12–12–08 Friday Vol. 73 No. 240 Dec. 12, 2008

Pages 75535–75926

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Contents Federal Register Vol. 73, No. 240

Friday, December 12, 2008

Agricultural Marketing Service Centers for Disease Control and Prevention RULES NOTICES Kiwifruit Grown in California; Decreased Assessment Rate, Agency Information Collection Activities; Proposals, 75537–75540 Submissions, and Approvals, 75721–75723

Agriculture Department Commerce Department See Agricultural Marketing Service See International Trade Administration See Animal and Plant Health Inspection Service See National Oceanic and Atmospheric Administration See Food Safety and Inspection Service See Forest Service Commodity Futures Trading Commission NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Significant Price Discovery Contracts on Exempt Submissions, and Approvals, 75665 Commercial Markets, 75888–75921 Environmental Impact Statements; Availability, etc.: Proposed National Bio and Agro-Defense Facility, 75665– Corporation for National and Community Service 75667 NOTICES Agency Information Collection Activities; Proposals, Air Force Department Submissions, and Approvals, 75678–75679 NOTICES Meetings: Defense Department US Air Force Scientific Advisory Board, 75686 See Air Force Department Privacy Act; Systems of Records, 75686–75691 See Army Department See Navy Department NOTICES American Battle Monuments Commission Modification of Federal Advisory Committee Charter, 75679 NOTICES Privacy Act; Systems of Records, 75679–75686 No Fear Act, 75670–75671 Drug Enforcement Administration Animal and Plant Health Inspection Service NOTICES RULES Revocation of Registration: Citrus Canker; Movement of Fruit from a Quarantined Area; Hicham K. Riba, D.D.S., 75773–75774 Bag Markings, 75537 Your Druggist Pharmacy, 75774–75776

Antitrust Division Education Department NOTICES NOTICES National Cooperative Research and Production Act (1993): Credit Enhancement for Charter School Facilities Program; Interchangeable Virtual Instruments Foundation, Inc., Notice inviting Applications for New Awards (FY 75771–75772 2009), 75693–75698 International Electronics Manufacturing Initiative, 75772 OpenSAF Foundation, 75772 Election Assistance Commission PXI Systems Alliance, Inc., 75772 NOTICES Semiconductor Test Consortium, Inc., 75772–75773 Proposed Advisory 09-001 Maintenance of Effort Funding; Request for Public Comment, 75698–75700 Arctic Research Commission NOTICES Energy Department Meetings: See Federal Energy Regulatory Commission Business and Executive Sessions, 75671 Environmental Protection Agency Army Department RULES NOTICES Approval and Promulgation of Implementation Plans: Environmental Impact Statements; Availability, etc.: Alaska; Interstate Transport of Pollution; Correction, Maneuver Center of Excellence Actions, Fort Benning, 75600 GA, 75691–75692 Pesticide Regulations; Technical Amendments, 75592– 75600 Pesticide Tolerance: Arts and Humanities, National Foundation Etofenprox, 75601–75605 See National Foundation on the Arts and the Humanities Pesticide Tolerances: Isoxaflutole, 75605–75609 Broadcasting Board of Governors PROPOSED RULES NOTICES Data Requirements for Antimicrobial Pesticides; Extension Meetings; Sunshine Act, 75671 of Comment Period, 75629

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Revisions to the California State Implementation Plan: Federal Railroad Administration Approval of the Ventura County Air Pollution Control NOTICES District - Reasonably Available Control Technology Waiver of Compliance Request: Analysis, 75626–75628 Capital Metropolitan Transportation Authority; Public NOTICES Hearing, 75808–75809 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 75705–75709 Federal Reserve System Certain New Chemicals; Receipt and Status Information, NOTICES 75709–75714 Change in Bank Control Notices; Acquisition of Shares of Environmental Impact Statements; Availability, etc.: Bank or Bank Holding Companies, 75720 Comments Availability, 75714–75715 Proposals to Engage in Permissible Nonbanking Activities Weekly Receipt, 75715–75716 or to Acquire Companies that are Engaged in Integrated Science Assessment for Oxides of Nitrogen and Permissible Nonbanking Activities, 75720 Sulfur - Environmental Criteria; Document Availability, 75716–75717 Financial Management Service Maine Marine Sanitation Device Standard - Receipt of See Fiscal Service Petition, 75717–75718 Fiscal Service Meetings: RULES Board of Scientific Counselors, National Center for Collateral Acceptability and Valuation, 75589–75591 Environmental Research Standing Subcommittee, 75718–75719 Food and Drug Administration PROPOSED RULES Executive Office of the President Withdrawal of Certain Proposed Rules and Other Proposed See Presidential Documents Actions, 75625–75626 NOTICES Agency Information Collection Activities; Proposals, Federal Communications Commission Submissions, and Approvals, 75723–75724 PROPOSED RULES Draft Guidance for Industry and Food and Drug Petition for Rulemaking Regarding Exclusivity Administration Staff: Arrangements Between Commercial Wireless Carriers Submission and Review of Sterility Information in and Handset Manufacturers, 75629–75630 Premarket Notification Submissions for Devices Radio Broadcasting Services: Labeled as Sterile; Availability, 75724–75725 Mount Enterprise, TX, 75630–75631 Port Angeles, WA, 75631 Food Safety and Inspection Service RULES Federal Deposit Insurance Corporation Uniform Compliance Date for Food Labeling Regulations, 75564–75566 NOTICES Meetings; Sunshine Act, 75719–75720 Forest Service NOTICES Federal Emergency Management Agency Environmental Impact Statements; Availability, etc.: RULES Wallowa-Whitman National Forest, Baker County, OR; Suspension of Community Eligibility, 75609–75611 Snow Basin Vegetation Management Project, 75667– NOTICES 75670 Disaster Housing Assistance Program (DHAP)-Ike, 75729– Proposed New Fee Sites, 75670 75730 Health and Human Services Department See Centers for Disease Control and Prevention Federal Energy Regulatory Commission See Food and Drug Administration NOTICES See National Institutes of Health Applications: NOTICES Consumers Energy Co., 75700–75701 Designation of a Class of Employees for Addition to the Riverbank Ogdensburg, LLC, 75701 Special Exposure Cohort, 75720 Scott’s Mill Hydropower, LLC, 75701–75702 Southern Natural Gas Co., 75702 Homeland Security Department Environmental Impact Statements; Availability, etc.: See Federal Emergency Management Agency Port Barre Investments, L.L.C. (d/b/a Bobcat Gas Storage); See U.S. Customs and Border Protection Bobcat Gas Storage Project Expansion, 75702–75705 RULES Meetings: Adjustment of Status to Lawful Permanent Resident for Tuscarora Gas Transmission Co.; Technical Conference, Aliens in T or U Nonimmigrant Status, 75540–75564 75705 NOTICES Environmental Impact Statements; Availability, etc.: Proposed National Bio and Agro-Defense Facility, 75665– Federal Motor Carrier Safety Administration 75667 NOTICES Agency Information Collection Activities; Proposals, Housing and Urban Development Department Submissions, and Approvals, 75793–75794 NOTICES Qualification of Drivers; Exemption Applications; Vision, Agency Information Collection Activities; Proposals, 75794–75808 Submissions, and Approvals, 75731–75732

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Federal Property Suitable as Facilities to Assist the Labor Department Homeless, 75732 See Occupational Safety and Health Administration Funding Availability (NOFA) for the Section 202 Demonstration Pre-Development Grant Program: Land Management Bureau Extension of Application Due Date, 75732–75733 NOTICES Reconsideration of Waivers Granted to and Alternative Environmental Impact Statements; Availability, etc.: Requirements for the State of Mississippi’s CDBG Mimbres Resource Management Plan (RMPA), Las Cruces Disaster Recovery Grant, 75733–75738 District Office, NM, 75764–75765 Regulatory Waiver Requests Granted for the Third Quarter Meetings: (Calendar Year 2008), 75738–75763 Central Montana Resource Advisory Council, 75765 National Foundation on the Arts and the Humanities Indian Affairs Bureau NOTICES NOTICES Meetings: Indian Gaming, 75764 Arts Advisory Panel, 75776 Indian Gaming; Tribal-State Class III Gaming Compact Amendment Taking Effect, 75764 National Institutes of Health NOTICES Interior Department Agency Information Collection Activities; Proposals, See Indian Affairs Bureau Submissions, and Approvals, 75725–75726 See Land Management Bureau Meetings: See National Park Service Center for Scientific Review, 75726–75727 See Reclamation Bureau National Eye Institute, 75727 See Surface Mining Reclamation and Enforcement Office National Institute on Deafness and Other Communication Disorders, 75727–75728 Internal Revenue Service National Institute on Drug Abuse, 75728–75729 RULES Creditor Continuity of Interest, 75566–75568 National Oceanic and Atmospheric Administration RULES International Trade Administration Fisheries in the Western Pacific: PROPOSED RULES Bottomfish and Seamount Groundfish Fisheries; Steel Import Monitoring and Analysis System, 75624–75625 Management Measures for the Northern Mariana NOTICES Islands, 75615–75622 Extension of Final Results of Antidumping Duty Changed Crustacean Fisheries; Deepwater Shrimp; Correction, Circumstances Review: 75622–75623 Certain Pasta from Italy, 75671–75672 Taking of Marine Mammals Incidental to Commercial Final Results of Countervailing Duty Administrative Fishing Operations: Review: Atlantic Large Whale Take Reduction Plan, 75611–75615 Polyethylene Terephthalate Film, Sheet, and Strip from PROPOSED RULES India, 75672–75673 Fisheries of the Exclusive Economic Zone Off Alaska: Stainless Steel Plate in Coils from Belgium, 75673–75675 Bering Sea and Aleutian Islands Crab Rationalization Final Results of Sunset Review and Revocation of Order: Program, 75661–75664 High and Ultra-High Voltage Ceramic Station Post Bering Sea and Aleutian Islands Management Area and Insulators from Japan, 75675–75676 Gulf of Alaska License Limitation Program, 75659– Quarterly Update to Annual Listing of Foreign Government 75661 Subsidies on Articles of Cheese Subject to an In-Quota Taking and Importing Marine Mammals: Rate of Duty, 75676–75677 U.S. Navy Training in the Virginia Capes Range Complex, 75631–75659 International Trade Commission NOTICES NOTICES Magnuson-Stevens Act Provisions; General Provisions for Investigations: Domestic Fisheries; Adjustment to Exempted Fishing Certain Ground Fault Circuit Interrupters and Products Permit, 75677–75678 Containing Same, 75768–75770 U.S. Climate Change Science Program Draft Unified Circular Welded Carbon Quality Steel Line Pipe from Synthesis Product: China, 75770 Global Climate Change Impacts in the United States, Ethyl Alcohol for Fuel Use; Determination of the Base 75678 Quantity of Imports, 75770–75771 National Park Service NOTICES Judicial Conference of the United States Continuation of Visitor Services, 75765–75767 NOTICES Extension of Concession Contracts, 75767 Meetings: Advisory Committee on Rules of Bankruptcy Procedure, Navy Department 75771 RULES Committee on Rules of Practice and Procedure, 75771 Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea (1972), Justice Department 75591–75592 See Antitrust Division NOTICES See Drug Enforcement Administration Privacy Act; Systems of Records, 75692–75693

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Nuclear Regulatory Commission Corporate Family Transaction: NOTICES Canadian Pacific Railway Co., Soo Line Holding Co., and Licensing Support System Advisory Review Panel; Renewal Dakota, Minnesota & Eastern Railroad Corp., et al.; of Charter, 75776–75777 Iowa, Chicago & Eastern Railroad Corp., 75810 Operation Exemption: Occupational Safety and Health Administration Alabama Warrior Railway, L.L.C.; Sloss Industries Corp. RULES and Jefferson Warrior Railroad Co., Inc., 75811 Clarification of Employer Duty to Provide Personal Petition for Exemption: Protective Equipment and Train Each Employee, Alaska Railroad Corp.; Construct and Operate a Rail Line 75568–75589 Between North Pole and Delta Junction, AK, 75811– 75812 Presidential Documents PROCLAMATIONS Tennessee Valley Authority Special observances: NOTICES Human Rights Day, Bill of Rights Day, and Human Rights Renewal of the Regional Resource Stewardship Council, Week (Proc. 8328), 75923–75926 75793 ADMINISTRATIVE ORDERS Government Agencies and Employees: Transportation Department Agency for International Development, U.S.; designation See Federal Motor Carrier Safety Administration of officers to act as Administrator (Memorandum of See Federal Railroad Administration December 9, 2008), 75535–75536 See Surface Transportation Board

Presidio Trust Treasury Department NOTICES See Fiscal Service Environmental Impact Statements; Availability, etc.: See Internal Revenue Service Presidio Trust Management Plan Main Post Update, NOTICES 75777 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 75812 Public Debt Bureau See Fiscal Service U.S. Customs and Border Protection NOTICES Reclamation Bureau Agency Information Collection Activities; Proposals, Submissions, and Approvals, 75730–75731 NOTICES California Bay-Delta Public Advisory Committee; Charter Renewal, 75767–75768 Separate Parts In This Issue Securities and Exchange Commission NOTICES Part II Self-Regulatory Organizations; Proposed Rule Changes: Interior Department, Surface Mining Reclamation and Municipal Securities Rulemaking Board, 75778–75787 Enforcement Office, 75814–75885

State Department Part III NOTICES Commodity Futures Trading Commission, 75888–75921 Youth Programs Academic Year Disability Components; Part IV Request for Grant Proposals, 75787–75793 Executive Office of the President, Presidential Documents, 75923–75926 Surface Mining Reclamation and Enforcement Office RULES Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams, 75814–75885 Reader Aids Consult the Reader Aids section at the end of this issue for Surface Transportation Board phone numbers, online resources, finding aids, reminders, NOTICES and notice of recently enacted public laws. Abandonment Exemption: To subscribe to the Federal Register Table of Contents Union Pacific Railroad Co.; Comanche County, OK, 75809 LISTSERV electronic mailing list, go to http:// Continuance in Control Exemption: listserv.access.gpo.gov and select Online mailing list Watco Companies, Inc.; Alabama Warrior Railway, L.L.C., archives, FEDREGTOC-L, Join or leave the list (or change 75809–75810 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 73 (2 documents) ...... 75630, Proclamations: 75631 Proclamation...... 75925 50 CFR Administrative Orders: 229 (2 documents) ...... 75611, Memorandums: 75613 Memorandum of July 665 (2 documents) ...... 75615, 10, 2002 75622 (superseded by Proposed Rules: Memorandum of 216...... 75631 December 12, 2008) 679...... 75659 Memorandum of 680...... 75661 December 9, 2008 ...... 75535 7 CFR 301...... 75537 920...... 75537 8 CFR 103...... 75540 212...... 75540 214...... 75540 245...... 75540 299...... 75540 9 CFR 317...... 75564 381...... 75564 17 CFR Proposed Rules: 15...... 75888 16...... 75888 17...... 75888 18...... 75888 19...... 75888 21...... 75888 36...... 75888 40...... 75888 19 CFR Proposed Rules: 360...... 75624 21 CFR Proposed Rules: Ch. 1 ...... 75625 26 CFR 1...... 75566 29 CFR 1910...... 75568 1915...... 75568 1917...... 75568 1918...... 75568 1926...... 75568 30 CFR 780...... 75814 784...... 75814 816...... 75814 817...... 75814 31 CFR 380...... 75589 32 CFR 706...... 75591 40 CFR Ch. 1 ...... 75592 52...... 75600 180 (2 documents) ...... 75601, 75605 Proposed Rules: 52...... 75626 158...... 75629 161...... 75629 44 CFR 64...... 75609 47 CFR Proposed Rules: Ch. 1 ...... 75629

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Federal Register Presidential Documents Vol. 73, No. 240

Friday, December 12, 2008

Title 3— Memorandum of December 9, 2008

The President Designation of Officers of the United States Agency for Inter- national Development To Act As Administrator

Memorandum for the Administrator of the United States Agency for International Development

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., it is hereby ordered that: Section 1. Order of Succession. Subject to the provisions of section 2 of this memorandum, the Assistant Administrators for the Bureaus, in the order in which they were appointed as an Assistant Administrator, shall act as and perform the functions and duties of the office of the Administrator (Administrator), during any period in which the Administrator and the Deputy Administrator have died, resigned, or otherwise become unable to perform the functions and duties of the office of Administrator, until such time as the Administrator or Deputy Administrator are able to perform the functions and duties of that office: (a) Bureau for Africa; (b) Bureau for Asia; (c) Bureau for Democracy, Conflict, and Humanitarian Assistance; (d) Bureau for Economic Growth, Agriculture, and Trade; (e) Bureau for Europe and Eurasia; (f) Bureau for Global Health; (g) Bureau for Latin America and the Caribbean; (h) Bureau for Legislative and Public Affairs; (i) Bureau for Management; and (j) Bureau for the Middle East. Sec. 2. Exceptions. (a) No individual who is serving in an office listed in section 1 in an acting capacity, by virtue of so serving, shall act as the Administrator pursuant to this memorandum. (b) No individual listed in section 1 shall act as Administrator unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998. (c) Notwithstanding the provisions of this memorandum, the President retains discretion, to the extent permitted by law, to depart from this memo- randum in designating an acting Administrator. Sec. 3. This memorandum supersedes the President’s memorandum of July 10, 2002, (Designation of Officers of the United States Agency for Inter- national Development to Act as Administrator). Sec. 4. This memorandum is intended to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, it agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

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Sec. 5. You are authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, December 9, 2008.

[FR Doc. E8–29623 Filed 12–11–08; 8:45 am] Billing code 6116–01–M

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Rules and Regulations Federal Register Vol. 73, No. 240

Friday, December 12, 2008

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: regulated fruit to commercial citrus- contains regulatory documents having general producing States. Background applicability and legal effect, most of which Comments on the interim rule were are keyed to and codified in the Code of Citrus canker is a plant disease caused required to be received on or before Federal Regulations, which is published under September 29, 2008. We received one 50 titles pursuant to 44 U.S.C. 1510. by the bacterium Xanthomonas citri subsp. citri that affects plants and plant comment by that date, from a State The Code of Federal Regulations is sold by parts, including fresh fruit, of citrus and agricultural agency. The commenter the Superintendent of Documents. Prices of citrus relatives (Family Rutaceae). Citrus supported the interim rule. Therefore, new books are listed in the first FEDERAL canker can cause defoliation and other for the reasons given in the interim rule, REGISTER issue of each week. serious damage to the leaves and twigs we are adopting the interim rule as a of susceptible plants. It can also cause final rule without change. lesions on the fruit of infected plants, This action also affirms the DEPARTMENT OF AGRICULTURE which render the fruit unmarketable, information contained in the interim and cause infected fruit to drop from the rule concerning Executive Order 12866 Animal and Plant Health Inspection trees before reaching maturity. The and the Regulatory Flexibility Act, Service aggressive A (Asiatic) strain of citrus Executive Orders 12372 and 12988, and canker can infect susceptible plants the Paperwork Reduction Act. 7 CFR Part 301 rapidly and lead to extensive economic Further, for this action, the Office of [Docket No. APHIS–2008–0080] losses in commercial citrus-producing Management and Budget has waived its review under Executive Order 12866. RIN 0579–AC81 areas. Citrus canker is only known to be present in the United States in the State List of Subjects in 7 CFR Part 301 Citrus Canker; Movement of Fruit From of Florida. Agricultural commodities, Plant a Quarantined Area; Bag Markings The regulations to prevent the diseases and pests, Quarantine, interstate spread of citrus canker are AGENCY: Animal and Plant Health Reporting and recordkeeping contained in §§ 301.75–1 through Inspection Service, USDA. requirements, Transportation. 301.75–14 of ‘‘Subpart—Citrus Canker’’ ACTION: Affirmation of interim rule as (7 CFR 301.75–1 through 301.75–17, PART 301—DOMESTIC QUARANTINE final rule. referred to below as the regulations). NOTICES SUMMARY: We are adopting as a final The regulations restrict the interstate ■ rule, without change, an interim rule movement of regulated articles from and Accordingly, we are adopting as a that amended the regulations governing through areas quarantined because of final rule, without change, the interim the interstate movement of fruit from an citrus canker and provide, among other rule that amended 7 CFR part 301 and area quarantined for citrus canker to things, conditions under which that was published at 73 FR 44615– extend the temporary exception that regulated fruit may be moved into, 44617 on July 31, 2008. allows fruit to be packed for interstate through, and from quarantined areas for Done in Washington, DC, this 8th day of movement in bags that are clearly packing. December 2008. marked with only a limited distribution In an interim rule 1 effective and Kevin Shea, statement, if those bags are then packed published in the Federal Register on Acting Administrator, Animal and Plant in a box that is marked with both the July 31, 2008 (73 FR 44615–44617, Health Inspection Service. limited distribution statement and the Docket No. APHIS–2008–0080), we [FR Doc. E8–29458 Filed 12–11–08; 8:45 am] statement ‘‘Limited Permit: USDA– amended the regulations to extend the BILLING CODE 3410–34–P APHIS–PPQ.’’ The interim rule temporary exception that allows fruit to extended the ending date for this be packed for interstate movement in temporary exemption from August 1, bags that are clearly marked with only DEPARTMENT OF AGRICULTURE 2008, to August 1, 2010. The interim a limited distribution statement, if those rule was necessary to provide for the bags are then packed in a box that is Agricultural Marketing Service continued use of existing inventories of marked with both the limited bags in which regulated fruit are packed distribution statement and the statement 7 CFR Part 920 while maintaining safeguards against ‘‘Limited Permit: USDA–APHIS–PPQ.’’ [Docket No. AMS–FV–08–0095; FV09–920– the movement of regulated fruit to The interim rule extended the ending 1 IFR] commercial citrus-producing States. date for this temporary exemption from DATES: Effective on December 12, 2008, August 1, 2008, to August 1, 2010. The Kiwifruit Grown in California; we are adopting as a final rule the interim rule was necessary to provide Decreased Assessment Rate for the continued use of existing interim rule published at 73 FR 44615– AGENCY: Agricultural Marketing Service, 44617 on July 31, 2008. inventories of bags in which regulated fruit are packed while maintaining USDA. FOR FURTHER INFORMATION CONTACT: Mr. safeguards against the movement of ACTION: Interim final rule with request Stephen Poe, Senior Staff Officer, for comments. Emergency and Domestic Programs, 1 To view the interim rule and the comment we SUMMARY: PPQ, APHIS, 4700 River Road Unit 137, received, go to http://www.regulations.gov/ This rule decreases the Riverdale, MD 20737–1231; 301–734– fdmspublic/component/ assessment rate established for the 8899. main?main=DocketDetail&d=APHIS-2008-0080. Kiwifruit Administrative Committee

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(Committee) for the 2008–09 and Marketing Order Administration provided an action is filed not later than subsequent fiscal periods from $0.045 to Branch, Fruit and Vegetable Programs, 20 days after the date of the entry of the $0.035 per 9-kilo volume-fill container AMS, USDA, 1400 Independence ruling. or equivalent of kiwifruit. The Avenue, SW., STOP 0237, Washington, This rule decreases the assessment Committee locally administers the DC 20250–0237; telephone: (202) 720– rate established for the Committee for marketing order which regulates the 2491, Fax: (202) 720–8938, or E-mail: the 2008–09 and subsequent fiscal handling of kiwifruit grown in [email protected]. periods from $0.045 to $0.035 per 9-kilo California. Assessments upon kiwifruit SUPPLEMENTARY INFORMATION: This rule volume-fill container or equivalent of handlers are used by the Committee to is issued under Marketing Order No. kiwifruit. fund reasonable and necessary expenses 920, as amended (7 CFR part 920), The California kiwifruit marketing of the program. The fiscal period begins regulating the handling of kiwifruit order provides authority for the on August 1 and ends July 31. The grown in California, hereinafter referred Committee, with the approval of USDA, assessment rate will remain in effect to as the ‘‘order.’’ The order is effective to formulate an annual budget of indefinitely unless modified, under the Agricultural Marketing expenses and collect assessments from suspended, or terminated. Agreement Act of 1937, as amended (7 handlers to administer the program. The DATES: Effective December 15, 2008; U.S.C. 601–674), hereinafter referred to members of the Committee are comments received by February 10, as the ‘‘Act.’’ producers of California kiwifruit. They 2009 will be considered prior to The Department of Agriculture are familiar with the Committee’s needs issuance of a final rule. (USDA) is issuing this rule in and the costs for goods and services in ADDRESSES: Interested persons are conformance with Executive Order their local area and are thus in a invited to submit written comments 12866. position to formulate an appropriate concerning this rule. Comments must be This rule has been reviewed under budget and assessment rate. The sent to the Docket Clerk, Marketing Executive Order 12988, Civil Justice assessment rate is formulated and Order Administration Branch, Fruit and Reform. Under the marketing order now discussed in a public meeting. Thus, all Vegetable Programs, AMS, USDA, 1400 in effect, California kiwifruit handlers directly affected persons have an Independence Avenue, SW., STOP are subject to assessments. Funds to opportunity to participate and provide 0237, Washington, DC 20250–0237; Fax: administer the order are derived from input. (202) 720–8938, or Internet: http:// such assessments. It is intended that the For the 2005–06 and subsequent fiscal www.regulations.gov. Comments should assessment rate as issued herein will be periods, the Committee recommended, reference the docket number and the applicable to all assessable kiwifruit and USDA approved, an assessment rate date and page number of this issue of beginning on August 1, 2008, and that would continue in effect from fiscal the Federal Register and will be continue until amended, suspended, or period to fiscal period unless modified, available for public inspection in the terminated. This rule will not preempt suspended, or terminated by USDA Office of the Docket Clerk during regular any State or local laws, regulations, or upon recommendation and information business hours, or can be viewed at: policies, unless they present an submitted by the Committee or other http://www.regulations.gov. All irreconcilable conflict with this rule. comments submitted in response to this The Act provides that administrative information available to USDA. rule will be included in the record and proceedings must be exhausted before The Committee met on October 14, will be made available to the public. parties may file suit in court. Under 2008, and unanimously recommended Please be advised that the identity of the section 608c(15)(A) of the Act, any 2008–09 expenditures of $76,492 and an individuals or entities submitting the handler subject to an order may file assessment rate of $0.035 per 9-kilo comments will be made public on the with USDA a petition stating that the volume-fill container or equivalent of Internet at the address provided above. order, any provision of the order, or any kiwifruit. In comparison, last year’s FOR FURTHER INFORMATION CONTACT: obligation imposed in connection with budgeted expenditures were $99,302. Debbie Wray, Marketing Specialist, or the order is not in accordance with law The assessment rate of $0.035 per 9-kilo Kurt J. Kimmel, Regional Manager, and request a modification of the order volume-fill container or equivalent is California Marketing Field Office, or to be exempted therefrom. Such $0.010 per 9-kilo volume-fill container Marketing Order Administration handler is afforded the opportunity for or equivalent less than the rate currently Branch, Fruit and Vegetable Programs, a hearing on the petition. After the in effect. The decreased assessment rate AMS, USDA, telephone: (559) 487– hearing, USDA would rule on the is primarily due to a decrease in 5901, Fax: (559) 487–5906, or E-mail: petition. The Act provides that the management expenditures for the 2008– [email protected], or district court of the United States in any 09 fiscal year. [email protected]. district in which the handler is an The following table compares major Small businesses may request inhabitant, or has his or her principal budget expenditures recommended by information on complying with this place of business, has jurisdiction to the Committee for the 2007–08 and regulation by contacting Jay Guerber, review USDA’s ruling on the petition, 2008–09 fiscal periods:

Budget expense categories 2007–08 2008–09

Staff Salaries/Management ...... $65,150 $56,700 Financial Management Services ...... 12,000 1,000 Audit Expense ...... 5,000 3,500 Vehicle Maintenance/Insurance ...... 3,180 ...... Travel ...... 3,300 3,500 Office Expenses ...... 2,830 4,500

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The assessment rate recommended by dates and times of Committee meetings of less than $7,000,000, and small the Committee was derived by using the are available from the Committee or agricultural producers are defined as following formula: Anticipated 2008–09 USDA. Committee meetings are open to those having annual receipts of less than expenses ($76,492), minus the the public and interested persons may $750,000. None of the 31 handlers difference between the 2008 beginning express their views at these meetings. subject to regulation have annual reserve ($62,647) and the desired 2009 USDA will evaluate Committee kiwifruit sales of $7,000,000. Dividing ending reserve ($54,311), divided by the recommendations and other available average crop value for 2007–08 reported total estimated 2008–09 shipments information to determine whether by the National Agricultural Statistics (1,944,444 9-kilo volume-fill modification of the assessment rate is Service (NASS) of $22,517,000 by the containers). This formula results in the needed. Further rulemaking will be number of producers (220) yields an assessment rate of $0.035 per 9-kilo undertaken as necessary. The average annual producer revenue volume-fill container or equivalent. As Committee’s 2008–09 budget and those estimate of about $102,350, which is mentioned earlier, kiwifruit shipments for subsequent fiscal periods will be well below the SBA threshold of for the year are estimated at 1,944,444 reviewed and, as appropriate, approved $750,000. Based on the foregoing, it may 9-kilo volume-fill containers which by USDA. be concluded that all kiwifruit handlers should provide $68,056 in assessment and the majority of producers may be Initial Regulatory Flexibility Analysis income. An additional $100 in penalty classified as small entities. and interest income is also anticipated, Pursuant to requirements set forth in This rule decreases the assessment bringing the total projected 2008–09 the Regulatory Flexibility Act (RFA), the rate established for the Committee and revenue to $68,156. Income generated Agricultural Marketing Service (AMS) collected from handlers for the 2008–09 through this rate, plus interest income has considered the economic impact of and subsequent fiscal periods from and reserve funds, will provide this rule on small entities. Accordingly, $0.045 to $0.035 per 9-kilo volume-fill sufficient funds to meet the anticipated AMS has prepared this initial regulatory container or equivalent of kiwifruit. The expenses of $76,492 and should result flexibility analysis. Committee unanimously recommended in a July 2009 ending reserve of $54,311 The purpose of the RFA is to fit 2008–09 expenditures of $76,492 and an which is within the maximum reserve of regulatory actions to the scale of assessment rate of $0.035 per 9-kilo approximately one fiscal year’s business subject to such actions in order volume-fill container or equivalent of expenses permitted by the order that small businesses will not be unduly kiwifruit. The assessment rate of $0.035 (§ 920.42). or disproportionately burdened. is $0.010 lower than the 2007–08 rate. The assessment rate established in Marketing orders issued pursuant to the The quantity of assessable kiwifruit for this rule will continue in effect Act, and the rules issued thereunder, are the 2008–09 fiscal period is estimated at indefinitely unless modified, unique in that they are brought about 1,944,444 9-kilo volume-fill containers suspended, or terminated by USDA through group action of essentially or equivalent of kiwifruit. Thus, the rate upon recommendation and information small entities acting on their own should provide $68,056 in assessment submitted by the Committee or other behalf. income. Income derived from handler available information. There are approximately 31 handlers assessments, along with penalty and Although this assessment rate is of California kiwifruit subject to interest income and funds from the effective for an indefinite period, the regulation under the marketing order Committee’s authorized reserve, will be Committee will continue to meet prior and approximately 220 growers in the adequate to cover budgeted expenses. to or during each fiscal period to production area. Small agricultural The following table compares major recommend a budget of expenses and service firms are defined by the Small budget expenditures recommended by consider recommendations for Business Administration (SBA) (13 CFR the Committee for the 2007–08 and modification of the assessment rate. The 121.201) as those having annual receipts 2008–09 fiscal years:

Budget expense categories 2007–08 2008–09

Staff Salaries/Management ...... $65,150 $56,700 Financial Management Services ...... 12,000 1,000 Audit Expense ...... 5,000 3,500 Vehicle Maintenance/Insurance ...... 3,180 ...... Travel ...... 3,300 3,500 Office Expenses ...... 2,830 4,500

The Committee reviewed and the 2008 beginning reserve ($62,647) total projected 2008–09 revenue to unanimously recommended 2008–09 and the desired 2009 ending reserve $68,156. Income generated through this expenditures of $76,492 which included ($54,311), divided by the total estimated rate, plus interest income and reserve a reduction in management expenses. 2008–09 shipments (1,944,444 9-kilo funds, will provide sufficient funds to Prior to arriving at this budget, the volume-fill containers). This formula meet the anticipated expenses of Committee considered alternative results in the assessment rate of $0.035 $76,492 and should result in a July 2009 expenditure levels, but ultimately per 9-kilo volume-fill container or ending reserve of $54,311 which is decided that the recommended levels equivalent. As mentioned earlier, within the maximum reserve of were reasonable to properly administer kiwifruit shipments for the year are approximately one fiscal year’s the order. The assessment rate estimated at 1,944,444 9-kilo volume-fill expenses permitted by the order recommended by the Committee was containers which should provide (§ 920.42). derived by using the following formula: $68,056 in assessment income. An According to NASS, the season Anticipated 2008–09 expenses additional $100 in penalty and interest average grower price for years 2006 and ($76,492), minus the difference between income is also anticipated, bringing the 2007 were $911 and $950 per ton,

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respectively. These prices provide a OrdersSmallBusinessGuide. Any Dated: December 8, 2008. range within which the 2008–09 season questions about the compliance guide James E. Link, average grower price could fall. should be sent to Jay Guerber at the Administrator, Agricultural Marketing Dividing these average grower prices by previously mentioned address in the Service. 2,000 pounds per ton provides a price FOR FURTHER INFORMATION CONTACT [FR Doc. E8–29573 Filed 12–10–08; 4:15 pm] per pound range of $0.46 to $0.48. section. BILLING CODE 3410–02–P Multiplying these per-pound prices by After consideration of all relevant 19.8 pounds (the weight of a 9-kilo material presented, including the volume-fill container) yields a 2008–09 Committee’s recommendation and other DEPARTMENT OF HOMELAND price range estimate of $9.11 to $9.50 available information, it is found that SECURITY per 9-kilo volume-fill container of this interim final rule, as hereinafter set assessable kiwifruit. forth, will tend to effectuate the 8 CFR Parts 103, 212, 214, 245 and 299 To calculate the percentage of grower declared policy of the Act. revenue represented by the assessment [CIS No. 2134–01; DHS Docket No. USCIS– rate, the assessment rate of $0.035 per Pursuant to 5 U.S.C. 553, it is also 2006–0067] 9-kilo volume-fill container is divided found and determined upon good cause RIN 1615–AA60 by the low and high estimates of the that it is impracticable, unnecessary, and contrary to the public interest to price range. The estimated assessment Adjustment of Status to Lawful revenue for the 2008–09 fiscal year as a give preliminary notice prior to putting this rule into effect and that good cause Permanent Resident for Aliens in T or percentage of total grower revenue U Nonimmigrant Status would thus likely range between 0.368 exists for not postponing the effective and 0.384 percent. date of this rule until 30 days after AGENCY: U.S. Citizenship and This action decreases the assessment publication in the Federal Register Immigration Services, DHS. because: (1) This rule should be in place obligation imposed on handlers. ACTION: Interim final rule with request as soon as possible because the 2008–09 Assessments are applied uniformly on for comments. all handlers, and some of the costs may fiscal year began on August 1, 2008, be passed on to producers. However, handlers began shipping kiwifruit in SUMMARY: The Department of Homeland decreasing the assessment rate reduces mid-September, and the order requires Security is amending its regulations to the burden on handlers and may reduce that the rate of assessment for each permit aliens in lawful T or U the burden on producers. In addition, fiscal period apply to all assessable nonimmigrant status to apply for the Committee’s meeting was widely kiwifruit handled during the period; (2) adjustment of status to lawful publicized throughout the California the Committee unanimously permanent resident. T nonimmigrant kiwifruit industry and all interested recommended this change at a public status is available to aliens who are persons were invited to attend the meeting and all interested parties had victims of a severe form of trafficking in meeting and participate in Committee an opportunity to provide input; (3) this persons and who are assisting law deliberations on all issues. Like all rule relaxes requirements currently in enforcement in the investigation or Committee meetings, the October 14, effect and kiwifruit producers and prosecution of the acts of trafficking. U 2008, meeting was a public meeting and handlers are aware of this rule and need nonimmigrant status is available to all entities, both large and small, were no additional time to comply with the aliens who are victims of certain crimes able to express views on this issue. relaxed requirements; and (4) this rule and are being helpful to the Finally, interested persons are invited to provides a 60-day comment period and investigation or prosecution of those submit information on the regulatory any comments received will be crimes. This rule provides that family and informational impacts of this action considered prior to finalization of this members of a principal T or U on small businesses. rule. nonimmigrant granted or seeking This action imposes no additional List of Subjects in 7 CFR Part 920 adjustment of status may also apply for reporting or recordkeeping requirements adjustment of status to lawful on either small or large California Kiwifruit, Marketing agreements, permanent resident. This rule also kiwifruit handlers. As with all Federal Reporting and recordkeeping provides for adjustment of status or marketing order programs, reports and requirements. approval of an immigrant petition for forms are periodically reviewed to ■ For the reasons set forth in the certain family members of U applicants reduce information requirements and preamble, 7 CFR part 920 is amended as who were never admitted to the United duplication by industry and public follows: States in U nonimmigrant status. sector agencies. DATES: Effective date: This interim rule AMS is committed to complying with PART 920—KIWIFRUIT GROWN IN is effective January 12, 2009. the E-Government Act, to promote the CALIFORNIA Comment date: Written comments use of the Internet and other must be submitted on or before February information technologies to provide ■ 1. The authority citation for 7 CFR 10, 2009 in order to be assured of increased opportunities for citizen part 920 continues to read as follows: consideration. access to Government information and Authority: 7 U.S.C. 601–674. services, and for other purposes. ADDRESSES: You may submit comments, USDA has not identified any relevant ■ 2. Section 920.213 is revised to read identified by DHS Docket No. USCIS– Federal rules that duplicate, overlap, or as follows: 2006–0067, by any of the following conflict with this rule. methods: A small business guide on complying § 920.213 Assessment rate. • Federal eRulemaking Portal: http:// with fruit, vegetable, and specialty crop On and after August 1, 2008, an www.regulations.gov. Follow the marketing agreements and orders may assessment rate of $0.035 per 9-kilo instructions for submitting comments. be viewed at: http://www.ams.usda.gov/ volume-fill container or equivalent of • Mail: Chief, Regulatory AMSv1.0/ams.fetchTemplateData.do? kiwifruit is established for kiwifruit Management Division, U.S. Citizenship template=TemplateN&page=Marketing grown in California. and Immigration Services, Department

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of Homeland Security, 111 Aliens who are victims of a severe time of application. New 8 CFR Massachusetts Avenue, NW., 3rd Floor, form of trafficking in persons and who 245.23(a)(2); 245.23(b)(2). Washington, DC 20529. To ensure have complied with any reasonable 2. Physical Presence for Requisite proper handling, please reference DHS requests for assistance in the Federal, Period Docket No. USCIS–2006–0067 on your State, or local investigation or correspondence. This mailing address prosecution of acts of trafficking, or the T–1 nonimmigrant applicants for may also be used for paper, disk, or CD– investigation of a crime where acts of adjustment of status under section ROM submissions. trafficking are at least one central reason 245(l) of the Act must have been • Hand Delivery/Courier: U.S. for the commission of that crime, may physically present in the United States Citizenship and Immigration Services, be admitted to the United States under for either: (1) A continuous period of at Department of Homeland Security, 111 a ‘‘T’’ nonimmigrant classification or ‘‘T least 3 years since the date of admission Massachusetts Avenue, NW., 3rd Floor, visa.’’ See Immigration and Nationality as a T–1 nonimmigrant; or (2) a Washington, DC 20529. Contact Act of 1952, as amended (INA or Act), continuous period during the Telephone Number (202) 272–8377. sections 101(a)(15)(T) and 214(o), 8 investigation or prosecution of the acts FOR FURTHER INFORMATION CONTACT: U.S.C. 1101(a)(15)(T) and 1184(o). The of trafficking, provided that the Laura Dawkins, Office of Policy and Department of Justice (DOJ), through the Attorney General has determined the Strategy, U.S. Citizenship and former Immigration and Naturalization investigation or prosecution is Immigration Services, Department of Service (INS), published regulations complete, whichever period is less. New Homeland Security, 20 Massachusetts implementing the ‘‘T’’ nonimmigrant 8 CFR 245.23(a)(3); see INA sec. Avenue, NW., Second Floor, provisions in 2002. 67 FR 4784 (Jan. 31, 245(l)(1)(A); 8 U.S.C. 1255(l)(1)(A). With Washington, DC 20529, telephone (202) 2002). Those regulations became respect to the requisite continuous 272–8350. effective on March 4, 2002. physical presence period, this rule SUPPLEMENTARY INFORMATION: provides that an applicant’s date of Aliens who are victims of specified admission as a T–1 nonimmigrant is the I. Public Participation criminal activity, including trafficking, date that the applicant was first who assist government officials in Interested persons are invited to admitted as a T–1 nonimmigrant. New investigating or prosecuting those participate in this rulemaking by 8 CFR 245.23(a)(3). For example, if the crimes may be admitted to the United submitting written data, views, or applicant traveled outside the United States under a ‘‘U’’ nonimmigrant arguments on all aspects of this rule. States after being admitted as a T–1 classification or ‘‘U visa.’’ See INA Comments that will provide the most nonimmigrant and reentered using an sections 101(a)(15)(U) and 214(p); 8 assistance to U.S. Citizenship and advance parole document issued under U.S.C. 1101(a)(15)(U) and 1184(p). DHS Immigration Services in developing 8 CFR 245.2(a)(4)(ii)(B), the date that the published regulations implementing the these procedures will refer to a specific applicant was first admitted as a T–1 provisions creating the U nonimmigrant portion of the rule, suggest changes to nonimmigrant will be the date of classification on September 17, 2007. 72 the regulation text, discuss the reason admission used by USCIS for for the recommended change, and FR 53014. The ‘‘U’’ regulations became determining whether the applicant has include data, information, or authority effective October 17, 2007. satisfied the physical presence that support the recommended change. This interim final rule implements the requirement, regardless of how the Instructions: All submissions received provisions of the Act permitting T and applicant’s Form I–94 ‘‘Arrival- should include the agency name and U nonimmigrant aliens to apply for an Departure Record’’ is annotated upon Docket No. USCIS–2006–0067 for this adjustment status to that of lawful his or her reentry (e.g., as ‘‘T rulemaking. All comments received will permanent resident. See INA sections nonimmigrant’’ or ‘‘parolee’’). New 8 be posted without change to http:// 245(l), (m); 8 U.S.C. 1255(l), (m). This CFR 245.23(a)(3); 245.23(e)(2)(i). www.regulations.gov, including e-mail rule implements the eligibility and However, this rule also provides that addresses and any other personal application requirements for such aliens an applicant who travels outside of the information provided. to seek adjustment of status to lawful United States for a single period in Docket: For access to the docket to permanent resident. excess of 90 days or 180 days in the read background documents or aggregate will not maintain the comments received, go to http:// III. Aliens in T Nonimmigrant Status continuous physical presence required www.regulations.gov. Submitted Seeking Adjustment of Status Under to establish eligibility for adjustment. l comments may also be inspected at the Section 245( ) of the Act New 8 CFR 245.23(a)(3); see INA sec. Regulatory Management Division, U.S. A. Eligibility Requirements for T 245(l)(3), 8 U.S.C. 1255(l)(3). Unlike for Citizenship and Immigration Services, Nonimmigrants Seeking Adjustment of U–1 nonimmigrants, the Act does not Department of Homeland Security, 111 Status permit T–1 nonimmigrants to exceed Massachusetts Avenue, NW., 3rd Floor, the 90-day or 180-day limitation to Washington, DC 20529 during normal This rule promulgates a new 8 CFR assist in an investigation or prosecution business hours by contacting the 245.23 to list the eligibility or pursuant to an official certification information contact listed above. requirements for adjustment of status for justifying the excessive absence. T–1 nonimmigrants and their family Compare INA sec. 245(l)(3), 8 U.S.C. II. Background and Legislative members in lawful T–2, T–3, T–4, and 1255(l)(3), with INA sec. 245(m)(2), 8 Authority T–5 status under section 245(l) of the U.S.C. 1255(m)(2). This rule implements the Victims of Act, 8 U.S.C. 1255(l). 3. Admissible at Time of Adjustment Trafficking and Violence Protection Act 1. Admitted as a T Nonimmigrant of 2000 (VTVPA), Public Law No. 106– All applicants for adjustment of status 386, 114 Stat. 1464 (Oct. 28, 2000), as All applicants for adjustment of status under section 245(l) of the Act must be amended, to permit aliens in lawful T under section 245(l) of the Act must admissible to the United States under or U nonimmigrant status to apply for have been lawfully admitted to the the Act, or otherwise have been granted adjustment of status to lawful United States as a T nonimmigrant and a waiver by USCIS of any applicable permanent resident. must continue to hold such status at the ground of inadmissibility, at the time of

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examination for adjustment. New 8 CFR 101(f)(3) of the Act from establishing defined in 8 CFR 214.11(a), by 245.23(a)(4), 245.23(b)(4), 245.23(c)(2) that he or she is a person of good moral submitting a document issued by the and (3); see INA sec. 245(l)(2), 8 U.S.C. character. If, on the other hand, the Attorney General or his designee 1255(l)(2); INA sec. 212(a), 8 U.S.C. applicant engaged in prostitution or certifying that he or she has complied 1182(a) (listing grounds of commercialized vice before he or she with any reasonable requests for inadmissibility and available waivers). was first lawfully admitted as a T–1 assistance (new 8 CFR 245.23(d), nonimmigrant (which in many cases 245.23(f)(1)), or (ii) that they would 4. Good Moral Character will be related to the trafficking of that suffer extreme hardship involving T–1 nonimmigrant applicants for individual), USCIS will not consider the unusual and severe harm upon removal adjustment of status under section applicant to be statutorily precluded from the United States (new 8 CFR 245(l) of the Act must establish that they under section 101(f)(3) of the Act from 245.23(d), 245.23(f)(2)).1 See INA sec. have been persons of good moral establishing that he or she is a person 245(l)(1)(C), 8 U.S.C. 1255(l)(1)(C). character since first being lawfully of good moral character because the Although the T nonimmigrant admitted as a T–1 nonimmigrant and applicant’s activities did not occur provisions at section 101(a)(15)(T) of the until USCIS completes the adjudication during the period for which good moral Act, 8 U.S.C. 1101(a)(15)(T), exempt of their applications for adjustment of character is required to be established children under the age of 18 from the status. New 8 CFR 245.23(a)(5); see INA for purposes of section 245(l) of the Act. requirement to comply with reasonable sec. 245(l)(1)(B), 8 U.S.C. 1255(l)(1)(B). This interpretation is consistent with requests for assistance, no similar age- However, section 101(f) of the Act, 8 the primary goal of the statute, which is related exemption is included in the U.S.C. 1101(f), precludes establishment to provide humanitarian assistance to adjustment provisions contained in of good moral character if, ‘‘during the victims who are assisting law section 245(l) of the Act, 8 U.S.C. period for which good moral character enforcement in the investigation or 1255(l). Accordingly, this rule provides is required to be established,’’ an prosecution of their traffickers. In that to establish eligibility for applicant falls into certain enumerated construing the interplay between the adjustment of status, T–1 principal categories. The list of enumerated relevant statutory provisions, the proper applicants under the age of 18 must categories, however, is not exclusive. course is to adopt that sense of words either show that they have, since being Section 101(f) of the Act also provides which best harmonizes with the context, lawfully admitted as a T nonimmigrant, that persons who do not fall within any and then promotes in the fullest manner complied with any reasonable request of the enumerated categories may also the policy and objects of Congress. for assistance in the investigation or be found to lack good moral character. United States v. Hartwell, 73 U.S. (6 prosecution of the acts of trafficking, or Section 101(f)(3) of the Act Wall.) 385, 396 (1868); see generally 2A meet the alternative ‘‘extreme hardship’’ specifically bars aliens who have C. Sands, Sutherland on Statutory requirement of section 245(l)(1)(C)(ii) of engaged in prostitution or Construction sec. 46.05 (rev. 7th ed. the Act. New 8 CFR 245.23(a)(6)(ii). commercialized vice (described in 2008). For example, in cases in which When evaluating the reasonableness of section 212(a)(2)(D) of the Act, 8 U.S.C. an applicant was forced into sexual a request for assistance made to a minor 1182(a)(2)(D)), from establishing good slavery or prostitution prior to being since admission as a T nonimmigrant, moral character ‘‘during the period for granted T–1 nonimmigrant status, it USCIS will consider the previous which good moral character is required would be contrary to the purpose of the application of the exemption at section to be established.’’ Id. The period for statute to prevent the applicant from 101(a)(15)(T)(i)(III)(bb) of the Act. which good moral character must be showing good moral character for established under section 212(a)(2)(D) of purposes of adjusting status to lawful 6. Extreme Hardship Involving Unusual the Act is 10 years from the date of permanent resident because he or she and Severe Harm application, but the period for which had engaged in prostitution within 10 As noted above, section 245(l)(1)(C) of good moral character must be years of the date of the application for the Act, 8 U.S.C. 1255(l)(1)(C), permits established under section 245(l) of the adjustment of status, but before he or T–1 applicants for adjustment of status Act is a continuous period of at least 3 she was granted T–1 nonimmigrant the alternative of establishing they years since the date of admission or status. would suffer extreme hardship during the period of investigation or An applicant who is under 14 years involving unusual and severe harm prosecution of the acts of trafficking, of age is generally presumed to be a upon removal, in lieu of establishing whichever period of time is less. The person of good moral character and is assistance in the investigation or interplay of these provisions creates not required to submit evidence of good prosecution. This rule utilizes existing ambiguity and requires interpretation. moral character. However, if there is extreme hardship standards set forth at After considering the necessary reason to believe that an applicant who 8 CFR 214.11(i), which were established interplay between section 101(f)(3) of is under 14 years of age may lack good in the January 31, 2002, interim T the Act, the 10-year temporal scope of moral character, USCIS may require nonimmigrant status rule. New 8 CFR section 212(a)(2)(D) of the Act, and the evidence of good moral character. New 245.23(a)(6)(ii), 245.23(f)(2). These more limited period during which good 8 CFR 245.23(g)(4). standards provide that extreme hardship moral character must be shown for involving unusual and severe harm may purposes of adjustment of status under 5. Assistance in the Investigation or Prosecution not be based upon current or future section 245(l) of the Act, USCIS economic detriment, or the lack of or believes, based on the purpose and T–1 nonimmigrant applicants for disruption to social or economic history of the statute, that the more adjustment of status under section limited period is applicable. For 245(l) of the Act must establish either (i) 1 Section 245(l)(1)(C)(i) of the Act requires the example, if an applicant engaged in that during the requisite period of Attorney General to determine whether T–1 prostitution or commercialized vice continuous physical presence they have nonimmigrant applicants have complied with any after he or she was first lawfully complied with any reasonable request reasonable request for assistance in the investigation or prosecution of acts of trafficking. admitted as a T–1 nonimmigrant, USCIS for assistance in an ongoing Federal, This rule does not address the Attorney General’s will consider the applicant to be State, or local investigation or authority to adjust status under section statutorily precluded under section prosecution of the acts of trafficking, as 245(l)(1)(C)(i) of the Act.

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opportunities. Both traditional extreme certifies that the presence of the alien in submit all required ‘‘initial evidence’’ or hardship factors and factors associated the United States is necessary to assist supporting documentation with the with having been a victim of a severe in the investigation or prosecution of Form I–485. 8 CFR 103.2(b)(1). form of trafficking in persons may be such activity. New 8 CFR 214.11(p)(1); Otherwise, USCIS will deem the considered. Factors such as serious see INA sec. 214(o)(7)(B), 8 U.S.C. application to be incomplete. If all physical or mental illness of the 1184(o)(7)(B). required initial evidence is not applicant that necessitates medical or In 2006, Congress altered several key submitted with the application or the psychological attention not reasonably aspects of the T nonimmigrant evidence does not demonstrate statutory available in the foreign country, the provisions and the related adjustment of eligibility, USCIS may deny the nature and extent of the physical and status requirements, necessitating application for lack of initial evidence, psychological consequences of severe changes to 8 CFR 214.11(p). Congress for ineligibility, or for both reasons. In forms of trafficking in persons, and the extended the duration of status for a T the alternative, USCIS may request that likelihood that the trafficker or another nonimmigrant from 3 to 4 years and the missing initial evidence be acting on behalf of the trafficker in the made T nonimmigrant status renewable submitted within a specified period of foreign country would severely harm beyond the 4-year maximum duration time. 8 CFR 103.2(b)(8). the applicant may be relevant to such a based on a certification of law a. Evidence That Applicant Was determination. enforcement necessity. Public Law No. 109–162, sec. 821(a), 119 Stat. 2960 (Jan. Admitted in T Nonimmigrant Status B. Application Procedures for T 5, 2006) (amending INA sec. 214(o)(7), All applicants must submit a copy of Nonimmigrants Seeking Adjustment of 8 U.S.C. 1184(o)(7)). Without such the Form I–797, Notice of Action, Status renewal, however, the statute is clear granting T nonimmigrant status, with This rule clarifies that the generally that T nonimmigrant status may not the attached Form I–94 Arrival/ applicable adjustment of status extend beyond 4 years even if the Departure Record, or a copy of the provisions in 8 CFR 245.1 and 245.2 do individual has properly applied for applicant’s passport with a T not apply to applications for adjustment adjustment of status. nonimmigrant visa along with a copy of of status under the new 8 CFR 245.23. This rule provides a transition rule for the Form I–94 Arrival/Departure Record The adjustment provisions contained in those T nonimmigrants who accrued 4 evidencing that the principal alien was section 245(l) of the Act, 8 U.S.C. years in status prior to promulgation of admitted into the United States in T 1255(l), are stand-alone provisions and this rule. Section 214(o)(7) of the Act, 8 nonimmigrant status. New 8 CFR not simply a variation on the general U.S.C. 1184(o)(7), prescribes a 245.23(e)(2)(i). maximum duration in T nonimmigrant adjustment rules contained in section b. Evidence of Continuous Physical 245(a) of the Act, 8 U.S.C. 1255(a). New status of 4 years, unless the T Presence 8 CFR 245.23(k). nonimmigrant receives a law enforcement certification stating that the T–1 nonimmigrant applicants may 1. Filing the Application To Request T nonimmigrant’s presence is necessary present as evidence of continuity of Adjustment of Status to assist in the investigation or physical presence in the United States This rule requires that each applicant prosecution. Therefore, T one or more documents issued by any for adjustment of status under section nonimmigrants who already accrued 4 governmental or nongovernmental 245(l) of the Act, 8 U.S.C. 1255(l), years in status might not continue to authority, provided such evidence bears submit a complete application to USCIS: hold such status at the time of the name of the applicant, was dated at Form I–485, Application to Register application for adjustment of status and the time it was issued, and bears the Permanent Residence or Adjust Status, would otherwise be ineligible for signature, seal, or other authenticating filed in accordance with the form adjustment of status. USCIS is therefore instrument of the authorized instructions; applicable fees or creating a transition rule to allow these representative of the issuing authority if application for a fee waiver; and any aliens, if otherwise eligible, to adjust the document would normally contain additional evidence to fully support the status if they file a complete application such indicia. New 8 CFR 245.23(e)(2)(i). application. New 8 CFR 245.23(a)(1), within 90 days of promulgation of this An applicant may use college 245.23(b)(3), 245.23(e). Derivative T rule. New 8 CFR 245.23(a)(2)(ii). transcripts or employment records, nonimmigrants may not submit an Congress also allowed certain including certification of the filing of application for adjustment of status applicants to apply for adjustment of Federal or state income tax returns, to before the principal T–1 alien files an status before having accrued 3 years of show that an applicant attended school application for adjustment of status. continuous physical presence in valid T or worked in the United States New 8 CFR 245.23(b)(1). nonimmigrant status. Public Law No. throughout the requisite continuous physical presence period. The applicant 2. Timely Filing 109–162, sec. 803(a)(1)(B) (amending INA sec. 245(l)(1)(A), 8 U.S.C. may also present documents showing Aliens who properly apply for 1255(l)(1)(A)). This rule revises 8 CFR installment periods, such as a series of adjustment of status in accordance with 214.11(p)(2) to implement the statutory monthly rent receipts or utility bills that 8 CFR 245.23 shall remain eligible for changes. cover the same period, to establish adjustment of status. New 8 CFR Applicants for adjustment of status continuous physical presence during 214.11(p)(2). T nonimmigrants who fail under section 245(l) of the Act may that period. See generally 8 CFR 245.22. to apply for adjustment of status during submit an application for employment An applicant need not submit the prescribed period will lose T authorization (Form I–765, Application documentation to show presence on nonimmigrant status at the end of the 4- for Employment Authorization, in every single day of the requisite year period unless that status is accordance with the form instructions) continuous physical presence period, extended beyond 4 years because a on the basis of 8 CFR 274a.12(c)(9). but there should be no significant Federal, State, or local law enforcement chronological gaps in documentation. official, prosecutor, judge, or other 3. Initial Evidence Any absence from the United States, authority investigating or prosecuting All applicants for adjustment of status even for one day, is significant for activity relating to human trafficking under section 245(l) of the Act must purposes of eligibility because of the

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aggregate 180-day restriction on purpose and that a fee is charged for evidence of the likelihood the applicant absences from the United States. waiver of any ground of inadmissibility. will become a public charge. Furthermore, if an applicant is aware 8 CFR 103.7(b)(1). USCIS also may waive any other of documents already contained in his Applicants who are inadmissible on ground of inadmissibility, but only if or her DHS file that establish physical security related grounds (INA sec. USCIS determines that a waiver is in the presence, he or she may merely list 212(a)(3), 8 U.S.C. 1182(a)(3)), as national interest and that the activities those documents, giving the type and international child abductors (INA sec. rendering the applicant inadmissible date of the document. Examples of such 212(a)(10)(C), 8 U.S.C. 1182(a)(10)(C)), were caused by or were incident to the documents include a written copy of a or as former citizens who renounced principal alien’s trafficking sworn statement given to a DHS officer, citizenship to avoid taxation (INA sec. victimization. See INA sec. 245(l)(2)(B). a document from the law enforcement 212(a)(10)(E), 8 U.S.C. 1182(a)(10)(E)), Applicants seeking such a waiver must agency attesting to the fact that the T– are not eligible for waivers of establish that the activities rendering 1 nonimmigrant status holder has inadmissibility under section 245(l)(2) the applicants inadmissible were caused continued to comply with requests for of the Act. New 8 CFR 245.23(c)(1); see by or incident to their trafficking assistance, the transcript of a formal INA sec. 245(l)(2)(B), 8 U.S.C. victimization, that it is in the national hearing, or a Record of Deportable/ 1255(l)(2)(B). interest to waive the ground(s) of Inadmissible Alien, Form I–213. USCIS may waive the health-related inadmissibility, and that the waiver is To facilitate USCIS’ evaluation of an (INA sec. 212(a)(1), 8 U.S.C. 1182(a)(1)) warranted as a matter of discretion. New applicant’s physical presence in the and public charge (INA sec. 212(a)(4), 8 8 CFR 212.18(b)(3). United States, this rule provides that an U.S.C. 1182(a)(4)) grounds of Under section 212(a)(9)(B)(iii) of the applicant must submit a copy of his or inadmissibility if USCIS determines that Act, 8 U.S.C. 1182(a)(9), applicants may her passport (or equivalent travel a waiver is in the national interest as a be exempted from the unlawful document) and documentation matter of discretion. See INA sec. presence ground of inadmissibility if regarding any departure from the United 245(l)(2)(A). USCIS understands the they can establish that their States and re-entry, including the dates waiver of the public charge ground in victimization was ‘‘at least one central of departure; time, manner, and place of light of two other provisions of law, reason’’ for their unlawful presence in return. New 8 CFR 245.23(e)(2)(i). Pub. L. 106–386, sections 107(b)(1)(A) the United States. See INA sec. A signed statement from the T–1 and (E), 114 Stat. 1464 (Oct. 28, 2000), 212(a)(9)(B)(iii)(V), 8 U.S.C. applicant attesting to continuous which provide that victims of a severe 1182(a)(9)(B)(iii)(V). This rule clarifies physical presence alone will not be form of trafficking in persons who are that to be a ‘‘central reason,’’ the sufficient to establish this eligibility over 18 years of age may be certified by victimization need not be the sole requirement. New 8 CFR 245.23(e)(2)(i). the Secretary of Health and Human reason for the unlawful presence, but If documentation to establish Services (HHS) to receive certain the nexus between the victimization and continuous physical presence is not benefits and services ‘‘to the same the unlawful presence must be more available, the applicant must explain extent as an alien who is admitted to the than tangential, incidental, or why in an affidavit and provide United States as a refugee.’’ Victims of superficial. New 8 CFR 245.23(c)(3); cf. additional affidavits from others with a severe form of trafficking in persons Matter of J-B-N- & S-M-, 24 I&N 208, 214 first-hand knowledge who can attest to who are under 18 are also eligible for (BIA 2007) (interpreting the ‘‘one central the applicant’s continuous physical services, including cash assistance, to reason’’ standard in the asylum context). presence by specific facts. Id. the same extent as refugees, but they do An applicant requesting only an This rule further provides that not need to be certified by HHS. exemption from section applicants seeking to meet the Refugees are provided with special 212(a)(9)(B)(B)(iii)(V) of the Act need alternative continuous physical humanitarian benefits because of their not file a Form I–601. New 8 CFR presence requirement at section vulnerable circumstances, and are 245.23(c)(3). The applicant, however, 245(l)(1)(A) of the Act (less than 3 years exempt from virtually every aspect of must submit with his or her Form I–485 of continuous physical presence while the public charge determination. evidence sufficient to demonstrate that in T–1 nonimmigrant status if the Congress has recognized that victims of the victimization suffered was a central investigation or prosecution is a severe form of trafficking in persons reason for the unlawful presence in the complete) must submit a document are in much the same position as United States. Id. signed by the Attorney General, or his refugees, and therefore provided As discussed below, applicants whose designee, as an attachment to the Form specific authority for DHS to exempt adjustment of status applications are I–485, Supplement E, stating that the them from the public charge ground of denied, including the denial of a request investigation or prosecution is inadmissibility when applying for T for exemption from the application of complete. New 8 CFR 245.23(e)(2)(i)(B). nonimmigrant status. See INA sec. section 212(a)(9)(B) of the Act, and the 212(d)(13)(A); 8 U.S.C. 1182(d)(13)(A). c. Evidence of Admissibility denial of an application for a waiver of However, this statutory exemption does inadmissibility (Form I–601) may Applicants who are inadmissible by not apply to adjustment of status. appeal to the USCIS Administrative reason of a ground not waived in Consequently, at that stage, applicants Appeals Office (AAO). New 8 CFR connection with the prior application must either demonstrate that they are 245.23(i). for T nonimmigrant status must file an not likely to become public charges This rule also clarifies that USCIS application for a waiver of under section 212(a)(4) of the Act, 8 may revoke its approval of a waiver of inadmissibility under section 245(l)(2) U.S.C. 1182(a)(4), or must apply for a inadmissibility. New 8 CFR 212.18(d); of the Act (Form I–601, Application for waiver of that ground of inadmissibility see also 8 CFR 103.5. Waiver of Grounds of Excludability) under section 245(l)(2)(A) of the Act, 8 with the application to adjust status. U.S.C. 1255(l)(2)(A). In evaluating d. Evidence of Good Moral Character New 8 CFR 212.18(a). A separate fee for waiver requests, if an applicant is Initial evidence of a T–1 Form I–601 or a fee waiver request must receiving or has received public benefits nonimmigrant applicant’s good moral be remitted with the form. This rule as a trafficking victim, USCIS will not character is the applicant’s affidavit clarifies that Form I–601 is used for this consider that fact as conclusive attesting to his or her good moral

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character, accompanied by a local police 4. Additional Requirements for of an applicant’s adverse factors, the clearance or a state-issued criminal Derivative Family Members applicant may be required to clearly background check from each locality or Derivative family members may apply demonstrate that the denial of state in the United States in which the for adjustment of status under section adjustment of status would result in applicant has resided for six or more 245(l)(1) provided the T–1 principal exceptional and extremely unusual months during the requisite period in applicant meets the eligibility hardship. Moreover, depending on the T–1 nonimmigrant status. New 8 CFR requirements for adjustment of status gravity of the alien’s adverse factors, 245.23(g). If police clearances, criminal and the T–1 principal applicant’s such a showing might still be background checks, or similar reports adjustment application has been insufficient. Id. See Matter of Jean, 23 I&N Dec. 373, 383–384 (A.G. 2002), aff’d are not available for some or all approved, is currently pending, or is locations, the applicant may include an Jean v. Gonzales, 452 F.3d 392 (5th Cir. concurrently filed. New 8 CFR explanation and submit other evidence 2006). See also Pinentel v. Mukasey, 530 245.23(b). F.3d 321 (5th Cir. 2008); Meija v. with his or her affidavit. Id. As with T–1 principal applicants, to A T–1 nonimmigrant applicant who is Gonzales, 499 F.3d 991 (9th Cir. 2007). be eligible for adjustment of status under 14 years of age is generally For example, only the most compelling under section 245(l) of the Act, presumed to be a person of good moral positive factors would justify a favorable derivative family members must be character and is not required to submit exercise of discretion in cases where the admissible to the United States under evidence of good moral character. applicant has committed or been the Act, or otherwise have been granted However, if USCIS has reason to believe convicted of a serious violent crime, a a waiver by USCIS of any applicable that an applicant who is under 14 years crime involving sexual abuse committed ground of inadmissibility, at the time of of age may lack good moral character, upon a child, or multiple drug-related examination for adjustment. New 8 CFR USCIS may require evidence of good crimes, or where there are security- or moral character. Id. 245.23(a)(4), 245.23(b)(4), 245.23(c)(2) terrorism-related concerns. Id. and (3); see INA sec. 245(l)(2), 8 U.S.C. e. Evidence of Assistance in the 1255(l)(2); INA sec. 212(a), 8 U.S.C. 6. Application and Biometric Services Investigation or Prosecution 1182(a). Section 245(l)(2)(B) of the Act Fees To meet the ‘‘assistance’’ requirement, also permits USCIS to waive any ground The fee for filing an Application to T–1 applicants must submit a document of inadmissibility that may be Register Permanent Residence or Adjust signed by the Attorney General or his applicable to a derivative family Status (Form I–485) is listed at 8 CFR designee certifying that he or she has member, except for the grounds related 103.7(b). USCIS recognizes that some complied with any reasonable requests to national security, international child applicants for adjustment of status for assistance. New 8 CFR 245.23(d), abduction, and former citizens who under section 245(l) of the Act may be 245(f)(1). renounced citizenship to avoid taxation. unable to pay the full application fee. Such a waiver may be granted if USCIS Applicants who are able to show that f. Evidence of Extreme Hardship determines that it is in the national Involving Unusual and Severe Harm they are financially unable to pay the interest to do so and that the activities application fee may submit an In lieu of showing continued rendering the derivative family member application for a fee waiver as outlined compliance with requests for assistance, inadmissible were caused by or were in 8 CFR 103.7(c). This rule also permits T–1 applicants may establish that they incident to the T–1 principal alien’s a fee waiver for the Form I–601 fee. The would suffer extreme hardship victimization. See INA sec. 245(l)(2), 8 decision whether to grant a fee waiver involving unusual and severe harm U.S.C. 1255(l)(2). A waiver application lies within the sole discretion of USCIS. upon removal from the United States. for a derivative family member will be Further guidance on fee waivers can be Such hardship determinations will be adjudicated in accordance with new 8 found on the USCIS Web site currently evaluated on a case-by-case basis, in CFR 212.18. at http://www.uscis.gov/feewaiver. accordance with the factors described in 5. Evidence Relating to Discretion In addition to the filing fee for the 8 CFR 214.11(i). No particular piece of Form I–485 and Form I–601, if evidence will guarantee a finding that Consistent with all of the other applicable, applicants will have to extreme hardship involving unusual adjustment of status provisions, section submit the established fee for biometric and severe harm would result if the 245(l) of the Act makes adjustment of services, or fee waiver request, for each applicant is removed from the United status to that of a lawful permanent person ages 14 through 79 inclusive States. To minimize the burden of resident a discretionary benefit. To with each application. This fee can also submitting voluminous documentary enable USCIS to determine whether to be found at 8 CFR 103.7(b). evidence and to streamline the exercise discretion favorably, this rule adjudication of the adjustment provides that all T adjustment C. Traveling While Application for application, this rule provides that applicants have the burden of showing Adjustment of Status Is Pending where the basis for the hardship claim that discretion should be exercised in T nonimmigrants applying for represents a continuation of the their favor. New 8 CFR 245.23(e)(3). adjustment of status, and who are not in hardship claimed in the previously Generally, favorable factors such as removal, exclusion, or deportation approved application for T family ties, hardship, and length of proceedings, must follow the generally nonimmigrant status, the applicant need residence in the United States may be applicable rule that an applicant with a not re-document the entire hardship sufficient to merit a favorable exercise of pending adjustment of status claim, but instead may submit evidence administrative discretion. However, application must obtain advance parole demonstrating that the previously- where adverse factors are present, the from USCIS. New 8 CFR 245.23(j); 8 established hardship is ongoing. New 8 applicant will need to offset these CFR 245.2(a)(4)(ii)(B). Advance parole CFR 245.23(f)(2). However, in reaching factors by showing sufficient mitigating can be requested by completing and its decision regarding hardship under equities. This rule permits applicants to filing Form I–131, Application for this section, USCIS is not bound by its submit information regarding any Travel Document, in accordance with previous hardship determination made mitigating factors they wish to be the instructions on the form, or any under 8 CFR 214.11(i). Id. considered. Id. Depending on the nature other appropriate form, before departing

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the United States. Id. If an applicant the necessary information to produce years in U interim relief status might not fails to acquire advance parole prior to the Form I–551 (Alien Registration continue to hold such status at the time departure, USCIS will deem the Receipt Card or ‘‘green card’’). The of application for adjustment of status application for adjustment of status notice of approval will also inform the and would otherwise be ineligible for abandoned as of the moment of applicant how to obtain temporary adjustment of status. USCIS is therefore departure from the United States. If the evidence of lawful permanent resident creating a transition rule to allow these adjustment of status application of such status. Upon approval of an application aliens, if otherwise eligible, to apply to an individual is subsequently denied, for adjustment of status, USCIS will adjust status within 120 days of he or she will be treated as an applicant record the alien’s admission as a lawful approval of the Form I–918. New 8 CFR for admission subject to sections 212 permanent resident as of the date of 245.24(b)(2)(ii). Recipients of U interim and 235 of the Act. Id. If a T such approval. See INA sec. 245(l)(5), 8 relief may apply for adjustment of status nonimmigrant applying for adjustment U.S.C. 1255(l)(5). after 4 years in U interim relief status if of status is in removal, exclusion, or If the application for adjustment of they have previously filed a complete deportation proceedings, USCIS will status is denied, the applicant will be Form I–918. Id. If the Form I–918 is deem the application for adjustment of notified in writing of the reasons for the subsequently approved, USCIS will then status abandoned as of the moment of denial and of the right to appeal the adjudicate the pending adjustment the applicant’s departure from the decision to the USCIS Administrative application. USCIS believes that this United States if the applicant failed to Appeals Office. New 8 CFR 245.23(i). transition rule will allow applicants to acquire advance parole prior to Because derivative family members’ remain eligible to adjust status and will departure. New 8 CFR 245.23(i); 8 CFR applications are dependent upon not penalize those applicants with more 245.2(a)(4)(ii)(A). approval of the principal applicant’s than 4 years in U interim relief status. adjustment application, this rule also D. Decisions on Applications Under 2. Physical Presence for Requisite provides that denial of the T–1 principal Section 245(l) of the Act Period applicant’s application will result in the 1. Annual Limitation on the Number of automatic denial of a derivative family All applicants for adjustment of status Adjustments of T–1 Nonimmigrants member’s application. Id. under section 245(m) of the Act must have maintained continuous physical USCIS may adjust the status of no IV. Aliens in U Nonimmigrant Status presence in the United States for at least more than 5,000 T–1 principal aliens in Adjusting Status Under Section 245(m) 3 years since the date of admission as a given fiscal year. See INA sec. of the Act a U nonimmigrant. New 8 CFR 245(l)(4)(A), 8 U.S.C. 1255(l)(4)(A). This A. Eligibility Requirements for U 245.24(b)(3); see INA sec. 245(m)(1)(A), numerical limitation does not apply to 8 U.S.C. 1255(m)(1)(A). Applicants who Nonimmigrants Seeking Adjustment of spouses, children, parents, and have departed from the United States for Status unmarried siblings in T–2, T–3, T–4, any period in excess of 90 days or for and T–5 status who seek adjustment of This rule promulgates new 8 CFR any periods exceeding 180 days in the status as derivatives. See INA sec. 245.24 to list the eligibility aggregate shall not be considered to 245(l)(4)(B), 8 U.S.C. 1255(l)(4)(B). requirements for adjustment of status for have maintained continuous physical USCIS will adjudicate applications in U–1 nonimmigrants and their family presence. New 8 CFR 245.24(a)(1); see the order in which they are received. members in lawful U–2, U–3, U–4, and INA sec. 245(m)(2), 8 U.S.C. 1255(m)(2). Once the numerical limit has been U–5 nonimmigrant status under section An absence for any period in excess of reached in a particular fiscal year, all 245(m) of the Act, 8 U.S.C. 1255(m). 90 days or for any periods exceeding pending and subsequently received 1. Admitted as a U Nonimmigrant 180 days is permissible only if the applications will continue to be excessive absence is necessary to assist reviewed in the normal process to All applicants for adjustment of status in the investigation or prosecution of determine eligibility. However, USCIS under section 245(m) of the Act must persons in connection with the will not approve adjustment of status have been lawfully admitted to the qualifying criminal activity or if an prior to the beginning of the next fiscal United States in U nonimmigrant status official involved in the investigation or year and not until a number under the and must continue to hold such status prosecution certifies that the absence is cap becomes available. New 8 CFR at the time of the application. New 8 otherwise justified. Id. Absences for less 245.23(l)(2). USCIS will place eligible CFR 245.24(b)(2). than 90 days at one time or 180 days in applicants who are not granted This rule provides a transition rule for the aggregate will not be deducted from adjustment of status due solely to the those aliens who accrued 4 years or the requisite continuous physical numerical limit on a waiting list and more in U interim relief status prior to presence period required to establish notify the applicants of that placement. promulgation of this rule. Section eligibility for adjustment of status and Id. Applicants on the waiting list will be 214(p)(6) of the Act, 8 U.S.C. 1184(p)(6), will not be deemed an interruption of given priority in the following fiscal prescribes a maximum duration in U the period. Id. year based on the date the application nonimmigrant status of 4 years, unless 3. Unreasonable Refusal To Assist in the was properly filed. Id. the U nonimmigrant receives a law enforcement certification stating that the Investigation or Prosecution 2. Decisions on Applications U nonimmigrant’s presence is necessary Section 245(m)(1) of the Act, 8 U.S.C. USCIS will notify an applicant in to assist in the investigation or 1255(m)(1), prohibits USCIS from writing of its decision on the adjustment prosecution. Title 8 CFR 214.14(c)(6) adjusting the status of an otherwise of status and any applicable waiver provides that aliens with U interim eligible U nonimmigrant if the Attorney application. New 8 CFR 245.23(h). If the relief status whose Form I–918, Petition General determines, based on application is approved, USCIS will for U Nonimmigrant Status, is approved affirmative evidence, that the U issue a notice of approval, instructing will be accorded U nonimmigrant status nonimmigrant unreasonably refused to the applicant to go to a local USCIS as of the date that a request for U provide assistance to a Federal, State, or office or an Application Support Center interim relief was initially approved. local criminal investigation or to complete Form I–89, which collects Therefore, aliens who already accrued 4 prosecution. USCIS interprets this

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statutory provision as imposing an for assistance, as it is a matter for the Therefore, if an applicant does not ongoing requirement for U–1 Attorney General to determine whether submit such a document, the applicant nonimmigrants not to refuse any refusal was unreasonable. However, may submit an affidavit describing the unreasonably to provide assistance in an it is appropriate and consistent with the applicant’s efforts, if any, to obtain a investigation or prosecution. For a statutory scheme to require the newly executed Form I–918, derivative family member of a U–1 applicants to describe any requests they Supplement B, or other evidence nonimmigrant (a U–2, U–3, U–4, or U– received for law enforcement assistance, describing whether or not the alien 5 nonimmigrant) who was not required to identify the persons or agencies who received any request to provide to provide such assistance as a made the requests, and to state how they assistance in a criminal investigation or prerequisite for obtaining U responded to such requests. As a general prosecution and the alien’s response to nonimmigrant status, USCIS interprets matter, the alien is in a proper position any such request. New 8 CFR this provision to mean that if the to identify such basic facts relating to 245.24(e)(2). The applicant should derivative U–2, U–3, U–4, or U–5 whether any such requests for assistance include a description of all instances of nonimmigrant possessed information were made to the alien and how the which the applicant is aware in which about the qualifying criminal activity on alien responded to the requests. This the applicant was requested to provide which the U–1 nonimmigrant petition information is necessary for the assistance in the criminal investigation was based and was asked to assist in the Attorney General to be able to evaluate or prosecution of persons in connection investigation or prosecution, the whether an alien’s refusal to provide with the qualifying criminal activity derivative U nonimmigrant has a assistance was unreasonable under the after the applicant was granted U responsibility not to unreasonably circumstances. Given the range of nonimmigrant status and how the alien refuse to provide that assistance. qualifying offenses for the U visa, USCIS responded to such requests. Id. Thus, this rule defines ‘‘refusal to anticipates that the substantial majority Applicants should also include, when provide assistance in a criminal of such crimes will be the subject of possible, identifying information about investigation or prosecution’’ as the state or local criminal investigations and the law enforcement personnel involved refusal by the alien to provide assistance prosecutions, rather than cases arising in the case and any information of to an official or law enforcement agency under federal criminal laws, and, in which the applicant is aware about the that had responsibility for the addition, that many of the investigations status of the criminal investigation or investigation or prosecution of persons and prosecutions may already have been prosecution, including any charges filed in connection with the qualifying closed (perhaps for several years) by the and the outcome of any criminal criminal activity after the alien was time the alien is applying for adjustment proceedings, or whether the granted U nonimmigrant status. New 8 of status, given the requirement that the investigation or prosecution was CFR 245.24(a)(5). alien must be in U nonimmigrant status dropped and the reasons. Id. Depending The rule provides that the for 3 years before applying for on the circumstances, evidence might determination of whether an alien’s adjustment. include such documentation as court refusal to provide assistance was In order to facilitate the adjudication documents, police reports, news unreasonable will be based on all of U adjustment applications, this rule articles, copies of reimbursement forms available affirmative evidence and take provides an option for applicants to for travel to and from court, and into account the totality of the obtain a document signed by an official affidavits of other witnesses or officials. circumstances and such factors as or law enforcement agency that had If applicable, an applicant also may general law enforcement, prosecutorial, responsibility for persons in connection choose to provide a more detailed and judicial practices; the kinds of with the investigation or prosecution of description of situations where the assistance asked of other victims of the qualifying criminal activity. New 8 applicant declined to comply with crimes involving an element of force, CFR 245.24(e)(1). The document should requests for assistance because the coercion, or fraud; the nature of the affirm that the applicant complied with applicant believed that the failure to request to the alien for assistance; the (or did not refuse to comply with) comply with such requests for nature of the victimization; the reasonable requests for assistance in the assistance was reasonable under the applicable guidelines for victim and investigation or prosecution during the circumstances. Id. witness assistance; and the specific requisite period. Id. Applicants, if they The instructions to the Form I–918, circumstances of the applicant, so choose, may satisfy this evidentiary Supplement B, U Nonimmigrant Status including fear, severe trauma (either requirement by submitting a newly Certification, require that officials who mental or physical), and the age and executed Form I–918, Supplement B, ‘‘U sign a Supplement B in support of an maturity of the applicant. New 8 CFR Nonimmigrant Status Certification.’’ alien’s application for U nonimmigrant 245.24(a)(5). New 8 CFR 245.24(e)(2). If the alien status have an obligation to notify In order to facilitate implementation does choose to submit such a document USCIS if the alien has refused to assist of this statutory requirement, the rule in support of his or her application, in the investigation or prosecution of provides that applicants must submit USCIS (with the agreement of DOJ) has persons in connection with the evidence that demonstrates whether or concluded that there would be no need qualifying criminal activity. At any not they received requests for assistance to refer the application to DOJ absent time, USCIS or DOJ may at its discretion from an official or law enforcement extraordinary circumstances. This contact the agency that certified the agency that had responsibility for the option will thus simplify the evidence Form I–918, Supplement B, or any other investigation or prosecution of persons aliens are expected to submit in support law enforcement authority, for in connection with the qualifying of their adjustment applications and information concerning an applicant’s criminal activity after the applicants will avoid delays in the adjudicatory continuing assistance in an were granted U nonimmigrant status process attributable to the requirement investigation or prosecution. New 8 CFR and the applicants’ response to such to refer U adjustment applications to 245.24(e)(3). requests. New 8 CFR 245.24(d)(8); DOJ. Additionally, in accordance with 245.24(e). The applicant is not required USCIS is aware that, in some cases, it procedures determined by DOJ and to establish the reasonableness of any may be difficult, if not impossible, for DHS, USCIS will refer certain refusals to comply with such requests an applicant to obtain such a document. applications for adjustment of status,

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including any affirmative evidence of physical presence, as well as any and the alien’s response to any such applicants’ refusal to provide assistance information the applicant would like request. New 8 CFR 245.24(e)(2). in a criminal investigation or USCIS to consider when determining 3. Evidence of Continuous Physical prosecution, to DOJ for a determination whether adjustment of status is Presence of whether the applicant has warranted as a matter of discretion on unreasonably refused to comply with a humanitarian grounds or to ensure All applicants must submit evidence, request for assistance in an investigation family unity, or is otherwise in the including an affidavit, attesting that or prosecution. New 8 CFR 245.24(e)(4). public interest. Id. they have accrued 3 years of continuous USCIS anticipates referring an physical presence in the United States application to DOJ only if a certifying 1. Evidence That Applicant Was since admission in U nonimmigrant official or agency has provided evidence Admitted in U Nonimmigrant Status status. New 8 CFR 245.24(d)(9). Such that the alien has refused to provide All applicants must submit a copy of evidence may include one or more such assistance, or if there is other the Form I–797, Notice of Action, documents issued by any governmental affirmative evidence in the record granting U nonimmigrant status, with or nongovernmental authority, provided suggesting that the applicant may have the attached Form I–94 Arrival/ such evidence bears the name of the unreasonably refused to provide Departure Record, or a copy of the applicant, was dated at the time it was assistance to the investigation or applicant’s passport with a U issued, and bears the signature, seal, or prosecution of persons in connection nonimmigrant visa along with a copy of other authenticating instrument of the with the qualifying criminal activity. In the Form I–94 Arrival/Departure Record authorized representative of the issuing these instances, USCIS will request that evidencing the applicant’s admission authority if the document would DOJ determine, based on all available into the United States in U normally contain such indicia. An affirmative evidence, whether the nonimmigrant status. New 8 CFR applicant also may submit college applicant has unreasonably refused to 245.24(d). transcripts or employment records, comply with a request for assistance. including certification of the filing of DOJ will have 90 days to provide a 2. Evidence Relating to Requests for Federal or state income tax returns, to written determination to USCIS, or Assistance in an Investigation or show that he or she attended school or where appropriate, request an extension Prosecution worked in the United States throughout of time to provide such a determination. An application for adjustment of the entire 3-year U nonimmigrant status period. The applicant also may submit Id. After such time, USCIS may status under section 245(m) of the Act, documents showing installment adjudicate the application whether or 8 U.S.C. 1255(m), may not be approved payments, such as a series of monthly not DOJ has provided a response. Id. where the Attorney General or his rent receipts or utility bills that cover designee determines based on B. Application Procedures for U the same 3-year period, to establish affirmative evidence that the applicant Nonimmigrants Seeking Adjustment of continuous physical presence. See unreasonably refused to provide Status generally 8 CFR 245.22. assistance to an official or law This rule clarifies that the generally An applicant need not submit enforcement agency that had applicable adjustment of status documentation to show presence on responsibility for the investigation or provisions in 8 CFR 245.1 and 8 CFR every single day of the 3-year U prosecution of persons in connection 245.2 do not apply to applications for nonimmigrant status period, but there adjustment of status under the new 8 with the qualifying criminal activity should be no significant chronological CFR 245.24. The adjustment provisions after the applicant was granted U gaps in documentation. Any absence contained in section 245(m) of the Act, nonimmigrant status. New 8 CFR from the United States, even for one 8 U.S.C. 1255(m), are stand-alone 245.24(d)(8); 245.24(e). day, is significant for purposes of provisions and not simply a variation of As discussed above, an applicant can eligibility because of the aggregate 180- the general adjustment rules contained facilitate the adjudication of the day restriction on absences from the in section 245(a) of the Act, 8 U.S.C. adjustment application by obtaining a United States. 1255(a). New 8 CFR 245.24(l). document signed by an official or law If the applicant is aware of documents This rule also provides that USCIS enforcement agency that had already contained in his or her DHS file will maintain sole jurisdiction over the responsibility for the investigation or that establish physical presence, he or adjudication of applications to adjust prosecution of persons in connection she need only list those documents, status under section 245(m) of the Act with the qualifying criminal activity, giving the type and date of the because the statutory language vests this affirming that the applicant complied document. Examples of such documents authority in the Secretary of Homeland with (or did not unreasonably refuse to might include a written copy of a sworn Security. New 8 CFR 245.24(f). comply with) requests for assistance in statement given to a DHS officer, a This rule designates Form I–485, the investigation or prosecution during document from a law enforcement Application to Register Permanent the requisite period. New 8 CFR agency attesting to the fact that the U Residence or Adjust Status, as the form 245.24(e)(1). Applicants may satisfy this nonimmigrant has continued to comply that a U nonimmigrant status holder option by submitting a newly executed with requests for assistance, the must use to request adjustment of status. Form I–918, Supplement B, ‘‘U transcript of a formal hearing, or a New 8 CFR 245.24(d). The instructions Nonimmigrant Status Certification.’’ Id. Record of Deportable/Inadmissible to Form I–485 specify where applicants However, if an applicant does not Alien, Form I–213. must file their application packages. submit such a document, the applicant To facilitate USCIS’ evaluation of The rule requires applicants to follow may submit an affidavit describing the physical presence in the United States, the instructions on the form for proper applicant’s efforts, if any, to obtain a applicants must submit documentation completion and to include the proper newly executed Form I–918, regarding any departure and re-entry, fees or a fee waiver request. New 8 CFR Supplement B, or other evidence including a copy of their passport (or 245.24(d). The rule also instructs describing whether the alien received equivalent travel document) with dates applicants to submit supporting any request to provide assistance in a of departure and corresponding time, evidence to establish continuous criminal investigation or prosecution manner, and place of return. New 8 CFR

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245.24(d)(5) and (6). Applicants who mitigating factors. This rule permits proceedings. New 8 CFR 245.24(k). The were absent from the United States for applicants to submit information Attorney General will publish any period in excess of 90 days or for regarding any mitigating factors they companion rules amending 8 CFR parts any periods in the aggregate of 180 days would like USCIS to consider when 1240 and 1245. or more must submit a statement from determining whether a favorable D. Qualifying Family Members Who the investigating or prosecuting agency exercise of discretion is appropriate. Id. certifying that the absences were Depending on the nature of an Have Never Held U Nonimmigrant necessary to assist in the investigation applicant’s adverse factors, the Status or prosecution, or were otherwise applicant may be required to Section 245(m) of the Act, 8 U.S.C. justified. Id. The omission of such demonstrate clearly that the denial of 1255(m), allows two categories of certification will result in denial of the adjustment of status would result in qualifying family members of principal application. exceptional and extremely unusual U–1 nonimmigrants to apply for A signed statement from the applicant hardship. Moreover, depending on the adjustment of status or an immigrant attesting to continuous physical gravity of the alien’s adverse factors, visa: (1) Family members in lawful U– presence alone will not be sufficient to such a showing might still be 2, U–3, U–4, or U–5 nonimmigrant establish this eligibility requirement. Id. insufficient. Id. See Matter of Jean, 23 status; and (2) certain qualifying family If documentation to establish I&N Dec. 373, 383–384 (A.G. 2002), aff’d members who have never held U continuous physical presence is not Jean v. Gonzales, 452 F.3d 392 (5th Cir. nonimmigrant status. Because the available, the applicant must explain 2006). See also Pinentel v. Mukasey, 530 procedures for family members in why in an affidavit and provide F.3d 321 (5th Cir. 2008); Meija v. lawful U status are the same as those for additional affidavits from other Gonzales, 499 F.3d 991 (9th Cir. 2007). principal applicants and have already individuals with first-hand knowledge For example, only the most compelling been discussed above, this section will who can attest to the applicant’s positive factors would justify a favorable only discuss those qualified family continuous physical presence by exercise of discretion in cases where the members who have never held U specific facts. Id. applicant has committed or been nonimmigrant status. convicted of a serious violent crime, a 4. Evidence Relating to Admissibility 1. Eligibility Requirements and Discretion crime involving sexual abuse committed upon a child, or multiple drug-related After granting adjustment of status to The only ground of inadmissibility crimes, or where there are security- or applicable to U nonimmigrants applying a U–1 principal applicant, USCIS may terrorism-related concerns. 8 CFR grant lawful permanent resident status for adjustment of status under section 245.24(d)(11). 245(m) of the Act is section 212(a)(3)(E) to certain spouses, children, and parents of the Act, 8 U.S.C. 1182(a)(3)(E), which C. Decisions on Adjustment of Status based upon their relationship to the relates to participants in Nazi Applications From U Nonimmigrants principal applicant. See INA sec. persecution, genocide, or the USCIS will give written notice of its 245(m)(3), 8 U.S.C. 1255(m)(3). The commission of any act of torture or decision on the adjustment of status statute allows USCIS to extend these extrajudicial killing. This ground of application to the applicant. New 8 CFR derivative benefits only if: (1) The inadmissibility is not waivable for 245.24(f). If the application is approved, qualifying family member was never purposes of adjustment of status of U USCIS will issue a notice of approval admitted to the United States in U nonimmigrants. See INA sec. 245(m)(1), instructing the applicant to go to a local nonimmigrant status, and (2) it is 8 U.S.C. 1255(m)(1). Otherwise, U USCIS office or Application Support established that either the family adjustment applicants are not required Center to complete Form I–89, which member or the U–1 principal applicant to establish that they are admissible on collects the necessary information to would suffer extreme hardship if the any of the grounds set forth in section produce the Form I–551 (Alien qualifying family member is not allowed 212(a) of the Act. Registration Receipt Card or ‘‘green to remain in or be admitted to the Nevertheless, as with all of the other card’’). The notice of approval will also United States. Id. Because qualifying adjustment of status provisions, section inform the applicant how to obtain family members’ applications are 245(m) of the Act makes adjustment of temporary evidence of lawful dependent upon approval of the status under that section a discretionary permanent resident status. Upon principal applicant’s adjustment of benefit. To enable USCIS to determine approval of an application for status application, this rule provides whether to exercise discretion favorably, adjustment of status, USCIS will record that denial of the U–1 principal applicants have the burden of showing the alien’s admission as a lawful applicant’s application would result in that discretion should be exercised in permanent resident as of the date of the automatic denial of a derivative their favor. New 8 CFR 245.24(d)(11). such approval. New 8 CFR 245.24(f)(1); family member’s application. New 8 Although U adjustment applicants are see INA sec. 245(m)(4), 8 U.S.C. CFR 245.24(h)(2)(ii). not required to establish that they are 1255(m)(4). This rule establishes a two-stage admissible, USCIS may take into If the application for adjustment of application process (described in detail account all adverse factors, including status is denied, the applicant will be below) for qualifying family members to acts that would otherwise render the notified in writing of the reasons for the obtain lawful permanent residence. applicant inadmissible, in making its denial and of the opportunity to appeal First, the principal applicant must file discretionary decision on the the decision to the Administrative an immigrant petition on behalf of the application. Generally, favorable factors Appeals Office (AAO). New 8 CFR qualifying family member. New 8 CFR such as family ties, hardship, and length 245.24(f)(2). Because section 245(m) of 245.24(h). Second, if the immigrant of residence in the United States may be the Act gives the Secretary of Homeland petition is approved, qualifying family sufficient to merit a favorable exercise of Security exclusive authority over members who are present in the United administrative discretion. However, applications for adjustment of status of States may adjust their status to that of where adverse factors are present, it will U nonimmigrants, such applications lawful permanent residents, and be necessary for the applicant to offset may not be renewed or otherwise filed qualifying family members outside the these factors by showing sufficient before an immigration judge in removal United States may go to a U.S. embassy

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or consulate to obtain their immigrant U.S.C. 1255(a) and (c), do not apply to Upon approval of a Form I–929 for a visas. Id. applicants for lawful permanent qualifying family member who is residence under section 245(m). outside of the United States, USCIS will 2. Immigrant Petition Process Nevertheless, approval of adjustment of forward the notice of approval either to This rule establishes a new form for status under that section is a the Department of State’s National Visa U–1 principal applicants to file on discretionary determination of the Center so the applicant can apply to the behalf of qualifying family members: Secretary. Consequently, this rule consular post for an immigrant visa, or USCIS Form I–929, ‘‘Petition for provides that the qualifying family to the appropriate port of entry for a visa Qualifying Family Member of a U–1 member has the burden of showing that exempt alien. New 8 CFR Nonimmigrant’’ (I–929). New 8 CFR discretion should be exercised in his or 245.24(h)(2)(i)(A). Those family 245.24(h)(1). U–1 principals may file her favor. Although U adjustment members issued immigrant visas under Form I–929 concurrently with, or at any applicants are not required to establish section 245(m)(3) of the Act, 8 U.S.C. time after they have filed, their Form that they are admissible on any of the 1255(m)(3), must still establish I–485 under section 245(m) of the Act. grounds set forth in section 212(a) of the admissibility before a U.S. Customs and This rule provides, however, that a Act except under section 212(a)(3)(E) of Border Protection (CBP) officer when Form I–929 may not be approved until the Act, USCIS may take into account applying for admission to the United the U–1 principal’s application to adjust all adverse factors, including acts that States at a port of entry. Once a Form status is approved. New 8 CFR would otherwise render the applicant I–929 is approved for a qualifying 245.24(h)(2). inadmissible, in making its family member who is in the United Form I–929 must be filed with the discretionary decision on the States, the family member becomes applicable fee, or fee waiver request, application. Generally, favorable factors eligible to apply for adjustment of and in accordance with the form such as family ties, hardship, and length status. instructions. New 8 CFR 245.24(h)(1)(ii). of residence in the United States may be It must be submitted with evidence 3. Adjustment of Status for Qualifying sufficient to merit a favorable exercise of establishing the relationship, such as a Family Members Who Never Held U administrative discretion. However, birth or marriage certificate. New 8 CFR Nonimmigrant Status where adverse factors are present, the 245.24(h)(1)(iii). If primary evidence is applicant must offset these factors by This rule allows a U–1 principal to not available, secondary evidence or showing sufficient mitigating equities. file the Form I–929 for qualifying family affidavits may be submitted in members either concurrently with or at This rule permits applicants to submit accordance with 8 CFR 103.2(b)(2). a later date than their Form I–485 information regarding any mitigating Section 245(m)(3) of the Act, 8 U.S.C. application for adjustment of status. factors they would like USCIS to 1255(m)(3), requires the Secretary to Form I–485 must be filed with the consider when determining whether a determine whether the U–1 principal or appropriate fee or fee waiver request favorable exercise of discretion is a qualifying family member would and in accordance with the form appropriate. New 8 CFR 245.24(h). suffer extreme hardship if the family instructions. Upon approval of a Form Depending on the nature of an member is not allowed to remain in or I–485, USCIS will issue a notice of applicant’s adverse factors, the join the U–1 principal in the United approval, instructing the applicant to go applicant may be required to clearly States. This rule, therefore, requires to a local USCIS office or Application demonstrate that the denial of Form I–929 to be submitted with Support Center to complete Form I–89, adjustment of status would result in evidence establishing that the qualifying which collects the necessary exceptional and extremely unusual family member, or the principal U–1 information to produce the Form I–551. hardship. Moreover, depending on the alien, would suffer extreme hardship as The notice of approval also will inform gravity of the alien’s adverse factors, described in new 8 CFR 245.24(h)(1)(iv) the applicant how to obtain temporary such a showing might still be (to the extent the factors listed are evidence of lawful permanent resident insufficient. Id. See Matter of Jean, 23 applicable). USCIS will consider all status. USCIS will record the alien’s I&N Dec. 373, 383–384 (A.G. 2002), aff’d credible relevant evidence of extreme admission for lawful permanent Jean v. Gonzales, 452 F.3d 392 (5th Cir. hardship and will evaluate each residence as of the date of such 2006). See also Pinentel v. Mukasey, 530 application on a case-by-case basis in approval. New 8 CFR 245.24(i)(2)(i). accordance with the factors outlined in F.3d 321 (5th Cir. 2008); Meija v. If either the Form I–929 or the Form new 8 CFR 245.24(h)(1)(iv). The Gonzales, 499 F.3d 991 (9th Cir. 2007). I–485 is denied, USCIS will notify the decision that an applicant has met his For example, only the most compelling applicant in writing of the reasons for or her burden of demonstrating extreme positive factors would justify a favorable the denial and of the opportunity to hardship is a matter of discretion. No exercise of discretion in cases where the appeal the decision to the USCIS particular piece of evidence will applicant has committed or been Administrative Appeals Office. New 8 guarantee a finding that extreme convicted of a serious violent crime, a CFR 245.24(i)(2)(ii). Because qualifying hardship would result if the applicant’s crime involving sexual abuse committed family members’ applications depend family members were not allowed to upon a child, or multiple drug-related on approval of the principal applicant’s enter or remain in the United States. crimes, or where there are security- or adjustment application, this rule also As discussed above, U adjustment terrorism-related concerns. Id. provides that denial of the U–1 applicants are not required to establish This rule provides that USCIS will principal applicant’s application will that they are admissible on any of the provide written notice of its decision on result in the automatic denial of a grounds set forth in section 212(a) of the the Form I–929 to the applicant. New 8 qualifying family member’s application. Act, 8 U.S.C. 1182(a), other than on CFR 245.24(h)(2). If USCIS denies the Id. section 212(a)(3)(E) of the Act (relating Form I–929, the applicant will be to participants in Nazi persecution, notified in writing of the reasons for the 4. Fee To Be Charged for Form I–929, genocide, or the commission of any act denial and of the opportunity to appeal Petition for Qualifying Family Member of torture or extrajudicial killing), and the decision to the USCIS of a U–1 Nonimmigrant the companion restrictions set forth in Administrative Appeals Office. New 8 USCIS is proposing to charge a fee to sections 245(a) and (c) of the Act, 8 CFR 245.24(h)(2)(ii). recover the costs incurred to adjudicate

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the petitions for qualifying family application for adjustment of status interest. This rule is being published as members of U–1 nonimmigrants. USCIS abandoned as of the moment of an interim final rule and is effective 30 is authorized by law to recover the full departure from the United States. If the days after publication. USCIS invites cost of processing every Form I–929. adjustment of status application of such comments and will address those However, the resources required to an individual is subsequently denied, comments in the final rule. deliver this benefit are difficult to he or she will be treated as an applicant If the implementation of the estimate due to the small number of for admission subject to sections 212 provisions of this rule were delayed potential applicants and the differing and 235 of the Act, 8 U.S.C. 1182, 1225. pending public comments, many aliens level of complexity involved in the Id. If a U nonimmigrant applying for could be required to depart the United determination of each application. adjustment of status is under exclusion, States because of the automatic To determine a reasonable fee, USCIS deportation, or removal proceedings, termination of their nonimmigrant reviewed the requirements of other USCIS will deem the application for status even though they would become programs that provide special benefits adjustment of status abandoned as of the eligible for adjustment of status upon to the same or similar user populations moment of the applicant’s departure promulgation of this rule. as the new Form I–929. Information on from the United States if the applicant An interim rule, New Classification other forms, such as the quantity of failed to acquire advance parole prior to for Victims of Severe Forms of information that must be researched, departure. New 8 CFR 245.24(j), Trafficking in Persons; Eligibility for collected, completed, submitted, and 245.2(a)(4)(ii)(A). ‘‘T’’ Nonimmigrant Status, provided for analyzed were used as an indication of T nonimmigrant status. 67 FR 4784 (Jan. the resources expended by USCIS to F. Employment Authorization While 31, 2002). As stated above, a T deliver the benefit. Those indicators Adjustment of Status Application Is nonimmigrant’s failure to timely apply were compared with that of the Form Pending for adjustment of status will result in I–929 to arrive at a fee for the Form Applicants for adjustment of status termination of that T status at the end I–929. under section 245(m) of the Act may of that 4-year period unless the T status The reasonable fee for USCIS to apply for employment authorization on is extended because law enforcement charge a petitioner for adjudication of a the basis of 8 CFR 274a.12(c)(9). certifies that the presence of the alien in Form I–929 was calculated using several Applicants must submit a Form I–765, the United States is necessary to assist methods. For ease of administration, Application for Employment in an investigation or prosecution. See USCIS has decided to charge the same Authorization, in accordance with the INA sec. 214(o)(7)(B), 8 U.S.C. 1184 fee for each Form I–929. The one fee form instructions. (o)(7)(B). Currently, approximately 330 policy will be revisited if inequities to principal T–1 nonimmigrants have been certain groups are noted. The analysis G. Application and Biometric Services in T nonimmigrant status for more than indicated that USCIS should collect a As stated above, section 286(m) of the 3 years and therefore are eligible to fee of $215 for each Form I–929 Act, 8 U.S.C. 1356(m), requires that apply for adjustment of status under this adjudication. A copy of the detailed fee USCIS collect fees to recover the cost of rule immediately upon its effective date. determination is available from USCIS providing certain immigration and There is a risk that the 4-year limitation upon request. USCIS recognizes that naturalization benefits. for T nonimmigrant status will run out some applicants for adjustment of status The required fee for filing an for these aliens, resulting in termination may be unable to pay the full Application to Register Permanent of T nonimmigrant status. Therefore, application fee. Applicants who are Residence or Adjust Status (Form I–485) USCIS has determined that this rule financially unable to pay the application is listed at 8 CFR 103.7(b). USCIS needs to become effective as soon as fee may submit an application for a fee recognizes that some applicants for possible to ensure that these aliens can waiver, as outlined in 8 CFR 103.7(c). adjustment of status may be unable to apply for adjustment of status and avoid The granting of a fee waiver will be at pay the full application fee. Applicants falling out of lawful immigration status. Likewise, U nonimmigrants may the sole discretion of USCIS. Further who are financially unable to pay the apply for adjustment of status after they guidance on USCIS fee waivers can be application fee may submit an have been in lawful U nonimmigrant found on the USCIS Web site currently application for a fee waiver as outlined status for at least 3 years. See INA at http://www.uscis.gov/feewaiver. in 8 CFR 103.7(c). The decision whether sections 101(a)(15)(U), 214(p), and to grant a fee waiver lies within the sole E. Traveling While Application for 245(m); 8 U.S.C. 1101(a)(15)(U), discretion of USCIS. Further guidance Adjustment of Status Is Pending 1184(p), and 1255(m). The interim final on fee waivers can be found on the U nonimmigrants who are applying rule implementing U nonimmigrant USCIS Web site currently at http:// for adjustment of status, and who are classification was recently published. 72 www.uscis.gov/graphics/formsfee/ not under exclusion, deportation, or FR 53014 (Sept. 17, 2007). A U removal proceedings, must follow the forms/index.htm. nonimmigrant is eligible to apply for generally applicable rule that an In addition to the filing fee for the adjustment of status if the alien was applicant with a pending adjustment of Form I–485, applicants must submit the admitted in either U–1, U–2, U–3, U–4, status application must obtain advance established fee for biometric services, or or U–5 nonimmigrant status and has parole from USCIS. 8 CFR a fee waiver request, for each person age continuous physical presence for at 245.2(a)(4)(ii)(B). Advance parole can be 14 through 79 inclusive. New 8 CFR least 3 years. New 8 CFR 245.24. requested by completing and filing 245.24(d)(3). This fee can also be found Currently, there are approximately 5,000 Form I–131, Application for Travel at 8 CFR 103.7(b). aliens who were granted interim Document, in accordance with the V. Regulatory Requirements benefits before they could apply for U instructions on the form, or any other nonimmigrant status. These aliens were appropriate form, before departing the A. Administrative Procedure Act deemed prima facie eligible for U United States. New 8 CFR 245.24(j), USCIS has determined that delaying nonimmigrant status prior to 245.2(a)(4)(ii)(B). If such an applicant the effect of this rule during the period publication of the regulations for U fails to acquire advance parole prior to of public comment would be nonimmigrant status. The U-visa rule departure, USCIS will deem the impracticable and contrary to the public provides that the time spent in interim

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relief will count toward the 3 years of E. Executive Order 12866 (Regulatory Congress to address such concerns tend physical presence required for Planning and Review) to be intangible. Nonetheless, DHS has adjustment of status purposes, 8 CFR This rulemaking is a ‘‘significant’’ assessed both the costs and benefits of 214.14(a)(13), and U nonimmigrant regulatory action under Executive Order this rule and they are as follows: status will be granted as of the date that 12866. As required by section 6(a)(3)(C) USCIS uses fees to fund the cost of a request for U interim relief was of the Executive Order, USCIS prepared processing applications and associated initially approved, 8 CFR 214.14(c)(6). an assessment of the benefits and costs support benefits, providing benefits to USCIS estimates that 2,100 of the 5,412 anticipated to occur as a result of this asylum and refugee applicants, and providing benefits to other immigrants aliens currently granted interim benefits rule for the Office of Management and at no charge. The fees to be collected as pending publication of the U Budget. a result of this rule will be nonimmigrant regulations will have The VTVPA was intended to combat trafficking in persons with preventative approximately $2,955,880 in the first been in the United States for 3 years year after this rule is published, when this rule is published. Therefore, measures, prosecution of traffickers, and protection of victims. USCIS adjudicates $1,932,880 in the second year, and a similar problem exists for those average about $32,472,880 per year in granted U nonimmigrant status as with applications for immigration benefits filed by victims of a severe form of the third and subsequent years. To T nonimmigrants if the effective date of trafficking in persons and other estimate the new fee collections to be this rule is delayed pending public specified crimes. According to findings generated by this rule, USCIS estimated notice and comment. from the National Crime Victimization the fees to be collected for new applications for adjustment of status B. Regulatory Flexibility Act Survey, in 2005, U.S. residents age 12 or older experienced approximately 23 from T and U nonimmigrants and their DHS has reviewed this rule in million crimes; 22% (5.2 million) were eligible family members. After that, we accordance with the Regulatory crimes of violence. For every 1,000 estimated fees from associated Flexibility Act, 5 U.S.C. 605(b), and, by persons age 12 or older, there occurred: applications that are required such as approving it, certifies that this rule will 1 rape or sexual assault, 1 assault with biometrics, and others that are likely to occur in direct connection with not have a significant economic impact injury, and 3 robberies. However, only applications for adjustment, such as on a substantial number of small entities 49.9 percent of all violent crimes are employment authorization or travel because of the following factors. The reported to police.2 Aliens, especially those without legal immigration status, authorization. rule applies to individuals, not small T adjustment. Currently, there are 787 entities, and allows certain aliens who are often reluctant to help in the investigation or prosecution of those persons with T nonimmigrant status as are victims of severe forms of trafficking principals (T–1) and 682 in the United in persons or victims of crimes listed in crimes. And, while there is no specific data on alien victims of crime, States who are derivatives (relatives) of section 101(a)(15)(U) of the Act to adjust demographic statistics indicate that the principal (T–2, T–3, T–4, T–5), for their status to lawful permanent aliens may be victimized at even higher a total of 1,469 persons with T visas. Primary T–1. Approximately 330 T–1 residents; it has no effect on small rates than citizens. For example, in nonimmigrants have been in such status entities as that term is defined in 5 2005, persons in households with an for 3 years and are therefore eligible to U.S.C. 601(6). annual income under $7,500 apply for adjustment of status to that of experienced higher rates of robbery and C. Unfunded Mandates Reform Act of a lawful permanent resident under this assault than persons in households with 1995 rule. Thus, at least those 330 T–1 higher income levels. In addition, nonimmigrants are expected to apply for This rule will not result in the Hispanics were victims of overall adjustment of status in the year after expenditure by State, local, and tribal violence at a rate higher than non- this rule takes effect. The fee for Form governments, in the aggregate, or by the Hispanics, making up 15% of all violent I–485 is $930.3 Thus, an estimated private sector, of $100 million or more crime victims, but only 13% of the annual fee collection of $306,900 for in any one year, and it will not population. U visas are intended, in adjustment for T status for primary T significantly or uniquely affect small part, to help overcome this reluctance to nonimmigrants will result directly from governments. Therefore, no actions were aid in law enforcement. this rule. The numbers of applications As of May 2004, the U.S. Government deemed necessary under the provisions and fees collected are expected to be of the Unfunded Mandates Reform Act estimated that 14,500 to 17,500 people similar in future years. of 1995. are trafficked annually into the United Derivatives. Of the 682 derivatives of States and 600,000 to 800,000 are the principal (T–2, T–3, T–4, T–5 D. Small Business Regulatory trafficked globally. Also, 80 percent of nonimmigrants), it is estimated that 286 Enforcement Fairness Act of 1996 trafficking victims are female, 70 have been in the country for 3 years or percent of those are trafficked for more, using the same ratio of T–1 This rule is not a major rule as commercial sex, and most victims nonimmigrants who have been in the defined by section 804 of the Small trafficked to the U.S. come from East U.S. for 3 years (330 of 787, or 42%). As Business Regulatory Enforcement Act of Asia and the Pacific. a result, 286 primary T–1 derivatives are 1996. This rule will not result in an 1. Economic Impacts—Fees eligible and will apply for adjustment of annual effect on the economy of $100 status under this rule. This would result This rule and the VTVPA, as million or more; a major increase in in fees collected from applications for amended, are intended to enhance the costs or prices; or significant adverse adjustment of status for T–1 derivative effects on competition, employment, ability of law enforcement and to nonimmigrants of $265,980 in the first investment, productivity, innovation, or advance humanitarian goals. The main on the ability of U.S.-based companies benefits of a rule change imposed by 3 Children under 14 applying with a parent must to compete with foreign-based pay $600 and the fee is waivable for certain 2 U.S. Department of Justice, Office of Justice applicants, but for this analysis, no adjustments are companies in domestic and export Programs, Bureau of Justice Statistics, Criminal made in this analysis for any fee waivers or reduced markets. Victimization, http://www.ojp.gov/bjs/cvictgen.htm. fees for children under 14.

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year this interim rule is effective (286 × status. USCIS estimates that each U $430,000 per year, beginning in the first $930 Form I–485 fee). This figure is nonimmigrant will bring an average of year that this rule is in effect, and expected to be similar in future years. about two family members to the United continuing consistently thereafter. U-adjustment (U–1). In the supporting States and that those family members Employment authorization. USCIS documents for the rule ‘‘New will want to adjust their status when charges no additional fee for an Classification for Victims of Criminal they are eligible. The fee income employment authorization request by an Activity; Eligibility for ‘U’ generated by the resulting 20,000 applicant who has paid the I–485 fee. Nonimmigrant Status’’ (‘‘U-visa rule’’), applicants each remitting a fee of $930 Thus, no fee income is estimated from USCIS estimated that approximately results in fee income of $18,600,000 in primary or secondary T or U 12,000 people will apply for U year 3 after the rule becomes effective, nonimmigrants applying for adjustment nonimmigrant status in the first year and thereafter. of status under this rule for employment after that rule is effective. However, no Family members who are not U authorizations. more than 10,000 principal aliens may nonimmigrants—‘‘Qualifying Family Travel document. USCIS charges no be granted U nonimmigrant status in a Members.’’ New Form I–929, Petition for fee for an I–131 filed by an applicant given fiscal year (October 1 through Qualifying Family Member of a U–1 who has paid the Form I–485 September 30). For the purposes of this nonimmigrant, will be used by U application fee. Therefore, an I–131 fee rule and this accompanying analysis, nonimmigrants to request derivative will only be charged to U derivatives USCIS estimates that the 10,000 cap will benefits for qualifying family members who will be submitting the new Form I– be reached each year. USCIS also who never held U nonimmigrant status. 929 without a concurrent Form I–485. estimates that every U nonimmigrant U nonimmigrants may also petition for However, very few applicants are will apply for adjustment of status as derivative status on behalf of resident expected to do so. Thus, no fee income soon as he or she can, if they can and family members by submitting a Form is estimated from Form I–131 as a result if still in the country, following I–918, Supplement A, ‘‘Petition for of this rule. publication of this interim rule. Thus, Qualifying Family Member of U–1 Biometric services fees. USCIS will USCIS expects that 10,000 aliens will be Recipient,’’ for each qualifying family collect a fee for biometrics services for eligible to apply for adjustment of status member either at the same time or after adjustment applications from T and U after they have been in U status for 3 filing his or her own Form I–918. To nonimmigrants and their derivative years. USCIS estimates that each such apply for adjustment, U nonimmigrants family members. For the purposes of U–1 nonimmigrant will apply and must submit Form I–485. For those this analysis it is assumed that all of the submit Form I–485, and the prescribed family members in the United States 31,000 estimated applications submitted fee, although most U adjustments will who have never had U nonimmigrant per year under this rule will have to not occur until 3 years after the U-visa status, the U nonimmigrant may apply submit biometrics. Also, all of the 2,000 rule was effective. In year 3, therefore, for adjustment for those family members estimated annual Forms I–929 are additional fees expected to be collected by submitting Form I–929, after or estimated to require the collection of by USCIS under this rule are $9,300,000 concurrently with their own request for biometrics and payment of the ($930 fee for form I–485 × 10,000). adjustment of status submitted on Form applicable fee. The USCIS biometrics Results are expected to be similar in I–485 with both fees, plus the biometric services fee is $80. The resultant fee subsequent years. services fee or fee waiver requests. income will be $2,480,000. Interim relief. Approximately 5,412 Family members never admitted to Waiver of grounds of inadmissibility. people were granted deferred action and the United States. Qualifying family T nonimmigrants who apply for work authorization benefits by USCIS members who are present in the United adjustment of status may need an based on a determination that they were States may apply for immigrant visas on inadmissibility waiver before they may prima facie eligible for U nonimmigrant behalf of qualifying family members be granted adjustment of status. As a status prior to publication of the outside the United States. If the Form result, such applicants must submit regulations for U status. The U-visa rule I–929 is approved for such family Form I–601, Application for Waiver of provides that the time spent in interim members, the family members may go to Grounds of Inadmissibility, and pay the relief will be counted toward the 3-year a U.S. embassy or consulate to obtain applicable $545 fee or request a fee physical presence required for their immigrant visa. USCIS estimates waiver as outlined in 8 CFR 103.7(c). adjustment of status. Of those 5,412 that 20,000 people will apply for USCIS estimates that this requirement people, USCIS estimates that 2,100 will derivative U visas annually as will apply to about 2,000 have been continuously present for 3 nonresidents, because the principal can nonimmigrants who apply for years when this rule is published; 1,000 apply to bring a family member to the adjustment of status. Therefore, this will more will qualify in year 2 of this rule United States as soon as the principal result in additional fee collections per being effective. This will result in fee applies for a U nonimmigrant visa. It is year of $1,090,000. income from petitions for U adjustments logical that many aliens will do that on of $1,953,000 (2,100 × $930) in year 1, their initial Forms I–918 rather than 2. Benefits and $930,000 in year 2. The additional wait until they apply for a visa or seek The benefits of this rule stem mainly 1,312 will qualify in future years. to bring them to the United States after from an understanding of the problems Derivatives (U–2). The 10,000 per they apply for adjustment of status. that this rule and the underlying fiscal year limitation does not apply to Thus, it is estimated that only 2,000 of statutes are intended to address. spouses, children, parents, and the 20,000 people who will apply for U Trafficking. The U.S. government has unmarried siblings who are visas will have family members who condemned human trafficking as an accompanying or following to join the apply for this benefit, and that they will affront to human dignity and a heinous principal alien victim. Thus, it is only apply for an average of one family crime. By authorizing adjustment of estimated that relatives of U member each. Consequently, the new status for T and U nonimmigrants and nonimmigrants will apply for Form I–929, ‘‘Petition for Qualifying their eligible family members, this rule adjustment of status approximately 3 Family Member of a U–1 is another step in the U.S. government’s years following the effective date of Nonimmigrant,’’ will result in efforts to combat human trafficking in their approval for U nonimmigrant additional fee collections of about the United States. Recent cases point

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out the magnitude of human trafficking, • In 1997, the New York City Police alien crime victims, statistics efforts of law enforcement to combat the Department unearthed an immigrant maintained by DOJ have shown that problem, the personal toll it can take on smuggling scheme involving as many as aliens, especially those aliens without its victims, and the real need to address 62 deaf-mute Mexican immigrants who legal status, are often reluctant to help the problem: had been persuaded to come to the in the investigation or prosecution of • In January 2008, Jimmie Lee Jones United States with promises of jobs. crimes. U visas are intended to help was sentenced to serve 15 years on These immigrants were forced to beg on overcome this reluctance and aid law federal charges of conspiring to engage the streets of New York City for eighteen enforcement accordingly. hours a day, seven days a week and in sex trafficking and transporting 3. Costs young women across state lines for meet a $600 per week quota. They were purposes of prostitution. Jones subjected to beatings, electrocution, Government costs. This rule requires conspired to force six victims, including mental abuse, and sexual molestation. no outlays of congressionally- • two juveniles, to engage in commercial In 1995, El Monte, California police appropriated funds. The requirements of sex acts through force, fraud and raided a garment factory and discovered this rule and the associated benefits are coercion. He lured and recruited the 72 Thai nationals who had been lured funded by fees collected from persons minor and adult victims into to the United States with promises of requesting these benefits. The fees are prostitution with promises of legitimate employment, forced to work in a deposited into the Immigration modeling or exotic dancing work and garment shop up to eighteen hours a Examinations Fee Account. These fees used physical violence, threats of day, seven days a week, and were paid are used to fund the full cost of violence, deception, and other forms of less than sixty cents an hour. The processing immigration and coercion to compel the victims to work owners restrained them by threats and naturalization benefit applications and as prostitutes. physical violence. petitions, biometric services, and Moreover, human trafficking is often associated support services. • In 2005 in New Jersey, at least 30 intertwined with other illicit activities Paperwork costs. The T nonimmigrant girls and young women—some as young such as fraud, extortion, racketeering, adjustment of status provisions of this as 14—were smuggled from Honduras to money laundering, bribery of public rule will increase the information Hudson County, where they were forced officials, drug trafficking, document collection burden hours imposed on the into virtual slavery in bars and beaten forgery, and gambling. public. First, as indicated above, USCIS if they tried to leave. On July 21, 2005, Authorizing adjustment of status for estimates that 31,000 adjustment ten members of this smuggling ring were such victims uses USCIS benefits as part applications will be received per year. indicted. Subsequently, 3 traffickers of a collaborative federal effort USCIS estimates that each applicant were sentenced to the maximum incorporating immigration status issues, will need an average of 7.25 hours to sentence, 3 more traffickers have which are often at the forefront of a complete and submit the information entered guilty pleas and are awaiting victim’s concern. The VTVPA, as required under this rule. Thus, the sentencing and four more are awaiting amended, takes a victim-centered public burden (in hours) will increase trial in Honduras. approach to addressing trafficking. by approximately 224,750 burden hours • In January 2004, Juan Carlos Soto Trafficking victims are often reluctant to as a result of the additional Forms I–485 was sentenced to 23 years in prison for testify due to fear of reprisals against that will be submitted as a result of this smuggling women from Honduras and themselves or their family members, or rule. El Salvador into the U.S., and forcing fear of removal from the United States By adding the new Form I–929, the U them to stay in his so-called ‘‘safe to countries where they can face nonimmigrant adjustment of status houses’’ until they had ‘‘worked off’’ additional hardships, retribution, or provisions are estimated to add an their debt to him. During the day, these alienation. Additionally, trafficking estimated 2,000 applicants per year to women were forced to perform domestic victims not familiar with their rights the burden currently required for the U work, while at night they were may be afraid to report their abusers for visa program. USCIS estimates that it repeatedly raped and forced to provide fear of their own detention, prosecution, will require an average of one hour per sexual services. or deportation. This effort is coupled applicant to complete and submit the • In the largest trafficking case in U.S. with additional state and federal information required under this rule. history, Kil Soo Lee ran the Daewoosa criminal laws, government benefits, Thus, the public burden (in hours) will garment factory in American Samoa. services, and protections for victims. increase by approximately 2,000 burden The government charged that Kil By passing the VTVPA, and hours as a result of the additional Forms brought over 250 Vietnamese and subsequent amendments thereto, I–929 that will be submitted as a result Chinese nationals into American Samoa, Congress recognized that victims of of this rule. mostly young women, to work as sewing severe trafficking should be protected if USCIS estimates that 13,000 U–2 machine operators. Victims were held they assist in prosecution of the nonimmigrants will apply for for up to two years and forced to work traffickers, rather than be punished and employment authorization by through extreme food deprivation, deported for unlawful entry, or submitting Form I–765. The public beatings, and physical restraint. The unauthorized employment. The reporting burden for this form is victims were held in barracks on a protections provided by this law estimated to average 3 hours and 25 guarded company compound, address the lack of legal rights, minutes per response. Thus, the public threatened with confiscation of their protection, and access to the legal burden will increase by approximately passports, deportation, economic system because of the illegal presence of 44,417 hours as a result of the bankruptcy, severe economic hardship trafficking victims. additional Forms I–765 that will be to family members, false arrest, and Violent crime. Congress created the U submitted as a result of this rule. other consequences. On February 21, nonimmigrant status (‘‘U visa’’) to USCIS estimates that it also will 2003, Kil was convicted of numerous provide immigration protection to crime receive about 2,970 requests per year for federal criminal violations, including victims who assist in the investigation advance parole, on average, beginning involuntary servitude, and was later and prosecution of those crimes. in the third year following the effective sentenced to 40 years in prison. Although there are no specific data on date of this rule that would not be

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received otherwise. The public but for the numerical cap. Approvable • The estimated fees to be collected reporting burden for Form I–131 is petitions reviewed after the numerical as a result of this rule will be estimated to average 55 minutes per cap has been reached will be placed on approximately $2,955,880 in the first application. Thus, the public burden a waiting list, and written notice will be year after this rule is published, will increase by approximately 2,723 sent to the petitioners. Priority on the $1,932,880 in the second year, and an burden hours as a result of the waiting list will be based upon the date average about $32,472,880 per year in additional Forms I–131 that will be on which the petition is filed. At the the third and subsequent years after submitted as a result of this rule. beginning of the next fiscal year, taking effect. For the estimate of the per hour cost petitions on the waiting list will be • No more than 5,000 T–1 principal of time spent on the forms resulting granted first. Advantages to this aliens may have their status adjusted to from this rule, USCIS used the hourly approach include allowing the alien that of a lawful permanent resident in wage from the Bureau of Labor victim to remain in the United States to a given fiscal year, but this numerical Statistics, Employment Cost Trends, assist in the investigation or prosecution limitation does not apply to adjustment Private Industry, All Workers, Wages of criminal activity. If petitions for of status of U nonimmigrants or and Salaries, Cost of Compensation adjustment of status exceed the annual qualifying relatives of T or U (Cost per hour worked), Third Quarter, cap, USCIS must maintain a waiting list; nonimmigrants. 2006. That figure is $18.04 per hour. however, that is not projected to occur. • An estimated 330 T nonimmigrants Thus, the paperwork burden that this Thus, incremental implementation and are expected to apply for adjustment of rule adds on the public is estimated to additional alternatives were not status in the year following the effective cost respondents $4,940,976 in time considered or analyzed. date of this rule. spent on preparing and submitting the U nonimmigrant adjustment of status: • × An estimated 286 family members required information [$18.04 273,890 The number of grants of U of T nonimmigrants are expected to (224,750 + 2,000 + 44,417 + 2,723)]. nonimmigrant status that may be made apply for adjustment of status in the in a fiscal year is limited by an annual 4. Analysis of Alternatives year following the effective date of this cap of 10,000. In the U nonimmigrant rule. Some alternatives exist as cost- rule, USCIS decided to adjudicate • effective means for administering the T After the U nonimmigrant rule has petitions on a first in, first out basis been in effect for 3 years, an estimated and U nonimmigrant adjustment with additional procedures for petitions provisions from the standpoint of 10,000 principal U nonimmigrants are received after the numerical cap has expected to apply for adjustment of government outlays and burden on been reached. There are no numerical applicants. However, many alternatives status. caps on the applications for adjustment • An estimated 20,000 relatives of U are not realistic if USCIS is to achieve of status for U nonimmigrants. its legislative mandate and when nonimmigrants will apply for Therefore, adjustment of status adjustment of status within considered in the interest of consistency applications from U nonimmigrants and with how the current T and U approximately 3 years following receipt their derivatives will be handled on a of derivative U nonimmigrant status. nonimmigrant programs are first in, first out basis, with no • An estimated 2,000 aliens will administered. procedures for dealing with U apply for immigrant visas or adjustment T nonimmigrant adjustment of status: adjustment retrogression.4 Additional of status under special provisions for No more than 5,000 T–1 principal aliens alternatives that would have provided certain family members of aliens who may have their status adjusted to that of that applications for adjustment of adjusted their status as U a lawful permanent resident in a given status from U nonimmigrants would be nonimmigrants where the qualifying fiscal year (October 1 through handled differently than those of U family members are not physically September 30). This numerical nonimmigrants were not considered. limitation does not apply to relatives in present in the United States or are in the derivative status who seek adjustment of 5. Summary United States, but not currently in U status. Therefore, the potential exists The provisions of this rule are nonimmigrant status. • that the number of approvable petitions essential to the effective administration With respect to the paperwork per fiscal year will exceed the numerical of the T and U nonimmigrant burden on the public, this rule is limit (i.e., cap). However, USCIS has not adjustment of status provisions. This estimated to cost respondents come close to reaching the cap in all of rule will further humanitarian interests $4,940,976 in time spent on preparing the fiscal years combined since the T by protecting victims of human and submitting the required nonimmigrant rule was promulgated 4.5 trafficking and victims of other serious information. years ago. Since that time, only 787 crimes who have provided assistance to This rule requires no outlay of aliens have been granted principal T–1 U.S. law enforcement in the congressionally-appropriated funds. All nonimmigrant status. Thus, it is investigation or prosecution of such costs will be covered by fees collected unlikely that the numerical cap will be crimes. Also, this rule will strengthen by the agency. reached in any fiscal year in the near the ability of the law enforcement F. Executive Order 13132 (Federalism) future. agencies to investigate and prosecute USCIS did not consider alternatives to crimes by providing immigration This rule will not have substantial handling applications for adjustment of benefits to victims. direct effects on the States, on the status. Ease of administration dictates The estimated economic effects of this relationship between the National that adjustment of status applications rule are summarized as follows: Government and the States, or on the from T nonimmigrants would be best distribution of power and handled on a first in, first out basis, 4 When visas are limited by statute, a petitioner’s responsibilities among the various because that is the way applications for priority is determined by the date the petition was levels of government. Therefore, in T status are currently handled. If filed and visas are often available only to applicants accordance with section 6 of Executive whose priority dates are before a certain cut-off petitions are received after the limit is date. This roll-back in priority dates is what is Order 13132, it is determined that this reached, they will be reviewed to commonly referred to as ‘‘visa number rule does not have sufficient federalism determine whether they are approvable retrogression.’’ implications to warrant the preparation

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of a federalism summary impact have to be increased to reflect the USCIS is requesting comments on these statement. increase in the number of respondents two information collections until and burden hours as a result of this rule. February 10, 2009. When submitting G. Executive Order 12988 (Civil Justice In addition, since this rule requires comments on the information Reform) applicants submitting those forms to collection(s), your comments should This rule meets the applicable pay the corresponding fees, the annual address one or more of the following standards set forth in sections 3(a) and costs for these information collections four points: 3(b)(2) of Executive Order 12988. will also increase. Accordingly, USCIS (1) Evaluate whether the collection of H. Family Assessment has submitted an update for the annual information is necessary for the proper cost burden and number of respondents performance of the agency, including I have reviewed this regulation and using OMB’s automated Office of whether the information will have determined that it may affect family Information and Regulatory Affairs practical utility; well-being as that term is defined in Consolidated Information System (2) Evaluate the accuracy of the section 654 of the Treasury General (ROCIS). agency’s estimate of the burden of the Appropriations Act, 1999, Public Law Additionally, USCIS will make non- collection of information, including the No. 105–277, Div. A. Accordingly, I substantive minor edits to Forms I–131, validity of the methodology and have assessed this action in accordance I–601, and I–765, to reflect the new assumptions used; with the criteria specified by section usage by T and U nonimmigrants (3) Enhance the quality, utility, and 654(c)(1). This regulation will positively applying for adjustment of status. These clarity of the information to be affect family well-being by encouraging forms, with the minor edits, have been collected; and vulnerable individuals who have been submitted to OMB for review and (4) Minimize the burden of the victims of a severe form of trafficking in approval. collection of the information on those persons or other specified criminal This interim rule permits certain T who are to respond, including through activity to report the trafficking and and U nonimmigrants to adjust their the use of any and all appropriate criminal activity and to aid law status to that of lawful permanent automated, electronic, mechanical, or enforcement in the investigation and residents. In addition to the evidence other technological collection prosecution of cases and by providing required by Form I–485, this rule at 8 techniques or other forms of information critical assistance and benefits to CFR 245.23(a) requires T adjustment technology, e.g., permitting electronic victims. Additionally, this regulation applicants to demonstrate continuous submission of responses. provides the means for both victims and physical presence in the United States Overview of Information Collection qualified family members to adjust their for a requisite period, good moral for Form I–485, and Supplement A, and status to lawful permanent residence, character for a requisite period, and Supplement E: thereby ensuring family unity and continued cooperation with law a. Type of information collection: stability. enforcement authorities or extreme Revision of currently approved collection. I. Paperwork Reduction Act of 1995 hardship, by supplying the evidence outlined in 8 CFR 245.23(e)(2). For U b. Title of Form/Collection: Under the Paperwork Reduction Act adjustment applicants, in addition to Application to Register Permanent of 1995, Public Law 104–13, 109 Stat. the evidence required by Form I–485, Residence or Adjust Status. 163 (1995) (PRA), all Departments are the rule at 8 CFR 245.24(a) requires c. Agency form number, if any, and required to submit to the Office of applicants to demonstrate continuous the applicable component of the Management and Budget (OMB), for physical presence for at least 3 years Department of Homeland Security review and approval, any reporting or and that they have not unreasonably sponsoring the collection: Form I–485, record-keeping requirements inherent in refused to provide assistance in the and Supplement A and E; U.S. a rule. The information collection criminal investigation or prosecution by Citizenship and Immigration Services. requirements contained in this rule have supplying the evidence outlined in 8 d. Affected public who will be asked been cleared by OMB under the CFR 245.24(d)(1) and 245.24(e)(2). or required to respond, as well as a brief provisions of the Paperwork Reduction These additional documentation abstract: Individuals. Sections 245(l) Act. 44 U.S.C. Chapter 35; 5 CFR 1320. requirements are considered an and (m) of the Act allow certain T and Clearance numbers for these collections information collection and will be U nonimmigrants to adjust status to that are contained in 8 CFR 299.5, Display included on new Supplement E to Form of lawful permanent residents. This Control Numbers and are noted herein. I–485. interim rule designates Form I–485 as Form I–131, Application for Travel This rule also requires that U–1 the form for use by applicants for such Document, OMB Control Number 1615– nonimmigrants who are applying for benefits. (Supplement A of Form I–485 0013; Form I–290B, Notice of Appeal to adjustment of status and wish to is used by persons seeking to adjust the Administrative Appeals Office, petition for immigrant visas or lawful their status under the provisions of OMB Control Number 1615–0095; Form permanent residence on behalf of family section 245(i) of the Act and therefore I–485, Application to Register members who have never held U will not be used by T and U Permanent Residence or Adjust Status, nonimmigrant status submit new Form nonimmigrants who are applying to OMB Control Number 1615–0023; Form I–929, Petition for Qualifying Family adjust their status.) Supplement E of I–601, Application for Waiver of Member of a U–1 Nonimmigrant, with Form I–485 provides additional Grounds of Excludability, OMB Control fee in accordance with the instructions instructions to T and U nonimmigrants Number 1615–0029; Form I–765, on the form. This requirement is seeking to adjust their status and Application for Employment considered a new information includes documentation requirements Authorization, OMB Control Number collection. not found on Form I–485 itself. The 1615–0040. Since this is an interim rule, these information collection is necessary in However, the current number of information collections have been order for USCIS to make a respondents listed for these information submitted and approved by OMB under determination that the eligibility collections on the OMB’s inventory of the emergency review and clearance requirements and conditions are met approved information collections will procedures covered under the PRA. regarding the applicant.

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e. An estimate of the total number of information, Immigration, Privacy, N–470; Form N–565; Form N–600; Form respondents and the amount of time Reporting and recordkeeping N–600K; and Form I–290B and motions estimated for an average respondent to requirements, Surety bonds. filed with U.S. Citizenship and respond: Form I–485—617,033 Immigration Services relating to the 8 CFR Part 212 respondents at 6.25 hours per response, specified forms in this paragraph (c); Supplement A—3,888 respondents at Administrative practice and and 0.216 hours per response, Supplement procedure, Aliens, Immigration, (ii) Only in the case of an alien in E—33,112 at 0.75 hours per response. Passports and visas, Reporting and lawful nonimmigrant status under f. An estimate of the total of public recordkeeping requirements. sections 101(a)(15)(T) or (U) of the Act; burden (in hours) associated with the 8 CFR Part 214 an applicant under section 209(b) of the collection: Approximately 3,882,129 Act; an approved VAWA self-petitioner; burden hours. Administrative practice and or an alien to whom section 212(a)(4) of Overview of Information Collection procedure, Aliens, Employment, the Act does not apply with respect to for Form I–929: Foreign officials, Health professions, adjustment of status: Form I–485 and a. Type of information collection: Reporting and recordkeeping Form I–601; and New information collection. requirements, Students. (iii) Form I–192 and Form I–193 (only b. Title of Form/Collection: Petition 8 CFR Part 245 in the case of an alien applying for for Qualifying Family Member of a lawful nonimmigrant status under U–1 Nonimmigrant. Aliens, Immigration, Reporting and sections 101(a)(15)(T) or (U)). recordkeeping requirements. c. Agency form number, if any, and * * * * * the applicable component of the 8 CFR Part 299 Department of Homeland Security PART 212—DOCUMENTARY Immigration, Reporting and sponsoring the collection: Form I–929; REQUIREMENTS: NONIMMIGRANTS; recordkeeping requirements. U.S. Citizenship and Immigration WAIVERS; ADMISSION OF CERTAIN ■ Services. Accordingly, chapter I of title 8 of the INADMISSIBLE ALIENS; PAROLE d. Affected public who will be asked Code of Federal Regulations is amended ■ or required to respond, as well as a brief as follows: 3. The authority citation for part 212 continues to read as follows: abstract: Individuals. Section 245(m) of PART 103—POWERS AND DUTIES; the Act allows certain qualifying family AVAILABILITY OF RECORDS Authority: 8 U.S.C. 1101, 1102, 1103, 1182, members who have never held U 1184, 1187, 1225, 1226, 1227; 8 CFR part 2. ■ nonimmigrant status to seek lawful 1. The authority citation for part 103 ■ 4. Section 212.18 is added to read as permanent residence or apply for continues to read as follows: follows: immigrant visas. Before such family Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. members may apply for adjustment of 1101, 1103, 1304, 1356; 31 U.S.C. 9701; Pub. § 212.18 Applications for waivers of status or seek immigrant visas, the L. 107–296, 116 Stat. 2135 (6 U.S.C. 1 et inadmissibility in connection with an U–1 nonimmigrant who has been seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, application for adjustment of status by T granted adjustment of status must file an 1982 Comp., p. 166; 8 CFR part 2. nonimmigrant status holders. immigrant petition on behalf of the (a) Filing the waiver application. An ■ 2. Section 103.7 is amended by qualifying family member using Form alien applying for a waiver of revising the entry for Form I–601 and I–929. The information collection is inadmissibility under section 245(l)(2) adding the entry for ‘‘Form I–929’’ in necessary in order for USCIS to make a of the Act in connection with an proper alpha-numeric sequence in determination that the eligibility application for adjustment of status paragraph (b)(1), and revising paragraph requirements and conditions are met under 8 CFR 245.23(a) or (b) must (c)(5) to read as follows: regarding the qualifying family member. submit: e. An estimate of the total number of § 103.7 Fees. (1) A completed Form I–485 application package; respondents and the amount of time * * * * * estimated for an average respondent to (2) The appropriate fee in accordance (b) * * * with 8 CFR 103.7(b)(1) or an application respond: 2,000 respondents at 1 hour (1) * * * per response. for a fee waiver; and, as applicable, Form I–601. For filing an application (3) Form I–601, Application for f. An estimate of the total of public for waiver of ground of burden (in hours) associated with the Waiver of Grounds of Excludability. inadmissibility—$545. (b) Treatment of waiver application. collection: Approximately 2,000 burden * * * * * (1) USCIS may not waive an applicant’s hours. Form I–929. For U–1 principal inadmissibility under sections 212(a)(3), All comments and suggestions or applicant to submit for each qualifying 212(a)(10)(C), or 212(a)(10)(E) of the Act. questions regarding additional family member who plans to seek an (2) If an applicant is inadmissible information should be directed to the immigrant visa or adjustment of U under sections 212(a)(1) or (4) of the Department of Homeland Security, U.S. status—$215. Act, USCIS may waive such Citizenship and Immigration Services, * * * * * inadmissibility if it determines that Regulatory Management Division, 111 (c) * * * granting a waiver is in the national Massachusetts Avenue, NW., 3rd Floor, (5) No fee relating to any application, interest. Washington, DC 20529, Attention: petition, appeal, motion, or request (3) If any other provision of section Chief, 202–272–8377. made to U.S. Citizenship and 212(a) renders the applicant List of Subjects Immigration Services may be waived inadmissible, USCIS may grant a waiver under paragraph (c)(1) of this section of inadmissibility if the activities 8 CFR Part 103 except for the following: rendering the alien inadmissible were Administrative practice and (i) Biometrics; Form I–90; Form I–751; caused by or were incident to the procedure, Authority delegations Form I–765; Form I–817; I–929; Form victimization and USCIS determines (Government agencies), Freedom of N–300; Form N–336; Form N–400; Form that it is in the national interest to waive

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the applicable ground or grounds of 8 CFR 245.23 shall remain eligible for until the conclusion of adjudication of inadmissibility. adjustment of status. the application, complied with any (c) Other waivers. Nothing in this * * * * * reasonable request for assistance in the section shall be construed as limiting an investigation or prosecution of acts of alien’s ability to apply for any other PART 245—ADJUSTMENT OF STATUS trafficking, as defined in 8 CFR waivers of inadmissibility for which he TO THAT OF PERSON ADMITTED FOR 214.11(a), or or she may be eligible. PERMANENT RESIDENCE (ii) Would suffer extreme hardship involving unusual and severe harm (d) Revocation. The Secretary of ■ 7. The authority citation for part 245 upon removal from the United States, as Homeland Security may, at any time, continues to read as follows: revoke a waiver previously granted provided in 8 CFR 214.11(i). through the procedures described in 8 Authority: 8 U.S.C. 1101, 1103, 1182, 1255; (b) Eligibility of derivative family CFR 103.5. sec. 202, Pub. L. 105–100, 111 Stat. 2160, members. A derivative family member 2193; sec. 902, Pub. L. 105–277, 112 Stat. of a T–1 nonimmigrant status holder PART 214—NONIMMIGRANT CLASSES 2681; 8 CFR part 2. may be granted adjustment of status to ■ 8. Section 245.23 is added to read as that of an alien lawfully admitted for ■ 5. The authority citation for part 214 follows: permanent residence, provided: continues to read as follows: (1) The T–1 principal nonimmigrant § 245.23 Adjustment of aliens in T has applied for adjustment of status Authority: 8 U.S.C. 1101, 1102, 1103, 1182, nonimmigrant classification. 1184, 1185 (pursuant to E.O. 13323, 69 FR under this section and meets the 241), 1186a, 1187, 1221, 1281, 1282, 1301– (a) Eligibility of principal T–1 eligibility requirements described under 1305, 1372, 1379, 1731–32, section 643, Pub. applicants. Except as described in subsection (a); L. 104–208, 110 Stat. 3009–708; 48 U.S.C. paragraph (c) of this section, an alien (2) The derivative family member was 1901, note, and 1931 note; 8 CFR part 2. may be granted adjustment of status to lawfully admitted to the United States that of an alien lawfully admitted for in T–2, T–3, T–4, or T–5 nonimmigrant ■ 6. Sections 214.11(p)(1) and (2) are permanent residence, provided the status as the spouse, parent, sibling, or revised to read as follows: alien: child of a T–1 nonimmigrant, and (1) Applies for such adjustment; continues to hold such status at the time § 214.11 Alien victims of severe forms of (2)(i) Was lawfully admitted to the of application; trafficking in persons. United States as a T–1 nonimmigrant, as (3) The derivative family member has * * * * * defined in 8 CFR 214.11(a)(2); and (ii) Continues to hold such status at applied for such adjustment; and (p) Duration of T nonimmigrant (4) The derivative family member is status. the time of application, or accrued 4 years in T–1 nonimmigrant status and admissible to the United States under (1) In general. An approved T files a complete application before April the Act, or otherwise has been granted nonimmigrant status shall expire after 4 13, 2009; a waiver by USCIS of any applicable years from the date of approval. The (3) Has been physically present in the ground of inadmissibility, at the time of status may be extended if a Federal, United States for a continuous period of examination for adjustment. State, or local law enforcement official, at least 3 years since the first date of (c) Exceptions. An alien is not eligible prosecutor, judge, or other authority lawful admission as a T–1 for adjustment of status under investigating or prosecuting activity nonimmigrant or has been physically paragraphs (a) or (b) of this section if: relating to human trafficking certifies present in the United States for a (1) The alien’s T nonimmigrant status that the presence of the alien in the continuous period during the has been revoked pursuant to 8 CFR United States is necessary to assist in investigation or prosecution of acts of 214.11(s); the investigation or prosecution of such trafficking and the Attorney General has (2) The alien is described in sections activity. At the time an alien is determined that the investigation or 212(a)(3), 212(a)(10)(C), or 212(a)(10)(E) approved for T nonimmigrant status or prosecution is complete, whichever of the Act; or receives an extension, USCIS shall period of time is less; provided that if (3) The alien is inadmissible under notify the alien when his or her the applicant has departed from the any other provisions of section 212(a) of nonimmigrant status will expire. The United States for any single period in the Act and has not obtained a waiver applicant shall immediately notify excess of 90 days or for any periods in of inadmissibility in accordance with 8 USCIS of any changes in the applicant’s the aggregate exceeding 180 days, the CFR 212.18 or 214.11(j). Where the circumstances that may affect eligibility applicant shall be considered to have applicant establishes that the under section 101(a)(15)(T)(i) of the Act failed to maintain continuous physical victimization was a central reason for and this section. presence in the United States for the applicant’s unlawful presence in the (2) Information pertaining to purposes of section 245(l)(1)(A) of the United States, section 212(a)(9)(B)(iii) of adjustment of status. USCIS will notify Act; the Act is not applicable, and the an alien granted T nonimmigrant status (4) Is admissible to the United States applicant need not obtain a waiver of of the requirement to timely apply for under the Act, or otherwise has been that ground of inadmissibility. The adjustment of status, and that the failure granted a waiver by USCIS of any applicant, however, must submit with to apply for adjustment of status in applicable ground of inadmissibility, at the Form I–485 evidence sufficient to accordance with 8 CFR 245.23 will the time of examination for adjustment; demonstrate that the victimization result in termination of the alien’s T (5) Has been a person of good moral suffered was a central reason for the nonimmigrant status at the end of the 4- character since first being lawfully unlawful presence in the United States. year period unless that status is admitted as a T–1 nonimmigrant and To qualify for this exception, the extended in accordance with paragraph until USCIS completes the adjudication victimization need not be the sole (p)(1) of this section. Aliens who of the application for adjustment of reason for the unlawful presence but the properly apply for adjustment of status status; and nexus between the victimization and the to that of a person admitted to (6)(i) Has, since first being lawfully unlawful presence must be more than permanent residence in accordance with admitted as a T–1 nonimmigrant and tangential, incidental, or superficial.

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(d) Jurisdiction. USCIS shall (i) Evidence, including an affidavit demonstrate that the denial of determine whether a T–1 applicant for from the applicant and a photocopy of adjustment of status would result in adjustment of status under this section all pages of all of the applicant’s exceptional and extremely unusual was lawfully admitted as a T–1 passports valid during the required hardship. Moreover, depending on the nonimmigrant and continues to hold period (or equivalent travel document or gravity of the adverse factors, such a such status, has been physically present a valid explanation of why the applicant showing might still be insufficient. For in the United States during the requisite does not have a passport), that he or she example, only the most compelling period, is admissible to the United has been continuously physically positive factors would justify a favorable States or has otherwise been granted a present in the United States for the exercise of discretion in cases where the waiver of any applicable ground of requisite period as described in applicant has committed or been inadmissibility, and has been a person paragraph (a)(2) of this section. convicted of a serious violent crime, a of good moral character during the Applicants should submit evidence crime involving sexual abuse committed requisite period. The Attorney General described in 8 CFR 245.22. A signed upon a child, or multiple drug-related shall determine whether the applicant statement from the applicant attesting to crimes, or where there are security- or received a reasonable request for the applicant’s continuous physical terrorism-related concerns. assistance in the investigation or presence alone will not be sufficient to (f) Assistance in the investigation or prosecution of acts of trafficking as establish this eligibility requirement. If prosecution or a showing of extreme defined in 8 CFR 214.11(a), and, if so, additional documentation is not hardship. Each T–1 principal applicant whether the applicant complied in such available, the applicant must explain must establish, to the satisfaction of the request. If the Attorney General why in an affidavit and provide Attorney General, that since having determines that the applicant failed to additional affidavits from others with been lawfully admitted as a T–1 comply with any reasonable request for first-hand knowledge who can attest to nonimmigrant and up until the assistance, USCIS shall deny the the applicant’s continuous physical adjudication of the application, he or application for adjustment of status presence by specific facts. she complied with any reasonable unless USCIS finds that the applicant (A) If the applicant has departed from request for assistance in the would suffer extreme hardship and returned to the United States while investigation or prosecution of the acts involving unusual and severe harm in T–1 nonimmigrant status, the of trafficking, as defined in 8 CFR upon removal from the United States. applicant must submit supporting 214.11(a), or establish, to the (e) Application. evidence showing the dates of each satisfaction of USCIS, that he or she (1) General. Each T–1 principal departure from the United States and would suffer extreme hardship applicant and each derivative family the date, manner and place of each involving unusual and severe harm member who is applying for adjustment return to the United States. upon removal from the United States. of status must file Form I–485, (B) Applicants applying for (1) Each T–1 applicant for adjustment Application to Register Permanent adjustment of status under this section of status under section 245(l) of the Act Residence or Adjust Status, and who have less than 3 years of must submit a document issued by the (i) Accompanying documents, in continuous physical presence while in Attorney General or his designee accordance with the form instructions; T–1 nonimmigrant status must submit a certifying that the applicant has (ii) The fee prescribed in 8 CFR document signed by the Attorney complied with any reasonable requests 103.7(b)(1) or an application for a fee General or his designee, attesting that for assistance in the investigation or waiver; the investigation or prosecution is prosecution of the human trafficking (iii) The biometric services fee complete. offenses during the requisite period; or prescribed by 8 CFR 103.7(b)(1) or an (ii) Evidence of good moral character (2) In lieu of showing continued application for a fee waiver; in accordance with paragraph (g) of this compliance with requests for assistance, (iv) A photocopy of the alien’s Form section; and an applicant may establish, to the I–797, Notice of Action, granting T (iii)(A) Evidence that the alien has satisfaction of USCIS, that he or she nonimmigrant status; complied with any reasonable request would suffer extreme hardship (v) A photocopy of all pages of the for assistance in the investigation or involving unusual and severe harm alien’s most recent passport or an prosecution of the trafficking as upon removal from the United States. explanation of why the alien does not described in paragraph (f)(1) of this The hardship determination will be have a passport; section since having first been lawfully evaluated on a case-by-case basis, in (vi) A copy of the alien’s Form I–94, admitted in T–1 nonimmigrant status accordance with the factors described in Arrival-Departure Record; and and until the adjudication of the 8 CFR 214.11(i). Where the basis for the (vii) Evidence that the applicant was application; or hardship claim represents a lawfully admitted in T nonimmigrant (B) Evidence that the alien would continuation of the hardship claimed in status and continues to hold such status suffer extreme hardship involving the application for T nonimmigrant at the time of application. For T unusual and severe harm if removed status, the applicant need not re- nonimmigrants who traveled outside the from the United States as described in document the entire claim, but rather United States and re-entered using an paragraph (f)(2) of this section. may submit evidence to establish that advance parole document issued under (3) Evidence relating to discretion. the previously established hardship is 8 CFR 245.2(a)(4)(ii)(B), the date that the Each T applicant bears the burden of ongoing. However, in reaching its alien was first admitted in lawful T showing that discretion should be decision regarding hardship under this status will be the date of admission for exercised in his or her favor. Where section, USCIS is not bound by its purposes of this section, regardless of adverse factors are present, an applicant previous hardship determination made how the applicant’s Form I–94 ‘‘Arrival- may offset these by submitting under 8 CFR 214.11(i). Departure Record’’ is annotated. supporting documentation establishing (g) Good moral character. A T–1 (2) T–1 principal applicants. In mitigating equities that the applicant nonimmigrant applicant for adjustment addition to the items in paragraph (e)(1) wants USCIS to consider. Depending on of status under this section must of this section, T–1 principal applicants the nature of adverse factors, the demonstrate that he or she has been a must submit: applicant may be required to clearly person of good moral character since

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first being lawfully admitted as a T–1 section departs the United States, he or (1) Continuous Physical Presence nonimmigrant and until USCIS she shall be deemed to have abandoned means the period of time that the alien completes the adjudication of their the application, and it will be denied. If, has been physically present in the applications for adjustment of status. however, the applicant is not under United States and must be a continuous Claims of good moral character will be exclusion, deportation, or removal period of at least 3 years since the date evaluated on a case-by-case basis, taking proceedings, and he or she filed a Form of admission as a U nonimmigrant into account section 101(f) of the Act I–131, Application for Travel Document, continuing through the date of the and the standards of the community. in accordance with the instructions on conclusion of adjudication of the The applicant must submit evidence of the form, or any other appropriate form, application for adjustment of status. If good moral character as follows: and was granted advance parole by the alien has departed from the United (1) An affidavit from the applicant USCIS for such absences, and was States for any single period in excess of attesting to his or her good moral inspected and paroled upon returning to 90 days or for any periods in the character, accompanied by a local police the United States, he or she will not be aggregate exceeding 180 days, the clearance or a state-issued criminal deemed to have abandoned the applicant must include a certification background check from each locality or application. If the adjustment of status from the agency that signed the Form state in the United States in which the application of such an individual is I–918, Supplement B, in support of the applicant has resided for 6 or more subsequently denied, he or she will be alien’s U nonimmigrant status that the months during the requisite period in treated as an applicant for admission absences were necessary to assist in the continued presence or T–1 subject to sections 212 and 235 of the criminal investigation or prosecution or nonimmigrant status. Act. If an applicant for adjustment of were otherwise justified. (2) If police clearances, criminal status under this section is under (2) Qualifying Family Member means background checks, or similar reports exclusion, deportation, or removal a U–1 principal applicant’s spouse, are not available for some or all proceedings, USCIS will deem the child, or, in the case of an alien child, locations, the applicant may include an application for adjustment of status a parent who has never been admitted explanation and submit other evidence abandoned as of the moment of the to the United States as a nonimmigrant with his or her affidavit. applicant’s departure from the United under sections 101(a)(15)(U) and 214(p) (3) USCIS will consider other credible States. of the Act. evidence of good moral character, such (k) Inapplicability of 8 CFR 245.1 and (3) U Interim Relief means deferred as affidavits from responsible persons 245.2. Sections 245.1 and 245.2 of this action and work authorization benefits who can knowledgeably attest to the chapter do not apply to aliens seeking provided by USCIS or the Immigration applicant’s good moral character. adjustment of status under this section. and Naturalization Service to applicants (4) An applicant who is under 14 (l) Annual cap of T–1 principal for U nonimmigrant status deemed years of age is generally presumed to be applicant adjustments. (1) General. The prima facie eligible for U nonimmigrant a person of good moral character and is total number of T–1 principal applicants status prior to publication of the U not required to submit evidence of good whose status is adjusted to that of nonimmigrant status regulations. moral character. However, if there is lawful permanent residents under this (4) U Nonimmigrant means an alien reason to believe that an applicant who section may not exceed the statutory cap who is in lawful U–1, U–2, U–3, U–4, is under 14 years of age may lack good in any fiscal year. or U–5 status. moral character, USCIS may require (2) Waiting list. All eligible applicants (5) Refusal to Provide Assistance in a evidence of good moral character. who, due solely to the limit imposed in Criminal Investigation or Prosecution is (h) Filing and decision. An section 245(l)(4) of the Act and the refusal by the alien to provide application for adjustment of status paragraph (m)(1) of this section, are not assistance to a law enforcement agency from a T nonimmigrant under section granted adjustment of status will be or official that had responsibility for the 245(l) of the Act shall be filed with the placed on a waiting list. USCIS will investigation or prosecution of persons USCIS office identified in the send the applicant written notice of in connection with the qualifying instructions to Form I–485. Upon such placement. Priority on the waiting criminal activity after the alien was approval of adjustment of status under list will be determined by the date the granted U nonimmigrant status. The this section, USCIS will record the application was properly filed, with the Attorney General will determine alien’s lawful admission for permanent oldest applications receiving the highest whether the alien’s refusal was residence as of the date of such approval priority. In the following fiscal year, unreasonable under the totality of the and will notify the applicant in writing. USCIS will proceed with granting circumstances based on all available Derivative family members’ applications adjustment of status to applicants on the affirmative evidence. The Attorney may not be approved before the waiting list who remain admissible and General may take into account such principal applicant’s application is eligible for adjustment of status in order factors as general law enforcement, approved. of highest priority until the available prosecutorial, and judicial practices; the (i) Denial. If the application for numbers are exhausted for the given kinds of assistance asked of other adjustment of status or the application fiscal year. After the status of qualifying victims of crimes involving an element for a waiver of inadmissibility is denied, applicants on the waiting list has been of force, coercion, or fraud; the nature USCIS will notify the applicant in adjusted, any remaining numbers for of the request to the alien for assistance; writing of the reasons for the denial and that fiscal year will be issued to new the nature of the victimization; the of the right to appeal the decision to the qualifying applicants in the order that applicable guidelines for victim and Administrative Appeals Office (AAO) the applications were properly filed. witness assistance; and the specific pursuant to the AAO appeal procedures ■ 9. Section 245.24 is added to read as circumstances of the applicant, found at 8 CFR 103.3. Denial of the T– follows: including fear, severe traumatization 1 principal applicant’s application will (both mental and physical), and the age result in the automatic denial of a § 245.24 Adjustment of aliens in U and maturity of the applicant. derivative family member’s application. nonimmigrant status. (b) Eligibility of U Nonimmigrants. (j) Effect of Departure. If an applicant (a) Definitions. As used in this Except as described in paragraph (c) of for adjustment of status under this section, the term: this section, an alien may be granted

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adjustment of status to that of an alien the period that the applicant was in U of the adverse factors, the applicant may lawfully admitted for permanent nonimmigrant status; and be required to clearly demonstrate that residence, provided the alien: (iii) If the applicant has been absent the denial of adjustment of status would (1) Applies for such adjustment; from the United States for any period in result in exceptional and extremely (2)(i) Was lawfully admitted to the excess of 90 days or for any periods in unusual hardship. Moreover, depending United States as either a U–1, U–2, U– the aggregate of 180 days or more, a on the gravity of the adverse factors, 3, U–4 or U–5 nonimmigrant, as defined certification from the investigating or such a showing might still be in 8 CFR 214.1(a)(2), and prosecuting agency that the absences insufficient. For example, USCIS will (ii) Continues to hold such status at were necessary to assist in the generally not exercise its discretion the time of application; or accrued at investigation or prosecution of the favorably in cases where the applicant least 4 years in U interim relief status criminal activity or were otherwise has committed or been convicted of a and files a complete adjustment justified; serious violent crime, a crime involving application within 120 days of the date (6) A copy of the alien’s Form I–94, sexual abuse committed upon a child, or of approval of the Form I–918, Petition Arrival-Departure Record; multiple drug-related crimes, or where for U Nonimmigrant Status; (7) Evidence that the applicant was there are security- or terrorism-related (3) Has continuous physical presence lawfully admitted in U nonimmigrant concerns. for 3 years as defined in paragraph (a)(1) status and continues to hold such status (e) Continued assistance in the of this section; at the time of application; investigation or prosecution. Each (4) Is not inadmissible under section (8) Evidence pertaining to any request applicant for adjustment of status under 212(a)(3)(E) of the Act; made to the alien by an official or law section 245(m) of the Act must provide (5) Has not unreasonably refused to enforcement agency for assistance in an evidence of whether or not any request provide assistance to an official or law investigation or prosecution of persons was made to the alien to provide enforcement agency that had in connection with the qualifying assistance, after having been lawfully responsibility in an investigation or criminal activity, and the alien’s admitted as a U nonimmigrant, in an prosecution of persons in connection response to such request; investigation or prosecution of persons with the qualifying criminal activity (9) Evidence, including an affidavit in connection with the qualifying after the alien was granted U from the applicant, that he or she has criminal activity, and his or her nonimmigrant status, as determined by continuous physical presence for at response to any such requests. the Attorney General, based on least 3 years as defined in paragraph (1) An applicant for adjustment of affirmative evidence; and (a)(1) of this section. Applicants should status under section 245(m) of the Act (6) Establishes to the satisfaction of submit evidence described in 8 CFR may submit a document signed by an the Secretary that the alien’s presence in 245.22. A signed statement from the official or law enforcement agency that the United States is justified on applicant attesting to continuous had responsibility for the investigation humanitarian grounds, to ensure family physical presence alone will not be or prosecution of persons in connection unity, or is in the public interest. sufficient to establish this eligibility with the qualifying criminal activity, (c) Exception. An alien is not eligible requirement. If additional affirming that the applicant complied for adjustment of status under paragraph documentation is not available, the with (or did not unreasonably refuse to (b) of this section if the alien’s U applicant must explain why in an comply with) reasonable requests for nonimmigrant status has been revoked affidavit and provide additional assistance in the investigation or pursuant to 8 CFR 214.14(h). affidavits from others with first-hand prosecution during the requisite period. (d) Application Procedures for U knowledge who can attest to the To meet this evidentiary requirement, nonimmigrants. Each U nonimmigrant applicant’s continuous physical applicants may submit a newly who is requesting adjustment of status presence by specific: executed Form I–918, Supplement B, ‘‘U must submit: (10) Evidence establishing that (1) Form I–485, Application to Nonimmigrant Status Certification.’’ approval is warranted. Any other (2) If the applicant does not submit a Register Permanent Residence or Adjust information required by the instructions document described in paragraph (e)(1) Status, in accordance with the form to Form I–485, including whether of this section, the applicant may instructions; adjustment of status is warranted as a (2) The fee prescribed in 8 CFR submit an affidavit describing the matter of discretion on humanitarian 103.7(b)(1) or an application for a fee applicant’s efforts, if any, to obtain a grounds, to ensure family unity, or is waiver; newly executed Form I–918, (3) The biometric services fee as otherwise in the public interest. Supplement B, or other evidence prescribed in 8 CFR 103.7(b)(1) or an (11) Evidence relating to discretion. describing whether or not the alien application for a fee waiver; An applicant has the burden of showing received any request to provide (4) A photocopy of the alien’s Form that discretion should be exercised in assistance in a criminal investigation or I–797, Notice of Action, granting U his or her favor. Although U adjustment prosecution, and the alien’s response to nonimmigrant status; applicants are not required to establish any such request. (5) A photocopy of all pages of all of that they are admissible, USCIS may (i) The applicant should also include, the applicant’s passports valid during take into account all factors, including when possible, identifying information the required period (or equivalent travel acts that would otherwise render the about the law enforcement personnel document or a valid explanation of why applicant inadmissible, in making its involved in the case and any the applicant does not have a passport) discretionary decision on the information, of which the applicant is and documentation showing the application. Where adverse factors are aware, about the status of the criminal following: present, an applicant may offset these investigation or prosecution, including (i) The date of any departure from the by submitting supporting any charges filed and the outcome of United States during the period that the documentation establishing mitigating any criminal proceedings, or whether applicant was in U nonimmigrant equities that the applicant wants USCIS the investigation or prosecution was status; to consider when determining whether dropped and the reasons. (ii) The date, manner, and place of or not a favorable exercise of discretion (ii) If applicable, an applicant may each return to the United States during is appropriate. Depending on the nature also provide a more detailed description

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of situations where the applicant discretion, USCIS will approve the (iv) Evidence establishing that either refused to comply with requests for Form I–485. Upon approval of the qualifying family member or the assistance because the applicant adjustment of status under this section, U–1 principal alien would suffer believed that the requests for assistance USCIS will record the alien’s lawful extreme hardship if the qualifying were unreasonable. admission for permanent residence as of family member is not allowed to remain (3) In determining whether the the date of such approval. in or join the principal in the United applicant has satisfied the continued (2) Denials. Upon the denial of an States. Extreme hardship is evaluated on assistance requirement, USCIS or the application for adjustment of status a case-by-case basis, taking into account Department of Justice may at its under section 245(m) of the Act, the the particular facts and circumstances of discretion contact the certifying agency applicant will be notified in writing of each case. Applicants are encouraged to that executed the applicant’s original the decision and the reason for the document all applicable factors in their Form I–918, Supplement B, ‘‘U denial in accordance with 8 CFR part applications, as the presence or absence Nonimmigrant Status Certification’’ or 103. If an applicant chooses to appeal of any one factor may not be any other law enforcement agency. the denial to the Administrative determinative in evaluating extreme (4) In accordance with procedures Appeals Office pursuant to the hardship. To establish extreme hardship determined by the Department of Justice provisions of 8 CFR 103.3, the denial to a qualifying family member who is and the Department of Homeland will not become final until the appeal is physically present in the United States, Security, USCIS will refer certain adjudicated. an applicant must demonstrate that applications for adjustment of status to (g) Filing petitions for qualifying removal of the qualifying family the Department of Justice for family members. A principal U–1 member would result in a degree of determination of whether the applicant applicant may file an immigrant petition hardship beyond that typically unreasonably refused to provide under section 245(m)(3) of the Act on associated with removal. Factors that assistance in a criminal investigation or behalf of a qualifying family member as may be considered in evaluating prosecution. If the applicant submits a defined in paragraph (a)(2) of this whether removal would result in document described in paragraph (e)(1) section, provided that: extreme hardship to the alien or to the of this section, USCIS will not refer the (1) The qualifying family member has alien’s qualifying family member application for consideration by the never held U nonimmigrant status; include, but are not limited to: Department of Justice absent (2) The qualifying family relationship, (A) The nature and extent of the extraordinary circumstances. In other as defined in paragraph (a)(2) of this physical or mental abuse suffered as a cases, USCIS will only refer an section, exists at the time of the U–1 result of having been a victim of application to the Department of Justice principal’s adjustment and continues to criminal activity; if an official or law enforcement agency exist through the adjudication of the (B) The impact of loss of access to the has provided evidence that the alien has adjustment or issuance of the immigrant United States courts and criminal refused to comply with requests to visa for the qualifying family member; justice system, including but not limited provide assistance in an investigation or (3) The qualifying family member or to, participation in the criminal prosecution of persons in connection the principal U–1 alien, would suffer investigation or prosecution of the with the qualifying criminal activity or extreme hardship as described in 8 CFR criminal activity of which the alien was if there are other affirmative evidence in 245.24(g) (to the extent the factors listed a victim, and any civil proceedings the record suggesting that the applicant are applicable) if the qualifying family related to family law, child custody, or may have unreasonably refused to member is not allowed to remain in or other court proceeding stemming from provide such assistance. In these enter the United States; and the criminal activity; instances, USCIS will request that the (4) The principal U–1 alien has (C) The likelihood that the Department of Justice determine, based adjusted status to that of a lawful perpetrator’s family, friends, or others on all available affirmative evidence, permanent resident, has a pending acting on behalf of the perpetrator in the whether the applicant unreasonably application for adjustment of status, or home country would harm the applicant refused to provide assistance in a is concurrently filing an application for or the applicant’s children; criminal investigation or prosecution. adjustment of status. (D) The applicant’s needs for social, The Department of Justice will have 90 (h) Procedures for filing petitions for medical, mental health, or other days to provide a written determination qualifying family members. supportive services for victims of crime to USCIS, or where appropriate, request (1) Required documents. For each that are unavailable or not reasonably an extension of time to provide such a qualifying family member who plans to accessible in the home country; determination. After such time, USCIS seek an immigrant visa or adjustment of (E) Where the criminal activity may adjudicate the application whether status under section 245(m)(3) of the involved arose in a domestic violence or not the Department of Justice has Act, the U–1 principal applicant must context, the existence of laws and social provided a response. submit, either concurrently with, or practices in the home country that (f) Decision. The decision to approve after he or she has filed, his or her Form punish the applicant or the applicant’s or deny a Form I–485 filed under I–485: child(ren) because they have been section 245(m) of the Act is a (i) Form I–929 in accordance with the victims of domestic violence or have discretionary determination that lies form instructions; taken steps to leave an abusive solely within USCIS’s jurisdiction. After (ii) The fee prescribed in 8 CFR household; completing its review of the application 103.7(b)(1) or an application for a fee (F) The perpetrator’s ability to travel and evidence, USCIS will issue a waiver; to the home country and the ability and written decision approving or denying (iii) Evidence of the relationship willingness of authorities in the home Form I–485 and notify the applicant of listed in paragraph (a)(2) of this section, country to protect the applicant or the this decision. such as a birth or marriage certificate. If applicant’s children; and (1) Approvals. If USCIS determines primary evidence is unavailable, (G) The age of the applicant, both at that the applicant has met the secondary evidence or affidavits may be the time of entry to the United States requirements for adjustment of status submitted in accordance with 8 CFR and at the time of application for and merits a favorable exercise of 103.2(b)(2); adjustment of status; and

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(v) Evidence, including a signed (B) For qualifying family members adjudicated. During the appeal period, statement from the qualifying family who are physically present in the the applicant may not obtain or renew member and other supporting United States, if the Form I–929 is employment authorization under 8 CFR documentation, to establish that approved, USCIS will forward notice of 274a.12(c)(9). Denial of the U–1 discretion should be exercised in his or the approval to the U–1 principal principal applicant’s application will her favor. Although qualifying family applicant. result in the automatic denial of a members are not required to establish (ii) Denials. If the Form I–929 is qualifying family member’s Form I–485; that they are admissible on any of the denied, the applicant will be notified in such an automatic denial is not grounds set forth in section 212(a) of the writing of the reason(s) for the denial in appealable. Act other than on section 212(a)(3)(E) of accordance with 8 CFR part 103. If an (j) Effect of departure. If an applicant the Act, USCIS may take into account applicant chooses to appeal the denial for adjustment of status under this all factors, including acts that would to the Administrative Appeals Office section departs the United States, he or otherwise render the applicant pursuant to 8 CFR 103.3, the denial will she shall be deemed to have abandoned inadmissible, in making its not become final until the appeal is the application, and it will be denied. If, discretionary decision on the adjudicated. Denial of the U–1 principal however, the applicant is not under application. Where adverse factors are applicant’s application will result in the exclusion, deportation, or removal present, an applicant may offset these automatic denial of a qualifying family proceedings, and he or she filed a Form by submitting supporting member’s Form I–929. There shall be no I–131, Application for Travel Document, documentation establishing mitigating appeal of such an automatic denial. in accordance with the instructions on (i) Application procedures for equities that the applicant wants USCIS the form, or any other appropriate form, qualifying family members who are and was granted advance parole by to consider when determining whether physically present in the United States USCIS for such absences, and was or not a favorable exercise of discretion to request adjustment of status. (1) inspected and paroled upon returning to is appropriate. Depending on the nature Required documents. Qualifying family the United States, he or she will not be of the adverse factors, the applicant may members in the United States may be required to clearly demonstrate that request adjustment of status by deemed to have abandoned the the denial of adjustment of status would submitting: application. If the adjustment of status result in exceptional and extremely (i) Form I–485, Application to application of such an individual is unusual hardship. Moreover, depending Register Permanent Residence or Adjust subsequently denied, he or she will be on the gravity of the adverse factors, Status, in accordance with the form treated as an applicant for admission such a showing might still be instructions; subject to sections 212 and 235 of the insufficient. For example, USCIS will (ii) An approved Form I–929, Petition Act. If an applicant for adjustment of generally not exercise its discretion for Qualifying Family Member of a status under this section is under favorably in cases where the applicant U–1 Nonimmigrant; exclusion, deportation, or removal has committed or been convicted of a (iii) The fee prescribed in 8 CFR proceedings, USCIS will deem the serious violent crime, a crime involving 103.7(b)(1) or an application for a fee application for adjustment of status sexual abuse committed upon a child, or waiver; and abandoned as of the moment of the multiple drug-related crimes, or where (iv) The biometric services fee as applicant’s departure from the United there are security- or terrorism-related prescribed in 8 CFR 103.7(b)(1) or an States. concerns. application for a fee waiver. (k) Exclusive jurisdiction. USCIS shall (2) Decision. The decision to approve (2) Decision. The decision to approve have exclusive jurisdiction over or deny Form I–485 is a discretionary or deny a Form I–929 is a discretionary adjustment applications filed under determination that lies solely within determination that lies solely within section 245(m) of the Act. USCIS’s jurisdiction. After completing USCIS’s jurisdiction. The Form I–929 (l) Inapplicability of 8 CFR 245.1 and its review of the application and for a qualifying family member may not 245.2. The provisions of 8 CFR 245.1 evidence, USCIS will issue a written be approved, however, until such time and 245.2 do not apply to aliens seeking decision approving or denying Form as the principal U–1 applicant’s adjustment of status under section I–485 and notify the applicant of this application for adjustment of status has 245(m) of the Act. decision in writing. been approved. After completing its (i) Approvals. Upon approval of a PART 299—PRESCRIBED FORMS review of the application and evidence, Form I–485 under this section, USCIS USCIS will issue a written decision and shall record the alien’s lawful admission ■ notify the applicant of that decision in 10. The authority citation in part 299 for permanent residence as of the date continues to read as follows: writing. of such approval. (i) Approvals. (A) For qualifying (ii) Denial. Upon the denial of any Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2. family members who are outside of the application for adjustment of status, the United States, if the Form I–929 is applicant will be notified in writing of ■ 11. Section 299.1 is amended in the approved, USCIS will forward notice of the decision and the reason for the table by adding the entries ‘‘I–485, the approval either to the Department of denial in accordance with 8 CFR part Supplement E’’ and ‘‘I–929’’, in proper State’s National Visa Center so the 103. If an applicant chooses to appeal alpha/numeric sequence to read as applicant can apply to the consular post the denial to the Administrative follows: for an immigrant visa, or to the Appeals Office pursuant to the appropriate port of entry for a visa provisions of 8 CFR 103.3, the denial § 299.1 Prescribed forms. exempt alien. will not become final until the appeal is * * * * *

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Form No. Edition date Title

******* I–485, Supplement E ...... 10/31/08 T and U Nonimmigrant Supplement to Form I–485 Instructions.

******* I–929 ...... 10/31/08 Petition for Qualifying Family Member of a U–1 Nonimmigrant.

*******

■ 12. Section 299.5 is amended in the alpha/numeric sequence to read as § 299.5 Display of control numbers. table by adding the entries ‘‘I–485, follows: * * * * * Supplement E’’ and ‘‘I–929’’, in proper

Currently assigned Form No. Form title OMB control No.

******* I–485, Supplement E ...... T and U Nonimmigrant Supplement to Form I–485 Instructions ...... 1615–0023

******* I–929 ...... Petition for Qualifying Family Member of a U–1 Nonimmigrant ...... 1615–0106

*******

Paul A. Schneider, • Federal eRulemaking Portal: This Background Deputy Secretary. Web site provides the ability to type FSIS periodically issues regulations short comments directly into the [FR Doc. E8–29277 Filed 12–11–08; 8:45 am] that require changes in the labeling of BILLING CODE 9111–97–P comment field on this Web page or meat and poultry food products. Many attach a file for lengthier comments. Go meat and poultry establishments also to http://www.regulations.gov. Follow produce non-meat and non-poultry food DEPARTMENT OF AGRICULTURE the online instructions at that site for products subject to the jurisdiction of submitting comments. the Food and Drug Administration Food Safety and Inspection Service • Mail, including floppy disks or CD– (FDA). FDA also periodically issues ROMs, and hand- or courier-delivered regulations that require changes in the 9 CFR Parts 317 and 381 items: Send to Docket Clerk, U.S. labeling of such products. [Docket No. FSIS–2008–0040] Department of Agriculture, Food Safety On December 14, 2004, FSIS issued RIN 0583–AD05 and Inspection Service, 1400 the final rule that provided that the Independence Avenue, SW., Room Agency will set uniform compliance Uniform Compliance Date for Food 2534, South Agriculture Building, dates for new meat and poultry product Labeling Regulations Washington, DC 20250–3700. labeling regulations in two year Instructions: All items submitted by increments and will periodically issue AGENCY: Food Safety and Inspection final rules announcing those dates. That Service, USDA. mail or electronic mail must include the Agency name and docket number FSIS– final rule also established January 1, ACTION: Final rule. 2008–0040. Comments received in 2008, as the uniform compliance date for meat and poultry product labeling SUMMARY: The Food Safety and response to this docket will be made available for public inspection and regulations that issued between January Inspection Service (FSIS) is establishing 1, 2005, and December 31, 2006 (69 FR January 1, 2012, as the uniform posted without change, including any personal information, to http:// 74405). Consistent with the 2004 final compliance date for new meat and rule, FSIS issued a subsequent final www.regulations.gov. poultry product labeling regulations that rule, on March 5, 2007, that established are issued between January 1, 2009, and Docket: For access to background January 1, 2010, as the uniform December 31, 2010. FSIS periodically documents or comments received, go to compliance date for meat and poultry announces uniform compliance dates the FSIS Docket Room at the address product labeling regulations that issued for new meat and poultry product listed above between 8:30 a.m. and 4:30 between January 1, 2007, and December labeling regulations to minimize the p.m., Monday through Friday. 31, 2008 (72 FR 9651). economic impact of label changes. FOR FURTHER INFORMATION CONTACT: DATES: This rule is effective December The Final Rule 12, 2008. Comments on this final rule Rosalyn Murphy-Jenkins, Food Safety and Inspection Service, USDA, 1400 This final rule establishes January 1, must be received on or before January 2012, as the uniform compliance date 12, 2009. Independence Avenue, SW., Washington, DC 20250–3700; for new meat and poultry product ADDRESSES: FSIS invites interested labeling regulations that are issued Telephone 202–205–0623, Fax 202/205– persons to submit comments on this between January 1, 2009 and December 0145 or 202/205–0271. final rule. Comments may be submitted 31, 2010, is consistent with the previous by either of the following methods: SUPPLEMENTARY INFORMATION: final rules establishing uniform

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compliance dates. In addition, FSIS’ solicited comment on the concept of establishments will be able to plan for approach for establishing uniform establishing uniform compliance dates full utilization of their labeling stocks. compliance dates for new food labeling for labeling requirements (69 FR 24539). Need for the Rule regulations is consistent with FDA’s In the March 5, 2007, final rule, FSIS approach. FDA is also establishing noted that the Agency received only Establishing uniform compliance January 1, 2012, as the uniform four comments in response to the dates for food labeling regulations compliance date for new food labeling proposal, all fully supportive of the issued within specified time periods regulations that are issued between policy to set uniform compliance dates. minimizes the economic impact of label January 1, 2009, and December 31, 2010. Therefore, in the March 5, 2007, final changes for industry and may indirectly Two year increments enhance the rule, FSIS determined that further benefit consumers if cost savings are industry’s ability to make orderly rulemaking for the establishment of passed on in the form of lower prices. adjustments to new labeling uniform compliance dates for labeling Regulatory Flexibility Analysis requirements without unduly exposing requirements is unnecessary (72 FR consumers to outdated labels. With this 9651). Consistent with its statement in This rule does not have a significant approach to effecting compliance, the 2007, FSIS finds at this time that further economic impact on a substantial meat and poultry industry is able to rulemaking on this matter is number of small entities. Consequently, plan for use of label inventories and to unnecessary. However, FSIS is an initial regulatory flexibility analysis develop new labeling materials that providing an opportunity for comment is not required (5 U.S.C. 601–612). The meet the requirements of all labeling on whether the uniform compliance uniform compliance date does not regulations made within the two year date established in this final rule should impose any burden on small entities. period, thereby minimizing the be modified or revoked. The Agency will conduct regulatory economic impact of labeling changes. flexibility of future labeling regulations By establishing a uniform compliance Executive Order 12988 if such analyses are required. date that is the same as FDA’s, FSIS is This final rule has been reviewed Paperwork Requirements providing meat and poultry under the Executive Order 12988, Civil manufacturers with a greater ability to Justice Reform. Under this final rule: (1) There are no paperwork or adjust production plans to new labeling All state and local laws and regulations recordkeeping requirements associated requirements across all of their product that are inconsistent with this rule will with this policy under the Paperwork lines. be preempted; (2) no retroactive effect Reduction Act of 1995 (44 U.S.C. 3501– This policy also serves consumers’ will be given to this rule; and (3) no 3520). interests because the cost of multiple retroactive proceedings will be required E-Government Act Compliance short-term label revisions that would before parties may file suit in court otherwise occur would likely be passed challenging this rule. FSIS is committed to complying with on to consumers in the form of higher the E-Government Act, to promote the Executive Order 12866 prices. use of the Internet and other It will remain FSIS’ policy, however, FSIS has examined the impacts of the information technologies to provide to encourage industry to comply with final rule under Executive Order 12866, increased opportunities for citizen new labeling regulations as quickly as which directs agencies to assess costs access to Government information and feasible. Thus, when industry members and benefits of available regulatory services for other purposes. voluntarily change their labels, they alternatives and, when regulation is Additional Public Notification should consider incorporating any new necessary, to select regulatory requirements that have been published approaches that maximize net benefits Public awareness of all segments of as final regulations up to that time. (including potential economic, rulemaking and policy development is The new uniform compliance date environmental, public health and safety, important. Consequently, in an effort to will apply only to final FSIS regulations and other advantages; distributive ensure that minorities, women, and that require changes in the labeling of impacts; and equity). This action has persons with disabilities are aware of meat and poultry products and that are been determined to be not significant this final rule, FSIS will announce it on- published after January 1, 2009, and and, therefore, has not been reviewed by line through the FSIS Web page located before December 31, 2010. In each of the Office of Management and Budget. at http://www.fsis.usda.gov/ these regulations, FSIS will specifically Establishing a uniform compliance regulations_&_policies/ identify January 1, 2012, as the date for all future Federal food product 2008_Interim_&_Final_Rules_Index/ compliance date. All meat and poultry labeling regulations affecting the meat index.asp. FSIS also will make copies of food products that are subject to and poultry industry that are issued by this Federal Register publication labeling regulations promulgated FSIS over a two year period will available through the FSIS Constituent between January 1, 2009 and December eliminate potentially burdensome Update, which is used to provide 31, 2010, will be required to comply requirements otherwise faced by the information regarding FSIS policies, with these regulations when introduced industry. procedures, regulations, Federal into commerce on or after January 1, The regulation also greatly limits the Register notices, FSIS public meetings, 2012. If any food labeling regulation possibility of potentially conflicting and other types of information that involves special circumstances that compliance dates for labeling could affect or would be of interest to justify a compliance date other than requirements developed for meat and constituents and stakeholders. The January 12, 2012, the Agency will poultry products and labeling Update is communicated via Listserv, a determine for that regulation an requirements developed for non-meat free electronic mail subscription service appropriate compliance date, which and non-poultry products. It thus for industry, trade groups, consumer will be specified when the final provides for an orderly industry interest groups, health professionals and regulation is published. adjustment to any new labeling other individuals who have asked to be In rulemaking that began with the requirements. Labeling changes in included. The Update is available on the publication of a proposed rule on May response to Federal regulations will FSIS Web page. Through the Listserv 4, 2004, FSIS provided notice and likely be less frequent, and and the Web page, FSIS is able to

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provide information to a much broader 03) in the Federal Register (70 FR creditor’s claim by a fraction, the and more diverse audience. 11903) proposing regulations that would numerator of which is the fair market In addition, FSIS offers an e-mail provide guidance regarding the value of the proprietary interests in the subscription service which provides application of the nonrecognition rules issuing corporation that are received in automatic and customized access to of subchapter C of the Internal Revenue the aggregate in exchange for the senior selected food safety news and Code (Code) to transactions involving claims, and the denominator of which is information. This service is available at insolvent corporations and to other the sum of the amount of money and the http://www.fsis.usda.gov/ transactions that raise similar issues. No fair market value of all other news_and_events/email_subscription/. public hearing regarding the proposed consideration (including the proprietary Options range from recalls to export regulations was requested or held. The interests in the issuing corporation) information to regulations, directives IRS and Treasury Department have received in the aggregate in exchange for and notices. Customers can add or carefully considered the comments such claims. In contrast to the treatment delete subscriptions themselves, and regarding the proposed regulations. The of the senior creditor class that receives have the option to password protect IRS and Treasury Department continue stock of the issuing corporation, the their accounts. to consider the issues raised and to value of the proprietary interest in the evaluate the complexity and necessity target corporation represented by a Done at Washington, DC, on December 9, 2008. for valuation under the exchange of net junior claim is the fair market value of value requirement. In the interim, these the junior claim. The effect of this rule Alfred V. Almanza, final regulations adopt the portion of the is that there is 100 percent continuity of Administrator. proposed regulations that deals with the interest if each senior claim is satisfied [FR Doc. E8–29485 Filed 12–11–08; 8:45 am] circumstances in which (and the extent with the same ratio of stock to nonstock BILLING CODE 3410–DM–P to which) creditors of a corporation will consideration and no junior claim is be treated as proprietors of the satisfied with nonstock consideration. corporation in determining whether An example was added to the COI DEPARTMENT OF THE TREASURY continuity of interest is preserved in a rule in response to a suggestion that the potential reorganization. final regulations demonstrate the Internal Revenue Service bifurcation of senior claims when the Explanation of Provisions creditors of the class receive 26 CFR Part 1 These final regulations provide that, disproportionate amounts of acquiring [TD 9434] in certain circumstances, stock received corporation stock and other property. by creditors may count for continuity of Also, in response to comments, a rule RIN 1545–BC88 interest purposes both inside and was added to the final regulations outside of bankruptcy proceedings. The requiring that in the situation where Creditor Continuity of Interest expansion of the application of the G there is only one class of creditors AGENCY: Internal Revenue Service (IRS), reorganization rules to reorganizations receiving stock, more than a de minimis Treasury. of insolvent corporations outside of amount of acquiring corporation stock bankruptcy is consistent with Congress’ ACTION: Final regulations. must be exchanged for the creditors’ intent to facilitate the rehabilitation of proprietary interests relative to the total SUMMARY: This document contains final troubled corporations. S. Rep. No. 96– consideration received by the insolvent regulations providing guidance 1035, 96th Sess. 35 (1980). Accordingly, target corporation, its shareholders, and regarding when and to what extent the final regulations adopt the rules its creditors, before the stock will be creditors of a corporation will be treated proposed for creditors of an insolvent counted for purposes of COI. target corporation outside of a title 11 or as proprietors of the corporation in Special Analyses determining whether continuity of similar case in new § 1.368–1(e)(6) with interest (‘‘COI’’) is preserved in a only minor modifications and It has been determined that this potential reorganization. These final clarifications. The final regulations treat Treasury decision is not a significant regulations are necessary to provide claims of the most senior class of regulatory action as defined in clarity to parties engaging in creditors to receive a proprietary Executive Order 12866. Therefore, a reorganizations of insolvent interest in the issuing corporation and regulatory assessment is not required. It corporations, both inside and outside of claims of all equal classes of creditors has also been determined that section bankruptcy. These final regulations (together, the senior claims) differently 553(b) of the Administrative Procedure affect corporations, their creditors, and from the claims of classes of creditors Act (5 U.S.C. chapter 5) does not apply their shareholders. junior to the senior claims (the junior to these final regulations and, because claims). The final regulations treat such the regulations do not impose a DATES: Effective Date: These final senior claims as representing collection of information on small regulations are effective on December proprietary interests in the target entities, the Regulatory Flexibility Act 12, 2008. corporation. While such senior claims, (5 U.S.C. chapter 6) does not apply. Applicability Date: For dates of and all junior claims, are treated as Pursuant to section 7805(f) of the Code, applicability see § 1.368–1(e)(8). representing a proprietary interest in the the notice of proposed rulemaking FOR FURTHER INFORMATION CONTACT: Jean target corporation, the determination of preceding these regulations was Brenner (202) 622–7790, Douglas Bates the value of proprietary interests in the submitted to the Chief Counsel for (202) 622–7550, or Bruce Decker (202) target corporation represented by the Advocacy of the Small Business 622–7550 (not toll-free numbers). senior claims is made by calculating the Administration for comment on its SUPPLEMENTARY INFORMATION: average treatment for all senior claims. impact on small business. The final regulations provide that the Background value of a proprietary interest in the Drafting Information On March 10, 2005, the IRS and target corporation represented by a The principal authors of these Treasury Department published a notice senior claim is determined by regulations are Jean Brenner, Douglas of proposed rulemaking (REG–163314– multiplying the fair market value of the Bates, and Bruce Decker of the Office of

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Associate Chief Counsel (Corporate). defined in paragraph (e)(4) of this stock, such class (or set of equal classes) However, other personnel from the IRS section) to the issuing corporation is treated as the most senior class of and Treasury Department participated acquires, for consideration other than creditors receiving stock. When only in their development. stock of the issuing corporation, either one class (or one set of equal classes) of a proprietary interest in the target creditors receives issuing corporation List of Subjects in 26 CFR Part 1 corporation or stock of the issuing stock in exchange for a creditor’s Income taxes, Reporting and corporation that was furnished in proprietary interest in the target recordkeeping requirements. exchange for a proprietary interest in corporation, such stock will be counted Adoption of Amendments to the the target corporation. The preceding for measuring continuity of interest Regulations sentence does not apply to the extent provided that the stock issued by the those persons who were the direct or acquiring corporation is not de minimis ■ Accordingly, 26 CFR part 1 is indirect owners of the target corporation in relation to the total consideration amended as follows: prior to the potential reorganization received by the insolvent target maintain a direct or indirect proprietary corporation, its shareholders, and its PART 1—INCOME TAXES interest in the issuing corporation. creditors. ■ Paragraph 1. The authority citation * * * * * (B) Claims of junior classes of creditor for part 1 continues to read in part as (6) Creditors’ claims as proprietary receiving stock. The value of a follows: interests—(i) In general. A creditor’s proprietary interest in the target corporation held by a creditor whose Authority: 26 U.S.C. 7805 * * * claim against a target corporation may be a proprietary interest in the target claim is junior to the claims of other ■ Par. 2. Section 1.368–1 is amended corporation if the target corporation is classes of target claims which are by: in a title 11 or similar case (as defined receiving proprietary interests in the ■ 1. Adding a sentence after the fifth in section 368(a)(3)) or the amount of issuing corporation is the fair market sentence of paragraph (e)(1)(i). the target corporation’s liabilities value of the junior creditor’s claim. ■ 2. Adding a sentence at the end of exceeds the fair market value of its (iii) Bifurcated claims. If a creditor’s paragraph (e)(1)(ii). assets immediately prior to the potential claim is bifurcated into a secured claim ■ 3. Revising paragraph (e)(3). reorganization. In such cases, if any and an unsecured claim pursuant to an ■ 4. Redesignating paragraphs (e)(6), creditor receives a proprietary interest order in a title 11 or similar case (as (e)(7), and (e)(8) as paragraphs (e)(7), in the issuing corporation in exchange defined in section 368(a)(3)) or pursuant (e)(8), and (e)(9) respectively, and for its claim, every claim of that class of to an agreement between the creditor adding a new paragraph (e)(6). creditors and every claim of all equal and the debtor, the bifurcation of the ■ 5. Adding Example 10 to the end of and junior classes of creditors (in claim and the allocation of newly designated paragraph (e)(8). addition to the claims of shareholders) consideration to each of the resulting ■ 6. Adding a sentence at the end of is a proprietary interest in the target claims will be respected in applying the newly designated paragraph (e)(9)(i). corporation immediately prior to the rules of this paragraph (e)(6). The additions and revisions read as potential reorganization to the extent (iv) Effect of treating creditors as follows: provided in paragraph (e)(6)(ii) of this proprietors. The treatment of a creditor’s claim as a proprietary interest in the § 1.368–1 Purpose and scope of exception section. to reorganization exchanges. (ii) Value of proprietary interest—(A) target corporation shall not preclude treating shares of the target corporation * * * * * Claims of most senior class of creditors receiving stock. A claim of the most as proprietary interests in the target (e) * * * corporation. (1) * * * senior class of creditors receiving a (i) * * * See paragraph (e)(6) of this proprietary interest in the issuing * * * * * section for rules related to when a corporation and a claim of any equal (8) * * * creditor’s claim against a target class of creditors will be treated as a Example 10. Creditors treated as owning a proprietary interest. (i) More than one class corporation is a proprietary interest in proprietary interest in accordance with of creditor receives issuing corporation stock. the corporation. * * * the rules of this paragraph (e)(6)(ii). For T has assets with a fair market value of $150x (ii) * * * A proprietary interest in the a claim of the most senior class of and liabilities of $200x. T has two classes of target corporation is not preserved to the creditors receiving a proprietary interest creditors: two senior creditors with claims of extent that creditors (or former in the issuing corporation, and a claim $25x each; and one junior creditor with a creditors) of the target corporation that of any equal class of creditors, the value claim of $150x. T transfers all of its assets to own a proprietary interest in the of the proprietary interest in the target P in exchange for $95x in cash and shares of corporation under paragraph (e)(6) of corporation represented by the claim is P stock with a fair market value of $55x. Each this section (or would be so treated if determined by multiplying the fair T senior creditor receives $20x in cash and P stock with a fair market value of $5x in they had received the consideration in market value of the claim by a fraction, exchange for his claim. The T junior creditor the potential reorganization) receive the numerator of which is the fair receives $55x in cash and P stock with a fair payment for the claim prior to the market value of the proprietary interests market value of $45x in exchange for his potential reorganization and such in the issuing corporation that are claim. The T shareholders receive no payment would be treated as other received in the aggregate in exchange for consideration in exchange for their T stock. property or money received in the the claims of those classes of creditors, Under paragraph (e)(6) of this section, exchange for purposes of section 356 and the denominator of which is the because the amount of T’s liabilities exceeds had it been a distribution with respect sum of the amount of money and the the fair market value of its assets to stock. fair market value of all other immediately prior to the potential reorganization, the claims of the creditors of (3) Related persons acquisitions. A consideration (including the proprietary T may be proprietary interests in T. Because proprietary interest in the target interests in the issuing corporation) the senior creditors receive proprietary corporation is not preserved if, in received in the aggregate in exchange for interests in P in the transaction in exchange connection with a potential such claims. If only one class (or one set for their claims, their claims and the claim reorganization, a person related (as of equal classes) of creditors receives of the junior creditor and the T stock are

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treated as proprietary interests in T continuity of interest. Thus, the value of the provisions in OSHA safety and health immediately prior to the transaction. Under creditors’ proprietary interests in total is standards affect the Agency’s ability to paragraph (e)(6)(ii)(A) of this section, the $20x and the creditors received $10x worth treat an employer’s failure to provide value of the proprietary interest of each of the of P stock in total in exchange for their PPE or training to each covered senior creditors’ claims is $5x (the fair proprietary interests. Therefore, P acquired market value of the senior creditor’s claim, 50 percent of the value of the proprietary employee as a separate violation. The $25x, multiplied by a fraction, the numerator interests in T in exchange for P stock. amendments add no new compliance of which is $10x, the fair market value of the Because a substantial part of the value of the obligations. Employers are not required proprietary interests in the issuing proprietary interests in T is preserved, the to provide any new type of PPE or corporation, P, received in the aggregate in continuity of interest requirement is satisfied. training, to provide PPE or training to exchange for the claims of all the creditors any employee not already covered by in the senior class, and the denominator of (9) * * * The sixth sentence of paragraph (e)(1)(i) of this section, the the existing requirements, or to provide which is $50x, the sum of the amount of PPE or training in a different manner money and the fair market value of all other last sentence of paragraph (e)(1)(ii) of consideration (including the proprietary this section, paragraph (e)(3) of this than that already required. The interests in P) received in the aggregate in section, paragraph (e)(6) of this section, amendments simply clarify that the exchange for such claims). Accordingly, $5x and Example 10 of paragraph (e)(8) of standards apply to each employee. of the stock that each of the senior creditors this section apply to transactions DATES: This final rule becomes effective receives is counted in measuring continuity occurring after December 12, 2008. on January 12, 2009. of interest. Under paragraph (e)(6)(ii)(B) of ADDRESSES: In accordance with 28 this section, the value of the junior creditor’s Linda E. Stiff, proprietary interest in T immediately prior to U.S.C. 2112(a), the Agency designates Deputy Commissioner for Services and Joseph M. Woodward, Associate the transaction is $100x, the value of his Enforcement. claim. Thus, the value of the creditors’ Solicitor of Labor for Occupational proprietary interests in total is $110x and the Approved: December 3, 2008. Safety and Health, Office of the Solicitor creditors received $55x worth of P stock in Eric Solomon, of Labor, Room S–4004, U.S. total in exchange for their proprietary Assistant Secretary of the Treasury (Tax Department of Labor, 200 Constitution interests. Therefore, P acquired 50 percent of Policy). Avenue, NW., Washington, DC 20210, to the value of the proprietary interests in T in [FR Doc. E8–29271 Filed 12–11–08; 8:45 am] receive petitions for review of the final exchange for P stock. Because a substantial BILLING CODE 4830–01–P rule. part of the value of the proprietary interests in T is preserved, the continuity of interest FOR FURTHER INFORMATION CONTACT: requirement is satisfied. Contact Ms. Jennifer Ashley, Director, (ii) One class of creditor receives issuing DEPARTMENT OF LABOR Office of Communications, OSHA, U.S. corporation stock and cash in Department of Labor, Room N–3647, disproportionate amounts. T has assets with Occupational Safety and Health 200 Constitution Avenue, NW., a fair market value of $80x and liabilities of Administration Washington, DC 20210; telephone (202) $200x. T has one class of creditor with two 693–1999 or fax (202) 693–1634. creditors, A and B, each having a claim of 29 CFR Parts 1910, 1915, 1917, 1918 SUPPLEMENTARY INFORMATION: $100x. T transfers all of its assets to P for and 1926 $60x in cash and shares of P stock with a fair I. Table of Contents market value of $20x. A receives $40x in cash [Docket No. OSHA–2008–0031] in exchange for its claim. B receives $20x in I. Table of Contents RIN 1218–AC42 cash and P stock with a fair market value of II. Background $20x in exchange for its claim. The T III. Legal Authority shareholders receive no consideration in Clarification of Employer Duty To IV. Summary and Explanation of the Final exchange for their T stock. The P stock is not Provide Personal Protective Rule de minimis in relation to the total Equipment and Train Each Employee V. Final Economic Analysis consideration received. Under paragraph VI. Regulatory Flexibility Certificate AGENCY: Occupational Safety and Health (e)(6) of this section, because the amount of VII. Environmental Impact Assessment T’s liabilities exceeds the fair market value of Administration (OSHA), U.S. VIII. Federalism its assets immediately prior to the potential Department of Labor. IX. Unfunded Mandates reorganization, the claims of the creditors of ACTION: Final rule. X. OMB Review Under the Paperwork T may be proprietary interests in T. Because Reduction Act the creditors of T received proprietary SUMMARY: In this rulemaking, OSHA is XI. State Plan States interests in P in the transaction in exchange amending its standards to add language XII. Authority and Signature for their claims, their claims and the T stock clarifying that the personal protective II. Background are treated as proprietary interests in T equipment (PPE) and training immediately prior to the transaction. Under requirements impose a compliance duty A. Personal Protective Equipment (PPE) paragraph (e)(6)(ii)(A) of this section, the to each and every employee covered by The use of personal protective value of the proprietary interest of each of the senior creditors is $10x (the fair market value the standards and that noncompliance equipment, including respirators, is of a senior creditor’s claim, $40x, multiplied may expose the employer to liability on often necessary to protect employees by a fraction, the numerator of which is $20x, a per-employee basis. The amendments from injury or illness caused by the fair market value of the proprietary consist of new paragraphs added to the exposure to toxic substances and other interests in the issuing corporation, P, introductory sections of the listed Parts workplace hazards. Many OSHA received in the aggregate in exchange for the and changes to the language of some standards in Parts 1910 through 1926 claims of all the creditors in the class, and existing respirator and training require employers to provide PPE to the denominator of which is $80x, the sum requirements. This action, which is in their employees and ensure the use of of the amount of money and the fair market accord with OSHA’s longstanding PPE. Some general standards require the value of all other consideration (including the proprietary interests in P) received in the position, is being taken in response to employer to provide appropriate PPE aggregate in exchange for such claims). recent decisions of the Occupational wherever necessary to protect Accordingly, $10x of the cash that was Safety and Health Review Commission employees from hazards. See, e.g., received by A and $10x of the P stock that indicating that differences in wording §§ 1910.132(a); 1915.152(a); 1926.95(a). was received by B are counted in measuring among the various PPE and training Other standards require the employer to

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provide specific types of PPE or to B. Training excursion limit and ensure their provide PPE in specific circumstances. Training is also an important participation in the program.’’ For example, the logging standard component of many OSHA standards. § 1910.1001(j)(7). See also, e.g., requires employers to provide cut- Training is necessary to enable § 1926.1101(k)(9) (Construction resistant leg protection to employees employees to recognize the hazards asbestos); § 1910.1025(l) (Lead); operating a chainsaw, 29 CFR posed by toxic substances and § 1910.1027(m)(4) (Cadmium). The Agency interprets its PPE and 1910.266(d)(1)(iv); the coke oven dangerous work practices and protect training provisions to impose a duty emissions standard requires the themselves from these hazards. upon the employer to comply for each employer to provide flame resistant Virtually all of OSHA’s toxic-substance and every employee subject to the clothing and other specialized standards, such as the asbestos, vinyl requirement regardless of whether the protective equipment, § 1910.1029(h); chloride, lead, chromium, cadmium and provision expressly states that PPE or and the methylene chloride standard benzene standards, require the employer requires the employer to provide training must be provided to ‘‘each to train or provide training to employees employee.’’ Neither the Commission nor protective clothing and equipment that who may be exposed to the substance. any court has ever suggested that an is resistant to methylene chloride, Many safety standards also contain employer can comply with the PPE and § 1910.1052(h). OSHA’s respirator training requirements. The lockout/ training provisions in safety and health standards follow a similar pattern. tagout standard, for example, requires standards by providing PPE to some Section 1910.134, revised in 1998, the employer to provide training on the employees covered by the requirement requires employers to provide purpose and function of the energy but not others, or that the employer can respirators ‘‘when such equipment is control program, § 1910.147(c)(7), and train some employees covered by the necessary to protect the health of the the electric power generation standard training requirement but not others. The employee.’’ § 1910.134(a)(2). The requires that employees be trained in basic nature of the employer’s obligation section includes additional paragraphs and familiar with pertinent safety is the same in all of these provisions; requiring employers to establish a requirements and procedures. each and every employee must receive respiratory protection program, to select § 1910.269(a)(2). the required protection. an appropriate respirator based upon The regulatory text on training varies Therefore, the agency’s position is the hazard(s) to which the employee is from standard to standard. Some that a separate violation occurs for each exposed, to provide a medical standards explicitly state that ‘‘each employee who is not provided required examination to determine the employee shall be trained’’ or ‘‘each PPE or training, and that a separate employee’s ability to use a respirator, to employee shall receive training’’ or citation item and proposed penalty may fit-test the respirator to the individual contain similar language that makes be issued for each. However, as employee and to take other actions to clear that the training must be provided discussed in the Legal Authority ensure that respirators are properly to each individual employee covered by section, a recent decision of the Review selected, used and maintained. E.g., the requirement. E.g., process safety Commission in the Ho case suggests that § 1910.134(c) through (m); 63 FR 1152– management, § 1910.119(g)(i) (each minor variations in the wording of the 1300 January 8, 1998 (Respiratory employee shall be trained); lockout/ provisions affect the Secretary’s Protection rule). A variety of other tagout, § 1910.147(c)(7)(A) (each authority to cite and penalize separate standards require the employer to employee shall receive training); vinyl violations. Secretary of Labor v. Erik K. chloride, § 1910.1017(j) (each employee provide respirators when employees are Ho, Ho Ho Ho Express, Inc. and shall be provided training); construction or may be exposed to specific hazardous Houston Fruitland, Inc., 20 O.S.H. Cas. general safety and health provisions, substances. See, e.g., (BNA) 1361 (Rev. Comm’n 2003), aff’d, § 1926.20(b) (instruct each employee); § 1910.1101(g)(asbestos); Chao v. OSHRC and Erik K. Ho, 401 construction fall protection, § 1910.1027(g)(cadmium). The 1998 F.3d 355 (5th Cir. 2005). The agency is § 1926.503(a) (provide a training Respiratory Protection rule revised the proposing to amend its standards to program for each employee). make it unmistakably clear that each substance-specific standards then in Other standards contain a slight covered employee is required to receive existence to simplify and consolidate variation; they state that ‘‘employees PPE and training, and that each instance their respiratory protection provisions. shall be trained’’ or that the employer when an employee subject to a PPE or 63 FR 1265–68. Except for a limited must ‘‘provide employees with training requirement does not receive number of respirator provisions unique information and training.’’ E.g., Electric the required PPE or training may be to each substance-specific standard, the power generation, § 1910.269(a)(2) considered a separate violation subject regulatory text on respirators for these (employees shall be trained); Benzene, to a separate penalty. standards is virtually the same. The § 1910.1028(j)(3)(i) (provide employees Where an employer commits multiple construction industry asbestos with information and training); Hazard violations of a single standard or standard’s initial respirator paragraph, communication, § 1910.1200(h) (provide regulation, OSHA either groups the which is virtually identical to the initial employees with effective information violations and proposes a single respirator paragraphs in most substance and training). penalty, or cites and proposes a penalty specific standards, states that, ‘‘[f]or Finally, some standards state that the for each discrete violation. Although employees who use respirators required employer must ‘‘institute a training ‘‘grouping’’ is the more common by this section, the employer must program [for exposed employees] and method, OSHA proposes separate ‘‘per- provide respirators that comply with the ensure their participation in the instance’’ penalties in cases where the requirements of this paragraph.’’ program’’ or contain similar language. resulting heightened aggregate penalty § 1926.1101(h)(1). The standard also For example, the asbestos standard’s is appropriate to deter flagrant violators states that, ‘‘the employer must initial training section states that ‘‘[t]he and increase the impact of OSHA’s implement a respiratory protection employer shall institute a training limited resources. Per-employee program in accordance with [certain program for all employees who are penalties for violations of PPE and requirements in § 1910.134].’’ exposed to airborne concentrations of training requirements are no different in § 1926.1101(h)(2). asbestos at or above the PEL and/or kind than other types of per-instance

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penalties the agency has proposed comments will simply be referenced as and economically feasible, and cost under this policy. OSHA’s current ‘‘Ex. XXX’’ to shorten the references and effective. American Textile Mfrs. Inst., policies for issuing instance-by-instance make the document more readable. Inc. v. Donovan, 452 U.S. 490 (1980). violations are described in OSHA Please note that the title of the final These requirements are not implicated Instruction CPL 2.80 issued on October rulemaking has been changed from the in this final rule because the 21, 1990. These detailed instructions to title used in the proposal. The proposed amendments merely clarify the OSHA’s field offices and the National rulemaking title ‘‘Clarification of obligations under the existing PPE and Office ensure that the policy is only Remedy for Violation of Requirements training provisions and add no used when a particularly flagrant to Provide Personal Protective additional requirements. See sections V violation is discovered, and that each Equipment and Train Each Employee’’ and VI infra. The agency met its burden case receives careful review by the caused some confusion as to the nature of showing significant risk, feasibility Agency’s senior officials before such of the rulemaking. Therefore, OSHA has and cost effectiveness in promulgating citations are issued. Approximately changed the title to ‘‘Clarification of the existing PPE and training seven instance-by-instance, or Employer Duty to Provide Personal requirements. egregious, citations are issued each year Protective Equipment and Training to B. General Principles Governing Per- (Ex. 69). Each Employee’’ to show that the Instance Penalties Accordingly, on August 19, 2008, rulemaking does not impose penalties, OSHA proposed to amend the respirator but rather clarifies each employer’s duty Section 9(a) of the Act authorizes the and training provisions in the standards to provide PPE and training to each and Secretary to issue a citation when ‘‘an in Parts 1910 through 1926 to: (1) Revise every employee covered by the employer has violated a requirement of the language of the initial respirator standards and informs employers that * * * any standard.’’ 29 U.S.C. 658(a). paragraphs adopted in the 1998 the failure to provide PPE or training to A separate penalty may be assessed for respiratory protection rule to explicitly an employee may be considered a ‘‘each violation.’’ Id. at 666(a), (b), (c). state that the employer must provide separate violation. ‘‘The plain language of the Act could each employee an appropriate respirator hardly be clearer’’ in authorizing a and implement a respiratory protection III. Legal Authority separate penalty for each discrete program for each employee, (2) revise A. Introduction instance of a violation of a duty the language of those initial training imposed by a standard. Kaspar Wire paragraphs that require the employer to The final rule does not impose any Works, Inc. v. Secretary of Labor, 268 institute or provide a training program new substantive requirements. The F.3d 1123, 1130 (DC Cir. 2001). to explicitly state that the employer regulatory text clarifies that the duty to What constitutes an instance of a must train each employee, and (3) add provide personal protective equipment violation for which a separate penalty a new section to the introductory of all types, including respirators, and may be assessed depends upon the Subparts of each Part to clarify that training to employees is a duty owed to nature of the duty imposed by the standards requiring the employer to each employee covered by the standard or regulation at issue. If the provide PPE, including respirators, or to requirement. This adds no new standard ‘‘prohibits individual acts provide training to employees, impose a compliance burden; the nature of the rather than a single course of action,’’ separate compliance duty to each employer’s duty to protect each each prohibited act constitutes a employee covered by the requirement employee is inherent in the existing violation for which a penalty may be and that each instance of an employee provisions. To comply with existing assessed. Secretary of Labor v. General who does not receive the required PPE PPE and training provisions, the Motors Corp., CPCG Oklahoma City or training may be considered a separate employer must provide PPE to each Plant, 2007 WL 4350896, 35 (GM) (Rev. violation (73 FR 48335–48350). employee who needs it and train each Comm’n 2007); Sanders Lead Co. 17 OSHA received approximately 50 employee who must be informed of job O.S.H. Cas. (BNA) 1197, 1203 (Rev. comments on the proposal, and, in hazards. The employer is not in Comm’n 1995). Applying this test, the response to several requests, held a compliance if some employees are Commission has held that the hearing on October 6, 2008. A 30-day without personal protection or are recordkeeping regulation’s requirement period was established for post-hearing untrained. The final rule achieves to record each injury or illness is comments and briefs, and seven post- greater consistency in the regulatory text violated each time the employer failed hearing submissions were received by of the various respirator and training to record an injury or illness, Secretary the Agency. provisions in Parts 1910 through 1926, of Labor v. Caterpillar Inc., 15 O.S.H. Following the notice and comment provides clearer notice of the nature of Cas. (BNA) 2153, 2172–73 (Rev. period, an informal rulemaking hearing, the employer’s duty under existing PPE Comm’n 1993); the machine guarding and careful Agency deliberation, OSHA and training provisions, and addresses standard’s requirement for point-of- finds that its preliminary conclusions the Commission’s interpretation that the operation guards on machine parts that are appropriate and is therefore issuing language of some respirator and training could injure employees is violated at this final standard clarifying employers’ provisions does not allow separate per- each unguarded machine, Hoffman responsibilities to provide required PPE employee citations and penalties. Constr. Co. v. Secretary of Labor, 6 and training to each and every one of Before OSHA can issue a new more O.S.H. Cas. (BNA) 1274, 1275 (Rev. their employees. protective standard, the agency must Comm’n 1975); the fall protection Federal Register documents, find that the hazard being regulated standard’s requirement to guard floor comments, the transcript from the poses a significant risk of material and wall openings is violated at each hearing, and post hearing submissions health impairment and that the new location on a construction site where can be accessed electronically at standard is reasonably necessary and appropriate fall protection is lacking, http://www.regulations.gov, docket No. appropriate to reduce that risk. Secretary of Labor v. J.A. Jones Constr. OSHA–2008–0031. Comments received Industrial Union Department, AFL–CIO Co., 15 O.S.H. Cas. (BNA) 2201, 2212 are identified at regulations.gov as v. American Petroleum Institute, 448 (Rev. Comm’n 1993); the trenching Exhibits ‘‘OSHA–2008–0031–XXX’’. U.S. 607 (1980). OSHA must also show standard’s shoring or shielding However, in the discussion below, that the new standard is technologically requirement is violated at each

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unprotected trench, Secretary of Labor * * * [is] the individual and discrete failure violations for each of the eleven v. Andrew Catapano Enters., Inc., 17 to provide an employee working within a employees not provided a respirator. O.S.H. Cas. (BNA) 1776, 1778 (Rev. contaminated environment with a proper The respirator provision then in effect Comm’n 1996) and the electrical safety respirator. stated, in relevant part, that ‘‘[t]he standard is violated at each location 17 O.S.H. Cas. (BNA) at 1366. Hartford employer shall provide respirators and where non-complying electrical Roofing reflects the guiding principle ensure that they are used * * * [d]uring equipment is installed. A.E. Staley Mfg. that provisions requiring the employer all Class I asbestos jobs.’’ Co. v. Secretary of Labor, 295 F.3d 1341, to ‘‘provide’’ respirators to employees § 1926.1101(h)(1)(i). Ho was also 1343 (DC Cir. 2002). because of environmental or other charged with separate violations for The failure to protect an employee is hazards to which they are exposed are each of the eleven employees not a discrete act for which a separate intrinsically employee-specific because trained in accordance with penalty may be assessed when the such provisions require protection for § 1926.1101(k)(9)(i) and (k)(9)(viii). standard imposes a specific duty on the employees as individuals. The Paragraph (k)(9)(i) requires the employer employer to protect individual Commission reaffirmed this principle in to ‘‘institute a training program for all employees: subsequent cases. In Secretary of Labor [exposed] employees and * * * ensure Some standards implicate the protection, v. Sanders Lead Co., 17 O.S.H. Cas. their participation in the program;’’ etc. of individual employees to such an (BNA) 1197, 1203 (Rev. Comm’n 1995), paragraph (k)(9)(viii) states that ‘‘[t]he extent that the failure to have the protection the Commission held that the lead training program shall be conducted in in place for each employee permits the standard’s requirement for semiannual a manner that the employee is able to Secretary to cite on a per-instance basis. respirator fit-tests could be cited on a understand * * * [and] the employer However, where a single practice, method or per-employee basis because it involved shall ensure that each such employee is condition affects multiple employees, there evaluation of individual employees’ informed of [specific hazard can be only one violation of the standard. respirators under certain conditions information].’’ Secretary of Labor v. Hartford Roofing peculiar to each employee. Furthermore, A divided Occupational Safety and Co., 17 O.S.H. Cas. (BNA) 1361, 1365 in Catapano, 17 O.S.H. Cas. (BNA) at Health Review Commission vacated all (Rev. Comm’n 1995). In Hartford 1780, the Commission indicated that the but one of the respirator and one of the Roofing, the Commission held that general construction training standard, training violations. According to the abatement of an unguarded roof edge § 1926.21(b)(2), clearly supported per- majority, the requirement to provide required the single action of installing a employee citations for each individual respirators and ensure their use motion stopping system or line that employee not trained. However, the involved the single act of providing would constitute compliance for all Commission in Catapano found that the respirators to the employees in the employees exposed to a fall. Id. at 1367. Secretary had not cited training group performing the specified asbestos Accordingly, the failure to abate the violations on a per-employee basis, but work. 17 O.S.H. Cas. (BNA) at 1372. hazard could be cited only once rather, had impermissibly cited the Thus, the majority concluded, ‘‘the regardless of the number of exposed employer for each inspection in which plain language of the standard addresses employees. Ibid. However, where the employees were found not to have been employees in the aggregate, not employer fails to protect employees trained. Thus, the Commission affirmed individually.’’ Ibid. The majority from falls at several different locations only a single violation of the standard. reached this conclusion despite in the same building, a violation exists Ibid. acknowledging that various at each such location. J.A. Jones, 15 In the Ho decision, the Commission subparagraphs immediately following O.S.H. Cas. (BNA) at 2212. Thus, what veered from these principles and the cited provision required particularly constitutes an ‘‘instance’’ of a violation adopted an analysis focused on the employee-specific actions, such as fit- varies depending upon the standard. presence or absence of certain specific testing individual employees. Ibid. n. ‘‘Per-instance’’ can mean per-machine, words in the respirator or training 12. or per-injury, or per-location depending provision at issue. 20 O.S.H. Cas. (BNA) The majority adopted an equally upon the nature of the employer’s at 1369–1380. Under this approach, the narrow interpretation of the requirement compliance obligation. agency’s ability to enforce respirator and in § 1926.1101(k)(9)(i) to ‘‘institute a Per-employee violations are no training violations using per-employee training program’’ for all [exposed] different from other types of per- citations in appropriate cases turns on employees and ensure their instance violations. Just as the employer minor variations in the wording of the participation in the program.’’ must ensure that electrical equipment is requirements. According to the majority, this language safe in each location where it is Erik Ho, a Texas businessman, was requires the employer to have a single installed, Staley, 295 F.3d at 1343, the cited for multiple violations of the training program for all exposed employer must ensure that each construction asbestos standard’s employees and imposes a single duty to employee who requires PPE or training respirator and training provisions. Ho’s train employees generally. Id. at 1374. receives it. Hartford Roofing, 17 O.S.H. conduct was particularly flagrant. He Although paragraph (k)(9)(viii) Cas. (BNA) at 1366. The failure to hired eleven undocumented Mexican explicitly states that, ‘‘the employer provide an individual employee with an employees to remove asbestos from a shall ensure that each such employee is appropriate respirator is a discrete vacant building without providing any informed of [specific hazard instance of a violation of the general of them with appropriate protective information],’’ the majority found that respirator standard, 29 CFR 1910.134, equipment, including respirators, and ‘‘the mere use of the terminology ‘each because the standard requires an without training them on the hazards of such employee’ under (k)(9)(viii) does individual act for each employee: asbestos. Ho persisted in exposing the not demonstrate that these [training] unprotected, untrained employees to provisions define the relevant As long as employees are working in a asbestos even after a city building workplace exposure in terms of contaminated environment, the failure to provide each of them with appropriate inspector shut down the worksite, at exposure of individual employees.’’ respirators could constitute a separate and which point Ho began operating secretly Ibid. One Commissioner dissented, discrete violation * * *. [T]he condition or at night behind locked gates. The arguing that the plain wording of the practice to which the standard is directed citations charged Ho with separate respirator and training provisions

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authorizes OSHA to treat as a discrete another section of the paragraph that are personal protection.’’ Id. at 37 violation each employee not provided uniquely employee-specific.1 Ibid. In (emphasis added). The Commission did and required to use an appropriate contrast, in Ho the language requiring not refer to the portion of its Ho respirator, and each employee not compliance with such provisions decision that rejected reliance on ‘‘each trained in asbestos hazards. Id. at 1380– immediately followed the cited initial employee’’ language in the training 86 (Rodgers, Comm’r dissenting). provision, and the Commission declined requirement at issue there or that A divided panel of the U.S. Court of to read the initial provision in light of refused to consider any requirements in Appeals for the Fifth Circuit affirmed the subsequent requirements. However, the standard other than the cited initial the result reached by the Commission, the Commission’s interpretation in provision in deciding the nature of the in part on different grounds than those Manganas that the lead standard employer’s duty. articulated by the Commission majority. authorizes per-employee violations may For similar reasons, the Commission 401 F.3d at 368–376. The majority not be part of the holding of the case. affirmed separate violations of the agreed with the Commission that the After stating that the standard could be requirement to retrain whenever the language of the respirator provision did cited on a per-employee basis, the employer becomes aware of deviations not support per-employee penalties for Commission then stated that it declined from or inadequacies in the employee’s Ho’s failure to provide a respirator to to determine whether Manganas’s knowledge or use of the energy control each employee who performed covered failure to provide respirators to multiple procedures. Ho (construing 29 CFR asbestos work. Id. at 373–74. employees constituted a single violation 1910.147(c)(7)(iii)(B)). This provision, Disagreeing with the Commission, the or multiple violations on the ground the Commission found, ‘‘specifically majority found that the language of the that the amount of the total penalty targets deviations from or inadequacies training provision permits per-employee would not be affected under the in the employee’s knowledge or use of citations. Id. at 372. However, the circumstances of that case. Id. at 1999. the energy control procedures, an majority concluded that the agency’s In December 2007, the Commission occurrence that would trigger an decision to cite and penalize Ho for decided GM. 2007 WL 4350896. The employer’s obligation to retrain only each untrained employee was case involved citations issued in 1991 that particular employee.’’ Ibid. unreasonable absent circumstances charging GM, inter alia, with separate (internal quotations omitted). showing that different training actions violations for each of six employees not The Commission held that because would have been required because of trained in accordance with the lockout/ the training provisions impose a specific uniquely employee-specific factors. Id. tagout (LOTO) standard’s initial training at 373. Judge Garza dissented. He read paragraph, § 1910.147(c)(7)(i). This duty on the employer to train each the respirator provision to require action paragraph states, in relevant part, that employee, it is irrelevant whether the on a per-employee basis. Id. at 379 ‘‘[t]he employer shall provide training to employer may choose to provide the (Garza J. dissenting). He also found no ensure that the purpose and function of required training collectively, such as support for the majority’s ‘‘employee- the energy control program are holding a single training session for all specific unique circumstances’’ understood by employees * * *. (A) employees. Id. at 36. Under the wording requirement under the training Each authorized employee shall receive of the standard, the Commission provision and concluded that, in any training * * *.’’ The citation also concluded, ‘‘any failure to train would event, the requirement was met by Ho’s charged GM with separate violations for be a separate abrogation of the failure to train the employees and each of twelve employees not retrained employer’s duty to train each untrained ensure that they understood the in accordance with the standard’s employee.’’ Ibid. The Commission training. Id. at 379–80. retraining provision, distinguished the Ho decision on the In two subsequent decisions, the § 1910.147(c)(7)(iii)(B), which requires ground that the language at issue there, Commission stated that respirator and retraining whenever the employer is requiring ‘‘a training program for all training requirements worded slightly aware of inadequacies in the employee’s employees,’’ pertained to a single group differently from those at issue in Ho knowledge or use of the energy control of employees collectively exposed to may be cited on a per-employee basis. procedures. identical hazards. Ibid. In Secretary of Labor v. Manganas The Commission affirmed all of these C. The Agency’s Interpretation Painting Co., 21 O.S.H. Cas. (BNA) 1964, per-employee violations. It held that the 1998–99 (Rev. Comm’n 2007), the LOTO training paragraph, unlike the The Agency’s position is that despite Commission indicated that the initial initial paragraph at issue in Ho, states minor differences in their wording, all respiratory protection paragraph of the that ‘‘each employee’’ is to be trained PPE and training provisions in safety 1993 construction lead standard, and therefore ‘‘imposes a specific duty and health standards impose the same § 1926.62(f)(1), authorizes per-employee on the employer to train each individual basic duty on the employer to protect citations. That paragraph states, in employee.’’ 2007 WL 4350896 at 36. The employees individually—by providing relevant part, ‘‘[w]here the use of Commission also noted that other personal protective equipment, such as respirators is required under this section requirements in paragraph (c)(7) clarify a respirator, or by communicating the employer shall provide * * * and the individualized nature of the training hazard information through training. assure the use of respirators which duty, such as the requirement to record The individualized nature of the duty to comply with the requirements of this the employees’ names and dates of comply does not change because of the paragraph.’’ The Commission training; that the preamble indicates presence or absence of the words ‘‘each distinguished Ho on the ground that the that training involves consideration of employee,’’ or other words explicitly language in the cited provision employee-specific factors, and that ‘‘the stating that the employer’s duty runs to requiring the employer to provide core concept of lockout/tagout is each individual employee. Thus, the respirators ‘‘which comply with the existing PPE provisions may be cited requirements of this paragraph’’ means 1 The current version of § 1926.62(f)(1) is virtually separately for each employee who that compliance with paragraph (f)(1) is identical to the 1993 version at issue in Manganas. requires PPE but does not receive it, and The provision now states in relevant part, ‘‘[f]or predicated upon compliance with all of employees who use respirators required by this the training provisions may be cited the requirements in paragraph (f), section, the employer must provide respirators that separately for each employee who including fit-testing requirements in comply with the requirements of this paragraph.’’ requires training but does not receive it.

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The employee-specific nature of the § 1910.1001(j)(7)(iii) (asbestos). The which was also contained in the employer’s duty to provide PPE and employer must therefore account for standard cited in Ho, imposes a specific training may be demonstrated in several factors such as when individual duty to train each individual employee different ways. First, the employer must employees commence work subject to and may be cited on a per-employee take a separate abatement action for the training requirement and when they basis. 2007 WL 4350896 at 24. Ibid. each individual employee. Where are available for training. Individual c. The majority’s analysis amounts to respirators are required, the employer language differences also play a role. a ‘‘magic words’’ test for determining must give a separate respirator to each For example, if one employee the nature of the duty to comply with individual employee. Where training is understands only English, and another PPE and training requirements that is at required, the employer must impart employee understands only Spanish, odds with the Secretary’s intention and specific hazard information to each training must account for this does not make practical sense. There is individual employee. The employee- difference. The actions necessary to fit only a minor difference between the specific nature of the training a respirator to an individual employee’s language of the respirator requirement requirements is not altered because the face and to ensure that hazard in Manganas and that in Ho. In employer may choose to conduct information is received by an employee Manganas the requirement to comply training in a group session. As the therefore clearly entail consideration of with the provisions of the standard as a Commission held in GM, the duty to individual factors. whole is stated explicitly in the provide training is specific to each standard’s first sentence, while in Ho 1. The Ho Decision individual employee subject to the the requirement was implicit in that requirement. 2007 WL 4350896. Thus The Secretary believes that the sentence and was explicitly stated by regardless of how the training is Commission majority’s analysis in Ho is the remaining provisions of the conducted, the employer must ensure fundamentally flawed for several standard. Similarly, in GM the ‘‘each that each individual employee receives reasons discussed below. We discuss employee’’ language was in the first the required information at the this issue because it is important to an enumerated subsection of the training appropriate time. understanding of the Secretary’s standard, while in Ho it was in a later Second, unlike standards that do not interpretation of her standards and of subsection. As the preceding discussion permit per-employee citations, the PPE the clarifying amendments to the PPE makes clear, the agency did not intend and training requirements logically and training provisions. This final rule that minor wording variations among permit the employer to comply for one confirms the Secretary’s interpretation various PPE and training provisions employee and not another. In Hartford of standards of this kind. affect the agency’s ability to cite on a Roofing, the Commission found that a. The Ho majority’s analysis is per-employee basis. Furthermore, there installation of a motion stopping system inconsistent with the proper analytical is no sound reason for distinguishing at a roof edge was a single discrete framework outlined above. The among the various PPE and training action unaffected by the number of requirement to provide respirators requirements based on minor employees on the roof, and therefore because of environmental hazards differences in wording when all such could not be cited on a per-employee involves a separate discrete act for each requirements impose the same basic basis. 17 O.S.H. Cas. (BNA) at 1368–69. employee exposed to the hazard. duty—provision of appropriate The employer could not have complied Hartford Roofing, 17 O.S.H. Cas. (BNA) respirators and training to each for one employee without also at 1367. Eric Ho had eleven employees employee covered by the requirements. complying for all other employees performing Class I asbestos work; The requirements at issue in Ho were exposed to the hazard. therefore, he had to provide eleven not substantively different than those in By contrast, the actions necessary to separate respirators and ensure that Manganas and GM, and there should be comply with PPE and training each of the eleven employees used the no difference in the availability of per- requirements for one employee do not devices. Ho also had to ensure that each employee citations under these constitute compliance for any other employee received training on asbestos requirements. Moreover, applying the employee. To fully comply with these hazards. The cited asbestos respirator Ho majority’s analysis creates perverse requirements the employer must take as and training provisions required incentives in that an employer who many abatement actions as there are analytically distinct acts for each provides no respirators at all is eligible employees to be protected. The fact that employee, and therefore permitted per- for only a single citation under the the employer may comply for one or a employee citations. respirator provision at issue in Ho, few employees, while leaving many b. The majority’s analysis does not while the employer who provides others unprotected, strongly supports reflect either Commission precedent respirators, but fails to comply with the the availability of per-employee preceding Ho, or more recent specific fit-test requirements is liable for citations. Ho, 401 F.3d at 379 (Garza, J. Commission caselaw. Hartford Roofing per-employee violations. dissenting). reflects the guiding principle Although the Secretary does not Finally, compliance with PPE and distinguishing between requirements acquiesce in the Ho majority’s training provisions requires the that apply individually to each interpretation of the asbestos respirator employer to account for differences employee, such as respirator provisions, and training requirements at issue, the among individual employees. To and those that address hazardous agency is modifying the language of comply with respirator requirements, conditions affecting employees as a most of the initial respirator provisions the employer must, among other things, group. 17 O.S.H. Cas. (BNA) at 1366–67. adopted in the 1998 rule to expressly select respirators based on the specific Manganas recognizes the principle that state that the employer must provide respiratory hazards to which the a requirement to provide respirators each employee an appropriate employee is exposed and perform should be read in light of the associated respirator. There are several reasons for individual face-fit tests. E.g., provisions requiring individualized this. First, although the Secretary § 1910.134(d), (f). To comply with actions such as individual fit-testing. 21 believes that the respirator requirements training requirements, the employer O.S.H. Cas. (BNA) at 1998. And GM clearly support per-employee citations, must ensure that each employee holds that a training requirement employers may have some uncertainty receives the required information. E.g., containing ‘‘each employee’’ language, in light of the Ho decision. Second,

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although the Commission indicated in formulations, the exposed employee is that require the employer to ‘‘institute a Manganas that language similar to that the subject of the training requirement, training program’’ to clarify that the in the 1998 rule permits per-employee and compliance cannot be achieved employer’s duty is to train each penalties, that aspect of the decision unless and until each such employee employee in accordance with the could be viewed as dicta. Finally, the receives the required training. Therefore training program. The revised language 1998 respirator language is virtually the provisions requiring the employer to expressly identifies the subject of the same in all standards with respirator provide training to employees exposed training requirement as ‘‘each requirements, and the same wording can to a hazard, or to ensure that employees employee’’ and therefore imposes a be used to amend all of the standards. receive training, or that contain similar ‘‘specific duty on the employer to train The agency intends the new language to language, are plainly susceptible to per- each individual employee.’’ GM, 2007 clearly convey that the respirator employee citations in appropriate cases. WL 430896 at 36. The agency intends provisions in all OSHA standards GM, 2007 WL 4350896 at 36. No the revision to clarify without question impose a duty to provide an appropriate additional language is needed to clarify that the failure to train each individual respirator to each individual employee the intent of these provisions. employee covered by the training who requires respiratory protection. The A minority of training provisions state requirement may be considered a failure to provide an appropriate that the employer must ‘‘institute a separate violation with a separate respirator to each such employee may training program for all [exposed] penalty. expose the employer to per-employee employees and ensure their 2. Comments of the U.S. Chamber of citations. participation in the program’’ or contain OSHA also believes that the existing similar language. See e.g., Commerce language of the training provisions in § 1910.1001(j)(7)(i) (asbestos); The U.S. Chamber of Commerce, safety and health standards makes § 1910.1018(o)(1)(i) (inorganic arsenic); joined by the Associated Builders and reasonably clear that the training § 1910.1025(l)(1)(ii) (lead); Contractors, Inc. and the National obligation extends to each individual § 1910.1027(m)(4)(i) (cadmium). The Association of Home Builders, employee. Some of these provisions Agency disagrees with the Ho majority’s submitted comments challenging the explicitly state that ‘‘each employee’’ conclusion that this language requires Secretary’s legal authority to promulgate must be trained. For example, the the employer to have a training the final rule. (Exs. 28.1, 40.1, 82.1). The process safety management standard program, but does not impose a specific Chamber agrees with OSHA that states that ‘‘each employee presently duty to train each exposed employee. insubstantial differences in the wording involved in operating a process * * * The requirement that the employer of the PPE and training standards must be trained.’’ 29 CFR 1910.119(g)(i); ‘‘institute’’ the training program and should not affect resolution of the unit 29 CFR 1926.64(g) (construction); the ensure employee ‘‘participation’’ of violation, and appears to question the logging standard states that ‘‘[t]he indicates that the focus of the provision correctness of the Commission’s employer shall provide training for each is on the communication of hazard analysis in Ho. (Ex. 28.1 at 1). employee,’’ § 1910.266(i); the vinyl information to each employee. Nevertheless, the Chamber argues that chloride standard states that ‘‘[e]ach Furthermore, virtually all of the the Secretary lacks authority under employee engaged in vinyl chloride or provisions requiring a training program section 6(b) of the Act to issue a rule polyvinyl chloride operations shall be also contain language explicitly stating clarifying that each employee not provided training,’’ § 1910.1017(j); and that ‘‘each employee’’ must be informed provided PPE or training as required by the chromium standard states that ‘‘[t]he of specific hazard information. See the PPE and training standards may be employer shall ensure that each § 1910.1001(j)(7)(iii) (asbestos); considered a separate violation for employee can demonstrate knowledge § 1910.1018(o)(1)(ii) (inorganic arsenic); penalty purposes. (Ex. 28.1 at 1–3). In of [the § 1926.1126(j)(2) (construction). § 1910.1025(l)(1)(v) (lead); the Chamber’s view, section 6(b) limits The Commission in GM held that § 1910.1027(m)(4)(iii) (cadmium). the Secretary’s rulemaking authority to provisions that explicitly require Accordingly, the duty to ‘‘institute a defining the conditions or practices training for ‘‘each employee’’ may be training program’’ runs to each required to provide safe and healthful cited separately for each employee not individual employee subject to the workplaces, while section 17 commits trained. 2007 WL 4350896 at 36. training requirement, and a discrete to the Commission alone the Accordingly, these provisions require violation occurs for each such employee determination whether one or more no amendatory action. who does not receive training. violations of standards have occurred. Some standards contain provisions Ho, however, states the Commission’s The Administrative Procedure Act is a stating that the employer must train current interpretation as to the meaning further limitation on the Secretary’s ‘‘employees’’ exposed to the hazard of the construction asbestos standard’s authority, the Chamber argues, as addressed by the standard. For example, training provision. The Ho majority section 558(b) states that ‘‘[a] sanction the hazardous waste operations considered the language in may not be imposed * * * except standard states that ‘‘[a]ll employees § 1926.1101(k)(9)(i) to impose a duty to within jurisdiction delegated to the [exposed to hazardous substances] shall have a training program for employees agency and as authorized by law.’’ 5 receive training,’’ § 1910.120 (e)(1); collectively. The failure to train each of U.S.C. 558(b) (1994). while the benzene standard states that a number of individual employees on The Chamber also disagrees with the ‘‘the employer shall provide employees asbestos hazards was therefore proposition in the proposed rule’s with information and training at the considered a single violation. Although preamble that a separate violation time of their initial assignment to a the Secretary does not accept the Ho occurs for each employee who is not work area where benzene is present.’’ majority’s interpretation, the decision provided PPE or training. The Chamber § 1910.1028(j)(3)(i). There is no may be a significant impediment to the maintains that there might be only one substantive difference between the consistent and effective enforcement of violation if the employer failed to cover requirement to train ‘‘employees’’ the asbestos standard and other a certain point in training a group of exposed to a hazard and the standards that contain similar wording. employees or failed to provide the right requirement to train ‘‘each employee’’ Accordingly, OSHA believes it is cartridge for the respirators provided a exposed to the hazard. Under both appropriate to amend those standards group of similarly exposed employees.

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(Ex. 28.1 at 4, 5). In light of these contrary, the final rule amendments 67 (‘‘[T]he condition or practice to asserted legal defects in the proposed recognize and respect the Commission’s which [the general respirator] standard rule, the Chamber recommends that the adjudicative role under section 10(c) of is directed, within the meaning of Secretary address the problem presented the Act. section 3(8) of the Act, is * * * the by the Ho case by continuing to litigate The Commission’s authority under individual and discrete failure to the issue before the Commission. (Id. at section 17 to assess penalties is not provide an employee working in a 4). implicated by this final rule. Where the contaminated environment with a a. OSHA disagrees with these Secretary has cited separate violations proper respirator.’’). The Arcadian court arguments for the following reasons. of the same standard, the Commission expressly recognized that an individual First, the Chamber fundamentally may be required to determine whether employee may be the unit of misinterprets both the rule and the Act the standard authorizes the type of per- prosecution ‘‘if the regulated condition in suggesting that the amendments instance violations charged. That issue, or practice is unique to the employee usurp the Commission’s authority under however, turns entirely on the proper (i.e., failure to train or remove a Section 17 to determine the amount of interpretation of the standard’s text. worker)’’. 110 F.3d at 1199 (citing penalties. As the new paragraphs to the Hartford Roofing, 17 O.S.H. Cas. (BNA) Hartford Roofing, 17 O.S.H. Cas. (BNA) introductory sections of the subparts at 1367. The Commission’s role is 1361). make clear, the final rule does not limited to determining whether the The foregoing discussion plainly purport to set penalty amounts. Instead Secretary’s interpretation that the disposes of the Chamber’s claim that the it clarifies that the employer’s standard permits per-instance violations final rule imposes a sanction without an substantive duty under existing PPE and is reasonable. Martin v. OSHRC, 499 express authorization, in violation of training standards is to comply with U.S. 144 (1991). Where a standard is § 558 of the APA. Nothing in the final respect to each individual employee reasonably susceptible to citation on a rule imposes a sanction. Insofar as the who must use PPE or receive training, per-instance basis, the Secretary’s rule addresses penalties, it does so only and it provides clear notice that authority to propose a separate penalty indirectly, by informing the public that employers may be cited on a per- for each such violation is clear. ‘‘The the agency may exercise prosecutorial employee basis for violations. For plain language of the Act could hardly discretion to cite on a per-employee example, § 1910.9 states ‘‘[s]tandards in be clearer’’ in authorizing a separate basis for violations of PPE and training this part requiring personal protective penalty for each discrete instance of a standards. The Secretary’s charging equipment (PPE), including respirators violation of a duty imposed by a decision whether to issue a single and other types of PPE, because of standard. Kaspar Wire Works, Inc. v. citation or separate per-employee hazards to employees impose a separate Secretary of Labor, 268 F.3d 1123, 1130 citations is not itself a penalty. Chao v. compliance duty with respect to each (DC Cir. 2001). OSHRC, 480 F.3d at 325. Moreover, employee covered by the requirement. The Commission’s authority under citations reflect only the Secretary’s The employer must provide PPE to each section 17(j) to ‘‘assess all civil penalties proposed penalty amounts—the employee required to use the PPE and provided in this section’’ does not Commission, not the Secretary, actually each failure to provide PPE may be permit it to review the Secretary’s assesses penalties. American Bus Ass’n considered a separate violation.’’ prosecutorial decision to cite and v. Slater, 231 F.3d 1 (DC Cir. 2000), (emphasis added). propose a separate penalty for each cited by the Chamber, is obviously Section 6(b) of the Act authorizes the discrete violation of a standard. Chao v. distinguishable in that the rule at issue Secretary to ‘‘promulgate, modify or OSHRC (Saw Pipes USA, Inc. and Jindal there authorized the agency to levy fines revoke any occupational safety or health United Steel Corp.), 480 F.3d 320, 324 in specific amounts directly against standard’’ by following certain n. 3 (5th Cir. 2007). The Commission’s regulated entities for violations of bus procedures, and the Secretary is adjudicative functions are to determine accessibility requirements. In any event, exercising this express authority here. whether the facts support the multiple section 9(a) of the OSH Act expressly As explained in the preceding violations charged, and to apply the authorizes the Secretary to issue a subsections, current Commission statutory criteria to determine the citation for violation of ‘‘a requirement precedent indicates that the specific amount of the penalty to be assessed for * * * of any standard,’’ and section 17 wording of some respirator and training each proven violation. Id. at 325. These states that a penalty may be assessed provisions may not support per- functions are not affected by the final ‘‘for each violation.’’ Thus, the final rule employee citations while the slightly rule, which concerns only the clearly falls ‘‘within jurisdiction different wording of other respirator and Secretary’s interpretation that the PPE delegated to the agency’’ and does not training provisions does support such and training standards are susceptible to violate section 558 of the APA. citations. While the Secretary believes per-employee citations. b. The Chamber’s criticisms of that the PPE and training standards Reich v. Arcadian Corp., 110 F.3d isolated statements in the proposal’s already support her interpretation, she 1192 (5th Cir. 1997), does not support preamble are irrelevant to the issue of is amending the standards to conform to the Chamber’s argument. There, the the Secretary’s legal authority to the Commission’s view that precise Fifth Circuit observed that OSHA promulgate the final rule. (Ex. 28.1 at 4, language is necessary. The amendments standards address ‘‘conditions’’ and 5). The Chamber chiefly challenges the also address the Commission’s concern ‘‘practices’’ and that the unit of proposal’s statement that a separate that the current language of some violation of a standard must reflect the violation occurs for each employee not standards may not provide fair notice. particular hazardous conditions provided required PPE or training, Only the Secretary has the authority to regulated. 110 F.3d at 1198. While most arguing that in some situations, the amend her standards in this manner. standards require abatement of employer’s failure to provide PPE or The Secretary’s exercise of her hazardous conditions affecting training to a class of employees can be express authority to amend her employees collectively, the condition or considered a single violative condition standards to add language the practice to which the PPE and training or practice for which only a single Commission has indicated is necessary standards are directed is the protection citation could be issued. (Ex. 28.1 at 4, is hardly a usurpation of the of individual employees. Hartford 5). However, the Secretary clearly has Commission’s authority. To the Roofing, 17 O.S.H. Cas. (BNA) at 1366– the authority to make specific changes

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to the wording of her PPE and training employer failed to provide any confusion and ensure consistent and standards, and to announce her respirators to employees, and a case effective enforcement of OSHA’s interpretation of the amended rules, by where the employer provides standards (Ex. 29.1). The American following the procedures in section 6(b). noncomplying respirators to employees. Federation of Labor and Congress of At most, the Chamber’s criticisms go to (Ex. 28.1 at 4). In both cases, employees Industrial Organizations (AFL–CIO) the legal effect of amendments in some are not protected. The Chamber asserts added that the rule will remove any specific circumstances. Whether the that ‘‘it all depends upon whether there doubt that employers are obligated to Secretary’s interpretation will be are different violative conditions,’’ but provide required PPE and training to accepted by the Commission or a court fails to explain how or why factual each worker and that employers who in these circumstances, if and when differences between Ho and its fail to do so for each individual they arise, is a matter to be resolved in hypothetical case would support the employee are subject to per-instance an enforcement proceeding. availability of per-employee citations in citations for each employee left In any event, the Chamber’s one case but not the other. unprotected (Ex. 32.1). The American arguments are wholly unpersuasive on c. Finally, the Chamber’s proposed Industrial Hygiene Association (AIHA) their merits. The Chamber asserts that solution to the problem presented by the urged OSHA to ‘‘[m]ove forward with there might be only one training Ho case is no answer at all. The the completion of this proposed rule in violation if the employer fails to cover Chamber urges the Secretary to continue as timely a manner as possible to avoid a certain required element in training a to litigate the issue by raising the any potential delays in the protection of group of employees and there might be arguments in the proposed rule directly workers’’ (Ex. 18.1). only one respirator violation if the to the Commission in the next A number of commenters also employer fails to provide the right appropriate case. Thus, the Chamber opposed the rulemaking (see, e.g., Exs. cartridge for respirators used by a class posits that while the Secretary lacks 2, 19.1, 20.1, 22, 25.1, 26.1, 27.1, 28.1, of employees exposed to the same statutory authority to issue a rule 30, 38.1, 40.1, 41.1, 45.1, 48.1, 49.1, hazard. (Ex. 28.1 at 4, 5). In these cases, clarifying her interpretation that the PPE 51.1, 79 pp 35–46, 79 pp 73–77, 79 pp the Chamber suggests that the violation and training standards are susceptible to 87–92, 80.1, 81.1, 82.1). Several involves a single action by the employer per-employee citations, the Commission commenters expressed concern about affecting multiple employees alike. Id. would accept this interpretation as a OSHA’s authority to promulgate the The Secretary rejects this reasoning for litigating position and change its standards (see, e.g., Exs. 28.1, 40.1, 80.1, the same reasons she rejects the doctrine. This appears wholly 82.1). OSHA’s response to these Commission majority’s analysis in Ho. counterintuitive. The central tenet of the concerns is in the legal authorities The hazardous ‘‘condition’’ or Secretary’s position is that the statute section of this preamble. A number of ‘‘practice’’ addressed by the PPE and supports her approach. To accept the commenters also expressed concerns training standards is the failure to Chamber’s comments as a basis for not about the cost impact of the standards protect each individual employee— adopting a final rule would on employers. These concerns are through personal protective equipment substantially weaken, if not destroy, the addressed in the economic analysis or training—from the hazards of his or legal underpinning of the Secretary’s sections below. Remaining objections her or work environment. Hartford position. For these reasons, the and recommendations are discussed in Roofing, 17 O.S.H. Cas. (BNA) at 1367. Secretary rejects both the Chamber’s the following sections. The hazardous condition addressed by legal arguments and its recommendation New Sections Added to Subpart A of the standards is always the same for a non-regulatory course of action. regardless of the actions taken by the Parts 1910 Through 1918, and Subpart employer to comply or not comply. It IV. Summary and Explanation of the C of Part 1926 does not matter that a single action or Proposed Rule OSHA has added a new section to decision by the employer results in In this final standard, OSHA is Subpart A of Parts 1910, 1915, 1917 and several employees being exposed to amending the standards in 29 CFR Parts 1918, and to Subpart C of Part 1926. hazardous working conditions without 1910, 1915, 1917, 1918 and 1926 to These subparts contain general PPE or training—the unit of violation provide additional clarity and information about the scope and remains the individual unprotected consistency about the individualized applicability of the standards in each employee. See Chao v. OSHRC, 380 nature of the employer’s duty to provide part. The proposed new sections contain F.3d. at 323 (although multiple training and personal protective two paragraphs, which are identical for recordkeeping violations may stem from equipment (including eye, hand, face, each new section. The first paragraph a single company policy, each failure to head, foot and hearing protection, expressly states that, for standards in record may represent a separate and respirators, and other forms of PPE) the part requiring employers to provide distinct violation). Secretary of Labor v. under standards in these parts. The final PPE, employers must provide PPE to Caterpillar Inc., 15 O.S.H. Cas. (BNA) rule revises existing regulatory language each employee required to use the PPE, 2153, 2173 (Rev. Comm’n 1993). For the and adds new sections to the and each failure to provide PPE to an same reason, the availability of per- introductory subparts to Parts 1910 employee imposes a separate employee training violations does not through 1926. The following discussion compliance duty, and thus may be depend upon whether the employer addresses comments to the proposed considered a separate violation. The could have conducted a single group language, OSHA’s response to those new paragraph applies to all standards training session. GM, 2007 WL 4350896 comments, the actual final rule in the part that require provision of PPE, at 36. language, and how the final rule is to be regardless of their wording. For The Chamber’s approach is also interpreted. example, § 1910.132 requires employers internally inconsistent. The Chamber A number of commenters offered to provide PPE when needed, and also appears to acknowledge that per- broad support for the revisions (see, e.g., recognizes that an employer may allow employee citations should have been Exs. 3, 5, 18.1, 21.1, 29.1, 32.1, 39.1, an employee who voluntarily provides available in the Ho case. (Ex. 28.1 at 1, 44.1, 83.1, 84.1). ORC Worldwide appropriate PPE he or she owns to use 4). There is no logical distinction remarked that the rulemaking is an that PPE in place of the employer- between the situation in Ho, where the appropriate action to eliminate provided equipment. See

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§ 1910.132(h)(6). The underlying standard, and each failure to train an widespread confusion on this matter. obligation to provide PPE to each employee may be considered a separate The final paragraphs make clear that employee is the employer’s, and each violation. they apply to all of the standards, and employee who lacks required PPE may The AFL–CIO’s first concern was that it will be quite clear that they apply be considered a separate violation. The the first sentence of paragraph (a), by throughout all the standards. This is second paragraph expressly states that singling out respirators as an example of also an approach used successfully in standards in the part requiring training the PPE involved, ‘‘[c]ould lead to the other rules. For example, in the PPE on hazards and related matters, such as view that the requirement focuses more payment standard, the Agency requires standards requiring that employees narrowly on respirators and not on the employers to pay for PPE throughout receive training or that the employer employer’s more expansive duty to each part by language stated in only one train employees, provide training to provide all forms of PPE to each standard in the part (72 FR 64342, employees or institute or implement a worker’’ (Ex. 32.1). It suggested that new November 15, 2007). The Agency is training program, impose a separate text be inserted after the word unaware of any confusion caused by the compliance duty to each employee ‘‘including,’’ which listed various approach used in PPE payment, and it covered by the requirement. Each failure specific types of PPE, such as foot, does not expect any confusion for this to adequately train an employee may be hand, and eye protection. Second, the clarification of the training and PPE considered a separate violation. AFL–CIO suggested inserting the words standards. Nevertheless, in its future The new sections reflect the agency’s ‘‘with respect’’ after the word ‘‘duty’’ in PPE and training standards, or when intent, as discussed in the preceding the first sentence of paragraphs (a) and existing standards are modified, the sections of this preamble, that standards (b) to make clear that the employer’s Agency will attempt to make the requiring the employer to protect separate compliance duty was owed to requirement to protect each employee employees by providing personal each employee. clear, so as to avoid additional protective equipment or imparting The Agency agrees with these confusion about the matter. hazard information through training recommendations in large part and has impose a specific duty to protect each made corresponding changes in the final OSHA’s Egregious Policy individual employee covered by the rule. It is not OSHA’s intent to limit the A number of commenters expressed a requirement. The new sections are PPE duties referenced in these sections concern about OSHA’s instance-by- placed in the introductory subparts of to respirators only. But rather than instance citation policy and the impact each part because the principle include a list of types of PPE, which of the rulemaking on that policy (see, expressed in each section applies might itself be read as limiting, the final e.g., Exs. 2, 14.1, 19.1, 22, 25.1, 27.1, 30, generally to all PPE and training rule merely inserts the words ‘‘and other 36, 37.1, 38.1, 40.1, 41.1, 42.1, 45.1, standards in the part. OSHA intends the types of PPE’’ after the word 49.1, 51.1, 77, 79 pp 87–92, 80.1, 82.1). new sections to apply regardless of ‘‘respirators’’ in the first sentence of For example, the American Association differences in wording between the PPE paragraph (a). The final rule also of Homes and Services for the Aging and training provisions in the various includes the words ‘‘with respect’’ (AAHSA) remarked that: parts. The new sections provide where suggested by the unions. unmistakable notice to employers that [t]he Occupational Safety and Health Alternative Approach Administration (‘‘OSHA’’) states that the they are responsible for protecting each practice of ‘‘grouping’’ violations into a employee covered by the PPE and The Blueoceana Company (Ex. 77.) single citation is the more common method training standards, and consequently, expressed a concern that OSHA’s of dealing with multiple violations, whereas that they may be subject to per- proposal to include these general ‘‘per instance’’ violations are generally used employee citations and proposed language sections did not provide to deter ‘‘flagrant violators.’’ This principle is penalties for violations. enough clarity in OSHA’s regulations, documented in OSHA’s CPL 2.80 Directive, The AFL–CIO, supported by the entitled ‘‘Handling of Cases to be Proposed and that the Agency should change the for Violation-by-Violation Penalties,’’ Building and Construction Trades language of each training and PPE Department, proposed two changes to released on October 21, 1990 (the standard to make the requirement to ‘‘Directive’’). Specifically, the Directive these general language sections (Ex. provide PPE and training to each provides that only flagrant violations of the 32.1, 39.1, 70 pp. 82–83, 83.1, 84.1). As employee clear within each of those Occupational Safety and Health Act (the proposed, these sections read as follows: standards. Specifically, Blueoceana ‘‘Act’’) are appropriate bases for ‘‘per (a) Personal protective equipment. recommended that: instance’’ violations. Despite the plain Standards in this part requiring the employer meaning of the Directive, the Clarification While we assume that all such PPE and to provide personal protective equipment does not distinguish between flagrant Training regulations will be included within (PPE), including respirators, because of violations for which ‘‘per instance’’ citations the embrace of any final rule, it would have hazards to employees impose a separate are appropriate and non-flagrant or been much ‘‘cleaner’’ to go directly to the compliance duty to each employee covered unintentional violations for which source of any regulatory ambiguity and by the requirement. The employer must ‘‘grouping’’ is appropriate. As a result, the rectify such defects right where they exist. As provide PPE to each employee required to standards should be revised to make this use the PPE, and each failure to provide PPE proposed, the ‘‘per employee rule’’ will distinction (Ex. 36.1). leave, unmolested, the dichotomies to an employee may be considered a separate Con-Way Inc. remarked that ‘‘The violation. complained of in Ho, and will cause (b) Training. Standards in this part employers and employees to then look proposed rule effectively penalizes the requiring training on hazards and related quizzically at the ‘‘newly finalized’’ sections employer multiple times for one matters, such as standards requiring that while scratching their heads (Ex. 77). infraction. There is no limitation within employees receive training or that the OSHA does not believe that it is the language to make it apply to only employer train employees, provide training necessary to change each PPE and egregious circumstances as OSHA has to employees, or institute or implement a training standard to clarifiy the agency’s indicated. And that’s a problem’’ (Ex. training program, impose a separate interpretation. Most employers already 79, p 89). The American Society of compliance duty to each employee covered Safety Engineers (ASSE) added that: by the requirement. understand that they must provide The employer must train each affected required PPE and training to each The failure to provide appropriate PPE or employee in the manner required by the covered employee, so there is not provide adequate training on how to use PPE

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can be an egregious act by an employer with violations under a single penalty or propose construed as such. The Agency must little or no regard for employee safety and aggregate, per-instance violations, the have the flexibility to modify its health. In practicality and in most proposed language does not provide enforcement and policies in order to workplaces, however, violations of PPE inspectors with enough guidance at the time deploy its enforcement resources standards are largely technical in nature and of an inspection regarding when to apply the efficiently, to meet its public policy do not result in harm to an employee. per-instance penalties versus a single Violations often can reflect unintended penalty. OSHA should reserve issuing per- goals, and to respond to changing mistakes in its use by employees, a instance violations for only the worst-case conditions and unforeseen supervisor’s mistaken understanding, or an offenders that require strong deterrents to circumstances. To fix agency individual’s failure to follow an employer’s violating health and safety standards. The enforcement policies in a rulemaking or SH&E professional’s best efforts to help proposed language seems to direct an OSHA such as this would limit that flexibility. that employee be protected. In such cases, inspector to the per-instance approach Moreover, the directive applies to any where the overall intent of the employer is regardless of the circumstances or the degree number of OSHA standards, not just the to meet or even exceed the OSHA standard of violation. This potential practice could and the overall approach in the workplace PPE and training standards being cause unnecessary economic and time modified in this rulemaking. For reflects a commitment to safety and health, constraints on small businesses that have not a final rule should protect such employers committed flagrant violations of the example, per-instance citations under against the application of the ‘‘per employee’’ Administration’s health and safety standards OSHA’s injury and illness penalty (Ex. 37.1). (Ex. 38.1). recordkeeping regulation and machine guarding requirements are covered by The National Maritime Safety OSHA wants to make it absolutely the directive. There is no reason to Association (NMSA) remarked: ‘‘We clear that this final rule simply clarifies affect the future enforcement of those note that nowhere in the proposed rule that the PPE and training standards are rules in this action, which is limited to is there a reference to the OSHA legally susceptible to per-employee PPE and training requirements. Compliance Directive ‘Handling of citations. Nothing in the final rule Cases to be Proposed for Violation by addresses the circumstances in which Revisions to Specific Respirator Violation Penalties’ policy. If OSHA the Secretary will or will not issue per- Paragraphs truly intends for this regulation to apply employee citations in particular cases. OSHA proposed revisions to the to flagrant or egregious violators then The issuance of per-employee citations, the proposed rules must state this in initial respiratory protection paragraph like other types of per-instance in a number of standards in parts 1910, unequivocal language. Moreover, citations, is a matter of prosecutorial relevant Compliance Directives should 1915 and 1926 to add language discretion wholly outside the scope of explicitly stating that the employer must be appropriately promulgated and this rulemaking. implemented’’ (Ex. 80.1). The provide an appropriate respirator to At present, OSHA’s policy on the each employee required to use a Associated Builders and Contractors, issuance of per-instance citations and Inc. (ABC) suggested OSHA incorporate respirator and implement a respiratory proposed penalties is outlined in protection program for each such its instance-by-instance policies directly Directive CPL 2.80, Handling of Cases into the rulemaking to ensure OSHA’s employee. The affected standards To Be Proposed for Violation-By- include the general respirator standard, egregious policies would not be changed Violation Penalties. The directive in the future, stating that: § 1910.134, most general industry toxic- contains instructions to OSHA substance health standards in Subpart Z The final rule’s regulatory language, as personnel on the criteria to be of part 1910, the shipyard employment opposed to the preamble, needs to be revised considered in determining whether to asbestos standard, § 1915.1101, and the to make absolutely clear that the more charge a separate violation and propose construction industry expansive interpretation is not intended and a separate penalty for each discrete cannot arise out of this rulemaking, i.e., that methylenedianiline, lead, asbestos, and instance of a violation of a standard or cadmium standards, §§ 1926.60, 62, any (and every) PPE training violation will regulation. The directive covers the not be ‘‘considered a separate violation.’’ The 1101, and 1127. codified regulatory language, not the issuance of per-employee citations and Section 1910.134 contains general preamble, should specify the particular proposed penalties for violation of PPE respiratory protection requirements for circumstances under which an employer’s and training standards. The per- General Industry (part 1910), Shipyards failure to train will be considered as separate employee citations in the Ho and GM (part 1915), Marine Terminals (part violations. This could be done, for example, cases were issued pursuant to CPL 2.80. 1917), Longshoring (part 1918), and by expressly incorporating the specific OSHA does not believe that it is criteria set forth in CPL 02–00–080 (formerly Construction (part 1926). The existing appropriate to refer in this final rule to section 1910.134(a)(2) states: CPL 2.80) that identifies the conditions under Directive CPL 2.80, or to discuss the which the Commission would consider as a circumstances in which per-employee [r]espirators shall be provided by the flagrant violation has occurred (Ex. 40.1). citations might be issued for PPE and employer when such equipment is necessary to protect the health of the employee. The A few commenters incorrectly training violations. As explained above, believed that the final rule amendments employer shall provide the respirators which the agency’s discretion to issue such are applicable and suitable for the purposes would require OSHA inspectors to issue citations is not a subject of this intended. The employer shall be responsible instance-by-instance citations and rulemaking. Furthermore, there is no for the establishment and maintenance of a penalties (see, e.g., Exs. 2, 14.1, 30, 38.1, ambiguity in the current directive as to respiratory protection program which shall 41.1, 49.1, 51.1). Michal L. Illes (Ex. 2) its application to per-employee PPE and include the requirements outlined in recommended that any instance-by- training violations. Thus, there is no paragraph (c) of this section. instance penalty system for training need for further clarification on this OSHA proposed to revise the first and should be limited to employers with 50 point. last sentences of paragraph (a)(2) of or more employees. The Printing Several additional factors militate section § 1910.134. As proposed, the Industries of America/Graphic Arts against including references to the first sentence read, ‘‘[r]espirators shall Technical Foundation (PIA/GATF) directive in the final rule. The directive be provided by the employer to each stated that: reflects the agency’s current employee when such equipment is While OSHA compliance inspectors may enforcement policy; it is not a standard necessary to protect the health of such have the flexibility to group multiple or regulation and should not be employee’’ (emphasis added). As

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proposed, the last sentence read, ‘‘[t]he 1926.1101 to state, ‘‘[f]or employees institute or provide a training program employer shall be responsible for the who use respirators required by this for employees exposed to hazards. The establishment and maintenance of a section, the employer must provide Commission had indicated that the respiratory protection program, which each employee an appropriate requirement in section shall include the requirements outlined respirator that complies with the 1926.1101(k)(9)(i) to ‘‘institute a training in paragraph (c) of this section, for each requirements of this paragraph’’ program for all employees who are employee required by this section to use (emphasis added). The Agency likely to be exposed in excess of a PEL a respirator’’ (emphasis added). This proposed revising paragraph (h)(2)(i) to and for all employees who perform language has been carried through to the state, ‘‘[t]he employer must implement a Class I through IV asbestos operations, final rule, with one change discussed respiratory protection program in and shall ensure their participation in below. Section 1910.134, as revised in accordance with § 1910.134(b) though the program’’ is not sufficiently explicit this rulemaking, will apply to (d) (except (d)(1)(iii)), and (f) through as to the employer’s duty to ensure that construction under section 1926.103. (m) for each employee required by this each employee is trained. A number of AAHSA noted that the proposed new section to use a respirator’’ (emphasis other standards include similarly language in the last sentence, when read added). Identical language revisions worded training provisions. literally, created an anomaly (Ex. 36.1). were proposed for the initial respirator Accordingly, the final rule revises That is, the language requires employers paragraphs in other toxic-substance section 1926.1101(k)(9)(i) to state, in to establish and maintain ‘‘a respiratory health standards; only the section and relevant part, ‘‘[t]he employer shall train protection program * * * for each paragraph numbers were different. each employee who is likely to be employee. * * *’’ It is not OSHA’s These revisions are carried through in exposed in excess of a PEL, and each intent that employers create separate the final rule with the change to ‘‘which employee who performs Class I through programs for each of their employees; covers each employee’’ to eliminate the IV asbestos operations, in accordance rather employers need have only one potential ambiguity described above. with the requirements of this section’’ program covering all of their employees The National Association of Home (emphasis added). Similar revised who wear respirators. OSHA has Builders (NAHB) suggested that these language is adopted for training sections corrected this problem in the final rule amendments might create an ambiguity in other standards that contain similar by dividing the proposed sentence into (Ex. 43.1, 59). Focusing on the wording to section 1926.1101(k)(9)(i). two sentences, the last of which reads requirement that employers select an The amended training provisions will ‘‘The program shall cover each ‘‘appropriate’’ respirator that ‘‘complies conform to the training provision that employee required by this section to use with the requirements of this the Commission in GM interpreted to a respirator.’’ paragraph,’’ NAHB suggested that the permit per-employee citations. The National Paint and Coating word ‘‘appropriate’’ might impose some The Association of Environmental Association was concerned that the requirement in addition to being in Contractors (AEC) objected to this proposed revision’s requirement to compliance with the requirements of the language (Ex. 34.1). Its members are provide respirators to each employee paragraph. However, OSHA intends no asbestos abatement contractors who could be read to require that a separate such additional requirement; a have negotiated a collective bargaining respirator be assigned to each employee respirator is ‘‘appropriate’’ if it complies agreement with a local union under (Ex. 22). OSHA does not believe that with the requirements of the paragraph. which the union provides the training this is a plausible construction of the The word ‘‘appropriate’’ is included to required. Its concern is that training language or that employers would be emphasize the employer’s duty to provided by the union, which is misled by this change. Rather, the plain provide an adequately protective otherwise compliant with the standard, language merely evinces the intent to respirator as delineated by the standard. might not be acceptable because it was ensure that appropriate respiratory OSHA believes that all of these not provided by the employer. This protection is provided to each employee revisions are appropriate in light of the concern is unfounded. The intent of the when needed on the worksite, and there Ho majority’s narrow interpretation of new language is to impose a duty on is no requirement imposed by this the asbestos respirator provision. OSHA employers to ensure each employee is language to assign particular respirators is adding explicit ‘‘each employee’’ properly trained, not to require each to particular employees. language to section 1910.134 and to the employer to actually conduct the OSHA proposed similar revisions to initial respirator paragraphs of toxic- training. The employer’s duty to train the initial respirator paragraphs of toxic substance health standards to address each employee may be discharged by substance standards in parts 1910, 1915 the Commission’s concern that this ensuring employees have received and 1926. The initial respiratory language is necessary to inform adequate training provided by a union protection paragraph of the construction employers of their specific duty to or other third party, and indeed OSHA asbestos standard, which is virtually provide a respirator to each individual has long taken this position in identical to all respirator sections employee required to use a respirator. interpreting similar language under the revised in this rule, states that ‘‘[f]or The revisions will improve these Hazard Communication Standard (Letter employees who use respirators required standards by conforming them to each to Frank Pelligrini, May 11, 1988). There by this section, the employer must other and to the revised section is no need to change the proposed provide respirators that comply with the 1910.134, and contribute to a greater language to accommodate AEC’s requirements of this paragraph.’’ awareness of the importance of full comment. § 1926.1101(h)(1). The standard also compliance with these important Stericycle argued that this language states that, ‘‘[t]he employer must requirements. ‘‘[i]mplies individual customized implement a respiratory protection training rather than attending group program in accordance with Revisions to Specific Training training sessions.’’ (Ex. 35.1.) OSHA § 1910.134(b) through (d), (except Paragraphs disagrees, and does not believe that the (d)(1)(iii)), and (f) through (m).’’ The final rule carries through the new language can reasonably be read to § 1926.1101(h)(2). proposed revisions to those training exclude group training. Notably, no OSHA proposed to revise the first provisions in safety and health other participant in this rulemaking has sentence of paragraph (h)(1) of section standards that require the employer to suggested this interpretation of the

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provision. Regardless, it is OSHA’s (ASSE) commented that the impact of understanding, or an individual’s failure intent that employers may satisfy this the rulemaking is ‘‘ambiguous’’ with to follow an employer’s or * * * [safety requirement through group training, respect to a worksite where either the and health] professional’s best efforts to provided that each employee in the ‘‘general contractor, or a subcontractor help that employee be protected.’’ (Ex. group receives and understands the is overseeing provision of PPE or 37.1) training. training’’ (Ex. 37.1). These comments appear to address As explained above, this rulemaking situations in which an individual State Plan Issue does not address the circumstances in employee’s failure to use required PPE The Public Risk Management which per-employee citations might be may result from unpreventable Association (PRIMA), an organization of issued. The final rule does not broaden employee misconduct; that is, risk management professionals for or narrow the application of the misconduct that occurs despite the public entities and local governments, Agency’s current multi-employer existence of an adequately argued against the proposal on the citation policy. For more discussion on communicated and enforced work rule grounds that it would discourage states this issue, see the final rule for that would have prevented the from pursuing authorization to ‘‘Employer Payment for Personal violation. Unpreventable employee administer a state plan under section 18 Protective Equipment’’ (72 FR 64342, misconduct is an affirmative defense to of the OSH Act. States would be 64363). a violation of a standard. Thus, if the discouraged, PRIMA argues, because This rulemaking does not impose any employer proves that the elements of ‘‘[t]hey may be subjecting themselves new substantive requirements for the defense are satisfied with respect to and their political subdivisions to employers and serves only to clarify the a citation alleging a violation for an prohibitive substantial financial duty to provide personal protective individual employee’s failure to use penalties for a good faith effort toward equipment and training to each required PPE, the employer is not liable. compliance.’’ (Ex. 26.1; see also Exs. employee. Therefore, the application of Nothing in the final rule affects the 66.1, Ex. 79 p. 97.) OSHA’s multi-employer citation policy applicability of the affirmative defense OSHA disagrees for a number of (CPL 02–00–124) is not affected. of unpreventable employee misconduct reasons. Initially, as explained in detail to a citation issued on a per-employee elsewhere in the preamble, the standard Employer Liability for Employee basis. Therefore, OSHA does not agree does nothing to change regulated Misconduct with these commenters that the final entities’ compliance obligations. The Several rulemaking participants rule will increase employers’ liabilities standard places no new duties on public expressed concern that the proposed for citations in situations involving entities covered under a state plan, and rule would increase employers’ employee misconduct in following an leaves both federal and state plan liabilities for citations when employees employer’s established work rules. enforcement policy unaffected. Thus, failed to adhere to work rules requiring PPE and Training for Short-Term the standard should not affect states’ the proper use of PPE, even when such Employees decisions on participation one way or employees were provided appropriate the other. Moreover, while PRIMA is PPE and properly trained in its use (Exs. In its submission to the record, the concerned with the potential that public 16, 20.1, 25.1, 42.1, 48.1, 80.1). Finishing Contractors Association raised employers would be subjected to large Representative of these is a submission a concern with respect to providing PPE penalties for citations made on a per- by the American Health Care and training of short-term employees, employee basis, CPL 2.80 provides that Association, which stated that: stating that: state-plan states need not extend the As union contractors who hire temporary egregious policy to public sector It is difficult to determine whether, when employees are not using PPE or are using it employees off the bench to supplement their programs (Ex. 70). Indeed, OSHA does incorrectly, that it is due to insufficient regular crew, should the contractors be not require state plans to impose training on the part of the employer or if it required to provide PPE and training for monetary sanctions on public employers is the fault of the employee(s) involved. these employees who may be with the if other adequate remedies are available. * * * [D]ocumentation that training has company a couple of weeks? Such a 29 CFR 1956.11(c)(2)(x). Finally, there is occurred, that PPE is supplied, and that requirement provides an economic burden, particularly on the smaller contractors. These no evidence that any states have been employees stated that they understood the training upon its completion should be temporary employees, perhaps, should use discouraged from seeking or their own safety equipment from their maintaining state-plan status. To the adequate evidence to OSHA that the employer is in compliance (Ex. 25.1). previous job, unless this is their first contrary, PRIMA conceded at the assignment. * * * It is also difficult for these hearing that it was not aware of any Similarly, the National Maritime contractors to honor their commitment to state-plan states that were reconsidering Safety Association (NMSA) stated that, provide updated training for these temporary their status as a result of this during OSHA investigations, it is workers on fast-paced, contracted jobs, since rulemaking, (Ex. 79 p. 99), and the possible that a ‘‘[c]ompliance officer can time is of the essence. (Ex. 48.1) Kentucky OSH Program submitted a casually observe employees in an This comment appears both to comment in support of the proposal (Ex. otherwise compliance workplace * * * question the nature of a short-term 21.1). improperly using or not using PPE at employer’s duty to comply with PPE all.’’ NMSA argued that, under the new and training standards and to suggest Multi-Employer Worksites standard, employers could be cited for that the final rule could impose Two comments were received each of these employees who ‘‘[s]imply additional costs on these employers. regarding application of per-instance (or were lax and for a brief period in time Insofar as the comment relates to the per-employee) citations to an employer failed to catch the attention of a cost of the rule, it is addressed in under the multi-employer citation supervisor who normally would have section VI below. The following policy. The Associated General corrected their lapse.’’ (Ex. 80.1) Finally, discussion addresses the commenter’s Contractors of America (AGC) noted that in their pre-hearing submission, ASSE question about the applicability of the this rule ‘‘could extend citations to the stated that ‘‘* * * [v]iolations often can amendments to short-term employers. general contractor’’ (Ex. 42.1). The reflect unintended mistakes in its use by OSHA’s PPE and training standards American Society of Safety Engineers employees, a supervisor’s mistaken require employers to ensure that their

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employees are provided appropriate that meet certain criteria. The most Explanation, would simply ‘‘make PPE and are adequately trained in its frequently used criterion under E.O. explicit the Agency’s policy and warn use. The final rule clarifies that 12866 is that the rule will impose employers of the potential cost and employers have this obligation for each annual costs to the economy of $100 penalties of violations.’’ Where there employee who is required to use PPE, million or more. Neither the benefits nor exists no change, there can be no costs. but does not otherwise fundamentally the costs of this rule exceed $100 Second, OSHA pointed out that ‘‘These alter the obligation to provide PPE and million. OSHA has also determined that changes again do not impose any ensure that employees are properly the final standard is not a major rule additional employer responsibility for trained. OSHA’s PPE and training under the Congressional Review providing respiratory protection, requirements apply to all employers provisions of the Small Business respiratory programs, or training for covered under the Act, including those Regulatory Enforcement Fairness Act. employees.’’ OSHA also pointed out with short-term employees, whether The Regulatory Flexibility Act of 1980 that the Agency examines the economic referred to as temporary employees, (RFA), as amended in 1996, requires feasibility of its standards assuming full piece workers, seasonal employees, OSHA to determine whether the compliance, and therefore the costs of hiring hall employees, labor pool Agency’s regulatory actions will have a compliance with existing PPE and employees, or transient employees. If an significant impact on a substantial training standards have already been employer-employee relationship is number of small entities. OSHA’s considered. Therefore, OSHA reasoned, established, then the employer must analysis, based on the analysis in this though the proposed rule ‘‘may change ensure that PPE is provided, used, and section of the Preamble as well as in the the frequency or number of violations maintained in a sanitary and reliable later section ‘‘OMB Review Under the and amount of fines assessed, these are condition, as required by 29 CFR Paperwork Reduction Act’’ below, not material for estimating new costs to 1910.132(a) (for general industry) and indicates that the final rule will not comply with a standard’’ (73 FR 48343). 29 CFR 1926.95(a) (for construction). have a significant impact on a After careful consideration of the However, as does commonly occur with substantial number of small entities. rulemaking comments, OSHA finds no short-term employees, both the general The final rule inserts two new basis to depart from these preliminary industry and construction standards paragraphs in the general industry conclusions. Many commenters objected permit employers to allow employees to health and safety standards (Part 1910), that the rule would have substantial use their own PPE provided that the the shipyard employment standards costs (see, e.g., Exs. 1.1, 7.1. 13.1, 26.1, PPE is appropriate for the hazards (Part 1915), the marine terminal 30.1, 40.1, 51.1, 66.1, and 81.1) or present at the worksite and is effectively standards (Part 1917), the longshoring expressed a special concern that the maintained (see 1910.132(b) and standards (Part 1918), and the proposed rule could have significant 1926.95(b)). Where employers hire construction standards (Part 1926). The costs for small entities, perhaps short-term employees, this final rule new provisions, indentical in each part, sufficient to require a regulatory does not affect the employer’s clarify OSHA’s position that personal flexibility analysis (see, e.g., Exs. 5, obligations to ensure that PPE is protective equipment and training 38.1, 41.1. 42.1, 43.1, and 74). Some of provided to each employee and that standards impose a separate compliance these commenters simply provided a each employee is trained in its use. duty with respect to each employee generic statement that the proposed rule covered by the PPE or training would have costs or economic impacts Implied Ownership of PPE requirement, and each failure to provide with no details as to why they thought One rulemaking participant, necessary PPE or training may be this would be the case, or why they Stericycle, believed that the proposed considered a separate violation. objected to OSHA’s arguments language clarifying that PPE is to be In addition, the Agency has also concerning costs and impacts (see, e.g., provided to each employee implied that editorially revised provisions for Exs. 7.1, 11.1, 13.1, 38.1, 40.1, 51.1, and employees would own the PPE (Ex. respiratory protection, respiratory 66.1). However some commenters also 35.1). They suggested language be added programs, and employee training across offered specific reasons for holding that to make clear that employers may many existing standards. These editorial the proposed regulation would have ‘‘maintain custody’’ of PPE to ensure its revisions emphasize the employer’s costs or significant impacts. availability. OSHA does not believe responsibility to provide protection to Some commenters expressed concerns such clarification is necessary in the each employee. For example, the that actually represent objections to the final rule since the Agency is simply existing language of Sec. 1910.134 (a) (2) costs of the underlying rules— clarifying its intent that PPE and ‘‘Respirators shall be provided by the specifically, that assuring all employees training requirements apply to each employer when such equipment is are trained represents a substantial cost employee covered by the requirements. necessary to protect the health of the and undue burden on firms in The final rule does not affect ownership employee’’ is replaced in the final rule industries with high turnover (Exs. 33, of PPE and employers are free to by: ‘‘A respirator shall be provided to 48.1, and 81.1). For example, as noted maintain ownership of PPE that they each employee when such equipment is above, one commenter argued ‘‘As provide and pay for. For a further necessary to protect the health of such union contractors who hire temporary discussion of the ownership issue, employee.’’ employees off the bench to supplement employers may consult the preamble to There have been no changes in the their regular crew, should the the PPE payment final rule (72 FR final rule from the proposed rule that contractors be required to provide PPE 64359). would have any new effect on costs. In and training for employees who may be the proposed rule, OSHA tentatively with their company for only a couple of V. Final Economic Analysis found that the proposed additions and weeks? Such a requirement provides an OSHA has determined that the final changes to the affected rules would have economic burden, particularly on the standard is not an economically no costs for two reasons. First, OSHA smaller contractors.’’ Such comments significant regulatory action under preliminarily concluded that the represent objections to the costs and Executive Order (E.O.) 12866. E.O. proposal would not represent any economic impacts of the underlying 12866 requires regulatory agencies to change in OSHA policy but instead, as rules, which have already been analyzed conduct an economic analysis for rules explained in detail in the Summary and and found technologically and

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economically feasible based on full considers this argument to be of dubious the regulations of the Council on compliance. This rule does not change merit. In most cases, the underlying PPE Environmental Quality (40 U.S.C. part any obligation of employers, or add and training standards require no 1500), and the Department of Labor’s compliance costs not already accounted recordkeeping. To the extent that NEPA procedures (29 CFR part 11). The for in the underlying rules. recordkeeping for training or PPE is Agency finds that the final rule will Some commenters were concerned normal and customary in these have no major negative impact on air, with costs of penalties, or the economic industries, OSHA sees no difference water or soil quality, plant or animal impact or significance of such penalties between the records appropriate for life, the use of land, or other aspects of (see, e.g., Exs. 5, 26, 41.1, 43.1, and showing that every employee has the environment. 48.1). None of these commenters received adequate PPE or training, and VIII. Federalism addressed OSHA’s point concerning records appropriate for showing that penalty costs mentioned in the each employee has received adequate OSHA has reviewed this final rule in proposed rule. First, the changes to PPE or training. The same exact records accordance with the Executive Order on these rules are a clarification and not a will suffice for either, if an employer Federalism (Executive Order 13132, 64 change to existing policies. Second, chooses to keep such records. FR 43255, August 10, 1999), which penalty costs are totally avoidable— Finally, one commenter (Ex. 43.1), requires that agencies, to the extent simply comply with the rule as OSHA expanding on the possibility of new possible, refrain from limiting state has assumed employers will in all of its costs, more generally argued that policy options, consult with states prior analyses, and there are no additional employers would incur costs because, in to taking any actions that would restrict costs for penalties. In addition, it should order to avoid higher penalties, they state policy options, and take such be noted that penalty costs, while costs would ‘‘overprotect’’ their employees, actions only when there is clear to employers, do not, by and large providing unnecessary PPE or training. constitutional authority and the represent true costs to the economy, but However, ‘‘overprotection’’ if it exists, presence of a problem of national scope. only represent transfer from firms that is, by definition, not a requirement of Executive Order 13132 provides for choose not to comply with OSHA any standard, and is therefore not preemption of state law only if there is regulations to the government. However, properly considered a cost of a clear congressional intent for the even ignoring these points, the actual compliance for the purposes of Agency to do so. Any such preemption penalty costs of noncompliance and the determining economic feasibility. is to be limited to the extent possible. number of firms directly affected are Furthermore, commenters have not Section 18 of the OSH Act (29 U.S.C. likely to be minimal. An average of provided any evidence that could be 651 et seq.) expresses Congress’ intent to seven firms a year have been subject to used as a basis for estimating such costs preempt state laws where OSHA has penalties based on a per-employee fine. or determining how many firms might promulgated occupational safety and Further, many of these firms have not ‘‘overprotect’’ their employees as a health standards. Under the OSH Act, a been small firms. Thus even if one result of this final rule. state can avoid preemption on issues disagrees with OSHA’s view that the Having considered the comments covered by federal standards only if it amendments are only a clarification, arguing that this regulation imposes submits, and obtains federal approval that compliance costs have already been new costs, or has significant economic of, a plan for the development of such accounted for, and that penalties need impacts on a substantial number of standards and their enforcement (State not be incurred, the costs are minimal firms, OSHA finally concludes that this Plan state). 29 U.S.C. 667. Occupational and the number of firms affected cannot set of changes to existing rules safety and health standards developed rise to the level of a substantial number represents no new requirements, by such State Plan states must, among of small firms that would be needed for imposes no new costs, and raises no other things, be at least as effective in a regulatory flexibility analysis to be new analytic issues not already providing safe and healthful required. considered in the development of the employment and places of employment Some commenters concerned with rules being modified. as the federal standards. Subject to these penalty costs also pointed out that requirements, State Plan states are free affected firms would have both higher VI. Regulatory Flexibility Certification to develop and enforce under state law penalties and higher legal costs, since In accordance with the Regulatory their own requirements for safety and firms would be more likely to incur Flexibility Act, 5 U.S.C. 601 et seq. (as health standards. legal costs to fight higher penalties (Exs. amended), OSHA examined the This final rule complies with 42.1 and 43.1). OSHA views this regulatory requirements of the final rule Executive Order 13132. As Congress has argument as irrelevant because there are to determine if they will have a expressed a clear intent for Federal no new costs for a rule that simply significant economic impact on a preemption on issues addressed by clarifies existing policy. Further, even if substantial number of small entities. As OSHA standards in states without this point is ignored, the legal costs of indicated in section V. (‘‘Final OSHA-approved State Plans, this rule fighting penalties are no more relevant Economic Analysis’’) of this preamble, preempts state law in the same manner than the penalties themselves for the final rule is expected to have no as any OSHA standard. States with purposes of feasibility analysis. They effect on compliance costs and OSHA-approved State Plans are free to are not compliance costs, are totally regulatory burden for any employer, develop policy options on issues avoidable, and do not rise to the level large or small. Accordingly, the Agency addressed herein, provided their of affecting a substantial number of certifies that the final rule will not have standards are at least as protective as firms. a significant economic impact on a this final rule. One commenter (Ex. 42.1) was substantial number of small entities. concerned that this regulation would IX. Unfunded Mandates cause some employers to incur VII. Environmental Impact Assessment For the purposes of the Unfunded significant new recordkeeping costs. OSHA has reviewed the final rule in Mandates Reform Act of 1995, 2 U.S.C. Since the rule imposes no new accordance with the requirements of the 1501, et seq., as well as E.O. 12875, this obligations and simply clarifies existing National Environmental Policy Act final rule does not include any Federal policy in a regulatory framework, OSHA (NEPA) of 1969 (42 U.S.C. 4321 et seq.), mandate that may result in increased

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expenditures by State, local, and tribal be at least as effective as the final Signed at Washington, DC, this 4th day of governments, or increased expenditures federal rule, must be applicable to both December, 2008. by the private sector of more than $100 the private and public (state and local Thomas M. Stohler, million. government employees) sectors, and Acting Assistant Secretary of Labor for Occupational Safety and Health. X. OMB Review Under the Paperwork must be completed within six months of Reduction Act of 1995 the publication date of the final federal List of Subjects rule. When OSHA promulgates a new This final rule does not contain any 29 CFR Part 1910 standard or a standards amendment new collection of information Chemicals, Gases, Hazardous requirements that are subject to review which does not impose additional or more stringent requirements than an substances, Occupational safety and by OMB under the Paperwork health, Protective equipment. Reduction Act of 1995, 44 U.S.C. 3501 existing standard, states are not required et seq. and OMB regulations at 5 CFR to revise their standards, although 29 CFR Part 1915 part 1320. OSHA may encourage them to do so. Chemicals, Gases, Hazardous Several commenters suggested that The 26 states and territories with substances, Longshore and harbor the rule could increase paperwork OSHA-approved State Plans are: Alaska, workers, Occupational safety and burdens on employers (See, e.g., Exs. Arizona, California, Connecticut (plan health, Protective equipment. 40.1, 42.1, 80.1, 81.1). The Associated covers only State and local government General Contractors of America (AGC) employees), Hawaii, Indiana, Iowa, 29 CFR Part 1917 remarked that ‘‘This proposal has Kentucky, Maryland, Michigan, Chemicals, Gases, Hazardous substantial economic impact on small Minnesota, Nevada, New Mexico, New substances, Longshore and harbor business owners within the construction Jersey (plan covers only State and local workers, Occupational safety and industry. Requiring a contractor to government employees), New York health, Protective equipment. prove that he or she provided (plan covers only State and local 29 CFR Part 1918 appropriate PPE and training for each government employees), North Carolina, employee would result in a considerable Oregon, Puerto Rico, South Carolina, Chemicals, Gases, Hazardous amount of recordkeeping, which would substances, Longshore and harbor Tennessee, Utah, Vermont, Virginia, overly burden small employers’’ (Ex. workers, Occupational safety and Virgin Islands (plan covers only State 42.1). Associated Builders and health, Protective equipment. Contractors, Inc. (ABC) recommended and local government employees), 29 CFR Part 1926 that OSHA ‘‘[i]nclude specific guidance Washington, and Wyoming. on what evidence OSHA will require (or With regard to this final rule, while it Chemicals, Construction industry, otherwise expect) employers to provide does not impose any additional or more Gases, Hazardous substances, in order to document that the requisite stringent requirements, it adds language Occupational safety and health, training has in fact been provided’’ (Ex. clarifying that the personal protective Protective equipment. 40.1). equipment and training requirements of The Final Standard As OSHA has stated numerous times OSHA’s standards impose a compliance ■ throughout this preamble, these duty with respect to each employee Parts 1910, 1915, 1917, 1918 and 1926 standards do not make any changes to covered by the requirements. State Plan of Title 29 of the Code of Federal the substantive requirements of the states must ensure that their PPE and Regulations are hereby amended as follows: standards and thus do not impose any training standards are at least as new duties on employers, including the effective as the federal standards as duty to keep training and PPE records. PART 1910—[AMENDED] amended by this final rule. States must The recordkeeping requirements of adopt revisions, if necessary, within six Subpart A—[Amended] individual PPE and training requirements located in many of months of the publication of this rule. ■ 1. The authority citation for subpart A OSHA’s standards vary on this matter: XII. Authority and Signature of 29 CFR part 1910 is revised to read Some require training records, some as follows: require training certifications, and some This document was prepared under Authority: Sections 4, 6, and 8 of the do not require records at all. These the direction of Thomas M. Stohler, Occupational Safety and Health Act of 1970 requirements continue unchanged and Acting Assistant Secretary of Labor for (29 U.S.C. 653, 655, and 657); Secretary of OSHA therefore reiterates its finding Occupational Safety and Health, U.S. Labor’s Order No. 12–71 (36 FR 8754), 8–76 that the rulemaking imposes no new Department of Labor, 200 Constitution (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 paperwork burdens. Avenue, NW., Washington, DC 20210. It FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), and 5–2007 XI. State Plan States is issued under sections 4, 6, and 8 of (72 FR 31159), as applicable. the Occupational Safety and Health Act Sections 1910.7, 1910.8, and 1910.9 also When federal OSHA promulgates a of 1970 (29 U.S.C. 653, 655, 657), issued under 29 CFR Part 1911. Section new standard or more stringent section 941 of the Longshore and Harbor 1910.7(f) also issued under 31 U.S.C. 9701, amendment to an existing standard, the Workers’ Compensation Act (33 U.S.C. 29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106–113 26 states or U.S. territories with their 901 et seq.), section 3704 of the Contract (113 Stat. 1501A–222); and OMB Circular A– own OSHA-approved occupational 25 (dated July 8, 1993) (58 FR 38142, July 15, Work Hours and Safety Standards Act safety and health plans must revise their 1993). standards to reflect the new standard or (40 U.S.C. 3701 et seq.), Secretary of Labor’s Order No. 5–2007, and 29 CFR ■ 2. A new section 1910.9 is added, to amendment, or show OSHA why there read as follows: is no need for action, e.g., because an part 1911. existing state standard covering this area § 1910.9 Compliance duties owed to each is already ‘‘at least as effective’’ as the employee. new federal standard or amendment. 29 (a) Personal protective equipment. CFR 1953.5(a). The state standard must Standards in this part requiring the

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employer to provide personal protective FR 31160), as applicable, and 29 CFR Part except those substances that have exposure equipment (PPE), including respirators 1911. limits listed in Tables Z–1, Z–2, and Z–3 of and other types of PPE, because of 29 CFR 1910.1000. The latter were issued hazards to employees impose a separate ■ 6. In section 1910.134, paragraph under section 6(a) (29 U.S.C. 655(a)). (a)(2) is revised to read as follows: Section 1910.1000, Tables Z–1, Z–2, and compliance duty with respect to each Z–3 also issued under 5 U.S.C. 553, Section employee covered by the requirement. § 1910.134 Respiratory protection. 1910.1000 Tables Z–1, Z–2, and Z–3 but not The employer must provide PPE to each * * * * * under 29 CFR part 1911 except for the employee required to use the PPE, and (a) * * * arsenic (organic compounds), benzene, each failure to provide PPE to an (2) A respirator shall be provided to cotton dust, and chromium (VI) listings. employee may be considered a separate Section 1910.1001 also issued under each employee when such equipment is section 107 of the Contract Work Hours and violation. necessary to protect the health of such (b) Training. Standards in this part Safety Standards Act (40 U.S.C. 3704) and 5 employee. The employer shall provide requiring training on hazards and U.S.C. 553. the respirators which are applicable and related matters, such as standards Section 1910.1002 also issued under 5 suitable for the purpose intended. The U.S.C. 553 but not under 29 U.S.C. 655 or 29 requiring that employees receive employer shall be responsible for the CFR part 1911. training or that the employer train establishment and maintenance of a Sections 1910.1018, 1910.1029 and employees, provide training to respiratory protection program, which 1910.1200 also issued under 29 U.S.C. 653. employees, or institute or implement a shall include the requirements outlined Section 1910.1030 also issued under Pub. training program, impose a separate L. 106–430, 114 Stat. 1901. in paragraph (c) of this section. The compliance duty with respect to each program shall cover each employee ■ 10. In section 1910.1001, paragraphs employee covered by the requirement. required by this section to use a (g)(1) introductory text, (g)(2)(i), and The employer must train each affected respirator. (j)(7)(i) are revised to read as follows: employee in the manner required by the standard, and each failure to train an * * * * * § 1910.1001 Asbestos. employee may be considered a separate Subpart L—[Amended] * * * * * violation. (g) * * * ■ 7. The authority citation for subpart L (1) General. For employees who use Subpart G—[Amended] of 29 CFR part 1910 is revised to read respirators required by this section, the ■ 3. The authority citation for subpart G as follows: employer must provide each employee of 29 CFR part 1910 is revised to read Authority: Sections 4, 6, and 8 of the an appropriate respirator that complies as follows: Occupational Safety and Health Act of 1970 with the requirements of this paragraph. (29 U.S.C. 653, 655, and 657); Secretary of Respirators must be used during: Authority: Secs. 4, 6, and 8 of the Labor’s Order No. 12–71 (36 FR 8754), 8–76 Occupational Safety and Health Act of 1970 * * * * * (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 (2) * * * (29 U.S.C. 653, 655, 657); Secretary of Labor’s FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR Order No. 12–71 (36 FR 8754), 8–76 (41 FR (i) The employer must implement a 50017), 5–2002 (67 FR 65008), or 5–2007 (72 respiratory protection program in 25059), 9–83 (48 FR 35736), 1–90 (55 FR FR 31160), as applicable, and 29 CFR Part 9033), 6–96 (62 FR 111), 3–2000 (65 FR 1911. accordance with 29 CFR 134 (b) through 50017), 5–2002 (67 FR 50017), or 5–2007 (72 (d) (except (d)(1)(iii)), and (f) through FR 31159) as applicable; and 29 CFR part ■ (m), which covers each employee 1911. 8. In section 1910.156, paragraph (f)(1)(i) is revised to read as follows: required by this section to use a respirator. ■ 4. In section 1910.95, paragraph (k)(1) § 1910.156 Fire brigades. * * * * * is revised to read as follows: * * * * * (j) * * * § 1910.95 Occupational noise exposure. (f)* * * (7) * * * (1)* * * (i) The employer shall train each * * * * * (i) The employer must ensure that employee who is exposed to airborne (k) * * * respirators are provided to, and used by, (1) The employer shall train each concentrations of asbestos at or above each fire brigade member, and that the employee who is exposed to noise at or the PEL and/or excursion limit in respirators meet the requirements of 29 above an 8-hour time weighted average accordance with the requirements of CFR 1910.134 for each employee of 85 decibels in accordance with the this section. The employer shall required by this section to use a requirements of this section. The institute a training program and ensure respirator. employer shall institute a training employee participation in the program. program and ensure employee * * * * * * * * * * participation in the program. ■ 11. In section 1910.1003, paragraphs Subpart Z—[Amended] * * * * * (c)(4)(iv) and (d)(1) are revised to read ■ 9. The authority citation for subpart Z as follows: Subpart I—[Amended] of 29 CFR part 1910 is revised to read § 1910.1003 13 Carcinogens (4- as follows: ■ 5. The authority citation for subpart I Nitrobiphenyl, etc.). of 29 CFR part 1910 is revised to read Authority: Sections 4, 6, and 8 of the * * * * * Occupational Safety and Health Act of 1970 as follows: (c) * * * (29 U.S.C. 653, 655, and 657); Secretary of (4) * * * Authority: Sections 4, 6, and 8 of the Labor’s Order No. 12–71 (36 FR 8754), 8–76 (iv) Each employee engaged in Occupational Safety and Health Act of 1970 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 (29 U.S.C. 653, 655, and 657); Secretary of FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR handling operations involving the Labor’s Order No. 12–71 (36 FR 8754), 8–76 50017), 5–2002 (67 FR 65008), or 5–2007 (72 carcinogens addressed by this section (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 31160), as applicable. must be provided with, and required to FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR All of subpart Z issued under section 6(b) wear and use, a half-face filter type 50017), 5–2002 (67 FR 65008), or 5–2007 (72 of the Occupational Safety and Health Act, respirator for dusts, mists, and fumes. A

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respirator affording higher levels of institute a training program and ensure (g) * * * protection than this respirator may be employee participation in the program. (1) General. For employees who use substituted. * * * * * respirators required by this section, the * * * * * ■ 14. In section 1910.1025, paragraphs employer must provide each employee (d) * * * (f)(1) introductory text, (f)(2)(i), and an appropriate respirator that complies (1) Respiratory program. The (l)(1)(ii) are revised to read as follows: with the requirements of this paragraph. employer must implement a respiratory Respirators must be used during: protection program in accordance with § 1910.1025 Lead. * * * * * § 1910.134 (b), (c), (d) (except (d)(1)(iii) * * * * * (2) * * * and (iv), and (d)(3)), and (e) through (m), (f) * * * (i) The employer must implement a which covers each employee required (1) General. For employees who use respiratory protection program in by this section to use a respirator. respirators required by this section, the accordance with § 1910.134(b) through * * * * * employer must provide each employee (d) (except (d)(1)(iii)), and (f) through ■ 12. In section 1910.1017, paragraphs an appropriate respirator that complies (m), which covers each employee (g)(1) and (g)(2) are revised to read as with the requirements of this paragraph. required by this section to use a follows: Respirators must be used during: respirator. * * * * * * * * * * § 1910.1017 Vinyl chloride. (2) * * * (m) * * * * * * * * (i) The employer must implement a (4) * * * (g) Respiratory protection. (1) General. respiratory protection program in (i) The employer shall train each For employees who use respirators accordance with § 1910.134(b) through employee who is potentially exposed to required by this section, the employer (d) (except (d)(1)(iii)), and (f) through cadmium in accordance with the must provide each employee an (m), which covers each employee requirements of this section. The appropriate respirator that complies required by this section to use a employer shall institute a training with the requirements of this paragraph. respirator. program, ensure employee participation (2) Respirator program. The employer * * * * * in the program, and maintain a record must implement a respiratory protection (l) * * * of the contents of such program. program in accordance § 1910.134 (b) (1) * * * * * * * * through (d) (except (d)(1)(iii), and (ii) The employer shall train each ■ (d)(3)(iii)(B)(1) and (2)), and (f) through 17. In section 1910.1028, paragraph employee who is subject to exposure to (m) which covers each employee (g)(1) introductory text and (g)(2)(i) are lead at or above the action level, or for required by this section to use a revised to read as follows: whom the possibility of skin or eye respirator. irritation exists, in accordance with the § 1910.1028 Benzene. * * * * * requirements of this section. The * * * * * ■ 13. In section 1910.1018, paragraphs employer shall institute a training (g) * * * (h)(1) introductory text, and (h)(2)(i), program and ensure employee (1) General. For employees who use and (o)(1)(i) are revised to read as participation in the program. respirators required by this section, the follows: * * * * * employer must provide each employee § 1910.1018 Inorganic arsenic. ■ 15. In section 1910.1026, paragraphs an appropriate respirator that complies (g)(1) introductory text and (g)(2) are with the requirements of this paragraph. * * * * * Respirators must be used during: (h) * * * revised to read as follows: (1) General. For employees who use * * * * * § 1910.1026 Chromium (VI). respirators required by this section, the (2) * * * employer must provide each employee * * * * * (i) The employer must implement a an appropriate respirator that complies (g) * * * respiratory protection program in with the requirements of this paragraph. (1) General. Where respiratory accordance with § 1910.134(b) through Respirators must be used during: protection is required by this section, (d) (except (d)(1)(iii), (d)(3)(iii)(b)(1) and the employer must provide each (2)), and (f) through (m), which covers * * * * * (2) * * * employee an appropriate respirator that each employee required by this section (i) The employer must implement a complies with the requirements of this to use a respirator. respiratory protection program in paragraph. Respiratory protection is * * * * * accordance with § 1910.134(b) through required during: ■ 18. In section 1910.1029, paragraphs (d) (except (d)(1)(iii)), and (f) through * * * * * (g)(1) introductory text, (g)(2) and (m), which covers each employee (2) Respiratory protection program. (k)(1)(i) are revised to read as follows: required by this section to use a Where respirator use is required by this respirator. section, the employer shall institute a § 1910.1029 Coke oven emissions. * * * * * respiratory protection program in * * * * * (o) * * * accordance with § 1910.134, which (g) * * * (l) * * * covers each employee required to use a (1) General. For employees who use (i) The employer shall train each respirator. respirators required by this section, the employee who is subject to exposure to * * * * * employer must provide each employee inorganic arsenic above the action level ■ 16. In section 1910.1027, paragraphs an appropriate respirator that complies without regard to respirator use, or for (g)(1) introductory text, (g)(2)(i), and with the requirements of this paragraph. whom there is the possibility of skin or (m)(4)(i) are revised to read as follows: Respirators must be used during: eye irritation from inorganic arsenic, in * * * * * accordance with the requirements of § 1910.1027 Cadmium. (2) Respirator program. The employer this section. The employer shall * * * * * must implement a respiratory protection

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program in accordance with ■ 21. In section 1910.1044, paragraphs program and ensure employee § 1910.134(b) through (d) (except (h)(1) introductory text, (h)(2), and participation in the program. (d)(1)(iii)), and (f) through (m), which (n)(1)(i) are revised to read as follows: * * * * * covers each employee required by this ■ 23. In section 1910.1047, paragraph section to use a respirator. § 1910.1044 1,2-dibromo-3-chloropropane. * * * * * (g)(1) introductory text and (g)(2) are * * * * * revised to read as follows: (k) * * * (h) * * * (1) General. For employees who are (1) * * * § 1910.1047 Ethylene oxide. required to use respirators by this (i) The employer shall train each * * * * * section, the employer must provide each employee who is employed in a (g) * * * employee an appropriate respirator that regulated area in accordance with the (1) General. For employees who use complies with the requirements of this requirements of this section. The respirators required by this section, the paragraph. Respirators must be used employer shall institute a training employer must provide each employee during: program and ensure employee an appropriate respirator that complies participation in the program. * * * * * with the requirements of this paragraph. (2) Respirator Program. The employer * * * * * Respirators must be used during: must implement a respiratory protection * * * * * ■ 19. In section 1910.1030, paragraph program in accordance with (2) Respirator program. The employer (g)(2)(i) is revised to read as follows: § 1910.134(b) through (d) (except must implement a respiratory protection § 1910.1030 Bloodborne pathogens. (d)(1)(iii)), and (f) through (m), which program in accordance with covers each employee required by this § 1910.134(b) through (d) (except * * * * * section to use a respirator. (g) * * * (d)(i)(iii)), and (f) through (m), which * * * * * (2) * * * covers each employee required by this (n) * * * section to use a respirator. (i) The employer shall train each (1) * * * employee with occupational exposure * * * * * (i) The employer shall train each in accordance with the requirements of ■ 24. In section 1910.1048, paragraphs employee who may be exposed to DBCP this section. Such training must be (g)(1) introductory text and (g)(2)(i) are in accordance with the requirements of provided at no cost to the employee and revised to read as follows: this section. The employer shall during working hours. The employer institute a training program and ensure § 1910.1048 Formaldehyde. shall institute a training program and employee participation in the program. ensure employee participation in the * * * * * program. * * * * * (g) * * * ■ (1) General. For employees who use * * * * * 22. In section 1910.1045, paragraphs respirators required by this section, the ■ (h)(1) introductory text, (h)(2)(i), and 20. In section 1910.1043, paragraphs (o)(1)(i) are revised to read as follows: employer must provide each employee (f)(1) introductory text, (f)(2)(i), and an appropriate respirator that complies (i)(1)(i) are revised to read as follows: § 1910.1045 Acrylonitrile. with the requirements of this paragraph. § 1910.1043 Cotton dust. * * * * * Respirators must be used during: (h) * * * * * * * * * * * * * (1) General. For employees who use (f) * * * (2) * * * respirators required by this section, the (i) The employer must implement a (1) General. For employees who are employer must provide each employee respiratory protection program in required to use respirators by this an appropriate respirator that complies accordance with § 1910.134(b) through section, the employer must provide each with the requirements of this paragraph. (d) (except (d)(1)(iii), (d)(3)(iii)(b)(1), employee an appropriate respirator that Respirators must be used during: and (2)), and (f) through (m), which complies with the requirements of this covers each employee required by this paragraph. Respirators must be used * * * * * section to use a respirator. during: (2) * * * (i) The employer must implement a * * * * * * * * * * respiratory protection program in ■ 25. In section 1910.1050, paragraphs (2) * * * accordance with § 1910.134(b) through (i) The employer must implement a (h)(1) introductory text and (h)(2) are (d) (except (d)(1)(iii), (d)(3)(iii)(b)(1), revised to read as follows: respiratory protection program in and (2)), and (f) through (m), which accordance with § 1910.134(b) through covers each employee required by this § 1910.1050 Methylenedianiline. (d) (except (d)(1)(iii)), and (f) through section to use a respirator. * * * * * (m), which covers each employee * * * * * (h) * * * required by this section to use a (o) * * * (1) General. For employees who use respirator. (1) * * * respirators required by this section, the * * * * * (i) The employer shall train each employer must provide each employee (i) * * * employee exposed to AN above the an appropriate respirator that complies (1) * * * action level, each employee whose with the requirements of this paragraph. (i) The employer shall train each exposures are maintained below the Respirators must be used during: employee exposed to cotton dust in action level by engineering and work * * * * * accordance with the requirements of practice controls, and each employee (2) Respirator program. The employer this section. The employer shall subject to potential skin or eye contact must implement a respiratory protection institute a training program and ensure with liquid AN in accordance with the program in accordance with § 1910.134 employee participation in the program. requirements of this section. The (b) through (d) (except (d)(1)(iii)), and (f) * * * * * employer shall institute a training through (m), which covers each

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employee required by this section to use U.S.C. 941); Sections. 4, 6, and 8 of the (k) * * * a respirator. Occupational Safety and Health Act of 1970 (9) * * * (29 U.S.C. 653, 655, 657); Secretary of Labor’s * * * * * (i) The employer shall train each Order No. 12–71 (36 FR 8754), 8–76 (41 FR employee who is likely to be exposed in ■ 26. In section 1910.1051, paragraphs 25059), 9–83 (48 FR 35736), 1–90 (55 FR excess of a PEL and each employee who (h)(1) introductory text, (h)(2)(i), and 9033), 6–96 (62 FR 111), 3–2000 (65 FR performs Class I through IV asbestos (l)(2)(ii) are revised to read as follows: 50017), 5–2002 (67 FR 65008), or 5–2007 (72 FR 31160) as applicable; 29 CFR Part 1911. operations in accordance with the § 1910.1051 Butadiene. requirements of this section. Training * * * * * Subpart A—[Amended] shall be provided at no cost to the (h) * * * employee. The employer shall institute ■ 29. A new section 1915.9 is added, to (1) General. For employees who use a training program and ensure employee read as follows: respirators required by this section, the participation in the program. employer must provide each employee § 1915.9 Compliance duties owed to each * * * * * an appropriate respirator that complies employee. ■ 31. In section 1915.1026, paragraphs with the requirements of this paragraph. (a) Personal protective equipment. (f)(1) introductory text and (f)(2) are Respirators must be used during: Standards in this part requiring the revised to read as follows: * * * * * employer to provide personal protective (2) * * * equipment (PPE), including respirators § 1915.1026 Chromium (IV). (i) The employer must implement a and other types of PPE, because of * * * * * respiratory protection program in hazards to employees impose a separate (f) * * * accordance with § 1910.134(b) through compliance duty with respect to each (1) General. Where respiratory (d) (except (d)(1)(iii), (d)(3)(iii)(B)(1), employee covered by the requirement. protection is required by this section, and (2)), and (f) through (m), which The employer must provide PPE to each the employer must provide each covers each employee required by this employee required to use the PPE, and employee an appropriate respirator that section to use a respirator. each failure to provide PPE to an complies with the requirements of this paragraph. Respiratory protection is * * * * * employee may be considered a separate (l) * * * violation. required during: (2) * * * (b) Training. Standards in this part * * * * * (i) * * * requiring training on hazards and (2) Respiratory Protection Program. (ii) The employer shall train each related matters, such as standards Where respirator use is required by this employee who is potentially exposed to requiring that employees receive section, the employer shall institute a BD at or above the action level or the training or that the employer train respiratory protection program in STEL in accordance with the employees, provide training to accordance with § 1910.134, which requirements of this section. The employees, or institute or implement a covers each employee required to use a employer shall institute a training training program, impose a separate respirator. program, ensure employee participation compliance duty with respect to each * * * * * in the program, and maintain a record employee covered by the requirement. of the contents of such program. The employer must train each affected PART 1917—[AMENDED] employee in the manner required by the * * * * * ■ 32. The authority citation for part ■ standard, and each failure to train an 27. In section 1910.1052, paragraphs employee may be considered a separate 1917 is revised to read as follows: (g)(1) introductory text and (g)(2)(i) are violation. Authority: Section 41, Longshore and revised to read as follows: Harbor Workers’ Compensation Act (33 § 1910.1052 Methylene chloride. Subpart Z—[Amended] U.S.C. 941); Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 * * * * * ■ 30. In section 1915.1001, paragraphs (29 U.S.C. 653, 655, 657); Secretary of Labor’s (g) * * * (h)(1) introductory text, (h)(3)(i), and Order No. 12–71 (36 FR 8754), 8–76 (41 FR (1) General. For employees who use (k)(9)(i), are revised to read as follows: 25059), 9–83 (48 FR 35736), 1–90 (55 FR respirators required by this section, the 9033), 6–96 (62 FR 111), 3–2000 (65 FR employer must provide each employee § 1915.1001 Asbestos. 50017), 5–2002 (67 FR 65008), or 5–2007 (72 an appropriate respirator that complies * * * * * FR 31160) as applicable; 29 CFR Part 1911. with the requirements of this paragraph. (h) * * * Respirators must be used during: (1) General. For employees who use Subpart A—[Amended] * * * * * respirators required by this section, the ■ employer must provide each employee 33. A new section 1917.5 is added, to (2) * * * read as follows: (i) The employer must implement a an appropriate respirator that complies respiratory protection program in with the requirements of this paragraph. § 1917.5 Compliance duties owed to each accordance with § 1910.13(b) through Respirators must be used in the employee. (m) (except (d)(1)(iii)), which covers following circumstances: (a) Personal protective equipment. each employee required by this section * * * * * Standards in this part requiring the to use a respirator. (3) * * * employer to provide personal protective * * * * * (i) Where respirator use is required by equipment (PPE), including respirators this section, the employer shall institute and other types of PPE, because of PART 1915—[AMENDED] a respiratory protection program in hazards to employees impose a separate accordance with § 1910.134(b), (d), (e), compliance duty with respect to each ■ 28. The authority citation for part and (f), which covers each employee employee covered by the requirement. 1915 is revised to read as follows: required by this section to use a The employer must provide PPE to each Authority: Section 41, Longshore and respirator. employee required to use the PPE, and Harbor Workers’ Compensation Act (33 * * * * * each failure to provide PPE to an

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employee may be considered a separate PART 1926—[AMENDED] Section 1926.62 of 29 CFR also issued violation. under section 1031 of the Housing and Subpart C—[Amended] Community Development Act of 1992 (42 (b) Training. Standards in this part U.S.C. 4853). requiring training on hazards and ■ 36. The authority citation for subpart Section 1926.65 of 29 CFR also issued related matters, such as standards C of 29 CFR part 1926 is revised to read under section 126 of the Superfund requiring that employees receive as follows: Amendments and Reauthorization Act of training or that the employer train 1986, as amended (29 U.S.C. 655 note), and employees, provide training to Authority: Sec. 3704, Contract Work Hours 5 U.S.C. 553. and Safety Standards Act (40 U.S.C. 333); ■ employees, or institute or implement a secs. 4, 6, and 8, Occupational Safety and 39. In section 1926.60, paragraph (i)(1) training program, impose a separate Health Act of 1970 (29 U.S.C. 653, 655, 657); introductory text, and (i)(2) are revised compliance duty with respect to each Secretary of Labor’s Order No. 12–71 (36 FR to read as follows: employee covered by the requirement. 8754), 8–76 (41 FR 25059), 9–83 (48 FR The employer must train each affected 35736), 6–96 (62 FR 111), or 5–2007 (72 FR § 1926.60 Methylenedianiline. employee in the manner required by the 31160) as applicable; and 29 CFR part 1911. * * * * * standard, and each failure to train an ■ 37. In section 1926.20, a new (i) * * * employee may be considered a separate paragraph (f) is added to read as follows: (1) General. For employees who use violation. respirators required by this section, the § 1926.20 General safety and health employer must provide each employee PART 1918—[AMENDED] provisions. an appropriate respirator that complies * * * * * with the requirements of this paragraph. ■ 34. The authority citation for part (f) Compliance duties owed to each Respirators must be used during: 1918 is revised to read as follows: employee. (1) Personal protective * * * * * Authority: Section 41, Longshore and equipment. Standards in this part (2) Respirator program. The employer Harbor Workers’ Compensation Act (33 requiring the employer to provide must implement a respiratory protection U.S.C. 941); Sections 4, 6, and 8 of the personal protective equipment (PPE), program in accordance with § 1910.134 Occupational Safety and Health Act of 1970 including respirators and other types of (b) through (d) (except (d)(1)(iii)), and (f) (29 U.S.C. 653, 655, 657); Secretary of Labor’s PPE, because of hazards to employees through (m), which covers each Order No. 12–71 (36 FR 8754), 8–76 (41 FR impose a separate compliance duty with employee required by this section to use 25059), 9–83 (48 FR 35736), 1–90 (55 FR respect to each employee covered by the a respirator. 9033), 6–96 (62 FR 111), 3–2000 (65 FR requirement. The employer must * * * * * 50017), 5–2002 (67 FR 65008), or 5–2007 (72 provide PPE to each employee required FR 31160) as applicable; 29 CFR Part 1911. to use the PPE, and each failure to ■ 40. In section 1926.62, paragraphs (f)(1) introductory text, (f)(2)(i), and Subpart A—[Amended] provide PPE to an employee may be considered a separate violation. (l)(1)(ii) are revised to read as follows: (2) Training. Standards in this part ■ § 1926.62 Lead. 35. A new section 1918.5 is added, to requiring training on hazards and read as follows: related matters, such as standards * * * * * § 1918.5 Compliance duties owed to each requiring that employees receive (f) * * * employee. training or that the employer train (1) General. For employees who use employees, provide training to respirators required by this section, the (a) Personal protective equipment. employees, or institute or implement a employer must provide each employee Standards in this part requiring the training program, impose a separate an appropriate respirator that complies employer to provide personal protective compliance duty with respect to each with the requirements of this paragraph. equipment (PPE), including respirators employee covered by the requirement. Respirators must be used during: and other types of PPE, because of The employer must train each affected * * * * * hazards to employees impose a separate employee in the manner required by the (2) * * * compliance duty with respect to each standard, and each failure to train an employee covered by the requirement. (i) The employer must implement a employee may be considered a separate respiratory protection program in The employer must provide PPE to each violation. employee required to use the PPE, and accordance with § 1910.134(b) through each failure to provide PPE to an Subpart D—[Amended] (d) (except (d)(1)(iii)), and (f) through employee may be considered a separate (m), which covers each employee violation. ■ 38. The authority citation for subpart required by this section to use a respirator. (b) Training. Standards in this part D of 29 CFR part 1926 is revised to read requiring training on hazards and as follows: * * * * * related matters, such as standards Authority: Section 3704 of the Contract (l) * * * requiring that employees receive Work Hours and Safety Standards Act (40 (ii) The employer shall train each training or that the employer train U.S.C. 3701 et seq.); Sections 4, 6, and 8 of employee who is subject to exposure to employees, provide training to the Occupational Safety and Health Act of lead at or above the action level on any 1970 (29 U.S.C. 653, 655, and 657); Secretary employees, or institute or implement a day, or who is subject to exposure to of Labor’s Orders 12–71 (36 FR 8754), 8–76 lead compounds which may cause skin training program, impose a separate (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 compliance duty with respect to each FR 9033), 6–96 (62 FR 111), 3–2000 (62 FR or eye irritation (e.g., lead arsenate, lead employee covered by the requirement. 50017), 5–2002 (67 FR 65008); or 5–2007 (72 azide), in accordance with the The employer must train each affected FR 31160) as applicable; and 29 CFR part requirements of this section. The employee in the manner required by the 1911. employer shall institute a training standard, and each failure to train an Sections 1926.58, 1926.59, 1926.60, and program and ensure employee employee may be considered a separate 1926.65 also issued under 5 U.S.C. 553 and participation in the program. violation. 29 CFR part 1911. * * * * *

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Subpart R—[Amended] (9) * * * in the program, and maintain a record (i) The employer shall train each of the contents of the training program. ■ 41. The authority citation for subpart employee who is likely to be exposed in * * * * * R of 29 CFR part 1926 is revised to read excess of a PEL, and each employee who [FR Doc. E8–29122 Filed 12–9–08; 4:15 pm] as follows: performs Class I through IV asbestos BILLING CODE 4510–26–P Authority: Sec. 3704, Contract Work Hours operations, in accordance with the and Safety Standards Act (Construction requirements of this section. Such Safety Act) (40 U.S.C. 333); Sec. 4, 6, and 8, training shall be conducted at no cost to DEPARTMENT OF THE TREASURY Occupational Safety and Health Act of 1970 the employee. The employer shall (29 U.S.C. 653, 655, 657); Secretary of Labor’s institute a training program and ensure Fiscal Service Order No. 3–2000 (65 FR 50017), No. 5–2002 employee participation in the program. (67 FR 65008), or No. 5–2007 (72 FR 31160) as applicable; and 29 CFR part 1911. * * * * * 31 CFR Part 380 ■ 45. In section 1926.1126, paragraphs ■ 42. In section 1926.761, paragraph (b) [Docket No. BPD GSRS 08–02] (f)(1) introductory text and (f)(2) are is revised to read as follows: revised to read as follows: Collateral Acceptability and Valuation § 1926.761 Training. § 1926.1126 Chromium (IV). AGENCY: Bureau of the Public Debt, * * * * * * * * * * Fiscal Service, Department of the (b) Fall hazard training. The employer (f) * * * Treasury. shall train each employee exposed to a (1) General. Where respiratory ACTION: Final rule. fall hazard in accordance with the protection is required by this section, requirements of this section. The SUMMARY: The Department of the the employer must provide each employer shall institute a training Treasury is amending regulations that employee an appropriate respirator that program and ensure employee govern the acceptability and valuation complies with the requirements of this participation in the program. of collateral pledged to secure deposits paragraph. Respiratory protection is * * * * * of public monies and other financial required during: interests of the government under Subpart Z—[Amended] * * * * * Treasury’s three Fiscal Service collateral (2) Respiratory protection program. programs. This final rule is a ■ 43. The authority citation for subpart Where respirator use is required by this nonsubstantive, technical amendment Z of 29 CFR part 1926 is revised to read section, the employer shall institute a that updates a Web site and a postal as follows: respiratory protection program in mailing address referenced in those Authority: Section 3704 of the Contract accordance with § 1910.134, which regulations. covers each employee required to use a Work Hours and Safety Standards Act (40 DATES: Effective date: December 12, respirator. U.S.C. 3701 et seq.); Sections 4, 6, and 8 of 2008. the Occupational Safety and Health Act of * * * * * ADDRESSES: You may download this 1970 (29 U.S.C. 653, 655, 657); Secretary of ■ Labor’s Orders 12–71 (36 FR 8754), 8–76 (41 46. In section 1926.1127, paragraphs final rule from the Bureau of the Public FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR (g)(1) introductory text, (g)(2)(i), and Debt’s Web site at 9033), 6–96 (62 FR 111), 3–2000 (62 FR (m)(4)(i) are revised to read as follows: www.treasurydirect.gov or from the 50017), 5–2002 (67 FR 65008), or 5–2007 (71 § 1926.1127 Cadmium. Electronic Code of Federal Regulations FR 31160), as applicable; and 29 CFR part 11. * * * * * (e–CFR) Web site at www.gpoaccess.gov/ Section 1926.1102 of 29 CFR not issued (g) * * * ecfr. It is also available for public under 29 U.S.C. 655 or 29 CFR part 1911; inspection and copying at the Treasury also issued under 5 U.S.C. 553. (1) General. For employees who use respirators required by this section, the Department Library, Room 1428, Main ■ 44. In section 1926.1101, paragraphs employer must provide each employee Treasury Building, 1500 Pennsylvania (h)(1) introductory text, (h)(2), and an appropriate respirator that complies Avenue, NW., Washington, DC 20220. (k)(9)(i) are revised to read as follows: with the requirements of this paragraph. To visit the library, call (202) 622–0990 Respirators must be used during: for an appointment. § 1926.1101 Asbestos. FOR FURTHER INFORMATION CONTACT: Lori * * * * * * * * * * Santamorena (Executive Director) or (2) * * * (h) * * * Kurt Eidemiller (Associate Director), (i) The employer must implement a (1) General. For employees who use Department of the Treasury, Bureau of respiratory protection program in respirators required by this section, the the Public Debt, Office of the accordance with § 1910.134 (b) through employer must provide each employee Commissioner, Government Securities (d) (except (d)(1)(iii)), and (f) through an appropriate respirator that complies Regulations Staff, at (202) 504–3632 or (m), which covers each employee with the requirements of this paragraph. e-mail us at [email protected]. required by this section to use a Respirators must be used during: SUPPLEMENTARY INFORMATION: * * * * * respirator. (2) * * * * * * * * I. Background (i) The employer must implement a (m) * * * The Department of the Treasury respiratory protection program in * * * * * (‘‘Treasury’’) is amending 31 CFR part accordance with § 1910.134 (b) through (4) * * * 380, which governs the acceptable types (d) (except (d)(1)(iii)), and (f) through (i) The employer shall train each of collateral and their assigned values (m), which covers each employee employee who is potentially exposed to that may be pledged to secure deposits required by this section to use a cadmium in accordance with the of public monies and other financial respirator. requirements of this section. The interests of the government under * * * * * employer shall institute a training Treasury’s Fiscal Service collateral (k) * * * program, ensure employee participation programs.

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Treasury’s Fiscal Service administers immediate effect, under 5 U.S.C. Lieu of Bonds with Sureties). The several financial programs that involve 553(b)(B) and 553(d)(3). regulations in this part apply only to the the pledging of specific collateral. These acceptability and valuation of collateral Regulatory Flexibility Act, 5 U.S.C. 601 programs are described in, and governed that may be pledged under these et seq. by, the regulations at 31 CFR part 202 programs. 31 CFR parts 202, 203, and (Depositaries and Financial Agents of Because a notice of proposed 225 continue to govern the respective the Government), 31 CFR part 203 rulemaking is not required under 5 programs themselves. (Payment of Federal Taxes and the U.S.C. 553 for this rule, the Regulatory Treasury Tax and Loan Program), and Flexibility Act does not apply to this § 380.1 What special definitions apply to this part? 31 CFR part 225 (Acceptance of Bonds rule. Special definitions that may apply to Secured by Government Obligations in List of Subjects in 31 CFR Part 380 Lieu of Bonds with Sureties). The this part are contained in 31 CFR parts Financial Management Service (‘‘FMS’’), Collateral, Depositaries, Government 202, 203 and 225. a bureau within Treasury’s Fiscal obligations, Government securities, Securities, Surety bonds. Subpart B—Acceptable Collateral and Service, administers these programs, Its Valuation which are handled operationally by the ■ For the reasons set forth in the Federal Reserve System, acting as fiscal preamble, we amend Subchapter B of § 380.2 What collateral may I pledge if I am agent for Treasury. The Bureau of the Chapter II of Title 31 of the Code of a depositary or a financial agent of the Public Debt (‘‘Public Debt’’), another Federal Regulations by revising part 380 Government under 31 CFR part 202, and bureau within Treasury’s Fiscal Service, to read as follows: what value will you assign to it? administers 31 CFR part 380, which Unless we specify otherwise, we will governs the acceptability and valuation PART 380—COLLATERAL list the types and valuation of of the collateral in these programs. The ACCEPTABILITY AND VALUATION acceptable collateral in Treasury procedural instructions. We will also Government Securities Regulations Staff Subpart A—General Information at Public Debt is responsible for post updated information and guidance guidance and interpretations of those Sec. on Treasury’s Bureau of the Public Debt 380.0 What do these regulations govern? Web site at http:// regulations. 380.1 What special definitions apply to this www.treasurydirect.gov. All information about the part? acceptability and valuation of collateral Subpart B—Acceptable Collateral and Its § 380.3 What collateral may I pledge if I am for these programs can be found on Valuation a Treasury Tax and Loan depositary under Public Debt’s Web site. The Web site has 31 CFR part 203, and what value will you 380.2 What collateral may I pledge if I am assign to it? changed and it can now be accessed at a depositary or a financial agent of the http://www.treasurydirect.gov instead of Government under 31 CFR part 202, and Unless we specify otherwise, we will its previous address, http:// what value will you assign to it? list the types and valuation of www.publicdebt.treas.gov. Also, this 380.3 What collateral may I pledge if I am acceptable collateral in Treasury amendment updates Public Debt’s a Treasury Tax and Loan depositary procedural instructions. We will also postal mailing address. under 31 CFR part 203, and what value post updated information and guidance will you assign to it? on Treasury’s Bureau of the Public Debt II. Procedural Requirements 380.4 What collateral may I pledge instead Web site at http:// Executive Order 12866 of a surety bond under 31 CFR part 225, www.treasurydirect.gov. and what value will you assign to it? This final rule is not subject to Subpart C—Miscellaneous Provisions § 380.4 What collateral may I pledge Executive Order 12866 because it relates instead of a surety bond under 31 CFR part 380.5 Where can I find current information, 225, and what value will you assign to it? only to Treasury’s organization, and who can I contact for additional specifically, the mailing address and guidance and interpretation? Unless we specify otherwise, we will Web site URL for one of its bureaus. list the types and valuation of Authority: 12 U.S.C. 90, 265–266, 332, 391, acceptable collateral in Treasury Administrative Procedure Act, 5 U.S.C. 1452(d), 1464(k), 1767, 1789a, 2013, 2122, procedural instructions. We will also 551 et seq. 3101–3102; 26 U.S.C. 6302; 31 U.S.C. 321, 323, 3301–3304, 3336, 9301, 9303. post updated information and guidance The procedures for public notice and on Treasury’s Bureau of the Public Debt Web site at http:// comment under 5 U.S.C. 553(b), and the Subpart A—General Information delayed effective date requirement of 5 www.treasurydirect.gov. § 380.0 What do these regulations govern? U.S.C. 553(d), do not apply when an Subpart C—Miscellaneous Provisions agency for good cause finds that the The regulations in this part govern the procedures are unnecessary. This rule types of acceptable collateral that you § 380.5 Where can I find current does not promulgate any substantive may pledge to secure deposits of public information, and who can I contact for changes to the regulations being monies and other financial interests of additional guidance and interpretation? amended. Rather, this rule merely the Federal Government, as well as the You can find a current list of makes minor, technical changes, valuation of that collateral. Specifically, acceptable classes of securities, specifically, updating the mailing the regulations in this part apply to the instruments and respective valuations address and Web site address listed in programs governed by the Department on Treasury’s Bureau of the Public Debt the regulations, that do not involve the of the Treasury’s regulations at 31 CFR Web site at http:// exercise of agency discretion and which part 202 (Depositaries and Financial www.treasurydirect.gov. You may also are unlikely to generate public Agents of the Government), 31 CFR part contact the Office of the Commissioner. comment. Accordingly, Treasury finds 203 (Payment of Federal Taxes and the We can be reached by postal mail at: that good cause exists to dispense with Treasury Tax and Loan Program), and Department of the Treasury, Bureau of notice and comment procedures for this 31 CFR part 225 (Acceptance of Bonds the Public Debt, Office of the rule, and to have the rule take Secured by Government Obligations in Commissioner, Government Securities

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Regulations Staff, 799 9th Street, NW., DATES: This rule is effective December 701, that publication of this amendment 8th Floor, Washington, DC 20239–0001, 12, 2008 and is applicable beginning 20 for public comment prior to adoption is or by e-mail at [email protected]. November 2008. impracticable, unnecessary, and FOR FURTHER INFORMATION CONTACT: contrary to public interest since it is Kenneth E. Carfine, Commander M. Robb Hyde, JAGC, U.S. based on technical findings that the Fiscal Assistant Secretary. Navy, Deputy Assistant Judge Advocate placement of lights on this vessel in a [FR Doc. E8–29440 Filed 12–11–08; 8:45 am] General (Admiralty and Maritime Law), manner differently from that prescribed BILLING CODE 4810–39–P Office of the Judge Advocate General, herein will adversely affect the vessel’s Department of the Navy, 1322 Patterson ability to perform its military functions. Ave., SE., Suite 3000, Washington Navy List of Subjects in 32 CFR Part 706 DEPARTMENT OF DEFENSE Yard, DC 20374–5066, telephone number: 202–685–5040. Department of the Navy Marine safety, Navigation (Water), SUPPLEMENTARY INFORMATION: Pursuant and Vessels. to the authority granted in 33 U.S.C. 32 CFR Part 706 ■ 1605, the Department of the Navy For the reasons set forth in the preamble, amend part 706 of title 32 of Certifications and Exemptions Under amends 32 CFR Part 706. This amendment provides notice that the Code of Federal Regulations as the International Regulations for follows: Preventing Collisions at Sea, 1972 the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) PART 706—CERTIFICATIONS AND AGENCY: Department of the Navy, DoD. of the Navy, under authority delegated EXEMPTIONS UNDER THE ACTION: Final rule. by the Secretary of the Navy, has certified that USS SAN FRANCISCO INTERNATIONAL REGULATIONS FOR SUMMARY: The Department of the Navy (SSN 711) is a vessel of the Navy which, PREVENTING COLLISIONS AT SEA, is amending its certifications and due to its special construction and 1972 exemptions under the International purpose, cannot comply fully with the ■ Regulations for Preventing Collisions at following specific provisions of 72 1. The authority citation for 32 CFR Sea, 1972 (72 COLREGS), to reflect that COLREGS without interfering with its Part 706 continues to read as follows: the Deputy Assistant Judge Advocate special function as a naval ship: Rule Authority: 33 U.S.C. 1605. General (Admiralty and Maritime Law) 21(a) pertaining to the location of the of the Navy has determined that USS masthead lights over the fore and aft ■ 2. Section 706.2 is amended as SAN FRANCISCO (SSN 711) is a vessel centerline of the ship. The Deputy follows: of the Navy which, due to its special Assistant Judge Advocate General ■ A. In Table Two by adding, in construction and purpose, cannot (Admiralty and Maritime Law) has also numerical order, the following entry for comply fully with certain provisions of certified that the lights involved are USS SAN FRANCISCO (SSN 711): the 72 COLREGS without interfering located in closest possible compliance with its special function as a naval ship. with the applicable 72 COLREGS § 706.2 Certifications of the Secretary of The intended effect of this rule is to requirements. the Navy under Executive Order 11964 and warn mariners in waters where 72 Moreover, it has been determined, in 33 U.S.C. 1605. COLREGS apply. accordance with 32 CFR parts 296 and * * * * *

TABLE TWO *******

Side Forward AFT anchor lights, Side Masthead anchor Forward light, dis- Side lights, distance lights, lights, dis- light, dis- anchor tance below AFT anchor distance forward of distance tance to tance light, flight dk in light, num- below flight forward inboard of Vessel Number stbd of keel below number meters; ber of; Rule dk in masthead ship’s in meters; flight dk of; Rule Rule 21(e), 30(a)(ii) meters; light in sides in Rule 21(a) in meters; 30(a)(i) Rule § 2(g), meters; meters; § 2(K), 30(a)(ii) Annex I § 3(b), § 3(b), Annex I Annex I Annex I

******* USS SAN FRANCISCO SSN 711 0.41

*******

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* * * * * Potomac Yard (South Bldg.), 2777 S. be issued as proposed rules with Approved: November 20, 2008. Crystal Dr., Arlington, VA. The hours of opportunity for comment. The types of M. Robb Hyde, operation of this Docket Facility are changes being made today involve error from 8:30 a.m. to 4 p.m., Monday correction, conforming changes, and Commander, JAGC, U.S. Navy, Deputy Assistant Judge Advocate, General (Admiralty through Friday, excluding legal general non-substantive improvements and Maritime Law). holidays. The Docket Facility telephone in presentation and format. number is (703) 305–5805. [FR Doc. E8–29435 Filed 12–11–08; 8:45 am] III. Today’s final rule BILLING CODE 3810–FF–P FOR FURTHER INFORMATION CONTACT: Kathryn Boyle, Field and External In today’s final rule EPA is making Affairs Division (7506P), Office of the following key types ofchanges to the Pesticide Programs, Environmental regulations in 40 CFR parts 150 – 180. ENVIRONMENTAL PROTECTION 1. EPA is removing compliance and AGENCY Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460– effective dates that have passed.These 0001; telephone number: (703) 305– involve certain provisions concerning: 40 CFR Chapter I a. Data compensation (part 152, 6304; fax number: (703) 305–5884; e- subpart E); [EPA–HQ–OPP–2008–0247; FRL–8146–6] mail address: [email protected]. b. Worker protection interim Pesticide Regulations; Technical SUPPLEMENTARY INFORMATION: provisions and exceptions (part 170). Amendments I. Does this Action Apply to Me? 2. EPA is removing unnecessary or obsolete references, including: AGENCY: Environmental Protection You may be potentially affected by a. References to the Pesticide Agency (EPA). this action if you produce or register Assessment Guidelines that are ACTION: Final rule. pesticide products, or petition the notneeded in regulatory text (part 172); Agency to establish or modify a SUMMARY: EPA has reviewed its b. Definitions related solely to plant- pesticide tolerance. Potentially affected incorporated protectants that are not pesticide regulations contained in 40 entities may include, but are not limited CFR Parts 150–180, and is making used in the regulatory text of part 152. to Pesticide Producers (NAICS 32532), These definitions are duplicative of technical changes in a number of areas. e.g., pesticide manufacturers or These technical changes will correct definitions in part 174. formulators of pesticide products or c. Reference in § 180.34 to the errors and cross-references, improve importers of pesticide products. presentation and format, and conform certification of usefulness, a provision This listing is not intended to be eliminated by the Food Quality the regulations to current CFR practice. exhaustive, but rather provides a guide These changes have no substantive Protection Act (FQPA) in 1996. for readers regarding entities likely to be 3. EPA is removing most references to impact on any requirements. As such, affected by this action. Other types of section 409 of the FFDCA. Prior to 1996, notice and public comment procedures entities not listed in this unit could also EPA established tolerances for raw are unnecesary, and EPA finds that this be affected. The North American agricultural commodities under section constitutes good cause under the Industrial Classification System 408 and food additive regulations for Administrative Procedure Act. (NAICS) codes have been provided to certain pesticide residues in processed DATES: This final rule is effective assist you and others in determining foods under section 409, which pertains February 10, 2009. whether this action might apply to to food additives. As part of the FQPA, ADDRESSES: EPA has established a certain entities. If you have any Congress combined EPA’s authority to docket for this action under docket questions regarding the applicability of regulate all pesticide chemical residues identification (ID) number EPA–HQ– this action to a particular entity, consult in food under section 408 of the FFDCA OPP–2008–0247. To access the the person listed under FOR FURTHER (leaving the Food and Drug electronic docket, go to http:// INFORMATION CONTACT. Administration the sole authority under www.regulations.gov, select ‘‘Advanced II. Background section 409 to regulate food additives). Search,’’ then ‘‘Docket Search.’’ Insert As it no longer has any regulatory the docket ID number where indicated Under the Federal Insecticide, authority under section 409, EPA is and select the ‘‘Submit’’ button. Follow Fungicide and Rodenticide Act (FIFRA) eliminating most references to FFDCA the instructions on the regulations.gov and the Federal Food, Drug and section 409 from its regulations. Those website to view the docket index or Cosmetic Act (FFDCA), the Agency retained are needed for continued access available documents. All regulates the sale, distribution and use enforcement of pre-FQPA provisions. documents in the docket are listed in of pesticides. EPA regulations covering 4. EPA is correcting other statutory the docket index available in activities under these statutes are and regulatory cross-references. regulations.gov. Although listed in the contained in 40 CFR parts 150 – 180. a. EPA is correcting the references to index, some information is not publicly Many of these regulations were data compensation provisions in FIFRA available, e.g., Confidential Business promulgated or last revised in the 1970s sec. 3(c)(1)(D), which is now 3(c)(1)(F). Information (CBI) or other information and 1980s and have not been b. EPA is correcting the references to whose disclosure is restricted by statute. significantly updated. FIFRA sec. 4, which is now FIFRA sec. Certain other material, such as Over the past year, EPA has 11. copyrighted material, is not placed on conducted a detailed review of its c. EPA is correcting the regulatory the Internet and will be publicly pesticide regulations, contained in 40 cross-references from § 156.10(h) to available only in hard copy form. CFR parts 150 – 180. EPA believes that § 156.62 and § 162.11 to part 154. These Publicly available docket materials are improvements in these regulations are regulations were restructured a number available either in the electronic docket warranted. Today’s final rule makes of years ago, but the cross-references at http://www.regulations.gov, or, if only ‘‘housekeeping’’ or non-substantive were not. available in hard copy, at the Office of technical changes to a series of 5. EPA is correcting part 155, subpart Pesticide Programs (OPP) Regulatory regulations. Future rulemakings C, Registration Review Procedures, to Public Docket in Rm. S–4400, One implementing substantive changes will include the mandatory 15-year

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registration review and minor changes clarity and usefulness of its regulations. Distribution, or Use (66 FR 28355, May to docket procedures required under the EPA finds that this constitutes good 22, 2001). Pesticide Regulatory Improvement cause under 5 U.S.C. 553(b)(B). This action does not involve any Renewal Act. technical standards that would require 6. EPA is updating organizational and V. FIFRA Review Requirements Agency consideration of voluntary docket references in the regulations. For In accordance with FIFRA sec. 25(a), consensus standards pursuant to section example, EPA is revising a reference to a draft of this final rule was submitted 12(d) of the National Technology the U.S. Bureau of Mines to refer to the to the Secretary of Agriculture, the Transfer and Advancement Act of 1995, National Institute for Occupational FIFRA SAP, and appropriate Public Law 104–113, section 12(d) (15 Safety and Health. EPA is revising the Congressional Committees. The FIFRA U.S.C. 272 note). The rule also does not URL for the location of EPA’s electronic SAP and the Secretary of Agriculture involve special consideration of dockets to www.regulations.gov. waived review of the final rule. environmental justice related issues 7. EPA is revising the regulations to under Executive Order 12898, entitled conform with current CFR practice. VI. Statutory and Executive Order Federal Actions to Address a. EPA is revising the structure used Reviews Environmental Justice in Minority to present definitions. Current CFR Under Executive Order 12866, Populations and Low-Income practice is to list definitions entitled Regulatory Planning and Populations (55 FR 7629, February 16, alphabetically without numeric or alpha Review (58 FR 51735, October 4, 1993), 1994). paragraph designations. EPA is revising this action is not a ‘‘significant VII. Congressional Review Act various definitions sections to provide regulatory action’’ subject to review by for greater consistency in presentation the Office of Management and Budget The Congressional Review Act, 5 by removing numeric and alpha (OMB) under Executive Order 12866, U.S.C. 801 et seq., generally provides paragraph designations from parts 154, nor does this rule contain any that before a rule may take effect, the 157, 162, 166, and 172. In addition, EPA information collections subject to OMB Agency promulgating the rule must is standardizing the introductory approval under the Paperwork submit a rule report to each House of material and, in a few cases, revising a Reduction Act, 44 U.S.C. 3501 et seq. the Congress and the Comptroller definition from ‘‘term includes’’ or Because the Agency has made a ‘‘good General of the United States. EPA will ‘‘term refers to’’ to ‘‘term means.’’ In cause’’ finding that this action is not submit a report containing this rule and each instance where EPA is making this subject to notice-and-comment other required information to the U.S. revision the existing definition contains requirements under the APA or any Senate, the U.S. House of language that makes the definition all- other statute (see Unit IV.), it is not Representatives, and the Comptroller inclusive, so that the term ‘‘includes’’ in subject to the regulatory flexibility General of the United States prior to actuality means ‘‘means.’’ provisions of the Regulatory Flexibility publication of the rule in the Federal b. EPA is removing the topic headings Act (RFA) (5 U.S.C. 601 et seq.), or to Register. This rule is not a ‘‘major rule’’ in part 180, which are no longerused in sections 202 and 205 of the Unfunded as defined by 5 U.S.C. 804(2). regulations. Mandates Reform Act of 1995 (UMRA) List of Subjects 8. EPA is reformatting certain material (Public Law 104–4). Nor does this action without substantive change for greater significantly or uniquely affect small 40 CFR Parts 152 and 154 clarity and understanding. governments or impose a significant Environmental protection, a. EPA is restructuring the opening intergovernmental mandate, as Administrative practice and procedure, paragraphs of § 152.1 and § 160.1 b. EPA is revising certain table titles described in sections 203 and 204 of Pesticides and pest, Reporting and in part 158 to clearly identify UMRA. recordkeeping requirements. experimental use permit versus This rule will not have substantial 40 CFR Part 155 direct effects on the States, on the registration data requirements. Environmental protection, 9. EPA is revising section titles to relationship between the national government and the States, or on the Administrative practice and procedure, reflect statutory language.Specifically, Confidential business information, EPA is revising the titles of § 152.10 and distribution of power and responsibilities among the various Pesticides and pest, Reporting and § 152.20 to accurately reflect the recordkeeping requirements. underlying statutory language. levels of government, as specified in Executive Order 13132, entitled 40 CFR Part 156 IV. Good Cause Exemption Federalism (64 FR 43255, August 10, Environmental protection, 1999), nor will this rule have any ‘‘tribal Section 553 of the Administrative Administrative practice and procedure, implications’’ as described in Executive Procedure Act (APA), 5 U.S.C. labeling, Pesticides and pest, Reporting Order 13175, entitled Consultation and 553(b)(B), provides that, when an and recordkeeping requirements. agency for good cause finds that notice Coordination with Indian Tribal and public procedure are impracticable, Governments (65 FR 67249, November 40 CFR Part 157 unnecessary or contrary to the public 9, 2000). Environmental protection, interest, the agency may issue a final This rule does not require any special Administrative practice and procedure, rule without providing notice and an considerations, OMB review or any Infants and children, Packaging and opportunity for public comment. EPA Agency action under Executive Order containers, Pesticides and pest, has determined that there is good cause 13045, entitled Protection of Children Reporting and recordkeeping for issuing today’s rule final without from Environmental Health Risks and requirements. prior proposal and opportunity for Safety Risks (62 FR 19885, April 23, comment because notice and public 1997). Nor will this rule have any affect 40 CFR Parts 158 and 159 comment are unnecessary. EPA is on energy supply, distribution or use as Environmental protection, making only technical changes that have described in Executive Order 13211, Confidential business information, no substantive effect on any Actions Concerning Regulations That Pesticides and pest, Reporting and requirement, while improving the Significantly Affect Energy Supply, recordkeeping requirements.

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40 CFR Part 160 § 152.1 Scope. § 152.10 Products that are not pesticides (a) Part 152 sets forth procedures, because they are not intended for a Environmental protection, pesticidal purpose. Laboratories, Pesticides and pest, requirements and criteria concerning * * * * * Reporting and recordkeeping the registration of pesticide products ■ requirements. under FIFRA section 3, including plant- 6. By revising the section heading of incorporated protectants (PIPs). Unless § 152.20 to readas follows: 40 CFR Part 162 specifically superseded by part 174, the § 152.20 Exemptions for pesticides Environmental protection, regulations in part 152 apply to PIPs. (b) Part 152 also describes associated adequately regulated by another Federal Administrative practice and procedure, agency. regulatory activities affecting Intergovernmental relations, * * * * * Laboratories, Pesticides and pest. registration, as described in this paragraph. ■ 7. Section 152.50 is amended by 40 CFR Part 164 (1) Data compensation and exclusive revising paragraph (i), and by adding Environmental protection, use of data in support of registration. paragraph (j) to read as follows: Administrative practice and procedure, Refer to subpart E of this part. (2) Rights and obligations of § 152.50 Contents of application. Pesticides and pest. registrants. Refer to subpart G of this * * * * * 40 CFR Part 166 part. (i) Statement concerning tolerances. (3) Classification of pesticide uses. (1) If the proposed labeling bears Environmental protection, Refer to subpart I of this part. instructions for use of the pesticide on Administrative practice and procedure, (4) Fees. Refer to subpart U of this food or feed crops, or if the intended use Intergovernmental relations, part. of the pesticide results or may be Laboratories, Pesticides and pest. (5) Requirements pertaining to expected to result, directly or indirectly, 40 CFR Part 168 pesticide devices. Refer to subpart Z of in pesticide chemical residues in or on this part. Environmental protection, food or feed (including residues of any ■ 3. In § 152.3 by removing the Administrative practice and procedure, active ingredient, inert ingredient, definitions of ‘‘Genetic material Advertising, Pesticides and pest. metabolite, or degradation product), the necessary for the production,’’ ‘‘In a applicant must submit a statement 40 CFR Part 170 living plant,’’ ‘‘Noncoding, indicating whether such residues are Environmental protection, nonexpressed nucleotide sequences,’’ authorized by a tolerance or exemption Intergovernmental relations, Labeling, ‘‘Pesticidal substance,’’ ‘‘Produce from the requirement of a tolerance Occupational safety and health, thereof,’’ and ‘‘Regulatory region’’, and issued under section 408 of the Federal Pesticides and pest. by revising the definitions of Food, Drug and Cosmetic Act (FFDCA). ‘‘Applicant,’’ and subparagraph (1) (2) If such residues have not been 40 CFR Part 171 under the definition for ‘‘New use’’ to authorized, the application must be Environmental protection, Indian read as follows: accompanied by a petition for establishment of appropriate tolerances lands, Intergovernmental relations, § 152.3 Definitions. Laboratories, Pesticides and pest, or exemptions from the requirement of * * * * * a tolerance, in accordance with part 180 Reporting and recordkeeping Applicant means a person who requirements. of this chapter. applies for a registration or amended (j) Fees. (1) The applicant shall 40 CFR Part 172 registration under FIFRA sec. 3. identify the appropriate fee category in Environmental protection, * * * * * the schedule provided for by FIFRA sec. Intergovernmental relations, Labeling, New use *** 33, and shall submit the fee for that (1) Any proposed use pattern that Pesticides and pest, Reporting and category as prescribed by the latest EPA would require the establishment of, the recordkeeping requirements, Research. notice of section 33 fees. increase in, or the exemption from the (2) If FIFRA sec. 33 is not in effect, the 40 CFR Part 180 requirement of a tolerance or food applicant shall submit any fees required Environmental protection, additive regulation under section 408 of by subpart U of this part, if applicable. Administrative practice and procedure, the Federal Food, Drug and Cosmetic ■ 8. By revising § 152.80 to read as Pesticides and pest, Reporting and Act; follows: recordkeeping requirements. * * * * * ■ 4. In § 152.6 by revising paragraph § 152.80 General. Dated: December 2, 2008. (a)(2) to read as follows: This subpart E describes the information that an applicant must James B. Gulliford, § 152.6 Substances excluded from submit with his application for Assistant Administrator for Prevention, regulation by FIFRA. registration or amended registration to Pesticides, and Toxic Substances. * * * * * comply (and for the Agency to ■ Therefore, 40 CFR chapter I is (a) * * * determine compliance) with the amended as follows: (2) Claims. The product must bear a provisions of FIFRA sec. 3(c)(1)(F). This sterilant claim, or a sterilant plus subpart also describes the procedures by PART 152—[AMENDED] subordinate level disinfection claim. which data submitters may challenge Products that bear antimicrobial claims ■ 1. The authority citation for part 152 registration actions which allegedly solely at a level less than ‘‘sterilant’’ are continues to read as follows: failed to comply with these procedures. not excluded and are jointly regulated If the Agency determines that an Authority: 7 U.S.C. 136 - 136y; Subpart U by EPA and FDA. is also issued under 31 U.S.C. 9701. applicant has failed to comply with the * * * * * requirements and procedures in this ■ 2. By revising § 152.1 to read as ■ 5. By revising the section heading of subpart, the application may be denied. follows: § 152.10 to readas follows: If the Agency determines, after

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registration has been issued, that an § 152.110 Time for agency review. Act or FIFRA means the Federal applicant failed to comply with these The Agency will complete its review Insecticide, Fungicide, and Rodenticide procedures and requirements, the of applications as expeditiously as Act, as amended. Agency may issue a notice of intent to possible. Applications subject to Administrator means the cancel the product’s registration. specific timeframes under the fee Administrator of the Environmental Protection Agency or any officer or § 152.83 [Amended] schedule established by FIFRA section 33 will be reviewed within the employee thereof to whom authority has ■ 9. Section 152.83 is amended by timeframes established for the been delegated to act for the removing the alpha paragraph application or action type. Administrator. Confidential business information designations from the definitions, and ■ 14. In § 152.112 by revising paragraph means trade secrets or confidential revising the reference to ‘‘FIFRA section (d) to read as follows, and in paragraph commercial or financial information 3(c)(1)(D)’’ to read ‘‘FIFRA section (g), by revising the phrase ‘‘under under FIFRA section 10(b) or 5 U.S.C. 3(c)(1)(F)’’, wherever it appears. FFDCA sec. 408, sec. 409 or both; and’’ 552(b)(3) or (4). to read ‘‘under FFDCA sec. 408, and’’. § 152.86 [Amended] Other significant evidence means ■ 10. Section 152.86 is amended by § 152.112 Approval of registration under factually significant information that revising the reference ‘‘FIFRA section FIFRA sec. 3(c)(5) relates to the uses of the pesticide and 3(c)(1)(D)’’ to read ‘‘FIFRA section * * * * * its adverse risk to man or to the 3(c)(1)(F)’’ wherever it appears. (d) The Agency has determined that environment but does not include evidence based only on misuse of the ■ 11. Section 152.93 is amended by the composition of the product is such pesticide unless such misuse is revising the introductory text of as to warrant the proposed efficacy widespread and commonly recognized paragraph (b)(2), paragraphs (b)(2)(iii) claims for it, if efficacy data are required practice. and (b)(3) to read as follows: to be submitted for the product by part 158 or part 161 of this chapter, as Person means an applicant, registrant, § 152.93 Citation of a previously submitted applicable. manufacturer, pesticide user, valid study. environmental group, labor union, or * * * * * * * * * * other individual or group of individuals (b) * * * § 152.116 and § 152.135 [Amended] interested in pesticide regulation. Pesticide use means a use of a (2) Citation with offer to pay ■ 15. Section 152.116 and 152.135 are pesticide (described in terms of the compensation to the original data amended by revising the reference submitter. The applicant may cite any application site and other applicable ‘‘FIFRA sec. 3(c)(1)(D)(i)’’ to read identifying factors) that is included in valid study that is not subject to the ‘‘FIFRA sec. 3(c)(1)(F)(i)’’ or by revising exclusive use provisions of FIFRA the labeling of a pesticide product the reference ‘‘FIFRA sec. 3(c)(1)(D)’’ to which is registered, or for which an section 3(c)(1)(F)(i) without written read ‘‘FIFRA section 3(c)(1)(F)’’, authorization from the original data application for registration is pending, whichever occurs and wherever it and the terms and conditions (or submitter if the applicant certifies to the occurs. Agency that he has furnished to the proposed terms and conditions) of ■ 16. Section 152.125 is revised to read original data submitter: registration for the use. as follows: Terms and conditions of registration * * * * * means the terms and conditions (iii) An offer to pay the person § 152.125 Submission of information pertaining to adverse effects. governing lawful sale, distribution, and compensation to the extent required by use approved in conjunction with FIFRA section 3(c)(1)(F); If at any time the registrant receives registration, including labeling, use * * * * * or becomes aware of any factual classification, composition, and (3) Citation without authorization or information regarding unreasonable packaging. offer to pay. The applicant may cite any adverse effects of the pesticide on the Validated test means a test valid study without written environment that has not previously determined by the Agency to have been authorization from, or offer to pay to, been submitted to the Agency, the conducted and evaluated in a manner the original data submitter if the study registrant shall, in accordance with consistent with accepted scientific was originally submitted to the Agency FIFRA section 6(a)(2) and the procedures. on or before the date that is 15 years requirements of part 159, subpart D of before the date of the application for this chapter, provide such information PART 155—[AMENDED] which it is cited, and the study is not to the Agency, clearly identified as ■ an exclusive use study, as defined in FIFRA 6(a)(2) data. 19. The authority citation for part 155 § 152.83(c). is revised to read as follows: PART 154—[AMENDED] Authority: 7 U.S.C. 136a and 136w. §§ 152.94, 152.95, 152.98, and 152.99 [Amended] ■ 17. The authority citation for part 154 ■ 20. By revising § 155.40(a) to read as is revised to read as follows: follows: ■ 12. Sections 152.94, 152.95, 152.98, are amended by revising the reference Authority: 7 U.S.C. 136a, d, and w. § 155.40 General. ‘‘FIFRA section 3(c)(1)(D)’’ to read ■ 18. Section 154.3 is revised to read as (a) Purpose. These regulations ‘‘FIFRA section 3(c)(1)(F)’’ and § 152.99 follows: establish procedures for the registration is amended by revising the reference review program required in FIFRA ‘‘FIFRA section 3(c)(1)(D)(ii)’’ to read § 154.3 Definitions. section 3(g). Registration review is the ‘‘FIFRA section 3(c)(1)(F)(ii)’’ whichever Terms used in this part have the same periodic review of a pesticide’s occurs and wherever it occurs. meaning as in the Act. In addition, as registration to ensure that each pesticide ■ 13. By revising § 152.110 to read as used in this part, the following terms registration continues to satisfy the follows: shall apply: FIFRA standard for registration. Under

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FIFRA section 3(g), each pesticide is directions only for general use(s) and § 157.21 [Amended] required to be reviewed every 15 years. the other bearing directions for ■ 29. Section 157.21 is amended by * * * * * restricted use(s) except that, if a product removing the alpha paragraph ■ 21. By revising § 155.52(a) and (c), to has both restricted use(s) and general designations from the definitions. read as follows: use(s), both of these uses may appear on a product labeled for restricted use. PART 158—[AMENDED] 155.52 Stakeholder engagement. Such products shall be subject to the * * * * * provisions of paragraph (j)(2) of this ■ 30. The authority citation for part 158 (a) Minutes of meetings with persons section. continues to read as follows: outside of government. Subject to * * * * * Authority: 7 U.S.C. 136-136y; 21 U.S.C. paragraph (c) of this section, if the ■ 24. Section 156.200 is amended by 346a. Agency meets with one or more revising paragraph (c) to read as follows: individuals that are not government § 158.220 [Amended] employees to discuss matters relating to § 156.200 Scope and applicability. ■ 31. In § 158.220, the title of the table a registration review, the Agency will * * * * * in paragraph (c) is revised to read place in the docket a list of meeting (c) Effective dates. No product to ‘‘Table—Experimental Use Permit Data attendees, minutes of the meeting, and which this subpart applies shall be Requirements for Product Performance’’. any documents exchanged at the distributed or sold without amended meeting, not later than the earlier of: labeling by any registrant after April 21, § 158.230 [Amended] (1) 45 days after the meeting; or 1994, or by any person after October 23, ■ 32. In § 158.230, the title of the table (2) The date of issuance of the 1995. in paragraph (c) is revised to read registration review decision. ■ 25. Section 156.203 is amended by ‘‘Table—Experimental Use Permit * * * * * revising the definition of ‘‘Restricted- Toxicity Data Requirements.’’ (c) Confidential business information. entry interval’’ to read as follows: The Agency will identify, but not § 158.243 [Amended] § 156.203 Definitions. include in the docket, any confidential ■ 33. In § 158.243, the title of the table business information whose disclosure * * * * * in paragraph (c) is revised to read Restricted-entry interval or REI means is prohibited by FIFRA section 10. ‘‘Table—Experimental Use Permit the time after the end of a pesticide Terrestrial and Aquatic Nontarget PART 156—[AMENDED] application during which entry to the Organism Data Requirements.’’ treated area is restricted. ■ 22. The authority citation for part 156 ■ 26. Section 156.204 is amended by § 158.260 [Amended] continues to read as follows: revising paragraph (b) to read as follows: ■ 34. In § 158.260, the title of the table Authority: 7 U.S.C. 136 - 136y. § 156.204 Modification and waiver of in paragraph (c) is revised to read ■ 23. Section 156.10 is amended by requirements. ‘‘Table—Experimental Use Permit revising paragraphs (i)(2)(ix), and * * * * * Environmental Fate Data (i)(2)(x)(D), and the introductory text of (b) Other modifications. The Agency, Requirements.’’ paragraph (j) to read as follows: pursuant to this subpart and authorities granted in FIFRA sections 3, 6, and 12, PART 159—[AMENDED] § 156.10 Labeling requirements. may, on its initiative or based on data * * * * * ■ 35. The authority citation for part 159 submitted by any person, modify or continues to read as follows: (i) * * * waive the requirements of this subpart, (2) * * * or permit or require alternative labeling Authority: 7 U.S.C. 136 - 136y. (ix) Specific directions concerning the statements. Supporting data may be ■ 36. Section 159.153 is amended by storage, residue removal and disposal of either data conducted according to the pesticide and its container, in revising the introductory text of Subdivisions U or K of the Pesticide paragraph (b) to read as follows: accordance with subpart H of this part. Assessments guidelines or data from These instructions must be grouped and medical, epidemiological, or health § 159.153 Definitions. appear under the heading,‘‘Storage and effects studies. A registrant who wishes Disposal.’’ This heading must be set in * * * * * to modify any of the statements required (b) For purposes of reporting type of the same minimum sizes as in §§ 156.206, 156.208, 156.210, or required for the child hazard warning. information pursuant to FIFRAsection 156.212 must submit an application for 6(a)(2), the following definitions apply (See table in § 156.60(b)) amended registration unless specifically (x) * * * only to this subpart: directed otherwise by the Agency. (D) For total release foggers as defined * * * * * in § 156.78(d)(1), the following §§ 156.206, 156.208, 156.210, and 156.212 ■ 37. Section 159.160 is amended by statements must be included in the [Amended] revising paragraph (b)(4) to read as ‘‘Directions for Use.’’ ■ 27. Sections 156.206(e), 156.208(c)(1), follows: * * * * * 156.210(b)(1), and 156.212(d)(2) are (j) Statement of use classification. § 159.160 Obligations of former amended by revising the reference registrants. Any pesticide product for which some ‘‘§ 156.10(h)(l)’’ to read ‘‘§ 156.62’’, * * * * * uses are classified for general use and wherever it occurs. others for restricted use shall be (b) * * * separately labeled according to the PART 157—[AMENDED] (4) The information pertains solely to labeling standards set forth in this a formerly registered product that no subsection, and shall be marketed as ■ 28. The authority citation for part 157 longer meets the definition of separate products with different continues to read as follows: ‘‘pesticide’’ in section 2(u) of FIFRA. registration numbers, one bearing Authority: 7 U.S.C. 136w. * * * * *

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§ 159.165 [Amended] Authority: 7 U.S.C. l36v, 136w. to meet special local needs under section 24(c) of the Act. ■ 38. Section 159.165 is amended in ■ 43. Section 162.151 is revised to read ■ paragraph (a)(2) by revising the as follows: 44. Section 162.152 is amended by reference ‘‘40 CFR 156.10(h)’’ to read revising paragraph (b)(1)(i) to read as ‘‘40 CFR 156.62’’ and in the § 162.151 Definitions. follows: introductory text of paragraph (d)(2) by Terms used in this part have the same § 162.152 State registration authority. revising the phrase ‘‘90 calendar days or meaning as in the Act and part 152 of less,’’ to read ‘‘more than 90 calendar this chapter. In addition, as used in this * * * * * (b) * * * days.’’ subpart, the following terms shall apply: (1) * * * Federally registered means currently PART 160—[AMENDED] (i)Subject to the provisions of registered under section 3 of the Act, paragraphs (a) and (b)(1)(ii) through (iv) ■ after having been initially registered of this section, States may register any 39. The authority citation for part 160 under the Federal Insecticide, is revised to read as follows: new use of a federally registered Fungicide, and Rodenticide Act of 1947 pesticide product. Authority: 7 U.S.C. 136a, 136c, 136d, 136f, by the Secretary of Agriculture or under * * * * * 136j, 136t, 136v, 136w; 21 U.S.C. 346a, 371, FIFRA by the Administrator. Reorganization Plan No. 3 of 1970. Manufacturing-use product means ■ 45. Section 162.153 is amended by redesignating paragraph (a)(6) as ■ 40. Section 160.1 is revised to read as any pesticide product other than a paragraph (j), and by revising the last follows: product to be labeled with directions for end use. This term includes any product sentence of paragraph (c)(2) to read as § 160.1 Scope and applicability. intended for use as a pesticide after follows: (a) This part prescribes good reformulation or repackaging. § 162.153 State registration procedures. laboratory practices for conducting New product means a pesticide * * * * * studies that support or are intended to product which is not a federally (c) * * * support applications for research or registered product. (2) * * * Such determinations may marketing permits for pesticide Pest problem means: also involve consideration of the effect products regulated by the EPA. This (1) A pest infestation and its of the anticipated classification of the part is intended to assure the quality consequences, or product or use under paragraph (g) of and integrity of data submitted pursuant (2) Any condition for which the use this section. to sections 3, 4, 5, 8, 18 and 24(c) of the of plant regulators, defoliants, or * * * * * Federal Insecticide, Fungicide, and desiccants would be appropriate. Rodenticide Act, as amended, and Product or pesticide product means a PART 164—[AMENDED] section 408 or 409 of the Federal Food, pesticide offered for distribution and Drug and Cosmetic Act. use, and includes any labeled container ■ 46. The authority citation for part 164 (b) This part applies to any study and any supplemental labeling. continues to read as follows: described by paragraph (a) of this Similar composition means a Authority: 7 U.S.C. 136d. section which any person conducts, pesticide product which contains only initiates, or supports on or after October the same active ingredient(s), or ■ 47. Section 164.2 is amended by 16, 1989. combinations of active ingredients, and revising paragraphs (l)(2) and (s) to read ■ 41. In § 160.3 revise the introductory which is in the same toxicity category, as follows: text of the definition for Application for as defined in § 156.62 of this chapter, as § 164.2 Definitions. research or marketing permit, and in the a federally registered pesticide product. Similar product means a pesticide * * * * * same definition, revise paragraph (5), (l) * * * and revise the definition for ‘‘person’’ to product which, when compared to a (2) Qualification. A judicial officer read as follows: federally registered product, has a shall be a permanent or temporary similar composition and a similar use § 160.3 Definitions. employee or officer of the Agency who pattern. may perform other duties for the * * * * * Similar use pattern means a use of a Agency. Such judicial officer shall not Application for research or marketing pesticide product which, when be employed by the Office of permit means any of the following: compared to a federally registered use of Prevention, Pesticides, and Toxic * * * * * a product with a similar composition, Substances or have any connection with (5) A petition or other request for does not require a change in the preparation or presentation of establishment or modification of a food precautionary labeling under part 156 of evidence for a hearing. additive regulation or other clearance by this chapter, and which is substantially the same as the federally registered use. * * * * * EPA under FFDCA section 409 that was (s) The term Respondent means the Registrations involving changed use submitted prior to August 3, 1996. Assistant Administrator of the Office of patterns are not included in this term. * * * * * Prevention, Pesticides, and Toxic Special local need means an existing Person means an individual, Substances. partnership, corporation, association, or imminent pest problem within a State * * * * * scientific or academic establishment, for which the State lead agency, based government agency or organizational upon satisfactory supporting PART 166—[AMENDED] unit thereof, or any other legal entity. information, has determined that an * * * * * appropriate federally registered ■ 48. The authority citation for part 166 pesticide product is not sufficiently is revised to read as follows: available. PART 162—[AMENDED] Authority: 7 U.S.C. 136p, and 136w. State or State lead agency means the ■ 42. The authority citation for part 162 State agency designated by the State to ■ 49. Section 166.3 is revised to read as continues to read as follows: be responsible for registering pesticides follows:

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§ 166.3 Definitions. cause economic or environmental harm § 168.65 Pesticide export label and Terms used in this part have the same or harm to human health. labeling requirements. meaning as in the Act. In addition, as IR-4 means the Interregional Research * * * * * used in this part, the following terms Project No. 4, a cooperative effort of the (b) * * * shall apply: state land grant universities, the U.S. (1) * * * Act means the Federal Insecticide, Department of Agriculture and EPA, to (ii) * * * Where the U.S. warning or Fungicide, and Rodenticide Act, as address the chronic shortage of pest caution statement, as translated, is amended. control options for minor crops, which obviously inappropriate to protect Agency and EPA mean the U. S. are generally of too small an acreage to residents of the importing country (for Environmental Protection Agency. provide economic incentive for example, where a statement calls for a Beneficial organism means any registration by the crop protection gas mask meeting the specifications of pollinating insect, or any pest predator, industry. the National Institute of Occupational parasite, pathogen or other biological New chemical means an active Safety and Health), an equivalent control agent which functions naturally ingredient not contained in any caution must be substituted. or as part of an integrated pest currently registered pesticide. * * * * * management program to control another Significant economic loss means that, (vii) Additional warning for highly pest. compared to the situation without the toxic pesticides. If the pesticide, device Emergency condition means an pest emergency and despite the best or active ingredient is highly toxic to urgent, non-routine situation that efforts of the affected persons, the humans, the skull and crossbones, the requires the use of a pesticide(s) and emergency conditions at the specific use word ‘‘Poison,’’ and a first aid statement shall be deemed to exist when: site identified in the application are must appear on the label. The word (1) No effective pesticides are reasonably expected to cause losses ‘‘Poison’’ and the first aid statement available under the Act that have meeting any of the following criteria: shall be in English and in the labeled uses registered for control of the (1) For pest activity that primarily appropriate foreign languages, as pest under the conditions of the affects the current crop or other output, described in paragraph (b)(4) of this emergency; and one or more of the following: section. The skull and crossbones may (2) No economically or be in red or black. For criteria on what (i) Yield loss greater than or equal to environmentally feasible alternative pesticides are highly toxic, see § 156.62 20%. practices which provide adequate of this chapter. (ii) Economic loss, including revenue control are available; and * * * * * (3) The situation: losses and cost increases, greater than or (i) Involves the introduction or equal to 20% of gross revenues. PART 170—[AMENDED] dissemination of an invasive species or (iii) Economic loss, including revenue a pesticide new to or not theretofore losses and cost increases greater than or ■ 52. The authority citation for part 170 known to be widely prevalent or equal to 50% of net revenues. continues to read as follows: distributed within or throughout the (2) For any pest activity where EPA Authority: 7 U.S.C. 136w. United States and its territories; or determines that the criteria in paragraph (ii) Will present significant risks to (1) of this definition would not § 170.5 [Removed] human health; or adequately describe the expected loss, ■ 53. Section 170.5 is removed. (iii) Will present significant risks to substantial loss or impairment of capital threatened or endangered species, assets, or a loss that would affect the § 170.104 [Amended] beneficial organisms, or the long-term financial viability expected ■ 54. Section 170.104 is amended by environment; or from the productive activity. revising the acronym ‘‘PPE’’ in (iv) Will cause significant economic Special Review means any interim paragraph (b)(2)(iii) to read ‘‘personal loss due to: administrative review of the risks and protective equipment’’ and by removing (A) An outbreak or an expected benefits of the use of a pesticide paragraph (c). outbreak of a pest; or conducted pursuant to the provisions of (B) A change in plant growth or part 154 of this chapter, or § 162.11 of § 170.112 [Amended] development caused by unusual this chapter prior to November 27, 1985, ■ 55. Section 170.112 is amended by environmental conditions where such or any subsequent version of those removing paragraphs (e)(7)(i) and change can be rectified by the use of a rules. (e)(7)(iv), and by redesignating pesticide(s). Unreasonable adverse effects on the paragraphs (e)(7)(ii) and (e)(7)(iii) as First food use means the use of a environment means any unreasonable paragraphs (e)(7)(i) and (e)(7)(ii), pesticide on a food or in a manner risk to man or the environment, taking respectively. which otherwise would be expected to into account the economic, social, and ■ 56. Section 170.130 is amended by result in residues in a food, if no environmental costs and benefits of the revising paragraph (a)(3)(i) to read as tolerance or exemption from the use of any pesticide. follows, by removing paragraph requirements of a tolerance for residues (a)(3)(iii) and by revising paragraph of the pesticide on any food has been PART 168—[AMENDED] (d)(3) to read as follows:. established for the pesticide under section 408 of the Federal Food, Drug, ■ 50. The authority citation for part 168 § 170.130 Pesticide safety training for and Cosmetic Act. continues to read as follows: workers. Food means any article used for food Authority: 7 U.S.C. 136 - 136y. (a) * * * or drink for man or animals. (3) * * * (i) Information before entry. Invasive species means, with respect ■ 51. Section 168.65 is amended by Except as provided in paragraph (a)(2) to a particular ecosystem, any species revising the last sentence of paragraph of this section, before a worker enters that is not native to that ecosystem, and (b)(1)(ii), and paragraph (b)(1)(vii), to any areas on the agricultural whose introduction does or is likely to read as set forth below. establishment where, within the last 30

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days a pesticide to which this subpart § 172.1 Definitions. ■ 64. Section 172.21 is revised to read applies has been applied or the Terms used in this part have the same as follows: restricted-entry interval for such meaning as in the Act. In addition, as pesticide has been in effect, the used in this part, the following terms § 172.21 Definitions. agricultural employer shall assure that shall apply: Terms used in this subpart shall have the worker has been provided the Act means the Federal Insecticide, the meaning set forth in FIFRA and in pesticide safety information specified in Fungicide and Rodenticide Act, as § 172.1. paragraph (c) of this section, in a amended. Designated State Agency means the manner that agricultural workers can Applicant means any person who State agency designated by State law or understand, such as by providing applies for an experimental use permit other authority to be responsible for written materials or oral communication pursuant to section 5 of the Act. registering pesticides to meet special or by other means. The agricultural Cooperator means any person who local needs. employer must be able to verify grants permission to a permittee or a Public or Private Agricultural compliance with this requirement. permittee’s designated participant for Research Agency or Educational Institution means any organization * * * * * the use of an experimental use pesticide at an application site owned or engaged in research pertaining to the (d) * * * controlled by the cooperator. agricultural use of pesticides, or any (3) Any person who issues an EPA- Experimental animals means educational institution engaged in approved Worker Protection Standard individual animals or groups of animals, pesticide research. Any research agency worker training certificate must assure regardless of species, intended for use or educational institution whose that the worker who receives the and used solely for research purposes. principal function is to promote, or training certificate has been trained in The term does not include animals whose principal source of income is accordance with paragraph (d)(4) of this intended to be used for any food directly derived from, the sale or section. purposes distribution of pesticides (or their active * * * * * Participant means any person acting ingredients) does not come within the as a representative of the permittee and meaning of this term. § 170.204 [Amended] responsible for making available for use, ■ 65. Section 172.24 is amended by ■ 57. Section 170.204 is amended by or supervising the use or evaluation of, revising paragraphs (b)(3),(d)(1)(i) and removing paragraph (c). an experimental use pesticide to be (d)(1)(ii) to read as follows: applied at a specific application site. PART 171—[AMENDED] Permittee means any applicant to § 172.24 State issuance of permits. whom an experimental use permit has * * * * * ■ 58. The authority citation for part 171 been granted. (b) * * * is revised to read as follows: Value for pesticide purposes means (3) For use of a restricted use that characteristic of a substance or pesticide only if the pesticide is to be Authority: 7 U.S.C. 136i and 136w. mixture of substances which produces used by, or under the direct supervision of, an applicator certified in accordance ■ 59. Section 171.2 is amended by an efficacious action on a pest. with section 11 of FIFRA. revising the introductory text of § 172.3 [Amended] paragraph (a) and by revising paragraph * * * * * ■ (b)(4) to read as follows: 62. Section 172.3(d) is amended by (d) * * * removing the third sentence which (1) * * * § 171.2 Definitions. reads ‘‘Subdivision I of the Pesticide (i) A tolerance or exemption from the requirement of a tolerance has been (a) Terms used in this subpart have Assessment Guidelines provides established for residues of the pesticide the same meaning as in the Act. In guidance on the procedures, data in or on such food or feed under section addition, the following definitions are requirements, and general aspects 408 of the Federal Food, Drug and applicable to all aspects of the pertaining to the issuance and use of Cosmetic Act; and certification of pesticide applicator EUPs.’’ ■ 63. Section 172.4 is amended by (ii) The proposed program would not program in this part: reasonably be expected to result in * * * * * revising paragraph (b)(2)(i) and (ii) to read as follows: residues of the pesticide in or on such (b) * * * food or feed in excess of that authorized (4) The term uncertified person means § 172.4 Applications. under section 408 of the Federal Food, any person who is not holding a * * * * * Drug and Cosmetic Act; and currently valid certification document (b) * * * * * * * * indicating that he is certified under (2) * * * ■ 66. Section 172.26 is amended by section 11 of FIFRA in the category of (i) Submit evidence that a tolerance or revising paragraph (c)(1)(iii) to read as the restricted use pesticide made exemption from the requirement of a follows: available for use. tolerance has been established for * * * * * residues of the pesticide in or on such § 172.26 EPA review of permits. food or feed under section 408 of the * * * * * PART 172—[AMENDED] Federal Food, Drug, and Cosmetic Act; (c) * * * or (1) * * * ■ 60. The authority citation for part 172 (ii) Submit a petition proposing (iii) That new evidence demonstrates continues to read as follows: establishment of a tolerance or an that any tolerance upon which the exemption from the requirement of a permit is based will be inadequate to Authority: 7 U.S.C. 136c, 136w. Section tolerance under section 408 of the 172.4 is also issued under 31 U.S.C. 9701. protect the public health, or that any Federal Food, Drug, and Cosmetic Act; exemption from the requirement for a ■ 61. Section 172.1 is revised to read as or tolerance is no longer appropriate; or follows * * * * * * * * * *

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§ 172.46 [Amended] § 180.34 Tests on the amount of residue final rulemaking actions which are remaining. ■ 67. In the introductory text to available at www.regulations.gov and § 172.46(c), revise ‘‘161.31’’ to read * * * * * also in the Federal Register at 73 FR ‘‘161.32.’’. (e) Each of the following groups of 60955 and 73 FR 60996. crops lists raw agricultural commodities PART 180—[AMENDED] that are considered to be related for the Need for Correction purpose of paragraph (d) of this section. As published, the regulatory text in ■ Commodities not listed in this 68. The authority citation for part 180 the direct final regulation contains a continues to read as follows: paragraph are not considered to be minor error that, if not corrected, Authority: 21 U.S.C. 321(q), 346a and 371. related for the purpose of paragraph (d) of this section. prevents publication of the regulatory amendment in the Code of Federal ■ 69. Part 180 is amended as follows: * * * * * Regulations. EPA finds that there is ■ a. By revising the part heading to read [FR Doc. E8–29375 Filed 12–11–08; 8:45 am] ‘‘Tolerances and Exemptions for good cause to make this correction Pesticide Chemical Residues in Food.’’ BILLING CODE 6560–50–S without providing for notice and ■ b. By removing the center heading that comment because neither notice nor immediately follows the Subpart A comment is necessary and would not be ENVIRONMENTAL PROTECTION in the public interest due to the nature heading. AGENCY ■ c. Removing the center heading that of the correction which is minor, immediately follows the Subpart B 40 CFR Part 52 technical and does not change the heading. obligations already existing in the rule. [EPA–R10–OAR–2008–0166; FRL–8750–2] ■ d. By removing the two center EPA finds that the corrections are merely correcting the numbering in the headings that immediately Approval and Promulgation of precede§ 180.29. Implementation Plans; Alaska; amendatory language so that the provision may be published in the Code ■ 70. Section 180.7 is amended by Interstate Transport of Pollution revising the last sentence in paragraph of Federal Regulations. AGENCY: Environmental Protection (b)(1), the last sentence in paragraph (d) Agency (EPA). Corrections of Publication and by revising the next to the last sentence in paragraph (f) to read as ACTION: Correcting amendment. In the regulatory text to the direct final rule for ‘‘Approval and follows: SUMMARY: EPA issued a direct final rule on October 15, 2008, entitled ‘‘Approval Promulgation of Implementation Plans; § 180.7 Petitions proposing tolerances or Alaska; Interstate Transport of exemptions for pesticide residues in or on and Promulgation of Implementation raw agricultural commodities or processed Plans; Alaska; Interstate Transport of Pollution,’’ October 15, 2008, 73 FR foods. Pollution.’’ This document makes a 60955, EPA is correcting an inadvertent * * * * * minor correction to the October 15, minor error in instruction number 2. (b) * * * 2008, action to correct a typographical Instruction number 2 reads ‘‘Section (1) * * * The electronic copy should error in the regulatory text for the rule. 52.97 is added to read as follows:’’, but be formatted according to the Office of DATES: Effective Date: This document is in the actual text just below that Pesticide Programs’ current standard for effective on December 15, 2008. statement the added section is electronic data submission as specified FOR FURTHER INFORMATION CONTACT: For designated inadvertently as ‘‘Section at http://www.epa.gov/pesticides/ questions regarding this correction, 52.70.’’ EPA is correcting this regulating/registering/submissions/ contact Donna Deneen, Office of Air, inadvertent minor error so that the index.htm. Waste, and Toxics, Mail Code (AWT– amendatory instruction number 2 * * * * * 107), Environmental Protection Agency continues to read ‘‘Section 52.97 is (d) * * * The Administrator shall Region 10, Seattle, WA 98121; added to read as follows:’’, but the make the full text of the summary telephone number: (206) 553–6706; fax actual text just below that statement referenced in paragraph (b)(1) of this number: (206) 553–0110; e-mail address: ‘‘§ 52.70’’ is changed to read ‘‘§ 52.97.’’ [email protected]. section available to the public in the § 52.97 [Corrected] public docket at http:// SUPPLEMENTARY INFORMATION: In FR Doc. E8–24279 published www.regulations.gov no later than Background publication in the Federal Register of October 15, 2008 (73 FR 60955), make the notice of the petition filing. The EPA issued ‘‘Approval and the following correction. On page Promulgation of Implementation Plans; * * * * * 60957, in the center column, the section Alaska; Interstate Transport of (f) * * * The notice shall explicitly heading following amendatory Pollution’’ as a direct final rule on reference the specific docket instruction 2 is corrected to read as October 15, 2008, 73 FR 60955. This identification number in the public follows: direct final rule approved the State of docket at http://www.regulations.gov Alaska’s demonstration that its § 52.97 Interstate Transport for the 1997 where the full text of the summary emissions do not significantly 8-hour ozone and PM2.5 NAAQS. required in paragraph (b) of this section contribute to nonattainment or interfere is located, and refer interested parties to * * * * * with maintenance of the NAAQS in this document for further information another state, or interfere with measures Dated: December 3, 2008. on the petition.* * * required to be included in the SIP for Elin D. Miller, * * * * * any other State to prevent significant Regional Administrator, Region 10. ■ 71. Section 180.34 is amended by deterioration of air quality or to protect [FR Doc. E8–29231 Filed 12–11–08; 8:45 am] revising the introductory text of visibility. For more information about BILLING CODE 6560–50–P paragraph (e) to read as follows: this action, please see the proposed and

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ENVIRONMENTAL PROTECTION producer, food manufacturer, or may be disclosed publicly by EPA AGENCY pesticide manufacturer. Potentially without prior notice. Submit this copy, affected entities may include, but are identified by docket ID number EPA– 40 CFR Part 180 not limited to those engaged in the HQ–OPP–2008–0567, by one of the [EPA–HQ–OPP–2008–0567; FRL–8390–9] following activities: following methods: • Crop production (NAICS code 111). • Federal eRulemaking Portal: http:// Etofenprox; Pesticide Tolerance • Animal production (NAICS code www.regulations.gov. Follow the on-line 112). instructions for submitting comments. AGENCY: Environmental Protection • Food manufacturing (NAICS code • Mail: Office of Pesticide Programs Agency (EPA). 311). (OPP) Regulatory Public Docket (7502P), ACTION: Final rule. • Pesticide manufacturing (NAICS Environmental Protection Agency, 1200 code 32532). Pennsylvania Ave., NW., Washington, SUMMARY: This regulation establishes a This listing is not intended to be DC 20460–0001. tolerance for residues of etofenprox (2- exhaustive, but rather to provide a guide • Delivery: OPP Regulatory Public (4-ethoxyphenyl)-2-methylpropyl 3- for readers regarding entities likely to be Docket (7502P), Environmental phenoxybenzyl ether) in or on rice, affected by this action. Other types of Protection Agency, Rm. S–4400, One grain. Mitsui Chemical, Inc. requested entities not listed in this unit could also Potomac Yard (South Bldg.), 2777 S. this tolerance under the Federal Food, be affected. The North American Crystal Dr., Arlington, VA. Deliveries Drug, and Cosmetic Act (FFDCA). Industrial Classification System are only accepted during the Docket DATES: This regulation is effective (NAICS) codes have been provided to Facility’s normal hours of operation December 12, 2008. Objections and assist you and others in determining (8:30 a.m. to 4 p.m., Monday through requests for hearings must be received whether this action might apply to Friday, excluding legal holidays). on or before February 10, 2009, and certain entities. If you have any Special arrangements should be made must be filed in accordance with the questions regarding the applicability of for deliveries of boxed information. The instructions provided in 40 CFR part this action to a particular entity, consult Docket Facility telephone number is 178 (see also Unit I.C. of the the person listed under FOR FURTHER (703) 305–5805. SUPPLEMENTARY INFORMATION). INFORMATION CONTACT. ADDRESSES: EPA has established a II. Petition for Tolerance docket for this action under docket B. How Can I Access Electronic Copies In the Federal Register of August 13, identification (ID) number EPA–HQ– of this Document? 2008 (73 FR 47185) (FRL– 8376–8), EPA OPP–2008–0567. All documents in the In addition to accessing electronically issued a notice pursuant to section docket are listed in the docket index available documents at http:// 408(d)(3) of FFDCA, 21 U.S.C. available at http://www.regulations.gov. www.regulations.gov, you may access 346a(d)(3), announcing the filing of a Although listed in the index, some this Federal Register document pesticide petition (PP 7F7215) by Mitsui information is not publicly available, electronically through the EPA Internet Chemicals, Inc., Shiodome City Center, e.g., Confidential Business Information under the ‘‘Federal Register’’ listings at 1–5–2, Higashi-Shimbashi, Minato-ku, (CBI) or other information whose http://www.epa.gov/fedrgstr. You may Tokyo, Japan 105–7117 c/o Landis disclosure is restricted by statute. also access a frequently updated International, Inc. P.O. Box 5126, 3185 Certain other material, such as electronic version of EPA’s tolerance Madison Highway, Valdosta, GA 31603– copyrighted material, is not placed on regulations at 40 CFR part 180 through 5126 USA. The petition requested that the Internet and will be publicly the Government Printing Office’s e-CFR 40 CFR 180.620 be amended by available only in hard copy form. site at http://www.gpoaccess.gov/ecfr. establishing tolerances for combined Publicly available docket materials are residues or residues of the insecticide C. Can I File an Objection or Hearing available in the electronic docket at etofenprox and the metabolite 2-(4- Request? http://www.regulations.gov, or, if only ethyoxyphenyl)-2-methylpropyl 3- available in hard copy, at the OPP Under section 408(g) of FFDCA, 21 phenoxybenzoate, in or on rice, grain at Regulatory Public Docket in Rm. S– U.S.C. 346a, any person may file an 0.01 parts per million (ppm) and rice, 4400, One Potomac Yard (South Bldg.), objection to any aspect of this regulation straw at 0.06 ppm. That notice 2777 S. Crystal Dr., Arlington, VA. The and may also request a hearing on those referenced a summary of the petition Docket Facility is open from 8:30 a.m. objections. You must file your objection prepared by Mitsui Chemicals, Inc., the to 4 p.m., Monday through Friday, or request a hearing on this regulation registrant, which is available to the excluding legal holidays. The Docket in accordance with the instructions public in the docket, http:// Facility telephone number is (703) 305– provided in 40 CFR part 178. To ensure www.regulations.gov. There were no 5805. proper receipt by EPA, you must comments received in response to the FOR FURTHER INFORMATION CONTACT: identify docket ID number EPA–HQ– notice of filing. Kevin Sweeney, Registration Division OPP–2008–0567. in the subject line on Based upon review of the data (7505P), Office of Pesticide Programs, the first page of your submission. All supporting the petition, EPA has Environmental Protection Agency, 1200 requests must be in writing, and must be modified the tolerance expression to Pennsylvania Ave., NW., Washington, mailed or delivered to the Hearing Clerk include only residues of etofenprox per DC 20460–0001; telephone number: as required by 40 CFR part 178 on or se in or on rice grain of 0.01 ppm. EPA (703) 305–5063; e-mail address: before February 10, 2009. has also concluded that a etofenprox [email protected]. In addition to filing an objection or tolerance for rice straw is unnecessary. hearing request with the Hearing Clerk The reason for these changes is SUPPLEMENTARY INFORMATION: as described in 40 CFR part 178, please explained in Unit IV.C. I. General Information submit a copy of the filing that does not contain any CBI for inclusion in the III. Aggregate Risk Assessment and A. Does this Action Apply to Me? public docket that is described in Determination of Safety You may be potentially affected by ADDRESSES. Information not marked Section 408(b)(2)(A)(i) of FFDCA this action if you are an agricultural confidential pursuant to 40 CFR part 2 allows EPA to establish a tolerance (the

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legal limit for a pesticide chemical the rat, did show some evidence of extrapolation from laboratory animal residue in or on a food) only if EPA neurotoxic effects as is expected of a data to humans and in the variations in determines that the tolerance is ‘‘safe.’’ neurotoxicant but these effects were sensitivity among members of the Section 408(b)(2)(A)(ii) of FFDCA unremarkable. human population as well as other defines ‘‘safe’’ to mean that ‘‘there is a The most sensitive target organs in the unknowns. Safety is assessed for acute reasonable certainty that no harm will toxicology database are the thyroid and and chronic dietary risks by comparing result from aggregate exposure to the liver. The kidney is also a common aggregate food and water exposure to pesticide chemical residue, including target organ of toxicity. There is no the pesticide to the acute population all anticipated dietary exposures and all evidence of carcinogenicity and adjusted dose (aPAD) and chronic other exposures for which there is etofenprox is classified as ‘‘Not likely to population adjusted dose (cPAD). The reliable information.’’ This includes be carcinogenic to humans at doses that aPAD and cPAD are calculated by exposure through drinking water and in do not alter rat thyroid hormone dividing the POD by all applicable UFs. residential settings, but does not include homeostasis’’ and, therefore, no Aggregate short-term, intermediate-term, occupational exposure. Section quantitative cancer risk assessment is and chronic-term risks are evaluated by 408(b)(2)(C) of FFDCA requires EPA to required. There is no indication of comparing food, water, and residential give special consideration to exposure increased quantitative or qualitative exposure to the POD to ensure that the of infants and children to the pesticide susceptibility of the developing margin of exposure (MOE) called for by chemical residue in establishing a offspring in toxicology database for the product of all applicable UFs is not tolerance and to ‘‘ensure that there is a etofenprox. Developmental effects were exceeded. This latter value is referred to reasonable certainty that no harm will seen at doses that caused maternal as the Level of Concern (LOC). result to infants and children from toxicity. There was no evidence of For non-threshold risks, the Agency aggregate exposure to the pesticide reproductive effects in the 2–generation assumes that any amount of exposure chemical residue....’’ reproduction study in rats. Etofenprox will lead to some degree of risk. Thus, Consistent with section 408(b)(2)(D) was negative for mutagenic/genotoxic the Agency estimates risk in terms of the of FFDCA, and the factors specified in potential based on the results of probability of an occurrence of the section 408(b)(2)(D) of FFDCA, EPA has mutagenicity studies. There is no adverse effect greater than that expected reviewed the available scientific data evidence of immunotoxicity in the in a lifetime. For more information on and other relevant information in database. Immunotoxicity studies are a the general principles EPA uses in risk support of this action. EPA has new data requirement and are required characterization and a complete sufficient data to assess the hazards of as a condition of registration. The description of the risk assessment and to make a determination on toxicology database for etofenprox is process, see http://www.epa.gov/ aggregate exposure for the petitioned-for sufficient to assess human health pesticides/factsheets/riskassess.htm. tolerances for residues of etofenprox in hazards and the Point of Departure A summary of the toxicological or on rice, grain at 0.01 ppm. EPA’s (POD) selected for deriving the chronic endpoints for etofenprox used for assessment of exposures and risks reference dose will adequately account human risk assessment can be found at associated with establishing tolerances for all chronic effects determined to http://www.regulations.gov in document follows. result from exposure to etofenprox in Etofenprox: Human Health Risk chronic animal studies, including A. Toxicological Profile Assessment for Proposed Section 3 Uses potential immunotoxicity effects. on Rice and as ULV Mosquito EPA has evaluated the available Specific information on the studies Adulticide, at pages 30–31 in docket ID toxicity data and considered its validity, received and the nature of the adverse number EPA–HQ–OPP–2008–0567. completeness, and reliability as well as effects caused by etofenprox, as well as the relationship of the results of the the no-observed-adverse-effect-level C. Exposure Assessment studies to human risk. EPA has also (NOAEL) and the lowest-observed- 1. Dietary exposure from food and considered available information adverse-effect-level (LOAEL) from the feed uses. EPA assessed dietary concerning the variability of the toxicity studies, can be found at http:// exposure to etofenprox, the EPA sensitivities of major identifiable www.regulations.gov in document considered exposure under the subgroups of consumers, including Etofenprox: Human Health Risk petitioned for tolerance on rice, grain; infants and children. Assessment for Proposed Section 3 Uses the first food use of etofenprox. EPA Etofenprox has low acute toxicity on Rice and as ULV Mosquito assessed dietary exposures from from the oral, dermal, and inhalation Adulticide, at pages 14–29 in docket ID etofenprox in food as follows: routes of exposure. It is not an acute eye number EPA–HQ–OPP–2008–0567. i. Acute exposure. Quantitative acute or skin irritant and is not a dermal dietary exposure and risk assessments B. Toxicological Endpoints sensitizer; however, etofenprox does are performed for a food-use pesticide, cause skin irritation after repeated For hazards that have a threshold if a toxicological study has indicated the exposure. The major target organs of below which there is no appreciable possibility of an effect of concern etofenprox are the liver, thyroid, kidney, risk, a toxicological POD is identified as occurring as a result of a 1–day or single and hematopoietic system. the basis for derivation of reference exposure. Etofenprox was assessed in a values for risk assessment. The POD No such effects were identified in the complete battery of subchronic, chronic, may be defined as the NOAEL in the toxicological studies for etofenprox; carcinogenicity, developmental and toxicology study identified as therefore, a quantitative acute dietary reproductive studies as well as acute, appropriate for use in risk assessment. exposure assessment is unnecessary. subchronic, and developmental However, if a NOAEL cannot be ii. Chronic exposure. In conducting neurotoxicity studies. Etofenprox is determined, LOAEL or a Benchmark the chronic dietary exposure assessment classified as a synthetic pyrethroid ether Dose (BMD) approach is sometimes EPA used the food consumption data insecticide and has an excitatory used for risk assessment. Uncertainty/ from the USDA 1994–1996, 1998 CSFII. neurotoxic mode of action. safety factors (UFs) are used in As to residue levels in food, EPA Neurotoxicity studies, including a conjunction with the POD to take into assumed that all rice grain contained developmental neurotoxicity study in account uncertainties inherent in the tolerance level residues of etofenprox

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and that 100 percent of the rice crop non-cancer assessments are estimated to substances that have a common was treated with etofenprox. be 0.88 (parts per billion (ppb) for mechanism of toxicity.’’ iii. Cancer. EPA classified etofenprox surface water and 1.55 x 10–3 ppb for Etofenprox is classified as a synthetic as ‘‘Not likely to be carcinogenic to ground water. Acute exposure (single pyrethroid ether insecticide and is a humans at doses that do not alter rat dose or 1–day exposure) effects were not member of the pyrethroid class of thyroid hormone homeostasis.’’ An identified in the toxicological studies pesticides. EPA is not currently increased incidence of thyroid follicular for etofenprox; therefore, a quantitative following a cumulative risk approach adenomas and/or carcinomas was seen acute drinking water assessment is based on a common mechanism of in males and females administered unnecessary. toxicity for the pyrethroids. Although etofenprox in their diet at 4,900 ppm, a Modeled estimates of drinking water all pyrethroids alter nerve function by dose that was considered adequate to concentrations were directly entered modifying the normal biochemistry and assess potential for carcinogenicity. No into the dietary exposure model. For physiology of nerve membrane sodium treatment-related tumors were seen in chronic dietary risk assessment, the channels, available data show that there male or female mice when tested at a water concentration of value 0.88 ppb are multiple types of sodium channels dose that was considered adequate to was used to assess the contribution to and it is currently unknown whether the assess carcinogenicity. The non- drinking water. pyrethroids as a class have similar neoplastic toxicological evidence (i.e. 3. From non-dietary exposure. The effects on all channels or whether thyroid growth, thyroid hormonal term ‘‘residential exposure’’ is used in modifications of different types of changes) indicated that etofenprox was this document to refer to non- sodium channels would have a inducing a disruption in the thyroid- occupational, non-dietary exposure cumulative effect. Nor do we have a pituitary hormonal status. Rats are (e.g., for lawn and garden pest control, clear understanding of effects on key substantially more sensitive to humans indoor pest control, termiticides, and downstream neuronal function, e.g., to the development of thyroid follicular flea and tick control on pets). nerve excitability, or how these key cell tumors in response to thyroid Etofenprox is currently registered for the events interact to produce their compound specific patterns of hormone imbalance. There was no following uses that could result in mutagenicity concern for etofenprox neurotoxicity. Without such residential exposures: Indoor and from in vivo or in vitro assays. The understanding, there is no basis to make outdoor (yard patio) use as an insect overall weight-of-evidence was a common mechanism of toxicity fogger, indoor/outdoor crack and considered sufficient to indicate that finding. There is ongoing research by crevice/spot treatment; as a cat and dog etofenprox induces thyroid follicular the EPA’s Office of Research and spot-on treatment; and outdoors as a tumors through an anti-thyroid mode of Development and pyrethroid registrants wide-area mosquito adulticide. EPA action. The Agency has determined that to evaluate the differential biochemical assessed residential exposure using the quantification of human cancer risk is and physiological actions of pyrethroids following assumptions: Adults are not appropriate because the chronic in mammals. When available, the potentially exposed to etofenprox reference dose is protective against the Agency will evaluate results of this chronic effects determined to result residues during residential application research and make a determination of from exposure to etofenprox, including of etofenprox. Both adults and children common mechanism as a basis for potential cancer effects. are potentially exposed to etofenprox assessing cumulative risk. For iv. Anticipated residue and percent residues after application (post- information regarding EPA’s procedures crop treated (PCT) information. EPA did application) of etofenprox products in for cumulating effects from substances not use anticipated residue and/or PCT residential settings. Exposure estimates found to have a common mechanism on information in the dietary assessment were generated for residential handlers EPA’s website at http://www.epa.gov/ for etofenprox. Tolerance level residues and individuals with potential post- pesticides/cumulative/. and/or 100 PCT were assumed for all application contact with lawn, soil, food commodities. treated indoor surfaces, and treated pets D. Safety Factor for Infants and 2. Dietary exposure from drinking using the EPA’s Draft Standard Children water. The Agency used screening level Operating Procedures (SOPs) for 1. In general. Section 408(b)(2)(c) of water exposure models in the dietary Residential Exposure Assessment, and FFDCA provides that EPA shall apply exposure analysis and risk assessment dissipation or transfer data from a turf an additional tenfold (10X) margin of for etofenprox in drinking water. These transferable residue (TTR) study and a safety for infants and children in the simulation models take into account pet transferrable residue study. Short- case of threshold effects to account for data on the physical, chemical, and fate/ term and intermediate-term inhalation prenatal and postnatal toxicity and the transport characteristics of etofenprox. exposures for adults, and short-term and completeness of the database on toxicity Further information regarding EPA intermediate-term incidental oral and and exposure unless EPA determines drinking water models used in pesticide inhalation exposures for children are based on reliable data that a different exposure assessment can be found at anticipated. These estimates are margin of safety will be safe for infants http://www.epa.gov/oppefed1/models/ considered conservative, but and children. This additional margin of water/index.htm. appropriate, since the study data were safety is commonly referred to as the Based on the Tier I Rice Model and generated at maximum application FQPA safety factor (SF). In applying this Screening Concentration in Ground rates. provision, EPA either retains the default Water (SCI–GROW) models, the 4. Cumulative effects from substances value of 10X, or uses a different estimated drinking water concentrations with a common mechanism of toxicity. additional safety factor when reliable (EDWCs) of etofenprox for chronic Section 408(b)(2)(D)(v) of FFDCA data available to EPA support the choice exposure were calculated based on a requires that, when considering whether of a different factor. maximum application rate of 0.27 to establish, modify, or revoke a 2. Prenatal and postnatal sensitivity. pound (lb) active ingredient (ai)/ tolerance, the Agency consider The prenatal and postnatal toxicology acre(A)/year. The estimated drinking ‘‘available information’’ concerning the database includes a developmental water concentrations (EDWCs) of cumulative effects of a particular toxicity studies in rabbits and rats; a 2– etofenprox for chronic exposures for pesticide’s residues and ‘‘other generation reproduction studies in the

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rat; and a developmental (DNT) E. Aggregate Risks and Determination of residential exposures aggregated result neurotoxicity study in the rat. There Safety in aggregate MOEs of 1,200 for adults was no evidence of increased EPA determines whether acute and and 170 for toddlers. For adults, the quantitative or qualitative susceptibility chronic pesticide exposures are safe by short-term/ intermediate-term aggregate following in-utero and/or postnatal comparing aggregate exposure estimates risks combined food and drinking water exposure in the development toxicity to the aPAD and cPAD. The aPAD and exposure with short-term/intermediate studies in rats or rabbits, or in the 2– cPAD represent the highest safe term inhalation exposure. For toddler generation rat reproduction study. exposures, taking into account all short-term and intermediate-term 3. Conclusion. EPA has determined appropriate SFs. EPA calculates the aggregate risks, the average food and that reliable data show the safety of aPAD and cPAD by dividing the POD by drinking water exposure was combined infants and children would be all applicable UFs. For linear cancer with toddler incidental oral exposures adequately protected if the FQPA SF risks, EPA calculates the probability of following pet treatments and indoor were reduced to 1X. That decision is additional cancer cases given the fogger applications, and inhalation based on the following findings: estimated aggregate exposure. Short- exposure following indoor fogger i. The toxicity database for etofenprox term, intermediate-term, and chronic- applications. is complete, except for immunotoxicity term risks are evaluated by comparing 4. Aggregate cancer risk for U.S. testing. Immunotoxicity studies are a the estimated aggregate food, water, and population. The Agency has classified new data requirement and EPA has residential exposure to the POD to etofenprox as ‘‘Not likely to be determined that an additional ensure that the MOE called for by the carcinogenic to humans at doses that do uncertainty factor is not required to product of all applicable UFs is not not alter thyroid hormone homeostasis.’’ account for potential immunotoxicity. exceeded. The chronic reference dose will is The reasons for this determination are 1. Acute risk. An acute aggregate risk protective of chronic effects determined explained as follows: assessment takes into account exposure to result from exposure to etofenprox, including potential cancer effects. EPA began requiring functional estimates from acute dietary 5. Determination of safety. Based on immunotoxicity testing of all food and consumption of food and drinking these risk assessments, EPA concludes non-food use pesticides on December water. No adverse effect resulting from that there is a reasonable certainty that 26, 2007. Since this requirement went a single-oral exposure was identified no harm will result to the general into effect after the tolerance petition and no acute dietary endpoint was population, or to infants and children was submitted, these studies are not yet selected. Therefore, etofenprox is not from aggregate exposure to etofenprox available for etofenprox. Due to the lack expected to pose an acute risk. residues. of evidence of immunotoxicity for 2. Chronic risk. Using the exposure etofenprox, EPA does not believe that assumptions described in this unit for IV. Other Considerations conducting immunotoxicity testing will chronic exposure, EPA has concluded A. Analytical Enforcement Methodology result in a NOAEL less than the NOAEL that chronic exposure to etofenprox of 3.7 milligram/kilogram/day (mg/kg/ from food and water will utilize < 1% Adequate enforcement methodology day), which is already established as the of the cPAD for the general U.S. (Liquid Chromatographic Mass cRfD point of departure for etofenprox. population and all population Spectrometric (LC/MS/MS) method) is An additional factor (UFDB) for subgroups. Based on the explanation in available to enforce the tolerance database uncertainties is not needed to Unit III.C.3., regarding residential use expression. The method may be account for potential immunotoxicity. patterns, chronic residential exposure to requested from: Chief, Analytical ii. There is no evidence that residues of etofenprox is not expected. Chemistry Branch, Environmental etofenprox results in increased 3. Short-term-/Intermediate-term risk. Science Center, 701 Mapes Rd., Ft. susceptibility in in utero rats or rabbits Short-term or intermediate-term Meade, MD 20755–5350; telephone in the prenatal developmental studies or aggregate exposure takes into account number: (410) 305–2905; e-mail address: in young rats in the 2–generation short-term or intermediate-term [email protected]. reproduction study. residential exposure plus chronic exposure from food and water B. International Residue Limits iii. There are no residual uncertainties (considered to be a background The Codex Alimentarius Commission identified in the exposure databases for exposure level). (CODEX) has established maximum the following reasons: • Etofenprox is currently registered for residue levels (MRLs) for the residue of The chronic dietary food exposure uses that could result in short-term and etofenprox per se in or on pome fruits assessment utilizes proposed tolerance intermediate-term residential exposure at 1 mg/kg and potato at 0.01 mg/kg. level residues and 100 PCT information and the Agency has determined that it Currently, there are no CODEX MRLs for for all commodities. By using these is appropriate to aggregate chronic rice commodities. Etofenprox is screening level assessments, actual exposure through food and water with scheduled for periodic re-evaluation by exposures/risk will not be short-term and intermediate-term CODEX in 2012. As discussed in this underestimated; residential exposures to etofenprox. unit, EPA has adopted a tolerance • EPA made conservative (protective) Since the doses and endpoints selected expression for etofenprox which should assumptions in the ground and surface for etofenprox to assess short-term and make the rice tolerances compatible water modeling used to assess exposure intermediate-term exposure are with proposed CODEX MRLs for rice to etofenprox in drinking water. identical, the short-term and commodities. • EPA used similarly conservative intermediate-term risk estimates for assumptions to assess post-application etofenprox are the same. C. Revisions to Petitioned-For exposure of children as well as Using the exposure assumptions Tolerances incidental oral exposure of toddlers. described in this unit for short-term and The petitioner proposed tolerances for These assessments will not intermediate-term exposures, EPA has combined residues or residues of the underestimate the exposure and risks concluded the combined short-term and insecticide etofenprox and the posed by etofenprox. intermediate-term food, water, and metabolite 2-(4-ethyoxyphenyl)-2-

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methylpropyl 3-phenoxybenzoate, in or the tolerance in this final rule, do not Dated: December 4, 2008. on rice, grain at 0.01 ppm and rice, require the issuance of a proposed rule, Debra Edwards, straw at 0.06 ppm. Although EPA has the requirements of the Regulatory Director, Office of Pesticide Programs. included the metabolite 2-(4- Flexibility Act (RFA) (5 U.S.C. 601 et ■ Therefore, 40 CFR chapter I is ethyoxyphenyl)-2-methylpropyl 3- seq.) do not apply. amended as follows: phenoxybenzoate in its assessment of This final rule directly regulates exposure and risk for etofenprox, EPA growers, food processors, food handlers, PART 180—[AMENDED] has decided to exclude the metabolite and food retailers, not States or tribes, ■ from the tolerance expression because nor does this action alter the 1. The authority citation for part 180 the metabolism and residue studies relationships or distribution of power continues to read as follows: show that the parent compound will and responsibilities established by Authority: 21 U.S.C. 321(q), 346a and 371. serve as a better indicator of potential Congress in the preemption provisions ■ 2. Section 180.620 is amended by misuse. Limiting the tolerance of section 408(n)(4) of FFDCA. As such, revising pargraph (a) to read as follows: expression to the parent only also the Agency has determined that this allows for harmonization with the action will not have a substantial direct § 180.620 Etofenprox; tolerance for proposed Codex MRLs. EPA has effect on States or tribal governments, residues. determined that rice, straw is not a on the relationship between the national (a) General. A tolerance is established significant feedstuff; therefore, a government and the States or tribal for residues of the insecticide tolerance for residues of etofenprox per governments, or on the distribution of etofenprox [2-(4-ethoxyphenyl)-2- se in/on rice straw is not needed. The power and responsibilities among the methylpropyl 3-phenoxybenzyl ether] in tolerance has been revised to reflect the various levels of government or between or on the following raw agricultural correct commodity definition, ‘‘rice, the Federal Government and Indian commodity: grain’’ and the proposed tolerance tribes. Thus, the Agency has determined expression has been revised to residues that Executive Order 13132, entitled Commodity Parts per million of etofenprox per se in or on rice, grain Federalism (64 FR 43255, August 10, Rice, grain ...... 0.01 of 0.01 ppm. 1999) and Executive Order 13175, entitled Consultation and Coordination V. Conclusion * * * * * with Indian Tribal Governments (65 FR Therefore, a tolerance is established 67249, November 9, 2000) do not apply [FR Doc. E8–29346 Filed 12–11–08; 8:45 am] for residues of etofenprox, (2-(4- to this final rule. In addition, this final BILLING CODE 6560–50–S ethoxyphenyl)-2-methylpropyl 3- rule does not impose any enforceable phenoxybenzyl ether), in or on rice, duty or contain any unfunded mandate grain at 0.01 ppm. ENVIRONMENTAL PROTECTION as described under Title II of the AGENCY VI. Statutory and Executive Order Unfunded Mandates Reform Act of 1995 Reviews (UMRA) (Public Law 104–4). 40 CFR Part 180 This final rule establishes tolerances This action does not involve any [EPA–HQ–OPP–2008–0217; FRL–8393–1] under section 408(d) of FFDCA in technical standards that would require Agency consideration of voluntary response to a petition submitted to the Isoxaflutole; Pesticide Tolerances Agency. The Office of Management and consensus standards pursuant to section Budget (OMB) has exempted these types 12(d) of the National Technology AGENCY: Environmental Protection of actions from review under Executive Transfer and Advancement Act of 1995 Agency (EPA). Order 12866, entitled Regulatory (NTTAA), Public Law 104–113, section ACTION: Final rule. Planning and Review (58 FR 51735, 12(d) (15 U.S.C. 272 note). SUMMARY: This regulation amends the October 4, 1993). Because this final rule VII. Congressional Review Act has been exempted from review under pesticide tolerance for isoxaflutole by Executive Order 12866, this final rule is The Congressional Review Act, 5 removing isoxaflutole’s benzoic acid not subject to Executive Order 13211, U.S.C. 801 et seq., generally provides metabolite (RPA 203328) from the entitled Actions Concerning Regulations that before a rule may take effect, the established tolerance expression and That Significantly Affect Energy Supply, agency promulgating the rule must revising downward tolerance levels for Distribution, or Use (66 FR 28355, May submit a rule report to each House of isoxaflutole in or on field corn. Bayer 22, 2001) or Executive Order 13045, the Congress and to the Comptroller CropScience requested these tolerances entitled Protection of Children from General of the United States. EPA will under the Federal Food, Drug, and Environmental Health Risks and Safety submit a report containing this rule and Cosmetic Act (FFDCA). Risks (62 FR 19885, April 23, 1997). other required information to the U.S. DATES: This regulation is effective This final rule does not contain any Senate, the U.S. House of December 12, 2008. Objections and information collections subject to OMB Representatives, and the Comptroller requests for hearings must be received approval under the Paperwork General of the United States prior to on or before February 10, 2009, and Reduction Act (PRA), 44 U.S.C. 3501 et publication of this final rule in the must be filed in accordance with the seq., nor does it require any special Federal Register. This final rule is not instructions provided in 40 CFR part considerations under Executive Order a ‘‘major rule’’ as defined by 5 U.S.C. 178 (see also Unit I.C. of the 12898, entitled Federal Actions to 804(2). SUPPLEMENTARY INFORMATION). Address Environmental Justice in ADDRESSES: EPA has established a 40 CFR Part 180 Minority Populations and Low-Income docket for this action under docket Populations (59 FR 7629, February 16, Environmental protection, identification (ID) number EPA–HQ– 1994). Administrative practice and procedure, OPP–2008–0217. All documents in the Since tolerances and exemptions that Agricultural commodities, Pesticides docket are listed in the docket index are established on the basis of a petition and pests, Reporting and recordkeeping available at http://www.regulations.gov. under section 408(d) of FFDCA, such as requirements. Although listed in the index, some

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information is not publicly available, electronically through the EPA Internet pesticide petition (PP 8F7328) by Bayer e.g., Confidential Business Information under the ‘‘Federal Register’’ listings at CropScience, 2 T.W. Alexander Drive, (CBI) or other information whose http://www.epa.gov/fedrgstr. You may Research Triangle Park, NC 27709. The disclosure is restricted by statute. also access a frequently updated petition requested that the tolerance for Certain other material, such as electronic version of EPA’s tolerance isoxaflutole at 40 CFR 180.537 be copyrighted material, is not placed on regulations at 40 CFR part 180 through amended by removing the benzoic acid the Internet and will be publicly the Government Printing Office’s pilot metabolite (RPA 203328) from the available only in hard copy form. e-CFR site at http://www.gpoaccess.gov/ established tolerance expression and Publicly available docket materials are ecfr. revising downward the tolerance levels available in the electronic docket at C. Can I File an Objection or Hearing for the following raw agricultural http://www.regulations.gov, or, if only Request? commodities: Corn, field, grain; corn, available in hard copy, at the OPP field, forage; and corn, field, stover. The Regulatory Public Docket in Rm. S– Under section 408(g) of FFDCA, 21 proposed level for each of these 4400, One Potomac Yard (South Bldg.), U.S.C. 346a, any person may file an tolerances is 0.02 parts per million 2777 S. Crystal Dr., Arlington, VA. The objection to any aspect of this regulation (ppm). Bayer CropScience requested Docket Facility is open from 8:30 a.m. and may also request a hearing on those that the tolerance for isoxaflutole be to 4 p.m., Monday through Friday, objections. You must file your objection amended based on the results of several excluding legal holidays. The Docket or request a hearing on this regulation toxicology studies submitted for the Facility telephone number is (703) 305– in accordance with the instructions benzoic acid metabolite, demonstrating 5805. provided in 40 CFR part 178. To ensure RPA 203328 is not of toxicological FOR FURTHER INFORMATION CONTACT: proper receipt by EPA, you must concern. That notice referenced a Joanne Miller, Registration Division identify docket ID number EPA–HQ– summary of the petition prepared by (7505P), Office of Pesticide Programs, OPP–2008–217 in the subject line on the Bayer CropScience the registrant, which Environmental Protection Agency, 1200 first page of your submission. All is available to the public in the docket, Pennsylvania Ave., NW., Washington, requests must be in writing, and must be http://www.regulations.gov. There were DC 20460–0001; telephone number: mailed or delivered to the Hearing Clerk no comments received in response to (703) 305–6224; e-mail address: as required by 40 CFR part 178 on or the notice of filing. [email protected]. before February 10, 2009. In addition to filing an objection or Based upon review of the data SUPPLEMENTARY INFORMATION: hearing request with the Hearing Clerk supporting the petition, EPA has revised the proposed tolerance level for the I. General Information as described in 40 CFR part 178, please submit a copy of the filing that does not combined residues of isoxaflutole and A. Does this Action Apply to Me? contain any CBI for inclusion in the its metabolite RPA 202248, calculated as public docket that is described in the parent compound, in or on corn, You may be potentially affected by field, forage from 0.02 ppm to 0.04 ppm. this action if you are an agricultural ADDRESSES. Information not marked confidential pursuant to 40 CFR part 2 Adequate crop field trial data with producer, food manufacturer, or isoxaflutole showed quantifiable pesticide manufacturer. Potentially may be disclosed publicly by EPA without prior notice. Submit this copy, residues of isoxaflutole and RPA 202248 affected entities may include, but are in field corn forage. These residues were not limited to those engaged in the identified by docket ID number EPA– HQ–OPP–2008–217, by one of the found only in samples from a single trial following activities: and no residues were found in field • Crop production (NAICS code 111). following methods: • Animal production (NAICS code • Federal eRulemaking Portal: http:// corn grain or stover in any of the trials. 112). www.regulations.gov. Follow the on-line Because the combined residues of • Food manufacturing (NAICS code instructions for submitting comments. isoxaflutole and RPA 202248 in that 311). • Mail: Office of Pesticide Programs forage sample were at 0.029 ppm, a • Pesticide manufacturing (NAICS (OPP) Regulatory Public Docket (7502P), tolerance of 0.04 ppm is necessary for code 32532). Environmental Protection Agency, 1200 forage. Additionally, in light of the This listing is not intended to be Pennsylvania Ave., NW., Washington, revised, and significantly lower, exhaustive, but rather to provide a guide DC 20460–0001. tolerances for isoxaflutole on field corn for readers regarding entities likely to be • Delivery: OPP Regulatory Public commodities, EPA reassessed the affected by this action. Other types of Docket (7502P), Environmental necessity for tolerances for isoxaflutole entities not listed in this unit could also Protection Agency, Rm. S–4400, One on meat, milk, poultry, and egg be affected. The North American Potomac Yard (South Bldg.), 2777 S. commodities. Meat, milk, poultry, and Industrial Classification System Crystal Dr., Arlington, VA. Deliveries egg tolerances are necessary for a (NAICS) codes have been provided to are only accepted during the Docket pesticide if pesticide residues in such assist you and others in determining Facility’s normal hours of operation commodities are likely following whether this action might apply to (8:30 a.m. to 4 p.m., Monday through consumption by livestock of feed certain entities. If you have any Friday, excluding legal holidays). commodities bearing pesticide residues. questions regarding the applicability of Special arrangements should be made Using the new tolerances and existing this action to a particular entity, consult for deliveries of boxed information. The animal feeding studies with the person listed under FOR FURTHER Docket Facility telephone number is isoxaflutole, EPA determined that there INFORMATION CONTACT. (703) 305–5805. was no reasonable expectation of finite isoxaflutole residues in livestock as the B. How Can I Access Electronic Copies II. Petition for Tolerance maximum residues expected are well of this Document? In the Federal Register of April 16, below the limit of detection of the In addition to accessing electronically 2008 (73 FR 20632) (FRL–8359–1), EPA analytical enforcement method. available documents at http:// issued a notice pursuant to section Accordingly, EPA is revoking the www.regulations.gov, you may access 408(d)(3) of FFDCA, 21 U.S.C. existing isoxaflutole meat, milk, and egg this Federal Register document 346a(d)(3), announcing the filing of a tolerances as unnecessary.

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III. Aggregate Risk Assessment and risk assessment are isoxaflutole and poultry, and eggs from use of Determination of Safety RPA 202248. isoxaflutole on field corn. For these reasons, the 1998 risk assessment is a Section 408(b)(2)(A)(i) of FFDCA B. Safety of Isoxaflutole Tolerances very conservative assessment of the allows EPA to establish a tolerance (the EPA’s last tolerance rulemaking with legal limit for a pesticide chemical potential risk from use of isoxaflutole on regard to isoxaflutole occurred on field corn. Refer to the Federal Register residue in or on a food) only if EPA September 23, 1998. (63 FR 50773) determines that the tolerance is ‘‘safe.’’ of September 23, 1998 (63 FR 50773) (FRL–6029–3). In that action, (FRL–6029–3), available at http:// Section 408(b)(2)(A)(ii) of FFDCA isoxaflutole tolerances were established defines ‘‘safe’’ to mean that ‘‘there is a www.regulations.gov, for a detailed for combined residues of isoxaflutole discussion of the 1998 isoxaflutole reasonable certainty that no harm will and its metabolites RPA 202248 and aggregate risk assessments and result from aggregate exposure to the RPA 203328, calculated as the parent determination of safety. pesticide chemical residue, including compound, in or on the following raw Since the 1998 rulemaking, EPA has all anticipated dietary exposures and all agricultural commodities: Corn, field, received a developmental neurotoxicity other exposures for which there is forage at 1.0 ppm; corn, field, grain at study with isoxaflutole. Although EPA reliable information.’’ This includes 0.20 ppm; and corn, field, stover at 0.50 has required that the study to be redone exposure through drinking water and in ppm. Tolerances were established for due to a lack of morphometric analyses residential settings, but does not include the combined residues of isoxaflutole of the brain, the maternal and offspring occupational exposure. Section and its metabolite RPA 202248, no observed adverse effect levels 408(b)(2)(C) of FFDCA requires EPA to calculated as the parent compound, in (NOAELs) in the study were otherwise give special consideration to exposure or on the following raw agricultural identified as 25 milligram/kiligram/day of infants and children to the pesticide commodities: Cattle, fat at 0.20 ppm; (mg/kg/day). This value is above the chemical residue in establishing a cattle, liver at 0.50 ppm; cattle, meat at Point of Departure (POD) used in tolerance and to ‘‘ensure that there is a 0.20 ppm; cattle, meat byproducts, assessing acute and chronic risk in the reasonable certainty that no harm will except liver at 0.10 ppm; egg at 0.01 1998 risk assessment. There, EPA used result to infants and children from ppm; goat, fat at 0.20 ppm; goat, liver at a lowest observed adverse effect level aggregate exposure to the pesticide 0.50 ppm; goat, meat at 0.20 ppm; goat, (LOAEL) of 5 mg/kg/day as the POD for chemical residue. . . .’’ meat byproducts, except liver at 0.10 acute risks and a NOAEL of 2 mg/kg/day Consistent with section 408(b)(2)(D) ppm; hog, fat at 0.20 ppm; hog, liver at as the POD for chronic risks. Thus, these of FFDCA, and the factors specified in 0.50 ppm; hog, meat at 0.20 ppm; hog, new data do not suggest that section 408(b)(2)(D) of FFDCA, EPA has meat byproducts, except liver at 0.10 isoxaflutole is more toxic than was reviewed the available scientific data ppm; horse, fat at 0.20 ppm; horse, liver assumed in the 1998 assessment. and other relevant information in at 0.50 ppm; horse, meat at 0.20 ppm; Further, it should be noted that in support of this action. EPA has horse, meat byproducts, except liver at assessing isoxaflutole risk, EPA applied sufficient data to assess the hazards of 0.10 ppm; milk at 0.02 ppm; poultry, fat an additional safety factor of 30X for the and to make a determination on at 0.20 ppm; poultry, liver at 0.30 ppm; protection of infants and children in aggregate exposure for the petitioned-for poultry, meat at 0.20 ppm; sheep, fat at addressing acute risks and an additional tolerances for the combined residues of 0.20 ppm; sheep, liver at 0.50 ppm; safety factor of 10X for the protection of isoxaflutole and its metabolite RPA sheep, meat at 0.20 ppm; and sheep, infants and children in addressing 202248, calculated as the parent meat byproducts, except liver at 0.10 chronic risks. These additional safety compound, in or on corn, field, forage ppm. factors were used to address the absence at 0.04 ppm; corn, field, grain at 0.02 In the 1998 tolerance action, EPA of a developmental neurotoxicity study ppm; and corn, field, stover at 0.02 assumed that the residues of concern in and reliance on a LOAEL. In another ppm. EPA’s assessment of exposures field corn were isoxaflutole and its development occurring since the 1998 and risks associated with establishing metabolites RPA 202248 and RPA rulemaking, EPA has noted, in tolerance tolerances follows. 203328. As explained in this unit, rulemakings for several other pesticides however, EPA has now determined that A. Removal of the Benzoic Acid that pesticides such as isoxaflutole only the parent isoxaflutole and the Metabolite RPA 203328 which inhibit the liver enzyme 4- RPA 202248 metabolite pose a risk of hydroxyphenylpyruvate dioxygenase The previous risk assessment concern. Thus, the risk assessment done (HPPD) may operate through a common concluded that RPA 203328 could not in conjunction with the 1998 mechanism of toxicity. To address this be excluded from the risk assessment rulemaking, which showed isoxaflutole issue, EPA has conducted a cumulative and tolerance expression based on a exposure to be safe, greatly overstates screening assessment for these developmental endpoint of parent isoxaflutole exposure in comparison to pesticides and concluded that, even if isoxaflutole until an acceptable rat the revised tolerances. First, as to there is common mechanism for HPPD- developmental toxicity study was exposure through human foods inhibition, cumulative exposure from submitted to the EPA. Additional produced from field corn (e.g., corn these pesticides does not raise a risk toxicity studies have been performed on meal, corn oil), the levels of isoxaflutole concern. Refer to the Federal Register of the metabolite RPA 203328 since the residues of concern in such foods are an February 20, 2008 (73 FR 9221) (FRL– last risk assessment, including an order of magnitude lower than 8344–7). Further cumulative analysis is acceptable developmental toxicity study previously assumed. Second, as to meat, unnecessary for this action because of on RPA 203328. No evidence of milk, poultry, and eggs from livestock EPA’s conclusion that the revised teratogenicity was observed in this consuming isoxaflutole-treated field isoxaflutole tolerances result in study and based on this data EPA corn, EPA has concluded that there is substantially lower isoxaflutole concluded that the developmental no reasonable expectation of combined exposure than previously assumed. toxicity observed with isoxaflutole is residues of isoxaflutole and RPA 202248 Accordingly, taking into account the not due to RPA 203328. EPA thus in such commodities. Accordingly, prior risk assessment for isoxaflutole, determined that the residues of concern there is essentially no human exposure EPA’s revised analysis of the level of for both the tolerance expression and to isoxaflutole residues in meat, milk, human exposure from use of

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isoxaflutole on field corn, the 0.20 ppm; goat, meat byproducts, except power and responsibilities among the developmental neurotoxicity study, and liver at 0.10 ppm; hog, fat at 0.20 ppm; various levels of government or between EPA’s screening analysis of HPPD- hog, liver at 0.50 ppm; hog, meat at 0.20 the Federal Government and Indian inhibiting pesticides, EPA concludes ppm; hog, meat byproducts, except liver tribes. Thus, the Agency has determined that there is a reasonable certainty that at 0.10 ppm; horse, fat at 0.20 ppm; that Executive Order 13132, entitled no harm will result to the general horse, liver at 0.50 ppm; horse, meat at Federalism (64 FR 43255, August 10, population, and to infants and children, 0.20 ppm; horse, meat byproducts, 1999) and Executive Order 13175, from aggregate exposure to isoxaflutole except liver at 0.10 ppm; milk at 0.02 entitled Consultation and Coordination residues. ppm; poultry, fat at 0.20 ppm; poultry, with Indian Tribal Governments (65 FR liver at 0.30 ppm; poultry, meat at 0.20 67249, November 9, 2000) do not apply IV. Other Considerations ppm; sheep, fat at 0.20 ppm; sheep, liver to this final rule. In addition, this final A. Analytical Enforcement Methodology at 0.50 ppm; sheep, meat at 0.20 ppm; rule does not impose any enforceable and sheep, meat byproducts, except A practical analytical method has duty or contain any unfunded mandate liver at 0.10 ppm. been developed for detecting and as described under Title II of the quantifying levels of isoxaflutole and VI. Statutory and Executive Order Unfunded Mandates Reform Act of 1995 RPA 202248 in or on raw agricultural Reviews (UMRA) (Public Law 104–4). This action does not involve any commodities obtained from field corn. This final rule establishes tolerances technical standards that would require This method allows monitoring of these under section 408(d) of FFDCA in Agency consideration of voluntary commodities with residues at or above response to a petition submitted to the consensus standards pursuant to section the levels proposed. Quantification of Agency. The Office of Management and 12(d) of the National Technology analytes as individual components is Budget (OMB) has exempted these types Transfer and Advancement Act of 1995 performed by daughter-ion detection of actions from review under Executive (NTTAA), Public Law 104–113, section using liquid chromatography/mass Order 12866, entitled Regulatory 12(d) (15 U.S.C. 272 note). spectroscopy (LC/MS/MS). The limit of Planning and Review (58 FR 51735, quantification (LOQ) for all analytes is October 4, 1993). Because this final rule VII. Congressional Review Act 0.01 ppm. The proposed analytical has been exempted from review under The Congressional Review Act, 5 enforcement method to determine Executive Order 12866, this final rule is U.S.C. 801 et seq., generally provides isoxaflutole-derived residues in plants not subject to Executive Order 13211, that before a rule may take effect, the has been validated by an independent entitled Actions Concerning Regulations agency promulgating the rule must laboratory. That Significantly Affect Energy Supply, submit a rule report to each House of Adequate enforcement methodology Distribution, or Use (66 FR 28355, May the Congress and to the Comptroller LC/MS/MS is available to enforce the 22, 2001) or Executive Order 13045, General of the United States. EPA will tolerance expression. The method may entitled Protection of Children from submit a report containing this rule and be requested from: Chief, Analytical Environmental Health Risks and Safety other required information to the U.S. Chemistry Branch, Environmental Risks (62 FR 19885, April 23, 1997). Senate, the U.S. House of Science Center, 701 Mapes Rd., Ft. This final rule does not contain any Representatives, and the Comptroller Meade, MD 20755–5350; telephone information collections subject to OMB General of the United States prior to number: (410) 305–2905; e-mail address: approval under the Paperwork publication of this final rule in the [email protected]. Reduction Act (PRA), 44 U.S.C. 3501 et Federal Register. This final rule is not seq., nor does it require any special B. International Residue Limits a ‘‘major rule’’ as defined by 5 U.S.C. considerations under Executive Order 804(2). There are no Codex, Canadian, or 12898, entitled Federal Actions to Mexican maximum residue limits Address Environmental Justice in List of Subjects in 40 CFR Part 180 (MRLs) established for residues of Minority Populations and Low-Income Environmental protection, isoxaflutole in crop or livestock Populations (59 FR 7629, February 16, Administrative practice and procedure, commodities. 1994). Agricultural commodities, Pesticides Since tolerances and exemptions that V. Conclusion and pests, Reporting and recordkeeping are established on the basis of a petition requirements. Therefore, EPA has revised tolerances under section 408(d) of FFDCA, such as for the combined residues of the tolerance in this final rule, do not Dated: December 3, 2008. isoxaflutole and its metabolites RPA require the issuance of a proposed rule, Donald R. Stubbs, 202248 and RPA 203328, calculated as the requirements of the Regulatory Acting Director, Registration Division, Office the parent compound, in or on corn, Flexibility Act (RFA) (5 U.S.C. 601 et of Pesticide Programs. field, forage at 0.04 ppm; corn, field, seq.) do not apply. ■ Therefore, 40 CFR chapter I is grain at 0.02 ppm; and corn, field, stover This final rule directly regulates amended as follows: at 0.02 ppm; and has removed the growers, food processors, food handlers, benzoic acid metabolite (RPA 203328) and food retailers, not States or tribes, PART 180—[AMENDED] from the established tolerance nor does this action alter the ■ 1. The authority citation for part 180 expression. EPA has removed the relationships or distribution of power continues to read as follows: established tolerances for the combined and responsibilities established by residues of isoxaflutole and its Congress in the preemption provisions Authority: 21 U.S.C. 321(q), 346a and 371. metabolite RPA 202248, calculated as of section 408(n)(4) of FFDCA. As such, ■ 2. In § 180.537, paragraph (a) is the parent compound, in or on cattle, fat the Agency has determined that this revised to read as follows: at 0.20 ppm; cattle, liver at 0.50 ppm; action will not have a substantial direct cattle, meat at 0.20 ppm; cattle, meat effect on States or tribal governments, § 180.537 Isoxaflutole; tolerances for byproducts, except liver at 0.10 ppm; on the relationship between the national residues egg at 0.01 ppm; goat, fat at 0.20 ppm; government and the States or tribal (a) General. Tolerances are goat, liver at 0.50 ppm; goat, meat at governments, or on the distribution of established for the combined residues of

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isoxaflutole 5-cyclopropyl-4-(2- its metabolite 1-(2-methylsulfonyl-4- 202248), calculated as the parent methylsulfonyl-4- trifluoromethylphenyl)-2-cyano-3- compound, in or on the following raw trifluoromethylbenzoyl) isoxazole and cyclopropyl propan-1,3-dione (RPA agricultural commodities:

Commodity Parts per million

Corn, field, forage ...... 0.04 Corn, field, grain ...... 0.02 Corn, field, stover ...... 0.02

* * * * * communities agree to adopt and public comment under 5 U.S.C. 553(b) [FR Doc. E8–29467 Filed 12–11–08; 8:45 am] administer local floodplain management are impracticable and unnecessary BILLING CODE 6560–50–S aimed at protecting lives and new because communities listed in this final construction from future flooding. rule have been adequately notified. Section 1315 of the National Flood Each community receives 6-month, DEPARTMENT OF HOMELAND Insurance Act of 1968, as amended, 42 90-day, and 30-day notification letters SECURITY U.S.C. 4022, prohibits flood insurance addressed to the Chief Executive Officer coverage as authorized under the NFIP, stating that the community will be Federal Emergency Management 42 U.S.C. 4001 et seq.; unless an suspended unless the required Agency appropriate public body adopts floodplain management measures are adequate floodplain management met prior to the effective suspension 44 CFR Part 64 measures with effective enforcement date. Since these notifications were measures. The communities listed in made, this final rule may take effect [Docket No. FEMA–8053] this document no longer meet that within less than 30 days. Suspension of Community Eligibility statutory requirement for compliance National Environmental Policy Act. with program regulations, 44 CFR part This rule is categorically excluded from AGENCY: Federal Emergency 59. Accordingly, the communities will the requirements of 44 CFR part 10, Management Agency, DHS. be suspended on the effective date in Environmental Considerations. No ACTION: Final rule. the third column. As of that date, flood environmental impact assessment has insurance will no longer be available in been prepared. SUMMARY: This rule identifies the community. However, some of these Regulatory Flexibility Act. The communities, where the sale of flood communities may adopt and submit the Administrator has determined that this insurance has been authorized under required documentation of legally rule is exempt from the requirements of enforceable floodplain management the National Flood Insurance Program the Regulatory Flexibility Act because measures after this rule is published but (NFIP), that are scheduled for the National Flood Insurance Act of prior to the actual suspension date. suspension on the effective dates listed 1968, as amended, 42 U.S.C. 4022, These communities will not be within this rule because of prohibits flood insurance coverage suspended and will continue their noncompliance with the floodplain unless an appropriate public body eligibility for the sale of insurance. A management requirements of the adopts adequate floodplain management notice withdrawing the suspension of program. If the Federal Emergency measures with effective enforcement the communities will be published in Management Agency (FEMA) receives measures. The communities listed no the Federal Register. documentation that the community has longer comply with the statutory adopted the required floodplain In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in requirements, and after the effective management measures prior to the date, flood insurance will no longer be effective suspension date given in this these communities by publishing a Flood Insurance Rate Map (FIRM). The available in the communities unless rule, the suspension will not occur and remedial action takes place. a notice of this will be provided by date of the FIRM, if one has been published, is indicated in the fourth Regulatory Classification. This final publication in the Federal Register on a rule is not a significant regulatory action subsequent date. column of the table. No direct Federal financial assistance (except assistance under the criteria of section 3(f) of DATES: Effective Date: The effective date pursuant to the Robert T. Stafford Executive Order 12866 of September 30, of each community’s scheduled Disaster Relief and Emergency 1993, Regulatory Planning and Review, suspension is the third date (‘‘Susp.’’) Assistance Act not in connection with a 58 FR 51735. listed in the third column of the flood) may legally be provided for Executive Order 13132, Federalism. following tables. construction or acquisition of buildings This rule involves no policies that have FOR FURTHER INFORMATION CONTACT: If in identified SFHAs for communities federalism implications under Executive you want to determine whether a not participating in the NFIP and Order 13132. particular community was suspended identified for more than a year, on Executive Order 12988, Civil Justice on the suspension date or for further FEMA’s initial flood insurance map of Reform. This rule meets the applicable information, contact David Stearrett, the community as having flood-prone standards of Executive Order 12988. Mitigation Directorate, Federal areas (section 202(a) of the Flood Paperwork Reduction Act. This rule Emergency Management Agency, 500 C Disaster Protection Act of 1973, 42 does not involve any collection of Street SW., Washington, DC 20472, U.S.C. 4106(a), as amended). This information for purposes of the (202) 646–2953. prohibition against certain types of Paperwork Reduction Act, 44 U.S.C. SUPPLEMENTARY INFORMATION: The NFIP Federal assistance becomes effective for 3501 et seq. enables property owners to purchase the communities listed on the date List of Subjects in 44 CFR Part 64 flood insurance which is generally not shown in the last column. The otherwise available. In return, Administrator finds that notice and Flood insurance, Floodplains.

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■ Accordingly, 44 CFR part 64 is Authority: 42 U.S.C. 4001 et seq.; § 64.6 [Amended] amended as follows: Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, ■ 2. The tables published under the PART 64—[AMENDED] 3 CFR, 1979 Comp.; p. 376. authority of § 64.6 are amended as follows: ■ 1. The authority citation for part 64 continues to read as follows:

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

Region III Virginia: Goochland County, Unincorporated 510072 April 19, 1973, Emerg; March 1, 1979, Reg; Dec. 2, 2008 ..... Dec. 2, 2008. Areas. December 2, 2008, Susp. Hanover County, Unincorporated Areas 510237 April 4, 1974, Emerg; September 2, 1981, ...... *do ...... Do. Reg; December 2, 2008, Susp. Region IV North Carolina: Avery County, Unincorporated Areas .... 370010 February 12, 1976, Emerg; September 28, ...... do ...... Do. 1990, Reg; December 2, 2008, Susp. Banner Elk, Town of, Avery County ...... 370011 November 13, 1974, Emerg; January 15, ...... do ...... Do. 1988, Reg; December 2, 2008, Susp. Beech Mountain, Town of, Watauga 370480 —, Emerg; March 12, 2004, Reg; Decem- ...... do ...... Do. County. ber 2, 2008, Susp. Crossnore, Town of, Avery County ...... 370287 January 14, 1980, Emerg; August 19, 1986, ...... do ...... Do. Reg; December 2, 2008, Susp. Elk Park, Town of, Avery County ...... 370382 March 23, 1979, Emerg; April 15, 1986, ...... do ...... Do. Reg; December 2, 2008, Susp. Newland, Town of, Avery County ...... 370012 September 17, 1975, Emerg; December 4, ...... do ...... Do. 1984, Reg; December 2, 2008, Susp. Tennessee: Adamsville, Town of, McNairy County .. 470292 March 30, 1982, Emerg; September 29, ...... do ...... Do. 1986, Reg; December 2, 2008, Susp. Michie, City of, McNairy County ...... 470336 September 14, 2006, Emerg; December 1, ...... do ...... Do. 2006, Reg; December 2, 2008, Susp. Ramer, Town of, McNairy County ...... 470131 July 17, 2002, Emerg; November 1, 2005, ...... do ...... Do. Reg; December 2, 2008, Susp. Region V Michigan: Caseville, Township of, Huron County .. 260257 November 9, 1973, Emerg; December 1, ...... do ...... Do. 1977, Reg; December 2, 2008, Susp. Caseville, Village of, Huron County ...... 260677 May 28, 1982, Emerg; January 1, 1992, ...... do ...... Do. Reg; December 2, 2008, Susp. Elkton, Village of, Huron County ...... 260569 September 3, 1981, Emerg; May 25, 1984, ...... do ...... Do. Reg; December 2, 2008, Susp. Fairhaven, Township of, Huron County 260628 August 12, 1975, Emerg; January 6, 1988, ...... do ...... Do. Reg; December 2, 2008, Susp. Gore, Township of, Huron County ...... 260785 December 16, 1986, Emerg; September 18, ...... do ...... Do. 1987, Reg; December 2, 2008, Susp. Hume, Township of, Huron County ...... 260792 January 29, 1987, Emerg; September 18, ...... do ...... Do. 1987, Reg; December 2, 2008, Susp. Huron, Township of, Huron County ...... 260415 July 15, 1987, Emerg; April 2, 1992, Reg; ...... do ...... Do. December 2, 2008, Susp. Lake, Township of, Huron County ...... 260254 January 30, 1974, Emerg; April 3, 1978, ...... do ...... Do. Reg; December 2, 2008, Susp. McKinley, Township of, Huron County .. 260322 November 26, 1974, Emerg; July 1, 1987, ...... do ...... Do. Reg; December 2, 2008, Susp. Oliver, Township of, Huron County ...... 261312 December 4, 2002, Emerg; —, Reg; De- ...... do ...... Do. cember 2, 2008, Susp. Port Austin, Township of, Huron County 260290 April 17, 1974, Emerg; January 1, 1992, ...... do ...... Do. Reg; December 2, 2008, Susp. Rubicon, Township of, Huron County ... 260789 December 22, 1986, Emerg; September 30, ...... do ...... Do. 1988, Reg; December 2, 2008, Susp. Sand Beach, Township of, Huron Coun- 260787 December 16, 1986, Emerg; September 18, ...... do ...... Do. ty. 1987, Reg; December 2, 2008, Susp. Sebewaing, Village of, Huron County... 260572 March 24, 1976, Emerg; December 3, ...... do ...... Do. 1987, Reg; December 2, 2008, Susp. Sherman, Township of, Huron County .. 260788 December 15, 1986, Emerg; September 18, ...... do ...... Do. 1987, Reg; December 2, 2008, Susp.

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

Ohio: Holmes County, Unincorporated Areas 390276 October 25, 1977, Emerg; December 15, ...... do ...... Do. 1990, Reg; December 2, 2008, Susp. Killbuck, Village of, Holmes County ...... 390279 August 27, 1975, Emerg; February 5, 1986, ...... do ...... Do. Reg; December 2, 2008, Susp. Region IX California: Cotati, City of, Sonoma County ...... 060377 July 22, 1975, Emerg; April 15, 1980, Reg; ...... do ...... Do. December 2, 2008, Susp. *do = Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp—Suspension.

Dated: November 28, 2008. ADDRESSES: Copies of the proposed and ALWTRP’s DAM program (67 FR 1133). Michael K. Buckley, final Dynamic Area Management (DAM) On August 26, 2003, NMFS amended Acting Assistant Administrator, Mitigation rules, Environmental Assessments the regulations by publishing a final Directorate, Department of Homeland (EAs), Atlantic Large Whale Take rule, which specifically identified gear Security, Federal Emergency Management Reduction Team (ALWTRT) meeting modifications that may be allowed in a Agency. summaries, and progress reports on DAM zone (68 FR 51195). The DAM [FR Doc. E8–29456 Filed 12–11–08; 8:45 am] implementation of the ALWTRP may program provides specifc authority for BILLING CODE 9110–12–P also be obtained by writing Diane NMFS to restrict temporarily on an Borggaard, NMFS/Northeast Region, 55 expedited basis the use of lobster trap/ Great Republic Drive, Gloucester, MA pot and anchored gillnet fishing gear in DEPARTMENT OF COMMERCE 01930. order to protect right whales and is FOR FURTHER INFORMATION CONTACT: applicable to areas north of 42° 30’ N. National Oceanic and Atmospheric Diane Borggaard, NMFS/Northeast lat. Under the DAM program, NMFS Administration Region, 978–281–9300 x6503; or Kristy may: (1) require the removal of all Long, NMFS, Office of Protected lobster trap/pot and anchored gillnet 50 CFR Part 229 Resources, 301–713–2322. fishing gear for a 15–day period; (2) SUPPLEMENTARY INFORMATION: allow lobster trap/pot and anchored [Docket No. 0812081564–81568–01] gillnet fishing within a DAM zone with Electronic Access RIN 0648–XM18 gear modifications determined by NMFS Several of the background documents to sufficiently reduce the risk of Taking of Marine Mammals Incidental for the ALWTRP and the take reduction entanglement; and/or (3) issue an alert to Commercial Fishing Operations; planning process can be downloaded to fishermen requesting the voluntary Atlantic Large Whale Take Reduction from the ALWTRP web site at http:// removal of all lobster trap/pot and Plan www.nero.noaa.gov/whaletrp/. anchored gillnet gear for a 15–day Background period and asking fishermen not to set AGENCY: National Marine Fisheries any additional gear in the DAM zone Service (NMFS), National Oceanic and The ALWTRP was developed during the 15–day period. Atmospheric Administration (NOAA), pursuant to section 118 of the Marine Commerce. Mammal Protection Act (MMPA) to A DAM zone is triggered when NMFS receives a reliable report from a ACTION: Temporary rule. reduce the incidental mortality and serious injury of three endangered qualified individual of three or more SUMMARY: The Assistant Administrator species of whales (right, fin, and right whales sighted within an area (75 2 2 for Fisheries (AA), NOAA, announces humpback) due to incidental interaction nm (139 km )) such that right whale temporary restrictions consistent with with commercial fishing activities. In density is equal to or greater than 0.04 2 2 the requirements of the Atlantic Large addition, the measures identified in the right whales per nm (1.85 km ). A Whale Take Reduction Plan’s ALWTRP would provide conservation qualified individual is an individual (ALWTRP) implementing regulations. benefits to a fourth species (minke), ascertained by NMFS to be reasonably These regulations apply to lobster trap/ which are neither listed as endangered able, through training or experience, to pot and anchored gillnet fishermen in nor threatened under the Endangered identify a right whale. Such individuals an area totaling approximately 1,650 Species Act (ESA). The ALWTRP, include, but are not limited to, NMFS nm2 (5,659.5 km2), east of Gloucester, implemented through regulations staff, U.S. Coast Guard and Navy Massachusetts, and Portsmouth, New codified at 50 CFR 229.32, relies on a personnel trained in whale Hampshire, in the proximity of Jeffreys combination of fishing gear identification, scientific research survey Ledge, for 15 days. The purpose of this modifications and time/area closures to personnel, whale watch operators and action is to provide protection to an reduce the risk of whales becoming naturalists, and mariners trained in aggregation of northern right whales entangled in commercial fishing gear whale species identification through (right whales). (and potentially suffering serious injury disentanglement training or some other DATES: Effective beginning at 0001 hours or mortality as a result). training program deemed adequate by December 15, 2008, through 2400 hours On January 9, 2002, NMFS published NMFS. A reliable report would be a December 29, 2008. the final rule to implement the credible right whale sighting.

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On December 3, 2008, an aerial survey Lobster trap/pot gear requirements apply to all variations in reported an aggregation of 11 right Fishermen utilizing lobster trap/pot net panel size. One weak link must be whales in the general proximity of 42° placed in the center of the floatline and ° gear within portions of Northern Inshore 54’ N. latitude and 70 19’ W. longitude. Stae Trap/Pot Waters, Northern one weak link must be placed in the The position lies east of Gloucester, MA, Nearshore Trap/Pot Waters, and center of each of the up and down lines and Portsmouth, NH, in the proximity of Stellwagen Bank/Jeffreys Ledge at both ends of the net panel. Additionally, one weak link must be Jeffreys Ledge. After conducting an Restricted Area that overlap with the placed as close as possible to each end investigation, NMFS ascertained that DAM zone are required to utilize all of of the net panels on the floatline; or, one the report came from a qualified the following gear modifications while weak link must be placed between individual and determined that the the DAM zone is in effect: floatline tie-loops between net panels report was reliable. Thus, NMFS has 1. Groundlines must be made of either and one weak link must be placed received a reliable report from a sinking or neutrally buoyant line. where the floatline tie-loops attach to qualified individual of the requisite Floating groundlines are prohibited; the bridle, buoy line, or groundline at right whale density to trigger the DAM 2. All buoy lines must be made of each end of a net string; provisions of the ALWTRP. either sinking or neutrally buoyant line, Once a DAM zone is triggered, NMFS 5. A weak link with a maximum except the bottom portion of the line, breaking strength of 1,100 lb (498.8 kg) determines whether to impose which may be a section of floating line restrictions on fishing and/or fishing must be placed at all buoys; and not to exceed one-third the overall 6. All anchored gillnets, regardless of gear in the zone. This determination is length of the buoy line; based on the following factors, the number of net panels, must be 3. Fishermen are allowed to use two securely anchored with the holding including but not limited to: the buoy lines per trawl; and location of the DAM zone with respect power of at least a 22 lb (10.0 kg) 4. A weak link with a maximum Danforth-style anchor at each end of the to other fishery closure areas, weather breaking strength of 600 lb (272.4 kg) conditions as they relate to the safety of net string. must be placed at all buoys. The restrictions will be in effect human life at sea, the type and amount Fishermen utilizing lobster trap/pot of gear already present in the area, and beginning at 0001 hours December 15, gear within the portion of the Offshore 2008, through 2400 hours December 29, a review of recent right whale Lobster Waters Area that overlap with entanglement and mortality data. 2008, unless terminated sooner or the DAM zone are required to utilize all extended by NMFS through another NMFS has reviewed the factors and of the following gear modifications management options noted above notification in the Federal Register. while the DAM zone is in effect: The restrictions will be announced to relative to the DAM under 1. Groundlines must be made of either state officials, fishermen, ALWTRT consideration. As a result of this review, sinking or neutrally buoyant line. members, and other interested parties NMFS prohibits lobster trap/pot and Floating groundlines are prohibited; through e-mail, phone contact, NOAA anchored gillnet gear in this area during 2. All buoy lines must be made of website, and other appropriate media the 15–day restricted period unless it is either sinking or neutrally buoyant line, immediately upon issuance of the rule modified in the manner described in except the bottom portion of the line, by the AA. this temporary rule. which may be a section of floating line The DAM Zone is bound by the not to exceed one-third the overall Classification following coordinates: length of the buoy line; In accordance with section 118(f)(9) of ° ° 43 15’ N., 70 35’ W. (NW Corner) 3. Fishermen are allowed to use two the MMPA, the Assistant Administrator ° ° 43 15’ N., 69 48’ W. buoy lines per trawl; and (AA) for Fisheries has determined that ° ° 42 32’ N., 69 48’ W. 4. A weak link with a maximum this action is necessary to implement a 42° 32’ N., 70° 44’ W. breaking strength of 1,500 lb (680.4 kg) take reduction plan to protect North 43° 34’ N., 70° 44’ W. Following the must be placed at all buoys. Atlantic right whales. shoreline northward to Environmental Assessments for the Anchored Gillnet Gear 42° 40’ N., 70° 44’ W. DAM program were prepared on 43° 02’ N., 70° 44’ W. Following the Fishermen utilizing anchored gillnet December 28, 2001, and August 6, 2003. shoreline northward to gear within the portions of the Other This action falls within the scope of the 43° 15’ N., 70° 35’ W. (NW Corner) Northeast Gillnet Waters Area and the analyses of these EAs, which are In addition to those gear Stellwagen Bank/Jeffreys Ledge available from the agency upon request. modifications currently implemented Restricted Area that overlap with the NMFS provided prior notice and an under the ALWTRP at 50 CFR 229.32, DAM zone are required to utilize all the opportunity for public comment on the the following gear modifications are following gear modifications while the regulations establishing the criteria and required in the DAM zone. If the DAM zone is in effect: procedures for implementing a DAM requirements and exceptions for gear 1. Groundlines must be made of either zone. Providing prior notice and modification in the DAM zone, as sinking or neutrally buoyant line. opportunity for comment on this action, described below, differ from other Floating groundlines are prohibited; pursuant to those regulations, would be ALWTRP requirements for any 2. All buoy lines must be made of impracticable because it would prevent overlapping areas and times, then the either sinking or neutrally buoyant line, NMFS from executing its functions to more restrictive requirements will apply except the bottom portion of the line, protect and reduce serious injury and in the DAM zone. Special note for which may be a section of floating line mortality of endangered right whales. gillnet fishermen: a portion of this DAM not to exceed one-third the overall The regulations establishing the DAM zone overlaps the year-round Western length of the buoy line; program are designed to enable the Gulf of Maine Closure Area for 3. Fishermen are allowed to use two agency to help protect unexpected Northeast Multispecies found at 50 CFR buoy lines per string; concentrations of right whales. In order 648.81(e).Due to this closure, sink 4. The breaking strength of each net to meet the goals of the DAM program, gillnet gear is prohibited from this panel weak link must not exceed 1,100 the agency needs to be able to create a portion of the DAM zone. lb (498.8 kg). The weak link DAM zone and implement restrictions

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on fishing gear as soon as possible once NMFS’ conclusion that the DAM an area totaling approximately 1,575 the criteria are triggered and NMFS program is consistent to the maximum nm2 (5,402.3 km2), east of Portland, determines that a DAM restricted zone extent practicable with the enforceable Maine, for 15 days. The purpose of this is appropriate. If NMFS were to provide policies of the approved coastal action is to provide protection to an prior notice and an opportunity for management program for that state. aggregation of northern right whales public comment upon the creation of a The DAM program under which (right whales). DAM restricted zone, the aggregated NMFS is taking this action contains DATES: Effective beginning at 0001 hours right whales would be vulnerable to policies with federalism implications December 15, 2008, through 2400 hours entanglement which could result in warranting preparation of a federalism December 29, 2008. serious injury and mortality. assessment under Executive Order ADDRESSES: Copies of the proposed and Additionally, the right whales would 13132. Accordingly, in October 2001 final Dynamic Area Management (DAM) most likely move on to another location and March 2003, the Assistant Secretary rules, Environmental Assessments before NMFS could implement the for Intergovernmental and Legislative (EAs), Atlantic Large Whale Take restrictions designed to protect them, Affairs, Department of Commerce, Reduction Team (ALWTRT) meeting thereby rendering the action obsolete. provided notice of the DAM program summaries, and progress reports on Therefore, pursuant to 5 U.S.C. and its amendments to the appropriate implementation of the ALWTRP may 553(b)(B), the AA finds that good cause elected officials in states to be affected also be obtained by writing Diane exists to waive prior notice and an by actions taken pursuant to the DAM Borggaard, NMFS/Northeast Region, 55 opportunity to comment on this action program. Federalism issues raised by Great Republic Drive, Gloucester, MA to implement a DAM restricted zone to state officials were addressed in the 01930. reduce the risk of entanglement of final rules implementing the DAM endangered right whales in commercial program. A copy of the federalism FOR FURTHER INFORMATION CONTACT: lobster trap/pot and anchored gillnet Summary Impact Statement for the final Diane Borggaard, NMFS/Northeast gear as such procedures would be rules is available upon request Region, 978–281–9300 x6503; or Kristy impracticable. (ADDRESSES). Long, NMFS, Office of Protected For the same reasons, the AA finds The rule implementing the DAM Resources, 301–713–2322. that, under 5 U.S.C. 553(d)(3), good program has been determined to be not SUPPLEMENTARY INFORMATION: cause exists to waive the 30–day delay significant under Executive Order Electronic Access in effective date. If NMFS were to delay 12866. for 30 days the effective date of this Several of the background documents action, the aggregated right whales Authority: 16 U.S.C. 1361 et seq. and 50 for the ALWTRP and the take reduction CFR 229.32(g)(3) would be vulnerable to entanglement, planning process can be downloaded which could cause serious injury and Dated: December 8, 2008. from the ALWTRP web site at http:// mortality. Additionally, right whales Samuel D. Rauch III, www.nero.noaa.gov/whaletrp/. would likely move to another location Deputy Assistant Administrator for Background between the time NMFS approved the Regulatory Programs, National Marine action creating the DAM restricted zone Fisheries Service. The ALWTRP was developed and the time it went into effect, thereby [FR Doc. E8–29492 Filed 12–9–08; 4:15 pm] pursuant to section 118 of the Marine rendering the action obsolete and BILLING CODE 3510–22–S Mammal Protection Act (MMPA) to ineffective. Nevertheless, NMFS reduce the incidental mortality and recognizes the need for fishermen to serious injury of three endangered have time to either modify or remove (if DEPARTMENT OF COMMERCE species of whales (right, fin, and not in compliance with the required humpback) due to incidental interaction restrictions) their gear from a DAM zone National Oceanic and Atmospheric with commercial fishing activities. In once one is approved. Thus, NMFS Administration addition, the measures identified in the makes this action effective 2 days after ALWTRP would provide conservation the date of publication of this document 50 CFR Part 229 benefits to a fourth species (minke), in the Federal Register. NMFS will also [Docket No. 0812081566–81570–01] which are neither listed as endangered endeavor to provide notice of this action nor threatened under the Endangered to fishermen through other means upon RIN 0648–XM19 Species Act (ESA). The ALWTRP, implemented through regulations issuance of the rule by the AA, thereby Taking of Marine Mammals Incidental codified at 50 CFR 229.32, relies on a providing approximately 3 additional to Commercial Fishing Operations; combination of fishing gear days of notice while the Office of the Atlantic Large Whale Take Reduction modifications and time/area closures to Federal Register processes the Plan document for publication. reduce the risk of whales becoming NMFS determined that the regulations AGENCY: National Marine Fisheries entangled in commercial fishing gear establishing the DAM program and Service (NMFS), National Oceanic and (and potentially suffering serious injury actions such as this one taken pursuant Atmospheric Administration (NOAA), or mortality as a result). to those regulations are consistent to the Commerce. On January 9, 2002, NMFS published maximum extent practicable with the ACTION: Temporary rule. the final rule to implement the enforceable policies of the approved ALWTRP’s DAM program (67 FR 1133). coastal management program of the U.S. SUMMARY: The Assistant Administrator On August 26, 2003, NMFS amended Atlantic coastal states. This for Fisheries (AA), NOAA, announces the regulations by publishing a final determination was submitted for review temporary restrictions consistent with rule, which specifically identified gear by the responsible state agencies under the requirements of the Atlantic Large modifications that may be allowed in a section 307 of the Coastal Zone Whale Take Reduction Plan’s DAM zone (68 FR 51195). The DAM Management Act. Following state (ALWTRP) implementing regulations. program provides specifc authority for review of the regulations creating the These regulations apply to lobster trap/ NMFS to restrict temporarily on an DAM program, no state disagreed with pot and anchored gillnet fishermen in expedited basis the use of lobster trap/

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pot and anchored gillnet fishing gear in NMFS has reviewed the factors and 4. A weak link with a maximum order to protect right whales and is management options noted above breaking strength of 1,500 lb (680.4 kg) applicable to areas north of 42° 30’ N. relative to the DAM under must be placed at all buoys. lat. Under the DAM program, NMFS consideration. As a result of this review, Anchored Gillnet Gear may: (1) require the removal of all NMFS prohibits lobster trap/pot and lobster trap/pot and anchored gillnet anchored gillnet gear in this area during Fishermen utilizing anchored gillnet fishing gear for a 15–day period; (2) the 15–day restricted period unless it is gear within the portions of the Other allow lobster trap/pot and anchored modified in the manner described in Northeast Gillnet Waters Area that gillnet fishing within a DAM zone with this temporary rule. overlap with the DAM zone are required gear modifications determined by NMFS The DAM Zone is bound by the to utilize all the following gear to sufficiently reduce the risk of following coordinates: modifications while the DAM zone is in entanglement; and/or (3) issue an alert 43° 42’ N., 68° 57’ W. (NW Corner) effect: to fishermen requesting the voluntary 43° 42’ N., 68° 00’ W. 1. Groundlines must be made of either removal of all lobster trap/pot and 43° 04’ N., 68° 00’ W. sinking or neutrally buoyant line. anchored gillnet gear for a 15–day 43° 04’ N., 68° 57’ W. Floating groundlines are prohibited; period and asking fishermen not to set 43° 42’ N., 68° 57’ W. (NW Corner) 2. All buoy lines must be made of any additional gear in the DAM zone In addition to those gear either sinking or neutrally buoyant line, during the 15–day period. modifications currently implemented except the bottom portion of the line, A DAM zone is triggered when NMFS under the ALWTRP at 50 CFR 229.32, which may be a section of floating line receives a reliable report from a the following gear modifications are not to exceed one-third the overall qualified individual of three or more required in the DAM zone. If the length of the buoy line; 3. Fishermen are allowed to use two right whales sighted within an area (75 requirements and exceptions for gear buoy lines per string; nm2 (139 km2)) such that right whale modification in the DAM zone, as 4. The breaking strength of each net density is equal to or greater than 0.04 described below, differ from other panel weak link must not exceed 1,100 right whales per nm2 (1.85 km2). A ALWTRP requirements for any lb (498.8 kg). The weak link qualified individual is an individual overlapping areas and times, then the requirements apply to all variations in ascertained by NMFS to be reasonably more restrictive requirements will apply net panel size. One weak link must be able, through training or experience, to in the DAM zone. placed in the center of the floatline and identify a right whale. Such individuals one weak link must be placed in the include, but are not limited to, NMFS Lobster trap/pot gear center of each of the up and down lines staff, U.S. Coast Guard and Navy Fishermen utilizing lobster trap/pot at both ends of the net panel. personnel trained in whale gear within portions of Northern Additionally, one weak link must be identification, scientific research survey Nearshore Lobster Waters that overlap placed as close as possible to each end personnel, whale watch operators and with the DAM zone are required to of the net panels on the floatline; or, one naturalists, and mariners trained in utilize all of the following gear weak link must be placed between whale species identification through modifications while the DAM zone is in floatline tie-loops between net panels disentanglement training or some other effect: and one weak link must be placed training program deemed adequate by 1. Groundlines must be made of either where the floatline tie-loops attach to NMFS. A reliable report would be a sinking or neutrally buoyant line. the bridle, buoy line, or groundline at credible right whale sighting. Floating groundlines are prohibited; each end of a net string; On December 3, 2008, an aerial survey 2. All buoy lines must be made of 5. A weak link with a maximum reported an aggregation of 43 right either sinking or neutrally buoyant line, breaking strength of 1,100 lb (498.8 kg) whales in the general proximity of 43° except the bottom portion of the line, ° must be placed at all buoys; and 37’ N. latitude and 68 54’ W. longitude. which may be a section of floating line 6. All anchored gillnets, regardless of The position lies approximately 95 nm not to exceed one-third the overall the number of net panels, must be east of Portland, ME, in proximity to length of the buoy line; securely anchored with the holding Jeffreys Bank/Jordans Basin. After 3. Fishermen are allowed to use two power of at least a 22 lb (10.0 kg) conducting an investigation, NMFS buoy lines per trawl; and Danforth-style anchor at each end of the ascertained that the report came from a 4. A weak link with a maximum net string. qualified individual and determined breaking strength of 600 lb (272.4 kg) The restrictions will be in effect that the report was reliable. Thus, must be placed at all buoys. beginning at 0001 hours December 15, NMFS has received a reliable report Fishermen utilizing lobster trap/pot 2008, through 2400 hours December 29, from a qualified individual of the gear within the portion of the Offshore 2008, unless terminated sooner or requisite right whale density to trigger Lobster Waters Area that overlap with extended by NMFS through another the DAM provisions of the ALWTRP. the DAM zone are required to utilize all notification in the Federal Register. Once a DAM zone is triggered, NMFS of the following gear modifications The restrictions will be announced to determines whether to impose while the DAM zone is in effect: state officials, fishermen, ALWTRT restrictions on fishing and/or fishing 1. Groundlines must be made of either members, and other interested parties gear in the zone. This determination is sinking or neutrally buoyant line. through e-mail, phone contact, NOAA based on the following factors, Floating groundlines are prohibited; website, and other appropriate media including but not limited to: the 2. All buoy lines must be made of immediately upon issuance of the rule location of the DAM zone with respect either sinking or neutrally buoyant line, by the AA. to other fishery closure areas, weather except the bottom portion of the line, conditions as they relate to the safety of which may be a section of floating line Classification human life at sea, the type and amount not to exceed one-third the overall In accordance with section 118(f)(9) of of gear already present in the area, and length of the buoy line; the MMPA, the Assistant Administrator a review of recent right whale 3. Fishermen are allowed to use two (AA) for Fisheries has determined that entanglement and mortality data. buoy lines per trawl; and this action is necessary to implement a

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take reduction plan to protect North restrictions) their gear from a DAM zone DEPARTMENT OF COMMERCE Atlantic right whales. once one is approved. Thus, NMFS Environmental Assessments for the makes this action effective 2 days after National Oceanic and Atmospheric DAM program were prepared on the date of publication of this document Administration December 28, 2001, and August 6, 2003. in the Federal Register. NMFS will also This action falls within the scope of the endeavor to provide notice of this action 50 CFR Part 665 analyses of these EAs, which are to fishermen through other means upon [Docket No. 070720390–81459–03] available from the agency upon request. issuance of the rule by the AA, thereby NMFS provided prior notice and an RIN 0648–AV28 providing approximately 3 additional opportunity for public comment on the regulations establishing the criteria and days of notice while the Office of the Fisheries in the Western Pacific; procedures for implementing a DAM Federal Register processes the Bottomfish and Seamount Groundfish zone. Providing prior notice and document for publication. Fisheries; Management Measures for opportunity for comment on this action, NMFS determined that the regulations the Northern Mariana Islands pursuant to those regulations, would be establishing the DAM program and AGENCY: National Marine Fisheries impracticable because it would prevent actions such as this one taken pursuant Service (NMFS), National Oceanic and NMFS from executing its functions to to those regulations are consistent to the Atmospheric Administration (NOAA), protect and reduce serious injury and maximum extent practicable with the Commerce. mortality of endangered right whales. enforceable policies of the approved ACTION: Final rule. The regulations establishing the DAM coastal management program of the U.S. program are designed to enable the Atlantic coastal states. This SUMMARY: This final rule establishes agency to help protect unexpected determination was submitted for review Federal permitting and reporting concentrations of right whales. In order by the responsible state agencies under requirements for all commercial to meet the goals of the DAM program, section 307 of the Coastal Zone bottomfish vessels fishing in the U.S. the agency needs to be able to create a Management Act. Following state Exclusive Economic Zone (EEZ) around DAM zone and implement restrictions the Commonwealth of the Northern on fishing gear as soon as possible once review of the regulations creating the DAM program, no state disagreed with Mariana Islands (CNMI). The final rule the criteria are triggered and NMFS also closes certain EEZ waters around determines that a DAM restricted zone NMFS’ conclusion that the DAM program is consistent to the maximum the CNMI to bottomfish fishing by is appropriate. If NMFS were to provide vessels over 40 ft (12.2 m) in length. extent practicable with the enforceable prior notice and an opportunity for Vessel monitoring system units must be policies of the approved coastal public comment upon the creation of a installed on those larger vessels when management program for that state. DAM restricted zone, the aggregated fishing in EEZ waters around the CNMI, right whales would be vulnerable to The DAM program under which and the operators of those larger vessels entanglement which could result in NMFS is taking this action contains will be required to submit Federal sales serious injury and mortality. policies with federalism implications reports in addition to catch reports. This Additionally, the right whales would warranting preparation of a federalism final rule is intended to ensure adequate most likely move on to another location assessment under Executive Order collection of information about the before NMFS could implement the 13132. Accordingly, in October 2001 CNMI commercial bottomfish fishery, restrictions designed to protect them, provide for sustained community thereby rendering the action obsolete. and March 2003, the Assistant Secretary participation, and maintain a consistent Therefore, pursuant to 5 U.S.C. for Intergovernmental and Legislative supply of locally-caught bottomfish to 553(b)(B), the AA finds that good cause Affairs, Department of Commerce, CNMI markets and seafood consumers. exists to waive prior notice and an provided notice of the DAM program Combined, these measures are intended opportunity to comment on this action and its amendments to the appropriate to prevent the depletion of bottomfish to implement a DAM restricted zone to elected officials in states to be affected stocks in the CNMI, and to sustain the reduce the risk of entanglement of by actions taken pursuant to the DAM endangered right whales in commercial program. Federalism issues raised by fisheries that depend on them. lobster trap/pot and anchored gillnet state officials were addressed in the DATES: This final rule is effective gear as such procedures would be final rules implementing the DAM January 12, 2009, except for the impracticable. program. A copy of the federalism revisions to §§ 665.14, 665.19(a)(4), and For the same reasons, the AA finds Summary Impact Statement for the final 665.61, which require approval by the that, under 5 U.S.C. 553(d)(3), good rules is available upon request Office of Management and Budget (OMB) under the Paperwork Reduction cause exists to waive the 30–day delay (ADDRESSES). in effective date. If NMFS were to delay Act (PRA). When OMB approval is for 30 days the effective date of this The rule implementing the DAM received, the effective date will be action, the aggregated right whales program has been determined to be not announced in the Federal Register. would be vulnerable to entanglement, significant under Executive Order ADDRESSES: The Fishery Management which could cause serious injury and 12866. Plan for Bottomfish and Seamount mortality. Additionally, right whales Authority: 16 U.S.C. 1361 et seq. and 50 Groundfish Fisheries of the Western would likely move to another location CFR 229.32(g)(3) Pacific Region and Amendment 10 are between the time NMFS approved the available from the Western Pacific Dated: December 8, 2008. action creating the DAM restricted zone Fishery Management Council (Council), and the time it went into effect, thereby Samuel D. Rauch III, 1164 Bishop St., Suite 1400, Honolulu, rendering the action obsolete and Deputy Assistant Administrator for HI 96813, tel 808–522–8220, fax 808– ineffective. Nevertheless, NMFS Regulatory Programs, National Marine 522–8226, or www.wpcouncil.org. recognizes the need for fishermen to Fisheries Service. Written comments regarding the have time to either modify or remove (if [FR Doc. E8–29493 Filed 12–9–08; 4:15 pm] burden-hour estimates or other aspects not in compliance with the required BILLING CODE 3510–22–S of the collection-of-information

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requirements contained in this final rule historically been dependent on these fishing by vessels over 40 ft (12.2 m). may be submitted to William L. resources. The closed areas include EEZ waters Robinson, Regional Administrator, Several other issues regarding from the shoreline to 50 nm (80.5 km) NMFS, Pacific Islands Region (PIR), bottomfish fishing in the CNMI have around the southern islands of the 1601 Kapiolani Blvd, Suite 1110, been noted. First, existing data CNMI, from the Guam-CNMI EEZ Honolulu, HI 96814–4700, and by e- collection programs in the CNMI are boundary to a line halfway between mail to [email protected], insufficient to monitor catches and Farallon de Medinilla and Anatahan or fax to 202–395–7285. determine the impacts of the fishery on Islands, and EEZ waters from the FOR FURTHER INFORMATION CONTACT: the bottomfish stocks being harvested, shoreline to 10 nm (18.5 km) around the Brett Wiedoff, NMFS PIR, 808–944– or to determine the species composition northern island of Alamagan (Fig. 1). 2272. and amount of discarded catch. Second, The closed area boundaries are defined SUPPLEMENTARY INFORMATION: This large bottomfish vessels need to harvest by straight lines for clarity and to Federal Register notice is also relatively large catches to cover facilitate enforcement. accessible at the Office of the Federal operational costs, and these large Transshipping bottomfish will be Register’s web site: www.gpoaccess.gov/ catches could deplete nearshore stocks. allowed within the closed areas. This fr/. Stock depletion would threaten the could facilitate delivery of bottomfish to Bottomfish in CNMI nearshore waters sustainability of the CNMI bottomfish local and other markets, and provide a are caught in subsistence, recreational, fishery, and if catch rates were potential revenue source other than, or and small-scale commercial fisheries. significantly reduced, small vessels in addition to, fishing. Vessels that Vessels are typically small (less than 25 would not be able to continue operating. transship their catches offshore can ft (7.6 m)), and fishing is more frequent Finally, because the catches from large remain at sea for longer periods of time, in summer months when weather and vessels are typically exported, thereby improving operational sea conditions are calm. Most of these traditional patterns of supply and efficiency and reducing transit costs. small vessels target shallow-water consumption of bottomfish in the local Any vessel commercially receiving bottomfish, but some also target deep- community would be disrupted. bottomfish fish or fish products from a water species. The catch from these This final rule will require the owners fishing vessel will be required to be small vessels is destined for local of all vessels commercially fishing for registered with a valid CNMI markets and consumers in the CNMI, bottomfish management unit species commercial bottomfish permit, and the and is usually not exported. (BMUS) in EEZ waters around the CNMI operator will be required to report any In addition to small vessels, several to obtain Federal fishing permits. Permit bottomfish transshipping activity in the larger vessels (over 40 ft, or 12.2 m, in eligibility will not be restricted, and Federal fishing logbook forms. length) also target deep-water permits will be renewable on an annual Commercial CNMI bottomfish vessels bottomfish at offshore seamounts and basis. over 40 ft (12.2 m) are required to be banks. Catch from these large vessels This final rule will require the marked in compliance with current does not always enter local markets as operators of all commercial bottomfish Federal vessel identification a food supply for CNMI residents. It is vessels to complete and submit Federal requirements, but the final rule exempts also possible for large bottomfish vessels catch reports. In addition to the fishing CNMI-based commercial bottomfish based in Guam to travel to fishing logbook, vessels over 40 ft (12.2 m) vessels from the Federal vessel grounds within U.S. EEZ waters around fishing for bottomfish in the CNMI will identification requirements if the the CNMI. Larger-vessel fisheries could be required to complete and submit vessels are less than 40 ft (12.2 m) in result in excessive fishing pressure on Federal sales reports for the bottomfish length and in compliance with CNMI bottomfish stocks at nearshore banks, that they sell. vessel registration and marking potentially threatening both the fish This final rule will close certain EEZ requirements. stocks and the fisheries that have waters around the CNMI to bottomfish BILLING CODE 3510–22–S

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BILLING CODE 3510–22–C fishing, so the requirements are located as § 665.19. Accordingly, the VMS- Shipboard vessel monitoring system in the pelagic fisheries section of the related prohibitions found in § 665.22 (VMS) units will be required on vessels regulations. (The VMS requirements for are also moved to the general over 40 ft (12.2 m). The VMS is an the Northwestern Hawaiian Islands prohibitions in § 665.15. The VMS- automated, satellite-based system that bottomfish fishery are found in 50 CFR related requirements are also clarified to assists NOAA’s Office for Law 404.5 and are not affected by this final require that VMS units be installed and Enforcement and the U.S. Coast Guard rule.) Because the final rule adds VMS operational when vessels are at sea. in monitoring compliance with closed requirements for bottomfish fishing, the In the definition of bottomfish areas in a reliable and cost-effective section regarding the vessel monitoring management unit species, the scientific manner. To date, the regional system (§ 665.25) is moved from the name for armorhead is revised to the requirements for VMS in 50 CFR 665 pelagic fishery requirements to the valid taxonomic name, and the have applied only to pelagic longline general requirements and renumbered scientific name of the pink snapper is

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revised to include the species, which This final rule has been determined to the nearshore bottomfish fishery would was inadvertently omitted from the be not significant for purposes of represent a reduction in their portfolio of definition. The spellings of local names Executive Order 12866. fishing opportunities. of the longtail and pink snappers are NMFS prepared a final regulatory Alternative 2 - Prohibit commercial fishing for BMUS by vessels greater than 50 ft (15.2 also corrected. In the definition of flexibility analysis (FRFA). The FRFA incorporates the initial regulatory flexibility m) within U.S. EEZ waters 3–50 nm (5.6–80.5 receiving vessel permit, the cross- km) around the CNMI; require that operators reference to receiving vessel permits for analysis (IRFA) prepared in support of the proposed rule, and the analyses completed to of vessels greater than 50 ft (15.2 m) that land pelagic longlining is corrected to the support the action. A summary is provided, BMUS in the CNMI have Federal fishing proper paragraph. as follows. (The preamble to the proposed permits and submit Federal logbooks of their Additional background information rule included a detailed summary of the associated catch and effort. Alternative 2 is more positive than on this final rule may be found in the analyses contained in the IRFA, and that discussion is not repeated in its entirety Alternative 1 for small-vessel commercial, preamble to the proposed rule recreational, and charter fishery participants published on September 8, 2008 (73 FR here.) The need for agency action and the by somewhat maintaining the opportunity for 51992), and is not repeated here. objectives of the action are explained in the viable catch rates at banks within their limited fishing range around the CNMI. Comments and Responses preambles to the proposed rule and final rule. While no comments were received Unlike Alternative 1, Alternative 2 could cause negative impacts on the large-vessel On September 20, 2008, NMFS specifically on the IRFA, one comment was received on the administrative cost of the commercial sector of the fishery through the published a notice of availability and realization of increased operating costs request for public comments on permit. NMFS responded to that comment in the preamble of the final rule, and no necessitated by the requirement that large Amendment 10, including a Draft changes were made to the FRFA as a result vessels fish on banks greater than 50 nm Environmental Assessment (73 FR of the comment. (80.5 km) from the CNMI, although this 49157). The amendment comment impact might be offset initially by higher period ended on October 20, 2008. On Description of Small Entities to Which the bottomfish catch rates at more distant September 8, 2008, NMFS published a Rule Would Apply seamounts that remain open to large vessels. proposed rule (73 FR 51992) that would The preferred alternative would apply to Likely areas for bottomfish fishing over 50 all vessels commercially fishing for nm (80.5 km) from shore are a chain of implement the management measures seamounts, some rising to shallow depths, recommended by the Council in bottomfish in EEZ waters around the CNMI. Given an annual average of 58 known about 200 nm (370 km) west of the Marianas Amendment 10. The proposed rule commercial fish harvesting vessels from Archipelago. As these areas have not been comment period ended on October 23, 2001–05, with an annual average fleet-wide previously fished by the CNMI fleet, there 2008. NMFS received public comment adjusted revenue of $136,827, it is estimated would be a high cost associated with regarding the EA and proposed rule, and that each vessel operator realized an average exploring the bottomfish fishing potential of responds as follows: of $2,359 in annual ex-vessel gross revenues these seamounts and their catch rates are unknown. Comment 1: The initial permit fee from their bottomfish fishing operations. Because each vessel has gross receipts under As compared to the No Action Alternative, should be $100 per vessel to cover and $4.0 million, is independently owned and Alternative 2 would eliminate commercial sustain administrative costs. operated, and is not dominant in its field, all bottomfish fishing by large vessels within Response: The amount of the permit vessels comprising this fishery are deemed to waters 3–50 nm (5.6–80.5 km) around the fee is calculated in accordance with the be small entities under the Small Business CNMI. There may be immediate impacts to procedures of the NOAA Finance Administration’s definition of a small fish vessel operations under this alternative as there may be some large commercial Handbook for determining the harvester. In 2005, 62 vessels less than 40 ft (12.2 m) participated in the CNMI bottomfish bottomfish vessels active within 50 nm (80.5 administrative costs of each special fishery. As many as eleven medium/large km) of the Northern Islands, though none are product or service incurred in vessels (i.e., greater than 40 feet or 12.2 m) believed to be active in waters around the processing the permit. At the time the are believed to have participated in this Southern Islands. This alternative would rule was proposed, NMFS had fishery since 1997. Information from fisheries eliminate the potential renewal or expansion preliminarily determined that a permit officials in the CNMI indicate that there were of the large vessel fishery sector in waters fee of up to $80 was appropriate. six active medium and large vessels in 2006, around the Saipan. Thus, Alternative 2 However, more information about the and one in 2007. would have greater potential than Alternative fishery and administrative costs of 1 for controlling the risk of local depletion Description of Alternatives with Economic of areas around Saipan that are fished by issuing permits indicates that the actual Impacts on Small Businesses small-scale fishermen. A chain of seamounts fee is expected to be approximately $40, Alternative 1 - No Action. parallels the Marianas Archipelago nearly and will be specified on the permit In the short term, fishing operations would 200 nm (370 km) to the west. Some of these application form. be expected to continue their operations. In seamounts rise to shallow depths, but this the longer-term, economic impacts (including chain is poorly charted and the amount of Changes From the Proposed Rule market and non-market impacts) on small- associated bottomfish habitat is not known. There are no changes from the vessel commercial, recreational and charter Whether large vessels would invest time and proposed rule. fishery participants could be negative if money in exploring this chain for bottomfish localized depletion of bottomfish occurs fishing grounds under this alternative is Classification within their limited fishing range. Due to unknown. In the long-term, this alternative their larger vessel sizes, larger-scale would foreclose the opportunity for The Regional Administrator has commercial fishing operations would still commercial bottomfish fishing using large determined that the Bottomfish FMP have access to offshore fishing areas, but vessels in the closed areas. Amendment 10 is necessary for the smaller vessels would not and would likely This alternative would require the conservation and management of see bigger losses. Operators of smaller vessels operators of CNMI-based vessels larger than bottomfish and seamount groundfish already generally participate in more than 50 ft (15.2 m) in length commercially fishing one fishery over the course of a year and for bottomfish in EEZ waters around the and that it is consistent with the would likely shift their bottomfish fishing CNMI to obtain Federal permits and to Magnuson-Stevens Fishery effort to other boat-based fisheries (e.g., submit Federal catch reports. Permit Conservation and Management Act pelagic troll or handline). Whether they eligibility would not be restricted in any way, (Magnuson-Stevens Act), and other would be able to recoup their lost bottomfish and the permit would be renewable on an applicable laws. income or not is unclear, but a disruption of annual basis. It is anticipated that initial

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permit applications would require 0.5 hr per beyond the ability to read and write in preferred alternative. Therefore, NMFS applicant, with renewals requiring an English would be required to fill out the concludes that the preferred alternative best additional 0.5 hr annually. The fee for permit application or logbooks. minimizes the economic impacts on small Federal permits is expected to be Alternative 5 (Preferred) - Prohibit entities consistent with the objectives of the approximately $40 and will be specified in commercial fishing for BMUS by medium Magnuson-Stevens Act and this rulemaking. the permit application. This represents and large vessels within U.S. EEZ waters 0– approximately 1.7 percent of revenues earned 50 nm (0–80.5 km) around CNMI in the area Small Entity Compliance Guide by individuals vessels in the 2001–05 fishery. from the southern boundary of the EEZ Section 212 of the Small Business Alternative 3 - Limit onaga landings to no (south of Rota) to the north latitude of 16 10’ Regulatory Enforcement Fairness Act of 1996 more than 250 lb (113 kg) per trip for any 47’’ (halfway between Farallon de Medinilla states that for each rule or group of related vessel fishing in U.S. EEZ waters beyond 3 to Anatahan) and within EEZ waters 0–10 nm rules for which an agency is required to nm (5.6 km) around the CNMI. (0–18.5 km) around Alamagan Island; require prepare a FRFA, the agency shall publish one Alternative 3 would be expected to yield that medium and large vessels fishing or more guides to assist small entities in beneficial economic impacts for vessels less commercially for BMUS in EEZ waters complying with the rule, and shall designate than or equal to 40 feet that target onaga. around the CNMI carry operating VMS units, such publications as ‘‘small entity They would be expected to maintain their and complete Federal sales reports for any compliance guides.’’ The agency shall opportunities for viable onaga catch rates at BMUS sold in the CNMI; require that explain the actions a small entity is required banks within their limited fishing range, as operators of all vessels fishing commercially to take to comply with a rule or group of the reduced fishing revenues expected with for BMUS in EEZ waters around the CNMI rules. As part of this rulemaking process, a a per-trip limit of 250 lb (113 kg) of onaga have Federal fishing permits and submit small entity compliance guide was prepared would discourage competition from large- Federal logbooks of their associated catch and will be provided to affected small scale commercial onaga fishing operations. and effort. entities. In addition, copies of this final rule Economic impacts on these large-scale The impacts of Alternative 5 on medium/ and the guide are available from the William operations would be adverse as a 250 lb (113 large vessels would be similar to those of L. Robinson(see ADDRESSES) and from kg) trip limit would not yield enough Alternative 2. However, the impacts to the www.fpir.noaa.gov. revenues to cover trip costs and these trips catch rates and ex-vessel revenues of small This final rule contains collection-of- would be expected to become economically vessel fishermen would be more pronounced information requirements subject to the inefficient. This would be expected to as both medium and large commercial PRA. These requirements have been discourage vessels greater than 40 ft (12.2 m) bottomfish vessels over 40 feet (12.2 m) in submitted to OMB for approval. NMFS from entering the fishery. length would be prohibited from fishing will publish a notice when these Alternative 4 - Establish a limited access around Saipan and Alamagan. The general program with Federal permit and reporting absence of medium/large vessels from the requirements have been approved by requirements, for vessels targeting BMUS recent fishery suggests that the area is not OMB and are effective (see DATES). more than 3 nm (5.6 km) around the CNMI. optimal for the profitability of these vessels Permit eligibility would not be Alternative 4 would be likely to have a and fishing in the restricted area may be restricted in any way, and the permit positive economic impact on catch rates and more opportunistic than planned. Therefore, would be renewable on an annual basis. ex-vessel revenues for fishery participants restricting medium/large vessels in the area The initial permit applications will with a documented history of bottomfish may yield only a minimal adverse economic require 0.5 hr per applicant, with fishing in the EEZ, but a negative impact for impact to individual vessels mitigated by renewals requiring an additional 0.5 hr undocumented or future potential profitable opportunities elsewhere. annually. It is estimated that NMFS may participants. Limiting total fishery This alternative would require the participation would be expected to result in operators of all CNMI-based vessels receive and process up to 50 to 125 increased catch rates for qualifying commercially fishing for bottomfish in waters permit applications each year. Thus, the participants, fishing efficiency, and profits around the CNMI to obtain Federal permits total collection-of-information burden to for those who qualify and continue fishing. and to submit Federal catch reports. Permit fishermen for permit applications is Economic impacts on existing (and future) eligibility would not be restricted in any way, estimated at 25 to 62 hours per year. non-qualifiers would be highly adverse with and the permit would be renewable on an NMFS has determined that a permit fee no bottomfish catches or revenues available annual basis. It is anticipated that initial of up to $80 is appropriate to cover the for this group. If limited access permits were permit applications would require 0.5 hr per administrative costs of the permit. The transferable, this alternative would also applicant, with renewals requiring an fee is expected to be approximately $40 create an economic value for these permits as additional 0.5 hr annually. The fee for the original qualifiers could subsequently Federal permits has not been determined, but and will be specified in the permit sell(or lease) them to a new round of it may be approximately $40. This represents application. participants. This would represent a windfall approximately 1.7 percent of revenues earned The final rule will require the profit to the original qualifiers. by individuals vessels in the 2001–05 fishery. operators of all vessels commercially This alternative would require the Based on experience in other fisheries, it is fishing for bottomfish in U.S. EEZ operators of all CNMI-based vessels expected that the time requirement for filling waters around the CNMI to complete commercially fishing for bottomfish in waters out Federal catch reports would be and submit Federal catch reports. The beyond 3 nm around the CNMI to obtain approximately 20 min per vessel per fishing time requirement to complete Federal Federal permits and to submit Federal catch day. No special skills beyond the ability to catch reports is approximately 20 reports. Permit eligibility would not be read and write in English would be required minutes per vessel per fishing day. restricted in any way, and the permit would to fill out the permit application, logbooks, be renewable on an annual basis. It is or sales reports. Assuming that the 50 to 125 vessels anticipated that initial permit applications make 10 to 50 trips per year, and would require 0.5 hr per applicant, with Steps Taken by the Agency to Minimize average 1.2 days per trip, the program renewals requiring an additional 0.5 hr Adverse Impacts will generate in the range of 600 to annually. The fee for Federal permits is Choosing the no-action alternative would 7,500 daily fishing logbooks per year. expected to be approximately $40 and will be yield no economic impact and would be Thus, the total collection-of-information specified in the permit application. This preferred by the potentially impacted vessels. burden estimate for fishing data represents approximately 1.7 percent of However, the no-action alternative could reporting is estimated at 200 to 2,500 revenues earned by individuals vessels in the result in excessive fishing pressure and, in 2001–05 fishery Based on experience in other the worst-case scenario, contribute to hours per year. fisheries, it is expected that the time overfishing which is inconsistent with the The final rule will also require the requirement for filling out Federal catch Magnuson-Stevens Act. All other alternatives operators of medium and large reports would be approximately 20 min per would be more restrictive and would yield commercial bottomfish vessels to vessel per fishing day. No special skills more adverse economic impact than the complete and submit Federal sales

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reports. The time requirement for are active, the total collection-of- Dated: December 3, 2008. completing Federal sales reports is information burden estimate for James W. Balsiger, approximately 35 minutes per vessel per compliance with VMS requirements is Acting Assistant Administrator for Fisheries, fishing trip. Assuming six medium and 24 hours the first year and 12 hours National Marine Fisheries Service. large vessels make 15 trips per year, the annually after that. ■ For the reasons set out in the program will generate approximately 90 Send comments on these or any other preamble, 50 CFR part 665 is amended sales reports per year. Thus, the total aspects of the collection of information as follows: collection-of-information burden to William L. Robinson (see ADDRESSES), estimate for sales data reporting by PART 665—FISHERIES IN THE and by email to fishermen is estimated at 52 hours per WESTERN PACIFIC year. These estimates include time for [email protected] or by fax reviewing instructions, searching to 202–395–7285. ■ 1. The authority citation for part 665 existing data sources, gathering and Notwithstanding any other provision continues to read as follows: maintaining data needed, and of the law, no person is required to Authority: 16 U.S.C. 1801 et seq. completing and reviewing the respond to, and no person shall be ■ 2. In § 665.12 add the definitions of information. subject to penalty for failure to comply ‘‘CNMI commercial bottomfish permit’’, For the medium and large vessel with, a collection of information subject ‘‘Medium vessel’’, and ‘‘Receiving identification requirements, the burden to the requirements of the PRA, unless vessel’’ in alphabetical order; in the is estimated at 45 minutes to paint each that collection of information displays a definition of ‘‘Bottomfish management vessel (15 minutes for each of three currently valid OMB control number. unit species’’ revise the entries for locations on the vessel where marking is longtail snapper and pink snapper; in required), and about $10 for paint and List of Subjects in 50 CFR Part 665 the definition of ‘‘Seamount supplies. Assuming six medium and groundfish’’ revise the entry for large bottomfish vessels are active, the Administrative practice and procedure, American Samoa, Fisheries, armorhead, and revise the definitions of total collection-of-information burden ‘‘Receiving vessel permit’’ and ‘‘Vessel Fishing, Guam, Hawaii, Hawaiian estimate is 4.5 hours and $60. monitoring system unit’’ to read as Natives, Northern Mariana Islands, For the medium and large vessel VMS follows: requirements, the estimated time per Reporting and recordkeeping response is four hours to install a VMS requirements. § 665.12 Definitions. unit, and two hours per year to repair * * * * * and maintain a VMS unit. Assuming six Bottomfish management unit species* medium and large bottomfish vessels * *

Common name Local Name Scientific

* * * * * * *

Longtail snapper Onaga, ula’ula (H); palu-loa (S) Etelis coruscans

* * * * * * *

Pink snapper Opakapaka (H); palu-ena’ena (S); gadao (G) Pristipomoides filamentosus

* * * * * * *

CNMI commercial bottomfish permit taken by other vessels using longline § 665.13 Permits and fees. means the permit required by § 665.61 gear. * * * * * (a)(5) to engage in commercial fishing * * * * * (f) Fees. * * * for bottomfish management unit species (2) * * * Seamount groundfish means the in U.S. EEZ waters around the CNMI. (viii) CNMI commercial bottomfish following species: * * * * * permit. Medium vessel, as used in §§ 665.61 Common name Scientific name * * * * * through 665.72, means any vessel equal ■ 4. In § 665.14, revise paragraphs (a)(1), to or more than 40 ft (12.2 m) and less Armorhead Pseudopentaceros (a)(2)(i), and (c) to read as follows: than 50 ft (15.2 m) in length overall. richardsoni § 665.14 Reporting and recordkeeping. * * * * * * * * * * * * (a) Fishing record forms. (1) Receiving vessel means a vessel that Applicability. The operator of any receives fish or fish products from a * * * * * fishing vessel subject to the fishing vessel, and with regard to a Vessel monitoring system unit (VMS requirements of §§ 665.21, 665.41, vessel holding a permit under unit) means the hardware and software 665.61(a)(2), 665.61(a)(3), 665.61(a)(4), § 665.21(e) that also lands Pacific owned by NMFS, installed on vessels by 665.61(a)(5), 665.81, or 665.602 must Pelagic Management Unit Species taken NMFS, and required to track and maintain on board the vessel an by other vessels using longline gear. transmit the positions of certain vessels. accurate and complete record of catch, Receiving vessel permit means a * * * * * effort, and other data on paper report permit required by § 665.21(e) for a forms provided by the Regional receiving vessel to transship or land ■ 3. In § 665.13, add a new paragraph Administrator, or electronically as Pacific pelagic management unit species (f)(2)(viii) to read as follows: specified and approved by the Regional

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Administrator. All information specified (p) Make a false statement, oral or directly to requirements under this by the Regional Administrator must be written, to an authorized officer, section. Communication charges related recorded on paper or electronically regarding the use, operation, or to any additional equipment attached to within 24 hours after the completion of maintenance of a VMS unit, in violation the VMS unit by the owner or operator each fishing day. The logbook of § 665.19(e)(1). shall be the responsibility of the owner information, reported on paper or (q) Interfere with, impede, delay, or or operator and not NMFS. electronically, for each day of the prevent the installation, maintenance, (e) Permit holder duties. The holder of fishing trip must be signed and dated or repair, inspection, or removal of a VMS a permit subject to this part, and master otherwise authenticated by the vessel unit, in violation of § 665.19(e)(1). of the vessel, must: operator in the manner determined by (r) Interfere with, impede, delay, or (1) Provide opportunity for the SAC to the Regional Administrator, and be prevent access to a VMS unit by a install and make operational a VMS unit submitted or transmitted via an NMFS observer, in violation of after notification. approved method as specified by the § 665.28(f)(4). (2) Carry and continuously operate Regional Administrator, and as required (s) Connect or leave connected the VMS unit on board whenever the by this paragraph (a). additional equipment to a VMS unit vessel is at sea. (2) Timeliness of submission. (i) If without the prior approval of the SAC, (3) Not remove, relocate, or make non- fishing was authorized under a permit in violation of § 665.19(f). operational the VMS unit without prior pursuant to §§ 665.21, 665.41, ■ 7. In § 665.16, add new paragraph approval from the SAC. 665.61(a)(3), 665.61(a)(5), or 665.81, the (e)(2) to read as follows: (f) Authorization by the SAC. The vessel operator must submit the original SAC has authority over the installation logbook form for each day of the fishing § 665.16 Vessel identification. and operation of the VMS unit. The SAC trip to the Regional Administrator * * * * * may authorize the connection or order within 72 hours of the end of each (e) * * * the disconnection of additional fishing trip, except as allowed in (2) A vessel less than 40 ft (12.2 m) equipment, including a computer, to paragraph (a)(2)(iii) of this section. in length registered for use under a any VMS unit when deemed * * * * * CNMI commercial bottomfish permit appropriate by the SAC. (c) Sales report. The operator of any that is in compliance with CNMI ■ 9. In § 665.61, add new paragraph fishing vessel subject to the bottomfish vessel registration and (a)(5) to read as follows: requirements of § 665.41, or the owner marking requirements. § 665.61 Permits. of a medium or large fishing vessel § 665.25 [Redesignated as § 665.29] subject to the requirements of (a)* * * ■ 8. Redesignate § 665.25 as new § 665.61(a)(5), must submit to the * * * * * § 665.19, and revise newly-redesignated Regional Administrator, within 72 hours (5) Commonwealth of the Northern § 665.19 to read as follows: of offloading crustacean or bottomfish Mariana Islands (CNMI) commercial. management unit species, respectively, § 665.19 Vessel monitoring system. The owner of any vessel used to an accurate and complete sales report (a) Applicability. The holder of any of commercially fish for, transship, on a form provided by the Regional the following permits is subject to the receive, or land bottomfish management Administrator. The form must be signed vessel monitoring system requirements unit species shoreward of the outer and dated by the fishing vessel operator. in this part: boundary of the CNMI management * * * * * (1) Hawaii longline limited access subarea must have a permit issued permit issued pursuant to 665.21(b); under this section, and the permit must § 665.22 [Redesignated in part] (2) American Samoa longline limited be registered for use with that vessel. ■ 5. Redesignate paragraphs (o) through entry permit, for vessel size Class C or * * * * * (u) in § 665.22 as paragraphs (m) D, issued pursuant to 665.21(c); ■ 10. In § 665.62, add new paragraphs through (s) in § 665.15. (3) Vessels permitted to fish in (o) through (r) to read as follows: ■ 6. In § 665.15, revise newly Crustaceans Permit Area 1 VMS redesignated paragraphs (m) through (s) Subarea; or § 665.62 Prohibitions. to read as follows: (4) CNMI commercial bottomfish * * * * * permit, if the vessel is a medium or (o) Use a vessel to fish commercially § 665.15 Prohibitions. large bottomfish vessel, issued pursuant for bottomfish management unit species * * * * * to 665.61(a)(5). shoreward of the outer boundary of the (m) Fish for, catch, or harvest (b) VMS unit. Only a VMS unit owned CNMI subarea without a valid CNMI management unit species with longline by NMFS and installed by NMFS commercial bottomfish permit gear without an operational VMS unit complies with the requirement of this registered for use with that vessel, in on board the vessel after installation of subpart. violation of § 665.61(a)(5). the VMS unit by NMFS, in violation of (c) Notification. After a permit holder (p) Use a medium or large vessel to § 665.19(e)(2). subject to this part has been notified by fish for bottomfish management unit (n) Possess management unit species, the SAC of a specific date for species within the CNMI medium and that were harvested after NMFS has installation of a VMS unit on the permit large vessel bottomfish prohibited areas, installed the VMS unit on the vessel, on holder’s vessel, the vessel must carry as defined in § 665.70(b). board that vessel without an operation and operate the VMS unit after the date (q) Retain, land, possess, sell, or offer VMS unit, in violation of 665.19(e)(2). scheduled for installation. for sale, shoreward of the outer (o) Interfere with, tamper with, alter, (d) Fees and charges. During the boundary of the CNMI subarea, damage, disable, or impede the experimental VMS program, the holder bottomfish management unit species operation of a VMS unit or attempt any of a permit subject to this part shall not that were harvested in violation of of the same; or move or remove a VMS be assessed any fee or other charges to § 665.62(p), except that bottomfish unit without the prior permission of the obtain and use a VMS unit, including management unit species that are SAC in violation of § 665.19(e)(3). the communication charges related harvested legally may be transferred to

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a receiving vessel shoreward of the Point N. lat. E. long. DEPARTMENT OF COMMERCE outer boundary of the CNMI medium and large vessel bottomfish prohibited GU-1-A 14° 16′ 144° 17′ National Oceanic and Atmospheric area as defined in § 665.70(b). Administration GU-1-B 13° 50′ 143° 52′ (r) Falsify or fail to make, keep, 50 CFR Part 665 maintain, or submit a Federal logbook as GU-1-C 13° 17′ 143° 46′ required under § 665.14(a) when using a vessel to engage in commercial fishing GU-1-D 12° 50′ 143° 54′ RIN 0648–AV29 for bottomfish management unit species ° ′ ° ′ shoreward of the outer boundary of the GU-1-E 12 30 144 14 Fisheries in the Western Pacific; CNMI subarea in violation of Crustacean Fisheries; Deepwater GU-1-F 12° 25′ 144° 51′ § 665.14(a). Shrimp ° ′ ° ′ ■ 11. In § 665.69, remove paragraph GU-1-G 12 57 145 33 ’ AGENCY: National Marine Fisheries (a)(7) and redesignate paragraph (a)(8) as Service (NMFS), National Oceanic and GU-1-H 13° 12′ 145° 43′ paragraph (a)(7), and revise paragraphs Atmospheric Administration (NOAA), Commerce. (a) introductory text, (a)(6), and (c) to GU-1-I 13° 29′ 44″ 145° 48’ 27″ read as follows: ACTION: Final rule; correction. GU-1-A 14° 16’ 144° 17’ § 665.69 Management subareas. SUMMARY: This document contains a correction to the final regulations that (a) The bottomfish fishery (b) CNMI medium and large vessel management area is divided into were published in the Federal Register bottomfish prohibited areas. A medium on November 21, 2008. This correction subareas with the following or large vessel of the United States may designations and boundaries: revises the amendatory instruction in not be used to fish commercially for the final rule to accurately reflect * * * * * bottomfish management unit species in paragraph designation in the section on (6) CNMI Management Subarea means the following areas: permit fees. the EEZ seaward of the CNMI. The (1) CNMI Southern Islands (Area NM– DATES: The amendment to § 665.13 will CNMI Management Subarea is further 1). The CNMI Southern Islands require approval by the Office of divided into subareas with the following prohibited area is defined as the waters Management and Budget (OMB) under designations and boundaries: of the U.S. EEZ surrounding the CNMI the Paperwork Reduction Act (PRA). (i) CNMI Inshore Area means that that are enclosed by straight lines When OMB approval is received, the portion of the EEZ within 3 nautical connecting the following coordinates in effective date will be announced in the miles of the shoreline of the CNMI. the order listed: Federal Register. (ii) CNMI Offshore Area means that Point N. lat. E. long. FOR FURTHER INFORMATION CONTACT: portion of the EEZ seaward of 3 nautical Brett Wiedoff, NMFS Pacific Islands miles from the shoreline of the CNMI. NM–1–A 14° 9′ 144° 15′ Region, Sustainable Fisheries, 808–944– 2272. * * * * * ° ′ ″ ° ′ NM–1–B 16 10 47 145 12 SUPPLEMENTARY INFORMATION: The final (c) The outer boundary of each fishery rule published on November 21, 2008, management area is a line drawn in NM–1–C 16° 10′ 47″ 146° 53’ designated deepwater shrimp of the such a manner that each point on it is ° ′ ° ′ genus Heterocarpus as management unit 200 nautical miles from the baseline NM–1–D 14 48 146 33 species (MUS), and requires Federal from which the territorial sea is NM–1–E 13° 27′ 145° 43′ permits and data reporting for measured, or is coterminous with deepwater shrimp fishing in Federal adjacent international maritime ° ′ ° ′ NM–1–A 14 9 144 15 waters of the western Pacific (73 FR boundaries, except that the outer 70603). Also on November 21, 2008, boundary of the CNMI Inshore Area is (2) CNMI Alamagan Island (Area NM– NMFS published another final rule that 3 nautical miles from the shoreline. The 2). The CNMI Alamagan Island designated three species of pelagic boundary between the fishery prohibited area is defined as the waters squid as management unit species, and management areas of Guam and the of the U.S. EEZ surrounding the CNMI established permitting and reporting CNMI extends to those points which are that are enclosed by straight lines requirements for squid jig fishing equidistant between Guam and the connecting the following coordinates in vessels (73 FR 70600). In the island of Rota in the CNMI. the order listed: amendatory instruction for § 665.13 in ■ 12. Revise § 665.70 to read as follows: both final rules, an identical paragraph Point N. lat. E. long. designation was assigned for both new § 665.70 Bottomfish fishery area permits fees. management. ° ′ ° ′ NM–2–A 17 26 145 40 This correction makes a change to the (a) Guam large vessel bottomfish NM–2–B 17° 46′ 145° 40′ amendatory instruction in the prohibited area (Area GU–1). A large deepwater shrimp final rule to vessel of the United States may not be NM–2–C 17° 46′ 146° 00′ accurately designate the paragraphs in used to fish for bottomfish management § 665.13. This change is necessary to unit species in the Guam large vessel NM–2–D 17° 26′ 146° 00′ prevent duplicate paragraph bottomfish prohibited area, defined as designation. In the amendatory ° ′ ° ′ the U.S. EEZ waters surrounding Guam NM–2–A 17 26 145 40 instruction for § 665.13, the phrase, that are enclosed by straight lines ‘‘...and add a new paragraph connecting the following coordinates in [FR Doc. E8–29512 Filed 12–9–08; 4:15 pm] (f)(2)(vi)...’’, is revised to read ‘‘...and the order listed: BILLING CODE 3510–22–S add a new paragraph (f)(2)(vii)....’’

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Correction § 665.13 Permits and fees. (v) Main Hawaiian Islands non- Accordingly, the final rule * * * * * commercial bottomfish permit. amendatory instruction published on (f) * * * * * * * * November 21, 2008 (73 FR 70603), is (2) * * * (vii) Crustaceans permit. corrected to read as follows: (i) Hawaii longline limited access * * * * * § 665.13 [Amended] permit. Dated: December 5, 2008. On page 70604, column 3, the third (ii) Mau Zone limited access permit. Emily H. Menashes, amendatory instruction is corrected to read as follows: (iii) Coral reef ecosystem special Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. ■ 3. In § 665.13, revise paragraphs permit. (f)(2)(i) through (f)(2)(v), and add a new (iv) American Samoa longline limited [FR Doc. E8–29496 Filed 12–11–08; 8:45 am] paragraph (f)(2)(vii) to read as follows: access permit. BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 240

Friday, December 12, 2008

This section of the FEDERAL REGISTER published its final rule on the current significant obstacle to any firm in contains notices to the public of the proposed SIMA system (70 FR 72373). Under the completing this requirement. However, issuance of rules and regulations. The final rule, the system expires on March should a company need to apply for an purpose of these notices is to give interested 21, 2009, unless extended upon review ID or license non-electronically, a fax/ persons an opportunity to participate in the and notification in the Federal Register. phone option will be available at rule making prior to the adoption of the final The purpose of the SIMA system is to rules. Commerce during regular business provide steel producers, steel hours. There is no cost to register for a consumers, importers, and the general company-specific ID user code and no DEPARTMENT OF COMMERCE public with accurate and timely cost to file for the license. Each license information on anticipated imports of form is expected to take less than 10 International Trade Administration certain steel products. Import licenses, minutes to complete using much of the obtained through the Internet-based same information used to complete the 19 CFR Part 360 SIMA licensing system, are required on Customs Entry Summary U.S. imports of basic steel mill [Docket Number 0809261282–81283–01] documentation. This is the one products. Aggregate import data additional requirement of the importers RIN 0625–AA82 obtained from the licenses is updated or their representative to fulfill U.S. weekly and posted on the SIMA Web entry requirements to import each Steel Import Monitoring and Analysis site monitor. Details of the current covered steel product shipment. System system can be found at http:// Commerce estimates that fewer than five ia.ita.doc.gov/steel/license/. AGENCY: Import Administration, percent of the licenses would be filed by Proposal: The Department proposes to brokerage companies or other International Trade Administration, extend the SIMA system beyond its Commerce. businesses that would be considered current expiration date for an additional small entities. Therefore, Commerce ACTION: Proposed rule. period of four years (see 19 CFR part estimates that the likely aggregate 360). license costs attributable to small SUMMARY: The Department of Commerce All comments responding to this entities would be one percent of the publishes this proposed rule to request notice will be a matter of public record estimated total $2,000,000 cost to all public comment on modifications to the and available for public inspection and steel importers, or $20,000 would Steel Import Monitoring and Analysis copying at Import Administration’s represent the cost that small entities (SIMA) System. These modifications are Central Records Unit, Room 1117, will incur as a result of this proposed proposed to extend the current SIMA between the hours of 8:30 a.m. and 5 rule. system until March 21, 2013. This p.m. on business days. extension would continue the Paperwork Reduction Act. This Department’s ability to track steel Classification proposed rule contains collection-of- imports and make them publicly Regulatory Flexibility Act. The Chief information requirements subject to available in advance of the full trade Counsel for Regulation of the review and approval by OMB under the data release. Department of Commerce certified to Paperwork Reduction Act (PRA). These DATES: Comments must be submitted on the Chief Counsel for Advocacy of the requirements have been approved by or before 5 p.m. EST, January 12, 2009. Small Business Administration that this OMB (OMB No.: 0625–0245; Expiration Date: 09/30/2011). Public reporting for ADDRESSES: Comments on the SIMA proposed rule, if adopted, would not have a significant economic impact on this collection of information is system may be submitted through any of estimated to be less than 10 minutes per the following: a substantial number of small entities as • that term is defined in the Regulatory response, including the time for Mail: Kelly Parkhill, Director for reviewing instructions, and completing Industry Support and Analysis, Import Flexibility Act, 5 U.S.C. 601 et seq. A summary of the factual basis for this and reviewing the collection of Administration, Room 3713, information. Department of Commerce, 14th and certification is below. This proposed rule will not have a Paperwork Reduction Act Data: Constitution Ave., NW., Washington, significant economic impact on a OMB Number: 0625–0245. DC 20230. substantial number of companies. ITA Number: ITA–4141P. • E-mail: [email protected]. Companies are already familiar with the Type of Review: Regular Submission. Please state ‘‘Comments on the 2008 licensing of certain steel products under Affected Public: Business or other for- Proposed Rule’’ in the subject line. • the current system. In most cases, profit. Federal e-Rulemaking portal: brokerage companies will apply for the Estimated Number of Registered http://www.regulations.gov. license for the steel importers. Most Users: 3,500. FOR FURTHER INFORMATION CONTACT: For brokerage companies that are currently Estimated Time per Response: Less information on the SIMA system, please involved in filing documentation for than 10 minutes. contact Kelly Parkhill (202) 482–3791; importing goods into the U.S., are Estimated Total Annual Burden Julie Al-Saadawi (202) 482–1930. accustomed to Customs and Border Hours: 100,000 hours. SUPPLEMENTARY INFORMATION: An Protection’s automated systems. Today, Estimated Total Annual Costs: interim final rule revising part 360 was more than 99% of the Customs filings $2,000,000. published in the Federal Register March are handled electronically. Therefore, Notwithstanding any other provision 11, 2005, 70 FR 12136. On December 5, the Web-based nature of this simple of law, no person is required to respond 2005, the Department of Commerce license application should not be a to nor shall a person be subject to a

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penalty for failure to comply with a DEPARTMENT OF HEALTH AND FR 3042), the agency withdrew an collection of information subject to the HUMAN SERVICES additional nine outstanding proposed requirements of the Paperwork rules. Reduction Act unless that collection of Food and Drug Administration FDA published a notice in the Federal information displays a current valid Register of April 22, 2003 (68 FR OMB Control Number. 21 CFR Chapter I 19766), announcing its intent to [Docket No. FDA–2008–N–0622] withdraw 84 proposed rules and other Executive Order 12866 proposed actions that had published in the Federal Register more than 5 years This rule has been determined to be Withdrawal of Certain Proposed Rules ago, but that had never been finalized. significant for purposes of Executive and Other Proposed Actions Included in this list were 19 proposed Order 12866. AGENCY: Food and Drug Administration, rules that were originally proposed for HHS. Executive Order 13132 withdrawal in 1991, but at that time the ACTION: Notice of withdrawal. agency decided to defer its decision to This rule does not contain policies withdraw or finalize them until a later SUMMARY: The Food and Drug with federalism implications as that date. In the Federal Register of Administration (FDA) is announcing the term is defined in EO 13132. November 26, 2004 (69 FR 68831), the withdrawal of a certain advance notice agency withdrew 81 proposed rules and List of Subjects in 19 CFR Part 360 of proposed rulemaking (ANPRM) and other proposed actions. proposed rules (NPRMs) that published The agency has conducted another Administrative practice and in the Federal Register more than 5 review of its regulations process and procedure, Business and industry, years ago. These proposals are no longer found withdrawal is justified for four Imports, Reporting and recordkeeping considered viable candidates for final proposals. requirements, Steel. action at this time. For reasons discussed in the DATES: The proposals identified in this II. NPRMs and ANPRMs To Be preamble, we propose amending 19 CFR document are withdrawn as of Withdrawn 360 as follows: December 12, 2008. Title: Labeling Declaration for FD&C FOR FURTHER INFORMATION CONTACT: Yellow No. 6 and FD&C Yellow No. 5; PART 360—STEEL IMPORT Amendment of Standard of Identity for MONITORING AND ANALYSIS SYSTEM For Center for Drug Evaluation and Research actions: Michael D. Cheese Product (Proposed Rule, 92N– Bernstein, Office of Regulatory 0334 (60 FR 37611, July 21, 1995)) 1. The authority citation for part 360 Reason: Since the publication of this continues to read as follows: Policy, Center for Drug Evaluation and Research, Food and Drug proposal, the underlying science and Authority: 13 U.S.C. 301(a) and 302. Administration, 10903 New economic analyses have become Hampshire Ave., Bldg. 51, Rm. outdated. 2. Section 360.105 is revised to read 6240, Silver Spring, MD 20993– Title: Over-the-Counter Drug Products as follows. 0002, 301–796–3478. Containing Phenylpropanolamine; § 360.105 Duration of the steel import For Center for Food Safety and Required Labeling (Proposed Rule, 95N– licensing requirement. Nutrition actions: Felicia Ellison, 0060 (61 FR 5912, February 14, 1996)) Center for Food Safety and Applied Reason: The agency’s ‘‘Over-the- The licensing program will be in Nutrition (HFS–265), Food and Counter Drug Products Containing effect through March 21, 2013, but may Drug Administration, 5100 Paint Phenylpropanolamine; Required be extended upon review and Branch Pkwy., College Park, MD Labeling’’ (Proposed Rule, 95N–0060 notification in the Federal Register 20740, 301–436–1264. (61 FR 5912, February 14, 1996)) has prior to this expiration date. Licenses For all other actions: Erik Mettler, been superseded by the issuance of a will be required on all subject imports Office of the Commissioner, Food new proposed rule entitled entered during this period, even if the and Drug Administration, 10903 ‘‘Phenylpropanolamine-Containing Drug entry summary documents are not filed New Hampshire Ave., WO1, Rm. Products for Over-the-Counter Human until after the expiration of this 4324, Silver Spring, MD 20993, Use; Tentative Final Monographs’’ program. The licenses will be valid for 301–796–4830. (1976N–0052N and 1981N–0022 (70 FR 10 business days after the expiration of SUPPLEMENTARY INFORMATION: 75988, December 22, 2005)). Title: Reinvention of Administrative this program to allow for the final filing I. Background of required Customs documentation. Procedures Regulations (ANPRM, 96N– In 1990, the Food and Drug 0163 (61 FR 28116, June 4, 1996)) Dated: November 26, 2008. Administration (FDA) began the process Reason: The ANPRM requested Christopher A. Padilla, of conducting periodic, comprehensive comments on whether there should be Under Secretary for International Trade. reviews of its regulations process that possible changes to various existing [FR Doc. E8–28683 Filed 12–11–08; 8:45 am] included reviewing the backlog of administrative regulations under the BILLING CODE 3510–DS–P ANPRMs, notices of proposed ‘‘Reinventing Government’’ initiative. rulemaking, and other notices for which Since publication, some of the no final action or withdrawal notice had regulations have been addressed in been issued. In the Federal Register of separate rulemakings. The remaining December 30, 1991 (56 FR 67440), FDA regulations are not under current issued its first notice withdrawing 89 consideration for rulemaking. proposed rules that had published Title: Marketing Exclusivity and before December 31, 1985, but had Patent Provisions for Certain Antibiotic never been finalized. Then again, in the Drugs (Proposed Rule, 99N–3088 (65 FR Federal Register of January 20, 1994 (59 3623, January 24, 2000))

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Reason: The provision of law which ENVIRONMENTAL PROTECTION http://www.regulations.gov is an ‘‘Marketing Exclusivity and Patent AGENCY ‘‘anonymous access’’ system, and EPA Provisions for Certain Antibiotic Drugs’’ will not know your identity or contact (Proposed Rule) was intended to 40 CFR Part 52 information unless you provide it in the implement, section 125(d) of the [EPA–R09–OAR–2008–0863; FRL–8751–5] body of your comment. If you send e- Medicare Modernization Act (Public mail directly to EPA, your e-mail Law 105–115), was superseded by the Revisions to the California State address will be automatically captured enactment of Public Law 110–379 (S. Implementation Plan, Approval of the and included as part of the public 3560) on October 8, 2008, which Ventura County Air Pollution Control comment. If EPA cannot read your included new provisions on marketing District—Reasonably Available Control comment due to technical difficulties exclusivity and patent provisions for Technology Analysis and cannot contact you for clarification, certain antibiotic drugs. EPA may not be able to consider your AGENCY: Environmental Protection comment. The withdrawal of the proposals Agency (EPA). Docket: The index to the docket for identified in this document does not ACTION: Proposed rule. this action is available electronically at preclude the agency from reinstituting http://www.regulations.gov and in hard rulemaking concerning the issues SUMMARY: EPA is proposing to approve copy at EPA Region IX, 75 Hawthorne addressed in the proposals listed in the revisions to the Ventura County Air Street, San Francisco, California. While previous paragraphs. Should we decide Pollution Control District (VCAPCD) all documents in the docket are listed in to undertake such rulemakings in the portion of the California State the index, some information may be future, we will re-propose the actions Implementation Plan (SIP). These publicly available only at the hard copy and provide new opportunities for revisions concern the District’s analysis location (e.g., copyrighted material), and of whether its rules meet Reasonably comment. Furthermore, this notice is some may not be publicly available in Available Control Technology (RACT) only intended to address the specific either location (e.g., CBI). To inspect the under the 8-hour ozone National actions identified in this document, and hard copy materials, please schedule an Ambient Air Quality Standard appointment during normal business not any other pending proposals that the (NAAQS). We are approving the agency has issued or is considering. hours with the contact listed in the FOR analysis under the Clean Air Act as FURTHER INFORMATION CONTACT section. The agency notes that withdrawal of amended in 1990 (CAA or the Act). We FOR FURTHER INFORMATION CONTACT: a proposal does not necessarily mean are taking comments on this proposal Stanley Tong, EPA Region IX, (415) that the preamble statement of the and plan to follow with a final action. 947–4122, [email protected]. proposal no longer reflects the current DATES: Any comments must arrive by SUPPLEMENTARY INFORMATION: position of FDA on the matter January 12, 2009. addressed. You may wish to review the Throughout this document, ‘‘we,’’ ‘‘us’’ ADDRESSES: Submit comments, and ‘‘our’’ refer to EPA. agency’s Web site (http://www.fda.gov) identified by docket number EPA–R09– for any current guidance on the matter. OAR–2008–0863, by one of the Table of Contents III. Withdrawal of the Proposed Rules following methods: I. The State’s Submittal 1. Federal eRulemaking Portal: A. What document did the State submit? and ANPRM http://www.regulations.gov. Follow the B. Are there other versions of this document? For the reasons described in this on-line instructions. 2. E-mail: [email protected]. C. What is the purpose of the submitted document, FDA is withdrawing the RACT SIP analysis? aforementioned proposed rules and 3. Mail or deliver: Andrew Steckel II. EPA’s Evaluation and Action ANPRM. (Air-4), U.S. Environmental Protection A. How is EPA evaluating the RACT SIP Agency Region IX, 75 Hawthorne Street, analysis? Dated: December 3, 2008. San Francisco, CA 94105–3901. B. Does the analysis meet the evaluation Jeffrey Shuren, Instructions: All comments will be criteria? Associate Commissioner for Policy and included in the public docket without C. EPA recommendations to strengthen the Planning. change and may be made available SIP D. Public Comment and Final Action [FR Doc. E8–29331 Filed 12–11–08; 8:45 am] online at http://www.regulations.gov, III. Statutory and Executive Order Reviews BILLING CODE 4160–01–S including any personal information provided, unless the comment includes I. The State’s Submittal Confidential Business Information (CBI) or other information whose disclosure is A. What document did the State submit? restricted by statute. Information that Table 1 lists the document addressed you consider CBI or otherwise protected by this proposal with the date that it should be clearly identified as such and was adopted by the local air agency and should not be submitted through submitted by the California Air http://www.regulations.gov or e-mail. Resources Board.

TABLE 1—SUBMITTED DOCUMENT

Local agency Document Adopted Submitted

VCAPCD ...... 2006 Reasonably Available Control Technology Analysis ...... 06/27/06 01/31/07

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This submittal became complete by The submitted document provides required to analyze RACT for all sources operation of law on July 31, 2007. VCAPCD’s analysis of their RACT rules that emit or have the potential to emit for the 8-hour NAAQS for ozone. EPA’s B. Are there other versions of this at least 100 tons per year (tpy) of VOC technical support document (TSD) has document? or NOX. VCAPCD staff searched their more information about VCAPCD’s permitting database for all facilities that There is no previous version of this RACT analysis. emitted at least 25 tpy of VOC or NOX, document in the SIP. II. EPA’s Evaluation and Action identified approximately 27 such C. What is the purpose of the submitted facilities, and listed them in Table B of RACT SIP analysis? A. How is EPA evaluating the RACT SIP their staff report. Table B also provides analysis? a matrix of the major sources of VOC VOCs and NOX help produce ground- level ozone and smog, which harm Rules, guidance and policy and NOX emissions in Ventura County human health and the environment. documents that we use to evaluate and the district rules applicable to those Section 110(a) of the CAA requires whether the analysis fulfills RACT facilities. We reviewed the California States to submit regulations that control include the following: Air Resources Board’s (CARB) emissions VOC and NOX emissions. Section 1. Final Rule to Implement the 8-Hour database and did not identify any major 172(c)(1) and 182 require areas that are Ozone National Ambient Air Quality sources in VCAPCD for which there was designated as moderate or above for Standard (70 FR 71612; November 29, no corresponding District rule. ozone non-attainment to adopt RACT. 2005). Generally, VCAPCD’s certification is The VCAPCD falls under this 2. Letter from William T. Harnett to based on the District’s conclusion that requirement as it is designated as a Regional Air Division Directors, (May District rules met RACT because their moderate ozone non-attainment area 18, 2006), ‘‘RACT Qs & As—Reasonably rule development process requires them under the 8-hour NAAQS for ozone (40 Available Control Technology (RACT) to analyze CARB and EPA publications, CFR 81.305; 69 FR 23858, at 23889, Questions and Answers’’. including CTGs, to assess the feasibility April 30, 2004). On May 20, 2008, EPA 3. State Implementation Plans, and the cost of control techniques, and granted California’s request for General Preamble for the California State regulations require them voluntary reclassification of the Ventura Implementation of Title I of the Clean to apply RACT and Best Available County ozone non-attainment area from Air Act Amendments of 1990 (57 FR Retrofit Technology (BARCT) because ‘‘moderate’’ to ‘‘serious’’. (73 FR 29073). 13498; April 16, 1992). VCAPCD is classified as a severe ozone Therefore, under both the 2004 4. RACT SIPs, Letter dated March 9, non-attainment area for the State ozone classification as a moderate ozone non- 2006 from EPA Region IX (Andrew standard. Based on a comparison of a attainment area, and the 2008 Steckel) to CARB (Kurt Karperos) sampling of VCAPCD’s rules with rules reclassification as a serious ozone non- describing Region IX’s understanding of in other air districts and States, we attainment area, the VCAPCD must, at a what constitutes a minimally acceptable conclude that the VCAPCD rules meet minimum, adopt RACT-level controls RACT SIP. RACT. for sources covered by a Control 5. RACT SIPs, Letter dated April 4, Table A–2 of VCAPCD’s staff report Techniques Guidelines (CTG) document 2006 from EPA Region IX (Andrew and for any major non-CTG source. EPA Steckel) to CARB (Kurt Karperos) listing includes a listing of source categories evaluated VCAPCD’s submittal based on EPA’s current CTGs, ACTs, and other and CTG/ACTs for which there are no a moderate ozone non-attainment area documents which may help to establish applicable District Rules and no classification since the District adopted RACT. stationary sources within the District. its 2006 certification based on this 6. Comment letter dated June 5, 2006 The table lists not only CTGs, but also classification. We note, however, that from EPA Region IX (Andrew Steckel) to ACTs and other documents relevant to the VCAPCD still has an obligation to VCAPCD (Chuck Thomas) on the 8-hour establishing RACT at major sources. submit a RACT SIP certification for the Ozone Reasonably Available Control Negative declarations are only required serious classification. Technology—State Implementation Plan for CTG source categories for which the Section IV.G. of EPA’s final rule to (RACT SIP) Analysis, draft staff report District has no sources covered by the implement the 8-hour ozone NAAQS dated May 2006. CTGs. A negative declaration is not (70 FR 71612, November 29, 2005) required for ACTs or for major non-CTG discusses RACT requirements. It states B. Does the analysis meet the evaluation source categories. Table 1 below lists in part that where a RACT SIP is criteria? the CTG source categories that remain required, State SIPs implementing the 8- VCAPCD’s staff report included a after excluding the ACTs and non-CTG hour standard generally must assure listing of all CTG source categories and source categories from VCAPCD’s Table that RACT is met, either through a matched those categories with the A–2. EPA is acting on the negative certification that previously required corresponding District rule which declarations listed in Table 1 below RACT controls represent RACT for 8- implemented RACT. Given its instead of VCAPCD’s Table A–2 which hour implementation purposes or designation as a moderate ozone non- includes both CTGs and non-CTG through a new RACT determination. attainment area, VCAPCD was also source categories.

TABLE 1—VCAPCD NEGATIVE DECLARATIONS

CTG source category CTG reference document

Automobile Coatings; Metal Coil, Container, and EPA–450/2–77–008—Control of Volatile Organic Emissions from Existing Stationary Closure. Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. Wood Coating ...... EPA–450/2–78–032—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume VII: Factory Surface of Flat Wood Paneling. Large Appliances, Surface Coating ...... EPA–450/2–77–034—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume V: Surface Coating of Large Appliances.

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TABLE 1—VCAPCD NEGATIVE DECLARATIONS—Continued

CTG source category CTG reference document

Magnetic Wire ...... EPA–450/2–77–033—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume IV: Surface Coating of Insulation of Magnet Wire. Synthetic Organic Chemical ...... EPA–450/3–84–015—Control of VOC Emissions from Air Oxidation Processes in Synthetic Or- ganic Manufacturing Industry. EPA–450/4–91–031—Control of VOC Emissions from Reactor Processes and Distillation Op- erations in SOCMI. Pharmaceutical Products ...... EPA–450/2–78–029—Control of Volatile Organic Emissions from Manufacture of Synthesized Pharmaceutical Products. Rubber Tires ...... EPA–450/2–78–030—Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires. Polyester Resin ...... EPA–450/3–83–006—Control of VOC Fugitive Emissions from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. EPA–450/3–83–008—Control of VOC Emissions from Manufacture of High-Density Poly- ethylene, Polypropylene, and Polystyrene Resins.

VCAPCD’s staff report indicates the D. Public Comment and Final Action • Does not have Federalism District has a large agricultural industry Because EPA believes the submitted implications as specified in Executive and that agricultural pesticide use is a analysis fulfills all relevant Order 13132 (64 FR 43255, August 10, substantial source of VOCs in the requirements, we are proposing to fully 1999); • county. The District points out, approve it as described in section Is not an economically significant however, that agricultural pesticide 110(k)(3) of the Act. We will accept regulatory action based on health or usage is regulated by the State of comments from the public on this safety risks subject to Executive Order California and not under the District’s proposal for the next 30 days. Unless we 13045 (62 FR 19885, April 23, 1997); jurisdiction. EPA agrees the California receive convincing new information • Is not a significant regulatory action Department of Pesticide Regulation during the comment period, we intend subject to Executive Order 13211 (66 FR (DPR), and not the VCAPCD, has to publish a final approval action that 28355, May 22, 2001); jurisdiction over pesticide regulations in will incorporate this document into the • Is not subject to requirements of California. VCAPCD is not required, federally enforceable SIP. section 12(d) of the National therefore, to adopt RACT rules for these Technology Transfer and Advancement activities. III. Statutory and Executive Order Act of 1995 (15 U.S.C. 272 note) because Reviews VCAPCD’s RACT SIP analysis was application of those requirements would made available for public comment Under the Clean Air Act, the be inconsistent with the Clean Air Act; prior to being adopted by the District. Administrator is required to approve a and The District did not receive any public SIP submission that complies with the • Does not provide EPA with the comments during the public comment provisions of the Act and applicable discretionary authority to address, as period. We propose to find that the Federal regulations. 42 U.S.C. 7410(k); appropriate, disproportionate human RACT SIP analysis performed by the 40 CFR 52.02(a). Thus, in reviewing SIP health or environmental effects, using VCACPD is reasonable and submissions, EPA’s role is to approve practicable and legally permissible demonstrates their rules meet RACT. state choices, provided that they meet methods, under Executive Order 12898 We also propose to find that the analysis the criteria of the Clean Air Act. (59 FR 7629, February 16, 1994). is consistent with the CAA, EPA Accordingly, this action merely approves state law as meeting Federal In addition, this rule does not have regulations and the relevant policy and tribal implications as specified by guidance documents listed above. The requirements and does not impose additional requirements beyond those Executive Order 13175 (65 FR 67249, TSD has more information on our November 9, 2000), because the SIP is evaluation. imposed by state law. For that reason, this action: not approved to apply in Indian country C. EPA Recommendation To Strengthen • Is not a ‘‘significant regulatory located in the state, and EPA notes that the SIP action’’ subject to review by the Office it will not impose substantial direct of Management and Budget under costs on tribal governments or preempt The TSD describes recommendations Executive Order 12866 (58 FR 51735, tribal law. for further strengthening the VCAPCD October 4, 1993); List of Subjects in 40 CFR Part 52 SIP by reviewing and tightening • Does not impose an information controls in the following rules as collection burden under the provisions Environmental protection, Air appropriate: Rule 71.3, ‘‘Transfer of of the Paperwork Reduction Act (44 pollution control, Intergovernmental Organic Reactive Compound Liquids’’; U.S.C. 3501 et seq.); relations, Nitrogen dioxide, Ozone, Rule 74.26, Crude Oil Storage, • Is certified as not having a Reporting and recordkeeping Degassing Operations; and Rule 74.27, significant economic impact on a requirements, Volatile organic Gasoline and ROC Liquid Storage Tank substantial number of small entities compounds. Degassing Operations. under the Regulatory Flexibility Act (5 Authority: 42 U.S.C. 7401 et seq. EPA further notes that due to the U.S.C. 601 et seq.); recent reclassification of VCAPCD to a • Does not contain any unfunded Dated: November 20, 2008. serious ozone non-attainment area, it mandate or significantly or uniquely Jane Diamond, will need to certify in a future action affect small governments, as described Acting Regional Administrator, Region IX. that District rules meet CTGs issued in the Unfunded Mandates Reform Act [FR Doc. E8–29468 Filed 12–11–08; 8:45 am] since 2006. of 1995 (Pub. L. 104–4); BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION under FOR FURTHER INFORMATION see the SUPPLEMENTARY INFORMATION AGENCY CONTACT. section of this document. FOR FURTHER INFORMATION CONTACT: 40 CFR Part 158 and 161 List of Subjects in 40 CFR Part 158 and 161 Monica DeLong at 202–418–1337. [EPA–HQ–OPP–2008–0110; FRL–8358–2] Environmental protection, SUPPLEMENTARY INFORMATION: This is a RIN 2070–2070–AD30 Administrative practice and procedure, summary of the Commission’s Order, Agricultural commodities, Pesticides DA 08–2576, which was adopted and Data Requirements for Antimicrobial and pests, Reporting and recordkeeping released on November 26, 2008. The Pesticides; Extension of Comment requirements. complete text of this document is Period available for inspection and copying Dated: December 5, 2008. during normal business hours in the AGENCY: Environmental Protection James B. Gulliford, FCC Reference Information Center, Agency (EPA). Assistant Administrator for Prevention, Portals II (Room CY–A257), 445 12th ACTION: Proposed rule; extension of Pesticides, and Toxic Substances. Street, SW., Washington, DC 20554. The comment period. [FR Doc. E8–29477 Filed 12–11–08; 8:45 am] complete text of the Order and related BILLING CODE 6560–50–S Commission documents may be SUMMARY: EPA issued a proposed rule in purchased from the Commission’s copy the Federal Register of October 8, 2008 contractor, Best Copy and Printing, Inc., proposing data requirements for 445 12th Street, SW., Room CY–B402, antimicrobial pesticides. EPA received FEDERAL COMMUNICATIONS Washington, DC 20554, or you may two requests to extend the comment COMMISSION contact BCPI at its Web site http:// period on the proposed rule. Today’s 47 CFR Chapter 1 www.BCPIWEB.com, or by calling (800) document extends the comment period 378–3160, facsimiles (202) 488–5563. for 90 days, from January 6, 2009 to [DA 08–2576; RM No. 11497] When ordering documents from BCPI April 6, 2009. please provide the appropriate FCC DATES: Comments, identified by docket Petition for Rulemaking Regarding Exclusivity Arrangements Between document number, for example, DA– identification (ID) number EPA–HQ– 2576. The Order is available on the OPP–2008–0110 must be received on or Commercial Wireless Carriers and Handset Manufacturers Commission’s Web site: http:// before April 6, 2009. hraunfoss.fcc.gov/edocs_public/ ADDRESSES: Follow the detailed AGENCY: Federal Communications attachmatch/FCC-08-7-164A1.doc. instructions as provided under Commission. Pursuant to sections 1.415 and 1.419 ADDRESSES in the Federal Register ACTION: Proposed rule; extension of of the Commission’s rules, 47 CFR document of October 8, 2008. comment period. 1.415, 1.419, interested parties may file FOR FURTHER INFORMATION CONTACT: comments and reply comments on or Kathryn Boyle, Field and External SUMMARY: In this document, the before the dates indicated on the first Affairs Division (7506P), Office of Commission extends the deadlines for page of this document. Comments may Pesticide Programs, Environmental filing comments and reply comments be filed using: (1) The Commission’s Protection Agency, 1200 Pennsylvania concerning the Rural Cellular Electronic Comment Filing System Ave., NW., Washington, DC 20460– Association’s (RCA’s) petition for (ECFS), (2) the Federal Government’s 0001; mailcode 7506P; telephone rulemaking on the effects of exclusive eRulemaking Portal, or (3) by filing number: 703.305.6304; fax number: arrangements between commercial paper copies. See Electronic Filing of 703.305.5884; e-mail address: wireless carriers and handset Documents in Rulemaking Proceedings, [email protected]. manufacturers. 63 FR 24121 (1998). SUPPLEMENTARY INFORMATION: Two DATES: Comments must be filed on or • Electronic Filers: Comments may be requests for an extension of the before February 2, 2009, and reply filed electronically using the Internet by comment period on the proposed rule comments must be filed on or before accessing the ECFS: http://www.fcc.gov/ were submitted by the American February 20, 2009. cgb/ecfs/ or the Federal eRulemaking Chemistry Council, Biocides Panel and ADDRESSES: You may submit comments, Portal: http://www.regulations.gov. the Consumer Specialty Products identified in DA 08–2576, by any of the Filers should follow the instructions Association. Both of these requests are following methods: provided on the Web site for submitting in docket EPA–HQ–OPP–2008–0110, • Federal eRulemaking Portal: http:// comments. accessible via http:// www.regulations.gov. Follow the • For ECFS filers, if multiple docket www.regulations.gov. Today’s document instructions for submitting comments. or rulemaking numbers appear in the extends the public comment period • Federal Communications caption of this proceeding, filers must established in the Federal Register of Commission’s Web Site: http:// transmit one electronic copy of the October 8, 2008 (73 FR 59382)(FRL– www.fcc.gov/cgb/ecfs/. Follow the comments for each docket or 8358–2) for the proposed rule entitled instructions for submitting comments. rulemaking number referenced in the ‘‘Data Requirements for Antimicrobial • People with Disabilities: Contact the caption. In completing the transmittal Pesticides.’’ EPA is extending the FCC to request reasonable screen, filers should include their full comment period, which was set to end accommodations (accessible format name, U.S. Postal Service mailing on January 6, 2009, to April 6, 2009. documents, sign language interpreters, address, and the applicable docket or To submit comments, or access the CART, etc.) by e-mail: [email protected] rulemaking number. Parties may also public docket, please follow the detailed or phone: 202–418–0530 or TTY: 202– submit an electronic comment by instructions as provided under 418–0432. Internet e-mail. To get filing ADDRESSES in the October 8, 2008 For detailed instructions for instructions, filers should send an e- Federal Register document. If you have submitting comments and additional mail to [email protected], and include the questions, consult the person listed information on the rulemaking process, following words in the body of the

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message, ‘‘get form.’’ A sample form and joint request (Request) for a 60-day The Commission requests comment on directions will be sent in response. extension of the comment and reply a petition filed by JER Licenses, LLC. • Paper Filers: Parties who choose to comment deadlines ‘‘to enable the Petitioner proposes the substitution of file by paper must file an original and Associations and their members to FM Channel 279A for vacant Channel four copies of each filing. If more than continue industry discussions regarding 231A at Mount Enterprise, Texas. The one docket or rulemaking number the issues raised in the RCA Petition purpose of the requested channel appears in the caption of this with the goal of reaching an agreement substitution at Mount Enterprise is to proceeding, filers must submit two among interested parties on the issues accommodate Petitioner’s proposed additional copies for each additional raised * * * or, at the very least, change of community for Channel docket or rulemaking number. narrowing the issues for Commission 232C3 from Grapeland, Texas, to Filings can be sent by hand or consideration.’’ No party opposed the Bullard, Texas. Channel 279A can be messenger delivery, by commercial Request. allotted at Mount Enterprise in overnight courier, or by first-class or 3. It is the policy of the Commission compliance with the Commission’s overnight U.S. Postal Service mail that extensions of time are not routinely minimum distance separation (although we continue to experience granted. In the instant case, however, requirements with a site restriction of delays in receiving U.S. Postal Service we find that providing a limited 5.9 km (3.7 miles) north of Mount mail). All filings must be addressed to extension will serve the public interest Enterprise. The proposed coordinates the Commission’s Secretary, Office of by allowing parties to discuss the for Channel 279A at Mount Enterprise the Secretary, Federal Communications complex issues at stake and develop are 31–58–15 North Latitude and 94– Commission. consensus approaches where possible. 41–01 West Longitude. See • The Commission’s contractor will Accordingly, we are granting the SUPPLEMENTARY INFORMATION infra. receive hand-delivered or messenger- Request by extending the deadline for DATES: Comments must be filed on or delivered paper filings for the all comments and reply comments to before January 21, 2009, and reply Commission’s Secretary at 236 February 2, and February 20, 2009, comments on or before February 5, Massachusetts Avenue, NE., Suite 110, respectively. 2009. Washington, DC 20002. The filing hours 4. Pursuant to section 4(i) of the ADDRESSES: Secretary, Federal at this location are 8 a.m. to 7 p.m. All Communications Act of 1934, as Communications Commission, hand deliveries must be held together amended, 47 U.S.C. 154(i), and 1.46 of Washington, DC 20554. In addition to with rubber bands or fasteners. Any the Commission’s rules, 47 CFR 1.46, filing comments with the FCC, envelopes must be disposed of before the Rural Cellular Association and interested parties should serve entering the building. CTIA—The Wireless Association Joint • Commercial overnight mail (other petitioner’s counsel as follows: A. Wray Request for Extension of Comment and Fitch, III, Esq., Gammon & Grange, P.C., than U.S. Postal Service Express Mail Reply Comment Deadlines, filed on and Priority Mail) must be sent to 9300 8280 Greensboro Drive, 7th Floor, November 20, 2008, is granted, and the McLean, Virginia 22102–3807. East Hampton Drive, Capitol Heights, deadline for filing comments in FOR FURTHER INFORMATION CONTACT: MD 20743. response to the Public Notice is • U.S. Postal Service first-class, Deborah A. Dupont, Media Bureau (202) extended to February 2, 2009, and until 418–7072. Express, and Priority mail should be February 20, 2009, to file reply SUPPLEMENTARY INFORMATION: addressed to 445 12th Street, SW., comments. This is a Washington, DC 20554. 5. This action is taken under synopsis of the Commission’s Notice of People with Disabilities: To request delegated authority pursuant to Sections Proposed Rule Making, MB Docket No. materials in accessible formats for 0.131 and 0.331 of the Commission’s 08–226, adopted November 26, 2008, people with disabilities (braille, large Rules, 47 CFR 0.131 and 0.331. and released November 28, 2008. The print, electronic files, audio format), full text of this Commission decision is Federal Communications Commission. send an e-mail to [email protected] or call available for inspection and copying the Consumer & Governmental Affairs Joel D. Taubenblatt, during normal business hours in the Bureau at 202–418–0530 (voice), 202– Deputy Chief, Wireless Telecommunications FCC Reference Information Center 418–0432 (tty). Bureau. (Room CY–A257), 445 12th Street, SW., [FR Doc. E8–29533 Filed 12–11–08; 8:45 am] Washington, DC 20554. The complete Summary of Order BILLING CODE 6712–01–P text of this decision may also be 1. On May 20, 2008, the Rural Cellular purchased from the Commission’s copy Association (RCA) filed a Petition for contractor, Best Copy and Printing, Inc., Rulemaking (Petition) asking the FEDERAL COMMUNICATIONS 445 12th Street, SW., Room CY–B402, Commission to ‘‘initiate a rulemaking to COMMISSION Washington, DC 20554, (800) 378–3160, investigate the widespread use and or via the company’s Web site, http:// 47 CFR Part 73 anticompetitive effects of exclusivity www.bcpiweb.com. This document does arrangements between commercial [DA 08–2569; MB Docket No. 08–226; RM– not contain proposed information wireless carriers and handset 11494]. collection requirements subject to the manufacturers, and, as necessary, adopt Paperwork Reduction Act of 1995, rules that prohibit such arrangements Radio Broadcasting Services; Mount Public Law 104–13. In addition, when contrary to the public interest.’’ Enterprise, TX therefore, it does not contain any The Commission issued a Public Notice AGENCY: Federal Communications proposed information collection burden on October 10, 2008, seeking comments Commission. ‘‘for small business concerns with fewer on the Petition. Comments and reply ACTION: Proposed rule. than 25 employees,’’ pursuant to the comments were due on December 2, and Small Business Paperwork Relief Act of December 22, 2008, respectively, 72 FR SUMMARY: This document sets forth a 2002, Public Law 107–198, see 44 U.S.C. 63127, October 23, 2008. proposal to amend the FM Table of 3506(c)(4). 2. On November 20, 2008, RCA and Allotments, Section 73.202(b) of the The Provisions of the Regulatory CTIA—The Wireless Association filed a Commission’s rules, 47 CFR 73.202(b). Flexibility Act of 1980 do not apply to

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this proceeding. Members of the public DATES: Comments must be filed on or Provisions of the Regulatory should note that from the time a Notice before January 21, 2009, and reply Flexibility Act of 1980 do not apply to of Proposed Rule Making is issued until comments on or before February 5, this proceeding. the matter is no longer subject to 2009. Members of the public should note Commission consideration or court that from the time a Notice of Proposed review, all ex parte contacts are ADDRESSES: Federal Communications Rule Making is issued until the matter prohibited in Commission proceedings, Commission, 445 Twelfth Street, SW., is no longer subject to Commission such as this one, which involve channel Washington, DC 20554. In addition to consideration or court review, all ex allotments. See 47 CFR 1.1204(b) for filing comments with the FCC, parte contacts are prohibited in rules governing permissible ex parte interested parties should serve the Commission proceedings, such as this contacts. petitioner, his counsel, or consultant, as one, which involve channel allotments. For information regarding proper follows: David Tillotson, Esq., 4606 See 47 CFR 1.1204(b) for rules filing procedures for comments, see 47 Charleston Terrace, NW., Washington, governing permissible ex parte contact. CFR 1.415 and 1.420. DC 20007 (Counsel for Jodesha For information regarding proper Broadcasting, Inc.). filing procedures for comments, see 47 List of Subjects in 47 CFR Part 73 CFR 1.415 and 1.420. FOR FURTHER INFORMATION CONTACT: Radio, Radio broadcasting. Andrew J. Rhodes, Media Bureau, (202) List of Subjects in 47 CFR Part 73 For the reasons discussed in the 418–2180. preamble, the Federal Communications Radio, Radio broadcasting. Commission proposes to amend 47 CFR SUPPLEMENTARY INFORMATION: This is a For the reasons discussed in the part 73 as follows: synopsis of the Commission’s Notice of preamble, the Federal Communications Proposed Rulemaking, MB Docket No. Commission proposes to amend 47 CFR PART 73—RADIO BROADCAST 08–228, adopted November 26, 2008, part 73 as follows: SERVICES and released November 28, 2008. The full text of this Commission decision is PART 73—RADIO BROADCAST 1. The authority citation for part 73 available for inspection and copying SERVICES continues to read as follows: during regular business hours at the 1. The authority citation for part 73 Authority: 47 U.S.C. 154, 303, 334, 336. FCC’s Reference Information Center, continues to read as follows: § 73.202 [Amended] Portals II, 445 Twelfth Street, SW., Room CY–A257, Washington, DC 20554. Authority: 47 U.S.C. 154, 303, 334, 336. 2. Section 73.202(b), the Table of FM The complete text of this decision may Allotments under Texas, is amended by § 73.202 [Amended] also be purchased from the removing Channel 231A and by adding 2. Section 73.202(b), the Table of FM Commission’s duplicating contractor, Channel 279A at Mount Enterprise. Allotments under Washington, is Best Copy and Printing, Inc., 445 12th amended by removing 229A and adding Federal Communications Commission. Street, SW., Room CY–B402, Channel 271A at Port Angeles. John A. Karousos, Washington, DC 20554, telephone Federal Communications Commission. Assistant Chief, Audio Division, Media 1–800–378–3160 or http:// Bureau. www.BCPIWEB.com. This document John A. Karousos, [FR Doc. E8–29499 Filed 12–11–08; 8:45 am] does not contain proposed information Assistant Chief, Audio Division, Media Bureau. BILLING CODE 6712–01–P collection requirements subject to the Paperwork Reduction Act of 1995, [FR Doc. E8–29516 Filed 12–11–08; 8:45 am] Public Law 104–13. In addition, BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS therefore, it does not contain any COMMISSION proposed information collection burden ‘‘for small business concerns with fewer DEPARTMENT OF COMMERCE 47 CFR Part 73 than 25 employees,’’ pursuant to the National Oceanic and Atmospheric [DA 08–2590; MB Docket No. 08–228; RM– Small Business Paperwork Relief Act of 11481] 2002, Public Law 107–198, see 44 U.S.C. Administration 3506(c)(4). Radio Broadcasting Services; Port 50 CFR Part 216 The proposed channel substitution at Angeles, WA Port Angeles is part of a hybrid RIN 0648–AW78 AGENCY: Federal Communications application and rulemaking proceeding. Taking and Importing Marine Commission. In the first application, Jodesha Mammals; U.S. Navy Training in the ACTION: Proposed rule. Broadcasting proposes the upgrade of Channel 229C3 to Channel 229C0 at Virginia Capes Range Complex SUMMARY: The Audio Division requests Ocean Shores, the reallotment of AGENCY: National Marine Fisheries comment on a petition filed by Jodesha Channel 229C0 to Montesano, Service (NMFS), National Oceanic and Broadcasting, Inc., licensee of Station Washington, and the associated Atmospheric Administration (NOAA), KANY(FM), Ocean Shores, Washington, modification of the Station KANY(FM) Commerce. and permittee of Station KSWW(FM), license. To retain a first local service at ACTION: Proposed rule; request for Montesano, Washington, proposing the Ocean Shores, the second application comments. substitution of FM Channel 271A for proposes the downgrade of Channel vacant Channel 229A at Port Angeles, 271C2 to Channel 271C3 at Montesano, SUMMARY: NMFS has received a request Washington. The reference coordinates Washington, the reallotment of Channel from the U.S. Navy (Navy) for for Channel 271A at Port Angeles, 271C3 to Ocean Shores, and the authorization to take marine mammals Washington, are 48–06–54 NL and 123– modification of the Station KSWW(FM) incidental to training activities 26–36 WL. See SUPPLEMENTARY construction permit. See 73 FR 50015 conducted within the Virginia Capes INFORMATION, infra. (August 25, 2008). (VACAPES) Range Complex for the

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period of April 2009 through April Background requests authorization to take 1 2014. Pursuant to the Marine Mammal Sections 101(a)(5)(A) and (D) of the individual Atlantic spotted, 20 Protection Act (MMPA), NMFS is MMPA (16 U.S.C. 1361 et seq.) direct common, 1 pantropical spotted, and 3 proposing regulations to govern that the Secretary of Commerce (Secretary) striped dolphins per year by injury, and take and requesting information, to allow, upon request, the incidental, 1 individual common dolphin per year suggestions, and comments on these but not intentional taking of marine by mortality, as a result of the proposed proposed regulations. mammals by U.S. citizens who engage training activities at VACAPES Range DATES: Comments and information must in a specified activity (other than Complex. Please refer to Table 29 of the be received no later than January 12, commercial fishing) during periods of LOA application for detailed 2009. not more than five consecutive years information of the potential exposures from explosive ordnance (per year) for ADDRESSES: You may submit comments, each if certain findings are made and regulations are issued or, if the taking is marine mammals in the VACAPES identified by 0648–AW78, by any one of Range Complex. However, due to the the following methods: limited to harassment, notice of a proposed authorization is provided to proposed mitigation and monitoring • Electronic Submissions: Submit all measures, NMFS does not believe the electronic public comments via the the public for review. Authorization shall be granted if proposed action would result in marine Federal eRulemaking Portal http:// NMFS finds that the taking will have a mammal mortalities. Therefore, no www.regulations.gov negligible impact on the species or mortality would be authorized for the • Hand delivery or mailing of paper, stock(s), will not have an unmitigable Navy’s VACAPES Range Complex disk, or CD-ROM comments should be adverse impact on the availability of the training activities. addressed to Michael Payne, Chief, species or stock(s) for subsistence uses, Background of Navy Request Permits, Conservation and Education and if the permissible methods of taking Division, Office of Protected Resources, The Navy’s mission is to maintain, and requirements pertaining to the National Marine Fisheries Service, 1315 train, and equip combat-ready naval mitigation, monitoring and reporting of East-West Highway, Silver Spring, MD forces capable of winning wars, such taking are set forth. 20910–3225. deterring aggression, and maintaining NMFS has defined ‘‘negligible freedom of the seas. Title 10, U.S. Code Instructions: All comments received impact’’ in 50 CFR 216.103 as: are a part of the public record and will (U.S.C.) section 5062 directs the Chief of generally be posted to http:// an impact resulting from the specified Naval Operations to train all naval www.regulations.gov without change. activity that cannot be reasonably expected forces for combat. The Chief of Naval to, and is not reasonably likely to, adversely All Personal Identifying Information (for Operations meets that direction, in part, affect the species or stock through effects on by conducting at-sea training exercises example, name, address, etc.) annual rates of recruitment or survival. voluntarily submitted by the commenter and ensuring naval forces have access to The National Defense Authorization may be publicly accessible. Do not ranges, operating areas (OPAREAs) and Act of 2004 (NDAA) (Public Law 108– submit Confidential Business airspace where they can develop and 136) removed the ‘‘small numbers’’ and Information or otherwise sensitive or maintain skills for wartime missions ‘‘specified geographical region’’ protected information. and conduct research, development, limitations and amended the definition NMFS will accept anonymous test, and evaluation (RDT&E) of naval of ‘‘harassment’’ as it applies to a comments (enter N/A in the required weapons systems. ‘‘military readiness activity’’ to read as fields if you wish to remain The VACAPES Range Complex follows (Section 3(18)(B) of the MMPA): anonymous). Attachments to electronic represents an essential three- comments will be accepted in Microsoft (i) any act that injures or has the significant dimensional space that provides a Word, Excel, WordPerfect, or Adobe potential to injure a marine mammal or realistic and safe training area for Navy PDF file formats only. marine mammal stock in the wild [Level A personnel. For nearly a century the area Harassment]; or (ii) any act that disturbs or has supported Navy training activities, FOR FURTHER INFORMATION CONTACT: is likely to disturb a marine mammal or and is now host to a wide range of Shane Guan, Office of Protected marine mammal stock in the wild by causing training every year to ensure the U.S. Resources, NMFS, (301) 713–2289, ext. disruption of natural behavioral patterns, military members are ready for combat. 137. including, but not limited to, migration, The VACAPES Range Complex is the surfacing, nursing, breeding, feeding, or SUPPLEMENTARY INFORMATION: sheltering, to a point where such behavioral principal training area for air, surface and submarine units located in Availability patterns are abandoned or significantly altered [Level B Harassment]. Hampton Roads, Virginia. The A copy of the Navy’s application may VACAPES Range Complex is also the be obtained by writing to the address Summary of Request primary homeport of the Atlantic Fleet. specified above (See ADDRESSES), On March 17, 2008, NMFS received The Hampton Roads area includes more telephoning the contact listed above (see an application from the Navy requesting than 80,000 active duty Navy personnel. FOR FURTHER INFORMATION CONTACT), or authorization for the take of 13 species In addition to serving as the site for visiting the internet at: http:// of cetacean incidental to the proposed essential Navy training, the VACAPES www.nmfs.noaa.gov/pr/permits/ training activities in VACAPES Range Range Complex is host to activities for incidental.htm. The Navy’s Draft Complex over the course of 5 years. the RDT&E of emerging technologies. Environmental Impact Statement (DEIS) These training activities are classified as The RDT&E activities addressed in the for the VACAPES Range Complex was military readiness activities. The Navy VACAPES EIS/OEIS are those RDT&E published on June 27, 2008, and may be states that these training activities may activities that are substantially similar viewed at http:// cause various impacts to marine to training, involving existing systems www.VACAPESRangeComplexEIS.com. mammal species in the proposed or systems with similar operating NMFS participated in the development VACAPES Range Complex area. The parameters. of the Navy’s DEIS as a cooperating Navy requests an authorization to take The VACAPES Study Area agency under the National individuals of these cetacean species by geographically encompasses offshore, Environmental Policy Act (NEPA). Level B Harassment. Further, the Navy near-shore, and onshore OPAREAs,

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ranges, and Special Use Airspace (SUA) miles (nm) off the entrance to Delaware Surface Warfare (Figure 1 of the application). The lower Bay at latitude 38° 45’ N, the farthest Chesapeake Bay is also part of the Study point of the eastern boundary is 184 nm Surface Warfare (SUW) supports Area, although no training involving east of Chesapeake Bay at longitude 72° defense of a geographical area (e.g., a explosions would be performed in this 41’ W, and the southernmost point is zone or barrier) in cooperation with area. Together, components of the 105 nm southeast of Cape Hatteras, surface, subsurface, and air forces. SUW VACAPES Study Area encompass: North Carolina, at latitude of 34° 19’ N. operations detect, localize, and track • 27,661 square nautical miles (nm2) The western boundary of the OPAREA surface targets, primarily ships. of sea space (not including the portion lies 3 nm from the shoreline at the Detected ships are monitored visually of the Lower Chesapeake Bay); and boundary separating state and Federal and with radar. Operations include • 28,672 nm2 of SUA warning areas waters. identifying surface contacts, engaging The portions of the VACAPES Study A warning area is airspace of defined with weapons, disengaging, evasion and Area addressed in the Navy’s dimensions, extending from 3 nm avoiding attack, including application consist of the offshore outward from the U.S. coast, which implementation of radio silence and OPAREA (surface and subsurface contains activity that may be hazardous deceptive measures. waters) and the SUA warning areas (and to nonparticipating aircraft. The For the proposed VACAPES Range not the SUA associated with land purpose of such warning area is to warn Complex training operations, SUW ranges), and waters extending from the nonparticipating pilots of the potential involving the use of explosive ordnance shoreline to the OPAREA boundary danger. A warning area may be located includes air-to-surface Missile Exercises (Table 1 of the application). Table 6 of over domestic or international waters or and air-to-surface Bombing Exercises the LOA application provides a list of both. that occur at sea. marine mammal species that have been confirmed and/or have the potential to Description of the Specified Activities (1) Missile Exercise (Air-to-Surface) occur in the VACAPES Study Area. The Navy requests an authorization (MISSILEX (A-S)): This exercise would The VACAPES OPAREA is a set of for take of marine mammals incidental involve fixed winged aircraft crews and operating and maneuver areas with to conducting training operations within helicopter crews who launch missiles at defined ocean surface and subsurface the VACAPES Range Complex. These at-sea surface targets with the goal of operating areas described in detail in training activities consist of surface destroying or disabling the target. Table 1 of the application. The OPAREA warfare, mine warfare, amphibious MISSILEX (A-S) training in the is located in the coastal and offshore warfare, strike warfare, and vessel VACAPES Range Complex can occur waters of the western North Atlantic movement. The locations of these during the day or at night in locations Ocean adjacent to Delaware, Maryland, activities are described in Figure 1 of described in Figure 1 of the LOA Virginia, and North Carolina (Figure 1 of the application. A description of each of application. Table 1 below summarizes the application; 27,661 nm2 of surface these training activities within the the levels of MISSILEX planned in the waters). The northernmost boundary of VACAPES Range Complex is provided VACAPES Range Complex for the the OPAREA is located 37 nautical below: proposed action.

TABLE 1. LEVELS OF MISSILEX PLANNED IN THE VACAPES RANGE COMPLEX PER YEAR

Operation Platform System/Ordnance Number of Events

Missile Exercise (MISSILEX) MH-60S, HH-60H AGM-114 (Hellfire missile) 60 sorties (60 missiles) (Air to Surface)

F/A-18, P-3C, and P-8A AGM-65 E/F (Maverick missile) 20 sorties (20 missiles)

(2) Bombing Exercise (BOMBEX) (A- target. BOMBEX (A-S) training in the the levels of BOMBEX planned in the S): This exercise would involve strike VACAPES Study Area occurs only VACAPES Range Complex for the fighter aircraft (F/A–18s) delivering during daylight hours in the locations proposed action. explosive bombs against at-sea surface described in Figure 1 of the LOA targets with the goal of destroying the application. Table 2 below summarizes

TABLE 2. LEVELS OF BOMBEX PLANNED IN THE VACAPES RANGE COMPLEX PER YEAR

Operation Platform System/Ordnance Number of Events

Bombing Exercise (BOMBEX) (Air-to-Surface, At- Sea) F/A–18 MK–83/GBU–32 [1,000 lb High 5 events (20 bombs 4 bombs/ Explosive (HE) bomb] event)

Mine Warfare/Mine Exercises MINEX utilizes shapes to simulate (1) Mine laying: Crews practice the mines. These shapes are either concrete- laying of mine shapes in simulated Mine Warfare (MIW) includes the filled shapes or metal shapes. No actual enemy areas; strategic, operational, and tactical use of explosive mines are used during MIW mines and mine countermine measures (2) Mine countermeasures: Crews training in the VACAPES Range (MCM). MIW training events are also practice ‘‘countering’’ simulated enemy Complex study area. MIW training or collectively referred to as Mine mines to permit the maneuver of Exercises (MINEX). MIW training/ MINEX is divided into the following. friendly vessels and troops.

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‘‘Countering’’ refers to both the refers to the disabling of enemy mines explosive (live) mines would not be detection and identification of enemy by causing them to self-detonate either used during training events. Rather, mines, the marking and maneuver of by setting a small explosive charge in mine shapes are used to simulate real vessels and troops around identified the vicinity of the enemy mine, or by enemy mines. Table 3 below enemy mines and mine fields, and the using various types of equipment that summarizes the levels of mine warfare/ disabling of enemy mines. A subset of emit a sound, pressure, or a magnetic mine exercises planned in the mine countermeasures is mine field that causes the mine to trip and VACAPES Range Complex for the neutralization. Mine neutralization self-detonate. In all cases, actual proposed action.

TABLE 3. LEVELS OF MINE WARFARE/MINE EXERCISES PLANNED IN THE VACAPES RANGE COMPLEX PER YEAR

Operation Platform System/Ordnance Number of Events

Mine Neutralization MH-60S AMNS 30 rounds

EOD 20 lb charges 24 events

In the VACAPES Range Complex logistics in combination with U.S. ranges where FIREX training can take study areas, MIW training/MINEX Marine Corps landing forces to project place are limited. Therefore, land events include the use of explosive military power ashore. AMW masses are simulated during east coast charges for two and one types of mine encompasses a broad spectrum of FIREX training using the Integrated countermeasures and neutralization operations involving maneuver from the Maritime Portable Acoustic Scoring and training, respectively. This training sea to objectives ashore, ranging from Simulation System (IMPASS) system, a would use the Airborne Mine shore assaults, boat raids, ship-to-shore system of buoys that simulate a land Neutralization System (AMNS) and maneuver, shore bombardment and mass. FIREX training using IMPASS underwater detonations of mine shapes other naval fire support, and air strike would occur only during daylight hours by Explosive Ordnance Disposal (EOD) and close air support training. AMW in the locations described in Figure 1 of divers. MIW training/MINEX would that involves the use of explosive the LOA application. Table 4 below occur only during daylight hours in the ordnance is limited to Firing Exercises summarizes the levels of FIREX and locations described in Figure 1 of the (FIREX). LOA application. IMPASS planned in the VACAPES During a FIREX, surface ships use Range Complex for the proposed action. Amphibious Warfare their main battery guns to fire from sea Amphibious Warfare (AMW) involves at land targets in support of military the utilization of naval firepower and forces ashore. On the east coast, the land

TABLE 4. LEVELS OF FIREX AND IMPASS PLANNED IN THE VACAPES RANGE COMPLEX PER YEAR

Operation Platform System/Ordnance Number of Events

FIREX with IMPASS CG, DDG 5’’ gun (IMPASS) 22 events (858 HE rounds)

Strike Warfare explosive ordnance includes air-to-air as to not destroy the barge target below. Strike Warfare (STW) operations are Missile Exercises (MISSILEX (A-A)). Therefore HARM missiles are not the applications of offensive military Strike fighter and electronic attack included in the underwater explosive power at any chosen time and place to aircraft use sensors to detect radar exposure modeling since no marine help carry out national goals. The signals from a simulated threat radar mammal exposures are anticipated. systems required to conduct STW site and either simulate or actually HARM training events are conducted in include: weapons, launch platforms, launch an explosive or non-explosive the daytime and at night in locations and command and control systems, high-speed anti-radiation missile described in Figure 1 of the LOA intelligence, surveillance, (HARM) with the goal of destroying or application. Table 5 below summarizes reconnaissance, and targeting systems, disabling the threat radar site. HARM the levels of HARMEX (A-A) planned in and pilots or crews to operate the missiles are designed to detonate 30 - 60 the VACAPES Range Complex for the systems. STW involving the use of ft (9 - 18 m) above the water surface so proposed action.

TABLE 5. LEVELS OF HARMEX (A-A) PLANNED IN THE VACAPES RANGE COMPLEX PER YEAR

Operation Platform System/Ordnance Number of Events

HARM Missile Exercise (HARMEX) F/A–18 AGM–88 (HARM) 26 sorties (26 missiles)

Vessel Movement training operations are strictly vessel transit lanes by submarines when Vessel movements are associated with movements such as Man Overboard surfaced. Currently, the number of Navy most training operations in the Drills, Tow/Be Towed Exercises, vessels operating in the VACAPES VACAPES Range Complex and include Underway Replenishment, Aircraft Range Complex study area varies based transits to and from the port. Some Carrier Flight Operations, and use of the on training schedules and can range

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from 0 to about 10 vessels at any given total vessel days within the Range Table 6 also includes the federal status time. Ship sizes range from 362 ft (110 Complex during a typical year. of these marine mammal species. Six m) for a SSN to 1,092 ft (333 m) for a Consequently, the density of ships marine mammal species listed as CVN and speeds generally range from 10 within the study area at any given time federally endangered under the to 14 knots during training operations. is extremely low (i.e., less than 0.0004 Endangered Species Act (ESA) occur in Operations involving vessel movements ships/nm2). the VACAPES Range Complex: the occur intermittently and are variable in Description of Marine Mammals in the humpback whale, North Atlantic right duration, ranging from a few hours up Area of the Specified Activities whale, sei whale, fin whale, blue whale, to 2 weeks. These operations are widely There are 34 marine mammal species and sperm whale. Although it is dispersed throughout the operation with possible or confirmed occurrence possible that any of the 34 species of areas, which is a vast area encompassing in the VACAPES Range Complex. As marine mammals may occur in the 2 27,661 nm (an area approximately the indicated in Table 6, there are 33 VACAPES Range Complex, only 24 of size of Indiana) for the VACAPES Range cetacean species (7 mysticetes and 26 those species are expected to occur Complex. The Navy logs about 1,400 odontocetes) and one pinniped species. regularly in the region.

TABLE 6. MARINE MAMMAL SPECIES FOUND IN THE VACAPES RANGE COMPLEX

Family and Scientific Name Common Name Federal Status

Order Cetacea

Suborder Mysticeti (baleen whales)

Eubalaena glacialis North Atlantic right whale Endangered

Megaptera novaeangliae Humpback whale Endangered

Balaenoptera acutorostrata Minke whale

B. brydei Bryde’s whale

B. borealis Sei whale Endangered

B. physalus Fin whale Endangered

B. musculus Blue whale Endangered

Suborder Odontoceti (toothed whales)

Physeter macrocephalus Sperm whale Endangered

Kogia breviceps Pygmy sperm whale

K. sima Dwarf sperm whale

Ziphius cavirostris Cuvier’s beaked whale

Mesoplodon minus True’s beaked whale

M. europaeus Gervais’ beaked whale

M. bidens Sowerby’s beaked whale

M. densirostris Blainville’s beaked whale

Steno bredanensis Rough-toothed dolphin

Tursiops truncatus Bottlenose dolphin

Stenella attenuata Pantropical spotted dolphin

S. frontalis Atlantic spotted dolphin

S. longirostris Spinner dolphin

S. clymene Clymene dolphin

S. coeruleoalba Striped dolphin

Delphinus delphis Common dolphin

Lagenodephis hosei Fraser’s dolphin

Lagenorhynchus acutus Atlantic white-sided dolphin

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TABLE 6. MARINE MAMMAL SPECIES FOUND IN THE VACAPES RANGE COMPLEX—Continued

Family and Scientific Name Common Name Federal Status

Grampus griseus Risso’s dolphin

Peponocephala electra Melon-headed whale

Feresa attenuata Pygmy killer whale

Pseudorca crassidens False killer whale

Orcinus orca Killer whale

Globicephala melas Long-finned pilot whale

G. macrorhynchus Short-finned pilot whale

Phocoena phocoena Harbor porpoise

Order Carnivora

Suborder Pinnipedia

Phoca vitulina Harbor seal

The information contained herein (2) using abundance estimates from estimates provided in this LOA, please relies heavily on the data gathered in Mullin and Fulling (2003); (3) or based refer to the NODE report for the the Marine Resource Assessments on the cetacean abundance estimates Southeast (DON 2007). (MRAs). The Navy MRA Program was found in the most current NMFS stock Potential Impacts to Marine Mammal implemented by the Commander, Fleet assessment report (SAR) (Waring et al., Species Forces Command, to initiate collection 2007), which can be viewed at: http:// of data and information concerning the www.nmfs.noaa.gov/pr/sars/ The Navy considers that explosions protected and commercial marine species.htm. associated with BOMBEX, MISSILEX, resources found in the Navy’s For the model-based approach, FIREX, and MINEX are the activities OPAREAs. Specifically, the goal of the density estimates were calculated for with the potential to result in Level A MRA program is to describe and each species within areas containing or Level B harassment or mortality of document the marine resources present survey effort. A relationship between marine mammals. Vessel strikes were in each of the Navy’s OPAREAs. The these density estimates and the also analyzed for their potential effect to MRA for the VACAPES OPAREA was associated marine mammals. environmental parameters such as recently updated in 2007 (DoN, 2008). Vessel Strikes The MRA data were used to provide depth, slope, distance from the shelf a regional context for each species. The break, sea surface temperature, and Ship strikes are known to affect large MRA represents a compilation and chlorophyll a concentration was whales and sirenians in the VACAPES synthesis of available scientific formulated using generalized additive Study Area. The most vulnerable marine literature (for example, journals, models. This relationship was then used mammals are those that spend extended periodicals, theses, dissertations, project to generate a two-dimensional density periods of time at the surface in order reports, and other technical reports surface for the region by predicting to restore oxygen levels within their published by government agencies, densities in areas where no survey data tissues after deep dives (e.g., the sperm private businesses, or consulting firms), exist. whale). In addition, some baleen and NMFS reports including stock The analyses for cetaceans were based whales, such as the North Atlantic right assessment reports, recovery plans, and on sighting data collected through whale seem generally unresponsive to survey reports. shipboard surveys conducted by NMFS- vessel sound, making them more The density estimates that were used Northeast Fisheries Science Center susceptible to vessel collisions in previous Navy environmental (NEFSC) and Southeast Fisheries (Nowacek et al., 2004). These species documents have been recently updated Science Center (SEFSC) between 1998 are primarily large, slow moving to provide a compilation of the most and 2005. Species-specific density whales. Smaller marine mammals, for recent data and information on the estimates derived through spatial example, Atlantic bottlenose and occurrence, distribution, and density of modeling were compared with Atlantic spotted dolphins-move quickly marine mammals. The updated density abundance estimates found in the most throughout the water column and are estimates used for the analyses are current NMFS SAR to ensure often seen riding the bow wave of large derived from the Navy OPAREA Density consistency. All spatial models and ships. Marine mammal responses to Estimates (NODE) for the Southeast density estimates were reviewed by and vessels may include avoidance and OPAREAS report (DON, 2007). coordinated with NMFS Science Center changes in dive pattern (NRC, 2003). Density estimates for cetaceans were technical staff and scientists with the After reviewing historical records and either modeled using available line- University of St. Andrews, Scotland, computerized stranding databases for transect survey data or derived using Centre for Environmental and Ecological evidence of ship strikes involving available data in order of preference: (1) Modeling (CREEM). For a more detailed baleen and sperm whales, Laist et al. through spatial models using line- description of the methodology (2001) found that accounts of large transect survey data provided by NMFS; involved in calculating the density whale ship strikes involving motorized

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boats in the area date back to at least the within 55 km (30 NM) of the coast I. Physiology late 1800s. Ship collisions remained (Knowlton et al., 2002). Given the low Potential impacts to the auditory infrequent until the 1950s, after which abundance of North Atlantic right system are assessed by considering the point they increased. Laist et al. (2001) whales relative to other species, the characteristics of the received sound report that both the number and speed frequency of occurrence of vessel (e.g., amplitude, frequency, duration) of motorized vessels have increased collisions to right whales suggests that and the sensitivity of the exposed over time for trans-Atlantic passenger the threat of ship strikes is animals. Some of these assessments can services, which transit through the area. proportionally greater to this species be numerically based (e.g., temporary They concluded that most strikes occur (Jensen and Silber, 2003). Therefore, in threshold shift [TTS] of hearing over or near the continental shelf, that 2004, NMFS proposed a right whale sensitivity, permanent threshold shift ship strikes likely have a negligible vessel collision reduction strategy to [PTS] of hearing sensitivity, perception). effect on the status of most whale consider the establishment of Others will be necessarily qualitative, populations, but that for small operational measures for the shipping due to lack of information, or will need populations or segments of populations industry to reduce the potential for large to be extrapolated from other species for the impact of ship strikes may be which information exists. significant. vessel collisions with North Atlantic Although ship strikes may result in right whales while transiting to and Potential physiological responses to the mortality of a limited number of from mid-Atlantic ports during right the sound exposure are ranked in whales within a population or stock, whale migratory periods. Although descending order, with the most severe Laist et al. (2001) also concluded that, Navy vessel traffic generally represents impact (auditory trauma) occurring at when considered in combination with only 2 - 3 percent of overall large vessel the top and the least severe impact other human-related mortalities in the traffic, based on this biological occurring at the bottom (the sound is area (e.g., entanglement in fishing gear), characteristic and the presence of not perceived). these ship strikes may present a concern critical Navy ports along the whales of Auditory trauma represents direct for whale populations. mid-Atlantic migratory corridor, the mechanical injury to hearing related Of 11 species known to be hit by Navy was the first Federal agency to structures, including tympanic ships, fin whales are struck most proactively adopt additional mitigation membrane rupture, disarticulation of the middle ear ossicles, and trauma to frequently; right whales, humpback measures for transits in the vicinity of the inner ear structures such as the whales, sperm whales, and gray whales mid-Atlantic ports during right whale organ of Corti and the associated hair are all hit commonly (Laist et al., 2001). migration. For purposes of these In some areas, one-third of all fin whale cells. Auditory trauma is always measures, the mid-Atlantic is defined injurious that could result in PTS. and right whale strandings appear to broadly to include ports south and east involve ship strikes. Sperm whales Auditory trauma is always assumed to of Block Island Sound southward to result in a stress response. spend long periods (typically up to 10 South Carolina. minutes; Jacquet et al., 1996) ‘‘rafting’’ Auditory fatigue refers to a loss of at the surface between deep dives. This Accordingly, the Navy has proposed hearing sensitivity after sound could make them exceptionally mitigation measures to reduce the stimulation. The loss of sensitivity vulnerable to ship strikes. Berzin (1972) potential for collisions with surfaced persists after, sometimes long after, the noted that there were ‘‘many’’ reports of marine mammals (for more details refer cessation of the sound. The mechanisms sperm whales of different age classes to Proposed Mitigation section below). responsible for auditory fatigue differ being struck by vessels, including Based on the implementation of Navy from auditory trauma and would passenger ships and tug boats. There mitigation measures, especially during primarily consist of metabolic were also instances in which sperm times of anticipated right whale exhaustion of the hair cells and cochlear whales approached vessels too closely occurrence, and the relatively low tissues. The features of the exposure and were cut by the propellers (NMFS, density of Navy ships in the Study Area (e.g., amplitude, frequency, duration, 2006d). the likelihood that a vessel collision temporal pattern) and the individual The east coast is a principal migratory would occur is very low. animal’s susceptibility would determine corridor for North Atlantic right whales the severity of fatigue and whether the that travel between the calving/nursery Assessment of Marine Mammal effects were temporary (TTS) or areas in the Southeastern United States Response to Anthropogenic Sound permanent (PTS). Auditory fatigue (PTS and feeding grounds in the northeast or TTS) is always assumed to result in U.S. and Canada. Transit to the Study Marine mammals respond to various a stress response. Area from mid-Atlantic ports requires types of anthropogenic sounds Sounds with sufficient amplitude and Navy vessels to cross the migratory introduced into the ocean environment. duration to be detected among the route of North Atlantic right whales. Responses are typically subtle and can background ambient noise are Southward right whale migration include shorter surfacings, shorter considered to be perceived. This generally occurs from mid- to late dives, fewer blows per surfacing, longer category includes sounds from the November, although some right whales intervals between blows (breaths), threshold of audibility through the may arrive off the Florida coast in early ceasing or increasing vocalizations, normal dynamic range of hearing (i.e., November and stay into late March shortening or lengthening vocalizations, not capable of producing fatigue). (Kraus et al., 1993). The northbound and changing frequency or intensity of To determine whether an animal migration generally takes place between vocalizations (NRC, 2005). However, it perceives the sound, the received level, January and late March. Data indicate is not known how these responses relate frequency, and duration of the sound that during the spring and fall to significant effects (e.g., long-term are compared to what is known of the migration, right whales typically occur effects or population consequences). species’ hearing sensitivity. in shallow water immediately adjacent The following is an assessment of Since audible sounds may interfere to the coast, with over half the sightings marine mammal responses and with an animal’s ability to detect other (63 percent) occurring within 18.5 km disturbances when exposed to sounds at the same time, perceived (10 NM), and 94.1 percent reported anthropogenic sound. sounds have the potential to result in

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auditory masking. Unlike auditory occurs (injury); (b) bubbles develop to area where animals engage in breeding fatigue, which always results in a stress the extent that a complement immune activity? Are animals in the region response because the sensory tissues are response is triggered or nervous tissue is resident and likely to have experience being stimulated beyond their normal subjected to enough localized pressure with the stressor (i.e., repeated physiological range, masking may or that pain or dysfunction occurs (a stress exposures)? Is the region a foraging may not result in a stress response, response without injury); or (c) the ground or are the animals passing depending on the degree and duration bubbles are cleared by the lung without through as transients? What is the ratio of the masking effect. Masking may also negative consequence to the animal. of young (naive) to old (experienced) result in a unique circumstance where No tissue effects – The received sound animals in the population? It is unlikely an animal’s ability to detect other is insufficient to cause either direct that all such questions can be answered sounds is compromised without the (mechanical) or indirect effects to from empirical data; however, they animal’s knowledge. This could tissues. No stress response occurs. should be addressed in any qualitative conceivably result in sensory II. The Stress Response assessment of a potential stress response impairment and subsequent behavior as based on the available literature. change; in this case, the change in The acoustic source is considered a The stress response may or may not behavior is the lack of a response that potential stressor if, by its action on the result in a behavioral change, depending would normally be made if sensory animal, via auditory or nonauditory on the characteristics of the exposed impairment did not occur. For this means, it may produce a stress response animal. However, provided a stress reason, masking also may lead directly in the animal. The term ‘‘stress’’ has response occurs, we assume that some to behavior change without first causing taken on an ambiguous meaning in the contribution is made to the animal’s a stress response. scientific literature, but with respect to allostatic load. Allostasis is the ability of The features of perceived sound (e.g., the later discussions of allostasis and an animal to maintain stability through amplitude, duration, temporal pattern) allostatic loading, the stress response change by adjusting its physiology in are also used to judge whether the will refer to an increase in energetic response to both predictable and sound exposure is capable of producing expenditure that results from exposure unpredictable events (McEwen and a stress response. Factors to consider in to the stressor and which is Wingfield, 2003). The same hormones this decision include the probability of predominantly characterized by either associated with the stress response vary the animal being naive or experienced the stimulation of the sympathetic naturally throughout an animal’s life, with the sound (i.e., what are the nervous system (SNS) or the providing support for particular life known/unknown consequences of the hypothalamic-pituitary-adrenal (HPA) history events (e.g., pregnancy) and exposure). axis (Reeder and Kramer, 2005). The predictable environmental conditions The received level is not of sufficient SNS response to a stressor is immediate (e.g., seasonal changes). The allostatic amplitude, frequency, and duration to and acute and is characterized by the load is the cumulative cost of allostasis be perceptible by the animal. By release of the catecholamine incurred by an animal and is generally extension, this does not result in a stress neurohormones norepinephrine and characterized with respect to an response (not perceived). epinephrine (i.e., adrenaline). These animal’s energetic expenditure. Potential impacts to tissues other than hormones produce elevations in the Perturbations to an animal that may those related to the auditory system are heart and respiration rate, increase occur with the presence of a stressor, assessed by considering the awareness, and increase the availability either biological (e.g., predator) or characteristics of the sound (e.g., of glucose and lipids for energy. The anthropogenic (e.g., construction), can amplitude, frequency, duration) and the HPA response is ultimately defined by contribute to the allostatic load known or estimated response increases in the secretion of the (Wingfield, 2003). Additional costs are characteristics of nonauditory tissues. glucocorticoid steroid hormones, cumulative and additions to the Some of these assessments can be predominantly cortisol in mammals. allostatic load over time may contribute numerically based (e.g., exposure The amount of increase in circulating to reductions in the probability of required for rectified diffusion). Others glucocorticoids above baseline may be achieving ultimate life history functions will be necessarily qualitative, due to an indicator of the overall severity of a (e.g., survival, maturation, reproductive lack of information. Each of the stress response (Hennessy et al., 1979). effort and success) by producing potential responses may or may not Each component of the stress response pathophysiological states. The result in a stress response. is variable in time; e.g., adrenalines are contribution to the allostatic load from Direct tissue effects – Direct tissue released nearly immediately and are a stressor requires estimating the responses to sound stimulation may used or cleared by the system quickly, magnitude and duration of the stress range from tissue shearing (injury) to whereas cortisol levels may take long response, as well as any secondary mechanical vibration with no resulting periods of time to return to baseline. contributions that might result from a injury. Any tissue injury would produce The presence and magnitude of a change in behavior. a stress response, whereas noninjurious stress response in an animal depends on If the acoustic source does not stimulation may or may not. a number of factors. These include the produce tissue effects, is not perceived Indirect tissue effects – Based on the animal’s life history stage (e.g., neonate, by the animal, or does not produce a amplitude, frequency, and duration of juvenile, adult), the environmental stress response by any other means, we the sound, it must be assessed whether conditions, reproductive or assume that the exposure does not exposure is sufficient to indirectly affect developmental state, and experience contribute to the allostatic load. tissues. For example, the hypothesis with the stressor. Not only will these Additionally, without a stress response that rectified diffusion occurs is based factors be subject to individual or auditory masking, it is assumed that on the idea that bubbles that naturally variation, but they will also vary within there can be no behavioral change. exist in biological tissues can be an individual over time. In considering Conversely, any immediate effect of stimulated to grow by an acoustic field. potential stress responses of marine exposure that produces an injury is Under this hypothesis, one of three mammals to acoustic stressors, each of assumed to also produce a stress things could happen: (a) bubbles grow these should be considered. For response and contribute to the allostatic to the extent that tissue hemorrhage example, is the acoustic stressor in an load.

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III. Behavior life stage of the animal. For example, an gaseous by-products, create an Changes in marine mammal behavior animal on a breeding ground which is oscillating bubble, and cause a plume of are expected to result from an acute sexually immature will suffer relatively water to shoot up from the water stress response. This expectation is little consequence to disruption of surface. The shock wave and blast noise based on the idea that some sort of breeding behavior when compared to an are of most concern to marine animals. physiological trigger must exist to actively displaying adult of prime The effects of an underwater explosion change any behavior that is already reproductive age. on a marine mammal depends on many factors, including the size, type, and being performed. The exception to this IV.2. Ultimate Life Functions rule is the case of auditory masking. The depth of both the animal and the The ultimate life functions are those presence of a masking sound may not explosive charge; the depth of the water that enable an animal to contribute to produce a stress response, but may column; and the standoff distance the population (or stock, or species, interfere with the animal’s ability to between the charge and the animal, as etc.). The impact to ultimate life detect and discriminate biologically well as the sound propagation functions will depend on the nature and relevant signals. The inability to detect properties of the environment. Potential magnitude of the perturbation to and discriminate biologically relevant impacts can range from brief effects proximate life history functions. signals hinders the potential for normal (such as behavioral disturbance), tactile Depending on the severity of the behavioral responses to auditory cues perception, physical discomfort, slight response to the stressor, acute and is thus considered a behavioral injury of the internal organs and the perturbations may have nominal to change. auditory system, to death of the animal Impulsive sounds from explosions profound impacts on ultimate life (Yelverton et al., 1973; O’Keeffe and have very short durations as compared functions. For example, unit-level use of Young, 1984; DoN, 2001). Non-lethal to other sounds like sonar or ship noise, sonar by a vessel transiting through an injury includes slight injury to internal which are more likely to produce area that is utilized for foraging, but not organs and the auditory system; auditory masking. Additionally the for breeding, may disrupt feeding by however, delayed lethality can be a explosive sources analyzed in this exposed animals for a brief period of result of individual or cumulative document are used infrequently and the time. Because of the brevity of the sublethal injuries (DoN, 2001). training events are typically of short perturbation, the impact to ultimate life Immediate lethal injury would be a duration. Therefore, the potential for functions may be negligible. By contrast, result of massive combined trauma to weekly training over a period of years auditory masking is unlikely and no internal organs as a direct result of may have a more substantial impact impacts to marine mammals due to proximity to the point of detonation because the stressor is chronic. auditory masking are anticipated due to (DoN, 2001). Generally, exposures to Assessment of the magnitude of the implementing the proposed action. higher levels of impulse and pressure Numerous behavioral changes can stress response from the chronic levels would result in worse impacts to occur as a result of stress response. For perturbation would require an an individual animal. each potential behavioral change, the understanding of how and whether Injuries resulting from a shock wave magnitude in the change and the animals acclimate to a specific, repeated take place at boundaries between tissues severity of the response needs to be stressor and whether chronic elevations of different density. Different velocities estimated. Certain conditions, such as in the stress response (e.g., cortisol are imparted to tissues of different stampeding (i.e., flight response) or a levels) produce fitness deficits. densities, and this can lead to their The proximate life functions are response to a predator, might have a physical disruption. Blast effects are loosely ordered in decreasing severity of probability of resulting in injury. For greatest at the gas-liquid interface impact. Mortality (survival) has an example, a flight response, if significant (Landsberg, 2000). Gas-containing immediate effect, in that no future enough, could produce a stranding organs, particularly the lungs and reproductive success is feasible and event. Each altered behavior may also gastrointestinal tract, are especially there is no further addition to the have the potential to disrupt susceptible (Goertner, 1982; Hill, 1978; population resulting from reproduction. biologically significant events (e.g., Yelverton et al., 1973). In addition, gas- Severe injuries may also lead to reduced containing organs including the nasal breeding or nursing) and may need to be survivorship (longevity) and prolonged sacs, larynx, pharynx, trachea, and classified as Level B harassment. All alterations in behavior. The latter may lungs may be damaged by compression/ behavioral disruptions have the further affect an animal’s overall expansion caused by the oscillations of potential to contribute to the allostatic reproductive success and reproductive the blast gas bubble (Reidenberg and load. This secondary potential is effort. Disruptions of breeding have an Laitman, 2003). Intestinal walls can signified by the feedback from the immediate impact on reproductive effort bruise or rupture, with subsequent collective behaviors to allostatic and may impact reproductive success. hemorrhage and escape of gut contents loading. The magnitude of the effect will depend into the body cavity. Less severe IV. Life Function on the duration of the disruption and gastrointestinal tract injuries include the type of behavior change that was contusions, petechiae (small red or IV.1. Proximate Life Functions provoked. Disruptions to feeding and purple spots caused by bleeding in the Proximate life history functions are migration can affect all of the ultimate skin), and slight hemorrhaging the functions that the animal is engaged life functions; however, the impacts to (Yelverton et al., 1973). in at the time of acoustic exposure. The reproductive effort and success are not Because the ears are the most disruption of these functions, and the likely to be as severe or immediate as sensitive to pressure, they are the organs magnitude of the disruption, is those incurred by mortality and most sensitive to injury (Ketten, 2000). something that must be considered in breeding disruptions. Sound-related damage associated with determining how the ultimate life blast noise can be theoretically distinct history functions are affected. Explosive Ordnance Exposure Analysis from injury from the shock wave, Consideration of the magnitude of the The underwater explosion from a particularly farther from the explosion. effect to each of the proximate life weapon would send a shock wave and If an animal is able to hear a noise, at history functions is dependent upon the blast noise through the water, release some level it can damage its hearing by

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causing decreased sensitivity (Ketten, cerebrospinal fluid leakage into the events (per year by season) and specific 1995) (See Assessment of Marine middle ear. Moderate injury implies areas where each occurs for each type of Mammal Response to Anthropogenic partial hearing loss due to tympanic explosive ordnance used. For most of Sound Section above). Sound-related membrane rupture and blood in the the operations, there is no difference in trauma can be lethal or sublethal. Lethal middle ear. Permanent hearing loss also how many events take place between impacts are those that result in can occur when the hair cells are the different seasons. Fractional values immediate death or serious debilitation damaged by one very loud event, as well are a result of evenly distributing the in or near an intense source and are not, as by prolonged exposure to a loud annual totals over the four seasons. For technically, pure acoustic trauma noise or chronic exposure to noise. The example, there are 45 Hellfire events per level of impact from blasts depends on (Ketten, 1995). Sublethal impacts year that can take place in Air Kilo both an animal’s location and, at outer include hearing loss, which is caused by during any season, so there are 11.25 zones, on its sensitivity to the residual exposures to perceptible sounds. Severe noise (Ketten, 1995). events modeled for each season. damage (from the shock wave) to the The exercises that use explosives However, the 20 lb charge MINEX ears includes tympanic membrane include: FIREX with IMPASS, events are more likely to take place in rupture, fracture of the ossicles, damage MISSILEX, BOMBEX, and MINEX. the summer and this is represented in to the cochlea, hemorrhage, and Table 7 summarizes the number of the seasonal allocation of events.

TABLE 7. NUMBER OF EXPLOSIVE EVENTS WITHIN THE VACAPES RANGE COMPLEX

Sub-Area Ordnance Winter Spring Summer Fall Annual Totals

MISSILEX 106

Air-K Hellfire 11.25 11.25 11.25 11.25

W-72A (2) Hellfire 3.75 3.75 3.75 3.75

Air-E, F, I, J Harm 6.50 6.50 6.50 6.50

Air-K Maverick 5 5 5 5

FIREX 22

5C/D 5″ rounds 1.83 1.83 1.83 1.83

7C/D and 8C/D 5″ rounds 1.83 1.83 1.83 1.83

1C1/2 5″ rounds 1.83 1.83 1.83 1.83

MINEX 54

W-50 UNDET 5 LB* 7.50 7.50 7.50 7.50

W-50 UNDET 20 LB 4.00 4.00 12.00 4.00

BOMBEX 5

Air-K MK-83** 1.25 1.25 1.25 1.25 * The use of 3.24 lb charges during AMNS training were conservatively modeled as 5 lb charges. ** One event using the MK 83 bombs consists of 4 bombs being dropped in succession. For example, in VACAPES Air K there are 5 MK 83 events, which mean that a total of 20 bombs will be dropped per year.

Acoustic Environment Seasonal SVP averages were obtained briefly described for each major type of for each training area. Sound propagation (the spreading or exercise. A more in-depth effects Seabed Geo-acoustics – The type of attenuation of sound) in the oceans of analysis is in Appendix A of the LOA sea floor influences how much sound is application. the world is affected by several absorbed and how much sound is environmental factors: water depth, reflected back into the water column. 1. FIREX (with IMPASS) variations in sound speed within the Wind Speeds –\ Several Modeling was completed for a 5–in. water column, surface roughness, and environmental inputs, such as wind the geo-acoustic properties of the ocean speed and surface roughness, are round, 8–lb NEW charge exploding at a bottom. These parameters can vary necessary to model acoustic propagation depth of 1 ft (0.3 m). The analytical widely with location. in the prospective training areas. approach begins using a high-fidelity Four types of data are used to define Bathymetry data – Bathymetry data acoustic model to estimate energy in the acoustic environment for each are necessary to model acoustic each 5–in. explosive round. Impact analysis site: propagation and were obtained for each areas are calculated by summing the Seasonal Sound Velocity Profiles of the training areas. energy from multiple explosions over a (SVP) – Plots of propagation speed firing exercise (FIREX) mission, and (velocity) as a function of depth, or Acoustic Effects Analysis determining the impact area based on SVPs, are a fundamental tool used for The acoustic effects analysis the thresholds and criteria. Level B predicting how sound will travel. presented in the following sections is exposures were determined based on

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the 177 dB re 1 microPa2–sec (energy) time and space distribution of 39 missions (each with four to six rounds criteria for behavioral disturbance explosions, as well as the movement of fired) and one pre-FIREX action (with (without TTS) due to the use of multiple animals over the several hours of the six rounds fired). Table 8 shows the explosions. exercise. The total impact area for the Zone of Influence (ZOI) results of the Impact areas for a full FIREX (with 39–shot event is calculated as the sum model estimation. IMPASS) event must account for the of small effect areas for seven FIREX

TABLE 8. ESTIMATED ZOIS (KM2) FOR A SINGLE FIREX (WITH IMPASS) EVENT (39 ROUNDS)

Level B ZOI @ 177 dB re 1 μ 2 Level B ZOI @ Level A ZOI @ 205 dB re 1 Area* Pa –sec (multiple detonations 2 only) 23 psi-ms microPa –sec or 13 psi-ms

5C/D NA** 3.7044 0.16464

7C/D and 8C/D VACAPES 5C/D 5.6595 3.7044 0.16464

1C1/2 NA** 3.7044 0.16464 *Please see Figure 1 on page 2–2 of the LOA application for the locations of these areas. **In these areas, which occur in deeper water, the 23 psi-ms criteria dominates over the 177 dB re 1 microPa2–sec behavioral disturbance cri- teria and therefore was used in the analysis.

The ZOI, when multiplied by the the participants involved must be able temporal distribution of the detonations animal densities and the total number of to observe the intended ordnance as well as the effective accumulation of events (Table 7), provides the exposure impact area to ensure the area is free of the resultant acoustics. In view of the estimates for that animal species for the range transients, however, this ZOI determinations, the sequential nominal exercise case of 39 5–in. observation would be conducted from detonations are modeled as a single explosive rounds. The potential effects the firing position or other safe distance. point event with only the EFD summed would occur within a series of small Due to distance between the firing incoherently. The multiple explosion impact areas associated with the pre- position and the safety zone, lookouts energy criterion was used to determine calibration rounds and missions spread are only expected to visually detect the ZOI for the Level B without TTS out over a period of several hours. breaching whales, whale blows, and exposure analysis. Additionally, target locations are large pods of dolphins and porpoises. Table 9 shows the ZOI results of the changed from event to event and Firing would not commence unless the model estimation. The ZOI, when because of the time lag between events, intended ordnance impact area is multiplied by the animal densities and it is highly unlikely, even if a marine visible. Implementation of mitigation total number of events (Table 7), mammal were present (not accounting measures like these reduce the provides the exposure estimates for that for mitigation), that the marine mammal likelihood of exposure and potential animal species for the given bomb effects in the ZOI and eliminate the would be within the small exposure source. likelihood of mortality. zone for more than one event. BOMBEX is restricted to one location FIREX (with IMPASS) is restricted to 2. BOMBEX in the VACAPES Range Complex. In three locations in the VACAPES Range Modeling was completed for one addition to other mitigation measures, Complex. In addition to other mitigation explosive source involved in BOMBEX, aircraft will survey the target area for measures, dedicated lookouts monitor each assumed detonation at 1–m depth. marine mammals before and during the the target area for marine mammals The NEW used in simulations of the exercise. Ships will not fire on the target before the exercise, during the MK83 is 415.8–lb. Determining the ZOI until the area is surveyed and deployment of the IMPASS array, and for the thresholds in terms of total determined to be free of marine during the return to firing position. energy flux density (EFD), impulse, mammals. The exercise will be Prior to the exercise, the area would be peak pressure and 1/3–octave bands suspended if any marine mammals enter visually monitored when the IMPASS EFD must treat the sequential the buffer area. Implementation of sonobuoy array is being deployed by the explosions differently than the single mitigation measures like these ship at the detonation location, as well detonations. For the MK–83, two factors effectively reduce exposures in the ZOI as while returning to the firing position. are involved for the sequential and eliminate the likelihood of During the actual firing of the weapon, explosives that deal with the spatial and mortality.

TABLE 9. ESTIMATED ZOIS (KM2) FOR BOMBEX

Level B ZOI @ 177 dB re 1 Level B ZOI @ 182 dB re 1 Level A ZOI @ 205 dB re 1 Mortality ZOI @ 30.5 psi 2 2 2 Ord- microPa -sec (multiple detonations microPa -sec or 23 psi microPa -sec or 13 psi Area nance only) Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall

Air-K MK- 135.04 555.51 713.99 912.05 NA NA NA NA 4.28 4.01 6.39 4.55 0.05 0.05 0.05 0.05 83*

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3. MINEX At Sea Training (VAST)/IMPASS (DoN, highly unlikely, even if a marine The Comprehensive Acoustic System 2003). There was, however, little mammal were present (not accounting Simulation/Gaussian Ray Bundle seasonal dependence. As a result, the for mitigation), that the marine mammal (CASS/GRAB) (OAML, 2002) model, ZOIs are stated as mean values with a would be within the small exposure modified to account for impulse percentage variation. Generally, in the zone for more than one detonation. response, shock-wave waveform, and case of ranges determined from energy Underwater detonations are restricted to nonlinear shock-wave effects, was run metrics, as the depth of water increases, one area in the VACAPES Range for acoustic-environmental conditions the range shortens. The single explosion Complex. In addition to other mitigation derived from the Oceanographic and TTS-energy criterion (182 dB re 1 measures, observers will survey the 2• Atmospheric Master Library (OAML) microPa sec) was dominant and target area for marine mammals for 30 standard databases. The explosive therefore used to determine the ZOI for minutes pre- and 30 minutes post- source was modeled with standard the Level B exposure analysis. Table 10 detonation. Detonations will be similitude formulas, as in the Churchill shows the ZOI results of the model suspended if a marine mammal enters FEIS. Because all the sites are shallow estimation. the Zone of Influence and will only (less than 50 m), propagation model The total ZOI, when multiplied by the restart after the area has been clear for runs were made for bathymetry in the animal densities and total number of a full 30 minutes. Implementation of range from 10 m to 40 m. events (Table 7), provides the exposure mitigation measures like these reduce Estimated ZOIs varied as much within estimates for that animal species for the likelihood of exposure and potential a single area as from one area to another, each specified charge. Because of the effects in the ZOI and eliminate the which had been the case for the Virtual time lag between detonations, it is likelihood of mortality.

TABLE 10. ESTIMATED ZOIS (KM2) FOR MINEX

ZOIs Threshold 5–lb shot 20–lb shot

Level A ZOI @ 13 psi 0.03 km2 ± 10% 0.13 km2 ± 10%

Level B ZOI @ 182 dB re 1 microPa2•sec 0.2 km2 ± 25% 0.8 km2 ± 25%

4. MISSILEX (Hellfire, Harm, and The NEW used in simulations of the aircraft will survey the target area for Maverick) Hellfire and Maverick missiles are 8 lbs marine mammals before and during the and 100 lbs, respectively. The single exercise. Ships will not fire on the target The HARM missile explodes no less explosion TTS-energy criterion (182 dB until the area is clear of marine than 30 feet (9.1 m) above the surface of re 1 microPa2–sec) was used to mammals, and will suspend the exercise the water, so it is assumed the amount determine the ZOI for the Level B if any enter the buffer area. of acoustic energy entering the water exposure analysis. Table 11 shows the Implementation of mitigation measures will be negligible. Therefore, modeling ZOI results of the model estimation. like these reduce the likelihood of was completed for two of the explosive MISSILEX is restricted two locations in exposure and potential effects in the missiles involved in MISSILEX, each the VACAPES Range Complex. In ZOI. assumed detonation at 1–meter depth. addition to other mitigation measures,

TABLE 11. ESTIMATED ZOIS (KM2) FOR MISSILEX

@ 182 dB re 1 microPa2-s Level B @ 205 dB re 1 microPa2-s Level A Mortality ZOI @ 30.5 psi Area Ordnance ZOI or 23 psi ZOI or 13 psi Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall

Air-K Hellfire 0.44 0.49 0.48 0.49 0.02 0.02 0.02 0.02 <0.01 <0.01 <0.01 <0.01 W-72A (2) Hellfire 0.58 0.60 0.57 0.59 0.03 0.02 0.02 0.02 <0.01 <0.01 <0.01 <0.01 Air-K Maverick 1.99 2.80 10.56 1.64 0.09 0.07 0.07 0.09 0.04 0.02 0.04 0.04

The total ZOI, when multiplied by the Summary of Potential Expsosures from An explosive analysis was conducted animal densities and total number of Explosive Ordnance Use to estimate the number of marine events (Table 7), provides the exposure mammals that could be exposed to estimates for that animal species for Explosions that occur in the impacts from explosions. Table 12 each specified missile. Because of the VACAPES Range Complex are provides a summary of the explosive time lag between detonations, it is associated with training exercises that analysis results. Exposure estimates highly unlikely, even if a marine use explosive ordnance, including could not be calculated for many mammal were present (not accounting bombs (BOMBEX), missiles (MISSILEX), species (blue whale, sei whale, Bryde’s for mitigation), that the marine mammal 5–in. explosive naval gun shells with whale, killer whale, pygmy killer whale, would be within the small exposure FIREX (with IMPASS), as well as false killer whale, melon-headed whale, zone for more than one detonation. underwater detonations associated with spinner dolphin, Fraser’s dolphin, Mine Neutralization training (MINEX). Atlantic white-sided dolphin, and Explosive ordnance use is limited to harbor porpoise) because density data specific training areas. could not be calculated due to the

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limited available data for these species. would have high detection rates at the pantropical spotted dolphins, Risso’s However, since these species are surface because of their large body size dolphins, rough-toothed dolphin, and considered rare in the VACAPES Range and pronounced blows. Because of large striped dolphins. Implementation of Complex, they are not expected to be group sizes, it is likely that lookouts mitigation measures will reduce the exposed to explosive detonations. Fin, would detect Atlantic spotted dolphins, likelihood of exposure and potential humpback whales, and sperm whales bottlenose dolphins, Clymene, common, effects.

TABLE 12. SUMMARY OF POTENTIAL EXPOSURES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE VACAPES RANGE COMPLEX

Potential Exposures @ Potential Exposures @ Potential Exposures @ 177 dB re 1 microPa2- Potential Exposures @ Species/Training Operation 182 dB re 1 microPa2- 205 dB re 1 microPa2- s (multiple detonations s or 23 psi s or 13 psi 30.5 psi only)

Fin whale

BOMBEX training 2 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 0 NA 0 0

MINEX training NA 0 0 0

Total Exposures 2 0 0 0

Humpback whale

BOMBEX training 2 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 0 NA 0 0

MINEX training NA 0 0 0

Total Exposures 2 0 0 0

North Atlantic right whale

BOMBEX training 0 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 0 NA 0 0

MINEX training NA 0 0 0

Total Exposures 0 0 0 0

Sperm whale

BOMBEX training 0 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 2 NA 0 0

MINEX training NA 0 0 0

Total Exposures 2 0 0 0

Atlantic Spotted dolphin

BOMBEX training 9 NA 0 0

MISSILEX training NA 4 0 0

FIREX training 30 NA 1 0

MINEX training NA 0 0 0

Total Exposures 39 4 1 0

Beaked whale

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TABLE 12. SUMMARY OF POTENTIAL EXPOSURES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE VACAPES RANGE COMPLEX—Continued

Potential Exposures @ Potential Exposures @ Potential Exposures @ 177 dB re 1 microPa2- Potential Exposures @ Species/Training Operation 182 dB re 1 microPa2- 205 dB re 1 microPa2- s (multiple detonations s or 23 psi s or 13 psi 30.5 psi only)

BOMBEX training 0 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 0 NA 0 0

MINEX training NA 0 0 0

Total Exposures 0 0 0 0

Bottlenose dolphin

BOMBEX training 17 NA 0 0

MISSILEX training NA 7 0 0

FIREX training 5 NA 0 0

MINEX training NA 0 0 0

Total Exposures 22 7 0 0

Clymene dolphin

BOMBEX training 31 NA 0 0

MISSILEX training NA 1 0 0

FIREX training 1 NA 0 0

MINEX training NA 0 0 0

Total Exposures 32 1 0 0

Common dolphin

BOMBEX training 2,059 NA 17 0

MISSILEX training NA 97 2 1

FIREX training 37 NA 1 0

MINEX training NA 0 0 0

Total Exposures 2,096 97 20 1

Kogia spp.

BOMBEX training 3 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 0 NA 0 0

MINEX training NA 0 0 0

Total Exposures 3 0 0 0

Minke whale

BOMBEX training 0 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 0 NA 0 0

MINEX training NA 0 0 0

Total Exposures 0 0 0 0

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TABLE 12. SUMMARY OF POTENTIAL EXPOSURES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE VACAPES RANGE COMPLEX—Continued

Potential Exposures @ 2 Potential Exposures @ Potential Exposures @ 177 dB re 1 microPa - 2 2 Potential Exposures @ Species/Training Operation 182 dB re 1 microPa - 205 dB re 1 microPa - 30.5 psi s (multiple detonations s or 23 psi s or 13 psi only)

Pantropical spotted dolphin

BOMBEX training 64 NA 1 0

MISSILEX training NA 3 0 0

FIREX training 2 NA 0 0

MINEX training NA 1 0 0

Total Exposures 66 4 1 0

Pilot whales

BOMBEX training 1 NA 0 0

MISSILEX training NA 2 0 0

FIREX training 7 NA 0 0

MINEX training NA 0 0 0

Total Exposures 8 2 0 0

Risso’s dolphin

BOMBEX training 11 NA 0 0

MISSILEX training NA 2 0 0

FIREX training 3 NA 0 0

MINEX training NA 0 0 0

Total Exposures 14 2 0 0

Rough-toothed dolphin

BOMBEX training 1 NA 0 0

MISSILEX training NA 0 0 0

FIREX training 0 NA 0 0

MINEX training NA 0 0 0

Total Exposures 1 0 0 0

Striped dolphin

BOMBEX training 1 NA 0 0

MISSILEX training NA 26 1 0

FIREX training 41 NA 2 0

MINEX training NA 0 0 0

Total Exposures 42 26 3 0 Note: Events were either modeled for 177 dB re 1 microPa2 sec due to multiple detonations (BOMBEX and FIREX) or modeled for 182 dB re 1 microPa2 sec or 23 psi due to single detonations (MISSILEX and MINEX). Therefore, for BOMBEX and FIREX the NA refers to the criteria that were less dominant and therefore not used in the analysis. For MISSILEX and MINEX the NA refers to the fact that these events are not multiple detonations and therefore not modeled at 177 dB re 1 microPa2 sec.

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VI. Potential Effects of Exposures to exposed to levels that constitute MMPA as well as eliminate any future Explosives Level B harassment may experience a reproductive potential. Effects from exposure to explosives temporary threshold shift (TTS), which Based on best available science, vary depending on the level of may result in a slight, recoverable loss NMFS preliminarily concludes that exposure. Animals exposed to levels of hearing sensitivity (DoN, 2001). takes from explosive ordnance and that constitute MMPA Level B Exposures that reach Level A underwater detonations would result in harassment may experience a behavioral harassment may result in long-term only short-term effects to most injuries such as permanent threshold disruption from the use of explosive individuals exposed and would likely shift (PTS). The resulting injuries may ordnance. Behavioral responses can not affect annual rates of recruitment or include shorter surfacings, shorter limit an animal’s ability to find food, communicate with other animals, and/ survival of the species. The mitigation dives, fewer blows per surfacing, longer measures presented below would intervals between blows (breaths), or interpret the environment around further reduce the potential for ceasing or increasing vocalizations, them. Impairment of these abilities can shortening or lengthening vocalizations, decrease an individual’s chance of exposures, and there would be no and changing frequency or intensity of survival or impact their ability to mortality of marine mammals from the vocalizations (NRC, 2005). However, it successfully reproduce. Level A proposed training activities. Table 13 is not known how these responses relate harassment will have a long-term provides a list of potential takes of to significant effects (e.g., long-term impact on an exposed individual. marine mammal species as a result of effects or population consequences) Mortality of an animal will remove the proposed VACAPES Range Complex (NRC, 2005). In addition, animals the animal entirely from the population training activities.

TABLE 13. SUMMARY OF POTENTIAL TAKES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE VACAPES RANGE COMPLEX

Species Level B harassment Level A harassment Mortality

Fin whale 2 0 0

Humpback whale 2 0 0

North Atlantic right whale 0 0 0

Sperm whale 2 0 0

Atlantic spotted dolphin 39 5 0

Beaked whales 0 0 0

Bottlenose dolphin 22 7 0

Clymene dolphin 32 1 0

Common dolphin 2,096 117 0

Kogia sp. 3 0 0

Pantropical spotted dolphin 66 5 0

Pilot whale 8 2 0

Risso’s dolphin 14 2 0

Rough-toothed dolphin 1 0 0

Striped dolphin 42 29 0

Proposed Mitigation Measures mammals, sea turtles) and all applicable units. The lookout training disturbances (e.g., surface disturbance, program incorporates MSAT, which General Maritime Measures discoloration) that may be indicative of addresses the lookout’s role in I. Personnel Training Lookouts a threat to the vessel and its crew. There environmental protection, laws are personnel serving as lookouts on governing the protection of marine The use of shipboard lookouts is a station at all times (day and night) when species, Navy stewardship critical component of all Navy standard a ship or surfaced submarine is moving commitments, and general observation operating procedures. Navy shipboard through the water. information, including more detailed lookouts (also referred to as For the past few years, the Navy has information for spotting marine ‘‘watchstanders’’) are highly qualified implemented marine mammal spotter mammals. MSAT has been reviewed by and experienced observers of the marine training for its bridge lookout personnel NMFS and acknowledged as suitable environment. Their duties require that on ships and submarines. This training they report all objects sighted in the has been revamped and updated as the training. MSAT may also be viewed on- water to the Officer of the Deck (OOD) Marine Species Awareness Training line at https://portal.navfac.navy.mil/ (e.g., trash, a periscope, marine (MSAT) and is provided to all go/msat.

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1. All bridge personnel, Commanding II. Operating Procedures & Collision change of course will create an Officers, Executive Officers, officers Avoidance imminent and serious threat to a person, standing watch on the bridge, maritime 1. Prior to major exercises, a Letter of vessel, or aircraft, and to the extent patrol aircraft aircrews, and Mine Instruction, Mitigation Measures vessels are restricted in their ability to Warfare (MIW) helicopter crews will Message or Environmental Annex to the maneuver. Restricted maneuverability complete MSAT. Operational Order will be issued to includes, but is not limited to, situations 2. Navy lookouts will undertake further disseminate the personnel when vessels are engaged in dredging, extensive training to qualify as a training requirement and general marine submerged operations, launching and watchstander in accordance with the species mitigation measures. recovering aircraft or landing craft, Lookout Training Handbook 2. Commanding Officers will make minesweeping operations, (NAVEDTRA 12968–D). use of marine species detection cues replenishment while underway and and information to limit interaction towing operations that severely restrict 3. Lookout training will include on- with marine species to the maximum a vessel’s ability to deviate course. the-job instruction under the extent possible consistent with safety of Vessels will take reasonable steps to supervision of a qualified, experienced the ship. alert other vessels in the vicinity of the watchstander. Following successful 3. While underway, surface vessels whale. completion of this supervised training will have at least two lookouts with 10. Where feasible and consistent period, lookouts will complete the binoculars; surfaced submarines will with mission and safety, vessels will Personal Qualification Standard have at least one lookout with avoid closing to within 200–yd (183 m) Program, certifying that they have binoculars. Lookouts already posted for of marine mammals other than whales demonstrated the necessary skills (such safety of navigation and man-overboard as detection and reporting of partially precautions may be used to fill this (whales addressed above). submerged objects). requirement. As part of their regular 11. Floating weeds, algal mats, 4. Lookouts will be trained in the duties, lookouts will watch for and Sargassum rafts, clusters of seabirds, most effective means to ensure quick report to the OOD the presence of and jellyfish are good indicators of and and effective communication within the marine mammals and sea turtles. marine mammal presence. Therefore, command structure to facilitate 4. On surface vessels equipped with a increased vigilance in watching for implementation of protective measures mid-frequency active sonar, pedestal marine mammals will be taken where if marine species are spotted. mounted ‘‘Big Eye’’ (20x110) binoculars these indicators are present. will be properly installed and in good 5. Surface lookouts would scan the 12. Navy aircraft participating in working order to assist in the detection exercises at sea will conduct and water from the ship to the horizon and of marine mammals and sea turtles in maintain, when operationally feasible be responsible for all contacts in their the vicinity of the vessel. and safe, surveillance for marine species sector. In searching the assigned sector, 5. Personnel on lookout will employ of concern as long as it does not violate the lookout would always start at the visual search procedures employing a forward part of the sector and search aft scanning method in accordance with the safety constraints or interfere with the (toward the back). To search and scan, Lookout Training Handbook accomplishment of primary operational the lookout would hold the binoculars (NAVEDTRA 12968–D). duties. Marine mammal detections will steady so the horizon is in the top third 6. After sunset and prior to sunrise, be reported immediately to the assigned of the field of vision and direct the eyes lookouts will employ Night Lookouts Aircraft Control Unit for further just below the horizon. The lookout Techniques in accordance with the dissemination to ships in the vicinity of would scan for approximately five Lookout Training Handbook the marine species as appropriate where seconds in as many small steps as (NAVEDTRA 12968–D). it is reasonable to conclude that the possible across the field seen through 7. While in transit, naval vessels will course of the ship will likely result in the binoculars. They would search the be alert at all times, use extreme a closing of the distance to the detected entire sector in approximately five- caution, and proceed at a ‘‘safe speed’’ marine mammal. degree steps, pausing between steps for so that the vessel can take proper and 13. All vessels will maintain logs and approximately five seconds to scan the effective action to avoid a collision with records documenting training field of view. At the end of the sector any marine animal and can be stopped operations to support event search, the glasses would be lowered to within a distance appropriate to the reconstruction, as necessary. Logs and allow the eyes to rest for a few seconds, prevailing circumstances and records will be kept for a period of 30 and then the lookout would search back conditions. days following completion of a major across the sector with the naked eye. 8. When whales have been sighted in training exercise. the area, Navy vessels will increase 6. At night, lookouts would not sweep vigilance and implement measures to Coordination and Reporting the horizon with their eyes, because avoid collisions with marine mammals Requirements eyes do not see well when they are and activities that might result in close moving. Lookouts would scan the interaction of naval assets and marine The Navy will coordinate with the horizon in a series of movements that mammals. Such measures shall include local NMFS Stranding Coordinator for would allow their eyes to come to changing speed and/or direction and any unusual marine mammal behavior periodic rests as they scan the sector. would be dictated by environmental and and any stranding, beached live/dead, When visually searching at night, they other conditions (e.g., safety, weather). or floating marine mammals that may would look a little to one side and out 9. Naval vessels will maneuver to occur at any time during or within 24 of the corners of their eyes, paying keep at least 500 yds (460 m) away from hours after completion of training attention to the things on the outer any observed whale and avoid activities. Additionally, the Navy will edges of their field of vision. Lookouts approaching whales head-on. This follow internal chain of command will also have night vision devices requirement does not apply if a vessel’s reporting procedures as promulgated available for use. safety is threatened, such as when through Navy instructions and orders.

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Mitigation Measures Applicable to vessels that would transit to and from the Hampton Roads entrance to the Vessel Transits in the Mid-Atlantic East Coast ports and OPAREAs. Chesapeake Bay, which includes the during North Atlantic Right Whale Seasonal migration of right whales is concentration of Atlantic Fleet vessels Migration generally described by NMFS as in Norfolk, Virginia. Navy vessels are occuring from October 15th through required to use extreme caution and For purposes of these measures, the April 30th, when right whales migrate operate at a slow, safe speed consistent mid-Atlantic is defined broadly to between feeding grounds farther north with mission and safety during the include ports south and east of Block and calving grounds farther south. The months indicated in Table 13 below and Island Sound southward to South Navy mitigation measures have been within a 20 nm (37 km) arc (except as Carolina. The procedure described established in accordance with rolling noted) of the specified reference points. below would be established as dates identified by NMFS consistent mitigation measures for Navy vessel with these seasonal patterns. During the indicated months, Navy transits during North Atlantic right NMFS has identified ports located in vessels would practice increased whale migratory seasons near ports the western Atlantic Ocean, offshore of vigilance with respect to avoidance of located off the western North Atlantic, the southeastern United States, where vessel-whale interactions along the mid- offshore of the eastern United States. vessel transit during right whale Atlantic coast, including transits to and The mitigation measures would apply to migration is of highest concern for from any mid-Atlantic ports not all Navy vessel transits, including those potential ship strike. The ports include specifically identified above.

TABLE 14. NORTH ATLANTIC RIGHT WHALE MIGRATION PORT REFERENCES

Region Months Port Reference Points

South and East of Block Island Sep-Oct and Mar-Apr 37 km (20 nm) seaward of line 41°4.49 N, 71°51.15 W and 41°18.58 N, 70°50.23 W

New York/New Jersey Sep-Oct and Feb-Apr 40°30.64 N, 73°57.76 W

Delaware Bay (Philadelphia) Oct-Dec and Feb-Mar 38°52.13 N, 75°01.93 W

Chesapeake Bay (Hampton Roads and Baltimore) Nov-Dec and Feb-Apr 37°01.11 N, 75°57.56 W

North Carolina Dec-Apr 34°41.54 N, 76°40.20 W

South Carolina Oct-Apr 33°11.84 N, 79°08.99 W and 32°43.39 N, 79°48.72 W

Proposed Mitigation Measures for Eyes’’ prior to the event, during retrieval of the IMPASS sonobuoy array Specific At-sea Training Events deployment of the IMPASS sonobuoy following each firing exercise. 6. FIREX with IMPASS will take place The proposed mitigation measures in array, and during return to the firing during daylight hours only. the following sections are standard position. Ships will maintain a lookout 7. FIREX with IMPASS will only be operating procedures currently in place used in Beaufort Sea State three (3) or and would be used in the future for all dedicated to visually searching for marine mammals 180o along the ship less. activities being analyzed in this 8. The visibility must be such that the document. track line and 360o at each buoy drop- off location. fall of shot is visible from the firing ship I. Firing Exercise (FIREX) Using the 3. ‘‘Big Eyes’’ on the ship will be used during the exercise. 9. No firing would occur if marine Integrated Maritime Portable Acoustic to monitor a 640 yd (585 m) buffer zone mammals are detected within 70 yd (64 Scoring System (IMPASS) (5–in. around the target area for marine m) of the vessel. Explosive Rounds) mammals during naval-gunfire events. Historically FIREX using IMPASS Due to the distance between the firing II. Air-to-Surface At-Sea Bombing occurs in four areas in the VACAPES position and the buffer zone, lookouts Exercises (250–lbs to 2,000–lbs Range Complex. The locations were are only expected to visually detect explosive bombs) established to be far enough from shore breaching whales, whale blows, and This activity occurs in two locations to reduce civilian encounters (e.g., large pods of dolphins and porpoises. in the VACAPES Study Area. The diving and recreational fishing), while 4. Ships will not fire on the target if locations were established to be far remaining a reasonable day’s distance marine mammals are detected within or enough from shore to reduce civilian from the homeport of Norfolk, Virginia approaching the 640 yd (585 m) buffer encounters (e.g., diving and recreational of participating ships. Surface ships zone. If marine mammals are present, fishing), while remaining within 150 nm conducting FIREX with IMPASS do not operations would be suspended. Visual from shore-based facilities (the have strict distance from land observation will occur for established flight distance restriction for restrictions like aircraft that embark approximately 45 minutes, or until the F-A18 jets during unit level training from shore-based facilities. animal has been observed to have events). 1. FIREX using IMPASS would only cleared the area and is heading away 1. Aircraft will visually survey the be conducted in the four designated from the buffer zone. target and buffer zone for marine areas in the VACAPES Range Complex. 5. Post-exercise monitoring of the mammals prior to and during the 2. Pre-exercise monitoring of the entire effect range will take place with exercise. The survey of the impact area target area will be conducted with ‘‘Big ‘‘Big Eyes’’ and the naked eye during the will be made by flying at 1,500 ft

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altitude or lower, if safe to do so, and daylight hours therefore the distance • Results from general marine at the slowest safe speed. Release of from shore is limited. mammal and sound research (funded by ordnance through cloud cover is 1. This activity will only occur in W– the Navy (described below) or prohibited: aircraft must be able to 50 of the VACAPES Range Complex. otherwise) actually see ordnance impact areas. 2. Observers will survey the Zone of Mitigation measures could be Survey aircraft should employ most Influence (ZOI), a 656 yd (600 m) radius modified or added if new data suggests effective search tactics and capabilities. from detonation location, for marine that such modifications would have a 2. A buffer zone of 5,100–yd (4,663 m) mammals from all participating vessels reasonable likelihood of accomplishing radius would be established around the during the entire operation. A survey of the goals of mitigation laid out in this intended target zone. The exercises will the ZOI (minimum of 3 parallel proposed rule and if the measures are be conducted only if the buffer zone is tracklines 219 yd [200 m] apart) using practicable. NMFS would also clear of sighted marine mammals. support craft will be conducted at the coordinate with the Navy to modify or 3. At-sea BOMBEXs using live detonation location 30 minutes prior add to the existing monitoring ordnance will occur during daylight through 30 minutes post detonation. requirements if the new data suggest hours only. Aerial survey support will be utilized that the addition of a particular measure whenever assets are available. would more effectively accomplish the III. Air-to-Surface Missile Exercises 3. Detonation operations will be goals of monitoring laid out in this (Explosive) conducted during daylight hours. proposed rule. The reporting 1. Aircraft will initially survey the 4. If a marine mammal is sighted requirements associated with this rule intended ordnance impact area for within the ZOI, the animal will be are designed to provide NMFS with marine mammals. During the actual allowed to leave of its own volition. The monitoring data from the previous year firing of the weapon, the aircraft Navy will suspend detonation exercises to allow NMFS to consider the data in involved must be able to observe the and ensure the area is clear for a full 30 issuing annual LOAs. NMFS and the intended ordnance impact area to minutes prior to detonation. Navy will meet annually prior to LOA ensure the area is free of range 5. Divers placing the charges on mines issuance to discuss the monitoring transients, however, this observation and dive support vessel personnel will reports, Navy R&D developments, and would be conducted from the firing survey the area for marine mammals current science and whether mitigation position or other safe distance. Visual and will report any sightings to the or monitoring modifications are inspection of the target area will be surface observers. These animals will be appropriate. allowed to leave of their own volition made by flying at 1,500 ft altitude or Monitoring and Reporting Measures lower, if safe to do so, and at slowest and the ZOI will be clear for 30 minutes The Navy would be required to safe speed. Firing or range clearance prior to detonation. 6. No detonations will take place cooperate with the NMFS, and any other aircraft must be able to actually see within 3.2 NM (6 km) of an estuarine Federal, state or local agency monitoring ordnance impact areas. Explosive inlet (Chesapeake Bay Inlets). the impacts of the activity on marine ordnance shall not be targeted to impact 7. No detonations will take place mammals. within 1,800 yd (1,646 m) of sighted within 1.6 nm (3 km) of shoreline. The Navy must notify NMFS marine mammals. 8. No detonations will take place immediately (or as soon as clearance IV. Mine Neutralization Training within 1,000 ft (305 m) of any artificial procedures allow) if the specified Involving Underwater Detonations (up reef, shipwreck, or live hard-bottom activity is thought to have resulted in to 20–lb charges) community. the mortality or injury of any marine 9. Personnel will record any protected mammals, or in any take of marine Mine neutralization involving species observations during the exercise mammals not identified in this underwater detonations occurs in as well as measures taken if species are document. shallow water (0 - 120 ft, or 0 – 36 m) detected within the ZOI. The Navy must conduct all and is executed by divers using scuba. monitoring and/or research required Adaptive Management NMFS issued a Biological Opinion (BO) under the Letter of Authorization, if in 2002 for underwater detonations of The final regulations governing the issued. The monitoring methods up to 20–lb explosive charges related to take of marine mammals incidental to proposed for use during training events MINEX training (NMFS, 2002). Navy training exercises in VACAPES in the VACAPES Range Complex Historically this activity has occurred in will contain an adaptive management include a combination of individual shallow water portions of W–50 in the component. The use of adaptive elements designed to allow a VACAPES Study Area per this BO. This management will give NMFS the ability comprehensive assessment and include: location is just offshore from NAS to consider new data from different (1) Vessel and aerial surveys Oceana Dam Neck Annex, a restricted- sources to determine (in coordination (i) Visual surveillance of 2 events per access Naval Installation and overlaps with the Navy), on an annual basis, if year. The primary goal will be to survey an established Surface Danger Zone for new or modified mitigation or two different types of explosive events live ordnance use, therefore civilian monitoring measures are appropriate for with one of them being a multiple encounters are minimized. This location subsequent annual LOAs. Following are detonation event. has a low bathymetric relief and a sand- some of the possible sources of (ii) For specified training events, silt bottom. applicable data: aerial or vessel surveys will be used 1– These exercises utilize small boats • Results from the Navy’s monitoring 2 days prior to, during (if reasonably that deploy from shore based facilities. from the previous year (either from safe), and 1–5 days post detonation. The Often times these small boats are rigid- VACAPES or other locations) variation in the number of days after hulled inflatable boats (RHIBs) which • Compiled results of Navy funded allows for the detection of animals that are designed for shallow water and have research and development (R&D) studies gradually return to an area, if they limited seaworthiness necessitating a (presented pursuant to the ICMP, which indeed do change their distribution in nearshore location. The exercise is a is discussed elsewhere in this response to underwater detonation one-day event that occurs only during document) events.

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(iii) Surveys will include any Navy biologists and contracted assess the effects of training activities on specified exclusion zone around a biologists will be used; contracted marine species and investigate particular detonation point plus 2000 MMOs must have appropriate security population-level trends in marine yards beyond the exclusion zone. For clearance to board Navy platforms. species distribution, abundance, and vessel-based surveys a passive acoustic (iii) MMOs will not be placed aboard habitat use in various range complexes system (hydrophone or towed array) Navy platforms for every Navy training and geographic locations where Navy could be used to determine if marine event or major exercise, but during training occurs. Although the ICMP is mammals are in the area before and/or specifically identified opportunities intended to apply to all Navy training, after a detonation event. Depending on deemed appropriate for data collection use of mid-frequency active (MFA) animals sighted, it may be possible to efforts. The events selected for MMO sonar in training, testing, and research, conduct focal surveys of animals participation will take into account development, test, and evaluation outside of the exclusion zone safety, logistics, and operational (RDT&E) will comprise a major (detonations could be delayed if marine concerns. component of the overall program. mammals are observed within the (iv) MMOs will observe from the same The ICMP will establish the exclusion zone) to record behavioral height above water as the lookouts. overarching structure and coordination responses to the detonations. (v) The MMOs will not be part of the that will facilitate the collection and (iv) When conducting a particular Navy’s formal reporting chain of synthesis of monitoring data from Navy survey, the survey team will collect: command during their data collection training and research and development (A) species identification and group efforts; Navy lookouts will continue to projects. The Program will compile data size; serve as the primary reporting means from range-specific monitoring efforts as (B) location and relative distance from within the Navy chain of command for well as research and development (R&D) the detonation site; marine mammal sightings. The only studies that are fully or partially Navy- (C) the behavior of marine mammals exception is that if an animal is funded. Monitoring methods across the including standard environmental and observed within the shutdown zone that ranges will include methods such as oceanographic parameters; has not been observed by the lookout, vessel and aerial surveys, tagging, and (D) date, time and visual conditions the MMO will inform the lookout of the passive acoustic monitoring. associated with each observation; sighting for the lookout to take the The Navy will coordinate with the (E) direction of travel relative to the appropriate action through the chain of local NMFS Stranding Coordinator for detonation site; and command. any unusual marine mammal behavior (F) duration of the observation. (vi) The MMOs will collect species and any stranding, beached live/dead, (v) An aerial survey team will conduct identification, behavior, direction of or floating marine mammals that may pre- and post-aerial surveys, taking local travel relative to the Navy platform, and occur at any time during or within 24 oceanographic currents into account, of distance first observed. All MMO hours after completion of explosives the exercise area. sightings will be conducted according to training activities. (2) Passive acoustic monitoring a standard operating procedure. (i) When practicable, towed Report from Monitoring required in Estimated Take of Marine Mammals hydrophone array should be used paragraph (d) above – The Navy will As mentioned previously, for the whenever shipboard surveys are being submit a report annually on September purposes of MMPA authorizations, conducted. The towed array would be 1 describing the implementation and NMFS’ effects assessments have two deployed during daylight hours for each results (through June 1 of the same year) primary purposes (in the context of the of the days the ship is at sea. of the monitoring required. Standard VACAPES Range Complex Final Rule (ii) A towed hydrophone array is marine species sighting forms would be and subsequent LOA, if appropriate): (1) towed from the boat and can detect and provided by the Navy and data to describe the permissible methods of localize marine mammals that vocalize collection methods will be standardized taking within the context of MMPA and would be used to supplement the across ranges to allow for comparison in Level B Harassment (behavioral ship-based systematic line-transect different geographic locations. harassment), Level A Harassment surveys (particularly for species such as VACAPES Range Complex (injury), and mortality (i.e., identify the beaked whales that are rarely seen). Comprehensive Report The Navy will number and types of take that will (iii) The array would need to detect submit to NMFS a draft report that occur); and (2) to determine whether the low frequency vocalizations (<1,000 Hz) analyzes and summarizes all of the specified activity will have a negligible for baleen whales and relatively high multi-year marine mammal information impact on the affected species or stocks frequency vocalizations (up to 30 kHz) gathered during explosive exercises. of marine mammals (based on the for odontocetes such as sperm whales. This report will be submitted at the end likelihood that the activity will The use of two simultaneously deployed of the fourth year of the rule (November adversely affect the species or stock arrays can also allow more accurate 2012), covering activities that have through effects on annual rates of localization and determination of diving occurred through June 1, 2012. recruitment or survival). No subsistence patterns. The Navy will respond to NMFS uses will be affected by the proposed (3) Marine mammal observers on comments on the draft comprehensive action because no subsistence Navy platforms report if submitted within 3 months of communities are present within the (i) Marine mammal observers (MMOs) receipt. The report will be considered action area. will be placed on a Navy platform final after the Navy has addressed In the Assessment of Marine Mammal during one of the exercises being NMFS’ comments, or three months after Response to Anthropogenic Sound monitored per year. the submittal of the draft if NMFS does section, NMFS’ analysis identified the (ii) Qualifications must include not comment by then. lethal responses, physical trauma, expertise in species identification of To implement the aforementioned sensory impairment (permanent and regional marine mammal species and mitigation measures, the Navy is temporary threshold shifts and acoustic experience collecting behavioral data. developing an Integrated masking), physiological responses Experience as a NMFS marine mammal Comprehensive Monitoring Program (particular stress responses), and observer is preferred, but not required. (ICMP) for marine species in order to behavioral responses that could

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potentially result from exposures from conspecifics, predators, and prey. The Acoustic Take Criteria explosive ordnance. In this section, we following physiological mechanisms are will relate the potential effects to marine thought to play a role in inducing For the purposes of an MMPA mammals from underwater detonation auditory fatigue: effects to sensory hair incidental take authorization, three of explosives to the MMPA regulatory cells in the inner ear that reduce their types of take are identified: Level B definitions of Level A and Level B sensitivity, modification of the chemical Harassment; Level A Harassment; and Harassment and attempt to quantify the environment within the sensory cells, mortality (or serious injury leading to effects that might occur from the residual muscular activity in the middle mortality). The categories of marine specific training activities that the Navy ear, displacement of certain inner ear mammal responses (physiological and is proposing in the VACAPES Range membranes, increased blood flow, and behavioral) that fall into the two Complex. post-stimulatory reduction in both harassment categories were described in efferent and sensory neural output. Definition of Harassment the previous section. Ward (1997) suggested that when these Because the physiological and As mentioned previously, with effects result in TTS rather than PTS, respect to military readiness activities, they are within the normal bounds of behavioral responses of the majority of Section 3(18)(B) of the MMPA defines physiological variability and tolerance the marine mammals exposed to ‘‘harassment’’ as: (i) any act that injures and do not represent a physical injury. underwater detonations cannot be or has the significant potential to injure Additionally, Southall et al. (2007) detected or measured (not all responses a marine mammal or marine mammal indicate that although PTS is a tissue visible external to animal, portion of stock in the wild [Level A Harassment]; injury, TTS is not because the reduced exposed animals underwater (so not or (ii) any act that disturbs or is likely hearing sensitivity following exposure visible), many animals located many to disturb a marine mammal or marine to intense sound results primarily from miles form observers and covering very mammal stock in the wild by causing fatigue, not loss, of cochlear hair cells large area, etc.) and because NMFS must disruption of natural behavioral and supporting structures and is authorize take prior to the impacts to patterns, including, but not limited to, reversible. Accordingly, NMFS classifies marine mammals, a method is needed to migration, surfacing, nursing, breeding, TTS (when resulting from exposure to estimate the number of individuals that feeding, or sheltering, to a point where underwater detonations) as Level B will be taken, pursuant to the MMPA, such behavioral patterns are abandoned Harassment, not Level A Harassment based on the proposed action. To this or significantly altered [Level B (injury). end, NMFS developed acoustic criteria Harassment]. Level A Harassment that estimate at what received level Level B Harassment (when exposed to explosive Of the potential effects that were detonations) Level B Harassment, Level Of the potential effects that were described in the Assessment of Marine A Harassment, and mortality (for described in the Assessment of Marine Mammal Response to Anthropogenic explosives) of marine mammals would Mammal Response to Anthropogenic Sound section, following are the types occur. The acoustic criteria for Sound and the Explosive Ordnance of effects that fall into the Level A Exposure Analysis sections, following Harassment category: Underwater Detonations are discussed are the types of effects that fall into the PTS – PTS (resulting either from below. Level B Harassment category: exposure to explosive detonations) is Thresholds and Criteria for Impulsive Behavioral Harassment – Behavioral irreversible and considered to be an Sound disturbance that rises to the level injury. PTS results from exposure to described in the definition above, when intense sounds that cause a permanent Criteria and thresholds for estimating resulting from exposures to underwater loss of inner or outer cochlear hair cells the exposures from a single explosive detonations, is considered Level B or exceed the elastic limits of certain activity on marine mammals were Harassment. Some of the lower level tissues and membranes in the middle established for the Seawolf Submarine physiological stress responses discussed and inner ears and result in changes in Shock Test Final Environmental Impact in the Assessment of Marine Mammal the chemical composition of the inner Statement (FEIS) (‘‘Seawolf’’) and Response to Anthropogenic Sound ear fluids. subsequently used in the USS Winston section will also likely co-occur with Physical Disruption of Tissues S. Churchill (DDG–81) Ship Shock FEIS Resulting from Explosive Shock Wave – the predicted harassments, although (‘‘Churchill’’) (DoN, 1998 and 2001a). Physical damage of tissues resulting these responses are more difficult to NMFS adopted these criteria and from a shock wave (from an explosive detect and fewer data exist relating thresholds in its final rule on detonation) is classified as an injury. these responses to specific received unintentional taking of marine animals levels of sound. When Level B Blast effects are greatest at the gas-liquid interface (Landsberg, 2000) and gas- occurring incidental to the shock testing Harassment is predicted based on (NMFS, 2001a). Since the ship-shock estimated behavioral responses, those containing organs, particularly the lungs events involve only one large explosive takes may have a stress-related and gastrointestinal tract, are especially at a time, additional assumptions were physiological component as well. susceptible to damage (Goertner, 1982; Acoustic Masking and Hill 1978; Yelverton et al., 1973). Nasal made to extend the approach to cover Communication Impairment – Acoustic sacs, larynx, pharynx, trachea, and multiple explosions for FIREX (with masking is considered Level B lungs may be damaged by compression/ IMPASS) and BOMBEX. In addition, Harassment as it can disrupt natural expansion caused by the oscillations of this section reflects a revised acoustic behavioral patterns by interrupting or the blast gas bubble (Reidenberg and criterion for small underwater limiting the marine mammal’s receipt or Laitman, 2003). Severe damage (from explosions (i.e., 23 pounds per square transmittal of important information or the shock wave) to the ears can include inch [psi] instead of previous acoustic environmental cues. tympanic membrane rupture, fracture of criteria of 12 psi for peak pressure over TTS As discussed previously, TTS the ossicles, damage to the cochlea, all exposures), which is based on the can effect how an animal behaves in hemorrhage, and cerebrospinal fluid final rule issued to the Air Force by response to the environment, including leakage into the middle ear. NMFS (NMFS, 2005c).

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I.1. Thresholds and Criteria for Injurious BOMBEX. Since FIREX and portions of I.2.b. Single Explosion – TTS-Peak Physiological Impacts BOMBEX require multiple explosions, Pressure Threshold the Churchill approach had to be I.1.a. Single Explosion The second threshold applies to all extended to cover multiple sound species and is stated in terms of peak For injury, the Navy uses dual events at the same training site. For pressure at 23 psi (about 225 dB re 1 criteria: eardrum rupture (i.e., tympanic- multiple exposures, accumulated energy microPa). This criterion was adopted for membrane injury. These criteria are over the entire training time is the considered indicative of the onset of Precision Strike Weapons (PSW) Testing natural extension for energy thresholds and Training by Eglin Air Force Base in injury. The threshold for TM rupture since energy accumulates with each corresponds to a 50 percent rate of the Gulf of Mexico (NMFS, 2005b). It is subsequent shot (detonation); this is important to note that for small shots rupture (i.e., 50 percent of animals consistent with the treatment of exposed to the level are expected to near the surface (such as in this multiple arrivals in Churchill. For analysis), the 23–psi peak pressure suffer TM rupture); this is stated in positive impulse, it is consistent with terms of an Energy Flux Density Level threshold generally will produce longer Churchill to use the maximum value impact ranges than the 182–dB energy (EL) value of 1.17 inch pounds per over all impulses received. square inch (in-lb/in2) (about 205 dB re metric. Furthermore, it is not unusual 1 microPa2–sec). This recognizes that I.2. Thresholds and Criteria for Non- for the TTS impact range for the 23–psi TM rupture is not necessarily a serious Injurious Physiological Effects pressure metric to actually exceed the or life-threatening injury, but is a useful behavioral (without TTS) impact range index of possible injury that is well The Navy criterion for non-injurious for the 177–dB energy metric. correlated with measures of permanent harassment is TTS a slight, recoverable I.2.c. Multiple Explosions – TTS For multiple explosions, accumulated hearing impairment (Ketten [1998] loss of hearing sensitivity (DoN, 2001). energy over the entire training time is indicates a 30 percent incidence of PTS For this assessment, there are dual at the same threshold). criteria for TTS, an energy threshold the natural extension for energy The threshold for onset of slight lung and a peak pressure threshold. The thresholds since energy accumulates injury is calculated for a small animal criterion with the largest potential with each subsequent shot/detonation. (a dolphin calf weighing 26.9 lbs), and impact range (most conservative) either This is consistent with the energy is given in terms of the ‘‘Goertner the energy or peak pressure threshold, argument in Churchill. For peak modified positive impulse,’’ indexed to will be used in the analysis to determine pressure, it is consistent with Churchill 13 psi-msec (DoN, 2001). This threshold Level B TTS exposures. to use the maximum value over all is conservative since the positive impulses received. I.2.a. Single Explosion TTS-Energy impulse needed to cause injury is I.3. Thresholds and Criteria for Threshold proportional to animal mass, and Behavioral Effects therefore, larger animals require a The first threshold is a 182 dB re 1 I.3.a. Single Explosion higher impulse to cause the onset of microPa2–sec maximum energy flux injury. This analysis assumed the density level in any 1/3–octave band at For a single explosion, to be marine species populations were 100 frequencies above 100 Hertz (Hz) for consistent with Churchill, TTS is the percent small animals. The criterion toothed whales and in any 1/3–octave criterion for Level B. In other words, with the largest potential impact range band above 10 Hz for baleen whales. For because behavioral disturbance for a (most conservative), either TM rupture large explosives, as in the case of the single explosion is likely to be limited (energy threshold) or onset of slight lung Churchill FEIS, frequency range cutoffs to a short-lived startle reaction, use of injury (peak pressure), will be used in at 10 and 100 Hz make a difference in the TTS criterion is considered the analysis to determine Level A the range estimates. For small sufficient protection and therefore exposures. explosives (<1,500 lb NEW), as what behavioral effects (without TTS, impacts For mortality, the Navy uses the was modeled for this analysis, the would be limited to behavioral effects criterion corresponding to the onset of spectrum of the shot arrival is broad, only) are not considered for single extensive lung injury. This is and there is essentially no difference in explosions. conservative in that it corresponds to a impact ranges for toothed whales or 1 percent chance of mortal injury, and I.3.b. Multiple Explosions – Without baleen whales. yet any animal experiencing onset TTS severe lung injury is counted as a lethal The TTS energy threshold for For this analysis, the use of multiple exposure. For small animals, the explosives is derived from the Space explosions only applies to FIREX (with threshold is given in terms of the and Naval Warfare Systems Center IMPASS) and the MK–83 bombs used in Goertner modified positive impulse, (SSC) pure-tone tests for TTS (Schlundt BOMBEX. Because multiple explosions indexed to 30.5 psi-msec. Since the et al., 2000, Finneran and Schlundt would occur within a discrete time Goertner approach depends on 2004). The pure-tone threshold (192 dB period, a new acoustic criterion- propagation, source/animal depths, and as the lowest value) is modified for behavioral disturbance (without TTS) is animal mass in a complex way, the explosives by (a) interpreting it as an used to account for behavioral effects actual impulse value corresponding to energy metric, (b) reducing it by 10 dB significant enough to be judged as the 30.5 psi-msec index is a complicated to account for the time constant of the harassment, but occurring at lower noise calculation. To be conservative, the mammal ear, and (c) measuring the levels than those that may cause TTS. analysis used the mass of a calf dolphin energy in 1/3–octave bands, the natural The threshold is based on test results (at 26.9 lbs) for 100 percent of the filter band of the ear. The resulting published in Schlundt et al. (2000), with populations. threshold is 182 dB re 1 microPa2–sec derivation following the approach of the in any 1/3–octave band. The energy Churchill FEIS for the energy-based TTS I.1.b. Multiple Explosions threshold usually dominates and is used threshold. The original Schlundt et al. For this analysis, the use of multiple in the analysis to determine potential (2000) data and the report of Finneran explosions only applies to FIREX (with Level B TTS exposures for single and Schlundt (2004) are the basis for IMPASS) and the MK–83 bombs used in explosion ordnance. thresholds for behavioral disturbance

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(without TTS). As reported by Schlundt frequencies above 100 Hz for toothed dominates in the analysis to determine et al. (2000), instances of altered whales and in any 1/3–octave band potential Level B exposures due to the behavior generally began at lower above 100 Hz for baleen whales. As use of multiple explosions. exposures than those causing TTS; stated previously for TTS, for small however, there were many instances explosives (<1,500 lb NEW), as what II. Summary of Thresholds and Criteria when subjects exhibited no altered was modeled for this analysis, the for Impulsive Sounds behavior at levels above the onset-TTS spectrum of the shot arrival is broad, Table 15 summarizes the effects, levels. Regardless of reactions at higher and there is essentially no difference in criteria, and thresholds used in the or lower levels, all instances of altered impact ranges for whales. The behavior were included in the statistical behavioral disturbance (without TTS) assessment for impulsive sounds. The summary. impact range for FIREX with IMPASS criteria for behavioral effects without The behavioral disturbance (without can, especially in shallower water, be physiological effects used in this TTS) threshold for tones is derived from about twice the impact range for TTS. analysis are based on use of multiple the SSC tests, and is found to be 5 dB Based on modeling, for BOMBEX explosives that only take place during a below the threshold for TTS, or 177 dB involving MK–83 bombs, behavioral FIREX (w/IMPASS) event or a BOMBEX re 1 microPa2–sec maximum energy flux disturbance (without TTS) (177 dB re 1 event involving MK–83 bombs. density level in any 1/3–octave band at microPa2–s) is the criteria that

TABLE 15. EFFECTS, CRITERIA, AND THRESHOLDS FOR IMPULSIVE SOUNDS

Effect Criteria Metric Threshold Effect

Mortality Onset of Extensive Lung Goertner modified positive indexed to 30.5 psi-msec Mortality Injury impulse (assumes 100 percent small animal at 26.9 lbs)

Injurious 50% Tympanic Membrane Energy flux density 1.17 in-lb/in2 (about 205 Level A Physiological Rupture dB re 1 microPa2-sec)

Injurious Onset Slight Lung Injury Goertner modified positive indexed to 13 psi-msec Level A Physiological impulse (assumes 100 percent small animal at 26.9 lbs)

Non-injurious TTS Greatest energy flux den- 182 dB re 1 microPa2-sec Level B Physiological sity level in any 1/3-octave band (> 100 Hz for toothed whales and > 10 Hz for baleen whales) - for total energy over all expo- sures

Non-injurious TTS Peak pressure over all ex- 23 psi (for small explo- Level B Physiological posures sives <2,000 lbs, else 12 psi)

Non-injurious Multiple Explosions With- Greatest energy flux den- 177 dB re 1 microPa2-sec Level B Behavioral out TTS sity level in any 1/3-octave (> 100 Hz for toothed whales and > 10 Hz for baleen whales) - for total energy over all exposures (multiple explosions only)

The criteria for mortality, Level A Take Calculations each species that will likely be present Harassment, and Level B Harassment in the respective OPAREAs during the In estimating the potential for marine resulting from explosive detonations Navy training activities; mammals to be exposed to an acoustic (5) Applied the applicable acoustic were initially developed for the Navy’s source, the Navy completed the Sea Wolf and Churchill ship-shock trials threshold criteria to the predicted sound following actions: exposures from the proposed activity. and have not changed since other (1) Evaluated potential effects within MMPA authorizations issued for The results were then evaluated to the context of existing and current determined whether the predicted explosive detonations. The criteria, regulations, thresholds, and criteria; which are applied to cetaceans and sound exposures from the acoustic (2) Identified all acoustic sources that model might be considered harassment; pinnipeds are summarized in Table 8. will be used during Navy training and Additional information regarding the activities; (6) Considered potential harassment derivation of these criteria is available (3) Identified the location, season, and within the context of the affected in the Navy’s EIS for the VACAPES duration of the action to determine marine mammal population, stock, and Range Complex and in the Navy’s which marine mammal species are species to assess potential population CHURCHILL FEIS (U.S. Department of likely to be present; viability. Particular focus on the Navy, 2001c). (4) Determined the estimated number recruitment and survival are provided to of marine mammals (i.e., density) of analyze whether the effects of the action

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can be considered to have negligible water quality, the introduction of sound ESA effects to marine mammal species or a into the water column, and temporary population stock. changes to prey distribution and There are four marine mammal Starting with a sound source, the abundance. There is no critical habitat species that are listed as endangered attenuation of an emitted sound due to designated in the VACAPES Range under the ESA with confirmed or propagation loss is determined. Uniform Complex. possible occurrence in the VACAPES animal distribution is overlaid onto the Range Complex: humpback whale, calculated sound fields to assess if Analysis and Negligible Impact North Atlantic right whale, fin whale, animals are physically present at Determination and sperm whale. The Navy has begun sufficient received sound levels to be consultation with NMFS pursuant to Pursuant to NMFS regulations considered ‘‘exposed’’ to the sound. If section 7 of the ESA, and NMFS will implementing the MMPA, an applicant the animal is determined to be exposed, also consult internally on the issuance two possible scenarios must be is required to estimate the number of of an LOA under section 101(a)(5)(A) of considered with respect to the animal’s animals that will be ‘‘taken’’ by the the MMPA for training exercises in the physiology - effects on the auditory specified activities (i.e., takes by VACAPES Range Complex. Consultation system and effects on non-auditory harassment only, or takes by will be concluded prior to a system tissues. These are not harassment, injury, and/or death). This determination on the issuance of the independent pathways and both must estimate informs the analysis that NMFS final rule and an LOA. must perform to determine whether the be considered since the same sound NEPA could affect both auditory and non- activity will have a ‘‘negligible impact’’ auditory tissues. Note that the model on the species or stock. Level B The Navy is preparing an does not account for any animal (behavioral) harassment occurs at the Environmental Impact Statement (EIS) response; rather the animals are level of the individual(s) and does not for the proposed VACAPES Range considered stationary, accumulating assume any resulting population-level Complex training activities. A draft EIS energy until the threshold is tripped. consequences, though there are known was released for public comment from Estimating the take that will result avenues through which behavioral June 27 - August 11, 2008 and it is from the proposed activities entails the disturbance of individuals can result in available at http:// following four steps: propagation model population-level effects. A negligible www.vacapesrangecomplexeis.com/. estimates animals exposed to sources at impact finding is based on the lack of NMFS is a cooperating agency (as different levels; further modeling likely adverse effects on annual rates of defined by the Council on determines the number of exposures to recruitment or survival (i.e., population- Environmental Quality (40 CFR 1501.6)) levels indicated in the criteria above level effects). An estimate of the number in the preparation of the EIS. NMFS has (i.e., number of takes); post-modeling of Level B harassment takes, alone, is reviewed the Draft EIS and will be corrections refine estimates to make not enough information on which to working with the Navy on the Final EIS them more accurate; mitigation is taken base an impact determination. In (FEIS). into consideration. More information addition to considering estimates of the NMFS intends to adopt the Navy’s regarding the models used, the number of marine mammals that might FEIS, if adequate and appropriate, and assumptions used in the models, and be ‘‘taken’’ through behavioral we believe that the Navy’s FEIS will the process of estimating take is harassment, NMFS must consider other allow NMFS to meet its responsibilities available in Appendix J of the Navy’s factors, such as the likely nature of any under NEPA for the issuance of the 5– EIS for the VACAPES Range Complex. responses (their intensity, duration, year regulations and LOAs (as Modeling results from the analysis etc.), the context of any responses warranted) for training activities in the predict mortalities for 1 common (critical reproductive time or location, VACAPES Range Complex. If the Navy’s dolphin from use of explosive ordnance migration, etc.), or any of the other FEIS is not adequate, NMFS would in MISSILEX activities. These modeling variables mentioned in the first supplement the existing analysis and results do not take into account the paragraph (if known), as well as the documents to ensure that we comply mitigation measures (detailed in the number and nature of estimated Level A with NEPA prior to the issuance of the Proposed Mitigation Measure section takes, the number of estimated final rule or LOA. above) that lower the potential for mortalities, and effects on habitat. mortalities to occur given standard Based on the analysis contained Preliminary Determination range clearance procedures and the herein, NMFS has preliminarily likelihood that these species can be Based on the analysis contained determined that Navy training exercises readily detected (e.g., small animals herein of the likely effects of the utilizing underwater detonations will move quickly throughout the water specified activity on marine mammals have a negligible impact on the marine column and are often seen riding the and their habitat and dependent upon mammal species and stocks present in bow wave of large ships or in large the implementation of the mitigation the VACAPES Range Complex. groups). With the mitigation and measures, NMFS preliminarily finds monitoring measures implemented, Subsistence Harvest of Marine that the total taking from Navy training NMFS does not believe that there would Mammals exercises utilizing underwater be mortality of any marine mammal explosives in the VACAPES Range resulting from the proposed training NMFS has preliminarily determined Complex will have a negligible impact activities. Therefore, mortality of marine that the issuance of 5–year regulations on the affected marine mammal species mammals would not be authorized. and subsequent LOAs (as warranted) for or stocks. NMFS has proposed Navy training exercises in the regulations for these exercises that Effects on Marine Mammal Habitat VACAPES Range Complex would not prescribe the means of affecting the least Activities from Atlantic Fleet training have an unmitigable adverse impact on practicable adverse impact on marine activities in the VACAPES Range the availability of the affected species or mammals and their habitat and set forth Complex that may affect marine stocks for subsistence use, since there requirements pertaining to the mammal habitat include changes in are no such uses in the specified area. monitoring and reporting of that taking.

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Classification PART 218—REGULATIONS (D) Airgorne Mine Neutralization GOVERNING THE TAKING AND system (AMNS); This action does not contain a IMPORTING OF MARINE MAMMALS (E) 20 lb NEW charges; collection of information requirement (F) AGM–88 (HARM); for purposes of the Paperwork Subpart A—Taking Marine Mammals (G) 5’’ Naval Gunfire. Reduction Act Incidental to U.S. Navy Training in the (ii) Training Events: Virginia Capes Range Complex (A) Mine Neutralization (AMNS) up Pursuant to the procedures Sec. to 150 exercises over the course of 5 established to implement section 6 of 218.1 Specified activity and specified years (an average of 30 per year); Executive Order 12866, the Office of geographical region. (B) Mine Neutralization (20 lb NEW Management and Budget has 218.2 Permissible methods of taking. charges) - up to 120 exercises over the determined that this proposed rule is 218.3 Prohibitions. course of 5 years (an average of 24 per not significant. 218.4 Mitigation. year); 218.5 Requirements for monitoring and (C) Bombing Exercise (BOMBEX) (Air- Pursuant to the Regulatory Flexibility reporting. Act, the Chief Counsel for Regulation of 218.6 Applications for Letters of to-Surface) - up to 100 exercises over the the Department of Commerce has Authorization. course of 5 years (an average of 20 per certified to the Chief Counsel for 218.7 Letters of Authorization. year); Advocacy of the Small Business 218.8 Renewal of Letters of Authorization. (D) Missile Exercise (MISSILEX) (Air- Administration that this proposed rule, 218.9 Modifications to Letters of to-Surface; Hellfire missile) - up to 300 Authorization. exercises over the course of 5 years (an if adopted, would not have a significant average of 60 per year); economic impact on a substantial Subpart A—Taking Marine Mammals (E) Missile Exercise (MISSILEX) (Air- number of small entities. The Incidental to U.S. Navy Training in the to-Surface; Maverick, HE) - up to 100 Regulatory Flexibility Act requires Virginia Capes Range Complex exercises over the course of 5 years (an Federal agencies to prepare an analysis (VACAPES Range Complex) average of 20 per year); of a rule’s impact on small entities (F) HARM Missile Exercise whenever the agency is required to Authority: 16 U.S.C. 1361 et seq. (HARMEX) – up to 130 exercises over publish a notice of proposed the course of 5 years (an average of 26 § 218.1 Specified activity and specified rulemaking. However, a Federal agency geographical region. per year); may certify, pursuant to 5 U.S.C. section (G) FIREX with IMPASS - up to 110 605 (b), that the action will not have a (a) Regulations in this subpart apply exercises over the course of 5 years (an significant economic impact on a only to the U.S. Navy for the taking of average of 22 per year). marine mammals that occurs in the area substantial number of small entities. (2) [Reserved] outlined in paragraph (b) of this section The Navy is the entity that will be and that occur incidental to the § 218.2 Permissible methods of taking. affected by this rulemaking, not a small activities described in paragraph (c) of (a) Under Letters of Authorization governmental jurisdiction, small this section. issued pursuant to §§ 216.106 and organization or small business, as (b) The taking of marine mammals by 218.7, the Holder of the Letter of defined by the Regulatory Flexibility the Navy is only authorized if it occurs Authorization may incidentally, but not Act. Any requirements imposed by a within the VACAPES OPAREA, which intentionally, take marine mammals Letter of Authorization issued pursuant is located in the coastal and offshore within the area described in § 218.1 (b), to these regulations, and any monitoring waters of the western North Atlantic provided the activity is in compliance or reporting requirements imposed by Ocean adjacent to Delaware, Maryland, with all terms, conditions, and these regulations, will be applicable Virginia, and North Carolina. The requirements of this subpart and the only to the Navy. Because this action, if northernmost boundary of the OPAREA appropriate Letter of Authorization. adopted, would directly affect the Navy is located 37 nautical miles (nm) off the (b) The activities identified in § 218.1 and not a small entity, NMFS concludes entrance to Delaware Bay at latitude 38° (c) must be conducted in a manner that the action would not result in a 45’ N, the farthest point of the eastern minimizes, to the greatest extent significant economic impact on a boundary is 184 nm east of Chesapeake practicable, any adverse impacts on substantial number of small entities. Bay at longitude 72° 41’ W, and the marine mammals and their habitat. southernmost point is 105 nm southeast (c) The incidental take of marine List of Subjects in 50 CFR Part 216 of Cape Hatteras, North Carolina, at mammals under the activities identified ° in § 218.1 (c) is limited to the following Exports, Fish, Imports, Incidental latitude of 34 19’ N. The western boundary of the OPAREA lies 3 nm species, by the indicated method of take take, Indians, Labeling, Marine the indicated number of times: mammals, Navy, Penalties, Reporting from the shoreline at the boundary separating state and Federal waters. (1) Level B Harassment: and recordkeeping requirements, (c) The taking of marine mammals by (i) Mysticetes: Seafood, Sonar, Transportation. (A) Humpback whale (Megaptera the Navy is only authorized if it occurs novaeangliae) - 2; Dated: December 5, 2008. incidental to the following activities (B) Fin whale (Balaenoptera physalus) within the designated amounts of use: Samuel D. Rauch III, - 2. Deputy Assistant Administrator for (1) The detonation of the underwater (ii) Odontocetes: Regulatory Programs, National Marine explosives indicated in this (c)(1)(i) (A) Sperm whale (Physeter Fisheries Service. conducted as part of the training macrocephalus) - 2; exercises indicated in this (c)(1)(ii): For reasons set forth in the preamble, (B) Pygmy or dwarf sperm whales (i) Underwater Explosives: 50 CFR Chapter II is proposed to be (Kogia sp.) - 3; (A) AGM–114 (Hellfire missile); amended by adding part 218 to read as (C) Rough-toothed dolphin (Steno (B) AGM–65 E/F (Maverick missile); follows: bredanensis) - 1; (C) MK–83/GBU–32 (1,000 lb High (D) Bottlenose dolphin (Tursiops 2. Part 218 is added to read as follows: Explosive bomb); truncatus) - 29;

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(E) Pantropical spotted dolphin supervision of a qualified, experienced binoculars; surfaced submarines will (Stenella attenuata) - 70; watchstander. Following successful have at least one lookout with (F) Striped dolphin (S. coeruleoalba)- completion of this supervised training binoculars. Lookouts already posted for 68; period, lookouts will complete the safety of navigation and man-overboard (F) Clymene dolphin (S. clymene) - Personal Qualification Standard precautions may be used to fill this 33; Program, certifying that they have requirement. As part of their regular (G) Atlantic spotted dolphin (S. demonstrated the necessary skills (such duties, lookouts will watch for and frontalis) - 43; as detection and reporting of partially report to the OOD the presence of (H) Common dolphin (Delphinus submerged objects). marine mammals and sea turtles. delphis) - 2,193; (D) Lookouts will be trained in the (D) On surface vessels equipped with (I) Risso’s dolphin (Grampus griseus) most effective means to ensure quick a mid-frequency active sonar, pedestal - 16 and effective communication within the mounted ‘‘Big Eye’’ (20x110) binoculars (J) Pilot whales (Globicephala sp.) - command structure to facilitate will be properly installed and in good 10. implementation of protective measures working order to assist in the detection (2) Level A Harassment (injury): if marine species are spotted. of marine mammals and sea turtles in (i) Atlantic spotted dolphin - 1; (E) Surface lookouts would scan the the vicinity of the vessel. (ii) Common dolphin - 20; water from the ship to the horizon and (E) Personnel on lookout will employ (iii) Pantropical spotted dolphin - 1; be responsible for all contacts in their visual search procedures employing a (iv) Striped dolphin - 3. sector. In searching the assigned sector, scanning method in accordance with the the lookout would always start at the § 218.3 Prohibitions. Lookout Training Handbook forward part of the sector and search aft (NAVEDTRA 12968–D). Notwithstanding takings (toward the back). To search and scan, (F) After sunset and prior to sunrise, contemplated in § 218.2 and authorized the lookout would hold the binoculars lookouts will employ Night Lookouts by a Letter of Authorization issued steady so the horizon is in the top third Techniques in accordance with the under § 216.106 of this chapter and of the field of vision and direct the eyes Lookout Training Handbook § 218.7. No person in connection with just below the horizon. The lookout (NAVEDTRA 12968–D). the activities described in § 218.1 may: would scan for approximately five (G) While in transit, naval vessels will (a) Take any marine mammal not seconds in as many small steps as be alert at all times, use extreme specified in § 218.2 (c); possible across the field seen through caution, and proceed at a ‘‘safe speed’’ (b) Take any marine mammal the binoculars. They would search the so that the vessel can take proper and specified in § 218.2 (c) other than by entire sector in approximately five- effective action to avoid a collision with incidental take as specified in degree steps, pausing between steps for any marine animal and can be stopped § 218.2(c)(1) and (2); approximately five seconds to scan the within a distance appropriate to the (c) Take a marine mammal specified field of view. At the end of the sector prevailing circumstances and in § 218.2 (c) if such taking results in search, the glasses would be lowered to conditions. more than a negligible impact on the allow the eyes to rest for a few seconds, species or stocks of such marine and then the lookout would search back (H) When whales have been sighted in mammal; or across the sector with the naked eye. the area, Navy vessels will increase (d) Violate, or fail to comply with, the (F) At night, lookouts would not vigilance and implement measures to terms, conditions, and requirements of sweep the horizon with their eyes, avoid collisions with marine mammals this Subpart or a Letter of Authorization because eyes do not see well when they and avoid activities that might result in issued under § 216.106 of this chapter are moving. Lookouts would scan the close interaction of naval assets and and § 218.7. horizon in a series of movements that marine mammals. Such measures shall would allow their eyes to come to include changing speed and/or direction § 218.4 Mitigation. periodic rests as they scan the sector. and would be dictated by environmental (a) When conducting training When visually searching at night, they and other conditions (e.g., safety or activities identified in § 218.1(c), the would look a little to one side and out weather). mitigation measures contained in the of the corners of their eyes, paying (I) Naval vessels will maneuver to Letter of Authorization issued under attention to the things on the outer keep at least 500 yds (460 m) away from § 216.106 of this chapter and § 218.7 edges of their field of vision. Lookouts any observed whale and avoid must be implemented. These mitigation will also have night vision devices approaching whales head-on. This measures include (but are not limited available for use. requirement does not apply if a vessel’s to): (ii) Operating Procedures & Collision safety is threatened, such as when (1) General Maritime Measures: Avoidance: change of course will create an (i) Personnel Training – Lookouts (A) Prior to major exercises, a Letter imminent and serious threat to a person, (A) All bridge personnel, of Instruction, Mitigation Measures vessel, or aircraft, and to the extent Commanding Officers, Executive Message or Environmental Annex to the vessels are restricted in their ability to Officers, officers standing watch on the Operational Order will be issued to maneuver. Restricted maneuverability bridge, maritime patrol aircraft aircrews, further disseminate the personnel includes, but is not limited to, situations and Mine Warfare (MIW) helicopter training requirement and general marine when vessels are engaged in dredging, crews will complete Marine Species species mitigation measures. submerged operations, launching and Awareness Training (MSAT). (B) Commanding Officers will make recovering aircraft or landing craft, (B) Navy lookouts will undertake use of marine species detection cues minesweeping operations, extensive training to qualify as a and information to limit interaction replenishment while underway and watchstander in accordance with the with marine species to the maximum towing operations that severely restrict Lookout Training Handbook extent possible consistent with safety of a vessel’s ability to deviate course. (NAVEDTRA 12968–D). the ship. Vessels will take reasonable steps to (C) Lookout training will include on- (C) While underway, surface vessels alert other vessels in the vicinity of the the-job instruction under the will have at least two lookouts with whale.

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(J) Where feasible and consistent with safe speed consistent with mission and m) altitude or lower, if safe to do so, and mission and safety, vessels will avoid safety within a 20 nm (37 km) arc of the at the slowest safe speed. closing to within 200–yd (183 m) of specified reference points listed on (B) A buffer zone of 5,100–yd (4,663 marine mammals other than whales Table 14 of this document. m) radius shall be established around (whales addressed above). (B) During the indicated months, the intended target zone. The exercises (K) Floating weeds, algal mats, Navy vessels would practice increased shall be conducted only if the buffer Sargassum rafts, clusters of seabirds, vigilance with respect to avoidance of zone is clear of sighted marine and jellyfish are good indicators of sea vessel-whale interactions along the mid- mammals. turtles and marine mammals. Therefore, Atlantic coast, including transits to and (C) At-sea BOMBEXs using live increased vigilance in watching for sea from any mid-Atlantic ports not ordnance shall occur during daylight turtles and marine mammals will be specifically identified above. hours only. taken where these are present. (4) Proposed Mitigation Measures for (iii) Air-to-Surface Missile Exercises (L) Navy aircraft participating in Specific At-sea Training Events: (Explosive); exercises at sea will conduct and (i) Firing Exercise (FIREX) Using the (A) Aircraft shall initially survey the maintain, when operationally feasible Integrated Maritime Portable Acoustic intended ordnance impact area for and safe, surveillance for marine species Scoring System (IMPASS) (5–in. marine mammals. of concern as long as it does not violate Explosive Rounds); (B) During the actual firing of the safety constraints or interfere with the (A) FIREX using IMPASS would only weapon, the aircraft involved must be accomplishment of primary operational be conducted in the four designated able to observe the intended ordnance duties. Marine mammal detections will areas in the VACAPES Range Complex. impact area to ensure the area is free of be immediately reported to assigned (B) Pre-exercise monitoring of the range transients. (C) Visual inspection of the target area Aircraft Control Unit for further target area will be conducted with ‘‘Big shall be made by flying at 1,500 ft (457 dissemination to ships in the vicinity of Eyes’’ prior to the event, during m) altitude or lower, if safe to do so, and the marine species as appropriate where deployment of the IMPASS sonobuoy at slowest safe speed. it is reasonable to conclude that the array, and during return to the firing position. (D) Explosive ordnance shall not be course of the ship will likely result in targeted to impact within 1,800 yd a closing of the distance to the detected Ships will maintain a lookout dedicated to visually searching for (1,646 m) of sighted marine mammals. marine mammal. (iv) Mine Neutralization Training marine mammals 180o along the ship (M) All vessels will maintain logs and Involving Underwater Detonations (up track line and 360o at each buoy drop- records documenting training to 20–lb charges); operations should they be required for off location. (A) This activity shall only occur in event reconstruction purposes. Logs and (C) ‘‘Big Eyes’’ on the ship shall be W–50 of the VACAPES Range Complex. records will be kept for a period of 30 used to monitor a 640 yd (585 m) buffer (B) Observers shall survey the Zone of days following completion of a major zone around the target area for marine Influence (ZOI), a 656 yd (600 m) radius training exercise. mammals during naval-gunfire events. from detonation location, for marine (2) Coordination and Reporting (D) Ships shall not fire on the target mammals from all participating vessels Requirements: if any marine mammals are detected during the entire operation. A survey of (i) The Navy shall coordinate with the within or approaching the 640 yd (585 the ZOI (minimum of 3 parallel local NMFS Stranding Coordinator for m) until the area is cleared. If marine tracklines 219 yd [200 m] apart) using any unusual marine mammal behavior mammals are present, operations shall support craft shall be conducted at the and any stranding, beached live/dead, be suspended. Visual observation shall detonation location 30 minutes prior or floating marine mammals that may occur for approximately 45 minutes, or through 30 minutes post detonation. occur at any time during or within 24 until the animal has been observed to Aerial survey support shall be utilized hours after completion of training have cleared the area and is heading whenever assets are available. activities. away from the buffer zone. (C) Detonation operations shall be (ii) The Navy shall follow internal (E) Post-exercise monitoring of the conducted during daylight hours. chain of command reporting procedures entire effect range shall take place with (D) If a marine mammal is sighted as promulgated through Navy ‘‘Big Eyes’’ and the naked eye during the within the ZOI, the animal shall be instructions and orders. retrieval of the IMPASS sonobuoy array allowed to leave of its own volition. The (3) Mitigation Measures Applicable following each firing exercise. Navy shall suspend detonation exercises Vessel Transit in the Mid-Atlantic (F) FIREX with IMPASS shall take and ensure the area is clear for a full 30 during North Atlantic Right Whale place during daylight hours only. minutes prior to detonation. Migration: (G) FIREX with IMPASS shall only be (E) Divers placing the charges on (i) The mitigation measures apply to used in Beaufort Sea State three (3) or mines and dive support vessel all Navy vessel transits, including those less. personnel shall survey the area for vessels that would transit to and from (H) The visibility must be such that marine mammals and shall report any East Coast ports and OPAREAs. the fall of shot is visible from the firing sightings to the surface observers. These (ii) Seasonal migration of right whales ship during the exercise. animals shall be allowed to leave of is described by NMFS as occurring from (I) No firing shall occur if marine their own volition and the ZOI shall be October 15th through April 30th, when mammals are detected within 70 yd (64 clear for 30 minutes prior to detonation. right whales migrate between feeding m) of the vessel. (F) No detonations shall take place grounds farther north and calving (ii) Air-to-Surface At-Sea Bombing within 3.2 nm (6 km) of an estuarine grounds farther south. Exercises (250–lbs to 2,000–lbs inlet (Chesapeake Bay Inlets). (A) Where vessel transits during the explosive bombs); (G) No detonations shall take place right whale migration season along (A) Aircraft shall visually survey the within 1.6 nm (3 km) of shoreline. certain identified ports including the target and buffer zone for marine (H) No detonations shall take place Hampton Roads entrance to the mammals prior to and during the within 1,000 ft (305 m) of any artificial Chesapeake Bay, Navy vessels shall use exercise. The survey of the impact area reef, shipwreck, or live hard-bottom extreme caution and operate at a slow, will be made by flying at 1,500 ft (457 community.

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(I) Personnel shall record any (B) Location and relative distance shall submit a report annually on protected species observations during from the detonation site; September 1 describing the the exercise as well as measures taken (C) The behavior of marine implementation and results (through if species are detected within the ZOI. mammal(s) including standard June 1 of the same year) of the (v) Adaptive management; environmental and oceanographic monitoring required in paragraph c of (A) The final regulations governing parameters; this section. the take of marine mammals incidental (D) Date, time and visual conditions (f) VACAPES Range Complex to Navy training exercises in VACAPES associated with each observation; Comprehensive Report The Navy shall shall contain an adaptive management (E) Direction of travel relative to the submit to NMFS a draft report that component. detonation site; and analyzes and summarizes all of the (B) The use of adaptive management (F) duration of the observation. multi-year marine mammal information (v) An aerial survey team shall shall give NMFS the ability to consider gathered during explosive exercises for conduct pre and post aerial surveys, new data from different sources to which individual reports are required in taking local oceanographic currents into determine (in coordination with the § 218.5 (d through e). This report will be account, of the exercise area. Navy), on an annual basis, if new or submitted at the end of the fourth year modified mitigation or monitoring (2) Passive acoustic monitoring: (i) Any time a towed hydrophone of the rule (November 2012), covering measures are appropriate for subsequent array is employed during shipboard activities that have occurred through annual LOAs. surveys the towed array shall be June 1, 2012. § 218.5 Requirements for monitoring and deployed during daylight hours for each (g) The Navy shall respond to NMFS reporting. of the days the ship is at sea. comments on the draft comprehensive report if submitted within 3 months of (a) The Holder of the Letter of (ii) The towed hydrophone array shall receipt. The report will be considered Authorization issued pursuant to be used to supplement the ship-based final after the Navy has addressed § 216.106 of this chapter and § 218.7 for systematic line-transect surveys NMFS’ comments, or three months after activities described in § 218.1(c) is (particularly for species such as beaked the submittal of the draft if NMFS does required to cooperate with the NMFS, whales that are rarely seen). not comment by then. and any other Federal, state or local (3) Marine mammal observers on agency monitoring the impacts of the Navy platforms: (i) Marine mammal observers (MMOs) § 218.6 Applications for Letters of activity on marine mammals. Authorization. shall be placed on a Navy platform (b) The Holder of the Authorization during one of the exercises being To incidentally take marine mammals must notify NMFS immediately (or as monitored per year. pursuant to these regulations, the U.S. soon as clearance procedures allow) if (ii) The MMO must possess expertise citizen (as defined by § 216.103) the specified activity identified in in species identification of regional conducting the activity identified in § 218.1(c) is thought to have resulted in marine mammal species and experience § 218.1(c) (the U.S. Navy) must apply for the mortality or injury of any marine collecting behavioral data. and obtain either an initial Letter of mammals, or in any take of marine (iii) MMOs shall not be placed aboard Authorization in accordance with mammals not identified in § 218.2 (c). Navy platforms for every Navy training § 218.7 or a renewal under § 218.8. (c) The Holder of the Letter of event or major exercise, but during § 218.7 Letters of Authorization. Authorization must conduct all specifically identified opportunities monitoring and/or research required deemed appropriate for data collection (a) A Letter of Authorization, unless under the Letter of Authorization.(d) efforts. The events selected for MMO suspended or revoked, will be valid for The monitoring methods proposed for participation shall take into account a period of time not to exceed the period use during training events in VACAPES safety, logistics, and operational of validity of this subpart, but must be Range Complex include a combination concerns. renewed annually subject to annual of individual elements designed to (iv) MMOs shall observe from the renewal conditions in § 218.8. allow a comprehensive assessment same height above water as the (b) Each Letter of Authorization will include: lookouts. set forth: (1) Vessel and aerial surveys: (v) The MMOs shall not be part of the (1) Permissible methods of incidental (i) The Holder of this Authorization Navy’s formal reporting chain of taking; shall visually survey a minimum of 2 command during their data collection (2) Means of effecting the least explosive events per year, one of which efforts; Navy lookouts shall continue to practicable adverse impact on the shall be a multiple detonation event. serve as the primary reporting means species, its habitat, and on the (ii) For specified training events, within the Navy chain of command for availability of the species for aerial or vessel surveys shall be used 1– marine mammal sightings. The only subsistence uses (i.e., mitigation); and 2 days prior to, during (if reasonably exception is that if an animal is (3) Requirements for mitigation, safe), and 1–5 days post detonation. observed within the shutdown zone that monitoring and reporting.(c) Issuance (iii) Surveys shall include any has not been observed by the lookout, and renewal of the Letter of specified exclusion zone around a the MMO shall inform the lookout of the Authorization will be based on a particular detonation point plus 2000 sighting for the lookout to take the determination that the total number of yards beyond the exclusion zone. For appropriate action through the chain of marine mammals taken by the activity vessel based surveys a passive acoustic command. as a whole will have no more than a system (hydrophone or towed array) (vi) The MMOs shall collect species negligible impact on the affected species could be used to determine if marine identification, behavior, direction of or stock of marine mammal(s). mammals are in the area before and/or travel relative to the Navy platform, and after a detonation event. distance first observed. All MMO § 218.8 Renewal of Letters of (iv) When conducting a particular sightings shall be conducted according Authorization. survey, the survey team shall collect: to a standard operating procedure. (a) A Letter of Authorization issued (A) Species identification and group (e) Report from Monitoring required under § 216.106 of this chapter and size; in paragraph d of this section The Navy § 218.7 for the activity identified in

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§ 218.1(c) will be renewed annually to § 216.106 of this chapter and § 218.7 • Electronic Submissions: Submit all upon: may be substantively modified without electronic public comments via the (1) Notification to NMFS that the prior notification and an opportunity for FederaleRulemaking Portal website at activity described in the application public comment. Notification will be http://www.regulations.gov. submitted under § 218.6 will be published in the Federal Register • Mail: P. O. Box 21668, Juneau, AK undertaken and that there will not be a within 30 days subsequent to the action. 99802. substantial modification to the [FR Doc. E8–29498 Filed 12–11–08; 8:45 am] • Fax: (907) 586–7557. described work, mitigation or BILLING CODE 3510–22–S • Hand delivery to the Federal monitoring undertaken during the Building: 709 West 9th Street, Room upcoming 12 months; 420A, Juneau, AK. (2) Timely receipt of the monitoring DEPARTMENT OF COMMERCE All comments received are a part of reports required under § 218.5(b); and the public record and will generally be (3) A determination by NMFS that the National Oceanic and Atmospheric posted to http://www.regulations.gov mitigation, monitoring and reporting Administration without change. All Personal Identifying measures required under § 218.4 and the Information (e.g., name, address) Letter of Authorization issued under 50 CFR Part 679 voluntarily submitted by the commenter § 216.106 of this chapter and § 218.7, RIN 0648–AX14 may be publicly accessible. Do not were undertaken and will be undertaken submit Confidential Business during the upcoming annual period of Fisheries of the Exclusive Economic Information or otherwise sensitive or validity of a renewed Letter of Zone Off Alaska; Bering Sea and protected information. Authorization. Aleutian Islands Management Area and NMFS will accept anonymous (b) If a request for a renewal of a Gulf of Alaska License Limitation comments (enter ‘‘N/A’’ in the required Letter of Authorization issued under Program § 216.106 of this chapter and § 218.8 fields if you wish to remain indicates that a substantial modification AGENCY: National Marine Fisheries anonymous). Attachments to electronic to the described work, mitigation or Service (NMFS), National Oceanic and comments will be accepted in Microsoft monitoring undertaken during the Atmospheric Administration (NOAA), Word, Excel, WordPerfect, or Adobe upcoming season will occur, NMFS will Commerce. portable document file (pdf) formats provide the public a period of 30 days ACTION: Notice of availability of fishery only. for review and comment on the request. management plan amendment; request Copies of Amendments 92 and 82, the Review and comment on renewals of for comments. Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), Letters of Authorization are restricted SUMMARY: Amendment 92 to the Fishery to: and the Environmental Assessment (EA) Management Plans for Groundfish of the prepared for this action may be obtained (1) New cited information and data Bering Sea/Aleutian Islands indicating that the determinations made from the NMFS Alaska Region at the Management Area and Amendment 82 address above or from the Alaska Region in this document are in need of to the Fishery Management Plan for reconsideration, and website at http://www.fakr.noaa.gov/ Groundfish of the Gulf of Alaska (FMPs) sustainablefisheries.htm. (2) Proposed changes to the mitigation would remove trawl gear endorsements and monitoring requirements contained on licenses issued under the license FOR FURTHER INFORMATION CONTACT: in these regulations or in the current limitation program in specific Glenn Merrill, 907–586–7228. Letter of Authorization.(c) A notice of management areas if those licenses have SUPPLEMENTARY INFORMATION: The issuance or denial of a renewal of a not been used on vessels that meet Magnuson–Stevens Fishery Letter of Authorization will be minimum recent landing requirements Conservation and Management Act published in the Federal Register. using trawl gear. This action would requires that each regional fishery § 218.9 Modifications to Letters of provide exemptions to this requirement management council submit any fishery Authorization. for licenses that are used in trawl management plan amendment it (a) Except as provided in paragraph fisheries subject to quota–based prepares to NMFS for review and (b) of this section, no substantive management. This action would issue approval, disapproval, or partial modification (including withdrawal or new area endorsements for trawl catcher approval by the Secretary of Commerce suspension) to the Letter of vessels in the Aleutian Islands if (Secretary). The Magnuson–Stevens Act Authorization by NMFS, issued minimum recent landing requirements also requires that NMFS, upon receiving pursuant to § 216.106 of this chapter in the Aleutian Islands were met. This a fishery management plan amendment, and § 218.7 and subject to the action is intended to promote the goals immediately publish a notice in the provisions of this subpart shall be made and objectives of the Magnuson–Stevens Federal Register announcing that the until after notification and an Fishery Conservation and Management amendment is available for public opportunity for public comment has Act, the FMP, and other applicable review and comment. been provided. For purposes of this laws. The license limitation program (LLP) paragraph, a renewal of a Letter of DATES: Comments on the amendments for groundfish fisheries was Authorization under § 218.8, without must be submitted on or before February recommended by the North Pacific modification (except for the period of 10, 2009. Fishery Management Council (Council) validity), is not considered a substantive ADDRESSES: Send comments to Sue in June 1995 as Amendments 39 and 41 modification. Salveson, Assistant Regional to the Bering Sea/Aleutian Islands (b) If the Assistant Administrator Administrator, Sustainable Fisheries Management Area (BSAI) and the Gulf determines that an emergency exists Division, Alaska Region, NMFS, Attn: of Alaska (GOA) FMPs, respectively. that poses a significant risk to the well- Ellen Sebastian. You may submit NMFS published a final rule to being of the species or stocks of marine comments, identified by ‘‘RIN 0648– implement the LLP on October 1, 1998 mammals specified in § 218.2(c), a AX14,’’ by any one of the following (63 FR 52642), and the LLP was Letter of Authorization issued pursuant methods: implemented on January 1, 2000.

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The LLP for groundfish established This review was initiated primarily at Rockfish Program LAPP. The Council specific criteria that must be met to the request of active trawl fishery determined that exemptions for LAPPs allow a person to use a vessel to participants who were concerned that are appropriate because the participants continue to be eligible to fish in latent trawl–endorsed LLP licenses in these three LAPPs have already met federally managed groundfish fisheries. could become active in the future and participation requirements for these Under the LLP, NMFS issued LLP adversely affect their fishing operations. specific management areas to participate licenses. These LLP licenses were During the process of this review, the in these programs. issued to a vessel owner based on the Council also received input from the Second, Amendments 92 and 82 catch history of their vessels in Federal public requesting modification to the would issue new trawl AI LLP groundfish fisheries during the mid LLP to meet unique conditions in the AI endorsements for catcher vessel 1990’s. LLP licenses: (1) endorse fishing area that limit the ability of catcher operations for use in the AI. Under this activities in specific regulatory areas in vessels and specific AI area proposed action, NMFS would issue AI the BSAI and GOA; (2) restrict the communities to harvest and process trawl endorsements to (1) non–AFA length of the vessel on which the LLP federally managed groundfish. In April catcher vessels less than 60 feet length license may be used; (3) designate the 2008, after more than a year of review, overall (LOA) if those vessels have made fishing gear that may be used on the development of an analysis, and at least 500 metric tons (mt) of landings vessel, trawl or non–trawl gear extensive public comment, the Council of Pacific cod in State of Alaska waters designations; (4) designate the type of recommended modifications to the LLP adjacent to the AI during the Federal vessel operation permitted, LLP licenses to revise eligibility criteria for trawl Pacific cod season during 2000 through designate whether the vessel to which endorsements on LLP licenses. 2006; or (2) non–AFA catcher vessels the LLP is assigned may operate as a Amendments 92 and 82 would greater than 60 feet LOA if those vessels catcher vessel or as a catcher/processor; implement two different actions. have made at least one landing in State of Alaska waters during the Federal and (5) are issued so that the First, Amendments 92 and 82 would groundfish season in the AI and have endorsements for specific regulatory remove latent trawl endorsements on made at least 1,000 mt of landings in the areas, gear designations, or vessel LLP licenses. A trawl endorsement in a BSAI Pacific cod fishery during 2000 operational types are non–severable specific regulatory area would be from the LLP license, once issued, the through 2006. The Council determined removed from an LLP license if that LLP components of the LLP license cannot that these provisions would provide license has not been assigned to a vessel be transferred independently. By additional harvest opportunities to that has made a minimum of two creating LLP licenses with these owners of non–AFA trawl catcher landings using trawl gear in a specific characteristics, the Council and NMFS vessels that have been used in State of regulatory area from 2000 through 2006. limited the ability of a person to assign Alaska waters in the Aleutian Islands in Two exemptions to the landing an LLP license that was derived from recent years, but who do not hold an requirements would apply. One would the historic fishing activity of a vessel LLP license with an AI area allow a person to maintain their trawl to be transferred and used on another endorsement These endorsements are endorsement in the CG and the WG vessel in a manner that could expand also likely to facilitate shore–based fishing capacity. even if that person did not meet the processing operations in the Aleutian In 2000, NMFS issued over 300 LLP landing requirement in one of the Islands, primarily in the community of licenses endorsed for trawl gear. A regulatory areas, provided that LLP Adak, Alaska by providing greater vessel owner received an LLP license license had been used on a vessel that harvesting opportunities to the catcher endorsed for a specific regulatory area made at least 20 landings using trawl vessel fleet currently delivering to Adak. in the BSAI, either the Bering Sea gear in one regulatory area in either the In addition, the Council recommended subarea (BS) or Aleutian Islands subarea CG or WG from 2005 through 2007. The that the new AI area endorsements that (AI); or a specific regulatory area in the Council determined that an exemption would be issued based on the landings GOA, Southeast Outside District (SEO), to the landing requirement is warranted of vessels less than 60 feet LOA should Central Gulf of Alaska (CG), or Western for these two areas in the GOA in order be severable and transferable from the Gulf of Alaska (WG) if that vessel met to qualify license holders that have overall license. No other area specific landing requirements in that established records of recent endorsement in the existing LLP is specific regulatory area. The minimum participation in GOA trawl fisheries. allowed to be transferred separately landing requirements differed This provision would only apply to LLP from the LLP license to which it is depending on the regulatory area, size of licenses that are designated for catcher attached. The proposed action would the vessel, and the operational type of vessels. The second exemption would create a new type of independently the vessel. Soon after LLP licenses were allow retention of a trawl endorsement transferrable area endorsement. issued it became apparent that a in a specific regulatory area if that However, the Council clarified that substantial number of trawl–endorsed regulatory area endorsement is required these AI area endorsements must be LLP licenses were not being used. to continue participation in one of three reassigned, or reattached, to an LLP Changes in the economic viability of Limited Access Privilege Programs license in order to be used. The Council some fishing operations, changes in (LAPPs) currently in place: the recommended a transferrable AI area fishery management regulations, and American Fisheries Act (AFA); the endorsement for vessels less than 60 feet consolidation of fishery operations are Amendment 80 Program; and the CG LOA to ensure that these endorsements likely factors affecting the number of Rockfish Program. Under this would be used on vessels in the LLP licenses that were actively assigned exemption, NMFS would not remove Aleutian Islands. to vessels. LLP licenses that are valid trawl endorsements with a BS or AI Public comments are being solicited but have not been used recently on a endorsement if that LLP license is on proposed Amendments 92 and 82 vessel are commonly known as latent assigned for use in the AFA or through the end of the comment period LLP licenses. Amendment 80 LAPP, and NMFS (see DATES). NMFS intends to publish a Beginning in early 2007, the Council would not remove trawl endorsements proposed rule in the Federal Register began reviewing the potential removal in with a CG endorsement if that LLP for public comment that would of latent trawl–endorsed LLP licenses. license is assigned for use in the CG implement Amendments 92 and 82,

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following NMFS( evaluation under the the number of violations for overages, exclusive economic zone of the Bering Magnuson–Stevens Act procedures. reduce enforcement costs, and allow Sea and Aleutian Islands (BSAI) are Public comments on the proposed rule more complete harvest of allocations. managed under the Fishery must be received by the close of the This action is intended to promote the Management Plan for Bering Sea/ comment period on Amendments 92 goals and objectives of the Magnuson– Aleutian Islands King and Tanner Crabs and 82 to be considered in the approval/ Stevens Fishery Conservation and (FMP). The FMP was prepared by the disapproval decision on Amendments Management Act, the FMP, and other North Pacific Fishery Management 92 and 82. All comments received by applicable law. Council (Council) under the Magnuson– the end of the comment period on DATES: Comments must be received no Stevens Fishery Conservation and Amendments 92/82, whether later than January 26, 2009. Management Act (Magnuson–Stevens specifically directed to the FMP ADDRESSES: Send comments to Sue Act). Amendments 18 and 19 to the amendments or the proposed rule, will Salveson, Assistant Regional FMP implemented the BSAI Crab be considered in the approval/ Administrator, Sustainable Fisheries Rationalization Program (CR Program). disapproval decision on Amendments Division, Alaska Region, NMFS, Attn: Regulations implementing Amendments 92 and 82. Comments received after the Ellen Sebastian. You may submit 18 and 19 were published on March 2, end of the public comment period for comments, identified by ‘‘RIN 0648– 2005 (70 FR 10174), and are located at Amendments 92 and 82, even if AW97,’’ by any one of the following 50 CFR part 680. received within the comment period for methods: Background the proposed rule, will not be • Electronic Submissions: Submit all Under the CR Program, NMFS issued considered in the approval/disapproval electronic public comments via the quota share (QS) to persons based on decision on the amendment. To be Federal eRulemaking Portal website at their qualifying harvest histories in the considered, comments must be http://www.regulations.gov. BSAI crab fisheries during a specific received(not just postmarked or • Mail: P.O. Box 21668, Juneau, AK time period. Each year, the QS issued to otherwise transmitted(by the close of 99802. business on the last day of the comment • Fax: 907–586–7557. a person yields an amount of individual period. • Hand delivery to the Federal fishing quota (IFQ), which is a permit th that provides an exclusive harvesting Authority: 16 U.S.C. 1801 et seq. Building: 709 West 9 Street, Room 420A, Juneau, AK. privilege for a specific amount of raw Dated: December 8, 2008. All comments received are a part of crab pounds, in a specific crab fishery, Emily H. Menashes, the public record and will generally be in a given season. The size of each Acting Director, Office of Sustainable posted to http://www.regulations.gov annual IFQ allocation is based on the Fisheries, National Marine Fisheries Service. without change. All personal identifying amount of QS held by a person in [FR Doc. E8–29497 Filed 12–11–08; 8:45 am] information (e.g., name, address) relation to the total QS pool in a crab BILLING CODE 3510–22–S voluntarily submitted by the commenter fishery. For example, a person holding may be publicly accessible. Do not QS equaling 1 percent of the QS pool in submit confidential business a crab fishery would receive IFQ to DEPARTMENT OF COMMERCE information or otherwise sensitive or harvest one percent of the annual total protected information. allowable catch (TAC) in that crab National Oceanic and Atmospheric fishery. Catcher processor license Administration NMFS will accept anonymous comments (enter N/A in the required holders were allocated catcher processor vessel owner (CPO) QS for their history 50 CFR Part 680 fields, if you wish to remain anonymous). Attachments to electronic as catcher processors; and catcher vessel [Docket No. 080630808–8814–01] comments will be accepted in Microsoft license holders were issued catcher vessel owner (CVO) QS based on their RIN 0648–AW97 Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats catcher vessel history. Under the CR Program, 97 percent of only. Fisheries of the Exclusive Economic the initial allocation of QS was issued Zone Off Alaska; Bering Sea and This proposed action was categorically excluded from the need to to vessel owners as CPO or CVO QS. Aleutian Islands Crab Rationalization The remaining 3 percent was issued to prepare an environmental assessment or Program vessel captains and crew as ‘‘C shares’’ environmental impact statement under based on their harvest histories as crew AGENCY: National Marine Fisheries the National Environmental Policy Act. members onboard crab fishing vessels. Service (NMFS), National Oceanic and Copies of Amendment 28, the Of the CVO IFQ, 90 percent is issued as Atmospheric Administration (NOAA), categorical exclusion memorandum, and ‘‘A shares,’’ or ‘‘Class A IFQ,’’ which, in Commerce. the Regulatory Impact Review/Initial most fisheries, are subject to regional ACTION: Proposed rule; request for Regulatory Flexibility Analysis (RIR/ landing requirements and must be comments. IRFA) prepared for this action, as well delivered to a processor holding unused as the Environmental Impact Statement SUMMARY: NMFS proposes regulations individual processor quota (IPQ). This (EIS) prepared for the Crab implementing Amendment 28 to the regional landing requirement is Rationalization Program may be Fishery Management Plan for Bering commonly referred to as obtained from the NMFS Alaska Region Sea/Aleutian Islands King and Tanner ‘‘regionalization.’’ The remaining 10 at the address above or from the Alaska Crabs (FMP). This proposed regulation percent of the annual vessel owner IFQ Region website at http:// would amend the Bering Sea/Aleutian is issued as ‘‘B shares,’’ or ‘‘Class B alaskafisheries.noaa.gov. Islands Crab Rationalization Program to IFQ,’’ which may be delivered to any allow post–delivery transfers of all types FOR FURTHER INFORMATION CONTACT: processor and are not subject to of individual fishing quota and Glenn Merrill, 907–586–7228, or Julie regionalization. C shares also are not individual processing quota to cover Scheurer, 907–586–7356. subject to regionalization. overages. This action is necessary to SUPPLEMENTARY INFORMATION: The king Processor quota shares (PQS) are long improve flexibility of the fleet, reduce and Tanner crab fisheries in the term shares issued to processors. These

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PQS yield annual IPQ, which represent a specific amount of IPQ, that IPQ costs, and allow more complete harvest a privilege to receive a certain amount cannot be matched to another harvester of allocations. Post–delivery transfers of crab harvested with Class A IFQ. IPQ without first removing the match from would also increase flexibility to the are issued for 90 percent of the CVO the harvester who committed delivery of fleet and allow more efficient use of TAC, creating a one-to-one Class A IFQ crab to the IPQ held by that resources. As an example, this provision correspondence between Class A IFQ processor. Removing a match of Class A could allow harvesters to make landings and IPQ. IFQ and IPQ requires the consent of the and settle up IFQ accounts after NMFS can issue IFQ to the QS holder harvester. Therefore, it is possible that delivery. In turn, this flexibility would directly, or to a crab harvesting a processor holding IPQ may not have permit harvesters to use vessels already cooperative comprised of multiple QS any available unmatched IPQ if a on the fishing grounds without the holders. Crab harvesting cooperatives harvester were to deliver more Class A additional use of fuel to leave boats idle have been used extensively by QS IFQ than the amount specified on his at sea while an IFQ transfer is holders to allow them to receive a larger IFQ permit. Typically, processors refuse processed. IFQ pool and coordinate deliveries and to accept a delivery of Class A IFQ that The Proposed Action price negotiations among numerous is greater than the amount of available vessels. Most QS holders have joined unmatched IPQ. The proposed action would allow cooperatives in the first three years of Although matching Class A IFQ and post–delivery transfers to cover overages the CR Program, and are likely to IPQ among the numerous harvesters and of IPQ as well as Class A IFQ, Class B continue to do so because of the processors can be complicated, overages IFQ, C shares, and CPO IFQ. There economic and administrative benefits of are uncommon. In the first two crab would be no limit on the size of a post– consolidating their IFQs. fishing years under the CR Program delivery transfer or on the number of post–delivery transfers a person could IFQ Overages Under Current System (2005–2006 and 2006–2007), most of the IFQs were harvested and few overages undertake. However, a person could not Under existing regulations, harvesters occurred. There were 16 overages in the begin a new fishing trip if any of the IFQ are prohibited from exceeding the first and 25 in the second year under the accounts of the IFQ permits available to amount of IFQ that is issued to them, CR Program. These overages represented be used on a vessel were zero or either individually, or to their less than 0.1 percent (1/1000) of the negative, and no person could have a cooperative (see § 680.7(e)(2)). If a TAC in each year. negative balance in an IFQ or IPQ harvester delivers more crab than the Currently, catcher vessel crab account after June 30, the end of a crab amount of IFQ that he holds, he has landings are offloaded and processed by fishing year. violated existing regulations, commonly the facility receiving the delivery. Once For IFQ holders, no person would be known as an overage. Overages can final weights have been determined, permitted to begin a new fishing trip in occur either through deliberate actions, IFQs and IPQs are assigned by the a crab fishery until the overage was or more commonly through fisherman and processor. Any IFQ accounted for and the IFQ balances of unintentional errors such as overage is noted and referred to NOAA the persons onboard that vessel for all miscalculating the weight of catch to be Fisheries Office for Law Enforcement crab fisheries were positive. NMFS delivered relative to the amount of IFQ proposes to define the term ‘‘fishing (OLE). available. Because harvesters do not trip’’ for purposes of this requirement to know the precise weight of a delivery of Need for Proposed Action provide a clear standard for fishery crab, estimates made onboard the vessel At the request of industry to facilitate participants. NMFS proposes that a using a sample of average weight may be operations in the fishery, the Council fishing trip would be defined as the lower than the actual delivery weight. If adopted the following purpose and need period beginning when a vessel operator a harvester is making his or her last statement for this action: commences harvesting crab in a crab QS fishing trip for a season and no fishery and ending when the vessel additional IFQ is available in his or her Under the crab rationalization program, operator offloads or transfers any crab account, then an overage may occur. harvesters receive annual allocations of from that crab QS fishery whether However, in most cases harvesters individual fishing quota that provide an processed or unprocessed from that attempt to account for potential exclusive privilege to harvest a specific vessel. overages by maintaining catch below number of pounds of crab from a fishery. Any The term ‘‘crab QS fishery’’ is defined their IFQ holdings, slightly harvest in excess of an individual fishing under existing regulations at § 680.2 and underharvesting the maximum amount quota allocation is a regulatory violation, means all nine crab QS fisheries, but of crab possible. punishable by confiscation of crab or other does not include the Western Alaska penalties. Precisely estimating catch at sea Similarly, existing regulations during the fishery is difficult and costly, due Community Development Quota (CDQ) prohibit processors from receiving more to variation in size of crab, and sorting and Program, and Western Aleutian Islands Class A IFQ than the amount of unused measurement requirements. Overages can golden king crab issued to the Adak IPQ that they hold (see regulations at result from mistakes, by participants Community Entity (ACE). The Council § 680.7(a)(5)). Generally, processors attempting to accurately estimate catch. The specifically tailored this proposed have established relationships with inability to address overages also impedes action to address IFQ and IPQ in the specific harvesters before crab fishing flexibility in attempting to optimally harvest crab QS fisheries, and did not indicate begins and may not have unused IPQ IFQ. A provision allowing for post–delivery that CDQ or ACE fisheries would be available to receive crab from harvesters transfer of individual fishing quota to cover modified by this action. CDQ and ACE overages could reduce the number of that do not have an established violations, allowing for more complete crab allocations are not issued as IFQ relationship with that processor. Under harvest of allocations, and reduce and there is no corresponding IPQ. the provisions of the CR Program’s enforcement costs, without increasing the Furthermore, CDQ groups that are Arbitration System, harvesters can risk of overharvest of allocations. issued CDQ crab allocations are choose to commit their Class A IFQ to permitted to engage in post–delivery match the IPQ held by processors (see Allowing post–delivery transfers in the transfers under section 305(i)(1)(C) of regulations at § 680.20). Once IFQ crab fisheries is expected to mitigate the Magnuson–Stevens Act, and because shares are committed and matched with potential overages, reduce enforcement the ACE crab allocation is issued to only

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one entity, it cannot be transferred, and proposed action, but overages subject to share use. At the time of landing, RAM there is no need to establish a post– penalty should decline. will maintain a record of any overage, delivery transfer mechanism. Harvesters are likely to realize but instead of reporting overages to The proposed definition of a fishing production efficiency gains under this NOAA OLE immediately, RAM would trip would effectively extend from the alternative from allowing greater defer reporting until June 30, the end of first harvest in a crab QS crab fishery flexibility in harvesting. Under the the crab fishing year. RAM would use until the beginning of a delivery of crab status quo, harvesters may be required the same process for post–delivery from a catcher vessel, or the beginning to wait in port or remain idle on the transfers as currently used under of offloading or transferring of processed fishing grounds until a transfer can be regulations at § 680.41. processed and a positive IFQ balance is crab from a catcher/processor. This Summary of Regulatory Changes definition would ensure that a vessel available. Under the proposed action, operator could not commence fishing harvesters could finish their fishing trip This action proposes the following for a crab QS fishery on any vessel until and settle the balance when back in changes to the existing regulatory text at port. Some production efficiency gains 50 CFR part 680: all the IFQ accounts of all IFQ permits • used onboard that vessel are positive. should be realized by allowing Add a new definition for the term harvesters to more precisely harvest the ‘‘fishing trip’’ at § 680.2; This provision is intended to discourage • harvesters from continuing to debit crab total IFQ allocation with fewer Modify the existing prohibition at against their IFQ account for numerous uncovered overages. Harvesters are also § 680.7(a)(5) to clarify that a person may fishing trips and run an increasingly likely to benefit from a reduction in the not receive Class A IFQ greater than the negative balance without ensuring that number of overage violations, which amount of unused IPQ that person holds there is adequate available unused IFQ should be reduced through post– in a crab QS fishery unless they that can be transferred to cover that delivery transfers. It is unlikely that subsequently receive unused IPQ before negative balance. This provision would harvesters will have excessive overages the end of the crab fishing year to allow a vessel operator to begin a fishing by unreasonable reliance on the ensure their IPQ balance is not negative; • Modify the existing prohibition at trip for one crab QS fishery (e.g., snow provision for post–delivery transfers. § 680.7(e)(2) to clarify that a person crab) provided the harvester had unused This proposed action will most benefit cannot begin a fishing trip with a vessel IFQ in that fishery, even if that harvester Class A IFQ holders by allowing in a crab QS fishery if the total amount had a negative balance in another crab harvesters to continue operating without of unharvested crab IFQ that is currently QS fishery (e.g., Bristol Bay red king idling their operations and incurring additional costs. held in the IFQ accounts of all crab IFQ crab). However, in this example, if a This proposed action would have permit holders or Crab IFQ Hired vessel operator harvested (i.e., caught limited impacts on processors. Masters onboard that vessel for that crab and retained) any Bristol Bay red king Processors should have few overages, QS fishery is zero or less; and crab while fishing for snow crab, the since overages can be avoided by simply • Add a prohibition at § 680.7(e)(3) to harvester would be in violation of the refusing delivery of landings in excess prohibit a person from having a negative regulations. This proposed rule would of IPQ holdings. Only when a harvester balance in an IFQ or IPQ account for a not modify existing regulations that has an IFQ overage that would be crab QS fishery after the end of the crab require that IFQ issued to a cooperative covered by a post–delivery transfer of fishing year for which that IFQ or IPQ can be transferred only between Class A IFQ might a processor need to permit was issued. cooperatives, and that IFQ held outside obtain IPQ to cover an overage. of cooperatives can be transferred only This proposed action would require Classification to another person who would hold that NMFS to debit IPQ accounts if a The Assistant Administrator for IFQ outside of a cooperative. processor accepts delivery of Class A Fisheries, NOAA, has determined that The proposed action would minimize IFQ in excess of the amount of Class A this proposed rule is consistent with the risk of negative IFQ or IPQ accounts IFQ that is matched with that processor. Amendment 28, the Magnuson–Stevens by prohibiting an IFQ or IPQ holder Typically, NMFS has not debited an IPQ Act, and other applicable laws, subject from maintaining a negative balance in account of a processor if an excess of to further consideration after public an IFQ or IPQ account after the end of Class A IFQ was delivered because comment. the crab fishing year for which that IFQ NMFS did not wish to encourage waste This proposed rule has been or IPQ account was issued. This by having processors refuse delivery of determined to be not significant for prohibition would effectively require Class A IFQ, or debit an IPQ account of purposes of Executive Order 12866. that all post–delivery transfers of IFQ or a processor and potentially cause the An IRFA was prepared that describes IPQ must be completed by June 30 of processor to exceed his IPQ account due the economic impact this proposed rule, each year, the end of the crab fishing to the actions of a harvester. However, if adopted, would have on small year. Overages that are not covered by with this proposed action, NMFS would entities. Copies of the RIR/IRFA June 30 of each year could be subject to debit the IPQ account of a processor prepared for this proposed rule are a penalty or other enforcement action. who accepts Class A IFQ in excess of available from NMFS (see ADDRESSES). Expected Effects of the Proposed Action the amount in his IPQ account because The RIR/IRFA prepared for this that processor could subsequently proposed rule incorporates by reference The RIR describes in detail the balance his IPQ account through a post– an extensive RIR/IRFA prepared for predicted effects of the proposed action delivery transfer of IPQ. Amendments 18 and 19 to the FMP that on harvesters, processors, communities, detailed the impacts of the CR Program management and enforcement, Recordkeeping and Reporting on small entities. consumers, and the nation (see Requirements The IRFA for this proposed action ADDRESSES). Only the effects of the No new recordkeeping or reporting describes the action, why this action is proposed action on harvesters and requirements would be imposed by this being proposed, the objectives and legal processors are described here. Overall, action. NMFS Restricted Access basis for the proposed rule, the type and the number of overages at the time of Management Program (RAM) will number of small entities to which the landing may increase slightly under the continue to oversee share accounts and proposed rule would apply, and

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projected reporting, recordkeeping, and Class A IFQ comprises the majority of Authority: 16 U.S.C. 1862; Pub. L. 109– other compliance requirements of the all IFQ issued in crab QS fisheries, and 241; Pub. L. 109–479. proposed rule. It also identifies any the proposed action would provide 2. In § 680.2, the term ‘‘Fishing trip overlapping, duplicative, or conflicting Class A IFQ holders greater flexibility to for purposes of § 680.7(e)(2)’’ is added federal rules and describes any maximize harvests of their allocations in alphabetical order to read as follows: significant alternatives to the proposed without risking overages. Persons § 680.2 Definitions. rule that accomplish the stated holding IFQ outside of a cooperative objectives of the Magnuson–Stevens Act would be expected to benefit the least * * * * * and other applicable statutes, and that from this action because only a small Fishing trip for purposes of would minimize any significant adverse portion of the total IFQ issued is issued § 680.7(e)(2) means the period beginning economic impact of the proposed rule to persons who hold IFQ outside of when a vessel operator commences on small entities. The description of the cooperatives, and they would have a harvesting crab in a crab QS fishery and proposed action, its purpose, and its limited pool of persons with whom to ending when the vessel operator legal basis are described in the preamble negotiate transfers. Among the three offloads or transfers any crab in that and are not repeated here. alternatives considered, the proposed crab QS fishery whether processed or This action directly regulates holders action would best minimize potential unprocessed from that vessel. of IFQ and IPQ, who could engage in adverse economic impacts on the * * * * * post–delivery transfers to cover overages directly regulated entities. Under the 3. In § 680.7, paragraphs (a)(5) and if the action is adopted. Estimates of the status quo, no post–delivery transfers (e)(2) are revised, and paragraph (e)(3) is number of small entities holding IFQ are would be allowed and small entities added to read as follows: based on estimates of gross revenues. would continue to be penalized for Since many IFQs are held by overages. Alternative 3 would have § 680.7 Prohibitions. cooperatives, landings data from the allowed post–delivery transfers, but * * * * * most recent season for which data are with more limitations and restrictions (a) * * * available in the crab fisheries (2006– than the preferred alternative. The (5) Receive any crab harvested under 2007) were used to estimate the number preferred alternative gives small entities a Class A IFQ permit in excess of the of small entities. Based on those data, 44 the most flexibility to cover overages. total amount of unused IPQ held by the entities received IFQ allocations. Of Allowing post–delivery transfers RCR in a crab QS fishery unless that these, 13 were large entities and 31 were should reduce the number of overages RCR subsequently receives unused IPQ considered small entities. that result in forfeiture of catch and by transfer as described under § 680.41 Estimates of small entities holding other penalties. Persons holding IFQ that is at least equal to the amount of all IPQ are based on the number of outside of a cooperative may have a Class A IFQ received by that RCR in that employees of IPQ holding entities. limited ability to make post–delivery crab QS fishery before the end of the Currently, 24 entities receive IPQ transfers because most IFQs are assigned crab fishing year for which an IPQ allocations. Of these, 11 are estimated to to cooperatives. permit was issued. be large entities and 13 are considered List of Subjects in 50 CFR Part 680 * * * * * small entities. Alaska, Fisheries. (e) * * * Any person wishing to cover an (2) Begin a fishing trip for crab in a overage would be required to engage in Dated: December 8, 2008. crab QS fishery with a vessel if the total a transfer of IFQ (or IPQ, in the case of Samuel D. Rauch III, amount of unharvested crab IFQ that is a processor). The required reporting and Deputy Assistant Administrator for currently held in the IFQ accounts of all recordkeeping for a post–delivery Regulatory Programs, National Marine crab IFQ permit holders or Crab IFQ transfer would be the same as for any Fisheries Service. Hired Masters aboard that vessel in that other transfer of IFQ (or IPQ). For the reasons set out in the crab QS fishery is zero or less. All of the directly regulated entities preamble, 50 CFR part 680 is proposed would be expected to benefit from this to be amended as follows: (3) Have a negative balance in an IFQ or IPQ account for a crab QS fishery action relative to the status quo PART 680—–SHELLFISH FISHERIES alternative because the proposed action after the end of the crab fishing year for OF THE EXCLUSIVE ECONOMIC ZONE which an IFQ or IPQ permit was issued. would allow greater flexibility and a OFF ALASKA period of time in which to reconcile * * * * * overages. Class A IFQ holders would be 1. The authority citation for 50 CFR [FR Doc. E8–29494 Filed 12–11–08; 8:45 am] expected to benefit the most because part 680 continues to read as follows: BILLING CODE 3510–22–S

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Notices Federal Register Vol. 73, No. 240

Friday, December 12, 2008

This section of the FEDERAL REGISTER the collection of information unless it public service delivered by three contains documents other than rules or displays a currently valid OMB control separate agencies, and should make the proposed rules that are applicable to the number. aquatic export certification process less public. Notices of hearings and investigations, confusing for those who require this Animal and Plant Health Inspection committee meetings, agency decisions and important service. Failing to use this rulings, delegations of authority, filing of Service form could result in less efficient petitions and applications and agency Title: Health Certificate for the Export statements of organization and functions are service to the exporting public. examples of documents appearing in this of Live Crustaceans, Finfish, Mollusks, Description of Respondents: Farms; section. and Related Products. Individuals or households. OMB Control Number: 0579–0278. Number of Respondents: 40. Summary of Collection: The export of Frequency of Responses: Reporting: DEPARTMENT OF AGRICULTURE agricultural commodities, including On occasion. animals and animal products, is a major Total Burden Hours: 100. business in the United States and Submission for OMB Review; Ruth Brown, Comment Request contributes to a favorable balance of trade. The Animal and Plant Health Departmental Information Collection December 9, 2008. Inspection Service (APHIS) maintains Clearance Officer. The Department of Agriculture has information regarding the import health [FR Doc. E8–29457 Filed 12–11–08; 8:45 am] submitted the following information requirements of other countries for BILLING CODE 3410–34–P collection requirement(s) to OMB for animals and animal products exported review and clearance under the from the United States. The regulations Paperwork Reduction Act of 1995, governing the export of animals and DEPARTMENT OF AGRICULTURE Public Law 104–13. Comments products from the United States are regarding (a) whether the collection of DEPARTMENT OF HOMELAND contained in 9 CFR parts 91, subchapter SECURITY information is necessary for the proper D. ‘‘Exportation and Importation of performance of the functions of the Animals (including Poultry) and Animal Science and Technology Directorate; agency, including whether the Products,’’ and apply to farm-raised Notice of Availability of the Final information will have practical utility; aquatic animals and products, as well as Environmental Impact Statement for (b) the accuracy of the agency’s estimate other livestock and products. These the Proposed National Bio and Agro- of burden including the validity of the regulations are authorized by the Defense Facility methodology and assumptions used; (c) Animal Health Protection Act (7 U.S.C. ways to enhance the quality, utility and 8301–8317). The National Marine AGENCY: Science and Technology clarity of the information to be Fisheries Service (NMFS), National Directorate (Office of National collected; (d) ways to minimize the Oceanic and Atmospheric Laboratories within the Office of burden of the collection of information Administration (NOAA), U.S. Research), DHS; Department of on those who are to respond, including Department of Commerce, and the Fish Agriculture (USDA). through the use of appropriate and Wildlife Service (FWS), U.S. ACTION: Notice of availability. automated, electronic, mechanical, or Department of Interior, as well as other technological collection APHIS, have legal authorities and SUMMARY: The U.S. Department of techniques or other forms of information responsibilities related to aquatic Homeland Security (DHS) announces technology should be addressed to: Desk animal health in the United States. All the availability of its National Bio and Officer for Agriculture, Office of three agencies have therefore entered Agro-Defense Facility Final Information and Regulatory Affairs, into a Memorandum of Understanding Environmental Impact Statement Office of Management and Budget delineating their respective (NBAF Final EIS). This announcement (OMB), responsibilities in the issuance of the is pursuant to the National [email protected] or health certificate for the export of live Environmental Policy Act of 1969 fax (202) 395–5806 and to Departmental aquatic animals and animal products. (NEPA), as amended, and its Clearance Office, USDA, OCIO, Mail Need and Use of the Information: The implementing regulations at 40 CFR Stop 7602, Washington, DC 20250– health certificate will require the names parts 1500–1508. The Proposed Action 7602. Comments regarding these of the species being exported from the to site, construct, and operate the information collections are best assured U.S., their age and weights, and whether National Bio and Agro-Defense Facility of having their full effect if received they are cultured stock or wild stock; (NBAF) would allow researchers to within 30 days of this notification. their place of origin, their country of develop tests to detect foreign animal Copies of the submission(s) may be destination and the date and method of diseases and zoonotic diseases obtained by calling (202) 720–8958. transport. The certificate will be (transmitted from animals to humans) An agency may not conduct or completed by an accredited inspector and develop vaccines (or other sponsor a collection of information with assistance from the producer and countermeasures such as antiviral unless the collection of information must be signed by both the accredited therapies) to protect agriculture and displays a currently valid OMB control inspector as well as the appropriate food systems in the United States. The number and the agency informs Federal official from APHIS, NOAA, or NBAF would enhance U.S. biodefense potential persons who are to respond to FWS who certifies the health status of capabilities with modern and integrated the collection of information that such the shipment being exported. The use of high-security (biosafety levels 3 and 4) persons are not required to respond to the certificate will lend consistency to a facilities that would ensure U.S.

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vulnerabilities and risks from agro- United States Agriculture and Food, document. DHS and USDA, a consulting terrorism are safely addressed. DHS DHS proposed to build the integrated agency on this EIS, will also consider anticipates that the proposed NBAF research, development, test, and information from associated support would focus biosafety level 3 evaluation facility called the National documentation including: Threat and agricultural (BSL–3Ag) research on Bio and Agro-Defense Facility (NBAF). Risk Assessment, Site Cost Analysis, African swine fever, classical swine In June 2008, DHS published the Site Characterization Study, Plum fever, contagious bovine NBAF Draft EIS, which analyzed the Island Facility Closure and Transition pleuropneumonia, foot and mouth environmental impacts of the Proposed Cost Study, as well as prior analysis of disease, Japanese encephalitis, and Rift Action on six site alternatives, as well the site alternatives against DHS’s site Valley fever; BSL–4 research would as the No Action Alternative. The site selection evaluation criteria. address Hendra and Nipah viruses. alternatives include: (1) South Milledge DHS will announce its decision on DATES: DHS will consider comments on Avenue Site, Athens, Georgia; (2) the Proposed Action in the Record of the NBAF Final EIS, received by January Manhattan Campus Site, Manhattan, Decision (ROD) that identifies the 12, 2009, to determine whether they Kansas; (3) Flora Industrial Park Site, alternatives considered, the decisions identify new information relevant to Flora, Mississippi; (4) Plum Island Site, made, the environmentally preferable environmental concerns bearing upon Plum Island, New York; (5) Umstead alternative, and the factors balanced by the Preferred Alternative. Research Farm Site, Butner, North the Department in making the decision. ADDRESSES: The NBAF Final EIS, which Carolina; and (6) Texas Research Park The NBAF ROD will include: (1) The includes the Executive Summary and Site, San Antonio, Texas. Under the No decision whether or not to build the the Comment Response Document, is Action Alternative, the NBAF would not NBAF; (2) if the decision is made to available online at http://www.dhs.gov/ be constructed and DHS would continue build the NBAF, where it will be built; nbaf and in designated reading rooms to use the Plum Island Animal Disease (3) the site alternatives considered in (see SUPPLEMENTARY INFORMATION). Center with necessary investments in the EIS; (4) whether all practicable facility upgrades, replacements, and Compact disks and paper copies are means to avoid or minimize repairs so that it could continue to available upon written request via e- environmental impacts from the mail or U.S. mail. Submit written operate at its current capability level. The EPA published the Notice of alternative selected have been adopted comments on the NBAF Final EIS to and, if not, why; (5) any monitoring and [email protected] or via Availability of the NBAF Draft EIS on June 27, 2008 (73 FR 36540). During the enforcement that would be necessary to mail: NBAF Program Manager; P.O. Box offset unavoidable environmental 2188; Germantown, MD 20875–2188. 60-day public comment period, which concluded on August 25, 2008, DHS impacts; and (6) relevant comments on Individual names and addresses the NBAF Final EIS. DHS will issue a (including e-mail addresses) received as held 13 public meetings in the vicinity of the site alternatives and in ROD on the proposed action no sooner part of comment documents on the than 30 days after the NOA of the NBAF NBAF Final EIS will be part of the Washington, DC to facilitate information exchange and to solicit comments on Final EIS is published in the Federal public record and subject to disclosure. Register. Any person wishing to have his/her the NBAF Draft EIS. DHS gave equal consideration to the The NBAF Final EIS is available for name, address, or other identifying approximately 5,400 identified review at the following reading rooms: information withheld from public comments collected via e-mail, mail, release must state this request in the Georgia public meetings, and toll-free fax and comment document. DHS will consider telephone numbers during the public University of Georgia Main Library, 320 all comments received before the Record comment period. DHS’s responses to South Jackson Street, Athens, GA of Decision is signed. comments are presented in Appendix H 30602; FOR FURTHER INFORMATION CONTACT: of the Final EIS. The NBAF Final EIS Oconee County Library, 1080 Questions regarding the NBAF Final EIS reflects changes based on the comments Experiment Station Road, should be directed to James V. Johnson received, availability of new data, and Watkinsville, GA 30677. DHS; Science and Technology correction of errors and omissions. Directorate; Mail Stop #2100; 245 DHS anticipates distributing Kansas Murray Lane, SW.; Building 410; approximately 2,600 copies of the NBAF Manhattan Public Library, 629 Poytnz Washington, DC 20528–0300 or e-mail Final EIS and/or the Executive Avenue, Manhattan, KS 66502; to [email protected]. Summary to congressional members and Hale Library, Kansas State University, SUPPLEMENTARY INFORMATION: DHS is committees; federal, state, and local Manhattan, KS 66506. responsible for detecting, preventing, agency and governmental protecting against, and responding to representatives and elected officials; Mississippi terrorist attacks within the United Native American representatives; States. These responsibilities, as applied City of Flora Library, 144 Clark Street, special interest groups and non- Flora, MS 39071. to the defense of animal agriculture, are governmental organizations; and shared with the U.S. Department of individuals. New York Site Agriculture (USDA). In developing a The DHS Preferred Alternative coordinated strategy to adequately identified in the NBAF Final EIS is to Acton Public Library, 60 Old Boston protect the nation against biological build and operate the NBAF at the Post Road, Old Saybrook, CT 06475; threats to animal agriculture, DHS and Manhattan Campus Site in Kansas. Southold Free Library, 53705 Main USDA identified a gap that must be The NBAF Final EIS analyzes the Road, Southold, NY 11971. filled by an integrated research, potential impacts of the Proposed North Carolina development, test, and evaluation Action on the physical, biological, and infrastructure for combating threats to human environments at each of the six Richard H. Thornton Library, 210 Main U.S. agriculture. To bridge this gap and site alternatives, as well as the potential Street, Oxford, NC 27565–0339; comply with Homeland Security impacts of the No Action Alternative. South Branch Library, 1547 South Presidential Directive 9, Defense of This Final EIS is not a decision Campus Drive, Creedmoor, NC 27522.

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Texas A Draft EIS (DEIS) would be completed are ponderosa pine, grand fir, Douglas- Central Library, 600 Soledad, San after reviewing the preliminary scoping fir, western larch, Englemann spruce, Antonio, TX 78205. comments for significant issues and the subalpine fir, and lodgepole pine. potential development of alternatives to Deciduous tree species include quaking Authority: 42 U.S.C. 4321–4347 (National the proposed action. The DEIS is aspen and black cottonwood. The Environmental Policy Act). expected to be filed with the majority of the forested stands have a Dated: December 3, 2008. Environmental Protection Agency (EPA) dense multistory stand structure. Bruce Knight, and be available to the public for review The project area has seen management Under Secretary, Marketing and Regulatory by May 2009. The Final EIS is activity in the past, with the most recent Programs, USDA. scheduled to be completed by October being connected to three large Jay M. Cohen, 2009. If approved, the project would vegetation management projects: Little Under Secretary, Science & Technology, DHS. begin to be implemented sometime in Eagle, EagleHolcomb and Eagle-Paddy [FR Doc. E8–29142 Filed 12–11–08; 8:45 am] 2010. projects. These past actions included timber harvest, noncommercial thinning BILLING CODE 4410–10–P ADDRESSES: Send written comments to: and fuels treatments including hand and Ken Anderson, Whitman District Ranger machine piling, aspen restoration and P.O. Box 947, 3285 11th Street, Baker prescribed fire, and were completed in DEPARTMENT OF AGRICULTURE City, OR 97814. Send electronic the late 1990s. While the focus of these comments to: comments- most recent projects were stand Forest Service pacificnorthwest-wallowa-whitman- prioritization based upon silvicultural [email protected]. Send FAX Wallowa-Whitman National Forest, need, including tree species comments to 541–742–6705. Please Baker County, OR; Snow Basin composition, stand structure and stand reference the project name (Snow Basin Vegetation Management Project density, earlier projects were much Vegetation Management Project) on your more focused on cutting larger, high AGENCY: Forest Service, USDA. submissions. value trees. The Snow Basin Vegetation ACTION: Notice of intent to prepare an FOR FURTHER INFORMATION CONTACT: Joe Management Project would be focused environmental impact statement. Sciarrino, Project Manager, Whitman on a landscape view with the analysis Ranger District, Pine Office, 38470 Pine and treatments based on landscape SUMMARY: The USDA Forest Service will Town Lane, Halfway, Oregon 97834, ecological needs. prepare an environmental impact telephone 541–742–6714, TDD (541) statement (EIS) to disclose 523–1405, e-mail [email protected]. Purpose and Need for Action environmental effects on a proposed An additional contact is Lynne Smith, The purpose and need for this action to manage fuels and vegetation telephone 541–742–6715, e-mail proposal is to begin moving the project and produce forest products in the Little [email protected]. Additional area landscape toward the historic range Eagle Creek, and Eagle Creek Paddy information and large-scale color maps of variability for the various biophysical subwatersheds. The Snow Basin will be posted on the Forest Web site at: environments in the project area, and to Vegetation Management Project is http://www.fs.fed.us/r6/w-w/projects/. substantially reduce the risk of located on the Wallowa-Whitman SUPPLEMENTARY INFORMATION: uncharacteristic wildfire, and the National Forest, Whitman Ranger wildfire threat to life and property; District, Pine Office, Baker County, Background Information particularly in the vicinity of the deeded Oregon. The legal location is T.7S, The project area is located north and land in-holdings. R.44E, all sections, and T.8S, R44E, northwest of Richland, Oregon, in The NFS lands in the project area most sections. The project area Townships 6, 7 and 8 South, Ranges 43, have been managed with timber harvest encompasses two subwatersheds located 44, and 45 East. The project area for many decades. The focus of historic north and northwest of Halfway and includes 26,730 acres of NFS (National treatments was to harvest the large, Richland, Oregon, consisting of Forest System) lands and 2,107 acres of mature overstory trees, particularly approximately 27,680 acres of National private deeded in-holdings. A small those of high value like ponderosa pine. Forest System (NFS) lands, 281 acres of amount of Baker County owned lands The focus of more recent projects was Baker County inholdings, and 2,107 (281 acres) also occur within the project silvicultural needs, but the treatments acres of private deeded inholdings. The area. Elevations within the project area were located in selected stands and proposed action would use commercial range from approximately 4,400 feet on scattered throughout the landscape. The harvest of timber, noncommercial the southern boundary near Sparta Butte assumption and expectation was that thinning, aspen restoration and and Forshey Meadow up to stands would be treated every 10 years, prescribed fire on approximately 17,200 approximately 6,500 feet at its northern providing a management and acres. No new permanent road boundary near the Eagle Cap maintenance regime supporting construction would occur, but Wilderness. The Eagle Creek Wild and maximum tree growth. The 10-year temporary roads would be constructed, Scenic River Corridor averages 3,200 follow-up treatments, however, were not existing permanent roads would be feet in elevation and roughly divides the initiated and stand conditions and reconstructed as warranted, and one project area in half. Other major streams landscape conditions have changed. In existing bridge would be reconstructed. within the project area include Little addition, the natural role of fire has No Inventoried Roadless Areas (IRAs) or Eagle, Twin Bridges, Conundrum, been generally excluded from this potential wilderness areas are affected Spring, Paddy, Gold, Packsaddle, landscape. by this project. Additional details of the Holcomb, Empire Gulch, and Dempsey. As a cumulative result, landscape proposed action are noted below in the The project area is characterized by a conditions are now characterized by SUPPLEMENTARY INFORMATION Section. mixture of forest and natural openings deviations from the historic range of DATES: Preliminary comments of various sizes. The forested stands variability for the various biophysical concerning the Snow Basin Vegetation range from high elevation subalpine fir/ environments. More specifically, this Management Project would be most lodgepole pine to low elevation pure has resulted in a large scale reduction in useful if received by January 30, 2009. ponderosa pine. Coniferous tree species large diameter ponderosa pine trees, a

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reduced LOS (late old structure), and Estimates suggest that aspen trees 5. Prescribed fire on 12,000–13,000 domination of the faster growing shade historically covered 500 to 1,000 acres acres to reduce commercial harvest tolerant grand fir and Douglas-fir. A across the Pine and Eagle Creek activity fuels following commercial very high risk of uncharacteristic watersheds. Actual current acreage is treatments. wildfire exists, both because of stand unknown but is estimated at 200 to 500 6. Grapple pile and burn on structures and fire/fuels condition acres. Aspen stands not only provide approximately 7,220 acres to reduce classes. Therefore, actions needed to habitat for many wildlife species, they commercial harvest activity fuels meet the purpose and need involve: also provide vegetative diversity and following commercial treatments. 1. Restoring characteristic and aesthetic beauty. More specifically, 7. Remove Danger Trees from the sustainable stand densities, tree species restoring quaking aspen involves open road system for public and forest composition, and forest stand structure removing all conifer competition with worker safety. This would include their by: the exception of mature (orange bark) commercial removal for biomass. • Managing stand density to improve ponderosa pine greater than 21″ dbh and Danger trees are defined as as a standing diameter growth rates towards future Douglas-fir greater than 32″. tree that presents a safety hazard to LOS (late old structure), increasing 5. In addition to the primary purposes people due to conditions such as stand resistance to wildfire and inherent of creating sustainability and improving deterioration or physical damage to the ponderosa pine’s resistance to bark forest health and decreasing risk of root system, trunk, stem, or limbs, and beetles. uncharacteristic wildfire, the project the direction (or lean) of the tree. Those • Adjusting tree species composition offers the opportunity to market and removed would meet the definition as and stand structure by selecting for expand the availability of economically described in ‘‘Field guide for danger removal tree species that serve as hosts and socially important forest products, trees identification and response’’ 2008. for defoliating insects and root and stem not only the traditional sawlog and pulp Toupin. R., et al. USDA For. Ser. Pac. disease, and species that are susceptible components, but also general biomass Northwest Region. 8. Within the project area, use an to fire. and fuel wood. While the purpose and • estimated 180 miles of existing National Converting multiple-story stands to need for treatments are ecological, the Forest System Road (NFS) for single-story stands to increase landscape result is forest products. Demands for commercial log haul. No new diversity, helping to reduce the extent forest products continue to increase, permanent specified road construction and severity of disturbance and to and environmental impacts from the use is planned. Approximately 10.6 miles of restore HRV. of alternative materials or imported 2. Moving Fire Regime Condition temporary road construction is products can be significant. The project proposed. These temporary roads are in Classes 3 and 2 to Condition Class I by: area is large and includes easy access • Adjusting stand structures as in #1 46 segments ranging in length from less from two rural communities, Halfway above. than 0.1 mile to 0.7 miles, and the and Richland, Oregon, which provides • Reducing natural fuel loadings average length is 0.2 miles. All NFS an opportunity to offer substantial commensurate to the standards roads would be maintained in quantities of fuelwood. Since many established for the specific biophysical accordance with standard timber sale local citizens rely on fuelwood as their environments. road maintenance specifications. Of the • Managing activity (vegetation primary source of heat, particularly now estimated 180 miles of haul roads, management generated) fuels also to the with the rising fossil fuel prices, the approximately 100 miles are currently standards established for the specific public is asking for increased fuelwood closed roads (maintenance level 1) and biophysical environments. opportunities. To support this need, would be re-closed when harvest and 3. Placing priority on treating the NFS emphasis is being placed on, and post-sale activities, including firewood lands in and adjacent to Sparta and consideration given to modifying the gathering, are completed. Temporary Surprise Springs WUI’s and one stand current Forest-wide policy for the roads would be closed and rehabilitated in the Carson WUI. Treatments would project area to allow the removal as prior to the closure of the timber sale. emphasize a reduction in the risk of fuelwood any dead and down trees of Reconstruction is proposed on uncharacteristic wildfire over an any species and any size tree within 150 approximately 48 miles of NFS roads. improvement in HRV to reflect the feet of an open road, as long as it is in Here, the term reconstruction refers to emphasis on protection of life and compliance with all other existing road work outside the scope of timber property in the WUI areas. The priority permit requirements. sale maintenance specifications and treatments include: Proposed Action would be listed in the timber sale • Treating the NFS lands identified in contract for specified road the CWPP (Community Wildfire The Proposed Action, on NFS lands reconstruction and applicable to Protection Plan) adopted by Baker only, is to: contract clause BT 5.2. Types of activity County. 1. Commercially harvest 13,887 acres included under reconstruction include a • Treating other adjacent NFS lands using a combination of overstory bridge replacement (0.1 mi); repair of that would help decrease the potential removal, partial removal, sanitation, abutments on two bridges (0.2 mi.); for intense fire behavior adjacent to thinning, and regeneration cuts, with a realign road location which would homes and private property. potential yield of 60–70 MIMBF. This create new ground disturbance (1.0 mi); 4. Initiating treatments to restore project would potentially generate 5 restore roads to a serviceable standard quaking aspen across the landscape to timber sales that would be offered one by clearing heavily overgrown roads, better reflect historic conditions. Aspen per year over a 5-year period starting in removing slides and slough and historically occurred as dense even-aged 2010, if the project is approved. repairing slumps greater than 10 cubic stands or clones usually seral to one of 2. Remove conifer competition from yards, repairing and improving drainage the fir or other coniferous climax 30 acres of quaking aspen. structures, drainage and subgrade species. Today aspen exists as scattered 3. Non-commercially thin reinforcement for seeps and springs, and individuals or small clumps many of approximately 12,200 acres (NCT only rock surfacing (46.7 miles). Of the roads which are overtopped by conifers (Eagle and NCT following harvest treatments). proposed for reconstruction, Creek Watershed Assessment, 1997). 4. Prescribed fire only on 3,300 acres. approximately 21 miles are currently

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closed roads (maintenance level 1) and Responsible Official and Nature of comments will not have standing to 27 miles are open roads maintained for Decision To Be Made appeal the subsequent decisions under high clearance vehicles (maintenance The Responsible Official is Steven A. 36 CFR Parts 215 or 217. Additionally, level 2). Reconstruction is also proposed Ellis, Forest Supervisor of the Wallowa- pursuant to 7 CFR 1.27(d), any person (by agreement) for 2.4 miles of a Baker Whitman National Forest, P.O. Box 907, may request the agency to withhold a County road consisting of clearing, 1550 Dewey Avenue, Baker City, Oregon submission from the public record by drainage, and rock surfacing. This 97814. The Responsible Official will showing how the Freedom of project will consider the decide if the proposed project will be Information Act (FOIA) permits such decommissioning of approximately 6 implemented and will document the confidentiality. Persons requesting such miles of NFS road. These roads are decision and reasons for the decision in confidentiality should be aware that currently closed and will be analyzed a Record of Decision. That decision under the FOIA, confidentiality may be for future need to the transportation would be subject to Forest Service granted in only very limited system. If decommissioned, the roads Appeal Regulations at 36 CFR 215. circumstances such as to protect trade secrets. The Forest Service will inform would be removed from the NFS road Scoping Process system. the requester of the agency’s decision Public participation will be especially regarding the request for confidentiality, 9. Preliminary analysis indicates that important at several points during the and where the request is denied; the selecting the proposed action would analysis, beginning with the scoping agency will return the submission and require several amendments to the process (40 CFR 1501.7). The Snow notify the requester that the comments Forest Plan. All center around the Basin Vegetation Management Project may be resubmitted with or without harvest of live trees greater than or equal has been listed in the Wallowa- name and address within a specified ″ to 21 dbh. In 1994, Forest Plan Whitman National Forest’s Schedule of number of days. Amendment #2 imposed a 21 inch Proposed Actions since July 2008, and Early Notice of Importance of Public diameter limit for green tree harvest. In can be accessed on the Web at: http:// Participation in Subsequent June 2003 the FS Region 6 Regional www.fs.fed.us/sopa/forest- Environmental Review: Forester issued a letter emphasizing the level.php?110616. A scoping letter will A draft environmental impact need for some flexibility in applying be sent out to the Forest scoping mail statement will be prepared for comment this standard. Examples provided where list to correspond with the publication and is expected in May of 2009. The Forest Plan amendments may be of this NOT in the Federal Register. formal comment period on the draft appropriate are listed below. All were Additional information and large-scale environmental impact statement will be incorporated into the Proposed Action color maps will be posted on the Forest 45 days from the date the and include the following: Web site at: http://www.fs.fed.us/r6/ Environmental Protection Agency publishes the notice of availability in 1. Moving multi-layered ponderosa w-w/projects/. Tribal governments, government agencies, organizations and the Federal Register. The Forest Service pine stands towards LOS of a single believes, at this early stage, it is layer where the pine are competing with individuals who have indicated their interest will be contacted during the important to give reviewers notice of grand fir or other shade-tolerant species scoping period. several court rulings related to public historically held in check by wildfire. participation in the environmental 2. Maintaining shade-intolerant Preliminary Issues review process. First, reviewers of draft desirable trees <21 inch d.b.h. where Preliminary issues identified include environmental impact statements must their recruitment into >21 inch class is commercial harvest in LOS stands and structure their participation in the reasonably foreseeable in the near harvest of trees over 21 inches in environmental review of the proposal so future, and when giving preference diameter. Additional issues may include that it is meaningful and alerts an better meets LOS objectives. the potential effect of the proposed agency to the reviewer’s position and action on soils, water quality and fish contentions. Vermont Yankee Nuclear 3. Harvesting >21 inch d.b.h. habitat, snags and down wood, Power Corp. v. NRDC, 435 U.S. 519, 553 mistletoe-infected trees when doing so disturbance to cultural resources, (1978). Also, environmental objections best meets longterm LOS objectives and potential for noxious weed expansion, that could be raised at the draft does not eliminate currently important and threatened, endangered and environmental impact statement stage wildlife habitat. sensitive aquatic, terrestrial and plant but that are not raised until after 4. Fuel reduction to protect older trees species. completion of the final environmental (e.g. removal of smaller ‘‘ladder’’ fuels). No Inventoried Roadless Areas (IRAs) impact statement may be waived or 5. Overstory removal of shade tolerant or potential wilderness areas are dismissed by the courts. City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. species to protect rare or declining affected by this proposed action. 1986) and Wisconsin Heritages, Inc. v. understory elements, such as aspen or Public Comment Harris, 490 F. Supp. 1334, 1338 (E.D. rare herbaceous plants. Public comments about this proposal Wis. 1980). Because of these court Possible Alternatives are requested to identify issues and rulings, it is very important that those alternatives to the proposed action and interested in this proposed action Alternatives will include the to focus the scope of the analysis. participate by the close of the 45-day proposed action, no action, and any Comments received in response to this comment period so that substantive additional alternatives that would solicitation, including names and comments and objections are made respond to any significant issues addresses of those who comment, will available to the Forest Service at a time generated during the scoping process. be considered part of the public record when it can meaningfully consider them The agency will give notice of the full on this proposed action, and will be and respond to them in the final environmental analysis and decision- available for public inspection. environmental impact statement. making process to interested and Comments submitted anonymously will Comments received, including the affected people, agencies, Tribal be accepted and considered; however, names and addresses of those who governments and organizations. those who submit anonymous comment, will be considered part of the

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public record on this proposal and will ADDRESSES: Alice B. Canton, Forest No FEAR Act. See Public Law 107–174, be available for public inspection. Supervisor, Plumas National Forest, 159 codified at 5 U.S.C. 2301 note. As stated (Authority: 40 CFR 1501.7 and 1508.22; Lawrence Street, Quincy, California in the full title of the Act, the Act is Forest Service Handbook 1909.15, Section 95971. intended to ‘‘require that Federal agencies be accountable for violations of 21). FOR FURTHER INFORMATION CONTACT: Judy antidiscrimination and whistleblower Dated: December 3, 2008. Schaber, Assistant Resource Officer, protection laws.’’ In support of this Recreation, 530–836–2575. Steven A. Ellis, purpose, Congress found that ‘‘agencies Forest Supervisor, Wallowa-Whitman SUPPLEMENTARY INFORMATION: The cannot be run effectively if those National Forest. Federal Recreation Lands Enhancement agencies practice or tolerate [FR Doc. E8–29131 Filed 12–11–08; 8:45 am] Act (Title VII, Pub. L. 108–447) directed discrimination.’’ Public Law 107–174, BILLING CODE 3410–11–M the Secretary of Agriculture to publish § 101(1). a six month advance notice in the The Act also requires this agency to Federal Register whenever new provide this notice to its Federal DEPARTMENT OF AGRICULTURE recreation fee areas are established. employees, former Federal employees Once public involvement is complete, and applicants for Federal employment Forest Service these new fees will be reviewed by a to inform you of the rights and Recreation Resource Advisory Notice of Proposed New Fee Sites; protections available to you under Committee prior to a final decision and Federal Lands Recreation Federal antidiscrimination, implementation. Campsites will Enhancement Act, (Title VIII, Pub. L. whistleblower protection, and continue to be available on a first come, 108–447) retaliation laws. first served basis. Antidiscrimination Laws AGENCY: Plumas National Forest, USDA Dated: November 24, 2008. A Federal agency cannot discriminate Forest Service. Alice B. Carlton, against an employee or applicant with ACTION: Notice of Proposed New Fee Forest Supervisor. respect to the terms, conditions or Sites. [FR Doc. E8–29129 Filed 12–11–08; 8:45 am] privileges of employment on the basis of BILLING CODE 3410–11–M SUMMARY: The Plumas National Forest is race, color, national origin, religion, sex, planning to charge new fees at four age, disability, sexual orientation, recreation campgrounds within the parental status or any other non-merit Lakes Basin Recreation Area. All sites AMERICAN BATTLE MONUMENTS factor. Discrimination on these bases is have had amenities added to improve COMMISSION prohibited by one or more of the services and experiences. Fees are following statutes: 5 U.S.C. 2302(b)(1), No Fear Act assessed based on the level of amenities 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. and services provided, cost of operation AGENCY: American Battle Monuments 2000e–16. and maintenance, market assessment, Commission. If you believe that you have been the and public comment. The fees listed are ACTION: Notice. only proposed and will be determined victim of unlawful discrimination on the basis of race, color, religion, sex, upon further analysis and public SUMMARY: The American Battle national origin or disability, you must comment. Funds from fees would be Monuments Commission (ABMC) is contact an Equal Employment used for the continued operation and providing notice to its employees, Opportunity (EEO) counselor within 45 maintenance and improvement of these former employees, and applicants for calendar days of the alleged recreation sites. Gold Lake Campground federal employment about the rights and discriminatory action, or, in the case of (37 sites), Gold Lake 4x4 Campground remedies available to them under the a personnel action, within 45 calendar (16 sites), Goose Lake Campground (13 Federal antidiscrimination, days of the effective date of the action, sites) and Haven Lake Campground (4 whistleblower protection, and before you can file a formal complaint sites), are currently fee free sites. The retaliation laws. This notice fulfills the of discrimination with your agency. See, use at these popular campgrounds is ABMC’s initial notification obligation e.g., 29 CFR part 1614. If you believe historic and the sites are rustic. under the Notification and Federal that you have been the victim of Improvements have been made Employees Antidiscrimination and unlawful discrimination on the basis of including designating 70 campsites, Retaliation Act (No FEAR Act), as age, you must either contact an EEO installing fire rings, and adding garbage implemented by the Office of Personnel counselor as noted above or give notice service. Three new toilets and picnic Management (OPM) regulations at 5 of intent to sue to the Equal tables were installed at the Gold Lake CFR part 724. Employment Opportunity Commission 4x4 campground. One new toilet was FOR FURTHER INFORMATION CONTACT: Visit (EEOC) within 180 calendar days of the installed at Goose Lake Campground. the ABMC Web site at http:// alleged discriminatory action. If you are Improvements will address sanitation www.abmc.gov, or contact Michael alleging discrimination based on marital and safety concerns, and improve Conley, Director, Equal Employment status or political affiliation, you may deteriorating resource conditions and Opportunity (EEO), by mail at American file a written complaint with the U.S. recreation experiences. A financial Battle Monuments Commission, 2300 Office of Special Counsel (OSC) (see analysis is being completed to Clarendon Boulevard, Suite 500, contact information below). In the determine fee rates. The proposed fee to Arlington, VA 22201, or by phone at alternative (or in some cases, in help maintain this site would range (703) 696–5177. addition), you may pursue a between $8 and $10 a campsite and SUPPLEMENTARY INFORMATION: On May discrimination complaint by filing a $3.00 per one additional vehicle per 15, 2002, Congress enacted the grievance through the agency’s campsite. ‘‘Notification and Federal Employee administrative grievance procedures, if DATES: New fees would begin after July Antidiscrimination and Retaliation Act such procedures apply and are 2009. of 2002,’’ which is now known as the available.

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Whistleblower Protection Laws employee or to violate the procedural Arctic Research Commission, 703–525– A Federal employee with authority to rights of a Federal employee who has 0111 or TDD 703–306–0090. been accused of discrimination. take, direct others to take, recommend John Farrell, or approve any personnel action must Additional Information Executive Director. not use that authority to take or fail to [FR Doc. E8–29546 Filed 12–11–08; 8:45 am] For further information regarding the take, or threaten to take or fail to take, BILLING CODE 7555–01–P a personnel action against an employee No FEAR Act regulations, refer to 5 CFR or applicant because of disclosure of part 724, as well as the appropriate information by that individual that is offices within the ABMC (e.g., EEO or Personnel and Administration). BROADCASTING BOARD OF reasonably believed to evidence GOVERNORS violations of law, rule or regulation; Additional information regarding gross mismanagement; gross waste of Federal antidiscrimination, Sunshine Act Meeting funds; an abuse of authority; or a whistleblower protection and retaliation substantial and specific danger to public laws can be found on the EEOC Web site DATE AND TIME: Tuesday, December 9, health or safety, unless disclosure of at http://www.eeoc.gov and on the OSC 2008; 1 p.m.–2:15 p.m. such information is specifically Web site at http://www.osc.gov. PLACE: Cohen Building, Room 3360, 330 prohibited by law and such information Existing Rights Unchanged Independence Ave., SW., Washington, is specifically required by Executive DC 20237. order to be kept secret in the interest of Pursuant to section 205 of the No CLOSED MEETING: The members of the national defense or the conduct of FEAR Act, neither the Act nor this Broadcasting Board of Governors (BBG) foreign affairs. notice creates, expands or reduces any will meet in a special session to review Retaliation against an employee or rights otherwise available to any and discuss budgetary issues relating to applicant for making a protected employee, former employee or applicant U.S. Government-funded non-military disclosure is prohibited by 5 U.S.C. under the laws of the United States, international broadcasting. This meeting 2302(b)(8). If you believe that you have including the provisions of law is closed because if open it likely would been the victim of whistleblower specified in 5 U.S.C. 2302(d). either disclose matters that would be retaliation, you may file a written Theodore Gloukhoff, properly classified to be kept secret in complaint (Form OSC–11) with the U.S. Director, Personnel and Administration. the interest of foreign policy under the Office of Special Counsel, 1730 M appropriate executive order (5 U.S.C. [FR Doc. E8–29405 Filed 12–11–08; 8:45 am] Street, NW., Suite 218, Washington, DC 552b.(c)(1)) or would disclose 20036–4505, or online through the OSC BILLING CODE 6120–01–M information the premature disclosure of Web site at http://www.osc.gov. which would be likely to significantly Retaliation for Engaging in Protected frustrate implementation of a proposed agency action. (5 U.S.C. 552b.(c)(9)(B)) Activity ARCTIC RESEARCH COMMISSION In addition, part of the discussion will A Federal agency cannot retaliate Meeting relate solely to the internal personnel against an employee or applicant and organizational issues of the BBG or because that individual exercised his or Notice is hereby given that the U.S. the International Broadcasting Bureau. her rights under any of the Federal Arctic Research Commission will hold (5 U.S.C. 552b.(c)(2) and (6)) antidiscrimination or whistleblower its 88th meeting in San Francisco, CA CONTACT PERSON FOR MORE INFORMATION: protection laws listed above. If you on Dec 14–19, 2008. The Business Persons interested in obtaining more believe that you are the victim of Session, open to the public, will information should contact Timi retaliation for engaging in protected convene at 9:30 a.m. Tuesday, Dec 16, Nickerson Kenealy at (202) 203–4545. activity, you must follow, as 2008 in San Francisco, CA. An appropriate, the procedures described in Dated: December 9, 2008. Executive Session will follow the Antidiscrimination Laws and Timi Nickerson Kenealy, adjournment of the Business Session. Whistleblower Protection Laws sections Acting Legal Counsel. or, if applicable, the administrative or The Agenda items include: [FR Doc. E8–29551 Filed 12–10–08; 11:15 negotiated grievance procedures in (1) Call to order and approval of the am] order to pursue any legal remedy. Agenda. BILLING CODE 8610–01–P Disciplinary Actions (2) Approval of the Minutes of the 87th Meeting. Under the existing laws, each agency DEPARTMENT OF COMMERCE retains the right, where appropriate, to (3) Commissioners and Staff Reports. discipline a Federal employee for (4) Discussion of USARC Goals and International Trade Administration conduct that is inconsistent with Activities. (A–475–818) Federal antidiscrimination and The focus of the meeting will be whistleblower protection laws up to and reports and updates on programs and Certain Pasta from Italy: Notice of including removal. If OSC has initiated research projects affecting the Arctic. Extension of Final Results of an investigation under 5 U.S.C. 1214, Antidumping Duty Changed Any person planning to attend this however, according to 5 U.S.C. 1214(f), Circumstances Review agencies must seek approval from the meeting who requires special Special Counsel to discipline employees accessibility features and/or auxiliary AGENCY: Import Administration, for, among other activities, engaging in aids, such as sign language interpreters, International Trade Administration, prohibited retaliation. Nothing in the No must inform the Commission in advance Department of Commerce. FEAR Act alters existing laws or permits of those needs. EFFECTIVE DATE: December 12, 2008. an agency to take unfounded Contact Person for More Information: FOR FURTHER INFORMATION CONTACT: Eric disciplinary action against a Federal John Farrell, Executive Director, U.S. B. Greynolds, AD/CVD Operations,

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Office 3, Import Administration, SEC and the Office of the United States Countervailing Duty Administrative International Trade Administration, Attorney for the Western District of Review, 73 FR 45956 (August 7, 2008) U.S. Department of Commerce, Room Missouri. (Preliminary Results). Based on the 4014, 14th Street and Constitution Ave., results of our analysis of the comments Extension of Time Limit for Final received, the Department has revised NW, Washington, DC 20230, telephone: Results (202) 482–6071. the subsidy rates for the respondent, Under 19 CFR 351.216(e), the SUPPLEMENTARY INFORMATION: MTZ Polyfilms, Ltd. (MTZ). The final Department will issue the final results subsidy rate for the reviewed company Background of a CCR within 270 days after the date is listed below in the section entitled on which the Department initiates the On November 19, 2007, the ‘‘Final Results of Review.’’ changed circumstances review. Department of Commerce (the EFFECTIVE DATE: December 12, 2008. Currently, the final results of the AD Department) published its notice of FOR FURTHER INFORMATION CONTACT: Elfi CCR, which cover Lensi, a producer/ initiation of antidumping duty (AD) Blum, AD/CVD Operations, Office 6, exporter of pasta from Italy, and AIPC, changed circumstances review (CCR). Import Administration, International Lensi’s corporate parent and importer of See Certain Pasta from Italy: Notice of Trade Administration, U.S. Department subject merchandise produced by Lensi, Initiation of Antidumping Duty Changed of Commerce, 14th Street and are due by December 5, 2008. As Circumstances Review, 72 FR 65010 Constitution Avenue, NW, Washington, explained above, the Department has DC 20230; telephone: (202) 482–0197. (November 19, 2007). On February 22, placed certain information regarding SUPPLEMENTARY INFORMATION: 2008, the Department published its Lensi on the record of the AD CCR. In notice of preliminary results of AD CCR addition, in their October 17, 2008 Background and intent to reinstate the AD order. See submission, Lensi and AIPC placed new Certain Pasta from Italy: Notice of Since the publication of the factual information and comments on Preliminary Results, the following Preliminary Results of Antidumping the record of the AD CCR. In order to Duty Changed Circumstances Review events have occurred. The Department have sufficient time to review the new issued its fifth supplemental and Intent to Reinstate the Antidumping factual information placed on the record Duty Order, 73 FR 9769 (February 22, questionnaire to the Government of of the AD CCR, we are extending the India (GOI) and to MTZ on August 15, 2008). On August 12, 2008, the due date of the final results of the AD Department extended the due date of 2008. The GOI and MTZ filed their fifth CCR by 17 days in accordance with 19 supplemental responses on August 29, the final results of the AD CCR until CFR 351.302(b). Therefore, the final October 6, 2008. See Certain Pasta from 2008 and on September 9, 2008, results of the AD CCR are now due no respectively. On September 4, 2008, the Italy: Notice of Extension of Final later than December 22, 2008. Results of Antidumping Duty Changed Department extended the briefing This notice is issued and published in schedule to include MTZ’s fifth Circumstances Review, 73 FR 46871 accordance with sections 751(b) and (August 12, 2008). On September 29, supplemental response, and on 777(i) of the Tariff Act of 1930, as September 12, 2008, the Department 2008, the Department placed on the amended. record of the AD CCR press releases extended the deadline for interested from the United States Attorney for the Dated: December 5, 2008. parties to request a hearing. MTZ filed Western District of Missouri and the Gary Taverman, a case brief on September 15, 2008, and Securities and Exchange Commission Acting Deputy Assistant Secretary for the petitioners, Dupont Teijin Films, (SEC) regarding the American Italian Antidumping and Countervailing Duty Mitsubishi Polyester Film of America, Pasta Company (AIPC). See the Operations. and Toray Plastics (America), Inc., filed 1 Memorandum to the File from Eric B. [FR Doc. E8–29490 Filed 12–11–08; 8:45 am] a rebuttal brief on September 22, 2008. Greynolds, Program Manager, ‘‘Press BILLING CODE 3510–DS–S Based on a request by MTZ, a hearing, Release from Office of the United States including a closed session, was held on Attorney for the Western District of October 6, 2008. DEPARTMENT OF COMMERCE Missouri and the Securities and Scope of the Order Exchange Commission Regarding the International Trade Administration For purposes of the order, the American Italian Pasta Company’’ products covered are all gauges of raw, (September 29, 2008), a public (C–533–825) pretreated, or primed Polyethylene document on file in the Central Records Polyethylene Terephthalate Film, Terephthalate Film, Sheet and Strip, Unit (CRU), room 1117 of the main Sheet, and Strip from India: Final whether extruded or coextruded. Department building. On October 8, Results of Countervailing Duty Excluded are metallized films and other 2008, David M. Spooner, the Assistant Administrative Review finished films that have had at least one Secretary for Import Administration, of their surfaces modified by the along with other officials from the AGENCY: Import Administration, application of a performance–enhancing Department met with an official from International Trade Administration, resinous or inorganic layer of more than AIPC and counsel to Lensi/AIPC to Department of Commerce. 0.00001 inches thick. Imports of PET discuss issues pertaining to the ongoing SUMMARY: On August 7, 2008, the film are classifiable in the Harmonized AD CCR. On October 10, 2008, the Department of Commerce (Department) Tariff Schedule of the United States Department extended the due date of published in the Federal Register the (HTSUS) under item number the final results of the AD CCR until preliminary results of administrative December 5, 2008. See Certain Pasta review of the countervailing duty order 1 Certain information referred to in MTZ’s case from Italy: Notice of Extension of Final on polyethylene terephthalate film, brief was untimely. This information was Results of Antidumping Duty Changed sheet, and strip (PET film) from India inadvertently discussed in the hearing. On October Circumstances Review, 73 FR 60239 for the period January 1, 2006 through 15, 2008, MTZ and petitioners re-filed their respective briefs with the information redacted. A (October 10, 2008). On October 17, December 31, 2006. See Polyethylene copy of the official hearing transcript with the 2008, Lensi/AIPC submitted comments Terephthalate Film, Sheet, and Strip information redacted was placed on the record on regarding the press release issued by the from India: Preliminary Results of October 23, 2008.

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3920.62.00.90. HTSUS subheadings are warehouse, for consumption on or after Advanced License Program (ALP) provided for convenience and customs January 1, 2006 through December 31, Comment 7: Countervailability of the purposes. The written description of the 2006, at 65.59 percent ad valorem of the ALP scope of the order is dispositive. entered value. We will also instruct CBP to collect cash deposits of estimated Union Territories Central Sales Tax Analysis of Comments Received countervailing duties, at this rate, on Programs (CST) All issues raised in the case and shipments of the subject merchandise Comment 8: The Benefits Received rebuttal briefs by parties to this by MTZ entered, or withdrawn from Under the Program administrative review are addressed in warehouse, for consumption on or after the Issues and Decision Memorandum the date of publication of these final Comment 9: Adjustments to Cash in the Final Results of the results of review. For all non–reviewed Deposit Rates to Account for Program– Countervailing Duty Administrative companies, the Department has Wide Changes Review of Polyethylene Terephthalate instructed CBP to assess countervailing Comity Film, Sheet, and Strip (PET Film) from duties at the cash deposit rates in effect India, from Stephen J. Claeys, Deputy at the time of entry, for entries between Comment 10: Principle of Comity in the Assistant Secretary to David M. January 1, 2006 and December 31, 2006. EPCGS and ALP Spooner, Assistant Secretary for Import The cash deposit rates for all companies Due Process Administration (December 5, 2008) not covered by this review are not (Issues and Decision Memorandum), changed by the results of this review. Comment 11: Due Process Claims which is hereby adopted by this notice. [FR Doc. E8–29482 Filed 12–11–08; 8:45 am] The Issues and Decision Memorandum Return or Destruction of Proprietary BILLING CODE 3510–DS–S also contains a complete analysis of the Information programs covered by this review and the This notice serves as a reminder to DEPARTMENT OF COMMERCE methodologies used to calculate the parties subject to the administrative subsidy rates. A list of the comments protective order (APO) of their International Trade Administration raised in the briefs and addressed in the responsibility concerning the Issues and Decision Memorandum is disposition of proprietary information C–423–809 appended to this notice. The Issues and disclosed under the APO in accordance Decision Memorandum is on file in the with 19 CFR 351.305(a)(3). Timely Central Records Unit, Room 1117 of the Stainless Steel Plate in Coils from written notification of return or Belgium: Final Results of main Department building, and can be destruction of APO materials or accessed directly on the Web at http:// Countervailing Duty Administrative conversion to judicial protective order is Review ia.ita.doc.gov/frn. hereby requested. Failure to comply Changes Since the Preliminary Results with the regulations and the terms of an AGENCY: Import Administration, APO is a sanctionable violation. Based on our analysis of comments International Trade Administration, received, we have made some We are issuing and publishing these Department of Commerce. adjustments in the methodology that results in accordance with sections SUMMARY: On June 6, 2008, the U.S. was used in the Preliminary Results for 751(a)(1) and 777(i)(1) of the Act. Department of Commerce (‘‘the Department’’) published in the Federal calculating MTZ’s subsidy rates under Dated: December 5, 2008. several programs. All changes are Register its preliminary results of the David M. Spooner, administrative review of the discussed in detail in the Issues and Assistant Secretary for Import Decision Memorandum. countervailing duty order on stainless Administration. steel plate in coils from Belgium for the Final Results of Review Appendix I period January 1, 2006, through December 31, 2006. In accordance with section List of Issues Addressed in the Issues 751(a)(1)(A) of the Tariff Act of 1930, as and Decision Memorandum On November 6, 2008, the Department amended (Act) and 19 CFR issued a post–preliminary interim 351.221(b)(5), we calculated individual Pre–Shipment and Post–Shipment analysis regarding certain additional ad valorem subsidy rates for MTZ, the Export Financing Program information placed on the record of this only producer/exporter subject to administrative review shortly before and Comment 1: MTZ’s Participation in the review for the calendar year 2006, the after the preliminary results were Pre–Shipment and Post–Shipment period of review for this administrative issued. The final results do not Export Financing Program review. effectively differ from the preliminary Benefit Calculation Under the Export results, where we found the net subsidy Manufacturer/Exporter Net Subsidy Promotion Capital Goods Scheme rate to be de minimis. See section below Rate (EPCGS) entitled ‘‘Final Results of Review’’ for further discussion. MTZ Polyfilms Ltd...... 65.59 % Comment 2: Education Cess EFFECTIVE DATE: December 12, 2008. Comment 3: Special Additional Duty Assessment and Cash Deposit FOR FURTHER INFORMATION CONTACT: Instructions Comment 4: Unpaid Import Duty Alicia Winston or David Layton, AD/ Liabilities (Benefit Earned and CVD Operations, Office 1, Import The Department intends to issue Denominator) assessment instructions to U.S. Customs Administration, U.S. Department of and Border Protection (CBP) 15 days Commerce, 14th Street and Constitution after the date of publication of these Comment 5: Partial Fulfillment of Avenue, NW, Washington, DC 20230; final results of review to liquidate Export Obligation telephone: (202) 482–1785 and (202) shipments of subject merchandise by Comment 6: Interest Rate Benchmark for 482–0371, respectively. MTZ entered, or withdrawn from Contingent Liabilities SUPPLEMENTARY INFORMATION:

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Background Prelim Analysis). The Department which the Department implemented in The following events have occurred received case briefs from U&A and the accordance with the Court of since the publication of the preliminary GOB on November 14, 2008. No rebuttal International Trade (CIT) decision in results of this review. See Stainless briefs were filed. The Department did Allegheny Ludlum v. United States, Slip Steel Plate in Coils from Belgium: not conduct a hearing in this review Op. 02–147 (Dec. 12, 2002). See also Preliminary Results of Countervailing because none was requested. Notice of Amended Antidumping Orders; Certain Stainless Steel Plate in Duty Administrative Review, 73 FR Period of Review 32303 (June 6, 2008) (‘‘Preliminary Coils from Belgium, Canada, Italy, the The period of review (‘‘POR’’) for Republic of Korea, South Africa, and Results’’). which we are measuring subsidies is On June 12, 2008, the Department Taiwan, 68 FR 11520 (March 11, 2003) January 1, 2006, through December 31, and Amended CVD Order. extended the briefing and hearing 2006. schedules in order to provide parties Period of Review Scope of the Order with additional time to consider The period for which we are supplemental questionnaire responses The products covered by this order measuring subsidies, i.e., the period of received after the Preliminary Results, are imports of certain stainless steel review (‘‘POR’’), is January 1, 2006, as well as the Department’s post– plate in coils. through December 31, 2006. preliminary analysis. Stainless steel is an alloy steel As noted in the Preliminary Results, containing, by weight, 1.2 percent or Analysis of Comments Received the Government of Belgium (‘‘GOB’’) less of carbon and 10.5 percent or more All issues raised in the case and failed to respond to the Department’s of chromium, with or without other rebuttal briefs by parties to this review April 3, 2008, supplemental elements. The subject plate products are are addressed in the December 3, 2008, questionnaire within the specified flat–rolled products, 254 mm or over in Issues and Decision Memorandum for deadline. The GOB submitted its width and 4.75 mm or more in the Eighth Countervailing Duty response to the Department’s April 3, thickness, in coils, and annealed or Administrative Review of Stainless 2008, supplemental questionnaire, otherwise heat treated and pickled or Steel Plate in Coils from Belgium subsequent to the Preliminary Results, otherwise descaled. The subject plate (‘‘Decision Memorandum’’), from on July 7, 2008. On July 22, 2008, the may also be further processed (e.g., Stephen J. Claeys, Deputy Assistant Department rejected this response as cold–rolled, polished, etc.) provided Secretary for Import Administration, to untimely. However, on August 20, 2008, that it maintains the specified David M. Spooner, Assistant Secretary we informed the GOB that we would dimensions of plate following such for Import Administration, which is grant a final extension for the April 3, processing. Excluded from the scope of hereby adopted by this notice. Attached 2008, supplemental questionnaire this order are the following: (1) plate not to this notice as an appendix is a list of response until September 2, 2008. The in coils, (2) plate that is not annealed or the issues which an interested party has GOB refiled its response to the April 3, otherwise heat treated and pickled or raised and to which we have responded 2008, supplemental questionnaire on otherwise descaled, (3) sheet and strip, in the Decision Memorandum. Parties August 22, 2008. and (4) flat bars. can find a complete discussion of all We sent an additional supplemental The merchandise subject to this order issues raised in this review and the questionnaire to U&A on June 12, 2008, is currently classifiable in the corresponding recommendations in this and received U&A’s response on July 9, Harmonized Tariff Schedule of the public memorandum, which is on file in 2008. On July 22, 2008, the Department United States (‘‘HTSUS’’) at the Department’s Central Records Unit, rejected U&A’s July 9, 2008, response on subheadings: 7219.11.00.30, Room 1117 of the main Department the grounds that it contained untimely 7219.11.00.60, 7219.12.00.05, building (‘‘CRU’’). In addition, a factual information from the GOB. The 7219.12.00.06, 7219.12.00.20, complete version of the Decision Department requested that U&A 7219.12.00.21, 7219.12.00.25, Memorandum can be accessed directly resubmit its supplemental response 7219.12.00.26, 7219.12.00.50, on the Web at http://ia.ita.doc.gov/frn/ without the untimely information. On 7219.12.00.51, 7219.12.00.55, index.html. The paper copy and July 28, 2008, counsel for U&A met with 7219.12.00.56, 7219.12.00.65, electronic version of the Decision Departments officials to discuss this 7219.12.00.66, 7219.12.00.70, Memorandum are identical in content. matter. U&A resubmitted its 7219.12.00.71, 7219.12.00.80, supplemental response on August 15, 7219.12.00.81, 7219.31.00.10, Final Results of Review 2008, and September 8, 2008. 7219.90.00.10, 7219.90.00.20, We adjusted the subsidy rate On September 29, 2008, we extended 7219.90.00.25, 7219.90.00.60, calculation by using the revised sales the time limit for the final results of this 7219.90.00.80, 7220.11.00.00, value reported by U&A. See the administrative review by 60 days (to 7220.20.10.10, 7220.20.10.15, Decision Memorandum and see the December 3, 2008), pursuant to section 7220.20.10.60, 7220.20.10.80, revised rate calculations in the 751(a)(3)(A) of the Tariff Act of 1930, as 7220.20.60.05, 7220.20.60.10, Memorandum to the File, ‘‘2006 Final amended (‘‘the Act’’). See Stainless 7220.20.60.15, 7220.20.60.60, Results Calculation Memorandum for Steel Plate in Coils from Belgium: 7220.20.60.80, 7220.90.00.10, U&A,’’ dated December 3, 2008. In the Extension of Time Limit for the Final 7220.90.00.15, 7220.90.00.60, and Preliminary Results, we calculated a de Results of the Eighth Countervailing 7220.90.00.80. Although the HTSUS minimis rate for U&A, and the rate we Duty Administrative Review, 73 FR subheadings are provided for have calculated in these final results is 56554 (September 29, 2008). convenience and customs purposes, the still de minimis even though we have The Department issued its post– Department’s written description of the revised the sales denominator used in preliminary analysis on November 6, scope of this order remains dispositive. our calculations. For a complete 2008. See Memorandum to David M. This scope language reflects the analysis of the programs found to be Spooner from David Neubacher and March 11, 2003, amendment of the countervailable, and the basis for the Alicia Winston: Post Preliminary antidumping and countervailing duty Department’s determination, see the Findings (November 6, 2008) (Post– orders and suspension of liquidation Decision Memorandum.

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We determine that the total net Dated: December 3, 2008. parties in this sunset review by the countervailing subsidy rate for U&A is David M. Spooner, deadline date. As a result, in accordance 0.20 percent ad valorem for the period Assistant Secretary for Import with 19 CFR 351.218(d)(1)(iii)(A), the January 1, 2006, through December 31, Administration. Department determined that no domestic interested party intends to 2006, which is de minimis pursuant to APPENDIX 19 CFR 351.106(c)(1). The calculations participate in the sunset review, and on will be disclosed to the interested List of Comments and Issues in the November 20, 2008, we notified the Decision Memorandum parties in accordance with 19 CFR International Trade Commission, in 351.224(b). Comment 1: Threshold Requirements writing, that we intended to issue a final Comment 2: Use of Facts Otherwise determination revoking this Assessment Rates Available antidumping duty order. See 19 CFR 351.218(d)(1)(iii)(B)(2). Because the countervailing duty rate Comment 3: SidInvest Benefit Scope of the Order for U&A is de minimis, we will instruct Calculation U.S. Customs and Border Protection The scope of this order covers station (‘‘CBP’’) to liquidate entries for U&A Comment 4: Ongoing Scope Inquiry post insulators manufactured of during the period January 1, 2006, [FR Doc. E8–29528 Filed 12–11–08; 8:45 am] porcelain, of standard strength, high 1 through December 31, 2006, without BILLING CODE 3510–DS–S strength, or extra–high strength, solid regard to countervailing duties in core or cavity core, single unit or accordance with 19 CFR 351.106(c). The stacked unit, assembled or Department will issue appropriate DEPARTMENT OF COMMERCE unassembled, and with or without hardware attached, rated at 115 instructions directly to CBP 15 days International Trade Administration after publication of these final results of kilovolts (kV) voltage class and above (550 kV Basic Impulse Insulation Level this review. A–588–862 and above), including, but not limited Cash Deposits High and Ultra–High Voltage Ceramic to, those manufactured to meet the Station Post Insulators from Japan: following American National Standards Since the countervailable subsidy rate Final Results of Sunset Review and Institute, Inc. standard class for U&A is zero, the Department will Revocation of Order specifications: T.R.-286, T.R.-287, T.R.- instruct CBP to continue to suspend 288, T.R.-289, T.R.-291, T.R.-295, T.R.- liquidation of entries, but to collect no AGENCY: Import Administration, 304, T.R.-308, T.R.-312, T.R.-316, T.R.- cash deposits of estimated International Trade Administration, 362 and T.R.-391. countervailing duties for U&A on all Department of Commerce. Subject merchandise is classifiable SUMMARY: On November 3, 2008, the shipments of the subject merchandise under subheading 8546.20.0060 of the Department of Commerce (Department) that are entered, or withdrawn from Harmonized Tariff Schedule of the initiated the sunset review of the warehouse, for consumption on or after United States (HTSUS). While the antidumping duty order on high and HTSUS subheading is provided for the date of publication of the final ultra–high voltage ceramic station post results of this administrative review. convenience and customs purposes, the insulators from Japan. Because the written description above remains For all non–reviewed firms, we will domestic interested parties did not dispositive as to the scope of this order. instruct CBP to collect cash deposits of participate in this sunset review, the estimated countervailing duties at the Department is revoking this Determination to Revoke most recent company–specific or all– antidumping duty order. Pursuant to section 751(c)(3)(A) of the others rate applicable to the company. EFFECTIVE DATE: December 30, 2008 Tariff Act of 1930, as amended (the Act), These rates shall apply to all non– FOR FURTHER INFORMATION CONTACT: and 19 CFR 351.218(d)(1)(iii)(B)(3), if no reviewed companies until a review of a Elizabeth Eastwood, AD/CVD domestic interested party files a notice company assigned these rates is Operations, Office 2, Import of intent to participate, the Department requested. Administration, International Trade shall, within 90 days after the initiation of the review, issue a final This notice serves as a reminder to Administration, U.S. Department of Commerce, 14th Street & Constitution determination revoking the order. parties subject to administrative Because the domestic interested parties protective order (‘‘APO’’) of their Avenue, NW, Washington, DC 20230; telephone: (202) 482–3874. did not file a notice of intent to responsibility concerning the SUPPLEMENTARY INFORMATION: participate in this sunset review, the disposition of proprietary information Department finds that no domestic disclosed under APO in accordance Background interested party is participating in this with 19 CFR 351.305(a)(3). Timely On December 30, 2003, the sunset review. Therefore, consistent written notification of return or Department issued an antidumping duty with 19 CFR 351.222(i)(1)(i) and section destruction of APO materials or order on high and ultra–high voltage 751(c)(3) of the Act, we are revoking this conversion to judicial protective order is ceramic station post insulators from antidumping duty order. The effective hereby requested. Failure to comply Japan. See Notice of Antidumping Duty date of revocation is December 30, 2008, with the regulations and the terms of an Order: High and Ultra–High Voltage APO is a sanctionable violation. Ceramic Station Post Insulators from 1 Station post insulators are manufactured in various styles and sizes, and are classified primarily We are issuing and publishing these Japan, 68 FR 75211 (Dec. 30, 2003). On according to the voltage they are designed to results in accordance with sections November 3, 2008, the Department withstand. Under the governing industry standard 751(a)(1) and 777(i)(1) of the Act. initiated a sunset review of this order. issued by the Institute of Electrical and Electronic See Initiation of Five-year (‘‘Sunset’’) Engineers, the voltage spectrum is ivided into three broad classes: ‘‘medium’’ voltage (i.e., less than or Review, 73 FR 65292 (Nov. 3, 2008). equal to 69 kilovolts), ‘‘high’’ voltage (i.e., from 115 We did not receive a notice of intent to 230 kilovolts), and ≥extra- high≥ or ‘‘ultra-high’’ to participate from domestic interested voltage (i.e., greater than 230 kilovolts).

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the fifth anniversary of the date the DEPARTMENT OF COMMERCE June 30, 2008. Department published this antidumping The Department has developed, in duty order. See 19 CFR 351.222(i)(2)(i). International Trade Administration consultation with the Secretary of Agriculture, information on subsidies Quarterly Update to Annual Listing of Effective Date of Revocation (as defined in section 702(h) of the Act) Foreign Government Subsidies on being provided either directly or Pursuant to section 751(c)(3)(A) of the Articles of Cheese Subject to an In– indirectly by foreign governments on Act and 19 CFR 351.222(i)(2)(i), the Quota Rate of Duty Department will issue instructions to articles of cheese subject to an in–quota U.S. Customs and Border Protection, 15 AGENCY: Import Administration, rate of duty. days after publication of the notice, to International Trade Administration, The appendix to this notice lists the Department of Commerce. terminate the suspension of liquidation country, the subsidy program or of the merchandise subject to this order EFFECTIVE DATE: December 12, 2008. programs, and the gross and net entered, or withdrawn from warehouse, FOR FURTHER INFORMATION CONTACT: amounts of each subsidy for which information is currently available. The on or after December 30, 2008. Entries Gayle Longest, AD/CVD Operations, Department will incorporate additional of subject merchandise prior to the Office 3, Import Administration, programs which are found to constitute effective date of revocation will International Trade Administration, U.S. Department of Commerce, 14th subsidies, and additional information continue to be subject to suspension of Street and Constitution Ave., NW, on the subsidy programs listed, as the liquidation and antidumping duty Washington, DC 20230, telephone: (202) information is developed. deposit requirements. The Department 482–3338. The Department encourages any will complete any pending SUPPLEMENTARY INFORMATION: Section person having information on foreign administrative reviews of this order and 702 of the Trade Agreements Act of government subsidy programs which will conduct administrative reviews of 1979 (as amended) (‘‘the Act’’) requires benefit articles of cheese subject to an subject merchandise entered prior to the the Department of Commerce (‘‘the in–quota rate of duty to submit such effective date of revocation in response Department’’) to determine, in information in writing to the Assistant to appropriately filed requests for consultation with the Secretary of Secretary for Import Administration, review. Agriculture, whether any foreign U.S. Department of Commerce, 14th This five-year (sunset) review and government is providing a subsidy with Street and Constitution Ave., NW, notice are in accordance with sections respect to any article of cheese subject Washington, DC 20230. 751(c) and 777(i)(1) of the Act. to an in–quota rate of duty, as defined This determination and notice are in in section 702(h) of the Act, and to accordance with section 702(a) of the Dated: December 8, 2008. publish an annual list and quarterly Act. Stephen J. Claeys, updates to the type and amount of those Dated: December 5, 2008. Deputy Assistant Secretary for Antidumping subsidies. We hereby provide the David M. Spooner, and Countervailing Duty Operations. Department’s quarterly update of Assistant Secretary for Import [FR Doc. E8–29487 Filed 12–11–08; 8:45 am] subsidies on articles of cheese that were Administration. BILLING CODE 3510–DS–S imported during the period April 1, 2008 through APPENDIX

SUBSIDY PROGRAMS ON CHEESE SUBJECT TO AN IN–QUOTA RATE OF DUTY

Country Program(s) Gross1 Subsidy ($/lb) Net2 Subsidy ($/lb)

27 EuropeanUnion Member States3 ...... European Union Restitution Payments $ 0.00 $0.00 CanadaExport Assistance on Certain Types of Cheese ...... $ 0.34 $ 0.34 Norway ...... Indirect (Milk) Subsidy $ 0.00 $ 0.00 ...... Consumer Subsidy $ 0.00 $ 0.00 ...... Total $ 0.00 $ 0.00 Switzerland ...... Deficiency Payments $ 0.00 $ 0.00 1 Defined in 19 U.S.C. 1677(5). 2 Defined in 19 U.S.C. 1677(6). 3 The 27 member states of the European Union are: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom.

[FR Doc. E8–29527 Filed 12–11–08; 8:45 am] DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: BILLING CODE 3510–DS–S Gayle Longest, AD/CVD Operations, International Trade Administration Office 3, Import Administration, International Trade Administration, Quarterly Update to Annual Listing of U.S. Department of Commerce, 14th Foreign Government Subsidies on Street and Constitution Ave., NW, Articles of Cheese Subject to an In– Washington, DC 20230, telephone: (202) Quota Rate of Duty 482–3338. AGENCY: Import Administration, SUPPLEMENTARY INFORMATION: Section International Trade Administration, 702 of the Trade Agreements Act of Department of Commerce. 1979 (as amended) (‘‘the Act’’) requires EFFECTIVE DATE: December 12, 2008. the Department of Commerce (‘‘the

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Department’’) to determine, in (as defined in section 702(h) of the Act) benefit articles of cheese subject to an consultation with the Secretary of being provided either directly or in–quota rate of duty to submit such Agriculture, whether any foreign indirectly by foreign governments on information in writing to the Assistant government is providing a subsidy with articles of cheese subject to an in–quota Secretary for Import Administration, respect to any article of cheese subject rate of duty. The appendix to this notice U.S. Department of Commerce, 14th to an in–quota rate of duty, as defined lists the country, the subsidy program or Street and Constitution Ave., NW, in section 702(h) of the Act, and to programs, and the gross and net Washington, DC 20230. publish an annual list and quarterly amounts of each subsidy for which updates to the type and amount of those information is currently available. The This determination and notice are in subsidies. We hereby provide the Department will incorporate additional accordance with section 702(a) of the Department’s quarterly update of programs which are found to constitute Act. subsidies on articles of cheese that were subsidies, and additional information Dated: December 5, 2008. imported during the period July 1, 2008 on the subsidy programs listed, as the David M. Spooner, through September 30, 2008. information is developed. Assistant Secretary for Import The Department has developed, in The Department encourages any Administration. consultation with the Secretary of person having information on foreign Agriculture, information on subsidies government subsidy programs which APPENDIX

SUBSIDY PROGRAMS ON CHEESE SUBJECT TO AN IN–QUOTA RATE OF DUTY

Country Program(s) Gross Subsidy ($/lb) Net Subsidy ($/lb)

27 European Union Member States ...... European Union Restitution Payments $ 0.00 $0.00 Canada ...... Export Assistance on Certain Types of Cheese $ 0.33 $ 0.33 Norway ...... Indirect (Milk) Subsidy $ 0.00 $ 0.00 ...... Consumer Subsidy $ 0.00 $ 0.00 ...... Total $ 0.00 $ 0.00 Switzerland ...... Deficiency Payments $ 0.00 $ 0.00

[FR Doc. E8–29532 Filed 12–11–08; 8:45 am] necessary before a final determination is envelope ‘‘Comments on UMES BILLING CODE 3510–DS–S made to reissue the EFP. Therefore, monkfish EFP, DA8–272.’’ NMFS announces that the Assistant • Fax: (978) 281–9135. Regional Administrator proposes to FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE recommend that an EFP be reissued that Emily Bryant, Fishery Management would allow one commercial fishing Specialist, 978–281–9244. National Oceanic and Atmospheric vessel to conduct fishing operations that Administration SUPPLEMENTARY INFORMATION: An are otherwise restricted by the application for an EFP amendment was RIN 0648–XM08 regulations governing the fisheries of submitted on October 15, 2008, by the Northeastern United States. This Andrea K. Johnson, Ph.D., Research Magnuson–Stevens Act Provisions; EFP, which would continue to enable Assistant Professor at UMES, for a General Provisions for Domestic researchers to study the effects of project funded under the New England Fisheries; Adjustment to Exempted climate on the distribution and catch and Mid–Atlantic Fishery Management Fishing Permit rates of monkfish, would adjust the Councils’ Monkfish Research Set–Aside exemptions from the NE multispecies AGENCY: National Marine Fisheries (RSA) Program. The primary goal of this Service (NMFS), National Oceanic and regulations as follows: Gulf of Maine study is to investigate the influence of Atmospheric Administration (NOAA), (GOM) Rolling Closure Area (RCA) I, temperature on monkfish distribution Commerce. rather than RCA III. The exemption from and abundance, as well as determine NE multispecies effort control measures ACTION: Notice; request for comments. age and growth patterns, spawning will remain the same as with the frequency, feeding rates, and SUMMARY: The Assistant Regional original EFP. Regulations under the cannibalism. This information will Administrator for Sustainable Fisheries, Magnuson–Stevens Fishery provide information on the biology of Northeast Region, NMFS (Assistant Conservation and Management Act monkfish that could be used to enhance Regional Administrator), has made a require publication of this notification the management of this species. preliminary determination that an to provide interested parties the The original EFP granted an amendment to an Exempted Fishing opportunity to comment on applications exemption for one vessel to fish for Permit (EFP) application submitted by for proposed EFPs. monkfish using gillnets inside the GOM the University of Maryland Eastern DATES: Comments must be received on RCA III during May 2008. The vessel Shore (UMES) contains all of the or before December 29, 2008. originally issued the EFP later decided required information and warrants ADDRESSES: You may submit written not to participate in this project and a further consideration. The Assistant comments by any of the following new vessel was issued the EFP on Regional Administrator has made a methods: October 14, 2008. With this change to a preliminary determination that the • Email: DA8–[email protected]. Include new vessel, the research area was adjusted activities authorized under this in the subject line ‘‘Comments on revised to reflect the new vessel owner’s amended EFP would be consistent with Revised UMES Monkfish EFP .’’ familiarity with monkfish fishing the goals and objectives of the Northeast • Mail: Patricia A. Kurkul, Regional grounds. This EFP revision would grant (NE) Multispecies and Monkfish Fishery Administrator, NMFS, NE Regional an exemption for the new vessel to fish Management Plans (FMPs). However, Office, 1 Blackburn Drive, Gloucester, in 30-minute square number 122, rather further review and consultation may be MA 01930. Mark the outside of the than 137, inside the GOM RCA I during

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March 2009. Fishing activity is completeness and readability of the established in 2002 as a tool to help currently taking place through USP. These comments have resulted in Americans answer President Bush’s call December 2008 and researchers would substantial revisions to the document, to service and keep track of their like to continue in March 2009, but will and a second draft is now being volunteer service hours. need this revised exemption to do so. It prepared for release in January 2009 for Copies of the information collection is expected that this location, within the a 45-day public comment period. requests can be obtained by contacting RCA, would provide access to large Another Federal Register Notice will be the office listed in the address section monkfish and would avoid gear published announcing the start of the of this notice. interactions between the research gillnet public comment period and will DATES: Written comments must be gear and trawl gear. The need to switch provide detailed instructions for submitted to the individual and office RCA exemptions is due to the change in accessing the revised document and listed in the ADDRESSES section by location and vessel from the original submitting comments. February 10, 2009. research proposal. Allowing an SUPPLEMENTARY INFORMATION: The CCSP ADDRESSES: You may submit comments, exemption in RCA I rather than RCA III was established by the President in 2002 identified by the title of the information will provide consistency with the rest of to coordinate and integrate scientific collection activity, by any of the the research that is being conducted in research on global change and climate following methods: that area and will avoid further delays change sponsored by 13 participating (1) By Mail sent to: Corporation for in the project. departments and agencies of the U.S. National and Community Service; The applicant may request minor Government. The CCSP is charged with Attention Shannon Maynard, Executive modifications and extensions to the EFP preparing information resources that Director President’s Council on Service throughout the year. EFP modifications promote climate-related discussions and and Civic Participation; 1201 New York and extensions may be granted without decisions, including scientific synthesis Avenue, NW., Washington, DC 20525. further notice if they are deemed and assessment analyses that support (2) By hand delivery or by courier to essential to facilitate completion of the evaluation of important policy issues. the Corporation’s mailroom at Room proposed research and have minimal Dated: December 8, 2008. 8100 at the mail address given in impacts that do not change the scope or paragraph (1) above, between 9 a.m. and William J. Brennan, impact of the initially approved EFP 4 p.m. Monday through Friday, except request. Any fishing activity conducted Acting Under Secretary of Commerce for Federal holidays. outside the scope of the exempted Oceans and Atmosphere, and Director, Climate Change Science Program. (3) By fax to: (202) 606–3460, fishing activity would be prohibited. Attention Shannon Maynard, Executive [FR Doc. E8–29495 Filed 12–11–08; 8:45 am] Authority: 16 U.S.C. 1801 et seq. Director President’s Council on Service BILLING CODE 3510–12–S and Civic Participation. Dated: December 5, 2008. (4) Electronically through the Emily H. Menashes Corporation’s e-mail address system: Acting Director, Office of Sustainable CORPORATION FOR NATIONAL AND [email protected]. Fisheries, National Marine Fisheries Service. COMMUNITY SERVICE [FR Doc. E8–29441 Filed 12–11–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: Shannon Maynard, (202) 606–6713, or BILLING CODE 3510–22–S Proposed Information Collection; Comment Request by e-mail at [email protected]. SUPPLEMENTARY INFORMATION: The DEPARTMENT OF COMMERCE AGENCY: Corporation for National and Corporation is particularly interested in Community Service. comments that: National Oceanic and Atmospheric ACTION: Notice. • Evaluate whether the proposed Administration collection of information is necessary SUMMARY: The Corporation for National RIN 0648–XM13 for the proper performance of the and Community Service (hereinafter the functions of the Corporation, including ‘‘Corporation’’), as part of its continuing U.S. Climate Change Science Program whether the information will have effort to reduce paperwork and Draft Unified Synthesis Product: practical utility; respondent burden, conducts a pre- • Global Climate Change Impacts in the Evaluate the accuracy of the clearance consultation program to United States agency’s estimate of the burden of the provide the general public and Federal proposed collection of information, AGENCY: National Oceanic and agencies with an opportunity to including the validity of the Atmospheric Administration (NOAA), comment on proposed and/or methodology and assumptions used; Department of Commerce. continuing collections of information in • Enhance the quality, utility, and ACTION: Notice of revision of the accordance with the Paperwork clarity of the information to be production schedule for the U.S. Reduction Act of 1995 (PRA95) (44 collected; and Climate Change Science Program U.S.C. 3506(c)(2)(A)). This program • Minimize the burden of the Unified Synthesis Product. helps to ensure that requested data can collection of information on those who be provided in the desired format, are expected to respond, including the SUMMARY: The National Oceanic and reporting burden (time and financial use of appropriate automated, Atmospheric Administration publish resources) is minimized, collection electronic, mechanical, or other this notice to announce plans to add a instruments are clearly understood, and technological collection techniques or second public comment period for the the impact of collection requirement on other forms of information technology U.S. Climate Change Science Program respondents can be properly assessed. (e.g., permitting electronic submissions Unified Synthesis Product (USP). The Currently, the Corporation is of responses). peer review and first public comment soliciting comments concerning the period that ended on August 14, 2008 proposed renewal of its Volunteer Background produced a large number of suggestions Service Hour Tracking Tool (Record of In January of 2002, in his State of the for improvements in the scientific Service). The Record of Service was Union Address, President Bush called

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on all Americans to dedicate 4,000 Dated: December 4, 2008. compensation. The Under Secretary of hours or two years of their lives to Kristin McSwain, Defense (Comptroller)/Chief Financial volunteer service. He created the USA Chief Program Officer. Officer shall select the committee’s Freedom Corps, a coordinating office at [FR Doc. E8–29502 Filed 12–11–08; 8:45 am] chairperson from the committee’s the White House to oversee these efforts BILLING CODE 6050–$$–P membership at large. and to bring increased attention to the The Department of Defense Audit ways in which the Administration could Advisory Committee shall meet at the work together to enhance opportunities DEPARTMENT OF DEFENSE call of the committee’s Designated for all Americans to serve their Federal Officer, in consultation with the neighbors and their nation. Office of the Secretary Chairperson, and the estimated number In support of the President’s call to of committee meetings is four per year. service, the Corporation created an Modification of Federal Advisory The Designated Federal Officer shall be electronic Record of Service to provide Committee Charter a full-time or permanent part-time DoD employee, and shall be appointed in citizens a way to track their service AGENCY: Department of Defense. activities and individually record their accordance with established DoD ACTION: Modification of Federal volunteer service hours. Use of this policies and procedures. The Designated Advisory Committee Charter. tracking tool is 100 percent electronic in Federal Officer or duly appointed that users establish a user ID and SUMMARY: Under the provisions of the Alternate Designated Federal Officer password that automatically creates an Federal Advisory Committee Act of shall attend all committee meetings and account which is only accessible to that 1972 (5 U.S.C. Appendix, as amended), subcommittee meetings. individual user. The Record of Service the Sunshine in the Government Act of The Department of Defense Audit can only be updated by the user who 1976 (5 U.S.C. 552b, as amended), and Advisory Committee shall be authorized established the account. The Record of 41 CFR 102–3.65, the Department of to establish subcommittees, as necessary Service has received heavy public use Defense gives notice that it intends to and consistent with its mission, and and is a primary way for individuals to revise the charter for the Department of these subcommittees or working groups track their eligibility for the President’s Defense Audit Advisory Committee. shall operate under the provisions of the Volunteer Service Award. Specifically, the Department is Federal Advisory Committee Act of 1972, the Sunshine in the Government Individuals may link to this tracking increasing the number of committee Act of 1976, and other appropriate tool through the USA Freedom Corps members from five to seven members. Federal regulations. Web site at http:// This committee will provide the Such subcommittees or workgroups www.usafreedomcorps.gov or the Secretary of Defense, through the Under shall not work independently of the President’s Volunteer Service Award Secretary of Defense (Comptroller)/Chief chartered committee, and shall report Web site at http:// Financial Officer, independent advice all their recommendations and advice to www.presidentialserviceawards.gov. on DoD’s financial management, including the financial reporting the Department of Defense Audit Current Action process, systems of internal controls, Advisory Committee for full deliberation and discussion. The Corporation seeks to renew the audit process and processes for monitoring compliance with applicable Subcommittees or workgroups have no current Record of Service. The Record of authority to make decisions on behalf of Service will be used in the same manner laws and regulations. In accordance with DoD policy and procedures, the the chartered committee nor can they as the existing Record of Service. report directly to the Department of Type of Review: Renewal. Under Secretary of Defense (Comptroller)/Chief Financial Officer is Defense or any Federal officers or Agency: Corporation for National and authorized to act upon the advice employees who are not members of the Community Service. emanating from this advisory Department of Defense Audit Advisory Title: Volunteer Service Hour committee. Committee. Tracking Tool. Members of the Department of FOR FURTHER INFORMATION CONTACT: OMB Number: 3045–0077. Defense Audit Advisory Committee Contact Jim Freeman, Deputy Agency Number: None. shall be eminent authorities in the fields Committee Management Officer for the of financial management and audit. Department of Defense at 703–601– Affected Public: Citizens of the United Committee members appointed by the 6128. States. Secretary of Defense, who are not full- Dated: December 5, 2008. Total Respondents: 100,000. time Federal officers or employees, shall Patricia L. Toppings, Frequency: On occasion. be appointed as experts and consultants OSD Federal Register Liaison Officer, Average Time Per Response: 3 under the authority of 5 U.S.C. 3109, Department of Defense. minutes. and serve as Special Government [FR Doc. E8–29401 Filed 12–11–08; 8:45 am] Employees. Estimated Total Burden Hours: 5,000 BILLING CODE 5001–06–P hours. The Department of Defense Audit Advisory Committee, in keeping with Total Burden Cost (capital/startup): DoD policy to make every effort to DEPARTMENT OF DEFENSE None. achieve a balanced membership, Total Burden Cost (operating/ includes a cross section of experts Office of the Secretary maintenance): None. directly affected, interested, and Comments submitted in response to qualified to advise on financial and [Docket ID: DOD–2008–OS–0153] this notice will be summarized and/or audit matters. Committee members shall Privacy Act of 1974; Systems of included in the request for Office of be appointed on an annual basis by the Records Management and Budget approval of the Secretary of Defense, and with the information collection request; they will exception of travel and per diem for AGENCY: Defense Finance and also become a matter of public record. official travel, shall serve without Accounting Service, DoD.

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ACTION: Notice to add a new system of CATEGORIES OF RECORDS IN THE SYSTEM: SAFEGUARDS: records. Name, Social Security Number (SSN), Records are stored in an office addresses, payroll data, vendor name building protected by guards, controlled SUMMARY: The Defense Finance and and address, accounting, commercial screening, use of visitor registers, Accounting Service (DFAS) is proposing pay, travel and military pay electronic access, and/or locks. Access to add a system of records notice to its disbursement and collection voucher to records is limited to individuals who inventory of record systems subject to data, voucher control logs, voucher are properly screened and cleared on a the Privacy Act of 1974, (5 U.S.C. 552a), numbers, deposit funds data, and end- need to know basis in the performance as amended. of-day reports data. of their duties. Passwords and digital DATES: This action will be effective signatures are used to control access to AUTHORITY FOR MAINTENANCE OF THE SYSTEM: without further notice on January 12, the system data, and procedures are in 2009 unless comments are received that 5 U.S.C. 301, Departmental place to deter and detect browsing and would result in a contrary Regulations; 31 U.S.C. Sections 3325, unauthorized access. Physical and determination. 3511, 3512, 3513; Department of electronic access are limited to persons Defense Financial Management ADDRESSES: Send comments to the responsible for servicing and authorized Regulation (DoDFMR) 7000.14R, Vol. 5, to use the system. FOIA/PA Program Manager, Corporate and E.O. 9397 (SSN). Communications and Legislative RETENTION AND DISPOSAL: Liaison, Defense Finance and PURPOSE(S): Records are cut off at the end of the Accounting Service, 8899 E. 56th Street, Used as a centralized repository that month and destroyed 6 years and 3 Indianapolis, IN 46249–0150. receives and stores accounting, months after cutoff. Records are FOR FURTHER INFORMATION CONTACT: Ms. commercial pay, travel, and military pay destroyed by degaussing, burning, and Linda Krabbenhoft at (303) 589–3510. disbursement and collection voucher shredding. SUPPLEMENTARY INFORMATION: data. It will produce voucher control The SYSTEM MANAGER(S) AND ADDRESS: Defense Finance and Accounting logs and management reports, such as Voucher Processing System (VPS) Service notices for systems of records end-of-day report used by management Program Manager, Defense Finance and subject to the Privacy Act of 1974 (5 to monitor disbursements and Accounting Service, Information and U.S.C. 552a), as amended, have been collections. Technology Services, 1931 S. Bell published in the Federal Register and ROUTINE USES OF RECORDS MAINTAINED IN THE Street, Arlington, VA 22240–0001. are available from the address above. SYSTEM, INCLUDING CATEGORIES OF USERS AND The proposed system report, as THE PURPOSES OF SUCH USES: NOTIFICATION PROCEDURE: required by 5 U.S.C. 552a(r) of the In addition to those disclosures Individuals seeking to determine Privacy Act of 1974, as amended, was generally permitted under 5 U.S.C. whether information about them is submitted on December 4, 2008, to the 552a(b) of the Privacy Act, these records contained in this record system should House Committee on Government or information contained therein may address written inquiries to the Defense Reform, the Senate Committee on specifically be disclosed outside the Finance and Accounting Service, Governmental Affairs, and the Office of DoD as a routine use pursuant to 5 Freedom of Information/Privacy Act Management and Budget (OMB) U.S.C. 552a(b)(3) as follows: Program Manager, Corporate pursuant to paragraph 4c of Appendix I To the Internal Revenue Service to Communications and Legislative to OMB Circular No. A–130, ‘‘Federal report taxable earnings and taxes Liaison, 8899 E. 56th Street, Agency Responsibilities for Maintaining withheld, accounting, and tax audits, Indianapolis, IN 46249–0150. Records about Individuals’’, dated and to compute or resolve tax liability Individuals should furnish full name, December 12, 2000, 65 FR 239. or tax levies. Social Security Number (SSN), current Dated: December 8, 2008. To the Social Security Administration address, and telephone number. to report earned wages by members for Morgan E. Frazier, the Federal Insurance Contribution Act, RECORD ACCESS PROCEDURES: Alternate OSD Federal Register Liaison accounting or tax audits, and death Individuals seeking access to Officer, Department of Defense. notices. information about them contained in T–7300a To Federal Reserve banks to distribute this system should address written payments made through the direct inquiries to Defense Finance and SYSTEM NAME: deposit system to financial Accounting Service, Freedom of Voucher Processing System (VPS). organizations or their processing agents Information/Privacy Act Program authorized by individuals to receive and Manager, Corporate Communications SYSTEM LOCATION: deposit payments in their accounts. and Legislative Liaison, 8899 E. 56th Document Automation and The DoD ‘‘Blanket Routine Uses’’ Street, Indianapolis, IN 46249–0150. Production Services (DAPS), 5450 published at the beginning of the DFAS Individuals should furnish full name, Carlisle Pike, Building 410, compilation of systems of records Social Security Number (SSN), current Mechanicsburg, PA 17050–2411. notices also apply to this system. address, and telephone number. Document Automation and Production Services (DAPS), 8000 POLICIES AND PRACTICES FOR STORING, CONTESTING RECORD PROCEDURES: Jefferson Davis Highway, Richmond, RETRIEVING, ACCESSING, RETAINING, AND The DFAS rules for accessing records, DISPOSING OF RECORDS IN THE SYSTEM: Virginia 23237–4480. for contesting contents and appealing STORAGE: initial agency determinations are CATEGORIES OF INDIVIDUALS COVERED BY THE Electronic storage media and paper published in DFAS Regulation SYSTEM: records. 5400.11–R; 32 CFR part 324; or may be Active duty, Reserve and National obtained from Defense Finance and Guard, Army, Navy, Air Force, and RETRIEVABILITY: Accounting Service, Freedom of Marine Corps military members, DoD Name and Social Security Number Information/Privacy Act Program civilians, vendors and private citizens. (SSN). Manager, Corporate Communications

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and Legislative Liaison, 8899 E. 56th Dated: December 8, 2008. garnishment orders, interrogatories, Street, Indianapolis, IN 46249–0150. Morgan E. Frazier, correspondence between DFAS Office of Alternate OSD Federal Register Liaison General Counsel and parties to the case, RECORD SOURCE CATEGORIES: Officer, Department of Defense. DFAS pay units, United States Individuals concerned, Department of Attorneys, United States District Courts Defense Components, such as Army, T7300c and other State and Government Navy, Air Force, and Marine Corps. SYSTEM NAME: agencies relevant to the processing of child support and commercial debt EXEMPTIONS CLAIMED FOR THE SYSTEM: Corporate Electronic Document Management System (CEDMS). garnishment, applications under the None. Uniformed Services Former Spouses’ [FR Doc. E8–29381 Filed 12–11–08; 8:45 am] SYSTEM LOCATION: Protection Act and applications for BILLING CODE 5001–06–P Document Automation and military involuntary allotments for Production Services (DAPS), 5450 commercial debt. Also bankruptcy Carlisle Pike, Building 410, trustee information for those who DEPARTMENT OF DEFENSE Mechanicsburg, PA 17050–2411. receive payments pursuant to Chapter Document Automation and 13 of the Bankruptcy Code. Office of the Secretary Production Services (DAPS), 8000 Individual’s pay and leave records; Jefferson Davis Highway, Richmond, VA source documents for posting of time [Docket ID: DOD–2008–OS–0154] 23237–4480. and leave attendance; individual Defense Finance and Accounting retirement deduction records, source Privacy Act of 1974; Systems of Service, 1931 S. Bell Street, Arlington, documents, and control files; wage and Records VA 22240–0001. separation information files; health Defense Finance and Accounting benefit records; income tax withholding AGENCY: Defense Finance and Service, 8899 E. 56th Street, records; allowance and differential Accounting Service, DoD. Indianapolis, IN 46249–6700. eligibility files, such as, but not limited ACTION: Notice to add a new system of Defense Finance and Accounting to clothing allowances and night rate records. Service, 3990 East Broad Street, differentials; withholding and Columbus, OH 43213–2317. deduction authorization files, such as, SUMMARY: The Defense Finance and Defense Finance and Accounting but not limited to federal income tax Accounting Service (DFAS) is proposing Service, 1240 E. Ninth Street, Cleveland, withholding, insurance and retirement to add a system of records notice to its OH 44199–2055. deductions; accounting documents files, inventory of record systems subject to Defense Finance and Accounting input data posting media, including the Privacy Act of 1974, (5 U.S.C. 552a), Service, 325 Brooks Road, Rome, NY personnel actions affecting pay; as amended. 13441–4527. accounting and statistical reports and Defense Finance and Accounting DATES: This action will be effective computer edit listings; claims and Service, 27 Arkansas Road, Limestone, without further notice on January 12, waivers affecting pay; control logs and ME 04751–6216. 2009 unless comments are received that collection/disbursement vouchers; would result in a contrary CATEGORIES OF INDIVIDUALS COVERED BY THE listings for administrative purposes, determination. SYSTEM: such as, but not limited to health ADDRESSES: Send comments to the Active duty, Reserve, National Guard, insurance, life insurance, bonds, locator FOIA/PA Program Manager, Corporate retired and separated Army, Air Force, files, and checks to financial Communications and Legislative Navy and Marine Corps, military institutions; correspondence with the Liaison, Defense Finance and members and their dependents. civilian personnel office, dependents, Accounting Service, 8899 E. 56th Street, Department of Defense civilian attorneys, survivors, insurance Indianapolis, IN 46249–0150. employees and other civilian employees companies, financial institutions, and other governmental agencies; leave and FOR FURTHER INFORMATION CONTACT: Ms. who are paid by the Defense Finance earnings statements; separation Linda Krabbenhoft at (303) 589–3510. and Accounting Service consolidated civilian payroll offices such as, documents; official correspondence; SUPPLEMENTARY INFORMATION: The Department of Energy, Department of federal, state, and city tax reports, forms Defense Finance and Accounting Veterans Affairs, Environmental covering pay changes and deductions; Service systems of records notices Protection Agency, Health and Human and documentation pertaining to subject to the Privacy Act of 1974 (5 Services, Broadcasting Board of garnishment of wages. U.S.C. 552a), as amended, have been Governors and Executive Office of the Individual’s name, pay grade, Social published in the Federal Register and President. Non-government civilians Security Number (SSN), date of birth, are available from the address above. who have been issued invitational travel gender, pay dates, leave account The proposed system report, as orders. information, rank, enlistment contract required by 5 U.S.C. 552a(r) of the or officer acceptance form Privacy Act of 1974, as amended, was CATEGORIES OF RECORDS IN THE SYSTEM: identification, duty information (duty submitted on December 4, 2008, to the The following areas within the station, personnel assignment, and House Committee on Government Defense Finance and Accounting unit), security investigation, combat Reform, the Senate Committee on Service will utilize the Corporate tours, temporary active duty data, years Homeland Security and Governmental Electronic Document Management in service, promotional data, master Affairs, and the Office of Management System (CEDMS) for storage of source military pay account (MMPA) records, and Budget (OMB) pursuant to documents: garnishments, military pay, leave and earnings statements (LESs), paragraph 4c of Appendix I to OMB debt and claims, allotments, travel, and substantiating pay and allowance Circular No. A–130, ‘‘Federal Agency the source documents may include the entitlements, deductions, or collection Responsibilities for Maintaining following documents: actions. Records About Individuals’’, dated Individual state court wage Pay entitlements and allowances: December 12, 2000, 65 FR 239. withholding notices or court order Base pay, allowances (such as basic

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allowance for subsistence, basic PURPOSE(S): RETRIEVABILITY: allowance for quarters, family To accommodate the administrative Name and Social Security Number separation, clothing maintenance and requirements to include document (SSN). monetary allowances), special management, recordkeeping, record compensation for positions such as retrieval, record staging, and document SAFEGUARDS: medical, dental, veterinary, and security for scanning, indexing and Records are stored in an office optometry, special pay and bonus, such managing various types of DFAS hard building protected by guards, controlled as foreign duty, proficiency, hostile fire, copy source documents to include screening, use of visitor registers, incentive pay such as parachute duty, garnishments, military pay, debts and electronic access, and/or locks. Access and other entitlements in accordance claims, allotments, and travel. to records is limited to individuals who with the DoD Financial Management are properly screened and cleared on a Regulations, Volume 7A, 7000.14–R. ROUTINE USES OF RECORDS MAINTAINED IN THE need to know basis in the performance Deductions from pay: Indebtedness and SYSTEM, INCLUDING CATEGORIES OF USERS AND of their duties. Passwords and digital collection information. THE PURPOSES OF SUCH USES: signatures are used to control access to Duty Status: Status adjustments In addition to those disclosures the system data, and procedures are in relating to leave, entrance on active generally permitted under 5 U.S.C. place to deter and detect browsing and duty, absent without leave, 552a(b) of the Privacy Act, these records unauthorized access. Physical and confinement, desertion, sick or injured, or information contained therein may electronic access are limited to persons mentally incompetent, missing, specifically be disclosed outside the responsible for servicing and authorized interned, promotions and demotions, DoD as a routine use pursuant to 5 to use the system. and separation document code. U.S.C. 552a(b)(3) as follows: Supporting Documentation: Includes, To the Social Security Administration RETENTION AND DISPOSAL: but is not limited to, travel orders and and Office of Personnel Management to Hard copy source records are cut off requests; payroll attendance lists and credit the employee’s account for when information has been converted to rosters; document records establishing, Federal Insurance Contributions Act or electronic medium and verified, or supporting, reducing, or canceling Civil Service Retirement withheld; when no longer needed to support the entitlement; certificates and statements To the National Finance Center, reconstruction of, or serve as the backup changing address, name, military Office of Thrift Savings Plan for to the master file, whichever is later. assignment, and other individual data participating employees; Hardcopy records are destroyed by necessary to identify and provide To any agency or component thereof, burning, or shredding. Electronic accurate and timely military pay and that needs the information for proper records are destroyed by degaussing. performance credit; allotment start, accounting of funds, such as, but not SYSTEM MANAGER(S) AND ADDRESS: stop, or change records; declarations of limited to the Office of Personnel benefits and waivers; military pay and Management to assist in resolving Corporate Electronic Document personnel orders; medical certifications complaints, grievances, etc., and to Management System Program Manager, and determinations; death and disability compute Civil Service Retirement Defense Finance and Accounting documents; check issuing and annuity; Service, Information and Technology cancellation records and schedules; To the Department of Energy for Services, 1931 S. Bell Street, Arlington, payroll vouchers; money lists and payroll, debt, claims, or garnishment VA 22240–0001. accounting records; pay adjustment inquires for those employees paid by NOTIFICATION PROCEDURES: authorization records; system input DFAS. certifications; member indebtedness and Individuals seeking to determine To the Department of Veterans Affairs whether information about themselves tax levy documentation; earnings for payroll, debt, claims, or garnishment statements; employees’ wage and tax is contained in this system of records inquiries for those employees paid by should address written inquiries to the reports and statements; casual payment DFAS. authorization and control logs; and Defense Finance and Accounting To Health and Human Services for other documentation authorizing or Service, Freedom of Information/ payroll, debt, claims, or garnishment substantiating Active and Reserve/ Privacy Act Program Manager, inquiries for those employees paid by Guard Component military pay and Corporate communications and DFAS. allowances, entitlement, deductions, or Legislative Liaison, 8899 56th Street, To the Environmental Protection collections. Also inquiry files, sundry Indianapolis, IN 46249–0150. Agency for payroll, debt, claims, or lists, reports, letters, correspondence, Requests should contain individual’s garnishment inquiries for those and rosters including, but not limited to, name, Social Security Number (SSN), employees paid by DFAS. Congressional inquiries, Internal current address, and telephone number. To the Broadcasting Board of Revenue Service notices and reports, Governors for payroll, debt, claims, or RECORD ACCESS PROCEDURES: state tax and insurance reports, Social garnishment inquiries for those Security Administration reports, Individuals seeking to determine employees paid by DFAS. Department of Veterans Affairs reports, whether information about themselves To the Executive Office of the inter-DoD requests, Treasury is contained in this system of records President for payroll, debt, or Department reports, and health should address written inquiries to the garnishment inquiries for those education and institution inquiries. Defense Finance and Accounting employees paid by DFAS. Service, Freedom of Information/ AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Privacy Act Program Manager, POLICIES AND PRACTICES FOR STORING, 5 U.S.C. 301, Departmental Corporate Communications and RETRIEVING, ACCESSING, RETAINING, AND Regulations; 31 U.S.C. Sections 3325, DISPOSING OF RECORDS IN THE SYSTEM: Legislative Liaison, 8899 E. 56th Street, 3511, 3512, 3513; Department of Indianapolis, IN 46249–0150. Defense Financial Management STORAGE: Requests should contain individual’s Regulation (DoDFMR) 7000.14R, and Paper records and on electronic name, Social Security Number (SSN), E.O. 9397 (SSN). storage media. current address, and telephone number.

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CONTESTING RECORD PROCEDURES: published in the Federal Register and number and pay and leave records; The DFAS rules for accessing records, are available from the address above. source documents for posting of time for contesting contents and appealing The proposed system report, as and leave attendance; individual initial agency determinations are required by 5 U.S.C. 552a(r) of the retirement deduction records, source published in DFAS Regulation Privacy Act of 1974, as amended, was documents, and control files; wage and 5400.11–R; 32 CFR part 324; or may be submitted on December 4, 2008, to the separation information files; health obtained from Defense Finance and House Committee on Government benefit records; income tax withholding Accounting Service, Freedom of Reform, the Senate Committee on records; allowance and differential Information/Privacy Act Program Homeland Security and Governmental eligibility files, such as, but not limited Manager, Corporate Communications Affairs, and the Office of Management to clothing allowances and night rate and Legislative Liaison, 8899 E. 56th St., and Budget (OMB) pursuant to differentials; withholding and Indianapolis, IN 46249–0150. paragraph 4c of Appendix I to OMB deduction authorization files, such as, Circular No. A–130, ‘Federal Agency but not limited to federal income tax RECORD SOURCE CATEGORIES: Responsibilities for Maintaining withholding, insurance and retirement From the individual, DoD Records About Individuals,’ dated deductions; accounting documents files, Components such as, Army, Navy, Air December 12, 2000, 65 FR 239. input data posting media, including Force and Marine Corps, Office of Dated: December 8, 2008. personnel actions affecting pay; Personnel Management, and other accounting and statistical reports and Morgan E. Frazier, government agencies whose civilian computer edit listings; claims and employees are paid by the Defense Alternate OSD Federal Register Liaison waivers affecting pay; control logs and Finance and Accounting Service such as Officer, Department of Defense. collection/disbursement vouchers; the Department of Energy, Department T7335 listings for administrative purposes, of Veterans Affairs, Health and Human such as, but not limited to health Services, Environmental Protection SYSTEM NAME: insurance, life insurance, bonds, locator Agency. Defense Civilian Pay System (DCPS) files, and checks to financial (September 19, 2005, 70 FR 54902). institutions; correspondence with the EXEMPTIONS CLAIMED FOR THE SYSTEM: civilian personnel office, system access CHANGES: None. request forms, dependents, attorneys, * * * * * [FR Doc. E8–29383 Filed 12–11–08; 8:45 am] survivors, insurance companies, BILLING CODE 5001–06–P SYSTEM LOCATION: financial institutions, and other Delete entry and replace with governmental agencies; leave and ‘‘Defense Finance and Accounting earnings statements; separation DEPARTMENT OF DEFENSE Service, Civilian Pay Payroll Office, documents; official correspondence; 8899 E. 56th St., Indianapolis, IN federal, state, and city tax reports and Office of the Secretary 46249–0002. tapes; forms covering pay changes and [Docket ID: DOD–2008–OS–0150] Defense Finance and Accounting deductions; and documentation Service, Civilian Pay Payroll Office, pertaining to garnishment of wages.’’ Privacy Act of 1974; Systems of 1240 E 9th St., Cleveland, OH 44199– * * * * * Records 2055. PURPOSE(S): Defense Finance and Accounting AGENCY: Defense Finance and Delete and replace with ‘‘The records Service Pensacola, 250 Raby Avenue, Accounting Service, DoD. are used to accurately compute Building 801, Pensacola, FL 32509– individual employees pay entitlements, ACTION: Notice to Alter an Existing 5128. withhold required and authorized System of Records. Defense Information Systems Agency, deductions, and issue payments for Defense Enterprise Computing Center SUMMARY: The Defense Finance and amounts due. Output products are (DISA/DECC), 5450 Carlisle Pike, Accounting Service (DFAS) is proposing forwarded as required to the subject Building 309, Mechanicsburg, PA to alter a system of records notice matter areas to ensure accurate 17055–0975.’’ subject to the Privacy Act of 1974, (5 accounting and recording of pay to U.S.C. 552a), as amended. CATEGORIES OF INDIVIDUALS COVERED BY THE civilian employees. DATES: This Action will be effective SYSTEM: These records and related products without further notice on January 12, Delete entry and replace with ‘‘All are also used to verify and balance all 2009 unless comments are received that DoD civilian employees paid by payments, deductions, and would result in a contrary appropriated funds and employees of contributions with the DD Form 592 determination. the Executive Office of the President (Payroll for Personal Services Certification and Summary) in the ADDRESSES: and non-DoD agencies to include Send comments to the DFAS civilian pay office and other FOIA/PA Program Manager, Corporate Department of Energy, Department of Health and Human Services, Broadcast applicable subject matter areas, and to Communications and Legislative report this information to the recipients Liaison, Defense Finance and Board of Governors, Department of Veteran’s Affairs and the Environmental and other government and Accounting Service, 8899 E. 56th St., nongovernment agencies. Indianapolis, IN 46249–0150. Protection Agency who are paid by the Defense Finance and Accounting Records and system access request FOR FURTHER INFORMATION CONTACT: Ms. Service’s consolidated civilian payroll forms are also used for records input/ Linda Krabbenhoft at (303) 589–3510. offices.’’ modifications, and extraction or SUPPLEMENTARY INFORMATION: The compilation of data and reports for Defense Finance and Accounting CATEGORIES OF RECORDS IN THE SYSTEM: management studies and statistical Service systems of records notices Delete entry and replace with analyses for use internally or externally subject to the Privacy Act of 1974 (5 ‘‘Individual’s full name, Social Security as required by DoD or other government U.S.C. 552a), as amended, have been Number (SSN), address, telephone agencies.

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All records in this system are subject Information/Privacy Act Program the Executive Office of the President to use in authorized computer matching Manager, Corporate Communication and and non-DoD agencies to include programs within the Department of Legislative Liaison, 8889 E. 56th Street, Department of Energy, Department of Defense and with other Federal agencies Indianapolis, IN 46249–0150. Health and Human Services, Broadcast or non-Federal agencies as regulated by Individuals should provide full name, Board of Governors, Department of the Privacy Act of 1974, as amended, (5 Social Security Number (SSN), or other Veteran’s Affairs and the Environmental U.S.C. 552a).’’ information verifiable from the record Protection Agency who are paid by the * * * * * itself.’’ Defense Finance and Accounting CONTESTING RECORD PROCEDURES: Service’s consolidated civilian payroll STORAGE: offices. Delete entry and replace with ‘‘The Delete entry and replace with ‘‘Paper DFAS rules for accessing records, for CATEGORIES OF RECORDS IN THE SYSTEM records and on electronic storage : contesting contents and appealing media.’’ Individual’s full name, Social initial agency determinations are Security Number, address, telephone RETRIEVABILITY: published in DFAS Regulation 5400.11– number and pay and leave records; Delete entry and replace with R; 32 CFR part 324; or may be obtained source documents for posting of time ‘‘Retrieved by name and/or Social from the Freedom of Information/ and leave attendance; individual Security Number (SSN).’’ Privacy Act Program Manager, retirement deduction records, source Corporate Communications and documents, and control files; wage and SAFEGUARDS: Legislative Liaison, 8889 E. 56th Street, separation information files; health Delete entry and replace with Indianapolis, IN 46249–0150.’’ benefit records; income tax withholding ‘‘Records are stored in an office building RECORD SOURCE CATEGORIES: records; allowance and differential protected by guards, controlled Delete entry and replace with eligibility files, such as, but not limited screening, use of visitor registers, ‘‘Information is obtained from the to clothing allowances and night rate electronic access, and/or locks. Access individual, previous employers, differentials; withholding and to records is limited to individuals who financial institutions, medical deduction authorization files, such as, are properly screened and cleared on a institutions, automated systems but not limited to federal income tax need to know basis in the performance interfaces, state or local governments, withholding, insurance and retirement of their duties. Passwords and digital and from other DoD components and deductions; accounting documents files, signatures are used to control access to other Federal agencies such as, but not input data posting media, including the system data, and procedures are in limited to, Social Security personnel actions affecting pay; place to deter and detect browsing and Administration, Internal Revenue accounting and statistical reports and unauthorized access. Physical and Service, state revenue departments, computer edit listings; claims and electronic access are limited to persons State Department, and Department of waivers affecting pay; control logs and responsible for servicing and authorized Defense components (including the collection/disbursement vouchers; to use the system.’’ Department of the Air Force, Army, or listings for administrative purposes, * * * * * Navy, or Defense agencies); such as, but not limited to health correspondence with attorneys, insurance, life insurance, bonds, locator SYSTEM MANAGER(S) AND ADDRESS: dependents, survivors, or guardians may files, and checks to financial Delete entry and replace with also furnish data for the system.’’ institutions; correspondence with the ‘‘Program Manager, Defense Finance * * * * * civilian personnel office, system access and Accounting Service—Headquarters, request forms, dependents, attorneys, ATTN: DFAS–HTSBA, 250 Raby T7335 survivors, insurance companies, Avenue, Building 801, Pensacola, FL financial institutions, and other SYSTEM NAME: 32509–5128.’’ governmental agencies; leave and Defense Civilian Pay System (DCPS). earnings statements; separation NOTIFICATION PROCEDURE: SYSTEM LOCATION: documents; official correspondence; Delete entry and replace with Defense Finance and Accounting federal, state, and city tax reports and ‘‘Individuals seeking to determine Service, Civilian Pay Payroll Office, tapes; forms covering pay changes and whether information about themselves 8899 E. 56th St., Indianapolis, IN deductions; and documentation is contained in this system of records 46249–0002. pertaining to garnishment of wages. should address written inquires to the Defense Finance and Accounting AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Defense Finance and Accounting Service, Civilian Pay Payroll Office, Services, Freedom of Information/ 1240 E 9th St., Cleveland, OH 44199– 5 U.S.C. 301, Departmental Privacy Act Program Manager, 2055. Regulations; 5 U.S.C. Chapter 53, 55, Corporate Communication and Defense Finance and Accounting and 81; and E.O. 9397 (SSN). Legislative Liaison, 8889 E. 56th Street, Service Pensacola, 250 Raby Avenue, PURPOSE(S): Indianapolis, IN 46249–0150. Building 801, Pensacola, FL 32509– The records are used to accurately Individual should furnish full name, 5128. compute individual employees pay Social Security Number (SSN), current Defense Information Systems Agency, entitlements, withhold required and address, and telephone number.’’ Defense Enterprise Computing Center authorized deductions, and issue (DISA/DECC), 5450 Carlisle Pike, RECORD ACCESS PROCEDURES: payments for amounts due. Output Building 309, Mechanicsburg, PA Delete entry and replace with products are forwarded as required to 17055–0975. ‘‘Individuals seeking access to the subject matter areas to ensure information about themselves contained CATEGORIES OF INDIVIDUALS COVERED BY THE accurate accounting and recording of in this system of records should address SYSTEM: pay to civilian employees. written inquiries to the Defense Finance All DoD civilian employees paid by These records and related products and Accounting Services, Freedom of appropriated funds and employees of are also used to verify and balance all

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payments, deductions, and eligibility for unemployment are properly screened and cleared on a contributions with the DD Form 592 compensation benefits of former need to know basis in the performance (Payroll for Personal Services employees; of their duties. Passwords and digital Certification and Summary) in the To city revenue departments of signatures are used to control access to DFAS civilian pay office and other appropriate cities to credit employees the system data, and procedures are in applicable subject matter areas, and to for city tax withheld; place to deter and detect browsing and report this information to the recipients To any agency or component thereof unauthorized access. Physical and and other government and non- that needs the information for proper electronic access are limited to persons government agencies. accounting of funds, such as, but not responsible for servicing and authorized Records and system access request limited to the Office of Personnel to use the system. forms are also used for record input/ Management to assist in resolving RETENTION AND DISPOSAL: modifications, and extraction or complaints, grievances, etc. and to compilation of data and reports for compute Civil Service Retirement Records may be temporary in nature management studies and statistical annuity. and destroyed when actions are analyses for use internally or externally To Federal, State, and local agencies completed, they are superseded, as required by DoD or other government for the purpose of conducting computer obsolete, or no longer needed. Other agencies. matching programs as regulated by the records may be cut off at the end of the All records in this system are subject Privacy Act of 1974, as amended (5 payroll year and destroyed up to 6 years to use in authorized computer matching U.S.C. 552a). after cutoff or cutoff at the end of the programs within the Department of The ‘Blanket Routine Uses’ published payroll year and then sent to the Defense and with other Federal agencies at the beginning of the DFAS National Personnel Records Center after or non-Federal agencies as regulated by compilation of systems of records 3 payroll years where they are retained the Privacy Act of 1974, as amended, (5 notices also apply to this system. for 56 years. Individual retirement U.S.C. 552a). records are cut off upon separation, DISCLOSURE TO CONSUMER REPORTING transfer, retirement or death, and ROUTINE USES OF RECORDS MAINTAINED IN THE AGENCIES: forwarded to the Office of Personnel SYSTEM, INCLUDING CATEGORIES OF USERS AND Disclosures pursuant to 5 U.S.C. Management. THE PURPOSES OF SUCH USES: 552a(b)(12) may be made from this SYSTEM MANAGER(S) AND ADDRESS: In addition to those disclosures system to ‘consumer reporting agencies’ generally permitted under 5 U.S.C. as defined in the Fair Credit Reporting Program Manager, Defense Finance 552a(b) of the Privacy Act, these records Act (15 U.S.C. 1681a(f)) or the Federal and Accounting Service, ATTN: DFAS– or information contained therein may Claims Collection Act of 1966 (31 U.S.C. HTSBA, 250 Raby Avenue, Building specifically be disclosed outside the 3701(a)(3) ). The purpose of this 801, Pensacola, FL 32509–5128. DoD as a routine use pursuant to 5 disclosure is to aid in the collection of NOTIFICATION PROCEDURE: U.S.C. 552a(b)(3) as follows: outstanding debts owed to the Federal Individuals seeking to determine To Federal Reserve Banks under government; typically to provide an whether information about themselves procedures specified in 31 CFR part 210 incentive for debtors to repay is contained in this system of records for health benefit carriers to ensure delinquent Federal government debts by should address written inquiries to the proper credit for employee-authorized making these debts part of their credit Defense Finance and Accounting health benefit deductions; records. To officials of labor organizations Service, Freedom of Information/ The disclosure is limited to Privacy Act Program Manager, recognized under E.O. 11491 and E.O. information necessary to establish the 11636, as amended, when relevant and Corporate Communications and identity of the individual, including Legislative Liaison, 8899 E. 56th Street, necessary to their duties of exclusive name, address, and taxpayer representation concerning personnel Indianapolis, IN 46249–0150. identification number (Social Security Individual should furnish full name, policies, practices, and matters affecting Number); the amount, status, and Social Security Number, current working conditions (including history of the claim; and the agency or address, and telephone number. disclosure of reasons for non-deduction program under which the claim arose of dues, if applicable); for the sole purpose of allowing the RECORD ACCESS PROCEDURES: To the U.S. Treasury Department to consumer reporting agency to prepare a Individuals seeking access to maintain cash accountability; commercial credit report. information about themselves contained To the Internal Revenue Service to in this system of records should address record withholding and social security POLICIES AND PRACTICES FOR STORING, written inquiries to the Defense Finance RETRIEVING, ACCESSING, RETAINING, AND information; and Accounting Service, Freedom of DISPOSING OF RECORDS IN THE SYSTEM: To the Bureau of Employment Information/Privacy Act Program Compensation to process disability STORAGE: Manager, Corporate Communications claims; Paper records and on electronic and Legislative Liaison, 8899 E. 56th To the Social Security Administration storage media. Street, Indianapolis, IN 46249–0150. and Office of Personnel Management to Individuals should provide full name, credit the employee’s account for RETRIEVABILITY: Social Security Number, or other Federal Insurance Contributions Act or Retrieved by name and/or Social information verifiable from the record Civil Service Retirement withheld; Security Number (SSN) itself. To the National Finance Center, Office of Thrift Savings Plan for SAFEGUARDS: CONTESTING RECORD PROCEDURES: participating employees; Records are stored in an office The DFAS rules for accessing records, To state revenue departments to credit building protected by guards, controlled for contesting contents and appealing employee’s state tax withholding; screening, use of visitor registers, initial agency determinations are To state employment agencies which electronic access, and/or locks. Access published in DFAS Regulation 5400.11– require wage information to determine to records is limited to individuals who R; 32 CFR part 324; or may be obtained

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from the Freedom of Information/ Force, in consultation with the Office of SUMMARY: The Department of the Air Privacy Act Program Manager, Defense the Air Force General Counsel, has Force proposes to amend a system of Finance and Accounting Service, determined in writing that the public records to its inventory of record Freedom of Information/Privacy Act interest requires that all sessions of the systems subject to the Privacy Act of Program Manager, Corporate United States Air Force Scientific 1974 (5 U.S.C. 552a), as amended. Communications and Legislative Advisory Board meeting be closed to the DATES: The changes will be effective on Liaison, 8899 E. 56th Street, public because they will be concerned January 12, 2009 unless comments are Indianapolis, IN 46249–0150. with classified information and matters received that would result in a contrary covered by sections 5 U.S.C. 552b(c)(1) RECORD SOURCE CATEGORIES: determination. and (4). ADDRESSES: Send comments to the Air Information is obtained from the Any member of the public wishing to individual, previous employers, Force Privacy Act Officer, Office of provide input to the United States Air Warfighting Integration and Chief financial institutions, medical Force Scientific Advisory Board should institutions, automated systems Information Officer, SAF/XCISI, 1800 submit a written statement in interfaces, state or local governments, Air Force Pentagon, Suite 220, accordance with 41 CFR 102–3.140(c) and from other DoD components and Washington, DC 20330–1800. and section 10(a)(3) of the Federal other Federal agencies such as, but not FOR FURTHER INFORMATION CONTACT: Mr. Advisory Committee Act and the limited to, Social Security Kenneth Brodie at (703) 696–7557. procedures described in this paragraph. Administration, Internal Revenue SUPPLEMENTARY INFORMATION: The Written statements can be submitted to Service, state revenue departments, Department of the Air Force systems of the Designated Federal Officer at the State Department, and Department of records notices subject to the Privacy address detailed below at any time. Defense components (including the Act of 1974, (5 U.S.C. 552a), as Statements being submitted in response Department of the Air Force, Army, or amended, have been published in the to the agenda mentioned in this notice Navy, or Defense agencies); Federal Register and are available from must be received by the Designated correspondence with attorneys, the address above. Federal Officer at the address listed dependents, survivors, or guardians may The specific changes to the record below at least five calendar days prior also furnish data for the system. system being amended are set forth to the meeting which is the subject of below followed by the notice, as EXEMPTIONS CLAIMED FOR THE SYSTEM: this notice. Written statements received amended, published in its entirety. The after this date may not be provided to None. proposed amendments are not within or considered by the United States Air the purview of subsection (r) of the [FR Doc. E8–29404 Filed 12–11–08; 8:45 am] Force Scientific Advisory Board until its Privacy Act of 1974, (5 U.S.C. 552a), as BILLING CODE 5001–06–P next meeting. The Designated Federal amended, which requires the Officer will review all timely submission of a new or altered system submissions with the United States Air DEPARTMENT OF DEFENSE report. Force Scientific Advisory Board Department of the Air Force Chairperson and ensure they are Dated: December 8, 2008. provided to members of the United Morgan E. Frazier, US Air Force Scientific Advisory States Air Force Scientific Advisory Alternate OSD Federal Register Liaison Board, Notice of Meeting Board before the meeting that is the Officer, Department of Defense. subject of this notice. AGENCY: Department of the Air Force, F051 AF JA I U.S. Air Force Scientific Advisory FOR FURTHER INFORMATION CONTACT: The SYSTEM NAME: Board. United States Air Force Scientific Advisory Board Executive Director and Commander Directed Inquiries ACTION: Meeting notice. Designated Federal Officer, Lt Col David (September 29, 2003, 68 FR 55945). SUMMARY: Under the provisions of the J. Lucia, 703–697–8288, United States CHANGES: Federal Advisory Committee Act of Air Force Scientific Advisory Board, 1972 (5 U.S.C., Appendix, as amended), 1080 Air Force Pentagon, Room 4C759, * * * * * the Government in the Sunshine Act of Washington, DC 20330–1080, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 1976 (5 U.S.C. 552b, as amended), and [email protected]. Delete entry and replace with ‘‘10 41 CFR 102–3.150, the Department of Bao-Anh Trinh, U.S.C. 8013, Secretary of the Air Force; Defense announces that the United Air Force Federal Register Liaison Officer. 10 U.S.C. 8037, Judge Advocate General; States Air Force Scientific Advisory [FR Doc. E8–29433 Filed 12–11–08; 8:45 am] 10 U.S.C. 164, Commanders of Board meeting will take place on Combatant Commands; Air Force BILLING CODE 5001–05–P Tuesday, January 13th, 2009, at the Instruction 51–904, Complaints of SAF/AQ Conference and Innovation Wrongs under Article 138, Uniform Center, 1560 Wilson Blvd, Rosslyn, VA DEPARTMENT OF DEFENSE Code of Military Justice and E.O. 9397 22209. The meeting will be from 8 a.m.– (SSN).’’ 4 p.m. The purpose of the meeting is to Department of the Air Force hold the United States Air Force PURPOSE(S): Scientific Advisory Board quarterly [Docket ID: USAF–2008–0044] Delete entry and replace with ‘‘Used meeting to discuss the FY09 Scientific for thorough and timely resolution and Privacy Act of 1974; System of Advisory Board study topics tasked by response to complaints, allegations, or Records the Secretary of the Air Force and the queries. May also be used for personnel results of the Air Force Research AGENCY: Department of the Air Force, actions involving civilian or military Laboratory review. DoD. employees. Pursuant to 5 U.S.C. 552b, as Documents received or prepared in ACTION: Notice To Amend a System of amended, and 41 CFR 102–3.155, the anticipation of litigation are used by Records. Administrative Assistant of the Air attorneys for the government to prepare

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for trials and hearings; to analyze problem involving that individual that pursuant to 5 U.S.C. 552a(b)(3) as evidence; to prepare for examination of is addressed in the report. Official Air follows: witnesses; to prepare for argument Force mailing addresses are published To governmental boards or agencies before courts, magistrates, and as an appendix to the Air Force’s or health care professional societies or investigating officers; and to advise compilation of record systems notices. organizations, or other professional commanders.’’ organizations, if such record or CATEGORIES OF INDIVIDUALS COVERED BY THE document is needed to perform ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM: licensing or professional standards SYSTEM, INCLUDING CATEGORIES OF USERS AND All persons who are the subject of monitoring. THE PURPOSE OF SUCH USES: reviews, inquiries, or investigations Delete entry and replace with ‘‘To conducted under the inherent authority The DoD ‘Blanket Routine Uses’ set governmental boards or agencies or of a commander or director. All persons forth at the beginning of the Air Force’s health care professional societies or who are the subject of administrative compilation of systems of records organizations, or other professional command actions for which another notices apply to this system. organizations, if such record or system of records is not applicable. POLICIES AND PRACTICES FOR STORING, document is needed to perform RETRIEVING, ACCESSING, RETAINING, AND CATEGORIES OF RECORDS IN THE SYSTEM: licensing or professional standards DISPOSING OF RECORDS IN THE SYSTEM: monitoring. Commander directed investigations; STORAGE: The DoD ‘Blanket Routine Uses’ set letters/transcriptions of complaints, forth at the beginning of the Air Force’s allegations and queries; letters of Paper records in file folders and compilation of systems of records appointment; reports of reviews, electronic storage media. notices apply to this system.’’ inquiries and investigations with supporting attachments, exhibits and RETRIEVABILITY: STORAGE: photographs, record of interviews; Retrieved by subject’s name and/or Delete entry and replace with ‘‘Paper witness statements; reports of legal Social Security Number (SSN). records in file folders and electronic review of case files, congressional storage media.’’ responses; memoranda; letters and SAFEGUARDS: reports of findings and actions taken; Records are accessed by person(s) RETRIEVABILITY: letters to complainants and subjects of responsible for servicing the record Delete entry and replace with investigations; letters of rebuttal from system in performance of their official ‘‘Retrieved by subject’s name and/or subjects of investigations; finance, duties and by authorized personnel who Social Security Number (SSN).’’ personnel; administration; adverse are properly screened and cleared for information, and technical reports; need-to-know. Records are stored in SAFEGUARDS: documentation of command action. locked rooms and cabinets. Those in Delete entry and replace with computer storage devices are protected AUTHORITY FOR MAINTENANCE OF THE SYSTEM: ‘‘Records are accessed by person(s) by computer system software. responsible for servicing the record 10 U.S.C. 8013, Secretary of the Air Computers are only accessible with a system in performance of their official Force; 10 U.S.C. 8037, Judge Advocate password. duties and by authorized personnel who General; 10 U.S.C. 164, Commanders of are properly screened and cleared for Combatant Commands; Air Force RETENTION AND DISPOSAL: need-to-know. Records are stored in Instruction 51–904, Complaints of Disposed of 2 years after the case is locked rooms and cabinets. Those in Wrongs under Article 138, Uniform closed. Paper records are disposed of by computer storage devices are protected Code of Military Justice and E.O. 9397 tearing into pieces, shredding, pulping, by computer system software. (SSN). macerating or burning. Computer Computers are only accessible with a PURPOSE(S): records are destroyed by deleting, password.’’ erasing, degaussing, or by overwriting. Used for thorough and timely RETENTION AND DISPOSAL: resolution and response to complaints, SYSTEM MANAGER(S) AND ADDRESS: allegations, or queries. May also be used Delete entry and replace with The Commander who initiated an for personnel actions involving civilian ‘‘Disposed of 2 years after the case is investigation or that Commander’s or military employees. closed. Paper records are disposed of by successor in command, at that Documents received or prepared in tearing into pieces, shredding, pulping, Commander’s installation office. Official anticipation of litigation are used by macerating or burning. Computer Air Force mailing addresses are attorneys for the government to prepare records are destroyed by deleting, published as an appendix to the Air for trials and hearings; to analyze erasing, degaussing, or by overwriting.’’ Force’s compilation of record systems evidence; to prepare for examination of * * * * * notices. witnesses; to prepare for argument F051 AF JA I before courts, magistrates, and NOTIFICATION PROCEDURE: investigating officers; and to advise SYSTEM NAME: Individuals seeking to determine commanders. Commander Directed Inquiries. whether this system of records contains ROUTINE USES OF RECORDS MAINTAINED IN THE information about themselves should SYSTEM LOCATION: SYSTEM, INCLUDING CATEGORIES OF USERS AND address written inquiries to the Commander Directed Inquiries are THE PURPOSE OF SUCH USES: Commander who initiated the maintained at the installation where the In addition to those disclosures investigation, or that Commander’s Commander’s office is located. generally permitted under 5 U.S.C. successor, at the Commander’s Information copies of a report are kept 552a(b) of the Privacy Act, these installation office. at the individual’s organization and at records, or information contained Requests should provide their full other organizations which have an therein, may specifically be disclosed name, mailing address, and proof of interest in a particular incident or outside the DoD as a routine use identity.

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RECORD ACCESS PROCEDURES: DEPARTMENT OF DEFENSE United States Air Force, 1420 Air Force Individuals seeking to access records Pentagon, Washington, DC 20330– Department of the Air Force 1420.’’ about themselves contained in this system should address requests to the [Docket ID: USAF–2008–0046] CATEGORIES OF INDIVIDUALS COVERED BY THE Commander who initiated the SYSTEM: Privacy Act of 1974; System of investigation, or that Commander’s Records Delete entry and replace with successor in command, at the ‘‘Individuals who have appealed Commander’s installation office. AGENCY: Department of the Air Force, Freedom of Information Act (FOIA) Requests should provide their full DoD. denials to the Secretary of the Air Force name, mailing address, and proof of ACTION: Notice to Alter a System of under The Freedom of Information Act identity. Records. and applicable Air Force Instructions.’’ SUMMARY: The Department of the Air CATEGORIES OF RECORDS IN THE SYSTEM: CONTESTING RECORD PROCEDURES: Force is proposing to alter a system of Delete entry and replace with The Air Force rules for accessing records notice in its existing inventory ‘‘Individual’s name, Social Security records, and for contesting contents and of record systems subject to the Privacy Number (SSN) and grade; letters; appealing initial agency determinations Act of 1974 (5 U.S.C. 552a), as amended. memoranda; legal opinions; reports; e- are published in Air Force Instruction DATES: The proposed action will be mail messages; forms; and other 33–332; 32 CFR part 806b; or may be effective on January 12, 2009 unless documents necessary to process obtained from the system manager. comments are received that would Freedom of Information Act (FOIA) result in a contrary determination. appeals.’’ RECORD SOURCE CATEGORIES: ADDRESSES: Send comments to the Air AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Complainants, subjects, reports of Force Privacy Act Officer, Office of Delete entry and replace with ‘‘10 investigations, witnesses, third parties, Warfighting Integration and Chief U.S.C. 8013, Secretary of the Air Force; state and local governments and Information Officer, SAF/XCPPI, 1800 10 U.S.C. 8037, Judge Advocate General, Air Force Pentagon, Washington, DC agencies, other Federal agencies, Deputy Judge Advocate General: 20330–1800. Members of Congress, and civilian Appointment and duties; 5 U.S.C. 552, police reports. Information from almost FOR FURTHER INFORMATION CONTACT: Mr. The Freedom of Information Act, as any source can be included if it is Kenneth Brodie at (703) 696–7557. amended; DoD Regulation 5400.7–R/Air relevant and material to the SUPPLEMENTARY INFORMATION: The Force Supplement and E.O. 9397 investigation, inquiry, or subsequent Department of the Air Force systems of (SSN).’’ command action. records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, PURPOSE(S): EXEMPTIONS CLAIMED FOR THE SYSTEM: have been published in the Federal Delete entry and replace with ‘‘To Register and are available from the evaluate appeals to the Secretary of the Investigatory material compiled for address above. Air Force from denials of requests for law enforcement purposes, other than The proposed system report, as documents sought pursuant to the material within the scope of subsection required by 5 U.S.C. 552a(r) of the FOIA; used by the Air Force Audit 5 U.S.C. 552a(j)(2), may be exempt Privacy Act of 1974, as amended, was Agency to conduct audits; used by other pursuant to 5 U.S.C. 552a(k)(2). submitted on December 4, 2008, to the DoD and Air Force agencies to provide However, if an individual is denied any House Committee on Oversight and guidelines and precedents and in right, privilege, or benefit for which he Government Reform, the Senate litigation involving the United States.’’ Committee on Homeland Security and would otherwise be entitled by Federal ROUTINE USES OF RECORDS MAINTAINED IN THE Governmental Affairs, and the Office of law or for which he would otherwise be SYSTEM, INCLUDING CATEGORIES OF USERS AND eligible, as a result of the maintenance Management and Budget (OMB) THE PURPOSES OF SUCH USES: pursuant to paragraph 4c of Appendix I of the information, the individual will Delete entry ‘‘Records from this be provided access to the information to OMB Circular No. A–130, ‘‘Federal Agency Responsibilities for Maintaining system of records may be disclosed to exempt to the extent that disclosure the Department of Justice for litigation.’’ would reveal the identify of a Records About Individuals,’’ dated February 8, 1996 (February 20, 1996, 61 * * * * * confidential source. FR 6427). STORAGE: Note: When claimed, this exemption Dated: December 8, 2008. allows limited protection of investigative Delete entry and replace with reports maintained in a system of records Morgan E. Frazier, ‘‘Maintained in hard copy file folders used in personnel or administrative actions. Alternate OSD Federal Register Liaison and on electronic storage media.’’ Officer, Department of Defense. An exemption rule for this system has RETRIEVABILITY: F051 AFJA A been promulgated in accordance with Delete entry and replace with requirements of 5 U.S.C. 553(b)(1), (2), SYSTEM NAME: ‘‘Retrieved by name or Social Security and (3), (c) and (e) published in 32 CFR Freedom of Information Act Appeals Number (SSN).’’ part 806b. For additional information (June 11, 1997, 62 FR 31793). SAFEGUARDS: contact the system manager. CHANGES: Delete entry and replace with [FR Doc. E8–29403 Filed 12–11–08; 8:45 am] * * * * * ‘‘Records are accessed by authorized BILLING CODE 5001–06–P personnel as necessary to accomplish SYSTEM LOCATION: their official duties. Paper records are Delete entry and replace with ‘‘The stored in locked containers and/or Judge Advocate General, Headquarters secure facilities. Computer records have

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access controls and are password EXEMPTIONS CLAIMED FOR THIS SYSTEM: and precedents; and in litigation protected and encrypted.’’ Delete entry and replace with ‘‘During involving the United States. the course of a FOIA action, exempt RETENTION AND DISPOSAL: ROUTINE USES OF RECORDS MAINTAINED IN THE materials from ‘other’ systems of records Delete entry and replace with SYSTEM, INCLUDING CATEGORIES OF USERS AND may in turn become part of the case THE PURPOSES OF SUCH USES: ‘‘Retained in office files for two years, records in this system. To the extent In addition to those disclosures then transferred to the General Services that copies of exempt records from those generally permitted under 5 U.S.C. Administration where they will be ‘other’ systems of records are entered 552a(b) of the Privacy Act, these records disposed of after four additional years. into this FOIA case record, the or information contained therein may Paper records are disposed of by tearing Department of the Air Force hereby specifically be disclosed outside the into pieces, shredding, pulping, claims the same exemptions for the DoD as a routine use pursuant to 5 macerating, or burning. Computer records from those ‘other’ systems that U.S.C. 552a(b)(3) as follows: records are destroyed by deleting, are entered into this system, as claimed erasing, degaussing, or by overwriting.’’ The ‘Blanket Routine Uses’ published for the original primary systems of at the beginning of the Air Force’s SYSTEM MANAGER(S) AND ADDRESS: records which they are a part. compilation of systems of records An exemption rule for this system has Delete entry and replace with ‘‘The notices apply to this system. Judge Advocate General, Headquarters been promulgated in accordance with United States Air Force, 1420 Air Force requirements of 5 U.S.C. 553(b)(1), (2), POLICIES AND PRACTICES FOR STORING, Pentagon, Washington, DC 20330–1420, and (3), (c) and (e) and published in 32 RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: or designee.’’ CFR part 505. For additional information contact the system STORAGE: NOTIFICATION PROCEDURE: manager.’’ Maintained in hard copy file folders Delete entry and replace with F051 AFJA A and on electronic storage media. ‘‘Individuals seeking to determine whether information about themselves SYSTEM NAME: RETRIEVABILITY: is contained in this system should Freedom of Information Act Appeal Retrieved by name or Social Security address written inquiries to The Judge Records. Number (SSN). Advocate General, Headquarters United States Air Force, 1420 Air Force SYSTEM LOCATION: SAFEGUARDS: Pentagon, Washington, DC 20330–1420. The Judge Advocate General, Records are accessed by authorized Requesters must submit their name, Headquarters United States Air Force, personnel as necessary to accomplish grade, and personal identification. 1420 Air Force Pentagon, Washington, their official duties. Paper records are Individuals may be required to provide DC 20330–1420. stored in locked containers and/or the name of the installation where secure facilities. Computer records have documents are suspected to be along CATEGORIES OF INDIVIDUALS COVERED BY THE access controls and are password with the general dates of the documents, SYSTEM: protected and encrypted. if known.’’ Individuals who have appealed Freedom of Information Act (FOIA) RETENTION AND DISPOSAL: RECORD ACCESS PROCEDURES: denials to the Secretary of the Air Force Retained in office files for two years, Delete entry and replace with under 5 U.S.C. 552 and applicable Air then transferred to the General Services ‘‘Individuals seeking access to Force Instructions. Administration where they will be information about themselves contained disposed of after four additional years. in this system should address written CATEGORIES OF RECORDS IN THE SYSTEM: Paper records are disposed of by tearing inquiries to The Judge Advocate Individual’s name, Social Security into pieces, shredding, pulping, General, Headquarters United States Air Number (SSN) and grade; letters; macerating, or burning. Computer Force, 1420 Air Force Pentagon, memoranda; legal opinions; reports; e- records are destroyed by deleting, Washington, DC 20330–1420. mail messages; forms; and other erasing, degaussing, or by overwriting. Requesters must submit their name, documents necessary to process SYSTEM MANAGER(S) AND ADDRESS: grade, and personal identification. Freedom of Information Act (FOIA) Individuals may be required to provide appeals. The Judge Advocate General, the name of the installation where Headquarters United States Air Force, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: documents are suspected to be along 1420 Air Force Pentagon, Washington, with the general dates of the documents, 10 U.S.C. 8013, Secretary of the Air DC 20330–1420, or designee. if known.’’ Force; 10 U.S.C. 8037, Judge Advocate General, Deputy Judge Advocate NOTIFICATION PROCEDURE: CONTESTING RECORD PROCEDURES: General: Appointment and duties; 5 Individuals seeking to determine Delete entry and replace with ‘‘The U.S.C. 552, The Freedom of Information whether information about themselves Air Force rules for accessing records, Act, as amended; DoD Regulation is contained in this system should and for contesting contents and 5400.7–R/Air Force Supplement and address written inquiries to The Judge appealing initial agency determinations E.O. 9397 (SSN). Advocate General, Headquarters United are published in Air Force Instruction States Air Force, 1420 Air Force PURPOSE(S): 33–332; 32 CFR part 806b; or may be Pentagon, Washington, DC 20330–1420. obtained from the system manager.’’ To evaluate appeals to the Secretary Requesters must submit their name, of the Air Force from denials of requests grade, and personal identification. RECORD SOURCE CATEGORIES: for documents sought pursuant to the Individuals may be required to provide Delete entry and replace with ‘‘From Freedom of Information Act (FOIA); the name of the installation where the requestors for their appeal and all used by the Air Force Audit Agency to documents are suspected to be along Air Force records compiled to respond conduct audits; used by other DoD and with the general dates of the documents, and process initial FOIA request.’’ Air Force agencies to provide guidelines if known.

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RECORD ACCESS PROCEDURES: records to its inventory of record identification number; physical Individuals seeking access to systems subject to the Privacy Act of characteristics; home address; phone information about themselves contained 1974 (5 U.S.C. 552a), as amended. number; and e-mail address; emergency in this system should address written DATES: The changes will be effective on contact information; training records; inquiries to The Judge Advocate January 12, 2009 unless comments are equipment accountability records; General, Headquarters United States Air received that would result in a contrary documentation pertaining to requesting, Force, 1420 Air Force Pentagon, determination. granting, and terminating access to Washington, DC 20330–1420. ADDRESSES: Send comments to the Air secure facilities and various special Requesters must submit their name, Force Privacy Act Officer, Office of access programs; foreign travel, and grade, and personal identification. Warfighting Integration and Chief badge numbers. Individuals may be required to provide Information Officer, SAF/XCISI, 1800 AUTHORITY FOR MAINTENANCE OF THE SYSTEM: the name of the installation where Air Force Pentagon, Suite 220, documents are suspected to be along 10 U.S.C. 8013, Secretary of the Air Washington, DC 20330–1800. Force; DoD 5200.2–R, DoD Personnel with the general dates of the documents, FOR FURTHER INFORMATION CONTACT: Mr. if known. Security Program; AFI 33–129, Web Kenneth Brodie at (703) 696–7557. Management and Internet Use; AFI 33– CONTESTING RECORD PROCEDURES: SUPPLEMENTARY INFORMATION: The 202, Network and Computer Security The Air Force rules for accessing Department of the Air Force notices for and E.O. 9397 (SSN). records, and for contesting contents and systems of records subject to the Privacy PURPOSES: appealing initial agency determinations Act of 1974 (5 U.S.C. 552a), as amended, are published in Air Force Instruction have been published in the Federal Automates the administrative/ 33–332; 32 CFR part 806b; or may be Register and are available from the management activities associated with obtained from the system manager. address above. the day-to-day operations of an The proposed systems reports, as organization. These include but are not RECORD SOURCE CATEGORIES: required by 5 U.S.C. 552a(r) of the limited to: administering/managing From the requestors for their appeal Privacy Act of 1974, as amended, will required training, unit calendars, and all Air Force records compiled to be submitted on December 4, 2008, to information sharing, personnel listings/ respond and process initial FOIA the House Committee on Government rosters, facility work requests and request. Oversight and Reform, the Senate security functions. Information may be Committee on Homeland Security and used by management for system EXEMPTIONS CLAIMED FOR THIS SYSTEM: Governmental Affairs, and the Office of efficiency, workload calculation, or During the course of a FOIA action, Management and Budget (OMB) reporting purposes. exempt materials from ‘other’ systems of pursuant to paragraph 4c of Appendix I records may in turn become part of the ROUTINE USES OF RECORDS MAINTAINED IN THE to OMB Circular No. A–130, ‘‘Federal SYSTEM, INCLUDING CATEGORIES OF USERS AND case records in this system. To the Agency Responsibilities for Maintaining THE PURPOSES OF SUCH USES: extent that copies of exempt records Records About Individuals,’’ dated from those ‘other’ systems of records are In addition to those disclosures February 8, 1996 (February 20, 1996, 61 generally permitted under 5 U.S.C. entered into this FOIA case record, the FR 6427). Department of the Air Force hereby 552a(b) of the Privacy Act, these records Dated: December 8, 2008. claims the same exemptions for the or information contained therein may records from those ‘other’ systems that Morgan E. Frazier, specifically be disclosed outside the are entered into this system, as claimed Alternate OSD Federal Register Liaison DoD as a routine use pursuant to 5 for the original primary systems of Officer, Department of Defense. U.S.C. 552a(b)(3) as follows: The DoD ‘Blanket Routine Uses’ records which they are a part. F031 AFMC B An exemption rule for this system has published at the beginning of the Air been promulgated in accordance with SYSTEM NAME: Force’s compilation of systems of requirements of 5 U.S.C. 553(b)(1), (2), Air Force Information System records notices apply to this system. and (3), (c) and (e) and published in 32 Records. POLICIES AND PRACTICES FOR STORING, CFR part 806b. For additional RETRIEVING, ACCESSING, RETAINING, AND SYSTEM LOCATION: information contact the system manager. DISPOSING OF RECORDS IN THE SYSTEM: Department of the Air Force, Joint [FR Doc. E8–29408 Filed 12–11–08; 8:45 am] Strike Fighter (JSF) Integrated Test STORAGE: BILLING CODE 5001–06–P Force, 225 North Wolfe Avenue, Paper records in file folders and Edwards Air Force Base, CA 93524– electronic storage media. 6035. RETRIEVABILITY: DEPARTMENT OF DEFENSE Department of the Air Force, Airborne Laser (ABL) Integrated Test Force, 116 Individual’s name and Social Security Department of the Air Force East Jones Road, Edwards Air Force Number (SSN), roster identification [Docket ID: USAF–2008–0045] Base, CA 93524–8293. number and/or passport number. SAFEGUARDS: Privacy Act of 1974; System of CATEGORIES OF INDIVIDUALS COVERED BY THE Servers are housed in a secure facility Records SYSTEM: Military and civilian personnel, at Edwards Air Force Base, California. AGENCY: Department of the Air Force, foreign nationals and contractors. Information is restricted to supervisors DoD. and reviewing officials with the CATEGORIES OF RECORDS IN THE SYSTEM: ACTION: Notice to Add a System of appropriate profiles or roles and by Records. Information includes name; Social persons responsible for servicing the Security Number (SSN); date/state/ record system in performance of their SUMMARY: The Department of the Air country of birth; passport number; official duties. Information is not shared Force is proposing to add a system of citizenship information; roster with other organizations.

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Administrative account access is automated system interfaces, security (Meloy Hall), Room 310, Fort Benning, restricted by an administration account personnel, or from other source GA 31905. E-mail comments should be Common Access Card (CAC) which is documents. sent to: [email protected]. over and above the individual CAC. FOR FURTHER INFORMATION CONTACT: EXEMPTIONS CLAIMED FOR THE SYSTEM: Mr. Access is limited to Joint Strike Fighter Anthony O’Bryant, Fort Benning Public None. and Airborne Laser personnel. Affairs Office at (706) 545–4591, or Mr. [FR Doc. E8–29411 Filed 12–11–08; 8:45 am] RETENTION AND DISPOSAL: Brandon Cockrell at (706) 545–3210 BILLING CODE 5001–06–P during normal business hours. Data stored digitally within the system is retained until reassignment, SUPPLEMENTARY INFORMATION: The Proposed Action and subject of the DEIS separation, or access is no longer DEPARTMENT OF DEFENSE required. Backup files are maintained covers the construction and only for system restoration and are not Department of the Army development activities in the to be used to retrieve individual records. cantonment, range and training areas to Computer records are destroyed by Notice of Availability of the Draft meet the requirements of the MCOE erasing, deleting or overwriting. Paper Environmental Impact Statement actions at Fort Benning. records are destroyed by tearing into (DEIS) for the Maneuver Center of The proposed action would provide pieces, shredding, pulping, macerating, Excellence (MCOE) Actions at Fort the facilities, infrastructure, and or burning. System manager(s) and Benning, GA equipment needed to support the MCOE address: activities at Fort Benning. All AGENCY: Department of the Army, DoD. Department of the Air Force, Joint construction activities associated with Strike Force Integrator, 225 North Wolfe ACTION: Notice of Availability (NOA). the proposed action would occur on Avenue, Edwards Air Force Base, CA Fort Benning within the Georgia SUMMARY: The U.S. Army announces the boundaries. The proposed community 93523–6035. availability of the DEIS, which evaluates Airborne Laser Program Manager, 116 services, personnel support, classroom, the potential environmental and barracks, and dining facilities would be East Jones Road, Edwards Air Force socioeconomic impacts of the Base, CA 93524–8293. constructed in three of the four construction, operation, and cantonment areas at Fort Benning: Main NOTIFICATION PROCEDURE: maintenance of facilities and training Post, Sand Hill, and Harmony Church; Individuals seeking to determine areas at Fort Benning. The DEIS also re- no new construction is proposed in the whether this system of records contains evaluates projects that have moved or fourth cantonment area at Kelley Hill. information about themselves should changed extensively from those Throughout the cantonment areas, new address written inquiries to or visit the evaluated in the Base Realignment and facility construction will be sited to systems manager at Department of the Closure (BRAC) and Transformation EIS coincide with and/or be a complement Air Force, JSF Integrator, 225 North (2007). The proposed action is designed to existing missions, facility operations, Wolfe Avenue, Edwards Air Force Base, to accommodate newly identified and functions. In order to minimize CA 93523–6035. requirements for Armor School training, potential impacts to the environment The request should be signed and accommodate Army growth, and (e.g., avoiding sensitive species habitat), include, name and Social Security support the MCOE standup. The MCOE existing infrastructure would be used to Number (SSN), passport number or proposed actions include the the greatest extent possible. Training roster identification number and a construction, operation, and assets, in the form of ranges and complete mailing address. maintenance of facilities and training maneuver areas, currently are found areas (including assets such as ranges throughout the installation. The RECORD ACCESS PROCEDURES: and maneuver areas) to (1) proposed improvements/upgrades to Individuals seeking access to records accommodate newly identified existing ranges and maneuver areas and about themselves contained in this requirements for Armor School training, proposed new ranges were selected to system of records should address (2) support the increased throughput of align with these existing assets. written inquiries to the systems manager military personnel and students In the development of the DEIS, three at Department of the Air Force, JSF associated with Grow the Army alternatives were carried forward for Integrator, 225 North Wolfe Avenue, missions, and (3) support the MCOE analysis. Alternative A (the Army’s Edwards Air Force Base, CA 93523– requirements at Fort Benning. Preferred Alternative) entails 6035. DATES: construction, operation, and The request should be signed and 1. Public comment period for the maintenance of facilities and training include, name and Social Security DEIS: Ends 45 days after publication of areas, including assets such as small- Number (SSN), passport number or the notice announcing the DEIS and large-caliber weapons ranges, heavy roster identification number, and a availability in the Federal Register by maneuver areas and corridors, an off- complete mailing address. the U.S. Environmental Protection road driver training area, and a vehicle Agency. CONTESTING RECORD PROCEDURES: recovery area to support the training 2. Public Meeting: Tuesday, January range requirements. Also included are The Air Force rules for accessing 13, 2009, from 3 p.m. to 5 p.m. and 6 records and for contesting contents and additional supporting projects and p.m. to 9 p.m. at the Elizabeth Bradley previously evaluated projects that have appealing initial agency determinations Turner Center, Founders Hall, are published in 32 CFR part 806b, Air moved or changed extensively in order Columbus State University, Columbus, to support the increased throughput of Force Instruction 33–332, Air Force Georgia. Privacy Program and may be obtained military personnel and students from the systems manager. ADDRESSES: Please send written associated with Grow the Army comments on the DEIS to: Mr. John missions and MCOE standup activities. RECORD SOURCE CATEGORIES: Brent, Fort Benning Directorate of Alternative B is similar to Alternative A, Information is obtained from Public Works, Environmental but differs from Alternative A in the individual, individual’s supervisor, Management Division, Building #6 location of One Station Unit (OSUT)

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Training. The Multi-Purpose Machine other Federal agencies to submit written Responsibilities for Maintaining Gun Range 1 and the Automated comments or suggestions concerning the Records About Individuals,’’ dated Combat Pistol Qualification course are alternatives and analyses addressed in February 8, 1996 (February 20, 1996, 61 only included in Alternative B. The No the DEIS. The public and government FR 6427). Action Alternative, which reflects the agencies also are invited to participate Dated: December 8, 2008. status quo and incorporates all FY09 in a public meeting where oral and Morgan E. Frazier, through FY13 projects that were written comments and suggestions will analyzed in the BRAC/Transformation Alternate OSD, Federal Register Liaison be received. Officer, Department of Defense. EIS, was also evaluated. These projects Copies of the DEIS will be available were approved in the 2007 BRAC/ for review at several local libraries prior NM–05724–1 Transformation Record of Decision to the public meeting. The DEIS may (ROD). also be reviewed electronically at: SYSTEM NAME: The DEIS analyses indicate that http://www.hqda.army.mil/acsim/brac/ Fleet Hometown News System implementation of Alternative A nepa_eis_docs.htm. (FHNS) Records. (Preferred Alternative) would have Dated: December 5, 2008. SYSTEM LOCATION: significant impacts on biological Fleet Hometown News Center, 9420 resources and cultural resources. Addison D. Davis, IV, Third Ave., Norfolk, VA 23511–2125. Significant impacts would be reduced or Deputy Assistant Secretary of the Army (Environment, Safety and Occupational minimized to no significant impacts by CATEGORIES OF INDIVIDUALS COVERED BY THE Health). implementation of mitigation measures SYSTEM: [FR Doc. E8–29319 Filed 12–11–08; 8:45 am] identified for certain biological Active-duty Navy, Marine Corps and resources and cultural resources. BILLING CODE 3710–08–M Coast Guard personnel. Implementation of the preferred alternative would have no significant CATEGORIES OF RECORDS IN THE SYSTEM: DEPARTMENT OF DEFENSE impacts to visual and aesthetic Biographical information submitted includes full name, Social Security resources; socioeconomics; Department of the Navy transportation; noise; air quality; Number (SSN), rank, gender, marital hazardous and toxic materials and [Docket ID: USN–2008–0065] status, date entered service, branch of waste; water resources; geology and service, duty status, Command mailing soils; Unique Ecological Areas; safety; Privacy Act of 1974; System of address, spouse’s first name, father’s land use; or utilities. Noise contour data Records name and address, mother’s name and for all alternatives indicate no AGENCY: Department of the Navy, DoD. address, father-in-law’s name and address, mother-in-law’s name and significant impacts would occur either ACTION: Notice To Add a System of address, high school and college/ on post or off post. Alternative locations Records. for some of the projects as presented in university complete names, graduation Alternative B would provide similar SUMMARY: The Department of the Navy dates, city, state, and zip codes, and impacts and benefits as Alternative A in proposes to add a system of records to duty to which assigned/job title. all resources except for special status its inventory of record systems subject AUTHORITY FOR MAINTENANCE OF THE SYSTEM: species where the impacts to the Red- to the Privacy Act of 1974 (5 U.S.C. 10 U.S.C. 5013, Secretary of the Navy; cockaded Woodpecker would be greater, 552a), as amended. and cultural resources where impacts 10 U.S.C. 5041, Headquarters, Marine DATES: The changes will be effective on Corps; SECNAVINST 5724.3A, Fleet would be slightly less. The No Action January 12, 2009 unless comments are alternative includes the BRAC/ Hometown News Program Policy and received that would result in a contrary Procedures; and E.O. 9397 (SSN). Transformation projects and determination. environmental baseline conditions for ADDRESSES: Send comments to Mrs. PURPOSE(S): comparison to the impacts associated Miriam Brown-Lam, HEAD, FOIA/ Information is collected and with the action alternatives. Impacts for Privacy Act Policy Branch, the maintained to generate public the No Action alternative would be Department of the Navy, 2000 Navy awareness of the accomplishments of similar to Alternative A, except cultural Pentagon, Washington, DC 20350–2000. Navy, Marine Corps, and Coast Guard resources where impacts would be less. personnel by distributing news releases In a 2007 EIS and ROD, the Army FOR FURTHER INFORMATION CONTACT: Mrs. Miriam Brown-Lam (202) 685–6545. and photographs to the hometown news announced its decision to implement media of individual service members. SUPPLEMENTARY INFORMATION: The the BRAC 2005 and Transformation Hometown news media include, but are Department of the Navy systems of Actions at Fort Benning. Under this not limited to, newspapers, radio and records notice subject to the Privacy Act action, the Armor Center and School is television stations, and college/ of 1974 (5 U.S.C. 552a), as amended, has relocating from Fort Knox, Kentucky, to university alumni publications been published in the Federal Register Fort Benning and will eventually throughout the United States and its and is available from the address above. consolidate with the Infantry Center and territories and their respective Web School. The 2007 EIS and ROD also The proposed systems reports, as sites. Release of this information is done addressed the Army Modular Force required by 5 U.S.C. 552a(r) of the with the individual’s full cooperation transformation actions, Global Defense Privacy Act of 1974, as amended, were and written consent. Posture Realignments, and other Army submitted on December 4, 2008, to the stationing activities. This EIS is House Committee on Government ROUTINE USES OF RECORDS MAINTAINED IN THE prepared in part to re-evaluate projects Report, the Senate Committee on SYSTEM, INCLUDING CATEGORIES OF USERS AND that have moved or changed extensively Homeland Security and Governmental THE PURPOSES OF SUCH USES: from those evaluated in the 2007 EIS. Affairs, and the Office of Management The DoD ‘Blanket Routine Uses’ that The Army invites the public, local and Budget (OMB) pursuant to appear at the beginning of the Navy’s governments, federally-recognized paragraph 4c of Appendix I to OMB compilation of systems of records American Indian Tribes, and state and Circular No. A–130, ‘‘Federal Agency notices apply to this system.

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POLICIES AND PRACTICES FOR STORING, are published in Secretary of the Navy communities with the greatest need for RETRIEVING, ACCESSING, RETAINING, AND Instruction 5211.5; 32 CDR part 701; or school choice based on— DISPOSING OF RECORDS IN THE SYSTEM: may be obtained from the system (1) The extent to which the applicant STORAGE: manager. would target services to geographic Paper records and electronic storage RECORD SOURCE CATEGORIES: areas in which a large proportion or media. number of public schools have been From the individual. identified for improvement, corrective RETRIEVABILITY: EXEMPTIONS CLAIMED FOR THE SYSTEM: action, or restructuring under Title I of By individual’s name and Social None. the Elementary and Secondary Security Number (SSN). Education Act of 1965 (ESEA), as [FR Doc. E8–29400 Filed 12–11–08; 8:45 am] SAFEGUARDS: amended by the No Child Left Behind BILLING CODE 5001–06–P Act of 2001; Records are maintained in a controlled facility. Physical entry is (2) The extent to which the applicant would target services to geographic restricted by the use of locks, guards, DEPARTMENT OF EDUCATION and is accessible only to authorized areas in which a large proportion of personnel. Access to computerized data Office of Innovation and Improvement; students perform below proficient on is restricted by passwords, which are Overview Information; Credit State academic assessments; and changed periodically. Data sent by Enhancement for Charter School (3) The extent to which the applicant Public Affairs Officers Hometown News Facilities Program; Notice Inviting would target services to communities Service is over a secure connection. Applications for New Awards for Fiscal with large proportions of students from Access to records is limited to person(s) Year (FY) 2009 Catalog of Federal low-income families. responsible for servicing the record in Domestic Assistance (CFDA) Number: Invitational Priorities: Under this performance of their official duties and 84.354A. competition we are particularly who are properly screened and cleared interested in applications that address for need-to-know. Dates: the following two priorities. For FY Applications Available: December 12, 2009 and any subsequent year in which RETENTION AND DISPOSAL: 2008. we make awards from the list of Date of Pre-Application Meeting: Records are destroyed one year after unfunded applicants from this January 12, 2009. submission. Paper records are destroyed competition, these priorities are Deadline for Transmittal of by shredding, burning or pulping. invitational priorities. Under 34 CFR Applications: February 10, 2009. Electronic records are destroyed by 75.105(c)(1), we do not give an Deadline for Intergovernmental erasing, deleting or overwriting. application that meets these invitational Review: April 13, 2009. SYSTEM MANAGER(S) AND ADDRESS: priorities a competitive or absolute Full Text of Announcement preference over other applications. SPAWAR Systems Center Atlantic, Code 54550, FORCEnet Engineering and I. Funding Opportunity Description These priorities are: Technology Support Branch—IT Purpose of Program: This program Invitational Priority 1—The applicant Umbrella Program Support—Tidewater provides grants to eligible entities to proposes a grant project that uses Node of the FORCEnet Composeable permit them to enhance the credit of competitive market forces to obtain the Environment, 9456 Fourth Ave., Bldg. charter schools so that they can access best rates and terms on financing for V53, Room 340, Norfolk, VA 23511– private-sector and other non-Federal charter schools in order to acquire, 2125. capital in order to acquire, construct, construct, and renovate facilities while using the least amount of grant funds. NOTIFICATION PROCEDURES: and renovate facilities at a reasonable cost. Grant projects awarded under this Invitational Priority 2—The applicant Individuals seeking to determine program will be of sufficient size, scope, proposes to replicate a model, or aspects whether this system of records contains and quality to enable the grantees to of a model, for credit-enhancing charter information about themselves should implement effective strategies for schools that it or others have address written inquiries to the Fleet reaching that objective. successfully used in the past. The model Hometown News System Manager, 9420 Priorities: This competition includes should ideally have a history of both (1) Third Ave., Norfolk, VA 23511–2125. one competitive preference priority and serving charter schools and (2) Written and signed requests must two invitational priorities that are leveraging financing for charter schools contain name and Social Security explained in the following paragraphs. in a timely manner. Number (SSN). Competitive Preference Priority: In Program Authority: 20 U.S.C. 7223– RECORDS ACCESS PROCEDURES: accordance with 34 CFR 75.105(b)(2)(ii), 7223j. Individuals seeking access to records this priority is from the regulations for Applicable Regulations: (a) The about themselves contained in this this program (34 CFR 225.12). For FY Education Department General system of records should address 2009 and any subsequent year in which Administrative Regulations (EDGAR) in written inquiries to the Fleet Hometown we make awards from the list of 34 CFR parts 74, 75, 77, 79, 80, 81, 82, News System Manager, 9420 Third unfunded applicants from this 84, 85, 86, 97, 98, and 99. (b) The Ave., Norfolk, VA 23511–2125. competition, this priority is a regulations for this program in 34 CFR Written and signed requests must competitive preference priority. Under part 225. contain name and Social Security 34 CFR 75.105(c)(2)(i), we award up to an additional 15 points to an Note: The regulations in 34 CFR part 79 Number (SSN). apply to all applicants except federally application, depending on how well the recognized Indian tribes. CONTESTING RECORD PROCEDURES: application meets this priority. The Navy’s rules for accessing This priority is: Note: The regulations in 34 CFR part 86 records, for contesting contents and The capacity of charter schools to apply to institutions of higher education appealing initial agency determinations offer public school choice in those only.

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II. Award Information program or competition as follows: sides, and to number pages Type of Award: Discretionary grants. CFDA number 84.354A. consecutively. Furthermore, applicants Estimated Available Funds: The Individuals with disabilities can are strongly encouraged to include a Administration has requested obtain a copy of the application package table of contents that specifies where $36,611,000 for new awards for this in an alternative format (e.g., braille, each required part of the application is program for FY 2009. The actual level large print, audiotape, or computer located. of funding, if any, depends on final diskette) by contacting the person or 3. Submission Dates and Times: congressional action. However, we are team listed under Alternative Format in Applications Available: December 12, inviting applications to allow enough section VIII of this notice. 2008. Date of Pre-Application Meeting: time to complete the grant process if 2. Content and Form of Application Submission: Each Credit Enhancement January 12, 2009. Congress appropriates funds for this Deadline for Transmittal of program. for Charter School Facilities program application must include the following Applications: February 10, 2009. Contingent upon the availability of Applications for grants under this funds and the quality of applications, specific elements: (a) A statement identifying the program must be submitted we may make additional awards in FY activities proposed to be undertaken electronically using the Grants.gov 2010 from the list of unfunded with grant funds (the ‘‘grant project’’), Apply site (Grants.gov). For information applicants from this competition. (including dates and times) about how Estimated Range of Awards: including a description of how the to submit your application $2,000,000–$15,000,000. applicant will determine which charter electronically, or in paper format by Estimated Average Size of Awards: schools will receive assistance and how mail or hand delivery if you qualify for $9,134,000. much and what types of assistance these Estimated Number of Awards: 4. schools will receive. an exception to the electronic (b) A description of the involvement submission requirement, please refer to Note: The Department is not bound by any of charter schools in the application’s section IV. 6. Other Submission estimates in this notice. development and in the design of the Requirements in this notice. proposed grant project. We do not consider an application Project Period: From the start date (c) A description of the applicant’s that does not comply with the deadline indicated on the grant award document expertise in capital markets financing. requirements. until the Federal funds and earnings on (Consortium applicants must provide Individuals with disabilities who those funds have been expended for the this information for each of the need an accommodation or auxiliary aid grant purposes or until financing participating organizations.) in connection with the application facilitated by the grant has been retired, (d) A description of how the proposed process should contact the person listed whichever is later. grant project will leverage the maximum under FOR FURTHER INFORMATION III. Eligibility Information amount of private-sector and other non- CONTACT in section VII in this notice. If Federal capital relative to the amount of the Department provides an 1. Eligible Applicants: (a) A public Credit Enhancement for Charter School accommodation or auxiliary aid to an entity, such as a State or local Facilities program funding used and individual with a disability in governmental entity; (b) A private, how the proposed grant project will connection with the application nonprofit entity; or (c) A consortium of otherwise enhance credit available to process, the individual’s application entities described in (a) and (b). charter schools. remains subject to all other (e) A description of how the eligible requirements and limitations in this Note: The Secretary will make, if possible, at least one award in each of the three entity possesses sufficient expertise in notice. categories of eligible applicants. education to evaluate the likelihood of Deadline for Intergovernmental success of a charter school program for Review: April 13, 2009. 2. Cost Sharing or Matching: This which facilities financing is sought. 4. Intergovernmental Review: This program does not require cost sharing or (f) In the case of an application program is subject to Executive Order matching. submitted by a State governmental 12372 and the regulations in 34 CFR 3. Other: The charter schools that a entity, a description of current and part 79. Information about grantee selects to benefit from this planned State funding actions, Intergovernmental Review of Federal program must meet the definition of a including other forms of financial Programs under Executive Order 12372 charter school, in section 5210(1) of the assistance that ensure that charter is in the application package for this ESEA, as amended. schools within the State receive the program. funding they need to have adequate 5. Funding Restrictions: (a) Reserve IV. Application and Submission facilities. accounts. Grant recipients, in Information Additional requirements concerning accordance with State and local law, 1. Address to Request Application the content of an application, together must deposit the grant funds they Package: Education Publications Center with the forms you must submit, are in receive under this program (other than (ED Pubs), P.O. Box 1398, Jessup, MD the application package for this funds used for administrative costs) in 20794–1398. Telephone, toll free: 1– program. a reserve account established and 877–433–7827. Fax: (301) 470–1244. If Page Limit: We have found that maintained by the grantee for this you use a telecommunications device reviewers are able to conduct the purpose. Amounts deposited in such for the deaf (TDD), call, toll free: 1–877– highest-quality review when account shall be used by the grantee for 576–7734. applications are concise and easy to one or more of the following purposes You can contact ED Pubs at its Web read. Applicants are encouraged to limit in order to assist charter schools in site, also: http://www.ed.gov/pubs/ their applications to no more than 40 accessing private-sector and other non- edpubs.html or at its e-mail address: double-spaced pages (not including the Federal capital: [email protected]. required forms and tables), to use a 12- (1) Guaranteeing, insuring, and If you request an application package point or larger-size font with one-inch reinsuring bonds, notes, evidences of from ED Pubs, be sure to identify this margins at the top, bottom, and both debt, loans, and interests therein.

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(2) Guaranteeing and insuring leases trustees, and agents engaged in the before the application deadline date is of personal and real property. selection, award, and administration of provided later in this section under (3) Facilitating financing by contracts or agreements related to this Exception to Electronic Submission identifying potential lending sources, grant. The standards of conduct must Requirement. encouraging private lending, and other mandate disinterested decision-making. You may access the electronic grant similar activities that directly promote A grantee may use not more than 0.25 application for Credit Enhancement for lending to, or for the benefit of, charter percent (one quarter of one percent) of Charter School Facilities Program at schools. the grant funds for the administrative http://www.Grants.gov. You must search (4) Facilitating the issuance of bonds costs of the grant. for the downloadable application by charter schools or by other public The Secretary, in accordance with package for this program by the CFDA entities for the benefit of charter chapter 37 of title 31, United States number. Do not include the CFDA schools, by providing technical, Code, will collect all or a portion of the number’s alpha suffix in your search administrative, and other appropriate funds in the reserve account established (e.g., search for 84.354, not 84.354A). assistance (such as the recruitment of with grant funds (including any Please note the following: bond counsel, underwriters, and earnings on those funds) if the Secretary • When you enter the Grants.gov site, potential investors and the determines that the grantee has you will find information about consolidation of multiple charter school permanently ceased to use all or a submitting an application electronically projects within a single bond issue). portion of the funds in such account to through the site, as well as the hours of Funds received under this program accomplish the purposes described in operation. and deposited in the reserve account the authorizing statute and the • Applications received by Grants.gov must be invested in obligations issued Performance Agreement or, if not earlier are date and time stamped. Your or guaranteed by the United States or a than two years after the date on which application must be fully uploaded and State, or in other similarly low-risk the entity first receives these funds, the submitted and must be date and time securities. Any earnings on funds, entity has failed to make substantial stamped by the Grants.gov system no including fees, received under this progress in undertaking the grant later than 4:30:00 p.m., Washington, DC program must be deposited in the project. time, on the application deadline date. reserve account and be used in The charter schools that a grantee Except as otherwise noted in this accordance with the requirements of selects to benefit from this program section, we will not accept your this program. must meet the definition of a charter application if it is received—that is, date (b) Charter school objectives. An school, as defined in section 5210(1) of and time stamped by the Grants.gov eligible entity receiving a grant under the ESEA, as amended. system—after 4:30:00 p.m., Washington, this program must use the funds (d) We specify some unallowable DC time, on the application deadline deposited in the reserve account to costs in 34 CFR 225.21. We reference date. We do not consider an application assist charter schools in accessing additional regulations outlining funding that does not comply with the deadline capital to accomplish one or both of the restrictions in the Applicable requirements. When we retrieve your following objectives: Regulations section in this notice. application from Grants.gov, we will (1) The acquisition (by purchase, 6. Other Submission Requirements: notify you if we are rejecting your lease, donation, or otherwise) of an Applications for grants under this application because it was date and time interest (which may be an interest held program must be submitted stamped by the Grants.gov system after by a third party for the benefit of a electronically unless you qualify for an 4:30:00 p.m., Washington, DC time, on charter school) in improved or exception to this requirement in the application deadline date. unimproved real property that is accordance with the instructions in this • The amount of time it can take to necessary to commence or continue the section. upload an application will vary operation of a charter school. a. Electronic Submission of depending on a variety of factors, (2) The construction of new facilities, Applications. including the size of the application and or the renovation, repair, or alteration of Applications for grants under the the speed of your Internet connection. existing facilities, necessary to Credit Enhancement for Charter School Therefore, we strongly recommend that commence or continue the operation of Facilities Program, CFDA Number you do not wait until the application a charter school. 84.354A, must be submitted deadline date to begin the submission (c) Other. Grantees must ensure that electronically using the process through Grants.gov. all costs incurred using funds from the Governmentwide Grants.gov Apply site • You should review and follow the reserve account are reasonable. The full at http://www.Grants.gov. Through this Education Submission Procedures for faith and credit of the United States are site, you will be able to download a submitting an application through not pledged to the payment of funds copy of the application package, Grants.gov that are included in the under such obligation. In the event of a complete it offline, and then upload and application package for this program to default on any debt or other obligation, submit your application. You may not e- ensure that you submit your application the United States has no liability to mail an electronic copy of a grant in a timely manner to the Grants.gov cover the cost of the default. application to us. system. You can also find the Education Applicants that are selected to receive We will reject your application if you Submission Procedures pertaining to an award must enter into a written submit it in paper format unless, as Grants.gov at http://e-Grants.ed.gov/ Performance Agreement with the described elsewhere in this section, you help/ Department prior to drawing down qualify for one of the exceptions to the GrantsgovSubmissionProcedures.pdf. funds, unless the grantee receives electronic submission requirement and • To submit your application via written permission from the Department submit, no later than two weeks before Grants.gov, you must complete all steps in the interim to draw down a specific the application deadline date, a written in the Grants.gov registration process limited amount of funds. Grantees must statement to the Department that you (see http://www.grants.gov/applicants/ maintain and enforce standards of qualify for one of these exceptions. get_registered.jsp). These steps include conduct governing the performance of Further information regarding (1) registering your organization, a their employees, officers, directors, calculation of the date that is two weeks multi-part process that includes

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registration with the Central Contractor specified identifying number unique to • No later than two weeks before the Registry (CCR); (2) registering yourself your application). application deadline date (14 calendar as an Authorized Organization • We may request that you provide us days or, if the fourteenth calendar day Representative (AOR); and (3) getting original signatures on forms at a later before the application deadline date authorized as an AOR by your date. falls on a Federal holiday, the next organization. Details on these steps are Application Deadline Date Extension business day following the Federal outlined in the Grants.gov 3-Step in Case of Technical Issues with the holiday), you mail or fax a written Registration Guide (see http:// Grants.gov System: If you are statement to the Department, explaining www.grants.gov/section910/ experiencing problems submitting your which of the two grounds for an Grants.govRegistrationBrochure.pdf). application through Grants.gov, please exception prevent you from using the You also must provide on your contact the Grants.gov Support Desk, Internet to submit your application. application the same D–U–N–S Number toll free, at 1–800–518–4726. You must If you mail your written statement to used with this registration. Please note obtain a Grants.gov Support Desk Case the Department, it must be postmarked that the registration process may take Number and must keep a record of it. no later than two weeks before the five or more business days to complete, If you are prevented from application deadline date. If you fax and you must have completed all electronically submitting your your written statement to the registration steps to allow you to submit application on the application deadline Department, we must receive the faxed successfully an application via date because of technical problems with statement no later than two weeks Grants.gov. In addition you will need to the Grants.gov system, we will grant you before the application deadline date. update your CCR registration on an an extension until 4:30:00 p.m., Address and mail or fax your annual basis. This may take three or Washington, DC time, the following statement to: Valarie Perkins, U.S. more business days to complete. business day to enable you to transmit Department of Education, 400 Maryland • You will not receive additional your application electronically or by Avenue, SW., room 4W258, point value because you submit your hand delivery. You also may mail your Washington, DC 20202–6140. application in electronic format, nor application by following the mailing Fax: (202) 205–5630. will we penalize you if you qualify for instructions described elsewhere in this Your paper application must be an exception to the electronic notice. submitted in accordance with the mail submission requirement, as described If you submit an application after or hand delivery instructions described elsewhere in this section, and submit 4:30:00 p.m., Washington, DC time, on in this notice. your application in paper format. the application deadline date, please b. Submission of Paper Applications • You must submit all documents contact the person listed under FOR by Mail. electronically, including all information FURTHER INFORMATION CONTACT in If you qualify for an exception to the you typically provide on the following section VII in this notice and provide an electronic submission requirement, you forms: Application for Federal explanation of the technical problem may mail (through the U.S. Postal Assistance (SF 424), the Department of you experienced with Grants.gov, along Service or a commercial carrier) your Education Supplemental Information for with the Grants.gov Support Desk Case application to the Department. You SF 424, Budget Information—Non- Number. We will accept your must mail the original and two copies Construction Programs (ED 524), and all application if we can confirm that a of your application, on or before the necessary assurances and certifications. technical problem occurred with the application deadline date, to the Please note that two of these forms—the Grants.gov system and that that problem Department at the applicable following SF 424 and the Department of Education affected your ability to submit your address: U.S. Department of Education, Supplemental Information for SF 424— application by 4:30:00 p.m., Application Control Center, Attention: have replaced the ED 424 (Application Washington, DC time, on the (CFDA Number 84.354A), LBJ Basement for Federal Education Assistance). application deadline date. The Level 1, 400 Maryland Avenue, SW., • You must attach any narrative Department will contact you after a Washington, DC 20202–4260. sections of your application as files in determination is made on whether your You must show proof of mailing a .DOC (document), .RTF (rich text), or application will be accepted. consisting of one of the following: .PDF (Portable Document) format. If you (1) A legibly dated U.S. Postal Service upload a file type other than the three Note: The extensions to which we refer in postmark. this section apply only to the unavailability (2) A legible mail receipt with the file types specified in this paragraph or of, or technical problems with, the Grants.gov submit a password-protected file, we system. We will not grant you an extension date of mailing stamped by the U.S. will not review that material. if you failed to fully register to submit your Postal Service. • Your electronic application must 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 receipt from a commercial carrier. requirements described in this notice. technical problem you experienced is (4) Any other proof of mailing • After you electronically submit unrelated to the Grants.gov system. acceptable to the Secretary of the U.S. your application, you will receive from Exception to Electronic Submission Department of Education. Grants.gov an automatic notification of Requirement: You qualify for an If you mail your application through receipt that contains a Grants.gov exception to the electronic submission the U.S. Postal Service, we do not tracking number. (This notification 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 of mailing: (1) A private metered postmark. receipt by the Department.) The unable to submit an application through Department then will retrieve your (2) A mail receipt that is not dated by the Grants.gov system because— the U.S. Postal Service. application from Grants.gov and send a • You do not have access to the second notification to you by e-mail. If your application is postmarked after Internet; or the application deadline date, we will This second notification indicates that • You do not have the capacity to not consider your application. the Department has received your upload large documents to the application and has assigned your Grants.gov system; Note: The U.S. Postal Service does not application a PR/Award number (an ED- and uniformly provide a dated postmark. Before

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relying on this method, you should check clearly specified, measurable, and out the activities it proposes to with your local post office. appropriate for the purpose of the undertake in its application, such as c. Submission of Paper Applications program; enhancing the credit on debt issuances, (3) The extent to which the project by Hand Delivery. guaranteeing leases, and facilitating If you qualify for an exception to the implementation plan and activities, financing; including the partnerships established, (2) The applicant’s financial stability; electronic submission requirement, you (3) The ability of the applicant to (or a courier service) may deliver your are likely to achieve measurable objectives that further the purposes of protect against unwarranted risk in its paper application to the Department by loan underwriting, portfolio monitoring, hand. You must deliver the original and the program; (4) The extent to which the project is and financial management; two copies of your application by hand, likely to produce results that are (4) The applicant’s expertise in on or before the application deadline replicable; education to evaluate the likelihood of date, to the Department at the following (5) The extent to which the project success of a charter school; address: U.S. Department of Education, will use appropriate criteria for (5) The ability of the applicant to Application Control Center, Attention: selecting charter schools for assistance prevent conflicts of interest, including (CFDA Number 84.354A), 550 12th and for determining the type and conflicts of interest by employees and Street, SW., Room 7041, Pyotomac amount of assistance to be given; members of the board of directors in a Center Plaza, Washington, DC 20202– (6) The extent to which the proposed decision-making role; 4260. The Application Control Center activities will leverage private or public- (6) If the applicant has co-applicants accepts hand deliveries daily between 8 sector funding and increase the number (consortium members), partners, or a.m. and 4:30:00 p.m., Washington, DC and variety of charter schools assisted in other grant project participants, the time, except Saturdays, Sundays, and meeting their facilities needs more than specific resources to be contributed by Federal holidays. would be accomplished absent the each co-applicant (consortium member), Note for Mail or Hand Delivery of program; partner, or other grant project Paper Applications: If you mail or hand (7) The extent to which the project participant to the implementation and deliver your application to the will serve charter schools in States with success of the grant project; Department— strong charter laws, consistent with the (7) For State governmental entities, (1) You must indicate on the envelope criteria for such laws in section the extent to which steps have been or and—if not provided by the 5202(e)(3) of the Elementary and will be taken to ensure that charter Department—in Item 11 of the SF 424 Secondary Education Act of 1965; and schools within the State receive the the CFDA number, including suffix (8) The extent to which the requested funding needed to obtain adequate letter, if any, of the competition under grant amount and the project costs are facilities; and which you are submitting your reasonable in relation to the objectives, (8) For previous grantees under the application; and design, and potential significance of the charter school facilities programs, their (2) The Application Control Center project. performance in implementing these will mail to you a notification of receipt B. Quality of project services. (15 grants. of your grant application. If you do not points) D. Quality of project personnel. (15 receive this notification within 15 In determining the quality of the points) business days from the application project services, the Secretary In determining the quality of project deadline date, you should call the U.S. considers— personnel, the Secretary considers— Department of Education Application (1) The extent to which the services (1) The qualifications of project Control Center at (202) 245–6288. to be provided by the project reflect the personnel, including relevant training and experience, of the project manager V. Application Review Information identified needs of the charter schools to be served; and other members of the project team, 1. Selection Criteria: The selection (2) The extent to which charter including consultants or subcontractors; criteria for this program are in 34 CFR schools and chartering agencies were and 225.11 and are listed in this section. The involved in the design of, and (2) The staffing plan for the grant maximum score for all of the selection demonstrate support for, the project; project. criteria is 100 points. The maximum (3) The extent to which the technical 2. Review and Selection Process: score for each criterion is indicated in assistance and other services to be Additional factors we consider in parentheses. Each criterion also provided by the proposed grant project selecting an application for an award are includes the factors that the reviewers involve the use of cost-effective in 34 CFR 225.12. will consider to determine how well an strategies for increasing charter schools’ Note: In the event we receive an application meets the criterion. We access to facilities financing, including application from a past grantee under the encourage applicants to make explicit the reasonableness of fees and lending program that is not making full use of the connections to the selection criteria and terms; and grant(s) it has previously received, we may, factors in their applications. (4) The extent to which the services consistent with appropriate grant A. Quality of project design and to be provided by the proposed grant administration authorities including 34 CFR significance. (35 points) project are focused on assisting charter 75.217(d)(3) and 34 CFR 75.232, (1) not In determining the quality of project award a new grant to that applicant under schools with a likelihood of success and this competition or (2) adjust the size of the design and significance, the Secretary the greatest demonstrated need for new grant award. considers— assistance under the program. (1) The extent to which the grant C. Capacity. (35 points) proposal would provide financing to In determining an applicant’s VI. Award Administration Information charter schools at better rates and terms business and organizational capacity to 1. Award Notices: If your application than they can receive absent assistance carry out the project, the Secretary is successful, we notify your U.S. through the program; considers— Representative and U.S. Senators and (2) The extent to which the project (1) The amount and quality of send you a Grant Award Notice (GAN). goals, objectives, and timeline are experience of the applicant in carrying We may notify you informally, also.

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If your application is not evaluated or print, audiotape, or computer diskette) [email protected], Via mail not selected for funding, we notify you. on request to the program contact addressed to the U.S. Election 2. Administrative and National Policy persons listed under FOR FURTHER Assistance Commission 1225 New York Requirements: We identify INFORMATION CONTACT in section VII in Ave, NW., Suite 1100, Washington, DC administrative and national policy this notice. 20005, or by fax at 202/566–3127. requirements in the application package Electronic Access to This Document: Commenters are encouraged to submit and reference these and other You can view this document, as well as comments electronically and include requirements in the Applicable all other documents of this Department ‘‘MOE Advisory 09–001’’ in the subject Regulations section in this notice. published in the Federal Register, in line, to ensure timely receipt and We reference the regulations outlining text or Adobe Portable Document consideration. the terms and conditions of an award in Format (PDF) on the Internet at the SUPPLEMENTARY INFORMATION: The the Applicable Regulations section in following site: http://www.ed.gov/news/ following is the complete text of the this notice and include these and other fedregister. specific conditions in the GAN. The To use PDF you must have Adobe proposed Advisory 09–001 Maintenance GAN also incorporates your approved Acrobat Reader, which is available free of Effort Funding the EAC is seeking application as part of your binding at this site. If you have questions about public comment on. commitments under the grant. using PDF, call the U.S. Government Proposed Advisory 09–001 3. Reporting: Applicants selected for Printing Office (GPO), toll free, at 1– Maintenance of Effort Funding funding will be required to submit to 888–293–6498; or in the Washington, EAC ADVISORY 09–001 the Department an annual report that DC, area at (202) 512–1530. MAINTENANCE OF EFFORT includes the information from section FUNDING 5227(b) of the ESEA and any other Note: The official version of this document information the Secretary may require. is the document published in the Federal Date Issued: DRAFT. Grantees must also cooperate and Register. Free Internet access to the official edition of the Federal Register and the Code I. General assist the Department with any periodic of Federal Regulations is available on GPO financial and compliance audits of the Access at: http://www.gpoaccess.gov/nara/ This advisory supersedes Advisories grantee, as determined necessary by the index.html. 07–003 and 07–003A and fulfills the Department. The specific Performance Election Assistance Commission’s (EAC) Agreement between the grantee and the Dated: December 9, 2008. ongoing responsibility to provide Department may contain additional Amanda L. Farris, information on the management of reporting requirements. Assistant Deputy Secretary for Innovation and Federal funds provided under the Help At the end of your project period, you Improvement. America Vote Act (HAVA). For must submit a final performance report, [FR Doc. E8–29501 Filed 12–11–08; 8:45 am] recipients of HAVA Title II including financial information, as BILLING CODE 4000–01–P Requirements Payments, this advisory directed by the Secretary. If you receive specifies the entities to which the a multi-year award, you must submit an Maintenance of Effort (MOE) annual performance report that provides ELECTION ASSISTANCE COMMISSION requirement applies, explains how to the most current performance and calculate the MOE base level amount, financial expenditure information as Notice: Request for Public Comment and describes how to satisfy the directed by the Secretary under 34 CFR on Proposed Advisory 09–001 continuing requirement for MOE. 75.118. The Secretary may also require Maintenance of Effort Funding MOE is a means by which Congress, more frequent performance reports and thereby the Federal Government, under 34 CFR 75.720(c). AGENCY: United States Election requires a recipient to share in the 4. Performance Measures: The Assistance Commission. funding of a particular endeavor by performance measures for this program ACTION: Notice: request for public requiring that the Federal funding are: (1) The amount of funding grantees comment. actually increases the amount of leverage for charter schools to acquire, financial support to a particular SUMMARY: The EAC seeks public construct, and renovate school facilities program or task. Specifically, MOE comment on the proposed policy and (2) the number of charter schools requirements are used to ensure that the ‘‘Advisory 09–001 Maintenance of Effort served. Grantees must provide this recipient is not replacing or supplanting Funding.’’ This advisory supersedes information as part of their annual its prior level of spending on a Advisories 07–003 and 07–003A and performance reports. particular program or task with Federal fulfills the Election Assistance dollars. VII. Agency Contacts Commission’s (EAC) ongoing responsibility to provide information on II. Applicability to HAVA FOR FURTHER INFORMATION CONTACT: the management of Federal funds Valarie Perkins or Jim Houser, U.S. Section 254(a)(7) of HAVA establishes provided under the Help America Vote Department of Education, 400 Maryland the requirement for MOE, as follows: Act (HAVA). EAC issues this notice Avenue, SW., room 4W258, according to a policy adopted on How the State, in using the requirements Washington, DC 20202–6140. payment, will maintain the expenditures of September 18, 2008 that requires EAC to Telephone: (202) 260–1924 or by e-mail: the State for activities funded by the payment provide notice and an opportunity for [email protected]. at a level that is not less than the level of If you use a TDD, call the FRS, toll public comment on, among other things, such expenditures maintained by the State free, at 1–800–877–8339. advisories being considered for for the fiscal year ending prior to November adoption by the U.S. Election Assistance 2000 (hereinafter referred to as state fiscal VIII. Other Information Commission. year 2000). Alternative Format: Individuals with DATES: Comments must be received by The MOE requirement is defined by a disabilities can obtain this document 5 p.m. EST on January 6, 2009. pre-determined ‘‘base level of and a copy of the application package in ADDRESSES: Comments may be expenditure’’ expended in state fiscal an alternative format (e.g., braille, large submitted: Via e-mail at year 2000 for election administration

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costs funded by HAVA Requirements 2. Identify the total expended by the is responsible for ensuring that a sub- Payments.1 Recipients of HAVA State for each Title III-related activity in recipient is not replacing or supplanting Requirements Payments are required to state fiscal year 2000.3 its prior level of spending on a maintain this expenditure level, in Note: If no funds were expended by the particular program or task with Federal addition to spending of HAVA dollars, State in state fiscal year 2000 for activities dollars. as a condition of receipt of funds. related to Title III, the State shall maintain The State Plan must include a a record of such determination. description of the distribution and III. Applicability to Recipients of Title monitoring of these sub-awards, II, Section 251 Requirements Payments V. Satisfaction of MOE including MOE requirements. Although not required, the EAC encourages States Per HAVA Sections 253 and 254(a)(7), Per HAVA Section 254(a)(7), a State to provide detailed and specific MOE is applicable to recipients of must meet the MOE requirement in each information in the State Plan on the HAVA Requirements Payments. State applicable fiscal year in which it manner in which the State intends to election offices in each of the 50 states, expended Title II Requirements account for MOE by sub-recipient. In the District of Columbia, Puerto Rico, Payments. If no Requirements Payments any event, if a State sub-awards the U.S. Virgin Islands, Guam, and are used in a fiscal year, there is no Requirements Payments, it must American Samoa (‘‘States’’) are the grant applicable MOE requirement for that maintain documentation to support its recipients of Requirements Payments. year. monitoring methods, including A State may determine that it has met As the grant recipients, State election determinations of MOE base levels of the MOE requirement in an applicable offices are required to meet the MOE sub-recipients, for audit purposes. requirements and maintain appropriate Federal fiscal year by expending the supporting documentation. same or greater amount of State funds 4 VII. Calculation of Base Level of than the base year level of expenditure Expenditure for Sub-Recipients IV. Calculation of Base Level of on either: If a State sub-awards grants to county Expenditure 1. All election administration 5 or local units of government for a activities. specific activity (or activities), then the Per HAVA Section 254(a)(7), each Or State’s State Plan must include a 2. Each HAVA activity (or activities) county’s or local unit government’s base description of how the State intends to on which the state expends funds as the level of expenditure for state fiscal year meet the MOE requirements. Although corresponding base year activity (or 2000 may be calculated in either of two not required, the EAC encourages that activities).6 manners: State Plans specify whether the State 1. Identify the total expended by the had expenditures in state fiscal year VI. Sub-Award of HAVA Title II sub-recipient on all election Requirements Payments and MOE 7 2000 that triggered MOE, identify the administration activities. Or amount expended in state fiscal year State election offices may sub-award HAVA funds to counties or local units 2. Identify the total expended by the 2000, and explain how the State intends sub-recipient on the specific activity to meet the MOE requirements. That of government per HAVA Section 254(a)(2). However, if a State sub- (activities) for which Federal funds were notwithstanding, if a State had provided.8 expenditures that triggered MOE, it awards Requirements Payments to must maintain documentation to counties or local units of government, Note: If no funds were expended by the then the county or local unit of sub-recipient in state fiscal year 2000 for the support the determination of the base activity (activities) related to Title III, the level of expenditure for state fiscal year government is also subject to the requirements of MOE. In accordance State shall maintain a record of such 2000 for audit purposes. States may determination. calculate the base level of expenditure with the ‘‘Common Rule,’’ which If a State sub-awards grants to a sub- for state fiscal year 2000 in either of two requires States to ensure sub-recipients recipient for a non-specific activity, manners: comply with the requirements of Federal statutes, the State election office other than all activities allowed by 1. Identify the total expended by the HAVA, then the sub-recipient’s base State on all election administration 3 With this method, a State needs to identify level of expenditure for state fiscal year activities in state fiscal year 2000.2 separately the amount spent on any of the following 2000 may be calculated in either of two activities in state fiscal year 2000: voting manners: Or equipment, voter registration database, ID requirements, provisional voting, and voter 1. Identify the total expended by the 1 Activities funded by HAVA Title II information. sub-recipient on all election Requirements Payments include: (1) Procuring 4 State funds used to meet an MOE requirement administration activities in the state voting systems that comply with the requirements may not include funds provided as the State’s 5 fiscal year 2000.9 of HAVA Title III, Section 301, (2) developing, percent match. 5 operating, and/or maintaining a computerized If the total State dollars expended on election- 7 With this method, a sub-recipient may use its statewide voter registration list, (3) providing related activities for a given fiscal year is the same entire budget for election-related activity in state required information to voters at the polling place or greater than the total base level for state fiscal fiscal year 2000 to establish the base level of for Federal elections, (4) implementing and/or year 2000, the State will have met the MOE expenditure. It is not necessary to break out operating a system of provisional voting during requirement for that year. activities related to Title III. Federal elections; (5) implementing identification 6 The State, for example, would need to document 8 For example, if a State provides a sub-grant for requirements for first-time voters who register to that the State expended in a given fiscal year the the purchase of voting equipment, the base level vote by mail, and (6) improving the administration same or more on each activity on which calculation does not need to include all of elections for Federal office. Therefore, if a State Requirements Payments are expended than the expenditures toward activities allowed by HAVA, was spending money on any of these types of amount spent in each allowable area in state fiscal but rather the calculation includes only the activities in the state fiscal year 2000, it will be year 2000: Voting equipment, voter registration expenditures on voting equipment by the recipient subject to the MOE requirement. database, ID requirements, provisional voting, and county or local unit of government in state fiscal 2 With this method, a State may use its entire voter information. If the State does not spend any year 2000. budget for election-related activity in state fiscal Requirements Payments on an activity (say, voting year 2000 to establish the base level of expenditure. equipment) in a particular fiscal year, then the MOE 9 With this method, a sub-recipient may use its It is not necessary to break out activities related to requirement for that activity (voting equipment) entire budget for election-related activity in state Title III. would not apply. Continued

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Or requirements of its sub-recipients by Company, One Energy Plaza, Jackson, 2. Identify the total expended by sub- expending State dollars in an amount MI 49201, (517) 788–2455. recipient for each Title III-related equal or greater than the sub-recipient’s i. FERC Contact: Tim Konnert, (202) activity in state fiscal year.10 base level of expenditure, in addition to 502–6359 or [email protected]. j. Deadline for filing comments, Note: If no funds were expended by the any MOE applicable to the State, in each sub-recipient in state fiscal year 2000 for the Federal fiscal year that HAVA funds are recommendations, terms and activities related to Title III, the State shall used by the sub-recipient 14 on either: conditions, and prescriptions: 60 days maintain a record of such determination. a. All election administration from the issuance date of this notice; activities.15 reply comments are due 105 days from Or the issuance date of this notice. VIII. Satisfaction of MOE by Sub- All documents (original and eight Recipients b. Each HAVA activity (or activities) on which the sub-recipient expends copies) should be filed with: Kimberly As the grant recipient, the State is funds as the corresponding base year D. Bose, Secretary, Federal Energy ultimately responsible for ensuring activity (or activities).16 Regulatory Commission, 888 First compliance with the MOE, including Street, NE., Washington, DC 20426. compliance by sub-recipients. The MOE Donetta L. Davidson, The Commission’s Rules of Practice requirement is applicable to sub- Vice-Chair, U.S. Election Assistance and Procedure require all intervenors recipients in each fiscal year in which Commission. filing documents with the Commission the sub-recipient expends Title II [FR Doc. E8–29442 Filed 12–11–08; 8:45 am] to serve a copy of that document on Requirements Payments. If no BILLING CODE 6820–KF–P each person whose name appears on the Requirements Payments are used in a official service list for the project. fiscal year, there is no applicable MOE Further, if an intervenor files comments requirement for that year. The State may DEPARTMENT OF ENERGY or documents with the Commission determine compliance with the MOE relating to the merits of an issue that requirements by its sub-recipients in Federal Energy Regulatory may affect the responsibilities of a either of two manners: Commission particular resource agency, they must also serve a copy of the document on 1. The State may hold each sub- [Project No. 785–018] recipient individually responsible for that resource agency. meeting an applicable MOE requirement Consumers Energy Company; Notice Comments, recommendations, terms by determining the sub-recipient of Application Ready for and conditions, and prescriptions may expends the same or greater local funds Environmental Analysis and Soliciting be filed electronically via the Internet in than the sub-recipient’s base level of Comments, Recommendations, Terms lieu of paper. The Commission strongly expenditure 11 on either: and Conditions, and Prescriptions encourages electronic filings. See CFR a. All election administration 385.2001(a)(1)(iii) and the instructions activities.12 December 8, 2008. on the Commission’s Web site (http:// Or Take notice that the following www.ferc.gov) under the ‘‘eFiling’’ link. b. Each HAVA activity (or activities) hydroelectric license application has k. This application has been accepted, on which the sub-recipient expends been filed with the Commission and is and is ready for environmental analysis funds as the corresponding base year available for public inspection. at this time. activity (or activities).13 a. Type of Application: New License. l. The existing Calkins Bridge Project Or b. Project No.: P–785–018. consists of: (1) A 42-foot-high, 1,330- 2. The State may assume c. Date Filed: April 4, 2008. foot-long dam, consisting of a 1,100- responsibility for meeting the MOE d. Applicant: Consumers Energy foot-long earth embankment section and Company. a 230-foot-long concrete integral fiscal year 2000 to establish the base level of e. Name of Project: Calkins Bridge powerhouse-spillway section; (2) an 8.5- expenditure. It is not necessary to break out Hydroelectric Project. mile-long, 1,550-acre reservoir with a activities related to Title III. f. Location: On the Kalamazoo River normal water surface elevation of 615.0 10 With this method, a sub-recipient needs to in Allegan County, Michigan. The feet above mean sea level; (3) a identify separately the amount spent on any of the powerhouse containing three generating following activities in state fiscal year 2000: Voting project does not occupy federal lands. equipment, voter registration database, ID g. Filed Pursuant to: Federal Power units with a total installed capacity of requirements, provisional voting, and voter Act 16 U.S.C. 791(a)–825(r). 2,550 kilowatts; (4) three 64-foot-long, information. h. Applicant Contact: James R. 24-kilovolt buried transmission cables 11 In this method, the sub-recipient county or connected to the regional grid; and (5) local unit of government would be responsible for Coddington, Consumers Energy the applicable MOE for any Requirements Payments appurtenant facilities. The estimated expended in a given fiscal year. 14 In this method, the State will absorb average annual generation of the project 12 If the total local dollars expended by the sub- responsibility by expending State dollars, in excess is 13,041 megawatt-hours. recipient on election-related activities for a given of the State’s MOE requirement, to account for a m. A copy of the application is fiscal year are the same or greater than the total base sub-recipient’s MOE. available for review at the Commission level, the sub-recipient will have met the MOE 15 The State, for example, must expend the same requirement for that year. or more State dollars in each applicable fiscal year in the Public Reference Room or may be 13 The sub-recipient, for example, would need to than the sub-recipient’s total base level. viewed on the Commission’s Web site at document that the sub-recipient expended in a 16 The State in each applicable fiscal year, for http://www.ferc.gov using the given fiscal year the same or more on each activity example, must expend the same or more in each ‘‘eLibrary’’ link. Enter the docket on which Requirements Payments are expended allowable area than the amount spent by the sub- than the amount spent in each allowable area in recipient in each allowable area in state fiscal year number excluding the last three digits in state fiscal year 2000: Voting equipment, voter 2000: Voting equipment, voter registration database, the docket number field to access the registration database, ID requirements, provisional ID requirements, provisional voting, and voter document. For assistance, contact FERC voting, and voter information. If the sub-recipient information. If the sub-recipient does not spend any Online Support at does not spend any Requirements Payments on an Requirements Payments on an activity (say, voting activity (say, voting equipment) in a particular equipment) in a particular fiscal year, then the MOE [email protected] or toll- fiscal year, then the MOE requirement for that requirement for that activity (voting equipment) free at 1–866–208–3676, or for TTY, activity (voting equipment) would not apply. would not apply. (202) 502–8659. A copy is also available

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for inspection and reproduction at the DEPARTMENT OF ENERGY assistance, call toll-free 1–866–208– address in item h above. 3372. Federal Energy Regulatory You may also register online at Commission Kimberly D. Bose, http://www.ferc.gov/docs-filing/ Secretary. esubscription.asp to be notified via e- [Project No. 13288–000] [FR Doc. E8–29472 Filed 12–11–08; 8:45 am] mail of new filings and issuances BILLING CODE 6717–01–P related to this or other pending projects. Riverbank Ogdensburg, LLC; Notice of For assistance, contact FERC Online Preliminary Permit Application Support. Accepted for Filing and Soliciting DEPARTMENT OF ENERGY Comments, Motions To Intervene, and n. All filings must (1) Bear in all Competing Applications Federal Energy Regulatory capital letters the title ‘‘COMMENTS,’’ Commission ‘‘REPLY COMMENTS,’’ December 8, 2008. ‘‘RECOMMENDATIONS,’’ ‘‘TERMS On September 23, 2008, Riverbank [Project No. 13302–000] AND CONDITIONS,’’ or ‘‘FISHWAY Ogdensburg, LLC filed an application, Scott’s Mill Hydropower, LLC; Notice PRESCRIPTIONS;’’ (2) set forth in the pursuant to section 4(f) of the Federal of Preliminary Permit Application heading the name of the applicant and Power Act (FPA), proposing to study the Accepted for Filing and Soliciting the project number of the application to feasibility of the Ogdensburg Pumped Comments, Motions To Intervene, and which the filing responds; (3) furnish Storage Project to be located on the St. Competing Applications the name, address, and telephone Lawrence River in St. Lawrence County, number of the person protesting or New York. December 8, 2008. intervening; and (4) otherwise comply The proposed project would consist On October 14, 2008, Scott’s Mill with the requirements of 18 CFR of: (1) The St. Lawrence River as an Hydropower, LLC filed an application, 385.2001 through 385.2005. All upper reservoir; (2) an underground pursuant to section 4(f) of the Federal comments, recommendations, terms and lower reservoir with an elevation of Power Act, proposing to study the conditions or prescriptions must set 1,800 feet below MSL and a storage feasibility of the Scott’s Mill forth their evidentiary basis and capacity of 3,775 acre-feet; (3) four 13 Hydropower Project to be located in otherwise comply with the requirements foot diameter, 2,000 foot long, concrete Amherst and Bedford Counties, of 18 CFR 4.34(b). Agencies may obtain and steel penstocks; (4) an underground Virginia. powerhouse containing four pump/ copies of the application directly from The proposed project consists of: (1) turbine units with a total installed the applicant. Each filing must be An existing 15-foot-high, 925-foot-long capacity of 1,000 MW; (5) a 345 kV, 18.6 masonry dam, (2) an existing reservoir accompanied by proof of service on all mile long transmission line; and (6) having a surface area of 316 acres, a persons listed in the service list appurtenant facilities. The annual storage capacity of 3,790 acre-feet, and prepared by the Commission in this production would be 2,190 GWh which normal maximum water surface proceeding, in accordance with 18 CFR would be sold to a local utility. elevation of 511 feet msl, (3) a proposed 4.34(b) and 385.2010. Applicant Contact: William S. powerhouse with 4 generating units o. Procedural Schedule: Helmer, Esq., 194 Washington Ave., having a total capacity of 3.6 MW; (4) a The application will be processed Suite 315, Albany, New York 12210 proposed 250-foot-long transmission according to the following Hydro (518) 689–3570. line; and (5) appurtenant facilities. The Licensing Schedule. Revisions to the FERC Contact: Kelly Houff (202) 502– project would have an annual 6393. schedule may be made as appropriate. generation of 14.9 GWh, and would be Deadline for filing comments, motions sold to a local utility. Milestone Target date to intervene: 60 days from the issuance Applicant Contact: Mr. Kevin of this notice. Comments, motions to Edwards, P.O. Box 143, Mayodan, NC Commission issues May 2009 intervene, notices of intent and 27027, Phone: 336–589–6138. FERC EA. competing applications may be filed Contact: Henry Woo, 202–502–8872. Comments on EA ...... June 2009 electronically via the Internet. See 18 Deadline for filing comments, motions CFR 385.2001(a)(1)(iii) and the to intervene, competing applications p. Final amendments to the instructions on the Commission’s Web (without notices of intent), or notices of site under the ‘‘e-Filing’’ link. If unable intent to file competing applications: 60 application must be filed with the to be filed electronically, documents days from the issuance of this notice. Commission no later than 30 days from may be paper-filed. To paper-file, an Comments, motions to intervene, the issuance date of this notice. original and eight copies should be notices of intent, and competing Kimberly D. Bose, mailed to: Kimberly D. Bose, Secretary, applications may be filed electronically Secretary. Federal Energy Regulatory Commission, via the Internet. See 18 CFR [FR Doc. E8–29470 Filed 12–11–08; 8:45 am] 888 First Street, NE., Washington, DC 385.2001(a)(1)(iii) and the instructions 20426. For more information on how to on the Commission’s Web site under the BILLING CODE 6717–01–P submit these types of filings please go ‘‘eFiling’’ link. If unable to be filed to the Commission’s Web site located at electronically, documents may be paper- http://www.ferc.gov/filing- filed. To paper-file, an original and eight comments.asp. More information about copies should be mailed to: Kimberly D. this project can be viewed or printed on Bose, Secretary, Federal Energy the ‘‘eLibrary’’ link of the Commission’s Regulatory Commission, 888 First Web site at http://www.ferc.gov/docs- Street, NE., Washington, DC 20426. For filing/elibrary.asp. Enter the docket more information on how to submit number (P–13288) in the docket number these types of filings please go to the field to access the document. For Commission’s Web site located at http://

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www.ferc.gov/filing-comments.asp. Company, 569 Brookwood Village, Suite Commission (except for the mailing of More information about this project can 501, Birmingham, Alabama 35209 at environmental documents issued by the be viewed or printed on the ‘‘eLibrary’’ (205) 325–7126, or Patricia S. Francis, Commission) and will not have the right link of the Commission’s Web site at Senior Counsel, Southern Natural Gas to seek court review of the http://www.ferc.gov/docs-filing/ Company, 569 Brookwood Village, Suite Commission’s final order. elibrary.asp. Enter the docket number 501, Birmingham, Alabama 35209 at The Commission strongly encourages (P–13302) in the docket number field to (205) 325–7696. electronic filings of comments, protests access the document. For assistance, There are two ways to become and interventions in lieu of paper using call toll-free 1–866–208–3372. involved in the Commission’s review of the ‘‘eFiling’’ link at http:// this project. First, any person wishing to www.ferc.gov. Persons unable to file Kimberly D. Bose, obtain legal status by becoming a party electronically should submit an original Secretary. to the proceedings for this project and 14 copies of the protest or [FR Doc. E8–29473 Filed 12–11–08; 8:45 am] should, on or before the comment date intervention to the Federal Energy BILLING CODE 6717–01–P stated below file with the Federal Regulatory Commission, 888 First Energy Regulatory Commission, 888 Street, NE., Washington, DC 20426. First Street, NE., Washington, DC 20426, This filing is accessible on-line at DEPARTMENT OF ENERGY a motion to intervene in accordance http://www.ferc.gov, using the with the requirements of the ‘‘eLibrary’’ link and is available for Federal Energy Regulatory Commission’s Rules of Practice and review in the Commission’s Public Commission Procedure (18 CFR 385.214 or 385.211) Reference Room in Washington, DC. [Docket No. CP09–27–000] and the Regulations under the NGA (18 There is an ‘‘eSubscription’’ link on the CFR 157.10). A person obtaining party Web site that enables subscribers to Southern Natural Gas Company; status will be placed on the service list receive e-mail notification when a Notice of Application maintained by the Secretary of the document is added to a subscribed Commission and will receive copies of docket(s). For assistance with any FERC December 8, 2008. all documents filed by the applicant and Online service, please e-mail Take notice that on November 26, by all other parties. A party must submit [email protected], or call 2008, Southern Natural Gas Company 14 copies of filings made in the (866) 208–3676 (toll free). For TTY, call (Southern), 569 Brookwood Village, proceeding with the Commission and (202) 502–8659. Suite 501, Birmingham, Alabama 35209, must mail a copy to the applicant and Comment Date: December 29, 2008. filed in the above referenced docket an to every other party. Only parties to the application pursuant to section 7(b) of proceeding can ask for court review of Kimberly D. Bose, the Natural Gas Act (NGA) and part 157 Commission orders in the proceeding. Secretary. of the Commission’s regulations, for an However, a person does not have to [FR Doc. E8–29471 Filed 12–11–08; 8:45 am] order approving the abandonment of intervene in order to have comments BILLING CODE 6717–01–P approximately 97 miles of pipe in considered. The second way to various segments and appurtenant participate is by filing with the facilities located on Southern’s North Secretary of the Commission, as soon as DEPARTMENT OF ENERGY Main Loop Pipeline in Sharkey, Yazoo, possible, an original and two copies of Winston, Noxubee, and Lowndes comments in support of or in opposition Federal Energy Regulatory Counties, Mississippi, and Pickens and to this project. The Commission will Commission Tuscaloosa Counties, Alabama, and consider these comments in [Docket No. CP09–19–000] abandonment of three small compressor determining the appropriate action to be units at Southern’s Onward Compressor taken, but the filing of a comment alone Port Barre Investments, L.L.C. (d/b/a Station in Sharkey County, Mississippi. will not serve to make the filer a party Bobcat Gas Storage); Notice of Intent Southern also proposes to make certain to the proceeding. The Commission’s To Prepare an Environmental modifications that will allow Southern rules require that persons filing Assessment for the Proposed Bobcat to continue meeting its firm capacity comments in opposition to the project Gas Storage Project Expansion and requirements on the North Main Line provide copies of their protests only to Request for Comments on and the North Main 2nd Loop Line, all the party or parties directly involved in Environmental Issues as more fully set forth in the application the protest. which is on file with the Commission Persons who wish to comment only December 8, 2008. and open to public inspection. The on the environmental review of this The staff of the Federal Energy filing is available for review at the project should submit an original and Regulatory Commission (FERC or Commission in the Public Reference two copies of their comments to the Commission) will prepare an Room or may be viewed on the Secretary of the Commission. environmental assessment (EA) that will Commission’s Web site web at http:// Environmental commentors will be discuss the environmental impacts of www.ferc.gov using the ‘‘eLibrary’’ link. placed on the Commission’s the proposed Bobcat Gas Storage Project Enter the docket number excluding the environmental mailing list, will receive Expansion (Bobcat Expansion) involving last three digits in the docket number copies of the environmental documents, construction and operation of additional field to access the document. For and will be notified of meetings natural gas storage caverns and pipeline assistance, contact FERC at associated with the Commission’s facilities by Port Barre Investments, [email protected] or call environmental review process. L.L.C. (d/b/a Bobcat Gas Storage toll-free, (886) 208–3676 or TTY, (202) Environmental commentors will not be (Bobcat)) in St. Landry Parish, 1 502–8659. required to serve copies of filed Louisiana. The EA will be used by the Any questions concerning this documents on all other parties. 1 The Bobcat Gas Storage Project was authorized application may be directed to Patrick However, the non-party commentors by the Commission on July 20, 2006 in Docket No. B. Pope, Vice President and General will not receive copies of all documents CP06–66–000, and amended on April 19, 2007 and Counsel, Southern Natural Gas filed by other parties or issued by the March 4, 2008 in Docket Nos. CP06–66–001 and

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Commission in its decision-making Bobcat Cavern No. 2 which is currently If approved, Bobcat proposes to process to determine whether or not to under construction. Bobcat has construct the Bobcat Expansion authorize the project under section 7 of proposed to expand its storage and facilities during the first quarter of 2009, the Natural Gas Act. deliverability capabilities to satisfy its and place the new facilities into service This notice explains the scoping customers growing demand for natural by the third quarter of 2012. process we 2 will use to gather gas storage. The proposed Bobcat Land Requirements for Construction environmental input from the public Expansion would involve construction and interested agencies, and of three additional storage caverns at the Construction of the Bobcat Expansion summarizes the project review process existing Bobcat Gas Storage Site to would affect a total of approximately for the FERC. Your input will help increase the overall storage capacity by 119.6 acres of land. Following determine which issues need to be about 31.5 Bcf (24 Bcf working gas, 7.5 construction, a total of about 114.0 acres evaluated in the EA. Details on how to Bcf cushion gas).3 Bobcat would also of land would be allowed to revert to submit comments during the scoping expand its compressor station by previous conditions. The remaining 5.6 period are provided in the Public installing additional gas-fired engine acres of land would be retained for Participation section of this notice. compressors, resulting in a station total operation of aboveground facilities and Please note that the scoping period will of 64,575 horsepower (hp). In addition, access roads. Permanent rights-of-way close on January 7, 2009. Bobcat would construct new pipeline in agricultural lands would be restored This notice is being sent to potentially facilities and modify four meter stations to agricultural uses following affected landowners; federal, state, and to accommodate the increased construction. local government agencies; elected deliverability. With the exception of 0.04 acre officials; environmental and public Specifically, the Expansion Project required for expanding the West interest groups; Native American Tribes; would include construction and Pipeline Tie-Over Site, all construction other interested parties; and local operation of: activity would be located on property libraries and newspapers. State and • Three new salt cavern storage wells owned or leased by Bobcat, or within local government representatives are (Bobcat Nos. 3, 4, and 5) and ancillary previously disturbed construction asked to notify their constituents of this facilities to connect the caverns to rights-of-way and workspaces. The planned project and encourage them to Bobcat’s existing facilities; proposed storage caverns and comment on their areas of concern. • 26,695 hp of additional compressor station expansion would be If you are a landowner receiving this compression and two dehydration units located within the existing 83-acre Gas notice, you may be contacted by a totaling 600 million cubic feet per day Storage Site. The pipeline loops would Bobcat representative about survey (MMcfd) at the existing Bobcat be located within existing Bobcat rights- permission and/or the acquisition of an Compressor Station; of-way. Bobcat has not proposed to easement to construct, operate, and • A 9.96-mile-long, 20-inch-diameter acquire additional permanent rights-of- maintain the proposed facilities. The natural gas pipeline loop 4 way to operate the proposed pipelines. company would seek to negotiate a constructed in the existing North Pipeline Corridor; Modifications to the meter stations mutually acceptable agreement. • would occur entirely within the existing However, if the project is approved by A 2.68-mile-long, 16-inch-diameter natural gas pipeline loop constructed in fencelines for each station. The West the Commission, that approval conveys Pipeline Tie-Over Site would be with it the right of eminent domain. the existing West Pipeline Corridor; • Modification of the existing expanded (40 feet by 40 feet), Therefore, if easement negotiations fail permanently impacting 0.04 acre of to produce an agreement, the natural gas metering facilities at pipeline interconnects with Gulf South Pipeline, agricultural land. company could initiate condemnation Bobcat would use previously proceedings in accordance with state Texas Eastern Transmission, L.P., ANR Pipeline, and Transcontinental Gas Pipe authorized public and private roads to law. access the construction rights-of-way A fact sheet prepared by the FERC Line Company; and • Expansion of the existing West and aboveground facilities. Bobcat entitled ‘‘An Interstate Natural Gas would construct two new access roads Facility On My Land? What Do I Need Pipeline Tie-Over Site to include a new 5 and relocate an existing permanent To Know?’’ is available for viewing on pig launcher and pipeline tie-in. The general location of the Expansion access road within the previously the FERC Web site (http:// authorized 83-acre Gas Storage Site to www.ferc.gov). This fact sheet addresses Project facilities is shown in Appendix 1.6 provide permanent access to the a number of typically asked questions, proposed Bobcat cavern wells Nos. 4 including the use of eminent domain 3 ‘‘Cushion gas’’ (also referred to as base gas) is and 5. and how to participate in the the volume of gas that is intended as permanent Commission’s proceedings. inventory in a storage reservoir to maintain The EA Process adequate pressure and deliverability rates. We are preparing an EA to comply Summary of the Proposed Project ‘‘Working gas’’ is the total gas in storage minus the with the National Environmental Policy The Bobcat Gas Storage Site currently base gas. Working gas is the volume of gas available to the market place at a particular time. Act of 1969 (NEPA) which requires the has an overall natural gas storage 4 A pipeline loop is constructed parallel to an Commission to take into account the capacity of 20.4 billion cubic feet (Bcf), existing pipeline to increase capacity. environmental impact that could result with 15.6 Bcf of working gas capacity in 5 A pig is a device used to clean or inspect the if it authorizes Bobcat’s proposal. NEPA two solution-mined salt storage caverns; internal surface of a pipeline. They are inserted into also requires us to discover and address Bobcat Cavern No. 1 which was placed the pipeline by means of a device called a pig launcher and pushed through the pipeline by the public’s concerns about proposals into service November 1, 2008, and pressure of the flowing fluid, usually gas. that require federal authorizations. This 6 The appendices referenced in this notice are not process is referred to as ‘‘scoping.’’ The CP06–66–002, respectively. Construction of the being printed in the Federal Register. Copies of all Bobcat Gas Storage Project began in December 2006 appendices are available on the Commission’s Web main goal of the scoping process is to and is ongoing. site at the ‘‘eLibrary’’ link or from the Commission’s 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the Public Reference Room, 888 First Street, NE., last page of this notice. Copies of the appendices environmental staff of the FERC’s Office of Energy Washington, DC 20426, or call (202) 502–8371. For were sent to all those receiving this notice in the Projects. instructions on connecting to eLibrary refer to the mail.

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focus the analysis in the EA on the environmental effects, reasonable the Commission’s eFiling system) or 14 important environmental issues. alternatives, and measures to avoid or paper copies of its filings to the By this notice, we are requesting lessen environmental impacts. The more Secretary of the Commission and must public comments on the scope of the specific your comments, the more useful send a copy of its filings to all other issues to be addressed in the EA. All they will be. To ensure that your parties on the Commission’s service list comments received will be considered comments are timely and properly for this proceeding. If you want to during preparation of the EA. We are recorded, please send in your comments become an intervenor you must file a also asking federal, state, and local so that they will be received in motion to intervene according to Rule agencies with jurisdiction and/or Washington, DC on or before January 7, 214 of the Commission’s Rules of special expertise with respect to 2009. Practice and Procedure (18 CFR environmental issues to formally For your convenience, there are three 385.214). Interventions may also be filed cooperate with us in the preparation of methods which you can use to submit electronically via the Commission’s the EA. Agencies that would like to your written comments to the Internet Web site at http://www.ferc.gov. request cooperating status should follow Commission. The three methods are: Only intervenors have the right to seek the instructions for filing comments (1) You may file your comments rehearing of the Commission’s decision. provided below. electronically by using the Quick Affected landowners and parties with The EA will discuss impacts that Comment feature, which is located on environmental concerns may be granted could occur as a result of the the Commission’s Internet Web site at intervenor status upon showing good construction and operation of the http://www.ferc.gov under the link to cause by stating that they have a clear proposed project, under the general Documents and Filings. A Quick and direct interest in this proceeding headings of geology and soils; land use; Comment is an easy method for which would not be adequately water resources, fisheries, and wetlands; interested persons to submit text-only represented by any other parties. You do cultural resources; vegetation and comments on a project; not need intervenor status to have your wildlife; threatened and endangered (2) You may file your comments environmental comments considered. electronically by using the eFiling species; air quality and noise; safety and Environmental Mailing List reliability; and cumulative impacts. The feature, which is located on the EA will also evaluate reasonable Commission’s Internet Web site at An effort is being made to send this alternatives to the proposed project, and http://www.ferc.gov under the link to notice to all individuals, organizations, make recommendations on how to Documents and Filings. eFiling involves and government entities interested in lessen or avoid impacts on affected preparing your submission in the same and/or potentially affected by the resources. manner as you would if filing on paper, proposed project. This includes all Our independent analysis of the and then saving the file on your landowners who are potential right-of- issues will be in the EA. Depending on computer’s hard drive. You will attach way grantors, whose property may be the comments received during the that file as your submission. New used temporarily for project purposes, scoping process, the EA may be eFiling users must first create an or who own homes within distances published and mailed to federal, state, account by clicking on ‘‘Sign up’’ or defined in the Commission’s regulations and local agencies; newspapers; ‘‘eRegister.’’ You will be asked to select of certain aboveground facilities. By this libraries; interested individuals; and the the type of filing you are making. A notice we are also asking governmental Commission’s official service list for comment on a particular project is agencies, especially those in Appendix this proceeding. An additional comment considered a ‘‘Comment on a Filing;’’ or 2, to express their interest in becoming period will be allotted for review if the (3) You may file your comments via cooperating agencies for the preparation EA is published. We will consider all mail to the Commission by sending an of the EA. comments on the EA before we make original and two copies of your letter to: We may mail the EA for comment. If our recommendations to the Kimberly D. Bose, Secretary, Federal you are interested in receiving the EA Commission. Energy Regulatory Commission, 888 for review and/or comment, please First St., NE., Room 1A, Washington, DC return the Mail List Retention Form Currently Identified Environmental 20426. (Appendix 3). In addition, all Issues Label one copy of the comments for individuals who provide written We have already identified several the attention of Gas Branch 3, PJ–11.3. comments to the FERC will remain on issues that we think deserve attention In all instances please reference the our environmental mailing list for this based on a preliminary review of the project docket number (CP09–19–000) project. If you do not return the Mail proposed facilities and the with your submission. The Commission List Retention Form or provide written environmental information provided by strongly encourages electronic filing of comments, you will be taken off the Bobcat. This preliminary list of issues comments and has dedicated eFiling mailing list. expert staff available to assist you at may be changed based on your Additional Information comments and our analysis. 202–502–8258 or [email protected]. • Additional information about the Construction impacts to wetlands Becoming an Intervenor located in the proposed project area. project is available from the • Construction and operational noise In addition to involvement in the EA Commission’s Office of External Affairs, near residences and structures. scoping process, you may want to at 1–866–208–FERC or on the FERC • Additional water pumping become an official party to the Internet Web site (http://www.ferc.gov) requirements for cavern leaching. proceeding known as an ‘‘intervenor’’. using the ‘‘eLibrary’’ link. Click on the Intervenors play a more formal role in eLibrary link, click on ‘‘General Search’’ Public Participation the process. Among other things, and enter the docket number excluding You can make a difference by intervenors have the right to receive the last three digits in the Docket providing us with your specific copies of case-related Commission Number field (e.g., CP09–19). Be sure comments or concerns about the Bobcat documents and filings by other you have selected an appropriate date Expansion Project. Your comments intervenors. Likewise, each intervenor range. For assistance, please contact should focus on the potential must send one electronic copy (using FERC Online Support at

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[email protected] or toll free parties to express their support for this Regulations; Long Term 2 Enhanced at 1–866–208–3676, or for TTY, contact request. Surface Water Treatment Rule; OMB (202) 502–8659. The eLibrary link also By this notice, Tuscarora’s request for Number 2040–0266; on 10/31/2008, provides access to the texts of formal deferral of the technical conference date OMB corrected a previous Disapproval documents issued by the Commission, is granted. The technical conference of this ICR. The ICR is approved through such as orders, notices, and scheduled for December 11, 2008, is 12/31/2008. rulemakings. cancelled and will be rescheduled for OMB Approvals In addition, the Commission now Thursday, January 15, 2009, at 10 a.m offers a free service called eSubscription (EDT), in a room to be designated at the EPA ICR Number 1977.03; National which allows you to keep track of all offices of the Federal Energy Regulatory Wastewater Operator Training and formal issuances and submittals in Commission, 888 First Street, NE., Technical Assistance Program—Clean specific dockets. This can reduce the Washington, DC 20426. Water Act 104(g)(1) (Renewal); in 40 amount of time you spend researching FERC conferences are accessible CFR part 45; was approved 11/21/2008; under section 508 of the Rehabilitation proceedings by automatically providing OMB Number 2040–0238; expires 11/ Act of 1973. For accessibility you with notification of these filings, 30/2011. accommodations please send an e-mail document summaries, and direct links EPA ICR Number 1759.05; Pesticide to [email protected] or call toll free to the documents. Go to http:// Worker Protection Standard Training (866) 208–3372 (voice) or (202) 502– www.ferc.gov/esubscribenow.htm. and Notification; in 40 CFR part 170; 8659 (TTY), or send a fax to (202) 208– was approved 11/25/2008; OMB Fact sheets prepared by the FERC are 2106 with the required Number 2070–0148; expires 11/30/2011. also available for viewing on the FERC accommodations. EPA ICR Number 1985.04; NESHAP Internet Web site (http://www.ferc.gov), All interested persons are permitted for Leather Finishing Operations using the ‘‘For Citizens’’ link. The fact to attend. For further information please (Renewal); in 40 CFR part 63, subpart sheet, ‘‘Guide to Electronic Information contact Timothy Duggan at (202) 502– TTTT; was approved 11/28/2008; OMB at FERC,’’ provides instructions on how 8326 or e-mail Number 2060–0478; expires 11/30/2011. to stay informed and participate in the [email protected]. EPA ICR Number 1850.05; NESHAP Commission’s proceedings. Nathaniel J. Davis, Sr., for Primary Cooper Smelters (Renewal); Finally, Bobcat will be updating its Deputy Secretary. in 40 CFR part 63, subpart QQQ; was Web site at http:// approved 11/28/2008; OMB Number [FR Doc. E8–29463 Filed 12–11–08; 8:45 am] www.BobcatStorage.com/ to share news 2060–0476; expires 11/30/2011. and updates as the environmental BILLING CODE 6717–01–P EPA ICR Number 2025.04; NESHAP review of its project proceeds. for Friction Materials Manufacturing Kimberly D. Bose, (Renewal); in 40 CFR part 63, subpart ENVIRONMENTAL PROTECTION QQQQQ; was approved 11/28/2008; Secretary. AGENCY OMB Number 2060–0481; expires 11/ [FR Doc. E8–29474 Filed 12–11–08; 8:45 am] [FRL–8751–1] 30/2011. BILLING CODE 6717–01–P EPA ICR Number 2066.04; NESHAP Agency Information Collection for Engine Test Cells/Stands (Renewal); Activities OMB Responses in 40 CFR part 63, subpart PPPPP; was DEPARTMENT OF ENERGY approved 11/28/2008; OMB Number AGENCY: Environmental Protection 2060–0481; expires 11/30/2011. Federal Energy Regulatory Agency (EPA). Commission EPA ICR Number 1750.05; National ACTION: Notice. Volatile Organic Compound Emission Standards for Architectural Coatings [Docket Nos. RP09–8–000] SUMMARY: This document announces the Office of Management and Budget’s (Renewal); in 40 CFR part 59, subpart D; Tuscarora Gas Transmission (OMB) responses to Agency Clearance was approved 12/02/2008; OMB Company; Notice Deferring Technical requests, in compliance with the Number 2060–0393; expires 12/31/2011. EPA ICR Number 1896.08; Conference Date Paperwork Reduction Act (44 U.S.C. 3501 et seq.). An agency may not Disinfectants/Disinifection Byproducts, December 8, 2008. conduct or sponsor, and a person is not Chemical and Radionuclides (Renewal); On December 8, 2008, Tuscarora Gas required to respond to, a collection of in 40 CFR parts 141 and 142; was Transmission Company (Tuscarora) information unless it displays a approved 12/04/2008; OMB Number filed a request for deferral of the currently valid OMB control number. 2040–0204; expires 12/31/2011. technical conference scheduled in the The OMB control numbers for EPA’s OMB Comments Filed above-captioned proceeding for regulations are listed in 40 CFR part 9 EPA ICR Number 1989.05; Revised December 11, 2008.1 Tuscarora states and 48 CFR chapter 15. National Pollutant Discharge that deferral of the technical conference FOR FURTHER INFORMATION CONTACT: Rick Elimination System Permit Regulations until January 15, 2009, will provide Westlund (202) 566–1682, or e-mail at for Concentrated Animal Feeding additional time for settlement [email protected] and please refer Operations (SNPRM); on 11/19/2008 discussions among the parties. to the appropriate EPA Information Collection Request (ICR) Number. OMB filed comment. Tuscarora further states that it has EPA ICR Number 2279.01; Aircraft SUPPLEMENTARY INFORMATION: contacted the intervenors in this Drinking Water (Proposed Rule); on 11/ proceeding and is authorized by all OMB Responses to Agency Clearance 20/2008 OMB filed comment. Requests 1 The Commission directed that a technical Withdrawn from OMB conference be held to address the issues raised by Correction to Previous Action Tuscarora’s October 1, 2008 tariff filing in this EPA ICR Number 2255.01; proceeding. Tuscarora Gas Transmission Co., 125 EPA ICR Number 2097.03; The Performance Measurement Reporting for FERC ¶ 61,133 (2008). National Primary Drinking Water Training and Education/Outreach; was

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withdrawn from OMB review on 12/03/ received will be included in the public Use www.regulations.gov to obtain a 2008. docket without change and may be copy of the draft collection of Dated: December 8, 2008. made available online at information, submit or view public John Moses, www.regulations.gov, including any comments, access the index listing of personal information provided, unless the contents of the docket, and to access Acting Director, Collection Strategies Division. the comment includes information those documents in the public docket claimed to be Confidential Business that are available electronically. Once in [FR Doc. E8–29479 Filed 12–11–08; 8:45 am] Information (CBI) or other information the system, select ‘‘search,’’ then key in BILLING CODE 6560–50–P whose disclosure is restricted by statute. the docket ID number identified in this Do not submit information that you document. consider to be CBI or otherwise What Information Is EPA Particularly ENVIRONMENTAL PROTECTION protected through www.regulations.gov Interested in? AGENCY or e-mail. The www.regulations.gov Web [EPA–HQ–SFUND–2005–0008, FRL–8751–6] site is an ‘‘anonymous access’’ system, Pursuant to section 3506(c)(2)(A) of which means EPA will not know your the PRA, EPA specifically solicits Agency Information Collection identity or contact information unless comments and information to enable it Activities; Proposed Collection; you provide it in the body of your to: Comment Request; Emergency comment. If you send an e-mail (i) Evaluate whether the proposed Planning and Release Notification comment directly to EPA without going collection of information is necessary Requirements Under Emergency through www.regulations.gov your for the proper performance of the Planning and Community Right-to- e-mail address will be automatically functions of the Agency, including Know Act Sections 302, 303, and captured and included as part of the whether the information will have 304.EPA ICR No. 1395.07, OMB Control comment that is placed in the public practical utility; No. 2050–0092 docket and made available on the (ii) Evaluate the accuracy of the Internet. If you submit an electronic Agency’s estimate of the burden of the AGENCY: Environmental Protection comment, EPA recommends that you proposed collection of information, Agency. include your name and other contact including the validity of the ACTION: Notice. information in the body of your methodology and assumptions used; (iii) Enhance the quality, utility, and SUMMARY: In compliance with the comment and with any disk or CD–ROM you submit. If EPA cannot read your clarity of the information to be Paperwork Reduction Act (PRA) (44 collected; and U.S.C. 3501 et seq.), this document comment due to technical difficulties and cannot contact you for clarification, (iv) Minimize the burden of the announces that EPA is planning to collection of information on those who submit a request to renew an existing EPA may not be able to consider your comment. Electronic files should avoid are to respond, including through the approved Information Collection use of appropriate automated electronic, Request (ICR) to the Office of the use of special characters, any form of encryption, and be free of any defects mechanical, or other technological Management and Budget (OMB). This collection techniques or other forms of ICR is scheduled to expire on May 31, or viruses. For additional information about EPA’s public docket visit the EPA information technology, e.g., permitting 2009. Before submitting the ICR to OMB electronic submission of responses. In for review and approval, EPA is Docket Center homepage at http:// www.epa.gov/epahome/dockets.htm. particular, EPA is requesting comments soliciting comments on specific aspects from very small businesses (those that FOR FURTHER INFORMATION CONTACT: Sicy of the proposed information collection employ less than 25) on examples of Jacob, Office of Emergency as described below. specific additional efforts that EPA Management, Mail Code 5104A, DATES: Comments must be submitted on could make to reduce the paperwork Environmental Protection Agency, 1200 or before February 10, 2009. burden for very small businesses Pennsylvania Ave., NW., Washington, ADDRESSES: Submit your comments, affected by this collection. identified by Docket ID No. EPA–HQ– DC 20460; telephone number: (202) SFUND–2005–0008 by one of the 564–8019; fax number: (202) 564–2620; What Should I Consider When I following methods: e-mail address: [email protected]. Prepare My Comments for EPA? • www.regulations.gov: Follow the SUPPLEMENTARY INFORMATION: You may find the following on-line instructions for submitting How Can I Access the Docket and/or suggestions helpful for preparing your comments. Submit Comments? comments: • E-mail: [email protected]. 1. Explain your views as clearly as • Fax: (202) 566–0224. EPA has established a public docket possible and provide specific examples. • Mail: Superfund Docket, for this ICR under Docket ID No. EPA– 2. Describe any assumptions that you Environmental Protection Agency, HQ–SFUND–2005–0008, which is used. Mailcode: 28221T, 1200 Pennsylvania available for online viewing at 3. Provide copies of any technical Ave., NW., Washington, DC 20460. www.regulations.gov, or in person information and/or data you used that • Hand Delivery: Docket Center, EPA viewing at the Superfund Docket in the support your views. West Bldg, Room 3334, 1301 EPA Docket Center (EPA/DC), EPA 4. If you estimate potential burden or Constitution Avenue, NW., Washington West, Room 3334, 1301 Constitution costs, explain how you arrived at the DC 20460. Such deliveries are only Ave., NW., Washington, DC. The EPA/ estimate that you provide. accepted during the Docket’s normal DC Public Reading Room is open from 5. Offer alternative ways to improve hours of operation, and special 8:30 a.m. to 4:30 p.m., Monday through the collection activity. arrangements should be made for Friday, excluding legal holidays. The 6. Make sure to submit your deliveries of boxed information. telephone number for the Reading Room comments by the deadline identified Instructions: Direct your comments to is 202–566–1744, and the telephone under DATES. Docket ID No. EPA–HQ–SFUND–2005– number for the Superfund Docket is 7. To ensure proper receipt by EPA, 0008. EPA’s policy is that all comments 202–566–1744. be sure to identify the docket ID number

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assigned to this action in the subject of the reportable quantities listed for and providing information; adjust the line on the first page of your response. each extremely hazardous substance existing ways to comply with any You may also provide the name, date, (EHS). This ICR also covers the previously applicable instructions and and Federal Register citation. notification and the written follow-up requirements which have subsequently required under this section. The changed; train personnel to be able to What Information Collection Activity or implementing regulations and the list of ICR Does This Apply to? respond to a collection of information; substances for emergency planning and search data sources; complete and Docket ID No. EPA–HQ–SFUND– emergency release notification are review the collection of information; 2005–0008. codified in 40 CFR part 355. and transmit or otherwise disclose the Affected entities: Entities potentially On November 3, 2008 (73 FR 64452), information. affected by this action are those which EPA has revised some of the The ICR provides a detailed have a threshold planning quantity of an requirements in 40 CFR part 355, explanation of the Agency’s estimate, extremely hazardous substance (EHS) specifically, the requirements related to which is only briefly summarized here: listed in 40 CFR Part 355, Appendix A emergency planning notification. EPA is Estimated total number of potential and those which have a release of any now requiring facilities to notify their respondents: 84,215. of the EHS above a reportable quantity. LEPC within 30 days of any changes Frequency of response: Occasionally. Entities more likely to be affected by occurring at the facility that may be Estimated total average number of this action may include chemical relevant to emergency planning. This responses for each respondent: Once. manufacturers, non-chemical revision should not impose any Estimated total annual burden hours: manufacturers, retailers, petroleum additional burden on facilities subject to 183,347. refineries, utilities, etc. emergency planning. Prior to the Estimated total annual costs: $27,000 Title: Emergency Planning and November 3, 2008 final rule, facilities includes annualized capital or O&M Release Notification Requirements were required to provide any changes to costs. under Emergency Planning and the LEPC promptly. This final rule now Community Right-to-Know Act Sections requires facilities to provide any What Is the Next Step in the Process for 302, 303, and 304. changes within 30 days. Other revisions This ICR? ICR number: EPA ICR No. 1395.07, finalized on November 3, 2008 do not EPA will consider the comments OMB Control No. 2050–0092. impose any burden on facilities subject ICR status: This ICR is currently received and amend the ICR as to Section 302 and 304 requirements. appropriate. The final ICR package will scheduled to expire on May 31, 2009. Burden Statement: The burden and An Agency may not conduct or sponsor, then be submitted to OMB for review costs stated below are from the current and approval pursuant to 5 CFR and a person is not required to respond approved ICR. The average reporting to, a collection of information, unless it 1320.12. At that time, EPA will issue burden for a limited number of existing another Federal Register notice displays a currently valid OMB control facilities, to inform the LEPC of any number. The OMB control numbers for pursuant to 5 CFR 1320.5(a)(1)(iv) to changes at the facility that may affect announce the submission of the ICR to EPA’s regulations in title 40 of the CFR, emergency planning (1.50 hours). The after appearing in the Federal Register OMB and the opportunity to submit average reporting burden for facilities additional comments to OMB. If you when approved, are listed in 40 CFR reporting releases under 40 CFR 355.40 part 9, are displayed either by have any questions about this ICR or the is estimated to average approximately 5 approval process, please contact the publication in the Federal Register or hours per release, including the time for technical person listed under FOR by other appropriate means, such as on determining if the release is a reportable FURTHER INFORMATION CONTACT. the related collection instrument or quantity, notifying the LEPC and SERC, form, if applicable. The display of OMB or the 911 operator, and developing and Dated: December 5, 2008. control numbers in certain EPA submitting a written follow-up notice. Deborah Y. Dietrich, regulations is consolidated in 40 CFR There are no record keeping Director, Office of Emergency Management. part 9. requirements for facilities under EPCRA [FR Doc. E8–29469 Filed 12–11–08; 8:45 am] Abstract: The authority for these Sections 302–304. The total burden to BILLING CODE 6560–50–P requirements is sections 302, 303, and facilities over three years is 229,473 304 of the Emergency Planning and hours at a cost of $11.1 million. Community Right-to-Know Act The average burden for emergency ENVIRONMENTAL PROTECTION (EPCRA), 1986 (42 U.S.C. 11002, 11003, planning activities is 21 hours per plan AGENCY and 11004). EPCRA established broad for LEPCs, and 16 hours per plan for emergency planning and facility SERCs. Each SERC and LEPC is also [EPA–HQ–OPP–2008–0414; FRL–8751–2] reporting requirements. Section 302 estimated to incur an annual record Agency Information Collection requires facilities to notify their state keeping burden of 10 hours. The total Activities; Submission to OMB for emergency response commission (SERC) burden to LEPC and SERC over three Review and Approval; Comment that the facility is subject to emergency years is 320,568 hours at a cost of $8.1 Request; Submission of Protocols and planning. This activity has been million. Study Reports for Environmental completed; this ICR covers only new Burden means the total time, effort, or Research Involving Human Subjects; facilities that are subject to this financial resources expended by persons EPA ICR No. 2195.03, OMB Control No. requirement. Section 303 requires the to generate, maintain, retain, or disclose 2070–0169 local emergency planning committees or provide information to or for a (LEPCs) to prepare emergency plans for Federal agency. This includes the time AGENCY: Environmental Protection facilities that are subject to section 302. needed to review instructions; develop, Agency (EPA). This activity has been also completed; acquire, install, and utilize technology ACTION: Notice. this ICR only covers any updates needed and systems for the purposes of for these emergency response plans. collecting, validating, and verifying SUMMARY: In compliance with the Section 304 requires facilities to report information, processing and Paperwork Reduction Act (PRA) (44 to SERCs and LEPCs releases in excess maintaining information, and disclosing U.S.C. 3501 et seq.), this document

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announces that an Information the system, select ‘‘docket search,’’ then and ethical standards that will be Collection Request (ICR) has been key in the docket ID number identified employed during the proposed study forwarded to the Office of Management above. Please note that EPA’s policy is may be reviewed and approved. Also, and Budget (OMB) for review and that public comments, whether respondents are required to submit approval. This is a request to renew an submitted electronically or in paper, information about the ethical conduct of existing approved collection. The ICR, will be made available for public completed research that involved which is abstracted below, describes the viewing at www.regulations.gov as EPA human subjects when such research is nature of the information collection and receives them and without change, submitted to EPA. its estimated burden and cost. unless the comment contains This renewal ICR estimates the third DATES: Additional comments may be copyrighted material, confidential party response burden from complying submitted on or before January 12, 2009. business information (CBI), or other with the January 2006 final rule. ADDRESSES: Submit your comments, information whose public disclosure is Information is typically submitted by referencing Docket ID No. EPA–HQ– restricted by statute. For further registrants of pesticide products to OPP–2008–0414, to (1) EPA online information about the electronic docket, support the registration of their using www.regulations.gov (our go to www.regulations.gov. products. Responses to this collection of preferred method), by e-mail to Title: Submission of Protocols and information are mandatory. The [email protected], or by mail to: OPP Study Reports for Environmental authority for this information collection Regulatory Public Docket (7502P), Research Involving Human Subjects. is provided under section 25 of FIFRA Office of Pesticide Programs (OPP), ICR numbers: EPA ICR No. 2195.03, and 40 CFR part 26. Environmental Protection Agency, 1200 OMB Control No. 2070–0169. Burden Statement: The annual public ICR Status: This ICR is scheduled to Pennsylvania Ave., NW., Washington, reporting and recordkeeping burden for expire on January 31, 2009. Under OMB DC 20460, and (2) OMB by mail to: this collection of information is regulations, the Agency may continue to Office of Information and Regulatory estimated to average 598 hours per conduct or sponsor the collection of Affairs, Office of Management and response for research involving information while this submission is Budget (OMB), Attention: Desk Officer intentional exposure of human subjects, pending at OMB. An Agency may not for EPA, 725 17th Street, NW., and 12 hours per response for all other conduct or sponsor, and a person is not Washington, DC 20503. submitted research with human required to respond to, a collection of subjects. Burden means the total time, FOR FURTHER INFORMATION CONTACT: information, unless it displays a effort, or financial resources expended Joseph Hogue, Field and External currently valid OMB control number. by persons to generate, maintain, retain, Affairs Division, Office of Pesticide The OMB control numbers for EPA’s or disclose or provide information to or Programs, (7506P), Environmental regulations in title 40 of the CFR, after for a Federal agency. This includes the Protection Agency, 1200 Pennsylvania appearing in the Federal Register when time needed to review instructions; Ave., NW., Washington, DC 20460; approved, are listed in 40 CFR part 9, develop, acquire, install, and utilize telephone number: 703–308–9072; fax are displayed either by publication in technology and systems for the purposes number: 703–305–5884; e-mail address: the Federal Register or by other of collecting, validating, and verifying [email protected]. appropriate means, such as on the information, processing and SUPPLEMENTARY INFORMATION: EPA has related collection instrument or form, if maintaining information, and disclosing submitted the following ICR to OMB for applicable. The display of OMB control and providing information; adjust the review and approval according to the numbers in certain EPA regulations is existing ways to comply with any procedures prescribed in 5 CFR 1320.12. consolidated in 40 CFR part 9. previously applicable instructions and On June 13, 2008 (73 FR 33811), EPA Abstract: In January 2006, EPA issued requirements which have subsequently sought comments on this ICR pursuant a final rule to amend the Federal Policy changed; train personnel to be able to to 5 CFR 1320.8(d). EPA received two for the Protection of Human Subjects respond to a collection of information; comments during the comment period, (also known as the Common Rule) at 40 search data sources; complete and which are addressed in the ICR. Any CFR part 26. EPA’s final rule review the collection of information; additional comments on this ICR should significantly strengthened and and transmit or otherwise disclose the be submitted to EPA and OMB within expanded the protections for subjects of information. 30 days of this notice. ‘‘third-party’’ human research (i.e., Respondents/Affected Entities: EPA has established a public docket research that is not conducted or Pesticide registrants. for this ICR under Docket ID No. EPA– supported by EPA). Affected entities are Estimated Number of Responses: 54. HQ–OPP–2008–0414, which is available required to submit information to EPA Frequency of Response: On occasion. for online viewing at and an institutional review board (IRB) Estimated Total Annual Hour Burden: www.regulations.gov, or in person prior to initiating, and to EPA upon the 20,572. viewing at the OPP Regulatory Public completion of, certain studies that Estimated Total Annual Cost: Docket in Rm. S–4400, One Potomac involve human research participants. $1,579,098, includes $0 annualized Yard (South Building), 2777 S. Crystal The information collection activity capital or O&M costs. Drive, Arlington, VA. This docket imposed by this final rule consists of Changes in the Estimates: There is an facility is open from 8:30 a.m. to 4 p.m., activity-driven reporting and increase of 19,168 hours in the total Monday through Friday, excluding legal recordkeeping requirements for those estimated burden currently identified in holidays. The docket telephone number who intend to conduct research for the OMB Inventory of Approved ICR is (703) 305–5805. submission to EPA under the pesticide Burdens. This increase is an adjustment Use EPA’s electronic docket and laws. If such research involves to the estimate, based on input received comment system at intentional dosing of human subjects, during the consultation process from www.regulations.gov, to submit or view these individuals (respondents) are entities that have submitted human public comments, access the index required to submit study protocols to subjects research since the listing of the contents of the docket, and EPA and a cognizant local Human implementation of the rule. The burden to access those documents in the docket Subjects IRB before such research is estimates in the previous (new) ICR that are available electronically. Once in initiated so that the scientific design were developed before the rule was

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implemented, and were based on EPA’s Ave., NW., Washington, DC 20460– not publicly available, e.g., CBI or other predictions of how long it would take 0001. information whose disclosure is study sponsors to prepare submissions. • Hand Delivery: OPPT Document restricted by statute. Certain other Based on the information provided in Control Office (DCO), EPA East Bldg., material, such as copyrighted material, the consultation responses, it appears Rm. 6428, 1201 Constitution Ave., NW., will be publicly available only in hard that the actual amount of time necessary Washington, DC. Attention: Docket ID copy. Publicly available docket to comply with the paperwork and Number EPA–HQ–OPPT–2008–0864. materials are available electronically at recordkeeping requirements is higher The DCO is open from 8 a.m. to 4 p.m., http://www.regulations.gov, or, if only than originally estimated. Monday through Friday, excluding legal available in hard copy, at the OPPT holidays. The telephone number for the Dated: December 8, 2008. Docket. The OPPT Docket is located in DCO is (202) 564–8930. Such deliveries the EPA Docket Center (EPA/DC) at Rm. John Moses, are only accepted during the DCO’s 3334, EPA West Bldg., 1301 Acting Director, Collection Strategies normal hours of operation, and special Constitution Ave., NW., Washington, Division. arrangements should be made for DC. The EPA/DC Public Reading Room [FR Doc. E8–29483 Filed 12–11–08; 8:45 am] deliveries of boxed information. hours of operation are 8:30 a.m. to 4:30 BILLING CODE 6560–50–P Instructions: Direct your comments to p.m., Monday through Friday, excluding docket ID number EPA–HQ–OPPT– Federal holidays. The telephone number 2008–0864. EPA’s policy is that all of the EPA/DC Public Reading Room is ENVIRONMENTAL PROTECTION comments received will be included in (202) 566–1744, and the telephone AGENCY the docket without change and may be number for the OPPT Docket is (202) [EPA–HQ–OPPT–2008–0864; FRL–8393–4] made available on-line at http:// 566–0280. Docket visitors are required www.regulations.gov, including any to show photographic identification, Certain New Chemicals; Receipt and personal information provided, unless pass through a metal detector, and sign Status Information the comment includes information the EPA visitor log. All visitor bags are claimed to be Confidential Business processed through an X-ray machine AGENCY: Environmental Protection Information (CBI) or other information and subject to search. Visitors will be Agency (EPA). whose disclosure is restricted by statute. provided an EPA/DC badge that must be ACTION: Notice. Do not submit information that you visible at all times in the building and consider to be CBI or otherwise SUMMARY: Section 5 of the Toxic returned upon departure. Substances Control Act (TSCA) requires protected through regulations.gov or e- FOR FURTHER INFORMATION CONTACT: mail. The regulations.gov website is an any person who intends to manufacture Colby Lintner, Regulatory Coordinator, ‘‘anonymous access’’ system, which (defined by statute to include import) a Environmental Assistance Division, means EPA will not know your identity new chemical (i.e., a chemical not on Office of Pollution Prevention and or contact information unless you the TSCA Inventory) to notify EPA and Toxics (7408M), Environmental provide it in the body of your comment. comply with the statutory provisions Protection Agency, 1200 Pennsylvania If you send an e-mail comment directly pertaining to the manufacture of new Ave., NW., Washington, DC 20460– to EPA without going through chemicals. Under sections 5(d)(2) and 0001; telephone number: (202) 554– regulations.gov, your e-mail address 5(d)(3) of TSCA, EPA is required to 1404; e-mail address: TSCA- will be automatically captured and publish a notice of receipt of a [email protected]. included as part of the comment that is premanufacture notice (PMN) or an placed in the docket and made available SUPPLEMENTARY INFORMATION: application for a test marketing on the Internet. If you submit an I. General Information exemption (TME), and to publish electronic comment, EPA recommends periodic status reports on the chemicals that you include your name and other A. Does this Action Apply to Me? under review and the receipt of notices contact information in the body of your This action is directed to the public of commencement to manufacture those comment and with any disk or CD-ROM in general. As such, the Agency has not chemicals. This status report, which you submit. If EPA cannot read your attempted to describe the specific covers the period from October 20, 2008 comment due to technical difficulties entities that this action may apply to. through October 31, 2008, consists of and cannot contact you for clarification, Although others may be affected, this the PMNs or expired, and the notices of EPA may not be able to consider your action applies directly to the submitter commencement to manufacture a new comment. Electronic files should avoid of the premanufacture notices addressed chemical that the Agency has received the use of special characters, any form in the action. If you have any questions under TSCA section 5 during this time of encryption, and be free of any defects regarding the applicability of this action period. or viruses. For additional information to a particular entity, consult the person DATES: Comments identified by the about EPA’s public docket, visit the EPA listed under FOR FURTHER INFORMATION specific PMN number or TME number, Docket Center homepage at http:// CONTACT. must be received on or before January www.epa.gov/epahome/dockets.htm. 12, 2009. Docket: All documents in the docket B. What Should I Consider as I Prepare My Comments for EPA? ADDRESSES: Submit your comments, are listed in the docket index available identified by docket identification (ID) in regulations.gov. To access the 1. Submitting CBI. Do not submit this number EPA–HQ–OPPT–2008–0864, by electronic docket, go to http:// information to EPA through one of the following methods: www.regulations.gov, select ‘‘Advanced regulations.gov or e-mail. Clearly mark • Federal eRulemaking Portal: http:// Search,’’ then ‘‘Docket Search.’’ Insert the part or all of the information that www.regulations.gov. Follow the on-line the docket ID number where indicated you claim to be CBI. For CBI instructions for submitting comments. and select the ‘‘Submit’’ button. Follow information in a disk or CD-ROM that • Mail: Document Control Office the instructions on the regulations.gov you mail to EPA, mark the outside of the (7407M), Office of Pollution Prevention website to view the docket index or disk or CD-ROM that you mail to EPA, and Toxics (OPPT), Environmental access available documents. Although mark the outside of the disk or CD-ROM Protection Agency, 1200 Pennsylvania listed in the index, some information is as CBI and then identify electronically

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within the disk or CD-ROM the specific your estimate in sufficient detail to the PMNs or expired, and the notices of information that is claimed as CBI. In allow for it to be reproduced. commencement to manufacture a new addition to one complete version of the vi. Provide specific examples to chemical that the Agency has received comment that includes information illustrate your concerns and suggest under TSCA section 5 during this time claimed as CBI, a copy of the comment alternatives. period. that does not contain the information vii. Explain your views as clearly as III. Receipt and Status Report for PMNs claimed as CBI must be submitted for possible, avoiding the use of profanity inclusion in the public docket. or personal threats. This status report identifies the PMNs Information so marked will not be viii. Make sure to submit your or expired, and the notices of disclosed except in accordance with comments by the comment period commencement to manufacture a new procedures set forth in 40 CFR part 2. deadline identified. 2. Tips for preparing your comments. chemical that the Agency has received When submitting comments, remember II. Why is EPA Taking this Action? under TSCA section 5 during this time to: period. If you are interested in i. Identify the document by docket ID Section 5 of TSCA requires any information that is not included in the number and other identifying person who intends to manufacture following tables, you may contact EPA information (subject heading, Federal (defined by statute to include import) a as described in Unit I. to access Register date and page number). new chemical (i.e., a chemical not on additional non-CBI information that ii. Follow directions. The Agency may the TSCA Inventory) to notify EPA and may be available. comply with the statutory provisions ask you to respond to specific questions In Table I of this unit, EPA provides or organize comments by referencing a pertaining to the manufacture of new the following information (to the extent Code of Federal Regulations (CFR) part chemicals. Under sections 5(d)(2) and that such information is not claimed as or section number. 5(d)(3) of TSCA, EPA is required to iii. Explain why you agree or disagree; publish a notice of receipt of a PMN or CBI) on the PMNs received by EPA suggest alternatives and substitute an application for a TME and to publish during this period: the EPA case number language for your requested changes. periodic status reports on the chemicals assigned to the PMN; the date the PMN iv. Describe any assumptions and under review and the receipt of notices was received by EPA; the projected end provide any technical information and/ of commencement to manufacture those date for EPA’s review of the PMN; the or data that you used. chemicals. This status report, which submitting manufacturer; the potential v. If you estimate potential costs or covers the period from October 20, 2008 uses identified by the manufacturer in burdens, explain how you arrived at through October 31, 2008, consists of the PMN; and the chemical identity.

I. 24 PREMANUFACTURE NOTICES RECEIVED FROM: 10/20/08 TO 10/31/08

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

P–09–0025 10/20/08 01/17/09 CBI (G) Additive for polymers (G) Polyacrylic P–09–0026 10/20/08 01/17/09 CBI (G) Additive, open, non-dispersive (G) 2-(dimethylamino)ethyl methyl-2- use propenoate, polymer with alkyl-sub- stituted 2-methyl-2-propenoate and arylsubstituted methyl-2- propanoate, P–09–0027 10/20/08 01/17/09 CBI (G) Component of a pressure sen- (G) Functionalized benzophenone sitive adhesive P–09–0028 10/20/08 01/17/09 CBI (G) Acrylic pressure sensitive adhe- (G) Acrylic solution polymer sive P–09–0029 10/23/08 01/20/09 CBI (S) Polyester acrylate oligomer used (G) Polyester acrylate in the manufacture of ultra violet curable coatings. P–09–0030 10/23/08 01/20/09 CBI (S) Polyester acrylate used in uv cur- (G) Polyester acrylate able inks and coatings. P–09–0031 10/24/08 01/21/09 CBI (G) Binder resin for use in printing ap- (G) Methacrylic polymer plications. P–09–0032 10/27/08 01/24/09 CBI (G) Textile treatment additive (G) Fluoroalkyl methacrylate copoly- mer P–09–0033 10/27/08 01/24/09 CBI (G) Textile treatment additive (G) Fluoroalkyl methacrylate copoly- mer P–09–0034 10/27/08 01/24/09 CBI (G) Carpet treatment additive (G) Fluoroalkyl methacrylate copoly- mer P–09–0035 10/27/08 01/24/09 CBI (G) Carpet treatment additive (G) Fluoroalkyl methacrylate copoly- mer P–09–0036 10/27/08 01/24/09 CBI (G) Textile treatment additive (G) Fluoroalkyl methacrylate copoly- mer P–09–0037 10/27/08 01/24/09 CBI (G) Textile treatment additive (G) Fluoroalkyl methacrylate copoly- mer P–09–0038 10/29/08 01/26/09 Incorez Corporation (G) Curing agent for polyurethane (G) Reaction product of aldehyde and systems cyclic amine P–09–0039 10/29/08 01/26/09 Coim USA Inc. (S) Copying machine roller manufac- (G) TDI polyester prepolymer ture; squeegee manufacture P–09–0040 10/29/08 01/26/09 CBI (S) Copying machine roller manufac- (G) MDI polyester prepolymer ture; squeegee manufacture

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I. 24 PREMANUFACTURE NOTICES RECEIVED FROM: 10/20/08 TO 10/31/08—Continued

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

P–09–0041 10/30/08 01/27/09 Coim USA Inc. (S) Flexible foam manufacturer; (S) Decanedioic acid, polymer with chemical raw material for 2,2-dimethyl-1,3-propanediol and prepolymer manufacture 1,6-hexanediol P–09–0042 10/30/08 01/27/09 CBI (G) Anionic surfactant (G) Alkoxy phosphate ester salt P–09–0044 10/30/08 01/27/09 Materia Inc. (S) Methathesis catalyst (S) Ruthenium [1,3-bis(2,4,6- trimethylphenyl)-2- imidazolidinylidene]dichloro[[2-(1- methylethoxy- .kappa.O)phenyl]methylene- .kappa.C]-, (SP-5-41]- P–09–0045 10/31/08 01/28/09 CBI (S) Chemical intermediate for (S) Propanol, 1(or 2)-(methyl-2- surfactants; formulation component phenoxyethoxy)- for drilling fluid (mining aid) P–09–0046 10/31/08 01/28/09 CBI (G) Thermoset adhesive performance (S) Cyclosilanes, 3-[2-hydroxy-3-[(2- enhancing additive methyl-1-oxo-2-propen-1- yl)oxy]propoxy]propyl ME, 3-[3-hy- droxy-2-[(2-methyl-1-oxo-2-propen- 1-yl)oxy]propoxy]propyl ME, ME 3- (2-oxiranylmethoxy)propyl P–09–0047 10/31/08 01/28/09 3M Company (G) Surface modifier (G) Alkyl carboxyl polyester acrylate P–09–0048 10/31/08 01/28/09 3M Company (G) Film coating additive (G) Surface modified ceramic par- ticles P–09–0049 10/31/08 01/28/09 CBI (G) Detergents and cleaner additive (G) Acrylic copolymer

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

II. 5 NOTICES OF COMMENCEMENT FROM: 10/20/08 TO 10/31/08

Commencement Case No. Received Date Notice End Date Chemical

P–05–0820 10/28/08 10/23/08 (G) Polyacrylate resin P–06–0299 10/20/08 10/08/08 (S) 1,6-hexanediaminium, N,N,N,N′,N′,N′, -hexamethyl-,dibromide P–08–0286 10/29/08 10/23/08 (G) Fatty acids, polymers with 2-[[4-(1,1-dimethylethyl)phenoxy]methyl]oxirane, glycidyl PH ether, fatty acid dimers and polyalkylenepolyamines P–08–0432 10/23/08 10/03/08 (G) Phenol-xylylene resin P–08–0452 10/17/08 09/30/08 (G) Urethane prepolymer (polyether polyol react with organic isocyanate)

List of Subjects SUMMARY: Section 5 of the Toxic chemical that the Agency has received Environmental protection, Chemicals, Substances Control Act (TSCA) requires under TSCA section 5 during this time Premanufacturer notices. any person who intends to manufacture period. (defined by statute to include import) a DATES: Comments identified by the Dated: December 3, 2008. new chemical (i.e., a chemical not on specific PMN number or TME number, Chandler Sirmons, the TSCA Inventory) to notify EPA and must be received on or before January Acting Director, Information Management comply with the statutory provisions 12, 2009. Division, Office of Pollution Prevention and pertaining to the manufacture of new Toxics. ADDRESSES: Submit your comments, chemicals. Under sections 5(d)(2) and identified by docket identification (ID) [FR Doc. E8–29464 Filed 12–11–08; 8:45 am] 5(d)(3) of TSCA, EPA is required to number EPA–HQ–OPPT–2008–0865, by BILLING CODE 6560–50–S publish a notice of receipt of a one of the following methods: premanufacture notice (PMN) or an • Federal eRulemaking Portal: http:// application for a test marketing www.regulations.gov. Follow the on-line ENVIRONMENTAL PROTECTION exemption (TME), and to publish AGENCY instructions for submitting comments. periodic status reports on the chemicals • Mail: Document Control Office [EPA–HQ–OPPT–2008–0865; FRL–8393–5] under review and the receipt of notices (7407M), Office of Pollution Prevention of commencement to manufacture those and Toxics (OPPT), Environmental Certain New Chemicals; Receipt and chemicals. This status report, which Protection Agency, 1200 Pennsylvania Status Information covers the period from November 3, Ave., NW., Washington, DC 20460– 2008 through November 14, 2008, 0001. AGENCY: Environmental Protection • Agency (EPA). consists of the PMNs pending or Hand Delivery: OPPT Document expired, and the notices of Control Office (DCO), EPA East Bldg., ACTION: Notice. commencement to manufacture a new Rm. 6428, 1201 Constitution Ave., NW.,

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Washington, DC. Attention: Docket ID copy. Publicly available docket that does not contain the information Number EPA–HQ–OPPT–2008–0865. materials are available electronically at claimed as CBI must be submitted for The DCO is open from 8 a.m. to 4 p.m., http://www.regulations.gov, or, if only inclusion in the public docket. Monday through Friday, excluding legal available in hard copy, at the OPPT Information so marked will not be holidays. The telephone number for the Docket. The OPPT Docket is located in disclosed except in accordance with DCO is (202) 564–8930. Such deliveries the EPA Docket Center (EPA/DC) at Rm. procedures set forth in 40 CFR part 2. are only accepted during the DCO’s 3334, EPA West Bldg., 1301 2. Tips for preparing your comments. normal hours of operation, and special Constitution Ave., NW., Washington, When submitting comments, remember arrangements should be made for DC. The EPA/DC Public Reading Room to: deliveries of boxed information. hours of operation are 8:30 a.m. to 4:30 i. Identify the document by docket ID Instructions: Direct your comments to p.m., Monday through Friday, excluding number and other identifying docket ID number EPA–HQ–OPPT– Federal holidays. The telephone number information (subject heading, Federal 2008–0865. EPA’s policy is that all of the EPA/DC Public Reading Room is Register date and page number). comments received will be included in (202) 566–1744, and the telephone ii. Follow directions. The Agency may the docket without change and may be number for the OPPT Docket is (202) ask you to respond to specific questions made available on-line at http:// 566–0280. Docket visitors are required or organize comments by referencing a www.regulations.gov, including any to show photographic identification, Code of Federal Regulations (CFR) part personal information provided, unless pass through a metal detector, and sign or section number. the comment includes information the EPA visitor log. All visitor bags are iii. Explain why you agree or disagree; claimed to be Confidential Business processed through an X-ray machine suggest alternatives and substitute Information (CBI) or other information and subject to search. Visitors will be language for your requested changes. whose disclosure is restricted by statute. provided an EPA/DC badge that must be iv. Describe any assumptions and Do not submit information that you visible at all times in the building and provide any technical information and/ consider to be CBI or otherwise returned upon departure. or data that you used. protected through regulations.gov or e- FOR FURTHER INFORMATION CONTACT: v. If you estimate potential costs or mail. The regulations.gov website is an Colby Lintner, Regulatory Coordinator, burdens, explain how you arrived at ‘‘anonymous access’’ system, which Environmental Assistance Division, your estimate in sufficient detail to means EPA will not know your identity Office of Pollution Prevention and allow for it to be reproduced. or contact information unless you Toxics (7408M), Environmental vi. Provide specific examples to provide it in the body of your comment. Protection Agency, 1200 Pennsylvania illustrate your concerns and suggest If you send an e-mail comment directly Ave., NW., Washington, DC 20460– alternatives. to EPA without going through 0001; telephone number: (202) 554– vii. Explain your views as clearly as regulations.gov, your e-mail address 1404; e-mail address: TSCA- possible, avoiding the use of profanity will be automatically captured and [email protected]. or personal threats. included as part of the comment that is viii. Make sure to submit your SUPPLEMENTARY INFORMATION: placed in the docket and made available comments by the comment period on the Internet. If you submit an I. General Information deadline identified. electronic comment, EPA recommends A. Does this Action Apply to Me? II. Why is EPA Taking this Action? that you include your name and other contact information in the body of your This action is directed to the public Section 5 of TSCA requires any comment and with any disk or CD-ROM in general. As such, the Agency has not person who intends to manufacture you submit. If EPA cannot read your attempted to describe the specific (defined by statute to include import) a comment due to technical difficulties entities that this action may apply to. new chemical (i.e., a chemical not on and cannot contact you for clarification, Although others may be affected, this the TSCA Inventory to notify EPA and EPA may not be able to consider your action applies directly to the submitter comply with the statutory provisions comment. Electronic files should avoid of the premanufacture notices addressed pertaining to the manufacture of new the use of special characters, any form in the action. If you have any questions chemicals. Under sections 5(d)(2) and of encryption, and be free of any defects regarding the applicability of this action 5(d)(3) of TSCA, EPA is required to or viruses. For additional information to a particular entity, consult the person publish a notice of receipt of a PMN or about EPA’s public docket, visit the EPA listed under FOR FURTHER INFORMATION an application for a TME and to publish Docket Center homepage at http:// CONTACT. periodic status reports on the chemicals www.epa.gov/epahome/dockets.htm. under review and the receipt of notices B. What Should I Consider as I Prepare Docket: All documents in the docket of commencement to manufacture those My Comments for EPA? are listed in the docket index available chemicals. This status report, which in regulations.gov. To access the 1. Submitting CBI. Do not submit this covers the period from November 3, electronic docket, go to http:// information to EPA through 2008 through November 14, 2008, www.regulations.gov, select ‘‘Advanced regulations.gov or e-mail. Clearly mark consists of the PMNs pending or Search,’’ then ‘‘Docket Search.’’ Insert the part or all of the information that expired, and the notices of the docket ID number where indicated you claim to be CBI. For CBI commencement to manufacture a new and select the ‘‘Submit’’ button. Follow information in a disk or CD-ROM that chemical that the Agency has received the instructions on the regulations.gov you mail to EPA, mark the outside of the under TSCA section 5 during this time website to view the docket index or disk or CD-ROM that you mail to EPA, period. access available documents. Although mark the outside of the disk or CD-ROM listed in the index, some information is as CBI and then identify electronically III. Receipt and Status Report for PMNs not publicly available, e.g., CBI or other within the disk or CD-ROM the specific This status report identifies the PMNs information whose disclosure is information that is claimed as CBI. In pending or expired, and the notices of restricted by statute. Certain other addition to one complete version of the commencement to manufacture a new material, such as copyrighted material, comment that includes information chemical that the Agency has received will be publicly available only in hard claimed as CBI, a copy of the comment under TSCA section 5 during this time

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period. If you are interested in In Table I of this unit, EPA provides was received by EPA; the projected end information that is not included in the the following information (to the extent date for EPA’s review of the PMN; the following tables, you may contact EPA that such information is not claimed as submitting manufacturer; the potential as described in Unit I. to access CBI) on the PMNs received by EPA uses identified by the manufacturer in additional non-CBI information that during this period: the EPA case number the PMN; and the chemical identity. may be available. assigned to the PMN; the date the PMN

I. 21 PREMANUFACTURE NOTICES RECEIVED FROM: 11/03/08 TO 11/14/08

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

P–09–0051 11/04/08 02/01/09 CBI (G) Additive for polymers (G) Polyacrylic P–09–0052 11/05/08 02/02/09 CBI (S) Latent catalyst for specialty coat- (G) Dodecylbenzene sulfonic acid, ings, appliance coatings, coil coat- complex with aliphatic alkanolamine ing, can coatings, wood, etc; P–09–0053 11/05/08 02/02/09 CBI (S) Latent catalyst for specialty coat- (G) Toluenesulfonic acid, salt with ali- ings, appliance coatings, coil coat- phatic alkanolamine ing, can coatings, wood, etc; P–09–0054 11/05/08 02/02/09 Nano-C. Inc. (S) (1) Compound for use in organic (S) [5,6]fullerene-C60-ih electronic devices. (2) Compound used to improve the mechanical properties of rubbers, plastics, and lubricants. (3) Compound for use as an additve to increase the con- ductivity of materials. P–09–0055 11/05/08 02/02/09 Nano-C. Inc. (S) (1) Compound for use in organic (S) [5,6]fullerene-C70-d5h(6) electronic devices. (2) Compound used to improve the mechanical properties of rubbers, plastics, and lubricants. (3) Compound for use as an additve to increase the con- ductivity of materials P–09–0056 11/05/08 02/02/09 Nano-C. Inc. (S) (1) Compound for use in organic (S) [5,6]fullerene-C84-d2 electronic devices. (2) Compound used to improve the mechanical properties of rubbers, plastics, and lubricants. (3) Compound for use as an additve to increase the con- ductivity of materials. P–09–0057 11/05/08 02/02/09 Nano-C. Inc. (S) (1) Compound for use in organic (S) [5,6]fullerene-C84-d2d electronic devices. (2) Compound used to improve the mechanical properties of rubbers, plastics, and lubricants. (3) Compound for use as an additve to increase the con- ductivity of materials. P–09–0058 11/06/08 02/03/09 CBI (G) Oilfield production chemical (G) Alkenylsuccinicanhydride deriva- tive P–09–0059 11/06/08 02/03/09 CBI (G) Coatings (G) Urethane methacrylate P–09–0060 11/07/08 02/04/09 CBI (S) Waterborne urethane acrylate (G) Polyurethane oligomer used in wood coatings by kitchen cabinet makers P–09–0061 11/07/08 02/04/09 Dupont Agricultural (S) Industrial intermediate (G) Hydroxy-chloro-cyclopropyl- Caribe Industries, heteromonocycliccarboxylic acid Ltd P–09–0062 11/07/08 02/04/09 3M (G) Battery additive (G) Alkyl aryl ether P–09–0063 11/07/08 02/04/09 Dupont Agricultural (S) Industrial intermediate (G) Amino-chloro-cyclopropyl- Caribe Industries, heteromonocycliccarboxylic acid Ltd P–09–0064 11/07/08 02/04/09 CBI (G) Coloration auxiliary for cellulosic (G) Substituted sulfonated phenylazo materials and substrates naphthalene sufonic acid salt P–09–0065 11/10/08 02/07/09 CBI (G) A lubricant additive for engines (G) Benzoic acid phenyl ester P–09–0066 11/10/08 02/07/09 CBI (G) A lubricant additive for engines (G) Benzoic acid phenyl ester P–09–0067 11/12/08 02/09/09 CBI (G) Binder resin ingredient (G) Polyester resin amine salt P–09–0068 11/12/08 02/09/09 CBI (G) Lubricant additive (G) Alkoxylated alkyl phosphate, bis(alkyl)amine salt P–09–0069 11/13/08 02/10/09 Meadwestvaco Cor- (S) Asphalt emulsifer (G) Amides, from lignin, tall oil fatty poration acids, C21 dicarboxylic acids and polyalkanolamines. P–09–0070 11/13/08 02/10/09 Meadwestvaco Cor- (S) Asphalt emulsifer salt (G) Amides, from lignin, tall oil fatty poration acids, C21 dicarboxylic acids and polyalkanolamines, hydrochlorides

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

II. 10 NOTICES OF COMMENCEMENT FROM: 11/03/08 TO 11/14/08

Commencement Case No. Received Date Notice End Date Chemical

P–06–0469 11/10/08 10/22/08 (G) Chlorinated polyester resin P–07–0348 10/31/08 10/29/08 (G) Copolymer based on sulfonic acid monomer P–08–0127 11/10/08 11/05/08 (S) 2-hexenoic acid, 2-methyl-, methyl ester, (2)- P–08–0191 10/31/08 10/22/08 (G) Modified polyamine P–08–0192 10/31/08 10/23/08 (G) Modified polyamine P–08–0382 11/05/08 10/27/08 (G) Propenenitrile, reaction products with alkylenediamine, hydrogenated, N-aryl derivates P–08–0499 11/05/08 10/29/08 (S) Arylesterase - The CAS registy number (9032–73–9) was determined by using the enzyme classification number for this enzyme. arylesterase (EC# 3.1.1.2) is referenced in the Brenda Comprehensive Enzyme Information Sys- tem and in the expasy enzyme database. Synonyms are paraoxonase and alpha-esterase. The systematic name is aryl-ester hydrolase. Arylesterases act on many phenolic esters. It is likely that the three forms of human paraoxonase are lactonases rather than aromatic esterases [7,8]. The natural substrates of the paraoxonases are lactones, with ()-5-hydroxy-6E,8Z,11Z,4Z- eicostetraenoic-acid 1,5-lactone being the best substrate P–08–0528 11/05/08 10/16/08 (S) Butanoic acid, 2-methyl-, 5-hexen-1-yl ester P–08–0529 11/06/08 10/21/08 (G) 1,2,3 - propanetriol, homopolymer, ether with aliphatic alcohol P–08–0553 11/06/08 10/20/08 (G) Polycarbonate polyurethane acrylate oligomer

List of Subjects Summary: EPA expressed Forest (SCNF), Proposes Travel Environmental protection, Chemicals, environmental concerns about air Planning and OHV Route Designation, Premanufacturer notices. quality, water quality and stormwater Lemhi, Custer and Butte Counties, ID. impacts, and requested that the final EIS Summary: EPA expressed Dated: December 3, 2008. and ROD commit to all stated mitigation environmental concerns about potential Chandler Sirmons, measures. Rating EC1. impacts to water quality, fish habitat, Acting Director, Information Management EIS No. 20080292, ERP No. D–IBR– noxious weed infestations and air Division, Office of Pollution Prevention and K65343–CA, Millerton Lake Resource quality. EPA recommends increased Toxics. Management Plan (RMP) and General restrictions in vulnerable watersheds, [FR Doc. E8–29466 Filed 12–11–08; 8:45 am] Plan, Implementation, Fresno and especially for motorized dispersed BILLING CODE 6560–50–S Madera Counties, CA. camping and for crossing streams and Summary: EPA expressed wet meadows. Rating EC2. environmental concerns about EIS No. 20080381, ERP No. D–IBR– ENVIRONMENTAL PROTECTION K39115–CA, South Coast Conduit/ AGENCY environmental resource and noise impacts. EPA also requested additional Upper Reach Reliability Project, [ER–FRL–8588–5] information on climate change, funding, Construction of a Second Water and enforcement. Rating EC2. Pipeline for Improving Water Supply, Environmental Impact Statements and U.S. Army COE section 10 and 404 Regulations; Availability of EPA EIS No. 20080293, ERP No. D–IBR– Permits, Santa Barbara County, CA. Comments K65344–CA, Cachuma Lake Resource Management Plan, Implementation, Summary: EPA continues to have environmental concerns about impacts Availability of EPA comments Cachuma Lake, Santa Barbara County, to aquatic resources and oak woodland prepared pursuant to the Environmental CA. Review Process (ERP), under section habitat. Rating EC2. Summary: EPA expressed EIS No. 20080388, ERP No. D–AFS– 309 of the Clean Air Act and section environmental concerns about air 102(2)(c) of the National Environmental L65559–OR, BLT Project, Proposed quality, water quality and cumulative Vegetation Management Activities, Policy Act as amended. Requests for impacts. Rating EC2. copies of EPA comments can be directed Crescent Ranger District, Deschutes EIS No. 20080314, ERP No. D–NOA– to the Office of Federal Activities at National Forest, Deschutes County, L39067–OR, Elliott State Forest 202–564–7146. An explanation of the OR. Habitat Conservation Plan, Proposed ratings assigned to draft environmental Summary: EPA expressed Issuance of an Incidental Take Permit, impact statements (EISs) was published environmental concerns about air US Army Corps section 10 and 404 in FR dated April 6, 2008 (73 FR 19833). quality and visibility, water quality, and Permits, Coos and Douglas Counties, health impacts. Rating EC2. Draft EISs OR. EIS No. 20080391, ERP No. D–FHW– EIS No. 20080282, ERP No. D–UPS– Summary: EPA expressed F40444–MN, Trunk Highway 14 (US K80007–CA, Aliso Viejo Incoming environmental concerns about impacts 14) Project, Proposed Construction Mail Facility, Proposed Construction to headwater streams and aquatic from Interstate 35 to Trunk Highway and Operation of a Mail Processing resources. Rating EC2. 56, Funding, NPDES and U.S. Army Facility on a 25-Acre Parcel, Aliso EIS No. 20080372, ERP No. D–AFS– COE section 404 Permits, Steele and Viejo, Orange County, CA. L65558–ID, Salmon-Challis National Doge Counties, MN.

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Summary: EPA expressed source aquifers and protected Manhattan Campus Site, Propose to environmental concerns about wetland geothermal resources. Site, Construct and Operate at one of and noise impacts. EPA also EIS No. 20080430, ERP No. F–COE– the Proposed Locations: (1) South recommended green construction and K39114–CA, Three Rivers Levee Milledge Avenue Site, Clarke County, development practices. Rating EC2. Improvement Authority, proposes GA; (2) Manhattan Campus Site, Riley EIS No. 20080330, ERP No. DS–COE– construct and maintain the Feather County, KS; (3) Flora Industrial Park E11060–NC, Topsail Beach Interim River Levee Repair Project, Segment Site, Madison County, MS; (4) Plum (Emergency) Beach Fill Project— 2, Issuing 408 Permission and 404 Island Site, Suffolk County, NY; (5) Permit Request, Proposal to Place Permit, Yuba County, CA. Umstead Research Park Site, Granville Sand on 4.7 miles of the Town’s Summary: EPA continues to have County, NC; and (6) Texas Research Shoreline to Protect the Dune environmental concerns and Park Site, Bexar and Medina Counties, Complex and Oceanfront recommends sustainable agricultural TX, Wait Period Ends: 01/12/2009, Development, Onslow and Pender practices to reduce impacts to water Contact: James V. Johnson, 202–254– Counties, NC. quality and requested review of the Best 6098. EIS No. 20080501, Final EIS, AFS, 00, Summary: EPA expressed Management Practices Plan required by Wild and Scenic River Suitability environmental concerns about borrow the State of California. Study for National Forest System site impacts to Lea/Hutaff Island. EPA EIS No. 20080444, ERP No. F–NPS– Lands on the Ashley, Dixie, Fishlake, requested clarification on beach erosion, K65334–HI, PROGRAMMATIC EIS— Manti-La Sal, Uinta and Wasatch- and the assumptions of beachfront real Ala Kahakai National Historic Trail Cache National Forests in UT and estate values used in the economic Comprehensive Management Plan, To Portion of National Forests extend impact analysis. Rating EC2. Provide Long-Term Direction for into Colorado and Wyoming, several EIS No. 20080364, ERP No. DS–NPS– Natural and Cultural Resource, Island counties, UT, Montrose County, CO E61077–GA, Chattahoochee River of Hawaii, HI. and Uinta County, WY, Wait Period National Recreation Area General Summary: EPA does not object to the Ends: 01/12/2009, Contact: Catherine Management Plan, Updated proposed project. Kahlow, 801–236–3412. Information on Analyzing Six EIS No. 20080410, ERP No. FA–FTA– EIS No. 20080502, Draft EIS, FTA, WA, Alternative Future Directions for the K40208–CA, South Sacramento East Link Rail Transit Project, Management and Use of Corridor Phase 2, Improve Transit Proposes to Construct and Operate an Chattachoochee River National Service and Enhance Regional Extension of the Light Rail System Recreation Area, Implementation, Connectivity, Funding, in the City from downtown Seattle to Mercer Chattahoochee River, Atlanta, GA. and County Sacramento, CA. Island, Bellevue, and Redmond via Summary: EPA does not object to the Summary: EPA does not object to the Interstate 90, Funding and U.S. Army proposed project. Rating LO. proposed project. COE Section 404 and 10 Permits, Seattle, WA, Comment Period Ends: Final EISs Dated: December 9, 2008. 02/25/2009, Contact: Johnn Witmer, EIS No. 20080355, ERP No. F–AFS– Robert W. Hargrove, 206–220–7964. L65489–OR, Ashland Forest Resiliency Director, NEPA Compliance Division, Office EIS No. 20080503, Draft EIS, NRC, PA, Project, To Recover from Large-Scale of Federal Activities. GENERIC—License Renewal of High-Severity Wild Land Fire, Upper [FR Doc. E8–29489 Filed 12–11–08; 8:45 am] Nuclear Plants, Supplement 37 to Bear Analysis Area, Ashland Ranger BILLING CODE 6560–50–P NUREG–1437, Regarding Three Mile District, Rogue River-Siskiyou National Island Nuclear Station, Unit 1, in Forest, Jackson County, OR. Londonterry Township in Dauphin Summary: The Final EIS addressed ENVIRONMENTAL PROTECTION County, PA, Comment Period Ends: EPA’s concerns about potential impacts AGENCY 03/04/2009, Contact: Sarah L. Lopas from sediment to drinking water; [ER–FRL–8588–4] 301–415–1147. therefore, EPA does not object to the EIS No. 20080504, Final EIS, FRC, MD, proposed action. Environmental Impacts Statements; Sparrows Point Liquefied Natural Gas EIS No. 20080424, ERP No. F–NOA– Notice of Availability (LNG) Import Terminal Expansion E91025–00, Reef Fish Amendment and Natural Gas Pipeline Facilities, Responsible Agency: Office of Federal Construction and Operation, 30B: Gag-End Overfishing and Set Activities, General Information (202) Management Thresholds and Targets; Application Authorization, U.S. COE 564–1399 or http://www.epa.gov/ Section 10 and 404 Permits, Baltimore Red Grouper—Set Optimum Yield, compliance/nepa/. Total Allowable Catch (TAC), and County, MD, Wait Period Ends: 01/12/ Weekly receipt of Environmental Impact 2009, Contact: Patricia Schaub, 1– Management Measures: Area Statements. Closures: and Federal Regulatory 866–208–3372. Filed 12/01/2008 through 12/05/2008. EIS No. 20080505, Final EIS, FHW, IN, Compliance, Implementation, Gulf of Pursuant to 40 CFR 1506.9. US 31 Improvement Project (I–465 to Mexico. EIS No. 20080499, Final EIS, NPS, MD, IN 38), between I–465 North Leg and Summary: No formal comment letter White-Tailed Deer Management Plan, IN–38, NPDES Permit and U.S. Army was sent to the preparing agency. Preferred Alternative is Alternative C, Section 10 and 404 Permits, Hamilton EIS No. 20080429, ERP No. F–BLM– Implementation, Catocin Mountain County, IN, Wait Period Ends: 01/12/ A09825–00, PROGRAMMATIC— Park, Frederick and Washington 2009, Contact: Larry Heil, 317–226– Geothermal Leasing in the Western Counties, MD, Wait Period Ends: 01/ 7480. United States. 12/2009, Contact: Sean Denniston, EIS No. 20080506, Draft EIS, USA, GA, Summary: EPA continues to have 301–416–0536. Maneuver Center of Excellence at Fort environmental concerns about EIS No. 20080500, Final EIS, DHS, 00, Benning, Georgia Project, Proposed groundwater quantity and quality National Bio and Agro-Defense Community Services, Personnel impacts, especially where there are sole Facility, Preferred Alternative is (2) Support, Classroom Barracks, and

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Dining Facilities would be Corridor Project, Provide High- DATES: The document will be available Constructed in three of the four Capacity Transit Service on O’ahu on or about December 12, 2008. Cantonment Areas, Fort Benning, GA, from Kapolei to the University of ADDRESSES: The ‘‘Integrated Science Comment Period Ends: 01/26/2009, Hawaii at Manoa and Waikiki, City Assessment for Oxides of Nitrogen and Contact: Bob Ross, 703–602–2878. and County of Honolulu, O’ahu, Sulfur—Environmental Criteria’’ will be EIS No. 20080507, Final EIS, FHW, CA, Hawaii, Comment Period Ends: 01/07/ available primarily via the Internet on CA–76 Corridor Project, 2009, Contact: Ted Matley, 415–744– the National Center for Environmental Transportation Improvements from 3133. Revision to FR Notice Published Assessment’s home page under the Melrose Drive to South Mission Road, 11/21/2008: Correction to the Federal Recent Additions and Publications San Diego County, CA, Wait Period Agency. menus at http://www.epa.gov/ncea. A Ends: 01/16/2009, Contact: Susanne EIS No. 20080497, Draft EIS, STA, 00, limited number of CD–ROM or paper Glasgow, 619–688–0100. Alberta Clipper Pipeline Project, copies will be available. Contact Ms. EIS No. 20080508, Draft EIS, COE, OH, Application for a Presidential Permit Ellen Lorang by phone (919–541–2771), Lorain Harbor. Ohio Federal to Construction, Operation and fax (919–541–5078), or e-mail Navigation Project, Dredged Material Maintenance of Facilities in ND, MN ([email protected]) to request either Management Plan, Implementation, and WI, Comment Period Ends: 01/ of these, and please provide your name, Lorain Harbor, Lorain County, Ohio, 30/2009, Contact: Elizabeth Orlando, your mailing address, and the document Comment Period Ends: 01/30/2009, Esq., 202–647–4284. Revision to FR title, ‘‘Integrated Science Assessment for Contact: William Butler, 716–879– Published 12/05/2008: Extending Oxides of Nitrogen and Sulfur— 4268. Comment Period from 01/20/2009 to Environmental Criteria’’ (EPA/600/R– EIS No. 20080509, Final EIS, IBR, ND, 01/30/2009. 08/082F), to facilitate processing of your Northwest Area Water Supply Project, EIS No. 20080498, Final EIS, NOA, CA, request. To Construct a Biota Water Treatment Channel Islands National Marine FOR FURTHER INFORMATION CONTACT: For Plant, Lake Sakakawea, Missouri Sanctuary Management Plan, technical information, contact Tara River Basin to Hudson Bay Basin, Implementation, Santa Barbara and Greaver, Ph.D., NCEA [telephone: 919– Divide, Williams, Burke, Renville, Ventura Counties, CA, Wait Period 541–2435; facsimile: 919–541–5078; or Bottineau, Pierce, McHenry, Ward, Ends: 01/05/2009, Contact: Chris e-mail: [email protected]]. Mountrail and McLean Counties, ND, Mobley, 805–966–7107 ext. 465. SUPPLEMENTARY INFORMATION: Section Wait Period Ends: 01/12/2009, Revision to FR Notice Published 12/ Contact: Alicia Waters, 701–221– 108(a) of the Clean Air Act directs the 05/2008: Correction to Status from Administrator to identify certain 1206. Final Supplement to Final. EIS No. 20080510, Final EIS, STB, 00, pollutants that ‘‘may reasonably be Elgin, Joliet & Eastern Railroad Dated: December 9, 2008. anticipated to endanger public health (Finance Docket No. 35087) Proposed Robert W. Hargrove, and welfare’’ and to issue air quality Acquisition by Canadian National Director, NEPA Compliance Division, Office criteria for them. These air quality (CN) Railway and Grand Trunk of Federal Activities. criteria are to ‘‘accurately reflect the Corporation to connect all Five of [FR Doc. E8–29491 Filed 12–11–08; 8:45 am] latest scientific knowledge useful in CN’s Rail lines, Chicago, Illinois and BILLING CODE 6560–50–P indicating the kind and extent of all Gary, Indiana, Wait Period Ends: 01/ identifiable effects on public health or 12/2009, Contact: Phillis Johnson- welfare which may be expected from the Ball, 202–245–0304. ENVIRONMENTAL PROTECTION presence of [a] pollutant in the ambient EIS No. 20080511, Final Supplement, AGENCY air. * * *’’ Under section 109 of the USN, 00, Developing Home Port Act, EPA is then to establish NAAQS for each pollutant for which EPA has issued Facilities for Three NIMITZ-Class [FRL–8750–6] Aircraft Carriers in Support of the criteria. Section 109(d) of the Act U.S. Pacific Fleet, New Circumstances Integrated Science Assessment for requires subsequent periodic review and Information to Supplements (the Oxides of Nitrogen and Sulfur— and, if appropriate, revision of existing 1999 FEIS) Coronado, CA, Wait Environmental Criteria air quality criteria to reflect advances in Period Ends: 01/12/2009, Contact: scientific knowledge on the effects of Robert Montana, 619–556–8509. AGENCY: Environmental Protection the pollutant on public health and EIS No. 20080512, Final EIS, USN, 00, Agency (EPA). welfare. EPA is also to revise the Atlantic Fleet Active Sonar Training ACTION: Notice of Availability. NAAQS, if appropriate, based on the Program, To Provide Mid- and High- revised air quality criteria. Frequency Active Sonar Technology SUMMARY: The U.S. Environmental Oxides of nitrogen and sulfur are two and the Improved Ext ended Echo Protection Agency is announcing the of six principal (or ‘‘criteria’’) pollutants Ranging (IEER) System during availability of a final document entitled, for which EPA has established air Atlantic Fleet Training Exercises, ‘‘Integrated Science Assessment for quality criteria and NAAQS. EPA Along the East Coast of United States Oxides of Nitrogen and Sulfur— periodically reviews the scientific basis (U.S.) and in the Gulf of Mexico, Wait Ecological Criteria,’’ and the for these standards by preparing an Period Ends: 01/05/2009: EPA supplementary annexes (EPA/600/R–08/ Integrated Science Assessment (ISA) Approved a Reduce Wait Period 082F). The document was prepared by (formerly called an Air Quality Criteria because of Compelling Reasons of the National Center for Environmental Document). The ISA and supplementary National Policy Pursuant to 40 CFR Assessment (NCEA) within EPA’s Office annexes, in conjunction with additional Part 1506.10(c). Contact: Todd of Research and Development as part of technical and policy assessments, Williamson, 757–322–8162. the review of the secondary National provide the scientific basis for EPA Ambient Air Quality Standards decisions on the adequacy of a current Amended Notices (NAAQS) for oxides of nitrogen and NAAQS and the appropriateness of new EIS No. 20080469, Draft EIS, FTA, HI, sulfur. EPA’s secondary NAAQS are or revised standards. The Clean Air Honolulu High-Capacity Transit based on ecological and welfare effects. Scientific Advisory Committee

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(CASAC), an independent science ENVIRONMENTAL PROTECTION and included as part of the comment advisory committee established AGENCY that is placed in the public docket and pursuant to section 109 of the Clean Air made available on the Internet. If you [EPA–New England Region I—EPA–R01– Act and part of the EPA’s Science OW–2008–0875; FRL–8751–3] submit an electronic comment, EPA Advisory Board (SAB), provides recommends that you include your independent scientific advice on Maine Marine Sanitation Device name and other contact information in NAAQS matters, including advice on Standard—Receipt of Petition the body of your comment and with any EPA’s draft ISAs. disk or CD–ROM you submit. If EPA AGENCY: Environmental Protection EPA formally initiated its current cannot read your comment due to Agency (EPA). review of the criteria for oxides of technical difficulties and cannot contact nitrogen and sulfur in December 2005 ACTION: Notice—Receipt of Petition. you for clarification, EPA may not be able to consider your comment. (70 FR 73236) and May 2006 (71 FR SUMMARY: Notice is hereby given that a 28023) respectively, requesting the Electronic files should avoid the use of petition has been received from the state special characters, any form of submission of recent scientific of Maine requesting a determination by information on specified topics. In the encryption, and be free of any defects or the Regional Administrator, U.S. viruses. initial stages of the criteria reviews, EPA Environmental Protection Agency, that Docket: All documents in the docket recognized the merit of integrating the adequate facilities for the safe and are listed in the http:// science assessment for these two sanitary removal and treatment of www.regulations.gov index. Although pollutants due to their combined effects sewage from all vessels are reasonably listed in the index, some information is on atmospheric chemistry, deposition available for the waters of Kennebunk, not publicly available, e.g., CBI or other processes, and environment-related Kennebunkport and Wells. public welfare effects. In July 2007 (72 information whose disclosure is DATES: Comments due by January 12, FR 34004), EPA held a workshop to restricted by statute. Certain other 2009. discuss, with invited scientific experts, material, such as copy-righted material, initial draft materials prepared in the ADDRESSES: Submit your comments, will be publicly available only in hard development of the ISA and identified by Docket ID No. EPA–R01– copy. Publicly available docket supplementary annexes for oxides of OW–2008–0875, by one of the following materials are available either nitrogen and sulfur. EPA’s ‘‘Draft Plan methods: http://www.regulations.gov, electronically in http:// for Review of the Secondary National Follow the on-line instructions for www.regulations.gov or in hard copy at Ambient Air Quality Standards for submitting comments. the U. S. Environmental Protection • Nitrogen Dioxide and Sulfur Dioxide’’ E-mail: [email protected]. Agency—New England Region, One • was made available in September 2007 Fax: (617) 918–0538. Congress Street, Suite 1100, COP, for public comment and was discussed Mail and hand delivery: U.S. Boston, MA 02114–2023. Such by the Clean Air Scientific Advisory Environmental Protection Agency—New deliveries are only accepted during the Committee (CASAC) via a publicly England Region, One Congress Street, Regional Office’s normal hours of accessible teleconference consultation Suite 1100, COP, Boston, MA 02114– operation, and special arrangements on October 30, 2007 (72 FR 57568). EPA 2023. Deliveries are only accepted should be made for deliveries of boxed made its Draft Plan available on EPA’s during the Regional Office’s normal information. The Regional Office is Web site: http://www.epa.gov/ttn/ hours of operation (8 a.m.–5 p.m., open from 8 a.m.–5 p.m. Monday naaqs/standards/no2so2sec/cr_pd.html. Monday through Friday, excluding legal through Friday, excluding legal The draft ‘‘Integrated Science holidays), and special arrangements holidays. The telephone number is (617) Assessment for Oxides of Nitrogen and should be made for deliveries of boxed 918–1538. Sulfur—Environmental Criteria; First information. FOR FURTHER INFORMATION CONTACT: Ann Instructions: Direct your comments to External Review Draft’’ was released for Rodney, U. S. Environmental Protection Docket ID No. EPA–R01–OW–2008– review on December 21, 2007 (72 FR Agency—New England Region, One 0875. EPA’s policy is that all comments 72719). The CASAC reviewed the first Congress Street, Suite 1100, COP, received will be included in the public draft document at a public peer review Boston, MA 02114–2023. Telephone: docket without change and may be meeting on April 2–3, 2008. EPA (617) 918–1538, Fax number: (617) 918– made available online at http:// addressed comments from the CASAC 0538; e-mail address: www.regulations.gov, including any and the public in the second external [email protected]. review draft document, ‘‘Integrated personal information provided, unless SUPPLEMENTARY INFORMATION: Notice is Science Assessment for Oxides of the comment includes information hereby given that a petition has been Nitrogen and Sulfur—Environmental claimed to be Confidential Business received from the State of Maine Criteria; Second External Review Draft,’’ Information (CBI) or other information requesting a determination by the which was released for public comment whose disclosure is restricted by statute. Regional Administrator, U. S. on August 12, 2008 (72 FR 46908). The Do not submit information that you Environmental Protection Agency, second draft was reviewed by the consider to be CBI or otherwise pursuant to section 312(f)(3) of Public CASAC at a public meeting on October protected through http:// Law 92–500 as amended by Public Law 2–3, 2008. EPA has considered www.regulations.gov, or e-mail. The 95–217 and Public Law 100–4, that comments by CASAC and by the public http://www.regulations.gov Web site is adequate facilities for the safe and in preparing this final ISA. an ‘‘anonymous access’’ system, which means EPA will not know your identity sanitary removal and treatment of Dated: December 4, 2008. or contact information unless you sewage from all vessels are reasonably Rebecca Clark, provide it in the body of your comment. available for the Kennebunk, Acting Director, National Center for If you send an e-mail comment directly Kennebunkport, Wells area. Environmental Assessment. to EPA without going through http:// The proposed no discharge area for [FR Doc. E8–29347 Filed 12–11–08; 8:45 am] www.regulations.gov your e-mail the KENNEBUNK/KENNEBUNKPORT/ BILLING CODE 6560–50–P address will be automatically captured WELLS:

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Waterbody/general area Latitude Longitude

From ‘‘Moody Point in Wells north to a point a the westerly head of navigation of the 43°19′19.07″ N 70°33′57.8″ W. Webehannet River. Northeast to the head of navigation of the middle fork of the Webehannet River ...... 43°17′12.21″ N 70°34′143.98″ W. Northeast to the head of navigation of the eastern fork of the Webehannet River ...... 43°19′25.8″ N 70°33′32.54″ W. East to the head of navigation of the Mousam River ...... 43°21′44.16″ N 70°31′35.53″ W. East to the head of navigation of the Kennebunk River ...... 43°22′23.52″ N 70°29′3.77″ W. East to ‘‘Cape Arundel’’ ...... 43°20′25.42″ N 70°27′58.36″ W. Southwest in a straight line to Moody Point ...... 42°17′12.21″ N 70°34′14.98″ W.

The proposed NDA includes the hours of operation is provided at the includes a diverse array of habitats from municipal waters of Kennebunkport, end of this petition. rocky shores to large amounts of Kennebunk, and Wells. Maine has provided documentation wetland and salt marshes and mud flats. indicating that the total vessel There are marinas, yacht clubs and There are over 19,700 acres of salt population is estimated to be 537 in the marshes. The area includes 672 acres of public landings/piers in the proposed proposed area. It is estimated that 195 area with a combination of mooring essential habitat for the federally of the total vessel population may have endangered Piping Plover and Least fields and dock space for the a Marine Sanitation Device (MSD) of recreational and commercial vessels. Tern. There are 11 beaches, three some type. marinas, three boat launches, and four Maine has certified that there are five The proposed area is identified as a pumpout facilities within the proposed High Value Wildlife Habitat by the U.S. campgrounds in the proposed area. This area available to the boating public. The fish and Wildlife Service and contains area is a popular destination for boaters majority of facilities are connected to the Wells National Estuarine Research due to its natural environmental the sewage system. A list of the Reserve and the Rachel Carson National diversity and would benefit from a No facilities, phone numbers, locations, and Wildlife Refuge. The intertidal zone Discharge Area.

PUMPOUT FACILITIES WITHIN PROPOSED NO DISCHARGE AREAS

Mean low water Name Location Contact info. Hours depth (feet)

Kennebunk/Kennebunk/Wells

Harbormaster ...... Wells ...... 207–646–3226, VHF 16 ...... 7 a.m.–3 p.m...... 10 Yachtsman ...... Kennebunk River ...... 207–967–2511, VHF 9 ...... 8 a.m.–5 p.m., 7 days ...... 10 Kennebunkport Marina ...... Kennebunk River ...... 207–967–3411, VHF 9 ...... 8 a.m.–5 p.m., 7 days ...... 10 Chicks Marina ...... Kennebunk River ...... 207–967–2782, VHF 9 ...... 8 a.m.–5 p.m., 7 days ...... 10 River Commission pumpout Kennebunk River ...... 207–967–4243 ...... 24/7 self service ...... 8 float.

Dated: November 30, 2008. Counselors (BOSC) National Center for • http://www.regulations.gov: Follow Robert W. Varney, Environmental Research Subcommittee the on-line instructions for submitting Regional Administrator, New England Region. (NCER). comments. • E-mail: Send comments by [FR Doc. E8–29478 Filed 12–11–08; 8:45 am] DATES: The meeting (teleconference call) electronic mail (e–mail) to: BILLING CODE 6560–50–P will be held on Monday, January 12, [email protected], Attention Docket 2009 from 1 p.m. to 3 p.m. Eastern ID No. EPA–HQ–ORD–2007–0484. Standard Time. The meeting may • Fax: Fax comments to: (202) 566– ENVIRONMENTAL PROTECTION adjourn early if all business is finished. AGENCY 0224, Attention Docket ID No. EPA– Requests for the draft agenda or for HQ–ORD–2007–0484. [EPA–HQ–ORD–2007–0484; FRL–8751–4] making an oral presentation at the • Mail: Send comments by mail to: conference calls will be accepted up to Board of Scientific Counselors, NCER Board of Scientific Counselors, one business day before the meeting. Standing Subcommittee—2009 Docket, National Center for Environmental ADDRESSES: Participation in the meeting Mailcode: 28221T, 1200 Pennsylvania Research Standing Subcommittee will be by teleconference only—a Ave., NW., Washington, DC 20460, Meeting—2009 meeting room will not be used. Attention Docket ID No. EPA–HQ– AGENCY: Environmental Protection Members of the public may obtain the ORD–2007–0484. Agency (EPA). call–in number and access code for the • Hand Delivery or Courier: Deliver ACTION: Notice of meeting. call from Susan Peterson, the comments to: EPA Docket Center (EPA/ Designated Federal Officer, whose DC), Room B102, EPA West Building, SUMMARY: Pursuant to the Federal contact information is listed under the 1301 Constitution Avenue, NW., Advisory Committee Act, Public Law FOR FURTHER INFORMATION CONTACT Washington, DC, Attention Docket ID 92–463, the Environmental Protection section of this notice. Submit your No. EPA–HQ–ORD–2007–0484. Note: Agency (EPA), Office of Research and comments, identified by Docket ID No. This is not a mailing address. Such Development (ORD), gives notice of a EPA–HQ–ORD–2007–0484, by one of deliveries are only accepted during the meeting of the Board of Scientific the following methods: docket’s normal hours of operation, and

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special arrangements should be made 566–1744, and the telephone number for Memorandum and resolution re: for deliveries of boxed information. the ORD Docket is (202) 566–1752. Proposed Modification to FDIC Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: The Strategic Plan, 2008–2013. Docket ID No. EPA–HQ–ORD–2007– Designated Federal Officer via mail at: DISCUSSION AGENDA: 0484. EPA’s policy is that all comments Susan Peterson, Mail Code 8104–R, Memorandum and resolution re: Final received will be included in the public Office of Science Policy, Office of Rule on Assessment Rates for First docket without change and may be Research and Development, Quarter 2009. made available online at http:// Environmental Protection Agency, 1200 Memorandum and resolution re: Final www.regulations.gov, including any Pennsylvania Avenue, NW., Rule on Recordkeeping Requirements personal information provided, unless Washington, DC 20460; via phone/voice for Qualified Financial Contracts. the comment includes information mail at: (202) 564–1077; via fax at: (202) Memorandum and resolution re: claimed to be Confidential Business 565–2911; or via e-mail at: Interagency Final Rule on Capital Information (CBI) or other information [email protected]. Maintenance: Deduction of Goodwill whose disclosure is restricted by statute. Net of Associated Deferred Tax SUPPLEMENTARY INFORMATION: Do not submit information that you Liabilities. consider to be CBI or otherwise General Information Memorandum and resolution re: protected through http:// Proposed 2009 Corporate Operating Proposed agenda items for the Budget. www.regulations.gov or e-mail. The meeting include, but are not limited to, http://www.regulations.gov Web site is The meeting will be held in the Board a discussion of the ORD Research Room on the sixth floor of the FDIC an ‘‘anonymous access’’ system, which Program, the NCER reorganization and means EPA will not know your identity Building located at 550 17th Street, vision, and the charge to the NW., Washington, DC. or contact information unless you subcommittee. The conference calls are provide it in the body of your comment. This Board meeting will be Webcast open to the public. live via the Internet and subsequently If you send an e-mail comment directly Information on Services for to EPA without going through http:// made available on-demand Individuals with Disabilities: For approximately one week after the event. www.regulations.gov, your e-mail information on access or services for address will be automatically captured Visit http://www.vodium.com/goto/fdic/ individuals with disabilities, please boardmeetings.asp to view the event. If and included as part of the comment contact Susan Peterson at (202) 564– you need any technical assistance, that is placed in the public docket and 1077 or [email protected]. To please visit our Video Help page at: made available on the Internet. If you request accommodation of a disability, http://www.fdic.gov/video.html. submit an electronic comment, EPA please contact Susan Peterson, The FDIC will provide attendees with recommends that you include your preferably at least ten days prior to the auxiliary aids (e.g., sign language name and other contact information in meeting, to give EPA as much time as interpretation) required for this meeting. the body of your comment and with any possible to process your request. Those attendees needing such assistance disk or CD–ROM you submit. If EPA should call (703) 562–6067 (Voice or cannot read your comment due to Dated: December 4, 2008. Fred Hauchman, TTY), to make necessary arrangements. technical difficulties and cannot contact Requests for further information you for clarification, EPA may not be Director, Office of Science Policy. concerning the meeting may be directed able to consider your comment. [FR Doc. E8–29476 Filed 12–11–08; 8:45 am] to Mr. Robert E. Feldman, Executive Electronic files should avoid the use of BILLING CODE 6560–50–P Secretary of the Corporation, at (202) special characters, any form of 898–7043. encryption, and be free of any defects or viruses. For additional information Dated: December 9, 2008. FEDERAL DEPOSIT INSURANCE about EPA’s public docket visit the EPA Federal Deposit Insurance Corporation. CORPORATION Docket Center homepage at http:// Robert E. Feldman, www.epa.gov/epahome/dockets.htm. Notice of Agency Meeting Executive Secretary. Docket: All documents in the docket [FR Doc. E8–29552 Filed 12–11–08; 8:45 am] are listed in the http:// Pursuant to the provisions of the BILLING CODE 6714–01–P www.regulations.gov index. Although ‘‘Government in the Sunshine Act’’ (5 listed in the index, some information is U.S.C. 552b), notice is hereby given that not publicly available, e.g., CBI or other the Federal Deposit Insurance FEDERAL DEPOSIT INSURANCE information whose disclosure is Corporation’s Board of Directors will CORPORATION restricted by statute. Certain other meet in open session at 10 a.m. on Notice of Agency Meeting material, such as copyrighted material, Tuesday, December 16, 2008, to will be publicly available only in hard consider the following matters: Pursuant to the provisions of the copy. Publicly available docket SUMMARY AGENDA: No substantive ‘‘Government in the Sunshine Act’’ (5 materials are available either discussion of the following items is U.S.C. 552b), notice is hereby given that electronically in http:// anticipated. These matters will be at 10:30 a.m. on Tuesday, December 16, www.regulations.gov or in hard copy at resolved with a single vote unless a 2008, the Federal Deposit Insurance the Board of Scientific Counselors, member of the Board of Directors Corporation’s Board of Directors will NCER Standing Subcommittee—2009 requests that an item be moved to the meet in closed session, pursuant to Docket, EPA/DC, EPA West, Room discussion agenda. section 552b(c)(2), (c)(4), (c)(6), (c)(8), B102, 1301 Constitution Ave., NW., Disposition of minutes of previous (9)(A)(ii), (9)(B), and (10) of Title 5, Washington, DC. The Public Reading Board of Directors’ meetings. United States Code, to consider matters Room is open from 8:30 a.m. to 4:30 Summary reports, status reports, and relating to the Corporation’s supervisory p.m., Monday through Friday, excluding reports of actions taken pursuant to and corporate activities. legal holidays. The telephone number authority delegated by the Board of The meeting will be held in the Board for the Public Reading Room is (202) Directors. Room on the sixth floor of the FDIC

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Building located at 550 17th Street, FEDERAL RESERVE SYSTEM DEPARTMENT OF HEALTH AND NW., Washington, DC. HUMAN SERVICES Requests for further information Notice of Proposals to Engage in National Institute for Occupational concerning the meeting may be directed Permissible Nonbanking Activities or Safety and Health; Designation of a to Mr. Robert E. Feldman, Executive to Acquire Companies that are Engaged in Permissible Nonbanking Class of Employees for Addition to the Secretary of the Corporation, at (202) Special Exposure Cohort 898–7043. Activities AGENCY: Dated: December 9, 2008. National Institute for The companies listed in this notice Occupational Safety and Health Federal Deposit Insurance Corporation. have given notice under section 4 of the (NIOSH), Department of Health and Robert E. Feldman, Bank Holding Company Act (12 U.S.C. Human Services (HHS). 1843) (BHC Act) and Regulation Y (12 Executive Secretary. ACTION: Notice. [FR Doc. E8–29553 Filed 12–11–08; 8:45 am] CFR Part 225) to engage de novo, or to acquire or control voting securities or BILLING CODE 6714–01–P SUMMARY: The Department of Health and assets of a company, including the Human Services (HHS) gives notice of a companies listed below, that engages decision to designate a class of either directly or through a subsidiary or employees at the Connecticut Aircraft FEDERAL RESERVE SYSTEM other company, in a nonbanking activity Nuclear Engine Laboratory in that is listed in § 225.28 of Regulation Y Middletown, Connecticut, as an Change in Bank Control Notices; (12 CFR 225.28) or that the Board has addition to the Special Exposure Cohort Acquisition of Shares of Bank or Bank determined by Order to be closely (SEC) under the Energy Employees Holding Companies related to banking and permissible for Occupational Illness Compensation bank holding companies. Unless Program Act of 2000. On October 24, The notificants listed below have otherwise noted, these activities will be 2008, the Secretary of HHS designated applied under the Change in Bank conducted throughout the United States. the following class of employees as an Control Act (12 U.S.C. 1817(j)) and addition to the SEC: Each notice is available for inspection All employees of the Department of § 225.41 of the Board’s Regulation Y (12 at the Federal Reserve Bank indicated. CFR 225.41) to acquire a bank or bank Energy (DOE), its predecessor agencies, The notice also will be available for and DOE contractors or subcontractors holding company. The factors that are inspection at the offices of the Board of considered in acting on the notices are who worked at the Connecticut Aircraft Governors. Interested persons may Nuclear Engine Laboratory in set forth in paragraph 7 of the Act (12 express their views in writing on the Middletown, CT, from January 1, 1958 U.S.C. 1817(j)(7)). question whether the proposal complies through December 31, 1965 for a The notices are available for with the standards of section 4 of the number of work days aggregating at least immediate inspection at the Federal BHC Act. Additional information on all 250 work days occurring either solely Reserve Bank indicated. The notices bank holding companies may be under this employment or in also will be available for inspection at obtained from the National Information combination with work days within the the office of the Board of Governors. Center website at www.ffiec.gov/nic/. parameters established for one or more Interested persons may express their Unless otherwise noted, comments other classes of employees in the views in writing to the Reserve Bank regarding the applications must be Special Exposure Cohort. This designation will become indicated for that notice or to the offices received at the Reserve Bank indicated effective on November 23, 2008, unless of the Board of Governors. Comments or the offices of the Board of Governors Congress provides otherwise prior to the must be received not later than not later than January 8, 2009. December 29, 2008. effective date. After this effective date, A. Federal Reserve Bank of Atlanta HHS will publish a notice in the A. Federal Reserve Bank of Chicago (Steve Foley, Vice President) 1000 Federal Register reporting the addition (Burl Thornton, Assistant Vice Peachtree Street, N.E., Atlanta, Georgia of this class to the SEC or the result of President) 230 South LaSalle Street, 30309: any provision by Congress regarding the Chicago, Illinois 60690–1414: 1. First Trust Corporation, New decision by HHS to add the class to the 1. Donald M. Soenen, Plymouth, Orleans, Louisiana, to acquire 100 SEC. Michigan, as Trustee of the Donald M. percent of the voting shares of Globe FOR FURTHER INFORMATION CONTACT: Soenen Trust dated 9/14/84 and Bancorp, Inc., and thereby directly and Larry Elliott, Director, Office of Michael J. Soenen, Chicago, Illinois, to indirectly acquire voting shares of Globe Compensation Analysis and Support, retain control of Plymouth Financial Homestead Savings Bank, FSA, both of National Institute for Occupational Corporation, and thereby indirectly Metairie, Louisiana, and thereby engage Safety and Health (NIOSH), 4676 retain shares of New Liberty Bank, both in operating a savings association, Columbia Parkway, MS C–46, of Plymouth, Michigan. pursuant to section 225.28(b)(4)(ii) of Cincinnati, OH 45226, Telephone 513– 533–6800 (this is not a toll-free Board of Governors of the Federal Reserve Regulation Y. System, December 9, 2008. number). Information requests can also Board of Governors of the Federal Reserve be submitted by e-mail to Robert deV. Frierson, System, December 9, 2008. [email protected]. Deputy Secretary of the Board. Robert deV. Frierson, Dated: December 8, 2008. [FR Doc. E8–29461 Filed 12–11–08; 8:45 am] Deputy Secretary of the Board. Christine M. Branche, BILLING CODE 6210–01–S [FR Doc. E8–29460 Filed 12–11–08; 8:45 am] Acting Director, National Institute for BILLING CODE 6210–01–S Occupational Safety and Health. [FR Doc. E8–29391 Filed 12–11–08; 8:45 am] BILLING CODE 4160–17–P

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DEPARTMENT OF HEALTH AND both men and women in the United are useful, well implemented, and HUMAN SERVICES States, accounting for more than 35% of effective in achieving intended public all deaths. They are also among the health goals. To evaluate its current and Centers for Disease Control and leading causes of disability in the U.S. future program activities, the DHDSP Prevention workforce, with projected costs of more has developed a comprehensive [60Day-09–09AH] than $448 billion in 2008, including assessment strategy based on the criteria health care expenditures and lost of relevance, quality and impact. Proposed Data Collections Submitted productivity from death and disability. Over the next three years, DHDSP for Public Comment and As the U.S. population ages, the plans to conduct a series of information Recommendations economic impact of cardiovascular collections based on a reference set of diseases on the health care system is questions that address relevance, quality In compliance with the requirement expected to become even greater. of Section 3506(c)(2)(A) of the and impact of DHDSP services and While heart disease and stroke are guidance. Respondents will be the Paperwork Reduction Act of 1995 for among the most widespread and costly opportunity for public comment on DHDSP’s partners in state and local health problems facing our nation today, government as well as organizations in proposed data collection projects, the they are also among the most Centers for Disease Control and the private sector. A generic clearance is preventable. In 2006, CDC created the requested in order to provide flexibility Prevention (CDC) will publish periodic Division of Heart Disease and Stroke summaries of proposed projects. To in the content and timing of specific Prevention (DHDSP) in response to the request more information on the information collections. Surveys epidemic of heart disease and stroke proposed projects or to obtain a copy of tailored to specific public health facing our nation. The DHDSP provides the data collection plans and partners, services, or other national leadership for efforts to reduce instruments, call 404–639–5960, send programmatic initiatives will be the burden of disease, disability, and comments to Maryam I. Daneshvar, CDC developed from the reference set of pre- death from heart disease and stroke for Acting Reports Clearance Officer, 1600 approved questions. A small number of all Americans. The DHDSP’s key Clifton Road, MS–D74, Atlanta, GA demographic and descriptive questions partners include state and local health 30333 or send an e-mail to may be included in specific surveys to departments, public health [email protected]. assess the extent to which perceptions Comments are invited on: (a) Whether organizations, community and use of DHDSP services vary across the proposed collection of information organizations, nonprofit organizations, types of respondents. The DHDSP also is necessary for the proper performance and professional organizations. seeks approval to include a limited of the functions of the agency, including Many heart disease and stroke number of customized questions within whether the information shall have prevention and control activities are each survey to ensure responsiveness to practical utility; (b) the accuracy of the conducted through DHDSP-funded heart specific needs. The evaluation agency’s estimate of the burden of the disease and stroke prevention programs, information will be used to determine proposed collection of information; (c) including the State Heart Disease and whether DHDSP activities and products ways to enhance the quality, utility, and Stroke Prevention Program, the Paul are reaching the intended audiences, clarity of the information to be Coverdell National Acute Stroke whether they are deemed to be useful by collected; and (d) ways to minimize the Registry, and the Well-Integrated those audiences, and whether DHDSP burden of the collection of information Screening and Evaluation for Women efforts improve public health practices. on respondents, including through the Across the Nation (WISEWOMAN) Finally, the generic clearance format use of automated collection techniques Program. will allow the DHDSP to identify new or other forms of information The DHDSP supports the programmatic opportunities and to technology. Written comments should development of CDC-funded programs, respond to partners’ concerns. as well as external partners, by be received within 60 days of this Whenever feasible, information will notice. conducting trainings, providing scientific guidance and technical be collected electronically to reduce Proposed Project assistance, and producing scientific burden on respondents. In addition, information may be collected through Improving the Quality and Delivery of information and supporting tools. For in-person or telephone interviews or CDC’s Heart Disease and Stroke example, the DHDSP provides training focus groups when Web-based surveys Prevention Programs—New—Division to States on how to implement and are impractical or when in-depth for Heart Disease and Stroke Prevention evaluate their programs and provides responses are required. Without the (DHDSP), National Center for Chronic guidance on how to best apply proposed collection of information, Disease Prevention and Health evidence-based practices. In addition DHDSP’s evaluation initiatives would Promotion (NCCDPHP), Centers for the DHDSP translates its scientific be based on informal and partial Disease Control and Prevention (CDC). studies into informational products, such as on-line reports and data on feedback from a limited number of Background and Brief Description heart disease and stroke trends. partners. Heart disease and stroke are the first The DHDSP recognizes the There are no costs to respondents and third leading causes of death for importance of ensuring that its activities other than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of burden per Total Burden Type of respondent Data collection mechanism respondents response (in hours) (in hours)

State and Local Health Departments ...... Web-based survey ...... 250 30/60 125 Interview ...... 30 1 30

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ESTIMATED ANNUALIZED BURDEN HOURS—Continued

Average Number of burden per Total Burden Type of respondent Data collection mechanism respondents response (in hours) (in hours)

Focus group ...... 32 1 32 Private Sector Partners ...... Web-based survey ...... 120 30/60 60 Interview ...... 120 1 120 Focus group ...... 48 1 48

Total ...... 415

Dated: December 5, 2008. Landmines—New—National Center for time, it is estimated that civilians Maryam I. Daneshvar, Environmental Health (NCEH), Centers account for 35% to 65% of war-related Acting Reports Clearance Officer, Centers for for Disease Control and Prevention deaths and injuries. The use of Disease Control and Prevention. (CDC). landmines and UXO is ongoing, and therefore this issue merits continued [FR Doc. E8–29399 Filed 12–11–08; 8:45 am] Background and Brief Description BILLING CODE 4163–18–P attention. The purpose of this project is to Up to this point, however, little if any conduct focus groups and an of the international response to DEPARTMENT OF HEALTH AND observational baseline survey that landmines has studied the economic, HUMAN SERVICES assesses the effectiveness of social, and mental impact upon a Humanitarian Mine Action (landmine community. Instead the focus has been and unexploded ordnance clearance, Centers for Disease Control and their physical impact in terms of also known as de-mining) upon the Prevention numbers of injured and killed. There are economic, social and mental well being no statistics nor is there research that [30Day–09–07AB] of impacted communities. can accurately capture these alternative This work will be conducted by the Agency Forms Undergoing Paperwork measures of impact. Harvard Humanitarian Initiative, a Reduction Act Review center of Harvard University, under a There now exists an opportunity for The Centers for Disease Control and cooperative agreement with CDC. The further research that will benefit the Prevention (CDC) publishes a list of study will examine the impact that general public as well as the information collection requests under individuals and communities in these organizations and governments working review by the Office of Management and locations suffer when living in an area with persons impacted by landmines Budget (OMB) in compliance with the with landmines and unexploded and UXO. The proposed work will Paperwork Reduction Act (44 U.S.C. ordnance (UXO). Individuals and allow CDC to continue its commitment Chapter 35). To request a copy of these communities also suffer from the lack of to reduce the negative health impact requests, call the CDC Reports Clearance use of all land resources as well as the posed by landmines and unexploded Officer at (404) 639–5960 or send an e- trauma of injured or killed family ordnance, both for U.S. and non-U.S.- mail to [email protected]. Send written members. based populations. Approximately 1,264 comments to CDC Desk Officer, Office of This research on the impact of respondents will come from the Management and Budget, Washington, demining is necessary because Lebanon area. The estimates of DC or by fax to (202) 395–6974. Written landmines and UXO continue to annualized burden hours for the comments should be received within 30 negatively impact civilian populations. household surveys and the focus groups days of this notice. For example, it has been estimated that are shown in the table below. each year landmines and unexploded There are no costs to respondents Proposed Project ordnance lead to the injury and death of except their time to participate in the Measuring the Psychological Impact 24,000 persons worldwide, survey. The total estimated annualized on Communities Affected by predominately civilians. At the same burden hours are 1,328.

ESTIMATED ANNUALIZED BURDEN

Average Number of Number of burden per Type of respondents respondents responses per response respondent (in hrs)

Household Survey—Cluster munitions ...... 600 1 1 Household Survey Control—Remote landmines ...... 600 1 1 Focus Group—Cluster munitions ...... 32 1 2 Focus Group Control—Remote landmines ...... 32 1 2

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Dated: December 2, 2008. [email protected]. All require domestic establishments to Maryam I. Daneshvar, comments should be identified with the register annually during the period Acting Reports Clearance Officer, Centers for OMB control number 0910–0625. Also beginning October 1 and ending Disease Control and Prevention. include the FDA docket number found December 31 of each year. Section 222 [FR Doc. E8–29402 Filed 12–11–08; 8:45 am] in brackets in the heading of this of FDAAA also amends section 510(i)(1) BILLING CODE 4163–18–P document. of the FD&C Act to require foreign FOR FURTHER INFORMATION CONTACT: establishments to register immediately Denver Presley, Jr., Office of Information upon first engaging in one of the DEPARTMENT OF HEALTH AND Management (HFA–710), Food and Drug covered device activities described HUMAN SERVICES Administration, 5600 Fishers Lane, under the statute, and in addition, they Rockville, MD 20857, 301–796–3793. must also register annually during the Food and Drug Administration time period beginning October 1 and SUPPLEMENTARY INFORMATION: In [Docket No. FDA–2008–N–0499] ending December 31 of each year. compliance with 44 U.S.C. 3507, FDA Further, section 223 of FDAAA amends Agency Information Collection has submitted the following proposed section 510(j)(2) of the FD&C Act to Activities; Submission for Office of collection of information to OMB for require establishments list their devices Management and Budget Review; review and clearance. with FDA annually, during the time Comment Request; Implementation of Implementation of Sections 222, 223, period beginning October 1 and ending Sections 222, 223, and 224 of the Food and 224 of the Food and Drug December 31 of each year. and Drug Administration Amendments Administration Amendments Act of Under FDAAA, device establishment Act of 2007 2007 (OMB Control Number 0910– owners and operators are required to 0625)—Extension AGENCY: Food and Drug Administration, keep their registration and device listing HHS. Sections 222, 223, and 224 of the information up-to-date using the agency’s new electronic system. Owners ACTION: Notice. Food and Drug Administration Amendments Act of 2007 (FDAAA), and operators of new device SUMMARY: The Food and Drug which were in effect on October 1, 2007, establishments must use the electronic Administration (FDA) is announcing require that device establishment system to create new accounts, new that a proposed collection of registrations and listings under section registration records, and new device information has been submitted to the 510 of the Federal Food, Drug, and listings. Section 224 of FDAAA amends Office of Management and Budget Cosmetic Act (the FD&C Act) (21 U.S.C. section 510(p) of the FD&C Act by (OMB) for review and clearance under 360), (including the submission of allowing an affected person to request a the Paperwork Reduction Act of 1995. updated information), be submitted to waiver from the requirement to register DATES: Fax written comments on the the Secretary by electronic means, electronically when the ‘‘use of collection of information by January 12, unless the Secretary grants a request for electronic means’’ is not reasonable for 2009. waiver of the requirement because the the person. ADDRESSES: To ensure that comments on use of electronic means is not In the Federal Register of October 1, the information collection are received, reasonable for the person requesting the 2008 (73 FR 57106), FDA published a OMB recommends that written waiver. FDA expects 20,000 to 30,000 60-day notice requesting public comments be faxed to the Office of device establishments to begin comment on the information collection Information and Regulatory Affairs, registering electronically at that time. provisions. No comments were received. OMB, Attn: FDA Desk Officer, FAX: Section 222 of FDAAA amends FDA estimates the burden of this 202–395–6974, or e-mailed to section 510(b) of the FD&C Act to collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

Section of the 2007 No. of Annual Frequency Total Annual Hours per Amend- FDA Form No. Respondents per Response Responses Response Total Hours ments

2222 3673 2,600 1 2,704 0.5 1,352

2232 3673 24,382 1 24,382 0.25 6,095

2242 29,370 1 29,370 0.75 22,028

2243 2,600 1 2,600 0.5 1,300

224 (waiver request)2 20 1 20 1 20

224 (waiver request)3 1 1 1 1 1

Total Hours 30,796 1 There are no capital costs or operating and maintenance costs associated with this collection of information. 2 One time burden. 3 Annual increase in burden.

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TABLE 2.—ESTIMATED ANNUAL RECORDKEEPING BURDEN1

No. of Annual Frequency Total Annual Hours per Section of the 2007 Amendments Recordkeepers per Recordkeeping Records Record Total Hours

2222 33,490 1 29,900 0.25 7,475

2232 16,524 4 66,096 0.5 33,048

Total Hours 40,523 1 There are no capital costs or operating and maintenance costs associated with this collection of information. 2 Recurring burden.

The estimates in Table 1 of this list their devices unless they initiate or Dated: December 8, 2008. document are based on FDA’s develop the specifications for the Jeffrey Shuren, experience, data from the device devices or repackage or relabel the Associate Commissioner for Policy and registration and listing database, and devices. The number of respondents Planning. our estimates of the time needed to included in Table 1 of this document for [FR Doc. E8–29459 Filed 12–11–08; 8:45 am] complete the previously required forms. section 223 of FDAAA is 24,382, which BILLING CODE 4160–01–S We estimate that the time needed to corresponds to the number of owner/ enter registration and listing operators who annually list one or more information electronically using FDA devices (29,370 – 4,988 = 24,382). DEPARTMENT OF HEALTH AND Form 3673 will not differ significantly HUMAN SERVICES from the time needed to fill in the paper To calculate the burden estimate for forms (FDA Forms 2891, 2891a, and waiver requests under section 224 of Food and Drug Administration FDAAA, we assume as stated 2892) that previously were used for this [Docket No. FDA–2008–D–0611] purpose because the information previously, that less than one tenth of 1 required is essentially identical. percent of the 33,490 total device Draft Guidance for Industry and Food In addition, under section 224 of establishments would request waivers and Drug Administration Staff; FDAAA, device establishment owner/ from FDA. This means the total number Submission and Review of Sterility operators, for whom registering and of waiver requests would probably not Information in Premarket Notification listing by electronic means is not exceed 20 requests (33,490 x 0.0006). Submissions for Devices Labeled as reasonable, may request a waiver from We also estimate that the one-time Sterile; Availability burden on these establishments would the Secretary. Because a device AGENCY: Food and Drug Administration, be an hour of time for a mid-level establishment’s owner/operator is HHS. required to register and list, they would manager to draft, approve, and mail a ACTION: Notice. need only to have access to a computer, letter. In addition, FDA estimates the Internet and an e-mail address for total number of establishments will SUMMARY: The Food and Drug registration and listing by electronic increase by 2,600 new establishments Administration (FDA) is announcing the means, the agency did not anticipate each year. Of the 2,600 new registrants availability of the draft guidance receipt of a large number of requests for each year, we assume that less than 1 entitled ‘‘Submission and Review of waiver. For the first few months of percent (i.e., 1) of these will also request Sterility Information in Premarket operation of the web-based system, from waivers each year. The total, therefore, Notification (510(k)) Submissions for the October through December 2007 is 21 waiver requests, which could Devices Labeled as Sterile.’’ This draft timeframe, FDA received fewer than 10 increase by only one additional request guidance document updates and requests for waivers for the requirement each year. clarifies the procedures for reviewing to submit registration and listing The burden estimate for premarket notification submissions (510(k)s) for devices labeled as sterile, information electronically. As data for recordkeeping requirements under particularly with respect to sterilization more than 16,000 establishments have section 222 of FDAAA in Table 2 of this technologies FDA considers novel, and been received electronically for the document, complies with the same period, these requests amount to the information that should be included requirement that owners or operators less than 1 percent of the total number in 510(k)s for devices labeled as sterile. keep a list of officers, directors, and of establishments that have responded. DATES: Although you can comment on partners for each establishment. Owners any guidance at any time (see 21 CFR Based on information taken from our or operators will need to provide this databases, FDA estimates that there are 10.115(g)(5)), to ensure that the agency information only upon request from 29,370 owner/operators who considers your comment on this draft FDA. However, it is assumed that some collectively register a total of 33,490 guidance before it begins work on the effort will need to be expended for device establishments. The number of final version of the guidance, submit keeping such lists current. respondents listed for section 224 of written or electronic comments on the FDAAA in Table 1 of this document is The burden estimate for draft guidance by March 12, 2009. 29,370, which corresponds to the recordkeeping requirements under ADDRESSES: Submit written requests for number of owner/operators who section 223 of FDAAA in Table 2 of this single copies of the draft guidance annually register one or more document reflect other recordkeeping document entitled ‘‘Submission and establishments. In addition, FDA requirements for devices listed with Review of Sterility Information in estimates that 4,988 owner/operators are FDA, and the requirement to provide Premarket Notification (510(k)) initial importers who must register their these records upon request from FDA. Submissions for Devices Labeled as establishments but who, under FDA’s These estimates are based on FDA Sterile’’ to the Division of Small existing regulations, are not required to experience. Manufacturers, International, and

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Consumer Assistance (HFZ–220), Center practices regulation (21 CFR 10.115). and the collections of information in 21 for Devices and Radiological Health The draft guidance, when finalized, will CFR part 820 have been approved under (CDRH), Food and Drug Administration, represent the agency’s current thinking OMB control number 0910–0073. 1350 Piccard Dr., Rockville, MD 20850 on premarket notification submissions V. Comments or to the Office of Communication, for devices labeled as sterile. It does not Training, and Manufacturers Assistance create or confer any rights for or on any Interested persons may submit to the (HFM–40), Center for Biologics person and does not operate to bind Division of Dockets Management (see Evaluation and Research (CBER), Food FDA or the public. An alternative ADDRESSES) written or electronic and Drug Administration, 1401 approach may be used if such approach comments regarding this document. Rockville Pike, suite 200N, Rockville, satisfies the requirements of the Submit a single copy of electronic MD 20852–1448. Send one self- applicable statute and regulations. comments or two paper copies of any addressed adhesive label to assist that mailed comments, except that III. Electronic Access office in processing your request, or fax individuals may submit one paper copy. your request to CDRH at 240–276–3151. Persons interested in obtaining a copy Comments are to be identified with the The guidance may also be obtained by of the draft guidance may do so by using docket number found in brackets in the mail by calling CBER at 1–800–835– the Internet. To receive ‘‘Submission heading of this document. Received 4709 or 301–827–1800. See the and Review of Sterility Information in comments may be seen in the Division SUPPLEMENTARY INFORMATION section for Premarket Notification (510(k)) of Dockets Management between 9 a.m. information on electronic access to the Submissions for Devices Labeled as and 4 p.m., Monday through Friday. guidance. Sterile,’’ you may either send an e-mail Please note that on January 15, 2008, Submit written comments concerning request to [email protected] to the FDA Division of Dockets this draft guidance to the Division of receive an electronic copy of the Management Web site transitioned to Dockets Management (HFA–305), Food document or send a fax request to 240– the Federal Dockets Management and Drug Administration, 5630 Fishers 276–3151 to receive a hard copy. Please System (FDMS). FDMS is a Lane, rm. 1061, Rockville, MD 20852. use the document number 1615 to Government-wide, electronic docket Submit electronic comments to http:// identify the guidance you are management system. Electronic www.regulations.gov. Identify requesting. comments or submissions will be comments with the docket number CDRH maintains an entry on the accepted by FDA only through FDMS at found in brackets in the heading of this Internet for easy access to information, http://www.regulations.gov. document. including text, graphics, and files that may be downloaded to a personal Dated: December 3, 2008. FOR FURTHER INFORMATION CONTACT: Jeffrey Shuren, Steven Turtil, Center for Devices and computer with Internet access. Updated on a regular basis, the CDRH home page Associate Commissioner for Policy and Radiological Health (HFZ–480), Planning. Food and Drug Administration, includes device safety alerts, Federal 9200 Corporate Blvd., Rockville, Register reprints, information on [FR Doc. E8–29413 Filed 12–11–08; 8:45 am] MD 20850, 240–276–3747; premarket submissions (including lists BILLING CODE 4160–01–S Chiu Lin, Center for Devices and of approved applications and Radiological Health (HFZ–480), Food manufacturers’ addresses), small DEPARTMENT OF HEALTH AND and Drug Administration, 9200 manufacturer’s assistance, information HUMAN SERVICES Corporate Blvd., Rockville, MD 20850, on video conferencing and electronic 240–276–3700; or submissions, Mammography Matters, National Institutes of Health Leonard Wilson, Center for Biologics and other device-oriented information. Evaluation and Research (HFM–25), The CDRH Web site may be accessed at Submission for OMB Review; Food and Drug Administration, 1401 http://www.fda.gov/cdrh. A search Comment Request; The Hispanic Rockville Pike, Rockville, MD 20852 capability for all CDRH guidance Community Health Study (HCHS)/ 301–827–0373. documents is available at http:// Study of Latinos (SOL) SUPPLEMENTARY INFORMATION: www.fda.gov/cdrh/guidance.html. Guidance documents are also available SUMMARY: Under the provisions of I. Background on the CBER Internet site at http:// Section 3507(a)(1)(D) of the Paperwork This draft guidance document www.fda.gov/cber/guidelines.htm or the Reduction Act of 1995, the National updates and clarifies the procedures for Division of Dockets Management Heart, Lung, and Blood Institute reviewing premarket notification Internet site at http:// (NHLBI), the National Institutes of submissions (510(k)s) for devices www.regulations.gov. Health (NIH) has submitted to the Office labeled as sterile, particularly with of Management and Budget (OMB) a IV. Paperwork Reduction Act of 1995 respect to sterilization technologies FDA request for review and approval the considers novel. The draft guidance This draft guidance contains information collection listed below. provides details about the pyrogenicity information collection provisions that This proposed information collection information we recommend be included are subject to review by the Office of was previously published in the Federal in 510(k)s for devices labeled as sterile. Management and Budget (OMB) under Register on October 3, 2008, page When final, this draft will supersede the the Paperwork Reduction Act of 1995 57634, and allowed 60 days for public guidance entitled ‘‘Updated 510(k) (the PRA) (44 U.S.C. 3501–3520). This comment. One comment was received. Sterility Review Guidance K90–1’’ that draft guidance refers to previously The purpose of this notice is to allow an FDA issued on August 30, 2002 approved collections of information additional 30 days for public comment. (available at http://www.fda.gov/cdrh/ found in FDA regulations. These The National Institutes of Health may ode/guidance/361.pdf). collections of information are subject to not conduct or sponsor, and the review by OMB under the PRA. The respondent is not required to respond II. Significance of Guidance collections of information in 21 CFR to, an information collection that has This draft guidance is being issued part 807, subpart E, have been approved been extended, revised, or implemented consistent with FDA’s good guidance under OMB control number 0910–0120; on or after October 1, 1995, unless it

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displays a currently valid OMB control access. This project is a multicenter, six- Affected Public: Individuals or number. and-a-half year epidemiologic study and households; Businesses or other for Proposed Collection: Title: Hispanic will recruit 16,000 Hispanic men and profit; Small businesses or Community Health Study (HCHS)/Study women aged 18–74 in four community- organizations. Type of Respondents: of Latinos (SOL). Type of Information based cohorts in Chicago, Miami, San Individuals or households; physicians. Collection Request: New Collection. Diego, and the Bronx. The study will The annual reporting burden is as Need and Use of Information Collection: examine measures of obesity, physical follows: Estimated Number of The Hispanic Community Health Study activity, nutritional habits, diabetes, Respondents: 30,401; Estimated Number (HCHS)/ Study of Latinos (SOL) will lung and sleep function, cognitive of Responses per Respondent: 2.234; identify risk factors for cardiovascular function, hearing, and dental Average Burden Hours Per Response: and lung disease in Hispanic conditions. Closely integrated with the 0.7178; and Estimated Total Annual populations and determine the role of research component will be a acculturation in the prevalence and community and professional education Burden Hours Requested: 48,755. The development of these diseases. component, with the goals of bringing annualized cost to respondents is Hispanics, now the largest minority the research results back to the estimated at $756,412, assuming population in the US, are influenced by community, improving recognition and respondents time at the rate of $15 per factors associated with immigration control of risk factors, and attracting and hour and physician time at the rate of from different cultural settings and training Hispanic researchers in $55 per hour. There are no Capital Costs environments, including changes in epidemiology and population-based to report. There are no Operating or diet, activity, community support, research. Frequency of Response: The Maintenance Costs to report. working conditions, and health care participants will be contacted annually.

ESTIMATE OF ANNUAL HOUR BURDEN

Type of Number of re- Frequency of Average hours Annual hour response spondents responses per response burden

Participant Recruitment Contact ...... 29,036 1 0.123 3,571 Participant Examinations and Questionnaires ...... 5,333[1] 1 6.49 34,611 Participant Telephone Interviews ...... 5,333[1] 1 1.83 9,759 Physician, Medical Examiner, next of kin or other contact follow-up [2] ...... 1,284 1 .50 642 Focus Groups ...... 81 1 1.5 121

Total unique respondents ...... 30,401 48,755 [1] Subset of participant recruitment contact. [2] Annual burden is placed on doctors and respondent relatives/informants through requests for information which will help in the compilation of the number and nature of new fatal and nonfatal events.

Request for Comments: Written [email protected] or by DEPARTMENT OF HEALTH AND comments and/or suggestions from the fax to 202–395–6974, Attention: Desk HUMAN SERVICES public and affected agencies should Officer for NIH. National Institutes of Health address one or more of the following To request more information on the points: (1) Evaluate whether the proposed project or to obtain a copy of proposed collection of information is Center for Scientific Review; Notice of the data collection plans and Closed Meetings necessary for the proper performance of instruments, contact: Ms. Lorraine the function of the agency, including Silsbee, Deputy Project Officer, NIH, Pursuant to section 10(d) of the whether the information will have NHLBI, 6701 Rockledge Drive, MSC practical utility; (2) Evaluate the Federal Advisory Committee Act, as 7936, Bethesda, MD 20892–7936, or call amended (5 U.S.C. Appendix 2), notice accuracy of the agency’s estimate of the non-toll-free number 301–435–0709 or burden of the proposed collection of is hereby given of the following E-mail your request, including your meetings. information, including the validity of address to: [email protected]. the methodology and assumptions used; The meetings will be closed to the (3) Enhance the quality, utility, and Comments Due Date: Comments public in accordance with the clarity of the information to be regarding this information collection are provisions set forth in sections collected; and (4) Minimize the burden best assured of having their full effect if 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., of the collection of information on those received within 30 days of the date of as amended. The grant applications and who are to respond, including the use this publication. the discussions could disclose of appropriate automated, electronic, Dated: December 2, 2008. confidential trade secrets or commercial mechanical, or other technological Michael S. Lauer, property such as patentable material, collection techniques or other forms of and personal information concerning Director, Division of Prevention and information technology. Population Sciences, NHLBI, National individuals associated with the grant Direct Comments to OMB: Written Institutes of Health. applications, the disclosure of which comments and/or suggestions regarding would constitute a clearly unwarranted Dated: December 3, 2008. the item(s) contained in this notice, invasion of personal privacy. Suzanne Freeman, especially regarding the estimated Name of Committee: Center for Scientific Chief, FOIA, NHLBI, National Institutes of public burden and associated response Review Special Emphasis Panel; F05 K 21 Health. time, should be directed to the: Office Fellowships. of Management and Budget, Office of [FR Doc. E8–29427 Filed 12–11–08; 8:45 am] Date: December 10–11, 2008. Regulatory Affairs, BILLING CODE 4140–01–P Time: 8 a.m. to 5 p.m.

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Agenda: To review and evaluate grant individuals associated with the grant DEPARTMENT OF HEALTH AND applications. applications, the disclosure of which HUMAN SERVICES Place: National Institutes of Health, 6701 would constitute a clearly unwarranted Rockledge Drive, Bethesda, MD 20892, invasion of personal privacy. National Institutes of Health (Virtual Meeting). Contact Person: Alessandra M. Bini, PhD, Name of Committee: Center for Scientific National Eye Institute; Notice of Closed Review Special Emphasis Panel Member Scientific Review Officer, Center for Meeting Scientific Review, National Institutes of Conflicts: Skeletal Muscle and Exercise Health, 6701 Rockledge Drive, Room 5142, Physiology. Pursuant to section 10(d) of the MSC 7840, Bethesda, MD 20892, 301–435– Date: December 16, 2008 Federal Advisory Committee Act, as Time: 3:30 p.m. to 5:30 p.m. 1024, [email protected]. amended (5 U.S.C. Appendix 2), notice This notice is being published less than 15 Agenda: To review and evaluate grant applications. is hereby given of the following days prior to the meeting due to the timing meeting. limitations imposed by the review and Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892. funding cycle. The meeting will be closed to the (Telephone Conference Call) public in accordance with the Name of Committee: Center for Scientific Contact Person: John P. Holden, PhD., provisions set forth in sections Review Special Emphasis Panel; Member Scientific Review Officer, Center for Conflicts: Musculoskeletal Tissue 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Scientific Review, National Institutes of as amended. The grant applications and Engineering. Health, 6701 Rockledge Drive, Room 4211, Date: December 11, 2008. MSC 7814, Bethesda, MD 20892, 301–496– the discussions could disclose Time: 11:30 a.m. to 1:30 p.m. 8551, [email protected]. confidential trade secrets or commercial Agenda: To review and evaluate grant This notice is being published less than 15 property such as patentable material, applications. days prior to the meeting due to the timing and personal information concerning Place: National Institutes of Health, 6701 limitations imposed by the review and individuals associated with the grant Rockledge Drive, Bethesda, MD 20892, funding cycle. applications, the disclosure of which (Telephone Conference Call). Name of Committee: Center for Scientific Contact Person: John P. Holden, PhD, would constitute a clearly unwarranted Review Special Emphasis Panel Member Scientific Review Officer, Center for invasion of personal privacy. Conflict: Behavior and Health. Scientific Review, National Institutes of Name of Committee: National Eye Institute Date: December 19, 2008. Health, 6701 Rockledge Drive, Room 4211, Special Emphasis Panel; NEI R24 Research Time: 10 a.m. to 12 p.m. MSC 7814, Bethesda, MD 20892, 301–496– Applications. Agenda: To review and evaluate grant 8551, [email protected]. Date: December 16, 2008. applications. Time: 12 p.m. to 2 p.m. This notice is being published less than 15 Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant days prior to the meeting due to the timing Rockledge Drive, Bethesda, MD 20892. applications. limitations imposed by the review and (Telephone Conference Call) Place: National Institutes of Health, 5635 funding cycle. Contact Person: Gayle M. Boyd, PhD., Fishers Lane, Bethesda, MD 20892, (Catalogue of Federal Domestic Assistance Scientific Review Officer, Center for (Telephone Conference Call). Program Nos. 93.306, Comparative Medicine; Scientific Review, National Institutes of Contact Person: Samuel Rawlings, PhD, 93.333, Clinical Research, 93.306, 93.333, Health, 6701 Rockledge Drive, Room 3141, Chief, Scientific Review Branch, Division of 93.337, 93.393–93.396, 93.837–93.844, MSC 7808, Bethesda, MD 20892, 301–451– Extramural Research, National Eye Institute, 93.846–93.878, 93.892, 93.893, National 9956, [email protected]. 5635 Fishers Lane, Suite 1300, MSC 9300, Institutes of Health, HHS) This notice is being published less than 15 Bethesda, MD 20892–9300, 301–451–2020, days prior to the meeting due to the timing Dated: December 3, 2008. [email protected]. limitations imposed by the review and This notice is being published less than 15 Jennifer Spaeth, funding cycle. days prior to the meeting due to the timing Director, Office of Federal Advisory Name of Committee: Oncological Sciences Committee Policy. limitations imposed by the review and Integrated Review Group Basic Mechanisms funding cycle. [FR Doc. E8–29149 Filed 12–11–08; 8:45 am] of Cancer Therapeutics Study Section. (Catalogue of Federal Domestic Assistance BILLING CODE 4140–01–M Date: January 26–27, 2009. Program Nos. 93.867, Vision Research, Time: 8 a.m. to 5 p.m. National Institutes of Health, HHS) Agenda: To review and evaluate grant DEPARTMENT OF HEALTH AND applications. Dated: December 4, 2008. HUMAN SERVICES Place: Embassy Suites at the Chevy Chase Jennifer Spaeth, Pavilion, 4300 Military Road, NW., Director, Office of Federal Advisory National Institutes of Health Washington, DC 20015. Committee Policy. Contact Person: Lambratu Rahman, PhD., [FR Doc. E8–29287 Filed 12–11–08; 8:45 am] Center For Scientific Review; Notice of Scientific Review Officer, Center for Closed Meetings Scientific Review, National Institutes of BILLING CODE 4140–01–M Health, 6701 Rockledge Drive, Room 6214, Pursuant to section 10(d) of the MSC 7804, Bethesda, MD 20892, 301–451– Federal Advisory Committee Act, as 3493, [email protected]. DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice (Catalogue of Federal Domestic Assistance HUMAN SERVICES is hereby given of the following Program Nos. 93.306, Comparative Medicine; meetings. 93.333, Clinical Research, 93.306, 93.333, National Institutes of Health The meetings will be closed to the 93.337, 93.393–93.396, 93.837–93.844, 93.846–93.878, 93.892, 93.893, National National Institute on Deafness and public in accordance with the Institutes of Health, HHS) Other Communication Disorders; provisions set forth in sections Notice of Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Dated: December 4, 2008. as amended. The grant applications and Jennifer Spaeth, Pursuant to section 10(d) of the the discussions could disclose Director, Office of Federal Advisory Federal Advisory Committee Act, as confidential trade secrets or commercial Committee Policy. amended (5 U.S.C. Appendix 2), notice property such as patentable material, [FR Doc. E8–29286 Filed 12–11–08; 8:45 am] is hereby given of a meeting of the and personal information concerning BILLING CODE 4140–01–M National Deafness and Other

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Communication Disorders Advisory Dated: December 3, 2008. DEPARTMENT OF HEALTH AND Council. Jennifer Spaeth, HUMAN SERVICES The meeting will be open to the Director, Office of Federal Advisory public as indicated below, with Committee Policy. National Institutes of Health attendance limited to space available. [FR Doc. E8–29148 Filed 12–11–08; 8:45 am] Individuals who plan to attend and National Institute on Drug Abuse; need special assistance, such as sign BILLING CODE 4140–01–M Notice of Closed Meeting language interpretation or other Pursuant to section 10(d) of the reasonable accommodations, should DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as notify the Contact Person listed below HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice in advance of the meeting. is hereby given of the following The meeting will be closed to the National Institutes of Health meeting. public in accordance with the The meeting will be closed to the provisions set forth in sections National Institute on Drug Abuse; public in accordance with the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Notice of Closed Meeting provisions set forth in sections as amended. The grant applications and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., the discussions could disclose Pursuant to section 10(d) of the as amended. The grant applications and confidential trade secrets or commercial Federal Advisory Committee Act, as the discussions could disclose property such as patentable material, amended (5 U.S.C. Appendix 2), notice confidential trade secrets or commercial and personal information concerning is hereby given of the following property such as patentable material, individuals associated with the grant meeting. and personal information concerning applications, the disclosure of which individuals associated with the grant The meeting will be closed to the would constitute a clearly unwarranted applications, the disclosure of which invasion of personal privacy. public in accordance with the would constitute a clearly unwarranted Name of Committee: National Deafness and provisions set forth in sections invasion of personal privacy. Other Communication Disorders Advisory 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and Name of Committee: National Institute on Council. Drug Abuse Special Emphasis Panel; Time Date: January 23, 2009. the discussions could disclose Sensitive Research Opportunities. Closed: 8:30 a.m. to 10:50 a.m. confidential trade secrets or commercial Date: December 18, 2008. Agenda: To review and evaluate grant property such as patentable material, Time: 1:30 p.m. to 3:30 p.m. applications. Agenda: To review and evaluate grant Place: National Institutes of Health, and personal information concerning individuals associated with the grant applications. Building 31, 31 Center Drive, Conference Place: National Institutes of Health, 6101 Room 10, Bethesda, MD 20892. applications, the disclosure of which Executive Boulevard, Rockville, MD 20852, Open: 10:50 a.m. to 2:30 p.m. would constitute a clearly unwarranted (Telephone Conference Call). Agenda: Staff reports on divisional, invasion of personal privacy. Contact Person: Nadine Rogers, PhD, programmatic, and special activities. Scientific Review Administrator, Office of Name of Committee: National Institute on Place: National Institutes of Health, Extramural Affairs, National Institute on Building 31, 31 Center Drive, Conference Drug Abuse Initial Review Group; Treatment Drug Abuse, NIH, DHHS, Room 220, MSC Room 10, Bethesda, MD 20892. Research Subcommittee. 8401, 6101 Executive Boulevard, Bethesda, Contact Person: Craig A. Jordan, PhD, Date: February 10, 2009. MD 20892–8401, 301–402–2105, Director, Division of Extramural Activities, Time: 9 a.m. to 6 p.m. [email protected] gov. NIDCD, NIH, Executive Plaza South, Room Agenda: To review and evaluate grant This notice is being published less than 15 400C, 6120 Executive Blvd., Bethesda, MD applications. days prior to the meeting due to the timing 20892–7180, 301–496–8693, Place: Melrose Hotel, 2430 Pennsylvania limitations imposed by the review and [email protected]. Ave., NW., Washington, DC 20037. funding cycle. Any interested person may file written (Catalogue of Federal Domestic Assistance comments with the committee by forwarding Contact Person: Kristen V Huntley, PhD, Scientific Review Administrator, Office of Program Nos. 93.279, Drug Abuse and the statement to the Contact Person listed on Addiction Research Programs, National Extramural Affairs, National Institute on this notice. The statement should include the Institutes of Health, HHS) name, address, telephone number and when Drug Abuse, NIH, DHHS, Room 220, MSC applicable, the business or professional 8401, 6101 Executive Boulevard, Bethesda, Dated: December 4, 2008. affiliation of the interested person. MD 20892–8401, 301–435–1433, Jennifer Spaeth, In the interest of security, NIH has [email protected]. Director, Office of Federal Advisory instituted stringent procedures for entrance Committee Policy. onto the NIH campus. All visitor vehicles, (Catalogue of Federal Domestic Assistance [FR Doc. E8–29284 Filed 12–11–08; 8:45 am] including taxicabs, hotel, and airport shuttles Program Nos. 93.279, Drug Abuse and will be inspected before being allowed on Addiction Research Programs, National BILLING CODE 4140–01–M campus. Visitors will be asked to show one Institutes of Health, HHS) form of identification (for example, a December 4, 2008. government-issued photo ID, driver’s license, DEPARTMENT OF HEALTH AND or passport) and to state the purpose of their Jennifer Spaeth, HUMAN SERVICES visit. Director, Office of Federal Advisory Information is also available on the Committee Policy. National Institutes of Health Institute’s/Center’s home page: http:// [FR Doc. E8–29274 Filed 12–11–08; 8:45 am] www.nidcd.nih.gov/about/groups/ndcdac/, National Institute on Drug Abuse; where an agenda and any additional BILLING CODE 4140–01–M Notice of Closed Meetings information for the meeting will be posted when available. Pursuant to section 10(d) of the (Catalogue of Federal Domestic Assistance Federal Advisory Committee Act, as Program Nos. 93.173, Biological Research amended (5 U.S.C. Appendix 2), notice Related to Deafness and Communicative is hereby given of the following Disorders, National Institutes of Health, HHS) meetings.

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The meetings will be closed to the provisions set forth in sections DATES: FEMA and HUD executed the public in accordance with the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Interagency Agreement and established provisions set forth in sections as amended. The contract proposals and DHAP–Ike for Hurricanes Ike and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., the discussions could disclose Gustav on September 23, 2008. as amended. The grant applications and confidential trade secrets or commercial ADDRESSES: Details about DHAP–Ike the discussions could disclose property such as patentable material, will be published by HUD in a confidential trade secrets or commercial and personal information concerning subsequent Federal Register Notice. In property such as patentable material, individuals associated with the contract addition, a copy of the full text of the and personal information concerning proposals, the disclosure of which FEMA–HUD IAA can be accessed via individuals associated with the grant would constitute a clearly unwarranted the FEMA Web site at http:// applications, the disclosure of which invasion of personal privacy. www.fema.gov. Other related program would constitute a clearly unwarranted Name of Committee: National Institute on information on DHAP–Ike is available invasion of personal privacy. Drug Abuse; Special Emphasis Panel NIDA on the HUD Web site at http://hud.gov/ Name of Committee: National Institute on Center for Genetic Studies. offices/pih/publications/ike.cfm. Drug Abuse Special Emphasis Panel, Genes Date: January 27, 2009. Time: 9 a.m. to 1 Periodic updates on DHAP–Ike will be p.m. Environment and Health Initiative. posted on FEMA and HUD’s Web sites. Date: January 28–29, 2009. Agenda: To review and evaluate contract Time: 8 a.m. to 5 p.m. proposals. FOR FURTHER INFORMATION CONTACT: Berl Agenda: To review and evaluate grant Place: Courtyard by Marriott Rockville, D. Jones, Jr., Director, Individual applications. 2500 Research Boulevard, Rockville, MD Assistance Division, Disaster Assistance Place: Mandarin Oriental Hotel, 1330 20850. Directorate, Federal Emergency Maryland Ave., SW., Washington, DC 20024. Contact Person: Lyle Furr, Contract Review Specialist, Office of Extramural Affairs, Management Agency, Department of Contact Person: Gerald L. McLaughlin, Homeland Security, 500 C Street, SW., PhD, Scientific Review Administrator, Office National Institute on Drug Abuse, NIH, of Extramural Affairs, National Institute on DHHS, Room 220, MSC 8401, 6101 Executive Washington, DC 20472, telephone (202) Drug Abuse, NIH, DHHS, Room 220, MSC Boulevard, Bethesda, MD 20892–8401, (301) 212–1000 (this is not a toll-free 8401, 6101 Executive Blvd., Bethesda, MD 435–1439, lf33c.nih.gov. number). Individuals with speech or 20892–8401, 301–402–6626, (Catalogue of Federal Domestic Assistance hearing impairments may access this [email protected]. Program Nos. 93.279, Drug Abuse and number through TTY by calling the toll- Name of Committee: National Institute on Addiction Research Programs, National free Federal Information Relay Service Drug Abuse Initial Review Group, Treatment Institutes of Health, HHS) at 800–877–8339. Research Subcommittee. Dated: December 4, 2008. Date: February 10, 2009. SUPPLEMENTARY INFORMATION: In Time: 9 a.m. to 6 p.m. Jennifer Spaeth, September 2008, Hurricanes Ike and Agenda: To review and evaluate grant Director, Office of Federal Advisory Gustav struck the United States causing applications. Committee Policy. significant damage to property and the Place: Melrose Hotel, 2430 Pennsylvania [FR Doc. E8–29290 Filed 12–11–08; 8:45 am] displacement of tens of thousands of Ave., NW., Washington, DC 20037. BILLING CODE 4140–01–M individuals and families from their Contact Person: Kristen V Huntley, PhD, homes and communities. Under section Scientific Review Administrator, Office of 408 of the Robert T. Stafford Disaster Extramural Affairs, National Institute on Drug Abuse, NIH, DHHS, Room 220, MSC DEPARTMENT OF HOMELAND Relief and Emergency Assistance Act, 8401, 6101 Executive Boulevard, Bethesda, SECURITY 42 U.S.C. 5174, the Federal Emergency MD 20892–8401, 301–435–1433, Management Agency (FEMA) disaster [email protected]. Federal Emergency Management housing programs are short-term (Catalogue of Federal Domestic Assistance Agency assistance programs with a limitation of Program Nos. 93.279, Drug Abuse and 18 months, unless extended by the Addiction Research Programs, National Disaster Housing Assistance Program President. Institutes of Health, HHS) (DHAP)–Ike Because HUD has the expertise in Dated: December 4, 2008. AGENCY: Federal Emergency administering various Federal housing Jennifer Spaeth, Management Agency, DHS. programs, FEMA is relying on HUD’s Director, Office of Federal Advisory ACTION: Notice. experience to design, implement, and Committee Policy. administer DHAP–Ike for Hurricanes Ike [FR Doc. E8–29288 Filed 12–11–08; 8:45 am] SUMMARY: This document provides and Gustav in coordination with and on BILLING CODE 4140–01–M notice that the Federal Emergency behalf of FEMA. Under DHAP–Ike, HUD Management Agency (FEMA) and the will provide housing assistance, Department of Housing and Urban security and utility deposits, and case DEPARTMENT OF HEALTH AND Development (HUD) executed an management services to individuals and HUMAN SERVICES Interagency Agreement (IAA) families displaced by Hurricane Gustav establishing a grant program called and Ike. The local Public Housing National Institutes of Health ‘‘Disaster Housing Assistance Program Agencies (PHAs), which currently (DHAP)–Ike’’ for Hurricanes Ike and administer the Housing Choice Voucher National Institute on Drug Abuse; Gustav. DHAP–Ike is a temporary Program (HCVP) and the Disaster Notice of Closed Meeting housing rental assistance and case Housing Assistance Program (DHAP) for Pursuant to section 10(d) of the management program for identified Hurricanes Katrina and Rita, will be Federal Advisory Committee Act, as individuals and families displaced by designated by HUD to administer amended (5 U.S.C. Appendix 2), notice Hurricanes Ike and Gustav. Under the DHAP–Ike in their jurisdictions. PHAs is hereby given of the following IAA, HUD acts as the servicing agency will be awarded grants from FEMA to meeting. of DHAP–Ike and will begin provide rent subsidies to eligible The meeting will be closed to the administration of the program effective families for a period not to exceed 17 public in accordance with the November 1, 2008. months commencing November 1, 2008

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and ending no later than March 13, which will include a needs assessment DATES: Written comments should be 2010. and individual development plan (IDP) received on or before February 10, 2009, Families eligible for DHAP–Ike are for each family. The objective of HUD to be assured of consideration. those identified by FEMA who currently case management services is to promote ADDRESSES: Direct all written comments receive or are eligible to receive initial self-sufficiency for the participating to U.S. Customs and Border Protection, and/or continued rental assistance family. Attn.: Tracey Denning, 1300 authorized under section 408 of the Details about DHAP–Ike will be Pennsylvania Avenue, NW., Room Stafford Act, 42 U.S.C. 5174, pursuant published by HUD in a subsequent 3.2.C, Washington, DC 20229. to the Presidential major disaster Federal Register Notice. In addition, a FOR FURTHER INFORMATION CONTACT: declarations resulting from Hurricane copy of the full text of the FEMA–HUD Requests for additional information Ike. FEMA will rely on the eligibility IAA can be accessed via the FEMA Web should be directed to U.S. Customs and standards established for its temporary site at http://www.fema.gov. Other Border Protection, Attn.: Tracey housing program at 44 CFR 206.113 and related program information on DHAP– Denning, 1300 Pennsylvania Avenue, 44 CFR 206.114 in determining who is Ike is available on the HUD Web site at NW., Room 3.2C, Washington, DC eligible for referral to DHAP–Ike. All http://hud.gov/offices/pih/publications/ 20229, Tel. (202) 344–1429. eligible families wishing to participate ike.cfm. Periodic updates on DHAP–Ike SUPPLEMENTARY INFORMATION: CBP in DHAP–Ike must sign and execute a will be posted on FEMA and HUD’s invites the general public and other HUD-provided DHAP lease or Web sites. addendum to their current lease, with Federal agencies to comment on Authority: Legal authority for DHAP–Ike is proposed and/or continuing information their landlord, which sets forth the new based on the Department of Homeland obligations to receive the rental subsidy. collections pursuant to the Paperwork Security’s (DHS) general grant authority Reduction Act of 1995 (Pub. L. 104–13; Similarly, landlords who agree to under section 102(b)(2) of the Homeland participate in DHAP–Ike must sign and Security Act, 6 U.S.C. 112, and sections 44 U.S.C. 3505(c)(2)). The comments execute a Disaster Rent Subsidy 306(a), 408(b)(1), and 426 of the Robert T. should address: (a) Whether the Contract (DRSC) with the PHA outlining Stafford Disaster Relief and Emergency collection of information is necessary the new conditions and obligations, in Assistance Act (Stafford Act), 42 U.S.C. for the proper performance of the addition to signing a lease addendum 5149(a), 5174(b)(1), and 5189d, respectively. functions of the agency, including with the tenant. As a servicing agency under a grant from whether the information shall have On November 1, 2008, HUD assumed FEMA, and consistent with The Economy practical utility; (b) the accuracy of the the responsibilities for providing rental Act (31 U.S.C. 1535), HUD derives all agency’s estimates of the burden of the authority under the program from FEMA and collection of information; (c) ways to assistance and case management to any and all actions originate from FEMA’s families identified by FEMA. Beginning authority. enhance the quality, utility, and clarity May 1, 2009, the Incremental Rent of the information to be collected; (d) Transition (IRT) will be implemented, Dated: December 5, 2008. ways to minimize the burden including under which HUD will reduce the R. David Paulison, the use of automated collection amount of rent paid incrementally by Administrator, Federal Emergency techniques or the use of other forms of $50 and individuals and families are Management Agency. information technology; and (e) required to contribute $50 towards their [FR Doc. E8–29438 Filed 12–11–08; 8:45 am] estimates of capital or start-up costs and rental payment. Every month thereafter, BILLING CODE 9111–23–P costs of operations, maintenance, and the individual or family’s rent purchase of services to provide contribution will increase in increments information. The comments that are of $50, as HUD’s provision is reduced DEPARTMENT OF HOMELAND submitted will be summarized and by an equal amount, until the program SECURITY included in the CBP request for Office ends in March 2010. The program of Management and Budget (OMB) provides a hardship waiver for the IRT U.S. Customs and Border Protection approval. All comments will become a if individuals and families demonstrate Agency Information Collection matter of public record. In this they cannot afford their incremental Activities Arrival and Departure Record document CBP is soliciting comments rent increase. concerning the following information No later than August 1, 2009, AGENCY: Customs and Border Protection collection: individuals and families whose rent (CBP), Department of Homeland Title: Arrival and Departure Record, burden is less than 30 percent of their Security Nonimmigrant Visa Waiver Arrival/ post-disaster gross income, taking into ACTION: 60-Day Notice and request for Departure, the Electronic System for account existing mortgages for primary comments; Extension of an existing Travel Authorization (ESTA). residences that remain uninhabitable, information Collection: 1651–0111. OMB Number: 1651–0111. will no longer be eligible for DHAP–Ike. Form Numbers: I–94 and I–94W. Individuals and families whose rent SUMMARY: As part of its continuing effort Abstract: Form I–94 (Arrival/ burden and mortgage exceed 30 percent to reduce paperwork and respondent Departure Record) and Form I–94W of their post-disaster income will burden, CBP invites the general public (Nonimmigrant Visa Waiver Arrival/ continue to receive assistance, subject to and other Federal agencies to comment Departure Record) are used to document the IRT, through March 2010 when the on an information collection a traveler’s admission into the United program ends. Details of the program, requirement concerning the Form I–94 States. These forms include date of including descriptions of IRT, hardship (Arrival/Departure Record), the Form I– arrival, visa classification and the date provision, and 30 percent post-disaster 94W (Nonimmigrant Visa Waiver the authorized stay expires. The forms income determinations will be spelled Arrival/Departure), and the Electronic are also used by business employers and out in the Federal Register Notice and System for Travel Authorization other organizations to confirm legal standard operating procedures (ESTA). This request for comment is status in the United States. The published by HUD. being made pursuant to the Paperwork Electronic System for Travel The designated PHAs will also Reduction Act of 1995 (Pub. L. 104–13; Authorization (ESTA) applies to aliens provide case management services, 44 U.S.C. 3505(c)(2)). traveling to the United States under the

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Visa Waiver Program (VWP) and This process is conducted in accordance Estimated Number of Respondents: requires that VWP travelers provide with 5 CFR 1320.10. 3,000. information electronically to CBP before DATES: Written comments should be Estimated Number of Annual embarking on travel to the United received on or before January 12, 2009. Responses: 3,000. Estimated Time per Response: 23 States. The recent expansion of the VWP ADDRESSES: Interested persons are minutes. to include seven additional countries invited to submit written comments on resulted in a change to the burden hours Estimated Total Annual Burden the proposed information collection to Hours: 1,199. of this collection of information. the Office of Information and Regulatory Current Actions: This submission is If additional information is required Affairs, Office of Management and contact: Tracey Denning, U.S. Customs being made to extend the expiration Budget. Comments should be addressed date. and Border Protection, 1300 to the OMB Desk Officer for Customs Pennsylvania Avenue, NW., Room Type of Review: Extension (with and Border Protection, Department of change). 3.2.C, Washington, DC 20229, at 202– Homeland Security, and sent via 344–1429. Affected Public: Individuals. electronic mail to Estimated Number of Respondents (I– [email protected] or faxed Dated: December 4, 2008. 94 and I–94W): 30,924,380. to (202) 395–6974. Tracey Denning, Estimated Number of Respondents Agency Clearance Officer, Customs and (ESTA): 18,000,000. SUPPLEMENTARY INFORMATION: U.S. Customs and Border Protection (CBP) Border Protection. Estimated Time per Response (I–94 [FR Doc. E8–29424 Filed 12–11–08; 8:45 am] and I–94W): 8 minutes. encourages the general public and BILLING CODE 9111–14–P Estimated Time per Response (ESTA): affected Federal agencies to submit 15 minutes. written comments and suggestions on Estimated Total Annual Burden proposed and/or continuing information DEPARTMENT OF HOUSING AND Hours: 8,623,249. collection requests pursuant to the URBAN DEVELOPMENT Estimated Total Annualized Cost on Paperwork Reduction Act (Pub. L. 104– the Public: $185,546,280. 13). Your comments should address one [Docket No. FR–5194–N–17] of the following four points: Dated: December 3, 2008. (1) Evaluate whether the proposed Notice of Proposed Information Tracey Denning, collection of information is necessary Collection for Public Comment; Agency Clearance Officer, Customs and for the proper performance of the Training Evaluation Form Border Protection. functions of the agency/component, [FR Doc. E8–29423 Filed 12–11–08; 8:45 am] including whether the information will AGENCY: Office of the Assistant BILLING CODE 9111–14–P have practical utility; Secretary for Public and Indian (2) Evaluate the accuracy of the Housing, HUD. agencies/components’ estimate of the ACTION: Notice. DEPARTMENT OF HOMELAND burden of the proposed collection of SECURITY SUMMARY: The proposed information information, including the validity of collection requirement described below the methodology and assumptions used; U.S. Customs and Border Protection will be submitted to the Office of (3) Enhance the quality, utility, and Management and Budget (OMB) for Agency Information Collection clarity of the information to be review, as required by the Paperwork Activities: Complaint Management collected; and Reduction Act. The Department is (4) Minimize the burden of the System soliciting public comments on the collections of information on those who subject proposal. AGENCY: U.S. Customs and Border are to respond, including the use of DATES: Protection, Department of Homeland appropriate automated, electronic, Comments Due Date: February Security. mechanical, or other technological 10, 2009. ADDRESSES: Interested persons are ACTION: 30-Day Notice and request for collection techniques or other forms of comments; Request for a new collection information technology, e.g., permitting invited to submit comments regarding of information. electronic submission of responses. this proposal. Comments should refer to Title: Complaint Management System. the proposal by name or OMB Control SUMMARY: U.S. Customs and Border Form Number: None. Number and should be sent to: Lillian Protection (CBP) of the Department of Abstract: CBP is creating the L. Deitzer, Department Reports Homeland Security has submitted the Complaint Management System (CMS) Management Officer, ODAM, following information collection request in order to allow anybody who has Department of Housing and Urban to the Office of Management and Budget interacted with CBP, either as a result of Development, 451 7th Street, SW., (OMB) for review and approval in importing or exporting goods, traveling Room 4116, Washington, DC 20410– accordance with the Paperwork to or from the U.S., seeking a job, or 5000; telephone: 202–708–2374, (this is Reduction Act: Complaint Management simply living in an area where CBP not a toll-free number) or e-mail Ms. System. This is a new collection of conducts operations such as border Deitzer at [email protected] information collection. This document patrol checkpoints, to file a complaint for a copy of the proposed form and is published to obtain comments from or comment about their CBP experience other available information. the public and affected agencies. This through an on-line portal. FOR FURTHER INFORMATION CONTACT: proposed information collection was Current Actions: This submission is Mary Schulhof, Office of Policy, previously published in the Federal being made to establish a new collection Programs and Legislative Initiatives, Register (73 FR 58253) on October 6, of information. PIH, Department of Housing and Urban 2008, allowing for a 60-day comment Type of Review: New collection of Development, 451 Seventh Street, SW., period. One public comment was information. Washington, DC 20410; telephone: 202– received. This notice allows for an Affected Public: Individuals and 708–0713, (this is not a toll-free additional 30 days for public comments. businesses. number).

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SUPPLEMENTARY INFORMATION: The related to the transition and SUPPLEMENTARY INFORMATION: In Department will submit the proposed implementation of asset-based accordance with the December 12, 1988 information collection to OMB for management in public housing.’’ The court order in National Coalition for the review, as required by the Paperwork contract now in effect will provide for Homeless v. Veterans Administration, Reduction Act of 1995 (44 U.S.C. web-based training, on-site seminars No. 88–2503–OG (D.D.C.), HUD Chapter 35, as amended). This notice is and on-site technical assistance to assist publishes a Notice, on a weekly basis, soliciting comments from members of PHAs in implementing asset identifying unutilized, underutilized, the public and affected agencies management. The Training Evaluation excess and surplus Federal buildings concerning the proposed collection of Form will be used by the Office of and real property that HUD has information to: (1) Evaluate whether the Public and Indian Housing to determine reviewed for suitability for use to assist proposed collection of information is how the training and technical the homeless. Today’s Notice is for the necessary for the proper performance of assistance can be improved to meet PHA purpose of announcing that no the functions of the agency, including needs. additional properties have been whether the information will have Agency form number, if applicable: determined suitable or unsuitable this practical utility; (2) evaluate the Pending. week. accuracy of the agency’s estimate of the Members of affected public: Public Dated: December 4, 2008. burden of the proposed collection of housing agencies. information; (3) enhance the quality, Estimation of the total number of Mark R. Johnston, utility, and clarity of the information to hours needed to prepare the information Deputy Assistant Secretary for Special Needs. be collected; and (4) minimize the collection including number of [FR Doc. E8–29144 Filed 12–11–08; 8:45 am] burden of the collection of information respondents: The estimated number of BILLING CODE 4210–67–P on those who are to respond, including respondents is 29,288 annually with one through the use of appropriate response per respondent. The average automated collection techniques or number for each response is .033 hours, DEPARTMENT OF HOUSING AND other forms of information technology, for a total reporting burden of 966 URBAN DEVELOPMENT e.g., permitting electronic submission of hours. [Docket No. FR–5218–N–02] responses. Status of the proposed information This Notice also lists the following collection: New collection. Notice of Funding Availability (NOFA) information: Authority: Section 3506 of the Paperwork for the Section 202 Demonstration Pre- Title of Proposal: Training Evaluation Reduction Act of 1995, 44 U.S.C. Chapter 35, Development Grant Program: Form. as amended. Extension of Application Due Date OMB Control Number: 2577— Pending. Dated: December 1, 2008. AGENCY: Office of the Assistant Description of the need for the Bessy Kong, Secretary for Housing—Federal Housing information and proposed use: On Deputy Assistant Secretary for Policy, Commissioner, HUD. September 19, 2005 (70 FR 54983), HUD Programs and Legislative Initiatives. ACTION: Notice of Funding Availability published a final rule amending the [FR Doc. E8–29145 Filed 12–11–08; 8:45 am] (NOFA), Extension of Application Due regulations of the Public Housing BILLING CODE 4210–67–P Date. Operating Fund Program at 24 CFR part 990, which was developed through SUMMARY: On October 10, 2008, HUD negotiated rulemaking. Part 990 DEPARTMENT OF HOUSING AND published the NOFA for the Section 202 provides a new formula for distributing URBAN DEVELOPMENT Demonstration Pre-Development Grant Program. Through this NOFA, HUD is operating subsidy to public housing [Docket No. FR–5186–N–50] agencies (PHAs) and establishes making available approximately $20 requirements for PHAs to convert to Federal Property Suitable as Facilities million for pre-development grants to asset management. To Assist the Homeless private nonprofit organizations and Subpart H of the part 990 regulations consumer cooperatives in connection (§§ 990.255 to 990.290) establishes the AGENCY: Office of the Assistant with the development of housing under requirements regarding asset Secretary for Community Planning and the Section 202 Supportive Housing for management. Under § 990.260(a), PHAs Development, HUD. the Elderly program. The October 10, that own and operate 250 or more ACTION: Notice. 2008 publication established December dwelling rental units must operate using 16, 2008 as the deadline date for the SUMMARY: This Notice identifies an asset management model consistent submission of applications. Today’s unutilized, underutilized, excess, and with the subpart H regulations. Federal Register publication extends surplus Federal property reviewed by However, for calendar year 2008, that the deadline date for the submission of HUD for suitability for possible use to regulation is superseded by § 225 of applications to February 18, 2009. HUD assist the homeless. Title II of Division K of the Consolidated is also extending the deadline for DATES: Appropriations Act, 2008, Public Law Effective Date: December 12, applicants to submit requests for 110–161 (approved December 26, 2007). 2008. waivers from the electronic application Under that law, PHAs that own or FOR FURTHER INFORMATION CONTACT: submission requirements to February operate 400 or fewer units may elect to Kathy Ezzell, Department of Housing 11, 2009. transition to asset management, but they and Urban Development, 451 Seventh DATES: The application deadline date for are not required to do so. Street SW., Room 7262, Washington, DC the Section 202 Demonstration Pre- The Consolidated Appropriations Act, 20410; telephone (202) 708–1234; TTY Development Grant Program is February 2008, Public Law 110–161, also number for the hearing- and speech- 18, 2009. provided ‘‘ * * * $5,940,000 for impaired (202) 708–2565, (these FOR FURTHER INFORMATION CONTACT: competitive grants and contracts to third telephone numbers are not toll-free), or Individuals may direct questions parties for the provision of technical call the toll-free Title V information line regarding the Section 202 assistance to public housing agencies at 800–927–7588. Demonstration Pre-Development Grant

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Program to the individuals listed in 27032), the Notice of HUD’s FY2008 708–3587. Persons with hearing or Section VII of the October 10, 2008, SuperNOFA for HUD’s Discretionary speech impairments may access this Section 202 Demonstration Pre- Programs; Correction for Section 202 number via TTY by calling the Federal Development Grant Program NOFA. For and Section 811 Programs published on Information Relay Service at 800–877– technical assistance in downloading and June 9, 2008 (72 FR 32592), and Section 8339. Facsimile inquiries may be sent to submitting an application package IV of the Section 202 Demonstration Ms. Kome at 202–401–2044. (Except for through http://www.grants.gov/ Pre-Development Grant Program NOFA the ‘‘800’’ number, these telephone applicants/apply_for_grants.jsp, contact published on October 10, 2008 (72 FR numbers are not toll free.) the Grants.gov Help Desk at 1–800–518– 60312), for further information about SUPPLEMENTARY INFORMATION: GRANTS, or by sending an e-mail to application, submission, and timely Authority To Grant Waivers [email protected]. receipt requirements. The Department of Defense, SUPPLEMENTARY INFORMATION: On Dated: December 5, 2008. Emergency Supplemental October 10, 2008 (73 FR 60312), HUD Brian D. Montgomery, Appropriations To Address Hurricanes published its NOFA for the Section 202 Assistant Secretary for Housing—Federal in the Gulf of Mexico, and Pandemic Demonstration Pre-Development Grant Housing Commissioner. Influenza Act, 2006 (Pub. L. 109–148, Program, and established December 16, [FR Doc. E8–29425 Filed 12–11–08; 8:45 am] approved December 30, 2005) (the 2006 2008 as the deadline date for the BILLING CODE 4210–67–P Act) appropriated $11.5 billion in CDBG submission of applications. Through the funds for necessary expenses related to NOFA, HUD is making available disaster relief, long-term recovery, and DEPARTMENT OF HOUSING AND approximately $20 million for pre- restoration of infrastructure directly URBAN DEVELOPMENT development grants to private nonprofit related to the consequences of the organizations and consumer [Docket No. FR–5251–N–01] covered disasters. The State of cooperatives in connection with the Mississippi received an allocation of development of housing under the Reconsideration of Waivers Granted to $5,058,185,000 from this appropriation. Section 202 Supportive Housing for the and Alternative Requirements for the The 2006 Act authorized the Secretary Elderly program. HUD stated in the State of Mississippi’s CDBG Disaster to waive, or specify alternative October 10, 2008, NOFA that funding Recovery Grant Under the Department requirements for, any provision of any awards under the Section 202 of Defense Emergency Supplemental statute or regulation that the Secretary Demonstration Pre-Development Grant Appropriations To Address Hurricanes administers in connection with the program would be restricted to in the Gulf of Mexico, and Pandemic obligation by the Secretary or use by the applicants selected for Fund Influenza Act, 2006 recipient of these funds and guarantees, Reservation Awards under the FY2008 AGENCY: Office of the Secretary, HUD. except for requirements related to fair Section 202 Supportive Housing for the housing, nondiscrimination, labor ACTION: Notice of reconsidered waivers, Elderly program. standards, and the environment, upon a alternative requirements, and statutory Today’s Federal Register publication request by the State and a finding by the program requirements. extends the deadline date for the Secretary that such a waiver would not submission of applications for the SUMMARY: This notice describes HUD’s be inconsistent with the overall purpose Section 202 Demonstration Pre- reconsideration of some of the of the statute. The law further provided Development Grant program to February additional waivers and alternative that the Secretary may waive the 18, 2009. Similarly, HUD extending the requirements applicable to the requirement that activities benefit deadline for applicants to submit Community Development Block Grant persons of low and moderate income, requests for waivers from the electronic (CDBG) disaster recovery grant provided except that at least 50 percent of the application submission requirements to to the State of Mississippi for the funds granted must benefit primarily February 11, 2009. HUD is extending purpose of assisting in the recovery in persons of low and moderate income, the application submission deadline the most impacted and distressed areas unless the Secretary otherwise makes a date to permit it to complete selections related to the consequences of finding of compelling need. under FY2008 Section 202 Supportive Hurricane Katrina in 2005. HUD Additionally, regulatory waiver Housing for the Elderly program. This previously published an allocation and authority is provided by 24 CFR 5.110. extension will ensure that ineligible application notice on February 13, 2006, The following waivers and alternative Section 202 applicants need not go applicable to this grant and four others requirements came in response to through the expense of preparing and under the same appropriation, and written requests from the State of submitting an application for funding reconsidered the waivers in that notice Mississippi and are being retained, with under the Section 202 Demonstration on August 8, 2008. The original June 14, the exception of some of the overall Pre-Development Grant program if they 2006, notice has now been reconsidered benefit waivers, after reconsideration. are not eligible to receive this funding. and all waivers are being retained, with The Secretary has found that the following waivers and alternative Deadline for Applications the exception of some of the overall benefit waivers. requirements, as described below, are The application deadline date for the not inconsistent with the overall DATES: Section 202 Demonstration Pre- Effective Date: December 17, purpose of 42 U.S.C. 5301 et seq., Title Development Grant Program is February 2008. I of the Housing and Community 18, 2009. All applications must be FOR FURTHER INFORMATION CONTACT: Development Act of 1974, as amended received and validated by Grants.gov no Jessie Handforth Kome, Director, (the 1974 Act); or of 42 U.S.C. 12704 et later than 11:59:59 p.m. Eastern Time on Disaster Recovery and Special Issues seq., the Cranston-Gonzalez National the application deadline date. Refer to Division, Office of Block Grant Affordable Housing Act, as amended. the General Section of the SuperNOFA Assistance, Department of Housing and Under the requirements of the published on March 19, 2008 (72 FR Urban Development, 451 Seventh Street, Department of Housing and Urban 14882), the FY2008 SuperNOFA SW., Room 7286, Washington, DC Development Act, as amended (42 published on May 12, 2008 (72 FR 20410–7000, telephone number 202– U.S.C. 3535(q)), regulatory waivers must

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be published in the Federal Register. state CDBG program requires that local state for the use of program income. The Department is also using this notice government grant recipients of Prior to 2002, program income earned to provide information about other ways planning-only grants must document on disaster recovery grants was usually in which the requirements for this grant that the use of funds meets a national program income in accordance with the vary from regular CDBG program rules. objective. In the state CDBG program, rules of the regular CDBG program of Therefore, HUD is using this notice to these planning grants are typically used the applicable state and lost its disaster make public alternative requirements for individual project plans. By contrast, recovery grant identity, thus losing use and to note the applicability of disaster planning activities carried out by of the waivers and streamlined recovery-related statutory provisions. entitlement communities are more alternative requirements. Also, the state Compiling this information in a single likely to include non-project specific CDBG program rule and law are notice creates a helpful resource for plans such as functional land use plans, designed for a program in which the Mississippi grant administrators and historic preservation plans, state distributes all funds rather than HUD field staff. Waivers and alternative comprehensive plans, development of carrying out activities directly. The 1974 requirements regarding the common housing codes, and neighborhood plans Act specifically provides for a local application and reporting process for all related to guiding long-term community government receiving CDBG grants from grantees under the 2006 Act were development efforts comprising a state to retain program income if it published in a prior notice published multiple activities funded by multiple uses the funds for additional eligible February 13, 2006 (71 FR 7666) and sources. In the annual entitlement activities under the annual CDBG retained in a notice published on program, these more general stand-alone program. The 1974 Act allows the state August 8, 2008 (73 FR 46312). planning activities are presumed to to require return of the program income Except as described in notices meet a national objective under the to the state under certain circumstances. regarding this grant, the statutory and requirements at 24 CFR 570.208(d)(4). The notice waived the existing statute regulatory provisions governing the The Department noted that almost all and regulations to give the state, in all CDBG program for states, including effective CDBG disaster recoveries in the circumstances, the choice of whether or those at 24 CFR part 570, shall apply to past have relied on some form of area- not a local government receiving a the use of these funds. wide or comprehensive planning distribution of CDBG disaster recovery activity to guide overall redevelopment funds and using program income for Descriptions of Changes independent of the ultimate source of activities in the Action Plan could retain This section of the notice briefly implementation funds. Therefore, the this income and use it for additional describes the basis for each waiver and Department has removed the eligibility disaster recovery activities. In addition, provides an explanation of related requirement that CDBG disaster the notice allowed program income to alternative requirements, if additional recovery assisted planning-only grants the disaster recovery grant generated by explanation is necessary. or state directly administered planning activities undertaken directly by the Except as provided in the October 30, activities that will guide recovery in state or its agent(s) to retain the original 2006, and August 8, 2008, notices, the accordance with the appropriations act, disaster recovery grant’s alternative waivers, alternative requirements, and must comply with the state CDBG requirements and waivers and to remain statutory changes apply only to the program rules at 24 CFR 570.483(b)(5) or under the state’s discretion until grant CDBG supplemental disaster recovery (c)(3). closeout, at which point any program funds appropriated in the 2006 Act and Compensation for disaster-related income on hand or received allocated to the State of Mississippi. losses. The state is providing subsequently would become program These actions provide additional compensation to homeowners who lived income to the state’s annual CDBG flexibility in program design and outside the floodplain and whose homes program. The alternative requirements implementation and note statutory were damaged by flooding during the provide all the necessary conforming requirements unique to this covered disasters, if the homeowners changes to the program income appropriation. agreed to meet the stipulations of the regulations. published program design. The state is Eligibility also providing compensation to Relocation Requirements Eligibility—housing related. The homeowners affected by the disaster in HUD provided and is continuing a waiver of section 105(a) that allows new other circumstances, under Phase II and limited waiver of the relocation housing construction and of section other aspects of the state’s homeowner requirements. HUD waived the one-for- 105(a)(24) to allow homeownership compensation program. The Department one replacement of low- and moderate- assistance for families whose income is has waived the 1974 Act and associated income housing units demolished or up to 120 percent of median income and regulations to make this use of grant converted using CDBG funds payment of up to 100 percent of a funds eligible. requirement for housing units damaged housing downpayment is necessary Anti-pirating. The limited waiver of by one or more disasters. HUD has following major disasters in which large the anti-pirating requirements allowed waived this requirement because it did numbers of affordable housing units the flexibility to provide assistance to a not take into account the large, sudden have been damaged or destroyed, as is business located in another state or changes a major disaster may cause to the case in the disaster eligible under market area within the same state if the the local housing stock, population, or this notice. The state requested that business was displaced from a declared local economy. HUD broaden the section 105(a)(24) area within the state by the disaster and Further, the requirement did not take waiver to allow it to serve families with the business wishes to return. This into account the threats to public health income up to 120 percent of median waiver is necessary to allow a grantee and safety and to economic income to implement its Long Term affected by a major disaster to rebuild its revitalization that may be caused by the Workforce Housing program in employment base. presence of disaster-damaged structures accordance with its accepted Action that are unsuitable for rehabilitation. Plan for Disaster Recovery. Program Income Left unchanged, the requirement could General planning activities use A combination of CDBG provisions have impeded disaster recovery and entitlement presumption. The annual limited the flexibility available to the discouraged grantees from acquiring,

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converting, or demolishing disaster- and one that aggregates payments made waiver. To determine if the State is in damaged housing because of excessive under the urgent need national compliance with the overall benefit costs that would have resulted from objective. requirement, HUD calculates the overall replacing all such units within the The regular CDBG program also benefit test as usual by excluding all specified time frame. subtotals the funds used for each planning and general administration HUD also waived the relocation national objective and compares the activities, and then removing the funds benefits requirements contained in subtotals to the overall grant amount applied to waivered slum/blight or Section 104(d) of the 1974 Act to the (minus general administration and urgent need activities one at a time until extent they differ from those of the planning costs) in a test called overall the State passes the test. To facilitate Uniform Relocation Assistance and Real benefit. To meet the overall benefit test, this process, HUD required the State to Properties Acquisition Act of 1970 (42 the percentage of funds a grantee has keep beneficiary data for each activity U.S.C. 4601 et seq.). This change expended for the subtotal of individual despite the waivers. (Note that, although simplifies implementation while activities that meet the national the Disaster Recovery Grant Reporting preserving statutory protections for objective of benefit to low- and (DRGR) system is used to collect the persons displaced by projects assisted moderate-income persons must be at benefit information, it only calculates with CDBG disaster recovery grant least 70 percent of the total funds used the overall benefit test as usual, not as funds. for all activities (excluding general waived. The effects of the waiver on administration and planning costs). compliance must be manually Overall Benefit For the CDBG supplemental grants for determined. Therefore, the The waivers related to overall benefit recovery from the consequences of automatically calculated percentages in in Mississippi were published in several Hurricanes Katrina, Rita, and Wilma, the published reports are technically previous notices. Because the waivers HUD granted two kinds of overall inaccurate.) In the notices, HUD linked are inextricably interrelated and have benefit waivers. The first kind is all of the Mississippi-only overall common alternative requirements, HUD common to all five state grantees. benefit waivers to specific, named and is reconsidering all of them at this point, Published February 13, 2006, this as the reconsideration of the first of waiver lowered the overall benefit dated action plans. This means that them is now required. The State threshold from 70 percent to 50 percent when the State substantially amends an complied fully with the alternative data for each of the recovery grants under activity under the waiver, that waiver collection requirements included with Public Law 109–148. The same waiver no longer applies to the funds removed the original waivers and collected was made October 30, 2006, for the from the original activity. This occurred income information for all of its direct recovery grants under Public Law 109– frequently as the budget for Phase I of benefit activities, regardless of overall 234. These waivers were reconsidered the homeowner compensation program benefit waivers. This data, and the and republished August 8, 2008. decreased in size from over $3 billion to State’s completion of the initial Therefore, absent an additional waiver, about $1.5 billion and as the State budgeting of all of its disaster recovery 50 percent of each Gulf Coast recovery completed other reprogramming from grant funds, provided HUD with enough grant governed by those notices must undersubscribed activities. information to determine whether the support activities that meet the low- and At this time, using budgets and data State still has the statutorily mandated moderate-income national objective. provided by the State, HUD has ‘‘compelling need’’ for each of those The second kind of waiver granted for calculated that the State is likely to previously granted waivers. Gulf Coast recovery grants was only achieve approximately 40 percent A CDBG grantee uses its grant funds requested by the State of Mississippi overall benefit for the whole grant for eligible activities, such as and only then for the first recovery grant (before applying the waivers). Next, rehabilitation of a single house, made under Public Law 109–148, not based on the information available prior construction of a water and sewer line, for the second grant. Between October to publication of this notice, HUD has providing childcare through a particular 2006 and July 2008, Mississippi performed the overall benefit test by program, or making a loan to a small requested multiple additional waivers of removing an activity at a time, in the business. Each activity must the overall benefit requirement for its date order in which the waivers were demonstrate benefit by meeting one of first grant and HUD provided some granted. If, at any point in the the three national objectives of the limited approvals for specific activities. calculation the State would clearly be in CDBG program. These national The standard that Congress provided compliance with the overall benefit objectives are: for granting an overall benefit waiver for requirement without further waivers, (1) Provide benefit to low- and a disaster recovery grant is ‘‘compelling then there can be no compelling need need’’ for the waiver. HUD denied moderate-income persons (low/mod for subsequent waivers. activities); several blanket waiver requests for the (2) prevent or eliminate slums or overall benefit test primarily because HUD calculates that, if the original blight (slum/blight activities); or the State had not yet budgeted enough waivers for three activities launched (3) address urgent community needs of its grant to allow HUD to weigh the early in the recovery that now have been for which no other funding exists necessity for a blanket waiver. completed or nearly completed in (urgent need activities). The additional waivers HUD granted reliance on those waivers (homeowner For purposes of reporting to HUD, the provided that specified activities compensation Phase 1, assistance to funds and performance of some types of undertaken by Mississippi would not be private utilities, and windpool activities, such as single family housing, considered in calculating the overall payments) remain without change, then may be aggregated. For example, benefit test if such consideration would the State will pass the overall benefit Mississippi has been reporting quarterly cause the State to fail to meet the test with the remaining grant funds as on its single-family homeowner requirement. Each of these waivers is they are currently budgeted. This compensation program under two only needed if the State needs the conclusion removes the compelling categories, one that aggregates activity activity to continue its recovery and the need for the waivers granted for other performance and costs for payments to State would be in noncompliance with activities and they are hereby rescinded, low- and moderate-income households the overall benefit provision without the as shown in the table below.

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Activity or program Original waiver date Reconsideration status

Regional Infrastructure Program ...... August 24, 2007 (72 FR 48808) ...... Waiver rescinded. Economic Development and Community Revitaliza- March 6, 2007 (72 FR 10020) ...... Waiver rescinded. tion. Regional Infrastructure Program—Master Plan and October 24, 2006 (71 FR 62372) ...... Waiver rescinded. Emergency Infrastructure. Ratepayer and Windpool Mitigation ...... October 24, 2006 (71 FR 62372) ...... Waiver retained as originally granted. Compensation for housing loss ...... June 14, 2006 (71 FR 34457) ...... Waiver retained for Phase 1 Ur- gent Need activities.

HUD notes that the change in the received by a state, a unit of general all or part of the CDBG portion of a status of these waivers will require no local government, a tribe, or a public improvement; and changes in the State’s currently subrecipient of a unit of general local (x) Gross income paid to a state, tribe, budgeted and operating programs government or a tribe that was generated or a unit of general local government or beyond the stipulated attention on the from the use of CDBG funds, except as subrecipient from the ownership part of the State to addressing the provided in paragraph (a)(2) of this interest in a for-profit entity acquired in recovery needs of low- and moderate- section. When income is generated by return for the provision of CDBG income persons in the required an activity that is only partially assisted assistance. proportions for the remainder of its with CDBG funds, the income shall be (2) ‘‘Program income’’ does not activities. prorated to reflect the percentage of include the following: The original waiver notices include CDBG funds used (e.g., a single loan (i) The total amount of funds which greater detail about the State’s requests supported by CDBG funds and other is less than $25,000 received in a single and the waivers and alternative funds; a single parcel of land purchased year that is retained by a unit of general requirements. The specific notices to with CDBG funds and other funds). local government, tribe, or subrecipient; reference are: Program income includes, but is not (ii) Amounts generated by activities • 71 FR 34457, published June 14, limited to, the following: eligible under section 105(a)(15) of the 2006; (i) Proceeds from the disposition by 1974 Act and carried out by an entity • 71 FR 62372, published October 24, sale or long-term lease of real property under the authority of section 105(a)(15) 2006; purchased or improved with CDBG of the Act. • 72 FR 10020, published March 6, funds; (3) The state may permit the unit of 2007; and (ii) Proceeds from the disposition of general local government or tribe that • 72 FR 48808, published August 24, equipment purchased with CDBG funds; receives or will receive program income 2007. (iii) Gross income from the use or to retain the program income, subject to rental of real or personal property the requirements of paragraph (a)(3)(ii) Timely Distribution of Funds acquired by the unit of general local of this section, or the state may require The state CDBG program regulation government or tribe or subrecipient of a the unit of general local government or regarding timely distribution of funds is state, a tribe, or a unit of general local tribe to pay the program income to the at 24 CFR 570.494. This provision is government with CDBG funds, less the state. designed to work in the context of an costs incidental to the generation of the (i) Program income paid to the state. annual program in which almost all income; Program income that is paid to the state grant funds are distributed to units of (iv) Gross income from the use or or received by the state is treated as general local government. Because the rental of real property owned by a state, additional disaster recovery CDBG State may have used its disaster tribe, or the unit of general local funds subject to the requirements of this recovery grant funds to carry out government or a subrecipient of a state, notice and must be used by the state or activities directly, and because Congress tribe, or unit of general local distributed to units of general local expressly allowed this grant to be government, that was constructed or government in accordance with the available until expended, HUD waived improved with CDBG funds, less the state’s Action Plan for Disaster this requirement. However, HUD still costs incidental to the generation of the Recovery. To the maximum extent expects the State of Mississippi to income; feasible, program income shall be used expeditiously obligate and expend all (v) Payments of principal and interest or distributed before the state makes funds, including any recaptured funds on loans made using CDBG funds; additional withdrawals from the United or program income, in carrying out (vi) Proceeds from the sale of loans States Treasury, except as provided in activities in a timely manner. made with CDBG funds; paragraph (b) of this section. (vii) Proceeds from the sale of (ii) Program income retained by a unit Waivers and Alternative Requirements obligations secured by loans made with of general local government or tribe. 1. Program income waivers and CDBG funds; (A) Program income that is received alternative requirement. 42 U.S.C. (viii) Interest earned on program and retained by the unit of general local 5304(j) and 24 CFR 570.489(e) are income pending disposition of the government or tribe before closeout of waived to the extent that they conflict income, but excluding interest earned the grant that generated the program with the rules stated in the program on funds held in a revolving fund income is treated as additional disaster income alternative requirement below. account; recovery CDBG funds and is subject to The following alternative requirement (ix) Funds collected through special the requirements of this notice. applies instead. assessments made against properties (B) Program income that is received (a) Program income. (1) For the owned and occupied by households not and retained by the unit of general local purposes of this subpart, ‘‘program of low and moderate income, where the government or tribe after closeout of the income’’ is defined as gross income special assessments are used to recover grant that generated the program

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income, but that is used to continue the government or Indian tribe within the provided the grantee assures HUD it disaster recovery activity that generated state. will use all resources at its disposal to the program income, is subject to the (d) Program income on hand at the ensure no displaced homeowner will be waivers and alternative requirements of state or its subrecipients at the time of denied access to decent, safe, and this notice. grant closeout by HUD and program sanitary suitable replacement housing (C) All other program income is income received by the state after such because he or she has not received subject to the requirements of 42 U.S.C. grant closeout shall be program income sufficient financial assistance. 5304(j) and subpart I of 24 CFR part 570. to the most recent annual CDBG 7. Overall benefit. 42 U.S.C. 5301(c) (D) The state shall require units of program grant of the state. and 5304(b)(3), and 24 CFR 570.484 and general local government or tribes, to 2. Housing-related eligibility waivers. 24 CFR 91.325(b)(4)(ii), with respect to the maximum extent feasible, to 42 U.S.C. 5305(a) is waived to the extent the overall benefit requirement, were disburse program income that is subject necessary to allow homeownership waived June 14 and October 24, 2006; to the requirements of this notice before assistance for households with up to and March 6 and August 24, 2007, for requesting additional funds from the 120 percent of area median income and the CDBG disaster recovery grant state for activities, except as provided in downpayment assistance for up to 100 covered by this notice, to the extent paragraph (b) of this section. percent of the downpayment (42 U.S.C. necessary to permit Mississippi to carry (b) Revolving funds. 5305(a)(24)(D)) and to allow new out activities specified in each notice (1) The state may establish or permit housing construction. provided that the state must give 3. Compensation for loss of housing. units of general local government or reasonable priority for the balance of its 42 U.S.C. 5305(a) is waived to the extent tribes to establish revolving funds to funds to activities that will primarily necessary to allow compensation for carry out specific, identified activities. benefit persons of low and moderate unreimbursed loss of housing caused by A revolving fund, for this purpose, is a income. the disaster. The grantee must undertake a. After the required reconsideration, separate fund (with a set of accounts any compensation activity in HUD is retaining waivers granted under that are independent of other program accordance with the state’s approved 71 FR 34460 paragraph 7, and 71 FR accounts) established to carry out action plan and published program 62374 paragraph 4, to the extent specific activities that, in turn, generate design. necessary to allow the retention of the payments to the fund for use in carrying 4. Planning requirements. For CDBG overall benefit waiver for the ratepayer out such activities. These payments to disaster-recovery-assisted general mitigation and windpool activities. the revolving fund are program income planning activities that will guide b. After the required reconsideration, and must be substantially disbursed recovery in accordance with the 2006 the Department no longer finds from the revolving fund before Act, the state CDBG program rules at 24 compelling need for, and is therefore additional grant funds are drawn from CFR 570.483(b)(5) and (c)(3) are waived rescinding, the waivers granted under the United States Treasury for revolving and the presumption at 24 CFR 71 FR 62374 paragraph 4, to the extent fund activities. Such program income is 570.208(d)(4) applies. that the waiver originally was granted not required to be disbursed for 5. Waiver and modification of the for the Regional Infrastructure nonrevolving fund activities. anti-pirating clause to permit assistance Program—Master Plan and Emergency (2) The state may also establish a to help a business return. 42 U.S.C. Infrastructure; 72 FR 10021 paragraph 5, revolving fund to distribute funds to 5305(h) and 24 CFR 570.482(h) are to the extent that it covers the Economic units of general local government or hereby waived only to allow the grantee Development and Community tribes to carry out specific, identified to provide assistance under this grant to Revitalization program; and 72 FR activities. A revolving fund, for this any business that was operating in the 48811 paragraph 2, to the extent that it purpose, is a separate fund (with a set covered disaster area before the incident covers the Regional Infrastructure of accounts that are independent of date of Hurricane Katrina and has since Program. HUD continues to expect the other program accounts) established to moved, in whole or in part, from the grantee to maintain low- and moderate- fund grants to units of general local affected area to another state or to a income benefit documentation for each government to carry out specific labor market area within the same state activity providing such benefit. activities which, in turn, generate to continue business. 8. Waiver of requirement for timely payments to the fund for additional 6. Waiver of one-for-one replacement distribution of funds. 24 CFR 570.494 grants to units of general local of units damaged by disaster. 42 U.S.C. regarding timely distribution of funds is government to carry out such activities. 5304(d)(2)(A)(i)–(ii) and 42 U.S.C. waived. Program income in the revolving fund 5304(d)(2)(A)(iii)–(iv) are waived to 9. Note on the eligibility of providing must be disbursed from the fund before remove the one-for-one replacement funds to Enterprise and Local Initiatives additional grant funds are drawn from requirements for occupied and vacant, Support Corporation (LISC) for certain the Treasury for payments to units of occupiable lower-income dwelling units purposes. The appropriations statute general local government that could be that may be demolished or converted to provides that the states of Louisiana and funded from the revolving fund. a use other than for housing; and to Mississippi may each use up to (3) A revolving fund established by remove the relocation benefits $20,000,000 (with up to $400,000 each either the state or unit of general local requirements contained at 42 U.S.C. for technical assistance) from funds government shall not be directly funded 5304(d) to the extent they differ from made available under this heading for or capitalized with grant funds. those of the Uniform Relocation Act. LISC and the Enterprise Foundation for (c) Transfer of program income. Also, 24 CFR 42.375 is waived to activities authorized by section 4 of the Notwithstanding other provisions of this remove the requirements implementing HUD Demonstration Act of 1993 (Pub. notice, the state may transfer program the above-mentioned statutory L. 103–120, 42 U.S.C. 9816 note), as in income before closeout of the grant that requirements regarding replacement of effect immediately before June 12, 1997, generated the program income to its housing and 24 CFR 42.350, to the and for activities authorized under own annual CDBG program or to any extent that these regulations differ from section 11 of the Housing Opportunity annual CDBG-funded activities the regulations contained in 49 CFR part Program Extension Act of 1996 (Pub. L. administered by a unit of general local 24. These requirements are waived 104–120, 42 U.S.C. 12805 note),

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including demolition, site clearance and requirements of section 106 of the HUD that are not relevant to the purpose of remediation, and program Reform Act. This notice contains a list this notice. administration. of regulatory waivers granted by HUD This notice follows procedures 10. Non-Federal Cost Sharing of Army during the period beginning on July 1, provided in HUD’s Statement of Policy Corps of Engineers Projects. Public Law 2008, and ending on September 30, on Waiver of Regulations and Directives 105–276, Title II, Oct. 21, 1998, 112 2008. issued on April 22, 1991 (56 FR 16337). Stat. 2478, provided in part that: ‘‘For FOR FURTHER INFORMATION CONTACT: For In accordance with those procedures any fiscal year, of the amounts made general information about this notice, and with the requirements of section available as emergency funds under the contact Aaron Santa Anna, Assistant heading ‘Community Development 106 of the HUD Reform Act, waivers of General Counsel for Regulations, Office regulations are granted by the Assistant Block Grants Fund’ and of General Counsel, Department of notwithstanding any other provision of Secretary with jurisdiction over the Housing and Urban Development, 451 regulations for which a waiver was law, not more than $250,000 may be 7th Street, SW., Room 10276, used for the non-Federal cost-share of requested. In those cases in which a Washington, DC 20410–0500, telephone General Deputy Assistant Secretary any project funded by the Secretary of number 202–708–3055 (this is not a toll- granted the waiver, the General Deputy the Army through the Corps of free number). Persons with hearing- or Assistant Secretary was serving in the Engineers.’’ speech-impairments may access this absence of the Assistant Secretary in Finding of No Significant Impact number through TTY by calling the toll- free Federal Information Relay Service accordance with the office’s Order of A Finding of No Significant Impact at 800–877–8339. Succession. with respect to the environment has For information concerning a This notice covers waivers of been made in accordance with HUD particular waiver that was granted and regulations granted by HUD from July 1, regulations at 24 CFR part 50, which for which public notice is provided in 2008, through September 30, 2008. For implement section 102(2)(C) of the this document, contact the person ease of reference, the waivers granted by National Environmental Policy Act of whose name and address follow the 1969 (42 U.S.C. 4332(2)(C)). The HUD are listed by HUD program office description of the waiver granted in the (for example, the Office of Community Finding of No Significant Impact is accompanying list of waivers that have available for public inspection between Planning and Development, the Office been granted in the third quarter of of Fair Housing and Equal Opportunity, 8 a.m. and 5 p.m. weekdays in the calendar year 2008. Regulations Division, Office of General the Office of Housing, and the Office of SUPPLEMENTARY INFORMATION: Counsel, Department of Housing and Section Public and Indian Housing, etc.). Within Urban Development, 451 Seventh Street, 106 of the HUD Reform Act added a each program office grouping, the SW., Room 10276, Washington, DC new section 7(q) to the Department of waivers are listed sequentially by the 20410–0500. Due to security measures Housing and Urban Development Act regulatory section of title 24 of the Code at the HUD Headquarters building, (42 U.S.C. 3535(q)), which provides of Federal Regulations (CFR) that is please schedule an appointment to that: being waived. For example, a waiver of 1. Any waiver of a regulation must be review the finding by calling the a provision in 24 CFR part 58 would be in writing and must specify the grounds Regulations Division at (202) 708–3055 listed before a waiver of a provision in for approving the waiver; (this is not a toll-free number). 2. Authority to approve a waiver of a 24 CFR part 570. Dated: November 24, 2008. regulation may be delegated by the Where more than one regulatory Roy A. Bernardi, Secretary only to an individual of provision is involved in the grant of a Deputy Secretary. Assistant Secretary or equivalent rank, particular waiver request, the action is [FR Doc. E8–29426 Filed 12–11–08; 8:45 am] and the person to whom authority to listed under the section number of the BILLING CODE 4210–67–P waive is delegated must also have first regulatory requirement that appears authority to issue the particular in 24 CFR and that is being waived. For regulation to be waived; example, a waiver of both § 58.73 and DEPARTMENT OF HOUSING AND 3. Not less than quarterly, the § 58.74 would appear sequentially in the URBAN DEVELOPMENT Secretary must notify the public of all listing under § 58.73. waivers of regulations that HUD has [Docket No. FR–5217–N–03] approved, by publishing a notice in the Waiver of regulations that involve the Federal Register. These notices (each same initial regulatory citation are in Notice of Regulatory Waiver Requests time sequence beginning with the Granted for the Third Quarter of covering the period since the most earliest-dated regulatory waiver. Calendar Year 2008 recent previous notification) shall: a. Identify the project, activity, or Should HUD receive additional AGENCY: Office of the General Counsel, undertaking involved; information about waivers granted HUD. b. Describe the nature of the provision during the period covered by this report ACTION: Notice. waived and the designation of the (the third quarter of calendar year 2008) provision; before the next report is published (the SUMMARY: Section 106 of the Department c. Indicate the name and title of the fourth quarter of calendar year 2008), of Housing and Urban Development person who granted the waiver request; HUD will include any additional Reform Act of 1989 (the HUD Reform d. Describe briefly the grounds for waivers granted for the third quarter in Act) requires HUD to publish quarterly approval of the request; and the next report. Federal Register notices of all e. State how additional information regulatory waivers that HUD has about a particular waiver may be Accordingly, information about approved. Each notice covers the obtained. approved waiver requests pertaining to quarterly period since the previous Section 106 of the HUD Reform Act HUD regulations is provided in the Federal Register notice. The purpose of also contains requirements applicable to Appendix that follows this notice. this notice is to comply with the waivers of HUD handbook provisions

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Dated: December 3, 2008. Date Granted: August 27, 2008. the container’s owner to follow NFPA Michael C. Flynn, Reason Waived: Mississippi Code 58 to see that proper maintenance Acting General Counsel. Development Authority advised HUD and re-qualification is accomplished on that of the 1,200 applicants for the liquid petroleum gas containers, in Appendix Small Rental Property Assistance order to minimize the probability of Listing of Waivers of Regulatory Program (SRAP), about 750 applications accidents and risks to human Requirements Granted by Offices of the would require mitigation of one or more populations and structures. Department of Housing and Urban adjacent residential propane tanks It is also the responsibility of the Development July 1, 2008 Through because the HUD assisted project is propane marketer to follow NFPA Code September 30, 2008 located at less than the acceptable 58 and verify that a container is fit for separation distance pursuant to HUD’s service before filling it. NFPA Code 58 Note to Reader: More information about regulations at 24 CFR part 51, subpart C. requires that containers be designed, the granting of these waivers, including a MDA estimated that there are fabricated, tested and marked (or copy of the waiver request and approval, may approximately 10,357 above-ground stamped) in accordance with the be obtained by contacting the person whose name is listed as the contact person directly storage tanks along the Gulf Coast. The Regulations of the U.S. Department of after each set of regulatory waivers granted. majority of residential propane tanks Transportation (DOT), the American were 250 gallons; however, there were Society of Mechanical Engineers The regulatory waivers granted appear instances where the residential propane (ASME) Boiler and Pressure Vessel in the following order: tank was greater than 250 gallons. The Code, ‘‘Rules for the Construction of I. Regulatory waivers granted by the acceptable separation distance (for blast Unfired Pressure Vessels’’, Section VIII, Office of Community Planning and overpressure) for a 250 gallon tank of or the American Petroleum Institute Development. propane is 135 feet. (API)–ASME Code for Unfired Vessels II. Regulatory waivers granted by the Mitigation measures included for Petroleum Liquids and Gases Office of Housing. constructing a barrier to surround the III. Regulatory waivers granted by the applicable at the date of manufacture of tank or building a structure on the HUD Office of Public and Indian Housing. the container. property site to shield the proposed The waiver was granted based on the I. Regulatory Waivers Granted by the project from the hazard. The residential following findings: the Small Rental Office of Community Planning and propane tanks that impact the HUD Property Assistance Program and Long Development assisted project are located off-site on Term Workforce Housing Program will For further information about the adjacent properties. In the Mississippi further the objective of providing much following regulatory waivers, please see Gulf Coast, generally the residential needed housing units in established the name of the contact person that propane tanks are leased from the residential communities affected by immediately follows the description of propane distributor and the tanks are hurricane Katrina; there are significant the waiver granted. aboveground (not buried). The average economic and practical difficulties in • Regulation: 24 CFR 51.202(a). SRAP grant is $30,000. For these mitigating the off-site residential Project/Activity: Mississippi reasons, mitigating residential propane propane tanks located on adjacent Development Authority requested a tanks on adjacent properties is not properties; the particular facts in wavier of the regulation 24 CFR part 51, practical or economically feasible. Mississippi as described above suggest subpart C, for the Small Rental Property The National Fire Protection that any danger to HUD sites is minimal; Assistance Program and the Long Term Association (NFPA), through its and a site visit conducted by HUD staff Workforce Housing Program. These development of codes and standards, is verified the facts and examined a programs provide Community an authoritative source on public safety sample of the proposed sites also Development Block Grant disaster regarding fire and other hazards. Its suggested any danger to HUD sites is assistance for projects located in mission is to reduce the burdens of fire minimal. Hancock, Harrison, Jackson, and Pearl and hazards by providing consensus This waiver does not apply to River counties in the Gulf Coast region codes and standards, research, training proposed HUD-assisted propane in Mississippi. and education. As an authoritative containers of volume capacities higher Nature of Requirement: HUD’s source on public safety, NFPA than 250 gallons and applicants for regulations in 24 CFR part 51, subpart developed NFPA Code 58 that HUD funding assistance for such C, specifically at § 51.202(a) do not established codes and standards used by projects are required to be in allow approval of an application for the propane industry and operators compliance with the requirements of 24 assistance for a proposed project located regarding storage and handling of CFR part 51, subpart C. The waiver was at less than the acceptable separation liquefied petroleum gases (LPG). NFPA granted for residential propane tanks of distance from a hazard, as defined in Code 58 is intended to provide the 250 gallons or less located off-site on § 51.201, unless appropriate mitigating industry with a framework of adjacent properties, provided that these measures, as defined in § 51.205 are operational information and standards residential propane tanks are designed, implemented, or unless mitigating that, if followed, will minimize the fabricated, tested and marked (or measures are already in place. The probability of risk and accidents. Most stamped) in accordance with the purpose of this regulation is to establish states, including Mississippi, have regulations of the U.S. Department of safety standards which can be used as adopted and integrated the NFPA Code Transportation (DOT), the American a basis for calculating acceptable 58 into their state and local codes for Society of Mechanical Engineers separation distance for HUD-assisted LPG operations. A recent study by (ASME) Boiler and Pressure Vessel projects from specific, stationary, NFPA on natural gas and LP-gas home Code, ‘‘Rules for the Construction of hazardous operations which store, structure fires confirms that one of the Unfired Pressure Vessels,’’ Section VIII, handle, or process hazardous reasons why LP-gas home structure fires or the American Petroleum Institute substances. have fallen 83% nationally is due to (API)–ASME Code for Unfired Vessels Granted By: Susan D. Peppler, increased awareness from following for Petroleum Liquids and Gases Assistant Secretary for Community NFPA Code 58 Section 2–2.1.4 applicable at the date of manufacture of Planning and Development specifically. It is the responsibility of the container. This waiver does not

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apply to containers that are required to Granted By: Susan D. Peppler, State, consisting of one, two, or three be removed from service because they Assistant Secretary for Community specific consecutive program years, have passed their useful life due to Planning and Development. shall principally benefit low and corrosion, mechanical damage, or lack Date Granted: August 22, 2008. moderate income families in a manner of a nameplate. Reason Waived: A reduced public that ensures that at least 70 percent of Contact: Danielle Schopp, Office of comment period allowed the State to the amount is expended for activities Environment and Energy, Office of implement the amendment to the 2008 that benefit such persons during the Community Planning and Development, Method of Distribution (MOD) and designated period. Department of Housing and Urban annual action plan expeditiously and Granted By: Susan D. Peppler, Development, 451 7th Street, SW., enabled the State to provide assistance Assistant Secretary for Community Room 7250, Washington, DC 20410– to affected units of general local Planning and Development. 7000, telephone number 202–402–4442. governments for disaster recovery in a Date Granted: August 28, 2008. • Regulation: 24 CFR 58.22(a) timely manner. The State’s proposed Reason Waived: This waiver allowed Project/Activity: Catholic Community amendment to reallocate recaptured the State of Iowa to change its Services of Utah submitted an funds or uncommitted funds for their certification of compliance with this application for building rehabilitation, current program year will provide the requirement retroactively, if the State so operating costs and supportive services State with additional flexibility to chooses, to a three-year period. This for St. Mary’s/Marillac House in Salt address urgent needs in the transition waiver also allowed the state to Lake City, Utah. The project provides 70 period until supplemental funding effectively ‘‘front-load’’ the overall 70% treatment beds, office and treatment becomes available. calculation which, in turn, allowed the spaces to accommodate clients and 47 Contact: Diane Lobasso, Director, state to use a higher percentage of funds staff members and site improvements, State and Small Cities Division, Office for activities that meet the urgent need including outdoor playground areas. of Block Grant Assistance, Office of or slum/blight national objectives in Catholic Community Services Community Planning and Development, year one. Nonetheless, HUD encouraged committed nonfederal funds by Department of Housing and Urban the State to maximize the amount of executing a construction contract, an Development, Room 7184, 451 7th funding for activities that benefit low- action that limits the choice of Street, SW., Washington, DC 20410– and moderate-income persons. reasonable alternatives, before receiving 7000, telephone number 202–708–1322. Contact: Diane Lobasso, Director, • Regulation: 24 CFR 91.115(i). an approved Request for Release of State and Small Cities Division, Office Project/Activity: The State of Iowa Funds. of Block Grant Assistance, Office of Community Development Block Grant Nature of Requirement: HUD’s Community Planning and Development, Program. Department of Housing and Urban regulation at 24 CFR 58.22(a) requires Nature of Requirement: Section that an environmental review be Development, 451 7th Street, SW., 91.115(i) of HUD’s regulations in 24 Room 7184, Washington, DC 20410– performed and a request for release of CFR part 91 requires the State to follow funds be completed and certified prior 7000, telephone number 202–402–2191. its citizen participation plan. • to the commitment of non-HUD funds to Granted By: Susan D. Peppler, Regulations: 24 CFR 92.300(a)(1). a project using HUD funds. Assistant Secretary for Community Project/Activity: The State of Granted By: Susan D. Peppler, Planning and Development. Washington requested a waiver of the Assistant Secretary for Community Date Granted: August 28, 2008. HOME final rule to allow it to provide Planning and Development. Reason Waived: This waiver, in HOME CHDO (community housing Date Granted: August 1, 2008. conjunction with the waiver of 24 CFR development organization) set-aside Reason Waived: The waiver was 91.115(c)(2), allowed the State of Iowa funds to a limited liability company granted based on the following findings: to amend its action plan to reallocate (LLC) that has a qualified CHDO as its the project furthered the objective of recaptured funds or uncommitted funds sole managing partner in order to providing much needed housing for for the current program year and purchase and renovate affordable rental homeless individuals and families; no provided the State with additional housing in downtown Spokane. HUD funds were committed, and an flexibility to address urgent needs in the Nature of Requirement: The HOME environmental assessment and several transition period until supplemental regulations at 24 CFR 92.300(a)(1) site visits by HUD staff concluded that funding becomes available. permits a participating jurisdiction to the granting of the waiver would not Contact: Diane Lobasso, Director, award CHDO set-aside funds to limited result in any adverse environmental State and Small Cities Division, Office partnerships that include a qualified impact. of Block Grant Assistance, Office of CHDO as the managing partner. LLCs Contact: Danielle Schopp, Office of Community Planning and Development, are not an allowable form of CHDO Environment and Energy, Office of Department of Housing and Urban project ownership in the HOME Community Planning and Development, Development, 451 7th Street, SW., Regulation. Department of Housing and Urban Room 7184, Washington, DC 20410– Granted by: Nelson R. Bregon, General Development, 451 7th Street, SW., 7000, telephone number 202–402–2191. Deputy Assistant Secretary for Room 7250, Washington, DC 20410– • Regulation: 24 CFR 91.325(b)(4)(ii). Community Planning and Development. 7000, telephone number 202–402–4442. Project/Activity: The State of Iowa’s Date Granted: September 2, 2008. • Regulation: 24 CFR 91.115(c)(2). Community Development Block Grant Reasons Waived: Spokane Housing Project/Activity: The State of Iowa to Program. Ventures (SHV) is a local nonprofit waive 24 CFR 91.115(c)(2). Nature of Requirement: Section organization that is designated as a Nature of Requirement: The 91.325(b)(4)(ii) of HUD’s regulations in CHDO by the City. The waiver was provisions of 24 CFR 91.115(c)(2) 24 CFR part 91 requires a certification granted so that SHV could purchase and require that a minimum of 30 days be that the State has complied with the renovate the Bel Franklin Apartments in allowed for public comment following a criterion that the aggregate use of CDBG downtown Spokane; the financing is to substantial amendment to the funds, including Section 108 guaranteed include HOME CHDO set-aside funds Consolidated Plan. loans, during a period specified by the and Low-Income Housing Tax Credits

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(LIHTC). To facilitate the LIHTC and Urban Development, 451 7th Street, that for the purpose of determining financing, SHV formed the Bel Franklin SW., Room 7282, Washington, DC whether a job is held by or made Apartments LLC (LLC); SHV is the sole 20410–7000, telephone number 202– available to a low or moderate income member of the LLC with 100 percent 402–4548. person, the person may be presumed to ownership of the project. The City • Regulation: 24 CFR 570.308(a). be a low or moderate income person if wished to provide HOME CHDO set- Project/Activity: The city of he/she resides within a census tract (or aside funds to the LLC. LLCs are not an Hammonton, NJ, elected to accept its block numbering area) or meets other allowable form of CHDO project status as an entitlement community and criteria as mentioned in the regulation. ownership in the HOME regulation. The desired a joint agreement with Atlantic Granted By: Susan D. Peppler, PJ, the CHDO and the LLC agreed that County, NJ to plan and implement a Assistant Secretary for Community and SHV is to be the sole managing member joint housing and community Planning Development. of the Bel Franklin Apartments LLC development program. Date Granted: August 28, 2008. when the tax credit investors are Nature of Requirement: Communities Reason Waived: This waiver was brought into the transaction and will that have been designated as a granted and modified the criteria for have effective project control over its metropolitan city by OMB may accept or locations in which a person may be operation. Ownership is to revert to decline their status. A city or town such presumed to be low or moderate SHV at the end of the 15-year tax as Hammonton that accepts its status income. The impact of the disaster on compliance period. SHV also is to serve may enter into a joint agreement with an the State’s economy (and on individual as the project developer and property urban county, but it may only do so businesses) was so severe that, absent manager. Both SHV and the LLC are when the county is seeking a three-year substantial evidence to the contrary, the bound by the provisions of the HOME requalification as an urban county. State was reasonable in presuming that regulations and the partnership Atlantic County is currently entering jobs would actually be lost from operating agreement. into its third year of qualification for businesses that have been put out of Contact: Virginia Sardone, Deputy FYs 2007–2009 and will requalify as an operation or whose continued operation Director, Office of Affordable Housing urban county in 2009 for FYs 2010– is endangered. The Housing and Programs, Office of Community 2012. Community Development Act describes Planning and Development, Department Granted By: Susan D. Peppler, certain situations in which jobs may be of Housing and Urban Development, Assistant Secretary for Community presumed to principally benefit low- 451 7th Street SW., Room 7154, Planning and Development. and moderate-income persons. The Washington, DC 20410–7000, telephone Date Granted: September 25, 2008. degree of socioeconomic and physical number 202–708–2470. Reason Waived: Hammonton is only distress that exists in many Iowa • Regulation: 24 CFR 570.208(a)(3). allowed by regulation to spend $30,000 communities was functionally Project/Activity: Orange County, on administrative expenses, which is equivalent to the degree of distress California. insufficient to begin and administer a recognized by the statutory criteria Nature of Requirement: Section separate CDBG program. In addition, allowing such presumptions. 570.208(a)(3) of HUD’s regulations in 24 Hammonton does not have the available Contact: Diane Lobasso, Director, CFR part 570 provide that in order to resources to prepare the CDBG State and Small Cities Division, Office meet the criteria for the national application and reporting of Block Grant Assistance, Office of objective of low- and moderate-income documentation, such as the citizen Community Planning and Development, housing activities, two or more rental participation plan, Consolidated Plan/ Department of Housing and Urban buildings, under common ownership Action Plan, fair housing analysis, and Development, 451 7th Street, SW., and management and on the same or Consolidated Annual Performance and Room 7184, Washington, DC 20410– contiguous properties, may be treated as Evaluation Report. Finally, Hammonton 7000, telephone number 202–402–2191. a single structure. staff does not have the skills to conduct • Regulation: 24 CFR Granted By: Susan D. Peppler, transaction in HUD’s Integrated 570.483(b)(4)(v). Assistant Secretary for Community Disbursement and Information System, Project/Activity: The State of Iowa’s Planning and Development. which is necessary for successful CDBG Community Development Block Grant Date Granted: September 22, 2008. program administration. Atlantic Program. Reason Waived: The Aliso Meadows County is willing to provide Nature of Requirement: Section Condominium complex is comprised of Hammonton with administrative 570.483(b)(4)(v) of HUD’s regulations 248 units in 62 buildings. These units services and fully supports provides that a census tract (or block are occupied by a combination of Hammonton’s request for a waiver of 24 numbering area) qualifies for certain owners and renters. The regulation only CFR 570.308(a). presumptions under paragraphs addresses rental buildings. The waiver Contact: Gloria Coates, Entitlement (b)(4)(iv)(A)(1) and (B) of the regulations was granted because this complex is Communities Division, Office of Block if it is either part of a Federally- primarily occupied by low- and Grant Assistance, Office of Community designated Empowerment Zone or moderate-income households and the and Planning Development, 451 7th Enterprise Community or meets other complex is one of the few affordable Street, SW., Room 7282, Washington, criteria. housing developments in the city of DC 20410–7000, telephone number 202– Granted By: Susan D. Peppler, Laguna Hills, a participant in the 708–1577. Assistant Secretary for Community Orange County CDBG program. Also, • Regulation: 24 CFR Planning and Development. without CDBG assistance this complex 570.483(b)(4)(iv)(A)(1). Date Granted: August 28, 2008. would become a blighting influence in Project/Activity: The State of Iowa’s Reason Waived: This waiver was the community. Community Development Block Grant granted and modified the criteria for Contact: Mr. Steve Johnson, Director, Program. locations in which a person may be Entitlement Communities Division, Nature of Requirement: Section presumed to be low or moderate Office of Community Planning and 570.483(b)(4)(iv)(A)(1) of HUD’s income. The impact of the disaster on Development, Department of Housing regulations in 24 CFR part 570 requires the State’s economy (and on individual

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businesses) was so severe that, absent II. Regulatory Waivers Granted by the DC 20410–8000, telephone number 202– substantial evidence to the contrary, the Office of Housing-Federal Housing 708–2121. State was reasonable in presuming that Administration (FHA) • Regulation: 24 CFR 219.220(b). jobs would actually be lost from For further information about the Project/Activity: Pinelake Village businesses that have been put out of following regulatory waivers, please see Cooperative, Ann Arbor, Michigan— operation or whose continued operation the name of the contact person that FHA Project Number 044–44290. The is endangered. The Housing and immediately follows the description of property is a 129-unit cooperative Community Development Act describes the waiver granted. which requires renovations to continue certain situations in which jobs may be • Regulation: 24 CFR 203.43f. as a well-maintained source of presumed to principally benefit low- Project/Activity: State of Louisiana. affordable housing. Refinancing will and moderate-income persons. The Nature of Requirement: Section provide sufficient funds for needed degree of socioeconomic and physical 203.43f of HUD’s regulations in 24 CFR capital improvements at the property. distress that exists in many Iowa part 203 authorizes the insuring of Nature of Requirement: Section communities was functionally manufactured homes built pursuant to 219.220(b) of HUD’s regulations in 24 equivalent to the degree of distress the National Manufactured Home CFR part 219 governs the repayment of recognized by the statutory criteria Construction and Safety Standards and operating assistance provided under the allowing such presumptions. meeting certain other requirements set Flexible Subsidy Program for Troubled Contact: Diane Lobasso, Director, forth therein. Among the requirements Projects prior to May 1, 1996 states: State and Small Cities Division, Office in Section 203.43f(c)(i) manufactured ‘‘Assistance that has been paid to a of Block Grant Assistance, Office of homes which have not been project owner under this subpart must Community Planning and Development, permanently sited for more than one be repaid at the earlier of the expiration Department of Housing and Urban year prior to the date of application for of the term of the mortgage, termination Development, 451 7th Street, SW., mortgage insurance must have the of these actions would typically Room 7184, Washington, DC 20410– finished grade beneath the terminate FHA involvement with the 7000, telephone number 202–402–2191. manufactured home at or above the 100 property, and the Flexible Subsidy loan would be repaid, in whole, at that time. • year return frequency flood elevation. Regulation: 24 CFR 570.484. Section 203.43f(d)(ii) provides that Granted by: Brian D. Montgomery, Project/Activity: The State of Iowa’s manufactured homes which have been Assistant Secretary for Housing-Federal Community Development Block Grant permanently erected on a site for more Housing Commissioner. Program. than one year prior to the date of Date Granted: July 21, 2008. Reason Waived: This waiver was Nature of Requirement: Section application for mortgage insurance must have the finished grade level beneath granted to preserve this much needed 570.484 of HUD’s regulations requires affordable housing. Pinelake Village is a the State to certify that, in the aggregate, the manufactured home at or above the 100 year return frequency flood 129-unit Section 236 property with a not less than 70 percent of CDBG funds flexible subsidy loan. Eighty one units received by the State during a period elevation. Granted By: Brian D. Montgomery, receive Section 8 project based rental specified by the State, not to exceed assistance. Providing this waiver three years, will be used for activities Assistant Secretary for Housing-Federal Housing Commissioner. allowed the owner to prepay the that benefit persons of low and Date Granted: August 1, 2008. existing mortgage, obtain financing to moderate income. Reason Waived: The waiver was perform substantial rehabilitation of the Granted By: Susan D. Peppler, granted to permit the placement of FHA property and allow the amortization of Assistant Secretary for Community mortgage insurance on manufactured the flexible subsidy loan with the new Planning and Development. homes installed in the Federal mortgage. Date Granted: August 28, 2008. Emergency Management Agency- Contact: Beverly J. Miller, Director, designated flood plains in accordance Office of Asset Management, Office of Reason Waived: This waiver allowed with the National Flood Insurance Housing, Department of Housing and the State of Iowa to change its Program installation requirements for Urban Development, 451 7th Street, certification of compliance with this manufactured homes found at 44 CFR SW., Room 6160, Washington, DC requirement, retroactively if the State so 60.3(c)(6) or 44 CFR 60.3(c)(12). The 20410–8000, telephone number 202– chooses, to a three-year period. This waiver of the regulations required that 708–3730. waiver also allowed the State to the lowest floor of the manufactured • Regulation: 24 CFR 219.220(b). effectively ‘‘front-load’’ the overall 70% home to be at or above the 100 year Project/Activity: St. Patrick’s Terrace, calculation which allowed the state to return frequency flood elevation for the Oakland, California—FHA Project use a higher percentage of funds for purpose of not violating any statutory Number 121–44816. The owner/ activities that meet the urgent need for requirements. Accordingly, the waiver managing agent is requesting a deferral slum/blight national objectives in year permits the placement of FHA mortgage of the repayment of the Flexible Subsidy one. Nonetheless, HUD encouraged the insurance on manufactured homes sited loan. Major rehabilitation is needed at State to maximize the amount of in the State of Louisiana, in flood the project. funding for activities that benefit low- designated areas with the lowest floor at Nature of Requirement: Section and moderate-income persons. or above the 100 year return frequency, 219.220(b) of HUD’s regulations in 24 Contact: Diane Lobasso, Director, and otherwise conforming with HUD CFR part 219 governs the repayment of State and Small Cities Division, Office requirements for Title II, Section 203(b) operating assistance provided under the of Block Grant Assistance, Office of financing of manufactured homes. Flexible Subsidy Program for Troubled Community Planning and Development, Contact: Joanne B. Kuczma, Director, Projects prior to May 1, 1996 states: Department of Housing and Urban Home Mortgage Insurance Division, ‘‘Assistance that has been paid to a Development, 451 7th Street, SW., Office of Housing, Department of project owner under this subpart must Room 7184, Washington, DC 20410– Housing and Urban Development, 451 be repaid at the earlier of the expiration 7000, telephone number 202–402–2191. 7th Street SW., Room 9266, Washington, of the term of the mortgage, termination

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of these actions would typically flexible subsidy debt over the new default and was assigned to HUD in terminate FHA involvement with the mortgage term. A new Use Agreement is August 2007. Waiver of this regulation property, and the Flexible Subsidy loan to be recorded in first position ahead of would allow the Columbus would be repaid, in whole, at that time. any new financing and rents will be Metropolitan Housing Authority to Granted by: Brian D. Montgomery, affordable for 55 years. purchase this defaulted unsubsidized Assistant Secretary for Housing-Federal Contact: Beverly J. Miller, Director, mortgage loan on a noncompetitive Housing Commissioner. Office of Asset Management, Office of basis. Date Granted: August 27, 2008. Housing, Department of Housing and Nature of Requirement: HUD’s Reason Waived: The property owner Urban Development, 451 7th Street, regulations governing the sale of HUD- was granted the waiver of the SW., Room 6160, Washington, DC held mortgages are set forth in 24 CFR regulations which required repayment 20410–8000, telephone number 202– part 290, subpart B. Section 290.30(a) of of the operating assistance loans in 708–3730. those regulations state that ‘‘[e]xcept as order to defer repayment of the Flexible • Regulation: 24 CFR 266.638(d). otherwise provided in section Subsidy loan and preserve the long-term Project/Activity: Villa St. Maurice, 290.31(a)(2), HUD will sell HUD-held affordability of the project. This waiver New Orleans, LA—FHA Project Number multifamily mortgages on a competitive allowed the property to undergo major 064–98016, Villa Additions, New basis.’’ Section 290.31(a)(2) permits rehabilitation. The owner is to refinance Orleans, LA—FHA Project Number 064– ‘‘negotiated’’ sales to state or local the insured mortgage with a non- 98017, St. Bernard I—Meraux, LA— governments for mortgage loans that are insured lender, and amortize the FHA Project Number 064–98012, St. current and secured by subsidized flexible subsidy debt over the new Bernard II—Meraux, LA—FHA Project projects, provided such loans are sold mortgage term. A new Use Agreement is Number 064–98013, St. Martin Manor— with FHA insurance. to be recorded in first position ahead of FHA Project Number 064–98014, and St. Granted by: Brian D. Montgomery, any new financing and rents will be Martin House—FHA Project Number Assistant Secretary for Housing-Federal affordable for 55 years. 064–98015. The projects were destroyed Housing Commissioner. Contact: Beverly J. Miller, Director, by Hurricane Katrina in August 2005. Date Granted: August 18, 2008. Office of Asset Management, Office of HUD agreed to allow an 18-month Reason Waived: This regulation was Housing, Department of Housing and suspension of debenture interest waived in order to allow the sale of Urban Development, 451 7th Street, accrual. Kimberly Parkway and to prevent SW., Room 6160, Washington, DC Nature of Requirement: Under HUD’s foreclosure of the property. Foreclosure 20410–8000, telephone number 202– regulation at 24 CFR 266.638(d), the would have terminated the free lunch 708–3730. housing finance agency (HFA) program, child care for working parents, • Regulation: 24 CFR 219.220(b). debenture shall bear interest at HUD’s job training and search services and Project/Activity: St. Andrew’s Manor, published debenture at the earlier of other services at the project, causing a Oakland, California—FHA Project initial endorsement or final hardship for the tenants who live in this Number 121–44818. The owner/ endorsement. Interest shall be due and economically distressed area of managing agent is requesting a deferral payable annually on the anniversary Columbus. Seventy percent of residents of the repayment of the Flexible Subsidy date of the initial claim payment and on are very low-income. All residents loan. Major rehabilitation is needed at the date of redemption when redeemed receive rental assistance through the project. or canceled before an anniversary date. Section 8 housing vouchers. The Nature of Requirement: Section Interest shall be computed on the full assistance will continue after the 219.220(b) of HUD’s regulations in 24 face amount of the HFA debenture mortgage is sold to the Columbus CFR part 219 governs the repayment of through the term of the HFA debenture. Metropolitan Housing Authority. operating assistance provided under the Granted by: Brian D. Montgomery, Contact: Beverly J. Miller, Director, Flexible Subsidy Program for Troubled Assistant Secretary for Housing-Federal Office of Asset Management, Office of Projects prior to May 1, 1996 states: Housing Commissioner. Housing, Department of Housing and ‘‘Assistance that has been paid to a Date Granted: August 19, 2008. Urban Development, 451 7th Street, project owner under this subpart must Reason Waived: This waiver allowed SW., Room 6160, Washington, DC be repaid at the earlier of the expiration full refinancing for the reconstruction of 20410–7000, telephone number 202– of the term of the mortgage, termination the projects. The owner’s history of 708–3730. of these actions would typically successfully settling Risk Sharing claims • Regulation: 24 CFR 290.30(a). terminate FHA involvement with the on 5 properties resulted in the full Project/Activity: Bethany Homes, New property, and the Flexible Subsidy loan redemption of the Louisiana HFA Orleans, Louisiana—FHA Project would be repaid, in whole, at that time. debentures. This included currently Number 064–43051. The project is Granted by: Brian D. Montgomery, accrued interest and will assure unsubsidized and in default. Since the Assistant Secretary for Housing-Federal concrete plans are in place to refinance Department seeks to sell the note, a Housing Commissioner. the remaining 6 properties as well. waiver of this regulation was requested Date Granted: August 28, 2008. Contact: Beverly J. Miller, Director, by the Fort Worth Multifamily Hub. Reason Waived: The property owner Office of Asset Management, Office of Nature of Requirement: HUD’s was granted the waiver of the Housing, Department of Housing and regulations governing the sale of HUD- regulations which required repayment Urban Development, 451 7th Street, Held mortgages are set forth in 24 CFR of the operating assistance loans in SW., Room 6160, Washington, DC part 290, subpart B. Section 290.30(a) of order to defer repayment of the Flexible 20410–7000, telephone number 202– those regulations state that ‘‘[e]xcept as Subsidy loan and preserve the long-term 708–3730. otherwise provided in section affordability of the project. This waiver • Regulation: 24 CFR 290.30(a). 290.31(a)(2), HUD will sell HUD-Held allowed the property to undergo major Project/Activity: Kimberly Parkway multifamily mortgages on a competitive rehabilitation. The owner proposes to (a/k/a Marsh Run) Columbus, Ohio— basis.’’ Section 290.31(a)(2) permits refinance the insured mortgage with a FHA Project Number 043–35369. The ‘‘negotiated’’ sales to state or local non-insured lender, and amortize the insured loan on this property went into governments for mortgage loans that are

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current and secured by subsidized Project Number 102–35164V and W. Project/Activity: Carlsbad Senior projects, provided such loans are sold This 16-unit project is experiencing Community, Carlsbad, NM, Project with FHA insurance. difficulty in leasing units to qualified Number: 116–EE040/NM16–S061–003. Granted by: Brian D. Montgomery, families of two or more individuals. Nature of Requirement: Section Assistant Secretary for Housing-Federal Nature of Requirement: Section 891.100(d) prohibits amendment of the Housing Commissioner. 5.655(b)(5) of HUD’s regulations in 24 amount of the approved capital Date Granted: August 18, 2008. CFR part 5 applies to Section 8 project advcance funds prior to closing. Reason Waived: This regulation was based assistance program requirements Granted by: Brian D. Montgomery, waived in order to allow the for selection for occupancy of a project Assistant Secretary for Housing-Federal noncompetitive sale of Bethany Homes or unit. Housing assistance limitation Housing Commissioner. and to prevent foreclosure of the for single persons—a single person who Date Granted: July 10, 2008. property. Waiver of this requirement is not an elderly or displaced person, a Reason Waived: The project is would produce budget savings by person with disabilities, or the economically designed and comparable generating proceeds to the U.S. Treasury remaining member of a resident family in cost to similar projects in the area, and reduce the number of loans in the may not be provided a housing unit and the sponsor/owner exhausted all HUD-held mortgage inventory. with two or more bedrooms. efforts to obtain additional funding from Contact: Beverly J. Miller, Director, Granted by: Brian D. Montgomery, other sources. Contact: Willie Spearmon, Director, Office of Asset Management, Office of Assistant Secretary for Housing-Federal Office of Housing Assistance and Housing, Department of Housing and Housing Commissioner. GrantAdministration, Office of Housing, Urban Development, 451 7th Street, Date Granted: August 22, 2008. SW., Room 6160, Washington, DC Department of Housing and Urban Reason Waived: This waiver was Development, 451 7th Street, SW., 20410–8000, telephone number 202– granted because of the project’s 708–3730. Room 6130, Washington, DC 20410– difficulty in locating potential qualified 8000, telephone number 202–708–3000. • Regulation: 24 CFR 290.30(a). occupants. Management had exhausted • Regulation: 24 CFR 891.100(d). Project/Activity: Malta Square, New all reasonable marketing efforts, Project/Activity: Deneki House, Orleans, Louisiana—FHA Project including advertising locally Wasilla, AK, Project Number: 176– Number 064–43079. This property is an continually in the Lyons Daily News, as independent care and assisted living HD028/AK06–Q061–001. well as distributing flyers locally. This Nature of Requirement: Section facility which has been vacant since waiver allowed admission of single September 2005 when it was flooded 891.100(d) prohibits amendment of the adults who are otherwise eligible and amount of the approved capital during Hurricane Katrina. qualified for occupancy in these two- Nature of Requirement: HUD’s advcance funds prior to closing. bedroom units. The owner will be able Granted by: Brian D. Montgomery, regulations governing the sale of HUD- to maintain full occupancy and the Assistant Secretary for Housing-Federal Held mortgages are set forth in 24 CFR project will not fail. Housing Commissioner. part 290, subpart B. Section 290.30(a) of Contact: Beverly J. Miller, Director, Date Granted: July 10, 2008. those regulations state that ‘‘[e]xcept as Office of Asset Management, Office of Reason Waived: The project is otherwise provided in section Housing, Department of Housing and economically designed and comparable 290.31(a)(2), HUD will sell HUD-Held Urban Development, 451 7th Street, in cost to similar projects in the area, multifamily mortgages on a competitive SW., Room 6160, Washington, DC and the sponsor/owner exhausted all basis.’’ Section 290.31(a)(2) permits 20410–8000, telephone number 202– efforts to obtain additional funding from ‘‘negotiated’’ sales to state or local 708–3730. other sources. governments for mortgage loans that are • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, current and secured by subsidized Project/Activity: Lakeview Properties, Office of Housing Assistance and Grant projects, provided such loans are sold Administration, Office of Housing, with FHA insurance. Baltimore, MD, Project Number: 052– HD071/MD06–Q051–005. Department of Housing and Urban Granted by: Brian D. Montgomery, Development, 451 7th Street, SW., Assistant Secretary for Housing-Federal Nature of Requirement: Section 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– Housing Commissioner. 8000, telephone number 202–708–3000. Date Granted: August 18, 2008. amount of the approved capital advance • Regulation: 24 CFR 891.100(d). Reason Waived: This regulation was funds prior to initial closing. Project/Activity: Princeton Manor, waived in order to allow the Granted by: Brian D. Montgomery, Florida City, FL, Project Number: 066– noncompetitive sale of Malta Square Assistant Secretary for Housing-Federal Housing Commissioner. EE103/FL29–S041–006. and prevent foreclosure of the property. Nature of Requirement: Section Waiver of this requirement would Date Granted: July 10, 2008. Reason Waived: The project is 891.100(d) prohibits amendment of the produce budget savings by generating amount of the approved capital proceeds to the U.S. Treasury and economically designed and comparable in cost to similar projects in the area, advcance funds prior to closing. reduce the number of loans in the HUD- Granted by: Brian D. Montgomery, and the sponsor/owner exhausted all held mortgage inventory. Assistant Secretary for Housing-Federal efforts to obtain additional funding from Contact: Beverly J. Miller, Director, Housing Commissioner. Office of Asset Management, Office of other sources. Date Granted: July 18, 2008. Housing, Department of Housing and Contact: Willie Spearmon, Director, Reason Waived: The project is Urban Development, 451 7th Street, Office of Housing Assistance and Grant economically designed and comparable SW., Room 6160, Washington, DC Administration, Office of Housing, in cost to similar projects in the area, 20410–8000, telephone number 202– Department of Housing and Urban and the sponsor/owner exhausted all 708–3730. Development, 451 7th Street, SW., efforts to obtain additional funding from • Regulation: 24 CFR 5.655(b)(5). Room 6130, Washington, DC 20410– other sources. Project/Activity: Tumbleweed 8000, telephone number 202–708–3000. Contact: Willie Spearmon, Director, Apartments, Lyons, Kansas—FHA • Regulation: 24 CFR 891.100(d). Office of Housing Assistance and Grant

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Administration, Office of Housing, in cost to similar projects in the area, amount of the approved capital advance Department of Housing and Urban and the sponsor/owner exhausted all funds prior to closing. Development, 451 7th Street, SW., efforts to obtain additional funding from Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– other sources. Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. Contact: Willie Spearmon, Director, Housing Commissioner. • Regulation: 24 CFR 891.100(d). Office of Housing Assistance and Grant Date Granted: August 8, 2008. Project/Activity: Golden Age Administration, Office of Housing, Reason Waived: The project is Apartments, Pine Bluff, AR, Project Department of Housing and Urban economically designed and comparable Number: 082–EE177/AR37–S061–004. Development, 451 7th Street, SW., in cost to similar projects in the area, Nature of Requirement: Section Room 6130, Washington, DC 20410– and the sponsor/owner exhausted all 891.100(d) prohibits amendment of the 8000, telephone number 202–708–3000. efforts to obtain additional funding from amount of the approved capital • Regulation: 24 CFR 891.100(d). other sources. advcance funds prior to closing. Project/Activity: Waynedale II Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Apartment, Fort Wayne, IN, Project Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Number: 073–HD084/IN36–Q071–003. Administration, Office of Housing, Housing Commissioner. Nature of Requirement: Section Department of Housing and Urban Date Granted: July 28, 2008. 891.100(d) prohibits amendment of the Development, 451 7th Street, SW., Reason Waived: The project is amount of the approved capital advance Room 6130, Washington, DC 20410– economically designed and comparable funds prior to closing. 8000, telephone number 202–708–3000. in cost to similar projects in the area, Granted by: Brian D. Montgomery, • Regulation: 24 CFR 891.100(d). and the sponsor/owner exhausted all Assistant Secretary for Housing-Federal Project/Activity: Vista Gallinas efforts to obtain additional funding from Housing Commissioner. Apartments, Las Vegas, NM, Project other sources. Date Granted: August 6, 2008. Number: 116–HD030/NM16–Q061–002. Contact: Willie Spearmon, Director, Reason Waived: The project is Nature of Requirement: Section Office of Housing Assistance and Grant economically designed and comparable 891.100(d) prohibits amendment of the Administration, Office of Housing, in cost to similar projects in the area, amount of the approved capital advance Department of Housing and Urban and the sponsor/owner exhausted all funds prior to closing. Development, 451 7th Street, SW., efforts to obtain additional funding from Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– other sources. Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. Contact: Willie Spearmon, Director, Housing Commissioner. • Regulation: 24 CFR 891.100(d). Office of Housing Assistance and Grant Date Granted: August 13, 2008. Reason Waived: The project is Project/Activity: Penelope 35–II Administration, Office of Housing, economically designed and comparable Apartments, Bloomington, MN, Project Department of Housing and Urban in cost to similar projects in the area, Number: 092–EE127/MN46–S071–003. Development, 451 7th Street, SW., and the sponsor/owner exhausted all Nature of Requirement: Section Room 6130, Washington, DC 20410– efforts to obtain additional funding from 891.100(d) prohibits amendment of the 8000, telephone number 202–708–3000. amount of the approved capital advance other sources. • Regulation: 24 CFR 891.100(d). funds prior to closing. Contact: Willie Spearmon, Director, Project/Activity: Hawkins House Granted by: Brian D. Montgomery, Office of Housing Assistance and Grant Apartments, Lake Stevens, WA, Project Assistant Secretary for Housing-Federal Administration, Office of Housing, Number: 127–EE059/WA19–S061–002. Housing Commissioner. Department of Housing and Urban Date Granted: July 30, 2008. Nature of Requirement: Section Development, 451 7th Street, SW., Reason Waived: The project is 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– economically designed and comparable amount of the approved capital advance 8000, telephone number 202–708–3000. in cost to similar projects in the area, funds prior to closing. • Regulation: 24 CFR 891.100(d). and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Project/Activity: TELACU–El Paseo, efforts to obtain additional funding from Assistant Secretary for Housing-Federal Riverside, CA, Project Number: 143– other sources. Housing Commissioner. EE064/CA43–Q061–003. Contact: Willie Spearmon, Director, Date Granted: August 7, 2008. Nature of Requirement: Section Office of Housing Assistance and Grant Reason Waived: The project is 891.100(d) prohibits amendment of the Administration, Office of Housing, economically designed and comparable amount of the approved capital advance Department of Housing and Urban in cost to similar projects in the area, funds prior to closing. Development, 451 7th Street, SW., and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– efforts to obtain additional funding from Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. other sources. Housing Commissioner. Contact: Willie Spearmon, Director, • Regulation: 24 CFR 891.100(d). Date Granted: August 14, 2008. Project/Activity: Cornerstone Homes, Office of Housing Assistance and Grant Reason Waived: The project is New Orleans, LA, Project Number: 064– Administration, Office of Housing, economically designed and comparable EE167/LA48–S041–005. Department of Housing and Urban in cost to similar projects in the area, Nature of Requirement: Section Development, 451 7th Street, SW., and the sponsor/owner exhausted all 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– efforts to obtain additional funding from amount of the approved capital advance 8000, telephone number 202–708–3000. other sources. funds prior to closing. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Project/Activity: Bayou LaBatre VOA Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Elderly Housing, Incorporated, Bayou Administration, Office of Housing, Housing Commissioner. LaBatre, AL, Project Number: 062– Department of Housing and Urban Date Granted: August 5, 2008. EE082/AL09–S061–002. Development, 451 7th Street, SW., Reason Waived: The project is Nature of Requirement: Section Room 6130, Washington, DC 20410– economically designed and comparable 891.100(d) prohibits amendment of the 8000, telephone number 202–708–3000.

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• Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Date Granted: August 26, 2008. Project/Activity: Community Homes Office of Housing Assistance and Grant Reason Waived: The project is of Bismarck, Bismarck, ND, Project Administration, Office of Housing, economically designed and comparable Number: 094–HD015/ND99–Q061–001. Department of Housing and Urban in cost to similar projects in the area, Nature of Requirement: Section Development, 451 7th Street, SW., and the sponsor/owner exhausted all 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– efforts to obtain additional funding from amount of the approved capital advance 8000, telephone number 202–708–3000. other sources. funds prior to closing. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Project/Activity: Oasis de Amor, Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Patillas, PR, Project Number: 056– Administration, Office of Housing, Housing Commissioner. HD032/RQ46–Q061–002. Department of Housing and Urban Date Granted: August 15, 2008. Nature of Requirement: Section Development, 451 7th Street, SW., Reason Waived: The project is 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– economically designed and comparable amount of the approved capital advance 8000, telephone number 202–708–3000. in cost to similar projects in the area, funds prior to closing. • Regulation: 24 CFR 891.100(d). and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Project/Activity: Golden Plains II, efforts to obtain additional funding from Assistant Secretary for Housing-Federal Garden City, KS, Project Number: 102– other sources. Housing Commissioner. HD039/KS16–Q071–003. Contact: Willie Spearmon, Director, Date Granted: August 25, 2008. Nature of Requirement: Section Office of Housing Assistance and Grant Reason Waived: The project is 891.100(d) prohibits amendment of the Administration, Office of Housing, economically designed and comparable amount of the approved capital advance Department of Housing and Urban in cost to similar projects in the area, funds prior to closing. Development, 451 7th Street, SW., and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– efforts to obtain additional funding from Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. other sources. Housing Commissioner. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Date Granted: September 4, 2008. Project/Activity: Rockland Street Office of Housing Assistance and Grant Reason Waived: The project is Elderly Housing, Roxbury, MA, Project Administration, Office of Housing, economically designed and comparable Number: 023–EE206/MA06–S061–005. Department of Housing and Urban in cost to similar projects in the area, Nature of Requirement: Section Development, 451 7th Street, SW., and the sponsor/owner exhausted all 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– efforts to obtain additional funding from amount of the approved capital advance 8000, telephone number 202–708–3000. other sources. funds prior to closing. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Project/Activity: La Casa de Dona Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Here, Mayaguez, PR, Project Number: Administration, Office of Housing, Housing Commissioner. 056–HD028/RQ46–Q051–003. Department of Housing and Urban Date Granted: August 16, 2008. Nature of Requirement: Section Development, 451 7th Street, SW., Reason Waived: The project is 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– economically designed and comparable amount of the approved capital advance 8000, telephone number 202–708–3000. in cost to similar projects in the area, funds prior to closing. • Regulation: 24 CFR 891.100(d). and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Project/Activity: SHDC No. 12, Kailua efforts to obtain additional funding from Assistant Secretary for Housing-Federal Kona, HI, Project Number: 140–HD030/ other sources. Housing Commissioner. HI10–Q041–001. Contact: Willie Spearmon, Director, Date Granted: August 25, 2008. Nature of Requirement: Section Office of Housing Assistance and Grant Reason Waived: The project is 891.100(d) prohibits amendment of the Administration, Office of Housing, economically designed and comparable amount of the approved capital advance Department of Housing and Urban in cost to similar projects in the area, funds prior to closing. Development, 451 7th Street, SW., and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– efforts to obtain additional funding from Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. other sources. Housing Commissioner. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Date Granted: September 5, 2008. Project/Activity: Ken-Crest PA 2006, Office of Housing Assistance and Grant Reason Waived: The project is Philadelphia, PA, Project Number: 034– Administration, Office of Housing, economically designed and comparable HD093/PA26–Q061–001. Department of Housing and Urban in cost to similar projects in the area, Nature of Requirement: Section Development, 451 7th Street, SW., and the sponsor/owner exhausted all 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– efforts to obtain additional funding from amount of the approved capital advance 8000, telephone number 202–708–3000. other sources. funds prior to closing. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Project/Activity: Community Options Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Eleanor, Howell Twp, NJ, Project Administration, Office of Housing, Housing Commissioner. Number: 031–HD148/NJ39–Q061–001. Department of Housing and Urban Date Granted: August 18, 2008. Nature of Requirement: Section Development, 451 7th Street, SW., Reason Waived: The project is 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– economically designed and comparable amount of the approved capital advance 8000, telephone number 202–708–3000. in cost to similar projects in the area, funds prior to closing. • Regulation: 24 CFR 891.100(d). and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Project/Activity: Lovejoy Road, North efforts to obtain additional funding from Assistant Secretary for Housing-Federal Andover, MA, Project Number: 023– other sources. Housing Commissioner. HD220/MA06–Q051–001.

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Nature of Requirement: Section Development, 451 7th Street, SW., and the sponsor/owner exhausted all 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– efforts to obtain additional funding from amount of the approved capital advance 8000, telephone number 202–708–3000. other sources. funds prior to closing. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Project/Activity: ASI-Worthington, Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Worthington, MN, Project Number: 092– Administration, Office of Housing, Housing Commissioner. EE125/MN46–S071–001. Department of Housing and Urban Date Granted: September 8, 2008. Nature of Requirement: Section Development, 451 7th Street, SW., Reason Waived: The project is 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– economically designed and comparable amount of the approved capital advance 8000, telephone number 202–708–3000. in cost to similar projects in the area, funds prior to closing. • Regulation: 24 CFR 891.100(d). and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Project/Activity: Toby House VII, efforts to obtain additional funding from Assistant Secretary for Housing-Federal Phoenix, AZ, Project Number: 123– other sources. Housing Commissioner. HD039/AZ20–Q051–001. Contact: Willie Spearmon, Director, Date Granted: September 9, 2008. Nature of Requirement: Section Office of Housing Assistance and Grant Reason Waived: The project is 891.100(d) prohibits amendment of the Administration, Office of Housing, economically designed and comparable amount of the approved capital advance Department of Housing and Urban in cost to similar projects in the area, funds prior to closing. Development, 451 7th Street, SW., and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– efforts to obtain additional funding from Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. other sources. Housing Commissioner. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Date Granted: September 12, 2008. Reason Waived: The project is Project/Activity: Valley Affordable, Office of Housing Assistance and Grant economically designed and comparable Warwick, RI, Project Number: 016– Administration, Office of Housing, in cost to similar projects in the area, EE059/RI43–S051–002. Department of Housing and Urban and the sponsor/owner exhausted all Nature of Requirement: Section Development, 451 7th Street, SW., efforts to obtain additional funding from 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– 8000, telephone number 202–708–3000. other sources. amount of the approved capital advance Contact: Willie Spearmon, Director, • funds prior to closing. Regulation: 24 CFR 891.100(d). Office of Housing Assistance and Grant Granted by: Brian D. Montgomery, Project/Activity: Gracemont House, Administration, Office of Housing, Assistant Secretary for Housing-Federal Baytown, TX, Project Number: 114– Department of Housing and Urban Housing Commissioner. HD038/TX24–Q071–002. Development, 451 7th Street, SW., Date Granted: September 9, 2008. Nature of Requirement: Section Room 6130, Washington, DC 20410– Reason Waived: The project is 891.100(d) prohibits amendment of the 8000, telephone number 202–708–3000. economically designed and comparable amount of the approved capital advance • in cost to similar projects in the area, Regulation: 24 CFR 891.100(d). funds prior to closing. Project/Activity: Henderson and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Supportive Housing, Henderson, NV, efforts to obtain additional funding from Assistant Secretary for Housing-Federal Project Number: 125–HD074/NV25– other sources. Housing Commissioner. Q061–001. Contact: Willie Spearmon, Director, Date Granted: September 10, 2008. Nature of Requirement: Section Office of Housing Assistance and Grant Reason Waived: The project is 891.100(d) prohibits amendment of the Administration, Office of Housing, economically designed and comparable amount of the approved capital advance Department of Housing and Urban in cost to similar projects in the area, funds prior to closing. Development, 451 7th Street, SW., and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– efforts to obtain additional funding from Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. other sources. Housing Commissioner. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Date Granted: September 12, 2008. Project/Activity: Leonia Retirement Office of Housing Assistance and Grant Reason Waived: The project is Housing II, Leonia, NJ, Project Number: Administration, Office of Housing, economically designed and comparable 031–EE069/NJ39–S061–003. Department of Housing and Urban in cost to similar projects in the area, Nature of Requirement: Section Development, 451 7th Street, SW., and the sponsor/owner exhausted all 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– efforts to obtain additional funding from amount of the approved capital advance 8000, telephone number 202–708–3000. other sources. funds prior to closing. • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Project/Activity: South Central Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Industries, Shawnee, OK, Project Administration, Office of Housing, Housing Commissioner. Number: 117–HD038/OK56–Q071–001. Department of Housing and Urban Date Granted: September 9, 2008. Nature of Requirement: Section Development, 451 7th Street, SW., Reason Waived: The project is 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– economically designed and comparable amount of the approved capital advance 8000, telephone number 202–708–3000. in cost to similar projects in the area, funds prior to closing. • Regulation: 24 CFR 891.100(d). and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Project/Activity: Silvercrest Senior efforts to obtain additional funding from Assistant Secretary for Housing-Federal Housing, Briarwood, NY, Project other sources. Housing Commissioner. Number: 012–EE349/NY36–S061–005. Contact: Willie Spearmon, Director, Date Granted: September 10, 2008. Nature of Requirement: Section Office of Housing Assistance and Grant Reason Waived: The project is 891.100(d) prohibits amendment of the Administration, Office of Housing, economically designed and comparable amount of the approved capital advance Department of Housing and Urban in cost to similar projects in the area, funds prior to closing.

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Granted by: Brian D. Montgomery, Project/Activity: Margaret B. Mack Reason Waived: The project is Assistant Secretary for Housing-Federal Apartments, New Haven, CT, Project economically designed and comparable Housing Commissioner. Number: 017–HD038/CT26–Q061–001. in cost to similar projects in the area, Date Granted: September 23, 2008. Nature of Requirement: Section and the sponsor/owner exhausted all Reason Waived: The project is 891.100(d) prohibits amendment of the efforts to obtain additional funding from economically designed and comparable amount of the approved capital advance other sources. The sponsor/owner in cost to similar projects in the area, funds prior to closing. required additional time to find a and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, suitable site. efforts to obtain additional funding from Assistant Secretary for Housing-Federal Contact: Willie Spearmon, Director, other sources. Housing Commissioner. Office of Housing Assistance and Grant Contact: Willie Spearmon, Director, Date Granted: September 24, 2008. Administration, Department of Housing Office of Housing Assistance and Grant Reason Waived: The project is and Urban Development, 451 7th Street, Administration, Office of Housing, economically designed and comparable SW., Washington, DC 20410–8000, Department of Housing and Urban in cost to similar projects in the area, telephone number 202–708–3000. Development, 451 7th Street, SW., and the sponsor/owner exhausted all • Regulation: 24 CFR 891.100(d) and Room 6130, Washington, DC 20410– efforts to obtain additional funding from 24 CFR 891.165 8000, telephone number 202–708–3000. other sources. Project/Activity: Ottawa Oak Harbor, • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Oak Harbor, OH, Project Number: 042– Project/Activity: Vista Gallinas, Las Office of Housing Assistance and Grant EE194/OH12–S051–008. Vegas, NM, Project Number: 116– Administration, Office of Housing, Nature of Requirement: Section HD030/NM16–Q061–002. Department of Housing and Urban 891.100(d) prohibits amendment of the Nature of Requirement: Section Development, 451 7th Street, SW., amount of the approved capital advance 891.100(d) prohibits amendment of the Room 6130, Washington, DC 20410– funds prior to initial closing. Section amount of the approved capital advance 8000, telephone number 202–708–3000. 891.165 provides that the duration of funds prior to closing. • Regulation: 24 CFR 891.100(d). the fund reservation of the capital Granted by: Brian D. Montgomery, Project/Activity: St. Mary’s Senior advance is 18 months from the date of Assistant Secretary for Housing-Federal Residence, Dumont, NJ, Project Number: issuance with limited exceptions up to Housing Commissioner. 031–EE067/NY39–S061–001. 24 months, as approved by HUD on a Date Granted: September 23, 2008. Nature of Requirement: Section case-by-case basis. Reason Waived: The project is 891.100(d) prohibits amendment of the Granted by: Brian D. Montgomery, economically designed and comparable amount of the approved capital advance Assistant Secretary for Housing-Federal in cost to similar projects in the area, funds prior to closing. Housing Commissioner. and the sponsor/owner exhausted all Granted by: Brian D. Montgomery, Date Granted: August 8, 2008. efforts to obtain additional funding from Assistant Secretary for Housing-Federal Reason Waived: The project is other sources. Housing Commissioner. economically designed and comparable Contact: Willie Spearmon, Director, Date Granted: September 25, 2008. in cost to similar projects in the area, Office of Housing Assistance and Grant Reason Waived: The project is and the sponsor/owner exhausted all Administration, Office of Housing, economically designed and comparable efforts to obtain additional funding from Department of Housing and Urban in cost to similar projects in the area, other sources. The sponsor/owner Development, 451 7th Street, SW., and the sponsor/owner exhausted all required additional time to achieve an Washington, DC 20410–8000, telephone efforts to obtain additional funding from initial closing. number 202–708–3000. other sources. Contact: Willie Spearmon, Director, • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Office of Housing Assistance and Grant Project/Activity: CSPNJ Homes 2006, Office of Housing Assistance and Grant Administration, Office of Housing, Pennsville, NJ, Project Number: 035– Administration, Office of Housing, Department of Housing and Urban HD064/NJ39–Q061–005. Department of Housing and Urban Development, 451 7th Street, SW., Nature of Requirement: Section Development, 451 7th Street, SW., Room 6130, Washington, DC 20410– 891.100(d) prohibits amendment of the Washington, DC 20410–8000, telephone 8000, telephone number 202–708–3000. amount of the approved capital advance number 202–708–3000. • Regulation: 24 CFR 891.100(d) and funds prior to closing. • Regulation: 24 CFR 891.100(d) and 24 CFR 891.165. Granted by: Brian D. Montgomery, 24 CFR 891.165. Project/Activity: Berkshire County Assistant Secretary for Housing-Federal Project/Activity: Middle Street ARC-Lanesborough, Lanesborough, MA, Housing Commissioner. Residence, Amesbury, MA, Project Project Number: 023–HD224/MA06– Date Granted: September 23, 2008. Number: 023–HD199/MA06–Q031–007. Q051–005. Reason Waived: The project is Nature of Requirement: Section Nature of Requirement: Section economically designed and comparable 891.100(d) prohibits amendment of the 891.100(d) prohibits amendment of the in cost to similar projects in the area, amount of the approved capital advance amount of the approved capital advance and the sponsor/owner exhausted all funds prior to initial closing. Section funds prior to initial closing. Section efforts to obtain additional funding from 891.165 provides that the duration of 891.165 provides that the duration of other sources. the fund reservation of the capital the fund reservation of the capital Contact: Willie Spearmon, Director, advance is 18 months from the date of advance is 18 months from the date of Office of Housing Assistance and Grant issuance with limited exceptions up to issuance with limited exceptions up to Administration, Office of Housing, 24 months, as approved by HUD on a 24 months, as approved by HUD on a Department of Housing and Urban case-by-case basis. case-by-case basis. Development, 451 7th Street, SW., Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, Room 6130, Washington, DC 20410– Assistant Secretary for Housing-Federal Assistant Secretary for Housing-Federal 8000, telephone number 202–708–3000. Housing Commissioner. Housing Commissioner. • Regulation: 24 CFR 891.100(d). Date Granted: August 1, 2008. Date Granted: August 13, 2008.

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Reason Waived: The project is Reason Waived: The project is Date Granted: August 25, 2008. economically designed and comparable economically designed and comparable Reason Waived: The project is in cost to similar projects in the area, in cost to similar projects in the area, economically designed and comparable and the sponsor/owner exhausted all and the sponsor/owner exhausted all in cost to similar projects in the area, efforts to obtain additional funding from efforts to obtain additional funding from and the sponsor/owner exhausted all other sources. The sponsor/owner other sources. The sponsor/owner efforts to obtain additional funding from required additional time to achieve an required additional time to achieve an other sources. Additional time was initial closing. initial closing. needed for the firm commitment Contact: Willie Spearmon, Director, Contact: Willie Spearmon, Director, application to be processed and for the Office of Housing Assistance and Grant Office of Housing Assistance and Grant project to achieve an initial closing. Administration, Office of Housing, Administration, Office of Housing, Contact: Willie Spearmon, Director, Department of Housing and Urban Department of Housing and Urban Office of Housing Assistance and Grant Development, 451 7th Street, SW., Development, 451 7th Street, SW., Administration, Office of Housing, Room 6130, Washington, DC 20410– Room 6130, Washington, DC 20410– Department of Housing and Urban 8000, telephone number 202–708–3000. 8000, telephone number 202–708–3000. Development, 451 7th Street, SW., • Regulation: 24 CFR 891.100(d) and • Regulation: 24 CFR 891.100(d) and Room 6130, Washington, DC 20410– 24 CFR 891.165. 24 CFR 891.165. 8000, telephone number 202–708–3000. Project/Activity: Transitional Services Project/Activity: Shillman House, • Regulation: 24 CFR 891.100(d) and for New York, New York, NY, Project Framingham, MA, Project Number: 023– 24 CFR 891.165. Number: 012–EE128/NY36–Q051–002. EE187/MA06–S051–004. Project/Activity: Independence Manor Nature of Requirement: Section Nature of Requirement: Section III, Braintree, MA, Project Number: 023– 891.100(d) prohibits amendment of the 891.100(d) prohibits amendment of the EE169/MA06–S031–004. amount of the approved capital advance amount of the approved capital advance Nature of Requirement: Section funds prior to initial closing. Section funds prior to initial closing. Section 891.100(d) prohibits amendment of the 891.165 provides that the duration of 891.165 provides that the duration of amount of the approved capital advance the fund reservation of the capital the fund reservation of the capital funds prior to initial closing. Section advance is 18 months from the date of advance is 18 months from the date of 891.165 provides that the duration of issuance with limited exceptions up to issuance with limited exceptions up to the fund reservation of the capital 24 months, as approved by HUD on a 24 months, as approved by HUD on a advance is 18 months from the date of case-by-case basis. case-by-case basis. issuance with limited exceptions up to Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, 24 months, as approved by HUD on a Assistant Secretary for Housing-Federal Assistant Secretary for Housing-Federal case-by-case basis. Housing Commissioner. Housing Commissioner. Granted by: Brian D. Montgomery, Date Granted: August 15, 2008. Date Granted: August 19, 2008. Assistant Secretary for Housing-Federal Reason Waived: The project is Reason Waived: The project is Housing Commissioner. economically designed and comparable economically designed and comparable Date Granted: September 10, 2008. in cost to similar projects in the area, in cost to similar projects in the area, Reason Waived: The project is and the sponsor/owner exhausted all and the sponsor/owner exhausted all economically designed and comparable efforts to obtain additional funding from efforts to obtain additional funding from in cost to similar projects in the area, other sources. The sponsor/owner other sources. Additional time was and the sponsor/owner exhausted all required additional time to achieve an needed for the firm commitment efforts to obtain additional funding from initial closing. application to be processed and for the other sources. The sponsor/owner Contact: Willie Spearmon, Director, project to achieve an initial closing. required additional time to resolve site Office of Housing Assistance and Grant Contact: Willie Spearmon, Director, issues. Administration, Office of Housing, Office of Housing Assistance and Grant Contact: Willie Spearmon, Director, Department of Housing and Urban Administration, Office of Housing, Office of Housing Assistance and Grant Development, 451 7th Street, SW., Department of Housing and Urban Administration, Office of Housing, Room 6130, Washington, DC 20410– Development, 451 7th Street, SW., Department of Housing and Urban 8000, telephone number 202–708–3000. Room 6130, Washington, DC 20410– Development, 451 7th Street, SW., • Regulation: 24 CFR 891.100(d) and 8000, telephone number 202–708–3000. Room 6130, Washington, DC 20410– 24 CFR 891.165. • Regulation: 24 CFR 891.100(d) and 8000, telephone number 202–708–3000. Project/Activity: Roncalli Apartments, 24 CFR 891.165. • Regulation: 24 CFR 891.130(b). Augusta, ME, Project Number: 024– Project/Activity: TRC Senior Village I, Project/Activity: Roncalli Apartments, EE085/ME36–S041–003. Chicago, IL, Project Number: 071– Augusta, ME, Project Number: 024– Nature of Requirement: Section EE212/IL06–S051–006. EE085/ME36–S041–003. 891.100(d) prohibits amendment of the Nature of Requirement: Section Nature of Requirement: Section amount of the approved capital advance 891.100(d) prohibits amendment of the 891.130(a) prohibits an identity of funds prior to initial closing. Section amount of the approved capital advance interest between the Sponsor or Owner 891.165 provides that the duration of funds prior to initial closing. Section with development team members or the fund reservation of the capital 891.165 provides that the duration of between development team members advance is 18 months from the date of the fund reservation of the capital until two years after final closing. issuance with limited exceptions up to advance is 18 months from the date of Granted by: Brian D. Montgomery, 24 months, as approved by HUD on a issuance with limited exceptions up to Assistant Secretary for Housing-Federal case-by-case basis. 24 months, as approved by HUD on a Housing Commissioner. Granted by: Brian D. Montgomery, case-by-case basis. Date Granted: September 17, 2008. Assistant Secretary for Housing-Federal Granted by: Brian D. Montgomery, Reason Waived: All three entities Housing Commissioner. Assistant Secretary for Housing-Federal have five common board members and Date Granted: August 15, 2008. Housing Commissioner. fall under the umbrella of the Catholic

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Church and meet the HUD advance is 18 months from the date of • Regulation: 24 CFR 891.165. requirements. issuance with limited exceptions up to Project/Activity: Denver VOA Contact: Willie Spearmon, Director, 24 months, as approved by HUD on a Lawrence Street, Denver, CO, Project Office of Housing Assistance and Grant case-by-case basis. Number: 101–HD040/CO99–Q051–001. Administration, Office of Housing, Granted by: Brian D. Montgomery, Nature of Requirement: Section Department of Housing and Urban Assistant Secretary for Housing-Federal 891.165 provides that the duration of Development, 451 7th Street, SW., Housing Commissioner. the fund reservation of the capital Room 6130, Washington, DC 20410– Date Granted: August 5, 2008. advance is 18 months from the date of 8000, telephone number 202–708–3000. Reason Waived: The sponsor/owner issuance with limited exceptions up to • Regulation: 24 CFR 891.165. needed additional time for an initial 24 months, as approved by HUD on a Project/Activity: TBD, Pittsfield, MA, closing to take place. case-by-case basis. Project Number: 023–HD214/MA06– Contact: Willie Spearmon, Director, Granted by: Brian D. Montgomery, Q041–003. Office of Housing Assistance and Grant Assistant Secretary for Housing-Federal Nature of Requirement: Section Administration, Office of Housing, Housing Commissioner. 891.165 provides that the duration of Department of Housing and Urban Date Granted: August 19, 2008. the fund reservation of the capital Development, 451 7th Street, SW., Reason Waived: Additional time was advance is 18 months from the date of Room 6130, Washington, DC 20410– needed for the project to reach initial issuance with limited exceptions up to 8000, telephone number 202–708–3000. closing. • 24 months, as approved by HUD on a Regulation: 24 CFR 891.165. Contact: Willie Spearmon, Director, case-by-case basis. Project/Activity: Mulberry Manor, Office of Housing Assistance and Grant Granted by: Brian D. Montgomery, Wayne, West Virginia, Project Number: Administration, Office of Housing, Assistant Secretary for Housing-Federal 045–HD041/WV15–Q051–001. Department of Housing and Urban Housing Commissioner. Nature of Requirement: Section Development, 451 7th Street, SW., Date Granted: August 5, 2008. 891.165 provides that the duration of Room 6130, Washington, DC 20410– Reason Waived: Additional time was the fund reservation of the capital 8000, telephone number 202–708–3000. needed for the firm commitment advance is 18 months from the date of • Regulation: 24 CFR 891.165. application to be processed and for the issuance with limited exceptions up to Project/Activity: Morning Star project to achieve an initial closing. 24 months, as approved by HUD on a Housing, Moline, IL, Project Number: Contact: Willie Spearmon, Director, case-by-case basis. 071–HD156/IL06–Q061–007. Granted by: Brian D. Montgomery, Office of Housing Assistance and Grant Nature of Requirement: Section Assistant Secretary for Housing-Federal Administration, Office of Housing, 891.165 provides that the duration of Housing Commissioner. Department of Housing and Urban the fund reservation of the capital Development, 451 7th Street, SW., Date Granted: August 7, 2008. Reason Waived: Additional time was advance is 18 months from the date of Room 6130, Washington, DC 20410– needed for the project to be initially issuance with limited exceptions up to 8000, telephone number 202–708–3000. closed. 24 months, as approved by HUD on a • Regulation: 24 CFR 891.165. Contact: Willie Spearmon, Director, case-by-case basis. Project/Activity: Claremont House, Office of Housing Assistance and Grant Granted by: Brian D. Montgomery, Mt. Vernon, NY, Project Number: 012– Administration, Office of Housing, Assistant Secretary for Housing-Federal HD135/NY36–Q011–007. Department of Housing and Urban Housing Commissioner. Nature of Requirement: Section Development, 451 7th Street, SW., Date Granted: September 4, 2008. 891.165 provides that the duration of Room 6130, Washington, DC 20410– Reason Waived: Additional time was the fund reservation of the capital 8000, telephone number 202–708–3000. needed to process the firm commitment and for the project to reach initial advance is 18 months from the date of • Regulation: 24 CFR 891.165. issuance with limited exceptions up to Project/Activity: Easter Seals- closing. 24 months, as approved by HUD on a Goodwill, Sheridan, WY, Project Contact: Willie Spearmon, Director, case-by-case basis. Number: 109–HD014/WY99–Q051–001. Office of Housing Assistance and Grant Granted by: Brian D. Montgomery, Nature of Requirement: Section Administration, Office of Housing, Assistant Secretary for Housing-Federal 891.165 provides that the duration of Department of Housing and Urban Housing Commissioner. the fund reservation of the capital Development, 451 7th Street, SW., Date Granted: August 5, 2008. advance is 18 months from the date of Room 6130, Washington, DC 20410– Reason Waived: The sponsor/owner issuance with limited exceptions up to 8000, telephone number 202–708–3000. needed additional time to resolve issues 24 months, as approved by HUD on a • Regulation: 24 CFR 891.165. with the City of Mt. Vernon, NY case-by-case basis. Project/Activity: Morning Star Senior regarding its tax exemption status. Granted by: Brian D. Montgomery, Residences, Moline, IL, Project Number: Contact: Willie Spearmon, Director, Assistant Secretary for Housing-Federal 071–EE216/IL06–S051–011. Office of Housing Assistance and Grant Housing Commissioner. Nature of Requirement: Section Administration, Office of Housing, Date Granted: August 13, 2008. 891.165 provides that the duration of Department of Housing and Urban Reason Waived: The sponsor/owner the fund reservation of the capital Development, 451 7th Street, SW., needed additional time to resolve site advance is 18 months from the date of Room 6130, Washington, DC 20410– issues and for the project to be initially issuance with limited exceptions up to 8000, telephone number 202–708–3000. closed. 24 months, as approved by HUD on a • Regulation: 24 CFR 891.165. Contact: Willie Spearmon, Director, case-by-case basis. Project/Activity: Lovejoy Road, North Office of Housing Assistance and Grant Granted by: Brian D. Montgomery, Andover, MA, Project Number: 023– Administration, Office of Housing, Assistant Secretary for Housing-Federal HD220/MA06–Q051–001. Department of Housing and Urban Housing Commissioner. Nature of Requirement: Section Development, 451 7th Street, SW., Date Granted: September 9, 2008. 891.165 provides that the duration of Room 6130, Washington, DC 20410– Reason Waived: The owner/sponsor the fund reservation of the capital 8000, telephone number 202–708–3000. needed additional time to resubmit

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exhibits for the site change to be Nature of Requirement: Section approved by HUD. Section 891.830(c)(4) approved, for the firm commitment to 891.165 provides that the duration of prohibits the capital advance funds from be processed and for the project to reach the fund reservation of the capital paying off bridge or construction initial closing. advance is 18 months from the date of financing, or repaying or collateralizing Contact: Willie Spearmon, Director, issuance with limited exceptions up to bonds. Office of Housing Assistance and Grant 24 months, as approved by HUD on a Granted by: Brian D. Montgomery, Administration, Office of Housing, case-by-case basis. Assistant Secretary for Housing-Federal Department of Housing and Urban Granted by: Brian D. Montgomery, Housing Commissioner. Development, 451 7th Street, SW., Assistant Secretary for Housing-Federal Date Granted: July 8, 2008. Room 6130, Washington, DC 20410– Housing Commissioner. Reason Waived: Additional time was 8000, telephone number 202–708–3000. Date Granted: September 30, 2008. needed for the firm commitment to be • Regulation: 24 CFR 891.165. Reason Waived: Additional time was issued and for the project to be initially/ Project/Activity: Center of Hope, needed for the firm commitment to be finally closed. The proposed sole Southbridge, MA, Project Number: 023– issued and for the project to be initially nonprofit general patner of the for-profit HD221/MA06–Q051–002. closed. mixed finance owner meets the statutoy Nature of Requirement: Section Contact: Willie Spearmon, Director, definition. Also, the other funding 891.165 provides that the duration of Office of Housing Assistance and Grant sources needed to be disbursed faster the fund reservation of the capital Administration, Office of Housing, than a pro rata disbursement would advance is 18 months from the date of Department of Housing and Urban allow, and the capital advance funds issuance with limited exceptions up to Development, 451 7th Street, SW., will only be used to pay off the portion 24 months, as approved by HUD on a Room 6130, Washington, DC 20410– of the construction financing that case-by-case basis. 8000, telephone number 202–708–3000. strictly relate to capital advance eligible Granted by: Brian D. Montgomery, • Regulation: 24 CFR 891.165. costs. Assistant Secretary for Housing-Federal Project/Activity: Red Lake Supportive Contact: Willie Spearmon, Director, Housing Commissioner. Housing, Red Lake, MN, Project Office of Housing Assistance and Grant Date Granted: September 18, 2008. Number: 092–HD069/MN46–Q061–002. Administration, Office of Housing, Reason Waived: The sponsor/owner Department of Housing and Urban needed additional time to reach an Nature of Requirement: Section 891.165 provides that the duration of Development, 451 7th Street, SW., agreement with the state architect Room 6130, Washington, DC 20410– concerning the resigning of the the fund reservation of the capital advance is 18 months from the date of 8000, telephone number 202–708–3000. configuration of the project. • Regulation: 24 CFR 891.205. Contact: Willie Spearmon, Director, issuance with limited exceptions up to 24 months, as approved by HUD on a Project/Activity: Cornerstone Homes, Office of Housing Assistance and Grant New Orleans, LA, Project Number: 064– Administration, Office of Housing, case-by-case basis. Granted by: Brian D. Montgomery, EE167/LA48–S041–005. Department of Housing and Urban Nature of Requirement: Section Development, 451 7th Street, SW., Assistant Secretary for Housing-Federal Housing Commissioner. 891.205 requires Section 202 project Room 6130, Washington, DC 20410– owners to have tax exemption status 8000, telephone number 202–708– Date Granted: September 30, 2008. Reason Waived: The sponsor/owner under Section 501(c)(3) or (c)(4) of the 3000. Internal Revenue Code. • needed additional time to complete Regulation: 24 CFR 891.165. submission of the firm application and Granted by: Brian D. Montgomery, Project/Activity: Laurel Place, West for the project to be initially closed. Assistant Secretary for Housing-Federal Hollywood, CA, Project Number: 122– Contact: Willie Spearmon, Director, Housing Commissioner. EE187/CA16–S031–003. Date Granted: August 8, 2008. Office of Housing Assistance and Grant Nature of Requirement: Section Reason Waived: The required tax- Administration, Office of Housing, 891.165 provides that the duration of exemption ruling from IRS was to be Department of Housing and Urban the fund reservation of the capital issued, but not in time for the scheduled Development, 451 7th Street, SW., advance is 18 months from the date of initial closing of the project. Room 6130, Washington, DC 20410– issuance with limited exceptions up to Contact: Willie Spearmon, Director, 8000, telephone number 202–708–3000. 24 months, as approved by HUD on a Office of Housing Assistance and Grant • case-by-case basis. Regulation: 24 CFR 891.165 and 24 Administration, Office of Housing, Granted by: Brian D. Montgomery, CFR 891.805 and 891.830(b) and Department of Housing and Urban Assistant Secretary for Housing-Federal 891.830(c)(4). Development, 451 7th Street, SW., Housing Commissioner. Project/Activity: Montclair Senior Room 6130, Washington, DC 20410– Date Granted: September 23, 2008. Apartments, Montclair, CA, Project 8000, telephone number 202–708–3000. Reason Waived: The sponsor/owner Number: 143–EE062/CA43–S061–001. • Regulation: 24 CFR 891.205. needed additional time to resolve Nature of Requirement: Section Project/Activity: Silvercrest Senior opposition and litigation issues and for 891.165 provides that the duration of Housing, Briarwood, NY, Project the project to achieve an initial closing. the fund reservation of the capital Number: 012–EE349/NY36–S061–005. Contact: Willie Spearmon, Director, advance is 18 months from the date of Nature of Requirement: Section Office of Housing Assistance and Grant issuance with limited exceptions up to 891.205 requires Section 202 project Administration, Office of Housing, 24 months, as approved by HUD on a owners to have tax exemption status Department of Housing and Urban case-by-case basis. Section 891.805 under Section 501(c)(3) or (c)(4) of the Development, 451 7th Street, SW., requires that the general partner in the Internal Revenue Code. Room 6130, Washington, DC 20410– for-profit limitied partnership be a Granted by: Brian D. Montgomery, 8000, telephone number 202–708–3000. Private Nonprofit Organization. Section Assistant Secretary for Housing-Federal • Regulation: 24 CFR 891.165. 891.830(b) requires that capital advance Housing Commissioner. Project/Activity: Academy Place, funds be drawn down only in an Date Granted: September 25, 2008. Gowanda, NY, Project Number: 014– approved ratio to other funds in Reason Waived: The required tax- EE253/NY06–Q051–009. accordance with a drawndown schedule exemption ruling from IRS was to be

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issued, but not in time for the scheduled Reason Waived: This regulatory very low-income and elderly restriction initial closing of the project. waiver allowed the owner to stabilize allowed the owner/managing agent Contact: Willie Spearmon, Director, the project’s current financial status and flexibility in renting vacant units, Office of Housing Assistance and Grant prevent foreclosure. Waiver of this thereby allowing the project to operate Administration, Office of Housing, regulation permitted admission of successfully and achieve full occupancy Department of Housing and Urban applicants who meet the definition of so that the project will not fail. First Development, 451 7th Street, SW., low-income, near elderly, enabling them priority is to be given to all qualified Room 6130, Washington, DC 20410– to rent up the 13 vacant units currently applicants who meet the Section 202 8000, telephone number 202–708–3000. existing at the property and develop a very low-income guidelines. • Regulation: 24 CFR 891.305. waiting list. First priority is to be given Contact: Beverly J. Miller, Director, Project/Activity: Community Options to all qualified eligible applicants who Office of Asset Management, Office of Eleanor, Howell Twp, NJ, Project meet the Section 202 very low-income Housing, Department of Housing and Number: 031–HD148/NJ39–Q061–001. guidelines. Urban Development, 451 7th Street, Nature of Requirement: Section Contact: Beverly J. Miller, Director, SW., Washington, DC 20410–7000, 891.305 requires Section 811 project Office of Asset Management, Office of telephone number 202–708–3730. owners to have tax-exempt status under Housing, Department of Housing and • Regulation: 24 CFR 891.410(c) Section 501(c)(3) of the Internal Urban Development, 451 7th Street, Project/Activity: Maplewood Estates, Revenue Code. SW., Room 6160, Washington, DC Stockton, Missouri—FHA Project Granted by: Brian D. Montgomergy, 20410–7000, telephone number 202– Number 084-EE061. The project is Assistant Secretary for Housing-Federal 708–3730. experiencing difficulty leasing units to Housing Commissioner. • Regulation: 24 CFR 891.410(c). the very low-income elderly. Date Granted: September 9, 2008. Project/Activity: Cypress Knoll Nature of Requirement: Section Reason Waived: The required tax- Apartments, Cave City, Arkansas—FHA 891.410 relates to admission of families exemption ruling from IRS was to be Project Number 082–EE025. The owner/ to projects for elderly or handicapped issued, but not in time for the scheduled managing agent has requested waiver of families that receive reservations under initial closing of the project. the very low-income and elderly Section 202 of the Housing Act of 1959, Contact: Willie Spearmon, Director, restriction to permit admission of lower- as amended by Section 801 of the Office of Housing Assistance and Grant income, near-elderly applicants to National Affordable Housing Act of Administration, Office of Housing, alleviate current vacancy problems at 1990. Section 891.410(c) limits Department of Housing and Urban the property. occupancy to very low-income elderly Development, 451 7th Street, SW., Nature of Requirement: Section persons. Section 891.410 relates to Room 6130, Washington, DC 20410– 891.410 relates to admission of families admission of families to projects for 8000, telephone number 202–798–3000. to projects for elderly or handicapped elderly or handicapped families that • Regulation: 24 CFR 891.410(c). families that receive reservations under receive reservations under Section 202 Project/Activity: Omaha Care Senior Section 202 of the Housing Act of 1959, of the Housing Act of 1959, as amended Living, Macy, Nebraska—FHA Project as amended by Section 801 of the by Section 801 of the National Number 103-EE030. The property has National Affordable Housing Act of Affordable Housing Act of 1990. Section been unable to achieve sustaining 1990. Section 891.410(c) limits 891.410(c) limits occupancy to very occupancy. The project owner is occupancy to very low-income elderly low-income elderly persons. Section requesting permission to admit over- persons. Section 891.410 relates to 891.205 defines elderly as ‘‘a household income applicants and lower the age admission of families to projects for composed of one or more persons at limit to age 55. elderly or handicapped families that least one of whom is 62 years of age or Nature of Requirement: Section receive reservations under Section 202 more at the time of initial occupancy. 891.410 relates to admission of families of the Housing Act of 1959, as amended Granted by: Brian D. Montgomery, to projects for elderly or handicapped by Section 801 of the National Assistant Secretary for Housing-Federal families that receive reservations under Affordable Housing Act of 1990. Section Housing Commissioner. Section 202 of the Housing Act of 1959, 891.410(c) limits occupancy to very Date Granted: July 25, 2008. as amended by Section 801 of the low-income elderly persons. Section Reason Waived: The property had a National Affordable Housing Act of 891.205 defines elderly as ‘‘a household 41% vacancy rate with no eligible 1990. Section 891.410(c) limits composed of one or more persons at applicants on the waiting list. This occupancy to very low-income elderly least one of whom is 62 years of age or waiver allowed the managing agent to persons. Section 891.410 relates to more at the time of initial occupancy.’’ lease units to very low-income, near admission of families to projects for Granted by: Brian D. Montgomery, elderly applicants when there are no elderly or handicapped families that Assistant Secretary for Housing-Federal very low-income elderly applicants on receive reservations under Section 202 Housing Commissioner. the waiting list. The waiver allowed of the Housing Act of 1959, as amended Date Granted: July 14, 2008. stabilization of the project’s current by Section 801 of the National Reason Waived: This regulatory financial status and prevent foreclosure Affordable Housing Act of 1990. Section waiver was granted to assist the of the property. 891.410(c) limits occupancy to very property with its current vacancy Contact: Beverly J. Miller, Director, low-income elderly persons. Section problems by allowing the admission of Office of Asset Management, Office of 891.205 defines elderly as ‘‘a household near-elderly low-income persons. The Housing, Department of Housing and composed of one or more persons at project experienced 19% vacancy rate Urban Development, 451 7th Street, least one of whom is 62 years of age or and exhausted cash reserves to support SW., Room 6160, Washington, DC more at the time of initial occupancy.’’ the operation of the property. The 20410–8000, telephone number 202– Granted by: Brian D. Montgomery, owner/managing agent continued to 708–3730. Assistant Secretary for Housing-Federal aggressively market the property with • Regulation: 24 CFR 891.410(c). Housing Commissioner. local housing authorities and news Project/Activity: Crestview Senior Date Granted: July 7, 2008. media without success. Waiving the Housing, Gothenburg, Nebraska—FHA

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Project Number 103-EE010. This occupancy to very low-income elderly composed of one or more persons at property is experiencing difficulty in persons. Section 891.410 relates to least one of whom is 62 years of age or maintaining full occupancy. The owner/ admission of families to projects for more at the time of initial occupancy.’’ managing agent has requested waiver of elderly or handicapped families that Granted by: Brian D. Montgomery, the age and income requirements to receive reservations under Section 202 Assistant Secretary for Housing-Federal assist in renting up vacant units. of the Housing Act of 1959, as amended Housing Commissioner. Nature of Requirement: Section by Section 801 of the National Date Granted: August 25, 2008. 891.410 relates to admission of families Affordable Housing Act of 1990. Section Reason Waived: Waiver of the to projects for elderly or handicapped 891.410(c) limits occupancy to very regulations governing age and income families that receive reservations under low-income elderly persons. Section requirements was granted to permit Section 202 of the Housing Act of 1959, 891.205 defines elderly as ‘‘a household admission of low-income, near elderly as amended by Section 801 of the composed of one or more persons at applicants. The owner/managing agent National Affordable Housing Act of least one of whom is 62 years of age or was unable to attract very low-income 1990. Section 891.410(c) limits more at the time of initial occupancy. elderly persons despite aggressive occupancy to very low-income elderly Granted by: Brian D. Montgomery, marketing efforts with the local Central persons. Section 891.410 relates to Assistant Secretary for Housing-Federal Wisconsin Action Council and news admission of families to projects for Housing Commissioner. media. The property had 6 vacant units elderly or handicapped families that Date Granted: August 5, 2008. and no waiting list. This waiver allowed receive reservations under Section 202 Reason Waived: Waiver of this flexibility in renting units and allowed of the Housing Act of 1959, as amended regulation allowed the owner/managing the project to operate successfully and by Section 801 of the National agent to rent vacant units to applicants achieve full occupancy. Affordable Housing Act of 1990. Section who are low-income and near-elderly. Contact: Beverly J. Miller, Director, 891.410(c) limits occupancy to very The owner/managing agent aggressively Office of Asset Management, Office of low-income elderly persons. Section marketed the property with local Housing, Department of Housing and 891.205 defines elderly as ‘‘a household housing authorities, news media, Urban Development, 451 7th Street, composed of one or more persons at churches and various civic SW., Room 6160, Washington, DC least one of whom is 62 years of age or organizations. The property had 5 20410–8000, telephone number 202– more at the time of initial occupancy. vacant units and no waiting list. 708–3730. Granted by: Brian D. Montgomery, Providing for a waiver of this • Regulation: 24 CFR 891.410(c). Assistant Secretary for Housing-Federal requirement allowed the project to Project/Activity: Ovidio Lamoso Housing Commissioner. stabilize its current financial status and Coira, Ciales, Puerto Rico—FHA Project Date Granted: July 30, 2008. prevented foreclosure. Number 056–EE007. This property is Reason Waived: Waiver of this Contact: Beverly J. Miller, Director, located in a rural area, and is requirement allowed the owner/ Office of Asset Management, Office of experiencing problems in renting its managing agent flexibility in renting Housing, Department of Housing and vacant units. vacant units. Despite aggressive Urban Development, 451 7th Street, Nature of Requirement: Section outreach efforts, 4 units were vacant SW., Room 6160, Washington, DC 891.410 relates to admission of families because of insufficient demand to fill 20410–8000, telephone number 202– to projects for elderly or handicapped the units with very low-income elderly 708–3730. families that receive reservations under applicants. Granting this waiver allowed • Regulation: 24 CFR 891.410(c). Section 202 of the Housing Act of 1959, admission of low-income, near elderly Project/Activity: Pioneer Place IV, as amended by Section 801 of the applicants thereby stabilizing the Poynette, Wisconsin—FHA Project National Affordable Housing Act of project’s current financial status and Number 075–EE021. Pioneer Place is a 1990. Section 891.410(c) limits prevent foreclosure. Supportive Housing for the Elderly occupancy to very low-income elderly Contact: Beverly J. Miller, Director, project that is experiencing vacancy persons. Section 891.410 relates to Office of Asset Management, Office of problems. Waiver of the age and income admission of families to projects for Housing, Department of Housing and regulations is needed to improve elderly or handicapped families that Urban Development, 451 7th Street, occupancy and maintenance of the receive reservations under Section 202 SW., Room 6160, Washington, DC property. of the Housing Act of 1959, as amended 20410–8000, telephone number 202– Nature of Requirement: Section by Section 801 of the National 708–3730. 891.410 relates to admission of families Affordable Housing Act of 1990. Section • Regulation: 24 CFR 891.410(c). to projects for elderly or handicapped 891.410(c) limits occupancy to very Project/Activity: Doris Kohler Villa, families that receive reservations under low-income elderly persons. Section Phillips, Wisconsin—FHA Project Section 202 of the Housing Act of 1959, 891.205 defines elderly as ‘‘a household Number 075-EE102. The property is as amended by Section 801 of the composed of one or more persons at experiencing vacancy problems. The National Affordable Housing Act of least one of whom is 62 years of age or owner has requested waiver of the age 1990. Section 891.410(c) limits more at the time of initial occupancy.’’ and income requirement for this occupancy to very low-income elderly Granted by: Brian D. Montgomery, Supportive Housing for the Elderly persons. Section 891.410 relates to Assistant Secretary for Housing-Federal project. admission of families to projects for Housing Commissioner. Nature of Requirement: Section elderly or handicapped families that Date Granted: September 10, 2008. 891.410 relates to admission of families receive reservations under Section 202 Reason Waived: Waiver of the to projects for elderly or handicapped of the Housing Act of 1959, as amended regulation governing age and income families that receive reservations under by Section 801 of the National requirements was granted to alleviate Section 202 of the Housing Act of 1959, Affordable Housing Act of 1990. Section the vacancy problems existing at the as amended by Section 801 of the 891.410(c) limits occupancy to very property. The project is located in a National Affordable Housing Act of low-income elderly persons. Section rural area and is a high rise with 93 1990. Section 891.410(c) limits 891.205 defines elderly as ‘‘a household assisted units. Despite the owner’s

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marketing efforts, the level of occupancy Housing, Department of Housing and Nature of Requirement: Section remained problematic. There were 10 Urban Development, 451 7th Street, 891.410 relates to admission of families vacant units with no waiting list but the SW., Room 6160, Washington, DC to projects for elderly or handicapped owner qualified 15 low-income elderly 20410–8000, telephone number 202– families that receive reservations under families. This waiver allowed the 708–3730. Section 202 of the Housing Act of 1959, project to rent to those qualified • Regulation: 24 CFR 891.410(c). as amended by Section 801 of the families, remain viable and to achieve Project/Activity: Tom Woodman Villa, National Affordable Housing Act of full occupancy allowing the project to Richland Center, Wisconsin—FHA 1990. Section 891.410(c) limits operate successfully. Project Number 075–EE126. The project occupancy to very low-income elderly Contact: Beverly J. Miller, Director, is experiencing difficulty in maintaining persons. Section 891.410 relates to Office of Asset Management, Office of sustaining occupancy. admission of families to projects for Housing, Department of Housing and Nature of Requirement: Section elderly or handicapped families that Urban Development, 451 7th Street, 891.410 relates to admission of families receive reservations under Section 202 SW., Room 6160, Washington, DC to projects for elderly or handicapped of the Housing Act of 1959, as amended 20410–8000, telephone number 202– families that receive reservations under by Section 801 of the National 708–3730. Section 202 of the Housing Act of 1959, Affordable Housing Act of 1990. Section • Regulation: 24 CFR 891.410(c). as amended by Section 801 of the 891.410(c) limits occupancy to very Project/Activity: Joseph J. Vinopal National Affordable Housing Act of low-income elderly persons. Section Villa, Almena, Wisconsin—FHA Project 1990. Section 891.410(c) limits 891.205 defines elderly as ‘‘a household Number 075–EE041. The project is occupancy to very low-income elderly composed of one or more persons at experiencing difficulty leasing units to persons. Section 891.410 relates to least one of whom is 62 years of age or the very low-income elderly. The admission of families to projects for more at the time of initial occupancy.’’ project is located in a rural area with elderly or handicapped families that Granted by: Brian D. Montgomery, few conveniences for senior citizens. receive reservations under Section 202 Assistant Secretary for Housing-Federal Nature of Requirement: Section of the Housing Act of 1959, as amended Housing Commissioner. 891.410 relates to admission of families by Section 801 of the National Date Granted: September 25, 2008. to projects for elderly or handicapped Affordable Housing Act of 1990. Section Reason Waived: Waiver of the families that receive reservations under 891.410(c) limits occupancy to very regulations governing age and income Section 202 of the Housing Act of 1959, low-income elderly persons. Section requirements, to allow the admission of as amended by Section 801 of the 891.205 defines elderly as ‘‘a household near-elderly low-income persons, was National Affordable Housing Act of composed of one or more persons at granted to assist the project in obtaining 1990. Section 891.410(c) limits least one of whom is 62 years of age or full occupancy. The project is located in occupancy to very low-income elderly more at the time of initial occupancy.’’ a small rural community with a persons. Section 891.410 relates to Granted by: Brian D. Montgomery, population of 978. There is no grocery admission of families to projects for Assistant Secretary for Housing-Federal store or pharmacy so residents travel elderly or handicapped families that Housing Commissioner. approximately 15 miles to Shawnee, receive reservations under Section 202 Date Granted: September 25, 2008. Oklahoma, for basic needs. The of the Housing Act of 1959, as amended Reason Waived: Waiver of the management agent marketed the by Section 801 of the National regulations governing age and income property through advertising in Affordable Housing Act of 1990. Section requirements, to allow the admission of neighboring cities to no avail. The 891.410(c) limits occupancy to very near-elderly low-income persons, was property had four vacant units with two low-income elderly persons. Section granted to assist the project in reaching very low-income applicants on the 891.205 defines elderly as ‘‘a household full occupancy. The management agent waiting list. Granting this waiver composed of one or more persons at extensively marketed the property allowed the owner flexibility in renting least one of whom is 62 years of age or through advertising, open houses and vacant units and to achieve full more at the time of initial occupancy.’’ through various civic organizations. occupancy so the project would not fail. Granted by: Brian D. Montgomery, However, there was little demand for Contact: Beverly J. Miller, Director, Assistant Secretary for Housing-Federal these units, with only 5 of 19 units Office of Asset Management, Office of Housing Commissioner. being occupied since the property Housing, Department of Housing and Date Granted: September 25, 2008. opened in August 2007. The project Urban Development, 451 7th Street, Reason Waived: Waiver of the could not continue to operate at this SW., Room 6160, Washington, DC regulations governing age and income occupancy level. Providing this waiver 20410–8000, telephone number 202– requirements was granted to permit allowed the owner/managing agent to 708–3730. admission of low-income, near elderly stabilize the project’s current financial • Regulation: 24 CFR 891.410(c). applicants. The owner/managing agent status and prevented foreclosure. Project/Activity: Syringa Plaza, was unable to attract very low-income Contact: Beverly J. Miller, Director, Burley, Idaho—FHA Project Number elderly persons despite aggressive Office of Asset Management, Office of 124–EE005. The property is marketing efforts through the local Housing, Department of Housing and experiencing high vacancy rates. Housing Authority. The property Urban Development, 451 7th Street, Nature of Requirement: Section currently has 8 units with 2 vacancies. SW., Room 6160, Washington, DC 891.410 relates to admission of families There was insufficient demand to fill 20410–8000, telephone number 202– to projects for elderly or handicapped units with very low-income elderly 708–3730. families that receive reservations under applicants. This waiver allowed • Regulation: 24 CFR 891.410(c). Section 202 of the Housing Act of 1959, flexibility in renting units and allowed Project/Activity: Greenridge Place as amended by Section 801 of the the project to achieve full occupancy Apartments, Meeker, Oklahoma—FHA National Affordable Housing Act of and operate successfully. Project Number 117–EE023. The 1990. Section 891.410(c) limits Contact: Beverly J. Miller, Director, property was unable to maintain occupancy to very low-income elderly Office of Asset Management, Office of sustaining occupancy. persons. Section 891.410 relates to

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admission of families to projects for Granted by: Brian D. Montgomery, Granted by: Paula O. Blunt, General elderly or handicapped families that Assistant Secretary for Housing-Federal Deputy Assistant Secretary for Public receive reservations under Section 202 Housing Commissioner. and Indian Housing. of the Housing Act of 1959, as amended Date Granted: September 26, 2008. Date Granted: July 16, 2008. by Section 801 of the National Reason Waived: Waiver of the Reason Waived: The HA requested a Affordable Housing Act of 1990. Section regulations governing age and income waiver of its audited financial 891.410(c) limits occupancy to very requirements, to allow the admission of submission due date for the FYE low-income elderly persons. Section near-elderly low-income persons, was September 30, 2007. The HA submitted 891.205 defines elderly as ‘‘a household granted to assist the project in obtaining that one of the terms of the settlement composed of one or more persons at full occupancy. Despite aggressive agreement between the Department and least one of whom is 62 years of age or marketing efforts, the property the HA was that the FY 2006 audit be more at the time of initial occupancy.’’ continued to experience vacancy issues. re-performed. There had been a number Granted by: Brian D. Montgomery, The market analysis indicated there was of issues with the FY 2006 re-audits, Assistant Secretary for Housing-Federal insufficient demand to fill these units. which had only delayed the completion Housing Commissioner. Providing waiver of this regulation of the audit, but also delayed the Date Granted: September 25, 2008. assisted the owner/managing agent in completion of the FY 2007 audit. The Reason Waived: Waiver of the leasing vacant units and to achieve full waiver granted an extension to the audit regulations governing age and income occupancy so the project would not fail. deadline from June 30, 2008 to requirements, to allow the admission of Contact: Beverly J. Miller, Director, September 30, 2008. near-elderly low-income persons, was Office of Asset Management, Office of Contact: Myra E. Newbill, Program granted to assist the project in obtaining Housing, Department of Housing and Manager, NASS, Real Estate Assessment full occupancy. Syringa Plaza Urban Development, 451 7th Street, Center, Office of Public and Indian conducted extensive marketing SW., Room 6160, Washington, DC Housing, Department of Housing and outreach, including advertising, letters 20410–8000, telephone number 202– Urban Development, 550 12th Street, to churches, city officers, senior centers 708–3730. SW., Suite 100, Washington, DC 20410– • Regulation: 24 CFR 891.805. and the Chamber of Commerce and 5000, telephone number 202–475–8988. service area providers for seniors in the Project/Activity: Newport Senior • Regulation: 24 CFR 5.801 county to no avail. The property had 10 Housing, Newport, VT, Project Number: vacant units. Providing this waiver 024–EE101/VT36–S061–002. Project/Activity: Housing Authority of allowed the owner/managing agent to Nature of Requirement: Section the City of Tallassee, (AL172), Tallassee, stabilize the project’s current financial 891.805 requires that the general partner AL. status and prevented foreclosure. in the for-profit limitied partnership be Nature of Requirement: The Contact: Beverly J. Miller, Director, a Private Nonprofit Organization. regulation establishes certain reporting Granted by: Brian D. Montgomery, Office of Asset Management, Office of compliance dates. The audited financial Assistant Secretary for Housing-Federal Housing, Department of Housing and statements are required to be submitted Housing Commissioner. Urban Development, 451 7th Street, to the Real Estate Assessment Center Date Granted: July 8, 2008. (REAC) no later than nine months after SW., Room 6160, Washington, DC Reason Waived: The proposed sole 20410–8000, telephone number 202– the fiscal year end (FYE) of the housing nonprofit general partner of the for- authority (HA), in accordance with the 708–3730. profit mixed finance owner met the • Single Audit Act and OMB Circular A– Regulation: 24 CFR 891.410(c). statutory definition. 133. Project/Activity: Main Creek Villa, Contact: Willie Spearmon, Director, Granted by: Paula O. Blunt, General Conrath, Wisconsin—FHA Project Office of Housing Assistance and Grant Deputy Assistant Secretary for Public Number 075–EE071. The project is Administration, Office of Housing, and Indian Housing. experiencing difficulty leasing units to Department of Housing and Urban Date Granted: July 16, 2008. the very low-income elderly. The Development, 451 7th Street, SW., Reason Waived: The HA requested a project is located in a rural area. Room 6130, Washington, DC 20410– waiver of its audited financial Nature of Requirement: Section 8000, telephone number 202–798–3000. 891.410 relates to admission of families submission due date for FYE June 30, to projects for elderly or handicapped III. Regulatory Waivers Granted by the 2007. The HA submitted that its audited families that receive reservations under Office of Public and Indian Housing financial submission was twice rejected Section 202 of the Housing Act of 1959, For further information about the by REAC, and that the HA made the first as amended by Section 801 of the following regulatory waivers, please see correction and that the second rejection National Affordable Housing Act of the name of the contact person that e-mail was not received by the HA. 1990. Section 891.410(c) limits immediately follows the description of Consequently, the electronic submission occupancy to very low-income elderly the waiver granted. was not received by REAC by the resubmission due date that resulted in persons. Section 891.410 relates to • Regulation: 24 CFR 5.801 admission of families to projects for Project/Activity: Miami-Dade Housing the HA’s receiving a Late Presumptive elderly or handicapped families that Authority, (FL005), Miami, FL. Failure score of zero. The waiver receive reservations under Section 202 Nature of Requirement: Section 5.801 granted the additional time to submit its of the Housing Act of 1959, as amended of HUD’s regulations in 24 CFR part 5 audited financial data. by Section 801 of the National establishes certain reporting compliance Contact: Myra E. Newbill, Program Affordable Housing Act of 1990. Section dates. The audited financial statements Manager, NASS, Real Estate Assessment 891.410(c) limits occupancy to very are required to be submitted to the Real Center, Office of Public and Indian low-income elderly persons. Section Estate Assessment Center (REAC) no Housing, Department of Housing and 891.205 defines elderly as ‘‘a household later than nine months after the fiscal Urban Development, 550 12th Street, composed of one or more persons at year end (FYE) of the housing authority SW., Suite 100, Washington, DC 20410– least one of whom is 62 years of age or (HA), in accordance with the Single 5000, telephone number 202–475–8988. more at the time of initial occupancy. Audit Act and OMB Circular A–133. • Regulation: 24 CFR 5.801.

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Project/Activity: City of Platteville second rejection, corrections were statements are required to be submitted Housing Division, (WI208), Platteville, made, however, the HA failed to ‘‘click’’ to the Real Estate Assessment Center WI. the submit button. As a result, the (REAC) no later than nine months after Nature of Requirement: The submission was not electronically the fiscal year end (FYE) of the housing regulation establishes certain reporting submitted to the REAC by the authority (HA), in accordance with the compliance dates. The audited financial resubmission due date and the HA Single Audit Act and OMB Circular A– statements are required to be submitted received a Late Presumptive Failure 133. to the Real Estate Assessment Center (LPF) score of zero. The HA was granted Granted by: Paula O. Blunt, General (REAC) no later than nine months after a waiver of the resubmission due date. Deputy Assistant Secretary for Public the fiscal year end (FYE) of the housing Additionally, the REAC’s records and Indian Housing. authority (HA), in accordance with the indicate that the FY’s 2005 and 2006 Date Granted: August 6, 2008. Single Audit Act and OMB Circular A– audited financial submissions have not Reason Waived: The HA, a Section 8 133. been completed. The HA was advised to only entity, requested additional time to Granted by: Paula O. Blunt, General submit FYE 2005 and 2006 audited submit their FYE September 30, 2007, Deputy Assistant Secretary for Public financial information within 30 days of audited data. The HA submitted that it and Indian Housing. receipt of the waiver letter. recently discovered evidence of Date Granted: July 21, 2008. Contact: Myra E. Newbill, Program fraudulent activity by a former Reason Waived: The HA, a section 8 Manager, NASS, Real Estate Assessment employee that impacted the financial only entity, requested a waiver of the Center, Office of Public and Indian statements. The HA worked with local audited financial data reporting Housing, Department of Housing and law enforcement and HUD’s Office of requirements due date for FYE Urban Development, 550 12th Street, Inspector General to quantify the loss September 30, 2007. The HA submitted SW., Suite 100, Washington, DC 20410– and properly adjust the financial that the City of Platteville’s (Primary 5000, telephone number 202–475–8988. statements. The HA was granted a Government) FYE is December 31, 2007, • Regulation: 24 CFR 5.801. waiver that allowed it to submit the and the HA’s (Platteville Housing Project/Activity: Fort Stockton audited financial data as soon as the Division) FYE is September 30, 2007. Housing Authority, (TX500), Fort fraud investigation is completed. The different FYEs resulted in a Stockton, TX. Contact: Myra E. Newbill, Program difference between the audited due Nature of Requirement: The Manager, NASS, Real Estate Assessment dates. The waiver granted the HA to regulation establishes certain reporting Center, Office of Public and Indian submit the audited data as soon as it is compliance dates. The audited financial Housing, Department of Housing and completed by the City of Platteville’s statements are required to be submitted Urban Development, 550 12th Street, Independent Accountant but no later to the Real Estate Assessment Center SW., Suite 100, Washington, DC 20410– than September 30, 2008. The HA was (REAC) no later than nine months after 5000, telephone number 202–475–8988. advised to contact their field office to the fiscal year end (FYE) of the housing • Regulation: 24 CFR 5.801. change their FYE to coincide with the authority (HA), in accordance with the Project/Activity: Arizona Department FYE of the Primary Government (City of Single Audit Act and OMB Circular of Housing, (AZ901), Phoenix, AZ. Platteville). A–133. Nature of Requirement: The Contact: Myra E. Newbill, Program Granted by: Paula O. Blunt, General regulation establishes certain reporting Manager, NASS, Real Estate Assessment Deputy Assistant Secretary for Public compliance dates. The audited financial Center, Office of Public and Indian and Indian Housing. statements are required to be submitted Housing, Department of Housing and Date Granted: August 4, 2008. to the Real Estate Assessment Center Urban Development, 550 12th Street, Reason Waived: The HA, a section 8 (REAC) no later than nine months after SW., Suite 100, Washington, DC 20410– only entity, requested additional time to the fiscal year end (FYE) of the housing 5000, telephone number 202–475–8988. submit its FYE September 30, 2007, authority (HA), in accordance with the • Regulation: 24 CFR 5.801. audited financial submission. The HA Single Audit Act and OMB Circular A– Project /Activity: Housing Authority submitted that the City of Fort 133. of Travis County, (TX480), Austin, TX. Stockton’s (Primary Government) Granted by: Paula O. Blunt, General Nature of Requirement: The auditor resigned prior to the audit being Deputy Assistant Secretary for Public regulation establishes certain reporting completed. The city retained the and Indian Housing. compliance dates. The audited financial services of another firm. The HA was Date Granted: August 13, 2008. statements are required to be submitted granted the waiver and was required to Reason Waived: The HA requested to the Real Estate Assessment Center submit its audited financial date for FYE additional time to submit their FYE June (REAC) no later than nine months after September 30, 2007, as soon as it is 30, 2007, audit. Specifically, the HA the fiscal year end (FYE) of the housing completed by the City of Fort Stockton’s request dated April 25, 2008, was authority (HA), in accordance with the Independent Public Accountant. approved as a result of a Single Audit Single Audit Act and OMB Circular A– Contact: Myra E. Newbill, Program extension to June 30, 2008, from the 133. Manager, NASS, Real Estate Assessment United States Department of Health and Granted by: Paula O. Blunt, General Center, Office of Public and Indian Human Services, the cognizant audit Deputy Assistant Secretary for Public Housing, Department of Housing and agency for the State of Arizona. The and Indian Housing. Urban Development, 550 12th Street, State of Arizona subsequently received Date Granted: July 21, 2008. SW., Suite 100, Washington, DC 20410– another extension until August 31, Reason Waived: The HA requested a 5000, telephone number 202–475–8988. 2008, from the cognizant audit agency. waiver of its audited financial • Regulation: 24 CFR 5.801. The HA was granted the waiver to submission due date for FYE June 30, Project/Activity: Lancaster Housing submit its audited financial data for FYE 2007. The HA submitted that its audited Agency, (TX437), Lancaster, TX. June 30, 2007, by no later than financial submission was twice rejected Nature of Requirement: The September 12, 2008. by the REAC, and that the corrections regulation establishes certain reporting Contact: Myra E. Newbill, Program were made for the first rejection. For the compliance dates. The audited financial Manager, NASS, Real Estate Assessment

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Center, Office of Public and Indian 10, 2008, that resulted in damage to of decent, safe, sanitary, and in good Housing, Department of Housing and units, and unit doors and extensive repair. The Real Estate Assessment Urban Development, 550 12th Street, water damage. Because the Center (REAC) provides for an SW., Suite 100, Washington, DC 20410– circumstances surrounding the waiver independent physical inspection of a 5000, telephone number 202–475–8988. request were unusual and beyond the HA’s property of properties that • Regulation: 24 CFR 5.801. control of the HA, the HA was waived includes a statistically valid sample of Project/Activity: Rockville Center from PASS requirements for fiscal year the units. Management operations Housing Authority, (NY100), Rockville end December 31, 2007. certification is required to be submitted Center, NY. Contact: Myra E. Newbill, Program within two months after the public Nature of Requirement: The Manager, NASS, Real Estate Assessment housing agency fiscal year end. The regulation establishes certain reporting Center, Office of Public and Indian Resident Service and Satisfaction compliance dates. The audited financial Housing, Department of Housing and Indicator is performed through the use statements are required to be submitted Urban Development, 550 12th Street, of a survey. The HA is also responsible to the Real Estate Assessment Center SW., Suite 100, Washington, DC 20410– for completing the implementation plan (REAC) no later than nine months after 5000, telephone number 202–475–8988. activities and developing a follow-up the fiscal year end (FYE) of the housing • Regulation: 24 CFR 902.20 and 24 plan. authority (HA), in accordance with the CFR 902.60 (d) and (e) Granted by: Paula O. Blunt, General Single Audit Act and OMB Circular A– Project/Activity: Housing Authority of Deputy Assistant Secretary for Public 133. the City of Bay St. Louis, (MS064), Bay and Indian Housing. Granted by: Paula O. Blunt, General St. Louis, MS. Date Granted: September 26, 2008. Deputy Assistant Secretary for Public Nature of Requirement: The objective Reason Waived: The Delray Beach and Indian Housing. is to determine whether a housing Housing Authority (HA) requested and Date Granted: September 18, 2008. authority (HA) is meeting the standard was granted a waiver of the three Public Reason Waived: The HA submitted its of decent, safe, sanitary, and in good Housing Assessment System (PHAS) audited financial submission for FYE repair. The Real Estate Assessment Indicators for fiscal years ending March September 30, 2007, and it was rejected Center (REAC) provides for an 31, 2007, and March 31, 2008, because by REAC once on May 7, 2008, and independent physical inspection of a of the destruction caused by Hurricane again on May 29, 2008. The HA advised HA’s property of properties that Wilma in October 2005 to the Carver that the corrections were made on May includes a statistically valid sample of Estates development. The Carver Estates 13, 2008, for the first rejection and that the units. Management operations was the only development in the HA’s a minor rejection issue was overlooked certification is required to be submitted inventory and it has been vacant since and not corrected. The HA’s financial within two months after the public November 2005. The residents were submission was again rejected and the housing agency fiscal year end. The issued Tenant Protection Vouchers and HA failed to make the necessary Resident Service and Satisfaction were relocated in accordance with the correction by the due date. The HA Indicator is performed through the use Uniform Relocation Act. The units are received a Late Presumptive Failure of a survey. The HA is also responsible expected to be totally demolished. (LPF) score of zero. The waiver granted for completing the implementation plan Contact: Myra E. Newbill, Program the HA a request to invalidate the LPF activities and developing a follow-up Manager, NASS, Real Estate Assessment and resubmission of the audited plan. Center, Office of Public and Indian financial data. Granted by: Paula O. Blunt, General Housing, Department of Housing and Contact: Myra E. Newbill, Program Deputy Assistant Secretary for Public Urban Development, 550 12th Street, Manager, NASS, Real Estate Assessment and Indian Housing. SW., Suite 100, Washington, DC 20410– Center, Office of Public and Indian Date Granted: July 2, 2008. 5000, telephone number 202–475–8988. Housing, Department of Housing and Reason Waived: The Housing • Regulation: 24 CFR 902.23(a); 24 Urban Development, 550 12th Street, Authority of the City of Bay St. Louis CFR 902.43; and 24 CFR 902.52. SW., Suite 100, Washington, DC 20410– suffered catastrophic losses as a result of Project/Activity: Waveland Housing 5000, telephone number 202–475–8988. Hurricane Katrina resulting in 100% Authority, (MS101), Waveland, MS. • Regulation: 24 CFR 902.20 loss of its housing stock. The losses had Nature of Requirement: The Project/Activity: Housing Authority of a devastating effect on the stability of referenced regulations establish the City of Fort Lauderdale, (FL010), the HA. The circumstances surrounding requirements for (1) annual inspections Fort Lauderdale, FL. the waiver of these PHAS indicators for (2) annual certification of management Nature of Requirement: The objective fiscal year ending December 31, 2008, operations and (3) resident satisfaction of 24 CFR 902.20 is to determine were beyond the HA control. surveys. whether a housing authority (HA) is Contact: Myra E. Newbill, Program Granted by: Paula O. Blunt, General meeting the standard of decent, safe, Manager, NASS, Real Estate Assessment Deputy Assistant Secretary for Public sanitary, and in good repair. The Real Center, Office of Public and Indian and Indian Housing. Estate Assessment Center (REAC) Housing, Department of Housing and Date Granted: September 3, 2008. provides for an independent physical Urban Development, 550 12th Street, Reason Waived: The waiver exempted inspection of a HA’s property of SW., Suite 100, Washington, DC 20410– the HA from physical inspections and properties that includes a statistically 5000, telephone number 202–475–8988. submission of the management valid sample of the units. • Regulation: 24 CFR 902.20, and 24 operations certification and resident Granted by: Paula O. Blunt, General CFR 902.60(d) and (e). satisfaction survey under the Public Deputy Assistant Secretary for Public Project/Activity: Delray Beach Housing Assessment System (PHAS) for and Indian Housing. Housing Authority, (FL083), Delray fiscal year ending June 30, 2008, Date Granted: July 1, 2008. Beach, FL. because the HA suffered catastrophic Reason Waived: The HA was granted Nature of Requirement: The objective losses as result of Hurricane Katrina. a waiver of the physical inspection is to determine whether a housing The losses included 100% loss of because of a fire that occurred on March authority (HA) is meeting the standard housing stock. Further, the losses had a

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devastating effect on the stability of the Granted by: Paula O. Blunt, General of Housing and Urban Development, HA that precludes the HA from meeting Deputy Assistant Secretary for Public 451 7th Street, SW., Room 4130, the PHAS requirements. The and Indian Housing. Washington, DC 20140–5000, telephone circumstances surrounding the waiver Date Granted: July 15, 2008. number 202–402–4181. of these PHAS indicators were beyond Reason Waived: MCHA requested a • Regulation: 24 CFR the HA control. waiver of the applicable federal 941.606(n)(l)(ii)(B). Contact: Myra E. Newbill, Program regulation to the extent that HUD Project/Activity: Detroit Housing Manager, NASS, Real Estate Assessment determined that regulation prohibits Commission (DHC), MI, Gardenview Center, Office of Public and Indian MCHA from using homeownership Estates, Phase I Gardenview Estates Housing, Department of Housing and proceeds to acquire and renovate an HOPE VI. Urban Development, 550 12th Street, administrative office building. In its Nature of Requirement: Section SW., Suite 100, Washington, DC 20410– approved homeownership plan, MCHA 941.606(n)(1)(ii)(B) of HUD’s regulation 5000, telephone number 202–475–8988. did not include the purchase and in 24 CFR part 941 states ‘‘that if the • Regulation: 24 CFR 902.60(d) and renovation of an administrative office partner and/or owner entity (or any (e). building as a use of proceeds. HUD other entity with an identity of interests Project/Activity: West Palm Beach initially found that MCHA’s use of with such parties) wants to serve as the Housing Authority, (FL009), West Palm proceeds to purchase and renovate the general contractor for the project or Beach, FL. administrative office building was not a development, it may award itself the Nature of Requirement: The permissible use of proceeds under 24 construction contract only if it can Management operations certification is CFR 906.15. HUD subsequently demonstrate to HUD’s satisfaction that required to be submitted to the Real determined that good cause exists based its bid is the lowest bid submitted in Estate Assessment Center (REAC) within on accessibility, coordination of services response to a public request for bids.’’ two months after the public housing and cost savings to allow MCHA to use Granted by: Paula O. Blunt, General agency fiscal year end (FYE). The proceeds from its approved Deputy Assistant Secretary for Public Resident Service and Satisfaction homeownership plan to purchase, and Indian Housing. renovate, and now operate an Date Granted: September 11, 2008. Indicator is performed through the use Reason Waived: DHC procured of a survey. The Housing Authority administrative office building. Contact: Dominique Blom, Deputy Norstar Development USA to redevelop (HA) is also responsible for completing the former Herman Gardens public the implementation plan activities and Assistant Secretary for the Office of Public Housing Investments, Office of housing. On June 22, 2007, Norstar developing a follow-up plan. Building Corporation and O’Brien Granted by: Paula O. Blunt, General Public and Indian Housing, Department Construction Company, Inc. entered Deputy Assistant Secretary for Public of Housing and Urban Development, into a Cooperation Agreement. As and Indian Housing. 451 7th Street, SW., Room 4130, O’Brien Construction costs were within Date Granted: July 1, 2008. Washington, DC 20140–5000, telephone range of that of the independent cost Reason Waived: On July 26, 2007, the number 202–402–4181. estimates, HUD’s condition was West Palm Beach Housing Authority • Regulation: 24 CFR satisfied. received a waiver from submitting their 941.606(n)(1)(ii)(B). Contact: Dominique Blom, Deputy management operations certification Project/Activity: Housing Authority of Assistant Secretary for the Office of and resident satisfaction survey to the Fulton County’s (HAFC’s), Georgia, Public Housing Investments, Office of REAC for FYE March 31, 2007, in order Mixed-Finance Rental Project. Public and Indian Housing, Department to enable the HA to have more resources Nature of Requirement: Section of Housing and Urban Development, to concentrate on organizational, 941.606(n)(1)(ii)(B) of HUD’s regulation 451 7th Street, SW., Room 4130, procedural and software changes to in 24 CFR part 941 states ‘‘that if the Washington, DC 20140–5000, telephone convert to asset management. This partner and/or owner entity (or any number 202 402–4181. waiver granted an extension for FYE other entity with an identity of interests • Regulation: 24 CFR March 31, 2008. with such parties) wants to serve as the Contact: Gregory A. Byrne, Director, 941.606(n)(l)(ii)(B). general contractor for the project or Project/Activity: San Antonio Housing Financial Management Division, Real development, it may award itself the Authority (SAHA), TX, Victoria Courts, Estate Assessment Center, Office of construction contract only if it can City View Apartments, Phase IIIA. Public and Indian Housing, Department demonstrate to HUD’s satisfaction that HOPE VI grant: of Housing and Urban Development, its bid is the lowest bid submitted in Nature of Requirement: Section 550 12th Street, SW., Suite 100, response to a public request for bids.’’ 941.606(n)(1)(ii)(B) of HUD’s regulation Washington, DC 20410–5000, telephone Granted by: Paula O. Blunt, General in 24 CFR part 941 states ‘‘that if the number 202–475–8632. Deputy Assistant Secretary for Public partner and/or owner entity (or any • Regulation: 24 CFR 906.15 and Indian Housing other entity with an identity of interests Project/Activity: Montgomery County Date Granted: July 3, 2008. with such parties) wants to serve as the Housing Authority (MCHA), Reason Waived: HAFC submitted a general contractor for the project or Norristown, PA purchase and certification by an independent third- development, it may award itself the renovation of an administrative office party construction cost estimator and construction contract only if it can building using homeownership HUD reviewed the independent cost demonstrate to HUD’s satisfaction that proceeds. estimates and related budgets. HAFC its bid is the lowest bid submitted in Nature of Requirement: Section demonstrated that the construction costs response to a public request for bids.’’ 906.15 of HUD’s regulations in 24 CFR are reasonable and are within applicable Granted by: Paula O. Blunt, General part 906 provides that sales proceeds HUD cost limits. Assistant Deputy Secretary for Public may be used in connection with low- Contact: Dominique Blom, Deputy and Indian Housing. income families at the discretion of the Assistant Secretary for the Office of Date Granted: September 17, 2008. PHA and as stated in the HUD approved Public Housing Investments, Office of Reason Waived: The San Antonio homeownership plan. Public and Indian Housing, Department Housing Authority (SAHA) procured

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Carleton Development as the master CFR part 982 provides that HUD may Contact: Danielle Bastarache, developer for the City View Apartments consider and approve a PHA’s Director, Housing Voucher Management site. Carleton’s construction costs were establishment of a payment standard and Operations Division, Office of below independent cost estimates, lower than the basic range, but that Public Housing and Voucher Programs, satisfying HUD’s condition. HUD will not approve a lower payment Office of Public and Indian Housing, Contact: Dominique Blom, Deputy standard if the family share for more Department of Housing and Urban Assistant Secretary for the Office of than 40 percent of participants in the Development, 451 7th Street, SW., Public Housing Investments, Office of PHA’s HCV program exceeds 30 percent Room 4210, Washington, DC 20410– Public and Indian Housing, Department of adjusted monthly income. Section 5000, telephone number 202–708–0477. of Housing and Urban Development, 982.505(c)(3) provides that if the • Regulation: 24 CFR 982.505(c)(3). 451 7th Street, SW., Room 4130, amount on the payment standard (PS) Project/Activity: City of Virginia Washington, DC 20140–5000, telephone schedule is decreased during the term of Beach Department of Housing and number (202) 402–4181. the HAP contract, the lower PS amount Neighborhood Preservation (CVB), • Regulation: 24 CFR 982.503(d) and generally must be used to calculate the Virginia Beach, VA. The CVB requested 982.505(c)(3). monthly HAP for the family beginning a waiver of payment standard (PS) Project/Activity: Adams Metropolitan at the effective date of the family’s requirements. Housing Authority (AMHA), Adams, second regular reexamination following Nature of Requirement: Section OH. The AMHA requested a waiver of the effective date of the decrease. 982.505(c)(3) of HUD’s regulations in 24 payment standard (PS) requirements. Granted by: Paula O. Blunt, General CFR part 982 provides that if the Nature of Requirement: Section Deputy Assistant Secretary for Public amount on the PS schedule is decreased 982.503(d) of HUD regulations in 24 and Indian Housing. during the term of the HAP contract, the CFR part 982 provides that HUD may Date Granted: August 11, 2008. lower PS amount generally must be consider and approve a PHA’s Reason Waived: The waiver of these used to calculate the monthly HAP for establishment of a payment standard regulatory sections was granted because the family beginning at the effective lower than the basic range, but that these cost-saving measures enabled the date of the family’s second regular HUD will not approve a lower payment DCHA to both manage its Housing reexamination following the effective standard if the family share for more Choice Voucher program within date of the decrease. than 40 percent of participants in the allocated budget authority and avoid the Granted by: Paula O. Blunt, General PHA’s HCV program exceeds 30 percent termination of HAP contracts due to Deputy Assistant Secretary for Public of adjusted monthly income. Section insufficient funding. and Indian Housing. 982.505(c)(3) provides that if the Contact: Danielle Bastarache, Date Granted: July 11, 2008. amount on the payment standard (PS) Director, Housing Voucher Management Reason Waived: The waiver was schedule is decreased during the term of and Operations Division, Office of granted because this cost-saving the HAP contract, the lower PS amount Public Housing and Voucher Programs, measure would enable the CVB to both generally must be used to calculate the Office of Public and Indian Housing, manage its Housing Choice Voucher monthly HAP for the family beginning Department of Housing and Urban program within allocated budget at the effective date of the family’s Development, 451 7th Street, SW., authority and avoid the termination of second regular reexamination following Room 4210, Washington, DC 20410– HAP contracts due to insufficient the effective date of the decrease. 5000, telephone number 202–708–0477. Granted by: Paula O. Blunt, General funding. • Deputy Assistant Secretary for Public Regulation: 24 CFR 982.505(c)(3). Contact: Danielle Bastarache, and Indian Housing. Project/Activity: Wadena Housing and Director, Housing Voucher Management Date Granted: August 11, 2008. Redevelopment Authority (WHRA), and Operations Division, Office of Reason Waived: The waiver of these Wadena, MN. The WHRA requested a Public Housing and Voucher Programs, regulatory sections was granted because waiver of payment standard (PS) Office of Public and Indian Housing, these cost-saving measures enabled the requirements. Department of Housing and Urban AMHA to both manage its Housing Nature of Requirement: Section Development, 451 7th Street, SW., Choice Voucher program within 982.505(c)(3) of HUD’s regulations in 24 Room 4210, Washington, DC 20410– allocated budget authority and avoid the CFR part 982 provides that if the 5000, telephone number 202–708–0477. termination of HAP contracts due to amount on the PS schedule is decreased • Regulation: 24 CFR 982.505(c)(3). insufficient funding. during the term of the HAP contract, the Project/Activity: Shelby Metropolitan Contact: Danielle Bastarache, lower PS amount generally must be Housing Authority (SMHA), Shelby, Director, Housing Voucher Management used to calculate the monthly HAP for OH. The SMHA requested a waiver of and Operations Division, Office of the family beginning at the effective payment standard (PS) requirements. Public Housing and Voucher Programs, date of the family’s second regular Nature of Requirement: Section Office of Public and Indian Housing, reexamination following the effective 982.505(c)(3) of HUD’s regulations in 24 Department of Housing and Urban date of the decrease. CFR part 982 provides that if the Development, 451 7th Street, SW., Granted by: Paula O. Blunt, General amount on the PS schedule is decreased Room 4210, Washington, DC 20410– Deputy Assistant Secretary for Public during the term of the HAP contract, the 5000, telephone number 202–708–0477. and Indian Housing. lower PS amount generally must be • Regulation: 24 CFR 982.503(d) and Date Granted: July 3, 2008. used to calculate the monthly HAP for 982.505(c)(3). Reason Waived: The waiver was the family beginning at the effective Project Activity: Dodge County granted because this cost-saving date of the family’s second regular Housing Authority (DCHA), Dodge measure enabled the WHRA to both reexamination following the effective County, WI. The DCHA requested a manage its Housing Choice Voucher date of the decrease. waiver of payment standard (PS) program within allocated budget Granted by: Paula O. Blunt, General requirements. authority and avoid the termination of Deputy Assistant Secretary for Public Nature of Requirement: Section HAP contracts due to insufficient and Indian Housing. 982.503(d) of HUD regulations in 24 funding. Date Granted: July 14, 2008.

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Reason Waived: The waiver was date of the family’s second regular SHA requested a waiver regarding granted because this cost-saving reexamination following the effective exception payment standards. measure would enable the SMHA to date of the decrease. Nature of Requirement: Section both manage its Housing Choice Granted by: Paula O. Blunt, General 982.505(d) of HUD’s regulations in 24 Voucher program within allocated Deputy Assistant Secretary for Public CFR part 982 provides that a public budget authority and avoid the and Indian Housing. housing agency may only approve a termination of HAP contracts due to Date Granted: September 4, 2008. higher payment standard for a family as insufficient funding. Reason Waived: The waiver was a reasonable accommodation if the Contact: Danielle Bastarache, granted because this cost-saving higher payment standard is within the Director, Housing Voucher Management measure enabled the HACD to both basic range of 90 to 110 percent of the and Operations Division, Office of manage its Housing Choice Voucher fair market rent (FMR) for the unit size. Public Housing and Voucher Programs, program within allocated budget Granted by: Paula O. Blunt, General Office of Public and Indian Housing, authority and avoid the termination of Deputy Assistant Secretary for Public Department of Housing and Urban HAP contracts due to insufficient and Indian Housing. Development, 451 7th Street, SW., funding. Date Granted: July 21, 2008. Room 4210, Washington, DC 20410– Contact: Danielle Bastarache, Reason Waived: The waiver was 5000, telephone number 202–708–0477. Director, Housing Voucher Management granted because the applicant, who is a • and Operations Division, Office of person recovering from drug and Regulation: 24 CFR 982.505(c)(3). Public Housing and Voucher Programs, alcohol addiction, required a room in a Project/Activity: Todd County Office of Public and Indian Housing, supportive housing group home that Housing and Redevelopment Agency Department of Housing and Urban provided a clean and sober environment (TCHRA), Todd County, MN. The Development, 451 7th Street, SW., with supportive services. To provide a TCHRA requested a waiver of payment Room 4210, Washington, DC 20410– reasonable accommodation so that this standard (PS) requirements. 5000, telephone number 202–708–0477. Nature of Requirement: Section participant would pay no more than 40 • Regulation: 24 CFR 982.505(d). 982.505(c)(3) of HUD’s regulations in 24 percent of his adjusted income toward Project/Activity: Housing Authority of the family share, the SHA was allowed CFR part 982 provides that if the the County of Los Angeles (HACoLA), amount on the PS schedule is decreased to approve an exception payment Los Angeles County, CA. The HACoLA standard that exceeded the basic range during the term of the HAP contract, the requested a waiver regarding exception lower PS amount generally must be of 90 to 110 percent of the FMR. payment standards. Contact: Danielle Bastarache, used to calculate the monthly HAP for Nature of Requirement: Section Director, Housing Voucher Management the family beginning at the effective 982.505(d) of HUD’s regulations in 24 and Operations Division, Office of date of the family’s second regular CFR part 982 provides that a public Public Housing and Voucher Programs, reexamination following the effective housing agency may only approve a Office of Public and Indian Housing, date of the decrease. higher payment standard for a family as Department of Housing and Urban Granted by: Paula O. Blunt, General a reasonable accommodation if the Development, 451 7th Street, SW., Deputy Assistant Secretary for Public higher payment standard is within the Room 4210, Washington, DC 20410– and Indian Housing. basic range of 90 to 110 percent of the 5000, telephone number 202–708–0477. Date Granted: August 6, 2008. fair market rent (FMR) for the unit size. Reason Waived: The waiver was Granted by: Paula O. Blunt, General • Regulation: 24 CFR 982.505(d). granted because this cost-saving Deputy Assistant Secretary for Public Project/Activity: Housing Authority of measure enabled the TCHRA to both and Indian Housing. the City of Los Angeles (HACLA), Los manage its Housing Choice Voucher Date Granted: July 7, 2008. Angeles, CA. The HACLA requested a program within allocated budget Reason Waived: The waiver was waiver regarding exception payment authority and avoid the termination of granted because the applicant, who is a standards so that it could provide a HAP contracts due to insufficient person with severe depression and reasonable accommodation to persons funding. obsessive-compulsive disorder, needed with disabilities. Contact: Danielle Bastarache, to remain in her current unit to avoid Nature of Requirement: Section Director, Housing Voucher Management exacerbating her illnesses. To provide a 982.505(d) of HUD’s regulations in 24 and Operations Division, Office of reasonable accommodation so that this CFR part 982 provides that a public Public Housing and Voucher Programs, applicant would pay no more than 40 housing agency may only approve a Office of Public and Indian Housing, percent of his adjusted income toward higher payment standard for a family as Department of Housing and Urban the family share, the HACoLA was a reasonable accommodation if the Development, 451 7th Street, SW., allowed to approve an exception higher payment standard is within the Room 4210, Washington, DC 20410– payment standard that exceeded the basic range of 90 to 110 percent of the 5000, telephone number 202–708–0477. basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size. • Regulation: 24 CFR 982.505(c)(3). FMR. Granted by: Paula O. Blunt, General Project/Activity: Housing Authority of Contact: Danielle Bastarache, Deputy Assistant Secretary for Public the County of DeKalb (HACD), DeKalb, Director, Housing Voucher Management and Indian Housing. IL. The HACD requested a waiver of and Operations Division, Office of Date Granted: August 21, 2008. payment standard (PS) requirements. Public Housing and Voucher Programs, Reason Waived: The waiver was Nature of Requirement: Section Office of Public and Indian Housing, granted because the participant, who is 982.505(c)(3) of HUD’s regulations in 24 Department of Housing and Urban an elderly person with cardiovascular CFR part 982 provides that if the Development, 451 7th Street, SW., and vision disabilities, would have amount on the PS schedule is decreased Room 4210, Washington, DC 20410– significant hardship if required to move. during the term of the HAP contract, the 5000, telephone number 202–708–0477. She was paying approximately 85 lower PS amount generally must be • Regulation: 24 CFR 982.505(d). percent of the family’s adjusted income used to calculate the monthly HAP for Project/Activity: Stockbridge Housing toward her share of the rent as a result the family beginning at the effective Authority (SHA), Stockbridge, MA. The of a large rent increase. To provide a

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reasonable accommodation so that this CFR part 982 provides that a public would pay no more than 40 percent of participant would pay no more than 40 housing agency may only approve a her adjusted income toward the family percent of her adjusted income toward higher payment standard for a family as share, the HACLA was allowed to the family share, the HACLA was a reasonable accommodation if the approve an exception payment standard allowed to approve an exception higher payment standard is within the that exceeded the basic range of 90 to payment standard that exceeded the basic range of 90 to 110 percent of the 110 percent of the FMR. basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size. Contact: Danielle Bastarache, FMR. Granted by: Paula O. Blunt, General Director, Housing Voucher Management Contact: Danielle Bastarache, Deputy Assistant Secretary for Public and Operations Division, Office of Director, Housing Voucher Management and Indian Housing. Public Housing and Voucher Programs, and Operations Division, Office of Date Granted: August 21, 2008. Office of Public and Indian Housing, Public Housing and Voucher Programs, Reason Waived: The waiver was Department of Housing and Urban Office of Public and Indian Housing, granted because the participant, who is Development, 451 7th Street, SW., Department of Housing and Urban an elderly person with cardiovascular Room 4210, Washington, DC 20410– Development, 451 7th Street, SW., and vision disabilities, would have 5000, telephone number 202–708–0477. Room 4210, Washington, DC 20410– significant hardship if required to move. • Regulation: 24 CFR 982.505(d). 5000, telephone number 202–708–0477. She was paying approximately 85 Project/Activity: Housing Authority of • Regulation: 24 CFR 982.505(d). percent of the family’s adjusted income the County of Umatilla (HACU), Sioux Project/Activity: San Francisco toward her share of the rent as a result Falls Housing and Redevelopment Housing Authority (SFHA), San of a large rent increase. To provide a Commission (SFHRC), Umatilla County, Francisco, CA. The SFHA requested a reasonable accommodation so that this Oregon. The HACU requested a waiver waiver regarding exception payment participant would pay no more than 40 regarding exception payment standards. standards. percent of her adjusted income toward Nature of Requirement: Section Nature of Requirement: Section the family share, the HACLA was 982.505(d) of HUD’s regulations in 24 982.505(d) of HUD’s regulations in 24 allowed to approve an exception CFR part 982 provides that a public CFR part 982 provides that a public payment standard that exceeded the housing agency may only approve a housing agency may only approve a basic range of 90 to 110 percent of the higher payment standard for a family as higher payment standard for a family as FMR. a reasonable accommodation if the a reasonable accommodation if the Contact: Danielle Bastarache, higher payment standard is within the higher payment standard is within the Director, Housing Voucher Management basic range of 90 to 110 percent of the basic range of 90 to 110 percent of the and Operations Division, Office of fair market rent (FMR) for the unit size. fair market rent (FMR) for the unit size. Public Housing and Voucher Programs, Granted by: Paula O. Blunt, General Granted by: Paula O. Blunt, General Office of Public and Indian Housing, Deputy Assistant Secretary for Public Deputy Assistant Secretary for Public Department of Housing and Urban and Indian Housing. and Indian Housing. Date Granted: August 21, 2008. Development, 451 7th Street, SW., Date Granted: September 5, 2008. Reason Waived: The waiver was Room 4210, Washington, DC 20410– Reason Waived: The waiver was granted because the applicant is a 5000, telephone number 202–708–0477. granted because the applicant, who disabled person who required a • Regulation: 24 CFR 982.505(d). suffers from post traumatic stress wheelchair-accessible unit and after a Project/Activity: Housing Authority of disorder, needed to remain in his unit thorough housing search was only able the City of Los Angeles (HACLA), Los in order to avoid the stress of moving. to locate a unit that required an Angeles, CA. The HACLA requested a To provide a reasonable accommodation exception payment standard so that the waiver regarding exception payment so that this participant would pay no applicant would pay no more than 40 standards. more than 40 percent of his adjusted percent of her adjusted income toward Nature of Requirement: Section income toward the family share, the the family share. The SFHA was 982.505(d) of HUD’s regulations in 24 HACU was allowed to approve an allowed to approve an exception CFR part 982 provides that a public exception payment standard that payment standard that exceeded the housing agency may only approve a exceeded the basic range of 90 to 110 basic range of 90 to 110 percent of the higher payment standard for a family as percent of the FMR. FMR. a reasonable accommodation if the Contact: Danielle Bastarache, Contact: Danielle Bastarache, higher payment standard is within the Director, Housing Voucher Management Director, Housing Voucher Management basic range of 90 to 110 percent of the and Operations Division, Office of and Operations Division, Office of fair market rent (FMR) for the unit size. Public Housing and Voucher Programs, Public Housing and Voucher Programs, Granted by: Paula O. Blunt, General Office of Public and Indian Housing, Office of Public and Indian Housing, Deputy Assistant Secretary for Public Department of Housing and Urban Department of Housing and Urban and Indian Housing. Development, 451 7th Street, SW., Development, 451 7th Street, SW., Date Granted: August 26, 2008. Room 4210, Washington, DC 20410– Room 4210, Washington, DC 20410– Reason Waived: The waiver was 5000, telephone number 202–708–0477. 5000, telephone number 202–708–0477. granted because the participant, who is • Regulation: 24 CFR 982.505(d). • Regulation: 24 CFR 982.505(d). an elderly person with multiple medical Project/Activity: Alaska Housing Project/Activity: Housing Authority of problems, needed to remain in her Finance Corporation (AHFC), the City of Los Angeles (HACLA), Los current unit to be near her physician Anchorage, AK. The AHFC requested a Angeles, CA. The HACLA requested a and due to the stress that moving to waiver regarding exception payment waiver regarding exception payment another unit would present. She was standards. standards so that it could provide a also paying approximately 75 percent of Nature of Requirement: Section reasonable accommodation to persons the family’s adjusted income toward her 982.505(d) of HUD’s regulations in 24 with disabilities. share of the rent as a result of a large CFR part 982 provides that a public Nature of Requirement: Section rent increase. To provide a reasonable housing agency may only approve a 982.505(d) of HUD’s regulations in 24 accommodation so that this participant higher payment standard for a family as

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a reasonable accommodation if the and Operations Division, Office of disabled person who required a single- higher payment standard is within the Public Housing and Voucher Programs, family home that required an exception basic range of 90 to 110 percent of the Office of Public and Indian Housing, payment standard so that the she would fair market rent (FMR) for the unit size. Department of Housing and Urban pay no more than 40 percent of her Granted by: Paula O. Blunt, General Development, 451 7th Street, SW., adjusted income toward the family Deputy Assistant Secretary for Public Room 4210, Washington, DC 20410– share. The FRHA was allowed to and Indian Housing. 5000, telephone number 202–708–0477. approve an exception payment standard Date Granted: September 8, 2008. • Regulation: 24 CFR 982.505(d). that exceeded the basic range of 90 to Reason Waived: The waiver was Project/Activity: Alaska Housing 110 percent of the FMR. granted because the participant, who is Finance Corporation (AHFC), Kodiak Contact: Danielle Bastarache, a disabled person with multiple Island, AK. The AHFC requested a Director, Housing Voucher Management chemical sensitivity syndrome, needs to waiver regarding exception payment and Operations Division, Office of remain in her current unit which is a standards. Public Housing and Voucher Programs, two-bedroom house with private Nature of Requirement: Section Office of Public and Indian Housing, laundry facilities. The participant was 982.505(d) of HUD’s regulations in 24 Department of Housing and Urban paying approximately 57 percent of the CFR part 982 provides that a public Development, 451 7th Street, SW., family’s adjusted income toward her housing agency may only approve a Room 4210, Washington, DC 20410– share of the rent. To provide a higher payment standard for a family as 5000, telephone number 202–708–0477. reasonable accommodation so that this • a reasonable accommodation if the Regulation: 24 CFR 982.505(d). participant would pay no more than 40 higher payment standard is within the Project/Activity: Housing Authority of percent of her adjusted income toward basic range of 90 to 110 percent of the the City of Los Angeles (HACLA), Los the family share, the AHFC was allowed fair market rent (FMR) for the unit size. Angeles, CA. The HACLA requested a to approve an exception payment Granted by: Paula O. Blunt, General waiver regarding exception payment standard that exceeded the basic range Deputy Assistant Secretary for Public standards. of 90 to 110 percent of the FMR. Nature of Requirement: Section Contact: Danielle Bastarache, and Indian Housing. Date Granted: September 11, 2008. 982.505(d) of HUD’s regulations in 24 Director, Housing Voucher Management Reason Waived: The waiver was CFR part 982 provides that a public and Operations Division, Office of granted because the applicant is a housing agency may only approve a Public Housing and Voucher Programs, disabled person requiring a wheelchair- higher payment standard for a family as Office of Public and Indian Housing, a reasonable accommodation if the accessible unit close to family. A Department of Housing and Urban higher payment standard is within the thorough housing search located a unit Development, 451 7th Street, SW., basic range of 90 to 110 percent of the that required an exception payment Room 4210, Washington, DC 20410– fair market rent (FMR) for the unit size. standard so that the applicant would 5000, telephone number 202–708–0477. Granted by: Paula O. Blunt, General • pay no more than 40 percent of adjusted Deputy Assistant Secretary for Public Regulation: 24 CFR 982.505(d). income toward the family share. The Project/Activity: Sioux Falls Housing and Indian Housing. AHFC was allowed to approve an and Redevelopment Commission Date Granted: September 11, 2008. exception payment standard that (SFHRC), Sioux Falls, South Dakota. Reason Waived: The waiver was exceeded the basic range of 90 to 110 The SRHRC requested a waiver granted because the participant, who is percent of the FMR. regarding exception payment standards. an elderly person with multiple Contact: Danielle Bastarache, Nature of Requirement: Section significant medical problems and needs Director, Housing Voucher Management 982.505(d) of HUD’s regulations in 24 to remain near her various physicians and Operations Division, Office of CFR part 982 provides that a public and hospital, was paying approximately Public Housing and Voucher Programs, housing agency may only approve a 96 percent of the family’s adjusted Office of Public and Indian Housing, higher payment standard for a family as income toward her share of the rent as Department of Housing and Urban a reasonable accommodation if the a result of a large rent increase. To Development, 451 7th Street, SW., higher payment standard is within the provide a reasonable accommodation so Room 4210, Washington, DC 20410– basic range of 90 to 110 percent of the that this participant would pay no more 5000, telephone number 202–708–0477. fair market rent (FMR) for the unit size. than 40 percent of her adjusted income Granted by: Paula O. Blunt, General • Regulation: 24 CFR 982.505(d). toward the family share, the HACLA Deputy Assistant Secretary for Public Project/Activity: Fall River Housing was allowed to approve an exception and Indian Housing. Authority (FRHA), Fall River, MA. The payment standard that exceeded the Date Granted: September 9, 2008. FRHA requested a waiver regarding basic range of 90 to 110 percent of the Reason Waived: The waiver was exception payment standards. FMR. granted because the participant is a Nature of Requirement: Section Contact: Danielle Bastarache, disabled person who required a 982.505(d) of HUD’s regulations in 24 Director, Housing Voucher Management wheelchair-accessible unit that is in CFR part 982 provides that a public and Operations Division, Office of close proximity to the medical facility housing agency may only approve a Public Housing and Voucher Programs, where she receives care. To provide a higher payment standard for a family as Office of Public and Indian Housing, reasonable accommodation so that this a reasonable accommodation if the Department of Housing and Urban participant would pay no more than 40 higher payment standard is within the Development, 451 7th Street, SW., percent of her adjusted income toward basic range of 90 to 110 percent of the Room 4210, Washington, DC 20410– the family share, the SFHRC was fair market rent (FMR) for the unit size. 5000, telephone number 202–708–0477. allowed to approve an exception Granted by: Paula O. Blunt, General • Regulation: 24 CFR 982.505(c)(3). payment standard that exceeded the Deputy Assistant Secretary for Public Project/Activity: Fort Walton Beach basic range of 90 to 110 percent of the and Indian Housing. Housing Authority (FWBHA), Fort FMR. Date Granted: September 11, 2008. Walton Beach, FL. The FWBHA Contact: Danielle Bastarache, Reason Waived: The waiver was requested a waiver of payment standard Director, Housing Voucher Management granted because the applicant is a (PS) requirements.

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Nature of Requirement: Section made under the HOPE I grant to allow Granted by: Paula O. Blunt, General 982.505(d) of HUD’s regulations in 24 these remaining members of tenant Deputy Assistant Secretary for Public CFR part 982 provides that a public families to remain in the project. and Indian housing. housing agency may only approve a Contact: Danielle Bastarache, Date Granted: July 31, 2008. higher payment standard for a family as Director, Housing Voucher Management Reason Waived: The LHAND is a reasonable accommodation if the and Operations Division, Office of undertaking an energy project and higher payment standard is within the Public Housing and Voucher Programs, anticipates energy conservation basic range of 90 to 110 percent of the Office of Public and Indian Housing, measures whose life cycle expectations fair market rent (FMR) for the unit size. Department of Housing and Urban and costs will exceed the 12-year Granted by: Paula O. Blunt, General Development, 451 7th Street, SW., regulatory limitation in 24 CFR Deputy Assistant Secretary for Public Room 4210, Washington, DC 20410– 990.185(a). Based upon the anticipated and Indian Housing. 5000, telephone number 202–708–0477. savings and benefits to LHAND and its Date Granted: September 25, 2008. • Regulation: 24 CFR 990.185(a). residents, the waiver grants a longer payback period, contingent on HUD’s Reason Waived: The waiver was Project/Activity: Washington County provisions, including additional granted because this cost-saving Housing Authority (WCHA), information and technical activity measure enabled the FWBHA to both Washington County, Pennsylvania. manage its Housing Choice Voucher requirements. LHAND must comply Nature of Requirement: The Energy program within allocated budget with all of HUD’s provisions for the Policy Act of 2005 amended section authority and avoid the termination of waiver to be effective. 9(e)(2)(C) of the Housing Act of 1937 by HAP contracts due to insufficient Contact: Nicole Faison, Director, changing the contract period from 12 to funding. Office of Public Housing Programs, 20 years. At the time of the request for Contact: Danielle Bastarache, Director, Office of Public and Indian Housing, a waiver, HUD’s regulation in 24 CFR Housing Voucher Management and Department of Housing and Urban 990.185(a) had not yet been amended to Operations Division, Office of Public Development, 451 7th Street, SW., conform to the statutory change and Housing and Voucher Programs, Office Room 4226, Washington, DC 20410– continued to present a maximum period of Public and Indian Housing, 5000, telephone number 202–708–0744 of 12 years. Department of Housing and Urban • Regulation: 24 CFR 990.185(a). Development, 451 7th Street, SW., Granted by: Paula O. Blunt, General Project/Activity: Kingsport Housing Room 4210, Washington, DC 20410– Deputy Assistant Secretary for Public and Redevelopment Authority, (KHRA) 5000, telephone number 202–708–0477. and Indian Housing. Kingsport, Tennessee. Date Granted: July 7, 2008. • Regulation: 24 CFR 983.53(c) and Nature of Requirement: The Energy Reason Waived: The WCHA was 983.259(a). Policy Act of 2005 amended section undertaking an energy project and Project/Activity: St. Louis Housing 9(e)(2)(C) of the Housing Act of 1937 by anticipated energy conservation Authority (SLHA). St. Louis, MO. The changing the contract period from 12 to measures whose life cycle expectations SLHA requested waivers of project- 20 years. At the time of the request for and costs would exceed the 12-year based voucher (PBV) regulations to a waiver, HUD’s regulation in 24 CFR regulatory limitation in 24 CFR allow members of the Carr Square 990.185(a) had not yet been amended to 990.185(a). Based upon the anticipated Tenant Management Corporation conform to the statutory change and savings and benefits to WCHA and its (CSTMC) to remain in their former continued to present a maximum period residents, the waiver granted a longer public housing units. of 12 years. payback period, contingent on HUD’s Nature of Requirement: Section Granted by: Paula O. Blunt, General provisions, including additional 983.53(c) of HUD’s regulations in 24 Deputy Assistant Secretary for Public information and technical activity CFR part 983 provides that the PHA and Indian Housing. requirements. WCHA agreed to comply may not attach or pay PBV assistance for Date Granted: September 5, 2008. with all of HUD’s provisions for the a unit occupied by an owner of the Reason Waived: The KHRA was waiver to be effective. housing. Section 983.259(a) generally undertaking an energy project and states that families must be terminated Contact: Nicole Faison, Director, anticipated energy conservation if they occupy overcrowded, under- Office of Public Housing Programs, measures whose life cycle expectations occupied or accessible units and don’t Office of Public and Indian Housing, and costs will exceed the 12-year accept the public housing agency’s offer Department of Housing and Urban regulatory limitation in 24 CFR of continued housing assistance (e.g., Development, 451 7th Street, SW., 990.185(a). Based upon the anticipated tenant-based voucher assistance). Room 4226, Washington, DC 20410– savings and benefits to KHRA and its Granted by: Paula O. Blunt, General 5000, telephone number 202–708–0744. residents, the waiver granted a longer Deputy Assistant Secretary for Public • Regulation: 24 CFR 990.185(a). payback period, contingent on HUD’s and Indian Housing. Project/Activity: Lynn Housing provisions, including additional Date Granted: August 13, 2008. Authority and Neighborhood information and technical activity Reasons Waived: A waiver of the first Development (LHAND), Lynn, requirements. KHRA agreed to comply regulation was granted since the CSTMC Massachusetts. with all of HUD’s provisions for the is a 501(c)(3) non-profit entity and none Nature of Requirement: The Energy waiver to be effective. of the individual members of the Policy Act of 2005 amended section Contact: Nicole Faison, Director, CSTMC (who are considered principals 9(e)(2)(C) of the Housing Act of 1937 by Office of Public Housing Programs, and/or interested parties) will have any changing the contract period from 12 to Office of Public and Indian Housing, ownership interest in the PBV units. 20 years. At the time of the request for Department of Housing and Urban The second regulation was also waived a waiver, HUD’s regulation in 24 CFR Development, 451 7th Street, SW., since many of the residents aged in 990.185(a) had not yet been amended to Room 4226, Washington, DC 20410– place and appropriate-sized units were conform to the statutory change and 5000, telephone number 202–708–0744. not available in the project for some of continued to present a maximum period [FR Doc. E8–29308 Filed 12–11–08; 8:45 am] them. In addition, commitments were of 12 years. BILLING CODE 4210–67–P

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DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: • E-mail: Paula L. Hart, Acting Director, Office of [email protected]. Bureau of Indian Affairs Indian Gaming, Office of the Deputy • Fax: 575–525–4412, Attention: Assistant Secretary—Policy and Jennifer Montoya. Indian Gaming Economic Development, Washington, • Mail or personal delivery: District Manager, BLM Las Cruces District AGENCY: Bureau of Indian Affairs, DC 20240, (202) 219–4066. Office, 1800 Marquess Street, Las Interior. SUPPLEMENTARY INFORMATION: Under Section 11 of the Indian Gaming Cruces, NM 88005. ACTION: Notice of Approved Tribal-State Documents pertinent to this proposal Gaming Compact Amendment. Regulatory Act of 1988 (IGRA), Public Law 100–497, 25 U.S.C. 2710, the may be examined at the Las Cruces District Office at the above address. SUMMARY: This notice publishes an Secretary of the Interior shall publish in FOR FURTHER INFORMATION CONTACT: Approval of the Third Amendment to the Federal Register notice of approved Jennifer Montoya, Planning and the Wisconsin Winnebago Tribe, now Tribal-State compacts for the purpose of Environmental Coordinator, at the Las known as the Ho-Chunk Nation and the engaging in Class III gaming activities Cruces District Office; Telephone 575– State of Wisconsin Gaming Compact. on Indian lands. This Amendment reduces the number of gaming 525–4316; or e-mail at DATES: Effective Date: December 12, [email protected]. 2008. establishments the Tribe may operate; increases the number of gaming SUPPLEMENTARY INFORMATION: This FOR FURTHER INFORMATION CONTACT: machines; and extends the term of the document provides notice that the BLM Paula L. Hart, Acting Director, Office of Compact to December 31, 2029. This Las Cruces District Office, Las Cruces, Indian Gaming, Office of the Deputy Amendment is considered to have been New Mexico, intends to prepare an Assistant Secretary—Policy and approved but only to the extent that the RMPA with an associated EA for the Economic Development, Washington, Amendment is consistent with the Mimbres Planning Area and announces DC 20240, (202) 219–4066. provisions of the Indian Gaming the beginning of the scoping process SUPPLEMENTARY INFORMATION: Under Regulatory Act. and seeks public input on issues and Section 11 of the Indian Gaming Dated: November 28, 2008. planning criteria. The BLM is currently considering Regulatory Act of 1988 (IGRA), Public George T. Skibine, Law 100–497, 25 U.S.C. 2710, the disposal of public lands in Grant Acting Deputy Assistant Secretary for Policy County, New Mexico, and the exact Secretary of the Interior shall publish in and Economic Development. acreage and legal descriptions will be the Federal Register notice of approved [FR Doc. E8–29500 Filed 12–11–08; 8:45 am] Tribal-State compacts for the purpose of determined by a Cadastral survey. The engaging in Class III gaming activities BILLING CODE 4310–4N–P public lands proposed for disposal are on Indian lands. This Amendment currently identified for retention in Federal ownership in the 1993 Mimbres modifies the existing arbitration DEPARTMENT OF THE INTERIOR provision by requiring that the parties RMP. Therefore, the RMP must be utilize a last best offer format; Bureau of Land Management amended to identify the public lands as establishes a term of twenty-five years; suitable for exchange and/or sale. These provides for the renegotiation of the [LLNML00000 L16100000.DP0000] public lands are a portion of and within revenue sharing and allows both parties the following areas: to propose amendments to the Compact Notice of Intent To Prepare an New Mexico Principal Meridian every five years. Amendment to the Mimbres Resource T. 17 S., R. 12 W., Dated: November 28, 2008. Management Plan (RMPA), and Secs. 3, 4, 9, 10, 15, 16, 20, 24 and 31. Associated Environmental George T. Skibine, T. 17 S., R. 11 W., Assessment (EA), Las Cruces District Secs. 19 and 20. Acting Deputy Assistant Secretary for Policy Office, New Mexico and Economic Development. T. 19 S., R. 15 W., Secs. 8, 16, 17, 21, 27 and 28. [FR Doc. E8–29420 Filed 12–11–08; 8:45 am] AGENCY: Bureau of Land Management BILLING CODE 4310–4N–P (BLM), Interior. The purpose of the public scoping process is to determine relevant issues ACTION: Notice of intent. that will influence the scope of the DEPARTMENT OF THE INTERIOR SUMMARY: The BLM Las Cruces District environmental analysis, including Office, New Mexico, intends to prepare alternatives, and guide the planning Bureau of Indian Affairs an RMPA with an associated EA to process. Preliminary issues for the analyze the possible disposal by either planning area have been identified by Indian Gaming exchange or sale, of BLM-administered the BLM personnel, other agencies, and AGENCY: Bureau of Indian Affairs, public lands in Grant County in in meetings with individuals and user Interior. southwestern New Mexico. groups. These issues are: 1. Should public lands adjacent to the DATES: This Notice initiates the 30-day ACTION: Notice of Tribal-State Class III Gila National Forest be identified for public scoping period to identify Gaming Compact Amendment taking disposal? If so, which public lands? effect. relevant issues. The scoping period will 2. What potential impacts would this also be announced through local news proposed action have on the Gila SUMMARY: This notice publishes the media and on the BLM Web site National Forest? Amendment to the Tribal-State Gaming (http://www.blm.gov/nm). The BLM will 3. What effects would this proposed Compact between the State of California accept scoping comments for 30 days action have on mining in the area? and the Shingle Springs Band of Miwok from the date of the publication of this Proposed planning criteria include Indians taking effect. Notice. the following: DATES: Effective Date: December 12, ADDRESSES: You may submit comments 1. The RMPA/EA process will be in 2008. by any of the following methods: compliance with the Federal Land

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Policy and Management Act, the issue was placed in category two or Administrative details (reviewing the National Environmental Policy Act, and three. The public is also encouraged to council’s charter, a briefing about the applicable laws, regulations, and help identify any management questions consensus process, the council’s 2009 policies. and concerns that should be addressed work plan, roles and responsibilities 2. The land use plan amendment in the plan amendment. and the council’s expectations); process will be governed by the The BLM will work collaboratively Russian olive reduction efforts along the planning regulations at 43 CFR 1610 with interested parties to identify the Upper Missouri River; and the BLM Land Use Planning management decisions that are best Field manager updates; Handbook H–1601–1. suited to local, regional, and national A review of BLM livestock grazing 3. Lands affected by the proposed needs and concerns. The BLM will use regulations; plan amendment only apply to public an interdisciplinary approach to A presentation from the Ranchers surface and mineral estate managed by develop the plan amendment in order to Stewardship Alliance; the BLM. No decisions will be made consider the variety of resource issues A discussion of riparian information; relative to non-BLM-administered lands and concerns identified. Specialists A report about the Limekiln Ruby or non-Federal minerals. with expertise in the following Timber Blow-down; 4. Public participation will be an disciplines will be involved in the A discussion of U.S. Forest Service fee integral part of the planning process. planning process: minerals and geology, proposals; 5. The plan amendment will outdoor recreation, archaeology, A presentation by the American Prairie recognize all valid existing rights. paleontology, wildlife and fisheries, Foundation; and administrative 6. The RMPA/EA will strive to be lands and realty, hydrology, soils, water details (next meeting agenda, location, consistent with existing non-Federal and air. etc.). plans and policies, provided the All RAC meetings are open to the decisions in the existing plans are Linda S.C. Rundell, public. The public may present written consistent with the purposes, policies, State Director. comments to the RAC. Each formal RAC and programs of the BLM and other [FR Doc. E8–29443 Filed 12–11–08; 8:45 am] meeting will also have time allocated for Federal laws. The RMPA will consider BILLING CODE 4310–VC–P hearing public comments. Depending on present and potential uses of public the number of persons wishing to lands. comment and time available, the time 7. The RMPA will consider impacts of DEPARTMENT OF THE INTERIOR for individual oral comments may be uses on adjacent or nearby non-Federal limited. lands and on non-Federal land surface Bureau of Land Management over Federally-owned minerals. FOR FURTHER INFORMATON CONTACT: Gary The public may submit comments on [MT–060–01–1020–PG] L. ‘‘Stan’’ Benes, Lewistown Field issues and planning criteria in writing Manager, Lewistown Field Office, P.O. directly to the BLM using one of the Notice of Public Meeting; Central Box 1160, Lewistown, Montana 59457, methods listed in the ADDRESSES section Montana Resource Advisory Council 406/538–1900. above. Comments should be submitted AGENCY: Bureau of Land Management, Dated: December 5, 2008. within 30 days from the date of the Interior. Gary L. ‘‘Stan’’ Benes, publication of this Notice. Before ACTION: Notice of public meeting. Lewistown Field Manager. including your address, phone number, [FR Doc. E8–29417 Filed 12–11–08; 8:45 am] e-mail address, or other personal SUMMARY: In accordance with the BILLING CODE 4310–$$–P identifying information in your Federal Land Policy and Management comment, you should be aware that Act and the Federal Advisory your entire comment—including your Committee Act of 1972, the U.S. DEPARTMENT OF THE INTERIOR personal identifying information—may Department of the Interior, Bureau of be made publicly available at any time. Land Management (BLM) Central National Park Service While you can ask us in your comment Montana Resource Advisory Council Notice of Continuation of Visitor to withhold your personal identifying (RAC) will meet as indicated below. information from public review, we Services DATES: The meeting will be held January cannot guarantee that we will be able to 14 & 15, 2009. AGENCY: National Park Service, Interior. do so. All submissions from The meetings will be in the First State ACTION: Public notice. organizations or businesses, and from Bank of Malta conference room, 1 South individuals identifying themselves as 1st Street East, in Malta, Montana. DATES: Effective Date: January 1, 2009. representatives or officials of The January 14 meeting will begin at FOR FURTHER INFORMATION CONTACT: organizations or businesses, are Jo 10 a.m. with a 30-minute public available for public inspection in their A. Pendry, Concession Program comment period and will adjourn at 5 entirety. Manager, National Park Service, The BLM will evaluate identified p.m. Washington, DC 20240, Telephone, 202/ issues to be addressed in the plan The January 15 meeting will begin at 513–7156. amendment and will place them into 8 a.m. with a 30-minute public SUMMARY: Pursuant to the terms of one of three categories: comment period and will adjourn at 3 existing concession contracts, public 1. Issues to be resolved in the plan p.m. notice is hereby given that the National amendment; SUPPLEMENTARY INFORMATION: This 15- Park Service intends to request a 2. Issues to be resolved through policy member council advises the Secretary of continuation of visitor services for a or administrative action; or the Interior on a variety of management period not-to-exceed 1 year from the 3. Issues beyond the scope of this plan issues associated with public land date of contract expiration. amendment. management in Montana. During these SUPPLEMENTARY INFORMATION: The The BLM will provide an explanation meetings the council will participate in/ contracts listed below have been in the plan amendment as to why an discuss/act upon: extended to maximum allowable under

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36 CFR 51.23. Under the provisions of Service authorizes continuation of operations does not affect any rights current concession contracts and visitor services for a period not-to- with respect to selection for award of a pending the completion of the public exceed 1 year under the terms and new concession contract. solicitation of a prospectus for a new conditions of the current contract as concession contract, the National Park amended. The continuation of

Conc ID No. Concessioner name Park

GWMP00–03 ...... Belle Haven Marina, Inc ...... George Washington Memorial Park- way. FOMC001–96 ...... Evelyn Hill Corporation ...... Fort McHenry National Monument and Historic Shrine. STLI003–89 ...... ARAMARK Sports & Entertainment Services, Inc ...... Statue of Liberty National Monument. INDE001–94 ...... Concepts by Staid, Ltd...... Independence National Historical Park. SHEN001–85 ...... ARAMARK Sports & Entertainment Services, Inc ...... Shenandoah National Park. STLI002–88 ...... Evelyn Hill, Inc ...... Statue of Liberty National Monument. CHIS003–98 ...... Truth Aquatics ...... Channel Islands National Park. DEVA001–84 ...... Xanterra Parks & Resorts, Inc ...... Death Valley National Monument. DEVA002–81 ...... Xanterra Parks & Resorts, Inc ...... Death Valley National Monument. GOGA008–88 ...... Demosthemes Hontalas, Thomas Hontalas & William Hontalas ...... Golden Gate National Recreation Area. LAME001–73 ...... Rex G. Maughan & Ruth G. Maughan ...... Lake Mead National Recreation Area. LAME002–82 ...... Lake Mead RV Village, LLC ...... Lake Mead National Recreation Area. LAME005–97 ...... Rex G. Maughan ...... Lake Mead National Recreation Area. LAME006–74 ...... Las Vegas Boat Harbor, Inc ...... Lake Mead National Recreation Area. LAME007–84 ...... Seven Resorts, Inc ...... Lake Mead National Recreation Area. LAME009–88 ...... Seven Resorts, Inc ...... Lake Mead National Recreation Area. LAME010–71 ...... Seven Resorts, Inc ...... Lake Mead National Recreation Area. LAVO001–82 ...... California Guest Services, Inc ...... Lassen Volcanic National Park. MUWO001–85 ...... ARAMARK Sports & Entertainment, Inc ...... Muir Woods National Monument. OLYM001–78 ...... ARAMARK Sports & Entertainment, Inc ...... Olympic National Park. OLYM002–89 ...... Log Cabin Resort, Inc ...... Olympic National Park. OLYM005–87 ...... Forever Resorts, LLC ...... Olympic National Park. ROLA003–87 ...... Ross Lake Resort, Inc ...... Ross Lake National Recreation Area. YOSE001–98 ...... Best’s Studio, Inc ...... Yosemite National Park. AMIS002–89 ...... Rex Maughn ...... Amistad National Recreation Area. AMIS003–87 ...... Rough Canyon Marina ...... Amistad National Recreation Area. BRCA003–84 ...... Xanterra Parks & Resorts, Inc ...... Bryce Canyon National Park. CACH001–84 ...... White Dove Inc., dba Thunderbird Lodge ...... Canyon de Chelly National Monu- ment. GLAC001–89 ...... Glacier Park Boat Company, Inc ...... Glacier National Park. GLAC002–81 ...... Glacier Park, Inc ...... Glacier National Park. GLCA003–69 ...... ARAMARK ...... Glen Canyon National Park. GRCA004–88 ...... Jerman-Mangum Enterprises, Inc ...... Grand Canyon National Park. GRTE003–97 ...... Rex G. and Ruth G. Maughan ...... Grand Teton National Park. LAMR002–87 ...... Rex Maughan ...... Lake Meredith National Recreation Area. MEVE001–82 ...... ARAMARK ...... Mesa Verde National Park. PEF0001–85 ...... Xanterra Parks & Resorts, LLC ...... Petrified Forest National Park. Z10N003–85 ...... Xanterra Parks & Resorts LLC ...... Zion National Park. YELL001–03 ...... Medcor Incorporated ...... Yellowstone National Park. HOSP002–94 ...... Buckstaff Bath House Company ...... Hot Springs National Park. OZAR001–88 ...... Shane and Kimberly Van Steenis (Alley Spring Canoe Rental) ...... Ozark National Scenic Riverway. OZAR012–88 ...... Akers Ferry Canoe Rental, Inc ...... Ozark National Scenic Riverway. OZAR016–89 ...... Carr’s Grocery & Canoe Rental ...... Ozark National Scenic Riverway. SLBE005–86 ...... G. Michael Grosvenor (Manitou Island Transit) ...... Sleeping Bear Dunes National Land- mark. VOYA002–96 ...... Kettle Falls Hotel ...... Voyageurs National Park. BLRJ001–93 ...... Southern Highland Handicraft Guild ...... Blue Ridge Parkway. BLRI002–83 ...... Northwest Trading Post, Inc ...... Blue Ridge Parkway. BLRI007–82 ...... Forever NPC Resorts, LLC ...... Blue Ridge Parkway. CAHA001–98 ...... Avon-Thornton Limited Partnership ...... Cape Hatteras National Seashore. CAHA002–98 ...... Cape Hatteras Fishing Pier, Inc ...... Cape Hatteras National Seashore. CAHA004–98 ...... Oregon Inlet Fishing Center, Inc ...... Cape Hatteras National Seashore. CALO003–98 ...... Morris Marina, Kabin Kamps & Ferry Service, Inc ...... Cape Lookout National Seashore. EVER001–80 ...... Xanterra Parks and Resorts, Inc ...... Everglades National Park. MACA002–82 ...... Forever Resorts, LLC/Forever Resorts, Inc ...... Mammoth Cave National Park. VIIS001–71 ...... Caneel Bay, Inc ...... Virgin Islands National Park.

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FOR FURTHER INFORMATION CONTACT: Jo DEPARTMENT OF THE INTERIOR National Park Service proposes to A. Pendry, Concession Program extend the following expiring Manager, National Park Service, National Park Service concession contracts for a period of up Washington, DC 20240, Telephone 202/ to 1 year, or until such time as a new Notice of Extension of Concession 513–7156. contract is executed, whichever occurs Contracts sooner. Dated: October 20, 2008. AGENCY: National Park Service, Interior. SUPPLEMENTARY INFORMATION: All of the Katherine H. Stevenson, ACTION: Public notice. listed concession authorizations will Assistant Director, Business Services. expire by their terms on or before [FR Doc. E8–29324 Filed 12–11–08; 8:45 am] DATES: Effective Date: January 1, 2009. December 31, 2008. The National Park BILLING CODE 4312–53–M FOR FURTHER INFORMATION CONTACT: Jo Service has determined that the A. Pendry, Concession Program proposed short-term extensions are Manager, National Park Service, necessary in order to avoid interruption Washington, DC 20240, Telephone 202/ of visitor services and has taken all 513–7156. reasonable and appropriate steps to SUMMARY: Pursuant to 36 CFR 51.23, consider alternatives to avoid such public notice is hereby given that the interruption.

Conc. ID No. Concessioner name Park

GRTE004–98 ...... Triangle X Ranch, LLP ...... Grand Teton National Park. GRTE006–02 ...... Barker Ewing Scenic Tours, Inc ...... Grand Teton National Park. GRTE008–02 ...... Jack H. Dennis Jr...... Grand Teton National Park. GRTE010–02 ...... Will Dorman ...... Grand Teton National Park. GRTE011–02 ...... Heart Six Ranch ...... Grand Teton National Park. GRTE014–02 ...... Countryside, LLC ...... Grand Teton National Park. GRTE015–02 ...... Triangle X Ranch, LLP ...... Grand Teton National Park. GRTE017–02 ...... O.A.R.S. Inc ...... Grand Teton National Park. GRTE020–02 ...... Solitude Float Trips, Inc ...... Grand Teton National Park. GRTE040–02 ...... Lost Creek Ranch ...... Grand Teton National Park. GRTE043–02 ...... Great Salt Lake Council, Inc ...... Grand Teton National Park. GRTE045–02 ...... C-H Ranch Corporation ...... Grand Teton National Park. NACC001–89 ...... Golf Course Specialist, Inc ...... National Capital Parks—Central. BLRI004–88 ...... Virginia Peaks of Otter ...... Blue Ridge Parkway. EVER004–99 ...... TRF Concession Specialists of Florida, Inc ...... Everglades National Park. HAV0001–89 ...... Ken Direction Corporation ...... Hawaii Volcanoes National Park. CHIS001–98 ...... Island Packers, Inc ...... Channel Islands National Park. PORE003–98 ...... Golden Gate Council of American Youth Hostels ...... Point Reyes National Seashore. ISR0002–82 ...... Forever NPC Resorts, LLC ...... Isle Royale National Park. ACAD014–02 ...... Carriages in the Park, Inc ...... Acadia National Park. CAC0002–04 ...... The Benz Corporation ...... Cape Cod National Seashore. FIIS003–98 ...... Sayville Ferry Service, Inc ...... Fire Island National Seashore. FIIS004–02 ...... Davis Park Ferry Company, Inc ...... Fire Island National Seashore. GATE003–98 ...... Marinas of the Future, Inc ...... Gateway National Recreation Area.

FOR FURTHER INFORMATION CONTACT: Jo Federal Advisory Committee Act of elements; (2) providing A. Pendry, Concession Program 1972 (Pub. L. 92–463). Following recommendations on effective Manager, National Park Service, consultation with the General Services integration of Program elements to Washington, DC 20240, Telephone 202/ Administration, notice is hereby given provide continuous, balanced 513–7156. that the Secretary of the Interior improvement of each of the Program Dated: October 20, 2008. (Secretary) is renewing the charter for objectives (ecosystem restoration, water Katherine H. Stevenson, the California Bay-Delta Public quality, levee system integrity, and water supply reliability); (3) evaluating Assistant Director, Business Services. Advisory Committee (Committee). The implementation of Program actions, [FR Doc. E8–29321 Filed 12–11–08; 8:45 am] purpose of the Committee is to provide advice and recommendations to the including assessment of Program area BILLING CODE 4310–70–M Secretary on implementation of the performance; (4) reviewing and making CALFED Bay-Delta Program (Program) recommendations on Program Plans and DEPARTMENT OF THE INTERIOR as described in the Programmatic Annual Reports describing Record of Decision which outlines the implementation of Program elements as Bureau of Reclamation long-term comprehensive solution for set forth in the ROD to the Secretary; (5) addressing the problems affecting the recommending Program actions taking California Bay-Delta Public Advisory San Francisco Bay-Sacramento-San into account recommendations from the Committee Charter Renewal Joaquin Delta Estuary, Public Law 108– Committee’s subcommittees; and (6) liaison between the Committee’s AGENCY: Bureau of Reclamation, 361, and other applicable law. Specific responsibilities of the Committee subcommittees, the State and Federal Interior. agencies, the Secretary and the ACTION: Notice of renewal. include: (1) Making recommendations on annual priorities and coordination of Governor. SUMMARY: This notice is published in Program actions to achieve balanced The Committee consists of 20 to 30 accordance with Section 9(a)(2) of the implementation of the Program members who are appointed by the

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Secretary, in consultation with the FOR FURTHER INFORMATION CONTACT: Paul not to review, respondents Lunar, GX, Governor. M. Bartkowski, Office of the General Ingram, Quality, General Protecht Group FOR FURTHER INFORMATION CONTACT: Counsel, U.S. International Trade U.S., Inc., and USI were terminated Diane Buzzard, CALFED Program Commission, 500 E Street, SW., from the investigation; the ‘340 patent Manager, Bureau of Reclamation, 2800 Washington, DC 20436, telephone (202) was added to the investigation; P&S’s motion for summary determination that Cottage Way, Sacramento, California 708–5432. Copies of non-confidential it satisfied the economic prong of the 95821–1898, telephone 916–978–5525. documents filed in connection with this domestic industry requirement was The certification of Charter renewal is investigation are or will be available for granted with respect to all asserted published below: inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the patents; and the investigation was Certification Office of the Secretary, U.S. terminated with respect to all claims I hereby certify that Charter renewal International Trade Commission, 500 E except claims 1, 7, and 8 of the ‘398 of the California Bay-Delta Public Street, SW., Washington, DC 20436, patent, claim 1 of the ‘386 patent, claims Advisory Committee is in the public telephone (202) 205–2000. General 14, 18, and 30 of the ‘340 patent, claims interest in connection with the information concerning the Commission 1 and 15 of the ‘564 patent; claims 1, 2, 5, and 6 of the ‘973 patent; and claim performance of duties imposed on the may also be obtained by accessing its 52 of the ‘718 patent. Department of the Interior. Internet server at http://www.usitc.gov. The public record for this investigation On September 24, 2008, the ALJ Dirk Kempthorne, may be viewed on the Commission’s issued his final ID, finding a violation Secretary of the Interior. electronic docket (EDIS) at http:// with respect to each patent by each [FR Doc. E8–29267 Filed 12–11–08; 8:45 am] edis.usitc.gov. Hearing-impaired remaining respondent. Respondents ELE BILLING CODE 4310–MN–M persons are advised that information on (in a joint brief with its respondent this matter can be obtained by customers Cheetah, Colacino, Orbit, and contacting the Commission’s TDD Nicor), Meihao (in a joint brief with its terminal on (202) 205–1810. respondent customer TDE), GPG, and INTERNATIONAL TRADE Trimone each filed a petition for review SUPPLEMENTARY INFORMATION: This COMMISSION of the ID. P&S and the Commission investigation was instituted on [Investigation No. 337–TA–615] investigative attorney (‘‘IA’’) each filed September 18, 2007, based on a a response to the respondents’ petitions In the Matter of Certain Ground Fault complaint filed by Pass & Seymour, Inc. for review. Meihao filed a motion for Circuit Interrupters and Products (‘‘P&S’’) of Syracuse, New York. The leave to file a reply to P&S’s response, Containing Same; Notice of complaint, as supplemented, alleged along with a proposed reply submission. Commission Determination To Review violations of section 337 of the Tariff Having examined the record of this in Part a Final Determination on Act of 1930 (19 U.S.C. 1337) in the investigation, including the ALJ’s final Violation of Section 337; Schedule for importation into the United States, the ID and the submissions of the parties, Briefing on the Issues on Review and sale for importation, and the sale within the Commission has determined to deny on Remedy, Public Interest, and the United States after importation of Meihao’s motion for leave to file a reply, Bonding; Denial of Motion for Leave To certain ground fault circuit interrupters and has determined to review the final File a Reply and products containing the same by ID in part. Specifically, the Commission reason of infringement of certain claims has determined to review (1) The ALJ’s AGENCY: U.S. International Trade of certain United States patents. The construction of ‘‘unitary, electrically Commission. complaint named 15 respondents: conducting member carrying a pair of ACTION: Notice. General Protecht Group, Inc. (‘‘GPG’’) of spaced electrical contacts’’ in the Zhejiang, China; General Protecht Group asserted claims of the ‘398 patent and SUMMARY: Notice is hereby given that U.S., Inc. of Atlanta, Georgia; Shanghai related issues of infringement, domestic the U.S. International Trade ELE Manufacturing Corporation (‘‘ELE’’) industry, and validity; (2) the ALJ’s Commission has determined to review of Shanghai, China; Shanghai Meihao construction of ‘‘mounting means’’ in in part the final initial determination Electric, Inc. (‘‘Meihao’’) of Shanghai, the asserted claims of the ‘398 patent (‘‘ID’’) issued by the presiding China; Wenzhou Trimone Company and related issues of infringement, administrative law judge (‘‘ALJ’’) in the (‘‘Trimone’’) of Zhejiang, China; domestic industry, and validity; (3) the above-captioned investigation finding a Cheetah USA Corp. (‘‘Cheetah’’) of ALJ’s construction of ‘‘latching means’’ violation of 19 U.S.C. 1337 (‘‘section Sandy, Utah; GX Electric (‘‘GX’’) of in the ‘398 patent and related issues of 337’’) in the importation into the United Pompano Beach, Florida; Nicor Inc. infringement, domestic industry, and States, the sale for importation, or the (‘‘Nicor’’) of Albuquerque, New Mexico; validity; (4) the ALJ’s conclusion that sale within the United States after Orbit Industries, Inc. (‘‘Orbit’’) of Los the asserted claims of the ‘340 patent are importation of certain ground fault Angeles, California; The Designer’s Edge not invalid; (5) the ALJ’s construction of circuit interrupters and products (‘‘TDE’’) of Bellevue, Washington; ‘‘an actuator assembly configured to containing same by reason of Universal Security Instruments, Inc. provide an actuator signal in response to infringement of one or more of claims 1, (‘‘USI’’) of Owings Mills, Maryland; the fault detection or the wiring state 7, and 8 of U.S. Patent No. 5,594,398 Colacino Electric Supply, Inc. detection signal’’ in claim 1 of the ‘386 (‘‘the ‘398 patent’’); claims 14, 18, and (‘‘Colacino’’) of Newark, New York; patent and related issues of 30 of U.S. Patent No. 7,283,340 (‘‘the Ingram Products, Inc. (‘‘Ingram’’) of infringement, domestic industry, and ‘340 patent’’); claim 1 of U.S. Patent No. Jacksonville, Florida; Lunar Industrial & validity; (6) the ALJ’s construction of 7,212,386 (‘‘the ‘386 patent’’); claims 1 Electrical, Inc. (‘‘Lunar’’) of Miami, ‘‘the circuit interrupter being configured and 15 of U.S. Patent No. 7,164,564 Florida; and Quality Distributing, LLC. to disconnect the first conductive path (‘‘the ‘564 patent’’); claim 1 of U.S. (‘‘Quality’’) of Hillsboro, Oregon. from the second conductive path in Patent No. 7,256,973 (‘‘the ‘973 patent’’); After institution of the investigation, response to the actuator signal in the and claim 52 of U.S. Patent No. by separate initial determinations, each reset state’’ in claim 1 of the ‘386 patent 7,154,718 (‘‘the ‘718 patent’’). of which the Commission determined and related issues of infringement,

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domestic industry, and validity; (7) the that were not discussed in response to subject to investigation, and (4) U.S. ALJ’s determination that claim 1 of the questions (1) and (2). consumers. The Commission is ‘386 patent is not invalid; (8) the ALJ’s Regarding the ‘386 Patent: therefore interested in receiving written determination of infringement of claim (1) What effect would a construction submissions that address the 1 of the ‘973 patent regarding ELE’s that recognizes that the ‘‘configured to aforementioned public interest factors 2006 GFCIs; and (9) the ALJ’s disconnect’’ limitation requires the in the context of this investigation. construction of ‘‘cantilever’’ in claim 52 device to trip in response to an actuator If the Commission orders some form of the ‘718 patent and related issues of signal—whether that actuator signal is of remedy, the U.S. Trade infringement, domestic industry, and generated in response to either a fault Representative, as delegated by the validity. The Commission requests detection signal or a wiring state President, has 60 days to approve or briefing based on the evidentiary record detection signal—in the reset state have disapprove the Commission’s action. on these topics. The Commission is on infringement, domestic industry, and See Presidential Memorandum of July particularly interested in responses to validity? Please provide record evidence 21, 2005, 70 FR 43251 (July 26, 2005). the following questions: supporting your conclusions under such During this period, the subject articles Regarding the ‘398 patent: a construction. would be entitled to enter the United (1) How would modifying the (2) Please provide specific limitations States under bond, in an amount construction to more clearly provide of claim 1 of the ‘386 patent that are not determined by the Commission and meaning to the terms ‘‘unitary’’ and disclosed in the DiSalvo patent, and prescribed by the Secretary of the ‘‘carrying’’ affect the determinations of supporting evidentiary citations. Treasury. The Commission is therefore infringement, validity, and domestic Regarding the ‘973 patent: interested in receiving submissions industry, if at all? In what way is the ‘‘user-accessible concerning the amount of the bond that (2) Please specifically address the housing feature’’ in ELE’s device, that is, should be imposed if a remedy is statement made in reference to the the hole, in communication with the ordered. Doyle and Van Haaren patents in CX– switch element? Written Submissions: The parties to 9, PS–ITC 336699, referenced in P&S’s Regarding the ‘718 patent: the investigation are requested to file response to the petitions for review, in What effect would modifying the written submissions on the issues under your response to question (1). ALJ’s construction of ‘‘cantilever’’ to review. The submissions should be (3) Is ‘‘mounting’’ a required function adopt Meihao’s proposed construction concise and thoroughly referenced to of the claimed ‘‘mounting means’’? If so, have on the determinations of the record in this investigation, what structure from the ‘398 patent infringement, validity, and domestic including references to exhibits and performs the function of ‘‘mounting’’? industry regarding the ‘718 patent? testimony. Additionally, parties to the (4) How would modifying the Furthermore, in connection with the investigation, interested government structure identified as corresponding to final disposition of this investigation, agencies, and any other interested the ‘‘latching means’’ to include the the Commission may (1) issue an order parties are encouraged to file written ‘‘latch member’’ disclosed in the ‘398 that could result in the exclusion of the submissions on the issues of remedy, patent affect the determinations of subject articles from entry into the the public interest, and bonding. Such infringement, validity, and domestic United States, and/or (2) issue one or submissions should address the industry? more cease-and-desist orders that could recommended determination by the ALJ (5) Does the structure in Trimone’s result in the respondent being required on remedy and bonding. Further, 2006 GFCIs accused of meeting the to cease and desist from engaging in regarding the potential issuance of a ‘‘mounting means’’ limitation permit unfair acts in the importation and sale general exclusion order, the movement to a ‘‘second position, of such articles. Accordingly, the Commission requests briefing specific to wherein both of said pair of contacts are Commission is interested in receiving whether the statutory criteria set forth in in spaced, circuit-breaking relation to written submissions that address the section 337(d)(2) are met in this said pair of terminals’’? form of remedy, if any, that should be investigation. Complainants and the Regarding the ‘340 patent: ordered. If a party seeks exclusion of an Commission investigative attorney are (1) Does the DiSalvo patent’s article from entry into the United States also requested to submit proposed statement that ‘‘[c]losing the reset for purposes other than entry for remedial orders for the Commission’s contacts activates the operation of the consumption, the party should so consideration. Complainants are also circuit by, for example simulating a indicate and provide information requested to state the dates that the ground fault * * *’’ constitute a establishing that activities involving patents expire and the HTSUS numbers disclosure of ‘‘a predetermined signal other types of entry either are adversely under which the accused products are not simulating a fault condition’’? If so, affecting it or likely to do so. For imported. The written submissions and are the asserted claims of the ‘340 patent background, see In the Matter of Certain proposed remedial orders must be filed obvious over the DiSalvo patent? Devices for Connecting Computers via no later than close of business on (2) Does the Neiger patent’s disclosure Telephone Lines, Inv. No. 337–TA–360, December 22, 2008. Reply submissions of a circuit that detects a miswire USITC Pub. No. 2843 (December 1994) must be filed no later than the close of condition constitute a disclosure of ‘‘at (Commission Opinion). business on December 31, 2008. No least one detection circuit * * * If the Commission contemplates some further submissions on these issues will configured to generate a predetermined form of remedy, it must consider the be permitted unless otherwise ordered signal in response to detecting a proper effects of that remedy upon the public by the Commission. wiring condition,’’ under the ALJ’s interest. The factors the Commission Persons filing written submissions construction of ‘‘detection’’? If so, are will consider include the effect that an must file the original document and 12 the asserted claims of the ‘340 patent exclusion order and/or cease-and-desist true copies thereof on or before the obvious over the Neiger patent? orders would have on (1) The public deadlines stated above with the Office (3) Please address any remaining health and welfare, (2) competitive of the Secretary. Any person desiring to arguments, that were previously raised, conditions in the U.S. economy, (3) U.S. submit a document to the Commission in favor of obviousness/nonobviousness production of articles that are like or in confidence must request confidential of the asserted claims of the ‘340 patent directly competitive with those that are treatment unless the information has

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already been granted such treatment obtained by contacting the made its preliminary less than fair value during the proceedings. All such Commission’s TDD terminal on 202– (‘‘LTFV’’) determination, the requests should be directed to the 205–1810. Persons with mobility Commission, for purposes of efficiency, Secretary of the Commission and must impairments who will need special included the antidumping duty include a full statement of the reasons assistance in gaining access to the investigation in the schedule for the why the Commission should grant such Commission should contact the Office countervailing duty investigation. On treatment. See 19 CFR 201.6. Documents of the Secretary at 202–205–2000. November 6, 2008, Commerce issued its for which confidential treatment by the General information concerning the preliminary antidumping duty Commission is sought will be treated Commission may also be obtained by determination and postponed its final accordingly. All nonconfidential written accessing its Internet server (http:// antidumping duty determination (73 FR submissions will be available for public www.usitc.gov). The public record for 66012). Accordingly, the Commission is inspection at the Office of the Secretary. this investigation may be viewed on the issuing the additional scheduling date The authority for the Commission’s Commission’s electronic docket (EDIS) with respect to the antidumping duty determination is contained in section at http://edis.usitc.gov. investigation as follows: A 337 of the Tariff Act of 1930, as Authority: This investigation is being supplemental brief addressing only amended (19 U.S.C. 1337), and in terminated under authority of title VII of the Commerce’s final antidumping duty section 210.42 of the Commission’s Tariff Act of 1930; this notice is published determination is due on March 31, 2009. Rules of Practice and Procedure (19 CFR pursuant to section 207.40 of the The brief may not exceed five (5) pages 210.42). Commission’s rules (19 CFR 207.40). in length. By order of the Commission. By order of the Commission. For further information concerning these investigations see the Issued: December 8, 2008. Issued: December 8, 2008. Commission’s notice cited above and Marilyn R. Abbott, Marilyn R. Abbott, Secretary to the Commission. the Commission’s Rules of Practice and Secretary to the Commission. Procedure, part 201, subparts A through [FR Doc. E8–29452 Filed 12–11–08; 8:45 am] [FR Doc. E8–29454 Filed 12–11–08; 8:45 am] E (19 CFR part 201), and part 207, BILLING CODE 7020–02–P BILLING CODE 7020–02–P subparts A and C (19 CFR part 207). Authority: These investigations are being INTERNATIONAL TRADE INTERNATIONAL TRADE conducted under authority of title VII of the COMMISSION Tariff Act of 1930; this notice is published COMMISSION pursuant to section 207.21 of the [Investigation No. 731–TA–1150 (Final)] [Investigations Nos. 701–TA–455 and 731– Commission’s rules. TA–1149 (Final)] By order of the Commission. Circular Welded Carbon Quality Steel Issued: December 8, 2008. Line Pipe From Korea Circular Welded Carbon Quality Steel Line Pipe From China Marilyn R. Abbott, AGENCY: United States International Secretary to the Commission. AGENCY: United States International Trade Commission. Trade Commission. [FR Doc. E8–29453 Filed 12–11–08; 8:45 am] ACTION: Termination of investigation. BILLING CODE 7020–02–P ACTION: Additional scheduling date for SUMMARY: On November 25, 2008, the the subject investigations. Commission received a letter from the INTERNATIONAL TRADE DATES: Effective Date: December 5, 2008. Department of Commerce stating that, COMMISSION having received a letter from petitioners FOR FURTHER INFORMATION CONTACT: [Investigation No. 332–288] in the subject investigation (Maverick Mary Messer (202–205–3193), Office of Investigations, U.S. International Trade Tube Corp., United States Steel Corp., Ethyl Alcohol for Fuel Use: Tex-Tube Corp., and the United Steel, Commission, 500 E Street, SW., Washington, DC 20436. Hearing- Determination of the Base Quantity of Paper and Forestry, Rubber, Imports Manufacturing, Energy, Allied impaired persons can obtain Industrial and Service Workers information on this matter by contacting AGENCY: United States International International Union, AFL–CIO–CLC) the Commission’s TDD terminal on 202– Trade Commission. 205–1810. Persons with mobility withdrawing its petition, Commerce was ACTION: Notice of determination. terminating its antidumping impairments who will need special investigation on circular welded carbon assistance in gaining access to the SUMMARY: Section 423(c) of the Tax quality steel line pipe from Korea. Commission should contact the Office Reform Act of 1986, as amended (19 Accordingly, pursuant to section of the Secretary at 202–205–2000. U.S.C. 2703 note), requires the United 207.40(a) of the Commission’s Rules of General information concerning the States International Trade Commission Practice and Procedure (19 CFR Commission may also be obtained by to determine annually the amount 207.40(a)), the subject investigation is accessing its Internet server (http:// (expressed in gallons) that is equal to 7 terminated. www.usitc.gov). The public record for percent of the U.S. domestic market for these investigations may be viewed on fuel ethyl alcohol during the 12-month DATES: Effective Date: November 25, the Commission’s electronic docket period ending on the preceding 2008. (EDIS) at http://edis.usitc.gov. September 30. This determination is to FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Effective be used to establish the ‘‘base quantity’’ Mary Messer (202–205–3193), Office of September 9, 2008, the Commission of imports of fuel ethyl alcohol with a Investigations, U.S. International Trade established a schedule for the conduct zero percent local feedstock requirement Commission, 500 E Street, SW., of the final phase of the subject that can be imported from U.S. insular Washington, DC 20436. Hearing- investigations (73 FR 54618, September possessions or CBERA-beneficiary impaired individuals are advised that 22, 2008). Although the Department of countries. The base quantity to be used information on this matter can be Commerce (‘‘Commerce’’) had not yet by U.S. Customs and Border Protection

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in the administration of the law is the 2008 amount in the Federal Register of Time: 8:30 a.m. to 5 p.m. greater of 60 million gallons or 7 percent December 28, 2007 (72 FR 73883). The ADDRESSES: St. Mary’s University of U.S. consumption, as determined by Commission uses official statistics of the School of Law, 1 Camino Santa Maria the Commission. U.S. Department of Energy to make Street, San Antonio, TX 78228–5433. For the 12-month period ending these determinations, as well as the FOR FURTHER INFORMATION CONTACT: John September 30, 2008, the Commission PIERS database of the Journal of K. Rabiej, Chief, Rules Committee has determined the level of U.S. Commerce, which is based on U.S. Support Office, Administrative Office of consumption of fuel ethyl alcohol to be export declarations. the United States Courts, Washington, 8.88 billion gallons; 7 percent of this By order of the Commission. DC 20544, telephone (202) 502–1820. amount is 621.5 million gallons (these Issued: December 9, 2008. figures have been rounded). Therefore, Dated: December 8, 2008. the base quantity for 2009 should be Marilyn R. Abbott, John K. Rabiej, 621.5 million gallons. Secretary to the Commission. Chief, Rules Committee Support Office. [FR Doc. E8–29455 Filed 12–11–08; 8:45 am] ADDRESSES: All Commission offices, [FR Doc. E8–29488 Filed 12–11–08; 8:45 am] including the Commission’s hearing BILLING CODE 7020–02–P BILLING CODE 2210–55–M rooms, are located in the United States International Trade Commission Building, 500 E Street, SW., JUDICIAL CONFERENCE OF THE DEPARTMENT OF JUSTICE Washington, DC. All written UNITED STATES submissions should be addressed to the Antitrust Division Meeting of the Judicial Conference Secretary, United States International Advisory Committee on Rules of Trade Commission, 500 E Street, SW., Notice Pursuant to the National Bankruptcy Procedure Washington, DC 20436. The public Cooperative Research and Production Act of 1993—Interchangeable Virtual record for this investigation may be AGENCY: Judicial Conference of the Instruments Foundation, Inc. viewed on the Commission’s electronic United States Advisory Committee on docket (EDIS) at http://www.usitc.gov/ Rules of Bankruptcy Procedure. Notice is hereby given that, on secretary/edis.htm. ACTION: Notice of open meeting. November 3, 2008, pursuant to Section FOR FURTHER INFORMATION CONTACT: For 6(a) of the National Cooperative information specific to this SUMMARY: The Advisory Committee on Research and Production Act of 1993, investigation, contact project leader Rules of Bankruptcy Procedure will 15 U.S.C. 4301 et seq. (‘‘the Act’’), Douglas Newman (202) 205–3328, hold a two-day meeting. The meeting Interchangeable Virtual Instruments [email protected], in the will be open to public observation but Foundation, Inc. has filed written Commission’s Office of Industries. For not participation. notifications simultaneously with the information on legal aspects of the DATES: March 26–27, 2009. Attorney General and the Federal Trade investigation contact William Gearhart, Time: 8:30 a.m. to 5 p.m. Commission disclosing changes in its [email protected], of the ADDRESSES: Estancia La Jolla Hotel, membership. The notifications were Commission’s Office of the General 9700 N Torrey Pines Road, La Jolla, CA filed for the purpose of extending the Counsel at (202) 205–3091. The media 92037–1102. Act’s provisions limiting the recovery of should contact Margaret O’Laughlin, FOR FURTHER INFORMATION CONTACT: John antitrust plaintiffs to actual damages Office of External Relations (202–205– K. Rabiej, Chief, Rules Committee under specified circumstances. 1819 or [email protected]). Support Office, Administrative Office of Specifically, Honeywell Technology Hearing-impaired individuals may the United States Courts, Washington, Solutions, Bangalore, INDIA; Easbeacon obtain information on this matter by DC 20544, telephone (202) 502–1820. Test Systems Ltd., Beijing, PEOPLE’S contacting the Commission’s TDD Dated: December 8, 2008. REPUBLIC OF CHINA; The Boeing terminal at 202–205–1810. General John K. Rabiej, Company, St. Louis, St. Louis, MO; and information concerning the Commission Raytheon Missile Systems, Tucson, AZ Chief, Rules Committee Support Office. may also be obtained by accessing its have withdrawn as parties to this Internet server (http://www.usitc.gov). [FR Doc. E8–29480 Filed 12–11–08; 8:45 am] venture. In addition, Xantrex Persons with mobility impairments who BILLING CODE 2210–55–M Technology, Inc. has changed its name will need special assistance in gaining to Ametek Programmable Power, San access to the Commission should Diego, CA. JUDICIAL CONFERENCE OF THE contact the Office of the Secretary at No other changes have been made in UNITED STATES 202–205–2000. either the membership or planned Background: Section 423(c) of the Tax Meeting of the Judicial Conference activity of the group research project. Reform Act of 1986, as amended, which Committee on Rules of Practice and Membership in this group research concerns local feedstock requirements Procedure project remains open, and for fuel ethyl alcohol imported by the Interchangeable Virtual Instruments United States from U.S. insular AGENCY: Judicial Conference of the Foundation, Inc. intends to file possessions or CBERA-beneficiary United States Committee on Rules of additional written notifications countries, requires that the Commission Practice and Procedure. disclosing all changes in membership. determine annually the amount that is ACTION: Notice of open meeting. On May 29, 2001, Interchangeable equal to 7 percent of the U.S. domestic Virtual Instruments Foundation, Inc. market for fuel ethyl alcohol. The SUMMARY: The Committee on Rules of filed its original notification pursuant to Commission published its notice Practice and Procedure will hold a two- Section 6(a) of the Act. The Department instituting this investigation in the day meeting. The meeting will be open of Justice published a notice in the Federal Register of March 21, 1990 (55 to public observation but not Federal Register pursuant to Section FR 10512), and published its most participation. 6(b) of the Act on July 30, 2001 (66 FR recent previous determination for the DATES: January 12–13, 2009. 39336).

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The last notification was filed with Register pursuant to Section 6(b) of the DEPARTMENT OF JUSTICE the Department on June 2, 2008. A Act on June 28, 1996 (61 FR 33774). Antitrust Division notice was published in the Federal The last notification was filed with Register pursuant to Section 6(b) of the the Department on December 27, 2007. Act on July 11, 2008 (73 FR 39987). Notice Pursuant to the National A notice was published in the Federal Cooperative Research and Production Patricia A. Brink, Register pursuant to Section 6(b) of the Act of 1993—PXI Systems Alliance, Deputy Director of Operations, Antitrust Act on February 11, 2008 (73 FR 7762). Inc. Division. Patricia A. Brink, [FR Doc. E8–29296 Filed 12–11–08; 8:45 am] Notice is hereby given that, on November 3, 2008, pursuant to Section BILLING CODE 4410–11–M Deputy Director of Operations, Antitrust Division. 6(a) of the National Cooperative [FR Doc. E8–29295 Filed 12–11–08; 8:45 am] Research and Production Act of 1993, DEPARTMENT OF JUSTICE BILLING CODE 4410–11–M 15 U.S.C. 4301 et seq. (‘‘the Act’’), PXI Systems Alliance, Inc., has filed written Antitrust Division notifications simultaneously with the DEPARTMENT OF JUSTICE Attorney General and the Federal Trade Notice Pursuant to the National Commission disclosing changes in its Cooperative Research and Production Antitrust Division membership. The notifications were Act of 1993—International Electronics filed for the purpose of extending the Manufacturing Initiative Notice Pursuant to the National Act’s provisions limiting the recovery of Notice is hereby given that, on Coopepative Research and Production antitrust plaintiffs to actual damages November 4, 2008, pursuant to Section Act of 1993—OPENSAF Foundation under specified circumstances. 6(a) of the National Cooperative Specifically, Beijing Control Industrial Research and Production Act of 1993, Notice is hereby given that, on Computer Corp., Beijing, People’s 15 U.S.C. § 4301 et seq. (‘‘the Act’’), November 6, 2008, pursuant to Section Republic of China; Elektrobit Austria GmbH, Vienna, Austria; and LeCroy International Electronics Manufacturing 6(a) of the National Cooperative Corporation, Chestnut Ridge, NY, have Initiative (‘‘iNEMI’’) has filed written Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), been added as parties to this venture. notifications simultaneously with the No other changes have been made in OpenSAF Foundation has filed written Attorney General and the Federal Trade either the membership or planned Commission disclosing changes in its notifications simultaneously with the activity of the group research project. membership. The notifications were Attorney General and the Federal Trade Membership in this group research filed for the purpose of extending the Commission disclosing changes in its project remains open, and PXI Systems Act’s provisions limiting the recovery of membership. The notifications were Alliance, Inc., intends to file additional antitrust plaintiffs to actual damages filed for the purpose of extending the written notifications disclosing all under specified circumstances. Act’s provisions limiting the recovery of changes in membership. Specifically, ASSET InterTech, Inc., antitrust plaintiffs to actual damages On November 22, 2000, PXI Systems Richardson, TX; Corelis, Cerritos, CA; under specified circumstances. Alliance, Inc., filed its original Dell, Inc., Round Rock, TX; Doosan Specifically, ENEA AB, Chandler, AZ notification pursuant to Section 6(a) of Corp. ElectroMaterials BG, Kyunggi-do, has been added as a party to this the Act. The Department of Justice REPUBLIC OF KOREA; Elite Material venture. published a notice in the Federal Co., Ltd., Tao-Yuan Hsien, TAIWAN; Register pursuant to Section 6(b) of the Industrial Technology Research Institute No other changes have been made in either the membership or planned Act on March 8, 2001 (66 FR 13971). (ITRI), Hsinchu, TAIWAN; IST- The last notification was filed with activity of the group research project. Integrated Service Technology, Inc., the Department on August 20, 2008. A Membership in this group research Hsinchu City, TAIWAN; ITEQ notice was published in the Federal project remains open, and OpenSAF Corporation, Taoyuan Hsien, TAIWAN; Register pursuant to Section 6(b) of the and Nan Ya Plastics Corporation, Foundation intends to file additional Act on September 18, 2008 (73 FR Taipei, TAIWAN have been added as written notifications disclosing all 54169). parties to this venture. changes in membership. Also, Analogic, Peabody, MA; Kester, On April 8, 2008, OpenSAF Patricia A. Brink, Des Plaines, IL; Parametric Technology Foundation filed its original notification Deputy Director of Operations, Antitrust Division. Corporation (PTC), Needham, MA; pursuant to Section 6(a) of the Act. The E2open, Redwood City, CA; Dassault Department of Justice published a notice [FR Doc. E8–29292 Filed 12–11–08; 8:45 am] Systems, Lowell, MA; and UGS, in the Federal Register pursuant to BILLING CODE 4410–11–M Milford, MA have withdrawn as parties Section 6(b) of the Act on May 16, 2008 to this venture. (73 FR 28508). No other changes have been made in DEPARTMENT OF JUSTICE either the membership or planned The last notification was filed with activity of the group research project. the Department on June 6, 2008. A Antitrust Division notice was published in the Federal Membership in this group research Notice Pursuant to the National project remains open, and iNEMI Register pursuant to Section 6(b) of the Cooperative Research and Production intends to file additional written Act on July 21, 2008 (73 FR 42367). Act of 1993—Semiconductor Test notifications disclosing all changes in Consortium, Inc. membership. Patricia A. Brink, On June 6, 1996, iNEMI filed its Deputy Director of Operations, Antitrust Notice is hereby given that, on original notification pursuant to Section Division. November 3, 2008, pursuant to Section 6(a) of the Act. The Department of [FR Doc. E8–29291 Filed 12–11–08; 8:45 am] 6(a) of the National Cooperative Justice published a notice in the Federal BILLING CODE 4410–11–M Research and Production Act of 1993,

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15 U.S.C. 4301 et seq. (‘‘the Act’’), revocation of Respondent’s DEA improper ex parte communication Semiconductor Test Consortium, Inc. Certificate of Registration, BR5325091, having prejudiced the proceeding of the has filed written notifications as a practitioner, on the ground that ‘‘as state licensing agency.’’ Id. at 4.1 simultaneously with the Attorney a result of [disciplinary] action by the The ALJ was not persuaded. The ALJ General and the Federal Trade Illinois Department of Financial and noted that there was no dispute that Commission disclosing changes in its Professional Regulation,’’ Respondent is Respondent was without authority to membership. ‘‘currently without authority to handle dispense controlled substances in The notifications were filed for the controlled substances in * * * Illinois, Illinois, and that under agency purpose of extending the Act’s the [S]tate in which [he is] registered precedent, he was not entitled to a stay provisions limiting the recovery of with DEA,’’ and is therefore not entitled of this proceeding during the pendency antitrust plaintiffs to actual damages to maintain his registration. Show Cause of his appeal of the state proceeding. under specified circumstances. Order at 1. ALJ Dec. at 3–4 (citing Wingfield Drugs, Specifically, Aeroflex Test Solutions, Respondent requested a hearing on Inc., 52 FR 27,070, 27,071 (1987)). The Stevenage, Hertfordshire, United the allegation; the matter was assigned ALJ thus concluded that further delay in Kingdom; and Geotest-Marvin Test to Administrative Law Judge (ALJ) Mary ruling on the Government’s motion was Systems, Irvine, CA have been added as Ellen Bittner. Thereafter, the unwarranted, granted the Government’s parties to this venture. Also, Stefan Government moved for summary motion for summary disposition, and Thurmaier (individual member), Bad disposition and to stay further recommended that Respondent’s Aibling, Germany; Macquaire proceedings. Motion for Sum. Disp. at registration be revoked and that ‘‘any Electronics, Inc., San Diego, CA; and 1–2. The basis for the Government’s pending applications be denied.’’ Id at Billy Antheunisse (individual member), motion was that on September 29, 2006, 4–5. The record was then forwarded to Dallas, TX have withdrawn as parties to the Illinois Department of Professional me for final agency action. this venture. Regulation suspended Respondent’s Thereafter, Respondent filed No other changes have been made in dental license ‘‘due to gross malpractice, exceptions to the ALJ’s decision. either the membership or planned professional incompetence, and Respondent’s principal argument is that activity of the group research project. dishonorable, unethical or the ALJ’s decision was overly broad Membership in this group research unprofessional conduct.’’ Id. at 1. because it recommended the denial of project remains open, and Because Respondent lacks authority any pending applications and thus Semiconductor Test Consortium, Inc. under Illinois law to dispense ‘‘goes beyond the scope of this intends to file additional written controlled substances and was therefore proceeding’’ because he had moved to notifications disclosing all changes in without authority to hold a DEA Tennessee and ‘‘was granted a license to membership. registration in Illinois, the Government practice dentistry in’’ that State. Resp. On May 27, 2003, Semiconductor Test maintained that his registration must be Exceptions at 2–3. Consortium, Inc. filed its original revoked. Id. at 1–2. Having considered the entire record Respondent opposed the notification pursuant to Section 6(a) of in this matter, including Respondent’s Government’s motion. Respondent the Act. exceptions, I adopt the ALJ’s decision in contended that he was denied a fair The Department of Justice published its entirety. I find that Respondent hearing in the state proceeding because a notice in the Federal Register currently holds DEA Certificate of a member of the Illinois House of pursuant to Section 6(b) of the Act on Registration, BR5325091, which Representatives had written the Director June 17, 2003 (68 FR 35913). authorizes him to dispense controlled of the Illinois Department of Financial The last notification was filed with substances in schedules II through V as and Professional Regulation and urged the Department on August 20, 2008. A a practitioner, at the registered location that Respondent ‘‘should never have his of Little Angel Dental Clinic, 3915 W. notice was published in the Federal dental license re-instated,’’ and ‘‘that Register pursuant to Section 6(b) of the 26th Street, Chicago, Illinois. this Dentist [should] never be allowed to Respondent’s registration does not Act on September 18, 2008 (73 FR practice in the State of Illinois * * * 54169) expire until April 30, 2009. again.’’ Response to Mot. for Sum. Disp. I further find that on September 29, Patricia A. Brink, at 1. Respondent further argued that the 2006, the Illinois Division of Deputy Director of Operations, Antitrust letter was an improper ex parte Professional Regulation suspended Division. communication, which was not made a Respondent’s state dental license ‘‘due [FR Doc. E8–29293 Filed 12–11–08; 8:45 am] part of the record as required by state to gross malpractice, professional law and which was not disclosed until BILLING CODE 4410–11–M incompetence, and dishonorable, the Director issued the final decision in unethical or unprofessional conduct.’’ the case, in which he rejected the Exh. A. to Gov. Motion for Summary recommendation of the state board that DEPARTMENT OF JUSTICE Disp. Moreover, I take official notice of a lesser sanction be imposed. Id. at 1– the online records of the Illinois Drug Enforcement Administration 2. Respondent further noted other cases Division of Professional Regulation, in which dentists who had committed [Docket No. 08–35] which indicate that both Respondent’s similar acts had received less harsh state dental license and his controlled sanctions and contends that there is ‘‘a Hicham K. Riba, D.D.S.; Revocation of substance license remain suspended.2 Registration reasonable inference that the Director was improperly influenced by the ex 1 Respondent further asserted that the proceeding On February 1, 2008, the Deputy parte communication and that the should be stayed pending the resolution of his state Assistant Administrator, Office of [state] proceeding * * * was not fair.’’ appeal. Diversion Control, Drug Enforcement Id. at 3. Finally, Respondent maintained 2 An agency ‘‘may take official notice of facts at Administration, issued an Order to that the authorities cited by the any stage in a proceeding—even in the final decision.’’ U.S. Dept. of Justice, Attorney General’s Show Cause to Hicham K. Riba, D.D.S. Government in support of its motion Manual on the Administrative Procedure Act 80 (Respondent), of Chicago, Illinois. The were distinguishable because ‘‘those (1947). In accordance with the Administrative Show Cause Order proposed the cases did not discuss the issue of Continued

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Under the Controlled Substances Act Representatives is not addressable in in-charge, as well as two of its (CSA), ‘‘[a] separate registration [is] this forum. employees, Ira Friedberg, a pharmacist, required at each principal place of Moreover, while it appears that and Jennifer Lee-Richards, a pharmacy * * * professional practice where the Respondent is seeking judicial review of technician, were diverting large [registrant] dispenses controlled the state proceeding in the Illinois quantities of oxycodone, a schedule II substances,’’ 21 U.S.C. 822(e), and a courts, the suspension nonetheless controlled substance, and that practitioner must be currently remains in effect. Respondent therefore Respondent’s continued registration authorized to handle controlled remains without authority under Illinois during the pendency of the proceedings substances in ‘‘the jurisdiction in which law to dispense controlled substances in ‘‘constitutes an imminent danger to he practices’’ in order to maintain a the State in which he is registered. public health and safety.’’ Show Cause DEA registration. See 21 U.S.C. 802(21) Because possessing authority under Order at 1–2 (citing 21 U.S.C. 824(d) & (‘‘[t]he term ‘practitioner’ means a state law is an essential condition for 841(a)). The Order also proposed the physician * * * licensed, registered, or holding a registration under the CSA, revocation of Respondent’s registration, otherwise permitted, by * * * the see 21 U.S.C. 802(21) & 823(f), and and the denial of any pending jurisdiction in which he practices * * * Respondent’s Illinois controlled applications to renew or modify its to distribute, dispense, [or] administer substance license remains suspended, registration, on the ground that * * * a controlled substance in the he is not entitled to a stay of this Respondent’s ‘‘continued registration is course of professional practice’’). See proceeding. See Wingfield Drugs, 52 FR inconsistent with the public interest.’’ also id. § 823(f) (‘‘The Attorney General at 27071. Order at 1 (citing 21 U.S.C. 823(f)). More specifically, the Show Cause shall register practitioners * * * if the Order applicant is authorized to dispense Order alleged that between March and * * * controlled substances under the Pursuant to the authority vested in me June 2007, pharmacy technician Lee- laws of the State in which he by 21 U.S.C. 823(f) & 824(a), as well as Richards had ‘‘diverted at least 5,900 practices.’’). As these provisions make 28 CFR 0.100(b) & 0.104, I hereby order dosage units of oxycodone, and at least plain, possessing authority to dispense that DEA Certificate of Registration, 500 dosage units of alprazolam.’’ Id. a controlled substance under the laws of BR5325091, issued to Hicham K. Riba, (citing 21 U.S.C. 841(a)(1)). With respect the State in which a dentist practices is D.D.S., be, and it hereby is, revoked. I to pharmacist Friedberg, the Order an essential condition for holding a DEA further order that any pending alleged that in February 2008, he had registration. application of Hicham K. Riba, D.D.S., ‘‘diverted at least 7,500 dosage units of oxycodone.’’ Id. (citing 21 U.S.C. Accordingly, DEA has repeatedly held to renew this registration be, and it 3 841(a)(1)). that the CSA requires the revocation of hereby is, denied. This order is effective January 12, 2009. As to Stanley Dyen, the Order alleged a registration issued to a practitioner that in February 2008, he had ‘‘diverted December 2, 2008. whose state license has been suspended at least 500 dosage units of hydrocodone or revoked. See Sheran Arden Yeates, Michele M. Leonhart, and at least 500 dosage units of 71 FR 39130, 39131 (2006); Dominick A. Deputy Administrator. alprazolam,’’ and that ‘‘[o]n February Ricci, 58 FR 51104, 51105 (1993); Bobby [FR Doc. E8–29406 Filed 12–11–08; 8:45 am] 18, 2008, [he] was arrested for Watts, 53 FR 11919, 11920 (1988). See BILLING CODE 4410–09–P trafficking in hydrocodone and delivery also 21 U.S.C. 824(a)(3)(authorizing the of alprazolam.’’ Id. at 1–2. The Order revocation of a registration ‘‘upon a further alleged that notwithstanding finding that the registrant * * * has had DEPARTMENT OF JUSTICE Stanley Dyen’s arrest, he ‘‘continues to his State license or registration Drug Enforcement Administration serve on a daily basis as’’ Respondent’s suspended [or] revoked * * * and is no pharmacist, and that ‘‘[t]he majority of longer authorized by State law to engage Your Druggist Pharmacy; Revocation the time, [he] is the sole pharmacist in the * * * distribution [or] dispensing of Registration * * * and operates without the of controlled substances’’). supervision of any other pharmacist or Moreover, DEA has repeatedly held On May 28, 2008, I, the Deputy employee.’’ Id. at 2. Finally, the Order ‘‘that a registrant cannot collaterally Administrator of the Drug Enforcement alleged that on March 4, 2008, Stanley attack the results of a state criminal or Administration, issued an Order to Dyen had ‘‘transferred ownership of administrative proceeding in a Show Cause and Immediate Suspension [Respondent] to * * * his wife, without proceeding under section 304 of the of Registration to Your Druggist complying with the requirements of 21 CSA.’’ Brenton D. Glisson, M.D., 72 FR Pharmacy (Respondent), of Coral CFR 1301.52.’’ Id. 54296, 54297 (2007) (quoting Sunil Springs, Florida. The Order On June 2, 2008, DEA Investigators Bhasin; M.D., 72 FR 5082, 5083 (2007)); immediately suspended Respondent’s went to Respondent and served the see also Shahid Musud Siddiqui, 61 FR DEA Certificate of Registration, Order by handing it to Stanley Dyen. On 14818 (1996); Robert A. Leslie, 60 FR AY1916103, which authorizes it to June 12, 2008, Respondent requested a 14004 (1995)). Respondent’s contention dispense controlled substances as a hearing on the allegations, and the that the state proceeding was retail pharmacy, on the grounds that matter was assigned to an fundamentally unfair because the Stanley Dyen, its owner and pharmacist- Administrative Law Judge (ALJ), who Director was improperly influenced by proceeded to conduct pre-hearing an ex parte communication from a 3 There is no evidence in the record as to whether procedures. On July 21, 2008, however, member of the Illinois House of Respondent has applied for a registration in Respondent withdrew its request for a Tennessee. Nor is there any evidence that Respondent requested a modification of his hearing. That same day, the ALJ issued Procedure Act and DEA’s regulation, Respondent is registered location from Illinois to Tennessee. an order terminating the proceeding. ‘‘entitled on timely request to an opportunity to Because this proceeding was based solely on Thereafter, the case file was show to the contrary.’’ 5 U.S.C. 556(e); see also 21 Respondent’s loss of authority under Illinois law, it forwarded to me for final agency action CFR 1316.59(e). Accordingly, Respondent may file is not res judicata on the question of whether a motion for reconsideration within fifteen days of granting Respondent a registration to dispense pursuant to 21 CFR 1301.43(e). Based on service of this order which shall commence with controlled substances in Tennessee would be the letter from Respondent’s counsel the mailing of the order. consistent with the public interest. withdrawing its request for a hearing, I

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find that Respondent has waived its gave C.P. 7500 tablets and his car keys State of Florida, with its purchases right to a hearing. I therefore issue this and told C.P. to place $7500 in his car’s totaling nearly 754,000 tablets between Decision and Final Order without a center console. Friedberg also gave C.P. January 1 and March 22, 2008. hearing based on relevant material an additional 5000 tablets of oxycodone Moreover, during the service of the contained in the investigative file, see (which Friedberg was to deliver to L.H., Immediate Suspension Order, id., and make the following findings. a third party) and told C.P. to place it investigators received information that on the passenger side floorboard of Findings Respondent has a large number of out- Friedberg’s car. of-town customers, who had typically Respondent is the holder of DEA Shortly thereafter, Friedberg left traveled from Kentucky to fill Certificate of Registration, AY1916103, Respondent, entered his car, and drove prescriptions for such drugs as which authorized it to dispense away. The police conducted a traffic oxycodone, alprazolam, and controlled substances in schedule II stop and recovered the 5000 oxycodone carisoprodol.1 The customers would not through V as a retail pharmacy at the tablets. A TFO told Friedberg that he show up until after 5 p.m., and the registered location of 8091 West Sample was aware that the tablets were to be pharmacy would fill the prescriptions Road, Coral Springs, Florida. delivered to L.H.; Friedberg then agreed even if its employees were unable to Respondent’s registration does not to cooperate and wear a recording verify the prescriptions’ legitimacy with expire until May 31, 2009. device. the prescribing practitioners because In June 2007, a DEA Task Force Friedberg then met L.H. After a their offices were closed. Officer (TFO) received an anonymous conversation, L.H. went back to his car complaint that Respondent was engaged and retrieved approximately $5000. Discussion in the unlawful distribution of Friedberg and L.H. then went to the Section 304(a) of the Controlled controlled substances. Thereafter, former’s car, opened the passenger-side Substance Act provides that ‘‘[a] investigators observed Jennifer Lee- door, and placed the money on the front registration * * * to * * * dispense a Richards, a pharmacy technician seat. The police immediately arrested controlled substance * * * may be employed by Respondent, leave the both Friedberg and L.H., and recovered suspended or revoked by the Attorney pharmacy carrying a bag which both the drugs and the money. General upon a finding that the contained several small containers. Thereafter, a Federal Grand Jury registrant * * * has committed such Local police stopped Lee-Richards and indicted both Friedberg and L.H., acts as would render his registration found that she had in her possession charging each with conspiracy to under section 823 of this title 5800 tablets of oxycodone 30 mg., and possess oxycodone with the intent to inconsistent with the public interest as 100 tablets of Oxycontin 80 mg., both of distribute. determined under such section.’’ 21 which are schedule II controlled The following day, a confidential U.S.C. 824(a). With respect to a substances, 21 CFR 1308.12(b)(1), as source (CS) told the investigators that he practitioner (which includes a retail well as 500 tablets of alprazolam 2 mg., had previously bought hydrocodone and pharmacy), the Act directs that the a schedule IV controlled substance. Id. alprazolam from Stanley Dyen without Attorney General consider the following 1308.14(c). During an interview, Lee- a valid prescription. The CS agreed to factors in making the public interest Richards admitted that she had been make a controlled buy of 500 tablets of determination: taking controlled substances from hydrocodone/apap (10/650 mg.) and 500 Respondent for approximately two tablets of alprazolam 2 mg. from Dyen. (1) The recommendation of the appropriate State licensing board or professional months and was giving them to her son On February 18, the CS was provided disciplinary authority. (Twane Lee), who sold them. $600 of marked currency and went to (2) The applicant’s experience in In an interview, Twane Lee admitted Respondent. Upon his arrival, the CS dispensing * * * controlled substances. that he was selling various controlled entered Respondent and paid the $600 (3) The applicant’s conviction record under substances which he obtained from his to Dyen, who then gave 500 tablets of Federal or State laws relating to the mother. Both Lee-Richards and Twane hydrocodone/apap (10/650 mg.) and 500 manufacture, distribution, or dispensing of Lee were subsequently indicted by a tablets of alprazolam 2 mg. to the CS. controlled substances. Federal Grand Jury and charged with Thereafter, detectives observed Dyen (4) Compliance with applicable State, conspiracy to possess oxycodone with leave Respondent and conducted a Federal, or local laws relating to controlled substances. the intent to distribute. traffic stop. Dyen was arrested; during a (5) Such other conduct which may threaten On February 8, 2008, local police search incident to his arrest, Dyen was the public health and safety. observed C.P. leaving Respondent found to have in his possession the $600 carrying a white plastic bag which of marked currency. Dyen was Id. § 823(f). contained several cardboard boxes. The subsequently charged under state law ‘‘[T]hese factors are considered in the police followed C.P. and initiated a with trafficking in hydrocodone and disjunctive.’’ Robert A. Leslie, M.D., 68 traffic stop, during which they found delivery of alprazolam. FR 15227, 15230 (2003). I ‘‘may rely on that C.P. had in his possession 7500 On March 14, 2008, a state search any one or a combination of factors, and tablets of oxycodone 30 mg., 200 tablets warrant was executed at Respondent. may give each factor the weight [I] of alprazolam 2 mg., and 100 tablets of During the search, investigators deem[] appropriate in determining oxycodone 80 mg. C.P. told the police interviewed Dyen, who related that his whether a registration should be he had just purchased the drugs from Ira wife owned the pharmacy. Investigators revoked.’’ Id. Moreover, I am ‘‘not Friedberg, who worked as a pharmacist subsequently determined that following required to make findings as to all of the at Respondent. C.P. also related that he his arrest, Dyen had transferred factors.’’ Hoxie v. DEA, 419 F.3d 477, had paid Friedberg $8000 for the drugs. ownership of Respondent to his wife, 482 (6th Cir. 2005); see also Morall v. C.P. cooperated with the authorities who was now listed (with the Florida DEA, 412 F.3d 165, 173–74 (D.C. Cir. and agreed to attempt to purchase Secretary of State) as Respondent’s additional drugs from Friedberg. On President. 1While carisoprodol is not controlled under Federal law, it is controlled under various state February 12, 2008, Friedberg agreed to Investigators subsequently laws and is highly popular with drug abusers, sell C.P. 7500 tablets of oxycodone 30 determined that Respondent was the especially when taken as part of a drug cocktail that mg., in exchange for $7,500. Friedberg largest purchaser of oxycodone in the includes an opiate and a benzodiazepine.

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2005). Finally, where the Government as if the pharmacy itself had been to 5:30 p.m. on January 8th, and 9 a.m. has made out its prima facie case, the convicted.’’). to 3:30 p.m. on January 9th, will be burden shifts to the Respondent to show Nor is this rule limited to those closed. why its continued registration would be instances in which a pharmacy’s owner The closed portions of meetings are consistent with the public interest. See, or key employee has been formally for the purpose of Panel review, e.g., Theodore Neujahr, 65 FR 5680, convicted of a crime. As explained discussion, evaluation, and 5682 (2000); Service Pharmacy, Inc., 61 above, under Federal law, a registration recommendations on financial FR10791, 10795 (1996). is subject to revocation when a assistance under the National In this case, having considered all of registrant commits acts which render its Foundation on the Arts and the the factors, I conclude that the evidence registration ‘‘inconsistent with the Humanities Act of 1965, as amended, with respect to factors two and four public interest.’’ 21 U.S.C. 824(a)(4). including information given in establishes a prima facie case that Where a pharmacy’s owner/key confidence to the agency. In accordance Respondent’s continued registration is employee commits criminal acts, the with the determination of the Chairman ‘‘inconsistent with the public interest.’’ Agency is not required to wait for the of February 28, 2008, these sessions will 21 U.S.C. 823(f). Accordingly, judicial process to work its course be closed to the public pursuant to Respondent’s registration will be before revoking a registration. I therefore subsection (c)(6) of section 552b of Title revoked and any pending application conclude that Respondent’s continued 5, United States Code. for renewal of its registration will be registration ‘‘is inconsistent with the Any person may observe meetings, or denied. public interest,’’ 21 U.S.C. 823(f), and portions thereof, of advisory panels that that its registration should be revoked. are open to the public, and if time Factors Two and Four—Respondent’s allows, may be permitted to participate Experience in Dispensing Controlled Order in the panel’s discussions at the Substances and Its Record of Pursuant to the authority vested in me discretion of the panel chairman. If you Compliance With Applicable need special accommodations due to a Controlled Substance Laws by 21 U.S.C. 823(f) and 824(a)(4), as well as 28 CFR 0.100(b) & 0.104, I disability, please contact the Office of As found above, the evidence in this hereby order that DEA Certificate of AccessAbility, National Endowment for matter establishes that Respondent was Registration, AY1916103, issued to Your the Arts, 1100 Pennsylvania Avenue, a supply source for the illicit drug Druggist Pharmacy, be, and it hereby is, NW., Washington, DC 20506, 202/682– market in such highly abused revoked. I further order that any 5532, TDY–TDD 202/682–5496, at least prescription drugs as oxycodone, a pending applications to renew or seven (7) days prior to the meeting. schedule II controlled substance, and modify the registration be, and they Further information with reference to alprazolam, a schedule IV controlled hereby are, denied. This Order is these meetings can be obtained from Ms. substance. As the record shows, at least effective immediately. Kathy Plowitz-Worden, Office of three individuals including Guidelines & Panel Operations, National Respondent’s owner unlawfully Dated: December 2, 2008. Endowment for the Arts, Washington, distributed prescription controlled Michele M. Leonhart, DC 20506, or call 202/682–5691. substances which had been obtained by Deputy Administrator. Dated: December 9, 2008. the pharmacy. See 21 U.S.C. 841(a)(1). [FR Doc. E8–29407 Filed 12–11–08; 8:45 am] Kathy Plowitz-Worden, Even if it was the case that Lee- BILLING CODE 4410–09–P Richards (the pharmacy technician) and Panel Coordinator, Panel Operations, Friedberg (the pharmacist) had stolen National Endowment for the Arts. the drugs they were distributing, the [FR Doc. E8–29431 Filed 12–11–08; 8:45 am] NATIONAL FOUNDATION ON THE criminal acts of Stanley Dyen, BILLING CODE 7537–01–P ARTS AND THE HUMANITIES Respondent’s owner and pharmacist-in- charge, in distributing hydrocodone and National Endowment for the Arts; Arts alprazolam, provide ample support to Advisory Panel NUCLEAR REGULATORY conclude that its continued registration COMMISSION is ‘‘inconsistent with the public Pursuant to Section 10(a)(2) of the interest.’’ See VI Pharmacy, Rushdi Z. Federal Advisory Committee Act (Pub. Licensing Support System Advisory Salem, 69 FR 5584, 5585 (2004) (‘‘It is L. 92–463), as amended, notice is hereby Review Panel well settled that a pharmacy operates given that two meetings of the Arts AGENCY: U.S. Nuclear Regulatory under the control of owners, Advisory Panel to the National Council Commission. stockholders, pharmacists, * * * and if on the Arts will be held at the Nancy ACTION: Notice of renewal of the Charter any such person is convicted of a felony Hanks Center, 1100 Pennsylvania of the Licensing Support Network offense related to controlled substances, Avenue, NW., Washington, DC 20506 as Advisory Review Panel (LSNARP). grounds exists to revoke the pharmacy’s follows (ending times are approximate): registration.’’); Charles J. Gartland, State & Regional/Arts Education SUMMARY: The Licensing Support R.Ph., d.b.a. Manoa Pharmacy, 48 FR (State Arts Agency Partnership System Advisory Review Panel was 28760, 28761 (1983) (‘‘Pharmacies must Agreements/Arts Education review): established by the U.S. Nuclear operate through the agency of natural January 6–7, 2009 in Room 730. This Regulatory Commission as a Federal persons, owners or stockholders, or meeting, from 9 a.m. 10:15 a.m. and Advisory Committee in 1989. Its other key employees. When such from 12:30 p.m. to 5:30 p.m. on January purpose was to provide advice on the persons misuse the pharmacy’s 6th and from 9 a.m. to 2:30 p.m. on fundamental issues of design and registration by diverting controlled January 7th, will be open. development of an electronic substances obtained there under, and Folk & Traditional Arts/National information management system to be when those individuals are convicted as Heritage Fellowships (review of used to store and retrieve documents a result of that diversion, the nominations): January 6–9, 2009 in relating to the licensing of a geologic pharmacy’s registration becomes subject Room 716. This meeting, from 9 a.m. to repository for the disposal of high-level to revocation under 21 U.S.C. 824, just 6:30 p.m. on January 6th and 7th, 9 a.m. radioactive waste, and on the operation

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and maintenance of the system. This interested parties that it will library.presidio.gov/archive/documents/ electronic information management supplement the June 2008 Draft StandardsEvaluationMatrix.pdf. system was known as the Licensing Supplemental Environmental Impact Additionally, the Trust conducted a Support System (LSS). In November, Statement (SEIS) for the Presidio Trust series of three workshops with the 1998 the Commission approved Management Plan (PTMP) Main Post public on September 25, September 28 amendments to 10 CFR Part 2 that Update. The supplement will identify and October 2, 2008 that focused on the renamed the Licensing Support System and discuss the environmental impacts development of a preferred alternative. Advisory Review Panel as the Licensing of a preferred alternative that combines Through this public process, the Trust Support Network Advisory Review elements of alternatives previously Panel. The Licensing Support Network analyzed in the draft SEIS. has identified a preferred alternative (LSN) became available for use in 2004 that combines elements of the SUPPLEMENTARY INFORMATION: and it is anticipated that a hardware and The Trust previously analyzed alternatives, and software refresh program will be is updating the planning concept for the which will be the subject of the initiated in 2009–2010. Main Post district of the Presidio of San supplement. The Trust has elected to Membership on the Panel will Francisco (Presidio) in order to take into address the preferred alternative in a continue to be drawn from those account several proposals, including the supplement to the draft SEIS to best interests that will be affected by the use Contemporary Art Museum at the integrate and satisfy its NEPA and of the LSN, including the Department of Presidio (CAMP), the Main Post Lodge NHPA requirements. Additional Energy, the NRC, the State of Nevada, and the Presidio Theatre, that were not information on the preferred alternative the National Congress of American fully contemplated in the 2002 PTMP is available at http://www.Presidio.gov and its final environmental impact Indians, affected units of local (click on Presidio Trust Identifies a statement. The updated planning governments in Nevada, the Nevada Preferred Alternative). Interested parties Nuclear Waste Task Force, and a concept for the Main Post was evaluated as the proposed action in the draft SEIS wishing to provide comments on the coalition of nuclear industry groups. previously analyzed alternatives or the Federal agencies with expertise and that was circulated on June 13, 2008 (73 FR 33814). merits of the draft SEIS may continue to experience in electronic information do so, or wait until the supplement is management systems may also Concurrent with the draft SEIS made available. participate on the Panel. analyses, the Trust is also providing for The Nuclear Regulatory Commission the review of the proposals under other The Trust will file the supplement as has determined that renewal of the federal environmental laws. Chief a draft and will circulate it at the same charter for the LSNARP until December among these is the consultation process time that a revised draft FOE will be 5, 2010, is in the public interest in required by section 106 of the National circulated through the parallel NHPA connection with duties imposed on the Historic Preservation Act (NHPA). This section 106 consultation process. The Commission by law. This action is being process identifies the historic resources availability of the supplement (expected taken in accordance with the Federal that may be affected by an undertaking, to occur in early 2009) for public and Advisory Committee Act after assesses the effects on historic resources agency review and comment will be consultation with the Committee through a Finding of Effect (FOE), and announced through an EPA-published Management Secretariat, General then explores ways to ‘‘avoid, minimize, notice in the Federal Register, in the Services Administration. or mitigate’’ the effects identified in the Trust’s regular electronic newsletter FOR FURTHER INFORMATION CONTACT: FOE. The draft FOE was circulated for (Presidio E-news), on the Trust web site, Andrew L. Bates, Office of the Secretary, comment on August 8, 2008. The draft as well as direct mailing to the project U.S. Nuclear Regulatory Commission, SEIS and draft FOE are available at mailing list and other appropriate Washington, DC 20555: Telephone 301– http://www.Presidio.gov in the Major means. Both the draft supplement and 415–1963. Projects section. the revised draft FOE will be considered Dated: December 8, 2008. Following the release of the draft SEIS in a final SEIS before the Trust Board of Andrew L. Bates, and the draft FOE, the Trust has been Directors takes any action (no earlier working with the National Park Service, Advisory Committee Management Officer. than 30 days after release of the final the State Historic Preservation Officer, SEIS). [FR Doc. E8–29449 Filed 12–11–08; 8:45 am] and the Advisory Council on Historic BILLING CODE 7590–01–P Preservation to develop approaches that FOR FURTHER INFORMATION CONTACT: John would avoid, minimize, or mitigate Pelka, 415.561.5300. effects from the various proposals on the Dated: December 8, 2008. PRESIDIO TRUST National Historic Landmark District. Karen A. Cook, These approaches include ways to Presidio Trust Management Plan Main reduce building size, scale, and mass; General Counsel. Post Update Supplemental ways to orient the buildings to the site; [FR Doc. E8–29447 Filed 12–11–08; 8:45 am] Environmental Impact Statement and ways to articulate the buildings BILLING CODE 4310–4R–P AGENCY: The Presidio Trust. with architectural features. The Trust ACTION: Notice of Intent to Prepare a shared the results of this work with the Supplement to a Draft Environmental consulting parties in the NHPA Impact Statement. consultation and the proponents’ respective design teams, and also held SUMMARY: Pursuant to section 102(2)(c) a public workshop on November 19, of the National Environmental Policy 2008 to communicate these conforming Act (NEPA) of 1969, as amended (Pub. strategies to interested individuals. The L. 91–190, 42 U.S.C. 4321 et seq.) and information, presented as a series of in response to public comment, the matrices, is available for public review Presidio Trust (Trust) is notifying on the Trust Web site at http://

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SECURITIES AND EXCHANGE provides notice of the proposed rule failures to provide annual financial COMMISSION change as modified by Amendment No. information on or before the date 1 and approves the proposed rule specified in the written undertaking.12 [Release No. 34–59061; File No. SR–MSRB– 2008–05] change, as amended, on an accelerated Annual filings, material event notices, basis.7 and failure to file notices generally are referred to as ‘‘continuing disclosure Self-Regulatory Organizations; II. Description of the Proposed Rule documents.’’ Municipal Securities Rulemaking Change Board; Notice of Filing of Amendment The proposed rule change would No. 1 and Order Granting Accelerated Under Rule 15c2–12(b)(5), an establish, as a component of EMMA, the Approval of Proposed Rule Change, as underwriter for a primary offering of continuing disclosure service for the Modified by Amendment No. 1 Thereto, municipal securities subject to the Rule receipt of, and for making available to Relating to the Establishment of a currently is prohibited from the public, continuing disclosure Continuing Disclosure Service of the underwriting the offering unless the documents and related information to Electronic Municipal Market Access underwriter has determined that the be submitted by issuers, obligated 8 System (EMMA) issuer or an obligated person for whom persons and their agents pursuant to financial information or operating data continuing disclosure undertakings December 5, 2008. is presented in the final official entered into consistent with Rule 15c2– statement has undertaken in writing to 13 I. Introduction 12. As proposed, all continuing provide certain items of information to On July 29, 2008, the Municipal the marketplace.9 Rule 15c2–12(b)(5) of the security; modifications to rights of security Securities Rulemaking Board (‘‘MSRB’’ provides that such items include: (A) holders; bond calls; defeasances; release, or ‘‘Board’’) filed with the Securities Annual financial information substitution, or sale of property securing repayment of the securities; and rating changes. and Exchange Commission 10 concerning obligated persons; (B) 12 Under current Rule 15c2–12(b)(5)(i), (‘‘Commission’’), pursuant to Section audited financial statements for participating underwriters must reasonably 19(b)(1) of the Securities Exchange Act obligated persons if available and if not determine whether the issuer has undertaken to of 1934 (‘‘Act’’),1 and Rule 19b–4 included in the annual financial send annual filings to all existing nationally thereunder,2 a proposed rule change to recognized municipal securities information information; (C) notices of certain repositories (‘‘NRMSIRs’’) and any applicable state establish a continuing disclosure service events, if material; 11 and (D) notices of information depositories (‘‘SIDs’’), while the (the ‘‘continuing disclosure service’’) of undertaking with respect to material event notices the MSRB’s Electronic Municipal Secretary, Commission, dated November 24, 2008 and failure to file notices must provide that they be Market Access system (‘‘EMMA’’). The (‘‘MSRB Response Letter’’). sent to all existing NRMSIRs or to the MSRB, as 7 On August 7, 2008, the Commission published well as to any applicable SID. Under the Rule 15c2– proposed rule change was published for 12 Amendments adopted today, participating comment in the Federal Register on for comment in the Federal Register proposed amendments to Rule 15c2–12 that relate to the underwriters must reasonably determine whether 3 August 7, 2008. The Commission MSRB’s implementation of the continuing the issuer has undertaken to send continuing received eighteen comment letters disclosure service. See Securities Exchange Act disclosure documents to the MSRB. See Rule 15c2– Release No. 58255 (July 30, 2008), 73 FR 46138 12 Amendments Adopting Release, supra note 7. regarding the MSRB’s proposed rule The MSRB, which currently operates CDINet to 4 (August 7, 2008) (‘‘Release No. 34–58255’’). In a change. On November 5, 2008, the separate release issued today, the Commission is process and disseminate notices of material events MSRB filed Amendment No. 1 to the approving its proposed amendments to Rule 15c2– submitted to the MSRB, previously petitioned the proposed rule change.5 The text of 12 (‘‘Rule 15c2–12 Amendments’’). See Securities Commission to amend Rule 15c2–12 to remove the MSRB as a recipient of material event notices due Amendment No. 1 is available on the Exchange Act Release No. 59062 (December 5, 2008) (‘‘Rule 15c2–12 Amendments Adopting to the very limited level of submissions received by MSRB’s Web site (http://www.msrb.org), Release’’). the MSRB, constituting a negligible percentage of material event notices currently provided to the at the MSRB’s principal office, and at 8 Rule 15c2–12(f)(10) defines ‘‘obligated person’’ marketplace. See Letter from Diane G. Klinke, the Commission’s Public Reference as any person, including an issuer of municipal General Counsel, MSRB, to Jonathan G. Katz, securities, who is either generally or through an Room. On November 24, 2008, the Secretary, Commission, dated September 8, 2005. In enterprise, fund, or account of such person MSRB submitted a letter responding to 2006, the Commission published proposed committed by contract or other arrangement to 6 amendments to Rule 15c2–12 to eliminate the the comment letters. This order support payment of all or part of the obligations on MSRB as a repository for material event notices. See the municipal securities sold in a primary offering Exchange Act Release No. 54863 (December 4, 1 (other than providers of bond insurance, letters of 15 U.S.C. 78s(b)(1). 2006), 71 FR 71109 (December 8, 2006) (‘‘2006 2 credit, or other liquidity facilities). 17 CFR 240.19b–4. Proposed Rule 15c2–12 Amendments’’). In light of 9 3 See Securities Exchange Act Release No. 58256 See also Rule 15c2–12(d)(2), which provides for the Rule 15c2–12 Amendments and this proposal, (July 30, 2008), 73 FR 46161 (August 7, 2008) an exemption from the requirements of paragraph the MSRB has determined to withdraw its petition (‘‘Release No. 34–58256’’). (b)(5) of Rule 15c2–12. and has requested that the Commission withdraw 4 Exhibit A contains the citation key to the 10 Rule 15c2–12(f)(9) defines ‘‘annual financial the 2006 Proposed Rule 15c2–12 Amendments. See comments noted herein. Copies of the comment information’’ as financial information or operating Letter from Ernesto A. Lanza, General Counsel, letters received by the Commission are available on data, provided at least annually, of the type MSRB to Florence E. Harmon, Acting Secretary, the Commission’s Internet Web site, located at included in the final official statement with respect Commission, dated October 22, 2008. In this letter, http://www.sec.gov/comments/sr–msrb–2008–05/ to an obligated person, or in the case where no the MSRB also noted its intention to file a proposed msrb200805.shtml and in the Commission’s Public financial information or operating data was rule change with the Commission to discontinue Reference Room at its Washington, DC provided in the final official statement with respect CDINet since its functions would be replaced by the headquarters. to such obligated person, of the type included in continuing disclosure component of EMMA. 5 In Amendment No. 1, the MSRB proposed to the final official statement with respect to those 13 EMMA was originally established, and began establish as the operative date of the continuing obligated persons that meet the objective criteria operation on March 31, 2008, as a complementary disclosure service the later of July 1, 2009 or the applied to select the persons for which financial pilot facility of the MSRB’s existing Official effective date of any amendments to Rule 15c2–12 information or operating data will be provided on Statement and Advance Refunding Document (OS/ under the Act (‘‘Rule 15c2–12’’ or ‘‘Rule’’), 17 CFR an annual basis. ARD) system of the Municipal Securities 240.15c2–12, that provide for the MSRB to serve as 11 Under Rule 15c2–12(b)(5)(C), such events Information Library (MSIL) system. See Securities the sole repository for continuing disclosure currently consist of principal and interest payment Exchange Act Release No. 57577 (March 28, 2008), documents, and to establish January 1, 2010 as the delinquencies; non-payment related defaults; 73 FR 18022 (April 2, 2008) (File No. SR–MSRB– date on which submitters to the continuing unscheduled draws on debt service reserves 2007–06) (approving operation of the EMMA pilot disclosure service would be required to submit reflecting financial difficulties; unscheduled draws to provide free public access to the MSRB’s documents as word-searchable portable document on credit enhancements reflecting financial Municipal Securities Information Library (MSIL) format (PDF) files. difficulties; substitution of credit or liquidity system collection of official statements and advance 6 See Letter from Ernesto A. Lanza, General providers, or their failure to perform; adverse tax refunding documents and to the MSRB’s Real-Time Counsel, MSRB, to Florence E. Harmon, Acting opinions or events affecting the tax-exempt status Transaction Reporting System (RTRS) historical and

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disclosure documents and related function available in most standard EMMA on-line account management information would be submitted to the software packages), provided that utility, would be able to revoke the MSRB, free of charge, through an diagrams, images and other non-textual authority of such party to act as a Internet-based electronic submitter elements would not be required to be designated agent. interface or electronic computer-to- word-searchable due to current The MSRB proposed that electronic computer data connection, at the technical hurdles to uniformly submissions of continuing disclosure election of the submitter, and public producing such elements in word- documents through the continuing access to the documents and searchable form without incurring disclosure service would be made by information would be provided through undue costs.15 Although the MSRB issuers, obligated persons and their the continuing disclosure service on the would strongly encourage submitters to agents, at no charge, through secured, Internet (‘‘EMMA portal’’) at no charge, immediately begin making submissions password-protected interfaces. as well as through a fee-based real-time as word-searchable PDF files (preferably Continuing disclosure submitters would data stream subscription service.14 as native PDF or PDF normal files, have a choice of making submissions to As proposed, the continuing which generally produce smaller and the proposed continuing disclosure disclosure service would accept more easily downloadable files as service either through a Web-based submissions of (i) continuing disclosure compared to scanned PDF files), electronic submission interface or documents as described in Rule 15c2– implementation of this requirement through electronic computer-to- 12, and (ii) other disclosure documents would be deferred as noted above to computer data connections with EMMA specified in continuing disclosure provide issuers, obligated persons and that would be designed to receive undertakings entered into consistent their agents with sufficient time to adapt submissions on a bulk or continuous with Rule 15c2–12 but not specifically their processes and systems to provide basis. described in Rule 15c2–12. In for the routine creation or conversion of All documents and information connection with documents submitted continuing disclosure documents as submitted through the continuing to the continuing disclosure service, the word-searchable PDF files. disclosure service would be available to submitter would provide, at the time of All submissions to the continuing the public at no charge through the submission, information necessary to disclosure service pursuant to this EMMA portal on the Internet, with accurately identify: (i) The category of proposal would be made through documents made available for the life of information being provided; (ii) the password-protected accounts on EMMA the securities as PDF files for viewing, period covered by any annual financial by: (i) Issuers, which may submit any printing and downloading. As proposed, information, financial statements or documents with respect to their the EMMA portal would provide on-line other financial information or operating municipal securities; (ii) obligated search functions to enable users to data; (iii) the issues or specific securities persons, which may submit any readily identify and access documents to which such document is related or documents with respect to any that relate to specific municipal otherwise material (including CUSIP municipal securities for which they are securities based on a broad range of number, issuer name, state, issue obligated; and (iii) designated agents, search parameters. In addition, as noted description/securities name, dated date, which may be designated by issuers or above, the MSRB proposes that real-time maturity date, and/or coupon rate); (iv) obligated persons to make submissions data stream subscriptions to continuing the name of any obligated person other on their behalf. Issuers and obligated disclosure documents submitted to than the issuer; (v) the name and date persons would be permitted under the EMMA would be made available for a of the document; and (vi) contact proposal to designate agents to submit fee.16 The MSRB would not be information for the submitter. documents and information on their responsible for the content of the Submitters would be responsible for the behalf, and would be able to revoke the information or documents submitted by accuracy and completeness of all designation of any such agents, through submitters displayed on the EMMA documents and information submitted the EMMA on-line account management portal or distributed to subscribers to EMMA. utility. Such designated agents would be through the continuing disclosure The MSRB proposed that submissions required to register to obtain password- subscription service. to the continuing disclosure service be protected accounts on EMMA in order According to the MSRB, it has made as portable document format to make submissions on behalf of the designed EMMA, including the EMMA (PDF) files configured to permit designating issuers or obligated persons. portal, as a scalable system with documents to be saved, viewed, printed Any party identified in a continuing sufficient current capacity and the and retransmitted by electronic means. disclosure undertaking as a ability to add further capacity to meet If the submitted file is a reproduction of dissemination agent or other party foreseeable usage levels based on the original document, the submitted responsible for disseminating reasonable estimates of expected usage, file must maintain the graphical and continuing disclosure documents on and the MSRB would monitor usage textual integrity of the original behalf of an issuer or obligated person levels in order to assure continued document. In addition, as of January 1, would be permitted to act as a capacity in the future. 2010, the MSRB would require that such designated agent for such issuer or The MSRB may restrict or terminate PDF files must be word-searchable (that obligated person, without a designation malicious, illegal or abusive usage for is, allowing the user to search for being made by the issuer or obligated such periods as may be necessary and specific terms used within the person as described above, if such party appropriate to ensure continuous and document through a search or find certifies through the EMMA on-line efficient access to the EMMA portal and account management utility that it is to maintain the integrity of EMMA and real-time transaction price data) (‘‘pilot EMMA authorized to disseminate continuing its operational components. Such usage portal’’). The pilot EMMA portal currently is disclosure documents on behalf of the may include, without limitation, usage accessible at http://emma.msrb.org. issuer or obligated person under the 14 We note that the MSRB is required to file with continuing disclosure undertaking. The 16 We note that the MSRB is required to file with the Commission a proposed rule change under the Commission a proposed rule change under Section 19(b) of the Act with respect to any fees it issuer or obligated person, through the Section 19(b) of the Act with respect to any fees it intends to charge subscribers in connection with a intends to charge subscribers in connection with a real-time data stream subscription service. 15 See Amendment No. 1, supra note 5. real-time data stream subscription service.

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intended to cause the EMMA portal to and, in particular, the requirements of of an electronic submission process. become inaccessible by other users; to Section 15B(b)(2)(C) of the Act 23 and Similarly, a single centralized and cause the EMMA database or the rules and regulations thereunder. In searchable venue that provides for free operational components to become particular, the Commission finds that public access to disclosure information corrupted or otherwise unusable; to the proposal to establish the continuing should promote a more fair and efficient alter the appearance or functionality of disclosure service will remove municipal securities market in which the EMMA portal; or to hyperlink to or impediments to and help perfect the transactions are effected on the basis of otherwise use the EMMA portal or the mechanisms of a free and open market information available to all parties to information provided through the in municipal securities, assist in such transactions, which should assist EMMA portal in furtherance of preventing fraudulent and manipulative investors in having a more complete fraudulent or other illegal activities acts and practices, and, in general, will understanding of the terms of the (such as, for example, creating any protect investors and the public interest securities and the potential investment inference of MSRB complicity with or by improving access to continuing risks. Access to this information without approval of such fraudulent or illegal disclosure documents by investors and charge, which was previously available activities or creating a false impression market participants, enabling them to in most cases only through paid that information used to further such make informed investment decisions subscription services or on a per- fraudulent or illegal activities has been regarding municipal securities. document fee basis, also should help obtained from the MSRB or EMMA). The Commission believes that the reduce informational costs for broker- Measures taken by the MSRB in MSRB’s proposed continuing disclosure dealers and municipal securities response to such unacceptable usage service will serve as an additional dealers, as well as other market would be designed to minimize any mechanism to remove impediments to participants, analysts, retail and potentially negative impact on the and help perfect the mechanisms of a institutional investors and the public ability to access the EMMA portal. free and open market in municipal generally. These changes are expected to The Commission received eighteen securities. The continuing disclosure further the objectives of Rule 15c2–12 of comment letters regarding the proposed service will help make information reducing the potential for fraud in the 17 rule change. Fifteen commenters more easily available to all participants municipal securities market. generally supported the proposed rule in the municipal securities market on an Indeed, we anticipate that the 18 change and many of these commenters equal basis and without charge through accessibility of documents through the also provided various observations and a centralized, searchable Internet-based repository will greatly benefit dealers in suggestions. Two commenters, both of repository, thereby removing potential satisfying their obligation to have a which are NRMSIRs, opposed the barriers to obtaining such information. reasonable basis for investment proposed rule change and suggested Broad availability of continuing recommendations and other regulatory alternative approaches to achieving the disclosure documents through the 19 responsibilities, in addition to investors Commission’s objectives. One continuing disclosure service should and other market participants who seek commenter neither supported nor assist in preventing fraudulent and information about municipal securities. opposed the proposal and addressed manipulative acts and practices by 20 This conclusion is supported by various CUSIP licensing issues. The improving the opportunity for investors commenters. Commission also received the MSRB’s to obtain information about issuers and 21 As noted above, commenters response to the comment letters. their securities, and help investors make generally supported the proposed rule These comment letters, as well as the informed investment decisions. change. In particular, one commenter MSRB’s response to the comment The continuing disclosure service also expressed the opinion that allowing letters, are more fully discussed below. should reduce the effort necessary for issuers and obligated persons to comply issuers, obligated parties and III. Discussion and Commission dissemination agents to submit with their continuing disclosure 25 Findings undertakings because submissions will information to one location, The Commission has carefully be made to a single venue 24 through use electronically and free of charge in order considered the proposed rule change, to meet the obligations of Rule 15c2–12, the comment letters received, and the proposed rule’s impact on efficiency, competition is very useful to the state and local MSRB’s response to the comment letters and capital formation. 15 U.S.C. 78c(f). government community 26 and several and finds that the proposed rule change 23 15 U.S.C. 78o–4(b)(2)(C). Section 15B(b)(2)(C) commenters remarked that allowing of the Act requires, among other things, that the investors to retrieve information from is consistent with the requirements of MSRB’s rules be designed to prevent fraudulent and the Act and the rules and regulations manipulative acts and practices, to promote just this location would be advantageous to 27 thereunder applicable to the MSRB 22 and equitable principles of trade, to foster the marketplace and investors. cooperation and coordination with persons engaged Commenters believed that the single in regulating, clearing, settling, processing 17 See supra note 4. filing location would make the filing information with respect to, and facilitating 18 See Busby Letter, DAC Letter, Vanguard Letter, transactions in municipal securities, to remove process easier for filers submitting GFOA Letter, e-certus Letter, SIFMA Letter, NABL impediments to and perfect the mechanism of a free filings and more efficient for investors Letter, Treasurer of the State of Connecticut Letter, and open market in municipal securities, and, in accessing documents.28 One commenter Texas MAC Letter, OMAC Letter, ICI Letter, general, to protect investors and the public interest; also remarked that the availability of NAHEFFA Letter, EDGAR Online Letter, MSRB and not be designed to impose any burden on Letter, and NFMA Letter. competition not necessary or appropriate in continuing disclosure documents in one 19 See SPSE Letter and DPC DATA Letter. furtherance of the purposes of the Act. venue as a component of EMMA, where 20 See ABA Letter. 24 Some states may require issuers and/or there will also be posted the final 21 See MSRB Response Letter. A copy of the obligated persons to submit disclosure information official statement (or similar primary MSRB Response Letter is available on the to state information depositories (‘‘SIDs’’) or other Commission’s Internet Web site at http:// venues pursuant to state law. However, under the 25 www.sec.gov/comments/sr-msrb-2008-05/ Rule 15c2–12 Amendments, participating See id. msrb200805.shtml and in the Commission’s Public underwriters no longer need to reasonably 26 See GFOA Letter. Reference Room at its Washington, DC determine that issuers and/or obligated persons 27 See, e.g., GFOA Letter, SIFMA Letter, Vanguard headquarters. have undertaken to provide continuing disclosure Letter, Treasurer of the State of Connecticut Letter, 22 In approving this proposed rule change, the documents to SIDs. See Rule 15c2–12 Amendments ICI Letter. Commission notes that it has considered the Adopting Release, supra note 7. 28 Id.

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market disclosure document), and commenters suggested various specific MSRB, since all continuing disclosure pricing information, will provide types of identifiers that were sometimes documents submitted to EMMA will be readers the benefit of the proper context different from, or in addition to, those made through a unique, password for reviewing the continuing set forth in the proposed rule change. In protected accounts by issuers, obligated disclosure.29 Others expressed support this regard, specific identifiers that were persons and their designated agents, for the MSRB’s proposal to make the suggested by commenters included: The once the indexing information is continuing disclosure service a free identification of obligated persons other provided, the EMMA system will match service for both issuers and other than issuers and successor parties; 38 the each document with the appropriate obligated persons 30 submitting issuer’s investor contact information; 39 identifying information for the documents as well as for investors and a link to issuer’s Web site; 40 the CUSIP submitter. The MSRB believes that these other market participants 31 accessing numbers for all primary and secondary processes will adequately address issues continuing disclosure information. One market debt covered by relevant relating to the use of identifiers for the commenter expressed a belief that the information; 41 the use of electronic submission process. The MSRB also proposed rule change would be a means ‘‘cover sheets;’’ 42 the pre-registration of believes that the use of these identifiers of removing impediments to and identifying information; 43 a mechanism ensures both that the submission helping to perfect the mechanisms of a to readily locate CUSIP numbers by the process is not unduly burdensome and free and open market in municipal issuer’s six digit prefix and at the same that standardized market identifiers securities within the meaning of the time list by nine digit CUSIPs in certain commonly used in the municipal Act.32 circumstances; 44 and a CUSIP catalog.45 marketplace serve as the basis on which One commenter recommended that In its response letter, the MSRB noted EMMA users would be able to conduct the Commission maintain close that the use of accurate identifiers for document searches. Furthermore, while oversight of EMMA, ensure proper continuing disclosure submissions in the MSRB believes that the identifiers it testing of the system, and revisit this EMMA is vitally important to ensure proposed are appropriate and cover matter in two to three years.33 A second correct indexing and access to most of the identifying elements commenter also expressed a belief that continuing disclosure documents.46 The recommended by the commenters, the the Commission should establish MSRB indicated that, except as noted MSRB also will consider whether any rigorous ongoing inspection and below,47 documents provided to it are additional identifiers would be oversight of EMMA.34 We note that, required to be accompanied by appropriate. The Commission believes because the MSRB is a self-regulatory identifying information relating to the that it is appropriate for the MSRB to organization (‘‘SRO’’), the Commission nature of the document, the securities incorporate without change in the has, and exercises, oversight authority and entities to which it applies, and the continuing disclosure service the over the MSRB. The MSRB must file entity making the submission, as indexing information that the MSRB proposed rule changes with the prescribed by the MSRB. In connection initially had proposed. The Commission Commission under Section 19(b) of the with EMMA submissions, the MSRB believes that the MSRB has provided Act, including any changes to the noted that the submitter will be required valid reasons for not incorporating at EMMA system and any fees relating to to provide, at the time of submission, this time the additional indexing the EMMA system. In addition, the information necessary to correctly information that commenters suggested. MSRB is subject to the recordkeeping identify the following: The category of As the MSRB noted, the proposed requirements of 17(a) of the Act 35 and information being provided; the period identifiers are standardized market is subject to the Commission’s covered by any financial information; identifiers used in the municipal examination authority under Section the issues or specific securities to which marketplace, which should help ensure 17(b) of the Act.36 Through the such document is related or otherwise that the transition to the continuing Commission’s recordkeeping material (including CUSIP number, disclosure service will not be unduly requirements and examination and rule issuer name, state issue description, burdensome for submitters. We note, filing processes, the Commission securities name, dated date, maturity however, that the MSRB indicated that oversees the MSRB and will ascertain date and/or coupon rate); the name of it will consider additional identifiers in whether the MSRB is implementing any obligated person other than the the future.49 EMMA appropriately and meeting issuer; the name and date of the One commenter, who neither EMMA’s stated objectives, as well as document; and the contact information supported nor opposed the proposal, complying with all of its legal for the submitter.48 According to the questioned whether the MSRB would obligations under the Act. seek appropriate licensing for its use of Eleven commenters that supported MAC Letter, OMAC Letter, ICI Letter, and EDGAR the commenter’s intellectual property Online Letter. the proposed rule change also believed rights with respect to the CUSIP that EMMA submissions should be 38 See GFOA Letter, Treasurer of the State of Connecticut Letter, Vanguard Letter, and ICI Letter. accompanied by identifying 39 See NFMA Letter. documents pursuant to the terms of undertakings 37 information. Several of these 40 Id. that were entered into prior to the effective date of 41 Id. the final amendments and that did not require 29 See SIFMA Letter. 42 See GFOA Letter. identifying information will be able to submit 30 documents without supplying identifying See GFOA Letter. 43 See Treasurer of the State of Connecticut Letter. information. In its response, the MSRB indicated 31 See, e.g., GFOA Letter, Busby Letter, NFMA 44 Id. that the submitter making a submission pursuant to Letter, DAC Letter, Vanguard Letter, and EDGAR 45 See NFMA Letter. Online Letter. a continuing disclosure undertaking entered into 46 See MSRB Response Letter. prior to the effective date of the proposed Rule 32 See SIFMA Letter. 47 See infra note 48. 15c2–12 amendments who seeks to make such 33 See Treasurer of the State of Connecticut Letter. 48 As the Commission noted in its adopting submission without providing identifying 34 See DAC Letter. release for amendments to Rule 15c2–12 [Release information could do so. 35 15 U.S.C. 78q(a). No. 34–59062; File No. S7–21–08, December 5, 49 We note that the MSRB is required to file with 36 15 U.S.C. 78q(b). 2008], the commitment by an issuer to provide the Commission a proposed rule change under 37 See NFMA Letter, DAC Letter, GFOA Letter, identifying information exists only if it were Section 19(b) of the Act with respect to any Vanguard Letter, SIFMA Letter, NABL Letter, included in a continuing disclosure agreement. As additional indexing information that it may propose Treasurer of the State of Connecticut Letter, Texas a result, issuers submitting continuing disclosure to prescribe.

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database.50 The MSRB stated in its Commission believes the MSRB has conduit borrowers to access EMMA.62 response letter that it is continuing its proposed a reasonably efficient way to Three commenters stated that issuers discussions with the appropriate parties apply identifying fields to the and obligated persons should have the relating to the use of CUSIP data and continuing disclosure documents ability to verify information submitted expects that all necessary arrangements submitted to the EMMA system and to EMMA by third parties and to correct will be in place to operate the expects that the MSRB will continue to errors either by accessing the system continuing disclosure service as monitor the EMMA portal to ensure that directly or by reporting any errors to a anticipated by the July 1, 2009 document submission is easy and ‘‘hotline.’’ 63 implementation date.51 If there are any document access is efficient on an The MSRB noted in its response letter unanticipated and unresolved issues in ongoing basis and that the MSRB will that its proposal does not change the connection with the use of the CUSIP propose rule changes to the continuing obligations of issuers or obligated data, the MSRB stated that it will disclosure service pursuant to Section persons and their designated agents, consult with the Commission and, if 19(b) of the Act as changes are needed.56 which are established pursuant to the terms of continuing disclosure necessary, make any filings to modify Some commenters expressed concerns agreements, and that all persons, data usage by EMMA or to adjust the that access to previous filings made including issuers, obligated persons and implementation date. In light of the with NRMSIRs may no longer be designated agents will be able to access MSRB’s assurances that this issue is available.57 Nothing in the MSRB’s filings on EMMA to verify their expected to be resolved in advance of proposal will prevent the NRMSIRs the continuing disclosure service’s availability and the accuracy of their from continuing to make historical indexing. The MSRB also noted that all proposed implementation date of July 1, information available. We recognize, 2009, the Commission does not believe submission methods will provide however, that the NRMSIRs may decide appropriate feedback to submitters for that it is necessary to delay its approval not to do so. The MSRB stated in its of the proposed rule change. error correction and submission response letter that while it does not confirmation purposes. The MSRB also Nonetheless, we will continue to have the authority to mandate the monitor the progress of EMMA, provides a Web site that allows submission of historical data by issuers, submitters to provide questions and including the issue relating to licensing issuers, obligated persons and their rights to the CUSIP database, prior to comments associated with submissions, agents will be free to submit to EMMA as well as a help desk with dedicated EMMA’s implementation. continuing disclosure documents and Some commenters expressed their personnel during MSRB business hours. related information previously Furthermore, the proposal will allow belief that EMMA should have a simple 58 submitted to the NRMSIRs. The MSRB issuers and obligated persons to user interface and intuitive search also stated that it is willing to 52 maintain control over those persons functionality. One commenter noted communicate with the NRMSIRs on the that ‘‘[a]s demonstrated, we believe that who may submit filings on their behalf. continued availability of historical The MSRB will permit only those there are ample ways for the public to documents and related information and locate particular documents, either persons identified as designated agents believes that such communication will in continuing disclosure agreements to through a CUSIP number or an entity’s be fruitful.59 As a practical matter, we name. It is imperative for these fields to submit documents without advance believe that this is largely a transitional approval through EMMA and will notify be applied to all securities and for the issue until EMMA has collected MSRB to determine the most efficient issuers of the identity of those persons documents for a number of years and who submit documents on their behalf. way to do so.’’ 53 The MSRB stated its anticipate that requests for such Issuers and obligated persons also will belief that its pilot of the primary documents from the NRMSIRs by those be able to revoke self-certification of market service of the EMMA portal is persons who are not already subscribers dissemination agents through the user-friendly and that the continuing to their services may be expected to EMMA on-line account management disclosure service of EMMA will also be decline over time. utility at any time. user-friendly, in part, because the With respect to conduit financings,64 continuing disclosure service will Several commenters also made observations and suggestions regarding two commenters 65 expressed concern provide the same accessibility to that EMMA does not appropriately information to municipal market the access and security features of the continuing disclosure service.60 One accommodate issues relating to the real participants and easy-to-use identifiers parties in interest in such financings. In for submissions as currently provided commenter suggested that the MSRB should distinguish between the conduit financings, the bond issuing by the pilot of the primary market authority (e.g., a state or local service of the EMMA portal. For responsibilities of obligated persons and 61 government) may issue tax exempt example, if users have a CUSIP number, submitters. Two commenters recommended a special methodology for bonds on behalf of certain entities (e.g., they will be able to go directly to the not-for profit organizations). Under related documents on the EMMA system these arrangements, the entity for which and, similarly, a user can go to the 56 We note that the MSRB is required to file with the Commission a proposed rule change under the tax exempt bonds were issued may market activity page and see all the Section 19(b) of the Act with respect to the be regarded as the real obligated party disclosures that were posted on a operation of the continuing disclosure service and with the responsibility of submitting 54 certain date. The MSRB also noted its with respect to any changes to the continuing continuing disclosure documents and intention to continue to make disclosure service. 57 ensuring that such submissions are improvements to the system.55 The See, e.g., Vanguard Letter and ICI Letter. 58 See MSRB Response Letter. 59 As discussed more fully in the Rule 15c2–12 62 See NAHEFFA Letter and GFOA Letter. 50 See ABA Letter. Amendments Adopting Release, the Commission 63 See NAHEFFA Letter, GFOA Letter, NFMA 51 See MSRB Response Letter. believes that the current NRMSIRs could decide it Letter. 52 See EDGAR Online Letter, NFMA Letter and is in their commercial interest to make historical 64 Conduit financings are financings in which GFOA Letter. information available. authorities with bond issuing authority issue tax- 53 See GFOA Letter. 60 See NABL Letter, NAHEFFA Letter, GFOA exempt bonds on behalf of certain entities, 54 See MSRB Response Letter. Letter, and NFMA Letter. including not-for profit organizations. 55 Id. 61 See NABL Letter. 65 See NAHEFFA Letter and NFMA Letter.

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accurate. Accordingly, these MSRB stated that although the be filed with the Commission as a commenters expressed concern that continuing disclosure service will not proposed rule change under Section EMMA will not appropriately allow for the submission of continuing 19(b) of the Act. Accordingly, any fees discriminate whether the bond issuing disclosure documents beyond those relating to the continuing disclosure authority, or the certain entity on behalf currently set forth in Rule 15c2–12 or service would be published for public of which the tax-exempt bonds are those documents identified in an comment by the Commission and issued, is responsible for the continuing undertaking by the issuer or obligated interested persons would have the disclosure submissions. The MSRB person, the MSRB expects to propose in opportunity to offer their views on responded that the proposal establishes, a future filing to accept submissions of them. through the account opening process, a a broader scope.71 The Commission With respect to the comment that mechanism that would permit, on an believes that limiting the scope of the broker-dealers would pass on fees to optional basis, issuers of conduit documents to be submitted through the their customers to support the EMMA financings to identify obligated persons continuing disclosure service to those system, the Commission again notes that and the securities for which such referenced in continuing disclosure the MSRB, as an SRO, would have to 66 persons are obligated. Furthermore, agreements will fulfill the intended file any fees relating to the support or the MSRB plans to establish methods for purpose of Rule 15c2–12 and thus is use of the continuing disclosure service submitters to contact it with questions reasonable at this time. with the Commission under Section and to report any problems submitters One commenter expressed support for 19(b) of the Exchange Act, to the extent may discover with filings they the dissemination of information in a such fees are not already covered by the bulk format.72 Some commenters electronically send to the EMMA MSRB’s current fee schedule. The 67 expressed concerns regarding fees to be system. The Commission believes that Commission further notes that broker- charged by the MSRB for subscriptions the MSRB has established appropriate dealers currently are charged fees for to the real-time data feed and whether measures with respect to security and access to disclosure documents obtained the transfer of documents through the controls for the submission of from the NRMSIRs that they currently data feed would be delayed.73 In documents to the continuing disclosure may or may not pass on to their addition, three commenters suggested service. customers. According to the MSRB, it Some commenters that supported the that the MSRB should provide SIDs presently anticipates no increase in fees proposed rule change suggested with a data feed of filing information on brokers, dealers, and municipal incorporation of an interactive data and one of these commenters stated that standard (i.e., XBRL).68 The MSRB this data feed should be provided free securities dealers that effect transactions 74 in municipal securities to establish and responded that it will take all such of charge. Further, one commenter 79 suggestions under consideration for expressed concern that broker-dealers operate the EMMA system. The MSRB future revisions to the continuing would pass on fees to their customers to has stated that it has funds on hand that, disclosure service. The MSRB noted, support the EMMA system.75 together with amounts it will collect in however, that documents need not be In its response letter, the MSRB stated the future under its current fee created in any particular manner in that in addition to providing access to schedule, it believes will be sufficient to order to be saved or scanned into a PDF continuing disclosure documents establish and operate the continuing format. The MSRB indicated that it does through the EMMA portal without disclosure service of the EMMA 80 not view establishing XBRL as a data charge to all persons on an equal basis system. standard for EMMA submissions as on its Internet website, the MSRB also Two commenters opposed the appropriate at this time, although it will offer real-time subscriptions to proposal and suggested alternative noted that it continues to be interested EMMA’s continuing disclosure approaches to greater access to in working with the municipal market documents and information as they are continuing disclosure documents by in the future on interactive data submitted and processed.76 According investors and others.81 They believed initiatives. The Commission believes to the MSRB, its goal is to ensure an that the MSRB’s proposal would not that, in the future, access to continuing efficient process for making available improve the overall continuing disclosure documents through the real-time data subscription products at a disclosure regime and that it does not EMMA system could be enhanced by reasonable cost.77 The MSRB also stated address the core problems with the improved methods for the electronic that it will work with the SIDs to ensure current system, such as the significant presentation of information, but believes that they will have reasonable access to level of delinquent filings. One of these that the MSRB’s technology choices for the documents submitted for issues in commenters stated that the proposal EMMA are appropriate at this time. their respective states and will not incur imposes restrictions on filing formats Seven of the commenters that costs related to the entire EMMA (i.e., single-electronic) and technology supported the proposed rule change subscription product.78 and misstates important attributes of the indicated that EMMA should have the The Commission notes that fees current municipal disclosure regime. capability to accept voluntary and non- relating to the EMMA system, such as This commenter urged enforcement of periodic disclosures in addition to Rule subscription fees for a data feed for existing provisions of Rule 15c2–12 and 15c2–12 disclosures 69 or recommended access to documents submitted to the otherwise working within the existing the addition of features such as continuing disclosure service, also must disclosure system. The other commenter information regarding late or missing believed that a ‘‘central post office’’ filings.70 In its response letter, the 71 See MSRB Response Letter. approach is preferable.82 72 See, e.g., EDGAR Online Letter. 66 See MSRB Response Letter. 73 See DPC DATA Letter, NFMA Letter and GFOA 79 See MSRB Response Letter. 67 Id. Letter. 80 Id. 74 68 See, e.g., GFOA Letter, e-certus Letter, and See Texas Mac Letter, OMAC Letter, and GFOA 81 See DPC DATA Letter and SPSE Letter. Letter. EDGAR Online Letter. 82 Under a central post office approach, issuers 75 69 See ICI Letter, NFMA Letter, NABL Letter, See SPSE Letter. and obligors would file documents through a single GFOA Letter, Vanguard Letter and SIFMA Letter, 76 See MSRB Response Letter. electronic venue in a standardized format. The Treasurer of the State of Connecticut Letter. 77 Id. central post office would then forward the 70 See, e.g., ICI Letter. 78 Id. Continued

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In its response letter, the MSRB which is less efficient and more costly, providing public access to all expressed its belief that the and will increase the potential for a continuing disclosure documents on the establishment of single submission and more complete record of continuing Internet, as provided by the proposal. dissemination venue through EMMA’s disclosure documents that otherwise We anticipate that access to all continuing disclosure service would might be misfiled or lost under a continuing disclosure documents significantly improve upon the current manual system. Furthermore, the without charge through the MSRB’s municipal disclosure system.83 The Commission believes that submissions Internet site will better promote market MSRB believed that a simple, secure in an electronic format will not be efficiency and help deter fraud and and centralized system will simplify burdensome on issuers or obligated manipulation in the municipal issuers’ submissions. According to the persons since many documents are now securities market by improving the MSRB, for example, the fact that routinely created in an electronic format availability of information to all continuing disclosure documents will and can be readily transmitted by investors. be publicly available for free through a electronic means. With respect to the Two commenters, both of which are searchable Web site in which all filings comment that the existing disclosure NRMSIRs, also raised concerns about for a particular issue are displayed as a system should be retained and the the potential adverse effects on single collection will serve, for the first existing provisions of the Rule 15c2–12 competition and raised issues about the time, to make it easy for issuers, enforced, the Commission believes that proposal’s consistency with investors and others to determine enforcement of the provisions of Rule Congressional intent regarding the whether or not filings are missing, 15c2–12 is an important mechanism for regulation of municipal securities.84 whether due to an issuer failing to make the protection of municipal securities Both of these commenters believed that a filing or otherwise. investors and the efficient operation of the proposal is contrary to Section While the Commission acknowledges the marketplace. However, the 15B(d) of the Act,85 commonly referred that the MSRB’s proposal does not Commission also believes that the to as the Tower Amendment. One of address all of the information challenges quality, timing, and availability of these commenters also expressed its of the municipal market, the disclosure in the municipal securities belief that the proposal would reduce Commission continues to believe that markets will be substantially improved current value-added products and the MSRB’s proposal is a significant by the MSRB’s proposal. services provided by existing NRMSIRs step forward in facilitating the With respect to the comment favoring and other vendors; narrow competing submission of, and access to, secondary a ‘‘central post office,’’ the Commission information services regarding market municipal disclosures. As noted believes that this approach is less likely municipal securities; and result in a loss previously, a large majority of the to make access to continuing disclosure of innovation in offering competing commenters supported the MSRB’s documents as efficient as the MSRB’s information services regarding proposal and believed that it will continuing disclosure service and municipal securities.86 This commenter improve the overall continuing therefore would not achieve the goal. also expressed its belief that the disclosure regime. The Commission also For example, with a central post office proposal is anti-competitive and would believes that this will be the case. We there would continue to be no single unfairly displace private vendors that anticipate that public access to all location to which investors, particularly have made significant investment under continuing disclosure documents on the individuals, could turn for free access to the current system with a ‘‘quasi- Internet, as provided by the proposal, information regarding municipal governmental organization’’ that is will promote market efficiency and help securities. Instead, individuals or subsidized and could provide value- deter fraud and manipulation in the entities that wish to obtain such added services for free.87 The other municipal securities market by information would find it necessary first commenter expressed a belief that the improving the availability of to access the central post office to find proposal places the MSRB in direct information to all investors. With out what documents might be available competition with commercial respect to one commenter’s concern that from NRMSIRs and SIDs and then to vendors.88 the proposal would impose restrictions contact one or more NRMSIRs or SIDs With respect to their comments on filing formats, impose technology and pay their fees to obtain the regarding competition, the MSRB requirements that do not exist under the document or documents they seek. This responded that it did not believe that current system and provide no would be a less efficient process than the proposed rule change would impose appreciable benefit, the Commission the MSRB’s proposal, in which any burden on competition that is not notes that the availability of continuing interested persons could directly access, necessary or appropriate in furtherance disclosure documents at a single view and print for free continuing of the purposes of the Act.89 The MSRB repository that can be readily accessed disclosure documents from one place— expressed its belief that existing vendors and easily searched through electronic the MSRB’s Internet site. would continue to have rapid access to means will provide significant benefits Moreover, a ‘‘central post office’’ all of the same documents they that are not available under the current would not, to the same extent as the previously received, now accompanied MSRB’s EMMA system, simplify NRMSIR system. The Commission notes by consistent indexing information, and compliance with regulatory that the submission of continuing would fully be able to provide value requirements by, and reduce disclosure documents in an electronic added products based on such compliance costs of, broker-dealers, format will allow the information to be documents. Additionally, the MSRB municipal securities dealers, and others. posted and disseminated promptly. The responded that it believed that the This is because they would have to first Commission also notes that the MSRB’s availability of continuing disclosure proposed filing format and choice of access the ‘‘central post office’’ to determine what documents are available technology will eliminate the need for 84 See DPC DATA Letter and SPSE Letter. manual handling of paper documents, and then contact one or more NRMSIRs 85 15 U.S.C. 78o–4(d). or SIDs to obtain these documents for a 86 See SPSE Letter. centrally-filed documents in real time to the fee or subscribe to commercial services 87 Id. NRMSIRs. See also SPSE Letter, at 3–5. to do so on their behalf. We believe that 88 See DPC DATA Letter. 83 See MSRB Response Letter. greater benefits will be achieved by 89 See MSRB Response Letter.

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documents through the EMMA portal further commented that it has worked potential new market entrants no longer and the continuing disclosure closely with all of the marketplace’s key will have to pay multiple subscription subscription service would promote constituencies, including issuers, bond fees or document charges to multiple competition among private data vendors attorneys, financial advisers, and others NRMSIRs to access the continuing and other enterprises engaged in, or in the development of EMMA and disclosure information that is necessary interested in becoming engaged in, the represented that it will continue to do for value-added products and services. market for information services by so as EMMA becomes fully operational. The MSRB’s proposal is designed to eliminating existing barriers to new The Commission believes that the help spur innovation and competition entrants into the market for municipal proposal will modernize the method of for value-added products and services securities information. The MSRB availability of continuing disclosure and is expected to reduce barriers to added that none of the functionalities of documents by issuers and, by making entry for new market participants. The the continuing disclosure service use of the Internet, will make these Commission also notes that because constitute value-added services that documents readily accessible to continuing disclosure information will compete inappropriately with the investors and others at no charge. The be available at the MSRB, existing private sector. Rather, the MSRB noted continuing disclosure service will not vendors and new market entrants can that these functionalities are critical for alter the availability of such documents conserve resources that otherwise the continuing disclosure services to commercial vendors or their ability to would be utilized to obtain a full operation as a free, centralized source of disseminate such information, together complement of available continuing information for retail investors that with whatever value-added products disclosure information that is spread out provides investors with the necessary they may wish to provide. The across multiple NRMSIRs. In addition, tools to find the information for which Commission notes that the MSRB has while the Commission acknowledges they are searching and to understand represented that documents provided that some existing vendors may need to such information once it is found. through EMMA will be available to all make some adjustments to their line of Furthermore, the MSRB expressed its persons on an equal basis and that the business or services offered, these belief that its operation of the MSRB will continue to make the full vendors and others may determine that continuing disclosure service would collection of documents available by they no longer need to invest in the serve as a basis on which private subscription on an equal basis, without infrastructure and facilities necessary to enterprises could themselves imposing restrictions on subscribers collect and store continuing disclosure concentrate more of their resources on from re-disseminating such documents information. The Commission believes developing and marketing value-added or from otherwise offering value-added that the proposed rule change likely will services. In the MSRB’s opinion, the service and products, based on such have a net benefit on the competitive shift in the flow of continuing documents on terms determined by each landscape for municipal securities 90 disclosure documents from the current subscriber. Further, the Commission disclosure information services and NRMSIRs to EMMA (from which such notes that the MSRB has represented further the purposes of the Act by entities and others could still obtain that EMMA will be designed to provide deterring the potential for fraud in the documents on a real-time basis real-time access to documents and municipal securities market. information as they are submitted and With respect to concerns that the accompanied by indexing information) 91 would represent only a temporary processed and that all continuing MSRB could control private vendors’ dislocation in the processes by which disclosures received by the MSRB will access to information through unfair fee be available through a data-stream structures and biased dissemination of current vendors that produce value- subscription simultaneously with information for the purpose of added services obtain the raw posting on the EMMA portal.92 conditioning the market to use EMMA documents on which these services are The Commission believes that the and the MSRB’s own services,93 the based. proposed rule change will encourage, Commission notes that the MSRB is Moreover, the MSRB expressed its rather than restrict, competition in the required to file its fee changes and rule belief that the proposal will prove to be municipal securities information proposals relating to the EMMA system of long-term benefit to such vendors. marketplace. The Commission further with the Commission under Section The MSRB noted that much of the believes that any burdens on 19(b) of the Act. Thus, interested parties impact of the proposed rule change on competition that may result from the will have the opportunity to comment commercial enterprises will result from proposed rule change are more than on any such proposal and bring to the increased competition in the justified by the benefits that will flow Commission’s attention any potential marketplace resulting from the entry of from ready and free availability of issues. The Commission has carefully additional commercial enterprises to municipal disclosure documents to considered the comments of the two compete with existing market vendors broker-dealers, municipal securities NRMSIRs regarding competition, and for value-added services, rather than dealers, mutual funds, analysts, retail the MSRB’s response letter, and does from the operation of the continuing and institutional investors, and the not believe that the proposed rule disclosure service. Furthermore, the public generally. Both existing private change will impose any burden on MSRB stated its belief that the benefits vendors and new market entrants competition that is not necessary or realized by the investing public from the seeking to provide value-added appropriate in furtherance of the broader and easier availability of products and services will be able to purposes of the Act. To the contrary, as disclosure information about municipal access all available continuing discussed above, the Commission securities justifies any potential disclosure documents from EMMA for believes that any competitive impact negative impact on existing enterprises free, or for a subscription fee if they that may result from the proposed rule resulting from the operation of EMMA. elect to receive a real-time data feed. change is justified by the benefits that The MSRB emphasized that its activities Consequently, existing vendors and will be provided to investors, broker- are subject to the supervision of the dealers, mutual funds, vendors of Commission and that any changes to 90 See MSRB Response Letter. municipal information, municipal EMMA and related systems must be 91 See MSRB Response Letter. filed with the Commission. The MSRB 92 See Release No. 34–58256, supra note 3. 93 See DPC DATA Letter.

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security analysts, other market or distribution of such securities before comments it received and discussions it professionals and the market generally. such securities are sold.95 The Tower has had with industry participants, and With respect to the comments of the Amendment also prohibits the MSRB to further ensure a smooth transition for two NRMSIRs regarding the Tower from directly or indirectly requiring an submitters and end users of continuing Amendment, the MSRB responded that issuer of municipal securities, directly disclosures, it has filed Amendment No. it believes its proposal to create a or indirectly through a municipal 1 to delay the effectiveness of the continuing disclosure service is securities broker or dealer or otherwise, continuing disclosure service until the consistent with the MSRB’s statutory to furnish to it documents relating to the later of July 1, 2009 or the effective date authority under Section 15B(d) of the issuer, unless such information is of the Rule 15c2–12 Amendments and Act, i.e., the Tower Amendment.94 The available from a source other than the to extend the transition to a word- MSRB believes that the continuing issuer.96 The MSRB’s proposed rule searchable format until January 1, 2010. disclosure service of EMMA will serve change does not implicate Section Furthermore, the MSRB stated that it as a necessary step to better facilitate the 15B(d)(1) or (2) of the Act because it expects to file with the Commission to free and timely public access to imposes no requirements on issuers. establish a pilot program for the continuing disclosure documents and Instead, through the establishment of continuing disclosure service that related information. The service will the continuing disclosure service of would allow for system testing through remove impediments to and help perfect EMMA as an information venue, the voluntary submissions of continuing the mechanisms of a free and open proposed rule change enhances access disclosures prior to the effectiveness of market in municipal securities thereby, to continuing disclosure information the amendments to Rule 15c2–12 and effectively, promoting investor provided to the MSRB subsequent to the the launch of the permanent continuing protections and the public interest by sale of municipal securities as a disclosure service. ensuring equal access for all market consequence of continuing disclosure participants to the critical disclosure agreements entered into consistent with IV. Order Granting Accelerated information needed by investors in the a rule of the Commission’s Rule 15c2– Approval of Proposed Rule Change municipal securities market. The MSRB 12, which is designed to deter fraud in As noted above, the MSRB now seeks believes that all of the continuing the municipal securities market. The pursuant to Amendment No. 1 to disclosure service’s functionalities proposed rule change does not alter commence operation of the EMMA relate to the core mission of the MSRB market participants’ existing portal for continuing disclosure and such functionalities are not obligations, but rather it enhances the documents on July 1, 2009,102 which is inconsistent with any statutory system for the receipt of, and for making commensurate with the effective date of limitations placed on MSRB activities. available to the public of, the continuing the Rule 15c2–12 Amendments that we The MSRB believes that municipal disclosure documents. For these also are adopting today.103 In addition, securities disclosure documents should reasons, the Commission does not Amendment No. 1 requests that the be made more readily and promptly believe that the proposed rule change is Commission delay the effectiveness of available to the public and that all contrary to Section 15B(d) of the Act. the provision of the proposed rule investors should have better access to Several commenters that supported change relating to word searchable PDF important market information. the proposed rule change also made files until January 1, 2010. The MSRB The Commission also does not believe suggestions regarding the transition to requests that the Commission find good that the proposed rule change is the proposed system.97 For example, cause, pursuant to Section 19(b)(2) of inconsistent with the Tower one commenter believed that there the Act, for approving Amendment No. Amendment. The Tower Amendment should be a three- to six-month 1 prior to the thirtieth day after prohibits the MSRB from directly or transition period for submissions to publication of notice of filing of indirectly requiring an issuer of EMMA and a twelve-month transition Amendment No. 1 in the Federal municipal securities to file with it any period for the submissions of searchable Register. The MSRB believes that the documents relating to the issuance, sale PDFs.98 Another commenter believed Commission has good cause for granting that there should be a nine-month accelerated approval of the proposed 94 Section 15B(d) of the Exchange Act states as transition period to a word searchable rule change because the amendment follows: (1) Neither the Commission nor the Board format.99 Another commenter believed does not substantively alter the original is authorized under this title, by rule or regulation, that parties who have made paper to require any issuer of municipal securities, proposed rule change other than directly or indirectly through a purchaser or filings in the past should be allowed changing two effective dates to allow prospective purchaser of securities from the issuer, additional time to transition to more time for implementation. to file with the Commission or the Board prior to electronic filings.100 A fourth The Commission finds good cause to the sale of such securities by the issuer any commenter noted that issuers and application, report, or document in connection with approve the proposed rule change on an the issuance, sale, or distribution of such securities. obligated persons may be confused as to accelerated basis. The proposed rule (2) The Board is not authorized under this title to where they should file continuing change was published in the Federal require any issuer of municipal securities, directly disclosure documents during the period Register on August 7, 2008.104 The or indirectly through a municipal securities broker of transition and suggested that these Commission believes that the proposal or municipal securities dealer or otherwise, to concerns could be addressed during a furnish to the Board or to a purchaser or a includes an appropriate transition 101 prospective purchaser of such securities any short transition period. The MSRB period and believes that parties that application, report, document, or information with responded that, in view of the have made paper filings in the past or respect to such issuer: Provided, however, That the that do not presently use word Board may require municipal securities brokers and 95 15 U.S.C. 78o–4(d)(1). municipal securities dealers to furnish to the Board searchable formats will have sufficient 96 15 U.S.C. 78o–4(d)(2). or purchasers or prospective purchasers of 97 time to transition to electronic filings as municipal securities applications, reports, See, e.g., GFOA Letter, e-certus Letter, Treasurer of the State of Connecticut Letter, and of July 1, 2009 and to a word searchable documents, and information with respect to the NABL Letter. issuer thereof which is generally available from a 98 source other than such issuer. Nothing in this See GFOA Letter. 102 See Amendment No. 1, supra note 5. paragraph shall be construed to impair or limit the 99 See Treasurer of the State of Connecticut Letter. 103 See Rule 15c2–12 Amendments Adopting power of the Commission under any provision of 100 See NABL Letter. Release, supra note 7. this title. 15 U.S.C. 78o–4(d)(1) and (2). 101 See Vanguard Letter. 104 See Release No. 34–58256, supra note 3.

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PDF format as of January 1, 2010, rule change is consistent with the Services Division, American Bankers respectively. requirements of the Act and in Association (‘‘ABA’’), to Florence E. particular Section 15B(b)(2)(C) of the Harmon, Acting Secretary, Commission, V. Solicitation of Comments Act and the rules and regulations dated September 22, 2008 (‘‘ABA Interested persons are invited to Letter’’). thereunder. 11. Letter from Laura Slaughter, Executive submit written data, views, and It is therefore ordered, pursuant to Director, Municipal Advisory Council of arguments concerning the foregoing, Section 19(b)(2) of the Act,105 that the Texas (‘‘Texas MAC’’), to Christopher including whether the proposed rule proposed rule change (SR–MSRB–2008– Cox, Chairman, Commission, and change is consistent with the Act. 05), as modified by Amendment No. 1, Ernesto A. Lanza, Senior Associate Comments may be submitted by any of be, and it hereby is, approved on an General Counsel, MSRB, dated the following methods: accelerated basis. September 22, 2008 (‘‘Texas MAC Letter’’). Electronic Comments By the Commission. 12. Letter from K.W. Gurney, Director, Ohio • Use the Commission’s Internet Florence E. Harmon, Municipal Advisory Council (‘‘OMAC’’), to Christopher Cox, Chairman, Acting Secretary. comment form (http://www.sec.gov/ Commission, and Ernesto A. Lanza, rules/sro.shtml); or • Exhibit A Senior Associate General Counsel, Send an e-mail to rule- MSRB, dated September 22, 2008 [email protected]. Please include File Key to Comment Letters Cited in Order (‘‘OMAC Letter’’). Number SR–MSRB–2008–05 on the Relating to the Establishment of a 13. Letter from Karrie McMillan, General subject line. Continuing Disclosure Service of the Counsel, Investment Company Institute Electronic Municipal Market Access System (‘‘ICI’’), to Florence E. Harmon, Acting Paper Comments (EMMA) (File No. SR–MSRB–2008–05) Secretary, Commission, dated September • Send paper comments in triplicate 1. Letter from Fran Busby, to 21st Century 22, 2008 (‘‘ICI Letter’’). to Secretary, Securities and Exchange Disclosure Initiative, Commission, dated 14. Letter from Robert Donovan, Executive October 7, 2008 (‘‘Busby Letter’’). Director, Rhode Island Health and Commission, 100 F Street, NE., Educational Building Corporation and Washington, DC 20549–1090. 2. Letter from Paula Stuart, Chief Executive Officer, Digital Assurance Certification, Steven Fillebrown, Director of Research, All submissions should refer to File L.L.C. (‘‘DAC’’), to Florence E. Harmon, Investor Relations and Compliance, New Number SR–MSRB–2008–05. This file Acting Secretary, Commission, dated Jersey Healthcare Financing Authority, number should be included on the September 25, 2008 (‘‘DAC Letter’’). on behalf of the National Association of subject line if e-mail is used. To help the 3. Letter from Christopher Alwine, Head of Health and Educational Facilities Municipal Money Market and Bond Finance Authorities (‘‘NAHEFFA’’), to Commission process and review your Florence E. Harmon, Acting Secretary, comments more efficiently, please use Groups, The Vanguard Group, Inc. (‘‘Vanguard’’), to Florence E. Harmon, Commission, dated September 22, 2008 only one method. The Commission will (‘‘NAHEFFA Letter’’). Acting Secretary, Commission, dated post all comments on the Commission’s 15. Letter from Peter J. Schmitt, CEO, DPC September 24, 2008 (‘‘Vanguard Letter’’). DATA Inc. (‘‘DPC DATA’’), to Florence Internet Web site (http://www.sec.gov/ 4. Letter from Susan A. Gaffney, Director, E. Harmon, Acting Secretary, rules/sro.shtml). Copies of the Federal Liaison Center, Government Commission, dated September 18, 2008 submission, all subsequent Finance Officers Association (‘‘GFOA’’), amendments, all written statements (‘‘DPC DATA Letter’’). to Florence E. Harmon, Acting Secretary, 16. Letter from Philip D. Moyer, CEO & with respect to the proposed rule Commission, dated September 24, 2008 President, EDGAR Online (‘‘EDGAR change that are filed with the (‘‘GFOA Letter’’). Online’’), to Christopher Cox, Chairman, Commission, and all written 5. Letter from Louis V. Eccleston, President, Commission, and Ernesto A. Lanza, communications relating to the Standard & Poor’s Securities Evaluations, Senior Associate General Counsel, proposed rule change between the Inc. (‘‘SPSE’’), to Florence E. Harmon, MSRB, dated September 9, 2008 Acting Secretary, Commission, dated Commission and any person, other than (‘‘EDGAR Online Letter’’). September 22, 2008 (‘‘SPSE Letter’’). 17. Letter from Lynette Kelly Hotchkiss, those that may be withheld from the 6. Letter from R.T. McNamar, CEO, e-certus, public in accordance with the Executive Director, MSRB, to Inc. (‘‘e-certus’’), to Christopher Cox, Christopher Cox, Chairman, and James L. provisions of 5 U.S.C. 552, will be Chairman, Commission, and Ernesto A. Eastman, Counsel, Commission, dated available for inspection and copying in Lanza, Senior Associate General September 8, 2008 (‘‘MSRB Letter’’). the Commission’s Public Reference Counsel, MSRB, dated September 22, 18. Letter from Rob Yolland, Chairman, Room, 100 F Street, NE., Washington, 2008 (‘‘e-certus Letter’’). National Federation of Municipal DC 20549, on official business days 7. Letter from Leslie M. Norwood, Managing Analysts (NFMA), to Ernesto A. Lanza, between the hours of 10 a.m. and 3 p.m. Director and Associate General Counsel, Senior Associate General Counsel, Securities Industry and Financial Copies of such filing also will be MSRB, Commission, dated March 10, Markets Association (‘‘SIFMA’’), to 2008 (‘‘NFMA Letter’’). available for inspection and copying at Florence E. Harmon, Acting Secretary, the principal office of the MSRB. All Commission, dated September 22, 2008 [FR Doc. E8–29376 Filed 12–11–08; 8:45 am] comments received will be posted (‘‘SIFMA Letter’’). BILLING CODE 8011–01–P without change; the Commission does 8. Letter from William A. Holby, President, not edit personal identifying National Association of Bond Lawyers information from submissions. You (‘‘NABL’’), to Florence E. Harmon, DEPARTMENT OF STATE should submit only information that Acting Secretary, Commission, dated you wish to make available publicly. All September 22, 2008 (‘‘NABL Letter’’). [Public Notice 6449] 9. Letter from Denise L. Nappier, Treasurer, submissions should refer to File State of Connecticut, to Christopher Cox, Bureau of Educational and Cultural Number SR–MSRB–2008–05 and should Chairman, Commission, dated Affairs (ECA) Request for Grant be submitted on or before January 2, September 22, 2008 (‘‘Treasurer of the Proposals: Youth Programs Academic 2009. State of Connecticut Letter’’). Year Disability Components 10. Letter from J. Douglas Adamson, VI. Conclusion Executive Vice President, Technical Announcement Type: New Grant. On the basis of the foregoing, the Funding Opportunity Number: ECA/ Commission finds that the proposed 105 15 U.S.C. 78s(b)(2). PE/C/PY–09–05.

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Catalog of Federal Domestic students and work with their placement activities designed to involve them in Assistance Number: 00.000. organizations to assist the students in civic education, democracy building, Key Dates: June 2009–August 2010. taking advantage of local opportunities and mutual understanding. Application Deadline: February 6, for people with disabilities. Finally, the 2. Ongoing Support and Academic 2009. process will include implementing the Year Programming: Placement Executive Summary: The Office of Leadership and Reentry Workshop to organizations have varying levels of Citizen Exchanges, Youth Programs assist the students in discussing their experience working with students with Division, of the Bureau of Educational year’s experience and preparing for their disabilities and often lack resources and and Cultural Affairs announces an open return home as individuals with counseling expertise. Providing such competition for the management of the disabilities. support services during the year will Disability Components for two Background: The Future Leaders undoubtedly offer students with Academic Year programs. This includes Exchange (FLEX) and Youth Exchange disabilities access to opportunities that conducting a five-day summer and Study (YES) programs bring they may not be aware of as well as Preparatory Workshop and a two-day secondary school students from Eurasia enhance their experiences in their spring Leadership and Reentry and countries with significant Muslim American host communities. However, Workshop for Students with Disabilities populations to the United States for an in addition to providing for the physical from Eurasia participating in the Future academic year. During their time in the and emotional support of students with Leaders Exchange (FLEX) Program and United States, these students live with disabilities, POs also need guidance in from countries with significant Muslim American host families and attend U.S. identifying appropriate disability- populations participating in the Youth high schools. Since 1995, the FLEX related local community service and Exchange and Study (YES) Program, as program has included a component for enhancement opportunities to provide well as providing support services to students with disabilities. In Eurasia, for the programmatic aspects of the these students throughout the year by young people with disabilities may be students’ FLEX or YES experience. Your assisting grantee placement treated differently than they are in the organization’s expertise and knowledge organizations and maintaining regular United States. These young people with of resources around the country will communication with each student, as disabilities may be more sheltered from provide valuable assistance to POs in needed. Approximately 30 high school- mainstream society or attend special planning meaningful activities that can aged students will participate in the schools or institutions. Students may enhance and enrich the students’ Disability Component Program. not be familiar with the technology, experiences while in the United States, I. Funding Opportunity Description tools, and services available for people and they will be well-prepared to use with disabilities in the United States, their new knowledge and skills in their Authority: Overall grant making and may need extra assistance in home countries. authority for this program is contained learning to use the resources available. 3. Leadership and Reentry Workshop in the Mutual Educational and Cultural A similar situation exists in the for Students With Disabilities: After Exchange Act of 1961, Public Law 87– countries from which the YES students having enjoyed the accessibility and 256, as amended, also known as the come, with obstacles for full inclusion other disability support that exists in Fulbright-Hays Act. The purpose of the in society compared to people without the U.S., FLEX and YES students with Act is ‘‘to enable the Government of the disabilities. Therefore, the Disabilities disabilities are often not well prepared United States to increase mutual Components program was expanded in to return to the less disability-friendly understanding between the people of 2006 to include YES students. environments of their home countries. It the United States and the people of The program should be designed to is important to adequately prepare other countries * * *; to strengthen the support the following specific activities/ program participants with disabilities ties which unite us with other nations components: for the reverse culture shock that may by demonstrating the educational and occur when they return home. cultural interests, developments, and 1. Preparatory Workshop for Students With Disabilities Therefore, this workshop should focus achievements of the people of the solely on the readjustment of each United States and other nations Generally, FLEX and YES participants student as a person with a disability, as * * *and thus to assist in the with disabilities adjust well to the students will also be attending other development of friendly, sympathetic American life and culture and realize reentry workshops conducted for all and peaceful relations between the the same positive effects as non- FLEX and YES students by their United States and the other countries of disabled participants. The grantee respective placement organizations at the world.’’ The funding authority for organization will assess the students’ the end of the program year. These other the program above is provided through abilities and special needs and provide workshops will provide more general legislation. information to placement organizations training for readjustment to the Purpose: It is Bureau policy that (POs) on accommodations that each students’ home cultures. Additional recruitment of people with disabilities student may require, as well as assist goals of the Leadership and Reentry at every level should be a priority in all each PO in identifying resources to workshop are to conduct activities to sponsored programming. It is ECA’s goal support the student in the host further develop leadership skills, team to provide each student with a disability community. The Preparatory Workshop building, and empowerment skills to participating in the FLEX or YES will also introduce and guide students’ assist students in returning to their Program with an integrated three-phase expectations and skills for the U.S. home countries. program designed to enhance their academic year as individuals with experience in the United States. This disabilities. The grantee organization II. Award Information will include providing a Preparatory will focus on identifying local activities Type of Award: Grant Agreement. Workshop upon the students’ arrival in and resources to prepare each student to Fiscal Year Funds: 2009. the U.S. and developing an action plan incorporate disability-related themes Approximate Total Funding: Up to with each student for the coming year. into their FLEX or YES program $220,000, pending availability of funds. The grantee organization will then objectives of participation in Approximate Number of Awards: continue to support each of these community service and enhancement One.

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Anticipated Award Date: Pending IV. Application and Submission www.dunandbradstreet.com or call 1– availability of funds, April 2009. Information 866–705–5711. Please ensure that your Anticipated Project Completion Date: DUNS number is included in the Note: Please read the complete August 2010. appropriate box of the SF–424 which is announcement before sending inquiries or part of the formal application package. Additional Information: Pending submitting proposals. Once the RFGP IV.3b. All proposals must contain an successful implementation of this deadline has passed, Bureau staff may not executive summary, proposal narrative program and the availability of funds in discuss this competition with applicants until the proposal review process has been and budget. subsequent fiscal years, it is ECA’s completed. Please Refer to the Solicitation intent to renew this grant for two Package. It contains the mandatory additional fiscal years, before openly IV.1. Contact Information To Request Proposal Submission Instructions (PSI) competing it again. an Application Package: Please contact document and the Project Objectives, Amy Schulz in the Youth Programs Goals and Implementation (POGI) III. Eligibility Information Division, ECA/PE/C/PY, Room Number document for additional formatting and 220, U.S. Department of State, SA–44, III.1. Eligible Applicants: Applications technical requirements. 301 4th Street, SW., Washington, DC IV.3c. You must have nonprofit status may be submitted by public and private 20547, phone: (202) 453–8158, fax (202) with the IRS at the time of application. non-profit organizations meeting the 453–8169, or e-mail [email protected] Please note: Effective March 14, 2008, all provisions described in Internal to request a Solicitation Package. Revenue Code section 26 U.S.C. applicants for ECA federal assistance awards Please refer to the Funding must include with their application, a copy 501(c)(3). Opportunity Number located at the top of page 5, Part V–A, ‘‘Current Officers, III.2. Cost Sharing or Matching Funds: of this announcement when making Directors, Trustees, and Key Employees’’ of There is no minimum or maximum your request. Alternatively, an their most recent Internal Revenue Service percentage required for this electronic application package may be (IRS) Form 990, ‘‘Return of Organization Exempt From Income Tax.’’ If an applicant competition. However, the Bureau obtained from grants.gov. Please see section IV.3f for further information. does not file an IRS Form 990, but instead encourages applicants to provide files Schedule A (Form 990 or 990–EZ)— maximum levels of cost sharing and The Solicitation Package contains the ‘‘Organization Exempt Under Section funding in support of its programs. Proposal Submission Instruction (PSI) 501(c)(3),’’ applicants must include with document which consists of required their application a copy of Page 1, Part 1, When cost sharing is offered, it is application forms, and standard ‘‘Compensation of the Five Highest Paid understood and agreed that the guidelines for proposal preparation. It Employees Other Than Officers, Directors applicant must provide the amount of also contains the Project Objectives, and Trustees,’’ of their most recent Internal cost sharing as stipulated in its proposal Goals and Implementation (POGI) Revenue Service (IRS) Form—Schedule A and later included in an approved grant document, which provides specific (Form 990 or 990–EZ). agreement. Cost sharing may be in the information, award criteria and budget If your organization is a private nonprofit form of allowable direct or indirect which has not received a grant or cooperative instructions tailored to this competition. agreement from ECA in the past three years, costs. For accountability, you must Please specify Bureau Program Officer or if your organization received nonprofit maintain written records to support all Amy Schulz and refer to the Funding status from the IRS within the past four costs which are claimed as your Opportunity Number (ECA/PE/C/PY– years, you must submit the necessary contribution, as well as costs to be paid 09–05) located at the top of this documentation to verify nonprofit status as by the Federal government. Such announcement on all other inquiries directed in the PSI document. Failure to do records are subject to audit. The basis and correspondence. so will cause your proposal to be declared for determining the value of cash and IV.2. To Download a Solicitation technically ineligible. in-kind contributions must be in Package Via Internet: The entire IV.3d. Please take into consideration accordance with OMB Circular A–110, Solicitation Package may be the following information when (Revised), Subpart C.23—Cost Sharing downloaded from the Bureau’s Web site preparing your proposal narrative: and Matching. In the event you do not at http://exchanges.state.gov/education/ IV.3d.1. Adherence to All Regulations provide the minimum amount of cost rfgps/menu.htm or from the Grants.gov Governing the J Visa: The Office of sharing as stipulated in the approved Web site at http://www.grants.gov. Citizen Exchanges of the Bureau of budget, ECA’s contribution will be Please read all information before Educational and Cultural Affairs is the reduced in like proportion. downloading. official program sponsor of the exchange IV.3. Content and Form of program covered by this RFGP, and an III.3. Other Eligibility Requirements: Submission: Applicants must follow all employee of the Bureau will be the Bureau grant guidelines require that instructions in the Solicitation Package. ‘‘Responsible Officer’’ for the program organizations with less than four years The application should be submitted under the terms of 22 CFR part 62, experience in conducting international per the instructions under IV.3f. which covers the administration of the exchanges be limited to $60,000 in ‘‘Application Deadline and Methods of Exchange Visitor Program (J visa Bureau funding. ECA anticipates Submission’’ section below. program). Under the terms of 22 CFR making one award, in an amount up to IV.3a. You are required to have a Dun part 62, organizations receiving awards $220,000 to support program and and Bradstreet Data Universal (either a grant or cooperative agreement) administrative costs required to Numbering System (DUNS) number to under this RFGP will be third parties implement this exchange program. apply for a grant or cooperative ‘‘cooperating with or assisting the Therefore, organizations with less than agreement from the U.S. Government. sponsor in the conduct of the sponsor’s four years experience in conducting This number is a nine-digit program.’’ The actions of recipient international exchanges are ineligible to identification number, which uniquely organizations shall be ‘‘imputed to the apply under this competition. The identifies business entities. Obtaining a sponsor in evaluating the sponsor’s Bureau encourages applicants to DUNS number is easy and there is no compliance with’’ 22 CFR part 62. provide maximum levels of cost sharing charge. To obtain a DUNS number, Therefore, the Bureau expects that any and funding in support of its programs. access http:// organization receiving an award under

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this competition will render all countries whose people do not fully and outcomes should both be reported, assistance necessary to enable the enjoy freedom and democracy,’’ the but the focus should be on outcomes. Bureau to fully comply with 22 CFR Bureau ‘‘shall take appropriate steps to We encourage you to assess the part 62 et seq. provide opportunities for participation following four levels of outcomes, as The Bureau of Educational and in such programs to human rights and they relate to the program goals set out Cultural Affairs places critically democracy leaders of such countries.’’ in the RFGP (listed here in increasing important emphases on the secure and Public Law 106–113 requires that the order of importance): proper administration of Exchange governments of the countries described 1. Participant satisfaction with the Visitor (J visa) Programs and adherence above do not have inappropriate program and exchange experience. by recipient organizations and program influence in the selection process. 2. Participant learning, such as participants to all regulations governing Proposals should reflect advancement of increased knowledge, aptitude, skills, the J visa program status. Therefore, these goals in their program contents, to and changed understanding and proposals should explicitly state in the full extent deemed feasible. attitude. Learning includes both writing that the applicant is prepared to IV.3d.3. Program Monitoring and substantive (subject-specific) learning assist the Bureau in meeting all Evaluation: Proposals must include a and mutual understanding. requirements governing the plan to monitor and evaluate the 3. Participant behavior, concrete administration of Exchange Visitor project’s success, both as the activities actions to apply knowledge in work or Programs as set forth in 22 CFR part 62. unfold and at the end of the program. community; greater participation and If your organization has experience as a The Bureau recommends that your responsibility in civic organizations; designated Exchange Visitor Program proposal include a draft survey interpretation and explanation of Sponsor, the applicant should discuss questionnaire or other technique plus a experiences and new knowledge gained; their record of compliance with 22 CFR description of a methodology to use to continued contacts between part 62 et seq., including the oversight link outcomes to original project participants, community members, and of their Responsible Officers and objectives. The Bureau expects that the others. 4. Institutional changes, such as Alternate Responsible Officers, grantee will track participants or increased collaboration and screening and selection of program partners and be able to respond to key partnerships, policy reforms, new participants, provision of pre-arrival evaluation questions, including programming, and organizational information and orientation to satisfaction with the program, learning improvements. participants, monitoring of participants, as a result of the program, changes in proper maintenance and security of behavior as a result of the program, and Please note: Consideration should be given forms, record-keeping, reporting and effects of the program on institutions to the appropriate timing of data collection other requirements. (institutions in which participants work for each level of outcome. For example, The Office of Citizen Exchanges of satisfaction is usually captured as a short- or partner institutions). The evaluation ECA will be responsible for issuing DS– term outcome, whereas behavior and plan should include indicators that 2019 forms to participants in this institutional changes are normally program. measure gains in mutual understanding considered longer-term outcomes. A copy of the complete regulations as well as substantive knowledge. Overall, the quality of your monitoring and governing the administration of Successful monitoring and evaluation evaluation plan will be judged on how well it (1) Specifies intended outcomes; (2) gives Exchange Visitor (J) programs is depend heavily on setting clear goals and outcomes at the outset of a program. clear descriptions of how each outcome will available at http://exchanges.state.gov be measured; (3) identifies when particular or from: United States Department of Your evaluation plan should include a outcomes will be measured; and (4) provides State, Office of Exchange Coordination description of your project’s objectives, a clear description of the data collection and Designation, ECA/EC/ECD—SA–44, your anticipated project outcomes, and strategies for each outcome (i.e., surveys, Room 734, 301 4th Street, SW., how and when you intend to measure interviews, or focus groups). (Please note that Washington, DC 20547, Telephone: these outcomes (performance evaluation plans that deal only with the first (202) 203–5029, FAX: (202) 453–8640. indicators). The more that outcomes are level of outcomes [satisfaction] will be IV.3d.2 Diversity, Freedom and ‘‘smart’’ (specific, measurable, deemed less competitive under the present attainable, results-oriented, and placed evaluation criteria.) Democracy Guidelines: Pursuant to the Recipient organizations will be required to Bureau’s authorizing legislation, in a reasonable timeframe), the easier it provide reports analyzing their evaluation programs must maintain a non-political will be to conduct the evaluation. You findings to the Bureau in their regular character and should be balanced and should also show how your project program reports. All data collected, including representative of the diversity of objectives link to the goals of the survey responses and contact information, American political, social, and cultural program described in this RFGP. must be maintained for a minimum of three life. ‘‘Diversity’’ should be interpreted Your monitoring and evaluation plan years and provided to the Bureau upon in the broadest sense and encompass should clearly distinguish between request. differences including, but not limited to program outputs and outcomes. Outputs IV.3d.4. For informational and ethnicity, race, gender, religion, are products and services delivered, planning purposes, we are informing all geographic location, socio-economic often stated as an amount. Output potential applicants that ECA is in the status, and disabilities. Applicants are information is important to show the process of developing comprehensive strongly encouraged to adhere to the scope or size of project activities, but it approaches to alumni programming, advancement of this principle both in cannot substitute for information about Web portal development supported program administration and in program progress towards outcomes or the through ECA assistance awards (grants/ content. Please refer to the review results achieved. Examples of outputs cooperative agreements) and the criteria under the ‘‘Support for include the number of people trained or expansion of private/public Diversity’’ section for specific the number of seminars conducted. partnerships to increase the reach of suggestions on incorporating diversity Outcomes, in contrast, represent ECA’s exchange programs. In the event into your proposal. Public Law 104–319 specific results a project is intended to your proposal is recommended for provides that ‘‘in carrying out programs achieve and is usually measured as an funding, you may receive additional of educational and cultural exchange in extent of change. Findings on outputs guidance/information related to these

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topics during the negotiation stage of (2) Electronically through http:// determine their registration status with the approval process. www.grants.gov. Along with the Grants.gov. In addition, all recipients of ECA Program Title, all applicants must enter Once registered, the amount of time it grants or cooperative agreements should the above Reference Number in Box 11 can take to upload an application will be prepared to state in any on the SF–424 contained in the vary depending on a variety of factors announcement or publicity where it is mandatory Proposal Submission including the size of the application and not inappropriate, that activities are Instructions (PSI) of the solicitation the speed of your internet connection. assisted financially by the Bureau of document. In addition, validation of an electronic Educational and Cultural Affairs of the IV.3f.1. Submitting Printed submission via Grants.gov can take up United States Department of State under Applications: Applications must be to two business days. the authority of the Fulbright-Hays Act shipped no later than the above Therefore, we strongly recommend of 1961, as amended. Award recipients deadline. Delivery services used by that you not wait until the application are strongly encouraged to use the applicants must have in-place, deadline to begin the submission Department seal on all promotional and centralized shipping identification and process through Grants.gov. related materials for ECA funded tracking systems that may be accessed The Grants.gov Web site includes programs which support the via the Internet and delivery people extensive information on all phases/ commemoration of special occasions or who are identifiable by commonly aspects of the Grants.gov process, events, but only after first obtaining recognized uniforms and delivery including an extensive section on written permission from the ECA vehicles. Proposals shipped on or before frequently asked questions, located program office(r) assigned to the project. the above deadline but received at ECA under the ‘‘For Applicants’’ section of IV.3e. Please take the following more than seven days after the deadline the Web site. ECA strongly recommends information into consideration when will be ineligible for further that all potential applicants review preparing your budget: consideration under this competition. thoroughly the Grants.gov Web site, IV.3e.1. Applicants must submit SF– Proposals shipped after the established well in advance of submitting a 424A—‘‘Budget Information—Non- deadlines are ineligible for proposal through the Grants.gov system. Construction Programs’’ along with a consideration under this competition. comprehensive budget for the entire ECA bears no responsibility for data ECA will not notify you upon receipt of errors resulting from transmission or program. Budget requests may not application. It is each applicant’s exceed $220,000. There must be a conversion processes. responsibility to ensure that each summary budget as well as breakdowns Direct all questions regarding package is marked with a legible reflecting both administrative and Grants.gov registration and submission tracking number and to monitor/confirm program budgets. Applicants may to: Grants.gov Customer Support, delivery to ECA via the Internet. provide separate sub-budgets for each Contact Center Phone: 800–518–4726, Delivery of proposal packages may not program component, phase, location, or Business Hours: Monday–Friday, 7 be made via local courier service or in activity to provide clarification. a.m.–9 p.m. Eastern Time, E-mail: IV.3e.2. Allowable costs for the person for this competition. Faxed [email protected]. program include the following: documents will not be accepted at any Applicants have until midnight (12 (1) Round-trip transportation for time. Only proposals submitted as a.m.), Washington, DC time of the participants from their host stated above will be considered. closing date to ensure that their entire communities to/from the Leadership Important note: When preparing your application has been uploaded to the and Reentry workshop site. submission please make sure to include one Grants.gov site. There are no exceptions (2) Daily travel at workshop site extra copy of the completed SF–424 form and to the above deadline. Applications location as necessary. place it in an envelope addressed to uploaded to the site after midnight of (3) Accommodations and meals for ‘‘ECA/EX/PM’’. the application deadline date will be participants during the time of the The original and seven copies of the automatically rejected by the grants.gov workshop. application should be sent to: U.S. system, and will be technically (4) Rental of facilities and equipment. Department of State, SA–44, Bureau of ineligible. (5) Fees for relevant excursions and Educational and Cultural Affairs, Ref: Please refer to the Grants.gov Web cultural activities. ECA/PE/C/PY–09–05, Program site, for definitions of various (6) Honoraria for speakers/trainers, as Management, ECA/EX/PM, Room 534, ‘‘application statuses’’ and the appropriate. 301 4th Street, SW., Washington, DC difference between a submission receipt (7) Necessary reasonable 20547. and a submission validation. Applicants accommodations. IV.3f.2. Submitting Electronic will receive a validation e-mail from (8) Materials development. Please refer to the Solicitation Applications: Applicants have the grants.gov upon the successful Package for complete budget guidelines option of submitting proposals submission of an application. Again, and formatting instructions. electronically through Grants.gov validation of an electronic submission IV.3f. Application Deadline and (http://www.grants.gov). Complete via Grants.gov can take up to two Methods of Submission: solicitation packages are available at business days. Therefore, we strongly Application Deadline Date: Friday, Grants.gov in the ‘‘Find’’ portion of the recommend that you not wait until the February 6, 2009. system. Please follow the instructions application deadline to begin the Reference Number: ECA/PE/C/PY– available in the ‘‘Get Started’’ portion of submission process through Grants.gov. 09–05. the site (http://www.grants.gov/ ECA will not notify you upon receipt of Methods of Submission: Applications GetStarted). electronic applications. may be submitted in one of two ways: Several of the steps in the Grants.gov It is the responsibility of all (1) In hard-copy, via a nationally registration process could take several applicants submitting proposals via the recognized overnight delivery service weeks. Therefore, applicants should Grants.gov Web portal to ensure that (i.e., DHL, Federal Express, UPS, check with appropriate staff within their proposals have been received by Airborne Express, or U.S. Postal Service organizations immediately after Grants.gov in their entirety, and ECA Express Overnight Mail, etc.), or reviewing this RFGP to confirm or bears no responsibility for data errors

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resulting from transmission or compliance with all reporting for Grants and Agreements with conversion processes. requirements for past Bureau awards Institutions of Higher Education, IV.3g. Intergovernmental Review of (grants or cooperative agreements) as Hospitals, and other Nonprofit Applications: Executive Order 12372 determined by Bureau Grants Staff. The Organizations. does not apply to this program. Bureau will consider the past OMB Circular No. A–102, Uniform performance of prior recipients and the Administrative Requirements for V. Application Review Information demonstrated potential of new Grants-in-Aid to State and Local V.1. Review Process applicants. Governments. OMB Circular No. A–133, Audits of The Bureau will review all proposals 6. Project Evaluation: Proposals States, Local Government, and Non- for technical eligibility. Proposals will should include a plan to evaluate the profit Organizations. be deemed ineligible if they do not fully activity’s success, both as the activities Please reference the following Web adhere to the guidelines stated herein unfold and at the end of the program. A sites for additional information: http:// and in the Solicitation Package. All draft survey questionnaire or other www.whitehouse.gov/omb/grants. eligible proposals will be reviewed by technique plus description of a methodology to use to link outcomes to http://fa.statebuy.state.gov. the program office, as well as the Public VI.3. Reporting Requirements: You Diplomacy section overseas, where original project objectives is recommended. must provide ECA with a hard copy appropriate. Eligible proposals will be original plus two copies of the following subject to compliance with Federal and 7. Cost-effectiveness and Cost-sharing: The overhead and administrative reports: Bureau regulations and guidelines and (1.) A final program and financial forwarded to Bureau grant panels for components of the proposal, including salaries and honoraria, should be kept report no more than 90 days after the advisory review. Proposals may also be expiration of the award; reviewed by the Office of the Legal as low as possible. All other items should be necessary and appropriate. (2.) A concise, one-page final program Adviser or by other Department report summarizing program outcomes elements. Final funding decisions are at Proposals should maximize cost-sharing through other private sector support as no more than 90 days after the the discretion of the Department of expiration of the award. This one-page State’s Assistant Secretary for well as institutional direct funding contributions. report will be transmitted to OMB, and Educational and Cultural Affairs. Final be made available to the public via technical authority for grants assistance VI. Award Administration Information OMB’s USAspending.gov Web site—as awards resides with the Bureau’s Grants VI.1a. Award Notices part of ECA’s Federal Funding Officer. Accountability and Transparency Act Final awards cannot be made until Review Criteria (FFATA) reporting requirements. funds have been appropriated by (3.) A SF–PPR, ‘‘Performance Progress Technically eligible applications will Congress, allocated and committed Report’’ Cover Sheet with all program be competitively reviewed according to through internal Bureau procedures. reports. the criteria stated below. These criteria Successful applicants will receive a Award recipients will be required to are not rank ordered and all carry equal Federal Assistance Award (FAA) from provide reports analyzing their weight in the proposal evaluation: the Bureau’s Grants Office. The FAA evaluation findings to the Bureau in 1. Program planning: Detailed agenda and the original proposal with their regular program reports. (Please and relevant work plan should subsequent modifications (if applicable) refer to IV. Application and Submission demonstrate substantive undertakings shall be the only binding authorizing Instructions (IV.3.d.3) above for Program and logistical capacity. Agenda and plan document between the recipient and the Monitoring and Evaluation information. should adhere to the program overview U.S. Government. The FAA will be All data collected, including survey and guidelines described above. signed by an authorized Grants Officer, responses and contact information, must 2. Ability to achieve program and mailed to the recipient’s be maintained for a minimum of three objectives: Objectives should be responsible officer identified in the years and provided to the Bureau upon reasonable, feasible, and flexible. application. request. Proposals should clearly demonstrate Unsuccessful applicants will receive All reports must be sent to the ECA how the institution will meet the notification of the results of the Grants Officer and ECA Program Officer program’s objectives and plan. application review from the ECA listed in the final assistance award 3. Support of Diversity: Proposals program office coordinating this document. should demonstrate substantive support competition. of the Bureau’s policy on diversity. VII. Agency Contact Achievable and relevant features should VI.2. Administrative and National For questions about this be cited in both program administration Policy Requirements announcement, contact: Amy Schulz, (selection of participants, program Terms and Conditions for the Program Officer, Office of Citizen venue and program evaluation) and Administration of ECA agreements Exchanges, ECA/PE/C/PY, Room 220, program content (orientation and wrap- include the following: Reference Number ECA/PE/C/PY–09– up sessions, program meetings, and Office of Management and Budget 05, U.S. Department of State, SA–44, resource materials). Circular A–122, ‘‘Cost Principles for 301 4th Street, SW., Washington, DC 4. Institutional Capacity: Proposed Nonprofit Organizations.’’ 20547, phone: (202) 453–8158 and fax personnel and institutional resources Office of Management and Budget (202) 453–8169, E-mail: should be adequate and appropriate to Circular A–21, ‘‘Cost Principles for [email protected]. achieve the program or project’s goals. Educational Institutions.’’ All correspondence with the Bureau 5. Institution’s Record/Ability: OMB Circular A–87, ‘‘Cost Principles concerning this RFGP should reference Proposals should demonstrate an for State, Local and Indian the above title and number ECA/PE/C/ institutional record of successful Governments’’. PY–09–05. exchange programs, including OMB Circular No. A–110 (Revised), Please read the complete responsible fiscal management and full Uniform Administrative Requirements announcement before sending inquiries

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or submitting proposals. Once the RFGP DEPARTMENT OF TRANSPORTATION comments, go to http:// deadline has passed, Bureau staff may www.regulations.gov at any time or not discuss this competition with Federal Motor Carrier Safety Room W12–140 on the ground level of applicants until the proposal review Administration the West Building, 1200 New Jersey process has been completed. [Docket No. FMCSA–2008–0336] Avenue, SE., Washington, DC 20590– VIII. Other Information 0001 between 9 a.m. and 5 p.m., Agency Information Collection Monday through Friday, except Federal Notice Activities; New Information Collection: holidays. The FDMS is available 24 The terms and conditions published Annual Commercial Vehicle Driver hours each day, 365 days each year. If in this RFGP are binding and may not Survey: Work and Compensation you want acknowledgement that we be modified by any Bureau received your comments, please include AGENCY: Federal Motor Carrier Safety representative. Explanatory information a self-addressed, stamped envelope or Administration (FMCSA), DOT. provided by the Bureau that contradicts post card or print the acknowledgement published language will not be binding. ACTION: Notice and request for page that appears after submitting Issuance of the RFGP does not comments. online. constitute an award commitment on the Privacy Act: Anyone may search the SUMMARY: In accordance with the part of the Government. The Bureau electronic form of all comments Paperwork Reduction Act of 1995, reserves the right to reduce, revise, or received into any of our dockets by the FMCSA announces its plan to submit increase proposal budgets in accordance name of the individual submitting the the Information Collection Request (ICR) with the needs of the program and the comment (or of the person signing the described below to the Office of availability of funds. Awards made will comment, if submitted on behalf of an Management and Budget (OMB) for its be subject to periodic reporting and association, business, labor union, etc.). review and approval and invites public evaluation requirements per section VI.3 You may review the DOT’s complete comment. The purpose of this above. Privacy Act Statement in the Federal information collection is to acquire Register on April 11, 2000 (65 FR Dated: December 2, 2008. general information regarding the 19476). This information is also Goli Ameri, commercial motor vehicle driving available at http://docketsinfo.dot.gov. Assistant Secretary for Educational and population and specific information on Cultural Affairs, Department of State. FOR FURTHER INFORMATION CONTACT: Dr. driver work history, work scheduling, Mindy Shalaby, Economist, Analysis [FR Doc. E8–29366 Filed 12–11–08; 8:45 am] and compensation. This information is Division, Office of Analysis, Research BILLING CODE 4710–05–P needed in many different types of and Technology, Federal Motor Carrier analyses conducted by the FMCSA and Safety Administration, 1200 New Jersey would benefit the FMCSA in assessing Ave., SE., Washington, DC 20590. TENNESSEE VALLEY AUTHORITY the impacts of proposed rules and the Telephone: (202) 493–0304; e-mail improvement of its safety programs. Renewal of the Regional Resource [email protected]. Requests for DATES: We must receive your comments Stewardship Council additional information or copies of the on or before February 10, 2009. information collection instrument and Pursuant to the Federal Advisory ADDRESSES: You may submit comments instructions should be directed to Dr. Committee Act (FACA) and 41 CFR bearing the Federal Docket Management Michelle Yeh, Engineering Psychologist, 102–3.65, and following consultation System (FDMS) Docket Number Human Factors Division, Volpe National with the Committee Management FMCSA–2008–0336 using any of the Transportation Systems Center, 55 Secretariat, General Services following methods: Broadway, Cambridge, MA 02124. Administration (GSA), notice is hereby • Federal eRulemaking Portal: Go to Telephone: (617) 494–3459; e-mail given that the Regional Resource http://www.regulations.gov. Follow the [email protected]. Office hours are Stewardship Council (Council) has been online instructions for submitting from 9 a.m. to 5 p.m., Monday through renewed for a two-year period beginning comments. Friday, except Federal holidays. February 2, 2009. The Council will • Mail: Docket Management Facility; SUPPLEMENTARY INFORMATION: provide advice to the Tennessee Valley U.S. Department of Transportation, 1200 Background: The Federal Motor Carrier Authority (TVA) on issues affecting New Jersey Avenue, SE., West Building Safety Administration (FMCSA) needs a natural resource stewardship activities. Ground Floor, Room W12–140, better understanding of the commercial Numerous public and private entities Washington, DC 20590–0001. motor vehicle (CMV) driving are traditionally involved in the • Hand Delivery: West Building population. Driver-related factors are an stewardship of the natural resources of Ground Floor, Room W12–140, 1200 important consideration in CMV the Tennessee Valley region. It has been New Jersey Avenue, SE., Washington, crashes, but there is no central determined that the Council continues DC 20590–0001 between 9 a.m. and nationwide source of information to be needed to provide an additional 5 p.m., e.t., Monday through Friday, describing the population of drivers mechanism for public input regarding except Federal holidays. operating CMVs in the United States stewardship issues. • Fax: 1–202–493–2251. Further information regarding this (US). Estimates of the number of advisory committee can be obtained Each submission must include the commercial drivers and particular from Beth A. Keel, 400 West Summit Agency name and the docket number for subsets of drivers (e.g., local, short-haul, Hill Drive, WT 11B–K, Knoxville, this Notice. Note that DOT posts all and long-haul) are needed and would Tennessee 37902–1499, (865) 632–6113. comments received without change to benefit FMCSA in assessing the impacts http://www.regulations.gov, including of proposed rules and the improvement Anda A. Ray, any personal information included in a of its safety programs. In particular, Senior Vice President, Office of Environment comment. Please see the Privacy Act information on driver work history, and Research, Tennessee Valley Authority. heading below. work schedule, and compensation is [FR Doc. E8–29437 Filed 12–11–08; 8:45 am] Docket: For access to the docket to needed in many different types of BILLING CODE 8120–08–P read background documents or analyses conducted by the FMCSA.

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Driver work history addresses how information. The agency will summarize comments, go to http:// long a CMV driver has been working in or include your comments in the request www.regulations.gov at any time or the industry, his/her level of experience, for OMB’s clearance of this information Room W12–140 on the ground level of and his/her type of experience. These collection. the West Building, 1200 New Jersey items include questions regarding driver Issued on: December 5, 2008. Avenue, SE., Washington, DC, between tenure with his/her current employer Terry Shelton, 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The and the number of past employers to Associate Administrator for Research and provide information regarding the driver Information Technology. FDMS is available 24 hours each day, 365 days each year. If you want turnover rate. Items also collect [FR Doc. E8–29414 Filed 12–11–08; 8:45 am] information about driver training to acknowledgment that we received your BILLING CODE 4910–EX–P understand how drivers learned to comments, please include a self- operate their CMVs and the amount of addressed, stamped envelope or training that is ongoing in the industry. DEPARTMENT OF TRANSPORTATION postcard or print the acknowledgement Driver work schedule examines the page that appears after submitting issue of how much drivers work and the Federal Motor Carrier Safety comments on-line. activities in which they are engaged Administration Privacy Act: Anyone may search the when they work (e.g., driving time, electronic form of all comments [Docket ID FMCSA–2008–0341] loading time, waiting time). FMCSA is received into any of our dockets by the interested in understanding whether Qualification of Drivers; Exemption name of the individual submitting the drivers’ work schedules are tracked and Applications; Diabetes comment (or of the person signing the how they are tracked (e.g., with paper comment, if submitted on behalf of an log books or Electronic On-Board AGENCY: Federal Motor Carrier Safety association, business, labor union, etc.). Recorders (EOBRs). Finally, driver Administration (FMCSA). You may review the DOT’s complete compensation collects information on ACTION: Notice of applications for Privacy Act Statement in the Federal how much drivers earn and how they exemptions from the diabetes standard; Register published on April 11, 2000 are paid (e.g., salary, by hour, or by request for comments. (65 FR 19476). This information is also mile). This data will allow FMCSA to available at http://Docketinfo.dot.gov. SUMMARY: FMCSA announces receipt of estimate an average wage rate, which FOR FURTHER INFORMATION CONTACT: Dr. applications from 84 individuals for can be used to understand the cost Mary D. Gunnels, Director, Medical exemptions from the prohibition against imposed on drivers by current and Programs, (202) 366–4001, persons with insulin-treated diabetes proposed regulations. [email protected], FMCSA, mellitus (ITDM) operating commercial The goals of this survey are to acquire Department of Transportation, 1200 motor vehicles (CMVs) in interstate general demographic information New Jersey Avenue, SE., Room W64– commerce. If granted, the exemptions regarding the commercial motor vehicle would enable these individuals with 224, Washington, DC 20590–0001. driving population, and specific ITDM to operate commercial motor Office hours are from 8:30 a.m. to 5 information on driver work history, vehicles in interstate commerce. p.m., Monday through Friday, except work scheduling, and compensation. Federal holidays. DATES: Comments must be received on Data for this project will be collected via SUPPLEMENTARY INFORMATION: driver interviews. The results of the or before January 12, 2009. information collection will be ADDRESSES: You may submit comments Background summarized in a report for the FMCSA bearing the Federal Docket Management Under 49 U.S.C. 31136(e) and 31315, and made available to the public. System (FDMS) Docket ID FMCSA– FMCSA may grant an exemption for a 2- Title: Annual Commercial Vehicle 2007–0341 using any of the following year period if it finds ‘‘such exemption Driver Survey: Work and Compensation. methods: would likely achieve a level of safety • OMB Control Number: 2126–XXXX. Federal eRulemaking Portal: Go to that is equivalent to, or greater than, the Type of Request: New collection. http://www.regulations.gov. Follow the level that would be achieved absent Respondents: Commercial motor on-line instructions for submitting such exemption.’’ The statutes also vehicle drivers. comments. • allow the Agency to renew exemptions Estimated Number of Respondents: Mail: Docket Management Facility; at the end of the 2-year period. The 84 576 commercial motor vehicle drivers. U.S. Department of Transportation, 1200 individuals listed in this notice have Estimated Time per Response: 15 New Jersey Avenue, SE., West Building recently requested an exemption from minutes per response. Ground Floor, Room W12–140, the diabetes prohibition in 49 CFR Expiration Date: N/A. Washington, DC 20590–0001. 391.41(b) (3), which applies to drivers of Frequency of Response: Once. • Hand Delivery: West Building CMVs in interstate commerce. Estimated Total Annual Burden: 144 Ground Floor, Room W12–140, 1200 Accordingly, the Agency will evaluate hours [576 respondents × 15 minutes/60 New Jersey Avenue, SE., Washington, the qualifications of each applicant to minutes per response = 144]. DC, between 9 a.m. and 5 p.m., Monday determine whether granting the Public Comments Invited: You are through Friday, except Federal holidays. asked to comment on any aspect of this • Fax: 1–202–493–2251. exemption will achieve the required information collection, including: (1) Each submission must include the level of safety mandated by the statutes. Whether the proposed collection is Agency name and the docket ID for this Qualifications of Applicants necessary for the performance of Notice. Note that DOT posts all FMCSA’s functions; (2) the accuracy of comments received without change to Edwin K. Anderson the estimated burden; (3) ways for the http://www.regulations.gov, including Mr. Anderson, age 57, has had ITDM FMCSA to enhance the quality, any personal information included in a since 2007. His endocrinologist usefulness, and clarity of the collected comment. Please see the Privacy Act examined him in 2008 and certified that information; and (4) ways that the heading below. he has had no hypoglycemic reactions burden could be minimized without Docket: For access to the docket to resulting in loss of consciousness, reducing the quality of the collected read background documents or requiring the assistance of another

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person, or resulting in impaired safely. Mr. Bailor meets the diabetic retinopathy. He holds a Class B cognitive function that occurred without requirements of the vision standard at CDL from Illinois. warning in the past 5 years; understands 49 CFR 391.41(b)(10). His Melvin J. Boney diabetes management and monitoring; ophthalmologist examined him in 2008 and has stable control of his diabetes and certified that he has stable non- Mr. Boney, 58, has had ITDM since using insulin, and is able to drive a proliferative diabetic retinopathy. He 2006. His endocrinologist examined him CMV safely. Mr. Anderson meets the holds a Class D operator’s license from in 2008 and certified that he has had no requirements of the vision standard at New York. hypoglycemic reactions resulting in loss 49 CFR 391.41(b)(10). His optometrist of consciousness, requiring the Kenneth E. Benoit examined him in 2008 and certified that assistance of another person, or he does not have diabetic retinopathy. Mr. Benoit, 66, has had ITDM since resulting in impaired cognitive function He holds a Class A Commercial Driver’s 2005. His endocrinologist examined him that occurred without warning in the License (CDL) from Wisconsin. in 2008 and certified that he has had no past 5 years; understands diabetes hypoglycemic reactions resulting in loss management and monitoring; and has Robert S. Althouse of consciousness, requiring the stable control of his diabetes using Mr. Althouse, 53, has had ITDM since assistance of another person, or insulin, and is able to drive a CMV 2001. His endocrinologist examined him resulting in impaired cognitive function safely. Mr. Boney meets the in 2008 and certified that he has had no that occurred without warning in the requirements of the vision standard at hypoglycemic reactions resulting in loss past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist of consciousness, requiring the management and monitoring; and has examined him in 2008 and certified that assistance of another person, or stable control of his diabetes using he does not have diabetic retinopathy. resulting in impaired cognitive function insulin, and is able to drive a CMV He holds a Class A CDL from Virginia. that occurred without warning in the safely. Mr. Benoit meets the past 5 years; understands diabetes requirements of the vision standard at Christopher D. Bostic management and monitoring; and has 49 CFR 391.41(b)(10). His optometrist Mr. Bostic, 23, has had ITDM since stable control of his diabetes using examined him in 2008 and certified that 2001. His endocrinologist examined him insulin, and is able to drive a CMV he does not have diabetic retinopathy. in 2008 and certified that he has had no safely. Mr. Althouse meets the He holds a Class A CDL from hypoglycemic reactions resulting in loss requirements of the vision standard at Connecticut. of consciousness, requiring the 49 CFR 391.41(b)(10). His assistance of another person, or Thomas S. Benson ophthalmologist examined him in 2008 resulting in impaired cognitive function and certified that he does not have Mr. Benson, 32, has had ITDM since that occurred without warning in the diabetic retinopathy. He holds a Class C 2005. His endocrinologist examined him past 5 years; understands diabetes operator’s license from Pennsylvania. in 2008 and certified that he has had no management and monitoring; and has hypoglycemic reactions resulting in loss stable control of his diabetes using James G. Arnoldussen, Sr. of consciousness, requiring the insulin, and is able to drive a CMV Mr. Arnoldussen, 49, has had ITDM assistance of another person, or safely. Mr. Bostic meets the since 1978. His endocrinologist resulting in impaired cognitive function requirements of the vision standard at examined him in 2008 and certified that that occurred without warning in the 49 CFR 391.41(b)(10). His he has had no hypoglycemic reactions past 5 years; understands diabetes ophthalmologist examined him in 2008 resulting in loss of consciousness, management and monitoring; and has and certified that he does not have requiring the assistance of another stable control of his diabetes using diabetic retinopathy. He holds a Class D person, or resulting in impaired insulin, and is able to drive a CMV chauffeur’s license from Louisiana. cognitive function that occurred without safely. Mr. Benson meets the warning in the past 5 years; understands requirements of the vision standard at Walter R. Braxton diabetes management and monitoring; 49 CFR 391.41(b)(10). His optometrist Mr. Braxton, 50, has had ITDM since and has stable control of his diabetes examined him in 2008 and certified that 2008. His endocrinologist examined him using insulin, and is able to drive a he does not have diabetic retinopathy. in 2008 and certified that he has had no CMV safely. Mr. Arnoldussen meets the He holds a Class A CDL from North hypoglycemic reactions resulting in loss requirements of the vision standard at Carolina. of consciousness, requiring the 49 CFR 391.41(b)(10). His assistance of another person, or Dennis A. Boelens ophthalmologist examined him in 2008 resulting in impaired cognitive function and certified that he has stable non- Mr. Boelens, 56, has had ITDM since that occurred without warning in the proliferative diabetic retinopathy. He 1994. His endocrinologist examined him past 5 years; understands diabetes holds a Class A CDL from Wisconsin. in 2008 and certified that he has had no management and monitoring; and has hypoglycemic reactions resulting in loss stable control of his diabetes using William B. Bailor of consciousness, requiring the insulin, and is able to drive a CMV Mr. Bailor, 59, has had ITDM since assistance of another person, or safely. Mr. Braxton meets the 1977. His endocrinologist examined him resulting in impaired cognitive function requirements of the vision standard at in 2008 and certified that he has had no that occurred without warning in the 49 CFR 391.41(b)(10). His optometrist hypoglycemic reactions resulting in loss past 5 years; understands diabetes examined him in 2008 and certified that of consciousness, requiring the management and monitoring; and has he does not have diabetic retinopathy. assistance of another person, or stable control of his diabetes using He holds a Class A CDL from Virginia. resulting in impaired cognitive function insulin, and is able to drive a CMV that occurred without warning in the safely. Mr. Boelens meets the Gordon M. Caldwell past 5 years; understands diabetes requirements of the vision standard at Mr. Caldwell, 47, has had ITDM since management and monitoring; and has 49 CFR 391.41(b)(10). His 2007. His endocrinologist examined him stable control of his diabetes using ophthalmologist examined him in 2008 in 2008 and certified that he has had no insulin, and is able to drive a CMV and certified that he does not have hypoglycemic reactions resulting in loss

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of consciousness, requiring the CMV safely. Mr. Cromwell meets the Anthony. Espinosa assistance of another person, or requirements of the vision standard at Mr. Espinosa, 37, has had ITDM since resulting in impaired cognitive function 49 CFR 391.41(b)(10). His optometrist 2005. His endocrinologist examined him that occurred without warning in the examined him in 2008 and certified that in 2008 and certified that he has had no past 5 years; understands diabetes he does not have diabetic retinopathy. hypoglycemic reactions resulting in loss management and monitoring; and has He holds a Class B CDL from Illinois. of consciousness, requiring the stable control of his diabetes using Trenn A. Davis assistance of another person, or insulin, and is able to drive a CMV resulting in impaired cognitive function Mr. Davis, 38, has had ITDM since safely. Mr. Caldwell meets the that occurred without warning in the 1980. His endocrinologist examined him requirements of the vision standard at past 5 years; understands diabetes in 2008 and certified that he has had no 49 CFR 391.41(b)(10). His optometrist management and monitoring; and has hypoglycemic reactions resulting in loss examined him in 2008 and certified that stable control of his diabetes using of consciousness, requiring the he does not have diabetic retinopathy. insulin, and is able to drive a CMV assistance of another person, or He holds a CDL from Washington. safely. Mr. Espinosa meets the resulting in impaired cognitive function requirements of the vision standard at Jake C. Cogswell that occurred without warning in the 49 CFR 391.41(b)(10). His optometrist Mr. Cogswell, 25, has had ITDM since past 5 years; understands diabetes examined him in 2008 and certified that 1992. His endocrinologist examined him management and monitoring; and has he does not have diabetic retinopathy. in 2008 and certified that he has had no stable control of his diabetes using He holds a Class A CDL from Missouri. hypoglycemic reactions resulting in loss insulin, and is able to drive a CMV of consciousness, requiring the safely. Mr. Davis meets the requirements Gregory W. Eylar assistance of another person, or of the vision standard at 49 CFR Mr. Eylar, 52, has had ITDM since resulting in impaired cognitive function 391.41(b)(10). His ophthalmologist 2008. His endocrinologist examined him that occurred without warning in the examined him in 2008 and certified that in 2008 and certified that he has had no past 5 years; understands diabetes he has stable non-proliferative diabetic hypoglycemic reactions resulting in loss management and monitoring; and has retinopathy. He holds a Class A CDL of consciousness, requiring the stable control of his diabetes using from Kansas. assistance of another person, or insulin, and is able to drive a CMV Bobby J. Davison resulting in impaired cognitive function safely. Mr. Cogswell meets the that occurred without warning in the Mr. Davison, 35, has had ITDM since requirements of the vision standard at past 5 years; understands diabetes 1998. His endocrinologist examined him 49 CFR 391.41(b)(10). His optometrist management and monitoring; and has examined him in 2008 and certified that in 2008 and certified that he has had no stable control of his diabetes using he does not have diabetic retinopathy. hypoglycemic reactions resulting in loss insulin, and is able to drive a CMV He holds a Class D operator’s license of consciousness, requiring the safely. Mr. Eylar meets the requirements from Minnesota. assistance of another person, or of the vision standard at 49 CFR resulting in impaired cognitive function Eric W. Crawford 391.41(b)(10). His optometrist examined that occurred without warning in the him in 2008 and certified that he does Mr. Crawford, 26, has had ITDM since past 5 years; understands diabetes not have diabetic retinopathy. He holds 2004. His endocrinologist examined him management and monitoring; and has a Class A CDL from Washington. in 2008 and certified that he has had no stable control of his diabetes using hypoglycemic reactions resulting in loss insulin, and is able to drive a CMV Stephen R. Ferrario of consciousness, requiring the safely. Mr. Davison meets the Mr. Ferrario, 42, has had ITDM since assistance of another person, or requirements of the vision standard at 1994. His endocrinologist examined him resulting in impaired cognitive function 49 CFR 391.41(b)(10). His in 2008 and certified that he has had no that occurred without warning in the ophthalmologist examined him in 2008 hypoglycemic reactions resulting in loss past 5 years; understands diabetes and certified that he does not have of consciousness, requiring the management and monitoring; and has diabetic retinopathy. He holds a Class B assistance of another person, or stable control of his diabetes using CDL from Louisiana. resulting in impaired cognitive function insulin, and is able to drive a CMV Donald J. DeBaets that occurred without warning in the safely. Mr. Crawford meets the past 5 years; understands diabetes requirements of the vision standard at Mr. DeBaets, 69, has had ITDM since management and monitoring; and has 49 CFR 391.41(b)(10). His optometrist 2008. His endocrinologist examined him stable control of his diabetes using examined him in 2008 and certified that in 2008 and certified that he has had no insulin, and is able to drive a CMV he does not have diabetic retinopathy. hypoglycemic reactions resulting in loss safely. Mr. Ferrario meets the He holds a Class A CDL from Texas. of consciousness, requiring the requirements of the vision standard at assistance of another person, or Merle N. Cromwell 49 CFR 391.41(b)(10). His optometrist resulting in impaired cognitive function examined him in 2008 and certified that Mr. Cromwell, 66, has had ITDM that occurred without warning in the he does not have diabetic retinopathy. since 2007. His endocrinologist past 5 years; understands diabetes He holds a Class A CDL from California. examined him in 2008 and certified that management and monitoring; and has he has had no hypoglycemic reactions stable control of his diabetes using Fred L. Frisch resulting in loss of consciousness, insulin, and is able to drive a CMV Mr. Frisch, 43, has had ITDM since requiring the assistance of another safely. Mr. DeBaets meets the 2008. His endocrinologist examined him person, or resulting in impaired requirements of the vision standard at in 2008 and certified that he has had no cognitive function that occurred without 49 CFR 391.41(b)(10). His hypoglycemic reactions resulting in loss warning in the past 5 years; understands ophthalmologist examined him in 2008 of consciousness, requiring the diabetes management and monitoring; and certified that he does not have assistance of another person, or and has stable control of his diabetes diabetic retinopathy. He holds a Class A resulting in impaired cognitive function using insulin, and is able to drive a CDL from Wisconsin. that occurred without warning in the

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past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist Danny E. Hillier management and monitoring; and has examined him in 2008 and certified that Mr. Hillier, 46, has had ITDM since stable control of his diabetes using he does not have diabetic retinopathy. 2008. His endocrinologist examined him insulin, and is able to drive a CMV He holds a Class A CDL from North in 2008 and certified that he has had no safely. Mr. Frisch meets the Carolina. hypoglycemic reactions resulting in loss requirements of the vision standard at Daniel D. Greenwell of consciousness, requiring the 49 CFR 391.41(b)(10). His assistance of another person, or ophthalmologist examined him in 2008 Mr. Greenwell, 43, has had ITDM resulting in impaired cognitive function and certified that he does have stable since 1989. His endocrinologist that occurred without warning in the non-proliferative diabetic retinopathy. examined him in 2008 and certified that past 5 years; understands diabetes He holds a Class A CDL from Ohio. he has had no hypoglycemic reactions management and monitoring; and has Raymond J. Ford resulting in loss of consciousness, stable control of his diabetes using insulin, and is able to drive a CMV Mr. Ford, 54, has had ITDM since requiring the assistance of another safely. Mr. Hillier meets the 1988. His endocrinologist examined him person, or resulting in impaired requirements of the vision standard at in 2008 and certified that he has had no cognitive function that occurred without 49 CFR 391.41(b)(10). His optometrist hypoglycemic reactions resulting in loss warning in the past 5 years; understands examined him in 2008 and certified that of consciousness, requiring the diabetes management and monitoring; he does not have diabetic retinopathy. assistance of another person, or and has stable control of his diabetes He holds a Class A CDL from North resulting in impaired cognitive function using insulin, and is able to drive a Dakota. that occurred without warning in the CMV safely. Mr. Greenwell meets the past 5 years; understands diabetes requirements of the vision standard at John H. Hilliges 49 CFR 391.41(b)(10). His management and monitoring; and has Mr. Hilliges, 53, has had ITDM since stable control of his diabetes using ophthalmologist examined him in 2008 2007. His endocrinologist examined him insulin, and is able to drive a CMV and certified that he does have stable in 2008 and certified that he has had no safely. Mr. Ford meets the requirements non-proliferative diabetic retinopathy. hypoglycemic reactions resulting in loss of the vision standard at 49 CFR He holds a Class A CDL from New York. of consciousness, requiring the 391.41(b)(10). His ophthalmologist William G. Hansen assistance of another person, or examined him in 2008 and certified that resulting in impaired cognitive function he has stable non-proliferative diabetic Mr. Hansen, 56, has had ITDM since that occurred without warning in the retinopathy. He holds a Class C 2006. His endocrinologist examined him past 5 years; understands diabetes operator’s license from California. in 2008 and certified that he has had no management and monitoring; and has Kevin J. Fries hypoglycemic reactions resulting in loss stable control of his diabetes using of consciousness, requiring the insulin, and is able to drive a CMV Mr. Fries, 48, has had ITDM since assistance of another person, or safely. Mr. Hilliges meets the 1994. His endocrinologist examined him resulting in impaired cognitive function requirements of the vision standard at in 2008 and certified that he has had no that occurred without warning in the 49 CFR 391.41(b)(10). His optometrist hypoglycemic reactions resulting in loss past 5 years; understands diabetes examined him in 2008 and certified that of consciousness, requiring the management and monitoring; and has he does not have diabetic retinopathy. assistance of another person, or stable control of his diabetes using He holds a Class A CDL from Nebraska. resulting in impaired cognitive function insulin, and is able to drive a CMV that occurred without warning in the Thomas Hogan safely. Mr. Hansen meets the past 5 years; understands diabetes requirements of the vision standard at Mr. Hogan, 77, has had ITDM since management and monitoring; and has 49 CFR 391.41(b)(10). His 2007. His endocrinologist examined him stable control of his diabetes using ophthalmologist examined him in 2008 in 2008 and certified that he has had no insulin, and is able to drive a CMV and certified that he does have stable hypoglycemic reactions resulting in loss safely. Mr. Fries meets the requirements non-proliferative diabetic retinopathy. of consciousness, requiring the of the vision standard at 49 CFR He holds a Class A CDL from Oregon. assistance of another person, or 391.41(b)(10). His optometrist examined resulting in impaired cognitive function him in 2008 and certified that he does George H. Hayes, Jr. that occurred without warning in the not have diabetic retinopathy. He holds past 5 years; understands diabetes a Class D operator’s license from Mr. Hayes, 54, has had ITDM since management and monitoring; and has Montana. 1995. His endocrinologist examined him stable control of his diabetes using in 2008 and certified that he has had no Douglas E. Fuller insulin, and is able to drive a CMV hypoglycemic reactions resulting in loss safely. Mr. Hogan meets the Mr. Fuller, 42, has had ITDM since of consciousness, requiring the requirements of the vision standard at 2004. His endocrinologist examined him assistance of another person, or 49 CFR 391.41(b)(10). His in 2008 and certified that he has had no resulting in impaired cognitive function ophthalmologist examined him in 2008 hypoglycemic reactions resulting in loss that occurred without warning in the and certified that he has stable non- of consciousness, requiring the past 5 years; understands diabetes proliferative diabetic retinopathy. He assistance of another person, or management and monitoring; and has holds a Class A CDL from Ohio. resulting in impaired cognitive function stable control of his diabetes using that occurred without warning in the insulin, and is able to drive a CMV Harvey J. Hollins past 5 years; understands diabetes safely. Mr. Hayes meets the Mr. Hollins, 61, has had ITDM since management and monitoring; and has requirements of the vision standard at 2003. His endocrinologist examined him stable control of his diabetes using 49 CFR 391.41(b)(10). His optometrist in 2008 and certified that he has had no insulin, and is able to drive a CMV examined him in 2008 and certified that hypoglycemic reactions resulting in loss safely. Mr. Fuller meets the he does not have diabetic retinopathy. of consciousness, requiring the requirements of the vision standard at He holds a Class A CDL from Virginia. assistance of another person, or

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resulting in impaired cognitive function safely. Mr. Huffman meets the He holds a Class C operator’s license that occurred without warning in the requirements of the vision standard at from Maryland. past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist John H. Kingsley management and monitoring; and has examined him in 2008 and certified that stable control of his diabetes using he does not have diabetic retinopathy. Mr. Kingsley, 44, has had ITDM since insulin, and is able to drive a CMV He holds a Class A CDL from South 2008. His endocrinologist examined him safely. Mr. Hollins meets the Dakota. in 2008 and certified that he has had no requirements of the vision standard at hypoglycemic reactions resulting in loss Tyson C. Johnson 49 CFR 391.41(b)(10). His of consciousness, requiring the ophthalmologist examined him in 2008 Mr. Johnson, 25, has had ITDM since assistance of another person, or and certified that he does not have 1993. His endocrinologist examined him resulting in impaired cognitive function diabetic retinopathy. He holds a Class A in 2008 and certified that he has had no that occurred without warning in the CDL from Nevada. hypoglycemic reactions resulting in loss past 5 years; understands diabetes of consciousness, requiring the management and monitoring; and has John Horta assistance of another person, or stable control of his diabetes using Mr. Horta, 45, has had ITDM since resulting in impaired cognitive function insulin, and is able to drive a CMV 2008. His endocrinologist examined him that occurred without warning in the safely. Mr. Kingsley meets the in 2008 and certified that he has had no past 5 years; understands diabetes requirements of the vision standard at hypoglycemic reactions resulting in loss management and monitoring; and has 49 CFR 391.41(b)(10). His of consciousness, requiring the stable control of his diabetes using ophthalmologist examined him in 2008 assistance of another person, or insulin, and is able to drive a CMV and certified that he does not have resulting in impaired cognitive function safely. Mr. Johnson meets the diabetic retinopathy. He holds a Class A that occurred without warning in the requirements of the vision standard at CDL from Virginia. past 5 years; understands diabetes 49 CFR 391.41(b)(10). His management and monitoring; and has ophthalmologist examined him in 2008 Gary J. Klostermann stable control of his diabetes using and certified that he has stable non- Mr. Klostermann, 52, has had ITDM insulin, and is able to drive a CMV proliferative diabetic retinopathy. He since 2008. His endocrinologist safely. Mr. Horta meets the requirements holds a Class C operator’s license from examined him in 2008 and certified that of the vision standard at 49 CFR Pennsylvania. he has had no hypoglycemic reactions 391.41(b)(10). His ophthalmologist resulting in loss of consciousness, Ken M. Jorgenson examined him in 2008 and certified that requiring the assistance of another he does have stable non-proliferative Mr. Jorgenson, 56, has had ITDM person, or resulting in impaired diabetic retinopathy. He holds a Class D since 2008. His endocrinologist cognitive function that occurred without operator’s license from Arizona. examined him in 2008 and certified that warning in the past 5 years; understands he has had no hypoglycemic reactions diabetes management and monitoring; Paris J. Howell resulting in loss of consciousness, and has stable control of his diabetes Mr. Howell, 43, has had ITDM since requiring the assistance of another using insulin, and is able to drive a 2006. His endocrinologist examined him person, or resulting in impaired CMV safely. Mr. Klostermann meets the in 2008 and certified that he has had no cognitive function that occurred without requirements of the vision standard at hypoglycemic reactions resulting in loss warning in the past 5 years; understands 49 CFR 391.41(b)(10). His optometrist of consciousness, requiring the diabetes management and monitoring; examined him in 2008 and certified that assistance of another person, or and has stable control of his diabetes he does not have diabetic retinopathy. resulting in impaired cognitive function using insulin, and is able to drive a He holds a Class A CDL from Iowa. that occurred without warning in the CMV safely. Mr. Jorgenson meets the past 5 years; understands diabetes requirements of the vision standard at Steven F. Kohalmi management and monitoring; and has 49 CFR 391.41(b)(10). His Mr. Kohalmi, 52, has had ITDM since stable control of his diabetes using ophthalmologist examined him in 2008 2006. His endocrinologist examined him insulin, and is able to drive a CMV and certified that he does not have in 2008 and certified that he has had no safely. Mr. Howell meets the diabetic retinopathy. He holds a Class A hypoglycemic reactions resulting in loss requirements of the vision standard at CDL from Minnesota. of consciousness, requiring the 49 CFR 391.41(b)(10). His assistance of another person, or Barry J. Kelley ophthalmologist examined him in 2008 resulting in impaired cognitive function and certified that he does not have Mr. Kelley, 35, has had ITDM since that occurred without warning in the diabetic retinopathy. He holds a Class D 2007. His endocrinologist examined him past 5 years; understands diabetes operator’s license from Tennessee. in 2008 and certified that he has had no management and monitoring; and has hypoglycemic reactions resulting in loss stable control of his diabetes using Eric J. Huffman of consciousness, requiring the insulin, and is able to drive a CMV Mr. Huffman, 29, has had ITDM since assistance of another person, or safely. Mr. Kohalmi meets the 1990. His endocrinologist examined him resulting in impaired cognitive function requirements of the vision standard at in 2008 and certified that he has had no that occurred without warning in the 49 CFR 391.41(b)(10). His hypoglycemic reactions resulting in loss past 5 years; understands diabetes ophthalmologist examined him in 2008 of consciousness, requiring the management and monitoring; and has and certified that he does not have assistance of another person, or stable control of his diabetes using diabetic retinopathy. He holds a Class C resulting in impaired cognitive function insulin, and is able to drive a CMV operator’s license from Pennsylvania. that occurred without warning in the safely. Mr. Kelley meets the past 5 years; understands diabetes requirements of the vision standard at Peter D. Krenz management and monitoring; and has 49 CFR 391.41(b)(10). His optometrist Mr. Krenz, 55, has had ITDM since stable control of his diabetes using examined him in 2008 and certified that 2007. His endocrinologist examined him insulin, and is able to drive a CMV he does not have diabetic retinopathy. in 2008 and certified that he has had no

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hypoglycemic reactions resulting in loss stable control of his diabetes using and certified that he does have stable of consciousness, requiring the insulin, and is able to drive a CMV non-proliferative diabetic retinopathy. assistance of another person, or safely. Mr. Lavoie meets the He holds a Class B CDL from Illinois. resulting in impaired cognitive function requirements of the vision standard at that occurred without warning in the 49 CFR 391.41(b)(10). His Robert H. McCann, III. past 5 years; understands diabetes ophthalmologist examined him in 2008 Mr. McCann, 51, has had ITDM since management and monitoring; and has and certified that he does not have 2007. His endocrinologist examined him stable control of his diabetes using diabetic retinopathy. He holds a Class A in 2008 and certified that he has had no insulin, and is able to drive a CMV CDL from Oregon. hypoglycemic reactions resulting in loss safely. Mr. Krenz meets the Dennis M. Lester of consciousness, requiring the requirements of the vision standard at assistance of another person, or 49 CFR 391.41(b)(10). His optometrist Mr. Lester, 47, has had ITDM since resulting in impaired cognitive function examined him in 2008 and certified that 2007. His endocrinologist examined him that occurred without warning in the he does not have diabetic retinopathy. in 2008 and certified that he has had no past 5 years; understands diabetes He holds a Class C operator’s license hypoglycemic reactions resulting in loss from Oregon. of consciousness, requiring the management and monitoring; and has assistance of another person, or stable control of his diabetes using Robert J. Lampman resulting in impaired cognitive function insulin, and is able to drive a CMV Mr. Lampman, 66, has had ITDM that occurred without warning in the safely. Mr. McCann meets the since 2002. His endocrinologist past 5 years; understands diabetes requirements of the vision standard at examined him in 2008 and certified that management and monitoring; and has 49 CFR 391.41(b)(10). His he has had no hypoglycemic reactions stable control of his diabetes using ophthalmologist examined him in 2008 resulting in loss of consciousness, insulin, and is able to drive a CMV and certified that he has stable non- requiring the assistance of another safely. Mr. Lester meets the proliferative diabetic retinopathy. He person, or resulting in impaired requirements of the vision standard at holds a Class B CDL from Maryland. cognitive function that occurred without 49 CFR 391.41(b)(10). His optometrist Lewis S. Needles warning in the past 5 years; understands examined him in 2008 and certified that diabetes management and monitoring; he does not have diabetic retinopathy. Mr. Needles, 54, has had ITDM since and has stable control of his diabetes He holds a Class C operator’s license 2006. His endocrinologist examined him using insulin, and is able to drive a from North Carolina. in 2008 and certified that he has had no CMV safely. Mr. Lampman meets the Dario Lopez hypoglycemic reactions resulting in loss requirements of the vision standard at of consciousness, requiring the 49 CFR 391.41(b)(10). His Mr. Lopez, 27, has had ITDM since assistance of another person, or 1996. His endocrinologist examined him ophthalmologist examined him in 2008 resulting in impaired cognitive function in 2008 and certified that he has had no and certified that he does not have that occurred without warning in the hypoglycemic reactions resulting in loss diabetic retinopathy. He holds a Class C past 5 years; understands diabetes of consciousness, requiring the CDL from Michigan. management and monitoring; and has assistance of another person, or stable control of his diabetes using Jason C. Lang resulting in impaired cognitive function insulin, and is able to drive a CMV Mr. Lang, 33, has had ITDM since that occurred without warning in the safely. Mr. Needles meets the 2008. His endocrinologist examined him past 5 years; understands diabetes requirements of the vision standard at in 2008 and certified that he has had no management and monitoring; and has 49 CFR 391.41(b)(10). His optometrist hypoglycemic reactions resulting in loss stable control of his diabetes using examined him in 2008 and certified that of consciousness, requiring the insulin, and is able to drive a CMV he does not have diabetic retinopathy. assistance of another person, or safely. Mr. Lopez meets the He holds a Class C CDL from New resulting in impaired cognitive function requirements of the vision standard at Jersey. that occurred without warning in the 49 CFR 391.41(b)(10). His optometrist past 5 years; understands diabetes examined him in 2008 and certified that Derald W. Newton management and monitoring; and has he does not have diabetic retinopathy. stable control of his diabetes using He holds a Class D operator’s license Mr. Newton, 55, has had ITDM since insulin, and is able to drive a CMV from Illinois. 1973. His endocrinologist examined him safely. Mr. Lang meets the requirements in 2008 and certified that he has had no Jerald L. Marquardt of the vision standard at 49 CFR hypoglycemic reactions resulting in loss 391.41(b)(10). His optometrist examined Mr. Marquardt, 48, has had ITDM of consciousness, requiring the him in 2008 and certified that he does since 1989. His endocrinologist assistance of another person, or not have diabetic retinopathy. He holds examined him in 2008 and certified that resulting in impaired cognitive function a Class A CDL from Vermont. he has had no hypoglycemic reactions that occurred without warning in the resulting in loss of consciousness, past 5 years; understands diabetes Kevin J. Lavoie requiring the assistance of another management and monitoring; and has Mr. Lavoie, 41, has had ITDM since person, or resulting in impaired stable control of his diabetes using 1988. His endocrinologist examined him cognitive function that occurred without insulin, and is able to drive a CMV in 2008 and certified that he has had no warning in the past 5 years; understands safely. Mr. Newton meets the hypoglycemic reactions resulting in loss diabetes management and monitoring; requirements of the vision standard at of consciousness, requiring the and has stable control of his diabetes 49 CFR 391.41(b)(10). His assistance of another person, or using insulin, and is able to drive a ophthalmologist examined him in 2008 resulting in impaired cognitive function CMV safely. Mr. Marquardt meets the and certified that he has stable non- that occurred without warning in the requirements of the vision standard at proliferative diabetic retinopathy. He past 5 years; understands diabetes 49 CFR 391.41(b)(10). His holds a Class D operator’s license from management and monitoring; and has ophthalmologist examined him in 2008 New Mexico.

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Galen L. Nightingale requiring the assistance of another insulin, and is able to drive a CMV Mr. Nightingale, 65, has had ITDM person, or resulting in impaired safely. Mr. Pream meets the since 2005. His endocrinologist cognitive function that occurred without requirements of the vision standard at examined him in 2008 and certified that warning in the past 5 years; understands 49 CFR 391.41(b)(10). His he has had no hypoglycemic reactions diabetes management and monitoring; ophthalmologist examined him in 2008 resulting in loss of consciousness, and has stable control of his diabetes and certified that he does not have requiring the assistance of another using insulin, and is able to drive a diabetic retinopathy. He holds a Class D person, or resulting in impaired CMV safely. Mr. Pankiewicz meets the operator’s license from Minnesota. requirements of the vision standard at cognitive function that occurred without Travis W. Proctor warning in the past 5 years; understands 49 CFR 391.41(b)(10). His diabetes management and monitoring; ophthalmologist examined him in 2008 Mr. Proctor, 31, has had ITDM since and has stable control of his diabetes and certified that he has stable 1995. His endocrinologist examined him using insulin, and is able to drive a proliferative diabetic retinopathy. He in 2008 and certified that he has had no CMV safely. Mr. Nightingale meets the holds a Class C operator’s license from hypoglycemic reactions resulting in loss requirements of the vision standard at Pennsylvania. of consciousness, requiring the 49 CFR 391.41(b)(10). His Jody A. Peckels assistance of another person, or ophthalmologist examined him in 2008 resulting in impaired cognitive function Mr. Peckels, 48, has had ITDM since and certified that he has stable non- that occurred without warning in the 2002. His endocrinologist examined him proliferative diabetic retinopathy. He past 5 years; understands diabetes in 2008 and certified that he has had no holds a Class A CDL from Kansas. management and monitoring; and has hypoglycemic reactions resulting in loss stable control of his diabetes using Chris C. Northway of consciousness, requiring the insulin, and is able to drive a CMV assistance of another person, or Mr. Northway, 47, has had ITDM safely. Mr. Proctor meets the resulting in impaired cognitive function since 2000. His endocrinologist requirements of the vision standard at that occurred without warning in the examined him in 2008 and certified that 49 CFR 391.41(b)(10). His past 5 years; understands diabetes he has had no hypoglycemic reactions ophthalmologist examined him in 2008 management and monitoring; and has resulting in loss of consciousness, and certified that he does not have stable control of his diabetes using requiring the assistance of another diabetic retinopathy. He holds a Class C insulin, and is able to drive a CMV person, or resulting in impaired operator’s license from Georgia. cognitive function that occurred without safely. Mr. Peckels meets the warning in the past 5 years; understands requirements of the vision standard at William B. Racobs 49 CFR 391.41(b)(10). His diabetes management and monitoring; Mr. Racobs, 62, has had ITDM since ophthalmologist examined him in 2008 and has stable control of his diabetes 2008. His endocrinologist examined him and certified that he does not have using insulin, and is able to drive a in 2008 and certified that he has had no diabetic retinopathy. He holds a Class A CMV safely. Mr. Northway meets the hypoglycemic reactions resulting in loss CDL from Oregon. requirements of the vision standard at of consciousness, requiring the 49 CFR 391.41(b)(10). His optometrist James H. Pfeiffer assistance of another person, or examined him in 2008 and certified that resulting in impaired cognitive function he does not have diabetic retinopathy. Mr. Pfeiffer, 35, has had ITDM since 2008. His endocrinologist examined him that occurred without warning in the He holds a Class A CDL from past 5 years; understands diabetes Wisconsin. in 2008 and certified that he has had no hypoglycemic reactions resulting in loss management and monitoring; and has John D. Owens of consciousness, requiring the stable control of his diabetes using Mr. Owens, 59, has had ITDM since assistance of another person, or insulin, and is able to drive a CMV 2005. His endocrinologist examined him resulting in impaired cognitive function safely. Mr. Racobs meets the in 2008 and certified that he has had no that occurred without warning in the requirements of the vision standard at hypoglycemic reactions resulting in loss past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist of consciousness, requiring the management and monitoring; and has examined him in 2008 and certified that assistance of another person, or stable control of his diabetes using he does not have diabetic retinopathy. resulting in impaired cognitive function insulin, and is able to drive a CMV He holds a Class A CDL from Iowa. that occurred without warning in the safely. Mr. Pfeiffer meets the Remson H. Rawson past 5 years; understands diabetes requirements of the vision standard at management and monitoring; and has 49 CFR 391.41(b)(10). His optometrist Mr. Rawson, 54, has had ITDM since stable control of his diabetes using examined him in 2008 and certified that 2008. His endocrinologist examined him insulin, and is able to drive a CMV he does not have diabetic retinopathy. in 2008 and certified that he has had no safely. Mr. Owens meets the He holds a Class A CDL from Illinois. hypoglycemic reactions resulting in loss of consciousness, requiring the requirements of the vision standard at Marc R. Pream 49 CFR 391.41(b)(10). His assistance of another person, or ophthalmologist examined him in 2008 Mr. Pream, 61, has had ITDM since resulting in impaired cognitive function and certified that he does not have 2005. His endocrinologist examined him that occurred without warning in the diabetic retinopathy. He holds a Class A in 2008 and certified that he has had no past 5 years; understands diabetes CDL from Indiana. hypoglycemic reactions resulting in loss management and monitoring; and has of consciousness, requiring the stable control of his diabetes using Theodore S. Pankiewicz assistance of another person, or insulin, and is able to drive a CMV Mr. Pankiewicz, 32, has had ITDM resulting in impaired cognitive function safely. Mr. Rawson meets the since 1978. His endocrinologist that occurred without warning in the requirements of the vision standard at examined him in 2008 and certified that past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist he has had no hypoglycemic reactions management and monitoring; and has examined him in 2008 and certified that resulting in loss of consciousness, stable control of his diabetes using he does not have diabetic retinopathy.

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He holds a Class A CDL from North in 2008 and certified that he has had no warning in the past 5 years; understands Carolina. hypoglycemic reactions resulting in loss diabetes management and monitoring; of consciousness, requiring the and has stable control of his diabetes Ann M. Reinke assistance of another person, or using insulin, and is able to drive a Ms. Reinke, 53, has had ITDM since resulting in impaired cognitive function CMV safely. Mr. Schroeder meets the 2008. Her endocrinologist examined her that occurred without warning in the requirements of the vision standard at in 2008 and certified that she has had past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist no hypoglycemic reactions resulting in management and monitoring; and has examined him in 2008 and certified that loss of consciousness, requiring the stable control of his diabetes using he does not have diabetic retinopathy. assistance of another person, or insulin, and is able to drive a CMV He holds a Class A CDL from New York. resulting in impaired cognitive function safely. Mr. Roen meets the requirements that occurred without warning in the of the vision standard at 49 CFR Michael W. Sharp past 5 years; understands diabetes 391.41(b)(10). His optometrist examined Mr. Sharp, 38, has had ITDM since management and monitoring; and has him in 2008 and certified that he does 2008. His endocrinologist examined him stable control of her diabetes using not have diabetic retinopathy. He holds in 2008 and certified that he has had no insulin, and is able to drive a CMV a Class B CDL from Wisconsin. hypoglycemic reactions resulting in loss safely. Ms. Reinke meets the Thomas C. Routon of consciousness, requiring the requirements of the vision standard at assistance of another person, or 49 CFR 391.41(b)(10). Her optometrist Mr. Routon, 38, has had ITDM since resulting in impaired cognitive function examined her in 2008 and certified that 2007. His endocrinologist examined him that occurred without warning in the she does not have diabetic retinopathy. in 2008 and certified that he has had no past 5 years; understands diabetes She holds a Class B CDL from hypoglycemic reactions resulting in loss management and monitoring; and has of consciousness, requiring the Wisconsin. stable control of his diabetes using assistance of another person, or insulin, and is able to drive a CMV Frank W. Reynolds resulting in impaired cognitive function safely. Mr. Sharp meets the Mr. Reynolds, 37, has had ITDM since that occurred without warning in the requirements of the vision standard at 2006. His endocrinologist examined him past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist in 2008 and certified that he has had no management and monitoring; and has examined him in 2008 and certified that hypoglycemic reactions resulting in loss stable control of his diabetes using he does not have diabetic retinopathy. of consciousness, requiring the insulin, and is able to drive a CMV He holds a Class A CDL from Missouri. assistance of another person, or safely. Mr. Routon meets the resulting in impaired cognitive function requirements of the vision standard at Nathaniel B. Shaw that occurred without warning in the 49 CFR 391.41(b)(10). His Mr. Shaw, 23, has had ITDM since past 5 years; understands diabetes ophthalmologist examined him in 2008 2003. His endocrinologist examined him management and monitoring; and has and certified that he has stable in 2008 and certified that he has had no stable control of his diabetes using proliferative diabetic retinopathy. He hypoglycemic reactions resulting in loss insulin, and is able to drive a CMV holds a Class D operator’s license from of consciousness, requiring the safely. Mr. Reynolds meets the Minnesota. assistance of another person, or requirements of the vision standard at Tyler A. Russell resulting in impaired cognitive function 49 CFR 391.41(b)(10). His optometrist that occurred without warning in the examined him in 2008 and certified that Mr. Russell, 25, has had ITDM since past 5 years; understands diabetes he does not have diabetic retinopathy. 2007. His endocrinologist examined him management and monitoring; and has He holds a Class C operator’s license in 2008 and certified that he has had no stable control of his diabetes using from North Carolina. hypoglycemic reactions resulting in loss of consciousness, requiring the insulin, and is able to drive a CMV Vincente L. Rodriquez assistance of another person, or safely. Mr. Shaw meets the requirements Mr. Rodriquez, 24, has had ITDM resulting in impaired cognitive function of the vision standard at 49 CFR since 1997. His endocrinologist that occurred without warning in the 391.41(b)(10). His ophthalmologist examined him in 2008 and certified that past 5 years; understands diabetes examined him in 2008 and certified that he has had no hypoglycemic reactions management and monitoring; and has he does not have diabetic retinopathy. resulting in loss of consciousness, stable control of his diabetes using He holds a Class A CDL from Illinois. requiring the assistance of another insulin, and is able to drive a CMV Sean L. Shidell person, or resulting in impaired safely. Mr. Russell meets the cognitive function that occurred without requirements of the vision standard at Mr. Shidell, 38, has had ITDM since warning in the past 5 years; understands 49 CFR 391.41(b)(10). His 2007. His endocrinologist examined him diabetes management and monitoring; ophthalmologist examined him in 2008 in 2008 and certified that he has had no and has stable control of his diabetes and certified that he does not have hypoglycemic reactions resulting in loss using insulin, and is able to drive a diabetic retinopathy. He holds a Class A of consciousness, requiring the CMV safely. Mr. Rodriquez meets the CDL from Massachusetts. assistance of another person, or requirements of the vision standard at resulting in impaired cognitive function Randy L. Schroeder 49 CFR 391.41(b)(10). His optometrist that occurred without warning in the examined him in 2008 and certified that Mr. Schroeder, 51, has had ITDM past 5 years; understands diabetes he does not have diabetic retinopathy. since 2003. His endocrinologist management and monitoring; and has He holds a Class B CDL from New examined him in 2008 and certified that stable control of his diabetes using Mexico. he has had no hypoglycemic reactions insulin, and is able to drive a CMV resulting in loss of consciousness, safely. Mr. Shidell meets the Bradley C. Roen requiring the assistance of another requirements of the vision standard at Mr. Roen, 47, has had ITDM since person, or resulting in impaired 49 CFR 391.41(b)(10). His optometrist 2007. His endocrinologist examined him cognitive function that occurred without examined him in 2008 and certified that

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he does not have diabetic retinopathy. in 2008 and certified that he has had no past 5 years; understands diabetes He holds a Class A CDL from Florida. hypoglycemic reactions resulting in loss management and monitoring; and has of consciousness, requiring the stable control of his diabetes using Wendell R. Shults assistance of another person, or insulin, and is able to drive a CMV Mr. Shults, 43, has had ITDM since resulting in impaired cognitive function safely. Mr. Thomas meets the 1991. His endocrinologist examined him that occurred without warning in the requirements of the vision standard at in 2008 and certified that he has had no past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist hypoglycemic reactions resulting in loss management and monitoring; and has examined him in 2008 and certified that of consciousness, requiring the stable control of his diabetes using he does not have diabetic retinopathy. assistance of another person, or insulin, and is able to drive a CMV He holds a Class A CDL from Kentucky. resulting in impaired cognitive function safely. Mr. Stokes meets the William J. Thomas that occurred without warning in the requirements of the vision standard at past 5 years; understands diabetes 49 CFR 391.41(b)(10). His Mr. Thomas, 60, has had ITDM since management and monitoring; and has ophthalmologist examined him in 2008 2008. His endocrinologist examined him stable control of his diabetes using and certified that he does not have in 2008 and certified that he has had no insulin, and is able to drive a CMV diabetic retinopathy. He holds a Class A hypoglycemic reactions resulting in loss safely. Mr. Shults meets the CDL from Florida. of consciousness, requiring the requirements of the vision standard at assistance of another person, or Gary E. Stone 49 CFR 391.41(b)(10). His optometrist resulting in impaired cognitive function examined him in 2008 and certified that Mr. Stone, 55, has had ITDM since that occurred without warning in the he does not have diabetic retinopathy. 2008. His endocrinologist examined him past 5 years; understands diabetes He holds a Class C operator’s license in 2008 and certified that he has had no management and monitoring; and has from Texas. hypoglycemic reactions resulting in loss stable control of his diabetes using of consciousness, requiring the insulin, and is able to drive a CMV Joseph B. Simon assistance of another person, or safely. Mr. Thomas meets the Mr. Simon, 37, has had ITDM since resulting in impaired cognitive function requirements of the vision standard at 1978. His endocrinologist examined him that occurred without warning in the 49 CFR 391.41(b)(10). His optometrist in 2008 and certified that he has had no past 5 years; understands diabetes examined him in 2008 and certified that hypoglycemic reactions resulting in loss management and monitoring; and has he does not have diabetic retinopathy. of consciousness, requiring the stable control of his diabetes using He holds a Class A CDL from North assistance of another person, or insulin, and is able to drive a CMV Carolina. resulting in impaired cognitive function safely. Mr. Stone meets the Kaleo B. Tokunaga that occurred without warning in the requirements of the vision standard at past 5 years; understands diabetes 49 CFR 391.41(b)(10). His optometrist Mr. Tokunaga, 40, has had ITDM management and monitoring; and has examined him in 2008 and certified that since 2008. His endocrinologist stable control of his diabetes using he does not have diabetic retinopathy. examined him in 2008 and certified that insulin, and is able to drive a CMV He holds a Class A CDL from he has had no hypoglycemic reactions safely. Mr. Simon meets the Pennsylvania. resulting in loss of consciousness, requirements of the vision standard at requiring the assistance of another Timothy D. Stone 49 CFR 391.41(b)(10). His person, or resulting in impaired ophthalmologist examined him in 2008 Mr. Stone, 26, has had ITDM since cognitive function that occurred without and certified that he has stable non- 2004. His endocrinologist examined him warning in the past 5 years; understands proliferative diabetic retinopathy. He in 2008 and certified that he has had no diabetes management and monitoring; holds a Class A CDL from New York. hypoglycemic reactions resulting in loss and has stable control of his diabetes of consciousness, requiring the using insulin, and is able to drive a David E. Steinke assistance of another person, or CMV safely. Mr. Tokunaga meets the Mr. Steinke, 64, has had ITDM since resulting in impaired cognitive function requirements of the vision standard at 2002. His endocrinologist examined him that occurred without warning in the 49 CFR 391.41(b)(10). His optometrist in 2008 and certified that he has had no past 5 years; understands diabetes examined him in 2008 and certified that hypoglycemic reactions resulting in loss management and monitoring; and has he does not have diabetic retinopathy. of consciousness, requiring the stable control of his diabetes using He holds a Class A CDL from Hawaii. assistance of another person, or insulin, and is able to drive a CMV John R. Turcotte resulting in impaired cognitive function safely. Mr. Stone meets the that occurred without warning in the requirements of the vision standard at Mr. Turcotte, 61, has had ITDM since past 5 years; understands diabetes 49 CFR 391.41(b)(10). His 2001. His endocrinologist examined him management and monitoring; and has ophthalmologist examined him in 2008 in 2008 and certified that he has had no stable control of his diabetes using and certified that he does not have hypoglycemic reactions resulting in loss insulin, and is able to drive a CMV diabetic retinopathy. He holds a Class D of consciousness, requiring the safely. Mr. Steinke meets the operator’s license from Arizona. assistance of another person, or requirements of the vision standard at resulting in impaired cognitive function Anthony A. Thomas 49 CFR 391.41(b)(10). His that occurred without warning in the ophthalmologist examined him in 2008 Mr. Thomas, 38, has had ITDM since past 5 years; understands diabetes and certified that he does not have 2008. His endocrinologist examined him management and monitoring; and has diabetic retinopathy. He holds a Class A in 2008 and certified that he has had no stable control of his diabetes using CDL from Wisconsin. hypoglycemic reactions resulting in loss insulin, and is able to drive a CMV of consciousness, requiring the safely. Mr. Turcotte meets the Floyd T. Stokes assistance of another person, or requirements of the vision standard at Mr. Stokes, 56, has had ITDM since resulting in impaired cognitive function 49 CFR 391.41(b)(10). His optometrist 2006. His endocrinologist examined him that occurred without warning in the examined him in 2008 and certified that

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he does not have diabetic retinopathy. examined her in 2008 and certified that limited operating, monitoring and He holds a Class A CDL from Maine. she has had no hypoglycemic reactions medical requirements that are deemed resulting in loss of consciousness, medically necessary. FMCSA concluded Danny J. Watson requiring the assistance of another that all of the operating, monitoring and Mr. Watson, 45, has had ITDM since person, or resulting in impaired medical requirements set out in the 1978. His endocrinologist examined him cognitive function that occurred without September 3, 2003 Notice, except as in 2008 and certified that he has had no warning in the past 5 years; understands modified, were in compliance with hypoglycemic reactions resulting in loss diabetes management and monitoring; section 4129(d). Therefore, all of the of consciousness, requiring the and has stable control of her diabetes requirements set out in the September 3, assistance of another person, or using insulin, and is able to drive a 2003 Notice, except as modified by the resulting in impaired cognitive function CMV safely. Ms. Woehrman meets the Notice in the Federal Register on that occurred without warning in the requirements of the vision standard at November 8, 2005 (70 FR 67777), past 5 years; understands diabetes 49 CFR 391.41(b)(10). Her remain in effect. management and monitoring; and has ophthalmologist examined her in 2008 Issued on: December 5, 2008. stable control of his diabetes using and certified that she does not have insulin, and is able to drive a CMV diabetic retinopathy. She holds a Class Larry W. Minor, safely. Mr. Watson meets the A CDL from Kansas. Associate Administrator for Policy and requirements of the vision standard at Program Development. Request for Comments 49 CFR 391.41(b)(10). His optometrist [FR Doc. E8–29418 Filed 12–11–08; 8:45 am] examined him in 2008 and certified that In accordance with 49 U.S.C. 31136(e) BILLING CODE 4910–EX–P he does not have diabetic retinopathy. and 31315, FMCSA requests public He holds a Class D operator’s license comment from all interested persons on from Kentucky. the exemption petitions described in DEPARTMENT OF TRANSPORTATION this notice. We will consider all Eric W. Williams comments received before the close of Federal Motor Carrier Safety Mr. Williams, 52, has had ITDM since business on the closing date indicated Administration 2005. His endocrinologist examined him in the date section of the Notice. in 2008 and certified that he has had no FMCSA notes that Section 4129 of the [Docket ID FMCSA–2008–0340] hypoglycemic reactions resulting in loss Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Qualification of Drivers; Exemption of consciousness, requiring the Applications; Vision assistance of another person, or Legacy for Users (SAFETEA–LU) resulting in impaired cognitive function requires the Secretary to revise its AGENCY: Federal Motor Carrier Safety that occurred without warning in the diabetes exemption program established Administration (FMCSA), DOT. on September 3, 2003 (68 FR 52441).1 past 5 years; understands diabetes ACTION: Notice of applications for management and monitoring; and has The revision must provide for exemptions; request for comments. stable control of his diabetes using individual assessment of drivers with insulin, and is able to drive a CMV diabetes mellitus, and be consistent SUMMARY: FMCSA announces receipt of safely. Mr. Williams meets the with the criteria described in section applications from 24 individuals for requirements of the vision standard at 4018 of the Transportation Equity Act exemptions from the vision requirement 49 CFR 391.41(b)(10). His optometrist for the 21st Century (49 U.S.C. 31305). in the Federal Motor Carrier Safety examined him in 2008 and certified that Section 4129 requires: (1) the Regulations. If granted, the exemptions he does not have diabetic retinopathy. elimination of the requirement for three would enable these individuals to He holds a Class C operator’s license years of experience operating CMVs qualify as drivers of commercial motor from Maryland. while being treated with insulin; and (2) vehicles (CMVs) in interstate commerce the establishment of a specified without meeting the Federal vision Russell A. Williams minimum period of insulin use to standard. Mr. Williams, 62, has had ITDM since demonstrate stable control of diabetes 2005. His endocrinologist examined him before being allowed to operate a CMV. DATES: Comments must be received on in 2008 and certified that he has had no In response to section 4129, FMCSA or before January 12, 2009. hypoglycemic reactions resulting in loss made immediate revisions to the ADDRESSES: You may submit comments of consciousness, requiring the diabetes exemption program established bearing the Federal Docket Management assistance of another person, or by the September 3, 2003 Notice. System (FDMS) Docket ID FMCSA– resulting in impaired cognitive function FMCSA discontinued use of the 3-year 2008–0340 using any of the following that occurred without warning in the driving experience and fulfilled the methods: past 5 years; understands diabetes requirements of section 4129 while • Federal eRulemaking Portal: Go to management and monitoring; and has continuing to ensure that operation of http://www.regulations.gov. Follow the stable control of his diabetes using CMVs by drivers with ITDM will on-line instructions for submitting insulin, and is able to drive a CMV achieve the requisite level of safety comments. safely. Mr. Williams meets the required of all exemptions granted • Mail: Docket Management Facility; requirements of the vision standard at under 49 USC. 31136 (e). U.S. Department of Transportation, 1200 49 CFR 391.41(b)(10). His Section 4129(d) also directed FMCSA New Jersey Avenue, SE., West Building ophthalmologist examined him in 2008 to ensure that drivers of CMVs with Ground Floor, Room W12–140, and certified that he has stable ITDM are not held to a higher standard Washington, DC 20590–0001. proliferative diabetic retinopathy. He than other drivers, with the exception of • Hand Delivery: West Building holds a Class A CDL from Wisconsin. Ground Floor, Room W12–140, 1200 1 Section 4129(a) refers to the 2003 Notice as a New Jersey Avenue, SE., Washington, Kimberly A. Woehrman ‘‘final rule.’’ However, the 2003 Notice did not issue a ‘‘final rule’’ but did establish the procedures and DC, between 9 a.m. and 5 p.m., Monday Ms. Woehrman, 44, has had ITDM standards for issuing exemptions for drivers with through Friday, except Federal holidays. since 2001. Her endocrinologist ITDM. • Fax: 1–202–493–2251.

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Each submission must include the Qualifications of Applicants Henry L. Decker Agency name and the docket ID for this Bryant M. Adams Mr. Decker, 58, has had refractive Notice. Note that DOT posts all amblyopia in his left eye since birth. comments received without change to Mr. Adams, age 43, has had The best corrected visual acuity in his http://www.regulations.gov, including amblyopia in his left eye since right eye is 20/20 and in the left, 20/200. any personal information included in a childhood. The best corrected visual Following an examination in 2008, his comment. Please see the Privacy Act acuity in his right eye is 20/20 and in ophthalmologist noted, ‘‘In my opinion, heading below. the left eye, 20/200. Following an Mr. Decker has sufficient vision to Docket: For access to the docket to examination in 2008, his optometrist perform the driving tasks to operate a read background documents or noted, ‘‘I certify that in my medical commercial vehicle.’’ Mr. Decker comments, go to http:// opinion, Bryant Adams has sufficient reported that he has driven straight www.regulations.gov at any time or vision to perform the driving tasks trucks for 40 years, accumulating Room W12–140 on the ground level of required to operate a commercial 600,000 miles, tractor-trailer the West Building, 1200 New Jersey vehicle.’’ Mr. Adams reported that he combinations for 7 years, accumulating Avenue, SE., Washington, DC, between has driven straight trucks for 131⁄2 years, 59,500 miles, and buses for 6 months, 9 a.m. and 5 p.m., Monday through accumulating 120,150 miles. He holds a accumulating 1,800 miles. He holds a Friday, except Federal holidays. The Class C operator’s license from Class B CDL from Pennsylvania. His FDMS is available 24 hours each day, California. His driving record for the last driving record for the last 3 years shows 365 days each year. If you want 3 years shows no crashes and two no crashes and no convictions for acknowledgment that we received your convictions for moving violations in a moving violations in a CMV. comments, please include a self- CMV, failure to obey traffic signals. addressed, stamped envelope or Thomas E. Dewitt, Jr. postcard or print the acknowledgement Ricky J. Childress Mr. Dewitt, 47, has had amblyopia in page that appears after submitting his right eye since birth. The best comments on-line. Mr. Childress, 60, has complete loss corrected visual acuity in his right eye Privacy Act: Anyone may search the of vision in his right eye due to retinal is 20/50 and in the left, 20/20. electronic form of all comments detachment since 2001. The best Following an examination in 2008, his received into any of our dockets by the corrected visual acuity in his left eye is optometrist noted, ‘‘In my medical name of the individual submitting the 20/30. Following an examination in opinion, applicant has sufficient vision comment (or of the person signing the 2008, his ophthalmologist noted, ‘‘In my to perform driving tasks required to comment, if submitted on behalf of an opinion, Mr. Childress has sufficient operate a commercial vehicle.’’ Mr. association, business, labor union, etc.). vision to perform driving tasks required Dewitt reported that he has driven You may review the DOT’s complete to operate a commercial vehicle, based straight trucks for 12 years, Privacy Act Statement in the Federal on how he has performed and accumulating 156,000 miles. He holds a Register published on April 11, 2000 functioned exceedingly well in his field Class A CDL from Ohio. His driving (65 FR 19476). This information is also despite vision.’’ Mr. Childress reported record for the last 3 years shows no available at http://Docketsinfo.dot.gov. that he has driven straight trucks for 10 crashes and no convictions for moving FOR FURTHER INFORMATION CONTACT: Dr. years, accumulating 437,500 miles, and violations in a CMV. Mary D. Gunnels, Director, Medical tractor-trailer combinations for 15 years, David L. Dykman Programs, (202) 366–4001, accumulating 2.3 million miles. He holds a Class D operator’s license from Mr. Dykman, 48, has complete loss of [email protected], FMCSA, vision in his right eye due traumatic Department of Transportation, 1200 Alabama. His driving record for the last 3 years shows one crash, and no injury that occurred in 2002. The visual New Jersey Avenue, SE., Room W64– acuity in the left eye is 20/20. Following 224, Washington, DC 20590–0001. convictions for moving violations in a CMV. an examination in 2008, his Office hours are from 8:30 a.m. to 5 ophthalmologist noted, ‘‘It is my p.m., Monday through Friday, except Thomas A. Crowell medical opinion that David has Federal holidays. sufficient vision to perform the driving SUPPLEMENTARY INFORMATION: Mr. Crowell, 50, has a ruptured globe tasks required to operate a commercial in his right eye due to a traumatic injury Background vehicle.’’ Mr. Dykman reported that he sustained as a child. The best corrected has driven straight trucks for 191⁄2 years, Under 49 U.S.C. 31136(e) and 31315, visual acuity in his right eye is 20/400 accumulating 163,800 miles, and FMCSA may grant an exemption for a 2- and in the left, 20/20. Following an tractor-trailer combinations for 61⁄2 year period if it finds ‘‘such exemption examination in 2008, his years, accumulating 45,825 miles. He would likely achieve a level of safety ophthalmologist noted, ‘‘I certify that holds a Class B CDL from Idaho. His that is equivalent to, or greater than, the Thomas Crowell has sufficient vision to driving record for the last 3 years shows level that would be achieved absent perform driving tasks required to no crashes and no convictions for such exemption.’’ FMCSA can renew operate a commercial vehicle.’’ Mr. moving violations in a CMV. exemptions at the end of each 2-year Crowell reported that he has driven period. The 24 individuals listed in this straight trucks for 2 years, accumulating Milan D. Frasier notice each have requested an 60,000 miles, and tractor-trailer Mr. Frasier, 58, has loss of vision in exemption from the vision requirement combinations for 4 years, accumulating his right eye due to retinal detachment in 49 CFR 391.41(b)(10), which applies 495,496 miles. He holds a Class A that occurred in 2004. The best to drivers of CMVs in interstate Commercial Driver’s License (CDL) from corrected visual acuity in his right eye commerce. Accordingly, the Agency North Carolina. His driving record for is hand-motion vision and in the left, will evaluate the qualifications of each the last 3 years shows one crash, for 20/20. Following an examination in applicant to determine whether granting which he was not cited, and one 2008, his ophthalmologist noted, ‘‘It is the exemption will achieve the required conviction for a moving violation in a my medical opinion that Mr. Fraiser has level of safety mandated by statute. CMV: failure to obey a traffic sign. sufficient vision to drive a commercial

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vehicle.’’ Mr. Frasier reported that he Crayton Jones, Jr. injury sustained in 1990. The visual has driven tractor-trailer combinations Mr. Jones, 72, has complete loss of acuity in his right eye is 20/15 and in for 30 years, accumulating 514,500 vision in his right eye due to a traumatic the left eye, 20/400. Following an miles. He holds a Class A CDL from injury since childhood. The best examination in 2008, his optometrist Idaho. His driving record for the last 3 corrected visual acuity in his left eye is noted, ‘‘It is my medical/optometric years shows no crashes and no 20/20. Following an examination in opinion that David Lancaster has convictions for moving violations in a 2008, his ophthalmologist noted, ‘‘I sufficient vision to perform the driving CMV. certify that in my medical opinion, he tasks required to operate a commercial vehicle.’’ Mr. Lancaster reported that he Wilfred J. Gagnon has sufficient vision to perform the driving tasks required to operate a has driven straight trucks for 20 years, Mr. Gagnon, 72, has complete loss of commercial vehicle.’’ Mr. Jones reported accumulating 800,000 miles. He holds a vision in his right eye due to a traumatic that he has driven straight trucks for 6 Class O operator’s license from injury that occurred in 2000. The visual years, accumulating 150,000 miles, Nebraska. Class O operator’s license acuity in his left eye is 20/20. Following tractor-trailer combinations for 6 years, allows him to drive any non-commercial an examination in 2008, his optometrist accumulating 150,000 miles, and buses vehicle except motorcycles. His driving noted, ‘‘In my medical opinion, I believe for 1 year, accumulating 1,000 miles. He record for the last 3 years shows no Mr. Gagnon’s vision in his left eye is holds a Class R operator’s license from crashes and no convictions for moving sufficient to operate a commercial Colorado, which allows him to drive violations in a CMV. vehicle without glasses.’’ Mr. Gagnon any motor vehicle with a gross weight reported that he has driven straight Brian M. Madaya of less than 26,001 pounds. His driving trucks for 54 years, accumulating 1.9 Mr. Madaya, 48, has a retinal record for the last 3 years shows no million miles, and tractor-trailer detachment in his right eye since 2004. crashes and no convictions for moving combinations for 30 years, accumulating The best corrected visual acuity in his violations in a CMV. 1.1 million miles. He holds a Class A right eye is 20/400 and in the left eye, CDL from Vermont. His driving record Timonthy L. Kelly 20/20. Following an examination in for the last 3 years shows no crashes and Mr. Kelly, 44, has complete loss of 2008, his optometrist noted, ‘‘Based on no convictions for moving violations in vision in his right eye due to a traumatic his very stable findings over the last a CMV. injury sustained in 1984. The visual several years, I am confident that his vision is completely in line with the Grady O. Gilliland acuity in his left eye is 20/20. Following an examination in 2008, his optometrist Department of Transportation Mr. Gilliland, 82, has loss of vision in noted, ‘‘In my medical opinion, Tim has guidelines for operation of commercial his right eye due to optic nerve sufficient vision to perform the driving motor vehicles.’’ Mr. Madaya reported hypoplasia since birth. The best tasks required to operate a commercial that he has driven straight trucks for 20 corrected visual acuity in his right eye vehicle.’’ Mr. Kelly reported that he has years, accumulating 620,000 miles and is 20/400 and in the left, 20/30. driven tractor-trailer combinations for 8 tractor-trailer combinations for 71⁄2 Following an examination in 2008, his years, accumulating 560,000 miles. He years, accumulating 525,000 miles. He ophthalmologist noted, ‘‘I feel that he holds a Class A CDL from Texas. His holds a Class A CDL from Pennsylvania. has sufficient vision to perform driving driving record for the last 3 years shows His driving record for the last 3 years tasks required to operate commercial no crashes and no convictions for shows no crashes and no convictions for vehicles knowing that his right eye has moving violations in a CMV. moving violations in a CMV. always been a poor vision eye all this life.’’ Mr. Gilliland reported that he has Lewis A. Kielhack Joe A. McIlroy driven straight trucks for 64 years, Mr. Kielhack, 35, has a macular scar Mr. McIlroy, 49, has a prosthetic left accumulating 320,000 miles. He holds a that caused loss of vision in his right eye due to a traumatic injury sustained Class D operator’s license from eye due to a traumatic injury sustained in 1988. The best corrected visual acuity Alabama. His driving record for the last in 1990. The best corrected visual acuity in his right eye is 20/15. Following an 3 years shows no crashes and no in his right eye is 20/400 and in the left examination in 2008, his convictions for moving violations in a eye, 20/20. Following an examination in ophthalmologist noted, ‘‘In my opinion, CMV. 2008, his optometrist noted, ‘‘In my Mr. McIlroy has sufficient vision to perform the driving tasks to operate a Harold J. Haier opinion, Mr. Kielhack has sufficient vision to perform the driving tasks commercial vehicle.’’ Mr. McIlroy Mr. Haier, 42, has had amblyopia required to operate a commercial reported that he has driven straight since birth. The best corrected visual vehicle. His vision has been stable for trucks for 28 years, accumulating 56,000 acuity in his right eye is 20/20 and in over 18 years, and there is no indication miles, and tractor-trailer combinations the left, 20/400. Following an that his vision will change.’’ Mr. for 7 years, accumulating 280,000 miles. examination in 2008, his optometrist Kielhack reported that he has driven He holds a Class A CDL from New York. noted, ‘‘It is my opinion that Mr. Haier straight trucks for 14 years, His driving record for the last 3 years has sufficient vision to operate a accumulating 655,200 miles, and shows no crashes and two convictions commercial vehicle.’’ Mr. Haier reported tractor-trailer combinations for 8 years, for moving violations in a CMV, failure that he has driven straight trucks for 24 accumulating 24,000 miles. He holds a to obey traffic signals. years, accumulating 432,000 miles, Class A CDL from Illinois. His driving Harry J. McSuley, Jr. tractor-trailer combinations for less than record for the last 3 years shows no 1 year, accumulating 800 miles, and crashes and no convictions for moving Mr. McSuley, 71, has loss of vision in buses for less than 1 year, accumulating violations in a CMV. his left eye due to retinal vein occlusion 4,000 miles. He holds a Class A CDL that occurred in 1998. The best from New York. His driving record for David Lancaster corrected visual acuity in the right eye the last 3 years shows no crashes and no Mr. Lancaster, 44, has loss of vision is 20/20 and in the left eye, 20/200. convictions for moving violations in a in his left eye due to a central scotoma Following an examination in 2008, his CMV. that occurred as a result of a traumatic ophthalmologist noted, ‘‘In my

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professional medical opinion, I feel crashes and no convictions for moving Jeremichael Steele Harry McSuley has sufficient vision to violations in a CMV. Mr. Steele, 41, has loss of vision in his perform the driving tasks required to Stanley J. Morris left eye due to a retinal scar sustained operate a commercial vehicle.’’ Mr. from a traumatic injury as a child. The McSuley reported that he has driven Mr. Morris, 46, has complete loss of vision in his left eye due to a traumatic best corrected visual acuity in his right straight trucks for 55 years, eye is 20/20. Following an examination accumulating 1,650,000 miles, and injury since childhood. The best in 2008, his optometrist noted, ‘‘In my tractor-trailer combinations for 53 years, corrected visual acuity in his right eye medical opinion, Mr. Steele has accumulating 3,445,000 miles. He holds is 20/20. Following an examination in sufficient vision to perform the driving a Class A CDL from Pennsylvania. His 2008, his optometrist noted, ‘‘I certify tasks to operate a commercial vehicle.’’ driving record for the last 3 years shows that, in my medical opinion, the Mr. Steele reported that he has driven no crashes and no convictions for applicant’s visual deficiency is stable tractor-trailer combinations for 6 years, moving violations in a CMV. and has sufficient vision to perform the driving tasks required to operate a accumulating 240,000 miles, and buses Robert S. Metcalf commercial motor vehicle, and that the for 7 years, accumulating 63,000 miles. Mr. Metcalf, 57, has had amblyopia in applicant’s condition will not adversely He holds a Class A CDL from North his left eye since birth. The visual acuity affect his ability to operate a commercial Carolina. His driving record for the last in his right eye is 20/20 and in the left, motor vehicle safely.’’ Mr. Morris 3 years shows no crashes, and one 20/300. Following an examination in reported that he has driven straight conviction for a moving violation in a 2008, his optometrist noted, ‘‘Aside trucks for 11 years, accumulating CMV; he changed lanes improperly. from needing glasses for reading, Mr. 264,000 miles, and tractor-trailer Request for Comments Metcalf should have not problems combinations for 6 years, accumulating driving a commercial vehicle without 399,000 million miles. He holds a Class In accordance with 49 U.S.C. 31136(e) correction.’’ Mr. Metcalf reported that A CDL from Missouri. His driving and 31315, FMCSA requests public he has driven straight trucks for 31 record for the last 3 years shows no comment from all interested persons on years, accumulating 620,000 miles, and crashes and no convictions for moving the exemption petitions described in tractor-trailer combinations for 28 years, violations in a CMV. this notice. The Agency will consider all accumulating 1.7 million miles. He comments received before the close of Barbara C. Pennington holds a Class A CDL from Arizona. His business January 12, 2009. Comments driving record for the last 3 years shows Ms. Pennington, 45, has a prosthetic will be available for examination in the no crashes and no convictions for right eye due to enucleation following a docket at the location listed under the moving violations in a CMV. traumatic injury in 1991. The best ADDRESSES section of this notice. The corrected visual acuity in her left eye is Agency will file comments received Elmer R. Miller 20/20. Following an examination in after the comment closing date in the Mr. Miller, 64, has complete loss of 2008, her ophthalmologist noted, ‘‘The public docket, and will consider them to vision in his left eye due to a traumatic vision is stable in her left eye and Ms. the extent practicable. In addition to late injury sustained in 1986. The best Pennington is able to operate a comments, FMCSA will also continue to corrected visual acuity in his right eye commercial motor vehicle from an file, in the public docket, relevant is 20/30. Following an examination in ocular standpoint.’’ Ms. Pennington information that becomes available after 2008, his ophthalmologist noted, ‘‘I reported that she has driven straight the comment closing date. Interested certify that, in my medical opinion, he trucks for 1 year, accumulating 50,000 persons should monitor the public has sufficient vision to perform the miles, and tractor-trailer combinations docket for new material. driving tasks required to operate a for 15 years, accumulating 1.5 million Issued on: December 5, 2008. commercial vehicle.’’ Mr. Miller miles. She holds a Class A CDL from Larry W. Minor, reported that he has driven straight Florida. Her driving record for the last Associate Administrator for Policy and trucks for 47 years, accumulating 3 years shows no crashes and no Program Development. 564,000 miles. He holds a Class C convictions for moving violations in a [FR Doc. E8–29415 Filed 12–11–08; 8:45 am] operator’s license from Illinois. His CMV. BILLING CODE 4910–EX–P driving record for the last 3 years shows Ronald M. Scott no crashes and no convictions for Mr. Scott, 52, has loss of vision in his moving violations in a CMV. DEPARTMENT OF TRANSPORTATION right eye due to a traumatic injury that Richard L. Moreland occurred in 1984. The visual acuity in Federal Motor Carrier Safety Mr. Moreland, 49, has complete loss his right eye is count fingers and in the Administration of vision in his right eye due to a left eye, 20/15. Following an traumatic injury sustained in 1966. The examination in 2008, his optometrist [Docket No. FMCSA–00–7006; FMCSA–00– visual acuity in his left eye is 20/20. noted, ‘‘I feel that Mr. Scott has more 7363; FMCSA–01–10570; FMCSA–02–12294; Following an examination in 2008, his than sufficient vision in his left eye to FMCSA–04–18885; FMCSA–06–24783] optometrist noted, ‘‘Based on these perform the driving tasks required to Qualification of Drivers; Exemption findings, I feel Richard L. Moreland has operate a commercial vehicle.’’ Mr. Applications; Vision the visual abilities to safely continue to Scott reported that he has driven operate a commercial motor vehicle in straight trucks for 30 years, AGENCY: Federal Motor Carrier Safety interstate commerce because his visual accumulating 2.6 million miles, and Administration (FMCSA), DOT. loss has been present since 1966.’’ Mr. tractor-trailer combinations for 30 years, ACTION: Notice of renewal of Miller reported that he has driven accumulating 3 million miles. He holds exemptions; request for comments. straight trucks for 23 years, a Class A CDL from Indiana. His driving accumulating 230,000 miles. He holds a record for the last 3 years shows no SUMMARY: FMCSA announces its Class A CDL from Missouri. His driving crashes and no convictions for moving decision to renew the exemptions from record for the last 3 years shows no violations in a CMV. the vision requirement in the Federal

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Motor Carrier Safety Regulations for 12 comment (or of the person signing the file and retain a copy of the certification individuals. FMCSA has statutory comment, if submitted on behalf of an on his/her person while driving for authority to exempt individuals from association, business, labor union, etc.). presentation to a duly authorized the vision requirement if the You may review the DOT’s complete Federal, State, or local enforcement exemptions granted will not Privacy Act Statement in the Federal official. Each exemption will be valid compromise safety. The Agency has Register published on April 11, 2000 for two years unless rescinded earlier by concluded that granting these (65 FR 19476). This information is also FMCSA. The exemption will be exemption renewals will provide a level available at http://DocketInfo.dot.gov. rescinded if: (1) The person fails to of safety that is equivalent to, or greater FOR FURTHER INFORMATION CONTACT: Dr. comply with the terms and conditions than, the level of safety maintained Mary D. Gunnels, Director, Medical of the exemption; (2) the exemption has without the exemptions for these Programs, (202)–366–4001, resulted in a lower level of safety than commercial motor vehicle (CMV) [email protected], FMCSA, was maintained before it was granted; or drivers. Department of Transportation, 1200 (3) continuation of the exemption would DATES: This decision is effective January New Jersey Avenue, SE., Room W64– not be consistent with the goals and 3, 2009. Comments must be received on 224, Washington, DC 20590–0001. objectives of 49 U.S.C. 31136(e) and or before January 12, 2009. Office hours are from 8:30 a.m. to 5 p.m. 31315. ADDRESSES: You may submit comments Monday through Friday, except Federal Basis for Renewing Exemptions bearing the Federal Docket Management holidays. System (FDMS) Docket ID FMCSA–00– SUPPLEMENTARY INFORMATION: Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer 7006; FMCSA–00–7363; FMCSA–01– Background 10570; FMCSA–02–12294; FMCSA–04– than two years from its approval date 18885; FMCSA–06–24783, using any of Under 49 U.S.C. 31136(e) and 31315, and may be renewed upon application the following methods. FMCSA may renew an exemption from for additional two year periods. In • Federal eRulemaking Portal: Go to the vision requirements in 49 CFR accordance with 49 U.S.C. 31136(e) and http://www.regulations.gov. Follow the 391.41(b)(10), which applies to drivers 31315, each of the 12 applicants has on-line instructions for submitting of CMVs in interstate commerce, for a satisfied the entry conditions for comments. two-year period if it finds ‘‘such obtaining an exemption from the vision • Mail: Docket Management Facility; exemption would likely achieve a level requirements (73 FR 20245; 65 FR U.S. Department of Transportation, 1200 of safety that is equivalent to, or greater 57230; 67 FR 71610; 69 FR 64810; 71 FR New Jersey Avenue, SE., West Building than, the level that would be achieved 66217; 57 FR 57266; 69 FR 62741; 71 FR Ground Floor, Room W12–140, absent such exemption.’’ The 62147; 65 FR 45817; 65 FR 77066; 67 FR Washington, DC 20590–0001. procedures for requesting an exemption 71610; 69 FR 64810; 72 FR 184; 66 FR • Hand Delivery or Courier: West (including renewals) are set out in 49 53826; 66 FR 66966; 69 FR 17267; 71 FR Building Ground Floor, Room W12–140, CFR part 381. 43556; 67 FR 46016; 67 FR 57267; 69 FR 51346; 71 FR 50970; 69 FR 53493; 69 FR 1200 New Jersey Avenue, SE., Exemption Decision Washington, DC, between 9 a.m. and 5 62742; 71 FR 32183; 71 FR 41310). Each p.m., Monday through Friday, except This notice addresses 12 individuals of these 12 applicants has requested Federal holidays. who have requested a renewal of their renewal of the exemption and has • Fax: 1–202–493–2251. exemption in accordance with FMCSA submitted evidence showing that the Each submission must include the procedures. FMCSA has evaluated these vision in the better eye continues to Agency name and the docket number for 12 applications for renewal on their meet the standard specified at 49 CFR this Notice. Note that DOT posts all merits and decided to extend each 391.41(b)(10) and that the vision comments received without change to exemption for a renewable two-year impairment is stable. In addition, a http://www.regulations.gov, including period. They are: Robert W. Brown, review of each record of safety while any personal information included in a David D. Bungori, Jr., Benny J. Burke, driving with the respective vision comment. Please see the Privacy Act David R. Cox, Gary T. Hicks, Robert T. deficiencies over the past two years heading below. Hill, John C. McLaughlin, Kenneth D. indicates each applicant continues to Docket: For access to the docket to Sisk, David W. Skillman, Rick N. Ulrich, meet the vision exemption standards. read background documents or Stephen D. Vice, and Larry D. These factors provide an adequate basis comments, go to http:// Wedekind. for predicting each driver’s ability to www.regulations.gov at any time or These exemptions are extended continue to drive safely in interstate Room W12–140 on the ground level of subject to the following conditions: (1) commerce. Therefore, FMCSA the West Building, 1200 New Jersey That each individual have a physical concludes that extending the exemption Avenue, SE., Washington, DC, between examination every year (a) by an for each renewal applicant for a period 9 a.m. and 5 p.m., Monday through ophthalmologist or optometrist who of two years is likely to achieve a level Friday, except Federal holidays. The attests that the vision in the better eye of safety equal to that existing without FDMS is available 24 hours each day, continues to meet the standard in 49 the exemption. 365 days each year. If you want CFR 391.41(b)(10), and (b) by a medical Request for Comments acknowledgment that we received your examiner who attests that the individual comments, please include a self- is otherwise physically qualified under FMCSA will review comments addressed, stamped envelope or 49 CFR 391.41; (2) that each individual received at any time concerning a postcard or print the acknowledgement provide a copy of the ophthalmologist’s particular driver’s safety record and page that appears after submitting or optometrist’s report to the medical determine if the continuation of the comments on-line. examiner at the time of the annual exemption is consistent with the Privacy Act: Anyone may search the medical examination; and (3) that each requirements at 49 U.S.C. 31136(e) and electronic form of all comments individual provide a copy of the annual 31315. However, FMCSA requests that received into any of our dockets by the medical certification to the employer for interested parties with specific data name of the individual submitting the retention in the driver’s qualification concerning the safety records of these

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drivers submit comments by January 12, Terminal Railroad (AUAR), a common vehicles and would not enhance the 2009. carrier freight railroad. As explained in safety of the vehicles. Specifically, FMCSA believes that the the Notice, CMTA is constructing a 32- CMTA explains that the door threshold requirements for a renewal of an mile rail system (27 miles shared with of the vehicles is 23.5 inches above the exemption under 49 U.S.C. 31136(e) and AUAR) linking the City of Leander, top of the rail, and such configuration 31315 can be satisfied by initially Texas, with downtown Austin, TX. renders still steps unnecessary. granting the renewal and then CMTA plans to utilize temporal CMTA also indicates that side and requesting and evaluating, if needed, separation of freight and passenger end handholds (required by Section subsequent comments submitted by operations on the shared trackage and a 20302) are not necessary for safety on its interested parties. As indicated above, light rail style, non-FRA compliant DMU vehicles and in fact, such the Agency previously published Diesel-Multiple Unit (DMU) vehicle in appliances might present a safety hazard notices of final disposition announcing order to offer a ‘‘ ‘one seat ride’ in the street-running environment of its its decision to exempt these 12 operating on both the CMTA mainline planned CRS system. Specifically, individuals from the vision requirement and in city streets with tight curvature.’’ noting that handholds are typically in 49 CFR 391.41(b)(10). The final As detailed in the Notice, CMTA intended for use by crew members decision to grant an exemption to each seeks a waiver of compliance from performing yard and service duties, of these individuals was based on the certain regulatory provisions of 49 CFR CMTA notes that its operations will not merits of each case and only after parts 219 (Control of Alcohol and Drug involve any such activities from careful consideration of the comments Use), 221 (Rear end marking device), positions outside and adjacent to the received to its notices of applications. 223 (Safety glazing standards), 225 vehicle or near vehicle doors. Instead, The notices of applications stated in (Railroad accident/incident reporting), CMTA indicates that yard moves will be detail the qualifications, experience, 229 (Railroad locomotive safety controlled from the control stand within and medical condition of each applicant standards), 231 (Railroad safety the vehicle by the on-board operator and for an exemption from the vision appliance standards), 238 (Passenger switches will be hand thrown. requirements. That information is equipment safety standards), 239 Therefore, CMTA notes that there is no available by consulting the above cited (Passenger train emergency need for personnel to mount or Federal Register publications. preparedness) and 240 (Qualification dismount the vehicles using external Interested parties or organizations and certification of locomotive appliances of any kind. Further, CMTA possessing information that would engineers). expresses reservation about installing otherwise show that any, or all of these Noting that certain provisions in 49 external handholds because of the drivers, are not currently achieving the CFR part 231 pertaining to safety street-running characteristics of its statutory level of safety should appliances are statutorily required, and planned CRS service noting that such therefore not subject to FRA’s waiver immediately notify FMCSA. The appliances would give pedestrians ‘‘the authority, CMTA also requests that FRA Agency will evaluate any adverse opportunity to grab onto something on exercise its authority under 49 U.S.C. evidence submitted and, if safety is the outside of the vehicle with the 20306 to exempt CMTA from certain being compromised or if continuation of intention to hitch an unlawful,’’ and provisions of Chapter 203, Title 49, of the exemption would not be consistent unsafe, ride. the United States Code because the In accordance with 49 U.S.C. 20306, with the goals and objectives of 49 ‘‘CMTA DMU vehicles will be equipped FRA may exempt CMTA from the above U.S.C. 31136(e) and 31315, FMCSA will with their own array of safety devices statutory requirements based on take immediate steps to revoke the resulting in equivalent safety.’’ evidence received and findings exemption of a driver. Specifically, CMTA requests that for developed at a hearing demonstrating Issued on: December 5, 2008. purposes of its planned CRS system, that the statutory requirements Larry W. Minor, FRA exempt it from the requirements of ‘‘preclude the development or Associate Administrator for Policy and 49 U.S.C. 20302 mandating that railroad implementation of more efficient Program Development. vehicles be equipped with (1) railroad transportation equipment or [FR Doc. E8–29416 Filed 12–11–08; 8:45 am] Handbrakes, (2) sill steps; and (3) side other transportation innovations under BILLING CODE 4910–EX–P and end handholds. existing law.’’ Accordingly, in order to CMTA indicates that the DMU receive evidence and develop findings vehicles it plans to utilize for its CRS to determine whether FRA should DEPARTMENT OF TRANSPORTATION service are equipped with automatic invoke its discretionary authority under spring applied parking brakes, as 49 U.S.C. 20306 in this instance, a Federal Railroad Administration opposed to conventional hand brakes as public hearing is scheduled to begin at required by Section 20302. CMTA 9 a.m. on Thursday, January 8, 2009, at [Docket Number FRA–2006–25040] further indicates that the parking brakes the Hilton Garden Inn located at 815 Capital Metropolitan Transportation will be controlled by the one-person 14th Street, NW., in Washington, DC. Authority; Notice of Public Hearing crew operating the vehicle from control Interested parties are invited to present stands within the vehicle and that the oral statements at the hearing. The On August 8, 2006, the Federal parking brakes are capable of holding a hearing will be informal and will be Railroad Administration (FRA) vehicle on a six percent grade at an 84.5 conducted by a representative published a notice (Notice) in the ton load. Accordingly, CMTA states the designated by FRA in accordance with Federal Register announcing Capital parking brake of its DMU vehicles FRA’s Rules of Practice (49 CFR 211.25). Metropolitan Authority’s (CMTA) serves the same purpose of a The hearing will be a non-adversarial request for a waiver of compliance from conventional hand brake, but in a proceeding; therefore, there will be no certain provisions of Title 49 of the manner that provides an equivalent or cross examination of persons presenting Code of Federal Regulations (CFR) for superior level of safety. statements. FRA representative will the operation of a new planned CMTA further indicates that sill steps make an opening statement outlining Commuter Rail Service (CRS) that will (required by Section 20302) are not the scope of the hearing. After all initial share trackage with the Austin Area necessary for safety on the DMU statements have been completed, those

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persons wishing to make a brief rebuttal (newspaper publication), and 49 CFR within 15 days after the EA becomes will be given the opportunity to do so 1152.50(d)(1) (notice to governmental available to the public. in the same order in which initial agencies) have been met. Environmental, historic preservation, statements were made. Additional As a condition to this exemption, any public use, or trail use/rail banking procedures, as necessary for the conduct employee adversely affected by the conditions will be imposed, where of the hearing, will be announced at the abandonment shall be protected under appropriate, in a subsequent decision. hearing. Oregon Short Line R. Co.— Pursuant to the provisions of 49 CFR The petitioners should be present at Abandonment—Goshen, 360 I.C.C. 91 1152.29(e)(2), UP shall file a notice of the hearing and prepared to present (1979). To address whether this consummation with the Board to signify evidence that any requirements of condition adequately protects affected that it has exercised the authority Chapter 203, title 49, United States employees, a petition for partial granted and fully abandoned the line. If Code, for which exemption is sought to revocation under 49 U.S.C. 10502(d) consummation has not been effected by ‘‘preclude the development or must be filed. UP’s filing of a notice of consummation implementation of more efficient Provided no formal expression of by December 12, 2009, and there are no railroad transportation equipment or intent to file an offer of financial legal or regulatory barriers to other transportation innovations under assistance (OFA) has been received, this consummation, the authority to existing law.’’ exemption will be effective on January abandon will automatically expire. Issued in Washington, DC on December 8, 13, 2009, unless stayed pending Board decisions and notices are 2008. reconsideration. Petitions to stay that do available on our Web site at http:// Grady C. Cothen, Jr., not involve environmental issues,2 www.stb.dot.gov. Deputy Associate Administrator for Safety formal expressions of intent to file an Decided: December 5, 2008. 3 Standards and Program Development. OFA under 49 CFR 1152.27(c)(2), and By the Board, David M. Konschnik, [FR Doc. E8–29419 Filed 12–11–08; 8:45 am] trail use/rail banking requests under 49 Director, Office of Proceedings. BILLING CODE 4910–06–P CFR 1152.29 must be filed by December Jeffrey Herzig, 22, 2008. Petitions to reopen or requests Clearance Clerk. for public use conditions under 49 CFR [FR Doc. E8–29430 Filed 12–11–08; 8:45 am] DEPARTMENT OF TRANSPORTATION 1152.28 must be filed by January 2, 2009, with: Surface Transportation BILLING CODE 4915–01–P Surface Transportation Board Board, 395 E Street, SW., Washington, [STB Docket No. AB–33 (Sub-No. 267X)] DC 20423–0001. DEPARTMENT OF TRANSPORTATION A copy of any petition filed with the Union Pacific Railroad Company— Board should be sent to UP’s Surface Transportation Board Abandonment Exemption—in representative: Mack H. Shumate, Jr., Comanche County, OK Senior General Attorney, 101 North [STB Finance Docket No. 35204] Wacker Drive, Room 1920, Chicago, IL Watco Companies, Inc.—Continuance Union Pacific Railroad Company (UP) 60606. has filed a notice of exemption under 49 in Control Exemption—Alabama If the verified notice contains false or Warrior Railway, L.L.C. CFR 1152 Subpart F—Exempt misleading information, the exemption Abandonments to abandon, and is void ab initio. Watco Companies, Inc. (Watco), a discontinue its lease operation over a UP has filed a combined noncarrier, has filed a verified notice of 3.85-mile line of railroad known as the environmental and historic report exemption to continue in control of Lawton Industrial Lead, extending from addressing the effects, if any, of the Alabama Warrior Railway, L.L.C. milepost 50.75, near Fort Sill, to abandonment on the environment and (AWR), upon AWR’s becoming a Class milepost 54.60, south of Lawton, in historic resources. SEA will issue an III rail carrier.1 Comanche County, OK. The line environmental assessment (EA) by This transaction is related to a traverses United States Postal Service December 19, 2008. Interested persons concurrently filed verified notice of Zip Code 73503.1 may obtain a copy of the EA by writing exemption in STB Finance Docket No. UP has certified that: (1) No local to SEA (Room 1100, Surface 35203, Alabama Warrior Railway, traffic has moved over the line for at Transportation Board, Washington, DC L.L.C.—Operation Exemption—Sloss least 2 years; (2) there is no overhead 20423–0001) or by calling SEA, at (202) Industries Corporation and Jefferson traffic on the line; (3) no formal 245–0305. [Assistance for the hearing Warrior Railroad Company, Inc. In that complaint filed by a user of rail service impaired is available through the proceeding, AWR seeks an exemption on the line (or by a state or local Federal Information Relay Service under 49 CFR 1150.31 to operate government entity acting on behalf of (FIRS) at 1–800–877–8339.] Comments approximately 24.575 miles of rail lines such user) regarding cessation of service on environmental and historic owned by Sloss Industries Corporation over the line either is pending with the preservation matters must be filed and Jefferson Warrior Railroad Surface Transportation Board or with Company, Inc. (JWR) in Birmingham, any U.S. District Court or has been 2 AL. Also, JWR will assign its operating decided in favor of complainant within The Board will grant a stay if an informed decision on environmental issues (whether raised rights to AWR over approximately the 2-year period; and (4) the by a party or by the Board’s Section of 1,532.1 feet of rail line owned by BNSF requirements at 49 CFR 1105.7 Environmental Analysis (SEA) in its independent Railway Company in Birmingham. (environmental reports), 49 CFR 1105.8 investigation) cannot be made before the The parties intend to consummate the (historic reports), 49 CFR 1105.11 exemption’s effective date. See Exemption of Out- of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any transaction on or shortly after December (transmittal letter), 49 CFR 1105.12 request for a stay should be filed as soon as possible 26, 2008, the effective date of the so that the Board may take appropriate action before exemption. 1 The line is owned by the State of Oklahoma the exemption’s effective date. which holds no residual common carrier obligation. 3 Each OFA must be accompanied by the filing The line does contain federally granted right-of- fee, which currently is set at $1,500. See 49 CFR 1 Watco owns 100% of the issued and outstanding way. 1002.2(f)(25). stock of AWR.

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Watco currently indirectly controls 19 filed no later than December 19, 2008 (at U.S. carrier subsidiaries, following the Class III rail carriers: South Kansas and least 7 days before the exemption acquisition of control of DM&E and Oklahoma Railroad Company, Palouse becomes effective). IC&E by Soo Holding (and, indirectly, River & Coulee City Railroad, Inc., An original and 10 copies of all by CPR). The elimination of IC&E and Timber Rock Railroad, Inc., Stillwater pleadings, referring to STB Finance Cedar American as separate corporate Central Railroad, Inc., Eastern Idaho Docket No. 35204, must be filed with entities will streamline DM&E’s Railroad, Inc., Kansas & Oklahoma the Surface Transportation Board, 395 E corporate structure, reduce Railroad, Inc., Pennsylvania Street, SW., Washington, DC 20423– administration expenses, and improve 0001. In addition, one copy of each Southwestern Railroad, Inc., Great the overall efficiency of DM&E. Northwest Railroad, Inc., Kaw River pleading must be served on Karl Morell, Railroad, Inc., Mission Mountain 1455 F Street, NW., Suite 225, This is a transaction within a Railroad, Inc., Mississippi Southern Washington, DC 20005. corporate family of the type specifically Railroad, Inc., Yellowstone Valley Board decisions and notices are exempted from prior review and Railroad, Inc., Louisiana Southern available on our Web site at http:// approval under 49 CFR 1180.2(d)(3). Railroad, Inc., Arkansas Southern www.stb.dot.gov. The parties state that the transaction Railroad, Inc., Alabama Southern Decided: December 5, 2008. will not result in adverse changes in Railroad, Inc., Vicksburg Southern By the Board, David M. Konschnik, service levels, significant operational Railroad, Inc., Austin Western Railroad, Director, Office of Proceedings. changes, or any change in the Inc., Baton Rouge Southern Railroad, Jeffrey Herzig, competitive status quo with carriers 2 LLC, and Pacific Sun Railroad, L.L.C. Clearance Clerk. outside the corporate family. Watco states that the purpose of the [FR Doc. E8–29314 Filed 12–11–08; 8:45 am] proposed transaction is to reduce Under 49 U.S.C. 10502(g), the Board overhead expenses, and coordinate BILLING CODE 4915–01–P may not use its exemption authority to billing, maintenance, mechanical and relieve a rail carrier of its statutory obligation to protect the interests of its personnel policies and practices of its DEPARTMENT OF TRANSPORTATION rail carrier subsidiaries, and thereby employees. As a condition to the use of improve the overall efficiency of rail Surface Transportation Board this exemption, any employees service provided by the railroads in its adversely affected by this transaction corporate family. [STB Finance Docket No. 35202] will be protected by the conditions set Watco represents that: (1) The rail Canadian Pacific Railway Company, forth in New York Dock Ry.—Control— lines to be operated by AWR do not Soo Line Holding Company, and Brooklyn Eastern Dist., 360 I.C.C. 60 connect with any other railroads in the Dakota, Minnesota & Eastern Railroad (1979). Watco corporate family; (2) the Corporation, et al.—Corporate Family If the notice contains false or transaction is not part of a series of Transaction—Iowa, Chicago & Eastern misleading information, the exemption anticipated transactions that would Railroad Corporation is void ab initio. Petitions to revoke the connect the rail lines with any other railroad in the Watco corporate family; Canadian Pacific Railway Company exemption under 49 U.S.C. 10502(d) and (3) the transaction does not involve (CPR), Soo Line Holding Company (Soo may be filed at any time. The filing of a Class I rail carrier. Therefore, the Holding), Dakota, Minnesota & Eastern a petition to revoke will not transaction is exempt from the prior Railroad Corporation (DM&E), and Iowa, automatically stay the transaction. approval requirements of 49 U.S.C. Chicago & Eastern Railroad Corporation Petitions for stay must be filed no later 11323. See 49 CFR 1180.2(d)(2). (IC&E) have jointly filed a verified than December 19, 2008 (at least 7 days Under 49 U.S.C. 10502(g), the Board notice of exemption under 49 CFR before the exemption becomes may not use its exemption authority to 1180.2(d)(3) for an intra-corporate effective). relieve a rail carrier of its statutory family transaction. DM&E currently has An original and 10 copies of all obligation to protect the interests of its one wholly owned direct subsidiary, pleadings, referring to STB Finance employees. Section 11326(c), however, Cedar American Rail Holdings, Inc. Docket No. 35202, must be filed with does not provide for labor protection for (Cedar American), a noncarrier. Cedar the Surface Transportation Board, 395 E American has two wholly owned transactions under sections 11324 and Street, NW., Washington, DC 20423– subsidiaries: IC&E and Wyoming Dakota 11325 that involve only Class III rail 0001. In addition, one copy of each carriers. Accordingly, the Board may not Railroad Properties, Inc. (Wyoming pleading must be served on Terence M. impose labor protective conditions here, Dakota), a noncarrier. The transaction Hynes, Sidley Austin LLP, 1501 K because all of the carriers involved are involves the merger of Cedar American Class III carriers. and IC&E with and into DM&E, with Street, NW., Washington, DC 20005. If the verified notice contains false or DM&E being the surviving corporation. Board decisions and notices are misleading information, the exemption Upon completion of the transaction, available on our Web site at http:// is void ab initio. Petitions to revoke the Cedar American and IC&E would cease www.stb.dot.gov. to exist, with Wyoming Dakota exemption under 49 U.S.C. 10502(d) Decided: December 9, 2008. may be filed at any time. The filing of becoming a direct subsidiary of DM&E. a petition to revoke will not DM&E will continue to be a direct By the Board, David M. Konschnik, automatically stay the effectiveness of subsidiary of Soo Holding and a ‘‘sister’’ Director, Office of Proceedings. the exemption. Stay petitions must be corporation of Soo Line Railroad Jeffrey Herzig, Company. Clearance Clerk. 2 Watco notes that it has recently filed a notice The transaction is scheduled to be [FR Doc. E8–29451 Filed 12–11–08; 8:45 am] to control another new carrier, but indicates that the consummated as soon as practicable BILLING CODE 4915–01–P above transaction is expected to be consummated after December 26, 2008, the effective first. See Watco Companies—Continuance in Control Exemption—Grand Elk Railroad, LLC, STB date of the exemption. Finance Docket No. 35188 (STB served Nov. 17, The purpose of the transaction is to 2008). simplify the corporate structure of CPR’s

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DEPARTMENT OF TRANSPORTATION and shredding). The term ‘‘solid waste’’ Land Management, Alaska State Office; is defined in section 1004 of the Solid U.S. Army Corps of Engineers, Alaska Surface Transportation Board Waste Disposal Act, 42 U.S.C. 6903. District; U.S. Department of Defense, [STB Finance Docket No. 35203] If the verified notice contains false or Alaskan Command; U.S. Air Force misleading information, the exemption 354th Fighter Wing, Eielson Air Force Alabama Warrior Railway, L.L.C.— is void ab initio. Petitions to revoke the Base; Federal Transit Administration; Operation Exemption—Sloss exemption under 49 U.S.C. 10502(d) Federal Railroad Administration; U.S. Industries Corporation and Jefferson may be filed at any time. The filing of Coast Guard, Seventeenth District; and Warrior Railroad Company, Inc. a petition to revoke will not Alaska Department of Natural automatically stay the effectiveness of Resources. The purpose of this Notice of Alabama Warrior Railway, L.L.C. the exemption. Petitions for stay must Availability is to notify individuals and (AWR), a noncarrier, has filed a verified be filed no later than December 19, 2008 agencies interested in or affected by the notice of exemption under 49 CFR (at least 7 days before the exemption proposed action of the availability of the 1150.31 to operate approximately becomes effective). Draft EIS for review and comment, and 24.575 miles of rail lines owned by An original and 10 copies of all of public meetings on the Draft EIS. Sloss Industries Corporation (Sloss) and pleadings, referring to STB Finance Implementation of the proposed Jefferson Warrior Railroad Company, Docket No. 35203, must be filed with project would extend ARRC’s existing 1 Inc. (JWR) between: (1) the entrance to the Surface Transportation Board, 395 E freight and passenger rail service to the the Sloss properties at 35th Avenue Street, SW., Washington, DC 20423– region south of the community of North North and extending in a northeasterly 0001. In addition, a copy of each Pole, and would include construction of direction through the Sloss properties to pleading must be served on Karl Morell, related structures, such as a passenger a point near Summit Street; and (2) the 1455 F Street, NW., Suite 225, facility, communications towers, and south leg of the wye located near the Washington, DC 20005. sidings. intersection of Erwin Dairy Road and Board decisions and notices are The Draft EIS analyses the potential 37th Street North and the Lehigh Yard available on our Web site at http:// environmental impacts of the proposed located approximately .75-miles to the www.stb.dot.gov. action and alternatives, including the south of the wye.2 Also, JWR will assign no-action alternative. The Draft EIS its operating rights to AWR over Decided: December 5, 2008. addresses environmental issues and approximately 1,532.1 feet of rail line By the Board, David M. Konschnik, concerns identified during the scoping owned by BNSF Railway Company Director, Office of Proceedings. process. It also contains SEA’s (BNSF), between BNSF STA. 58 +50.90 Jeffrey Herzig, preliminary recommendations for and BNSF STA. 73+83 on the Dimmick Clearance Clerk. environmental mitigation measures, City Main Track. All of the rail lines are [FR Doc. E8–29313 Filed 12–11–08; 8:45 am] ARRC’s voluntary mitigation measures, located in Birmingham, AL. BILLING CODE 4915–01–P and encourages mutually acceptable This transaction is related to a negotiated agreements to mitigate concurrently filed verified notice of adverse environmental impacts should exemption in STB Finance Docket No. DEPARTMENT OF TRANSPORTATION the Board approve the proposed. 35204, Watco Companies, Inc.— SEA and the cooperating agencies are Continuance in Control Exemption— Surface Transportation Board also holding four public meetings on the Alabama Warrior Railway, L.L.C. In that [STB Finance Docket No. 34658] Draft EIS during which interested proceeding, Watco Companies, Inc., has parties can make oral comments in an filed a verified notice of exemption to Alaska Railroad Corporation—Petition orderly fashion before meeting continue in control of AWR, upon AWR for Exemption—To Construct and participants and/or submit written becoming a Class III rail carrier. Operate a Rail Line Between North comments. A court reporter will be The transaction is expected to be Pole, Alaska and Delta Junction, AK present to record the oral comments. consummated on or shortly after The dates, locations and times of the December 26, 2008 (the effective date of AGENCY: Surface Transportation Board, public meetings are shown below: the exemption). DOT. January 12, 2009, 5–8 p.m., Pike’s AWR certifies that its projected ACTION: Notice of Availability of Draft Waterfront Lodge, 1850 Hoselton Road, annual revenues as a result of the Environmental Impact Statement, Fairbanks, AK. transaction will not result in AWR’s Notice of Public Meetings. January 13, 2009, 5–8 p.m., City becoming a Class II or Class I rail carrier Council Chambers, 125 Snowman Lane, and further certifies that its projected SUMMARY: On July 6, 2007, Alaska North Pole, AK. annual revenue will not exceed $5 Railroad Corporation (ARRC) filed a January 14, 2009, 5–8 p.m., Salcha million. petition with the Surface Transportation Senior Center, 6062 Johnson Road, Pursuant to the Consolidated Board (Board) pursuant to 49 United Salcha, AK. Appropriations Act, 2008, Pub. L. No. States Code (U.S.C.) 10502 for the January 15, 2009, 5–8 p.m., Jarvis 110–161, § 193, 121 Stat. 1844 (2007), authority to construct and operate West Building, Milepost 1420.5 Alaska nothing in this decision authorizes the approximately 80 miles of new rail line Highway, Delta Junction, AK. following activities at any solid waste from North Pole, Alaska, to Delta The Alaska Department of Natural rail transfer facility: collecting, storing Junction, Alaska. Because construction Resources will be attending the or transferring solid waste outside of its and operation of this proposed action meetings to hear public comments on original shipping container; or has the potential to result in significant the proposed project pursuant to their separating or processing solid waste environmental impacts, the Board’s obligations under Alaska statute (including baling, crushing, compacting Section of Environmental Analysis 42.40.460. (SEA) and eight cooperating agencies SEA and the cooperating agencies will 1 Sloss and JWR are affiliated companies. prepared a Draft Environmental Impact prepare a Final Environmental Impact 2 AWR states that there are no mileposts Statement (Draft EIS). The cooperating Statement (Final EIS) that considers associated with the rail lines. agencies include the U.S. Bureau of comments on the Draft EIS. The Board

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will then issue a final decision, based By the Board, Victoria Rutson, Chief, Title: Request for Transfer of Property on all public and agency comments in Section of Environmental Analysis. Seized/Forfeited by a Treasury Agency. the public record for this proceeding, Kulunie L. Cannon, Form: TD 92–22.46. that will address the transportation Clearance Clerk. Description: The TIGTA’s Office of merits of the proposed project and the [FR Doc. E8–29448 Filed 12–11–08; 8:45 am] Audit’s mission is to provide entire environmental record including BILLING CODE 4915–01–P independent oversight of IRS activities. the Draft EIS and Final EIS. That final Through its audit programs TIGTA decision will approve the proposed promotes efficiency and effectiveness in project, deny it, or approve it with the administration of internal revenue mitigation conditions, including DEPARTMENT OF THE TREASURY laws, including the prevention and environmental conditions. detection of fraud, waste, and abuse Submission for OMB Review; affecting tax administration. To ADDRESSES: Comments should be sent in Comment Request accomplish this, TIGTA Office of Audit writing to: David Navecky, STB Finance at times finds it necessary to contact a December 8, 2008. Docket No. 34658, Surface limited number of taxpayers (including Transportation Board, 395 E Street, SW., The Department of Treasury is businesses) for various reasons, Washington, DC 20423. Comments on planning to submit the following public including to survey or contact taxpayers the Draft EIS may also be filed information collection requirement(s) to on issues such as customer service, for electronically on the Board’s Web site, OMB for review and clearance under the example, to determine the quality of http://www.stb.dot.gov, by clicking on Paperwork Reduction Act of 1995, service at IRS walk-in sites called TACs, the ‘‘E-FILING’’ link. Then select Public Law 104–13. Copies of the telephones, during examinations (IRS submission(s) may be obtained by ‘‘Environmental Comments,’’ which audits of taxpayer tax returns), to survey calling the Treasury Bureau Clearance does not require a Login Account. or contact taxpayers to determine why Officer listed. Comments regarding this certain eligible taxpayers did or did not DATES: Written comments on the Draft information collection should be take certain actions, and to survey or EIS, which was served December 12, addressed to the OMB reviewer listed contact taxpayers to determine the 2008, must be postmarked by February and to the Treasury Department accuracy of the IRS records. 2, 2009. E-filed comments must be Clearance Officer, Department of the Respondents: Individuals or received by February 2, 2009. Treasury, Room 11020, 1750 households. Pennsylvania Avenue, NW., Estimated Total Reporting Burden: FOR FURTHER INFORMATION CONTACT: Washington, DC 20220. David Navecky by mail at the address 2,500 hours. DATES: Written comments should be above, by telephone at 202–245–0294 Clearance Officer: Kimberly Hyatt, received on or before February 10, 2009 [FIRS for the hearing impaired (1–800– (202) 622–5913, Department of the to be assured of consideration. 877–8339)], or by e-mail at Treasury, 1500 Pennsylvania Avenue, [email protected]. Further Treasury Inspector General for Tax NW., Washington, DC 20220. information about the project is also Administration (TIGTA) Robert Dahl, available by calling SEA’s toll-free OMB Number: 1505–XXXX. Treasury PRA Clearance Officer. number at 1–800–359–5142. Type of Review: New Information [FR Doc. E8–29422 Filed 12–11–08; 8:45 am] Decided: December 12, 2008. Collection Activity. BILLING CODE 4810–25–P

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Part II

Department of the Interior Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 780, 784, et al. Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams; Final Rule

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DEPARTMENT OF THE INTERIOR A. Legislative History of SMCRA IX. Procedural Matters and Required B. Initial Regulatory Program Determinations C. Permanent Regulatory Program (1979 Office of Surface Mining Reclamation I. What does SMCRA say about surface and Enforcement Rules) D. Permanent Regulatory Program coal mining operations in or near Revisions (1983 Rules) streams? 30 CFR Parts 780, 784, 816, and 817 E. How has the 1983 stream buffer zone SMCRA contains three references to [Docket ID No.: OSM–2007–0007] rule been applied and interpreted? F. What rulemaking actions have we streams, two references to watercourses, RIN 1029–AC04 proposed to clarify the 1983 rule? and several provisions that indirectly IV. What is the relationship between SMCRA refer to activities in or near streams. Excess Spoil, Coal Mine Waste, and and the Clean Water Act with respect to Section 507(b)(10) 1 requires that Buffers for Perennial and Intermittent this rule? permit applications include ‘‘the name Streams V. How did we obtain public input? of the watershed and location of the VI. What general comments did we receive surface stream or tributary into which AGENCY: Office of Surface Mining on the proposed rule? surface and pit drainage will be Reclamation and Enforcement, Interior. A. We Should Discourage the Mining and discharged.’’ However, this provision ACTION: Final rule. Use of Coal as a Power Source Because of the Role That the Combustion of Coal has no relevance to mining-related SUMMARY: We, the Office of Surface Plays in Climate Change activities in or near streams or to the Mining Reclamation and Enforcement B. We Should Withdraw the Proposed Rule existing or proposed buffer zone rules. (OSM), are amending our regulations and Enforce the 1983 Stream Buffer Section 515(b)(18) requires that Zone, the Meaning of Which Is Clear as surface coal mining and reclamation concerning stream buffer zones, stream- Written channel diversions, siltation structures, operations ‘‘refrain from the C. We Should Not Adopt Any Rule That construction of roads or other access impoundments, excess spoil, and coal Facilitates Mountaintop Mining mine waste. Among other things, this Operations or the Filling of Streams ways up a stream bed or drainage rule requires that surface coal mining D. We Should Ensure the Protection of channel or in such proximity to such operations be designed to minimize the Headwater Streams by Requiring channel so as to seriously alter the creation of excess spoil and the adverse Maintenance of an Undisturbed Buffer normal flow of water.’’ environmental impacts of fills Between Mining Activities and Streams Section 516(c) requires the regulatory E. We Have Not Accorded Sufficient authority to suspend underground coal constructed to dispose of excess spoil Importance to the Environmental and coal mine waste. We have revised mining under permanent streams if an Protection Purposes of SMCRA imminent danger to inhabitants exists. the stream buffer zone rule to more F. EPA Cannot Legally Concur With the closely reflect the underlying provisions Revised Stream Buffer Zone Rules However, this provision is not relevant of the Surface Mining Control and Because They Violate the Clean Water to a discussion of the stream buffer zone Reclamation Act of 1977 (SMCRA), to Act rules because, in response to litigation adopt related permit application G. The Applicability of the Final Rules concerning the 1983 version of 30 CFR requirements, to require that Should Be Limited to Steep-Slope Areas 817.57, we stipulated that ‘‘this and Mountaintop Removal Operations regulation is directed only to disturbance of perennial and H. The Stream Buffer Zone Rule Is intermittent streams and their buffer disturbance of surface lands by surface Unnecessary and Should Be Removed in activities associated with underground zones generally be avoided unless it is Its Entirety not reasonably possible to do so, to VII. Why did we decide against applying the mining.’’ In re: Permanent Surface identify exceptions to the requirement stream buffer zone rule to all waters of Mining Regulation Litigation II-Round to maintain an undisturbed buffer zone the United States (WOTUS)? II, 21 ERC 1725, 1741, footnote 21 for perennial and intermittent streams, VIII. Section-by-section analysis: How are we (D.D.C. 1984). and to clarify the relationship between revising our rules? Section 515(b)(22)(D) provides that A. Sections 780.14 and 784.23: Operation SMCRA and the Clean Water Act. sites selected for the disposal of excess Plan: Maps and Plans spoil must ‘‘not contain springs, natural DATES: This rule is effective January 12, B. Sections 780.25 and 784.16: water courses or wet weather seeps 2009. The incorporation by reference of Reclamation Plan: Siltation Structures, unless lateral drains are constructed the publication listed in the rule is Impoundments, Refuse Piles, and Coal from the wet areas to the main approved by the Director of the Federal Mine Waste Impounding Structures underdrains in such a manner that Register as of January 12, 2009. C. Sections 780.28 and 784.28: Activities in or Adjacent to Perennial or Intermittent filtration of the water into the spoil pile FOR FURTHER INFORMATION CONTACT: Streams will be prevented.’’ In adopting this Dennis G. Rice, Office of Surface Mining D. Section 780.35: Disposal of Excess Spoil provision, Congress could have chosen Reclamation and Enforcement, U.S. (Surface Mines) to exclude perennial and intermittent Department of the Interior, 1951 E. Section 784.19: Disposal of Excess Spoil streams (or other waters) from the scope Constitution Avenue, NW., Washington, (Underground Mines) of ‘‘natural water courses,’’ but it did F. Sections 816.11 and 817.11: Signs and DC 20240. Telephone: 202–208–2829. not do so. In addition, the fact that this You can find additional information Markers G. Sections 816.43 and 817.43: Diversions provision of the Act authorizes disposal concerning OSM, this rule, and related of excess spoil in areas containing documents on OSM’s home page on the H. Sections 816.46 and 817.46: Siltation Structures natural watercourses, springs, and seeps Internet at http://www.osmre.gov. I. Sections 816.57 and 817.57: Activities in further suggests that Congress did not SUPPLEMENTARY INFORMATION: or Adjacent to Perennial or Intermittent intend to prohibit placement of excess Table of Contents Streams spoil in perennial or intermittent J. Sections 816.71 and 817.71: General I. What does SMCRA say about surface coal Requirements for Disposal of Excess 1 30 U.S.C. 1257(b)(10). SMCRA, Pub. L. 95–87, mining operations in or near streams? Spoil is codified at 30 U.S.C. 1201–1328. Thus, for II. What provisions of SMCRA form the basis K. What Does the Phrase ‘‘to the extent example, SMCRA section 102 is codified at 30 for our stream buffer zone rules? possible’’ mean in these rules? U.S.C. 1202, SMCRA section 515 is codified at 30 III. What is the history of our stream buffer L. What does the phrase ‘‘best technology U.S.C. 1265, and SMCRA section 516 is codified at zone rules? currently available’’ mean in these rules? 30 U.S.C. 1266.

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streams. The term ‘‘natural liquid or solid waste material from coal indication that Congress intended to watercourses’’ includes all types of mines are constructed or have been prohibit construction of those structures streams—perennial, intermittent, and constructed so as to safeguard the health and in perennial or intermittent streams. ephemeral. Springs and seeps are welfare of downstream populations, H.R. 2 Finally, sections 515(b)(11) and gives the Army Corps of Engineers a role in 516(b)(4) of the Act govern the groundwater discharges. To the extent determining the standards for construction, that those discharges provide modification and abandonment of these construction of coal refuse piles that are intermittent or continuous flow in a impoundments. not used as dams or embankments. channel, they are included within the * * * * * While those paragraphs do not mention scope of our definitions in 30 CFR 701.5 Thus, the corps’ experience and expertise constructing refuse piles in of ‘‘intermittent stream’’ and ‘‘perennial in the area of design, construction, watercourses, neither do they prohibit stream,’’ respectively. The definition of maintenance, et cetera, which were utilized such construction. Because of the ‘‘intermittent stream,’’ which is based for carrying out the congressionally similarity of those piles to excess spoil upon technical literature, includes any authorized surveys of mine waste fills, the regulations implementing ‘‘stream or reach of a stream that is embankments in West Virginia following the sections 515(b)(11) and 516(b)(4) below the local water table for at least disastrous failure of the mine waste incorporate language similar to that of impoundments on Buffalo Creek, is to be section 515(b)(22)(D) for the some part of the year, and obtains its applied in order to prevent similar accidents flow from both surface runoff and in the future. construction of excess spoil disposal ground water discharge.’’ Furthermore, facilities. Specifically, the regulations at in litigation under the Clean Water Act, H. Rep. No. 95–218; at 125 (April 22, 30 CFR 816.83(a)(1) and 817.83(a)(1) the U.S. Court of Appeals for the Fourth 1977) (emphasis added). allow the construction of non- Circuit cited section 515(b)(22) of Section 515(f) provides that— impounding coal refuse piles on areas SMCRA as supporting the statement in The Secretary, with the written containing springs, natural or man-made its decision that ‘‘it is beyond dispute concurrence of the Chief of Engineers, shall watercourses, or wet-weather seeps if that SMCRA recognized the possibility establish within one hundred and thirty-five the design includes diversions and of placing excess spoil material in days from the date of enactment, standards underdrains. Not all areas containing and criteria regulating the design, location, springs, watercourses, or wet-weather waters of the United States even though construction, operation, maintenance, those materials do not have a beneficial enlargement, modification, removal, and seeps are perennial or intermittent purpose.’’ See Kentuckians for the abandonment of new and existing coal mine streams, but some are, which means that Commonwealth, Inc. v. Rivenburgh, 317 waste piles referred to in section 515(b)(13) refuse piles may be constructed in F.3d 425, 443 (4th Cir. 2003). and section 516(b)(5). streams. Section 515(c)(4)(D) provides that, in Sections 515(b)(13) and 516(b)(5) II. What provisions of SMCRA form the approving a permit application for a concern ‘‘all existing and new coal mine basis for our stream buffer zone rules? mountaintop removal operation, the waste piles consisting of mine wastes, regulatory authority must require that Paragraphs (b)(10)(B)(i) and (24) of tailings, coal processing wastes, or other section 515 of SMCRA served as the ‘‘no damage will be done to natural liquid and solid wastes and used either watercourses.’’ The regulations basis for all three previous versions temporarily or permanently as dams or (1977, 1979, and 1983) of the stream implementing this provision clarify that embankments.’’ (Emphasis added.) the prohibition applies only to natural buffer zone rule with respect to surface Sections 515(f), 515(b)(13), and mining activities. Those sections also watercourses ‘‘below the lowest coal 516(b)(5) do not specifically mention seam mined.’’ See 30 CFR 824.11(a)(9). serve as the basis for the revised rule at streams or watercourses. 30 CFR 816.57 that we are adopting Furthermore, section 515(c)(4)(E) of the However, the reference to dams and today. Section 515(b)(10)(B)(i) requires Act specifies that ‘‘all excess spoil embankments, the requirement for the that surface coal mining operations be material not retained on the concurrence of the U.S. Army Corps of conducted so as to prevent the mountaintop shall be placed in Engineers (for its expertise in dam contribution of additional suspended accordance with the provisions of construction and flood control), and the solids to streamflow or runoff outside subsection (b)(22) of this section.’’ By legislative history documenting that the the permit area to the extent possible including this proviso, Congress 1972 Buffalo Creek flood was the using the best technology currently recognized that not all excess spoil driving force behind adoption of those available. Section 515(b)(24) requires generated by mountaintop removal SMCRA provisions demonstrate that that surface coal mining and operations could be retained on benches Congress was aware that coal mine reclamation operations be conducted to or placed within the mined-out area. waste impoundments had been minimize disturbances to and adverse And by cross-referencing section constructed in perennial and impacts on fish, wildlife, and related 515(b)(22), Congress authorized intermittent streams in the past and environmental values ‘‘to the extent placement of excess spoil from would be constructed there in the possible using the best technology mountaintop removal operations in future. Furthermore, the fact that all natural watercourses, provided all currently available.’’ three paragraphs specifically apply to In context, section 515(b)(10)(B)(i) requirements of section 515(b)(22) are both new and existing structures (rather met. In the steep-slope terrain of central provides that the performance standards than to just existing structures) implies adopted under SMCRA must require Appalachia, excess spoil typically can that new structures would and could be most feasibly be placed in valley fills. that surface coal mining and built in streams under SMCRA. As reclamation operations— In addition, the legislative history of mentioned in the legislative history, section 515(f) of SMCRA indicates that Congress’ intent was to prevent a (10) minimize the disturbances to the Congress anticipated that coal mine recurrence of the Buffalo Creek prevailing hydrologic balance at the mine- site and in associated offsite areas and to the waste impoundments would be impoundment failure and to ensure that constructed in perennial and quality and quantity of water in surface and all coal mine waste impoundments ground water systems both during and after intermittent streams: either are or have been constructed in a surface coal mining operations and during In order to assure that mine waste manner that protects the safety of reclamation by— impoundments used for the disposal of downstream residents. There is no (A) * * *

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(B)(i) conducting surface coal mining program under SMCRA, we adopted the The preamble to the 1979 rules operations so as to prevent, to the extent concept of a 100-foot buffer zone around explains that the purpose of the revised possible using the best technology currently intermittent and perennial streams as a rules was to implement paragraphs available, additional contributions of means ‘‘to protect stream channels from (b)(10) and (b)(24) of section 515 of the suspended solids to streamflow, or runoff abnormal erosion’’ from nearby upslope Act. 44 FR 15176, March 13, 1979. It outside the permit area, but in no event shall contributions be in excess of requirements set mining activities. See 30 CFR states that ‘‘[b]uffer zones are required by applicable State or Federal law. 715.17(d)(3) and 42 FR 62652 to protect streams from the adverse (December 13, 1977). The regulation effects of sedimentation and from gross * * * * * reads as follows: disturbance of stream channels,’’ but Section 515(b)(24) requires that No land within 100 feet of an intermittent that ‘‘if operations can be conducted surface coal mining and reclamation or perennial stream shall be disturbed by within 100 feet of a stream in an operations be conducted in a manner surface coal mining and reclamation environmentally acceptable manner, that— operations unless the regulatory authority they may be approved.’’ Id. In addition, To the extent possible using the best specifically authorizes surface coal mining it states that ‘‘[t]he 100-foot limit is technology currently available, minimize[s] and reclamation operations through such a based on typical distances that should stream. The area not to be disturbed shall be disturbances and adverse impacts of the be maintained to protect stream designated a buffer zone and marked as operation on fish, wildlife, and related specified in § 715.12. channels from sedimentation,’’ but that, environmental values, and achieve[s] while the 100-foot standard provides a enhancement of such resources where The rule does not specify the simple rule for enforcement purposes, practicable. conditions under which the regulatory ‘‘site-specific variation should be made The common thread in both authority may authorize operations available when the regulatory authority provisions is the requirement for use of within the buffer zone. has an objective basis for either the best technology currently available C. Permanent Regulatory Program (1979 increasing or decreasing the width of to achieve the requirements of those Rules) the buffer zone.’’ Id. provisions to the extent possible. The original version of our permanent D. Permanent Regulatory Program Paragraphs (b)(9)(B) and (11) of program regulations, as published on Revisions (1983 Rules) section 516 of SMCRA form the basis for March 13, 1979, included more In 1983, we revised the stream buffer the stream buffer zone rule at 30 CFR extensive stream buffer zone rules at 30 817.57, which applies to surface zone rules to delete the requirement that CFR 816.57 (for surface mining the original stream channel be restored, activities associated with underground operations) and 817.57 (for underground mines. Those provisions of section 516 to replace the biological community mining operations). Specifically, the criterion for determining which non- are substantively equivalent to 1979 version of section 816.57 provided paragraphs (b)(10)(B)(i) and (24) of perennial streams must be protected that no land within 100 feet of a under the rule with a requirement for section 515 of SMCRA, respectively, perennial stream or a stream with a except that section 516(b)(9)(B) also protection of all intermittent streams, biological community shall be disturbed and to add a requirement for a finding includes the provisions found in section by surface mining activities, except in 515(b)(10)(E) regarding the avoidance of that the proposed mining activities will accordance with §§ 816.43–816.44 [the not cause or contribute to a violation of channel deepening or enlargement. In stream diversion regulations], unless the the remainder of this preamble, we often applicable state or federal water quality regulatory authority specifically standards and will not adversely affect refer only to the section 515 paragraphs, authorizes surface mining activities with the understanding that, unless the environmental resources of the closer to or through such a stream upon stream. See 48 FR 30312, June 30, 1983. otherwise stated or implied by context, finding that the original stream channel references to those paragraphs should be In 1983, we also adopted revised will be restored; and during and after performance standards for coal read as including their section 516 the mining, the water quantity and counterparts. preparation plants not located within quality from the stream section within the permit area of a mine. We decided III. What is the history of our stream 100 feet of the surface mining activities not to apply the stream buffer zone rule buffer zone rules? shall not be adversely affected. to those preparation plants. See 30 CFR Paragraph (c) of the 1979 rule provided A. Legislative History of SMCRA 827.12 and the preamble to those rules that a biological community existed if at 48 FR 20399, May 5, 1983. SMCRA does not establish or require the stream at any time contained an The preamble to the 1983 stream a buffer zone for streams or other assemblage of two or more species of buffer zone rules reiterates the general waters. In 1972, the U.S. House of arthropods or molluscan animals that rationale for adoption of a stream buffer Representatives passed a bill (H.R. 6482) were adapted to flowing water for all or zone rule that we specified in the that included a flat prohibition on part of their life cycle, dependent upon preamble to the 1979 rules. It identifies mining within 100 feet of any ‘‘body of a flowing water habitat, reproducing or the reason for replacing the biological water, stream, pond, or lake to which could reasonably be expected to community threshold with the the public enjoys use and access, or reproduce in the water body where they intermittent stream threshold as a other private property.’’ This are found, and longer than 2 millimeters matter of improving the ease of prohibition appeared in the counterpart at some stage of the part of their life administration and eliminating the to what is now section 522(e) of the Act. cycle spent in the flowing water habitat. possibility of applying the rule to However, the bill never became law and The counterpart regulation for ephemeral streams and other relatively the provision did not appear in underground mining at 30 CFR 817.57 insignificant water bodies: subsequent versions of SMCRA was identical except that it substituted the term ‘‘surface operations and The biological-community standard was legislation. confusing to apply since there are areas with facilities’’ for ‘‘surface mining B. Initial Regulatory Program ephemeral surface waters of little biological activities’’ and clearly indicated that the or hydrologic significance which, at some As part of the regulations restrictions were limited to ‘‘surface time of the year, contain a biological implementing the initial regulatory areas.’’ community as defined by previous

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§ 816.57(c). Thus, much confusion arose finding that surface mining activities E. How has the 1983 stream buffer zone when operators attempted to apply the will not cause or contribute to the rule been applied and interpreted? previous rule’s standards to springs, seeps, violation of applicable State or Federal ponding areas, and ephemeral streams. While Historically, we and the State some small biological communities which water quality standards, and will not regulatory authorities have applied the contribute to the overall production of adversely affect the water quantity and 1983 stream buffer zone rule in a downstream ecosystems will be excluded quality or other environmental manner that allowed the placement of from special buffer-zone protection under resources of the stream; and if there will excess spoil fills, refuse piles, slurry final § 816.57(a), the purposes of Section be a temporary or permanent stream- impoundments, and sedimentation 515(b)(24) of the Act will best be achieved by providing a buffer zone for those streams channel diversion, it will comply with ponds in intermittent and perennial with more significant environmental- § 816.43. streams. However, as discussed at resource values. The 1983 version of the stream buffer length in the preamble to the January 7, 2004 proposed rule (69 FR 1038–1042), 48 FR 30313, June 30 1983. The zone rule for underground mining at 30 preamble further states that ‘‘[i]t is CFR 817.57 is identical except for which we never finalized, there has been considerable controversy over the impossible to conduct surface mining substitution of the term ‘‘underground proper interpretation of both the Clean without disturbing a number of minor mining activities’’ for ‘‘surface mining Water Act and our 1983 rules as they natural streams, including some which activities.’’ contain biota’’ and that ‘‘surface coal apply to the placement of fill material The National Wildlife Federation mining operations will be permissible as in or near perennial and intermittent challenged this regulation as being long as environmental protection will be streams. As evidenced by past litigation inconsistent with sections 515(b)(10) afforded to those streams with more and the comments that we received on significant environmental-resource and (24) of the Act, primarily because it the proposed rule that we published on value.’’ Id. It further provides that the deleted the biological community August 24, 2007, some interpretations of revised rules ‘‘also recognize that threshold for stream protection. our 1983 rule are at odds with the intermittent and perennial streams However, the court rejected that underlying provisions of SMCRA. generally have environmental-resource challenge, finding without elaboration We first placed our interpretation of values worthy of protection under that the ‘‘regulation is not in conflict the 1983 stream buffer zone rules in Section 515(b)(24) of the Act.’’ Id. at with either section 515(b)(10) or writing in a document entitled 30312. In addition, the preamble notes 515(b)(24).’’ In re: Permanent Surface ‘‘Summary Report—West Virginia that ‘‘[a]lthough final § 816.57 is Mining Regulation Litigation II—Round Permit Review—Vandalia Resources, intended to protect significant biological II, 21 ERC 1725, 1741–1742 (D.D.C. Inc. Permit No. S–2007–98.’’ According values in streams, the primary objective 1984). to our annual oversight reports for West of the rule is to provide protection for Virginia for 1999 and 2000, that The court also noted that the document stated that the stream buffer the hydrologic balance and related Secretary had properly justified the rule environmental values of perennial and zone rule does not apply to the footprint change on the grounds that the previous of a fill placed in a perennial or intermittent streams.’’ Id. at 30313. It rule was confusing and difficult to further states that ‘‘[t]he 100-foot limit is intermittent stream as part of a surface apply without protecting areas of little used to protect streams from coal mining operation. On June 4, 1999, biological significance. Unfortunately, sedimentation and help preserve in West Virginia Highlands Conservancy riparian vegetation and aquatic the new criterion (intermittent streams) v. Babbitt, Civ. No. 1:99CV01423 habitats.’’ Id. at 30314. has proven as difficult to apply as the (D.D.C.), the plaintiffs challenged the We also stated that we removed the biological community standard that it validity of that document, alleging that requirement to restore the original replaced. The definition of ‘‘intermittent it constituted rulemaking in violation of stream channel in deference to the stream’’ in 30 CFR 701.5 has two parts, the Administrative Procedure Act. In an stream-channel diversion requirements separated by an ‘‘or.’’ The first part order filed September 23, 1999, the of 30 CFR 816.43 and 817.43 and to defines all streams with a drainage area court approved an unopposed motion to clarify that there does not have to be a of one square mile as intermittent. This dismiss the case as moot. stream diversion for mining to occur part of the definition is the aspect that In a lawsuit filed in the U.S. District inside the buffer zone. Id. was litigated and upheld for its clarity Court for the Southern District of West Finally, the preamble states that we of application. However, the second part Virginia in July 1998, plaintiffs asserted added the finding concerning ‘‘other of the definition includes all streams that the stream buffer zone rule allows environmental resources of the stream’’ and stream segments that are below the mining activities through or within the to clarify ‘‘that regulatory authorities local water table for part of the year and buffer zone for a perennial or will be allowed to consider factors other that derive at least part of their flow intermittent stream only if the activities than water quantity and quality in from groundwater discharge. This part are minor incursions. They argued that making buffer-zone determinations’’ and of the definition has been more difficult the rule did not allow substantial ‘‘to provide a more accurate reflection of to apply in practice. In fact, some States segments of the stream to be buried the objectives of Sections 515(b)(10) and use biological criteria for making that underneath excess spoil fills or other 515(b)(24) of the Act.’’ Id. at 30316. determination. mining-related structures. On October Revised 30 CFR 816.57(a) (1983) 20, 1999, the district court ruled in favor provided that ‘‘[n]o land within 100 feet Industry also challenged 30 CFR of the plaintiffs on this point, holding of a perennial stream or an intermittent 817.57(a) to the extent that it included that the stream buffer zone rule applies stream shall be disturbed by surface all underground mining activities. to all segments of a stream, including mining activities, unless the regulatory However, industry withdrew its those segments within the footprint of authority specifically authorizes surface challenge when the Secretary stipulated an excess spoil fill, not just to the mining activities closer to, or through, that the rule would apply only to stream as a whole. The court also stated such a stream.’’ The rule further surface lands and surface activities that the construction of fills in perennial provided that the regulatory authority associated with underground mining. or intermittent streams is inconsistent may authorize such activities only upon See footnote 21, id. at 1741. with the language of 30 CFR

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816.57(a)(1), which provides that the the Clean Water Act to provide a clear intent governmental entities, landowners, and regulatory authority may authorize to limit the term ‘‘fill material’’ to material citizens all can have a common surface mining activities within a deposited for a beneficial primary purpose. understanding of what the stream buffer stream buffer zone only after finding Id. at 443. zone rule does and does not require. that the proposed activities ‘‘will not The preamble to the proposed rule The final rule also includes additional adversely affect the water quantity and that we published on January 7, 2004, permitting requirements intended to quality or other environmental but which we never adopted in final ensure that operations are designed to resources of the stream.’’ See Bragg v. form, contains additional discussion of minimize the creation of excess spoil Robertson, 72 F. Supp. 2d 642, 660–663 litigation and related matters arising and to require consideration of (S.D. W. Va., 1999). from the 1983 stream buffer zone rules. alternatives to the disposal of excess The U.S. Court of Appeals for the See especially Part I.B.1. at 69 FR 1038– spoil and coal mine waste in perennial Fourth Circuit ultimately reversed the 1040. or intermittent streams or their buffer district court on other grounds (lack of zones to minimize the adverse impacts jurisdiction under the Eleventh F. What rulemaking actions have we on fish, wildlife, and related Amendment to the U.S. Constitution) proposed to clarify the 1983 rule? environmental values to the extent without reaching the merits of the On January 7, 2004 (69 FR 1036), we possible using the best technology district court’s holding on the proposed to revise our stream buffer currently available. applicability of the stream buffer zone zone rules to retain the prohibition on The revised stream buffer zone rule that we are adopting today attempts to rule. Bragg v. West Virginia Coal disturbance of land within 100 feet of a minimize disputes and Association, 248 F.3d 275, 296 (4th Cir. perennial or intermittent stream, but misunderstandings associated with 2001), cert. denied, 534 U.S. 1113 alter the findings that the regulatory application of the 1983 rule. The revised (2002). authority must make before granting a rule distinguishes between those In a different case, the same district variance to this requirement. The situations in which maintenance of an court stated that SMCRA and the stream revised rule would have replaced the undisturbed buffer between mining and buffer zone rule do not authorize Clean Water Act-oriented findings in the reclamation activities and a perennial or disposal of overburden in streams: 1983 rule with a SMCRA-based intermittent stream constitutes the best ‘‘SMCRA contains no provision requirement that the regulatory technology currently available to authorizing disposal of overburden authority find in writing that the waste in streams, a conclusion further implement the underlying statutory activities will, to the extent possible, provisions (sections 515(b)(10)(B)(i) and supported by the buffer zone rule.’’ use the best technology currently Kentuckians for the Commonwealth, (24) and 516(b)(9)(B) and (11) of available to prevent additional SMCRA) and those situations in which Inc. v. Rivenburgh, 204 F. Supp. 2d 927, contributions of suspended solids to the 942 (S.D. W. Va. 2002). maintenance of a buffer is neither section of stream within 100 feet feasible nor appropriate. The U.S. Court of Appeals for the downstream of the mining activities and Fourth Circuit subsequently rejected the outside the area affected by mining IV. What is the relationship between district court’s interpretation, stating activities; and minimize disturbances SMCRA and the Clean Water Act with that ‘‘SMCRA does not prohibit the and adverse impacts on fish, wildlife, respect to this rule? discharge of surface coal mining excess and other related environmental values In this final rule, we are adding spoil in waters of the United States.’’ of the stream. The proposed rule also paragraph (f) of sections 780.28 and Kentuckians for the Commonwealth, would have required that operations be 784.28 and paragraph (d) of sections Inc. v. Rivenburgh, 317 F.3d 425, 442 designed to minimize the creation of 816.57 and 817.57 to clarify the (4th Cir. 2003). The court further stated excess spoil. relationship between SMCRA and the that ‘‘it is beyond dispute that SMCRA Numerous commenters asked us to Clean Water Act with respect to recognizes the possibility of placing consider other alternatives to the activities conducted in or near perennial excess spoil material in waters of the proposed rule. Some commenters also and intermittent streams. We are United States even though those asked that we prepare an environmental adopting these paragraphs to address materials do not have a beneficial impact statement (EIS) on the proposed concerns arising from the fact that this purpose.’’ Id. at 443. action. On June 16, 2005 (70 FR 35112), final rule removes language that The court explained the basis for its we announced our intent to prepare an previously appeared in sections statements as follows: EIS on the proposed rule changes. We 816.57(a) and 817.57(a) that specifically Section 515(b)(22)(D) of SMCRA authorizes also stated that we intended to consider prohibited the conduct of mining mine operators to place excess spoil material additional alternatives and to publish a activities within 100 feet of a perennial in ‘‘springs, natural water courses or wet new proposed rule to coincide with the or intermittent stream unless the weather seeps’’ so long as ‘‘lateral drains are release of a draft EIS. regulatory authority found that those constructed from the wet areas to the main underdrains in such a manner that filtration On August 24, 2007 (72 FR 48890), we activities would not cause or contribute of the water into the spoil pile will be published a new, extensively revised to the violation of applicable State or prevented.’’ 30 U.S.C. § 1265(b)(22)(D). In proposed rule and a notice of Federal water quality standards and addition, § 515(b)(24) requires surface mine availability of the draft EIS. That would not adversely affect the water operators to ‘‘minimize disturbances and proposed rule replaced the one we quantity and quality or other adverse impacts of the operation on fish, published on January 7, 2004. The environmental resources of the stream. wildlife, and related environmental values, August 24, 2007, proposed rule forms We are removing that requirement and achieve enhancement of such resources the basis for the final rule that we are because its language more closely where practicable,’’ implying the placement adopting today. This final rule is resembles the Clean Water Act than the of fill in the waters of the United States. 30 U.S.C. § 1265(b)(24). It is apparent that intended to clarify the scope and underlying provisions of SMCRA. See SMCRA anticipates the possibility that meaning of the stream buffer zone rule, Parts II, VIII.C., and VIII.I. of this excess spoil material could and would be consistent with underlying statutory preamble for further discussion of placed in waters of the United States, and authority, and to ensure that regulatory sections 780.28, 784.28, 816.57, and this fact cannot be juxtaposed with § 404 of authorities, mine operators, other 817.57 and the provisions of SMCRA

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that provide the basis for the stream SMCRA and the Clean Water Act The Clean Water Act establishes a buffer zone rule. provide for separate regulatory programs comprehensive program designed to None of the revisions to the stream with different purposes and very ‘‘restore and maintain the chemical, buffer zone rule or other elements of different permitting requirements and physical, and biological integrity of the this final rule affect a mine operator’s procedures. In addition, SMCRA and Nation’s waters.’’ 33 U.S.C. 1251(a). To responsibility to comply with effluent the Clean Water Act differ considerably achieve this goal, it prohibits the limitations or other requirements of the with respect to jurisdiction. For discharge of pollutants into navigable Clean Water Act. The requirements of example, unlike SMCRA, the Clean waters except as in compliance with the Clean Water Act have independent Water Act does not directly regulate specified provisions of the Clean Water force and effect regardless of the terms groundwater. The Clean Water Act Act, including a provision that allows of the SMCRA permit. The independent focuses primarily on regulating for discharges authorized by a National effect of the Clean Water Act is discharges of pollutants into waters of Pollutant Discharge Elimination System recognized in section 702(a) of SMCRA, the United States, whereas SMCRA (NPDES) permit. 33 U.S.C. 1311(a) and which provides that— regulates a broad universe of 1342(a). At 33 U.S.C. 1362(7), the Clean Water Act defines ‘‘navigable waters’’ as Nothing in this Act shall be construed as environmental and other impacts of superseding, amending, modifying, or surface coal mining and reclamation ‘‘waters of the United States,’’ a term repealing the * * * [t]he Federal Water operations. As stated in the legislative which the Corps and EPA define at 33 Pollution Control Act [Clean Water Act] history of SMCRA: CFR 328.3 and 40 CFR 232.2, respectively. The proper scope of that [citations omitted], the State laws enacted Statutory authority to regulate the adverse pursuant thereto, or other Federal laws environmental effects of surface and definition has been extensively litigated relating to the preservation of water quality. underground coal mining under the Federal and EPA and the Corps have issued 30 U.S.C. 1292(a). Water Pollution Control Act [Clean Water supplemental guidance to reflect the In interpreting this statutory provision Act], as amended, is limited to the treatment outcome of that litigation. or removal of any pollutants into the waters The Clean Water Act authorizes the with respect to effluent limitations of the United States. * * * The Federal discharge of pollutants into waters of adopted as part of our initial regulatory Water Pollution Control Act, as amended, the United States under two different program, the U.S. Court of Appeals for can deal only with a part of the problem. The permit programs. Section 404 authorizes the D.C. Circuit held that ‘‘where the FWPCA does not contain the statutory discharges of dredged or fill material, Secretary’s regulation of surface coal authority for the establishment of standards while section 402 applies to all other mining’s hydrologic impact overlaps and regulations requiring comprehensive pollutants. 33 U.S.C. 1344, 1342. EPA’s, the Act expressly directs that the preplanning and designing for appropriate Section 404 is primarily administered Federal Water Pollution Control Act and mine operating and reclamation procedures to ensure protection of public health and by the Corps, with the exception of its regulatory framework are to control safety and to prevent the variety of other those States and Indian tribes that have so as to afford consistent effluent damages to the land, the soil, the wildlife, assumed the program pursuant to standards nationwide.’’ In re Surface and the aesthetic and recreational values that section 404(g). In both cases, EPA Mining Regulation Litigation, 627 F.2d can result from coal mining. The statute also provides input and has oversight lacks the regulatory authority to deal with the 1346, 1367 (D.C. Cir. 1980). authority and responsibilities. Section In today’s final rule, we are adding discharge of pollutants from abandoned surface and underground coal mines. 402 (NPDES) permits are issued by EPA paragraph (f)(2) of sections 780.28 and or states and Indian tribes that EPA has 784.28 and paragraph (d) of sections H. Rep. No. 94–1445 at 90–91 (1976), authorized to administer the NPDES 816.57 and 817.57(d) to reiterate and emphasis in original. program under section 402(b). further clarify this relationship between Section 508(a)(9) of SMCRA requires Section 401 of the Clean Water Act SMCRA and the Clean Water Act. The that each permit application include requires that each applicant for a federal new rules emphasize that issuance of a ‘‘the steps to be taken to comply with license or permit submit a certification SMCRA permit is not a substitute for the applicable air and water quality laws from the state in which the discharge reviews, authorizations, and and regulations and any applicable originates. The certification must state certifications required under the Clean health and safety standards.’’ Our that the discharge will comply with Water Act and does not authorize regulations at 30 CFR 780.18(b)(9) and federal and state water quality initiation of surface coal mining 784.13(b)(9) similarly require that each requirements. 33 U.S.C. 1341(a)(1). ‘‘No operations for which the applicant has permit application include: license or permit shall be granted until not obtained all necessary A description of steps to be taken to the certification required by this section authorizations, certifications, and comply with the requirements of the Clean has been obtained or has been waived’’ permits under the Clean Water Act. Air Act (42 U.S.C. 7401 et seq.), and the and ‘‘[n]o license or permit shall be Consistent with the approach Clean Water Act (33 U.S.C. 1251 et seq.), and granted if certification has been denied described above, our existing other applicable air and water quality laws by the State.’’ Id. Section 401(d) further regulations at 30 CFR 816.42 and 817.42 and regulations and health and safety provides that the state certifications provide that discharges of water from standards. ‘‘shall become a condition on any areas disturbed by surface or In keeping with section 508(a)(9) of Federal license or permit subject to the underground mining activities shall be SMCRA, today’s rule also includes new provisions of this section.’’ Id. at made in compliance with all applicable provisions in paragraph (f)(1) of sections 1341(d). State and Federal water quality laws 780.28 and 784.28 reiterating that every Section 402 of the Clean Water Act and regulations and with the effluent permit application must identify the governs discharges of pollutants other limitations for coal mining promulgated authorizations that the applicant than dredged or fill material. 33 U.S.C. by the U.S. Environmental Protection anticipates will be needed under 1342. Permits issued under this section Agency set forth in 40 CFR part 434. sections 401, 402, and 404 of the Clean are known as NPDES permits. They Nothing in the final rule that we are Water Act, 33 U.S.C. 1341, 1342, and typically contain technology-based adopting today would alter or affect the 1344, and describe the steps that the numerical standards called effluent requirements of 30 CFR 816.42 or permit applicant has taken or will take limitations that restrict the amount of 817.42. to procure those authorizations. specified pollutants that may be

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discharged. 33 U.S.C. 1311, 1362(11). on human health or welfare, aquatic life, cumulative adverse effects on the EPA has developed industry-wide and aquatic ecosystems. 40 CFR environment. technology-based wastewater effluent 230.10(c)(1) through (c)(3). To comply As the Corps states in the preamble to limitations for surface coal mining and with this requirement, the Corps must the most recent version of its general reclamation operations. Those effluent make a written determination of the permits— limitations are codified in 40 CFR part effects of a proposed activity ‘‘on the When we issue the NWPs, we fully comply 434. NPDES permits also must include physical, chemical, and biological with the requirements of the 404(b)(1) any more stringent limitations necessary components of the aquatic Guidelines at 40 CFR 230.7, which govern to meet state water quality standards. 33 environment.’’ 40 CFR 230.11. See also the issuance of general permits under section U.S.C. 1311(b)(1)(C), 1342(a). EPA may 33 CFR 320.4(b)(4) and 325.2(a)(6) for 404. For the section 404 NWPs, each decision authorize states to issue NPDES permits, requirements for individual permits. document contains a 404(b)(1) Guidelines but EPA retains authority to enforce the The 404(b)(1) Guidelines also provide analysis. Section 230.7(b) of the 404(b)(1) that ‘‘no discharge of dredged or fill Guidelines requires only a ‘‘written requirements of the Clean Water Act. evaluation of the potential individual and Section 404 of the Clean Water Act material shall be permitted unless cumulative impacts of the categories of authorizes the Secretary of the Army, appropriate and practicable steps have activities to be regulated under the general through the Corps, to regulate been taken which will minimize permit.’’ Since the required evaluation must discharges of dredged and fill material potential adverse impacts of the be completed before the NWP is issued, the through a permitting process. 33 U.S.C. discharge on the aquatic ecosystem.’’ 40 analysis is predictive in nature. The 1344. On May 9, 2002 (67 FR 31129– CFR 230.10(d). One way the Corps can estimates of potential individual and 31143), the Corps and EPA adopted a reduce the potential adverse impacts cumulative impacts, as well as the projected revised definition of ‘‘fill material’’ in associated with filling activity is to compensatory mitigation that will be required, are based on the best available data 33 CFR 323.2(e) and 40 CFR 232.2, require compensatory mitigation. See 33 from the Corps district offices, based on past respectively, that includes ‘‘overburden CFR 325.4(a)(3) and 320.4(r) for use of NWPs. from mining or other excavation individual permits and General activities.’’ In the same rulemaking, the Condition 20 (72 FR 11193, March 12, 72 FR 11094, March 12, 2007. Corps and EPA also adopted a revised 2007) for nationwide permits under 33 In the preamble to NWP 21, the Corps definition of ‘‘discharge of fill material’’ CFR part 330. This differs substantially states that ‘‘the analyses and in 33 CFR 323.2(f) and 40 CFR 232.2, from SMCRA, which provides no environmental protection performance respectively. The revised definition authority to require compensatory standards required by SMCRA, in provides that ‘‘[t]he term generally mitigation. conjunction with the pre-construction includes, without limitation, the * * * Section 404(e) of the Clean Water Act notification requirement, are generally placement of overburden, slurry, or authorizes the Corps to ‘‘issue general sufficient to ensure that NWP 21 tailings or similar mining-related permits on a State, regional, or activities result in minimal individual materials.’’ Therefore, any mining nationwide basis for any category of and cumulative adverse impacts on the overburden or coal mine waste used to activities involving discharges of aquatic environment.’’ 72 FR 11114. The replace any waters of the United States, dredged or fill material if the Secretary most critical element in the Corps’ or portion thereof, with dry land or to [of the Army] determines that the determination that NWP 21 meets the change the bottom elevation of any activities in such category are similar in Clean Water Act requirements for waters of the United States, or portion nature, will cause only minimal adverse general permits is the fact that NWP 21 thereof, is classified as fill material for environmental effects when performed requires a preconstruction notification purposes of the Clean Water Act. separately, and will have only minimal from the applicant, followed by a review To implement section 404, the Corps cumulative adverse effects on the of the project by the Corps, and then a may issue either individual permits environment,’’ provided the general written determination from the Corps under 33 CFR parts 320 through 328 or permit is based upon the guidelines before the activities covered by NWP 21 general permits under 33 CFR part 330. developed under section 404(b)(1) of the may be initiated. As the Corps states in See 33 U.S.C. 1344(a) and (e). Both Clean Water Act. the preamble— individual and general permits must The Corps has exercised its authority We believe our process for NWP 21 ensures comply with guidelines issued by EPA under section 404(e) to issue general that activities authorized by the NWP result under section 404(b)(1), 33 U.S.C. nationwide permits (NWPs) for surface in no more than minimal adverse impacts to 1344(b)(1). Those guidelines, which are coal mining operations under SMCRA the aquatic environment because each project codified at 40 CFR part 230, are referred (NWP 21), coal remining activities is reviewed on a case-by-case basis and the to as the ‘‘404(b)(1) Guidelines.’’ The under SMCRA (NWP 49), and district engineer either makes a minimal 404(b)(1) Guidelines generally prohibit underground coal mining activities impacts determination on the project or asserts discretionary authority and requires the permitting of projects where there under SMCRA (NWP 50). Those permits an individual permit. Also, because of the ‘‘is a practicable alternative to the apply only if the activities are case-by-case review and the requirement for proposed discharge which would have authorized under a SMCRA permit or an written verification, we do not agree that it less adverse impact on the aquatic application for the activities is being is necessary to prohibit discharges of dredged ecosystem, so long as the alternative processed as part of an integrated permit or fill material into perennial streams. does not have other significant adverse processing procedure. See 72 FR 11092, * * * * * environmental consequences.’’ 40 CFR 11184, and 11191, March 12, 2007. In The pre-construction notification 230.10(a). Under 40 CFR 230.10(a)(2), issuing NWPs 21, 49, and 50, the Corps requirements of all NWPs allows for a case- ‘‘[a]n alternative is practicable if it is has determined that the activities by-case review of activities that have the available and capable of being done covered by those permits are in potential to result in more than minimal after taking into consideration cost, compliance with the 404(b)(1) adverse effects to the aquatic environment. If Guidelines. That is, the Corps has the adverse effects on the aquatic existing technology, and logistics in environment are more than minimal, then the light of overall project purposes.’’ determined that these activities will district engineer can either add special The guidelines specify that the Corps cause only minimal adverse conditions to the NWP authorization to must ensure that the proposed fill will environmental effects when performed ensure that the activity results in no more not cause significantly adverse effects separately and will have only minimal than minimal adverse environmental effects

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or exercise discretionary authority to require district engineer will determine whether the V. How did we obtain public input? an individual permit. activity authorized by the NWP will result in more than minimal individual or cumulative We published the proposed rule on 72 FR 11114. which this final rule is based on August Furthermore, at 72 FR 11117, the adverse environmental effects or may be contrary to the public interest. * * * If the 24, 2007, (72 FR 48890–48926). In Corps states that— district engineer determines that the activity response to requests from the public, we The Corps does not assume that other state complies with the terms and conditions of held public hearings on the proposed or Federal agencies conduct a review that is the NWP and that the adverse effects on the rule in Charleston, West Virginia; comparable to the section 404(b)(1) aquatic environment are minimal, after Hazard, Kentucky; Knoxville, Guidelines. Although analysis of offsite considering mitigation, the district engineer Tennessee; and Washington, alternatives is not required in conjunction will notify the permittee and include any Pennsylvania on October 24, 2007. We with general permits, each proposed project conditions the district engineer deems is evaluated for onsite avoidance and also held public meetings in Big Stone necessary. The district engineer must Gap, Virginia on October 24, 2007, and minimization, in accordance with general approve any compensatory mitigation in Alton, Illinois on November 1, 2007. condition 20, and is not authorized under the proposal before the permittee commences NWP if the adverse impacts to waters of the work. * * * In addition, we extended the comment United States are more than minimal. If the district engineer determines that the period, which was originally scheduled At 72 FR 11094, the Corps explains adverse effects of the proposed work are to close October 23, 2007, until that— more than minimal, then the district engineer November 23, 2007. See 72 FR 57504, will notify the applicant either: (1) That the October 10, 2007. NWPs 21, 49, and 50 are a special case, in project does not qualify for authorization Approximately 750 persons attended that they authorize activities for which under the NWP and instruct the applicant on review of environmental impacts, including the public hearings and meetings. Of the the procedures to seek authorization under impacts to aquatic resources, is separately attendees, 212 provided testimony, with required under other Federal authorities (e.g., an individual permit; (2) that the project is 21 supporting the proposed rule and the Surface Mining Control and Reclamation Act authorized under the NWP subject to the remainder opposed. In addition to the (SMCRA) permits for coal mining activities). applicant’s submission of a mitigation plan testimony offered at the hearings and that would reduce the adverse effects on the The Corps believes it would be unnecessarily meetings, we received more than 43,000 duplicative to separately require the same aquatic environment to the minimal level; or (3) that the project is authorized under the written or electronic comments on the substantive analyses through an individual proposed rule. In general, most permit application as are already required NWP with specific modifications or under SMCRA. However, through the pre- conditions. Where the district engineer commenters opposed the proposed rule, construction notification review process, the determines that mitigation is required to primarily because they viewed the rule district engineer will consider the analyses ensure no more than minimal adverse effects as facilitating mountaintop mining and prepared for the SMCRA permit and exercise occur to the aquatic environment, the activity construction of excess spoil fills in discretionary authority to require an will be authorized within the 45-day PCN streams. Commenters representing the individual permit in cases where the district period. The authorization will include the coal industry generally supported the engineer determines, after considering necessary conceptual or specific mitigation proposed rule, except for the proposed avoidance and reclamation activities or a requirement that the applicant submit a undertaken pursuant to SMCRA, that the mitigation plan that would reduce the revisions to (1) apply the buffer zone residual adverse effects are not minimal. The adverse effects on the aquatic environment to requirement to waters of the United project sponsor is required to obtain written the minimal level. When mitigation is States rather than to perennial and verification prior to commencing work. required, no work in waters of the United intermittent streams and (2) require an Thus, the Corps uses SMCRA permit States may occur until the district engineer analysis of alternatives for disposal of has approved a specific mitigation plan. application data and analyses as a excess spoil and coal mine waste. Comments from state regulatory starting point to determine whether a 72 FR 11195–1196, March 12, 2007. proposed operation qualifies for authorities and other governmental The preamble also notes that, before authorization under NWP 21, but it does entities were mixed in terms of support beginning any activities covered by the not rely upon that information for or opposition to the rule. preconstruction notification, the person In developing the final rule, we exclusively. Nor does the Corps submitting the notification must obtain considered all comments that were presume that issuance of a SMCRA a state water quality certification under germane to the proposed rule. In the permit is evidence of compliance with section 401 of the Clean Water Act in remainder of this preamble, we Clean Water Act requirements. See 72 those states that do not issue an summarize the comments received and FR 11115, which states that— unconditional certification for the discuss our disposition of those The Corps understands coal mining is nationwide permits. comments. covered by many environmental regulations; however the Corps has determined that As the preceding discussion VI. What general comments did we SMCRA, in its current form, does not remove demonstrates, we believe that receive on the proposed rule? the need, either legally or substantively, for maintaining the distinction between the independent authorization under Section 404 SMCRA and Clean Water Act regulatory A. We Should Discourage the Mining of the Clean Water Act. Consequently, this programs is both administratively and and Use of Coal as a Power Source NWP does not duplicate the SMCRA permit legally appropriate. We do not believe Because of the Role That the process. the requirements of this final rule are Combustion of Coal Plays in Climate The principles in the preceding duplicative of requirements under the Change discussion concerning NWP 21 also Clean Water Act. However, consistent Many commenters expressed apply to NWPs 49 and 50. See 72 FR with section 713(a) of SMCRA, we opposition to the use of coal as a fuel 11148–49 and 11151–52. encourage SMCRA regulatory for the generation of electricity, The preamble to General Condition authorities and the agencies expressing concern about its role in 27, which applies to NWPs 21, 49, and administering the Clean Water Act to climate change. We acknowledge the 50, describes the Corps’ decisionmaking share permit application data and commenters’ concerns. However, process as follows: environmental analyses to streamline regulations adopted under SMCRA are In reviewing the PCN [preconstruction the permitting processes under SMCRA not the appropriate venue to address notification] for the proposed activity, the and the Clean Water Act. climate change issues. Coal-fired power

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plants produce more than half of the planting of trees as part of the mine apply the rule in any other way would electricity used in the United States and reclamation process. Young forests, be nonsensical and that applying the the use of coal as a fuel for power especially robustly growing young rule to activities that are designed to generation is likely to increase. Nothing hardwood forests like those found on take place in stream channels would in SMCRA authorizes us to regulate reclaimed minesites that use the forestry seriously impair the viability of coal electric power generation facilities or to reclamation approach encouraged under mining in central Appalachia. The adopt regulations or take other actions the Appalachian Regional Reforestation historical application of the 1983 rule for the purpose of reducing the use of Initiative, are generally recognized as an closely resembles the revised stream coal for the generation of electricity or effective means of removing carbon buffer zone rules that we are adopting to require carbon sequestration. Indeed, dioxide from the atmosphere. today. Consequently, the revised rules are in fact a clarification of the 1983 in SCMRA, Congress repeatedly B. We Should Withdraw the Proposed rule, not a reversal of that rule. mentions the importance of coal to the Rule and Enforce the 1983 Stream Nation, including the continued Buffer Zone, the Meaning of Which Is C. We Should Not Adopt Any Rule That production of coal as an energy source. Clear as Written Facilitates Mountaintop Mining Section 101(b) of SMCRA states that Operations or the Filling of Streams ‘‘coal mining operations presently Many commenters argued that we contribute significantly to the Nation’s should withdraw the proposed rule and Many commenters objected to the energy requirements.’’ Section 101(d) instead fully implement and enforce the proposed rule based on the perception refers to ‘‘the expansion of coal mining 1983 version of the stream buffer zone that the rule would facilitate to meet the Nation’s energy needs’’ and rule at 30 CFR 816.57 and 817.57. mountaintop removal operations and section 101(j) notes that ‘‘surface and According to the commenters, there is other large-scale surface mines and underground coal mining operations no need to clarify the meaning of the related mining techniques currently * * * contribute to the economic well- 1983 rule because the plain language of used to extract coal from the being, security, and general welfare of that rule precludes the construction of mountainous regions of central the Nation.’’ Section 102(f) specifies that excess spoil and coal mine waste fills in Appalachia. The commenters cited the one of the purposes of SMCRA is to perennial and intermittent streams. The damage that those operations allegedly ‘‘assure that the coal supply essential to commenters stated that the proposed cause to streams, hardwood forests, fish the Nation’s energy requirements and to rule is a reversal of the 1983 rule, not and wildlife, water supplies, and the a clarification, because it specifies that landscape and culture of Appalachia as its economic and social well-being is excess spoil fills, refuse piles, and justification for prohibiting that type of provided.’’ That paragraph also provides certain other activities conducted in the mining. We understand the that one of the purposes of SMCRA is stream as part of surface coal mining commenters’ concerns. to ‘‘strike a balance between protection operations are not subject to the However, the perception that the of the environment and agricultural prohibition on disturbance of the stream proposed rule or this final rule would productivity and the Nation’s need for buffer zone. remove an obstacle to mountaintop coal as an essential source of energy.’’ We disagree with the commenters’ removal operations or other large-scale Taken together, these passages and the interpretation of the 1983 rule. mining operations is inaccurate. As we other purposes of SMCRA listed in Historically, both the 1983 rule and its explained in the preamble to the section 102 indicate that the regulatory state counterparts have been applied in proposed rule, our changes to the stream provisions of SMCRA were enacted not a manner that has allowed the buffer zone rule are intended to clarify to discourage the production or use of construction of fills in perennial and when and how that rule applies, coal but rather to ensure that coal is intermittent streams as part of surface consistent with the historical mined in a manner that respects coal mining operations, provided those application of the 1983 rule under both property rights and minimizes adverse fills comply with all other applicable SMCRA and the Clean Water Act. Our impacts on land and water resources requirements of the SMCRA regulatory revisions are not intended to restrict and communities. As stated in section program and with all pertinent coal removal. Nor are they intended to 102(a) of SMCRA, in enacting SMCRA, requirements under the Clean Water promote or discourage any particular Congress intended to ‘‘establish a Act. In other words, the 1983 stream method of mining, including nationwide program to protect society buffer zone rule applied only to mountaintop removal. and the environment from the adverse activities within 100 feet of a perennial In enacting SMCRA, Congress did not effects of surface coal mining or intermittent stream. It did not apply ban mountaintop removal operations or operations.’’ (Emphasis added.) There is to activities planned to occur in the construction of excess spoil fills in no indication that Congress intended intermittent or perennial streams. streams. Indeed, section 515(c) of that the Act operate as a means of Maintaining a 100-foot buffer zone to SMCRA specifically authorizes the use regulating the burning and use of coal protect the stream’s water quality and of mountaintop removal methods to as opposed to the manner and locations environmental resources makes sense recover coal seams in steep-slope areas, in which coal is mined. only if the stream segment adjacent to and section 515(b)(22)(D) allows the The lack of regulatory authority does the buffer zone is to remain intact. This construction of excess spoil fills in areas not mean that we are indifferent to the historical interpretation and application that ‘‘contain springs, natural water potential problems posed by climate of the stream buffer zone rule is in courses, or wet weather seeps’’ if a change from greenhouse gas emissions harmony with a statement of the U.S. proper drainage system is installed. As like carbon dioxide. In cooperation with Court of Appeals for the Fourth Circuit stated in section 102(f), two of the Act’s industry, academia, conservation in Kentuckians for the Commonwealth, purposes are to ‘‘assure the coal supply organizations, individual landowners, Inc. v. Rivenburgh, 317 F.3d 425, 443 essential to the Nation’s energy and others, we developed the (4th Cir. 2003) (‘‘it is beyond dispute requirements and to its economic and Appalachian Regional Reforestation that SMCRA recognized the possibility social well-being is provided’’ and to Initiative, which encourages both the of placing excess spoil material in ‘‘strike a balance between protection of reclamation of mined lands in a manner waters of the United States’’). Several the environment and agricultural that is favorable to tree growth and the industry commenters stated that to productivity and the Nation’s need for

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coal as an essential source of energy.’’ watersheds as small as 40.8 acres and development waste, is typically brought When Congress wanted to place certain intermittent streams in watersheds as to the surface and placed either in lands off-limits to coal mining, in whole small as 14.5 acres. See Katherine S. refuse piles or in excess spoil fills that or in part, or to prohibit certain types of Paybins, Flow Origin, Drainage Area, meet the requirements for refuse piles, mining, in whole or in part, it did so by and Hydrologic Characteristics for as required by 30 CFR 817.71(i). including provisions in the Act to that Headwater Streams in Mountaintop Activities associated with coal effect. See, e.g., section 522 Coal-Mining Region of Southern West preparation plants also may result in the [‘‘Designating Areas Unsuitable for Virginia, Water Resources Investigations filling of some stream segments. These Surface Coal Mining’’], section 510(b)(5) Report 02–4300, U.S. Geological Survey, plants clean coal by removing [alluvial valley floors west of the 2003, p. 1. Consequently, the impurities, especially ash, hundredth meridian], and section 516(c) construction of excess spoil fills in incombustible rock, and sulfur. They [underground coal mining under those valleys often involves burying the create large quantities of coal processing urbanized areas]. Otherwise, SMCRA upper reaches of perennial and waste, including both a very fine and its implementing regulations intermittent streams. fraction, which is often suspended in establish how coal is to be mined, not A further description of the existing water in a semi-liquid form (slurry) and whether it may be mined. The environment of the central Appalachian a coarse fraction (refuse). The slurry is regulations that we are adopting today coalfields can be found in the draft and usually impounded behind dams are consistent with the statute in that final environmental impact statements constructed of coarse refuse in a valley they are intended to minimize the issued in 2003 and 2005, respectively, adjacent to the plant. adverse impacts of surface coal mining by the U.S. Environmental Protection One industry commenter stated that operations on fish, wildlife, and related Agency (EPA), the U.S. Army Corps of underground coal mining in central environmental values without Engineers (COE or the Corps), the U.S. Appalachia depends on fills in mostly prohibiting the use of specific methods Fish and Wildlife Service (FWS), OSM, intermittent streams to store material of mining or the recovery of coal from and the West Virginia Department of from mine bench and stockpile lands that have not been designated as Environmental Protection. The draft construction and for sedimentation unsuitable for surface coal mining EIS, which the final EIS incorporates by ponds and road crossings. The operations. reference, contains the bulk of that commenter also noted that coal Most fill material placed in streams in description. The draft EIS is entitled processing waste is deposited in valley connection with coal mining is a result ‘‘Mountaintop Mining/Valley Fills in fills associated with coal preparation of the need to dispose of excess spoil Appalachia Draft Programmatic plants. Therefore, according to the generated by mining operations Environmental Impact Statement’’ (EPA commenter, without valley fills, coal conducted in areas consisting of steep 9–03–R–00013, EPA Region 3, June mining in central Appalachia is slopes and narrow valleys. To remove 2003) and is available at http:// doomed. While the commenter’s coal by surface mining methods, the www.epa.gov/region3/mtntop/eis.htm. statement may be somewhat of an formerly solid rock strata overlying the The final EIS, which is entitled exaggeration, there is little doubt that a coal seam must be broken up into ‘‘Mountaintop Mining/Valley Fills in prohibition on placement of excess spoil fragments and excavated. The broken Appalachia Final Programmatic and coal mine waste in perennial or rock fragments (referred to as spoil) are Environmental Impact Statement’’ (EPA intermittent streams would have a separated by numerous voids, resulting 9–03–R–05002, EPA Region 3, October significant adverse impact not only on in a significant increase in volume over 2005), is available at http:// surface mines, but also on underground the volume of solid rock in place before www.epa.gov/region3/mtntop/pdf/mtm- mines and coal preparation plants. _ _ mining. The increase in volume varies vf fpeis full-document.pdf. Pages 7–8 of the final report dated considerably depending upon the nature Underground mines also may result in January 13, 2003, for an economic study of the rock and the mining method, but the filling of some stream segments prepared for us by Hill & Associates, the industry average is about 25 percent. where other viable options may not Inc. (Contract No. CT212142) contains Returning all spoil to the mined-out area exist, especially in steep-slope areas. the following discussion: in steep-slope terrain would create Rock and other overburden materials highly unstable conditions and in most removed as part of the cut made to We received strong input from the mining community that it is an egregious mistake to cases is physically impossible. expose the coal seam into which the ignore impacts of the valley fill limitations Consequently, some spoil must be mine entries and ventilation shafts are on deep mines, especially new ones. First, permanently placed outside the mined- driven typically are used to construct an many deep mines are co-dependent on out area in engineered fills, typically in adjoining bench upon which mine related surface mines for quality blending the upper reaches of valleys adjacent to offices, parking lots, equipment, and requirements and even economic averaging the mine. As defined in 30 CFR 701.5, other support facilities are located. This arrangements. Eliminating or reducing the spoil not needed to restore the process is referred to as ‘‘facing up’’ the surface mining has a direct impact on the approximate original contour and mine. Any material removed as part of viability of the deep mining in these instances. Second, the typical reject rate in disposed of in locations other than the the face-up operation that is not used to Central Appalachia from a wash plant mined-out area is considered ‘‘excess construct the bench or placed in associated with a deep mine is about 50%. spoil.’’ temporary storage for use in restoring Thus, for every one ton of coal mined, one The central Appalachian coalfields the approximate original contour and ton of refuse is placed in a valley fill or are characterized by highly eroded reclaiming the face-up area once the related impoundment. In fact, the valley fills plateaus dissected by numerous narrow, mine closes permanently is excess spoil. associated with wash plant refuse are deeply incised valleys with steep side Should such excess spoil exist, it would generally among the larger valley fills slopes. In this region, even small valleys be placed in fills on adjacent hillsides associated with coal mining (with generally larger watershed) but are fewer in number may contain intermittent and perennial or in adjoining valleys. Underground than surface mining valley fills. Third, the streams. For example, in a study mining operations also may involve the construction of a new deep mine involves conducted in West Virginia, the United excavation of non-coal waste rock from other valley fill issues. Often, a new deep States Geological Survey found that, on underground tunnels. The waste rock, mine is accompanied by a new wash plant average, perennial streams begin in which we define as underground with a new valley fill for refuse.

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The Hill & Associates report uses the technology currently available to protect concluded that prohibiting construction term ‘‘deep mines’’ for underground the fish, wildlife, and related of fills in intermittent and perennial mines and the term ‘‘wash plants’’ for environmental values associated with streams would have a dramatic impact coal preparation plants. In addition, in those streams. on coal recovery: the report, the term ‘‘valley fills’’ However, the universal protection of Limiting valley fills to the ephemeral includes all excess spoil fills and coal mature forest cover and headwater streams resulted in significant or total loss of mine waste disposal facilities streams all the way to the top of the the coal resource for 9 of the 11 mine sites constructed as part of a surface mine. ridge or the head of the stream would when compared to the original mine site The following excerpt from a colloquy preclude viable surface mining plans. All of the coal resource was lost for between Senators Howard Baker of operations in almost all cases, especially 6 of the 11 mine sites. By restricting fills to Tennessee and Henry Jackson of in Appalachia. Sections 515(b)(24) and the ephemeral streams, the total coal Washington concerning S. 425, a 1973 516(b)(11) of SMCRA provide that recovery is estimated at 18.6 million tons, a 90.9 percent reduction. The original estimate bill that was a precursor to SMCRA, surface coal mining and reclamation operations must use the best technology was 186 million tons. The team noted that illustrates that Congress was cognizant even if smaller fills could be constructed, of the potential scale of mountaintop currently available to minimize they would impact nearly every available removal operations and the attendant disturbances to and adverse impacts on valley, possibly increasing the overall fills: fish, wildlife, and related environmental environmental impact. values, but only ‘‘to the extent Mr. BAKER. Mr. President, the last Hence, this final rule does not possible.’’ The ‘‘to the extent possible’’ question I have to put, so that we may look absolutely prohibit the conduct of clause in these statutory provisions this squarely in the face, is this: Would the surface activities in intermittent or distinguished chairman of the committee say recognizes that, because surface coal mining operations inherently involve perennial streams, nor does it require certainly that what we are doing is maintenance of an undisturbed buffer sanctioning mountain top mining to the significant disturbance of the land, extent where whole mountains may be those operations necessarily result in between surface activities and the stripped down to ground level, and the some disturbances to and adverse intermittent or perennial stream in storage of millions of tons of overburden may impacts on fish, wildlife, and related situations where it is not possible to do be placed in the hollows, creating hundreds environmental values. Therefore, the so because of the nature of the proposed of thousands of acres of new flat land, and determination of what constitutes the surface coal mining operations. In other that if we are going to adopt this variance best technology currently available to words, avoidance of any disturbance to which I intend to support, we should do it the stream and maintenance of an with our eyes wide open to the fact that minimize those adverse impacts is a site-specific determination that must be undisturbed buffer for the stream is not whole mountains may disappear from the required if avoidance would preclude landscape? made in the context of the site’s Mr. JACKSON. The answer is, yes, of geologic, topographic, and ecological the conduct of surface coal mining and course * * *. What we want to do is achieve characteristics (including the location of reclamation operations. the twin objectives, here, of being able to the coal) and the nature of the mining However, in keeping with the maintain a mining operation that will be operation. This approach is consistent statutory requirement to use the best satisfactory from an economic point of view, with our regulatory definition of ‘‘best technology currently available to the but also that will be environmentally technology currently available’’ in 30 extent possible, and in response to the acceptable. CFR 701.5, a definition that has commenters’ concerns, we have revised 119 Cong. Rec. S33314 (daily ed. remained unchanged since 1979. For the rule to include a requirement that, October 9, 1973). example, it is almost never possible to when a permit application includes a conduct surface coal mining operations proposal to disturb a perennial or D. We Should Ensure the Protection of intermittent stream or land within 100 Headwater Streams by Requiring without disturbing ephemeral streams, especially in a mesic environment. In feet of such a stream, the permit Maintenance of an Undisturbed Buffer applicant must demonstrate to the Between Mining Activities and Streams those cases, the best technology currently available would focus on how satisfaction of the regulatory authority A number of commenters emphasized the site is reclaimed after mining, in that avoiding disturbance of a perennial that headwater streams and mature particular, use of the revegetation, or intermittent stream or lands within forest cover are important to maintain restoration, and fish and wildlife habitat 100 feet of such a stream is not the health of the ecological and enhancement measures mentioned in reasonably possible. See paragraphs biological functions of the entire stream. sections 816.97 and 817.97 of our rules. (b)(1), (c)(1), (d)(1), and (e)(1) of sections According to the commenters, In addition, many surface coal mining 780.28 and 784.28, paragraph (d)(1)(i) of numerous studies have clearly operations necessarily involve sections 780.25 and 784.16, and demonstrated that stream buffer zones disturbance of intermittent or perennial paragraph (a)(3)(i) of sections 780.35 of native vegetation (generally streams and all or part of the buffer zone and 784.19 of the final rule. Those hardwood forests in the central for the stream segment in which the provisions of our final rule use the term Appalachian coal mining region) activities listed in paragraphs (b)(1) ‘‘reasonably possible’’ to clarify that the represent the best technology currently through (b)(4) of sections 816.57 and phrase ‘‘to the extent possible’’ in available for protecting the functions of 817.57 of this final rule occur. For sections 515(b)(24) and 516(b)(11) of headwater streams. example, in 2000 in West Virginia, a SMCRA should not be interpreted as We agree with the commenters that team consisting of representatives from requiring the use of any theoretically headwater streams make a significant OSM, the West Virginia Division of possible approach to compliance with contribution to ecosystem function and Environmental Protection, industry, and the minimization requirement without the ecological productivity of the environmental community regard to cost or other provisions of downstream flows. We also agree that, completed an engineering evaluation of SMCRA. Those provisions include in the absence of other considerations, 14 proposed mine sites, which were section 515(b)(1), which requires that precluding surface coal mining and representative of all proposed mining surface coal mining operations be reclamation operations in or near sites in West Virginia. As summarized conducted ‘‘so as to maximize the headwater streams may be the best on page 2 of the report, the team utilization and conservation of the solid

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fuel resource being recovered so that E. We Have Not Accorded Sufficient provisions of that title. The purposes in reaffecting the land in the future Importance to the Environmental section 102 can provide support or through surface coal mining can be Protection Purposes of SMCRA guidance for a regulation, but in and of minimized,’’ and section 102(f), which Several commenters objected to our themselves they do not establish specifies that one of the purposes of repeated references to section 102(f) of requirements or authority for a SMCRA is to ensure that the coal supply SMCRA in the preamble to the proposed regulation and they do not suffice to essential to the nation’s energy rule. Section 102(f) provides that one of justify adoption of a regulation (or requirements is provided. Section 102(f) the purposes of SMCRA is to ‘‘assure interpretation of an existing regulation) also calls for establishment of a that the coal supply essential to the that is inconsistent with specific regulatory program that balances Nation’s energy requirements and to its requirements or other provisions of the economic and social well-being is Act. environmental protection and coal Within title V, section 515(c) provided’’ and to ‘‘strike a balance production. We believe that our final expressly requires that our regulations between protection of the environment rule strikes that balance by using the establish provisions under which and agricultural productivity and the term ‘‘reasonably possible’’ to interpret mountaintop removal mining operations Nation’s need for coal as an essential and apply the requirements of sections may be permitted: ‘‘Each State program source of energy.’’ 30 U.S.C. 1202(f). 515(b)(24) and 516(b)(11) of the Act. may and each Federal program shall The commenters allege that, in include procedures pursuant to which A survey of all coal mining permits developing our proposed rule, we the regulatory authority may permit issued between October 1, 2001, and completely ignored the other purposes [mountaintop removal] operations.’’ 30 June 30, 2005, indicates that coal listed in section 102, in particular those mining activities authorized by those U.S.C. 1265(c)(1). Adoption of a rule (or in paragraphs (a) [‘‘establish a interpretation of an existing rule) to permits will directly affect about 535 nationwide program to protect society miles of streams nationwide, of which prohibit placement of excess spoil and and the environment from the adverse coal mine waste in streams, as the 324 miles (60.6 percent) are in the effects of surface coal mining commenters advocate on the basis of the central Appalachian coalfields. Based operations’’], (c) [‘‘assure that surface environmental protection purposes of on data from the West Virginia permits, coal mining operations are not paragraphs (a), (c), and (d) of section we estimate that approximately two- conducted where reclamation as 102 of SMCRA, would be inconsistent thirds of the 324 miles will be required by this Act is not feasible’’], with this provision of SMCRA because permanently covered by excess spoil and (d) [‘‘assure that surface coal mining mountaintop removal operations—and fills and coal mine waste disposal operations are so conducted as to most other types of mining operations in facilities. When segments of headwater protect the environment’’]. The steep-slope areas—typically cannot be streams are buried permanently by commenters argue that the result is to conducted without construction of excess spoil or mine waste fills, the skew the analysis of SMCRA in favor of excess spoil fills in streams. In a study discharge from the toe of the fill is resource development while conducted in West Virginia, the United equivalent to a spring. The groin ditches overlooking negative impacts to streams, States Geological Survey found that, on associated with the fill are too steep to water quality, and fish habitat. The average, perennial streams begin in fully replicate the buried stream commenters made these arguments in watersheds as small as 40.8 acres and segment. As discussed in the the context of advocating protection for intermittent streams in watersheds as headwater streams and interpreting the environmental impact statement for this small as 14.5 acres. See Katherine S. 1983 rule in a manner that would rulemaking, typically, the stream Paybins, Flow Origin, Drainage Area, preclude the construction of excess segment downstream of the discharge and Hydrologic Characteristics for spoil fills and coal mine waste disposal Headwater Streams in Mountaintop from the toe of the fill has a higher base facilities in streams. flow rate and lower peak flows than it Coal-Mining Region of Southern West We disagree with the commenters’ Virginia, Water Resources Investigations did before construction of the fill. The allegations. The purposes of SMCRA in Report 02–4300, U.S. Geological Survey, temperature of the flow is also cooler section 102 explain what Congress 2003, p.1. Industry commenters also and less variable than that of the intended to accomplish through the asserted that underground mining original stream. Most of the remaining specific provisions found in the rest of operations in central Appalachia would miles of stream directly affected by the Act. They do not provide be severely curtailed by such a mining operations should experience independent rulemaking authority. In limitation because those operations only temporary adverse environmental particular, they do not provide authority need to construct fills to contain impacts, chiefly as a result of mining to adopt regulations that would underground development waste through those streams. In those cases, preclude surface coal mining operations generated by the face-up and other the streams are diverted and relocated on lands where those operations are not aspects of mine construction. It would while the mining operation proceeds otherwise prohibited by SMCRA. Any be difficult to construct those fills in through the streambed. When mining is regulations adopted under SMCRA (as steep-slope areas without impacting an completed, the stream is restored to its well as any interpretation of an existing intermittent or perennial stream. original location unless the relocation is rule) must be consistent with the In addition, section 515(b)(22)(D) of permanent. specific provisions of the Act. The SMCRA authorizes the placement of environmental protection standards and excess spoil in areas that ‘‘contain Finally, our existing rules require that other provisions of title V of the Act set springs, natural water courses, or wet fills be revegetated in a manner out specific requirements, consistent weather seeps’’ if proper underdrains consistent with the approved with the environmental protection and are constructed. Ephemeral, postmining land use. In time, we other purposes of SMCRA, for the intermittent, and perennial streams are anticipate that hardwood forests will be regulation of surface coal mining and all natural watercourses. Springs are reestablished on most fill surfaces in reclamation operations. Therefore, any groundwater discharges. Discharges Appalachia. regulations implementing title V must from springs typically form intermittent be consistent with and based upon the or perennial streams. In relevant part,

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our rules at 30 CFR 701.5 define an ecosystem, so long as the alternative Mining Association made similar ‘‘intermittent stream’’ as a stream or does not have other significant adverse comments with respect to our proposed reach of a stream that obtains its flow environmental consequences.’’ excess spoil rules, arguing that the from both surface runoff and ground Therefore, according to the commenters, rulemaking record does not demonstrate water discharge.’’ Therefore, by this final rule would violate the Clean a need for applying the excess spoil authorizing placement of excess spoil in Water Act, which would mean that EPA rules to any other areas. areas that contain springs and natural has no basis under the Clean Water Act We do not agree with the commenters’ watercourses, section 515(b)(22)(D) of for concurrence with the final rule. recommendations. We believe that SMCRA clearly allows construction of Another commenter argues the rule is perennial and intermittent streams excess spoil fills in intermittent and not consistent with the Clean Water Act potentially affected by excess spoil fills perennial streams, provided the because it authorizes waste assimilation and coal mine waste disposal facilities necessary underdrains are installed. in streams, which the Clean Water Act in non-steep-slope areas and areas Interpreting the purposes of SMCRA prohibits. outside central Appalachia merit the listed in paragraphs (a), (c), and (d) of We do not agree with the commenters. same protection as streams in central section 102 as authorizing adoption of a Section 501(a)(B) of SMCRA does not Appalachia. Furthermore, states that rule (or interpretation of an existing establish a requirement that the EPA may have very few operations involving rule) to effectively prohibit construction Administrator’s concurrence be based placement of excess spoil or coal mine of excess spoil fills in perennial and upon provisions of the Clean Water Act. waste in perennial or intermittent intermittent streams thus would be Moreover, the requirements of the Clean streams would incur only minimal inconsistent with section 515(b)(22)(D) Water Act apply independently of any additional resource costs in processing of SMCRA and, by extension, section regulations adopted under SMCRA. See applications for those operations. 515(c) of SMCRA. section 702(a)(2) of SMCRA, which The vast majority of excess spoil fills provides that nothing in SMCRA ‘‘shall that involve placement of excess spoil F. EPA Cannot Legally Concur With the be construed as superseding, amending, in perennial or intermittent streams are Revised Stream Buffer Zone Rules modifying, or repealing’’ the Clean located in steep-slope areas of central Because They Violate the Clean Water Water Act or any regulations or state Appalachia. However, those structures Act laws adopted under authority of that are occasionally constructed in streams Section 501(a)(B) of SMCRA specifies law. Our final rules at 30 CFR in other states and other areas. For that we must obtain the written 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), example, with respect to excess spoil concurrence of the EPA Administrator and 817.57(a)(2) reiterate this fills, a nationwide survey of all coal with respect to regulations that relate to relationship between SMCRA and the mining permits issued between October air or water quality standards published Clean Water Act and emphasize that 1, 2001, and June 30, 2005, found that under the authority of either the Clean issuance of a SMCRA permit does not those permits included a total of 1,612 Air Act or the Clean Water Act. That authorize initiation of surface coal excess spoil fills, of which 1,589 (98.6 provision applies to some of the changes mining operations for which the percent) are located in the central that we are making in this final rule. applicant has not obtained all necessary Appalachian coalfields. Specifically, Several commenters stated that EPA authorizations, certifications, and most of the fills approved in those cannot legally concur with the proposed permits under the Clean Water Act. permits are located in Kentucky (1,079), rule because it would result in Therefore, EPA’s concurrence with the West Virginia (372), and Virginia (125), significant degradation to the aquatic final rule is not contrary to the Clean with 13 approved in Tennessee. ecosystem in violation of the Clean Water Act. However, the remaining fills approved Water Act regulations at 40 CFR during that time are located in Alaska, 230.10(c), which are part of the G. The Applicability of the Final Rules Alabama, Ohio, Pennsylvania, and 404(b)(1) Guidelines. The commenters Should Be Limited to Steep-Slope Areas Washington, so we believe that argue that, by eliminating the provision and Mountaintop Removal Operations sufficient basis exists for a national in the 1983 stream buffer zone rule that The Pennsylvania regulatory authority rulemaking. This survey is discussed in required a finding that the proposed recommended that we not proceed with greater detail in the environmental activity would not cause or contribute to this rulemaking because it would impact statement that accompanies this a violation of state or federal water impose additional burdens on rule. quality standards and would not Pennsylvania, create uncertainty for Surface coal mining operations adversely affect the water quality, both citizen groups and mine operators, nationwide generate coal mine waste. quantity, or other environmental and would likely lead to extensive and Except in very flat terrain, refuse piles resources of the stream, the proposed costly litigation. According to the and especially slurry impoundments are rule would implicitly allow effects that commenter, the rule’s benefits would constructed in stream valleys. There is are both adverse and significant. not offset the unfunded burdens, no basis for limiting the scope of our According to the commenters, this uncertainties and litigation that would coal mine waste rules to steep-slope result would be inconsistent with 40 result from adoption of the regulations. areas or mountaintop removal mining. CFR 230.10(c), which provides that, Pennsylvania also stated that if we In addition, the stream buffer zone subject to an exception that is not proceed with a final rule, that rule rule is national in scope, as are the germane here, ‘‘no discharge of dredged should not require all states to change stream diversion rules. The frequency of or fill material shall be permitted which their programs to address a matter that use of those rules has little relationship will cause or contribute to significant is an issue only in those few states that to topography or type of mining. Surface degradation of the waters of the United have mountaintop removal operations coal mining operations routinely States.’’ In addition, 40 CFR 230.10(a) and steep-slope mining. Instead, encounter perennial and intermittent provides that ‘‘no discharge of dredged Pennsylvania recommended that we use streams in both steep-slope and non- or fill material shall be permitted if the specific authority of section 515 of steep-slope areas. The changes that we there is a practicable alternative to the SMCRA to craft a rule tailored to have made to the stream buffer zone proposed discharge which would have mountaintop removal operations and rules, especially the new permit less adverse impact on the aquatic steep-slope mining. The National application requirements for operations

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that propose to disturb the surface of VII. Why did we decide against meaning. The commenters stated that lands within 100 feet of a perennial or applying the stream buffer zone rule to the various organizational units of the intermittent stream and the revised all waters of the United States Corps and EPA vary greatly in their findings that the regulatory authority (WOTUS)? interpretation and application of the must make before approving an On August 24, 2007, we proposed to term WOTUS and that the scope of that exception to the buffer zone revise the scope of our stream buffer term is constantly evolving as the courts requirement, have universal zone rules at 30 CFR 816.57 and 817.57, struggle to define the jurisdictional applicability and utility, as do the which applied to perennial and reach of the Clean Water Act. One changes to the stream diversion rules. intermittent streams, to apply to all commenter noted that the Supreme waters of the United States, which Court has been unable to agree on even Finally, we do not agree with the a single governing principle for commenter’s characterization of the rule would include certain lakes, ponds, wetlands, and reaches of ephemeral WOTUS. See Solid Waste Agency of as creating uncertainty. To the contrary, Northern Cook County v. U.S. Army this rule is intended in part to address streams. We had two reasons for proposing this change. First, the scope Corps of Eng’rs, 531 U.S. 159 (2001) and resolve the controversy and of the statutory provisions that form the (SWANCC); Rapanos v. U.S., 547 U.S. uncertainty surrounding the 1983 basis for the stream buffer zone rule, i.e., 715 (2006). The commenter concluded stream buffer zone rule. The permitting sections 515(b)(10)(B)(i) and (24) and that ‘‘OSM should not anchor its decisions that the regulatory authority 516(b)(9)(B) and (11) of SMCRA, is not regulatory program on such an unstable must make under this final rule differ limited to perennial or intermittent foundation,’’ a sentiment shared by little in complexity from those that the streams. Instead, those provisions other commenters. regulatory authority must make under broadly require that, to the extent We received numerous comments to other provisions of the existing rules. As possible using the best technology the effect that the proposed rule change in the case of other situations in which currently available, surface coal mining would be unnecessary and possibly the regulatory authority must apply operations be conducted so as to counterproductive because the subjective requirements, we anticipate prevent additional contributions of definitions of perennial and intermittent that the regulatory authority will use suspended solids to streamflow or streams in both our rules and state best professional judgment in runoff outside the permit area and that regulatory programs under SMCRA are determining compliance. Therefore, we surface coal mining and reclamation clear and relatively straightforward to decline to adopt the commenter’s operations be conducted so as to implement, while WOTUS is not. The Virginia regulatory authority recommendations. minimize disturbances to and adverse impacts on fish, wildlife, and related commented that adding lakes, ponds, H. The Stream Buffer Zone Rule Is environmental values. Sedimentation and wetlands to the scope of the buffer Unnecessary and Should be Removed in and sediment-laden runoff from mine zone rule would probably not be much Its Entirety sites could degrade those values. of a change to that agency’s existing practice, apart from the matter of Several commenters advocated Second, we anticipated that achieving greater consistency with the obtaining jurisdictional determinations, completely removing the stream buffer terminology used in regulatory but that it would replace an established zone rule, noting that nothing in programs under the Clean Water Act and effective regulatory term with no SMCRA mandates adoption of such a would remove one obstacle to better real benefit gained. rule. One commenter noted that removal coordination and streamlining of the Several commenters opposed of the stream buffer zone rule would be SMCRA and Clean Water Act permitting changing the scope of our stream buffer the most effective method of eliminating processes. zone rules to WOTUS because the ambiguity from the federal regulations In the preamble to the proposed rule, unsettled and subjective meaning of that concerning fill construction. The we requested comment on whether the term would spawn considerable commenters stated that maintaining a increased regulatory consistency and uncertainty, which would be contrary to stream buffer zone rule is not needed to other benefits of adopting the term our stated objective of clarifying the provide SMCRA-mandated WOTUS would outweigh the existing stream buffer zone rules. The environmental protection and that the jurisdictional and other problems National Mining Association elaborated statute and regulations are replete with associated with use of that term as part upon this argument as follows: other regulatory requirements that of the SMCRA regulatory program. See When OSM revised the [stream buffer directly address the concerns for which 72 FR 48900, August 24, 2007. We zone] rule in 1983, the principal reason for the stream buffer zone rule was adopted. found little public support for the limiting the rule to perennial and proposed change. intermittent streams was because the earlier We considered the option All three iterations of the stream version referencing streams with a biological recommended by the commenters, but community was confusing and difficult to buffer zone rule that we adopted since apply. This, according to the agency, ‘‘led to decided to retain the stream buffer zone the enactment of SMCRA have applied rule. With respect to perennial and confusion on the part of operators’’ only to perennial and intermittent attempting to apply the amorphous and ill- intermittent streams, we believe that the streams or subsets thereof. Many defined biological community standard. In rule serves a useful role in establishing commenters opposed disturbing that response to challenges from several a buffer zone as the best technology regulatory stability, noting that our rules environmental groups, the federal district currently available to comply with the at 30 CFR 701.5 define perennial and court upheld the agency’s reasoning holding statutory requirements to minimize intermittent streams in a well- that ‘‘it is precisely this type of justification, disturbances and adverse impacts on understood manner consistent with based on practical experience and expertise fish, wildlife, and related environmental that justifies such a change.’’ Moreover, the other generally accepted definitions of court noted that the stream buffer zone rule values, provided maintenance of a those terms. They expressed concern is not the only, or the most important, one buffer zone is reasonably possible. See that use of WOTUS would be confusing in OSM’s regulation[s] to implement the discussion in Part VI.D. of this because that term has no clearly §§ 515(b)(10) and (24). [Footnotes omitted.] preamble. established legal or programmatic * * * Here the practical experience discloses

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that changing the scope of the rule to bodies of water to which stream buffer zone leading to waters being declared unprotected WOTUS will be even more confusing and provisions apply. If adopted, the rule would when they in fact should remain difficult to apply than the 1979 rule due to no longer apply to all perennial and jurisdictional. the vague and confusing status of the intermittent streams, but instead would cover Three commenters (the U.S. Fish and meaning of waters of the United States. ‘‘waters of the United States.’’ Although this Wildlife Service, the Geologic Resources The Association also expressed is touted as providing ‘‘increased environmental protection and consistency and Water Resources Divisions of the concern that the adoption of WOTUS, a with the Clean Water Act,’’ less protection National Park Service, and the Clean Water Act term that we have no and more confusion seems inevitable if the Pennsylvania Fish and Boat authority to interpret or define, could proposal is adopted. Commission) expressly supported the have unintended impacts on SMCRA To begin with, this proposal appears to be proposed use of WOTUS in defining the regulatory programs and the regulated a solution in search of a problem. OSM scope of the stream buffer zone rules. community because we have no control acknowledges: ‘‘we do not anticipate that this However, two of the three expressed over how that term may be defined in change in terminology will result in a concern that the change might reduce the future. significant expansion in the applicability of our rules because the vast majority of waters the protection afforded to perennial and Several commenters expressed intermittent streams. The U.S. Fish and concern that the use of WOTUS would that may be affected by surface coal mining and reclamation operations are perennial and Wildlife Service stated that it supported greatly delay the SMCRA permitting intermittent streams.’’ By itself, this fact is the use of WOTUS ‘‘as a matter of process because of the need to obtain not a reason to reject the proposal; we agree regulatory consistency and sound public jurisdictional determinations from the with the idea that a wide range of water policy, but remains concerned about the U.S. Army Corps of Engineers in bodies ought to be protected from mining- unsettled nature of jurisdictional accordance with a guidance document related damage, as SMCRA contains determinations in headwater streams’’ issued by EPA and the Corps on June 5, provisions that seek to protect water bodies in the wake of recent Supreme Court 2007, entitled ‘‘Clean Water Act beyond streams. However, in view of the other problems discussed below with linking decisions. The Service requested that Jurisdiction Following the U.S. Supreme we work with them ‘‘to develop a Court’s Decision in Rapanos v. United the Stream Buffer Zone rule to ‘‘waters of the United States’’ under the Clean Water Act, process to monitor the extent to which States & Carabell v. United States,’’ the likely incremental benefit of including intermittent or perennial streams are http://www.epa.gov/owow/wetlands/ other water bodies does not justify the determined not to be ‘waters of the pdf/RapanosGuidance6507.pdf. change. U.S.’ ’’ The Pennsylvania Fish and Boat According to the commenters, that If there is one thing that conservation Commission strongly urged that we also document appears to require that permit groups, the federal government, and the coal retain the rule’s applicability to applicants seek jurisdictional mining companies probably can agree on in perennial and intermittent streams determinations from the Corps in many this rulemaking, it is that it is not clear today what aquatic features qualify as ‘‘waters of because application of those terms in more situations than was the case before the SMCRA context is not dependent issuance of the guidance document. The the United States,’’ at least without further factual inquiry. As a result of two Supreme upon a jurisdictional determination by National Mining Association stated that Court decisions and unhelpful ‘‘guidance’’ by the U.S. Army Corps of Engineers. The the Corps already has a massive backlog EPA and the Army Corps of Engineers, some Commission expressed the fear that of requests for jurisdictional have come to the conclusion that even adoption of WOTUS without also determinations. Because we are not certain streams may not qualify as ‘‘waters of retaining the rule’s applicability to adopting the use of WOTUS for other the United States’’ protected by the Clean perennial and intermittent streams reasons, we did not investigate the Water Act’s core programs. ‘‘would weaken or reduce the protection accuracy of these comments. However, * * * * * on most streams, especially headwater for informational purposes, we note that Were the Stream Buffer Zone rule to be streams.’’ the Corps also issued Regulatory amended by the proposed rule to apply to The Geologic Resources and Water Guidance Letter No. 08–02 on June 26, ‘‘waters of the United States,’’ then, we have significant concern that it may be applied to Resources Divisions of the National Park 2008. That letter provides further Service stated that they fully supported guidance on jurisdictional only a subset of perennial and intermittent streams, whereas it historically has applied the proposed change because many determinations and related procedures. to all such streams. Effectively, implementing high-value aquatic ecosystems are The National Mining Association this change may lead to the proposed rule neither perennial nor intermittent stated that it supports coordination of protecting fewer streams than the Stream streams. According to the commenter, and reduction of duplication between Buffer Zone rule has in the past * * *. the proposed rule change would not the SMCRA and Clean Water Act Finally, we do not believe that it is place an undue burden or impact on permitting processes, but that, based on feasible, as OSM suggests, to resolve these operators, especially when considering its experience in promoting that goal jurisdictional issues by having ‘‘the SMCRA the environmental benefits that would during the past seven years, it did not regulatory authority * * * consult and coordinate with the Corps of Engineers in be realized through protecting a more see any realistic probability that inclusive set of aquatic systems, changing the focus of the buffer zone situations in which there is a question as to whether waters within or adjacent to the including wetlands, lakes, and ponds. rule from perennial and intermittent proposed permit area are waters of the The commenter stated that the National streams to WOTUS would achieve that United States under the Clean Water Act.’’ As Park Service routinely seeks permits goal. The Association also stated that it the OSM may or not be aware, it is the EPA, through local Corps offices and has did not foresee any discernible not the Corps, that has the responsibility for never found that this requirement environmental benefits from the determining which water bodies are ‘‘waters imposed a burden or had a substantial proposed change in focus. of the United States’’ for purposes of the 404 impact on the completion of any project. Comments submitted on behalf of 12 program and the entire Clean Water Act. After evaluating the comments national environmental organizations The EPA, working in conjunction with the received, we find the arguments against Corps, is just beginning to make many also strongly opposed the proposed use adoption of WOTUS persuasive. The of WOTUS to define the scope of the jurisdictional and non-jurisdictional determinations using Rapanos as a guide, final rule that we are adopting today stream buffer zone rule: and the preliminary indications are that the retains the status quo with respect to the One of the most perplexing aspects of the process is very time-consuming and, more scope of the stream buffer zone rule; i.e., proposed rule is OSM’s plan to change the importantly, may be so arbitrary that it is that rule will continue to apply to

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perennial and intermittent streams as to minimize disturbances to and VIII. Section-by-section analysis: How rather than to WOTUS. Rather than adverse impacts on fish, wildlife, and are we revising our rules? attempting to introduce Clean Water Act related environmental values. A. Sections 780.14 and 784.23 terminology and procedures into Most significantly, 30 CFR 780.16(b) Operation Plan: Maps and Plans regulations implementing SMCRA, we and 784.21(b) require that each permit believe that the more prudent and As proposed, we are revising 30 CFR application include a fish and wildlife defensible course of action is to adopt 780.14(b)(11) and 784.23(b)(10) by terminology and requirements based on protection and enhancement plan. The replacing the terms ‘‘coal processing provisions of SMCRA. SMCRA does not plan must describe how, to the extent waste bank’’ and ‘‘coal processing waste use the term WOTUS in establishing possible, using the best technology dam and embankment’’ with ‘‘refuse regulatory requirements for surface coal currently available, the operator will pile’’ and ‘‘coal mine waste impounding mining operations, but it does refer to minimize disturbances and adverse structure’’ to employ terminology streams. At the same time, section impacts on fish, wildlife, and related consistent with the definitions and 702(a) of SMCRA clearly specifies that environmental values during surface performance standards that we adopted nothing in SMCRA may be construed as coal mining and reclamation operations September 26, 1983. See the discussion superseding, amending, modifying, or and how enhancement of those under the heading ‘‘Changes to conform repealing the Clean Water Act or its resources will be achieved where to 1983 rule revisions’’ in Part VIII.B. of implementing regulations. Therefore, practicable. The plan must be consistent this preamble for a more detailed issuance of a SMCRA permit does not with the requirements of 30 CFR 816.97 explanation. authorize the permittee to initiate or 817.97 and it must include protective In addition, as proposed, we are activities for which a permit, measures to be taken during the active replacing the references to sections certification, or other authorization is mining phase. The rule lists the 780.35(c) and 816.71(b) in the former required under the Clean Water Act. establishment of buffer zones as one version of section 780.14(c) with a The final rules at 30 CFR 780.28(f)(2), example of those protective measures. reference to section 780.35 to be 784.28(f)(2), 816.57(a)(2), and consistent with other changes that we 817.57(a)(2) that we are adopting today Under 30 CFR 816.97(a) and are making to those rules. Those reiterate that fact. 817.97(a), the operator must, to the changes include moving the design One commenter strongly disagreed extent possible, using the best certification requirement formerly with our statement in the preamble to technology currently available, located in section 816.71(b) to section proposed 30 CFR 780.28 and 784.28 that minimize disturbances and adverse 780.35(b) to consolidate permitting we did not anticipate that switching impacts on fish and wildlife and related requirements. In similar fashion, as from perennial and intermittent streams environmental values and must achieve proposed, we are deleting the reference to WOTUS would result in a significant enhancement of those resources where to section 817.71(b) formerly located in expansion in the applicability of our practicable. Paragraph (f) of 30 CFR section 784.23(c) because we are moving rules because the vast majority of waters 816.97 and 817.97 provides that the the design certification provisions that may be affected by surface coal operator must avoid disturbances to, previously located in section 817.71(b) mining and reclamation operations are enhance where practicable, restore, or to section 784.19(b) to consolidate perennial and intermittent streams. This replace wetlands and riparian permitting requirements. There is no comment is now moot in light of our vegetation along rivers and streams and need for a replacement cross-reference decision not to adopt WOTUS. bordering ponds and lakes. Paragraph (f) because section 784.23(c) already cross- We also wish to clarify that we use references section 784.19 in its entirety. the terms perennial, intermittent, and also requires that the operator avoid disturbances to, enhance where We received no comments concerning ephemeral streams, as defined in 30 the proposed changes discussed above. CFR 701.5, to implement the SMCRA practicable, or restore habitats of regulatory program. Our definitions of unusually high value for fish and B. Sections 780.25 and 784.16 those terms do not affect jurisdictional wildlife. Reclamation Plan: Siltation Structures, determinations under the Clean Water With respect to water quality, 30 CFR Impoundments, Refuse Piles, and Coal Act. The Corps and EPA are responsible 780.21(h) and 784.14(g) require that Mine Waste Impounding Structures for making those jurisdictional each permit application include a 1. Changes To Conform to 1983 determinations. hydrologic reclamation plan indicating Revisions to Definitions and Although we have decided not to how the relevant requirements of 30 adopt WOTUS as part of the stream Performance Standards CFR part 816 or 817, including sections buffer zone rule, our existing rules will On September 26, 1983 (48 FR 44006), 816.41 through 816.43 or 817.41 continue to provide protection to lakes, we revised the definitions and ponds, wetlands, and, to some extent, through 817.43, will be met. The plan performance standards in our ephemeral streams by other means. must be specific to local hydrologic regulations relating to coal mine waste Those rules fully implement the conditions and it must contain the steps to be more consistent with the statutory provisions that form the basis to be taken to minimize disturbances to terminology used by the Mine Safety for the stream buffer zone rule, i.e., the hydrologic balance within the and Health Administration (MSHA). As sections 515(b)(10)(B)(i) and (24) and permit and adjacent areas. Under 30 we stated at 48 FR 44009, col. 1, ‘‘[i]t is 516(b)(9)(B) and (11) of SMCRA, which CFR 816.41(a) and 817.41(a), all surface undesirable to have two regulatory require that, to the extent possible using and underground mining and programs for the same subject that the best technology currently available, reclamation activities must be contain conflicting standards or which surface coal mining operations be conducted to minimize disturbance of use fundamentally different conducted so as to prevent additional the hydrologic balance within the terminology.’’ contributions of suspended solids to permit and adjacent areas. Among other things, we adopted streamflow or runoff outside the permit definitions of three new terms in 30 CFR area and that surface coal mining and 701.5. ‘‘Coal mine waste’’ is defined as reclamation operations be conducted so ‘‘coal processing waste and

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underground development waste.’’ that coal mine waste (including 2. Paragraph (a)(2) ‘‘Impounding structure’’ is defined as ‘‘a underground development waste) This paragraph sets forth design dam, embankment, or other structure disposed of outside the mine workings requirements for all impoundments used to impound water, slurry, or other and excavations be placed in other than low hazard impoundments. liquid or semi-liquid material.’’ ‘‘Refuse accordance with 30 CFR 817.83, which As proposed, we are removing the last pile’’ is defined as ‘‘a surface deposit of contains the performance standards for sentence of former paragraph (a)(2) of coal mine waste that does not impound refuse piles. The commenters argued sections 780.25 and 784.16 and water, slurry, or other liquid or semi- that underground development waste redesignating the remainder of that liquid material.’’ The latter two terms should be treated as excess spoil, not paragraph as paragraph (a)(2)(i) of those are consistent with the terminology of coal mine waste. The commenters’ sections. We are redesignating the last MSHA’s rules. ‘‘Refuse pile’’ replaces objections are untimely. The definition sentence of former paragraph (a)(2) as the term ‘‘coal processing waste bank’’ of coal mine waste in 30 CFR 701.5 is paragraph (a)(2)(ii). In addition, we are previously used in our rules, while now a matter of settled law, as is the redesignating former subparagraphs ‘‘impounding structure’’ incorporates performance standard at 30 CFR (a)(2)(i) through (iv) of sections 780.25 (but is not limited to) all structures that 817.81(a), which requires that coal mine and 784.16 as subparagraphs (a)(2)(ii)(A) our rules previously referred to as coal waste disposed of outside the mine through (D) of those sections. We are processing waste dams or embankments. In concert with the new definition of workings and excavations be placed in making these redesignations because coal mine waste, we revised our designated coal mine waste disposal both the last sentence of former performance standards at 30 CFR areas within the permit area. The paragraph (a)(2) and former 817.71–817.74 to eliminate the language existing regulations at 30 CFR 817.71(i) subparagraphs (i) through (iv) apply to that combined underground allow coal mine waste to be placed in all structures meeting the criteria of 30 development waste with excess spoil for excess spoil fills with the approval of CFR 77.216(a), while the remainder of purposes of performances standards for the regulatory authority, but only if the former paragraph (a)(2) applies only to underground mines. Because the waste is nontoxic and non-acid-forming those impoundments that meet the Class definition of coal mine waste includes and only if the waste is placed in B or C criteria (now the Significant underground development waste, we accordance with 30 CFR 817.83 (the Hazard Class or High Hazard Class revised our rules to specify that the requirements for refuse piles). criteria, respectively) for dams in the U.S. Department of Agriculture, Natural disposal of underground development Several commenters expressed Resources Conservation Service (NRCS) waste is subject to the performance concern that the 1983 rule’s publication Technical Release No. 60, standards for refuse piles (30 CFR classification of underground ‘‘Earth Dams and Reservoirs.’’ 817.83) rather than the performance development waste as coal mine waste standards for the disposal of excess As proposed, we are revising could prohibit the use of underground redesignated paragraph (a)(2)(i) of spoil that applied under the old rules. development material for construction However, we did not revise our sections 780.25 and 784.16 to update of face-up areas, support facilities, and the incorporation by reference of the permitting requirements in a similar other beneficial uses. We do not fashion at that time. Therefore, in our NRCS publication ‘‘Earth Dams and understand how underground Reservoirs,’’ Technical Release No. 60 August 24, 2007, proposed rule, we development waste could be used for proposed to modify our regulations in (210–VI–TR60, October 1985), by the construction of face-up areas replacing the reference to the October 30 CFR parts 780 and 784 to harmonize because the face-up of the mine must be those rules with our 1983 changes to the 1985 edition with a reference to the completed and construction of mine definitions and performance standards superseding July 2005 edition. adits must begin before underground concerning coal mine waste. In essence, Consistent with the terminology in the development waste would be produced. in the proposed rule, we replaced the newer edition, we are replacing Perhaps the commenters are interpreting term ‘‘coal processing waste banks’’ references to Class B or C dam criteria with ‘‘refuse piles’’ and the term ‘‘coal the 1983 rules as classifying material with references to Significant Hazard processing waste dams and removed as part of the face-up of the Class or High Hazard Class dam criteria, embankments’’ with references to coal underground mine as underground respectively. Only the terminology has mine waste impounding structures. development waste. If so, the changed—the actual criteria remain the As proposed, this final rule revises commenters are misreading those rules. same as before. The newer publication the heading and contents of sections Nothing in the definitions of coal mine is not available from the National 780.25 and 784.16 by replacing the waste or underground development Technical Information Service, but is terms ‘‘coal processing waste bank’’ and waste classifies face-up materials as available online from the Natural ‘‘coal processing waste dam and either coal mine waste or underground Resources Conservation Service (the embankment’’ with ‘‘refuse pile’’ and development waste. In addition, nothing successor to the Soil Conservation ‘‘coal mine waste impounding in our existing rules or the rules that we Service). Consequently, we are deleting structure.’’ With these changes, our are adopting today would prohibit the the ordering information pertinent to permitting requirements concerning use of underground development waste the National Technical Information coal mine waste employ terminology for construction of support facilities or Service and replacing it with the URL consistent with the definitions and other mining-related uses, provided the (Web address) at which the publication performance standards for coal mine use of the waste for those purposes may be reviewed and from which it may waste that we adopted on September 26, complies with all regulatory program be downloaded without charge. We are 1983. requirements applicable to those uses. also updating the address and location We received no comments on the The final rules that we are adopting of our administrative record room and revisions discussed above. However, today apply only to the permanent updating the URL information (Web some industry commenters opposed the disposal of coal mine waste (including address) for the National Archives and September 26, 1983, rule changes that underground development waste), not Records Administration. classified underground development to the temporary use of those materials We received no comments on the waste as coal mine waste and required for mining-related purposes. changes discussed above.

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3. Paragraph (c) 4. Paragraph (d) Introductory Language environmental protection requirements Paragraph (c) contains design The final rule includes new for those facilities. Industry commenters strongly requirements that apply to all introductory language specifying that an opposed the requirement in proposed impoundments. To improve clarity and applicant for a permit must comply with paragraph (d)(1) for an analysis of consistency with other regulations, we all applicable requirements in alternatives for placement of coal mine are revising paragraph (c)(2) of sections paragraphs (d)(1) through (3) if the waste. The commenters cited a variety 780.25 and 784.16 as proposed by applicant proposes to place coal mine of reasons, including excessive costs, replacing the term ‘‘Mine Safety and waste in a refuse pile or impoundment delays in permitting, the probable lack Health Administration’’ with a citation or use coal mine waste to construct an of environmental benefits, the potential to 30 CFR 77.216(a), which contains the impounding structure. This for conflict between the SMCRA MSHA impoundment criteria to which requirement, which is not new, is a regulatory authority’s application of the paragraph (c)(2) refers. Revised nonsubstantive editorial change that alternatives analysis requirement and paragraph (c)(2) requires that plans for reflects the structure of the final rule. the approach adopted by the Clean impoundments meeting MSHA criteria 5. Paragraph (d)(1) Water Act permitting authority, comply with MSHA’s impoundment duplication of effort with the Clean We have extensively revised design requirements at 30 CFR 77.216– Water Act, a lack of justification under paragraph (d)(1) of sections 780.25 and 2. We are deleting the requirement that SMCRA, exceeding the intent of those plans also comply with 30 CFR 784.16 in response to comments. Final SMCRA, and a fear that this requirement 77.216–1. The deleted requirement is sections 780.25(d)(1) and 784.16(d)(1) could result in a never-ending cycle of not germane to permit applications and are identical except that the reference to analysis and litigation concerning plans because it contains signage section 816.59 in section 780.25(d)(1) is whether the correct alternative was requirements that apply only to replaced with a reference to 817.59 in selected by the permit applicant and impoundments that already exist or are section 784.16(d)(1). approved by the state regulatory under construction. We are also making This new paragraph contains authority. Many commenters stated that two nonsubstantive changes: Replacing requirements for minimizing adverse the requirement for an alternatives ‘‘shall’’ with ‘‘must’’ in keeping with environmental impacts on perennial analysis has no basis in SMCRA and plain language principles and, in the and intermittent streams and adjacent instead appears to be a mixture of second sentence, deleting an obsolete areas when a permit application provisions borrowed from the National reference to paragraph (a). proposes to construct a refuse pile or Environmental Policy Act and the Clean The final rule also includes a new slurry impoundment or to use coal mine Water Act. paragraph (c)(4). We originally proposed waste to construct an impounding Nothing in the proposed alternatives to redesignate paragraph (f) of sections structure. We are adopting these analysis requirement in paragraph (d)(1) 780.25 and 784.16 as paragraph (e) of requirements under the authority of of sections 780.25 and 784.16 of the those sections. In a nonsubstantive sections 515(b)(24) and 516(b)(11) of final rule is based upon the National editorial revision, we are instead SMCRA. Those statutory provisions Environmental Policy Act. We redesignating paragraph (f) [paragraph require that, to the extent possible using respectfully disagree with those (e) in our 2007 proposed rule] as the best technology currently available, commenters who argued that the paragraph (c)(4) of sections 780.25 and surface coal mining and reclamation requirement for an alternatives analysis 784.16. The paragraph in question operations be conducted to minimize is a Clean Water Act requirement that applies only to impoundments that meet disturbances and adverse impacts on has no basis or justification under certain criteria in NRCS Technical fish, wildlife, and related environmental SMCRA and that exceeds the intent of Release No. 60 or the criteria of 30 CFR values. SMCRA. We acknowledge that we 77.216(a). It has no relevance to other Discussion of General Comments derived this element of our proposed types of siltation structures or to refuse Received on Paragraph (d)(1) rules from the alternatives analysis piles. Therefore, it is more appropriate requirements of the 404(b)(1) Guidelines as part of paragraph (c), which applies Several commenters argued that we in 40 CFR part 230, which include the to all types of impoundments, including have no authority to adopt these substantive environmental criteria used coal mine waste impoundments, rather regulations because section 515(f) of in evaluating activities regulated under than as a separate paragraph (e). SMCRA, which contains requirements section 404 of the Clean Water Act. Consistent with this redesignation, we for refuse piles and slurry However, we concluded that a modified are also deleting the references to impoundments, only mentions criteria version of the alternatives analysis paragraphs (b) [siltation structures] and related to safety, not environmental requirements in the 404(b)(1) Guidelines (d) [coal mine waste impoundments and protection. We do not agree with the is an appropriate means of obtaining the refuse piles] that appeared in proposed commenters. SMCRA contains background data and analyses that both paragraph (e). Final paragraph (c)(4) is numerous environmental protection the applicant and the regulatory otherwise identical to proposed requirements, including those set forth authority need to make informed paragraph (e). As proposed, we also are in sections 515(b)(24) and 516(b)(11), decisions concerning compliance with revising this paragraph to be consistent that apply to all surface coal mining and the requirements of sections 515(b)(24) with the terminology in the July 2005 reclamation operations and all aspects and 516(b)(11) of SMCRA, which edition of NRCS Technical Release No. of those operations, including the provide that surface coal mining and 60 by replacing references to Class B or disposal of coal mine waste. The fact reclamation operations must be C dam criteria with references to that section 515(f) does not mention conducted to minimize disturbances to Significant Hazard Class or High Hazard environmental protection in no way and adverse impacts on fish, wildlife, Class dam criteria, respectively. Only suggests that coal mine waste disposal and related environmental values to the the terminology has changed; the actual facilities need not comply with the extent possible, using the best criteria remain the same as before. environmental protection provisions of technology currently available. We received no comments on the SMCRA or that we lack the authority to Therefore, paragraphs (d)(1)(ii) and changes discussed above. adopt regulations establishing (d)(1)(iii) of sections 780.25 and 784.16

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of this final rule apply the alternatives the provisions of this final rule that that are already encompassed by the analysis requirement to all applications authorize the SMCRA regulatory SMCRA permitting scheme. As that propose to place coal mine waste in authority to accept an analysis of discussed elsewhere in this preamble, or within 100 feet of a perennial or alternatives completed for Clean Water we believe that the alternatives analysis intermittent stream. In addition, Act purposes as meeting the requirement that we are adopting as part paragraph (d)(1)(iii)(A) of these sections requirements for an analysis of of this final rule differs from and serves of the final rule applies more detailed alternatives under this final rule, when a somewhat different purpose than the analytical requirements to applications and to the extent appropriate. However, alternatives analysis requirement under that propose to place coal mine waste in we believe that maintaining the the regulations and other documents perennial or intermittent streams as distinction between those programs is implementing section 404 of the Clean opposed to applications that propose to both administratively and legally Water Act. To the extent that place coal mine waste only within 100 appropriate. That conclusion is duplication may exist, we encourage feet of those streams. supported by the comments that we states to coordinate the processing of A few commenters criticized the received from both industry and state coal mining permit applications with analysis of alternatives provisions of the regulatory authorities. the U.S. Army Corps of Engineers in proposed rule because they did not Many industry commenters, accordance with a memorandum of completely parallel the requirements of supported by some, but not all, state understanding entitled ‘‘Memorandum the 404(b)(1) Guidelines in 40 CFR part regulatory authority commenters, stated of Understanding among the U.S. Army 230. At least one commenter that the proposed alternatives analysis Corps of Engineers, the U.S. Office of recommended that we incorporate the requirement would introduce a major Surface Mining, the U.S. Environmental 404(b)(1) Guidelines by reference. We new element of uncertainty, and result Protection Agency, and the U.S. Fish do not find this recommendation in costly and wasteful duplication of and Wildlife Service for the Purpose of appropriate because the 404(b)(1) effort on the part of permit applicants Providing Concurrent and Coordinated Guidelines are designed to implement and state regulatory authorities. The Review and Processing of Surface Coal the Clean Water Act, while our commenters stated that this element of Mining Applications Proposing regulations implement SMCRA and our proposed rule was inconsistent with Placement of Dredged and/or Fill must be based upon SMCRA our statement in the preamble to that Material in Waters of the United States,’’ requirements. Under section 702(a) of rule that a primary reason for the which took effect February 8, 2005. This SMCRA, nothing in SMCRA may be rulemaking was to provide improved final rule also authorizes the SMCRA construed as amending, modifying, clarity and reduction of uncertainty regulatory authority to accept an repealing, or superseding any Clean regarding the meaning of the analysis of alternatives completed for Water Act requirement. However, there regulations. One commenter stated that Clean Water Act purposes as meeting is also nothing in SMCRA that would at best the alternatives analysis the requirements for an analysis of compel or authorize us to adopt requirement ‘‘adds yet another layer of alternatives under this final rule, when regulations that parallel or incorporate redundant paperwork and analysis as it and to the extent appropriate. Clean Water Act requirements. duplicates the federally-administered The Commission and some, but not SMCRA and the Clean Water Act 404 process. At worst, OSM has set the all, commenters representing individual provide for separate regulatory programs stage for conflicts between the section state regulatory authorities also opposed with different purposes and very 404 program and the largely state- the alternatives analysis requirement in different permitting requirements and implemented SMCRA programs.’’ The the proposed rule because of state fiscal procedures. In addition, as other commenter further stated that by constraints and fear of the ‘‘potentially commenters noted, SMCRA and the imposing an alternatives analysis overwhelming’’ time and effort that Clean Water Act differ considerably requirement on state regulatory would be required for state permitting with respect to jurisdiction. The Clean authorities, we are ‘‘flirting personnel to adequately review and Water Act focuses on regulating dangerously’’ with creating conflicting analyze alternatives. discharges of pollutants into waters of alternatives analyses because ‘‘the goals We anticipate that few, if any, state the United States, whereas SMCRA and objectives of SMCRA and regulatory authorities will experience a regulates a broad universe of corresponding state statutes may be significant increase in demands on their environmental and other impacts of different than those of the Corps and resources as a result of the alternatives surface coal mining and reclamation EPA under section 404.’’ analysis requirement in the final rule. operations, including impacts on water While we understand the West Virginia, one of the states most quantity, water quality, and terrestrial commenters’ apprehensions, these impacted by the rule, supported the and aquatic ecosystems. We encourage comments are speculative in nature. proposed rule. Kentucky, another state coordination and cooperation between There may be some initial uncertainty that would be significantly impacted, SMCRA regulatory authorities and the as regulatory authorities establish estimated that, on average, the new agencies administering the Clean Water procedures and criteria for requirement would add ten hours to the Act. See the memorandum of implementation of the alternative time required to process a permit understanding entitled ‘‘Memorandum analysis requirements and determining application. We believe that the of Understanding among the U.S. Army least overall adverse impact on fish, intangible environmental benefits of the Corps of Engineers, the U.S. Office of wildlife, and related environmental rule (increased scrutiny of efforts to Surface Mining, the U.S. Environmental values under this rule, but that minimize adverse impacts on fish, Protection Agency, and the U.S. Fish uncertainty should subside once those wildlife, and related environmental and Wildlife Service for the Purpose of procedures and criteria are in place. values associated with perennial and Providing Concurrent and Coordinated The Interstate Mining Compact intermittent streams) will outweigh Review and Processing of Surface Coal Commission, writing on behalf of what we anticipate will be a modest Mining Applications Proposing member state regulatory authorities, increase in demand on state regulatory Placement of Dredged and/or Fill argued that the alternative analysis authority resources. Material in Waters of the United States,’’ requirement is duplicative of The U.S. Fish and Wildlife Service which took effect February 8, 2005, and requirements under the Clean Water Act requested that we work with the Service

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to build a process into the alternative of SMCRA underlying this rule require mine waste impoundments. A number analysis requirements in the final rule to minimization of disturbances and of commenters on a similar provision in protect unique and high value fish and adverse impacts on fish, wildlife, and the proposed rule expressed concern wildlife resources. In response, we note related environmental values only ‘‘to that this provision was too vague and that our fish and wildlife protection the extent possible.’’ Avoiding could be interpreted as requiring an rules at 30 CFR 816.97(f) and 817.97(f) disturbance of the stream and unlimited number of alternatives, already require that the operator ‘‘avoid maintenance of an undisturbed buffer including those that have no possibility disturbances to, enhance where zone for that stream is the ultimate of being implemented. In response to practicable, or restore habitats of means of minimizing adverse impacts this concern, we have added language unusually high value for fish and on fish, wildlife, and related clarifying that this provision does not wildlife.’’ In addition, our permitting environmental values and hence is the require identification of all potential rules at 30 CFR 780.16 and 784.21 default best technology currently alternatives and that only those provide a role for the Service in available to comply with the statutory reasonably possible alternatives that are determining fish and wildlife data minimization requirement. However, likely to differ significantly in terms of collection requirements and reviewing there is sometimes no viable alternative impacts on fish, wildlife, and related the fish and wildlife protection plan in to the construction of coal mine waste environmental values need be identified the permit application. Therefore, disposal facilities in perennial or and considered. The latter provision is addition of the provision requested by intermittent streams and their buffer consistent with the policies to which the Service is not necessary. zones, in which case avoidance is not EPA and the Corps adhere in reasonably possible. Under those implementing section 404 of the Clean Discussion of Specific Provisions of circumstances, SMCRA—and hence this Water Act. See the EPA/COE Paragraph (d)(1) final rule—do not require avoidance. memorandum entitled ‘‘Appropriate In the final rule, the first sentence of Instead, the applicant must propose Level of Analysis Required for paragraph (d)(1) of sections 780.25 and other methods of complying with the Evaluating Compliance with the Section 784.16 provides that the permit minimization requirement that are 404(b)(1) Guidelines Alternatives applicant must design the operation to consistent with the proposed surface Requirements.’’ avoid placement of coal mine waste in coal mining operations. We do not In response to the commenters’ or within 100 feet of perennial and interpret SMCRA as authorizing us to concerns, we also added language to intermittent streams to the extent prohibit surface coal mining operations paragraph (d)(1)(ii) of the final rule possible. We added this provision in in situations other than those specifying that an alternative is response to EPA concerns and specifically set forth in the Act. reasonably possible if it conforms to the numerous comments urging greater However, SMCRA does not override safety, engineering, design, and protection for headwater streams prohibitions that apply under other laws construction requirements of the because of their ecological importance and regulations. Any such requirements regulatory program; is capable of being and contribution to the function of the and prohibitions will continue to apply done after consideration of cost, stream as a whole. In effect, the new according to the terms of those laws and logistics, and available technology; and sentence identifies avoiding placement regulations. is consistent with the coal recovery of coal mine waste in or within 100 feet Paragraph (d)(1)(i) of the final rule provisions of sections 816.59 and of perennial or intermittent streams as requires that the permit applicant 817.59. In other words, nothing in the the preferred method of complying with explain, to the satisfaction of the rule should be construed as elevating the SMCRA requirement to minimize regulatory authority, why an alternative environmental concerns over safety disturbances and adverse impacts on coal mine waste disposal method or an considerations, as prohibiting the fish, wildlife, and related environmental alternative location or configuration that conduct of surface coal mining values with respect to those streams. does not involve placement of coal mine operations that are not otherwise That is, whenever avoidance of waste in or within 100 feet of a prohibited under SMCRA or other laws disturbance is reasonably possible, the perennial or intermittent stream is not or regulations, or as requiring rule establishes avoidance as the best reasonably possible. We added this consideration of unreasonably technology currently available to meet requirement to reinforce the provision expensive or technologically infeasible the requirements of sections 515(b)(24) in paragraph (d)(1) of the final rule alternatives. and 516(b)(11) of SMCRA, which establishing avoidance of placement of The portion of this rule that refers to require minimization of disturbances coal mine waste in or within 100 feet of ‘‘consideration of cost, logistics, and and adverse impacts to fish, wildlife, a perennial or intermittent stream, available technology’’ is derived from and related environmental values to the whenever avoidance is reasonably the EPA regulations at 40 CFR extent possible using the best possible, as the best technology 230.10(a)(2), which define a practicable technology currently available. This currently available to comply with the alternative for purposes of section 404 provision of the final rule is consistent statutory requirement for minimization of the Clean Water Act. In interpreting with our stream buffer zone rules at 30 of disturbances and adverse impacts on this provision, the EPA/COE CFR 816.57 and 817.57, which establish fish, wildlife, and related environmental memorandum entitled ‘‘Appropriate maintenance of an undisturbed buffer values to the extent possible using the Level of Analysis Required for for perennial and intermittent streams best technology currently available. Evaluating Compliance with the Section as the best technology currently Paragraph (d)(1)(ii) of the final rule 404(b)(1) Guidelines Alternatives available to meet the requirements of provides that, if the permit applicant is Requirements’’ states that ‘‘[t]he sections 515(b)(24) and 516(b)(11) of unable to design the operation to avoid determination of what constitutes an SMCRA, provided maintenance of an placement of coal mine waste in or unreasonable expense should generally undisturbed buffer is reasonably within 100 feet of a perennial or consider whether the projected cost is possible. intermittent stream, the application substantially greater than the costs However, the final rule does not and must identify a reasonable range of normally associated with this particular cannot mandate avoidance in all cases alternative locations or configurations type of project.’’ We have included for all stream segments. The provisions for any proposed refuse piles or coal similar language in paragraph

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(d)(1)(ii)(B) of the final rule because (1) that is dependent upon the stream. As However, we did not make further the concept of a practicable alternative discussed below, this paragraph of the changes in response to this comment for purposes of section 404 of the Clean final rule includes a number of changes because the commenter did not explain Water Act is in some ways analogous to from the proposed rule as a result of the how the requirements should be the determination of reasonably possible comments that we received on the subdivided for clarity or why or how alternatives under this rule, and (2) the proposed rule. they create ambiguity. With respect to principle is consistent with the phrase One commenter stated that— the commenter’s statement that the ‘‘to the extent possible’’ in sections [T]he components of an alternatives assessments required by this rule will be 515(b)(24) and 516(b)(11) of SMCRA. analysis for a coal mine disposal activity, as impossible to validate in the absence of See Part VI.D. of this preamble for a set forth in proposed 30 CFR 784.16(d)(1)(ii), commonly recognized guidelines, we more extensive discussion of the should be subdivided for clarity and certain believe that the commenter may have rationale for our use of the term of the components should be reconsidered in misunderstood the purpose of the ‘‘reasonably possible’’ and its terms of their purpose or value. As written, evaluation required by this rule. The consistency with statutory provisions. 30 CFR 784.16(d)(1)(ii) requires ‘‘* * * an data and analyses required by this rule The final rule does not include the evaluation of short-term and long-term are intended only to facilitate provision in paragraph (d)(1)(i)(C) of the impacts on the aquatic ecosystem, both comparisons of the relative impacts of proposed rule stating that the least individually and on a cumulative basis’’ and various alternatives on fish, wildlife, costly alternative may not be selected at goes on to specify that the evaluation ‘‘must consider impacts on the physical, chemical, and related environmental values, not to the expense of environmental protection and biological characteristics of downstream establish reclamation standards. To the solely on the basis of cost. One flow, including seasonal variations in extent that the commenter may have commenter objected to the proposed temperature and volume, changes in stream meant that there are no generally provision as being too extreme and turbidity or sedimentation, the degree to accepted protocols for evaluating some subject to misinterpretation, noting that which the coal mine waste may introduce or of the listed characteristics, we believe there may be situations in which cost increase contaminants, the effects on aquatic that regulatory authorities have the could and should be the determining organisms and the extent to which wildlife technical capability to develop any factor. We agree. Nothing in SMCRA is dependent upon those organisms.’’ As needed protocols specific to conditions compels adoption of this provision. In strung together, these requirements create a within their states. lieu of this provision, we have added number of ambiguities, which will lead to One state regulatory authority urged problems in interpretation. The list also language to paragraph (d)(1)(ii)(B) of the includes terms that have no recognized us to revise the rule to include final rule clarifying that the fact that one meaning, such as ‘‘biological characteristics consideration of impacts such as traffic, alternative may cost somewhat more of downstream flows.’’ In addition to these dust and noise on local residents who than a different alternative does not ambiguities, this section also requires may be affected by a proposed necessarily warrant exclusion of the assessments that are new to the regulation of operation. While we encourage permit more costly alternative from mining activities, including assessments of applicants to consider these factors in consideration. We believe that the the effects of turbidity and of secondary designing their operations, we do not revised language is more consistent with impacts on wildlife that may be dependent consider them to be disturbances or sections 515(b)(24) and 516(b)(11) of on aquatic organisms in a potentially affected adverse impacts on fish, wildlife, and SMCRA, which require use of the best water body. In the absence of commonly related environmental values within the recognized guidelines, the results of these technology currently available, but only assessments will be virtually impossible to context of sections 515(b)(24) and to the extent possible. validate. 516(b)(11) of SMCRA. Therefore, we are Paragraph (d)(1)(iii) of the final rule not including those factors as required provides that any application proposing We have revised the rule to replace components of the alternatives analysis to place coal mine waste in or within the potentially confusing phrase under paragraph (d)(1)(iii) of the final 100 feet of a perennial or intermittent ‘‘biological characteristics of rule. stream must include an analysis of the downstream flows’’ with clearer Paragraph (d)(1)(iii)(B) of the final impacts of the alternatives identified in language requiring information on the rule allows the applicant to submit an paragraph (d)(1)(ii) on fish, wildlife, and biological characteristics of the stream analysis of alternatives prepared under related environmental values. The downstream of the proposed refuse pile 40 CFR 230.10 for Clean Water Act analysis must consider impacts on both or coal mine waste impoundment. See purposes in lieu of the analysis of terrestrial and aquatic ecosystems. paragraph (d)(1)(iii)(A) of final sections impacts on fish, wildlife, and related These provisions are substantively 780.25 and 784.16. We also replaced the environmental values required under identical to the corresponding requirement for an evaluation of the paragraph (d)(1)(iii)(A) of the final rule. provisions in the proposed rule. extent to which wildlife is dependent The regulatory authority will determine Paragraph (d)(1)(iii)(A) of the final upon aquatic organisms with a the extent to which that analysis rule provides that, for every alternative requirement for an evaluation of the satisfies the requirements of paragraph that proposes placement of coal mine effects of the proposed operation on (d)(1)(iii)(A) of the final rule. These waste in a perennial or intermittent wildlife that is dependent upon the provisions of the final rule are similar stream, the analysis must include an stream. In addition, we decided not to to their counterparts in the proposed evaluation of impacts on the physical, adopt the portion of proposed paragraph rule. chemical, and biological characteristics (d)(1)(ii) requiring that the analysis One commenter expressed dismay of the stream downstream of the include an evaluation of the short-term that the rule did not require that the proposed refuse pile or coal mine waste and long-term impacts of each regulatory authority accept the Clean impoundment, including seasonal alternative on the aquatic ecosystem, Water Act analysis of alternatives as variations in temperature and volume, both individually and on a cumulative fully meeting the requirements of this changes in stream turbidity or basis. This proposed requirement is rule. We do not believe that addition of sedimentation, the degree to which the subsumed within the other analytical this requirement to our rules would be coal mine waste may introduce or requirements of the final rule and would appropriate because the alternatives increase contaminants, and the effects not likely result in the submission of analysis required under the final rule on aquatic organisms and the wildlife any meaningful additional information. must address all environmental impacts

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(both aquatic and terrestrial) of surface Some commenters requested that we 303(d)-listed streams, etc.) in the watershed. coal mining operations, whereas the define or explain the term ‘‘least overall The regulatory authorities can also provide analysis of alternatives required under adverse environmental impact.’’ We do information on the appropriate watershed Clean Water Act regulations focuses on not believe that a meaningful definition scale to consider. The level of data and analysis for implementing a watershed impacts to waters of the United States. is possible, given the somewhat approach should be commensurate with the However, under the final rule, the subjective nature of the term and the scale of the project, to the extent appropriate SMCRA regulatory authority has the site-specific nature of determinations and reasonable. discretion to determine that an analysis under this rule. We expect that persons We agree that the analysis of potential of alternatives conducted for Clean preparing permit applications and alternatives required under paragraph Water Act purposes satisfies the regulatory authority personnel (d)(1)(ii) should appropriately consider requirements for an analysis of reviewing those applications will use the overall condition of the aquatic alternatives under this final rule, in their best professional judgment in resources in the watershed, including whole or in part, as appropriate. applying this standard. Consistent with any impacts from previous mining the commonly accepted meaning of the Paragraph (d)(1)(iv) of the final rule activities. requires selection of the alternative with words ‘‘overall’’ and ‘‘environmental,’’ the least overall adverse impact on fish, we have modified the rule to clarify that 6. Proposed Paragraph (d)(2) wildlife, and related environmental the scope of the term includes impacts In the proposed rule, paragraph (d)(2) values, including adverse impacts on to terrestrial ecosystems, not just of sections 780.25 and 784.16 provided water quality and aquatic and terrestrial impacts to water quality and aquatic that each application for an operation ecosystems, to the extent possible. The ecosystems. The relative importance of that will generate or dispose of coal proposed rule included an additional these three components, as well as the mine waste must describe the steps to sentence specifying that if the applicant constituents of each of those be taken to avoid or, if avoidance is not proposes to select a different alternative, components, will vary from site to site. possible, to minimize the adverse the applicant must demonstrate, to the Therefore, they are not readily defined environmental impacts that may result satisfaction of the regulatory authority, in a national rule. However, we have from the construction of refuse piles and why implementation of the more replaced the term ‘‘least overall adverse coal mine waste impoundments and environmentally protective alternative environmental impact’’ with the term impounding structures. The preamble to is not possible. The final rule does not ‘‘least overall adverse impact on fish, the proposed rule explained that this include this sentence because we have wildlife, and related environmental requirement applied to construction, determined that it is neither needed nor values’’ to be consistent with the maintenance, and reclamation of the appropriate in view of the other changes terminology of sections 515(b)(24) and alternative selected under paragraph that we have made to the rule. 516(b)(11) of SMCRA and to provide (d)(1)(i)(C). Specifically, we have added language to greater clarity. EPA recommended that we revise the paragraph (d)(1)(ii) of the final rule EPA encouraged both permit rule to incorporate the concepts of limiting the alternatives that the applicants and SMCRA regulatory avoidance and minimization of adverse applicant must identify to only those authorities to use a watershed approach environmental impacts into the alternatives that are reasonably possible. in determining which alternative would alternatives analysis required by In addition, we have added paragraph have the least overall adverse impact on paragraph (d)(1) of sections 780.25 and (d)(1)(i), which requires that the permit fish, wildlife, and related environmental 784.16 rather than placing them in a applicant explain, to the satisfaction of values: separate paragraph. EPA stated that the the regulatory authority, why an A watershed approach expands the intended purpose of the alternatives alternative that does not involve informational and analytic basis of site analysis is to determine the means by placement of coal mine waste in or selection decisions to ensure impacts are which coal mine waste could be within 100 feet of a perennial or considered on a watershed scale rather than disposed of with the least adverse intermittent stream is not reasonably only project by project. The idea being environmental impact. EPA further possible. locational factors (e.g., hydrology, surrounding land use) are important to recommended removal of the preamble The combination of these two changes evaluating the indirect and cumulative language in the proposed rule that means that the sentence in the proposed impacts of the project. Watershed planning specifies that the avoidance and rule is no longer logical or appropriate efforts can identify and prioritize where minimization requirements in proposed because the only alternatives considered preservation of existing aquatic resources are paragraph (d)(2) only apply to the under the final rule are those that are important for maintaining or improving the alternatives selected under proposed reasonably possible, which means that, quality (and functioning) of downstream paragraph (d)(1)(i)(C). According to within the universe of reasonably resources. The objective of this evaluation is EPA, these changes would reduce possible alternatives identified, the to maintain and improve the quantity and potential uncertainty regarding the quality of the watershed’s aquatic resources applicant must select the alternative and to ensure water quality standards appropriate factors to consider in the with the least overall adverse impact on (numeric and narrative criteria, anti- alternatives analysis and would fish, wildlife, and related environmental degradation, and designated uses) are met in reinforce the requirement to evaluate values. In other words, the sentence in downstream waters. different project locations and design the proposed rule no longer has any Permit applicants should work with federal elements when assessing the viability relevance or meaning because, under and state regulatory authorities to identify and environmental impacts of each the final rule, the applicant does not appropriate and available information, such location. have the option of proposing as existing watershed plans, or in the absence After considering these comments and alternatives that are not reasonably of such plans, existing information on the changes that we made to paragraph current watershed conditions and needs, past possible. Given that change, the final and current mining (and other development) (d)(1) in the final rule, we have decided rule provides that the applicant must trends, cumulative impacts of past, present, not to adopt proposed paragraph (d)(2) select the alternative with the least and reasonable foreseeable future mining because provisions of that paragraph are overall adverse impact on fish, wildlife, activities, and chronic environmental now redundant and unnecessary. Under and related environmental values. problems (e.g., poor water quality, CWA 30 CFR 816.97(a) and 817.97(a), the

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operator must, to the extent possible, perennial or intermittent stream is not In addition, revised paragraph (d)(3) using the best technology currently reasonably possible. Therefore, adoption of sections 780.25 and 784.16 does not available, minimize disturbances and of proposed paragraph (d)(2) is no contain the requirement formerly found adverse impacts on fish and wildlife longer appropriate because, as revised, in sections 780.25(e) and 784.16(e) that and related environmental values and paragraph (d)(1) of the final rule each plan for an impounding structure must achieve enhancement of those requires consideration of avoidance as comply with 30 CFR 77.216–1. As resources where practicable. Paragraph part of the alternatives analysis and proposed, we are deleting this cross- (f) of 30 CFR 816.97 and 817.97 selection process. reference because 30 CFR 77.216–1 does provides that the operator must avoid not include any design requirements. 7. Paragraphs (d)(2) and (3) disturbances to, enhance where Instead, that rule consists solely of practicable, restore, or replace wetlands As proposed, we are combining MSHA requirements for signage for and riparian vegetation along rivers and former paragraphs (d) and (e) of sections existing impoundments and streams and bordering ponds and lakes. 780.25 and 784.16, which contained impoundments under construction. That paragraph also requires that the design requirements for coal processing Consequently, there is no reason to operator avoid disturbances to, enhance waste banks, and former paragraph (e), retain this cross-reference because the where practicable, or restore habitats of which contained design requirements referenced requirement is not relevant unusually high value for fish and for coal processing waste dams and to preparation of plans or permit wildlife. Paragraph (b)(1) of 30 CFR embankments, into a substantially applications for proposed 780.16 and 784.21 requires that the fish revised paragraph (d). Paragraph (d)(2), impoundments. Final paragraph (d)(3) and wildlife protection and which contains design requirements retains the requirement that each plan enhancement plan in the permit specific to refuse piles, corresponds to for an impounding structure comply application be consistent with the former paragraph (d). Paragraph (d)(3), with 30 CFR 77.216–2, which contains requirements of 30 CFR 816.97 and which contains design requirements design requirements for impoundments 817.97, respectively. Therefore, specific to impoundments and and impounding structures. proposed paragraph (d)(2) would not impounding structures constructed of or We received no comments on the add any requirements that are not intended to impound coal mine waste, changes discussed above. already found in 30 CFR 816.97 and corresponds to former paragraph (e). C. Sections 780.28 and 784.28 Activities 817.97. Because of changes in other provisions in or Adjacent to Perennial or In addition, as revised in the final of paragraph (d), the nomenclature in Intermittent Streams the final rule differs slightly from the rule, paragraph (d)(1) of sections 780.25 As explained in the preamble to the and 784.16 provides that permit proposed rule in that proposed proposed rule, we are adding new applicants must design their operations paragraph (d)(3) is codified as paragraph sections 780.28 and 784.28 because the to avoid placement of coal mine waste (d)(2) in the final rule and proposed review and approval of proposals to in or within 100 feet of a perennial or paragraph (d)(4) is codified as paragraph disturb the surface of lands within 100 intermittent stream to the extent (d)(3) in the final rule. feet of perennial and intermittent possible. This new provision establishes As proposed, final paragraph (d)(2) of streams is a permitting action, not a avoidance of disturbance of perennial sections 780.25 and 784.16 does not performance standard. Consequently, as and intermittent streams and their include the cross-reference to section proposed, we are moving the permitting buffer zones as the best technology 816.84 formerly found in section aspects of the stream buffer zone rules, currently available to comply with the 780.25(d) and the cross-reference to which were formerly codified at 30 CFR requirement under sections 515(b)(24) section 817.84 formerly found in section 816.57(a)(1) and 817.57(a)(1) as part of and 516(b)(11) to minimize disturbances 784.16(d). We are deleting those cross- the performance standards in and adverse impacts on fish, wildlife, references because final sections subchapter K, to new sections 780.28 and related environmental values. 780.25(d)(2) and 784.16(d)(2) pertain and 784.28, which are part of the However, the statutory minimization only to refuse piles, not to the coal mine permitting requirements of subchapter requirement applies only ‘‘to the extent waste impounding structures to which G. We are also extensively revising the possible,’’ and, given the realities of sections 816.84 and 817.84 apply. The proposed rules in response to geology (which dictates where coal is deletion is not a substantive change comments. located), topography, and mining because the former version of the rules Sections 780.28 and 784.28 replace mechanics and economics, it is not did not pertain to coal mine waste the rules formerly located at 30 CFR always possible to implement the impounding structures either. 816.57(a)(1) and 817.57(a)(1), which ultimate form of minimization, which is Similarly, as proposed, final provided that the regulatory authority avoidance of disturbances, and still paragraph (d)(3) of sections 780.25 and may authorize activities on the surface conduct surface coal mining operations. 784.16 does not include the cross- of lands within 100 feet of a perennial Consequently, paragraph (d)(1) of the reference to section 816.83 formerly or intermittent stream only upon finding final rule requires that the applicant found in section 780.25(e) and the cross- that the activities will not cause or avoid disturbance only to the extent reference to section 817.83 formerly contribute to the violation of applicable possible. Paragraph (d)(1)(i) of the found in section 784.16(e). We are State or Federal water quality standards revised final rule provides that, when a deleting those cross-references because and will not adversely affect the water permit applicant proposes to construct a final sections 780.25(d)(3) and quantity and quality or other refuse pile or coal mine waste 784.16(d)(3) pertain only to coal mine environmental resources of the stream. impounding structure in or within 100 waste impoundments and impounding As discussed in Part VII of this feet of a perennial or intermittent structures, not to the refuse piles to preamble, we have decided to retain the stream, the applicant must explain, to which sections 816.83 and 817.83 scope of the original rules, which the satisfaction of the regulatory apply. The deletion is not a substantive applied to perennial and intermittent authority, why an alternative that does change because the former version of streams, rather than change the scope to not involve placement of coal mine the rules did not pertain to refuse piles waters of the United States, as we waste in or within 100 feet of a either. proposed on August 24, 2007.

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In the proposed rule, paragraph (a) of would be inconsistent with the continues to be significantly disturbed sections 780.28 and 784.28 defined their definition of ‘‘best technology currently or degraded by activities such as applicability, paragraph (b) established available’’ in 30 CFR 701.5 because it intensive agriculture. mapping requirements, paragraph (c) would not provide sufficient flexibility In summary, we have added the contained permit application to accommodate advances in science following requirements in response to requirements for obtaining a variance and technology. In particular, comments: from the prohibition on disturbance of commenters noted that we cited no • The regulatory authority’s decision the buffer zone established under technical or other support for the must be made in the form of written section 816.57 or section 817.57, proposition that there are equally findings. paragraph (d) contained standards for effective alternatives to buffer zones for • For activities to be conducted in a regulatory authority approval of a purposes of meeting the requirements of perennial or intermittent stream requested variance, paragraph (e) sections 515(b)(24) and 516(b)(11) of (including the activities listed in established permit application and SMCRA, which require that surface coal paragraphs (b)(2) through (b)(4) of regulatory authority approval mining and reclamation operations be sections 816.57 and 817.57), the permit requirements for activities that are not conducted so as to minimize application must demonstrate, and the subject to the prohibition on disturbances and adverse impacts on regulatory authority must find, that disturbance of the buffer zone, and fish, wildlife, and related environmental avoiding disturbance of the stream is paragraph (f) explained the relationship values to the extent possible using the not reasonably possible. See Part VI.D. between our rules and Clean Water Act best technology currently available. of this preamble for a more extensive requirements. Our discussion of the meaning of best discussion of our rationale for adopting One commenter suggested that we technology currently available in the the term ‘‘reasonably possible’’ and its streamline and simplify both the preamble to the proposed rule focused consistency with statutory provisions. structure of these sections and their on sediment control and meeting the We also added a requirement that the contents. The commenter requested that requirements of sections 515(b)(10)(B)(i) permit include a condition requiring a we modify the rule to more clearly and 516(b)(9)(B) of SMCRA, which demonstration of compliance with the distinguish between activities that will provide that surface coal mining Clean Water Act in the manner specified be conducted in the buffer zone for a operations must be conducted in a in paragraph (a)(2) of section 816.57 or perennial or intermittent stream and manner that prevents, to the extent section 817.57 before the permittee may those that are planned to be conducted possible using the best technology conduct any activities in a perennial or in the stream itself. The commenter also currently available, additional intermittent stream that require requested that we avoid describing the contributions of suspended solids to authorization or certification under the stream buffer zone requirement as a streamflow or to runoff outside the Clean Water Act. ‘‘prohibition’’ and argued that the new permit area. We are not repeating that • For activities to be conducted mapping requirements in proposed discussion in this preamble, although it within 100 feet of a perennial or paragraph (b) were unnecessary. We remains valid with respect to sediment intermittent stream, but not in the have accepted these comments and control. However, sediment control is stream itself, the permit application revised the rules accordingly. However, the focus of only two of the four must demonstrate, and the regulatory we did not adopt the actual rewrite of statutory provisions underlying the authority must find, that avoiding the rules that the commenter provided. stream buffer zone rule and is the disturbance of the stream is either not In addition, while sections 780.28 and subject of only half of the definition of reasonably possible or not necessary to 784.28 of the final rule do not refer to ‘‘best technology currently available’’ in meet the fish and wildlife and the stream buffer zone requirements of 30 CFR 701.5. hydrologic balance protection sections 816.57 and 817.57 as a We are revising sections 780.28 and provisions of the regulatory program. prohibition, we do not agree with the 784.28 to clarify that maintenance of an This requirement applies only to commenter that use of that term would undisturbed 100-foot buffer between the activities that will occur on land subject be an incorrect characterization. We stream and mining and reclamation to the buffer requirement of paragraph continue to use that term in the activities conducted on the surface of (a)(1) of sections 816.57 and 817.57. It preamble when appropriate. lands is the default best technology does not apply to activities conducted We also extensively restructured and currently available to meet the on lands included within the scope of revised these sections of the proposed underlying statutory requirements paragraph (b) of sections 816.57 and rule in response to numerous comments whenever the stream segment in 817.57; i.e., to what would have been (1) urging greater protection for question need not be disturbed and it is the buffer zone for those segments of a headwater streams in view of their possible to leave an undisturbed 100- perennial or intermittent stream for importance to the function and foot buffer. In other words, the final rule which the regulatory authority approves productivity of the stream as a whole, requires maintenance of an undisturbed one or more of the activities listed in and (2) emphasizing that maintenance l00-foot buffer unless the permit paragraphs (b)(1) through (b)(4) of of undisturbed buffer zones of mature applicant can demonstrate to the section 816.57 or 817.57. See Part VIII.I. native vegetation is the best technology satisfaction of the regulatory authority of this preamble. currently available to achieve the that maintaining a 100-foot buffer is For purposes of these sections, the requirements of sections 515(b)(24) and either not reasonably possible or not requirement to demonstrate that 516(b)(11) of the Act concerning necessary to meet the fish and wildlife avoidance of disturbance of the stream minimization of disturbances and and hydrologic balance protection or buffer zone is not reasonably possible adverse impacts on fish, wildlife, and provisions of the regulatory program. should not be construed as elevating related environmental values. We anticipate that the latter environmental concerns over safety Commenters objected to our preamble demonstration will be difficult to make considerations, as prohibiting the discussion of these sections in the with respect to fish and wildlife conduct of surface coal mining proposed rule in which we stated that protection requirements unless the operations that are not otherwise a rule establishing a buffer zone as the stream is highly polluted or the land prohibited under SMCRA or other laws, best technology currently available within the buffer has been and as prohibiting maximization of coal

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recovery to the extent provided in determining fish and wildlife data surface of lands in connection with an sections 816.59 and 817.59, or as collection requirements and reviewing underground coal mining operation. requiring unreasonably excessive the fish and wildlife protection and The following paragraphs discuss each expenditures to avoid disturbance. enhancement plan in the permit element of final sections 780.28 and However, by itself, the fact that application. Therefore, we believe that 784.28. designing and conducting the operation our existing rules provide adequate 1. Final Paragraph (a) to avoid disturbance of the stream or opportunity for involvement by the buffer zone may be more expensive than Service and that addition of the Paragraph (a)(1) of final sections designing and conducting it to include provisions requested by the Service 780.28 and 784.28 provides that, except disturbance of the stream or buffer zone would be redundant. However, we are as otherwise specified in paragraph does not necessarily mean that willing to work with the Service in (a)(2), those sections apply to avoidance of disturbance is not developing suggested guidelines for applications to conduct activities in reasonably possible. Consistent with the application of paragraphs (c)(3)(ii) and perennial or intermittent streams or on statutory directive to minimize (e)(2)(ii) of sections 780.28 and 784.28; the surface of lands within 100 feet, disturbances and adverse impacts on i.e., identifying measures and measured horizontally, of perennial or fish, wildlife, and related environmental techniques that may constitute the best intermittent streams. This paragraph values to the extent possible, using the technology currently available under reflects the fact that, under sections best technology currently available, the various situations to minimize 816.57(a) and 817.57(a), we prohibit permit applicant and the regulatory disturbances and adverse impacts on surface activities that would disturb the authority must weigh the environmental fish, wildlife, and related environmental surface of lands within 100 feet of benefits of avoiding disturbance against values to the extent possible, as required perennial and intermittent streams the cost of doing so and determine the by sections 780.16(b), 784.21(b), unless the regulatory authority approves appropriate balance based on site- 816.97(a), and 817.97(a). a variance from that prohibition or specific environmental, economic, Several commenters requested that we unless the exception in paragraph (b) of operational, and engineering clarify in the preamble that section sections 816.57 and 817.57 applies. We considerations, not the financial status 784.28 applies only to lands upon have added a clause clarifying that the of the permit applicant. which surface activities will exist and l00-foot buffer zone must be measured The U.S. Fish and Wildlife Service lands immediately adjacent to those horizontally, consistent with generally recommended that we revise these rules lands, not to areas that merely overlie accepted practice and convention with to include language similar to that used underground operations associated with respect to distance requirements. We in our rules governing selection of an underground mine. We agree with originally proposed to include this alternatives under the alternatives the position stated by the commenters clause in the mapping requirements of analysis requirements for coal mine and have inserted the word ‘‘surface’’ in paragraph (b), but we moved it to waste and excess spoil in sections the heading and other provisions of paragraph (a) as a result of our decision 780.25 and 780.35. We are not adopting section 784.28 to provide added clarity. not to adopt proposed paragraph (b). As this recommendation because an One commenter expressed concern that we stated in the preamble to proposed alternatives analysis is not a part of our use of the terms ‘‘adjacent’’ or ‘‘adjacent paragraph (b), the 100 feet must be stream buffer zone rules. For those area’’ could result in the requirements of measured from the ordinary high water situations in which an alternatives this rule being applied to lands mark of the stream, consistent with the analysis is required under section overlying the underground mine Corps of Engineers’ practices for 780.25(d)(1) or 780.35(a)(3), there is no workings because the definition of establishing jurisdictional limits for need to replicate that requirement here. ‘‘adjacent area’’ in 30 CFR 701.5 waters of the United States. Those rules and their preamble already includes areas with ‘‘probable impacts We are adding paragraph (a)(2)(i) to provide guidance for the identification from underground workings.’’ We find specify that sections 780.28 and 784.28 of reasonably possible alternatives and the commenter’s concern to be do not apply to applications under require selection of the alternative with unfounded. The definition of adjacent section 785.21 for permits for coal the least overall adverse impact on fish, area clearly states that the term’s preparation plants not located within wildlife, and related environmental meaning must be determined in the the permit area of a mine. This values. context in which the term is used. provision reflects the fact that we did The U.S. Fish and Wildlife Service Nothing in the context of the final rule not propose any changes to the rules also requested that we work with the that we are adopting today suggests that concerning those preparation plants in Service to build a process into these section 784.28 should or could be sections 785.21 and 827.12 of our sections of the final rule to protect applied to the area overlying regulations and the fact that we do not unique and high value fish and wildlife underground workings, except in the intend for this final rule to alter those resources and to develop design narrow situation in which that area rules with respect to the applicability of standards that would provide greater happens to be coincident with or within the stream buffer zone rules to coal specificity as to how the decision 100 feet of an area upon which there preparation plants not located in the criteria for granting variances from the will be surface activities associated with permit area of a mine. Section 827.12 of stream buffer zone requirements will be the underground mine. our rules does not apply the stream applied. In response, we note that our Final sections 780.28 and 784.28 are buffer zone rule in sections 816.57 and fish and wildlife protection rules at 30 identical with the exception of 817.57 to coal preparation plants not CFR 816.97(f) and 817.97(f) already appropriate modifications to reflect the located within the permit area of a require that the operator ‘‘avoid differences between surface mining and mine. See 48 FR 20399, May 5, 1983. disturbances to, enhance where underground mining. Most significantly, We are adding paragraph (a)(2)(i) practicable, or restore habitats of in section 784.28, the term ‘‘surface because, as part of this final rule, we are unusually high value for fish and mining activities’’ is replaced by moving the permitting aspects of the wildlife.’’ In addition, our permitting language that clarifies that the previous version of the stream buffer rules at 30 CFR 780.16 and 784.21 requirements of that section apply only zone rule in sections 816.57 and 817.57 provide a role for the Service in to surface activities conducted on the to new sections 780.28 and 784.28.

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Existing section 785.21(c) provides that 3. Final Paragraph (b) proposed instead of maintaining a 100- coal preparation plants not located Paragraph (b) of sections 780.28 and foot buffer between surface activities within the permit area of a mine are 784.28 establishes application and the perennial or intermittent subject not only to the special requirements for persons seeking to stream. Finally; the application must permitting requirements of section conduct activities in a perennial or explain how the lesser buffer, together 785.21, but also to ‘‘all other applicable intermittent stream as part of one of the with any other proposed protective requirements of this subchapter.’’ ‘‘This activities listed in paragraphs (b)(2) measures, constitute the best technology subchapter’’ refers to subchapter G of through (b)(4) of section 816.57 or currently available to (1) prevent the chapter VII, which contains the 817.57. Those activities include contribution of additional suspended solids to streamflow or runoff outside permitting requirements for all surface construction of bridge abutments and the permit area to the extent possible, as coal mining and reclamation operations. other stream-crossing structures in required by section 780.21(h) or Thus, to ensure that section 785.21(c) is streams, construction of sedimentation 784.14(g) and section 816.41(d)(1) or not now interpreted as including the pond embankments in streams, and 817.41(d)(1), and (2) minimize newly added permitting requirements construction of excess spoil fills and disturbances and adverse impacts on coal mine waste disposal facilities in related to the stream buffer zone rule, fish, wildlife, and related environmental streams. The application must we are adding the exception in values to the extent possible, as required demonstrate that avoiding disturbance paragraph (a)(2)(i) of sections 780.28 by section 780.16(b) or 784.21(b) and of the stream is not reasonably possible and 784.28. section 816.97(a) or 817.97(a). Final and that the proposed activities will We are also adding paragraph (a)(2)(ii) paragraph (c) is similar to paragraph (c) comply with all applicable requirements to clarify that paragraphs (b) through (e) of the proposed rule except for the first in paragraphs (b) and (c) of section of sections 780.28 and 784.28 do not of these requirements [the one codified 816.57 or 817.57. These requirements, in paragraph (c)(1)], which we added in apply to diversions of perennial or which we have adopted in response to intermittent streams, which are response to comments urging greater comments urging greater protection for protection for headwater streams, as governed by sections 780.29, 784.29, headwater streams, as discussed in Part 816.43, and 817.43. This change reflects discussed in Part VI.D. of this preamble. VI.D. of this preamble, are more specific Paragraph (c)(3) of sections 780.28 the 1983 rules, in which the findings than paragraph (e) of the proposed rule, and substantive requirements applicable and 784.28 refers to certain other OSM which would have required only a rules. Among those rules, sections to the approval of stream-channel demonstration that to the extent 816.41(d) and 817.41(d) require, in diversions were specified primarily in possible, the applicant would use the relevant part, that mining operations the stream-channel diversion rules best technology currently available as prevent, to the extent possible using the rather than the stream buffer zone rules. required by the hydrologic balance best technology currently available, Paragraph (b)(1) of sections 816.43 and protection requirements of 30 CFR additional contribution of suspended 817.43 contains the finding that the 816.41(d) or 817.41(d) and the fish and solids to streamflow outside the permit regulatory authority must make before wildlife protection requirements of 30 area. They implement, in part, the approving a proposed stream-channel CFR 816.97(a) or 817.97(a). sedimentation prevention requirements diversion. See Part VIII.G. of this 4. Final Paragraph (c) of sections 515(b)(10)(B)(i) and preamble for a discussion of the changes 516(b)(9)(B) of SMCRA, respectively. that we are making to the stream- Paragraph (c) of sections 780.28 and Sections 816.97(a) and 817.97(a) channel diversion rules. 784.28 contains application require, in relevant part, that, to the requirements for persons seeking to extent possible using the best 2. Proposed Paragraph (b) conduct surface activities that would technology currently available, the disturb the surface of land within 100 Proposed paragraph (b) would have operator minimize disturbances and feet of a perennial or intermittent required that maps submitted as part of adverse impacts on fish, wildlife, and stream, but that would not take place in the permit application show all waters related environmental values. They the stream itself. This paragraph applies of the United States that are located implement, in part, the fish and wildlife only to activities that will occur on protection requirements of sections either within the proposed permit area lands subject to the buffer requirement or within the adjacent area, as that term 515(b)(24) and 516(b)(11) of SMCRA, of paragraph (a) of sections 816.57 and respectively. Sections 780.21(h) and is defined at 30 CFR 701.5. However, 817.57. It does not apply to activities with our decision not to change the 784.14(g) require that each permit conducted on lands included within the application include a hydrologic scope of the stream buffer zone rule scope of paragraph (b) of sections 816.57 reclamation plan designed to from perennial and intermittent streams and 817.57; i.e., to what would have implement, among other things, the to waters of the United States, there is been the buffer zone for stream requirements of sections 816.41(d) and no longer any need for the proposed segments for which the regulatory 817.41(d), respectively. Sections mapping requirement. The existing authority approves one or more of the 780.16(b) and 784.21(b) require that requirements in sections 779.25(a)(7) activities listed in paragraphs (b)(1) each permit application include a fish and 783.25(a)(7), which require that through (b)(4) of section 816.57 or and wildlife protection and permit application maps show streams, 817.57. enhancement plan designed to lakes, ponds, and springs located within Under paragraph (c), the application implement the requirements of sections the proposed permit and adjacent areas, must demonstrate that avoiding 816.97(a) and 817.97(a), respectively. are adequate in that they require disturbance of land within 100 feet of mapping of all perennial and the stream either is not reasonably 5. Final Paragraph (d) intermittent streams located in or within possible or is not necessary to meet the Paragraph (d)(1) of sections 780.28 100 feet of the permit area. Therefore, fish and wildlife and hydrologic balance and 784.28 provides that before comments opposing the adoption of protection provisions of the regulatory approving any surface activities in a proposed paragraph (b) are now moot program. In addition, the application perennial or intermittent stream, the and will not be discussed further. must identify any lesser buffer that is regulatory authority must find in

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writing that avoiding disturbance of the than maintenance of an undisturbed minimization of disturbances to the stream is not reasonably possible and buffer under paragraph (a) of section quality and quantity (or, in the case of the plans submitted with the 816.57 or 817.57 as a prerequisite for section 516(b)(9), just the quantity) of application meet all applicable approval. water in surface and ground water requirements in paragraphs (b) and (c) Some commenters objected to this systems. However, that language does of section 816.57 or 817.57. The proposed requirement, noting that the not stand alone as an independent findings are the same as the proposed rule did not include a requirement. Instead, when read in its demonstration that the applicant must corresponding requirement for a similar entirety, section 515(b)(10) provides that make in the application under demonstration in the permit the requirement for minimization of paragraph (b) of these sections. These application. They also stated that the disturbances to water quality and findings, which we have adopted in focus of any finding should be on quantity must be achieved by response to comments urging greater whether the buffer and related measures implementation of the measures and protection for headwater streams, as were effective in meeting other techniques described in subparagraphs discussed in Part VI.D. of this preamble, regulatory program requirements, and (A) through (F) of section 515(b)(10). are more specific than the that it would be very difficult to Similarly, section 516(b)(9) provides corresponding provisions of paragraph quantify the theoretical effectiveness of that the requirement for minimization of (e) of the proposed rule, which would a 100-foot buffer compared to a lesser disturbances to water quantity must be have required only that the regulatory buffer on a site-specific basis, as the achieved by implementation of authority find that, to the extent proposed rule would have required. We subparagraphs (A) and (B) of section possible, the applicant will use the best agree. Therefore, we are not including a 516(b)(9). technology currently available as requirement for the proposed finding in In addition, sections 515(b)(10)(B)(i) required by the hydrologic balance the final rule. The replacement finding and 516(b)(9)(B) refer only to the protection requirements of 30 CFR in paragraph (e)(1) of sections 780.28 prevention of additional contributions 816.41(d) or 817.41(d) and the fish and and 784.28 in the final rule has a of suspended solids. Those paragraphs wildlife protection requirements of 30 counterpart in the permit application provide that contributions of suspended CFR 816.97(a) or 817.97(a). requirements of paragraph (c) and solids to streamflow must not be in We are also adopting a new paragraph focuses on whether and how the excess of requirements set by applicable (d)(2) of sections 780.28 and 784.28 in statutory and regulatory requirements to State or Federal law, but they do not response to comments that we received use the best technology currently mention any other water quality on proposed paragraph (f) of those available to prevent additional parameter. Therefore, that provision by sections. Paragraph (d)(2) provides that contributions of suspended solids to itself does not authorize the required before approving a permit application in streamflow or runoff outside the permit finding previously found in paragraph which the applicant proposes to area to the extent possible and to (a)(1) of sections 816.57 and 817.57. conduct surface activities in a perennial minimize disturbances and adverse Furthermore, the SMCRA regulatory or intermittent stream, the regulatory impacts on fish, wildlife, and related authority is not necessarily in the best authority must include a permit environmental values to the extent position to determine whether a condition requiring a demonstration of possible will be met. proposed activity will cause or compliance with the Clean Water Act in The findings required by paragraph contribute to a violation of applicable the manner specified in paragraph (a)(2) (e) of sections 780.28 and 784.28 replace State or Federal water quality standards of sections 816.57 and 817.57 before the the finding that the regulatory authority for any parameter. Those standards and permittee may conduct those activities. had to make under paragraph (a)(1) of parameters are established and This requirement applies to the extent the 1983 version of sections 816.57 and implemented under the authority of the that the activities require authorization 817.57 before authorizing activities that Clean Water Act (33 U.S.C. 1251 et seq.), or certification under the Clean Water would disturb the surface of lands not SMCRA, and are sometimes Act. Please refer to the preamble within 100 feet of a perennial or administered by an agency other than discussion of paragraph (f) for an intermittent stream. The provision that the SMCRA regulatory authority. Under explanation of the rationale for this we are deleting from sections 816.57 30 CFR 780.18(b)(9) and 784.13(b)(9), provision. and 817.57 stated that, before the SMCRA permit application must authorizing an activity closer than 100 include a description of the steps to be 6. Final Paragraph (e) feet to a perennial or intermittent taken to comply with the requirements Paragraph (e) of sections 780.28 and stream, the regulatory authority must of the Clean Air Act (42 U.S.C. 7401 et 784.28 specifies that before approving find that the activity will not cause or seq.), the Clean Water Act (33 U.S.C. any surface activities that would disturb contribute to the violation of applicable 1251 et seq.), and other applicable air the surface of land subject to the buffer State or Federal water quality standards and water quality laws and regulations, requirement of section 816.57(a)(1) or and will not adversely affect the water but there is no requirement that the 817.57(a)(1), the regulatory authority quantity and quality or other SMCRA regulatory authority pass must find in writing that the applicant environmental resources of the stream. judgment on the adequacy of that has made the demonstrations required That requirement has no direct description or on the adequacy of the under paragraph (c) of sections 780.28 counterpart in sections 515(b)(10)(B)(i), steps that the applicant proposes to and 784.28. The final rule is similar to 515(b)(24), 516(b)(9)(B), or 516(b)(11) of take. paragraph (d) of the proposed rule SMCRA, which, as previously As discussed above, sections except that we decided not to adopt the discussed, are the provisions of SMCRA 515(b)(10)(B)(i) and 516(b)(9)(B) of provision in paragraph (d)(1) of the that form the basis for the stream buffer SMCRA provide that ‘‘in no event shall proposed rule that would have zone rule. such contributions [of suspended solids] established a determination by the The introductory language of sections be in excess of requirements set by regulatory authority that the measures 515(b)(10) and 516(b)(9) of SMCRA does applicable State or Federal law.’’ This proposed by the applicant would be no provide that performance standards for language originated in H.R. 2, the House less effective in meeting the surface coal mining operations must of Representatives’ version of the requirements of the regulatory program include a requirement for the legislation that became SMCRA. In

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describing the intent of these provide that surface coal mining enacted pursuant to the Clean Water provisions, the House Committee on operations must be conducted to meet Act, or other Federal laws relating to Interior and Insular Affairs stated: the requirements of those paragraphs preservation of water quality. In In cases where there will be water ‘‘to the extent possible’’ using the ‘‘best addition, our regulations at 30 CFR discharge from the mine sites, the number of technology currently available.’’ The 816.42 and 817.42 require that such discharges should be minimized by appropriate standard under sections discharges of water from disturbed areas collectively controlling and channeling the 515(b)(24) and 516(b)(11) is ‘‘be made in compliance with all watercourse into an acceptable receiving minimization of disturbances and applicable State and Federal water stream or area location. It also should be adverse impacts on fish, wildlife, and quality laws and regulations.’’ understood that prior to any discharge off the related environmental values. While In the preamble to the proposed rule, permit area, the discharge should be treated we sought comment on whether we to remove pollutants that may be present. avoidance is the ultimate form of Such treatment must, at a minimum, meet minimization, there is no statutory basis should amend 30 CFR 816.42 and the requirements of this Act and insure for a rule that requires absolute 817.42, which currently address only compliance with applicable local, State, or avoidance of all adverse effects. Such a discharges of water, to include a Federal water quality requirements. rule would run afoul of the plain paragraph specifying, for informational H. Rep. No. 95–218 at 116 (1977). language of sections 515(b)(24) and purposes, that discharges of dredged or fill materials into waters of the United Nothing in the language of the Act or 516(b)(11) the Act, which requires only States must comply with all applicable the legislative history quoted above minimization of disturbances and State and Federal requirements. mandates retention of the provision that adverse impacts and then only to the Commenters were divided on the merits we are removing from paragraph (a)(1) extent possible using the best of this potential rule change. We have of sections 816.57 and 817.57. The technology currently available. As discussed more fully in Part III.D. decided against adding this provision, statutory provisions are clearly intended both because of the possibility that the to ensure treatment of discharges from of this preamble, the preamble to the 1983 version of the stream buffer zone language might be erroneously the minesite that leave the permit area. interpreted as being enforceable under Those requirements are already rules (‘‘the 1983 preamble’’) recognizes that the protection afforded by those SMCRA rather than as just an addressed by the performance standards informational provision and because at 30 CFR 816.42 and 817.42, which rules need not be absolute. It acknowledges that some adverse adding the language is unlikely to be require that discharges of water from helpful to the regulated community, areas disturbed by surface or impacts on hydrology and fish, wildlife, and related environmental values are which is well aware of the need to underground mining activities ‘‘be made comply with both SMCRA and the in compliance with all applicable State unavoidable because of the nature of surface coal mining operations. various elements of Clean Water Act and Federal water quality laws and regulatory programs. regulations and with the effluent Furthermore, the 1983 preamble states limitations for coal mining promulgated that ‘‘OSM recognizes that some surface 7. Final Paragraph (f) mining activities can be conducted by the U.S. Environmental Protection Paragraph (f) of sections 780.28 and within 100 feet of a perennial or an Agency set forth in 40 CFR Part 434.’’ 784.28 summarizes the relationship intermittent stream without causing Similarly, other existing rules already between SMCRA permitting actions and significant adverse impacts on the cover the permit application phase in Clean Water Act requirements. that the determination of probable hydrologic balance and related Paragraph (f)(1) provides that every hydrologic consequences of the environmental values,’’ thus implying permit application must identify the proposed operation must include that some adverse impacts would occur. authorizations that the applicant findings on what impact the proposed 48 FR 30313, col. 1, June 30, 1983, anticipates will be needed under operation will have on sediment yields emphasis added. Similarly, ‘‘final sections 401, 402, and 404 of the Clean from the disturbed area and certain § 816.57 is intended to protect Water Act, 33 U.S.C. 1341, 1342, and water quality parameters, including significant biological values in streams.’’ 1344, and describe the steps that the suspended solids. See 30 CFR Id., col. 3, emphasis added. And, with permit applicant has taken or will take 780.21(f)(3)(iv) and 784.14(e)(3)(iii). respect to stream diversions, the 1983 to procure those authorizations. This Under 30 CFR 780.21(h) and 784.14(g), preamble specifies that— provision implements, in part, section the hydrologic reclamation plan Alteration of streams may have adverse 508(a)(9) of SMCRA, which requires that submitted with the permit application aquatic and ecological impacts on both each permit application include ‘‘the must include a description of how the diverted stream reaches and other steps to be taken to comply with relevant requirements of 30 CFR part downstream areas with which they merge. applicable air and water quality laws 816 or 817, including the water quality However, final § 816.57(a) will minimize and regulations.’’ these impacts. requirements of section 816.42 or Paragraph (f)(2) of sections 780.28 and 817.42, will be met and the measures to Id. at 30315, col. 1, emphasis added. 784.28 specifies that, if the permit be taken to ‘‘prevent, to the extent Our removal of the requirement application meets all applicable possible using the best technology formerly found in 30 CFR 816.57(a)(1) requirements of subchapter G (the currently available, additional and 817.57(a)(1) for a finding permitting regulations), the regulatory contributions of suspended solids to concerning applicable State or Federal authority will process the permit streamflow.’’ water quality standards does not application and may issue the permit In addition, the absolute nature of the authorize activities that would before the applicant obtains all ‘‘will not adversely affect’’ language constitute or result in a violation of necessary authorizations under the formerly found in paragraph (a)(1) of State or Federal water quality standards. Clean Water Act, 33 U.S.C. 1251 et seq. sections 816.57 and 817.57 is Section 702(a) of SMCRA provides that This arrangement may facilitate review inconsistent with paragraphs nothing in SMCRA may be construed as by the Corps of any preconstruction (b)(10)(B)(i) and (b)(24) of section 515 superseding, amending, modifying, or notification submitted by the permit and paragraphs (b)(9)(B) and (b)(11) of repealing the Clean Water Act, its applicant under Nationwide Permits 21, section 516 of the Act, all of which implementing regulations, State laws 49, and 50. The nationwide permits

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apply only if the SMCRA permit has compliance with the Clean Water Act in D. Section 780.35 Disposal of Excess already been issued or if the application the manner specified in paragraph (a)(2) Spoil (Surface Mines) is being processed as part of an of sections 816.57 and 817.57 before the 1. General Discussion of the Rule and integrated permit processing procedure. permittee may conduct those activities. the Rationale for the Rule Changes See 72 FR 11092, 11184, and 11191, This requirement applies to the extent March 12, 2007. that the activities require authorization The environmental impacts of fills As proposed, paragraph (f)(2) would or certification under the Clean Water and other structures associated with the disposal of excess spoil from surface have provided that the permittee may Act. New paragraph (a)(2) of sections coal mining operations, and of coal not initiate any activities for which 816.57 and 817.57 provides that surface mine waste, have been the subject of Clean Water Act authorization or activities, including those activities certification is required until that controversy, largely because they identified in paragraphs (b)(1) through authorization or certification is involve the filling of substantial (b)(4) of sections 816.57 and 817.57, obtained. The preamble to the proposed portions of stream valleys, especially in rule stated that we considered that may be authorized in perennial or central Appalachia. This controversy provision informational. We requested intermittent streams only where those has highlighted the need to ensure that comment on whether the provision activities would not cause or contribute excess spoil creation is minimized to should remain informational or whether to the violation of applicable State or the extent possible, and that excess we should revise our rules to require its Federal water quality standards spoil and coal mine waste disposal inclusion as a SMCRA permit condition, developed pursuant to the Clean Water facilities are located and designed to which would mean that the prohibition Act, as determined through certification minimize disturbances and adverse on initiation of activities before under section 401 of the Clean Water impacts on fish, wildlife, and related obtaining all necessary Clean Water Act Act or a permit under section 402 or 404 environmental values to the extent authorizations and certifications would of the Clean Water Act. possible, using the best technology be independently enforceable under However, in adopting these rules, we currently available, as required by SMCRA. See 72 FR 48901, August 24, reiterate that nothing in SMCRA sections 515(b)(24) and 516(b)(11) of 2007. provides the SMCRA regulatory SMCRA. Prior to the adoption of this final rule, Commenters were divided on this authority with jurisdiction over the issue. The U.S. Fish and Wildlife our regulations pertaining to the Clean Water Act or the authority to Service and the Geologic and Water disposal of excess spoil primarily determine when a permit or Resources Divisions of the National Park focused on ensuring that fills are safe Service supported adoption of a rule authorization is required under the and stable. This final rule adds several requiring a permit condition under Clean Water Act. Under paragraphs (a) requirements intended to promote SMCRA. The EPA also supported and (a)(2) of section 702 of SMCRA, environmental protection, including adoption of a requirement for a permit nothing in SMCRA (and, by extension, minimization of the adverse condition under SMCRA, stating that regulations adopted under SMCRA) may environmental impacts of fill such a requirement would enhance be construed as superseding, amending, construction in perennial and compliance with Clean Water Act modifying, or repealing the Clean Water intermittent streams. Several requirements. One state regulatory Act or any state laws or state or federal commenters argued that we have no authority opposed adoption of a rules adopted under the Clean Water authority to adopt these regulations requirement for a permit condition; the Act. In addition, nothing in the Clean because section 515(b)(22) of SMCRA, commenter instead recommended that Water Act vests SMCRA regulatory which establishes standards for the coordination of permitting and authorities with the authority to enforce disposal of excess spoil, does not enforcement of Clean Water Act compliance with the permitting and include any requirements for protection requirements be left to the states and the certification requirements of that law. of fish, wildlife, and related Corps. Comments from the mining We have revised proposed paragraph environmental values, but instead focuses on engineering standards industry strongly opposed adoption of a (f)(2) to be consistent with these intended to promote stability, prevent rule that would impose a permit principles. As revised, final paragraph mass movement, and control infiltration condition under SMCRA, expressing the (f)(2) provides that issuance of a SMCRA of water. We do not agree with the fear that it would only result in more permit does not authorize the permittee duplication and confusion in regulation commenters. The rule changes that we to initiate any activities for which Clean of the coal mining industry. One are adopting today implement, in part, Water Act authorization or certification commenter stated that, if the permittee the requirement in section 515(b)(24) of is required. The final rule further states needs to comply with the Clean Water SMCRA that surface coal mining and Act, then the requirements of that that ‘‘[i]nformation submitted and reclamation operations be conducted in statute should be enforced according to analyses conducted under subchapter G a manner that minimizes disturbances the statutory scheme specified in the of this chapter may inform the agency to, and adverse impacts on, fish, Clean Water Act. responsible for authorizations and wildlife, and related environmental In response to the comments certifications under sections 401, 402, values to the extent possible, using the supporting adoption of a rule requiring and 404 of the Clean Water Act, 33 best technology currently available. imposition of a permit condition, we are U.S.C. 1341, 1342, and 1344, but they Section 515(b)(24) applies to the adding a new paragraph (d)(2) to are not a substitute for the reviews, disposal of excess spoil both by its own sections 780.28 and 784.28. That authorizations, and certifications terms (disposal of excess spoil is a part paragraph provides that before required under those sections of the of surface coal mining and reclamation approving a permit application in which Clean Water Act.’’ Paragraph (f)(2) does operations) and through section the applicant proposes to conduct not impose any new requirements under 515(b)(22)(I), which requires that the surface activities in a perennial or SMCRA, nor does it authorize the placement of excess spoil meet ‘‘all intermittent stream, the regulatory regulatory authority to make any other provisions of this Act.’’ SMCRA authority must include a permit determinations required under the contains numerous environmental condition requiring a demonstration of Clean Water Act. protection requirements that apply to all

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surface coal mining and reclamation angles defined as steep slopes, the box cut or reclamation operations be conducted in operations and all aspects of those first cut spoil must be handled as excess a manner that minimizes disturbances operations, including the disposal of spoil in accordance with §§ 816.71 and and adverse impacts on fish, wildlife, excess spoil. The fact that section 817.71. and related environmental values to the 515(b)(22) does not mention 48 FR 32911 (July 19, 1983). extent possible, using the best environmental protection in no way Paragraph (a)(1) of section 780.35 of technology currently available. suggests that excess spoil fills need not the final rule requires that surface coal The addition of these requirements to comply with the environmental mining operations be designed to our rules is consistent with section protection provisions of SMCRA or that minimize the creation of excess spoil to 102(d) of SMCRA, which provides that we lack the authority to adopt the extent possible. Paragraph (a)(2) of one of the purposes of SMCRA is to regulations establishing environmental section 780.35 of the final rule specifies assure that surface coal mining protection requirements for those that the maximum cumulative design operations are conducted so as to structures. volume of all proposed excess spoil fills protect the environment. In addition, One commenter stated that we should within the permit area must be no larger the rules are consistent with section limit the applicability of the new than the capacity needed to 102(f) of SMCRA, which provides that regulations governing excess spoil accommodate the anticipated another purpose of SMCRA is to strike placement to operations in steep-slope cumulative volume of excess spoil that a balance between protection of the areas where the spoil will be placed in the operation will generate. These environment and the nation’s need for stream channels. The commenter also requirements should reduce the adverse coal as an essential energy source. The stated that the generation and disposal impacts of the operation on fish, rule changes that we are adopting today of excess spoil as part of non-steep slope wildlife, and related environmental discourage the disturbance of perennial operations has never been identified as values by minimizing the amount of and intermittent streams and their a significant issue and that we have not land and water disturbed to construct buffers, but they also recognize that it is provided any significant justification in excess spoil fills. not reasonably possible to do so in all the rulemaking record to support a need Paragraph (a)(3) of section 780.35 of cases for all types of surface coal mining for applying the excess spoil rule to the final rule requires that the permit operations. For example, if the creation application include an analysis of the non-steep-slope operations. We of excess spoil as part of a surface coal impacts on fish, wildlife, and related disagree. We believe that these changes mining operation is unavoidable, the environmental values of a reasonable to our rules have merit wherever the final rule would not prevent range of alternatives for disposal of potential exists for operations to construction of the fills needed to excess spoil, including variations in the generate excess spoil and that they accommodate the excess spoil. Instead, number, size, location, and should apply nationwide. Streams in our new and revised rules are intended configuration of proposed fills. Only non-steep-slope areas are no less to ensure that surface coal mining and reasonably possible alternatives that significant in terms of fish, wildlife, and reclamation operations are planned and differ significantly in their impacts on related environmental values than are conducted in a manner that minimizes fish, wildlife, and related environmental streams in steep-slope areas. Excess adverse environmental impacts from the values need be considered. The analysis construction of fills for the disposal of spoil fills outside central Appalachia are must consider impacts on both rare but they do occur. excess spoil to the extent that it is terrestrial and aquatic ecosystems. In possible to do so without restricting coal Several commenters requested that addition, when construction of the the preamble clarify that the term production in a manner inconsistent excess spoil fill would involve with SMCRA in general and sections ‘‘excess spoil’’ does not include initial placement of excess spoil in perennial box cut spoil from the first cut in an area 816.59 and 817.59 of our regulations in or intermittent streams, the rule particular. Section 201(c)(2) of SMCRA, mine, even though it will be placed specifies certain factors that must be outside the mined area. Nothing in this 30 U.S.C. 1211(c)(2), which directs the considered as part of the evaluation of Secretary of the Interior to publish and final rule alters the definition of ‘‘excess impacts on fish, wildlife, and related spoil’’ or how that term is applied or promulgate such rules and regulations environmental values to ensure as may be necessary to carry out the interpreted. As defined in section 701.5, adequate assessment of impacts on purposes and provisions of SMCRA, the term ‘‘excess spoil’’ means— water quality and aquatic ecosystems, provides additional authority for the Spoil material disposed of in a location which are among the ‘‘related adoption of these rules. other than the mined out area; provided that environmental values’’ mentioned in One state regulatory authority stated spoil material used to achieve the sections 515(b)(24) and 516(b)(11) of that trying to balance the fill approximate original contour or to blend the SMCRA. The applicant must select the minimization requirements of mined-out area with the surrounding terrain alternative with the least overall adverse in accordance with §§ 816.102(d) and paragraphs (a)(1) and (2) with the 817.102(d) of this chapter in non-steep slope impact on fish, wildlife, and related alternatives analysis and alternative areas shall not be considered excess spoil. environmental values, including selection requirements of paragraph adverse impacts on water quality and (a)(3) will be extremely difficult. The preamble to the definition of aquatic and terrestrial ecosystems. According to the commenter, the best ‘‘excess spoil’’ states that— We are adopting these rules to location to place excess spoil to In the final rule, spoil used to merely blend improve the analysis of permit minimize the footprint of the fill is not the mined-out area with the surrounding applications and permitting decisions likely to be the best location terrain need not be treated as excess spoil. under SMCRA. SMCRA itself does not environmentally. The commenter Thus, spoil from box cuts or first cuts in non- require an analysis of alternatives. suggested that guidance may be needed steep slope areas would not be excess spoil However, we believe that the when it is used to achieve approximate to address this potential conflict. original contour; i.e., to blend the mined-out alternatives analysis requirement is a We do not agree that the requirements area into the surrounding terrain according to reasonable means of implementing of these paragraphs are in conflict. § 816.102(d) of the backfilling and grading sections 515(b)(24) and 516(b)(11) of Paragraph (a)(1) requires that the rules. * * * If, however, the spoil from a box SMCRA. Those provisions of the Act volume of excess spoil created by the cut or a first cut is deposited on slopes with require that surface coal mining and operation be minimized by returning as

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much of the spoil as possible to the regulatory authority does not approve approximate original contour mined-out area, after taking into the proposed postmining land use, the determinations to correct these consideration applicable regulations applicant and the regulatory authority problems to the extent feasible under concerning final contours, safety, will need to revisit the demonstration to the existing regulations. We also stability, environmental protection, and determine whether it must be revised to developed guidance for use under the the postmining land use. Paragraph reflect the needs and attributes of the Tennessee Federal regulatory program. (a)(2) requires that the operation be postmining land use that is finally In most cases, the regulatory authorities designed so that the maximum approved. in those states have adopted policies cumulative volume of all planned Paragraph (a)(2) of section 780.35 based on that guidance for use in excess spoil fills does not exceed the requires that the application include a reviewing permit applications. capacity needed to accommodate the demonstration that the designed Some industry commenters opposed anticipate cumulative volume of excess maximum cumulative volume of all the new excess spoil minimization spoil that the proposed operation will proposed excess spoil fills within the requirements, citing the preceding generate. Nothing in these two permit area is no larger than the discussion as evidence that the policies paragraphs in any way contradicts the capacity needed to accommodate the appear to be satisfactorily addressing provision in paragraph (a)(3) requiring anticipated cumulative volume of any past issues and that there is no selection of the alternative with least excess spoil that the operation will longer any problem that would justify overall adverse impact on fish, wildlife, generate. rulemaking. Other industry commenters and related environmental values. The goal of both paragraphs (a)(1) and supported these provisions to the extent As proposed, this final rule (a)(2) is to minimize fill footprints and that they codify policies that are consolidates most fill design and thus minimize disturbances of forests, working in the central Appalachian permitting requirements in the permit perennial and intermittent streams, and states. application regulations in sections riparian vegetation, consistent with the We believe that adoption of proposed 780.35 and 784.19, rather than splitting requirement in sections 515(b)(24) and paragraphs (a)(1) and (a)(2) as final rules them between those regulations and the 516(b)(11) of SMCRA to minimize is appropriate because policies are performance standards in sections disturbances and adverse impacts on subject to change. The final rules that 816.71 and 817.71, as they were before fish, wildlife, and related environmental we are adopting today reinforce the the adoption of this rule. Also, as values to the extent possible using the basis for the policies in place in proposed, the final rule revises the rule best technology currently available. Kentucky, Tennessee, Virginia, and language to remove inconsistencies Since the mid-1990’s, the extent of West Virginia. They also strengthen the between the performance standards and excess spoil fill construction in central enforceability of decisions based on the permitting requirements, to Appalachia has been controversial, those policies and provide national eliminate redundancies, and to be more especially when fills bury stream consistency by ensuring that certain consistent with plain language segments. As part of our oversight basic requirements will be applied principles. activities, we conducted studies in 1999 nationwide, including in those states The final rule adds paragraphs (a)(1) in Kentucky, Virginia, and West that have not adopted policies. We also through (a)(4) to section 780.35 to Virginia to determine how state believe that the environment, the establish environmentally-oriented regulatory authorities were public, and the regulated community requirements for permit applications for administering SMCRA regulatory are best served by the adoption of operations that propose to generate programs regarding restoration of national regulations to clarify excess spoil. In the remainder of this approximate original contour. From our environmental considerations part of the preamble, we discuss those review of permit files and reclaimed concerning the generation and disposal and other provisions of the final rule mines, we determined that, typically, of excess spoil. and the comments received on their some of the spoil placed in excess spoil counterparts in the proposed rule. fills could have been retained on or 3. Final Paragraph (a)(3) returned to mined-out areas. See ‘‘An As proposed, paragraph (a)(3) of 2. Final Paragraphs (a)(1) and (a)(2) Evaluation of Approximate Original section 780.35 would have required that Paragraph (a)(1) of section 780.35 Contour and Postmining Land Use in each application include a description provides that each application for an Kentucky’’ (OSM, September 1999); ‘‘An of all excess spoil disposal alternatives operation that would generate excess Evaluation of Approximate Original considered and an analysis of the spoil must include a demonstration, Contour Variances and Postmining Land environmental impacts of those prepared to the satisfaction of the Uses in Virginia’’ (OSM, September alternatives. In the final rule, we regulatory authority, that the operation 1999); and ‘‘Final Report: An Evaluation extensively revised and reorganized has been designed to minimize the of Approximate Original Contour and paragraph (a)(3) in response to the many volume of excess spoil to the extent Postmining Land Use in West Virginia’’ comments that we received on this possible, thus ensuring that as much (OSM, May 1999). portion of the proposed rule. spoil as possible is returned to the In many instances, we found that the mined-out area. The demonstration permit application overestimated the Discussion of General Comments must take into consideration applicable anticipated volume of excess spoil that Received on Proposed Paragraph (a)(3) regulations concerning restoration of the the operation would produce. In Industry commenters strongly approximate original contour, safety, addition, fills were designed and opposed the requirement in proposed stability, and environmental protection constructed larger than necessary to paragraph (a)(3) for an analysis of and the needs of the proposed accommodate the anticipated excess alternatives for excess spoil fills. The postmining land use. Some or all of spoil, which resulted in the unnecessary commenters cited a variety of reasons, those factors may limit the amount of disturbance of additional land. including excessive costs, delays in spoil that can be returned to the mined- Kentucky, Virginia, and West Virginia permitting, duplication of effort with out area, especially the requirements worked with us to develop enhanced the Clean Water Act, the probable lack related to safety, stability, and guidance on material balance of environmental benefits, the potential postmining land use. Also, if the determinations, spoil management, and for conflict between the SMCRA

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regulatory authority’s application of the place excess spoil only within 100 feet SMCRA and the Clean Water Act alternatives analysis requirement and of those streams. provide for separate regulatory programs the approach adopted by the Clean One commenter stated that the rule with different purposes and very Water Act permitting authority, a lack of should not require an alternatives different permitting requirements and justification under SMCRA, exceeding analysis when the permit applicant procedures. In addition, as other the intent of SMCRA, and a fear that this proposes to use excess spoil to reclaim commenters noted, SMCRA and the requirement could result in a never- benches and highwalls on abandoned Clean Water Act differ considerably ending cycle of analysis and litigation mine lands. Alternatively, the with respect to jurisdiction. The Clean concerning whether the correct commenter suggested that any Water Act focuses on regulating alternative was selected by the permit reasonably possible alternative that discharges of pollutants into waters of applicant and approved by the state consisted solely of placement on the United States, whereas SMCRA regulatory authority. Many commenters abandoned mine benches should be regulates a broad universe of stated that the requirement for an deemed the alternative with the least environmental and other impacts of overall adverse environmental impact. alternatives analysis has no basis in surface coal mining and reclamation We interpret these comments as SMCRA and instead appears to be a operations, including impacts on water referring to excess spoil fills constructed mixture of provisions borrowed from quantity, water quality, and terrestrial on preexisting benches under 30 CFR and aquatic ecosystems. We encourage the National Environmental Policy Act 816.74 and 817.74. We encourage the and the Clean Water Act. coordination and cooperation between use of excess spoil to reclaim the SMCRA regulatory authority and the Nothing in the proposed alternatives abandoned mine lands, but we do not agencies administering the Clean Water analysis requirement in paragraph (a)(3) agree that applications proposing to use Act. See the memorandum of of sections 780.35 and 784.19 of the excess spoil for that purpose should be understanding entitled ‘‘Memorandum final rule is based upon the National exempt from compliance with the of Understanding among the U.S. Army Environmental Policy Act. We alternatives analysis requirements of Corps of Engineers, the U.S. Office of respectfully disagree with those paragraph (a)(3). Perennial and Surface Mining, the U.S. Environmental commenters who argued that the intermittent streams merit special Protection Agency, and the U.S. Fish requirement for an alternatives analysis consideration regardless of whether and Wildlife Service for the Purpose of is a Clean Water Act requirement that those streams flow through undisturbed Providing Concurrent and Coordinated has no basis or justification under land or abandoned mine lands. Also, Review and Processing of Surface Coal SMCRA and that exceeds the intent of abandoned mine lands vary widely in Mining Applications Proposing SMCRA. We acknowledge that we quality, so we do not agree that an Placement of Dredged and/or Fill derived this element of our proposed alternative proposing to place excess Material in Waters of the United States,’’ rules from the alternatives analysis spoil only on abandoned mine lands which took effect February 8, 2005, and requirements of the 404(b)(1) Guidelines should be deemed the alternative with the provisions of this final rule that in 40 CFR part 230, which include the the least overall adverse impact on fish, authorize the SMCRA regulatory substantive environmental criteria used wildlife, and related environmental authority to accept an analysis of in evaluating activities regulated under values. However, the alternatives alternatives completed for Clean Water section 404 of the Clean Water Act. analysis requirement applies only if the Act purposes as meeting the However, we concluded that a modified applicant proposes to place excess spoil requirements for an analysis of in or within 100 feet of a perennial or version of the alternatives analysis alternatives under this final rule, when intermittent stream. When constructing requirements in the 404(b)(1) Guidelines and to the extent appropriate. However, fills on preexisting benches, there is a is an appropriate means of obtaining the we believe that maintaining the distinct possibility that the requirement background data and analyses that both distinction between the SMCRA will not apply at all because there may the applicant and the regulatory regulatory program and Clean Water Act be no perennial or intermittent streams authority need to make informed programs is both administratively and within 100 feet of the benches. decisions concerning compliance with A few commenters criticized the legally appropriate. That conclusion is the requirements of sections 515(b)(24) analysis of alternatives provisions of the supported by the comments that we and 516(b)(11) of SMCRA, which proposed rule because they did not received from both industry and state provide that surface coal mining and completely parallel the requirements of regulatory authorities. reclamation operations must be the 404(b)(1) Guidelines in 40 CFR part Many industry commenters, conducted to minimize disturbances 230. At least one commenter supported by some, but not all, state and adverse impacts on fish, wildlife, recommended that we incorporate the regulatory authority commenters, stated and related environmental values to the 404(b)(1) Guidelines by reference. We that the proposed alternatives analysis extent possible, using the best do not find this recommendation requirement would introduce a major technology currently available. appropriate because the 404(b)(1) new element of uncertainty, and result Therefore, paragraphs (a)(3)(ii) and Guidelines are designed to implement in costly and wasteful duplication of (a)(3)(iii) of sections 780.35 and 784.19 the Clean Water Act, while our effort on the part of permit applicants of this final rule apply the alternatives regulations implement SMCRA and and state regulatory authorities. The analysis requirement to all applications must be based upon SMCRA commenters stated that this element of that propose to place excess spoil in or requirements. Under section 702(a) of our proposed rule was inconsistent with within 100 feet of a perennial or SMCRA, nothing in SMCRA may be our statement in the preamble to that intermittent stream. In addition, construed as amending, modifying, rule that a primary reason for the paragraph (a)(3)(iii)(A) of these sections repealing, or superseding any Clean rulemaking was to provide improved of the final rule applies more detailed Water Act requirement. However, there clarity and reduction of uncertainty analytical requirements to applications is also nothing in SMCRA that would regarding the meaning of the that propose to place excess spoil in compel or authorize us to adopt regulations. One commenter stated that perennial or intermittent streams as regulations that parallel or incorporate at best the alternatives analysis opposed to applications that propose to Clean Water Act requirements. requirement ‘‘adds yet another layer of

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redundant paperwork and analysis as it alternatives under this final rule, when and contribution to the function of the duplicates the federally-administered and to the extent appropriate. stream as a whole. In effect, the new 404 process. At worst, OSM has set the The Commission and some, but not sentence identifies avoiding placement stage for conflicts between the section all, commenters representing individual of excess spoil in or within 100 feet of 404 program and the largely state- state regulatory authorities also opposed perennial or intermittent streams as the implemented SMCRA programs.’’ The the alternatives analysis requirement in preferred method of complying with the commenter further stated that by the proposed rule because of state fiscal SMCRA requirement to minimize imposing an alternatives analysis constraints and fear of the ‘‘potentially disturbances and adverse impacts on requirement on state regulatory overwhelming’’ time and effort that fish, wildlife, and related environmental authorities, we are ‘‘flirting would be required for state permitting values with respect to those streams. dangerously’’ with creating conflicting personnel to adequately review and That is, whenever avoidance of alternatives analyses because ‘‘the goals analyze alternatives. disturbance is reasonably possible, the and objectives of SMCRA and We anticipate that few, if any, state final rule establishes avoidance as the corresponding state statutes may be regulatory authorities will experience a best technology currently available to different than those of the Corps and significant increase in demands on their comply with the provisions of sections EPA under section 404.’’ resources as a result of the alternatives 515(b)(24) and 516(b)(11) of SMCRA, While we understand the analysis requirement in the final rule. which require minimization of commenters’ apprehensions, these West Virginia, one of the states most disturbances and adverse impacts on comments are speculative in nature. impacted by the rule, supported the fish, wildlife, and related environmental There may be some initial uncertainty proposed rule. Kentucky, another state values to the extent possible using the as regulatory authorities establish that would be significantly impacted, best technology currently available. This estimated that, on average, the new procedures and criteria for provision of the final rule is consistent requirement would add ten hours to the implementing the alternative analysis with our stream buffer zone rules at 30 time required to process a permit requirements and determining least CFR 816.57 and 817.57, which establish application. We believe that the overall adverse impact on fish, wildlife, maintenance of an undisturbed buffer intangible environmental benefits of the and related environmental values under for perennial and intermittent streams rule (increased scrutiny of efforts to this rule, but that uncertainty should as the best technology currently minimize adverse impacts on fish, subside once those procedures and available to meet the requirements of wildlife, and related environmental criteria are in place. sections 515(b)(24) and 516(b)(11) of values associated with perennial and SMCRA, provided maintenance of an The Interstate Mining Compact intermittent streams) will outweigh Commission, writing on behalf of undisturbed buffer is reasonably what we anticipate will be a modest possible. member state regulatory authorities, increase in demand on state regulatory argued that the alternatives analysis authority resources. However, the final rule does not and requirement is duplicative of The U.S. Fish and Wildlife Service cannot mandate avoidance in all cases requirements under the Clean Water Act requested that we work with the Service for all stream segments. The provisions that are already encompassed by the to build a process into the alternative of SMCRA underlying this rule require SMCRA permitting scheme. As analysis requirements in the final rule to minimization of disturbances and discussed elsewhere in this preamble, protect unique and high value fish and adverse impacts on fish, wildlife, and we believe that the alternatives analysis wildlife resources. In response, we note related environmental values only ‘‘to requirement that we are adopting as part that our fish and wildlife protection the extent possible.’’ Avoiding of this final rule differs from and serves rules at 30 CFR 816.97(f) and 817.97(f) disturbance of the stream and a somewhat different purpose than the already require that the operator ‘‘avoid maintenance of an undisturbed buffer alternatives analysis requirement under disturbances to, enhance where zone for that stream is the ultimate the regulations and other documents practicable, or restore habitats of means of minimizing adverse impacts implementing section 404 of the Clean unusually high value for fish and on fish, wildlife, and related Water Act. To the extent that wildlife.’’ In addition, our permitting environmental values and hence is the duplication may exist, we encourage rules at 30 CFR 780.16 and 784.21 default best technology currently states to coordinate the processing of provide a role for the Service in available to comply with the statutory coal mining permit applications with determining fish and wildlife data minimization requirement. However, the U.S. Army Corps of Engineers in collection requirements and reviewing there is sometimes no alternative to the accordance with a memorandum of the fish and wildlife protection plan in construction of excess spoil fills in understanding entitled ‘‘Memorandum the permit application. Therefore, perennial or intermittent streams and of Understanding among the U.S. Army addition of the provision requested by their buffer zones if the proposed Corps of Engineers, the U.S. Office of the Service is not necessary. surface coal mining operation is to be Surface Mining, the U.S. Environmental viable. Prohibiting the construction of Protection Agency, and the U.S. Fish Discussion of Specific Provisions of excess spoil fills would in effect and Wildlife Service for the Purpose of Final Paragraph (a)(3) preclude coal recovery in those Providing Concurrent and Coordinated In the final rule, the first sentence of situations. Under those circumstances, Review and Processing of Surface Coal paragraph (a)(3) provides that the permit SMCRA—and hence this final rule—do Mining Applications Proposing applicant must design the operation to not require avoidance of disturbance Placement of Dredged and/or Fill avoid placement of excess spoil in or because avoidance is not reasonably Material in Waters of the United States,’’ within 100 feet of perennial and possible. Instead, the applicant must which took effect February 8, 2005. In intermittent streams to the extent propose other methods of complying addition, this final rule authorizes the possible. We added this provision in with the minimization requirement that SMCRA regulatory authority to accept response to EPA concerns and are consistent with the proposed surface an analysis of alternatives completed for numerous comments urging greater coal mining operations. We do not Clean Water Act purposes as meeting protection for headwater streams interpret SMCRA as authorizing us to the requirements for an analysis of because of their ecological importance prohibit surface coal mining operations

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in situations other than those that have no possibility of being principle is consistent with the phrase specifically set forth in the Act. implemented. In response to this ‘‘to the extent possible’’ in sections However, SMCRA does not override concern, we have added language 515(b)(24) and 516(b)(11) of SMCRA. prohibitions that apply under other laws clarifying that paragraph (a)(3)(ii) does See Part VI.D. of this preamble for a and regulations, so we will also not require identification of all potential more extensive discussion of the recognize those prohibitions in reaching alternatives and that only those rationale for our use of the term a decision on a permit application. reasonably possible alternatives that are ‘‘reasonably possible’’ and its As proposed, paragraph (a)(3) would likely to differ significantly in terms of consistency with statutory provisions. have required an alternatives analysis impacts on fish, wildlife, and related The final rule does not include the for all operations that propose to environmental values (either in degree provision in paragraph (a)(3)(iii) of the generate excess spoil. In response to or in watersheds affected) need be proposed rule stating that the least comments citing the probable lack of identified and considered. The latter costly alternative may not be selected at environmental benefits of the proposed provision is consistent with the policies the expense of environmental protection alternatives analysis requirement and to which EPA and the Corps adhere in solely on the basis of cost. One the burden that it would impose, we implementing section 404 of the Clean commenter objected to the proposed have reconsidered this requirement and Water Act. See the EPA/COE provision as being too extreme and paragraph (a)(3) of the final rule restricts memorandum entitled ‘‘Appropriate subject to misinterpretation, noting that the alternatives analysis requirement to Level of Analysis Required for there may be situations in which cost those situations in which the applicant Evaluating Compliance with the Section could and should be the determining proposes to place excess spoil in or 404(b)(1) Guidelines Alternatives factor. We agree. Nothing in SMCRA within 100 feet of a perennial or Requirements.’’ would compel adoption of this intermittent stream. We believe that this In response to commenters’ concerns, provision. In lieu of this provision, we restriction is appropriate because those we also added language to paragraph have added language to paragraph lands are likely to be the most (a)(3)(ii) of the final rule specifying that (a)(3)(ii)(B) of the final rule clarifying significant in terms of fish, wildlife, and an alternative is reasonably possible if it that the fact that one alternative may related environmental values. In conforms to the safety, engineering, cost somewhat more than a different addition, this limitation may facilitate design, and construction requirements alternative does not necessarily warrant coordination with permitting of the regulatory program; is capable of exclusion of the more costly alternative requirements under section 404 of the being done after consideration of cost, from consideration. We believe that the Clean Water Act, which apply whenever logistics, and available technology; and revised language is more consistent with a permit applicant proposes to place fill is consistent with the coal recovery sections 515(b)(24) and 516(b)(11) of material in waters of the United States. provisions of sections 816.59 and SMCRA, which require use of the best Paragraph (a)(3)(i) of the final rule 817.59. In other words, nothing in the technology currently available, but only requires that the permit applicant rule should be construed as elevating to the extent possible. explain, to the satisfaction of the environmental concerns over safety Paragraph (a)(3)(iii) of the final rule regulatory authority, why an alternative considerations, as prohibiting the provides that any application proposing that does not involve placement of conduct of surface coal mining to place excess spoil in or within 100 excess spoil in or within 100 feet of a operations that are not otherwise feet of a perennial or intermittent stream perennial or intermittent stream is not prohibited under SMCRA or other laws must include an analysis of the impacts reasonably possible. We added this or regulations, or as requiring of the alternatives identified in requirement to reinforce the provision consideration of unreasonably paragraph (a)(3)(ii) on fish, wildlife, and in paragraph (a)(3) of the final rule expensive or technologically infeasible related environmental values. The establishing avoidance of placement of alternatives. analysis must consider impacts on both excess spoil in or within 100 feet of a The portion of this rule that refers to terrestrial and aquatic ecosystems. For perennial or intermittent stream, ‘‘consideration of cost, logistics, and example, depending on the topography whenever avoidance is reasonably available technology’’ is derived from and geology of the area, the analysis possible, as the best technology the EPA regulations at 40 CFR could compare the impacts of currently available to comply with the 230.10(a)(2), which define a practicable constructing a few large excess spoil statutory requirement for minimization alternative for purposes of section 404 fills versus a greater number of small of disturbances and adverse impacts on of the Clean Water Act. In interpreting fills, as well as the relative impacts of fish, wildlife, and related environmental this provision, the EPA/COE concentrating fills in one or a few values to the extent possible using the memorandum entitled ‘‘Appropriate watersheds as opposed to placing them best technology currently available. Level of Analysis Required for in multiple watersheds. In addition, the Paragraph (a)(3)(ii) of the final rule Evaluating Compliance with the Section quality of the receiving waters must be provides that, if the permit applicant is 404(b)(1) Guidelines Alternatives taken into consideration in that it may unable to design the operation to avoid Requirements’’ states that ‘‘[t]he be environmentally preferable to placement of excess spoil in or within determination of what constitutes an concentrate fills and their impacts in 100 feet of a perennial or intermittent unreasonable expense should generally watersheds with the lowest water stream, the application must identify a consider whether the projected cost is quality, to the extent that it is possible reasonable range of alternatives that substantially greater than the costs to do so. vary with respect to the number, size, normally associated with this particular Paragraph (a)(3)(iii)(A) of the final location, and configuration of proposed type of project.’’ We have included rule provides that, for every alternative excess spoil fills. A number of similar language in paragraph that proposes placement of excess spoil commenters on the proposed rule (a)(3)(ii)(B) of the final rule because (1) in a perennial or intermittent stream, expressed concern that the requirement the concept of a practicable alternative the analysis must include an evaluation to identify a reasonable range of for purposes of section 404 of the Clean of impacts on the physical, chemical, alternatives was too vague and could be Water Act is in some ways analogous to and biological characteristics of the interpreted as requiring an unlimited the determination of reasonably possible stream downstream of the proposed fill, number of alternatives, including those alternatives under this rule, and (2) the including seasonal variations in

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temperature and volume, changes in alternative on the aquatic ecosystem, Water Act analysis of alternatives as stream turbidity or sedimentation, the both individually and on a cumulative fully meeting the requirements of this degree to which the excess spoil may basis. This proposed requirement is rule. We do not believe that addition of introduce or increase contaminants, and subsumed within the other analytical this requirement to our rules would be the effects on aquatic organisms and the requirements of the final rule and would appropriate because the alternatives wildlife that is dependent upon the not likely result in the submission of analysis required under the final rule stream. As discussed below, this any meaningful additional information. must address all environmental impacts paragraph of the final rule includes a However, we did not make further (both aquatic and terrestrial) of surface number of changes from the proposed changes in response to this comment coal mining and reclamation operations, rule as a result of the comments that we because the commenter did not explain whereas the analysis of alternatives received on the proposed rule. how the requirements should be required under Clean Water Act One commenter on a virtually subdivided for clarity or why or how regulations focuses on impacts to waters identical provision in the proposed coal they create ambiguity. With respect to of the United States. However, under mine waste disposal rules stated that— the commenter’s statement that the the final rule, the SMCRA regulatory assessments required by this rule will be [T]he components of an alternatives authority has the discretion to analysis for a coal mine disposal activity, as impossible to validate in the absence of determine that an analysis of set forth in proposed 30 CFR 784.16(d)(1)(ii), commonly recognized guidelines, we alternatives conducted for Clean Water should be subdivided for clarity and certain believe that the commenter may have Act purposes satisfies the requirements of the components should be reconsidered in misunderstood the purpose of the for an analysis of alternatives under this terms of their purpose or value. As written, evaluation required by this rule. The final rule, in whole or in part, as 30 CFR 784.16(d)(1)(ii) requires ‘‘* * * an data and analyses required by this rule appropriate. evaluation of short-term and long-term are intended only to facilitate Paragraph (a)(3)(iv) of the final rule impacts on the aquatic ecosystem, both comparisons of the relative impacts of requires selection of the alternative with individually and on a cumulative basis’’ and various alternatives on fish, wildlife, the least overall adverse impact on fish, goes on to specify that the evaluation ‘‘must and related environmental values, not to consider impacts on the physical, chemical, wildlife, and related environmental establish reclamation standards. To the and biological characteristics of downstream values, including adverse impacts on extent that the commenter may have flow, including seasonal variations in water quality and aquatic and terrestrial meant that there are no generally temperature and volume, changes in stream ecosystems, to the extent possible. The accepted protocols for evaluating some turbidity or sedimentation, the degree to proposed rule included an additional which the coal mine waste may introduce or of the listed characteristics, we believe sentence specifying that if the applicant increase contaminants, the effects on aquatic that regulatory authorities have the organisms and the extent to which wildlife technical capability to develop any proposes to select a different alternative, is dependent upon those organisms.’’ As needed protocols specific to conditions the applicant must demonstrate, to the strung together, these requirements create a within their states. satisfaction of the regulatory authority, number of ambiguities, which will lead to One state regulatory authority urged why implementation of the more problems in interpretation. The list also us to revise the rule to include environmentally protective alternative includes terms that have no recognized is not possible. The final rule does not meaning, such as ‘‘biological characteristics consideration of impacts such as traffic, dust and noise on local residents who include this sentence because we have of downstream flows.’’ In addition to these determined that it is neither needed nor ambiguities, this section also requires may be affected by a proposed assessments that are new to the regulation of operation. While we encourage permit appropriate in view of the other changes mining activities, including assessments of applicants to consider these factors in that we have made to the rule. the effects of turbidity and of secondary designing their operations, we do not Specifically, we have added language to impacts on wildlife that may be dependent consider them to be disturbances or paragraph (a)(3)(ii) of the final rule on aquatic organisms in a potentially affected adverse impacts on fish, wildlife, and limiting the alternatives that the water body. In the absence of commonly related environmental values within the applicant must identify to only those recognized guidelines, the results of these context of sections 515(b)(24) and alternatives that are reasonably possible. assessments will be virtually impossible to In addition, we have added paragraph validate. 516(b)(11) of SMCRA. Therefore, we are not including those factors as required (a)(3)(i), which requires that the permit We have revised the rule to replace components of the alternatives analysis applicant explain, to the satisfaction of the potentially confusing phrase under paragraph (a)(3)(iii) of the final the regulatory authority, why an ‘‘biological characteristics of rule. alternative that does not involve downstream flows’’ with clearer Paragraph (a)(3)(iii)(B) of the final rule placement of excess spoil in or within language requiring information on the allows the applicant to submit an 100 feet of a perennial or intermittent biological characteristics of the stream analysis of alternatives prepared under stream is not reasonably possible. The downstream of the proposed excess 40 CFR 230.10 for Clean Water Act combination of these two changes spoil fill. See paragraph (a)(3)(iii)(A) of purposes in lieu of the analysis of means that the sentence in the proposed final sections 780.35 and 784.19. We impacts on fish, wildlife, and related rule is no longer logical or appropriate also replaced the requirement for an environmental values required under because the only alternatives considered evaluation of the extent to which paragraph (a)(3)(iii)(A) of the final rule. under the final rule are those that are wildlife is dependent upon aquatic The regulatory authority will determine reasonably possible, which means that, organisms with a requirement for an the extent to which that analysis within the universe of reasonably evaluation of the effects of the proposed satisfies the requirements of paragraph possible alternatives identified, the operation on wildlife that is dependent (a)(3)(iii)(A) of the final rule. These applicant must select the alternative upon the stream. provisions of the final rule are similar with the least overall adverse impact on In addition, we decided not to adopt to their counterparts in the proposed fish, wildlife, and related environmental the portion of proposed paragraph rule. values. In other words, the sentence in (a)(3)(ii) requiring that the analysis One commenter expressed dismay the proposed rule no longer has any include an evaluation of the short-term that the rule did not require that the relevance or meaning because, under and long-term impacts of each regulatory authority accept the Clean the final rule, the applicant does not

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have the option of proposing appropriate and available information, such not to adopt proposed paragraph (a)(4) alternatives that are not reasonably as existing watershed plans, or in the absence because provisions of that paragraph are possible. Given that change, the final of such plans, existing information on now redundant and unnecessary. Under rule provides that the applicant must current watershed conditions and needs, past 30 CFR 816.97(a) and 817.97(a), the and current mining (and other development) select the alternative with the least trends, cumulative impacts of past, present, operator must, to the extent possible, overall adverse impact on fish, wildlife, and reasonable foreseeable future mining using the best technology currently and related environmental values. activities, and chronic environmental available, minimize disturbances and Some commenters requested that we problems (e.g., poor water quality, CWA adverse impacts on fish and wildlife define or explain the term ‘‘least overall 303(d)—listed streams, etc.) in the watershed. and related environmental values and adverse environmental impact.’’ We do The regulatory authorities can also provide must achieve enhancement of those not believe that a meaningful definition information on the appropriate watershed resources where practicable. Paragraph is possible, given the somewhat scale to consider. The level of data and (f) of 30 CFR 816.97 and 817.97 subjective nature of the term and the analysis for implementing a watershed approach should be commensurate with the provides that the operator must avoid site-specific nature of determinations disturbances to, enhance where under this rule. We expect that persons scale of the project, to the extent appropriate and reasonable. practicable, restore, or replace wetlands preparing permit applications and and riparian vegetation along rivers and We agree that the analysis of potential regulatory authority personnel streams and bordering ponds and lakes. alternatives required under paragraph reviewing those applications will use That paragraph also requires that the (d)(1)(ii) should appropriately consider their best professional judgment in operator avoid disturbances to, enhance the overall condition of the aquatic applying the requirements of this where practicable, or restore habitats of resources in the watershed, including paragraph of the rule. Consistent with unusually high value for fish and any impacts from previous mining the commonly accepted meaning of the wildlife. Paragraph (b)(1) of 30 CFR activities. words ‘‘overall’’ and ‘‘environmental,’’ 780.16 and 784.21 requires that the fish we have modified the rule to clarify that 4. Proposed Paragraph (a)(4) and wildlife protection and the scope of the term includes impacts Proposed paragraph (a)(4) of section enhancement plan in the permit to terrestrial ecosystems, not just application be consistent with the impacts to water quality and aquatic 780.35 provided that each application for an operation that will generate and requirements of 30 CFR 816.97 and ecosystems. The relative importance of 817.97, respectively. Therefore, these three components, as well as the dispose of excess spoil must describe the steps to be taken to avoid the proposed paragraph (a)(4) would not constituents of each of those add any requirements that are not components, will vary from site to site. adverse environmental impacts that may result from the construction of excess already found in 30 CFR 816.97 and Therefore, they are not readily defined 817.97. in a national rule. However, we have spoil fills or, if avoidance is not replaced the term ‘‘least overall adverse possible, to minimize those impacts. In addition, as revised in the final environmental impact’’ in the proposed The preamble to the proposed rule rule, paragraph (a)(3) of section 780.35 rule with the term ‘‘least overall impact explained that this requirement applied provides that permit applicants should on fish, wildlife, and related to construction, maintenance, and design their operations to avoid environmental values’’ to be consistent reclamation of the alternative selected placement of excess spoil in or within with the terminology that appears in the under proposed paragraph (a)(3)(iii). 100 feet of a perennial or intermittent underlying statutory provisions at EPA recommended that we revise the stream to the extent possible. This new sections 515(b)(24) and 516(b)(11) of rule to incorporate the concepts of provision establishes avoidance of SMCRA and to provide greater clarity. avoidance and minimization of adverse disturbance of perennial and EPA encouraged both permit environmental impacts into the intermittent streams and their buffer applicants and SMCRA regulatory alternatives analysis required by zones as the best technology currently authorities to use a watershed approach proposed paragraphs (a)(3)(i) and (ii) available to comply with the in determining which alternative would rather than placing them in a separate requirement under sections 515(b)(24) have the least overall adverse impact on paragraph. EPA stated that the intended and 516(b)(11) of SMCRA to minimize fish, wildlife, and related environmental purpose of the alternatives analysis is to disturbances and adverse impacts on values: determine the means by which excess fish, wildlife, and related environmental spoil could be disposed of with the least values. However, the statutory A watershed approach expands the informational and analytic basis of site adverse environmental impact. EPA minimization requirement applies only selection decisions to ensure impacts are further recommended removal of the ‘‘to the extent possible,’’ and, given the considered on a watershed scale rather than preamble language in the proposed rule realities of geology (which dictates only project by project. The idea being that specified that the avoidance and where coal is located), topography, and locational factors (e.g., hydrology, minimization requirements in proposed mining mechanics and economics, it is surrounding land use) are important to paragraph (a)(4) only applied to the not always possible to implement the evaluating the indirect and cumulative alternative selected under proposed ultimate form of minimization, which is impacts of the project. Watershed planning avoidance of disturbances, and still efforts can identify and prioritize where paragraph (a)(3)(iii). According to EPA, preservation of existing aquatic resources are these changes would reduce potential conduct surface coal mining operations. important for maintaining or improving the uncertainty regarding the appropriate Consequently, paragraph (a)(3) of the quality (and functioning) of downstream factors to consider in the alternatives final rule requires that the applicant resources. The objective of this evaluation is analysis and would reinforce the avoid disturbance only to the extent to maintain and improve the quantity and requirement to evaluate different project possible. Paragraph (a)(3)(i) of the quality of the watershed’s aquatic resources locations and design elements when revised final rule provides that, when a and to ensure water quality standards permit applicant proposes to place (numeric and narrative criteria, anti- assessing the viability and degradation, and designated uses) are met in environmental impacts of each location. excess spoil in or within 100 feet of a downstream waters. After considering these comments and perennial or intermittent stream, the Permit applicants should work with federal the changes that we made to paragraph applicant must explain, to the and state regulatory authorities to identify (a)(3) in the final rule, we have decided satisfaction of the regulatory authority,

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why an alternative that does not involve operations be designed both to This change is needed to ensure that the placement of excess spoil in or within minimize the creation of excess spoil analysis of alternatives and 100 feet of a perennial or intermittent and in a manner that ensures that the consideration of impacts on fish, stream is not reasonably possible. cumulative volume of all proposed wildlife, and related environmental Therefore, adoption of proposed excess spoil fills does not exceed the values are a meaningful part of the site paragraph (a)(4) is no longer appropriate capacity needed to accommodate the selection process. The change is because, as revised, paragraph (a)(3) of anticipated amount of excess spoil that consistent with section 515(b)(22)(E) of the final rule requires consideration of the operation will produce. We believe SMCRA, which requires that excess avoidance as part of the alternatives that those provisions should be spoil be placed ‘‘upon the most analysis and selection process. adequate to minimize the areas affected moderate slope among those upon In the preamble to the proposed rule, by excess spoil disposal. which, in the judgment of the regulatory we stated that we anticipated that the authority, the spoil could be placed in 5. Final Paragraph (a)(4) steps mentioned in proposed paragraph compliance with all the requirements of (a)(4) would include provisions in the Final paragraph (a)(4), which the Act.’’ One of the requirements of the operation plan to require that, when appeared as paragraph (a)(5) in the Act is the provision in section consistent with prudent engineering proposed rule, requires that each 515(b)(24) specifying that surface coal practice and applicable regulatory application for an operation that mining and reclamation operations must requirements, excess spoil placement proposes to generate excess spoil be conducted so as to minimize begin at the highest elevation of the include maps and cross-section disturbances and adverse impacts on planned fill and proceed down the drawings showing the location of all fish, wildlife, and related environmental valley to the toe of the fill, thus proposed disposal sites and structures. values to the extent possible, using the minimizing both impacts to waters of It also requires that fills be located on best technology currently available. the United States and the area affected the most moderately sloping and Implementation of that requirement may in the event that the full design capacity naturally stable areas available, unless entail placement of spoil on slopes other of the fill is not needed because of the regulatory authority approves a than the most moderate ones available. changes in mining plans or other different location based upon the reasons. We requested comment on alternatives analysis under paragraph 6. Final Paragraph (a)(5) whether this approach should be (a)(3) or on other requirements of the Final paragraph (a)(5), which incorporated into the rule language. Act and regulations. Whenever possible, appeared as paragraph (a)(6) in the We received very few comments and fills must be placed upon or above a proposed rule, requires that an those that we did receive were split on natural terrace, bench, or berm if that application for an operation that would this question. In this final rule, we have location would provide additional generate excess spoil include detailed decided against endorsing or adopting a stability and prevent mass movement. design plans for each excess spoil ‘‘top-down’’ construction requirement The final rule differs slightly from the disposal structure, prepared in because the technique raises serious proposed rule in that we have revised accordance with the requirements of stability issues. In addition, it would be the wording to clarify that if the sections 780.35 and 816.71 through inconsistent with provisions in the West regulatory authority approves a different 816.74. These requirements correspond Virginia Code of State Regulations (CSR) location, that decision must be based to a portion of the first sentence of the adopted to address fill stability upon the alternatives analysis under former version of section 780.35(a). As problems that the state encountered. paragraph (a)(3) or on other proposed, we have added language West Virginia requires that all durable requirements of the Act and regulations requiring compliance with the rock fills either be constructed from the The wording of the proposed rule was requirements of section 780.35 in toe up as provided by CSR 38–2– subject to misinterpretation because it recognition of the other revisions to that 14.14.g.3 or that an erosion protection allowed approval of a different location section. Paragraph (a)(5) also includes a zone be established below the toe of the based upon the alternatives analysis ‘‘or requirement to design the fill and single-lift fill in accordance with CSR other factors, taking into account other appurtenant structures using current 38–2–14.14.g.2. That zone is a flat area requirements of the Act and prudent engineering practices and any of durable rock equal in length to half regulations.’’ additional design criteria established by the height of the fill. The height of the The requirement for maps and cross- the regulatory authority. This erosion protection zone must be section drawings formerly appeared as requirement is not new. It formerly sufficient to accommodate designed part of the first sentence of paragraph (a) appeared in the first sentence of 30 CFR flow from the underdrain of the fill. of section 780.35, while the fill location 816.71(b)(1). As proposed, we are Because section 515(b)(22) of the Act requirements formerly appeared in 30 moving it to 30 CFR 780.35(a)(5) focuses on stability considerations in CFR 816.71(c). Those location because it is a design requirement, not the disposal of excess spoil, we do not requirements are more logically a performance standard. believe that it would be appropriate to included as part of the planning and adopt a regulation that could be in design requirements in the permitting 7. Final Paragraph (a)(6) conflict with existing state program regulations rather than as part of the Final paragraph (a)(6), which requirements intended to ensure fill performance standards. As formerly appeared as paragraph (a)(7) in the stability and protect downstream codified in 30 CFR 816.71(c), the rule proposed rule, requires that the residents and structures. Furthermore, required that fills be located on the most application include the results of a top-down construction is feasible only moderately sloping and naturally stable geotechnical investigation of each for durable rock fills under 30 CFR areas available. However, as proposed, proposed excess spoil disposal site, 816.73 and 817.73 and not all excess the final rule allows the regulatory with the exception of those sites at spoil qualifies for placement under authority to approve different locations, which spoil will be placed only on a those sections of our rules. Other based upon the analysis of alternatives preexisting bench under 30 CFR 816.74. regulations that we are adopting today required under proposed paragraph This requirement formerly appeared in as part of sections 780.35(a)(1) and (a)(2) (a)(3) of section 780.35 or on other section 780.35(b). As proposed, final and 784.19(a)(1) and (a)(2) require that requirements of the Act and regulations. paragraph (a)(6) also includes the

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requirement to conduct sufficient E. Section 784.19: Disposal of Excess mines, in which the provisions for foundation investigations that formerly Spoil (Underground Mines) surface and underground mines are in appeared in 30 CFR 816.71(d)(1). This As proposed, we are revising section separate parts, but are nearly identical shift is consistent with our effort to 784.19 to be consistent with the except for cross-references and the type consolidate design requirements in the definition of coal mine waste in 30 CFR of operation to which they apply. In permitting rules rather than splitting 701.5, which we adopted on September addition, adding specific language in them between the permitting rules and 26, 1983 (48 FR 44006). Among other place of the cross-reference to section the performance standards. The things, that definition reclassified 780.35 allows the incorporation of foundation investigation is an element underground development waste as coal cross-references to the appropriate of the geotechnical investigation that is mine waste, which means that fills underground mining performance required for approval of a proposed constructed of underground standards in part 817 rather than having excess spoil fill in a permit application. development waste must adhere to the to use the cross-references in section 780.35 to the surface mining 8. Final Paragraph (a)(7) requirements for refuse piles instead of performance standards in part 816. the requirements applicable to excess Final paragraph (a)(7), which A few commenters stated that, appeared as paragraph (a)(8) in the spoil fills. At the same time that we because of the limited amount of excess proposed rule, requires that each adopted the definition of coal mine spoil generated by underground mines, application include plans for the waste in 1983, we revised our we should use our authority under construction, operation, maintenance, performance standards at 30 CFR 817.71 section 516(d) of SMCRA to develop and reclamation of all excess spoil through 817.74 to eliminate the less stringent permitting requirements disposal structures (fills) in accordance language that combined underground for the disposal of that spoil. We decline with the requirements of 30 CFR 816.71 development waste with excess spoil for to accept that recommendation. We find through 816.74. This requirement purposes of performance standards for nothing unique about the type of excess corresponds to a similar provision underground mines. Because the spoil fills constructed as part of formerly located in section 780.35(a). definition of coal mine waste includes underground mining operations. The However, that provision included a underground development waste, the number of fills constructed as part of requirement for plans for the ‘‘removal, disposal of underground development underground mining operations may be if appropriate, of the site and waste is subject to the performance fewer than the number constructed as structures.’’ Because excess spoil fills standards for refuse piles at 30 CFR part of surface mines and the size of are permanent, it is not appropriate to 817.83 rather than the performance those fills may be smaller than those include plans for their removal in the standards for the disposal of excess associated with surface mines, but that application. Consequently, as proposed, spoil that applied under the pre-1983 is not always true. In addition, we find we have replaced the requirement for rules. no reason that fills associated with plans for removal of the fills with a Prior to the adoption of today’s final underground mines should be subject to requirement for plans for their rule, the design requirements for fills in lesser safety, stability, or environmental reclamation, which would consist of section 784.19 applied to both protection requirements than fills final site preparation and revegetation underground development waste and associated with surface mines. consistent with the approved excess spoil, which means that the Some industry commenters on the postmining land use. permitting requirements were proposed rule also opposed the inconsistent with the 1983 changes to September 26, 1983, rule changes that 9. Final Paragraph (a)(8) the corresponding performance classified underground development Final paragraph (a)(8), which standards. We have revised section waste as coal mine waste and required appeared as paragraph (a)(9) in the 784.19 to apply only to the disposal of that coal mine waste (including proposed rule, combines overlapping excess spoil, consistent with the 1983 underground development waste) requirements formerly found in 30 CFR changes to our definitions and disposed of outside the mine workings 780.35(c) and 816.71(d)(2) concerning performance standards regarding coal and excavations be placed in application and design requirements for mine waste. For the same reason, we accordance with 30 CFR 817.83, which keyway cuts or rock-toe buttresses. We removed all references to underground contains the performance standards for made no substantive changes in those development waste and revised the refuse piles. The commenters argued requirements. section heading to read ‘‘Disposal of that underground development waste excess spoil’’ instead of ‘‘Underground should be treated as excess spoil, not 10. Final Paragraph (b) development waste.’’ Under the final coal mine waste. The commenters’ As proposed, final paragraph (b) rule that we are adopting today, the objections are untimely. The definition requires that the application include a disposal of underground development of coal mine waste in 30 CFR 701.5 is certification by a qualified registered waste is now governed by the permitting now a matter of settled law, as is the professional engineer experienced in the requirements for refuse piles in 30 CFR removal of the applicability of the design of earth and rock fills that the 784.16. excess spoil performance standards at design of all fills and appurtenant As proposed, final section 784.19 30 CFR 817.71 through 817.73 to structures meets the requirements of parallels the language of section 780.35, underground development waste. The section 780.35. This requirement which contains the permit application performance standard at 30 CFR formerly appeared in the second requirements for the disposal of excess 817.81(a), which requires that coal mine sentence of 30 CFR 816.71(b)(1). We spoil generated by surface mining waste disposed of outside the mine have moved it to section 780.35 activities. The previous rule workings and excavations be placed in consistent with our effort to consolidate incorporated those requirements by designated coal mine waste disposal design requirements in the permitting reference. Adding specific language in areas within the permit area, also is rules rather than splitting them between place of the cross-reference to section settled law. The existing regulations at the permitting rules and the 780.35 makes this rule consistent with 30 CFR 817.71(i) allow coal mine waste performance standards. We made no the pattern established in most of our to be placed in excess spoil fills with substantive changes to this provision. other rules for surface and underground the approval of the regulatory authority,

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but only if the waste is nontoxic and F. Sections 816.11 and 817.11: Signs both during and after surface coal non-acid-forming and only if the waste and Markers mining operations and during is placed in accordance with 30 CFR Prior to adoption of this final rule, the reclamation.’’ Section 516(b)(9), which pertains to 817.83 (the requirements for refuse requirement that the operator mark underground coal mining operations, piles). buffer zones for perennial and Several commenters expressed contains similar language with the intermittent streams appeared in both concern that the 1983 rule’s exception that it does not mention water the stream buffer zone rules in sections classification of underground quality. Sections 515(b)(24) and 816.57(b) and 817.57(b) and the rules development waste as coal mine waste 516(b)(11) require that surface coal concerning signs and markers in could prohibit the use of underground mining and reclamation operations be sections 816.11(e) and 817.11(e). As development material for construction conducted to ‘‘minimize disturbances proposed, we are consolidating our of face-up areas, support facilities, and and adverse impacts of the operation on other beneficial uses. Underground buffer zone marking requirements in fish, wildlife, and related environmental development waste is unlikely to be sections 816.11(e) and 817.11(e). As values’’ ‘‘to the extent possible using the used for the construction of face-up revised, section 816.11(e), which best technology currently available.’’ As areas because the face-up of the mine applies to surface mines, provides that demonstrated by these quotes, SMCRA must be completed and construction of the boundaries of any buffer to be establishes a minimization standard mine adits must begin before maintained between surface mining rather than an absolute ‘‘will not underground development waste would activities and perennial or intermittent adversely affect’’ standard with respect be produced. Perhaps the commenters streams in accordance with sections to disturbance of the hydrologic balance are interpreting the 1983 rules as 780.28 and 816.57(a) must be clearly and disturbances and adverse impacts classifying material removed as part of marked to avoid disturbance by surface on fish, wildlife, and related the face-up of the underground mine as mining activities. Similarly, section environmental values. underground development waste. If so, 817.11(e), which applies to Consequently, we proposed to revise the commenters are misreading those underground mines, provides that the paragraph (b) of sections 816.43(b)(1) rules. Nothing in the definitions of coal boundaries of any buffer to be and 817.43(b)(1) to provide that the mine waste or underground maintained between surface activities regulatory authority may approve the development waste classifies face-up and perennial or intermittent streams in diversion of perennial and intermittent materials as either coal mine waste or accordance with sections 784.28 and streams within the permit area if the underground development waste. In 817.57(a) must be clearly marked to diversion is located, designed, addition, nothing in our existing rules avoid disturbance by surface operations constructed, and maintained using the or the rules that we are adopting today and facilities resulting from or in best technology currently available to would prohibit the use of underground connection with an underground mine. minimize adverse impacts to fish, development waste for construction of We received no comments on these wildlife, and related environmental support facilities or other mining- changes. values to the extent possible. This related uses, provided the use of the G. Sections 816.43 and 817.43: provision is consistent with sections waste for those purposes complies with Diversions 515(b)(24) and 516(b)(11) of SMCRA. all regulatory program requirements Nothing in this rule should be construed applicable to those uses. The final rules Before adoption of this final rule, as superseding the performance that we are adopting today apply only sections 816.43(b)(1) and 817.43(b)(1) standards for the protection of fish, to the permanent disposal of coal mine provided that the regulatory authority wildlife, and related environmental waste (including underground may approve diversion of perennial and values in 30 CFR 816.97 and 817.97 or development waste), not to the intermittent streams within the permit the related permitting requirements at temporary use of those materials for area after making the finding relating to 30 CFR 780.16 and 784.21. mining-related purposes. In other stream buffer zones that the diversion No counterpart to sections 515(b)(10) words, our excess spoil rules do not will not adversely affect the water or 516(b)(9) is necessary because apply to the temporary storage of quantity and quality and related paragraph (a)(1) of sections 816.43 and material removed during face-up of an environmental resources of the stream. 817.43, which applies to diversions of underground mine if that material must The referenced finding was the second all types, including stream-channel be returned or regraded upon the part of the finding formerly located in diversions, already provides that ‘‘[a]ll completion of mining to restore the sections 816.57(a)(1) and 817.57(a)(1). diversions shall be designed to approximate original contour. The As proposed, in this final rule we are minimize adverse impacts to the excess spoil rules apply only to replacing that finding with a provision hydrologic balance within the permit permanent placement. that is more consistent with the and adjacent areas.’’ Furthermore, The rationale for the specific underlying provisions of SMCRA. paragraph (a)(2)(iii) of sections 816.43 provisions concerning excess spoil that Sections 515(b)(10), 515(b)(24), and 817.43 requires that all diversions we are adopting as part of section 516(b)(9), and 516(b)(11) of SMCRA do be designed, located, constructed, 784.19 today is the same as the rationale not establish or authorize a ‘‘will not maintained, and used to prevent, to the for the changes to section 780.35 that we adversely affect’’ standard like the one extent possible, using the best are also adopting as part of this final formerly found in our stream buffer technology currently available, rule. See Part VIII.D. of this preamble for zone rules at 30 CFR 816.57(a)(1) and additional contributions of suspended a discussion of those rules and the 817.57(a)(1). Section 515(b)(10) requires solids to streamflow outside the permit rationale for them, substituting section that surface coal mining and area.’’ The language of that paragraph 516(b)(11) for references to section reclamation operations be conducted to closely resembles the language of 515(b)(24) and replacing references to ‘‘minimize the disturbances to the sections 515(b)(10)(B)(i) and the surface mining performance prevailing hydrologic balance at the 516(b)(9)(B) of the Act, which are two of standards in part 816 with references to mine site and in associated offsite areas the statutory provisions underlying the the corresponding underground mining and to the quality and quantity of water existing stream buffer zone rules. performance standards in part 817. in surface and ground water systems Furthermore, our permitting regulations

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at 30 CFR 780.29 and 784.29 require characteristics of the original stream paragraph (a)(3) of sections 816.43 and that each permit application include a channel including the natural riparian 817.43 because we have determined that description of how stream-channel vegetation to promote the recovery and they would not improve the clarity of diversions and other diversions are to be enhancement of the aquatic habitat.’’ In that paragraph. constructed in compliance with 30 CFR the preamble to the proposed rule, we Revised paragraph (b)(4) provides that 816.43 and 817.43, respectively. stated that the sentence pertained only a permanent stream-channel diversion In this final rule, we are adopting the to stream-channel diversions. Therefore, or a stream channel restored after the proposed revisions to sections we proposed to move that sentence to completion of mining must be designed 816.43(b)(1) and 817.43(b)(1) with one paragraph (b) of sections 816.43 and and constructed using natural channel editorial change. Instead of stating that 817.43 because those sections contain design techniques so as to restore or the regulatory authority may approve all other performance standards that approximate the premining the diversion of perennial and pertain only to stream-channel characteristics of the original stream intermittent streams within the permit diversions. As proposed, the final rule channel, including the natural riparian area if the diversion is located, that we are adopting today inserts that vegetation and the natural hydrological designed, constructed, and maintained sentence in revised form as paragraph characteristics of the original stream, to using the best technology currently (b)(4) of sections 816.43 and 817.43 and promote the recovery and enhancement available to minimize adverse impacts redesignates former paragraph (b)(4) as of the aquatic habitat and to minimize to fish, wildlife, and related paragraph (b)(5). adverse alteration of stream channels on environmental values to the extent However, EPA noted that the effect of and off the site, including channel possible, the final rule applies that the proposed changes would be to limit deepening or enlargement, to the extent provision only to the location and the requirements of that sentence to possible. The final rule is similar to the design of the diversion. This limitation diversions of perennial and intermittent proposed rule, although, to improve is appropriate because those are the streams, thus excluding diversions of clarity, we replaced the phrase ‘‘stream elements that would be included in the ephemeral streams. EPA stated that channel reclaimed after the removal of permit application. Construction and nothing in the existing rules limited the a temporary diversion’’ in the proposed maintenance are more appropriately scope of the last sentence of paragraph rule with the more accurate phrase included in a separate performance (a)(3) to perennial and intermittent ‘‘stream channel restored after the standard, which we have accomplished streams. While supporting new completion of mining.’’ The revised by adding a sentence to the end of paragraph (b)(4), EPA urged us to also language reflects the facts that, in the paragraph (b)(1) stating that the retain the last sentence of paragraph context of this rule, a stream channel is permittee must construct and maintain (a)(3) in paragraph (a) to ensure that its restored, not reclaimed (in 30 CFR the diversion in accordance with the requirements continue to apply to 701.5, we define reclamation in terms of approved design. permanent diversions of miscellaneous the postmining land use), and that the The U.S. Fish and Wildlife Service flows (including ephemeral streams) restored stream channel must be in stated that we were adopting a less under paragraph (c). place before the temporary stream- protective standard by revising the After considering this comment, we channel diversion is removed. standard from one that required a have decided not to implement our As proposed, paragraph (b)(4) finding that ‘‘the diversion will not proposal to remove the last sentence of includes new language concerning adversely affect the water quantity and paragraph (a)(3). We recognize that there natural channel design and adverse quality and related environmental will be situations in which permanent alteration of stream channels. This resources of the stream’’ to a diversions of ephemeral streams are language reinforces and clarifies the requirement that the diversion use the constructed and that some ephemeral meaning of the requirement to restore or best technology currently available to streams may have riparian vegetation or approximate the premining minimize adverse impacts to fish, aquatic habitats that must be replaced or characteristics of the original stream. wildlife, and related environmental restored to the extent required under The goals of natural channel design values to the extent possible. We do not paragraphs (a) and (f) of 30 CFR 816.97 include creating a stream channel that dispute this characterization. However, and 817.97. However, because all other will maintain the equilibrium of a the new standard is one that reflects the elements of paragraph (a)(3) pertain natural stream, neither downcutting provisions of SMCRA whereas the only to temporary diversions, we are (degrading) nor filling in (aggrading). A previous standard has no direct redesignating that sentence as new natural channel is not stable in the connection to SMCRA and is neither paragraph (a)(4) and are redesignating sense that a concrete, trapezoidal appropriate nor practicable. The Service existing paragraph (a)(4) as paragraph channel is stable. Depending on the recommended that we work with them (a)(5). In addition, for clarity and stream type, a natural channel may to develop state or regional design consistency with new paragraph (b)(4), meander, eroding and depositing standards that are practicable and we have slightly revised new paragraph sediment at natural rates as part of its effective. We accept this (a)(4) by replacing the phrase ‘‘stream dynamic equilibrium. The channel must recommendation. We also intend to channel reclaimed after the removal of pass the water and sediment that it invite EPA to participate because that a temporary diversion’’ with ‘‘stream receives downstream, and the channel agency also expressed an interest in this channel restored after the completion of must maintain a connection to the process. mining’’ to avoid creating the stream’s floodplain. The new provisions The last sentence of paragraph (a)(3) impression that the temporary diversion are consistent with sections 515(b)(24) of sections 816.43 and 817.43 as must be removed before constructing a and 516(b)(11) of SMCRA, which published on September 26, 1983 (48 FR restored stream channel. We also require use of the best technology 43993), provides that ‘‘[a] permanent inserted the modifier ‘‘any’’ in front of currently available to minimize diversion or a stream channel reclaimed ‘‘riparian vegetation’’ because not all disturbances and adverse impacts to after the removal of a temporary ephemeral streams have riparian fish, wildlife, and related environmental diversion shall be designed and vegetation. values to the extent possible. constructed so as to restore or We have decided not to adopt our In a final rule on compensatory approximate the premining proposed editorial revisions to mitigation for losses of aquatic

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resources, published on April 10, 2008 stream-channel diversions. The regardless of whether the channel is a (73 FR 19594), EPA and the Corps commenter stated that doing so would temporary or permanent diversion or a promulgated standards for exceed the requirements of both SMCRA restoration of the original channel. In compensatory mitigation for adverse and the Clean Water Act and that the addition, we are making editorial impacts on streams under section 404 of Corps does not require an analysis of revisions to this paragraph to clarify that the Clean Water Act. The provisions of alternatives in these situations. The separate certifications are required for the EPA/Corps mitigation rule related to commenter supported the natural- the design and construction of stream- mitigation work plans for streams are channel design requirement. channel diversions and stream contained in 33 CFR 332(c)(7) and After evaluating these comments, we restorations and to specify which include concepts of natural stream have decided not to require an requirements apply to the design channel design. In certain situations, alternatives analysis either for stream certification and which apply to the mine operators may find it diversions or mining through streams. construction certification. advantageous to design, construct, and First, when coal reserves exist beneath H. Sections 816.46 and 817.46: Siltation maintain stream-channel diversions in a a stream and those reserves could be Structures manner that satisfies both the extracted by surface mining methods, requirements of sections 816.43 and they are either mined or they are not. Paragraph (b)(2) of 30 CFR 816.46 and 817.43 of this rule and the requirements Under SMCRA, an operator’s decision 817.46 (1983) required that all surface of the EPA/Corps compensatory on whether to mine through a stream drainage from the disturbed area be mitigation rule. will be determined by geology, passed through a siltation structure In the preamble to the proposed rule, topography, and economics. We have no before leaving the permit area. In we sought comment on whether the authority under SMCRA to prevent essence, that paragraph prescribed revisions to sections 816.43(b) and diversion of a stream or mining through siltation structures (sedimentation 817.43(b) were sufficient to meet the a stream unless SMCRA prohibits ponds and other treatment facilities requirements of SMCRA, or whether we surface coal mining operations on the with point-source discharges) as the best should also revise our permitting rules land where the stream is located. technology currently available for to include a requirement for submission (However, SMCRA does not override sediment control. However, paragraph of alternatives and an analysis of the prohibitions that apply under other laws (b)(2) was struck down upon judicial environmental impacts of each and regulations. Any such prohibitions review because the court found that the alternative whenever the applicant will continue to apply according to the preamble to the rulemaking in which it proposes to mine through waters of the terms of those laws and regulations.) was adopted did not articulate a United States or divert perennial or Therefore, an alternatives analysis for sufficient basis for the rule under the intermittent streams. The requirements mining through a stream is not Administrative Procedure Act. The would be similar to the corresponding appropriate under SMCRA. With respect court stated that the preamble did not requirements for excess spoil fills and to stream diversions, this final rule adequately discuss the benefits and coal mine waste disposal facilities in strengthens the requirement that drawbacks of siltation structures and sections 780.25(d)(1) and 780.35(a)(3) diversions approximate natural stream alternative sediment control methods for surface mines or sections characteristics by adding a requirement and did not enable the court ‘‘to discern 784.16(d)(1) and 784.19(a)(3) for for the use of natural-channel design the path taken by [the Secretary] in underground mines. Potential techniques. Construction of stream- responding to commenters’’ concerns’’ alternatives could involve the number channel diversions in accordance with that siltation structures in the West are and length of stream segments diverted, these rules should minimize damage to not the best technology currently diversion design, construction undisturbed areas of the stream and available. See In re: Permanent Surface technique, location of the diversion, and should result in only temporary adverse Mining Regulation Litigation II, Round whether the diversion is temporary or impacts to the diverted segment. III, 620 F. Supp. 1519, 1566–1568 permanent. Because the rule already requires the (D.D.C. July 15, 1985). EPA supported requiring an use of natural-channel design On November 20, 1986 (51 FR 41961), alternatives analysis for both stream- techniques, an alternatives analysis for we suspended the rules struck down by channel diversions and mining through stream diversions would add no value the court. To avoid any confusion that streams, stating that the potential for to the decision-making process. may result from the continuing significant stream degradation as a Finally, as proposed, we are publication of those rules in the Code of result of these activities would be redesignating former paragraph (b)(4) of Federal Regulations, we proposed to minimized by doing so. The agency sections 816.43 and 817.43 as paragraph remove paragraph (b)(2) of sections stated that stream diversions and (b)(5). In accordance with the proposed 816.46 and 817.46 and redesignate the mining through streams often have rule, we are revising that paragraph to remaining paragraphs of those sections adverse impacts including direct losses require that a qualified registered accordingly. The continued presence of of stream function and resulting professional engineer certify both the the suspended paragraphs in the alteration of downstream hydrology, design and construction of all stream- published version of the rules has been water chemistry, and biotic channel restorations. The former rule a source of ongoing confusion. communities. The agency noted the applied that requirement only to We received no comments opposing preamble listed no examples of diversions of perennial and intermittent this proposal. Therefore, we are alternatives to mining through streams streams. We are adding the additional removing paragraph (b)(2) of sections and suggested that those alternatives requirement because stream-channel 816.46 and 817.46 as proposed. This could consist of variations in the restorations are even more significant in action supersedes the 1986 suspension number and length of stream segments terms of stability and environmental of the paragraph being removed. impacted, construction techniques, concerns than temporary diversions that Sections 816.45 and 817.45, which reclamation design, and location. exist only for the duration of mining; remain unchanged by this rule, set forth One state regulatory authority i.e., reconstructed stream channels various measures and techniques that opposed requiring an alternatives should be safe and stable and should may constitute the best technology analysis for mining through streams and approximate premining conditions currently available for sediment control,

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although applicants and regulatory placement under the Clean Water Act. changes to section 827.12 and nothing authorities are not limited to those As discussed at length in Part III.E. of in the final rule that we are adopting measures and techniques. this preamble, our historical today alters that situation. As part of interpretation and application of the this final rule, we are moving the I. Sections 816.57 and 817.57: Activities stream buffer zone rule is in harmony permitting aspects of the previous in or Adjacent to Perennial or with statements in the decision of the version of the stream buffer zone rule in Intermittent Streams U.S. Court of Appeals for the Fourth sections 816.57 and 817.57 to new 1. Background Circuit in Kentuckians for the sections 780.28 and 784.28. Existing Perennial and intermittent streams Commonwealth, Inc. v. Rivenburgh, 317 section 785.21(c) provides that coal overlie coal deposits in all regions of the F.3d 425, 442 (4th Cir. 2003). The rules preparation plants not located within nation. To the extent economically that we are adopting today are intended the permit area of a mine are subject not feasible and allowed by law, surface to clarify any lingering ambiguity only to the special permitting mining operations often relocate those regarding the appropriate interpretation requirements of section 785.21, but also streams as part of the process of of the stream buffer zone rules. to ‘‘all other applicable requirements of The stream buffer zone rule recovering the underlying coal. Streams this subchapter.’’ ‘‘This subchapter’’ effectively prescribes maintenance of a also may be relocated to facilitate the refers to subchapter G of chapter VII, 100-foot undisturbed zone between construction of mine-related facilities which contains the permitting perennial or intermittent streams and requirements for all surface coal mining such as coal preparation plants. In other surface mining activities (or, for and reclamation operations. Thus, to cases, steep slopes, narrow valleys and underground mines, surface activities ensure that section 785.21(c) is not now other topographical limitations may on the surface of lands) as the best interpreted as including the newly result in the construction of excess spoil technology currently available to fulfill added permitting requirements related fills, refuse piles, sedimentation ponds, the sediment control and fish and to the stream buffer zone rule, we are and coal mine waste impoundments in wildlife protection requirements of adding paragraph (a)(2)(i) of sections streams because the stream valley is the sections 515(b)(10)(B)(i), 515(b)(24), 780.28 and 784.28 to specify that the only logical and technologically and 516(b)(9)(B), and 516(b)(11) of SMCRA. requirements of those sections do not economically feasible location for those However, the concept of maintenance of apply to applications under section structures. All types of surface coal an undisturbed buffer zone as the best 785.21 for coal preparation plants not mining and reclamation operations may technology currently available for located within the permit area for a experience the need to construct bridge purposes of those sections of the Act mine. See Part VIII.C. of this preamble. abutments, culverts, or other structures applies only to activities that do not However, the other permitting rules that in or near perennial or intermittent involve disturbance of the streambed we are adopting today, including the streams to facilitate crossing of those and do not inherently occur within the new informational and analytical streams by roads, railroads, conveyors, buffer zone. When the regulatory requirements for proposed excess spoil pipelines, utilities, or similar facilities. authority and other pertinent fills and coal mine waste disposal Neither SMCRA nor the Clean Water government agencies approve the facilities, typically will apply to those Act precludes any of these activities, conduct of activities within the stream applications, either through operation of provided the activities comply with all and/or its buffer zone, an undisturbed section 785.21(c) or through cross- applicable requirements of those laws buffer between those activities and the references in the performance standards and their implementing regulations. stream inherently cannot be maintained. listed in section 827.12. In addition, Parts II and III.A. of this preamble Construction of fills and impoundments section 827.12(b) specifically requires explain the extent to which either in streams inherently involves that any stream-channel diversion SMCRA or its legislative history disturbance of all or part of what would comply with section 816.43. contemplates the activities listed above. have been the buffer zone for the For example, section 515(b)(22)(D) affected stream segment, as does 2. General Description of Changes mentions the construction of excess construction of most stream-crossing The revised version of sections 816.57 spoil fills in areas containing natural structures. In addition, when a stream is and 817.57 that we are adopting today watercourses, springs, and wet-weather diverted, the original streambed and attempts to minimize disputes and seeps. In addition, the legislative history what would have been its buffer zone misunderstandings associated with of SMCRA indicates that Congress typically are mined through or used for application of the 1983 version of the anticipated the continued construction construction of mining-related facilities. stream buffer zone rules in sections of coal mine waste impoundments in Nothing in this discussion should be 816.57 and 817.57. The language of the streams. construed as meaning that all rules that we are adopting today better As discussed in Part III.A. of this sedimentation ponds, excess spoil fills, conforms to the underlying provisions preamble, Congress, in developing the refuse piles, coal mine waste slurry of SMCRA. The revised rules legislation that ultimately became impoundments, and stream crossing distinguish between those situations in SMCRA, specifically considered and structures are automatically exempt which maintenance of an undisturbed rejected inclusion of an absolute from the requirement to maintain an buffer between surface activities and prohibition on disturbance of land undisturbed buffer zone. Only those perennial and intermittent streams within 100 feet of certain streams. While structures and activities (or portions constitutes the best technology currently we subsequently adopted stream buffer thereof) for which there is no reasonable available to implement the underlying zone rules as part of our initial and alternative location qualify for this statutory provisions (sections permanent program regulations exception. 515(b)(10)(B)(i) and (b)(24) and implementing SMCRA, we and the state Section 827.12 of our rules does not 516(b)(9)(B) and (b)(11) of SMCRA) and regulatory authorities have historically apply the stream buffer zone rule in those situations in which maintenance interpreted those rules as allowing sections 816.57 and 817.57 to coal of a buffer is neither feasible nor placement of fill material, including preparation plants not located within appropriate because the stream segment coal mine waste, in waters of the United the permit area of a mine. See 48 FR will be diverted, altered by a culvert or States, subject to approval of that 20399, May 5, 1983. We proposed no other stream-crossing structure,

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impounded, or filled. In the case of clarity and consistency as discussed in portions of the stream buffer zone rule. stream crossings involving bridges, Part VIII.F. of this preamble. We We have revised the rule to eliminate pipelines, utilities, or conveyors, the received no response to our request in the term ‘‘prohibitions’’ from the rule stream itself may sometimes remain the preamble to the proposed rule for text, but we continue to characterize undisturbed, but the crossing will then comment on whether a formal paragraph (a) of sections 816.57 and most likely require installation of regulatory definition of ‘‘buffer’’ or 817.57 as a prohibition in the preamble. abutments within the buffer zone. ‘‘buffer zone’’ would be useful. We did We also continue to use the term Construction of fills and impoundments not include a definition in the proposed ‘‘exception’’ as the heading for in streams inherently involves rule and we are not adopting a paragraph (b) of sections 816.57 and disturbance of all or part of what would definition as part of this final rule 817.57, but, in response to this comment have been the buffer zone for the because we find the meaning of those and a desire to improve the clarity of the affected stream segment, as does terms to be clear without a regulatory proposed rule, we have revised the construction of most stream-crossing definition. introductory text of that paragraph to structures. In addition, when a stream is Commenters representing industry clarify that the term ‘‘exception’’ means diverted, the original streambed and and state regulatory authorities that the buffer requirement of paragraph what would have been its buffer zone generally supported the proposed (a) of sections 816.57 and 817.57 does typically are mined through or used for revisions to sections 816.57 and 817.57 not apply to those segments of a construction of mining-related facilities. as much-needed and appropriate perennial or intermittent stream for As proposed, we are reorganizing our clarifications of those rules. However, which the regulatory authority, in rules to separate permitting one commenter stated that the proposed accordance with sections 780.28(d), requirements from performance rule did not go far enough: 784.28(d), 816.43(b)(1), or 817.43(b)(1), standards. The previous version of approves one or more of the activities We agree with how the clarification more paragraph (a) of sections 816.57 and explicitly reflects the historic interpretation listed in paragraphs (b)(1) through (b)(4) 817.57 contained both permitting by distinguishing between activities that are of sections 816.57 and 817.57. Thus, as requirements and performance not planned to occur in streams where a used in the final rule and this preamble, standards. The rules that we are buffer zone does apply and those activities the term ‘‘exception’’ does not apply to adopting today separate the two for that inherently involve placement of fill or the activity itself. clarity and consistency. Revised the disturbance of the stream channel. The term ‘‘exception’’ in the proposed sections 816.57 and 817.57 include only However, the text of the rule uses new rule and its preamble sometimes refers performance standards. As proposed, terminology such as ‘‘prohibition’’ and to the activities listed in paragraphs we are moving the permitting aspects of ‘‘exceptions’’ which incorrectly implies that (b)(1) through (b)(4) of sections 816.57 the rule (and therefore the statute) prohibits the stream buffer zone rules, which disturbances in stream channels. As the and 817.57 (most of which refer only to were formerly codified in paragraph agency correctly notes in the preamble, coal activities in the stream itself, not to (a)(1) of sections 816.57 and 817.57 as mining involves activities that inherently activities in the buffer zone). At other part of the performance standards in involve disturbances or placement of fill in times, it refers to land within 100 feet subchapter K, to new sections 780.28 the stream so a buffer zone is neither feasible of the stream segment directly impacted and 784.28, which are part of the nor appropriate. Accordingly, for those by those activities. However, in this permitting requirements of subchapter activities, there is no buffer zone at all. As final rule, the term exception refers only G. OSM explains, ‘‘those activities are governed to what would otherwise be the buffer As proposed, we are deleting former by other regulations.’’ The conduct of those zone for stream segments for which the types of activities is approved in the permit paragraph (a)(2) of sections 816.57 and in accordance with the ‘‘other regulations’’ regulatory authority approves one or 817.57, which required the regulatory which specifically govern those activities. more of the activities listed in authority to make a finding that any The rule as presently structured by setting paragraphs (b)(1) through (b)(4). This proposed temporary or permanent forth the buffer zone requirement and then usage is consistent with the preamble to stream-channel diversion will comply listing exceptions will inevitably prove to be the proposed rule, which describes with section 816.43 or 817.43. This inflexible or quickly obsolete since there are paragraph (b) of sections 816.57 and provision is unnecessary because the many types of activities where a buffer zone 817.57 as ‘‘providing an exception from obligation to comply with the stream- is infeasible or inappropriate. Of course this the prohibition on conducting activities channel diversion requirements of can be remedied by simply adding a catch- that would disturb the surface of lands all provision to the exceptions that sections 816.43 and 817.43 is recognizes any other activity planned and within 100 feet of waters of the United independent of any cross-reference in approved to occur in the stream. However, States.’’ 72 FR 48908–48909, August 24, section 816.57 or 817.57. We are we believe it far better to restructure the rule 2007. In addition, it is consistent with consolidating the permitting so that it more straightforwardly reflects the the intent of the proposed rule, which requirements for stream-channel underlying functional and operational as stated in the introductory clause of diversions in sections 816.43 and distinction that has guided the rule’s proposed paragraph (b), was to specify 817.43, which we are revising as application historically: (1) activities that the circumstances in which the proposed. See Part VIII.G. of this occur in the streams and, (2) activities that requirement to avoid disturbance of preamble. are not designed to occur in the streams. land within 100 feet of waters of the We also are deleting former paragraph The commenter provided a suggested United States did not apply. (b) of sections 816.57 and 817.57, which rewrite of sections 816.57 and 817.57, Under the final rule, with the provided that the area not to be which we are not adopting, for the most exception of stream-channel diversions, disturbed must be designated as a buffer part. We appreciate the commenter’s for which all requirements appear in zone and marked as specified in section support of the basic principle sections 816.43(b) and 817.43(b), 816.11 or 817.11. This deletion is not a underlying our revisions to the stream application requirements for activities substantive change because the buffer zone rule, but we disagree with that take place in perennial or requirement to mark the area to be left the commenter’s arguments against use intermittent streams appear in sections undisturbed as a buffer zone also of the terms ‘‘prohibitions’’ and 780.28(b) and 784.28(b), regulatory appears in sections 816.11(e) and ‘‘exceptions.’’ We find that those terms authority approval standards for those 817.11(e), which we have revised for accurately describe the pertinent activities appear in sections 780.28(d)

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and 784.28(d), and performance intermittent or perennial streams—and only where those activities would not standards for those activities appear in in those situations the rationale for cause or contribute to the violation of paragraphs (b)(1) through (b)(4) and (c) maintaining an undisturbed buffer applicable State or Federal water quality of sections 816.57 and 817.57. With ceases to exist. As discussed at length in standards developed pursuant to the respect to activities that will take place Part III.E. of this preamble, our Clean Water Act, as determined through within 100 feet of a perennial or historical approach to application of the certification under section 401 of the intermittent stream segment, but will stream buffer zone rule is in harmony Clean Water Act (33 U.S.C. 1341) or a not disturb the stream segment itself, with statements of the U.S. Court of permit under section 402 or 404 of the the final rule establishes application Appeals for the Fourth Circuit in its Clean Water Act (33 U.S.C. 1342 and requirements in sections 780.28(c) and decision in Kentuckians for the 1344, respectively). This language does 784.28(c), regulatory authority approval Commonwealth, Inc. v. Rivenburgh, 317 not establish a general prohibition standards in sections 780.28(e) and F.3d 425, 442–443 (4th Cir. 2003) (‘‘it is against mining activities in intermittent 784.28(e), and performance standards in beyond dispute that SMCRA recognized or perennial streams, including the paragraph (c) of sections 816.57 and the possibility of placing excess spoil placement of excess spoil or other fill 817.57. material in waters of the United materials in those streams. Instead, it We are not adopting the commenter’s States’’). reiterates that mining-related discharges recommendation that we revise The final rule that we are adopting are subject to the permitting paragraph (b) of sections 816.57 and today clarifies, but in this regard does requirements of sections 402 and 404 of 817.57 to exclude buffer zones for not alter, the basic historical and current the Clean Water Act and the water stream segments affected by any activity application of the 1983 stream buffer quality certification requirement under planned and approved to occur in the zone rule. Consistent with the section 401 of the Clean Water Act. stream. We find this exception to be too application of the 1983 stream buffer These requirements are independently broad. We believe that the activities that zone rule, paragraph (b) of final sections applicable under the Clean Water Act. we list in paragraphs (b)(1) through 816.57 and 817.57 recognizes that the Paragraph (a)(2) does not require the (b)(4) include all situations in which it conduct of surface coal mining and SMCRA regulatory authority to make a may be inherently necessary to conduct reclamation operations sometimes determination that a particular mining activities in a stream segment to requires the diversion of perennial and activity is consistent with applicable facilitate surface coal mining and intermittent streams, the construction of water quality standards. The reclamation operations. We also have fills in streams, and other disturbances determination that a particular mining reviewed our rules to ensure that, for of stream segments for sediment control activity is consistent with applicable those activities, the obligation to and construction of stream crossings. water quality standards will be made minimize disturbances and adverse Therefore, the final rule provides that only by the appropriate Federal or State impacts to fish, wildlife, and related the requirement to maintain an entity responsible for the issuance of environmental values to the extent undisturbed buffer zone for perennial permits under sections 402 and 404 of possible using the best technology and intermittent streams does not apply the Clean Water Act and certification currently available has been applied to those stream segments for which the under section 401 of that law. The rule through other requirements. To the regulatory authority approves one or anticipates that a SMCRA permit will extent that a SMCRA permit applicant more of the activities listed in typically be issued prior to issuance of may receive authorization under the paragraphs (b)(1) through (b))(4) of any permits or certifications required Clean Water Act to place fill material in sections 816.57 and 817.57. under the Clean Water Act. However, in the stream as part of an activity other those circumstances, new paragraph 3. Paragraph (a) than those listed in paragraphs (b)(1) (d)(2) of sections 780.28 and 784.28 through (b)(4), we will take that Final paragraph (a)(1) of sections provides that a SMCRA permit approval into consideration during the 816.57 and 817.57 specifies that, except authorizing mining activities in SMCRA permitting process. However, as provided in paragraph (b) and perennial or intermittent streams must any activities conducted in the buffer consistent with paragraph (a)(2), the include a condition requiring that the zone for the stream segment affected by permittee or operator may not conduct permittee obtain all required approvals the Clean Water Act authorization will surface activities that would disturb the under the Clean Water Act before remain subject to the pertinent surface of land within 100 feet, initiating those activities. As the rule provisions of sections 780.28 and 816.57 measured horizontally, of a perennial or itself makes clear, this provision of the or sections 784.28 and 817.57. intermittent stream unless the stream buffer zone rule is not applicable Many commenters strongly opposed regulatory authority authorizes the to any water not subject to jurisdiction our proposed revisions to sections disturbance under paragraph (e) of under the Clean Water Act. Further, any 816.57 and 817.57, characterizing section 780.28 or 784.28. With the discharges to waters not covered by the paragraph (b) in particular as creating exception of the addition of a new stream buffer zone rule that are new and unwarranted exceptions. We paragraph (a)(2), paragraph (a) of final jurisdictional ‘‘waters of the United disagree with this characterization. The sections 816.57 and 817.57 is States’’ under the Clean Water Act must 1983 version of the stream buffer zone substantively identical to the proposed still comply with all applicable rule has historically been applied—and rule, although we have made minor permitting requirements under that law. continues to be applied—to allow each editorial revisions for clarity and As discussed in more detail in Part IV of the activities listed in paragraphs brevity. of this preamble, none of the revisions (b)(1) through (b)(4) to occur. As other The final rule adds a new paragraph to the stream buffer zone rule or other commenters emphasize, the requirement (a)(2) to sections 816.57 and 817.57 to elements of this final rule affect a mine to maintain an undisturbed buffer address Clean Water Act requirements. operator’s responsibility to comply with between the stream and surface We are also adding a citation to the new water quality standards, effluent activities related to surface coal mining paragraph in paragraph (a)(1). New limitations, or other requirements of the and reclamation operations has not been paragraph (a)(2) provides that surface Clean Water Act. applied and does not apply to activities mining activities in perennial or A few commenters argued that a 100- planned and approved to occur in intermittent streams may be authorized foot buffer zone [see paragraph (a)(1) of

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the final rule] was insufficient to ensure including those at 30 CFR 780.16, under section 817.121(a) and (b) must protection of fish, wildlife, and related 784.21, 816.97, and 817.97, provide address impacts on perennial and environmental values associated with sufficient protection for terrestrial intermittent streams and the extent to the streams. Those comments are not wildlife. which the operation can be and has germane to this rulemaking because we One commenter stated that section been designed to prevent subsidence did not propose any changes to the 100- 817.57(a) should apply to subsidence causing material damage to the extent foot distance, which has long been a resulting from underground mining technologically and economically matter of settled law, nor did we seek activities beneath the stream. We feasible (or, for planned subsidence comments on the adequacy of that disagree. In response to litigation operations, the extent to which the distance. To the extent that commenters concerning the 1983 version of 30 CFR operation has been designed to provided scientific data to support their 817.57, we stipulated that the stream minimize material damage to the extent suggestions, they did so primarily in the buffer zone requirement for technologically and economically context of the value of buffers for underground mines ‘‘is directed only to feasible). terrestrial species. However, the width disturbance of surface lands by surface 4. Paragraph (b) of the buffer that we established in our activities associated with underground rules is based upon sediment control mining.’’ In re: Permanent Surface Paragraph (b) of the proposed rule and protection of aquatic ecosystems. Mining Regulation Litigation II-Round provided that the prohibition in In developing the stream buffer zone II, 21 ERC 1725, 1741, footnote 21 paragraph (a) on disturbance of the rule for the initial regulatory program, (D.D.C. 1984). In addition, only one buffer zone did not apply to certain we selected the 100-foot width based provision of SMCRA prohibits the activities in waters of the United States. primarily on sediment control conduct of underground mining Those activities were listed in considerations. See the preamble to 30 operations that could result in the paragraphs (b)(1) through (b)(4). We CFR 715.17(d)(3) at 42 FR 62652, subsidence of streams. That provision have extensively revised paragraph (b) December 13, 1977, which states that [section 516(c)] requires the regulatory in response to comments. First, as ‘‘[t]he 100-foot limit is based on typical authority to suspend underground coal discussed in Part VII of this preamble, distances that should be maintained to mining adjacent to ‘‘permanent streams’’ we did not adopt the proposed change protect stream channels from abnormal if the mining activities present an in scope from perennial and erosion.’’ Preambles to subsequent ‘‘imminent danger to inhabitants of the intermittent streams to waters of the versions of the stream buffer zone rule urbanized areas, cities, towns, and United States. Second, as discussed mention the benefits that buffer zones communities.’’ Our regulations at 30 above in Part VIII.I.2. of this preamble, provide to wildlife, but those benefits CFR 817.121(f) clarify that the term we have revised the introductory are ancillary to the primary purpose of ‘‘permanent streams’’ means perennial language of paragraph (b) to clarify that the buffer zone, which is to protect the streams. Neither section 516(c) of the the buffer requirement of paragraph (a) integrity of the stream. In the preamble Act nor 30 CFR 817.121(f) mention does not apply to those segments of a to the 1983 version of the stream buffer environmental impacts as a threshold perennial or intermittent stream for zone rule at 30 CFR 816.57 and 817.57, for the prohibition of mining. which the regulatory authority, in we rejected comments suggesting buffer Subsidence impacts are regulated accordance with sections 780.28(d), widths other than 100 feet, stating under section 516(b)(1) of SMCRA, 784.28(d), 816.43(b)(1), or 817.43(b)(1), that— which provides, in relevant part, that approves one or more of the activities The 100-foot width is used to protect the permit must require the operator listed in paragraphs (b)(1) through (b)(4) streams from sedimentation and help to— of sections 816.57 and 817.57. There is preserve riparian vegetation and aquatic no need or reason to apply the buffer habitats. Since the 100-foot zone provides a Adopt measures consistent with known requirements of paragraph (a)(1) to a simple and valuable standard for technology in order to prevent subsidence stream segment that will cease to exist causing material damage to the extent enforcement purposes, OSM has chosen not because of construction of a stream- to change the general rule. technologically and economically feasible, maximize mine stability, and maintain the channel diversion, excess spoil fill, 48 FR 30314, June 30, 1983. value and reasonably foreseeable use of such refuse pile, slurry impoundment, or Expanding the stream buffer zone surface lands, except in those instances sedimentation pond.2 In those based on the needs of terrestrial species where the mining technology used requires situations, there is no longer any stream has no sound scientific basis for the planned subsidence in a predictable and segment to protect. Furthermore, purpose of the stream buffer zone rule, controlled manner: Provided, That nothing in construction of those diversions, fills, which focuses on protection of water this subsection shall be construed to prohibit and impoundments inherently requires quality and aquatic habitats. the standard method of room and pillar disturbance of the buffer for the stream Furthermore, establishing a buffer zone mining. segment as well as the stream segment width based on the needs of terrestrial Our definition of ‘‘material damage’’ itself. With respect to stream crossings species is not practical because the in this context in 30 CFR 701.5 includes optimal width of the buffer zone for a functional impairment of surface lands 2 In Ohio Valley Environmental Council v. U.S. each species varies considerably. In or features. Perennial and intermittent Army Corps of Engineers, Civ. Action No. 3:05– 0784 (S.D. W. Va., June 13, 2007), the district court addition, as discussed in section streams are considered surface features. held that discharges of sediment-laden water from III.I.1.a) of the final environmental As stated in the preamble to that the toe of a fill into stream segments leading to a impact statement (FEIS) for this definition, ‘‘[t]he definition of ‘material sedimentation pond embankment require a permit rulemaking, a 100-foot buffer zone has damage’ covers damage to the surface under section 402 of the Clean Water Act. That decision is on appeal to the U.S. Court of Appeals considerable value as a connecting and to surface features, such as for the Fourth Circuit as of the date of writing of corridor for terrestrial species. Also, as wetlands, streams, and bodies of water, this preamble. However, we believe this rule, as discussed in section III.I.1 of the FEIS, and to structures or facilities.’’ 60 FR finalized here, is sufficient to accommodate the scientific studies generally support the 16724, March 31, 1995. Therefore, the ultimate outcome of this litigation because the issuance of a SMCRA permit does not relieve the current 100-foot width for purposes of subsidence control plan for the permittee of the obligation to comply with all sediment control and protection of underground mine prepared under requirements of the Clean Water Act. See section aquatic ecosystems. Other existing rules, section 784.20(b) and implemented 702(a) of SMCRA.

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under paragraph (b)(2), culverts, low- divert perennial or intermittent streams Also, under our existing regulations, water crossings, and excavations for before mining through them. support facilities, which may include buried pipelines and utilities Therefore, we have revised paragraph railroads, pipelines, utilities, and necessarily disturb the streambed. The (b)(1) of sections 816.57 and 817.57 to conveyor systems, must comply with road, pipeline, conveyor, or other utility refer to diversions of perennial or sections 816.181 and 817.181. Paragraph will necessarily disturb portions of the intermittent streams rather than to (b) of sections 816.181 and 817.181 buffer zone adjacent to the crossing, mining through waters of the United includes language similar to the even when a bridge is constructed to States. As in the proposed rule, the final sedimentation control and fish and avoid directly disturbing the stream rule contains a reminder that all stream- wildlife protection requirements of itself. Third, in addition to removing channel diversions must comply with sections 515(b)(10)(B)(i), 516(b)(9)(B), references to waters of the United sections 816.43(b) and 817.43(b), which 515(b)(24), and 516(b)(11) of SMCRA. States, we have modified paragraphs contain approval, design, and Paragraph (b)(3) (b)(1) through (b)(4) as explained in the construction requirements specific to following discussion of those stream-channel diversions and stream- Proposed paragraph (b)(3) applied to paragraphs. channel restorations. the construction of sedimentation pond As proposed, for informational embankments in waters of the United purposes, paragraphs (b)(1) through Paragraph (b)(2) States. One commenter requested that (b)(4) specify that persons conducting Proposed paragraph (b)(2) applied to this provision be expanded to include the pool or storage area for the the activities listed in those paragraphs the placement of bridge abutments, sedimentation pond. We believe that the must comply with all other applicable culverts, or other structures in or near proposed rule implied the inclusion of requirements of the regulatory program. waters of the United States to facilitate those areas because they are an Each of those paragraphs also cross- crossing those waters. One commenter unavoidable result of the construction of references some of the most directly requested that the rule also apply to sedimentation pond embankments in relevant regulatory program stream crossings for utilities, pipelines, perennial or intermittent streams. requirements. and conveyors. We intended for this However, in response to this comment, rule to apply to all stream crossings, not Paragraph (b)(1) we have revised paragraph (b)(3) to just those for roads. Therefore, we have Proposed paragraph (b)(1) applied to clarify that it applies to the construction revised paragraph (b)(2) to apply to the mining through waters of the United of sedimentation pond embankments in placement of bridge abutments, culverts, States. It specified that such activities a perennial or intermittent stream and, or other structures in or within 100 feet must comply with the requirements of by extension, to the pool or storage area of a perennial or intermittent stream to section 816.43(b) or 817.43(b) if the created by the embankment. As facilitate the crossing of the stream by mining involves the temporary or proposed, final paragraph (b)(3) roads, railroads, conveyors, pipelines, permanent diversion of a perennial or provides that activities under this utilities, or similar facilities. As intermittent stream. One commenter paragraph must comply with the applicable, activities under this suggested that, to avoid creating the sediment control requirements of paragraph must comply with the road misapprehension that the stream buffer section 816.45(a) or 817.45(a). In design, construction, and maintenance zone rule could operate to prohibit response to a different comment, we requirements of sections 816.150 and underground mining beneath streams, have added a reminder that, under 816.151 or, for railroad spurs, pipelines, paragraph (b)(1) of section 817.57 sections 816.56 and 817.56, all utilities, and conveyors, with the should either be eliminated or be sedimentation pond embankments must support facility requirements of section revised to refer only to the diversion of be removed and reclaimed before 816.181. For underground mining perennial or intermittent streams rather abandoning the permit area or seeking operations, the appropriate cross- than to mining through streams. In final bond release unless the regulatory references are sections 817.150, 817.151, response to this comment, we have authority approves retention of the pond and 817.181, respectively. revised paragraph (b)(1) of both sections as a permanent impoundment under 816.57 and 817.57 by deleting the Sections 816.151(d)(6) and section 816.49(b) or 817.49(b) and reference to mining through waters of 817.151(d)(6) contain standards provisions have been made for sound the United States and replacing it with governing the types of structures that future maintenance by the permittee or a reference to diverting perennial or primary mine roads may use to cross the landowner in accordance with 30 intermittent streams. perennial and intermittent streams. Any CFR 800.40(c)(2). We find the commenter’s suggestion low-water crossings must be designed, Both the 1979 and 1983 versions of compelling with respect to underground constructed, and maintained to prevent our permanent regulatory program mining operations, which may require erosion of the structure or the streambed regulations prohibit the placement of diversion of some perennial or and additional contributions of sedimentation ponds in perennial intermittent stream segments to suspended solids to streamflow. streams unless approved by the facilitate the construction of mining- Sections 816.151(c)(2) and 817.151(c)(2) regulatory authority. See 30 CFR related facilities, but which are unlikely prohibit the use of stream fords for 816.46(a)(2) (1979) and 816.46(c)(1)(ii) to involve mining through those primary roads unless they are approved (1983). However, the preamble to the streams. We also find the change in by the regulatory authority as temporary 1979 rules explains that construction of terminology appropriate for surface routes during road construction. All sedimentation ponds in streams mining operations because, in view of mine access and haul roads, whether typically is a necessity in steep-slope our decision not to revise the scope of primary or not, must comply with mining conditions: this rule to include waters of the United section 816.150(b) or 817.150(b). Those States, there is no longer any need to regulations include language similar to Sedimentation ponds must be constructed prior to any disturbance of the area to be refer to mining through waters other the sedimentation control and fish and drained into the pond and as near as possible than perennial or intermittent streams. wildlife protection requirements of to the area to be disturbed. [Citation omitted.] Sections 816.43(b) and 817.43(b) sections 515(b)(10)(B)(i), 515(b)(24), Generally, such structures should be located effectively require that the permittee 516(b)(9)(B), and 516(b)(11) of SMCRA. out of perennial streams to facilitate the

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clearing, removal and abandonment of the adverse environmental impacts sections 817.81(a), 817.83(a), and pond. Further, locating ponds out of associated with construction and 817.84, respectively. perennial streams avoids the potential that operation of the waste treatment system. As discussed in Parts VIII.B., VIII.D., flooding will wash away the pond. However, In particular, 30 CFR 816.46(c)(1)(ii) and under design conditions, ponds may be and VIII.E. of this preamble, we are constructed in perennial streams without 817.46(c)(1)(ii) require that all extensively revising our rules governing harm to public safety or the environment. sedimentation ponds be placed as near the disposal of excess spoil and coal Therefore, the final regulations authorize the as possible to the disturbed area that mine waste. In both cases, we are regulatory authority to approve construction they serve. We interpret this provision adding provisions designed to ensure of ponds in perennial streams on a site- as meaning that sedimentation ponds use of the best technology currently specific basis to take into account collecting runoff from excess spoil fills available, to the extent possible, to topographic factors. [Citation omitted.] must be constructed as close to the toe minimize the adverse impacts on fish, * * * * * of the fill as possible. We also stated our wildlife, and related environmental Commenters suggested allowing belief that application of the existing values that may result from construction construction of sedimentation ponds in rules in this manner will properly intermittent and perennial streams. Because of excess spoil and coal mine waste of the physical, topographic, or geographical implement the intent of Congress in disposal facilities. See sections constraints in steep slope mining areas, the enacting SMCRA, as expressed in 780.25(d)(1), 780.35(a)(3), 784.16(d)(1), valley floor is often the only possible location section 102(f) of the Act, which and 784.19(a)(3). In addition, we are for a sediment pond. Since the valleys are provides that one of the purposes of the adding paragraphs (a)(1) and (a)(2) of steep and quite narrow, dams must be high Act is to strike a balance between energy sections 780.35 and 784.19 to require and must be continuous across the entire production and environmental that operations be designed to minimize valley in order to secure the necessary protection. However, we sought storage. the creation of excess spoil and to comment on whether it would be ensure that fills are no larger than * * * * * appropriate or helpful to revise those The Office recognizes that mining and necessary to accommodate the rules by replacing the term ‘‘perennial anticipated volume of excess spoil. other forms of construction are presently streams’’ with ‘‘waters of the United undertaken in very small perennial streams. Other Comments Received on Proposed Many Soil Conservation Service (SCS) [now States’’ or whether we should more the Natural Resources Conservation Service] clearly specify the conditions under Paragraph (b) structures are also located in perennial which the regulatory authority may The preamble to the proposed rule streams. Accordingly, OSM believes these approve placement of sedimentation stated that we intended that the list of cases require thorough examination. ponds in perennial streams or other activities in paragraph (b) would Therefore, the regulations have been waters of the United States. include the universe of activities that modified to permit construction of We received one comment inherently involve placement of fill sedimentation ponds in perennial streams recommending that we take both material into waters of the United States only with approval by the regulatory actions. The comment advocating authority. as part of surface coal mining and replacement of ‘‘perennial streams’’ reclamation operations. We invited 44 FR 15159–60, March 13, 1979. with ‘‘waters of the United States’’ is comment on whether the list met that In short, sedimentation ponds must be moot in light of our decision, as goal and, if not, how any other activities constructed where there is sufficient explained in Part VII of this preamble, that involve placement of fill material storage capacity, which, in narrow not to adopt the term ‘‘waters of the valleys lacking natural terraces, United States’’ as a replacement for into waters of the United States as part typically means in the stream. perennial and intermittent streams. of surface coal mining and reclamation In the preamble to the proposed rule, With respect to the second part of the operations should be regulated under we stated our belief that our existing comment, the commenter provided no SMCRA with respect to this rule. rules at 30 CFR 816.46(c)(1)(ii) and suggestions on what specifications we The few commenters who responded 817.46(c)(1)(ii) can be applied in a should adopt. Therefore, we are not to this request expressed concern that manner consistent with a March 1, making any changes in response to this the list was not all-inclusive. They 2006, letter from Benjamin Grumbles, comment. recommended that it be revised to Assistant Administrator of the universally include all activities that are Environmental Protection Agency, to Paragraph (b)(4) planned and approved to occur in the John Paul Woodley, Assistant Secretary Proposed paragraph (b)(4) applied to stream. We have not adopted this of the Army (Civil Works).3 Among the construction of excess spoil fills and recommendation. We believe that the other things, that letter states that the coal mine waste disposal facilities in activities that we list in paragraphs sedimentation pond must be waters of the United States. The final (b)(1) through (b)(4) include all constructed as close to the toe of the fill rule is identical to the proposed rule situations in which it may be inherently as practicable to minimize temporary with the exception that we have necessary to conduct activities in a replaced ‘‘waters of the United States’’ stream segment to facilitate surface coal 3 In Ohio Valley Environmental Council v. U.S. with ‘‘a perennial or intermittent mining and reclamation operations. To Army Corps of Engineers, Civ. Action No. 3:05– stream’’ for reasons discussed in Part VII the extent that a SMCRA permittee or 0784 (S.D. W. Va., June 13, 2007), the district court held that discharges of sediment-laden water from of this preamble. As proposed and permit applicant may receive the toe of a fill into a stream segments leading to adopted, paragraph (b)(4) also provides authorization under the Clean Water Act a sedimentation pond embankment requires a a reminder that excess spoil fills must to place fill material in a stream as part permit under section 402 of the Clean Water Act. comply with the requirements of of an activity other than those listed in That decision is on appeal to the U.S. Court of Appeals for the Fourth Circuit as of the date of paragraphs (a) and (f) of section paragraphs (b)(1) through (b)(4), we will writing of this preamble. However, we believe this 816.71or 817.71. It also provides a consider that approval and its rule, as finalized here, is sufficient to accommodate reminder that coal mine waste disposal implications when reviewing a SMCRA the ultimate outcome of this litigation because the facilities must comply with the permit application. However, surface issuance of a SMCRA permit does not relieve the permittee of the obligation to comply with all pertinent requirements of sections activities conducted in the buffer zone requirements of the Clean Water Act. See section 816.81(a), 816.83(a), and 816.84, or, for of a stream segment are subject to the 702(a) of SMCRA. underground mining operations, stream buffer zone rule regardless of

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whether that segment is also subject to are designed to assure that the water • Stream crossings involving roads, a Clean Water Act authorization. flowing from the sediment pond into conveyors, pipelines, or power lines One commenter recommended that waters of the United States will meet We have revised paragraph (b)(2) to we add a list of other activities to effluent limitations. clarify that it applies to the placement paragraph (b). Our responses to the However, in 2007, the U.S. District of bridge abutments, culverts, or other suggested additions are set forth below: Court for the Southern District of West structures in or within 100 feet of a • Pool or storage area for Virginia held that these stream segments perennial or intermittent stream to sedimentation ponds and are in fact waters of the United States, facilitate the crossing of the stream by impoundments that sediment washing off the face of the roads, railroads, conveyors, pipelines, As discussed above, we have added a fill does not qualify as fill material, and utilities, or similar facilities. • sentence to paragraph (b)(3) to clarify that the discharge of pollutants such as Ephemeral streams and isolated that the provisions of that paragraph sediment into the stream segments waters of the United States extend to the pool or storage area between the toe of the fill and the These features are not subject to the created by the construction of a sedimentation pond embankment is stream buffer zone rule, which applies sedimentation pond embankment in a impermissible unless the discharge is only to perennial and intermittent perennial or intermittent stream. authorized in a permit issued under streams. However, their exclusion from • Stream reaches between the toe of section 402 of the Clean Water Act. See the stream buffer zone rule does not an excess spoil fill, refuse pile, or slurry Ohio Valley Environmental Council v. mean that they need not be considered impoundment and the sediment or U.S. Army Corps of Engineers, Civ. during the SMCRA permitting process. drainage control structure for that fill, Action No. 3:05–0784 (S.D. W. Va., June In some cases, the provisions of sections refuse pile, or impoundment 13, 2007). That decision is on appeal to 816.97(f) and 817.97(f) concerning Historically, we and the state wetlands and habitats of unusually high regulatory authorities have considered the U.S. Court of Appeals for the Fourth Circuit as of the date of writing of this value for fish and wildlife may apply. stream reaches of this nature to be part • Activities listed in 33 CFR 323.4 for preamble. Regardless of the outcome of of the mining operation and included which no permit is required under that litigation, we see no need to revise them within the permit area because section 404 of the Clean Water Act they no longer function as a stream, but our rules in response to the The fact that certain activities do not as a channel directing runoff from the commenter’s concern. We recognize that require a permit for purposes of section face of the fill, refuse pile, or slurry the litigation has the potential to affect 404 of the Clean Water Act is not pond embankment to the sediment pond the implementation of sediment control sufficient justification for excluding for that structure. Our approach is for excess spoil fills, the extent to which those activities from the requirement to consistent with the historical practice of sediment ponds continue to be maintain an undisturbed buffer between Clean Water Act permitting authorities, constructed in intermittent or perennial surface activities and perennial and which have issued NPDES permits for streams below fills and impounding intermittent streams for purposes of discharges from sediment ponds located structures, and the classification of regulation under SMCRA. in a perennial or intermittent stream. stream segments between the toe of the 5. Paragraph (c) Inherent in that practice is the fill and the sediment pond assumption that flows in the stream embankment. However, we believe this As proposed, paragraph (c) of sections segment between the toe of the fill and rule, as finalized here, is sufficiently 816.57 and 817.57 would have provided the sediment pond embankment are not flexible to accommodate any shift in that activities exempt from the considered to be waters of the United implementation of the Clean Water Act. prohibition on disturbance of the States. EPA and the Corps have adopted As stated in paragraph (f)(2) of sections surface of lands within 100 feet of policies classifying the stream segment 780.28 and 784.28 and paragraph (d) of waters of the United States must comply between the toe of the fill or sections 816.57 and 817.57, issuance of with paragraphs (b)(10)(B)(i) and (b)(24) impounding structure and the sediment a SMCRA permit does not relieve the of section 515 of the Act (or, for pond to be to be a channel conveying permittee of the obligation to comply underground mining operations, industrial waste water from the mining with all requirements of the Clean Water paragraphs (b)(9)(B) and (b)(11) of Act. section 516 of the Act) and the operation to a treatment facility before • discharge into waters of the United Erosion protection zones regulations implementing those States.4 These waste treatment systems These features, which are primarily provisions of the Act. However, the the result of recent changes in West referenced statutory provisions and 4 See, e.g., a letter dated March 1, 2006, from Virginia regulations (see West Virginia regulations apply to all surface coal Benjamin Grumbles, Assistant Administrator of the Code of State Regulations 38–2– mining and reclamation operations, not Environmental Protection Agency, to John Paul 14.14.g.2.) and are intended to promote just to those described in the proposed Woodley, Assistant Secretary of the Army (Civil fill stability, are considered part of the Works), which states that, for surface coal mining rule. Therefore, as adopted in the final operations in the Appalachian Mountain states, the fill. No rule change is needed. rule, paragraph (c) applies to all stream segment between the toe of the fill and the • Diversions activities conducted either in perennial sedimentation pond will be considered part of the With the exception of stream-channel or intermittent streams or within 100 waste treatment system, not waters of the United States, for purposes of the Clean Water Act. The diversions, which are already included feet of those streams. sedimentation pond must be constructed as close to in paragraph (b)(1), the construction of Paragraphs (c)(1) through (c)(4) of the the toe of the fill as practicable to minimize diversions generally does not involve final rule reference and describe the temporary adverse environmental impacts placement of fill material in a perennial OSM regulations, other than the stream associated with construction and operation of the waste treatment system. The letter notes that, as a or intermittent stream or other direct buffer zone rules, that most directly condition of approval, the Corps also requires that disturbance of the stream. Therefore; we relate to implementation of sections the stream segment be restored as soon as the see no reason to add them to the list of 515(b)(10)(B)(i) and (b)(24) and mining operation is completed and the pond is no activities in paragraph (b). 516(b)(9)(B) and (b)(11) of SMCRA. longer needed for treatment purposes. At that time, the stream segment will once again be classified as Those regulations include the waters of the United States. Therefore, based on this permittee to maintain an undisturbed buffer for the requirement in 30 CFR 816.41(d)(1) and provision of the letter, it may be prudent for the affected stream segment to the extent possible. 817.41(d)(1) that activities be conducted

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according to the plan approved under SMCRA. See 72 FR 48910, August 24, provides the SMCRA regulatory 30 CFR 780.21(h) or 784.14(g) and that 2007. authority with jurisdiction over the earth materials, groundwater discharges, Commenters were divided on this Clean Water Act or the authority to and runoff be handled in a manner that issue. The U.S. Fish and Wildlife determine when a permit or prevents, to the extent possible using Service and the Geologic and Water authorization is required under the the best technology currently available, Resources Divisions of the National Park Clean Water Act. Under paragraphs (a) additional contributions of suspended Service supported adoption of a rule and (a)(2) of section 702 of SMCRA, solids to streamflow outside the permit requiring a permit condition under nothing in SMCRA (and, by extension, area; and otherwise prevents water SMCRA. The EPA also supported regulations adopted under SMCRA) may pollution. They also include the adoption of a requirement for a permit be construed as superseding, amending, requirement in 30 CFR 816.45(a) and condition under SMCRA, stating that modifying, or repealing the Clean Water 817.45(a) that appropriate sediment such a requirement would enhance Act or any state laws or state or federal control measures be designed, compliance with Clean Water Act rules adopted under the Clean Water constructed, and maintained using the requirements. One state regulatory Act. In addition, nothing in the Clean best technology currently available to authority opposed adoption of a Water Act vests SMCRA regulatory prevent, to the extent possible, requirement for a permit condition; the authorities with the authority to enforce additional contributions of sediment to commenter instead recommended that compliance with the permitting and streamflow or to runoff outside the coordination of permitting and certification requirements of that law. enforcement of Clean Water Act permit area. And they include the J. Sections 816.71 and 817.71 General requirement in 30 CFR 816.97(a) and requirements be left to the states and the Corps. Comments from the mining Requirements for Disposal of Excess 817.97(a) that the operator must, to the Spoil extent possible using the best industry strongly opposed adoption of a technology currently available, rule that would impose a permit As proposed, we have added a new minimize disturbances and adverse condition under SMCRA, expressing the paragraph (a)(4) to sections 816.71 and impacts on fish and wildlife and related fear that it would only result in more 817.71 to implement, in part, the environmental values and achieve duplication and confusion in regulation requirements of sections 515(b)(24) and enhancement of those resources where of the coal mining industry. One 516(b)(11) of the Act. Sections practicable. In the final rule, we are commenter stated that, if the permittee 515(b)(24) and 516(b)(11) require that surface coal mining and reclamation adding paragraph (c)(4) to incorporate a needs to comply with the Clean Water operations be conducted to ‘‘minimize reference to 30 CFR 816.97(f) and Act, then the requirements of that disturbances and adverse impacts of the 817.97(f). Those rules require that the statute should be enforced according to operation on fish, wildlife, and related operator avoid disturbances to, enhance the statutory scheme specified in the environmental values’’ ‘‘to the extent where practicable, restore, or replace Clean Water Act. After reviewing the comments, we possible using the best technology wetlands, habitats of unusually high have decided not to adopt proposed currently available.’’ value for fish and wildlife, and riparian paragraph (d). Instead, we are adopting The new paragraph requires that vegetation bordering rivers, streams, new paragraph (a)(2), which provides excess spoil be placed in designated lakes, and ponds. that surface activities, including those disposal areas within the permit area in Paragraph (c) does not impose any activities identified in paragraphs (b)(1) a controlled manner to minimize new requirements. Instead, it reiterates through (b)(4) of sections 816.57 and disturbances to and adverse impacts on that the referenced rules apply to all 817.57, may be authorized in perennial fish, wildlife, and related environmental surface coal mining and reclamation or intermittent streams only where those values to the extent possible using the operations, including those activities activities would not cause or contribute best technology currently available. that occur in or within 100 feet of a to the violation of applicable State or As previously discussed in Parts perennial or intermittent stream under Federal water quality standards VIII.D. and VIII.E. of this preamble, we paragraph (b) of sections 816.57 and developed pursuant to the Clean Water have moved paragraphs (b)(1) (design 817.57. Act, as determined through certification certification), (c) (location), and (d)(1) 6. Proposed Paragraph (d) under section 401 of the Clean Water (foundation investigations) of the former Act or a permit under section 402 or 404 version of sections 816.71 and 817.71 to Proposed paragraph (d) of sections of the Clean Water Act. We are also sections 780.35 and 784.19 as part of 816.57 and 817.57 provided that the adopting a new paragraph (d)(2) of our effort to place provisions that are permittee may not initiate any activities sections 780.28 and 784.28. That solely design considerations and under paragraph (b) until the permittee paragraph provides that before requirements in our permitting obtains all necessary certifications and approving a permit application in which regulations rather than in the authorizations under sections 401, 402, the applicant proposes to conduct performance standards. and 404 of the Clean Water Act, 33 surface activities in a perennial or As proposed, in this final rule we are U.S.C. 1341, 1342, and 1344. The intermittent stream, the regulatory deleting the last sentence of paragraph preamble to the proposed rule stated authority must include a permit (d)(2) of the former version of sections that we considered that provision condition requiring a demonstration of 816.71 and 817.71. That sentence informational. We requested comment compliance with the Clean Water Act in required a stability analysis for rock toe on whether the provision should remain the manner specified in paragraph (a)(2) buttresses and keyway cuts. We have informational or whether we should of sections 816.57 and 817.57 before the deleted it because it duplicates revise our rules to require its inclusion permittee may conduct those activities. requirements included in sections as a SMCRA permit condition, which This requirement applies to the extent 780.35 and 784.19. Final paragraph (d) would mean that the prohibition on that the activities require authorization of sections 816.71 and 817.71 retains the initiation of activities before obtaining or certification under the Clean Water requirement that keyway cuts or rock- all necessary Clean Water Act Act. toe buttresses be constructed to ensure authorizations and certifications would However, in adopting these rules, we fill stability when the slope in the be independently enforceable under reiterate that nothing in SMCRA disposal area exceeds either 2.8h:1v (36

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percent) or any lesser slope designated We are not moving the requirements One comment from a State regulatory by the regulatory authority based on of section 817.71(k) to another part of authority supported this approach. local conditions. our rules because we do not find it In addition, section 515(b)(1) of As proposed, this final rule necessary to impose the design SMCRA requires that surface coal redesignates former paragraph (b)(2) of requirements for excess spoil fills mining operations be conducted ‘‘so as sections 816.71 and 817.71 as paragraph (which are permanent structures) on to maximize the utilization and (b) of those sections. It revises that temporary spoil storage structures and conservation of the solid fuel resource paragraph to require that the fill not support facilities, such as the benches to being recovered so that reaffecting the only be designed to attain a minimum which section 817.71(k) applies. Nor do land in the future through surface coal static safety factor of 1.5 as required by we find it necessary or appropriate to mining can be minimized.’’ We believe the former version of these rules, but limit those benches to 400 feet in length. that the ‘‘to the extent possible’’ clause that the fill actually be constructed to Bench length and configuration are in paragraphs (b)(10)(B)(i) and (b)(24) of attain that safety factor. This change is more appropriately determined by section 515 of SMCRA is properly consistent with section 515(b)(22)(A) of operational, topographic, geologic, and interpreted in part by applying the the Act, which requires that all excess other site-specific considerations. environmental protection requirements spoil be placed in a way that ensures However, the regulatory authority has of those paragraphs so as to give full mass stability and prevents mass the right to impose design and force and effect to the coal recovery movement. construction requirements on a case-by- performance standard in section Consistent with the proposed rule, we case basis when it determines that those 515(b)(1), as reflected in the regulations are adding a new paragraph (c) to requirements are a necessary at 30 CFR 816.59 and 817.59. As adopted in this final rule, sections sections 816.71 and 817.71 to require prerequisite to making the permit 780.25(d)(1), 780.35(a)(3), 780.16(d)(1), that the permittee construct the fill in application approval findings specified and 784.19(a)(3) require that permit accordance with the design and plans in 30 CFR 773.15. applicants conduct an analysis of submitted under section 780.35 or In the preamble to the proposed rule, alternatives for excess spoil fills and 784.19 and approved as part of the we sought comment on (1) whether this coal mine waste disposal structures if permit. This provision emphasizes that approach is adequate to accomplish the those fills and structures involve the purposes and requirements of SMCRA, fills must be built on the sites selected placement of excess spoil or coal mine (2) whether we should codify the under section 780.35 or 784.19 in a waste in or within 100 feet of a sentence concerning the right of the manner consistent with the designs perennial or intermittent stream. Those regulatory authority to impose submitted under those sections and rules provide that, when evaluating all approved as part of the permit. It is a requirements, or (3) whether more reasonably possible alternatives, permit companion to the new provisions specific rules are needed or appropriate. applicants must select the alternative concerning environmental protection We received no comments in response that would have the least overall and excess spoil minimization that we to this request. adverse environmental impact. The final have added to sections 780.35 and We also received no comments on any rules specify that an alternative is 784.19. of the proposed changes to sections reasonably possible if it conforms to the Finally, as proposed, we are removing 816.71 and 817.71. safety, engineering, design, and former section 817.71(k), which K. What does the phrase ‘‘to the extent construction requirements of the provided that spoil resulting from face- possible’’ mean in these rules? regulatory program; is capable of being up operations for underground coal done after consideration of cost, mine development may be placed at Sections 515(b)(10)(B)(i), 515(b)(24), logistics, and available technology; and drift entries as part of a cut-and-fill 516(b)(9)(B), and 516(b)(11) of SMCRA is consistent with the coal recovery structure if that structure is less than include the proviso that the provisions of section 816.59 or 817.59. 400 feet in length and is designed in requirements of those sections apply ‘‘to In other words, nothing in the rule accordance with section 817.71. We the extent possible.’’ Some of the rules should be construed as elevating removed this paragraph because spoil that we are adopting today include environmental concerns over safety excavated as part of face-up operations similar language because they are based considerations, as prohibiting the and used to construct a mine bench is upon those provisions of the Act. Given conduct of surface coal mining not excess spoil. As defined in 30 CFR the wide array of circumstances to operations that are not otherwise 701.5, excess spoil consists of spoil which these requirements apply and the prohibited under SMCRA or other laws material disposed of in a location paucity of legislative history, we did not or regulations, or as requiring outside the mined-out area, but it does propose and are not adopting a consideration of unreasonably not include spoil needed to achieve definition of the phrase ‘‘to the extent expensive or technologically infeasible restoration of the approximate original possible’’ as part of this rulemaking. alternatives. contour. In most cases, spoil used to Instead, we and the State regulatory The portion of our rules that refers to construct the bench for an underground authorities will continue to determine ‘‘consideration of cost, logistics, and mine will later be used to reclaim the the meaning of that phrase on a case-by- available technology’’ is derived from face-up area when the underground case basis in a manner consistent with the EPA regulations at 40 CFR mine is finished. That is, the bench will section 102(f) of SMCRA. That section 230.10(a)(2), which define a practicable be regraded to cover the mine entry and of the Act provides that one of the alternative for purposes of section 404 eliminate any highwall once mining is purposes of SMCRA is to ‘‘assure that of the Clean Water Act. In interpreting completed and the bench is no longer the coal supply essential to the Nation’s this provision, the EPA/COE needed for mine offices, parking lots, energy requirements and to its economic memorandum entitled ‘‘Appropriate equipment storage, conveyor belts, and and social well-being is provided and Level of Analysis Required for other mining-related purposes. strike a balance between protection of Evaluating Compliance with the Section Consequently, this paragraph of the the environment and agricultural 404(b)(1) Guidelines Alternatives regulations does not belong in a section productivity and the Nation’s need for Requirements’’ states that ‘‘[t]he devoted to disposal of excess spoil. coal as an essential source of energy.’’ determination of what constitutes an

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unreasonable expense should generally have decided not to incorporate those avoid confusion on the part of readers consider whether the projected cost is provisions as part of our regulations. of the Code of Federal regulations, we substantially greater than the costs are removing paragraph (b)(2) of L. What does the phrase ‘‘best normally associated with this particular sections 816.46 and 817.46 as part of technology currently available’’ mean in type of project.’’ We have included this rulemaking. these rules? similar language in paragraph On November 13, 1990 (55 FR 47430– (d)(1)(ii)(B) of sections 780.25 and Our definition of ‘‘best technology 47435), we proposed to revise 30 CFR 784.16 and paragraph (a)(3)(ii)(B) of currently available’’ at 30 CFR 701.5 816.45, 817.45, 816.46(b)(2), and sections 780.35 and 784.19 because (1) embraces a wide range of activities, 817.46(b)(2) to reestablish siltation the concept of a practicable alternative including those that may not be in structures as the best technology for purposes of section 404 of the Clean routine use, if the regulatory authority currently available for sediment control Water Act is in some ways analogous to determines they are currently available on surface coal mining and reclamation the determination of reasonably possible and will work. As such, it is sufficiently operations in areas receiving more than alternatives under this rule, and (2) the flexible to include new techniques 26 inches of average annual principle is consistent with the phrase developed over time that were not precipitation. Regulatory authorities in ‘‘to the extent possible’’ in sections contemplated or in use at the time the areas with less than that amount of 515(b)(24) and 516(b)(11) of SMCRA. On definition was promulgated. Similarly, precipitation would have been able to the other hand, the fact that one it is sufficiently flexible to include specify alternative sediment control alternative may cost somewhat more techniques that are not contemplated or measures as the best technology than a different alternative does not in use today. Consequently, we cannot currently available through the program necessarily warrant exclusion of the state with specificity what measures amendment process. Most commenters more costly alternative from would constitute the best technology opposed that approach and we never consideration. See Part VI.D. of this currently available in all situations. adopted the proposed rule, in part preamble for a more extensive Our regulations at 30 CFR 816.45 and because it could have inhibited the discussion of the rationale for our use of 817.45 address sediment control development and implementation of the term ‘‘reasonably possible’’ and its measures and requirements for all new and innovative practices to control consistency with statutory provisions. surface coal mining and reclamation sediment. We decided that the On January 7, 2004 (69 FR 1036, operations. Paragraph (a)(1) of those regulatory authority should retain the 1047), we proposed to adopt the phrase sections reiterates the requirements of discretion to determine what sediment ‘‘to the maximum extent possible’’ as sections 515(b)(10)(B)(i) and control practices constitute the best 516(b)(9)(B) of SMCRA concerning part of 30 CFR 780.18(b)(3). Several technology currently available. commenters suggested that we replace prevention of additional contributions In addition to the sediment control ‘‘possible’’ with ‘‘practicable’’ or of suspended solids to streamflow or regulations at 30 CFR 816.45 and 817.45 ‘‘technologically and economically runoff outside the permit area. and the definition of ‘‘best technology feasible.’’ Other commenters stated that Paragraph (b) of those rules lists various currently available’’ in 30 CFR 701.5 the proposed language was too vague, measures that may be employed to discussed above, the legislative history but they did not provide suggested accomplish the sediment control of section 515(b)(15)(B)(i) of SMCRA replacement language. requirements of paragraph (a). provides some guidance as to what At one time, paragraph (b)(2) of 30 In developing the proposed rule that measures Congress considered to be the CFR 816.46 and 817.46 prescribed we published on August 24, 2007, we best technology currently available at decided not to propose any of the siltation structures (sedimentation ponds and other treatment facilities that time to control sedimentation from suggestions that commenters submitted minesites: on the 2004 proposed rule. The with point-source discharges) as the best replacement language suggested by technology currently available for Similarly, technology exists to prevent several commenters is no less vague or sediment control. However, that increased sediment loads resulting from paragraph was struck down upon mining from reaching streams outside the more specific than the statutory phrase permit area. Sediment or siltation control ‘‘to the extent possible.’’ Nevertheless, judicial review because the court found systems are generally designed on a mine-by- we again solicited suggestions on how that we did not articulate a sufficient mine basis which could involve several we could define the phrase ‘‘to the basis for the rule under the drainage areas or on a small-drainage-area extent possible.’’ We received no Administrative Procedure Act. In basis which may serve several mines. There suggestions. particular, the court held that the are a number of different measures that when We also sought comment on whether preamble to the rulemaking did not applied singly or in combination can remove we should incorporate 40 CFR 230.70 adequately discuss the benefits and virtually all sediment or silt resulting from drawbacks of siltation structures and the mining operation. A range of individual through 230.75 (part of the 404(b)(1) siltation control measures includes: erosion Guidelines) as part of our rules to alternative sediment control methods and sediment control structures, chemical provide guidance in interpreting ‘‘to the and did not enable the court ‘‘to discern soil stabilizers, mulches, mulch blankets, and extent possible.’’ We received one the path taken by [the Secretary] in special control practices such as adjusting comment supporting incorporation and responding to commenters’ concerns’’ the timing and sequencing of earth several comments opposing that action. that siltation structures in the West are movement, pumping drainage, and One commenter pointed out the not the best technology currently establishing vegetative filter strips. practical and legal problems and available. See In re: Permanent Surface H.R. Rep. No. 95–218 at 114 (April 22, difficulties in having the SMCRA Mining Regulation Litigation II, Round 1977). regulatory authority interpret and III, 620 F. Supp. 1519, 1566–1568 Furthermore, in Directive TSR–3, enforce Clean Water Act requirements. (D.D.C. July 15, 1985). On November 20, ‘‘Sediment Control Using the Best In view of those problems, and the fact 1986 (51 FR 41961), we suspended the Technology Currently Available,’’ dated that our review indicates that 40 CFR regulations that the court struck down. November 2, 1987, we state that we 230.70 through 230.75 would have Therefore, those regulations are no anticipate ‘‘that in most cases relatively little relevance to surface coal longer dispositive in determining the sedimentation ponds or some other mining and reclamation operations, we best technology currently available. To siltation structure will be BTCA [the

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best technology currently available]’’ for state and federal fish and wildlife, land safety, or state, local, or tribal sedimentation control. Finally, the management, and conservation agencies governments or communities. preamble to the 1990 proposed rule lists will be a useful resource in assisting the b. This rule will not create a serious numerous literature resources permittee and the regulatory authority inconsistency or otherwise interfere concerning the best technology in determining the best technology with an action taken or planned by currently available for sedimentation currently available under 30 CFR another agency. control. See the footnotes at 55 FR 780.16, 784.21, 816.97(a), and 817.97(a). c. This rule will not alter the 47431–47433, November 13, 1990. The For example, the Bureau of Land budgetary effects of entitlements, grants, preamble notes that ‘‘[t]he effectiveness Management within the U.S. user fees, or loan programs or the rights of specific practices may be restricted to Department of the Interior has or obligations of their recipients. specific areas and be dependent upon developed best management practices With respect to the assessment variables such as geomorphology, relating to stream crossings (see http:// required by section 6(a)(3)(B)(ii) of the hydrology, climate and engineering www.blm.gov/wo/st/en/prog/energy/ executive order, the preamble discusses design.’’ Id. at 47342, col. 1. oil_and_gas/ how the regulatory action is consistent In addition, the outcome of Ohio best_management_practices/ with the statutory mandate in sections Valley Environmental Council v. U.S. technical_information.html) and the 515(b) and 516(b) of SMCRA to prevent, Army Corps of Engineers, Civ. Action Utah Division of Oil, Gas and Mining to the extent possible using the best No. 3:05–0784 (S.D. W. Va., June 13, has published ‘‘The Practical Guide to technology currently available, 2007), may affect what we consider to Reclamation in Utah’’ (see https:// additional contributions of suspended be the best technology currently fs.ogm.utah.gov/PUB/MINES/ solids to streamflow or runoff outside available for sediment control below Coal_Related/RecMan/ the permit area and to minimize, to the fills and impounding structures. The Reclamation_Manual.pdf). Chapter 2 of extent possible using the best district court held that the stream the latter document discusses stream technology currently available, segment between the toe of the fill or restoration and streambank disturbances and adverse impacts on fish, wildlife, and related environmental impounding structure and the sediment bioengineering. pond embankment must be considered In some cases, the best technology values. To the extent permitted by law, waters of the United States rather than currently available may consist the regulatory action also promotes the part of a waste treatment system primarily of minimizing the amount of President’s priorities, including energy designed to remove sediment prior to land and waters affected. We anticipate production, and avoids undue interference with state, local, and tribal discharge into waters of the United that the analysis of alternatives and site governments in the exercise of their States below the sediment pond. That selection requirements that we are governmental functions. See Parts IX.B. decision is on appeal to the U.S. Court adopting as part of the permitting and IX.G. of this preamble. of Appeals for the Fourth Circuit as of requirements for disposal of coal mine the date of writing of this preamble. We anticipate that the principal waste and excess spoil in sections benefits of this rule will be (1) As previously noted, SMCRA does not 780.25(d)(1), 784.16(d)(1), 780.35(a)(3), limit use of the term ‘‘best technology minimization of the adverse and 784.19(a)(3) would be the primary environmental impacts stemming from currently available’’ to the sediment means of demonstrating use of the best control requirements of sections the construction of excess spoil fills and technology currently available for those 515(b)(10)(B)(i) and 516(b)(9)(B). coal mine waste impoundments and activities. The excess spoil Sections 515(b)(24) and 516(b)(11) of fills and (2) clarification of the minimization and fill design and SMCRA also require use of the best circumstances in which the prohibition construction requirements of paragraphs technology currently available to in the stream buffer zone rule applies. (a)(1) and (a)(2) of sections 780.35 and minimize disturbances and adverse As discussed in the final environmental 784.19 are also significant. In addition, impacts on fish, wildlife, and related impact statement, we cannot quantify construction methodology and mining environmental values to the extent these benefits. and reclamation techniques may play a possible. Sections 515(b)(24) and The revisions are not expected to have role. 516(b)(11) are primarily implemented an adverse economic impact on states by the fish and wildlife protection IX. Procedural Matters and Required and Indian tribes or the regulated performance standards at 30 CFR 816.97 Determinations industry, although some of the and 817.97. Like the other regulations regulatory changes will result in an discussed in this part of the preamble, A. Executive Order 12866—Regulatory increase in the costs and burdens placed those performance standards and the Planning and Review on coal operators and state regulatory related permitting requirements at 30 This rule is considered a ‘‘significant authorities. Based on surveys conducted CFR 780.16 and 784.21 apply to all regulatory action’’ under Executive to prepare the supporting statements for aspects of surface coal mining and Order 12866 and is subject to review by this rule under the Paperwork reclamation operations, including those the Office of Management and Budget Reduction Act, we estimate that the activities that are conducted in (OMB) because it may raise novel legal total annual cost increase for operators perennial and intermittent streams and or policy issues, as discussed in the will be approximately $240,500, while activities that occur on the surface of preamble. the total annual cost increase for state lands within 100 feet of perennial or With respect to other determinations regulatory authorities will be intermittent streams. required under Executive Order 12866— approximately $24,200. These increases The preamble to 30 CFR 816.97(a) and a. This rule will not have an annual are a result of the requirement to 817.97(a) states that those rules ‘‘allow effect of $100 million or more on the prepare and document the plans, an operator to consult any technical economy. As discussed in the final analyses and findings required by the authorities on conservation methods to environmental impact statement and, to revised rules. The cost increases will assure their compliance with the a lesser extent, this preamble, it will not principally affect those coal operators statutory requirement for use of the best adversely affect in a material way the and states (Kentucky, Virginia, and West technology currently available.’’ 48 FR economy, productivity, competition, Virginia) located in the steep-slope 30317, June 30, 1983. We anticipate that jobs, the environment, public health or terrain of the central Appalachian

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coalfields, where the bulk of excess Classification System Codes (NAICS) to mine site. Kentucky, Virginia, West spoil is generated. Because all establish size standards for small Virginia, and Tennessee account for regulatory authorities in the businesses in the coal mining industry. 98.6 percent of the total number of Appalachian coalfields have The NAICS classification for the coal excess spoil fills approved nationwide implemented policies to minimize the mining industry is code 2121. Subsets of in permits issued between October 2001 volume of excess spoil disposed of this sector include Bituminous Coal and and June 2005. Thus, the baseline of outside the mined-out area, and because Lignite Surface Mining (code 212111), potentially impacted entities has been many operators already conduct Bituminous Coal Underground Mining limited to the coal-producing region of alternative analyses to satisfy (code 212112), and Anthracite Mining central Appalachia, which includes requirements under section 404 of the (code 212113). eastern Kentucky, Virginia, southern Clean Water Act, we expect no The size standard established for each West Virginia, and Tennessee. significant additional costs of of these categories is 500 or fewer implementing these regulatory changes. employees for each business concern According to MSHA data, there were There may be other minor increases in and associated affiliates. SBA considers 389 coal-mining firms with fewer than costs associated with the new business concerns to be affiliates when 500 employees operating in central permitting requirements, in particular one concern ‘‘controls or has the power Appalachia in 2006. That number is the alternatives analysis required for the to control the other, or a third party or approximately 23 percent of the total disposal of excess spoil and coal mine parties controls or has the power to number of small coal-mining firms in waste in or near perennial and control both.’’ the United States. The following data intermittent streams. The U.S. Census Bureau maintains summarize coal production and statistics related to business employment in central Appalachia: B. Executive Order 13211—Actions employment, payroll and employment Concerning Regulations That size categories for each NAICS Total coal production: 236,127,000 Significantly Affect Energy Supply, description. Census Bureau data for tons. Distribution, or Use 2005 show a total of 735 coal-mining Gross revenue from coal production: This rule is not considered a firms employing a total of 74,260 $11,275,064,250 (average price: $47.75 significant energy action under persons. Of those firms, 672 had fewer per ton). Executive Order 13211. The revisions than 500 employees. Those firms Coal-mining firms with fewer than contained in this rule will not have a employed a total of 22,809 persons. significant effect on the supply, Data available from MSHA and the 500 employees: 389. distribution, or use of energy. Energy Information Administration Coal produced by those firms: indicate that in 2006, there were 806 87,447,368 tons. C. Regulatory Flexibility Act coal-mining firms employing a total of Gross revenue from those firms: The Department of the Interior 81,891 persons and producing a total of $4,175,611,822 (average price: $47.75 certifies that this rule will not have a 1,162,750,000 tons of coal. Within that per ton). significant economic impact on a total, there were 775 coal-mining firms substantial number of small entities with fewer than 500 employees. Those Section 507(c) of SMCRA provides under the Regulatory Flexibility Act (5 firms employed a total of 28,749 persons that an operator does not qualify for the U.S.C. 601 et seq.). The revisions are and produced a total of 247,400,000 small operator assistance program if the expected to have only minimal adverse tons of coal. total annual production at all locations economic impact on the regulated Thus, MSHA data indicate that in attributed to that operator exceeds industry, including small entities. 2006 small coal-mining firms comprised 300,000 tons. We determined that 325 of Further, the rule will produce no 96 percent of the total number of coal- the 389 firms within central Appalachia adverse effects on competition, mining firms in the United States. Those that MSHA identified as small entities employment, investment, productivity, firms employed 35 percent of the total produced less than 300,000 tons of coal innovation, or the ability of United number of persons engaged in coal per year. States enterprises to compete with mining nationwide and produced 21 foreign-based enterprises in domestic or percent of the nation’s coal. Number of Potentially Affected Entities export markets. This determination is Baseline of Potentially Affected Entities based upon the following analysis: According to MSHA data, in 2006 the The principal change that could 389 small coal-mining entities in central Baseline of Small Coal Mining Entities impact small coal mining firms is the Appalachia operated a total of 765 The Small Business Administration requirement to minimize the volume of mines, as shown in this table: (SBA) uses the North American Industry excess spoil generated at a particular

Percent of total number of mines Number of small Number of mines operated by State coal-mining enti- operated by small entities in ties small entities central Appa- lachia

Kentucky ...... 224 397 51 Tennessee ...... 10 35 5 Virginia ...... 52 107 14 West Virginia ...... 103 226 30

Total ...... 389 765 100

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We conducted an evaluation of spoil created and the adverse impacts of substantially reducing the length of permits issued in West Virginia between excess spoil fills and coal mine waste stream segments impacted. October 2001 and June 2005 to disposal facilities on fish, wildlife, and We have analyzed the impact on determine the number of stream miles related environmental values. Whenever eastern Kentucky small coal mine impacted by excess spoil and coal mine a permit application proposes to place operators in more detail because more waste fills permitted during that time. excess spoil or coal mine waste in or data is available from that state. We We used a sample of 110 of the 270 within 100 feet of a perennial or estimate that coal mines operated by the permits issued in West Virginia during intermittent stream, the final rule 143 small coal-mining entities in that period. The sample included 28 requires the permit applicant to identify Kentucky with excess spoil fills will permits for underground mining a range of reasonably possible generate 32 percent (114,514,880 cubic operations and 82 permits for surface alternatives and select the alternative yards) of the 357,829,000 cubic yards of mines and other types of mining-related with the least overall adverse impact on excess spoil approved in all surface operations regulated under SMCRA. A fish, wildlife, and related environmental mine permits issued in 2006 in review of that data indicated that 4 values. In determining whether an Kentucky. If we assume that the percent (4) of all permits had refuse alternative is reasonable, the applicant requirement to minimize the placement disposal facilities, 29 percent (24) of the must consider cost, logistics, and the of spoil outside the mined-out area permits for surface mines had excess availability of technology. would require small entities to reduce spoil fills, and 4 percent (1) of the Based on discussions with mining the volume of excess spoil fills by 25 permits for underground mines had an consultants, developing the alternatives percent, then those entities will have to excess spoil fill. analysis for the permit application will retain approximately 28,628,720 To collect information on excess cost between $10,000 and $15,000 per additional cubic yards within the mined spoil, we conducted an evaluation of 92 permit. However, most operators will out area for the permits that they new permits issued in Kentucky during incur little to no additional cost to received in 2006. Further assuming that 2006. The data indicate that 64 percent provide the alternatives analysis the unit cost for placing this amount of of small surface mining operations have because the Corps of Engineers usually excess spoil within the mined-out area permits authorizing construction of requires a similar analysis to satisfy would be the same as in West Virginia excess spoil fills. Those fills will Clean Water Act requirements. (50 cents to one dollar per cubic yard), generate 32 percent of the total With respect to operational costs, the total cost of this placement to small projected volume of fill material to be Section IV of a draft environmental coal-mining entities in Kentucky will produced by surface mines in Kentucky. impact statement 5 issued in 2003 by the range from $14 million to $28 million, In addition, 67 percent of the small U.S. Environmental Protection Agency, or an average of $98,000 to $196,000 per underground operations have permits the U.S. Army Corps of Engineers, the small entity with excess spoil. authorizing construction of excess spoil U.S. Fish and Wildlife Service, OSM, We do not have sufficient data to fills. Those fills will generate 91 percent and the West Virginia Department of perform a similar calculation for small of the total projected volume of fill Environmental Protection contains the coal-mining entities in the other three material to be produced by underground following discussion of fill states. However, we can use the average mines in Kentucky. minimization costs: cost per small entity with excess spoil Extrapolating the data from the Fill minimization may increase operational in Kentucky to project a reasonable reviews of permits in Kentucky and costs to the mining operator because spoil range of costs for small coal-mining West Virginia to all mines operated by that must be returned to the mine site has entities in the remaining central small entities in central Appalachia, we higher handling costs than the current Appalachian states. Specifically, the 48 estimate that the rule will impact 191 of practice of end-dump valley fill construction. potentially impacted small entities in the 389 small coal-mining entities in * * * While not a direct comparison, and Tennessee, Virginia, and West Virginia central Appalachia, based on the somewhat dated, the regulatory analysis that could incur an additional cost of $4.7 assumption that 64% (143) of the small we used for the permanent program million to $9.4 million. regulations indicated that placing spoil in Combining the projections for the 143 entities in Kentucky will construct lifts versus end-dumping to build valley fills excess spoil fills and that 29% (48) of added 17 cents/ton to the cost of mining coal small entities in Kentucky and the 48 the small entities in West Virginia, in central Appalachia. small entities in other states results in Virginia, and Tennessee will do so. an estimated total cost ranging between The same document estimates the cost $18.7 million and $37.4 million for all Economic Impact on Potentially of compliance with a West Virginia 191 small entities projected to be Affected Entities Department of Environmental Protection impacted. We do not believe there will be any policy intended to minimize the volume In the aggregate, the 224 small coal- significant economic impact upon small of excess spoil at 50 cents to one dollar mining entities in eastern Kentucky entities. Only two new types of for each cubic yard of spoil that, as a produced 41,587,096 tons of coal in compliance costs would affect operators result of the policy, is retained on the 2006. At an average price of $47.75 per of coal mines: costs of an alternatives mined-out area rather than placed in an ton, the gross revenue from that analysis for disposal of coal mine waste excess spoil fill. We will use the West production equals $1,985,783,800, with and/or excess spoil; and costs of Virginia estimate as the cost of $1,270,901,653 of that amount minimizing the volume of excess spoil compliance with the fill minimization attributable to the 64% (143) of the to the extent possible. It is not possible provisions of this final rule. However, small entities that we project will be to quantify compliance costs for all some of those costs are offset by reduced impacted by this rule. Thus, the potentially affected small entities mitigation expenses under other state estimated cost of compliance with the because each mine site is unique and and federal laws because compliance requirement to minimize the placement the operational costs of complying with with the policy typically results in of spoil outside the mined-out area is the rule will vary. projected to range from 1.1 percent to 5 ‘‘Mountaintop Mining/Valley Fills in Under the final rule, an operator must Appalachia Draft Programmatic Environmental 2.2 percent of the gross revenue for the design and construct a mine to Impact Statement’’ (EPA 9–03–R–00013, EPA 143 potentially impacted eastern minimize both the volume of excess Region 3, June 2003). Kentucky small coal-mining entities.

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At the same average price of $47.75 industries, Federal, state, or local J. Paperwork Reduction Act per ton, gross revenue in 2006 for the government agencies, or geographic other 165 small coal-mining entities in regions. In accordance with 44 U.S.C. 3501 et central Appalachia equals c. Have significant adverse effects on seq., we sought comments on the $2,985,783,834, of which $635,050,116 competition, employment, investment, collections of information contained in is attributable to the 29% (48) of those productivity, innovation, or the ability the proposed rule for modifications to entities that we project will be impacted of U.S.-based enterprises to compete 30 CFR parts 780, 784, 816, and 817. We by this rule. Therefore, at an average with foreign-based enterprises. received no comments from the public price of $47.75 per ton, gross revenue in regarding these collections of E. Unfunded Mandates 2006 totals $1,905,951,769 for the 191 information. The Office of Management central Appalachian small entities that This rule will not impose an and Budget has approved the we project will be impacted by this rule. unfunded mandate on state, local, or information collection activities for Extrapolating this data to the central tribal governments or the private sector these parts and assigned control Appalachian region as a whole, we of more than $100 million per year. The numbers 1029–0128 for sections 780.25, estimate the cost of compliance will rule will not have a significant or 780.28, and 780.35 (to be consolidated range between $18.7 million and $37.4 unique effect on state, tribal, or local into 1029–0036 upon approval); 1029– million, which translates to a range of governments or the private sector. A 0039 for part 784; and 1029–0047 for 0.98 percent to 1.9 percent of the total statement containing the information parts 816 and 817. The expiration date gross revenue ($1,905,951,769) required by the Unfunded Mandates for these collections of information is generated by potentially impacted small Reform Act (2 U.S.C. 1534) is not December 31, 2011. These collections coal-mining entities in central required. estimate the burden as follows: Appalachia. This estimate is based on F. Executive Order 12630—Takings 30 CFR Part 780, Sections 780.25, the assumption that only 48 (29%) of 780.28, and 780.35 the 165 small coal-mining entities in This rule does not affect property Tennessee, Virginia, and West Virginia rights. It governs how coal may be Title: Surface Mining Permit produce excess spoil, while 64% (143) mined rather than whether it may be Applications-Minimum Requirements of the 224 Kentucky small coal-mining mined. For this reason and based on the for Reclamation and Operation Plan. entities do so. discussion in the preamble and the OMB Control Number: 1029–0128 (To All regulatory authorities in central analysis in the final environmental be consolidated into 1029–0036). Appalachia have already implemented impact statement, we have determined Summary: Section 506(a) of SMCRA, policies to minimize the volume of that the rule will not have significant 30 U.S.C. 1256(a), requires that persons excess spoil placed outside the mined- takings implications. out area, which means that, based on obtain a permit before conducting G. Executive Order 13132—Federalism surveys conducted under the Paperwork surface coal mining operations. Sections Reduction Act, we expect that operators This rule does not alter or affect the 507 and 508, 30 U.S.C. 1257 and 1258, will incur no significant additional costs relationship between states and the respectively, establish application to implement these regulatory changes. Federal Government. Therefore, the rule requirements, including a reclamation We received no comments on the will not have significant Federalism plan. The regulations in 30 CFR 780.25, proposed rule from small municipalities implications. Consequently, there is no 780.28, and 780.35 implement these (those with 50,000 or fewer residents) or need to prepare a Federalism statutory provisions with respect to coal local public entities such as water assessment. mine waste, excess spoil, authorities. We anticipate that the final impoundments, siltation structures, and H. Executive Order 12988—Civil Justice rule will not have any significant impact mining in or near perennial or Reform on those entities because, as discussed intermittent streams. The regulatory in the final environmental impact The Office of the Solicitor for the authority uses the information statement (EIS) for this rulemaking, we Department of the Interior has submitted in the permit application to do not expect that the rule will either determined that this rule will not determine whether the reclamation plan increase or decrease mining activities, unduly burden the judicial system and will achieve the reclamation and either nationwide or in central that it meets the requirements of environmental protection requirements Appalachia. Pages IV–165 and IV–166 of sections 3(a) and 3(b)(2) of the Executive of the Act and regulatory program. the final EIS discuss the lack of impact Order. Without this information, OSM and state regulatory authorities could not of this rule on the economy of the coal I. Executive Order 13175—Consultation mining regions. make the findings that section 510 of and Coordination With Indian Tribal SMCRA, 30 U.S.C. 1260, requires before D. Small Business Regulatory Governments a permit application for surface coal Enforcement Fairness Act We have evaluated the potential mining operations may be approved. This rule is not a major rule under 5 effects of this rule on federally Bureau Form Number: None. U.S.C. 804(2), the Small Business recognized Indian tribes and have Frequency of Collection: Once. Regulatory Enforcement Fairness Act. determined that no consultation or Description of Respondents: Based on the analysis in paragraphs A coordination is required because the Applicants for surface coal mining and C above, we have determined that rule will not have substantial direct permits and state regulatory authorities. the rule will not— effects on the relationship between the a. Have an annual effect on the Federal Government and Indian tribes Total Annual Respondents: 270 economy of $100 million or more. or on the distribution of power and applicants and 24 state regulatory b. Cause a major increase in costs or responsibilities between the Federal authorities. prices for consumers, individual Government and Indian tribes. Total Annual Burden Hours: 47,380.

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SUMMARY OF ANNUAL BURDEN TO RESPONDENTS FOR 30 CFR 780.15, 780.25, 780.28, AND 780.35

Hours cur- Section Number of Number of Hours per Hours per state Total hours rently ap- Difference applications state reviews application review requested proved

780.15 ...... 0 0 0 0 0 8 (8 ) 780.25 ...... 225 221 123 25 .2 33,250 14,155 19,095 780.28 ...... 270 264 10 10 5,340 0 5,340 780.35 ...... 170 168 27 25 8,790 12,660 (3,870)

Totals ...... 160 60 .2 47,380 26,823 20,557

Non-Labor Cost Burden: $202,000. prepare and submit an operation and underground coal mines and related reclamation plan for coal mining facilities. 30 CFR Part 784 activities as part of the application. The Bureau Form Number: None. Title: Underground Mining Permit regulatory authority uses this Frequency of Collection: Once. Applications-Minimum Requirements information to determine whether the Description of Respondents: for Reclamation and Operation Plan. plan will achieve the reclamation and Applicants for underground coal mine OMB Control Number: 1029–0039. environmental protection requirements permits and state regulatory authorities. Summary: Among other things, of the Act and regulatory program. Total Annual Respondents: 62 section 516(d) of SMCRA, 30 U.S.C. Without this information, OSM and applicants and 24 state regulatory 1266(d), in effect requires applicants for state regulatory authorities could not authorities. permits for underground coal mines to approve permit applications for Total Annual Burden Hours: 21,761.

INFORMATION COLLECTION SUMMARY FOR 30 CFR PART 784

Currently Industry Industry State re- State Total hours approved Program Change to Section responses hours per sponses hours per requested burden changes Adjustment burden response response hours hours

784.11 ...... 62 4 61 3 431 347 0 84 84 .12 ...... 25 6 24 2.25 204 198 0 6 6 .13 ...... 62 53 61 4.5 3,561 3,101 0 460 460 .14 ...... 62 40 61 8.75 3,014 3,063 0 ¥49 ¥49 .15 ...... 62 6 61 1 433 398 0 35 35 .16 ...... 62 16 61 10 1,602 814 801 ¥13 788 .17 ...... 1 6 1 5 11 99 ¥95 7 ¥88 .18 ...... 28 8 27 2 278 278 0 0 0 .19 ...... 47 9 46 12 975 583 369 23 392 .20 ...... 62 12 61 4 988 1,004 0 ¥16 ¥16 .21 ...... 62 4 61 8 736 245 0 491 491 .22 ...... 62 24 61 6 1,854 1,404 0 450 450 .23 ...... 62 40 61 7.5 2,938 2,954 0 ¥16 ¥16 .24 ...... 62 20 61 4.5 1,515 1,392 0 123 123 .25 ...... 34 6 33 4 336 346 0 ¥10 ¥10 .28 ...... 49 10 48 10 970 0 970 0 970 .29 ...... 62 16 61 5 1,297 331 0 966 966 .30 ...... 62 8 61 2 618 628 0 ¥10 ¥10

Totals ...... 21,761 17,185 2,045 2,531 4,576

Non-Labor Cost Burden: $612,106. performance standards of the regulatory Description of Respondents: Coal program approved under the Act. The mine operators, permittees, permit 30 CFR Parts 816 and 817 information collected is used by the applicants, and state regulatory Title: Permanent Program regulatory authority in monitoring and authorities. Performance Standards—Surface and inspecting surface coal mining and Total Annual Respondents: 4764 Underground Mining Activities. reclamation operations to ensure that permittees and 24 state regulatory OMB Control Number: 1029–0047. they are conducted in compliance with authorities Summary: Sections 515 and 516 of the requirements of the Act. SMCRA provide that permittees Bureau Form Number: None. Total Annual Burden Hours: conducting coal mining and reclamation Frequency of Collection: Once, on 1,092,430. operations must meet all applicable occasion, quarterly and annually.

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INFORMATION COLLECTION SUMMARY FOR 30 CFR PARTS 816 AND 817

Currently ,LI≤ Section Industry Industry hours State State hours Total hours approved Changes to responses per response responses per response requested burden hours burden hours

.41 ...... 68,900 6.5 0 0 447,850 447,850 0 .43 ...... 616 16 270 5 11,206 4,480 6,726 .49 ...... 17,592 6 0 0 105,552 126,144 (20,592 ) .57 ...... 0 0 0 0 0 30,800 (30,800) .62 ...... 38,480 4 0 0 153,920 101,010 52,910 .64 ...... 962 4 0 0 3,848 3,848 0 .67 ...... 150,072 1.2 0 0 180,086 180,086 0 .68 ...... 962 12 0 0 11,544 11,544 0 .71 ...... 9,072 8 0 0 72,576 475,136 (402,560) .81 ...... 0 0 0 0 0 15,528 (15,528) .83 & .87 ...... 7,764 3 0 0 23,292 23,292 0 .116 ...... 880 80 2 100 70,600 70,600 0 817.121 ...... 80 4 0 0 320 320 0 817.122 ...... 1,638 .5 0 0 819 816 3 .131 ...... 335 16 331 .5 5,526 5,360 166 .151 ...... 481 11 0 0 5,291 5,291 0 Totals ...... 297,834 ...... 603 ...... 1,092,430 1,502,105 (409,675) Note: Under 30 CFR 816/817.41, the water monitoring reports required under the National Pollutant Discharge Elimination System (NPDES) are not counted as an OSM burden.

Non-Labor Cost Burden: $371,064. the Internet at www.regulations.gov. The reconsideration of the adequacy of the These burden estimates include time Docket ID number is OSM–2007–0008. FEIS. for reviewing instructions, searching A copy of the FEIS is also available for The preamble to this final rule serves existing data sources, gathering and inspection as part of the administrative as the ‘‘Record of Decision’’ under maintaining the data needed, and record for this rulemaking in the South NEPA. Because of the length of the completing and reviewing the Interior Building, Room 101, 1951 preamble, we have prepared the collections of information. We may not Constitution Avenue, NW., Washington, following concise summary of the FEIS conduct or sponsor and you are not DC 20240. and the decisions made in the final rule required to respond to a collection of Both we and EPA published notices of relative to the alternatives considered in information unless we display a the FEIS. currently valid OMB control number. availability of the FEIS on October 24, 2008 (73 FR 63510 and 63470, Because of the comments we received These control numbers are identified in on the proposed rule and draft EIS, the sections 780.10, 784.10, 816.10, and respectively). The wait period for the final rule differs somewhat from the 817.10 of 30 CFR parts 780, 784, 816, FEIS under 40 CFR 1506.10(b)(2) proposed rule, which means that the and 817, respectively. expired November 24, 2008. During that You should direct any comments on period, we received approximately 930 preferred alternative in the final EIS differs somewhat from the preferred the accuracy of our burden estimates; comments. However, the vast majority alternative in the draft EIS. In making ways to enhance the quality, utility, and of commenters did not address the FEIS. these changes and in developing the clarity of the information to be Instead, the commenters variously final rule, we used the EIS to collected; and ways to minimize the expressed opposition to mountaintop burden of collection on respondents, to understand the potential environmental removal operations, the placement of fill impacts. the Information Collection Clearance material in streams, mining activities Officer, Office of Surface Mining adjacent to streams, or all or part of the Alternatives Considered Reclamation and Enforcement, 1951 proposed rule that we published on The draft and final environmental Constitution Ave, NW., Room 202 SIB, August 24, 2007, for which the Washington, DC 20240. impact statements contain an analysis of comment period closed almost one year five rulemaking alternatives, which are K. National Environmental Policy Act earlier (November 23, 2007). Some summarized below. Alternative 1 is both This rule constitutes a major Federal commenters opposed EPA concurrence the preferred alternative and the action significantly affecting the quality with the final rule. A few commenters environmentally preferable alternative; of the human environment under the urged adoption of a wider buffer zone it forms the basis for the final rule that National Environmental Policy Act of for streams to provide greater we are adopting today. environmental protection. To the 1969 (NEPA). Therefore, we have No Action Alternative prepared a final environmental impact limited extent that commenters referred statement (FEIS) pursuant to section to the FEIS, they generally either Under this alternative, we would not 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). expressed a preference for one of the adopt any new or revised rules. The The FEIS, which is entitled ‘‘OSM–EIS– alternatives (usually the no action current regulations applicable to excess 34: Proposed Revisions to the alternative) or criticized the FEIS for not spoil generation, coal mine waste Permanent Program Regulations analyzing in detail the alternative disposal, fill construction, and stream Implementing the Surface Mining prohibiting all mining activities within buffer zones would remain unchanged. Control and Reclamation Act of 1977 the stream buffer zone. There were no One state regulatory authority Concerning the Creation and Disposal of comments that raised substantive issues supported this alternative because it Excess Spoil and Coal Mine Waste and or identified significant errors or would require no changes in state Stream Buffer Zones,’’ is available on admissions that would necessitate regulatory programs.

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Alternative 1: Preferred Alternative EIS and the proposed rule, we consideration of cost, logistics, and Under this alternative, as set forth in substantially revised the preferred available technology. The fact that one the draft EIS, we would revise our rules alternative. A description of the alternative may cost somewhat more to— modified preferred alternative appears than a different alternative would not • Require the permit applicant to below, organized by subject (excess necessarily warrant exclusion of the demonstrate that the operation has been spoil, coal mine waste, stream buffer more costly alternative from designed to minimize the volume of zones): consideration. However, an alternative generally could be considered excess spoil to the extent possible. Excess Spoil • Require that excess spoil fills be unreasonable if its cost was designed and constructed to be no larger This alternative would revise 30 CFR substantially greater than the costs than needed to accommodate the 780.35 and 784.19 to require that a normally associated with this type of anticipated volume of excess spoil that permit application in which the project. In addition, to be considered the proposed operation will generate. applicant proposes to generate excess reasonable, a potential alternative • Require that permit applicants for spoil include a demonstration, to the would have to be consistent with the operations that would generate excess satisfaction of the regulatory authority, coal recovery provisions of 30 CFR spoil develop various alternative excess that the operation is designed to 816.59 and 817.59, which provide that spoil disposal plans in which the size, minimize, to the extent possible, the mining activities must be conducted so numbers, configuration, and locations of volume of excess spoil that the as to maximize the utilization and the fills vary; submit an analysis of the operation will generate, thus ensuring conservation of the coal, while utilizing environmental impacts of those that spoil is returned to the mined-out the best appropriate technology alternatives; and select the alternative area to the extent possible, taking into currently available to maintain with the least overall adverse consideration applicable regulations environmental integrity, so that environmental impact or demonstrate to concerning restoration of the reaffecting the land in the future the satisfaction of the regulatory approximate original contour, safety, through surface coal mining operations authority why implementation of that stability, and environmental protection is minimized. alternative is not possible. and the needs of the proposed The applicant would have to analyze • Require that excess spoil fills be postmining land use. The revised the impacts of each of the identified constructed in accordance with the regulations would also require a alternatives on fish, wildlife, and related plans approved in the permit and in a demonstration, prepared to the environmental values, taking into manner that minimizes disturbances to satisfaction of the regulatory authority, consideration both terrestrial and and adverse impacts on fish, wildlife, that the designed maximum cumulative aquatic ecosystems. For every and related environmental values to the volume of all proposed excess spoil fills alternative that would involve extent possible, using the best within the permit area is no larger than placement of excess spoil in a perennial technology currently available. the capacity needed to accommodate the or intermittent stream, the analysis must • Require that permit applicants for anticipated cumulative volume of include an evaluation of impacts on the operations that would include coal mine excess spoil that the operation will physical, chemical, and biological waste disposal structures identify generate, as approved by the regulatory characteristics of the stream alternative disposal methods and authority. downstream of the proposed fill, alternative locations for any disposal The revised regulations also would including seasonal variations in structures; analyze the viability and provide that the applicant must design temperature and volume, changes in environmental impacts of each the operation to avoid placement of stream turbidity or sedimentation, the alternative; and select the alternative excess spoil in or within 100 feet of a degree to which the excess spoil may with the least overall adverse perennial or intermittent stream to the introduce or increase contaminants, and environmental impact or demonstrate to extent possible. The purpose of this the effects on aquatic organisms and the the satisfaction of the regulatory provision is to minimize adverse wildlife that is dependent upon the authority why implementation of that impacts on fish, wildlife, and related stream. If the applicant prepared an alternative is not possible. environmental values. If avoidance is analysis of alternatives for the proposed • Revise the stream buffer zone rules not possible, the applicant would have fill under 40 CFR 230.10 to meet Clean to apply to all waters of the United to explain, to the satisfaction of the Water Act requirements, the applicant States and modify the permit regulatory authority, why an alternative could initially submit a copy of that application requirements accordingly; that does not involve placement of analysis with the application in lieu of identify those activities that are not excess spoil in or within 100 feet of a complying with the analytical subject to the prohibition on conducting perennial or intermittent stream is not requirements detailed in the preceding mining and reclamation activities on the reasonably possible. In addition, the sentence. The regulatory authority surface of lands within 100 feet of applicant would have to identify a would determine whether and to what waters of the United States; consolidate reasonable range of alternatives that extent the analysis prepared for Clean and revise requirements for stream- vary with respect to the number, size, Water Act purposes satisfies the channel diversions in 30 CFR 816.43 location, and configuration of proposed analytical requirements under this and 817.43, and replace the existing fills. The applicant would have to alternative. findings regarding stream water quantity identify only those alternatives that are The applicant would be required to and quality and State and Federal water reasonably possible and that are likely select the alternative with the least quality standards with language that to differ in terms of impacts on fish, overall adverse impact on fish, wildlife, better correlates with the underlying wildlife, and related environmental and related environmental values, provisions of SMCRA (paragraphs values. including adverse impacts on water (b)(10)(B)(i) and (b)(24) of section 515 An alternative would be reasonably quality and terrestrial and aquatic and paragraphs (b)(9)(B) and (b)(11) of possible if it conformed to the safety, ecosystems. section 516). engineering, design, and construction Finally, under the preferred However, after evaluating the requirements of the regulatory program alternative, we would revise the comments that we received on the draft and is capable of being done after performance standards concerning

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excess spoil at 30 CFR 816.71 and characteristics of the stream fish, wildlife, and related environmental 817.71 by adding a requirement that the downstream of the proposed refuse pile values to the extent possible. Before permittee construct the fill in or slurry impoundment, including approving the proposed activities in the accordance with the design and plans seasonal variations in temperature and stream, the regulatory authority would approved in the permit. We also would volume, changes in stream turbidity or have to prepare written findings add a provision requiring the permittee sedimentation, the degree to which the concurring with those demonstrations. to place excess spoil in a location and coal mine waste may introduce or When an applicant proposes to manner that would minimize increase contaminants, and the effects conduct activities within the buffer zone disturbances and adverse impacts on on aquatic organisms and the wildlife but not within the stream itself, the fish, wildlife, and related environmental that is dependent upon the stream. If the preferred alternative would require that values to the extent possible, using the applicant prepared an analysis of the applicant demonstrate that avoiding best technology currently available. alternatives for the proposed refuse pile disturbance of the stream buffer zone or slurry impoundment under 40 CFR either is not reasonably possible or is Coal Mine Waste 230.10 to meet Clean Water Act not necessary to meet the hydrologic This alternative would revise our coal requirements, the applicant could balance and fish and wildlife protection mine waste disposal regulations in a initially submit a copy of that analysis requirements of the regulatory program. fashion similar to what we proposed for with the application in lieu of The applicant also would have to excess spoil disposal. The permitting complying with the analytical identify any lesser buffer zone that he or regulations at 30 CFR 780.25 and 784.16 requirements detailed in the preceding she proposes to maintain and explain would be revised to provide that the sentence. The regulatory authority how the lesser buffer zone, together applicant must design the operation to would then determine whether and to with any other protective measures avoid placement of coal mine waste in what extent the analysis prepared for proposed, constitute the best technology or within 100 feet of perennial or Clean Water Act purposes satisfies the currently available to prevent intermittent stream to the extent analytical requirements under this contributions of additional suspended possible. If avoidance is not reasonably alternative. solids to streamflow or runoff outside possible, the applicant would have to The applicant would be required to the permit area to the extent possible identify a reasonable range of alternative select the alternative with the least and to minimize disturbances and locations or configurations for any overall adverse impact on fish, wildlife, adverse impacts on fish, wildlife, and proposed refuse piles or coal mine and related environmental values, related environmental values to the waste impoundments. The applicant including adverse impacts on water extent possible. Before approving the would have to identify only alternatives quality and aquatic and terrestrial applicant’s proposed activities in the that are reasonably possible and that are ecosystems. stream buffer zone, the regulatory likely to differ in terms of impacts on authority would have to prepare written Stream Buffer Zones fish, wildlife, and related environmental findings concurring with the values. The fact that one alternative may This alternative would add new demonstration and explanation in the cost somewhat more than a different regulations at 30 CFR 780.28 and 784.28 application. alternative would not necessarily to establish permit application In all cases, the new rules would warrant exclusion of the more costly requirements and regulatory authority require that the applicant identify the alternative from consideration. review responsibilities if mining or authorizations and certifications that However, an alternative generally could related regulated activities are proposed would be needed under the Clean Water be considered unreasonable if its cost is in or within 100 feet of a perennial or Act and its implementing regulations. substantially greater than the costs intermittent stream. The new The preferred alternative would clarify normally associated with this type of requirements, which would reflect the that, while the SMCRA permit may be project. In addition, to be considered SMCRA provisions upon which the issued in advance of any necessary reasonable, a potential alternative stream buffer zone rule is based, would Clean Water Act authorization, issuance would have to be consistent with the replace the findings that the regulatory of a SMCRA permit does not allow the coal recovery provisions of 30 CFR authority must make under existing 30 permittee to initiate any activities for 816.59 and 817.59, which provide that CFR 816.57(a)1) and 817.57(a)(1) before which Clean Water Act authorization or mining activities must be conducted so authorizing activities within 100 feet of certification is needed. as to maximize the utilization and a perennial or intermittent stream. The Under the preferred alternative, we conservation of the coal, while utilizing findings in the existing rule include also would revise the stream buffer zone the best appropriate technology several Clean Water Act-related performance standards at 30 CFR 816.57 currently available to maintain provisions that would be removed and 817.57 to provide that the environmental integrity, so that under this alternative. requirement to maintain an undisturbed reaffecting the land in the future When an applicant proposes to buffer around a perennial or through surface coal mining operations conduct activities in the stream itself, intermittent stream does not apply to is minimized. the preferred alternative would require those stream segments for which the The applicant would have to analyze that the applicant demonstrate that regulatory authority approves one or the impacts of each of the identified avoiding disturbance of the stream is more of the following activities: alternatives on fish, wildlife, and related not reasonably possible. The applicant • Diversion of a perennial or environmental values, taking into also would have to demonstrate that the intermittent stream. consideration both terrestrial and activities would comply with all • Placement of bridge abutments, aquatic ecosystems. For every applicable regulations concerning use of culverts, or other structures in or within alternative that would involve the best technology currently available 100 feet of a perennial or intermittent placement of coal mine waste in a to prevent contributions of additional stream to facilitate crossing of the perennial or intermittent stream, the suspended solids to streamflow or stream by roads, railroads, conveyors, analysis would have to include an runoff outside the permit area to the pipelines, utilities, or similar facilities. evaluation of the impacts on the extent possible and to minimize • Construction of sedimentation pond physical, chemical, and biological disturbances and adverse impacts on embankments in a perennial or

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intermittent stream, including the pool the existing rule language with the (1) Prevent additional contributions of or storage area created by the historical application of the 1983 stream suspended solids to the section of embankment. buffer zone rule, which we discussed stream within 100 feet downstream of • Construction of excess spoil fills earlier in Parts III.D. and III.E. of this the mining activities, and outside the and coal mine waste disposal facilities preamble. The change from ‘‘adversely area affected by mining activities; and in a perennial or intermittent stream. affect’’ to ‘‘significantly degrade’’ would (2) Minimize disturbances and Each of these activities would remain replace language of uncertain adverse impacts on fish, wildlife, and subject to all other existing performance provenance with language similar to other related environmental values of standards, including standards that that found in the 404(b)(1) Guidelines at the stream. regulate the environmental impacts of 40 CFR 230.10(c), which pertains to Under this alternative, persons the activities. Thus, for example, all placement of dredged or fill materials in seeking to conduct surface mining surface activities conducted in or within waters of the United States under activities (or, for underground mines, 100 feet of a perennial or intermittent section 404 of the Clean Water Act. The surface activities) on the surface of stream must comply with SMCRA proposed new finding in paragraph lands within the buffer zone of a sections 515(b)(10)(B)(i) and 515(b)(24) (a)(3) would reiterate the requirements perennial or intermittent stream would and various regulations implementing of section 515(b)(24) of SMCRA. have to seek and obtain a variance from those statutory provisions. Also, We sought comment on the benefits the regulatory authority in all cases, paragraph (b) of 30 CFR 816.57 and and drawbacks of this variant as even if the stream segment is to be 817.57 (1983), which requires that contrasted with the buffer zone rule diverted or filled. There would be no buffer zones be marked, would be changes that we proposed. In particular, categorical exceptions for certain deleted and merged with our other signs we invited comment on the extent to activities as there are under Alternative 1. and markers requirements at 30 CFR which our rules can or should 816.11(e) and 817.11(e). Essentially, Alternative 2 differs from incorporate broad references to Clean In the draft EIS, we also sought Alternative 1 in the following respects: Water Act requirements and use Clean comment on a variant of this alternative, Under Alternative 2, the changes to the which would revise the buffer zone rule Water Act terminology in place of excess spoil regulations would be to apply to all waters of the United SMCRA terminology. We also invited generally analogous to the changes States and would eliminate paragraph comment on whether and how our described in Alternative 1, with the (a)(2) of 30 CFR 816.57 and 817.57 preferred alternative and this variant exception that an alternatives analysis (1983), which contained a redundant differ in terms of impact on the ability would be required in every case in requirement for a finding that stream- of proposed surface coal mining and which an operation generated excess channel diversions will comply with 30 reclamation operations to qualify for a spoil, not just those for those operations CFR 816.43 or 817.43. However, the nationwide permit under section 404 of that propose to place excess spoil in or variant otherwise would retain much of the Clean Water Act. within 100 feet of a perennial or the 1983 stream buffer zone rule We received very few comments in intermittent stream. In addition, language at 30 CFR 816.57(a) and response to this request. Those that we Alternative 2 would not amend the coal 817.57(a), with several modifications. did receive generally opposed adoption mine waste disposal rules. With respect The first modification would revise of the variant because of the change to the stream buffer zone rule, paragraph (a)(1), which required that the from ‘‘adversely affect’’ to ‘‘significantly Alternative 2, unlike Alternative 1, regulatory authority find that the degrade’’ and, in one case, replacing the would not establish separate permitting ‘‘mining activities will not cause or phrase ‘‘of the stream’’ with ‘‘of the requirements for proposed activities in contribute to the violation of applicable waters outside the permit area.’’ or within 100 feet of a perennial or State or Federal water quality standards, Alternative 2: January 7, 2004, Proposed intermittent stream. Unlike Alternative and will not adversely affect the water Rule 1, Alternative 2 provides no exception quantity and quality or other from the requirement to either avoid the environmental resources of the stream,’’ Under this alternative, we would buffer zone or obtain a variance from the by inserting the clause ‘‘as indicated by revise our regulations in a manner regulatory authority. The findings issuance of a certification under section similar to that set forth in our January required for a variance also differ. Most 401 of the Clean Water Act or a permit 7, 2004, proposed rule (69 FR 1036). In significantly, under Alternative 2, under section 402 or 404 of the Clean essence, the changes to our excess spoil applicants would not need to Water Act’’ after ‘‘State or Federal water regulations would be generally demonstrate—and the regulatory quality standards,’’ by replacing the analogous to the changes described in authority would not need to find—that phrase ‘‘adversely affect’’ with Alternative 1, but we would not make it is not reasonably possible to avoid ‘‘significantly degrade,’’ and by similar changes to our coal mine waste disturbing the stream or its buffer zone. replacing the phrase ‘‘of the stream’’ disposal rules. With respect to the Several industry commenters with ‘‘of the waters outside the permit stream buffer zone rules, we would supported adoption of this alternative, area.’’ In addition, this variant would retain the prohibition on disturbance of primarily because it would reduce add a new finding that would require land within 100 feet of a perennial or ambiguity associated with the 1983 minimization of disturbances and intermittent stream, but alter the stream buffer zone rule and included adverse impacts on fish, wildlife, and findings that the regulatory authority more modest excess spoil minimization other related environmental values of must make before granting a variance to and alternatives analysis requirements the waters to the extent possible using this requirement. The revised rule than Alternative 1. In addition, they the best technology currently available. would replace the findings in the 1983 noted favorably that, unlike the Apart from its expansion to include stream buffer zone rule with a preferred alternative, Alternative 2 all waters of the United States, this requirement that the regulatory would not use the term ‘‘waters of the variant would largely preserve the status authority find in writing that the United States’’ in lieu of perennial or quo in terms of application of the 1983 activities would, to the extent possible, intermittent streams in defining the stream buffer zone rule. The revised rule use the best technology currently scope of the stream buffer zone rule, and language would be more consistent than available to— did not include requirements for an

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alternatives analysis of proposals to 100 feet of perennial or intermittent alternative may cost somewhat more place coal mine waste in or near waters streams to the extent possible. than a different alternative does not of the United States. 3. We extensively revised the rule to necessarily warrant exclusion of the clearly differentiate between permit more costly alternative from Alternative 3: Change Only the Excess application requirements and findings consideration. However, an alternative Spoil Regulations required for approval of activities that generally may be considered Under this alternative, we would would take place in perennial or unreasonable if its cost is substantially revise our excess spoil regulations as intermittent streams and the greater than the costs normally described in Alternative 1. We would requirements and findings for those associated with that type of project. not revise our coal mine waste disposal activities that would disturb only the (C) Is consistent with the provisions rules or the stream buffer zone buffer zone for those streams. of 30 CFR 816.59/817.59, which require regulations. Specifically, in the final rule, new maximization of coal recovery to This alternative received little support sections 780.28 and 784.28 provide that, minimize the likelihood that the land from commenters. One industry as a prerequisite for approval of will be reaffected by mining operations commenter opposed it because it activities in a perennial or intermittent in the future. included requirements for an stream, the permit applicant must 5. The final rule requires a permit alternatives analysis of proposals to demonstrate, and the regulatory applicant proposing to place excess place coal mine waste and excess spoil authority must find, that it is not spoil or coal mine waste in or within in or near waters of the United States. reasonably possible to avoid disturbance 100 feet of a perennial or intermittent of the stream or its buffer zone. In stream to select the alternative with the Alternative 4: Change Only the Stream addition, the SMCRA permit must least overall adverse impact on fish, Buffer Zone Regulations include a condition requiring a wildlife, and related environmental Under this alternative, we would demonstration of compliance with all values. The proposed rule would have revise our stream buffer zone applicable Clean Water Act allowed an applicant to select a less regulations as described in Alternative authorization or certification protective alternative based upon a 1. We would not revise our excess spoil requirements before the permittee may demonstration that the most protective or coal mine waste disposal regulations. conduct any activities in the stream for alternative was not possible. However, This alternative received some which authorization or certification is under the revised final rule, an support from those commenters who required under the Clean Water Act. For applicant need only identify and saw no benefit and many difficulties activities that would occur within the consider reasonably possible with our proposed excess spoil and coal buffer zone, but not in the stream itself, alternatives, which means that this mine waste disposal requirements, as the final rule provides that the permit provision of the proposed rule is no described in the preferred alternative, applicant must demonstrate, and the longer appropriate or relevant. but who wanted to see the controversy regulatory authority must find, that 6. The final rule clarifies that the surrounding the stream buffer zone rule avoiding disturbance of the buffer zone stream buffer zone requirement does not resolved. either is not reasonably possible or is apply to any stream segment for which a stream-channel diversion is approved Decision not necessary to meet the fish and wildlife and hydrologic balance and constructed. The proposed rule We are adopting the preferred protection requirements of the would have applied the exception only alternative as described in the final EIS. regulatory program. to mining through streams, which has The final rule and the preferred 4. We revised the rules governing the limited utility in the context of alternative in the final EIS differ from disposal of coal mine waste and underground mines. Furthermore, it the proposed rule and the preferred placement of excess spoil to require would be illogical to apply the buffer alternative in the draft EIS in several identification and analysis of zone requirement to any stream segment respects. The most significant alternatives only when the applicant that has been diverted, regardless of the differences are summarized below: proposes to place coal mine waste or reason for the diversion, because there 1. In the final rule, we retained the excess spoil in or within 100 feet of a is no longer a need or purpose for a scope of the 1983 stream buffer zone perennial or intermittent stream. In buffer zone for a former stream channel rule, which included only perennial and addition, as revised, the final rule from which all flows have been intermittent streams, rather than provides that the permit applicant need diverted. adopting those provisions of our identify only those reasonably possible Environmental Effects of the proposed rules that would have applied alternatives that are likely to differ Alternatives the buffer zone restrictions to waters of significantly in terms of impacts on fish, the United States. As discussed in Part wildlife, and related environmental The information obtained in the VII of this preamble, almost all values. The proposed rule would have course of preparing this EIS indicates commenters who opined on this issue required identification of a reasonable that the proposed Federal action may opposed the proposed change to waters range of alternatives, which could have have the most significant effects in the of the United States. In general, included alternatives that are possible central Appalachian coal fields, commenters preferred the relatively from a technological perspective, but are particularly eastern Kentucky, well-understood concept of perennial impracticable because of cost or other southwestern Virginia, and southern and intermittent streams as opposed to considerations. The final rule specifies West Virginia. The steep-slope terrain, the uncertain meaning of the term that an alternative is reasonably possible ample rainfall, and abundant surface- waters of the United States. if it— minable reserves of high quality 2. In response to concerns that the (A) Conforms to the safety, bituminous coal in these areas help proposed rule did not adequately engineering, design, and construction explain why 98% of all excess spoil fills protect headwater streams, we added a requirements of the regulatory program. nationally and approximately 61 requirement that the operation be (B) Is capable of being done after percent of the stream miles directly designed to avoid placement of excess consideration of cost, logistics, and impacted by mining are located in these spoil or coal mine waste in or within available technology. The fact that one areas.

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Alternatives 1, 2, and 3 would revise ‘‘no action’’ alternative. In the final rule, 30 CFR Part 816 the excess spoil regulations to enhance we are adopting this alternative, which Environmental protection, Reporting consideration of the environmental is both the most environmentally and recordkeeping requirements, effects of fill construction by requiring protective alternative and the preferred Surface mining. that applicants minimize the volume of alternative. spoil placed outside the mined-out area, 30 CFR Part 817 Mitigation, Monitoring and Enforcement design and construct excess spoil fills to Environmental protection, Reporting We have adopted all practicable reduce the amount of land and water and recordkeeping requirements, means to avoid or minimize directly affected outside the mined-out Underground mining. area, and configure fills to minimize environmental harm from the adverse impacts on fish, wildlife, and alternative selected. SMCRA’s Dated: December 1, 2008, related environmental values. States in permitting requirements and C. Stephen Allred, the central Appalachian coalfields performance standards generally require Assistant Secretary, Land and Minerals (Kentucky, Virginia, Tennessee, and avoidance or minimization of adverse Management. West Virginia) have taken various steps impacts to important environmental ■ For the reasons set forth in the in accordance with their approved resources, and our regulations do preamble, the Department revises 30 SMCRA regulatory programs to likewise. In particular, this final rule CFR parts 780, 784, 816, and 817 as set implement similar actions, so the requires that surface coal mining forth below. impacts of the excess spoil elements of operations be designed to minimize the alternatives likely would be limited by amount of spoil placed outside the PART 780—SURFACE MINING PERMIT the changes already made by those mined-out area, thus minimizing the APPLICATIONS—MINIMUM states. amount of land disturbed. The final rule REQUIREMENTS FOR RECLAMATION We do not anticipate that the also requires that, to the extent possible, AND OPERATION PLAN revisions that Alternatives 1, 2, and 4 surface coal mining and reclamation ■ would make to the stream buffer zone operations be designed to avoid 1. The authority citation for part 780 rule would have any major on-the- disturbance of perennial or intermittent continues to read as follows: ground consequences because we do not streams and the surface of lands within Authority: 30 U.S.C. 1201 et seq. and 16 expect that those revisions would alter 100 feet of those streams. If avoidance U.S.C. 470 et seq. the rate at which surface coal mining is not reasonably possible, the rule and reclamation operations are ■ 2. The part heading is revised to read requires that the permit applicant as set forth above. impacting perennial and intermittent develop and analyze a reasonable range streams. Between 1992 and 2002, we ■ 3. Section 780.10 is revised to read as of reasonably possible alternatives and follows: estimate that coal mining operations select the alternative that would have directly impacted 1,208 miles of stream the least overall adverse impact on fish, § 780.10 Information collection. in the central Appalachian coal fields, wildlife, and related environmental which constitutes 2.05 percent of the In accordance with 44 U.S.C. 3501 et values. seq., the Office of Management and total stream miles in the central Each SMCRA regulatory program Appalachian coal fields. At this rate, Budget (OMB) has approved the includes five major elements: Permitting information collection requirements of 4.1% of the total stream miles in central requirements and procedures, Appalachia would be directly impacted this part and assigned clearance number performance bonds to guarantee 1029–0036. Sections 507 and 508 of within the subsequent 10 years. The reclamation in the event that the miles of stream directly impacted by SMCRA contain permit application permittee defaults on any reclamation requirements for surface coal mining excess spoil fills for permits issued obligations, performance standards to between 1985 and 2001 is 724 miles, activities, including a requirement that which the operator must adhere, the application include an operation which is approximately 1.2 percent of inspection and enforcement to maintain the streams in central Appalachia. If fill and reclamation plan. The regulatory compliance with performance standards authority uses this information to construction continued at this rate, an and the terms and conditions of the additional 724 miles of headwater determine whether the proposed surface permit, and a process for the coal mining operation will achieve the streams would be buried in the next 17 designation of lands as unsuitable for years (by 2018). This trend likely would environmental protection requirements surface coal mining operations. Under decline as surface-minable coal reserves of the Act and regulatory program. 30 CFR 730.5, 732.15, and 732.17, each in central Appalachia are depleted in Without this information OSM and state state regulatory program must be no less the next few decades. regulatory authorities could not approve Alternative 1 is uniquely different effective than our regulations in permit applications for surface coal from the other alternatives in that it achieving the requirements of the Act. mines and related facilities. Persons incorporates changes to reduce the We conduct oversight of each state’s intending to conduct such operations adverse impacts of coal mine waste implementation of its approved must respond to obtain a benefit. A disposal facilities (refuse piles and regulatory program. Federal agency may not conduct or slurry impoundments) on fish, wildlife, List of Subjects sponsor, and you are not required to and related environmental values. We respond to, a collection of information anticipate that these changes would 30 CFR Part 780 unless it displays a currently valid OMB positively impact the environment. Incorporation by reference, Reporting control number. We estimate that the combination of and recordkeeping requirements, ■ 4. Amend § 780.14 by revising the excess spoil and coal mine waste Surface mining. paragraphs (b)(11) and (c) to read as provisions in Alternative 1 would result follows: in slight positive effects on the human 30 CFR Part 784 environment with respect to direct Incorporation by reference, Reporting § 780.14 Operation plan: Maps and plans. hydrologic impacts, water quality, and and recordkeeping requirements, * * * * * aquatic fauna when compared to the Underground mining. (b) * * *

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(11) Locations of each siltation document which is on file at the requirements in paragraphs (d)(1) structure, permanent water Administrative Record Room, Office of through (d)(3) of this section. impoundment, refuse pile, and coal Surface Mining Reclamation and (1) Addressing impacts to perennial mine waste impoundment for which Enforcement, 1951 Constitution and intermittent streams and related plans are required by § 780.25 of this Avenue, NW., Washington, DC 20240. environmental values. You must design part, and the location of each fill for the For information on the availability of the operation to avoid placement of coal disposal of excess spoil for which plans this document at OSM, call 202–208– mine waste in or within 100 feet of a are required under § 780.35 of this part. 2823. You also may inspect a copy of perennial or intermittent stream to the (c) Except as provided in this document at the National Archives extent possible. If avoidance is not §§ 780.25(a)(2), 780.25(a)(3), 780.35, and Records Administration (NARA). possible, you must— 816.73(c), 816.74(c), and 816.81(c) of For information on the availability of (i) Explain, to the satisfaction of the this chapter, cross-sections, maps, and this material at NARA, call 202–741– regulatory authority, why an alternative plans required under paragraphs (b)(4), 6030 or go to http://www.archives.gov/ coal mine waste disposal method or an (5), (6), (10), and (11) of this section federal_register/ alternative location or configuration that must be prepared by, or under the code_of_federal_regulations/ does not involve placement of coal mine direction of, and certified by a qualified ibr_locations.html. waste in or within 100 feet of a registered professional engineer, a (ii) Each detailed design plan for a perennial or intermittent stream is not professional geologist, or, in any state structure that meets the criteria in reasonably possible. that authorizes land surveyors to § 77.216(a) of this title must— (ii) Identify a reasonable range of prepare and certify cross-sections, maps, (A) Be prepared by, or under the alternative locations or configurations and plans, a qualified, registered, direction of, and certified by a qualified for any proposed refuse piles or coal professional land surveyor, with registered professional engineer with mine waste impoundments. This assistance from experts in related fields assistance from experts in related fields provision does not require identification such as landscape architecture. such as geology, land surveying, and of all potential alternatives. You need ■ 5. Amend § 780.25 as follows: landscape architecture; identify only those reasonably possible ■ A. Revise the section heading, (B) Include any geotechnical alternatives that are likely to differ paragraph (a) introductory text, investigation, design, and construction significantly in terms of impacts on fish, paragraph (a)(1) introductory text, and requirements for the structure; wildlife, and related environmental paragraph (a)(2); (C) Describe the operation and values. An alternative is reasonably ■ B. Revise paragraph (c)(2) and add maintenance requirements for each possible if it meets all the following paragraph (c)(4); structure; and criteria: ■ C. Revise paragraph (d); and (D) Describe the timetable and plans (A) The alternative conforms to the ■ D. Remove paragraphs (e) and (f). to remove each structure, if appropriate. safety, engineering, design, and construction requirements of the The revisions and addition read as * * * * * follows: regulatory program. (c) * * * (B) The alternative is capable of being § 780.25 Reclamation plan: Siltation (2) Each plan for an impoundment done after consideration of cost, structures, impoundments, and refuse meeting the criteria in § 77.216(a) of this logistics, and available technology. The piles. title must comply with the requirements fact that one alternative may cost (a) General. Each application must of § 77.216–2 of this title. The plan somewhat more than a different include a general plan and a detailed required to be submitted to the District alternative does not necessarily warrant design plan for each proposed siltation Manager of MSHA under § 77.216 of exclusion of the more costly alternative structure, impoundment, and refuse pile this title must be submitted to the from consideration. However, an within the proposed permit area. regulatory authority as part of the alternative generally may be considered (1) Each general plan must— permit application. unreasonable if its cost is substantially * * * * * * * * * * greater than the costs normally (2)(i) Impoundments meeting the (4) If the structure meets the associated with this type of project. criteria for Significant Hazard Class or Significant Hazard Class or High Hazard (C) The alternative is consistent with High Hazard Class (formerly Class B or Class criteria for dams in TR–60 or the coal recovery provisions of § 816.59 C) dams in ‘‘Earth Dams and meets the criteria of § 77.216(a) of this of this chapter. Reservoirs,’’ Technical Release No. 60 chapter, each plan must include a (iii) Analyze the impacts of the (210–VI–TR60, July 2005), published by stability analysis of the structure. The alternatives identified in paragraph the U.S. Department of Agriculture, stability analysis must include, but not (d)(1)(ii) of this section on fish, wildlife, Natural Resources Conservation Service, be limited to, strength parameters, pore and related environmental values. The must comply with the requirements of pressures, and long-term seepage analysis must consider impacts on both this section for structures that meet the conditions. The plan also must contain aquatic and terrestrial ecosystems. criteria in § 77.216(a) of this title. a description of each engineering design (A) For every alternative that proposes Technical Release No. 60 (TR–60) is assumption and calculation with a placement of coal mine waste in a hereby incorporated by reference. The discussion of each alternative perennial or intermittent stream, the Director of the Federal Register considered in selecting the specific analysis required under paragraph approves this incorporation by reference design parameters and construction (d)(1)(iii) of this section must include an in accordance with 5 U.S.C. 552(a) and methods. evaluation of impacts on the physical, 1 CFR part 51. You may review and (d) Coal mine waste impoundments chemical, and biological characteristics download the incorporated document and refuse piles. If you, the permit of the stream downstream of the from the Natural Resources applicant, propose to place coal mine proposed refuse pile or coal mine waste Conservation Service’s Web site at waste in a refuse pile or impoundment, impoundment, including seasonal http://www.info.usda.gov/scripts/ or if you plan to use coal mine waste to variations in temperature and volume, lpsiis.dll/TR/TR_210_60.htm. You may construct an impounding structure, you changes in stream turbidity or inspect and obtain a copy of this must comply with the applicable sedimentation, the degree to which the

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coal mine waste may introduce or (D) Consider the possibility of measures that you propose to increase contaminants, and the effects mudflows, rock-debris falls, or other implement, constitute the best on aquatic organisms and the wildlife landslides into the impoundment or technology currently available to— that is dependent upon the stream. impounded material. (i) Prevent the contribution of (B) If you have prepared an analysis ■ 6. Add § 780.28 to read as follows: additional suspended solids to of alternatives for the proposed streamflow or runoff outside the permit § 780.28 Activities in or adjacent to impoundment or refuse pile under 40 perennial or intermittent streams. area to the extent possible, as required CFR 230.10 to meet Clean Water Act by §§ 780.21(h) and 816.41(d)(1) of this requirements, you may initially submit (a) Applicability. (1) In general. chapter; and a copy of that analysis in lieu of the Except as otherwise provided in (ii) Minimize disturbances and analysis required under paragraph paragraph (a)(2) of this section, this adverse impacts on fish, wildlife, and (d)(1)(iii)(A) of this section. The section applies to applications to related environmental values to the regulatory authority will determine the conduct surface mining activities in extent possible, as required by extent to which that analysis satisfies perennial or intermittent streams or on §§ 780.16(b) and 816.97(a) of this the requirements of paragraph the surface of lands within 100 feet, chapter. measured horizontally, of perennial or (d)(1)(iii)(A) of this section. (d) Approval requirements for intermittent streams. (iv) Select the alternative with the activities in a perennial or intermittent (2) Exceptions. (i) Coal preparation least overall adverse impact on fish, stream. Before approving any surface plants not located within the permit wildlife, and related environmental mining activities in a perennial or area of a mine. This section does not values, including adverse impacts on intermittent stream, the regulatory apply to applications under § 785.21 of water quality and aquatic and terrestrial authority must— this chapter for coal preparation plants ecosystems. (1) Find in writing that— that are not located within the permit (2) Design requirements for refuse (i) Avoiding disturbance of the stream area of a mine. piles. Refuse piles must be designed to (ii) Stream-channel diversions. is not reasonably possible; and comply with the requirements of Paragraphs (b) through (e) of this section (ii) The plans submitted with the §§ 816.81 and 816.83 of this chapter. do not apply to diversions of perennial application meet all applicable (3) Design requirements for or intermittent streams, which are requirements in paragraphs (b) and (c) impoundments and impounding governed by § 780.29 of this part and of § 816.57 of this chapter. structures. Impounding structures § 816.43 of this chapter. (2) Include a permit condition constructed of or intended to impound (b) Application requirements for requiring a demonstration of coal mine waste must be designed to surface mining activities in a perennial compliance with the Clean Water Act in comply with the requirements of or intermittent stream. If you propose to the manner specified in § 816.57(a)(2) of §§ 816.81 and 816.84 of this chapter, conduct one or more of the activities this chapter before the permittee may which incorporate the requirements of listed in paragraphs (b)(2) through (b)(4) conduct any activities in a perennial or paragraphs (a) and (c) of § 816.49 of this of § 816.57 of this chapter in a perennial intermittent stream that require chapter. In addition,— or intermittent stream, your application authorization or certification under the (i) The plan for each structure that must demonstrate that— Clean Water Act. meets the criteria of § 77.216(a) of this (1) Avoiding disturbance of the stream (e) Approval requirements for title must comply with the requirements is not reasonably possible; and activities within 100 feet of a perennial of § 77.216–2 of this title; and (2) The proposed activities will or intermittent stream. Before approving (ii) Each plan for a coal mine waste comply with all applicable requirements any surface mining activities that would impoundment must contain the results in paragraphs (b) and (c) of § 816.57 of disturb the surface of land subject to the of a geotechnical investigation to this chapter. buffer requirement of § 816.57(a)(1) of determine the structural competence of (c) Application requirements for this chapter, the regulatory authority the foundation that will support the surface mining activities within 100 feet must find in writing that— proposed impounding structure and the of a perennial or intermittent stream. If (1) Avoiding disturbance of the impounded material. An engineer or you propose to conduct surface mining surface of land within 100 feet of the engineering geologist must plan and activities within 100 feet of a perennial stream either is not reasonably possible supervise the geotechnical investigation. or intermittent stream, but not in the or is not necessary to meet the fish and In planning the investigation, the stream itself, and those activities would wildlife and hydrologic balance engineer or geologist must— occur on land subject to the buffer protection requirements of the (A) Determine the number, location, requirement of § 816.57(a)(1) of this regulatory program; and and depth of borings and test pits using chapter, your application must— (2) The measures proposed under current prudent engineering practice for (1) Demonstrate that avoiding paragraphs (c)(2) and (c)(3) of this the size of the impoundment and the disturbance of land within 100 feet of section constitute the best technology impounding structure, the quantity of the stream either is not reasonably currently available to— material to be impounded, and possible or is not necessary to meet the (i) Prevent the contribution of subsurface conditions. fish and wildlife and hydrologic balance additional suspended solids to (B) Consider the character of the protection requirements of the streamflow or runoff outside the permit overburden and bedrock, the proposed regulatory program; area to the extent possible, as required abutment sites for the impounding (2) Identify any lesser buffer that you by §§ 780.21(h) and 816.41(d)(1) of this structure, and any adverse geotechnical propose to implement instead of chapter; and conditions that may affect the particular maintaining a 100-foot undisturbed (ii) Minimize disturbances and impoundment. buffer between surface mining activities adverse impacts on fish, wildlife, and (C) Identify all springs, seepage, and and the perennial or intermittent related environmental values to the groundwater flow observed or stream; and extent possible, as required by anticipated during wet periods in the (3) Explain how the lesser buffer, §§ 780.16(b) and 816.97(a) of this area of the proposed impoundment. together with any other protective chapter.

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(f) Relationship to the Clean Water streams and related environmental Water Act requirements, you may Act. (1) In all cases, your application values. You must design the operation initially submit a copy of that analysis must identify the authorizations and to avoid placement of excess spoil in or with your application in lieu of the certifications that you anticipate will be within 100 feet of a perennial or analysis required by paragraph needed under sections 401, 402, and intermittent stream to the extent (a)(3)(iii)(A) of this section. The 404 of the Clean Water Act, 33 U.S.C. possible. If avoidance is not possible, regulatory authority will determine the 1341, 1342, and 1344, and describe the you must— extent to which that analysis satisfies steps that you have taken or will take to (i) Explain, to the satisfaction of the the analytical requirements of paragraph procure those authorizations and regulatory authority, why an alternative (a)(3)(iii)(A) of this section. certifications. that does not involve placement of (iv) Select the alternative with the (2) The regulatory authority will excess spoil in or within 100 feet of a least overall adverse impact on fish, process your application and may issue perennial or intermittent stream is not wildlife, and related environmental the permit before you obtain all reasonably possible. values, including adverse impacts on necessary authorizations and (ii) Identify a reasonable range of water quality and aquatic and terrestrial certifications under the Clean Water alternatives that vary with respect to the ecosystems. Act, 33 U.S.C. 1251 et seq., provided number, size, location, and (4) Location. Maps and cross-section your application meets all applicable configuration of proposed fills. This drawings showing the location of all requirements of subchapter G of this provision does not require identification proposed disposal sites and structures. chapter. However, issuance of a permit of all potential alternatives. You need You must locate fills on the most does not authorize you to initiate any identify only those reasonably possible moderately sloping and naturally stable activities for which Clean Water Act alternatives that are likely to differ areas available, unless the regulatory authorization or certification is significantly in terms of impacts on fish, authority approves a different location required. Information submitted and wildlife, and related environmental based upon the alternatives analysis analyses conducted under subchapter G values. An alternative is reasonably under paragraph (a)(3) of this section or of this chapter may inform the agency possible if it meets all the following on other requirements of the Act and responsible for authorizations and criteria: this chapter. Whenever possible, you certifications under sections 401, 402, (A) The alternative conforms to the must place fills upon or above a natural and 404 of the Clean Water Act, 33 safety, engineering, design, and terrace, bench, or berm if that location U.S.C. 1341, 1342, and 1344, but they construction requirements of the would provide additional stability and are not a substitute for the reviews, regulatory program; prevent mass movement. authorizations, and certifications (B) The alternative is capable of being (5) Design plans. Detailed design required under those sections of the done after consideration of cost, plans for each structure, prepared in Clean Water Act. logistics, and available technology. The accordance with the requirements of ■ 7. Revise § 780.35 to read as follows: fact that one alternative may cost this section and §§ 816.71 through somewhat more than a different 816.74 of this chapter. You must design § 780.35 Disposal of excess spoil. alternative does not necessarily warrant the fill and appurtenant structures using (a) If you, the permit applicant, exclusion of the more costly alternative current prudent engineering practices propose to generate excess spoil as part from consideration. However, an and any additional design criteria of your operation, you must include the alternative generally may be considered established by the regulatory authority. following items in your application— unreasonable if its cost is substantially (6) Geotechnical investigation. The (1) Demonstration of minimization of greater than the costs normally results of a geotechnical investigation of excess spoil. A demonstration, prepared associated with this type of project. each proposed disposal site, with the to the satisfaction of the regulatory (C) The alternative is consistent with exception of those sites at which spoil authority, that the operation has been the coal recovery provisions of § 816.59 will be placed only on a pre-existing designed to minimize, to the extent of this chapter. bench under § 816.74 of this chapter. possible, the volume of excess spoil that (iii) Analyze the impacts of the You must conduct sufficient foundation the operation will generate, thus alternatives identified in paragraph investigations, as well as any necessary ensuring that spoil is returned to the (a)(3)(ii) of this section on fish, wildlife, laboratory testing of foundation mined-out area to the extent possible, and related environmental values. The material, to determine the design taking into consideration applicable analysis must consider impacts on both requirements for foundation stability for regulations concerning restoration of the terrestrial and aquatic ecosystems. each site. The analyses of foundation approximate original contour, safety, (A) For every alternative that proposes conditions must take into consideration stability, and environmental protection placement of excess spoil in a perennial the effect of underground mine and the needs of the proposed or intermittent stream, the analysis must workings, if any, upon the stability of postmining land use. include an evaluation of impacts on the the fill and appurtenant structures. The (2) Capacity demonstration. A physical, chemical, and biological information submitted must include— demonstration, prepared to the characteristics of the stream (i) The character of the bedrock and satisfaction of the regulatory authority, downstream of the proposed fill, any adverse geologic conditions in the that the designed maximum cumulative including seasonal variations in proposed disposal area. volume of all proposed excess spoil fills temperature and volume, changes in (ii) A survey identifying all springs, within the permit area is no larger than stream turbidity or sedimentation, the seepage, and groundwater flow observed the capacity needed to accommodate the degree to which the excess spoil may or anticipated during wet periods in the anticipated cumulative volume of introduce or increase contaminants, and area of the proposed disposal site. excess spoil that the operation will the effects on aquatic organisms and the (iii) A survey of the potential effects generate, as approved by the regulatory wildlife that is dependent upon the of subsidence of subsurface strata as a authority under paragraph (a)(1) of this stream. result of past and future mining section. (B) If you have prepared an analysis operations. (3) Discussion of how you will address of alternatives for the proposed fill (iv) A technical description of the impacts to perennial and intermittent under 40 CFR 230.10 to meet Clean rock materials to be utilized in the

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construction of disposal structures determine whether the plan will achieve and Records Administration (NARA). containing rock chimney cores or the reclamation and environmental For information on the availability of underlain by a rock drainage blanket. protection requirements of the Act and this material at NARA, call 202–741– (v) A stability analysis including, but regulatory program. Without this 6030 or go to http://www.archives.gov/ not limited to, strength parameters, pore information, OSM and state regulatory federal_register/ pressures, and long-term seepage authorities could not approve permit code_of_federal_regulations/ conditions. This analysis must be applications for underground coal ibr_locations.html. accompanied by a description of all mines and related facilities. Persons (ii) Each detailed design plan for a engineering design assumptions and intending to conduct such operations structure that meets the criteria in calculations and the alternatives must respond to obtain a benefit. A § 77.216(a) of this title must— considered in selecting the design Federal agency may not conduct or (A) Be prepared by, or under the specifications and methods. sponsor, and you are not required to direction of, and certified by a qualified (7) Operation and reclamation plans. respond to, a collection of information registered professional engineer with Plans for the construction, operation, unless it displays a currently valid OMB assistance from experts in related fields maintenance, and reclamation of all control number. such as geology, land surveying, and excess spoil disposal structures in ■ 10. Amend § 784.16 as follows: landscape architecture; accordance with the requirements of ■ A. Revise the section heading, (B) Include any geotechnical §§ 816.71 through 816.74 of this paragraph (a) introductory text, investigation, design, and construction chapter. paragraph (a)(1) introductory text, and requirements for the structure; (C) Describe the operation and (8) Additional requirements for paragraph (a)(2); maintenance requirements for each keyway cuts or rock-toe buttresses. If ■ B. Revise paragraph (c)(2) and add structure; and keyway cuts or rock-toe buttresses are paragraph (c)(4); ■ C. Revise paragraph (d); and (D) Describe the timetable and plans required under § 816.71(d) of this to remove each structure, if appropriate. chapter, the number, location, and ■ D. Remove paragraphs (e) and (f). depth of borings or test pits, which must The revisions and addition read as * * * * * follows: (c) * * * be determined according to the size of (2) Each plan for an impoundment the spoil disposal structure and § 784.16 Reclamation plan: Siltation meeting the criteria in § 77.216(a) of this subsurface conditions. You also must structures, impoundments, and refuse title must comply with the requirements provide the engineering specifications piles. of § 77.216–2 of this title. The plan used to design the keyway cuts or rock- (a) General. Each application must required to be submitted to the District toe buttresses. Those specifications include a general plan and a detailed Manager of MSHA under § 77.216 of must be based upon the stability design plan for each proposed siltation this title must be submitted to the analysis required under paragraph structure, impoundment, and refuse pile regulatory authority as part of the (a)(7)(v) of this section. within the proposed permit area. permit application. (b) Design certification. A qualified (1) Each general plan must— * * * * * registered professional engineer * * * * * (4) If the structure meets the experienced in the design of earth and (2)(i) Impoundments meeting the Significant Hazard Class or High Hazard rock fills must certify that the design of criteria for Significant Hazard Class or Class criteria for dams in TR–60 or all fills and appurtenant structures High Hazard Class (formerly Class B or meets the criteria of § 77.216(a) of this meets the requirements of this section. C) dams in ‘‘Earth Dams and chapter, each plan must include a Reservoirs,’’ Technical Release No. 60 stability analysis of the structure. The PART 784—UNDERGROUND MINING (210–VI–TR60, July 2005), published by PERMIT APPLICATIONS—MINIMUM stability analysis must include, but not the U.S. Department of Agriculture, be limited to, strength parameters, pore REQUIREMENTS FOR RECLAMATION Natural Resources Conservation Service, AND OPERATION PLAN pressures, and long-term seepage must comply with the requirements of conditions. The plan also must contain ■ 8. The authority citation for part 784 this section for structures that meet the a description of each engineering design continues to read as follows: criteria in § 77.216(a) of this title. assumption and calculation with a Technical Release No.60 (TR–60) is discussion of each alternative Authority: 30 U.S.C. 1201 et seq. and 16 hereby incorporated by reference. The considered in selecting the specific U.S.C. 470 et seq. Director of the Federal Register design parameters and construction ■ 9. Section 784.10 is revised to read as approves this incorporation by reference methods. follows: in accordance with 5 U.S.C. 552(a) and (d) Coal mine waste impoundments 1 CFR part 51. You may review and and refuse piles. If you, the permit § 784.10 Information collection. download the incorporated document applicant, propose to place coal mine In accordance with 44 U.S.C. 3501 et from the Natural Resources waste in a refuse pile or impoundment, seq., the Office of Management and Conservation Service’s Web site at or if you plan to use coal mine waste to Budget (OMB) has approved the http://www.info.usda.gov/scripts/ construct an impounding structure, you information collection requirements of lpsiis.dll/TR/TR_210_60.htm. You may must comply with the applicable this part and assigned clearance number inspect and obtain a copy of this requirements in paragraphs (d)(1) 1029–0039. Collection of this document which is on file at the through (d)(3) of this section. information is required under section Administrative Record Room, Office of (1) Addressing impacts to perennial 516(d) of SMCRA, which in effect Surface Mining Reclamation and and intermittent streams and related requires applicants for permits for Enforcement, 1951 Constitution environmental values. You must design underground coal mines to prepare and Avenue, NW., Washington, DC 20240. the operation to avoid placement of coal submit an operation and reclamation For information on the availability of mine waste in or within 100 feet of a plan for coal mining activities as part of this document at OSM, call 202–208– perennial or intermittent stream to the the application. The regulatory 2823. You also may inspect a copy of extent possible. If avoidance is not authority uses this information to this document at the National Archives possible, you must—

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(i) Explain, to the satisfaction of the (d)(1)(iii)(A) of this section. The (1) Demonstration of minimization of regulatory authority, why an alternative regulatory authority will determine the excess spoil. A demonstration, prepared coal mine waste disposal method or an extent to which that analysis satisfies to the satisfaction of the regulatory alternative location or configuration that the requirements of paragraph authority, that the operation has been does not involve placement of coal mine (d)(1)(iii)(A) of this section. designed to minimize, to the extent waste in or within 100 feet of a (iv) Select the alternative with the possible, the volume of excess spoil that perennial or intermittent stream is not least overall adverse impact on fish, the operation will generate, thus reasonably possible. wildlife, and related environmental ensuring that spoil is returned to the (ii) Identify a reasonable range of values, including adverse impacts on mined-out area to the extent possible, alternative locations or configurations water quality and aquatic and terrestrial taking into consideration applicable for any proposed refuse piles or coal ecosystems. regulations concerning restoration of the mine waste impoundments. This (2) Design requirements for refuse approximate original contour, safety, provision does not require identification piles. Refuse piles must be designed to stability, and environmental protection of all potential alternatives. You need comply with the requirements of and the needs of the proposed identify only those reasonably possible §§ 817.81 and 817.83 of this chapter. postmining land use. alternatives that are likely to differ (3) Design requirements for (2) Capacity demonstration. A significantly in terms of impacts on fish, impoundments and impounding demonstration, prepared to the wildlife, and related environmental structures. Impounding structures satisfaction of the regulatory authority, values. An alternative is reasonably constructed of or intended to impound that the designed maximum cumulative possible if it meets all the following coal mine waste must be designed to volume of all proposed excess spoil fills criteria: comply with the requirements of within the permit area is no larger than (A) The alternative conforms to the §§ 817.81 and 817.84 of this chapter, the capacity needed to accommodate the safety, engineering, design, and which incorporate the requirements of anticipated cumulative volume of construction requirements of the paragraphs (a) and (c) of § 817.49 of this excess spoil that the operation will regulatory program. chapter. In addition,— generate, as approved by the regulatory (B) The alternative is capable of being (i) The plan for each structure that authority under paragraph (a)(1) of this done after consideration of cost, meets the criteria of § 77.216(a) of this section. logistics, and available technology. The (3) Discussion of how you will address title must comply with the requirements fact that one alternative may cost impacts to perennial and intermittent of § 77.216–2 of this title; and somewhat more than a different streams and related environmental (ii) Each plan for a coal mine waste alternative does not necessarily warrant values. You must design the operation impoundment must contain the results exclusion of the more costly alternative to avoid placement of excess spoil in or from consideration. However, an of a geotechnical investigation to within 100 feet of a perennial or alternative generally may be considered determine the structural competence of intermittent stream to the extent unreasonable if its cost is substantially the foundation that will support the possible. If avoidance is not possible, greater than the costs normally proposed impounding structure and the you must— associated with this type of project. impounded material. An engineer or (i) Explain, to the satisfaction of the (C) The alternative is consistent with engineering geologist must plan and regulatory authority, why an alternative the coal recovery provisions of § 817.59 supervise the geotechnical investigation. that does not involve placement of of this chapter. In planning the investigation, the excess spoil in or within 100 feet of a (iii) Analyze the impacts of the engineer or geologist must— perennial or intermittent stream is not alternatives identified in paragraph (A) Determine the number, location, reasonably possible. (d)(1)(ii) of this section on fish, wildlife, and depth of borings and test pits using (ii) Identify a reasonable range of and related environmental values. The current prudent engineering practice for alternatives that vary with respect to the analysis must consider impacts on both the size of the impoundment and the number, size, location, and aquatic and terrestrial ecosystems. impounding structure, the quantity of configuration of proposed fills. This (A) For every alternative that proposes material to be impounded, and provision does not require identification placement of coal mine waste in a subsurface conditions. of all potential alternatives. You need perennial or intermittent stream, the (B) Consider the character of the identify only those reasonably possible analysis must include an evaluation of overburden and bedrock, the proposed alternatives that are likely to differ impacts on the physical, chemical, and abutment sites for the impounding significantly in terms of impacts on fish, biological characteristics of the stream structure, and any adverse geotechnical wildlife, and related environmental downstream of the proposed refuse pile conditions that may affect the particular values. An alternative is reasonably or coal mine waste impoundment, impoundment. possible if it meets all the following including seasonal variations in (C) Identify all springs, seepage, and criteria: temperature and volume, changes in groundwater flow observed or (A) The alternative conforms to the stream turbidity or sedimentation, the anticipated during wet periods in the safety, engineering, design, and degree to which the coal mine waste area of the proposed impoundment. construction requirements of the may introduce or increase (D) Consider the possibility of regulatory program; contaminants, and the effects on aquatic mudflows, rock-debris falls, or other (B) The alternative is capable of being organisms and the wildlife that is landslides into the impoundment or done after consideration of cost, dependent upon the stream. impounded material. logistics, and available technology. The (B) If you have prepared an analysis ■ 11. Revise § 784.19 to read as follows: fact that one alternative may cost of alternatives for the proposed somewhat more than a different impoundment or refuse pile under 40 § 784.19 Disposal of excess spoil. alternative does not necessarily warrant CFR 230.10 to meet Clean Water Act (a) If you, the permit applicant, exclusion of the more costly alternative requirements, you may initially submit propose to generate excess spoil as part from consideration. However, an a copy of that analysis in lieu of the of your operation, you must include the alternative generally may be considered analysis required under paragraph following items in your application— unreasonable if its cost is substantially

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greater than the costs normally (6) Geotechnical investigation. The all fills and appurtenant structures associated with this type of project. results of a geotechnical investigation of meets the requirements of this section. (C) The alternative is consistent with each proposed disposal site, with the ■ 12. Amend § 784.23 by removing the coal recovery provisions of § 817.59 exception of those sites at which spoil ‘‘817.71(b),’’ in paragraph (c) and of this chapter. will be placed only on a pre-existing revising paragraph (b)(10) to read as (iii) Analyze the impacts of the bench under § 817.74 of this chapter. follows: alternatives identified in paragraph You must conduct sufficient foundation (a)(3)(ii) of this section on fish, wildlife, investigations, as well as any necessary § 784.23 Operation plan: Maps and plans. and related environmental values. The laboratory testing of foundation * * * * * analysis must consider impacts on both material, to determine the design (b) * * * terrestrial and aquatic ecosystems. requirements for foundation stability for (10) Locations of each siltation (A) For every alternative that proposes each site. The analyses of foundation structure, permanent water placement of excess spoil in a perennial conditions must take into consideration impoundment, refuse pile, and coal or intermittent stream, the analysis must the effect of underground mine mine waste impoundment for which include an evaluation of impacts on the workings, if any, upon the stability of plans are required by § 784.16 of this physical, chemical, and biological the fill and appurtenant structures. The part, and the location of each fill for the characteristics of the stream information submitted must include— disposal of excess spoil for which plans downstream of the proposed fill, (i) The character of the bedrock and are required under § 784.19 of this part. any adverse geologic conditions in the including seasonal variations in * * * * * temperature and volume, changes in proposed disposal area. ■ stream turbidity or sedimentation, the (ii) A survey identifying all springs, 13. Add § 784.28 to read as follows: degree to which the excess spoil may seepage, and groundwater flow observed § 784.28 Surface activities in or adjacent to introduce or increase contaminants, and or anticipated during wet periods in the perennial or intermittent streams. the effects on aquatic organisms and the area of the proposed disposal site. (a) Applicability. (1) In general. wildlife that is dependent upon the (iii) A survey of the potential effects Except as otherwise provided in stream. of subsidence of subsurface strata as a paragraph (a)(2) of this section, this (B) If you have prepared an analysis result of past and future mining section applies to underground mining of alternatives for the proposed fill operations. permit applications that propose to under 40 CFR 230.10 to meet Clean (iv) A technical description of the conduct surface activities in perennial Water Act requirements, you may rock materials to be utilized in the or intermittent streams or on the surface initially submit a copy of that analysis construction of disposal structures of lands within 100 feet, measured with your application in lieu of the containing rock chimney cores or horizontally, of perennial or analysis required by paragraph underlain by a rock drainage blanket. intermittent streams. (a)(3)(iii)(A) of this section. The (v) A stability analysis including, but (2) Exceptions. (i) Coal preparation regulatory authority will determine the not limited to, strength parameters, pore plants not located within the permit extent to which that analysis satisfies pressures, and long-term seepage area of a mine. This section does not the analytical requirements of paragraph conditions. This analysis must be apply to applications under § 785.21 of (a)(3)(iii)(A) of this section. accompanied by a description of all this chapter for coal preparation plants (iv) Select the alternative with the engineering design assumptions and that are not located within the permit least overall adverse impact on fish, calculations and the alternatives area of a mine. wildlife, and related environmental considered in selecting the design (ii) Stream-channel diversions. values, including adverse impacts on specifications and methods. Paragraphs (b) through (e) of this section water quality and aquatic and terrestrial (7) Operation and reclamation plans. do not apply to diversions of perennial ecosystems. Plans for the construction, operation, or intermittent streams, which are (4) Location. Maps and cross-section maintenance, and reclamation of all governed by § 784.29 of this part and drawings showing the location of all excess spoil disposal structures in § 817.43 of this chapter. proposed disposal sites and structures. accordance with the requirements of (b) Application requirements for You must locate fills on the most §§ 817.71 through 817.74 of this activities in a perennial or intermittent moderately sloping and naturally stable chapter. stream. If you propose to conduct one areas available, unless the regulatory (8) Additional requirements for or more of the activities listed in authority approves a different location keyway cuts or rock-toe buttresses. If paragraphs (b)(2) through (b)(4) of based upon the alternatives analysis keyway cuts or rock-toe buttresses are § 817.57 of this chapter in a perennial or under paragraph (a)(3) of this section or required under § 817.71(d) of this intermittent stream, your application on other requirements of the Act and chapter, the number, location, and must demonstrate that— this chapter. Whenever possible, you depth of borings or test pits, which must (1) Avoiding disturbance of the stream must place fills upon or above a natural be determined according to the size of is not reasonably possible; and terrace, bench, or berm if that location the spoil disposal structure and (2) The proposed activities will would provide additional stability and subsurface conditions. You also must comply with all applicable requirements prevent mass movement. provide the engineering specifications in paragraphs (b) and (c) of § 817.57 of (5) Design plans. Detailed design used to design the keyway cuts or rock- this chapter. plans for each structure, prepared in toe buttresses. Those specifications (c) Application requirements for accordance with the requirements of must be based upon the stability surface activities within 100 feet of a this section and §§ 817.71 through analysis required under paragraph perennial or intermittent stream. If you 817.74 of this chapter. You must design (a)(7)(v) of this section. propose to conduct surface activities the fill and appurtenant structures using (b) Design certification. A qualified within 100 feet of a perennial or current prudent engineering practices registered professional engineer intermittent stream, but not in the and any additional design criteria experienced in the design of earth and stream itself, and those activities would established by the regulatory authority. rock fills must certify that the design of occur on the surface of land subject to

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the buffer requirement of § 817.57(a)(1) section constitute the best technology mining and reclamation operations must of this chapter, your application must— currently available to— meet all applicable performance (1) Demonstrate that avoiding (i) Prevent the contribution of standards of the regulatory program disturbance of land within 100 feet of additional suspended solids to approved under the Act. The regulatory the stream either is not reasonably streamflow or runoff outside the permit authority uses the information collected possible or is not necessary to meet the area to the extent possible, as required to ensure that surface mining activities fish and wildlife and hydrologic balance by §§ 784.14(g) and 817.41(d)(1) of this are conducted in compliance with the protection requirements of the chapter; and requirements of the applicable regulatory program; (ii) Minimize disturbances and regulatory program. Persons intending (2) Identify any lesser buffer that you adverse impacts on fish, wildlife, and to conduct such operations must propose to implement instead of related environmental values to the respond to obtain a benefit. A Federal maintaining a 100-foot undisturbed extent possible, as required by agency may not conduct or sponsor, and buffer between surface activities and the §§ 784.21(b) and 817.97(a) of this you are not required to respond to, a perennial or intermittent stream; and chapter. collection of information unless it (3) Explain how the lesser buffer, (f) Relationship to the Clean Water displays a currently valid OMB control together with any other protective Act. (1) In all cases, your application number. measures that you propose to must identify the authorizations and implement, constitute the best certifications that you anticipate will be ■ 16. In § 816.11, revise paragraph (e) to technology currently available to— needed under sections 401, 402, and read as follows: (i) Prevent the contribution of 404 of the Clean Water Act, 33 U.S.C. § 816.11 Signs and markers. additional suspended solids to 1341, 1342, and 1344, and describe the * * * * * streamflow or runoff outside the permit steps that you have taken or will take to (e) Buffer markers. The boundaries of area to the extent possible, as required procure those authorizations and any buffer to be maintained between by §§ 784.14(g) and 817.41(d)(1) of this certifications. surface mining activities and a chapter; and (2) The regulatory authority will perennial or intermittent stream in (ii) Minimize disturbances and process your application and may issue accordance with §§ 780.28 and 816.57 of adverse impacts on fish, wildlife, and the permit before you obtain all this chapter must be clearly marked to related environmental values to the necessary authorizations and avoid disturbance by surface mining extent possible, as required by certifications under the Clean Water activities. §§ 784.21(b) and 817.97(a) of this Act, 33 U.S.C. 1251 et seq., provided chapter. your application meets all applicable * * * * * (d) Approval requirements for requirements of subchapter G of this ■ 17. Amend § 816.43 as follows: activities in a perennial or intermittent chapter. However, issuance of a permit ■ A. Remove the last sentence of stream. Before approving any surface does not authorize you to initiate any paragraph (a)(3); activities in a perennial or intermittent activities for which Clean Water Act ■ B. Redesignate paragraph (a)(4) as stream, the regulatory authority must— authorization or certification is paragraph (a)(5) and add a new (1) Find in writing that— required. Information submitted and paragraph (a)(4); (i) Avoiding disturbance of the stream analyses conducted under subchapter G ■ C. Revise paragraphs (b)(1) and (b)(4); is not reasonably possible; and of this chapter may inform the agency and (ii) The plans submitted with the responsible for authorizations and ■ D. Add paragraph (b)(5). application meet all applicable certifications under sections 401, 402, The revisions and additions will read requirements in paragraphs (b) and (c) and 404 of the Clean Water Act, 33 as follows: of § 817.57 of this chapter. U.S.C. 1341, 1342, and 1344, but they (2) Include a permit condition are not a substitute for the reviews, § 816.43 Diversions. requiring a demonstration of authorizations, and certifications (a) * * * compliance with the Clean Water Act in required under those sections of the (4) A permanent diversion or a stream the manner specified in § 817.57(a)(2) of Clean Water Act. channel restored after the completion of this chapter before the permittee may mining must be designed and conduct any activities in a perennial or PART 816—PERMANENT PROGRAM constructed so as to restore or intermittent stream that require PERFORMANCE STANDARDS— approximate the premining authorization or certification under the SURFACE MINING ACTIVITIES characteristics of the original stream Clean Water Act. channel, including any natural riparian (e) Approval requirements for surface ■ 14. The authority citation for part 816 vegetation, to promote the recovery and activities within 100 feet of a perennial is revised to read as follows: enhancement of the aquatic habitat. or intermittent stream. Before approving Authority: 30 U.S.C. 1201 et seq. any surface activities that would disturb * * * * * the surface of land subject to the buffer ■ 15. Section 816.10 is revised to read (b) * * * requirement of § 817.57(a)(1) of this as follows: (1) The regulatory authority may chapter, the regulatory authority must approve the diversion of perennial or find in writing that— § 816.10 Information collection. intermittent streams within the permit (1) Avoiding disturbance of the In accordance with 44 U.S.C. 3501 et area if the diversion is located and surface of land within 100 feet of the seq., the Office of Management and designed to minimize adverse impacts stream either is not reasonably possible Budget (OMB) has approved the on fish, wildlife, and related or is not necessary to meet the fish and information collection requirements of environmental values to the extent wildlife and hydrologic balance this part and assigned clearance number possible, using the best technology protection requirements of the 1029–0047. Collection of this currently available. The permittee must regulatory program; and information is required under section construct and maintain the diversion in (2) The measures proposed under 515 of SMCRA, which provides that accordance with the approved design. paragraphs (c)(2) and (c)(3) of this permittees conducting surface coal * * * * *

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(4) A permanent stream-channel (b) Exception. The buffer requirement (1) The requirement in § 816.41(d)(1) diversion or a stream channel restored of paragraph (a) of this section does not of this part that surface mining activities after the completion of mining must be apply to those segments of a perennial be conducted according to the plan designed and constructed using natural or intermittent stream for which the approved under § 780.21(h) of this channel design techniques so as to regulatory authority, in accordance with chapter and that earth materials, restore or approximate the premining § 780.28(d) of this chapter or ground-water discharges, and runoff be characteristics of the original stream § 816.43(b)(1) of this part, approves one handled in a manner that prevents, to channel, including the natural riparian or more of the activities listed in the extent possible using the best vegetation and the natural hydrological paragraphs (b)(1) through (b)(4) of this technology currently available, characteristics of the original stream, to section. additional contribution of suspended promote the recovery and enhancement (1) Diversion of a perennial or solids to streamflow outside the permit of the aquatic habitat and to minimize intermittent stream. You must comply area; and otherwise prevents water adverse alteration of stream channels on with all other applicable requirements pollution. and off the site, including channel of the regulatory program, including the (2) The requirement in § 816.45(a) that deepening or enlargement, to the extent requirements of § 816.43(b) of this part appropriate sediment control measures possible. for the permanent or temporary be designed, constructed, and (5) A qualified registered professional diversion of a perennial or intermittent maintained using the best technology engineer must separately certify both stream. currently available to prevent, to the the design and construction of all (2) Placement of bridge abutments, extent possible, additional contributions diversions of perennial and intermittent culverts, or other structures in or within of sediment to streamflow or to runoff streams and all stream restorations. The 100 feet of a perennial or intermittent outside the permit area. design certification must certify that the stream to facilitate crossing of the (3) The requirement in § 816.97(a) of design meets the design requirements of stream by roads, railroads, conveyors, this part that the operator must, to the pipelines, utilities, or similar facilities. this section and any design criteria set extent possible using the best You must comply with all other by the regulatory authority. The technology currently available, applicable requirements of the construction certification must certify minimize disturbances and adverse regulatory program, including the that the stream-channel diversion or impacts on fish and wildlife and related requirements of §§ 816.150, 816.151, stream restoration meets all environmental values and achieve and 816.181 of this part, as appropriate. construction requirements of this (3) Construction of sedimentation enhancement of those resources where section and is in accordance with the pond embankments in a perennial or practicable. approved design. intermittent stream. This provision (4) The requirement in § 816.97(f) of * * * * * extends to the pool or storage area this part that the operator avoid disturbances to, enhance where § 816.46 [Amended] created by the embankment. You must comply with all other applicable practicable, restore, or replace wetlands, ■ 18. In § 816.46, remove paragraph requirements of the regulatory program, habitats of unusually high value for fish (b)(2) and redesignate paragraphs (b)(3) including the requirements of and wildlife, and riparian vegetation through (b)(6) as (b)(2) through (b)(5), § 816.45(a) of this part. Under § 816.56 along rivers and streams and bordering respectively. of this part, you must remove and ponds and lakes. ■ 19. Revise § 816.57 to read as follows: reclaim all sedimentation pond ■ 20. In § 816.71, revise paragraphs (a) embankments before abandoning the through (d) to read as follows: § 816.57 Hydrologic balance: Activities in permit area or seeking final bond release § 816.71 Disposal of excess spoil: General or adjacent to perennial or intermittent unless the regulatory authority approves streams. requirements. retention of the pond as a permanent (a)(1) Buffer requirement. Except as impoundment under § 816.49(b) of this (a) General. You, the permittee or provided in paragraph (b) of this section part and provisions have been made for operator, must place excess spoil in and consistent with paragraph (a)(2) of sound future maintenance by the designated disposal areas within the this section, you, the permittee or permittee or the landowner in permit area in a controlled manner to— operator, may not conduct surface accordance with § 800.40(c)(2) of this (1) Minimize the adverse effects of mining activities that would disturb the chapter. leachate and surface water runoff from surface of land within 100 feet, (4) Construction of excess spoil fills the fill on surface and ground waters; measured horizontally, of a perennial or and coal mine waste disposal facilities (2) Ensure mass stability and prevent intermittent stream, unless the in a perennial or intermittent stream. mass movement during and after regulatory authority authorizes you to You must comply with all other construction; do so under § 780.28(e) of this chapter. applicable requirements of the (3) Ensure that the final fill is suitable (2) Clean Water Act requirements. regulatory program, including the for reclamation and revegetation Surface mining activities, including requirements of paragraphs (a) and (f) of compatible with the natural those activities in paragraphs (b)(1) § 816.71 of this part for excess spoil fills surroundings and the approved through (b)(4) of this section, may be and the requirements of §§ 816.81(a), postmining land use; and authorized in perennial or intermittent 816.83(a), and 816.84 of this part for (4) Minimize disturbances to and streams only where those activities coal mine waste disposal facilities. adverse impacts on fish, wildlife, and would not cause or contribute to the (c) Additional clarifications. All related environmental values to the violation of applicable State or Federal surface mining activities conducted in extent possible, using the best water quality standards developed or within 100 feet of a perennial or technology currently available. pursuant to the Clean Water Act, as intermittent stream must comply with (b) Static safety factor. The fill must determined through certification under paragraphs (b)(10)(B)(i) and (b)(24) of be designed and constructed to attain a section 401 of the Clean Water Act or a section 515 of the Act and the minimum long-term static safety factor permit under section 402 or 404 of the regulations implementing those of 1.5. The foundation and abutments of Clean Water Act. provisions of the Act, including—

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the fill must be stable under all ■ 24. Amend § 817.43 as follows: § 817.46 [Amended] conditions of construction. ■ A. Remove the last sentence of ■ 25. In § 817.46, remove paragraph (c) Compliance with permit. You, the paragraph (a)(3); (b)(2) and redesignate paragraphs (b)(3) ■ permittee or operator, must construct B. Redesignate paragraph (a)(4) as through (b)(6) as (b)(2) through (b)(5), the fill in accordance with the design paragraph (a)(5) and add a new respectively. and plans submitted under § 780.35 of paragraph (a)(4); ■ 26. Revise § 817.57 to read as follows: this chapter and approved as part of the ■ C. Revise paragraphs (b)(1) and (b)(4); permit. and § 817.57 Hydrologic balance: Surface (d) Special requirement for steep- ■ D. Add paragraph (b)(5). activities in or adjacent to perennial or slope conditions. When the slope in the The revisions and additions will read intermittent streams. disposal area exceeds 2.8h:1v (36 as follows: (a)(1) Buffer requirement. Except as provided in paragraph (b) of this section percent), or any lesser slope designated § 817.43 Diversions. and consistent with paragraph (a)(2) of by the regulatory authority based on (a) * * * local conditions, you, the permittee or this section, you, the permittee or (4) A permanent diversion or a stream operator, may not conduct surface operator, must construct keyway cuts channel restored after the completion of (excavations to stable bedrock) or rock- activities that would disturb the surface mining must be designed and of land within 100 feet, measured toe buttresses to ensure fill stability. constructed so as to restore or horizontally, of a perennial or * * * * * approximate the premining intermittent stream, unless the characteristics of the original stream regulatory authority authorizes you to PART 817—PERMANENT PROGRAM channel, including any natural riparian do so under § 784.28(e) of this chapter. PERFORMANCE STANDARDS— vegetation, to promote the recovery and UNDERGROUND MINING ACTIVITIES (2) Clean Water Act requirements. enhancement of the aquatic habitat. Surface activities, including those ■ 21. The authority citation for part 817 * * * * * activities in paragraphs (b)(1) through is revised to read as follows: (b) * * * (b)(4) of this section, may be authorized (1) The regulatory authority may Authority: 30 U.S.C. 1201 et seq. in perennial or intermittent streams approve the diversion of perennial or only where those activities would not ■ 22. Section 817.10 is revised to read intermittent streams within the permit cause or contribute to the violation of as follows: area if the diversion is located and applicable State or Federal water quality designed to minimize adverse impacts standards developed pursuant to the § 817.10 Information collection. on fish, wildlife, and related Clean Water Act, as determined through environmental values to the extent In accordance with 44 U.S.C. 3501 et certification under section 401 of the possible, using the best technology seq., the Office of Management and Clean Water Act or a permit under currently available. The permittee must Budget (OMB) has approved the section 402 or 404 of the Clean Water construct and maintain the diversion in information collection requirements of Act. this part and assigned clearance number accordance with the approved design. (b) Exception. The buffer requirement 1029–0047. Collection of this * * * * * of paragraph (a) of this section does not information is required under section (4) A permanent stream-channel apply to those segments of a perennial 516 of SMCRA, which provides that diversion or a stream channel restored or intermittent stream for which the permittees conducting underground after the completion of mining must be regulatory authority, in accordance with coal mining operations must meet all designed and constructed using natural § 784.28(d) of this chapter or applicable performance standards of the channel design techniques so as to § 817.43(b)(1) of this part, approves one regulatory program approved under the restore or approximate the premining or more of the activities listed in Act. The regulatory authority uses the characteristics of the original stream paragraphs (b)(1) through (b)(4) of this information collected to ensure that channel, including the natural riparian section. surface mining activities are conducted vegetation and the natural hydrological (1) Diversion of a perennial or in compliance with the requirements of characteristics of the original stream, to intermittent stream. You must comply the applicable regulatory program. promote the recovery and enhancement with all other applicable requirements Persons intending to conduct such of the aquatic habitat and to minimize of the regulatory program, including the operations must respond to obtain a adverse alteration of stream channels on requirements of § 817.43(b) of this part benefit. A Federal agency may not and off the site, including channel for the permanent or temporary conduct or sponsor, and you are not deepening or enlargement, to the extent diversion of a perennial or intermittent required to respond to, a collection of possible. stream. information unless it displays a (5) A qualified registered professional (2) Placement of bridge abutments, currently valid OMB control number. engineer must separately certify both culverts, or other structures in or within ■ 23. In § 817.11, revise paragraph (e) to the design and construction of all 100 feet of a perennial or intermittent read as follows: diversions of perennial and intermittent stream to facilitate crossing of the streams and all stream restorations. The stream by roads, railroads, conveyors, § 817.11 Signs and markers. design certification must certify that the pipelines, utilities, or similar facilities. * * * * * design meets the design requirements of You must comply with all other (e) Buffer markers. The boundaries of this section and any design criteria set applicable requirements of the any buffer to be maintained between by the regulatory authority. The regulatory program, including the surface activities and a perennial or construction certification must certify requirements of §§ 817.150, 817.151, intermittent stream in accordance with that the stream-channel diversion or and 817.181 of this part, as appropriate. §§ 784.28 and 817.57 of this chapter stream restoration meets all (3) Construction of sedimentation must be clearly marked to avoid construction requirements of this pond embankments in a perennial or disturbance by surface operations and section and is in accordance with the intermittent stream. This provision facilities. approved design. extends to the pool or storage area * * * * * * * * * * created by the embankment. You must

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comply with all other applicable handled in a manner that prevents, to (1) Minimize the adverse effects of requirements of the regulatory program, the extent possible using the best leachate and surface water runoff from including the requirements of technology currently available, the fill on surface and ground waters; § 817.45(a) of this part. Under § 817.56 additional contribution of suspended (2) Ensure mass stability and prevent of this part, you must remove and solids to streamflow outside the permit mass movement during and after reclaim all sedimentation pond area; and otherwise prevents water construction; embankments before abandoning the pollution. (3) Ensure that the final fill is suitable permit area or seeking final bond release (2) The requirement in § 817.45(a) that for reclamation and revegetation unless the regulatory authority approves appropriate sediment control measures compatible with the natural retention of the pond as a permanent be designed, constructed, and surroundings and the approved impoundment under § 817.49(b) of this maintained using the best technology postmining land use; and currently available to prevent, to the part and provisions have been made for (4) Minimize disturbances to and extent possible, additional contributions sound future maintenance by the adverse impacts on fish, wildlife, and of sediment to streamflow or to runoff permittee or the landowner in related environmental values to the accordance with § 800.40(c)(2) of this outside the permit area. (3) The requirement in § 817.97(a) of extent possible, using the best chapter. technology currently available. (4) Construction of excess spoil fills this part that the operator must, to the extent possible using the best (b) Static safety factor. The fill must and coal mine waste disposal facilities be designed and constructed to attain a in a perennial or intermittent stream. technology currently available, minimize disturbances and adverse minimum long-term static safety factor You must comply with all other of 1.5. The foundation and abutments of applicable requirements of the impacts on fish and wildlife and related environmental values and achieve the fill must be stable under all regulatory program, including the conditions of construction. requirements of paragraphs (a) and (f) of enhancement of those resources where practicable. (c) Compliance with permit. You, the § 817.71 of this part for excess spoil fills (4) The requirement in § 817.97(f) of permittee or operator, must construct and the requirements of §§ 817.81(a), this part that the operator avoid the fill in accordance with the design 817.83(a), and 817.84 of this part for disturbances to; enhance where and plans submitted under § 784.19 of coal mine waste disposal facilities. practicable; restore; or replace wetlands, this chapter and approved as part of the (c) Additional clarifications. All habitats of unusually high value for fish permit. surface activities conducted in or within and wildlife, and riparian vegetation (d) Special requirement for steep- 100 feet of a perennial or intermittent along rivers and streams and bordering slope conditions. When the slope in the stream must comply with paragraphs ponds and lakes. disposal area exceeds 2.8h:1v (36 (b)(9)(B) and (b)(11) of section 516 of the ■ 27. In § 817.71, remove paragraph (k) percent), or any lesser slope designated Act and the regulations implementing and revise paragraphs (a) through (d) to by the regulatory authority based on those provisions of the Act, including— read as follows: local conditions, you, the permittee or (1) The requirement in § 817.41(d)(1) operator, must construct keyway cuts of this part that surface activities be § 817.71 Disposal of excess spoil: General (excavations to stable bedrock) or rock- conducted according to the plan requirements. toe buttresses to ensure fill stability. approved under § 784.14(g) of this (a) General. You, the permittee or * * * * * chapter and that earth materials, operator, must place excess spoil in ground-water discharges, and runoff be designated disposal areas within the [FR Doc. E8–29150 Filed 12–11–08; 8:45 am] permit area in a controlled manner to— BILLING CODE 4310–05–P

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Part III

Commodity Futures Trading Commission 17 CFR Parts 15, 16, 17, et al. Significant Price Discovery Contracts on Exempt Commercial Markets; Proposed Rule

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COMMODITY FUTURES TRADING 2. Exempt Commercial Markets Facilities (‘‘DTEFs’’) 4 are subject to less COMMISSION 3. Differences Between ECMs and DCMs regulatory oversight than DCMs because B. The Changing ECM Landscape participants must be sophisticated 17 CFR Parts 15, 16, 17, 18, 19, 21, 36, C. The CFTC’s Response to the Changing investors or must be hedging risk and 40 Energy Markets associated with their commercial 1. Empirical Study of Trades on ICE and NYMEX activities. Additionally, the CFMA Significant Price Discovery Contracts imposes limitations on the types of on Exempt Commercial Markets 2. Commission Surveillance of Energy Markets commodities that may be traded, and AGENCY: Commodity Futures Trading 3. The Commission’s ECM Hearing the manner in which they may be 5 Commission. 4. The Commission’s Findings and traded. Exempt Boards of Trade Legislative Recommendations (‘‘EBOTs’’) are subject to virtually no ACTION: Proposed rules. D. The Reauthorization Legislation and the regulatory oversight and are not Statutory Scheme SUMMARY: The Commodity Futures registered with or designated by the II. The Proposed Rules Commission. EBOTs are exempt from Trading Commission (‘‘Commission’’ or A. Part 36—Exempt Markets ‘‘CFTC’’) is proposing rules to 1. Required Information most provisions of the CEA other than implement the CFTC Reauthorization 2. Identifying Significant Price Discovery its antifraud and anti-manipulation Act of 2008 (‘‘Reauthorization Act’’).1 In Contracts prohibitions, but are subject to pertinent part, the Reauthorization Act (i) Criteria for SPDC Determination significant commodity and participant amends the Commodity Exchange Act to (ii) Notification Requirement for ECMs restrictions.6 In addition to creating significantly expand the CFTC’s With a SPDC these three new categories of trading regulatory authority over exempt 3. Procedures facility, the CFMA created a broad array commercial markets (‘‘ECMs’’), which 4. Substantive Compliance With the Core of exclusions and exemptions from Principles regulation for certain swaps and other had heretofore operated largely outside 5. Annual Commission Review the Commission’s regulatory reach, by B. Market, Transaction and Large Trader derivatives products traded either creating a new regulatory category— Reporting Rules bilaterally or on electronic trading ECMs with significant price discovery C. Other Regulatory Provisions facilities.7 These exclusions and contracts (‘‘SPDCs’’)—and directing the 1. Part 40—Provisions Common to exemptions reflected a view, consistent Commission to adopt rules to Registered Entities with Congressional and Commission implement this expanded authority. In III. Related Matters actions relating to the passage of the addition to proposing regulations A. Cost Benefit Analysis CFMA, that transactions between mandated by the Reauthorization Act, B. Regulatory Flexibility Act sophisticated counterparties do not C. Paperwork Reduction Act necessarily require the protections that the Commission is also proposing to List of Subjects: Proposed Rules amend existing regulations applicable to the CEA provides for transactions on registered entities in order to clarify that I. Background DCMs and DTEFs. such regulations are now applicable to A. The Commodity Futures 2. Exempt Commercial Markets ECMs with SPDCs. Modernization Act of 2000 Established The CFMA established an exemption DATES: Comments must be received by a New Regulatory Framework for transactions in exempt commodities February 10, 2009. 1. Multi-Tiered Regulation traded on electronic trading facilities, ADDRESSES: You may submit comments also known as exempt commercial by any of the following methods: On December 21, 2000, Congress 8 • markets (‘‘ECMs’’). To qualify as an Federal eRulemaking Portal: http:// enacted the Commodity Futures ECM, a facility must limit its www.regulations.gov. Modernization Act (‘‘CFMA’’), which transactions to principal-to-principal • Mail/Hand Deliver: David Stawick, amended the Commodity Exchange Act transactions executed between ‘‘eligible Secretary of the Commission, 2 (‘‘Act’’ or ‘‘CEA’’) to replace the Act’s commercial entities’’ (‘‘ECEs’’) 9 on an Commodity Futures Trading ‘‘one-size-fits-all’’ supervisory ‘‘electronic trading facility.’’ 10 Contracts Commission, Three Lafayette Centre, framework for futures trading with a 1155 21st Street, NW., Washington, DC multi-tiered approach to regulatory 4 To qualify as a DTEF, an exchange must 20581. oversight of derivatives markets. The implement certain restrictions on retail market • E-mail: [email protected]. CFMA applies different levels of participation and can only trade certain FOR FURTHER INFORMATION CONTACT: regulatory oversight to markets based commodities (including excluded commodities and other commodities with very high levels of Susan Nathan, Senior Special Counsel, primarily on the nature of the deliverable supply) and generally must exclude Division of Market Oversight, underlying commodity being traded and retail participants. CFTC Glossary (Glossary). Commodity Futures Trading the participants who are trading. In 5 7 U.S.C. 7a. Commission, Three Lafayette Centre, general, the more sophisticated the 6 EBOTs may trade only ‘‘excluded commodities’’ 1155 21st Street, NW., Washington, DC traders or commercial participants, or (7 U.S.C. 1a(13); 17 CFR § 36.2(a)(2)(i)), and are open only to ‘‘eligible contract participants’’ 20581. Telephone: (202) 418–5133. the less susceptible a commodity is to (‘‘ECPs’’) (7 U.S.C. 1a(12)). E-mail: [email protected]. manipulation or other market or trading 7 For example, section 2(g) created an exclusion SUPPLEMENTARY INFORMATION: abuses, the less regulatory oversight is from the CEA for individually negotiated swaps, required under the CFMA. based on non-agricultural commodities entered into Table of Contents Accordingly, designated contract between eligible contract participants, 7 U.S.C. 2(g). I. Background Similarly excluded are transactions between ECPs markets (‘‘DCMs’’), are subject to the involving excluded commodities that are not A. The Commodity Futures Modernization highest level of regulatory oversight executed on a trading facility. 7 U.S.C. 2(d)(1). Act of 2000 Established a New because they are open to all participants 8 7 U.S.C. 2(h)(3)–(5). Regulatory Framework 3 9 7 U.S.C. 1a(11) (a subset of ECPs). 1. Multi-Tiered Regulation and may offer all types of commodities. Derivatives Transaction Execution 10 7 U.S.C. 1a(10). For purposes of this proposed rulemaking, the terms electronic trading facility and 1 Incorporated as Title XIII of the Food, ECM are used interchangeably. The term ‘‘trading Conservation and Energy Act of 2008, Pub. L. No. 2 7 U.S.C. 1 et seq. facility’’ means a person or group of persons that 110–246, 122 Stat. 1624 (June 18, 2008). 3 7 U.S.C. 7. constitutes, maintains, or provides a physical or

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for all commodities except agricultural principles’ mandate that DCMs small operations with low trading and excluded commodities (primarily undertake significant supervisory volumes that were small relative to financial commodities but also responsibility with respect to trading on DCMs. The first ECMs did not offer commodities such as weather) their markets. DCMs must, for example, centralized clearing, but sought to potentially are eligible to trade on an establish rules and procedures for address counterparty risk through the ECM. Examples of commodities traded preventing market manipulation and use of credit filters whereby traders on ECMs are energy products, metals, must adopt necessary and appropriate could limit their potential chemicals, air emission allowances, position limit or accountability rules to counterparties to a list of traders whose paper pulp, and barge freight rates.11 address the potential for manipulation credit they found satisfactory. ECMs fall somewhere between DTEFs or congestion. DCMs also must establish Significantly, early ECM contracts were and EBOTs on the regulatory oversight compliance and surveillance programs, not linked to contracts listed on DCMs. spectrum. Like EBOTs, they are neither which the Commission evaluates Over time, however, ECMs began to licensed nor registered with the CFTC through rule enforcement reviews,15 offer ‘‘look-alike’’ contracts that were and are subject to the Act’s antifraud must monitor trading on their markets linked to the settlement prices of their and anti-manipulation provisions.12 In and must undertake other self- exchange-traded counterparts, and these addition, and different from EBOTs, regulatory responsibilities mandated by look-alike contracts in one case began to ECMs are subject to certain the CEA. garner significant volumes. In recent recordkeeping and reporting The CFMA did not impose these years, several active ECMs began to offer requirements under the CEA.13 obligations on ECMs. While the the option of centralized clearing for Commission was given the authority to their contracts—an option which 3. Differences Between ECMs and DCMs determine whether an ECM performs a became widely utilized by their ECMs are not subject to the level of significant price discovery function for customers to manage counterparty risk. transparency and Commission oversight transactions in an underlying cash 16 This evolution, and particularly the associated with DCMs. DCMs must market, such a determination did not linkage of ECM contract settlement satisfy specified criteria to become trigger any self-regulatory prices to DCM futures contract designated, and then must demonstrate responsibilities for the ECM or confer settlement prices, began to raise continuing compliance with 18 core any additional oversight authority on questions about whether ECM trading principles set out in the Act.14 The Act the Commission. Rather, the presence of activity could impact trading on DCMs provides flexibility with respect to how a contract performing a significant price and whether the CFTC had adequate DCMs may choose to meet the core discovery function required the ECM to authority to address that impact and publicly disseminate certain basic protect markets from manipulation and electronic facility or system in which multiple information, such as contract terms and abuse. Of special concern to CFTC staff participants have the ability to execute or trade conditions and daily trading volume, agreements, contracts or transactions—(i) by was the existence of the ECM cash- open interest, and opening and closing settled ‘‘look-alike’’ contracts that could accepting bids or offers made by other participants prices or price ranges.17 that are open to multiple participants in the facility provide an incentive to manipulate the or system; or (ii) through the interaction of multiple B. The Changing ECM Landscape settlement price of an underlying DCM bids or multiple offers within a system with a pre- determined non-discretionary automated trade Following enactment of the CFMA in futures contract to benefit positions in matching and execution algorithm. 7 U.S.C. 1a(34). December 2000, the first ECMs that the look-alike ECM contract. As 11 7 U.S.C. 1a(14). notified the Commission of their intent discussed more fully below, the 12 Sections 2(h)(4)(B) and (C) of the Act, 7 U.S.C. to operate generally were simple trading Commission subsequently considered 2(h)(4)(B) and (C). and studied these concerns in a variety 13 For example, an ECM must maintain for five platforms, resembling in many ways years and make available for inspection records of business-to-business facilities for large of ways, culminating, in September its activities relating to its business as a trading commercial firms. ECMs facilitate the 2007, in a public hearing examining facility. 7 U.S.C. 2(h)(5)(B)(ii). More specifically, execution of trades between commercial trading on regulated exchanges and Commission rule 36.3, 17 CFR 36.3, requires that ECMs.18 an ECM identify to the Commission those counterparties by offering an transactions for which it intends to rely on the anonymous and efficient electronic C. The CFTC’s Response to the exemption in section 2(h)(3) of the CEA and which matching system which many believed Changing Energy Markets averaged five trades per day or more over the most to be superior to the existing voice recent calendar quarter. For all such transactions, 1. Empirical Study of Trades on ICE 19 the ECM must provide to the Commission weekly broker system, and to provide a reports showing certain basic trading information, competitive advantage over the bilateral and NYMEX or provide the Commission with electronic access OTC market, especially for energy During the last several years, one ECM that would allow it to compile the same products. Initially, most ECMs were information. 17 CFR 36.3(b)(1)(ii). An ECM also in particular—the Intercontinental must provide to the Commission, upon special call, any information relating to its business that the 15 The Commission conducts regular rule 18 See Commodity Futures Trading Commission, Commission determines is appropriate to enforce enforcement reviews of the self regulatory programs Report on the Oversight of Trading on Regulated the antifraud and anti-manipulation provisions of operated by DCMs for enforcing exchange rules, Futures Exchanges and Exempt Commercial the CEA, to evaluate a systemic market event, or to preventing market manipulations and customer and Markets (October 2007), http://www.cftc.gov/ obtain information on behalf of another federal market abuses, and ensuring that trade related stellent/groups/public/@newsroom/documents/file/ financial regulator. 7 U.S.C. 2(h)(5)(B)(iii); 17 CFR information is recorded and stored in a manner pr5403-07_ecmreport.pdf for a comprehensive 36.3(b)(3). An ECM must maintain a record of any consistent with the Act. report of the Commission’s findings following its allegations or complaints it receives concerning 16 In 2004, the Commission amended its part 36 September 2007 hearing (‘‘ECM Report’’). suspected fraud or manipulation and must provide rules to include the requirement that an ECM notify 19 Intercontinental Exchange, or ICE, consists of the Commission with a copy of the record of each the Commission when it has reason to believe that four separate entities: ICE OTC, to which this such complaint. 17 CFR 36.3(b)(1)(iii). Finally, an one or more of the markets on which it is document refers, is an ECM trading energy ECM is required to file an annual certification that conducting agreements, contracts or transactions in products. ICE Future Europe trades energy futures it continues to operate in reliance on the exemption reliance on section 2(h)(3) of the CEA has been met and is regulated by the Financial Services Authority in section 2(h)(3) of the Act and that the or if the market holds itself out to the public as of Great Britain; ICE Futures US focuses primarily information it previously provided to the performing a price discovery function for the cash on futures based on soft commodities (e.g., coffee, Commission remains correct. 17 CFR 36.3(c)(4). market of a commodity. 17 CFR 36.3(c)(2)(i) and (ii). sugar, cocoa, cotton) and financial futures and is 14 See sections 5(d)(1)–(18) of the Act, 7 U.S.C. 69 FR 43285 (July 20, 2004). regulated by the CFTC; ICE Futures Canada trades 7(d)(1)–(18). 17 Id. Continued

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Exchange (‘‘ICE’’)—has become a major analogous large trader information from at the hearing included Commission trading venue for natural gas contracts ECMs, the Commission had to issue staff, representatives of DCMs and in direct competition with the New special calls.23 Based on the prominent ECMs, and representatives of a broad York Mercantile Exchange (‘‘NYMEX’’) role played by the ICE natural gas spectrum of market users and consumer natural gas benchmark futures contract, contract in the price discovery process groups. The hearing focused on a in addition, Commission staff has found and the possible impact on the NYMEX number of issues, including the tiered that the traders on ICE are virtually the natural gas contract, the Commission regulatory approach of the CFMA and same as the traders on NYMEX. All of determined to issue a series of special whether it was adequate; the similarities the top 25 natural gas traders on calls for information related to ICE’s and differences between ECMs and NYMEX are also significant traders on cleared natural gas swap contracts that DCMs; the associated regulatory risks of ICE. For the Henry Hub natural gas are cash-settled based on the settlement each market category; the types of market,20 market participants generally price of the NYMEX physical delivery regulatory or legislative changes that view ICE and NYMEX as essentially a natural gas contract.24 may be appropriate to address identified single market, looking to both ICE and 3. The Commission’s ECM Hearing risks; and the impact that regulatory or NYMEX when determining where to legislative changes might have on the execute a trade at the best price. Following the OCE study and the U.S. futures industry and the global To assess these changes in the special calls issued to ICE, the competitiveness of the U.S. financial marketplace, the Commission’s Office of Commission held a public hearing on industry. In announcing the hearing, the Chief Economist (‘‘OCE’’) conducted September 18, 2007, to examine the CFTC Acting Chairman Lukken an empirical study of the relationship oversight of DCMs and ECMs. Witnesses observed that: between the natural gas contracts that The evolution of these energy markets trade on ICE and NYMEX. OCE the LTRS, clearing members, futures commission merchants and foreign brokers file daily reports [ECMs] in recent years requires our agency to collected transaction prices for ICE and with the CFTC showing futures and option address whether the level of regulatory NYMEX natural gas contracts from positions in accounts they carry that are above oversight is proper given the importance of January 3, 2006 through December 31, reporting levels set by the Commission. The energy prices to all Americans.* * * This 2006 and evaluated trading for 12 reporting level for the NYMEX natural gas futures oversight hearing will provide a better contract months when trading on each market is 200 contracts. understanding of the inter-relationship of 23 Section 2(h)(5)(B)(iii) of the Act, 7 U.S.C. these trading venues so policymakers can market was appropriately active. OCE 2(h)(5)(B)(iii), requires that an electronic trading examined the timing of price changes on make informed decisions to protect these facility relying on the exemption provided in vital markets.25 ICE and NYMEX to draw inferences section 2(h)(3) must, upon a special call by the about where information arrives first. If Commission, provide such information related to its 4. The Commission’s Findings and business as an electronic trading facility as the price changes on one venue consistently Commission may determine appropriate to enforce Legislative Recommendations ‘‘led’’ those on the other venue, then the antifraud provisions of the CEA, to evaluate a Based on information developed OCE concluded that informed traders systemic market event, or to obtain information through various studies, surveillance, preferred trading at that ‘‘leading’’ requested by a Federal financial regulatory authority in connection with its regulatory or special calls and its public hearing, the venue and inferred that market to be supervisory responsibilities. Commission published in October 2007 21 ‘‘discovering’’ prices. OCE found that 24 The special calls were issued primarily to assist a ‘‘Report on the Oversight of Trading ICE exhibited price leadership with the Commission in its surveillance of the NYMEX on Regulated Futures Exchanges and respect to NYMEX on 20 percent of the natural gas contract. They were not issued as part of an investigation of any particular market Exempt Commercial Markets.’’ (‘‘ECM contract-days, while NYMEX exhibited participant or trading activity on either ICE or Report’’).26 The report was provided to price leadership on 63 percent of the NYMEX, nor were they issued to conduct regular the Commission’s Congressional contract-days. OCE concluded that these market surveillance of ICE. The first special call, oversight committees, which were then results suggested that both ICE and issued on September 28, 2006, requested daily clearing member position data for ICE’s natural gas in the process of considering legislation NYMEX are significant price discovery swap contracts, broken out between house and to amend the CEA and reauthorize the venues for natural gas futures contracts. aggregate customer positions, which is similar to Commission. information that the Commission receives from The ECM Report noted that while 2. Commission Surveillance of the NYMEX pursuant to Commission rule 16.00. This Energy Markets information permits CFTC market surveillance staff some participants disagreed, most witnesses at the September 18 hearing The Commission’s surveillance of to see all cleared positions at the clearing member level, but it is not possible to determine individual generally supported the tiered natural gas energy markets traditionally customer positions. To obtain daily individual regulatory structure of the CFMA, but has focused on the regulated futures trader positions, the Commission issued a second special call on December 1, 2006. While the data expressed concern regarding the markets traded on NYMEX. Prior to the regulatory provisions governing ECMs Reauthorization Act, ECMs were not received is similar to large trader reporting for DCMs, the methodology for reporting is very and the regulatory disparity between subject to the requirements of the different. Because ICE is a principal-to-principal DCMs and ECMs.27 Witnesses suggested Commission’s large trader reporting market and therefore does not receive position that this disparity made markets more system (‘‘LTRS’’).22 In order to obtain reporting from firms, it was necessary for ICE to develop an algorithm to infer open positions from susceptible to manipulation and put the sum of all trading by each individual trader. regulated exchanges at a competitive futures and options and is regulated by the While this approach has provided valuable disadvantage vis-a`-vis ECMs offering Manitoba Securities Commission. information, it is less accurate than traditional large 20 Henry Hub is a natural gas pipeline hub in trader reporting. The third special call, issued on virtually identical products. Generally, Louisiana that serves as the delivery point for September 5, 2007, required ICE to provide all most witnesses felt that some changes to NYMEX natural gas futures contracts and often cleared transaction data for its Henry Hub swap the ECM provisions might be serves as a benchmark for wholesale natural gas contracts and identify counterparties for the final appropriate, provided those changes prices across the U.S. Glossary. two trading sessions prior to the expiration of 21 See ECM Report at 11–12. Price discovery is the prompt month Henry Hub natural gas products. process of determining the price level for a This data is similar to transaction data that the 25 CFTC Release 5368–07, August 2, 2007 (CFTC commodity based on supply and demand Commission receives from NYMEX for all trading Announces September Hearing to Examine Trading conditions. Price discovery may occur in a futures days and enables CFTC staff to monitor trading on Regulated Exchanges and Exempt Commercial market or cash market. Glossary. activity on ICE and obtain more complete coverage Markets). 22 The LTRS is the centerpiece of the to counter possible manipulative schemes that 26 supra n. 20. Commission’s market surveillance system. Under could affect trading on ICE. 27 Id. at 15.

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were prudently targeted and did not essential tools for the Commission and the CEA may perform a price discovery adversely affect the ability of ECMs to the ECM to prevent manipulation and function.31 innovate and grow.28 disruptions of the delivery or cash- The Reauthorization Act significantly Based on the hearing testimony and settlement process. broadens the CFTC’s regulatory its own experience in administering the The Commission further authority over ECMs by creating, in Act, the Commission at that time recommended that the determination section 2(h)(7) of the CEA, a new concluded that the tiered approach of regulatory category—ECMs on which whether an ECM contract serves a the CFMA generally had operated SPDCs are traded—and treating significant price discovery function effectively. ECMs had proven popular electronic trading facilities in that should focus on the following factors: for new start-up markets and had category as registered entities subject to provided competition for DCMs, (1) Material Liquidity—trading volume all provisions of the CEA that are spurring them toward innovations of in the ECM contract must be significant applicable to registered entities.32 The their own. The Commission further enough to affect regulated markets or to legislation confers on the CFTC the found that, to the extent that trading become a pricing benchmark; and (2) authority to designate an agreement, volume on an ECM contract remained Linkage/Material Price Reference—the contract or transaction as a SPDC if the low and its prices were not significantly relevant ECM contract must either Commission determines, in its relied upon by other markets, the influence other markets and discretion, that the agreement, contract current level of regulation remained transactions through this linkage or be or transaction performs a significant appropriate. However, when a futures materially referenced by others in price discovery function under criteria contract traded on an ECM matured and interstate commerce on a frequent and established by section 2(h)(7). When the began to serve a significant price recurring basis. Commission makes such a discovery function for transactions in D. The Reauthorization Legislation and determination, the ECM on which the commodities in interstate commerce, SPDC is traded must assume, with the Statutory Scheme the contract warranted increased respect to that contract or contracts, all oversight to deter and prevent price The CFTC Reauthorization Act of the responsibilities and obligations of a manipulation or other disruptions to 2008 29 adds a new section 2(h)(7) to the registered entity under the Act and market integrity, both on the ECM itself CEA to govern the treatment of Commission regulations, and must and in any related futures contracts comply with nine core principles trading on DCMs. Such increased ‘‘significant price discovery contracts’’ (‘‘SPDCs’’) on ECMs.30 The legislation, established by new section 2(h)(7)(C)— oversight would also help to ensure fair including the obligation to establish competition among ECMs and DCMs based largely on the Commission’s recommendations for improving position limits and/or accountability trading similar products and competing 33 oversight of ECMs, provides for greater standards for SPDCs. The for the same business. Reauthorization Act separately amends In light of these conclusions, the regulation of contracts traded on ECMs section 4i of the CEA to authorize the Commission’s ECM Report that fulfill a significant price discovery Commission to require large trader recommended that the CEA be amended function and establishes criteria for the reports for SPDCs listed on ECMs.34 to grant the Commission additional Commission to consider in determining Consistent with Congress’ directive, authority over ECM contracts serving a whether an ECM contract qualifies as a the Commission is issuing this proposed significant price discovery function, and SPDC. The Reauthorization Act directs notice of rulemaking as an initial step to that certain self-regulatory the CFTC to extend its regulatory implementing the amended statutory responsibilities be assigned to ECMs oversight to the trading of SPDCs; scheme for ECMs with SPDCs.35 offering such contracts. Specifically, the These requires ECMs to adopt position and regulations are applicable to exempt Commission advocated that (1) An ECM accountability limits for SPDCs; contract that is determined to perform a markets, but also implicate parts 16 authorizes the Commission to require through 21 (market, transaction and significant price discovery function be large traders to report their positions in subject to large trader reporting large trader reporting rules), and 40 SPDCs; and establishes core principles (provisions common to contract requirements comparable to those for ECMs with contracts that are applicable to all DCM contracts; (2) an markets, derivatives transaction determined to perform a significant execution facilities and derivatives ECM should be required to adopt price discovery function. Finally, the position limits or accountability levels, clearing organizations). legislation directs the Commission to as appropriate, for a listed contract that issue rules implementing the provisions 31 serves a significant price discovery Pub. L. 110–246 at sec. 12304. See also of new section 2(h)(7) of the CEA and Conference Committee Report, at 985–86; 2008 function similar to the limits on DCMs; to include in such rules the conditions Farm Bill Commodity Futures Title: Strengthening (3) an ECM should be required to Oversight of Futures Markets, House Committee on monitor trading of a listed contract that under which an ECM will have the Agriculture (May 9, 2008) http:// serves a significant price discovery responsibility to notify the Commission agriculture.house.gov/inside/Legislation/110/FB/ Conf/Title_XIII_fs.pdf. function to detect and prevent that an agreement, contract or transaction conducted in reliance on the 32 Conference Committee Report, at 985–86. manipulation, price distortion, and 33 Congress has made clear that an ECM with a disruptions of the delivery or cash- exemption provided in section 2(h)(3) of SPDC shall be considered as a registered entity for settlement process; and (4) the purposes of the CEA. Id. at 985. Commission and the ECM should be 29 Public Law No. 110–246, supra. n. 1 (‘‘Pub. L. 34 Public Law 110–246 at sec. 13202. provided with emergency authority to 110–246’’). The Reauthorization Act was 35 Id. at sec. 13204. Congress has directed that the incorporated into the Food, Conservation and Commission issue proposed rules implementing alter or supplement contract rules, Energy Act of 2008 as Title XIII of that legislation. section 2(h)(7) of the CEA not later than 180 days liquidate open positions, and suspend Title XIII was not the subject of Congressional after the date of enactment of the Reauthorization or curtail trading in any listed contract hearings and the legislative history is limited to The Act and that the Commission issue a final rule no that serves a significant price discovery Joint Explanatory Statement of the Committee of later than 270 days after the date of enactment. The Conference, H.R. Rep. No. 110–627, 110 Cong., 2d Reauthorization Act initially was enacted as H.R. function. These authorities would be Sess. at 978–86 (2008) (Conference Committee 2419 on May 22, 2008 but was repealed due to Report). clerical error—and concurrently enacted—by H.R. 28 Id. 30 7 U.S.C. 2(h)(7). 2164, Public Law 110–264 on June 18, 2008.

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II. The Proposed Rules transaction executed or traded on the comply with the daily reporting and trading facility is a SPDC, the trading publication requirements of regulation A. Part 36—Exempt Markets facility may represent that it is a 16.01.40 Part 36 of the Commission’s registered entity, provided that the 2. Identifying Significant Price regulations contains the provisions that representation clearly and prominently apply to exempt boards of trade and to states that the ECM is a registered entity Discovery Contracts exempt commercial markets, regardless only with respect to its SPDCs. The Reauthorization Act directs the of whether the markets are a significant In general, the proposed information Commission to consider, as appropriate, source for price discovery. Rule 36.3 submission requirements for ECMs four specific criteria when identifying imposes a number of requirements and without SPDCs are drafted to be whether an agreement, contract or restrictions on ECMs—electronic trading substantively similar to the information transaction is a SPDC: Price linkage, facilities relying on the exemption in that all ECMs currently are required to arbitrage, material price reference, and section 2(h)(3) of the CEA—including provide.38 A significant change to the material liquidity.41 The legislation notification of intent to rely on the submission requirements for ECMs is further directs that in its rulemaking to exemption; initial and ongoing the proposed requirement to file, implement the provisions of section information submission requirements; initially and on a quarterly basis, 2(h)(7) of the CEA, the Commission prohibited representations; price information about the terms and shall include the standards, as well as discovery notification; and price conditions as well as related conditions under which an ECM will dissemination requirements. The information for all contracts traded on have the responsibility to notify the Commission proposes to amend rule the facility. Although the proposed rules Commission that a contract traded on 36.3 to implement its broadened set forth the terms, standards and the facility may perform a significant regulatory authority over ECMs with conditions under which an ECM will be price discovery function. Accordingly, SPDCs under section 2(h)(7) of the CEA. responsible to notify the Commission proposed rule 36.3(c) addresses: (i) The 1. Required Information that it may have a SPDC, the criteria on which the Commission will Commission is mindful that it must rely in making a determination that an The notification provision in rule independently be aware of ECM agreement, contract or transaction is a 36.3(a) is unchanged. The Commission contracts that may develop into SPDCs. SPDC; (ii) the factors that will trigger the proposes to amend rule 36.3(b) to The Commission believes that requiring ECM’s obligation to notify the separately specify the information ECMs to identify all agreements, Commission that it may have a SPDC; submission requirements, both initially contracts and transactions and to (iii) the procedures the Commission will and on an ongoing basis, for: (1) All provide basic trading information will follow in reaching its determination ECMs; (2) for ECMs with respect to enable it to fulfill that obligation. To whether a contract is a SPDC (and in agreements, contracts or transactions that end, the Commission proposes to determining that a contract is no longer that have not been determined to retain for non-SPDCs the requirement a SPDC); and (iv) the procedures and perform a significant price discovery that ECMs submit to the Commission standards by which an ECM with a function; and (3) for ECMs with weekly reports (or alternatively provide SPDC must demonstrate compliance SPDCs.36 The proposed amendment to electronic access that would allow the with the core principles. rule 36.3(b) additionally includes Commission to capture the same (i) Criteria for SPDC Determination. In provisions related to subpoenas, special information) for contracts that average enacting new section 2(h)(7) of the CEA, calls and the delegation of authority and 39 five trades per day or more. In Congress specified four criteria that the provides that an electronic trading addition, the Commission is proposing Commission must consider in making a facility relying on the exemption in to add a quarterly reporting requirement determination that an agreement, section 2(h)(3) of the Act shall not, with for all non-SPDCs, to include their terms contract or transaction performs a respect to agreements, contracts or and conditions, average daily trading significant price discovery function. transactions that are not SPDCs, volume, and open interest. This Proposed rule 36.3(c)(1) enumerates the represent to any person that it is quarterly reporting requirement also is factors—price linkage, arbitrage, registered with, designated, recognized, being proposed to provide the licensed or approved by the material price reference, and material Commission with information that will liquidity. Because the legislation does Commission. This prohibition has its assist it in making prompt assessments origin in section 2(h)(5) of the CEA, not assign priority to any of the factors, whether ECM contracts may be SPDCs. and neither the statutory language nor which sets forth the requirements and ECMs should note that this provision obligations for ECMs. Although the the Conference Committee Report will require them to fulfill the quarterly specifies the degree to which any of the Reauthorization Act did not amend the reporting requirement beginning with prohibition on representation in section factors must be present, section the end of the calendar quarter 2(h)(7)(B) gives the Commission 2(h)(5)(7) of the Act, the legislation did following the adoption of these final amend the statutory definition of flexibility in applying the criteria to a rules. Under proposed rule 36.3(b)(3), particular contract and market. The ‘‘registered entity’’ to include, ‘‘with ECMs with SPDCs will be required to respect to a contract that the Commission is also mindful that: Commission determines is a significant [n]ot all the listed factors must be present 38 ECMs that have already filed a Notification of price discovery contract, any electronic Operation under section 2(h)(3) of the Act should to make a determination that a contract trading facility on which the contract is note that proposed rule 36.3(b) will not require executed or traded.’’ 37 Accordingly, the them to provide any additional information to the 40 Once in compliance with the core principles Commission believes that when it has Commission explaining how the facility meets the and daily reporting and publication requirements definition of trading facility or with information applicable to ECMs with SPDCs, ECMs will not be determined that a contract, agreement or demonstrating that the facility requires all required to comply with proposed rule 36.3(b)(2) participants to be ECEs as long as the operations of except in regard to non-SPDC contracts that are 36 Enhanced obligations for ECMs with SPDCs the facility and the participants trading on the traded or executed on the facility. apply only to the SPDCs and need not be applied facility have not materially changed since the filing 41 Section 2(h)(7)(B)(v) also authorizes the to ECM contracts, agreements or transactions that of the notification or the most recent ECM Annual Commission to specify by rule other material factors are not SPDCs. Certification form. relevant to a determination whether a contract is a 37 Public Law 110–246 at sec. 13203(b)(3). 39 See 17 CFR 36.3(b). SPDC.

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performs a significant price discovery when they enter into cash market determining whether ECM contracts are function. However, the Managers intend that transactions. Routine publication of an SPDCs. In proposed rule 36.3(c)(3) the the Commission should not make a ECM’s contract price in widely Commission establishes procedures determination that an agreement, contract or distributed industry publications and under which the Commission will make transaction performs a significant price discovery function on the basis of the price newsletters also would indicate that and announce its determination linkage factor unless the agreement, contract industry participants attach some value whether a particular contract performs a or transaction has sufficient volume to to this information. significant price discovery function and impact other regulated contracts or to become (ii) Notification requirement for ECMs also sets forth the actions that must be an independent price reference or benchmark with a SPDC. The Reauthorization Act taken by an ECM following such a that is regularly utilized by the public.42 requires that as part of its rulemaking to determination. With respect to the Because the criteria mandated by implement new section 2(h)(7) of the former, proposed rule 36.3(c)(3) Congress do not lend themselves to CEA, the Commission include the provides that when the Commission bright-line rules, the Commission standards, terms and conditions under intends to undertake such a proposes to explain, in Appendix A to which an ECM will have the determination in response to notice by the part 36 rules, how it expects to responsibility to notify the Commission an ECM pursuant to rule 36.3(c)(2), or apply the criteria in making its that an agreement, contract or upon its own initiative, it will notice its determinations. This proposed guidance transaction conducted in reliance on the intention in the Federal Register. The explains that the Commission will make exemption provided in section 2(h)(3) of proposed rule also specifies that the SPDC determinations on a case-by-case the CEA may perform a significant price Commission, as part of its basis, applying and weighing each factor discovery function.43 Accordingly, in consideration, will solicit written data, as appropriate to the specific contract proposed rule 36.3(c)(2) the views and arguments from the ECM that and circumstances under consideration; Commission has specified conditions, lists the potential SPDC and from any offers examples to illustrate which derived from the statutory criteria, other interested parties. Generally, such factor or combinations of factors the which signal the ECM’s obligation to written submissions must be received Commission would look to when notify the Commission of a possible within 30 calendar days of the date of evaluating whether a contract is SPDC. An ECM will be obligated to publication in the Federal Register. performing a significant price discovery notify the Commission of a potential After consideration of all relevant function; and describes the SPDC when an agreement, contract or matters the Commission will issue an circumstances under which the transaction is traded an average of 5 order explaining its determination. The presence of a factor or factors would be trades per day or more over the most issuance of an affirmative Commission sufficient to warrant such a recent calendar quarter and also meets order signals the effectiveness of the determination. one of the other two reporting factors. Commission’s authorities with respect By way of example, for contracts that The Commission is aware that this to ECMs with SPDCs 45 and triggers the are linked to other contracts or that may requirement may result in over- obligations, requirements—both be arbitraged with other contracts, the reporting by ECMs, and wishes to procedural and substantive—and Commission would determine that the emphasize that the presence of one timetables prescribed in proposed rule contract is a SPDC if the price of the factor alone will not necessarily result 36.3(c)(4) for the ECM.46 contract moves in such harmony with in a determination that a contract is a Under proposed rule 36.3(c)(4), an the other contract that the two markets SPDC. This notice requirement, ECM with a SPDC must submit to the essentially become interchangeable. however, will serve to alert the Commission a written demonstration This co-movement of prices would be Commission to the contracts that are that it complies with the nine core an indication that liquidity in the most likely to be SPDCs. The principles established in section 2(h)(7) contract has reached a level sufficient Commission believes that the benefit of of the CEA with respect to the SPDC. for the contract to perform a significant having the maximum available Although status as a registered entity price discovery function. Accordingly, information with which to make its attaches to an ECM as soon as the the proposed guidance establishes determinations outweighs the costs Commission issues its order threshold liquidity and price associated with possible over-reporting determining that a particular ECM relationship standards that will inform by ECMs. contract performs a significant price discovery function, the Commission has the Commission’s determination. A 3. Procedures different approach is required when included in proposed rule 36.3(c)(4) a considering the price discovery When the Commission learns of a grace period for achieving compliance potential of a contract that is serving as potential SPDC—whether through its with the core principles. As proposed, own information collection and the rule provides 90 calendar days for a material price reference. In these 44 circumstances, the Commission would surveillance activities, notification by ECMs with a first-time determination of rely on either of two sources of evidence an ECM pursuant to proposed rule a SPDC to demonstrate compliance with in making its determination. The 36.3(c)(2), or unsolicited information Commission believes that a direct from participants in the cash market 45 Those authorities include the emergency underlying a contract—the powers conferred by section 8a(9) of the Act, 7 indicator that a contract is serving as a Reauthorization Act directs the U.S.C. 12a(9), which permits the Commission to material price reference is observation intervene when it has reason to believe an Commission to implement a process for that cash market participants are emergency exists and to take action necessary to actively referencing the contract price maintain or restore orderly trading or liquidation of 43 Public Law 110–246 at sec. 13204. any futures contract. 44 The Reauthorization Act amended the CEA to 46 Should the Commission conclude, either 42 Conference Committee Report at 984–85. In require that the Commission review all ECM formally or informally, that a contract which addition to the four criteria established by Congress, contracts at least once a year to determine whether demonstrates some characteristics consistent with a section 2(h)(7) permits the Commission to consider any contract is a SPDC. In addition to these formal SPDC nonetheless does not serve a significant price such other material factors as it may specify by rule reviews, it is expected that Commission staff might discovery function, the Commission may continue as relevant to a determination whether an also become aware of the price discovery attributes to monitor the contract pursuant to its special call agreement, contract or transaction serves a of ECM contracts in the ordinary course of authority under proposed rule 36.3(b)(1)(iv), and significant price discovery function. 7 U.S.C. discussion or interaction with ECM personnel and will advise the ECM as to what further reporting it 2(h)(7)(B)(v). various cash and futures market participants. may require with respect to the contract.

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the core principles.47 For each rigor it applies to DCM applications. compliance with the ECM core subsequent SPDC, the ECM is given 15 Submissions that are incomplete or do principles will, where appropriate, calendar days from the date of the not adequately demonstrate compliance mirror those for DCMs. The Commission Commission’s order to achieve with each of the core principles may intends in the acceptable practices to compliance. The grace period is trigger Commission proceedings under provide non-exclusive safe harbors for designed to ensure that the ECM has section 5c(d) of the Act and may, compliance with the core principles by sufficient time to implement its new pursuant to section 5e or 6 of the Act, ECMs with SPDCs. As is the case with regulatory requirements and operations, result in the revocation of the ECM’s the core principles established for other while avoiding the market disruption right to operate in reliance on the registered entities, the guidance offered that might occur by the sudden exemption set forth in section 2(h)(3) of for ECMs is neither mandatory nor the imposition of position limits and other the Act with respect to a SPDC. only means of compliance with the core trading rules. The Commission is aware The Commission also proposes to principles. Consistent with its practice that position limits that become establish a process for vacating a SPDC of evaluating a DCM’s compliance with effective at the end of the applicable determination when the contract no the core principles during rule grace period may negatively impact longer meets the criteria specified in enforcement reviews, the Commission traders who in good faith acquired section 2(h)(7)(B). Under proposed will conduct regular rule enforcement positions that are above that limit. regulation 36.3(c)(6), the Commission reviews of ECMs with SPDCs to evaluate Requiring immediate compliance would may, on its own initiative or at the compliance with the nine core force such traders to liquidate positions request of an ECM with a SPDC, regulatory principles. in order to be at or below the limit. determine that a contract no longer The Guidance to Core Principle I of Accordingly, for the purpose of performs a significant price discovery section 2(h)(7)(C) of the Act requires the applying limits on speculative positions function and vacate its previous ECM to certify the terms and conditions in newly-determined SPDCs, the determination. Any subsequent of the SPDC within 90 calendar days of Commission proposes to permit a grace determination that the contract once an ECM’s initial SPDC, or 15 calendar period following the ECM’s again is a SPDC will be subject to the days if the ECM has previously traded implementation of position limits procedures proposed in regulation a SPDC. The acceptable practice for this applicable to SPDCs for traders with 36.3(c)(2). Proposed rule 36.3(c)(6) core principle provides that Guideline cleared positions in such contracts to further provides for the automatic No. 1 in Appendix A to the become compliant with applicable vacation of a significant price discovery Commission’s part 40 rules may be used position limit rules. Traders who hold contract determination when the SPDC as guidance to satisfy this provision. To cleared positions on a net basis in the has no open interest and no trading on ensure continued compliance with all electronic trading facility’s SPDC must the contract has occurred for a period of elements of the Commission’s statutory be at or below the specified position 12 complete calendar months. The and regulatory regimes for ECMs with limit no later than 90 calendar days Commission is proposing this provision SPDCs, the ECM is expected to monitor from the date on which the electronic in order to reduce the administrative the SPDC and its trading activity on a trading facility implements a position burden on staff and the compliance continuous basis. limit, unless a hedge exemption is burden on an ECM where lack of Core Principle II requires ECMs to granted by the electronic trading activity eliminates any possibility that a monitor trading in SPDCs to prevent facility. This grace period applies to contract performs a significant price market manipulation and participation both initial and subsequent SPDCs on discovery function for the underlying abuses. Its guidance and acceptable an ECM, and the ECM should promptly cash market. practices were derived from DCM Core notify traders when it has set position Principle 4 (Monitoring of Trading) and limits. This provision is outlined in the 4. Substantive Compliance With the Core Principles: Guidance and DCM Designation Criterion 2 proposed Guidance to Core Principle IV. 51 Acceptable Practices (Prevention of Market Manipulation). Rule 36.3(c)(4) requires that the The proposed guidance and acceptable ECM’s submission include specific Section 2(h)(7) of the CEA, as practices in Appendix B to part 36 make information designed to permit the amended, requires that an electronic clear that ECMs with SPDCs must Commission to evaluate whether the trading facility on which significant demonstrate the capacity to prevent ECM is indeed in compliance with the price discovery contracts are traded market manipulation and have rules core principles. Although there are comply with nine core regulatory deterring trading and participation obvious differences between them, this principles. Consistent with Congress’s abuses. Under the proposed guidance, procedure was modeled on the intent that status as a registered entity ECMs with SPDCs can demonstrate this procedure required of applicants to attach to an ECM following the capacity through either a dedicated become designated contract markets.48 Commission’s determination that a regulatory department or by delegation As with other aspects of this particular ECM contract serves a of that function to an appropriate third rulemaking, the Commission is striving significant price discovery function,49 party.52 In either case, the regulatory to make the procedures and these core principles have their origins requirements for ECMs with SPDCs as in their DCM counterparts in section 5 51 17 CFR 38, Appendices A and B to Part 38. close as possible to those for DCMs, and of the CEA and have been construed 52 As is the case for DCMs and DTEFs, ECMs with in this regard will review the adequacy similarly.50 The Commission proposes SPDCs may comply with any core principle through of submitted materials with the same to adopt Appendix B to the part 36 rules delegation of any relevant function to any registered futures association or another registered entity, but to provide general guidance and the ECM remains responsible for carrying out the 47 Conference Committee Report at 986. acceptable practices with respect to function. Section 5c(b) of the CEA, 7 U.S.C. 7a–2(b). 48 DCM applicants make submissions prior to compliance with the ECM core A detailed discussion of registered entities’ designation as a registered entity and prior to the principles; the acceptable practices for responsibilities and obligations with respect to listing of any contract, whereas the Commission delegated functions, as well as a discussion of the must review the same information for ECMs after distinctions between delegation of functions and they are deemed registered entities and after the 49 Conference Committee Report at 986. outsourcing, or contracting out specified core subject contract has established trading volume and 50 7 U.S.C. 7(d); Conference Committee Report at principle duties is found in the Commission’s final open interest. 985. rulemaking implementing provisions of the CFMA

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department or third party should have limit or accountability rules for traders settlement provision, the spot-month an acceptable trade monitoring program, in such significant price discovery speculative position limit should be set the authority to collect information and contracts. Speculative position limits at a level that minimizes the potential documents, and the ability to assess are necessary to reduce the potential for for price manipulation or distortion in participants’ market activity and power. market manipulation. The acceptable the SPDC itself; in related futures and Core Principle III addresses the ability practices for Core Principle IV were option contracts traded on a DCM or of an ECM with a SPDC to obtain derived largely from Core Principle 5 for DTEF; in other SPDCs; in other fungible information necessary to perform any of designated contract markets.56 agreements, contracts and transactions; the functions enumerated in section DCMs can list for trading futures and in the underlying commodity. 2(h)(7)(C) of the CEA (the core contracts on a wide range of The Commission notes that some principles), to provide that information commodities, including enumerated SPDCs may not be unique. In other to the Commission, and to have the agricultural products, excluded words, a SPDC may be economically capacity to carry out any required commodities (e.g., financial products equivalent to another SPDC or to a information sharing agreements. Core such as currencies), and exempt contract traded on a DCM or DTEF. Principle III’s guidance and acceptable commodities (e.g., metals, crude oil, Economic equivalence can arise due to practices have as their source the natural gas and electricity). Some of substantial similarity among contracts’ guidance and acceptable practices of these commodities have limited terms and conditions (e.g., two DCM Designation Criterion 8—Ability to deliverable supplies while others have physically-delivered contracts or two Obtain Information.53 Proposed deep and liquid cash markets. cash-settled contracts having the same Appendix B to part 36 makes clear that Depending on the variety of possible specifications). A SPDC also can be ECMs with SPDCs must have the contracts listed for trading, a DCM may economically equivalent to another authority to collect information and have a mix of position limit and SPDC or to a contract listed for trading documents on both a routine and non- accountability rules. Specifically, on a DCM or DTEF if it is cash settled routine basis; maintain and properly futures contracts based on commodities based on a daily settlement price or the store audit trail data; maintain records with limited deliverable supplies final settlement price of the referenced in a form and manner acceptable to the should have spot-month speculative contract. For economically-equivalent Commission; and have the capacity to position limits. In contrast, financial SPDCs, the electronic trading facility carry out appropriate information- products having deep and liquid cash should establish the same spot-month sharing agreements. In providing markets may be eligible for position speculative position limits as specified guidance on compliance with this accountability levels in lieu of position for the equivalent contract.59 requirement, the Commission also limits since the potential for market ECMs should establish non-spot proposes to incorporate the guidance manipulation is minimal. individual month position and acceptable practices provided for Unlike DCMs, ECMs relying on the accountability levels and all-months- DCM Core Principles 10 (Trade exemption in section 2(h)(3) of the CEA combined position accountability levels Information) and 17 (Recordkeeping).54 are permitted to offer for trading only for its SPDCs. Once a trader exceeds an The Commission believes that the contracts on exempt commodities. established position accountability acceptable practices outlined in Core Because the deliverable supplies of level, the ECM should initiate an Principle 10 should be made applicable exempt commodities typically are investigation to determine whether the to ECMs with SPDCs because the ability limited, the Commission believes that it individual’s trading activity is justified to record full data entry and trade will be necessary for SPDCs to have and is not intended to manipulate the details, as well as the safe storage of spot-month position limits. market. As part of its investigation, the audit trail data, is a necessary The acceptable practices for Core ECM should inquire about the trader’s component in assessing potential Principle IV make recommendations rationale for holding a net position in manipulation and conducting effective with respect to how ECMs should excess of the accountability levels. The market surveillance. DCM Core establish spot-month speculative ECM also can request that the trader not Principle 17 requires that DCMs position limits. For a unique SPDC,57 further increase contract positions. If a maintain required records in a form and the spot-month speculative position trader fails to comply with a request for manner acceptable to the Commission limit should be set in the same manner information, provides information that and establishes as guidance for outlined for contracts listed for trading does not sufficiently justify the position, acceptable recordkeeping the standards on DCMs. In this regard, for a or continues to increase contract prescribed in Commission regulation physically-delivered SPDC, the level of positions after a request not to do so is 1.31.55 To ensure that all information the spot-month limit should be based issued by the ECM, then the required by the Commission is upon an analysis of the deliverable accountability provisions should enable maintained in a uniform manner, the supply and the history of spot-month the ECM to order the trader to reduce Commission proposes in the acceptable liquidations. The spot-month limit for a the positions. If a SPDC is economically equivalent practices for Core Principle III to adopt physical-delivery market is to another SPDC or to a contract traded the acceptable practices for appropriately set at no more than 25 recordkeeping found in DCM Core percent of the estimated deliverable 58 available to short traders and salable by long traders Principle 17. supply. Where a SPDC has a cash at its market value in normal cash market channels. Core Principle IV requires electronic 59 Many DCMs have non-spot individual month trading facilities with significant price 56 17 CFR 38, Appendix B to Part 38. and all-months-combined position accountability discovery contracts to establish position 57 A unique SPDC is one that is not economically rules for their futures contracts. Moreover, some equivalent to another SPDC or to a contract traded DCMs establish non-spot individual month and all- on a DCM or DTEF. months-combined position limits in lieu of the relating to trading facilities (‘‘A New Regulatory 58 The Commission notes that deliverable supply position accountability levels. The Commission Framework’’), 66 FR 42256, 42266 (August 10, typically is less than total supply. In this regard, it believes that the implementation of such 2001). is common for some portion of the supply to be accountability provisions or position limits is a 53 17 CFR 38, Appendix B to Part 38. unavailable for delivery for a variety of reasons. good practice. Accordingly, the Commission 54 17 CFR 38, Appendix B to Part 38. Deliverable supply is the amount of the underlying proposes to adopt it as an acceptable practice for 55 17 CFR 1.31. commodity that reasonably can be expected to be ECMs.

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on a DCM or DTEF, then the ECM typically are not reported to the facility. platform—as well as vice versa—the should set the non-spot individual Thus, the ECM likely would find it Commission believes that it is month position accountability level and difficult to net uncleared transactions appropriate for position limit all-months-combined position and maintain records of traders’ requirements to be applied to overall accountability level at the same level as uncleared positions in a given SPDC. In positions regardless of where they those specified for the economically- order to account for this situation, the originated. equivalent contract. For a unique SPDC, Commission proposes for ECMs with With regard to compliance with a the ECM should adopt non-spot SPDCs a new measure of trading activity particular position limit or position individual month and all-months- called the volume accountability level. accountability rule, ECMs should combined position accountability levels For this measure, the ECM should keep aggregate on a net basis cleared that are no greater than 10 percent of the track of each trader’s uncleared transactions, including those that are average combined futures and delta- transactions in a SPDC on a net basis treated by a DCO (registered or adjusted option month-end open that are conducted on the facility. (For unregistered) as fungible with the SPDC. interest for the most recent calendar the purpose of netting uncleared Aggregate positions then will be year. transactions, long and short uncleared compared with the applicable position Position accountability levels are not transactions are only offset if they are limit and position accountability rules necessary for SPDCs that specify non- conducted with the same counterparty.) to determine compliance. Uncleared spot individual month position limits A volume accountability level is similar transactions also should be aggregated and all-months-combined position to a position accountability level in that by trader on a net basis in order to limits. If a SPDC is economically a trader may exceed the volume determine whether such trader’s volume equivalent to another contract, then the accountability level. However, if a of uncleared trades exceeds the spot- non-spot individual month position trader’s net volume of uncleared trades month volume accountability level. limit and all-months-combined position exceeds the volume accountability level, An ECM with SPDCs should use an limit should be set at the same levels the ECM should initiate an investigation automated means of detecting traders’ specified for the equivalent or to determine whether the trading violations of speculative limit rules and referenced contract. For unique SPDCs, activity is justified and is not intended exemptions. An automated system also the non-spot individual month and all- to manipulate the market. As part of its should be used to determine whether a months-combined position limits investigation, the ECM should inquire trader has exceeded applicable non-spot should be set in the same manner as for about the trader’s rationale for holding individual month accountability levels, position accountability levels, i.e., a net volume of uncleared trades in all-months-combined accountability levels that capture a material amount of excess of the volume accountability levels, and spot-month volume accountability levels. An electronic large positions that could threaten the level. The ECM also can request that the trading facility should establish a market. trader not further increase the volume of An ECM with a SPDC may require program for effective enforcement of uncleared trades. If a trader fails to that all transactions in that contract be position limits for SPDCs. Lastly, ECMs comply with a request for information cleared only through a DCO. should use a large trader reporting about the portfolio of uncleared trades, Alternatively, an ECM’s SPDC may not system to monitor and enforce daily provides information that does not be subject to any clearing requirement, compliance with position limit rules. sufficiently justify the uncleared in which case the contract would trade The Commission recognizes that some transactions conducted, or continues to on an uncleared basis. Lastly, an ECM traders with relatively large positions increase the volume of uncleared trades may permit a given SPDC to trade on may be adversely affected by newly after a request not to do so is issued by either a cleared or uncleared basis imposed position limits when a SPDC depending on the status of the the ECM, then the volume initially comes into compliance with the counterparties involved. The accountability provisions should enable core principles. To address this issue, amendments to the CEA give electronic the ECM to require the trader to reduce the Commission proposes, for the trading facilities reasonable discretion the volume of uncleared trades. purpose of applying limits on to take into account the differences Consistent with the specific directive speculative positions in newly- between cleared and uncleared of Core Principle IV, the Commission determined SPDCs, to permit a grace transactions when complying with Core expects ECMs to impose position limit period following issuance of its order Principle IV.60 For the purpose of and position accountability for traders with cleared positions in applying speculative limits to positions requirements on SPDCs as well as such contracts to become compliant in SPDCs, the ECM should apply positions in agreements, contracts and with applicable position limit rules. speculative position limits to cleared transactions that are fungible and Traders who hold cleared positions on positions only. cleared together with any SPDC. This a net basis in the ECMs SPDC must be Uncleared transactions in SPDCs circumstance typically occurs where an at or below the specified position limit potentially play an important role in ECM lists a particular contract on its level no later than 90 calendar days risk management strategies and price multilateral trading platform and the from the date of the ECM’s formation. As a result, the Commission resultant positions are cleared by a implementation of position limit rules, believes that an ECM should monitor DCO. Separately, the ECM also provides unless a hedge exemption is granted by not only trading in cleared transactions a non-multilateral trading platform the ECM. but also trading with respect to capability for the trading of the same Core Principle V requires the ECM to uncleared transactions. However, the contract and the resultant positions are adopt rules to provide for the exercise Commission is cognizant of the fact that cleared at the same clearing of emergency authority. The proposed uncleared trades conducted on the ECM organization together with positions guidance contained in Appendix B to may be offset by trades done off the established on the multilateral platform. part 36 is substantially similar to the facility. Such offsetting transactions Given the fact that such arrangements guidance for DCM Core Principle 6.61 consummated outside of an ECM allow market participants to put on However, the Commission added a positions on the multilateral platform 60 Public Law 110–246 at sec. 13201. and take them off away from the 61 17 CFR 38, Appendix B to Part 38.

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reference in the proposed guidance for emphasizes that the four provisions in 5. Annual Commission Review Core Principle V to acknowledge that the acceptable practices for DCM Core In accordance with section 2(h)(7) of calls for additional margin apply only to Principle 15 are a clear articulation of the CEA, proposed regulation 36.3(d) contracts that are cleared through a acceptable methods for managing provides that the Commission will clearinghouse, since not all contracts conflicts of interest in decision-making. review at least annually agreements, traded on electronic trading facilities are Accordingly, the Commission contracts and transactions traded on cleared. encourages ECMs with SPDCs to consult ECMs to determine whether they serve Core Principle VI requires that an the DCM Core Principle 15 acceptable a significant price discovery function. ECM with a SPDC make public daily practices for additional guidance as to The Commission proposes to limit these information on price, trading volume, the spirit of Core Principle VIII. annual reviews to those contracts that and other trading data. The Commission have an average daily volume of five or believes this information should include The Commission recognizes that an more trades or that have been brought settlement prices, price range, volume, electronic trading facility may become to the attention of the Commission, open interest, and other related market subject to compliance with Core through the notification procedures of information, and has proposed in the Principle VIII by virtue of a single proposed regulation 36.3(c)(2) or acceptable practices that compliance contract representing a small portion of otherwise, as possible SPDCs. The with Commission regulation 16.01,62 the facility’s operations. Thus, the which the Commission proposes to ECM’s conflicts may be contract-specific Commission believes this approach is consistent with Congress’ intent as make mandatory for ECMs with SPDCs, and not require the all-encompassing reflected in the Conference Committee would constitute an acceptable practice safe harbor offered for the benefit of Report: under Core Principle VI. DCMs in Core Principle 15.65 The Core Principle VII requires the ECM to Commission also recognizes that it may The Managers do not intend that the monitor and enforce compliance with not be practicable for an ECM to Commission conduct an exhaustive annual the rules of its market. The proposed examination of every contract traded on an implement the full panoply of the Core electronic trading facility pursuant to the guidance and acceptable practices Principle 15 acceptable practices. The provided in Appendix B to part 36 are section 2(h)(3) exemption, but instead to ECM must nonetheless ensure that concentrate on those contracts that are most roughly parallel to the guidance and appropriate measures are in place to likely to meet the criteria for performing a acceptable practices prescribed for DCM 68 guard against conflicts of interest in significant price discovery function. Core Principle 2.63 The Commission decision-making. An electronic trading notes that ECMs on which SPDCs are B. Market, Transaction and Large facility should carefully consider its traded are non-intermediated markets, Trader Reporting Rules method of compliance, including and for this reason guidance relating to The Commission’s market and large a DCM’s authority to examine the books whether additional measures may be trader reporting rules (‘‘reporting rules’’) and records of intermediaries has not required as the number or importance of are contained in parts 15 through 21 of been included in the proposed guidance its SPDCs increases. The Commission the Commission’s regulations.69 for Core Principle VII. reserves the right to issue additional Collectively, the reporting rules Core Principle VIII requires the guidance or specific acceptable effectuate the Commission’s market and electronic trading facility to establish practices for Core Principle VIII as financial surveillance programs.70 The and enforce rules to minimize conflicts circumstances warrant. market surveillance programs analyze of interest in its decision-making Core Principle IX requires ECMs with market data to detect and prevent processes. The Commission notes that SPDCs to avoid adopting rules or taking market manipulation and disruptions an ECM may face conflicts between its actions that result in unreasonable and to enforce speculative position self-regulatory responsibilities and its restraints of trade or impose a material limits. The financial surveillance commercial interests similar to those anticompetitive burden on trading. The programs use market data to measure encountered by a DCM. For this reason Commission is required by section 15(b) the financial risks that large contract the Commission proposes to insert of its statute to take into consideration positions may pose to Commission certain general elements of the the public interest to be protected by the registrants and clearing organizations. acceptable practices for DCM Core antitrust laws and to take the least The Commission’s reporting rules can 64 Principle 15 —specifically, those anticompetitive means of achieving the be applied to SPDCs traded on ECMs descriptive elements that provide objectives, policies and purposes of the pursuant to the authority of sections 4a, greater clarity and context to particular 71 CEA.66 Consistent with the 4c(b), 4g and 4i of the CEA. The conflicts—into paragraph (a)(2) of the Commission’s approach to antitrust amendments introduced to the CEA by guidance section for ECM Core Principle the Reauthorization Act, both by considerations with respect to DCMs,67 VIII. defining ECMs with SPDCs as registered it is the Commission’s intent to be The acceptable practices for DCM entities with respect to those contracts guided by section 15(b) of the Act in its Core Principle 15 include four specific and by making certain provisions of the provisions that must be met to receive consideration of any issues arising the benefit of the safe harbor. These under this core principle. 68 Conference Committee Report at 985. provisions address: (1) Board 69 17 CFR parts 15 to 21. Composition; (2) Definition of Public 65 The Commission recognizes that, pursuant to 70 See 69 FR 76392 (Dec. 21, 2004). Director; (3) Regulatory Oversight the Reauthorization Act, compliance with the core 71 The Reauthorization Act amended section regulatory principles is limited to ECMs with 2(h)(4)(B) of the Act to subject SPDCs requiring Committee; and (4) Disciplinary Panels. SPDCs. However, the Commission also recognizes large trader reporting to the provisions of section Although the Commission did not that all ECMs, not just ECMs with SPDCs, may face 4c(b) of the Act. In addition, section 2(h)(4)(D) of propose any acceptable practices for potential conflicts of interest in their decision- the Act provides that transactions executed on Core Principle VIII, the Commission making processes. Therefore, all ECMs may want to ECMs shall be subject to ‘‘such rules, regulations, consider implementing appropriate measures to and orders as the Commission may issue to ensure minimize conflicts of interests. timely compliance with any of the provisions of 62 17 CFR 16.01. 66 7 U.S.C. 19. this Act applicable to a significant price discovery 63 17 CFR 38, Appendix B to part 38. 67 17 CFR 38, Appendix B to part 38, Guidance contract traded on or executed on any electronic 64 Id. for Core Principle 18. trading facility * * *.’’ 7 U.S.C. 2(h)(4)(D).

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Act directly applicable to SPDCs, give file position reports with the the purpose of accepting service or the Commission the authority to Commission for large SPDC positions delivery of any communication, establish a comprehensive transaction held in accounts carried by such brokers including special calls, issued by the and position reporting system for when customer positions exceed the Commission to a foreign clearing SPDCs. Specifically, section 4a of the contract reporting levels of Commission member or foreign trader.80 CEA permits the Commission to set, regulation 15.03(b). In addition, the The Commission is also proposing approve exchange-set, and enforce proposed regulations would require speculative position limits.72 Section clearing members to identify the owners new regulation 16.02 to require all 4c(b) of the Act,73 which gives the of reportable SPDC positions on Form reporting markets—a definition that Commission plenary authority to 102 (Identification of Special currently includes DCMs and DTEFs establish the rules pursuant to which Accounts).77 (unless the Commission determines the terms and conditions on which Under the proposed regulations, otherwise) and, as proposed, will commodity options transactions may be SPDC traders likewise would be subject include ECMs listing SPDCs with conducted, provides the basis for the to the special call provisions of part 18 respect to such contracts—to report on Commission’s authority to establish a of the Commission’s regulations for a daily basis trade data and related order large trader reporting system for reportable positions. Moreover, clearing information for each transaction that is transactions on ECMs that involve members for SPDCs, SPDC traders, and executed on the market. Such reports commodity options. Section 4g of the ECMs listing SPDCs each would be would include time and sales data, Act, as amended, imposes reporting and subject to the special call provisions of reference files and such other recordkeeping obligations on registered part 21 of the Commission’s regulations, information as the Commission or its persons and requires them to file such which establish the Commission’s designee may require and, upon request, reports as the Commission may require ability to request information on would be accompanied by data that on proprietary and customer positions persons that exercise trading control identifies or facilitates the identification over commodity futures and options executed on any board of trade and in of each trader for each transaction or accounts along with additional account- any SPDC traded or executed on an order included in a submitted report. electronic trading facility.74 Finally, related information for positions that may or may not be reportable under For some time, DCMs have consistently section 4i of the Act requires the filing provided transaction level data to the of such reports as the Commission may Commission regulation 15.03(b).78 In order to effectively communicate Commission pursuant to rule 38.5(a), require when positions made or under which they must file trade data obtained on DCMs, DTEFs or ECMs with with foreign clearing members and upon request by the Commission.81 respect to SPDCs equal or exceed foreign traders and to properly Recent acquisitions of technology have Commission-set levels.75 administer the proposed special call In addition to proposing technical and provisions of parts 17, 18 and 21 of the enabled the Commission more conforming amendments to parts 15 Commission’s regulations, the effectively to integrate trade data and through 21 of its regulations, the Commission is also proposing to amend related order information into its trade Commission seeks, through the the designation of agent provisions of practice, market and financial proposed regulations, to extend to Commission regulation 15.05. This rule surveillance programs. Accordingly, the SPDCs the reporting rules that currently relates to the appointment of an agent Commission proposes in new regulation apply to DCMs and DTEFs by defining for service of process for foreign 16.02 to make the submission of trade clearing member and clearing persons; it is self-effectuating and is data and related order information organization and amending the designed to permit the Commission to mandatory. communicate expeditiously with foreign definition of reporting market in In this regard, and specifically with Commission regulation 15.00 to apply to individuals and entities that trade on domestic commodity exchanges.79 respect to SPDCs, the Commission notes positions in, and the trading and that the proposed amendments to part clearing of, SPDCs executed on ECMs. Similar to requirements that currently apply to DCMs and DTEFs, the 17 of the Commission’s regulations do Under the proposed rules, ECMs would not apply to SPDC transactions that are provide clearing member reports for proposed amendments to regulation 15.05 would require ECMs that list not cleared for the simple reason that no SPDCs to the Commission pursuant to SPDCs to act as the agent of foreign clearing members are involved in Commission regulation 16.00. As with clearing members and foreign traders for DCMs, proposed rule 16.01 would clearing such transactions. For purposes require ECMs to submit to the of enforcing SPDC position limits and 77 The Commission’s Division of Market monitoring large SPDC positions, the Commission and publicly disseminate Oversight increasingly has been charged with option deltas and aggregated trading administering the procedural requirements of the Commission would use proposed data on a daily basis.76 ECM clearing reporting rules. Accordingly, the Commission is regulation 16.02 to access transaction members that clear SPDCs, regardless of proposing to shift any delegation of the information and trader identifications to Commission’s authority to determine the format of enforce position limits and monitor their registration status with the reports and the manner of reporting under parts 15 Commission or their status as domestic through 21 of the Commission’s regulations from large positions for market and financial or foreign persons, would be required to the Executive Director to the Director of the surveillance purposes. Division of Market Oversight. 78 17 CFR 15.03(b). The proposed rules also seek 72 7 U.S.C. 6a. to amend paragraphs (i)(1) and (i)(2) of Commission 73 7 U.S.C. 6c(b). regulation 21.01 to ensure that any special call to 80 In order to ensure that the Commission can 74 7 U.S.C. 6g. an intermediary for information that classifies a expeditiously communicate with all foreign 75 7 U.S.C. 6i. trader as a commercial or noncommercial trader, individuals and entities that may effect transactions 76 and the positions of the trader as speculative, Currently, the public dissemination in ECM SPDCs, the Commission is proposing to requirement of Commission regulation 16.01(e) spread positions, or positions held to hedge define the term foreign clearing member in applies only to DCMs. The proposed rules would commercial risks, can be made with respect to both uniformly apply the public dissemination commodity futures and commodity options proposed regulation 15.00(g), and to use that term requirement of Commission regulation 16.01(e) to contracts. 17 CFR 21.02(i). along with the term foreign trader as defined in actively traded DCM contracts and SPDCs executed 79 For background on the adoption of the rule, see regulation 15.00(h), in proposed regulation 15.05(i). on DTEFs and ECMs. 17 CFR 16.01(e). 45 FR 30426 (May 8, 1980). 81 17 CFR 38.5(a).

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C. Other Regulatory Provisions ECMs—including ECMs with SPDCs reduced in part by the substantial and ECM market participants—as overlap between the persons that are 1. Part 40—Provisions Common to mandated by Reauthorization Act. As a currently subject to the reporting rules, Registered Entities result, in certain cases, it may be more and the persons that would be subject ECMs with SPDCs are integrated into appropriate to attribute the compliance to the reporting rules pursuant to the the definition of ‘‘registered entity’’ in costs imposed by the proposed Commission’s proposed regulations. For section 1a(29) of the CEA, as amended. regulations to requirements that directly example, there is substantial overlap Part 40 of the Commission’s regulations arise from the provisions of the between traders of the natural gas applies to registered entities, and Reauthorization Act. contract on ICE OTC and traders of the therefore, ECMs with SPDCs. Proposed Under the proposed rules, all DCMs, same contract on NYMEX. With respect part 40 is being amended to specify DTEFs (unless the Commission to clearing members of ICE OTC, for which provisions would be, or would determines otherwise) and ECMs with example, such persons are often clearing not be, applicable to all registered SPDCs would be required to provide members or affiliates of clearing entities. In particular, rules 40.1, 40.2 daily transaction and related data members of NYMEX. and 40.5–40.8 and Appendix D apply to reports to the Commission under The benefits of extending the market ECMs with SPDCs. Although not all proposed rule 16.02. The costs and reporting rules to SPDCs are provisions of part 40 will be applicable associated with the daily transaction substantial. As an initial matter, it is to ECMs with SPDCs,82 interested and related data reporting requirements important to note that a significant focus parties are strongly encouraged to of proposed regulation 16.02, however, of the Reauthorization Act concerned review all of part 40 because even those may be ameliorated by the fact that amending the CEA with the specific sections that are not being amended in DCMs have been voluntarily providing intent of giving the Commission the this rulemaking may be de facto transactional data to the Commission on authority to extend the market and amended by virtue of the fact that the a daily basis since the mid-1980s. The position reporting rules to SPDC term ‘‘registered entity’’ now includes Commission estimates that DCMs would markets and market participants. To the ECMs with SPDCs. account for the substantial majority of extent that contracts listed on ECMs the markets that would likely be serve a significant price discovery III. Related Matters required to file such reports pursuant to function, the regulatory value of A. Cost Benefit Analysis proposed rule 16.02. enhanced oversight, through the The proposed regulations would application of the market and position Section 15(a) of the Act requires the extend the market and position reporting rules to such contracts, is Commission to consider the costs and reporting requirements of parts 15 to 21 elevated. The Commission analyzes the benefits of its actions before issuing new of the Commission’s regulations to information funneled to it by the regulations under the Act. Section 15(a) ECMs with SPDCs with respect to such requirements of the market and position does not require the Commission to contracts. The requirements of the reporting rules to conduct market and quantify the costs and benefits of new proposed regulations are substantial, financial surveillance. Without such regulations or to determine whether the would involve the submission of daily information, the ability of the benefits of adopted regulations reports, and would impose burdens on Commission to discharge its regulatory outweigh their costs. Rather, section market participants that clear and trade responsibilities, including the 15(a) requires the Commission to SPDCs. More specifically, the proposed responsibilities of preventing market consider the cost and benefits of the rules would require ECMs with SPDCs manipulations and contract price subject regulations. Section 15(a) further with respect to such contracts to distortions and ensuring the financial specifies that the costs and benefits of provide clearing member reports for integrity of the listed derivatives the regulations shall be evaluated in SPDCs to the Commission pursuant to marketplace, would be compromised. light of five broad areas of market and Commission regulation 16.00. Proposed The bulk of the costs that would be public concern: (1) Protection of market rule 16.01 would require ECMs to imposed by the requirements of participants and the public; (2) submit to the Commission and publicly proposed regulation 36.3 relate to efficiency, competitiveness, and disseminate option deltas and significant and increased submission of financial integrity of the market for aggregated trading data on a daily basis. information requirements. For example, listed derivatives; (3) price discovery; Pursuant to proposed rule 17.00 ECM under proposed regulation 36.3(b)(1), all (4) sound risk management practices; clearing members that clear SPDCs ECMs would be required to file certain and (5) other public interest would be required to file position basic information including contract considerations. The Commission may, reports with the Commission for large terms and conditions with, and make in its discretion, give greater weight to SPDC positions held in accounts carried certain demonstrations related to any one of the five enumerated areas of by such brokers when customer compliance with the terms of the concern and may, in its discretion, positions exceed contract reporting section 2(h)(3) exemption to, the determine that, notwithstanding its levels and would be required to identify Commission. Proposed regulation costs, a particular regulation is the owners of reportable SPDC positions 36.3(b)(2) would require ECMs to necessary or appropriate to protect the on Form 102 under proposed rule 17.01. submit transactional information on a public interest or to effectuate any of the SPDC traders likewise would be subject weekly basis to the Commission for provisions or to accomplish any of the to the special call provisions of part 18 certain traded contracts that are not purposes of the Act. of the Commission’s regulations for SPDCs and would not be subject to the The proposed regulations implement reportable positions, and clearing terms of proposed rule 16.02. Proposed the Reauthorization Act by establishing members for SPDCs, SPDC traders, and regulation 36.3(c)(4) would impose a an enhanced level of oversight of ECMs listing SPDCs each would be substantial cost on ECMs with SPDCs in subject to the special call provisions of terms of providing information to the 82 Regulation 40.3 will not apply to ECMs with part 21 of the Commission’s regulations. Commission. SPDCs because it addresses Commission approval of products. Regulation 40.4 applies solely to The costs associated with the In enacting the Reauthorization Act, agricultural products, which cannot be traded on requirements of the market and position Congress directed the Commission to ECMs. reporting rules, should, however, be take an active role in determining

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whether contracts listed by ECMs could (PRA).84 The Commission therefore is would separately disclose the business qualify as SPDCs. Accordingly, the submitting this proposal to the Office of transactions or market positions of any enhanced informational requirements Management and Budget (OMB) for person and trade secrets or names of that would be imposed on ECMs with review in accordance with 44 U.S.C. customers.’’ 87 respect to contracts that have not been 3507(d) and 5 CFR 1320.11. The title for Finally, proposed regulation 16.02 identified as SPDCs have been proposed this collection of information is would result in a new collection of by the Commission in order to acquire ‘‘Regulation 36.3—Exempt Commercial information requirement within the the information that it requires to Market Submission Requirements’’ meaning of the PRA. The Commission is discharge this newly mandated (OMB control number 3038–NEW). If therefore submitting the proposal for responsibility. In addition, the adopted, responses to this collection of regulation 16.02 to OMB for review. The substantial information submission and information would be mandatory. The title for the collection of information demonstration requirements that would Commission will protect proprietary requirement is ‘‘Regulation 16.02—Daily be imposed on ECMs with SPDCs have information according to the Freedom of Trade and Supporting Data Reports’’ been proposed because ECMs with Information Act and 17 CFR part 145, (OMB control number 3038–NEW). If SPDCs, by statute, acquire certain of the ‘‘Commission Records and adopted, this collection would be self-regulatory responsibilities of DCMs. Information.’’ In addition, section mandatory. The Commission will The submission requirements associated 8(a)(1) of the Act strictly prohibits the protect proprietary information with proposed regulation 36.3(c)(4) are Commission, unless specifically according to the Freedom of Information tailored to enable the Commission to authorized by the Act, from making Act and 17 CFR part 145, ‘‘Commission ensure that ECMs with SPDCs, as public ‘‘data and information that Records and Information.’’ In addition, entities with the elevated status of a would separately disclose the business section 8(a)(1) of the Act strictly registered entity under the Act, are in transactions or market positions of any prohibits the Commission, unless compliance with the statutory terms of person and trade secrets or names of specifically authorized by the Act, from the core principles of section 2(h)(7)(C) customers.’’ 85 making public ‘‘data and information of the Act. As with the market and The requirements of Commission that would separately disclose the position reporting rules, the primary regulation 36.3 are currently covered by business transactions or market benefit to the public of proposed OMB control number 3038–0054 which positions of any person and trade regulation 36.3 is that its requirements applies to both EBOTs and ECMs. As a secrets or names of customers.’’ 88 give the Commission the ability to result of the Reauthorization Act, An agency may not conduct or discharge its statutorily mandated EBOTs and ECMs have to comply with sponsor, and a person is not required to responsibility for monitoring for the additional divergent regulatory respond to, a collection of information presence of SPDCs and extending its requirements. Accordingly, the unless it displays a currently valid oversight to the trading of SPDCs. Commission is seeking a new and control number. OMB has not yet separate control number for ECMs assigned control numbers to the new B. The Regulatory Flexibility Act operating in compliance with the collections for proposed regulations requirements of regulation 36.3. Upon The Regulatory Flexibility Act (RFA), 36.3 and 16.02. The approved collection OMB’s approval and assignment of a 5 U.S.C. 601 et seq., requires that of information requirements associated separate control number specifically for agencies consider the impact of their with parts 15 to 21, which would be the collection of information regulations on small businesses. The revised by the proposed rules and rule requirements of proposed regulation requirements related to the proposed amendments, display control numbers 36.3, the Commission intends to submit amendments fall mainly on registered 3038–0009 and 3038–0012. the necessary documentation to OMB to entities, exchanges, futures commission enable it to apply OMB control number 1. Proposed Regulation 36.3 merchants, clearing members, foreign 3038–0054 exclusively to EBOTs. A. Regulation 36.3(a) brokers, and large traders. The In addition, the Commission is Commission has previously determined proposing amendments to parts 15 to 21 Regulation 36.3(a) requires that ECMs that exchanges, futures commission of the Commission’s regulations, which notify the Commission of the intent to merchants and large traders are not amend two existing collections of operate as an ECM in reliance of section ‘‘small entities’’ for the purposes of the 2(h)(3) of the Act and further provide 83 information titled ‘‘Large Trader RFA. Similarly, clearing members, Reports’’ (OMB control number 3038– the information and certifications foreign brokers and traders would be 0009) and ‘‘Futures Volume, Open required by section 2(h)(5)(A) of the Act. subject to the proposed regulations only Interest, Price, Deliveries, and Section 2(h)(5)(A) of the Act requires an if carrying or holding large positions. Exchanges of Futures’’ (OMB control ECM to provide the name and address Accordingly, the Acting Chairman, on number 3038–0012). Responses to this of the person who is authorized on behalf of the Commission, hereby collections of information would be behalf of the ECM to receive certifies, pursuant to 5 U.S.C. 605(b), mandatory. Where appropriate, the communications from the Commission, that the actions proposed to be taken Commission will protect proprietary the commodity categories that the ECM herein will not have a significant information pursuant to the Freedom of intends to offer, and certifications that economic impact on a substantial Information Act 86 and 17 CFR part 145, certain owners and principals of the number of small entities. ‘‘Commission Records and ECM are not bad actors, that the facility C. Paperwork Reduction Act Information.’’ In addition, section will comply with the requirements of 8(a)(1) of the Act prohibits the the ECM exemption, and that the facility Certain provisions of proposed Commission, unless specifically will update its filings under section Commission regulation 36.3 would authorized by the Act, from making 2(h)(5)(A) to account for material result in new collection of information public ‘‘data and information that changes in the information submitted to requirements within the meaning of the the Commission. Paperwork Reduction Act of 1995 84 44 U.S.C. 3501–3520. 85 7 U.S.C. 12(a)(1). 87 Id. 83 47 FR 18618 (April 30, 1982). 86 5 U.S.C. 552 et seq. 88 Id.

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The substantive requirements of contracts that are not SPDCs, identify normal course of operation. Commission regulation 36.3(a) repeat the contracts which average 5 or more staff is unable to estimate the hourly requirements that are imposed by the trades per day over a calendar quarter, burden associated with the routine Act as a condition of operating pursuant and for such contracts, compile daily transmittal of such reports to the to the ECM exemption. The reporting or transaction-based reports that include Commission. However, Commission recordkeeping burden associated with the date of execution, the time of staff would presume that such Commission regulation 36.3(a) involves execution, the price of execution, the transmittal requirements should not the compilation and submission of the quantity executed, the total daily result in any materially measurable required information to the trading volume, the total open interest, burden on ECMs. Commission. Commission staff option type, option strike prices for each estimates that each ECM would expend qualifying contract, and such other Lastly, proposed regulation 36.3(b)(2) approximately 4 hours of professional information as may be requested by the addresses the Commission’s authority to time annually to maintain, verify, and Commission. Proposed regulation require the submission of data upon update the notification and required 36.3(b)(2) would require the submission special call under section 2(h)(5)(B)(iii) certifications. Commission staff of the reports on a weekly basis. Such of the Act. Pursuant to that section of estimates that 20 ECMs will be subject data is generated by ECMs in the normal the Act, the Commission has the to the requirement resulting in an course of operation. The Commission authority to issue special calls in order aggregate burden of 80 hours annually. staff estimates that ECMs would submit to enforce certain provisions of the Act weekly reports for a total of 40 contracts including the anti-fraud and anti- B. Regulation 36.3(b)(1) annually (2,080 reports). Commission manipulation provisions. In addition, Under proposed regulation 36.3(b)(1), staff estimates that ECMs would expend the Commission is authorized to issue each ECM would be required to provide approximately 20 minutes of special calls to ECMs to facilitate its contract descriptions and terms and professional time to compile and determination as to whether certain conditions, the market’s trading transmit each weekly report to the contracts are SPDCs, to evaluate a conventions, and the market’s trading Commission resulting in an annual systemic market event, or to obtain protocols to the Commission. Each ECM burden of approximately 693 hours. information requested by another would be required to describe how it Proposed regulation 36.3(b)(2) would Federal financial regulator. Commission meets the statutory definition of a give an ECM the flexibility to choose to staff estimates that a total of 15 special trading facility and demonstrate that it submit weekly transaction-based reports calls would be issued to ECMs annually requires each participant to comply or, in the alternative, give the under section 2(h)(5)(B)(iii) of the Act. with all applicable laws; complies with Commission electronic access to its Each ECM that has been issued a special the initial statutory requirements for the trading facility to enable the ECM exemption under section 2(h)(3) of Commission to create the weekly call would expend approximately 5 the Act; and directs a program to reports. Should an ECM select this hours of professional time to respond to monitor market participants for option, Commission staff believes that the call resulting in a burden of 75 compliance with the transactional such access would not result in any hours annually. requirements of the ECM exemption. estimable burden on an ECM. D. Proposed Regulation 36.3(c)(2) Proposed regulation 36.3(b)(1) would Proposed regulation 36.3(b)(2) also further require that each ECM provide, would require that ECMs, with respect Proposed regulation 36.3(c)(2) upon the Commission’s request, to contracts that are not SPDCs, to establishes for ECMs certain information that the Commission would identify contracts which average 1 or requirements for notifying the deem helpful to its determination as to more trades per day over a calendar Commission of possible SPDCs that may whether a particular contract is a SPDC. quarter, and for such contracts, to be listed by the ECM. Specifically, an Lastly, each ECM would be required to provide to the Commission on a ECM’s obligation to notify the annually indicate on Form 205 whether quarterly basis, the terms and Commission would apply to contracts it continues to operate under the ECM conditions of such contracts, the average that average 5 trades or more per day exemption and certify the accuracy of daily trading volume, and the most over the most recent calendar quarter, the information contained in its recent level of open interest. As with and may be triggered by either the Notification of Operation submitted weekly reports, such data is generated ECM’s sale of contract price data or by by ECMs in the normal course of pursuant to section 2(h)(5)(A) of the Act a contract’s daily settlement price being operation. The Commission staff and regulation 36.3(a). within 2.5 percent of the Based on the number of contract estimates that ECMs would submit contemporaneously determined closing, submissions made by DCMs, the quarterly reports for a total of 90 settlement or daily price of another Commission estimates that ECMs contracts annually (360 total reports). contract 95 percent or more of the days collectively would list for trading 250 Commission staff estimates that ECMs in the most recent quarter. Such commodity futures and options would expend approximately 20 contracts annually. Commission staff minutes of professional time to compile notifications would be accompanied by estimates that compliance with the and transmit each quarterly report supporting details. Commission staff above requirements and the resulting in an annual burden of 120 estimates that cost of monitoring for the transmission of descriptions and terms hours. triggering conditions is nominal. and conditions for such products would Furthermore, proposed regulation Commission staff estimates that take approximately 2 hours of 36.3(b)(2) would require ECMs to collectively 10 contracts would be the professional time to prepare per contract maintain an inventory of all fraud or subject of the notification requirement resulting in a collective burden of 500 manipulation based complaints and annually. Each ECM with a qualifying hours annually for all ECMs. submit a copy of such complaints to the contract would expend approximately 1 Commission within 3 or 30 days, hour of professional time to compile C. Regulation 36.3(b)(2) depending on the specific facts of the and transmit such data to the Proposed regulation 36.3(b)(2) would complaints. ECMs should record and Commission at an aggregate annual require that ECMs, with respect to retain an inventory of complaints in the burden of 10 hours.

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E. Proposed Regulation 36.6(c)(4) Commission staff anticipates issuing 2 supporting data report transmitted to An ECM with a SPDC, with respect to requests annually resulting in an the Commission resulting in an such a contract, has substantial aggregate burden of 40 hours. aggregate burden of 1,875 hours annually (assuming that such reports are regulatory responsibilities including the 2. Proposed Regulation 16.02 provided for each of 250 trading days). obligation to comply with the core Under proposed regulation 16.02, principles of section 2(h)(7)(C) of the reporting markets, a term which as 3. Market and Large Trader Reporting Act and to certify the compliance of proposed would include ECMs with Rules SPDC contract terms and conditions and SPDCs with respect to SPDCs, in In order to implement the CEA as exchange rules with the core principles, addition to DCMs and DTEFs (unless amended by the Reauthorization Act, other applicable provisions of the Act, determined otherwise by the the Commission through this and Commission regulations Commission), would be required to rulemaking proposes to extend the thereunder. To enable the Commission provide trade and supporting data market and large trader reporting to evaluate an ECM’s compliance with reports to the Commission on a daily requirements that currently apply to the statutory and regulatory provisions basis. Such reports would include DCMs and DTEFs to ECMs with SPDCs applicable to SPDCs and ECMs listing transaction-level trade data and related with respect to such contracts. SPDCs, Commission regulation order information for each transaction A. Futures Volume, Open Interest, Price, 36.3(c)(4) would require ECMs with executed on the reporting market and Deliveries, and Exchanges of Futures SPDCs to submit a substantial amount of would be accompanied by data that (OMB control number 3038–0012) information and documentation to the identifies traders for each transaction Commission including the market’s when reporting markets maintain such Twelve exchanges currently submit rules, a description of financial data. aggregated market data to the standards for members or participants, a Since the mid-1980s, all DCMs have Commission and are required to description of the market’s trading voluntarily provided the Commission publicly disseminate for each of algorithm, legal status documents, and a with transaction level data on a daily approximately 250 trading days per year description of the governance structure basis. Proposed regulation 16.02 seeks under Commission regulation 16.01. of the market. As proposed, such to formalize and codify the submission The information includes aggregate information collectively would be filed process. Commission staff estimates that figures on a per contract basis on total only once upon the market’s listing of each reporting market would expend 18 gross open contracts, open futures a SPDC. However, subsequent exchange hours for onsite visits to the contracts against which delivery notices rule changes, as with initial SPDC Commission, discussions with staff to have been stopped, volume generated contract terms and conditions and introduce the order flow process, and from the exchange of futures, delta amendments thereto, would be required meetings with staff for follow-up factors as well as certain pricing data. to be certified on an ongoing basis. discussions. The proposed rules would Should the proposed amendments be Commission staff estimates that up to require that reporting markets expend adopted, it is estimated that up to 15 three new ECMs could list at least one approximately 2325 hours in additional reporting markets, including ECMs with SPDC during the next five years. start-up costs to establish the required SPDCs with respect to such contracts, Commission staff estimates that each information technology infrastructure. could be required to submit this data to new ECM listing its initial SPDC would Commission staff estimates that it the Commission on a continuing basis. expend approximately 200 hours of would receive daily trade and Commission staff estimates that such professional time providing the supporting data reports from up to15 markets would expend approximately information and documentation reporting markets annually. Accordingly 30 minutes per day to generate the required under regulation 36.3(c)(4) for the start-up burden in terms of hours required data files, transmit that file to an aggregate burden of 600 hours. would in the aggregate be 35,145 hours. Commission offices, and publish the Assuming that such trading facilities Annualized over a useful life of ten required information. This would will operate for ten years, the aggregated years, the aggregated annual burden results in an annual burden of annualized cost, in terms of burden hours would be 3,514. approximately 1,875 hours. hours, would be 60 hours. Additionally, It is also estimated that start-up and B. Large Trader Reports (OMB Control Commission staff estimates that the continuing costs may involve product Number 3038–0009) Commission would receive and service purchases. Commission staff approximately 50 certified filings per estimates that reporting markets could 1. Clearing Member Reports SPDC. For each SPDC related certified expend up to $5,000 annually per Twelve designated contract markets filing, an ECM would expend, in market on product and service provide clearing member reports accordance with the procedural and purchases to comply with proposed pursuant to Commission regulation submission requirements of regulation 16.02. This would result in 16.00 once on each of an estimated 250 Commission regulation 40.6, an aggregated cost of $75,000 per annum trading days per year. Should the approximately 30 minutes resulting in (15 reporting markets × $5,000). This proposed rules be adopted, it is an aggregate annual burden of 75 hours. estimate, however, is speculative estimated that up to 15 reporting because reporting markets must possess markets, including ECMs with SPDCs F. Proposed Regulation 36.3(c)(6) the ability to audit and track with respect to such contracts, would be Proposed regulation 36.3(c)(6) transactions in the ordinary course of providing this data to the Commission requires an ECM listing a SPDC, upon operations independently of proposed on a continuing basis. The exchanges the Commission’s request, to file a regulation 16.02. and ECMs would be required to submit written demonstration that the ECM is In addition to the start-up burden, confidential information to the in compliance with the core principles proposed regulation 16.02, if adopted, Commission on the aggregate positions of section 2(h)(7)(C) of the Act. would impose certain ongoing costs. and trading activity of each clearing Commission staff estimates that such Commission staff estimates that each member. demonstrations of compliance could reporting market would expend 30 Reporting markets, on a daily basis, require up to 20 hours of response time. minutes for each daily trade and are required under regulation 16.00 to

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report each clearing member’s open long commercial firms using the markets for Commission’s regulations for reportable and short positions, purchases and hedging. Should the notice of proposed accounts, such data is submitted in sales, exchanges of futures, and futures rulemaking be adopted, the total response to customized requests for delivery notices. The data is reported number of Forms 102 filed with the information and may regard accounts separately by proprietary and customer Commission is estimated to increase by and positions that are not reportable. In accounts by futures month and, for 500 to 4,500 per year. Respondents contrast to special calls for identifying options, by puts and calls by expiration would expend 12 minutes completing data made under Commission regulation date and strike price. The Commission each form for a total aggregate burden of 18.04, special calls made under any obtains clearing member reports from 900 hours annually. provision of part 21 of the Commission’s the reporting markets or the clearing regulations generally occur only when a 4. Reports From Traders organizations of each reporting market. particular market shows a potential for Reporting markets and the clearing Traders provide identifying disruption or when there is an organizations routinely compile, information using Forms 40 under investigation of possible violations of analyze and provide such data to each Commission regulation 18.04 and the Act or the regulations thereunder. clearing member. Since the data is position data upon special call under The notice of proposed rulemaking routinely provided to clearing members, Commission regulations 18.00 and would apply the terms of part 21 to the reporting burden for this set of data 18.05. The notice of proposed ECMs with SPDCs with respect to such is estimated at 20 minutes for each rulemaking would extend the contracts, clearing members clearing reporting market per day. Assuming that requirements of those regulations to SPDCs, and SPDC traders. Should the a total of 15 entities would provide this traders of SPDCs. Should the proposed proposed regulations be adopted, the data on a daily basis to the Commission, amendments be adopted, the total Commission estimates that the the total aggregate burden hours for estimated number of traders filing the Commission will continue to make less reporting would be 1,250 hours Form 40 under regulation 18.04 would than 10 special calls under all of the (assuming that there are 250 trading increase by 100 to 2,500 per year with provisions of part 21 of the days annually). each response requiring approximately Commission’s regulations and that each 20 minutes, resulting in an aggregate response to a call will require 2. Reporting Firms annual burden of 833 hours. approximately 1 hour, resulting in an Under Commission regulation 17.00, The Commission has maintained the aggregate reporting burden of 10 hours routine reports are filed only for authority to make special calls on annually. accounts with commodity futures and traders under part 18 of the option positions that exceed levels set Commission’s regulations when the 4. Information Collection Comments by the Commission in regulation information obtained routinely under The Commission invites the public 15.03(b). As proposed, regulation 17.00 part 17 of the Commission’s regulations and other Federal agencies to comment would extend the routine reporting is incomplete for its market and on any aspect of the reporting and requirements of regulation 17.00 to financial surveillance purposes. recordkeeping burdens discussed above. clearing members on ECMs with SPDCs Information obtained on call under Pursuant to 44 U.S.C. 3506(c)(2)(B), the with respect to SPDCs. Should proposed Commission regulations 18.00 and 18.05 Commission solicits comments in order regulation 17.00 be adopted, it is is provided in the manner stipulated per to: (i) Evaluate whether the proposed estimated that up to an additional 30 instruction contained in the special call. collections of information are necessary respondents would be required to file Should the proposed regulations be for the proper performance of the reports at any one time under regulation adopted, the Commission estimates that functions of the Commission, including 17.00 increasing the total number of 12 special calls would be issued to each whether the information will have respondents to 250. The reporting of 45 traders under Commission practical utility; (ii) evaluate the burden consists of staff of reporting regulations 18.00 and 18.05 and that accuracy of the Commission’s estimate firms initializing their information each response to a call would require of the burden of the proposed technology systems for new contracts approximately 5 hours, for an estimated collections of information; (iii) and new accounts. On average it is aggregate annual burden of 2,700 hours. determine whether there are ways to expected that about 15 minutes per day enhance the quality, utility, and clarity 5. Part 21 of the Commission is expended by these reporting firm of the information to be collected; and Regulations staff. Over 250 trading days annually, (iv) minimize the burden of the the aggregate burden would be 15,625 Under part 21 of the Commission’s collections of information on those who hours. regulations, the Commission may issue are to respond, including through the special calls for additional cash and use of automated collection techniques 3. Forms 102 futures data concerning traders from or other forms of information Each account reported to the FCMs, introducing broker, clearing technology. Commission by an FCM, clearing members, foreign brokers, and traders. You may submit your comments member, or foreign broker must also be In addition, under part 21 of the directly to the Office of Information and identified on a Form 102 pursuant to Commission’s regulations (17 CFR part Regulatory Affairs, by fax at (202) 395– regulation 17.01. By amending the 21), the Commission may request 6566 or by e-mail at OIRA- definition of reporting market, clearing identifying information regarding [email protected]. Please member, and clearing organization, the persons who exercise trading control provide the Commission with a copy of notice of proposed rulemaking would over accounts. Position information your comments so that we can extend the requirements of regulation collected pursuant to special call under summarize all written comments and 17.01 to clearing members of ECMs with part 21 of the Commission’s regulations address them in the final rule preamble. SPDCs with respect to such contracts. may be used to audit large trader reports Refer to the Addresses section of this Forms 102 provide information that and is used to investigate potential notice of proposed rulemaking for allows the Commission to combine market abuses. Although similar to the comment submission instructions to the different accounts held or controlled by standardized information routinely Commission. You may obtain a copy of the same trader and to identify collected under part 17 of the the supporting statements for the

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collections of information discussed § 15.00 Definitions of terms used in parts originated, or for which transactions can above by visiting RegInfo.gov. OMB is 15 to 21 of this chapter. be effected, under a general required to make a decision concerning As used in parts 15 to 21 of this authorization and without the specific the collections of information between chapter: consent of the customer, whether the 30 and 60 days after publication of this (a) Cash or Spot, when used in general authorization for such orders or Release. Consequently, a comment to connection with any commodity, means transactions is pursuant to a written OMB is most assured of being fully the actual commodity as distinguished agreement, power of attorney, or effective if received by OMB (and the from a futures or option contract in such otherwise. Commission) within 30 days after commodity. (h) Exclusively self-cleared contract publication of this notice of proposed (b) Clearing member means any means a cleared contract for which no rulemaking. person who is a member of, or enjoys persons, other than a reporting market the privilege of clearing trades in his and its clearing organization, are List of Subjects own name through, the clearing permitted to accept any money, 17 CFR Part 15 organization of a designated contract securities, or property (or extend credit market, registered derivatives in lieu thereof) to margin, guarantee, or Brokers, Commodity futures, transaction execution facility, or secure any trade. Reporting and recordkeeping registered entity under section 1a(29) of (i) Foreign clearing member means a requirements. the Act. ‘‘clearing member’’ (as defined by (c) Clearing organization means the paragraph (b) of this section) who 17 CFR Part 16 person or organization which acts as a resides or is domiciled outside of the medium for clearing transactions in Commodity futures, Reporting and United States, its territories or commodities for future delivery or recordkeeping requirements. possessions. commodity option transactions, or for (j) Foreign trader means any trader (as 17 CFR Part 17 effecting settlements of contracts for defined in paragraph (o) of this section) future delivery or commodity option Brokers, Commodity futures, who resides or is domiciled outside of transactions, for and between members Reporting and recordkeeping the United States, its territories or of any designated contract market, requirements. possessions. registered derivatives transaction 17 CFR Part 18 execution facility or registered entity (k) Guided account program means under section 1a(29) of the Act. any customer trading program which Commodity futures, Reporting and (d) Compatible data processing media limits trading to the purchase or sale of recordkeeping requirements. means data processing media approved a particular contract for future delivery of a commodity or a particular 17 CFR Part 19 by the Commission or its designee. (e) Customer means ‘‘customer’’ (as commodity option that is advised or Commodity futures, Cottons, Grains, defined in § 1.3(k) of this chapter) and recommended to the participant in the Reporting and recordkeeping ‘‘option customer’’ (as defined in program. requirements. § 1.3(jj) of this chapter). (l) Managed account program means (f) Customer trading program means a customer trading program which 17 CFR Part 21 any system of trading offered, includes two or more discretionary Brokers, Commodity futures, sponsored, promoted, managed or in accounts traded pursuant to a common Reporting and recordkeeping any other way supported by, or plan, advice or recommendations. requirements. affiliated with, a futures commission (m) Open contracts means ‘‘open merchant, an introducing broker, a contracts’’ (as defined in § 1.3(t) of this 17 CFR Part 36 commodity trading advisor, a chapter) and commodity option positions held by any person on or Commodity futures, Commodity commodity pool operator, or other subject to the rules of a board of trade Futures Trading Commission. trader, or any of its officers, partners or employees, and which by agreement, which have not expired, been exercised, 17 CFR Part 40 recommendations, advice or otherwise, or offset. directly or indirectly controls trading (n) Reportable position means: Commodity futures, Contract markets, done and positions held by any other (1) For reports specified in parts 17, Designation application, Reporting and person. The term includes, but is not 18 and § 19.00(a)(2) and (a)(3) of this recordkeeping requirements. limited to, arrangements where a chapter any open contract position that For the reasons stated in the program participant enters into an at the close of the market on any preamble, the Commodity Futures expressed or implied agreement not business day equals or exceeds the Trading Commission proposes to amend obtained from other customers and quantity specified in § 15.03 of this part 17 CFR parts 15, 16, 17, 18, 19, 21, 36 makes a minimum deposit in excess of in either: and 40 as follows: that required of other customers for the (i) Any one future of any commodity purpose of receiving specific advice or on any one reporting market, excluding PART 15—REPORTS—GENERAL recommendations which are not made future contracts against which notices of PROVISIONS available to other customers. The term delivery have been stopped by a trader or issued by the clearing organization of 1. The authority citation for part 15 is includes any program which is of the a reporting market; or revised to read as follows: character of, or is commonly known to the trade as, a managed account, guided (ii) Long or short put or call options Authority: 7 U.S.C. 2, 5, 6a, 6c, 6f, 6g, 6i, account, discretionary account, that exercise into the same future of any 6k, 6m, 6n, 7, 7a, 9, 12a, 19, and 21, as commodity pool or partnership account. commodity, or long or short put or call amended by Title XIII of the Food, (g) Discretionary account means a options for options on physicals that Conservation and Energy Act of 2008, Pub. L. No. 110–246, 122 Stat. 1624 (June 18, 2008). commodity futures or commodity have identical expirations and exercise option trading account for which buying into the same physical, on any one 2. Revise § 15.00 to read as follows: or selling orders can be placed or reporting market.

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(2) For the purposes of reports purposes of paragraph (i) of this section, of the foreign clearing member or specified in § 19.00(a)(1) of this chapter, a reporting market; the term ‘‘customer’’ foreign trader for the purposes of any combined futures and futures- means any person for whose benefit a accepting delivery and service of all equivalent option open contract foreign broker makes or causes to be communications issued by or on behalf position as defined in part 150 of this made any futures contract or option of the Commission to the foreign chapter in any one month or in all contract; and the term clearing member or the foreign trader months combined, either net long or net ‘‘communication’’ means any summons, and must provide an address in the short in any commodity on any one complaint, order, subpoena, special call, United States where the agent will reporting market, excluding futures request for information, or notice, as accept delivery and service of positions against which notices of well as any other written document or communications from the Commission. delivery have been stopped by a trader correspondence. This agreement must be filed with the or issued by the clearing organization of * * * * * Commission by the reporting market a reporting market, which at the close of (i) Any reporting market that is a prior to permitting the foreign clearing the market on the last business day of registered entity under section 1a(29)(E) member or the foreign trader to clear or the week exceeds the net quantity limit of the Act that permits a foreign clearing effect any transactions in futures or in spot, single or in all-months fixed in member or foreign trader to clear or option contracts. Unless otherwise § 150.2 of this chapter for the particular effect contracts, agreements or specified by the Commission, the commodity and reporting market. transactions on the trading facility or its agreements required to be filed with the (o) Reporting market means a clearing organization, shall be deemed Commission shall be filed with the designated contract market, registered to be the agent of the foreign clearing Secretary of the Commission at Three entity under section 1a(29)(E) of the Act, member or foreign trader with respect to Lafayette Centre, 1155 21st Street, NW., and unless determined otherwise by the any such contracts, agreements or Washington, DC 20581. Commission with respect to the facility transactions cleared or executed by the (3) A foreign clearing member or a or a specific contract listed by the foreign clearing member or the foreign foreign trader shall notify the facility, a registered derivatives trader. Service or delivery of any Commission immediately if the written transaction execution facility. communication issued by or on behalf agency agreement is terminated, (p) Special account means any of the Commission to the reporting revoked, or is otherwise no longer in commodity futures or option account in market shall constitute valid and effect. If the reporting market knows or which there is a reportable position. effective service upon the foreign should know that the agreement has (q) Trader means a person who, for clearing member or foreign trader. The expired, been terminated, or is no longer his own account or for an account reporting market which has been served in effect, the reporting market shall which he controls, makes transactions with, or to which there has been notify the Secretary of the Commission in commodity futures or options, or has delivered, a communication issued by immediately. If the written agency such transactions made. or on behalf of the Commission to a agreement expires, terminates, or is not 3. In § 15.01, revise paragraph (a) to foreign clearing member or foreign in effect, the reporting market, the read as follows: trader shall transmit the communication foreign clearing member and the foreign § 15.01 Persons required to report. promptly and in a manner which is trader shall be subject to the provisions of paragraphs (i) introductory text and * * * * * reasonable under the circumstances, or (i)(1) of this section. (a) Reporting markets—as specified in in a manner specified by the 5. Add § 15.06 to read as follows: parts 16, 17, and 21 of this chapter. Commission in the communication, to * * * * * the foreign clearing member or foreign § 15.06 Delegations. trader. 4. In § 15.05, revise the heading and (a) The Commission hereby delegates, (1) It shall be unlawful for any such paragraph (a); and add paragraph (i) to until the Commission orders otherwise, reporting market to permit a foreign read as follows: the authority to approve data processing clearing member or a foreign trader to media, as referenced in § 15.00(d), for § 15.05 Designation of agent for foreign clear or effect contracts, agreements or data submissions to the Director of the persons. transactions on the facility or its Division of Market Oversight, to be (a) For purposes of this section, the clearing organization unless the exercised by such Director or by such term ‘‘futures contract’’ means any reporting market prior thereto informs other employee or employees of such contract for the purchase or sale of any the foreign clearing member or foreign Director as designated from time to time commodity for future delivery, or a trader of the requirements of this by the Director. The Director may contract identified under § 36.3(b)(i) of section. submit to the Commission for its this chapter as traded in reliance on the (2) The requirements of paragraphs (i) consideration any matter which has exemption in section 2(h)(3) of the Act, introductory text and (i)(1) of this been delegated in this paragraph. traded or executed on or subject to the section shall not apply to any contracts, Nothing in this paragraph prohibits the rules of any designated contract market transactions or agreements if the foreign Commission, at its election, from or registered derivatives transaction clearing member or foreign trader has exercising the authority delegated in execution facility, or for the purposes of duly executed and maintains in effect a this paragraph. paragraph (i) of this section, a reporting written agency agreement in compliance (b) [Reserved] market; the term ‘‘option contract’’ with this paragraph with a person means any contract for the purchase or domiciled in the United States and has PART 16—REPORTS BY REPORTING sale of a commodity option, or as provided a copy of the agreement to the MARKETS applicable, any other instrument subject reporting market prior to effecting or to the Act pursuant to section 5a(g) of clearing any contract, agreement or 6. The authority citation for part 16 is the Act, traded or executed on or subject transaction on the trading facility or its revised to read as follows: to the rules of any designated contract clearing organization. This agreement Authority: 7 U.S.C. 2, 6a, 6c, 6g, 6i, 7, 7a market or registered derivatives must authorize the person domiciled in and 12a, as amended by Title XIII of the transaction execution facility, or for the the United States to serve as the agent Food, Conservation and Energy Act of 2008,

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Pub. L. No. 110–246, 122 Stat. 1624 (June 18, of the Division of Market Oversight, to each reporting market and for each 2008), unless otherwise noted. be exercised by such Director or by such future position traded in reliance on the 7. In § 16.01, revise paragraphs (e)(1) other employee or employees of such exemption in section 2(h)(3) of the Act, and (e)(2) to read as follows: Director as may be designated from time and each put and call options position to time by the Director. The Director of separately for each reporting market, § 16.01 Trading volume, open contracts, the Division of Market Oversight may expiration and strike price in each prices, and critical dates. submit to the Commission for its special account as of the close of market * * * * * consideration any matter which has on the day covered by the report and, (e) Publication of recorded been delegated in this paragraph. in addition, the quantity of exchanges of information. (1) Reporting markets shall Nothing in this paragraph prohibits the futures for commodities or for make the information in paragraph (a) of Commission, at its election, from derivatives positions and the number of this section readily available to the exercising the authority delegated in delivery notices issued for each such news media and the general public this paragraph. account by the clearing organization of without charge, in a format that readily * * * * * a reporting market and the number enables the consideration of such data, (c) Pursuant to § 16.02, the authority stopped by the account. The report shall no later than the business day following to determine the specific content of any also show all positions in all contract the day to which the information daily trade and supporting data report, months and option expirations of that pertains. The information in paragraphs request that such reports be same commodity on the same reporting (a)(4) through (a)(6) of this section shall accompanied by data that identifies or market for which the special account is be made readily available in a format facilitates the identification of each reportable. that presents the information together. trader for each transaction or order * * * * * (2) Reporting markets shall make the included in a submitted trade and (b) * * * information in paragraphs (b)(1) and supporting data report, and the time for (b)(2) of this section readily available to (1) Accounts of eligible entities— the submission of and the manner and Accounts of eligible entities as defined the news media and the general public, format of such reports. and the information in paragraph (b)(3) in § 150.1 of this chapter that are traded by an independent account controller of this section readily available to the PART 17—REPORTS BY REPORTING shall, together with other accounts general public, in a format that readily MARKETS, FUTURES COMMISSION traded by the independent account enables the consideration of such data, MERCHANTS, CLEARING MEMBERS, controller or in which the independent no later than the business day following AND FOREIGN BROKERS the day to which the information controller has a financial interest, be pertains. 10. The authority citation for part 17 considered a single account. is revised to read as follows: * * * * * * * * * * 8. Section 16.02 is added to read as Authority: 7 U.S.C. 2, 6a, 6c, 6d, 6f, 6g, 6i, (c) [Reserved] follows: 7, 7a and 12a, as amended by Title XIII of the * * * * * Food, Conservation and Energy Act of 2008, § 16.02 Daily trade and supporting data Pub. L. No. 110–246, 122 Stat. 1624 (June 18, (f) Omnibus accounts. If the total open reports. 2008), unless otherwise noted. long positions or the total open short positions for any future of a commodity Reporting markets shall provide trade 11. Revise the heading of part 17 as carried in an omnibus account is a and supporting data reports to the set forth above. reportable position, the omnibus Commission on a daily basis. Such 12. In § 17.00, revise paragraph (a) account is in Special Account status and reports shall include transaction-level introductory text and paragraphs (a)(1), shall be reported by the futures trade data and related order information (b)(1), and (f); and add and reserve commission merchant or foreign broker for each transaction that is executed on paragraph (c) to read as follows: carrying the account in accordance with the reporting market. Reports shall also paragraph (a) of this section. include time and sales data, reference § 17.00 Information to be furnished by files and other information as the futures commission merchants, clearing * * * * * members and foreign brokers. Commission or its designee may require. 13. In § 17.03, revise the heading, the All reports must be submitted at the (a) Special accounts—reportable introductory text, and paragraphs (a) time, and in the manner and format, and futures and options positions, delivery and (b) to read as follows: with the specific content specified by notices, and exchanges of futures. (1) Each futures commission merchant, § 17.03 Delegation of authority to the the Commission or its designee. Upon Director of the Division of Market Oversight. request, such information shall be clearing member and foreign broker accompanied by data that identifies or shall submit a report to the Commission The Commission hereby delegates, facilitates the identification of each for each business day with respect to all until the Commission orders otherwise, trader for each transaction or order special accounts carried by the futures the authority set forth in the paragraphs included in a submitted trade and commission merchant, clearing member below to the Director of the Division of supporting data report if the reporting or foreign broker, except for accounts Market Oversight to be exercised by market maintains such data. carried on the books of another futures such Director or by such other employee 9. In § 16.07, revise the heading and commission merchant or clearing or employees of such Director as introductory text; and add paragraph (c) member on a fully-disclosed basis. designated from time to time by the to read as follows: Except as otherwise authorized by the Director. The Director of the Division of Commission or its designee, such report Market Oversight may submit to the § 16.07 Delegation of authority to the shall be made in accordance with the Commission for its consideration any Director of the Division of Market Oversight. format and coding provisions set forth matter which has been delegated in this The Commission hereby delegates, in paragraph (g) of this section. The paragraph. Nothing in this paragraph until the Commission orders otherwise, report shall show each futures position prohibits the Commission, at its the authority set forth in paragraphs (a), traded in reliance on the exemption in election, from exercising the authority (b) and (c) of this section to the Director section 2(h)(3) of the Act, separately for delegated in this paragraph.

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(a) Pursuant to § 17.00(a) and (h), the Energy Act of 2008, Pub. L. No. 110–246, 122 PART 19—REPORTS BY PERSONS authority to determine whether futures Stat. 1624 (June 18, 2008); 5 U.S.C. 552 and HOLDING BONA FIDE HEDGE commission merchants, clearing 552(b), unless otherwise noted. POSITIONS PURSUANT TO § 1.3(z) OF members and foreign brokers can report 16. Revise § 18.01 to read as follows: THIS CHAPTER AND BY MERCHANTS the information required under AND DEALERS IN COTTON paragraphs (a) and (h) of § 17.00 on § 18.01 Interest in or control of several accounts. series ’01 forms or using some other 19. The authority citation for part 19 format upon a determination that such If any trader holds, has a financial continues to read as follows: person is unable to report the interest in or controls positions in more Authority: 7 U.S.C. 6g(a), 6i, and 12a(5), as information using the format, coding than one account, whether carried with amended by Title XIII of the Food, structure or electronic data transmission the same or with different futures Conservation and Energy Act of 2008, Pub. L. procedures otherwise required. commission merchants or foreign No. 110–246, 122 Stat. 1624 (June 18, 2008), (b) Pursuant to § 17.02, the authority brokers, all such positions and accounts unless otherwise noted. to instruct or approve the time at which shall be considered as a single account 20. In § 19.00, revise paragraph (a) to the information required under §§ 17.00 for the purpose of determining whether read as follows: and 17.01 must be submitted by futures such trader has a reportable position commission merchants, clearing and, unless instructed otherwise in the § 19.00 General provisions. members and foreign brokers provided special call to report under § 18.00 for (a) Who must file series ’04 reports. that such persons are unable to meet the the purpose of reporting. The following persons are required to requirements set forth in §§ 17.01(g) and 17. In § 18.04, revise paragraphs (a)(7) file series ’04 reports: 17.02. and (b)(3)(i) to read as follows: (1) All persons holding or controlling futures and option positions that are * * * * * § 18.04 Statement of reporting trader. 14. In § 17.04, revise the heading, reportable pursuant to § 15.00(n)(2) of * * * * * this chapter and any part of which paragraph (a), and paragraph (b)(1)(ii) to (a) * * * read as follows: constitute bona fide hedging positions (7) The names and locations of all as defined in § 1.3(z) of this chapter; § 17.04 Reporting omnibus accounts to futures commission merchants, clearing (2) Merchants and dealers of cotton reporting firms. members, introducing brokers, and holding or controlling positions for (a) Any futures commission merchant, foreign brokers through whom accounts futures delivery in cotton that are clearing member or foreign broker who owned or controlled by the reporting reportable pursuant to § 15.00(n)(1)(i) of establishes an omnibus account with trader are carried or introduced at the this chapter, or another futures commission merchant, time of filing a Form 40, if such (3) All persons holding or controlling clearing member or foreign broker shall accounts are carried through more than positions for future delivery that are report to that futures commission one futures commission merchant, reportable pursuant to § 15.00(n)(1) of merchant, clearing member or foreign clearing member or foreign broker or this chapter who have received a special broker the total open long positions and carried through more than one office of call for series ’04 reports from the the total open short positions in each the same futures commission merchant, Commission or its designee. Filings in future of a commodity and, for clearing member or foreign broker, or response to a special call shall be made commodity options transactions, the introduced by more than one within one business day of receipt of the total open long put options, the total introducing broker clearing accounts special call unless otherwise specified open short put options, the total open through the same futures commission in the call. For the purposes of this long call options, and the total open merchant, and the name of the reporting paragraph, the Commission hereby short call options for each commodity trader’s account executive at each firm delegates to the Director of the Division options expiration date and each strike or office of the firm. of Market Oversight, or to such other price in such account at the close of (b) * * * person designated by the Director, (3) * * * trading each day. The information authority to issue calls for series ’04 (i) Commercial activity associated required by this section shall be reports. with use of the option or futures market reported in sufficient time to enable the (such as and including production, * * * * * futures commission merchant, clearing 21. In § 19.01, revise paragraph (b) merchandising or processing of a cash member or foreign broker with whom introductory text and paragraph (b)(1) to commodity, asset or liability risk the omnibus account is established to read as follows: management by depository institutions, comply with the regulations of this part or security portfolio risk management). and the reporting requirements § 19.01 Reports on stocks and fixed price purchases and sales pertaining to futures established by the reporting markets. * * * * * 18. In § 18.05, revise paragraphs (a)(2), positions in wheat, corn, oats, soybeans, (b) * * * soybean oil, soybean meal or cotton. (1) * * * (a)(3), and (a)(4) to read as follows: * * * * * (ii) The account is an omnibus § 18.05 Maintenance of books and records. account of another futures commission (b) Time and place of filing reports— merchant, clearing member or foreign (a) * * * Except for reports filed in response to (2) Over the counter or pursuant to broker; or special calls made under § 19.00(a)(3), sections 2(d), 2(g) or 2(h)(1)–(2) of the each report shall be made monthly, as * * * * * Act or part 35 of this chapter; of the close of business on the last (3) On exempt commercial markets PART 18—REPORTS BY TRADERS Friday of the month, and filed at the operating pursuant to sections 2(h)(3)– appropriate Commission office specified 15. The authority citation for part 18 (5) of the Act; in paragraph (b)(1) or (2) of this section continues to read as follows: (4) On exempt boards of trade not later than the second business day Authority: 7 U.S.C. 2, 4, 5, 6a, 6c, 6f, 6g, operating pursuant to section 5d of the following the date of the report in the 6i, 6k, 6m, 6n, 12a and 19, as amended by Act; and case of the 304 report and not later than Title XIII of the Food, Conservation and * * * * * the third business day following the

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date of the report in the case of the 204 merchant or clearing member, as may be contracts for an existing account, or for report. Reports may be transmitted by specified in the call: an introducing broker to introduce such facsimile or, alternatively, information * * * * * an account, for any customer for whom on the form may be reported to the (f) The number of open futures or the futures commission merchant or appropriate Commission office by option positions introduced or carried introducing broker is required to telephone and the report mailed to the in each account, as specified in the call; provide the explanation provided for in same office, not later than midnight of * * * * * § 15.05(c) of this chapter, or for a its due date. (i) As applicable, the following reporting market that is a registered (1) CFTC Form 204 reports with identifying information: entity under section 1a(29)(E) of the Act, respect to transactions in wheat, corn, (1) Whether a trader who holds to cause to open an account in a oats, soybeans, soybean meal and commodity futures or option positions contract traded in reliance on the soybean oil should be sent to the is classified as a commercial or as a exemption in section 2(h)(3) of the Act Commission’s office in Chicago, IL, noncommercial trader for each or to cause to be effected transactions in unless otherwise specifically authorized commodity futures or option contract; a contract traded in reliance on the by the Commission or its designee. (2) Whether the open commodity exemption in section 2(h)(3) of the Act * * * * * futures or option contracts are classified for an existing account for any person as speculative, spreading (straddling), or that is a foreign clearing member or PART 21—SPECIAL CALLS hedging; and foreign trader, until the futures (3) Whether any of the accounts in commission merchant, introducing 22. The authority citation for part 21 question are omnibus accounts and, if broker, clearing member, or reporting continues to read as follows: so, whether the originator of the market has explained fully to the Authority: 7 U.S.C. 1a, 2, 2a, 4, 6a, 6c, 6f, omnibus account is another futures customer, in any manner that such 6g, 6i, 6k, 6m, 6n, 7, 7a, 12a, 19 and 21, as commission merchant, clearing member persons deem appropriate, the amended by Title XIII of the Food, or foreign broker. provisions of this section. Conservation and Energy Act of 2008, Pub. L. * * * * * (c) Upon a determination by the No. 110–246, 122 Stat. 1624 (June 18, 2008); 25. Amend § 21.03 as follows: Commission that information 5 U.S.C. 552 and 552(b), unless otherwise A. Revise the heading and paragraphs concerning accounts may be relevant noted. (a), (b), (c) and (d); information in enabling the Commission 23. Revise § 21.01 to read as follows: B. Revise paragraph (e) introductory to determine whether the threat of a text and paragraphs (e)(1) introductory market manipulation, corner, squeeze, § 21.01 Special calls for information on text , (e)(1)(iv) and (e)(1)(v); and or other market disorder exists on any controlled accounts from futures C. Revise paragraphs (f), (g) and (h) to commission merchants, clearing members reporting market, the Commission may and introducing brokers. read as follows: issue a call for information from a futures commission merchant, clearing Upon call by the Commission, each § 21.03 Selected special calls-duties of foreign brokers, domestic and foreign member, introducing broker or customer futures commission merchant, clearing pursuant to the provisions of this member and introducing broker shall traders, futures commission merchants, clearing members, introducing brokers, and section. file with the Commission the names and reporting markets. (d) In the event the call is issued to addresses of all persons who, by power a foreign broker, foreign clearing of attorney or otherwise, exercise (a) For purposes of this section, the term ‘‘accounts of a futures commission member or foreign trader, its agent, trading control over any customer’s designated pursuant to § 15.05 of this account in commodity futures or merchant, clearing member or foreign broker’’ means all open contracts and chapter, shall, if directed, promptly commodity options on any reporting transmit calls made by the Commission market. transactions in futures and options on the records of the futures commission pursuant to this section by electronic 24. In § 21.02, revise the heading, merchant, clearing member or foreign mail or a similarly expeditious means of introductory text, and paragraphs (f) and broker; the term ‘‘beneficial interest’’ communication. (i) to read as follows: means having or sharing in any rights, (e) The futures commission merchant, § 21.02 Special calls for information on obligations or financial interest in any clearing member, introducing broker, or open contracts in accounts carried or futures or options account; the term customer to whom the special call is introduced by futures commission ‘‘customer’’ means any futures issued must provide to the Commission merchants, clearing members, members of commission merchant, clearing member, the information specified below for the reporting markets, introducing brokers, and introducing broker, foreign broker, or commodity, reporting market and foreign brokers. trader for whom a futures commission delivery months or option expiration Upon special call by the Commission merchant, clearing member or reporting dates named in the call. Such for information relating to futures or market that is a registered entity under information shall be filed at the place option positions held or introduced on section 1a(29)(E) of the Act makes or and within the time specified by the the dates specified in the call, each causes to be made a futures or options Commission. futures commission merchant, clearing contract. Paragraphs (e), (g) and (h) of (1) For each account of a futures member, member of a reporting market, this section shall not apply to any commission merchant, clearing member, introducing broker, or foreign broker, futures commission merchant, clearing introducing broker, or foreign broker, and, in addition, for option information, member or customer whose books and including those accounts in the name of each reporting market, shall furnish to records are open at all times to the futures commission merchant, the Commission the following inspection in the United States by any clearing member or foreign broker, on information concerning accounts of representative of the Commission. the dates specified in the call issued traders owning or controlling such (b) It shall be unlawful for a futures pursuant to this section, such persons futures or option positions, except for commission merchant to open a futures shall provide the Commission with the accounts carried on a fully disclosed or options account or to effect following information: basis by another futures commission transactions in futures or options * * * * *

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(iv) Whether the account is carried for undertake a proceeding pursuant to (1) All electronic trading facilities. A and in the name of another futures section 6(c) of the Act, the Commission facility operating in reliance on the commission merchant, clearing member, shall issue a complaint in accordance exemption in section 2(h)(3) of the Act, introducing broker, or foreign broker; with the requirements of section 6(c), initially and on an on-going basis, must: and and, upon further determination by the (i) Provide the Commission with the (v) For the accounts which are not Commission that the conditions terms and conditions, as defined in part carried for and in the name of another described in paragraph (c) of this 40.1(i) of this chapter and product futures commission merchant, clearing section still exist, a hearing pursuant to descriptions for each agreement, member, introducing broker, or foreign section 6(c) of the Act shall commence contract or transaction listed by the broker, the name and address of any no later than five business days after facility in reliance on the exemption set other person who controls the trading of service of the complaint. In the event forth in section 2(h)(3) of the Act, as the account, and the name and address the person served with the complaint well as trading conventions, of any person who has a ten percent or under section 6(c) of the Act has, prior mechanisms and practices; more beneficial interest in the account. to the commencement of the hearing (ii) Provide the Commission with information explaining how the facility * * * * * under section 6(c) of the Act, sought a meets the definition of ‘‘trading facility’’ (f) If the Commission has reason to hearing pursuant to paragraph (g) of this contained in section 1a(33) of the Act believe that any person has not section and the Commission has and provide the Commission with responded as required to a call made determined to accord him such a access to the electronic trading facility’s pursuant to this section, the hearing, the two hearings shall be trading protocols, in a format specified Commission in writing may inform the conducted simultaneously. Nothing in this section shall preclude the by the Commission; reporting market specified in the call (iii) Demonstrate to the Commission and that reporting market shall prohibit Commission from taking other appropriate action under the Act or the that the facility requires, and will the execution of, and no futures require, with respect to all current and commission merchant, clearing member, Commission’s regulations thereunder, including action under section 6(c) of future agreements, contracts and introducing broker, or foreign broker transactions, that each participant shall effect a transaction in connection the Act, regardless of whether the conditions described in paragraph (c) of agrees to comply with all applicable with trades on the reporting market and laws; that the authorized participants in the months or expiration dates this section still exist, and no ruling issued in the course of a hearing are ‘‘eligible commercial entities’’ as specified in the call for or on behalf of defined in section 1a(11) of the Act; that the futures commission merchant or pursuant to paragraph (g) or this section shall constitute an estoppel against the all agreements, contracts and customer named in the call, unless such transactions are and will be entered into trades offset existing open contracts of Commission in any other action. 26. Revise § 21.04 to read as follows: solely on a principal-to-principal basis; such futures commission merchant or and that the facility has in place a customer. § 21.04 Delegation of authority to the program to routinely monitor (g) Any person named in a special call Director of the Division of Market Oversight. participants’ compliance with these that believes he or she is or may be The Commission hereby delegates, requirements; adversely affected or aggrieved by action until the Commission orders otherwise, (iv) At the request of the Commission, taken by the Commission under the special call authority set forth in provide any other information that the paragraph (f) of this section shall have §§ 21.01 and 21.02 the Director of the Commission, in its discretion, deems the opportunity for a prompt hearing Division of Market Oversight to be relevant to its determination whether an after the Commission acts. That person exercised by such Director or by such agreement, contract, or transaction may immediately present in writing to other employee or employees of such performs a significant price discovery the Commission for its consideration Director as designated from time to time function; and any comments or arguments concerning by the Director. The Director of the (v) File with the Commission the Commission’s action and may Division of Market Oversight may annually, no later than the end of each present for Commission consideration submit to the Commission for its calendar year, a completed copy of any documentary or other evidence that consideration any matter which has CFTC Form 205—Exempt Commercial person deems appropriate. Upon been delegated in this paragraph. Market Annual Certification. The request, the Commission may, in its Nothing in this section shall be deemed information submitted in Form 205 discretion, determine that an oral to prohibit the Commission, at its shall include: hearing be conducted to permit the election, from exercising the authority (A) A statement indicating whether further presentation of information and delegated in this section to the Director. the electronic trading facility continues views concerning any matters by any or to operate under the exemption; and all such persons. The oral hearing may PART 36—EXEMPT MARKETS (B) A certification that affirms the be held before the Commission or any accuracy of and/or updates the person designated by the Commission, 27. The authority citation for part 36 information contained in the previous which person shall cause all evidence to is revised to read as follows: Notification of Operation as an Exempt be reduced to writing and forthwith Authority: 7 U.S.C. 2, 2(h)(7), 6, 6c and Commercial Market. transmit the same and a recommended 12a, as amended by Title XIII of the Food, (2) Electronic trading facilities trading decision to the Commission. The Conservation and Energy Act of 2008, Pub. L. or executing agreements, contracts or Commission’s directive under paragraph No. 110–246, 122 Stat. 1624 (June 18, 2008). transactions other than significant price (f) of this section shall remain in effect 28–30. Section 36.3 is amended by discovery contracts. In addition to the unless and until modified or withdrawn revising paragraphs (b) and (c), and requirements of paragraph (b)(1) of this by the Commission. adding paragraph (d), to read as follows: section, a facility operating in reliance (h) If, during the course of or after the on the exemption in section 2(h)(3) of Commission acts pursuant to paragraph § 36.3 Exempt commercial markets. the Act, with respect to agreements, (f) of this section, the Commission * * * * * contracts or transactions that have not determines that it is appropriate to (b) Required information. been determined to perform significant

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price discovery function, initially and paragraph (b)(2)(ii) of this section that forth in section 2(h)(5)(B)(iii) of the Act on an on-going basis, must: alleges, or relates to, facts that would to the Directors of the Division of (i) Identify to the Commission those constitute a violation of the Act or Market Oversight, the Division of agreements, contracts and transactions Commission regulations. Such copy Clearing and Intermediary Oversight, conducted on the electronic trading shall be provided to the Commission no and the Division of Enforcement to be facility with respect to which it intends, later than 30 calendar days after the exercised by each such Director or by in good faith, to rely on the exemption complaint is received. Provided, such other employee or employees as in section 2(h)(3) of the Act, and which however, that in the case of a complaint the Director may designate. The averaged five trades per day or more alleging, or relating to, facts that would Directors may submit to the over the most recent calendar quarter; constitute an ongoing fraud or market Commission for its consideration any and, with respect to such agreements, manipulation under the Act or matter that has been delegated in this contracts and transactions, either: Commission regulations, such copy paragraph. Nothing in this paragraph (A) Submit to the Commission, in a shall be provided to the Commission prohibits the Commission, at its form and manner acceptable to the within three business days after the election, from exercising the authority Commission, a report for each business complaint is received; and delegated in this paragraph. day, showing for each such agreement, (4) Provide to the Commission on a (6) Subpoenas to foreign persons. A contract or transaction executed the quarterly basis, within 15 calendar days foreign person whose access to an following information: of the close of each quarter, a list of each electronic trading facility is limited or (1) The underlying commodity, the agreement, contract or transaction denied at the direction of the delivery or price-basing location executed on the electronic trading Commission based on the Commission’s specified in the agreement, contract or facility in reliance on the exemption set belief that the foreign person has failed transaction maturity date, whether it is forth in section 2(h)(3) of the Act and timely to comply with a subpoena as a financially settled or physically indicate for each such agreement, provided under section 2(h)(5)(C)(ii) of delivered instrument, and the date of contract or transaction the contract the Act shall have an opportunity for a execution, time of execution, price, and terms and conditions, the contract’s prompt hearing under the procedures quantity; average daily trading volume, and the provided in § 21.03(b) and (h) of this (2) Total daily volume and, if cleared, most recent open interest figures. chapter. open interest; (3) Electronic trading facilities trading (7) Prohibited representation. An (3) For an option instrument, in or executing significant price discovery electronic trading facility relying upon addition to the foregoing information, contracts. In addition to the the exemption in section 2(h)(3) of the the type of option (i.e., call or put) and requirements of paragraph (b)(1) of this Act, with respect to agreements, strike prices; and section, if the Commission determines contracts or transactions that are not (4) Such other information as the that a facility operating in reliance on significant price discovery contracts, Commission may determine. the exemption in section 2(h)(3) of the shall not represent to any person that it Each such report shall be Act trades or executes an agreement, is registered with, designated, electronically transmitted weekly, contract or transaction that performs a recognized, licensed or approved by the within such time period as is acceptable significant price discovery function, the Commission. to the Commission after the end of the facility must, with respect to any (c) Significant price discovery week to which the data applies; or significant price discovery contract, contracts. (B) (1) Provide to the Commission, in publish and provide to the Commission (1) Criteria for significant price a form and manner acceptable to the the information required by § 16.01 of discovery determination. The Commission, electronic access to those this chapter. Commission may determine, in its transactions conducted on the electronic (4) Delegation of authority. The discretion, that an electronic trading trading facility in reliance on the Commission hereby delegates, until the facility operating a market in reliance on exemption in section 2(h)(3) of the Act, Commission orders otherwise, the the exemption in section 2(h)(3) of the and meeting the average five trades per authority to determine the form and Act performs a significant price day or more threshold test of this manner of submitting the required discovery function for transactions in section, which would allow the information under paragraphs (b)(1) the cash market for a commodity Commission to compile the information through (3) of this section, to the underlying any agreement, contract or described in paragraph (b)(2)(i)(A) of Director of the Division of Market transaction executed or traded on the this section and create a permanent Oversight and such members of the facility. In making such a determination, record thereof; Commission’s staff as the Director may the Commission shall consider, as (2) Maintain a record of allegations or designate. The Director may submit to appropriate: complaints received by the electronic the Commission for its consideration (i) Price linkage. The extent to which trading facility concerning instances of any matter that has been delegated by the agreement, contract or transaction suspected fraud or manipulation in this paragraph. Nothing in this uses or otherwise relies on a daily or trading activity conducted in reliance paragraph prohibits the Commission, at final settlement price, or other major on the exemption set forth in section its election, from exercising the price parameter, of a contract or 2(h)(3) of the Act. The record shall authority delegated in this paragraph. contracts listed for trading on or subject contain the name of the complainant, if (5) Special calls. to the rules of a designated contract provided, date of the complaint, market (i) All information required upon market or a derivatives transaction instrument, substance of the allegations, special call of the Commission under execution facility to value a position, and name of the person at the electronic section 2(h)(5)(B)(iii) of the Act shall be transfer or convert a position, cash or trading facility who received the transmitted at the time and to the office financially settle a position, or close out complaint; of the Commission as may be specified a position; (3) Provide to the Commission, in the in the call. (ii) Arbitrage. The extent to which the form and manner prescribed by the (ii) The Commission hereby delegates, price for the agreement, contract or Commission, a copy of the record of until the Commission orders otherwise, transaction is sufficiently related to the each complaint received pursuant to the authority to make special calls as set price of a contract or contracts listed for

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trading on or subject to the rules of a electronic trading facility and other minimum financial standards for designated contract market or interested persons. Any such written members or market participants. derivatives transaction execution data, views and arguments shall be filed Subsequent rule changes must be facility, or a significant price discovery with the Secretary of the Commission, certified by the electronic trading contract or contracts trading on or in the form and manner specified by the facility pursuant to section 5c(c) of the subject to the rules of an electronic Commission, within 30 calendar days of Act and § 40.6 of this chapter. The trading facility, so as to permit market publication of notice in the Federal electronic trading facility also may participants to effectively arbitrage Register or within such other time request Commission approval of any between the markets by simultaneously specified by the Commission. After rule changes pursuant to section 5c(c) of maintaining positions or executing consideration of all relevant the Act and § 40.5 of this chapter; trades in the contracts on a frequent and information, the Commission shall issue (iii) A description of the trading recurring basis; an order explaining its determination system, algorithm, security and access (iii) Material price reference. The whether the agreement, contract or limitation procedures with a timeline extent to which, on a frequent and transaction executed or traded by the for an order from input through recurring basis, bids, offers, or electronic trading facility performs a settlement, and a copy of any system transactions in a commodity are directly significant price discovery function test procedures, tests conducted, test based on, or are determined by under the criteria specified in results and contingency or disaster referencing, the prices generated by paragraphs (c)(1)(i) through (v) of this recovery plans; agreements, contracts or transactions section. (iv) A copy of any documents being traded or executed on the (4) Compliance with Core Principles. pertaining to or describing the electronic trading facility; Following the issuance of an order by electronic trading system’s legal status (iv) Material liquidity. The extent to the Commission that the electronic and governance structure, including which the volume of agreements, trading facility executes or trades an governance fitness information; contracts or transactions in the agreement, contract or transaction that (v) An executed or executable copy of commodity being traded on the performs a significant price discovery any agreements or contracts entered into electronic trading facility is sufficient to function, the electronic trading facility or to be entered into by the electronic have a material effect on other must demonstrate, with respect to that trading facility, including partnership or agreements, contracts or transactions agreement, contract or transaction, limited liability company, third-party compliance with the Core Principles listed for trading on or subject to the regulatory service, or member or user under section 2(h)(7)(C) of the Act and rules of a designated contract market, a agreements, that enable or empower the the applicable provisions of this part. If derivatives transaction execution electronic trading facility to comply the Commission’s order represents the facility, or an electronic trading facility with a Core Principle; operating in reliance on the exemption first time it has determined that the (vi) A copy of any manual or other in section 2(h)(3) of the Act; electronic trading facility’s agreement, document describing, with specificity, (v) Other material factors [Reserved]. contract or transaction performs a (2) Notification of possible significant significant price discovery function, the the manner in which the trading facility price discovery contract conditions. An facility must submit a written will conduct trade practice, market and electronic trading facility operating in demonstration of compliance with the financial surveillance; reliance on section 2(h)(3) of the Act Core Principles within 90 calendar days (vii) To the extent that any of the shall promptly notify the Commission, of the date of the Commission’s order. items in paragraphs (c)(4)(ii) through and such notification shall be For subsequent determinations by the (vi) of this section raise issues that are accompanied by supporting information Commission that the electronic trading novel, or for which compliance with a or data concerning any contract that: facility has an additional agreement, core principle is not self-evident, an (i) Averaged five trades per day or contract or transaction that performs a explanation of how that item satisfies more over the most recent calendar significant price discovery function, the the applicable core principle or quarter; and facility must submit a written principles. The electronic trading (ii) (A) For which the exchange sells demonstration of compliance with the facility must identify with particularity its price information regarding the Core Principles within 15 calendar days information in the submission that will contract to market participants or of the date of the Commission’s order. be subject to a request for confidential industry publications; or Attention is directed to Appendix B of treatment pursuant to § 145.09 of this (B) Whose daily closing or settlement this part for guidance on and acceptable chapter. The electronic trading facility prices on 95 percent or more of the days practices for complying with the Core must follow the procedures specified in in the most recent quarter were within Principles. Submissions demonstrating § 40.8 of this chapter with respect to any 2.5 percent of the contemporaneously how the electronic trading facility information in its submission for which determined closing, settlement or other complies with the Core Principles with confidential treatment is requested. daily price of another agreement, respect to its significant price discovery (5) Determination of compliance with contract or transaction. contract must be filed with the Secretary core principles. The Commission shall (3) Procedure for significant price of the Commission at its Washington, take into consideration differences discovery determination. Before making DC headquarters. Submissions must between cleared and uncleared a final price discovery determination include the following: significant price discovery contracts under this paragraph, the Commission (i) A written certification that the when reviewing the implementation of shall publish notice in the Federal significant price discovery contract(s) the Core Principles by an electronic Register that it intends to undertake a complies with the Act and regulations trading facility. The electronic facility determination with respect to whether a thereunder; also has reasonable discretion in particular agreement, contract or (ii) A copy of the electronic trading accounting for differences between transaction performs a significant price facility’s rules (as defined in § 40.1 of cleared and uncleared significant price discovery function and to receive this chapter) and any technical manuals, discovery contracts when establishing written data, views and arguments other guides or instructions for users of, the manner in which it complies with relevant to its determination from the or participants in, the market, including the Core Principles.

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(6) Information relating to compliance (iii) Procedure. Before making a final Arbitrage; Material Price Reference; and with core principles. Upon request by determination whether an agreement, Material Liquidity. the Commission, an electronic trading contract or transaction has ceased to 2. Not all listed factors must be present to facility trading a significant price perform a significant price discovery support a determination that a contract performs a significant price discovery discovery contract shall file with the function, the Commission shall publish function. Moreover, the statutory language Commission a written demonstration, notice in the Federal Register that it neither prioritizes the factors nor specifies containing such supporting data, intends to undertake such a the degree to which a significant price information and documents, in the form determination and to receive written discovery contract must conform to the and manner and within such time as the data, views and arguments relevant to various factors. Congress has indicated that it Commission may specify, that the its determination from the electronic intends that the Commission should not electronic trading facility is in trading facility and other interested make a determination that an agreement, compliance with one or more core persons. Written submissions shall be contract or transaction performs a significant price discovery function on the basis of the principles as specified in the request, or filed with the Secretary of the Price Linkage factor unless the agreement, that is otherwise requested by the Commission in the form and manner contract or transaction also has sufficient Commission to enable the Commission specified by the Commission, within 30 volume to impact other regulated contracts or to satisfy its obligations under the Act. calendar days of publication of notice in to become an independent price reference or (7) Enforceability. An agreement, the Federal Register or within such benchmark that is regularly utilized by the contract or transaction entered into on other time specified by the Commission. public. The Commission believes that the or pursuant to the rules of an electronic After consideration of all relevant Arbitrage and Material Price Reference trading facility trading or executing a information, the Commission shall issue factors can be considered separately from each other. That is, the Commission could significant price discovery contract shall an order explaining its determination make a determination that a contract serves not be void, voidable, subject to whether the agreement, contract or a significant price discovery function based rescission or otherwise invalidated or transaction has ceased to perform a on the presence of one of these factors and rendered unenforceable as a result of: significant price discovery function and, the absence of the other. The presence of any (i) A violation by the electronic if so, vacating its prior order. If such an of these factors, however, would not trading facility of the provisions of order issues, and the Commission necessarily be sufficient to establish the section 2(h) of the Act or this part; or subsequently determines, on its own contract as a significant price discovery (ii) Any Commission proceeding to initiative or after notification by the contract. The fourth factor, Liquidity, would electronic trading facility, that the be considered in conjunction with the alter or supplement a rule, term or arbitrage and linkage factors as a significant condition under section 8a(7) of the Act, agreement, contract or transaction that amount of liquidity presumably would be to declare an emergency under section was subject to the vacation order again necessary for a contract to perform a 8a(9) of the Act, or any other proceeding performs a significant price discovery significant price discovery function in the effect of which is to alter, function, the electronic trading facility conjunction with these factors. supplement or require an electronic must comply with the Core Principles 3. These factors do not lend themselves to trading facility to adopt a specific term within 15 calendar days of the date of a mechanical checklist or formulaic analysis. or condition, trading rule or procedure, the Commission’s order. Accordingly, this guidance is intended to or to take or refrain from taking a illustrate which factors, or combinations of (iv) Automatic vacation of significant factors, the Commission will look to when specific action. price discovery determination. determining that a contract is performing a (8) Procedures for vacating a Regardless of whether a proceeding to significant price discovery function, and determination of a significant price vacate has been initiated, any significant under what circumstances the presence of a discovery function. price discovery contract that has no particular factor or factors would be (i) By the electronic trading facility. open interest and in which no trading sufficient to support such a determination. An electronic trading facility that has occurred for a period of 12 complete (A) MATERIAL LIQUIDITY—The extent to executes or trades an agreement, and consecutive calendar months shall, which the volume of agreements, contracts or transactions in the commodity being traded contract or transaction that the without further proceedings, no longer Commission has determined performs a on the electronic trading facility is sufficient be considered to be a significant price to have a material effect on other agreements, significant price discovery function discovery contract. contracts or transactions listed for trading on under paragraph (c)(3) of this section (d) Commission review. The or subject to the rules of a designated may petition the Commission to vacate Commission shall, at least annually, contract market, a derivatives transaction that determination. The petition shall evaluate as appropriate agreements, execution facility, or an electronic trading demonstrate that the agreement, facility operating in reliance on the contracts or transactions conducted on contract or transaction no longer exemption in section 2(h)(3) of the Act. an electronic trading facility in reliance performs a significant price discovery (1) Liquidity is a broad concept that on the exemption provided in section function under the criteria specified in captures the ability to transact immediately 2(h)(3) of the Act to determine whether paragraph (c)(1) of this section, and has with little or no price concession. they serve a significant price discovery Traditionally, objective measures of trading not done so for at least the prior 12 function as described in paragraph (c)(1) such as volume or open interest have been months. An electronic trading facility of this section 31. Part 36 is amended by used as measures of liquidity. So, for shall not petition for a vacation of a adding a new Appendix A to read as example, a market in which trades occur significant price discovery follows: multiple times per minute at prices that determination more frequently than differ by only fractions of a cent normally once every 12 months. Appendix A to Part 36—Guidance on would be considered highly liquid, since (ii) By the Commission. The Significant Price Discovery Contracts presumably a trader could quickly execute a Commission may, on its own initiative, trade at a price that was approximately the 1. Section 2(h)(7) of the CEA specifies four same as the price for other recently executed begin vacation proceedings if it believes factors that the Commission must consider, trades. Other factors also will affect the that an agreement, contract or as appropriate, in making a determination characterization of liquidity, such as whether transaction has not performed a that a contract is performing a significant a large trade—e.g., 100 contracts versus 1 significant price discovery function for price discovery function. The four factors contract—could be executed without a at least the prior 12 months. prescribed by the statute are: Price Linkage; significant price concession. For example,

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having to wait a day to sell 1000 bushels of prices obtained from a basket of contracts contract to be a significant price discovery corn may be considered an illiquid market traded on other exchanges. contract. As a threshold, the Commission while waiting a day to sell a home may be (2) For a linked contract, the mere fact that will consider a 2.5 percent price range for 95 considered quite liquid. Thus, quantifying a contract is linked to another contract will per cent of closing or settlement prices over the levels of immediacy and price concession not be sufficient to support a determination the most recent quarter to be sufficiently that would define material liquidity may that a contract performs a significant price close for a linked contract to potentially be differ from one market or commodity to discovery function. To assess whether such deemed a significant price discovery another. a determination is warranted, the contract. For example, if, over the most (2) The Commission believes that material Commission will examine the relationship recent quarter, it was found that on 95 liquidity alternatively can be identified by between transaction prices of the linked percent or more of the days the closing or the impact liquidity exhibits through contract and the prices of the referenced settlement price of the contract, which has observed prices. In markets where material contract(s). The Commission believes that been calculated using transaction prices, was liquidity exists, a more or less continuous where material liquidity exists, prices for the within 2.5 percent of the closing or stream of prices can be observed and the linked contract would be observed to be settlement price of a contract to which it was prices should be similar. For example, if the substantially the same as or move linked, the Commission potentially will trading of a contract occurs on average five substantially in conjunction with the prices consider the contract to perform a significant times a day, there will be on average five of the referenced contract(s). Where such price discovery function. observed prices for the contract per day. If price characteristics are observed on an (C) ARBITRAGE CONTRACTS—The extent the market is liquid in terms of traders ongoing basis, the Commission would expect to which the price for the agreement, contract having to make little in the way of price to determine that the linked contract is a or transaction is sufficiently related to the concessions to execute these trades, the significant price discovery contract. price of a contract or contracts listed for prices of this contract should be similar to (3) As an example, where the Commission trading on or subject to the rules of a those observed for similar or related contracts has observed price linkage, it will next designated contract market or derivatives traded in liquid markets elsewhere. Thus, in consider whether transactions were occurring transaction execution facility, or a significant making determinations that contracts have on a daily basis for the linked contract in price discovery contract or contracts trading material liquidity, the Commission will look material volumes. (Conversely, where on or subject to the rules of an electronic to transaction prices, both in terms of how volume has increased noticeably in a trading facility, so as to permit market often prices are observed and the extent to particular contract, the Commission would participants to effectively arbitrage between which observed prices tend to correlate with look for linkage) The ultimate level of the markets by simultaneously maintaining other contemporaneous prices. volume that would be considered material for positions or executing trades in the contracts (3) The Commission anticipates that purposes of deeming a contract a significant on a frequent and recurring basis. material liquidity will frequently be a price discovery contract will likely differ (1) Arbitrage contracts are those contracts consideration in evaluating whether a from one contract to another depending on that can be combined with other contracts to contract is a significant price discovery the characteristics of the underlying exploit expected economic relationships in contract; however, there may be commodity and the overall size of the anticipation of a profit. In assessing whether circumstances in which other factors so physical market in which it is traded. At a a contract can be incorporated into an dominate the conclusion that a contract is minimum, however, the Commission will arbitrage strategy, the Commission will weigh serving a significant price discovery function consider a linked contract which has volume the terms and conditions of a contract in that a finding of material liquidity in the equal to 5% of the volume of trading in the comparison to contracts that potentially contract would not be necessary. contract to which it is linked to have could be used in an arbitrage strategy; will Circumstances in which this might arise are sufficient volume potentially to be deemed a consult with industry or other sources discussed with respect to the assessment of significant price discovery contract. In regarding a contract’s viability in an arbitrage other factors below. combination with this volume level, the strategy; and will rely on direct observation (4) Finally, material liquidity itself would Commission will also examine the confirming the use of a contract in arbitrage not be sufficient to make a determination that relationship between prices of the linked strategies. a contract is a significant price discovery contract and the contract to which it is linked (2) As with linked contracts, the mere fact contract, but combined with other factors it to determine whether a contract is serving a that a contract could be employed in an can serve as a guidepost indicating which significant price discovery function. As a arbitrage strategy will not be sufficient to contracts are functioning as significant price threshold, the Commission will consider a make a determination that a contract is a discovery contracts. As further discussed 2.5 percent price range for 95 percent of significant price discovery contract. In below, material liquidity, as reflected contemporaneously determined closing, addition, the level of liquidity will be through the prices of linked or arbitraged settlement, or other daily prices over the considered. To assess whether designation as contracts, will be a primary consideration in most recent quarter to be sufficiently close a significant price discovery contract is determining whether such contracts are for a linked contract potentially to be deemed warranted, the Commission will examine the significant price discovery contracts. a significant price discovery contract. For relationship between transaction prices of an (B) PRICE LINKAGE—The extent to which example, if, over the most recent quarter, it arbitrage contract and the prices of the the agreement, contract or transaction uses was found that 95 percent of the closing, contract(s) to which it is related. The or otherwise relies on a daily or final settlement, or other daily prices of the Commission believes that where material settlement price, or other major price contract, which have been calculated using liquidity exists, prices for the arbitrage parameter, of a contract or contracts listed transaction prices, were within 2.5 percent of contract would be observed to move for trading on or subject to the rules of a the contemporaneously determined closing, substantially in conjunction with the prices designated contract market or a derivatives settlement, or other daily prices of a contract of the related contract(s) to which it is transaction execution facility to value a to which it was linked, the Commission economically linked. Where such price position, transfer or convert a position, cash potentially would consider the contract to characteristics are observed on an ongoing or financially settle a position, or close out perform a significant price discovery basis, it is likely that the linked contract a position. function. performs a significant price discovery (1) A price-linked contract is a contract (4) If, in the example above, the function. that relies on a contract traded on another Commission determines that material volume (3) The Commission will apply the same trading facility to settle, value or otherwise existed, it will examine the relationship threshold liquidity and price relationship offset the price-linked contract. The link may between the prices of the linked contracts standards for arbitrage contracts as it does for involve a one-to-one linkage, in that the and the referenced contracts. If it finds that linked contracts. That is, the Commission value of the linked contract is based on a the transaction prices of the linked contract will view the average of 5 trades per day or single contract’s price, or it may involve were consistently within a small percentage more threshold as the level of activity that multiple contracts. An example of a multiple of the referenced contract or index of would potentially meet the material volume contract linkage might be where the contracts that was being referenced, the criterion. With respect to prices, the settlement price is calculated as an index of Commission will be likely to find the linked Commission will consider an arbitrage

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contract potentially to be a significant price by a section 2(h)(3) contract are reported in used to demonstrate to the Commission core discovery contract if, over the most recent a widely distributed industry publication. In principle compliance under § 36.3(c)(4). The quarter, greater than 95 percent of the closing making this determination, the Commission guidance for each core principle is or settlement prices of the contract, which will consider the reputation of the illustrative only of the types of matters an have been calculated using transaction publication within the industry, how electronic trading facility may address, as prices, fall within 2.5 percent of the closing frequently it is published, and whether the applicable, and is not intended to be used as or settlement price of the contract or information contained in the publication is a mandatory checklist. Addressing the issues contracts to which it could be arbitraged. routinely consulted by industry participants and questions set forth in this guidance will (D) MATERIAL PRICE REFERENCE—The in pricing cash market transactions. help the Commission in its consideration of extent to which, on a frequent and recurring (5) Under a Material Price Reference whether the electronic trading facility is in basis, bids, offers or transactions in a analysis, the Commission expects that compliance with the core principles. A commodity are directly based on, or are material liquidity in the contract likely will submission pursuant to § 36.3(c)(4) should determined by referencing, the prices be the primary motivation for a publisher to include an explanation or other form of generated by agreements, contracts or publish particular prices. In other words, the documentation demonstrating that the transactions being traded or executed on the fact that the price of a contract is being used electronic trading facility complies with the electronic trading facility. as a reference by industry participants core principles. (1) The Commission will rely on one of two suggests, prima facie, that the contract 2. Acceptable practices meeting selected sources of evidence—direct or indirect—to performs a significant price discovery requirements of the core principles are set determine that the price of a contract was function. But the Commission recognizes that forth in paragraph (b) following each core being used as a material price reference and, trading levels could nonetheless be low for principle. Electronic trading facilities on therefore, serving a significant price the contract while still serving a significant which significant price discovery contracts discovery function. The primary source of price discovery function and that evidence of are traded or executed that follow the direct evidence is that cash market bids, routine publication and consultation by specific practices outlined under paragraph offers or transactions are directly based on, industry participants may be sufficient to (b) for any core principle in this appendix or quoted at a differential to, the prices establish the contract as a significant price will meet the selected requirements of the generated on the market on a frequent and discovery contract. On the other hand, while applicable core principle. Paragraph (b) is for recurring basis. The Commission expects that cash market participants may regularly refer illustrative purposes only, and does not state normally only contracts with material to published prices of a particular contract the exclusive means for satisfying a core liquidity will be referenced by the cash when establishing cash market prices, it may principle. market; however, the Commission notes that be the case that the contract itself is a niche CORE PRINCIPLE I OF SECTION it may be possible for a contract to have very market for a specialized grade of the 2(h)(7)(C)—CONTRACTS NOT READILY low liquidity and yet still be used as a price commodity or for delivery at a minor SUSCEPTIBLE TO MANIPULATION. The reference. In such cases, the simple fact that geographic location. In such cases, the electronic trading facility shall list only participants in the underlying cash market Commission will look to such measures as significant price discovery contracts that are broadly have elected to use the contract price trading volume, open interest, and the not readily susceptible to manipulation. as a price reference would be a strong significance of the underlying cash market to (a) Guidance. Upon determination by the indicator that the contract is a significant make a determination that a contract is Commission that a contract listed for trading price discovery contract. functioning as a significant price discovery on an electronic trading facility is a (2) In evaluating a contract’s price contract. If an examination of trading in the significant price discovery contract, the discovery role as a directly referenced price contract were to reveal that true price electronic trading facility must self-certify source, the Commission will perform an discovery was occurring in other more the terms and conditions of the significant analysis to determine whether cash market broadly defined contracts and that this price discovery contract under § 36.3(c)(4) participants are quoting bid or offer prices or contract was itself simply reflective of those within 90 calendar days of the date of the entering into transactions at prices that are broader contracts, it is less likely the Commission’s order, if the contract is the set either explicitly or implicitly at a Commission will deem the contract a electronic trading facility’s first significant differential to prices established for the significant price discovery contract. price discovery contract; or 15 days from the contract. Cash market prices are set explicitly (6) Because price referencing normally date of the Commission’s order if the contract at a differential to the section 2(h)(3) contract occurs out of the view of the electronic is not the electronic trading facility’s first when, for instance, they are quoted in dollars trading facility, the Commission may have significant price discovery contract. Once the and cents above or below the reference difficulty ascertaining the extent to which Commission determines that a contract contract’s price. Cash market prices are set cash market participants actually reference or performs a significant price discovery implicitly at a differential to a section 2(h)(3) consult a contract’s price when transacting. function, subsequent rule changes must be contract when, for instance, they are arrived The Commission expects, however, that as a self-certified to the Commission by the at after adding to, or subtracting from the contract begins to be relied upon to set a electronic trading facility pursuant to § 40.6 section 2(h)(3) contract, but then quoted or reference price, market participants will be of this chapter. reported at a flat price. The Commission will increasingly willing to purchase price (b) Acceptable practices. Guideline No. 1, also consider whether cash market entities information. To the extent, then, that an 17 CFR part 40, Appendix A may be used as are quoting cash prices based on a section electronic trading facility begins to sell its guidance in meeting this core principle for 2(h)(3) contract on a frequent and recurring price information regarding a contract to significant price discovery contracts. basis. market participants or industry publications, CORE PRINCIPLE II OF SECTION (3) The second source of evidence is that the contract will meet a threshold standard 2(h)(7)(C)—MONITORING OF TRADING. the price of the contract is being routinely to indicate that the contract potentially is a The electronic trading facility shall monitor disseminated in widely distributed industry significant price discovery contract. trading in significant price discovery publications—or offered by the ECM itself for 32. Part 36 is amended by adding a contracts to prevent market manipulation, some form of remuneration—and consulted price distortion, and disruptions of the on a frequent and recurring basis by industry new Appendix B to read as follows: delivery of cash-settlement process through participants in pricing cash market Appendix B to Part 36—Guidance On, market surveillance, compliance and transactions. As with contract prices that are and Acceptable Practices in, disciplinary practices and procedures, directly incorporated into cash market prices, Compliance With Core Principles including methods for conducting real-time the Commission assumes that industry monitoring of trading and comprehensive publications choose to publish prices 1. This Appendix provides guidance on and accurate trade reconstructions. because of the value they transfer to industry complying with the core principles under (a) Guidance. An electronic trading facility participants for the purpose of formulating section 2(h)(7)(C) of the Act and this part, on which significant price discovery prices in the cash market. both initially and on an ongoing basis. The contracts are traded or executed should, with (4) In applying this criterion, consideration guidance is provided in paragraph (a) respect to those contracts, demonstrate a will be given to whether prices established following each core principle and can be capacity to prevent market manipulation and

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have trading and participation rules to detect (a) Guidance. An electronic trading facility be retained in the form and manner specified and deter abuses. The facility should seek to on which significant price discovery by the Commission or, where no acceptable prevent market manipulation and other contracts are traded or executed should, with manner of retention is specified, in trading abuses through a dedicated regulatory respect to those contracts, have the ability accordance with the recordkeeping standards department or by delegation of that function and authority to collect information and of Commission regulation 1.31. to an appropriate third party. An electronic documents on both a routine and non-routine (3) Arrangements and resources for the trading facility also should have the authority basis, including the examination of books disclosure of the obtained information and to intervene as necessary to maintain an and records kept by participants. This documents to the Commission upon request. orderly market. includes having arrangements and resources To satisfy section 2(h)(7)(C)(III)(bb), the (b) Acceptable practices. for recording full data entry and trade details electronic trading facility should maintain (1) An acceptable trade monitoring and safely storing audit trail data. An records of all information and documents program. An acceptable trade monitoring electronic trading facility should have related to each significant price discovery program should facilitate, on both a routine systems sufficient to enable it to use the contract in a form and manner acceptable to and non-routine basis, arrangements and information for purposes of assisting in the the Commission. Where no acceptable resources to detect and deter abuses through prevention of participant and market abuses manner of maintenance is specified, records direct surveillance of each significant price through reconstruction of trading and should be maintained in accordance with the discovery contract. Direct surveillance of providing evidence of any violations of the recordkeeping standards of Commission each significant price discovery contract will electronic trading facility’s rules. regulation 1.31. generally involve the collection of various (b) Acceptable practices. (4) The capacity to carry out appropriate market data, including information on (1) The goal of an audit trail is to detect information-sharing agreements as the participants’ market activity. Those data and deter market abuse. An effective contract Commission may require. Appropriate should be evaluated on an ongoing basis in audit trail should capture and retain information-sharing agreements could be order to make an appropriate regulatory sufficient trade-related information to permit established with other markets or the response to potential market disruptions or electronic trading facility staff to detect Commission can act in conjunction with the abusive practices. For contracts with a trading abuses and to reconstruct all electronic trading facility to carry out such substantial number of participants, an transactions within a reasonable period of information sharing. effective surveillance program should time. An audit trail should include CORE PRINCIPLE IV OF SECTION employ a much more comprehensive large specialized electronic surveillance programs 2(h)(7)(C)—POSITION LIMITATIONS OR trader reporting system. that identify potentially abusive trades and ACCOUNTABILITY. The electronic trading (2) Authority to collect information and trade patterns. An acceptable audit trail must facility shall adopt, where necessary and documents. The electronic trading facility be able to track an order from time of entry appropriate, position limitations or position should have the authority to collect into the trading system through its fill. The accountability for speculators in significant information and documents in order to electronic trading facility must create and price discovery contracts, taking into account reconstruct trading for appropriate market maintain an electronic transaction history positions in other agreements, contracts and analysis. Appropriate market analysis should database that contains information with transactions that are treated by a derivatives enable the electronic trading facility to assess respect to transactions executed on each clearing organization, whether registered or whether each significant price discovery contract is responding to the forces of supply significant price discovery contract. not registered, as fungible with such and demand. Appropriate data usually (2) An acceptable audit trail should significant price discovery contracts to include various fundamental data about the include the following: original source reduce the potential threat of market underlying commodity, its supply, its documents, transaction history, electronic manipulation or congestion, especially demand, and its movement through market analysis capability, and safe storage during trading in the delivery month. channels. Especially important are data capability. An acceptable audit trail system (a) Guidance. [Reserved] related to the size and ownership of would satisfy the following practices. (b) Acceptable practices. deliverable supplies—the existing supply (i) Original source documents. Original (1) Introduction. In order to diminish and the future or potential supply—and to source documents include unalterable, potential problems arising from excessively the pricing of the deliverable commodity sequentially identified records on which large speculative positions, and to facilitate relative to the futures price and relative to trade execution information is originally orderly liquidation of expiring contracts, an similar, but non-deliverable, kinds of the recorded. For each order (whether filled, electronic trading facility relying on the commodity. For cash-settled contracts, it is unfilled or cancelled, each of which should exemption in section 2(h)(3) should adopt more appropriate to pay attention to the be retained or electronically captured), such rules that set position limits or accountability availability and pricing of the commodity records reflect the terms of the order, an levels on traders’ cleared positions in making up the index to which the contract account identifier that relates back to the significant price discovery contracts. These will be settled, as well as monitoring the account(s) owner(s), and the time of order position limit rules specifically may exempt continued suitability of the methodology for entry. bona fide hedging; permit other exemptions; deriving the index. (ii) Transaction history. A transaction or set limits differently by market, delivery (3) Ability to assess participants’ market history consists of an electronic history of month or time period. For the purpose of activity and power. To assess participants’ each transaction, including: evaluating a significant price discovery activity and potential power in a market, (A) All the data that are input into the contract’s speculative-limit program for electronic trading facilities, with respect to trade entry or matching system for the cleared positions, the Commission will significant price discovery contracts, at a transaction to match and clear; consider the specified position limits or minimum should have routine access to the (B) Timing and sequencing data adequate accountability levels, aggregation policies, positions and trading of its participants and, to reconstruct trading; and types of exemptions allowed, methods for if applicable, should provide for such access (C) The identification of each account to monitoring compliance with the specified through its agreements with its third-party which fills are allocated. limits or levels, and procedures for dealing provider of clearing services. (iii) Electronic analysis capability. An with violations. CORE PRINCIPLE III OF SECTION electronic analysis capability that permits (2) Accounting for cleared and uncleared 2(h)(7)(C)—ABILITY TO OBTAIN sorting and presenting data included in the trades. INFORMATION. The electronic trading transaction history so as to reconstruct (i) Speculative-limit levels typically should facility shall establish and enforce rules that trading and to identify possible trading be set in terms of a trader’s combined allow the electronic trading facility to obtain violations with respect to market abuse. position involving cleared trades in a any necessary information to perform any of (iv) Safe storage capability. Safe storage significant price discovery contract, plus the functions described in this subparagraph, capability provides for a method of storing positions in agreements, contracts and provide the information to the Commission the data included in the transaction history transactions that are treated by a derivatives upon request, and have the capacity to carry in a manner that protects the data from clearing organization, whether registered or out such international information-sharing unauthorized alteration, as well as from not registered, as fungible with such agreements as the Commission may require. accidental erasure or other loss. Data should significant price discovery contract. (This

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circumstance typically exists where an price discovery contracts non-spot individual facility that has adopted non-spot or all- exempt commercial market lists a particular month position accountability levels and all- months-combined position limits, the contract for trading but also allows for months-combined position accountability electronic trading facility should set non-spot positions in that contract to be cleared levels. An electronic trading facility may month position limits and all-months- together with positions established through establish non-spot individual month position combined position limits for its significant bilateral or off-exchange transactions, such as limits and all-months-combined position price discovery contract at the same (or block trades, in the same contract. limits for its significant price discovery lower) levels as those specified for the Essentially, both the on-facility and off- contracts in lieu of position accountability economically-equivalent contract. facility transactions are considered fungible levels. (5) Provisions for uncleared contracts. If an with each other.) In this connection, the (i) Definition. Position accountability electronic trading facility offers a significant electronic trading facility should make provisions provide a means for an exchange price discovery contract that is exclusively arrangements to ensure that it is able to to monitor traders’ positions that may uncleared, or one that may be either cleared ascertain accurate position data for the threaten orderly trading. An acceptable by a derivatives clearing organization or market. accountability provision sets target uncleared at the discretion of the trader, the (ii) For significant price discovery accountability threshold levels that may be trading facility should establish for the contracts that may be traded on either a exceeded, but once a trader breaches such uncleared trades a spot-month volume cleared or an uncleared basis, the electronic accountability levels, the electronic trading accountability level equal to the spot-month trading facility should apply position limits facility should initiate an investigation to speculative position limit. In this regard, the to cleared transactions in the contract. For determine whether the individual’s trading electronic trading facility should keep track those transactions in the contract that are not activity is justified and is not intended to of each trader’s uncleared transactions in a cleared, the electronic trading facility should manipulate the market. As part of its significant price discovery contract on a net establish accountability procedures for investigation, the electronic trading facility basis. (For the purpose of netting uncleared monitoring traders’ overall positions and take should inquire about the trader’s rationale for transactions, long and short uncleared that information into account when holding a position in excess of the transactions are only offset if they are ascertaining whether an individual trader’s accountability levels. An acceptable conducted with the same counterparty.) If a overall position poses a threat to the market. accountability provision should provide the particular trader’s net volume of uncleared (3) Limitations on spot-month positions. electronic trading facility with the authority transactions exceeds the specified spot- Spot-month limits should be adopted for to order the trader not to further increase month volume accountability level, the significant price discovery contracts to positions. If a trader fails to comply with a electronic trading facility should conduct an minimize the susceptibility of the market to request for information about positions held, investigation to determine whether the manipulation or price distortions, including provides information that does not trader’s trading activity is warranted and is squeezes and corners or other abusive trading sufficiently justify the position, or continues not intended to manipulate the market. practices. to increase contract positions after a request (6) Account aggregation. An electronic (i) Contracts economically equivalent to an not to do so is issued by the facility, then the trading facility should have aggregation rules existing contract. An electronic trading accountability provision should enable the for significant price discovery contracts that facility that lists a significant price discovery electronic trading facility to require the apply to accounts under common control, contract that is economically-equivalent to trader to reduce positions. those with common ownership, i.e., where another significant price discovery contract (ii) Contracts economically equivalent to there is a ten percent or greater financial or to a contract traded on a designated an existing contract. When an electronic interest, and those traded according to an contract market or derivatives transaction trading facility lists a significant price express or implied agreement. Such execution facility should set the spot-month discovery contract that is economically aggregation rules should apply to cleared limit for its significant price discovery equivalent to another significant price transactions with respect to applicable contract at the same level as that specified for discovery contract or to a contract traded on speculative position limits, as well as to the economically-equivalent contract. a designated contract market or derivatives uncleared transactions with respect to (ii) Contracts that are not economically transaction execution facility, the electronic applicable spot-month volume accountability equivalent to an existing contract. There may trading facility should set the non-spot levels. An electronic trading facility will be not be an economically-equivalent significant individual month position accountability permitted to set more stringent aggregation price discovery contract or economically level and all-months-combined position policies. An electronic trading facility may equivalent contract traded on a designated accountability level for its significant price grant exemptions to its price discovery contract market or derivatives transaction discovery contract at the same levels, or contracts’ position limits for bona fide execution facility. In this case, the spot- lower, as those specified for the hedging (as defined in § 1.3(z) of this chapter) month speculative position limit should be economically-equivalent contract. and may grant exemptions for reduced risk established in the following manner. The (iii) Contracts that are not economically positions, such as spreads, straddles and spot-month limit for a physical delivery equivalent to an existing contract. For arbitrage positions. market should be based upon an analysis of significant price discovery contracts that are (7) Implementation deadlines. An deliverable supplies and the history of spot- not economically equivalent to an existing electronic trading facility with a significant month liquidations. The spot-month limit for contract, the trading facility shall adopt non- price discovery contract is required to a physical-delivery market is appropriately spot individual month and all-months- comply with Core Principle IV as set forth in set at no more than 25 percent of the combined position accountability levels that section 2(h)(7)C) of the Act within 90 estimated deliverable supply. In the case are no greater than 10 percent of the average calendar days of the date of the where a significant price discovery contract combined futures and delta-adjusted option Commission’s order determining that the has a cash settlement provision, the spot- month-end open interest for the most recent contract performs a significant price month limit should be set at a level that calendar year. For electronic trading facilities discovery function if such contract is the minimizes the potential for price that choose to adopt non-spot individual electronic trading facility’s first significant manipulation or distortion in the significant month and all-months-combined position price discovery contract, or within 15 days of price discovery contract itself; in related limits in lieu of position accountability levels the date of the Commission’s order if such futures and options contracts traded on a for their significant price discovery contracts, contract is not the electronic trading facility’s designated contract market or derivatives the limits should be set in the same manner first significant price discovery contract. For transaction execution facility; in other as the accountability levels. the purpose of applying limits on speculative significant price discovery contracts; in other (iv) Contracts economically equivalent to positions in newly-determined significant fungible agreements, contracts and an existing contract with position limits. If a price discovery contracts, the Commission transactions; and in the underlying significant price discovery contract is will permit a grace period following issuance commodity. economically equivalent to another of its order for traders with cleared positions (4) Position accountability for non-spot- significant price discovery contract or to a in such contracts to become compliant with month positions. The electronic trading contract traded on a designated contract applicable position limit rules. Traders who facility should establish for its significant market or derivatives transaction execution hold cleared positions on a net basis in the

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electronic trading facility’s significant price (9) Violation of Commission rules. A contracts, should provide to the public discovery contract must be at or below the violation of position limits for significant information regarding settlement prices, specified position limit level no later than 90 price discovery contracts that have been self- price range, volume, open interest, and other calendar days from the date of the electronic certified by an electronic trading facility also related market information for all applicable trading facility’s implementation of position a violation of section 4a(e) of the Act. contracts as determined by the Commission limit rules, unless a hedge exemption is CORE PRINCIPLE V OF SECTION on a fair, equitable and timely basis. granted by the electronic trading facility. 2(h)(7)(C)—EMERGENCY AUTHORITY—The Provision of information for any applicable This grace period applies to both initial and electronic trading facility shall adopt rules to contract can be through such means as subsequent price discovery contracts. provide for the exercise of emergency provision of the information to a financial Electronic trading facilities should notify authority, in consultation or cooperation with information service or by timely placement of traders of this requirement promptly upon the Commission, where necessary and the information on the electronic trading implementation of such rules. appropriate, including the authority to facility’s public Web site. (8) Enforcement provisions. The electronic liquidate open positions in significant price (b) Acceptable practices. Compliance with trading facility should have appropriate discovery contracts and to suspend or curtail § 16.01 of this chapter, which is mandatory, procedures in place to monitor its position trading in a significant price discovery is an acceptable practice and satisfies the limit and accountability provisions and to contract. requirements of under Core Principle VI. address violations. (a) Guidance. An electronic trading facility CORE PRINCIPLE VII OF SECTION (i) An electronic trading facility with on which significant price discovery 2(h)(7)(C)—COMPLIANCE WITH RULES. The significant price discovery contracts should contracts are traded should have clear electronic trading facility shall monitor and use an automated means of detecting traders’ procedures and guidelines for decision- enforce compliance with the rules of the violations of speculative limits or making regarding emergency intervention in electronic trading facility, including the exemptions, particularly if the significant the market, including procedures and terms and conditions of any contracts to be price discovery contracts have large numbers guidelines to avoid conflicts of interest while traded and any limitations on access to the of traders. An electronic trading facility carrying out such decision-making. An electronic trading facility. should monitor the continuing electronic trading facility on which (a) Guidance. appropriateness of approved exemptions by significant price discovery contracts are (1) An electronic trading facility on which periodically reviewing each trader’s basis for executed or traded should also have the significant price discovery contracts are exemption or requiring a reapplication. An authority to intervene as necessary to executed or traded should have appropriate automated system also should be used to maintain markets with fair and orderly arrangements and resources for effective determine whether a trader has exceeded trading as well as procedures for carrying out trade practice surveillance programs, with applicable non-spot individual month the intervention. Procedures and guidelines the authority to collect information and position accountability levels, all-months- should include notifying the Commission of documents on both a routine and non-routine combined position accountability levels, and the exercise of the electronic trading facility’s basis, including the examination of books spot-month volume accountability levels. regulatory emergency authority, explaining and records kept by its market participants. (ii) An electronic trading facility should how conflicts of interest are minimized, and The arrangements and resources should establish a program for effective enforcement documenting the electronic trading facility’s facilitate the direct supervision of the market of position limits for significant price decision-making process and the reasons for discovery contracts. Electronic trading using its emergency action authority. and the analysis of data collected. Trade facilities should use a large trader reporting Information on steps taken under such practice surveillance programs may be system to monitor and enforce daily procedures should be included in a carried out by the electronic trading facility compliance with position limit rules. The submission of a certified rule and any related itself or through delegation or contracting-out Commission notes that an electronic trading submissions for rule approval pursuant to to a third party. If the electronic trading facility may allow traders to periodically part 40 of this chapter, when carried out facility on which significant price discovery apply to the electronic trading facility for an pursuant to an electronic trading facility’s contracts are executed or traded delegates or exemption and, if appropriate, be granted a emergency authority. To address perceived contracts-out the trade practice surveillance position level higher than the applicable market threats, the electronic trading facility responsibility to a third party, such third speculative limit. The electronic trading on which significant price discovery party should have the capacity and authority facility should establish a program to monitor contracts are executed or traded should, to carry out such programs, and the approved exemptions from the limits. The among other things, be able to impose electronic trading facility should retain position levels granted under such hedge position limits in the delivery month, impose appropriate supervisory authority over the exemptions generally should be based upon or modify price limits, modify circuit third party. the trader’s commercial activity in related breakers, call for additional margin either (2) An electronic trading facility on which markets including, but not limited to, from market participants or clearing members significant price discovery contracts are positions held in related futures and options (for contracts that are cleared through a executed or traded should have contracts listed for trading on designated clearinghouse), order the liquidation or arrangements, resources and authority for contract markets, fungible agreements, transfer of open positions, order the fixing of effective rule enforcement. The Commission contracts and transactions, as determined by a settlement price, order a reduction in believes that this should include the either a registered or unregistered derivatives positions, extend or shorten the expiration authority and ability to discipline and limit clearing organization. Electronic trading date or the trading hours, suspend or curtail or suspend the activities of a market facilities may allow a brief grace period trading on the electronic trading facility, participant as well as the authority and where a qualifying trader may exceed order the transfer of contracts and the margin ability to terminate the activities of a market speculative limits or an existing exemption for such contracts from one market participant pursuant to clear and fair level pending the submission and approval of participant to another, or alter the delivery standards. The electronic trading facility can appropriate justification. An electronic terms or conditions or, if applicable, should satisfy this criterion for market participants trading facility should consider whether it provide for such actions through its by expelling or denying such person’s future wants to restrict exemptions during the last agreements with its third-party provider of access upon a determination that such a several days of trading in a delivery month. clearing services. person has violated the electronic trading Acceptable procedures for obtaining and (b) Acceptable practices. [Reserved] facility’s rules. granting exemptions include a requirement CORE PRINCIPLE VI OF SECTION (b) Acceptable practices. An acceptable that the electronic trading facility approve a 2(h)(7)(C)—DAILY PUBLICATION OF trade practice surveillance program generally specific maximum higher level. TRADING INFORMATION. The electronic would include: (iii) An acceptable speculative limit trading facility shall make public daily (1) Maintenance of data reflecting the program should have specific policies for information on price, trading volume, and details of each transaction executed on the taking regulatory action once a violation of a other trading data to the extent appropriate electronic trading facility; position limit or exemption is detected. The for significant price discovery contracts. (2) Electronic analysis of this data electronic trading facility policies should (a) Guidance. An electronic trading facility, routinely to detect potential trading consider appropriate actions. with respect to significant price discovery violations;

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(3) Appropriate and thorough investigative contract, may at any time request that the 37. In § 40.3, remove the term analysis of these and other potential trading Commission consider under the provisions of ‘‘registered entity’’ and add in its place violations brought to the electronic trading section 15(b) of the Act any of the electronic the term ‘‘designated contract market or facility’s attention; and trading facility’s rules, which may be trading registered derivatives transaction (4) Prompt and effective disciplinary action protocols or policies, operational rules, or for any violation that is found to have been terms or conditions of any significant price execution facility’’ in paragraphs (a)(1), committed. The Commission believes that discovery contract. The Commission intends (c)(1), (c)(2), and (e)(2). the latter element should include the to apply section 15(b) of the Act to its 38. In § 40.4, remove the term authority and ability to discipline and limit consideration of issues under this core ‘‘registered entity’’ and add in its place or suspend the activities of a market principle in a manner consistent with that the term ‘‘designated contract market’’ participant pursuant to clear and fair previously applied to contract markets. in paragraph (b)(9)(ii). standards that are available to market (b) Acceptable practices. [Reserved] 39. In § 40.6, revise paragraphs (a)(2), participants. See, e.g., 17 CFR part 8. (c)(3)(ii)(G), and (c)(3)(ii)(H) to read as CORE PRINCIPLE VIII OF SECTION PART 40—PROVISIONS COMMON TO follows: 2(h)(7)(C)—CONFLICTS OF INTEREST. The REGISTERED ENTITIES electronic trading facility on which § 40.6 Self-certification of rules. significant price discovery contracts are 33. The authority citation for part 40 (a) * * * executed or traded shall establish and is revised to read as follows: (2) The registered entity has filed its enforce rules to minimize conflicts of interest in the decision-making process of the Authority: 7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a, submission electronically in a format electronic trading facility and establish a 8 and 12a, as amended by Title XIII of the specified by the Secretary of the process for resolving such conflicts of Food, Conservation and Energy Act of 2008, Commission with the Secretary of the interest. Pub. L. No. 110–246, 122 Stat. 1624 (June 18, Commission at [email protected], (a) Guidance. 2008). the relevant branch chief at the regional (1) The means to address conflicts of 34. Revise the heading of part 40 as office having local jurisdiction over the interest in the decision-making of an set forth above. registered entity, and, for filings electronic trading facility on which 35. Amend § 40.1 as follows: submitted by a designated contract significant price discovery contracts are A. Remove the term ‘‘registered executed or traded should include methods market, registered derivatives to ascertain the presence of conflicts of entity’’ and add in its place the term transaction execution facility, or interest and to make decisions in the event ‘‘contract market, derivatives electronic trading facility on which of such a conflict. In addition, the transaction execution facility or significant price discovery contracts are Commission believes that the electronic derivatives clearing organization’’ in traded or executed, the Division of trading facility on which significant price paragraphs (b)(2), (b)(3), and (f)(2); and Market Oversight at discovery contracts are executed or traded B. Remove the term ‘‘contract market, [email protected], and the should provide for appropriate limitations on derivatives transaction execution Commission has received the the use or disclosure of material non-public facility or derivatives clearing submission at its headquarters by the information gained through the performance organization’’ and add in its place the of official duties by board members, open of business on the business day committee members and electronic trading term ‘‘registered entity’’ in paragraph preceding implementation of the rule; facility employees or gained through an (h). provided, however, rules or rule ownership interest in the electronic trading 36. Amend § 40.2 as follows: amendments implemented under facility or its parent organization(s). A. Remove the term ‘‘registered procedures of the governing board to (2) All electronic trading facilities on entity’’ and add in its place ‘‘contract respond to an emergency as defined in which significant price discovery contracts market, derivatives transaction § 40.1, shall, if practicable, be filed with are traded bear special responsibility to execution facility on which significant the Commission prior to the regulate effectively, impartially, and with price discovery contracts are traded or implementation or, if not practicable, be due consideration of the public interest, as executed’’ in paragraph (a); filed with the Commission at the earliest provided in section 3 of the Act. Under Core B. Remove the term ‘‘registered Principle VIII, they are also required to possible time after implementation, but minimize conflicts of interest in their entity’’ and add in its place ‘‘contract in no event more than twenty-four hours decision-making processes. To comply with market, derivatives transaction after implementation; and this core principle, electronic trading execution facility or derivatives clearing * * * * * facilities on which significant price discovery organization’’ in paragraphs (a)(1) and (c) * * * contracts are traded should be particularly (a)(3)(iv); and (3) * * * vigilant for such conflicts between and C. Revise paragraph (b) to read as (ii) * * * among any of their self-regulatory follows: (G) Option contract terms. For responsibilities, their commercial interests, registered entities that are in § 40.2 Listing and accepting products for and the several interests of their compliance with the daily reporting management, members, owners, market trading or clearing by certification. participants, other industry participants and requirements of § 16.01 of this chapter, * * * * * changes to option contract rules relating other constituencies. (b) A registered entity shall provide, (b) Acceptable practices. [Reserved] to the strike price listing procedures, CORE PRINCIPLE IX OF SECTION if requested by Commission staff, strike price intervals, and the listing of 2(h)(7)(C)—ANTITRUST CONSIDERATIONS. additional evidence, information or data strike prices on a discretionary basis. Unless necessary or appropriate to achieve relating to whether any contract meets, (H) Trading months. For registered the purposes of this Act, the electronic initially or on a continuing basis, any of entities that are in compliance with the trading facility, with respect to any the requirements of the Act or daily reporting requirements of § 16.01 significant price discovery contracts, shall Commission regulations or policies of this chapter, the initial listing of endeavor to avoid adopting any rules or thereunder which may be beneficial to taking any actions that result in any trading months which are within the the Commission in conducting a due currently established cycle of trading unreasonable restraints of trade or imposing diligence assessment of the product and any material anticompetitive burden on months. trading on the electronic trading facility. the entity’s compliance with these 40. In § 40.7, remove the term (a) Guidance. An electronic trading facility, requirements. ‘‘designated contract market, registered with respect to a significant price discovery * * * * * derivatives transaction execution

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facility or registered derivatives clearing facility’s governance structure, and any (DTEF), or electronic trading facility with a organization’’ and add in its place the other parts of the submissions not significant price discovery contract (ECM– term ‘‘registered entity’’ in paragraph (b) covered by a request for confidential SPDC). introductory text. treatment. 5. Type of Filing—Indicate whether the filing is a rule amendment or new product 41. In § 40.8, revise paragraph (a), * * * * * redesignate paragraph (b) as paragraph 42. Revise Appendix D to part 40 to and the applicable category under that heading. (c), and add new paragraph (b) to read read as follows: as follows: 6. Rule Numbers—For rule filings only, Appendix D to Part 40—Submission identify rule number(s) being adopted or § 40.8 Availability of public information. Cover Sheet and Instructions modified in the case of rule amendment (a) The following sections of all filings. A properly completed submission cover 7. Description—For rule or rule applications to become a designated sheet must accompany all rule submissions amendment filings only, enter a brief contract market, derivatives execution submitted electronically by a registered transaction facility or designated entity to the Secretary of the Commodity description of the new rule or rule clearing organization will be public: Futures Trading Commission, at amendment. This narrative should describe transmittal letter, proposed rules, the [email protected] in a format specified by the substance of the submission with enough applicant’s regulatory compliance chart, the Secretary of the Commission. Each specificity to characterize all essential documents establishing the applicant’s submission should include the following: aspects of the filing. 1. Identifier Code (optional)—If applicable, 8. Other Requirements—Comply with all legal status, documents setting forth the the exchange or clearing organization filing requirements for the underlying applicant’s governance structure, and Identifier Code at the top of the cover sheet. proposed rule or rule amendment. The filing any other part of the application not Such codes are commonly generated by the of the submission cover sheet does not covered by a request for confidential exchanges or clearing organizations to obviate the responsibility to comply with any treatment. provide an identifier that is unique to each applicable filing requirement (e.g., rules (b) The following submissions filing (e.g., NYMEX Submission 03–116). submitted for Commission approval under 2. Date—The date of the filing. required by § 36.3(c)(4) by an electronic § 40.5 must be accompanied by an 3. Organization—The name of the trading facility on which significant explanation of the purpose and effect of the price discovery contracts are traded or organization filing the submission (e.g., CBOT). proposed rule along with a description of any executed will be public: rulebook, the 4. Filing as a—Check the appropriate box substantive opposing views). facility’s regulatory compliance chart, for a designated contract market (DCM), A sample of the required submission cover documents establishing the facility’s derivatives clearing organization (DCO), sheet follows. legal status, documents setting forth the derivatives transaction execution facility BILLING CODE 6351–01–P

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Issued in Washington, DC, on December 2, 2008, by the Commission. David Stawick, Secretary of the Commission. [FR Doc. E8–28867 Filed 12–11–08; 8:45 am] BILLING CODE 6351–01–C

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Part IV

The President Proclamation 8328—Human Rights Day, Bill of Rights Day, And Human Rights Week, 2008

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Federal Register Presidential Documents Vol. 73, No. 240

Friday, December 12, 2008

Title 3— Proclamation 8328 of December 8, 2008

The President Human Rights Day, Bill of Rights Day, And Human Rights Week, 2008

By the President of the United States of America

A Proclamation The United States was founded on the principle that government must respect people’s rights to speak freely, worship as they choose, and pursue their dreams in liberty. As we remember the enduring importance of our Constitution’s Bill of Rights, our thoughts turn to those who have yet to secure these precious liberties. During Human Rights Day, Bill of Rights Day, and Human Rights Week, Americans celebrate the rights bestowed upon all by our Creator and reaffirm our deep commitment to helping those whose desire for liberty and justice is still dismissed and denied. In a free society, every person is treated with dignity and can rise as high as their talents and hard work will take them. Yet in countries like Belarus, Burma, Cuba, Iran, North Korea, Sudan, Syria, and Zimbabwe, fervent pleas for freedom are silenced by tyranny and oppression. So long as there are people who fight for liberty, the United States will stand with them and speak out for those who have no other voice. Freedom is the eternal birthright of all mankind, and during Human Rights Day, Bill of Rights Day, and Human Rights Week, we renew our commitment to lead the cause of human rights and pray for the day when the light of liberty will shine on all of humanity. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim December 10, 2008, as Human Rights Day; December 15, 2008, as Bill of Rights Day; and the week beginning December 10, 2008, as Human Rights Week. I call upon the people of the United States to mark these observances with appropriate ceremonies and activities.

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

[FR Doc. E8–29704 Filed 12–11–08; 11:15 am] Billing code 3195–W9–P

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Reader Aids Federal Register Vol. 73, No. 240 Friday, December 12, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER

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. 212...... 75540 Presidential Documents 3 CFR 214...... 75540 Executive orders and proclamations 741–6000 Proclamations: 245...... 75540 The United States Government Manual 741–6000 8324...... 73149 299...... 74605, 75540 8325...... 73151 Other Services 8326...... 74925 9 CFR Electronic and on-line services (voice) 741–6020 8327...... 75293 317...... 75564 741–6064 Privacy Act Compilation 8328...... 00000 381...... 75564 Public Laws Update Service (numbers, dates, etc.) 741–6043 Executive Orders: TTY for the deaf-and-hard-of-hearing 741–6086 12171 (amended by 10 CFR 13480) ...... 73991 Proposed Rules: 13480...... 73991 ELECTRONIC RESEARCH 430...... 74639 13481...... 75531 1004...... 74658 World Wide Web Administrative Orders: 1010...... 72748 Memorandums: Full text of the daily Federal Register, CFR and other publications Memorandum of July 11 CFR is located at: http://www.gpoaccess.gov/nara/index.html 10, 2002 111...... 72687 Federal Register information and research tools, including Public (superseded by Inspection List, indexes, and links to GPO Access are located at: Memorandum of 12 CFR http://www.archives.gov/federallregister December 9, 308...... 73153 2008) ...... 00000 E-mail 327...... 73158 Memorandum of 701...... 73392 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is December 8, 2006 702...... 72688 an open e-mail service that provides subscribers with a digital (superseded by EO 704...... 72688 form of the Federal Register Table of Contents. The digital form 13481) ...... 75531 of the Federal Register Table of Contents includes HTML and Memorandum of Proposed Rules: PDF links to the full text of each document. December 9, 2008 ...... 75531 226...... 74989 To join or leave, go to http://listserv.access.gpo.gov and select Memorandum of 13 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list December 9, 2008 ...... 75535 120...... 75498 (or change settings); then follow the instructions. 5 CFR 14 CFR PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: service that notifies subscribers of recently enacted laws. 315...... 74071 1...... 73768 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 316...... 74071 25...... 73997 and select Join or leave the list (or change settings); then follow 532...... 74374 39 ...... 73165, 73168, 73169, the instructions. 591...... 74858 73545, 73782, 73785, 75305, 75307, 75312, 75314, 75316, FEDREGTOC-L and PENS are mailing lists only. We cannot 9901...... 73606 75319 respond to specific inquiries. 6 CFR 91...... 73171 Reference questions. Send questions and comments about the Proposed Rules: 97...... 74927, 74928 Federal Register system to: [email protected] 5 ...... 74632, 74633, 74635, 101...... 73768 The Federal Register staff cannot interpret specific documents or 74637, 75372, 75373 121...... 73171 regulations. 125...... 73171 7 CFR 400...... 73768 401...... 73768 FEDERAL REGISTER PAGES AND DATE, DECEMBER 250...... 74605 301...... 75537 420...... 73768 72687–73148...... 1 761...... 74343 Proposed Rules: 73149–73544...... 2 762...... 74343 23...... 73195 39 ...... 73618, 74080, 74661, 73545–73760...... 3 764...... 74343 767...... 74343 74999, 75007, 75009 73761–73994...... 4 920...... 75537 71 ...... 74376, 74377, 74378, 73995–74342...... 5 946...... 74346 75011, 75013 74343–74604...... 8 984...... 73761, 73995 234...... 74586 74605–74926...... 9 1430...... 73764 259...... 74586 74927–75304...... 10 Proposed Rules: 399...... 74586 75305–75534...... 11 319...... 74073 75535–75926...... 12 930...... 74073 15 CFR 1205...... 72747 6...... 75321 1220...... 74078 744...... 73999 1487...... 73617 760...... 74348 770...... 73547 8 CFR 774...... 73547 103...... 75540 902...... 74003

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17 CFR 784...... 75814 60...... 72962, 73629 75631 Proposed Rules: 816...... 75814 61...... 73629 15...... 75888 817...... 75814 63 ...... 72756, 73629, 73631 48 CFR 16...... 75888 924...... 74943 80...... 74350 938...... 72717 158...... 75629 533...... 74613 17...... 75888 552...... 74613 18...... 75888 161...... 75629 31 CFR 180...... 73632 Proposed Rules: 19...... 75888 536...... 73199 21...... 75888 103...... 74010 260...... 73520 380...... 75589 261...... 73520 1804...... 73201 36...... 75888 1845...... 73202 40...... 75888 560...... 73788 264...... 73520 265...... 73520 1852...... 73201, 73202 18 CFR 32 CFR 268...... 73520 284...... 72692, 73494 199...... 74945 270...... 73520 49 CFR 706 ...... 72725, 73556, 73557, 273...... 73520 192...... 72737 19 CFR 75591 42 CFR 229...... 74070 351...... 74930 Proposed Rules: 232...... 74070 185...... 73896 440...... 73694 Proposed Rules: 383...... 73096 Proposed Rules: 360...... 75624 33 CFR 384...... 73096 84...... 75027, 75045 390...... 73096 20 CFR 117...... 74018, 74966 43 CFR 391...... 73096 Proposed Rules: Proposed Rules: 419...... 74031 Proposed Rules: 416...... 74663 117...... 72752 89...... 74098 429...... 74326 213...... 73078 34 CFR 423...... 75347 21 CFR 390...... 73129 2300...... 74039 99...... 74806 391...... 73129 101...... 74349 3800...... 73789 556...... 72714 300...... 73006 571...... 72758 558...... 72714, 75323 36 CFR 44 CFR 573...... 74101 575...... 72758 1300...... 73549 64...... 75609 2...... 74966 579...... 72758, 74101 1315...... 73549 67...... 73182 1316...... 73549 7...... 74606 212...... 74612 Proposed Rules: Proposed Rules: 67...... 74666, 74673 50 CFR Ch. I ...... 75625 37 CFR 14...... 74615 45 CFR 22 CFR 41...... 74972 17 ...... 73794, 74357, 75356 381...... 72726 301...... 74898 27...... 74966 Proposed Rules: 302...... 74898 229 ...... 73032, 75611, 75613 62...... 75015 38 CFR 303...... 74898 300...... 72737 24 CFR 53...... 73558 304...... 74898 404...... 73592 Proposed Rules: 622...... 73192 576...... 75324 39 CFR 301...... 74408 648...... 74373, 74631 582...... 75324 912...... 75339 302...... 74408 660...... 72739, 72740 583...... 75324 Proposed Rules: 303...... 74408 665...... 75615, 75622 25 CFR 3001...... 72754 305...... 74408 679...... 74987 308...... 74408 Proposed Rules: 293...... 74004 40 CFR 17 ...... 73211, 74123, 74427, 46 CFR 26 CFR Ch. I ...... 75592 74434, 74674, 74675, 75176 19...... 75340 Proposed Rules: 21...... 74445, 74447 1...... 75326, 75566 27...... 75340 71...... 74426 216...... 75631 301...... 73180 52 ...... 73562, 74019, 74027, 114...... 74426 226...... 74681 Proposed Rules: 74029, 75600 115...... 74426 622...... 73219 1...... 73197, 74380 63...... 72727 122...... 74426 635...... 75382 31...... 74082 80...... 74403 170...... 74426 665...... 75057 112...... 74236, 75346 171...... 74426 28 CFR 679 ...... 73222, 75059, 75659 180 ...... 73580, 73586, 74972, 172...... 74426 680...... 74129, 75661 26...... 75327 74978, 75601, 75605 174...... 74426 28...... 74932 220...... 74983 175...... 74426 73...... 73181 221...... 74983 176...... 74426 222...... 74983 178...... 74426 29 CFR 223...... 74983 179...... 74426 1910...... 75568 224...... 74983 185...... 74426 1915...... 75568 227...... 74983 1917...... 75246, 75568 228...... 74983 47 CFR 1918...... 75246, 75568 261...... 72912 51...... 72732 1926...... 75568 262...... 72912 54...... 72732 4022...... 72715 1045...... 73789 61...... 72732 4044...... 72716 1054...... 73789 69...... 72732 Proposed Rules: 1065...... 73789 73...... 73192, 74047 1926...... 73197 Proposed Rules: Proposed Rules: Ch. I ...... 73620 Ch. 1 ...... 75629 30 CFR 52 ...... 74096, 74097, 74098, 1...... 75376 780...... 75814 75626 73 ...... 73199, 75381, 75630,

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REMINDERS Ethics Compliance AGRICULTURE and Procurement The items in this list were Program and Disclosure DEPARTMENT Instrument Identification editorially compiled as an aid Requirements; published Rural Utilities Service Data Requirements; to Federal Register users. 11-12-08 Amending the Household comments due by 12-19- Inclusion or exclusion from NATIONAL AERONAUTICS Water Well System Grant 08; published 10-20-08 this list has no legal AND SPACE Program Regulations; [FR E8-24486] significance. ADMINISTRATION comments due by 12-18-08; EDUCATION DEPARTMENT Federal Acquisition Regulation: published 11-18-08 [FR E8- Rehabilitation Training; 26769] comments due by 12-15-08; RULES GOING INTO FAR Case 2007-006, Contractor Business Rural Development Grants; published 11-14-08 [FR E8- EFFECT DECEMBER 12, Ethics Compliance comments due by 12-15-08; 27136] 2008 Program and Disclosure published 10-15-08 [FR E8- ENERGY DEPARTMENT Requirements; published 23286] Energy Conservation Program: AGRICULTURE 11-12-08 COMMERCE DEPARTMENT Energy Conservation DEPARTMENT TREASURY DEPARTMENT National Oceanic and Standards for Certain Atmospheric Administration Agricultural Marketing Fiscal Service Consumer Products and Service Atlantic Highly Migratory for Certain Commercial Collateral Acceptability and Almonds Grown in California: Species: and Industrial Equipment; Valuation; published 12-12- Atlantic Swordfish Quotas; comments due by 12-16- Relaxation of Incoming 08 Quality Control comments due by 12-18- 08; published 10-17-08 Requirements; published TREASURY DEPARTMENT 08; published 11-18-08 [FR E8-23405] 11-12-08 Internal Revenue Service [FR E8-27337] ENVIRONMENTAL AGRICULTURE Creditor Continuity of Interest; Fisheries of the Caribbean, PROTECTION AGENCY DEPARTMENT published 12-12-08 Gulf of Mexico, and South Approval and Promulgation of Atlantic: Animal and Plant Health Air Quality Implementation Inspection Service RULES GOING INTO Amendments to the Spiny Plans: Lobster Fishery Citrus Canker; Movement of Virginia; Amendments to EFFECT DECEMBER 13, Management Plans for the Fruit from a Quarantined Ambient Air Quality 2008 Caribbean and Gulf of Area; Bag Markings; Standards for Particulate Mexico and South published 12-12-08 Matter; comments due by AGRICULTURE Atlantic; comments due by 12-17-08; published 11- AGRICULTURE DEPARTMENT 12-15-08; published 10- 17-08 [FR E8-27192] DEPARTMENT Agricultural Marketing 29-08 [FR E8-25823] California State Food Safety and Inspection Service Spiny Lobster (Panulirus Implementation Plan, Service Kiwifruit Grown in California; argus) Resources of the Ventura County Air Pollution Uniform Compliance Date for Decreased Assessment Caribbean, Gulf of Control District; Revisions; Food Labeling Regulations; Rate; published 12-12-08 Mexico, and South comments due by 12-19-08; published 12-12-08 Atlantic; Minimum published 11-19-08 [FR E8- DEFENSE DEPARTMENT Conservation Standards 27484] RULES GOING INTO for Imported Spiny Federal Acquisition Regulation: Environmental Statements; EFFECT DECEMBER 14, Lobster; comments due Notice of Intent: FAR Case 2007-006, by 12-15-08; published 2008 Coastal Nonpoint Pollution Contractor Business 10-15-08 [FR E8-24484] Ethics Compliance Control Programs; States COMMERCE DEPARTMENT Fisheries of the Northeastern and Territories— Program and Disclosure United States; Atlantic National Oceanic and Florida and South Requirements; published Mackerel, Squid, and Atmospheric Administration Carolina; Open for 11-12-08 Butterfish Fisheries: DEFENSE DEPARTMENT Taking of Marine Mammals comments until further Specifications and notice; published 2-11- Navy Department Incidental to Commercial Management Measures; 08 [FR 08-00596] Fishing Operations: comments due by 12-17- Certifications and Exemptions Federal Antidegradation Policy Atlantic Large Whale Take 08; published 11-17-08 Under the International Applicable to Waters of the Regulations for Preventing Reduction Plan; published [FR E8-27225] 12-12-08 United States within the Collisions at Sea (1972); Fisheries off West Coast Commonwealth of published 12-12-08 States; Pacific Coast Pennsylvania; removal; ENVIRONMENTAL COMMENTS DUE NEXT Groundfish Fishery: comments due by 12-15-08; PROTECTION AGENCY WEEK Pacific Whiting Allocation; published 11-14-08 [FR E8- Approval and Promulgation of comments due by 12-16- 27209] Implementation Plans: 08; published 12-1-08 [FR Removing the Federal AGRICULTURE E8-28468] San Joaquin Valley Air DEPARTMENT Antidegradation Policy Basin, CA; published 11- Magnuson-Stevens Act Applicable to Waters of the Rural Business-Cooperative Provisions; Scientific and 12-08 Service United States: Statistical Committees; Peer Commonwealth of Pesticide Tolerance: Rural Development Grants; Review; National Standard Pennsylvania; comments Etofenprox; published 12-12- comments due by 12-15-08; Guidelines; comments due due by 12-15-08; 08 published 10-15-08 [FR E8- by 12-17-08; published 9- published 12-30-99 [FR Pesticide Tolerances: 23286] 18-08 [FR E8-21837] E8-26951] Isoxaflutole; published 12- AGRICULTURE DEFENSE DEPARTMENT State Implementation Plans: 12-08 DEPARTMENT Defense Acquisition CA Revisions; Great Basin GENERAL SERVICES Rural Housing Service Regulations System Unified Air Pollution ADMINISTRATION Rural Development Grants; Defense Federal Acquisition Control District et al.; Federal Acquisition Regulation: comments due by 12-15-08; Regulation Supplement: comments due by 12-18- FAR Case 2007-006, published 10-15-08 [FR E8- Clarification of Central 08; published 11-18-08 Contractor Business 23286] Contractor Registration [FR E8-27301]

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FEDERAL District; comments due by Chub as Threatened or 600-2B16 (CL-601-3A, COMMUNICATIONS 12-15-08; published 11- Endangered with Critical CL-601-3R, and CL-604) COMMISSION 14-08 [FR E8-27007] Habitat; comments due by Airplanes; comments due Radio Broadcasting Services: Security Zone: 12-15-08; published 10- by 12-17-08; published Marquez, TX; comments West Basin, Port Canaveral 15-08 [FR E8-24467] 11-17-08 [FR E8-27162] due by 12-15-08; Harbor, Cape Canaveral, LABOR DEPARTMENT Bombardier Model CL 600 2B19 (Regional Jet Series published 11-10-08 [FR FL; comments due by 12- Occupational Safety and 100 & 440) Airplanes; E8-26741] 19-08; published 10-20-08 Health Administration [FR E8-24808] comments due by 12-15- Silverpeak, NV; comments Tree Care Operations; 08; published 11-14-08 due by 12-15-08; Security Zones; Escorted comments due by 12-17-08; [FR E8-26911] Vessels, Mobile, AL, published 11-7-08 [FR E8- published 9-18-08 [FR E8- Hawker Beechcraft Captain of the Port Zone; 26511] 21851] Corporation Model MU comments due by 12-15-08; Williston, SC; comments SECURITIES AND 300 10 Airplanes and published 11-13-08 [FR E8- due by 12-15-08; EXCHANGE COMMISSION Model 400 and 400A 26900] published 11-10-08 [FR Amendments to Regulation Series Airplanes; and E8-26747] HOMELAND SECURITY SHO; comments due by 12- Raytheon (Mitsubishi) FEDERAL DEPOSIT DEPARTMENT 16-08; published 10-17-08 Model MU-300 Airplanes; INSURANCE CORPORATION Federal Emergency [FR E8-24785] comments due by 12-15- 08; published 10-31-08 Deposit Insurance Regulations: Management Agency SMALL BUSINESS [FR E8-26000] Temporary Increase in Agency Information Collection ADMINISTRATION McDonnell Douglas Model Standard Coverage Activities; Proposals, Business Loan Program 717-200 Airplanes; Amount; Mortgage Submissions, and Approvals; Regulations: comments due by 12-15- Servicing Accounts; comments due by 12-15-08; Incorporation of London 08; published 10-31-08 comments due by 12-16- published 10-15-08 [FR E8- Interbank Offered Rate [FR E8-25991] 08; published 10-17-08 24475] Base Rate and Secondary Rolls-Royce plc RB211 [FR E8-24626] Proposed Flood Elevation Market Pool Interest Rate Determinations; comments Trent 553-61, 553A2-61, FEDERAL HOUSING Changes; comments due 556-61, 556A2-61, 556B- FINANCE BOARD due by 12-16-08; published by 12-15-08; published 9-17-08 [FR E8-21687] 61, 556B2-61, 560-61, Affordable Housing Program 11-13-08 [FR E8-26999] and 560A2-61 Turbofan Amendments HOMELAND SECURITY TRANSPORTATION Engines; comments due DEPARTMENT Federal Home Loan Bank DEPARTMENT by 12-15-08; published Mortgage Refinancing Privacy Act of 1974; Federal Aviation 11-14-08 [FR E8-26200] Authority; comments due Implementation of Administration Proposed Establishment of Exemptions; comments due Colored Federal Airway; by 12-16-08; published Airworthiness Directives: 10-17-08 [FR E8-24320] by 12-15-08; published 11- Alaska; comments due by 14-08 [FR E8-27093] Airbus Model A310 Series 12-15-08; published 10-30- FEDERAL HOUSING Airplanes; comments due HOUSING AND URBAN 08 [FR E8-25940] FINANCING AGENCY by 12-15-08; published DEVELOPMENT Proposed Establishment of Affordable Housing Program 11-13-08 [FR E8-26914] DEPARTMENT Special Air Traffic Rule, in Amendments Airbus Model A318, A319, Agency Information Collection the Vicinity of Luke AFB, Federal Home Loan Bank A320, and A321 Series Activities; Proposals, AZ; Correction; comments Mortgage Refinancing Airplanes; comments due Submissions, and Approvals: due by 12-15-08; published Authority; comments due by 12-17-08; published 10-15-08 [FR E8-24373] by 12-16-08; published Inspector Candidate 11-17-08 [FR E8-27167] Assessment TREASURY DEPARTMENT 10-17-08 [FR E8-24320] BAE Systems (Operations) Questionnaire; comments Foreign Assets Control Limited (Jetstream) Model HEALTH AND HUMAN due by 12-15-08; Office 4101 Airplanes; comments SERVICES DEPARTMENT published 10-15-08 [FR Licensing Procedures for due by 12-17-08; Food and Drug E8-24370] Exportation of Agricultural Administration published 11-17-08 [FR Commodities, Medicine, and Civil Money Penalties; Certain E8-27161] Medical Devices to Sudan Applications for Food and Prohibited Conduct; Boeing Model 727 and Iran; comments due by Drug Administration comments due by 12-16-08; Airplanes; comments due 12-17-08; published 11-17- Approval to Market a New published 10-17-08 [FR E8- by 12-15-08; published 08 [FR E8-27242] Drug; Postmarketing 24574] 10-29-08 [FR E8-25758] TREASURY DEPARTMENT Reports: Public Housing Operating Boeing Model 737-600, Alcohol and Tobacco Tax Reporting Information About Fund Program; Increased -700, -700C, -800, and and Trade Bureau Authorized Generic Drugs; Terms of Energy -900 Series Airplanes; Proposed Expansions of the Companion Document to Performance Contracts; comments due by 12-15- Russian River Valley and Direct Final Rule; comments due by 12-15-08; 08; published 10-30-08 Northern Sonoma Viticultural comments due by 12-15- published 10-16-08 [FR E8- [FR E8-25903] Areas; Reopening of 08; published 9-29-08 [FR 24573] Boeing Model 737-600, 700, Comment Period; comments E8-22829] State Community Development 700C, 800, and 900 due by 12-19-08; published Reporting Information About Block Grant Program; Series Airplanes; 10-29-08 [FR E8-25748] Authorized Generic Drugs; Administrative Rule comments due by 12-15- VETERANS AFFAIRS comments due by 12-15- Changes; comments due by 08; published 10-31-08 DEPARTMENT 08; published 9-29-08 [FR 12-16-08; published 10-17- [FR E8-25990] Special Ratings; comments E8-22833] 08 [FR E8-24572] Boeing Model 767 due by 12-16-08; published HOMELAND SECURITY INTERIOR DEPARTMENT Airplanes; comments due 10-17-08 [FR E8-23825] DEPARTMENT Fish and Wildlife Service by 12-16-08; published Coast Guard Endangered and Threatened 11-21-08 [FR E8-27519] LIST OF PUBLIC LAWS Safety Zones: Wildlife and Plants: Bombardier Model CL-600- Fireworks Displays within 90-Day Finding on a 1A11 (CL-600), CL-600- This is a continuing list of the Fifth Coast Guard Petition to List the Least 2A12 (CL-601), and CL- public bills from the current

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session of Congress which text will also be made parcels of Federal land for the listserv.gsa.gov/archives/ have become Federal laws. It available on the Internet from benefit of certain Indian publaws-l.html may be used in conjunction GPO Access at http:// Pueblos in the State of New with ‘‘P L U S’’ (Public Laws www.gpoaccess.gov/plaws/ Mexico, and for other Note: This service is strictly Update Service) on 202–741– index.html. Some laws may purposes. (Dec. 2, 2008; 122 for E-mail notification of new 6043. This list is also not yet be available. Stat. 5027) laws. The text of laws is not available online at http:// Last List December 2, 2008 www.archives.gov/federal- H.R. 2040/P.L. 110–451 available through this service. register/laws.html. Civil Rights Act of 1964 PENS cannot respond to Commemorative Coin Act specific inquiries sent to this The text of laws is not (Dec. 2, 2008; 122 Stat. 5021) Public Laws Electronic published in the Federal address. S. 602/P.L. 110–452 Notification Service Register but may be ordered (PENS) in ‘‘slip law’’ (individual Child Safe Viewing Act of pamphlet) form from the 2007 (Dec. 2, 2008; 122 Stat. Superintendent of Documents, 5025) PENS is a free electronic mail U.S. Government Printing S. 1193/P.L. 110–453 notification service of newly Office, Washington, DC 20402 To direct the Secretary of the enacted public laws. To (phone, 202–512–1808). The Interior to take into trust 2 subscribe, go to http://

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