, (202) 646–3886. Presidentially Declared Disaster Assistance— for reporting and drawing funds: 97.030, SUPPLEMENTARY INFORMATION: Notice is Community Disaster Loans; 97.031, Cora Disaster Housing Operations for Individuals hereby given that, in a letter dated Brown Fund; 97.032, Crisis Counseling; and Households; 97.050, Presidentially October 3, 2008, the President declared 97.033, Disaster Legal Services; 97.034, Declared Disaster Assistance to Individuals a major disaster under the authority of Disaster Unemployment Assistance (DUA); and Households—Other Needs; 97.036, the Robert T. Stafford Disaster Relief 97.046, Fire Management Assistance Grant; Disaster Grants—Public Assistance

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(Presidentially Declared Disasters); 97.039, eligible costs, except for any particular Commonwealth of Puerto Rico (FEMA– Hazard Mitigation Grant. projects that are eligible for a higher Federal 1798–DR), dated October 1, 2008, and cost-sharing percentage under the FEMA related determinations. R. David Paulison, Public Assistance Pilot Program instituted Administrator, Federal Emergency pursuant to 6 U.S.C. 777. If Other Needs DATES: Effective Date: October 3, 2008. Management Agency. Assistance under Section 408 of the Stafford FOR FURTHER INFORMATION CONTACT: [FR Doc. E8–24789 Filed 10–17–08; 8:45 am] Act is later requested and warranted, Federal Peggy Miller, Disaster Assistance BILLING CODE 9111–23–P funding under that program also will be Directorate, Federal Emergency limited to 75 percent of the total eligible Management Agency, 500 C Street, SW., costs. Washington, DC 20472, (202) 646–3886. Further, you are authorized to make DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: changes to this declaration to the extent Notice is SECURITY allowable under the Stafford Act. hereby given that the incident period for this disaster is closed effective October Federal Emergency Management The Federal Emergency Management 3, 2008. Agency Agency (FEMA) hereby gives notice that pursuant to the authority vested in the (The following Catalog of Federal Domestic [FEMA–1799–DR] Administrator, under Executive Order Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, New Hampshire; Major Disaster and 12148, as amended, Mark H. Landry, of Community Disaster Loans; 97.031, Cora Related Determinations FEMA is appointed to act as the Federal Brown Fund; 97.032, Crisis Counseling; Coordinating Officer for this declared 97.033, Disaster Legal Services; 97.034, AGENCY: Federal Emergency disaster. Disaster Unemployment Assistance (DUA); Management Agency, DHS. The following areas of the State of 97.046, Fire Management Assistance Grant; ACTION: Notice. New Hampshire have been designated 97.048, Disaster Housing Assistance to as adversely affected by this declared Individuals and Households In Presidentially SUMMARY: This is a notice of the major disaster: Declared Disaster Areas; 97.049, Presidential declaration of a major Presidentially Declared Disaster Assistance— Hillsborough County for Public Assistance. Disaster Housing Operations for Individuals disaster for the State of New Hampshire All counties within the State of New and Households; 97.050, Presidentially (FEMA–1799–DR), dated October 3, Hampshire are eligible to apply for assistance Declared Disaster Assistance to Individuals 2008, and related determinations. under the Hazard Mitigation Grant Program. and Households—Other Needs; 97.036, DATES: Effective Date: October 3, 2008. (The following Catalog of Federal Domestic Disaster Grants—Public Assistance Assistance Numbers (CFDA) are to be used (Presidentially Declared Disasters); 97.039, FOR FURTHER INFORMATION CONTACT: for reporting and drawing funds: 97.030, Hazard Mitigation Grant.) Peggy Miller, Disaster Assistance Community Disaster Loans; 97.031, Cora Directorate, Federal Emergency Brown Fund; 97.032, Crisis Counseling; R. David Paulison, Management Agency, 500 C Street, SW., 97.033, Disaster Legal Services; 97.034, Administrator, Federal Emergency Washington, DC 20472, (202) 646–3886. Disaster Unemployment Assistance (DUA); Management Agency. SUPPLEMENTARY INFORMATION: Notice is 97.046, Fire Management Assistance Grant; [FR Doc. E8–24792 Filed 10–17–08; 8:45 am] hereby given that, in a letter dated 97.048, Disaster Housing Assistance to BILLING CODE 9111–23–P October 3, 2008, the President declared Individuals and Households in Presidentially Declared Disaster Areas; 97.049, a major disaster under the authority of Presidentially Declared Disaster Assistance— DEPARTMENT OF HOMELAND the Robert T. Stafford Disaster Relief Disaster Housing Operations for Individuals and Emergency Assistance Act, 42 and Households; 97.050, Presidentially SECURITY U.S.C. 5121–5207 (the Stafford Act), as Declared Disaster Assistance to Individuals follows: and Households—Other Needs; 97.036, Federal Emergency Management Disaster Grants—Public Assistance Agency I have determined that the damage in (Presidentially Declared Disasters); 97.039, certain areas of the State of New Hampshire [FEMA–1798–DR] Hazard Mitigation Grant.) resulting from severe storms and flooding during the period of September 6–7, 2008, is R. David Paulison, Puerto Rico; Amendment No. 2 to Notice of a Major Disaster Declaration of sufficient severity and magnitude to Administrator, Federal Emergency warrant a major disaster declaration under Management Agency. the Robert T. Stafford Disaster Relief and AGENCY: Federal Emergency Emergency Assistance Act, 42 U.S.C. 5121– [FR Doc. E8–24791 Filed 10–17–08; 8:45 am] Management Agency, DHS. 5207 (the Stafford Act). Therefore, I declare BILLING CODE 9111–23–P ACTION: Notice. that such a major disaster exists in the State of New Hampshire. SUMMARY: This notice amends the notice In order to provide Federal assistance, you DEPARTMENT OF HOMELAND of a major disaster declaration for the are hereby authorized to allocate from funds SECURITY Commonwealth of Puerto Rico (FEMA– available for these purposes such amounts as 1798–DR), dated October 1, 2008, and you find necessary for Federal disaster Federal Emergency Management related determinations. assistance and administrative expenses. Agency You are authorized to provide Public DATES: Effective Date: October 8, 2008. Assistance in the designated areas, Hazard [FEMA–1798–DR] FOR FURTHER INFORMATION CONTACT: Mitigation throughout the State, and any Peggy Miller, Disaster Assistance other forms of assistance under the Stafford Puerto Rico; Amendment No. 1 to Directorate, Federal Emergency Act that you deem appropriate. Consistent Notice of a Major Disaster Declaration Management Agency, 500 C Street, SW., with the requirement that Federal assistance Washington, DC 20472, (202) 646–3886. be supplemental, any Federal funds provided AGENCY: Federal Emergency SUPPLEMENTARY INFORMATION: under the Stafford Act for Hazard Mitigation Management Agency, DHS. The notice will be limited to 75 percent of the total ACTION: Notice. of a major disaster declaration for the eligible costs. Federal funds provided under Commonwealth of Puerto Rico is hereby the Stafford Act for Public Assistance also SUMMARY: This notice amends the notice amended to include the following areas will be limited to 75 percent of the total of a major disaster declaration for the among those areas determined to have

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been adversely affected by the into and/or out of Ronald Reagan To receive authorization for a flight, catastrophe declared a major disaster by Washington National Airport (DCA) to aircraft operators must submit certain the President in his declaration of designate a security coordinator and information to TSA so that TSA can October 1, 2008. adopt a DCA Access Standard Security conduct name-based threat assessments Arroyo, Cabo Rojo, Guanica, Guayanilla, Program (DASSP). on their crewmembers and passengers, Gurabo, Juncos, Lajas, Pen˜ uelas, San DATES: Send your comments by including armed security officers Lorenzo, Villalba, and Yauco December 19, 2008. (ASOs) who are required to be onboard. Municipalities for Individual Assistance ADDRESSES: Comments may be mailed Each ASO must complete specialized and Public Assistance. training and receive authorization from Guayama, Humacao, Maunabo, Patillas, or delivered to Joanna Johnson, Office of Information Technology, TSA–11, TSA. The operators’ last point of Santa Isabel, and Yabucoa Municipalities departure must be from a Fixed Base for Public Assistance (already designated Transportation Security Administration, for Individual Assistance). 601 South 12th Street, Arlington, VA Operator (FBO) that holds a security Adjuntas, Las Marias, Las Piedras, Naguabo, 22202–4220. program issued by TSA, at an airport designated by TSA (gateway airport). An Sabana Grande, San German, and Utuado FOR FURTHER INFORMATION CONTACT: FBO is an airport-based commercial Municipalities for Public Assistance. Joanna Johnson at the above address, or enterprise that provides support (The following Catalog of Federal Domestic by telephone (571) 227–3651 or services to aircraft operators. Inspection Assistance Numbers (CFDA) are to be used facsimile (703) 603–0822. for reporting and drawing funds: 97.030, of aircraft and screening of the Community Disaster Loans; 97.031, Cora SUPPLEMENTARY INFORMATION: passengers, their carry-on property, and Brown Fund; 97.032, Crisis Counseling; Comments Invited property carried in the cargo hold occur 97.033, Disaster Legal Services; 97.034, at each gateway airport before the In accordance with the Paperwork Disaster Unemployment Assistance (DUA); aircraft departs for DCA. 97.046, Fire Management Assistance Grant; Reduction Act of 1995, (44 U.S.C. 3501 97.048, Disaster Housing Assistance to et seq.), an agency may not conduct or For each passenger and crewmember Individuals and Households in Presidentially sponsor, and a person is not required to onboard an aircraft that operates into or Declared Disaster Areas; 97.049, respond to a collection of information, out of DCA, the aircraft operator must Presidentially Declared Disaster Assistance— unless it displays a valid OMB control submit the following information: (1) Disaster Housing Operations for Individuals number. Therefore, in preparation for Legal name, including first, middle, and and Households; 97.050 Presidentially last, any applicable suffix, and any other Declared Disaster Assistance to Individuals OMB review and approval of the following information collection, TSA is names used; (2) current mailing address, and Households—Other Needs; 97.036, including residential address if different Disaster Grants—Public Assistance soliciting comments to— (Presidentially Declared Disasters); 97.039, (1) Evaluate whether the proposed than current mailing address; (3) date Hazard Mitigation Grant.) information requirement is necessary for and place of birth; (4) Social Security number (submission is voluntary, R. David Paulison, the proper performance of the functions of the agency, including whether the although recommended); (5) citizenship Administrator, Federal Emergency status and date of naturalization if the Management Agency. information will have practical utility; (2) Evaluate the accuracy of the individual is a naturalized citizen of the [FR Doc. E8–24793 Filed 10–17–08; 8:45 am] agency’s estimate of the burden; United States; and (6) alien registration BILLING CODE 9111–23–P (3) Enhance the quality, utility, and number, if applicable. TSA uses this clarity of the information to be information to perform a name-based security threat assessment in order to DEPARTMENT OF HOMELAND collected; and (4) Minimize the burden of the determine whether the individuals pose SECURITY collection of information on those who a security threat. Transportation Security Administration are to respond, including using TSA requires the following appropriate automated, electronic, individuals to submit identifying [Docket No. TSA–2005–21866] mechanical, or other technological information and fingerprints for a collection techniques or other forms of Criminal History Records Check Intent To Request Renewal From OMB information technology. (CHRC): Individuals designated as of One Current Public Collection of security coordinators, ASOs, and flight Information: Enhanced Security Information Collection Requirement crewmembers that operate GA aircraft Procedures at Ronald Reagan OMB Control No. 1652–0035; into and out of DCA. For flight Washington National Airport Enhanced Security Procedures at crewmembers, TSA uses this AGENCY: Transportation Security Ronald Reagan Washington National information to check their FAA records Administration (TSA), DHS. Airport (DCA), 49 CFR part 1562. TSA to determine whether they have violated ACTION: 60 Day Notice. is hereby requesting an extension of this specific regulations on prohibited or information collection. restricted airspace, and to conduct SUMMARY: The Transportation Security TSA requires General Aviation (GA) CHRCs on flight crewmembers that have Administration (TSA) invites public aircraft operators who wish to fly into not undergone a CHRC under his or her comment on one currently approved and/or out of Ronald Reagan current employer. As part of the threat Information Collection Request (ICR), Washington National Airport (DCA) to assessment process, TSA shares the OMB control number 1652–0035, designate a security coordinator and information with the Federal Bureau of abstracted below that we will submit to adopt the DCA Access Standard Investigation (FBI) and the FAA. In the Office of Management and Budget Security Program (DASSP). Once addition to providing fingerprints and (OMB) for renewal in compliance with aircraft operators have complied with identifying information, ASOs must the Paperwork Reduction Act. The ICR the DASSP requirements, they may be provide personal history information describes the nature of the information eligible to apply to the Federal Aviation (employment, criminal, education, collection and its expected burden. The Administration (FAA) for a reservation, training, military, medical, and law collection requires General Aviation and to TSA for authorization, to fly into enforcement), as well as a photograph (GA) aircraft operators who wish to fly and out of DCA. and weapon information.

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Aircraft operators must provide TSA 26, 2006 (71 FR 42412). For more about alternative, refuge management will with the flight plan and registration the process, see that notice. focus on maintaining native wildlife number of their aircraft that operates to Established in 1964, Lake Woodruff and habitat diversity, restoring habitats, or from DCA. This information is also NWR is located approximately 28 miles improving conditions for threatened and being shared with FAA for purposes of west of Daytona Beach, Florida, in Lake endangered species and migratory birds, tracking and identifying approved and Volusia counties. The 21,574-acre and increasing public use opportunities. aircraft. TSA estimates a total of 200 refuge includes a diversity of habitats (Authority: This notice is published under respondents annually. The total number consisting of open water, freshwater the authority of the National Wildlife Refuge of annual burden hours is estimated to marshes, impounded wetlands, and System Improvement Act of 1997, Public be 227 hours per year (200 respondents uplands. These areas support a variety Law 105–57.) × 1.135 hours per respondent = 227 of wildlife and plant species, including Dated: August 27, 2008. waterfowl and other migratory birds, as hours annually). Cynthia K. Dohner, well as federal- and state-listed species. Issued in Arlington, Virginia, on October Acting Regional Director. 15, 2008. In addition, the refuge protects [FR Doc. E8–24885 Filed 10–17–08; 8:45 am] Kurt Guyer, historical and archaeological sites and provides a range of visitor services. BILLING CODE 4310–55–P Acting Program Manager, Business We announce our decision and the Improvements and Communications, Office of Information Technology. availability of the final CCP and FONSI for Lake Woodruff NWR in accordance DEPARTMENT OF THE INTERIOR [FR Doc. E8–24929 Filed 10–17–08; 8:45 am] with National Environmental Policy Act BILLING CODE 4910–62–P Fish and Wildlife Service (NEPA) [40 CFR 1506.6(b)] requirements. We completed a thorough [FWS–R6–R–2008–N0268; 61411–0000– analysis of impacts on the human 1115–F4] DEPARTMENT OF THE INTERIOR environment, which we included in the Proposed Candidate Conservation Fish and Wildlife Service Draft CCP and Environmental Assessment (Draft CCP/EA). Agreement With Assurances for the [FWS–R4–R–2008–N0218; 40136–1265– Black-Tailed Prairie Dog, Mountain 0000–S3] Background Plover, Burrowing Owl, and The National Wildlife Refuge System Ferruginous Hawk for the 4W Ranch in Lake Woodruff National Wildlife Improvement Act of 1997 (16 U.S.C. Niobrara and Weston Counties, WY Refuge, Lake and Volusia Counties, FL 668dd–668ee) (Improvement Act), AGENCY: Fish and Wildlife Service, AGENCY: Fish and Wildlife Service, which amended the National Wildlife Interior. Refuge System Administration Act of Department of the Interior. ACTION: 1966, requires us to develop a CCP for Notice of availability; receipt of ACTION: Notice of availability: Final application. comprehensive conservation plan and each national wildlife refuge. The finding of no significant impact. purpose for developing a CCP is to SUMMARY: This notice advises the public provide refuge managers with a 15-year that the 4W Ranch, FLP (Applicant) has SUMMARY: We, the U.S. Fish and plan for achieving refuge purposes and applied to the U.S. Fish and Wildlife Wildlife Service (Service), announce the contributing toward the mission of the Service (Service) for an enhancement of availability of our final comprehensive National Wildlife Refuge System, survival permit (permit) pursuant to conservation plan (CCP) and finding of consistent with sound principles of fish section 10(a)(1)(A) of the Endangered no significant impact (FONSI) for Lake and wildlife management, conservation, Species Act of 1973, as amended (Act). Woodruff National Wildlife Refuge legal mandates, and our policies. In This permit application includes a (NWR). In the CCP, we describe how we addition to outlining broad management Candidate Conservation Agreement with will manage Lake Woodruff NWR for direction on conserving wildlife and Assurances (Agreement) between the the next 15 years. their habitats, CCPs identify wildlife- Applicant and the Service. The Service ADDRESSES: A copy of the final CCP may dependent recreational opportunities requests information, views, and be obtained by visiting the refuge at available to the public, including opinions from the public via this notice. 2045 Mud Lake Road, DeLeon Springs, opportunities for hunting, fishing, Further, the Service is soliciting FL 32130; by e-mailing wildlife observation, wildlife information regarding the adequacy of [email protected]; by calling photography, and environmental the Agreement as measured against the the Refuge Complex at 321/861–0667; or education and interpretation. We will Service’s Candidate Conservation by writing the Refuge Complex at Lake review and update the CCP at least Agreement with Assurances policy and Woodruff NWR (CCP), P.O. Box 2683, every 15 years in accordance with the the regulations that implement it. Improvement Act. Titusville, FL 32781–2683. The CCP DATES: Written comments on the permit may also be accessed and downloaded Comments application must be received on or from the Service’s Internet Site: http:// before November 19, 2008. southeast.fws.gov/planning. We solicited comments on the Draft CCP/EA for a 30-day period as ADDRESSES: Persons wishing to review FOR FURTHER INFORMATION CONTACT: announced in the Federal Register on the Agreement and permit application Cheri Ehrhardt; Telephone: 321/861– April 23, 2008 (73 FR 21978). All may obtain copies by writing to the 2368. comments were thoroughly evaluated, Wyoming Ecological Services Field SUPPLEMENTARY INFORMATION: and changes were incorporated into the Office, U.S. Fish and Wildlife Service, final CCP, where warranted. 5353 Yellowstone Road, Suite 308A, Introduction Cheyenne, Wyoming 82001. Documents With this notice, we finalize the CCP Selected Alternative also will be available for public process for Lake Woodruff NWR. We After considering the comments we inspection during normal business started this process through a notice of received, we have selected Alternative D hours at this office. Documents also may intent in the Federal Register on July for implementation. Under this be viewed on the following Web site:

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http://www.fws.gov/mountain-prairie/ the Agreement and permit is 10 years. tailed prairie dog habitat in the eastern es/wyoming/index.htm. Written data or The Agreement fully describes the range occurs on private lands, private comments concerning the Agreement or proposed management activities to be landowners willing to manage for permit application should be addressed undertaken by the Applicant and the suitable habitat can play an important to Brian T. Kelly, Field Supervisor, at conservation benefits expected to be role in the long-term conservation of the the above address, to be adequately gained for the covered species. We have black-tailed prairie dog. Accordingly, considered in the Service’s decision- made a preliminary determination that the 4W Ranch agrees to undertake making process. Written comments also the Agreement qualifies as a low-effect management activities to enhance may be sent by facsimile to (307) 772– plan, since it has minor to negligible habitat and protect the ranch’s 2358. Please reference permit number effects on federally listed, proposed or populations of black-tailed prairie dogs, TE184530 in your comments, or in the candidate species and their habitats, mountain plovers, burrowing owls, and request of the documents discussed and qualifies for a categorical exclusion ferruginous hawks. However, the herein. under the National Environmental willingness for participation by the Policy Act (NEPA). property owner depends on the ability FOR FURTHER INFORMATION CONTACT: Upon approval of this Agreement, and to manage these species to allow Brian T. Kelly, Field Supervisor, consistent with the Service’s Candidate maintenance of the ranch’s economic Wyoming Ecological Services Field Conservation Agreement with viability and protection of high-value Office, at the above address; telephone Assurances’ policy published in the forage areas for livestock. (307) 772–2374. People who use a Federal Register on June 17, 1999 (64 Management activities described in telecommunications device for the deaf FR 32726), the Service would issue a the Agreement provide for the (TDD) may call the Federal Information permit to the applicant authorizing take restoration, enhancement, and Relay Service at (800) 877–8339. of the covered species by the Applicant management of native habitats of the SUPPLEMENTARY INFORMATION: associated with the implementation of covered species on 3,370 acres of the Background the management activities specified in 4W Ranch. The objective of such the Agreement. To benefit the covered activities is to enhance populations of Under a Candidate Conservation species, the Applicant agrees to the covered species by increasing the Agreement with Assurances, undertake site-specific management amount and quality of suitable habitat participating landowners voluntarily activities, which are specified in their on the enrolled properties. Management undertake management activities on Agreement. of black-tailed prairie dogs, outlined in their property to enhance, restore, or The black-tailed prairie dog is the Agreement, will focus on maintain habitat benefiting species that considered a keystone species, because maintaining colonies within a 3,000- are proposed for listing under the Act, the effects of its foraging and burrowing acre core management area. candidates for listing, or may become behaviors maintain habitat features Conservation measures to be candidates. Candidate Conservation important to a variety of other species implemented by the 4W Ranch under Agreements with Assurances, and the and it serves as a food source for the Agreement include control of subsequent permits that are issued predators. Prairie dog activities result in prickly pear cactus, range soil aeration, pursuant to section 10(a)(1)(A) of the mixing subsoil with topsoil, which reseeding grasses, and livestock grazing Act (16 U.S.C. 1531 et seq.), encourage redistributes nutrients and increases rotation. These measures also would private and other non-Federal property water infiltration rates. The resulting benefit the other covered species, which owners to implement conservation soil and moisture conditions depend on the prairie dog for suitable efforts for species by assuring property consequently increase plant diversity, habitat and prey. The implementation of owners that they will not be subjected which in turns attracts a variety of these measures, as well as some routine to increased land use restrictions as a animals to prairie dog colonies. ranching activities, may result in the result of efforts to attract or increase the However, prairie dogs can also have incidental take of the covered species. numbers or distribution of a listed significant adverse effects on vegetation Such take would be authorized by the species on their property, if that species communities in localized areas in and issuance to the property owner of a becomes listed under the Act in the near their colonies. Prairie dogs can section 10(a)(1)(A) permit under the future. Application requirements and denude areas of vegetation under authority of 50 CFR 17.22(d) for species issuance criteria for permits through the prolonged drought and heat conditions. federally listed as endangered or 50 CFR Candidate Conservation Agreement with As a result, prairie dogs have often been 17.32 (d) for species federally listed as Assurances are found in 50 CFR viewed by landowners as directly threatened. 17.22(d) and 17.32(d). competing with livestock for forage An incentive for long-term We have worked with the Applicant resources. conservation of the black-tailed prairie to develop this proposed Agreement for The black-tailed prairie dog was dog on the 4W Ranch is the assurance the conservation of the black-tailed eliminated from much of its historic that the property owner will be able to prairie dog (Cynomys ludovicianus), range as a result of control efforts by maintain economic viability of the mountain plover (Charadrius both public and private landowners. ranch by preventing encroachment of montanus), burrowing owl (Athene Control efforts no longer appear to be prairie dogs onto important ranch cunicularia), and ferruginous hawk significantly reducing the range-wide production areas (e.g., hay meadows). (Buteo regalis) (covered species) on the distribution of the species, but The property owner would be 4W Ranch, which lies in Niobrara and continued control efforts by some authorized to use primarily regulated Weston Counties, Wyoming. Within the landowners can have localized effects to recreational shooting and other 29,000 acres of 4W Ranch owned or prairie dog populations. Due to the measures as necessary to control prairie leased lands, the landowners have perceived conflict of prairie dogs with dogs when populations on the 4W identified 3,370 acres of their privately other land uses, landowners are more Ranch are above established thresholds. owned property on which habitat for the inclined to maintain or increase habitat Such regulated take would be covered species will be restored, as viable and productive for prairie dog, authorized by the section 10(a)(1)(A) enhanced, and managed pursuant to the if doing so can be balanced with other permit issued to the property owner Agreement. The proposed duration of land uses. Because most of the black- under the authority of 50 CFR 17.22(a)

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for species federally listed as information in your comment, you Rialto, San Bernardino County, endangered or 50 CFR 17.32 (a) for should be aware that your entire California. A conservation program to species federally listed as threatened. comment—including your personal mitigate for impacts of the project on the A single section 10(a)(1)(A) permit identifying information—may be made DSF would be implemented as would be issued with separate publicly available at any time. While described in the proposed West Colton authorizations, as cited above, for the you can ask us in your comment to Terminal Temporary Ethanol incidental take of the covered species withhold your personal identifying Transloading Facility Low-Effect Habitat and for the intentional take of the black- information from public review, we Conservation Plan (HCP). tailed prairie dog. The permit also cannot guarantee that we will be able to We are requesting comments on the would contain separate sets of special do so. permit application and on the terms and conditions for each of the two We will evaluate this permit preliminary determination that the types of take. The permit would become application, associated documents, and proposed HCP qualifies as a ‘‘Low- effective upon Federal listing of any of comments submitted thereon to Effect’’ Habitat Conservation Plan, the covered species. determine whether the permit eligible for a categorical exclusion under Annual monitoring, required by the application meets the requirements of the National Environmental Policy Act Agreement, will be conducted to section 10(a) of the Act and NEPA (NEPA) of 1969, as amended. The basis determine active burrow densities, regulations at 40 CFR 1506.6. If we for this determination is discussed in which can be used as an index of determine that the requirements are the Environmental Action Statement population levels. Recreational shooting met, we will sign the proposed (EAS) and the associated Low Effect will not occur unless monitoring Agreement and issue a permit under Screening Form, which are also indicates the population threshold has section 10(a)(1)(A) of the Act to the available for public review. been exceeded. For example, when Applicants for take of the covered DATES: Written comments should be plague epizootics have reduced the species in accordance with the terms of received on or before November 19, population below established the Agreement. We will not make our 2008. thresholds, all recreational shooting will final decision until after the end of the ADDRESSES: be suspended, pending the recovery of 30-day comment period and will fully Comments should be the population back to threshold levels. consider all comments received during addressed to the Field Supervisor, Fish Additionally, ongoing monitoring and the comment period. and Wildlife Service, Carlsbad Fish and adaptive management will allow The Service provides this notice Wildlife Office, 6010 Hidden Valley adjustment of management goals and under section 10(c) of the Act and Road, Suite 101, Carlsbad, California thresholds should new information implementing regulations for NEPA (40 92011. Written comments may be sent indicate populations are decreasing or CFR 1506.6). by facsimile to (760) 918–0638. increasing outside the threshold FOR FURTHER INFORMATION CONTACT: Ms. Dated: May 20, 2008. parameters. Karen Goebel, Assistant Field Baseline population and habitat Scott Hicks, Supervisor, Carlsbad Fish and Wildlife conditions for the covered species are Deputy Field Supervisor, Cheyenne, Office (see ADDRESSES); telephone: (760) described in the Agreement. Annual Wyoming. 431–9440. [FR Doc. E8–24884 Filed 10–17–08; 8:45 am] monitoring is a key component of the SUPPLEMENTARY INFORMATION: Agreement and is one of the BILLING CODE 4310–55–P requirements for receiving assurances Availability of Documents that no further measures would be Individuals wishing copies of the DEPARTMENT OF THE INTERIOR required of the property owner and that proposed HCP and EAS should take of any of the covered species, if Fish and Wildlife Service immediately contact the Service by federally listed, under the permit would telephone at (760) 431–9440 or by letter continue to be authorized. Adaptive [FWS–R8–ES–2008–N0262; 81430–1112– to the Carlsbad Fish and Wildlife Office. management provides the plan 0000–F2] Copies of the proposed HCP and EAS also are available for public inspection flexibility, if monitoring indicates Proposed Low Effect Habitat during regular business hours at the changes in management are necessary Conservation for West Colton Terminal Carlsbad Fish and Wildlife Office [see (e.g., threshold levels need to be raised Temporary Ethanol Transloading ADDRESSES]. to meet the conservation goals, as fully Facility, City of Rialto, County of San described in the Agreement). Bernardino, CA Background Public Review and Comments AGENCY: Fish and Wildlife Service, Section 9 of the Act and its The Service has made a preliminary Interior. implementing Federal regulations determination that the proposed ACTION: Notice of availability. prohibit the take of animal species listed Agreement and permit issuance are as endangered or threatened. Take is eligible for categorical exclusion under SUMMARY: West Colton Rail Terminal, defined under the Act as to harass, NEPA. We explain the basis for this LLC (applicant) has applied to the U.S. harm, pursue, hunt, shoot, wound, kill, determination in an Environmental Fish and Wildlife Service (Service) for trap, capture or collect listed animal Action Statement, which also is a 3-year incidental take permit for one species, or attempt to engage in such available for public review at the office covered species pursuant to section conduct (16 U.S.C. 1538). However, listed in the ADDRESSES section above. 10(a)(1)(B) of the Endangered Species under section 10(a) of the Act, the If you wish to comment on the permit Act of 1973, as amended (Act). The Service may issue permits to authorize application or the Agreement, you may application addresses the potential for incidental take of listed species. submit your comments to the address ‘‘take’’ of the endangered Delhi Sands ‘‘Incidental take’’ is defined by the Act listed in the ADDRESSES section of this flower-loving fly (Rhaphiomidas as take that is incidental to, and not the document. Before including your terminatus abdominalis, ‘‘DSF’’) purpose of, carrying out an otherwise address, phone number, e-mail address, associated with construction of an lawful activity. Regulations governing or other personal identifying ethanol unloading facility in the City of incidental take permits for threatened

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and endangered species, respectively, impacted or conserved, and truck traffic DEPARTMENT OF THE INTERIOR are found in the Code of Federal would not be reduced. Regulations at 50 CFR 17.22 and 50 CFR The Service has made a preliminary Fish and Wildlife Service 17.32. determination that approval of the [FWS–R8–ES–2008–0272; 81430–1112– The applicant (West Colton Rail proposed HCP qualifies as a categorical 0000–F2] Terminal, LLC or WCRT) is seeking a exclusion under NEPA, as provided by permit for take of the Delhi Sands the Department of the Interior Manual Proposed Otay Water District Low flower-loving fly during the life of the (516 DM8) and as a ‘‘low-effect’’ plan as Effect Habitat Conservation Plan for permit. This species is referred to as the defined by the Habitat Conservation the Quino Checkerspot Butterfly and ‘‘DSF’’ in the proposed HCP. The DSF Planning Handbook (November 1996). Coastal California Gnatcatcher is restricted to the Delhi Soils Determination of Low-effect Habitat AGENCY: Fish and Wildlife Service, formations within western Riverside Conservation Plans is based on the Interior. and San Bernardino counties in following three criteria: (1) California. Implementation of the proposed HCP ACTION: Notice of availability. The applicant proposes to construct would result in minor or negligible SUMMARY: We, the U. S. Fish and an ethanol unloading facility on 2.1 effects on federally listed, proposed, and Wildlife Service (Service), have received acres of land located between the north candidate species and their habitats; (2) an application from the Otay Water end of Sycamore Street and South Date Implementation of the proposed HCP District (Applicant) for a 15-year Avenue in the City of Rialto, San would result in minor or negligible incidental take permit for two covered Bernardino County, California. effects on other environmental values or species pursuant to section 10(a)(1)(B) Approximately 0.21 acre of the project resources; and (3) Impacts of the of the Endangered Species Act of 1973, site is considered occupied by the DSF, proposed HCP, considered together with as amended (Act). The application and we anticipate that all DSF within the impacts of other past, present and addresses the potential for ‘‘take’’ of the the 0.21 acre area would be lost during reasonably foreseeable similarly situated federally endangered Quino checkerspot project construction. The purpose of the projects, would not result, over time, in butterfly (Euphydryas editha quino) and project is to eliminate truck traffic from cumulative effects to environmental the federally threatened coastal local highways currently resulting from values or resources which would be California gnatcatcher (Polioptila trucking the ethanol from the City of considered significant. californica californica) associated with Carson to the Colton area gasoline Based upon this preliminary the operation and maintenance of the blending terminals. The project will determination, we do not intend to existing recycled water pipeline (the eliminate the over 60-mile truck trip for prepare further NEPA documentation. Otay Force Main) and its access road. A approximately 40 trucks per day and We will consider public comments in conservation program to mitigate for the reduce truck travel to a few thousand making the final determination on project activities would be implemented yards per load. whether to prepare such additional by the Applicant as described in the The applicant proposes to mitigate documentation. Otay Water District Low Effect Habitat impacts to the DSF associated with the Before including your address, phone Conservation Plan for the Quino covered activities by fully implementing number, e-mail address, or other Checkerspot Butterfly and Coastal the HCP. The purpose of the proposed personal identifying information in your California Gnatcatcher (HCP), which HCP’s conservation program is to comment, you should be aware that would be implemented by the promote biological conservation of the your entire comment—including your Applicant. DSF. WCRT proposes to mitigate personal identifying information—may We are requesting comments on the impacts to DSF by contributing to a be made publicly available at any time. HCP and our preliminary determination habitat management endowment for a While you can ask us in your comment that the proposed plan qualifies as a conservation parcel known as the ‘‘Owl to withhold your personal identifying ‘‘low-effect’’ Habitat Conservation Plan, Property’’, which is located northwest of information from public review, we eligible for a categorical exclusion under the intersection of Riverside Avenue cannot guarantee that we will be able to the National Environmental Policy Act and Resource Drive in the City of Rialto. do so. (NEPA) of 1969, as amended. The basis WCRT’s contribution will fully fund an This notice is provided pursuant to for this determination is discussed in endowment for DSF habitat section 10(c) of the Act. We will the Environmental Action Statement management in perpetuity. evaluate the permit application, the (EAS) and Low Effect Screening Form The Proposed Action consists of the proposed HCP, and comments (Screening Form), which is also issuance of an incidental take permit submitted thereon to determine whether available for public review. and implementation of the proposed the application meets the requirements DATES: Written comments should be HCP, which includes measures to of section 10(a) of the Act. If the received on or before November 19, minimize and mitigate impacts of the requirements are met, we will issue a 2008. project on DSF. Three alternatives to the permit to West Colton Rail Terminal, ADDRESSES: Comments should be taking of the listed species under the LLC for the incidental take of the Delhi Proposed Action are considered in the addressed to the Field Supervisor, U.S. Sands flower-loving fly from Fish and Wildlife Service, Carlsbad Fish proposed HCP. Under the Original construction of an ethanol unloading Design Alternative, additional DSF and Wildlife Office, 6010 Hidden Valley facility in the City of Rialto, San Road, Suite 101, Carlsbad, CA 92011. habitat would be impacted at the project Bernardino County, California. site to more efficiently meet the Written comments may be sent by operational goals of the project. Under Dated: October 14, 2008. facsimile to (760) 431–5901. the Alternate Location Alternative, no Jim A. Bartel, FOR FURTHER INFORMATION CONTACT: Ms. DSF habitat would be impacted, but Field Supervisor, Carlsbad Fish and Wildlife Karen Goebel, Assistant Field other environmental impacts would be Office, Carlsbad, California. Supervisor, Carlsbad Fish and Wildlife unavoidable. Under the No Action [FR Doc. E8–24883 Filed 10–17–08; 8:45 am] Office (see ADDRESSES); telephone (760) Alternative, no DSF habitat would be BILLING CODE 4310–55–P 431–9440.

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SUPPLEMENTARY INFORMATION: will be considered permanent impacts. avoiding potential facility- Valve replacement and access road compromising delays. Availability of Documents resurfacing will be conducted within The Service has made a preliminary Individuals wishing copies of the the first year of HCP implementation. determination that approval of the proposed HCP and Screening Form, Activities in subsequent years will proposed HCP qualifies as a categorical which includes the EAS, should entail inspection of the force main, exclusion under NEPA, as provided by immediately contact the Service by maintenance of work areas, and the Department of the Interior Manual telephone at (760) 431–9440 or by letter replacing defective or damaged values. (516 DM 2, Appendix 1 and 516 DM 6, to the Carlsbad Fish and Wildlife Office. Up to 1.28 acres of gnatcatcher and/or Appendix 1) and as a ‘‘low-effect’’ plan Copies of the proposed HCP and Quino habitat may be lost through as defined by the Habitat Conservation Screening Form also are available for implementation of the HCP over 15 Planning Handbook (November 1996). public inspection during regular years. Determination of Low-effect Habitat business hours at the Carlsbad Fish and The Applicant proposes to mitigate Conservation Plans is based on the Wildlife Office (see ADDRESSES). the effects to Quino and gnatcatcher by following three criteria: (1) Background fully implementing the HCP. The HCP Implementation of the proposed HCP emphasizes protection of habitat would result in minor or negligible Section 9 of the Act (16 U.S.C. 1531 through impact avoidance and use of effects on federally listed, proposed, and et seq.) and its implementing Federal operational protocols, designed to avoid candidate species and their habitats; (2) regulations prohibit the take of animal or minimize impacts to Quino and Implementation of the proposed HCP species listed as endangered or gnatcatcher. The Applicant will would result in minor or negligible threatened. Take is defined under the supplement these operational protocols, effects on other environmental values or Act as follows, to harass, harm, pursue, or avoidance and minimization resources; and (3) Impacts of the hunt, shoot, wound, kill, trap, capture, measures, with habitat conservation and proposed HCP, considered together with or collect listed animal species, or to management in the San Miguel Habitat the impacts of other past, present, and attempt to engage in such conduct (16 Management Area (HMA). To mitigate reasonably foreseeable similarly situated U.S.C. 1538). However, under section for permanent impacts, the Applicant projects, would not result, over time, in 10(a) of the Act, the Service may issue will permanently conserve and manage cumulative effects to environmental permits to authorize incidental take of high-quality Quino and gnatcatcher values or resources that would be listed species. ‘‘Incidental take’’ is habitat by expending available credits considered significant. defined by the Act as take that is from the San Miguel HMA. Based upon this preliminary incidental to, and not the purpose of, The Proposed Action consists of the determination, we do not intend to carrying out an otherwise lawful issuance of an incidental take permit prepare further NEPA documentation. activity. Regulations governing and implementation of the proposed We will consider public comments in incidental take permits for threatened HCP, which includes measures to making the final determination on and endangered species, respectively, mitigate impacts of the proposed whether to prepare such additional are found in the Code of Federal activities on Quino and gnatcatcher. documentation. Regulations at 50 CFR 17.22 and 50 CFR Five alternatives to the proposed action Public Review 17.32. are considered in the HCP. Under the The Applicant is seeking a permit for No Action Alternative, no permit would Written comments from interested take of the Quino checkerspot butterfly be issued and the Applicant would parties are welcome to ensure that the and coastal California gnatcatcher avoid take of Quino and gnatcatcher; issues of public concern related to the during the life of the permit. These however, avoidance of impacts would proposed action are identified. species are referred to as the ‘‘Quino’’ not be possible for some of the Comments and materials received will and ‘‘gnatcatcher,’’ respectively, in the Applicant’s activities, which would be available for public inspection, by proposed HCP. preclude some critical activities from appointment, during normal business The Applicant proposes to grade an being completed or require the hours at the office listed in the existing access road located above the Applicant to seek individual take ADDRESSES section of this notice. All Otay Force Main (force main) pipeline authorizations. The other four comments and materials received, and conduct other activities such as alternatives address only implementing including names and addresses, will replacing valves along the pipeline, a single construction component of the become part of the administrative record resurfacing damaged sections of the proposed activities, eliminating an and may be released to the public. access road, clearing vegetation around activity, or deferring the project until a Our practice is to make comments, work areas, and conducting routine larger, multi-agency multiple species including names, home addresses, home inspections and maintenance of the habitat conservation plan could be phone numbers, and e-mail addresses of valves and access road. Work areas and developed. Most of these alternatives respondents, available for public the access road are located within a 30- would provide a piecemeal approach to review. Individual respondents may foot easement on the San Diego National operating and maintaining the force request that we withhold their names Wildlife Refuge. This easement was main and would require additional and/or home addresses, etc., but if you dedicated prior to the area being consultation under the ESA. The wish us to consider withholding this incorporated as a national wildlife proposed HCP provides more information you must state this refuge. All covered activities identified comprehensive coverage of necessary prominently at the beginning of your in the low-effect HCP will occur within activities and conservation of Quino and comments. In addition, you must this easement and new impacts gnatcatcher than either of the other present a rationale for withholding this associated with covered activities will alternatives. In addition, the proposed information. This rationale must not appreciably exceed those currently HCP would be more efficient and timely demonstrate that disclosure would taking place within the easement. Work and would provide the Applicant with constitute a clearly unwarranted areas will be maintained free of long-term predictability concerning the invasion of privacy. Unsupported vegetation for the life of the permit, thus nature of its operations for which assertions will not meet this burden. In all initial vegetation clearing activities incidental takings are permitted, the absence of exceptional,

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documentable circumstances, this FOR FURTHER INFORMATION CONTACT: expand its outreach program. RBFF has information will be released. We will RBFF Project Officer drafted advertising guidelines to always make submissions from [email protected] (e-mail) or (703) determine who can advertise and how organization or businesses, and from 358–2435. the advertising sales will be operated. individuals identifying themselves as SUPPLEMENTARY INFORMATION: Request for Comments representatives of or officials of Recreational boating and fishing organizations or businesses, available participation rates have declined over The U.S. Fish and Wildlife Service is for public inspection in their entirety. the past 5 years. Recreational boating seeking public comment on the draft This notice is provided pursuant to and fishing related activities contribute RBFF advertising guidelines. Comments section 10(c) of the Act. We will to conserving aquatic resources through submitted in response to this notice are evaluate the permit application, the excise taxes collected from sales of a matter of public record. Before proposed HCP, and comments fishing equipment and motorboat fuel including your address, phone number, submitted thereon to determine whether that fund the Federal Aid in Sport Fish e-mail address, or other personal the application meets the requirements Restoration Program. This program, identifying information in your of section 10(a) of the Act. If the coupled with fishing license sales, comment, you should be aware that requirements are met, we will issue a makes up more than 80 percent of the your entire comment—including your permit to the Applicant for the funding for conservation and protection personal identifying information—may incidental take of the Quino checkerspot of aquatic resources in the United be made publicly available at any time. butterfly and coastal California States. To address the declining While you may request that we gnatcatcher associated with the participation of recreational boating and withhold your personal identifying operation and maintenance of the Otay fishing, Congress passed the information from public review, we Force Main within the San Diego Sportfishing and Boating Safety Act of cannot guarantee that we will be able to National Wildlife Refuge located in San 1998, which called for Federal do so. Diego County, California. appropriations to be used for the TakeMeFishing.org Proposed Dated: October 14, 2008. National Outreach and Communication Advertising Guidelines Jim A. Bartel, Program. The Sport Fishing and Boating The Recreational Boating & Fishing Field Supervisor, Carlsbad Fish and Wildlife Partnership Council developed the Foundation (RBFF) strives to make Office, Carlsbad, California. ‘‘Strategic Plan for the National TakeMeFishing.org a valuable resource [FR Doc. E8–24882 Filed 10–17–08; 8:45 am] Outreach and Communication for its audiences, therefore the user BILLING CODE 4310–55–P Program,’’ and the Secretary of the experience is the core of the Web site. Interior approved the Strategic Plan in This experience is continually February 1999. DEPARTMENT OF THE INTERIOR reinforced by its distinct look and feel, RBFF is a nonprofit organization functionality, personality, and utility. created to carry out the National Fish and Wildlife Service Thus everything that exists within Outreach and Communication Program, TakeMeFishing.org should conform and [FWS–R9–EA–2008–N0241; 97600–9424– whose mission is to increase contribute to the overall user 0000–7e] participation in recreational angling and experience, including the advertising. boating and, through those experiences, TakeMeFishing.org Web Site increase the public’s awareness of and Advertising Philosophy Advertising Guidelines appreciation for the need for conserving RBFF is committed to protecting our AGENCY: U.S. Fish and Wildlife Service, and protecting America’s aquatic user experience by keeping the site Interior. natural resources. RBFF is funded clean, uncluttered, and free from ACTION: Notice of availability of through the Sport Fish Restoration and intrusive advertising. We strive to proposed guidelines; request for Boating Trust Fund. This fund is ensure the use of appropriate and comments. composed of Federal taxes collected on tailored messages on our Web site that the sale of motorboat fuel and of excise are based on specific boating and fishing SUMMARY: The Recreational Boating & taxes paid by manufacturers of fishing interests and affiliated with the brands, Fishing Foundation (RBFF) seeks to sell tackle. The U.S. Fish and Wildlife organizations, and businesses that our advertising on its TakeMeFishing.org Service (Service) administers RBFF’s users value. Web site to help generate revenue from funding via a cooperative agreement RBFF provides the following non-Federal funds to expand its between the Service and RBFF, in the guidelines to help you communicate outreach program. RBFF has drafted form of a Memorandum of more effectively with your desired advertising guidelines to determine who Understanding signed by the Service, audience. Please note that all can advertise and how the advertising the Sport Fishing and Boating advertising placed within sales will be operated; we invite the Partnership Council, the Association of TakeMeFishing.org must adhere to these general public and other Federal Fish and Wildlife Agencies, and RBFF. guidelines, and RBFF reserves the right agencies to take this opportunity to The plan, which RBFF was created to to reject any advertising that we deem comment on these guidelines. implement, specifically calls for the contrary to our advertising philosophy DATES: Your comments must be received implementing organization not to be or these guidelines. These guidelines are or postmarked on or before November 4, operated as a ‘‘grants-in-aid’’ also subject to change at any time. 2008. organization. The plan also calls for These guidelines are not intended as ADDRESSES: Send your comments on the RBFF to ‘‘create an industry ‘hard legal advice, but are a general statement proposed Web site advertising dollar’ fund mechanism to promote, of RBFF’s advertising standards. RBFF guidelines to RBFF Project Officer at extend and expand the outreach encourages each advertiser and its 4401 N. Fairfax Drive, MS–3103 AEA, program.’’ In response, RBFF seeks to agency to consult with legal counsel Arlington, VA 22203 (U.S. mail or hand sell advertising on its before seeking to place any display delivery) or [email protected] (e- TakeMeFishing.org Web site to generate advertising on TakeMeFishing.org. mail). revenue from non-Federal funds to Adherence to these guidelines (a) does

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not guarantee acceptance of display or activities that are excessively • Advertising copy must be in logical advertising content for insertion on suggestive or sexual. sentence form and contain TakeMeFishing.org, and (b) is not • Advertisements may not contain, grammatically correct spacing. necessarily sufficient to meet the facilitate, or promote offensive, profane, • Advertisements must use correct standards of local, State, or Federal vulgar, obscene, or inappropriate spelling. laws. language. • Advertisements may not include • Note: In addition to the guidelines below, Advertisements may not contain, unnecessary capitalization (such as facilitate, or promote defamatory, ‘‘FREE’’). Acronyms may be capitalized. all advertising on TakeMeFishing.org must • comply with our Privacy Policy (at http:// libelous, slanderous, and/or unlawful Advertisements may not include www.takemefishing.org/general/privacy- content. excessive repetition. policy) and Disclaimer (at http:// 3. Copy representation: 7. Incentives: • www.takemefishing.org/general/disclaimer). • Advertising copy must directly No advertisement may offer incentives to viewers for submitting 1. Content restrictions: relate to the content on the landing page personal information (cell phone We do not accept advertising from to which it links. numbers, social security numbers, entities debarred or suspended from • Advertising copy must clearly state physical addresses, or e-mail addresses), doing business with the Federal and represent the company, product, or or for performing any other related Government (http://www.epls.gov/). In brand that is being advertised. tasks. addition, we do not accept advertising 4. Copyrights and trademarks: • Advertisements must not include 8. Landing pages/Destination URLs: referencing, facilitating, or promoting • Advertisements that contain a URL any content that may be deemed as the following: or domain in the copy must link to that • infringing upon the rights of any third Liquor, beer, or wine. same URL or domain. • party, including copyright, trademark, Tobacco products. • All users must be sent to the same • privacy, publicity, or other personal or Adult or dating sites with a sexual landing page when an advertisement is proprietary right, or that is deceptive or emphasis. clicked. • Medical or pharmaceutical products fraudulent. • • The advertiser’s landing page must and services. Advertiser must have intellectual match the offer being made in the • Drugs or drug paraphernalia. property rights to the advertising copy • advertisement and must provide Adult products, including adult and images and be permitted to display detailed disclosures as appropriate; in films, magazines, Web sites, toys, or such copy and images as advertising on particular, full terms and conditions of physical/sexual enhancement products. TakeMeFishing.org. the offer must be easily accessible. • Gambling or gambling portals and 5. Downloads: • • Landing pages that generate a pop- educational sites, including without No advertisement is permitted to up (including ‘‘pop-overs’’ and ‘‘pop- limitation, any online casino, sports contain a link, whether directly or unders’’) when a user enters or leaves books, bingo, or poker. indirectly, to a site that contains the page are not allowed. • Lotteries (other than official State software downloads, freeware, or • Advertisements cannot use ‘‘fake’’ lotteries sponsored by a U.S. State, e.g., shareware. • close behavior (i.e., when a user clicks Illinois State Lottery). No advertisement is permitted to the ‘‘close’’ icon on the page, the page • Inflammatory religious content. facilitate or promote (or contain a link should close down and no other • Politically religious agendas and/or to a site that facilitates or promotes): behavior should result). any known associations with hate, (1) Collection of demographic and • Advertisements cannot utilize criminal, and/or terrorist activities. usage information from a user’s ‘‘mouse trapping’’ whereby the • Political content, political agendas, computer without the user’s expressed advertiser does not allow users to use or political issues for commercial use. consent; their browser ‘‘back button’’ and traps • Hate speech, whether directed at an (2) Collection or request of usernames them on their site and/or present individual or a group, and whether or passwords from any user; additional/unexpected behavior (for based upon the race, sex, creed, national (3) Proxying user names or passwords example: another advertisement or origin, religious affiliation, marital for the purpose of automating logins to page). status, sexual orientation, or language of the TakeMeFishing.org Community • No advertisement may require such individual or group. network; viewers clicking on the advertisement to • Web cams or surveillance (4) Any software that (i) ‘‘sneaks’’ submit personal information (cell phone equipment. onto a user’s system and performs numbers, physical addresses, or e-mail • Web-based non-accredited colleges activities hidden to the user; (ii) may addresses) on the landing page in order that offer degrees. alter, harm, disable or replace any to obtain the information promoted in • Ringtones. hardware or software installed on the the advertisement. • Software downloads, freeware, or user’s computer without express • A secure server connection (https) shareware. permission from the user; (iii) is must be used when collecting personal • Scams, illegal activity, and/or bundled as a hidden component of other information from users. illegal contests, pyramid schemes, or software whether free or for fee; (iv) 9. Prices, discounts, and free offers: chain letters. automatically downloads without • No advertisement may be deceptive • Loan products that require upfront RBFF’s express prior approval; (v) or fraudulent about any offer it makes. fees. presents any download dialog boxes • If an advertisement includes a 2. Advertising language and image without a user’s expressed action; or (vi) price, discount, or ‘‘free’’ offer, the content: may violate or infringe upon the destination URL that is referenced must • Provocative images will not be intellectual property rights of any third link to a page that clearly and accurately accepted. party, including copyright, trademark, offers the exact deal displayed in the • Advertising images may not patent, or any other proprietary right. advertisement. contain, facilitate, or promote adult 6. Grammar, spelling, and • If an advertisement includes a content, including nudity, sexual terms, capitalization: price, discount, or ‘‘free’’ offer, the

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advertisement must clearly state what whether to purchase the product or Dated: September 24, 2008. action or set of actions is required to service being offered; Rowan W. Gould, qualify for the offer. • All claims made in an Acting Director. 10. Punctuation and symbols: advertisement have been substantiated [FR Doc. E8–24850 Filed 10–17–08; 8:45 am] • before the advertisement is scheduled to The use of all symbols, numbers, or BILLING CODE 4310–55–P letters must adhere to the true meaning appear on TakeMeFishing.org; of the symbol. • Advertising that includes • Repeated and unnecessary warranties, guarantees, or other types of DEPARTMENT OF THE INTERIOR punctuation or symbols is not assurances to the user complies with all permitted. applicable laws, regulations, or Bureau of Land Management • Symbols may not be used to guidelines regarding such assurances, substitute for letters (e.g., ‘‘$ave’’ including but not limited to those set [F–14873–A, F–14873–A2; AK–965 1410– instead of ‘‘save’’). forth by the Federal Trade Commission KC–P] (‘‘FTC’’); and 11. Rich Media advertisements: Alaska Native Claims Selection • All rich media advertisements, • Users are not deceived into including third-party advertisements, providing personal information without AGENCY: Bureau of Land Management, must be operationally tested prior to the user’s knowledge, under false Interior. pretenses, or to companies who resell, submission for placement on ACTION: Notice of decision approving trade, barter, or otherwise misuse that TakeMeFishing.org. lands for conveyance. • HTML sniffer code must be personal information. implemented in order to detect whether RBFF Rights SUMMARY: As required by 43 CFR a user’s browser is capable of displaying 2650.7(d), notice is hereby given that an the Shockwave Flash file. A backup RBFF reserves the right, but is not appealable decision approving the banner should be displayed if the user under any obligation to: surface and subsurface estates in certain • Review or request changes to any cannot accept Shockwave Flash and is lands for conveyance pursuant to the advertisement scheduled for insertion required for all rich media Alaska Native Claims Settlement Act advertisements. on TakeMeFishing.org; • Accept, retract, or reject, at any will be issued to Kasigluk Inc. The lands • A banner may not produce audio time, any advertisement submitted for are in the vicinity of Kasigluk, Alaska, without user initiation. Once audio placement on TakeMeFishing.org, in its and are located in: begins, there must be a clear ‘‘pause’’ or sole discretion, whether on the basis of ‘‘stop’’ button. Seward Meridian, Alaska these guidelines, advertising format, • An advertisement may not display targeting criteria, or for any other T. 10 N., R. 75 W., false functionality or contain graphics reason; Sec. 15. that simulate interactivity where no • Review any advertisement to Containing approximately 162 acres. such interactivity exists. determine the appropriateness of the T. 11 N., 75 W., 12. Spam: advertisement for the Secs. 19 to 23, inclusive; • No advertisement may contain, Secs. 28 to 32, inclusive. TakeMeFishing.org user audience; or facilitate or promote ‘‘spam’’ or other • Modify these guidelines or their Containing approximately 3,164 acres. advertising or marketing content that standards governing advertising on T. 11 N., R. 76 W., Secs. 19 to 36, inclusive. violates applicable laws, regulations, or TakeMeFishing.org at any time without industry standards. notice. Containing approximately 8,472 acres. 13. Take Me Fishing references: Specifically, RBFF reserves the right T. 7 N., R. 77 W., • Secs. 5 and 6. Advertisements are not permitted to to reject or retract, at any time, any mention or refer to TakeMeFishing.org, advertising deemed to, in RBFF’s sole Containing approximately 970 acres. its site, or its brand in any manner, T. 9 N., R. 77 W., opinion: Secs. 4 to 9, inclusive; including in the title, body, image, or • Be misleading, deceptive, false, or destination URLs. Secs. 16 to 21, inclusive; untrue; Secs. 28 to 33, inclusive. • Advertisements must not use Take • Use ‘‘bait and switch’’ tactics, i.e., Containing approximately 9,808 acres. Me FishingTM logos, trademarks, or site advertising that promotes an terminology (including Anglers’ Legacy T. 10 N., R. 77 W., unavailable product, service, or price as Secs. 3 to 10, inclusive; and other RBFF graphics, logos, designs, a means of luring the user into Secs. 16 to 21, inclusive; or icons). purchasing a different product; Secs. 28 to 33, inclusive. • • TakeMeFishing.org site features Promote or glorify violence, crime, Containing approximately 8,837 acres. may not be emulated. obscenity, the illegal use of weapons, or T. 11 N., R. 77 W., Advertiser Responsibilities to provide instructions on how to ‘‘get Secs. 7 and 9; away’’ with crimes or unlawful activity; Secs. 13 to 36, inclusive. It is the advertiser’s responsibility to • Promote stereotypes, or Containing approximately 13,844 acres. ensure that: inaccurately portray or attack an Aggregating approximately 45,297 acres. • All advertising it seeks to place on individual or group on the basis of age, The subsurface estate in these lands will be TakeMeFishing.org complies with all color, national origin, race, religion, sex, conveyed to Calista Corporation when the applicable Federal, State, and local laws sexual orientation, or handicap; surface estate is conveyed to Kasigluk, Inc. or regulations; • Be offensive or disturbing to users Notice of the decision will also be published • An advertisement does not violate of TakeMeFishing.org, or likely to cause four times in the Tundra Drums. the intellectual property rights of third outrage, general disapproval, or negative DATES: The time limits for filing an parties; opinion within the community; or appeal are: • Offers included in any advertising • Portray minors (or persons who, in 1. Any party claiming a property message include all material terms that RBFF’s opinion, appear to be underage) interest which is adversely affected by an ordinary person would require in in a manner that is sexually suggestive the decision shall have until November making an informed decision about or otherwise age-inappropriate. 19, 2008 to file an appeal.

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2. Parties receiving service of the the Bureau of Land Management or faxed comments should be submitted decision by certified mail shall have 30 Oregon/Washington State Office, by November 4, 2008. days from the date of receipt to file an Portland, Oregon, on September 26, appeal. 2008. J. Paul Loether, Parties who do not file an appeal in Chief, National Register of Historic Places/ Willamette Meridian accordance with the requirements of 43 National Historic Landmarks Program. CFR Part 4, Subpart E, shall be deemed Washington ARKANSAS to have waived their rights. T. 33 N., R. 28 E., accepted August 18, 2008. Cross County ADDRESSES: A copy of the decision may be obtained from: Bureau of Land Oregon New Hope School, 3762 Hwy. 284, Wynne, Management, Alaska State Office, 222 T. 36 S., R. 5 W., accepted August 7, 2008. 08001037. West Seventh Avenue, #13, Anchorage, T. 33 S., R. 2 E., accepted August 20, 2008. Pulaski County T. 33 S., R. 1 E., accepted August 20, 2008. Alaska 99513–7504. East End Methodist Episcopal Church, 2401 T. 20 S., R. 6 W., accepted August 26, 2008. FOR FURTHER INFORMATION, CONTACT: The E. Washington Ave., North Little Rock, T. 40 S., R. 7 W., accepted September 2, Bureau of Land Management by phone 2008. 08001038. at 907–271–5960, or by e-mail at T. 12 S., R. 43 E., accepted September 2, Yell County [email protected]. Persons 2008. who use a telecommunication device Dardanelle Commercial Historic District, (TTD) may call the Federal Information A copy of the plats may be obtained Roughly bounded by Front, Oak, 2nd and Relay Service (FIRS) at 1–800–877– from the Land Office at the Oregon/ Pine Sts., Dardanelle, 08001039. 8330, 24 hours a day, seven days a Washington State Office, Bureau of FLORIDA week, to contact the Bureau of Land Land Management, 333 SW. 1st Avenue, Management. Portland, Oregon 97204, upon required Martin County Cypress Lodge, 18681 SW. Conners Hwy., Linda L. Keskitalo, payment. A person or party who wishes to protest against a survey must file a Port Mayaca, 08001040. Land Law Examiner, Land Transfer Adjudication II. notice that they wish to protest (at the Miami-Dade County above address) with the Oregon/ [FR Doc. E8–24839 Filed 10–17–08; 8:45 am] Normandy Isles Historic District (North Washington State Director, Bureau of BILLING CODE 4310–JA–P Beach Community (1919–1963), MPS) Land Management, Portland, Oregon. Roughly by Normandy Shores Golf Course, For further information contact: Chief, Indian Creek, Biscayne Bay, Rue Versailles, DEPARTMENT OF THE INTERIOR Branch of Geographic Sciences, Bureau 71st., Rue Notre Dame, Miami Beach, of Land Management, (333 SW. 1st 08001041. Bureau of Land Management Avenue) P.O. Box 2965, Portland, IOWA [LLOROR957000–L14200000–BJ000: Oregon 97208. Fayette County HAG09–0003] Dated: October 8, 2008. Fred O’Ferrall, Hobson Block (Iowa’s Main Street Filing of Plats of Survey: Oregon/ Commercial Architecture MPS), 110–114 S. Branch of Lands and Minerals Resources. Washington Vine St., West Union, 08001042. [FR Doc. E8–24837 Filed 10–17–08; 8:45 am] Hancock County AGENCY: U.S. Department of the Interior, BILLING CODE 4310–33–P Bureau of Land Management. Avery Theater, The, 495 State St., Garner, ACTION: Notice. 08001043. DEPARTMENT OF THE INTERIOR MARYLAND SUMMARY: The plats of survey of the following described lands were National Park Service Worcester County officially filed in the Bureau of Land Makemie Memorial Presbyterian Church, 103 National Register of Historic Places; Management Oregon/Washington State Market St., Snow Hill, 08001044. Office, Portland, Oregon, on June 18, Notification of Pending Nominations 2008. and Related Actions MISSISSIPPI Leflore County Willamette Meridian Nominations for the following Washington properties being considered for listing Greenwood Underpass, Main St. between Jackson St. and W. Taft St., Greenwood, T. 23 N., R. 13 W., accepted May 14, 2008. or related actions in the National Register were received by the National 08001045. Oregon Park Service before October 4, 2008. Madison County T. 2 S., R. 6 W., accepted May 21, 2008. Pursuant to section 60.13 of 36 CFR Part Young House, 3463 N. Liberty St., Canton, 60 written comments concerning the 08001046. The plats of survey of the following significance of these properties under described lands were officially filed in the National Register criteria for NEW YORK the Bureau of Land Management evaluation may be forwarded by United Greene County Oregon/Washington State Office, States Postal Service to the National Portland, Oregon, on August 19, 2008. Tannersville Main Street Historic District, Register of Historic Places, National 5898–6144 Main St., 10 Spring St., Willamette Meridian Park Service, 1849 C St., NW., 2280, Tannersville, 08001047. Washington Washington, DC 20240; by all other carriers, National Register of Historic New York County T. 12 N., R. 19 E., accepted July 2, 2008. Places, National Park Service,1201 Eye General Society of Mechanics and The plats of survey of the following St., NW., 8th floor, Washington, DC Tradesmen, 20 W. 44th St., New York, described lands were officially filed in 20005; or by fax, 202–371–6447. Written 08001048.

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TENNESSEE MISSISSIPPI Reclamation has taken steps to Bledsoe County Harrison County minimize any impacts on an individual’s privacy and to minimize Bledsoe County Jail, 128 Frazier St., Bailey House, 1333 E. Beach Blvd., Biloxi, the amount of personal data contained Pikeville, 08001049. 84002160. Biloxi’s Tivoli Hotel, 863 E. Beach Dr., within the system. All information goes VIRGINIA Biloxi, 84002167. through a hierarchical review process to Charlotte County Church of the Redeemer, Bellman St., Biloxi, ensure that only relevant data is entered 84002177. into the system. Keysville Railroad Station, Railroad Ave., Hermann House, 523 E. Beach Blvd., Biloxi, The system will be effective as Keysville, 08001050. 84002169. proposed at the end of the comment Fauquier County Randall’s Tavern, 919 Beach Blvd., period unless comments are received Pascagoula, 91001807. Cromwell’s Run Rural Historic District which would require a contrary (Boundary Increase), Bounded by Fauquier [FR Doc. E8–24828 Filed 10–17–08; 8:45 am] determination. Reclamation will publish County line on the N., existing Cromwell’s BILLING CODE 4310–70–P a revised notice if changes are made Run Rural Historic District on the E., based upon a review of comments Atoka, 08001051. received. Fredericksburg Independent City DEPARTMENT OF THE INTERIOR Before including your address, phone number, e-mail address, or other Rowe House, 801 Hanover St., Bureau of Reclamation Fredericksburg, 08001052. personal identifying information in your comment, you should be aware that Galax Independent City Privacy Act of 1974, as Amended; System of Records your entire comment—including your Galax Commercial Historic District personal identifying information—may (Boundary Increase), 107 West Oldtown AGENCY: Bureau of Reclamation, be made publicly available at any time. St., Galax, 08001053. Interior. While you can ask us in your comment Lynchburg Independent City ACTION: Notice of a new system of to withhold your personal identifying Kemper Street Industrial Historic District, records and proposal to exempt the information from public review, we 1300–1500 (odd) Kemper St., 1200–1300 system from certain Privacy Act cannot guarantee that we will be able to (even) Campbell Ave., Lynchburg, requirements. do so. 08001054. A copy of the system notice for SUMMARY: The Department of the Interior—WBR–50, Reclamation Law Pittsylvania County Interior (DOI) is issuing public notice of Enforcement Management Information Seven Springs Farm, 224 Meadow View Ct., its intent to establish a system of records System (RLEMIS), follows. Danville, 08001056. in its inventory of records systems Dated: September 15, 2008 Prince William County subject to the Privacy Act of 1974 (5 U.S.C. 552a). The Department is also Dave Achterberg, Camp French (Campaigns for the Control of Director, Security, Safety and Law Navigation on the Lower Potomac River, issuing notice of its intent to exempt the system from specific Privacy Act Enforcement, Bureau of Reclamation, Denver, 1861–1862, Virginia, Maryland, and DC, Colorado. MPS), Address Restricted, Marine Corps requirements, as described within the Base, Quantico, 08001055. section titled ‘‘Exemptions claimed for INTERIOR—WBR–50 Rising Hill Camp (Campaigns for the Control the system.’’ The system of records is of Navigation on the Lower Potomac River, called Interior—WBR–50, Reclamation SYSTEM NAME: 1861–1862, Virginia, Maryland, and DC, Law Enforcement Management Reclamation Law Enforcement MPS), Address Restricted, Marine Corps Information System (RLEMIS). Management Information System Base, Quantico, 08001057. DATES: Comments received on or before (RLEMIS). Southampton County December 1, 2008 will be considered. SYSTEM LOCATION: Neaton-Powell House, 32142 South Main St., ADDRESSES: Comments on this proposed Bureau of Reclamation (Reclamation)/ Boykins, 08001058. system may be submitted to the Bureau U.S. Fish and Wildlife Service, Offices Stafford County of Reclamation, Attention: Casey Snyder of Law Enforcement, 755 Parfet, Suite (84–21300), Denver Federal Center, Tennessee Camp (Campaigns for the Control 230, Lakewood, Colorado 80225. of Navigation on the Lower Potomac River, Building 67, or P.O. Box 25007, Denver, CATEGORIES OF INDIVIDUALS COVERED BY THE 1861–1862, Virginia, Maryland, and DC, CO 80225. Comments may also be SYSTEM: MPS), Address Restricted, Marine Corps submitted by e-mail to Base, Quantico, 08001059. [email protected]. The categories of individuals covered by the system are: Law enforcement FOR FURTHER INFORMATION CONTACT: WISCONSIN personnel, official foreign visitors, Steven J. Jackson, Threat Manager, Wood County potential and known subjects of Office of Law Enforcement, Bureau of incidents and suspicious activities. Roddis, Hamilton and Catherine, House, Reclamation, 303–445–2883. 1108 E. 4th St., Marshfield, 08001060. SUPPLEMENTARY INFORMATION: The CATEGORIES OF RECORDS IN THE SYSTEM: WYOMING primary purpose of the system is for the Records maintained on criminal Weston County Bureau of Reclamation’s (Reclamation) activity and intelligence information Office of Security, Safety, and Law covered by the system include, but are Newcastle Commercial District, Bounded by Burlington Northern Santa-Fe Railroad Enforcement, Office of Law Enforcement not limited to, the following data fields: tracks and West Main St., Newcastle, to maintain a database in both paper Subject name; personal identifiers (such 08001061. and electronic media relevant to as Social Security number, date of birth, Toomey’s Mills, 500 W. Main St., Newcastle, information received and collected as passport number); physical 08001062. part of investigations, incidents, and characteristics (such as sex, eye color, Request for removal has been made for the suspicious activities involving weight); contact information (such as following resources: Reclamation. address, telephone number, employer);

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and information about the incident or DISCLOSURES: retention of an employee, contractor, investigation (such as case agent, source DISCLOSURES OUTSIDE THE DEPARTMENT OF THE etc., or the issuance of a security reliability, activity date, narrative, INTERIOR MAY BE MADE WITHOUT THE clearance, license, contract, grant, or disposition, vehicle information, PERMISSION OF THE SUBJECT OF THE RECORDS other benefit. impacted Reclamation facilities). IF THE RECORDS WILL BE DISCLOSED: (6) To representatives of the National (1)(a) To any of the following entities Archives and Records Administration to AUTHORITY FOR MAINTENANCE OF THE SYSTEM: or individuals, when the circumstances conduct records management 5 U.S.C. 301; 40 U.S.C. 486; 44 U.S.C. set forth in paragraph (b) are met: inspections under the authority of 44 3101; Public Law 107–69; 43 U.S.C. (i) The U.S. Department of Justice U.S.C. 2903 and 2904. 373b and 373c; Presidential (DOJ); (7) To State and local governments Memorandum on Upgrading Security at (ii) A court or an adjudicative or other and tribal organizations to provide Federal Facilities, June 28, 1995; administrative body; information needed in response to court Homeland Security Presidential (iii) A party in litigation before a court order and/or discovery purposes related Directives, HSPD 7 and 12; USA or an adjudicative or other to litigation. administrative body; or PATRIOT ACT of 2001, USA PATRIOT (iv) Any DOI employee acting in his (8) To an expert, consultant, or Improvement Act of 2005, E.O. 1233, as or her individual capacity if DOI or DOJ contractor (including employees of the amended, E.O. 13383, DHS MOU has agreed to represent that employee or contractor) of DOI that performs, on Concerning Information Sharing, pay for private representation of the DOI’s behalf, services requiring access Homeland Security Act of 2002, employee; to these records. National Security Act of 1947 as (b) When: (9) To appropriate agencies, entities, amended, Intelligence Reform and (i) One of the following is a party to and persons when: Terrorism Prevention Act of 2004 and the proceeding or has an interest in the 28 CFR part 23. (a) It is determined that the security proceeding: or confidentiality of information in the (A) DOI or any component of DOI; PURPOSE(S): system of records has been (B) Any other Federal agency compromised; and The primary purpose of the system is appearing before the Office of Hearings to ensure the safety and security of and Appeals; (b) DOI has determined that as a result Reclamation’s employees, the general (C) Any DOI employee acting in his or of the suspected or confirmed public, as well as Reclamation facilities, her official capacity; compromise there is a risk of harm to lands, waters, and physical and cyber (D) Any DOI employee acting in his economic or property interest, identity infrastructure. RLEMIS collects, stores, or her individual capacity if DOI or DOJ theft or fraud, or harm to the security or and allows for retrieval of historical and has agreed to represent that employee or integrity of this system or other systems current information on all incidents/ pay for private representation of the or programs (whether it is maintained investigations reported at Reclamation employee; by DOI or another agency or entity) that facilities, and maintains a record of (E) The United States, when DOJ rely upon the compromised official foreign visitors to Reclamation determines that DOI is likely to be information; and facilities. The database maintained is affected by the proceeding; and (c) The disclosure is made to such relevant to information received by, and (ii) DOI deems the disclosure to be: agencies, entities, and persons who are collected as part of, investigations and (A) Relevant and necessary to the reasonably necessary to assist in inquiries conducted by Reclamation’s proceeding; and connection with DOI’s efforts to respond Office of Law Enforcement. RLEMIS is (B) Compatible with the purpose for to the suspected or confirmed a secure system which is completely which the records were compiled. compromise and prevent, minimize, or independent from other systems. (2) To a congressional office in remedy such harm. response to a written inquiry regarding (10) Pursuant to 5 U.S.C. 552a(b)(12), ROUTINE USES OF RECORDS MAINTAINED IN THE an individual included in the RLEMIS records can be disclosed to consumer SYSTEM, INCLUDING CATEGORIES OF USERS AND database, or the heir of such individual reporting agencies as they are defined in THE PURPOSES OF SUCH USES: if the individual is deceased. the Fair Credit Reporting Act. (3) To appropriate Federal, State, The primary use of records stored in local, or foreign law enforcement or RELEASE OF INFORMATION: RLEMIS is for investigative/analytical intelligence agencies responsible for purposes. RLEMIS ensures investigating or prosecuting the (a) The release of information under accountability related to the systematic violation of or for enforcing or the above circumstances should only management, analysis, and reporting of implementing a statute, rule, regulation, occur when it will not: information related to law enforcement. order or license, when DOI becomes (i) Interfere with ongoing law This provides Reclamation’s Office of aware of a violation or potential enforcement proceedings; Law Enforcement with an efficient law violation of a statute, rule, regulation, enforcement reporting and intelligence (ii) Risk the health or safety of an order, or license. individual; or system. (4) To an official of another Federal RLEMIS will enable authorized agency to provide information needed (iii) Reveal the identity of an Reclamation personnel to: in the performance of official duties informant or witness that has received • related to reconciling or reconstructing an explicit assurance of confidentiality Capture, integrate, and share law from the U.S. Government. enforcement and related information data files, in support of the functions for from multiple sources. which the records were collected and (b) Social Security Numbers should • maintained. not be released under these Meet reporting requirements. (5) To Federal, State, or local agencies circumstances unless the Social • Assist with analysis and that have requested information relevant Security Number belongs to the prioritization of protection efforts. or necessary to the hiring, firing, or individual requester.

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POLICIES AND PRACTICES FOR STORING, SYSTEM MANAGER(S) AND ADDRESS: compromise an investigation; endanger RETRIEVING, ACCESSING, RETAINING, AND Steven J. Jackson, Threat Manager, the physical safety of confidential DISPOSING OF RECORDS IN THE SYSTEM: Office of Law Enforcement (84–42000), sources, witnesses, and law enforcement STORAGE: Bureau of Reclamation, P.O. Box 25007, personnel, as well as their families; lead to the improper influencing of Records may be stored both in folders Denver, Colorado 80225–0007. witnesses, the destruction of evidence, in paper form and in computer systems RECORD SOURCE CATEGORIES: or the fabrication of testimony; and in electronic form. The main storage for Incident information is obtained from disclose investigative techniques and the system will be electronic records subjects, complainants, witnesses, procedures. In addition, granting access contained in the RLEMIS database. The official respondents, and investigating to such information could disclose records stored in RLEMIS are officials. classified, security-sensitive, or maintained on a stand alone server that EXEMPTIONS CLAIMED FOR THE SYSTEM: confidential information and could is provided with physical security and constitute an unwarranted invasion of Under the general exemption are not retrievable without a username the personal privacy of others. and password. Paper records are stored authority provided by 5 U.S.C. (3) 5 U.S.C. 552a(e)(1). The in locked cabinets in a room requiring 552a(j)(2), the DOI has adopted a application of this provision could both proximity card and pass-code regulation, 43 CFR 2.79(a), which impair investigations and law access. After hours, the storage space is exempts this system of records from the enforcement, because it is not always locked and alarmed. Law enforcement provisions of 5 U.S.C. 552a. The records possible to determine the relevance or response is available for both the storage and reports contained in RLEMIS are necessity of specific information in the space and server. exempted, pursuant to 5 U.S.C. early stages of an investigation. 552a(j)(2), from Privacy Act subsections RETRIEVABILITY: Relevance and necessity are often (c)(3) and (c)(4); (d); (e)(1) through (e)(3), questions of judgment and timing, and Records are retrievable by name, (e)(4)(G) through (e)(4)(I), (e)(5), (e)(8); it is only after the information is personal identifiers (date of birth, Social (f); and (g). This system of records is evaluated that the relevance and Security Number, address, etc.), also exempt from the portions of the necessity of such information can be organization information (name and regulations in 43 CFR part 2, subpart G, established. In addition, during the address), vehicle type and license, which implement the above 5 U.S.C. course of the investigation, the incident type and location, case agent, 552a subsections. investigator may obtain information incident/investigation status (open, Reasons for exemptions: which is incidental to the main purpose closed, etc.), date, and foreign visitor Reclamation’s RLEMIS systems of of the investigation but which may trip information (date, citizenship, records are exempted from the above relate to matters under the investigative location, etc.). provisions of the Privacy Act for the jurisdiction of another agency. Such following reasons: information cannot readily be SAFEGUARDS: (1) 5 U.S.C. 552a(c)(3). This section segregated. Furthermore, during the Records are maintained with requires an agency to make the course of the investigation, an safeguards meeting the requirements of accounting of each disclosure of records investigator may obtain information 43 CFR 2.51 for manual and available to the individual named in the concerning the violation of laws outside computerized records. The records are record upon request. Release of the scope of the investigator’s accessible to Reclamation personnel on accounting of disclosures would alert jurisdiction. In the interest of effective a need-to-know basis and to those the subjects of an investigation to the law enforcement, Reclamation whose official duties require such existence of the investigation and the investigators should retain this access. Disclosure of information fact that they are subjects of the information, since it can aid in through remote terminals is restricted investigation. The release of such establishing patterns of criminal activity through the use of passwords and information to the subjects of an and can provide valuable leads for other username combinations, and sign-on investigation would provide them with law enforcement agencies. protocols, which are periodically significant information concerning the (4) 5 U.S.C. 552a(e)(2). The changed. The related Privacy Impact nature of the investigation, and could application of this provision could Assessment has been completed on seriously impede or compromise the impair investigations and law RLEMIS. The Information Security Plan investigation, endanger the physical enforcement by alerting the subject of an establishes access controls and safety of confidential sources, witnesses investigation of the existence of the safeguarded measures to protect the and their families, and lead to the investigation, enabling the subject to information of individuals. All improper influencing of witnesses, the avoid detection or apprehension, to individuals using the database are destruction of evidence, or the influence witnesses improperly, to required to log off the password fabrication of testimony. destroy evidence, or to fabricate protected file server and computers at (2) 5 U.S.C. 552a(c)(4); (d); (e)(4)(G) testimony. In addition, in certain the end of each day. Manual and and (e)(4)(H); (f); and (g). Granting circumstances, the subject of an electronic records are maintained in access to records in RLEMIS could investigation cannot be required to conformity with Office of Management inform the subject of an investigation of provide information to investigators, and Budget and Departmental an actual or potential criminal violation and information must be collected from Guidelines reflecting the of the existence of that investigation, of other sources. Furthermore, it is often implementation of the Federal the nature and scope of the information necessary to collect information from Information Security Management Act. and evidence obtained, of the identity of sources other than the subject of the confidential sources, witnesses, and law investigation to verify the accuracy of RETENTION AND DISPOSAL: enforcement personnel, and could the evidence collected. Records are retained and disposed of provide information to enable the (5) 5 U.S.C. 552a(e)(3). This section according to various law enforcement subject to avoid detection or requires an agency to inform each and security legislation and 28 CFR part apprehension. Granting access to such person whom it asks to supply 23. information could seriously impede or information, on a form that can be

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retained by the person, of the authority INTERNATIONAL TRADE opinion, the Court issued an order which the information is sought and COMMISSION instructing the Commission to (1) whether disclosure is mandatory or ‘‘conduct a Bratsk analysis of non- [Investigation Nos. 731–TA–394–A & 399– subject imports as outlined in this voluntary; of the principal purposes for A (Second Review) (Remand)] which the information is intended to be opinion;’’(2) ‘‘reassess supply used; of the routine uses which may be Ball Bearings From Japan and the conditions within the domestic made of the information; and the effects United Kingdom industry,’’ i.e., the industry’s on the person, if any, of not providing restructuring efforts during the period of all or any part of the requested AGENCY: United States International review, and (3) ‘‘reexamine its findings information. The application of this Trade Commission. with regard to likely impact and its provision could provide the subject of ACTION: Notice of remand proceedings. decision to cumulate imports from the an investigation with substantial United Kingdom in light of changes in information about the nature of that SUMMARY: The U.S. International Trade its determinations that may result as a investigation, which could interfere Commission (‘‘Commission’’) hereby consequence of the foregoing remand with the investigation. Moreover, gives notice of the court-ordered remand instructions.’’ providing such information to the of its affirmative determinations in the Participation in the proceeding.— subject of an investigation could five-year reviews of the antidumping Only those persons who were interested seriously impede or compromise an orders on ball bearings from Japan and parties to the reviews (i.e., persons undercover investigation by revealing the United Kingdom. For further listed on the Commission Secretary’s its existence and could endanger the information concerning the conduct of service list) and parties to the appeal physical safety of confidential sources, this proceeding and rules of general may participate in the remand witnesses, and investigators by application, consult the Commission’s proceeding. Such persons need not revealing their identities. Rules of Practice and Procedure, part make any additional filings with the 201, subparts A through E (19 CFR part Commission to participate in the (6) 5 U.S.C. 552a(e)(4)(I). The 201), and part 207, subpart A (19 CFR remand proceeding. Business application of this section could part 207). proprietary information (‘‘BPI’’) referred disclose investigative techniques and DATES: Effective Date: October 8, 2008. to during the remand proceeding will be procedures and cause sources to refrain governed, as appropriate, by the from giving such information because of FOR FURTHER INFORMATION CONTACT: Russell Duncan, Office of Investigations, administrative protective order issued fear of reprisal, or fear of breach of in the reviews. promise(s) of anonymity and telephone 202–708–4727, or David Goldfine, Office of General Counsel, Written submissions.—The confidentiality. This could compromise Commission is re-opening the record in Reclamation’s ability to conduct telephone 202–708–5452, U.S. International Trade Commission, 500 E this proceeding to obtain information to investigations and to identify, detect conduct a Bratsk analysis of non-subject and apprehend violators. Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain imports as outlined in the Court’s (7) 5 U.S.C. 552a(e)(5). This section information on this matter by contacting opinion. The Commission will permit requires an agency to maintain its the Commission’s TDD terminal on 202– the parties to file comments pertaining records with such accuracy, relevance, 205–1810. Persons with mobility to the specific issues that are the subject timeliness, and completeness as is impairments who will need special of the Court’s remand instructions and, reasonably necessary to assure fairness assistance in gaining access to the in this regard, may comment on the new to the individual in making any Commission should contact the Office information obtained on remand. Comments should be limited to no more determination about the individual. In of the Secretary at 202–205–2000. than fifteen (15) double-spaced and collecting information for criminal law General information concerning the single-sided pages of textual material. enforcement purposes, it is not possible Commission may also be obtained by The parties may not themselves submit to determine in advance what accessing its Internet server (http:// any new factual information in their information is accurate, relevant, timely, www.usitc.gov). The public record of comments and may not address any and complete. Material that may seem investigation Nos. 731–TA–340 E & H issue other than those that are the unrelated, irrelevant, or incomplete may be viewed on the Commission’s subject of the Court’s remand when collected may take on added electronic docket (‘‘EDIS’’) at http:// instructions. Any such comments must meaning or significance as the edis.usitc.gov. investigation progresses. The be filed with the Commission no later restrictions of this provision could SUPPLEMENTARY INFORMATION: than November 28, 2008. interfere with the preparation of a Background.—In June 2006, the All written submissions must conform complete investigative report, thereby Commission determined that revocation with the provisions of section 201.8 of impeding effective law enforcement. of the antidumping duty orders on ball the Commission’s rules; any bearings from France, Germany, Italy, (8) 5 U.S.C. 552a(e)(8). This section submissions that contain BPI must also Japan, and the United Kingdom would requires an agency to make reasonable conform with the requirements of be likely to lead to continuation or efforts to serve notice on an individual sections 201.6, 207.3, and 207.7 of the recurrence of material injury to an when any record on the individual is Commission’s rules. The Commission’s industry in the United States within a made available to any person under rules do not authorize filing of reasonably foreseeable time. The compulsory legal process when that submissions with the Secretary by Commission’s determinations for Japan process becomes a matter of public facsimile or electronic means, except to and the United Kingdom were appealed record. Complying with this provision the extent permitted by section 201.8 of to the Court of International Trade. On could prematurely reveal an ongoing the Commission’s rules, as amended, 67 September 9, 2008, the Court issued a criminal investigation to the subject of FR 68036 (Nov. 8, 2002). decision remanding the matter to the In accordance with sections 201.16(c) the investigation. Commission for further proceedings. and 207.3 of the Commission’s rules, [FR Doc. E8–24836 Filed 10–17–08; 8:45 am] NSK v. United States, Slip Op. 08–95 each document filed by a party to the BILLING CODE 4310–MN–P (Ct. Int’l Trade, Sept. 9, 2008). In its investigation must be served on all other

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parties to the investigation (as identified assistance in gaining access to the subparts A, D, E, and F (19 CFR part by either the public or BPI service list), Commission should contact the Office 207). and a certificate of service must be of the Secretary at 202–205–2000. DATES: Effective Date: October 6, 2008. timely filed. The Secretary will not General information concerning the FOR FURTHER INFORMATION CONTACT: accept a document for filing without a Commission may also be obtained by Olympia DeRosa Hand (202–205–3182), certificate of service. accessing its Internet server (http:// Office of Investigations, U.S. Parties are also advised to consult www.usitc.gov). The public record for International Trade Commission, 500 E with the Commission’s Rules of Practice this review may be viewed on the Street, SW., Washington, DC 20436. and Procedure, part 201, subparts A Commission’s electronic docket (EDIS) Hearing-impaired persons can obtain through E (19 CFR part 201), and part at http://edis.usitc.gov. information on this matter by contacting 207, subpart A (19 CFR part 207) for SUPPLEMENTARY INFORMATION: On the Commission’s TDD terminal on 202– provisions of general applicability October 6, 2008, the Commission 205–1810. Persons with mobility concerning written submissions to the determined that it should proceed to a impairments who will need special Commission. full review in the subject five-year assistance in gaining access to the By order of the Commission. review pursuant to section 751(c)(5) of Commission should contact the Office Issued: October 14, 2008 the Act. The Commission found that of the Secretary at 202–205–2000. Marilyn R. Abbott, both the domestic and respondent General information concerning the Secretary to the Commission. interested party group responses to its Commission may also be obtained by [FR Doc. E8–24890 Filed 10–17–08; 8:45 am] notice of institution (73 FR 37487, July accessing its Internet server (http:// BILLING CODE 7020–02–P 1, 2008) were adequate. A record of the www.usitc.gov). The public record for Commissioners’ votes, the this review may be viewed on the Commission’s statement on adequacy, Commission’s electronic docket (EDIS) INTERNATIONAL TRADE and any individual Commissioner’s at http://edis.usitc.gov. COMMISSION statements will be available from the SUPPLEMENTARY INFORMATION: Office of the Secretary and at the [Investigation No. 731–TA–1012 (Review)] Background.—On October 6, 2008, Commission’s Web site. the Commission determined that the Certain Frozen Fish Fillets From Authority: This review is being conducted domestic interested party group Vietnam under authority of title VII of the Tariff Act response to its notice of institution (73 of 1930; this notice is published pursuant to FR 37489, July 1, 2008) of the subject AGENCY: United States International section 207.62 of the Commission’s rules. five-year review was adequate and that Trade Commission. By order of the Commission. the respondent interested party group ACTION: Notice of Commission Issued: October 14, 2008. response was inadequate. The determination to conduct a full five-year Marilyn R. Abbott, Commission did not find any other review concerning the antidumping circumstances that would warrant duty order on certain frozen fish fillets Secretary to the Commission. conducting a full review.1 Accordingly, from Vietnam. [FR Doc. E8–24894 Filed 10–17–08; 8:45 am] the Commission determined that it BILLING CODE 7020–02–P would conduct an expedited review SUMMARY: The Commission hereby gives pursuant to section 751(c)(3) of the Act. notice that it will proceed with a full Staff report.—A staff report review pursuant to section 751(c)(5) of INTERNATIONAL TRADE containing information concerning the the Tariff Act of 1930 (19 U.S.C. COMMISSION subject matter of the review will be 1675(c)(5)) to determine whether [Investigation No. 731–TA–752 (Second placed in the nonpublic record on revocation of the antidumping duty Review)] October 30, 2008, and made available to order on certain frozen fish fillets from persons on the Administrative Vietnam would be likely to lead to Crawfish Tail Meat From China Protective Order service list for this continuation or recurrence of material review. A public version will be issued injury within a reasonably foreseeable AGENCY: United States International Trade Commission. thereafter, pursuant to section time. A schedule for the review will be 207.62(d)(4) of the Commission’s rules. ACTION: established and announced at a later Scheduling of an expedited five- Written submissions.—As provided in date. For further information concerning year review concerning the antidumping section 207.62(d) of the Commission’s the conduct of this review and rules of duty order on crawfish tail meat from rules, interested parties that are parties general application, consult the China. to the review and that have provided Commission’s Rules of Practice and SUMMARY: The Commission hereby gives individually adequate responses to the Procedure, part 201, subparts A through notice of the scheduling of an expedited notice of institution,2 and any party E (19 CFR part 201), and part 207, review pursuant to section 751(c)(3) of other than an interested party to the subparts A, D, E, and F (19 CFR part the Tariff Act of 1930 (19 U.S.C. review, may file written comments with 207). 1675(c)(3)) (the Act) to determine the Secretary on what determination the DATES: Effective Date: October 6, 2008. whether revocation of the antidumping Commission should reach in the review. FOR FURTHER INFORMATION CONTACT: duty order on crawfish tail meat from Comments are due on or before Mary Messer (202–205–3193), Office of China would be likely to lead to Investigations, U.S. International Trade continuation or recurrence of material 1 A record of the Commissioners’ votes, the Commission’s statement on adequacy, and any Commission, 500 E Street, SW., injury within a reasonably foreseeable individual Commissioner’s statements will be Washington, DC 20436. Hearing- time. For further information available from the Office of the Secretary and at the impaired persons can obtain concerning the conduct of this review Commission’s Web site. information on this matter by contacting and rules of general application, consult 2 The Commission has found the responses submitted by the Crawfish Processors Alliance to be the Commission’s TDD terminal on 202– the Commission’s Rules of Practice and individually adequate. Comments from other 205–1810. Persons with mobility Procedure, part 201, subparts A through interested parties will not be accepted (see 19 CFR impairments who will need special E (19 CFR part 201), and part 207, 207.62(d)(2)).

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November 5, 2008 and may not contain opportunity to comment on proposed proposed information collection request new factual information. Any person and/or continuing collections of discussed above in the Background who is neither a party to the five-year information in accordance with the section of this notice. OMB approval for review nor an interested party may Paperwork Reduction Act of 1995 (PRA) this collection of information is submit a brief written statement (which [44 U.S.C. 3505(c)(2)(A)]. The program currently scheduled to expire on shall not contain any new factual helps to ensure that requested data can January 31, 2009. This notice requests information) pertinent to the review by be provided in the desired format, extended approval from OMB for the November 5, 2008. However, should the reporting burden (time and financial collection of information required for Department of Commerce extend the resources) is minimized, collection locating information on the GovBenefits time limit for its completion of the final instruments are clearly understood, and Web site. Interested parties are results of its review, the deadline for the impact of the collection encouraged to provide comments to the comments (which may not contain new requirements on respondents can be individual listed in the ADDRESSES factual information) on Commerce’s properly assessed. section above. final results is three business days after DATES: Written comments must be III. Desired Focus of Comments the issuance of Commerce’s results. If submitted by December 12, 2008. comments contain business proprietary ADDRESSES: A copy of the ICR and The Department is particularly information (BPI), they must conform supporting documentation as submitted interested in comments which: with the requirements of sections 201.6, to the Office of Management and Budget • Evaluate whether the proposed 207.3, and 207.7 of the Commission’s (OMB) can be obtained by contacting collection of information is necessary rules. The Commission’s rules do not the Department of Labor. To obtain for the proper performance of the authorize filing of submissions with the copies, contact Amy Hobby on 202– functions of the agency, including Secretary by facsimile or electronic 693–4553 (this is not a toll-free number) whether the information will have means, except to the extent permitted by or e-mail: [email protected]. Send practical utility; section 201.8 of the Commission’s rules, • as amended, 67 FR 68036 (November 8, comments regarding this proposed Evaluate the accuracy of the 2002). Even where electronic filing of a collection of information, including agency’s estimate of the burden of the document is permitted, certain suggestions for reducing the burden to proposed collection of information, documents must also be filed in paper the U.S. Department of Labor, including the validity of the form, as specified in section II (C) of the GovBenefits Office, FPB, Room N–4309, methodology and assumptions used; Commission’s Handbook on Electronic Washington, DC 20210. • Enhance the quality, utility, and Filing Procedures, 67 FR 68168, 68173 SUPPLEMENTARY INFORMATION: clarity of the information to be (November 8, 2002). I. Background collected; and In accordance with sections 201.16(c) • The President’s Management Agenda Minimize the burden of the and 207.3 of the rules, each document collection of information on those who filed by a party to the review must be for E-Government (February 27, 2002) sets forth a strategy for simplifying the are to respond, including through the served on all other parties to the review use of appropriate automated, (as identified by either the public or BPI delivery of services to citizens. The President’s agenda outlines a Federal electronic, mechanical, or other service list), and a certificate of service technological collection techniques or must be timely filed. The Secretary will EGovernment Enterprise Architecture that will transition the management and other forms of information technology, not accept a document for filing without e.g., permitting electronic submission of a certificate of service. delivery of government services from a bureaucracy-centered to a citizen responses. Authority: This review is being conducted Agency: Office of the Secretary. under authority of title VII of the Tariff Act centered paradigm. To this end, the of 1930; this notice is published pursuant to Department of Labor serves as the Type of Review: Revision of an section 207.62 of the Commission’s rules. managing partner of the existing OMB Control 1290–0003. Administration’s ‘‘GovBenefits’’ strategy By order of the Commission. Title of Collection: Information for assisting citizens in identifying and Issued: October 14, 2008. Collection Plan for GovBenefits. locating information on benefits OMB Control Number: 1290–0003. Marilyn R. Abbott, sponsored by the Federal government Affected Public: Individuals or Secretary to the Commission. and State governments. This tool will households, not for-profit institutions. [FR Doc. E8–24891 Filed 10–17–08; 8:45 am] greatly reduce the burden on citizens BILLING CODE 7020–02–P attempting to locate services available Estimated Number of Respondents: from many different government 6,345,715. agencies by providing one-stop access to Frequency: On occasion. DEPARTMENT OF LABOR information on obtaining those services. Total Estimated Annual Responses: Respondents answer a series of 6,345,715. Office of the Secretary questions to the extent necessary for Estimated Average Time per locating relevant information on Federal Proposed Collection of Information; Response: 5.5 minutes. benefits. Responses are used by the Comment Request Estimated Total Annual Burden respondent to expedite the Hours: 581,691 hours. ACTION: identification and retrieval of sought Notice of an opportunity for Total Estimated Annual Cost Burden: public comment. after information and resources pertaining to the benefits sponsored by $0. SUMMARY: The Department of Labor, as the Federal government. Comments submitted in response to part of its continuing effort to reduce this notice will be summarized and may paperwork and respondent burden, II. Current Action be included in the request for OMB conducts a pre-clearance consultation Pursuant to the PRA implementing approval of the final information program to provide the general public regulations at 5 CFR 1320.8(d)(1), this collection request. The comments will and Federal agencies with an notice requests comments on the become a matter of public record.

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Signed at Washington, DC, this 14th day of Committee was established to advance individual study topics for the full October, 2008. Job Corps’ new vision for student Advisory Council’s review, acceptance, Edward C. Hugler, achievement aimed at 21st century high- and presentation to the Secretary of Deputy Assistant Secretary for growth employment. This Committee Labor. Administration and Management. will also evaluate Job Corps program In addition, the Working Groups [FR Doc. E8–24787 Filed 10–17–08; 8:45 am] characteristics, including its purpose, assigned by the Advisory Council to BILLING CODE 4510–23–P goals, and effectiveness, efficiency, and study the issues of (1) The ‘‘spend performance measures in order to address the critical issues facing the down’’ of retirement assets, (2), phased DEPARTMENT OF LABOR provision of job training and education retirement, and (3) hard to value assets/ to the youth population that it serves. target date funds, will hold a public Office of Job Corps The Committee may provide other meeting on November 5, 2008. The advice and recommendations with meeting will take place in C5515, Room Advisory Committee on Job Corps; 3, U.S. Department of Labor, 200 Meeting regard to identifying and overcoming problems, planning program or center Constitution Avenue, NW., Washington, AGENCY: Office of Job Corps. development or strengthening relations DC 20210. The purpose of the open ACTION: Notice of Advisory Committee between Job Corps and agencies, meeting on November 5, which will meeting. institutions, or groups engaged in start at 1 p.m., is for Working Group related activities. members to discuss their SUMMARY: On August 22, 2006, the Agenda: The agenda for the meeting recommendations for the reports to be Advisory Committee on Job Corps will be a discussion of the draft presented by the Advisory Council to (ACJC) was established in accordance recommendations of the Committee’s the Secretary. with the provisions of the Workforce two subcommittees—subcommittee on Organizations or members of the Investment Act and the Federal facilities and subcommittee on safety public wishing to submit a written Advisory Committee Act. The and security. Committee was established to advance Public Participation: The meeting will statement for any of the meetings may Job Corps’ new vision for student be open to the public. Seating will be do so by submitting 30 copies on or achievement aimed at 21st century high- available to the public on a first-come before October 29, 2008 to Larry Good, growth employment. This Committee first-served basis. Seats will be reserved Executive Secretary, ERISA Advisory will also evaluate Job Corps program for the media. Individuals with Council, U.S. Department of Labor, characteristics, including its purpose, disabilities should contact the Job Corps Suite N–5623, 200 Constitution Avenue, goals, and effectiveness, efficiency, and official listed above, if special NW., Washington, DC 20210. performance measures in order to accommodations are needed. Statements also may be submitted address the critical issues facing the electronically to [email protected]. provision of job training and education Signed at Washington, DC, this 14th day of October 2008. Statements received on or before to the youth population that it serves. October 29 will be included in the The Committee may provide other Esther R. Johnson, Administrator, Office of Job Corps. record of the relevant meeting. advice and recommendations with Individuals or representatives of regard to identifying and overcoming [FR Doc. E8–24758 Filed 10–17–08; 8:45 am] organizations wishing to address the problems, planning program or center BILLING CODE 4510–23–P Advisory Council should forward their development or strengthening relations between Job Corps and agencies, request to the Executive Secretary by institutions, or groups engaged in DEPARTMENT OF LABOR October 29 at the above address or via related activities. telephone at (202) 693–8668. Oral Employee Benefits Security presentations will be limited to 10 DATES: The meeting will be held on Administration November 5–6, 2008 from 12 noon to 4 minutes, time permitting, but an p.m. on November 5 and from 8 a.m. to Advisory Council on Employee Welfare extended statement may be submitted 4 p.m. on November 6. The Committee and Pension Benefit Plans; Notice of for the record. Individuals with will be discussing the draft Meeting disabilities who need special recommendations of its two accommodations should contact Larry subcommittees—subcommittee on Pursuant to the authority contained in Good by October 29 at the address facilities and subcommittee on safety Section 512 of the Employee Retirement indicated in this notice. and security. Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 144th open meeting of Signed at Washington, DC. ADDRESSES: The Advisory Committee the full Advisory Council on Employee This 14th day of October, 2008. meeting will be held at the Westin Welfare and Pension Benefit Plans will Bradford P. Campbell, Arlington Gateway, 801 North Glebe be held on November 6, 2008. Assistant Secretary, Employee Benefits Road, Arlington, Virginia 22203, The meeting will run from 9:30 a.m. Telephone: (703) 717–6200. Security Administration. to approximately 4:30 p.m., with a break [FR Doc. E8–24765 Filed 10–17–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: for lunch. The morning session will take BILLING CODE 4510–29–P Crystal Woodard, Office of Job Corps, place in C5515, Room 3, U.S. 202–693–3000 (this is not a toll-free Department of Labor, 200 Constitution number). Avenue, NW., Washington, DC 20210. SUPPLEMENTARY INFORMATION: On August The afternoon session will take place in 22, 2006 the Advisory Committee on Job Room S–2508 at the same address. The Corps (71 FR 48949) was established in purpose of the open meeting is for the accordance with the provisions of the chairpersons of the three Advisory Workforce Investment Act, and the Council Working Groups to submit their Federal Advisory Committee Act. The findings and recommendations on their

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DEPARTMENT OF LABOR The amended notice applicable to Workers wages at the subject firm are TA–W–63,793 is hereby issued as being reported under two Employment and Training follows: Unemployment Insurance (UI) tax Administration All workers of General Motors Corporation, accounts; Metrologic Instruments Vehicle Manufacturing Division, Shreveport through the end of 2008 and will be [TA–W–63,793] Assembly Plant, including on-site leased paid through Honeywell International workers from Developmental Dimensions beginning in January 2009. General Motors Corporation, Vehicle International and Premier Manufacturing Manufacturing Division, Shreveport Accordingly, the Department is Support Services, Shreveport, Louisiana, amending this certification to properly Assembly Plant, Including On-Site who became totally or partially separated Leased Workers From Developmental from employment on or after August 1, 2007, reflect this matter. Dimensions International and Premier through August 27, 2010, are eligible to apply The amended notice applicable to TA- Manufacturing Support Services, for adjustment assistance under Section 223 W–61,285 is hereby issued as follows: of the Trade Act of 1974, and are also eligible Shreveport, LA; Amended Certification ‘‘All workers of Metrologic Instruments, A to apply for alternative trade adjustment Regarding Eligibility To Apply for Business Unit of Honeywell International, assistance under Section 246 of the Trade Act Worker Adjustment Assistance and Corporate Division, Blackwood, New Jersey, of 1974. Alternative Trade Adjustment who became totally or partially separated Assistance Signed at Washington, DC, this 9th day of from employment on or after April 10, 2006, October 2008. through May 14, 2009, are eligible to apply In accordance with Section 223 of the Richard Church, for adjustment assistance under Section 223 Trade Act of 1974 (19 U.S.C. 2273), and Certifying Officer, Division of Trade of the Trade Act of 1974, and are also eligible Section 246 of the Trade Act of 1974 (26 Adjustment Assistance. to apply for alternative trade adjustment U.S.C. 2813), as amended, the assistance under Section 246 of the Trade Act [FR Doc. E8–24863 Filed 10–17–08; 8:45 am] of 1974.’’ Department of Labor issued a BILLING CODE 4510–FN–P Certification of Eligibility to Apply for Signed at Washington, DC this 8th day of Worker Adjustment Assistance and October 2008. Alternative Trade Adjustment DEPARTMENT OF LABOR Linda G. Poole, Assistance on August 27, 2008, Certifying Officer, Division of Trade applicable to workers of General Motors Employment and Training Adjustment Assistance. Corporation, Vehicle Manufacturing Administration [FR Doc. E8–24861 Filed 10–17–08; 8:45 am] Division, Shreveport Assembly Plant, BILLING CODE 4510–FN–P including on-site leased workers of [TA–W–61,285] Developmental Dimensions Metrologic Instruments A Business DEPARTMENT OF LABOR International, Shreveport, Louisiana. Unit of Honeywell International The notice was published in the Federal Corporate Division Blackwood, NJ; Register on September 12, 2008 (73 FR Employment and Training Amended Certification Regarding Administration 53045). Eligibility To Apply for Worker At the request of the State agency, the Adjustment Assistance and Alternative Notice of Determinations Regarding Department reviewed the certification Trade Adjustment Assistance Eligibility To Apply for Worker for workers of the subject firm. The Adjustment Assistance and Alternative workers assemble Chevrolet Colorado, In accordance with section 223 of the Trade Adjustment Assistance GMC Canyon and Hummer H3 vehicles. Trade Act of 1974 (19 U.S.C. 2273), and New information shows that leased section 246 of the Trade Act of 1974 (26 In accordance with Section 223 of the workers of Premier Manufacturing U.S.C. 2813), as amended, the Trade Act of 1974, as amended (19 Support Services were employed on-site Department of Labor issued a U.S.C. 2273) the Department of Labor at the Shreveport Assembly Plant, Certification Regarding Eligibility to herein presents summaries of Shreveport, Louisiana location of Apply for Worker Adjustment determinations regarding eligibility to General Motors, Vehicle Manufacturing Assistance and Alternative Trade apply for trade adjustment assistance for Division. Adjustment Assistance on May 14, workers (TA–W) number and alternative The Department has determined that 2007, applicable to workers of trade adjustment assistance (ATAA) by these workers were sufficiently under Metrologic Instruments Corporate (TA–W) number issued during the the control of the subject firm to be Division, Blackwood, New Jersey. The period of September 29 through October considered leased workers. notice was published in the Federal 3, 2008. Based on these findings, the Register on June 6, 2007 (72 FR 31345). Department is amending this At the request of a company official, In order for an affirmative certification to include leased workers the Department reviewed the determination to be made for workers of of Premier Manufacturing Support certification for workers of the subject a primary firm and a certification issued Services working on-site at the firm. The workers are engaged in the regarding eligibility to apply for worker Shreveport Assembly Plant, Shreveport, production of bar code scanners/ adjustment assistance, each of the group Louisiana location of the subject firm. imagers. eligibility requirements of Section The intent of the Department’s New information shows that on July 222(a) of the Act must be met. certification is to include all workers 2, 2008, Honeywell International I. Section (a)(2)(A) all of the following employed at General Motors purchased Metrologic Instruments, must be satisfied: Corporation, Vehicle Manufacturing Corporate Division, Blackwood, New A. A significant number or proportion Division, Shreveport Assembly Plant, Jersey and is currently known as of the workers in such workers’ firm, or Shreveport, Louisiana who were Metrologic Instruments, A Business an appropriate subdivision of the firm, adversely affected by increased imports Unit of Honeywell International, have become totally or partially of Chevrolet Colorado, GMC Canyon Corporate Division, Blackwood, New separated, or are threatened to become and Hummer H3 vehicles. Jersey. totally or partially separated;

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B. the sales or production, or both, of firm (or subdivision) described in Affirmative Determinations for Worker such firm or subdivision have decreased paragraph (2) accounted for at least 20 Adjustment Assistance and Alternative absolutely; and percent of the production or sales of the Trade Adjustment Assistance C. increased imports of articles like or workers’ firm; or The following certifications have been directly competitive with articles (B) a loss or business by the workers’ issued. The date following the company produced by such firm or subdivision firm with the firm (or subdivision) name and location of each have contributed importantly to such described in paragraph (2) contributed determination references the impact workers’ separation or threat of importantly to the workers’ separation date for all workers of such separation and to the decline in sales or or threat of separation. determination. production of such firm or subdivision; In order for the Division of Trade The following certifications have been or Adjustment Assistance to issue a issued. The requirements of Section II. Section (a)(2)(B) both of the certification of eligibility to apply for 222(a)(2)(A) (increased imports) and following must be satisfied: Alternative Trade Adjustment Section 246(a)(3)(A)(ii) of the Trade Act A. A significant number or proportion Assistance (ATAA) for older workers, have been met. of the workers in such workers’ firm, or the group eligibility requirements of an appropriate subdivision of the firm, TA–W–64,086; Pope and Talbot, Inc., Section 246(a)(3)(A)(ii) of the Trade Act Corporate Headquarters, Portland, have become totally or partially must be met. separated, or are threatened to become OR: September 19, 2007. 1. Whether a significant number of totally or partially separated; TA–W–63,598; Bemcore Tool, Inc., B. there has been a shift in production workers in the workers’ firm are 50 Dayton, OH: June 20, 2007. by such workers’ firm or subdivision to years of age or older. TA–W–63,768; Zagaroli Classics, Inc., a foreign country of articles like or 2. Whether the workers in the Hickory, NC: July 28, 2007. TA–W–64,047; Shreveport Logistics, directly competitive with articles which workers’ firm possess skills that are not Small Business Interchange, are produced by such firm or easily transferable. Shreveport, LA: September 12, subdivision; and 3. The competitive conditions within C. One of the following must be the workers’ industry (i.e., conditions 2007. satisfied: within the industry are adverse). The following certifications have been 1. The country to which the workers’ issued. The requirements of Section Affirmative Determinations for Worker 222(a)(2)(B) (shift in production) and firm has shifted production of the Adjustment Assistance articles is a party to a free trade Section 246(a)(3)(A)(ii) of the Trade Act agreement with the United States; The following certifications have been have been met. 2. the country to which the workers’ issued. The date following the company TA–W–63,915; Ingersoll Rand, Thermo firm has shifted production of the name and location of each King Division, Sheet Metal articles to a beneficiary country under determination references the impact Department, Arecibo, PR: August the Andean Trade Preference Act, date for all workers of such 13, 2007. African Growth and Opportunity Act, or determination. TA–W–63,990; Whirlpool Corporation, the Caribbean Basin Economic Recovery The following certifications have been Oxford Division, Oxford, MS: Act; or issued. The requirements of Section September 4, 2007. 3. there has been or is likely to be an 222(a)(2)(A) (increased imports) of the TA–W–64,008; Calsonic Kansei North increase in imports of articles that are Trade Act have been met. America, Inc., California Operations Tubes/Hoses Division, like or directly competitive with articles TA–W–63,908; Becker, Inc., Kenosha, Workers of Randstad, Irvine, CA: which are or were produced by such WI: August 20, 2007. firm or subdivision. September 8, 2007. Also, in order for an affirmative The following certifications have been TA–W–64,085; Whirlpool Corporation, determination to be made for issued. The requirements of Section Fort Smith, Arkansas Division, Fort secondarily affected workers of a firm 222(a)(2)(B) (shift in production) of the Smith, AR: July 29, 2008. and a certification issued regarding Trade Act have been met. TA–W–63,862; SPX Corporation, eligibility to apply for worker None. Cleveland, OH: August 12, 2007. adjustment assistance, each of the group The following certifications have been TA–W–63,913; Five Rivers Electronic eligibility requirements of Section issued. The requirements of Section Innovations, LLC, Greeneville, TN: 222(b) of the Act must be met. 222(b) (supplier to a firm whose workers August 19, 2007. (1) Significant number or proportion are certified eligible to apply for TAA) TA–W–63,966; Honeywell International, of the workers in the workers’ firm or of the Trade Act have been met. Inc., Friction Materials Division, Elberton, GA: August 27, 2007. an appropriate subdivision of the firm TA–W–64,028; Edinboro Molding, Inc., TA–W–64,007; LexisNexis, Dayton, OH: have become totally or partially Edinboro, PA: September 10, 2007. separated, or are threatened to become September 5, 2007. TA–W–64,048; Rieter Automotive North TA–W–64,013; Saia Burgess totally or partially separated; America, Carpet, Including Workers (2) the workers’ firm (or subdivision) Automotive, Inc., Leased Workers of of Career Adventures, Shreveport, is a supplier or downstream producer to Aerotek and Westaff, Cary, NC: LA: September 12, 2007. a firm (or subdivision) that employed a September 9, 2007. group of workers who received a The following certifications have been TA–W–64,019; Whittier Wood Products certification of eligibility to apply for issued. The requirements of Section Company, Eugene, OR: October 20, trade adjustment assistance benefits and 222(b) (downstream producer for a firm 2008. such supply or production is related to whose workers are certified eligible to TA–W–64,056; Remy International, Inc. the article that was the basis for such apply for TAA based on increased Co., World Wide Automotive, certification; and imports from or a shift in production to Winchester, VA: September 11, (3) either— Mexico or Canada) of the Trade Act 2007. (A) the workers’ firm is a supplier and have been met. The following certifications have been the component parts it supplied for the None. issued. The requirements of Section

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222(b) (supplier to a firm whose workers workers cannot be certified eligible for DEPARTMENT OF LABOR are certified eligible to apply for TAA) ATAA. and Section 246(a)(3)(A)(ii) of the Trade The investigation revealed that Employment and Training Act have been met. criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) Administration TA–W–64,041; A.G. Simpson (USA), (employment decline) have not been Inc., Leased Workers from Career met. Investigations Regarding Certifications Adventures, Shreveport, LA: TA–W–64,009; Rexnord Industries, LLC, of Eligibility To Apply for Worker September 12, 2007. A Subsidiary of Rexnord Corp., Adjustment Assistance and Alternative TA–W–64,042; Grupo Antolin LA, Inc., West Milwaukee, WI. Trade Adjustment Assistance Grupo Antolin-Irausa, Career The investigation revealed that Adventures, Shreveport, LA: criteria (a)(2)(A)(I.B.) (Sales or Petitions have been filed with the September 12, 2007. production, or both, did not decline) Secretary of Labor under Section 221(a) TA–W–64,050; Ventra St. Louis LLC, and (a)(2)(B)(II.B.) (shift in production of the Trade Act of 1974 (‘‘the Act’’) and Flex N Gate, Pacific, MO: to a foreign country) have not been met. are identified in the Appendix to this September 12, 2007. None. notice. Upon receipt of these petitions, The following certifications have been The investigation revealed that the Director of the Division of Trade issued. The requirements of Section criteria (a)(2)(A)(I.C.) (increased Adjustment Assistance, Employment 222(b) (downstream producer for a firm imports) and (a)(2)(B)(II.B.) (shift in and Training Administration, has whose workers are certified eligible to production to a foreign country) have instituted investigations pursuant to apply for TAA based on increased not been met. Section 221(a) of the Act. TA–W–63,920; Sealy Mattress Company, imports from or a shift in production to The purpose of each of the Mexico or Canada) and Section Clarion, PA. investigations is to determine whether 246(a)(3)(A)(ii) of the Trade Act have TA–W–63,924A; Boise Cascade, LLC, the workers are eligible to apply for been met. Wood Products Division, LA Grande None. Particleboard, La Grande, OR. adjustment assistance under Title II, TA–W–63,924; Boise Cascade, LLC, Chapter 2, of the Act. The investigations Negative Determinations for Alternative Wood Products Division, LA Grande will further relate, as appropriate, to the Trade Adjustment Assistance Lumber Mill, La Grande, OR. determination of the date on which total In the following cases, it has been TA–W–64,088; Rexam Closures Systems, or partial separations began or determined that the requirements of Inc., Bowling Green, OH. threatened to begin and the subdivision 246(a)(3)(A)(ii) have not been met for TA–W–63,918; Atlantic Wire Company, of the firm involved. LLC, Branford, CT. the reasons specified. The petitioners or any other persons The Department has determined that The workers’ firm does not produce an article as required for certification showing a substantial interest in the criterion (1) of Section 246 has not been subject matter of the investigations may met. The firm does not have a under Section 222 of the Trade Act of request a public hearing, provided such significant number of workers 50 years 1974. request is filed in writing with the of age or older. TA–W–63,848; Capgemini America, Inc., Kansas City Service Center, Director, Division of Trade Adjustment TA–W–64,028; Edinboro Molding, Inc., Assistance, at the address shown below, Edinboro, PA. Lee’s Summit, MO. TA–W–64,005; Havells Sylvania d/b/a not later than October 30, 2008. The Department has determined that SLI Lighting Products, Inc., U.S. Interested persons are invited to criterion (2) of Section 246 has not been Distribution Division, Mullins, SC. met. Workers at the firm possess skills submit written comments regarding the TA–W–64,025; Rail Terminal Service, subject matter of the investigations to that are easily transferable. Dupo, IL. TA–W–63,908; Becker, Inc., Kenosha, the Director, Division of Trade The investigation revealed that Adjustment Assistance, at the address WI. criteria of Section 222(b)(2) has not been TA–W–64,048; Rieter Automotive North shown below, not later than October 30, met. The workers’ firm (or subdivision) 2008. America, Carpet, Including Workers is not a supplier to or a downstream of Career Adventures, Shreveport, producer for a firm whose workers were The petitions filed in this case are LA. certified eligible to apply for TAA. available for inspection at the Office of The Department has determined that None. the Director, Division of Trade criterion (3) of Section 246 has not been I hereby certify that the aforementioned Adjustment Assistance, Employment met. Competition conditions within the determinations were issued during the period and Training Administration, U.S. workers’ industry are not adverse. of September 29 through October 3, 2008. Department of Labor, Room C–5311, 200 None. Copies of these determinations are available Constitution Avenue, NW., Washington, for inspection in Room C–5311, U.S. Negative Determinations for Worker Department of Labor, 200 Constitution DC 20210. Adjustment Assistance and Alternative Avenue, NW., Washington, DC 20210 during Signed at Washington, DC, this 8th day of Trade Adjustment Assistance normal business hours or will be mailed to October 2008. persons who write to the above address. In the following cases, the Erin Fitzgerald, Dated: October 14, 2008. investigation revealed that the eligibility Director, Division of Trade Adjustment criteria for worker adjustment assistance Erin Fitzgerald, Assistance. have not been met for the reasons Director, Division of Trade Adjustment specified. Assistance. Because the workers of the firm are [FR Doc. E8–24860 Filed 10–17–08; 8:45 am] not eligible to apply for TAA, the BILLING CODE 4510–FN–P

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APPENDIX—TAA PETITIONS INSTITUTED BETWEEN 9/29/08 AND 10/3/08

Subject Firm Date of Date of TA–W (Petitioners) Location institution petition

64124 ...... Certified Metal Finishing (Wkrs) ...... Benton Harbor, MI ...... 09/29/08 09/25/08 64125 ...... GE Healthcare Bioscience BioProess Corp. (Comp) ...... Somerset, NJ ...... 09/29/08 09/26/08 64126 ...... Netshape Technologies (Comp) ...... Falls Creek, PA ...... 09/29/08 09/10/08 64127 ...... Hewlett-Packard, Imaging and Printing Group (Comp) ...... Vancouver, WA ...... 09/29/08 09/26/08 64128 ...... Biomet (Wkrs) ...... Parsippany, NJ ...... 09/29/08 09/25/08 64129 ...... Broyhill Furniture Industries, Inc., Plant #5 (Wkrs) ...... Taylorsville, NC ...... 09/29/08 09/26/08 64130 ...... Sears Holdings (Wkrs) ...... Columbus, OH ...... 09/29/08 09/24/08 64131 ...... A.H. Schreiber Company (Comp) ...... Bristol, TN ...... 09/29/08 09/26/08 64132 ...... JDSU SW Data Com Product (State) ...... Louisville, CO ...... 09/30/08 09/26/08 64133 ...... Cencorp, LLC (Comp) ...... Boulder, CO ...... 09/30/08 09/29/08 64134 ...... Diebold (IUECWA) ...... Hebron, OH ...... 09/30/08 09/29/08 64135 ...... Panasonic Electronic Devices Corporation of America Knoxville, TN ...... 09/30/08 09/29/08 (Comp). 64136 ...... Magna Power Train, Inc. (Wkrs) ...... Sterling Heights, MI ...... 09/30/08 09/08/08 64137 ...... Electro Scientific Industries, Inc. (State) ...... Portland, OR ...... 09/30/08 09/22/08 64138 ...... Premier Manufacturing Support Services (State) ...... Shreveport, LA ...... 09/30/08 09/29/08 64139 ...... Fitrona Greensboro, Inc. (Comp) ...... Greensboro, NC ...... 09/30/08 09/29/08 64140 ...... Wellman, Inc. (Comp) ...... Johnsonville, SC ...... 09/30/08 09/22/08 64141 ...... Microplane (State) ...... Russellville, AR ...... 10/01/08 09/30/08 64142 ...... St. Lawrence Zinc Company, LLC (Wkrs) ...... Governeur, NY ...... 10/01/08 09/27/08 64143 ...... Universal Manufacturing Corporation (UAW) ...... Zelienople, PA ...... 10/01/08 09/30/08 64144 ...... B & S Hosiery (Comp) ...... Sylvania, AL ...... 10/01/08 09/29/08 64145 ...... Flakeboard America (State) ...... Simsboro, LA ...... 10/01/08 09/29/08 64146 ...... Angelo DiMaria, Inc. (Comp) ...... Providence, RI ...... 10/01/08 09/30/08 64147 ...... Mahle Engine Components USA, Inc. (Comp) ...... Muskegon, MI ...... 10/01/08 09/30/08 64148 ...... Telect Liberty Lake (Comp) ...... Liberty Lake, WA ...... 10/01/08 09/22/08 64149 ...... Sanmina-SCI Corporation (Comp) ...... Pleasant Prairie, WI ...... 10/02/08 10/01/08 64150 ...... Andritz, Inc. (Wkrs) ...... Muncy, PA ...... 10/02/08 10/01/08 64151 ...... Casey Tool and Machine (State) ...... Casey, IL ...... 10/02/08 09/30/08 64152 ...... McClatchy Newspapers/The Sacramento Bee (Wkrs) ...... Sacramento, CA ...... 10/02/08 09/22/08 64153 ...... Thorngate Ltd (UNITE) ...... Cape Girardeau, MO ...... 10/02/08 09/30/08 64154 ...... Hewlett Packard Company (State) ...... Corvallis, OR ...... 10/02/08 09/30/08 64155 ...... Window Fashions, Inc. (Wkrs) ...... Pittsburgh, PA ...... 10/02/08 10/01/08 64156 ...... Boise Cascade (Wkrs) ...... Kettle Falls, WA ...... 10/02/08 10/01/08 64157 ...... Ben Mar Hosiery (State) ...... Fort Payne, AL ...... 10/02/08 09/30/08 64158 ...... Metaldyne (UAW) ...... New Castle, IN ...... 10/02/08 10/01/08 64159 ...... Panasonic Automotive Systems Co of America (Comp) ...... Peachtree City, GA ...... 10/02/08 09/22/08 64160 ...... Boise Cascade, LLC (AFLCIO) ...... St. Helens, OR ...... 10/03/08 10/02/08 64161 ...... Titus Tool Co., Inc. (Comp) ...... Kent, WA ...... 10/03/08 10/01/08 64162 ...... Rock Tenn Company (Comp) ...... Baltimore, MD ...... 10/03/08 09/22/08 64163 ...... Barnes Aerospace (State) ...... Windsor, CT ...... 10/03/08 10/02/08 64164 ...... Veka Innovations dba Vinyl Source (Comp) ...... Youngstown, OH ...... 10/03/08 09/30/08

[FR Doc. E8–24859 Filed 10–17–08; 8:45 am] negative determination issued on July their reliance on imported residential BILLING CODE 4510–FN–P 28, 2008, was based on the finding that lighting fixtures during the relevant imports of residential lighting fixtures period. It was also revealed that did not contribute importantly to employment and sales of residential DEPARTMENT OF LABOR worker separations at the subject firm lighting fixtures declined at Sea Gull and no shift in production to a foreign Lighting Products LLC, Riverside, New Employment and Training source occurred. The denial notice was Jersey during the relevant period. Administration published in the Federal Register on In accordance with Section 246 the [TA–W–63,130] August 12, 2008 (73 FR 46924). Trade Act of 1974 (26 U.S.C. 2813), as In the request for reconsideration, the amended, the Department of Labor Sea Gull Lighting Products, Riverside, petitioner provided additional herein presents the results of its NJ; Notice of Revised Determination information regarding the subject firm’s investigation regarding certification of on Reconsideration domestic production of residential eligibility to apply for alternative trade On September 5, 2008, the lighting fixtures and imports of these adjustment assistance (ATAA) for older Department issued an Affirmative products by the subject firm into the workers. Determination Regarding Application United States. In order for the Department to issue on Reconsideration applicable to The Department contacted the a certification of eligibility to apply for workers and former workers of the company official to verify whether the ATAA, the group eligibility subject firm. The notice was published subject firm imported residential requirements of Section 246 of the in the Federal Register on September lighting fixtures in 2006, 2007 and Trade Act must be met. The Department 18, 2008 (73 FR 54171). January through March 2008. The has determined in this case that the The previous investigation initiated investigation on reconsideration requirements of Section 246 have been on April 4, 2008, and resulted in a revealed that the subject firm increased met.

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A significant number of workers at the Conference has been changed from 27, 2010. Consequently, further firm are age 50 or over and possess Friday, October 24, 2008 at 1 p.m. investigation in this case would serve skills that are not easily transferable. Eastern Time to Tuesday, October 28, no purpose, and the investigation has Competitive conditions within the 2008 at 1 p.m. Eastern Time. been terminated. industry are adverse. FOR FURTHER INFORMATION CONTACT: Signed at Washington, DC, this 9th day of Conclusion Chari Magruder, Grant Officer, Division October, 2008. of Federal Assistance, at (202) 693– Elliott S. Kushner, After careful review of the additional 3313. facts obtained on reconsideration, I Certifying Officer, Division of Trade determine that increased reliance on DATES: Effective Date: This notice is Adjustment Assistance. imports of residential lighting fixtures, effective October 20, 2008. [FR Doc. E8–24866 Filed 10–17–08; 8:45 am] produced by Sea Gull Lighting Products, Signed at Washington, DC this 10th day of BILLING CODE 4510–FN–P LLC, Riverside, New Jersey contributed October, 2008. importantly to the total or partial Chari A. Magruder, DEPARTMENT OF LABOR separation of workers and to the decline Grant Officer. in sales or production at that firm or [FR Doc. E8–24867 Filed 10–17–08; 8:45 am] Bureau of Labor Statistics subdivision. In accordance with the BILLING CODE 4510–30–P provisions of the Act, I make the Proposed Collection, Comment following certification: Request ’’All workers of Sea Gull Lighting Products DEPARTMENT OF LABOR LLC, Riverside, New Jersey, who became ACTION: Notice. totally or partially separated from Employment and Training employment on or after April 3, 2007, Administration SUMMARY: The Department of Labor, as through two years from the date of this certification, are eligible to apply for [TA–W–63,874] part of its continuing effort to reduce adjustment assistance under Section 223 of paperwork and respondent burden, the Trade Act of 1974, and are eligible to Northern Technologies, Spokane conducts a pre-clearance consultation apply for alternative trade adjustment Valley, WA; Notice of Termination of program to provide the general public assistance under Section 246 of the Trade Act Investigation and Federal agencies with an of 1974.’’ In accordance with Section 221 of the opportunity to comment on proposed Signed in Washington, DC this 6th day of Trade Act of 1974, as amended, an and/or continuing collections of October 2008. investigation was initiated on August information, in accordance with the Elliott S. Kushner, 14, 2008 in response to a petition filed Paperwork Reduction Act of 1995 Certifying Officer, Division of Trade by a company official on behalf of (PRA95) [44 U.S.C. 3506(c) (2)(A)]. This Adjustment Assistance. workers of Northern Technologies, Inc., program helps to ensure that requested [FR Doc. E8–24862 Filed 10–17–08; 8:45 am] Spokane Valley, Washington. data can be provided in the desired BILLING CODE 4510–FN–P The petitioner has requested that the format, reporting burden (time and petition be withdrawn. Consequently, financial resources) is minimized, the investigation has been terminated. collection instruments are clearly DEPARTMENT OF LABOR understood, and the impact of collection Signed in Washington, DC, this 8th day of requirements on respondents can be Employment & Training Administration October 2008. properly assessed. The Bureau of Labor Richard Church, [SGA/DFA–PY–08–02] Statistics (BLS) is soliciting comments Certifying Officer, Division of Trade concerning the proposed extension of Solicitation for Grant Applications Adjustment Assistance. the ‘‘Job Openings and Labor Turnover (SGA); Community-Based Job Training [FR Doc. E8–24864 Filed 10–17–08; 8:45 am] Survey.’’ A copy of the proposed Grants BILLING CODE 4510–FN–P information collection request (ICR) can be obtained by contacting the individual AGENCY: Employment and Training listed below in the ADDRESSES section of Administration (ETA, Labor). DEPARTMENT OF LABOR this notice. ACTION: Notice: Amendment to SGA/ DFA-PY–08–02. Employment and Training DATES: Written comments must be Administration submitted to the office listed in the SUMMARY: The Employment and [TA–W–64,138] Addresses section below on or before Training Administration published a December 19, 2008. document in the Federal Register on Premier Manufacturing Support ADDRESSES: Send comments to Carol October 10, 2008, announcing the Services, Shreveport, LA; Notice of Rowan, BLS Clearance Officer, Division availability of funds and solicitation for Termination of Investigation grant applications (SGA) for of Management Systems, Bureau of Community-Based Job Training Grants Pursuant to Section 221 of the Trade Labor Statistics, Room 4080, 2 to be awarded through a competitive Act of 1974, as amended, an Massachusetts Avenue, NE., process. This notice is the first investigation was initiated on Washington, DC 20212, telephone amendment to the SGA and it amends September 18, 2008 in response to a number 202–691–7628. (This is not a the date for the Virtual Prospective petition filed by the State Workforce toll free number.) Applicant conference that will be Office on behalf of workers of Premier FOR FURTHER INFORMATION CONTACT: posted on ETA’s Web site at http:// Manufacturing Support Services, Carol Rowan, BLS Clearance Officer, www.doleta.gov/business/Community- Shreveport, Louisiana. telephone number 202–691–7628. (See BasedJob TrainingGrants.cfm. The petitioning group of workers is ADDRESSES section.) Supplemental Information Correction: covered by an active certification, (TA– The Virtual Prospective Applicant W–63,793) which expires on September SUPPLEMENTARY INFORMATION:

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I. Background addition, businesses will be able to for the proper performance of the The Job Openings and Labor Turnover compare their own turnover rates to the functions of the agency, including Survey (JOLTS) collects data on job national, regional, and major industry whether the information will have vacancies, labor hires, and labor division rates. practical utility. separations. As the monthly JOLTS time The BLS uses the JOLTS form to • Evaluate the accuracy of the series grow longer, their value in gather employment, job openings, hires, agency’s estimate of the burden of the assessing the business cycle, the and total separations from business proposed collection of information, difficulty that employers have in hiring establishments. The information is including the validity of the workers, and the extent of the mismatch collected once a month at the BLS Data methodology and assumptions used. Collection Center (DCC) in Atlanta, between the unused supply of available • Enhance the quality, utility, and Georgia. The information is collected workers and the unmet demand for clarity of the information to be using Computer Assisted Telephone labor by employers will increase. The collected. Interviewing (CATI), Touch-tone Data study of the complex relationship • Entry (TDE), FAX, and e-mail. An Minimize the burden of the between job openings and establishment is in the sample for 24 collection of information on those who unemployment is of particular interest consecutive months. are to respond, through the use of to researchers. While these two appropriate automated, electronic, measures are expected to move in II. Current Action mechanical, or other technological opposite directions over the course of Office of Management and Budget collection techniques or other forms of the business cycle, their relative levels clearance is being sought for the JOLTS. information technology, e.g., permitting and movements depend on the The BLS is requesting an extension to electronic submissions of responses. efficiency of the labor market in the existing clearance for the JOLTS. Type of Review: Extension of a matching workers and jobs. There are no major changes being made currently approved collection. Along with the job openings rate, to the forms, procedures, data collection Agency: Bureau of Labor Statistics. trends in hires and separations may methodology, or other aspects of the Title: Job Openings and Labor broadly identify which aggregate survey. industries face the tightest labor Turnover Survey. markets. Quits rates, the number of III. Desired Focus of Comments OMB Number: 1220–0170. persons who quit during an entire The Bureau of Labor Statistics is Affected Public: Federal Government; month as a percentage of total particularly interested in comments State, Local, or Tribal governments; employment, may provide clues about that: Businesses or other for-profit; Not-for- workers’ views of the labor market or • Evaluate whether the proposed profit institutions; Small businesses and their success in finding better jobs. In collection of information is necessary organizations.

Total Total Average time per Estimated total Affected public respondents Frequency responses response burden

Private ...... 9,265 Monthly ...... 111,180 10 min...... 18,530 State, Local, & Tribal Gov’t ...... 1,422 Monthly ...... 17,064 10 min...... 2,844 Federal Gov’t ...... 401 Monthly ...... 4,812 10 min...... 802

Totals ...... 11,088 Monthly ...... 133,056 10 min...... 22,176

Total Burden Cost (capital/startup): DEPARTMENT OF LABOR 2008, Volume 73, Number 184 on page $0. 54623, in section marked DATES, to read: Bureau of Labor Statistics Total Burden Cost (operating/ DATES: Written comments must be maintenance): $0. Agency Information Collection submitted to the office listed in the Comments submitted in response to Activities: Proposed Collection; ADDRESSES section of this notice on or this notice will be summarized and/or Comment Request; 60-Day Notice of before November 22, 2008. Information Collection Under Review: included in the request for Office of Signed at Washington, DC, this 10th day of Cognitive and Psychological Research Management and Budget approval of the October 2008. information collection request; they also ACTION: Notice; correction. Cathy Kazanowski, will become a matter of public record. Division of Management Systems, Bureau of Signed at Washington, DC, this 10th day of SUMMARY: The Department of Labor, Labor Statistics. Bureau of Labor Statistics published a October 2008. [FR Doc. E8–24729 Filed 10–17–08; 8:45 am] notice in the Federal Register. Agency Cathy Kazanowski, Information Collection Activities: BILLING CODE 4510–24–P Chief, Division of Management Systems, Proposed Collection; Comment Request Bureau of Labor Statistics. Action: 30-Day Notice of Information [FR Doc. E8–24730 Filed 10–17–08; 8:45 am] Collection Under Review: Cognitive and BILLING CODE 4510–24–P Psychological Research. The Department is issuing a correction of the comment date, as this should have been published as a 60-day notice. Correction This is to correct the comment date in the Federal Register of September 22,

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DEPARTMENT OF LABOR some information (e.g. , copyrighted RFI to be insufficient to justify initiating material) is not publicly available to rulemaking for a change to an SDoC Occupational Safety and Health read or download through the Web site. system. Since then, OSHA has obtained Administration All submissions, including copyrighted more information about SDoC, partially material, are available for inspection [Docket No. OSHA–2008–0032] through meetings with the EC, and this and copying at the OSHA Docket Office. information and the EC’s proposal raise Nationally Recognized Testing FOR FURTHER INFORMATION CONTACT: issues and topics that were not fully Laboratories; Supplier’s Declaration of Press inquiries: Jennifer Ashley, explored in the 2005 RFI. The Agency Conformity Director, OSHA Office of is currently interested in responses Communications, Room N–3647, U.S. specifically related to the issues and AGENCY: Occupational Safety and Health Department of Labor, 200 Constitution topics raised in the EC proposal or Administration (OSHA), Labor. Avenue, NW., Washington, DC 20210; otherwise described in this present RFI. ACTION: Request for information. telephone: (202) 693–1999. General and OSHA will examine all responses technical information: MaryAnn received from this RFI to determine SUMMARY: The Occupational Safety and Garrahan, Director, Office of Technical Health Administration requests whether to initiate rulemaking or take Programs and Coordination Activities, any other action with respect to SDoC. comment on a proposal submitted to NRTL Program, Occupational Safety and OSHA requests comments from all OSHA by the European Commission to Health Administration, U.S. Department interested parties on any of the issues permit the use of a Supplier’s of Labor, 200 Constitution Avenue, Declaration of Conformity (SDoC) as an NW., Room N–3655, Washington, DC raised in this RFI, or any other issues alternative to the Nationally Recognized 20210; telephone: (202) 693–2110. Our the public feels is relevant for OSHA to Testing Laboratories (NRTLs) product- Web page includes information about consider, and particularly seeks approval process. the NRTL Program (see http:// comments that include specific detailed DATES: You must submit information or www.osha.gov and select ‘‘N’’ in the site scientific, technical, statistical, or comments by the following dates: index). similar data and studies, of a credible • Hard copy: postmarked or sent by SUPPLEMENTARY INFORMATION: nature, supporting any claims made by January 20, 2009. commenters. OSHA wants to emphasize • Electronic transmission or I. Introduction the importance of receiving such facsimile: sent by January 20, 2009. OSHA requests information and evidentiary information. ADDRESSES: You may submit comments comments on a proposal it received to The remainder of this notice is by any of the following methods: permit the use of a Supplier’s divided into several sections. Section II Electronically: You may submit Declaration of Conformity (SDoC) as an gives background information on comments electronically at http:// alternative to the Nationally Recognized OSHA’s NRTL system for the approval www.regulations.gov, which is the Testing Laboratories (NRTLs) product- (also known as conformity assessment) 1 Federal eRulemaking Portal. Follow the approval process. NRTLs are third-party of electrical products. It also provides instructions online for making (i.e. , independent) laboratories that background information on OSHA’s first electronic submissions. have met OSHA’s requirements for RFI on SDoC, and then describes events Fax: If your submissions, including performing safety testing and leading to OSHA’s current RFI. It also attachments, are no longer than 10 certification of electrical and other includes background information pages, you may fax them to the OSHA products used in the workplace. NRTLs Docket Office at (202) 693–1648. test and certify these products to regarding the World Trade Organization Mail, hand delivery, express mail, or determine whether they conform to (WTO) Agreement on Technical Barriers messenger or courier service: You must appropriate U.S. product-safety testing to Trade. Next, section III discusses submit three copies of your comments standards. In contrast, an SDoC is a requirements for OSHA rulemaking, to the OSHA Docket Office, Docket No. written statement, produced by an section IV summarizes key aspects of OSHA–2008–0032, U.S. Department of equipment manufacturer or supplier, the EC’s proposal related to SDoC, Labor, Room N–2625, 200 Constitution that a product meets or conforms to a section V discusses information that Avenue, NW., Washington, DC 20210. specified test standard or a set of OSHA has obtained to date on the Deliveries (hand, express mail, requirements. OSHA is aware of the European Union’s (EU) SDoC system for messenger, and courier service) are concept of manufacturer’s self-approval the approval of electrical products, and accepted during the Department of and that it is allowed, for certain types section VI describes what OSHA has Labor’s and Docket Office’s normal of products, in the U.S. (by certain found to date to be basic elements of an business hours, 8:15 a.m.–4:45 p.m., e.t. Federal agencies) and other countries. SDoC system, discussing certain topics Instructions: All submissions must Details on this use are covered later in and issues to provide a foundation for include the Agency name and the OSHA this RFI. the questions for which OSHA is docket number (i.e. , OSHA–2008– OSHA is taking this action in seeking specific information. Questions 0032). Submissions, including any response to a request from the European for the public’s consideration are personal information you provide, are Commission (EC) that OSHA allow an included in the latter three sections. placed in the public docket without SDoC system for certain electrical change and may be made available products. SDoC is currently accepted for online at http://www.regulations.gov. certain electrical products in all Docket: To read or download European Union (EU) countries. OSHA 1 While OSHA uses the term ‘‘approval’’ to submissions or other material in the issued a similar Request for Information describe the type of testing or certification activities docket, go to http://www.regulations.gov (RFI) in 2005 in response to a proposal performed by NRTLs, the international community often uses a different term for such activities: or the OSHA Docket Office at the from an industry trade association for Conformity assessment. An international guide, ISO address above. All documents in the OSHA to convert to an SDoC system for Guide 2, defines ‘‘conformity assessment’’ as ‘‘any docket are listed in the http:// IT-related products. At that time, OSHA activity concerned with determining directly or www.regulations.gov index; however, considered the responses from the 2005 indirectly that requirements are fulfilled.’’

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II. Background NRTLs generally approve products for NRTLs already used UL 60950, the a manufacturer before the products are corresponding U.S. harmonized version A. OSHA Approval Requirements and sold or shipped. The NRTL performs of the IEC 60950 standard, for approving NRTL Program two major functions in the product- IT equipment. The IEC 60950 standard Many of OSHA’s workplace standards approval process: Testing and (or UL 60950 or other harmonized require that certain types of equipment certification. For the first function, the versions) covers not only IT, but also a be approved by an NRTL. (In this RFI, NRTL tests a representative unit or number of other common products (e.g., OSHA refers to these provisions as prototype of the product to ensure that printers, copiers, and telephones) and ‘‘NRTL approval requirements.’’) Most it has appropriate safety features. For specialized equipment (e.g., of the requirements for NRTL approval this purpose, the NRTL may control and communications terminal equipment of equipment (also called ‘‘products’’ accept testing performed by parties that and mail-sorting machines). herein) used in the workplace are found the NRTL has qualified. These parties The proposal also included a study by in the Agency’s General Industry typically include independent testing Industry Canada, an agency of the standards, 29 CFR part 1910. For laboratories and even the product’s Canadian government, which discussed example, 29 CFR 1910.303(a) (read manufacturer. The testing ensures that ways that agencies in various countries together with the definitions of the product conforms to the technical use SDoCs for approvals of equipment. ‘‘approved’’ and ‘‘acceptable’’ in 29 CFR requirements specified in test standards. (Ex. 1B, Docket NRTL03–SDOC.) The 1910.399) generally requires electric For the second function, the NRTL study noted the importance in an SDoC equipment or products used in the certifies the product, not only by issuing system of having a responsible workplace to be approved by NRTLs. A a certificate and authorizing use of its regulatory agency with audit and comprehensive list of NRTL approval certification mark, but more broadly enforcement authority after products are requirements and the categories of through listing and labeling, and follow- sold. In contrast, under current OSHA products which must be approved can up inspection programs. The NRTL may regulations, NRTLs must perform key be found on OSHA’s Web site at use a contractor under the NRTL’s functions before products are sold. The www.osha.gov/dts/otpca/nrtl/ control to conduct the inspections. study identified only EU countries as index.html. Inspections must be done on a regular allowing use of SDoC for regulating the Since its inception, OSHA has basis at the product manufacturer’s safety of electric equipment. The study required that electric and other types of factories or assembling facilities to gain noted the importance of each country’s equipment be approved by certain assurance that all manufactured units of ‘‘market surveillance authority to qualified organizations as one measure the product are the same as the unit monitor the products placed on the for ensuring the safety of this initially tested and certified. market.’’ (Id., page 28.) As also noted, equipment, thereby continuing the long For more information about the with respect to EU’s enforcement history in the U.S. of electric equipment program, see the Web site measures, ‘‘[m]any surveillance safety-testing being performed by third- (www.osha.gov/dts/otpca/nrtl/ authorities may use warnings, party (i.e. , independent) organizations. index.html), as well as Ex. OSHA–2008– administrative actions (such as Adopting these requirements led 0032–0004 of this docket and the [product] modifications, recall, sales eventually to the establishment of the exhibits under Docket NRTL03–SDOC, ban, confiscation and publication) and, NRTL Program, which ensures that the latter pertaining to OSHA’s first RFI ultimately, prosecution (fines and these organizations are qualified to on SDoC. imprisonment).’’ (Id., page 29.) perform the product approvals. OSHA determined, however, that OSHA’s NRTL Program recognition B. OSHA’s First Request for Information ITIC’s proposal lacked information process involves a thorough analysis of on SDoC needed to determine whether to initiate an NRTL applicant’s policies and OSHA previously published an RFI rulemaking. To obtain more information procedures and a comprehensive on-site on SDoC in response to a proposal from and give interested parties an review of the applicant’s testing and an industry trade association, the opportunity to comment on the ITIC certification facilities to ensure that the Information Technology Industry proposal, OSHA issued an RFI on applicant meets the requirements of 29 Council (ITIC). It recommended a November 15, 2005 (70 FR 69355). The CFR 1910.7. OSHA’s staff also conducts change from the NRTL approval to an RFI contained seven questions seeking annual on-site audits to ensure that SDoC system for ensuring the safety of detailed information related to the existing NRTLs adequately perform information technology equipment used operation of an SDoC system, and seven their testing and certification activities in the workplace. (Ex. 1, Docket questions related to specific aspects of and maintain the quality of those NRTL03–SDOC.) The proposal claimed the ITIC proposal. Twenty-six operations. that SDoC would reduce products’ time- comments were received in response to OSHA imposes on the NRTLs several to-market delays and would not have a the RFI. Commenters in favor (mainly requirements found in 29 CFR 1910.7. detrimental effect on the safety of from three product industry Three of the requirements set forth the affected products. It also claimed that associations) claimed that SDoC would definition for an organization’s testing information-technology (IT) equipment reduce product time-to-market and that and certification capabilities. The had a strong workplace safety record. SDoC systems have similar safety remaining requirement mandates an ITIC further suggested that all IT records to OSHA’s NRTL Program. organization’s complete independence equipment should be approved to meet Commenters opposed to the proposal from any manufacturers, vendors, and the technical requirements of the IEC (mainly from product industry major users of equipment subject to the 60950 test standard issued by the associations, individuals, and NRTLs) requirements. This last requirement International Electrotechnical claimed that the competence of different ensures that organizations within the Commission (IEC), a leading manufacturers varied widely, and that program are third parties.2 organization in the development of there were no sufficient reasons for international test standards. ITIC OSHA to change its system. These latter 2 NRTLs may be based in the U.S. or in other advocated the use of this test standard commenters claimed that safety would countries. Currently, there are 15 NRTLs, of which 13 are established in the U.S. and two are foreign- by all countries. (Ex. 1A, Docket suffer under an SDoC system. Some based. NRTL03–SDOC.) OSHA noted that commenters also stated that OSHA did

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not have the authority to implement an percent for ‘‘US computer products’’ legislative authority in addition to an SDoC system. Industry associations between 1994 and 1999, but did not increase of appropriations. The change opposed to the proposal included the provide the original sources of the data in legislative authorization appeared National Electrical Manufacturers from which this figure was calculated. necessary because OSHA lacked Association. Many commenters, both for (Ex. 1, id.) It is also unclear why more authority to adopt many of the and against the proposal, stated that recent data were not used. In any event, enforcement measures for electrical adoption of SDoC would require OSHA, their approach did not account for a safety noted earlier for the SDoC system at a minimum, to implement a significant confounding factor—that all implemented by the EU, including postmarket-surveillance system, which computer equipment operating from an product recalls, bans, and confiscation, would require monitoring products after electric outlet and used in U.S. among other measures. The Agency they reached the market, thereby workplaces is required to be NRTL could not justify such requests from leading to potential enforcement actions approved—so ITIC’s method did Congress based on the information such as product bans or recalls. nothing to measure the safety of obtained through the RFI process. In general, however, commenters did equipment sold or used only under an In view of these findings, which not provide adequate data to support SDoC system. summarize only some of the key areas their arguments. For example, parties on Other data submitted by ITIC address of concern, OSHA decided to take no both sides of the SDoC question offered this problem, in part. A graph in a further action on the proposal and little in the way of adequate data to PowerPoint presentation prepared by announced its decision in the Spring support their positions. With regard to UNICE (now known as 2007 Semi-Annual Regulatory Agenda, the safety risk of the products, the data ‘‘BUSINESSEUROPE’’), and submitted published on April 30, 2007 (see 72 FR or other information were not presented by ITIC, shows that in 2004, 27% of 22870). in a manner to ensure validity or to RAPEX notifications of unsafe products C. Events Leading to Second Request for allow for analysis and evaluation. In were for products manufactured in the Information on SDoC this regard, the American Council of EU, compared with 2% for U.S.- Independent Laboratories (ACIL) manufactured products. (Ex. 2–9–1, Id.) On April 30, 2007, President Bush reported results from a survey it Again, the underlying data are not and his EU counterparts signed the conducted, stating that ‘‘50% of IT and provided. However, taken at face value, Framework for Advancing Transatlantic Office Equipment products were non- these statistics suggest that an NRTL Economic Integration Between the U.S. compliant after first submittal to the system may reduce the risk of unsafe and the EU (‘‘Framework Agreement’’ or NRTL,’’ and that 50% of these products. No firm conclusions may be ‘‘Agreement’’). (Ex. OSHA–2008–0032– noncompliances were ‘‘major safety and drawn, however, without more 0002.) This is a trade-related agreement health related.’’ (Ex. 2–5, Docket information, such as the percentages that has a number of objectives, NRTL03–SDOC.) However, ACIL offered and types of U.S.-manufactured goods foremost of which is ‘‘removing barriers no report summarizing all the results of and EU-manufactured goods sold in the to transatlantic commerce’’ (see section the survey or information about the EU. Another UNICE graph showed a II of the Agreement). The Agreement’s methodology of the survey, the response relative decrease in electrocutions in Annex 1 lists a number of activities rate, or the data upon which Germany compared to the U.S. between affecting different U.S. and EU agencies respondents relied. Likewise, 1960 and 1989. (Ex. 2–9–1, Id.) and sectors, including ‘‘initiating an Underwriters Laboratories (UL) However, the source of the data does not exchange on conformity-assessment provided no details about how it appear to be readily available in the procedures for the safety of electrical determined that ‘‘[a]pproximately 50% U.S., the actual numbers of equipment.’’ of the IT equipment’’ submitted to it electrocutions per year and a The agreement established a ‘‘initially fails to meet the applicable stratification by causes are not provided Transatlantic Economic Council (TEC) safety requirements.’’ (Ex. 2–4–1, Id.) in the graph, no reason is given why to monitor progress toward meeting the Similarly unsupported were UL’s more recent data were not obtained, and goals of the Framework Agreement. As statements that ‘‘[f]ield sampling in the it is unclear whether the data are stated in the Agreement, the TEC is ‘‘co- European Union suggests that up to normalized for the two populations. chaired, on the U.S. side, by a U.S. 50% of the IT equipment on the market In summary, much of the information Cabinet-level official in the Executive in the European Union today does not submitted by commenters lacked the Office of the President and on the EU comply with applicable requirements’’ supporting data and details requested in side by a Member of the European and that ‘‘[i]n 2004, electric appliances the RFI. In addition, as the above Commission, collaborating closely with accounted for 27 percent of RAPEX- examples demonstrate, some comments the EU Presidency.’’ Through the TEC, posted products and were determined to provided inadequate support for data, in July 2007, the EC issued a brief present a serious risk to consumers’ figures, or claims, or provided little or statement proposing that OSHA adopt health and safety.’’ (Ex. 2–4–1, Id.) inadequate explanation. OSHA analyzed SDoC for all electric equipment, (RAPEX is formally called the all of the comments and concluded that claiming that this action would ‘‘reduce Community Rapid Information System.) the information did not justify a unnecessary costs for transatlantic The Canadian Standards Association decision to initiate rulemaking to adopt trade.’’ (Ex. OSHA–2008–0032–0003.) referenced a German study which SDoC. Most importantly, OSHA found Working in part through the TEC, OSHA purported to show that ‘‘certified that the information it received did not and the EC arranged a meeting to (’tested’) products appeared much less provide reasonable assurance that undertake the Annex 1 activity often in accident and fault reports than adopting SDoC would provide a high regarding the exchange of information uncertified products,’’ but did not degree of protection for the safety of on the conformity-assessment provide the study for OSHA’s review or products used in the workplace. procedures for the safety of electrical a citation where it might be found. (Ex. Without such assurance, OSHA found equipment. 2–7–1, Id.) little justification to initiate a On October 11, 2007, representatives Similar problems exist with the data rulemaking. Furthermore, OSHA of OSHA and two other offices within submitted by the proponents of SDoC. believed that implementation of SDoC the Department of Labor met with ITIC calculated a defect rate of 0.2 might require a change to OSHA’s representatives of the EC to conduct an

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exchange of information in furtherance necessary inter alia to protect human thus, to protect the safety of the of the Annex 1 activity. A summary of health or safety. Article 5 of the TBT employees. The NRTL Program is this meeting was produced that captures Agreement requires Members to ensure necessary to provide assurance that the key aspects of these systems. (Ex. that its central-level conformity approvals are performed by qualified OSHA–2008–0032–0004.) The assessment procedures are not prepared, organizations. As discussed later in this participants considered the meeting to adopted or applied with a view to or notice, the EC views OSHA’s third-party be productive, but neither side was able with the effect of creating unnecessary approval requirements and NRTL to ask all of its questions due to lack of obstacles to international trade and Program as unnecessary obstacles to time. explains that ‘‘this means inter alia that trade. (See, for example, Ex. OSHA– At its first formal meeting, held on conformity assessment procedures shall 2008–0032–0005.) Although OSHA November 9, 2007, the TEC issued a not be more strict or be applied more disagrees with this view, it issues this joint statement requesting OSHA to strictly than is necessary to give the RFI to gather information bearing on the report, at the TEC’s next meeting, on importing Member adequate confidence question that an SDoC system, at least ‘‘progress made to facilitate trade in that products conform with the for some categories of equipment, may electrical products with respect to applicable technical regulations or protect employees sufficiently to satisfy conformity assessment procedures for standards, taking into account the risk the requirements of the OSH Act. the safety of such products.’’ (Ex. non-conformity would create.’’ OSHA–2008–0032–0009.) In March Congress amended the Trade III. Requirements for OSHA 2008, the EC issued another statement Agreements Act of 1979, as amended Rulemaking requesting the ‘‘[U.S.] Government to (‘‘TAA’’; 19 U.S.C. 2501 et seq.) to The primary purpose of the allow the import and sale of any low- implement the TBT Agreement. In Occupational Safety and Health Act is risk electrical and electronic product on particular, the TAA indicates that to assure, so far as possible, safe and the basis’’ of SDoC.3 (Ex. OSHA–2008– Federal agencies may not ‘‘engage in healthful working conditions for every 0032–0005.) At the second formal TEC any standards-related activity that American employee. 29 U.S.C. 651(b). meeting, held on May 13, 2008, creates unnecessary barriers of trade.’’ To fulfill this purpose, Congress gave Secretary of Labor Elaine Chao stated 19 U.S.C. 2532. A standard is the Secretary of Labor the authority to that OSHA would issue a second RFI on ‘‘necessary’’ in this context: promulgate, modify, or revoke SDoC. (Ex. OSHA–2008–0032–0006.) mandatory occupational safety and [I]f the demonstrable purpose of the 4 Among other things, this RFI allows standards-related activity is to achieve a health standards. 29 U.S.C. 655. OSHA to obtain a better understanding legitimate domestic objective including, but The Act, the case law developed regarding SDoC and, as noted earlier, not limited to, the protection of legitimate under it, and OSHA regulations certain related topics and issues not health or safety, essential security, establish a number of requirements that fully explored in the 2005 RFI. In June environmental, or consumer interests and if the Agency must meet before exercising 2008, at the request of OSHA, the EC such activity does not operate to exclude this authority. Some of these submitted a formal rationale for its imported products which fully meet the requirements are procedural. For objectives of such activity. request that OSHA adopt SDoC for example, the Agency must support its ‘‘electrical and electronic products.’’ 19 U.S.C. 2531(b). findings with substantial evidence in This rationale is discussed in section IV. The TAA also requires Federal the record developed through the agencies to take international standards rulemaking proceedings, and explain D. World Trade Organization’s into account in standards-related the basis for accepting or rejecting all Agreement on Technical Barriers to activities, and to base their standards on major suggestions for modification of a Trade the international standards ‘‘if proposed standard. See ‘‘Supplemental The U.S. and 152 other countries are appropriate.’’ 19 U.S.C. 2532(2)(A). Statement of Reasons’’ for the final rule Members of the World Trade However, international standards are on Control of Hazardous Energy Organization (WTO) and party to the not ‘‘appropriate’’ if they do not Sources, 58 FR 16612 at 16615; see also Agreement Establishing the World adequately protect ‘‘human health or 29 U.S.C. 655(b)(2), (b)(3), and (f). In Trade Organization which includes the safety, animal or plant life or health or addition, when OSHA decides to change Agreement on Technical Barriers to the environment.’’ 19 U.S.C. 2532(2)(B). a standard, it must provide a reasoned Trade (TBT Agreement) (see Ex. OSHA– Likewise, the TAA provides that it may basis for the change. International 2008–0032–0007). The TBT Agreement not be construed ‘‘to limit the authority Union, UAW v. OSHA, 37 F.3d 665, addresses technical regulations, of a Federal agency to determine the 668–69 (DC Cir. 1994) (‘‘Lockout/Tagout standards and conformity assessment level it considers appropriate of safety II’’) procedures for products or related or of protection of human, animal, or processes and production methods. In plant life or health, the environment, or 4 In its comments submitted in response to the terms of the TBT Agreement, OSHA’s consumers.’’ 19 U.S.C. 2531(a)(2). previous RFI, ITIC argued that OSHA could adopt an SDoC system through an interpretative rule NRTL approval requirements are OSHA’s NRTL Program and its third- without notice and comment. (Ex. 4–19, pp. 10–12, considered conformity-assessment party approval requirements apply to Docket NRTL03–SDOC.) OSHA disagrees with this procedures. The TBT Agreement states certain equipment or products used in assertion. Current rules require NRTLs to be Members’ desire to ensure that technical the workplace, regardless of whether ‘‘completely independent of * * * manufacturers or vendors of equipment or materials being tested. regulations, standards, and conformity they are manufactured within or outside * * *’’ 29 CFR 1910.7(b)(3). A change to this assessment procedures do not create of the U.S. In addition, the NRTL requirement would constitute a legislative rule that unnecessary obstacles to trade while Program is open to both U.S. and ‘‘directly governs the conduct of [employers], recognizing that no Member should be foreign-based organizations, which gives affecting individual rights and obligations,’’ Long Island Care at Home, Ltd. v. Coke, 511 U.S. l, 127 prevented from taking measures that are them equal opportunity to become an S. Ct. 2339, 2350 (2007) (internal quotation marks NRTL. OSHA’s requirements for omitted). To guarantee that employers have an 3 OSHA does not regulate the ‘‘import and sale’’ approval of electric equipment are opportunity to participate in the formulation of of products, but its rules do affect whether certain necessary measures for protecting these individual rights and obligations, OSHA must products may be used in the workplace, thus follow the notice, comment, and hearing procedures affecting whether those products may be sold or employees against electrical shock, of the Administrative Procedure Act and the OSH imported into the U.S. electrocution, burns, and fires, and, Act.

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OSHA also is constrained by certification. The EC stated that it made section VI, below, to address these substantive rulemaking requirements. ‘‘an assessment of the risk to consumers, topics. Accordingly, the OSH Act requires that workers, and the general interest’’ as to B. OSHA Comments on EC’s Rationale safety standards, like the NRTL whether certain ‘‘non-compliant approval requirements, must ‘‘afford a products [reaching] the market would The key part of the EC’s rationale is high degree of protection’’ to employees. pose a danger.’’ The EC then concluded its conclusion that the safety risk Lockout/Tagout II, 37 F.3d at 669. Thus, that for these products ‘‘these risks are associated with noncompliant electrical for OSHA to adopt an SDoC approval at a level that they can be satisfactorily products can be satisfactorily managed standard and related program, it must managed’’ by requiring manufacturers to through SDoC. Indeed, this is a find, on the basis of substantial demonstrate compliance and retain threshold determination that OSHA evidence, that the SDoC system proof of compliance for inspection by must make before it proposes an SDoC provides this high degree of protection public authorities. It also stated that approval standard or related program. to employees who use equipment that such rules, along with legal liabilities on As discussed below, however, to date would be covered by the standard. In manufacturers, consumer-protection the EC has failed to support this this regard, OSHA has been careful to legislation, and appropriate enforcement conclusion with the evidence necessary ensure that changes to its product- measures would guarantee a high level for OSHA to reasonably ensure that conformity program maintain existing of safety for European consumers. The SDoC would satisfy the standard-setting levels of employee safety. See the final EC further stated that it instituted its requirements of the OSH Act. Such rule on Safety Testing or Certification of approach in the area of electrical safety support could include, for example, an Certain Workplace Equipment and through its ‘‘Low Voltage Directive,’’ for explanatory study or report that Materials, 53 FR 12102 at 12103, April products rated ‘‘between 50–1000 volts adequately describes, quantifies, or 12, 1988. AC and 75–2500 [sic] volts DC. * * *’’ otherwise specifies the level or (Note: the actual DC upper limit is 1500 characteristics of noncompliance, or the IV. EC’s formal proposal for OSHA to volts.) We will provide some general characteristics of the electrical or other adopt SDoC information about EC directives in the safety risk involved. It is clear that the A. Overview of rationale next section of this notice. EC would not permit SDoC for The EC contends in its rationale that particular equipment if it believes that The EC’s proposal to OSHA OSHA’s third-party requirements cause the safety risk of noncompliance is too concerning the adoption of SDoC is an ‘‘imbalance in market access * * * high. In fact, it justifies the use of SDoC captured in its March 2008 statement [by manufacturers for] transatlantic for low-voltage products on the grounds (Ex. OSHA–2008–0032–0005) and trade in electrical products,’’ and an that the safety risk of noncompliance is supplemented by its June 2008 rationale ‘‘imbalance in market access for the low. (Ex. OSHA–2008–0032–0008, p. 1.) (Ex. OSHA–2008–0032–0008).5 The [EU] certification industry’’ because However, it is unclear from the EC’s March 2008 statement formally requests they are subject to OSHA’s NRTL proposal whether the EU determined that OSHA ‘‘review its conformity approval requirement while U.S. that the safety risk from noncompliance assessment procedures in the area of certifiers are not subject to any such was low before it implemented the electrical and electronic products.’’ In comparable EU requirement. The EC SDoC for low-voltage products, or this statement, the EC also advocated also asserts that the requirements determined that the low level of risk SDoC because it believes third-party increase the likelihood that countries resulted through implementation of conformity assessment of ‘‘low-risk importing products from the U.S. and SDoC. Also, it was unclear from the electrical and electronic product[s]’’ in the EU will establish their own form of proposal how the EU made this the U.S. ‘‘imposes unnecessary testing and approval. The EC further determination. In addition, the EU additional costs and market-entry contends that an OSHA change to SDoC believes that this low level of barriers on exporters of these goods. ‘‘is justified by the fact that European noncompliance and the resulting low * * *’’ The statement describes the consumers and workers experience a level of safety risk is maintained types of products the EC considers to be high if not higher level of electrical because manufacturers are required to outside the scope of ‘‘low-risk electrical safety as their counterparts in the US.’’ retain ‘‘proof’’ of compliance and and electronic product[s],’’ such as It attributes this effect in part to ‘‘the because manufacturers are subject to ‘‘electrical equipment for use in an high level of safety of electrical and legal ‘‘liability, consumer protection explosive atmosphere, * * * for electronic devices.’’ Moreover, it legislation and an appropriate radiology and medical purposes, * * * contends that ‘‘[s]tatistics furthermore enforcement.’’ (Id.) The EC has not [and] electricity meters, plugs, and demonstrate that accidents can seldom provided evidence to support this socket outlets for domestic use. * * *’’ be attributed to products, but are conclusion regarding the effectiveness The EC, therefore, maintains that such normally the result of ’live’ wires and of an SDoC system, and a reliable means products present a level of risk that neglect. Where they can be attributed to of tracking the results of such a system would make SDoC an inappropriate products, there are no indications that would help to provide the required means of conformity assessment, and in the EU there is a relationship evidence. OSHA would need to review the EC requires the use of third-party between non-compliance and incidents this evidence before it could reach approvals in such cases. [of accidents].’’ Finally the EC claims similar conclusions. In its rationale, the EC noted that it that ‘‘market mechanisms [in the EU] The EC further contends that has long experience with ‘‘conformity ensure that most electrical and European consumers and employees assessment regimes’’ that do not require electronic products and especially high ‘‘experience an equally high, if not manufacturers to obtain third-party technology products and high volume higher level of electrical safety as their products follow rigid quality controls counterparts in the U.S.’’ (Ex. OSHA– 5 In August 2008, OSHA received a and have an excellent record of 2008–0032–0008, p. 2.) The EC complementary proposal, jointly submitted by three compliance.’’ attributes this ‘‘higher level’’ in part to industry associations, that provides a suggested approach for implementing an OSHA SDoC system. The EC’s rationale also suggests ‘‘the high level of safety of electrical and See section VI.G if you wish to comment on this several topics to cover in this RFI, and electronic devices.’’ (Id.) The EC also approach. OSHA is including the questions in claims that ‘‘[s]tatistics furthermore

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demonstrate’’ that accidents involving third-party certification of certain that electrocutions have become rare in equipment are not attributable to ‘‘a products, such as is required by OSHA, the EU since the LVD was implemented, relationship between non-compliance can create barriers to trade, and that which the EC argues indicates the and incidents [of accidents].’’ (Id.) It programs that create such barriers effectiveness of the EC’s SDoC system. later notes that ‘‘most electrical and should be justified by the additional In general, the conformity-assessment electronic products and especially high benefits they confer. In addition, the approach used in the EU classifies technology products * * * have an proposal points out that the U.S. has products according to eight categories, excellent record of compliance.’’ (Id.) To implemented SDoC systems for many with requirements ranging from the date, OSHA has received no data to product categories other than electrical least stringent (Module A) to the most support any of these statements. OSHA products. The proposal claims that the stringent (Module H). Module A, would need to receive such information EC’s system is as effective as the U.S.’s covering only the lowest-risk products to determine whether to initiate for protecting both consumer and and formally called ‘‘internal rulemaking on SDoC. employee safety. production control,’’ is the only system The proposal requests that the RFI for which SDoC is permitted on its own, C. Questions obtain information for an assessment of i.e., without other and stronger As noted above, the EC identified a the elements that would be necessary to regulatory controls. (See Ex. OSHA– number of issues in its rationale and implement an SDoC system, and to 2008–0032–0015 for an illustration of suggested that the RFI include questions obtain data and information about what the safety requirements for products addressing a number of topics. OSHA’s classes of products such a system would covered by each module.) most appropriately regulate. At the time comments above also serve as a basis for Enforcement under the LVD is of publication of this RFI, the EU’s other questions. conducted through Member States’ SDoC system is the only one of which postmarket surveillance. The EU Questions Related to Details and Data OSHA is aware that exists for the countries must enact their own national Supporting EC’s Rationale conformity assessment of electrical- laws to implement the LVD, and assign product safety. In this section, we IV.1. What information and evidence at least one agency (called the review the information we have is available to support the conclusion ‘‘surveillance authority’’) to enforce obtained on this system as a basis for that the risk of nonconforming products these laws. In the United Kingdom, for later questions seeking a better posing a danger was, is, and will be low example, this role is filled by understanding of this system. under SDoC? If possible, describe, approximately 250 local government quantify, and otherwise specify the level B. The EU’s SDoC system agencies, whereas in other countries, or characteristics of noncompliance, and one agency or one part of an agency may the characteristics of the electrical or The summary of the October 11, 2007, information-exchange meeting between fill this role. The surveillance other safety risk involved. authority’s inspections are a critical IV.2. What data, documentation, or OSHA and EC representatives (Ex. OSHA–2008–0032–0003) provides aspect of its activities. Among the records exist to demonstrate adequately countries, the kinds and number of that European consumers and much of the information included in this part. Research by OSHA staff also inspections vary depending on the employees experience a level of number of available inspectors, the electrical safety at least as high as their provided information. Products covered by the EC’s SDoC amount of available funding, and the counterparts in the U.S.? system for electrical safety are type and number of problems the EU IV.3. What legal liability, consumer- determined by the Low Voltage country is facing. In at least one protection legislation, and enforcement Directive (LVD) (Ex. OSHA–2008–0032– country, inspections are based primarily programs exist in the EU to ensure that 0017), which was implemented in 1973 on complaints and accidents, and in its SDoC system has maintained and to promote the free movement of goods other countries, inspections are based will maintain the risk of danger posed across the EU. (The LVD does not apply primarily on a random selection of by noncompliant products at a low to goods intended for export to products. Once a potential deficiency is level, or to ensure that the level of countries outside the EU.) Such found, the manufacturer, if known, may noncompliant products will be low? Are directives constitute laws enacted by the be required to submit to the authority a there similar protections in the U.S.? European Council and European report by an independent testing IV.4. What data or documentation Parliament. These laws are generally organization (called a ‘‘notified body’’ in exists to demonstrate adequately that proposed by the EC. More information the EU) demonstrating that the product accidents in the EU involving electric on these institutions and their functions conforms to the applicable test standard. equipment are not attributable to is available at http://europa.eu/ For those products that do not conform, product noncompliance, and that most index_en.htm . The LVD covers all the manufacturer must make a risk electrical and electronic products, equipment between 50 and 1000 volts assessment and propose corrective especially high-technology products, AC and 75 and 1500 volts DC, except as actions. Ultimately, the country’s have an excellent record of compliance? specifically excluded in its Annex II. surveillance authority makes a final V. The EU’s SDoC System This annex lists, among other types of decision on risk, which, as noted in the equipment, ‘‘electrical equipment for next section, can vary substantially A. Background use in an explosive atmosphere, those across countries. The authority then On June 25, 2008, the EC submitted a for radiology and medical purposes, and decides what remedial action to take, formal proposal to OSHA to issue a those for goods and passenger lifts.’’ The which may include product recall, ban, second RFI on the adoption of an SDoC lower and upper limits of the LVD were quarantine, or confiscation; assessing system for certain ranges of products. set to exclude electric equipment of the financial penalties; and, in more serious (Ex. OSHA–2008–0032–0008.) The telecommunication industry and cases, assessing criminal penalties. If proposal states that the RFI would electric-power industries, respectively. the authority cannot locate the further the TEC’s goals of ‘‘promoting The EC’s proposal asserts that all manufacturer or its authorized transatlantic trade and regulatory products covered under the LVD have representative, the authority may hold convergence.’’ It states that obligatory been demonstrated to be ‘‘low-risk,’’ and the retailer (or other party placing the

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product in that country’s market) is the same or higher than that achieved a total of 226 luminaires were evaluated responsible, and impose the remedial by the U.S. under its NRTL system. for conformance to applicable action on that party. However, the EC did not provide data, administrative and technical For products posing immediate safety in its submissions, to demonstrate its requirements. Of this total, 38% risks, and affecting more than one position in a way that would support originated in the EU, 23% originated country, the EU has a rapid alert system rulemaking by OSHA. As noted by the from China, 10% originated from other (RAPEX). This system is increasingly EC in its presentation at the October 11, countries outside of the EU, and 29% used for communicating information 2007, meeting with OSHA, the lack of had no country of origin specified. The about noncompliant products. Another harmonization in the EU of methods to project found that 72% (162) of the 226 notification system, the Information and collect statistics on electrical accidents luminaires failed one or more of the Communication System for Market hinders any comparison of statistics technical requirements, with nearly half Surveillance (ICSMS), also has this between the U.S. and the EU, or even (74) containing ‘‘serious’’ technical purpose, but it is not used by all among Member States within the EU. hazards, and 23% (53) of the 226 Member States. Technical files of OSHA has obtained information that luminaires had administrative products covered under the directive highlights different aspects of the EU’s nonconformities (missing ‘‘CE’’ marks, must be maintained by the manufacturer SDoC system, and provides a gauge of missing or incorrect technical files, for at least 10 years after the products its effectiveness. We are summarizing missing or incorrect declarations of go on the market. Private-sector bodies this information solely to provide a conformity, and other similar problems). called ‘‘European Standardisation basis for some of our questions in this (Id., p. 17.) According to the report of Organisations’’ are responsible for RFI, and not to draw conclusions from the project, sampling was not random. developing and maintaining the it. Consequently, the results obtained ‘‘do technical safety specifications for the First, we present the reports of the not give a dependable estimate of the products, similar to the role of the results of two projects that were percentages [of] non-compliant American National Standards Institute undertaken by EU market-surveillance luminaires on the market.’’ (Id., p. 18.) in the U.S. In addition, a product that authorities, then discuss a relevant However, the report indicates that the complies with the harmonized EU report issued by the staff of an office of results of the project match the actual versions of international test standards the EC, and finally describe some experiences of several EU Member is assumed to be in compliance with the aspects of the EU’s RAPEX and ICSMS States. A summary of the report states LVD. If challenged by the Member systems. the following: States’ surveillance authority, a The Low Voltage Directive manufacturer must prove it has Administrative Co-operation (LVD Many companies appear to neglect complied with the LVD either by AdCo) is ‘‘an independent Working assuring conformity with the administrative Group run and chaired by the Member requirements in the Directive. Declarations of demonstrating compliance with conformity and technical files were often not harmonized test standards or by other States. The Group is a forum for co- available or did not fit the luminaires means. In cases for which the operation and exchange of information themselves. The LVD prescribes module A manufacturer cannot be found, the between national market surveillance for conformity assessment, which amounts to burden passes to the importer, who can authorities.’’ (Ex. OSHA–2008–0032– self-certification by the manufacturer or be liable for penalties and applicable 0010.) In 2006, LVD AdCo organized its importer into the EU. The choice for module fines. However, there is no requirement first cross-border market-surveillance A was made because of the relatively minor that manufacturers or importers register project, i.e. , a multi-country hazards associated with electrical products. with any Member States, making it cooperative and coordinated effort, by However, the new and global approach is the surveillance authorities from 15 based on the assumption that the actors difficult in some cases to identify the comply with the conformity assessment responsible party. Member States. In deciding which procedures before CE-marking the product in While EU Member States cannot add products to target, the project report order to assure safe products on the markets. safety-related requirements to the LVD, notes that consideration was given to For fragmented markets like the one for they can regulate nonsafety-related the differences in ‘‘infrastructures and luminaires, this assumption does not appear public-interest requirements. The LVD, funding * * * between member states,’’ to be valid, if the results of this and previous like other directives, is binding upon and the need to ensure ‘‘that cost was national actions are indeed indicative. (Id., Member States, which are supposed to minimized and that the technical p. 19.) implement it by transposing it into their requirements for the tests were within The report lacks any analysis of the own national laws. If the Member States the possibilities of all potential underlying causes for the high rate of do not implement or do not properly participants.’’ (Ex. OSHA–2008–0032– nonconformities found. It recognizes implement the LVD or other product- 0011, p. 5.) This approach highlights the some difficulties in market surveillance related directives through their own technical and financial limitations faced caused by differences between the legislation, they are nonetheless by some Member States in performing systems of EU Member States, noting: obligated to accept products declared their surveillance functions. Differences exist between the member compliant with the LVD unless the The study targeted ‘‘portable states in the grading of shortcomings: the products are found to be noncompliant. luminaries’’ (i.e. , portable lamps) partly same violation of a specific requirement Fines imposed on manufacturers or because they ‘‘are relatively cheap to leads to different assessment of the resulting importers for noncompliance with the purchase,’’ thus making this project risk and as a consequence to different LVD are levied by individual Member feasible for ‘‘member states with small interventions. Given the differences in legal States, and may vary between different [market-surveillance] budgets.’’ These systems[,] differences in sanctions imposed Member States. products were selected for study in the various member states for similar because of the large number of problem violations cannot be avoided. C. Effectiveness of the EU’s SDoC system notifications found with these products The report states further that The EC has stated that its SDoC by Member States, as shown in a chart ‘‘multinational companies operating in system has provided European depicting past ‘‘safeguard clauses and the European union * * * will rightly consumers and employees with a high RAPEX notifications.’’ (Ex. OSHA– wonder why it is that the same violation level of safety. It argues that this level 2008–0032–0011, p. 6.) For the project, is considered a serious risk in one

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member state, while another member aware that the legislation pertaining to RAPEX, ICSMS, or other data or state classifies it as a minor risk.’’ The this staff document was passed and is reporting system used in the EU? report suggests that in this area due to go into effect in 2010, although VI. Topics and Issues for Consideration ‘‘harmonization is urgently needed.’’ OSHA has not obtained the details of in a Possible Rulemaking (Id., p. 23.) the measures adopted to address the A similar project was conducted on problems and recommendations in the As part of this RFI, OSHA is seeking extension cords, and a summary of the staff document. information on the topics and associated results was provided in a press release. The staff document states that the issues described below (with the (Ex. OSHA–2008–0032–0012.) The press number of noncompliant products in questions for each topic noted release indicated that 20 EU Member the EU is unknown and the reporting parenthetically): States participated in the study, and 210 systems in the EU lack uniformity. The A. Product safety in an SDoC system extension cords were tested. The results EU’s RAPEX and ICSMS are notification (VI.1 to VI.5). show that only one in six cord- systems used by market-surveillance B. Product risk and specifications extension sets fully complied with the authorities for enforcement purposes. (VI.6 to VI.15). LVD and the General Product Safety Formally called the Community Rapid C. Administration of an SDoC system Directive (GPSD) requirements. (The Information System, RAPEX is used for (VI.16 to VI.26). GPSD specifies requirements for general a number of ‘‘non-food consumer D. Costs of an SDoC system (VI.27 to consumer products used in the EU.) products.’’ It is not typically used for VI.30). Although the noncompliant samples products that are mainly for industrial E. Enforcement of an SDoC system also included those products that or commercial purposes. It also is not (VI.31 to VI.34). exhibited only administrative failures, used for notification of noncompliant F. Effects on trade (VI.35 to VI.37). approximately 58% of the cord- products when ‘‘the effects do not or G. Implementation suggestions by extension sets tested were considered cannot go beyond the territory of a certain industries (VI.38). sufficiently unsafe by the authorities to Member State. * * *’’ (Ex. OSHA– In responding to the questions in this justify a sales ban or product recall. 2008–0032–0021, p. 7.) As a result, section, please explain the reasons OSHA also reviewed a document Member States may judge a number of supporting your views, and identify and prepared by the EC’s staff (Ex. OSHA– actions to be outside the scope of provide the relevant information on 2008–0032–0013), which provided RAPEX and, thus, not report them. which you rely, including data, studies, details about the EU’s market- Therefore, RAPEX results may not give articles, and other materials. surveillance system and served as the an accurate estimate of problems A. Product Safety in an SDoC System basis for associated legislation that the associated with certain products. For EU was considering. This document example, the 2006 annual report for one A major purpose of this RFI is to covers a wide range of issues in a Member State authority showed that it determine whether SDoC approval of number of areas where the EU’s system had 3,770 queries and complaints certain electrical products would needed improvement. related to electrical goods. (Ex. OSHA– provide employees with a high level of Under ‘‘What are the Problems to 2008–0032–0022, p. 29.) The report protection (see section III above). Tackle,’’ the report states, ‘‘Experience further states that about 200 OSHA’s current NRTL Program meets with the implementation of [European] investigations were carried out relating this standard. NRTLs must first evaluate Community legislation in the area of to products that may pose a safety risk. and test a sample, and then perform free movement of goods has highlighted (Id., page 20.) The number of RAPEX follow-up inspections of manufacturing certain weaknesses and shown that the notifications for that country in 2006 facilities to ensure that they continue to effectiveness of the system can still be was 14. (Ex., OSHA–2008–0032–0023, make products that are safe to use. improved.’’ (Ex. OSHA–2008–0032– p. 15.) These inspections are critical, and to 0013, p. 12.) The document also The following questions seek further obtain an adequate level of assurance, declares that, ‘‘It is generally noted that information and data regarding these NRTLs may, if warranted, inspect 100% the enforcement of EU product studies, as well as information and data of all products in a production batch for legislation is unsatisfactory and a pertaining to the effectiveness of the this purpose. OSHA has a number of considerable number of non-compliant EC’s SDoC system. policies that specify controls that (and potentially dangerous) products V.1. The luminaire and cord- NRTLs must have in place to properly reach the market. The share of non- extension projects identified substantial accomplish pre-market evaluation. compliant products can only be noncompliance with the LVD and, if the OSHA then audits each NRTL to ensure estimated and the situation differs very results are representative of the wider that they have instituted these controls much from sector to sector and from array of products for which an SDoC is and that the controls are working Member State to Member State.’’ (Id., p. acceptable, appear to be inconsistent properly. NRTLs deficient in these areas 19.). This statement partially with the EC’s claim regarding the safety must make corrections or face corroborates the findings in the report of products evaluated under their SDoC revocation of their recognition. These on luminaires, which indicated that the system. Is this a valid inference from measures provide the necessary high level of nonconformities results these studies? Do the data and study assurance that OSHA’s current system from difficulties faced by Member States methods have limitations that would provides a high level of protection to in enforcing the LVD. Further, the staff affect this inference? employees. document notes, ‘‘Currently, market V.2. What data and/or record systems One measure of the effectiveness of surveillance does not operate effectively exist in each Member State to track the OSHA’s current system is recalls issued throughout the Community. * * *’’ (Id., effectiveness of their SDoC system? by the Consumer Product Safety p. 20.) The document notes later, ‘‘In V.3. Are other reports and documents Commission (CPSC). The OSHA NRTL practice market surveillance authorities available that evaluate whether the Program staff reviews these recalls, and often experience difficulties in SDoC system implemented by each for those involving products that have identifying the person who has actually Member State is effective or ineffective been certified by an NRTL, the staff has manufactured and/or supplied the in safeguarding product safety? What not identified a recall that was due to products * * *’’ (Id., p. 23.) OSHA is are the strengths and weaknesses of the improper testing by an NRTL. In

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addition, the staff knows of no other further discuss the issue of authority, or other factors or analyses. Knowing data showing that such testing caused below, in part E. exactly how the EC made its product-related injuries to employees. The following questions address determination that equipment rated up OSHA sought information on SDoC issues raised in this part. to 1000 volts AC (1500 volts DC) has a effectiveness during its first RFI on VI.1. In determining whether to low risk of noncompliance and resulting SDoC, but did not receive data or a undertake rulemaking for SDoC, what low safety risk would be helpful to rationale that demonstrated the specific measures and practices should OSHA, as would an explanation as to effectiveness of SDoC in assuring OSHA consider adopting or requiring to why equipment must have such low risk product safety. Most of the respondents provide assurance that product to be eligible for approval through to the specific questions suggested approvals through SDoC will be highly SDoC. As explained earlier in section instead that product safety under SDoC protective to employees? What are the III, OSHA must ensure that equipment needs to be assured through a proper major elements or components needed is a low-risk hazard to employees. postmarket surveillance system, to assure SDoC effectiveness? Therefore, the method of conformity including marketplace and factory VI.2. Should OSHA rely upon other assessment must ensure that the hazard testing, and accreditation of laboratories measures outside its own authority to associated with equipment is low risk. engaged in the testing, even if they are ensure that product approvals through OSHA seeks information on the affiliated with the manufacturer. Also, SDoC will be effective? For example, factors that define low risk of in its rationale, the EC points to reliance how should U.S. product-liability laws noncompliance and on methodologies on liability laws and other protection and consumer-protection programs, as that could be used to determine whether laws for assuring an effective SDoC. suggested by the EC, be considered in a category of electric equipment is likely evaluating a conformity-assessment OSHA now requests information or to have such a low risk. We seek scheme? data clearly demonstrating that product information on whether such an VI.3. In determining whether to adopt approval of electric equipment through analysis has been done, or how one SDoC, what systems should OSHA SDoC is currently a highly protective could be done. In this context, a consider establishing or using to track approach, as well as a description of the noncompliant product is one that fails the effectiveness of SDoC? measures currently in place or other to meet the safety-critical elements of a VI.4. Should the U.S. consider test standard and, thus, would measures that would need to be adopted entering into agreements with other to ensure that an SDoC system for necessarily pose a danger to an countries to permit them to enforce employee. Noncompliance with electrical products will be highly SDoC requirements for products nonsafety-critical elements is not at protective to employees. originating outside of the U.S.? What issue. Postmarket surveillance would be a should be the minimum requirements Certain industry organizations have new activity for OSHA. Adequate under such agreements? argued that SDoC should be limited to administrative and enforcement VI.5. What safety objectives and products that have ‘‘demonstrated an resources and procedures in this area, technical requirements should be met excellent safety record’’ that support based on the information obtained to by manufacturers and others parties their qualification as low risk ‘‘in the date, would need to be extensive, and having obligations under an SDoC workplace.’’ (Ex. OSHA–2008–0032– are critical in assuring product safety system? What tests or risk assessments 0019.) Although this assertion has been under an SDoC system. Such a system should be conducted by manufacturers made for information technology appears to include its infrastructure, or other involved parties? products, OSHA has yet to receive the along with appropriate rules for B. Product Risk and Specifications historical data supporting and/or assuring SDoC effectiveness, and adequately demonstrating the assertion penalties for breaking those rules. The EC has requested that OSHA that the safety records of any type of As indicated by the summary of the allow SDoC for certain electrical products justify SDoC. Also, it is EU’s SDoC system in section V, products, but did not specify the type of unclear whether this safety record is postmarket surveillance would require equipment or the criteria for defining due to low risk of nonconformity or an that OSHA have the legal authority to: this equipment. As noted earlier, the inherently low risk of danger in the establish rules requiring manufacturers EC’s system allows SDoC for products equipment. If this claim is based upon and other parties to take certain actions rated up to 1000 volts AC (1500 volts historical data of electrical products related to issuing SDoCs; take DC). In its rationale, the EC suggests that used in the U.S., then it could be enforcement actions such as product equipment should be eligible for SDoC attributable to a number of factors, recalls, bans, quarantines, and if it has a low risk of noncompliance foremost of which could be the confiscations; and assess financial and with the applicable test standard and prevalence of third-party testing in the criminal penalties on product thus poses a low risk of danger. (Ex. U.S. OSHA requests data that clearly manufacturers, importers, or their OSHA–2008–0032–0008, p. 1.) demonstrate the safety record of this representatives, and, perhaps, on However, the EC provides no equipment, whether favorable or not, as wholesalers and retailers for selling explanation for this concept, which well as information that adequately nonconforming or dangerous products. raises questions about its exact meaning. identifies the underlying reasons for this OSHA’s authority extends to the U.S. It is unclear whether this equipment claim. workplace and, thus, its authority was determined to have a low risk of OSHA also seeks information on regarding SDoC would presumably noncompliance because low risk was whether certain types of electric apply only to products actually used or demonstrated by: historical data equipment have an inherently low risk intended to be used in the U.S. (including the reasons for of posing danger. In the first RFI, OSHA workplace. Further, OSHA does not noncompliance); technical factors asked whether SDoC should be limited have explicit authority to issue product inherent in the equipment or inherent in to ‘‘low voltage (for example, 50 volts or recalls and bans, or to quarantine or the test standard; the manufacturers less) IT equipment. * * *’’ (70 FR confiscate nonconforming products, or performing the testing (i.e. , would they, 69359, November 15, 2005.) No to assess the sort of criminal and regardless of their qualifications or comments were received addressing this financial penalties described above. We actions, manufacture low-risk products); concept, which we again raise here.

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Specifically, we seek information on 2008–0032–0018.) The following VI.13. What justification exists for whether certain products have features questions pertain to the issues discussed establishing a single class of electrical that would inherently limit the risk of in this part. products for inclusion in an SDoC hazard to an employee, which may be VI.6. What data demonstrate that system? What properties do such the result of the requirements of the products sold in the EU (i.e. , operating electrical products have that distinguish product-safety test standards used to at 1000V AC or 1500V DC or less) have them from other products such as evaluate the product. OSHA is aware a low risk of nonconformance with ladders and fire doors that require third- that some standards limit the available applicable standards? How is party product certification? voltage, current, and power (under conformance being determined by the VI.14. Should global test standards be normal and abnormal operating EC, and what requirements or criteria used as a basis for determining conditions) in some electrical products, are used to judge conformance? conformity assessment of products (with thereby lowering risk to employees and VI.7. What data demonstrate that safeguards to adjust for specific U.S. others who may have access to this products operating at these voltages, conditions) and, if so, how does this equipment. In these cases, OSHA seeks current, and power levels present low- approach differ from current conformity information on whether such products risk electrical and fire hazards? assessment practices in the U.S.? would present a low risk of hazard VI.8. In making a determination about VI.15. Are there any aspects of other under the worst-case conditions of rulemaking, how should OSHA U.S. agencies’ SDoC systems (e.g., noncompliance, and thus, whether an determine which products to include CPSC’s ‘‘firewalling’’ authority to SDoC may be an adequate tool for under a possible SDoC system? Should designate a manufacturer’s lab as a ensuring the safety for such products. OSHA consider a product’s risk of harm third-party laboratory) that may be In addition, OSHA seeks information or injury and the potential severity of useful for OSHA to adopt in an SDoC on the possibility of incorporating harm or injury, as well as its risk of system for the safety of electrical aspects of other U.S. agencies’ SDoC- nonconformance with applicable products used in the workplace? Are type systems into any system that OSHA standards? Should OSHA consider there differences between OSHA and may eventually adopt. Conformity production processes (as the EU these agencies that may impede or assessment systems administered by the suggests in their proposal)? What prevent adopting aspects of their SDoC Federal Communications Commission methodology and factors should OSHA system or creating a similar system? (FCC) include tiered levels of consider in determining risk, and what C. Administration of an SDoC system conformity assessment. The FCC level of risk should OSHA consider Information that OSHA has received determines the conformity assessment acceptable? What mechanism should procedure required based on the from the EC and the U.S. government, OSHA consider in evaluating this risk industry associations, and other complexity of testing or the on a continuing basis? telecommunication system or radio- concerned parties indicates that an VI.9. In considering whether to adopt effective SDoC program requires an frequency interference risks associated SDoC, should OSHA consider only with a nonconforming product. Such extensive level of government oversight voltage for defining low risk of of product manufacturers, importers, tiered systems recognize that different nonconformance, a low risk of hazard or levels of conformity assessment are and distributors, and that these entities injury, both of these factors, or other may number in the thousands. necessary for different products or electrical variables? standards based on the type of risks Oversight may include postmarket- VI.10. When considering voltage, surveillance activities, product recall posed by noncompliance. Depending on current, and power as parameters for the product or standard for which authority, penalty assessment, a defining products which present a low complaint-handling system, and testing conformity is being assessed, the FCC risk of nonconformance and a low risk may require evaluation and testing by and inspection of products after they are of injury or harm, should OSHA use in the market. A government oversight an accredited third-party testing limits published in product-specific laboratory or by the FCC, or may permit program may also require developing standards (meaning that different and overseeing a premarket registration SDoC. The CPSC is another U.S. agency products may have different limits), or that makes use of a conformity system for manufacturers and importers, should a single set of limits be and distributors. The EU’s experience assessment system similar to SDoC. established for all products? If a single CPSC has used SDoC-type systems for shows a successful postmarket- set of limits should be established, what surveillance program must have most products under its jurisdiction. In value should the limits be and what August 2008, Congress approved the sufficient resources in terms of number data are available to support the Consumer Product Safety Improvement of inspectors, expertise in the wide assertion that these limits would not Act (CPSIA); it mandates, among other variety of products to be regulated, and present a risk of injury or harm to things, that manufacturers of any the ability to perform the tests necessary employees? children’s products certify that their to ensure conformity. (See Ex. 1–B, pp. VI.11. What other types of data related products under CPSC’s jurisdiction 20–25; Ex. OSHA–2008–0032–0011, pp. to product risk should OSHA review meet federal requirements for consumer- 5 and 7.) OSHA’s existing budget, staff, when considering whether or not to product safety based on testing by an and facilities are not adequate for such adopt SDoC, and are these data readily accredited independent third party. If an effort. available? certain conditions are met, the Act OSHA’s current NRTL Program does VI.12. Should OSHA use the type of allows the CPSC to permit such testing not include postmarket surveillance, manufacturer or industry, or a standard to be conducted by the manufacturer’s product-recall authority, penalty industry classification, in defining the ‘‘firewalled’’ 6 laboratory. (Ex. OSHA– assessment, postmarket testing and appropriate parameters for products that inspection of products, or premarket would be eligible for SDoC? 6 According to the CPSIA, a firewalled laboratory registration of products. OSHA’s is one that is owned, managed, or controlled by a oversight of the program consists of manufacturer or private labeler but which may be manufacturer or private labeler. In addition, certain recognition and audits of NRTLs, of accredited as a third party testing laboratory if the measures must be in place to report to the Commission makes certain findings that the Commission of any attempts by this party to hide which there are a limited number laboratory is protected from undue influence by the or exert undue influence over test results. (currently 15), and investigation of

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complaints. OSHA relies on the NRTLs product supplier has appropriately Extrapolating this figure to the 50 U.S. to exert controls over manufacturers registered with OSHA or an states for an additional rough draft through private-sector mechanisms such organization identified by OSHA? estimate, implementing SDoC could cost as conducting factory inspections and VI.23. What records or reports should approximately $360 million.7 As noted postmarket surveillance. NRTLs OSHA require from manufacturers, above, these estimates are simply conduct premarket testing or rely on importers, and distributors to ensure illustrative of possible costs, and OSHA other parties (including certain product conformance with SDoC? Where should is using this extrapolation to manufacturers) to conduct this testing if these records and reports be approximate the resources needed to the NRTL determines they are qualified. maintained? What access would OSHA implement an SDoC system. The level of Thus, OSHA believes it would need to need to product and production these resources would depend on a adopt fundamental changes to existing information, including foreign-produced number of factors, such as the number requirements under an SDoC system. In equipment? Should OSHA consider of manufacturers, importers, or other considering an SDoC system, OSHA assessing penalties for providing parties that OSHA would need to seeks comment on the following inaccurate or incomplete information? regulate; the number and type of questions that address how to VI.24. What percentage of products that might enter the administer such a system. manufacturers would continue to use workplace; and the sampling techniques VI.16. What administrative systems third-party certification systems like the and other measures that OSHA would are required to effectively run an SDoC NRTL Program even if they were eligible include in an enforcement strategy. system? How much do they cost? How to use SDoC? OSHA also seeks information on who would these systems interact with VI.25. For manufacturers that use should pay these costs, i.e., taxpayers OSHA’s existing operations? Could third-party testing for their SDoC, or, similar to the NRTL system, OSHA expect to recoup any of the costs should OSHA recognize the results of manufacturers, importers, or of running an SDoC program? tests performed by any accredited distributors through fees charged for the VI.17. In determining whether to testing laboratory regardless of location service. undertake rulemaking for SDoC, should without requiring explicit recognition The NRTL Program currently has an OSHA consider accrediting third-party by OSHA? If so, how can OSHA ensure annual operating budget of organizations to conduct postmarket that such laboratories are qualified to approximately $1 million, and a portion testing or surveillance, and, if so, how? perform the testing? What regulatory of which may be reimbursed to the What elements of OSHA’s current NRTL measures should OSHA consider to government by the NRTLs. The cost to Program could be used to implement the encourage the use of accredited tests manufacturers using NRTLs consists of accreditation process? Should current under an SDoC system? fees charged for initial testing of the NRTLs be automatically eligible for VI.26. What obligations should product sample, and then fees paid to conducting postmarket testing and manufacturers and others have to ensure the NRTLs to cover factory inspection surveillance under an SDoC system? that noncompliant products can be costs and certification-mark licensing. It VI.18. Should OSHA consider traced (e.g., through marking and is difficult to derive an accurate requiring manufacturers and importers labeling)? estimate of the total costs to to register their products in a central D. Costs of an SDoC System manufacturers from total NRTL database that identifies supplier- revenues because NRTLs often perform approved products? Should OSHA OSHA seeks information on the costs other non-NRTL work. Therefore, OSHA require manufacturers to obtain to manufacturers associated with seeks adequate and reliable information registration numbers, and require administering the SDoC system on the total cost of its NRTL system to products to bear these registration discussed in this RFI, as well as the cost manufacturers. numbers so that OSHA or its agents can of OSHA’s NRTL Program and the EU’s As noted in one of the EC project monitor supplier-certified equipment? SDoC system. The EC raised the issue of reports described in section V of this Should OSHA assess fees to pay for this cost in its July 2007 statement (see Ex. notice, inadequate budgets are a factor monitoring? OSHA–2008–0032–0003) by claiming driving the level of surveillance VI.19. What advantages or that OSHA’s NRTL system costs EU performed by some EU countries under disadvantages are there to requiring exporters 1.3 billion Euros annually. their SDoC system. As also noted, the manufacturers to establish an office in The EC, however, did not provide the EU has determined that the surveillance the U.S. or requiring the party executing basis for this estimate. OSHA does not and enforcement components of systems the SDoC to be located in the U.S? know the exact resources that would be in at least some Member States are VI.20. Should OSHA consider required to effectively operate an SDoC unsatisfactory. Consequently, current adopting SDoC as an alternative to its system. The following discussion figures from some EU countries may not current third-party approval illustrates the possible costs of reflect the true cost of administering an requirements, as a replacement for these implementing such a system. OSHA has effective SDoC system. OSHA is requirements, or as an extension of the obtained information showing that the interested in obtaining adequate and requirements? How can the two cost of postmarket surveillance for one reliable information on these costs for programs be integrated or perform relatively small EU country is 2 million those EU countries that have a well- complementary roles? Euros, which is $3 million at an VI.21. What responsibilities should exchange rate of about $1.50 per Euro. 7 The small EU country is Finland, which has a importers or employers have to ensure (Ex. OSHA–2008–0032–0014.) population of approximately 5 million. Using the that the products they import have been Extrapolating from this figure to the 50 $3 million postmarket surveillance cost results in a cost of $0.60 per person. The U.S. population is properly approved under an SDoC U.S. states provides a rough draft 300 million, and multiplying this figure by $0.60 system? estimate of approximately $180 million per person results in a total cost of $180 million. VI.22. What responsibilities should for implementing an SDoC system in the The Netherlands, which is the larger EU country, employers have to ensure that the SDoC- U.S. An estimate of the market- has a population of approximately 16.5 million, resulting in a $1.20 cost per person. Thus, the approved products they use have surveillance costs for a larger EU estimate of the cost in the U.S., based on the per- complete and accurate documentation country is 13 million Euros or about $20 person cost in the Netherlands, would be $360 supporting conformance, and that the million (Ex. OSHA–2008–0032–0016). million.

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founded and effective postmarket reasonable time. 29 U.S.C. 658(a). If the months imprisonment, on the first surveillance system. The following employer challenges the citation, offense, for an ‘‘employer who willfully questions solicit information on this abatement is not required until the violates’’ an OSHA standard when the issue. Occupational Safety and Health Review violation causes an employee’s death. VI.27. Are there any available data Commission issues a final order on the 29 U.S.C. 666(e). The OSH Act imposes that show the annual cost to EU Member citation. 29 U.S.C. 659(b). However, the same penalties against ‘‘[w]hoever States of administering their SDoC OSHA may apply to a U.S. District knowingly makes any false statement, systems (e.g., number of products Court for an order requiring an representation, or certification’’ in inspected, number of inspectors, cost of employer to correct an ‘‘imminent documents required to be maintained by inspections, costs of inspectors’ labor)? danger’’ pending the enforcement the OSH Act. 29 U.S.C. 666(g). By If possible, provide any available costs action. 29 U.S.C. 662(a). contrast, the NTMVS Act imposes up to aggregated for the EU as a whole. Compared to the scope of enforcement 15 years imprisonment for making VI.28. Who should pay the operating action granted to OSHA under the OSH misrepresentations with the intent to costs, and what means should OSHA Act, a wider range of enforcement tools mislead the Secretary of Transportation use to pay these costs? For example, is usually available under an SDoC when complying with certain reporting what are the potential advantages and system or to other U.S. government requirements related to motor-vehicle disadvantages of using appropriations, agencies. For example, the EU’s General safety defects that have caused death or registration fees assessed to Product Safety Directive allows the serious bodily injury. 49 U.S.C. manufacturers, fines assessed against responsible national authority (acting in 30170(a). nonconforming products, or other concert with other Member State OSHA is seeking public comment on methods to pay these costs? authorities and with the EC) to issue the following questions concerning VI.29. When comparing SDoC and product bans, withdrawals, and recalls enforcement issues. third-party certification (in particular, for ‘‘dangerous products’’ that pose a VI.31. Would OSHA’s current OSHA’s NRTL Program), are initial ‘‘serious risk.’’ See Directive 2001/95/EC authority grant inspectors performing product-approval costs lower for one of 3 December 2001 on General Product SDoC postmarket surveillance sufficient system than for the other system? If so, Safety, art. 8 & 11, 2002 O.J. (L11) 10– geographic scope to conduct the how much money is saved using the 12; Ex. OSHA–2008–0032–0020, pp. 10– necessary inspections, or are there other less expensive system? 11. The EU also has established the areas to which inspectors might need VI.30. When comparing SDoC and RAPEX and ICSMS systems that advise access that are not covered by this third-party certification (in particular the public of product-safety risks and authority? Would OSHA inspectors OSHA’s NRTL Program), are ongoing nonconformities. (Ex. OSHA–2008– need explicit statutory authority to product-approval costs lower for one 0032–0004, p. 11.) The NHTSA has impound or remove product samples for system than for the other system? If so, authority to require automobile testing under an effective SDoC how much money is saved using the manufacturers to notify motor-vehicle program? less expensive system? purchasers and dealers of defects and VI.32. How should OSHA determine E. Enforcement of an SDoC System nonconformity with motor-vehicle the number of inspections to perform in safety standards, and require motor- a given period and how should it target SDoC systems raise a number of vehicle manufacturers to remedy defects these inspections? What strategies issues concerning enforcement schemes or noncompliance. 49 U.S.C. 30118. The should OSHA use to maximize the required by the OSH Act, including the National Traffic and Motor Vehicle effectiveness and minimize the authority the OSH Act grants to OSHA Safety (NTMVS) Act also allows the resources needed for such inspections? inspectors. The OSH Act currently Department of Justice (DOJ) to seek an VI.33. Is OSHA’s current enforcement allows inspectors the right to inspect injunction in U.S. District Court to authority sufficient to support an ‘‘any factory, plant, establishment, enjoin the sale of defective or effective SDoC system in the U.S.? Does construction site, or other area, nonconforming motor vehicles and OSHA need explicit statutory authority workplace or environment where work equipment. 49 U.S.C. 30163(a). The FCC to issue warnings, notifications of is performed.’’ See 29 U.S.C. 657(a)(1). allows a manufacturer to use, for certain defects or nonconformity, and/or By way of contrast, the National products, a declaration of conformity to product recalls and bans? What Highway Transportation Safety assure compliance with its procedures should be available to OSHA Administration (NHTSA), which electromagnetic-compatibility to enforce these remedies expeditiously operates a manufacturer-certification requirements, and the Federal while avoiding inappropriate program for motor vehicles, has Communication Act gives the DOJ the enforcement action? Are other market authority to inspect motor vehicles authority to seize equipment made, controls needed? wherever they are held for sale in possessed, or sold with the intent to VI.34. Given the importance of interstate commerce, as well as violate the FCC’s regulations. 47 U.S.C. accurate manufacturer declarations to locations where motor vehicle accidents 510. an effective SDoC system, do the OSH occur. 49 U.S.C. 30166(c)(3). Thus, the If manufacturers are allowed to take a Act’s current criminal penalties, or any NHTSA’s inspection authority appears major role in guaranteeing the safety of other applicable Federal criminal to have a broader geographical scope their products through an SDoC system, statutes, serve as a sufficient deterrent to than OSHA’s authority. sufficient criminal penalties for making false declarations? The OSH Act’s enforcement scheme substantial violations may be necessary differs from that typically found in to sustain public confidence in this F. Effects on Trade SDoC regimes. Under the Act, OSHA system. In this regard, a Canadian case One of the primary reasons that the inspectors are authorized to: cite study notes that the SDoC systems it EC requested OSHA to consider SDoC is employers for violations of the OSH Act, analyzed usually had criminal penalties, the EC’s belief that the NRTL system is including its associated standards and though these penalties were rarely an unnecessary barrier to trade. regulations; propose an assessment of a applied. (Ex. 1–B, p. 9, Docket NRTL03– Although OSHA considers the trade civil monetary penalty; and require SDOC.) The OSH Act makes it a crime impacts of its requirements when abatement of the violation within a punishable by a $10,000 fine and six- developing them, it is interested in any

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information or analysis regarding the reduction in product time to market for any aspect of the issue on which they effect of its NRTL approval one system compared to other systems? believe they can contribute. Please requirements or the NRTL Program on If so, how much time is saved? Does the identify any organization you represent trade. time saved vary by product? Is SDoC and your position with that OSHA believes that its current system faster than third-party certification for organization, and you may describe any facilitates trade. The NRTL Program has some products and slower for others? qualifications which you believe are optional procedures in place to avoid VI.37. Please provide specific relevant to your comment. You are free duplicating conformity-assessment of examples of how each system impacts to provide any information that you products. These options permit the trade. Provide any data, if available, on believe would be useful to OSHA, NRTLs to accept test results from other how each system may be a barrier or a including any data or supporting parties (including certain product help to trade by affecting product time documentation. However, as noted in manufacturers) if the NRTL determines to market, reduced profits, or other section I, OSHA particularly seeks that these parties are qualified. Through effects. comments that include specific, these options, if an EU manufacturer has G. Implementation Suggestions by detailed, and credible scientific, the qualifications to do the testing or Certain Industries technical, statistical, and similar data uses testing performed by a qualified and studies that support claims made by test laboratory, the NRTL can rely on the In August 2008, OSHA received a commenters. testing submitted by the manufacturer submission from three industry OSHA will review all timely and avoid retesting products. In Europe, associations advocating that OSHA comments and determine whether to there are 250 laboratories or permit ‘‘safety approvals for a limited initiate rulemaking or take other action manufacturers that provide testing to scope of information and with respect to SDoC, or to take no NRTLs. In addition, NRTLs that are communication technology products to further action. members of the internationally include the use of Supplier’s recognized International Declaration of Conformity (SDoC) as an VIII. Authority and Signature Electrotechnical Commission option to (not a replacement for) third- This document was prepared under Certification Body (IEC–CB) system may party certification.’’ (Ex. OSHA–2008– the direction of Edwin G. Foulke, Jr., use testing performed by organizations 0032–0019.) This submission Assistant Secretary of Labor for accredited under that scheme. The IEC– compliments the EC’s proposal by Occupational Safety and Health, 200 CB system was established in large part providing specific suggestions on how Constitution Avenue, NW., Washington, to facilitate trade (both export and OSHA should permit and implement DC 20210. This action is taken pursuant import) of electrical products. Under SDoC. While the focus of this RFI is the to sections 4, 6, and 8 of the this system, a manufacturer in one EC’s proposal, OSHA seeks, through the Occupational Safety and Health Act of country has its product tested by one of following question, comments on the 1970 (29 U.S.C. 657), Secretary of its country’s member laboratories. This issues and approach outlined in this Labor’s Order No. 5–2007 (72 FR laboratory issues a test report that the industry submission. 31159), and 29 CFR Part 1911. manufacturer can submit to a member VI.38. If OSHA were to implement SDoC, should it follow the approach in Signed at Washington, DC, on October 14, laboratory in another country, which 2008. the industry submission, either partially will use the report to determine whether Edwin G. Foulke, Jr. to approve the manufacturer’s product or completely? If partially, which industry suggestions should OSHA Assistant Secretary of Labor for Occupational for export to that country. Safety and Health. These various options allow NRTLs to consider? What are the advantages and rely on other qualified entities to disadvantages of the industry approach? [FR Doc. E8–24826 Filed 10–17–08; 8:45 am] perform testing and certification. These Would the industry approach affect BILLING CODE 4510–26–P options can reduce the cost and time your response to any of the other required to obtain product approvals by questions in this section, and, if yes, NRTLs, which in turn reduces the cost how would your response differ? In MORRIS K. UDALL SCHOLARSHIP and time to market for products. A addition, please provide any comments AND EXCELLENCE IN NATIONAL NRTL’s responsibility is to ensure the you want on issues raised by the ENVIRONMENTAL POLICY accuracy of the data provided by these industry submission that are not FOUNDATION, THE UNITED STATES qualified entities. NRTLs work closely covered by the questions in this RFI. INSTITUTE FOR ENVIRONMENTAL CONFLICT RESOLUTION with qualified manufacturers, both large VII. Responding to This RFI and small, to avoid any unnecessary OSHA welcomes information, data, Agency Information Collection delays and costs. Activities; Extension of Currently Through the following questions, and comment on SDoC generally, and Approved Information Collection; OSHA seeks information on how its the EC’s proposal specifically. OSHA Comment Request; U.S. Institute for NRTL Program and the EU’s system of has provided a number of questions Environmental Conflict Resolution conformity assessment hinders or above to provide a framework for the Application for the National Roster of facilitates trade. public to respond to this RFI. However, VI.35. In considering impacts on you can provide comment or Environmental Dispute Resolution and trade, how should OSHA compare SDoC information on any aspect of the broad Consensus Building Professionals and third-party certification (in areas mentioned above, and not limit AGENCY: Morris K. Udall Scholarship particular OSHA’s NRTL Program) to your answers to the specific questions and Excellence in National determine if one system adds more posed. In responding to the questions in Environmental Policy Foundation, U.S. value to trade than the other system? If this RFI, please explain the reasons Institute for Environmental Conflict such comparisons have been made, supporting your views, and identify and Resolution. what is the increase in value? provide the relevant information on ACTION: Notice. VI.36. When comparing SDoC and which you rely, including data, studies, third-party certification (in particular articles, and other materials. SUMMARY: In compliance with the OSHA’s NRTL Program), is there any Respondents are encouraged to address Paperwork Reduction Act and

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supporting regulations, this document SUPPLEMENTARY INFORMATION: Bureau of Labor Statistics reports for announces that the U.S. Institute for Abstract: The U.S. Institute is a valuing time (civilian workers category Environmental Conflict Resolution (the federal program established by Congress of ‘‘professionals and related Institute), part of the Morris K. Udall to assist parties in resolving occupations’’: $44.78 per hour) rather Foundation, is submitting to the Office environmental, natural resource, and than estimated contractor rates. of Management and Budget (OMB) a public lands conflicts. The U.S. Institute (Authority: 20 U.S.C. 5601–5609) request for an extension for the serves as an impartial, non-partisan currently approved information institution, and accomplishes much of Dated the 9th day of October 2008. collection (ICR), OMB control Number its work by partnering, contracting with, Ellen Wheeler, 3320–0008: Application for the National or referral to, experienced practitioners. Executive Director, Morris K. Udall Roster of Environmental Dispute In addition, the U.S. Institute maintains Scholarship and Excellence in National Resolution and Consensus Building, the National Roster of Environmental Environmental Policy Foundation, and Federal Register Liaison Officer. currently operating pursuant to OMB Dispute Resolution and Consensus clearance issued October 25, 2005 and Building Professionals (National ECR [FR Doc. E8–24835 Filed 10–17–08; 8:45 am] which expires January 31, 2009 (OMB Roster or roster). The Application for BILLING CODE 6820–FN–P granted extension from previous the National Roster of Environmental expiration date of October 31, 2008). Dispute Resolution and Consensus The U.S. Institute published a Federal Building Professionals (application) NATIONAL ARCHIVES AND RECORDS Register Notice on July 30, 2008 (73 FR compiles data available from the ADMINISTRATION 44289–44290), to solicit public resumes of environmental neutrals comments for a 60-day period. The U.S. (mediators, facilitators, etc.) into a Temporary Change in Hours at Central Institute received no comments. Thus, format that is standardized for efficient Plains Regional Archives, Kansas City, no changes were made to the and fair eligibility review, database MO searches, and retrievals. The roster, the application. The purpose of this notice AGENCY: National Archives and Records is to allow an additional 30 days for application and the related entry Administration (NARA). public comments regarding this criteria, were developed collaboratively ACTION: Notice. information collection. Comments are and with the support of the invited on: (1) Whether the proposed Environmental Protection Agency. A SUMMARY: The Central Plains Regional collection of information is necessary professional needs complete the Archives will be temporarily closed to for the proper performance of the application form one time. Once an researchers on Mondays from the week functions of the agency, including application is approved, the roster of October 20, 2008, through the week whether the information has practical member has access to update of March 30, 2009, to prepare for utility; (2) the accuracy of the agency’s information online. The proposed relocation to the new Central Plains estimate of the time spent completing collection is necessary to support Regional Headquarters and Regional the application (burden of the proposed ongoing maintenance of the roster and Archives. collection of information), including the a continuous, open application process. validity of the methodology and The application and supplementary DATES: October 20, 2008 through March assumptions used; (3) ways to enhance information are available from the U.S. 30, 2009. the quality, utility, and clarity of the Institute’s Web site. From http:// ADDRESSES: The current address is information collected; (4) ways to www.ecr.gov/Resources/Roster/ NARA Central Plains Regional Archives, minimize the burden of the collection of Roster.aspx, choose the right-hand 2312 East Bannister Road, Kansas City, information on those who are to navigation bar link to ‘‘Roster MO 64131. The new address will be respond, including through the use of Application: Info and Log In’’. Central Plains Regional Headquarters appropriate automated electronic, Burden Statement: Burden for and Regional Archives, 400 West mechanical, or other technological potentially affected public: Pershing Road, Kansas City, MO. collection techniques or other forms of environmental dispute resolution and FOR FURTHER INFORMATION CONTACT: information technology. consensus building professionals (new Diana Duff at 816–268–8013. respondents); existing roster members DATES: Comments must be submitted on SUPPLEMENTARY INFORMATION: In April (for updating). 2009, the Central Plains Regional or before November 19, 2008. Proposed Frequency of Response: One Archives will move to a new facility at ADDRESSES: Direct comments to: Office initial, with voluntary updates the Union Station complex in Kansas of Information and Regulatory Affairs, approximately once per year. City. The new facility will greatly Office of Management and Budget Annual Number of Respondents: 30 improve public access to archival (OMB), Attention: Heidi King, 725 17th (new response); 125 (update). records and ensure that the archival Street, NW., Washington, DC 20503, Time per Respondent: 2.5 hours (new records are stored under proper Desk Officer for The Morris K. Udall response); 15 minutes (update). environmental conditions. In addition, Scholarship and Excellence in National Total Annual Hours Burden: 106 (new some of the Region’s less frequently Environmental Policy Foundation, U.S. response and update combined). used archival holdings are being moved Institute for Environmental Conflict Annual Cost Burden: $3,359 (new to NARA’s Lee’s Summit, MO, facility. Resolution, response); $1,399 (update). The temporary, once-weekly closure [email protected]. Total Annual Cost Burden: $4,758 (new response and update combined); will allow staff to complete activities FOR FURTHER INFORMATION CONTACT: labor costs exclusively; no capital or necessary for the move, such as Kathleen Docherty, Roster Manager, start-up costs. reboxing, description, and holdings U.S. Institute for Environmental Conflict Changes in the Estimates: There are maintenance. The actual shipping of Resolution, 130 South Scott Ave., no changes in the labor hours in this records will take place through March Tucson, Arizona 85701. Fax: 520–670– ICR compared to the previous ICR. The 2009. During the move, there may be 5530. Phone: 520–901–8501. E-mail: reduction in cost figures from the delays in retrieving records that are in [email protected]. previous ICR are due to use of current transit. A listing of records in transit is

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posted and regularly updated on the Estimated No. of Respondents/Record The applications received are as NARA Web site at http:// keepers: 30. follows: www.archives.gov/central-plains/ Estimated Burden Hours per Permit Application No. 2009–021 kansas-city/records-unavailable.html. Response: 1⁄2 hour (30 minutes). Dated: October 14, 2008. Frequency of Response: Monthly. 1. Applicant: Michael Bartalos, 30 Estimated Total Annual Burden Thomas E. Mills, Ramona Avenue, #2, San Francisco, Hours: 180 hours. CA 94103. Assistant Archivist for Regional Records Estimated Total Annual Cost: 0. Services. Activity for Which Permit Is Requested [FR Doc. E8–24933 Filed 10–17–08; 8:45 am] By the National Credit Union Administration Board on October 15, 2008. BILLING CODE 7515–01–P Enter Antarctic Specially Protected Mary Rupp, Areas (ASPA’s). The applicant is a Secretary of the Board. participant in the USAP Artists and NATIONAL CREDIT UNION [FR Doc. E8–24847 Filed 10–17–08; 8:45 am] Writer’s Program and plans to visit the ADMINISTRATION BILLING CODE 7535–01–P historic huts (ASPA 155—Cape Evans, ASPA 157—Backdoor Bay, Cape Royds Agency Information Collection and ASPA 158 Hut Point, Ross Island) Activities: Submission to OMB for a NATIONAL SCIENCE FOUNDATION in order to take photographs and videos New Collection; Comment Request of the physical materials that comprise Notice of Permit Applications Received the structures and their contents. The AGENCY: National Credit Union Under the Antarctic Conservation Act applicant will research and report (in a Administration (NCUA). of 1978 (Pub. L. 95–541) blog) on the extent to which their ACTION: Request for comment. inhabitants might have re-used and AGENCY: National Science Foundation. SUMMARY: recycled the materials. The NCUA is submitting the ACTION: Notice of Permit Applications following information collection to the Received under the Antarctic Location Office of Management and Budget Conservation Act of 1978, Public Law McMurdo Sound region, Antarctica. (OMB) for review and clearance under 95–541. the Paperwork Reduction Act of 1995 Dates (Pub. L. 104–13, 44 U.S.C. Chapter 35). SUMMARY: The National Science This information collection is published Foundation (NSF) is required to publish December 30, 2008 to January 30, to obtain comments from the public. notice of permit applications received to 2009. DATES: Comments will be accepted until conduct activities regulated under the Nadene G. Kennedy, November 19, 2008. Antarctic Conservation Act of 1978. Permit Officer, Office of Polar Programs. ADDRESSES: Interested parties are NSF has published regulations under invited to submit written comments to the Antarctic Conservation Act at Title [FR Doc. E8–24846 Filed 10–17–08; 8:45 am] the NCUA Clearance Officer listed 45 Part 670 of the Code of Federal BILLING CODE 7555–01–P below: Regulations. This is the required notice Clearance Officer: Mr. Jeryl Fish, of permit applications received. NATIONAL SCIENCE FOUNDATION National Credit Union Administration, DATES: Interested parties are invited to 1775 Duke Street, Alexandria, VA submit written data, comments, or Notice of Permits Issued Under the 22314–3428, Fax No. 703–837–2861, views with respect to this permit Antarctic Conservation Act of 1978 E-mail: [email protected]. application by November 19, 2008. This FOR FURTHER INFORMATION CONTACT: application may be inspected by AGENCY: National Science Foundation. Requests for additional information or a interested parties at the Permit Office, ACTION: Notice of permits issued under copy of the information collection address below. request should be directed to Tracy the Antarctic Conservation Act of 1978, ADDRESSES: Comments should be Public Law 95–541. Sumpter at the National Credit Union addressed to Permit Office, Room 755, Administration, 1775 Duke Street, Office of Polar Programs, National SUMMARY: The National Science Alexandria, VA 22314–3428, or at (703) Science Foundation, 4201 Wilson 518–6444. Foundation (NSF) is required to publish Boulevard, Arlington, Virginia 22230. notice of permits issued under the SUPPLEMENTARY INFORMATION: Proposal FOR FURTHER INFORMATION CONTACT: Antarctic Conservation Act of 1978. for the following collection of Nadene G. Kennedy at the above This is the required notice. information: address or (703) 292–7405. Title: Large Credit Union Financials FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: and Board Packages. The Nadene G. Kennedy, Permit Office, OMB Number: 3133–NEW. National Science Foundation, as Office of Polar Programs, Rm. 755, Form Number: None. directed by the Antarctic Conservation National Science Foundation, 4201 Type of Review: New collection. Act of 1978 (Pub. L. 95–541), as Wilson Boulevard, Arlington, VA 22230. Description: The region needs the amended by the Antarctic Science, information to effectively monitor Tourism and Conservation Act of 1996, SUPPLEMENTARY INFORMATION: On August financial trends and emerging issues of has developed regulations for the 29, September 2, and September 3, federally insured credit unions (FICUs) establishment of a permit system for 2008, the National Science Foundation $1 billion or greater between onsite various activities in Antarctica and published notices in the Federal visitations. These institutions present designation of certain animals and Register of permit applications received. greater risk to the NCUSIF due to their certain geographic areas a requiring Permits were issued on October 10, asset size and complexity. special protection. The regulations 2008 to: Respondents: Federally insured credit establish such a permit system to Permit No. 2009 WM–003 unions (FICUs) with $1 billion or greater designate Antarctic Specially Protected in assets. Areas. Olav Malver, Explorer’s Corner

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Permit No. 2009 WM–004 On July 30, 2008, the Board Maryland, and through the NRC Web David Rootes, Antarctic Logistics & conducted a one-day initial prehearing site, http://www.nrc.gov. Additionally, as provided in 10 CFR Expeditions conference in Scottsboro, Alabama, during which it heard oral presentations 2.315(a), any person not a party to the Permit No. 2009–013 regarding the standing of each of the proceeding may submit a written Robert Pittman Joint Petitioners, the timeliness of their limited appearance statement. Limited hearing petition, and the admissibility appearance statements, which are Nadene G. Kennedy, of their twenty-four proffered placed in the docket for the hearing, Permit Officer. contentions. Thereafter, in a September provide members of the public with an [FR Doc. E8–24875 Filed 10–17–08; 8:45 am] 12, 2008 issuance, finding that Joint opportunity to make the Board and/or BILLING CODE 7555–01–P Petitioners SACE and BREDL had the participants aware of their concerns established the requisite standing to about matters at issue in the proceeding. intervene in this proceeding and that A written limited appearance statement NUCLEAR REGULATORY they had timely submitted four can be submitted at any time and should COMMISSION admissible contentions concerning the be sent to the Office of the Secretary TVA COL application, the Board using one of the methods prescribed [Docket Nos. 52–014–COL and 52–015– admitted these two entities as parties to below: COL; ASLBP No. 08–864–02–COL–BD01] this proceeding. See Tennessee Valley Mail to: Office of the Secretary, Rulemakings and Adjudications Staff, Atomic Safety and Licensing Board Authority (Bellefonte Nuclear Power U.S. Nuclear Regulatory Commission, Panel; In the Matter of Tennessee Plant Units 3 and 4), LBP–08–16, 68 NRClll (Sept. 12, 2008). Washington, DC 20555–0001. Valley Authority (Bellefonte Nuclear Fax to: (301) 415–1101 (verification In light of the foregoing, please take Power Plant Units 3 and 4); Notice of (301) 415–1966). notice that a hearing will be conducted Hearing (Application for Combined E-mail to: [email protected]. Operating License) in this proceeding. Subject to any Board determination regarding any request to In addition, a copy of the limited October 14, 2008. utilize formal hearing procedures under appearance statement should be sent to Before the Licensing Board: G. Paul Bollwerk, 10 CFR Part 2, Subpart G, see 10 CFR the Licensing Board Chairman using the III, Chairman; Dr. Anthony J. Baratta; Dr. 2.310(d), the hearing on contested same method at the address below: Mail to: Administrative Judge G. Paul William W. Sager. matters will be governed by the informal Bollwerk, III, Atomic Safety and This proceeding concerns the October hearing procedures set forth in 10 CFR Licensing Board Panel, Mail Stop T– 30, 2007 application of the Tennessee Part 2, Subparts C and L, 10 CFR 2.300– 3F23, U.S. Nuclear Regulatory Valley Authority (TVA) for a 10 CFR 2.390, 2.1200–12.1213. Commission, Washington, DC 20555– Part 52 combined operating license During the course of this contested 0001. (COL). This TVA COL application seeks proceeding, the Board may conduct an Fax to: (301) 415–5599 (verification approval for the construction and oral argument, as provided in 10 CFR (301) 415–7550). operation of two new nuclear reactors 2.331, may hold additional prehearing E-mail to: [email protected]. on the existing Bellefonte Nuclear conferences pursuant to 10 CFR 2.329, At a later date, the Board may entertain Power Plant site near Scottsboro, and may conduct evidentiary hearings oral limited appearance statements at a Alabama. In response to a February 8, in accordance with 10 CFR 2.327–2.328, location or locations in the vicinity of 2008 notice of hearing and opportunity 2.1206–2.1208. The public is invited to the proposed site for Bellefonte Units 3 to petition for leave to intervene, 73 FR attend any oral argument, prehearing and 4. Notice of any oral limited 7611 (Feb. 8, 2008), as amended by conference, or evidentiary hearing. appearance sessions will be published Commission order on April 7, 2008, 73 Notices of those sessions will be in the Federal Register and/or made id. 19,904 (Apr. 11, 2008), on June 6, published in the Federal Register and/ available to the public at the NRC PDR 2008, the Southern Alliance for Clean or made available to the public at the and on the NRC Web site, www.nrc.gov. Energy (SACE), the Blue Ridge NRC Public Document Room (PDR), Documents relating to this proceeding Environmental Defense League located at One White Flint North, 11555 are available for public inspection at the (BREDL), and BREDL’s Bellefonte Rockville Pike (first floor), Rockville, Commission’s PDR or electronically Efficiency and Sustainability Team from the publicly available records (BEST) chapter (collectively Joint regarding matters raised by the presiding officer component of NRC’s document system Petitioners) filed a request for hearing concerning the conduct of the staff’s safety and (ADAMS). ADAMS is accessible from environmental reviews. During that mandatory and petition to intervene contesting the the NRC Web site at http://www.nrc.gov/ TVA COL application. On June 12, hearing, the presiding officer will explore issues associated with the Bellefonte COL application that reading-rm/adams.html (the Public 2008, the Commission referred the are not the subject of this ‘‘contested’’ proceeding Electronic Reading Room). Persons who petition to the Atomic Safety and regarding the Joint Petitioners contentions admitted do not have access to ADAMS, or who for litigation, and will make a determination Licensing Board Panel to conduct any encounter problems in accessing the subsequent adjudication. On June 18, concerning the adequacy of the staff’s safety and environmental reviews, as well as certain documents located in ADAMS, should 2008, a three-member Atomic Safety independent National Environmental Policy Act contact the NRC PDR Reference staff by and Licensing Board was established to findings. See 10 CFR 52.97(a)(1). Current telephone at 1–800–397–4209, 301– Commission policy calls for the Commission itself preside over the contested portion of 415–4737, or by e-mail to [email protected]. this COL proceeding. See 73 FR 35,714 to conduct the mandatory hearing for the Bellefonte Units 3 and 4 COL application. See Memorandum It is so ordered. (June 24, 2008).1 to Luis A. Reyes, Executive Dir. for Operations, For the Atomic Safety and Licensing Karen D. Cyr, General Counsel, Frank P. Gillespie, 2 1 Consistent with section 189a.(1)(A) of the Executive Dir., Advisory Comm. on Reactor Board. Atomic Energy Act, 42 U.S.C. 2239(a)(1)(A), in Safeguards, from Annette L. Vietti-Cook, Secretary connection with the TVA Bellefonte COL of the Comm’n, Staff Requirements—COMDEK–07– 2 Copies of this notice of hearing were sent this application the agency also must conduct a 0001/COMJSM–07–0001—Report of the Combined date by the agency’s E-Filing system to the counsel/ ‘‘mandatory’’ or ‘‘uncontested’’ hearing in which it License Review Task Force at 1 (June 22, 2007) representatives for (1) Applicant TVA; (2) Joint will receive evidence from TVA and the NRC staff (ADAMS Accession No. ML071760109). Intervenors SACE and BREDL; and (3) the staff.

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Dated: October 14, 2008. August 7, 2008 (ADAMS Accession No. on it. Subsequently, to implement the G. Paul Bollwerk, III, ML082270658), August 26, 2008 Interim Policy Statement, each reactor Chairman, Rockville, Maryland. (ADAMS Accession No. ML082600594), vendor owners group and the NRC staff [FR Doc. E8–24892 Filed 10–17–08; 8:45 am] and September 3, 2008 (ADAMS began developing STS for reactors BILLING CODE 7590–01–P Accession No. ML082490154). The supplied by each vendor. The information provided to the Nuclear Commission then published its ‘‘Final Regulatory Commission (NRC) staff Policy Statement on Technical NUCLEAR REGULATORY through the joint NRC-FirstEnergy Specifications Improvements for nuclear COMMISSION Nuclear Operating Company improved Power reactors’’ (58 FR 39132), dated technical specifications (ITS) July 22, 1993, in which it addressed [Docket No. 50–346] conversion web page hosted by Excel comments received on the Interim FirstEnergy Nuclear Operating Services Corporation can be found in Policy Statement, and incorporated Company; Davis-Besse Nuclear Power these supplements. To expedite its experience in developing the STS. The review of the application, the NRC staff Station, Unit No. 1; Environmental Final Policy Statement formed the basis issued its requests for additional Assessment and Finding of No for a revision to 10 CFR 50.36 (60 FR information (RAI) through the DBNPS Significant Impact 36953), dated July 19, 1995, that ITS Conversion web page and the codified the criteria for determining the The U.S. Nuclear Regulatory licensee addressed the RAI by providing content of TS. The NRC Committee to Commission (the Commission, NRC) is responses on the web page. Entry into Review Generic Requirements reviewed considering issuance of an amendment the database is protected so that only the STS, made note of their safety for Facility Operating License No. NPF– the licensee and NRC reviewers can merits, and indicated its support of 3, issued to FirstEnergy Nuclear enter information into the database to conversion by operating plants to the Operating Company (the licensee, add RAIs (NRC) or provide responses to STS. For DBNPS, NUREG–1430 FENOC), for operation of the Davis- the RAIs (licensee); however, the public Revision 3.0 and the following NRC Besse Nuclear Power Station, Unit No. can enter the database to read the approved TSTF–369 Revision 1, TSTF– 1 (DBNPS) located in Ottawa County, questions asked and the responses 372 Revision 4, TSTF–400 Revision 1, Ohio. Pursuant to Title 10 of the Code provided. To be in compliance with the TSTF–439 Revision 2, TSTF–449 of Federal Regulations (10 CFR) regulations for written communications Revision 4, TSTF–479 Revision 0, Sections 51.21 and 51.32, the NRC is for license amendment requests, and to TSTF–482 Revision 0, and TSTF–485 issuing this environmental assessment have the database on the DBNPS Revision 0, document the STS and form and finding of no significant impact. dockets before the amendment is issued, the basis for DBNPS conversion to the The Notice of Consideration of Issuance the licensee will submit a copy of the ITS. of Amendment was published in the database in a submittal to the NRC after The proposed changes to the CTS are Federal Register (FR) on May 22, 2008 there are no further RAIs and before the based on NUREG–1430 and the (73 FR 29787). amendment is issued. The public can guidance provided in the Final Policy access the Web site by going to http:// Statement. The objective of this action Environmental Assessment www.excelservices.com. Once at the is to rewrite, reformat, and streamline Web site, click on ‘‘Davis Besse’’ on the Identification of the Proposed Action the CTS (i.e., to convert the CTS to the left side of the screen. Upon clicking the ITS). Emphasis was placed on human The proposed action would be a full link, the Web site will inform you that factors principles to improve clarity and conversion from the current technical ‘‘you are about to enter the DAVIS understanding. The ITS Bases section specifications (CTS) to the improved BESSE Improved Technical has been significantly expanded to technical specifications (ITS) consistent Specification Licensing On-Line clarify and better explain the purpose with improved standard technical Question and Answer Database.’’ At this and foundation of each specification. In specifications as described in ‘‘Standard point, click on ‘‘Click Here to continue.’’ addition to NUREG–1430, portions of Technical Specifications Babcock and This will bring you to the ITS Licensing Wilcox Plants,’’ Revision 3.0 (STS) Database. The RAIs and responses to the CTS were also used as the basis for (Agencywide Documents Access and RAIs are organized by ITS Sections 1.0, the development of the DBNPS ITS. The Management System (ADAMS) 2.0, 3.0, 3.1 through 3.9, 4.0, and 5.0. NRC staff discussed plant-specific Accession No. ML041800598). STS For every listed ITS section, there is a issues (i.e., unique design features, Revision 3.0 consists of the following RAI which can be read by clicking on requirements, and operating practices) NRC approved TS Task Force Travelers the ITS section number. The RAI with the licensee. (TSTFS) TSTF–369 Revision 1, TSTF– question(s) and the licensee’s Relocated specifications include those 372 Revision 4, TSTF–400 Revision 1, response(s) are contained on the same changes to the CTS that relocate certain TSTF–439 Revision 2, TSTF–449 web page. requirements which do not meet the 10 Revision 4, TSTF–479 Revision 0, CFR 50.36 selection criteria. These TSTF–482 Revision 0, and TSTF–485 The Need for the Proposed Action requirements may be relocated to the Revision 0. The proposed action also The Commission’s ‘‘Proposed Policy Bases section, updated safety analysis encompasses the beyond scope issues Statement on Technical Specifications report, core operating limits report, included in the Notice of Consideration Improvements for Nuclear Power operational quality assurance plan, of Issuance of Amendment. Reactors’’ (52 FR 3788), dated February plant procedures, or other licensee- The proposed action is in accordance 6, 1987, contained an Interim Policy controlled documents. Relocating with the licensee’s application dated Statement that set forth objective criteria requirements to licensee-controlled August 3, 2007 (ADAMS Accession No. for determining which regulatory documents does not eliminate them, but ML072200448), as supplemented by requirements and operating restrictions rather, places them under more letters dated May 16, 2008 (2 letters) should be included in the technical appropriate regulatory controls (i.e., 10 (ADAMS Accession Nos. ML081480464 specifications (TS). When it issued the CFR 50.54(a)(3), and 10 CFR 50.59) to and ML081430105), July 23, 2008 Interim Policy Statement, the manage their implementation and future (ADAMS Accession No. ML082070079), Commission also requested comments changes.

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The proposed action is necessary to Agencies and Persons Consulted SECURITIES AND EXCHANGE allow the licensee to implement the ITS. COMMISSION The ITS are based on standard Babcock On July 14, 2008, the NRC staff [Release No. 34–58765; File No. 4–551] and Wilcox TSs. They are considered an consulted with the Ohio State official, Carol O’Claire of the Department of improvement over the CTS. Program for Allocation of Regulatory Public Safety, regarding the Responsibilities Pursuant to Rule 17d– Environmental Impacts of the Proposed environmental impact of the proposed 2; Notice of Filing and Order Action action. The State official had no Approving and Declaring Effective an The NRC has completed its safety comments. Amendment to the Plan for the evaluation of the proposed action and Allocation of Regulatory concludes that the proposed TS Finding of No Significant Impact Responsibilities Among the American conversion would not increase the On the basis of the environmental Stock Exchange LLC, Boston Stock probability or consequences of accidents assessment, the NRC concludes that the Exchange, Inc., Chicago Board previously analyzed and would not proposed action will not have a Options Exchange, Incorporated, affect facility radiation levels or facility significant effect on the quality of the International Securities Exchange, radiological effluents due to the fact that human environment. Accordingly the LLC, Financial Industry Regulatory no physical facility is being affected. NRC has determined not to prepare an Authority, Inc., The NASDAQ Stock The details of the staff’s safety environmental impact statement for the Market LLC, NYSE Arca, Inc., and evaluation will be provided in the proposed action. NASDAQ OMX PHLX, Inc., Relating to license amendment. Specifically, the Options Market Surveillance proposed TS changes will not increase For further details with respect to the the probability or consequences of proposed action, see the licensee’s letter October 9, 2008. accidents. No changes are being made in dated August 3, 2007 (ADAMS Notice is hereby given that the the types or amounts of any effluent that Accession No. ML072200448), as Securities and Exchange Commission may be released offsite, and there is no supplemented by letters dated May 16, (‘‘Commission’’) has issued an Order, significant increase in the allowable 2008 (2 letters) (ADAMS Accession Nos. pursuant to Section 17(d) of the individual or cumulative occupational ML081480464 and ML081430105), July Securities Exchange Act of 1934 radiation exposure. Therefore, there are 23, 2008 (ADAMS Accession No. (‘‘Act’’),1 approving and declaring no significant radiological ML082070079), August 7, 2008 effective an amendment to the plan for environmental impacts associated with (ADAMS Accession No. ML082270658), allocating regulatory responsibility the proposed action. August 26, 2008 (ADAMS Accession (‘‘Plan’’) filed pursuant to Rule 17d–2 of With regard to potential No. ML082600594), and September 3, the Act,2 by the American Stock nonradiological impacts, the proposed 2008 (ADAMS Accession No. Exchange LLC (‘‘Amex’’), Boston Stock action does not have a potential to affect ML082490154). The information Exchange, Inc. (‘‘BSE’’), Chicago Board any historic sites because no previously provided to the Nuclear Regulatory Options Exchange, Incorporated undisturbed area will be affected by the Commission (NRC) staff through the (‘‘CBOE’’), International Securities proposed TS changes. It does not affect joint NRC-FirstEnergy Nuclear Exchange, LLC (‘‘ISE’’), Financial nonradiological plant effluents and has Operating Company improved technical Industry Regulatory Authority, Inc. no other environmental impact. No specifications (ITS) conversion web (‘‘FINRA’’), The NASDAQ Stock Market physical facility is being affected by this page hosted by Excel Services LLC (‘‘NASDAQ’’), NYSE Arca, Inc. change. Therefore, there are no Corporation can be found in these (‘‘NYSE Arca’’), and NASDAQ OMX significant nonradiological supplements. Documents may be PHLX, Inc. (‘‘Phlx’’) (collectively, ‘‘SRO environmental impacts associated with examined, and/or copied for a fee, at the Participants’’) concerning options- the proposed action. Accordingly, the NRC’s Public Document Room (PDR), related market surveillance. NRC concludes that there are no located at One White Flint North, Public significant environmental impacts File Area O1 F21, 11555 Rockville Pike I. Introduction associated with the proposed action (first floor), Rockville, Maryland. Section 19(g)(1) of the Act,3 among and, thus, the proposed action will not Publicly available records will be other things, requires every self- have any significant impact to the accessible electronically from the regulatory organization (‘‘SRO’’) human environment. ADAMS Public Electronic Reading registered as either a national securities Room on the Internet at the NRC Web exchange or national securities Environmental Impacts of the site, http://www.nrc.gov/reading-rm/ Alternatives to the Proposed Action association to examine for, and enforce adams.html. Persons who do not have compliance by, its members and persons As an alternative to the proposed access to ADAMS or who encounter associated with its members with the action, the staff considered denial of the problems in accessing the documents Act, the rules and regulations proposed action (i.e., the ‘‘no-action’’ located in ADAMS should contact the thereunder, and the SRO’s own rules, alternative). Denial of the application NRC PDR Reference staff by telephone unless the SRO is relieved of this would result in no change in current at 1–800–397–4209 or 301–415–4737, or responsibility pursuant to Section environmental impacts. The send an e-mail to [email protected]. 17(d) 4 or Section 19(g)(2) 5 of the Act. environmental impacts of the proposed Dated at Rockville, Maryland, this 8th day Without this relief, the statutory action and the alternative action are of October 2008. obligation of each individual SRO could similar. For the Nuclear Regulatory Commission. result in a pattern of multiple Alternative Use of Resources Cameron S. Goodwin, examinations of broker-dealers that Project Manager, Plant Licensing Branch III– The action does not involve the use of 1 15 U.S.C. 78q(d). 2, Division of Operating Reactor Licensing, any different resources than those 2 17 CFR 240.17d–2. Office of Nuclear Reactor Regulation. previously considered in the Final 3 15 U.S.C. 78s(g)(1). Environmental Statement for the [FR Doc. E8–24899 Filed 10–17–08; 8:45 am] 4 15 U.S.C. 78q(d). DBNPS, dated October 31, 1975. BILLING CODE 7590–01–P 5 15 U.S.C. 78s(g)(2).

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maintain memberships in more than one investors, to foster cooperation and the SRO Participants intend that FINRA SRO (‘‘common members’’). Such coordination among the SROs, to will conduct examinations for the delta regulatory duplication would add remove impediments to, and foster the hedging exemption for all common unnecessary expenses for common development of, a national market members that are members of FINRA members and their SROs. system and a national clearance and notwithstanding the fact that FINRA’s Section 17(d)(1) of the Act 6 was settlement system, and is in conformity position limit rule is, in some cases, intended, in part, to eliminate with the factors set forth in Section limited to only firms that are not unnecessary multiple examinations and 17(d) of the Act. Commission approval members of an options exchange (i.e., regulatory duplication.7 With respect to of a plan filed pursuant to Rule 17d–2 access members). In such cases, a common member, Section 17(d)(1) relieves an SRO of those regulatory FINRA’s examinations for the delta authorizes the Commission, by rule or responsibilities allocated by the plan to hedging exemption will be for the order, to relieve an SRO of the another SRO. position limit rule(s) of the other SRO responsibility to receive regulatory II. The Plan Participant(s). Examinations for the reports, to examine for and enforce delta hedging exemption for common compliance with applicable statutes, On December 11, 2007, the members that are non-FINRA members rules, and regulations, or to perform Commission declared effective the SRO will be conducted by the same SRO other specified regulatory functions. Participants’ Plan for allocating Participant conducting position limit To implement Section 17(d)(1), the regulatory responsibilities pursuant to surveillance as provided in Exhibit B to 11 Commission adopted two rules: Rule Rule 17d–2. On April 11, 2008, the the Plan. In addition, Exhibit A to the 8 17d–1 and Rule 17d–2 under the Act. Commission approved an amendment to Plan has been updated to reflect the Rule 17d–1 authorizes the Commission the Plan to include NASDAQ as a addition of options position limit rules 12 to name a single SRO as the designated participant. The Plan is designed to as common rules. Accordingly, examining authority (‘‘DEA’’) to reduce regulatory duplication for regulatory responsibility for a common examine common members for common members by allocating member’s compliance with the options compliance with the financial regulatory responsibility for certain position limit rules included in Exhibit responsibility requirements imposed by options-related market surveillance A to the Plan will be allocated to the the Act, or by Commission or SRO matters among the SRO Participants.13 9 applicable DOSR as provided by the rules. When an SRO has been named as Generally, under the current Plan, an amended Plan. The amended agreement a common member’s DEA, all other SRO Participant will serve as the replaces the previous agreement in its Designated Options Surveillance SROs to which the common member entirety. The text of the proposed Regulator (‘‘DOSR’’) for each common belongs are relieved of the responsibility amended 17d–2 Plan is as follows member assigned to it and will assume to examine the firm for compliance with (additions are italicized; deletions are the applicable financial responsibility regulatory responsibility with respect to [bracketed]): rules. On its face, Rule 17d–1 deals only that common member’s compliance with an SRO’s obligations to enforce with applicable common rules for * * * * * member compliance with financial certain accounts. When an SRO has Agreement by and Among the responsibility requirements. Rule 17d–1 been named as a common member’s American Stock Exchange LLC, the does not relieve an SRO from its DOSR, all other SROs to which the Boston Stock Exchange, Inc., the obligation to examine a common common member belongs will be Chicago Board Options Exchange, member for compliance with its own relieved of regulatory responsibility for Incorporated, the International rules and provisions of the federal that common member, pursuant to the Securities Exchange LLC, Financial securities laws governing matters other terms of the Plan, with respect to the Industry Regulatory Authority, Inc., than financial responsibility, including applicable common rules specified in Nyse Arca, Inc., The Nasdaq Stock sales practices and trading activities and Exhibit A to the Plan. Market LLC, and [the Philadelphia practices. III. Proposed Amendment to the Plan Stock Exchange] NASDAQ OMX To address regulatory duplication in PHLX, Inc., Pursuant to Rule 17d–2 these and other areas, the Commission On October 1, 2008, the SRO Under the Securities Exchange Act of 10 adopted Rule 17d–2 under the Act. Participants submitted a proposed 1934 Rule 17d–2 permits SROs to propose amendment to the Plan. The purpose of joint plans for the allocation of the amendment is to clarify that the This agreement (this ‘‘Agreement’’), regulatory responsibilities with respect term Regulatory Responsibility for by and among the American Stock to their common members. Under options position limits includes Exchange LLC (‘‘Amex’’), the Boston paragraph (c) of Rule 17d–2, the examination responsibilities for the Stock Exchange, Inc. (‘‘BSE’’), the Commission may declare such a plan delta hedging exemption. Specifically, Chicago Board Options Exchange, effective if, after providing for notice Incorporated (‘‘CBOE’’), the and comment, it determines that the 11 See Securities Exchange Act Release No. 56941 International Securities Exchange LLC plan is necessary or appropriate in the (December 11, 2007), 72 FR 71723 (December 18, (‘‘ISE’’), Financial Industry Regulatory public interest and for the protection of 2007) (File No. 4–551). Authority, Inc. (‘‘FINRA’’), NYSE Arca, 12 See Securities Exchange Act Release No. 57649 (April 11, 2008), 73 FR 20976 (April 17, 2008) (File Inc. (‘‘Arca’’), The NASDAQ Stock 6 15 U.S.C. 78q(d)(1). No. 4–551). Market LLC (‘‘Nasdaq’’), and the 7 See Securities Act Amendments of 1975, Report 13 The Plan is wholly separate from the [Philadelphia Stock Exchange] of the Senate Committee on Banking, Housing, and multiparty options agreement made pursuant to NASDAQ OMX PHLX, Inc. (‘‘PHLX’’), is Urban Affairs to Accompany S. 249, S. Rep. No. 94– Rule 17d–2 by and among Amex, BSE, CBOE, ISE, 75, 94th Cong., 1st Session 32 (1975). FINRA, New York Stock Exchange LLC, NASDAQ, made this 10th day of October, 2007, 8 17 CFR 240.17d–1 and 17 CFR 240.17d–2, NYSE Arca, and Phlx involving the allocation of and as amended [this] the 31st day of respectively. regulatory responsibilities with respect to common March, 2008, and this 1st day of 9 See Securities Exchange Act Release No. 12352 members for options-related sales practice matters October, 2008, pursuant to Section 17(d) (April 20, 1976), 41 FR 18808 (May 7, 1976). relating to the conduct of broker-dealers of accounts of the Securities Exchange Act of 1934, 10 See Securities Exchange Act Release No. 12935 for listed options or index warrants. See Securities (October 28, 1976), 41 FR 49091 (November 8, Exchange Act Release Nos. 57987 (June 18, 2008), as amended (the ‘‘Exchange Act’’), and 1976). 73 FR 36156 (June 25, 2008) (File No. S7–966). Rule 17d–2 thereunder (‘‘Rule 17d–2’’),

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which allows for a joint plan among written agreement by the Participants. Exhibit B. The allocation of Common self-regulatory organizations (‘‘SROs’’) The DOSR assigned to each Common Members to DOSRs for examinations of to allocate regulatory obligations with Member shall assume Regulatory the delta hedging exemption under the respect to brokers or dealers that are Responsibility with regard to that options position limits rules is provided members of two or more of the parties Common Member’s compliance with the in Exhibit C. to this Agreement (‘‘Common applicable Common Rules for certain III. Each year within 30 days of the Members’’). The Amex, BSE, CBOE, ISE, accounts.12 A DOSR may perform its anniversary date of the commencement FINRA, Arca, Nasdaq, and PHLX are Regulatory Responsibility or enter an of operation of this Agreement, or more collectively referred to herein as the agreement to transfer or assign such frequently if required by changes in the ‘‘Participants’’ and individually, each a responsibilities to a national securities rules of a Participant, each Participant ‘‘Participant.’’ This Agreement shall be exchange registered with the SEC under shall submit to the other Participants, administered by a committee known as Section 6(a) of the Exchange Act or a through the Chair of the OSG, an the Options Surveillance Group (the national securities association registered updated list of Common Rules for ‘‘OSG’’ or ‘‘Group’’), as described in with the SEC under Section 15A of the review. This updated list may add Section V hereof. Unless defined in this Exchange Act. A DOSR may not transfer Common Rules to Exhibit A, shall delete Agreement or the context otherwise or assign its Regulatory Responsibility from Exhibit A rules of that Participant requires, the terms used herein shall to an association registered for the that are no longer identical or have the meanings assigned thereto by limited purpose of regulating the substantially similar to the Common the Exchange Act and the rules and activities of members who are registered Rules, and shall confirm that the regulations thereunder. as brokers or dealers in security futures remaining rules of the Participant Whereas, the Participants desire to products. included on Exhibit A continue to be eliminate regulatory duplication with The term ‘‘Regulatory Responsibility’’ identically or substantially similar to respect to SRO market surveillance of does not include, and each Participant the Common Rules. Within 30 days Common Member 11 activities with shall retain full responsibility with from the date that each Participant has regard to certain common rules relating respect to: received revisions to Exhibit A from the to listed options (‘‘Options’’); and (a) surveillance, investigative and Chair of the OSG, each Participant shall Whereas, for this purpose, the enforcement responsibilities other than confirm in writing to the Chair of the Participants desire to execute and file those included in the definition of OSG whether that Participant’s rules this Agreement with the Securities and Regulatory Responsibility; listed in Exhibit A are Common Rules. Exchange Commission (the ‘‘SEC’’ or (b) any aspects of the rules of a IV. Apparent violation of another ‘‘Commission’’) pursuant to Rule 17d–2. Participant that are not substantially Participant’s rules discovered by a Now, Therefore, in consideration of similar to the Common Rules or that are DOSR, but which rules are not within the mutual covenants contained in this allocated for a separate surveillance the scope of the discovering DOSR’s Agreement, the Participants agree as purpose under any other agreement Regulatory Responsibility, shall be follows: made pursuant to Rule 17d–2. Any such referred to the relevant Participant for I. Except as otherwise provided in this aspects of a Common Rule will be noted such action as is deemed appropriate by Agreement, each Participant shall as excluded on Exhibit A. that Participant. assume Regulatory Responsibility (as With respect to options position Notwithstanding the foregoing, defined below) for the Common limits, the term Regulatory nothing contained herein shall preclude Members that are allocated or assigned Responsibility shall include a DOSR in its discretion from requesting to such Participant in accordance with examination responsibilities for the that another Participant conduct an the terms of this Agreement and shall be delta hedging exemption. Specifically, investigative or enforcement proceeding relieved of its Regulatory Responsibility the Participants intend that FINRA will (‘‘Proceeding’’) on a matter for which as to the remaining Common Members. conduct examinations for delta hedging the requesting DOSR has Regulatory For purposes of this Agreement, a for all Common Members that are Responsibility. If such other Participant Participant shall be considered to be the members of FINRA notwithstanding the agrees, the Regulatory Responsibility in fact that FINRA’s position limit rule is, Designated Options Surveillance such case shall be deemed transferred to in some cases, limited to only firms that Regulator (‘‘DOSR’’) for each Common the accepting Participant and confirmed are not members of an options exchange Member that is allocated to it in in writing by the Participants involved. (i.e., access members). In such cases, accordance with Section VII. Additionally, nothing in this Agreement II. As used in this Agreement, the FINRA’s examinations for delta hedging shall prevent another Participant on term ‘‘Regulatory Responsibility’’ shall options position limit violations will be whose market potential violative mean surveillance, investigation and for the identical or substantively similar activity took place from conducting its enforcement responsibilities relating to position limit rule(s) of the other own Proceeding on a matter. The compliance by the Common Members Participant(s). Examinations for delta Participant conducting the Proceeding with such Options rules of the hedging for Common Members that are shall advise the assigned DOSR. Each Participants as the Participants shall non-FINRA members will be conducted Participant agrees, upon request, to determine are substantially similar and by the same Participant conducting make available promptly all relevant shall approve from time to time, insofar position limit surveillance. The files, records and/or witnesses necessary as such rules relate to market allocation of Common Members to to assist another Participant in a surveillance (collectively, the ‘‘Common DOSRs for surveillance of compliance Proceeding. Rules’’). For the purposes of this with options position limits and other V. The OSG shall be composed of one Agreement the list of Common Rules is agreed to Common Rules is provided in representative designated by each of the attached as Exhibit A hereto, which may Participants (a ‘‘Representative’’). Each 12 only be amended upon unanimous Certain accounts shall include customer (‘‘C’’ Participant shall also designate one or as classified by the Options Clearing Corporation more persons as its alternate (‘‘OCC’’)) and firm (‘‘F’’ as classified by OCC) 11 In the case of the BSE, members are those accounts, as well as other accounts, such as market representative(s) (an ‘‘Alternate persons who are Options Participants (as defined in maker accounts as the Participants shall, from time Representative’’). In the absence of the the Boston Options Exchange LLC Rules). to time, identify as appropriate to review. Representative, the Alternate

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Representative shall assume the powers, as possible the allocation among such the Participants that, at the time of such duties and responsibilities of the Participants, provided that no Common determination, share the applicable Representative. Each Participant may at Members shall be allocated to FINRA. Common Member being allocated; a any time replace its Representative and/ For example, if sixteen Common Participant shall not be entitled to vote or its Alternate Representative to the Members that conduct an Options on any Allocation relating to a Common Group.13 A majority of the OSG shall business are members only of three Member unless the Common Member is constitute a quorum and, unless Participants, none of which is FINRA, a member of such Participant. otherwise required, the affirmative vote those Common Members shall be VIII. Each DOSR shall conduct routine of a majority of the Representatives allocated among the three Participants surveillance reviews to detect violations present (in person, by telephone or by such that no Participant is allocated of the applicable Common Rules by written consent) shall be necessary to more than six such members and no each Common Member allocated to it constitute action by the Group. The Participant is allocated less than five with a frequency (daily, weekly, Group will have a Chair, Vice Chair and such members. If, in the previous monthly, quarterly, semi-annually or Secretary. A different Participant will example, one of the three Participants is annually as noted on Exhibit A) not less assume each position on a rotating basis FINRA, the sixteen Common Members than that determined by the Group. The for a one-year term. In the event that a would be allocated evenly between the other Participants agree that, upon Participant replaces a Representative remaining Participants, so that the two request, relevant information in their who is acting as Chair, Vice Chair or non-FINRA Participants would be respective files relative to a Common Secretary, the newly appointed allocated eight Common Members each. Member will be made available to the Representative shall assume the (c) To the extent practicable, applicable DOSR. In addition, each position of Chair, Vice Chair, or Allocation shall take into account the Participant shall provide, to the extent Secretary (as applicable) vacated by the amount of Options activity conducted not otherwise already provided, Participant’s former Representative. In by each Common Member in order to information pertaining to its the event a Participant cannot fulfill its most evenly divide the Common surveillance program that would be duties as Chair, the Participant serving Members with the largest amount of relevant to FINRA or the Participant(s) as Vice Chair shall substitute for the activity among the Participants of which conducting routine examinations for the Chair and complete the subject they are members. Allocation will also delta hedging exemption. unfulfilled term. All notices and other take into account similar allocations At each meeting of the OSG, each communications for the OSG are to be pursuant to other plans or agreements to Participant shall be prepared to report sent in care of the Chair and, as which the Common Members are party on the status of its surveillance program appropriate, to each Representative. to maintain consistency in oversight of for the previous quarter and any period VI. The OSG shall determine the the Common Members.14 prior thereto that has not previously times and locations of Group meetings, (d) To the extent practicable, been reported to the Group. In the event provided that the Chair, acting alone, Allocation of Common Members to a DOSR believes it will not be able to may also call a meeting of the Group in Participants will be rotated among the complete its Regulatory Responsibility the event the Chair determines that applicable Participants such that a for its allocated Common Members, it there is good cause to do so. To the Common Member shall not be allocated will so advise the Group in writing extent reasonably possible, notice of any to a Participant to which that Common promptly. The Group will undertake to meeting shall be given at least ten Member was allocated within the remedy this situation by reallocating the business days prior to the meeting date. previous two years. The assignment of subject Common Members among the Representatives shall always be given DOSRs pursuant to the Allocation is remaining Participants. In such the option of participating in any attached as Exhibit B hereto, and will be instance, the Group may determine to meeting telephonically at their own updated from time to time to reflect impose a regulatory fee for services expense rather than in person. Common Member Allocation changes. provided to the DOSR that was unable VII. No less frequently than every two (e) The Group may reallocate to fulfill its Regulatory Responsibility. years, in such manner as the Group Common Members from time-to-time, as IX. Each Participant will, upon deems appropriate, the OSG shall it deems appropriate. request, promptly furnish a copy of the allocate Common Members that conduct (f) Whenever a Common Member report or applicable portions thereof an Options business among the ceases to be a member of its DOSR, the relating to any investigation made Participants (‘‘Allocation’’), and the DOSR shall promptly inform the Group, pursuant to the provisions of this Participant to which a Common Member which shall review the matter and Agreement to each other Participant of is allocated will serve as the DOSR for allocate the Common Member to which the Common Member under that Common Member. Any Allocation another Participant. investigation is a member. (g) A DOSR may request that a shall be based on the following X. Each Participant will routinely Common Member to which it is principles, except to the extent all populate a common database, to be assigned be reallocated to another affected Participants consent to one or accessed by the Group relating to any Participant by giving 30 days written more different principles: formal regulatory action taken during (a) The OSG may not allocate a notice to the Chair of the OSG. The the course of a Proceeding with respect Common Member to a Participant Group, in its discretion, may approve to the Common Rules concerning a unless the Common Member is a such request and reallocate the Common Common Member. member of that Participant. Member to another Participant. XI. Any written notice required or (b) To the extent practicable, Common (h) All determinations by the Group permitted to be given under this Members that conduct an Options with respect to Allocation shall be made Agreement shall be deemed given if sent business shall be allocated among the by the affirmative vote of a majority of by certified mail, return receipt Participants of which they are members requested, to any Participant to the 14 For example, if one Participant was allocated attention of that Participant’s in such manner as to equalize as nearly a Common Member by another regulatory group that Participant would be assigned to be the DOSR Representative, to the Participant’s 13 A Participant must give notice to the Chair of of that Common Member, unless there is good cause principal place of business or by e-mail the Group of such a change. not to make that assignment. at such address as the Representative

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shall have filed in writing with the Participants that they intend to Limitation of Liability Chair. terminate the Agreement and the No Participant nor the Group nor any XII. The costs incurred by each expiration of the applicable notice of their respective directors, governors, Participant in discharging its Regulatory period. Such notice shall be given at officers, employees or representatives Responsibility under this Agreement are least six months prior to the intended shall be liable to any other Participant not reimbursable. However, any of the date of termination, or such other period in this Agreement for any liability, loss Participants may agree that one or more as all the Participants may agree. Such or damage resulting from or claimed to will compensate the other(s) for costs termination will become effective upon have resulted from any delays, incurred. Commission approval. XIII. The Participants shall notify the inaccuracies, errors or omissions with XVII. Participation in the Group shall Common Members of this Agreement by respect to the provision of Regulatory be strictly limited to the Participants means of a uniform joint notice Responsibility as provided hereby or for and no other party shall have any right approved by the Group. Each the failure to provide any such to attend or otherwise participate in the Participant will notify the Common Regulatory Responsibility, except with Group except with the unanimous Members that have been allocated to it respect to such liability, loss or damages approval of all Participants. that such Participant will serve as DOSR as shall have been suffered by one or Notwithstanding the foregoing, any for that Common Member. more of the Participants and caused by national securities exchange registered XIV. This Agreement shall be effective the willful misconduct of one or more with the SEC under Section 6(a) of the upon approval of the Commission. This of the other Participants or its respective Act or any national securities Agreement may only be amended in directors, governors, officers, employees association registered with the SEC writing duly approved by each or representatives. No warranties, under section 15A of the Act may Participant. All amendments to this express or implied, are made by the become a Participant to this Agreement Agreement, excluding changes to Participants, individually or as a group, provided that: (i) Such applicant has Exhibits A, B and [B]C, must be filed or by the OSG with respect to any adopted rules substantially similar to with and approved by the Commission. Regulatory Responsibility to be XV. Any Participant may manifest its the Common Rules, and received performed hereunder. approval thereof from the SEC; (ii) such intention to cancel its participation in Relief From Responsibility this Agreement at any time upon applicant has provided each Participant providing written notice to (i) the Group with a signed statement whereby the Pursuant to Section 17(d)(1)(A) of the six months prior to the date of such applicant agrees to be bound by the Exchange Act and Rule 17d-2, the cancellation, or such other period as all terms of this Agreement to the same Participants join in requesting the the Participants may agree, and (ii) the effect as though it had originally signed Commission, upon its approval of this Commission. Upon receipt of the notice this Agreement and (iii) an amended Agreement or any part thereof, to relieve the Group shall allocate, in accordance agreement reflecting the addition of the Participants that are party to this with the provisions of this Agreement, such applicant as a Participant has been Agreement and are not the DOSR as to those Common Members for which the filed with and approved by the a Common Member of any and all canceling Participant was the DOSR. Commission. Regulatory Responsibility with respect The canceling Participant shall retain its XVIII. This Agreement is wholly to the matters allocated to the DOSR. Regulatory Responsibility and other separate from the multiparty Agreement This Agreement may be executed in rights, privileges and duties pursuant to made pursuant to Rule 17d-2 by and any number of counterparts, each of this Agreement until the Group has among the Amex, BSE, CBOE, ISE, which shall be deemed to be an original, completed the reallocation as described NASD, the New York Stock Exchange, but all such counterparts shall together above, and the Commission has LLC, Arca and PHLX involving the constitute one and the same Agreement. approved the cancellation. allocation of regulatory responsibilities In Witness Whereof, the Participants XVI. The cancellation of its with respect to common members for hereto have executed this Agreement as participation in this Agreement by any compliance with common rules relating of the date and year first above written. Participant shall not terminate this to the conduct by broker-dealers of * * * * * Agreement as to the remaining accounts for listed options or index Participants. This Agreement will only warrants entered into on December 1, OPTIONS SURVEILLANCE GROUP terminate following notice to the 2006, and as may be amended from time 17d–2 Commission, in writing, by the then to time. Exhibit A

COMMON RULES

SRO Description of rule Exchange rule number Frequency of review

Violation I: Expiring Exercise Declarations (EED)—For Listed Equity Options Expiring: the Third Saturday Following the Third Friday of a Month, Quarterly, AND for Listed FLEX Options

Amex ...... Exercise of Options Contracts ...... [Amex] Rule 980 ...... At Expiration. BOX ...... Exercise of Options Contracts ...... [BOX] Rule 7.1 ...... At Expiration. CBOE ...... Exercise of Options Contracts ...... [CBOE] Rule 11.1 ...... At Expiration. FINRA ...... Exercise of Options Contracts ...... NASD Rule 2860 ...... At Expiration. ISE ...... Exercise of Options Contracts ...... [ISE] Rule 1100 ...... At Expiration. Nasdaq ...... Exercise of Options Contracts ...... Nasdaq Chapter VIII, Sec.1 ...... At Expiration. NYSEArca ...... Exercise of Options Contracts ...... [NYSEArca] Rule 6.24 ...... At Expiration. PHLX ...... Exercise of Equity Options Contracts ...... [PHLX] Rule 1042 ...... At Expiration.

Violation II: Position Limits. (PL)—For Listed Equity Options Expiring: The Third Saturday Following The Third Friday of a Month, Quarterly

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COMMON RULES—Continued

SRO Description of rule Exchange rule number Frequency of review

Amex ...... Position Limits...... Rule 904 ...... Daily. Liquidating Positions...... Rule 907 ...... As Needed. BOX ...... Position Limits...... Chapter III, Section 7 ...... Daily. Exemptions from Position ...... Chapter III, Section 8 ...... As Needed. Liquidation Positions...... Chapter III, Section 11 ...... As Needed. CBOE ...... Position Limits...... Rule 4.11 ...... Daily. Liquidation of Positions...... Rule 4.14 ...... As Needed. FINRA ...... Position Limits...... NASD Rule 2860(b)(3) ...... Daily. Liquidation of Positions. and Restrictions on Access ...... NASD Rule 2860(b)(6) ...... As Needed. ISE ...... Position Limits...... Rule 412 ...... Daily. Exemptions from Position Limits...... Rule 413 ...... As Needed. Liquidating Positions...... Rule 416 ...... As Needed. Nasdaq ...... Position Limits...... Nasdaq Rule Chapter III Sec- Daily. tion 7. Exemptions from Position Limits...... Nasdaq Rule Chapter III Sec- As Needed. tion 8. Liquidating Positions...... Nasdaq Rule Chapter III Sec- As Needed. tion 11. NYSEArca ...... Position Limits...... Rule 6.8 ...... Daily. Liquidation of Position ...... Rule 6.7 ...... As Needed. PHLX ...... Position Limits...... Rule 1001 ...... Daily. Liquidation of Positions...... Rule 1004 ...... As Needed.

* * * * * Room, on official business days between take place after the proposed the hours of 10 a.m. and 3 p.m. Copies IV. Solicitation of Comments amendment is effective. The of the plan also will be available for Commission notes that the SRO Interested persons are invited to inspection and copying at the principal Participants have separately determined submit written data, views, and offices of Amex, BSE, CBOE, ISE, to add options position limit rules to the arguments concerning the foregoing. FINRA, NASDAQ, NYSE Arca, and list of common rules included in Exhibit Comments may be submitted by any of Phlx. All comments received will be A to the Plan.14 To cover the full scope the following methods: posted without change; the Commission of regulatory responsibilities associated Electronic Comments does not edit personal identifying with these new position limit common information from submissions. You • Use the Commission’s Internet rules, the SRO Participants have should submit only information that proposed to add language to the Plan to comment form (http://www.sec.gov/ you wish to make available publicly. All rules/other.shtml); or clarify the allocation of examination submissions should refer to File • Send an e-mail to rule- responsibilities with respect to the delta Number 4–551 and should be submitted [email protected]. Please include File hedging exemption from options on or before November 10, 2008. Number 4–551 on the subject line. position limits. The amended Plan Paper Comments V. Discussion allocates to FINRA the examination • The Commission continues to believe responsibilities with respect to the delta Send paper comments in triplicate hedging exemption for all common to Secretary, Securities and Exchange that the Plan, as proposed to be members that are members of FINRA, Commission, Station Place, 100 F Street, amended, is an achievement in NE., Washington, DC 20549–1090. cooperation among the SRO and allocates to the applicable DOSR the examination responsibilities with All submissions should refer to File Participants, and will reduce respect to the delta hedging exemption Number 4–551. This file number should unnecessary regulatory duplication by be included on the subject line if e-mail allocating to the designated SRO the for common members that are not is used. To help the Commission responsibility for certain options-related members of FINRA. In addition, to process and review your comments market surveillance matters that would facilitate the ability of FINRA or a DOSR more efficiently, please use only one otherwise be performed by multiple to perform examination responsibilities method. The Commission will post all SROs. The Plan promotes efficiency by with regard to the position limit rules, comments on the Commission’s Internet reducing costs to firms that are members the amended Plan states that each SRO Web site (http://www.sec.gov/rules/ of more than one of the SRO Participant shall provide information other.shtml). Copies of the submission, Participants. In addition, because the pertaining to its surveillance program all subsequent amendments, all written SRO Participants coordinate their that would be relevant to FINRA or the statements with respect to the proposed regulatory functions in accordance with applicable DOSR conducting routine plan that are filed with the Commission, the Plan, the Plan promotes, and will examinations for the delta hedging and all written communications relating continue to promote, investor exemption. By declaring it effective to the proposed plan between the protection. today, the amended Plan can become Commission and any person, other than Under paragraph (c) of Rule 17d–2, effective and be implemented without those that may be withheld from the the Commission may, after appropriate undue delay. public in accordance with the notice and comment, declare a plan, or provisions of 5 U.S.C. 552, will be any part of a plan, effective. In this available for inspection and copying in instance, the Commission believes that 14 See Section XIV of the Plan (regarding the Commission’s Public Reference appropriate notice and comment can amendments to the Plan).

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VI. Conclusion proposed rule change pursuant to chapter will be deleted in its entirety, Section 19(b)(3)(A)(iii) of the Act 3 and along with all references to Chapter This order gives effect to the amended 4 Plan submitted to the Commission that Rule 19b–4(f)(6) thereunder. The XXX rules throughout the CBOE 7 is contained in File No. 4–551. Commission is publishing this notice to Rulebook. solicit comments on the proposed rule It is therefore ordered, pursuant to 2. Statutory Basis Section 17(d) of the Act,15 that the Plan, change from interested persons. The Exchange believes that the as amended, made by and between I. Self-Regulatory Organization’s proposed rule change is consistent with Amex, BSE, CBOE, ISE, FINRA, Statement of the Terms of Substance of the requirements provided under NASDAQ, NYSE Arca, and Phlx filed the Proposed Rule Change Section 6(b)(5) 8 of the Act, that the with the Commission pursuant to Rule CBOE proposes to delete Chapter XXX rules of an exchange be designed to 17d–2 on October 1, 2008 is hereby (Trading in Stocks, Warrants and Other promote just and equitable principles of approved and declared effective. Securities) from the CBOE Rulebook. In trade, to prevent fraudulent and It is further ordered that those SRO addition, CBOE proposes to delete manipulative acts and, in general, to Participants that are not the DOSR as to references to Chapter XXX rules protect investors and the public interest. a particular common member are throughout the CBOE Rulebook. The relieved of those regulatory text of the rule proposal is available on B. Self-Regulatory Organization’s responsibilities allocated to the common the Exchange’s Web site (http:// Statement on Burden on Competition member’s DOSR under the amended www.cboe.org/legal), at the Exchange’s CBOE does not believe that the Plan to the extent of such allocation. Office of the Secretary and at the proposed rule change will impose any It is further ordered that the SRO Commission. burden on competition not necessary or Participants are relieved of the II. Self-Regulatory Organization’s appropriate in furtherance of the examination responsibilities with purposes of the Act. respect to the delta hedging exemption Statement of the Purpose of, and from options position limits for all Statutory Basis for, the Proposed Rule C. Self-Regulatory Organization’s common members allocated to FINRA Change Statement on Comments on the under the amended Plan to the extent of In its filing with the Commission, the Proposed Rule Change Received From such allocation. self-regulatory organization included Members, Participants or Others For the Commission, by the Division of statements concerning the purpose of No written comments were solicited Trading and Markets, pursuant to delegated and basis for the proposed rule change or received with respect to the proposed authority.16 and discussed any comments it received rule change. Florence E. Harmon, on the proposed rule change. The text III. Date of Effectiveness of the Acting Secretary. of those statements may be examined at the places specified in Item IV below. Proposed Rule Change and Timing for [FR Doc. E8–24740 Filed 10–17–08; 8:45 am] The Exchange has prepared summaries, Commission Action BILLING CODE 8011–01–P set forth in sections A, B, and C below, Because the foregoing proposed rule of the most significant parts of such change does not: (1) Significantly affect SECURITIES AND EXCHANGE statements. the protection of investors or the public COMMISSION A. Self-Regulatory Organization’s interest; (2) impose any significant burden on competition; and (3) become [Release No. 34–58771; File No. SR–CBOE– Statement of the Purpose of, and 2008–101] Statutory Basis for, the Proposed Rule operative for 30 days from the date on Change which it was filed, or such shorter time as the Commission may designate if Self-Regulatory Organizations; 1. Purpose Chicago Board Options Exchange, consistent with the protection of Incorporated; Notice of Filing and The purpose of this proposed rule investors and the public interest, it has Immediate Effectiveness of Proposed change is to delete Chapter XXX become effective pursuant to Section Rule Change to Delete Chapter XXX (Trading in Stocks, Warrants and Other 19(b)(3)(A) of the Act 9 and Rule 19b- and References to Chapter XXX Securities) from the CBOE Rulebook.5 In 4(f)(6) thereunder.10 At any time within Throughout the CBOE Rulebook addition, CBOE proposes to delete references to Chapter XXX rules 7 The Exchange is also proposing to amend the October 10, 2008. throughout the CBOE Rulebook. Chapter Introduction paragraph to Chapter L, which references Chapter XXX. In addition, the Exchange Pursuant to Section 19(b)(1) of the XXX governed the trading of non-option is replacing references to Chapter 55 with Chapter Securities Exchange Act of 1934 (the securities traded on CBOE’s stand-alone 54 in the Introduction paragraph for Chapter L and ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 stock platform in an open-outcry in the Appendix A to Chapters 50 to 54, since notice is hereby given that on October environment. All non-option securities Chapter 55 was previously deleted. See Securities Exchange Act Release No. 55034 (December 29, 6, 2008, the Chicago Board Options that previously traded under Chapter 2006), 72 FR 1350 (January 11, 2007) (notice for SR– Exchange, Incorporated (‘‘Exchange’’ or XXX now trade pursuant to Chapters L CBOE–2006–112) (filing, among other things, ‘‘CBOE’’) filed with the Securities and through LIV.6 Consequently, it is no deleted all rules (Chapter LV) regarding the Exchange Commission (the longer necessary to include Chapter Intermarket Trading Systems); see also Securities Exchange Act Release No. 55392 (March 2, 2007), ‘‘Commission’’) the proposed rule XXX in the CBOE Rulebook, and the 73 FR 10572 (March 8, 2007) (approval order for change as described in Items I and II SR–CBOE–2006–112). below, which Items have been prepared 3 15 U.S.C. 78s(b)(3)(A)(iii). 8 15 U.S.C. 78s(b)(5). by the Exchange. The Exchange filed the 4 17 CFR 240.19b-4(f)(6). 9 15 U.S.C. 78s(b)(3)(A). proposal as a ‘‘non-controversial’’ 5 Chapter XXX was adopted in 1990. See 10 17 CFR 240.19b–4(f)(6). In addition, when Securities Exchange Act Release No. 28556 (October filing a proposed rule change pursuant to Rule 19b– 19, 1990), 55 FR 43233 (October 26, 1990) (SR– 4(f)(6) under the Act, an Exchange is required to 15 15 U.S.C. 78q(d). CBOE–90–08). give the Commission written notice of its intent to 16 17 CFR 200.30–3(a)(34). 6 Chapters L through LIV govern the trading of file the proposed rule change, along with a brief 1 15 U.S.C. 78s(b)(1). non-option securities on the CBOE Stock Exchange description and text of the proposed rule change, 2 17 CFR 240.19b–4. (CBSX), a screen-based facility of CBOE. at least five business days prior to the date of filing

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60 days of the filing of such proposed should submit only information that II. Self-Regulatory Organization’s rule change, the Commission may you wish to make available publicly. All Statement of the Purpose of, and summarily abrogate such rule change if submissions should refer to File Statutory Basis for, the Proposed Rule it appears to the Commission that such Number SR–CBOE–2008–101 and Change action is necessary or appropriate in the should be submitted on or before In its filing with the Commission, the public interest, for the protection of November 10, 2008. Exchange included statements investors, or otherwise in furtherance of For the Commission, by the Division of concerning the purpose of and basis for the purposes of the Act. Trading and Markets, pursuant to delegated the proposed rule change and discussed 11 IV. Solicitation of Comments authority. any comments it received on the Florence E. Harmon, proposed rule change. The text of these Interested persons are invited to Acting Secretary. statements may be examined at the submit written data, views, and places specified in Item IV below. The arguments concerning the foregoing, [FR Doc. E8–24738 Filed 10–17–08; 8:45 am] Exchange has prepared summaries, set including whether the proposed rule BILLING CODE 8011–01–P forth in sections (A), (B), and (C) below, change is consistent with the Act. of the most significant parts of such Comments may be submitted by any of SECURITIES AND EXCHANGE statements. the following methods: COMMISSION A. Self-Regulatory Organization’s Electronic Comments [Release No. 34–58763; File No. SR–CBOE– Statement of the Purpose of, and • Use the Commission’s Internet 2008–106] Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ Change rules/sro.shtml); or Self-Regulatory Organizations; • Send an e-mail to rule- Chicago Board Options Exchange, 1. Purpose [email protected]. Please include File Incorporated; Notice of Filing and CBOE Rule 8.3A, Maximum Number Number SR-CBOE–2008–101 on the Immediate Effectiveness of Proposed of Market Participants Quoting subject line. Rule Change To Increase the Class Electronically per Product, establishes Quoting Limit in One Option Class class quoting limits (‘‘CQLs’’) for each Paper Comments class traded on the Hybrid Trading • Send paper comments in triplicate October 9, 2008. System.3 A CQL is the maximum to Secretary, Securities and Exchange Pursuant to Section 19(b)(1) of the number of quoters that may quote Commission, 100 F Street, NE., Securities Exchange Act of 1934 (the electronically in a given product and Washington, DC 20549–1090. ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Rule 8.3A, Interpretation .01(a) provides All submissions should refer to File notice is hereby given that on October that the current levels are generally Number SR–CBOE–2008–101. This file 8, 2008, the Chicago Board Options established at 50. number should be included on the Exchange, Incorporated (‘‘CBOE’’ or In addition, Rule 8.3A, Interpretation subject line if e-mail is used. To help the ‘‘Exchange’’) filed with the Securities .01(b) provides a procedure by which Commission process and review your and Exchange Commission the President of the Exchange may comments more efficiently, please use (‘‘Commission’’) the proposed rule increase the CQL for an existing or new only one method. The Commission will change as described in Items I, II, and product. In this regard, the President of post all comments on the Commission’s III below, which Items have been the Exchange may increase the CQL in Internet Web site (http://www.sec.gov/ prepared by the CBOE. The Exchange a particular product when he deems it rules/sro.shtml). Copies of the has designated this proposal as one appropriate. The effect of an increase in submission, all subsequent constituting a stated policy, practice, or the CQL is procompetitive in that it amendments, all written statements interpretation with respect to the increases the number of market with respect to the proposed rule meaning, administration, or participants that may quote change that are filed with the enforcement of an existing rule under electronically in a product. The purpose Commission, and all written Section 19(b)(3)(A)(i) of the Act, and of this filing is to increase the CQL in communications relating to the Rule 19b–4(f)(1) thereunder, which the option class Wachovia Corp. (WB) proposed rule change between the renders the proposal effective upon from its current limit of 50 to 65. Commission and any person, other than filing with the Commission. The Given the unusual market conditions those that may be withheld from the Commission is publishing this notice to in the past several weeks, CBOE’s public in accordance with the solicit comments on the proposed rule President has determined that it would provisions of 5 U.S.C. 552, will be change from interested persons. be appropriate to increase the CQL in WB. Increasing the CQL to 65 will available for inspection and copying in I. Self-Regulatory Organization’s accommodate Market-Makers that are the Commission’s Public Reference Statement of the Terms of Substance of currently on the wait-list to be Room, 100 F Street, NE., Washington, the Proposed Rule Change DC 20549, on official business days appointed to the option class, and will between the hours of 10 a.m. and 3 p.m. The Exchange proposes to increase enable the Exchange to enhance the Copies of the filing also will be available the class quoting limit in one option liquidity offered, thereby offering for inspection and copying at the class. The text of the proposed rule deeper and more liquid markets. Lastly, principal office of the CBOE. All change is available on CBOE’s Web site CBOE represents that it has the systems comments received will be posted (http://www.cboe.org/legal), at the capacity to support this increase in the without change; the Commission does CBOE’s Office of the Secretary, and at CQL. the Commission’s public reference not edit personal identifying 2. Statutory Basis information from submissions. You room. CBOE believes the proposed rule of the proposed rule change, or such shorter time 11 17 CFR 200.30–3(a)(12). change is consistent with the Act and as designated by the Commission. The Exchange 1 15 U.S.C. 78s(b)(1). provided such notice to the Commission. 2 17 CFR 240.19b–4. 3 See Rule 8.3A.01.

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the rules and regulations under the Act Electronic Comments SECURITIES AND EXCHANGE applicable to a national securities • COMMISSION exchange and, in particular, the Use the Commission’s Internet requirements of section 6(b) of the Act.4 comment form (http://www.sec.gov/ [Release No. 34–58758; File No. SR–NYSE– 2008–100] Specifically, the Exchange believes the rules/sro.shtml); or proposed rule change is consistent with • Send an e-mail to rule- Self-Regulatory Organizations; New the Section 6(b)(5) 5 requirements that [email protected]. Please include File York Stock Exchange LLC; Notice of the rules of an exchange be designed to Number SR–CBOE–2008–106 on the Filing and Immediate Effectiveness of promote just and equitable principles of subject line. a Proposed Rule Change To Amend trade, to prevent fraudulent and NYSE Rule 123B.30 (Exchange manipulative acts and, in general, to Paper Comments Automated Order Routing System) To protect investors and the public interest. • Align the Rule Governing Sponsored As indicated above, the Exchange Send paper comments in triplicate to Secretary, Securities and Exchange Access to the Exchange With the believes that increasing the CQL in this Current Industry Standard option class will enable the Exchange to Commission, 100 F Street, NE., enhance the liquidity offered, thereby Washington, DC 20549–1090. October 8, 2008. offering deeper and more liquid All submissions should refer to File Pursuant to Section 19(b)(1) of the markets. Number SR–CBOE–2008–106. This file Securities Exchange Act of 1934 1 2 B. Self-Regulatory Organization’s number should be included on the (‘‘Act’’) and Rule 19b–4 thereunder, Statement on Burden on Competition subject line if e-mail is used. To help the notice is hereby given that on October 2, 2008, the New York Stock Exchange Commission process and review your CBOE does not believe that the LLC (‘‘NYSE’’ or ‘‘Exchange’’) filed with comments more efficiently, please use proposed rule change will impose any the Securities and Exchange burden on competition not necessary or only one method. The Commission will Commission (‘‘Commission’’) the appropriate in furtherance of the post all comments on the Commission’s proposed rule change as described in purposes of the Exchange Act. Internet Web site (http://www.sec.gov/ Items I and II below, which Items have rules/sro.shtml). Copies of the C. Self-Regulatory Organization’s been prepared by the Exchange. The submission, all subsequent Statement on Comments on the Exchange has designated the proposed Proposed Rule Change Received From amendments, all written statements rule change as a ‘‘non-controversial’’ Members, Participants, or Others with respect to the proposed rule rule change pursuant to Section change that are filed with the 19(b)(3)(A) of the Act 3 and Rule 19b– The Exchange neither received nor Commission, and all written 4(f)(6) thereunder,4 which renders the solicited written comments on the communications relating to the proposed rule change effective upon proposal. proposed rule change between the filing with the Commission. The III. Date of Effectiveness of the Commission and any person, other than Commission is publishing this notice to Proposed Rule Change and Timing for those that may be withheld from the solicit comments on the proposed rule Commission Action public in accordance with the change from interested persons. The foregoing proposed rule change provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s will take effect upon filing with the available for inspection and copying in Statement of the Terms of Substance of Commission pursuant to Section the Commission’s Public Reference the Proposed Rule Change 19(b)(3)(A)(i) of the Act 6 and Rule 19b– Room, 100 F Street, NE., Washington, 4(f)(1) thereunder,7 because it DC 20549, on official business days The Exchange proposes to amend NYSE Rule 123B.30 (Exchange constitutes a stated policy, practice, or between the hours of 10 a.m and 3 p.m. Automated Order Routing System) to interpretation with respect to the Copies of such filing also will be meaning, administration, or align its rule governing sponsored available for inspection and copying at access to the Exchange with the current enforcement of an existing rule. the principal office of the CBOE. All At any time within 60 days of the industry standard. The text of the comments received will be posted proposed rule change is available at filing of the proposed rule change, the without change; the Commission does Commission may summarily abrogate NYSE, the Commission’s Public not edit personal identifying such rule change if it appears to the Reference Room, and http:// Commission that such action is information from submissions. You www.nyse.com. necessary or appropriate in the public should submit only information that you wish to make available publicly. II. Self-Regulatory Organization’s interest, for the protection of investors, Statement of the Purpose of, and or otherwise in furtherance of the All submissions should refer to File Statutory Basis for, the Proposed Rule purposes of the Act. Number SR–CBOE–2008–106 and Change IV. Solicitation of Comments should be submitted on or before November 10, 2008. In its filing with the Commission, the Interested persons are invited to self-regulatory organization included submit written data, views, and For the Commission, by the Division of statements concerning the purpose of, arguments concerning the foregoing, Trading and Markets, pursuant to delegated and basis for, the proposed rule change including whether the proposed rule authority.8 and discussed any comments it received change is consistent with the Act. Florence E. Harmon, on the proposed rule change. The text Comments may be submitted by any of Acting Secretary. of those statements may be examined at the following methods: [FR Doc. E8–24752 Filed 10–17–08; 8:45 am] the places specified in Item IV below. BILLING CODE 8011–01–P 4 15 U.S.C. 78(f)(b). 1 15 U.S.C. 78s(b)(1). 5 15 U.S.C. 78(f)(b)(5). 2 17 CFR 240.19b–4. 6 15 U.S.C. 78s(b)(3)(A)(i). 3 15 U.S.C. 78s(b)(3)(A). 7 17 CFR 240.19b–4(f)(1). 8 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(6).

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The Exchange has prepared summaries, Exchange designating its Sponsored Insofar as the amendments proposed set forth in sections A, B, and C below, Participant(s) and acknowledging its herein have been previously determined of the most significant aspects of such responsibilities thereto.8 by the Commission to be consistent with statements. Pursuant to the above agreements, the the protection of investors and the public interest, the Exchange believes A. Self-Regulatory Organization’s Sponsored Participant and the Statement of the Purpose of, and Sponsoring Member Organization agree that the proposed amendments to NYSE Statutory Basis for, the Proposed Rule to comply with the rules and procedures Rule 123B.30 are necessary to further Change of the Exchange. In addition, the align it with the industry standard for Sponsoring Member Organization must sponsored access. 1. Purpose file a notice of consent and must agree 2. Statutory Basis The Exchange proposes to amend to be responsible for the conduct of the NYSE Rule 123B.30 (Exchange Sponsored Participant and/or any The Exchange believes the proposed Automated Order Routing System) to person acting on its behalf, and any and rule change is consistent with and align its rule governing sponsored all orders entered by, or executions of, furthers the objectives of Section 6(b)(5) access to the Exchange with the current the Sponsored Participant or its of the Act,11 in that it is designed to industry standard. employees or agents (including prevent fraudulent and manipulative unauthorized transactions) are binding practices, to promote just and equitable Background and Current NYSE Rule on the Sponsoring Member 123B.30 principles of trade, to remove Organization. The Sponsoring Member impediments to, and perfect the The Exchange recently adopted NYSE must also have adequate procedures and mechanisms of, a free and open market Rule 123B.30, which sets forth the controls to provide oversight of and a national market system, and, in requirements for a member or member Authorized Traders who enter orders on general, to protect investors and the organization (‘‘Sponsoring Member behalf of Sponsored Participants and to public interest. The proposed rule Organization’’) to provide a non- prevent the improper use of or access to change also supports the principles of member firm or customer (‘‘Sponsored Exchange systems or facilities.9 Section 11A(a)(1) 12 of the Act in that it Participant’’) with sponsored access to Sponsored Participants are required to 5 seeks to ensure economically efficient Exchange systems and facilities. The establish adequate procedures and execution of securities transactions and Exchange modeled NYSE Rule 123B.30 controls to monitor the use and access fair competition among brokers and on the industry standard sponsored of Exchange systems and facilities by dealers and among exchange markets. access rules of its affiliate exchange, their employees, agents, and customers. The Exchange believes the proposed NYSE Arca, Inc. (‘‘NYSE Arca’’), and The Sponsored Participant must also amendments to NYSE Rule 123B.30 will those of other exchanges, including agree to compensate the Sponsoring provide a procedure for sponsored NASDAQ Stock Market LLC, subject to Member Organization, the Exchange, or 6 access to the Exchange consistent with one key distinction. any other third party, for any amounts Unlike other sponsored access rules, the current industry standard and the due arising out of the Sponsored NYSE Rule 123B.30 requires agreements Act. Participant’s access to and the use of between (i) a Sponsoring Member Exchange systems and facilities.10 B. Self-Regulatory Organization’s Organization and a Sponsored Statement on Burden on Competition Participant, and (ii) the Sponsoring Proposed Amendments Member Organization and the The Exchange does not believe that In order to better align its sponsored Exchange.7 A Sponsored Participant the proposed rule change will impose access rule with the current industry must enter into a sponsored access any burden on competition that is not standard the Exchange proposes to agreement containing specific necessary or appropriate in furtherance provisions governing use and access of amend NYSE Rule 123B.30. First, the of the purposes of the Act. Exchange systems and facilities that Exchange proposes to amend Rule C. Self-Regulatory Organization’s establishes a proper customer 123B.30(c)(2)(A) to provide for Statement on Comments on the relationship and account(s) with a agreements (i) between a Sponsoring Proposed Rule Change Received From Sponsoring Member Organization Member Organization and a Sponsored Members, Participants, or Others through which the Sponsored Participant, and (ii) among the Participant may trade on the Exchange. Sponsoring Member Organization, the Sponsored Participant and the No written comments were solicited The Sponsoring Member Organization or received with respect to the proposed must enter into an agreement with the Exchange. In addition, the Exchange proposes to rule change. 5 See Securities Exchange Release No. 58429 amend the language contained in III. Date of Effectiveness of the (August 27, 2008), 73 FR 51676 (September 4, 2008) subparagraph (d)(4) to refer to access ‘‘to Proposed Rule Change and Timing for (SR–NYSE–2008–71). the Exchange’’, as opposed to Exchange Commission Action 6 See Securities Exchange Act Release No. 53615 facilities or NYSE systems. Throughout (April 7, 2006), 71 FR 19226 (April 13, 2006) (SR– Because the foregoing rule change PCX–2006–24) (adopting NYSE Arca Equities Rules NYSE Rule 123B.30, with the exception 7.29 and 7.30). See also Securities Exchange Act of (d)(4), the provisions governing does not: (1) Significantly affect the Release No. 55550 (March 28, 2007), 72 FR 16389 sponsored participation reference access protection of investors or the public (April 4, 2007) (SR–NASDAQ–2007–010) ‘‘to the Exchange’’. NYSE believes that interest; (2) impose any significant (amending NASDAQ Rule 4611(d) to conform its burden on competition; and (3) become requirements to NYSE Arca Rules 7.29 and 7.30). these inconsistent references within 7 Other sponsored access rules require both the Rule 123B.30(d)(4) could cause operative for 30 days after the date of Sponsoring Member Organization and the confusion unless it is amended to track this filing, or such shorter time as the Sponsored Participant to enter into agreements with the other provisions of the Rule. Commission may designate, it has the Exchange governing the use of and access to become effective pursuant to Section Exchange systems and facilities. See, e.g., NYSE Rules 86(o)(2)(A) and 1500(g)(3)(B)(ii), concerning 8 See NYSE Rule 123B.30, paragraphs (c)(1)–(3). sponsored access to NYSE Bonds and NYSE 9 See NYSE Rule 123B.30(c)(2), (d). 11 15 U.S.C. 78f(b)(5). MatchPoint, respectively. 10 See NYSE Rule 123B.30(c)(2). 12 15 U.S.C. 78k–1(a)(1).

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19(b)(3)(A) of the Act 13 and Rule 19b– All submissions should refer to File (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed 4(f)(6) thereunder.14 Number SR–NYSE–2008–100. This file with the Securities and Exchange A proposed rule change filed under number should be included on the Commission (‘‘Commission’’) the 19b–4(f)(6) normally may not become subject line if e-mail is used. To help the proposed rule change as described in operative prior to 30 days after the date Commission process and review your Items I and II below, which Items have of filing.15 However, Rule 19b– comments more efficiently, please use been substantially prepared by the 4(f)(6)(iii) 16 permits the Commission to only one method. The Commission will Exchange. The Exchange has designated designate a shorter time if such action post all comments on the Commission’s the proposed rule change as constituting is consistent with the protection of Internet Web site (http://www.sec.gov/ a ‘‘non-controversial’’ rule change under investors and the public interest. The rules/sro.shtml). Copies of the paragraph (f)(6) of Rule 19b–4 under the Exchange has requested that the submission, all subsequent Act,4 which renders the proposal Commission waive the 30-day operative amendments, all written statements effective upon receipt of this filing by delay so that the proposal may become with respect to the proposed rule the Commission. The Commission is operative upon filing. The Commission change that are filed with the publishing this notice to solicit believes that waiving the 30-day Commission, and all written comments on the proposed rule change operative delay is consistent with the communications relating to the from interested persons. protection of investors and the public proposed rule change between the I. Self-Regulatory Organization’s interest. The Commission hereby grants Commission and any person, other than Statement of the Terms of Substance of the Exchange’s request and designates those that may be withheld from the the Proposed Rule Change the proposal operative upon filing.17 public in accordance with the At any time within 60 days of the provisions of 5 U.S.C. 552, will be The Exchange proposes to amend filing of such proposed rule change the available for inspection and copying in certain rules that govern an Exchange Commission may summarily abrogate the Commission’s Public Reference member’s conduct in doing business such rule change if it appears to the Room, on official business days between with the public. The proposed rule Commission that such action is the hours of 10 a.m. and 3 p.m. Copies change would require member necessary or appropriate in the public of the filing also will be available for organizations to integrate the interest, for the protection of investors inspection and copying at the principal responsibility for supervision of a or otherwise in furtherance of the office of the Exchange. All comments member organization’s public customer purposes of the Act. received will be posted without change; options business into its overall supervisory and compliance program. In IV. Solicitation of Comments the Commission does not edit personal identifying information from addition, the Exchange proposes to Interested persons are invited to submissions. You should submit only amend certain rules to strengthen submit written data, views and information that you wish to make member organizations’ supervisory arguments concerning the foregoing, available publicly. All submissions procedures and internal controls as they including whether the proposed rule should refer to File Number SR–NYSE– relate to a member’s public customer change is consistent with the Act. 2008–100 and should be submitted on options business. The text of the Comments may be submitted by any of or before November 10, 2008. proposed rule is available on the the following methods: Exchange’s Web site at http:// For the Commission, by the Division of Electronic Comments Trading and Markets, pursuant to delegated www.nyse.com, at the Exchange’s 18 principal office, and at the • authority. Use the Commission’s Internet Commission’s Public Reference Room. comment form (http://www.sec.gov/ Florence E. Harmon, rules/sro.shtml); or Acting Secretary. II. Self-Regulatory Organization’s • Send an e-mail to rule- [FR Doc. E8–24753 Filed 10–17–08; 8:45 am] Statement of the Purpose of, and [email protected]. Please include File BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule Number SR–NYSE–2008–100 on the Change subject line. In its filing with the Commission, the SECURITIES AND EXCHANGE Paper Comments Exchange included statements COMMISSION concerning the purpose of, and basis for, • Send paper comments in triplicate [Release No. 34–58748; File No. SR– the proposed rule change and discussed to Secretary, Securities and Exchange NYSEArca–2008–102] any comments it received on the Commission, 100 F Street, NE., proposed rule change. The text of those Washington, DC 20549–1090. Self-Regulatory Organizations; NYSE statements may be examined at the Arca, Inc.; Notice of Filing and places specified in Item IV below. The 13 15 U.S.C. 78s(b)(3)(A). Immediate Effectiveness of Proposed Exchange has prepared summaries, set 14 17 CFR 240.19b–4(f)(6). Rule Change Amending NYSE Arca 15 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule forth in sections A, B, and C below, of 19b–4(f)(6)(iii) requires that a self-regulatory Rules Governing Doing Business With the most significant parts of such organization submit to the Commission written the Public statements. notice of its intent to file the proposed rule change, along with a brief description and text of the October 8, 2008. A. Self-Regulatory Organization’s proposed rule change, at least five business days Pursuant to Section 19(b)(1) 1 of the Statement of the Purpose of, and the prior to the date of filing of the proposed rule change, or such shorter time as designated by the Securities Exchange Act of 1934 Statutory Basis for, the Proposed Rule 2 3 Commission. The Exchange has requested the (‘‘Act’’) and Rule 19b–4 thereunder, Change Commission to waive this five-day pre-filing notice notice is hereby given that, on 1. Purpose requirement. The Commission hereby grants this September 25, 2008, NYSE Arca, Inc. request. The purpose of the proposed rule 16 Id. 18 change is to create a supervisory 17 For the purposes only of waiving the 30-day 17 CFR 200.30–3(a)(12). operative delay, the Commission has considered the 1 15 U.S.C. 78s(b)(1). structure for options that is similar to proposed rule’s impact on efficiency, competition, 2 15 U.S.C. 78a. and capital formation. See 15 U.S.C. 78c(f). 3 17 CFR 240.19b–4. 4 17 CFR 240.19b–4(f)(6).

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that required by New York Stock have become more integrated with other amendment to Rule 9.26 would clarify Exchange (‘‘NYSE’’) and Financial securities in the implementation of the qualification requirements for Industry Regulatory Authority particular strategies. Thus, the current individuals designated as ROPs.10 (‘‘FINRA’’) (f/k/a the National requirement for a separately designated The proposed rule change would Association of Securities Dealers senior supervisor in respect to all require options discretionary accounts, (‘‘NASD’’)) rules.5 The proposed rule aspects of a member organization’s the acceptance of which must be change would eliminate the requirement options activities, rather than clarifying approved by a ROP-qualified individual that member organizations qualified to the allocation of supervisory (other than the ROP who accepted the do a public customer business in responsibilities within the member account), to be supervised in the same options must designate a single person organization, may have just the opposite manner as the supervision of other to act as Senior Registered Options effect by failing to take into account the securities accounts that are handled on Principal (‘‘SROP’’) for the member way in which these responsibilities are a discretionary basis. The proposed rule organization and that each such member actually assigned. In addition, by change would also eliminate the organization designate a specific permitting supervision of a member requirement that discretionary options individual as a Compliance Registered organization’s options activities to be orders be approved on the day of entry Options Principal (‘‘CROP’’). Instead handled in the same manner as the by a ROP (with one exception, as member organizations would be supervision of its other securities described below). This requirement required to integrate the SROP and activities as well as its futures activities, predates the Options Study and is not CROP functions into their overall the proposed rule change is designed to consistent with the use of supervisory supervisory and compliance programs. ensure that supervisory responsibility tools in computerized format or The SROP concept was first over each segment of the member exception reports generated after the introduced by the Chicago Board organization’s business is assigned to close of a trading day. No similar Options Exchange (‘‘CBOE’’) during the the best qualified persons in the requirement exists for supervision of early years of the development of the member organization, thereby other securities accounts that are listed options market. Previously, under enhancing the overall quality of handled on a discretionary basis.11 CBOE rules, member organizations were supervision. The same holds true for the Discretionary orders must be reviewed required to designate one or more compliance function. in accordance with a member persons qualified as ROPs having For example, most member organization’s written supervisory supervisory responsibilities in respect to organizations have designated one procedures. The proposed rule change the member organization’s options person to have supervisory would ensure that supervisory business. As the number of ROPs at responsibility over the application of responsibilities are assigned to specific larger member organizations began to margin requirements and other matters ROP-qualified individuals, thereby increase, options exchanges imposed an pertaining to the extension of credit. enhancing the quality of supervision. additional requirement that member The proposed rule change would enable The proposed rule change would organizations designate one of their a member organization to include revise Exchange Rule 9.18(e) by adding, ROPs as the SROP. This was intended within the scope of such a person’s as Commentary .02, a requirement that to eliminate confusion as to where the duties the supervision over the proper any member organization that does not compliance and supervisory margining of options accounts, thereby utilize computerized surveillance tools responsibilities lay by centralizing in a assuring that the most qualified person for the frequent and appropriate review single supervisory officer overall is charged with this responsibility and of discretionary account activity must responsibility for the supervision of a at the same time eliminating any establish and implement procedures to member organization’s options uncertainty that might now exist as to require ROP-qualified individuals who activities.6 Subsequently, following the whether this responsibility lies with the have been designated to review recommendation of the Commission’s senior credit supervisor or with the discretionary accounts to approve and Options Study, options exchanges SROP. initial each discretionary order on the required member organizations to Similarly, the proposed rule change day entered. The Exchange believes that designate a CROP to be responsible for would allow a member organization to any member organization that does not the member organization’s overall specifically designate one or more utilize computerized surveillance tools compliance program in respect to its individuals as being responsible for to monitor discretionary account options activities.7 The CROP may be approving a ROP’s acceptance of activity should continue to be required the same person who is designated as discretionary accounts8 and exceptions to perform the daily manual review of SROP. to a member organization’s suitability discretionary orders. Since the SROP and CROP standards for trading uncovered short Under the proposed rule change, requirements were first imposed, the options.9 The proposed rule change options discretionary accounts would supervisory function in respect to the would allow member organizations the continue to receive frequent appropriate options activities of most securities flexibility to assign such supervisory review by designated ROP- firms has been integrated into the matrix responsibilities, which formerly rested qualified individuals. Additionally, of supervisory and compliance with the SROP and/or CROP, to more member organizations would continue functions in respect to the firms’ other than one ROP-qualified individual to be required to designate ROP- securities activities. This not only where the member organization believes qualified individuals to review and reflects the maturity of the options it advantageous to do so to enhance its approve the acceptance of options market, but also recognizes the ways in supervisory or compliance structure. discretionary accounts in order to which the uses of options themselves Typically, a member organization may determine whether the ROP accepting wish to divide these functions on the the account had a reasonable basis for 5 See NYSE Rule 342 and NASD Rule 3010. basis of geographic region or functional believing that the customer was able to 6 See Securities and Exchange Commission, 96th Cong., 1st Sess., Report of the Special Study of the considerations. The proposed Options Markets (Comm. Print 1978) 316 fn. 11 10 See commentaries .02 and .04 to proposed Rule (‘‘Options Study’’). 8 See proposed Rule 9.18(e). 9.26. 7 Id. at p. 335. 9 See proposed Rule 9.18(b)(6)(C). 11 See e.g., NYSE Rule 408.

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understand and bear the risks of the in the course of the Exchange’s routine managers be conducted by a qualified proposed strategies or transactions. This examination of member organizations to ROP who is either senior to, or requirement would provide an ensure that supervisory and compliance otherwise ‘‘independent of,’’ the additional level of supervisory audit responsibilities are adequately defined. producing manager under review.19 over options discretionary accounts that The Exchange believes that the This provision is intended to ensure do not exist for other securities proposed rule change recognizes that that all options sales activity of a discretionary accounts. options are no longer in their infancy, producing manager is monitored for In addition, the proposed rule change have become more integrated with other compliance with applicable regulatory would require that each member securities in the implementation of requirements by persons who do not organization submit to the Exchange a particular strategies, and thus should have a personal interest in such activity. written report by April 1 of each year not continue to be regulated as though Proposed Rule 9.18(d)(1)(C)(ii) would that details the member organization’s they are a new and experimental provide a limited exception for supervision and compliance effort, product. The Exchange believes that the members so limited in size and including its options compliance proposed rule change is appropriate and resources that there is no qualified program, during the preceding year and does not materially alter the supervisory person senior to, or otherwise reports on the adequacy of the member operations of member organizations. independent of, the producing manager organization’s ongoing compliance The Exchange believes the supervisory to conduct the review. In this case, the processes and procedures.12 and compliance structure in place for reviews may be conducted by a Proposed Rule 9.18(d)(2)(H) would non-options products at most member qualified ROP to the extent practicable. require that each member organization organizations is not materially different Under proposed Rule 9.18(d)(1)(C)(iii), a submit, by April 1 of each year, a copy from the structure in place for options. member relying on the limited size and of the Rule 9.18(d)(2)(G) annual report resources exception would be required Supervisory Procedures and Internal to one or more of its control persons or, to document the factors used to Controls if the member organization has no determine that compliance with each of control person, to the audit committee The Exchange also proposes to amend the ‘‘senior’’ or ‘‘otherwise of its board of directors or its equivalent certain rules to strengthen member and independent’’ standards of Rule committee or group.13 member organizations’ supervisory 9.18(d)(1)(C)(i) is not possible, and that Proposed Rule 9.18(d)(2)(G) would procedures and internal controls as they the required supervisory systems and provide that a member organization that relate to a member’s public customer procedures in place with respect to any specifically includes its options options business. The proposed rule producing manager comply with the compliance program in a report that changes described below are modeled provisions of Rule 9.18(d)(1)(C)(i) to the complies with substantially similar after NYSE, NASD and CBOE rules extent practicable. requirements of NYSE and NASD rules approved by the Commission in 2004 16 Proposed paragraph (d)(1)(C)(iv) of will be deemed to have satisfied the and in 2007,17 respectively. The Rule 9.18 would provide that a member requirements of Rules 9.18(d)(2)(G) and Exchange believes the following organization that complies with 9.18(d)(2)(H). proposal to strengthen member requirements of NYSE or NASD rules Although the proposed rule change supervisory procedures and internal that are substantially similar to the would eliminate entirely the positions controls is appropriate and consistent requirements in Rules 9.18(d)(1)(C)(i), and titles of the SROP and CROP, with the preceding proposal to integrate (d)(1)(C)(ii) and (d)(1)(C)(iii) will be member organizations would still be options and non-options sales practice deemed to have met such requirements. required to designate a single general supervision and compliance functions. Under proposed Rule 9.18(d)(2)(A), a partner or executive officer to assume The proposed revisions to Exchange member, upon a customer’s written overall authority and responsibility for Rule 9.18(d)(1)(C) would require the instructions, may hold mail for a internal supervision, control of the development and implementation of customer who will not be at his or her member organization and compliance written policies and procedures usual address for no longer than two with securities laws and regulations.14 reasonably designed to supervise sales months if the customer is on vacation or Member organizations would also be managers and other supervisory traveling, or three months if the required to designate specific qualified personnel who service customer options customer is going abroad. This individuals as having supervisory or accounts (i.e., who act in the capacity of compliance responsibilities over each a registered representative).18 This 19 An ‘‘otherwise independent’’ person is defined requirement would apply to branch in proposed Rule 9.18(d)(1)(C)(i) as one who: Is aspect of the member organization’s either senior to, or otherwise independent of, the options activities and to set forth the office managers, sales managers, producing manager under review. For purposes of names and titles of these individuals in regional/district sales managers, or any this Rule, an ‘‘otherwise independent’’ person: May their written supervisory procedures.15 person performing a similar supervisory not report either directly or indirectly to the function. Such policies and procedures producing manager under review; must be situated This is consistent with the integration of in an office other than the office of the producing options supervision into the overall are expected to encompass all options manager; must not otherwise have supervisory supervisory and compliance structure of sales-related activities. Proposed Rule responsibility over the activity being reviewed; and a member organization. In connection 9.18(d)(1)(C)(i) would require that must alternate such review responsibility with supervisory reviews of producing sales another qualified person every two years or less. with the approval of the proposed rule Further, if a person designated to review a change, the Exchange intends to review producing manager receives an override or other member organizations’ written 16 See Securities Exchange Act Release No. 49882 income derived from that producing manager’s supervisory and compliance procedures (June 17, 2004), 69 FR 35108 (June 23, 2004) (SR– customer activity that represents more than 10% of NYSE–2002–36), and Securities Exchange Act the designated person’s gross income derived from Release No. 49883 (June 17, 2004), 69 FR 35092 the member organization over the course of a rolling 12 See proposed Rule 9.18(d)(2)(G) which is (June 23, 2004) (SR–NASD–2002–162). twelve-month period, the member organization modeled after NYSE Rule 342.30. 17 See Securities Exchange Act Release No. 56492 must establish alternative senior or otherwise 13 Proposed Rule 9.18(d)(2)(H) is modeled after (September 21, 2007), 72 FR 54952 (September 27, independent supervision of that producing manager NYSE Rule 354. 2007) (SR–CBOE–2007–106). to be conducted by a qualified Registered Options 14 See proposed Rule 9.18(d)(1). 18 Proposed Rule 9.18(d)(1)(C) is modeled after Principal other than the designated person 15 See commentary .01 to proposed Rule 9.18(d). NYSE Rule 342.19. receiving the income.

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provision would help ensure that Proposed Rule 9.18(d)(2)(D)(1) would designate a Chief Compliance Officer members that hold mail for customers establish requirements for branch office (‘‘CCO’’). Proposed Rule 9.18(d)(2)(G)(5) who are away from their usual inspections similar to the requirements would require each member addresses, do so only pursuant to the of NYSE Rule 342.24. Specifically, organization’s Chief Executive Officer customer’s written instructions and for proposed Rule 9.18(d)(2)(D)(2) would (‘‘CEO’’), or equivalent, to certify a specified, relatively short period of require a member organization to annually that the member organization time.20 inspect each supervisory branch office has in place processes to: (1) Establish Proposed Rule 9.18(d)(2)(B) would at least annually and each non- and maintain policies and procedures require that, before a customer options supervisory branch office at least once reasonably designed to achieve order is executed, the account name or every three years.24 The proposed rule compliance with applicable Exchange designation must be placed upon the further would require that persons who rules and federal securities laws and memorandum for each transaction. In conduct a member organization’s annual regulations; (2) modify such policies addition, only a qualified ROP would be branch office inspection must be and procedures as business, regulatory, permitted to approve any changes in independent of the direct supervision or and legislative changes and events account names or designations. The control of the branch office (i.e., not the dictate; and (3) test the effectiveness of ROP also would be required to branch office manager, or any person such policies and procedures on a document the essential facts relied upon who directly or indirectly reports to periodic basis, the timing of which is in approving the changes and maintain such manager, or any person to whom reasonably designed to ensure the record in a central location. A such manager directly reports). The continuing compliance with Exchange member would be required to preserve Exchange believes that requiring branch rules and federal securities laws and any account designation change office inspections be conducted by regulations. documentation for a period of not less someone who has no significant than three years, with the Proposed Rule 9.18(d)(2)(G)(5) further financial interest in the success of a would require the CEO to attest that the documentation preserved for the first branch office should lead to more two years in an easily accessible place, CEO has conducted one or more objective and vigorous inspections. meetings with the CCO in the preceding as the term ‘‘easily accessible place’’ is Under proposed Rule 9.18(d)(2)(E), used in Rule 17a–4 of the Act.21 The 12 months to discuss the compliance any member organization seeking an processes in proposed Rule Exchange believes the proposed rule exemption, pursuant to Rule would help to protect account name and 9.18(d)(2)(G)(5)(ii), that the CEO has 9.18(d)(2)(D)(ii), from the annual branch consulted with the CCO and other designation information from possible office inspection requirement would be fraudulent activity.22 officers to the extent necessary to attest required to submit to the Exchange to the statements in the certification, Proposed Rule 9.18(d)(2)(C) would written policies and procedures for require member organizations to and the compliance processes are systematic risk-based surveillance of its evidenced in a report, reviewed by the develop and maintain adequate controls branch offices, as defined in Rule over each of their business activities. CEO, CCO, and such other officers as 9.18(d)(2)(E). Proposed Rule the member organization deems The proposed rule further would require 9.18(d)(2)(F) would require that annual that such controls include the necessary to make the certification, that branch office inspection programs is provided to the member establishment of procedures to include, at a minimum, testing and independently verify and test the organization’s board of directors and verification of specified internal audit committee (if such committee supervisory systems and procedures for 25 controls. Proposed Rule exists).26 those business activities. Member 9.18(d)(2)(D)(3) would provide that a organizations would be required to member organization that complies with Rule 9.18(e) allows member include in the annual report prepared requirements of NYSE or NASD rules organizations to exercise time and price pursuant to Rule 9.18(d)(2)(G) a review that are substantially similar to the discretion on orders for the purchase or of the member organization’s efforts in requirements in Rules 9.18(d)(2)(D), (E) sale of a definite number of options this regard, including a summary of the and (F) will be deemed to have met such contracts in a specified security. The tests conducted and significant requirements. Exchange proposes to amend Rule exceptions identified. The Exchange In conjunction with the proposed 9.18(e) to limit the duration of this believes proposed Rule 9.18(d)(2)(C)(i) changes to Rules 9.18(d)(2)(D), (E) and discretionary authority to the day it is would enhance the quality of member (F), the Exchange proposes to amend granted, absent written authorization to organizations’ supervision.23 Rule 9.18(m) Commentary .01 to define the contrary. In addition, the proposed Proposed Rule 9.18(d)(2)(C)(ii) would rule would require any exercise of time provide that a member organization that ‘‘branch office’’ in a way that is substantially similar to the definition of and price discretion to be reflected on complies with requirements of NYSE or the customer order ticket. The proposed NASD rules that are substantially branch office in NYSE Rule 342.10. Proposed Rule 9.18(d)(2)(G)(4) would one-day limitation would not apply to similar to the requirements in Rule require a member organization to time and price discretion exercised for 9.18(d)(2)(C)(i) will be deemed to have orders affected with or for an met such requirements. 24 Proposed Rules 9.18(d)(2)(D)(1)(i) and (ii) institutional account pursuant to valid would provide members with two exceptions from Good-Till-Cancelled instructions issued 20 Proposed Rule 9.18(d)(2)(A) is modeled after the annual branch office inspection requirement; a on a ‘‘not held’’ basis. The Exchange NASD Rule 3110(i). member may demonstrate to the satisfaction of the 21 17 CFR 240.17a–4. Exchange that other arrangements may satisfy the believes that investors will receive 22 Propose Rule 9.18(d)(2)(B) is modeled after Rule’s requirements for a particular branch office, greater protection by clarifying the time NASD Rule 3110(j). or based upon a member organization’s written such discretionary orders remain 23 Proposed Rule 9.18(d)(2)(C)(i) is modeled after policies and procedures providing for a systematic pending.27 NYSE Rule 342.23. Paragraph (C)(ii) would provide risk-based surveillance system, the member that a member organization that complies with organization submits a proposal to the Exchange requirements of NYSE or the NASD that are and receives, in writing, an exemption from this 26 Proposed Rule 9.18(d)(2)(G)(5) is modeled after substantially similar to the requirements in Rule requirement pursuant to Rule 9.18(d)(2)(E). NASD Rule 3013 and NYSE Rule 342.30(e). 9.18(d)(2)(C)(i) will be deemed to have met such 25 Proposed Rules 9.18(d)(2)(E) and (d)(2)(F) are 27 Proposed Rule 9.18(e)(i) is modeled after NASD requirements. modeled after NYSE Rules 342.25 and 342.26. Rule 2510(d)(l).

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The proposed rule changes listed (ii) impose any significant burden on Electronic Comments above are substantially similar to competition; and • changes already implemented by the (iii) become operative for 30 days Use the Commission’s Internet NYSE, NASD (n/k/a FINRA) and from the date on which it was filed, or comment form (http://www.sec.gov/ CBOE.28 such shorter time as the Commission rules/sro.shtml); or may designate, if consistent with the • 2. Statutory Basis Send an e-mail to rule- protection of investors and the public [email protected]. Please include File The proposed rule change would interest. Number SR–NYSEArca–2008–102 on integrate the supervision and The Exchange notes that the proposed the subject line. compliance functions relating to amendment does not propose any new member organizations’ public customer policies or provisions that are unique or Paper Comments unproven and is substantially similar to option activities into the overall • supervisory structure of a member NYSE, FINRA, and CBOE rules. For the Send paper comments in triplicate organization, thereby eliminating any foregoing reasons, the Exchange believes to Secretary, Securities and Exchange uncertainty over where supervisory that this rule filing qualifies for Commission, 100 F Street, NE., responsibilities lies. The proposed rule expedited effectiveness as a ‘‘non- Washington, DC 20549–1090. change would also foster the controversial’’ rule change under All submissions should refer to File strengthening of member organizations’ paragraph (f)(6) of Rule 19b–4 of the Number SR–NYSEArca–2008–102. This Act. internal controls and supervisory file number should be included on the systems. As such, the proposed rule The Exchange provided the Commission with written notice of its subject line if e-mail is used. To help the changes are consistent with, and further Commission process and review your 29 intent to file this proposed rule change the objectives of, Section 6(b)(5) of the comments more efficiently, please use Act, in that they are designed to at least five business days prior to the 32 only one method. The Commission will promote just and equitable principles of date of the filing. The Exchange requests that the Commission waive the post all comments on the Commission’s trade, to prevent fraudulent and Internet Web site (http://www.sec.gov/ manipulative acts and practices, to 30-day operative delay contained in rules/sro.shtml). Copies of the remove impediments to and perfect the Rule 19b–4(f)(6) of the Act so that submission, all subsequent mechanisms of a free and open market certain Exchange Rules that govern an amendments, all written statements and a national market system, and in Exchange member’s conduct in doing general, to protect investors and public business with the public can come with respect to the proposed rule interest. immediately inline with those of the change that are filed with the NYSE, FINRA, and CBOE, thereby Commission, and all written B. Self-Regulatory Organization’s providing simplicity and clarity for communications relating to the Statement on Burden on Competition cross-member firms. The Commission proposed rule change between the The Exchange does not believe that believes that waiving the 30-day Commission and any person, other than the proposed rule change will impose operative delay is consistent with the those that may be withheld from the any burden on competition that is not protection of investors and the public public in accordance with the necessary or appropriate in furtherance interest. The Commission therefore provisions of 5 U.S.C. 552, will be of the purposes of the Act. This rule grants the Exchange’s request and available for inspection and copying in change is consistent with the regulatory designates the proposal to be operative the Commission’s Public Reference 33 framework maintained by the NYSE, upon filing. Section, 100 F Street, NE., Washington, FINRA and CBOE and as such does not At any time within 60 days of the DC 20549, on official business days filing of the proposed rule change, the impose any burden on competition or between the hours of 10 a.m. and 3 p.m. Commission may summarily abrogate significantly affect the protection of Copies of the filing will also be available such rule change if it appears to the investors. for inspection and copying at NYSE Commission that such action is Arca’s principal office and on its C. Self-Regulatory Organization’s necessary or appropriate in the public Internet Web site at http:// Statement on Comments on the interest, for the protection of investors, Proposed Rule Change Received From or otherwise in furtherance of the www.nyse.com. All comments received Members, Participants, or Others purposes of the Act. will be posted without change; the Commission does not edit personal No written comments were solicited IV. Solicitation of Comments identifying information from or received with respect to the proposed Interested persons are invited to submissions. You should submit only rule change. submit written data, views, and information that you wish to make III. Date of Effectiveness of the arguments concerning the foregoing, available publicly. All submissions Proposed Rule Change and Timing for including whether the proposed rule should refer to File Number SR– Commission Action change is consistent with the Act. NYSEArca–2008–102 and should be Comments may be submitted by any of submitted on or before November 10, Pursuant to Section 19(b)(3)(A) of the the following methods: 2008. Act 30 and Rule 19b–4(f)(6) 31 For the Commission, by the Division of thereunder, NYSE Arca has designated 32 Id. Rule 19b–4(f)(6)(iii) requires a self- Trading and Markets, pursuant to delegated this proposed rule change as one that regulatory organization to give the Commission 34 does not: written notice of its intent to file a proposed rule authority. (i) Significantly affect the protection change at least five business days prior to the date Florence E. Harmon, of investors or the public interest; of the filing of the proposed rule, or such shorter time as designated by the Commission. The Acting Secretary. Exchange has satisfied this requirement. [FR Doc. E8–24754 Filed 10–17–08; 8:45 am] 28 See supra notes 16 and 17. 33 For purposes only of waiving the 30-day BILLING CODE 8011–01–P 29 15 U.S.C. 78f(b)(5). operative delay, the Commission has considered the 30 15 U.S.C. 78s(b)(3)(A). proposed rule’s impact on efficiency, competition 31 17 CFR 240.19b–4(f)(6). and capital formation. See 15 U.S.C. 78c(f). 34 17 CFR 200.30–3(a)(12).

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SMALL BUSINESS ADMINISTRATION which received an EIDL Declaration # (Catalog of Federal Domestic Assistance are Oklahoma, Kansas. Numbers 59002 and 59008) [Disaster Declaration #11472 and #11473] (Catalog of Federal Domestic Assistance Herbert L. Mitchell, Oklahoma Disaster #OK–00024 Numbers 59002 and 59008) Associate Administrator for Disaster Dated: October 9, 2008. Assistance. AGENCY: U.S. Small Business [FR Doc. E8–24869 Filed 10–17–08; 8:45 am] Administration. Sandy K. Baruah, Acting Administrator. BILLING CODE 8025–01–P ACTION: Notice. [FR Doc. E8–24876 Filed 10–17–08; 8:45 am] SUMMARY: This is a notice of an BILLING CODE 8025–01–P Administrative declaration of a disaster DEPARTMENT OF STATE for the State of Oklahoma dated 10/09/ [Public Notice 6412] 2008. SMALL BUSINESS ADMINISTRATION Incident: Severe Storms, Tornadoes, 60-Day Notice of Proposed Renewal and Flooding. [Disaster Declaration # 11464 and # 11465] Information Collection: Form DS–0071, Incident Period: 09/11/2008 through Affidavit of Identifying Witness, 1405– 09/18/2008. Puerto Rico Disaster Number PR– 0088 Effective Date: 10/09/2008. 00003 Physical Loan Application Deadline ACTION: Notice of request for public AGENCY: U.S. Small Business Date: 12/08/2008. comments. Administration. Economic Injury (EIDL) Loan SUMMARY: The Department of State is ACTION: Application Deadline Date: 07/08/2009. Amendment 2. seeking Office of Management and ADDRESSES: Submit completed loan Budget (OMB) approval for the renewal SUMMARY: This is an amendment of the applications to: U.S. Small Business Presidential declaration of a major of information collection described Administration, Processing and disaster for the Commonwealth of below. The purpose of this notice is to Disbursement Center, 14925 Kingsport Puerto Rico (FEMA–1798–DR), dated allow 60 days for public comment in the Road, Fort Worth, TX 76155. 10/01/2008. Federal Register preceding submission FOR FURTHER INFORMATION CONTACT: A. to OMB. We are conducting this process Incident: Severe Storms and Flooding. Escobar, Office of Disaster Assistance, in accordance with the Paperwork U.S. Small Business Administration, Incident Period: 09/21/2008 through Reduction Act of 1995. 409 3rd Street, SW., Suite 6050, 10/03/2008. • Title of Information Collection: Washington, DC 20416. Effective Date: 10/08/2008. Affidavit of Identifying Witness. Physical Loan Application Deadline • OMB Control Number: 1405–0088. SUPPLEMENTARY INFORMATION: Notice is • hereby given that as a result of the Date: 12/01/2008. Type of Request: Revision of a EIDL Loan Application Deadline Date: Currently Approved Collection. Administrator’s disaster declaration, • applications for disaster loans may be 07/01/2009. Originating Office: Department of State, Bureau of Consular Affairs, filed at the address listed above or other ADDRESSES: Submit completed loan Passport Services, Office of Field locally announced locations. applications to: U.S. Small Business The following areas have been Operations, Field Coordination Administration, Processing and Division. CA/PPT/FO/FC. determined to be adversely affected by Disbursement Center, 14925 Kingsport • the disaster: Form Number: DS–0071. Road, Fort Worth, TX 76155. • Respondents: Individuals or Primary Counties: Kay. FOR FURTHER INFORMATION CONTACT: A. Households. Contiguous Counties: Escobar, Office of Disaster Assistance, • Estimated Number of Respondents: Oklahoma: Garfield, Grant, Noble, U.S. Small Business Administration, 336,000. Osage. 409 3rd Street, SW., Suite 6050, • Estimated Number of Responses: Kansas: Cowley, Sumner. Washington, DC 20416. 336,000. The Interest Rates are: • SUPPLEMENTARY INFORMATION: The notice Average Hours Per Response: 5 minutes. Percent of the Presidential disaster declaration • for the Commonwealth of Puerto Rico, Total Estimated Burden: 28,000 dated 10/01/2008 is hereby amended to hours. Homeowners With Credit Avail- • Frequency: On occasion. able Elsewhere ...... 5.750 include the following areas as adversely • Obligation to Respond: Required To Homeowners Without Credit affected by the disaster: Available Elsewhere ...... 2.875 Obtain or Retain a Benefit. Businesses With Credit Available Primary Counties: (Physical Damage DATES: The Department will accept Elsewhere ...... 8.000 and Economic Injury Loans): comments from the public up to 60 days Businesses & Small Agricultural Arroyo, Cabo Rojo, Guanica, from December 19, 2008. Cooperatives Without Credit Guayanilla, Gurabo, Juncos, Lajas, ADDRESSES: You may submit comments Available Elsewhere ...... 4.000 Penuelas, San Lorenzo, Villalba, by any of the following methods: Other (Including Non-Profit Orga- Yauco. • nizations) With Credit Available E-mail: [email protected]. Contiguous Counties: (Economic Injury • Mail (paper, disk, or CD–ROM Elsewhere ...... 5.250 Loans Only): Puerto Rico: Caguas, Businesses and Non-Profit Orga- submissions): Andrina Agnew, U.S. nizations Without Credit Avail- Canovanas, Carolina, Hormigueros, Department of State, CA/PPT/FO/FC, able Elsewhere ...... 4.000 Lares, Maricao, Mayaguez, 2100 Pennsylvania Avenue, NW., 3rd Orocovis, Sabana Grande, San Floor/Room 3040/SA–29, Washington, The number assigned to this disaster German, Trujillo Alto. DC 20037. for physical damage is 11472 6 and for All other information in the original You must include the DS form economic injury is 11473 0. The States declaration remains unchanged. number (if applicable), information

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collection title, and OMB control her identity to the satisfaction of a Floor/Room 3040/SA–29, Washington, number in any correspondence. person authorized to accept passport DC 20037. FOR FURTHER INFORMATION CONTACT: applications. The identifying witness You must include the DS form Direct requests for additional must complete and sign this form in the number (if applicable), information information regarding the collection presence of the person authorized to collection title, and OMB control accept passport applications. listed in this notice, including requests number in any correspondence. for copies of the proposed information Dated: October 10, 2008. FOR FURTHER INFORMATION CONTACT: collection and supporting documents, to Brenda S. Sprague, Direct requests for additional Andrina Agnew, U.S. Department of Deputy Assistant Secretary for Passport State, CA/PPT/FO/FC, 2100 Services, Bureau of Consular Affairs, information regarding the collection Pennsylvania Avenue, NW., 3rd Floor/ Department of State. listed in this notice, including requests Room 3040/SA–29, Washington, DC [FR Doc. E8–24906 Filed 10–17–08; 8:45 am] for copies of the proposed renewal of 20037, who may be reached at (202) BILLING CODE 4710–06–P information collection and supporting 663–2445 or at [email protected]. documents, to Andrina Agnew, U.S. SUPPLEMENTARY INFORMATION: We are Department of State, CA/PPT/FO/FC, soliciting public comments to permit DEPARTMENT OF STATE 2100 Pennsylvania Ave., NW., 3rd the Department to: [Public Notice: 6410] Floor/Room 3040/SA–29, Washington, • Evaluate whether the proposed DC 20037, who may be reached on 202– information collection is necessary for 60-Day Notice of Proposed Renewal of 663–2445 or at [email protected]. the proper performance of our Information Collection: Form DS–0064, SUPPLEMENTARY INFORMATION: We are functions. Statement Regarding a Lost or Stolen soliciting public comments to permit • Evaluate the accuracy of our Passport, 1405–0014 estimate of the burden of the proposed the Department to: collection, including the validity of the ACTION: Notice of request for public • Evaluate whether the proposed methodology and assumptions used. comments. information collection is necessary for • Enhance the quality, utility, and the proper performance of our SUMMARY: The Department of State is clarity of the information to be functions. collected. seeking Office of Management and • Evaluate the accuracy of our • Minimize the reporting burden on Budget (OMB) approval for the those who are to respond, including the information collection renewal estimate of the burden of the proposed use of automated collection techniques described below. The purpose of this collection, including the validity of the or other forms of technology. notice is to allow 60 days for public methodology and assumptions used. comment in the Federal Register • Enhance the quality, utility, and Abstract of Proposed Collection preceding submission to OMB. We are clarity of the information to be The Affidavit of Identifying Witness, conducting this process in accordance collected. with the Paperwork Reduction Act of Form DS–0071, is used by the • Minimize the reporting burden on Department of State in making a 1995. • those who are to respond, including the determination of the applicant’s Title of Information Collection: use of automated collection techniques eligibility to be documented as a citizen Statement Regarding a Lost or Stolen or other forms of technology. or a non-citizen national of the United Passport. • States. The form is used by Acceptance OMB Control Number: 1405–0014. Abstract of proposed collection: The • Agents and Consular Officers to collect Type of Request: Revision of a form is used prior to passport issuance information for the purpose of Currently Approved Collection. and solicits information relating to the • Originating Office: CA/PPT/FO/FC. loss or theft of a valid U.S. passport. The establishing the identity of a passport • Form Number: DS–0064. information is used by the United States applicant who has not submitted • adequate evidence with his/her passport Respondents: Individuals or Department of State to ensure that no Households. application. The primary purpose for • person shall bear more than one valid or soliciting the information is to establish Estimated Number of Respondents: potentially valid U.S. passport book and identity and entitlement to issuance of 300,000. passport card at any one time, except as • Estimated Number of Responses: a United States passport, and to authorized by the Department, and is 300,000. properly administer and enforce the also used to combat passport fraud and • Average Hours per Response: 5 laws pertaining to issuance thereof. misuse. Lack of identity information may result minutes. • Methodology: This form is used in in the application for a United States Total Estimated Burden: 25,000 conjunction with the Form DS–11, passport being denied. Inaccurate hours. • Application for a U.S. Passport, or identity evidence could possibly result Frequency: On occasion. • Obligation to Respond: Required to in issuance of a passport to a non-U.S. submitted separately to report loss or Obtain a Benefit. citizen or to someone using an assumed theft of a U.S. passport. Passport identity. DATES: The Department will accept Services collects the information when comments from the public up to 60 days a U.S. citizen or non-citizen national Methodology from October 20, 2008. applies for a new U.S. passport and has The Affidavit of Identifying Witness, ADDRESSES: You may submit comments been issued a previous, still valid U.S. Form DS–0071, is used in conjunction by any of the following methods: passport that has been lost or stolen, or with the Application for a U.S. Passport, • E-mail: [email protected]. when a passport holder independently Form DS–0011. This affidavit is • Mail (paper, disk, or CD-ROM reports it lost or stolen. Passport required to be included with a passport submissions): Andrina Agnew, U.S. applicants can either download the form application only when the applicant for Department of State, CA/PPT/FO/FC, from the Internet or pick one up at any a passport is unable to establish his or 2100 Pennsylvania Ave., NW., 3rd Passport Agency or Acceptance Facility.

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Dated: October 10, 2008. information regarding the collection DEPARTMENT OF STATE Brenda S. Sprague, listed in this notice, including requests [Delegation of Authority No. 318] Deputy Assistant Secretary for Passport for copies of the proposed information Services, Bureau of Consular Affairs, collection and supporting documents, to Delegation by the Secretary of State to Department of State. Andrina Agnew, U.S. Department of the Under Secretary for Arms Control [FR Doc. E8–24907 Filed 10–17–08; 8:45 am] State, CA/PPT/FO/FC, 2100 and International Security of BILLING CODE 4710–06–P Pennsylvania Ave, NW., 3rd Floor/ Authorities in Section 2(b)(4) of the Room 3040/SA–29, Washington, DC Export-Import Bank Act 20037, who may be reached at 202–663– DEPARTMENT OF STATE 2445 or at [email protected]. By virtue of the authority vested in me as Secretary of State, including [Public Notice: 6411] SUPPLEMENTARY INFORMATION: We are Section 1 of the State Department Basic soliciting public comments to permit Authorities Act, as amended (22 U.S.C. 60-Day Notice of Proposed Renewal the Department to: Information Collection: Form DS–0086, 2651a), I hereby delegate to the Under • Evaluate whether the proposed Statement of Non-Receipt of a Secretary for Arms Control and information collection is necessary for Passport, 1405–0146. International Security the functions the proper performance of our conferred on the Secretary of State by ACTION: Notice of request for public functions. Section 2(b)(4) of the Export-Import comments. • Evaluate the accuracy of our Bank Act. estimate of the burden of the proposed Any act, executive order, regulation, SUMMARY: The Department of State is collection, including the validity of the or procedure subject to, or affected by, seeking Office of Management and methodology and assumptions used. this delegation shall be deemed to be Budget (OMB) approval for the renewal • Enhance the quality, utility, and such act, executive order, regulation, or of an information collection described clarity of the information to be procedure as amended from time to below. The purpose of this notice is to collected. time. allow 60 days for public comment in the • Minimize the reporting burden on Notwithstanding this delegation of Federal Register preceding submission authority, the Secretary or the Deputy to OMB. We are conducting this process those who are to respond, including the use of automated collection techniques Secretary may at any time exercise any in accordance with the Paperwork authority or function delegated by this Reduction Act of 1995. or other forms of technology. • delegation of authority. Title of Information Collection: Abstract of Proposed Collection This delegation of authority shall be Statement of Non-Receipt of a Passport. published in the Federal Register. • OMB Control Number: 1405–0146. The Statement of Non-Receipt of a • Type of Request: Revision of a Passport, Form DS–0086, is used by Dated: October 1, 2008. Currently Approved Collection. Consular Officers, Passport Specialists, Condoleezza A. Rice, • Originating Office: Bureau of and Acceptance Agents to collect Secretary of State, Department of State. Consular Affairs, CA/PPT/FO/FC. information for the purpose of issuing a [FR Doc. E8–24914 Filed 10–17–08; 8:45 am] • Form Number: DS–0086. second passport to customers who have BILLING CODE 4710–10–P • Respondents: Individuals or not received the passport for which they Households. originally applied. • Estimated Number of Respondents: The information is used by the DEPARTMENT OF STATE 60,000. Department of State to ensure that no • Estimated Number of Responses: [Delegation of Authority No. 317] person shall bear more than one valid or 60,000. potentially valid U.S. passport book and Delegation by the Secretary of State to • Average Hours per Response: 5 U.S. passport card at any one time, the Under Secretary for Arms Control minutes. • Total Estimated Burden: 5,000 except as authorized by the Department, and International Security of hours. and also aids in combating passport Authorities in Section 821 of the • Frequency: On occasion. fraud and misuse. Nuclear Proliferation Prevention Act • Obligation To Respond: Required to Methodology By virtue of the authority vested in Obtain or Retain a Benefit. me as Secretary of State, including Passport applicants who do not DATES: The Department will accept Section 1 of the State Department Basic receive their passports are required to comments from the public up to 60 days Authorities Act, as amended (22 U.S.C. complete a Statement of Non-Receipt of from October 20, 2008. 2651a) and the Presidential a Passport, Form DS–0086. Passport ADDRESSES: You may submit comments Memorandum for the Secretary of State, applicants can either download the form by any of the following methods: the Secretary of the Treasury, the from the Internet or pick one up from • E-mail: [email protected]. Secretary of Defense, the Secretary of an Acceptance Facility/Passport • Mail (paper, disk, or CD–ROM Commerce, and the Director of National Agency. The form must be completed, submissions): Andrina Agnew, U.S. Intelligence—Assignment of Certain signed, and then submitted to the Department of State, CA/PPT/FO/FC, Functions Relating to Procurement Acceptance Facility/Passport Agency for 2100 Pennsylvania Ave, NW., 3rd Floor/ Sanctions on Persons Engaging in passport re-issuance. Room 3040/SA–29, Washington, DC Export Activities that Contribute to 20037. Dated: October 10, 2008. Proliferation, dated March 5, 2007 (72 You must include the DS form Brenda S. Sprague, FR 11283), I hereby delegate to the number (if applicable), information Deputy Assistant Secretary for Passport Under Secretary for Arms Control and collection title, and OMB control Services, Bureau of Consular Affairs, International Security, the functions number in any correspondence. Department of State. conferred on the Secretary of State by FOR FURTHER INFORMATION CONTACT: [FR Doc. E8–24908 Filed 10–17–08; 8:45 am] said Presidential Memorandum under Direct requests for additional BILLING CODE 4710–06–P section 821 of the Nuclear Proliferation

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Prevention Act, FY 94–95 Foreign effective on December 20, 2007, beyond project eligibility provisions and Relations Authorization Act (Pub. L. the time for submitting comments on identifies the types of projects that are 103–236) (the Act), relating to sanctions the interim guidance. eligible for CMAQ support. It also for nuclear proliferation. FOR FURTHER INFORMATION CONTACT: provides information on how CMAQ All functions assigned under the Act Mike Koontz, Office of Natural and apportionments are calculated and the shall be exercised utilizing the Human Environment, (202) 366–2076, geographic areas where CMAQ funds appropriate interagency groups prior to [email protected]; or Diane Liff can be used; discusses the project exercising the sanction authority (202) 366–6203, [email protected], or selection process and requirements for delegated herein. Harold Aikens (202) 366–1373, analyzing emissions benefits from Any act, executive order, regulation, [email protected], Office of the potential projects as part of the selection or procedure subject to, or affected by, Chief Counsel, Federal Highway process; and examines Federal, State this delegation shall be deemed to be Administration, 1200 New Jersey and Metropolitan Planning Organization such act, executive order, regulation, or Avenue, SE., Washington, DC 20590. (MPO) program administration procedure as amended from time to Office hours are from 7:45 a.m. to 4:15 responsibilities. time. p.m., e.t., Monday through Friday, This final guidance includes Notwithstanding this delegation of except Federal holidays. discussions and directions on new or authority, the Secretary or the Deputy highlighted CMAQ topics under SUPPLEMENTARY INFORMATION: Secretary may at any time exercise any SAFETEA–LU and, in particular, authority or function delegated by this Electronic Access emphasizes diesel engine retrofits and delegation of authority. Internet users may access this cost-effective congestion mitigation This delegation of authority shall be document, the notice of interim activities as priorities for CMAQ published in the Federal Register. guidance and request for comment, and expenditures. It also provides relative Dated: October 1, 2008. all comments received by the U.S. cost-effectiveness data on various Condoleezza A. Rice, Department of Transportation (DOT) by eligible project types to help inform the CMAQ project selection process. Secretary of State, Department of State. using the Federal eRulemaking portal at [FR Doc. E8–24916 Filed 10–17–08; 8:45 am] http://www.regulations.gov. It is Discussion of Comments Received to BILLING CODE 4710–10–P available 24 hours each day, 365 days the Notice of Interim Guidance each year. Electronic submission and The FHWA published its Notice of retrieval help and guidelines are Interim Guidance and Request for available under the help section of the DEPARTMENT OF TRANSPORTATION Comment on December 19, 2006 (71 FR Web site. 76038). In response to the notice, the An electronic copy of this document Federal Highway Administration FHWA received 42 comments. Of the 42 may also be downloaded by accessing comments, 11 were submitted by or on [FHWA Docket No. FHWA–2006–26383] the Office of the Federal Register’s home behalf of transportation advocacy page at: http://www.archives.gov or the Publication of Final Guidance on the organizations, 9 were submitted by Government Printing Office’s Web page Congestion Mitigation and Air Quality metropolitan planning organizations at http://www.gpoaccess.gov/nara. Improvement (CMAQ) Program (MPO) or other similar regional An electronic version of the final governmental entities, 5 were received AGENCY: Federal Highway CMAQ guidance may be downloaded from State departments of transportation Administration (FHWA), DOT. from the FHWA Web page at: http:// or other State government agencies, 3 www.fhwa.dot.gov/environment/ ACTION: Notice of publication of final were received from county cmaq06gm.htm. It is also attached for guidance. governments, 2 from counsel reference below. representing transportation SUMMARY: The purpose of this notice is Background to announce the publication of CMAQ organizations, 2 from environmental final guidance. Sections 1101, 1103 and The CMAQ program was created by advocacy organizations, and 1 comment 1808 of the Safe, Accountable, Flexible, the Intermodal Surface Transportation was submitted by a private citizen. It Efficient Transportation Equity Act: A Efficiency Act of 1991 (ISTEA) (Pub. L. should be noted that the total does not Legacy for Users (SAFETEA–LU) (Pub. 102–240, Dec. 18, 1991) and continued sum to the 42 docket entries due to L. 109–59, Aug. 10, 2005) 1 amend the under the Transportation Equity Act for duplication associated with edited and Congestion Mitigation and Air Quality the 21st Century (TEA–21) (Pub. L. 105– resent documents and separate Improvement (CMAQ) Program, and 178; Oct. 1998). Through 2005, the submittals for attachments. The FHWA authorize $8.6 billion to support the program supported nearly 16,000 considered each of these comments in CMAQ program in 2005–2009. The transportation projects across the adopting this final guidance. Following interim guidance went into effect country. In SAFETEA–LU, the most is a section-by-section analysis of the October 31, 2006; however, we solicited recent authorization of the Federal-aid docketed comments and the FHWA’s comments on the interim guidance on highway program, Congress amended conclusions regarding issues raised: December 19, 2006, at 71 FR 76038. the CMAQ program and authorized Section-by-Section Discussion of This notice describes and discusses funding to support the CMAQ program Comments comments we received and announces in 2005–2009 (see sections 1101, 1103 the publication of the final CMAQ and 1808 of SAFETEA–LU). More than Section IV. Priority for Use of CMAQ guidance. The notice also describes the $8.6 billion are authorized over the 5- Funds effect of a provision of the Energy year program (2005–2009), with annual A total of 14 comments were received Independence and Security Act of 2007, authorization amounts increasing each about the guidance’s treatment of Pub. L. 110–140 that affects CMAQ year during this period. project prioritization and selection for funding. This provision became This final guidance updates and cost-effective CMAQ funded programs replaces previous program guidance and activities, specifically diesel 1 23 U.S.C. 149 (2005). issued in 1999. It focuses primarily on retrofits. The only comment received

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regarding the priority of congestion continuing to recognize that proposed in a September 19, 2007, letter relief projects (see comment below successfully improving air quality and to the Office of Management and Budget regarding the eligibility of single- reducing congestion depends on a (OMB) by Senators Carper, Clinton, occupant vehicle (SOV) capacity diverse mixture of activities and efforts. Isakson, and Voinovich, which we have increases) pertained to items that are We believe that the existing language placed in the docket. The letter requests beyond the scope of this guidance. in the interim guidance provides that additional language be inserted in Respondents suggested a spectrum of adequate emphasis related to project the final guidance to create a possibilities. Some, noting the flexibility priority and selection for use of CMAQ presumption requiring diesel retrofit of CMAQ as its biggest asset, funds. Therefore, no changes were made projects to be funded first, and, further, recommended leaving the priority and to this section. Our decision not to requiring States and MPOs funding selection to the local decision makers. change this section was based on our other than diesel retrofit projects to In particular, many State and local understanding of Congress’ intent in publish written justification for their agencies, and organizations representing this matter. Section 1808 of SAFETEA– selections. In addition, the letter State and local governments, pointed to LU includes a ‘‘savings clause’’ that requests revision of the definition of the SAFETEA–LU savings language, states, ‘‘[t]his paragraph is not intended ‘‘cost effective’’ in the final guidance, by which states that the CMAQ program is to disturb the existing authorities and limiting that term to the cost per ton of not intended to disturb the existing roles of governmental agencies in emission reductions by pollutant. authorities and roles of governmental making final project selections.’’ 2 The In our view, the requested changes agencies in making final project savings clause demonstrates, in our would remove or greatly diminish the selections. view, Congress’ understanding that authority of States and MPOs to make Others suggested making cost many factors go into program funding final project selections. The plain effectiveness the sole reason to support decisions, and Congress’ intention that language of the ‘‘savings clause,’’ as well project or program selection and sought the statutory diesel retrofit priority not as that provision’s legislative history, mandatory set-asides for diesel retrofit disturb existing authorities and roles in discussed above, do not support projects. Some diesel retrofit project selection. Thus, under the final additional limits on project selection or manufacturers and related trade and air guidance, State and local authorities the imposition of a publication burden quality associations proposed new remain responsible for the selection and on States or MPOs. Adoption of the language for the guidance that would prioritization of projects under the requested presumption would also limit more strongly emphasize the priority of CMAQ program that will best reduce air the variety of eligible CMAQ projects diesel retrofits. One group favoring pollution and congestion, while, at the and programs permitted under the priority of diesel retrofits proposed a same time, fit the local fiscal, statute (see 23 U.S.C. 149(c)). In number of ways that this could be done transportation, environment, and addition, the requested revision of the including: (1) Developing a point system political landscape. definition of ‘‘cost-effective’’ would for the award of CMAQ dollars to give Our conclusion regarding this diminish the authority of States and (a higher) weight to retrofit projects; (2) legislative intent is further supported by MPOs to select a mix of project and utilizing an overmatch where the State the relevant legislative history. In program activities that best reflect the share of funding would be greater for addressing funding priority, the air quality and congestion challenges in diesel retrofit projects, thereby Conference Report on H.R. 3 their local areas. necessitating less than a 20 percent (SAFETEA–LU) states: ‘‘The priority is The final guidance does, however, match by project sponsors; (3) further clarified to ensure that encourage States and local agencies to dedicating a specific percentage of total governmental agencies retain existing take the priority language into account CMAQ funds to diesel retrofits; and (4) authorities and roles in making final when selecting and funding their CMAQ requiring States and MPOs, in situations project selections. These clarifications projects. One good example of how this where projects other than diesel retrofits to the original Senate priority language might be undertaken is an outreach are selected, to justify their rationale for are intended to retain needed flexibility effort initiated by Oregon’s Rogue Valley choosing other less cost effective in utilizing CMAQ funds while Metropolitan Planning Organization projects. providing States with direction to focus (RVMPO), which sent a letter to 10 There were other comments on cost-effectiveness as an important private companies within the Rogue proposing variations on the theme of consideration in distributing program Valley community to initiate a putting more emphasis on the benefits funds.’’ H.R. Rep. No. 109–203, at conversation about using Federal of diesel retrofit projects through a ratio H7462 (July 28, 2005)(Conf. Rep.). In funding for diesel retrofits by inviting or weighting formula, such as those addition, a subsequent section of the them to a diesel retrofit workshop to used in California’s Carl Moyer grant Conference Report, Priorities Provision discuss how retrofits could benefit the program. Some commenters also in Diesel Retrofit, further expands on various companies and improve air suggested that since some diesel retrofit this point: ‘‘Conferees expect that other quality in the area. projects reduced both particulate matter priorities can still be pursued with (PM) and ozone precursors, the final applicable funds. Priority is not absolute Section V. Annual Apportionments of guidance should make these projects and exclusive. That is one reason why CMAQ Funds to States eligible for CMAQ funding in ozone the paragraph also includes language Two comments called for a set-aside nonattainment and maintenance areas establishing that this paragraph is not of CMAQ funds for diesel retrofit as well. intended to disturb existing authorities projects. Citing the importance of diesel In general, the comments received and roles in project selections.’’ H.R. retrofit projects, the respondents supported a balanced approach by Rep. No. 109–203, at H7467 (July 28, contended that a predetermined amount maintaining the guidance language that 2005) (Conf. Rep.). or percentage share of CMAQ promotes the idea that cost effectiveness The statutory language and legislative apportionments should be reserved evaluations should guide the program history also support the FHWA’s solely for diesel retrofits. prioritization and project selection, with decision declining to make changes The FHWA has neither the statutory a special focus on diesel retrofit and authority nor the administrative congestion reduction, while also 2 23 U.S.C. 149(f)(3)(B) (2005). discretion to establish or enforce such a

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set-aside. Funding under the CMAQ example, in outlining our treatment of One respondent called for the program is apportioned to the States CMAQ eligibility for the former one- establishment of CMAQ eligibility for after a limited number of takedowns hour areas where eight-hour ozone transit station rehabilitations. The (e.g., 2 percent for State Planning and designations were not forthcoming, we commenter discussed the benefits of Research (SP&R)). Other than this very discussed the areas separately and, in projects that seek to renovate or restore limited amount of CMAQ set-aside, the turn, used the two distinct terms. We transit stations and terminals in need of vast majority of remaining apportioned have retained this discussion in the repair, citing the corresponding increase funds is available to the States at their final guidance. As for the treatment of in ridership that may ensue. discretion, provided general project the two terms for particulate matter— The FHWA and Federal Transit eligibility requirements are met. PM–2.5 and PM–10—the interim Administration (FTA) have a Two comments were received guidance did not make a distinction longstanding policy on transit station supporting a change in the final between the two levels of the pollutant, projects. Those endeavors that involve guidance that would allow a 100 and we will retain use of the singular existing facilities must expand the percent Federal share for diesel projects. term ‘‘particulate matter’’ or ‘‘PM’’ in carrying capacity of the station or Respondents asserted that the additional the final guidance. terminal. This policy—written into the Federal-aid funding would serve as a One respondent made a case for interim guidance—has been retained in financial incentive to generate greater modifying CMAQ geographic eligibility the final guidance. The agencies are interest in diesel retrofit projects. As to include attainment areas, based on aware of the capital-intensive nature of with the creation of new set-asides, the the need to provide resources to areas so these projects. No project that attempts FHWA lacked statutory authority to they might avoid slipping into to rebuild, renovate, or restore a major increase the Federal match on CMAQ nonattainment status (i.e., use of the transit hub will be completed projects when these comments were program as a preventive measure). inexpensively. However, given the air received. However, subsequent While the commenter provides a quality goals of the CMAQ program, it enactment of the Energy Independence compelling argument for application of is unlikely that restoration projects that and Security Act of 2007, Public Law CMAQ funding in attainment areas, and leave system capacity at status quo 110–140 (December 20, 2007) authorizes while there may be merit to such an levels will have any impact on network an increase in the Federal share of extension of the program, the statute is ridership and, hence, on clean air CMAQ funding up to 100 percent, at the clear that CMAQ funding is restricted to efforts. Both FHWA and FTA addressed discretion of the State for CMAQ areas that are or were designated as this question in a January 2003 projects obligated in FY 2008 and FY nonattainment for ozone, carbon memorandum that elaborated on this 2009.3 monoxide, or particulate matter (23 policy.4 U.S.C. 149(a)). FHWA does not have the There were a few comments calling Section VI. Geographic Areas That Are authority to make such a discretionary for the clarification of eligibility for Eligible To Use CMAQ Funds modification to fundamental, statutory projects that targeted reductions in Several respondents requested eligibility requirements. Only those pollutant precursors. We have reviewed clarification of the definition of ozone areas attaining the National Ambient Air the interim guidance with such nonattainment areas, largely preferring Quality Standards (NAAQS) that are clarification in mind and have retained removal of the qualifiers ‘‘one-hour’’ identified by Environmental Protection the language as written in the final and ‘‘eight-hour’’ ozone. These Agency (EPA) as maintenance areas or guidance. The eligibility of ozone and comments were submitted in apparent required to file maintenance plan particulate matter precursors is anticipation of possible changes arising documentation are eligible for CMAQ discussed in a number of areas of the from recent court decisions that may or investments. guidance document, most notably in may not reinstate some of the Section VII. Project Eligibility Provisions part A.3., entitled ‘‘Emission requirements attributed to former one- Reduction,’’ in Section VII. ‘‘Project hour ozone areas. In view of the A number of respondents commented Eligibility.’’ uncertainties surrounding this matter, on the continuation of the 3-year limit One respondent called for the further we have decided not to revise the on using CMAQ funds for operating extension of eligibility guidelines to definitions at this time. costs, with responses both favoring the include capacity expansions for SOV In addition, similar comments were limit and calling for an end to this highways. The commenter asserted that submitted in favor of consolidating the aspect of program eligibility. the congestion mitigation aspects of the The 3-year limit on operating costs references to the two particulate matter CMAQ program provide a rationale for has been retained in the final guidance. terms. We have consolidated the terms such an expansion of eligibility. Use of The FHWA discussed our preference for in a few sections of the final guidance CMAQ funding for the provision of a limitation on using CMAQ funds for to avoid confusion between the two additional capacity available to SOVs is operational support in the interim qualifiers for designated ozone prohibited by 23 U.S.C. 149(b). This guidance. We continue to look upon nonattainment areas. However, we have prohibition was part of the Intermodal long-term, limitless, operational support done so only where the qualifier was Surface Transportation Efficiency Act of as a practice contrary to 23 U.S.C. 116, not necessary, i.e., where the plain term 1991, which created the CMAQ program which places the responsibility for ‘‘ozone nonattainment area’’ was and has been carried forward with each maintenance of transportation resources sufficient. References to both one-hour reauthorization of transportation on States. Ending the 3-year limit for and eight-hour ozone in other sections legislation, including SAFETEA–LU. operational support would be akin to were included by necessity. For The sole exception allowed is for shifting this maintenance role to the construction of high-occupancy vehicle 3 Federal level. The focus of the CMAQ ‘‘CMAQ PROJECTS—The Federal share payable (HOV) facilities available to SOVs only on account of a project or program carried out program is to provide new or expanded at off-peak times of the day. The under section 149 with funds obligated in fiscal transportation resources that provide an year 2008 or 2009, or both, shall be not less than 80 percent and, at the discretion of the State, may air quality benefit, not the long-term 4 This memorandum is available at: http:// be up to 100 percent of the cost thereof.’’ Sec. continuation and support of existing www.fhwa.dot.gov/environment/cmaqpgs/ 1131(2). services. stationm.htm.

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exception includes HOV facilities that Consequently, the States exercise and VOCs. One commenter are available to High Occupancy Toll sovereignty in their project selection for commissioned a study indicating that (HOT), low-emission, and other vehicles all the Federal-aid highway program reducing a ton of NOX has health as authorized under 23 U.S.C. 166. categories, including the CMAQ benefits 14.2 times that of VOCs, while Several commenters objected to the program. Under 23 U.S.C. 145, ‘‘Federal- reducing a ton of PM has health benefits interim guidance’s change in policy State Relationship,’’ the States’ role in of 117.5 times that of VOCs. disallowing operating assistance for the determining transportation projects is State and local agencies and national initial 3 years of operations of major protected. Given this statutory support associations commented that the data transit capital investment projects (New for the States’ position, the FHWA has presented in Appendix 4 were based on Starts). As stated in the interim no authority to amend the guidance a dated study of project types that does guidance, this change was made to be with such a restriction, although we not account for improvements in consistent with FTA’s requirement that have retained our policy discouraging emission reduction technologies and project sponsors establish long-term, the use of CMAQ support for projects that includes assumptions that may alter dedicated sources of non-Federal funds which may compete directly with the cost-effectiveness of projects. for operating and maintaining New private business services. Specifically, commenters suggested that Starts. The point was made in the the data for inspection and maintenance comments, however, that short-term, Section IX. Program Administration programs were no longer accurate. initial funding with CMAQ has never Several responders commented that Commenters also noted that cost- been a substitute for the development of the burden of preparing and submitting effectiveness is only one of the selection long-term, non-Federal sources of the annual reports required for the criteria and should not be the sole basis funding, but rather has served as an CMAQ program is understated and that for decision-making. important supplementary funding the schedule for submittals is somewhat Since the release of the interim source, while farebox revenue is aggressive. guidance, the EPA has released its own growing at the start of system We have outlined the burden or staff analysis of the cost-effectiveness of operations. FTA acknowledges that time requirements for the annual diesel engine retrofit technologies and transit agencies that used CMAQ funds reports, as required under the other mobile source emission reduction for this purpose in the past also went on Paperwork Reduction Act, 44 U.S.C. activities as required by the SAFETEA– to establish sources of non-Federal 3501–3520, in a separate Federal LU. As such, we have removed funding to support operations for the Register notice, 71 FR 67420 (November Appendix 4 from our guidance and have long term. 21, 2006), and in our associated report instead provided an electronic link to Another reason for the proposed to OMB. In view of the comments and the EPA guidance document providing change in policy was to return to the further study of the issue, the FHWA this research (http://www.epa.gov/otaq/ original intent in providing operating has increased the time estimates for stateresources/policy/general/ assistance under the CMAQ program. annual reports from the initial 6 hours 420b07006.pdf). We intend to rely on The original intent was to fund for filing the report to a more the EPA data in determining cost demonstrations of new types of service representative 125 hours, which better effectiveness. that could be easily terminated if they reflects the necessary workload Authority: Sections 1101, 1103 and 1808 of were not successful; it was not to associated with compiling the Pub. L. 109–59) provide operating assistance for information for State DOTs, Issued on: October 7, 2008. permanent infrastructure projects. metropolitan planning organizations, Thomas J. Madison, Jr., However, a review of the types of and other units of government. The final projects that have received operating guidance incorporates this change. Federal Highway Administrator. assistance in the recent past indicated a As to the schedule for submittals, we The Congestion Mitigation and Air number of projects that are not have extended the due date from Quality (CMAQ) Improvement Program ‘‘demonstrations.’’ Some were major February to March. This change was Under the Safe, Accountable, Flexible, transit capital investment projects that included in the interim guidance; we Efficient Transportation Equity Act: A did not involve Federal New Starts will retain the extension in the final Legacy for Users; Final Program funding. The review showed there is a guidance. Guidance history of supporting permanent infrastructure as well as the Appendix 4: Comparative Cost- October, 2008 demonstration-type projects that were Effectiveness of Potential CMAQ- The guidance contained in this originally envisioned. In light of this, it Funded Retrofits document is intended to be nonbinding, would be inconsistent for such non- There were 16 comments on the except insofar as it references existing Federal projects to continue receiving treatment of cost-effectiveness data, statutory requirements. In this guidance CMAQ operating assistance while the specifically as they appeared in document, the use of mandatory same type of project, if federally funded, Appendix 4 of the interim guidance. language such as ‘‘shall,’’ ‘‘must,’’ was denied CMAQ operating assistance. Diesel retrofits manufacturers and ‘‘required,’’ or ‘‘requirement’’ is only Therefore, FTA has decided to return to related trade and air quality associations used to reflect statutory or regulatory the previous policy of allowing made several recommendations for mandates and does not create new operating assistance for New Starts. The changes to Appendix 4. First, they requirements. This guidance does not wording in the interim guidance suggested weighing the cost- create or confer any rights for or on any disallowing operating assistance for effectiveness data for activities that person and should not be construed as New Start projects has been removed. reduce PM with those that reduce NOX rules of general applicability and legal One respondent suggested language and volatile organic compounds (VOCs) effect. that would prohibit States from using so that the data can be directly CMAQ funds to compete with services compared to each other. Second, they I. Introduction provided by the private sector. The suggested that we include the diesel The CMAQ program was created Federal-aid highway program is a retrofit technologies in Figures A and D under the Intermodal Surface federally assisted State program. along with the projects that reduce NOX Transportation Efficiency Act (ISTEA)

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of 1991, continued under the Transportation. The strategic plans for III. Authorization Levels Under the Transportation Equity Act for the 21st the Department of Transportation and SAFETEA–LU Century (TEA–21), and reauthorized by for the Federal Highway Administration A. Authorization Levels the Safe, Accountable, Flexible, both include performance measures Efficient Transportation Equity Act: A specifically focused on reducing air Table 1 shows the SAFETEA–LU Legacy for Users (SAFETEA–LU).5 Over pollution from transportation facilities. CMAQ authorization levels by fiscal year. The CMAQ funds will be $8.6 billion is authorized over the five- The CMAQ program provides funding apportioned to States each year based year program (2005–2009), with annual for a broad array of tools to accomplish authorization amounts increasing each upon the apportionment factors these goals. By choosing to fund a discussed in Section V. year during this period. Through 2005, CMAQ project, a State or local the program has supported nearly government can improve air quality and TABLE 1—SAFETEA–LU CMAQ 16,000 transportation projects across the make progress towards achieving country. AUTHORIZATION LEVELS attainment status and ensuring This guidance replaces the April 1999 version and provides information on the compliance with the transportation Fiscal year authorization Amount authorized CMAQ program, including: conformity provisions of the Clean Air • Act.7 Authorization levels and FY 2005 ...... $1,667,255,304 apportionment factors specific to the Reducing congestion is also a key FY 2006 ...... $1,694,101,866 SAFETEA–LU. objective of the Department of FY 2007 ...... $1,721,380,718 • Flexibility and transferability Transportation, and one that has gained FY 2008 ...... $1,749,098,821 provisions available to States. increasing attention in the past several FY 2009 ...... $1,777,263,247 • Geographic area eligibility for years. The cost of congestion, which CMAQ funds. negatively affects the U.S. economy, B. Equity Bonus • Project eligibility information. quality of life, and air quality, has risen Similar to the minimum guarantee • Project selection processes. dramatically in the last 25 years despite under the TEA–21, the Equity Bonus in • Program administration. record levels of transportation SAFETEA–LU provides additional Appendices 1–3 provide updated investment. Some economists estimate funding beyond the authorized levels so statutory language relating to the CMAQ that the overall cost of congestion to the that each State receives a minimum program. Appendix 4 provides U.S. economy approaches $200 billion a percentage of its gas tax receipts back in supplemental information on diesel 10 year. As a result, in May 2006, the the form of Federal-aid funds. retrofit projects. Information on the current annual Department of Transportation C. Transferability of CMAQ Funds announced its National Strategy to apportionment to each State and an Since transportation and Reduce Congestion on America’s electronic version of this guidance are environmental program priorities available at http://www.fhwa.dot.gov/ Transportation Network (the Congestion fluctuate, States may choose to transfer environment/cmaqpgs/index.htm. Initiative) that aims to meaningfully a limited portion of their CMAQ This guidance document has been reduce the economic and social costs of apportionment to the following Federal- prepared by the Air Quality Team in congestion on our nation’s highways aid highway programs: Surface FHWA’s Office of Environment and and in other transportation facilities.8 Transportation Program (STP), National Planning. This strategy can be found at: http:// Highway System (NHS), Highway isddc.dot.gov/OLPFiles/OST/ Bridge Program (HBP), Interstate II. Program Purpose 012988.pdf. Maintenance (IM), Recreational Trails The purpose of the CMAQ program is Since congestion relief projects also Program (RTP), and the Highway Safety to fund transportation projects or reduce idling, the negative emissions Improvement Program (HSIP). programs that will contribute to impacts of ‘‘stop and go’’ driving, and States may transfer CMAQ funds attainment or maintenance of the the number of vehicles on the road, they according to the following provision: An national ambient air quality standards have a corollary benefit of improving air amount not to exceed 50 percent of the (NAAQS) for ozone, carbon monoxide quantity of the State’s annual quality. Based on their emissions (CO), and particulate matter (PM). apportionment less the amount the State reductions, these types of projects, The CMAQ program supports two would have received if the CMAQ including investments in improved important goals of the Department of program had been authorized at Transportation: Improving air quality system pricing and operations, are $1,350,000,000.11 For example, if the 9 and relieving congestion. While these eligible for CMAQ funding. The annual national apportionment is $1.75 goals are not new elements of the Department believes State and local billion and a State receives $10 million program, they are strengthened in a new governments can simultaneously reduce more than it would have received if the provision added to the CMAQ statute by the costly impacts of congestion while national apportionment had been $1.35 SAFETEA–LU, establishing priority also improving air quality. billion, the State can transfer up to $5 consideration for cost-effective emission million to other programs. Any transfer reduction and congestion mitigation 7 42 U.S.C. 7506 Section 176(c). of such funds must still be obligated in activities when using CMAQ funding.6 8 Speaking before the National Retail Federation’s nonattainment and maintenance areas.12 annual conference on May 16, 2006, in Washington, The amount of transferable funds will Reducing pollution and other adverse DC, former U.S. Transportation Secretary Norman environmental effects of transportation Mineta unveiled a new plan to reduce congestion differ each year and by State, depending projects and transportation system plaguing America’s roads, rails, and airports. The on overall authorization levels. Each inefficiency have been long-standing National Strategy to Reduce Congestion on year, the FHWA will inform States how America’s Transportation Network includes a much, if any, CMAQ funding is objectives of the Department of number of initiatives designed to reduce transportation congestion. The transcript of these 5 Public Law 109–59, 119 Stat. 1144 (Aug. 10, remarks is available at the following URL: http:// 10 23 U.S.C. 105 (SAFETEA–LU § 1104). 2005). www.dot.gov/affairs/minetasp051606.htm. 11 23 U.S.C. 126(c). 6 23 U.S.C. 149(f)(3) (SAFETEA–LU § 1808(d)). 9 23 U.S.C. 149(b)(5). 12 23 U.S.C. 149(b).

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transferable and will track this and a SIB is that a Section 129 loan loans or grants to idle reduction movement of CMAQ funds. States also usually provides financing to an projects. More information on the DOT’s may transfer CMAQ funds to other individual project and funding a SIB innovative finance program is available Federal agencies. The SAFETEA–LU capitalizes a financial entity that can at http://www.fhwa.dot.gov/ provides additional flexibility to assist multiple projects. The two loan innovativefinance/. complete such transfers when the programs have similar maximum receiving Federal agency has entered allowable terms established by Federal IV. Priority for Use of CMAQ Funds into an agreement with the State to law: The SAFETEA–LU directs States and undertake an eligible Federal-aid • Both public and private entities are MPOs to give priority to two categories project.13 These opportunities apply to eligible to be project sponsors. of funding. First, priority is for diesel projects that have met all CMAQ • Repayments begin within 5 years of retrofits, particularly where necessary to eligibility requirements prior to the project completion. facilitate contract compliance, and other transfer. • Maximum loan term is 30 years cost-effective emission reduction after project authorization (Section 129) activities, taking into consideration air D. CMAQ and Innovative Finance: State or 30 years after first repayment (SIB). quality and health effects. Second, Infrastructure Bank (SIB) and Section • Interest rate may be set by State, at priority is to be given to cost-effective 129 Loans or below market rates. • congestion mitigation activities that Projects with dedicated repayment Loans can only be made up to 80 provide air quality benefits.16 Other streams, i.e., a consistent source of percent of eligible project costs (Section projects also may be cost-effective. The revenue, may be financed with loans 129). For SIBs, loans can be made up to priority provisions in the statute apply through DOT’s innovative finance 80 percent of eligible project costs to the portion of CMAQ funds derived program as an alternative or supplement (although the non-Federal share can be from the application of sections to CMAQ funding. reduced under 23 U.S.C. 120(b) if the 104(b)(2)(B) and 104(b)(2)(C) of State Infrastructure Banks are State- sliding scale rate is used). SAFETEA–LU, i.e., the CMAQ These innovative loan programs can directed programs that allow Federal- apportionment formula. They do not increase the efficiency of States’ aid funds to be lent to sponsors of apply to areas where CMAQ funding has transportation investments and eligible Federal-aid projects (any project been derived from the minimum significantly leverage Federal resources under Title 23 or capital projects, as apportionment provisions. by attracting non-Federal public and defined by 49 U.S.C. 5302, are eligible). In accordance with the SAFETEA– private investment, and provide greater SIBs may be capitalized with several LU,17 the EPA has released a guidance flexibility to the States by allowing Federal-aid highway apportionments document, The Cost Effectiveness of other types of project assistance in including the National Highway System Heavy-Duty Diesel Retrofits and Other addition to grant assistance. This type of Program, the Surface Transportation Mobile Source Emission Reduction financing is important for new Program, the Highway Bridge Program, Projects and Programs, which provides technologies or start-up businesses that the Interstate Maintenance Program, and cost-effectiveness data on diesel engine may have difficulty finding financing in the Equity Bonus program. (Note: retrofit technologies and other CMAQ- the private capital markets. In addition CMAQ may not be used to capitalize a eligible activities. It is available online to SIBs and section 129 loans, the SIB, but SIB funds may be used to at: http://www.epa.gov/cleandiesel/ FHWA also administers the finance CMAQ projects). State funds publications.htm. also may be used to capitalize the SIB. Transportation Infrastructure Finance In addition, the Transportation The State then receives repayments over and Innovation Act (TIFIA) program, Research Board published The time that can be directed toward other which provides Federal credit Congestion Mitigation and Air Quality transportation projects. For example, assistance to large-scale projects greater Improvement Program: Assessing 10 New York State was successful in than $50 million. Years of Experience in 2002, providing The following example illustrates utilizing its SIB to implement two truck a number of effectiveness measures for how a Section 129 loan could work to stop electrification projects along the both emissions and travel activity. construct an idle-reduction facility on New York State Thruway. Though SAFETEA–LU establishes an Interstate right-of-way. A private Section 129 loans (23 U.S.C. 129(a)(7)) these CMAQ investment priorities, it party intends to build a stationary idle- allow States to use Federal-aid highway also retains State and local agencies’ reduction facility, and seeks grant apportionments to make loans for authority in project selection. The law funding for it from the State DOT. The projects with dedicated revenue streams maintains the existing roles and idle reduction facility will eventually (this is only applicable to highway, authorities of public agencies, and earn a profit by charging user fees, but bridge, tunnel, ferry boat, and ferry substantial shifts in local procedures are since the capital costs are high, the terminal projects). A Section 129 loan not required by the SAFETEA–LU.18 private party needs assistance with may be used to construct a truck stop However, project selection should financing the initial construction. electrification facility if the facility is reflect the positive cost-effectiveness Instead of providing an outright grant, located on the Interstate right-of-way.14 relationships highlighted in the EPA the State could offer a loan of Federal- The SAFETEA–LU establishes a new guidance. State and local transportation aid funds with flexible repayment SIB program under which all States are programs that implement a broad array terms. If the facility required $1 million authorized to enter into cooperative of these cost-effective measures may for initial construction, the State could agreements with the U.S. DOT to record a more rapid rate of progress make a loan at 5 percent over 15 years. establish infrastructure revolving-funds toward their clean air goals, since many The State could accelerate the payments eligible to be capitalized with Federal of these endeavors generate immediate 15 if the facility was more successful than transportation funds. The key benefits. Local procedures that elevate difference between a Section 129 loan expected, and delay repayment if the facility failed to meet revenue targets. 16 23 U.S.C. 149(f)(3) (SAFETEA–LU § 1808(d)). 13 23 U.S.C. 132(a) (SAFETEA–LU § 1119). The State could also build in credits for 17 23 U.S.C. 149(f)(2)(c) (SAFETEA–LU § 1808(d)). 14 23 U.S.C. 111(d) (SAFETEA–LU § 1412). additional emissions reductions, 18 23 U.S.C. 149(f)(3)(B) (SAFETEA–LU 15 23 U.S.C. 190 (SAFETEA–LU § 1602). providing incentives for additional § 1808(d)).

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the importance of these efforts in project air quality programs using (see Appendix 2). The population of selection—and rate them accordingly— complementary measures that provide each county (based upon Census Bureau may accelerate the drive to air quality alternatives to single-occupant vehicle data) that is in a nonattainment or attainment.19 (SOV) travel while improving traffic maintenance area for ozone and/or CO In addition to the SAFETEA–LU flow through operational strategies and is weighted by multiplying by the priority on cost-effectiveness, Section balancing supply and demand through appropriate factor listed in Table 2. PM 176(c) of the Clean Air Act 20 requires pricing, parking management, nonattainment and maintenance areas that the FHWA and FTA ensure timely regulatory, or other means. and former 1-hour areas, except those implementation of transportation few 1-hour maintenance areas control measures (TCMs) in applicable V. Annual Apportionments of CMAQ participating in Early Action Compacts, State Implementation Plans (SIPs). Funds to States are not included in the apportionments. These and other CMAQ-eligible projects A. CMAQ Apportionments Note: CMAQ apportionments and CMAQ identified in approved SIPs should eligibility are two different things. Some receive funding priority. Federal CMAQ funds are apportioned areas in which CMAQ funds may be spent The FHWA recommends that States annually to each State according to the are not included in the apportionments (see and MPOs develop their transportation/ severity of its ozone and CO problem Section VI.).

TABLE 2—SAFETEA–LU CMAQ APPORTIONMENT FACTORS 21

Pollutant Classification at the time of annual apportionment Weighting factor

Ozone (O3) or (CO) ...... Maintenance (these areas had to be previously eligible as nonattainment 1.0 areas—See Section VI.). Ozone ...... Subpart 1 (‘‘Basic’’) ...... 1.0 Ozone ...... Marginal ...... 1.0 Ozone ...... Moderate ...... 1.1 Ozone ...... Serious ...... 1.2 Ozone ...... Severe ...... 1.3 Ozone ...... Extreme ...... 1.4 CO ...... Nonattainment ...... 1.0 Ozone and CO ...... Ozone nonattainment or maintenance and CO nonattainment or mainte- 1.2 × O3 factor nance. All States—minimum apportionment ...... 1/2 of 1 percent total annual apportionment of CMAQ funds ...... N/A 21 23 U.S.C. § 104(b)(2) (SAFETEA–LU 1103(d)).

CMAQ apportionments are calculated must be used for projects in funds in any ozone, CO, or PM based on the nonattainment and nonattainment/maintenance areas.23 nonattainment or maintenance area. A maintenance areas that exist at the time States with weighted populations State is under no statutory obligation to of apportionment. Generally, yielding at least some apportioned value allocate CMAQ funds in the same way apportionments are calculated prior to but less than one-half percent of the they are apportioned. States are the beginning of each fiscal year. authorized funds receive both encouraged to consult affected MPOs to mandatory and flexible funds to reach determine regional and local CMAQ B. Area Designations: Attainment vs. the minimum apportionment. For priorities and work with them to Nonattainment example, if a State’s weighted allocate funds accordingly. Each State is guaranteed a minimum population yields two tenths of one D. Federal Share and State/Local Match apportionment of one-half percent of the percent of the authorized funds, it Requirements would receive two tenths of one percent year’s total program funding, regardless The Federal share for most CMAQ of whether the State has any of the national funds as mandatory funds, and three tenths of one percent projects, generally, has been 80 percent. nonattainment or maintenance areas. as flexible funds. Thus, 40 percent of However, under the Energy These flexible funds or minimum the State’s funds would be mandatory Independence and Security Act of apportionment funds can be used 24 and 60 percent would be flexible. 2007, the Federal share for eligible anywhere in the State for projects For States with no areas applicable to CMAQ projects carried out with funds eligible for either CMAQ or the STP.22 the apportionment table, their minimum obligated in fiscal year 2008 or 2009, or The FHWA Budget Division identifies apportionment, one-half percent, is all both, may be, at the discretion of the annual apportionments of CMAQ funds flexible funding. The FHWA reports the State, up to 100 percent of the cost of as either mandatory or flexible. All breakdown of mandatory and flexible the project or program. funding is considered mandatory for funds by State in its fiscal year VI. Geographic Areas That Are Eligible States with weighted populations apportionment tables. To Use CMAQ Funds yielding one-half percent or more of the C. Apportionments and State Allocation authorized funds (based on the table A. Eligible Areas above). Annual CMAQ funding Notwithstanding the statutory formula CMAQ funds may be invested in all apportioned through the application of for determining the apportionment ozone, CO, and PM nonattainment and sections 104(b)(2)(B) and 104(b)(2)(C) amount, the State may use its CMAQ maintenance areas. Funds also may be

19 U.S. House, Safe, Accountable, Flexible, (109 H. Rpt. 203), Section 1938, Priorities Provision 23 23 U.S.C. 149(b). Efficient Transportation Equity Act, a Legacy for in Diesel Retrofit. 24 Pub. L. 110–140, Sect. 1131 (December 20, Users, Conference Report (to accompany H.R. 3) 20 42 U.S.C. 7506 Section 176(c)(2)(B). 2007). 22 23 U.S.C. 149(c) (SAFETEA–LU § 1808(c)).

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spent in the few remaining 1-hour ozone conformity regulations.27 In addition, and VII.D.10 Carpooling and maintenance areas (these counties also all CMAQ-funded projects need to Vanpooling. have Early Action Compacts in place), complete National Environmental 3. Emission Reduction since the 1-hour standard remains in Policy Act (NEPA) requirements and effect for these areas. meet basic eligibility requirements for Air quality improvement is defined by Funds also may be used for projects funding under titles 23 and 49 of the several distinct terms in 23 U.S.C. § 149. in proximity to nonattainment and United States Code. These terms include contribution to maintenance areas if the benefits will be The following should guide CMAQ attainment, reduction in pollution, air realized primarily within the eligibility decisions: quality benefits, and others. For nonattainment or maintenance area. The purposes of this guidance, the FHWA delineation of an area considered ‘‘in 1. Capital Investment uses emission reduction to represent proximity’’ should be discussed with CMAQ funds may be used to establish this group of terms. CMAQ-invested the FHWA and FTA field offices and new or expanded transportation projects projects or programs must reduce CO, elevated to headquarters if necessary. or programs that reduce emissions, ozone precursor (NOX and VOCs), PM, or PM precursor (e.g., NOX) emissions B. Maintenance Areas including capital investments in transportation infrastructure, congestion from transportation; these reductions CMAQ funds may be invested in relief efforts, diesel engine retrofits, or must contribute to the area’s overall maintenance areas that have approved other capital projects. clean air strategy and can be maintenance plans under CAA section demonstrated by the assessment that is 175A. In States with ozone or CO 2. Operating Assistance required under this guidance.29 States and MPOs also may consider the maintenance areas but no There are several general conditions ancillary benefits of eligible projects, nonattainment areas, mandatory CMAQ that must be met for operating including greenhouse gas reductions, funds must be used in the maintenance assistance to be eligible under the 25 congestion relief, safety, or other areas. CMAQ program: elements, when programming CMAQ C. Maintenance Plan Requirement, a. Operating assistance is limited to funds, though such benefits do not SAFETEA–LU new transit services, intermodal alone establish eligibility. CMAQ funds may be invested in facilities, and travel demand 4. Planning and Project Development former 1-hour ozone areas that were not management strategies (including traffic designated under the 8-hour standard operation centers); and the incremental Activities in support of eligible but where the 1-hour standard has been cost of expanding existing transit projects also may be appropriate for revoked. Since these areas are required services. CMAQ investments. Studies that are to file maintenance plans, they are b. In using CMAQ funds for operating part of the project development pipeline considered eligible for CMAQ funding assistance, the intent is to help start up (e.g., preliminary engineering) under under provisions of the SAFETEA– viable new transportation services that NEPA are eligible for CMAQ support, as LU.26 can demonstrate air quality benefits and are FTA’s Alternatives Analyses. eventually cover their costs as much as General studies that fall outside specific D. Flexible Funds in PM Areas possible. Other funding sources should project development do not qualify for While States may use flexible CMAQ supplement and ultimately replace CMAQ funding. Examples of such funding anywhere and for any CMAQ- CMAQ funds for operating assistance, as efforts include major investment or STP-eligible project (see V.B. on these projects no longer represent studies, commuter preference studies, minimum apportionment), the FHWA additional, net air quality benefits but modal market polls or surveys, transit encourages States and MPOs to evaluate have become part of the baseline master plans, and others. These the cost-effectiveness and benefits to transportation network. activities are eligible for Federal public health of targeting flexible c. Operating assistance includes all planning funds. CMAQ funding to projects that reduce costs of providing new transportation B. Projects Ineligible for CMAQ Funding PM. Examples of such projects include services, including, but not limited to, implementing a diesel retrofit or idle labor, fuel, administrative costs, and The following projects are ineligible reduction program, constructing freight/ maintenance. for CMAQ funding: 1. Light-duty vehicle scrappage intermodal transfer facilities, traffic d. When CMAQ funds are used for programs.30 signalization, or ITS projects that reduce operating assistance, non-Federal share 2. Projects that add new capacity for congestion, paving dirt roads, and requirements still apply. purchasing street sweeping equipment. SOVs are ineligible for CMAQ funding e. With the focus on start-up costs unless construction is limited to high- VII. Project Eligibility Provisions only, operating assistance under the occupancy vehicle (HOV) lanes.31 This CMAQ program is limited to three years. A. Project Eligibility: General Conditions HOV lane eligibility includes the full The provisions in 23 U.S.C. 116 place range of HOV facility uses authorized To be eligible for CMAQ funds, a responsibilities for maintenance on under 23 U.S.C. 166, such as high- project must be included in the MPO’s States.28 Since facility maintenance is occupancy toll (HOT) and low-emission current transportation plan and TIP (or akin to operations, three years of CMAQ vehicles. the current STIP in areas without an assistance provides adequate incentive 3. Routine maintenance and MPO). In nonattainment and and flexibility while not creating a rehabilitation projects (e.g., maintenance areas, the project also must pattern of excessive or even perpetual replacement-in-kind of track or other meet the conformity provisions support. Exceptions are listed below equipment, reconstruction of bridges, contained in section 176(c) of the Clean under VII.D.7 Travel Demand stations, and other facilities, and Air Act and the transportation Management, VII.D.8 Public Education, 29 23 U.S.C. 149(b). 25 23 U.S.C. 149(b). 27 40 CFR Parts 51 and 93 30 23 U.S.C. 149(b). 26 23 U.S.C. 149(b) (SAFETEA–LU § 1808(a)). 28 23 U.S.C. § 116. 31 23 U.S.C. 149(b).

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repaving or repairing roads) are include costs to fund an obligation occupancy vehicle programs or transit ineligible for CMAQ funding as they imposed on private sector or non-profit service; only maintain existing levels of highway entities under the CAA or any other vii. Programs to limit or restrict and transit service, and therefore do not Federal law.35 However, if the private or vehicle use in downtown areas or other reduce emissions.32 Other funding non-profit entity is clearly exceeding its areas of emission concentration sources, such as STP and FTA’s Section obligations under Federal law, CMAQ particularly during periods of peak use; 5307 program, are available for such funds may be used for that incremental viii. Programs for the provision of all activities. portion of the project. forms of high-occupancy, shared-ride 4. Administrative costs of the CMAQ Eligible non-monetary activities that services; program may not be defrayed with satisfy the non-Federal match ix. Programs to limit portions of road program funds, e.g., support for a State’s requirements under the partnership surfaces or certain sections of the ‘‘CMAQ Project Management Office’’ is provisions include the following: metropolitan area to the use of non- not eligible. • Ownership or operation of land, motorized vehicles or pedestrian use, 5. Projects that do not meet the facilities, or other physical assets both as to time and place; specific eligibility requirements of titles • Construction or project x. Programs for secure bicycle storage 23 and 49 U.S.C. are ineligible for management facilities and other facilities, including • CMAQ funds. Other forms of participation bicycle lanes, for the convenience and 6. Stand-alone projects to purchase approved by the U.S. DOT. protection of bicyclists, in both public fuel. One exception is listed below in Sharing of total project costs, both and private areas; Section VII.D.3.33 capital and operating, is a critical xi. Programs to control extended element of a successful public-private idling of vehicles; C. Public-Private Partnerships (PPPs) venture, particularly if the private entity xii. Reducing emissions from extreme In a PPP, a private or non-profit is expected to realize profits as part of cold-start conditions; entity’s resources replace or supplement the joint venture. State and local xiii. Employer-sponsored programs to State or local funds and possibly a officials are urged to consider a full permit flexible work schedules; portion of the Federal-aid in a selected range of cost-sharing options when xiv. Programs and ordinances to project. The PPP elements of the developing a PPP, including a larger facilitate non-automobile travel, program have been refined over the last State/local match. For detailed provision and utilization of mass transit, two transportation reauthorizations, and information on cost principles beyond and to generally reduce the need for these partnerships have become a the scope of this guidance, please SOV travel, as part of transportation critical part of CMAQ.34 consult OMB Circular A–87, which planning and development efforts of a Partnerships should have a legally- focuses on determining allowable costs locality, including programs and binding written agreement in place for State, local, and tribal governments; ordinances applicable to new shopping between the public agency and the and 49 CFR part 18, which provides centers, special events, and other private or non-profit entity before a direction on administering Federal centers of vehicle activity; and CMAQ-funded project may be grants to State and local governments. xv. Programs for new construction and major reconstructions of paths, implemented. These agreements should D. Eligible Projects and Programs be developed under relevant Federal tracks, or areas solely for the use by Eligibility information is provided and State law and should specify the pedestrian or other non-motorized below. Not all possible requests for intended use for CMAQ funding; the means of transportation when CMAQ funding are covered—this roles and responsibilities of the economically feasible and in the public section provides examples of activities participating entities; and how the interest. eligible for CMAQ funds. disposition of land, facilities, and 2. Extreme Low-Temperature Cold Start equipment will be carried out should 1. Transportation Control Measures Programs the original terms of the agreement be (TCMs) Projects intended to reduce emissions altered (e.g., due to insolvency, change Most of the TCMs included in Section from extreme cold-start conditions are in ownership, or other changes in the 108 of the CAA, listed below, are eligible for CMAQ funding. Such structure of the PPP). eligible for CMAQ funding. One CAA projects include retrofitting vehicles and Public funds should not be invested TCM, programs to encourage removal of where a strong public benefit cannot be fleets with water and oil heaters and pre-1980 light-duty vehicles, is installing electrical outlets and demonstrated. Consequently, CMAQ specifically excluded from CMAQ funds should be devoted to PPPs that equipment in publicly-owned garages or eligibility.36 fleet storage facilities (See Section VII.C. benefit the general public by clearly i. Programs for improved public reducing emissions, not for financing for a possible expansion to privately- transit; owned equipment and facilities). marginal projects. Consistent with the ii. Restriction of certain roads or lanes planning and project selection to, or construction of such roads or 3. Alternative Fuels and Vehicles provisions of the Federal-aid highway lanes for use by, passenger buses or Fuel program, the FHWA considers it HOV; essential that all interested parties have iii. Employer-based transportation With the exception of Missouri, Iowa, full, open, and timely access to the management plans, including Minnesota, Wisconsin, Illinois, Indiana, project selection process. incentives; and Ohio, fuel costs are not an eligible There are several other statutory iv. Trip-reduction ordinances; expense as a stand-alone project.37 Only restrictions and special provisions on v. Traffic flow improvement programs these seven States may use CMAQ funds the use of CMAQ funds in PPPs. Eligible that reduce emissions; to purchase the alternative fuels defined costs under this section should not vi. Fringe and transportation corridor in section 301 of the 1992 Energy Policy parking facilities serving multiple- Act (natural gas, ethanol, etc.) or 32 23 U.S.C. 116. biodiesel, assuming such projects meet 33 23 U.S.C. 149(k). 35 23 U.S.C. 149(e)(5). 34 23 U.S.C. 149(e). 36 23 U.S.C. 149(b)(1)(A)(i). 37 SAFETEA–LU, § 1808(k).

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other applicable eligibility requirements provided they demonstrate net vehicles using HOV lanes, such as the noted in Section VII.B. above. emissions benefits. ‘‘FasTrak’’ Lanes on I–15 in San Diego and the recently converted I–394 in Establishing publicly-owned fueling b. Intelligent Transportation Systems facilities and other infrastructure Minneapolis in which prices vary needed to fuel alternative-fuel vehicles Intelligent Transportation Systems dynamically every two minutes based is an eligible expense, unless privately- (ITS) projects, such as traffic signal on traffic conditions owned fueling stations are in place and synchronization projects, traffic • New variably tolled express lanes reasonably accessible. Additionally, management projects, and traveler on existing toll-free facilities, such as CMAQ funds may support converting a information systems, can be effective in the ‘‘91 Express Lanes’’ on State Route private fueling facility to support relieving traffic congestion, enhancing 91 in Orange County, CA alternative fuels through a public- transit bus performance, and improving • Variable tolls on existing or new private partnership agreement (See air quality. The following have the toll roads, such as on the bridges and Section VII.C.). greatest potential for improving air tunnels operated by the Port Authority quality: of New York and New Jersey Non-Transit Vehicles • Regional multi-modal traveler • Network-wide or cordon pricing, CMAQ funds may be used to purchase information systems. such as implemented in Stockholm, • publicly-owned alternative fuel Traffic signal control systems. London and Singapore • • vehicles, including passenger vehicles, Freeway management systems. Usage-based vehicle pricing, such • Electronic toll-collection systems. as mileage-based vehicle taxation being refuse trucks, street cleaners, and others. • Costs associated with converting fleets Transit management systems. explored by the State of Oregon, or pay- • Incident management programs. to run on alternative fuels are also per-mile car insurance A lengthier discussion of the benefits eligible. When private vehicles are As with any eligible CMAQ project, associated with various operational purchased, only the cost difference value pricing should generate an improvements can be found at: http:// between the alternative fuel vehicles emissions reduction. Marketing and ops.fhwa.dot.gov/program_areas/ and comparable conventional fuel outreach efforts to expand and programareas.htm. vehicles is eligible. Such vehicles encourage the use of eligible pricing should be fueled by one of the c. Value/Congestion Pricing measures may be funded indefinitely. alternative fuels identified in section Eligible expenses for reimbursement As part of its Congestion Initiative include, but are not limited to: Tolling 301 of the 1992 Energy Policy Act or referenced above, the Department biodiesel. Eligible projects also include infrastructure, such as transponders and broadly promotes highway congestion other electronic toll or fare payment alternatives to diesel engines and pricing and is also seeking an area-wide vehicles. systems; small roadway modifications to demonstration of the effectiveness of enable tolling, marketing, public Hybrid Vehicles congestion pricing (along with other outreach, and support services, such as elements). Congestion pricing is a Although not defined by the Energy transit in a newly tolled corridor. market-based mechanism that allows Innovative pricing approaches yet to be Policy Act of 1992 as alternative fuel tolls to rise and fall depending on vehicles, certain hybrid vehicles that deployed in the U.S. also may be available capacity and demand. It has supported through the Value Pricing have lower emissions rates than their gained increasing attention and non-hybrid counterparts may be eligible Pilot Program. A more complete popularity in recent years following discussion of projects currently for CMAQ investment. Hybrid passenger several highly successful facility vehicles must meet EPA’s low emissions underway in the U.S. can be found at: demonstrations in the U.S. and several _ and energy efficiency requirements for http://ops.fhwa.dot.gov/tolling pricing/ network wide demonstrations abroad. _ certification under the HOV exception value pricing/index.htm. Tolls can be charged electronically, Operating expenses for traffic flow provisions of the SAFETEA–LU to be thereby eliminating the need for 38 improvements are eligible for CMAQ eligible for CMAQ funding. tollbooths. In addition to the benefits Projects involving heavier vehicles, funding for three years if they can be associated with reducing congestion, shown to produce air quality benefits, if including refuse haulers and delivery revenue is generated that can be used to trucks, also may be appropriate for the expenses are incurred from new or pay for a wide range of transportation additional services, and if previous program support. Eligibility should be improvements, including Title 23— based on a comparison of the emissions funding mechanisms, such as fares or eligible transit services in the newly fees for services, are not displaced. projections of these larger candidate tolled corridor. vehicles and other comparable models. Projects or programs that involve the Parking pricing can include time-of- purchase of integrated, interoperable 4. Congestion Reduction & Traffic Flow day parking charges that reflect emergency communications equipment Improvements congested conditions. These strategies are eligible for CMAQ funding.39 should be designed to influence trip- Traffic flow improvements may making behavior and may include 5. Transit Improvements include the following: charges for using a parking facility at Many transit projects are eligible for a. Traditional Improvements peak periods, or a range of employer- CMAQ funds. The general guideline for based parking cash-out policies that determining eligibility is whether the Traditional traffic flow improvements, provide financial incentives to avoid such as the construction of roundabouts, project increases capacity and would parking or driving alone. Parking likely result in an increase in transit HOV lanes, left-turn or other managed pricing integrated with other pricing lanes, are eligible for CMAQ funding ridership and a potential reduction in strategies is encouraged. congestion. As with other types of Pricing encompasses a variety of CMAQ projects, there should be a 38 23 U.S.C. 166(e) (SAFETEA–LU § 1121(a)). The market-based approaches such as: quantified estimate of the project’s required rulemaking developed by EPA has been • published in the Federal Register at 72 FR 29102, HOT lanes, or High Occupancy Toll http://www.epa.gov/fedrgstr/EPA-AIR/2007/May/ lanes, on which variable tolls are 39 23 U.S.C. 149(b)(6) (SAFETEA–LU Day-24/a9821.htm. charged to drivers of low-occupancy § 1808(b)(4)).

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emissions benefits accompanying the Section VII.D.3 for statutory exceptions • Establishing and funding State proposal. for certain states regarding the purchase bicycle/pedestrian coordinator positions The FTA administers most transit of alternative fuel with CMAQ funds. for promoting and facilitating projects. Once the FTA determines a nonmotorized transportation modes d. Operating Assistance project eligible, CMAQ funds will be through public education, safety transferred from the FHWA to the FTA, Operating assistance to introduce new programs, etc. (Limited to one full-time and the project will be administered transit service or expand existing position per State) 41 according to the requirements of the service is eligible. It may be a new type FTA’s Urbanized Area Formula Grant of service, service to a new geographic 7. Travel Demand Management Program.40 Certain types of transit area, or an expansion of existing service Travel demand management (TDM) projects for which the FTA lacks providing additional hours of service or encompasses a diverse set of activities statutory authority, such as diesel reduced headways. For a service that focuses on physical assets and retrofit equipment for public school bus expansion, only the operating costs of services that provide real-time fleets, are administered by the FHWA. the new increment of service are information on network performance eligible. Eligible operating costs include and support better decision-making for a. Facilities labor, fuel, maintenance, and related travelers choosing modes, times, routes, New transit facilities (e.g., lines, expenses. Operating assistance may be and locations. Such projects can help stations, terminals, transfer facilities) CMAQ-funded for a maximum of three ease congestion and reduce SOV use— are eligible if they are associated with years. The intent is to support the contributing to mobility, while new or enhanced mass transit service. demonstration of new services that may enhancing air quality and saving energy Routine maintenance or rehabilitation of prove successful enough to sustain with resources. Similar to ITS and Value existing facilities is not eligible, as it other funding sources, and to free up Pricing, today’s TDM programs seek to does not reduce emissions. However, CMAQ funds to generate new air quality optimize the performance of local and rehabilitation of a facility may be benefits. regional transportation networks. The eligible if the vast majority of the project e. Transit Fare Subsidies following activities are eligible if they involves physical improvements that are explicitly aimed at reducing SOV will increase capacity. In such cases CMAQ funds may be used to travel and associated emissions: there should be supporting subsidize regular transit fares in an • Fringe parking. documentation showing an increase in effort to prevent the NAAQS from being • Traveler information services. transit ridership that is more than exceeded, but only under the following • Shuttle services. minimal. If the vast majority of the conditions: The reduced or free fare • Guaranteed ride home programs. project involves capacity enhancements, should be part of a comprehensive area- • Market research and planning in other elements involving refurbishment wide program to prevent the NAAQS support of TDM implementation. and replacement-in-kind also are from being exceeded. ‘‘Ozone Action’’ • Carpools, vanpools (see item 10 eligible. programs vary in scope around the below). country, but they generally include • Traffic calming measures. b. Vehicles and Equipment actions that individuals and employers • Parking pricing. New transit vehicles (bus, rail, or van) can take and they are aimed at all major • Variable road pricing. to expand the fleet or replace existing sources of air pollution, not just • Telecommuting. vehicles are eligible. Transit agencies transportation. The subsidized fare • Employer-based commuter choice are encouraged to purchase vehicles that should be available to the general public programs. are most cost-effective in reducing and may not be limited to specific CMAQ funds may support capital emissions. Diesel engine retrofits, such groups. It may only be offered during expenses and up to three years of as replacement engines and exhaust periods of elevated pollution when the operating assistance to administer and after-treatment devices, are eligible if threat of exceeding the NAAQS is manage new or expanded TDM certified or verified by the EPA or greatest; it is not intended for the entire programs. California Air Resources Board (CARB). high-ozone season. Finally, the fare Marketing and outreach efforts to Routine preventive maintenance for subsidy proposal should demonstrate expand use of TDM measures may be vehicles is not eligible as it only returns that the responsible local agencies will funded indefinitely, but only if they are the vehicles to baseline conditions. combine the reduced or free fare with a broken out as distinct line items (see Besides diesel engine retrofits, other robust marketing program to inform Section VII.D.8. below). transit equipment may be eligible if it SOV drivers of other transportation Eligible telecommuting activities represents a major system-wide upgrade options. Because the fare subsidy is not include planning, preparing technical that will significantly improve speed or strictly a form of operating assistance, it and feasibility studies, and training. reliability of transit service, such as would not be subject to the three-year Construction of telecommuting centers advanced signal and communications limit. and computer and office equipment systems. purchases should not be supported with 6. Bicycle and Pedestrian Facilities and CMAQ funds. c. Fuel Programs 8. Public Education and Outreach Fuel, whether conventional or Bicycle and pedestrian facilities and Activities alternative fuel, is an eligible expense programs are included as a TCM in only as part of a project providing section 108(f)(1)(A) of the CAA. The The goal of CMAQ-funded public operating assistance for new or following are eligible projects: education and outreach activities is to expanded transit service under the • Constructing bicycle and pedestrian educate the public, community leaders, CMAQ program. This includes fuels and facilities (paths, bike racks, support and potential project sponsors about fuel additives considered diesel retrofit facilities, etc.) that are not exclusively connections among trip making and technologies by the EPA or CARB. See recreational and reduce vehicle trips; transportation mode choices, traffic • Non-construction outreach related 40 49 U.S.C. 5307. to safe bicycle use; 41 23 U.S.C. 217(d).

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congestion, and air quality. Public 9. Transportation Management Successful primary projects could education and outreach can help Associations include new diesel engine technology or communities reduce emissions and Transportation Management retrofits of vehicles or engines. congestion by inducing drivers to Associations (TMAs) are groups of Eligibility is not confined to highway change their transportation choices. projects, but also applies to nonroad citizens, firms, or employers that 45 More important, an informed public is organize to address the transportation mobile freight projects, such as rail. likely to support larger regional See Section VII.D.12. below on diesel issues in their immediate locale by measures necessary to reduce retrofit technology—examples of promoting rideshare programs, transit, congestion and meet CAA requirements. primary freight projects—and for shuttles, or other measures. TMAs can A wide range of public education and information on EPA’s guidance and play a useful role in brokering outreach activities is eligible for CMAQ model rule for emissions reduction transportation services to private funding, including activities that credit in the SIP and conformity employers. promote new or existing transportation processes. services, developing messages and CMAQ funds may be used to establish Secondary projects reduce emissions advertising materials (including market TMAs provided that they reduce through shifts in or additions to research, focus groups, and creative), emissions. Eligible expenses include infrastructure. Support for an placing messages and materials, TMA start-up costs and up to three intermodal container transfer facility evaluating message and material years of operating assistance. Eligibility may be eligible if the project dissemination and public awareness, of specific TMA activities is addressed demonstrates reduced diesel engine technical assistance, programs that throughout this guidance. emissions when balancing the drop in promote the Tax Code provision related 10. Carpooling and Vanpooling truck VMT against the increase in to commute benefits,42 transit ‘‘store’’ locomotive or other non-highway operations, and any other activities that Eligible activities can be divided into activity. Intermodal facilities, such as help forward less-polluting two types of costs: Marketing (which inland transshipment ports or near/on- transportation options. applies to both carpools and vanpools) dock rail, may generate substantial Using CMAQ funds, communities and vehicle (which applies to vanpools emissions reductions through the have disseminated many transportation only). a. Carpool/vanpool marketing decrease in miles traveled for pre-1986 and air quality public education covers existing, expanded, and new heavy-duty diesel trucks. This messages, including maintain your activities designed to increase the use of secondary, indirect effect on truck vehicle; curb SOV travel by trip carpools and vanpools, and includes traffic and the ensuing drop in diesel chaining, telecommuting and using purchase and use of computerized emissions help demonstrate eligibility. alternate modes; fuel properly; observe matching software and outreach to The transportation function of these speed limits; don’t idle your vehicle for employers. Guaranteed ride home freight/intermodal projects should be long durations; eliminate ‘‘jack-rabbit’’ programs are also considered marketing emphasized. Marginal projects that starts and stops, and others. tools. Marketing costs may be funded support freight operations in a very The It All Adds Up to Cleaner Air indefinitely. b. Vanpool vehicle capital tangential manner are not eligible for public education messages and costs include purchasing or leasing vans CMAQ funding. Warehouse handling materials (regarding vehicle for use in vanpools. Eligible operating equipment, for example, is not an maintenance, proper fueling, trip costs, limited to three years, include eligible investment of program funds. chaining, and alternate modes) have empty-seat subsidies, maintenance, However, equipment that provides a been successful in raising awareness, insurance, administration, and other transportation function or directly garnering funds and in-kind support, related expenses. supports this function is eligible, such and building coalitions of diverse CMAQ funds should not be used to as railyard switch locomotives or groups across the country. These buy or lease vans that would directly shunters. commercial-quality materials, which compete with or impede private sector were developed in response to requests initiatives. States and MPOs should 12. Diesel Engine Retrofits & Other by State and local transportation and air consult with the private sector prior to Advanced Truck Technologies agencies, are free and communities are using CMAQ funds to purchase vans, The SAFETEA–LU places a new encouraged to use and build on them. and if private firms have definite plans emphasis on diesel engine retrofits and More information is available at http:// to provide adequate vanpool service, the various types of projects that fall www.italladdsup.gov/. CMAQ funds should not be used to under this broad category.46 These Long-term public education and supplant that service. efforts are defined as vehicle outreach can be effective in raising Carpooling and vanpooling activities replacement, repowering (replacing an awareness that can lead to changes in may be funded with up to 100% federal engine with a cleaner diesel engine, travel behavior and ongoing emissions funding, with certain limitations.43 alternative fuels, etc.), rebuilding an reductions; therefore, these activities 11. Freight/Intermodal engine, or other technologies may be funded indefinitely. determined by the EPA as appropriate Projects and programs targeting for reducing emissions from diesel 42 Section 132(f) of the Internal Revenue Code freight capital costs—rolling stock or engines.47 This latter point, highlighting allows employers to pay their employees, as of ground infrastructure—are eligible November 5, 2007, up to $115 per month for transit developing technologies, establishes a and vanpool expenses and up to $215 per month provided that air quality benefits can be degree of flexibility and a need for for qualified parking. 26 U.S.C. 132(f). Each of these demonstrated.44 Freight projects that periodic adjustment in the definition by benefits is subject to annual increases based on reduce emissions fall generally into two changes to the Consumer Price Index. 26 U.S.C. the EPA. The legislation defines retrofit 1(f)(3). Alternately, employers may allow categories: Primary efforts that target projects as applicable to both on-road employees to use their pre-tax income to purchase emissions directly or secondary projects motor vehicles and nonroad these commuter benefits. Employers may also that reduce net emissions. provide a combination of these employer-paid and 45 employee paid tax-free benefits. For more 23 U.S.C. 149(b)(3). information, please visit http:// 43 23 U.S.C. 120(c). 46 23 U.S.C. 149(f)(3) (SAFETEA–LU § 1808(d)). www.commuterchoice.com/. 44 23 U.S.C. 149(b)(3). 47 23 U.S.C. 149(f)(2) (SAFETEA–LU § 1808(d)).

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construction equipment; the latter must and other efforts to promote the use of should be able to cover all operating be used in Title 23 projects based in retrofit technologies. Please see expenses from the accumulated nonattainment or maintenance areas for Appendix 4 for more detail on diesel revenue. See Section III.D for either PM or ozone.48 retrofits and the various strategies information on innovative financing There are a number of project types in available in this developing air quality opportunities available for these efforts. the diesel retrofit area for which CMAQ field. The SAFETEA–LU also permits funds are eligible. Assuming all other The FHWA acknowledges that diesel electrification or other idling reduction CMAQ criteria are met, eligible projects retrofit projects may include nonroad facilities and equipment to be include diesel engine replacement; full mobile source endeavors, which constructed or located on rights-of-way engine rebuilding and reconditioning; traditionally have been outside the of the Interstate system.52 Prior to the and purchase and installation of after- Federal-aid process. However, the enactment of the SAFETEA–LU, this treatment hardware, including SAFETEA–LU clarifies CMAQ activity was prohibited. particulate matter traps and oxidation eligibility for nonroad diesel retrofit The EPA issued guidance in January catalysts, and other technologies; and projects.51 Areas that fund these projects 2004 on methods for calculating support for heavy-duty vehicle are not required to take credit for the emissions reduction credits in SIPs and retirement programs. Project agreements projects in the transportation conformity in the transportation conformity process involving replacements of either engine process. For areas that want to take for long-haul truck idle reduction or full vehicle should include a credit, the EPA developed guidance for projects. The guidance can be found at provision for disposal of the engine estimating diesel retrofit emission http://www.epa.gov/smartway/ block and a process to verify the reductions and for applying the credit in idlingimpacts.htm. 49 the SIP and transportation conformity retirement of this equipment. 14. Training CMAQ funds may be used to purchase processes. The guidance can be found at and install emission control equipment http://www.epa.gov/otaq/ The SAFETEA–LU provides that on school buses. (Such projects, stateresources/transconf/ States and MPOs may use Federal-aid generally, should be administered by policy.htm#retrofit. funds to support training and FHWA; see VII.D.5, Transit In addition to retrofit projects, educational development for the Improvements, above.) In addition, upgrading long-haul heavy-duty diesel transportation workforce.53 The FHWA although CMAQ funds should not be trucks with advanced technologies, such encourages State and local officials to used for the initial purchase of airport as idle reduction devices, cab and trailer weigh the air quality benefits of such parking lot shuttles, funds may be used aerodynamic fixtures, and single-wide training against other cost-effective for purchase and installation of after or other efficient tires, has been strategies detailed elsewhere in this treatment hardware or repowering (with demonstrated by the EPA’s Smart Way guidance before using CMAQ funds for a hybrid drive train, for example). Transport Partnership Program to this purpose. Training funded with Refueling is not eligible as a stand- reduce NOX emissions and save fuel. CMAQ dollars should be directly related alone project, but is eligible if it is These strategies also are eligible for to implementing air quality required to support the installation of CMAQ support. Such projects funded improvements and be approved in emissions control equipment, directly by CMAQ that involve the advance by the FHWA Division office. private sector should be part of a Public- repowering, rebuilding, or other retrofits 15. Inspection/Maintenance (I/M) 50 Private Partnership, as discussed in of non-road engines. For example, Programs ultra-low sulfur diesel (ULSD) may be Section VII.C. purchased as part of a project to install 13. Idle Reduction Funds under the CMAQ program may diesel particulate filters on nonroad be used to establish either publicly or Idle reduction projects that reduce privately owned I/M facilities. Eligible construction equipment because these emissions and are located within, or in devices need ULSD to function activities include construction of proximity to and primarily benefiting, a facilities, purchase of equipment, I/M properly. Costs associated with ULSD nonattainment or maintenance area are are eligible for CMAQ funding only program development, and one-time eligible for CMAQ investment (The start-up activities, such as updating until the standards are effective and the geographic requirement mainly applies fuel becomes commonly available quality assurance software or to off-board projects, i.e., truck stop developing a mechanic training through the regional supply and electrification (TSE) efforts). However, if logistics chain, effectively rendering curriculum. The I/M program must CMAQ funding is used for an on-board 54 ULSD the only remaining diesel fuel constitute new or additional efforts, project (i.e., auxiliary power units, existing funding (including inspection distributed. Eligible costs are limited to direct fired heaters, etc.) the vehicle— the difference between standard fees) should not be displaced, and usually a heavy-duty truck—should operating expenses are eligible for three nonroad diesel fuel and ULSD. travel within, or in proximity to and In addition to equipment and years. primarily benefiting, a nonattainment or technology, outreach activities that maintenance area. Privately Owned I/M Facilities provide information exchange and There have been several instances In States that rely on privately owned technical assistance to diesel owners where operating assistance funds have and operators on retrofit options are I/M facilities, State or local I/M been requested for TSE services. CMAQ program-related administrative costs eligible investments. These projects funding to date for TSE projects has could include the actual education and may be funded under the CMAQ been limited to capital costs (i.e. program as in States that use public I/ outreach program, construction or deployment of TSE infrastructure). acquisition of appropriate buildings, M facilities. However, CMAQ support to Operating assistance for TSE projects establish I/M facilities at privately should not be funded under the CMAQ 48 owned stations, such as service stations 23 U.S.C. 149(b)(7) (SAFETEA–LU § 1808(b)). program because TSE projects generate 49 Reimbursement of costs for full-vehicle replacement may be limited to those elements that their own revenue stream and therefore 52 23 U.S.C. 111(d) (SAFETEA–LU § 1412). lead to emission reductions. 53 23 U.S.C. 504(e) (SAFETEA–LU § 5204(e)). 50 23 U.S.C. 149(f) (SAFETEA–LU § 1808(d)). 51 23 U.S.C. 149(b)(7) (SAFETEA–LU § 1808(b)). 54 23 U.S.C. 149(b).

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that own the equipment and conduct expected emission reduction benefits influence travel behavior, and thus air emission test-and-repair services, should be completed prior to project quality. requires a public-private partnership selection to better inform the selection 3. Analyzing Groups of Projects (See Section VII.C.). of CMAQ projects (See Below). The establishment of ‘‘portable’’ I/M In some situations, it may be more A. Air Quality Analysis programs, including remote sensing, is appropriate to examine the impacts of also eligible under the CMAQ program, 1. Quantitative Analyses comprehensive strategies to improve air provided that they are public services, Quantified emissions benefits (i.e., quality by grouping projects. For reduce emissions, and do not conflict emissions reductions) and disbenefits example, transit improvements coupled with statutory I/M requirements or EPA (i.e., emissions increases) should be with demand management to reduce regulations. included in all project proposals, except SOV use in a corridor might best be 16. Experimental Pilot Projects where it is not possible to quantify analyzed together. Other examples include linked signalization projects, State and local organizations have emissions benefits (see Qualitative Assessment, below). Benefits and transit improvements, marketing and experimented with various types of outreach programs, and ridesharing transportation services to better meet disbenefits should be included for all pollutants for which the area is in programs that affect an entire region or the travel needs of their constituents. corridor. These ‘‘experimental’’ projects may nonattainment or maintenance status show promise in reducing emissions, and should include appropriate 4. Tradeoffs but do not yet have supporting data. The precursor emissions. Benefits should be listed in a consistent fashion (i.e., kg/ As noted above, emissions benefits FHWA has supported and funded some should be calculated for all pollutants of these projects as demonstrations to day) across projects to allow accurate comparison during the project selection for which an area is in nonattainment or determine their benefits and costs. process. Net benefits from all emissions maintenance status. Some potential These experimental pilots are not sources involved should be included in projects may lead to benefits for one intended to bypass the definition of the analysis. For example, in analyzing pollutant and increased emissions for basic project eligibility but seek to better a commuter rail project, net benefits another, especially when the balance define the projects’ future role in would include emissions reductions involves precursors such as NOX and strategies to reduce emissions. from the auto trips avoided, and VOC. States and MPOs should consult For a project or program to qualify as with relevant air agencies to weigh the an experimental pilot, it should be emissions increases tied to locomotive operation. net benefits of the project. defined as a transportation project and State and local transportation and air be expected to reduce emissions by IX. Program Administration quality agencies conduct CMAQ-project decreasing vehicle miles traveled air quality analyses with different A. Project Selection—MPO and State (VMT), fuel consumption, congestion, or approaches, analytical capabilities, and Responsibilities by other factors. The FHWA encourages technical expertise. The SAFETEA–LU States and MPOs to creatively address CMAQ projects are selected by the encourages State DOTs and MPOs to State or the MPO. MPOs, State DOTs, their air quality problems and to consult with State and local air quality experiment with new services, and transit agencies should develop agencies about the estimated emission CMAQ project selection processes in innovative financing arrangements, reductions from CMAQ proposals.55 public-private partnerships, and accordance with the metropolitan and/ However, while no single method is or statewide planning process. The complementary approaches that use specified, every effort must be taken to transportation strategies to reach clean selection process should involve State ensure that determinations of air quality and/or local transportation and air air goals. The CMAQ program may be benefits are credible and based on a used to support a well-conceived project quality agencies. This selection process reproducible and logical analytical provides an opportunity for States and/ even if the proposal may not fully meet procedure.56 the eligibility criteria of this guidance. or local agencies to present a case for Given the untried nature of these pilot 2. Qualitative Assessment the selection of eligible projects that projects, before-and-after studies should Although quantitative analysis of air will best use CMAQ funding to meet the be completed to determine actual quality impacts is expected for almost requirements and advance the goals of project impacts on air quality as all project types, an exception will be the Clean Air Act. measured by net emissions reduced. made when it is not possible to The CMAQ project selection process These assessments should document the accurately quantify emissions benefits. should be transparent, in writing, and project’s immediate impacts in addition In these cases, qualitative assessments publicly available. The process should to long-term benefits. A schedule for based on reasoned and logical identify the agencies involved in rating completing the study should be a part determinations that the projects or proposed projects, clarify how projects of the project agreement. Completed programs will decrease emissions and are rated, and name the committee or studies should be submitted to the contribute to attainment or maintenance group responsible for making the final FHWA Division office within three of a NAAQS are acceptable. recommendation to the MPO board or years of implementation of the project Public education, marketing, and other approving body. The selection or one year after the project’s other outreach efforts, which can process should also clearly identify the completion, whichever is sooner. include advertising alternatives to SOV basis for rating projects, including travel, employer outreach, and public emissions benefits, cost effectiveness, VIII. Project Selection Process— education campaigns, may fall into this and any other ancillary selection factors General Conditions category. The primary benefit of these such as congestion relief, greenhouse Proposals for CMAQ funding should activities is enhanced communication gas reductions, safety, system include a precise description of the and outreach that is expected to preservation, access to opportunity, project, providing information on its sustainable development and freight, size, scope, location, and timetable. 55 23 U.S.C. 149(e) (SAFETEA–LU § 1808(e)). reduced SOV reliance, multi-modal Also, an assessment of the project’s 56 23 U.S.C. 149(b)(1); (SAFETEA–LU § 1808(b)). benefits, and others. At a minimum,

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projects should be identified by year jointly, every effort should be made to should report the data early enough that and proposed funding source. satisfy the concerns raised by the the Division office has time to review Close coordination is encouraged agencies’ field offices. The FHWA or and comment on the report. The report between the State and MPO to ensure FTA field offices may request additional as entered into the CMAQ Tracking that CMAQ funds are used information from the State or MPO to System should include: appropriately and to maximize their help determine eligibility. The 1. A list of projects funded under effectiveness in meeting the CAA consultation process should provide for CMAQ, in seven main project requirements. While the program of timely review and handling of CMAQ categories: projects is being developed, the State or funding proposals. The FHWA and FTA • Transit: Facilities, vehicles, and MPO should consult with FHWA and headquarters offices are available to equipment, operating assistance for new FTA to resolve any questions about consult with their field offices on transit service, etc. Include all transit eligibility. This will ensure that the eligibility determinations. projects whether administered by the projects programmed for CMAQ funding FTA or the FHWA. in the TIP are all eligible. 2. Program Administration • Shared Ride: Vanpool and carpool States and MPOs should fulfill this The FHWA Division offices and the programs and parking for shared-ride responsibility so that nonattainment and FTA Regional offices are responsible for services. maintenance areas are able to make administering the CMAQ program. In • Traffic Flow Improvements: Traffic good-faith efforts to attain and maintain general, the FHWA transfers funds to management and control services, the NAAQS by the prescribed deadlines. the FTA to administer CMAQ-funded signalization projects, ITS projects, State DOTs and MPOs should consult transit projects. In cases where the FTA intersection improvements, and with State and local air quality agencies lacks statutory authority (e.g., school construction or dedication of HOV to develop an appropriate project list of bus fleets), the FHWA will administer lanes. CMAQ programming priorities that will the transit project. For projects that • Demand Management: Trip have the greatest impact on air quality. involve transit and non-transit elements, reduction programs, transportation In developing this list, MPOs and States such as park-and-ride lots and management plans, flexible work should evaluate the cost-effectiveness of intermodal passenger projects, the schedule programs, vehicle restriction the projects and give priority administering agency is decided on a programs. consideration to those that will create case-by-case basis. All other projects are • Pedestrian/Bicycle: Bikeways, the greatest emissions reductions for the administered by the FHWA. storage facilities, promotional activities. least cost. The SAFETEA–LU calls out • I/M and other TCMs: Projects not diesel retrofits as one type of cost- 3. Tracking Mandatory/Flexible Funds covered by the above categories. effective project to which priority The FHWA Division office is • STP/CMAQ: Projects funded with consideration shall be given. The EPA responsible for tracking obligation of flexible funds. has conducted a study of the cost- mandatory and flexible CMAQ funds in For reporting purposes, obligations for effectiveness of diesel retrofits in appropriate areas (See Section V.B.). all CMAQ-eligible phases (beginning reducing PM, NOX, and VOC with the NEPA process) should be emissions.57 In addition, the National C. Annual Reports reported for the project they support. Academy of Science’s Transportation States should prepare annual reports 2. The amount of CMAQ funds Research Board has evaluated the cost- detailing how CMAQ funds have been obligated or deobligated for each project effectiveness of other CMAQ eligible invested. CMAQ reporting is not only during the Federal fiscal year. Enter projects, with a focus on NOX and HC useful for the FHWA, the FTA, and the deobligations as a negative number. (Do reductions. This study can be found at general public, but maintenance of a not include Advance Construct funds, http://www.fhwa.dot.gov/environment/ cumulative database of all CMAQ as these are not obligations of federal cmaqpgs/index.htm. Information on the projects is required by SAFETEA–LU. In CMAQ funds. Such projects should be cost-effectiveness of CMAQ-eligible addition, the annual reports will be key reported later when converted to CMAQ projects can be used as a guidepost in in developing the CMAQ Evaluation funds.) evaluating the different types of projects and Assessment, a major research effort 3. Emissions benefits (and disbenefits) under consideration by an MPO or designed to gauge the impact of the for each project developed from project- State. However, cost-effectiveness program, and also required by the level analyses. Report projected ultimately will depend on local statute.58 emissions benefits expected to occur in conditions and project specific factors CMAQ annual reports should be the first year that a project is fully that affect emission reductions and submitted through the Web-based operational, in kilograms reduced per costs. CMAQ Tracking System. More day. Benefits should be reported the information on the CMAQ system is first time a project is entered into the B. Federal Agency Responsibilities and available at: http://www.fhwa.dot.gov/ system, and only then to avoid double Coordination environment/cmaqpgs/ counting of benefits. (Because funds 1. Eligibility Determinations usersguidemail.htm. may be obligated for a project over The FTA determines the eligibility of The FHWA Division offices, State several years, an individual CMAQ transit projects, and the FHWA DOTs, and MPOs should develop a project may show up in reports for determines the eligibility of all other process for entering and approving the multiple years.) Additionally, address projects. The FHWA, FTA, and EPA data in a timely manner. This report all pollutants for which the area is in field offices should establish and should be approved by the FHWA nonattainment or maintenance status. maintain a consultation and Division office by the first day of March Do not enter emissions benefits for coordination process to review CMAQ following the end of the previous deobligations or projects funded with funding proposals as needed. While the Federal fiscal year (September 30) and flexible funds (STP/CMAQ). eligibility determination is not made cover all CMAQ obligations for that 4. Public-private partnerships and fiscal year. Thus, State DOTs and MPOs experimental pilot projects should be 57 More information is available at http:// identified in the system. Transmit www.epa.gov/cleandiesel/publications.htm. 58 23 U.S.C. 149(h) (SAFETEA–LU § 1808(f)). electronic versions of completed before-

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and-after studies for experimental pilot Protection Agency, determines that the under section 104 (b)(2) for any project in the projects to the Division offices (See project or program is likely to contribute to State that— Section VII.D.16., Experimental Pilot the attainment of a national ambient air (A) would otherwise be eligible under this quality standard, whether through reductions section as if the project were carried out in Projects). a nonattainment or maintenance area; or 5. Other required information: MPO, in vehicle miles traveled, fuel consumption, or through other factors; (B) is eligible under the surface nonattainment/maintenance area, (4) to establish or operate a traffic transportation program under section 133. project description. monitoring, management, and control facility (2) States with a nonattainment area.—If a 6. Optional information: TIP, State or program if the Secretary, after consultation State has a nonattainment area or and/or FMIS project numbers—highly with the Administrator of the Environmental maintenance area and receives funds under recommended. Other optional Protection Agency, determines that the section 104 (b)(2)(D) above the amount of information includes: Greenhouse gas facility or program, including advanced truck funds that the State would have received emission reductions, cost effectiveness, stop electrification systems, is likely to based on its nonattainment and maintenance area population under subparagraphs (B) and safety, congestion relief, and other contribute to the attainment of a national ambient air quality standard; (removed ‘‘or’’) (C) of section 104 (b)(2), the State may use ancillary benefits. (5) if the program or project improves that portion of the funds not based on its Appendix 1: 23 U.S.C. 149 traffic flow, including projects to improve nonattainment and maintenance area signalization, construct high occupancy population under subparagraphs (B) and (C) SAFETEA–LU Changes in Underlined Italics vehicle lanes, improve intersections, improve of section 104 (b)(2) for any project in the § 149. Congestion mitigation and air transportation systems management and State that— quality improvement program operations that mitigate congestion and (A) would otherwise be eligible under this (a) Establishment.—The Secretary shall improve air quality, and implement section as if the project were carried out in establish and implement a congestion intelligent transportation system strategies a nonattainment or maintenance area; or mitigation and air quality improvement and such other projects that are eligible for (B) is eligible under the surface program in accordance with this section. assistance under this section on the day transportation program under section 133. (b) Eligible Projects.—Except as provided before the date of enactment of this (d) Applicability of Planning in subsection (c), a State may obligate funds paragraph; Requirements.—Programming and apportioned to it under section 104 (b)(2) for (6) if the project or program involves the expenditure of funds for projects under this the congestion mitigation and air quality purchase of integrated, interoperable section shall be consistent with the improvement program only for a emergency communications equipment; or requirements of sections 134 and 135 of this title. transportation project or program if the (7) if the project or program is for— (e) Partnerships With Nongovernmental project or program is for an area in the State (A) the purchase of diesel retrofits that Entities.— that is or was designated as a nonattainment are— (1) In general.—Notwithstanding any other area for ozone, carbon monoxide, or (i) for motor vehicles (as defined in section provision of this title and in accordance with particulate matter under section 107(d) of the 216 of the Clean Air Act (42 U.S.C. 7550)); this subsection, a metropolitan planning Clean Air Act (42 U.S.C. 7407 (d)) and or organization, State transportation classified pursuant to section 181(a), 186(a), (ii) published in the list under subsection department, or other project sponsor may 188(a), or 188(b) of the Clean Air Act (42 (f)(2) for non-road vehicles and non-road enter into an agreement with any public, U.S.C. 7511 (a), 7512 (a), 7513 (a), or 7513 engines (as defined in section 216 of the private, or nonprofit entity to cooperatively (b)) or is or was designated as a Clean Air Act (42 U.S.C. 7550)) that are used implement any project carried out under this nonattainment area under such section 107 in construction projects that are— section. (d) after December 31, 1997, or is required to (I) located in nonattainment or (2) Forms of participation by entities.— prepare, and file with the Administrator of maintenance areas for ozone, PM10, or PM2.5 Participation by an entity under paragraph the Environmental Protection Agency, (as defined under the Clean Air Act (42 (1) may consist of— maintenance plans under the Clean Air Act U.S.C. 7401 et seq.)); and (A) Ownership or operation of any land, (42 U.S.C. 7401 et seq.) and— (II) funded, in whole or in part, under this facility, vehicle, or other physical asset (1)(A)(i) if the Secretary, after consultation title; or associated with the project; with the Administrator determines, on the (B) the conduct of outreach activities that (B) cost sharing of any project expense; basis of information published by the are designed to provide information and (C) carrying out of administration, Environmental Protection Agency pursuant technical assistance to the owners and construction management, project to section 108(f)(1)(A) of the Clean Air Act operators of diesel equipment and vehicles management, project operation, or any other (other than clause (xvi)) that the project or regarding the purchase and installation of management or operational duty associated program is likely to contribute to— diesel retrofits. with the project; and (I) The attainment of a national ambient No funds may be provided under this (D) any other form of participation air quality standard; or section for a project which will result in the approved by the Secretary. (II) the maintenance of a national ambient construction of new capacity available to (3) Allocation to entities.—A State may air quality standard in a maintenance area; single occupant vehicles unless the project allocate funds apportioned under section 104 and consists of a high occupancy vehicle facility (b)(2) to an entity described in paragraph (1). (ii) a high level of effectiveness in reducing available to single occupant vehicles only at (4) Alternative fuel projects.—In the case of air pollution, in cases of projects or programs other than peak travel times. In areas of a a project that will provide for the use of where sufficient information is available in State which are nonattainment for ozone or alternative fuels by privately owned vehicles the database established pursuant to carbon monoxide, or both, and for PM–10 or vehicle fleets, activities eligible for subsection (h) to determine the relative resulting from transportation activities, the funding under this subsection— effectiveness of such projects or programs; or, State may obligate such funds for any project (A) May include the costs of vehicle (B) in any case in which such information or program under paragraph (1) or (2) refueling infrastructure, including is not available, if the Secretary, after such without regard to any limitation of the infrastructure that would support the consultation, determines that the project or Department of Transportation relating to the development, production, and use of program is part of a program, method, or type of ambient air quality standard such emerging technologies that reduce emissions strategy described in such section project or program addresses. of air pollutants from motor vehicles, and 108(f)(1)(A); (c) States Receiving Minimum other capital investments associated with the (2) if the project or program is included in Apportionment.— project; a State implementation plan that has been (1) States without a nonattainment area.— (B) shall include only the incremental cost approved pursuant to the Clean Air Act and If a State does not have, and never has had, of an alternative fueled vehicle, as compared the project will have air quality benefits; a nonattainment area designated under the to a conventionally fueled vehicle, that (3) the Secretary, after consultation with Clean Air Act (42 U.S.C. 7401 et seq.), the would otherwise be borne by a private party; the Administrator of the Environmental State may use funds apportioned to the State and

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(C) shall apply other governmental from proposed congestion mitigation and air Appendix 2: 23 U.S.C. 104(b)(2) financial purchase contributions in the quality improvement programs and projects. Apportionment calculation of net incremental cost. (h) Evaluation and Assessment of (5) Prohibition on federal participation Projects.— (2) Congestion mitigation and air quality with respect to required activities.—A (1) In general.—The Secretary, in improvement program.— Federal participation payment under this consultation with the Administrator of the (A) In general.—For the congestion subsection may not be made to an entity to Environmental Protection Agency, shall mitigation and air quality improvement fund an obligation imposed under the Clean evaluate and assess a representative sample program, in the ratio that— Air Act (42 U.S.C. 7401 et seq.) or any other of projects funded under the congestion (i) the total of all weighted nonattainment Federal law. mitigation and air quality program to— and maintenance area populations in each (f) Cost-Effective Emission Reduction (A) determine the direct and indirect State; bears to Guidance.— impact of the projects on air quality and (ii) the total of all weighted nonattainment (1) Definitions.—In this subsection, the congestion levels; and and maintenance area populations in all following definitions apply: (B) ensure the effective implementation of States. (A) Administrator.—The term the program. (B) Calculation of weighted nonattainment ‘Administrator’ means the Administrator of (2) Database.—Using appropriate and maintenance area population.-Subject to the Environmental Protection Agency. assessments of projects funded under the subparagraph (C), for the purpose of (B) Diesel retrofit.—The term ‘diesel congestion mitigation and air quality subparagraph (A), the weighted retrofit’ means a replacement, repowering, program and results from other research, the nonattainment and maintenance area rebuilding, after treatment, or other Secretary shall maintain and disseminate a population shall be calculated by multiplying technology, as determined by the cumulative database describing the impacts the population of each area in a State that Administrator. of the projects. was a nonattainment area or maintenance (2) Emission reduction guidance.—The (3) Consideration.—The Secretary, in area as described in section 149(b) for ozone Administrator, in consultation with the consultation with the Administrator, shall or carbon monoxide by a factor of— Secretary, shall publish a list of diesel retrofit consider the recommendations and findings (i) 1.0 if, at the time of apportionment, the technologies and supporting technical of the report submitted to Congress under area is a maintenance area; information for— section 1110(e) of the Transportation Equity (ii) 1.0 if, at the time of the apportionment, (A) Diesel emission reduction technologies Act for the 21st Century (112 Stat. 144), the area is classified as a marginal ozone certified or verified by the Administrator, the including recommendations and findings nonattainment area under subpart 2 of part California Air Resources Board, or any other that would improve the operation and D of title I of the Clean Air Act (42 U.S.C. entity recognized by the Administrator for the evaluation of the congestion mitigation and 7511 et seq.); same purpose; air quality improvement program. (iii) 1.1 if, at the time of the apportionment, (B) diesel emission reduction technologies the area is classified as a moderate ozone identified by the Administrator as having an SAFETEA–LU Section 1808: Additional nonattainment area under such subpart; application and approvable test plan for Provisions (iv) 1.2 if, at the time of the apportionment, verification by the Administrator or the The following provisions were included in the area is classified as a serious ozone California Air Resources Board that is the SAFETEA-LU Section 1808. These nonattainment area under such subpart; submitted not later that 18 months of the provisions do not amend 23 U.S.C. and (v) 1.3 if, at the time of the apportionment, date of enactment of this subsection; therefore sunset when the SAFETEA-LU the area is classified as a severe ozone (C) available information regarding the expires. To avoid confusion, they are nonattainment area under such subpart; emission reduction effectiveness and cost presented here separate from the rest of the (vi) 1.4 if, at the time of the apportionment, effectiveness of technologies identified in this statutory text. the area is classified as an extreme ozone paragraph, taking into consideration air (g) Flexibility in the State of Montana.— nonattainment area under such subpart; quality and health effects. The State of Montana may use funds (vii) 1.0 if, at the time of the (3) Priority.— apportioned under section 104(b)(2) of title apportionment, the area is not a (A) In general.—States and metropolitan 23, United States Code, for the operation of nonattainment or maintenance area as planning organizations shall give priority in public transit activities that serve a described in section 149(b) for ozone, but is distributing funds received for congestion nonattainment or maintenance area. classified under subpart 3 of part D of title mitigation and air quality projects and (h) Availability of Funds for State of I of such Act (42 U.S.C. 7512 et seq.) as a programs from apportionments derived from Michigan.—The State of Michigan may use nonattainment area described in section application of sections 104(b)(2)(B) and funds apportioned under section 104(b)(2) of 149(b) for carbon monoxide; or 104(b)(2)(C) to— such title for the operation and maintenance (viii) 1.0 if, at the time of apportionment, (i) diesel retrofits, particularly where of intelligent transportation system strategies an area is designated as nonattainment for necessary to facilitate contract compliance, that serve a nonattainment or maintenance ozone under subpart 1 of part D of title I of and other cost-effective emission reduction area. such Act (42 U.S.C. 7512 et seq.). activities, taking into consideration air (i) Availability of Funds for the State of (C) Additional Adjustment for Carbon quality and health effects; and Maine.—The State of Maine may use funds Monoxide Areas.—If, in addition to being (ii) cost-effective congestion mitigation apportioned under section 104(b)(2) of such designated as a nonattainment or activities that provide air quality benefits. title to support, through September 30, 2009, maintenance are for ozone as described in (B) Savings.—This paragraph is not the operation of passenger rail service section 149(b), any county within the area intended to disturb the existing authorities between Boston, Massachusetts, and was also classified under subpart 3 of part D and roles of governmental agencies in Portland, Maine. of title I of the Clean Air Act (42 U.S.C. 7512 making final project selections. (j) Availability of Funds for Oregon.—The et seq.) as a nonattainment or maintenance (4) No effect on authority or restrictions.— State of Oregon may use funds apportioned area described in section 149(b) for carbon Nothing in this subsection modifies or on or before September 30, 2009, under monoxide, the weighted nonattainment or otherwise affects any authority or restriction section 104(b)(2) of such title to support the maintenance area population of the county, established under the Clean Air Act (42 operation of additional passenger rail service as determined under clauses (i) through (vi) U.S.C. 7401 et seq.) or any other law (other between Eugene and Portland. or clause (viii) of subparagraph (B), shall be than provisions of this title relating to (k) Availability of Funds for Certain Other further multiplied by a factor of 1.2. congestion mitigation and air quality). States.—The States of Missouri, Iowa, (D) Minimum apportionment.— (g) Interagency Consultation.—The Minnesota, Wisconsin, Illinois, Indiana, and Notwithstanding any other provision of this Secretary shall encourage States and Ohio may use funds apportioned under paragraph, each State shall receive a metropolitan planning organizations to section 104(b)(2) of such title to purchase minimum of 1⁄2 of 1 percent of the funds consult with State and local air quality alternative fuel (as defined in section 301 of apportioned under this paragraph. agencies in nonattainment and maintenance the Energy Policy Act of 1992 (42 U.S.C. (E) Determinations of population.—In areas on the estimated emission reductions 13211)) or biodiesel. determining population figures for the

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purposes of this paragraph, the Secretary Vehicle/Equipment Replacement Projects and Budget (OMB) for review and shall use the latest available annual estimates Replacement projects occur when older approval. The nature of the information prepared by the Secretary of Commerce. vehicles/equipment are replaced with cleaner collection is described as well as its Appendix 3: Considerations for Diesel vehicles/equipment before they would have expected burden. The Federal Register been removed through normal fleet turnover Retrofit Projects Notice with a 60-day comment period or attrition. The vehicle or equipment being soliciting comments on the following The term diesel retrofit includes any replaced should be scrapped or the engine collection of information was published remanufactured to a cleaner standard. For technology or system that achieves emission on August 8, 2008, and comments were reductions beyond that required by the EPA areas that want to take credit in the SIP and transportation conformity processes for these due by October 7, 2008. regulations at the time of engine certification. No comments were received. Assuming all other criteria are met, eligible projects, see the EPA’s retrofit guidance at: diesel retrofit projects include the http://www.epa.gov/otaq/stateresources/ DATES: Comments should be submitted replacement of high-emitting vehicles/ transconf/policy.htm#retrofit. on or before November 19, 2008. equipment with cleaner vehicles/equipment Generally, the replacement vehicle or FOR FURTHER INFORMATION CONTACT: (including hybrid or alternative fuel models), equipment would perform the same function Thomas Harrelson, Maritime as the vehicle or equipment that is being repowering or engine replacement, replaced (e.g., an excavator used to dig Administration, 1200 New Jersey rebuilding the engine to a cleaner standard, pipelines or utility trenches would be Avenue, SE., Washington, DC 20590. the purchase and installation of advanced replaced by an excavator that continues these Telephone: 202–366–5515; or E-Mail: emissions control technologies (such as duties). [email protected]. Copies of this particulate matter traps or oxidation In addition, the vehicle or equipment being collection also can be obtained from that catalysts) or the use of a cleaner fuel to replaced would be in good working order and office. support eligible nonroad devices. The able to perform the duties of the new vehicle SUPPLEMENTARY INFORMATION: Maritime legislation defines retrofit projects as or equipment. Removing vehicles that no applicable to both on-road motor vehicles Administration (MARAD). longer function or are at the end or their Title: Monthly Report of Ocean and nonroad construction equipment. useful life will not lead to an emissions Retrofit strategies include: reduction. Shipments Moving under Export-Import Bank Financing. Emissions Control Technologies Repower or Engine Replacement Projects OMB Control Number: 2133–0013. The EPA and the California Air Resources Engine replacement projects involve the Type of Request: Extension of Board (CARB) have retrofit technology replacement of an older, higher emitting currently approved collection. verification programs that evaluate the engine with a newer, cleaner engine. Engine Affected Public: Shippers subject to performance of advanced emissions control replacements can also be combined with Export/Import Bank financing. technologies and engine rebuild kits. CMAQ- emission control technologies. The engines Form Numbers: MA–518. funded diesel retrofit projects must use being replaced should be scrapped or Abstract: 46 U.S.C. 55304, requires retrofit technologies that are verified under remanufactured to a cleaner standard. As MARAD to monitor and enforce the the EPA’s Voluntary Diesel Retrofit Program noted above, for areas that want to take credit U.S.-flag shipping requirements relative 59 or CARB. A list of EPA-verified in the SIP and transportation conformity to the loans/guarantees extended by the technologies is available at http:// processes for these projects, see EPA’s retrofit Export-Import Bank (EXIMBANK) to www.epa.gov/otaq/retrofit/ guidance at: http://www.epa.gov/otaq/ retroverifiedlist.htm. CARB’s verification stateresources/transconf/policy.htm#retrofit. foreign borrowers. Public Resolution 17 program can be found at http:// New engines also must be EPA-certified.60 requires that shipments financed by www.arb.ca.gov/diesel/verdev/home/ For a complete list of all EPA certified large EXIMBANK and that move by sea, must home.htm. In addition, for more detailed highway and nonroad engines, please consult be transported exclusively on U.S.-flag information on the cost-effectiveness of the list at http://www.epa.gov/otaq/ registered vessels unless a waiver is various diesel retrofit technologies, the EPA’s certdata.htm. obtained from MARAD. study, ‘‘The Cost-Effectiveness of Heavy-Duty For more information on diesel retrofits, Annual Estimated Burden Hours: 169 Diesel Retrofits and Other Mobile Source please see the EPA’s National Clean Diesel hours. Emission Reduction Projects and Programs’’ Campaign Web site at http://www.epa.gov/ Addresses: Send comments to the can be found at: http://www.epa.gov/ cleandiesel/. Office of Information and Regulatory cleandiesel/publications.htm. [FR Doc. E8–24704 Filed 10–17–08; 8:45 am] Affairs, Office of Management and Refueling BILLING CODE 4910–22–P Budget, 725 17th Street, NW., Washington, DC 20503, Attention Refueling is eligible when combined with an overall diesel retrofit project for which the MARAD Desk Officer. cleaner fuel is required. For example, ultra- DEPARTMENT OF TRANSPORTATION Comments Are Invited on: (a) low sulfur diesel (ULSD) may be purchased Whether the proposed collection of as part of a project to install diesel particulate Maritime Administration information is necessary for the proper filters on highway construction equipment performance of the functions of the only because these devices require ULSD to Reports, Forms and Recordkeeping agency, including whether the function properly. Requirements; Agency Information information will have practical utility; Fuel-related technologies identified in Collection Activity Under OMB Review (b) the accuracy of the agency’s estimate EPA’s list of retrofit strategies are eligible AGENCY: Maritime Administration, DOT. of the burden of the proposed only until standards for such clean fuel are information collection; (c) ways to effective. For example, ULSD is eligible for ACTION: Notice and request for comments. enhance the quality, utility and clarity CMAQ only until the standard is effective. of the information to be collected; and For on-road use, ULSD is mandated for use in October 2006. According to EPA’s SUMMARY: In compliance with the (d) ways to minimize the burden of the regulatory development calendar, low sulfur Paperwork Reduction Act of 1995 (44 collection of information on diesel (500 ppm of sulfur) will be required U.S.C. 3501 et seq.), this notice respondents, including the use of for nonroad use in 2007, while ULSD (15 announces that the Information automated collection techniques or ppm of sulfur) will be required for nonroad Collection abstracted below has been other forms of information technology. use in 2010. forwarded to the Office of Management A comment to OMB is best assured of having its full effect if OMB receives it 59 23 U.S.C. 149(b)(7) (SAFETEA–LU § 1808(b)). 60 23 U.S.C. 149(b)(7) (SAFETEA–LU § 1808(b)). within 30 days of publication.

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(Authority: 49 CFR 1.66.) Board’s Web site at http:// of the submission to OMB, please Issued in Washington, DC on October 14, www.stb.dot.gov. contact Ira L. Mills at 2008. This action will not significantly [email protected], (202) 906–6531, Leonard Sutter, affect either the quality of the human or facsimile number (202) 906–6518, Secretary, Maritime Administration. environment or the conservation of Regulations and Legislation Division, energy resources. [FR Doc. E8–24909 Filed 10–17–08; 8:45 am] Chief Counsel’s Office, Office of Thrift Supervision, 1700 G Street, NW., BILLING CODE 4910–81–P Decided: October 14, 2008. By the Board, Anne K. Quinlan, Acting Washington, DC 20552. Secretary. SUPPLEMENTARY INFORMATION: OTS may DEPARTMENT OF TRANSPORTATION Anne K. Quinlan, not conduct or sponsor an information Acting Secretary. collection, and respondents are not Surface Transportation Board [FR Doc. E8–24840 Filed 10–17–08; 8:45 am] required to respond to an information [STB Ex Parte No. 670 (Sub-No. 1)] BILLING CODE 4915–01–P collection, unless the information collection displays a currently valid Notice of Rail Energy Transportation OMB control number. As part of the Advisory Committee Meeting DEPARTMENT OF THE TREASURY approval process, we invite comments on the following information collection. AGENCY: Surface Transportation Board. Office of Thrift Supervision Title of Proposal: Management ACTION: Notice of Rail Energy Official Interlocks. Transportation Advisory Committee Management Official Interlocks OMB Number: 1550–0051. meeting. AGENCY: Office of Thrift Supervision Form Number: N/A. SUMMARY: Notice is hereby given of a (OTS), Treasury. Description: The purpose of the Depository Institution Management meeting of the Rail Energy ACTION: Notice and request for comment. Transportation Advisory Committee Interlocks Act is to foster competition (RETAC), pursuant to section 10(a)(2) of SUMMARY: The proposed information by generally prohibiting a management the Federal Advisory Committee Act, collection request (ICR) described below official from serving two unaffiliated Public Law No. 92–463, as amended (5 has been submitted to the Office of depository organizations in situations U.S.C., App. 2). Management and Budget (OMB) for where the management interlock would DATES: The meeting will be held on review and approval, as required by the likely have an anticompetitive effect. 12 Tuesday, December 2, 2008, beginning Paperwork Reduction Act of 1995. OTS U.S.C. 3201–3208. This applies to at 9 a.m., E.S.T. is soliciting public comments on the service as a management official of an institution, savings and loan ADDRESSES: The meeting will be held in proposal. association, and affiliates of either. the Hearing Room on the first floor of DATES: Submit written comments on or OTS regulations set forth several the Surface Transportation Board’s before November 19, 2008. A copy of interlocking relationships that are headquarters at Patriot’s Plaza, 395 E this ICR, with applicable supporting prohibited. 12 CFR part 563f. Generally, Street, SW., Washington, DC 20423– documentation, can be obtained from a management official of a depository 0001. RegInfo.gov at http://www.reginfo.gov/ public/do/PRAMain. institution or depository holding FOR FURTHER INFORMATION CONTACT: company may not serve as a ADDRESSES: Send comments, referring to Scott M. Zimmerman (202) 245–0202. management official of an unaffiliated the collection by title of the proposal or [Assistance for the hearing impaired is depository institution or depository by OMB approval number, to OMB and available through the Federal holding company if the entities in OTS at these addresses: Office of Information Relay Service (FIRS) at: question (or a depository institution Information and Regulatory Affairs, (800) 877–8339]. affiliate thereof) have offices in the same Attention: Desk Officer for OTS, U.S. SUPPLEMENTARY INFORMATION: RETAC community or metropolitan statistical Office of Management and Budget, 725 arose from a proceeding instituted by area or are of a certain asset size. 17th Street, NW., Room 10235, the Board, in Establishment of a Rail Type of Review: Extension of a Washington, DC 20503, or by fax to Energy Transportation Advisory currently approved collection. (202) 395–6974; and Information Committee, STB Ex Parte No. 670. Affected Public: Business or other for- RETAC was formed to provide advice Collection Comments, Chief Counsel’s Office, Office of Thrift Supervision, profit. and guidance to the Board, and to serve Estimated Number of Respondents: 3. as a forum for discussion of emerging 1700 G Street, NW., Washington, DC 20552, by fax to (202) 906–6518, or by Estimated Number of Responses: 3. issues regarding the transportation by Estimated Burden Hours per rail of energy resources, particularly, but e-mail to [email protected]. Response: 4 hours. not necessarily limited to, coal, ethanol, Estimated Frequency of Response: and other biofuels. The purpose of this OTS will post comments and the related index on the OTS Internet Site at http:// Other; per transaction. meeting is to continue discussions Estimated Total Burden: 12 hours. regarding issues such as rail www.ots.treas.gov. In addition, interested persons may inspect Clearance Officer: Ira L. Mills, (202) performance, capacity constraints, 906–6531, Office of Thrift Supervision, infrastructure planning and comments at the Public Reading Room, 1700 G Street, NW., by appointment. To 1700 G Street, NW., Washington, DC development, and effective coordination 20552. among suppliers, carriers, and users of make an appointment, call (202) 906– energy resources. 5922, send an e-mail to Dated: October 14, 2008. The meeting, which is open to the [email protected], or send a Deborah Dakin, public, will be conducted pursuant to facsimile transmission to (202) 906– Senior Deputy Chief Counsel, Regulations and RETAC’s charter and Board procedures. 7755. Legislation Division. Further communications about this FOR FURTHER INFORMATION CONTACT: For [FR Doc. E8–24776 Filed 10–17–08; 8:45 am] meeting may be announced through the further information or to obtain a copy BILLING CODE 6720–01–P

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DEPARTMENT OF THE TREASURY approval process, we invite comments Attention: Desk Officer for OTS, U.S. on the following information collection. Office of Management and Budget, 725 Office of Thrift Supervision Title of Proposal: Capital Distribution. 17th Street, NW., Room 10235, OMB Number: 1550–0059. Washington, DC 20503, or by fax to Capital Distribution Form Number: 1583. (202) 395–6974; and Information Description: The OTS reviews the AGENCY: Office of Thrift Supervision Collection Comments, Chief Counsel’s information to determine whether the (OTS), Treasury. Office, Office of Thrift Supervision, request of savings associations is in 1700 G Street, NW., Washington, DC ACTION: Notice and request for comment. accordance with existing statutory and 20552, by fax to (202) 906–6518, or by SUMMARY: The proposed information regulatory criteria. In addition, the e-mail to collection request (ICR) described below information provides the OTS with a [email protected]. has been submitted to the Office of mechanism for monitoring capital OTS will post comments and the related Management and Budget (OMB) for distributions since these distributions index on the OTS Internet Site at review and approval, as required by the can reduce an association’s capital and http://www.ots.treas.gov. In addition, Paperwork Reduction Act of 1995. OTS perhaps place it at risk. interested persons may inspect is soliciting public comments on the Type of Review: Extension of a comments at the Public Reading Room, proposal. currently approved collection. 1700 G Street, NW., by appointment. To Affected Public: Business or other for- make an appointment, call (202) 906– DATES: Submit written comments on or profit. 5922, send an e-mail to before November 19, 2008. A copy of Estimated Number of Respondents: [email protected], or send a this ICR, with applicable supporting 495. facsimile transmission to (202) 906– documentation, can be obtained from Estimated Number of Responses: 495. 7755. RegInfo.gov at http://www.reginfo.gov/ Estimated Burden Hours per public/do/PRAMain. Response: Between 16 minutes and 4 FOR FURTHER INFORMATION CONTACT: For ADDRESSES: Send comments, referring to hours. further information or to obtain a copy the collection by title of the proposal or Estimated Frequency of Response: of the submission to OMB, please by OMB approval number, to OMB and Other; as required. contact Ira L. Mills at OTS at these addresses: Office of Estimated Total Burden: 546 hours. [email protected], (202) 906–6531, Information and Regulatory Affairs, Clearance Officer: Ira L. Mills, (202) or facsimile number (202) 906–6518, Attention: Desk Officer for OTS, U.S. 906–6531, Office of Thrift Supervision, Regulations and Legislation Division, Office of Management and Budget, 725 1700 G Street, NW., Washington, DC Chief Counsel’s Office, Office of Thrift 17th Street, NW., Room 10235, 20552. Supervision, 1700 G Street, NW., Washington, DC 20503, or by fax to Dated: October 14, 2008. Washington, DC 20552. (202) 395–6974; and Information Deborah Dakin, SUPPLEMENTARY INFORMATION: OTS may Collection Comments, Chief Counsel’s Senior Deputy Chief Counsel, Regulations and not conduct or sponsor an information Office, Office of Thrift Supervision, Legislation Division. collection, and respondents are not 1700 G Street, NW., Washington, DC [FR Doc. E8–24778 Filed 10–17–08; 8:45 am] required to respond to an information collection, unless the information 20552, by fax to (202) 906–6518, or by BILLING CODE 6720–01–P e-mail to collection displays a currently valid [email protected]. OMB control number. As part of the OTS will post comments and the related DEPARTMENT OF THE TREASURY approval process, we invite comments index on the OTS Internet Site at on the following information collection. http://www.ots.treas.gov. In addition, Office of Thrift Supervision Title of Proposal: Application interested persons may inspect Processing Fees. comments at the Public Reading Room, Application Processing Fees OMB Number: 1550–0053. Form Number: N/A. 1700 G Street, NW., by appointment. To AGENCY: Office of Thrift Supervision make an appointment, call (202) 906– Description: Pursuant to Section 9 of (OTS), Treasury. the Home Owners’ Loan Act, 12 U.S.C. 5922, send an e-mail to ACTION: Notice and request for comment. [email protected], or send a 1467, the Director of the OTS is authorized to charge assessments to facsimile transmission to (202) 906– SUMMARY: The proposed information recover the costs of examining savings 7755. collection request (ICR) described below associations and their affiliates, to has been submitted to the Office of FOR FURTHER INFORMATION CONTACT: For charge fees to recover the costs of Management and Budget (OMB) for further information or to obtain a copy processing applications and other review and approval, as required by the of the submission to OMB, please filings, and to charge fees to cover OTS’s Paperwork Reduction Act of 1995. OTS contact Ira L. Mills at direct and indirect expenses in is soliciting public comments on the [email protected] (202) 906–6531, regulating savings associations and their proposal. or facsimile number (202) 906–6518, affiliates. Regulations and Legislation Division, DATES: Submit written comments on or An institution must submit a fee with Chief Counsel’s Office, Office of Thrift before November 19, 2008. A copy of certain applications, including Supervision, 1700 G Street, NW., this ICR, with applicable supporting Securities and Exchange Act of 1934 Washington, DC 20552. documentation, can be obtained from filings, notices, and requests (hereafter SUPPLEMENTARY INFORMATION: OTS may RegInfo.gov at http://www.reginfo.gov/ collectively referred to as not conduct or sponsor an information public/do/PRAMain. ‘‘applications’’), before such collection, and respondents are not ADDRESSES: Send comments, referring to applications will be accepted for required to respond to an information the collection by title of the proposal or processing by OTS. 12 CFR Part 502.5. collection, unless the information by OMB approval number, to OMB and The institution is required to state how collection displays a currently valid OTS at these addresses: Office of it calculates the appropriate fee, in OMB control number. As part of the Information and Regulatory Affairs, accordance with OTS’s schedule. 12

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CFR Part 502.70. The most recent fee is soliciting public comments on the collection, and respondents are not schedule was published in Thrift proposal. required to respond to an information Bulletin TB 48–21 dated May 28, 2004. DATES: Submit written comments on or collection, unless the information Type of Review: Extension of a before November 19, 2008. A copy of collection displays a currently valid currently approved collection. this ICR, with applicable supporting OMB control number. As part of the Affected Public: Business or other for- documentation, can be obtained from approval process, we invite comments profit. RegInfo.gov at http://www.reginfo.gov/ on the following information collection. Estimated Number of Respondents: public/do/PRAMain. Title of Proposal: Application for 1,477. ADDRESSES: Send comments, referring to Issuance of Subordinated Debt Estimated Number of Responses: the collection by title of the proposal or Securities/Notice of Issuance of 1,477. by OMB approval number, to OMB and Subordinated Debt or Mandatorily Estimated Burden Hours per OTS at these addresses: Office of Redeemable Preferred Stock. Response: 2 minutes. Information and Regulatory Affairs, OMB Number: 1550–0030. Estimated Frequency of Response: Attention: Desk Officer for OTS, U.S. Form Number: 1344 and 1561. Other; as required. Office of Management and Budget, 725 Description: The information Estimated Total Burden: 49 hours. 17th Street, NW., Room 10235, collection provides the OTS with Clearance Officer: Ira L. Mills, (202) Washington, DC 20503, or by fax to necessary details to determine if the 906–6531, Office of Thrift Supervision, (202) 395–6974; and Information proposed issuance of securities will 1700 G Street, NW., Washington, DC Collection Comments, Chief Counsel’s benefit the savings association or create 20552. Office, Office of Thrift Supervision, unreasonable risks. If the information Dated: October 14, 2008. 1700 G Street, NW., Washington, DC required were not collected, the OTS Deborah Dakin, 20552, by fax to (202) 906–6518, or by would not be able to properly evaluate Senior Deputy Chief Counsel, Regulations and e-mail to whether the request to issue securities Legislation Division. [email protected]. conforms to the applicable statutory and [FR Doc. E8–24779 Filed 10–17–08; 8:45 am] OTS will post comments and the related regulatory requirements. BILLING CODE 6720–01–P index on the OTS Internet Site at Type of Review: Extension of a http://www.ots.treas.gov. In addition, currently approved collection. interested persons may inspect Affected Public: Business or other for- DEPARTMENT OF THE TREASURY comments at the Public Reading Room, profit. 1700 G Street, NW., by appointment. To Estimated Number of Respondents: 7. Office of Thrift Supervision make an appointment, call (202) 906– Estimated Number of Responses: 7. 5922, send an e-mail to Estimated Burden Hours per Application for Issuance of [email protected], or send a Response: 1 hour. Subordinated Debt Securities/Notice of facsimile transmission to (202) 906– Issuance of Subordinated Debt or 7755. Estimated Frequency of Response: On Mandatorily Redeemable Preferred occasion. FOR FURTHER INFORMATION CONTACT: For Stock Estimated Total Burden: 7 hours. further information or to obtain a copy Clearance Officer: Ira L. Mills, (202) AGENCY: Office of Thrift Supervision of the submission to OMB, please 906–6531, Office of Thrift Supervision, contact Ira L. Mills at (OTS), Treasury. 1700 G Street, NW., Washington, DC [email protected], (202) 906–6531, ACTION: Notice and request for comment. 20552. or facsimile number (202) 906–6518, SUMMARY: The proposed information Regulations and Legislation Division, Dated: October 14, 2008. collection request (ICR) described below Chief Counsel’s Office, Office of Thrift Deborah Dakin, has been submitted to the Office of Supervision, 1700 G Street, NW., Senior Deputy Chief Counsel, Regulations and Management and Budget (OMB) for Washington, DC 20552. Legislation Division. review and approval, as required by the SUPPLEMENTARY INFORMATION: OTS may [FR Doc. E8–24782 Filed 10–17–08; 8:45 am] Paperwork Reduction Act of 1995. OTS not conduct or sponsor an information BILLING CODE 6720–01–P

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Part II

Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Halogenated Solvent Cleaning; Proposed Rule

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ENVIRONMENTAL PROTECTION • E-mail: [email protected]. encryption, and be free of any defects or AGENCY • Fax: (202)566–1741. viruses. • Mail: Air and Radiation Docket, Docket: All documents in the docket 40 CFR Part 63 EPA, Mailcode: 6102T, 1200 are listed in the http:// Pennsylvania Ave., NW., Washington, [EPA–HQ–OAR–2002–0009; FRL–8727–5] www.regulations.gov index. Although DC 20460. Please include a duplicate listed in the index, some information is RIN 2060–AP07 copy, if possible. We request that a not publicly available, e.g., CBI or other separate copy of each public comment information whose disclosure is National Emission Standards for also be sent to the contact person listed restricted by statute. Certain other Halogenated Solvent Cleaning below (see FOR FURTHER INFORMATION material, such as copyrighted material, AGENCY: Environmental Protection CONTACT). • Hand Delivery: In person or by will be publicly available only in hard Agency (EPA). copy. Publicly available docket ACTION: Proposed Notice of courier, deliver comments to: EPA Docket Center (2822T), EPA West materials are available either Reconsideration and Request for Public electronically in http:// Comment. Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. Such www.regulations.gov or in hard copy at SUMMARY: On May 3, 2007, EPA deliveries are only accepted during the the EPA Docket Center, Docket ID No. promulgated the final rule titled: Docket’s normal hours of operation and EPA–HQ–OAR–2002–0009, EPA West National Air Emission Standards for special arrangements should be made Building, Room 3334, 1301 Constitution Hazardous Air Pollutants: Halogenated for deliveries of boxed information. We Ave., NW., Washington, DC. The Public Solvent Cleaning (the Halogenated request that a separate copy of each Reading Room is open from 8:30 a.m. to Solvent Cleaning rule) pursuant to public comment also be sent to the 4:30 p.m., Monday through Friday, sections 112(d)(6) and 112(f) of the contact person listed below (see FOR excluding legal holidays. The telephone Clean Air Act. The Halogenated Solvent FURTHER INFORMATION CONTACT). number for the Public Reading Room is Cleaning rule set facility-wide emission Instructions: Direct your comments to (202) 566–1744, and the telephone limits for certain halogenated solvent Docket ID No. EPA–HQ–OAR–2002– number for the Air and Radiation cleaning machines and a May 3, 2010, 0009. EPA’s policy is that all comments Docket is (202) 566–1742. compliance deadline. received will be included in the public FOR FURTHER INFORMATION CONTACT: For Following promulgation of the docket without change and may be questions about this proposed action, Halogenated Solvent Cleaning rule, the made available online at http:// contact Mr. H. Lynn Dail, Office of Air Administrator received several petitions www.regulations.gov, including any Quality Planning and Standards, Sector for reconsideration, pursuant to Clean personal information provided, unless Policies and Programs Division, Natural Air Act section 307(d)(7)(B). The the comment includes information Resources and Commerce Group (E143– purpose of this notice is to initiate a claimed to be confidential business 03), U.S. Environmental Protection process for responding to certain issues information (CBI) or other information Agency, Research Triangle Park, NC raised in the petitions. We are whose disclosure is restricted by statute. 27711; telephone number: (919) 541– requesting comment on the particular Do not submit information that you 2363; fax number: (919) 541–3470; and issues for which we are granting consider to be CBI or otherwise e-mail address: [email protected]. For reconsideration, and those issues are protected through http:// specific information regarding the identified, in detail, below. Specifically, www.regulations.gov or e-mail. The modeling methodology, contact Ms. we are requesting comment on the http://www.regulations.gov Web site is Elaine Manning, Office of Air Quality revised risk assessment, our use of the an ‘‘anonymous access’’ system, which Planning and Standards, Health and 2002 National Emissions Inventory data means EPA will not know your identity Environmental Impacts Division, Sector in lieu of the 1999 National Emissions or contact information unless you Based Assessment Group (C539–02), Inventory data, which was used at provide it in the body of your comment. U.S. Environmental Protection Agency, proposal, our ample margin of safety If you send an e-mail comment directly Research Triangle Park, NC 27711; determination under Clean Air Act to EPA without going through http:// telephone number: (919) 541–5499; fax section 112(f)(2), our determination www.regulations.gov, your e-mail number: (919) 541–0840; and e-mail under Clean Air Act section 112(d)(6), address will be automatically captured address: [email protected]. For and the compliance deadline. and included as part of the comment information about the applicability of DATES: that is placed in the public docket and Comments. Comments must be these national emission standards for made available on the Internet. If you received on or before December 4, 2008. hazardous air pollutants (NESHAP) to a Public Hearing. If anyone contacts submit an electronic comment, EPA particular entity, contact Mr. Scott EPA requesting to speak at a public recommends that you include your Throwe, Office of Enforcement and hearing by October 30, 2008, a public name and other contact information in Compliance Assurance, U.S. hearing will be held November 4, 2008. the body of your comment and with any Environmental Protection Agency, disk or CD–ROM you submit. If EPA ADDRESSES: Submit your comments, Washington, DC, (202) 564–7013; and e- cannot read your comment due to identified by Docket ID No. EPA–HQ– mail address: [email protected]. OAR–2002–0009, by one of the technical difficulties and cannot contact following methods: you for clarification, EPA may not be SUPPLEMENTARY INFORMATION: Regulated • http://www.regulations.gov. Follow able to consider your comment. Entities. Categories and entities the on-line instructions for submitting Electronic files should avoid the use of potentially affected by this notice comments. special characters, any form of include:

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Category NAICS 1 code Examples of potentially regulated entities

Industry ...... Any of numerous industries using halogenated solvent Operations at sources that are engaged in solvent cleaning, primary affected industries include those in cleaning using methylene chloride (MC), NAICS Codes beginning with: 331 (primary metal perchloroethylene (PCE), or trichloroethylene (TCE). manufacturing), 332 (fabricated metal manufacturing), 333 (machinery manufacturing), 334 (computer and electronic product manufacturing), 335 (electrical equipment, appliance, and component manufac- turing); 336 (transportation equipment manufac- turing); 337 (furniture and related products manufac- turing); and 339 (misc. manufacturing). Federal, State, local, and ...... Operations at sources that are engaged in solvent tribal government. cleaning using MC, PCE, or TCE. 1 North American Industry Classification System.

This table is not intended to be please consult the person identified in arguments concerning the proposed exhaustive, but rather provides a guide the FOR FURTHER INFORMATION CONTACT standards. for readers regarding entities likely to be section. Information marked as CBI will Outline. The information presented in affected by this proposed action. This not be disclosed except in accordance this Preamble is organized as follows: action proposes to require an owner or with procedures set forth in 40 CFR part I. Background operator of a facility that is subject to 2. Worldwide Web (WWW). In addition A. What is the statutory authority for the 1994 NESHAP for Halogenated to being available in the docket, an regulating hazardous air pollutants? Solvent Cleaning (40 CFR part 63.460 of electronic copy of this proposed action B. What is the Halogenated Solvent subpart T) to operate under certain will also be available on the WWW Cleaning rule? specific emission limits. If you have any through the Technology Transfer C. What have we been asked to reconsider? questions regarding the applicability of Network (TTN). Following signature, a II. Proposed Response to the Petitions for Reconsideration this proposal to a particular entity, copy of the proposed action will be A. What is our proposed action? consult the person listed in the posted on the TTN’s policy and B. What is the reason for our proposed preceding FOR FURTHER INFORMATION guidance page for newly proposed or action? CONTACT section. promulgated rules at the following III. Discussion of Issues Subject to Submitting Comments/CBI. Direct address: http://www.epa.gov/ttn/oarpg/. Reconsideration your comments to Docket ID No. EPA– The TTN provides information and A. Baseline Risk Assessment and Decision HQ–OAR–2002–0009. Do not submit technology exchange in various areas of on Acceptable Risk air pollution control. B. Decision on Ample Margin of Safety CBI to EPA through http:// C. Clean Air Act Section 112(d)(6) Review www.regulations.gov or e-mail. Instead, Additional information is available in D. Compliance Schedule send or deliver information identified as section I of this preamble and on the IV. Proposed Regulatory Text CBI only to the following address: Mr. Halogenated Solvents Cleaning Web V. Impacts Roberto Morales, OAQPS Document page at http://www.epa.gov/ttn/atw/ VI. Statutory and Executive Order Reviews Control Officer (C404–02), U.S. rrisk/rtrpg.html. This information A. Executive Order 12866: Regulatory Environmental Protection Agency, includes source category descriptions Planning and Review Office of Air Quality Planning and and detailed emissions and other data B. Paperwork Reduction Act Standards, Research Triangle Park, NC that were used as inputs to the risk C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act 27711, Attention Docket ID No. EPA– assessments. E. Executive Order 13132: Federalism HQ–OAR–2002–0009. Clearly mark the Public Hearing. If anyone contacts F. Executive Order 13175: Consultation part or all of the information that you EPA requesting to speak at a public and Coordination With Indian Tribal claim to be CBI. For CBI information on hearing concerning the particular issues Governments a disk or CD–ROM that you mail to Mr. for which we are granting G. Executive Order 13045: Protection of Morales, mark the outside of the disk or reconsideration by October 30, 2008, we Children From Environmental Health CD–ROM as CBI and then identify will hold a public hearing at 10 a.m. at and Safety Risks electronically within the disk or CD– EPA’s Campus located at 109 T.W. H. Executive Order 13211: Actions ROM the specific information that is Concerning Regulations That Alexander Drive in Research Triangle Significantly Affect Energy Supply, claimed as CBI. Park, NC, or an alternate site nearby on Distribution, or Use In addition to one complete version of November 4, 2008. Persons interested in I. National Technology Transfer the comment that includes information presenting oral testimony should Advancement Act claimed as CBI, a copy of the comment contact Ms. Joan C. Rogers, Natural J. Executive Order 12898: Federal Actions that does not contain the information Resources and Commerce Group (E143– to Address Environmental Justice in claimed as CBI must be submitted for 03), Sector Policies and Programs Minority Populations and Low-Income inclusion in the public docket. If you Division, EPA, Research Triangle Park, Populations submit a CD–ROM or disk that does not NC 27711, telephone number: (919) I. Background contain CBI, mark the outside of the 541–4487, e-mail address: disk or CD–ROM clearly that it does not [email protected], by October 30, A. What is the statutory authority for contain CBI. Information not marked as 2008. Persons interested in attending regulating hazardous air pollutants? CBI will be included in the public the public hearing should also call Ms. Section 112 of the Clean Air Act docket and EPA’s electronic public Rogers to verify the time, date, and (CAA) establishes a two-stage regulatory docket without prior notice. location of the hearing. A public hearing process to address emissions of If you have any questions about CBI will provide interested parties the hazardous air pollutants (HAP) from or the procedures for claiming CBI, opportunity to present data, views, or stationary sources. In the first stage,

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after EPA has identified categories of sources, and recommendations as to factors, an adverse environmental sources emitting one or more of the HAP legislation regarding such remaining effect). listed in section 112(b) of the CAA, risk. EPA prepared and submitted this The terms ‘‘individual most exposed,’’ section 112(d) of the CAA calls for us report (Residual Risk Report to ‘‘acceptable level,’’ and ‘‘ample margin to promulgate NESHAP for those Congress, EPA–453/R–99–001) in March of safety’’ are not specifically defined in sources: ‘‘Major sources’’ are those that 1999. Congress did not act in response the CAA. However, CAA section emit or have the potential to emit any to the report, thereby triggering EPA’s 112(f)(2)(B) directs us to use the single HAP at a rate of 10 tons or more obligation under CAA section 112(f)(2) interpretation set out in the Benzene per year or 25 tons or more per year of to analyze and address residual risk. NESHAP. See also, A Legislative History any combination of HAP. For major CAA section 112(f)(2) requires us to of the Clean Air Act Amendments of sources, the technology-based standards determine for source categories subject 1990, volume 1, p. 877 (Senate debate must reflect the maximum degree of to certain CAA section 112(d) standards on Conference Report). We notified emission reductions of HAP achievable whether the emission limitations Congress in the Residual Risk Report to (after considering cost, energy provide an ample margin of safety to Congress that we intended to use the requirements, and non-air quality health protect public health. If the MACT Benzene NESHAP approach in making and environmental impacts) and are standards for HAP ‘‘classified as a CAA section 112(f) residual risk commonly referred to as maximum known, probable, or possible human determinations (EPA–453/R–99–001, p. achievable control technology (MACT) carcinogen do not reduce lifetime excess ES–11). standards. cancer risks to the individual most In the Benzene NESHAP, we stated as The MACT floor is the minimum exposed to emissions from a source in an overall objective: control level allowed for NESHAP and the category or subcategory to less than * * * in protecting public health with an is defined under section 112(d)(3) of the 1-in-1 million,’’ EPA must promulgate ample margin of safety, we strive to provide CAA. For new sources, the MACT floor residual risk standards for the source maximum feasible protection against risks to cannot be less stringent than the category (or subcategory) as necessary to health from hazardous air pollutants by (1) emission control that is achieved in protecting the greatest number of persons practice by the best-controlled similar provide an ample margin of safety to possible to an individual lifetime risk level source. The MACT standards for protect public health. EPA must also no higher than approximately 1-in-1 million; existing sources can be less stringent adopt more stringent standards, if and (2) limiting to no higher than than standards for new sources, but it necessary, to prevent an adverse approximately 1-in-10 thousand (i.e., 100-in- environmental effect,1 but must 1 million) the estimated risk that a person cannot be less stringent than the average living near a facility would have if he or she emission limitation achieved by the consider cost, energy, safety, and other relevant factors in doing so. In a were exposed to the maximum pollutant best-performing 12 percent of existing concentrations for 70 years. sources in the category or subcategory residual risk rulemaking under section We also stated that, ‘‘The EPA also (or the best-performing five sources for 112(f)(2), EPA may adopt standards considers incidence (the number of categories or subcategories with fewer equal to the existing MACT standards persons estimated to suffer cancer or than 30 sources). In developing MACT (NRDC v. EPA, 529 F.3d 1077, 1083 standards, we must also consider (D.C. Cir. 2008). other serious health effects as a result of control options that are more stringent Section 112(f)(2) of the CAA expressly exposure to a pollutant) to be an than the floor. We may establish preserves our use of the two-step important measure of the health risk to standards more stringent than the floor process for developing standards to the exposed population. Incidence based on the consideration of the cost of address residual risk and our measures the extent of health risk to the achieving the emission reductions, any interpretation of ‘‘ample margin of exposed population as a whole, by non-air quality health and safety’’ developed in the National providing an estimate of the occurrence environmental impacts, and energy Emission Standards for Hazardous Air of cancer or other serious health effects requirements. Pollutants: Benzene Emissions from in the exposed population.’’ The EPA EPA is then required to review these Maleic Anhydride Plants, Ethylbenzene/ went on to conclude that ‘‘estimated technology-based standards and to Styrene Plants, Benzene Storage Vessels, incidence would be weighed along with revise them ‘‘as necessary (taking into Benzene Equipment Leaks, and Coke other health risk information in judging account developments in practices, By-Product Recovery Plants (Benzene acceptability.’’ As explained more fully processes, and control technologies)’’ no NESHAP) (54 FR 38044, September 14, in our Residual Risk Report to Congress, less frequently than every 8 years, under 1989). See NRDC v. EPA, 529 F.3d 1077 EPA does not define ‘‘rigid line(s) of CAA section 112(d)(6). In this proposal, D.C. Cir. 2008). The first step in the acceptability,’’ but considers rather we are publishing the results of our 8- residual risk process is the broad objectives to be weighed with a year technology review for the determination of acceptable risk. The series of other health measures and halogenated cleaning solvent source second step provides for an ample factors (EPA–453/R–99–001, p. ES–11). category. margin of safety to protect public health, The determination of what represents an The second stage in standard-setting which is the level at which the ‘‘acceptable’’ risk is based on a judgment of focuses on reducing any remaining standards are set (unless a more ‘‘what risks are acceptable in the world in ‘‘residual’’ risk according to CAA stringent standard is required to which we live’’ (54 FR 38045, quoting the section 112(f). This provision requires, Vinyl Chloride decision at 824 F.2d 1165) prevent, taking into consideration costs, recognizing that our world is not risk-free. first, that EPA prepare a Report to energy, safety, and other relevant Congress discussing (among other In the Benzene NESHAP, we stated things) methods of calculating risk 1 ‘‘Adverse environmental effect’’ is defined in that ‘‘EPA will generally presume that if posed (or potentially posed) by sources CAA Section 112(a)(7) as any significant and the risk to (the maximum exposed) after implementation of the MACT widespread adverse effect, which may be individual is no higher than standards, the public health significance reasonably anticipated to wildlife, aquatic life, or approximately 1-in-10 thousand, that natural resources, including adverse impacts on of those risks, the means and costs of populations of endangered or threatened species or risk level is considered acceptable.’’ We controlling them, actual health effects to significant degradation of environmental quality discussed the maximum individual persons in proximity of emitting over broad areas. lifetime cancer risk as being ‘‘the

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estimated risk that a person living near of safety,’’ again includes consideration production and use of these a plant would have if he or she were of all of the health factors, and whether chlorofluorocarbons by January 1, 1996. exposed to the maximum pollutant to reduce the risks even further. In the The Montreal Protocol also phased out concentrations for 70 years.’’ We second step, EPA strives to provide the production and use of TCA. explained that this measure of risk ‘‘is protection to the greatest number of Although production and use of TCA an estimate of the upperbound of risk persons possible to an individual has been phased out since 1998, an based on conservative assumptions, lifetime risk level no higher than exemption to the phase-out allows such as continuous exposure for 24 approximately 1 in 1 million. In the facilities with essential products or hours per day for 70 years.’’ 2 We ample margin decision, the EPA again activities to continue their use of TCA, acknowledge that maximum individual considers all of the health risk and other and facilities with non-essential lifetime cancer risk ‘‘does not health information considered in the activities or products to continue the necessarily reflect the true risk, but first step. Beyond that information, use of their remaining TCA stockpiles displays a health-protective risk level additional factors relating to the until depleted. A declining quantity of which is an upper bound that is appropriate level of control will also be TCA continued to be used until 2002, unlikely to be exceeded.’’ 3 considered, including costs and when all production of TCA ceased, and Understanding that there are both economic impacts of controls, eventually, facilities used TCA benefits and limitations to using technological feasibility, uncertainties, stockpiles until depleted. Since January maximum individual lifetime cancer and any other relevant factors. 1, 2002, TCA has not been risk as a metric for determining Considering all of these factors, the EPA manufactured for domestic use in the acceptability, we acknowledged in the will establish the standard at a level that United States. 1989 Benzene NESHAP that provides an ample margin of safety to Halogenated solvent cleaning ‘‘consideration of maximum individual protect the public health, as required by machines use MC, PCE, TCE and TCA risk * * * must take into account the section 112.’’ to remove soils such as grease, oils, strengths and weaknesses of this waxes, carbon deposits, fluxes, and tars B. What is the Halogenated Solvent measure of risk.’’ 4 Consequently, the from metal, plastic, fiberglass, printed Cleaning rule? presumptive risk level of 100-in-1 circuit boards, and other surfaces. million (1-in-10 thousand) provides a On December 2, 1994, we Halogenated solvent cleaning is benchmark for judging the acceptability promulgated national emission typically performed prior to processes of maximum individual lifetime cancer standards for halogenated solvent such as painting, plating, inspection, risk, but does not constitute a rigid line cleaning machines 6 (59 FR 61801, repair, assembly, heat treatment, and for making that determination. December 2, 1994) (1994 NESHAP), to machining. Types of halogenated The EPA also explained in the 1989 control emissions of the halogenated solvent cleaning machines include, but Benzene NESHAP the following: solvents MC, PCE, TCE, 1,1,1,- are not limited to, batch vapor, in-line In establishing a presumption for MIR 5, trichloroethane (TCA), carbon vapor, in-line cold, and batch cold rather than rigid line for acceptability, the tetrachloride, chloroform, and solvent cleaning machines. Buckets, Agency intends to weigh it with a series of halogenated solvent blends or their pails, and beakers with capacities of 7.6 other health measures and factors. These vapors from halogenated solvent liters (2 gallons) or less are not include the overall incidence of cancer or cleaning machines, pursuant to Section considered halogenated solvent cleaning other serious health effects within the 112(d) of the CAA. The standards, exposed population, the numbers of persons machines. which can be found in 40 CFR Subpart In May 2007, we promulgated the exposed within each individual lifetime risk T, include multiple alternatives that range and associated incidence within, Halogenated Solvent Cleaning rule (72 typically, a 50 kilometer (km) exposure allow maximum compliance flexibility. FR 25138), which established revised radius around facilities, the science policy The final rule is available in the docket standards that further limit emissions of assumptions and estimation uncertainties for this rulemaking. It can also be MC, TCE and PCE from facilities associated with the risk measures, weight of accessed at: http://www.epa.gov/ttn/ engaged in halogenated solvent the scientific evidence for human health atw/degrea/halopg.html. cleaning, pursuant to CAA section effects, other quantified or unquantified Carbon tetrachloride and chloroform 112(f). Specifically, we promulgated a health effects, effects due to co-location of are no longer used in this source facilities, and co-emission of pollutants. facility-wide emission limit of 60,000 category. The Montreal Protocol, a kilograms per year (kg/yr) MC In some cases, these health measures multi-national treaty signed on equivalent 7 that applied to all and factors taken together may provide September 16, 1987, phased out the halogenated solvent cleaning machines a more realistic description of the with the exception of halogenated magnitude of risk in the exposed 6 Halogenated solvent cleaning does not constitute a distinct industrial category, but is an solvent cleaning machines used by the population than that provided by following industries: Facilities that maximum individual lifetime cancer integral part of many major industries. The five 3- digit NAICS Codes that use the largest quantities of manufacture narrow tubing, facilities risk alone. halogenated solvents for cleaning are NAICS 337 that use continuous web cleaning As explained in the Benzene (furniture and related products manufacturing), machines, aerospace manufacturing and NESHAP, ‘‘(e)ven though the risks NAICS 332 (fabricated metal manufacturing), maintenance facilities, and military judged ‘‘acceptable’’ by EPA in the first NAICS 335 (electrical equipment, appliance, and component manufacturing), NAICS 336 maintenance and depot facilities. We step of the Vinyl Chloride inquiry are (transportation equipment manufacturing), and also promulgated a facility-wide already low, the second step of the NAICS 339 (miscellaneous manufacturing). emission limit of 100,000 kg/yr MC inquiry, determining an ‘‘ample margin Additional industries that use halogenated solvents for cleaning include NAICS 331 (primary metals), NAICS 333 (machinery), and NAICS 334 (electronic 7 All emission limits and emission rates in the 2 Quoted text is from the Benzene NESHAP equipment manufacturing). Non-manufacturing assessments were converted to MC equivalents preamble, pages 38045 and 38046. industries such as railroad (NAICS 482), bus based on the relative cancer potency of the HAP 3 Quoted text is from the Benzene NESHAP (NAICS 485), aircraft (NAICS 481), and truck emitted. The cancer potency-weighted MC preamble, pages 38045 and 38046. (NAICS 484) maintenance facilities; automotive and equivalent emission rate was calculated as the 4 Quoted text is from the Benzene NESHAP electric tool repair shops (NAICS 811); and estimated emissions for the HAP in kg/yr or lb/yr preamble, pages 38045 and 38046. automobile dealers (NAICS 411) also use times the unit risk estimate (URE) for the HAP 5 MIR is the maximum individual cancer risk. halogenated solvent cleaning machines. divided by the URE for MC.

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equivalent for halogenated solvent letters are in the docket for this date of publication of the final rule to cleaning machines used at military rulemaking.) comply with the requirements of the maintenance and depot facilities. We Finally, petitioners challenged the final rule. We believe that such an required existing facilities to comply Halogenated Solvent Cleaning rule in extension is appropriate to allow the with the revised standards by May 3, the Court of Appeals for the District of affected facilities time to meet the more 2010, which is three years after the Columbia Circuit.9 Because we intended stringent emission limitations. effective date of the Halogenated to initiate notice and comment We are seeking public comment on all Solvent Cleaning rule. Further, with rulemaking to address the Petitions, the aspects of this proposed reconsideration regard to halogenated solvent cleaning Court has granted our request to hold rule. As noted above, the issues machines used by facilities that the litigation in abeyance. The Court has identified below are the ones for which manufacture narrow tubing, facilities directed the parties to the litigation to we are granting reconsideration. We will that use continuous web cleaning file Motions to Govern Further convey our decision as to any other machines, and aerospace manufacturing Proceedings by November 3, 2008. issues raised in the reconsideration petitions no later than the date by which and maintenance facilities we found, II. Proposed Response to the Petitions we take final action on the issues after considering risks, associated for Reconsideration compliance costs and the availability of discussed in this action. A. What is our proposed action? control measures, that the 1994 B. What is the reason for our proposed NESHAP reduces risk to acceptable In this action, we are proposing to action? levels, provides an ample margin of find that the risk associated with the On August 17, 2006, pursuant to CAA safety to protect public health, and 1994 NESHAP for the halogenated section 112(f), we proposed revised prevents adverse environmental effects. solvent cleaning source category is standards (71 FR 47670, August 17, We also reviewed the 1994 NESHAP as acceptable within the meaning of 2006) (August 2006 Proposal) to further required by CAA section 112(d)(6). Section 112(f). We are also proposing limit emissions of MC, TCE and PCE various regulatory options that would C. What have we been asked to from facilities engaged in halogenated provide an ample margin of safety to reconsider? solvent cleaning. We co-proposed protect public health and prevent emission limits of 25,000 kg/yr MC Following promulgation of the adverse environmental effects. These equivalent and 40,000 kg/yr MC Halogenated Solvent Cleaning rule, the proposed requirements would apply to equivalent to provide an ample margin Administrator received several owners and operators of halogenated 8 of safety to protect public health and petitions for reconsideration solvent cleaning machines that are prevent adverse environmental effects. (Petitions), under CAA section subject to the 1994 NESHAP. We are The August 2006 proposal also 307(d)(7)(B). Generally, petitioners proposing these requirements under identified other levels of emission claimed that the Halogenated Solvent both CAA sections 112(d)(6) and reductions, including the 60,000 and Cleaning rule contained legal 112(f)(2). For existing sources that were 100,000 kg/yr MC equivalent levels. 71 interpretations and information that are not subject to the emission reduction FR 47680–81. We indicated that we of central relevance to the final rule that requirements in the Halogenated expected to finalize one of the two co- were not sufficiently reflected at Solvent Cleaning rule,10 we are proposed options, and that the proposal, and that they, therefore, did proposing a 2-year compliance deadline standards finalized would apply to the not have adequate opportunity to from the date of publication of the final entire source category in addition to the provide input during the designated rule in the Federal Register. As to those 1994 NESHAP requirements. We also public comment period. Further, sources that were subject to emission proposed a compliance deadline for petitioners claimed that additional reduction requirements in the existing sources of two years after the information on compliance measures Halogenated Solvent Cleaning rule,11 if had become available since the close of effective date of the final rule. the final rule on reconsideration Industry, States, solvent the public comment period for the changes those requirements and makes Halogenated Solvent Cleaning rule, and manufacturers, industry trade them more stringent, we propose that associations and district air associations that this new information is also of these sources have two years from the central relevance to the Halogenated submitted comments in response to our August 2006 proposal. Industry’s Solvent Cleaning rule. 9 Commonwealth of Pennsylvania Department of On August 15, 2007, EPA informed Environmental Protection v. EPA, No. 07–1129 comments were primarily submitted by petitioners of its intent to initiate notice (D.C. Cir.); Citizens for Pennsylvania’s Future and the aerospace manufacturing and and comment rulemaking to address the Sierra Club v. EPA, No. 07–1255 (D.C. Cir.); Natural maintenance industry, the narrow Resources Defense Council v. EPA, No. 07–1256 tubing manufacturing industry, facilities Petitions. We also informed petitioners (D.C. Cir.). These cases have since been that the particular issues for consolidated. that use continuous web cleaning reconsideration and the specifics of the 10 These sources include halogenated solvent machines, and military maintenance reconsideration process would be cleaning machines used by facilities that and depot facilities. Comments focused addressed in a forthcoming Federal manufacture narrow tubing, facilities that on associated compliance costs, manufacture specialized products requiring technical feasibility, and the proposed Register notice. Additionally, we denied continuous web cleaning machines, and aerospace the request to stay the effectiveness of manufacturing and maintenance facilities. compliance deadline. In response to the Halogenated Solvent Cleaning rule 11 These sources include halogenated solvent these comments, we issued a Notice of pending completion of the cleaning machines at military maintenance and Data Availability (NODA), on December depot facilities and the general population of 14, 2006 (71 FR 75182), requesting reconsideration proceedings. (These halogenated solvent cleaning machines. The general population of halogenated solvent cleaning specific information on compliance 8 These petitions for reconsideration were filed by machines includes all halogenated solvent cleaning costs, technical feasibility, and the Commonwealth of Pennsylvania Department of machines, except those machines used by facilities compliance deadlines as they related to Environmental Protection, Natural Resources that manufacture narrow tubing, facilities that halogenated solvent machines used by Defense Council, Citizens for Pennsylvania’s Future manufacture specialized products requiring and Sierra Club, several State and federal legislators continuous web cleaning, aerospace manufacturing the above-referenced industries. and the Governor of the Commonwealth of and maintenance facilities, and military Responses to the NODA provided Pennsylvania (petitioners). maintenance and depot facilities. significant data and information that led

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EPA to re-evaluate the data and (NEI) as opposed to data from the 1999 cancer incidences presented in the assumptions used to estimate risks, NEI; EPA’s conclusion that the 1994 Halogenated Solvent Cleaning rule, the costs and technical feasibility of NESHAP reduces risk to acceptable resulting 38 percent increased cancer compliance with the co-proposed levels and provides an ample margin of incidence was not subject to public emission limits. safety to protect public health for comment. The petitioner further In the Halogenated Solvent Cleaning aerospace manufacturing and contends that cancer risks would have rule, we presented our re-evaluation of maintenance facilities, facilities that increased beyond 38 percent but for the risks, costs and technical feasibility of manufacture narrow tubing, and exemptions of certain halogenated compliance with the co-proposed facilities that use continuous web solvent cleaning machines that had a emission limits. As a result of our re- cleaning machines; EPA’s technical further effect of removing the evaluation, we promulgated a facility- feasibility and cost analyses in the final Collegeville, PA, population from the wide emission limit of 60,000 kg/yr MC rule; and the 3-year compliance period population risk distribution. equivalent for all halogenated solvent for existing sources. However, contrary to petitioners cleaning machines with the exception of Petitioners also provided information understanding, we performed a risk halogenated solvent cleaning machines on technical feasibility that was not assessment for the entire halogenated used by facilities that manufacture otherwise available to EPA at the time solvent cleaning machines source narrow tubing, facilities that use of promulgation of the Halogenated category both for the August 2006 continuous web cleaning machines, Solvent Cleaning rule. That information Proposal (71 FR 47670) and for the aerospace manufacturing and shows certain facilities that manufacture Halogenated Solvent Cleaning rule (72 maintenance facilities, and military narrow tubing either taking steps or FR 25138). Our re-evaluation of risks maintenance and depot facilities. We planning to take steps to reduce HAP involved the re-assessment of the risks determined that this emission limit emissions at their facilities. This for the entire category using both the would provide an ample margin of information is discussed in greater 1999 and the 2002 NEI inventory safety to protect health and prevent detail below. (discussed in greater detail, below), adverse environmental effects. For all In response to the petitions, we are which was not available at the time of halogenated solvent cleaning machines reconsidering various issues, and those the August 2006 Proposal, but was used at military maintenance and depot issues are described in detail below. available for the Halogenated Solvent facilities, we promulgated a facility- Cleaning rule. The preamble and risk wide emission limit of 100,000 kg/yr III. Discussion of Issues Subject to assessment also provided separate MC equivalent that would provide an Reconsideration analyses for each of the industry sectors ample margin of safety to protect health A. Baseline Risk Assessment and (facilities that manufacture narrow and prevent adverse environmental Decision on Acceptable Risk tubing, aerospace manufacturing and effects. We also set a compliance maintenance, military maintenance and In addition to the general issues deadline of three years from the depots, facilities that use continuous raised above, petitioners raised several effective date of the Halogenated web cleaning machines) and the subset specific issues relating to the baseline Solvent Cleaning rule. Finally, with of remaining facilities not included in risk assessment and EPA’s decision on regard to facilities that use continuous one of these four sectors that make up web cleaning machines and halogenated acceptable risk. Before discussing the issues on which the halogenated solvent cleaning source solvent cleaning machines used by category. This approach allowed us to facilities that manufacture narrow we are granting reconsideration, we would like to clarify a compare the risk contribution of each tubing and aerospace manufacturing sector to the overall risks presented by and maintenance facilities, we found misunderstanding that was revealed to us in the Petitions. Specifically, certain the facilities in the halogenated solvent that the current level of control required source category. In this way, we were by the 1994 NESHAP reduces HAP petitioners contend that by removing facilities that use continuous web able to show the contribution of each emissions to levels that provide an sector’s risk to the risk from the entire ample margin of safety to protect public cleaning machines, and halogenated solvent cleaning machines used by category. Therefore, contrary to health and prevent any adverse petitioners’ allegations, our re-analyses environmental effects. facilities that manufacture narrow tubing, aerospace manufacturing and of the risks in the Halogenated Solvent As noted earlier above, following Cleaning rule did not exclude a subset promulgation of the Halogenated maintenance, and military maintenance and depot facilities in the risk of the halogenated solvent cleaning Solvent Cleaning rule, the machines source category and therefore, Administrator received several petitions assessments for the Halogenated Solvent Cleaning rule, we failed to consider the did not understate or fail to consider a for reconsideration, under CAA Section portion of the risks associated with the 307(d)(7)(B). In general, petitioners health risks from the entire source category and thus, that the Halogenated entire source category. alleged that the following issues With regard to the issues on which Solvent Cleaning rule deviated from the appeared for the first time in the EPA is granting reconsideration, one Benzene NESHAP (54 FR 38044, Halogenated Solvent Cleaning rule, petitioner states that we failed to September 14, 1989) framework and making it impracticable to raise consider the risk assessment prepared CAA Section 112(f)(2)(B). Petitioners objections during the period provided by the Commonwealth of Pennsylvania also contend that the risks associated for public comment: The 60,000 kg/yr Department of Environmental Protection with the source category are ‘‘gross MC equivalent limit for the general (PADEP),12 and that our maximum population of halogenated solvent underestimates of actual risks’’ because cleaning machines; the 100,000 kg/yr of our removal of this subset of sources. 12 In addition to raising the PADEP risk MC equivalent limit for halogenated One petitioner asserts that because the assessment in their Petitions, Petitioners identified solvent cleaning machines used by risk assessment at proposal showed the certain other documents dated after the close of the military maintenance and depot baseline maximum individual risk public comment period, which they argue are of central relevance to the Halogenated Solvent facilities; EPA’s decision to use in (MIR) as 200-in-1 million with 0.40 Cleaning rule. If the Petitioners believe that these support of its risk assessment, data from annual cancer incidences, as compared documents are relevant to the issues on which we the 2002 National Emissions Inventory to 100-in-1 million and 0.55 annual Continued

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individual cancer risk level of 70-in-1 2006, providing EPA further insight as contribution of each sector’s risk to the million associated with the narrow they develop a revised health risk risk from the entire source category. The tubing industry was erroneous given the assessment for TCE. EPA never finalized 1999 NEI contains information for 1,167 associated risks of 160-in-1 million the 2001 draft report because of the halogenated solvent cleaning facilities, indicated by PADEP’s risk assessment. significant issues raised by the Science out of which 743 emit carcinogenic Another petitioner contends that the Advisory Board and NAS. Thus, HAP. The 2002 NEI contains certain assumptions underlying EPA’s PADEP’s use of EPA’s draft 2001 TCE information for 1,080 halogenated risk assessment for the Halogenated risk assessment neither satisfies the solvent cleaning facilities, out of which Solvent Cleaning rule are erroneous. In basic requirements of our peer review 734 emit carcinogenic HAP. Considering support of its position, the petitioner policy, nor is the draft 2001 TCE risk the uncertainties associated with the cites EPA’s use of census block assessment currently endorsed by the development of emission inventories, centroids to predict MIR. The petitioner EPA’s Office of Research and we consider neither the 1999 nor the argues that EPA should have estimated Development. 2002 NEI to be accurate in an absolute risk at the nearest residence and that In addition, PADEP used an oral sense. Rather, we consider them to be EPA’s census block approach may have cancer slope value from the draft TCE our best estimates of annual snapshots resulted in an underprediction of risk. document instead of the inhalation of emissions for this source category. We reviewed the risk assessment value derived in that document, and For each base year risk assessment, we prepared by the PADEP, and we extrapolated the oral cancer slope factor scale-up the modeled results to reflect disagree with their conclusion that our for use in their inhalation risk what we believe to be the true number estimated MIR risk level associated with assessment. Use of such an of facilities in the source category, the narrow tubing industry is erroneous. extrapolation is considered substantially approximately 1,900. Given our The PADEP risk assessment was based inferior to use of values developed knowledge of the NEI database and as a on ambient monitoring data collected in directly from inhalation data. PADEP’s result of meetings with industry we 2004. (PADEP continues to collect use of the draft extrapolated URE in believe that 1,900 is a better estimate of ambient data on TCE in the Collegeville, their assessment resulted in the the number of sources in the source PA, area.) From 2004 to 2007, the estimation of a maximum individual category. annual average TCE concentrations cancer risk of 160-in-1 million at the To develop an estimate of facilities measured over the 4 years ranged from Trappe site, a risk which is currently operating, EPA asked State 0.6 micrograms per cubic meter (µg/m3) approximately 50 times higher than and EPA regional source category to 1.5 µg/m3 (avg. = 0.9 µg/m3) at the what the EPA risk assessment indicates contacts for estimates of the number of Evansberg, PA site and 1.2 µg/m3 to 1.3 for that location. Thus, while both risk cleaning machines in their jurisdictions. µg/m3 (avg. = 1.3 µg/m3) at the Trappe, assessments are consistent with respect As a result of that effort, EPA concluded PA, site. We extended our risk to the estimates of ambient TCE that there were 3,821 halogenated assessment, which was based on concentrations around these monitoring solvent cleaning machines nationwide. dispersion modeling of TCE emissions sites, there is a significant difference in EPA also determined that there was on from the two Collegeville, PA, the estimation of individual cancer risk. average about two machines per facility, halogenated solvent cleaning facilities The difference results from PADEP therefore, EPA estimated a total of 1,932 in the 2002 NEI emissions inventory, to using a cancer potency value that would solvent cleaning facilities currently estimate TCE concentrations of 0.8 µg/ not be considered acceptable under existing nationwide. Therefore, for the m3 and 1.4 µg/m3 at the Evansberg and EPA’s Information Quality Guidelines development of this rule, the number of Trappe monitoring sites, respectively. because it did not withstand a rigorous sources in this source category was Thus, from an ambient air concentration scientific peer review. assumed to be about 3,800 cleaning perspective, the two risk assessments Several petitioners stated that the machines located at 1,900 facilities are consistent. The risk assessments EPA’s decision to use available data nationwide. This estimate is based on differ, however, because TCE exposures from the 2002 NEI, instead of data from information collected by EPA in 1998 were assessed using different cancer the 1999 NEI as proposed, appeared for and in 2005. If the scale-up had not unit risk estimates (URE) for TCE. the first time in the Halogenated Solvent been implemented the cost and HI Following the long-established EPA Cleaning rule, making it impracticable results would be reduced by 56 percent policy, we used the California EPA to raise objections during the period (given that the scale-up factor is 1.76) (CalEPA) inhalation URE for TCE. In provided for public comment. relative to the number of facilities and contrast, PADEP used a unit risk value Based on public comments on our may not truly represent the affected for TCE developed by EPA in a draft August 2006 Proposal, our risk universe. We request comment on the report issued in 2001. That draft report assessment for the entire source use of the scale-up to accurately was subjected to peer review by the category that was presented in the represent the universe of sources. EPA’s Science Advisory Board, and the Halogenated Solvent Cleaning rule used In addition, the Johnson and Capel Board raised several important issues. the 2002 NEI database instead of the (1992) population mobility model,13 As a result of the Science Advisory 1999 NEI database as presented at used to develop the population risk Board’s input on the draft report, EPA proposal. The 2002 NEI database was distribution for the Halogenated Solvent asked the National Academy of Sciences unavailable at proposal. Further, since Cleaning rule, was updated subsequent (NAS) to examine issues critical to receipt of the petitions, we have to promulgation of that rule. The developing an objective, realistic, and conducted additional risk assessments updated model reflects the use of more scientifically-based health assessment of using facility emissions from both the recent Surveys of Income and Program TCE. The NAS released their report in 1999 and 2002 NEI, explicitly assessing the risks separately for each of the 13 Ted Johnson and Jim Capel. 1992. A Monte are granting reconsideration in this rule, we invite industry sectors identified above at Carlo Approach to Simulating Residential petitioners to submit the documents to EPA during various levels of control, similar to our Occupancy Periods and Its Application to the the public comment period. We will consider such August 2006 Proposal and the General U.S. Population, EPA–450/3–92–011, U.S. documents at the same time we consider all Environmental Protection Agency, Research significant comments received during the comment Halogenated Solvent Cleaning rule. In Triangle Park, N.C. (This information has been period for this action. this way, we have been able to show the placed in the docket for this rule).

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Participation (SIPP) data and a newer, the 99 subjects were exposed primarily 1 million and (2) the total cancer more complete modeling approach. The to CFC 113. The NYS DOH assessment incidence associated with the source new model randomly selects subjects is limited by gaps in the data on category is approximately 0.55 cases per from the U.S. Census Bureau’s developmental effects and year. The updated population risk American Community Survey immunotoxicity, and concerns about distribution at baseline emission levels database,14 and estimates time already adequacy of methods for evaluating shows that 100 people are exposed to spent in the residence, future time to be health risks to children (limitations it risk levels at or above 100-in-1 million, spent in the residence, and future length shares with the CalEPA assessment). 82,000 people are estimated to have of life. These estimates are then The results of the scientific review are risks between 10-in-1 million and 100- combined to predict the total time, past described in the NYS DOH toxicological in-1 million, and 8,000,000 people are and future, that the subject would review document.16 estimated to have risks between 1-in-1 occupy the current residence. Results The CalEPA inhalation reference million and 10-in-1 million. These are then compared with SIPP residence exposure level (REL) 17 used in the risk values can be compared to the baseline time data and adjusted to compensate assessment for this proposal and our risk estimates that we presented in the for ‘‘residential inertia’’ (i.e., a tendency previous assessment was based on a Halogenated Solvent Cleaning rule, i.e., in the SIPP data for long-term residents 1973 study of 19 workers who about 25 people exposed to risks at or to have lower-than-expected move experienced symptoms of drowsiness, above 100-in-1 million, about 22,000 rates). As a result of this update to the fatigue, headache, and eye irritation. people at estimated risks between 10-in- modeling approach, the baseline CalEPA identified the use of human 1 million and 100-in-1 million risk population risk estimates in this exposure data from workers exposed level, and about 4,000,000 people at preamble differ somewhat from those over a period of years as a strength of estimated risks between 1-in-1 million presented in the Halogenated Solvent the REL. The lack of reproductive and and 10-in-1 million. Cleaning rule. This preamble (section developmental toxicity studies and the Additionally, in our previous risk III) presents risk estimates based on the lack of a no effect level were identified assessment for the Halogenated Solvent 2002 NEI. We believe the 2002 NEI is as major areas of uncertainty. Both Cleaning rule, the maximum hazard likely to provide more accurate CalEPA and NYS DOH had an external index (HI) was 0.2 (this HI is associated estimates of current emissions from the peer review process and allowed for with the compound TCA), and there source category (compared to the 1999 public comment before finalizing their were no facilities with a HI greater than NEI), reflecting known decreases in respective assessments. The NYS DOH 1. However, if we were to use the NYS solvent demand and use. assessment was finalized in 2006 and DOH air criterion for TCE mentioned Since promulgation of the the CalEPA assessment was finalized in above, rather than the CalEPA REL and Halogenated Solvent Cleaning rule, we 2000. apply the national scaling factor 18 we Non-cancer risk results were derived have also become aware of a newer estimate that there are ten facilities with using the NYS DOH TCE air criterion as assessment for non-cancer effects of TCE HI greater than 1 and a maximum HI of well as using the CalEPA value in the developed by the New York State 7. A chronic HI less than or equal to 1 additional risk assessments completed Department of Health (NYS DOH). The indicated that there is no appreciable since promulgation of the Halogenated NYS DOH states that their ‘‘air risk of adverse effects. Although, a Solvent Cleaning rule. The results of our criterion,’’ is ‘‘essentially equivalent to chronic HI greater than 1 raises concern additional risk assessments are an United States Environmental over potential toxicity, the numerical summarized in section III of this Protection Agency’s (US EPA, 2002a) magnitude of the HI must be interpreted preamble and the complete reference concentration (RfC) * * * or in the context of the supporting documentation is available in the docket an Agency for Toxic Substances and information. Thus, we examined these Disease Registry’s (ATSDR, 1996) for this rulemaking. In this action, we are providing this additional risk ten HI values greater than 1 in the chronic minimal risk level (MRL) * * * context of uncertainties and additional .’’ 15 In addition to evaluating a number analysis and are soliciting comment on it, including comments on the use of the supporting information. In the risk of studies which look at numerous assessment document used to support different toxicological endpoints, the NYS DOH air criterion. We note that we received no comments recommending the August 2006 proposal, we stated NYS DOH air criterion relies on a 1993 that the approach used then (and in all study which evaluated clinical use of the NYS DOH TCE air criterion either in comment on the proposed rule, subsequent risk analyses for this source neurological effects (as measured by category) was a reasonable one which coordination tests) in 99 Danish in comment on the NODA, or in any of the petitions for reconsideration was more likely to over-predict risks workers. For 70 of these workers, the than under-predict them. When we dominant exposure was TCE, while for submitted to the EPA. The additional risk assessment consider the distribution of the 25 of the workers the dominant population at different HI levels, we see exposure was to CFC 113. Air exposures conducted in support of this proposal reaffirms our baseline risk analysis that that out of a total exposed population of were extrapolated from measurements approximately 6 million people living of the urinary metabolite TCA. was presented in the Halogenated Solvent Cleaning rule. The results are around the ten facilities, only 2,000 Limitations of this study include some people are estimated to be exposed to uncertainty about the actual long-term summarized in Table 1, below. Specifically, the analysis confirms that: concentrations whose HI values exceed exposure levels of the workers to TCE 1. Further, when the underlying during their employment, and that 25 of (1) The baseline MIR for the entire source category is approximately 100-in- information for the NY value is considered, we see that the NYS DOH 14 U.S. Census Bureau, 2007. American Community Survey. Available online at http:// 16 NYS DOH toxicological review document. air criterion incorporates a significant www.census.gov/acs/www/. http://www.health.state.ny.us/environmental/ 15 New York State Department of Health, chemicals/trichloroethene/docs/cd_tce.pdf. 18 The 2002 NEI contained 1,080 facilities and we Trichloroethene Air Criteria Document, October 17 California EPA, 1999. Chronic toxicity estimate that there are a nationwide total of 1,900 2006, page 1, http://www.health.state.ny.us/ summary: Trichloroethylene. Office of facilities in this source category, we scale up the environmental/chemicals/trichloroethene/docs/ Environmental Health Hazard Assessment. http:// facility population by a factor of 1.76 to obtain an cd_tce.pdf. www.oehha.ca.gov/air/chronic_rels/pdf/79016.pdf. estimated total of facilities for the HI analysis.

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degree of health protection in its use of around these ten facilities whose We have not conducted any a composite uncertainty factor of 1000. exposures correspond to HI values additional assessment of environmental The range of maximum HI values (0.2 to above 1, and the health-protective risks for this source category. The record 7) resulting from consideration of factors inherent in the derivation of the established in the Halogenated Solvent reference values from both CalEPA and NY central nervous system value, we Cleaning rule is sufficient to conclude NYS DOH is indicative of the range of conclude that the chronic non-cancer that ‘‘no adverse environmental effects,’’ uncertainty in the toxicity estimates for risks estimated around these ten as defined in CAA section 112(a)(7), are TCE. When the NYS DOH value is used, facilities using the NY criteria value and associated with the emissions from the maximum HI is 7; however, when associated with the baseline scenario these sources. After considering all of the CalEPA value is used, the maximum are, in this case, acceptable. We are these health risk measures and factors in HI becomes 0.2 and the 0.2 value is no seeking comment on whether the this action, we are again concluding that longer driven by TCE emissions, but by scaling factor applied to the narrow the risks associated with the 1994 TCA emissions. Thus, considering that tubing facilities and population NESHAP are acceptable. our models would tend to overestimate exposed, as discussed earlier, is risk, the limited number of people living appropriate in this case.

TABLE 1—ESTIMATED BASELINE CANCER RISK, POPULATION RISK DISTRIBUTION, AND ESTIMATED NUMBER OF FACILITIES AT VARIOUS RISK LEVELS USING NEI 2002 DATA: SCALED TO NATIONAL LEVEL—ALL HALOGENATED SOLVENT CLEANING FACILITIES

Baseline Cancer risk results no control

Estimated maximum individual lifetime cancer risk (per million) 1 ...... 100 Estimated annual cancer incidence 2 ...... 0.55

Estimated lifetime cancer risk (per million) # persons

100 ≥ 10 to < 100 ...... 82,000 ≥ 1 to < 10 ...... 8,000,000 Total Pop ≥ 1 ...... 8,082,100

Total Population Living within 50 km of any Halogenated Solvent Cleaner ...... 200,000,000

Estimated lifetime cancer risk (per million) # facilities

9 ≥ 10 to < 100 ...... 86 ≥ 1 to < 10 ...... 394 < 1 (only carcinogen emitters) ...... 802 < 1 (including sources emitting non-carcinogens) 3 ...... 1,411

Estimated total number of facilities 4 ...... 1,900 1 Estimated maximum individual lifetime cancer risks are rounded to one significant figure. 2 Estimated annual cancer incidence and population counts have been rounded to two or three significant figures where appropriate. 3 Includes facilities with cancer risk < 1 plus 609 (346 scaled up) of the Year 2002 facilities that emit only the non-carcinogen 1,1,1-trichloro- ethane (TCA). 4 Represents the total number of facilities in this category. This facility count should equal the sum of facilities with any MIR greater than or equal to 1 and the number of facilities with less than 1 (including sources emitting non-carcinogens).

B. Decision on Ample Margin of Safety 1. What is the approach used in making Several petitioners contend that our the ample margin of safety finding for facilities that manufacture Petitioners raised a number of issues determination? narrow tubing that the 1994 NESHAP related to the approach and information provides an ample margin of safety to that we used in making the ample Petitioners raised a number of issues protect public health is arbitrary and margin of safety determination in the pertaining to EPA’s overall approach to capricious because it rests on an Halogenated Solvent Cleaning rule. In conducting ample margin of safety ‘‘erroneous assumption that the MIR the following sections we summarize analyses and making ample margin of from (narrow tubing) facilities is 70-in- and address these issues. In addition, safety determinations, and we address 1 million’’ given that PADEP risk data the following sections present these issues in this section of the indicated risks of 160-in-1 million regulatory options that we are proposing preamble. The petitioners also raise a associated with the same facilities in the in this action, as well as health number of points directed at EPA’s Collegeville, PA area. As discussed in information, cost information, and other obligations and discretion under the the previous section, we believe that the relevant factors that support an ample CAA, as well as our exercise of those PADEP risk assessment is in error, and margin of safety analysis for those obligations and that discretion. Issues instead rely on our estimated baseline options. Finally, this section provides raised by petitioners that pertain to MIR for the narrow tubing industry of reasons why EPA might choose one more specific topics or analyses related 70-in-1 million. One petitioner also option over another in our final action. to our ample margin of safety contended that ‘‘(d)espite the principle determination are addressed later in this articulated by EPA in the Benzene notice. NESHAP that residual risk standards

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should ‘protect the greatest number of 1077, 1083 (D.C. Cir. 2008), which estimates of cost or cost-effectiveness persons possible to an individual stated: are within the range of those for options lifetime risk level no higher than * * * subsection 112(f)(2)(B) expressly rejected in the Halogenated Solvent approximately 1-in-1 million,’ ’’ the incorporates EPA’s interpretation of the Cleaning rule. For example, Petitioners Halogenated Solvent Cleaning rule Clean Air Act from the Benzene standard, assert that a $3,600/ton cost- failed to demonstrate that it reduced complete with a citation to the Federal effectiveness is well within range of risk in this manner. Petitioners further Register. In that rulemaking, EPA set forth its cost-effectiveness that the EPA has claim that consideration of cost- standard for benzene ‘‘at a level that provides found acceptable in the past for less effectiveness of controls in making an an ‘ample margin of safety’ in consideration toxic pollutants. Petitioners also ample margin of safety finding is of all health information * * * as well as question why a cost-effectiveness of other relevant factors including costs and $3,400/ton and $2,000/ton for facilities unlawful and does not conform to the economic impacts, technological feasibility, Benzene NESHAP approach. For and other factors relevant to each particular that use continuous web cleaning example, one petitioner stated that decision.’’ 54 FR 38045. (Emphasis in machines and aerospace manufacturing ‘‘EPA claims that ‘incremental’ original). and maintenance facilities, respectively, reductions in risk that would result is not reasonable. Petitioners further In discussing the second step of the from the 40,000 kg/yr instead of the contend that a cost-effectiveness of ample margin of safety analysis in the 60,000 kg/yr are not cost-effective.’’ $520/ton and annualized costs of $1.2 Benzene NESHAP, the EPA stated that Petitioners argue that cost and cost- million for the proposed 25,000 kg/yr other relevant factors, aside from cost effectiveness are different concepts and MC equivalent limit and $74/ton and and feasibility, could include, but are CAA section 112(f)(2)(B) does not annualized costs of $130,000 for the not limited to, impact on the national contemplate basing the ample margin of proposed 40,000 kg/yr MC equivalent economy, small business impacts, cost- safety analysis on cost-effectiveness. limit are well within the range of costs effectiveness, incremental cost- The petitioner stated that EPA’s reliance the EPA has found acceptable in the effectiveness, or net benefits. Indeed, on cost-effectiveness changes the past. Some petitioners also contend that with regard to the consideration of cost- inquiry from whether the residual risk the EPA failed to calculate costs of 30 effectiveness and incremental cost- standards provide an ample margin of percent TCE reduction as indicated in effectiveness, the Benzene NESHAP safety to protect public health, as response to comments at proposal by states that: intended by Congress, to a far more one facility that manufactures narrow discretionary inquiry of whether Because the court (in Vinyl Chloride) has tubing. controls measures are cost-effective. specifically sanctioned the consideration of The EPA’s rationale supporting its costs as well as feasibility of controls, it is ample margin of safety decision was set Petitioners claim that CAA section clear that Vinyl Chloride does not require forth in the Halogenated Solvent 112(f)(2)(B) does not contemplate basing imposition of the maximum feasible controls Cleaning rule. Consistent with the the ample margin of safety analysis on without regard to cost or effectiveness. (54 FR Benzene NESHAP, after determining cost-effectiveness, suggesting that EPA 38057). that risks were acceptable, the EPA inappropriately and impermissibly The EPA further stated in the Benzene weighed the health information considered cost-effectiveness as well as NESHAP that: evaluated in the acceptability incremental cost-effectiveness (as determination and other relevant factors opposed to just cost) in making our * * * EPA concluded that all the relevant as specified in the Benzene NESHAP to ample margin of safety determination. health, technological and economic information should be considered in making determine the appropriate level of EPA disagrees with the petitioners the ample margin of safety decision. control to provide an ample margin of and contends that the CAA Accordingly, EPA rejects the position that the safety (e.g., see excerpts from the EPA’s contemplates consideration of cost- maximum feasible control technologies analysis in the Halogenated Solvent effectiveness in ample margin of safety should be applied in all cases and accepts the Cleaning rule, below). As noted above, determinations. The Benzene NESHAP, position that an analysis of incremental risk the Benzene NESHAP is inherently and which is incorporated into CAA section reduction benefits versus incremental costs necessarily flexible regarding what 112(f)(2) by reference, explains that in of additional controls be performed to help factors the EPA might consider, and the second step of the ample margin of determine if additional control is warranted. (54 FR 38061). how they might be weighed, in our safety analysis we consider all of the ample margin of safety analysis, stating health risks and other health Based on the foregoing, the EPA can that ‘‘* * * EPA believes the relative information considered in the first consider, among other things, cost- weight of the many factors that can be step—determining what level of risk is effectiveness and incremental cost- considered in selecting an ample margin acceptable. The Benzene NESHAP goes effectiveness in the second step of the of safety can only be determined for on to explain that in the second step; in ample margin of safety decision. each specific source category. This the ample margin of safety decision, we Petitioners contend that even if CAA occurs mainly because technological consider additional factors relating to section 112(f)(2)(B) allows for and economic factors (along with the the appropriate level of control, consideration of cost-effectiveness, the health-related factors) vary from source including costs and economic impacts EPA failed to provide a reasoned category to source category.’’ (54 FR of controls, technological feasibility, explanation supporting its cost 38061). uncertainties and other relevant factors. conclusions in the Halogenated Solvent Concerning the petitioners’ assertion To reiterate, in the second step of the Cleaning rule. In particular, the that the EPA did not explain why the ample margin of safety determination, petitioners argue that the EPA has not magnitude of certain cost and cost- we adopt standards at the level that explained why the cost and cost- effectiveness values that supported the provides an ample margin of safety to effectiveness values estimated by the EPA’s decision were unacceptable, and protect public health. That level may be EPA for options that were assessed in the petitioner’s contention that these equal to or more stringent than the the rule, but ultimately rejected, were values are in fact similar to values acceptable risk level. The EPA’s unacceptable. Petitioners also contend estimated for other pollutants in authority to consider such factors was that in the past the EPA has previous rulemakings, the EPA affirms affirmed in NRDC v. EPA, 529 F.3d. promulgated other rules where that we conducted our analysis in

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accordance with the framework at the 25,000 kg/yr and 40,000 kg/yr emission than approximately 1 in 10 thousand established in the Benzene NESHAP. levels. The incremental reduction in * * *’’ (54 FR 38044–38045). The With regard to comparing cost or cost- emissions with a 40,000 kg/yr level instead Benzene NESHAP continues with an of 60,000 kg/yr imposes an incremental cost effectiveness values to values in past of $1.5 million per year. The incremental cost explicit statement that rules, the EPA points out that the per ton of this reduction is roughly $9,000/ ‘‘(i)mplementation of these goals is by Benzene NESHAP specifically ton. means of a two-step standard-setting discourages such a practice: ‘‘(EPA) Moreover, in comparing the 40,000 kg/yr approach’’ (54 FR 38045), which the notice does not intend to use ‘bright-line’ cost- and the 60,000 kg/yr emission limits, the explains further in greater detail. As effectiveness ratios to make the ample incremental cost per cancer case avoided, described in this preamble (and in the margin of safety decision but rather will $73 million/case, is substantial, supporting Halogenated Solvent Cleaning rule), the EPA consider such information with all the our conclusion that the $60,000 kg/yr has implemented the two-step standard- emission limit provides an ample margin of other relevant information available for setting approach to achieve these goals. As an safety consistent with the Benzene NESHAP. additional note, the EPA points out that the this decision.’’ (54 FR 38061). Further, (72 FR 25145) Benzene NESHAP is unambiguous that as explained above, the Benzene Moreover, contrary to the petitioners’ ‘‘* * * it is clear that * * * (the court) does NESHAP provides that the ample claims, an analysis such as the one we not require imposition of the maximum margin of safety analysis is a category- provided in the Halogenated Solvent feasible controls without regard to cost or specific determination (‘‘the relative effectiveness’’ (54 FR 38057). Cleaning rule is consistent with, and weight of the many factors that can be more comprehensive than, similar Petitioners further claim that considered in selecting an ample margin analyses presented in the Benzene category-wide residual risk standards of safety can only be determined for NESHAP. For example, one ample must be set for the entire source each specific source category’’) margin of safety analysis in the Benzene category, but that the EPA’s rule reflecting the consideration of a number NESHAP offered the conclusion that: exempted certain machines. First, the of factors, all of which may be weighed * * * this control option will reduce EPA would like to reiterate that we did differently for different source not ‘‘exempt’’ machines in our categories such that comparisons of the benzene emissions by 70 to 90 Mg/yr, which represents less than an additional one Halogenated Solvent Cleaning rule. The magnitudes of factors are rendered percent reduction over the uncontrolled EPA implemented the statutorily- meaningless. level. The cost of this additional emission mandated two-step Benzene NESHAP The EPA also clearly explained how reduction (and consequent risk reduction) framework and ultimately re-adopted we determined ample margin of safety would be about $200,000/yr (1982 dollars). the 1994 NESHAP for certain segments and why the minimal risk reductions While this additional cost is small, it is of the source category. Our authority to disproportionately large in comparison to the achieved by the options we ultimately re-adopt the NESHAP in our residual rejected in the Halogenated Solvent small additional emission and risk reduction achieved. (54 FR 38050) risk rulemaking was recently affirmed Cleaning rule did not warrant the by the United States Court of Appeals While it is ultimately irrelevant (for the disproportionate costs. For example, in for the District of Columbia Circuit in reasons stated above), the EPA notes addition to other detailed results, we NRDC v. EPA, 529 F.3d 1077 (D.C. Cir. that annualized costs rejected in the stated in the Halogenated Solvent 2008). In that case, the court stated that Benzene NESHAP itself—$200,000 per Cleaning rule that: ‘‘If EPA determines that the existing year in 1982 dollars, or approximately The finding regarding an ‘ample margin of technology-based standards already $430,000 19 per year in 2007 dollars— safety’ is based on a consideration of the provide an ‘ample margin of safety,’ are even less than the cost estimates for relatively small reductions in health risks then the agency is free to readopt those likely to result from the feasible emission options that the EPA rejected that are reductions we evaluated, the additional costs cited by the petitioners (e.g., see above standards during a residual risk required to achieve further control, the lack where the petitioner cites $600,000; rulemaking.’’ In this rule, we have of technically feasible control options for $630,000, and $700,000 per year). adhered to the two-step approach set these sectors, and the time required to Petitioners cite to the Benzene forth in the Benzene NESHAP, and we comply with any requirements. (72 FR NESHAP, arguing ‘‘that residual risk are proposing a range of regulatory 25146) standards should ‘protect the greatest options. and number of persons possible to an 2. Overview of Options Examined Therefore, we believe that a requirement individual lifetime risk level no higher Similar to the approach taken in our for these facilities to meet a 100,000 kg/yr than approximately 1-in-1 million.’ ’’ August 2006 Proposal and discussed in MC equivalent emission limit is technically Petitioners focus, however, on one facet the Halogenated Solvent Cleaning rule, feasible, provides an annual and long-term of the Benzene NESHAP in isolation, we have evaluated a range of regulatory cost savings, provides an ample margin of without accounting for the fact that the safety to protect public health and prevents options and have assessed the residual EPA evaluates various factors as part of adverse environmental effects. (72 FR 25145) risk reductions that could be achieved if the ample margin of safety post-MACT HAP emissions were and determination. Specifically, the Benzene controlled further. These options After considering revisions to the risk and NESHAP states that ‘‘* * * EPA strives incorporate MC equivalent based cost estimates presented at proposal, we to provide maximum feasible protection emission limits because we continue to believe that the 60,000 kg/yr MC equivalent against risks to health from hazardous believe that such emission limits (e.g., emission limit for those halogenated solvent air pollutants by (1) protecting the cleaning machines not identified as being in as promulgated in the Halogenated greatest number of persons possible to use by one of the four sectors discussed in Solvent Cleaning rule that is the subject an individual lifetime risk level no section II, above, protects public health with of this reconsideration) may provide an higher than approximately 1 in 1 an ample margin of safety and prevents opportunity for additional risk million and (2) limiting (maximum adverse environmental effects. Specifically, reduction. These options were derived the 60,000 kg/yr level reduces 90 percent of individual risk, the MIR) to no higher the HAP emissions reduced at the 40,000 kg/ from information on the availability and yr level. The 60,000 kg/year emission limit 19 Escalation in costs is calculated using the feasibility of specific emission control achieves reductions in MIR and cancer CPI–U (ftp://ftp.bls.gov/pub/special.requests/cpi/ technologies or practices, and are incidence that are similar to those expected cpiai.txt). expressed as maximum facility-wide

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emission limits and requirements that halogenated solvent cleaning machines feasible. Additionally, section III would apply to the total emissions from used by aerospace manufacturing and discusses human health risks and costs all of a facility’s solvent cleaning maintenance facilities, we are proposing associated with these options. Similar to machines that are subject to the 1994 to re-adopt the 1994 NESHAP under our August 2006 Proposal and our May NESHAP. This proposal also reflects our CAA section 112(f)(2) because we are 3, 2007 final rule, we have also re- investigations of information received proposing that the current level of examined and re-evaluated the impacts subsequent to promulgation of the control called for by the 1994 NESHAP to small businesses associated with the Halogenated Solvent Cleaning rule and reduces HAP emissions to levels that alternative emission limits based on our belief based on that information that present an acceptable level of risk, supporting information from the certain emission limits could be provide an ample margin of safety to Halogenated Solvent Cleaning rule achieved through both solvent protect public health, and prevent any (contained in the docket for that rule) switching and traditional technologies adverse environmental effects. (This and information we received after and practices for some sectors of the option represents the standards promulgation of the Halogenated category. We have produced additional promulgated in the Halogenated Solvent Solvent Cleaning rule. Our discussion of risk and cost analyses to support the Cleaning rule.) the small business impacts of this action evaluation of these proposed regulatory ii. Proposed Option 2 are presented in section VI of this options. preamble. We recognize that some commenters A 60,000 kg/yr MC equivalent limit Several petitioners contend that we may either endorse aspects of one or would be applicable to sources did not evaluate all of the control associated with the general population more of the proposed regulatory options options provided in response to our of halogenated solvent cleaning or advocate for a combination of the August 2006 Proposal and subsequent machines and halogenated solvent options in ways other than presented in NODA. However, the EPA did carefully cleaning machines used by facilities that this proposal. Specifically, comments evaluate specific comments from manufacture narrow tubing. A 100,000 that we receive may lead us to conclude commenters on costs, on results, on kg/yr MC equivalent limit would be that the most appropriate regulatory technical compatibility with products applicable to halogenated solvent approach would be one that combines and technical feasibility. While cleaning machines located at military sector-specific alternatives from commenters identified specific control maintenance and depot facilities. With different options. This proposal seeks to options, most indicated implementing respect to facilities that use continuous allow such an approach by providing such controls were not feasible because the risk (Table 3, section III) and cost web cleaning machines, and of physical limitations of the facility or (Table 5, section III) estimates that halogenated solvent cleaning machines the proposed compliance timeframes. correspond to each of the sector-specific used by aerospace manufacturing and alternatives that make up the broader maintenance facilities, we are proposing Petitioners also provided information options (Options 1, 2, and 3) we are to re-adopt the 1994 NESHAP under indicating that certain manufacturers in proposing. The estimated risk CAA section 112(f)(2) because we are the narrow tube industry, after the close reductions and associated costs for proposing that the current level of of the comment period for our August Options 1, 2 and 3 are presented in control called for by the 1994 NESHAP 17, 2006 proposal, either instituted or Tables 2 and 4 below. This approach reduces HAP emissions to levels that began planning the installation of differs from our August 2006 Proposal present an acceptable level of risk, various control measures that would where we explicitly solicited comments provide an ample margin of safety to have achieved the emission limitations on only two co-proposed options, protect public health, and prevent any that the EPA co-proposed in August although we had also developed six adverse environmental effects. 2006 and contend that this information emission levels to evaluate reductions was of central relevance to the outcome in residual risk if post-MACT emissions iii. Proposed Option 3 of the Halogenated Solvent Cleaning (i.e., baseline emissions) were A 60,000 kg/yr MC equivalent limit rule. Petitioners further contend that we controlled further from this source would be applicable to sources excluded available alternative control category. Thus, we are soliciting associated with the general population measures without providing an comments on options 1 through 3, and of halogenated solvent cleaning explanation in the Halogenated Solvent any combination of the proposed sector- machines and halogenated solvent Cleaning rule, that we frequently set specific options identified in this cleaning machines used by facilities that technology-forcing standards, and that proposal. Our decision on the final manufacture narrow tubing. A 100,000 recognizing the responses by the regulatory approach will reflect the kg/yr MC equivalent limit would be affected industries regarding comments we receive. The options are applicable to halogenated solvent compliance difficulty is not an excuse summarized below: cleaning machines used by aerospace for our failure to set a standard. In the manufacturing and maintenance May 3, 2007 rule, the EPA set a final i. Proposed Option 1 facilities and halogenated solvent standard according to section 112(f)(2) A 60,000 kg/yr MC equivalent limit cleaning machines located at military and 112(d)(6) and provided would be applicable to sources maintenance and depot facilities. explanations for that final standard. In associated with the general population Facilities that use continuous web response to the petitioners comment on of halogenated solvent cleaning cleaning machines that exceed 60,000 setting technology-forcing standards, the machines. A 100,000 kg/yr MC kg/yr MC equivalent HAP emissions EPA is bound by CAA section 112(f)(2) equivalent limit would be applicable to would have to achieve 80 percent to make an ample margin of safety halogenated solvent cleaning machines overall control efficiency for those units. decision according to the Benzene located at military maintenance and NESHAP and not to extend this depot facilities. With respect to facilities 3. How Did the EPA Establish the authority in setting technology-forcing that use continuous web cleaning Proposed Regulatory Options? standards. In summary, petitioners machines, halogenated solvent cleaning This section describes our contend that the requirements machines used by facilities that determination that the above proposed promulgated in the Halogenated Solvent manufacture narrow tubing, and regulatory options are technically Cleaning rule were not a logical

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outgrowth of the August 2006 Proposal machines must control emissions at industry, through their comments, and December 2006 NODA. both entry and exit points. These indicated that there was inadequate As part of this reconsideration effort, comments from some facilities that use research available to the industry to we have re-analyzed our conclusions on continuous web cleaning machines warrant solvent switching. They risk, cost, technical feasibility, and suggested that their emission capture indicated the research, design and compliance deadlines made in the systems could be modified within a 3- implementation could not be Halogenated Solvent Cleaning rule. In year period to achieve an 80 percent accomplished within the EPA’s this action and in response to the overall control efficiency, over proposed compliance period and would petitions we reassessed the regulatory uncontrolled emission levels. Control exceed the EPA’s proposed costs. options for halogenated solvent cleaning efficiency requirements rather than • Petitioners also cite responses machines used by facilities that straight emission limits are a preferable indicating the ability of one particular manufacture narrow tubing, aerospace approach for expressing emission facility to reduce TCE emissions from manufacturing and maintenance, limitations for facilities that use 68.4 tons per year (tpy) to 52 tpy. The military maintenance and depot continuous web cleaning machines, EPA considered this comment in facilities, facilities that use continuous which is the same conclusion that we developing our final rule (see 72 FR web cleaning machines, and for all other made in the final Halogenated Solvent 25154) and concluded that the industry, halogenated solvent cleaning machines Cleaning rule. In this action, we also are through their comments, was unable to that are not included in these named soliciting comments on whether CAD or research, design and implement the sectors. emission capture systems operating at necessary technological controls within This proposal is based on supporting high efficiency would provide an the compliance period and EPA’s data and information from the opportunity for facilities that use proposed costs. Petitioners further argue Halogenated Solvent Cleaning rule continuous web cleaning machines to that we should have investigated the (contained in the docket for that rule) control up to 80 percent of their feasibility of establishing a 100,000 kg/ and data and information received since emissions. We note that although the yr MC equivalent emission limit given promulgation of the Halogenated final Halogenated Solvent Cleaning rule the response of one facility that Solvent Cleaning rule. Data and also considered, but ultimately rejected, manufactures narrow tubing indicating information received since such an option, the option in today’s the ability to meet this level within five promulgation of the Halogenated proposal (described in more detail years of promulgation. The EPA did not Solvent Cleaning rule indicates the below) would restrict this requirement develop this option for two reasons: availability of control measures that to facilities emitting over 60,000 kg/yr First, Congress limits the EPA’s ability would enable certain facilities in the MC equivalent HAP emissions. to impose compliance periods that narrow tube industry and certain exceed three years, and, second, the facilities that use continuous web i. Narrow Tube Manufacturing Facilities industrial sector commented that they cleaning machines to achieve HAP Petitioners contend that we failed to simply could not implement the emission reductions that we did not consider and evaluate various necessary technology within the 3-year believe feasible when we finalized the compliance options for the facilities that compliance period permitted by Halogenated Solvent Cleaning rule. In manufacture narrow tubing despite Congress and within the cost parameters some cases, this proposal reflects a re- responses and comments we received the EPA assumed in the August 17, 2006 evaluation of the information on on both our August 17, 2006 proposal proposal. availability of control measures that we and NODA. Specifically: received in response to both the August • Petitioners cite comments and Subsequent to promulgation of the 17, 2006 proposal and subsequent responses to both the August 17, 2006 Halogenated Solvent Cleaning rule, NODA, in light of information that we proposal and the subsequent NODA Petitioners provided information to the received since we promulgated the from several facilities that manufacture EPA indicating that this industrial Halogenated Solvent Cleaning rule. narrow tubing indicating the likelihood sector may, in fact, be capable of As in the final Halogenated Solvent of 25 percent TCE emission reductions complying with the co-proposed limits Cleaning rule, today’s proposal through installation of CAD and a in our August 17, 2006 proposal within recognizes that certain facilities might capture and control system. The EPA the 3-year compliance period provided be able to use control measures that considered this comment in our final in the Halogenated Solvent Cleaning include retrofit technologies, such as a rule (see 72 FR 25154) and concluded rule. Petitioners also provided carbon adsorption device (CAD), and that while reductions may be obtained, information indicating that subsequent vacuum-to-vacuum machines, switching the industry, through their comments, to the close of the comment period of from HAP to non-HAP solvents, such as was unable to research, design and the Halogenated Solvent Cleaning rule n-propyl bromide (nPB), changes to the implement the necessary technological various facilities that manufacture manufacturing process, and instituting controls within the compliance period narrow tubing either installed control emission reduction programs. Further, and the EPA’s proposed costs. devices or were in advanced planning this proposal recognizes and reflects the • Petitioners cite responses by stages to install control devices that differences between facilities that use various facilities that manufacture would enable them to achieve either of continuous web cleaning machines and narrow tubing indicating an ability to our August 17, 2006 co-proposed batch cleaning machines, and achieve emission reductions ranging emission limits. Specifically, acknowledges comments on the August from either 25–35 percent or 50–95 subsequent to promulgation of the 2006 Proposal and subsequent NODA percent through installation of emission Halogenated Solvent Cleaning rule, one indicating that control efficiency control devices and changes in facility that manufactures narrow tubing requirements rather than straight production processes. The EPA has installed vacuum-to-vacuum emission limits are a preferable considered this comment in developing machines. Two other facilities that approach for expressing emission our final rule and concluded that while manufacture narrow tubing have limitations for facilities that use reductions may be obtained through switched from solvent HAP to a non- continuous web cleaning machines solvent switching and installation of HAP, nPB. One of these two facilities because continuous web cleaning controls, the narrow tube manufacturing also indicated an ability to achieve eight

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percent and 22 percent TCE emission year compliance period. Some facilities facilities indicated was not possible— reductions through reconfiguration of that manufacture narrow tubing also and include: two flush degreasers and use of described their halogenated solvent • Installing CAD and vacuum-to- reformulated materials, respectively.20 cleaning machines as unique due to vacuum machines (installed by the Petitioners also provided information their large size and capacity and facilities that manufacture narrow indicating that the other of the two indicated the non-availability of tubing that indicated uniqueness of facilities was in advanced installation vacuum-to-vacuum machines as a their halogenated solvent cleaning stages for CAD and a capture and result. machines due to size, in their comments control system that would likely achieve on the August 17, 2006 proposal), As explained above, subsequent to • 30 percent TCE reduction. This our evaluation of these comments, we Switching to nPB (a non-HAP information and supporting solvent), and issued a NODA that requested • documentation have been placed in the additional information on costs, Manufacturing process changes docket for this rulemaking. compliance deadlines and technical such as cleaning smaller bundles of As explained earlier, our August 17, feasibility for halogenated solvent tubes and/or allowing product to remain in the machine for a longer duration to 2006 proposal would have required all cleaning at facilities that manufacture allow complete condensation of the owners and operators of all halogenated narrow tubing. In response, most solvent vapors before removal. solvent cleaning machines to comply facilities that manufacture narrow with either 25,000 kg/yr or 40,000 kg/yr tubing reiterated and expanded upon These accomplishments are applauded MC equivalent facility-wide emission the reasons why they were unable to by the EPA, yet appear to be in direct limit. We assumed compliance with comply with the 25,000 kg/yr and conflict with the comments submitted these limits could be achieved by 40,000 kg/yr MC equivalent co-proposed on the August 17, 2006 proposal and installation of control technologies, limits due to technological factors, costs subsequent NODA. We are also aware that at least four such as vacuum-to-vacuum machines and compliance deadline constraints. facilities would not need to install any and CAD, and switching solvents, either The facilities that manufacture narrow additional controls in order to comply from PCE to TCE or TCE to MC. We also tubing did, as noted by the petitioners with these proposed regulatory options. assumed compliance would be achieved and described at the beginning of this The remaining nine facilities continue through retrofit technologies such as section, outline those emission to use HAP solvents and operate in freeboard ratios, working mode covers reduction measures they believed they accordance with the 1994 NESHAP. We and freeboard refrigeration devices. In could achieve. Because we were commenting on our August 17, 2006 believe the techniques and technologies persuaded by their assertions, we found, employed by the four facilities that proposal, various facilities that after re-evaluating risks, associated manufacture narrow tubing indicated manufacture narrow tubing may be used compliance costs and availability of by the remaining facilities to achieve that further HAP control that would be control measures, that the 1994 required by the co-proposed standards further emission reductions to comply NESHAP both reduces risk to acceptable with the emission limit of 60,000 kg/yr would likely be achieved only through levels and provides an ample margin of installation of expensive technology, MC equivalent. safety to protect public health for In light of the information that was and that such technologies had yet to be halogenated solvent cleaning machines proven either effective or reliable for otherwise not available to the EPA at the used by facilities that manufacture time of promulgation of the Halogenated their manufacturing processes. They narrow tubing. In the final Halogenated also expressed concerns over the Solvent Cleaning rule, we have Solvent Cleaning rule the EPA also reviewed and revised our conclusions proposed compliance period. considered, but ultimately rejected in Additionally, several facilities that on technical feasibility, the compliance our ample margin of safety analysis, a deadline and compliance costs manufacture narrow tubing that use PCE compliance option that would have indicated that solvent switching was an associated with meeting the August 17, required a 10 percent reduction in HAP 2006 co-proposed limits. With the unsuitable compliance option because emissions from facilities that they were bound to their customers’ activities completed by these facilities manufacture narrow tubing. We that manufacture narrow tubing, we procedural requirements for the higher believed this reduction could feasibly be vapor temperature of PCE and thus, that believe that the remaining facilities that achieved by facilities that manufacture manufacture narrow tubing nationwide, both TCE and MC, which have lower narrow tubing within the compliance vapor pressure temperature, would be most with lower total emissions than period through installation of side the facilities mentioned above, could inadequate for proper cleaning. chambers, however the estimated risk Although some facilities that achieve reductions in emissions within reductions were small in comparison to a 2-year compliance period and at a manufacture narrow tubing indicated the cost. the possibility of switching solvents potentially reasonable cost. Therefore, We are now aware, however, that from TCE to nPB, they also stated that as discussed in section III of this since promulgation of the Halogenated it had yet to be proven as a degreaser Preamble, we are proposing two Solvent Cleaning rule, at least four out and thus, had yet to be approved as an regulatory options that would be of 17 facilities that manufacture narrow alternative solvent by many original applicable to halogenated solvent tubing have either implemented or equipment manufacturers. They further cleaning machines in use at facilities instituted plans to install control indicated that such approval processes that manufacture narrow tubing. We are measures and HAP reduction would likely be beyond the proposed 2- soliciting comments on the proposed techniques that would likely achieve regulatory options as they relate to 20 EPA notes that in this case the facility’s permit either of the August 17, 2006 co- facilities that manufacture narrow does not identify a specific reformulated material proposed limits, i.e., 25,000 kg/yr and tubing. that would be used to achieve 22 percent TCE 40,000 k/yr MC equivalent limits. These emissions reduction. In addition, materials control measures and HAP emission ii. Aerospace Manufacturing and reformulation specified in the facility’s permit Maintenance Facilities could be implemented to reduce TCE emissions reduction techniques have been from an activity that is not in the source category implemented within the compliance Petitioners contend that the addressed in today’s notice. period—which earlier comments by the Halogenated Solvent Cleaning rule does

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not provide any explanation as to why 100,000 kg/yr and 250,000 kg/yr MC aerospace manufacturing and vacuum-to-vacuum technology and equivalent levels for aerospace maintenance facilities. retrofit technologies such as freeboard manufacturing and maintenance, but iii. Continuous Web Cleaning ratios, working mode covers and rejected these options based on our Machines 21 freeboard refrigeration devices cannot conclusion that they were either not be used by aerospace manufacturing and cost-effective or the costs were Petitioners also allege that the EPA maintenance facilities. One petitioner disproportionate given the emission failed to provide any explanation as to stated that there was no explanation for reductions achieved. We also rejected why several alternative reduction the rejection of vacuum-to-vacuum these options because the industry measures, such as either vacuum-to- technology as a control option for strongly indicated necessary emission vacuum machines or solvent switching aerospace manufacturing and control actions could not be achieved are not available control options for maintenance facilities even though the within the compliance timeframe. facilities that use continuous web Halogenated Solvent Cleaning rule Additionally, similar to the facilities cleaning machines. indicated that such technology was in that manufacture narrow tubing, we As explained earlier, in response to use by ‘‘similar’’ aerospace were persuaded by the industry’s both our August 17, 2006 proposal, and manufacturing and maintenance responses and information, and after our subsequent NODA, the EPA received facilities. re-evaluation of compliance costs, significant comments from some In response to both our August 17, technical feasibility and risks, we facilities that use continuous web 2006 proposal, and subsequent NODA, determined that the current level of cleaning machines identifying aerospace manufacturing and control provided by the 1994 NESHAP numerous compliance issues presented maintenance facilities indicated an for the aerospace manufacturing and by the co-proposed limits. Responses inability to comply with our co- maintenance industry both reduces HAP included that switching from either PCE or TCE to MC was not an available proposed limits due to technical emissions to levels that present an compliance option due to the fact that infeasibility, associated compliance acceptable risk and provides an ample MC is incompatible with certain metals, costs and the limited proposed margin of safety to protect public health. compliance deadline. Some facilities and production processes, has a lower Since receiving the petitions, we have indicated a 5-year minimum compliance boiling point, and stringent worker re-evaluated our treatment of the period would be required because they safety OSHA requirements. Some responses to the NODA by aerospace would need to investigate technology facilities also indicated that installation and protocol changes called for by the manufacturing and maintenance of vacuum-to-vacuum machines was not proposed 40,000 kg/yr MC equivalent facilities. Specifically, we have re- a compliance option due to the limit. With regard to vacuum-to-vacuum evaluated responses we received from differences between the continuous web technology, aerospace manufacturers various aerospace manufacturing and cleaning process and other batch indicated that vacuum-to-vacuum maintenance facilities indicating the cleaning operations. They stated that the technology was extremely expensive availability of compliance options that 1994 NESHAP, in recognition of these and had not been proven effective or include various work practices and differences, prescribed compliance reliable for the operations at aerospace installing larger or additional CAD options for facilities that use continuous manufacturing and maintenance systems, and vacuum-to-vacuum web cleaning machines that were facilities. With regard to solvent machines and switching from a HAP different from other halogenated solvent switching, those aerospace solvent to nPB. We have also learned cleaning machines. They requested that manufacturing and maintenance that certain aerospace manufacturing we set different compliance facilities that use PCE stated that and maintenance facilities are testing requirements that would be based on switching to either TCE or MC would be nPB as a compliance approach to HAP overall control efficiency rather than an an unsuitable compliance option emission reductions. We currently do emission limit, in light of the fact that because of incompatibility issues and not have sufficient information that they could not comply with either of the lower vapor pressure. Other facilities would allow us to conclude definitively proposed emission limits in the August also stated that they may be able to that nPB switching is a viable 2006 proposed rule. They maintained switch from a HAP solvent to a non- compliance option for this industry that attaining a degree of control rather HAP solvent such as nPB, but indicated primarily because we are aware of than meeting an emission limit was a that nPB solvent was untested in their material compatibility concerns. more appropriate measure of their industry. They also stated that changing Therefore, we do not believe that we can emission reduction capability. They also solvents involved a rigorous approval extrapolate the use of nPB by facilities indicated that they had installed CAD, process by the original equipment that manufacture narrow tubing to the which can operate at about 99 percent manufacturers and the Federal Aviation aerospace manufacturing and control efficiency, and that they could Administration in order to ensure that maintenance facilities. We have thus possibly achieve an overall effectiveness safety and quality criteria continue to be calculated compliance costs for the of 80 percent control efficiency (the met and that such process would likely aerospace manufacturing and be beyond the 2-year proposed maintenance facilities using HAP 21 Continuous web cleaners are a subset of in-line solvent switching, retrofitting of cleaners that are used to clean products such as compliance deadline. We note, in films, sheet metal, and wire in rolls or coils. They general, that the bulk of comments machines, vacuum-to-vacuum machines are semi-enclosed, with emission points where the indicated an inability to implement and CAD using the same assigned costs workload enters and exits the machine. Squeegee these control measures within the used in the Halogenated Solvent rollers reduce carry out emissions by removing Cleaning rule, which were based on excess solvent from the exiting workload. The proposed 2-year compliance period at workload is uncoiled and conveyorized throughout the costs presented in our August 17, costs provided in public comments. As the cleaning machine at speeds in excess of 11 feet 2006 proposal. discussed in section III of this preamble, per minute and recoiled or cut as it exits the In the Halogenated Solvent Cleaning we are proposing a range of regulatory machine. Emission points are similar to emission rule, we evaluated costs alone for the options that would be applicable on a points from other in-line cleaners. Also some continuous web machines have exhaust systems 60,000 kg/yr MC equivalent emission facility-wide basis for all halogenated that are similar to those used with some in-line limit and both risks and costs for the solvent cleaning machines in use at cleaners.

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1994 NESHAP requires 70 percent emission cap for facilities that use limit option that we finalized in the overall control efficiency). continuous web cleaning machines. Halogenated Solvent Cleaning rule. Similar to our treatment of Under one of the regulatory options v. General Population of Halogenated comparable assertions by both facilities presented in this proposal, six facilities Solvent Cleaning Machines that manufacture narrow tubing and would be required to reduce emissions aerospace manufacturing and by 33 percent, i.e., ((1 ¥ 70%) ¥ (1 ¥ Petitioners stated that the 60,000 kg/ maintenance facilities, we were 80%)/(1 ¥ 70%) = 33%). To meet this yr MC equivalent level we promulgated persuaded by these assertions, and in proposed emission requirement, we for the general population of the Halogenated Solvent Cleaning rule, assumed three facilities could switch halogenated solvent cleaning machines we acknowledged that continuous web their HAP solvent to nPB (based on the was neither proposed nor made machines are designed differently from use of nPB in the narrow tubing available for public comment. In general halogenated solvent cleaning industry). Based on the analysis we reconsideration of the Halogenated machines, i.e., batch cleaning machines, conducted to support the Halogenated Solvent Cleaning rule, we re-examined and that it would be both Solvent Cleaning rule we also assumed the proposed 40,000 kg/yr and technologically infeasible and cost that three facilities could install CAD or promulgated 60,000 kg/yr MC prohibitive for facilities that use automated gates control to comply with equivalent levels of control for the continuous web cleaning machines to the proposed option. Thus, as earlier general population, retaining the comply with our final promulgated discussed in section III of this preamble, emission control assumptions (and thus emission limits. Further, we determined we are proposing an option that the risk reduction and cost assumptions) that their control choices were limited includes an overall control efficiency of used in the final rule. As in the to installation of CAD, but that CAD 80 percent for facilities that use Halogenated Solvent Cleaning rule, our would be insufficient for purposes of continuous web cleaning machines that evaluation is based on the 2002 NEI complying with either the proposed or exceed a 60,000 kg/yr MC equivalent data. Since promulgation of the final promulgated emission limits limit. because they would likely achieve only Halogenated Solvent Cleaning rule, we a 10 to 30 percent overall emission iv. Military Maintenance and Depot have received no new information that reductions in facility-wide emissions. Facilities would lead us to change the facts and conclusions we presented for either the 72 FR 25155. In our final Halogenated Petitioners also contend that the EPA 40,000 kg/yr MC equivalent level Solvent Cleaning rule we analyzed and announced a final rule that dramatically (which we rejected in the Halogenated discussed a regulatory alternative that departed from the proposed rule by Solvent Cleaning rule) or the 60,000 kg/ would require 80 percent overall control imposing a 100,000 kg/yr MC equivalent yr MC equivalent level. Therefore, in efficiency for all facilities, but we limit for halogenated solvent cleaning this action we are proposing a 60,000 ultimately concluded that for facilities machines used by military maintenance kg/yr MC equivalent emission limit as a that use continuous web cleaning and depot facilities. Petitioners contend regulatory option for the general machines the current level of control that the public was deprived of the degreasing units. provided by the 1994 NESHAP both opportunity to comment on this reduces HAP emissions to levels that standard and on the technical, legal and 4. Health Information for the Proposed present an acceptable risk and provides policy rationale the EPA proffered in the Options an ample margin of safety to protect Halogenated Solvent Cleaning rule. public health. As previously mentioned, we have Since promulgation of the In response to both our August 17, performed additional risk assessments Halogenated Solvent Cleaning rule, and 2006 proposal and the NODA, military for this source category since the final receipt of the reconsideration petitions, depot and maintenance facilities rule was promulgated. In this section, we have also re-evaluated our indicated an inability to comply with we provide estimates of the health risk assumptions on compliance options, either co-proposed limits due to both reductions achieved by each of the and costs for additional emission technological and compliance deadline proposed regulatory options for each of reductions as it relates to facilities that constraints. They indicated, however, the industry sectors. The estimates were use continuous web cleaning machines. an ability to comply with a 100,000 kg/ derived using the same analytical In doing so, we have re-examined the yr MC equivalent limit. Persuaded by methodologies which were used to comments submitted on the August 16, these responses, we determined that the derive the estimates for the Halogenated 2006 proposal and NODA, where some 100,000 kg/yr MC equivalent limit for Solvent Cleaning rule, with two facilities that use continuous web halogenated solvent cleaning machines exceptions: (1) The health risk estimates cleaning machines indicated their used by military depot and maintenance were derived explicitly (rather than preference for tighter control efficiency facilities would provide an ample extrapolated, as was done for the as compared to a straight emission limit margin of safety in the Halogenated Halogenated Solvent Cleaning rule) for and more specifically their comments Solvent Cleaning rule. each industrial sector as well as for the that indicated the ability to achieve 80 Since promulgation of the total population of facilities; and, (2) in percent overall control efficiency over Halogenated Solvent Cleaning rule, and addition to our use of the CalEPA uncontrolled emission levels within a 3- receipt of the petitions, we have also re- chronic REL for TCE, a chronic non- year compliance period. (These evaluated our assumptions on cancer air criterion developed by the comments are in the docket for this compliance options, and costs for NYS DOH was used to characterize non- rulemaking.) Facilities that use additional emission reductions as they cancer risks for TCE. continuous web cleaning machines are relate to military maintenance and While health risks were estimated currently required to achieve 70 percent depot facilities. In this action, as using both the 1999 NEI and the 2002 overall control efficiency under the discussed in section III above, for NEI, we only present those derived 1994 NESHAP. halogenated solvent cleaning machines using the more recent emission This proposal reflects this re- used by military maintenance and depot inventory data. Additional details and evaluation and our belief that a relative facilities we are re-proposing the results are provided in the docket for reduction limit is more suitable than an 100,000 kg/yr MC equivalent emission this rule.

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Table 2 presents a summary of cancer where we can say that there is no system, with symptoms including risk results for the entire source category appreciable risk of non-cancer health dizziness, drowsiness, and confusion at at baseline levels and for each of the effects (see previous discussion in this high enough exposures. Effects to the proposed control options, indicating section). We believe that this result does liver and immune systems have also both how the maximum individual not indicate that there should be been observed in people at high enough cancer risk level and the population concern; rather, we believe it is TCE exposures. within various individual risk ranges indicative of the range of values vary from option to option. It also shows associated with the chronic non-cancer In response to one petitioner’s the projected emission reductions and toxicity of TCE. We also note that using assertion that the Halogenated Solvent cancer incidence levels associated with the CalEPA REL there are no facilities Cleaning rule omitted an analysis of the each option, as well as the estimated with an HI above 1; however, using the population exposed to lifetime cancer maximum non-cancer target organ- NYS DOH air criterion, which risks greater than 1-in-1 million, Table specific HI values (indicated as a range, incorporates a significant degree of 1, above, presents updated estimates of depending on which chronic reference conservatism in its final estimate, the this information from the Halogenated value is used in the calculation). We only HAP contributing to non-cancer HI Solvent Cleaning rule while Table 2, note specifically that the range of values above 1 becomes TCE. The target below, provides population risk exposures (as indicated by the HI organ system which is most sensitive for information relevant to the different values) for the baseline and Option 1 both the CalEPA REL and the NYS DOH proposed regulatory options that we are scenarios are near the exposure level air criterion is the central nervous seeking comment on in this action.

TABLE 2—EFFECT OF THE PROPOSED OPTIONS ON RISK AND EMISSIONS

Options Baseline Option 1 Option 2 Option 3

MIR (in-1 million) ...... 100 ~50 ~50 ~50 >100 in-1 million * ...... 100 0 0 0 ≥10 to <100 in-1 million * ...... 82,000 7,500 6,600 5,700 ≥1 to <10 in-1 million * ...... 8,000,000 2,100,000 2,087,500 1,946,500 Emissions Reduced (tons/yr) ...... 0 1,681 2,601 3,188 Emissions Remaining (tons/yr) ...... 4,200 2,535 1,615 1,028 Maximum Non-cancer HI ...... 0.2–7.0 0.2–2.0 0.05–1.0 0.05–1.0 Cancer Incidence (cases/yr) ...... 0.55 0.36 0.35 0.32 * Number of people in the specified risk range

Option 1: 60,000 kg/yr MC equivalent and 100,000 kg/yr MC equivalent for percent overall control efficiency for applicable to general population of halogenated solvent cleaning machines facilities that use continuous web halogenated solvent cleaning machines in use at military maintenance and cleaning machines that have emissions and 100,000 kg/yr MC equivalent for depot facilities. exceeding 60,000 kg/yr MC equivalent. halogenated solvent cleaning machines Option 3: 60,000 kg/yr MC equivalent Table 3 presents a summary of cancer in use at military maintenance and applicable to general population and incidence, cancer incidence reduction, depot facilities. facilities that manufacture narrow Option 2: 60,000 kg/yr MC equivalent tubing; 100,000 kg/yr MC equivalent and emission reductions for the general applicable to facilities that manufacture applicable to aerospace manufacturing population and for each of the industrial narrow tubing and general population of and maintenance facilities and military sectors discussed above, for each of the halogenated solvent cleaning machines maintenance and depot facilities; and 80 control options being considered.

TABLE 3—INCIDENCE AND EMISSIONS REDUCTIONS FOR THE SECTOR-SPECIFIC COMPONENTS OF OPTIONS 1, 2, AND 3

Baseline Incidence after Industry group Emission limit incidence control Cases avoided/ Tons reduced (cases/yr) (cases/yr) year

General Degreaser Population (not 60,000 kg/yr ...... 0 .45 0.26 0.19 1,592 in any other sector). Narrow Tubing Manufacturing ...... 60,000 kg/yr ...... 0 .02 0.007 0 .013 920 Continuous Web Cleaning Ma- 80 percent overall control effi- 0 .03 0.02 0 .01 263 chines (>60,000 kg/yr). ciency. Aerospace Manufacturing and 100,000 kg/yr ...... 0 .05 0.03 0 .02 324 Maintenance. Military maintenance and depot .... 100,000 kg/yr ...... 0 .0003 0 .0001 0.0002 89

After promulgation of the we have assumed that nPB could and maintenance facilities. The HAP Halogenated Solvent Cleaning rule, we would be used in both the narrow tube emission reductions, risk reductions, became aware that nPB, a non-HAP, had manufacturing industry and facilities and costs projected under these’s already been substituted for TCE in at that use continuous web cleaning proposed regulatory options 2 and 3 least two facilities that manufacture machines. Due to materials rely, and are based, in part, on nPB narrow tubing and that it may be a incompatibility, however, we do not substitution for TCE in a specific suitable alternative solvent at other believe we can extrapolate the use of number of machines of specific sizes. facilities. As a result, in this proposal nPB to the aerospace manufacturing and

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Although nPB is not a HAP, there are cleaners should not pose any health the information on the use of nPB by known adverse health effects from risks to the general population. facilities that manufacture narrow exposures to high levels of nPB, The SNAP final rule stated that for tubing to aerospace manufacturing and including effects on the nervous system non-aerosol solvent cleaning, facilities maintenance facilities. Finally, our cost (headaches, dizziness, nausea, should follow the guidelines in the estimates do not reflect any new numbness in the lower body) based on NESHAP for halogenated solvent information on available HAP emission studies of exposed workers,22 and cleaning if they are using nPB. The reduction options for both the general effects on the liver and reproductive equipment and procedural changes population of halogenated solvent system based on animal tests.23 In its described in the NESHAP for cleaning machines, the aerospace review of the use of nPB as an halogenated solvent cleaning can reduce manufacturing and maintenance alternative to using solvents which emissions, reduce solvent losses and facilities and military maintenance and deplete stratospheric ozone (72 FR lower the cost of cleaning with organic depot facilities. 30142, May 30, 2007), the EPA solvents. To estimate the costs of reducing determined that nPB was an acceptable Based on this information, we emissions for individual facilities, the substitute in solvent cleaning conclude that use of nPB to comply EPA first calculated the percent applications, but recommended use of with the proposed emission limit is emission reductions necessary for each personal protective equipment and reasonable, and we recommend that facility to comply with the levels being adherence to the capture and those switching to nPB maintain use of investigated. Then, control technologies suppression guidelines in the NESHAP their current emission controls for were applied on a per unit basis to for halogenated solvent cleaning.24 For worker and general public safety. In this achieve the percent reduction necessary example, emission controls previously notice, we request comment on to achieve the level. The control used for MC or TCE should remain in additional or new information which technologies applied varied depending place for worker safety and general might suggest that this conclusion is on the cleaning machine type, the public safety reasons. incorrect. solvent used, and the percent control In evaluating nPB in a specific use 5. Costs and Other Relevant Factors for required. As earlier stated, such control under the SNAP program, we evaluated the Proposed Options technologies include the replacement of the worst-case level of nPB emissions. existing units with vacuum-to-vacuum We note that even though this worst- As discussed earlier in sections I and machines, solvent switching, and add- case emission level is higher, by at least III of this preamble, petitioners have on controls. This proposal reflects our a factor of 4, than the highest-emitting raised several issues on our cost investigation of these control options facility in the halogenated solvents conclusions in the Halogenated Solvent and a determination of the direct costs category, the worst-case impact Cleaning rule. Since promulgation of the associated with these emission estimated under the SNAP program is Halogenated Solvent Cleaning rule, we reduction measures. still substantially below, by more than have become aware of certain facilities Prior to selection of the proposed a factor of 10, the derived threshold for that manufacture narrow tubing that emission limits and control efficiency non-cancer effects. This leads us to have voluntarily investigated and requirements, we have considered the conclude that the substitution of nPB for instituted HAP emission reductions by costs of each of the emission limits in TCE and/or MC in halogenated solvent installing CAD, vacuum-to-vacuum providing various degrees of emission machines, switching from HAP solvents reductions, similar to our August 17, 22 Ichihara et al. 2004b. Neurological to a non-HAP solvent and 2006, proposal and our Halogenated Abnormalities in Workers of 1-Bromopropane reconfiguration and changing Solvent Cleaning rule. The costs for an Factory, Environmental Health Perspectives production processes. individual facility were then published by the National Institute of Consequently, we have re-evaluated Environmental Health Sciences, National Institute determined based on the costs of Health, U.S. Department of Health and Human our conclusions on costs, availability of associated with the controls needed to Services, June 2004. technology and the compliance deadline meet the level and taking into account Ichihara et al. 2002. Neurological disorders in for the facility-wide limits in the any increase or decrease in solvent three workers exposed to 1-bromopropane. Journal Halogenated Solvent Cleaning rule. As of Occupational Health 44:1–7 (2002). costs. We have determined facilities in 23 WIL. 2001. An Inhalation Two-Generation earlier explained in this section, each sector of industries engaging in Reproductive Toxicity Study of 1–Bromopropane in existing information now leads us to halogenated solvent cleaning that would Rats. Conducted by Stump D. G. at WIL Research conclude, in a change from the have to add technology measures to Laboratories, Inc., Sponsored by Brominated Halogenated Solvent Cleaning rule, that control emissions at the various Solvents Consortium. May 24, 2001. certain affected sources in the narrow 24 The EPA has addressed the use of nPB as a emission limits discussed in this solvent in industrial equipment for metals cleaning, tubing industry can comply with the preamble. With regard to the narrow electronics cleaning and precision cleaning under proposed limits and requirements tube manufacturing industry, we have the Significant New Alternative Policy (SNAP) through installation of CAD, vacuum-to- applied costs that were incurred by Program. Under SNAP, EPA reviews substitutes for ozone depleting substances to determine if a vacuum machines, switching from HAP specific facilities in Pennsylvania for substitute would pose a substantially greater risk to to non-HAP and improved work purposes of meeting various proposed human health or the environment than other practices and manufacturing process emission limits. We have also substitutes that are available. See CAA section changes. In addition, we extrapolated extrapolated some of these costs to 612(c), 40 CFR Part 82, subpart G. Specifically, based on evidence that in solvent cleaning worker information on compliance measures facilities that use continuous web exposure levels were consistently below levels of that we obtained for the narrow tubing cleaning machines (e.g., use of nPB as concern, EPA concluded that users could use nPB industry sector to facilities that use a substitute for TCE). We also assumed as safely as other available substitutes. Thus, EPA continuous web cleaning machines. that the necessary controls were all high found nPB acceptable as a substitute for methyl chloroform and CFC–113, (72 FR 30142 May 30, Specifically, we assumed that facilities efficiency and costlier controls. We did 2007). While under SNAP no restrictions were that use continuous web cleaning not apply any mid-level controls and placed on the use of nPB in the solvent cleaning machines could substitute TCE for nPB. their associated costs for instances end uses addressed in the rule, SNAP approval does As noted earlier, however, due to where we had direct compliance costs not relieve users from the obligation to comply with any other regulatory obligations, such as those that concerns over materials incompatibility, to use as examples. In other words, might apply under the 1994 NESHAP. we do not believe we can extrapolate when estimating costs for the facilities

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that manufacture narrow tubing, the continuous web cleaning machines calculated the overall and incremental EPA used cost information provided by because we have assumed that these annualized cost per cancer case avoided facilities that manufacture narrow associated direct costs would be a for each proposed option. The results of tubing that had already implemented primary example of costs of complying our analyses are summarized in Table 4 control technologies, such as CAD, with the various proposed emission below. In general, we expect that vacuum-to-vacuum machines, and limits for any facility with similar facilities that use halogenated solvents switching to nPB. Additionally, costs cleaning machines, similar solvent with a higher URE, and as a result have and risk estimates were developed for usage and similar HAP emission lower emission limits, would likely the narrow tube manufacturing industry reduction. These applied assumptions incur higher costs to reduce emissions at various percent emission reduction are similar to our cost assumptions in to the necessary limit. We are soliciting levels and MC equivalent levels. We the August 17, 2006, proposal. To more comments on these aspects of this have then applied these associated fully analyze the implications of the proposal. direct costs to facilities that use various emission limits, we re-

TABLE 4—COST ANALYSIS FOR PROPOSED OPTIONS

Option 1 2 3

Total Capital Costs (Millions) ...... $15.65 $37.58 $49.89 Net Annualized Costs (Millions) ...... $1.50 $3.73 $5.19 Operation and Maintenance Costs (Millions) ...... $0.76 $1.88 $2.61 Solvent Savings (Millions) ...... ($3.65 ) ($4.00 ) ($4.96 ) Total Annual Costs * (Millions) ...... ($1.38 ) $1.60 $2.83 Emissions Reduced (tons/yr) ...... 1,681 2,601 3,058 Cancer Cases Avoided/yr ...... 0.19 0.20 0.23 Cost Effectiveness of Control ($/ton) ...... ($821) $616 $927 Incremental Cost effectiveness (compared to next least stringent option) (Millions $/case avoided) ...... ($7.0) $293 $41 * Net Annualized Costs plus O&M plus Solvent Savings.

We are also presenting in Table 5 the options in light of the fact that we are options 1 through 3 presented above in associated costs and emission soliciting comments on combinations of section III. reductions for the sector-specific control limits other than those represented by

TABLE 5—COST ANALYSIS FOR SECTOR-SPECIFIC COMPONENTS OF OPTIONS 1, 2, AND 3

60,000 kg/yr 80 percent MC equivalent overall control 100,000 kg MC 100,000 kg/yr for general 60,000 kg/yr for continuous equivalent for MC equivalent Emission limit degreaser pop- MC equivalent web cleaning aerospace man- for military ulation (does for narrow tub- machines at fa- ufacture and maintenance not include ing cilities emitting maintenance and depot named sectors) >60,000 kg/yr

Total Capital Costs (Millions) ...... $15.7 $21.92 $3.29 $9.02 $0.54 Net Annualized Costs (Millions) ...... $1.45 $2.23 $0.63 $0.87 $0.06 Operation and Maintenance Costs (Millions) ...... $0.72 $1.11 $0.31 $0.44 $0.04 Solvent Savings (Millions) ...... ($3.50) ($0.36 ) ($0.34 ) ($0.68 ) ($0.16 ) Million Thousand Thousand Thousand Thousand Total Annual Costs * (Millions) ...... ($1.32) $2.97 $0.60 $0.63 $0.06 Emissions Reduced (tons/yr) ...... 1,621 920 290 324 89 Cost of Control ($/ton) ...... ($832 ) $3,238 $2,774 $1,933 ($625 ) Cost per Case Avoided (Millions) ...... ($7.0 ) $596 $177 $31 ($56 ) * Net Annualized Costs plus O&M plus Solvent Savings.

Other factors relevant to our ample small business size standards. Of these 6. Ample Margin of Safety Rationale for margin of safety determination include 40 small entities, none have an Each of the Proposed Options (but are not limited to) impact on the annualized cost of greater than one national economy, small business percent of their sales. Option 2 is This section provides the results of impacts, cost-effectiveness, incremental expected to affect 148 ultimate parent our reconsideration analysis and the cost-effectiveness, or net benefits. entities, and 52 (or 35 percent) of these options that the EPA believes suitable All economic impact estimates entities are small. Of these 52 small for proposal considering the issues incorporate the scale-up factor of 1.76 entities, three have an annualized cost raised by the petitioners and the applied to affected source populations of greater than one percent of their sales. capabilities of the industries affected by and costs. Option 1 is expected to affect Finally, Option 3 is expected to affect the source category NESHAP 120 ultimate parent entities, and 40 of 181 ultimate parent entities, and 56 (or regulations. Specifically, Option 1 these parent entities (one-third of the 31 percent) of these entities are small. proposes the same limits promulgated total number of ultimate parent entities Of these 56 small entities, three have an in the Halogenated Solvent Cleaning affected) are small as defined by the annualized cost of greater than one rule that is the subject of this Small Business Administration (SBA) percent of their sales. reconsideration. Option 2 introduces

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more stringent emission limits (60,000 solvent; (3) retrofitting additional present an acceptable level of risk, kg/yr MC equivalent) for the narrow freeboard; (4) installing CAD; or (5) provide an ample margin of safety to tube manufacturing industry. Finally, installing vacuum-to-vacuum machines. protect public health, and prevent any Option 3 introduces more stringent We are proposing to conclude that adverse environmental effects. We limits for aerospace manufacturing and Option 1 reduces HAP emissions to anticipate that about 105 facilities and maintenance facilities (100,000 kg/yr levels that present an acceptable level of 150 halogenated solvent cleaning MC equivalent) and facilities that use risk, provides an ample margin of safety machines would be subject to this continuous web cleaning machines to protect public health, and prevents proposed option. Facilities would (80% overall control efficiency for units any adverse environmental effects. reduce their emissions by selecting at facilities emitting greater than 60,000 When Option 1 is applied to the control options that might include one kg/yr MC equivalent). facilities in the 2002 NEI database we or more of the following: (1) Solvent We recognize that there are significant estimate that the MIR decreases to about switching from a HAP solvent with a differences between these options in 50-in-1 million with an estimated higher URE to a HAP solvent with a terms of the level of emission reduction in cancer incidence of about lower URE, such as switching from PCE reductions, the number of cancer cases 0.19 cases annually, with an annualized or TCE to MC; (2) solvent switching avoided per year, and the associated cost savings of $1.3 million, or a cost from a HAP solvent to a non-HAP costs of control, but we believe that each savings of about $822 per ton. The solvent; (3) retrofitting additional of the options presented provides an maximum chronic noncancer HI is freeboard; (4) installing CAD or; (5) ample margin of safety consistent with lower than the baseline, ranging from installing vacuum-to-vacuum machines. the Benzene framework. We specifically 0.2 to 2.0 depending on which We are proposing to conclude that solicit comment on the information noncancer toxicity value is used in the Option 2 reduces HAP emissions to included in Table 4 above and any other assessment. Specifically, using the levels that present an acceptable level of information relevant to our ample CalEPA chronic REL to assess TCE risk, provides an ample margin of safety margin of safety determination. noncancer hazard, emissions from no to protect public health, and prevents facilities would result in exposures i. What is our rationale for Option 1? any adverse environmental effects. exceeding an HI of 1. Using the NYS When Option 2 is applied to the A 60,000 kg/yr MC equivalent limit DOH noncancer criterion to assess TCE facilities in the 2002 NEI database, the would be applicable to sources noncancer hazard, emissions from the MIR decreases to about 30-in-1 million associated with the general population five narrow tube manufacturing with an estimated reduction in cancer of halogenated solvent cleaning facilities would result in exposures incidence of about 0.20 cases annually, machines. A 100,000 kg/yr MC exceeding an HI of 1, the HI value is 2 and annualized costs of $1.6 million, or equivalent limit would be applicable to for each of these facilities. The HIs for annual costs of about $615 per ton. The halogenated solvent cleaning machines the five other facilities that are above 1 maximum chronic noncancer HI is located at military maintenance and in the baseline using the NYS DOH depot facilities. With respect to facilities noncancer criterion would fall below 1 reduced from the baseline, to a range of that use continuous web cleaning under this option. In addition, 0.05 to 1 depending on which machines, and halogenated solvent considering the discussion of the noncancer toxicity value is used in the cleaning machines used by facilities that conservatism associated with the assessment. The incremental annualized manufacture narrow tubing and chronic non-cancer toxicity of TCE cost of control options 1 and 2 is about aerospace manufacturing and using the NYS DOH criterion (discussed $3 million. The incremental emission maintenance facilities, we are proposing previously in section III), along with the reduced from Option 1 to Option 2 is to readopt the 1994 NESHAP under additional cost and risk factors 920 tons. Therefore the incremental CAA section 112(d)(6) and (f)(2) discussed above, we propose that this cost-effectiveness between Options 1 because, as discussed below, we are option provides an ample margin of and 2 is nearly $3,200/ton/year. The proposing that the current level of safety to protect public health. incremental cancer incidence reduction control called for by the 1994 NESHAP between options 1 and 2 is 0.01. The reduces HAP emissions to limits that ii. What is our rationale for Option 2? incremental cost-effectiveness/cancer present an acceptable level of risk, A 60,000 kg/yr MC equivalent limit case avoided is nearly $293 million. provide an ample margin of safety to would be applicable to sources iii. What is our rationale for Option 3? protect public health, and prevent any associated with the general population adverse environmental effects. (This of halogenated solvent cleaning A 60,000 kg/yr MC equivalent limit option represents the standards machines and halogenated solvent would be applicable to sources promulgated in the Halogenated Solvent cleaning machines used by facilities that associated with the general population Cleaning rule). manufacture narrow tubing. A 100,000 of halogenated solvent cleaning Under this option, the total HAP kg/yr MC equivalent limit would be machines and halogenated solvent emissions would be reduced by 1,681 applicable to halogenated solvent cleaning machines used by facilities that tpy. We anticipate that about 82 cleaning machines located at military manufacture narrow tubing. A 100,000 facilities and 98 halogenated solvent maintenance and depot facilities. With kg/yr MC equivalent limit would be cleaning machines would be affected by respect to facilities that use continuous applicable to halogenated solvent this proposed option. Facilities would web cleaning machines, and cleaning machines used by aerospace reduce their emissions to meet this halogenated solvent cleaning machines manufacturing and maintenance proposed regulatory option by selecting used by aerospace manufacturing and facilities and halogenated solvent control options that might include one maintenance facilities, we are proposing cleaning machines located at military or more of the following: (1) Solvent to re-adopt the 1994 NESHAP under maintenance and depot facilities. switching from a HAP solvent with a CAA section 112(d)(6) and (f)(2) Facilities that use continuous web higher URE to a HAP solvent with a because, as discussed below, we are cleaning machines that exceed 60,000 lower URE, such as switching from PCE proposing that the current level of kg/yr MC equivalent HAP emissions or TCE to MC; (2) solvent switching control called for by the 1994 NESHAP would have to achieve 80 percent from a HAP solvent to a non-HAP reduces HAP emissions to levels that overall control efficiency for those units.

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We anticipate that about 130 facilities facilities that use continuous web described above for our 112(f)(2) and 260 halogenated solvent cleaning cleaning machines. residual risk analysis. Based on the machines would be subject to this CAA section 112(d)(6) requires the information analyzed for the regulatory proposed option. Facilities would EPA to review and revise, as necessary options, and discussed in detail above, reduce their emissions by selecting (taking into account developments in we are proposing three options for control options that might include one practices, processes, and control emissions standards to satisfy the or more of the following: (1) Solvent technologies), emission standards requirements of section 112(d)(6) switching from a HAP solvent with a promulgated under CAA section 112(d) review: higher URE to a HAP solvent with a no less often than every eight years. In Proposed Option 1: A 60,000 kg/yr lower URE, such as switching from PCE light of the petitions, we have re- MC equivalent limit would be or TCE to MC; (2) solvent switching assessed the issue of whether there have applicable to sources associated with from a HAP solvent to a non-HAP been developments in practices, the general population of halogenated solvent; (3) retrofitting additional processes and control technologies since solvent cleaning machines. A 100,000 freeboard; (4) installing CAD; or (5) issuance of the 1994 NESHAP. We have kg/yr MC equivalent limit would be installing vacuum-to-vacuum machines. also reviewed the information applicable to halogenated solvent We are proposing to conclude that concerning compliance options cleaning machines located at military Option 3 reduces HAP emissions to included in the various petitions, as maintenance and depot facilities. With levels that present an acceptable level of some of that information was not respect to facilities that use continuous risk, provides an ample margin of safety available to the EPA at the time of web cleaning machines, halogenated to protect public health, and prevents promulgation of the Halogenated solvent cleaning machines used by any adverse environmental effects. Solvent Cleaning rule. Additionally, we facilities that manufacture narrow When Option 3 is applied to 130 have held discussions with industry tubing, and halogenated solvent facilities in the 2002 NEI database, the representatives on the availability of cleaning machines used by aerospace MIR decreases to about 30-in-1 million control measures and the potential for manufacturing and maintenance with an estimated reduction in cancer additional emission reductions. facilities, we are proposing to re-adopt incidence of about 0.23 cases annually, We believe that there have been some the 1994 NESHAP under CAA section and annualized costs of $2.8 million, or developments in control technologies, 112(f)(2). practices and processes for the facilities annual costs of about $887 per ton. The Proposed Option 2: A 60,000 kg/yr that manufacture narrow tubing. The incremental annualized cost of control MC equivalent limit would be Options 2 and 3 is about $1.2 million. control technologies include the use of applicable to sources associated with The incremental emission reduced from vacuum-to-vacuum technology and the general population of halogenated Option 2 to Option 3 is 587 tons. CAD. Other measures include, for solvent cleaning machines and Therefore the incremental cost- example, switching from HAP to non- halogenated solvent cleaning machines effectiveness/tons emissions reduced HAP cleaners, such as nPB and used by facilities that manufacture between Options 2 and 3 is nearly manufacturing process changes. We narrow tubing. A 100,000 kg/yr MC $2,100/ton/year. The incremental cancer solicit comment on the extent to which equivalent limit would be applicable to incidence reduction between Options 2 these control approaches represent halogenated solvent cleaning machines and 3 is 0.03. The incremental cost- advances in the control of halogenated located at military maintenance and effectiveness/cancer case avoided is $41 solvents for the entire source category or million. whether they are relevant only to certain depot facilities. With respect to facilities sectors within the category. that use continuous web cleaning C. Clean Air Act Section 112(d)(6) Section 112(d)(6) grants EPA much machines, and halogenated solvent Review discretion to revise the standards ‘‘as cleaning machines used by aerospace Petitioners also contend that the necessary.’’ Thus, although the manufacturing and maintenance Halogenated Solvent Cleaning rule does specifically enumerated factors that EPA facilities, we are proposing to re-adopt not satisfy our obligations under CAA should consider all relate to technology the 1994 NESHAP under CAA section section 112(d)(6). Several petitioners (e.g., developments in practices, 112(f)(2). state that our review of the 1994 processes and control technologies), the Proposed Option 3: A 60,000 kg/yr NESHAP failed to consider the instruction to revise ‘‘as necessary’’ MC equivalent limit would be availability of current control indicates that EPA is to exercise its applicable to sources associated with technology, such as CAD, and capture judgment in this regulatory decision, the general population of halogenated and control system that could achieve and is not precluded from considering solvent cleaning machines and upwards of 35 percent TCE emissions additional relevant factors, such as costs halogenated solvent cleaning machines reduction by facilities that manufacture and risk. EPA has substantial discretion used by facilities that manufacture narrow tubing. Petitioners also identify in weighing all of the relevant factors in narrow tubing. A 100,000 kg/yr MC CAD, and vacuum-to-vacuum machines, arriving at the best balance of costs and equivalent limit would be applicable to and other control options, such as emissions reduction and determining halogenated solvent cleaning machines solvent switching as compliance options what further controls, if any, are used by aerospace manufacturing and for halogenated solvent cleaning necessary. This interpretation is maintenance facilities and halogenated machines used by facilities that consistent with numerous rulings by the solvent cleaning machines located at manufacture narrow tubing that became U.S. Court of Appeals for the DC Circuit military maintenance and depot available subsequent to promulgation of regarding EPA’s approach to weighing facilities. Facilities that use continuous the Halogenated Solvent Cleaning rule. similar enumerated factors under web cleaning machines that exceed Further, petitioners allege that we failed statutory provisions directing the 60,000 kg/yr MC equivalent HAP to provide any explanation as to why agency to issue technology-based emissions would have to achieve 80 several alternative emission reduction standards. See, e.g. Husqvarna AB v. percent overall control efficiency for measures, such as either vacuum-to- EPA, 254 F.3d 195 (DC Cir. 2001). After those units. vacuum machines or solvent switching weighing all relevant factors, we are We solicit comments on these were not available control options for proposing the same regulatory options proposed options.

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D. Compliance Schedule have two years from the date of The capital costs for individual facilities As discussed in section II, one publication of the final rule to comply would range from $15,000 to $800,000 petitioner stated that the 3-year with the requirements of the final rule. with an average cost of about $190,000. compliance period appeared for the first We believe that such an extension is More than 60 percent of the facilities time in the Halogenated Solvent appropriate to allow the affected implementing a control technology Cleaning rule, making it impracticable facilities time to meet the more stringent would recognize a cost savings to raise objections during the period emission limitations. primarily from solvent savings. provided for public comment. One In the Halogenated Solvent Cleaning Controlling solvent use is a pollution petitioner argued that our assumption rule, we identified a conflict between prevention approach where emissions that facilities that manufacture narrow section 112(i) and section 112(f)(4) of reduction translate into less PCE, TCE tubing could only achieve a 10 percent the Act. To avoid a conflict in these and MC consumption and reduced emission reduction within a 3-year provisions addressing compliance operating costs primarily because compliance period was unsupported by deadlines, we interpreted the more facilities would need to purchase less the record and unexplained. Another specific and comprehensive set of solvents. Using the 2002 NEI database, petitioner argued that CAA section provisions in section 112(i) as governing the maximum individual cancer risk is 112(f)(4) is the controlling provision both CAA section 112(d) and (f) estimated to be reduced from 100-in-1 that addresses compliance deadlines for standards. We maintain this million to between 50 and 20-in-1 existing sources with regard to interpretation in this rule. We note, million, depending on the control standards promulgated under CAA however, that the 2-year compliance option selected. The options outlined sections 112(d)(6) and (f)(2). deadline proposed in this action is here are expected to reduce cancer At proposal, we determined that CAA consistent with an alternative incidence from a source category wide section 112(i) was the controlling interpretation of the Act, which baseline of 0.55 cases annually to 0.33 provision that addressed compliance petitioners endorse, that the provisions for Option 1, with reductions to 0.33 deadlines for existing sources with of CAA section 112(f)(4) control. CAA when continuing to Option 3, resulting regard to standards promulgated under section 112(f)(4) would allow us to grant in a range of reduction in cancer CAA sections 112(d)(6) and (f)(2). For a 2-year extension of the compliance incidence from between 0.19 to 0.22 existing sources, we proposed a 2-year deadline for existing sources, in cases annually, depending upon the compliance deadline from the effective addition to the 90-day compliance date option selected. Additionally, Option 1 date of the rule. We were persuaded, otherwise applicable. We believe that is expected to reduce the range of however, by comments on our August the proposed 2-year compliance possible chronic noncancer HI values 17, 2006 proposal and subsequent deadline is necessary for the installation from 0.2 to 7 at the baseline, to 0.2 to NODA, indicating that additional time of controls at existing sources, and 2, depending on which noncancer beyond the proposed 2-year compliance section 112(f)(4) would allow us to grant toxicity value is used in the assessment. deadline would be needed, and in the such an extension for the installation of Both Options 2 and 3 result in a Halogenated Solvent Cleaning rule, we controls. The proposed 2-year reduction of the range of possible maximum chronic noncancer HI values set a 3-year compliance period for compliance deadline takes into account from between 0.2 and 7 at the baseline, existing sources, finding that this period that the sources that have already to between 0.05 and 1, depending on was more appropriate given the time installed controls appear to have done which noncancer toxicity value is used necessary to implement control so within a two year period. Thus, we in the assessment. approaches necessary to meet the believe that this proposal falls within the 2-year plus 90-day period that The EPA estimates that to comply emission requirements. Thus, we with the 100,000 kg/yr MC equivalent promulgated a 3-year compliance would be allowed under CAA section 112(f)(4)(A)–(B) and is therefore within emission limit, military maintenance deadline for existing sources from the and depot facilities are expected to effective date of the Halogenated the permissible range of CAA section 112(f)(4), even if that section applies. incur $540,000 in capital costs with Solvent Cleaning rule. annualized savings of about $56,000. In this action, for existing sources that We are also soliciting comments on this aspect of this proposal. Using the 2002 NEI database, the were not subject to the emission maximum individual cancer risk is reduction requirements in the IV. Proposed Regulatory Text estimated to be reduced from 6-in-1 Halogenated Solvent Cleaning rule,25 Given that we are proposing a range million to 3-in-1 million. The emission we are proposing a 2-year compliance of regulatory options, we have not limit for military maintenance and deadline from the date of publication of prepared proposed regulatory text for depot facilities is expected to reduce the final rule in the Federal Register. As each option. The regulatory text for cancer incidence by 0.0002 cases to those sources that were subject to Option 1 is, however, set forth in the annually. emission reduction requirements in the The EPA also estimates that to comply 26 Halogenated Solvent Cleaning rule. If Halogenated Solvent Cleaning rule, if we elect to finalize options 2 or 3 or with the 100,000 kg/yr MC equivalent the final rule on reconsideration some combination thereof, the emission limit, aerospace manufacturing changes those requirements regulatory text will follow the and maintenance facilities are expected significantly and makes them more framework set forth in the Halogenated to incur $9 million in capital costs with stringent, we propose that these sources Solvent Cleaning rule. annualized costs of about $626,000. Using the 2002 NEI database, this 25 These sources include halogenated solvent V. Impacts emission limit for aerospace cleaning machines used by facilities that manufacture narrow tubing, facilities that For the general population degreasing manufacturing and maintenance manufacture specialized products requiring sources required to comply with the facilities is expected to reduce cancer continuous web cleaning, and aerospace 60,000 kg/yr MC equivalent emission incidence by 0.03 cases annually. manufacturing and maintenance facilities. limit, the national capital costs to reach The EPA also estimates that to comply 26 These sources include halogenated solvent cleaning machines at military maintenance and compliance are estimated to be with the 60,000 kg/yr MC equivalent depot facilities and the general population of $15,000,000 with annualized cost emission limit, facilities that halogenated solvent cleaning machines. savings of $1.3 million (2007 dollars). manufacture narrow tubing are expected

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to incur $22 million in capital costs requirements that were promulgated on (i.e., the NAICS code with the highest with annualized costs of about $3 December 2, 1994, in the Halogenated employee or revenue size standard) was million. Using the 2002 NEI database, Solvent Cleaning NESHAP prior to the used. this emission limit for facilities that 2006 proposed amendments, as well as As mentioned earlier in this manufacture narrow tubing is expected the NESHAP General Provisions (40 preamble, facilities across a large to reduce cancer incidence by 0.005 CFR part 63, subpart A), which are number of industries use halogenated cases annually. mandatory for all owners or operators solvents, therefore a number of size The EPA further estimates that to subject to national emission standards, standards are utilized in this analysis. comply with the 80 percent overall are documented in EPA ICR No. For the 41 industries identified at the 6- control efficiency, facilities that use 1652.06. OMB has previously approved digit NAICS code represented in this continuous web cleaning machines with the information collection requirements analysis, the employment size standard total emissions over the 60,000 kg/yr contained in the existing regulations 40 varies from 500 to 1,500 employees. The MC equivalent thresholds are expected CFR part 63 Subpart T under the annual sales standard is as low as four to incur $3 million in capital costs with provisions of the Paperwork Reduction million dollars and as high as 150 annualized costs of about $601,000. Act, 44 U.S.C. 3501 et seq. and has million dollars. The specific SBA size Using the 2002 NEI database, this assigned OMB control number 2060– standard is identified for each affected emission limit for facilities that use 0273. The OMB control numbers for industry within the small entity continuous web cleaning machines is EPA’s regulations in 40 CFR are listed database created for this economic expected to reduce cancer incidence by in 40 CFR part 9. analysis. 0.003 cases annually. After considering the economic C. Regulatory Flexibility Act impacts of this action on small entities, VI. Statutory and Executive Order The Regulatory Flexibility Act (RFA) we have concluded that this action will Reviews generally requires an agency to prepare not have a significant economic impact A. Executive Order 12866: Regulatory a regulatory flexibility analysis of any on a substantial number of small Planning and Review rule subject to notice and comment entities. This certification is based on rulemaking requirements under the the economic impact of this action on Under Executive Order (EO) 12866 Administrative Procedure Act or any all affected small entities in the entire (58 FR 51735, October 4, 1993), this other statute unless the agency certifies halogenated solvent cleaning source action is a ‘‘significant regulatory that the rule will not have a significant category. Option 1 is expected to affect action.’’ EO 12866 gives the Office of economic impact on a substantial 120 ultimate parent entities, and 40 of Management and Budget (OMB) the number of small entities. Small entities these parent entities (one-third of the authority to review regulatory actions include small businesses, small total number of ultimate parent entities that are categorized as ‘‘significant’’ organizations, and small governmental affected) are small as defined by SBA under section 3(f) of the EO, i.e., those jurisdictions. small business size standards. Of these actions that are likely to result in a rule For purposes of assessing the impacts 40 small entities none have an that may raise novel legal and policy of this rule on small entities, small annualized cost of greater than one issues arising out of mandates in CAA entity is defined as: (1) A small business percent of their sales. Option 2 is section 112(f)(2) and 112(d)(6). as defined by the Small Business expected to affect 148 ultimate parent Accordingly, EPA submitted this action Administration’s (SBA) regulations at 13 entities, and 52 (or 35 percent) of these to OMB for review under EO 12866 and CFR 121.201; (2) a small governmental entities are small. Of these 52 small any changes made in response to OMB jurisdiction that is a government of a entities, three have an annualized cost recommendations have been city, county, town, school district or of greater than one percent of their sales. documented in the docket for this special district with a population of less Finally, Option 3 is expected to affect action. than 50,000; and (3) a small 181 ultimate parent entities, and 56 (or In addition, EPA prepared an analysis organization that is any not-for-profit 31 percent) of these entities are small. of the potential costs and benefits enterprise which is independently Of these 56 small entities, three have an associated with this action. The owned and operated and is not annualized cost of greater than one analysis, which is briefly summarized in dominant in its field. percent of their sales. More information section III of this Preamble, is contained The companies owning the affected on these impacts can be found in the in the Costs Analyses Memorandum, facilities using halogenated solvents can economic impact analysis for this and has been placed in the docket for be grouped into small and large proposed rule, a document available in this action. categories using SBA general size the public docket for this action. standard definitions. Size standards are Although this proposed rule will not B. Paperwork Reduction Act based on industry classification codes have a significant economic impact on This action does not impose any new (i.e., North American Industrial a substantial number of small entities, information collection burden. Owners Classification System, or NAICS) that EPA nonetheless has tried to reduce the or operators will continue to keep each company uses to identify the impact of this rule on small entities. records and submit required reports to industry or industries in which they When developing the proposed rule, we EPA or the delegated State regulatory operate. SBA defines a small business in took special steps to ensure that the authority. Notifications, reports, and terms of the maximum employment, burdens imposed on small entities were records are essential in determining annual sales, or annual energy- minimal. We conducted several compliance and are required, in general, generating capacity (for electricity meetings with industry trade of all sources subject to the 1994 generating units) of the owning entity. associations to discuss regulatory NESHAP. Owners or operators subject These thresholds vary by industry and options and the corresponding burden to the 1994 NESHAP continue to are evaluated based on the primary on industry, such as recordkeeping and maintain records and retain them for at industry classification of the affected reporting. least five years following the date of companies. In cases where companies Following publication of the proposed such measurements, reports, and are classified by multiple NAICS codes, rule, copies of the Federal Register records. Information collection the most conservative SBA definition notice and, in some cases, background

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documents, will be publicly available to In the spirit of Executive Order 13132, energy. This proposed action will have all industries, organizations, and trade and consistent with EPA policy to a negligible impact on energy associations that have had input during promote communications between EPA consumption because about 10 percent the regulation development, as well as and State and local governments, EPA of entities using halogenated solvent State and local agencies. specifically solicits comment on this cleaning will have to reduce emissions We continue to be interested in the proposed rule from State and local through a range of activities involving potential impacts of this proposed rule officials. simple process changes to the on small entities and welcome F. Executive Order 13175: Consultation installation of additional emission comments on issues related to such and Coordination With Indian Tribal control equipment or special low impacts. Governments emitting machines to comply. The cost of energy distribution should not be D. Unfunded Mandates Reform Act This proposed action does not have affected by this proposed action at all This action contains no Federal tribal implications, as specified in since the standards do not affect energy mandates under the provisions of Title Executive Order 13175 (65 FR 67249, distribution facilities. We also expect II of the Unfunded Mandates Reform November 9, 2000). It will not have that there would be no impact on the Act of 1995 (UMRA), 2 U.S.C. 1531– substantial direct effects on tribal import of foreign energy supplies, and 1538 for State, local, or tribal governments, on the relationship no other adverse outcomes are expected governments or the private sector. The between the Federal government and to occur with regards to energy supplies. action imposes no enforceable duty on Indian tribes, or on the distribution of Further, we have concluded that this any State, local or tribal governments or power and responsibilities between the proposed action is not likely to have any the private sector. [The term Federal government and Indian tribes as significant adverse energy effects. ‘‘enforceable duty’’ does not include specified in EO 13175. Thus, Executive I. National Technology Transfer duties and conditions in voluntary Order 13175 does not apply to this Advancement Act Federal contracts for goods and proposed action. services.] Therefore, this action is not EPA specifically solicits additional Section 12(d) of the National subject to the requirements of sections comment on this proposed rule from Technology Transfer and Advancement 202 or 205 of the UMRA. tribal officials. Act (NTTAA) of 1995 (Pub. L. 104–113, This action is also not subject to the G. Executive Order 13045: Protection of 12(d) (15 U.S.C. 272 note), directs EPA requirements of section 203 of UMRA Children From Environmental Health to use voluntary consensus standards because it contains no regulatory and Safety Risks (VCS) in its regulatory activities unless requirements that might significantly or EPA interprets EO 13045 (62 FR to do so would be inconsistent with uniquely affect small governments. 19885, April 23, 1997) as applying to applicable law or otherwise impractical. VCS are technical standards (e.g., E. Executive Order 13132: Federalism those regulatory actions that concern health or safety risks, such that the materials specifications, test methods, Executive Order (EO) 13132, entitled analysis required under section 5–501 of sampling procedures, and business ‘‘Federalism,’’ (64 FR 43255, August 10, the Order has the potential to influence practices) that are developed or adopted 1999) requires EPA to develop an the regulation. This action is not subject by VCS bodies. The NTTAA directs EPA accountable process to ensure to EO 13045 because it is based solely to provide Congress, through OMB, ‘‘meaningful and timely input by State on technology performance. explanations when the Agency decides and local officials in the development of This proposed action is not subject to not to use available and applicable VCS. regulatory policies that have federalism the EO because it is not economically This proposed action does not involve implications.’’ ‘‘Policies that have significant as defined in EO 12866; the technical standards. Therefore, we are federalism implications’’ is defined in Agency believes this action represents not considering the use of any voluntary the EO to include regulations that have reasonable further efforts to mitigate consensus standards. ‘‘substantial direct effects on the States, risks to the general public, including on the relationship between the national J. Executive Order 12898: Federal effects on children. This conclusion is Actions To Address Environmental government and the States, or on the based on our assessment of the imposed distribution of power and Justice in Minority Populations and emission limits that would reduce Low-Income Populations responsibilities among the various chlorinated solvent impacts on human levels of government.’’ health associated with exposures to Executive Order 12898 (59 FR 7629, This proposed action does not have halogenated solvent cleaning Feb. 16, 1994) establishes federal federalism implications. It will not have operations. executive policy on environmental substantial direct effects on the States, justice. Its main provision directs on the relationship between the national H. Executive Order 13211: Actions federal agencies, to the greatest extent government and the States, or on the Concerning Regulations That practicable and permitted by law, to distribution of power and Significantly Affect Energy Supply, make environmental justice part of their responsibilities among the various Distribution, or Use mission by identifying and addressing, levels of government, as specified in EO This proposed action is not a as appropriate, disproportionately high 13132. None of the affected halogenated ‘‘significant energy action’’ as defined in and adverse human health or solvent cleaning facilities are owned or Executive Order 13211 (66 FR 28355, environmental effects of their programs, operated by State or local governments. May 22, 2001), because it is not likely policies, and activities on minority Thus, EO 13132 does not apply to this to have a significant adverse effect on populations and low-income proposed action. the supply, distribution, or use of populations in the United States.

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EPA has determined that this disproportionately high and adverse substances, Reporting and proposed rule will not have human health or environmental effects recordkeeping requirements. disproportionately high and adverse on any population, including any Dated: October 3, 2008. human health or environmental effects minority or low-income population. on minority or low-income populations Stephen L. Johnson, because it increases the level of List of Subjects in 40 CFR Part 63 Administrator. environmental protection for all affected Environmental protection, Air [FR Doc. E8–24013 Filed 10–17–08; 8:45 am] populations without having any pollution control, Hazardous BILLING CODE 6560–50–P

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Part III

Department of the Treasury Internal Revenue Service 26 CFR Part 54 Department of Labor Employee Benefits Security Administration 29 CFR Part 2590 Department of Health and Human Services Centers for Medicare & Medicaid Services 45 CFR Parts 144, 146, and 148

Final Rules for Group Health Plans and Health Insurance Issuers Under the Newborn and Mothers, Health Protection Act; Final Rule

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DEPARTMENT OF THE TREASURY Service, Department of the Treasury, at mothers’ and newborns’ benefits for a (202) 622–6080; or Adam Shaw, Centers hospital length of stay in connection Internal Revenue Service for Medicare & Medicaid Services, with childbirth to less than 48 hours Department of Health and Human following a vaginal delivery or 96 hours 26 CFR Part 54 Services, at (877) 267–2323 extension following a delivery by cesarean section. [TD 9427] 61091. The interim final rule— Customer service information: • Provided that the attending RIN 1545–BG82 Individuals interested in obtaining provider makes the determination that copies of Department of Labor an admission is in connection with DEPARTMENT OF LABOR publications concerning health care childbirth; laws may request copies by calling the • Determined when the hospital stay Employee Benefits Security EBSA Toll-Free Hotline at 1–866–444– begins for purposes of application of the Administration EBSA (3272) or may request a copy of general rule; CMS’s publication entitled ‘‘Protecting • Provided an exception to the 48- 29 CFR Part 2590 Your Health Insurance Coverage’’ by hour (or 96-hour) general rule if the RIN 1210–AA63 calling 1–800–633–4227. These attending provider decides, in regulations as well as other information consultation with the mother, to DEPARTMENT OF HEALTH AND on the Newborns’ and Mothers’ Health discharge the mother or her newborn HUMAN SERVICES Protection Act and other health care earlier; laws are also available on the • Clarified the application of Centers for Medicare & Medicaid Department of Labor’s Web site (http:// authorization and precertification Services www.dol.gov/ebsa), including the requirements with respect to the 48- interactive web pages, Health Elaws. hour (or 96-hour) stay; 45 CFR Parts 144, 146, and 148 SUPPLEMENTARY INFORMATION: • Explained the application of benefit RIN 0938–AI17 I. Background restrictions and cost-sharing rules with respect to the 48-hour (or 96-hour) stay; Final Rules for Group Health Plans and The Newborns’ and Mothers’ Health • Clarified the prohibitions with Health Insurance Issuers Under the Protection Act of 1996 (Newborns’ Act), respect to a plan or issuer offering Newborns’ and Mothers’ Health Public Law 104–204, was enacted on mothers incentives or disincentives to Protection Act September 26, 1996. The rules encourage less than the 48-hour (or 96- contained in this document implement hour) stay; AGENCIES: Internal Revenue Service, changes made to the Employee • Clarified the prohibitions against Department of the Treasury; Employee Retirement Income Security Act of 1974 incentives and penalties with respect to Benefits Security Administration, (ERISA) and the Public Health Service attending providers; and Department of Labor; Centers for Act (PHS Act) made by the Newborns’ • Included the statutory notice Medicare & Medicaid Services, Act, and parallel changes to the Internal provisions under ERISA and the PHS Department of Health and Human Revenue Code of 1986 (Code) enacted as Act. In general, these final regulations Services. part of the Taxpayer Relief Act of 1997 do not change the interim final rules. ACTION: Final rules. (TRA ’97). The Newborns’ Act was However, the text of these final enacted to provide protections for regulations incorporates a clarifying SUMMARY: This document contains final mothers and their newborn children statement from the preamble of the rules for group health plans and health with regard to hospital lengths of stay interim final rules that the definition of insurance issuers concerning hospital following childbirth. Interim final rules attending provider does not include a lengths of stay for mothers and implementing the group and individual plan, hospital, managed care newborns following childbirth, market provisions of the Newborns’ Act organization, or other issuer. The text pursuant to the Newborns’ and Mothers’ were published in the Federal Register also makes a small clarification with Health Protection Act of 1996 and the on October 27, 1998 (63 FR 57546) (the respect to state law applicability. Taxpayer Relief Act of 1997. interim final rules). In addition, these final regulations DATES: Effective Date: These final These regulations being published make minor clarifications to the notice regulations are effective December 19, today in the Federal Register finalize requirements for nonfederal 2008. the interim final rules. The final governmental plans. The interim final Applicability Dates: Group market regulations implementing the group rules specified that the notice of post- rules. These final regulations for the market provisions of the Newborns’ Act childbirth hospitalization benefits must group market apply to group health are issued jointly by the Secretaries of 1 be included in the plan document that plans and group health insurance the Treasury, Labor, and HHS. The described plan benefits to participants issuers for plan years beginning on or individual market final regulations are 2 and beneficiaries. These final after January 1, 2009. issued solely by HHS. regulations specify that any notice a Individual market rules. These final II. Overview of the Regulations nonfederal governmental plan must regulations for the individual market Section 9811 of the Code, section 711 provide under these regulations can be apply with respect to health insurance included either in the plan document coverage offered, sold, issued, renewed, of ERISA, and sections 2704 and 2751 of the PHS Act (the Newborns’ Act that describes benefits, or in the type of in effect, or operated in the individual document the plan generally uses to market on or after January 1, 2009. provisions) provide a general rule under which a group health plan and a health inform participants and beneficiaries of FOR FURTHER INFORMATION CONTACT: insurance issuer may not restrict plan benefit changes. These final Amy Turner or Beth Baum, Employee regulations also specify that any time a Benefits Security Administration, 1 26 CFR 54.9811–1, 29 CFR 2590.711, 45 CFR plan distributes one or both of these Department of Labor, at (202) 693–8335; 146.130. documents after providing the initial Russ Weinheimer, Internal Revenue 2 45 CFR 148.170. notice, the applicable statement must

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appear in one or both of these Some comments requested that The Departments devoted documents. additional titles, such as pediatric nurse considerable resources over a sustained practitioners, or nurse practitioners, be period of time to develop rules that Hospital Length of Stay specifically mentioned in the definition. provide greater specificity for The interim final rules and these final While positions with these titles may distinguishing between negotiated regulations provide that when a delivery meet the definition in many cases, as compensation arrangements that would occurs in the hospital, the stay begins at noted above, the language of the give attending providers an incentive to the time of delivery (or, in the case of regulation takes a functional approach deliver health care services efficiently multiple births, at the time of the last and does not provide a list of titles or and arrangements that could give delivery) rather than at the time of positions that qualify as attending providers an incentive to discharge admission or onset of labor. Also, the providers. This functional approach is patients in contravention of the statute interim final rules and these final more useful in addressing who the and regulations. The great variety, regulations provide that when a delivery attending provider is on an ongoing complexity, and mutability of such occurs outside of the hospital, the stay basis, as specific position titles and arrangements 3 would have required begins at the time the mother or responsibilities may vary from location extensive rules that at best were likely newborn is admitted (rather than at the to location as well as over time. to impose heavy administrative costs time of delivery). It was also suggested that the text of and yet were still of only marginal value Some comments expressed concern the final regulations incorporate a in clarifying what arrangements would that this rule somehow required birthing clarifying statement from the preamble be permissible. For this reason, the rules centers or other non-hospital facilities to of the interim final rules that the on compensation arrangements for extend the right to stay to more than 24 definition of attending provider does attending providers are adopted hours. These comments noted that such not include a plan, hospital, managed unchanged from the interim final rules. extended stays may violate local care organization, or other issuer. These The final regulations do not attempt regulations or otherwise conflict with final regulations adopt this suggestion. to provide guidance on this issue the operations of such facilities. The through examples. Certainly the bonus Compensation of Attending Provider statute and these final regulations do arrangement described in one comment, not require hospitals or other facilities Several comments addressed the based on the percentage of discharges to provide particular lengths of stay, but provisions in the interim final rules that within 24 hours, violates the prohibition instead require group health plans and relate to the compensation of physicians against providing inducements for early health insurance issuers to provide and other attending providers. These discharge. Such an example is not benefits for particular hospital lengths provisions prohibit plans and issuers included in the final regulations to of stay. from penalizing attending providers avoid the inference that anything less A comment recommended that if a who provide care in accordance with blatant would be permissible. Examples delivery was planned for outside of a the regulations, and prohibit plans and of less blatant arrangements could be hospital, any following admission in issuers from inducing attending similarly misleading, whether the response to complications resulting providers to provide care in a manner conclusion was that the arrangement from that delivery should be excluded that is inconsistent with the regulations. was permissible or impermissible, since from the provisions providing for At the same time, the statute specifies there are bound to be differences particular lengths of stay. These final that plans and issuers are still free to between arrangements that would have regulations do not distinguish between negotiate with attending providers the been described in the regulations and a delivery that was planned for outside level and type of compensation for care any actual arrangement for an attending of the hospital and other deliveries furnished in accordance with the provider, and in some cases even minor occurring outside of a hospital. regulations. differences could change the result. The comments requested greater Definition of Attending Provider Authorization and Precertification specificity in the final regulations for The interim final rules and these final distinguishing between the types of The mandatory coverage period regulations provide, under paragraph compensation arrangements that are provisions are not violated if the (a), that a group health plan or a health permissible under the negotiation attending provider, in consultation with insurance issuer may not require a provision and those that are the mother, decides to discharge the physician or other health care provider impermissible under the prohibitions mother or newborn earlier. Under the to obtain authorization from the plan or against penalties and inducements. One interim final rules and these final issuer to prescribe a hospital length of comment suggested that it is clear that regulations, the attending provider is stay that is subject to the general rule. defined by a functional analysis of state a bonus arrangement for obstetricians licensure rules and the actual and gynecologists contingent on the 3 Broad classes of examples include fee-for- performance of care. Under this percentage of discharges within 24 service, capitation, productivity-based salary, definition, the attending provider is hours would not be permitted. The incentive contracting, blended systems, prospective restricted to an individual who is comment requested confirmation that versus post-service payment, etc. See e.g., Theory and Practice in the Design of Physician Payment licensed under applicable state law to arrangements with a more general focus Incentives, James C. Robinson (University of provide maternal or pediatric care and would be permitted, such as a global California, Berkley), The Milbank Quarterly, Vol. who is directly responsible for payment for prenatal care and 79, No. 2, 2001; Regulation of Managed Care providing such care to a mother or childbirth, or a bonus for a multi- Incentive Payments to Physicians, Stephen Latham (Boston University School of Law), 22 Am. J.L. & newborn child. While the preamble to specialty group including obstetricians Med. 399; Blended Payment Methods in Physician the interim final rules noted that this and gynecologists based on the Organizations Under Managed Care, James C. definition could include a nurse utilization for all patients served by the Robinson, JAMA 1999;282:1258–1263; The midwife or physician assistant, the group. Another comment expressed a Alignment and Blending of Payment Incentives Within Physician Organizations, JC Robinson, SM regulation itself does not provide a list concern about whether capitated Shortell, R Li, LP Casalino, T Rundall, Health of titles or positions that qualify as arrangements are consistent with the Services Research Vol 39, Issue 5, pages 1589–1606, attending providers. hospital length-of-stay requirements. Oct. 2004.

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Under paragraph (b) of the interim notice requirements, to the extent under the plan relating to hospital final rules and these final regulations, a permissible under the preexisting lengths of stay in connection with plan or issuer may not restrict benefits condition rules in 26 CFR 54.9801–3, 29 childbirth for the mother or newborn for part of a stay that is subject to the CFR 2590.701–3, and 45 CFR 146.111 child. If federal law applies in some general rule in a way that is less and 148.120.4 areas in which the plan operates and favorable than a prior portion of the state law applies in other areas, the SPD Notice Requirements under ERISA and stay. An example in the interim final should describe the different areas and the PHS Act rules and these final regulations the federal or state law requirements illustrates that a plan or issuer is This section of the final regulations applicable in each. Model language for precluded from requiring a covered addresses the Newborns’ Act notice plans subject to the federal Newborns’ individual to obtain precertification for requirements under ERISA and the PHS Act’s requirements is included in the any portion of a hospital stay that is Act. The interim final rules, and these SPD content regulation. This change subject to the general rule if final regulations, contain different became applicable as of the first day of precertification is not required for any notice provisions for ERISA-covered the second plan year beginning on or preceding portion of the stay. However, group health plans, nonfederal after January 22, 2001. the interim final rules do not prevent a governmental plans, and health Some comments asked for plan or issuer from requiring insurance issuers in the individual clarification about whether the notice precertification for any portion of a stay market. ERISA-covered group health can be provided through electronic after 48 hours (or 96 hours), or from plans are required to comply with the media, as an alternative to traditional requiring precertification for an entire ERISA notice regulations, whether paper disclosure. Under ERISA, the stay. insured or self-insured. Nonfederal notice can be provided through Under paragraph (c) of the interim governmental plans and health electronic media if the plan complies final rules and these final regulations, a insurance issuers in the individual with ERISA’s electronic disclosure rules plan or issuer may not increase an market are required to comply with the in 29 CFR 2520.104b–1. individual’s coinsurance for any later PHS Act notice regulations. Because Some comments requested that the portion of a 48-hour (or 96-hour) there are fundamental differences rules require plans to provide hospital stay. An example in the interim between the types of entities regulated information to patients and providers final rules and these final regulations under ERISA as compared to the PHS regarding who has legal oversight with illustrates that plans and issuers may Act, and in the structure of the two acts, respect to the Newborns’ Act and who vary cost-sharing in certain the notice requirements in the ERISA to contact in the event of a violation. circumstances, provided the cost- regulations and PHS Act regulations However, this concern is already sharing rate is consistent throughout the differ. addressed by current regulation. Under 48-hour (or 96-hour) hospital length of Notice Requirements under ERISA. 29 CFR 2520.102–3(t)(1) of the SPD stay. The interim final rules and these final content rules, ERISA plans are required One comment asked whether less regulations require group health plans to provide a statement of ERISA rights favorable cost sharing for the 48-hour that are subject to ERISA to comply with in the SPD. Among other things, this (or 96-hour) stay can be applied to summary plan description (SPD) provision requires ERISA-covered plans covered individuals who fail to give disclosure requirements at 29 CFR to provide information on the advance notice or notice upon 2520.102–3(u). The SPD rules generally enforcement of a participant or admission for the services or providers require that participants and beneficiary’s rights and who to contact related to the stay, if such a penalty beneficiaries in a group health plan be if there are any questions about the applies in other hospitalization furnished an SPD to apprise them of plan. situations. This issue was addressed in their rights and obligations. The rules Notice Requirements under the PHS Example 2 of paragraph (c)(3) of the also prescribe the content of the SPD Act. Nonfederal governmental plans. interim final rules. This example is and the manner and timing in which The Newborns’ Act requires nonfederal repeated in the final regulations and participants and beneficiaries are to be governmental plans to comply with the illustrates that a plan may require notified of any material modification to Newborns’ Act notice requirements advance notice for services or providers the terms of the plan or any change in under section 711(d) of ERISA as if related to hospital length of stay in the information required to be included section 711(d) applied to such plans. connection with childbirth, in order for in the SPD. The interim final rules and these final a covered individual to obtain more In November 2000, the Department of regulations require plans that are subject favorable cost sharing under the plan or Labor finalized the SPD content to the federal Newborns’ Act coverage. Such requirements may not be regulation (65 FR 70241) requiring that requirements to provide a notice with used to deny an individual benefits for all group health plans (including specific language describing the federal any portion of the 48-hour (or 96-hour) insured plans not subject to the federal requirements. Under the interim final stay based on a determination of Newborns’ Act) provide language in the rules and these final regulations, if medical necessity or appropriateness. SPD that describes the federal or state federal law applies in some areas in Any variance in cost-sharing related to law requirements applicable to the plan which the plan operates and state law compliance with a plan’s or an issuer’s or any health insurance coverage offered applies in others, the plan must provide advance notice requirements must be the appropriate notice to each applied consistently throughout the 48- 4 In order to avoid imposing an impermissible participant and beneficiary who is hour (or 96-hour) stay. Under the preexisting condition exclusion, plans and group covered by federal law. health insurance issuers that require individuals to principles set forth in the rule and notify the plan or issuer of pregnancy within a Several comments on the interim final illustrated in this example, a plan or certain amount of time (for example, within the first rules objected that specific language was issuer could generally apply less trimester) must waive or modify the notice required for the disclosure statement, favorable cost sharing towards the requirement for individuals who enroll in the plan and suggested that the regulation after the time notice was required. This also applies hospital length of stay in connection to individual market issuers with respect to instead should have provided with childbirth of an individual who federally eligible individuals they are required to guidelines for plans to base their own failed to satisfy the plan’s advance enroll. language on (such as language that

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comports with the Department of that language into their documents since guidelines), the statute only addresses Labor’s sample language). However, the effective date of the interim final the period following a vaginal delivery requiring specific language ensures the rules, continuing to require that same or a caesarean section. Accordingly, substantive adequacy of the notices. language is the simplest approach. although guidelines issued by Additionally, because many plans These final regulations retain the professional medical associations such presumably have already incorporated notice exception in the interim final as the American College of Obstetricians that mandatory language into their rules for issuers that are subject only to and Gynecologists (ACOG) cover a documents since the effective date of state insurance law requirements spectrum of care both before and after the interim final rules, continuing to regarding hospital lengths of stay childbirth, the only relevant guidelines require that language is the simplest following childbirth. for this purpose are those pertaining to approach. As in the interim final rules, these Applicability in States care following childbirth. Therefore, the final regulations require nonfederal The statute and the interim final rules final rules include an express governmental plans to provide notice include an exception to the Newborns’ clarification that State law need only not later than 60 days after the first day Act requirements for health insurance require coverage in accordance with of the plan year following the effective coverage in certain states. Specifically, professional guidelines that deal with date, regardless of whether the plan had the Newborns’ Act and the interim final care following childbirth. Guidelines already provided notice under the rules do not apply with respect to health relating to other issues are not relevant Department of Labor standards. This insurance coverage if there is a state law for this purpose. takes into account the fundamental that meets any of the criteria 5 that One comment to the interim final differences between the nonfederal follow: • rules supported the criteria used in governmental plans regulated under the The state law requires health those rules for determining whether the PHS Act and the types of entities insurance coverage to provide at least a federal Newborns’ Act applies in a given regulated under ERISA. However, with 48-hour (or 96-hour) hospital length of state. However, another comment respect to the requirement that notice be stay in connection with childbirth; objected to the fact that issuers in states provided within that 60-day period, the • The state law requires health final regulations include an exception insurance coverage to provide for that have enacted one of the three types for plans with regard to participants and maternity and pediatric care in of state laws described in the federal beneficiaries for whom the plan has accordance with guidelines established Newborns’ Act would arguably be already provided notices in accordance by the American College of exempt from several of the federal Act’s with the interim final regulations that Obstetricians and Gynecologists, the requirements, such as the prohibitions are consistent with these final American Academy of Pediatrics, or any on offering incentives to providers to regulations (such as self-insured other established professional medical induce them to provide care in a nonfederal governmental plans that are association; or manner inconsistent with the Act. This subject to the federal Newborns’ Act • The state law requires that comment asked us to reconsider requirements and that have already decisions regarding the appropriate whether the regulations should provide provided such notices). hospital length of stay in connection such a broad exception from the federal Health insurance issuers in the with childbirth be left to the attending Act’s requirements in such states. The individual market. The Newborns’ Act provider in consultation with the statutory language does not require state requires health insurance issuers in the mother. The interim final rules and law to include all the federal provisions, individual market to comply with the these final regulations clarify that state such as the anti-incentive provisions, in Newborns’ Act notice requirements laws that require the decision to be order for health insurance coverage in under section 711(d) of ERISA as if made by the attending provider with the that state to be excepted from the federal section 711(d) applied to such issuers. consent of the mother satisfy this requirements. In light of this flexibility, Thus, the interim final rules and these criterion. these final regulations retain the final regulations require individual Although this exception applies with exception from the interim final rules. market health insurance issuers that respect to insured group health plans, it provide benefits for hospital lengths of does not apply with respect to a group Applicability Date stay in connection with childbirth to health plan to the extent the plan include, in the insurance contract, a provides benefits for hospital lengths of These final rules apply to group rider, or equivalent amendment to the stay in connection with childbirth other health plans, and health insurance contract, specific language that notifies than through health insurance coverage. issuers offering group health insurance policyholders of their rights under the Accordingly, self-insured plans in all coverage, for plan years beginning on or Newborns’ Act. The interim final rules states generally are required to comply after January 1, 2009. The final rules for and these final regulations also require with the federal requirements (except the individual market apply with such issuers to provide this notice not those nonfederal governmental plans respect to health insurance coverage later than a specific time frame that is that have opted out of the PHS Act offered, sold, issued, renewed, in effect, within a few months after the effective requirements). or operated in the individual market on date of the regulations. These final regulations repeat the or after January 1, 2009. Until the Several comments on the interim final statute and the interim final rules with applicability date for this regulation, rules objected that specific language was one clarification. With respect to the plans and issuers are required to required for the disclosure statement second criterion above (professional and suggested instead there should be continue to comply with the corresponding sections of the guidelines for issuers to base their own 5 HHS has the responsibility to enforce the federal language on. However, requiring Newborns’ Act with regard to issuers in states that regulations previously published in the specific language ensures the do not have one of the three types of state laws Federal Register (63 FR 57546) and described in the Newborns’ Act. As of the other applicable regulations. substantive adequacy of the notices. publication of these final regulations, the only state Additionally, because issuers in which HHS is enforcing the Newborns’ Act with presumably have already incorporated respect to issuers is Wisconsin.

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III. Economic Impact and Paperwork cost of health coverage. Plans can result in a rule (1) having an annual Burden mitigate costs by increasing cost-sharing effect on the economy of $100 million or by reducing non-mandated benefits. or more, or adversely and materially Summary—Department of Labor and This in turn shifts the economic burden affecting a sector of the economy, Department of Health and Human of the regulation to plan participants, productivity, competition, jobs, the Services and may induce some employers and environment, public health or safety, or The Newborns’ Act provisions employees, as well as those in the state, local or tribal governments or generally prohibit group health plans individual insurance market, to drop communities (also referred to as and group health insurance issuers from coverage. The cost of enacting federal ‘‘economically significant’’); (2) creating limiting hospital lengths of stay in minimum stay regulation is estimated to serious inconsistency or otherwise connection with childbirth to less than fall between $139 and $279 million interfering with an action taken or 48 hours for vaginal deliveries and 96 annually.7 However, as this constitutes planned by another agency; (3) hours for cesarean sections and from a small fraction of one percent of total materially altering the budgetary requiring a health care practitioner to health care expenditures, it would most impacts of entitlement grants, user fees, obtain preauthorization for such stays. likely be a small, possibly negligible, or loan programs or the rights and For insured coverage, the Newborns’ factor in most employers’ decisions to obligations of recipients thereof; or (4) Act allows any state law, meeting one of offer health coverage and individuals’ raising novel legal or policy issues three criteria, to take its place. The decisions to enroll. arising out of legal mandates, the Departments have crafted these While the interim final regulations President’s priorities, or the principles regulations to secure the Act’s clarified several provisions within the set forth in the Executive Order. protections in as economically efficient statute, this action serves primarily to Pursuant to the terms of the Executive a manner as possible, and believe that provide the certainty associated with a Order, it has been determined that this the economic benefits of the regulations final rule for the regulated community, action is ‘‘economically significant’’ and 6 justify their costs. as well as update the cost of the is subject to OMB review under Section The primary economic benefits regulation, adjusting for changes in the 3(f) of the Executive Order. Consistent associated with securing these landscape of the community. Because with the Executive Order, the minimum lengths of stay derive from these regulations are being published Departments have assessed the costs the reduction in complications linked to several years after the Newborns’ Act’s and benefits of this action. The premature discharge of mothers and passage and minimal interpretation of Departments’ assessment, and the newborns. Complications that are easily the statutory language was required, the analysis underlying the assessment, is treated and readily identifiable, like regulatory implementation costs should detailed below. The Departments excessive bleeding and infection in new be negligible. Costs of the final performed a comprehensive, unified mothers and dehydration and regulation are detailed below in the analysis to estimate the costs and hyperbilirubinemia in their newborns, section entitled ‘‘Unified Analysis of benefits attributable to the regulations are common causes for readmission Costs and Benefits.’’ Benefits of the for purposes of compliance with following a premature discharge. These regulation are also discussed in that Executive Order 12866, the Regulatory complications and the subsequent section at length, although because the Flexibility Act, and the Paperwork readmissions are expensive and cause benefits primarily involve quality of life Reduction Act. These final regulations are needed to avoidable suffering for mothers and improvements, the Departments have provide certainty for the affected their newborns. not attempted to quantify them. They By eliminating the need to obtain community, as well as clarify the do, however, believe them to be preauthorization for affected stays, the economic burden that the Newborns’ sufficiently large so as to justify the cost Act provides affected individuals with Act will place on health plans and their of the regulation. increased access to the health care participants. The Departments believe system. Increased access fosters timelier Executive Order 12866—Department of that this regulation’s benefits will justify and fuller medical care, better health Labor and Department of Health and its costs. This belief is grounded in the outcomes, and improved quality of life. Human Services assessment of costs and benefits that is summarized earlier and detailed below. This is especially true for certain Under Executive Order 12866, the individuals affected by the Newborns’ Departments must determine whether a Regulatory Flexibility Act—Department Act provisions. For example, lower- regulatory action is ‘‘significant’’ and of Labor and Department of Health and income individuals, when denied therefore subject to the requirements of Human Services coverage for the full length of stay, are the Executive Order and subject to more likely to forego care for financial The Regulatory Flexibility Act (5 review by the Office of Management and U.S.C. 601 et seq.) (RFA) imposes reasons. When adverse health outcomes Budget (OMB). Under section 3(f), the result, costs for the individual and the certain requirements with respect to order defines a ‘‘significant regulatory Federal rules that are subject to the plan are high. For these individuals action’’ as an action that is likely to especially, this requirement is more notice and comment requirements of section 553(b) of the Administrative likely to mean receiving timely, quality 7 The vast majority of this cost is attributable to postnatal care, and living healthier the impact of the statute. ($14 million is the upper Procedure Act (5 U.S.C. 551 et seq.) and lives. bound cost attributable to the exercise of regulatory likely to have a significant economic Any mandate to increase the richness discretion.) Moreover, there are no increased costs impact on a substantial number of small attributable to any new exercise of regulatory entities. Unless an agency certifies that of health benefits, however, adds to the discretion in the final rule. Instead, the final rule repeats the interpretations of the interim final rule. a final rule will not have a significant 6 The Newborns’ Act still requires that insured Any increased costs over the 1998 estimate in the economic impact on a substantial plans disclose a notice outlining participants’ rights interim final rules are attributable to economic number of small entities, section 604 of regarding hospital lengths of stay related to factors, such as increased cost of care (from 1996 the RFA requires that the agency present childbirth. Nonetheless, final regulations related to to 2007 dollars), increased number of births, and that notice were published separately (see 65 FR increased number of participants and beneficiaries a final regulatory flexibility analysis 70266, Nov. 21, 2000) and so those costs are not covered by self-insured plans to which the (FRFA) at the time of the publication of included herein. regulations apply. the notice of final rulemaking describing

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the impact of the rule on small entities. between nine and nineteen dollars for information collection burdens Small entities include small businesses, those plans affected, or a small fraction associated with the Newborns’ Act in organizations, and governmental of one percent of total small plan the interim rules (Information jurisdictions. expenditures.8 Collection Requirements Referenced in Because the 1998 rules were issued as The Departments estimate that prior HIPAA for the Group Market, interim final rules and not as a notice to the Act, 115,000 small plans with 1.6 Supporting Regulations 45 CFR 146), of proposed rulemaking, the RFA did million participants would have published in the Federal Register on not apply and the Departments were not restricted lengths of stay in connection April 8, 1997. These collection required to either certify that the rule with childbirth or required requirements were approved under would not have a significant impact on preauthorization for such stays.9 While OMB Control Number 0938–0702, a substantial number of small entities or this represents just 5 percent of all small expiring on August 31, 2009. conduct a regulatory flexibility analysis. plans, the Departments believe it may The Departments nonetheless crafted represent a substantial number of small Special Analyses—Department of the those regulations in careful entities. Treasury consideration of effects on small Notwithstanding the determinations Paperwork Reduction Act—Department entities, and conducted an analysis of of the Departments of Labor and of of Labor and Department of Health and the likely impact of the rules on small Health and Human Services, for Human Services entities. This analysis was detailed in purposes of the Department of the the preamble to the interim final rule. 1. Department of Labor Treasury it has been determined that For purposes of this discussion, the These rules contain no new this Treasury decision is not a Departments consider a small entity to information collection requirements that significant regulatory action. Therefore, be an employee benefit plan with fewer are subject to review and approval by a regulatory assessment is not required. than 100 participants. Pursuant to the OMB under the Paperwork Reduction It has also been determined that section authority of section 104(a)(3) of ERISA, Act of 1995 (Pub. L. 104–13, 44 U.S.C. 553(b) of the Administrative Procedure the Department of Labor has previously Chapter 35). The Department of Labor Act (5 U.S.C. chapter 5) does not apply issued at 29 CFR 2520.104–20, reported the information collection to these Treasury regulations, and, 2520.104–21, 2520.104–41, 2520.104–46 burdens associated with the Newborns’ because these regulations do not impose and 2520.104b–10, certain simplified Act in the interim rules (Interim Rules a collection of information on small reporting provisions and limited Amending ERISA Disclosure entities, a Regulatory Flexibility exemptions from reporting and Requirements for Group Health Plans) Analysis under the Regulatory disclosure requirements for small plans, implementing section 711(d) of ERISA Flexibility Act (5 U.S.C. chapter 6) is including unfunded or insured welfare that were published in the Federal not required. Pursuant to section 7805(f) plans covering fewer than 100 Register on April 8, 1997 (62 FR 16979). of the Code, the notice of proposed participants and which satisfy certain OMB approved the information rulemaking preceding these regulations other requirements. collection under OMB Control Number was submitted to the Small Business Further, while some small plans are 1210–0039, expiring on March 31, 2010. Administration for comment on its maintained by large employers, most are impact on small business. maintained by small employers. Both 2. Department of Health and Human Congressional Review Act small and large plans may enlist small Services third party service providers to perform These rules contain no new These regulations are subject to the administrative functions, but it is information collection requirements that Congressional Review Act provisions of generally understood that third party are subject to review and approval by the Small Business Regulatory service providers shift their costs to OMB under the Paperwork Reduction Enforcement Fairness Act of 1996 (5 their plan clients in the form of fees. Act of 1995 (Pub. L. 104–13, 44 U.S.C. U.S.C. 801 et seq.) and have been Thus, the Departments believe that Chapter 35). HHS reported the transmitted to Congress and the assessing the impact of this final rule on Comptroller General for review. These small plans is an appropriate substitute 8 Departments’ estimates using the 2005 Medical regulations, however, are considered a for evaluating the effect on small Expenditures Panel Survey Household Component ‘‘major rule,’’ as that term is defined in entities. The definition of small entity (MEPS–HC), the 2006 Medical Expenditures Panel 5 U.S.C. 804, because they are likely to considered appropriate for this purpose Survey Insurance Component (MEPS–IC) and the result in an annual effect on the National Centers for Disease Control and Prevention differs, however, from a definition of (CDC) National Hospital Discharge Survey: 2005 economy of $100 million or more. small business based on size standards Annual Summary with Detailed Diagnosis and Unfunded Mandates Reform Act promulgated by the Small Business Procedure Data determined that of participants Administration (SBA) (13 CFR 121.201) affected by the regulation, 11 percent were enrolled For purposes of the Unfunded in small plans. Costs born by small plans were 11 Mandates Reform Act of 1995 (Pub. L. pursuant to the Small Business Act (5 percent of all costs. U.S.C. 631 et seq.). The Department of 9 Estimates are based on the 2006 MEPS–IC. It 104–4), as well as Executive Order Labor solicited comments on the use of should be noted, however, that the Pregnancy 12875, these regulations do not include this standard for evaluating the impact Discrimination Act of 1978 allows firms with less any federal mandate that may result in of the proposed regulations on small than 15 employees that offer health insurance to expenditures by state, local, or tribal exclude maternity care. The 2000 Mercer/Foster 10 entities. No comments were received Higgins National Survey of Employer Sponsored governments, however, they include with respect to this standard. Health Plans found that 7 percent of firms with 10– mandates which may impose an annual The Departments believe that the final 24 employees did not offer such benefits, but the burden of $100 million or more on the survey did not examine smaller firms. Rough private sector, updated annually for regulation will not have a significant estimates by the Departments suggest that the share economic impact on a substantial of firms with 9 or fewer employees that offer health inflation. After applying the most number of small entities. The direct benefits but exclude maternity benefits is 21 costs of restricting short stay policies is percent. As the cost of these benefits rises, this 10 Nonfederal governmental plans can opt-out of share is likely to increase which, while having a these requirements and it was assumed that those estimated to fall between $15 million small effect on the number of participants affected States that had rules in place that supplanted the and $31 million for small plans which by the regulation, might significantly decrease the Newborns’ Act (that is, all States except one) amount to a per-participant cost of number of small plans affected by the regulation. would.

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current gross domestic product implicit federal requirements applicable to group reports that States may not be enforcing price deflator in 2008, that threshold is health plans and health insurance the Newborns’ Act requirements, and approximately $130 million. issuers concerning hospital lengths of the mechanism for allocating stay for mothers and newborns responsibility between the States and Federalism Statement Under Executive following childbirth do not apply if CMS. In compliance with Executive Order 13132—Department of Labor and State law meets one or more of three Order 13132’s requirement that agencies Department of Health and Human specific criteria in the statute.12 The examine closely any policies that may Services accompanying conference report states have federalism implications or limit Executive Order 13132 outlines that it is the intent of the conferees that the policymaking discretion of the fundamental principles of federalism. It States may impose more favorable States, the Department of Labor and requires adherence to specific criteria by requirements for the treatment of CMS have consulted and worked federal agencies in formulating and maternity coverage under health cooperatively with affected State and implementing policies that have insurance coverage than required by the local officials. ‘‘substantial direct effects’’ on the Newborns’ Act. H.R. Conf. Rep. No. For example, the Departments sought States, the relationship between the 104–812, 104th Cong. 2d Session 88 and received input from State insurance national government and States, or on (1996). regulators and the National Association the distribution of power and Guidance conveying the Newborns’ of Insurance Commissioners (NAIC). responsibilities among the various Act hospital length of stay requirements The NAIC is a non-profit corporation levels of government. Federal agencies was published in the Federal Register established by the insurance promulgating regulations that have on October 27, 1998 (63 FR 57546). commissioners of the 50 States, the these federalism implications must These final regulations clarify and District of Columbia, and the four U.S. consult with State and local officials, implement the statute’s minimum territories. In most States the insurance and describe the extent of their standards and do not significantly commissioner is appointed by the consultation and the nature of the reduce the discretion given the States by governor; in approximately 14 States, concerns of State and local officials in the statute. Moreover, the Departments the insurance commissioner is an the preamble to the regulation. understand that all but one State have elected official. Among other activities, In the Departments’ view, these final requirements that prescribe benefits for it provides a forum for the development regulations have federalism hospital lengths of stay in connection of uniform policy when uniformity is implications because they may have with childbirth that satisfy the appropriate. Its members meet, discuss substantial direct effects on the States, Newborns’ Act requirements. and offer solutions to mutual problems. the relationship between the national The Newborns’ Act modified HIPAA’s The NAIC sponsors quarterly meetings government and States, or on the framework to provide that the States to provide a forum for the exchange of distribution of power and have primary responsibility for ideas and in-depth consideration of responsibilities among the various enforcement of the provisions of the insurance issues by regulators, industry levels of government. However, in the Newborns’ Act as they pertain to representatives and consumers. CMS Departments’ view, the federalism issuers, but that the Secretary of Health and Department of Labor staff have implications of these final regulations and Human Services must enforce any consistently attended these quarterly are substantially mitigated because, provision that a State fails to meetings to listen to the views of the with respect to health insurance issuers, substantially enforce. To date, CMS State insurance departments. all but one of the States have enforces the Newborns’ Act hospital In addition, the Departments requirements that prescribe benefits for length of stay requirements in only one informally consulted with the NAIC in hospital lengths of stay in connection State. When exercising its responsibility developing the interim final regulations. with childbirth that satisfy the to enforce the Newborns’ Act Through the NAIC, the Departments Newborns’ Act hospital length of stay provisions, CMS works cooperatively sought and received the input of State requirements. with the State for the purpose of insurance departments regarding In general, through section 514, addressing the State’s concerns and preemption of State laws, applicability ERISA supersedes State laws to the avoiding conflicts with the exercise of of the Newborns’ Act provisions, and extent that they relate to any covered State authority. CMS has developed certain insurance industry definitions employee benefit plan, but preserves procedures to implement its (e.g., attending provider). In general, State laws that regulate insurance. At enforcement responsibilities, and to these final regulations do not change the the same time, however, ERISA afford the States the maximum interim final rules. Significantly, the prohibits States from regulating a plan opportunity to enforce the Newborns’ Departments received only eleven as an insurance company. HIPAA added Act requirements in the first instance. formal comment letters on the interim a new section to ERISA (as well as to the CMS procedures address the handling of final regulation, none of which were PHS Act and the Code) narrowly from or on behalf of the NAIC or any of preempting State requirements for 12 The federal requirements concerning hospital the States. issuers of group health insurance lengths of stay in connection with childbirth do not The Departments have also 11 apply with respect to health insurance coverage if cooperated with the States in several coverage. HIPAA’s conference report state law requires (1) such coverage to provide for states that the conferees intended only at least a 48-hour hospital length of stay following ongoing outreach initiatives, through the narrowest preemption of State laws a vaginal delivery and at least a 96-hour length of which information is shared among with regard to health insurance issuers. stay following a delivery by cesarean section, (2) federal regulators, State regulators and such coverage to provide for maternity and the regulated community. In particular, H.R. Conf. Rep. No. 736, 104th Cong. 2d pediatric care in accordance with guidelines Session 205 (1996). established by the American College of the Department of Labor has established The Newborns’ Act also added a new Obstetricians and Gynecologists, the American a Health Benefits Education Campaign section to ERISA (and to the PHS Act Academy of Pediatrics, or other established with more than 70 partners, including professional medical associations, or (3) in CMS, NAIC and many business and and the Code) which provides that the connection with such coverage for maternity care, that the hospital length of stay for such care is left consumer groups. CMS has sponsored 11 The Newborns’ Act was incorporated into the to the decision of (or is required to be made by) the conferences with the States—the administrative framework established by HIPAA. attending provider in consultation with the mother. Consumer Outreach and Advocacy

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conferences in March 1999 and June This regulation is needed to clarify 22 percent of healthy births by privately 2000, and the Implementation and and interpret the Newborns’ Act insured women would be affected by Enforcement of HIPAA National State- provisions under section 711 of ERISA, the provision.16 If each woman then Federal Conferences in August 1999, sections 2704 and 2751 of the PHS Act, stayed the maximum period outlined in 2000, 2001, 2002, and 2003. and section 9811 of the Internal the statute, approximately 348,000 Furthermore, both the Department of Revenue Code and to ensure that group additional days of hospital care would Labor and CMS Web sites offer links to health plans and health insurance be required.17 Assuming hospitals important State Web sites and other issuers subject to these rules do not charge $800 per day for postpartum resources, facilitating coordination impermissibly restrict benefits or care, the annual cost of the provision between the State and federal regulators require preauthorization for 48-hour or would be $279 million: $1.7 million of and the regulated community. 96-hour hospital lengths of stay in which would be attributable to the Throughout the process of developing connection with childbirth. individual market in Wisconsin; the remaining $276.9 million would be these regulations, to the extent feasible 2. Costs and Benefits of the Statute within the specific preemption attributable to the group market in provisions of HIPAA and the Newborns’ The Departments provide qualitative Wisconsin and self-funded plans Act, the Departments have attempted to assessments of the nature of the costs throughout the country. However, balance the States’ interests in and benefits that are expected to derive because the statute does not require a regulating health insurance issuers, and from the statutory provisions of the 48- or 96-hour stay, but instead gives the Congress’ intent to provide uniform Newborns’ Act. In addition, the decision-making authority to the minimum protections to consumers in Departments provide summaries of any attending physician in consultation every State. By doing so, it is the credible, empirical estimates of these with the mother, it is expected that not Departments’ view that they have effects that are available. all of these births will result in complied with the requirements of In order to determine how many plan additional hospital time. If only one-half Executive Order 13132. participants could benefit from the of affected mothers had their stays Pursuant to the requirements set forth Newborns’ Act provision, the extended by the full amount, the annual in Section 8(a) of Executive Order Departments considered the estimated cost of the provision would be $139 2.8 million births in 2005 by women million, less than $1 million of which 13132, and by the signatures affixed to 13 these final regulations, the Departments with private health insurance. Of would be attributable to the individual certify that the Employee Benefits these, approximately 55.0 percent are market of Wisconsin.18 Security Administration and the Centers assumed to be normal, healthy deliveries, and therefore eligible for 16 The number of women age 10–54 with private for Medicare & Medicaid Services have 14 complied with the requirements of early discharge. Because legislation insurance was estimated using the 2005 MEPS–HC. has been passed in every state but Fertility rates for different age brackets were taken Executive Order 13132 for the attached Wisconsin, the Departments limited from the 2005 CDC National Hospital Discharge Final Regulations for Group Health Survey and were interacted with the number of their analysis to participants in self- Plans and Health Insurance Issuers privately insured women to ascertain the number of insured group health plans throughout births by insured women. This was then interacted Under the Newborns’ and Mothers’ the country and all health plans within with the share of infants that were born healthy, as Health Protection Act (RIN 1210–AA63 Wisconsin. Finally, because Health reported in the 2005 CDC report, to determine the and RIN 0938–AI17), in a meaningful number of healthy births to privately-insured Maintenance Organizations (HMOs) and timely manner. women. have traditionally had more aggressive To restrict the number of privately insured Unified Analysis of Costs and Benefits short-stay policies, the share of workers women having healthy births to those with ESI, the enrolled in HMOs versus commercial share of all privately insured women, age 10–54, 1. Introduction that had ESI was taken from the 2007 March CPS plans was taken into account as were and interacted with the above number. To then The Newborns’ Act’s provisions the share of those plans with short-stay discern the number of births that would be covered generally prohibit group health plans policies.15 by the regulation, the 2006 MEPS–IC was used to and health insurance issuers from: (1) Based on these assumptions, ascertain the share of employees in ESI that were in self-insured plans that had maternal coverage. Limiting hospital lengths of stay in approximately 328,000 births or roughly This number was further interacted by the share of connection with childbirth to less than employees in the share of those employees in HMO 48 hours for vaginal deliveries and 96 13 Departments’ estimate based on the 2005 versus non-HMO health plans as provided by the hours for cesarean sections, and (2) MEPS–HC and the 2005 CDC Survey. 2007 Kaiser Family Foundation’s Employer Health 14 The CDC reported that of the 4.0 million births Benefits Survey. requiring preauthorization for the 48/96 in 2005, 2.2 million, or 55.0 percent of those Interacting all of these numbers results in the hour stays. The primary effect and newborns were categorized as without any illness 328,000 number cited in the text. intent of the provision is to reduce or risk-related diagnosis (e.g. jaundice, respiratory 17 Based on 1995 discharge rates, approximately postpartum complications associated distress, disorders relating to short gestation and 94 percent of the 328,000 births required one with premature discharge. low birth weight). No data are available on whether additional day to meet the maximum period health of newborns varies by mothers’ insurance outlined by the statute; 6 percent required two These regulations draw on the status, although insured mothers are more likely to additional days. Departments’ authority to clarify and receive prenatal care and this would be expected to 18 The Congressional Budget Office (CBO) interpret the Newborns’ Act’s statutory positively affect the share of ‘‘healthy’’ births (see analyzed Senate proposal S. 969, which was an provisions in order to secure the Susan Egerter et al., ‘‘Timing of Insurance Coverage earlier version of the Newborns’ Act. CBO estimated and Use of Prenatal Care Among Low-Income 900,000 insured births had stays shorter than the protections intended by Congress for Women,’’ American Journal of Public Health, v. minimum specified in the bill, which would result newborns and mothers. The 92(3): 423–427). in 400,000 additional inpatient days and an Departments crafted them to satisfy this 15 Julie A. Gazmararian & Jeffrey Koplan found in, additional 200,000 additional out-patient visits at mandate in as economically efficient a ‘‘Length-of-Stay After Delivery: Managed Care an annual cost of $360 million in 2007 dollars (or versus Fee for Service,’’ Health Affairs, v. 15(4): 74– $800 for each additional day of inpatient care; $200 manner as possible, and believe that the 80, that 35.9 percent of enrollees in commercial for outpatient care). The Departments’ estimate is economic benefits of the regulations plans were discharged within one day after delivery significantly less, primarily due to: (1) A large justify their costs. This conclusion takes compared to 57.7 percent from commercial HMOs. number of states either clarifying existing policies into account both the effect of the The shares of individuals enrolled in HMOs at self- for short-stay deliveries or enacting new ones which insured and fully-insured plans were taken from the supersede the federal statute for all but self-insured statute and the impact of the discretion 2007 Kaiser Family Foundation’s Survey of plans; and (2) the CBO estimates included costs for exercised in the regulations. Employer Sponsored Insurance. Continued

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While the Departments estimate that care not covered by their insurance. The provisions of the Newborns’ Act the cost of the NMHPA is as much as Foregoing this care and monitoring and its regulation generally apply to $279 million annually, health plans are increases the risk of adverse health both group health plans and health estimated to have spent more than $775 outcomes, which in turn generates insurance issuers. While the costs of the billion in 2007 to cover approximately higher medical costs. Much of these Newborns’ Act are substantial, 201.7 million privately insured costs may be shifted to public funding economic theory predicts that issuers individuals.19 Therefore, the upper sources (and therefore to taxpayers) or will pass their costs of compliance back estimate of the costs under the to other payers.22 to plans, and that plans may shift some Newborns’ Act’s provisions represent a Foregoing appropriate care can also or all of issuers’ and their own costs of very small fraction of one percent of negatively affect the quality of life. compliance to participants either total health plan expenditures. Improved access to health coverage for through increases in premiums, Moreover, the cost of this provision is mothers and newborns will lead to more increased cost-sharing, or reducing the likely to decline in the future, despite appropriate medical care and richness of non-mandated health increases in overall health care monitoring, better health outcomes, and benefits.25 spending. Since the statute was passed, improved quality of life.23 Denied While 74 million individuals are there has been a significant increase in coverage, individuals must choose enrolled in group or private health the number of cesarean births, whether to pay for the extra day(s) in plans, only 15 million individuals are compared to vaginal births. While the hospital and potentially suffer enrolled in plans that had policies traditionally cesarean births are economic hardship or forego the care affected by the Newborns’ Act. Of these, associated with higher risk, an and monitoring, creating a risk of an only 328,000 individuals are expected increasing number of women are now adverse health outcome. Gaining to be annually directly impacted and electing to have the procedure.20 coverage will sometimes mean receiving receive additional coverage they were Women who elect to have a cesarean high quality care and living healthier previously denied or restricted for 48 or 24 would presumably have a lower risk lives. than those for whom the procedure is Follow-up, Adverse Events, and HMO required and therefore may not require 22 For more information on health choices of Expenditures,’’ New England Journal of Medicine, lower-income individuals, see: Trude, Sally (2003). vol. 347 (25): p. 2031–2038; Madden, Jeanne M. et the prescribed 96-hour recovery period ‘‘Patient Cost Sharing: How Much is Too Much,’’ al. (2004) ‘‘Length-of-Stay Policies and detailed in the statute.21 If this trend Health System Change Issue Brief, no. 72 Ascertainment of Postdischarge Problems in continues, the burden of this statute (December). Newborns,’’ Pediatrics, vol. 113 (1): p. 42–49.) should lessen. 23 For more detailed information, see: O’Brien, The Departments believe, however, that because Ellen (2003). ‘‘Employer Benefits from Workers’ most of the complications of newborns manifest The primary statutory economic Health Insurance,’’ Milbank Quarterly, Vol. 1 No. 1. themselves within the immediate 48 hours benefits associated with the Newborns’ O’Brien provides an extensive analysis of the following birth, special protection much be given to Act’s provisions derive from an increase literature on benefits accruing to employers from that period. Moreover, since the decision to in access to health plan coverage for offering health benefits and the costs to employers discharge the patients will be made by the doctor, of unhealthy employees, as well as information on in consultation with the mother, many of the postpartum care and monitoring of studies demonstrating that poor health may be concerns posed by those who oppose extended mothers and their newborns. related to lower productivity. In particular, she stays will be factored into that decision. As such, Individuals without coverage for this discusses studies that have examined the effects on the Departments believe that the Newborns’ Act care and monitoring are less likely to workplace productivity of specific health will improve the health and welfare of mothers and conditions and shows that poor health reduces newborns. remain in the hospital for fear of workers’ productivity at work, and that effective 25 The voluntary nature of the employment-based incurring expenses that must be paid for health care treatments can reduce productivity health benefit system in conjunction with the open ‘out-of-pocket.’ Lower-income losses and may even pay for themselves in terms and dynamic character of labor markets make individuals are more likely to forego of increased productivity. explicit as well as implicit negotiations on 24 Research on the benefits of longer stays has compensation a key determinant of the prevalence been somewhat mixed. Some studies show short- of employee benefits coverage. It is likely that 80% follow-up visits, a requirement that was dropped stays to be correlated with decreased follow-up care to 100% of the cost of employee benefits is borne from the federal statute. and increased re-hospitalization, particularly for by workers through reduced wages (See for 19 The Departments’ estimate is based on the low-income families, which will ultimately increase example: Jonathan Gruber and Alan B. Krueger, Office of the Actuary at the Centers for Medicare & societal costs (for further discussion, see: Galbraith, ‘‘The Incidence of Mandated Employer-Provided Medicaid Services (CMS) projected measure of total Alison A. et al. (2003) ‘‘Newborn Early Discharge Insurance: Lessons from Workers Compensation personal health expenditures by private health Revisited: Are California Newborns Receiving Insurance,’’ Tax Policy and Economy (1991); insurance in 2007. Recommended Postnatal Services?’’ Pediatrics, vol. Jonathan Gruber, ‘‘The Incidence of Mandated 20 The share of all births that are cesarean rose 111 (2): p. 364–371; Lock, Michael & Joel G. Ray. Maternity Benefits,’’ American Economic Review, from 20.7 percent in 1996 to an estimated 31.3 (1999) ‘‘Higher Neonatal Morbidity after Routine Vol. 84 (June 1994), pp. 622–641; Lawrence H. percent in 2005 (CDC (2005). ‘‘National Hospital Hospital Discharge: Are We Sending Newborns Summers, ‘‘Some Simple Economics of Mandated Discharge Survey’’ Vital and Health Statistics, Home Too Early?’’ Canadian Medical Association Benefits,’’ American Economic Review, Vol. 79, No. Series 13 (162)). A study by Health Grades Inc. Journal, vol. 161 (3): p. 249–253; Malkin, Jesse D. 2 (May 1989); Louise Sheiner, ‘‘Health Care Costs, found a 36.6 percent increase in the number of et al. (2003) ‘‘Postpartum Length of Stay and Wages, and Aging,’’ Federal Reserve Board of ‘‘patient choice’’ cesarean sections between 2001 Newborn Health: A Cost-Effectiveness Analysis,’’ Governors working paper, April 1999; and Edward and 2003. Pediatrics, vol. 111 (4): p. 316–322). Montgomery, Kathryn Shaw, and Mary Ellen 21 Most research comparing complication rates of Since the statutes have been in place, other Benedict, ‘‘Pensions and Wages: An Hedonic Price cesarean to vaginal births focus on those women studies have argued that higher re-hospitalization Theory Approach,’’ International Economic Review, who previously had a cesarean section, as rates found in short-stay newborns are due to more Vol. 33, No. 1, Feb. 1992). The prevalence of insufficient data are available to compare initial frequent post-stay evaluations in the four days benefits is therefore largely dependent on the vaginal versus initial elected cesarean deliveries. As following birth, considered the critical window for efficacy of this exchange. If workers perceive that such, it is difficult to discern how the medically ascertaining newborn health, as mandated in health there is the potential for inappropriate denial of advisable stay of an elected cesarean section plans. Once new regulations were passed extending benefits they will discount their value to adjust for compares to that of an uncomplicated vaginal birth. stays, health plans reduced their follow-up care this risk. This discount drives a wedge in the However, there is much agreement that emergency policies and newborns were less likely to be compensation negotiation, limiting its efficiency. cesarean sections, which typically follow a lengthy examined in the days following discharge. This With workers unwilling to bear the full cost of the labor, are far more dangerous to mother and child could result in an increase in costs. (For further benefit, fewer benefits will be provided. The extent than the elected variety. Given the Newborns’ Act’s discussion, see: Hyman, David A. (2001) ‘‘What to which workers perceive a federal regulation prescribed 96-hour stays for cesarean births when Lessons Should We Learn from Drive-Through supported by enforcement authority to improve the elected cesareans comprised a smaller share of all Deliveries?’’ Pediatrics, vol. 107 (2): 406–408; security and quality of benefits, the differential cesareans, it would be reasonable to expect that the Madden, Jeanne M. et al. (2002) ‘‘Effects of a Law between the employers’ costs and workers’ stays for elected cesareans may fall over time. Against Early Postpartum Discharges on Newborn willingness to accept wage offsets is minimized.

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96-hour hospital stays following health plans by 5 percent (from $265 to The Department of Labor final rule is childbirth. Though these benefits are $279 million for the upper bound for all adopted pursuant to the authority received by a small number of plan plans and from $29 to $31 million for contained in 29 U.S.C. 1027, 1059, 1135, enrollees, the costs are distributed small plans). However, because it can 1161–1168, 1169, 1181–1183, 1181 note, broadly among all plan participants. As take several hours for certain conditions 1185, 1185a, 1185b, 1191, 1191a, 1191b, a result, the cost of the Newborns’ Act to present themselves, such as jaundice and 1191c, sec. 101(g), Public Law 104– per individual enrollee is expected to be and dehydration, the additional hours of 191, 110 Stat. 1936; sec. 401(b), Public minimal—between 9 and 19 dollars per hospital supervision—gained by Law 105–200, 112 Stat. 645 (42 U.S.C. person for those enrolled in affected generally not using an expectant 651 note); Secretary of Labor’s Order 1– plans.26 While it is possible that some mother’s admittance time as the start of 2003, 68 FR 5374 (Feb. 3, 2003). enrollees on the margin will decline a stay—can be critical. Therefore, the The Department of Heath and Human coverage in response to cost increases, benefits of this clarification should Services final rule is adopted pursuant the number of those acting in such a justify this additional cost. to the authority contained in sections manner is expected to be negligible. As The regulation also defines that for 2701 through 2763, 2791, and 2792 of such, the benefits of this statute are births occurring outside of a hospital, the PHS Act (42 U.S.C. 300gg through believed to justify its costs. stays begin once the mother or newborn 300gg–63, 300gg–91, and 300gg–92), as is admitted as a hospital inpatient in amended by Public Law 104–191, 110 3. Costs and Benefits of the Rules connection with childbirth, as defined Stat. 1936, Public Law 104–204, 110 Applicable to the Newborns’ Act by the attending provider. The Stat. 2935 and Public Law 105–277, 112 The interim final rule clarified when Departments lack any firm basis for Stat. 2681–436. a stay begins under the Newborns’ Act. quantifying the number of individuals Accounting Statement Prior to this, private health plans could likely to be affected by this provision, use the expectant mother’s admittance and therefore are unable to quantify the In accordance with OMB Circular time to determine the required stay, an increase in costs and benefits. However, A–4 (available at http:// assumption that consistently reduced given the special and narrow www.whitehouse.gov/omb/circulars/ the number of women experiencing circumstances to which this provision a004/a-4.pdf), in the table below, we stays less than those prescribed by the applies, costs and benefits are expected have prepared an accounting statement statute by 5 percent.27 By clarifying this to be small. showing the classification of the assumption in the interim final rule, the expenditures associated with the number of stays that would have been Statutory Authority provisions of this final rule. This table shorter than 48/96 hours increased by The Department of the Treasury final provides our best estimate for the approximately 16,000 for all plans, and rule is adopted pursuant to the authority annual costs associated with enacting by approximately 2,000 for small plans. contained in sections 7805 and 9833 of the federal minimum stay final This in turn raised the direct costs to the Code (26 U.S.C. 7805, 9833). regulation.

ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES, CY2008 [In millions]

Cost estimates Category Low High

Annualized Monetized Costs ...... $139.30 $278.50

List of Subjects requirements, State regulation of health PART 54—PENSION EXCISE TAXES insurance. 26 CFR Part 54 ■ Paragraph 1. The authority citation Excise taxes, Health care, Health 45 CFR Part 148 for part 54 is amended by adding an insurance, Pensions, Reporting and Administrative practice and entry for § 54.9811–1 in numerical order recordkeeping requirements. procedure, Health care, Health and by removing the entry for § 54.9811–1T to read in part as follows: 29 CFR Part 2590 insurance, Penalties, Reporting and recordkeeping requirements. Authority: 26 U.S.C. 7805 * * * Continuation coverage, Disclosure, Section 54.9811–1 also issued under 26 Employee benefit plans, Group health Adoption of Amendments to the U.S.C. 9833. * * * plans, Health care, Health insurance, Regulations Medical child support, Reporting and Internal Revenue Service § 54.9801–1 [Amended] recordkeeping requirements. 26 CFR Chapter I ■ Par. 2. Section 54.9801–1(a) is 45 CFR Part 146 amended by removing the language Health care, Health insurance, ■ Accordingly, 26 CFR Part 54 is ‘‘54.9811–1T’’ and adding ‘‘54.9811–1’’ Reporting and recordkeeping amended as follows: in its place.

26 The total cost of the regulation was calculated $139 million), these numbers were then divided by at the share of stays that would be labeled ‘‘short’’ by estimating the number of additional days in the the number of participants in affected health plans for both mothers and newborns in 1995 (before any hospital that short-stay deliveries would require (a total of 15 million) to get an upper ($19) and part of the statute was enforced) and found that the under the statute. This number was then multiplied lower bound ($9) of the per-participant cost of the share of newborns with a ‘‘short stay’’ was 5 percent by $800, to reflect the per day hospitalization cost regulation. higher. It was therefore assumed that starting the of a mother (this was a CBO number indexed to 2007 dollars). Having calculated the total cost of the 27 Departments’ estimate based on the CDC’s 2005 clock at the birth of a child would increase the regulation at $279 million (and a lower bound of Survey, Tables 37 and 42. The Departments looked number of ‘‘short stays’’ by 5 percent.

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§ 54.9801–2 [Amended] that the admission is not in connection with (iv) Example. The rules of this childbirth. ■ Par. 3. In § 54.9801–2, the paragraph (a)(5) are illustrated by the (ii) Conclusion. In this Example 3, the following example: introductory paragraph before the hospital length-of-stay requirements of this definitions is amended by removing the section do not apply to the child’s admission Example. (i) Facts. A pregnant woman language ‘‘54.9811–1T’’ and adding to the hospital because the admission is not covered under a group health plan subject to ‘‘54.9811–1’’ in its place. in connection with childbirth. the requirements of this section goes into ■ labor and is admitted to a hospital. She gives Par. 4. Section 54.9811–1 is added to (4) Authorization not required—(i) In birth by cesarean section. On the third day read as follows: general. A plan may not require that a after the delivery, the attending provider for physician or other health care provider § 54.9811–1 Standards relating to benefits the mother consults with the mother, and the attending provider for the newborn consults for mothers and newborns. obtain authorization from the plan, or from a health insurance issuer offering with the mother regarding the newborn. The (a) Hospital length of stay—(1) health insurance coverage under the attending providers authorize the early General rule. Except as provided in plan, for prescribing the hospital length discharge of both the mother and the newborn. Both are discharged approximately paragraph (a)(5) of this section, a group of stay specified in paragraph (a)(1) of health plan that provides benefits for a 72 hours after the delivery. The plan pays for this section. (See also paragraphs (b)(2) the 72-hour hospital stays. hospital length of stay in connection and (c)(3) of this section for rules and with childbirth for a mother or her (ii) Conclusion. In this Example, the examples regarding other authorization requirements of this paragraph (a) have been newborn may not restrict benefits for and certain notice requirements.) satisfied with respect to the mother and the the stay to less than— (ii) Example. The rule of this newborn. If either is readmitted, the hospital (i) 48 hours following a vaginal paragraph (a)(4) is illustrated by the stay for the readmission is not subject to this delivery; or following example: section. (ii) 96 hours following a delivery by Example. (i) Facts. In the case of a delivery (b) Prohibitions—(1) With respect to cesarean section. mothers—(i) In general. A group health (2) When stay begins—(i) Delivery in by cesarean section, a group health plan subject to the requirements of this section plan may not— a hospital. If delivery occurs in a automatically provides benefits for any (A) Deny a mother or her newborn hospital, the hospital length of stay for hospital length of stay of up to 72 hours. For child eligibility or continued eligibility the mother or newborn child begins at any longer stay, the plan requires an to enroll or renew coverage under the the time of delivery (or in the case of attending provider to complete a certificate of terms of the plan solely to avoid the multiple births, at the time of the last medical necessity. The plan then makes a requirements of this section; or delivery). determination, based on the certificate of (B) Provide payments (including (ii) Delivery outside a hospital. If medical necessity, whether a longer stay is medically necessary. payments-in-kind) or rebates to a delivery occurs outside a hospital, the mother to encourage her to accept less hospital length of stay begins at the time (ii) Conclusion. In this Example, the requirement that an attending provider than the minimum protections available the mother or newborn is admitted as a complete a certificate of medical necessity to under this section. hospital inpatient in connection with obtain authorization for the period between (ii) Examples. The rules of this childbirth. The determination of 72 hours and 96 hours following a delivery paragraph (b)(1) are illustrated by the whether an admission is in connection by cesarean section is prohibited by this following examples. In each example, with childbirth is a medical decision to paragraph (a)(4). the group health plan is subject to the be made by the attending provider. (5) Exceptions—(i) Discharge of requirements of this section, as follows: (3) Examples. The rules of paragraphs mother. If a decision to discharge a Example 1. (i) Facts. A group health plan (a)(1) and (2) of this section are mother earlier than the period specified provides benefits for at least a 48-hour illustrated by the following examples. In in paragraph (a)(1) of this section is hospital length of stay following a vaginal each example, the group health plan made by an attending provider, in delivery. If a mother and newborn covered provides benefits for hospital lengths of consultation with the mother, the under the plan are discharged within 24 stay in connection with childbirth and requirements of paragraph (a)(1) of this hours after the delivery, the plan will waive is subject to the requirements of this section do not apply for any period after the copayment and deductible. section, as follows: (ii) Conclusion. In this Example 1, because the discharge. waiver of the copayment and deductible is in Example 1. (i) Facts. A pregnant woman (ii) Discharge of newborn. If a the nature of a rebate that the mother would covered under a group health plan goes into decision to discharge a newborn child not receive if she and her newborn remained labor and is admitted to the hospital at 10 earlier than the period specified in in the hospital, it is prohibited by this p.m. on June 11. She gives birth by vaginal paragraph (a)(1) of this section is made paragraph (b)(1). (In addition, the plan delivery at 6 a.m. on June 12. by an attending provider, in violates paragraph (b)(2) of this section (ii) Conclusion. In this Example 1, the 48- consultation with the mother (or the because, in effect, no copayment or hour period described in paragraph (a)(1)(i) newborn’s authorized representative), deductible is required for the first portion of of this section ends at 6 a.m. on June 14. the stay and a double copayment and a Example 2. (i) Facts. A woman covered the requirements of paragraph (a)(1) of deductible are required for the second under a group health plan gives birth at home this section do not apply for any period portion of the stay.) by vaginal delivery. After the delivery, the after the discharge. Example 2. (i) Facts. A group health plan woman begins bleeding excessively in (iii) Attending provider defined. For provides benefits for at least a 48-hour connection with the childbirth and is purposes of this section, attending hospital length of stay following a vaginal admitted to the hospital for treatment of the provider means an individual who is delivery. In the event that a mother and her excessive bleeding at 7 p.m. on October 1. licensed under applicable state law to newborn are discharged earlier than 48 hours (ii) Conclusion. In this Example 2, the 48- provide maternity or pediatric care and and the discharges occur after consultation hour period described in paragraph (a)(1)(i) who is directly responsible for with the mother in accordance with the of this section ends at 7 p.m. on October 3. requirements of paragraph (a)(5) of this Example 3. (i) Facts. A woman covered providing maternity or pediatric care to section, the plan provides for a follow-up under a group health plan gives birth by a mother or newborn child. Therefore, a visit by a nurse within 48 hours after the vaginal delivery at home. The child later plan, hospital, managed care discharges to provide certain services that the develops pneumonia and is admitted to the organization, or other issuer is not an mother and her newborn would otherwise hospital. The attending provider determines attending provider. receive in the hospital.

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(ii) Conclusion. In this Example 2, because (1) Hospital stays not mandatory. This (d) Notice requirement. See 29 CFR the follow-up visit does not provide any section does not require a mother to— 2520.102–3(u) for rules relating to a services beyond what the mother and her (i) Give birth in a hospital; or disclosure requirement imposed under newborn would receive in the hospital, (ii) Stay in the hospital for a fixed section 711(d) of ERISA (29 U.S.C. 1181) coverage for the follow-up visit is not period of time following the birth of her prohibited by this paragraph (b)(1). on certain group health plans that child. provide benefits for hospital lengths of (2) With respect to benefit (2) Hospital stay benefits not stay in connection with childbirth. restrictions—(i) In general. Subject to mandated. This section does not apply (e) Applicability in certain states—(1) paragraph (c)(3) of this section, a group to any group health plan that does not Health insurance coverage. The health plan may not restrict the benefits provide benefits for hospital lengths of requirements of section 9811 and this for any portion of a hospital length of stay in connection with childbirth for a section do not apply with respect to stay specified in paragraph (a) of this mother or her newborn child. health insurance coverage offered in section in a manner that is less favorable (3) Cost-sharing rules—(i) In general. connection with a group health plan if than the benefits provided for any This section does not prevent a group there is a state law regulating the preceding portion of the stay. health plan from imposing deductibles, coverage that meets any of the following (ii) Example. The rules of this coinsurance, or other cost-sharing in criteria: paragraph (b)(2) are illustrated by the relation to benefits for hospital lengths (i) The state law requires the coverage following example: of stay in connection with childbirth for to provide for at least a 48-hour hospital Example. (i) Facts. A group health plan a mother or a newborn under the plan length of stay following a vaginal subject to the requirements of this section or coverage, except that the coinsurance delivery and at least a 96-hour hospital provides benefits for hospital lengths of stay or other cost-sharing for any portion of length of stay following a delivery by in connection with childbirth. In the case of the hospital length of stay specified in cesarean section. a delivery by cesarean section, the plan paragraph (a) of this section may not be (ii) The state law requires the automatically pays for the first 48 hours. greater than that for any preceding With respect to each succeeding 24-hour coverage to provide for maternity and period, the participant or beneficiary must portion of the stay. pediatric care in accordance with call the plan to obtain precertification from (ii) Examples. The rules of this guidelines that relate to care following a utilization reviewer, who determines if an paragraph (c)(3) are illustrated by the childbirth established by the American additional 24-hour period is medically following examples. In each example, College of Obstetricians and necessary. If this approval is not obtained, the group health plan is subject to the Gynecologists, the American Academy the plan will not provide benefits for any requirements of this section, as follows: of Pediatrics, or any other established succeeding 24-hour period. Example 1. (i) Facts. A group health plan professional medical association. (ii) Conclusion. In this Example, the provides benefits for at least a 48-hour requirement to obtain precertification for the (iii) The state law requires, in hospital length of stay in connection with two 24-hour periods immediately following connection with the coverage for vaginal deliveries. The plan covers 80 the initial 48-hour stay is prohibited by this maternity care, that the hospital length percent of the cost of the stay for the first 24- paragraph (b)(2) because benefits for the of stay for such care is left to the hour period and 50 percent of the cost of the latter part of the stay are restricted in a stay for the second 24-hour period. Thus, the decision of (or is required to be made manner that is less favorable than benefits for coinsurance paid by the patient increases by) the attending provider in a preceding portion of the stay. (However, from 20 percent to 50 percent after 24 hours. consultation with the mother. State laws this section does not prohibit a plan from (ii) Conclusion. In this Example 1, the plan that require the decision to be made by requiring precertification for any period after violates the rules of this paragraph (c)(3) the attending provider with the consent the first 96 hours.) In addition, the because coinsurance for the second 24-hour requirement to obtain precertification from of the mother satisfy the criterion of this period of the 48-hour stay is greater than that the plan based on medical necessity for a paragraph (e)(1)(iii). for the preceding portion of the stay. (In hospital length of stay within the 96-hour (2) Group health plans—(i) Fully- addition, the plan also violates the similar period would also violate paragraph (a) of insured plans. For a group health plan rule in paragraph (b)(2) of this section.) this section. Example 2. (i) Facts. A group health plan that provides benefits solely through (3) With respect to attending generally covers 70 percent of the cost of a health insurance coverage, if the state providers. A group health plan may not hospital length of stay in connection with law regulating the health insurance directly or indirectly— childbirth. However, the plan will cover 80 coverage meets any of the criteria in (i) Penalize (for example, take percent of the cost of the stay if the paragraph (e)(1) of this section, then the disciplinary action against or retaliate participant or beneficiary notifies the plan of requirements of section 9811 and this against), or otherwise reduce or limit the the pregnancy in advance of admission and section do not apply. uses whatever hospital the plan may compensation of, an attending provider (ii) Self-insured plans. For a group designate. health plan that provides all benefits for because the provider furnished care to (ii) Conclusion. In this Example 2, the plan a participant or beneficiary in does not violate the rules of this paragraph hospital lengths of stay in connection accordance with this section; or (c)(3) because the level of benefits provided with childbirth other than through (ii) Provide monetary or other (70 percent or 80 percent) is consistent health insurance coverage, the incentives to an attending provider to throughout the 48-hour (or 96-hour) hospital requirements of section 9811 and this induce the provider to furnish care to a length of stay required under paragraph (a) of section apply. participant or beneficiary in a manner this section. (In addition, the plan does not (iii) Partially-insured plans. For a inconsistent with this section, including violate the rules in paragraph (a)(4) or (b)(2) group health plan that provides some providing any incentive that could of this section.) benefits through health insurance induce an attending provider to (4) Compensation of attending coverage, if the state law regulating the discharge a mother or newborn earlier provider. This section does not prevent health insurance coverage meets any of than 48 hours (or 96 hours) after a group health plan from negotiating the criteria in paragraph (e)(1) of this delivery. with an attending provider the level and section, then the requirements of section (c) Construction. With respect to this type of compensation for care furnished 9811 and this section apply only to the section, the following rules of in accordance with this section extent the plan provides benefits for construction apply: (including paragraph (b) of this section). hospital lengths of stay in connection

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with childbirth other than through Approved: September 23, 2008. is subject to the requirements of this health insurance coverage. Linda E. Stiff, section, as follows: (3) Preemption provisions under Deputy Commissioner for Services and Example 1. (i) Facts. A pregnant woman section 731(a) of ERISA. See 29 CFR Enforcement, Internal Revenue Service. covered under a group health plan goes into 2590.711(e)(3) for a rule providing that Eric Solomon, labor and is admitted to the hospital at 10 p.m. on June 11. She gives birth by vaginal the preemption provisions contained in Assistant Secretary of the Treasury (Tax Policy). delivery at 6 a.m. on June 12. section 731(a)(1) of ERISA and 29 CFR (ii) Conclusion. In this Example 1, the 48- 2590.731(a) do not supersede a state law Employee Benefits Security hour period described in paragraph (a)(1)(i) if the state law is described in paragraph Administration of this section ends at 6 a.m. on June 14. Example 2. (i) Facts. A woman covered (e)(1) of 29 CFR 2590.711 (which is 29 CFR Chapter XXV substantially similar to paragraph (e)(1) under a group health plan gives birth at home of this section). ■ For the reasons set forth above, 29 by vaginal delivery. After the delivery, the CFR Part 2590 is amended as follows: woman begins bleeding excessively in (4) Examples. The rules of this connection with the childbirth and is paragraph (e) are illustrated by the PART 2590—RULES AND admitted to the hospital for treatment of the following examples: REGULATIONS FOR GROUP HEALTH excessive bleeding at 7 p.m. on October 1. (ii) Conclusion. In this Example 2, the 48- Example 1. (i) Facts. A group health plan PLANS hour period described in paragraph (a)(1)(i) buys group health insurance coverage in a ■ 1. The authority citation for Part 2590 of this section ends at 7 p.m. on October 3. state that requires that the coverage provide continues to read as follows: Example 3. (i) Facts. A woman covered for at least a 48-hour hospital length of stay under a group health plan gives birth by following a vaginal delivery and at least a 96- Authority: 29 U.S.C. 1027, 1059, 1135, vaginal delivery at home. The child later hour hospital length of stay following a 1161–1168, 1169, 1181–1183, 1181 note, develops pneumonia and is admitted to the 1185, 1185a, 1185b, 1191, 1191a, 1191b, and delivery by cesarean section. hospital. The attending provider determines 1191c, sec. 101(g), Public Law 104–191, 110 (ii) Conclusion. In this Example 1, the that the admission is not in connection with Stat. 1936; sec. 401(b), Public Law 105–200, childbirth. coverage is subject to state law, and the 112 Stat. 645 (42 U.S.C. 651 note); Secretary (ii) Conclusion. In this Example 3, the requirements of section 9811 and this section of Labor’s Order 1–2003, 68 FR 5374 (Feb. 3, hospital length-of-stay requirements of this do not apply. 2003). section do not apply to the child’s admission Example 2. (i) Facts. A self-insured group ■ 2. Section 2590.711 is revised to read to the hospital because the admission is not health plan covers hospital lengths of stay in in connection with childbirth. connection with childbirth in a state that as follows: requires health insurance coverage to provide (4) Authorization not required—(i) In § 2590.711 Standards relating to benefits general. A plan or issuer is prohibited for maternity and pediatric care in for mothers and newborns. accordance with guidelines that relate to care from requiring that a physician or other (a) Hospital length of stay—(1) health care provider obtain following childbirth established by the General rule. Except as provided in American College of Obstetricians and authorization from the plan or issuer for paragraph (a)(5) of this section, a group prescribing the hospital length of stay Gynecologists and the American Academy of health plan, or a health insurance issuer Pediatrics. specified in paragraph (a)(1) of this offering group health insurance (ii) Conclusion. In this Example 2, even section. (See also paragraphs (b)(2) and coverage, that provides benefits for a though the state law satisfies the criterion of (c)(3) of this section for rules and hospital length of stay in connection paragraph (e)(1)(ii) of this section, because examples regarding other authorization with childbirth for a mother or her the plan provides benefits for hospital and certain notice requirements.) newborn may not restrict benefits for lengths of stay in connection with childbirth (ii) Example. The rule of this other than through health insurance the stay to less than— (i) 48 hours following a vaginal paragraph (a)(4) is illustrated by the coverage, the plan is subject to the delivery; or following example: requirements of section 9811 and this (ii) 96 hours following a delivery by Example. (i) Facts. In the case of a delivery section. cesarean section. by cesarean section, a group health plan (f) Effective/applicability date. This (2) When stay begins—(i) Delivery in subject to the requirements of this section a hospital. If delivery occurs in a automatically provides benefits for any section applies to group health plans for hospital length of stay of up to 72 hours. For plan years beginning on or after January hospital, the hospital length of stay for the mother or newborn child begins at any longer stay, the plan requires an 1, 2009. attending provider to complete a certificate of the time of delivery (or in the case of medical necessity. The plan then makes a § 54.9811–1T [Removed] multiple births, at the time of the last determination, based on the certificate of delivery). medical necessity, whether a longer stay is ■ Par. 5. Section 54.9811–1T is (ii) Delivery outside a hospital. If medically necessary. removed. delivery occurs outside a hospital, the (ii) Conclusion. In this Example, the hospital length of stay begins at the time requirement that an attending provider § 54.9831–1 [Amended] the mother or newborn is admitted as a complete a certificate of medical necessity to obtain authorization for the period between ■ Par. 6. Section 54.9831–1(b) is hospital inpatient in connection with childbirth. The determination of 72 hours and 96 hours following a delivery amended by removing the language by cesarean section is prohibited by this ‘‘54.9811–1T’’ and adding ‘‘54.9811–1’’ whether an admission is in connection paragraph (a)(4). with childbirth is a medical decision to in its place. be made by the attending provider. (5) Exceptions—(i) Discharge of (3) Examples. The rules of paragraphs mother. If a decision to discharge a (a)(1) and (2) of this section are mother earlier than the period specified illustrated by the following examples. In in paragraph (a)(1) of this section is each example, the group health plan made by an attending provider, in provides benefits for hospital lengths of consultation with the mother, the stay in connection with childbirth and requirements of paragraph (a)(1) of this

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section do not apply for any period after under the plan are discharged within 24 the plan based on medical necessity for a the discharge. hours after the delivery, the plan will waive hospital length of stay within the 96-hour (ii) Discharge of newborn. If a the copayment and deductible. period would also violate paragraph (a) of decision to discharge a newborn child (ii) Conclusion. In this Example 1, because this section. earlier than the period specified in waiver of the copayment and deductible is in the nature of a rebate that the mother would (3) With respect to attending paragraph (a)(1) of this section is made not receive if she and her newborn remained providers. A group health plan, and a by an attending provider, in in the hospital, it is prohibited by this health insurance issuer offering group consultation with the mother (or the paragraph (b)(1). (In addition, the plan health insurance coverage, may not newborn’s authorized representative), violates paragraph (b)(2) of this section directly or indirectly— the requirements of paragraph (a)(1) of because, in effect, no copayment or (i) Penalize (for example, take this section do not apply for any period deductible is required for the first portion of disciplinary action against or retaliate after the discharge. the stay and a double copayment and a against), or otherwise reduce or limit the (iii) Attending provider defined. For deductible are required for the second compensation of, an attending provider portion of the stay.) purposes of this section, attending Example 2. (i) Facts. A group health plan because the provider furnished care to provider means an individual who is provides benefits for at least a 48-hour a participant or beneficiary in licensed under applicable state law to hospital length of stay following a vaginal accordance with this section; or provide maternity or pediatric care and delivery. In the event that a mother and her (ii) Provide monetary or other who is directly responsible for newborn are discharged earlier than 48 hours incentives to an attending provider to providing maternity or pediatric care to and the discharges occur after consultation induce the provider to furnish care to a a mother or newborn child. Therefore, a with the mother in accordance with the participant or beneficiary in a manner plan, hospital, managed care requirements of paragraph (a)(5) of this inconsistent with this section, including section, the plan provides for a follow-up organization, or other issuer is not an visit by a nurse within 48 hours after the providing any incentive that could attending provider. discharges to provide certain services that the induce an attending provider to (iv) Example. The rules of this mother and her newborn would otherwise discharge a mother or newborn earlier paragraph (a)(5) are illustrated by the receive in the hospital. than 48 hours (or 96 hours) after following example: (ii) Conclusion. In this Example 2, because delivery. Example. (i) Facts. A pregnant woman the follow-up visit does not provide any (c) Construction. With respect to this covered under a group health plan subject to services beyond what the mother and her section, the following rules of the requirements of this section goes into newborn would receive in the hospital, construction apply: labor and is admitted to a hospital. She gives coverage for the follow-up visit is not (1) Hospital stays not mandatory. This prohibited by this paragraph (b)(1). birth by cesarean section. On the third day section does not require a mother to— after the delivery, the attending provider for (2) With respect to benefit (i) Give birth in a hospital; or the mother consults with the mother, and the restrictions—(i) In general. Subject to (ii) Stay in the hospital for a fixed attending provider for the newborn consults paragraph (c)(3) of this section, a group period of time following the birth of her with the mother regarding the newborn. The health plan, and a health insurance child. attending providers authorize the early issuer offering group health insurance discharge of both the mother and the (2) Hospital stay benefits not newborn. Both are discharged approximately coverage, may not restrict the benefits mandated. This section does not apply 72 hours after the delivery. The plan pays for for any portion of a hospital length of to any group health plan, or any group the 72-hour hospital stays. stay specified in paragraph (a) of this health insurance coverage, that does not (ii) Conclusion. In this Example, the section in a manner that is less favorable provide benefits for hospital lengths of requirements of this paragraph (a) have been than the benefits provided for any stay in connection with childbirth for a satisfied with respect to the mother and the preceding portion of the stay. mother or her newborn child. newborn. If either is readmitted, the hospital (ii) Example. The rules of this (3) Cost-sharing rules—(i) In general. stay for the readmission is not subject to this paragraph (b)(2) are illustrated by the This section does not prevent a group section. following example: health plan or a health insurance issuer (b) Prohibitions—(1) With respect to Example. (i) Facts. A group health plan offering group health insurance mothers—(i) In general. A group health subject to the requirements of this section coverage from imposing deductibles, plan, and a health insurance issuer provides benefits for hospital lengths of stay coinsurance, or other cost-sharing in offering group health insurance in connection with childbirth. In the case of relation to benefits for hospital lengths coverage, may not— a delivery by cesarean section, the plan of stay in connection with childbirth for (A) Deny a mother or her newborn automatically pays for the first 48 hours. a mother or a newborn under the plan child eligibility or continued eligibility With respect to each succeeding 24-hour or coverage, except that the coinsurance period, the participant or beneficiary must to enroll or renew coverage under the or other cost-sharing for any portion of terms of the plan solely to avoid the call the plan to obtain precertification from a utilization reviewer, who determines if an the hospital length of stay specified in requirements of this section; or additional 24-hour period is medically paragraph (a) of this section may not be (B) Provide payments (including necessary. If this approval is not obtained, greater than that for any preceding payments-in-kind) or rebates to a the plan will not provide benefits for any portion of the stay. mother to encourage her to accept less succeeding 24-hour period. (ii) Examples. The rules of this than the minimum protections available (ii) Conclusion. In this Example, the paragraph (c)(3) are illustrated by the under this section. requirement to obtain precertification for the following examples. In each example, (ii) Examples. The rules of this two 24-hour periods immediately following the group health plan is subject to the the initial 48-hour stay is prohibited by this paragraph (b)(1) are illustrated by the requirements of this section, as follows: following examples. In each example, paragraph (b)(2) because benefits for the the group health plan is subject to the latter part of the stay are restricted in a Example 1. (i) Facts. A group health plan manner that is less favorable than benefits for provides benefits for at least a 48-hour requirements of this section, as follows: a preceding portion of the stay. (However, hospital length of stay in connection with Example 1. (i) Facts. A group health plan this section does not prohibit a plan from vaginal deliveries. The plan covers 80 provides benefits for at least a 48-hour requiring precertification for any period after percent of the cost of the stay for the first 24- hospital length of stay following a vaginal the first 96 hours.) In addition, the hour period and 50 percent of the cost of the delivery. If a mother and newborn covered requirement to obtain precertification from stay for the second 24-hour period. Thus, the

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coinsurance paid by the patient increases that require the decision to be made by (f) Applicability date. This section from 20 percent to 50 percent after 24 hours. the attending provider with the consent applies to group health plans, and (ii) Conclusion. In this Example 1, the plan of the mother satisfy the criterion of this health insurance issuers offering group violates the rules of this paragraph (c)(3) paragraph (e)(1)(iii). health insurance coverage, for plan because coinsurance for the second 24-hour period of the 48-hour stay is greater than that (2) Group health plans—(i) Fully- years beginning on or after January 1, for the preceding portion of the stay. (In insured plans. For a group health plan 2009. addition, the plan also violates the similar that provides benefits solely through Signed at Washington, DC this 2nd day of rule in paragraph (b)(2) of this section.) health insurance coverage, if the state October, 2008. Example 2. (i) Facts. A group health plan law regulating the health insurance Bradford P. Campbell, generally covers 70 percent of the cost of a coverage meets any of the criteria in Assistant Secretary, Employee Benefits hospital length of stay in connection with paragraph (e)(1) of this section, then the childbirth. However, the plan will cover 80 Security Administration, U.S. Department of requirements of section 711 of the Act Labor. percent of the cost of the stay if the and this section do not apply. participant or beneficiary notifies the plan of (ii) Self-insured plans. For a group Adoption of Amendments to the the pregnancy in advance of admission and Regulations uses whatever hospital the plan may health plan that provides all benefits for designate. hospital lengths of stay in connection DEPARTMENT OF HEALTH AND (ii) Conclusion. In this Example 2, the plan with childbirth other than through HUMAN SERVICES does not violate the rules of this paragraph health insurance coverage, the (c)(3) because the level of benefits provided requirements of section 711 of the Act 45 CFR SUBTITLE A, SUBCHAPTER B (70 percent or 80 percent) is consistent and this section apply. ■ 45 CFR subtitle A, subchapter B, is throughout the 48-hour (or 96-hour) hospital (iii) Partially-insured plans. For a amended as set forth below: length of stay required under paragraph (a) of group health plan that provides some this section. (In addition, the plan does not benefits through health insurance PART 146—REQUIREMENTS FOR THE violate the rules in paragraph (a)(4) or (b)(2) GROUP HEALTH INSURANCE of this section.) coverage, if the state law regulating the health insurance coverage meets any of MARKET (4) Compensation of attending the criteria in paragraph (e)(1) of this ■ 1. The authority citation for part 146 provider. This section does not prevent section, then the requirements of section continues to read as follows: a group health plan or a health 711 of the Act and this section apply insurance issuer offering group health only to the extent the plan provides Authority: Secs. 2701 through 2763, 2791, insurance coverage from negotiating benefits for hospital lengths of stay in and 2792 of the PHS Act (42 U.S.C. 300gg with an attending provider the level and connection with childbirth other than through 300gg–63, 300gg–91, and 300gg–92). type of compensation for care furnished through health insurance coverage. ■ 2. Section 146.130 is revised to read in accordance with this section (3) Relation to section 731(a) of the as follows: (including paragraph (b) of this section). Act. The preemption provisions (d) Notice requirement. See 29 CFR contained in section 731(a)(1) of the Act § 146.130 Standards relating to benefits 2520.102–3(u) (relating to the disclosure and Sec. 2590.731(a) do not supersede for mothers and newborns. requirement under section 711(d) of the a state law described in paragraph (e)(1) (a) Hospital length of stay—(1) Act). of this section. General rule. Except as provided in (e) Applicability in certain states—(1) (4) Examples. The rules of this paragraph (a)(5) of this section, a group Health insurance coverage. The paragraph (e) are illustrated by the health plan, or a health insurance issuer requirements of section 711 of the Act following examples: offering group health insurance and this section do not apply with coverage, that provides benefits for a Example 1. (i) Facts. A group health plan respect to health insurance coverage hospital length of stay in connection offered in connection with a group buys group health insurance coverage in a state that requires that the coverage provide with childbirth for a mother or her health plan if there is a state law for at least a 48-hour hospital length of stay newborn may not restrict benefits for regulating the coverage that meets any following a vaginal delivery and at least a 96- the stay to less than— of the following criteria: hour hospital length of stay following a (i) 48 hours following a vaginal (i) The state law requires the coverage delivery by cesarean section. delivery; or to provide for at least a 48-hour hospital (ii) Conclusion. In this Example 1, the (ii) 96 hours following a delivery by length of stay following a vaginal coverage is subject to state law, and the cesarean section. delivery and at least a 96-hour hospital requirements of section 711 of the Act and (2) When stay begins—(i) Delivery in length of stay following a delivery by this section do not apply. a hospital. If delivery occurs in a cesarean section. Example 2. (i) Facts. A self-insured group hospital, the hospital length of stay for (ii) The state law requires the health plan covers hospital lengths of stay in the mother or newborn child begins at connection with childbirth in a state that coverage to provide for maternity and requires health insurance coverage to provide the time of delivery (or in the case of pediatric care in accordance with for maternity and pediatric care in multiple births, at the time of the last guidelines that relate to care following accordance with guidelines that relate to care delivery). childbirth established by the American following childbirth established by the (ii) Delivery outside a hospital. If College of Obstetricians and American College of Obstetricians and delivery occurs outside a hospital, the Gynecologists, the American Academy Gynecologists and the American Academy of hospital length of stay begins at the time of Pediatrics, or any other established Pediatrics. the mother or newborn is admitted as a professional medical association. (ii) Conclusion. In this Example 2, even hospital inpatient in connection with (iii) The state law requires, in though the state law satisfies the criterion of childbirth. The determination of connection with the coverage for paragraph (e)(1)(ii) of this section, because whether an admission is in connection the plan provides benefits for hospital maternity care, that the hospital length lengths of stay in connection with childbirth with childbirth is a medical decision to of stay for such care is left to the other than through health insurance be made by the attending provider. decision of (or is required to be made coverage, the plan is subject to the (3) Examples. The rules of paragraphs by) the attending provider in requirements of section 711 of the Act and (a)(1) and (2) of this section are consultation with the mother. State laws this section. illustrated by the following examples. In

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each example, the group health plan consultation with the mother, the hospital length of stay following a vaginal provides benefits for hospital lengths of requirements of paragraph (a)(1) of this delivery. If a mother and newborn covered stay in connection with childbirth and section do not apply for any period after under the plan are discharged within 24 is subject to the requirements of this the discharge. hours after the delivery, the plan will waive (ii) Discharge of newborn. If a the copayment and deductible. section, as follows: (ii) Conclusion. In this Example 1, because Example 1. (i) Facts. A pregnant woman decision to discharge a newborn child waiver of the copayment and deductible is in covered under a group health plan goes into earlier than the period specified in the nature of a rebate that the mother would labor and is admitted to the hospital at 10 paragraph (a)(1) of this section is made not receive if she and her newborn remained p.m. on June 11. She gives birth by vaginal by an attending provider, in in the hospital, it is prohibited by this delivery at 6 a.m. on June 12. consultation with the mother (or the paragraph (b)(1). (In addition, the plan (ii) Conclusion. In this Example 1, the 48- newborn’s authorized representative), violates paragraph (b)(2) of this section hour period described in paragraph (a)(1)(i) the requirements of paragraph (a)(1) of because, in effect, no copayment or of this section ends at 6 a.m. on June 14. this section do not apply for any period deductible is required for the first portion of Example 2. (i) Facts. A woman covered the stay and a double copayment and a under a group health plan gives birth at home after the discharge. deductible are required for the second by vaginal delivery. After the delivery, the (iii) Attending provider defined. For portion of the stay.) woman begins bleeding excessively in purposes of this section, attending Example 2. (i) Facts. A group health plan connection with the childbirth and is provider means an individual who is provides benefits for at least a 48-hour admitted to the hospital for treatment of the licensed under applicable state law to hospital length of stay following a vaginal excessive bleeding at 7 p.m. on October 1. provide maternity or pediatric care and delivery. In the event that a mother and her (ii) Conclusion. In this Example 2, the 48- who is directly responsible for newborn are discharged earlier than 48 hours hour period described in paragraph (a)(1)(i) providing maternity or pediatric care to and the discharges occur after consultation of this section ends at 7 p.m. on October 3. a mother or newborn child. Therefore, a with the mother in accordance with the Example 3. (i) Facts. A woman covered requirements of paragraph (a)(5) of this under a group health plan gives birth by plan, hospital, managed care section, the plan provides for a follow-up vaginal delivery at home. The child later organization, or other issuer is not an visit by a nurse within 48 hours after the develops pneumonia and is admitted to the attending provider. discharges to provide certain services that the hospital. The attending provider determines (iv) Example. The rules of this mother and her newborn would otherwise that the admission is not in connection with paragraph (a)(5) are illustrated by the receive in the hospital. childbirth. following example: (ii) Conclusion. In this Example 2, because (ii) Conclusion. In this Example 3, the the follow-up visit does not provide any hospital length-of-stay requirements of this Example. (i) Facts. A pregnant woman services beyond what the mother and her covered under a group health plan subject to section do not apply to the child’s admission newborn would receive in the hospital, the requirements of this section goes into to the hospital because the admission is not coverage for the follow-up visit is not labor and is admitted to a hospital. She gives in connection with childbirth. prohibited by this paragraph (b)(1). birth by cesarean section. On the third day (4) Authorization not required—(i) In after the delivery, the attending provider for (2) With respect to benefit general. A plan or issuer is prohibited the mother consults with the mother, and the restrictions—(i) In general. Subject to from requiring that a physician or other attending provider for the newborn consults paragraph (c)(3) of this section, a group health care provider obtain with the mother regarding the newborn. The health plan, and a health insurance authorization from the plan or issuer for attending providers authorize the early issuer offering group health insurance discharge of both the mother and the coverage, may not restrict the benefits prescribing the hospital length of stay newborn. Both are discharged approximately specified in paragraph (a)(1) of this 72 hours after the delivery. The plan pays for for any portion of a hospital length of section. (See also paragraphs (b)(2) and the 72-hour hospital stays. stay specified in paragraph (a) of this (c)(3) of this section for rules and (ii) Conclusion. In this Example, the section in a manner that is less favorable examples regarding other authorization requirements of this paragraph (a) have been than the benefits provided for any and certain notice requirements.) satisfied with respect to the mother and the preceding portion of the stay. (ii) Example. The rule of this newborn. If either is readmitted, the hospital (ii) Example. The rules of this paragraph (a)(4) is illustrated by the stay for the readmission is not subject to this paragraph (b)(2) are illustrated by the following example: section. following example: Example. (i) Facts. In the case of a delivery (b) Prohibitions—(1) With respect to Example. (i) Facts. A group health plan by cesarean section, a group health plan mothers—(i) In general. A group health subject to the requirements of this section subject to the requirements of this section plan, and a health insurance issuer provides benefits for hospital lengths of stay automatically provides benefits for any offering group health insurance in connection with childbirth. In the case of hospital length of stay of up to 72 hours. For coverage, may not— a delivery by cesarean section, the plan any longer stay, the plan requires an (A) Deny a mother or her newborn automatically pays for the first 48 hours. attending provider to complete a certificate of child eligibility or continued eligibility With respect to each succeeding 24-hour medical necessity. The plan then makes a to enroll or renew coverage under the period, the participant or beneficiary must call the plan to obtain precertification from determination, based on the certificate of terms of the plan solely to avoid the medical necessity, whether a longer stay is a utilization reviewer, who determines if an medically necessary. requirements of this section; or additional 24-hour period is medically (ii) Conclusion. In this Example, the (B) Provide payments (including necessary. If this approval is not obtained, requirement that an attending provider payments-in-kind) or rebates to a the plan will not provide benefits for any complete a certificate of medical necessity to mother to encourage her to accept less succeeding 24-hour period. obtain authorization for the period between than the minimum protections available (ii) Conclusion. In this Example, the 72 hours and 96 hours following a delivery under this section. requirement to obtain precertification for the by cesarean section is prohibited by this (ii) Examples. The rules of this two 24-hour periods immediately following paragraph (a)(4). paragraph (b)(1) are illustrated by the the initial 48-hour stay is prohibited by this paragraph (b)(2) because benefits for the (5) Exceptions—(i) Discharge of following examples. In each example, the group health plan is subject to the latter part of the stay are restricted in a mother. If a decision to discharge a manner that is less favorable than benefits for mother earlier than the period specified requirements of this section, as follows: a preceding portion of the stay. (However, in paragraph (a)(1) of this section is Example 1. (i) Facts. A group health plan this section does not prohibit a plan from made by an attending provider, in provides benefits for at least a 48-hour requiring precertification for any period after

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the first 96 hours.) In addition, the hour period and 50 percent of the cost of the consultation with the mother, discharges the requirement to obtain precertification from stay for the second 24-hour period. Thus, the mother or newborn earlier. the plan based on medical necessity for a coinsurance paid by the patient increases Also, under federal law, plans and issuers hospital length of stay within the 96-hour from 20 percent to 50 percent after 24 hours. may not set the level of benefits or out-of- period would also violate paragraph (a) of (ii) Conclusion. In this Example 1, the plan pocket costs so that any later portion of the this section. violates the rules of this paragraph (c)(3) 48-hour (or 96-hour) stay is treated in a because coinsurance for the second 24-hour (3) With respect to attending manner less favorable to the mother or period of the 48-hour stay is greater than that newborn than any earlier portion of the stay. providers. A group health plan, and a for the preceding portion of the stay. (In In addition, a plan or issuer may not, under health insurance issuer offering group addition, the plan also violates the similar federal law, require that a physician or other health insurance coverage, may not rule in paragraph (b)(2) of this section.) health care provider obtain authorization for directly or indirectly— Example 2. (i) Facts. A group health plan prescribing a length of stay of up to 48 hours (i) Penalize (for example, take generally covers 70 percent of the cost of a (or 96 hours). However, to use certain disciplinary action against or retaliate hospital length of stay in connection with providers or facilities, or to reduce your out- against), or otherwise reduce or limit the childbirth. However, the plan will cover of-pocket costs, you may be required to compensation of, an attending provider 80 percent of the cost of the stay if the obtain precertification. For information on participant or beneficiary notifies the plan of because the provider furnished care to precertification, contact your plan the pregnancy in advance of admission and administrator. a participant or beneficiary in uses whatever hospital the plan may accordance with this section; or designate. (3) Timing of disclosure. The (ii) Provide monetary or other (ii) Conclusion. In this Example 2, the plan disclosure notice in paragraph (d)(2) of incentives to an attending provider to does not violate the rules of this paragraph this section shall be furnished to each induce the provider to furnish care to a (c)(3) because the level of benefits provided participant covered under a group participant or beneficiary in a manner (70 percent or 80 percent) is consistent health plan, and each beneficiary inconsistent with this section, including throughout the 48-hour (or 96-hour) hospital length of stay required under paragraph (a) of receiving benefits under a group health providing any incentive that could this section. (In addition, the plan does not plan, not later than 60 days after the induce an attending provider to violate the rules in paragraph (a)(4) or (b)(2) first day of the first plan year beginning discharge a mother or newborn earlier of this section.) on or after January 1, 2009. Each time than 48 hours (or 96 hours) after (4) Compensation of attending a plan distributes one or both of the delivery. provider. This section does not prevent documents described in paragraph (d)(1) (c) Construction. With respect to this a group health plan or a health to participants and beneficiaries after section, the following rules of insurance issuer offering group health providing this initial notice, the construction apply: insurance coverage from negotiating disclosure notice in paragraph (d)(2) (1) Hospital stays not mandatory. This must appear in at least one of those section does not require a mother to— with an attending provider the level and type of compensation for care furnished documents. (i) Give birth in a hospital; or (4) Exceptions. The requirements of (ii) Stay in the hospital for a fixed in accordance with this section (including paragraph (b) of this section). this paragraph (d) do not apply in the period of time following the birth of her following situations. child. (d) Notice requirement. Except as (2) Hospital stay benefits not provided in paragraph (d)(4) of this (i) Self-insured plans that have mandated. This section does not apply section, a group health plan that already provided notice. If benefits for to any group health plan, or any group provides benefits for hospital lengths of hospital lengths of stay in connection health insurance coverage, that does not stay in connection with childbirth must with childbirth are not provided provide benefits for hospital lengths of meet the following requirements: through health insurance coverage, and stay in connection with childbirth for a (1) Required statement. The plan the group health plan has already mother or her newborn child. document that provides a description of provided an initial notice that complies (3) Cost-sharing rules—(i) In general. plan benefits to participants and with paragraphs (d)(1) and (d)(2) of this This section does not prevent a group beneficiaries, or that notifies section, the group health plan is not health plan or a health insurance issuer participants and beneficiaries of plan automatically required to provide offering group health insurance benefit changes, must disclose another such notice to participants and coverage from imposing deductibles, information that notifies participants beneficiaries who have been provided coinsurance, or other cost-sharing in and beneficiaries of their rights under with the initial notice. However, relation to benefits for hospital lengths this section. following the effective date of these (2) Disclosure notice. To meet the of stay in connection with childbirth for regulations, whenever such a plan disclosure requirement set forth in a mother or a newborn under the plan provides one or both of the documents paragraph (d)(1) of this section, the or coverage, except that the coinsurance described in paragraph (d)(1) of this following disclosure notice must be or other cost-sharing for any portion of section to participants and beneficiaries, used: the hospital length of stay specified in the disclosure notice in paragraph (d)(2) paragraph (a) of this section may not be Statement of Rights Under the Newborns’ of this section must appear in at least greater than that for any preceding and Mothers’ Health Protection Act one of those documents. portion of the stay. Under federal law, group health plans and (ii) Self-insured plans that have (ii) Examples. The rules of this health insurance issuers offering group elected exemption from this section. If paragraph (c)(3) are illustrated by the health insurance coverage generally may not benefits for hospital lengths of stay in following examples. In each example, restrict benefits for any hospital length of connection with childbirth are not the group health plan is subject to the stay in connection with childbirth for the provided through health insurance mother or newborn child to less than 48 coverage, and the group health plan has requirements of this section, as follows: hours following a vaginal delivery, or less Example 1. (i) Facts. A group health plan than 96 hours following a delivery by made the election described in provides benefits for at least a 48-hour cesarean section. However, the plan or issuer § 146.180 to be exempted from the hospital length of stay in connection with may pay for a shorter stay if the attending requirements of this section, the group vaginal deliveries. The plan covers 80 provider (e.g., your physician, nurse health plan is not subject to this percent of the cost of the stay for the first 24- midwife, or physician assistant), after paragraph (d).

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(iii) Insured plans. If benefits for stay in connection with childbirth other offering health insurance coverage in hospital lengths of stay in connection than through health insurance coverage. the individual market that provides with childbirth are provided through (3) Relation to section 2723(a) of the benefits for a hospital length of stay in health insurance coverage, and the PHS Act. The preemption provisions connection with childbirth for a mother coverage is regulated under a State law contained in section 2723(a)(1) of the or her newborn may not restrict benefits described in paragraph (e) of this PHS Act and § 146.143(a) do not for the stay to less than— section, the group health plan is not supersede a state law described in (i) 48 hours following a vaginal subject to this paragraph (d). paragraph (e)(1) of this section. delivery; or (e) Applicability in certain states—(1) (4) Examples. The rules of this (ii) 96 hours following a delivery by Health insurance coverage. The paragraph (e) are illustrated by the cesarean section. requirements of section 2704 of the PHS following examples: (2) When stay begins—(i) Delivery in Act and this section do not apply with Example 1. (i) Facts. A group health plan a hospital. If delivery occurs in a respect to health insurance coverage buys group health insurance coverage in a hospital, the hospital length of stay for offered in connection with a group state that requires that the coverage provide the mother or newborn child begins at health plan if there is a state law for at least a 48-hour hospital length of stay the time of delivery (or in the case of regulating the coverage that meets any following a vaginal delivery and at least a 96- multiple births, at the time of the last of the following criteria: hour hospital length of stay following a delivery). (i) The state law requires the coverage delivery by cesarean section. (ii) Delivery outside a hospital. If to provide for at least a 48-hour hospital (ii) Conclusion. In this Example 1, the delivery occurs outside a hospital, the length of stay following a vaginal coverage is subject to state law, and the hospital length of stay begins at the time delivery and at least a 96-hour hospital requirements of section 2704 of the PHS Act and this section do not apply. the mother or newborn is admitted as a length of stay following a delivery by Example 2. (i) Facts. A self-insured group hospital inpatient in connection with cesarean section. health plan covers hospital lengths of stay in childbirth. The determination of (ii) The state law requires the connection with childbirth in a state that whether an admission is in connection coverage to provide for maternity and requires health insurance coverage to provide with childbirth is a medical decision to pediatric care in accordance with for maternity and pediatric care in be made by the attending provider. guidelines that relate to care following accordance with guidelines that relate to care (3) Examples. The rules of paragraphs childbirth established by the American following childbirth established by the (a)(1) and (2) of this section are College of Obstetricians and American College of Obstetricians and illustrated by the following examples. In Gynecologists, the American Academy Gynecologists and the American Academy of each example, the issuer provides of Pediatrics, or any other established Pediatrics. (ii) Conclusion. In this Example 2, even benefits for hospital lengths of stay in professional medical association. though the state law satisfies the criterion of connection with childbirth and is (iii) The state law requires, in paragraph (e)(1)(ii) of this section, because subject to the requirements of this connection with the coverage for the plan provides benefits for hospital section, as follows: maternity care, that the hospital length lengths of stay in connection with childbirth Example 1. (i) Facts. A pregnant woman of stay for such care is left to the other than through health insurance covered under a policy issued in the decision of (or is required to be made coverage, the plan is subject to the individual market goes into labor and is by) the attending provider in requirements of section 2704 of the PHS Act admitted to the hospital at 10 p.m. on June consultation with the mother. State laws and this section. 11. She gives birth by vaginal delivery at 6 that require the decision to be made by (f) Applicability date. Section 2704 of a.m. on June 12. the attending provider with the consent the PHS Act applies to group health (ii) Conclusion. In this Example 1, the 48- of the mother satisfy the criterion of this plans, and health insurance issuers hour period described in paragraph (a)(1)(i) paragraph (e)(1)(iii). offering group health insurance of this section ends at 6 a.m. on June 14. Example 2. (i) Facts. A woman covered (2) Group health plans—(i) Fully- coverage, for plan years beginning on or insured plans. For a group health plan under a policy issued in the individual after January 1, 1998. This section market gives birth at home by vaginal that provides benefits solely through applies to group health plans, and delivery. After the delivery, the woman health insurance coverage, if the state health insurance issuers offering group begins bleeding excessively in connection law regulating the health insurance health insurance coverage, for plan with the childbirth and is admitted to the coverage meets any of the criteria in years beginning on or after January 1, hospital for treatment of the excessive paragraph (e)(1) of this section, then the 2009. bleeding at 7 p.m. on October 1. requirements of section 2704 of the PHS (ii) Conclusion. In this Example 2, the 48- Act and this section do not apply. PART 148—REQUIREMENTS FOR THE hour period described in paragraph (a)(1)(i) (ii) Self-insured plans. For a group INDIVIDUAL HEALTH INSURANCE of this section ends at 7 p.m. on October 3. health plan that provides all benefits for MARKET Example 3. (i) Facts. A woman covered hospital lengths of stay in connection under a policy issued in the individual market gives birth by vaginal delivery at with childbirth other than through ■ 3. The authority citation for part 148 continues to read as follows: home. The child later develops pneumonia health insurance coverage, the and is admitted to the hospital. The attending requirements of section 2704 of the PHS Authority: Secs. 2741 through 2763, 2791, provider determines that the admission is not Act and this section apply. and 2792 of the Public Health Service Act (42 in connection with childbirth. (iii) Partially-insured plans. For a U.S.C. 300gg–41 through 300gg–63, 300gg– (ii) Conclusion. In this Example 3, the group health plan that provides some 91, and 300gg–92). hospital length-of-stay requirements of this benefits through health insurance ■ section do not apply to the child’s admission 4. Section 148.170 is revised to read to the hospital because the admission is not coverage, if the state law regulating the as follows: health insurance coverage meets any of in connection with childbirth. the criteria in paragraph (e)(1) of this § 148.170 Standards relating to benefits (4) Authorization not required—(i) In section, then the requirements of section for mothers and newborns. general. An issuer is prohibited from 2704 of the PHS Act and this section (a) Hospital length of stay—(1) requiring that a physician or other apply only to the extent the plan General rule. Except as provided in health care provider obtain provides benefits for hospital lengths of paragraph (a)(5) of this section, an issuer authorization from the issuer for

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prescribing the hospital length of stay mother and the newborn. Both are discharged portion of a hospital length of stay specified in paragraph (a)(1) of this approximately 72 hours after the delivery. specified in paragraph (a) of this section section. (See also paragraphs (b)(2) and The issuer pays for the 72-hour hospital in a manner that is less favorable than (c)(3) of this section for rules and stays. the benefits provided for any preceding (ii) Conclusion. In this Example, the examples regarding other authorization requirements of this paragraph (a) have been portion of the stay. and certain notice requirements.) satisfied with respect to the mother and the (ii) Example. The rules of this (ii) Example. The rule of this newborn. If either is readmitted, the hospital paragraph (b)(2) are illustrated by the paragraph (a)(4) is illustrated by the stay for the readmission is not subject to this following example: following example: section. Example. (i) Facts. An issuer subject to the Example. (i) Facts. In the case of a delivery (b) Prohibitions—(1) With respect to requirements of this section provides benefits by cesarean section, an issuer subject to the mothers—(i) In general. An issuer for hospital lengths of stay in connection requirements of this section automatically subject to the requirements of this with childbirth. In the case of a delivery by cesarean section, the issuer automatically provides benefits for any hospital length of section may not— stay of up to 72 hours. For any longer stay, pays for the first 48 hours. With respect to the issuer requires an attending provider to (A) Deny a mother or her newborn each succeeding 24-hour period, the covered complete a certificate of medical necessity. child eligibility or continued eligibility individual must call the issuer to obtain The issuer then makes a determination, based to enroll in or renew coverage solely to precertification from a utilization reviewer, on the certificate of medical necessity, avoid the requirements of this section; who determines if an additional 24-hour whether a longer stay is medically necessary. or period is medically necessary. If this (ii) Conclusion. In this Example, the (B) Provide payments (including approval is not obtained, the issuer will not requirement that an attending provider payments-in-kind) or rebates to a provide benefits for any succeeding 24-hour complete a certificate of medical necessity to mother to encourage her to accept less period. (ii) Conclusion. In this Example, the obtain authorization for the period between than the minimum protections available 72 hours and 96 hours following a delivery requirement to obtain precertification for the by cesarean section is prohibited by this under this section. two 24-hour periods immediately following paragraph (a)(4). (ii) Examples. The rules of this the initial 48-hour stay is prohibited by this paragraph (b)(1) are illustrated by the paragraph (b)(2) because benefits for the (5) Exceptions—(i) Discharge of following examples. In each example, latter part of the stay are restricted in a mother. If a decision to discharge a the issuer is subject to the requirements manner that is less favorable than benefits for mother earlier than the period specified of this section, as follows: a preceding portion of the stay. (However, in paragraph (a)(1) of this section is this section does not prohibit an issuer from made by an attending provider, in Example 1. (i) Facts. An issuer provides requiring precertification for any period after benefits for at least a 48-hour hospital length consultation with the mother, the the first 96 hours.) In addition, the of stay following a vaginal delivery. If a requirement to obtain precertification from requirements of paragraph (a)(1) of this mother and newborn covered under a policy section do not apply for any period after the issuer based on medical necessity for a issued in the individual market are hospital length of stay within the 96-hour the discharge. discharged within 24 hours after the delivery, period would also violate paragraph (a) of (ii) Discharge of newborn. If a the issuer will waive the copayment and this section. decision to discharge a newborn child deductible. earlier than the period specified in (ii) Conclusion. In this Example 1, because (3) With respect to attending paragraph (a)(1) of this section is made waiver of the copayment and deductible is in providers. An issuer may not directly or by an attending provider, in the nature of a rebate that the mother would indirectly— consultation with the mother (or the not receive if she and her newborn remained (i) Penalize (for example, take in the hospital, it is prohibited by this newborn’s authorized representative), disciplinary action against or retaliate paragraph (b)(1). (In addition, the issuer against), or otherwise reduce or limit the the requirements of paragraph (a)(1) of violates paragraph (b)(2) of this section this section do not apply for any period compensation of, an attending provider because, in effect, no copayment or because the provider furnished care to after the discharge. deductible is required for the first portion of (iii) Attending provider defined. For the stay and a double copayment and a a covered individual in accordance with purposes of this section, attending deductible are required for the second this section; or provider means an individual who is portion of the stay.) (ii) Provide monetary or other licensed under applicable state law to Example 2. (i) Facts. An issuer provides incentives to an attending provider to provide maternity or pediatric care and benefits for at least a 48-hour hospital length induce the provider to furnish care to a of stay following a vaginal delivery. In the who is directly responsible for covered individual in a manner event that a mother and her newborn are inconsistent with this section, including providing maternity or pediatric care to discharged earlier than 48 hours and the a mother or newborn child. Therefore, providing any incentive that could discharges occur after consultation with the induce an attending provider to an issuer, plan, hospital, or managed mother in accordance with the requirements care organization is not an attending of paragraph (a)(5) of this section, the issuer discharge a mother or newborn earlier provider. provides for a follow-up visit by a nurse than 48 hours (or 96 hours) after (iv) Example. The rules of this within 48 hours after the discharges to delivery. (c) Construction. With respect to this paragraph (a)(5) are illustrated by the provide certain services that the mother and section, the following rules of following example: her newborn would otherwise receive in the hospital. construction apply: Example. (i) Facts. A pregnant woman (ii) Conclusion. In this Example 2, because (1) Hospital stays not mandatory. This covered under a policy offered by an issuer the follow-up visit does not provide any section does not require a mother to— subject to the requirements of this section services beyond what the mother and her (i) Give birth in a hospital; or goes into labor and is admitted to a hospital. newborn would receive in the hospital, (ii) Stay in the hospital for a fixed She gives birth by cesarean section. On the coverage for the follow-up visit is not period of time following the birth of her third day after the delivery, the attending prohibited by this paragraph (b)(1). provider for the mother consults with the child. mother, and the attending provider for the (2) With respect to benefit (2) Hospital stay benefits not newborn consults with the mother regarding restrictions—(i) In general. Subject to mandated. This section does not apply the newborn. The attending providers paragraph (c)(3) of this section, an issuer to any issuer that does not provide authorize the early discharge of both the may not restrict the benefits for any benefits for hospital lengths of stay in

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connection with childbirth for a mother as defined in section 2741(b) of the PHS (e) Applicability in certain states—(1) or her newborn child. Act. Health insurance coverage. The (3) Cost-sharing rules—(i) In general. (d) Notice requirement. Except as requirements of section 2751 of the PHS This section does not prevent an issuer provided in paragraph (d)(4) of this Act and this section do not apply with from imposing deductibles, section, an issuer offering health respect to health insurance coverage in coinsurance, or other cost-sharing in insurance in the individual market must the individual market if there is a state relation to benefits for hospital lengths meet the following requirements with law regulating the coverage that meets of stay in connection with childbirth for respect to benefits for hospital lengths of any of the following criteria: a mother or a newborn under the stay in connection with childbirth: (i) The state law requires the coverage coverage, except that the coinsurance or (1) Required statement. The insurance to provide for at least a 48-hour hospital other cost-sharing for any portion of the contract must disclose information that length of stay following a vaginal hospital length of stay specified in notifies covered individuals of their delivery and at least a 96-hour hospital paragraph (a) of this section may not be rights under this section. length of stay following a delivery by greater than that for any preceding (2) Disclosure notice. To meet the cesarean section. portion of the stay. disclosure requirements set forth in (ii) The state law requires the (ii) Examples. The rules of this paragraph (d)(1) of this section, the coverage to provide for maternity and paragraph (c)(3) are illustrated by the following disclosure notice must be pediatric care in accordance with following examples. In each example, used: guidelines that relate to care following the issuer is subject to the requirements Statement of Rights Under the Newborns’ childbirth established by the American of this section, as follows: and Mothers’ Health Protection Act College of Obstetricians and Example 1. (i) Facts. An issuer provides Under federal law, health insurance issuers Gynecologists, the American Academy benefits for at least a 48-hour hospital length generally may not restrict benefits for any of Pediatrics, or any other established of stay in connection with vaginal deliveries. hospital length of stay in connection with professional medical association. The issuer covers 80 percent of the cost of childbirth for the mother or newborn child to (iii) The state law requires, in the stay for the first 24-hour period and 50 less than 48 hours following a vaginal connection with the coverage for percent of the cost of the stay for the second delivery, or less than 96 hours following a maternity care, that the hospital length 24-hour period. Thus, the coinsurance paid delivery by cesarean section. However, the of stay for such care is left to the by the patient increases from 20 percent to issuer may pay for a shorter stay if the 50 percent after 24 hours. decision of (or is required to be made attending provider (e.g. , your physician, by) the attending provider in (ii) Conclusion. In this Example 1, the nurse midwife, or physician assistant), after issuer violates the rules of this paragraph consultation with the mother, discharges the consultation with the mother. State laws (c)(3) because coinsurance for the second 24- mother or newborn earlier. that require the decision to be made by hour period of the 48-hour stay is greater Also, under federal law, issuers may not the attending provider with the consent than that for the preceding portion of the set the level of benefits or out-of-pocket costs of the mother satisfy the criterion of this stay. (In addition, the issuer also violates the so that any later portion of the 48-hour (or paragraph (e)(1)(iii). similar rule in paragraph (b)(2) of this 96-hour) stay is treated in a manner less (2) Relation to section 2762(a) of the section.) favorable to the mother or newborn than any PHS Act. The preemption provisions Example 2. (i) Facts. An issuer generally earlier portion of the stay. covers 70 percent of the cost of a hospital contained in section 2762(a) of the PHS In addition, an issuer may not, under Act and § 148.210(b) do not supersede a length of stay in connection with childbirth. federal law, require that a physician or other However, the issuer will cover 80 percent of health care provider obtain authorization for state law described in paragraph (e)(1) the cost of the stay if the covered individual prescribing a length of stay of up to 48 hours of this section. notifies the issuer of the pregnancy in (or 96 hours). However, to use certain (f) Applicability date. Section 2751 of advance of admission and uses whatever providers or facilities, or to reduce your out- the PHS Act applies to health insurance hospital the issuer may designate. of-pocket costs, you may be required to coverage offered, sold, issued, renewed, (ii) Conclusion. In this Example 2, the obtain precertification. For information on in effect, or operated in the individual issuer does not violate the rules of this precertification, contact your issuer. paragraph (c)(3) because the level of benefits market on or after January 1, 1998. This provided (70 percent or 80 percent) is (3) Timing of disclosure. The section applies to health insurance consistent throughout the 48-hour (or 96- disclosure notice in paragraph (d)(2) of coverage offered, sold, issued, renewed, hour) hospital length of stay required under this section shall be furnished to the in effect, or operated in the individual paragraph (a) of this section. (In addition, the covered individuals in the form of a market on or after January 1, 2009. issuer does not violate the rules in paragraph copy of the contract, or a rider (or Dated: May 11, 2007. (a)(4) or (b)(2) of this section.) equivalent amendment to the contract) Leslie V. Norwalk, (4) Compensation of attending no later than December 19, 2008. Acting Administrator, Centers for Medicare provider. This section does not prevent To the extent an issuer has already & Medicaid Services. an issuer from negotiating with an provided the disclosure notice in Dated: October 30, 2007. attending provider the level and type of paragraph (d)(2) of this section to Michael O. Leavitt, compensation for care furnished in covered individuals, it need not provide accordance with this section (including another such notice by December 19, Secretary, Department of Health and Human Services. paragraph (b) of this section). 2008. (5) Applicability. This section applies (4) Exception. The requirements of Editorial Note: This document was to all health insurance coverage issued this paragraph (d) do not apply with received in the Office of the Federal Register in the individual market, and is not respect to coverage regulated under a on October 14, 2008. limited in its application to coverage state law described in paragraph (e) of [FR Doc. E8–24666 Filed 10–17–08; 8:45 am] that is provided to eligible individuals this section. BILLING CODE 4830–01–4510–29–4120–01–P

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Part IV

The President Notice of October 16, 2008—Continuation of the National Emergency With Respect To Significant Narcotics Traffickers Centered in Colombia

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Federal Register Presidential Documents Vol. 73, No. 203

Monday, October 20, 2008

Title 3— Notice of October 16, 2008

The President Continuation of the National Emergency With Respect To Significant Narcotics Traffickers Centered in Colombia

On October 21, 1995, by Executive Order 12978, the President declared a national emergency pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701–1706) to deal with the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the actions of significant narcotics traffickers centered in Colombia, and the extreme level of violence, corruption, and harm such actions cause in the United States and abroad. Because the actions of significant narcotics traffickers centered in Colombia continue to threaten the national security, foreign policy, and economy of the United States and to cause an extreme level of violence, corruption, and harm in the United States and abroad, the national emergency declared on October 21, 1995, and the measures adopted pursuant thereto to deal with that emergency, must continue in effect beyond October 21, 2008. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency with respect to significant narcotics traffickers centered in Colombia. This notice shall be published in the Federal Register and transmitted to the Congress.

THE WHITE HOUSE, October 16, 2008 [FR Doc. E8–25108 Filed 10–17–08; 11:15 am] Billing code 3195–W9–P

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Reader Aids Federal Register Vol. 73, No. 203 Monday, October 20, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 7 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: 205...... 59479 331...... 61325 The United States Government Manual 741–6000 8294...... 57223 8295...... 57233 984...... 57485 Other Services 8296...... 57475, 60609 1260...... 60097 Electronic and on-line services (voice) 741–6020 8297...... 58429 Proposed Rules: Privacy Act Compilation 741–6064 8298...... 58431 340...... 60008 Public Laws Update Service (numbers, dates, etc.) 741–6043 8299...... 58433 946...... 62215 TTY for the deaf-and-hard-of-hearing 741–6086 8300...... 58861 966...... 62218 8301...... 58863 1703...... 61198 8302...... 58867 1780...... 61198 ELECTRONIC RESEARCH 8303...... 60603 3570...... 61198 4280...... 61198 World Wide Web 8304...... 61649 8305...... 61651 4284...... 61198 Full text of the daily Federal Register, CFR and other publications 8306...... 61653 5002...... 61198 is located at: http://www.gpoaccess.gov/nara/index.html 8307...... 61655 8 CFR Federal Register information and research tools, including Public Executive Orders: Inspection List, indexes, and links to GPO Access are located at: 12962 (amended by 100...... 58023 http://www.archives.gov/federallregister 13474) ...... 57229 212...... 58023 13176 (Superseded by 214...... 61332 E-mail 13476) ...... 60605 248...... 61332 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13474...... 57229 9 CFR an open e-mail service that provides subscribers with a digital EO 12139 (amended form of the Federal Register Table of Contents. The digital form by EO 13475)...... 60095 77...... 60099 of the Federal Register Table of Contents includes HTML and EO 12949 (amended 121...... 61325 PDF links to the full text of each document. by EO 13475)...... 60095 149...... 60464 160...... 60464 To join or leave, go to http://listserv.access.gpo.gov and select EO 13475 ...... 60095 161...... 60464 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13476...... 60605 (or change settings); then follow the instructions. Administrative Orders: 10 CFR Memorandums: PENS (Public Law Electronic Notification Service) is an e-mail Memorandum of 50...... 57235, 60612 service that notifies subscribers of recently enacted laws. October 3, 2008 431...... 58772 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html (supersedes Proposed Rules: and select Join or leave the list (or change settings); then follow Memorandum of 35...... 58063 the instructions. December 20, 50...... 62220 FEDREGTOC-L and PENS are mailing lists only. We cannot 2005) ...... 58869 51 ...... 59540, 59547, 59551 respond to specific inquiries. Notices: 430...... 62034, 62134 Notice of October 16, 431...... 62034 Reference questions. Send questions and comments about the 2008 ...... 62433 Federal Register system to: [email protected] Presidential 11 CFR The Federal Register staff cannot interpret specific documents or Determinations: Proposed Rules: regulations. PD 2008-29 of 100...... 62224 September 30, 101...... 62224 FEDERAL REGISTER PAGES AND DATE, OCTOBER 2008 ...... 58865 102...... 62224 2009-1...... 60935 104...... 62224 56935–57234...... 1 2009-2...... 60937 110...... 62224 113...... 62224 57235–57474...... 2 4 CFR 57475–58018...... 3 116...... 62224 22...... 60609 400...... 62224 58019–58434...... 6 9001...... 62224 58435–58866...... 7 5 CFR 9003...... 62224 58867–59478...... 8 295...... 58019 9031...... 62224 59479–60094...... 9 315...... 60611 9033...... 62224 60095–60602...... 10 316...... 60611 9035...... 62224 60603–60934...... 14 9701...... 58435 60935–61324...... 15 9901...... 58435 12 CFR 61325–61648...... 16 Proposed Rules: 201...... 61657 61649–62186...... 17 532...... 58506 204...... 57488, 59482 62187–62434...... 20 263...... 58031 6 CFR 330...... 61658 Proposed Rules: 740...... 56935 5...... 62214 745...... 60616

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792...... 56936 143...... 57512 543...... 60492 165...... 62235 951...... 61660 190...... 57235 547...... 60508 1291...... 61660 229...... 57237 Proposed Rules: 34 CFR Proposed Rules: 230...... 58300, 60050 502...... 60490 5b...... 61354 327...... 61560 231...... 60050 546...... 60490 701...... 57013 232...... 60050 36 CFR 742...... 57013 239...... 58300, 60050 26 CFR 294...... 61456 1202...... 60192 240 ...... 58300, 60050, 61666, 1 ...... 58438, 59501, 62199, 1228...... 57245 1250...... 60198 61678 62203, 62204 Proposed Rules: 1773...... 60198 241...... 60050, 61690 54...... 62410 7...... 59585 242 ...... 61690, 61690, 61706 801...... 60627 13 CFR 249 ...... 58300, 60050, 61678 Proposed Rules: 37 CFR 101...... 61665 Proposed Rules: 1 ...... 58514, 59575, 61770 10...... 59513 121...... 56940, 61336 230...... 61753 54...... 60208 Proposed Rules: 124...... 57490 240...... 61753 201...... 58073, 60658 125...... 56940, 61336 27 CFR 18 CFR 385...... 57033 127...... 56940, 61336 447...... 57239 134...... 56940, 61336 35...... 57515 478...... 57239 38 CFR Proposed Rules: 41...... 58720 479...... 57239 3...... 61736 121...... 57014, 61369 131...... 57515 555...... 57239 125...... 57014, 61369 17...... 58875, 58877 141...... 58720 59...... 58877 127...... 57014, 61369 154...... 57515 28 CFR 134...... 57014, 61369 Proposed Rules: 157...... 57515 58...... 58438 5...... 62004 14 CFR 250...... 57515 281...... 57515 29 CFR 39 CFR 33...... 57235 284...... 57515 403...... 57412 39 ...... 56956, 56958, 56960, 111...... 61355 300...... 57515 2509 ...... 58445, 61731, 61734 58032, 58436, 59486, 59488, 3020...... 59514, 62184 301...... 60105 2550 ...... 58447, 58450, 58459 59491, 59493, 60102, 61336, 341...... 57515 2578...... 58549 61342, 61343, 61346 40 CFR 344...... 57515 2590...... 62410 71 ...... 58871, 60622, 60939, 3...... 61737 346...... 57515 4022...... 61352 60940 9...... 59034 347...... 57515 4044...... 61352 93...... 60544, 60574 348...... 57515 49...... 61740 97 ...... 59494, 60623, 60942, Proposed Rules: 50...... 58042 375...... 57515 3...... 62229 61348 385...... 57515 52 ...... 56970, 57246, 58475, 5...... 62229 59518, 60955, 60957, 61357 Proposed Rules: Proposed Rules: 1926...... 59714 59...... 58481 39 ...... 58507, 58509, 58901, 40...... 62229 2550...... 60657 60...... 59034 58903, 58906, 59571, 59573, 806...... 57271 60201, 60203, 60206, 60657, 2590...... 60208 62...... 56981 61369, 61372, 61375, 61378, 19 CFR 30 CFR 80 ...... 57248, 59034, 61358 61747 81...... 56983 4...... 60943 71 ...... 58512, 58513, 61749, 203...... 58467 85...... 59034 210...... 58875 61750, 61752 20 CFR 86...... 59034 91...... 57270 260...... 58467 89...... 59034 93...... 60996 501...... 62190 938...... 60944 90...... 59034 950...... 57538 21 CFR 91...... 59034 15 CFR 92...... 59034 31 CFR 730...... 56964 203...... 59496 94...... 59034 732...... 56964, 57495 205...... 59496 30...... 62205 180 ...... 56995, 58880, 60151, 734...... 56964, 57495 522...... 58871, 58872 60963, 60969 32 CFR 736...... 56964 558...... 58873 197...... 61256 738...... 57495 801...... 58874 112...... 59501 261...... 59523 199...... 59504 1027...... 59034 740...... 57495, 60910 22 CFR 742...... 57495, 58033 212...... 59505 1033...... 59034 744...... 57495, 58033 7...... 62196 706...... 60947 1039...... 59034 746...... 57495 40...... 62197 750...... 60948 1042...... 59034 748...... 57495 50...... 62196 751...... 60949 1045...... 59034 750...... 57495 126...... 58041 756...... 60949 1048...... 59034 762...... 56964, 57495 757...... 60950 1051...... 59034 23 CFR 770...... 57495 Proposed Rules: 1054...... 59034 772...... 57495, 60910 Proposed Rules: 288...... 59579 1060...... 59034 774 ...... 56964, 57495, 58033, 620...... 58908 325...... 59582 1065...... 59034 60910 635...... 58908 553...... 57017 1068...... 59034 Proposed Rules: 636...... 58908 1702...... 61771 1074...... 59034 740...... 57554 710...... 58908 1703...... 61772 Proposed Rules: 772...... 57554 3...... 61773 24 CFR 33 CFR 50...... 58080 16 CFR 25...... 60538 100...... 57242, 60629 51...... 58080 1610...... 62187 990...... 61350 105...... 60951 52 ...... 57272, 58084, 58515, Proposed Rules: 4001...... 58418 110...... 57244, 60629 58913, 59586, 60996, 61381 3...... 58832 Proposed Rules: 117 ...... 58473, 60629, 60952, 60...... 59956 4...... 58832 30...... 61754 60953, 60954 61...... 59956 1500...... 58063 570...... 61757 147...... 60629 63 ...... 58352, 59956, 60432, 165 ...... 59509, 59511, 60629 62384 17 CFR 25 CFR Proposed Rules: 80...... 57274 30...... 60625 542...... 60492 117...... 58070 158...... 59382, 60211

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161...... 59382, 60211 Proposed Rules: 400...... 57567 571...... 58887 180...... 57040 67...... 60216 Proposed Rules: 228...... 60662 48 CFR 45 CFR 109...... 57281 262...... 58388 215...... 62211 571...... 57297 264...... 58388 144...... 62410 252...... 62211 830...... 58520 265...... 58388 146...... 62410 Proposed Rules: 266...... 58388 148...... 62410 204...... 62239 271...... 58388 Proposed Rules: 217...... 62239 50 CFR 144...... 60208 501...... 57580 17...... 61936 42 CFR 146...... 60208 504...... 59589 21...... 59448 9...... 60410 148...... 60208 511...... 59590 22...... 59448 34...... 58047, 62210 514...... 60224 46 CFR 73...... 61363 515...... 57580 216...... 60976 100...... 59528 393...... 59530 532...... 58515 222...... 57010, 60638 411...... 57541 552 ...... 57580, 58515, 59589, 223...... 57010, 60638 47 CFR 412...... 57541 59590, 60224 224...... 60173 413...... 56998, 57541 0...... 57543 553...... 60224 229...... 60640 422...... 57541 12...... 59537 1633...... 58886 622...... 58058, 58059 441...... 57854 25...... 56999 2133...... 58886 648 ...... 58497, 58498, 58898, 447...... 58491 52...... 60172 60986 49 CFR 489...... 57541 64...... 60172 660 ...... 58499, 60191, 60642, 73 ...... 56999, 57268, 57551, 1...... 57268, 59538 60987 43 CFR 57552, 60631, 60974, 60975, 89...... 57268 679 ...... 57011, 57553, 58061, 60976 11...... 57259 171...... 57001 58503, 58504, 58899, 59538, 76...... 61742 46...... 61292 172...... 57001, 57008 60994, 61366, 61367, 62212 90...... 60631 Proposed Rules: 173...... 57001 697...... 58059 403...... 58085 Proposed Rules: 175...... 57001 2300...... 60212 Ch. 1 ...... 59586 176...... 57001 Proposed Rules: 8360...... 57564 1...... 60997 178...... 57001 17 ...... 57314, 58922, 61007 27...... 57750 179...... 57001 216...... 60754, 60836 44 CFR 43...... 60997 180...... 57001 226...... 57583, 58527 64...... 60158 73 ...... 57280, 60670, 60671, 192...... 62148 622...... 61015 65...... 60159 62237, 62238, 62239 232...... 61512 679...... 57585, 62241 67...... 60162 90...... 57750 541...... 60633 697...... 58099

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REMINDERS Contingency Plan; National Unified Rule for Loss on Request for Public The items in this list were Priorities List; published 8- Subsidiary Stock: Comments: editorially compiled as an aid 21-08 Correcting Amendment; Potential Market Impact of to Federal Register users. FEDERAL published 10-20-08 Proposed Stockpile Inclusion or exclusion from COMMUNICATIONS Disposals for Fiscal Year this list has no legal COMMISSION COMMENTS DUE NEXT 2010; comments due by significance. Radio Broadcasting Services: WEEK 10-30-08; published 9-30- Beeville, Christine, George 08 [FR E8-22734] West, and Tilden, TX; AGRICULTURE COMMERCE DEPARTMENT RULES GOING INTO published 9-18-08 DEPARTMENT National Oceanic and EFFECT OCTOBER 20, Television Broadcasting Agricultural Marketing Atmospheric Administration 2008 Services: Service Characterization of the West Castle Rock, CO; published Domestic Dates Produced or Coast Deep-set Longline COMMERCE DEPARTMENT 9-19-08 Packed in Riverside County, CA; Decreased Assessment Fishery Operating Outside Industry and Security Shreveport, LA; published Rate; comments due by 10- of the U.S. Exclusive Bureau 10-3-08 Economic Zone; comments HEALTH AND HUMAN 27-08; published 8-26-08 Mandatory Electronic Filing of [FR E8-19697] due by 10-29-08; published SERVICES DEPARTMENT Export and Reexport Dried Prunes Produced in 9-29-08 [FR E8-22818] Centers for Disease Control License Applications, California; Decreased Conducting Consultations and Prevention Classification Requests, Assessment Rate; Pursuant to Section 304(d) Encryption Review Medical Examination of Aliens; comments due by 10-27-08; of the National Marine Requests, etc.; published 8- Revisions to Medical published 8-26-08 [FR E8- Sanctuaries Act; comments 21-08 Screening Process; 19695] due by 10-31-08; published published 10-20-08 COMMERCE DEPARTMENT AGRICULTURE 8-26-08 [FR E8-19662] National HOUSING AND URBAN DEPARTMENT Fisheries of the Exclusive Telecommunications and DEVELOPMENT Animal and Plant Health Economic Zone Off Alaska: DEPARTMENT Information Administration Inspection Service Atka Mackerel in the Bering Manufactured home Digital-to-Analog Converter Importation of Grapes from Sea and Aleutian Islands construction and safety Box Coupon Program: Chile Under a Systems Management Area; standards: Household Eligibility and Approach; comments due by comments due by 10-31- Model manufactured home 10-27-08; published 8-27-08 08; published 10-16-08 Application Process for installation standards; Individuals Residing in [FR E8-19875] [FR E8-24585] establishment; published Importation of Sweet Oranges Nursing Homes, 10-19-07 Pollock in Statistical Area Intermediate Care and Grapefruit from Chile; 610 of the Gulf of Alaska; Manufactured Home Facilities, etc.; published comments due by 10-27-08; comments due by 10-31- Installation Program; published 8-28-08 [FR E8- 9-19-08 08; published 10-16-08 published 6-20-08 19871] [FR E8-24584] COMMODITY FUTURES INTERIOR DEPARTMENT AGRICULTURE TRADING COMMISSION Small Takes of Marine National Park Service DEPARTMENT Mammals Incidental to Exemption from Registration Cooperative State Research, Special Regulation; Areas of Specified Activities; Seabird for Certain Firms with Education, and Extension the National Park System; and Pinniped Research Regulation 30.10 Relief; Service published 9-19-08 Activities in Central published 9-18-08 Competitive and STATE DEPARTMENT California; comments due by DEFENSE DEPARTMENT Noncompetitive Non-formula Board of Appellate Review; 10-29-08; published 9-29-08 Grant Programs: Defense Acquisition Review of Loss of [FR E8-22819] Regulations System Nationality; published 10-20- General Grant Administrative ENERGY DEPARTMENT Defense Federal Acquisition 08 Provisions and Program- Regulation Supplement: Uncertified Foreign Health- Specific Administrative Energy Conservation Program: Provisions for the Evaluation Factor for Use of Care Workers; published 10- Test Procedures for Battery Specialty Crop Research Members of the Selected 20-08 Chargers and External Initiative; Correction; Reserve; published 10-20- Power Supplies and for TRANSPORTATION comments due by 10-30- 08 DEPARTMENT Multiple-Voltage External 08; published 9-5-08 [FR Power Supplies; Federal Aviation DEFENSE DEPARTMENT E8-20562] comments due by 10-29- Administration Engineers Corps Meetings: 08; published 8-15-08 [FR Airworthiness Directives: Restricted Areas: Solicitation of Input from E8-18576] Engine Components, Inc. Blount Island Command and Stakeholders Regarding (ECi) Reciprocating ENVIRONMENTAL Marine Corps Support Programs for Hispanic- Engine Cylinder PROTECTION AGENCY Facility-Blount Island, Serving Agricultural Assemblies; published 9- Antimicrobial Registration Jacksonville, FL; Colleges and Universities; 15-08 Review Final Work Plans published 9-18-08 comments due by 10-27- Hawker Beechcraft 08; published 9-24-08 [FR and Proposed Registration ENERGY DEPARTMENT Corporation Model 390 E8-22418] Review Decisions; Coordination of Federal Airplanes; published 10-9- AGRICULTURE Availability: Authorizations for Electric 08 DEPARTMENT Sodium Hydroxide (Mineral Transmission Facilities Airworthiness Standards: Revision of Delegation of Bases, Strong) and Capric Coordination of Federal Engine Control System Authority; comments due by (Decanoic) Acid; Authorizations for Electric Requirements; published 10-30-08; published 9-30-08 comments due by 10-28- Transmission Facilities; 8-19-08 [FR E8-22959] 08; published 8-29-08 [FR published 9-19-08 TREASURY DEPARTMENT COMMERCE DEPARTMENT E8-20152] ENVIRONMENTAL Internal Revenue Service Industry and Security Approval and Promulgation of PROTECTION AGENCY Section 1367 Regarding Open Bureau Implementation Plans: National Oil and Hazardous Account Debt; published 10- National Defense Stockpile Vehicle Inspection and Substance Pollution 20-08 Market Impact Committee; Maintenance Program,

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Nevada; comments due Payments; comments due Emergency Withdrawals; R.209/4-40-4.5 et al. by 10-27-08; published 9- by 10-31-08; published 9- comments due by 10-27-08; Model Propellers; 25-08 [FR E8-22557] 16-08 [FR E8-21650] published 10-10-08 [FR E8- comments due by 10-28- Cyprodinil; Pesticide FEDERAL RESERVE 23823] 08; published 8-29-08 [FR Tolerances; comments due SYSTEM INTERIOR DEPARTMENT E8-20081] by 10-27-08; published 8- Minimum Capital Ratios; Fish and Wildlife Service Saab Model SAAB Fairchild SF340A (SAAB/SF340A) 27-08 [FR E8-19747] Capital Adequacy Endangered and Threatened and SAAB 340B Environmental Statements; Guidelines; Capital Wildlife and Plants: Maintenance; Capital: Airplanes; comments due Notice of Intent: Designation of Critical Special Committee 215 by 10-30-08; published 9- Coastal Nonpoint Pollution Habitat for the Peninsular Aeronautical Mobile 30-08 [FR E8-22915] Control Programs; States Ranges Population of Satellite (Route) Services Vulcanair S.p.A. Model P68 and Territories— Desert Bighorn Sheep; Next Generation Satellite Series Airplanes; Florida and South comments due by 10-27- Services and Equipment; comments due by 10-27- Carolina; Open for 08; published 8-26-08 [FR comments due by 10-30- 08; published 9-26-08 [FR comments until further E8-19465] 08; published 9-30-08 [FR E8-22338] notice; published 2-11- LABOR DEPARTMENT E8-22741] TREASURY DEPARTMENT 08 [FR 08-00596] Risk-Based Capital Guidelines; Mine Safety and Health Comptroller of the Currency Exemption from the Capital Adequacy Administration Minimum Capital Ratios; Requirement of a Tolerance: Guidelines: Alcohol- and Drug-Free Mines; Capital Adequacy Bacillus subtilis GB03; Standardized Framework; Policy, Prohibitions, Testing, Guidelines; Capital comments due by 10-27- comments due by 10-27- Training, and Assistance; Maintenance; Capital: 08; published 8-27-08 [FR 08; published 7-29-08 [FR comments due by 10-29-08; E8-19860] E8-16262] published 9-26-08 [FR E8- Special Committee 215 Pesticide Tolerances: Risk-Based Capital Guidelines; 22679] Aeronautical Mobile Satellite (Route) Services Dichlobenil; comments due Leverage Capital Guidelines; LIBRARY OF CONGRESS comments due by 10-31-08; Next Generation Satellite by 10-27-08; published 8- Copyright Royalty Board, published 9-26-08 [FR E8- Services and Equipment; 27-08 [FR E8-19859] Library of Congress 22702] comments due by 10-30- Fenbuconazole; comments Transactions Between Member Mechanical and Digital 08; published 9-30-08 [FR due by 10-27-08; Banks and Their Affiliates: Phonorecord Delivery Rate E8-22741] published 8-27-08 [FR E8- Determination Proceeding; Exemption for Certain Risk-Based Capital Guidelines; 19858] comments due by 10-31-08; Purchases of Asset- Capital Adequacy published 10-1-08 [FR E8- State Hazardous Waste Backed Commercial Paper Guidelines: 23184] Management Program by a Member Bank from Standardized Framework; Revision: an Affiliate; comments OFFICE OF MANAGEMENT comments due by 10-27- Idaho; comments due by due by 10-31-08; AND BUDGET 08; published 7-29-08 [FR 10-30-08; published 9-30- published 9-26-08 [FR E8- Management and Budget E8-16262] 08 [FR E8-22800] 22701] Office Risk-Based Capital Guidelines; FEDERAL HEALTH AND HUMAN Guidance for Drug Free Money Market Mutual COMMUNICATIONS SERVICES DEPARTMENT Workplace Requirements Funds; comments due by COMMISSION Food and Drug (Financial Assistance); 10-31-08; published 9-26-08 Agency Information Collection Administration comments due by 10-27-08; [FR E8-22720] Activities; Proposals, New Animal Drugs; published 9-26-08 [FR E8- TREASURY DEPARTMENT Submissions, and Approvals; Cephalosporin Drugs; 22717] Internal Revenue Service comments due by 10-27-08; Extralabel Animal Drug Use: PERSONNEL MANAGEMENT Alcohol Fuel and Biodiesel; published 8-28-08 [FR E8- Order of Prohibition; OFFICE Renewable Diesel; 20011] Extension of Comment Determining Rate of Basic Alternative Fuel; Diesel- FEDERAL DEPOSIT Period; Delay of Effective Pay; Collection by Offset Water Fuel Emulsion; INSURANCE CORPORATION Date of Final Rule; From Indebted Government Taxable Fuel Definitions; comments due by 11-1- Minimum Capital Ratios; Employees; comments due Excise Tax Returns; 08; published 8-18-08 [FR by 10-27-08; published 8- comments due by 10-27-08; Capital Adequacy E8-18967] Guidelines; Capital 27-08 [FR E8-19819] published 7-29-08 [FR E8- Maintenance; Capital: HOMELAND SECURITY SMALL BUSINESS 17270] DEPARTMENT ADMINISTRATION TREASURY DEPARTMENT Special Committee 215 Coast Guard Aeronautical Mobile Women-Owned Small Terrorism Risk Insurance Drawbridge Operation Satellite (Route) Services Business Federal Contract Programs: Regulations: Next Generation Satellite Assistance Procedures; Shrewsbury River, Route 36 Cap on Annual Liability; Services and Equipment; comments due by 10-31-08; comments due by 10-30- comments due by 10-30- Bridge, Highlands, NJ, published 10-1-08 [FR E8- Schedule Change; 08; published 9-30-08 [FR 08; published 9-30-08 [FR 23139] E8-22940] E8-22741] comments due by 11-1- 08; published 8-8-08 [FR TRANSPORTATION TREASURY DEPARTMENT Risk-Based Capital Guidelines; E8-18312] DEPARTMENT Thrift Supervision Office Capital Adequacy Special Local Regulations for Federal Aviation Guidelines: Minimum Capital Ratios; Marine Events: Administration Capital Adequacy Standardized Framework; Spa Creek, Annapolis, MD; Airworthiness Directives: Guidelines; Capital comments due by 10-27- comments due by 10-29- 328 Support Services GmbH Maintenance; Capital: 08; published 7-29-08 [FR 08; published 9-29-08 [FR Dornier Model 328 100 E8-16262] Special Committee 215 E8-22442] Airplanes; comments due Aeronautical Mobile FEDERAL HOUSING INTERIOR DEPARTMENT by 10-30-08; published 9- Satellite (Route) Services FINANCING AGENCY Land Management Bureau 30-08 [FR E8-22907] Next Generation Satellite Golden Parachute Payments Land Withdrawals; Removal of Dowty Propellers R175/4-30; Services and Equipment; and Indemnification Regulations Covering R184/4-30-4; R193/4-30-4; comments due by 10-30-

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08; published 9-30-08 [FR H.R. 1714/P.L. 110–419 2008 (Oct. 15, 2008; 122 Stat. S. 3641/P.L. 110–431 E8-22741] To clarify the boundaries of 4820) Risk-Based Capital Guidelines; Coastal Barrier Resources H.R. 6469/P.L. 110–426 To authorize funding for the Capital Adequacy System Clam Pass Unit FL- Stephanie Tubbs Jones Organ National Crime Victim Law Guidelines: 64P. (Oct. 15, 2008; 122 Stat. Transplant Authorization Act of Institute to provide support for Standardized Framework; 4773) 2008 (Oct. 15, 2008; 122 Stat. victims of crime under Crime comments due by 10-27- H.R. 4544/P.L. 110–420 4835) Victims Legal Assistance 08; published 7-29-08 [FR Code Talkers Recognition Act H.R. 6524/P.L. 110–427 Programs as a part of the E8-16262] of 2008 (Oct. 15, 2008; 122 To authorize the Administrator Victims of Crime Act of 1984. Stat. 4774) of General Services to take (Oct. 15, 2008; 122 Stat. LIST OF PUBLIC LAWS H.R. 6045/P.L. 110–421 certain actions with respect to 4847) Bulletproof Vest Partnership parcels of real property This is a continuing list of Grant Act of 2008 (Oct. 15, located in Eastlake, Ohio, and Last List October 17, 2008 public bills from the current 2008; 122 Stat. 4778) Koochiching County, Minnesota, and for other session of Congress which H.R. 6063/P.L. 110–422 have become Federal laws. It purposes. (Oct. 15, 2008; 122 National Aeronautics and may be used in conjunction Stat. 4837) Space Administration with ‘‘P L U S’’ (Public Laws H.R. 7082/P.L. 110–428 Public Laws Electronic Authorization Act of 2008 Update Service) on 202–741– Inmate Tax Fraud Prevention Notification Service (Oct. 15, 2008; 122 Stat. 6043. This list is also Act of 2008 (Oct. 15, 2008; 4779) (PENS) available online at http:// 122 Stat. 4839) H.R. 6073/P.L. 110–423 www.archives.gov/federal- H.R. 7177/P.L. 110–429 register/laws.html. To provide that Federal To authorize the transfer of employees receiving their pay The text of laws is not naval vessels to certain PENS is a free electronic mail by electronic funds transfer foreign recipients, and for published in the Federal shall be given the option of notification service of newly Register but may be ordered other purposes. (Oct. 15, enacted public laws. To receiving their pay stubs 2008; 122 Stat. 4842) in ‘‘slip law’’ (individual electronically. (Oct. 15, 2008; subscribe, go to http:// H.J. Res. 100/P.L. 110–430 pamphlet) form from the 122 Stat. 4818) listserv.gsa.gov/archives/ Superintendent of Documents, Appointing the day for the publaws-l.html U.S. Government Printing H.R. 6083/P.L. 110–424 convening of the first session Office, Washington, DC 20402 To authorize funding to of the One Hundred Eleventh (phone, 202–512–1808). The conduct a national training Congress and establishing the Note: This service is strictly text will also be made program for State and local date for the counting of the for E-mail notification of new available on the Internet from prosecutors. (Oct. 15, 2008; electoral votes for President laws. The text of laws is not GPO Access at http:// 122 Stat. 4819) and Vice President cast by available through this service. www.gpoaccess.gov/plaws/ H.R. 6353/P.L. 110–425 the electors in December PENS cannot respond to index.html. Some laws may Ryan Haight Online Pharmacy 2008. (Oct. 15, 2008; 122 specific inquiries sent to this not yet be available. Consumer Protection Act of Stat. 4846) address.

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

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Title Stock Number Price Revision Date Title Stock Number Price Revision Date 300–499 ...... (869–064–00097–1) ...... 64.00 Apr. 1, 2008 63 (63.1440–63.6175) .... (869–064–00150–1) ...... 35.00 July 1, 2008 500–599 ...... (869–064–00098–0) ...... 12.00 5 Apr. 1, 2008 63 (63.6580–63.8830) .... (869–062–00151–7) ...... 32.00 July 1, 2007 600–End ...... (869–064–00099–8) ...... 20.00 Apr. 1, 2008 63 (63.8980–End) ...... (869–064–00152–8) ...... 38.00 July 1, 2008 27 Parts: 64–71 ...... (869–064–00153–6) ...... 32.00 July 1, 2008 1–39 ...... (869–064–00100–5) ...... 35.00 Apr. 1, 2008 72–80 ...... (869–062–00154–1) ...... 62.00 July 1, 2007 40–399 ...... (869–064–00101–3) ...... 67.00 Apr. 1, 2008 81–84 ...... (869–064–00155–2) ...... 53.00 July 1, 2008 400–End ...... (869–064–00102–1) ...... 21.00 Apr. 1, 2008 85–86 (85–86.599–99) .... (869–064–00156–1) ...... 64.00 July 1, 2008 86 (86.600–1–End) ...... (869–064–00157–9) ...... 53.00 July 1, 2008 28 Parts: ...... *87–99 ...... (869–064–00158–7) ...... 63.00 July 1, 2008 0–42 ...... (869–064–00103–0) ...... 64.00 July 1, 2008 100–135 ...... (869–064–00159–5) ...... 48.00 July 1, 2008 43–End ...... (869–064–00104–8) ...... 63.00 July 1, 2008 136–149 ...... (869–062–00160–6) ...... 61.00 July 1, 2007 29 Parts: 150–189 ...... (869–062–00161–4) ...... 50.00 July 1, 2007 *0–99 ...... (869–064–00105–6) ...... 53.00 July 1, 2008 190–259 ...... (869–064–00162–5) ...... 42.00 July 1, 2008 100–499 ...... (869–062–00106–1) ...... 23.00 July 1, 2007 260–265 ...... (869–064–00163–3) ...... 53.00 July 1, 2008 500–899 ...... (869–062–00107–0) ...... 61.00 7July 1, 2007 266–299 ...... (869–062–00164–9) ...... 50.00 July 1, 2007 900–1899 ...... (869–064–00108–1) ...... 39.00 July 1, 2008 300–399 ...... (869–064–00165–0) ...... 45.00 July 1, 2008 *1900–1910 (§§ 1900 to *400–424 ...... (869–064–00166–8) ...... 59.00 July 1, 2008 1910.999) ...... (869–064–00109–9) ...... 64.00 July 1, 2008 425–699 ...... (869–062–00167–3) ...... 61.00 July 1, 2007 1910 (§§ 1910.1000 to *700–789 ...... (869–064–00168–4) ...... 64.00 July 1, 2008 end) ...... (869–062–00110–0) ...... 46.00 July 1, 2007 *790–End ...... (869–064–00169–2) ...... 64.00 July 1, 2008 *1911–1925 ...... (869–064–00111–1) ...... 33.00 July 1, 2008 41 Chapters: 1926 ...... (869–064–00112–9) ...... 53.00 July 1, 2008 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 *1927–End ...... (869–064–00113–7) ...... 65.00 July 1, 2008 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 30 Parts: 3–6 ...... 14.00 3 July 1, 1984 1–199 ...... (869–064–00114–5) ...... 60.00 July 1, 2008 7 ...... 6.00 3 July 1, 1984 *200–699 ...... (869–064–00115–3) ...... 53.00 July 1, 2008 8 ...... 4.50 3 July 1, 1984 *700–End ...... (869–064–00116–1) ...... 61.00 July 1, 2008 9 ...... 13.00 3 July 1, 1984 10–17 ...... 9.50 3 July 1, 1984 31 Parts: 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 0–199 ...... (869–064–00117–0) ...... 44.00 July 1, 2008 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 200–499 ...... (869–064–00118–8) ...... 49.00 July 1, 2008 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 500–End ...... (869–064–00119–6) ...... 65.00 July 1, 2008 19–100 ...... 13.00 3 July 1, 1984 32 Parts: 1–100 ...... (869–064–00170–6) ...... 27.00 July 1, 2008 1–39, Vol. I ...... 15.00 2 July 1, 1984 101 ...... (869–062–00171–1) ...... 21.00 July 1, 2007 1–39, Vol. II ...... 19.00 2 July 1, 1984 102–200 ...... (869–064–00172–2) ...... 56.00 July 1, 2008 1–39, Vol. III ...... 18.00 2 July 1, 1984 201–End ...... (869–064–00173–1) ...... 27.00 July 1, 2008 ...... 1–190 (869–064–00120–0) 64.00 July 1, 2008 42 Parts: 191–399 ...... (869–064–00121–8) ...... 66.00 July 1, 2008 1–399 ...... (869–062–00174–6) ...... 61.00 Oct. 1, 2007 400–629 ...... (869–064–00122–6) ...... 53.00 July 1, 2008 400–413 ...... (869–062–00175–4) ...... 32.00 Oct. 1, 2007 630–699 ...... (869–064–00123–4) ...... 40.00 July 1, 2008 414–429 ...... (869–062–00176–2) ...... 32.00 Oct. 1, 2007 700–799 ...... (869–064–00124–2) ...... 49.00 July 1, 2008 430–End ...... (869–062–00177–1) ...... 64.00 Oct. 1, 2007 800–End ...... (869–064–00125–1) ...... 50.00 July 1, 2008 43 Parts: 33 Parts: 1–999 ...... (869–062–00178–9) ...... 56.00 Oct. 1, 2007 1–124 ...... (869–064–00126–9) ...... 60.00 July 1, 2008 1000–end ...... (869–062–00179–7) ...... 62.00 Oct. 1, 2007 125–199 ...... (869–062–00127–4) ...... 61.00 July 1, 2007 *200–End ...... (869–064–00128–5) ...... 60.00 July 1, 2008 44 ...... (869–062–00180–1) ...... 50.00 Oct. 1, 2007 34 Parts: 45 Parts: 1–299 ...... (869–064–00129–3) ...... 53.00 July 1, 2008 1–199 ...... (869–062–00181–9) ...... 60.00 Oct. 1, 2007 300–399 ...... (869–064–00130–7) ...... 43.00 July 1, 2008 200–499 ...... (869–060–00182–7) ...... 34.00 9Oct. 1, 2007 400–End & 35 ...... (869–062–00131–2) ...... 61.00 July 1, 2007 500–1199 ...... (869–062–00183–5) ...... 56.00 Oct. 1, 2007 1200–End ...... (869–062–00184–3) ...... 61.00 Oct. 1, 2007 36 Parts: 1–199 ...... (869–062–00132–1) ...... 37.00 July 1, 2007 46 Parts: 200–299 ...... (869–062–00133–9) ...... 37.00 July 1, 2007 1–40 ...... (869–062–00185–1) ...... 46.00 Oct. 1, 2007 300–End ...... (869–064–00134–0) ...... 64.00 July 1, 2008 41–69 ...... (869–062–00186–0) ...... 39.00 Oct. 1, 2007 70–89 ...... (869–062–00187–8) ...... 14.00 Oct. 1, 2007 37 ...... (869–064–00135–8) ...... 61.00 July 1, 2008 90–139 ...... (869–062–00188–6) ...... 44.00 Oct. 1, 2007 38 Parts: 140–155 ...... (869–062–00189–4) ...... 25.00 Oct. 1, 2007 *0–17 ...... (869–064–00136–6) ...... 63.00 July 1, 2008 156–165 ...... (869–062–00190–8) ...... 34.00 Oct. 1, 2007 *18–End ...... (869–064–00137–4) ...... 65.00 July 1, 2008 166–199 ...... (869–062–00191–6) ...... 46.00 Oct. 1, 2007 ...... 39 ...... (869–064–00138–2) ...... 45.00 July 1, 2008 200–499 (869–062–00192–4) 40.00 Oct. 1, 2007 500–End ...... (869–062–00193–2) ...... 25.00 Oct. 1, 2007 40 Parts: 47 Parts: 1–49 ...... (869–062–00139–8) ...... 60.00 July 1, 2007 ...... 50–51 ...... (869–064–00140–4) ...... 48.00 July 1, 2008 0–19 (869–062–00194–1) 61.00 Oct. 1, 2007 ...... 52 (52.01–52.1018) ...... (869–064–00141–2) ...... 61.00 July 1, 2008 20–39 (869–062–00195–9) 46.00 Oct. 1, 2007 ...... 52 (52.1019–End) ...... (869–064–00142–1) ...... 67.00 July 1, 2008 40–69 (869–062–00196–7) 40.00 Oct. 1, 2007 ...... 53–59 ...... (869–064–00143–9) ...... 34.00 July 1, 2008 70–79 (869–062–00197–5) 61.00 Oct. 1, 2007 ...... *60 (60.1–End) ...... (869–064–00144–7) ...... 61.00 July 1, 2008 80–End (869–062–00198–3) 61.00 Oct. 1, 2007 *60 (Apps) ...... (869–064–00145–5) ...... 60.00 July 1, 2008 48 Chapters: 61–62 ...... (869–064–00146–3) ...... 48.00 July 1, 2008 1 (Parts 1–51) ...... (869–062–00199–1) ...... 63.00 Oct. 1, 2007 63 (63.1–63.599) ...... (869–064–00147–1) ...... 61.00 July 1, 2008 1 (Parts 52–99) ...... (869–062–00200–9) ...... 49.00 Oct. 1, 2007 63 (63.600–63.1199) ...... (869–062–00148–7) ...... 50.00 July 1, 2007 2 (Parts 201–299) ...... (869–062–00201–7) ...... 50.00 Oct. 1, 2007 63 (63.1200–63.1439) .... (869–064–00149–8) ...... 53.00 July 1, 2008 3–6 ...... (869–062–00202–5) ...... 34.00 Oct. 1, 2007

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

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