10–30–08 Thursday Vol. 73 No. 211 Oct. 30, 2008

Pages 64515–64856

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Contents Federal Register Vol. 73, No. 211

Thursday, October 30, 2008

Agriculture Department Education Department See Cooperative State Research, Education, and Extension NOTICES Service Agency Information Collection Activities; Proposals, See Federal Crop Insurance Corporation Submissions, and Approvals, 64606 Meetings: Architectural and Transportation Barriers Compliance National Assessment Governing Board, 64606–64608 Board Energy Department NOTICES See Federal Energy Regulatory Commission Meetings: Architectural And Transportation Barriers Compliance Environmental Protection Agency Board, 64595–64596 RULES Approval and Promulgation of Air Quality Implementation Census Bureau Plans: NOTICES Virginia; Emission Reductions from Large Stationary American Indian and Alaska Native Policy Statement, Internal Combustion Engines and Large Cement 64597–64600 Kilns, 64551–64553 Centers for Disease Control and Prevention West Virginia; Revised Motor Vehicle Emission Budgets RULES for the Parkersburg 8-Hour Ozone Maintenance Area, Possession, Use, and Transfer of Select Agents and Toxins; 64548–64551 Correction, 64553–64554 Revisions to the Definition of Solid Waste, 64668–64788 NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Approval and Promulgation of Air Quality Implementation Submissions, and Approvals, 64617–64618 Plans: West Virginia; Revised Motor Vehicle Emission Budgets Centers for Medicare & Medicaid Services for the Parkersburg 8-Hour Ozone Maintenance Area, NOTICES 64576 Meetings: NOTICES Medicare Program; Listening Session on Hospital- Approval of a Petition for Exemption from Hazardous Acquired Conditions, etc., 64618–64619 Waste Disposal Injection Restrictions to AK Steel Corp., Middletown, OH, 64614–64615 Children and Families Administration Child-Specific Exposure Factors Handbook, 64615 NOTICES Clean Air Act Operating Permit Program; Decision on Allotment Percentages to States for Child Welfare Services Reconsideration of Petition to Object to Title V Permit State Grants, 64619–64620 for Reliant Portland Generating Station: Upper Mount Bethel Township, Northampton County, Civil Rights Commission PA, 64615–64616 NOTICES Electronic Report on the Environment, 64616 Meetings; Sunshine Act, 64596 Executive Office of the President Commerce Department See Trade Representative, Office of United States See Census Bureau See Foreign-Trade Zones Board Federal Aviation Administration See National Oceanic and Atmospheric Administration RULES See Patent and Trademark Office Reservation System for Unscheduled Arrivals at Chicago’s NOTICES O’Hare International Airport, 64515–64517 Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 64596–64597 Airworthiness Directives: Cooperative State Research, Education, and Extension Boeing Model 737-600, -700, -700C, -800, and -900 Series Service Airplanes, 64568–64571 Fokker F.28 Mark 0070 and 0100 Airplanes, 64571–64573 NOTICES Turbomeca Arriel 2B and 2B1 Turboshaft Engines, Agency Information Collection Activities; Proposals, 64566–64568 Submissions, and Approvals, 64594–64595 Proposed Establishment of Colored Federal Airway; Alaska, 64573–64575 Defense Department NOTICES See Navy Department Meetings: RTCA Government /Industry Air Traffic Management Drug Enforcement Administration Advisory Committee, 64658 NOTICES Operating Limitations for Unscheduled Operations at John Agency Information Collection Activities; Proposals, F. Kennedy International Airport and Newark Liberty Submissions, and Approvals, 64638–64639 International Airport, 64658–64660

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Federal Communications Commission Foreign-Trade Zones Board RULES NOTICES An Inquiry Into the Commission’s Policies and Rules Applications: Regarding AM Radio Service Directional Antenna Foreign-Trade Zone 38 - Spartunburg, South Carolina, Performance Verification, 64558–64562 64600 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention General Services Administration Act (2005), 64556–64558 NOTICES Agency Information Collection Activities; Proposals, Federal Crop Insurance Corporation Submissions, and Approvals, 64616–64617 NOTICES Agency Information Collection Activities; Proposals, Health and Human Services Department Submissions, and Approvals, 64595 See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration Federal Emergency Management Agency See Substance Abuse and Mental Health Services RULES Administration Suspension of Community Eligibility, 64554–64556 NOTICES PROPOSED RULES Meetings: Proposed Flood Elevation Determinations, 64576–64593 National Committee on Vital and Health Statistics, 64617 NOTICES Disaster and Related Determinations: Kentucky, 64623–64624 Homeland Security Department Oklahoma, 64624 See Federal Emergency Management Agency Disaster Declarations: See Transportation Security Administration Florida, 64624–64625 See U.S. Customs and Border Protection Illinois, 64625 Indiana, 64625 Indian Affairs Bureau Kentucky, 64625–64626 NOTICES Louisiana, 64626 Rate Adjustments for Indian Irrigation Projects, 64629– Mississippi, 64626 64635 Puerto Rico, 64626–64627 Texas, 64627 Interior Department See Fish and Wildlife Service Federal Energy Regulatory Commission See Indian Affairs Bureau See Land Management Bureau RULES See Minerals Management Service Ex Parte Contacts and Separation of Functions, 64518 NOTICES Applications: Internal Revenue Service Natural Gas Pipeline Company of America LLC, 64608– NOTICES 64609 Agency Information Collection Activities; Proposals, Blanket Authorizations: Submissions, and Approvals, 64663–64664 Wheelabrator Bridgeport, L.P., 64609 Meetings: Combined Notice of Filings, 64609–64612 Advisory Council to the Internal Revenue Service, Filings: 64664–64665 Ausra CA I, LLC, 64612 Records Governing Off-the Record Communications, 64612– International Trade Commission 64613 NOTICES Technical Conference Regarding Electronic Tariff Filing, Investigations: 64613–64614 Nitrile Gloves and Nitrile Rubber Gloves, 64636–64638

Federal Highway Administration Justice Department NOTICES See Drug Enforcement Administration Environmental Impact Statements; Availability, etc.: NOTICES San Bernardino, CA, 64660 Lodging of Proposed Settlement Agreement, 64638 Meetings: Concerning Heavy Duty Diesel Engine Consent Decrees, Federal Railroad Administration 64638 NOTICES Petition for Waiver of Compliance: Labor Department CSX Transportation, 64661 NOTICES Agency Information Collection Activities; Proposals, Fish and Wildlife Service Submissions, and Approvals, 64639–64640 NOTICES Receipt of Applications for Endangered Species Permits, Land Management Bureau 64627–64628 NOTICES Receipt of Applications for Permit, 64628–64629 Alaska Native Claims Selection, 64635–64636

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Minerals Management Service Substance Abuse and Mental Health Services RULES Administration Revisions to Subpart A - General; Subpart I - Platforms and Structures; and Subpart J - Pipelines and Pipeline NOTICES Rights-of-Way, 64541–64548 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 64620–64623 National Oceanic and Atmospheric Administration RULES Surface Transportation Board Fisheries of the Caribbean, Gulf of Mexico, and South NOTICES Atlantic; Reef Fish Fishery of the Gulf of Mexico: Agency Information Collection Activities; Proposals, Referendum Procedures for a Potential Gulf of Mexico Submissions, and Approvals, 64662 Grouper and Tilefish Individual Fishing Quota Program, 64562–64565 Trade Representative, Office of United States NOTICES NOTICES Meetings: Revised Fiscal Year 2008 Tariff-Rate Quota Allocations for Fisheries of the South Atlantic; Southeastern Data, Refined Sugar; Re-allocation of Refined Sugar Assessment, and Review (SEDAR); Atlantic Red Previously Assigned to Mexico, 64640 Drum, 64601 Transportation Department Navy Department See Federal Aviation Administration NOTICES See Federal Highway Administration Environmental Impact Statements; Intent, etc.: See Federal Railroad Administration Marine Corps Air Ground Combat Center, Twentynine See Pipeline and Hazardous Materials Safety Palms, CA, 64604–64606 Administration See Surface Transportation Board Office of United States Trade Representative See Trade Representative, Office of United States Transportation Security Administration PROPOSED RULES Patent and Trademark Office Large Aircraft Security Program, Other Aircraft Operator NOTICES Security Program, and Airport Operator Security Agency Information Collection Activities; Proposals, Program, 64790–64855 Submissions, and Approvals, 64601–64604 Treasury Department Pipeline and Hazardous Materials Safety Administration See Internal Revenue Service PROPOSED RULES NOTICES Uniform Rules of Origin for Imported Merchandise, 64575– Agency Information Collection Activities; Proposals, 64576 Submissions, and Approvals, 64661–64662 NOTICES Agency Information Collection Activities; Proposals, Securities and Exchange Commission Submissions, and Approvals, 64662–64663 NOTICES Agency Information Collection Activities; Proposals, U.S. Customs and Border Protection Submissions, and Approvals, 64640–64642 RULES Self-Regulatory Organizations; Proposed Rule Changes: Technical Corrections Relating to the Rules of Origin for New York Stock Exchange LLC, 64642–64644 Goods Imported Under the Nafta and for Textile and NYSE Alternext US LLC, 64645–64647 Apparel Products, 64518–64539 NYSE Arca, Inc., 64647–64651 PROPOSED RULES Uniform Rules of Origin for Imported Merchandise, 64575– Social Security Administration 64576 NOTICES Cost-of-Living Increase and Other Determinations (for 2009), 64651–64657 Separate Parts In This Issue

State Department Part II RULES Environmental Protection Agency, 64668–64788 Procedures for children abducted to the United States, 64539–64540 Part III NOTICES United States-Egypt Science and Technology Joint Board; Homeland Security Department, Transportation Security Public Announcement of a Science and Technology Administration, 64790–64855 Program: Competitive Grants to Support Junior Scientist Development Visits by U.S. and Egyptian Scientists, Reader Aids 64657–64658 Consult the Reader Aids section at the end of this issue for Science and Technology Program for Competitive Grants phone numbers, online resources, finding aids, reminders, etc., 64657 and notice of recently enacted public laws.

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To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

14 CFR 93...... 64515 Proposed Rules: 39 (3 documents) ...... 64566, 64568, 64571 71...... 64573 18 CFR 385...... 64518 19 CFR 102...... 64518 Proposed Rules: 4...... 64575 7...... 64575 10...... 64575 102...... 64575 134...... 64575 177...... 64575 22 CFR 94...... 64539 30 CFR 250...... 64541 40 CFR 52 (2 documents) ...... 64548, 64551 260...... 64668 261...... 64668 270...... 64668 Proposed Rules: 52...... 64576 42 CFR 73...... 64553 44 CFR 64...... 64554 Proposed Rules: 67...... 64576 47 CFR 64...... 64556 73...... 64558 49 CFR Proposed Rules: 1515...... 64790 1520...... 64790 1522...... 64790 1540...... 64790 1542...... 64790 1544...... 64790 1550...... 64790 50 CFR 622...... 64562

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Rules and Regulations Federal Register Vol. 73, No. 211

Thursday, October 30, 2008

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: from disrupting or adversely affecting contains regulatory documents having general the air traffic system for which the FAA Availability of Rulemaking Documents applicability and legal effect, most of which is responsible. Inordinate delays can are keyed to and codified in the Code of You may obtain an electronic copy have a crippling effect on other parts of Federal Regulations, which is published under using the Internet by: the system, causing significant losses in 50 titles pursuant to 44 U.S.C. 1510. (1) Searching the Federal time and money for individuals and The Code of Federal Regulations is sold by eRulemaking Portal (http:// businesses, including the air carriers the Superintendent of Documents. Prices of www.regulations.gov); and other operators at O’Hare and new books are listed in the first FEDERAL (2) Visiting the FAA’s Regulations and beyond. This rule facilitates the REGISTER issue of each week. Policies Web page at http:// Agency’s exercise of its authority to www.faa.gov/regulations_policies/; or manage the safe and efficient use of the (3) Accessing the Government navigable airspace. DEPARTMENT OF TRANSPORTATION Printing Office’s Web page at http:// www.gpoaccess.gov/fr/index.html. Background Federal Aviation Administration You also may obtain a copy by Since November 2003, O’Hare has sending a request to the Federal suffered an inordinate and unacceptable 14 CFR Part 93 Aviation Administration, Office of number of delays resulting from over- Rulemaking, ARM–1, 800 Independence [Docket No. FAA–2005–19411; Amdt. No. scheduling at the airport, which also has 93–89] Avenue, SW., Washington, DC 20591, or had a crippling effect on the entire by calling (202) 267–9680. Make sure to National Airspace System. In August RIN 2120–AI47 identify the amendment number or 2004, the FAA intervened by ordering a docket number of this rulemaking. limit on the number of scheduled Reservation System for Unscheduled arrivals at the airport during the peak Arrivals at Chicago’s O’Hare Small Business Regulatory Enforcement operating hours of 7 a.m. through 8:59 International Airport Fairness Act p.m., Central Time, effective November AGENCY: Federal Aviation The Small Business Regulatory 1, 2004, so that the system could return Administration (FAA), DOT. Enforcement Fairness Act (SBREFA) of to a reasonably balanced level of 1996 requires the FAA to comply with 3 ACTION: operations and delay. Final rule; Extension of small entity requests for information or expiration date. On October 20, 2004, the FAA advice about compliance with statutes published a notice of proposed SUMMARY: This action extends the and regulations within its jurisdiction. rulemaking (NPRM) seeking public expiration date of Special Federal Therefore, any small entity that has a comments on a proposed reservation Aviation Regulation (SFAR) No. 105 question regarding this document may system for unscheduled arrivals at through October 31, 2010. This action contact its local FAA official, or the O’Hare (69 FR 61708), effective maintains the reservation system person listed under FOR FURTHER November 1, 2004. While this established for unscheduled arrivals at INFORMATION CONTACT. You can find out rulemaking was pending, the FAA Chicago O’Hare International Airport more about SBREFA on the Internet at implemented a corresponding voluntary (O’Hare) following the expiration of http://www/faa/gov/ reservation program for unscheduled _ limitations imposed on scheduled regulations policies/rulemaking/ arrivals using the general procedures _ operations at the airport. This action is sbre act. followed during the Special Traffic necessary to reduce congestion and Authority Management Programs and the High delays at the airport and is consistent Density Rule. with O’Hare’s status as a Schedules The U.S. Government has exclusive On July 8, 2005, the FAA published sovereignty over the airspace of the SFAR No. 105, ‘‘Reservation System for Facilitated Airport (Level 2) under the 1 International Air Transport Association United States. Under this broad Unscheduled Arrivals at Chicago’s (IATA) Worldwide Scheduling authority, Congress has delegated to the O’Hare International Airport.’’ 4 As Guidelines (WSG). Administrator extensive and plenary stated in SFAR No. 105, the benefits authority to ensure the safety of aircraft DATES: This final rule is effective on achieved by the FAA’s August 18 Order and the efficient use of the nation’s would dissipate if certain operations at October 31, 2008, and SFAR No. 105 navigable airspace. In this regard, the published at 70 FR 39610 (July 8, 2005), the airport remained capped but other Administrator is required to assign by operations were permitted to grow. as amended in this rule, shall remain in regulation or order use of the airspace effect until October 31, 2010. SFAR No. 105 maintained the historical to ensure its efficient use.2 level of unscheduled operations at FOR FURTHER INFORMATION CONTACT: The FAA’s broad statutory authority O’Hare and supported other agency Gerry Shakley, System Operations to manage the efficient use of airspace actions at O’Hare that address Services, Air Traffic Organization; encompasses management of the congestion and delay until additional telephone: (202) 267–9424; e-mail: nationwide system of air commerce and capacity exists at the airport. [email protected]. For legal air traffic control. To ensure the efficient In SFAR No. 105, the FAA discussed questions concerning this rule, contact: use of the airspace, the FAA must take that it may be necessary to extend this Robert Hawks, Regulations Division, steps to prevent congestion at an airport Office of the Chief Counsel; telephone: 3 Operating Limitations at Chicago International (202) 267–7143; fax: (202) 267–7971; 1 49 U.S.C. 40103(a). Airport, Docket No. FAA–2004–16944. e-mail: [email protected]. 2 49 U.S.C. 40103(b)(1). 4 70 FR 39610.

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rule limiting unscheduled arrivals at delay, the FAA extends the limits the new information collection O’Hare to coincide with a final rule imposed by SFAR No. 105 until October requirements(s) in this final rule to the addressing scheduled arrivals, if 31, 2010. Office of Management and Budget adopted, or with an extension of the Extending the limits imposed by (OMB) for its review. An agency may August 2004 Order. The NPRM SFAR No. 105 should not unduly not collect or sponsor the collection of addressing scheduled arrivals at O’Hare burden unscheduled operations at information, nor may it impose an was published on March 25, 2005 (70 O’Hare. The reservation system information collection requirement, FR 15520). currently in place provides reservations unless it displays a currently valid OMB On November 2, 2005, the FAA in excess of the number of unscheduled control number. OMB approved the extended the expiration date on SFAR flights arriving at O’Hare. From May collection of this information and No. 105 until March 31, 2006.5 On 2002 to September 2008, there were on assigned OMB Control Number 2120– March 31, 2006, the FAA extended the average 25 daily general aviation 0694. unscheduled operations, which expiration date on SFAR No. 105 Executive Order 12866 and DOT 6 constitute the majority of unscheduled through October 28, 2006, to maintain Regulatory Policies and Procedures the current operating environment at the operations. This data reflects a decline airport while considering comments to from 2006 (33 operations in same Changes to Federal regulations must the proposed rule for scheduled period) and 2007 (29 operations in the undergo several economic analyses. arrivals.7 same period). Under the current rule, 64 First, Executive Order 12866 directs that On August 29, 2006, the FAA daily arrival reservations are available each Federal agency shall propose or published the ‘‘Congestion and Delay for allocation. The data also reflects adopt a regulation only upon a reasoned Reduction at Chicago O’Hare limited demand for public charter determination that the benefits of the International Airport’’ final rule.8 That flights, which are permitted to obtain intended regulation justify its costs. final rule codified the limit on reservations up to six months in Second, the Regulatory Flexibility Act scheduled arrivals initially imposed advance of operations. Although the of 1980 (Pub. L. 96–354) requires under the FAA’s August 2004 Order and demand for unscheduled operations agencies to analyze the economic expires on October 31, 2008. On does not exceed available capacity, the impact of regulatory changes on small November 1, 2006, the FAA extended reservation system spreads the entities. Third, the Trade Agreements the expiration date on SFAR No. 105 unscheduled operations throughout the Act (Pub. L. 96–39) prohibits agencies through October 31, 2008, to coincide day to allow the FAA to manage from setting standards that create with the sunset date of the ‘‘Congestion congestion and delay, and it provides unnecessary obstacles to the foreign and Delay Reduction at Chicago O’Hare some advance information about the commerce of the United States. In International Airport’’ final rule.9 anticipated number of unscheduled developing U.S. standards, the Trade The ongoing implementation of the operations. Act requires agencies to consider O’Hare Modernization Program should Because of the current demand levels, international standards and, where result in increased capacity at the the FAA does not believe that an appropriate, that they be the basis of airport. On October 31, 2008, the increase in the number of hourly U.S. standards. Fourth, the Unfunded ‘‘Congestion and Delay Reduction at reservations exclusively set aside for Mandates Reform Act of 1995 (Pub. L. Chicago O’Hare International Airport’’ unscheduled arrivals is justified. 104–4) requires agencies to prepare a final rule will sunset, and O’Hare will Additionally, the rule allows the written assessment of the costs, benefits, be designated a Schedules Facilitated approval of additional reservations that and other effects of proposed or final rules that include a Federal mandate Airport (Level 2) under the IATA WSG. do not result in significant delay or likely to result in the expenditure by Under the Level 2 guidelines, airlines congestion or when there is additional State, local, or tribal governments, in the conducting scheduled operations at capacity temporarily available, which aggregate, or by the private sector, of O’Hare must submit their proposed should provide added flexibility for $100 million or more annually (adjusted schedules in advance on a semiannual unscheduled operations. for inflation with base year of 1995). basis and cooperate through schedule Therefore, the FAA finds that notice This portion of the preamble adjustments to reduce congestion and and comment procedures under 5 U.S.C. summarizes the FAA’s analysis of the delays. Through this voluntary system section 553(b) are impracticable and economic impacts of this final rule. of schedule adjustments, O’Hare should contrary to the public interest. The FAA further finds that good cause exists to Department of Transportation Order be able to utilize the increased capacity DOT 2100.5 prescribes policies and without restrictions on arrivals and make this rule effective in less than 30 days. procedures for simplification, analysis, departures. and review of regulations. If the Under the Level 2 guidelines, International Compatibility expected cost impact is so minimal that scheduled operations are managed in In keeping with U.S. obligations a proposed or final rule does not advance to reduce the risks of under the Convention on International warrant a full evaluation, this order congestion and delay. Because of the Civil Aviation, it is FAA policy to permits that a statement to that effect nature of unscheduled operations, it is comply with International Civil and the basis for it be included in the impossible to effectively manage Aviation Organization (ICAO) Standards preamble if a full regulatory evaluation capacity significantly in advance of the and Recommended Practices to the of the cost and benefits is not prepared. operations. Consequently, to coincide maximum extent practicable. The FAA Such a determination has been made for with the Level 2 status of O’Hare, and determined that there are no ICAO this final rule. The reasoning for this to reduce the risks of congestion and Standards and Recommended Practices determination follows: In the preamble of SFAR No. 105, the 5 that correspond to this regulation. 70 FR 66253. FAA stated that it might consider 6 The limits on unscheduled arrivals do not apply Paperwork Reduction Act on Saturdays. extending SFAR 105 for a time period 7 71 FR 16217. As required by the Paperwork that would coincide with a final rule 8 71 FR 51382. Reduction Act of 1995 (44 U.S.C. limiting scheduled operations. The FAA 9 71 FR 64111. 3507(d)), the FAA submitted a copy of will continue to extend this SFAR

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through October 31, 2010. The rule have a significant economic impact on Regulations That Significantly Affect requires maintaining the current level of a substantial number of small entities. Energy Supply, Distribution, or Use operations at Chicago O’Hare to ensure International Trade Impact Assessment consistency with O’Hare’s Level 2 The FAA has analyzed this final rule status. In the final economic assessment The Trade Agreements Act of 1979 under Executive Order 13211, Actions of SFAR No. 105, the FAA found that (Pub. L. 96–39) prohibits Federal Concerning Regulations that the rule provided system delay benefits agencies from establishing any Significantly Affect Energy Supply, at minimal cost. Similarly, the FAA standards or engaging in related Distribution, or Use (66 FR 28355, May finds that this extension is cost activities that create unnecessary 18, 2001). The FAA has determined that beneficial by continuing to provide obstacles to the foreign commerce of the it is not a ‘‘significant energy action’’ system delay benefits at minimal cost. United States. Legitimate domestic under the executive order because it is FAA has, therefore, determined that objectives, such as safety, are not not a ‘‘significant regulatory action’’ this final rule is not a ‘‘significant considered unnecessary obstacles. The under Executive Order 12866, and it is regulatory action’’ as defined in section statute also requires consideration of not likely to have a significant adverse 3(f) of Executive Order 12866, and is not international standards and, where effect on the supply, distribution, or use ‘‘significant’’ as defined in DOT’s appropriate, that they be the basis for of energy. Regulatory Policies and Procedures. U.S. standards. The FAA has assessed Regulatory Flexibility Determination the potential effect of the extension of List of Subjects for Part 93 this final rule and has determined that The Regulatory Flexibility Act of 1980 Air traffic control, Airports, it not have an effect on foreign (Pub. L. 96–354) (RFA) establishes ‘‘as a Navigation (air), Reporting and commerce. principle of regulatory issuance that recordkeeping requirements. agencies shall endeavor, consistent with Unfunded Mandates Assessment the objectives of the rule and of The Amendment applicable statutes, to fit regulatory and Title II of the Unfunded Mandates ■ informational requirements to the scale Reform Act of 1995 (Pub. L. 104–4) In consideration of the foregoing, the of the businesses, organizations, and requires each Federal agency to prepare Federal Aviation Administration governmental jurisdictions subject to a written statement assessing the effects amends chapter I of title 14 Code of regulation. To achieve this principle, of any Federal mandate in a proposed or Federal Regulations as follows: agencies are required to solicit and final agency rule that may result in an consider flexible regulatory proposals expenditure of $100 million or more (in PART 93—SPECIAL AIR TRAFFIC and to explain the rationale for their 1995 dollars) in any one year by State, RULES AND AIRPORT TRAFFIC local, and tribal governments, in the actions to assure that such proposals are ■ given serious consideration.’’ The RFA aggregate, or by the private sector; such 1. The authority citation for part 93 covers a wide range of small entities, a mandate is deemed to be a ‘‘significant continues to read as follows: including small businesses, not-for- regulatory action.’’ The FAA currently Authority: 49 U.S.C. 106(g), 40103, 40106, profit organizations, and small uses an inflation-adjusted value of 40109, 40113, 44502, 44514, 44514, 44701, governmental jurisdictions. $136.1 million in lieu of $100 million. 44719, 46301. Agencies must perform a review to This final rule does not contain such a determine whether a rule will have a mandate; therefore, the requirements of ■ 2. In part 93, Special Federal Aviation significant economic impact on a Title II of the Act do not apply. Regulation (SFAR) No. 105 is amended substantial number of small entities. If Executive Order 13132, Federalism by revising Section 9 to read as follows: the agency determines that it will, the agency must prepare a regulatory The FAA has analyzed this final rule Special Federal Aviation Regulation flexibility analysis as described in the under the principles and criteria of No. 105—Operating Limitations for RFA. Executive Order 13132, Federalism. The Unscheduled Operations at Chicago’s However, if an agency determines that FAA determined that this action will O’Hare International Airport not have a substantial direct effect on a rule is not expected to have a * * * * * significant economic impact on a the States, or the relationship between ■ substantial number of small entities, the national Government and the States, Section 9. Expiration. This Special section 605(b) of the RFA provides that or on the distribution of power and Federal Aviation Regulation expires at 9 the head of the agency may so certify responsibilities among the various p.m., Central Time, on October 31, 2010 and a regulatory flexibility analysis is levels of government. Therefore, the unless sooner terminated. not required. The certification must FAA determined that this final rule does Issued in Washington, DC, on October 24, include a statement providing the not have federalism implications. 2008. factual basis for this determination, and Environmental Analysis Robert A. Sturgell, the reasoning should be clear. Acting Administrator. This final rule extends the expiration FAA Order 1050.1E identifies FAA date of SFAR No. 105, which provides actions that are categorically excluded [FR Doc. E8–25904 Filed 10–29–08; 8:45 am] for fewer airport delays at minimum from preparation of an environmental BILLING CODE 4910–13–P cost. Just as in the initial and final assessment or environmental impact regulatory flexibility analyses, the FAA statement under the National expects there will be a substantial Environmental Policy Act in the number of small entities affected by the absence of extraordinary circumstances. extension of this SFAR, however, the The FAA has determined this proposed economic impact continues to be rulemaking action qualifies for the insignificant. categorical exclusion identified in Therefore as the acting FAA paragraph 312f, and involves no administrator, I certify this rule will not extraordinary circumstances.

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DEPARTMENT OF ENERGY ACTION: Final rule; technical corrections. under the provisions of the NAFTA are set forth in § 102.20 of the CBP Federal Energy Regulatory SUMMARY: This document sets forth regulations (19 CFR 102.20) except for Commission technical corrections to part 102 of the textiles and apparel products covered by U.S. Customs and Border Protection § 102.21. Section 102.20 prescribes the 18 CFR Part 385 (CBP) regulations to reflect recent tariff shift rules that are used to changes in the Harmonized Tariff [Docket No. RM08–8–000] determinewhether a good is considered Schedule of the United States. The a good of a NAFTA country (United Ex Parte Contacts and Separation of affected provisions in part 102, which States, Canada or Mexico). The rules of Functions are based in part on specified changes origin relating to trade in textile and in tariff classification, comprise a apparel products, other than those that AGENCY: Federal Energy Regulatory codified system used for determining are products of Israel, are found in Commission, DOE. the country of origin of goods imported § 102.21. ACTION: Correcting amendment. under the North American Free Trade In addition, we note that CBP Agreement (NAFTA) and for the country published in the Federal Register (73 SUMMARY: This document contains a of origin of textile and apparel products FR 43385) on July 25, 2008, a notice of correction to the final regulations (other than those of Israel). proposed rulemaking in which it (Docket No. RM08–8–000) that were DATES: This final rule is effective on proposed to amend the CBP regulations published in the Federal Register on October 30, 2008. to establish uniform rules governing October 22, 2008 (73 FR 62881). The FOR FURTHER INFORMATION CONTACT: CBP determinations of the country of final rule document revised the Federal Heather K. Pinnock, Tariff Classification origin of imported merchandise. Energy Regulatory Commission’s and Marking Branch, Regulations and Specifically, CBP proposed that the regulations to clarify its rules governing Rulings, Office of International Trade, rules in 19 CFR part 102 be applicable ex parte contacts and separation of (202) 572–8828. for all purposes for which ‘‘product of’’ functions as they apply to proceedings or ‘‘country of origin’’ criterion is arising out of investigations initiated SUPPLEMENTARY INFORMATION: prescribed under customs and related under Part 1b of the Commission’s Background laws, the navigation laws of the United regulations. States, and the CBP regulations, except On June 6, 1996, CBP published in the for the purpose of determining whether DATES: Effective Date: November 21, Federal Register (61 FR 28932) as T.D. 2008. a good other than a textile or apparel 96–48, a document which adopted as a good is entitled to preferential treatment FOR FURTHER INFORMATION CONTACT: final rule, amendments to the CBP under the United States’ free trade Wilbur Miller, Federal Energy regulations establishing specific rules agreements with Israel and Jordan, or Regulatory Commission, 888 First for determining when the country of unless otherwise specified, or as Street, NE., Washington, DC 20426, origin of a good is one of the parties to otherwise provided for by statute. The 202–502–8953, [email protected]. the North American Free Trade technical corrections to the tariff shift Agreement (NAFTA) as required by SUPPLEMENTARY INFORMATION: In FR rules set forth in this document will Annex 311 of the NAFTA (as opposed Document E8–25103, appearing on page enable interested parties to properly to the rules for preference purposes in 62886 in the Federal Register of October evaluate the impact, if any, of the Chapter 4 and Annex 401). In order to 22, 2008, at the beginning of the proposed rulemaking on the country of simplify and standardize country of SUPPLEMENTARY INFORMATION text, before origin of their goods. origin determinations for purposes of paragraph 1, add the following: ‘‘Before the NAFTA, the rules of origin in T.D. Need for Correction Commissioners: Joseph T. Kelliher, 96–48 set forth a codified method that Chairman; Suedeen G. Kelly, Marc Pursuant to section 1205 of the uses specified changes in tariff Spitzer, Philip D. Moeller, and Jon Omnibus Trade and Competitiveness classification (tariff shifts) and other Wellinghoff.’’ Act of 1988 (codified at 19 U.S.C. 3005), rules to express the substantial the International Trade Commission Nathaniel J. Davis, Sr., transformation concept. Under this (ITC) is required to keep the HTSUS Deputy Secretary. codified method, the substantial under continuous review and prepare [FR Doc. E8–25934 Filed 10–29–08; 8:45 am] transformation that an imported good investigations proposing modifications BILLING CODE 6717–01–P must undergo in order to be deemed a to the HTSUS to the President. In April good of the country where the change 2006, the ITC issued Investigation No. occurred is expressed through these 1205–6, Proposed Modifications to the DEPARTMENT OF HOMELAND rules. Harmonized Tariff Schedule of the SECURITY On July 1, 1996, shortly after the UnitedStates, Publication No. 3851. The publication of T.D. 96–48, CBP also gave modifications proposed in the report U.S. Customs and Border Protection effect to section 334 of the Uruguay were effective onFebruary 3, 2007, Round Agreements Act by pursuant to Presidential Proclamation 19 CFR Part 102 implementing rules of origin applicable 8097 which was published in the to all textile and apparel imports except Federal Register on January 4, 2007 (72 [CBP Dec. 08–42] for purposes of determining whether FR 453). Technical Corrections Relating to the goods originate in Israel (see T.D. 95–69, As a result of the 2007 modifications Rules of Origin for Goods Imported published in the Federal Register on to the HTSUS, certain tariff provisions Under the NAFTA and for Textile and September 5, 1995 (60 FR 46188)). have been added or removed, and Apparel Products The specific changes in tariff certain goods have been transferred, for classification requirements for tariff classification purposes, to different AGENCIES: Customs and Border determining the country of origin of or newly-created tariff provisions. The Protection, Department of Homeland imported goods (other than textiles and changes to the HTSUS involve product Security; Department of the Treasury. apparel products covered by § 102.21) coverage and/or numbering of certain

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headings and subheadings and are not the tariff shift rule for heading 6209.10.0000– PART 102—RULES OF ORIGIN intended to have any other substantive 6209.20.5035, HTSUS, has been renumbered ■ effect. Accordingly, this document to reflect that subheading 6209.10, HTSUS, 1. The authority citation for part 102 makes technical corrections to §§ 102.20 was deleted, and reflect the new range of continues to read as follows: tariff subheadings. As the rule for Authority: 19 U.S.C. 66, 1202 (General and 102.21 in order for the regulations subheadings 6209.20.5045 through Note 3(i), Harmonized Tariff Schedule of the to conform the tariff shift rules to the 6209.90.9000, HTSUS, is the same as the rule United States), 1624, 3314, 3592. current version of the HTSUS. In for subheading 6209.10, HTSUS, no change addition, this document amends in the rule is necessary. ■ 2. In § 102.20: §§ 102.20(a) and 102.21(a), (b), (c), and ■ a. The introductory text is amended (d) by removing the word ‘‘shall’’ each Inapplicability of Notice and Delayed Effective Date by removing the word ‘‘shall’’ and place it appears and adding, in its place, adding, in its place, the word ‘‘will’’; the word ‘‘will’’ or ‘‘must’’ as Pursuant to 5 U.S.C. 553(b)(B) and ■ b. The table is further amended by appropriate. (d)(3), CBP has determined that it would removing the entries for: ‘‘0210.90’’, The examples set forth below be impracticable and contrary to the ‘‘2811.23–2811.29’’, ‘‘2826.11–2833.19’’, illustrate the need for the technical public interest to delay publication of ‘‘2833.22–2833.26’’, ‘‘2836.10’’, corrections to §§ 102.20 and 102.21 this rule in final form pending an ‘‘2836.70’’, ‘‘2838’’, ‘‘2839.20–2839.90’’, described above. opportunity for public comment and ‘‘2841.10–2841.30’’, ‘‘2850–2851’’, Example 1: Pursuant to the existing terms that there is good cause for this final ‘‘2903.11–2903.30’’, ‘‘2906.14’’, of § 102.20(n), the tariff shift rule for heading rule to become effective immediately ‘‘2912.11–2912.13’’, ‘‘2915.11–2915.35’’, 7416, HTSUS, permits, in relevant part, a upon publication. The technical ‘‘2918.90’’, ‘‘2920.10–2926.90’’, tariff shift to this heading ‘‘from any other corrections contained in this document ‘‘2936.10–2936.29’’, ‘‘3001.10–3001.90’’, heading.’’ Prior to the 2007 amendments to the HTSUS, copper springs were classified in merely conform the tariff shift rules in ‘‘3006.80’’, ‘‘3102.70’’, ‘‘3103.10– subheading 7416.00, HTSUS, and therefore the regulations to the current HTSUS 3103.20’’, ‘‘3104.10–3104.30’’, were subject to the above tariff shift rule. and will facilitate trade by ensuring that ‘‘3301.11–3301.90’’, ‘‘3404.10–3404.20’’, This rule is satisfied when copper springs of country of origin determinations made ‘‘3808.10’’, ‘‘3808.20’’, ‘‘3808.30’’, heading 7416, HTSUS, are processed from using the regulations are consistent with ‘‘3808.40’’, ‘‘3808.90’’, ‘‘3824.20’’, other articles of copper from any other the HTSUS. ‘‘4601.20–4601.99’’, ‘‘4815’’, ‘‘4823.12’’, heading. Under the 2007 amendments to the ‘‘4823.19’’, ‘‘4823.60–4823.70’’, Regulatory Flexibility Act HTSUS, however, heading 7416 was deleted ‘‘6811.10’’, ‘‘6811.20’’, ‘‘6811.30’’, and copper springs were moved from ‘‘6811.90’’, ‘‘6812.50’’, ‘‘6812.60– subheading 7416.00 to subheading 7419.99, Because this document is not subject HTSUS. As a result, copper springs(classified to the notice and public procedure 6812.70’’, ‘‘6812.90’’, ‘‘7012–7018’’, in subheading 7419.99, HTSUS) which are requirements of 5 U.S.C. 553, it is not ‘‘7321.11–7321.83’’, ‘‘7801–7803’’, processed from other articles of copper of subject to the provisions of the ‘‘7805–7806’’, ‘‘7901–7906’’, ‘‘8002– subheading 7419.99 would not presently Regulatory Flexibility Act (5 U.S.C. 601 8004’’, ‘‘8005’’, ‘‘8006–8007’’, ‘‘8101.10– satisfy the tariff shift rule set forth above. In et seq.). 8101.95’’, ‘‘8442.10–8442.30’’, order to maintain the original result of the ‘‘8443.11–8443.60’’, ‘‘8443.90’’, tariff shift rule for copper springs that had Executive Order 12866 ‘‘8456.10–8456.99’’, ‘‘8469.11–8469.12’’, been classified within heading 7416, HTSUS, ‘‘8469.20–8469.30’’, ‘‘8485’’, ‘‘8505.11– the tariff shift rule in § 102.20(n) must be These amendments do not meet the amended to provide for a change to copper criteria for a ‘‘significant regulatory 8505.30’’, ‘‘8509.10–8509.80’’, springs of subheading 7419.99, HTSUS, from action’’ as specified in Executive Order ‘‘8517.11–8517.80’’, ‘‘8517.90’’, any other subheading, including from any 12866. ‘‘8519.10–8519.40’’, ‘‘8520.10–8520.20’’, other good of subheading 7419.99, HTSUS. ‘‘8520.32–8520.33’’, ‘‘8520.39–8520.90’’, Example 2: Under the 2007 amendments to Signing Authority ‘‘8524’’, ‘‘8525.10–8525.20’’, ‘‘8525.30– the HTSUS, a new subheading was created at 8525.40’’, ‘‘8527.19–8527.90’’, While the subject matter of this 2910.40, HTSUS, for a product referred to as ‘‘8528.12–8528.30’’, ‘‘8543.11–8543.19’’, document pertains to the authority of ‘‘dieldrin (ISO, INN).’’ Prior to the 2007 ‘‘8543.40–8543.89’’, ‘‘8708.31’’, amendments, this product was classified in the Secretary of the Treasury to approve ‘‘8708.39’’, ‘‘8708.60’’, ‘‘9009.11– the basket ‘‘other’’ provision under regulations relating to certain revenue 9009.30’’, ‘‘9009.91–9009.99’’, subheading 2910.90, HTSUS. As new functions (see 19 CFR Part 0), CBP ‘‘9010.41–9010.50’’, ‘‘9030.10–9030.40’’, subheading 2910.40, HTSUS, is not included retains authority pursuant to Treasury in the rules set forth in § 102.20(f), it is not ‘‘9030.82–9030.83’’, ‘‘9031.10–9031.30’’, Directive 28–01 to sign a document possible to determine the origin of goods ‘‘9403.10–9403.80’’, ‘‘9501’’, ‘‘9502.10’’, making nonsubstantive technical classifiable under this provision using the ‘‘9502.99’’, ‘‘9503.10–9503.30’’, corrections to a previously issued current regulations. Accordingly, § 102.20(f) ‘‘9503.41–9503.49’’, ‘‘9503.50–9503.60’’, regulation. For this reason, the CBP must be amended in order to add subheading ‘‘9503.70–9503.90’’, ‘‘9614.20’’, and 2910.40, HTSUS, and the applicable tariff Commissioner is the proper official to shift rule must also be amended in order to ‘‘9614.90’’; sign this document. ■ provide for the new subheading. It should be c. The table is further amended by noted that these technical corrections to List of Subjects in 19 CFR Part 102 adding, in numerical order, entries § 102.20(f) will produce the same result as for:‘‘0210.91–0210.99’’, ‘‘2811.29’’, when dieldrin (ISO, INN) was classified Customs duties and inspections, ‘‘2826.12–2826.19’’, ‘‘2833.22–2833.25’’, under subheading 2910.90, HTSUS, in the Imports, Reporting and recordkeeping ‘‘2839.90’’, ‘‘2841.30’’, ‘‘2850’’, ‘‘2852’’, 2006 HTSUS. requirements, Rules of origin, Trade ‘‘2853’’, ‘‘2903.11–2903.39’’, ‘‘2912.11– Example 3: Under current § 102.21(e), agreements. 2912.12’’, ‘‘2915.11–2915.33’’, there is a rule for subheadings 6209.10.0000 ‘‘2915.36’’, ‘‘2918.91–2918.99’’, through 6209.20.5035, HTSUS. Under the Amendments to the CBP Regulations 2007 amendments to the HTSUS, subheading ‘‘2920.11–2926.90’’, ‘‘2936.21–2936.29’’, ■ 6209.10, HTSUS, which covers babies’ For the reasons set forth above, part ‘‘3001.20–3001.90’’, ‘‘3006.91’’, garments and clothing accessories of wool or 102 of title 19 of the Code of Federal ‘‘3006.92’’, ‘‘3103.10’’, ‘‘3104.20– fineanimal hair, was deleted, with the goods Regulations (19 CFR part 102) is 3104.30’’, ‘‘3301.12–3301.90’’, moving to subheading 6209.90. As a result, amended as set forth below: ‘‘3404.20’’, ‘‘3808.50’’, ‘‘3808.91’’,

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‘‘3808.92’’, ‘‘3808.93’’, ‘‘3808.94’’, ‘‘2841.90’’, ‘‘2842.90’’, ‘‘2850’’, ‘‘2852’’, ‘‘8425.11–8430.69’’, ‘‘8442.30’’, ‘‘3808.99’’, ‘‘4601.21–4601.99’’, ‘‘2853’’, ‘‘2903.11’’, ‘‘2903.39’’, ‘‘8443.11–8443.39’’, ‘‘8443.91’’, ‘‘4823.61–4823.70’’, ‘‘6811.40’’, ‘‘2903.51–2904.90’’, ‘‘2905.11–2905.19’’, ‘‘8443.99’’, ‘‘8456.10–8456.90’’, ‘‘6811.81’’, ‘‘6811.82’’, ‘‘6811.83’’, ‘‘2906.19’’, ‘‘2907.12–2907.22’’, ‘‘8469.00’’, ‘‘8470.10–8471.50’’, ‘‘6811.89’’, ‘‘6812.80’’, ‘‘6812.91’’, ‘‘2909.11–2909.49’’, ‘‘2910.10–2910.90’’, ‘‘8471.60–8472.90’’, ‘‘8479.10–8479.89’’, ‘‘6812.92–6812.93’’, ‘‘6812.99’’, ‘‘7013– ‘‘2912.11–2912.12’’, ‘‘2912.19–2912.49’’, ‘‘8486.10–8486.40’’, ‘‘8486.90’’, ‘‘8487’’, 7018’’, ‘‘7321.11–7321.89’’, ‘‘7801– ‘‘2915.11–2915.33’’, ‘‘2915.36’’, ‘‘8505.11–8505.20’’, ‘‘8505.90’’, 7802’’, ‘‘7806’’, ‘‘7901–7905’’, ‘‘8002– ‘‘2915.39’’, ‘‘2917.11–2917.39’’, ‘‘8508.11–8508.60’’, ‘‘8508.70’’, 8003’’, ‘‘8007’’, ‘‘8101.10–8101.94’’, ‘‘2918.11–2918.22’’, ‘‘2918.91–2918.99’’, ‘‘8509.40–8509.80’’, ‘‘8517.11–8517.69’’, ‘‘8442.30’’, ‘‘8443.11–8443.39’’, ‘‘2920.11–2926.90’’, ‘‘2929.10–2930.90’’, ‘‘8517.70’’, ‘‘8519.20–8519.30’’, ‘‘8443.91’’, ‘‘8456.10–8456.90’’, ‘‘2936.21–2936.29’’, ‘‘2936.90’’, ‘‘8519.50’’, ‘‘8519.81’’, ‘‘8519.89’’, ‘‘8469.00’’, ‘‘8486.10–8486.40’’, ‘‘3001.20–3001.90’’, ‘‘3002.10–3002.90’’, ‘‘8523’’, ‘‘8525.50–8525.60’’, ‘‘8525.80’’, ‘‘8486.90’’, ‘‘8487’’, ‘‘8505.11–8505.20’’, ‘‘3003.10’’, ‘‘3003.20’’, ‘‘3003.31’’, ‘‘8527.19–8527.99’’, ‘‘8528.41’’, ‘‘8505.90’’, ‘‘8508.11–8508.60’’, ‘‘3003.39’’, ‘‘3003.40’’, ‘‘3003.90’’, ‘‘8528.49’’, ‘‘8528.51’’, ‘‘8528.59’’, ‘‘8508.70’’, ‘‘8509.40–8509.80’’, ‘‘3004.10’’, ‘‘3004.20’’, ‘‘3004.31’’, ‘‘8528.61’’, ‘‘8528.69–8528.73’’, ‘‘8517.11–8517.69’’, ‘‘8517.70’’, ‘‘3004.32’’, ‘‘3004.39’’, ‘‘3004.40’’, ‘‘8536.10–8536.90’’, ‘‘8541–8542’’, ‘‘8519.20–8519.30’’, ‘‘8519.50’’, ‘‘3004.50’’, ‘‘3004.90’’, ‘‘3005.10’’, ‘‘8543.10’’, ‘‘8543.70’’, ‘‘8543.90’’, ‘‘8519.81’’, ‘‘8519.89’’, ‘‘8525.50– ‘‘3006.10’’, ‘‘3006.20–3006.60’’, ‘‘8544.11–8544.70’’, ‘‘8708.29’’, 8525.60’’, ‘‘8525.80’’, ‘‘8527.19– ‘‘3006.70’’, ‘‘3006.91’’, ‘‘3006.92’’, ‘‘8708.30’’, ‘‘8708.40’’, ‘‘8708.50’’, 8527.99’’, ‘‘8528.41’’, ‘‘8528.49’’, ‘‘3102.90’’, ‘‘3103.10’’, ‘‘3103.90’’, ‘‘8528.51’’, ‘‘8528.59’’, ‘‘8528.61’’, ‘‘3104.20–3104.30’’, ‘‘3104.90’’, ‘‘8708.80’’, ‘‘8708.91’’, ‘‘8708.92’’, ‘‘8528.69–8528.73’’, ‘‘8543.10’’, ‘‘3206.20–3209.90’’, ‘‘3301.12–3301.90’’, ‘‘8708.94’’, ‘‘8708.95’’, ‘‘8708.99’’, ‘‘8543.70’’, ‘‘8708.30’’, ‘‘8708.50’’, ‘‘3404.20’’, ‘‘3404.90’’, ‘‘3808.50’’, ‘‘9006.10–9006.69’’, ‘‘9010.50’’, ‘‘8708.95’’, ‘‘9010.50’’, ‘‘9030.10’’, ‘‘3808.91’’, ‘‘3808.92’’, ‘‘3808.93’’, ‘‘9010.90’’, ‘‘9027.10–9027.90’’, ‘‘9030.20’’, ‘‘9030.31’’, ‘‘9030.32’’, ‘‘3808.94’’, ‘‘3808.99’’, ‘‘3824.71– ‘‘9030.10’’, ‘‘9030.20’’, ‘‘9030.31’’, ‘‘9030.33’’, ‘‘9030.39’’, ‘‘9030.40’’, 3824.90’’, ‘‘3920.10–3921.90’’, ‘‘4203– ‘‘9030.32’’, ‘‘9030.33’’, ‘‘9030.39’’, ‘‘9030.82–9030.84’’, ‘‘9031.10–9031.20’’, 4206’’, ‘‘4412’’, ‘‘4413–4421’’, ‘‘4601.21– ‘‘9030.40’’, ‘‘9030.82–9030.84’’, ‘‘9403.10–9403.89’’, ‘‘9503’’, and 4601.99’’, ‘‘4823.61–4823.70’’, ‘‘9030.89’’, ‘‘9030.90’’, ‘‘9031.10– ‘‘9614.00’’; ‘‘4823.90’’, ‘‘6811.40’’, ‘‘6811.81’’, 9031.20’’, ‘‘9031.41–9031.49’’, ‘‘9201– ■ d. The table is further amended by ‘‘6811.82’’, ‘‘6811.83’’, ‘‘6811.89’’, 9208’’, ‘‘9401.10–9401.80’’, ‘‘9402’’, revising the entries in the ‘‘Tariff ‘‘6812.80’’, ‘‘6812.91’’, ‘‘6812.92– ‘‘9403.10–9403.89’’, ‘‘9503’’, and shiftand/or other requirements’’ column 6812.93’’, ‘‘6812.99’’, ‘‘7013–7018’’, ‘‘9614.00’’. adjacent to the ‘‘HTSUS’’ column listing ‘‘7020’’, ‘‘7321.11–7321.89’’, ‘‘7411– The additions and revisions read as for: ‘‘2707.10–2707.99’’, ‘‘2811.29’’, 7418’’, ‘‘7419.10–7419.99’’, ‘‘7801– follows: ‘‘2824.10–2824.90’’, ‘‘2826.12–2826.19’’, 7802’’, ‘‘7806’’, ‘‘7901–7905’’, ‘‘7907’’, ‘‘2833.22–2833.25’’, ‘‘2833.29’’, ‘‘8002–8003’’, ‘‘8007’’, ‘‘8101.10– § 102.20 Specific rules by tariff ‘‘2835.29–2835.39’’, ‘‘2836.99’’, 8101.94’’, ‘‘8101.96’’, ‘‘8101.99’’, classification. ‘‘2839.90’’, ‘‘2841.30’’, ‘‘2841.50’’, ‘‘8103.20–8113.00’’, ‘‘8418.10–8418.91’’, * * * * *

HTSUS Tariff shift and/or other requirements

******* 0210.91–0210.99 ..... A change to subheading 0210.91 through 0210.99 from any other chapter; or A change to edible meals and flours of subheading 0210.91 through 0210.99 from any product other than edible meals and flours of Chapter 2.

******* 2707.10–2707.99 ..... A change to subheading 2707.10 through 2707.99 from any other heading; or A change to phenols of subheading 2707.99 from any other subheading or from any other good of subheading 2707.99, provided that the good resulting from such change is the product of a chemical reaction; or A change to any other good of subheading 2707.99 from phenols of subheading 2707.99 or from any other subheading, provided that the good resulting from such change is the product of a chemical reaction; or A change to subheading 2707.10 through 2707.99 from any other subheading, including any subheading within that group, provided that the good resulting from such change is the product of a chemical reaction.

******* 2811.29 ...... A change to sulphur dioxide of subheading 2811.29 from any other good of subheading 2811.29 or from any other sub- heading; or A change to any other good of subheading 2811.29 from sulphur dioxide of subheading 2811.29 or from any other sub- heading.

******* 2824.10–2824.90 ..... A change to red lead or to orange lead of subheading 2824.90 from any other good of subheading 2824.90 or from any other subheading, except from heading 2607; or A change to any other good of subheading 2824.90 from red lead or from orange lead of subheading 2824.90 or from any other subheading, except from heading 2607; or A change to subheading 2824.10 through 2924.90 from any other subheading, including another subheading within that group, except from heading 2607.

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HTSUS Tariff shift and/or other requirements

******* 2826.12–2833.19 ..... A change to fluorides of ammonium or of sodium of subheading 2826.19 from any other good of subheading 2826.19 or from any other subheading; or A change to any other good of subheading 2826.19 from fluorides of ammonium or of sodium of subheading 2826.19 or from any other subheading; or A change to fluorosilicates of sodium or of potassium of subheading 2826.90 from any other good of subheading 2826.90 or from any other subheading; or A change to any other good of subheading 2826.90 from fluorosilicates of sodium or of potassium of subheading 2826.90 or from any other subheading; or A change to chlorides of iron of subheading 2827.39 from any other good of subheading 2827.39 or from any other sub- heading; or A change to chlorides of cobalt of subheading 2827.39 from any other good of subheading 2827.39 or from any other subheading; or A change to chlorides of zinc of subheading 2827.39 from any other good of subheading 2827.39 or from any other sub- heading; or A change to any other good of subheading 2827.39 from chlorides of iron, of cobalt, or of zinc of subheading 2827.39 or from any other subheading; or A change to zinc sulphide of subheading 2830.90 from any other good of subheading 2830.90 or from any other sub- heading; or A change to cadmium sulphide of subheading 2830.90 from any other good of subheading 2830.90 or from any other subheading; or A change to any other good of subheading 2830.90 from zinc sulphide or cadmium sulphide of subheading 2830.90 or from any other subheading; or A change to subheading 2826.12 through 2833.19 from any other subheading, including another subheading within that group.

******* 2833.22–2833.25 ..... A change to subheading 2833.22 through 2833.25 from any other subheading, including another subheading within that group.

******* 2833.29 ...... A change to chromium sulphate of subheading 2833.29 from any other good of subheading 2833.29 or from any other subheading; or A change to zinc sulphate of subheading 2833.29 from any other good of subheading 2833.29 or from any other sub- heading; or A change to any other good of subheading 2833.29 from chromium sulphate or zinc sulphate of subheading 2833.29 or from any other subheading, except from heading 2520.

******* 2835.29–2835.39 ..... A change to phosphates of trisodium of subheading 2835.29 from any other good of subheading 2835.29 or from any other subheading; or A change to any other good of subheading 2835.29 from phosphates of trisodium of subheading 2835.29 or from any other subheading; or A change to subheading 2835.29 through 2835.39 from any other subheading, including another subheading within that group.

******* 2836.99 ...... A change to bismuth carbonate of subheading 2836.99 from commercial ammonium carbonate or other ammonium car- bonates or from lead carbonates of subheading 2836.99 or from any other subheading, except from subheading 2617.90; or A change to commercial ammonium carbonate or to other ammonium carbonates of subheading 2836.99 from any other good of subheading 2836.99 or from any other subheading; or A change to lead carbonates of subheading 2836.99 from any other good of subheading 2836.99 or from any other sub- heading, except from heading 2607; or A change to any other good of subheading 2836.99 from commercial ammonium carbonate or other ammonium carbon- ates or from lead carbonates of subheading 2836.99 or from any other subheading, provided that the good classified in subheading 2836.99 is the product of a ‘‘chemical reaction’’ as defined in Note 1.

******* 2839.90 ...... A change to silicates of potassium of subheading 2839.90 from any other good of subheading 2839.90 or from any other subheading; or A change to any other good of subheading 2839.90 from silicates of potassium of subheading 2839.90 or from any other subheading.

******* 2841.30 ...... A change to subheading 2841.30 from any other subheading. 2841.50 ...... A change to chromates of zinc or of lead from any other good of subheading 2841.50 or from any other subheading; or A change to any other good of subheading 2841.50 from chromates of zinc or of lead of subheading 2841.50 or from any other subheading, except from heading 2610.

******* 2841.90 ...... A change to aluminates from any other good of subheading 2841.90 or from any other subheading; or

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HTSUS Tariff shift and/or other requirements

A change to any other good of subheading 2841.90 from aluminates of subheading 2841.90 or from any other sub- heading, provided that the good classified in subheading 2841.90 is the product of a ‘‘chemical reaction’’ as defined in Note 1.

******* 2842.90 ...... A change to fulminates, cyanates and thiocyanates of subheading 2842.90 from any other good of subheading 2842.90 or from any other subheading; or A change to any other good of subheading 2842.90 from fulminates, cyanates and thiocyanates of subheading 2842.90 or from any other subheading, provided that the good classified in subheading 2842.90 is the product of a ‘‘chemical reaction’’ as defined in Note 1.

******* 2850 ...... A change to heading 2850 from any other heading. 2852 ...... A change to other metal oxides, hydroxides or peroxides of heading 2852 from any other good of heading 2852 or from any other heading, provided that the good is the product of a ‘‘chemical reaction’’, as defined in Note 1, except from subheading 2825.90; or A change to other fluorides of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2826.19; or A change to other chlorides of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2827.39; or A change to other bromides or to bromide oxides from any other good of heading 2852 or from any other heading, ex- cept from subheading 2827.59; or A change to iodides or to iodide oxides of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2827.60; or A change to other chlorates of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2829.19; or A change to other perchlorates, bromotes, perbromates, iodates or periodates of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2829.90; or A change to other sulphides or polysulphides, whether or not chemically defined, of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2830.90; or A change to other sulfates of heading 2852 from any other good of heading 2852 or from any other heading, except from heading 2520 or from subheading 2833.29; or A change to other nitrates of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2834.29; or A change to other phosphates from any other good of heading 2852 or from any other heading, except from subheading 2835.29; or A change to other cyanides or to cyanide oxides of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2837.19; or A change to complex cyanides of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2837.20; or A change to fulminates, cyanates or thiocyanates of heading 2852 from any other good of heading 2852 or from any other heading; or A change to other chromates, dichromates or peroxochromates of heading 2852 from any other good of heading 2852 or any other heading, except from heading 2610, or from subheading 2841.50; or A change to other salts of inorganic acids or to peroxoacids, other than azides, of heading 2852 from any other good of heading 2852 or from any other heading, provided that the good classified in heading 2852 is the product of a ‘‘chem- ical reaction’’ as defined in Note 1, except from subheading 2842.90; or A change to other silver compounds of heading 2852 from any other good of heading 2852 or from any other heading, except from subheading 2843.29; or A change to derivatives containing only sulpho groups, their salts and esters from any other good of heading 2852 or from any other heading, except from heading 2908; or A change to palmitic acid, stearic acid, their salts or their esters from any other good of heading 2852 or from any other heading, except from subheading 2915.70; or A change to oleic, linolenic or linolenic acids, their salts or their esters from any other good of heading 2852 or from any other heading, except from subheading 2916.15; or A change to benzoic acid, its salts or its esters from any other good of heading 2852 or from any other heading, except from subheading 3301.90 or subheading 2916.31; or A change to lactic acid, its salts or its esters from any other good of heading 2852 or from any other heading, except 2918.11; or A change to other organo-inorganic compounds of heading 2852 from any other good of heading 2852 or from any other heading, except from heading 2931. 2853 ...... A change to heading 2853 from any other heading.

******* 2903.11–2903.39 ..... A change to subheading 2903.31 through 2903.39 from any subheading outside that group; or A change to any other good of subheading 2903.11 through 2903.39 from any other subheading, including another sub- heading within that group.

******* 2903.51–2904.90 ..... A change to aldrin (ISO), chlordane (ISO) or heptachlor (ISO) of subheading 2903.52 from any other subheading, except from subheading 2903.59; or A change to any other good of subheading 2903.59 from any other subheading, except from subheading 2903.52; or A change to any other good of subheading 2903.51 through 2904.90 from any other subheading, including another sub- heading within that group.

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HTSUS Tariff shift and/or other requirements

2905.11–2905.19 ..... A change to pentanol (amyl alcohol) and isomers thereof of subheading 2905.19 from any other good of subheading 2905.19 or from any other subheading; or A change to any other good of subheading 2905.19 from pentanol (amyl alcohol) and isomers thereof of subheading 2905.19 or from any other subheading; or A change to any other good of subheading 2905.11 through 2905.19 from any other subheading, including another sub- heading within that group.

******* 2906.19 ...... A change to terpineols of subheading 2906.19 from any other good of subheading 2906.19 or from any other sub- heading, except from heading 3805; or A change to any other good of subheading 2906.19 from terpineols of subheading 2906.19 or from any other sub- heading, except from subheading 3301.90 or 3805.90.

******* 2907.12–2907.22 ..... A change to xylenols or their salts of subheading 2907.19 from any other good of subheading 2907.19 or from any other subheading, except from subheading 2707.99; or A change to any other good of subheading 2907.19 from xylenols and their salts of subheading 2907.19 or from any other subheading, except from subheading 2707.99; or A change to any other good of subheading 2907.12 through 2907.22 from any other subheading, including another sub- heading within that group, except from subheading 2707.99.

******* 2909.11–2909.49 ..... A change to monomethyl ethers of ethylene glycol or of diethylene glycol of subheading 2909.44 through 2909.49 from any other good of subheading 2909.44 through 2909.49 or from any other subheading; or A change to any other good of subheading 2909.44 through 2909.49 from monomethyl ethers of ethylene glycol or of diethylene glycol of subheading 2909.44 through 2909.49 or from any other subheading; or A change to any other good of subheading 2909.11 through 2909.49 from any other subheading, including another sub- heading within than group.

******* 2910.10–2910.90 ..... A change to dieldrin (ISO, INN) of subheading 2910.40 from any other subheading, except from subheading 2910.90; or A change to subheading 2910.90 from any other subheading, except from subheading 2910.40; or A change to any other good of subheading 2910.10 through 2910.90 from any other subheading, including another sub- heading within that group.

******* 2912.11–2912.12 ..... A change to subheading 2912.11 through 2912.12 from any other subheading, including another subheading within that group. 2912.19–2912.49 ..... A change to butanal (butyraldehyde, normal isomer) of subheading 2912.19 from any other good of subheading 2912.19 or from any other subheading; or A change to any other good of subheading 2912.19 from butanal (butyraldehyde, normal isomer) of subheading 2912.19 or from any other subheading, except from subheading 3301.90; or A change to any other good of subheading 2912.19 through 2912.49 from any other subheading, including another sub- heading within that group, except from subheading 3301.90.

******* 2915.11–2915.33 ..... A change to sodium acetate of subheading 2915.29 from any other good of subheading 2915.29 or from any other sub- heading; or A change to cobalt acetates of subheading 2915.29 from any other good of subheading 2915.29 or from any other sub- heading; or A change to any other good of subheading 2915.29 from sodium acetate or cobalt acetates of subheading 2915.29 or from any other subheading; or A change to any other good of subheading 2915.11 through 2915.33 from any other subheading, including another sub- heading within that group. 2915.36 ...... A change to subheading 2915.36 from any other subheading, except from subheading 2915.90. 2915.39 ...... A change to isobutyl acetate of subheading 2915.39 from any other good of subheading 2915.39 or from any other sub- heading; or A change to 2-Ethoxyethyl acetate of subheading 2915.39 from any other good of subheading 2915.39 or from any other subheading; or A change to any other good of subheading 2915.39 from isobutyl acetate or 2-Ethoxyethyl acetate of subheading 2915.39 or from any other subheading, except from subheading 3301.90.

******* 2917.11–2917.39 ..... A change to dibutyl orthophthalates of subheading 2917.34 from any other good of subheading 2917.34 or from any other subheading; or A change to any other good of subheading 2917.34 from dibutyl orthophthalates of subheading 2917.34 or from any other subheading; or A change to any other good of subheading 2917.11 through 2917.39 from any other subheading, including another sub- heading within that group. 2918.11–2918.22 ..... A change to subheading 2918.18 from any other subheading, except from subheading 2918.19; or A change to any other good of subheading 2918.19 from any other subheading, except from subheading 2918.18; or A change to subheading 2918.11 through 2918.22 from any other subheading, including another subheading within that group.

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HTSUS Tariff shift and/or other requirements

******* 2918.91–2918.99 ..... A change to subheading 2918.91 through 2918.99 from any other subheading outside that group, except from sub- heading 3301.90.

******* 2920.11–2926.90 ..... A change to subheading 2920.11 through 2920.19 from any subheading outside that group; or A change to diethylamine and its salts of subheading 2921.19 from any other good of subheading 2921.19 or any other subheading; or A change to any other good of subheading 2921.19 from diethylamine and its salts of subheading 2921.19 or from any other subheading; or A change to anisidines, dianisidines, phenetidines, and their salts of subheading 2922.29 from any other good of sub- heading 2922.29 or any other subheading; or A change to any other good of subheading 2922.29 from anisidines, dianisidines, phenetidines, and their salts of sub- heading 2922.29 or from any other subheading; or A change to subheading 2924.12 from any other subheading, except from subheading 2924.19; or A change to subheading 2924.19 from any other subheading, except from subheading 2924.12; or A change to subheading 2925.21 through 2925.29 from any subheading outside that group; or A change to any other good of subheading 2920.11 through 2926.90 from any other subheading, including another sub- heading within that group.

******* 2929.10–2930.90 ..... A change to subheading 2930.50 from any other subheading, except from subheading 2930.90; or A change to dithiocarbonates (xanthates) of subheading 2930.90 from any other good of subheading 2930.90 or from any other subheading; A change to any other good of subheading 2930.90 from dithiocarbonates (xanthates) of subheading 2930.90 or from any other subheading, except from subheading 2930.50; or A change to any other good of subheading 2929.10 through 2930.90 from any other subheading, including another sub- heading within that group.

******* 2936.21–2936.29 ..... A change to subheading 2936.21 through 2936.29 from any other subheading, including another subheading within that group. 2936.90 ...... A change to unmixed provitamins of subheading 2936.90 from any other good of subheading 2936.90 or from any other subheading; or A change to any other good of subheading 2936.90 from any other subheading, except from subheading 2936.21 through 2936.29.

******* 3001.20–3001.90 ..... A change to glands and other organs, dried, whether or not powdered, of subheading 3001.90 from any other good of subheading 3001.90 or from any other subheading, except from subheading 0206.10 through 0208.90 or 0305.20, heading 0504 or 0510, or subheading 0511.99 if the change from these provisions is not to a gland or other organ powder classified in subheading 3001.90, and except a change from subheading 3006.92; or A change to any other good of subheading 3001.90 from glands and other organs, dried, whether or not powdered, of subheading 3001.90 or from any other subheading, except from subheading 3006.92; or A change to any other good of subheading 3001.20 through 3001.90 from any other subheading, including another sub- heading within that group, except a change from subheading 3006.92. 3002.10–3002.90 ..... A change to subheading 3002.10 through 3002.90 from any other subheading including another subheading within that group, except a change from subheading 3006.92. 3003.10 ...... A change to subheading 3003.10 from any other subheading, except from subheading 2941.10, 2941.20, 3003.20, or 3006.92. 3003.20 ...... A change to subheading 3003.20 from any other subheading, except from subheading 2941.30 through 2941.90, or 3006.92. 3003.31 ...... A change to subheading 3003.31 from any other subheading, except from subheading 2937.12 or 3006.92. 3003.39 ...... A change to subheading 3003.39 from any other subheading, except from hormones or their derivatives classified in Chapter 29, or except from subheading 3006.92. 3003.40 ...... A change to subheading 3003.40 from any other subheading, except from heading 1211, subheading 1302.11, 1302.19, 1302.20, 1302.39, or 3006.92, or alkaloids or derivatives thereof classified in Chapter 29. 3003.90 ...... A change to subheading 3003.90 from any other subheading, provided that the domestic content of the therapeutic or prophylactic component is no less than 40 percent by weight of the total therapeutic or prophylactic content, or except from subheading 3006.92. 3004.10 ...... A change to subheading 3004.10 from any other subheading, except from subheading 2941.10, 2941.20, 3003.10, 3003.20, or 3006.92. 3004.20 ...... A change to subheading 3004.20 from any other subheading, except from subheading 2941.30 through 2941.90, 3003.20, or 3006.92. 3004.31 ...... A change to subheading 3004.31 from any other subheading, except from subheading 2937.12, 3003.31, 3003.39, or 3006.92. 3004.32 ...... A change to subheading 3004.32 from any other subheading, except from subheading 3003.39 or 3006.92, or from adre- nal corticosteroid hormones classified in Chapter 29. 3004.39 ...... A change to subheading 3004.39 from any other subheading, except from subheading 3003.39 or 3006.92, or from hor- mones or derivatives thereof classified in Chapter 29. 3004.40 ...... A change to subheading 3004.40 from any other subheading, except from heading 1211, subheading 1302.11, 1302.19, 1302.20, 1302.39, 3003.40, or 3006.92, or alkaloids or derivatives thereof classified in Chapter 29. 3004.50 ...... A change to subheading 3004.50 from any other subheading, except from subheading 3003.90 or 3006.92, or vitamins classified in Chapter 29 or products classified in heading 2936.

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HTSUS Tariff shift and/or other requirements

3004.90 ...... A change to subheading 3004.90 from any other subheading, except from subheading 3003.90 or 3006.92, and provided that the domestic content of the therapeutic or prophylactic component is no less than 40 percent by weight of the total therapeutic or prophylactic content. 3005.10 ...... A change to subheading 3005.10 from any other subheading, except from subheading 3006.92 or 3825.30. 3006.10 ...... A change to subheading 3006.10 from any other subheading, except from subheading 1212.20, 3006.92, 3825.30, or from articles of catgut of heading 4206. 3006.20–3006.60 ..... A change to subheading 3006.20 through 3006.60 from any other subheading, including another subheading within that group, except from subheading 3006.92 or 3825.30. 3006.70 ...... A change to subheading 3006.70 from any other subheading, except from subheading 3006.92 or 3825.30, and provided no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or com- pound. 3006.91 ...... A change to subheading 3006.91 from any other subheading, except from heading 3926. 3006.92 ...... A change to subheading 3006.92 from any other chapter.

******* 3102.90 ...... A change to calcium cyanamide of subheading 3102.90 from any other subheading or from any other good of sub- heading 3102.90; or A change to any other good of subheading 3102.90 from calcium cyanamide of subheading 3102.90 or from any other subheading, except from subheading 3102.10 through 3102.80. 3103.10 ...... A change to subheading 3103.10 from any other subheading. 3103.90 ...... A change to basic slag of subheading 3103.90 from any other good of subheading 3103.90 or from any other sub- heading; or A change to any other good of subheading 3103.90 from basic slag of subheading 3103.90 or from any other sub- heading, except from subheading 3103.10. 3104.20–3104.30 ..... A change to subheading 3104.20 through 3104.30 from any other subheading, including another subheading within that group. 3104.90 ...... A change to carnallite, sylvite or other crude natural potassium salts of subheading 3104.90 from any other good of sub- heading 3104.90 or from any other subheading; or A change to any other good of subheading 3104.90 from any other subheading, except from subheading 3104.20 through 3104.30.

******* 3206.20–3209.90 ..... A change to pigments and preparations based on cadmium compounds of subheading 3206.49 from any other good of subheading 3206.49 or from any other subheading; or A change to pigments and preparations based on hexacyanoferrates (ferrocyanides and ferricyanides) from any other good of subheading 3206.49 or from any other subheading; or A change to any other good of subheading 3206.49 from pigments and preparations based on cadmium compounds or hexacyanoferrates (ferrocyanides and ferricyanides) of subheading 3206.49 or from any other subheading; or A change to any other good of subheading 3206.20 through 3209.90 from any other subheading, including another sub- heading within that group.

******* 3301.12–3301.90 ..... A change to oil of bergamot of subheading 3301.19 from any other good of subheading 3301.19 or from any other sub- heading; or A change to oil of lime of subheading 3301.19 from any other good of subheading 3301.19 or from any other sub- heading; or A change to any other good of subheading 3301.19 from oil of bergamot or of lime of subheading 3301.19 or from any other subheading; or A change to oil of geranium of subheading 3301.29 from any other good of subheading 3301.29 or from any other sub- heading; or A change to oil of jasmin of subheading 3301.29 from any other good of subheading 3301.29 or from any other sub- heading; or A change to oil of lavender or of lavandin of subheading 3301.29 from any other good of subheading 3301.29 or from any other subheading; or A change to oil of vetiver of subheading 3301.29 from any other good of subheading 3301.29 or from any other sub- heading; or A change to any other good of subheading 3301.29 from oil of geranium, jasmine, lavender or lavandin, or of vetiver of subheading 3301.29 or from any other subheading; or A change to any other good of subheading 3301.12 through 3301.90 from any other subheading, including another sub- heading within that group.

******* 3404.20 ...... A change to subheading 3404.20 from any other subheading. 3404.90 ...... A change to artificial waxes and prepared waxes of chemically modified lignite of subheading 3404.90 from any other good of subheading 3404.90 or from any other subheading; or A change to any other good of subheading 3404.90 from artificial waxes and prepared waxes of chemically modified lig- nite of subheading 3404.90 or from any other subheading, except from heading 1521 or subheading 2712.20 or 2712.90.

******* 3808.50 ...... A change to insecticides from any other subheading, except from vegetable saps or extracts of pyrethrum or of the roots of plants containing rotenone of subheading 1302.19 or from subheading 3808.91 or from any insecticide classified in Chapter 28 or 29; or

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HTSUS Tariff shift and/or other requirements

A change to fungicides from any other subheading, except from fungicides classified in Chapter 28 or 29 or from sub- heading 3808.92; or A change to herbicides, anti-sprouting products and plant-growth regulators from any other subheading, except from her- bicides, anti-sprouting products and plant-growth regulators classified in Chapter 28 or 29 or from subheading 3808.93; or A change to a mixture of herbicides, anti-sprouting products and plant-growth regulators from any other subheading, pro- vided that the mixture is made from two or more active ingredients and a domestic active ingredient constitutes no less than 40 percent by weight of the total active ingredients; or A change to disinfectants from any other subheading, except from subheading 3808.94; or A change to any other good of subheading 3808.50 from any other good of subheading 3808.50 or from any other sub- heading, except from rodenticides and other pesticides classified in Chapter 28 or 29 or from subheading 3808.99; or A change to a mixture of subheading 3808.50 from any other subheading, provided that the mixture is made from two or more active ingredients and a domestic active ingredient constitutes no less than 40 percent by weight of the total ac- tive ingredients, except from subheading 3808.99. 3808.91 ...... A change to subheading 3808.91 from any other subheading, except from vegetable saps or extracts of pyrethrum or of the roots of plants containing rotenone of subheading 1302.19 or from any insecticide classified in Chapter 28 or 29 or subheading 3808.50. 3808.92 ...... A change to subheading 3808.92 from any other subheading, except from fungicides classified in Chapter 28 or 29, or subheading 3808.50. 3808.93 ...... A change to subheading 3808.93 from any other subheading, except from herbicides, anti-sprouting products or plant- growth regulators classified in Chapter 28 or 29 or subheading 3808.50; or A change to a mixture of subheading 3808.93 from any other subheading, provided that the mixture is made from two or more active ingredients and a domestic active ingredient constitutes no less than 40 percent by weight of the total ac- tive ingredients. 3808.94 ...... A change to subheading 3808.94 from any other subheading, except from disinfectants of subheading 3808.50. 3808.99 ...... A change to subheading 3808.99 from any other subheading, except from rodenticides or other pesticides classified in Chapter 28 or 29; or A change to a mixture of subheading 3808.99 from any other subheading, provided that the mixture is made from two or more active ingredients and a domestic active ingredient constitutes no less than 40 percent by weight of the total ac- tive ingredients.

******* 3824.71–3824.90 ..... A change to subheading 3824.71 from other chemical products or preparations of the chemical or allied industries (in- cluding those consisting of mixtures of natural products), not elsewhere specified or included, of subheading 3824.71 or from any other subheading, provided that no more than 60 percent by weight of the good classified in this sub- heading is attributable to one substance or compound; or A change to other chemical products or preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included of subheading 3824.71 from any other good of sub- heading 3824.71 or from any other subheading, except from other chemical products or preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included, of subheading 3824.73 through 3824.79, or 3824.90; or A change to subheading 3824.72 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more different halogens of subheading 3824.73 through 3824.79; or A change to other mixtures of halogenated hydrocarbons of subheading 3824.73 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other chemical products or preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included, of subheading 3824.71, or 3824.74 through 3824.79, or 3824.90; or A change to other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more dif- ferent halogens of subheading 3824.73 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more different halogens of subheading 3824.72, or 3824.74 through 3824.79; or A change to other mixtures of halogenated hydrocarbons of subheading 3824.74 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other chemical products or preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included, of subheading 3824.71, 3824.73, or 3824.75 through 3824.79, and except from subheading 3824.90; or A change to other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more dif- ferent halogens of subheading 3824.74 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more different halogens of subheading 3824.72 through 3824.73 and subheading 3824.75 through 3824.79; or A change to subheading 3824.75 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other chemical products or preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not else- where specified or included, of subheading 3824.71, 3824.73 through 3824.74, subheading 3824.76 through 3824.79, or 3824.90; or

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HTSUS Tariff shift and/or other requirements

A change to subheading 3824.76 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other chemical products or preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not else- where specified or included, of subheading 3824.71, 3824.73 through 3824.75, 3824.77 through 3824.79, or 3824.90; or A change to subheading 3824.77 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other chemical products or preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not else- where specified or included, of subheading 3824.71, 3824.73 through 3824.76, 3824.78 through 3824.79, or 3824.90; or A change to subheading 3824.78 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more different halogens of subheading 3824.72 through 3824.77 or 3824.79; A change to mixtures of halogenated hydrocarbons of subheading 3824.79 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or com- pound, except from other chemical products or preparations of the chemical or allied industries (including those con- sisting of mixtures of natural products), not elsewhere specified or included of subheading 3824.71, 3824.73 through 3824.78, and except from subheading 3824.90; or A change to other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more dif- ferent halogens of subheading 3824.79 from any other subheading, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound, except from other mixtures containing perhalogenated derivatives of acyclic hydrocarbons containing two or more different halogens of subheading 3824.72 through 3824.78; A change to naphthenic acids, their water-insoluble salts or their esters of subheading 3824.90 from any other good of subheading 3824.90 or from any other subheading; or A change to any other good of subheading 3824.90 from naphthenic acids, their water-insoluble salts or their esters of subheading 3824.90 or from any other subheading, provided that no more than 60 percent by weight of the good clas- sified in this subheading is attributable to one substance or compound, except from other chemical products or prep- arations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included, of subheading 3824.71, or 3824.73 through 3824.79; or A change to any other good of subheading 3824.71 through 3824.90 from any other subheading, including another sub- heading within that group, provided that no more than 60 percent by weight of the good classified in this subheading is attributable to one substance or compound.

******* 3920.10–3921.90 ..... A change to other plates, sheets, film, foil or strip, of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials of cellulose or its chemical derivatives, of vulcanized fiber, of subheading 3920.79 from any other good of subheading 3920.79 or from any other subheading; or A change to any other good of subheading 3920.79 from plates, sheets, film, foil or strip, of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials of cellulose or its chemical derivatives, of vulcanized fiber, of subheading 3920.79 or from any other subheading; or A change to any other good of subheading 3920.10 through 3921.90 from any other subheading, including another sub- heading within that group.

******* 4203–4206 ...... A change to articles of leather or of composition leather, of a kind used in machinery or mechanical appliances or for other technical uses of heading 4205 from any other good of heading 4205 or from any other heading; or A change to any other good of heading 4205 from articles of leather or of composition leather, of a kind used in machin- ery or mechanical appliances or for other technical uses of heading 4205 or from any other heading; or A change to any other good of heading 4203 through 4206 from any other heading, including another heading within that group.

******* 4412 ...... A change to heading 4412 from any other heading, except from plywood of subheading 4418.71 through 4418.79; or A change to surface-covered plywood of heading 4412 from any other plywood that is not surface covered or is surface- covered only with a clear or transparent material which does not obscure the grain, texture, or markings of the face ply. 4413–4421 ...... A change to plywood of subheading 4418.71 through 4418.79 from any other good of heading 4418 or from any other heading, except from heading 4412; or A change to any other good of subheading 4418.71 through 4418.79 from plywood of subheading 4418.71 through 4418.79 or from any other heading; or A change to any other good of heading 4413 through 4421 from any other heading, including another heading within that group.

******* 4601.21–4601.99 ..... A change to subheading 4601.21 through 4601.29 from any subheading outside that group; or A change to subheading 4601.92 through 4601.94 from any subheading outside that group; or A change to subheading 4601.99 from any other subheading.

******* 4823.61–4823.70 ..... A change to subheading 4823.61 through 4823.69 from any subheading outside that group; or A change to any other good of subheading 4823.61 through 4823.70 from any other subheading, including another sub- heading within that group.

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HTSUS Tariff shift and/or other requirements

4823.90 ...... A change to floor coverings on a base of paper or of paperboard, whether or not cut to size, from any other good of sub- heading 4823.90 or from any other subheading; or A change to self-adhesive paper, in strips or rolls, from any other good of subheading 4823.90 or from any other sub- heading; or A change to other gummed or adhesive paper, in strips or rolls, from any other good of subheading 4823.90 or from any other subheading; or A change to cards not punched and for punchcard machines from any other chapter; or A change to any other good of subheading 4823.90 from floor covering on base paper or of paperboard, self-adhesive paper, other gummed or adhesive paper, or from cards not punched and for punchcard machines of subheading 4823.90, or from any other subheading.

******* 6811.40 ...... A change to subheading 6811.40 from any other heading. 6811.81 ...... A change to subheading 6811.81 from any other heading. 6811.82 ...... A change to subheading 6811.82 from any other heading. 6811.83 ...... A change to subheading 6811.83 from any other heading. 6811.89 ...... A change to subheading 6811.89 from any other heading. 6812.80 ...... A change to clothing, clothing accessories, footwear or headgear of subheading 6812.80 or from any other good of sub- heading 6812.80 or from any other subheading, except from subheading 6812.91; or A change to paper, millboard or felt of subheading 6812.80 from any other subheading or from any other good of sub- heading 6812.80, except from compressed asbestos fiber jointing of subheading 6812.80 or from subheading 6812.92 through 6812.93; or A change to compressed asbestos fiber jointing, in sheets or rolls, of subheading 6812.80 from any other subheading or from any other good of subheading 6812.80, except from paper, millboard or felt of subheading 6812.80 or from sub- heading 6812.92 through 6812.93; or A change to other fabricated asbestos fibers, mixtures with a basis of asbestos and magnesium carbonate, or to articles of such mixtures or of asbestos, whether or not reinforced, other than goods of heading 6811 or 6813 from any other heading; or A change to yarn or thread of subheading 6812.80 from any other subheading including from any other good of sub- heading 6812.80; or A change to cords or string, whether or not plaited, of subheading 6812.80 from any other subheading or from any other good of subheading 6812.80, except from yarn or thread of subheading 6812.80; or A change to woven or knitted fabric of subheading 6812.80 from any other subheading including from any other good of subheading 6812.80. 6812.91 ...... A change to subheading 6812.91 from any other subheading, except from other clothing, clothing accessories or head- gear of subheading 6812.80. 6812.92–6812.93 ..... A change to subheading 6812.92 through 6812.93 from any subheading outside that group, except from subheading 6812.80. A change to subheading 6812.99 from any other heading; or 6812.99 ...... A change to yarn or thread of subheading 6812.99 from any other subheading including from any other good of sub- heading 6812.99; or A change to cords or string, whether or not plaited of subheading 6812.99 from any other subheading or from any other good of subheading 6812.99, except from yarn or thread of subheading 6812.99; or A change to woven or knitted fabric of subheading 6812.99 from any other subheading including from any other good of subheading 6812.99.

******* 7013–7018 ...... A change to heading 7013 through 7018 from any other heading, including another heading within that group; or A change from uncut and unpolished glassware blanks classified in heading 7013 to cut and polished glassware classi- fied in heading 7013, provided that there has been a substantial amount of both cutting and polishing operations in a single country.

******* 7020 ...... A change to glass inners for vacuum flasks or for other vacuum vessels of heading 7020 from any other good of heading 7020 or from any other heading; or A change to any other good of heading 7020 from any other heading, except from heading 7010 through 7018.

******* 7321.11–7321.89 ..... A change to subheading 7321.11 through 7321.89 from any other heading; or A change to subheading 7321.11 through 7321.89 from subheading 7321.90, except when that change is pursuant to General Rule of Interpretation 2(a).

******* 7411–7418 ...... A change to cooking or heating apparatus of a kind used for domestic purposes, non-electric and parts thereof, of cop- per, of subheading 7418.19 from any other good of subheading 7418.19 or from any other subheading; or A change to any other good of subheading 7418.19 from cooking or heating apparatus of a kind used for domestic pur- poses, non-electric and parts thereof, of copper, of subheading 7418.19 or from any other subheading; or A change to any other good of heading 7411 through 7418 from any other heading, including another heading within that group. 7419.10–7419.99 ..... A change to cloth, grill or netting of copper wire or to expanded metal of copper of subheading 7419.99 from any other good of subheading 7419.99 or from any other subheading; or A change to any other good of subheading 7419.99 from cloth, grill or netting of copper wire or expanded metal of cop- per of subheading 7419.99; or

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HTSUS Tariff shift and/or other requirements

A change to copper springs of subheading 7419.99 from any other good of subheading 7419.99 or from any other sub- heading; or A change to any other good of subheading 7419.99 from copper springs of subheading 7419.99; or A change to any other good of subheading 7419.10 through 7419.99 from any other subheading, including another sub- heading within that group.

******* 7801–7802 ...... A change to heading 7801 through 7802 from any other heading, including another heading within that group.

******* 7806 ...... A change to any of the following goods classified in heading 7806 from materials also classified in heading 7806: tubes except from pipes; pipes except from tubes; tube or pipe fittings except from tubes or pipes; cables/stranded wire/plait- ed bands; or A change to lead bars, rods, profiles, or wire of heading 7806 from any other good of heading 7806 or from any other heading; or A change to any other good of heading 7806 from lead bars, rods, profiles, or wire of heading 7806 or from any other heading. 7901–7905 ...... A change to any of the following goods classified in heading 7901 through 7905, including from materials also classified in heading 7901 through 7905: Matte; unwrought; powder, except from flakes; flakes except from powder; bars except from rods or profiles; rods except from bars or profiles; profiles except from rods or bars; wire except from rod; plates except from sheets or strip; sheets except from plate or strip; strip except from sheets or plate; foil except from sheet or strip; or A change to any other good of heading 7901 through 7905 from any other heading, including another heading within that group. 7907 ...... A change to any of the following goods classified in heading 7907 from materials also classified in heading 7907: tubes except from pipes; pipes except from tubes; tube or pipe fittings except from tubes or pipes; or A change to tubes, pipes and tube or pipe fittings of heading 7907 from any other good of heading 7907; or A change to any other good of heading 7907 from tubes, pipes or tube or pipe fittings of heading 7907 or from any other heading.

******* 8002–8003 ...... A change to any of the following goods classified in heading 8002 through 8003, from materials also classified in heading 8002 through 8003: Bars except from rods or profiles; rods except from bars or profiles; profiles except from rods or bars; wire except from rod; or A change to heading 8002 through 8003 from any other heading, including another heading within that group. 8007 ...... A change to any of the following goods classified in heading 8007 from other materials also classified in heading 8007: Tubes except from pipes; pipes except from tubes; tube or pipe fittings except from tubes or pipes; cables/stranded wire/ plaited bands; plates except from sheets or strip; sheets except from plate or strip; strip except from sheet or plate; or A change to any of the following goods classified in heading 8007 from other materials also classified in heading 8007: foil from powder or flakes; powder from foil; flakes from foil; or A change to foil, powder or flakes from any other good of heading 8007 or from any other heading; or A change to plates, sheet or strip from any other good of heading 8007 or from any other heading; or A change to any other good of heading 8007 from plates, sheet, strip, foil, powder or flakes of heading 8007 or from any other heading. 8101.10–8101.94 ..... A change to subheading 8101.10 through 8101.94 from any other subheading, including another subheading within that group; or A change to any of the following goods classified in subheading 8101.10 through 8101.94 from materials also classified in subheading 8101.10 through 8101.94: Matte; unwrought. 8101.96 ...... A change to subheading 8101.96 from any other subheading, except from bars and rods, other than those obtained by simple sintering, profiles, plates, sheets, strip or foil of subheading 8101.99. 8101.99 ...... A change to any of the following goods classified in subheading 8101.99, including from materials also classified in sub- heading 8101.99: Tubes except from pipes; pipes except from tube; tube or pipe fittings except from tubes or pipes; cables/stranded wire/ plaited bands; bars, other than those obtained simply by sintering, except from rods, other than those obtained simply by sintering, or profiles; rods, other than those obtained simply by sintering, except from bars, other than those obtained simply by sintering, or profiles; profiles except from rods or bars, other than those obtained simply by sintering; plates except from sheets or strip; sheets except from plate or strip; strip except from sheets or plate; foil except from sheet or strip; or A change to any other good of subheading 8101.99 from bars or rods, other than those obtained simply by sintering, pro- files, plates, sheet, strip or foil or from any other subheading.

******* 8103.20–8113.00 ..... A change to germanium of subheading 8112.92 through 8112.99 from any other good of subheading 8112.92 through 8112.99 or from any other subheading; or A change to vanadium of subheading 8112.92 through 8112.99 from any other good of subheading 8112.92 through 8112.99 or from any other subheading; or A change to any other good of subheading 8112.92 through 8112.99 from germanium or vanadium of subheading 8112.92 through 8112.99 or from any other subheading; or A change to any of the following goods classified in subheading 8103.20 through 8113.00, including from materials also classified in subheading 8103.20 through 8113.00: Matte; unwrought; powder except from flakes; flakes except from powder; bars except from rods or profiles; rods except from bars or profiles; profiles except from rods or bars; wire ex- cept from rod; plates except from sheets or strip; sheets except from plate or strip; strip except from sheets or plate; foil except from sheet or strip; tubes except from pipes; pipes except from tubes; tube or pipe fittings except from tubes or pipes; cables/stranded wire/plaited bands; or

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HTSUS Tariff shift and/or other requirements

A change to any other good of subheading 8103.20 through 8113.00 from any other subheading, including another sub- heading within that group.

******* 8418.10–8418.91 ..... A change to absorption-type electrical refrigerators of subheading 8418.29 from any other good of subheading 8418.29 or from any other subheading; or A change to any other good of subheading 8418.29 from absorption-type electrical refrigerators of subheading 8418.29 or from any other subheading; or A change to heat pumps of subheading 8418.61 from any other subheading, except from compression type units whose condensers are heat exchangers of subheading 8418.69; or A change to compression type units of subheading 8418.69 from any other subheading, except from heat pumps of sub- heading 8418.61 or from any other good of subheading 8418.69; or A change to other refrigerating or freezing equipment of subheading 8418.69 from any other subheading, except from heat pumps of subheading 8418.61; or A change to any other good of subheading 8418.69 from compression type units of subheading 8418.69 or from any other subheading; or A change to any other good of subheading 8418.10 through 8418.91 from any other subheading, including another sub- heading within that group.

******* 8425.11–8430.69 ..... A change to pit-head winding gears or to winches specially designed for use underground of subheading 8425.31 through 8425.39 from any other good of subheading 8425.31 through 8425.39 or from any other subheading; or A change to any other good of subheading 8425.31 through 8425.39 from pit-head winding gears or to winches specially designed for use underground of subheading 8425.31 through 8425.39 or from any other subheading; or A change to mine wagon pushers, locomotive or wagon traversers, wagon tippers and similar railway wagon handling equipment of subheading 8428.90 from any other good of subheading 8428.90 or from any other subheading; or A change to any other good of subheading 8428.90 from mine wagon pushers, locomotive or wagon traversers, wagon tippers and similar railway wagon handling equipment of subheading 8428.90 or from any other subheading; or A change to any other good of subheading 8425.11 through 8430.69 from any other subheading, including another sub- heading within that group.

******* 8442.30 ...... A change to subheading 8442.30 from any other subheading.

******* 8443.11–8443.39 ..... A change to printing machinery of subheading 8443.11 through 8443.19 from any other subheading outside that group, except from machines for uses ancillary to printing of subheading 8443.91; or A change to printer units of ADP machines of subheading 8443.31 through 8443.32 from any other good of subheading 8443.31 through 8443.32 or from any other subheading, except from parts and accessories suitable for use solely or principally with the machines of subheading 8443.31 through 8443.32 of subheading 8443.99 when that change is the result of simple assembly, or from subheading 8504.90 or heading 8473, when that change is the result of simple as- sembly, and except from other units of ADP machines of subheading 8517.62 through 8517.69 or heading 8528, or from subheading 8471.60 through 8472.90; or A change to facsimile machines of subheading 8443.31 through 8443.32 from any other good of subheading 8443.31 through 8443.32 or from any other subheading, except from teleprinters of subheading 8443.32, or from subheading 8443.99 or 8517.70 when the change is the result of a simple assembly, or from subheading 8517.11 through 8517.69; or A change to teleprinters of subheading 8443.32 from any other good of subheading 8443.32 or from any other sub- heading, except from facsimile machines of subheading 8443.31 through 8443.32, and except from subheading 8443.99 or 8517.70 when the change is the result of a simple assembly , or from subheading 8517.11 through 8517.69; or A change to printing machines of subheading 8443.39 from any other subheading, except from subheading 8443.11 through 8443.39, or from machines for uses ancillary to printing of subheading 8443.91; or A change to electrostatic photocopying apparatus of subheading 8443.39 from any other good of subheading 8443.39 or from any other subheading; or A change to other photocopying apparatus of subheading 8443.39 from any other good of subheading 8443.39 or from any other subheading; or A change to thermo-copying apparatus of subheading 8443.39 from any other good of subheading 8443.39 or from any other subheading. 8443.91 ...... A change to machines for uses ancillary to printing from any other good of subheading 8443.91 or from any other sub- heading, except subheading 8443.11 through 8443.19; or A change to any other good from any other heading, except from heading 8501 when resulting from a simple assembly. 8443.99 ...... A change to accessory or auxiliary machines which are intended for attachment to an electrostatic photocopier and which do not operate independently of such photocopier from any other good of subheading 8443.99, provided that change is not the result of a simple assembly, or from any other subheading, except from subheading 8443.31 through 8443.32, 8471.60 through 8472.90, 8504.90 or from heading 8473 or from other units of ADP machines of subheading 8517.62 through 8517.69 or heading 8528 when that change is the result of a simple assembly; or A change to parts or accessories of printers of subheading 8443.31 or 8443.32 from any other heading except from heading 8414, 8501, 8504, 8534, 8541, or 8542 when resulting from a simple assembly, or from heading 8473 or sub- heading 8517.70; or A change to parts of facsimile machines from any other good of subheading 8443.99 or from any other subheading, ex- cept from parts for teleprinters, including teletypewriters, of subheading 8443.99 or from heading 8517; or A change to parts for teleprinters, including teletypewriters, from any other good of subheading 8443.99 or any other sub- heading, except from parts of facsimile machines of subheading 8443.99 or from heading 8517; or

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HTSUS Tariff shift and/or other requirements

A change to parts or accessories of photocopying apparatus incorporating an optical system or of the contact type or to thermocopying apparatus from any other good of subheading 8443.99 or from any other subheading.

******* 8456.10–8456.90 ..... A change to subheading 8456.10 through 8456.90 from any other heading, except from machine-tools for dry-etching patterns on semiconductor materials of subheading 8486.20.

******* 8469.00 ...... A change to word-processing machines of heading 8469 from any other good of heading 8469 or from any other sub- heading, except from automatic typewriters of heading 8469; or A change to automatic typewriters of heading 8469 from any other good of heading 8469 or from any other subheading, except from word-processing machines of heading 8469; or A change to other electric typewriters of heading 8469 from any other good of heading 8469 or from any other sub- heading, except from other non-electric typewriters of heading 8469; or A change to other non-electric typewriters of heading 8469 from any other good of heading 8469 or from any other sub- heading, except from other electric typewriters of heading 8469. 8470.10–8471.50 ..... A change to accounting machines of subheading 8470.90 from any other good of subheading 8470.90, provided that the change is not the result of a simple assembly; or A change to any other good of subheading 8470.90 from accounting machines of subheading 8470.90, provided that the change is not the result of a simple assembly; or A change to analog or hybrid automatic data processing machines of subheading 8471.30 through 8471.50 from any other good of subheading 8471.30 through 8471.50, provided that the change is not the result of a simple assembly; or A change to any other good of subheading 8471.30 through 8471.50 from analog or hybrid automatic data processing machines of subheading 8471.30 through 8471.50, provided that the change is not the result of a simple assembly; or A change to subheading 8470.10 through 8471.50 from any subheading within that group or from heading 8473, pro- vided that the change is not the result of a simple assembly; or A change to subheading 8470.10 through 8471.50 from any other subheading outside that group, except from heading 8473. 8471.60–8472.90 ..... A change to addressing machines or address plate embossing machines of subheading 8472.90 from any other good of subheading 8472.90, provided that the change is not the result of simple assembly; or A change to any other good of subheading 8472.90 from addressing machines and address plate embossing machines of subheading 8472.90, provided that the change is not the result of simple assembly; or A change to subheading 8471.60 through 8472.90 from any other subheading outside that group, except from sub- heading 8504.40 or from heading 8473; or A change to subheading 8471.60 through 8472.90 from any other subheading within that group or from subheading 8504.90 or from heading 8473, provided that the change is not the result of simple assembly.

******* 8479.10–8479.89 ..... A change to subheading 8479.10 through 8479.89 from any other subheading, including another subheading within that group, except from subheading 8486.10 through 8486.40.

******* 8486.10–8486.40 ..... A change to other machine-tools for working any material by removal of material, by electro-chemical, electron beam, ionic-beam or plasma arc process of subheading 8486.10 from any other good of subheading 8486.10 or from any other subheading, except from other machine-tools for working any material by removal of material, by electro-chem- ical, electron beam, ionic-beam or plasma arc process of subheading 8486.40, or from subheading 8456.90; or A change to sawing machines of subheading 8486.10 from any other good of subheading 8486.10 or from any other subheading, except from subheading 8464.10; or A change to steam or sand blasting machines and similar jet projecting machines of subheading 8486.20 from any other good of subheading 8486.20 or from any other subheading, except from steam or sand blasting machines and similar jet projecting machines of subheading 8424.30 or 8486.40; or A change to ion implanters designed for doping semiconductor materials of subheading 8486.20 from any other good of subheading 8486.20 or from any other subheading, except from ion implanters designed for doping semiconductor ma- terials of subheading 8543.10; or A change to other machine tools for dry-etching patterns on semiconductor materials of subheading 8486.20 from any other good of subheading 8486.20 or from any other subheading, except from heading 8456; or A change to direct write-on-wafer apparatus of subheading 8486.20 from any other good of subheading 8486.20 or from any other subheading, except from step or repeat aligners or other apparatus for the projection or drawing of circuit patterns on sensitized semiconductor materials of subheading 8486.20 or from subheading 9010.50; or A change to step aligners of subheading 8486.20 from any other good of subheading 8486.20 or from any other sub- heading, except from direct write-on-wafer apparatus, repeat aligners, or other apparatus for the projection or drawing of circuit patterns on sensitized semiconductor materials of subheading 8486.20 or from subheading 9010.50; or A change to repeat aligners of subheading 8486.20 from any other good of subheading 8486.20 or from any other sub- heading, except from direct write-on-wafer apparatus, step aligners, or other apparatus for the projection or drawing of circuit patterns on sensitized semiconductor materials of subheading 8486.20 or from subheading 9010.50; or A change to other apparatus for the projection or drawing of circuit patterns on sensitized semiconductor materials of subheading 8486.20 from any other good of subheading 8486.20 or from any other subheading, except from direct write-on-wafer apparatus, step or repeat aligners of subheading 8486.20 or from subheading 9010.50; or A change to centrifuges of subheading 8486.10 through 8486.20 from any other good of subheading 8486.10 through 8486.20 or from any other subheading, except from subheading 8421.19; or A change to machine tools operated by laser or other light or photon beam process of subheading 8486.10 through 8486.20 from any other good of subheading 8486.10 through 8486.20 or from any other subheading, except from sub- heading 8456.10; or

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HTSUS Tariff shift and/or other requirements

A change to grinding or polishing machines of subheading 8486.10 through 8486.20 from any other good of subheading 8486.10 through 8486.20 or from any other subheading, except from subheading 8464.20; or A change to other electrical machines or apparatus, having individual functions, of subheading 8486.10 through 8486.20 from any other good of subheading 8486.10 through 8486.20 or from any other subheading, except from other elec- trical machines or apparatus of subheading 8486.10 through 8486.20, 8486.90, 8543.70, 8542.31 through 8542.39, and except from proximity cards or tags of subheading 8523.52; or A change to other furnaces or ovens of subheading 8486.10 through 8486.20 from any other good of subheading 8486.10 through 8486.20 or from any other subheading, except from subheading 8514.30; or A change to other machine-tools for working stone, ceramics or like mineral materials or for cold working glass of sub- heading 8486.10 through 8486.30 from any other good of subheading 8486.10 through 8486.30 or from any other sub- heading, except from other machine-tools for working stone, ceramics or like mineral materials or for cold working glass of subheading 8486.10 through 8486.30, or from subheading 8464.90; or A change to other mechanical appliances for projecting, dispersing or spraying liquids or powders of subheading 8486.10 through 8486.30 from any other good of subheading 8486.10 through 8486.30 or from any other subheading, except from subheading 8424.89; or A change to steam or sand blasting machines or similar jet projecting machines of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from steam or sand blasting machines and similar jet projecting machines of subheading 8424.30 or 8486.20; or A change to pneumatic elevators or conveyors of subheading 8486.40 from any other good of subheading 8486.40 or from other subheading, except from subheading 8428.20; or A change to other belt type continuous-action elevators or conveyors for goods or materials of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from subheading 8428.33; or A change to other continuous-action elevators or conveyors for goods or materials of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from subheading 8428.39; or A change to other lifting, handling, loading or unloading machinery of subheading 8486.40 from any other good of sub- heading 8486.40 or from any other subheading, except from subheading 8428.90; or A change to other machine-tools for working any material by removal of material, by electro-chemical, electron beam, ionic-beam or plasma arc process of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from other machine-tools for working any material by removal of material, by electro-chem- ical, electron beam, ionic-beam or plasma arc process of subheading 8486.10, or from subheading 8456.90; or A change to numerically controlled bending, folding, straightening or flattening machines of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from subheading 8462.21; or A change to other bending, folding, straightening or flattening machines of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from subheading 8462.29; or A change to other machines for working hard materials of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from subheading 8465.99; or A change to injection-molding machines of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading except from subheading 8477.10; or A change to vacuum molding machines or other thermoforming machines of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from subheading 8477.40; or A change to other machinery for molding or otherwise forming of subheading 8486.40 from any other good of sub- heading 8486.40 or from any other subheading, except from subheading 8477.59; or A change to parts of welding machines or of electric machines and apparatus for hot spraying of metals or cermets of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from sub- heading 8515.90; or A change to pattern generating apparatus designed to produce masks or reticles from photoresist coated substrates of subheading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from sub- heading 9017.20; or A change to die attach apparatus, tape automated bonders or wire bonders for assembly of semiconductors of sub- heading 8486.40 from any other good of subheading 8486.40 or from any other subheading, except from subheading 8515.11 through 8515.80; or A change to deflash machines for cleaning and removing contaminants from the metal leads of semiconductor packages prior to the electroplating process (deflash by chemical bath) of subheading 8486.40 from any other good of sub- heading 8486.40 or from any other subheading, except from subheading 8465.99; or A change to other machines or mechanical appliances of subheading 8486.10 through 8486.40 from any other good of subheading 8486.10 through 8486.40 or from any other subheading, except from other machines or mechanical appli- ances of subheading 8486.10 through 8486.40, 8479.89, 8508.11 through 8508.19 or 8508.60. 8486.90 ...... A change to parts or accessories of drawing, marking-out or mathematical calculating instruments or to instruments for measuring length, for use in the hand, of subheading 8486.90 from any other good of subheading 8486.90 or from any other subheading, except from heading 9017; or A change to parts or accessories of apparatus for the projection or drawing of circuit patterns on sensitized semicon- ductor materials or of other apparatus or equipment for photographic laboratories or negatoscopes of subheading 8486.90 from any other good of subheading 8486.90 or from any other subheading, except from heading 9010; or A change to parts of electrical machines or apparatus, having individual functions, of subheading 8486.90 from any other good of subheading 8486.90 or from any other subheading, except from heading 8543; or A change to parts of machinery for working rubber or plastics or for the manufacture of products from these materials of subheading 8486.90 from any other good of subheading 8486.90 or from any other subheading, except from other parts of machinery for working rubber or plastics or for the manufacture of products from these materials of sub- heading 8486.90, or from subheading 8477.90, and except from heading 8501 when resulting from a simple assembly; or A change to tool holders or to self-opening dieheads of subheading 8486.90 from any other good of subheading 8486.90 or from any other subheading, except from subheading 8466.10 through 8466.94, work holders, dividing heads or other special attachments of subheading 8486.90, and except from heading 8501 when resulting from simple assembly; or

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HTSUS Tariff shift and/or other requirements

A change to work holders of subheading 8486.90 from any other good of subheading 8486.90, except from tool holders, dividing heads or other special attachments of subheading 8486.90, or from any other subheading, except from sub- heading 8466.10 through 8466.94, and except from heading 8501 when resulting from simple assembly; or A change to dividing heads or to other special attachments for machine tools of subheading 8486.90 from any other good of subheading 8486.90, except from tool holders or work holders of subheading 8486.90, or from any other sub- heading, except from subheading 8466.10 through 8466.94, and except from heading 8501 when resulting from simple assembly; or A change to parts or accessories for machine tools for working stone, ceramics, concrete, asbestos-cement or like min- erals or for cold working glass of subheading 8486.90 from any other good of subheading 8486.90, except from parts or accessories of: • Machine-tools for working any material by the removal of material, by laser or other light or photon beam, ultrasonic, electro-discharge, electro-chemical, electron beam, ionic-beam or plasma arc processes, or • Machine-tools for drilling, boring, milling, threading or tapping by removing metal, or for deburring, sharpening, grind- ing, honing, lapping, polishing or otherwise finishing metal or cermets by means of grinding stones, abrasives or polishing products, or • Machine-tools for planing, shaping, slotting, broaching, gear cutting, gear grinding or gear finishing, sawing, cutting- off, or for working by removing metal or cermets, or • Machine-tools for working metal by bending, folding, straightening, flattening sheathing, punching or notching (includ- ing presses), or • Machine-tools for working metal or cermets, without removing material, or • Machine-tools for working wood, cork, bone, hard rubber, hard plastics or similar hard materials (including machines for nailing, stapling, gluing or otherwise assembling), or • Machine-tools for working metal by forging, hammering or die-stamping (including presses), or • Machining centers, unit construction machines (single station) or multi-station transfer machines for working metal, or • Lathes (including turning centers), for removing metal, or • Presses for metal or working metal carbides, of subheading 8486.90, or a change from any other subheading, except from subheading 8466.10 through 8466.94, and except from heading 8501 when resulting from simple assembly; or A change to parts or accessories of machine tools (including machines for nailing, stapling, gluing or otherwise assem- bling) for working wood, cork, bone, hard rubber, hard plastics or similar hard materials of subheading 8486.90 from any other good of subheading 8486.90, except from parts or accessories of: • Machine-tools for working any material by the removal of material, by laser or other light or photon beam, ultrasonic, electro-discharge, electro-chemical, electron beam, ionic-beam or plasma arc processes, or • Machine-tools for drilling, boring, milling, threading or tapping by removing metal, or • Machine-tools for deburring, sharpening, grinding, honing, lapping, polishing or otherwise finishing metal or cermets by means of grinding stones, abrasives or polishing products, or • Machine-tools for planing, shaping, slotting, broaching, gear cutting, gear grinding or gear finishing, sawing, cutting- off, or for working by removing metal or cermets, or • Machine-tools for working metal by forging, hammering or die-stamping (including presses), or • Machine-tools for working metal by bending, folding, straightening, flattening sheathing, punching or notching (includ- ing presses), or • Machine-tools for working metal or cermets, without removing material, or • Machine-tools for working stone, ceramics, concrete, asbestos-cement or like minerals or for cold working glass, or • Machining centers, unit construction machines (single station) or multi-station transfer machines for working metal, or • Lathes (including turning centers), for removing metal, or of presses for working metal or metal carbides, of subheading 8486.90, or a change from any other subheading, except from subheading 8466.10 through 8466.94, and except from heading 8501 when resulting from simple assembly; or A change to parts or accessories of machine-tools for working any material by the removal of material, by laser or other light or photon beam, ultrasonic, electro-discharge, electro-chemical, electron beam, ionic-beam or plasma arc proc- esses, or for drilling, boring, milling, threading or tapping by removing metal, or for deburring, sharpening, grinding, honing, lapping, polishing or otherwise finishing metal or cermets by means of grinding stones, abrasives or polishing products, or for planing, shaping, slotting, broaching, gear cutting, gear grinding or gear finishing, sawing, cutting-off, or for working by removing metal or cermets, or to parts and accessories of machining centers, unit construction ma- chines (single station) or multi-station transfer machines for working metal, or of lathes (including turning centers), for removing metal, of subheading 8486.90 from any other good of subheading 8486.90 except from parts or accessories of: • Machine-tools for working metal by forging, hammering or die-stamping, or • Machine-tools for working metal by bending, folding, straightening, flattening sheathing, punching or notching (includ- ing presses), or • Machine-tools for working metal or cermets, without removing material, or • Machine-tools for working stone, ceramics, concrete, asbestos-cement or like minerals or for cold working glass, or for working wood, cork, bone, hard rubber, hard plastics or similar hard materials (including machines for nailing, sta- pling, gluing or otherwise assembling), or • Presses for working metal or metal carbides, of subheading 8486.90, or a change from any other subheading, except from subheading 8466.10 through 8466.94, and except from heading 8501 when resulting from simple assembly; or A change to parts or accessories of machine tools (including presses) for working metal by forging, hammering or die- stamping, or for working metal by bending, folding, straightening, flattening sheathing, punching or notching (including presses), or for working metal or cermets, without removing material or to parts or accessories of presses for working metal carbide of subheading 8486.90 from any other good of subheading 8486.90, except from parts or accessories of: • Machine-tools for working any material by the removal of material, by laser or other light or photon beam, ultrasonic, electro-discharge, electro-chemical, electron beam, ionic-beam or plasma arc processes, or • Machine-tools for drilling, boring, milling, threading or tapping by removing metal, or

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HTSUS Tariff shift and/or other requirements

• Machine-tools for deburring, sharpening, grinding, honing, lapping, polishing or otherwise finishing metal or cermets by means of grinding stones, abrasives or polishing products, or • Machine-tools for planing, shaping, slotting, broaching, gear cutting, gear grinding or gear finishing, sawing, cutting- off, or • Machine-tools for working by removing metal or cermets, or • Machine-tools for working stone, ceramics, concrete, asbestos-cement or like minerals or for cold working glass, or • Machine-tools for working wood, cork, bone, hard rubber, hard plastics or similar hard materials (including machines for nailing, stapling, gluing or otherwise assembling), or • Machining centers, unit construction machines (single station) or multi-station transfer machines for working metal, or • Lathes (including turning centers), for removing metal, of subheading 8486.90, or a change from any other subheading, except from subheading 8466.10 through 8466.94, and except from heading 8501 when resulting from simple assembly; or A change to parts suitable for use solely or principally with lifting, handling, loading or unloading machinery from any other good of subheading 8486.90 or from any other subheading, except from subheading 8431.39 and except from heading 8501 when resulting from simple assembly. 8487 ...... A change to heading 8487 from any other heading.

******* 8505.11–8505.20 ..... A change to subheading 8505.11 through 8505.20 from any other subheading, including another subheading within that group. 8505.90 ...... A change to electro-magnetic lifting heads of subheading 8505.90 from any other subheading or from any other good of subheading 8505.90; or A change to any other good of subheading 8505.90 from any other heading.

******* 8508.11–8508.60 ..... A change to subheading 8508.11 through 8508.60 from any other subheading, including another subheading within that group. 8508.70 ...... A change to subheading 8508.70 from any other heading, except from heading 8501 when resulting from simple assem- bly. 8509.40–8509.80 ..... A change to floor polishers or to kitchen waste disposers of subheading 8509.80 from any other good of subheading 8509.80 or from any other subheading; or A change to any other good of subheading 8509.80 from floor polishers or from kitchen waste disposers of subheading 8509.80 or from any other subheading; or A change to any other good of subheading 8509.40 through 8509.80 from any other subheading, including another sub- heading within that group.

******* 8517.11–8517.69 ..... A change to subheading 8517.12 from any other subheading, except from other transceivers, other transmission appa- ratus or other transmission apparatus incorporating reception apparatus for radiotelephony or radiotelegraphy of sub- heading 8517.61 through 8517.69, or 8525.50 through 8525.60; or A change to other transmission apparatus for radiotelephony or radiotelegraphy or to other transmission apparatus incor- porating reception apparatus for radiotelephony or radiotelegraphy of subheading 8517.61 through 8517.69 from any other good of subheading 8517.61 through 8517.69 or from any other subheading, except from subheading 8517.12, other transmission apparatus for radiotelephony or radiotelegraphy or from other transmission apparatus incorporating reception apparatus for radiotelephony or radiotelegraphy of subheading 8517.61 through 8517.69, or 8525.50 through 8525.60; or A change to other units of automatic data processing machines of subheading 8517.62 through 8517.69 from any other good of subheading 8517.62 through 8517.69 or from any other subheading, except from subheading 8504.90 or from heading 8473 or subheading 8517.70 when the change is the result of simple assembly; or A change to reception apparatus for radiotelephony or radiotelegraphy of subheading 8517.69 from any other good of subheading 8517.69 or from any other subheading, except from subheading 8527.99, or A change to any other good of subheading 8517.11 through 8517.69 from any other subheading outside that group, ex- cept from facsimile machines or teleprinters of subheading 8443.31 through 8443.32, and except from subheading 8443.99 or 8517.70 when that change is the result of simple assembly. 8517.70 ...... A change to parts or accessories of the machines of heading 8471 not incorporating a cathode ray tube from any other good of heading subheading 8517.70 or from any other subheading, except from heading 8414, 8501, 8504, 8534, 8541, or 8542 when resulting from a simple assembly, and except from heading 8473 or subheading 8443.99; or A change to antennas or antenna reflectors of a kind suitable for use with apparatus for radiotelephony or radio- telegraphy or to other parts suitable for use solely or principally with apparatus for radiotelephony or radiotelegraphy from any other good of subheading 8517.70 or from any other subheading, except from heading 8529; or A change to any other good of subheading 8517.70 from parts or accessories of the machines of heading 8471 not in- corporating a cathode ray tube, or from antennas or antenna reflectors of a kind suitable for use with apparatus for radiotelephony or radiotelegraphy, or from other parts suitable for use solely or principally with the apparatus for radiotelephony or radiotelegraphy of subheading 8517.70, or from any other heading.

******* 8519.20–8519.30 ..... A change to coin-or disc-operated record-players of subheading 8519.20 from any other subheading or from any other good of subheading 8519.20; or A change to turntables (record-decks) of subheading 8519.30 from any other subheading or from other turntables of sub- heading 8519.30; or A change to any other good of subheading 8519.20 through 8519.30 from any other subheading, including another sub- heading within that group. 8519.50 ...... A change to subheading 8519.50 from any other subheading. 8519.81 ...... A change to transcribing machines from any other subheading or from any other good of subheading 8519.81; or

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HTSUS Tariff shift and/or other requirements

A change to pocket-size cassette-players from any other subheading or from any other goods of subheading 8519.81, except from other cassette-type sound reproducing apparatus; or A change to other cassette-type sound reproducing apparatus from any other subheading or from any other goods of subheading 8519.81, except from pocket-size cassette players; or A change to digital audio type magnetic tape recorders incorporating sound reproducing apparatus from any other sub- heading or from any other good of subheading 8519.81, except from other cassette-type magnetic tape recorders in- corporating sound reproducing apparatus of subheading 8519.81; or A change to other cassette-type magnetic tape recorders incorporating sound reproducing apparatus from any other sub- heading or from any other good of subheading 8519.81, except from digital audio type magnetic tape recorders incor- porating sound reproducing apparatus of subheading 8519.81; or A change to any other good of subheading 8519.81 from any other subheading or from any other good of subheading 8519.81. 8519.89 ...... A change to other sound reproducing apparatus from any other subheading or from any other good of subheading 8519.89, except from other sound reproducing apparatus of subheading 8519.89; or A change to any other good of subheading 8519.89 from any other good of subheading 8519.89 or from any other sub- heading.

******* 8523 ...... A change to cards incorporating an electronic integrated circuit (‘‘smart’’ cards) of subheading 8523.52 from any other subheading; or A change to proximity tags of subheading 8523.52 from any other subheading or from any other good of heading 8523, except from subheading 8543.70; or A change to prepared unrecorded media for sound recording or similar recording or other phenomena, other than prod- ucts of chapter 37, from records, tapes and other recorded media for sound or other similarly recorded phenomena, excluding products of chapter 37, or from any other heading; or A change to records, tapes and other recorded media for sound or other similarly recorded phenomenon, excluding prod- ucts of chapter 37, from prepared unrecorded media for sound recording or similar recoding or other phenomena, other than products of chapter 37. 8525.50–8525.60 ..... A change to subheading 8525.50 through 8525.60 from any other subheading outside that group, except from sub- heading 8517.12, and 8517.61 through 8517.69. 8525.80 ...... A change to subheading 8525.80 from any other subheading or from any other good of subheading 8525.80, except a change to video camera recorders from television cameras.

******* 8527.19–8527.99 ..... A change to other radio broadcast receivers of subheading 8527.99 from any other good of subheading 8527.99 or from any other subheading; or A change to any other good of subheading 8527.99 from radio broadcast receivers of subheading 8527.99 or from any other subheading; or A change to any other good of subheading 8527.19 through 8527.99 from any other subheading, including another sub- heading within that group. 8528.41 ...... A change to display units from any other subheading, except from subheading 8471.60 or 8504.40, or from heading 8473 when the change is the result of a simple assembly. 8528.49 ...... A change to color video monitors from any other good of subheading 8528.49 or from any other subheading, except from subheading 8540.11 through 8540.12; or A change to black and white or other monochrome video monitors from any other good of subheading 8528.49 or from any other subheading, except from subheading 8540.11 through 8540.12. 8528.51 ...... A change to display units from any other subheading, except from subheading 8471.60 or 8504.40, or from heading 8473 when the change is the result of a simple assembly. 8528.59 ...... A change to color video monitors from any other good of subheading 8528.59 or from any other subheading, except from subheading 8540.11 through 8540.12; or A change to black and white or other monochrome video monitors from any other good of subheading 8528.59 or from any other subheading, except from subheading 8540.11 through 8540.12. 8528.61 ...... A change to display units from any other subheading, except from subheading 8471.60 or 8504.40, or from heading 8473 when the change is the result of a simple assembly. 8528.69–8528.73 ..... A change to subheading 8528.69 through 8528.73 from any other subheading, including another subheading within that group, except from subheading 8540.11 through 8540.12.

******* 8536.10–8536.90 ..... A change to other articles of plastics of subheading 8536.70 from any other good of subheading 8536.70 or from any other subheading, except from heading 3926; or A change to ceramic ferrules, not exceeding 3 mm in diameter or 25 mm in length, having a fiber channel opening and/or ceramic mating sleeves of subheading 8536.70 from any other subheading, except from heading 6901 through 6914; or A change to any other good of subheading 8536.10 through 8536.90 from any other subheading, including another sub- heading within that group.

******* 8541–8542 ...... A change to multichips of subheading 8542.31 through 8542.39 from any other good of subheading 8542.31 through 8542.39 or from any other subheading, except from subheading 8523.52 or 8543.70; or A change to a mounted chip, die or wafer classified in heading 8541 or 8542 from an unmounted chip, die, or wafer clas- sified in heading 8541 or 8542; or A change to a programmed ‘‘read only memory’’ (ROM) chip from an unprogrammed ‘‘programmable read only memory’’ (PROM) chip; or

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HTSUS Tariff shift and/or other requirements

A change to any other good of heading 8541 through 8542 from any other subheading, including another subheading within that group. 8543.10 ...... A change to subheading 8543.10 from any other subheading, except from ion implanters designed for doping semicon- ductor material of subheading 8486.20.

******* 8543.70 ...... A change to subheading 8543.70 from any other subheading, except from proximity cards or tags of subheading 8523.52 and except from other machines or apparatus of subheading 8486.10 through 8486.20. 8543.90 ...... A change to subheading 8543.90 from any other heading, except from parts of subheading 8486.90. 8544.11–8544.70 ..... A change to subheading 8544.42 from any other good of subheading 8544.42, except when resulting from simple assem- bly; or A change to subheading 8544.49 from any other good of subheading 8544.49, except when resulting from simple assem- bly; or A change to subheading 8544.11 through 8544.70 from any other subheading, including another subheading within that group, except when resulting from simple assembly.

******* 8708.29 ...... A change to subheading 8708.29 from any other subheading, except from subheading 8708.95. 8708.30 ...... A change to mounted brake linings and pads from any other heading, except from brake linings and pads of subheading 6813.20 or 6813.81; or A change to other brakes or servo-brakes or parts thereof from any other heading. 8708.40 ...... A change to parts for power trains of subheading 8708.40 from any other good of subheading 8708.40 or from any other subheading, except from parts or accessories of the goods of subheading 8708.50, 8708.80 through 8078.92, or 8708.94 through 8708.99; or A change to any other good of subheading 8708.40 from parts for power trains of subheading 8708.40, except when the change is pursuant to General Rule of Interpretation 2(a), or from any other subheading, except from parts or acces- sories of the goods of subheading 8708.50, 8708.80 through 8078.92, or 8708.94 through 8708.99, when the change is pursuant to General Rule of Interpretation 2(a). 8708.50 ...... A change to non-driving axles or parts thereof from any other good of subheading 8708.50 or from any other sub- heading; or A change to half-shafts or drive shafts or to other parts of tractors suitable for agricultural use, half-shafts or drive shafts or other parts of tractors (except road tractors), cast-iron parts, half-shafts or drive shafts, or to other parts for power trains from any other good of subheading 8708.50 or from any other subheading, except from parts or accessories of the goods of subheading 8708.40, 8708.80 through 8708.92, or 8708.94 through 8708.99; or A change to any other good of subheading 8708.50 from half-shafts or drive shafts or other parts of tractors suitable for agricultural use, half-shafts or drive shafts or other parts of tractors (except road tractors), cast-iron parts, half-shafts or drive shafts or from other parts for power trains of subheading 8708.50, except when the change is pursuant to Gen- eral Rule of Interpretation 2(a), or from non-driving axles and parts thereof of subheading 8708.50, or from any other subheading, except from parts or accessories of subheading 8708.40, 8708.80 through 8708.92, or 8708.94 through 8708.99, when the change is pursuant to General Rule of Interpretation 2(a).

******* 8708.80 ...... A change to parts for suspension systems for tractors suitable for agricultural use, parts for suspension systems for other tractors (except road tractors), parts of cast iron, or to other parts for suspension systems from any other good of sub- heading 8708.80 or from any other subheading, except from parts or accessories of the goods of subheading 8708.40, 8708.50, 8708.91, 8708.92, or 8708.94 through 8708.99; or A change to any other good of subheading 8708.80 from parts for suspension systems for tractors suitable for agricul- tural use, parts for suspension systems for other tractors (except road tractors), parts of cast iron, or from other parts for suspension systems, except when the change is pursuant to General Rule of Interpretation 2(a), or from any other subheading, except from parts or accessories of the goods of subheading 8708.40, 8708.50, 8708.91, 8708.92, or 8708.94 through 8708.99, when the change is pursuant to General Rule of Interpretation 2(a). 8708.91 ...... A change to parts of tractors suitable for agricultural use, parts of other tractors (except road tractors), parts of cast-iron or to parts or accessories from any other good of subheading 8708.91 or from any other subheading, except from other parts or accessories of subheading 8708.40, 8708.50, 8708.80, 8708.92, or 8708.94 through 8708.99; or A change to any other good of subheading 8708.91 from parts of tractors suitable for agricultural use, parts of other trac- tors (except road tractors), parts of cast-iron or from parts or accessories of the goods of subheading 8708.91, when that change is pursuant to General Rule of Interpretation 2(a), or from any other subheading, except from parts or ac- cessories of the goods of subheading 8708.40, 8708.50, 8708.80, 8708.92, or 8708.94 through 8708.99, when the change is pursuant to General Rule of Interpretation 2(a). 8708.92 ...... A change to parts of tractors suitable for agricultural use, parts of other tractors (except road tractors), parts of cast-iron or to other parts or accessories from any other good of subheading 8708.92 or from any other subheading, except from parts or accessories of the goods of subheading 8708.40, 8708.50, 8708.80, 8708.91, or 8708.94 through 8708.99; or A change to any other good of subheading 8708.92 from parts of tractors suitable for agricultural use, parts of other trac- tors (except road tractors), parts of cast-iron or from other parts or accessories of subheading 8708.92 or from any other subheading.

******* 8708.94 ...... A change to parts for steering systems of tractors suitable for agricultural use, parts for steering systems of other tractors (except road tractors), parts of cast-iron or to other parts for steering systems from any other good of subheading 8708.94 or from any other subheading, except from parts or accessories of the goods of subheading 8708.40, 8708.50, 8708.80, 8708.91, 8708.92, or 8708.95 through 8708.99; or

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HTSUS Tariff shift and/or other requirements

A change to any other good of subheading 8708.94 from parts for steering systems of tractors suitable for agricultural use, parts for steering systems of other tractors (except road tractors), parts of cast-iron or from other parts for steering systems of subheading 8708.94, except when the change is pursuant to General Rule of Interpretation 2(a), or from any other subheading, except from parts or accessories of the goods of subheading 8708.40, 8708.50, 8708.80, 8708.91, 8708.92, or 8708.95 through 8708.99, when that change is pursuant to General Rule of Interpretation 2(a).

******* 8708.95 ...... A change to inflators or modules for airbags from any other good of subheading 8708.95 or from any other subheading, except from subheading 8708.29; or A change to airbags or to other parts of tractors suitable for agricultural use, airbags or to other parts of other tractors (except road tractors), other airbags, or to other parts or accessories from inflators or modules for airbags of sub- heading 8708.95 or from any other subheading, except from parts or accessories of the goods of subheading 8708.40, 8708.50, 8708.80, 8708.91, 8708.92, 8708.94, or 8708.99. 8708.99 ...... A change to subheading 8708.99 from any other subheading, except from parts or accessories of the goods of sub- heading 8708.40, 8708.50, 8708.80, 8708.91, 8708.92, 8708.94, or 8708.95.

******* 9006.10–9006.69 ..... A change to cameras of a kind used for recording documents on microfilm, microfiche or other microforms of subheading 9006.52 through 9006.59 from any other good of subheading 9006.52 through 9006.59 or from any other subheading; or A change to any other good of subheading 9006.52 through 9006.59 from cameras of a kind used for recording docu- ments on microfilm, microfiche or other microforms of subheading 9006.52 through 9006.59 or from any other sub- heading; or A change to flashbulbs, flashcubes or the like of subheading 9006.69 from any other good of subheading 9006.69 or from any other subheading; or A change to any other good of subheading 9006.10 through 9006.69 from any other subheading, including another sub- heading within that group.

******* 9010.50 ...... A change to subheading 9010.50 from any other subheading, except from apparatus for the projection or drawing of cir- cuit patterns on sensitized semiconductor materials of subheading 8486.20.

******* 9010.90 ...... A change to subheading 9010.90 from any other heading, except from parts of apparatus for the projection or drawing of circuit patterns on sensitized semiconductor materials of subheading 8486.90.

******* 9027.10–9027.90 ..... A change to exposure meters of subheading 9027.50 from any other good of subheading 9027.50 or from any other sub- heading; or A change to any other good of subheading 9027.50 from exposure meters of subheading 9027.50; or A change to any other good of subheading 9027.10 through 9027.90 from any other subheading, including another sub- heading within that group.

******* 9030.10 ...... A change to subheading 9030.10 from any other subheading. 9030.20 ...... A change to cathode ray tube oscilloscopes or oscillographs of subheading 9030.20 from non-cathode ray tube oscillo- scopes or oscillographs of subheading 9030.20 or from any other subheading; or A change to non-cathode ray tube oscilloscopes or oscillographs of subheading 9030.20 from cathode ray tube oscillo- scopes or oscillographs of subheading 9030.20 or from any other subheading, except from subheading 9030.32, 9030.82, 9030.84, 9030.89, or 9030.90. 9030.31 ...... A change to subheading 9030.31 from any other subheading. 9030.32 ...... A change to subheading 9030.32 from any other subheading, except from non-cathode ray tube oscilloscopes or oscillographs of subheading 9030.20, or from subheading 9030.82 or 9030.84. 9030.33 ...... A change to subheading 9030.33 from any other subheading, except from subheading 9030.39. 9030.39 ...... A change to subheading 9030.39 from any other subheading, except from non-cathode ray tube oscilloscopes or oscillographs of subheading 9030.20, or from subheading 9030.32, 9030.82, or 9030.84. 9030.40 ...... A change to subheading 9030.40 from any other subheading. 9030.82–9030.84 ..... A change to subheading 9030.82 through 9030.84 from any other subheading outside that group, except from other in- struments or apparatus with a recording device of subheading 9030.20, 9030.32 or 9030.39. 9030.89 ...... A change to subheading 9030.89 from any other subheading, except from non-cathode ray tube oscilloscopes or oscillographs of subheading 9030.20 or from subheading 9030.90. 9030.90 ...... A change to subheading 9030.90 from any other subheading, except from non-cathode ray tube oscilloscopes or oscillographs of subheading 9030.20 or from subheading 9030.89. 9031.10–9031.20 ..... A change to subheading 9031.10 through 9031.20 from any other subheading, including another subheading within that group. 9031.41–9031.49 ..... A change to profile projectors of subheading 9031.49 from any other good of subheading 9030.49 or from any other sub- heading; or A change to any other good of subheading 9031.49 from a profile projector of subheading 9031.49 or from any other subheading, except from subheading 9031.41; or A change to any other good of subheading 9030.41 through 9030.49 from any other subheading outside that group.

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HTSUS Tariff shift and/or other requirements

******* 9201–9208 ...... A change to keyboard pipe organs, harmoniums or other similar keyboard instruments with free metal reeds of sub- heading 9205.90 from any other good of subheading 9205.90 or from any other subheading, except from heading 9209 when that change is pursuant to General Rule of Interpretation 2(a); or A change to accordions and similar instruments, or mouth organs of subheading 9205.90 from any other good of sub- heading 9205.90 or from any other subheading, except from heading 9209 when that change is pursuant to General Rule of Interpretation 2(a); or A change to any other good of subheading 9205.90 from keyboard pipe organs, harmoniums and other similar keyboard instruments with free metal reeds, accordions and similar instruments, or mouth organs of subheading 9205.90 or from any other subheading, except from heading 9209 when that change is pursuant to General Rule of Interpretation 2(a); or A change to any other good of heading 9201 through 9208 from any other heading, including another heading within that group, except from heading 9209 when that change is pursuant to General Rule of Interpretation 2(a).

******* 9401.10–9401.80 ..... A change to subheading 9401.51 through 9401.59 from any subheading outside that group, except from subheading 9401.10 through 9401.80, subheading 9403.10 through 9403.89, and except from subheading 9401.90 or 9403.90 when that change is pursuant to General Rule of Interpretation 2(a); or A change to subheading 9401.10 through 9401.80 from any other subheading outside that group, except from sub- heading 9403.10 through 9403.89, and except from subheading 9401.90 or 9403.90, when that change is pursuant to General Rule of Interpretation 2(a).

******* 9402 ...... A change to heading 9402 from any other heading, except from heading 9401.10 through 9401.80 or subheading 9403.10 through 9403.89, and except from subheading 9401.90 or 9403.90 when that change is pursuant to General Rule of Interpretation 2(a). 9403.10–9403.89 ..... A change to subheading 9403.10 through 9403.89 from any other subheading outside that group, except from sub- heading 9401.10 through 9403.89, and except from subheading 9401.90 or 9403.90, when that change is pursuant to General Rule of Interpretation 2(a).

******* 9503 ...... A change to wheeled toys designed to ridden by children or to dolls’ carriages or dolls’ strollers, parts or accessories thereof from any other chapter, except from heading 8714 when that change is pursuant to General Rule of Interpreta- tion 2(a); or A change to dolls, whether or not dressed, from any other subheading or from any other good of heading 9503, except from skins for stuffed dolls of heading 9503; or A change to parts or accessories of dolls representing only human beings from any other heading or from any other good of heading 9503, except from toys representing animals or non-human creatures of heading 9503; or A change to electric trains, including tracks, signals and other accessories or parts thereof from any other good of head- ing 9503 or from any other subheading; or A change to reduced-size (‘‘scale’’) model assembly kits, (excluding electric trains) or to parts or accessories thereof, from any other good of heading 9503 or from any other subheading; or A change to other construction sets and constructional toys or to parts or accessories thereof from any other good of heading 9503 or from any other subheading; or A change to toys representing animals or non-human creatures or to parts or accessories thereof from wheeled toys de- signed to be ridden by children, dolls’ carriages, or dolls representing only human beings of heading 9503 or from any other heading; or A change to toys representing animals or non-human creatures from parts or accessories of toys representing animals or non-human creatures of heading 9503; or A change to parts or accessories of toys representing animals or non-human creatures from wheeled toys designed to be ridden by children, dolls’ carriages, or dolls’ strollers of heading 9503 or from any other heading, except from heading 6111 or 6209; or A change to toy musical instruments and apparatus from any other good of heading 9503 or from any other subheading; or A change to puzzles from any other good of heading 9503 or from any other subheading; or A change to other toys, put up in sets or outfits, or to other toys and models, incorporating a motor, or to other toys from any other chapter.

******* 9507.90 ...... A change to subheading 9507.90 from any other subheading, except from heading 5004 through 5006, 5404, 5406, or 5603, or from subheading 5402.11 through 5402.49.

******* 9614.00 ...... A change to pipes or pipe bowls from any other subheading, except to roughly shaped blocks of wood or root from head- ing 4407; or A change to articles other than pipes or pipe bowls from any other heading.

* * * * * each place it appears and adding, in its ■ b. Paragraph (b)(5) is amended by ■ 3. In § 102.21: place, the word ‘‘will’’; removing the references to ‘‘6503’’ and ■ a. Paragraphs (a), (b), (c), and (d) are ‘‘9502.91’’; amended by removing the word‘‘shall’’

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■ c. The table in paragraph (e) is entries for: ‘‘6209.20.1000– for: ‘‘6209.20.1000–6209.20.5035’’, amended by removing the entries for: 6209.20.5035’’, and ‘‘9503.00.0080’’; ‘‘6505.90’’, and ‘‘9503.00.0080’’. ‘‘6209. 10.0000–6209.20.5035’’, ‘‘6503’’, ■ e. The table is further amended by The additions read as follows: and ‘‘9502.91’’; revising the entries in the ‘‘Tariff ■ d. The table in paragraph (e) is further shiftand/or other requirements’’ column § 102.21 Textile and apparel products. amended by adding, in numericalorder, adjacent to the ‘‘HTSUS’’ column listing * * * * *

HTSUS Tariff shift and/or other requirements

******* 6209.20.1000 .... (1) If the good consists of two or more component parts, a change to an assembled good of subheading 6209.20.1000 6209.20.5035 .... through 6209.20.5035 from unassembled components, provided that the change is the result of the good being wholly as- sembled in a single country, territory, or insular possession. (2) If the good does not consist of two or more component parts, a change to subheading 6209.20.1000 from any other head- ing, except from heading 5007, 5111 through 5113, 5208 through 5212, 5309 through 5311, 5407 through 5408, 5512 through 5516, 5602 through 5603, 5801 through 5806, 5809 through 5811, 5903, 5906 through 5907, and 6217, and sub- heading 6307.90, and provided that the change is the result of a fabric-making process.

******* 6505.90 ...... (1) For felt hats and other felt headgear, made from the hat bodies, hoods or plateaux of heading 6501, whether or not lined or trimmed, if the good consists of two or more components, a change to subheading 6505.90 from any other good of sub- heading 6505.90 or from any other subheading, provided that the change is the result of the good being wholly assembled in a single country, territory, or insular possession. (2) For felt hats and other felt headgear, made from the hat bodies, hoods or plateaux of heading 6501, whether or not lined or trimmed, if the good does not consist of two or more components, a change to subheading 6505.90 from any other sub- heading, except from heading 5602, and provided that the change is the result of a fabric-making process. (3) For any other good, if the good consists of two or more components, a change to subheading 6505.90 from any other heading, provided that the change is the result of the good being wholly assembled in a single country, territory, or insular possession. (4) For any other good, if the good does not consist of two or more components, a change to subheading 6505.90 from any other heading, except from heading 5007, 5111 through 5113, 5208 through 5212, 5407 through 5408, 5512 through 5516, 5602 through 5603, 5609, 5801 through 5804, 5806, 5808 through 5811, 5903, 5906 through 5907, and 6001 through 6006, and provided that the change is the result of a fabric-making process.

******* 9503.00.0080 .... For garments and accessories thereof, footwear or headgear of dolls representing only human beings, a change to an as- sembled good from unassembled components, provided that the change is the result of the good being wholly assembled in a single country, territory, or insular possession.

* * * * * Department of State or an entity point of contact for abduction cases and Dated: October 23, 2008. designated by the USCA. is responsible for processing all Hague Jayson P. Ahern, DATES: This rule is effective October 30, Convention applications seeking the return of children wrongfully removed Acting Commissioner, U.S. Customs and 2008. Border Protection. FOR FURTHER INFORMATION CONTACT: or retained in the United States from any other Hague Convention contracting [FR Doc. E8–25734 Filed 10–29–08; 8:45 am] Corrin M. Ferber, CA/OCS/PRI, U.S. state. In addition, CI is responsible for BILLING CODE 9111–14–P Department of State, Room 4039, 2201 C Street, NW., Washington, DC 20520; facilitating access rights under the telephone: (202) 736–9172 (this is not a Hague Convention. In FY 2007, CI toll free number). Hearing- or speech- processed approximately 575 cases DEPARTMENT OF STATE impaired persons may use the involving 821 children who were 22 CFR Part 94 Telecommunications Devices for the allegedly abducted from or retained Deaf (TDD) by contacting the Federal outside the United States in other Hague [Public Notice 6417] Information Relay Service at 1–800– contracting countries. Another 355 cases 877–8339. involving 518 children who were Procedures for Children Abducted to SUPPLEMENTARY INFORMATION: allegedly abducted to or retained in the the United States; Final Rule These regulations were originally published as United States from other Hague AGENCY: Department of State. an interim final rule on August 15, contracting countries were also processed in FY2007 (Hague incoming ACTION: Final rule. 2008, Volume 73, Number 159, page 47829–47831. No comments were cases). SUMMARY: The Department of State is received and we are adopting these The processing of incoming Hague adopting as a final rule the regulations regulations as final without change. Convention applications requires case regarding incoming parental abduction Since 1988, the Department of State officers to communicate with foreign cases pursuant to the Hague Convention has served as the United States Central Central Authorities about incoming on the Civil Aspects of International Authority (USCA) under the Hague cases, to determine the whereabouts of Child Abduction. Incoming cases will Convention on the Civil Aspects of children wrongfully taken to the United be processed by the United States International Child Abduction (Hague States, to attempt to promote the Central Authority (USCA), the Office of Convention). The Office of Children’s voluntary return of abducted children, Children’s Issues in the Bureau of Issues (CI) in the Department’s Bureau and to facilitate the initiation of judicial Consular Affairs within the U.S. of Consular Affairs serves as the primary proceedings with a view toward

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securing the return of abducted The Department of State originally Executive Orders 12372 and 13132: children. Many of the case officer published this as an interim final rule Federalism functions involve extensive contact with on August 15, 2008, Volume 73, This rule does not have federalism local law enforcement officials, social Number 159, page 47829–47831. No implications warranting the application service agencies, legal aid organizations comments were received. of Executive Orders No. 12372 and No. and local bar associations. 13132. It will not have substantial direct 22 CFR Part 94 is being amended to Regulatory Findings effects on the States, on the relationship reflect the fact that CI will resume case The Department is publishing this officer functions for Hague Convention between the national government and rule in accordance with the exemption the States, or on the distribution of cases where a child has been abducted contained in 5 U.S.C. 553(a)(2) for to or retained in the United States, or power and responsibilities among the matters relating to agency management various levels of government. will select an entity to assist the Central or personnel. The transfer of Authority to carry out these obligations. responsibility over incoming Hague Executive Order 12866: Regulatory Since 1996, these functions have been Convention cases back to the Office of Review carried out by the National Center for Children’s Issues at the Department of The Department of State does not Missing and Exploited Children State primarily affects internal workload (NCMEC). See 61 FR 7069 (Feb. 26, consider this final rule to be a distribution and management of the ‘‘significant regulatory action’’ under 1996); 60 FR 66073 (Dec. 21, 1995). CI USCA functions. continued to perform the remaining Executive Order 12866, section 3(f), USCA functions during this time and Regulatory Flexibility Act/Executive Regulatory Planning and Review. In retained ultimate responsibility for all Order 13272: Small Business addition, the Department is generally incoming cases, while the Department exempt from Executive Order 12866 Since this action is exempt from except to the extent that it is of State retained all inherently notice and comment procedures governmental functions, including promulgating regulations in conjunction contained in 5 U.S.C. 553, and no other with a domestic agency that are matters of Hague Convention statute mandates such procedures, no interpretation and policy direction. In significant regulatory actions. The analysis under the Regulatory Department has nevertheless reviewed March 2008, in an effort to reintegrate Flexibility Act (5 U.S.C. 601 et seq.) is these various USCA functions, CI the regulation to ensure its consistency required. However, these changes to the with the regulatory philosophy and significantly modified its agreement regulations are not expected to have a with the Department of Justice’s Office principles set forth in that Executive significant impact on a substantial of Juvenile Justice and Delinquency Order. number of small entities under the Prevention and NCMEC such that CI criteria of the Regulatory Flexibility Act, Executive Order 12988: Civil Justice would resume the case officer functions. Reform This change reflects the expansion of 5 U.S.C. 601–612, and Executive Order CI’s capacity to manage the full range of 13272, section 3(b). The Department has reviewed the case officer functions for incoming The Small Business Regulatory regulations in light of sections 3(a) and Hague abduction cases. During the past Enforcement Fairness Act of 1996 3(b)(2) of Executive Order No. 12988 to 12 years, CI has significantly increased eliminate ambiguity, minimize its capacity to carry out casework, This final rule is not a major rule, as litigation, establish clear legal including its ability to liaise with other defined by 5 U.S.C. 804, for purposes of standards, and reduce burden. congressional review of agency federal agencies; federal, state and local The Paperwork Reduction Act of 1995 law enforcement; domestic and foreign rulemaking under the Small Business social service agencies, non- Regulatory Enforcement Fairness Act of Under the Paperwork Reduction Act governmental organizations; legal aid 1996, Public Law 104–121. This rule of 1995 (PRA), 44 U.S.C. 3501, et seq., organizations; and local bar will not result in an annual effect on the Federal agencies must obtain approval associations. The Office of the Inspector economy of $100 million or more; a from OMB for most collections of General (OIG) noted in its 2005 report major increase in costs or prices; or information they conduct, sponsor, or that case officers exhibit the necessary significant adverse effects on require through regulation. The combination of tact, empathy, and competition, employment, investment, Department of State has determined that professionalism required to do this productivity, innovation, or the ability this rule does not require new collection work. Further, it noted that the ability of the United States-based companies to of information for purposes of the PRA. compete with foreign-based companies and commitment of the caseworkers was List of Subjects in 22 CFR Part 94 evident and well supported by in domestic and export markets. management team within CI. The Infants and children, Reporting and The Unfunded Mandates Reform Act of recordkeeping requirements, Treaties. findings of the OIG indicate that CI has 1995 developed the necessary tools to manage ■ For the reasons set forth in the incoming casework since entering into Section 202 of the Unfunded preamble, 22 CFR Part 94 is amended to its initial agreement with NCMEC in Mandates Reform Act of 1995 (UFMA), read as follows: 1995. This development, coupled with Public Law 104–4, 109 Stat. 64, 2 U.S.C. CI’s desire to provide consistent, 1532, generally requires agencies to PART 94—INTERNATIONAL CHILD efficient services to parents, and an prepare a statement before proposing or ABDUCTION interest in maintaining clear adopting any rule that may result in an ■ Accordingly, the interim final rule communications with foreign Central annual expenditure of $100 million or amending 22 CFR 94 which was Authorities, makes this an appropriate more (adjusted annually for inflation) by published at 73 FR 47829 on August 15, time for CI to resume responsibility for state, local, or tribal governments, or by 2008, is adopted as a final rule without handling incoming Hague Convention the private sector. This rule will not change. cases, or, alternatively, to select an result in any such expenditure nor will entity to assist in the carrying out of it significantly or uniquely affect small [FR Doc. E8–25929 Filed 10–29–08; 8:45 am] these functions. governments. BILLING CODE 4710–06–P

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DEPARTMENT OF THE INTERIOR MMS reviewed the suggested changes questioned whether submitting Form and developed a proposed rule that was MMS–143 was required in addition to Minerals Management Service published in the Federal Register on reports required by Notices to Lessees July 3, 2006 (71 FR 37874). (NTL) such as NTL 2005–G20, ‘‘Damage 30 CFR Part 250 The MMS received three comment Caused by Hurricanes Katrina and Rita.’’ [Docket ID MMS–2008–OMM–0001] letters from industry and one from a These reports are separate. The local government. Two of the industry evacuation and production curtailment RIN 1010–AD18 letters were from trade organizations statistics required by the form are that represent numerous companies general status reports. The reports Revisions to Subpart A—General; involved in the oil and gas industry in required by NTLs are detailed reports on Subpart I—Platforms and Structures; the Gulf of Mexico. These comment the findings of any surveys, inspections, and Subpart J—Pipelines and Pipeline letters can be viewed on our Web site and damage assessments as well as Rights-of-Way at: http://www.mms.gov/federalregister/ remediation plans. AGENCY: Minerals Management Service PublicComments/ One commenter felt that the (MMS), Interior. RevisionsSubpartA.htm. requirement at proposed § 250.192(b)(1), that operators submit an initial damage ACTION: Final rule. Discussion of Comments on the report within 48 hours using Form Proposed Rule SUMMARY: The MMS is amending its MMS–143, Facility/Equipment Damage regulations to require lessees, lease The proposed rule included a new Report, gave operators too little time to operators, and pipeline right-of-way requirement at § 250.192, that would check into repair availability. With holders to submit a report if a facility or require lessees, lease operators, and inadequate time to check on repair and pipeline is damaged by a hurricane or pipeline right-of-way (ROW) holders to equipment availability, the operator other natural phenomena. The final rule submit reports to MMS if their facilities contended that the form could not be also requires operators to provide are damaged by a hurricane, earthquake, completed. The commenter also assessment information on the or other natural phenomenon. One proposed that subsequent reports structural integrity of Outer Continental commenter suggested that MMS change should be submitted only when new Shelf platforms; information on the use the wording of the proposed regulation information is available or the status of unbonded flexible pipe for pipelines; to specifically require that operators changes. We partially agree and have and additional information when submit platform abandonment statistics changed both the final rule and Form installing pipeline risers on floating and reports when facilities are damaged MMS–143. Both the rule and the form platforms. The rule also incorporates an by arctic hazards such as sea ice and now make clear that the portion of the industry-developed standard concerning subzero temperatures. The rule was not form requiring an operator to estimate the in-service inspection of mooring changed. The current wording contains the time needed to return the facility/ hardware for floating drilling units. the phrase ‘‘other natural occurrences,’’ equipment to service need not be These changes will allow MMS to better which includes adverse arctic completed until the availability of regulate the safety of the oil and gas conditions. hardware and repair capability has been The MMS received several comments infrastructure, and to promptly assess established. Operators must however, regarding electronic submission of damage resulting from hurricanes or provide this information to the best of hurricane/natural occurrence other natural phenomena. their availability within 30 days of evacuation and damage statistics. submitting their initial damage report. DATES: Effective Date: This rule becomes Several commenters wanted the MMS to Subsequent reports were also changed effective on December 1, 2008. The include the eWell Permitting and incorporation by reference of the from weekly to monthly and when new Reporting System as an approved information is available. publication listed in the regulation was method for submitting this data. The The MMS made several changes to approved by the Director of the Federal final rule was changed to state that § 250.900(c) that were not part of the Register on December 1, 2008. electronic data will be acceptable when proposed rule. These changes were FOR FURTHER INFORMATION CONTACT: B.J. the MMS office is equipped to accept it. made to clarify the intent of the existing Kruse, Chief, Office of Structural and The eWell system, which we currently rule and to bring the rule into line with Technical Support at (504) 736–2634, or use for submission of electronic data, current MMS procedures. First, a time e-mail [email protected]. was not specified since the system limit of 120 days after an emergency SUPPLEMENTARY INFORMATION: On July could change in the future. Several event was added to clarify when 19, 2005, MMS published a final rule changes were made to the final rule, operators could make repairs to primary (70 FR 41556) titled ‘‘Fixed and Floating however, to make reporting structural elements without MMS Platforms and Structures and requirements more compatible with the approval. A further clarification was Documents Incorporated by Reference’’ eWell system. made that MMS must be notified of that in the Federal Register. That final rule A new form (Form MMS–143, primary structural damage within 24 expanded MMS regulations regarding Facility/Equipment Damage Report) has hours of its discovery, rather than the design, construction, and operation been developed to assist lessees, lease within 24 hours of the damage of Outer Continental Shelf (OCS) operators, and pipeline ROW holders occurrence. The rule was also changed facilities to include coverage of floating when reporting damage by a hurricane, to make clear that the notification of oil and gas production platforms. The earthquake, or other natural completed repairs to the MMS must be rule also incorporated by reference a phenomenon. Adding this requirement in writing. The report must now be number of industry-developed to the regulations, with an Office of submitted within one week after standards pertaining to floating Management and Budget (OMB) completion of repairs, rather than 24 platforms. During the process of approval for information collection (IC), hours. developing and publishing that final will allow MMS to request damage Commenters objected to the rule, comments were received from both information without the delay of requirement in proposed § 250.900(e) the public and inside MMS that obtaining OMB approval for each event. that platform approvals will be suggested additional requirements. The We received two comments that cancelled if the platform is not installed

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within 1 year of platform approval. In cases the data does not change from year 2009, with subsequent reports filed the final rule, the 1-year requirement to year. One commenter also felt that it every 5 years. applies only to standard design was overly burdensome to require an Several minor changes were made to platforms installed in the shallow annual plan to be submitted in April Subpart I which were not in the waters (less than 400 feet water depth) and a report on the results of the plan proposed rule. These items are intended of the Gulf of Mexico. For platforms to be submitted in November, as to (1) add clarity to the regulation; (2) subject to the MMS Platform required currently by § 250.919(b). The allow operators more flexibility when Verification Program, cancellation of an MMS agrees with these comments and initiating emergency repairs; (3) allow approval will be on an individual has deleted the requirement and its for more electronic submission of platform basis. For these platforms, burden hours for the April annual required documents; or (4) allow the MMS will identify the date when the inspection plan. A slightly revised rule to more closely follow the wording/ installation approval will be cancelled inspection report will still be required structure of a referenced industry (if installation has not occurred) during annually on November 1. document (e.g., API RP 2A–WSD). the application and approval process. One commenter objected to the The MMS received no comments on proposed rule’s requirement at Procedural Matters the proposed addition of API RP 2I—In- § 250.920(d) that operators must obtain Regulatory Planning and Review Service Inspection of Mooring Hardware approval from MMS before initiating (Executive Order (E.O.) 12866) for Floating Drilling Units—to the list of mitigation actions for platforms that do incorporated industry standards in not pass an assessment. We have not This final rule is not a significant rule § 250.901 (also added to the list in changed this requirement in the final as determined by the Office of § 250.198). Similarly, no comments rule. Mitigation actions resulting from Management and Budget and is not were received on the proposed failed platform assessments usually subject to review under E.O. 12866. requirement in § 250.905 that design result in repairs, modifications, or (1) This final rule will not have an safety factors for platforms be submitted decommissioning, all of which require annual effect of $100 million or more on to MMS. Both of these proposed MMS approval. However, we have the economy. It will not adversely affect changes are in the final rule. changed § 250.900(c) in the final rule to in a material way the economy, One commenter suggested that make clear that under emergency productivity, competition, jobs, the wording be added to proposed § 250.911 conditions, you may make repairs to environment, public health or safety, or that would obligate MMS to inform the primary structural elements to restore State, local, or tribal governments or lessee/applicant when approval to an existing permitted condition without communities. install a platform would be cancelled if submitting an application or receiving (2) This final rule will not create a installation had not occurred by that prior MMS approval for up to 120- serious inconsistency or otherwise date. The MMS did not change the calendar days following an event. interfere with an action taken or wording in the final rule based on this One commenter was confused by planned by another agency. comment. However, wording similar to MMS requirements in proposed (3) This final rule will not alter the that proposed by this commenter was § 250.920 for assessment of platforms. budgetary effects of entitlements, grants, added in final § 250.900(e). The commenter noted that the user fees, or loan programs or the rights The MMS accepted a comment requirements as proposed should only or obligations of their recipients. directed at proposed §§ 250.916, apply to fixed platforms and further (4) This final rule will not raise novel 250.917, and 250.918 that will reduce noted a lack of direction for operators legal or policy issues. redundancy in the final Certified wishing to obtain approval for assessing Regulatory Flexibility Act Verification Agent (CVA) report by no their platform to either the medium (A– longer requiring recommendations that 2) or low (A–3) consequence-of-failure The Department of the Interior have already been communicated exposure category. The MMS agrees certifies that this final rule will not have through earlier CVA reports. with these comments and has modified a significant economic effect on a Two commenters requested that the final rule accordingly. Under the substantial number of small entities proposed § 250.919 concerning in- final rule, § 250.920 has been retitled under the Regulatory Flexibility Act (5 service inspections be re-written to and now refers only to fixed platforms. U.S.C. 601 et seq.). clearly exclude pipelines. The section Also, the section was largely rewritten This final rule will affect lessees and was not changed. The current wording to make clear that operators will follow operators of leases and pipeline ROW specifies that the in-service inspections standards in documents incorporated by holders in the OCS. This could include apply to the above- and below-water reference when determining the proper about 130 active Federal oil and gas structure of all platforms, as well as exposure categories for assessing their lessees. Small lessees that operate under pertinent components of the mooring platforms, and do not need MMS this rule fall under the Small Business system for floating platforms. approval before assessing their Administration’s (SBA) North American Subpart I currently requires that platforms at the A–2 or A–3 level. Industry Classification System (NAICS) lessees and operators develop an in- However, if MMS objects to the codes 211111, Crude Petroleum and service inspection plan for platforms assessment level used, operators may be Natural Gas Extraction, and 213111, (§ 250.919). The plan must show in required to re-design or modify the Drilling Oil and Gas Wells. For these detail the type, extent, and frequency of platform. Changes were also made to the NAICS code classifications, a small the inspections lessees and operators section to more closely track the company is one with fewer than 500 will conduct on platforms. The wording of API RP 2A–WSD. employees. Based on these criteria, an proposed rule required that the plan be One commenter objected to the estimated 70 percent of these companies submitted to the Regional Supervisor for proposed requirement in § 250.920(f) of are considered small. A pipeline approval each year by April 1. submitting an annual list of all company (non-producer) is a small Commenters questioned the rationale platforms and appropriate data to entity if it is a liquid pipeline company for requiring a complete list of all the support their assessment category. The with fewer than 1,500 employees, or a platforms (and supporting data) to be MMS agrees and has delayed the initial natural gas pipeline company with gross submitted annually, when in many filing of this report until November 1, annual receipts of $6.5 million or less.

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There are approximately 20 pipeline the ability of U.S.-based enterprises to The title of the collection of companies operating on the OCS that compete with foreign-based enterprises. information for the rule is ‘‘Revisions to meet these criteria. This rule, therefore, Subpart A—General; Subpart I— Unfunded Mandates Reform Act will affect a substantial number of small Platforms and Structures; and Subpart entities. This rule will not impose an J—Pipelines and Pipeline Rights-of- This final rule will not have a unfunded mandate on State, local, or Way.’’ Respondents are approximately significant economic effect on a tribal governments or the private sector 130 Federal OCS lessees, operators, and substantial number of small entities of more than $100 million per year. The their Independent Verification Agents or because the additional costs associated rule will not have a significant or other third-party reviewers of with the final rule are small compared unique effect on State, local, or tribal production facilities, as well as 207 to the normal cost of doing business on governments or the private sector. A pipeline ROW holders. Responses to the OCS. The new requirement to statement containing the information this collection are mandatory. The submit damage data after hurricanes required by the Unfunded Mandates frequency of response is on occasion. merely places into the rule a Reform Act (2 U.S.C. 1531 et seq.) is not The IC does not include questions of a requirement that MMS already requires required. sensitive nature. The MMS will protect on an ad hoc basis. The adoption of an proprietary information according to the industry-developed standard concerning Takings Implication Assessment (E.O. 12630) Freedom of Information Act (5 U.S.C. the inspection of mooring hardware 552) and its implementing regulations simply codifies a set of practices Under the criteria in E.O. 12630, this (43 CFR part 2), and 30 CFR 250.197, developed by the industry. rule does not have significant takings Data and information to be made Requirements for assessment of implications. The rule is not a available to the public or for limited platforms and to submit additional data governmental action capable of inspection, and 30 CFR part 252, OCS for approval of unbonded flexible pipe interference with constitutionally Oil and Gas Information Program. have merely been changed slightly from protected property rights. A Takings existing requirements and will not have Implication Assessment is not required. The collection of information required a significant economic effect. by the current subparts A, I, and J of 30 Most of the costs for complying with Federalism (E.O. 13132) CFR 250 are approved under OMB this rule will be IC costs. The total Under the criteria in E.O. 13132, this Control Numbers 1010–0114 (expiration estimated annual burden hours for rule does not have sufficient federalism 11/30/10); 1010–0149 (expiration 06/30/ responding to the IC requirements in the implications to warrant the preparation 2011); and 1010–0050 (expiration 3/31/ rule are 49,987. At an estimated cost of of a Federalism Assessment. This rule 09), respectively. $74 per hour, the industry-wide cost for will not substantially and directly affect The changes between the proposed the IC burden would be slightly more the relationship between the Federal rule and the final rule are primarily than $3.5 million. and State governments. To the extent based on comments received and they Your comments are important. The that State and local governments have a are as follows: Small Business and Agriculture role in OCS activities, this rule will not • Remove the burden hours for Regulatory Enforcement Ombudsman affect that role. A Federalism § 250.192(a)(3). The proposed rule and 10 Regional Fairness Boards were Assessment is not required. inadvertently stated that this was a new established to receive comments from Civil Justice Reform (E.O. 12988) requirement, but the requirement and small businesses about Federal agency burden hours have always been covered enforcement actions. The Ombudsman This rule complies with the in existing regulations (–100 hours). will annually evaluate the enforcement requirements of E.O. 12988. • activities and rate each agency’s Specifically, this rule: A reporting requirement for responsiveness to small business. If you (a) Meets the criteria of section 3(a) § 250.192(b) was changed. The wish to comment on the actions of requiring that all regulations be requirement in the proposed rule was MMS, call 1–888–734–3247. You may reviewed to eliminate errors and for weekly submissions, it has now been comment to the Small Business ambiguity and be written to minimize changed to monthly submissions (–300 Administration without fear of litigation; and hours). retaliation. Disciplinary action for (b) Meets the criteria of section 3(b)(2) • The proposed burden hours under retaliation by an MMS employee may requiring that all regulations be written § 250.919(a) for the annual April include suspension or termination from in clear language and contain clear legal inspection plan were removed (–32,500 employment with the DOI. standards. burden hours). • Small Business Regulatory Enforcement Consultation With Indian Tribes (E.O. In § 250.920(e), the requirement was Fairness Act 13175) changed from annually to every 5 years or as directed by the Regional The rule is not a major rule under 5 Under the criteria in E.O. 13175, we Supervisor (–4,160 burden hours). U.S.C. 804(2), the Small Business have evaluated this rule and determined • Several of the section numbers in Regulatory Enforcement Fairness Act. that it has no potential effects on the final regulations have changed from This rule: federally recognized Indian tribes. There a. Will not have an annual effect on are no Indian or tribal lands in the OCS. the proposed rule and the IC the economy of $100 million or more. requirements are now in different b. Will not cause a major increase in Paperwork Reduction Act (PRA) sections, but the burden hours remained costs or prices for consumers, This rule contains new IC the same. individual industries, Federal, State, or requirements; therefore, a submission to We estimate the total annual reporting local government agencies, or OMB under the PRA is required. The hour burden for the final rule to be geographic regions. OMB has approved these revisions 50,287 hours. There are no paperwork c. Will not have significant adverse under OMB Control Number 1010–0168 non-hour cost burdens associated with effects on competition, employment, (expiration October 31, 2011, for 50,287 this rulemaking. Following is a investment, productivity, innovation, or burden hours). breakdown of the burden estimate.

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Average No. Citation 30 CFR 250 rule and Reporting and recordkeeping requirement Hour burden of annual Annual burden NTL(s) responses hours

Subpart A

192; MMS–132 ...... Daily report of evacuation statistics for natural occurrence/hur- Burden approved under col- 0. ricane (Form MMS–132 in the GOMR) when circumstances lection 1010–0114. warrant; inform MMS when you resume production.

192(b) ...... Use Form MMS–143 to submit an initial damage report to the 4 ...... 100 ...... 400 Regional Supervisor. 192(b) ...... Use Form MMS–143 to submit subsequent damage reports 1 ...... 100 ...... 100 on a monthly basis until damaged structure or equipment is returned to service; immediately upon information in pre- vious reports change; date item returned to service must be in final report.

Subpart I

900(c) ...... Notify MMS with a written report listing damage and emer- Burden approved under col- 0. gency repairs; request approval of repairs; notify USCG lection 1010–0149. when appropriate.

900(e) ...... Re/Submit platform installation date and the final as-built loca- .5 ...... 140 ...... 70 tion to the Regional Supervisor within 45 days after platform installation.

905(i) ...... Provide a summary of safety factors utilized in the design of .25 ...... 331 ...... 83 the platform.

911; 916; 917; 918 ...... Submit complete schedule of all phases of design, fabrication, 40 ...... 15 ...... 600 and installation with required information; also submit Gantt Chart with required information.

916(c) ...... Submit interim and final CVA reports and recommendations Burden approved under col- 0. on design phase. lection 1010–0149.

917(a), (c) ...... Submit interim and final CVA reports and recommendations Burden approved under col- 0. on fabrication phase, including notice of fabrication proce- lection 1010–0149. dure changes or design specification modifications.

918(c) ...... Submit interim and final CVA reports and recommendations Burden approved under col- 0 on installation phase. lection 1010–0149.

919 ...... Submit annual (November 1 of each year) report on inspec- Burden approved under col- 0 tion of platforms or floating production facilities, including lection 1010–0149. summary of testing results.

919(b) NTL ...... After an environmental event, submit to Regional Supervisor 12 (initial) .... 150 ...... 1,800 initial report followed by updates and supporting information. 12 (update) .. 90 ...... 1,080

919(c) NTL ...... Submit results of inspections; obtain MMS approval before 120 ...... 200 ...... 24,000 making major repairs.

920(a) ...... Demonstrate platform is able to withstand environmental load- 20 ...... 400 ...... 8,000 ings for appropriate exposure category.

920(c) ...... Submit application and obtain approval from the Regional Su- 40 ...... 200 ...... 8,000 pervisor for mitigation actions (includes operational proce- dures).

920(e) ...... Submit a list of all platforms you operate, and appropriate 40 ...... 130 opera- 1,040 supporting data, every 5 years or as directed by the Re- tors/5 gional Supervisor. years = 26 per year.

920(f) ...... Obtain approval from the Regional Supervisor for any change 40 ...... 100 ...... 4,000 in the platform.

Subpart J

1007(a)(4)(i)(A); (B); (C) ...... Provide specified information in your pipeline application if 4 ...... 6 ...... 24 using unbonded flexible pipe.

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Average No. Citation 30 CFR 250 rule and Reporting and recordkeeping requirement Hour burden of annual Annual burden NTL(s) responses hours

1007(a)(4)(i)(D) ...... Provide results of third party IVA review in your pipeline appli- 40 ...... 1 ...... 40 cation if using unbonded flexible pipe.

1007(a)(4)(ii) ...... Provide specified information in your pipeline application ...... 30 ...... 35 ...... 1,050

Total Burden ...... 1,894 ...... 50,287

When final regulations are C section 515, 114 Stat. 2763, 2763A– during the period of shut-in and promulgated, the new IC burdens for 30 153–154). evacuation; CFR part 250 subparts A, I, and J will (3) Inform MMS when you resume Effects on the Energy Supply (E.O. be incorporated into their respective production; and 13211) collections of information for those (4) Submit the statistics either by regulations. Also, this rule incorporates This rule is not a significant energy MMS district, or the total figures for the hours and requirements already action under the definition in E.O. your operations in an MMS region. approved in 1010–0164 (26,880 burden 13211. A Statement of Energy Effects is (b) If your facility, production hours, expiration 2/28/09); therefore, not required. equipment, or pipeline is damaged by a that collection will be discontinued natural occurrence, you must: List of Subjects in 30 CFR Part 250 when the final regulations take effect. (1) Submit an initial damage report to An agency may not conduct or Continental shelf, Environmental the Regional Supervisor within 48 hours sponsor, and a person is not required to protection, Incorporation by reference, after you complete your initial respond to, a collection of information Oil and gas exploration, Pipelines, evaluation of the damage. You must use unless it displays a currently valid OMB Public lands—rights-of-way, Reporting Form MMS–143, Facility/Equipment control number. The public may and recordkeeping requirements. Damage Report, to make this and all comment, at any time, on the accuracy Dated: August 13, 2008. subsequent reports. In lieu of submitting of the IC burden in this rule and may Julie A. Jacobson, Form MMS–143 by fax or e-mail, you may submit the damage report submit any comments to the Department Deputy Assistant Secretary—Land and of the Interior, Minerals Management Minerals Management. electronically in accordance with 30 CFR 250.186(a)(3). In the report, you Service; Attention: Regulations and ■ For the reasons stated in the preamble, Standards Branch; Mail Stop 4024; 381 must: the Minerals Management Service (i) Name the items damaged (e.g., Elden Street; Herndon, Virginia 20170– (MMS) amends 30 CFR part 250 as 4817. platform or other structure, production follows: equipment, pipeline); National Environmental Policy Act (ii) Describe the damage and assess PART 250—LEASING OF SULPHUR OR the extent of the damage (major, OIL AND GAS IN THE OUTER This rule does not constitute a major medium, minor); and CONTINENTAL SHELF Federal action significantly affecting the (iii) Estimate the time it will take to quality of the human environment. The ■ replace or repair each damaged MMS has analyzed this rule under the 1. The authority citation for part 250 continues to read as follows: structure and piece of equipment and criteria of the National Environmental return it to service. The initial estimate Authority: 31 U.S.C. 9701, 43 U.S.C. 1334 Policy Act, 516 Departmental Manual need not be provided on the form until (DM) 2.3, and 516 DM 2, Appendix 1, ■ 2. Revise § 250.192 to read as follows: availability of hardware and repair and determined that it falls within the capability has been established (not to categorical exclusion for ‘‘regulations § 250.192 What reports and statistics must exceed 30 days from your initial report). * * * that are of an administrative, I submit relating to a hurricane, earthquake, (2) Submit subsequent reports or other natural occurrence? financial, legal, technical, or procedural monthly and immediately whenever nature.’’ The MMS Categorical (a) You must submit evacuation information submitted in previous Exclusion Review concluded that the statistics to the Regional Supervisor for reports changes until the damaged provisions of this rule are a natural occurrence, such as a structure or equipment is returned to administrative, procedural, and hurricane, a tropical storm, or an service. In the final report, you must technical. Furthermore, MMS earthquake. Statistics include facilities provide the date the item was returned concluded that the rulemaking does not and rigs evacuated and the amount of to service. involve an extraordinary circumstance production shut-in for gas and oil. You ■ set forth in 516 DM 2, Appendix 2. For 3. Amend § 250.198(e) by adding an must: entry in alphanumerical order in the these reasons, preparation of an (1) Submit the statistics by fax or e- environmental assessment or table for API RP 2I, In-Service mail (for activities in the MMS GOM Inspection of Mooring Hardware for environmental impact statement is not OCS Region, use Form MMS–132) as required. Floating Drilling Units, and revise the soon as possible when evacuation entry for API RP 2A–WSD to read as Data Quality Act occurs. In lieu of submitting your follows: statistics by fax or e-mail, you may In developing this rule, we did not submit them electronically in § 250.198 Documents Incorporated by conduct or use a study, experiment, or accordance with 30 CFR 250.186(a)(3); Reference. survey requiring peer review under the (2) Submit the statistics on a daily * * * * * Data Quality Act (Pub. L. 106–554, app. basis by 11 a.m., as conditions allow, (e) * * *

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Title of documents Incorporated by reference at

******* API RP 2A WSD, Recommended Practice for Planning, Designing, and § 250.901(a), (d); § 250.908(a); § 250.919(b)(2); § 250.920(a), (b), (c), Constructing Fixed Offshore Platforms—Working Stress Design; (d), (e), (f). Twenty-first Edition, December 2000; Errata and Supplement 1, De- cember 2002; Errata and Supplement 2, October 2005, API Stock No. G2AWSD.

******* API RP 2I, In-Service Inspection of Mooring Hardware for Floating Drill- § 250.901(a), (d). ing Units; Second Edition, November 1996, Reaffirmed May 2003, API Order No. G02102.

*******

■ 4. Revise § 250.199(e)(1) as follows: § 250.199 Paperwork Reduction Act (e) * * * statements—information collection. * * * * *

30 CFR 250 subpart/title (OMB control No.) Reasons for collecting information and how used

******* (1) Subpart A, General (1010–0114), including Forms MMS–132, Evac- To inform MMS of actions taken to comply with general operational re- uation Statistics; MMS–143, Facility/Equipment Damage Report; quirements on the OCS. To ensure that operations on the OCS meet MMS–1123, Designation of Operator; MMS–1832, Notification of Inci- statutory and regulatory requirements, are safe and protect the envi- dents of Noncompliance. ronment, and result in diligent exploration, development, and produc- tion on OCS leases. To support the unproved and proved reserve estimation, resource assessment, and fair market value determina- tions. To allow MMS to rapidly assess damage and project any dis- ruption of oil and gas production from the OCS after a major natural occurrence.

*******

■ 5. Revise § 250.900(c) and (e) to read (1) For platforms not subject to the § 250.901 What industry standards must as follows: Platform Verification Program (PVP), your platform meet? MMS will cancel the approved platform (a) * * * § 250.900 What general requirements application 1 year after the approval has (9) API RP 2I, In-Service Inspection of apply to all platforms? been granted if the platform has not Mooring Hardware for Floating Drilling * * * * * been installed. If MMS cancels the Units (incorporated by reference as (c) Under emergency conditions, you approval, you must resubmit your specified in § 250.198); may make repairs to primary structural platform application and receive MMS * * * * * elements to restore an existing approval if you still plan to install the (d) * * * permitted condition without submitting platform. (22) API RP 2SM, RP for Design, an application or receiving prior MMS (2) For platforms subject to the PVP, Manufacture, Installation, and approval for up to 120-calendar days cancellation of an approval will be on Maintenance of Synthetic Fiber Ropes following an event. You must notify the an individual platform basis. For these for Offshore Mooring; Regional Supervisor of the damage that platforms, MMS will identify the date (23) API RP 2I, In-Service Inspection occurred within 24 hours of its when the installation approval will be of Mooring Hardware for Floating discovery, and you must provide a cancelled (if installation has not Drilling Units. written completion report to the occurred) during the application and ■ 7. Amend § 250.905 by: Regional Supervisor of the repairs that approval process. If MMS cancels your ■ A. Adding a second sentence to the were made within 1 week after installation approval, you must introductory text; completing the repairs. If you make resubmit your platform application and ■ B. Redesignating current paragraphs emergency repairs on a floating receive MMS approval if you still plan (i), (j), and (k), as paragraphs (j), (k), and platform, you must also notify the to install the platform. (l) respectively; and USCG. ■ 6. Amend § 250.901 as follows: ■ C. Adding new paragraph (i) to read * * * * * ■ A. Redesignate paragraphs (a)(9) as follows: (e) You must submit notification of through (a)(23) as (a)(10) through (a)(24), § 250.905 How do I get approval for the the platform installation date and the respectively, installation, modification, or repair of my final as-built location data to the ■ B. Add new paragraph (a)(9), platform? Regional Supervisor within 45-calendar ■ C. Revise paragraph (d)(22), * * * * * days of completion of platform ■ D. Add new paragraph (d)(23) to read In lieu of submitting the paper copies installation. as follows: specified in the table, you may submit

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your application electronically in accordance with 30 CFR 250.186(a)(3). * * * * *

Required submittal Required contents Other requirements

******* (i) Summary of safety factors uti- A summary of pertinent derived factors of safety against failure for You must submit one copy. lized. major structural members, e.g., unity check ratios exceeding 0.85 for steel-jacket platform members, indicated on ‘‘line’’ sketches of jacket sections.

*******

■ 8. Amend § 250.911 by redesignating § 250.917 What are the CVA’s primary ■ 12. Revise § 250.919 to read as current paragraphs (d) through (g), as duties during the fabrication phase? follows: paragraphs (e) through (h), respectively, * * * * * and adding new paragraph (d) to read as (c) The CVA must submit interim § 250.919 What in-service inspection requirements must I meet? follows: reports and a final report to the Regional Supervisor, and to you, during the (a) You must submit a comprehensive § 250.911 If my platform is subject to the fabrication phase in accordance with the in-service inspection report annually by Platform Verification Program, what must I November 1 to the Regional Supervisor do? approved schedule required by § 250.911(d). In each interim and final that must include: * * * * * report the CVA must: (1) A list of fixed and floating (d) Submit a complete schedule of all (1) Give details of how, by whom, and platforms you inspected in the phases of design, fabrication, and when the independent monitoring preceding 12 months; installation for the Regional activities were conducted; (2) The extent and area of inspection Supervisor’s approval. You must (2) Describe the CVA’s activities for both the above-water and include a project management timeline, during the verification process; underwater portions of the platform and Gantt Chart, that depicts when interim (3) Summarize the CVA’s findings; the pertinent components of the and final reports required by §§ 250.916, (4) Confirm or deny compliance with mooring system for floating platforms; 250.917, and 250.918 will be submitted the design specifications and the (3) The type of inspection employed to the Regional Supervisor for each approved fabrication plan; (e.g., visual, magnetic particle, phase. On the timeline, you must break- (5) In the final CVA report, make a ultrasonic testing); out the specific scopes of work that recommendation to accept or reject the (4) The overall structural condition of inherently stand alone (e.g., deck, fabrication unless such a each platform, including a corrosion mooring systems, tendon systems, riser recommendation has been previously protection evaluation; and systems, turret systems). made in an interim report; and (5) A summary of the inspection * * * * * (6) Provide any additional comments results indicating what repairs, if any, ■ 9. Revise § 250.916(c) to read as that the CVA deems necessary. were needed. (b) If any of your structures have been follows: ■ 11. Revise § 250.918(c) to read as exposed to a natural occurrence (e.g., follows: § 250.916 What are the CVA’s primary hurricane, earthquake, or tropical duties during the design phase? § 250.918 What are the CVA’s primary storm), the Regional Supervisor may * * * * * duties during the installation phase? require you to submit an initial report (c) The CVA must submit interim * * * * * of all structural damage, followed by reports and a final report to the Regional (c) The CVA must submit interim subsequent updates, which include the Supervisor, and to you, during the reports and a final report to the Regional following: design phase in accordance with the Supervisor, and to you, during the (1) A list of affected structures; approved schedule required by installation phase in accordance with (2) A timetable for conducting the § 250.911(d). In each interim and final the approved schedule required by inspections described in section 14.4.3 report the CVA must: § 250.911(d). In each interim and final of API RP 2A–WSD (incorporated by (1) Provide a summary of the material report the CVA must: reference as specified in § 250.198); and reviewed and the CVA’s findings; (1) Give details of how, by whom, and (3) An inspection plan for each (2) In the final CVA report, make a when the independent monitoring structure that describes the work you recommendation that the Regional activities were conducted; will perform to determine the condition Supervisor either accept, request (2) Describe the CVA’s activities of the structure. modifications, or reject the proposed during the verification process; (c) The Regional Supervisor may also design unless such a recommendation (3) Summarize the CVA’s findings; require you to submit the results of the has been previously made in an interim (4) Confirm or deny compliance with inspections referred to in paragraph report; the approved installation plan; (b)(2) of this section, including a (3) Describe the particulars of how, by (5) In the final report, make a description of any detected damage that whom, and when the independent recommendation to accept or reject the may adversely affect structural integrity, review was conducted; and installation unless such a an assessment of the structure’s ability (4) Provide any additional comments recommendation has been previously to withstand any anticipated the CVA deems necessary. made in an interim report; and environmental conditions, and any ■ 10. Revise § 250.917(c) to read as (6) Provide any additional comments remediation plans. Under follows: that the CVA deems necessary. §§ 250.900(b)(3) and 250.905, you must

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obtain approval from MMS before you approval from the Regional Supervisor ozone maintenance plan for the make major repairs of any damage for any change in purpose of the Parkersburg area. This revision amends unless you meet the requirements of platform, following the provisions of the maintenance plans’ 2009 and 2018 § 250.900(c). API RP 2A–WSD, Section 15, Re-use. motor vehicle emissions budgets ■ 13. Revise § 250.920 to read as ■ 14. Amend § 250.1007 by revising (MVEBs) by reallocating a portion of the follows: paragraph (a)(4) to read as follows: plans’ safety margins, which results in an increase in the MVEBs. The revised § 250.920 What are the MMS requirements § 250.1007 What to include in applications. plan continues to demonstrate for assessment of fixed platforms? (a) * * * maintenance of the 8-hour national (a) You must document all wells, (4) A description of any additional ambient air quality standard (NAAQS) equipment, and pipelines supported by design precautions you took to enable for ozone. EPA is approving this SIP the platform if you intend to use either the pipeline to withstand the effects of revision to the West Virginia the A–2 or A–3 assessment category. water currents, storm or ice scouring, maintenance plan for Parkersburg in Assessment categories are defined in soft bottoms, mudslides, earthquakes, accordance with the requirements of the API RP 2A–WSD, Section 17.3. If MMS permafrost, and other environmental Clean Air Act (CAA). objects to the assessment category you factors. DATES: This rule is effective on used for your assessment, you may need (i) If you propose to use unbonded to redesign and/or modify the platform December 29, 2008 without further flexible pipe, your application must notice, unless EPA receives adverse to adequately demonstrate that the include: platform is able to withstand the written comment by December 1, 2008. (A) The manufacturer’s design If EPA receives such comments, it will environmental loadings for the specification sheet; appropriate assessment category. publish a timely withdrawal of the (B) The design pressure (psi); direct final rule in the Federal Register (b) You must perform an analysis (C) An identification of the design check when your platform will have and inform the public that the rule will standards you used; and not take effect. additional personnel, additional topside (D) A review by a third-party facilities, increased environmental or ADDRESSES: Submit your comments, independent verification agent (IVA) identified by Docket ID Number EPA– operational loading, or inadequate deck according to API Spec 17J (incorporated height your platform suffered significant R03–OAR–2008–0746 by one of the by reference as specified in § 250.198), following methods: damage (e.g., experienced damage to if applicable. primary structural members or A. www.regulations.gov. Follow the (ii) If you propose to use one or more on-line instructions for submitting conductor guide trays or global pipeline risers for a tension leg platform structural integrity is adversely comments. or other floating platform, your B. E-mail: [email protected]. affected); or the exposure category application must include: changes to a more restrictive level (see C. Mail: EPA–R03–OAR–2008–0746, (A) The design fatigue life of the riser, Carol Febbo, Chief, Energy, Radiation Sections 17.2.1 through 17.2.5 of API RP with calculations, and the fatigue point 2A–WSD for a description of assessment and Indoor Environment Branch, at which you would replace the riser; Mailcode 3AP23, U.S. Environmental initiators). (B) The results of your vortex-induced (c) You must initiate mitigation Protection Agency, Region III, 1650 vibration (VIV) analysis; Arch Street, Philadelphia, Pennsylvania actions for platforms that do not pass (C) An identification of the design the assessment process of API RP 2A– 19103. standards you used; and D. Hand Delivery: At the previously- WSD. You must submit applications for (D) A description of any necessary your mitigation actions (e.g., repair, listed EPA Region III address. Such mitigation measures such as the use of deliveries are only accepted during the modification, decommissioning) to the helical strakes or anchoring devices. Regional Supervisor for approval before Docket’s normal hours of operation, and you conduct the work. * * * * * special arrangements should be made (d) The MMS may require you to [FR Doc. E8–25720 Filed 10–29–08; 8:45 am] for deliveries of boxed information. conduct a platform design basis check BILLING CODE 4310–MR–P Instructions: Direct your comments to when the reduced environmental Docket ID No EPA–R03–OAR–2008– loading criteria contained in API RP 0746. EPA’s policy is that all comments 2A–WSD Section 17.6 are not ENVIRONMENTAL PROTECTION received will be included in the public applicable. AGENCY docket without change, and may be (e) By November 1, 2009, you must made available online at submit a complete list of all the 40 CFR Part 52 www.regulations.gov, including any platforms you operate, together with all personal information provided, unless the appropriate data to support the [EPA–R03–OAR–2008–0746; FRL–8735–7] the comment includes information claimed to be Confidential Business assessment category you assign to each Approval and Promulgation of Air Information (CBI) or other information platform and the platform assessment Quality Implementation Plans; West whose disclosure is restricted by statute. initiators (as defined in API RP 2A– Virginia; Revised Motor Vehicle Do not submit information that you WSD) to the Regional Supervisor. You Emission Budgets for the Parkersburg consider to be CBI or otherwise must submit subsequent complete lists 8-Hour Ozone Maintenance Area and the appropriate data to support the protected through www.regulations.gov consequence-of-failure category every 5 AGENCY: Environmental Protection or e-mail. The www.regulations.gov Web years thereafter, or as directed by the Agency (EPA). site is an ‘‘anonymous access’’ system, Regional Supervisor. ACTION: Direct final rule. which means EPA will not know your (f) The use of Section 17, Assessment identity or contact information unless of Existing Platforms, of API RP 2A– SUMMARY: EPA is taking direct final you provide it in the body of your WSD is limited to existing fixed action to approve revisions to the West comment. If you send an e-mail structures that are serving their original Virginia State Implementation Plan comment directly to EPA without going approved purpose. You must obtain (SIP). The revision amends the 8-hour through www.regulations.gov, your e-

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mail address will be automatically U.S. Environmental Protection Agency, unforseen future growth or significant captured and included as part of the Region III, 1650 Arch Street, changes in the planning assumption comment that is placed in the public Philadelphia, Pennsylvania 19103. data which was used in developing the docket and made available on the Copies of the State submittal are original MVEBs in its September 2006 Internet. If you submit an electronic available at the West Virginia submission. comment, EPA recommends that you Department of Environmental II. Summary of SIP Revision include your name and other contact Protection, Division of Air Quality, 601 information in the body of your 57th Street, SE., Charleston, West 2009 and 2018 Motor Vehicle Emission comment and with any disk or CD-ROM Virginia 25304. Budgets you submit. If EPA cannot read your FOR FURTHER INFORMATION CONTACT: comment due to technical difficulties On August 25, 2008, the State of West Megan Goold (215) 814–2027, or by e- Virginia submitted to EPA a formal and cannot contact you for clarification, mail at [email protected]. EPA may not be able to consider your revision to its State Implementation comment. Electronic files should avoid SUPPLEMENTARY INFORMATION: Plan (SIP). The SIP revision proposes new MVEBs to reflect the reallocation of the use of special characters, any form I. Background of encryption, and be free of any defects a portion of the differences (‘‘safety or viruses. On May 8, 2007 (72 FR 25967) EPA margins’’) between the total base year Docket: All documents in the redesignated the Parkersburg area of and total projected 2009 and 2018 electronic docket are listed in the West Virginia to attainment for the 8- emissions, thus producing an increase www.regulations.gov index. Although hour ozone NAAQS. For the in the MVEBs. The base year is 2004 for listed in the index, some information is Parkersburg area, the redesignation the Parkersburg area. By increasing the not publicly available, i.e., CBI or other included approval of an 8-hour ozone MVEBs, the West Virginia Department information whose disclosure is maintenance plan, identifying on-road of Environmental Protection (WVDEP) is restricted by statute. Certain other MVEBs for VOCs and NOX, which are ensuring that transportation conformity material, such as copyrighted material, ozone precursors, used for can be demonstrated in the Parkersburg is not placed on the Internet and will be transportation planning and conformity area. The August 25, 2008 submittal, publicly available only in hard copy purposes. Subsequently, after the SIP while increasing the MVEBs, still form. Publicly available docket approval by EPA, West Virginia ensures maintenance of the NAAQS for materials are available either discovered that the MVEBs which were ozone for the Parkersburg area. electronically in www.regulations.gov or included in the previously approved Tables 1 and 2 and the discussion that in hard copy during normal business maintenance plan did not provide a follows describe the basis of the new hours at the Air Protection Division, sufficient buffer to account for MVEBs for the Parkersburg area.

TABLE 1—PARKERSBURG AREA REALLOCATION OF SAFETY MARGIN TO THE MVEBS [Tons/day]

2004 2009 2018 Base year Projection Projection

Current MVEBs in the Approved Maintenance Plan

VOC ...... 4.00 3.0 1.9 NOX ...... 5.66 4.1 2.0

Proposed MVEBs in the Revised Maintenance Plan

VOC ...... 4.00 3.8 2.4 NOX ...... 5.66 5.5 2.7

TABLE 2—PARKERSBURG AREA TOTAL EMISSIONS (POINT, AREA AND MOBILE) BEFORE AND AFTER REALLOCATION OF SAFETY MARGIN TO THE MVEBS [Tons/day]

2004 2009 2018 Base year Projection Projection

Current Total Emissions in the Approved Maintenance Plan

VOC ...... 16.7 14.0 13.6 NOX ...... 15.2 11.8 9.4

Proposed Total Emissions in the Revised Maintenance Plan

VOC ...... 16.7 14.8 14.1 NOX ...... 15.2 13.2 10.1

For the Parkersburg, West Virginia 8- 2009 and 2018 MVEBs using revised submitted to EPA on September 8, 2006. hour ozone maintenance area addressed planning data which became available The 2009 and 2018 MVEBs for VOCs herein, the WVDEP recalculated the after the original maintenance plan was and NOX emissions listed above in

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Table 1 under the Proposed MVEBs in 2008).1 EPA’s CAIR modeling was state choices, provided that they meet the Revised Maintenance Plan section included in the last Parkersburg the criteria of the Clean Air Act. will serve as the new MVEBs for maintenance plan effective June 17, Accordingly, this action merely transportation conformity planning. 2007 (72 FR 25967, May 8, 2007) as a approves state law as meeting Federal As shown in Table 1, above, WVDEP supplemental analysis however, EPA’s requirements and does not impose has proposed reallocating a portion of approval of that maintenance plan was additional requirements beyond those based on permanent and enforceable the previous safety margin into the imposed by state law. For that reason, measures (as instructed in the Calcagni MVEBs for both VOCs and NO . The this action: X memorandum, September 4, 1992). • Is not a ‘‘significant regulatory remaining surplus emissions have been These permanent and enforceable action’’ subject to review by the Office reserved as residual safety margins in measures are sufficient to provide for of Management and Budget under the total maintenance budgets to ensure continued maintenance even without Executive Order 12866 (58 FR 51735, continued maintenance of the 8-hour any CAIR reductions. EPA did note in October 4, 1993); ozone NAAQS. the approval that, in addition to • Does not impose an information To explain how the safety margins are permanent and enforceable measures, collection burden under the provisions determined and allocated, the VOC further emissions reductions in the of the Paperwork Reduction Act (44 emissions for the Parkersburg area may nonattainment area (specifically U.S.C. 3501 et seq.); be used as an example. In Table 2, listed Washington County, OH) are largely • Is certified as not having a under the Current Total Emissions in attributable to CAIR, but these significant economic impact on a the Approved Maintenance Plan reductions are not needed to substantial number of small entities section, the total 2004 base year VOC demonstrate maintenance in the area. under the Regulatory Flexibility Act (5 emissions are 16.7 tons/day (tpd), which Therefore, EPA’s approval of the August U.S.C. 601 et seq.); • is the maximum amount of VOC 25, 2008 SIP revision is not impacted by Does not contain any unfunded emissions consistent with maintenance the DC Circuit Court decision as even mandate or significantly or uniquely of the 8-hour ozone NAAQS. The total without any CAIR reductions the area affect small governments, as described projected 2009 emissions are 14.0 tpd, continues to demonstrate maintenance in the Unfunded Mandates Reform Act after reallocation of a portion of the of 1995 (Pub. L. 104–4); which provides a 2.7 tpd VOC safety • margin (i.e., the ozone NAAQS would safety margin. Does not have Federalism continue to be maintained if total VOC EPA is publishing this rule without implications as specified in Executive emissions increased as much as 2.7 tpd prior proposal because the Agency Order 13132 (64 FR 43255, August 10, above the projected 2009 emissions of views this as a noncontroversial 1999); • Is not an economically significant 14.0 tpd). In the Proposed Total amendment and anticipates no adverse comment, since no significant adverse regulatory action based on health or Emissions in the Revised Maintenance comments were received on the SIP safety risks subject to Executive Order Plan section, the total projected revision at the State level. However, in 13045 (62 FR 19885, April 23, 1997); emissions for 2009 would be increased the ‘‘Proposed Rules’’ section of today’s • Is not a significant regulatory action by 0.8 tpd through the increase in the Federal Register, EPA is publishing a subject to Executive Order 13211 (66 FR allowable mobile emissions for VOC separate document that will serve as the 28355, May 22, 2001); while still leaving a safety margin of 1.9 proposal to approve the SIP revision if • Is not subject to requirements of tpd. Therefore, even with the adverse comments are filed. This rule Section 12(d) of the National reallocation of some of the current will be effective on December 29, 2008 Technology Transfer and Advancement safety margin into the MVEBs, the State without further notice unless EPA Act of 1995 (15 U.S.C. 272 note) because of West Virginia has left a safety margin receives adverse comment by December application of those requirements would for any other unforeseen growth. 1, 2008. be inconsistent with the Clean Air Act; III. Final Action If EPA receives adverse comment, and EPA will publish a timely withdrawal in • Does not provide EPA with the EPA is approving West Virginia’s the Federal Register informing the discretionary authority to address, as August 25, 2008 SIP revision submittal public that the rule will not take effect. appropriate, disproportionate human which amends the 8-hour ozone EPA will address all public comments health or environmental effects, using maintenance plan for the Parkersburg in a subsequent final rule based on the practicable and legally permissible area. These revisions amend the proposed rule. EPA will not institute a methods, under Executive Order 12898 maintenance plans’ 2009 and 2018 second comment period on this action. (59 FR 7629, February 16, 1994). MVEBs to reflect the reallocation of a Any parties interested in commenting In addition, this rule does not have portion of the plans’ safety margins must do so at this time. tribal implications as specified by Executive Order 13175(65 FR 67249, which results in an increase in the IV. Statutory and Executive Order November 9, 2000), because the SIP is MVEBs. EPA is approving this SIP Reviews revision to the maintenance plan for the not approved to apply in Indian country Parkersburg area because the August 25, A. General Requirements located in the state, and EPA notes that 2008 submittal continues to Under the Clean Air Act, the it will not impose substantial direct demonstrate maintenance of the 8-hour Administrator is required to approve a costs on tribal governments or preempt ozone NAAQS as even after reallocation SIP submission that complies with the tribal law. of a portion of the safety margin a provisions of the Act and applicable B. Submission to Congress and the sufficient safety margin still exists to Federal regulations. 42 U.S.C. 7410(k); Comptroller General demonstrate continued attainment. 40 CFR 52.02(a). Thus, in reviewing SIP The Congressional Review Act, 5 submissions, EPA’s role is to approve EPA notes that the DC Circuit issued U.S.C. 801 et seq., as added by the Small a decision on July 11, 2008, vacating the 1 Business Regulatory Enforcement Clean Air Interstate Rule (CAIR). North EPA filed a petition for rehearing with the Court of Appeals for the District of Columbia Circuit on Fairness Act of 1996, generally provides Carolina v. EPA, 531 F.3d 896 (DC Cir. September 24, 2008. that before a rule may take effect, the

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agency promulgating the rule must 2008. Filing a petition for Dated: October 20, 2008. submit a rule report, which includes a reconsideration by the Administrator of Donald S. Welsh, copy of the rule, to each House of the this final rule does not affect the finality Regional Administrator, Region III. Congress and to the Comptroller General of this action for the purposes of judicial ■ 40 CFR Part 52 is amended as follows: of the United States. EPA will submit a review nor does it extend the time report containing this action and other within which a petition for judicial PART 52—[AMENDED] required information to the U.S. Senate, review may be filed, and shall not the U.S. House of Representatives, and postpone the effectiveness of such rule ■ 1. The authority citation for 40 CFR the Comptroller General of the United or action. This action to revise the part 52 continues to read as follows: States prior to publication of the rule in MVEBs for the Parkersburg 8-hour Authority: 42 U.S.C. 7401 et seq. the Federal Register. A major rule Ozone Maintenance Plan may not be cannot take effect until 60 days after it challenged later in proceedings to Subpart XX—West Virginia is published in the Federal Register. enforce its requirements. (See section This action is not a ‘‘major rule’’ as 307(b)(2).) ■ 2. In § 52.2520, the table in paragraph defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 52 (e) is amended by revising the entry for C. Petitions for Judicial Review the 8-Hour Ozone Maintenance Plan for Environmental protection, Air the Parkersburg-Marietta, WV-OH Area Under section 307(b)(1) of the Clean pollution control, Incorporation by to read as follows: Air Act, petitions for judicial review of reference, Nitrogen dioxide, Ozone, this action must be filed in the United Reporting and recordkeeping § 52.2520 Identification of plan. States Court of Appeals for the requirements, Volatile organic * * * * * appropriate circuit by December 29, compounds. (e) * * *

Applicable geo- State sub- Name of non-regulatory SIP revision graphic area mittal date EPA approval date Additional explanation

******* 8-Hour Ozone Maintenance Plan for the Wood County ...... 09/08/06 5/8/07; 72 FR 2967 Parkersburg-Marietta, WV-OH Area. 08/25/08 10/30/08; [Insert Reallocation of emissions from the exist- page number ing ‘‘safety margin’’ to increase the where the docu- available motor vehicle emission ment begins]. budgets for highway vehicles.

*******

* * * * * approve permitted emission limits that Environmental Quality, 629 East Main [FR Doc. E8–25662 Filed 10–29–08; 8:45 am] enable Virginia to meet its remaining Street, Richmond, Virginia 23219. BILLING CODE 6560–50–P NOX reduction obligations under the FOR FURTHER INFORMATION CONTACT: NOX SIP Call. Marilyn Powers, (215) 814–2308, or by e-mail at [email protected]. ENVIRONMENTAL PROTECTION DATES: Effective Date: This final rule is SUPPLEMENTARY INFORMATION: AGENCY effective on December 1, 2008. ADDRESSES: EPA has established a I. Background 40 CFR Part 52 docket for this action under Docket ID On August 21, 2008 (73 FR 49373), [EPA–R03–OAR–2007–0382, EPA–R03– Number EPA–R03–OAR–2007–0382. All EPA published a notice of proposed OAR–2008–0113; FRL–8735–6] documents in the docket are listed in rulemaking (NPR) for the the http://www.regulations.gov Web Approval and Promulgation of Air Commonwealth of Virginia. The NPR site. Although listed in the electronic proposed approval of NOX emission Quality Implementation Plans; Virginia; docket, some information is not publicly Emission Reductions From Large reductions from four large stationary IC available, i.e., confidential business engines and a large cement kiln located Stationary Internal Combustion information (CBI) or other information Engines and Large Cement Kilns in the Commonwealth. The formal SIP whose disclosure is restricted by statute. revisions were submitted by VADEQ on AGENCY: Environmental Protection Certain other material, such as February 26, 2007, March 5, 2007, Agency (EPA). copyrighted material, is not placed on March 12, 2007, March 19, 2007, and ACTION: Final rule. the Internet and will be publicly August 8, 2007. The SIP revision for available only in hard copy form. each source consists of State operating SUMMARY: EPA is approving State Publicly available docket materials are permits that contain emission limits to Implementation Plan (SIP) revisions available either electronically through ensure the Commonwealth meets its submitted by the Virginia Department of http://www.regulations.gov or in hard NOX budget for these sectors as required Environmental Quality (VADEQ). These copy for public inspection during under the NOX SIP Call. Other specific revisions require nitrogen oxides (NOX) normal business hours at the Air requirements of the State operating emission reductions from four large Protection Division, U.S. Environmental permits and the rationale for EPA’s stationary internal combustion (IC) Protection Agency, Region III, 1650 proposed action are explained in the engines and a large cement kiln located Arch Street, Philadelphia, Pennsylvania NPR and will not be restated here. No in the Commonwealth of Virginia. The 19103. Copies of the State submittal are public comments were received on the intended effect of this action is to available at the Virginia Department of NPR.

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II. General Information Pertaining to extent consistent with requirements imposed by state law. For that reason, SIP Submittals From the imposed by Federal law,’’ any person this action: Commonwealth of Virginia making a voluntary disclosure of • Is not a ‘‘significant regulatory In 1995, Virginia adopted legislation information to a state agency regarding action’’ subject to review by the Office that provides, subject to certain a violation of an environmental statute, of Management and Budget under conditions, for an environmental regulation, permit, or administrative Executive Order 12866 (58 FR 51735, assessment (audit) ‘‘privilege’’ for order is granted immunity from October 4, 1993); • Does not impose an information voluntary compliance evaluations administrative or civil penalty. The collection burden under the provisions performed by a regulated entity. The Attorney General’s January 12, 1998 of the Paperwork Reduction Act (44 legislation further addresses the relative opinion states that the quoted language U.S.C. 3501 et seq.); burden of proof for parties either renders this statute inapplicable to • Is certified as not having a asserting the privilege or seeking enforcement of any Federally authorized significant economic impact on a disclosure of documents for which the programs, since ‘‘no immunity could be substantial number of small entities privilege is claimed. Virginia’s afforded from administrative, civil, or under the Regulatory Flexibility Act (5 legislation also provides, subject to criminal penalties because granting such immunity would not be consistent U.S.C. 601 et seq.); certain conditions, for a penalty waiver • with Federal law, which is one of the Does not contain any unfunded for violations of environmental laws mandate or significantly or uniquely when a regulated entity discovers such criteria for immunity.’’ Therefore, EPA has determined that affect small governments, as described violations pursuant to a voluntary in the Unfunded Mandates Reform Act compliance evaluation and voluntarily Virginia’s Privilege and Immunity statutes will not preclude the of 1995 (Pub. L. 104–4); discloses such violations to the • Commonwealth from enforcing its Does not have Federalism Commonwealth and takes prompt and implications as specified in Executive appropriate measures to remedy the program consistent with the Federal requirements. In any event, because Order 13132 (64 FR 43255, August 10, violations. Virginia’s Voluntary 1999); Environmental Assessment Privilege EPA has also determined that a state • audit privilege and immunity law can Is not an economically significant Law, Va. Code Sec. 10.1–1198, provides regulatory action based on health or a privilege that protects from disclosure affect only state enforcement and cannot have any impact on Federal safety risks subject to Executive Order documents and information about the 13045 (62 FR 19885, April 23, 1997); content of those documents that are the enforcement authorities, EPA may at • any time invoke its authority under the Is not a significant regulatory action product of a voluntary environmental subject to Executive Order 13211 (66 FR assessment. The Privilege Law does not CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the 28355, May 22, 2001); extend to documents or information (1) • Is not subject to requirements of requirements or prohibitions of the state that are generated or developed before Section 12(d) of the National plan, independently of any state the commencement of a voluntary Technology Transfer and Advancement enforcement effort. In addition, citizen environmental assessment; (2) that are Act of 1995 (15 U.S.C. 272 note) because enforcement under section 304 of the prepared independently of the application of those requirements would Clean Air Act is likewise unaffected by assessment process; (3) that demonstrate be inconsistent with the Clean Air Act; this, or any, state audit privilege or a clear, imminent and substantial and immunity law. danger to the public health or • Does not provide EPA with the environment; or (4) that are required by III. Final Action discretionary authority to address, as law. EPA is approving State operating appropriate, disproportionate human On January 12, 1998, the health or environmental effects, using Commonwealth of Virginia Office of the permits for four Transcontinental Gas Pipeline Stations (Stations 165, 170, practicable and legally permissible Attorney General provided a legal methods, under Executive Order 12898 opinion that states that the Privilege 175, and 180) and a State operating permit for Roanoke Cement Corporation (59 FR 7629, February 16, 1994). law, Va. Code Sec. 10.1–1198, precludes In addition, this rule does not have as a revision to the Virginia SIP. The granting a privilege to documents and tribal implications as specified by NO emission reductions required by information ‘‘required by law,’’ X Executive Order 13175 (65 FR 67249, the permits address Virginia’s remaining including documents and information November 9, 2000), because the SIP is emission reduction obligations under ‘‘required by Federal law to maintain not approved to apply in Indian country the NO SIP Call. program delegation, authorization or X located in the state, and EPA notes that approval,’’ since Virginia must ‘‘enforce IV. Statutory and Executive Order it will not impose substantial direct Federally authorized environmental Reviews costs on tribal governments or preempt programs in a manner that is no less tribal law. stringent than their Federal A. General Requirements counterparts. * * *’’ The opinion Under the Clean Air Act, the B. Submission to Congress and the concludes that ‘‘[r]egarding § 10.1–1198, Administrator is required to approve a Comptroller General therefore, documents or other SIP submission that complies with the The Congressional Review Act, 5 information needed for civil or criminal provisions of the Act and applicable U.S.C. 801 et seq., as added by the Small enforcement under one of these Federal regulations. 42 U.S.C. 7410(k); Business Regulatory Enforcement programs could not be privileged 40 CFR 52.02(a). Thus, in reviewing SIP Fairness Act of 1996, generally provides because such documents and submissions, EPA’s role is to approve that before a rule may take effect, the information are essential to pursuing state choices, provided that they meet agency promulgating the rule must enforcement in a manner required by the criteria of the Clean Air Act. submit a rule report, which includes a Federal law to maintain program Accordingly, this action merely copy of the rule, to each House of the delegation, authorization or approval.’’ approves state law as meeting Federal Congress and to the Comptroller General Virginia’s Immunity law, Va. Code requirements and does not impose of the United States. Section 804, Sec. 10.1–1199, provides that ‘‘[t]o the additional requirements beyond those however, exempts from section 801 the

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following types of rules: Rules of review nor does it extend the time PART 52—[AMENDED] particular applicability; rules relating to within which a petition for judicial agency management or personnel; and review may be filed, and shall not ■ 1. The authority citation for 40 CFR rules of agency organization, procedure, postpone the effectiveness of such rule part 52 continues to read as follows: or action. This action, pertaining to EPA or practice that do not substantially Authority: 42 U.S.C. 7401 et seq. affect the rights or obligations of non- approval of NOX emission reductions agency parties. 5 U.S.C. 804(3). Because from large stationary IC engines and Subpart VV—Virginia this is a rule of particular applicability, large cement kilns in Virginia, may not be challenged later in proceedings to EPA is not required to submit a rule ■ 2. In § 52.2420, the table in paragraph report regarding this action under enforce its requirements. (See section (d) is amended by adding the entries for section 801. 307(b)(2).) Transcontinental Pipeline Station 165, C. Petitions for Judicial Review List of Subjects in 40 CFR Part 52 Transcontinental Pipeline Station 170, Air pollution control, Environmental Transcontinental Pipeline Station 175, Under section 307(b)(1) of the Clean protection, Incorporation by reference, Transcontinental Pipeline Station 180 Air Act, petitions for judicial review of Intergovernmental relations, Nitrogen and Roanoke Cement Corporation at the this action must be filed in the United dioxide, Ozone, Reporting and end of the table to read as follows: States Court of Appeals for the recordkeeping requirements. appropriate circuit by December 29, § 52.2420 Identification of plan. Dated: October 20, 2008. 2008. Filing a petition for * * * * * reconsideration by the Administrator of Donald S. Welsh, this final rule does not affect the finality Regional Administrator, Region III. (d) * * * of this action for the purposes of judicial ■ 40 CFR Part 52 is amended as follows:

EPA-APPROVED SOURCE-SPECIFIC REQUIREMENTS

State Source name Permit/order or registration number effective EPA approval date 40 CFR part 52 date citation

******* Transcontinental Pipeline Sta- Registration No. 30864...... 1/24/07 10/30/08 [Insert page number tion 165. where the document begins]. Transcontinental Pipeline Sta- Registration No. 30863...... 1/24/07 10/30/08 [Insert page number tion 170. where the document begins]. Transcontinental Pipeline Sta- Registration No. 40789...... 1/30/07 10/30/08 [Insert page number tion 175. where the document begins]. Transcontinental Pipeline Sta- Registration No. 40782...... 2/13/07 10/30/08 [Insert page number tion 180. where the document begins]. Roanoke Cement Corporation .. Registration No. 20232 ...... 6/18/07 10/30/08 [Insert page number where the document begins].

* * * * * biological agents and toxins regulated Transfer of Select Agents and Toxins’’ [FR Doc. E8–25668 Filed 10–29–08; 8:45 am] by both HHS and the U.S. Department which completed the biennial review BILLING CODE 6560–50–P of Agriculture (USDA) published on and republication of the lists of October 16, 2008, in the Federal biological agents and toxins regulated Register (73 FR 61363). This correction by the HHS, as well as those biological DEPARTMENT OF HEALTH AND inserts ‘‘Reconstructed replication agents and toxins regulated by USDA. HUMAN SERVICES competent forms of the 1918 pandemic Reconstructed 1918 Influenza virus influenza virus containing any portion (Reconstructed replication competent Centers for Disease Control and of the coding regions of all eight forms of the 1918 pandemic influenza Prevention segments (Reconstructed 1918 Influenza virus containing any portion of the virus)’’ that was inadvertently omitted coding regions of all eight segments) 42 CFR Part 73 from the list of agents and toxins was inadvertently omitted from the list regulated by only HHS. RIN 0920–AA09 of agents regulated by HHS. The DATES: This correction is effective on amendment in this document corrects Possession, Use, and Transfer of November 17, 2008. that omission and does not have a Select Agents and Toxins FOR FURTHER INFORMATION CONTACT: substantive change to the list made final Robbin Weyant, Director, Division of AGENCY: Centers for Disease Control and in the October 17, 2008 rule. Select Agents and Toxins, Centers for Prevention (CDC), Department of Health List of Subjects in 42 CFR Part 73 and Human Services (HHS). Disease Control and Prevention, 1600 Clifton Rd., MS A–46, Atlanta, GA ACTION: Biologics, Incorporation by reference, Final rule; technical correction. 30333. Telephone: (404) 718–2000. Packaging and containers, Penalties, SUMMARY: This document contains a SUPPLEMENTARY INFORMATION: On Reporting and recordkeeping technical correction to the list of select October 17, 2008, the Centers for requirements, Transportation. agents and toxins regulated by the U.S. Disease Control and Prevention (CDC), Department of Health and Human HHS published in the Federal Register Services (HHS), as well as those (73 FR 61363) ‘‘Possession, Use, and

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Dated: October 24, 2008. particular community was suspended Administrator finds that notice and Michael O. Leavitt, on the suspension date or for further public comment under 5 U.S.C. 553(b) Secretary. information, contact David Stearrett, are impracticable and unnecessary ■ For the reasons stated in the preamble, Mitigation Directorate, Federal because communities listed in this final we have amended 42 CFR part 73 as Emergency Management Agency, 500 C rule have been adequately notified. Each community receives 6-month, follows: Street, SW., Washington, DC 20472, (202) 646–2953. 90-day, and 30-day notification letters PART 73—SELECT AGENTS AND SUPPLEMENTARY INFORMATION: The NFIP addressed to the Chief Executive Officer TOXINS enables property owners to purchase stating that the community will be flood insurance which is generally not suspended unless the required ■ 1. The authority citation for part 73 otherwise available. In return, floodplain management measures are continues to read as follows: communities agree to adopt and met prior to the effective suspension Authority: 42 U.S.C. 262a; sections 201– administer local floodplain management date. Since these notifications were 204, 221 and 231 of Title II of Public Law No. aimed at protecting lives and new made, this final rule may take effect 107–188, 116 Stat. 637 (42 U.S.C. 262a). construction from future flooding. within less than 30 days. National Environmental Policy Act. ■ 2. In § 73.3(b), add ‘‘Reconstructed Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 This rule is categorically excluded from replication competent forms of the 1918 the requirements of 44 CFR part 10, pandemic influenza virus containing U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, Environmental Considerations. No any portion of the coding regions of all environmental impact assessment has eight gene segments (Reconstructed 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts been prepared. 1918 Influenza virus)’’ after Regulatory Flexibility Act. The ‘‘Monkeypox virus’’. adequate floodplain management measures with effective enforcement Administrator has determined that this [FR Doc. E8–25883 Filed 10–29–08; 8:45 am] measures. The communities listed in rule is exempt from the requirements of BILLING CODE 4163–18–P this document no longer meet that the Regulatory Flexibility Act because statutory requirement for compliance the National Flood Insurance Act of with program regulations, 44 CFR part 1968, as amended, 42 U.S.C. 4022, DEPARTMENT OF HOMELAND 59. Accordingly, the communities will prohibits flood insurance coverage SECURITY be suspended on the effective date in unless an appropriate public body the third column. As of that date, flood adopts adequate floodplain management Federal Emergency Management insurance will no longer be available in measures with effective enforcement Agency the community. However, some of these measures. The communities listed no communities may adopt and submit the longer comply with the statutory 44 CFR Part 64 required documentation of legally requirements, and after the effective date, flood insurance will no longer be [Docket No. FEMA–8047] enforceable floodplain management measures after this rule is published but available in the communities unless Suspension of Community Eligibility prior to the actual suspension date. remedial action takes place. These communities will not be Regulatory Classification. This final AGENCY: Federal Emergency suspended and will continue their rule is not a significant regulatory action Management Agency, DHS. eligibility for the sale of insurance. A under the criteria of section 3(f) of ACTION: Final rule. notice withdrawing the suspension of Executive Order 12866 of September 30, the communities will be published in 1993, Regulatory Planning and Review, SUMMARY: This rule identifies the Federal Register. 58 FR 51735. Executive Order 13132, Federalism. communities, where the sale of flood Previously, FEMA has identified the This rule involves no policies that have insurance has been authorized under Special Flood Hazard Areas (SFHAs) in federalism implications under Executive the National Flood Insurance Program these communities by publishing a Order 13132. (NFIP), that are scheduled for Flood Insurance Rate Map (FIRM). The Executive Order 12988, Civil Justice suspension on the effective dates listed date of the FIRM, if one has been Reform. This rule meets the applicable within this rule because of published, is indicated in the fourth noncompliance with the floodplain standards of Executive Order 12988. column of the table. No direct Federal Paperwork Reduction Act. This rule management requirements of the financial assistance (except assistance program. If the Federal Emergency does not involve any collection of pursuant to the Robert T. Stafford information for purposes of the Management Agency (FEMA) receives Disaster Relief and Emergency documentation that the community has Paperwork Reduction Act, 44 U.S.C. Assistance Act not in connection with a 3501 et seq. adopted the required floodplain flood) may legally be provided for management measures prior to the construction or acquisition of buildings List of Subjects in 44 CFR Part 64 effective suspension date given in this in identified SFHAs for communities Flood insurance, Floodplains. rule, the suspension will not occur and not participating in the NFIP and ■ a notice of this will be provided by identified for more than a year, on Accordingly, 44 CFR part 64 is publication in the Federal Register on a FEMA’s initial flood insurance map of amended as follows: subsequent date. the community as having flood-prone PART 64—[AMENDED] DATES: Effective Dates: The effective areas (section 202(a) of the Flood date of each community’s scheduled Disaster Protection Act of 1973, 42 ■ 1. The authority citation for part 64 suspension is the third date (‘‘Susp.’’) U.S.C. 4106(a), as amended). This continues to read as follows: listed in the third column of the prohibition against certain types of Authority: 42 U.S.C. 4001 et seq.; following tables. Federal assistance becomes effective for Reorganization Plan No. 3 of 1978, 3 CFR, FOR FURTHER INFORMATION CONTACT: If the communities listed on the date 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, you want to determine whether a shown in the last column. The 3 CFR, 1979 Comp.; p. 376.

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§ 64.6 [Amended] ■ 2. The tables published under the authority of § 64.6 are amended as follows:

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

Region IV Alabama: Grove Hill, Town of, Clarke Coun- 010039 June 3, 1976, Emerg; September 4, 1985, Oct. 16, 2008 ... Oct. 16, 2008. ty. Reg; October 16, 2008, Susp. Mississippi: George County, Unincorporated Areas 280223 May 2, 1975, Emerg; August 16, 1988, ...... *do ...... Do. Reg; October 16, 2008, Susp. Lucedale, City of, George County ...... 280056 April 24, 1975, Emerg; April 15, 1986, Reg; ...... do ...... Do. October 16, 2008, Susp. Tunica County, Unincorporated Areas .. 280236 September 5, 1974, Emerg; July 3, 1990, ...... do ...... Do. Reg; October 16, 2008, Susp. Tunica, Town of, Tunica County ...... 280196 January 28, 1974, Emerg; January 5, 1978, ...... do ...... Do. Reg; October 16, 2008, Susp. Kentucky: Lee County, Unincorporated Areas ...... 210135 July 9, 1975, Emerg; September 27, 1985, ...... do ...... Do. Reg; October 16, 2008, Susp. Beattyville, City of, Lee County ...... 210136 September 17, 1973, Emerg; July 3, 1978, ...... do ...... Do. Reg; October 16, 2008, Susp. Tennessee: Dyer County, Unincorporated Areas ..... 470284 February 18, 1975, Emerg; March 1, 1982, ...... do ...... Do. Reg; October 16, 2008, Susp. Dyersburg, City of, Dyer County ...... 470047 May 2, 1975, Emerg; March 1, 1982, Reg; ...... do ...... Do. October 16, 2008, Susp. Trimble, Town of, Dyer County ...... 470223 May 30, 1986, Emerg; June 4, 1987, Reg; ...... do ...... Do. October 16, 2008, Susp. Lavergne, City of, Rutherford County ... 470167 September 8, 1975, Emerg; June 15, 1984, ...... do ...... Do. Reg; October 16, 2008, Susp. Rutherford County, Unincorporated 470165 January 30, 1975, Emerg; June 15, 1984, ...... do ...... Do. Areas. Reg; October 16, 2008, Susp. Smyrna, Town of, Rutherford County... 470169 November 7, 1974, Emerg; March 16, ...... do ...... Do. 1983, Reg; October 16, 2008, Susp. North Carolina: Bald Head Island, Village of, Brunswick 370442 February 26, 1986, Emerg; May 15, 1986, ...... do ...... Do. County. Reg; October 16, 2008, Susp. Chowan County, Unincorporated Areas 370301 August 25, 1977, Emerg; July 3, 1985, Reg; ...... do ...... Do. October 16, 2008, Susp. Edenton, Town of, Chowan County ...... 370062 November 14, 1973, Emerg; September 15, ...... do ...... Do. 1977, Reg; October 16, 2008, Susp. Indian Trail, Town of, Union County ..... 370235 June 14, 1976, Emerg; March 21, 1980, ...... do ...... Do. Reg; October 16, 2008, Susp. Lake Park, Village of, Union County ..... 370520 August 17, 1999, Emerg; August 17, 1999, ...... do ...... Do. Reg; October 16, 2008, Susp. Martin County, Unincorporated Areas ... 370155 December 18, 1975, Emerg; July 16, 1991, ...... do ...... Do. Reg; October 16, 2008, Susp. Marvin, Village of, Union County ...... 370514 December 28, 1998, Emerg; December 28, ...... do ...... Do. 1998, Reg; October 16, 2008, Susp. Mineral Springs, Town of, Union County 370529 May 17, 2000, Emerg; May 17, 2000, Reg; ...... do ...... Do. October 16, 2008, Susp. Monroe, City of, Union County ...... 370236 April 21, 1975, Emerg; January 19, 1983, ...... do ...... Do. Reg; October 16, 2008, Susp. Stallings, Town of, Union County ...... 370472 April 5, 1994, Emerg; April 5, 1994, Reg; ...... do ...... Do. October 16, 2008, Susp. Union County, Unincorporated Areas ... 370234 August 9, 1974, Emerg; July 18, 1983, Reg; ...... do ...... Do. October 16, 2008, Susp. Waxhaw, Town of, Union County ...... 370473 December 28, 1998, Emerg; December 28, ...... do ...... Do. 1998, Reg; October 16, 2008, Susp. Weddington, Town of, Union County .... 370518 May 3, 1999, Emerg; May 3, 1999, Reg; ...... do ...... Do. October 16, 2008, Susp. Wesley Chapel, Village of, Union Coun- 370525 March 12, 2000, Emerg; March 12, 2000, ...... do ...... Do. ty. Reg; October 16, 2008, Susp. Williamston, Town of, Martin County .... 370157 October 2, 1974, Emerg; August 19, 1987, ...... do ...... Do. Reg; October 16, 2008, Susp. Wingate, Town of, Union County ...... 370365 February 12, 1982, Emerg; February 12, ...... do ...... Do. 1982, Reg; October 16, 2008, Susp. *do = Ditto. Code for reading third column: Emerg—Emergency; Reg—Regular; Susp—Suspension.

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Dated: October 17, 2008. copying during regular business hours the Telephone Consumer Protection Act Edward L. Connor, at the FCC Reference Information (TCPA). Center, Portals II, 445 12th Street, SW., Acting Federal Insurance Administrator, Junk Fax Prevention Act of 2005 National Flood Insurance Program, Room CY–A257, Washington, DC 20554. Department of Homeland Security, Federal Document FCC 08–239 and any 2. On April 6, 2006, as required by the Emergency Management Agency. subsequently filed documents in this Junk Fax Prevention Act, the [FR Doc. E8–25879 Filed 10–29–08; 8:45 am] matter may also be purchased from the Commission released the Junk Fax BILLING CODE 9110–12–P Commission’s duplicating contractor at Order amending its rules on unsolicited Portals II, 445 12th Street, SW., Room facsimile advertisements. In so doing, CY–B402, Washington, DC 20554. the Commission adopted the FEDERAL COMMUNICATIONS Customers may contact the requirements of that statute virtually COMMISSION Commission’s duplicating contractor at verbatim. As relevant here, the Junk Fax their Web site: http://www.bcpiweb.com Prevention Act allows a sender that has 47 CFR Part 64 or call 1–800–378–3160. To request an established business relationship materials in accessible formats for (EBR) with the recipient to send an [CG Docket Nos. 02–278 and 05–338; FCC unsolicited facsimile advertisement if 08–239] people with disabilities (Braille, large print, electronic files, audio format), the sender obtained the number of the Rules and Regulations Implementing send an e-mail to [email protected] or call facsimile machine through: (1) The the Telephone Consumer Protection the Consumer & Governmental Affairs voluntary communication of such Act of 1991; Junk Fax Prevention Act Bureau at (202) 418–0530 (voice) or number, within the context of the EBR, of 2005 (202) 418–0432 (TTY). Document FCC from the recipient of the facsimile 08–239 can also be downloaded in advertisement, or (2) a directory, AGENCY: Federal Communications Word and Portable Document Format advertisement, or site on the Internet to Commission. (PDF) at: http://www.fcc.gov/cgb/policy. which the recipient voluntarily agreed ACTION: Final rule; clarification. to make available its facsimile number Paperwork Reduction Act of 1995 for public distribution. For this second SUMMARY: In this document, the Analysis category of facsimile numbers, the Commission addresses certain issues Commission found that it would be raised in petitions for reconsideration Document FCC 08–239 does not unduly burdensome for senders of and/or clarification of the Report and contain any new or modified facsimile advertisements to verify that Order implementing the Junk Fax information collection requirements the recipient voluntarily agreed to make Prevention Act of 2005. The subject to the Paperwork Reduction Act the facsimile number public in every Commission believes the clarifications of 1995 (PRA), Public Law 104–13. In instance. As a result, the Commission provided will assist senders of facsimile addition, it does not contain any new or concluded that ‘‘a facsimile number advertisements in complying with the modified ‘‘information collection obtained from the recipient’s own Commission’s rules in a manner that burden for small business concerns with directory, advertisement, or internet site minimizes regulatory compliance costs fewer than 25 employees,’’ pursuant to was voluntarily made available for while maintaining the protections the Small Business Paperwork Relief public distribution, unless the recipient afforded consumers under the Act of 2002, Public Law 107–198, see 44 has noted on such materials that it does Telephone Consumer Protection Act U.S.C. 3506(c)(4). not accept unsolicited advertisements’’ (TCPA). Synopsis at that number. The Commission noted, DATES: Effective October 30, 2008. however, that if a sender obtains the 1. In document FCC 08–239, the facsimile number from sources of FOR FURTHER INFORMATION CONTACT: Commission clarifies that: (1) Facsimile information compiled by third parties— Erica McMahon, Consumer & numbers compiled by third parties on such as membership directories and Governmental Affairs Bureau at (202) behalf of the facsimile sender will be commercial databases, the sender ‘‘must 418–0346 (voice), or e-mail presumed to have been made take reasonable steps to verify that the [email protected]. voluntarily available for public recipient consented to have the number SUPPLEMENTARY INFORMATION: distribution so long as they are obtained listed, such as calling or emailing the This is a summary of the from the intended recipient’s own recipient.’’ Commission’s Order on directory, advertisement, or Internet 3. The Junk Fax Prevention Act also Reconsideration, FCC 08–239, adopted site; (2) reasonable steps to verify that a requires that all unsolicited facsimile on October 8, 2008, and released on recipient has agreed to make available a advertisements include an opt-out October 14, 2008. The Order on facsimile number for public distribution notice that instructs recipients on how Reconsideration addresses certain issues may include methods other than direct to notify senders that they do not wish raised in petitions for reconsideration contact with the recipient; and (3) a to receive future facsimile and/or clarification filed in response to description of the facsimile sender’s advertisements. Among other the Commission’s Rules and opt-out mechanism on the first Web requirements, the opt-out notice must Regulations Implementing the page to which recipients are directed in identify a ‘‘cost-free’’ mechanism by Telephone Consumer Protection Act of the opt-out notice satisfies the which recipients can transmit their opt- 1991; Junk Fax Prevention Act of 2005, requirement that such a description out requests. The Commission CG Docket Nos. 02–278 and 05–338, appear on the first page of the Web site. concluded that, if a sender designates a Report and Order and Third Order on The Commission believes these Web site as its cost free opt-out Reconsideration, document FCC 06–42 clarifications will assist senders of mechanism, a description of the opt-out (Junk Fax Order), published at 71 FR facsimile advertisements in complying mechanism and procedures must be 25967, May 3, 2006. Copies of document with the Commission’s rules in a included ‘‘clearly and conspicuously on FCC 08–239 and any subsequently filed manner that minimizes regulatory the first page of the Web site.’’ The documents in this matter will be compliance costs while maintaining the Commission also clarified that, in available for public inspection and protections afforded consumers under accordance with the Junk Fax

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Prevention Act, if there are several requests that a properly formatted opt- 8. The Commission agrees with DMA pages to the facsimile, the first page of out notice included on a facsimile cover that it is possible that the circumstances the advertisement must contain the opt- page complies with the requirement that attending the collection of a facsimile out notice. In so doing, the Commission such opt-out notice appear on the ‘‘first number can provide sufficient evidence declined to find that the ‘‘first page’’ page of the advertisement.’’ that the number has been provided notice requirement was satisfied by voluntarily for public distribution Established Business Relationship including the notice on a cover page. without the necessity of contacting the Rather, the Commission required that Facsimile Numbers Obtained From the recipient. For example, the recipient the opt-out notice appear on the first Recipient’s Own Directory, may expressly agree at the point of page of the advertisement itself. Finally, Advertisement or Internet Site collection to allow for public disclosure the Commission declined to limit the 6. Consistent with the Commission’s of the facsimile number. The time period during which a request to conclusion in the Junk Fax Order, the Commission cautions, however, that opt out from receiving unsolicited Commission reiterates that facsimile should a complaint arise on this issue, facsimile advertisements remains in numbers compiled on behalf of the the facsimile sender has the burden to effect. The Commission concluded that facsimile sender will be presumed to demonstrate that the circumstances requiring consumers to repeat their opt- have been voluntarily made available surrounding the acquisition of the out requests to potentially hundreds of for public distribution so long as they facsimile number reasonably indicate senders of unsolicited facsimile are obtained from the intended that the recipient agreed to make the advertisements would be overly recipient’s own directory, advertisement facsimile number available for public burdensome to recipients. Therefore, or Internet site. In so doing, the distribution. once an opt-out request has been received, the sender is prohibited from Commission agrees with DMA that it Notice of Opt-Out Opportunity transmitting facsimile advertisements to did not limit this presumption to only those situations in which the sender Location of the Opt-Out Mechanism on that number until the sender obtains the the Web site’s First Page prior express permission of the recipient compiles this information through ‘‘in- 9. The Commission clarifies that a to resume sending facsimile house’’ employees. Rather, it is the facsimile sender satisfies the advertisements. source from which the facsimile number is obtained, and not the identity of the requirement to provide clear and Petitions for Reconsideration compiler, that provides evidence of conspicuous notice of a cost-free 4. On June 2, 2006, two petitions for whether the recipient intended to make mechanism for transmitting opt-out reconsideration and clarification were that number available for public requests when the opt-out notice directs filed in response to the Junk Fax Order. distribution. Therefore, no additional the recipient to a dedicated Web page Specifically, the Direct Marketing verification that the recipient has that allows the recipient to opt-out of Association (DMA) seeks clarification voluntarily made available his or her future facsimile advertisements. The that the Junk Fax Order does not facsimile number is required if the Commission’s rules require that all prohibit the use of third-party agents to number is obtained from the recipient’s facsimile advertisements include an opt- perform services that an organization own directory, advertisement or Internet out notice by which recipients can would otherwise be permitted to site. However, the Commission cautions inform senders that they do not wish to conduct internally. In addition, DMA that a sender that uses a third party to receive future unsolicited urges the Commission to make clear that compile facsimile numbers will be advertisements. The notice must when a sender does elect to use liable for the errors of its third-party include a domestic telephone number facsimile numbers collected agent or contractor. The Commission and facsimile number for the recipient independently from a third party source also reiterates that senders of facsimile to transmit an opt-out request. If neither such as a membership directory, that advertisements must have an EBR with the required telephone number nor ‘‘reasonable steps’’ to verify the number the recipient in order to send the facsimile number is a toll free number, was provided voluntarily may include advertisement to the recipient’s a separate cost-free mechanism must be measures that do not involve direct facsimile number. The fact that the provided for the recipient to transmit contact with the intended recipient. facsimile number was made available in the opt-out request. In the Junk Fax Finally, DMA requests that the the recipient’s own directory, Order, the Commission noted that, if the Commission reconsider the decision not advertisement or Web site does not sender designates a Web site as its cost- to limit the time period for which an alone entitle a sender to transmit a free opt-out mechanism, a description of opt-out request remains in effect. facsimile advertisement to that number. the mechanism must be included clearly 5. Leventhal Senter and Lerman PLLC and conspicuously on the first page of (LS&L), on behalf of certain unnamed Reasonable Steps to Verify That the the Web site. broadcast clients, seeks reconsideration Recipient Has Voluntarily Made 10. The Commission clarifies that a or clarification of two issues relating to Available a Facsimile Number description of the facsimile sender’s the opt-out notice. First, LS&L requests 7. The Commission clarifies that opt-out mechanism on the first Web that the Commission clarify that the ‘‘reasonable steps’’ under its rules to page to which recipients are directed in requirement that a clear and verify that a recipient has agreed to the opt-out notice satisfies the conspicuous description of the opt-out make available a facsimile number for requirement that such a description mechanism appear on the Web site’s public distribution may include appear on the ‘‘first page’’ of the Web first page is met when ‘‘a dedicated opt- methods other than calling or e-mailing site. In addition, a clear and out page [is] specified by URL in the the recipient directly. The Commission conspicuous link should be provided on opt-out notice’’ that appears in the cited these verification methods in the the Web site’s homepage to direct facsimile advertisement. In addition, Junk Fax Order as examples that satisfy recipients to the appropriate internal LS&L suggests that a link could be this requirement. The Commission did opt-out Web page. The Commission included on the Web site’s homepage to not, however, limit parties in this agrees with LS&L, however, that it did direct recipients to the appropriate context only to means of direct contact not intend to mandate that the entire internal Web page. Second, LS&L with the recipient. opt-out mechanism must appear on the

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homepage of every sender of unsolicited advertisements, it remains in effect Federal Communications Commission. facsimile advertisements. Rather, the indefinitely until the recipient Marlene H. Dortch, intent of this requirement is to provide affirmatively opts-out from receiving Secretary. a reasonable means for recipients to future advertisements. [FR Doc. E8–25801 Filed 10–29–08; 8:45 am] locate the facsimile sender’s opt-out 13. In contrast, the Commission’s BILLING CODE 6712–01–P mechanism and make requests to avoid rules limit the duration of an EBR future unwanted facsimiles. The exemption in the case of telephone Commission believes this interpretation solicitations to no longer than 18 FEDERAL COMMUNICATIONS of the ‘‘first’’ Web page requirement months after a purchase or transaction COMMISSION adequately ensures that recipients can locate the opt-out mechanism while or three months following an 47 CFR Part 73 providing flexibility to facsimile senders application or inquiry. Thus, the EBR [MM Docket No. 93–177; FCC 08–228] in designing their Web sites in the most will expire automatically in the case of telephone solicitations without any cost-effective manner to comply with An Inquiry Into the Commission’s this requirement. further action by the consumer. In addition, recipients of facsimile Policies and Rules Regarding AM Facsimile Cover Page advertisements assume the cost of the Radio Service Directional Antenna Performance Verification 11. The Commission declines to paper used, the cost associated with the reconsider its decision that the first page use of the facsimile machine, and the AGENCY: Federal Communications of the facsimile advertisement must costs associated with the time spent Commission. contain the opt-out notice. In so doing, receiving a facsimile advertisement ACTION: Final rule. the Commission notes that the Junk Fax during which the machine cannot be Prevention Act requires that ‘‘the notice used by its owner to send or receive SUMMARY: In this proceeding the is clear and conspicuous and on the first other facsimile transmissions. The Commission permits the use of page of the unsolicited advertisement.’’ Commission believes that protecting computer modeling techniques to verify Specifically, the Commission declines recipients from the direct costs imposed that directional AM antennas perform as to find that placement of the opt-out by unwanted facsimile transmissions is authorized. The new rules reduce the notice on a cover sheet that best achieved by declining to limit the time and expense associated with the accompanies the facsimile duration of an opt-out request. license application for a directional AM advertisement satisfies this requirement. station. The changes, consistent with The Commission specifically addressed Regulatory Flexibility Analysis the Commission’s streamlining this issue in the Junk Fax Order, and The Commission notes that no Final initiatives, reduce the regulatory burden petitioners provide no new information Regulatory Flexibility Analysis is upon directional AM stations to the or evidence that leads the Commission extent possible while maintaining the necessary for the document FCC 08– to now reconsider this conclusion. integrity of the service. 239, as it is not making any changes to Duration of Opt-Out Requests the Commission’s rules. DATES: Effective December 1, 2008, except for the amendments to §§ 73.61, 12. The Commission declines to Congressional Review Act 73.68, 73.151, and 73.155 which contain reconsider its decision not to limit the information collection requirements that duration for which a request to opt-out The Commission will send a copy of have not been approved by Office of from receiving unsolicited facsimile document FCC 08–239 in a report to be Management and Budget (OMB). The advertisements remains in effect. Here sent to Congress and the Government Commission will publish a document in too the Commission directly addressed Accountability Office pursuant to the the Federal Register announcing the this issue in the Junk Fax Order, and Congressional Review Act, see 5 U.S.C. effective date of these rules. petitioners provide no new evidence or 801(a)(1)(A). arguments on reconsideration that lead ADDRESSES: Secretary, Federal us to reconsider this finding. The Ordering Clauses Communications Commission, 445 12th Commission has considered arguments Street, SW., Washington, DC 20554, Pursuant to sections 1–4, 227, and that facsimile numbers may change http://www.fcc.gov. 303(r) of the Communications Act of hands over time and that those who FOR FURTHER INFORMATION CONTACT: 1934, as amended; 47 U.S.C. 151–154, make the opt-out request could, at some Peter H. Doyle, Audio Division, Media 227, and 303(r); § 1.429 of the point, no longer be the same parties Bureau (202) 418–2700. Commission’s rules, 47 CFR 1.429; and associated with those telephone SUPPLEMENTARY INFORMATION: This is a § 64.1200 of the Commission’s rules, 47 numbers. The Commission has summary of the Commission’s Second CFR 64.1200, the Order on concluded, however, that these Report and Order in MM Docket No. concerns are outweighed by the Reconsideration in CG Docket Nos. 02– 93–177, adopted September 24, 2008, potential burdens imposed on those 278 and 05–338 is adopted. and released September 26, 2008. The recipients that would otherwise be Petitions for reconsideration and/or new rules adopted here were proposed forced to repeat their opt-out requests to clarification filed by the Direct in an earlier Further Notice of Proposed potentially hundreds of facsimile Marketing Association and Leventhal Rule Making in this proceeding [See 66 senders. The Commission disagrees Senter and Lerman PLLC in CG Docket FR 20779, April 25, 2001]. The final with DMA’s contention that opt-out Nos. 02–278 and 05–338 are denied in rules incorporate comments received in requests from facsimile recipients part and granted in part. The response to the Further Notice of should be limited in duration in the Commission’s Consumer & Proposed Rule Making. The complete same manner as do-not-call requests. Governmental Affairs Bureau, Reference text of this Second Report and Order is The Commission notes that, unlike the Information Center, shall send a copy of available for inspection and copying rules on telephone solicitations, once an this Order on Reconsideration, to the during normal business hours in the EBR has been established for purposes Chief Counsel for Advocacy of the Small FCC Reference Center (Room CY–A257), of allowing the transmission of facsimile Business Administration. 445 12th Street, SW., Washington, DC

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and may also be purchased from the techniques to verify the performance of concern is one which: (1) Is Commission’s copy contractor, Best AM directional antennas. In addition, independently owned and operated; (2) Copy and Printing, Inc., (800) 378–3160, the coalition’s comments pointed out is not dominant in its field of operation; 445 12th Street, SW., Room CY–402, some of the limitations inherent in and (3) satisfies any additional criteria Washington, DC 20554. The complete traditional field strength proofs. established by the Small Business text is also available on the Internet at 6 Final Regulatory Flexibility Analysis Administration (SBA). http://hraunfoss.fcc.gov/edocs_public/ The rules adopted in this Second attachmatch/FCC–08–228A1.pdf. As required by the Regulatory Report and Order will apply to those Flexibility Act of 1980, as amended Synopsis of Second Report and Order AM radio broadcasting licensees and (RFA),1 an Initial Regulatory Flexibility potential licensees that operate with 1. Introduction. This proceeding is Analysis (IRFA) was incorporated in the directional antennas. The Small part of a broad-based initiative to Further Notice of Proposed Rulemaking Business Administration defines a radio simplify the Commission’s licensing in this proceeding. The Commission broadcasting entity that has $6.5 million procedures for radio stations. The sought written public comment on the or less in annual receipts as a small Report and Order in this proceeding proposals in the Further Notice of business.7 Business concerns included [See 66 FR 20752, April 25, 2001] Proposed Rulemaking, including in this industry are those ‘‘primarily simplified traditional proof of comment on the IRFA. None were engaged in broadcasting aural programs performance requirements for a received. This Final Regulatory by radio to the public.’’ According to directional AM station. The Further Flexibility Analysis (FRFA) conforms to Commission staff review of the BIA 2 Notice of Proposed Rulemaking sought the RFA. Financial Network, Inc. Media Access comment on the use of moment method Need For and Objectives of the Rules: Radio Analyzer Database as of May 1, computer modeling to demonstrate that This Second Report and Order adopts 2008, 13,457 (about 96 percent) of rules permitting the use of computer certain AM directional antennas 13,977 radio stations in the United modeling techniques based on moment perform as authorized. This Second States have revenues of $6.5 million or method analysis to verify AM Report and Order permits AM less. AM stations constitute 4,776 of the directional antenna performance. broadcasters to use computer modeling radio station total, and approximately Adoption of such techniques will techniques in place of a traditional 40 percent of AM stations use reduce the substantial costs associated proof of performance based on field directional antennas. Consequently, we with licensing for directional AM strength measurements, which are time- estimate that 1,910 AM stations may be consuming and expensive. stations. These rules also advance the affected by the new rules. Using the 96 2. AM proof of performance Commission’s regulatory requirements percent figure to estimate the number of requirements. Directional AM stations to the minimum necessary to achieve use antennas which suppress radiated our policy objectives of controlling small businesses among directional AM field in some directions and enhance it interference and assuring adequate stations, we conclude that in others. In order to control community coverage. approximately 1,834 of the affected AM interference between stations and assure Legal Basis: Authority for the actions stations are small businesses. We note, adequate community coverage, proposed in this Second Report and however, that in assessing whether a directional AM stations must undergo Order may be found in sections 4(i), 4(j), business entity qualifies as small under extensive ‘‘proofs of performance’’ to 303, 308, 309, 316 and 319 of the the above definition, business control 8 demonstrate that the antenna system Communications Act of 1934, as affiliations must be included. Our operates as authorized. An antenna amended, 47 U.S.C. 154(i), 154(j), 303, estimate, therefore, likely overstates the proof of performance establishes 308, 309, 316 and 319. number of small entities that might be whether the radiation pattern of an AM Description and Estimate of the affected by any changes to the station is in compliance with the Number of Small Entities to Which the ownership rules, because the revenue station’s authorization. An AM station Proposed Rules Will Apply: The RFA figures on which this estimate is based must perform a full proof to verify the directs the Commission to provide a do not include or aggregate revenues pattern shape when a new directional description of and, where feasible, an from affiliated companies. antenna system is authorized. Partial estimate of the number of small entities In this context, the application of the proofs, which require fewer that will be affected by the rules statutory definition to radio stations is measurements, are occasionally adopted herein.3 The RFA generally of concern. An element of the definition necessary to show that an array defines the term ‘‘small entity’’ as of ‘‘small business’’ is that the entity not continues to operate properly. This having the same meaning as the terms be dominant in its field of operation. We Second Report and Order allows most ‘‘small business,’’ ‘‘small organization,’’ are unable at this time and in this directional AM stations to use computer and ‘‘small government jurisdiction.’’ 4 context to define or quantify the criteria modeling in place of the traditional In addition, the term ‘‘small business’’ that would establish whether a specific proof of performance, which is based on has the same meaning as the term field strength measurements taken many ‘‘small business concern’’ under the 632). Pursuant to 5 U.S.C. 601(3), the statutory 5 definition of a small business applies ‘‘unless an miles from the antenna. In contrast to Small Business Act. A small business agency, after consultation with the Office of the traditional method, a moment Advocacy of the Small Business Administration method proof relies upon internal 1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et and after opportunity for public comment, measurements to verify that the antenna seq., has been amended by the Small Business establishes one or more definitions of such term Regulatory Enforcement Fairness Act of 1996 which are appropriate to the activities of the agency is operating properly. (SBREFA), Public Law No. 104–121, Title II, 110 and publishes such definition(s) in the Federal The new rules are based on a proposal Stat. 847 (1996). The SBREFA was enacted as Title Register.’’ 5 U.S.C. 601(3). made by an ad hoc coalition of radio II of the Contract With America Advancement Act 6 15 U.S.C. 632. broadcasters, equipment manufacturers, of 1996. 7 See NAICS Code 515112. 2 See 5 U.S.C. 604. and broadcast consulting engineers. 8 ‘‘[Business concerns] are affiliates of each other 3 5 U.S.C. 603(b)(3). when onebusiness concern controls or has the Comments filed by the ad hoc coalition 4 5 U.S.C. 601(6). power to control the other or a third party or parties reflected a strong consensus in favor of 5 5 U.S.C. 601(3) (incorporating by reference the controls or has the power to control both.’’ 13 CFR allowing the use of moment method definition of ‘‘small business concern’’ in 15 U.S.C. 121.103(a)(1).

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radio station is dominant in its field of compliance burden for directional AM Report to Congress operation. Accordingly, the foregoing stations. Directional AM stations are not The Commission will send a copy of estimate of small businesses to which required to use these new procedures, the Second Report and Order and the rules may apply does not exclude however. Previous rules concerning AM Second Further Notice of Proposed any radio station from the definition of directional antenna performance Rulemaking, including the FRFA, in a a small business on this basis and is verification remain in effect, and an AM report to be sent to Congress and the therefore over-inclusive to that extent. station may continue to use the old Government Accountability Office An additional element of the definition rules if these are more advantageous. By pursuant to the Congressional Review of ‘‘small business’’ is that the entity offering a cost-effective and efficient Act.11 In addition, the Commission will must be independently owned and new means of performance verification, operated. We note that it is difficult at send a copy of the Second Report and but not requiring its use, we have Order and Second Further Notice of times to assess these criteria in the increased the options available to all context of media entities, and our Proposed Rulemaking, including the directional AM stations for verifying estimates of small businesses to which FRFA, to the Chief Counsel for antenna performance. The additional they apply may be over-inclusive to this Advocacy of the Small Business extent. flexibility afforded by the new rules will Administration. A copy of the Second Description of Projected Recording, be particularly advantageous to small Report and Order and Second Further Recordkeeping, and Other Compliance businesses. Notice of Proposed Rulemaking, including the FRFA (or summaries Requirements: In order to control Paperwork Reduction Act Analysis interference between stations and assure thereof), will also be published in the 12 adequate community coverage, The Second Report and Order Federal Register. directional AM stations must undergo contains new and modified information List of Subjects extensive ‘‘proofs of performance’’ when collection requirements subject to the initially constructed, and from time to paperwork Reduction Act of 1995 Radio. time thereafter, to verify conformance (PRA), Public Law 104–13. In addition, Federal Communications Commission. with authorized operating parameters. it contains new and modified Marlene H. Dortch, The new proof of performance ‘‘information collection burdens for Secretary. techniques adopted here, which are small business concerns with fewer than Rules Changes optional, will substantially reduce the 25 employees,’’ pursuant to the Small compliance burden for licensees of Business Paperwork Relief Act of 2002, ■ For the reasons discussed in the directional AM stations and for Public Law 107–198, see 44 U.S.C. preamble, the Federal Communications Commission staff. The new compliance 3506(c)(4). It will be submitted to the Commission amends 47 CFR part 73 to requirements associated with the rule Office of Management and Budget read as follows: changes are less onerous than our existing proof of performance (OMB) for review under section 3507(d) of the PRA. The Commission, as part of PART 73—RADIO BROADCAST requirements. The periodic SERVICES recertification required for stations its continuing effort to reduce opting to use the new proof of paperwork burdens, will invite the ■ 1. The authority citation for part 73 performance techniques is the only new general public and OMB in a separate continues to read as follows: record keeping involved. We believe Federal Register to comment on the information collection requirements Authority: 47 U.S.C. 154, 303, 334, 336, this requirement does not represent a and 339. significant burden, and is more than contained in this document, as required offset by the efficiency of the new by the Paperwork Reduction Act of ■ 2. Amend § 73.61 by revising procedures. 1995. In regard to the proposed new paragraphs (a) and (b) to read as follows: Steps Taken To Minimize Significant information collection requirements, Economic Impact on Small Entities and § 73.61 AM directional antenna field pursuant to the Small Business strength measurements. Significant Alternatives Considered: The Paperwork Relief Act of 2002,10 we seek RFA requires an agency to describe any specific comment on how we might (a) Each AM station using a significant alternatives that it has ‘‘further reduce the information directional antenna with monitoring considered in reaching its proposed collection burden for small business point locations specified in the approach, which may include the concerns with fewer than 25 instrument of authorization must make field strength measurements as often as following four alternatives (among employees.’’ In regard to the new and necessary to ensure that the field at each others): (1) The establishment of modified information collection of those points does not exceed the differing compliance or reporting requirements adopted herein, we value specified in the station requirements or timetables that take into previously sought specific comment on account the resources available to small authorization. Additionally, stations not how the Commission might ‘‘further entities; (2) the clarification, having an approved sampling system reduce the information collection consolidation, or simplification of must make the measurements once each burden for small business concerns with compliance or reporting requirements calendar quarter at intervals not under the rule for small entities; (3) the fewer than 25 employees.’’ In the exceeding 120 days. The provision of use of performance, rather than design, Second Report and Order, we have this paragraph supersedes any schedule standards; and (4) an exemption from assessed the effects of the new rules for specified on a station license issued coverage of the rule, or any part thereof, directional AM performance verification prior to January 1, 1986. The results of for small entities.9 adopted herein, and find that these new the measurements are to be entered into The rules adopted in the Second rules, which are optional, would greatly the station log pursuant to the Report and Order offer alternative reduce the information collection provisions of § 73.1820. procedures that will greatly reduce the burden for licensees. 11 See 5 U.S.C. 801(a)(1)(A). 9 5 U.S.C. 603(c)(1) through (c)(4). 10 Public Law 107–198, see 44 U.S.C. 3506(c)(4). 12 See 5 U.S.C. 604(b).

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(b) If the AM license was granted on (a) * * * within one electrical degree elevation of the basis of field strength measurements * * * * * the actual feed point. performed pursuant to § 73.151(a), (c) Computer modeling and sample (v) For uniform cross-section towers partial proof of performance system verification of modeled represented by vertical wires, each wire measurements using the procedures parameters to establish operation of a used for a given tower shall be between described in § 73.154 must be made directional antenna consistent with the 75 to 125 percent of the physical length whenever the licensee has reason to theoretical pattern. Each element of the represented. believe that the radiated field may be directional array shall be modeled by (vi) For self-supporting towers, exceeding the limits for which the use of a method of moments computer stepped-radius wire sections may be station was most recently authorized to program, using the physical employed to simulate the physical operate. characteristics of each element to tower’s taper, or the tower may be * * * * * establish a model that does not violate modeled with individual wire sections representing the legs and cross ■ 3. Amend § 73.68 by revising any of the internal constraints of the members. paragraph (a), redesignating paragraphs computer program. Only arrays (vii) The lumped series inductance of (b) through (e) as paragraphs (c) through consisting of series-fed elements may the feed system between the output port (f), and by adding a new paragraph (b) have their performance verified by of each antenna tuning unit and the to read as follows: computer modeling and sample system associated tower shall be no greater than verification. µ § 73.68 Sampling systems for antenna (1) A matrix of impedance 10 H unless a measured value from the monitors. measurements at the base and/or feed measurement point to the tower base (a) Each AM station permittee point of each element in the array, with with its insulator short circuited is used. authorized to construct a new all other elements shorted and/or open (viii) The shunt capacitance used to directional antenna system which will circuited at their respective model base region effects shall be no be subject to a proof of performance measurement locations, shall be made. greater than 250 pF unless the measured based on field strength measurements, The physical model of the individual or manufacturer’s stated capacitance for as described in § 73.151(a) or (b), must antenna elements used in the computer each device other than the base install the sampling system in program may be varied to match the insulator is used. The total capacitance accordance with the following measured impedance matrix, but the of such devices shall be limited such specifications: actual spacings and orientations of the that in no case will their total capacitive (1) Devices used to extract or sample array elements must be used. Towers reactance be less than five times the the current and the transmission line may be modeled using individual magnitude of the tower base operating connecting the sampling elements to the vertical wires to represent them, or with impedance without their effects being antenna monitor must provide accurate multiple wires representing their leg considered. and stable signals to the monitor (e.g., and cross-member sections. The (ix) The orientation and distances rigidly mounted and non-rotatable loops resulting model description (consisting among the individual antenna towers in and all system components protected of the length, radius, and number of the array shall be confirmed by a post- from physical and environmental segments of each wire for arrays using construction certification by a land disturbances). vertical wire sections to represent the surveyor (or, where permitted by local (2) Sampling lines for directional towers, or the length, end-point regulation, by an engineer) licensed or antennas may be of different lengths coordinates, and radius of each wire registered in the state or territory where provided the phase difference of signals used to represent leg and cross-member the antenna system is located. at the monitor are less than 0.5 degrees sections for arrays using detailed tower (2)(i) The computer model, once between the shortest and longest cable structure representations) as well as the verified by comparison with the lengths due to temperature variations to assumed input feed and base region measured base impedance matrix data, which the system is exposed. stray reactances shall be used to shall be used to determine the (3) Other configurations of sampling generate the drive impedances and appropriate antenna monitor systems may be used upon sample system parameter values for the parameters. The moment method demonstration of stable operation to the operating directional antenna pattern modeled parameters shall be established FCC. parameters. by using the verified moment method (b) An AM station permittee (i) For arrays using vertical wires to model to produce tower current authorized to construct a directional represent each tower, the radii of distributions that, when numerically antenna system which will be subject to cylinders shall be no less than 80 integrated and normalized to the a proof of performance based on percent and no more than 150 percent reference tower, are identical to the moment method modeling, as described of the radius of a circle with a specified field parameters of the in § 73.151(c), shall install a sampling circumference equal to the sum of the theoretical directional antenna pattern. system conforming to the requirements widths of the tower sides. The samples used to drive the antenna set forth in that section. (ii) For arrays using multiple wires to monitor may be current transformers or * * * * * represent leg and cross-member voltage sampling devices at the outputs ■ 4. Amend § 73.151 by adding sections, the individual legs of the tower of the antenna matching networks or introductory text and by adding may be modeled at their actual sampling loops located on the towers. If paragraph (c) to read as follows: diameters with appropriate sample loops are used, they shall be interconnecting segments representing located at the elevation where the § 73.151 Directional Antenna Performance cross-members at regular intervals. current in the tower would be at a Verification. (iii) No less than one segment for each minimum if the tower were detuned in The performance of a directional 10 electrical degrees of the tower’s the horizontal plane, as determined by antenna may be verified either by field physical height shall be used for each the moment method model parameters strength measurement or by computer element in the array. used to determine the antenna monitor modeling and sampling system (iv) Base calculations shall be made parameters. Sample loops may be verification. for a reference point at ground level or employed only when the towers are

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identical in cross-sectional structure, between the measured matrix as were measured in the most recent including both leg and cross member impedances for each tower and those proof of performance and must characteristics; if the towers are of calculated by the method of moments demonstrate that the sampling lines unequal height, the sample loops shall program. The antenna monitor sample continue to meet the requirements of be mounted identically with respect to indications must be initially adjusted to § 73.151(c) with regard to their length tower cross members at the appropriate agree with the moment method model and characteristic impedance. elevations above the base insulator. If within +/¥5 percent for the field ratio (3) For towers having sampling loops, the tower height used in the model is and +/¥3 degrees in phase. The measurements shall be made at carrier other than the physical height of the measured matrix impedances must frequency or, if necessary, at nearby tower, the sampling loop shall be agree with the moment method model frequencies where the magnitude of the located at a height that is the same within +/¥2 ohms and +/¥4 percent measured impedance is no greater than fraction of the total tower height as the for resistance and reactance. 200 ohms with the sampling loops minimum in tower current with the (3) Reference field strength connected. The frequencies measured tower detuned in the model. Sample measurement locations shall be must be the same as were measured in lines from the sensing element to the established in directions of pattern the most recent proof of performance antenna monitor must be equal in both minima and maxima. On each radial and the measured impedances must length (within one electrical degree) and corresponding to a pattern minimum or agree within +/¥2 ohms and +/¥4 characteristic impedance (within two maximum, there shall be at least three percent resistance and reactance of the ohms), as established by impedance measurement locations. The field proof values. measurements, including at the open- strength shall be measured at each (b) Field strength measurements shall circuit resonant frequency closest to reference location at the time of the be made at the reference field strength carrier frequency to establish length, at proof of performance. The license measurement locations that were frequencies corresponding to odd application shall include the measured established by the most recent proof of multiples of 1⁄8 wavelength immediately field strength values at each reference performance. If locations have become above and below the open circuit point, along with a description of each inaccessible or their readings resonant frequency closest to carrier measurement location, including GPS contaminated by localized frequency, while open circuited, to coordinates and datum reference. electromagnetic environmental changes, establish characteristic impedance, and ■ 5. Add new § 73.155 to read as new locations that meet the at carrier frequency or, if necessary, at follows: requirements of the moment method proof of performance rules in nearby frequencies where the magnitude § 73.155 Periodic Directional Antenna of the measured impedance is no greater Performance Recertification. § 73.151(c)(3) shall be established to than 200 ohms with the sampling replace them. A station licensed with a directional (c) The results of the periodic devices connected. Samples may be antenna pattern pursuant to a proof of obtained from current transformers at directional antenna performance performance using moment method recertification measurements shall be the output of the antenna coupling and modeling and internal array parameters matching equipment for base-fed towers retained in the station’s public as described in § 73.151(c) shall inspection file. whose actual electrical height is 120 recertify the performance of that degrees or less, or greater than 190 directional antenna pattern at least once [FR Doc. E8–25802 Filed 10–29–08; 8:45 am] electrical degrees. Samples may be within every 24 month period. BILLING CODE 6712–01–P obtained from base voltage sampling (a) Measurements shall be made to devices at the output of the antenna verify the continuing integrity of the coupling and matching equipment for antenna monitor sampling system. DEPARTMENT OF COMMERCE base-fed towers whose actual electrical (1) For towers using base current or height is greater than 105 degrees. base voltage sampling derived at the National Oceanic and Atmospheric Samples obtained from sample loops output of the antenna coupling and Administration located as described above can be used matching equipment, the sampling for any height of tower. For towers using devices shall be disconnected and 50 CFR Part 622 base current or base voltage sampling calibrated by measuring their outputs [Docket No. 0808051052–81365–02] derived at the output of the antenna with a common reference signal (a coupling and matching equipment, the current through them or a voltage across RIN 0648–AW85 sampling devices shall be disconnected them, as appropriate) and the Fisheries of the Caribbean, Gulf of and calibrated by measuring their calibration must agree with the Mexico, and South Atlantic; Reef Fish outputs with a common reference signal manufacturer’s specifications. (a current through them or a voltage (2) For towers using base current or Fishery of the Gulf of Mexico; across them, as appropriate) and the base voltage sampling derived at the Referendum Procedures for a Potential calibration must agree within the output of the antenna coupling and Gulf of Mexico Grouper and Tilefish manufacturer’s specifications. A matching equipment, sampling line Individual Fishing Quota Program complete description of the sampling measurements shall be made to verify AGENCY: National Marine Fisheries system, including the results of the the open-circuit resonant frequency Service (NMFS), National Oceanic and measurements described in this closest to carrier frequency, to establish Atmospheric Administration (NOAA), paragraph, shall be submitted with the length, and also at frequencies Commerce. application for license. 1 corresponding to odd multiples of ⁄8 ACTION: Final rule; statement of (ii) Proper adjustment of an antenna wavelength immediately above and procedure. pattern shall be determined by below the open-circuit resonant correlation between the measured frequency closest to carrier frequency, SUMMARY: NMFS issues this final rule to antenna monitor sample indications and while open circuited, to verify their provide information concerning the the parameters calculated by the method characteristic impedance. The procedures, schedule, and eligibility of moments program, and by correlation frequencies measured must be the same requirements NMFS will use in

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conducting a referendum for an Section 303A of the Magnuson- the proposed rule stage if the individual fishing quota (IFQ) program Stevens Act specifies general referendum is approved. Following is a for the Gulf of Mexico (Gulf) requirements for limited access summary of the comments NMFS commercial grouper and tilefish privilege (LAP) programs implemented received and NMFS’ respective fisheries. If the IFQ program, as in U.S. marine fisheries. A LAP is responses. developed by the Gulf of Mexico defined as a Federal limited access Comment 1: The eligibility criteria Fishery Management Council (Council), permit that provides a person the and procedures for conducting the is approved through the referendum exclusive privilege to harvest a specific referendum are fair and equitable and process, the Council may choose to portion of a fishery’s total allowable meet other mandates of the Magnuson- submit the IFQ program to the Secretary catch. This definition includes Stevens Act. NMFS is urged to conduct of Commerce (Secretary) for review, exclusive harvesting privileges allocated the referendum in December so that an approval, and implementation. The to participants under IFQ programs. implementation date of no later than intended effect of this rule is to Section 303A(c)(6)(D) of the January 1, 2010, can be accomplished. implement the referendum consistent Magnuson-Stevens Act outlines specific Response: NMFS determined the with the requirements of the Magnuson- requirements for IFQ program proposals criteria for conducting the referendum Stevens Fishery Conservation and developed by the Council. The were fair and equitable. In making this Management Act (Magnuson-Stevens Magnuson-Stevens Act requires such determination, NMFS concluded that: 1) Act). program proposals, as ultimately The Council’s referendum criteria are rationally connected to and further the DATES: This final rule is effective developed, be approved through objectives of the proposed IFQ program, December 1, 2008. referenda before they may be submitted for review and implementation by the 2) referendum voting eligibility ADDRESSES: Copies of supporting Secretary. The Magnuson-Stevens Act requirements are designed to prevent documentation for this final rule, which also mandates the Secretary publish any one person or single entity from includes a regulatory impact review referendum guidelines to determine obtaining an excessive share of the (RIR) and a Regulatory Flexibility Act procedures for initiating, conducting, voting privileges, 3) the criteria enable Analysis (RFAA), are available from and deciding IFQ program referenda, as validating a participants eligibility, and Susan Gerhart, NMFS, Southeast well as voting eligibility requirements. 4) the referendum can be administered Regional Office, 263 13th Avenue These procedures and guidelines are in a fair and equitable manner within a South, St. Petersburg, FL 33701. intended to ensure referenda conducted reasonable time period. FOR FURTHER INFORMATION CONTACT: on IFQ program proposals are fair and NMFS’ proposed timeline to conduct Susan Gerhart, 727–824–5305. equitable and will provide the Council the referendum is consistent with the SUPPLEMENTARY INFORMATION: The reef the flexibility to define IFQ program guidelines. NMFS will mail referendum fish fishery in the exclusive economic referenda voting eligibility requirements ballots to eligible voters as soon as zone (EEZ) of the Gulf is managed under on a fishery-specific basis, yet within practicable after the final referendum the Fishery Management Plan for the the constraints of the Magnuson-Stevens rule is published. Eligible voters must Reef Fish Resources of the Gulf of Act and other applicable law. NMFS submit their ballots to be received by Mexico (FMP). The FMP was prepared published proposed guidelines in the NMFS no later than 30 days from the by the Council and is implemented Federal Register on April 23, 2008 (73 postmark date on the envelope under the authority of the Magnuson- FR 21893), and requested public containing the ballots provided by Stevens Act by regulations at 50 CFR comment. NMFS. NMFS will tally the votes and part 622. On September 4, 2008, NMFS post the results within 60 days of published a proposed rule to implement receiving the ballots. If the referendum Background the referendum procedures for a is approved, the Council may submit the The Council first considered an IFQ potential Gulf commercial grouper and IFQ program proposal contained in program for the Gulf grouper fishery in tilefish IFQ program and requested Amendment 29 to the FMP to NMFS for 2004. At that time, the Council public comment through October 6, review, approval, and implementation. anticipated future action was needed to 2008 (73 FR 51617, September 4, 2008). If Amendment 29 is approved by the further control effort in the Gulf grouper Secretary, the expected implementation Comments and Responses fishery. At its October 2004 meeting, the date would be January 1, 2010. Council requested NMFS publish a NMFS received eleven individual Comment 2: The proposed minimum control date to discourage speculative comment letters and one letter signed by landing requirement of 8,000 lb (3,629 participation in the grouper fishery for 42 individuals, with comments falling kg) average is unfair, and all individuals the purpose of developing a catch into three general categories. Several who fish for grouper should be eligible history. The Council chose October 15, comments were in favor of the to vote. Every permit holder should be 2004, as the control date. NMFS referendum, some comments opposed entitled to vote, even if no grouper or published the control date in the the eligibility criteria for voting in the tilefish were landed during the Federal Register on November 16, 2004 Gulf grouper and tilefish referendum, qualifying time period. Those poised to (69 FR 67106), and requested public and other comments opposed a benefit from the IFQ program would be comment. potential IFQ program. Those comments the only people allowed to vote. This The Council is currently developing that expressed opposition to the IFQ heavily skews the outcome. Amendment 29 to the FMP, which program itself fall outside the scope of Response: Section 303A(c)(6)(D) of includes a multi-species IFQ program as this rulemaking. The purpose of this the Magnuson-Stevens Act states, ‘‘For the preferred management approach to rulemaking is to establish the multi-species permits in the Gulf of address overcapacity issues and to procedures, schedule, and eligibility Mexico, only those participants who rationalize effort in the Gulf commercial requirements to conduct a referendum have substantially fished the species grouper and tilefish fisheries. A Public for a potential IFQ program. proposed to be included in the Hearing Draft of Amendment 29 is Opportunities for public comment on individual fishing quota program shall available on the Council’s website at the IFQ program proposal contained in be eligible to vote in such a http://www.gulfcouncil.org. Amendment 29 will be available during referendum.’’ The Council interprets

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‘‘substantially fished’’ to mean a Stevens Act, and other applicable law. the postmark date on the envelope substantial contribution to overall NMFS has reviewed these documents containing the ballots provided by fishery production in total harvest. The from the Council and has concluded NMFS; ballots received after that Council indicated in its referendum that the referendum criteria are deadline will not be considered in initiation request letter that a potential consistent with the guidelines. determining the outcome of the participant’s annual harvest, in Who Will Be Eligible to Vote in the referendum. Although it will not be combination with maintaining a high Referendum? required, voters may want to consider level of harvest during the qualifying submitting their ballots by registered Section 303A(c)(6)(D) of the time period, is the most straight- mail. forward, readily accessible, and accurate Magnuson-Stevens Act establishes means of identifying whether a criteria regarding eligibility of persons How Will the Outcome of the participant has substantially fished for who may vote in the referendum. For Referendum Be Determined? grouper or tilefish species. Under the Gulf fisheries managed with multi- 8,000–lb (3,629–kg) criterion, species permits, such as the Gulf Vote counting will be conducted by individuals eligible to vote in the commercial grouper and tilefish NMFS. Approval or disapproval of the referendum account for 89 percent of fisheries, the Magnuson-Stevens Act referendum will be determined by a grouper and tilefish landings during the states that those participants who have majority (i.e., a number greater than half qualifying time period. substantially fished the species of a total) of the votes cast. NMFS will considered for the IFQ program will be prepare a media release announcing the Purpose of this Final Rule and the eligible to vote in the referendum. The results of the referendum and will Referendum Council’s referendum initiation request distribute the release to all Gulf reef fish NMFS, in accordance with the letter defined ‘‘substantially fished’’ as permitees, including dealers, and other provisions of section 303A(c)(6)(D) of ‘‘only those commercial reef fish permit interested parties within 60 days of the holders, with active or renewable the Magnuson-Stevens Act, will conduct deadline for receiving the ballots from permits (within 1 year of the grace a referendum to determine whether eligible voters. The results will also be period immediately following Amendment 29, as ultimately developed posted on NMFS’ Southeast Regional by the Council, should be submitted to expiration), who have combined average annual grouper and tilefish landings Office’s website at http:// the Secretary for review, and possible sero.nmfs.noaa.gov. approval and implementation. The from logbooks during the qualifying determination will be based on a years of at least 8,000 lb (3,629 kg) (per What Will Happen After the majority vote of eligible voters. The permit).’’ The qualifying years selected Referendum is Conducted? primary purpose of this final rule is to by the Council are 1999 through 2004, notify potential participants in the with an allowance for dropping one NMFS will present the results of the referendum, and members of the public, year. Therefore, NMFS will use landings referendum at the April 13–17, 2009, of the procedures, schedule, and data from logbooks submitted to and Council meeting. If the referendum fails eligibility requirements that NMFS will received by the Science and Research to approve the proposed IFQ program, use in conducting the referendum. The Director, Southeast Fisheries Science the Council may consider an alternative procedures and eligibility criteria used Center by December 31, 2006, for the management approach to control effort for the purposes of conducting the years 1999 through 2004, with the in the Gulf commercial grouper and referendum are independent of the allowance for dropping one year, as the tilefish fisheries, or the Council may procedures and eligibility requirements sole basis to determine those permit modify the proposed IFQ program and in the proposed IFQ program for the holders that meet the Council’s request a new referendum. According to Gulf commercial grouper and tilefish eligibility criterion and will be eligible the guidelines, any request from the fisheries contained in Amendment 29 to to vote in the referendum. Council to initiate a new referendum in the FMP. The proposed IFQ program is Will Votes Be Weighted? the same fishery must include an being developed by the Council through The Council is assigning one vote for explanation of the substantive changes the normal plan amendment and each permit associated with qualifying to the proposed IFQ program or the rulemaking processes and involves landings from the years 1999 through changes in the fishery that would extensive opportunities for public 2004, with no additional vote weighting warrant initiation of an additional review and comment during Council based on catch history. referendum. meetings and public comment on any proposed rule. How Will Votes Be Conducted? If the referendum is approved, the Council is authorized, if it so decides, Referendum Process On or about December 1, 2008, NMFS to submit Amendment 29 and proposed will mail eligible voters a ballot for each regulations to NMFS for review and Will the Referendum Be Conducted in a permit associated with qualifying possible approval and implementation Fair and Equitable Manner? landings from the years 1999 through The Magnuson-Stevens Act requires 2004. NMFS will mail the ballots and of an IFQ program for the Gulf the Secretary to conduct referenda for associated explanatory information, via commercial grouper and tilefish potential IFQ programs in a fair and certified mail return receipt requested, fisheries. The proposed IFQ program equitable manner. NMFS’ referendum to the address of record indicated in was developed through the normal guidelines outline criteria that NMFS NMFS’ permit database for eligible Council process that involved extensive must consider when reviewing the permit holders. The completed ballot opportunities for industry and public Council’s referendum initiation request must be mailed to Susan Gerhart, review and input at various Council letter and supporting analyses to ensure Southeast Regional Office, NMFS, 263 meetings. The public would have the referendum will be conducted in a 13th Avenue South, St. Petersburg, FL additional opportunities to comment fair and equitable manner and is 33701. A referendum ballot must be during public comment periods on consistent with the national standards received at that address by 4:30 p.m., Amendment 29 and the proposed and other provisions of the Magnuson- eastern time, no later than 30 days after regulations.

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Summary Information About the it or lose it’’ policy for IFQ shares, a cost to the Chief Counsel for Advocacy of the Potential IFQ Program recovery plan, and approval of landing Small Business Administration during The current management of Gulf sites. The Council has selected its the proposed rule stage that this action commercial grouper and tilefish preferred alternatives for each of these would not have a significant economic fisheries is based on a traditional actions through the normal Council impact on a substantial number of small command and control approach. This process. If the referendum is approved, entities. The factual basis for this management approach has resulted in the Council, if it so decides, may certification was published in the overcapitalization of the commercial continue with the submission of proposed rule and is not repeated here. grouper and tilefish fisheries which has Amendment 29 to the Secretary for No comments were received regarding caused increased derby fishing review and possible approval and this certification. As a result, no initial conditions and in some years has led to implementation. More information on or final regulatory flexibility analysis is closures of these fisheries prior to the Amendment 29, including Frequently required and none has been prepared. end of the fishing year. The purpose of Asked Questions about the proposed Copies of the RIR and RFAA are IFQ program, may be found on NMFS’ implementing an IFQ program for the available (see ADDRESSES). commercial grouper and tilefish Southeast Regional Office’s website at fisheries is to rationalize effort and http://sero.nmfs.noaa.gov/sf/ IFQ program referenda conducted reduce overcapacity in the fleet. Actions Amendment29.htm. under section 303A(c)(6)(D)(iv) of the Magnuson-Stevens Act are exempt from in Amendment 29 include: Initial Classification eligibility for participation in the IFQ the Paperwork Reduction Act. program, initial apportionment of IFQ The Administrator, Southeast Region, Authority: 16 U.S.C. 1801 et seq. shares, IFQ share categories, multi-use NMFS, determined that this action is Dated: October 24, 2008. allocation and trip allowances, transfer consistent with the Magnuson-Stevens eligibility requirements, IFQ share Act and other applicable laws. Samuel D. Rauch III, ownership caps, IFQ allocation This final rule has been determined to Deputy Assistant Administrator for ownership caps, a procedure to be not significant for purposes of Regulatory Programs, National Marine accommodate adjustments to the Executive Order 12866. Fisheries Service. commercial quota, establishment and The Chief Counsel for Regulation of [FR Doc. E8–25938 Filed 10–29–08; 8:45 am] structure of an appeals process, a ‘‘use the Department of Commerce certified BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 211

Thursday, October 30, 2008

This section of the FEDERAL REGISTER New Jersey Avenue, SE., West Building signed the comment on behalf of an contains notices to the public of the proposed Ground Floor, Room W12–140, association, business, labor union, etc.). issuance of rules and regulations. The Washington, DC 20590–0001. You may review the DOT’s complete purpose of these notices is to give interested • Hand Delivery: Deliver to Mail Privacy Act Statement in the Federal persons an opportunity to participate in the address above between 9 a.m. and 5 Register published on April 11, 2000 rule making prior to the adoption of the final rules. p.m., Monday through Friday, except (65 FR 19477–78). Federal holidays. Discussion • Fax: (202) 493–2251. DEPARTMENT OF TRANSPORTATION The European Aviation Safety Agency Examining the AD Docket (EASA), which is the Technical Agent Federal Aviation Administration You may examine the AD docket on for the Member States of the European the Internet at http:// Community, has issued EASA AD 2008– 14 CFR Part 39 www.regulations.gov; or in person at the 0077, dated April 28, 2008 (and Docket Operations office between 9 a.m. corrected May 6, 2008) (referred to after [Docket No. FAA–2008–0935; Directorate and 5 p.m., Monday through Friday, this as ‘‘the MCAI’’), to correct an unsafe Identifier 2008–NE–28–AD] except Federal holidays. The AD docket condition for the specified products. RIN 2120–AA64 contains this proposed AD, the The MCAI states: regulatory evaluation, any comments Airworthiness Directives; Turbomeca Several cases of loss of internal received, and other information. The components from the HMU low fuel pressure Arriel 2B and 2B1 Turboshaft Engines street address for the Docket Operations switch Hydra-Electric P/N 9 550 17 956 0 AGENCY: Federal Aviation office (telephone (800) 647–5527) is the into the fuel system, have been reported on Administration (FAA), DOT. same as the Mail address provided in Arriel 2 engines. The loss of internal components from the ACTION: Notice of proposed rulemaking the ADDRESSES section. Comments will be available in the AD docket shortly low fuel pressure switch into the fuel system (NPRM). may lead to a rupture of the HP–LP pumps after receipt. drive shaft shear pin, and thus to a possible SUMMARY: We propose to adopt a new FOR FURTHER INFORMATION CONTACT: uncommanded IFSD. On a single-engine airworthiness directive (AD) for the James Lawrence, Aerospace Engineer, helicopter, an uncommanded IFSD results in products listed above. This proposed Engine Certification Office, FAA, Engine an emergency autorotation landing and in AD results from mandatory continuing & Propeller Directorate, 12 New England certain conditions may lead to an accident. airworthiness information (MCAI) Executive Park, Burlington, MA 01803; The evaluation of this condition prompts issued by an aviation authority of e-mail: [email protected]; the issuance of this AD, which requires the following actions for the HMUs installed on another country to identify and correct telephone (781) 238–7176; fax (781) an unsafe condition on an aviation Arriel 2 single-engine applications in order 238–7199. to: product. The MCAI describes the unsafe SUPPLEMENTARY INFORMATION: • Verify the part number of the low fuel condition as: pressure switch; Several cases of loss of internal Comments Invited • If installed, replace the Hydra-Electric components from the Hydro Mechanical Unit We invite you to send any written low fuel pressure switch P/N 9 550 17 956 (HMU) low fuel pressure switch Hydra- relevant data, views, or arguments about 0 (with either of two different P/N low fuel Electric part number (P/N) 9 550 17 956 0 this proposed AD. Send your comments pressure switches, referenced in the MCAI). • In case a Hydra-Electric switch P/N 9 into the fuel system, have been reported on to an address listed under the Arriel 2 engines. 550 17 956 0 is installed or may have been The loss of internal components from the ADDRESSES section. Include ‘‘Docket No. installed on the HMU, verify that no parts are low fuel pressure switch into the fuel system FAA–2008–0935; Directorate Identifier found in the chamber of the HMU body may lead to a rupture of the HP–LP pumps 2008–NE–28–AD’’ at the beginning of where the base of the low fuel pressure drive shaft shear pin, and thus to a possible your comments. We specifically invite switch has been installed. uncommanded in-flight shutdown (IFSD). On comments on the overall regulatory, a single-engine helicopter, an uncommanded You may obtain further information economic, environmental, and energy by examining the MCAI in the AD IFSD results in an emergency autorotation aspects of this proposed AD. We will landing and in certain conditions may lead docket. to an accident. consider all comments received by the closing date and may amend this Relevant Service Information We are proposing this AD to prevent proposed AD based on those comments. Turbomeca has issued Mandatory forced autorotation landing, or an We will post all comments we Service Bulletin No. 292 73 2826, dated accident. receive, without change, to http:// March 13, 2008. The actions described DATES: We must receive comments on www.regulations.gov, including any in this service information are intended this proposed AD by December 1, 2008. personal information you provide. We to correct the unsafe condition ADDRESSES: You may send comments by will also post a report summarizing each identified in the MCAI. any of the following methods: substantive verbal contact with FAA • Federal eRulemaking Portal: Go to personnel concerning this proposed AD. FAA’s Determination and Requirements http://www.regulations.gov and follow Using the search function of the Web of This Proposed AD the instructions for sending your site, anyone can find and read the This product has been approved by comments electronically. comments in any of our dockets, the aviation authority of France, and is • Mail: Docket Management Facility, including, if provided, the name of the approved for operation in the United U.S. Department of Transportation, 1200 individual who sent the comment (or States. Pursuant to our bilateral

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agreement with France, they have products identified in this rulemaking Reason notified us of the unsafe condition action. (d) European Aviation Safety Agency described in the EASA AD and service (EASA) AD No. 2008–0077, dated March 13, Regulatory Findings information referenced above. We are 2006 (and corrected May 6, 2008), states: proposing this AD because we evaluated We determined that this proposed AD Several cases of loss of internal all information provided by EASA and would not have federalism implications components from the Hydro Mechanical Unit determined the unsafe condition exists under Executive Order 13132. This (HMU) low fuel pressure switch Hydra- and is likely to exist or develop on other proposed AD would not have a Electric part number (P/N) 9 550 17 956 0 products of the same type design. This substantial direct effect on the States, on into the fuel system, have been reported on Arriel 2 engines. proposed AD would require a one-time the relationship between the national inspection for affected low fuel pressure The loss of internal components from the Government and the States, or on the low fuel pressure switch into the fuel system switches, for evidence of an affected distribution of power and may lead to a rupture of the HP–LP pumps switch previously installed and responsibilities among the various drive shaft shear pin, and thus to a possible inspection for switch parts missing or levels of government. uncommanded in-flight shutdown (IFSD). On fallen into the HMU well. For the reasons discussed above, I a single-engine helicopter, an uncommanded Difference Between This Proposed AD certify this proposed regulation: IFSD results in an emergency autorotation landing and in certain conditions may lead and the MCAI or Service Information 1. Is not a ‘‘significant regulatory to an accident. We have reviewed the MCAI and action’’ under Executive Order 12866; We are issuing this AD to prevent forced related service information and, in 2. Is not a ‘‘significant rule’’ under the autorotation landing, or an accident. general, agree with their substance. We DOT Regulatory Policies and Procedures Actions and Compliance have proposed to not reference the P/Ns (44 FR 11034, February 26, 1979); and of the serviceable low pressure switch (e) Unless already done, do the following 3. Will not have a significant as the MCAI does, in order to follow actions. economic impact, positive or negative, FAA policies. This difference is (1) No later than September 30, 2009, on a substantial number of small entities perform a one-time inspection of the HMU, described in a separate paragraph of the under the criteria of the Regulatory using paragraph 2 of Turbomeca Mandatory proposed AD. This requirement, if Flexibility Act. Service Bulletin (MSB) No. 292 73 2826, ultimately adopted, will take dated March 13, 2008, to identify the low precedence over the actions in the We prepared a regulatory evaluation fuel pressure switch installed on the adjusted MCAI. of the estimated costs to comply with HMU. this proposed AD and placed it in the (2) If a Hydra-Electric low fuel pressure Costs of Compliance AD docket. switch, part number (P/N) 9 550 17 956 0 is installed: Based on the service information, we List of Subjects in 14 CFR Part 39 estimate that this proposed AD would (i) Inspect the low fuel pressure switch and affect about 414 products installed on Air transportation, Aircraft, Aviation chamber of the HMU body. helicopters of U.S. registry. We also safety, Incorporation by reference, (ii) If any parts from the low fuel pressure switch are missing or found in the HMU estimate that it would take about 1 Safety. chamber, replace the HMU with a new or work-hour per product to comply with The Proposed Amendment overhauled HMU equipped with a this proposed AD. The average labor serviceable low fuel pressure switch. rate is $80 per work-hour. Required Accordingly, under the authority (iii) If not, replace only the low fuel parts would cost about $256 per delegated to me by the Administrator, pressure switch with a serviceable low fuel product. Based on these figures, we the FAA proposes to amend 14 CFR part pressure switch. estimate the cost of the proposed AD on 39 as follows: (3) If a low fuel pressure switch other than U.S. operators to be $139,104. Our cost a Hydra-Electric low fuel pressure switch, P/ estimate is exclusive of possible PART 39—AIRWORTHINESS N 9 550 17 956 0 is installed, and that is the DIRECTIVES only type of low fuel pressure switch that has warranty coverage. been installed since new, repair, or overhaul, Authority for This Rulemaking no further action is required. 1. The authority citation for part 39 (4) If a Hydra-Electric switch, P/N 9 550 17 Title 49 of the United States Code continues to read as follows: 956 0, has been or may have been installed specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. previously, and the conditions of paragraph rules on aviation safety. Subtitle I, (e)(3) of this AD are not met: section 106, describes the authority of § 39.13 [Amended] (i) Inspect the chamber of the HMU body. the FAA Administrator. ‘‘Subtitle VII: (ii) If any parts are found in the HMU 2. The FAA amends § 39.13 by adding chamber, replace the HMU with a new or Aviation Programs,’’ describes in more the following new AD: detail the scope of the Agency’s overhauled HMU equipped with a authority. Turbomeca: Docket No. FAA–2008–0935; serviceable low fuel pressure switch. Directorate Identifier 2008–NE–28–AD. We are issuing this rulemaking under FAA AD Difference the authority described in ‘‘Subtitle VII, Comments Due Date (f) This AD differs from the Mandatory Part A, Subpart III, Section 44701: (a) We must receive comments by Continuing Airworthiness Information General requirements.’’ Under that December 1, 2008. (MCAI) and/or service information, by not section, Congress charges the FAA with referencing the P/Ns of the serviceable low promoting safe flight of civil aircraft in Affected Airworthiness Directives (ADs) fuel pressure switch, and, defining a air commerce by prescribing regulations (b) None. serviceable low fuel pressure switch, for the purpose of this AD. for practices, methods, and procedures Applicability the Administrator finds necessary for (c) This AD applies to Turbomeca Arriel 2B Definition safety in air commerce. This regulation and 2B1 turboshaft engines. These engines (g) For the purpose of this AD, a is within the scope of that authority are installed on, but not limited to, serviceable low fuel pressure switch is a because it addresses an unsafe condition Eurocopter France AS350B3 and EC130 B4 switch that has a P/N other than P/N 9 550 that is likely to exist or develop on helicopters. 17 956 0.

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Alternative Methods of Compliance since delivery. We are proposing this consider all comments received by the (AMOCs) AD to prevent increased structural loads closing date and may amend this (h) The Manager, Engine Certification on the aft engine mount, which could proposed AD because of those Office, FAA, has the authority to approve result in failure of the aft engine mount comments. AMOCs for this AD, if requested, using the and consequent separation of the engine We will post all comments we procedures found in 14 CFR 39.19. from the airplane. receive, without change, to http:// Related Information DATES: We must receive comments on www.regulations.gov, including any (i) Refer to MCAI EASA AD 2008–0077, this proposed AD by December 15, personal information you provide. We dated April 28, 2008 (and corrected May 6, 2008. will also post a report summarizing each 2008), for related information. substantive verbal contact we receive ADDRESSES: You may send comments by (j) Contact James Lawrence, Aerospace about this proposed AD. any of the following methods: Engineer, Engine Certification Office, FAA, • Engine & Propeller Directorate, 12 New Federal eRulemaking Portal: Go to Discussion England Executive Park, Burlington, MA http://www.regulations.gov. Follow the On January 21, 2003, we issued AD 01803; e-mail: [email protected]; instructions for submitting comments. 2003–03–01, amendment 39–13025 (68 • telephone (781) 238–7176; fax (781) 238– Fax: 202–493–2251. FR 4367, January 29, 2003), for all • 7199, for more information about this AD. Mail: U.S. Department of Boeing Model 737–600, –700, –700C, Issued in Burlington, Massachusetts, on Transportation, Docket Operations, M– –800, and –900 series airplanes. That October 23, 2008. 30, West Building Ground Floor, Room AD requires reviewing the airplane Peter A. White, W12–140, 1200 New Jersey Avenue, SE., maintenance records to determine Washington, DC 20590. Assistant Manager, Engine and Propeller • whether an engine has been removed Directorate, Aircraft Certification Service. Hand Delivery: U.S. Department of from the airplane since the airplane was [FR Doc. E8–25887 Filed 10–29–08; 8:45 am] Transportation, Docket Operations, M– manufactured. For airplanes on which 30, West Building Ground Floor, Room BILLING CODE 4910–13–P an engine has been removed, that AD W12–140, 1200 New Jersey Avenue, SE., requires an inspection of the aft engine Washington, DC 20590, between 9 a.m. mount to determine if the center link DEPARTMENT OF TRANSPORTATION and 5 p.m., Monday through Friday, assembly is correctly installed, and except Federal holidays. follow-on actions if necessary. That AD Federal Aviation Administration For service information identified in resulted from reports indicating that this AD, contact Boeing Commercial operators found that the center link 14 CFR Part 39 Airplanes, P.O. Box 3707, Seattle, assembly for the aft engine mount was Washington 98124–2207. [Docket No. FAA–2008–1118; Directorate reversed on several airplanes. We issued Identifier 2007–NM–318–AD] Examining the AD Docket that AD to prevent increased structural loads on the aft engine mount, which RIN 2120–AA64 You may examine the AD docket on could result in failure of the aft engine the Internet at http:// mount and consequent separation of the Airworthiness Directives; Boeing www.regulations.gov; or in person at the engine from the airplane. Model 737–600, –700, –700C, –800, and Docket Management Facility between 9 –900 Series Airplanes a.m. and 5 p.m., Monday through Actions Since Existing AD Was Issued AGENCY: Federal Aviation Friday, except Federal holidays. The AD Since we issued AD 2003–03–01, the Administration (FAA), Department of docket contains this proposed AD, the manufacturer informed us that it is Transportation (DOT). regulatory evaluation, any comments possible that some center links were received, and other information. The ACTION: Notice of proposed rulemaking incorrectly installed in an aft engine street address for the Docket Office (NPRM). mount before the airplane was (telephone 800–647–5527) is in the delivered. In AD 2003–03–01 inspection SUMMARY: The FAA proposes to ADDRESSES section. Comments will be of the aft engine mounts was required supersede an existing airworthiness available in the AD docket shortly after only for airplanes that had an engine directive (AD) that applies to all Boeing receipt. change after the airplane was delivered Model 737–600, –700, –700C, –800, and FOR FURTHER INFORMATION CONTACT: to the operator. The inspection is now –900 series airplanes. The existing AD Allen Rauschendorfer, Aerospace necessary for all airplanes, line numbers currently requires reviewing the Engineer, Airframe Branch, ANM–120S, 1 through 1277 inclusive. airplane maintenance records to FAA, Seattle Aircraft Certification determine whether an engine has been Office, 1601 Lind Avenue, SW., Renton, Relevant Service Information removed from the airplane since the Washington 98057–3356; telephone We have reviewed Boeing Alert airplane was manufactured. For (425) 917–6432; fax (425) 917–6590. Service Bulletin 737–71A1462, Revision airplanes on which an engine has been SUPPLEMENTARY INFORMATION: 3, dated May 20, 2004. The procedures removed, the existing AD also requires in Revision 3 of the service bulletin are an inspection of the aft engine mount to Comments Invited essentially the same as those in Boeing determine if the center link assembly is We invite you to send any written Alert Service Bulletin 737–71A1462, correctly installed, and follow-on relevant data, views, or arguments about Revision 1, dated November 7, 2002. We actions if necessary. This proposed AD this proposed AD. Send your comments referred to Revision 1 of the service would require the same actions for to an address listed under the bulletin as the appropriate source of airplanes on which the engine has not ADDRESSES section. Include ‘‘Docket No. service information for accomplishing been previously removed. This FAA–2008–1118; Directorate Identifier the actions required by AD 2003–03–01. proposed AD results from reports 2007–NM–318–AD’’ at the beginning of However, Revision 3 of the service indicating that operators found that the your comments. We specifically invite bulletin also specifies inspecting to center link assembly for the aft engine comments on the overall regulatory, determine if the center link assembly is mount was reversed on several airplanes economic, environmental, and energy installed correctly on any installed that had not had an engine removed aspects of this proposed AD. We will engine that has not been removed from

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the airplane since the airplane’s those conditions in one of the following REVISED PARAGRAPH IDENTIFIERS delivery. Revision 3 of the service ways: bulletin also specifies repeating the • Using a method that we approve; or Corresponding inspection during each subsequent • Using data that meet the Requirement in AD requirement certification basis of the airplane, and 2003–03–01 in this engine change for each aft engine proposed AD mount. Finally, Revision 3 also specifies that have been approved by an that adding permanent part marks on Authorized Representative for the Paragraph (a) ...... Paragraph (f). the center link assembly and the hanger Boeing Commercial Airplanes Paragraph (b) ...... Paragraph (g). fitting ends the need for the repetitive Delegation Option Authorization (DOA) Paragraph (c) ...... Paragraph (h). inspections. Accomplishing the actions Organization whom we have authorized Paragraph (d) ...... Paragraph (i). specified in the service information is to make those findings. Paragraph (e) ...... Paragraph (m). Paragraph (f) ...... Paragraph (n). intended to adequately address the Clarification of Certain Actions unsafe condition. Revision 3 of the service bulletin We have also removed Note 1 of the FAA’s Determination and Requirements specifies repeating the inspection existing AD and re-numbered of the Proposed AD during each subsequent engine change subsequent notes accordingly. We have for each aft engine mount. This also revised Note 2 and Note 3 of the We have evaluated all pertinent proposed AD does not specify a existing AD (Note 1 and Note 2 of this information and identified an unsafe repetitive inspection but instead proposed AD) to provide a more up-to- condition that is likely to develop on specifies in paragraph (n), ‘‘Parts date definition of a general visual other airplanes of the same type design. Installation,’’ that no person may install inspection and a detailed inspection. For this reason, we are proposing this an engine on any airplane unless the Boeing Commercial Airplanes has AD, which would supersede AD 2003– center link assembly of the aft engine received a DOA. We have revised 03–01 and would retain the mount is found to be installed correctly. paragraph (i) of this AD (paragraph (d) requirements of the existing AD. This Revision 3 of the service bulletin also of AD 2003–03–01) to delegate the proposed AD would also require the specifies that adding permanent part authority to approve an alternative same actions for airplanes on which the marks on the center link assembly and method of compliance for any repair engine has not been previously the hanger fitting ends the need for the required by this proposed AD to an removed. This proposed AD would also repetitive inspections. As noted above, Authorized Representative for the require accomplishing the actions this proposed AD would not include a Boeing Commercial Airplanes DOA specified in the service bulletin repetitive inspection requirement. In rather than a Designated Engineering described previously, except as addition, because the affected parts are Representative (DER). We have also discussed under ‘‘Difference Between rotable, the repetitive inspections simplified paragraph (i) of this AD by the Proposed AD and the Service referred to in the service bulletin would referring to the ‘‘Alternative Methods of Bulletin.’’ be terminated only as long as the engine Compliance (AMOCs)’’ paragraph (o) of Difference Between the Proposed AD stays on the airplane. this proposed AD for repair methods, which includes a reference to the DOA. and the Service Bulletin Changes to Existing AD Costs of Compliance Boeing Alert Service Bulletin 737– This proposed AD would retain the 71A1462, Revision 3 specifies requirements of AD 2003–03–01. Since There are about 1,277 airplanes of the contacting the part manufacturer (CFMI) AD 2003–03–01 was issued, the AD affected design in the worldwide fleet. for more instructions if damage is found format has been revised, and certain This proposed AD would affect about to the engine mounting lugs and the paragraphs have been rearranged. As a 500 airplanes of U.S. registry. The adjacent engine turbine rear frame. result, the corresponding paragraph average labor rate is $80 per work hour. (Damage includes cracking, yielding, identifiers have changed in this The following table provides the buckling, and wear.) However, this proposed AD, as listed in the following estimated costs for U.S. operators to proposed AD would require repairing table: comply with this proposed AD.

ESTIMATED COSTS

Cost per Action Work hours Parts airplane Fleet cost

Maintenance records review (required by AD 2003–03–01) ...... 1 $0 $80 $40,000 Inspection for correct installation of center link assembly (new proposed action) ...... 1 0 80 40,000

Authority for This Rulemaking ‘‘General requirements.’’ Under that Regulatory Findings Title 49 of the United States Code section, Congress charges the FAA with promoting safe flight of civil aircraft in We have determined that this specifies the FAA’s authority to issue proposed AD would not have federalism rules on aviation safety. Subtitle I, air commerce by prescribing regulations implications under Executive Order Section 106, describes the authority of for practices, methods, and procedures the FAA Administrator. Subtitle VII, the Administrator finds necessary for 13132. This proposed AD would not Aviation Programs, describes in more safety in air commerce. This regulation have a substantial direct effect on the detail the scope of the Agency’s is within the scope of that authority States, on the relationship between the authority. because it addresses an unsafe condition national Government and the States, or We are issuing this rulemaking under that is likely to exist or develop on on the distribution of power and the authority described in Subtitle VII, products identified in this rulemaking responsibilities among the various Part A, Subpart III, Section 44701, action. levels of government.

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For the reasons discussed above, I Compliance the center link assembly, right link assembly, certify that the proposed regulation: (e) You are responsible for having the aft mount hanger assembly, and link pins; for cracking, yielding, buckling, or wear damage. 1. Is not a ‘‘significant regulatory actions required by this AD performed within action’’ under Executive Order 12866; the compliance times specified, unless the Note 2: For the purposes of this AD, a actions have already been done. detailed inspection is: ‘‘An intensive 2. Is not a ‘‘significant rule’’ under the examination of a specific item, installation, DOT Regulatory Policies and Procedures Restatement of the Requirements of AD or assembly to detect damage, failure, or (44 FR 11034, February 26, 1979); and 2003–03–01 irregularity. Available lighting is normally 3. Will not have a significant Review of Maintenance Records supplemented with a direct source of good economic impact, positive or negative, lighting at an intensity deemed appropriate. (f) Within 90 days after February 13, 2003 Inspection aids such as mirror, magnifying on a substantial number of small entities (the effective date of AD 2003–03–01), review lenses, etc., may be necessary. Surface under the criteria of the Regulatory the airplane maintenance records to cleaning and elaborate procedures may be Flexibility Act. determine whether either engine has been required.’’ removed since the airplane’s date of We prepared a regulatory evaluation manufacture. If neither engine has been Repair of the estimated costs to comply with removed since the airplane’s date of (i) If any cracking, yielding, buckling, or this proposed AD and placed it in the manufacture, no further action is required by wear damage is found during the inspections AD docket. See the ADDRESSES section this paragraph; however paragraph (n) of this required by paragraphs (h)(2) and (h)(3) of AD continues to apply. for a location to examine the regulatory this AD: Before further flight, replace the evaluation. Inspection To Determine if Center Link discrepant part with a new or serviceable List of Subjects in 14 CFR Part 39 Assembly Is Installed Correctly part, or repair in accordance with a method (g) For any installed engine that is found approved by the Manager, Seattle Aircraft Air transportation, Aircraft, Aviation to have been removed from the airplane since Certification Office (ACO), FAA; or using a safety, Incorporation by reference, the airplane’s date of manufacture: Within 90 method approved in accordance with the Safety. days after February 13, 2003, do a one-time procedures specified in paragraph (o) of this general visual inspection to determine if the AD. The Proposed Amendment center link assembly of the aft engine mount New Requirements of This AD Accordingly, under the authority is installed correctly, per the Accomplishment Instructions of Boeing Alert Inspection of Engines That Have Not Been delegated to me by the Administrator, Service Bulletin 737–71A1462, Revision 1, Removed the FAA proposes to amend 14 CFR part dated November 7, 2002; or Revision 3, dated (j) For all airplanes identified in Boeing 39 as follows: May 20, 2004. If the center link assembly is Alert Service Bulletin 737–71A1462, installed correctly, as specified in the service Revision 3, dated May 20, 2004: For any PART 39—AIRWORTHINESS bulletin, no further action is required by installed engine that has not been removed DIRECTIVES paragraph (g), (h), or (i) of this AD for that from the airplane since the airplane’s date of engine; however paragraph (n) of this AD manufacture, within 90 days after the 1. The authority citation for part 39 continues to apply. effective date of this AD, do a detailed continues to read as follows: Note 1: For the purposes of this AD, a inspection to determine if the center link assembly of the aft engine mount is installed Authority: 49 U.S.C. 106(g), 40113, 44701. general visual inspection is: ‘‘A visual examination of an interior or exterior area, correctly, in accordance with the § 39.13 [Amended] installation, or assembly to detect obvious Accomplishment Instructions of Boeing Alert damage, failure, or irregularity. This level of Service Bulletin 737–71A1462, Revision 3, 2. The Federal Aviation inspection is made from within touching dated May 20, 2004. Administration (FAA) amends § 39.13 distance unless otherwise specified. A mirror Follow-on and Corrective Actions by removing amendment 39–13025 (68 may be necessary to ensure visual access to (k) For any center link assembly that is FR 4367, January 29, 2003) and adding all surfaces in the inspection area. This level found installed incorrectly during any the following new airworthiness of inspection is made under normally inspection required by paragraph (j) of this available lighting conditions such as directive (AD): AD: Before further flight, do the actions daylight, hangar lighting, flashlight, or required by paragraphs (k)(1), (k)(2), and Boeing: Docket No. FAA–2008–1118; droplight and may require removal or (k)(3) of this AD, per the Accomplishment Directorate Identifier 2007–NM–318–AD. opening of access panels or doors. Stands, Instructions of Boeing Alert Service Bulletin ladders, or platforms may be required to gain Comments Due Date 737–71A1462, Revision 3, dated May 20, proximity to the area being checked.’’ (a) The FAA must receive comments on 2004, except that it is not necessary to submit this AD action by December 15, 2008. Follow-on and Corrective Actions a report of findings to the airplane manufacturer. Affected ADs (h) For any center link assembly that is (1) Remove the center link assembly and (b) This AD supersedes AD 2003–03–01. found installed incorrectly during the install it correctly. inspection required by paragraph (g) of this (2) Perform a detailed inspection of the Applicability AD: Before further flight, do the actions in engine mounting lugs and engine turbine rear (c) This AD applies to all Boeing Model paragraphs (h)(1), (h)(2), and (h)(3) of this frame for cracking, yielding, buckling, or 737–600, –700, –700C, –800, and –900 series AD, per the Accomplishment Instructions of wear damage. airplanes, certificated in any category. Boeing Alert Service Bulletin 737–71A1462, (3) Perform a detailed inspection of the Revision 1, dated November 7, 2002; or hardware for the aft engine mount; including Unsafe Condition Revision 3, dated May 20, 2004; except that the center link assembly, right link assembly, (d) This AD results from reports indicating it is not necessary to submit a report of aft mount hanger assembly, and link pins; for that operators found that the center link findings to the airplane manufacturer. cracking, yielding, buckling, or wear damage. assembly for the aft engine mount was (1) Remove the center link assembly and reversed on several airplanes that had not install it correctly. Repair had an engine removed since delivery. We (2) Perform a detailed inspection of the (l) If any cracking, yielding, buckling, or are issuing this AD to prevent increased engine mounting lugs and engine turbine rear wear damage is found during the inspections structural loads on the aft engine mount, frame for cracking, yielding, buckling, or required by paragraphs (k)(2) and (k)(3) of which could result in failure of the aft engine wear damage. this AD, and Boeing Alert Service Bulletin mount and consequent separation of the (3) Perform a detailed inspection of the 737–71A1462, Revision 3, dated May 20, engine from the airplane. hardware for the aft engine mount; including 2004, specifies to contact Boeing or the part

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manufacturer: Before further flight, replace DEPARTMENT OF TRANSPORTATION Examining the AD Docket the discrepant part (e.g., parts with cracking, yielding, buckling, and wear damage) with a Federal Aviation Administration You may examine the AD docket on new or serviceable part, or repair using a the Internet at http:// method approved in accordance with the 14 CFR Part 39 www.regulations.gov; or in person at the procedures specified in paragraph (o) of this Docket Operations office between 9 a.m. AD. [Docket No. FAA–2008–1119; Directorate and 5 p.m., Monday through Friday, Credit for Actions Done Using Previous Identifier 2008–NM–112–AD] except Federal holidays. The AD docket Service Information RIN 2120–AA64 contains this proposed AD, the (m) Inspections and corrective actions regulatory evaluation, any comments done before the effective date of this AD in Airworthiness Directives; Fokker F.28 received, and other information. The accordance with a service bulletin listed in Mark 0070 and 0100 Airplanes street address for the Docket Operations Table 1 of this AD are acceptable for office (telephone (800) 647–5527) is in AGENCY: Federal Aviation compliance with the corresponding the ADDRESSES section. Comments will Administration (FAA), DOT. requirements of this AD. be available in the AD docket shortly ACTION: Notice of proposed rulemaking after receipt. TABLE 1—PREVIOUS SERVICE (NPRM). BULLETINS FOR FURTHER INFORMATION CONTACT: Tom SUMMARY: We propose to adopt a new Rodriguez, Aerospace Engineer, Boeing Alert airworthiness directive (AD) for the International Branch, ANM–116, Service Revision Date products listed above that would Transport Airplane Directorate, FAA, Bulletin supersede an existing AD. This 1601 Lind Avenue, SW., Renton, proposed AD results from mandatory Washington 98057–3356; telephone 737–71A1462 .. Original .. Aug. 29, 2002. 737–71A1462 .. 1 ...... Nov. 7, 2002. continuing airworthiness information (425) 227–1137; fax (425) 227–1149. 737–71A1462 .. 2 ...... May 29, 2003. (MCAI) originated by an aviation SUPPLEMENTARY INFORMATION: authority of another country to identify Parts Installation and correct an unsafe condition on an Comments Invited (n) As of the effective date of this AD, no aviation product. The MCAI describes We invite you to send any written person may install an engine on any airplane the unsafe condition as: relevant data, views, or arguments about unless the inspections specified in paragraph Several reports have been received about this proposed AD. Send your comments (g) or (j) of this AD are accomplished and the roll control problems due to frozen moisture to an address listed under the center link assembly of the aft engine mount on the aileron pulleys that are located in the ADDRESSES section. Include ‘‘Docket No. is found to be installed correctly. LH [left-hand] and RH [right-hand] Main FAA–2008–1119; Directorate Identifier Alternative Methods of Compliance Landing Gear (MLG) wheel bays on the 2008–NM–112–AD’’ at the beginning of (AMOCs) centre wing rear spar, under the wing to fuselage fairings. Investigation revealed that your comments. We specifically invite (o)(1) The Manager, Seattle Aircraft improper sealing of the aerodynamic seals of comments on the overall regulatory, Certification Office (ACO) FAA, ATTN: Allen the Wing-to-Fuselage Fairings can cause rain- economic, environmental, and energy Rauschendorfer, Aerospace Engineer, or washwater and de-icing fluids to leak onto aspects of this proposed AD. We will Airframe Branch, ANM–120S, FAA, Seattle the affected aileron pulleys. Exposure of the Aircraft Certification Office, 1601 Lind consider all comments received by the aileron pulleys to the leaked moisture in Avenue, SW., Renton, Washington 98057– closing date and may amend this freezing condition can result in restricted 3356; telephone (425) 917–6432; fax (425) proposed AD based on those comments. aileron control movement (partly jammed) 917–6590; has the authority to approve We will post all comments we and/or higher control forces. This condition, AMOCs for this AD, if requested using the receive, without change, to http:// procedures found in 14 CFR 39.19. if not corrected, could lead to partial loss of control of the aircraft. * * * www.regulations.gov, including any (2) To request a different method of personal information you provide. We compliance or a different compliance time * * * * * for this AD, follow the procedures in 14 CFR will also post a report summarizing each 39.19. Before using any approved AMOC on The proposed AD would require actions substantive verbal contact we receive any airplane to which the AMOC applies, that are intended to address the unsafe about this proposed AD. condition described in the MCAI. notify your appropriate principal inspector Discussion (PI) in the FAA Flight Standards District DATES: We must receive comments on Office (FSDO), or lacking a PI, your local this proposed AD by December 1, 2008. On February 15, 2008, we issued AD FSDO. 2008–04–22, Amendment 39–15394 (73 (3) An AMOC that provides an acceptable ADDRESSES: You may send comments by any of the following methods: FR 10650, February 28, 2008). That AD level of safety may be used for any repair required actions intended to address an required by this AD, if it is approved by an • Federal eRulemaking Portal: Go to Authorized Representative for the Boeing http://www.regulations.gov. Follow the unsafe condition on the products listed Commercial Airplanes Delegation Option instructions for submitting comments. above. Authorization Organization who has been • Fax: (202) 493–2251. Since we issued AD 2008–04–22, new authorized by the Manager, Seattle ACO, to • Mail: U.S. Department of reports of problems due to freezing make those findings. For a repair method to Transportation, Docket Operations, M– moisture in the same area addressed by be approved, the repair must meet the 30, West Building Ground Floor, Room AD 2008–04–22 have been received. certification basis of the airplane, and the W12–140, 1200 New Jersey Avenue, SE., The European Aviation Safety Agency approval must specifically refer to this AD. Washington, DC 20590. (EASA), which is the Technical Agent Issued in Renton, Washington, on October • Hand Delivery: U.S. Department of for the Member States of the European 10, 2008. Transportation, Docket Operations, M– Community, has issued EASA Ali Bahrami, 30, West Building Ground Floor, Room Airworthiness Directive 2008–0079, Manager, Transport Airplane Directorate, W12–40, 1200 New Jersey Avenue, SE., dated April 24, 2008 (referred to after Aircraft Certification Service. Washington, DC, between 9 a.m. and 5 this as ‘‘the MCAI’’), to correct an unsafe [FR Doc. E8–25903 Filed 10–29–08; 8:45 am] p.m., Monday through Friday, except condition for the specified products. BILLING CODE 4910–13–P Federal holidays. The MCAI states:

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Several reports have been received about information are intended to correct the air commerce by prescribing regulations roll control problems due to frozen moisture unsafe condition identified in the for practices, methods, and procedures on the aileron pulleys that are located in the MCAI. the Administrator finds necessary for LH [left-hand] and RH [right-hand] Main safety in air commerce. This regulation Landing Gear (MLG) wheel bays on the FAA’s Determination and Requirements is within the scope of that authority centre wing rear spar, under the wing to of This Proposed AD fuselage fairings. Investigation revealed that because it addresses an unsafe condition improper sealing of the aerodynamic seals of This product has been approved by that is likely to exist or develop on the Wing-to-Fuselage Fairings can cause rain- the aviation authority of another products identified in this rulemaking or washwater and de-icing fluids to leak onto country, and is approved for operation action. the affected aileron pulleys. Exposure of the in the United States. Pursuant to our aileron pulleys to the leaked moisture in bilateral agreement with the State of Regulatory Findings freezing condition can result in restricted Design Authority, we have been notified We determined that this proposed AD aileron control movement (partly jammed) of the unsafe condition described in the would not have federalism implications and/or higher control forces. This condition, MCAI and service information under Executive Order 13132. This if not corrected, could lead to partial loss of referenced above. We are proposing this proposed AD would not have a control of the aircraft. To address this unsafe condition, Fokker Services originally AD because we evaluated all pertinent substantial direct effect on the States, on introduced SBF100–53–101 which was made information and determined an unsafe the relationship between the national mandatory through CAA Netherlands (CAA– condition exists and is likely to exist or Government and the States, or on the NL) AD NL–2005–013 [which corresponds to develop on other products of the same distribution of power and FAA AD 2008–04–22, amendment 39–15394] type design. responsibilities among the various with a compliance time of 12 months after levels of government. November 1, 2005. Differences Between This AD and the For the reasons discussed above, I Following this, new reports of problems MCAI or Service Information certify this proposed regulation: due to freezing moisture in the same area We have reviewed the MCAI and 1. Is not a ‘‘significant regulatory have been received. This has prompted related service information and, in action’’ under Executive Order 12866; Fokker Services to publish SBF100–53–107, general, agree with their substance. But 2. Is not a ‘‘significant rule’’ under the which introduces an additional one-time DOT Regulatory Policies and Procedures inspection [for deviations] of the we might have found it necessary to use aerodynamic seals of the Wing-to-Fuselage different words from those in the MCAI (44 FR 11034, February 26, 1979); and Fairings and the application of an improved to ensure the AD is clear for U.S. 3. Will not have a significant sealing of the aerodynamic seal by means of operators and is enforceable. In making economic impact, positive or negative, a fillet seam between the upper left and right these changes, we do not intend to differ on a substantial number of small entities fairings and the fuselage skin. substantively from the information under the criteria of the Regulatory For the reasons described above, this EASA provided in the MCAI and related Flexibility Act. AD supersedes CAA–NL AD NL–2005–013 service information. We prepared a regulatory evaluation and requires an additional one-time We might also have proposed of the estimated costs to comply with inspection [for deviations] and application of this proposed AD and placed it in the improved sealing. different actions in this AD from those in the MCAI in order to follow FAA AD docket. This action retains the inspection in AD policies. Any such differences are List of Subjects in 14 CFR Part 39 2008–04–22. Doing the additional highlighted in a Note within the inspection terminates the requirement proposed AD. Air transportation, Aircraft, Aviation to do the inspection required by the safety, Safety. Costs of Compliance existing AD. The additional inspection The Proposed Amendment for deviations includes inspecting for fit Based on the service information, we between the left-hand and right-hand estimate that this proposed AD would Accordingly, under the authority wing-to-fuselage fairings and the affect about 7 products of U.S. registry. delegated to me by the Administrator, fuselage skin; inspecting for damage to We also estimate that it would take the FAA proposes to amend 14 CFR part the aerodynamic seal on the fairings; about 3 work-hours per product to 39 as follows: inspecting for fit of the aerodynamic comply with the basic requirements of PART 39—AIRWORTHINESS seal to the fuselage; and related this proposed AD. The average labor DIRECTIVES investigative and corrective actions if rate is $80 per work-hour. Based on necessary. The related investigative these figures, we estimate the cost of the 1. The authority citation for part 39 actions include inspecting the proposed AD on U.S. operators to be continues to read as follows: aerodynamic seal for damage (including $1,680, or $240 per product. Authority: 49 U.S.C. 106(g), 40113, 44701. wear); inspecting the abrasion resistant coating for damage (including wear); Authority for This Rulemaking § 39.13 [Amended] and re-inspecting for fit. The corrective Title 49 of the United States Code 2. The FAA amends § 39.13 by actions include installing a new seal, specifies the FAA’s authority to issue removing Amendment 39–15394 (73 FR restoring the protective coating, rules on aviation safety. Subtitle I, 10650, February 28, 2008) and adding correcting the position of the fairing, section 106, describes the authority of the following new AD: and sealing the gaps between the the FAA Administrator. Subtitle VII: Fokker Services B.V.: Docket No. FAA– fairings and the surrounding structure. ‘‘Aviation Programs,’’ describes in more 2008–1119; Directorate Identifier 2008– You may obtain further information by detail the scope of the Agency’s NM–112–AD. authority. examining the MCAI in the AD docket. Comments Due Date We are issuing this rulemaking under Relevant Service Information the authority described in Subtitle VII, (a) We must receive comments by Fokker Services B.V. has issued Part A, Subpart III, Section 44701: December 1, 2008. Fokker Service Bulletin SBF100–53– ‘‘General requirements.’’ Under that Affected ADs 107, dated February 26, 2008. The section, Congress charges the FAA with (b) The proposed AD supersedes AD 2008– actions described in this service promoting safe flight of civil aircraft in 04–22, Amendment 39–15394.

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Applicability Restatement of Certain Requirements of AD (3) Reporting Requirements: For any (c) This AD applies to Fokker F.28 Mark 2008–04–22 reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, 0070 and 0100 airplanes, certificated in any (f) Unless already done: Within 12 months the Office of Management and Budget (OMB) category. after April 3, 2008 (the effective date of AD 2008–04–22), inspect the wing-to-fuselage has approved the information collection Subject fairings for indications of incorrect fit, requirements and has assigned OMB Control Number 2120–0056. (d) Air Transport Association (ATA) of damage, or wear, in accordance with the America Code 53: Fuselage. Accomplishment Instructions of Fokker Related Information Service Bulletin SBF100–53–101, dated (i) Refer to MCAI European Aviation Safety Reason September 30, 2005 (‘‘the service bulletin’’). Agency Airworthiness Directive 2008–0079, Doing the inspection required by paragraph (e) The mandatory continuing dated April 24, 2008; Fokker Service Bulletin (g) of this AD terminates the actions required airworthiness information (MCAI) states: SBF100–53–101, dated September 30, 2005; Several reports have been received about by this paragraph. and Fokker Service Bulletin SBF100–53–107, (1) If no indications of incorrect fit, roll control problems due to frozen moisture dated February 26, 2008; for related damage, or wear are found, no further action on the aileron pulleys that are located in the information. is required by this paragraph. LH [left-hand] and RH [right-hand] Main (2) If any incorrect fit, damage, or wear is Issued in Renton, Washington, on October Landing Gear (MLG) wheel bays on the found, before next flight, do related 10, 2008. centre wing rear spar, under the wing to investigative actions and applicable Ali Bahrami, fuselage fairings. Investigation revealed that corrective actions in accordance with the Manager, Transport Airplane Directorate, improper sealing of the aerodynamic seals of Accomplishment Instructions of the service Aircraft Certification Service. the Wing-to-Fuselage Fairings can cause rain- bulletin. or washwater and de-icing fluids to leak onto [FR Doc. E8–25890 Filed 10–29–08; 8:45 am] the affected aileron pulleys. Exposure of the New Requirements of This AD: Actions and BILLING CODE 4910–13–P aileron pulleys to the leaked moisture in Compliance freezing condition can result in restricted (g) Unless already done: Within 12 months aileron control movement (partly jammed) after the effective date of this AD, inspect for DEPARTMENT OF TRANSPORTATION and/or higher control forces. This condition, deviations of the aerodynamic seal of the if not corrected, could lead to partial loss of wing-to-fuselage fairings and the fuselage Federal Aviation Administration control of the aircraft. To address this unsafe skin, do all applicable related investigative condition, Fokker Services originally and corrective actions, and apply a fillet 14 CFR Part 71 introduced SBF100–53–101 which was made seam between the fairings and the fuselage skin, in accordance with the [Docket No. FAA–2008–0661; Airspace mandatory through CAA Netherlands (CAA– Docket No. 08–AAL–19] NL) AD NL–2005–013 [which corresponds to Accomplishment Instructions of Fokker FAA AD 2008–04–22] with a compliance Service Bulletin SBF100–53–107, dated RIN 2120–AA66 time of 12 months after November 1, 2005. February 26, 2008. Do all applicable related Following this, new reports of problems investigative and corrective actions before Proposed Establishment of Colored further flight. Accomplishment of this due to freezing moisture in the same area Federal Airway; Alaska inspection terminates the actions required by have been received. This has prompted paragraph (f) of this AD. Fokker Services to publish SBF100–53–107, AGENCY: Federal Aviation which introduces an additional one-time FAA AD Differences Administration (FAA), DOT. inspection [for deviations] of the ACTION: Notice of proposed rulemaking Note: This AD differs from the MCAI and/ aerodynamic seals of the Wing-to-Fuselage or service information as follows: No (NPRM). Fairings and the application of an improved differences. sealing of the aerodynamic seal by means of SUMMARY: This action proposes to a fillet seam between the upper left and right Other FAA AD Provisions establish Colored Federal Airway Blue 7 fairings and the fuselage skin. (h) The following provisions also apply to (B–7), in Alaska. This action would add For the reasons described above, this EASA this AD: to the Instrument Flight Rules (IFR) AD supersedes CAA–NL AD NL–2005–013 (1) Alternative Methods of Compliance airway and route structure in Alaska by and requires an additional one-time (AMOCs): The Manager, ANM–116, providing IFR connectivity between inspection [for deviations] and application of International Branch, Transport Airplane Bethel, AK and Cape Newenham, AK. improved sealing. Directorate, FAA, has the authority to The FAA is proposing this action to This action retains the inspection in AD approve AMOCs for this AD, if requested enhance safety and improve the 2008–04–22. Doing the additional inspection using the procedures found in 14 CFR 39.19. management of air traffic operations in Send information to ATTN: Tom Rodriguez, terminates the requirement to do the the State of Alaska. inspection required by the existing AD. The Aerospace Engineer, International Branch, additional inspection for deviations includes ANM–116, Transport Airplane Directorate, DATES: Comments must be received on inspecting for fit between the left-hand and FAA, 1601 Lind Avenue, SW., Renton, or before December 15, 2008. right-hand wing-to-fuselage fairings and the Washington 98057–3356; telephone (425) ADDRESSES: Send comments on this fuselage skin; inspecting for damage to the 227–1137; fax (425) 227–1149. Before using proposal to the U.S. Department of any approved AMOC on any airplane to aerodynamic seal on the fairings; inspecting which the AMOC applies, notify your Transportation, Docket Operations, M– for fit of the aerodynamic seal to the fuselage; appropriate principal inspector (PI) in the 30, 1200 New Jersey Avenue, SE., West and related investigative and corrective FAA Flight Standards District Office (FSDO), Building Ground Floor, Room W12–140, actions if necessary. The related investigative or lacking a PI, your local FSDO. Washington, DC 20590–0001; telephone: actions include inspecting the aerodynamic (2) Airworthy Product: For any requirement (202) 366–9826. You must identify FAA seal for damage (including wear); inspecting in this AD to obtain corrective actions from Docket No. FAA–2008–0661 and the abrasion resistant coating for damage a manufacturer or other source, use these Airspace Docket No. 08–AAL–19 at the (including wear); and re-inspecting for fit. actions if they are FAA-approved. Corrective beginning of your comments. You may The corrective actions include installing a actions are considered FAA-approved if they also submit comments through the new seal, restoring the protective coating, are approved by the State of Design Authority correcting the position of the fairing, and (or their delegated agent). You are required Internet at http://www.regulations.gov. sealing the gaps between the fairings and the to assure the product is airworthy before it FOR FURTHER INFORMATION CONTACT: Ken surrounding structure. is returned to service. McElroy, Airspace and Rules Group,

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Office of System Operations Airspace ADDRESSES section for address and describes in more detail the scope of the and AIM, Federal Aviation phone number) between 9 a.m. and 5 agency’s authority. Administration, 800 Independence p.m., Monday through Friday, except This rulemaking is promulgated Avenue, SW., Washington, DC 20591; Federal holidays. An informal docket under the authority described in telephone: (202) 267–8783. may also be examined during normal Subtitle VII, Part A, Subpart I, Section SUPPLEMENTARY INFORMATION: business hours at the office of the 40103. Under that section, the FAA is Regional Air Traffic Division, Federal Comments Invited charged with prescribing regulations to Aviation Administration, 222 West 7th assign the use of the airspace necessary Interested parties are invited to Avenue, Box 14, Anchorage, AK 99513– to ensure the safety of aircraft and the participate in this proposed rulemaking 7587. efficient use of airspace. This regulation by submitting such written data, views, Persons interested in being placed on is within the scope of that authority or arguments, as they may desire. a mailing list for future NPRMs should because it proposes to create a Federal Comments that provide the factual basis contact the FAA’s Office of Rulemaking, Airway within the State of Alaska and supporting the views and suggestions (202) 267–9677, for a copy of Advisory represents the FAA’s continuing effort presented are particularly helpful in Circular No. 11–2A, Notice of Proposed to safely and efficiently use the developing reasoned regulatory Rulemaking Distribution System, which navigable airspace. decisions on the proposal. Comments describes the application procedure. are specifically invited on the overall The Proposal Environmental Review regulatory, aeronautical, economic, environmental, and energy-related The FAA is proposing an amendment The FAA has determined that this aspects of the proposal. to Title 14, Code of Federal Regulations action qualifies for categorical exclusion Communications should identify both (14 CFR) part 71 to establish Colored under the National Environmental docket numbers (FAA Docket No. FAA– Federal Airway B–7 between Bethel and Policy Act in accordance with FAA 2008–0661 and Airspace Docket No. 08– Cape Newenham, AK. This action Order 1050.1E, ‘‘Environmental AAL–19) and be submitted in triplicate would add to the IFR airway and route Impacts: Policies and Procedures,’’ to the Docket Management Facility (see structure in Alaska by providing IFR paragraph 311a. This airspace action is ADDRESSES section for address and connectivity between Bethel, AK and not expected to cause any potentially phone number). You may also submit Cape Newenham, AK. The FAA is significant environmental impacts, and comments through the Internet at proposing this action to improve the no extraordinary circumstances exist http://www.regulations.gov. management of air traffic operations in that warrant preparation of an Commenters wishing the FAA to the State of Alaska and to enhance environmental assessment. acknowledge receipt of their comments safety. on this action must submit with those Colored Federal Airways are List of Subjects in 14 CFR Part 71 published in paragraph 6009 of FAA comments a self-addressed, stamped Airspace, Incorporation by reference, Order 7400.9R, signed August 15, 2007, postcard on which the following Navigation (air). statement is made: ‘‘Comments to FAA and effective September 15, 2007, which Docket No. FAA–2008–0661, Airspace is incorporated by reference in 14 CFR The Proposed Amendment Docket No. 08–AAL–19.’’ The postcard 71.1. The Colored Federal Airways will be date/time stamped and returned listed in this document will be In consideration of the foregoing, the to the commenter. published subsequently in the Order. Federal Aviation Administration All communications received on or The FAA has determined that this proposes to amend 14 CFR part 71 as before the specified closing date for proposed regulation only involves an follows: comments will be considered before established body of technical PART 71—DESIGNATION OF CLASS A, taking action on the proposed rule. The regulations for which frequent and B, C, D, AND E AIRSPACE AREAS; AIR proposal contained in this action may routine amendments are necessary to TRAFFIC SERVICE ROUTES; AND be changed in light of comments keep them operationally current. REPORTING POINTS received. All comments submitted will Therefore, this proposed regulation: (1) be available for examination in the Is not a ‘‘significant regulatory action’’ 1. The authority citation for part 71 public docket both before and after the under Executive Order 12866; (2) is not continues to read as follows: closing date for comments. A report a ‘‘significant rule’’ under Department of summarizing each substantive public Transportation (DOT) Regulatory Authority: 49 U.S.C. 106(g), 40103, 40113, contact with FAA personnel concerned Policies and Procedures (44 FR 11034; 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– with this rulemaking will be filed in the February 26, 1979); and (3) does not 1963 Comp., p. 389. docket. warrant preparation of a regulatory evaluation, as the anticipated impact is § 71.1 [Amended] Availability of NPRMs so minimal. Since this is a routine 2. The incorporation by reference in An electronic copy of this document matter that will only affect air traffic 14 CFR 71.1 of FAA Order 7400.9R, may be downloaded through the procedures and air navigation, it is Airspace Designations and Reporting Internet at http://www.regulations.gov. certified that this proposed rule, when Points, signed August 15, 2007 and Recently published rulemaking promulgated, will not have a significant effective September 15, 2007, is documents can also be accessed through economic impact on a substantial amended as follows: the FAA’s Web page at http:// number of small entities under the www.faa.gov/airports_airtraffic/ criteria of the Regulatory Flexibility Act. Paragraph 6009(d) Blue Federal Airways air_traffic/publications/ The FAA’s authority to issue rules * * * * * _ regarding aviation safety is found in airspace amendments/. B–7 [New] You may review the public docket Title 49 of the United States Code. containing the proposal, any comments Subtitle I, Section 106 describes the From Oscarville, AK, NDB; to the Cape received and any final disposition in authority of the FAA Administrator. Newenham, AK, NDB. person in the Dockets Office (see Subtitle VII, Aviation Programs, * * * * *

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Issued in Washington, DC, on October 22, 799 9th Street, NW., 5th Floor, to be more objective and transparent 2008. Washington, DC 20001–4501. and provide greater predictability in Edith V. Parish, Instructions: All submissions determining the country of origin of Manager, Airspace and Rules Group. received must include the agency name imported merchandise than the system [FR Doc. E8–25940 Filed 10–29–08; 8:45 am] and docket number for this rulemaking. of case-by-case adjudication they would BILLING CODE 4910–13–P All comments received will be posted replace. The proposed change also will without change to http:// aid an importer’s exercise of reasonable www.regulations.gov, including any care. In addition, the document DEPARTMENT OF HOMELAND personal information provided. For proposes to amend the country of origin SECURITY detailed instructions on submitting rules applicable to pipe fitting and comments and additional information flanges, printed greeting cards, glass U.S. Customs and Border Protection on the rulemaking process, see the optical fiber, and rice preparations. ‘‘Public Participation’’ heading of the Finally, the proposed rule would amend SUPPLEMENTARY INFORMATION section of DEPARTMENT OF THE TREASURY the textile regulations set forth in this document. § 102.21 to make corrections so that the 19 CFR Parts 4, 7, 10, 102, 134 and 177 Docket: For access to the docket to read background documents or regulations reflect the language of [USCBP–2007–0100] comments received, go to http:// section 334(b)(5) of the Uruguay Round www.regulations.gov. Submitted Agreements Act. RIN 1505–AB49 comments may be inspected during The notice of proposed rulemaking Uniform Rules of Origin for Imported regular business days between the hours invited the public to comment on the Merchandise of 9 a.m. and 4:30 p.m. at the Trade and proposal. Comments on the proposed Commercial Regulations Branch, rule were requested on or before AGENCIES: Customs and Border Regulations and Rulings, Office of September 23, 2008. In response to the Protection, Department of Homeland International Trade, U.S. Customs and proposed rule published in the Federal Security; Department of the Treasury. Border Protection, 799 9th Street, NW., Register, CBP received correspondence ACTION: Notice of proposed rulemaking; 5th Floor, Washington, DC 20001–4501. from several parties requesting an re-opening of comment period. Arrangements to inspect submitted extension of the comment period. In a comments should be made in advance notice published in the Federal Register SUMMARY: This document re-opens the by calling Mr. Joseph Clark at (202) 572– on September 8, 2008 (73 FR 51962), period within which comments may be 8768. submitted in response to the proposed CBP provided an additional 30 days for FOR FURTHER INFORMATION CONTACT: interested parties to submit comments rule to amend the Customs and Border Monika Brenner, Valuation and Special Protection (‘‘CBP’’) regulations to on the proposed rule until October 23, Programs, Office of International Trade, 2008. establish uniform rules governing CBP 202–572–8835; Heather K. Pinnock, determinations of the country of origin Tariff Classification and Marking, Office Re-Opening of Comment Period of imported merchandise. The proposed of International Trade, 202–572–8828. rule was published in the Federal As a result of modifications to the SUPPLEMENTARY INFORMATION: Register on July 25, 2008 (73 FR 43385) Harmonized Tariff Schedule of the with comments due on or before Public Participation United States (HTSUS) in 2007, certain September 23, 2008. The comment Interested persons are invited to tariff provisions have been added or period was extended by a notice participate in this rulemaking by removed, and certain goods have been published in the Federal Register on submitting written data, views, or transferred, for tariff classification September 8, 2008 (73 FR 51962), to arguments on all aspects of the purposes, to different or newly-created October 23, 2008. This notice re-opens proposed rule. CBP also invites provisions. CBP is publishing a the comment period to afford interested comments that relate to the economic, document in today’s Federal Register parties an opportunity to consider the environmental, or federalism effects that which sets forth technical corrections to impact, if any, of the proposed rule on might result from this proposed rule. §§ 102.20 and 102.21 of the CBP the country of origin of their goods in Comments that will provide the most regulations (19 CFR 102.20 and 102.21) view of the publication of a final rule assistance to CBP will reference a in order to align the regulations with the document in today’s Federal Register specific portion of the proposed rule, which sets forth technical corrections to current version of the HTSUS. The explain the reason for any §§ 102.20 and 102.21 of the CBP technical corrections to the tariff shift recommended change, and include data, regulations (19 CFR 102.20 and 102.21). rules set forth in that document will information, or authority that support enable parties to properly evaluate the DATES: Comments on the proposed rule such recommended change. See impact, if any, of the proposed rule on must be received on or before December ADDRESSES above for information on 1, 2008. the country of origin of their goods. how to submit comments. Accordingly, in order to afford parties ADDRESSES: You may submit comments, the opportunity to enhance their review identified by docket number, by one of Background of the proposed rule and provide the following methods: CBP published a notice of proposed meaningful comment in light of the • Federal eRulemaking Portal: http:// rulemaking in the Federal Register (73 www.regulations.gov. Follow the FR 43385) on July 25, 2008, proposing technical corrections to §§ 102.20 and instructions for submitting comments to amend the CBP regulations to 102.21, the decision has been made to via docket number USCBP–2007–0100. establish uniform rules of origin for re-open the comment period on the • Mail: Trade and Commercial imported merchandise. The proposed proposed rule. Comments are now due Regulations Branch, Regulations and rule would extend application of the on or before December 1, 2008. Rulings, Office of International Trade, country of origin rules codified in 19 U.S. Customs and Border Protection, CFR part 102. Those rules have proven

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Dated: October 23, 2008. B. E-mail: [email protected]. U.S. Environmental Protection Agency, Harold M. Singer, C. Mail: EPA–R03–OAR–2008–0746, Region III, 1650 Arch Street, Director, Regulations and Disclosure Law Carol Febbo, Chief, Energy, Radiation Philadelphia, Pennsylvania 19103. Division, Regulations and Rulings, Office of and Indoor Environment Branch, Copies of the State submittal are International Trade. Mailcode 3AP23, U.S. Environmental available at the West Virginia Timothy E. Skud, Protection Agency, Region III, 1650 Department of Environmental Deputy Assistant Secretary (Tax, Trade and Arch Street, Philadelphia, Pennsylvania Protection, Division of Air Quality, 601 Tariff Policy), Office of Tax Policy, United 19103. 57th Street, SE., Charleston, West States Treasury Department. D. Hand Delivery: At the previously- Virginia 25304. [FR Doc. E8–25731 Filed 10–29–08; 8:45 am] listed EPA Region III address. Such FOR FURTHER INFORMATION CONTACT: BILLING CODE 9111–14–P deliveries are only accepted during the Megan Goold, (215) 814–2027, or by e- Docket’s normal hours of operation, and mail at [email protected]. special arrangements should be made SUPPLEMENTARY INFORMATION: For ENVIRONMENTAL PROTECTION for deliveries of boxed information. further information, please see the Instructions: Direct your comments to AGENCY information provided in the direct final Docket ID No. EPA–R03–OAR–2008– rule, with the same title, that is located 0746. EPA’s policy is that all comments 40 CFR Part 52 in the ‘‘Rules and Regulations’’ section received will be included in the public of this Federal Register publication. [EPA–R03–OAR–2008–0746; FRL–8735–8] docket without change, and may be made available online at Dated: October 20, 2008. Approval and Promulgation of Air www.regulations.gov, including any Donald S. Welsh, Quality Implementation Plans; West personal information provided, unless Regional Administrator, Region III. Virginia; Revised Motor Vehicle the comment includes information [FR Doc. E8–25660 Filed 10–29–08; 8:45 am] Emission Budgets for the Parkersburg claimed to be Confidential Business BILLING CODE 6560–50–P 8-Hour Ozone Maintenance Area Information (CBI) or other information AGENCY: Environmental Protection whose disclosure is restricted by statute. Agency (EPA). Do not submit information that you DEPARTMENT OF HOMELAND consider to be CBI or otherwise ACTION: SECURITY Proposed rule. protected through www.regulations.gov SUMMARY: EPA proposes to approve the or e-mail. The www.regulations.gov Web Federal Emergency Management State Implementation Plan (SIP) site is an ‘‘anonymous access’’ system, Agency revision submitted by the State of West which means EPA will not know your Virginia for the purpose of amending identity or contact information unless 44 CFR Part 67 you provide it in the body of your the 8-hour ozone maintenance plan for [Docket No. FEMA–B–1014] the Parkersburg area. This revision comment. If you send an e-mail amends the maintenance plans’ 2009 comment directly to EPA without going Proposed Flood Elevation and 2018 motor vehicle emissions through www.regulations.gov, your e- Determinations budgets (MVEBs) by reallocating a mail address will be automatically captured and included as part of the AGENCY: Federal Emergency portion of the plans’ safety margins Management Agency, DHS. which results in an increase in the comment that is placed in the public ACTION: MVEBs. In the Final Rules section of docket and made available on the Proposed rule. Internet. If you submit an electronic this Federal Register, EPA is approving SUMMARY: Comments are requested on the State’s SIP submittal as a direct final comment, EPA recommends that you include your name and other contact the proposed Base (1 percent annual- rule without prior proposal because the chance) Flood Elevations (BFEs) and Agency views this as a noncontroversial information in the body of your comment and with any disk or CD–ROM proposed BFE modifications for the submittal and anticipates no adverse you submit. If EPA cannot read your communities listed in the table below. comments. A detailed rationale for the comment due to technical difficulties The purpose of this notice is to seek approval is set forth in the direct final and cannot contact you for clarification, general information and comment rule. If no adverse comments are EPA may not be able to consider your regarding the proposed regulatory flood received in response to this action, no comment. Electronic files should avoid elevations for the reach described by the further activity is contemplated. If EPA the use of special characters, any form downstream and upstream locations in receives adverse comments, the direct of encryption, and be free of any defects the table below. The BFEs and modified final rule will be withdrawn and all or viruses. BFEs are a part of the floodplain public comments received will be Docket: All documents in the management measures that the addressed in a subsequent final rule electronic docket are listed in the community is required either to adopt based on this proposed rule. EPA will www.regulations.gov index. Although or show evidence of having in effect in not institute a second comment period. listed in the index, some information is order to qualify or remain qualified for Any parties interested in commenting not publicly available, i.e., CBI or other participation in the National Flood on this action should do so at this time. information whose disclosure is Insurance Program (NFIP). In addition, DATES: Comments must be received in restricted by statute. Certain other these elevations, once finalized, will be writing by December 1, 2008. material, such as copyrighted material, used by insurance agents, and others to ADDRESSES: Submit your comments, is not placed on the Internet and will be calculate appropriate flood insurance identified by Docket ID Number EPA– publicly available only in hard copy premium rates for new buildings and R03–OAR–2008–0746 by one of the form. Publicly available docket the contents in those buildings. following methods: materials are available either DATES: Comments are to be submitted A. www.regulations.gov. Follow the electronically in www.regulations.gov or on or before January 28, 2009. on-line instructions for submitting in hard copy during normal business ADDRESSES: The corresponding comments. hours at the Air Protection Division, preliminary Flood Insurance Rate Map

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(FIRM) for the proposed BFEs for each management requirements. The Regulatory Flexibility Act. As flood community are available for inspection community may at any time enact elevation determinations are not within at the community’s map repository. The stricter requirements of its own, or the scope of the Regulatory Flexibility respective addresses are listed in the pursuant to policies established by other Act, 5 U.S.C. 601–612, a regulatory table below. Federal, State, or regional entities. flexibility analysis is not required. You may submit comments, identified These proposed elevations are used to Executive Order 12866, Regulatory by Docket No. FEMA–B–1014, to meet the floodplain management Planning and Review. This proposed William R. Blanton, Jr., Chief, requirements of the NFIP and are also rule is not a significant regulatory action Engineering Management Branch, used to calculate the appropriate flood under the criteria of section 3(f) of Mitigation Directorate, Federal insurance premium rates for new Executive Order 12866, as amended. Emergency Management Agency, 500 C buildings built after these elevations are Executive Order 13132, Federalism. Street, SW., Washington, DC 20472, made final, and for the contents in these This proposed rule involves no policies (202) 646–3151, or (e-mail) buildings. that have federalism implications under [email protected]. Comments on any aspect of the Flood Executive Order 13132. FOR FURTHER INFORMATION CONTACT: Insurance Study and FIRM, other than Executive Order 12988, Civil Justice William R. Blanton, Jr., Chief, the proposed BFEs, will be considered. Reform. This proposed rule meets the Engineering Management Branch, A letter acknowledging receipt of any applicable standards of Executive Order Mitigation Directorate, Federal comments will not be sent. 12988. Emergency Management Agency, 500 C List of Subjects in 44 CFR Part 67 Street, SW., Washington, DC 20472, Administrative Procedure Act (202) 646–3151 or (e-mail) Statement. This matter is not a Administrative practice and [email protected]. rulemaking governed by the procedure, Flood insurance, Reporting Administrative Procedure Act (APA), 5 SUPPLEMENTARY INFORMATION: The and recordkeeping requirements. U.S.C. 553. FEMA publishes flood Federal Emergency Management Agency Accordingly, 44 CFR part 67 is elevation determinations for notice and (FEMA) proposes to make proposed to be amended as follows: comment; however, they are governed determinations of BFEs and modified by the Flood Disaster Protection Act of PART 67—[AMENDED] BFEs for each community listed below, 1973, 42 U.S.C. 4105, and the National in accordance with section 110 of the 1. The authority citation for part 67 Flood Insurance Act of 1968, 42 U.S.C. Flood Disaster Protection Act of 1973, continues to read as follows: 42 U.S.C. 4104, and 44 CFR 67.4(a). 4001 et seq., and do not fall under the APA. Authority: 42 U.S.C. 4001 et seq.; These proposed BFEs and modified Reorganization Plan No. 3 of 1978, 3 CFR, BFEs, together with the floodplain National Environmental Policy Act. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, management criteria required by 44 CFR This proposed rule is categorically 3 CFR, 1979 Comp., p. 376. 60.3, are the minimum that are required. excluded from the requirements of 44 They should not be construed to mean CFR part 10, Environmental § 67.4 [Amended] that the community must change any Consideration. An environmental 2. The tables published under the existing ordinances that are more impact assessment has not been authority of § 67.4 are proposed to be stringent in their floodplain prepared. amended as follows:

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

Decatur County, Georgia, and Incorporated Areas

Flint River ...... Approximately 2.4 miles downstream of U.S. Route None +90 Unincorporated Areas of 27. Decatur County, City of Bainbridge. Approximately 2.9 miles upstream of Calhoun Street None +98 Flint River/Lake Seminole ..... At the confluence with Butlers Creek ...... None +81 Unincorporated Areas of Decatur County. At Georgia/Florida state line ...... None +81 Big Slough Tributary ...... Approximately 1,450 feet downstream of Thomasville None +105 Unincorporated Areas of Road. Decatur County, City of Bainbridge. Approximately 440 feet downstream of Lake Douglas None +107 Road.

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

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

Maps are available for inspection at City Hall, 107 Broad Street, Bainbridge, GA 39817. Unincorporated Areas of Decatur County Maps are available for inspection at Decatur County Planning Department, 309 Airport Road, Bainbridge, GA 39817.

Seminole County, Georgia, and Incorporated Areas

Chattahoochee River ...... At Lake Seminole ...... None +81 Unincorporated Areas of Seminole County. Approximately 1.6 miles upstream of State Highway None +97 91. Lake Seminole/Spring Creek Flooding area bound by Cypress Pond Road to the None +81 Unincorporated Areas of north, Georgia/Florida state line to the west and Seminole County. south, and the Seminole/Decatur county boundary to the east.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Seminole County Maps are available for inspection at County Courthouse, 200 S. Knox Avenue, Donalsonville, GA 39845.

Vigo County, Indiana, and Incorporated Areas

Sugar Creek ...... Approximately 2,000 feet downstream of Conrail ...... None +469 Town of West Terre Haute, Unincorporated Areas of Vigo County. Approximately 1,280 feet downstream of Conrail ...... None +470 Wabash River ...... Approximately 1,214 feet upstream of Interstate High- None +470 Town of West Terre way 70. Haute, Unincorporated Areas of Vigo County. At U.S. Highway 40 ...... None +472

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of West Terre Haute Maps are available for inspection at Town Hall, 500 National Avenue, West Terre Haute, IN 47885. Unincorporated Areas of Vigo County Maps are available for inspection at County Annex Building, 121 Oak Street, Terre Haute, IN 47807.

Branch County, Michigan, and Incorporated Areas

Cold Creek ...... Upstream side of Jonesville Road ...... None +963 Township of Girard. Approximately 150 feet upstream of Gorbell Road ...... None +964 Coldwater River ...... Upstream side of E Fenn Road ...... None +959 Township of Ovid. Approximately 350 feet upstream of E Fenn Road ..... None +960 County Drain 40 ...... Approximately 0.5 mile downstream of S Wood Road None +989 Township of Ovid. Downstream side of S Wood Road ...... None +990 County Drain 40 ...... Approximately 0.8 mile north of Dorrance Road and None +981 Township of Quincy. 0.5 mile west of N Fremont Road. Approximately 0.5 mile north of Dorrance Road and None +981 0.5 mile west of N Fremont Road. Craig Lake ...... Entire shoreline of Craig Lake ...... None +927 Township of Girard. Little Swan Creek ...... Downstream side of Lindley Road ...... None +872 Township of Matteson. Approximately 0.4 mile upstream of Butz Road ...... None +892

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

Approximately 1,100 feet downstream of W Colon Rd None +892 Approximately 350 feet upstream of Langwell Road ... None +907 Matteson Lake ...... Entire shoreline of Matteson Lake ...... None +892 Township of Matteson. Morrison Lake ...... Entire shoreline of Morrison Lake ...... None +927 Township of Girard. Sauk River ...... Upstream side of Fox Road ...... None +983 Township of Quincy. Approximately 50 feet upstream of Fox Road ...... None +983

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Township of Girard Maps are available for inspection at Township Hall, 1009 Marshall Road, Coldwater, MI 49036. Township of Matteson Maps are available for inspection at Township Hall, M–86 & Athens Road, Bronson, MI 49028. Township of Ovid Maps are available for inspection at Township Hall, 114 West Front Street, Ovid, MI 49036. Township of Quincy Maps are available for inspection at Quincy Public Library, 11 North Main Street, Quincy, MI 49082.

Dakota County, Minnesota, and Incorporated Areas

Cannon River ...... At downstream county boundary with Goodhue Coun- +801 +800 City of Northfield, City of ty. Randolph, Unincor- porated Areas of Dakota County. At upstream county boundary with Rice County ...... +895 +897 Chub Creek ...... Approximately 1,200 feet upstream of confluence with +862 +864 City of Randolph, Unincor- Cannon Creek. porated Areas of Dakota County. Approximately 500 feet upstream of Hamburg Avenue None +969 Chub Lake ...... Entire shoreline ...... None +969 Unincorporated Areas of Dakota County. Dutch Creek ...... At confluence with Chub Creek ...... None +957 Unincorporated Areas of Dakota County. Approximately 7,000 feet upstream of 305th Street None +981 West. Hazelwood Creek ...... At confluence with Dutch Creek ...... None +965 Unincorporated Areas of Dakota County. Approximately 4,875 feet upstream of 280th Street None +1103 West. Minnesota River ...... Approximately 2,300 feet upstream of confluence with None +714 City of Burnsville, City of Mississippi River. Eagan, City of Mendota Heights. At upstream county boundary with Scott County ...... +719 +717 Mississippi River...... Approximately 16,300 feet downstream of down- +689 +688 City of Hastings, City of stream county boundary with Goodhue County. Inver Grove Heights, City of Lilydale, City of Mendota, City of Mendota Heights, City of Rosemount, City of South St. Paul, Unincor- porated Areas of Dakota County. Approximately 10,200 feet upstream of Interstate None +714 Highway 35. Mud Creek ...... At confluence with Chub Creek ...... None +920 Unincorporated Areas of Dakota County. Approximately 1,670 feet upstream of 320th Street None +1005 West. North Branch Chub Creek .... At confluence with Chub Creek ...... None +896 Unincorporated Areas of Dakota County.

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

Approximately 4,150 feet upstream of intersection of None +983 Denmark Avenue/255th Street West. North Branch Vermillion Approximately 900 feet upstream of confluence with None +850 Unincorporated Areas of River. Vermillion River. Dakota County. Approximately 3,150 feet upstream of Station Trail ..... None +942 Pine Creek ...... At county boundary with Goodhue County ...... None +862 Unincorporated Areas of Dakota County. Approximately 6,200 feet upstream of Emery Avenue None +915 South Branch Vermillion Approximately 50 feet downstream of 200th Street None +848 Unincorporated Areas of River. East. Dakota County. Approximately 4,970 feet upstream of Denmark Ave- None +961 nue. Tributary No. 1 to Chub At confluence with Chub Creek ...... None +900 Unincorporated Areas of Creek. Dakota County. Approximately 2,570 feet upstream of Denmark Ave- None +943 nue. Tributary No. 1 to North At confluence with North Branch Chub Creek ...... None +897 Unincorporated Areas of Branch Chub Creek. Dakota County. At divergence from Tributary No. 1 to Chub Creek ..... None +921 Tributary No. 1 to North At confluence with North Branch Vermillion River ...... None +860 Unincorporated Areas of Branch Vermillion River. Dakota County. Approximately 3,300 feet upstream of confluence with None +885 North Branch Vermillion River. Tributary No. 1 to South At confluence with South Branch Vermillion River ...... None +865 Unincorporated Areas of Branch Vermillion River. Dakota County. Approximately 3,800 feet upstream of Darkhorse None +949 Lane. Tributary No. 1 to Vermillion At confluence with Vermillion River ...... +792 +793 City of Hastings, Unincor- River. porated Areas of Dakota County. Approximately 3,525 feet upstream of 225th Street None +985 East. Tributary No. 1A to Vermillion At confluence with Tributary No. 1 to Vermillion River None +805 Unincorporated Areas of River. Dakota County. Approximately 2,300 feet upstream of Kendel Avenue None +816 Tributary No. 1B to Vermillion At confluence with Tributary No. 1 to Vermillion River None +806 Unincorporated Areas of River. Dakota County. Approximately 2,760 feet upstream of Knox Path ...... None +812 Tributary No. 1C to At confluence with Tributary No. 1 to Vermillion River None +845 Unincorporated Areas of Vermillion River. Dakota County. Approximately 2,680 feet upstream of Inga Avenue .... None +869 Tributary No. 2 to Chub At confluence with Chub Creek ...... None +929 Unincorporated Areas of Creek. Dakota County. Approximately 1,250 feet upstream of 280th Street None +944 West. Tributary No. 2 to North At confluence with North Branch Vermillion River ...... None +870 Unincorporated Areas of Branch Vermillion River. Dakota County. Approximately 1,750 feet upstream of Blaine Avenue None +918 Tributary No. 2 to South At confluence with South Branch Vermillion River ...... None +873 Unincorporated Areas of Branch Vermillion River. Dakota County. Approximately 1,240 feet upstream of Blaine Avenue None +877 Tributary No. 2 to Trout At confluence with Trout Brook ...... None +869 Unincorporated Areas of Brook. Dakota County. Approximately 4,800 feet upstream of 260th Street None +968 East. Tributary No. 2 to Vermillion At confluence with Vermillion River ...... +826 +825 Unincorporated Areas of River. Dakota County. Approximately 1,420 feet upstream of Goodwin Ave- None +883 nue. Tributary No. 2A to North At confluence with Tributary No. 2 to North Branch None +894 Unincorporated Areas of Branch Vermillion River. Vermillion River. Dakota County. Approximately 3,220 feet upstream of confluence with None +923 Tributary No. 2 to North Branch Vermillion River. Tributary No. 3 to North At confluence with North Branch Vermillion River ...... None +884 Unincorporated Areas of Branch Vermillion River. Dakota County. Approximately 2,870 feet upstream of confluence with None +943 North Branch Vermillion River.

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

Tributary No. 3 to South At confluence with South Branch Vermillion River ...... None +882 City of Hampton, Unincor- Branch Vermillion River. porated Areas of Dakota County. Approximately 300 feet upstream of Northfield Boule- None +926 vard. Tributary No. 3 to Trout At confluence with Trout Brook ...... None +883 Unincorporated Areas of Brook. Dakota County. Approximately 2,740 feet upstream of 240th Street None +1025 East. Tributary No. 3 to Vermillion At confluence with Vermillion River ...... +829 +828 Unincorporated Areas of River. Dakota County. Approximately 9,720 feet upstream of 180th Street None +894 East. Tributary No. 4 to North At convergence with North Branch Vermillion River .... None +921 Unincorporated Areas of Branch Vermillion River. Dakota County. At divergence from North Branch Vermillion River ...... None +930 Tributary No. 4 to South At confluence with South Branch Vermillion River ...... None +888 Unincorporated Areas of Branch Vermillion River. Dakota County. Approximately 9,220 feet upstream of confluence with None +904 South Branch Vermillion River. Tributary No. 4 to Trout At confluence with Trout Brook ...... None +909 Unincorporated Areas of Brook. Dakota County. Approximately 1,900 feet upstream of 240th Street None +936 East. Tributary No. 4 to Vermillion At confluence with Vermillion River ...... +840 +838 Unincorporated Areas of River. Dakota County. Approximately 550 feet upstream of 210th Street East None +910 Tributary No. 4A to Vermillion At confluence with Tributary No. 4 to Vermillion River None +854 Unincorporated Areas of River. Dakota County. Approximately 5,100 feet upstream of confluence with None +908 Tributary No. 4 to Vermillion River. Tributary No. 5 to South At confluence with South Branch Vermillion River ...... None +899 Unincorporated Areas of Branch Vermillion River. Dakota County. Approximately 3,950 feet upstream of confluence with None +913 South Branch Vermillion River. Tributary No. 5 to Trout At confluence with Trout Brook ...... None +942 Unincorporated Areas of Brook. Dakota County. Approximately 2,700 feet upstream of 250th Street None +988 East. Tributary No. 5 to Vermillion At confluence with Vermillion River ...... +864 +863 Unincorporated Areas of River. Dakota County. Approximately 1,500 feet upstream of 170th Street None +934 West. Tributary No. 5A to Vermillion At confluence with Tributary No. 5 to Vermillion River None +883 Unincorporated Areas of River. Dakota County. Approximately 4,560 feet upstream of confluence with None +923 Tributary No. 5 to Vermillion River. Tributary No. 5B to Vermillion At confluence with Tributary No. 5 to Vermillion River None +899 Unincorporated Areas of River. Dakota County. Approximately 2,600 feet upstream of Biscayne Ave- None +940 nue. Tributary No. 5C to At confluence with Tributary No. 5 to Vermillion River None +899 Unincorporated Areas of Vermillion River. Dakota County. Approximately 3,500 feet upstream of 170th Street None +951 West. Tributary No. 6 to Vermillion At confluence with Vermillion River ...... +871 +870 Unincorporated Areas of River. Dakota County. Approximately 8,700 feet upstream of 210th Street None +890 West. Tributary No. 6A to Vermillion At confluence with Tributary No. 6 to Vermillion River None +877 City of Farmington, Unin- River. corporated Areas of Da- kota County. Approximately 4,700 feet upstream of 210th Street None +892 West. Tributary No. 6B to Vermillion At confluence with Tributary No. 6 to Vermillion River None +879 Unincorporated Areas of River. Dakota County. Approximately 6,170 feet upstream of confluence with None +887 Tributary No. 6 to Vermillion River.

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

Trout Brook ...... Approximately 9,450 feet downstream of 260th Street None +851 Unincorporated Areas of East. Dakota County. Approximately 3,600 feet upstream of 240th Street None +982 East. Vermillion River...... Approximately 620 feet downstream of Vermillion +783 +781 City of Farmington, City of Street/U.S. Highway 61. Hastings, City of Vermillion, Unincor- porated Areas of Dakota County. At county boundary with Scott County ...... +1009 +1010

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Burnsville Maps are available for inspection at City Hall, 100 Civic Center Parkway, Burnsville, MN 55337. City of Eagan Maps are available for inspection at City Hall, 3830 Pilot Knob Road, Eagan, MN 55122. City of Farmington Maps are available for inspection at City Hall, 430 Third Street, Farmington, MN 55024. City of Hampton Maps are available for inspection at City Hall, 5320 Lincoln Street, Hampton, MN 55031–0128. City of Hastings Maps are available for inspection at City Hall, 101 Fourth Street East, Hastings, MN 55033–1955. City of Inver Grove Heights Maps are available for inspection at City Hall, 8150 Barbara Avenue, Inver Grove Heights, MN 55077. City of Lilydale Maps are available for inspection at City Hall, 1011 Sibley Memorial Highway, Lilydale, MN 55118–5109. City of Mendota Maps are available for inspection at City Hall, 1313 Sibley Memorial Highway, Mendota, MN 55150–0688. City of Mendota Heights Maps are available for inspection at City Hall, 1011 Victoria Curve, Mendota Heights, MN 55118. City of Northfield Maps are available for inspection at City Hall, 801 Washington Street, Northfield, MN 55057. City of Randolph Maps are available for inspection at City Hall, 4365 292nd Street East, Randolph, MN 55065–0068. City of Rosemount Maps are available for inspection at City Hall, 2875 145th Street West, Rosemount, MN 55068–4997. City of South St. Paul Maps are available for inspection at City Hall, 125 Third Avenue North, South St. Paul, MN 55075. City of Vermillion Maps are available for inspection at City Hall, 105 Main Street East, Vermillion, MN 55085–0067. Unincorporated Areas of Dakota County Maps are available for inspection at County Administration Center, 1590 Highway 55, Hastings, MN 55033–2343.

Hinds County, Mississippi, and Incorporated Areas

Allen Creek Tributary ...... 500 Feet Upstream of Hampstead Road ...... None +318 City of Clinton 750 Feet Upstream of Woodstone Place...... None +337 Bakers Creek ...... At Mount Moriah Road ...... None +145 Unincorporated Areas of Hinds County. 250 Feet Upstream of Railroad...... None +205 Bakers Creek Tributary 1...... 9,200 Feet Upstream of Confluence with Bakers None +151 Unincorporated Areas of Creek. Hinds County. 12,000 Feet Upstream of Confluence with Bakers None +157 Creek.

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

Bakers Creek Tributary 2–1.. 1,050 Feet Upstream of Confluence with Bakers None +262 Unincorporated Areas of Creek Tributary 2. Hinds County. 5,200 Feet Upstream of Confluence with Bakers None +288 Creek Tributary 2. Big Black River...... 4,600 Feet Upstream of Confluence with None +118 Unincorporated Areas of Fourteenmile Creek. Hinds County. 1,600 Feet Upstream of Confluence with Bogue Falia None +154 Creek. Big Creek ...... 150 Feet Upstream of State HWY 18 ...... None +362 Unincorporated Areas of Hinds County. 1,150 Feet Upstream of State HWY 18 ...... None +364 Big Creek Tributary 1 ...... 300 Feet Upstream of Terry Road ...... None +268 Unincorporated Areas of Hinds County. 6,700 Feet Upstream of Gary Road ...... None +310 Bitter Creek ...... 200 Feet Downstream of Learned Oakley Road ...... None +178 Town of Learned, Unincor- porated Areas of Hinds County. 8,000 Feet Upstream of Learned Oakley Road ...... None +195 Bogue Chitto Creek ...... At County Boundary ...... None +193 Unincorporated Areas of Hinds County. 3,200 Feet Downstream of Natchez Trace Parkway ... None +246 400 Feet Upstream of U.S. HWY 49 ...... None +284 50 Feet Downstream of Hilda Road ...... None +320 Bogue Chitto Creek Tributary 4,500 Feet Upstream of Confluence with Bogue None +210 Unincorporated Areas of 10. Chitto Creek. Hinds County. 9,900 Feet Upstream of Confluence with Bogue None +215 Chitto Creek. Bogue Chitto Creek Tributary 3,600 Feet Upstream of Confluence with Bogue None +200 Unincorporated Areas of 11. Chitto Creek. Hinds County. 5,150 Feet Upstream of Confluence with Bogue None +213 Chitto Creek. Bogue Chitto Creek Tributary 3,400 Feet Downstream of Carsley Road ...... None +200 Unincorporated Areas of 12. Hinds County. 1,000 Feet Upstream of Carsely Road ...... None +223 Bogue Chitto Creek Tributary 2,800 Feet Upstream of Carsley Road ...... None +198 Unincorporated Areas of 13. Hinds County. 100 Feet Upstream of Carsley Road ...... None +213 Bogue Chitto Creek Tributary 500 Feet Downstream of Springdale Road ...... None +200 Unincorporated Areas of 14. Hinds County. 1,500 Feet Upstream of Springdale Road ...... None +211 Bogue Chitto Creek Tributary 1,525 Feet Downstream of Springdale Road ...... None +195 Unincorporated Areas of 15. Hinds County. 200 Feet Downstream of County Boundary ...... None +204 Bogue Chitto Creek Tributary 3,400 Feet Upstream of Confluence with Bogue None +261 Unincorporated Areas of 2. Chitto Creek. Hinds County. 300 Feet Downstream of Northside Drive ...... None +272 Bogue Chitto Creek Tributary 1,500 Feet Upstream of Confluence with Bogue None +268 Unincorporated Areas of 3. Chitto Creek. Hinds County. 3,700 Feet Upstream of Confluence with Bogue None +281 Chitto Creek. Bogue Chitto Creek Tributary 600 Feet Downstream of Confluence with Bogue None +275 Unincorporated Areas of 4. Chitto Creek. Hinds County. 3,250 Feet Upstream of Northside Drive ...... None +330 Bogue Chitto Creek Tributary 275 Feet Upstream of Northside Drive ...... None +283 Unincorporated Areas of 5. Hinds County. 100 Feet Upstream of Richardson Road ...... None +289 Bogue Chitto Creek Tributary 1,200 Feet Upstream of Confluence with Bogue None +293 Unincorporated Areas of 6. Chitto Creek. Hinds County. 4,850 Feet Upstream of Confluence with Bogue None +324 Chitto Creek. Bogue Chitto Creek Tributary 375 Feet Upstream of Confluence with Bogue Chitto None +302 Unincorporated Areas of 6–1. Creek Tributary 6. Hinds County. 1,350 Feet Upstream of Confluence with Bogue None +310 Chitto Creek Tributary 6. Bogue Chitto Creek Tributary 1,100 Feet Upstream of Confluence with Bogue None +244 Unincorporated Areas of 7. Chitto Creek. Hinds County. 300 Feet Upstream of U.S. HWY 49 ...... None +286 Bogue Chitto Creek Tributary 1,300 Feet Upstream of Confluence with Bogue None +236 Unincorporated Areas of 8. Chitto Creek. Hinds County.

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

7,300 Feet Upstream of County Line Road ...... None +290 Bogue Chitto Creek Tributary 1,450 Feet Upstream of Confluence with Bogue None +257 Unincorporated Areas of 8–1. Chitto Creek Tributary 8. Hinds County. 250 Feet Upstream of U.S. HWY 49 ...... None +275 Bogue Chitto Creek Tributary 5,500 Feet Upstream of Confluence with Bogue None +222 Unincorporated Areas of 9. Chitto Creek. Hinds County. 6,500 Feet Upstream of Railroad ...... None +305 Bogue Chitto Creek Tributary 1,700 Feet Downstream of U.S. HWY 49 ...... None +228 Unincorporated Areas of 9–1. Hinds County. 700 Feet Upstream of Golf Club Road ...... None +247 Bogue Chitto Creek Tributary 1,600 Feet Downstream of MacLean Road ...... None +247 Unincorporated Areas of 9–2. Hinds County. 2,400 Feet Upstream of MacLean Road ...... None +256 Bogue Chitto Creek Tributary 1,000 Feet Upstream of MacLean Road ...... None +258 Unincorporated Areas of 9–3. Hinds County. 4,850 Feet Upstream of Railroad ...... None +291 Bogue Chitto Creek Tributary 500 Feet Downstream of Billy Bell Road ...... None +273 Unincorporated Areas of 9–4. Hinds County. 5,700 Feet Upstream of Railroad ...... None +322 Chestnut Creek Tributary 1 .. 200 Feet Downstream of County Boundary ...... None +269 Unincorporated Areas of Hinds County. 3,150 Feet Upstream of County Boundary ...... None +288 Chestnut Creek Tributary 3 .. At County Boundary ...... None +291 Unincorporated Areas of Hinds County. 4,500 Feet Upstream of County Boundary ...... None +306 Fleetwood Creek ...... 400 Feet Downstream of I–20 ...... None +202 Unincorporated Areas of Hinds County. 2,400 Feet Upstream of Confluence with Fleetwood None +248 Creek Tributary 4. Fleetwood Creek Tributary 1 1,700 Feet Upstream of Confluence with Fleetwood None +221 Unincorporated Areas of Creek. Hinds County. 7,900 Feet Upstream of Confluence with Fleetwood None +240 Creek. Fleetwood Creek Tributary 2 2,250 Feet Upstream of Confluence with Fleetwood None +228 Unincorporated Areas of Creek. Hinds County. 350 Feet Upstream of Private Farm Road ...... None +250 Fleetwood Creek Tributary 3 1,250 Feet Upstream of Confluence with Fleetwood None +229 Unincorporated Areas of Creek. Hinds County. 7,900 Feet Upstream of Confluence with Fleetwood None +256 Creek. Fleetwood Creek Tributary 4 200 Feet Upstream of Confluence with Fleetwood None +242 Unincorporated Areas of Creek. Hinds County. 3,600 Feet Upstream of Confluence with Fleetwood None +254 Creek. Fourteenmile Creek ...... 9,450 Feet Downstream of Newman Road ...... None +119 Unincorporated Areas of Hinds County. 400 Feet Upstream of Old Port Gibson Road ...... None +226 Fourteenmile Creek Tributary 650 Feet Downstream of Smith Station Road ...... None +135 Unincorporated Areas of 1. Hinds County. 10,650 Feet Upstream of Smith Station Road ...... None +157 Fourteenmile Creek Tributary 1,800 Feet Downstream of U.S. HWY 18 ...... None +224 Unincorporated Areas of 2. Hinds County. 1,400 Feet Downstream of Dry Grove Road ...... None +252 French Creek Tributary 1 ...... 1,550 Feet Downstream of U.S. HWY 80 ...... None +301 City of Clinton. 1,700 Feet Upstream of U.S. HWY 80 ...... None +316 French Creek Tributary 2...... 1,100 Feet Upstream of Confluence with French None +302 City of Clinton. Creek Tributary 1. 50 Feet Upstream of Clinton Blvd ...... None +329 French Creek Tributary 3...... 1,450 Feet Upstream of Confluence with French None +300 City of Clinton, City of Creek. Jackson. 3,450 Feet Upstream of Confluence with French None +308 Creek. French Creek Tributary 4...... 1,600 Feet Upstream of Confluence with French None +309 City of Jackson. Creek. 1,700 Feet Upstream of Norman Road ...... None +339 French Creek Tributary 5 ...... 300 Feet Upstream of HWY 80 ...... None +326 City of Jackson. 1,000 Feet Upstream of HWY 80 ...... None +327

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

Hanging Moss Creek Tribu- 1,100 Feet Upstream of Confluence with Hanging None +328 City of Jackson, Unincor- tary 1. Moss Creek. porated Areas of Hinds County. 3,200 Feet Upstream of Confluence with Hanging None +338 Moss Creek. Hanging Moss Creek Tribu- 400 Feet Downstream of Graven Road ...... None +338 Unincorporated Areas of tary 2. Hinds County. 3,500 Feet Upstream of Graven Road ...... None +355 Hanging Moss Creek Tribu- 500 Feet Upstream of Confluence with Hanging Moss None +334 Unincorporated Areas of tary 3. Creek. Hinds County. 4,900 Feet Upstream of Confluence with Hanging None +355 Moss Creek. Hanging Moss Creek Tribu- 250 Feet Downstream of Beasley Road ...... None +314 City of Jackson. tary 5–1. 950 Feet Upstream of Westwind Road ...... None +344 Harris Creek ...... 6,700 Feet Upstream of Old HWY 51 ...... None +280 Unincorporated Areas of Hinds County. 6,500 Feet Upstream of Stubbs Road ...... None +333 Harris Creek Tributary 1 ...... 700 Feet Upstream of Confluence with Harris Creek .. None +301 Unincorporated Areas of Hinds County. 6,700 Feet Upstream of Green Gable Road ...... None +333 Jackson Creek ...... 5,500 Feet Upstream of Confluence with Bakers None +150 Unincorporated Areas of Creek. Hinds County. 2,200 Feet Upstream of U.S. HWY 467 ...... None +204 Limekiln Creek ...... 7,100 Feet Upstream of Confluence with Bakers None +204 Unincorporated Areas of Creek. Hinds County. At County Boundary ...... None +245 Limekiln Creek Tributary 1.... 4,100 Feet Upstream of Confluence with Limekiln None +211 Unincorporated Areas of Creek. Hinds County. 14,800 Feet Upstream of Confluence with Limekiln None +236 Creek. Limekiln Creek Tributary 1–1 2,000 Feet Downstream of Stigger Road ...... None +214 Unincorporated Areas of Hinds County. 6,800 Feet Upstream of Stigger Road ...... None +233 Limekiln Creek Tributary 2 .... 400 Feet Downstream of U.S. HWY 49 ...... None +219 Unincorporated Areas of Hinds County. 2,900 Feet Upstream of Confluence with Limekiln None +242 Creek Tributary 2–1. Limekiln Creek Tributary 2–1 100 Feet Downstream of Railroad ...... None +234 Unincorporated Areas of Hinds County. 400 Feet Upstream of Lanewood Road ...... None +258 Limekiln Creek Tributary 3.... 4,000 Feet Upstream of Confluence with Limekiln None +226 Unincorporated Areas of Creek. Hinds County. 300 Feet Downstream of County Boundary ...... None +236 Lindsey Creek ...... 600 Feet Downstream of Norrell Road ...... None +244 City of Clinton, Unincor- porated Areas of Hinds County. 700 Feet Upstream of Natchez Trace Parkway ...... None +270 550 Feet Downstream of Neal Street ...... None +312 200 Feet Upstream of Oak Hill Circle ...... None +330 Lindsey Creek Tributary 1 .... 4,350 Feet Upstream of Confluence with Lindsey None +245 Unincorporated Areas of Creek. Hinds County. 5,900 Feet Upstream of Confluence with Lindsey None +258 Creek. Lindsey Creek Tributary 3 .... 2,000 Feet Upstream of Confluence with Lindsey None +277 Unincorporated Areas of Creek. Hinds County. 150 Feet Upstream of I–20 ...... None +295 Little Bakers Creek ...... 1,100 Feet Downstream of Private Farm Road ...... None +213 Town of Bolton, Unincor- porated Areas of Hinds County. 200 Feet Upstream of Railroad ...... None +281 Little Bakers Creek Tributary 1,800 Feet Upstream of Confluence with Little Bakers None +220 Unincorporated Areas of 1. Creek. Hinds County. 2,600 Feet Upstream of I–20 ...... None +239 Little Bakers Creek Tributary 700 Feet Upstream of Confluence with Little Bakers None +230 Unincorporated Areas of 2. Creek. Hinds County. 5,400 Feet Upstream of Confluence with Little Bakers None +262 Creek.

VerDate Aug<31>2005 16:41 Oct 29, 2008 Jkt 217001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\30OCP1.SGM 30OCP1 pwalker on PROD1PC71 with PROPOSALS 64586 Federal Register / Vol. 73, No. 211 / Thursday, October 30, 2008 / Proposed Rules

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

Little Bakers Creek Tributary 400 Feet Upstream of Williamson Road ...... None +254 Unincorporated Areas of 3. Hinds County. 900 Feet Upstream of I–20 ...... None +268 Little Bakers Creek Tributary 500 Feet Upstream of Williamson Road ...... None +254 Unincorporated Areas of 3–1. Hinds County, City of Clinton. 4,250 Feet Upstream of Williamson Road ...... None +280 Little Bakers Creek Tributary 1,500 Feet Upstream of Confluence with Little Bakers None +254 Unincorporated Areas of 4. Creek. Hinds County. 5,900 Feet Upstream of Confluence with Little Bakers None +270 Creek. Little Bakers Creek Tributary 950 Feet Upstream of Confluence with Little Bakers None +268 City of Clinton. 5. Creek. 2,700 Feet Upstream of Confluence with Little Bakers None +280 Creek. Little Bakers Creek Tributary 500 Feet Upstream of Confluence with Little Bakers None +271 City of Clinton. 6. Creek. 1,500 Feet Upstream of Railroad ...... None +291 Little Creek ...... 400 Feet Downstream of Flowers Road ...... None +310 Unincorporated Areas of Hinds County. 100 Feet Upstream of Flowers Road ...... None +310 Lynch Creek ...... 150 Feet Downstream of Bonita Drive ...... *362 +355 City of Jackson. 300 Feet Downstream of Flag Chapel Road ...... *366 +363 1,350 Feet Upstream of Flag Chapel Road ...... None +377 Lynch Creek Tributary 5–1 ... 1,050 Feet Upstream of Confluence with Lynch Creek None +335 City of Jackson. 4,150 Feet Upstream of Confluence with Lynch Creek None +352 McDonald Creek ...... 600 Feet Downstream of HWY 18 ...... None +212 Unincorporated Areas of Hinds County. 200 Feet Upstream of Dry Grove Road ...... None +247 Patrol Creek ...... 1,000 Feet Upstream of Confluence with Lindsey None +268 City of Clinton. Creek. 2,900 Feet Upstream of Confluence with Lindsey None +268 Creek. Pearl River Tributary 1 ...... 500 Feet Downstream of Railroad ...... None +260 Unincorporated Areas of Hinds County. 2,300 Feet Upstream of Railroad ...... None +299 Pearl River Tributary 2 ...... 1,000 Feet Downstream of Railroad ...... None +265 Unincorporated Areas of Hinds County. 2,600 Feet Upstream of I–55 ...... None +330 Rhodes Creek ...... 15,000 Feet Upstream of North Siwell Road ...... None +391 Unincorporated Areas of Hinds County. 16,000 Feet Upstream of North Siwell Road ...... None +396 Rhodes Creek Tributary 1 .... 3,150 Feet Upstream of Confluence with Rhodes None +258 Unincorporated Areas of Creek. Hinds County. 2,000 Feet Upstream of Confluence with Rhodes None +271 Creek. Rhodes Creek Tributary 4 .... 2,800 Feet Upstream of Confluence with Rhodes None +275 Unincorporated Areas of Creek. Hinds County. 1,150 Feet Upstream of Dac Road ...... None +338 Rhodes Creek Tributary 5 .... 2,300 Feet Upstream of Confluence with Rhodes None +293 Unincorporated Areas of Creek. Hinds County. 3,900 Feet Upstream of Confluence with Rhodes None +299 Creek. Rhodes Creek Tributary 6 .... 2,100 Feet Upstream of Confluence with Rhodes None +295 Unincorporated Areas of Creek. Hinds County. Robertson Creek...... 2,800 Feet Upstream of Confluence with Rhodes None +299 Unincorporated Areas of Creek. Hinds County. 1,900 Feet Upstream of Flowers Road ...... None +306 Smith Creek Tributary 4 ...... 200 Feet Upstream of Wells Road ...... None +263 Unincorporated Areas of Hinds County. 5,500 Feet Upstream of Wells Road ...... None +312 Snake Creek ...... 4,000 Feet Upstream of U.S. HWY 18 ...... None +283 Unincorporated Areas of Hinds County. 5,600 Feet Upstream of Confluence with Snake None +313 Creek Tributary 1. Snake Creek Tributary 1 ...... 450 Feet Downstream of Midway Road ...... None +306 Unincorporated Areas of Hinds County. 1,050 Feet Upstream of Midway Road ...... None +317

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

Straight Fence Creek...... 10,500 Feet Upstream of Confluence with Bogue None +203 Unincorporated Areas of Chitto Creek. Hinds County. 750 Feet Downstream of Williamson Road ...... None +241 Straight Fence Creek Tribu- 750 Feet Downstream of McGuffee Road ...... None +217 Unincorporated Areas of tary 1. Hinds County. 200 Feet Downstream of Clinton-Tinnin Road ...... None +240 Straight Fence Creek Tribu- 700 Feet Downstream of McGuffee Road ...... None +217 Unincorporated Areas of tary 1–1. Hinds County. 600 Feet Upstream of McGuffee Road ...... None +226 Straight Fence Creek Tribu- 800 Feet Downstream of McGuffee Road ...... None +217 Unincorporated Areas of tary 2. Hinds County. 2,000 Feet Upstream of Confluence with Straight None +238 Fence Creek Tributary 2–1. Straight Fence Creek Tribu- 1,350 Feet Upstream of Confluence with Straight None +235 Unincorporated Areas of tary 2–1. Fence Creek Tributary 2. Hinds County. 3,400 Feet Upstream of Confluence with Straight None +242 Fence Creek Tributary 2. Straight Fence Creek Tribu- 3,800 Feet Upstream of Confluence with Straight None +218 Unincorporated Areas of tary 3. Fence Creek. Hinds County. 100 Feet Downstream of Jimmy Williams Road ...... None +254 Straight Fence Creek Tribu- 300 Feet Upstream of Confluence with Straight Fence None +245 Unincorporated Areas of tary 3–1. Creek Tributary 3. Hinds County. 2,800 Feet Upstream of McGuffee Road ...... None +263 Straight Fence Creek Tribu- 1,000 Feet Upstream of Confluence with Straight None +222 Unincorporated Areas of tary 4. Fence Creek. Hinds County. 1,500 Feet Upstream of Noah Johnson Road ...... None +247 Straight Fence Creek Tribu- 900 Feet Upstream of Confluence with Straight Fence None +246 Unincorporated Areas of tary 5–1. Creek Tributary 5. Hinds County. 3,050 Feet Upstream of Confluence with Straight None +259 Fence Creek Tributary 5. Straight Fence Creek Tribu- 200 Feet Downstream of Williamson Road ...... None +252 Unincorporated Areas of tary 6. Hinds County. 4,300 Feet Upstream of Confluence with Straight None +259 Fence Creek Tributary 6–2. Straight Fence Creek Tribu- 1,600 Feet Upstream of Confluence with Straight None +245 Unincorporated Areas of tary 6–1. Fence Creek Tributary 6. Hinds County. 5,350 Feet Upstream of Confluence with Straight None +257 Fence Creek Tributary 6. Straight Fence Creek Tribu- 400 Feet Upstream of Confluence with Straight Fence None +258 Unincorporated Areas of tary 6–2. Creek Tributary 6. Hinds County. 1,300 Feet Upstream of Confluence with Straight None +265 Fence Creek Tributary 6. Straight Fence Creek Tribu- 1,900 Feet Downstream of Pinehaven Place ...... None +264 City of Clinton, Unincor- tary 7. porated Areas of Hinds County. 100 Feet Downstream of Pinehaven Road ...... None +285 Stream B ...... 400 Feet Upstream of Joe Cocker Road ...... None +236 Unincorporated Areas of Hinds County. 500 Feet Downstream of County Boundary ...... None +263 Stream B Tributary 1 ...... 1,400 Feet Upstream of Confluence with Stream B .... None +250 Unincorporated Areas of Hinds County. 2,800 Feet Upstream of Confluence with Stream B .... None +260 Stream B Tributary 2 ...... 200 Feet Downstream of Clincy Road ...... None +248 Unincorporated Areas of Hinds County. At County Boundary ...... None +258 Straight Fence Creek Tribu- 2,800 Feet Upstream of Confluence with Straight None +236 Unincorporated Areas of tary 5. Fence Creek. Hinds County. 6,800 Feet Upstream of Confluence with Straight None +274 Fence Creek. Terrell Creek ...... 600 Feet Downstream of Fairchilds Road ...... None +169 Unincorporated Areas of Hinds County. 2,000 Feet Upstream of Unnamed Field Road ...... None +194 Town Creek ...... 1,300 Feet Upstream of I–220 ...... None +350 City of Jackson. 4,400 Feet Upstream of Forest Road ...... None +369 Town Creek Tributary 2 ...... 100 Feet Upstream of Michael Avalon Street ...... None +328 City of Jackson. 700 Feet Upstream of Michael Avalon Street ...... None +328 Trahon Creek Tributary 3 ..... 250 Feet Upstream of Lake Catherine Dam ...... None +325 City of Jackson. Turkey Creek ...... 2,000 Feet Downstream of Mt Moriah Road ...... None +167 Unincorporated Areas of Hinds County.

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

4,200 Feet Upstream of U.S. HWY 467 ...... None +244 Turkey Creek Tributary 1...... 2,000 Feet Upstream of Confluence with Turkey None +206 Unincorporated Areas of Creek. Hinds County. 4,200 Feet Upstream of U.S. HWY 467 ...... None +235 Turkey Creek Tributary 2...... 5,000 Feet Upstream of Confluence with Turkey None +227 Unincorporated Areas of Creek. Hinds County, Town of Terry. 4,200 Feet Upstream of Natchez Trace Parkway ...... None +245 Twelvemile Creek...... 8,000 Feet Upstream of Confluence with None +155 Unincorporated Areas of Fourteenmile Creek. Hinds County. 3,400 Feet Upstream of Confluence with None +178 Fourteenmile Creek. Vaughn Creek ...... 6,500 Feet Downstream of Volley Campbell Road ...... None +286 Town of Terry, Unincor- porated Areas of Hinds County. 2,800 Feet Upstream of Volley Campbell Road ...... None +308 Vaughn Creek Tributary 1 .... 4,200 Feet Upstream of Confluence with Vaughn None +272 Unincorporated Areas of Creek. Hinds County. 300 Feet Upstream of Jack Johnson Road ...... None +291 Vaughn Creek Tributary 1–1 2,700 Feet Upstream of Confluence with Vaughn None +281 Unincorporated Areas of Creek Tributary 1. Hinds County. 3,500 Feet Upstream of Confluence with Vaughn None +285 Creek Tributary 1. Vaughn Creek Tributary 3 .... 1,600 Feet Upstream of Confluence with Vaughn None +292 Unincorporated Areas of Creek. Hinds County. 2,000 Feet Upstream of Confluence with Vaughn None +301 Creek Tributary 3. 650 Feet Upstream of Jack Johnson Road ...... None +314 5,500 Feet Upstream of Confluence with Vaughn None +320 Creek Tributary 3. Vaughn Creek Tributary 3–2 1,000 Feet Upstream of Confluence with Vaughn None +308 Unincorporated Areas of Creek Tributary 3. Hinds County. 150 Feet Upstream of Cassidy Road ...... None +317

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Clinton Maps are available for inspection at Clinton City Hall, 300 Jefferson Street, Clinton, MS 39056. City of Jackson Maps are available for inspection at Department of Public Works, 200 South President Street, Jackson, MS 39205. Town of Bolton Maps are available for inspection at Bolton Town Hall, 202 Bolton-Raymond Road, Bolton, MS 39041. Town of Learned Maps are available for inspection at 521 Cherry Street, Learned, MS 39154. Town of Terry Maps are available for inspection at Terry Town Hall, 315 Cunningham Avenue, Terry, MS 39170. Unincorporated Areas of Hinds County Maps are available for inspection at Hinds County Permit and Zoning Office, 127 West Main Street, Raymond, MS 39154.

Dutchess County, New York, and Incorporated Areas

East Branch Wappinger Approximately 665 feet upstream of New York State None +282 Town of Washington. Creek Reach 1. Route 82. Approximately 1,529 feet upstream of New York State None +283 Route 82. Fishkill Creek ...... Approximately 300 feet upstream of confluence with +8 +7 Town of Beekman, City of Hudson River. Beacon, Town of East Fishkill, Town of Fishkill, Town of Union Vale, Vil- lage of Fishkill.

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

Just downstream of Clubhouse Lane ...... +487 +488 Maritje Kill ...... Approximately 30 feet upstream of Railroad ...... +8 +10 Town of Hyde Park. Approximately 4,230 feet upstream of Crum Elbow None +252 Road. Rhinebeck Kill ...... Approximately 1.07 miles upstream of State Route 9G None +165 Town of Red Hook. Approximately 1.08 miles upstream of State Route 9G None +165 Saw Kill ...... At Linden Avenue ...... None +183 Village of Red Hook. Approximately 937 feet upstream of Linden Avenue ... None +183 Sprout Creek #2 ...... Approximately 80 feet downstream of County Route None +565 Town of Washington. 90. Just upstream of County Route 90 ...... None +566 Stony Creek ...... Approximately 0.55 mile downstream of Mill Street ..... None +75 Town of Red Hook. Approximately 0.59 mile downstream of Mill Street ..... None +75 Swamp River Reach 1 ...... At confluence with Tenmile River ...... +364 +362 Town of Dover. Approximately 600 feet above confluence with +366 +365 Tenmile River. Swamp River Reach 2 ...... Approximately 0.52 mile upstream of Kitchen Road .... None +424 Town of Dover. Approximately 0.59 mile upstream of Kitchen Road .... None +424 Sylan Lake Outlet ...... At confluence with Fishkill Creek ...... +294 +293 Town of East Fishkill. Approximately 950 feet upstream of confluence with +294 +293 Fishkill Creek. Tenmile River ...... At county boundary ...... +287 +292 Town of Dover, Town of Amenia. Approximately 2,824 feet upstream of Railroad ...... None +388 Wells Brook ...... At confluence with Tenmile River ...... +375 +373 Town of Dover. Approximately 800 feet upstream of confluence with +375 +374 Tenmile River. Whaley Lake Stream ...... At confluence with Fishkill Creek ...... +350 +351 Town of Beekman. Approximately 500 feet upstream of confluence with +350 +351 Fishkill Creek. Whortlekill Creek Reach 1 .... At confluence with Fishkill Creek ...... +233 +234 Town of East Fishkill. Approximately 1,800 feet upstream of confluence with +233 +234 Fishkill Creek.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Beacon Maps are available for inspection at Beacon City Hall, 1 Municipal Center, Beacon, NY. Town of Amenia Maps are available for inspection at Amenia Town Hall, 36B Mechanic Street, Amenia, NY. Town of Beekman Maps are available for inspection at Beekman Town Hall, 4 Main Street, Poughquag, NY. Town of Dover Maps are available for inspection at Dover Town Hall, 126 East Duncan Hill Road, Dover Plains, NY. Town of East Fishkill Maps are available for inspection at East Fishkill Town Hall, 330 Route 376, Hopewell Junction, NY. Town of Fishkill Maps are available for inspection at Fishkill Town Hall, 807 Route 52, Fishkill, NY. Town of Hyde Park Maps are available for inspection at Hyde Park Town Hall, 4383 Albany Post Road, Hyde Park, NY. Town of Red Hook Maps are available for inspection at Red Hook Town Hall, 7340 South Broadway, Red Hook, NY. Town of Union Vale Maps are available for inspection at Union Vale Town Hall, 249 Duncan Road, LaGrangeville, NY. Town of Washington Maps are available for inspection at Washington Town Hall, 10 Reservoir Drive, Washington, NY. Village of Fishkill

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

Maps are available for inspection at Fishkill Village Hall, 1095 Main Street, Fishkill, NY. Village of Red Hook Maps are available for inspection at Red Hook Village Hall, 7467 South Broadway, Red Hook, NY.

Hanson County, South Dakota, and Incorporated Areas

James River ...... 1,050 feet upstream from 262nd St ...... None +1215 Unincorporated Areas of Hanson County. 540 feet upstream from Interstate 90 ...... None +1223

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Hanson County Maps are available for inspection at P.O. Box 500, Alexandria, SD 57311.

Roane County, Tennessee, and Incorporated Areas

Caney Creek ...... 143 feet downstream of confluence Postoak Creek .... None +746 Unincorporated Areas of Roane County. 2,087 feet upstream of confluence with Tennessee +745 +746 River. Clinch River ...... 2,372 feet upstream of confluence with Tennessee +746 +747 City of Oak Ridge, City of River. Harriman, Unincor- porated Areas of Roane County. 964 feet downstream of confluence with Young Creek +746 +747 Clinch River ...... 144 feet downstream of confluence with Caney Creek +748 +748 Unincorporated Areas of East. Roane County. 6.3 miles upstream up SH 95 ...... None +796 Emory River ...... 1,463 feet upstream of confluence with Clinch River .. +746 +747 City of Kingston, Unincor- porated Areas of Roane County. 600 feet upstream of confluence with Swan Pond +748 +748 Creek. Smith Creek ...... 3,150 feet upstream of confluence with Tennessee +746 +747 Unincorporated Areas of River. Roane County, City of Kingston. 411 feet downstream of Paint Rock Ferry Road ...... +746 +747 Tennessee River...... 5,880 feet downstream of confluence with Caney +745 +746 Unincorporated Areas of Creek. Roane County, City of Kingston. 1,140 Feet upstream of confluence with Hines Creek None +750 Whites Creek ...... 2.6 miles downstream of confluence with Black Creek None +746 Unincorporated Areas of Roane County. 1,900 feet upstream of confluence with Black Creek .. None +791

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Harriman Maps are available for inspection at 300 North Roane Street, Harriman, TN. City of Kingston Maps are available for inspection at 125 West Cumberland, Kingston, TN. City of Oak Ridge

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

Maps are available for inspection at 200 S Tulane Avenue, Oak Ridge, TN. Unincorporated Areas of Roane County Maps are available for inspection at 200 East Race Street, Kingston, TN.

Potter County, Texas, and Incorporated Areas

Dry Creek ...... Approximately 500 feet upstream from the intersec- None +3400 Unincorporated Areas of tion with Cliffside Road. Potter County, City of Amarillo. Approximately 500 feet upstream from the intersec- None +3428 tion with W 335 North Loop. Dry Creek Overflow ...... Approximately 500 feet downstream from confluence None +3416 Unincorporated Areas of with Dry Creek. Potter County, City of Amarillo. Approximately 120 feet north of W 335 North Loop None +3437 intersection. Playa 21 (T-Anchor Lake) ..... Approximately 570 feet east of Willow Street and SE +3612 +3616 City of Amarillo. 15th Avenue. Playa Lake 22 ...... Approximately 3,500 feet north of SE 3rd Avenue and +3588 +3593 City of Amarillo. S Whitaker Road intersection. Playa Lake 24 (Martin Lake) Approximately 650 feet north of Dale St. and Martin +3628 +3631 City of Amarillo. Rd. intersection. Playa Lake 26 ...... Approximately 4,600 feet southwest of I–40 and Juett +3570 +3573 City of Amarillo, Unincor- Attebury Road Intersection. porated Areas of Potter County. Playa Lake 27 ...... Approximately 2,000 feet east of NE 18th Avenue and +3545 +3548 City of Amarillo. Hacienda Drive intersection. Playa Lake 28 (Airport Lake) Approximately 1,350 feet NW of Amarillo Int. Airport +3585 +3590 City of Amarillo. runway. Playa Lake 34 ...... Approximately 4,600 feet southwest of Highway 287 None +3553 City of Amarillo, Unincor- and S. Parsley Road intersection. porated Areas of Potter County. Playa Lake 61 ...... Approximately 1,100 feet northeast from intersection None +3596 City of Amarillo, Unincor- of Parsley Road and railroad. porated Areas of Potter County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Amarillo Maps are available for inspection at 509 SE Seventh, Amarillo, TX 79101. Unincorporated Areas of Potter County Maps are available for inspection at 500 S. Fillmore, Amarillo, TX 79101.

Randall County, Texas, and Incorporated Areas

Playa 20 (Gooch Lake) ...... Approximately 5,000 feet south of SE 34th Ave. and +3574 +3579 City of Amarillo. S. Manhattan St. intersection. Playa Lake 11 ...... Approximately 500 feet south of the intersection of None +3646 City of Amarillo, Unincor- Bell St. and Attebury Dr. porated Areas of Ran- dall County. Playa Lake 13 ...... Approximately 2,500 feet southeast of the intersection None +3626 City of Amarillo, Unincor- of West 335 South LP and Valleyview Drive. porated Areas of Ran- dall County. Playa Lake 14 (Diamond Approximately 100 feet south of Winners Circle ...... +3657 +3658 City of Amarillo. Horseshoe Lake). Playa Lake 16 ...... Approximately 350 feet south of S. Hayden and SW +3626 +3633 City of Amarillo. 48th Ave. intersection. Playa Lake 19 ...... Approximately 1,200 feet east of SW 42nd Ave. and +3633 +3638 City of Amarillo. S. Harrison St. intersection.

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

Playa Lake 4 ...... W CR 58 and Helium Road intersection ...... None +3699 City of Amarillo, Unincor- porated Areas of Ran- dall County. Playa Lake 5 (McDonald Approximately 1,100 feet southeast of S. Coulter St. +3688 +3687 City of Amarillo. Lake). and SW 45th St. intersection. Playa Lake 7 ...... Approximately 100 feet north of W. 77th Ave. and None +3675 City of Amarillo, Unincor- Cody Dr. porated Areas of Ran- dall County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Amarillo Maps are available for inspection at 509 E. 7th Ave, Amarillo, TX 79105. Unincorporated Areas of Randall County Maps are available for inspection at 301 Hwy 60, Canyon, TX 79015.

Barron County, Wisconsin, and Incorporated Areas

Bear Creek ...... 191 feet downstream of Main Street (Haugen) ...... None +1198 Village of Haugen, Unin- corporated Areas of Bar- ron County. Just downstream of Bear Lake Dam ...... None +1207 Beaver Dam Lake ...... Entire Shoreline ...... None +1233 City of Cumberland. Big Moon Lake ...... Entire Shoreline ...... None +1171 Unincorporated Areas of Barron County. Buck Lake ...... Entire Shoreline ...... None +1233 City of Cumberland, Unin- corporated Areas of Bar- ron County. Devils Lake ...... Entire Shoreline ...... None +1262 Unincorporated Areas of Barron County. Duck Lake ...... Entire Shoreline ...... None +1236 City of Cumberland, Unin- corporated Areas of Bar- ron County. Frankenburg Slough ...... Entire Shoreline ...... None +1040 Village of Cameron. Granite Lake ...... Entire Shoreline ...... None +1238 Unincorporated Areas of Barron County. Lake Montanis ...... Entire Shoreline ...... None +1119 City of Rice Lake, Unincor- porated Areas of Barron County. Little Sand Lake ...... Entire Shoreline ...... None +1250 Unincorporated Areas of Barron County. Lower Turtle Lake ...... Entire Shoreline ...... None +1165 Unincorporated Areas of Barron County. Lower/Upper Vermillion Lake Entire Shoreline ...... None +1184 Unincorporated Areas of Barron County. Peterson Lake ...... Entire Shoreline ...... None +1189 Unincorporated Areas of Barron County. Poskin Lake ...... Entire Shoreline ...... None +1157 Unincorporated Areas of Barron County. Red Cedar River ...... 6,000 feet downstream of State Hwy 48 ...... +1125 +1126 Unincorporated Areas of Barron County. Outlet of Red Cedar Lake ...... None +1177 Red Cedar River Tributary 16 Confluence with Red Cedar River ...... +1113 +1112 City of Rice Lake, Unincor- porated Areas of Barron County. 750 feet upstream of U.S. Hwy 53 ...... None +1191 Sand Lake ...... Entire Shoreline ...... None +1226 Unincorporated Areas of Barron County. Shallow Lake ...... Entire Shoreline ...... None +1240 Unincorporated Areas of Barron County.

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

Silver Lake ...... Entire Shoreline ...... None +1258 Unincorporated Areas of Barron County. Tuscobia Lake/Stump Lake .. Entire Shoreline ...... None +1129 Unincorporated Areas of Barron County. Upper Turtle Lake ...... Entire Shoreline ...... None +1174 Unincorporated Areas of Barron County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Cumberland Maps are available for inspection at 1356 2nd Ave, Cumberland, WI 54829. City of Rice Lake Maps are available for inspection at 30 E Eau Claire St, Rice Lake, WI 54868. Unincorporated Areas of Barron County Maps are available for inspection at 330 East LaSalle Avenue, Barron, WI 54812. Village of Cameron Maps are available for inspection at 300 North First Street, Cameron, WI 54822. Village of Haugen Maps are available for inspection at 104 West 3rd Street, Haugen, WI 54841.

(Catalog of Federal Domestic Assistance No. Dated: October 22, 2008. 97.022, ‘‘Flood Insurance.’’) Michael K. Buckley, Acting Assistant Administrator, Mitigation Directorate, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8–25878 Filed 10–29–08; 8:45 am] BILLING CODE 9110–12–P

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Notices Federal Register Vol. 73, No. 211

Thursday, October 30, 2008

This section of the FEDERAL REGISTER FOR FURTHER INFORMATION CONTACT: for sale or distribution of the product contains documents other than rules or Jason Hitchcock, (202) 720–4343. bearing the 4–H Club Name and/or proposed rules that are applicable to the Information is also available at http:// Emblem. The information collected by public. Notices of hearings and investigations, www.national4-hheadquarters.gov/ CSREES will be used to determine if committee meetings, agency decisions and emblem/4h_name.htm. rulings, delegations of authority, filing of those applying to use the 4–H Name petitions and applications and agency SUPPLEMENTARY INFORMATION: and/or Emblem meet the regulatory statements of organization and functions are Title: Application for Authorization to requirements. If the information is not examples of documents appearing in this Use the 4–H Club Name and/or Emblem. collected, it would not be possible to section. OMB Number: 0524–0034. ensure that the products, services, and Current Expiration Date of Approval: materials meet the regulatory March 31, 2009. requirements as well as 4–H educational DEPARTMENT OF AGRICULTURE Type of Request: Intent to request goals and objectives. approval to reinstate and revise an Cooperative State Research, information collection. Estimate of Burden: Minimal changes Education, and Extension Service Abstract: Use of the 4–H Club Name have been proposed to this collection and/or Emblem is authorized by an Act and the public reporting burden remains Notice of Intent To Reinstate and of Congress (18 U.S.C. 707). Use of the at the estimated average .5 hours per Revise a Previously Approved 4–H Club Name and/or Emblem by response. Information Collection anyone other than 4–H Clubs and those Respondents: Individuals, AGENCY: Cooperative State Research, duly authorized by them, households, businesses or other for- Education, and Extension Service, representatives of the United States profit or not-for-profit institutions. USDA. Department of Agriculture, the land- grant colleges and universities, and Estimated Number of Respondents: AGENCY: Notice and request for persons authorized by the Secretary of 60. comments. Agriculture is prohibited by the Estimated Number of Responses per SUMMARY: In accordance with the provisions of 18 U.S.C. 707. The Respondent: 1. Paperwork Reduction Act of 1995 (44 Secretary of Agriculture has delegated Estimated Total Annual Burden on U.S.C. 3501, et seq.)and Office of authority to the Administrator of Respondents: 30 hours. Management and Budget (OMB) CSREES to authorize others to use the 4–H Club Name and Emblem. The Comments: Comments are invited on: implementing regulations (5 CFR part (a) Whether the proposed collection of 1320), this notice announces the Administrator has promulgated regulations at 7 CFR part 8 that govern information is necessary for the proper Cooperative State Research, Education, performance of the functions of the and Extension Service’s (CSREES) such use. The regulatory requirements agency, including whether the intention to request approval to for use of the 4–H Club Name and/or information will have practical utility; reinstate and revise a previously Emblem reflect the high standards of 4– (b) the accuracy of the agency’s estimate approved information collection in H and its educational goals and support of authorizations to use the 4– objectives. Pursuant to provisions of 7 of the burden of the proposed collection H Club Name and/or Emblem. CFR part 8, anyone requesting of information, including the validity of authorization from the Administrator to the methodology and assumptions; (c) DATES: Written comments on this notice use the 4–H Club Name and Emblem is ways to enhance the quality, utility and must be received by December 29, 2008 asked to describe the proposed use in a clarity of the information to be to be assured of consideration. formal application. The collection of collected; and (d) ways to minimize the Comments received after that date will this information is used to determine burden of the collection of information be considered to the extent practicable. whether the applicant’s proposed use on those who are to respond, including ADDRESSES: You may submit comments, will meet the regulatory requirements in through the use of appropriate identified by [docket # and/or RIN #], by 7 CFR part 8 and whether an automated, electronic, mechanical, or any of the following methods: Federal authorization for use should be granted. other technological collection eRulemaking Portal: http:// Need and Use of the Information: techniques or other forms of information regulations.gov. Follow the instructions CSREES will collect information on the technology. for submitting comments. E-mail: name of the individual, partnership, [email protected]; Mail: Jason corporation, or association; the Obtaining a Copy of the Information Hitchcock, Information Systems and organizational address; the name of an Collection: A copy of the information Technology Management, USDA/ authorized representative; the telephone collection and related instructions may CSREES, STOP 2216, 1400 number, facsimile number, website, and be obtained free of charge by contacting Independence Avenue, SW., e-mail address; the proposed use of the Jason Hitchcock by telephone, (202) Washington, DC 20250–2216; Hand 4–H Club Name and/or Emblem; a 720–4343, or by e-mail, Delivery/Courier: Jason Hitchcock, sample of the product showing [email protected]. Information Information Systems and Technology proposed use of the 4–H Club Name and also is available at http:// Management, USDA/CSREES, 800 9th Emblem and list samples of products www.national4-hheadquarters.gov/ Street, SW., Room 4217, Waterfront (i.e., mugs or shirts) or exhibits (i.e., emblem/4h_name.htm. Centre, Washington, DC 20024; Fax: educational brochures, posters, or 202–720–0857. publications) submitted; and the plan

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Done in Washington, DC, this 24th day of providing an interpretation of statutory Signed in Washington, DC, on October 16, October 2008. and regulatory provisions under this 2008. Gale Buchanan, collection. The information collection Eldon Gould, Under Secretary, Research, Education, and requirements for this renewal package Manager, Federal Crop Insurance Economics. are necessary for FCIC to provide an Corporation. [FR Doc. E8–25858 Filed 10–29–08; 8:45 am] interpretation of statutory and [FR Doc. E8–25857 Filed 10–29–08; 8:45 am] BILLING CODE 3410–22–P regulatory provisions upon request. This BILLING CODE 3410–08–P data is used to administer the provisions of 7 CFR part 400, subpart X in DEPARTMENT OF AGRICULTURE accordance with the Federal Crop Insurance Act, as amended. ARCHITECTURAL AND Federal Crop Insurance Corporation We are asking the Office of TRANSPORTATION BARRIERS COMPLIANCE BOARD Notice of Request for Extension of a Management and Budget (OMB) to Currently Approved Information extend its approval of our use of this Meetings Collection information collection activity for an additional 3 years. AGENCY: Architectural and AGENCY: Federal Crop Insurance Transportation Barriers Compliance Corporation, USDA. The purpose of this notice is to solicit comments from the public concerning Board. ACTION: Extension of approval of an this information collection activity. ACTION: Notice of meetings. information collection; comment These comments will help us: request. SUMMARY: The Architectural and (1) Evaluate whether the proposed Transportation Barriers Compliance SUMMARY: This notice announces a collection of information is necessary Board (Access Board) plans to hold its public comment period on the for the proper performance of the regular committee and Board meetings information collection requests (ICRs) functions of the agency, including in Arlington, Virginia, Monday through associated with the interpretation of whether the information has practical Wednesday, November 17–19, 2008, at statutory and regulatory provisions utility; the times and location noted below. administered by Federal Crop Insurance (2) Evaluate the accuracy of the Corporation (FCIC). DATES: The schedule of events is as agency’s estimate of the burden of the follows: DATES: Written comments on this notice proposed collection of information; Monday, November 17, 2008 will be accepted until close of business (3) Enhance the quality, utility, and December 29, 2008. clarity of the information to be 10:30–Noon Planning and Evaluation ADDRESSES: Interested persons are collected; and Committee. invited to submit written comments to (4) Minimize the burden of the 1:30–3 p.m. Technical Programs William J. Murphy, Deputy collection of information on those who Committee. Administrator, Insurance Services are to respond, through use, as 3–4:30 Accessible Design in Education Division, Federal Crop Insurance appropriate, of automated, electronic, Ad Hoc Committee. Corporation, United States Department mechanical, and other collection of Agriculture, 1400 Independence Ave., Tuesday, November 18, 2008 technologies, e.g., permitting electronic SW., Stop 0805, Washington, DC 20250– submission of responses. 9–Noon Ad Hoc Committee Meetings 0805. Comments titled ‘‘Information (Closed to Public): Reports and Collection OMB 0563–0055’’ may be Estimate of burden: The public discussion on public rights-of-way; sent via the Internet to: reporting burden for this collection of acoustics; transportation vehicles; [email protected]. information is estimated to average 0.5 outdoor developed areas; airport hours per response. FOR FURTHER INFORMATION CONTACT: terminal access; passenger vessels; Heyward Baker, Director, Risk Respondents/Affected Entities: Parties and information and communications Management Services Division, Federal affected by the information collection technologies. Crop Insurance Corporation, at the requirements included in this Notice are 2:30–5 p.m. Presentation from the above address, telephone (202) 624– any applicant for crop insurance, a Emergency Transportable Housing 0737. producer with a valid crop insurance Committee. policy, or a private insurance company Wednesday, November 19, 2008 SUPPLEMENTARY INFORMATION: with a reinsurance agreement with FCIC Title: General Administrative or their agents, loss adjusters, 9:30–10:30 a.m. Budget Committee. Regulations; Interpretations of Statutory employees or contractors. 10:30–Noon Ad Hoc Committee and Regulatory Provisions. Meetings (Closed to Public): OMB Number: 0563–0055. Estimated Annual Number of Respondents: 45. Continued from the previous day’s Expiration Date of Approval: March session. 31, 2009. Estimated Annual Number of 1:30–3 p.m. Board Meeting. Type of Request: Extension of a Responses per Respondent: 3.5. ADDRESSES: currently approved information All meetings will be held at Estimated Annual Number of The Westin Arlington Gateway Hotel, collection. Responses: 156. Abstract: FCIC is proposing to renew 801 North Glebe Road, Arlington, VA the currently approved information Estimated Total Annual Burden 22203. collection, OMB Number 0563–0055. It Hours on Respondents: 78. FOR FURTHER INFORMATION CONTACT: For is currently up for renewal and All responses to this notice will be further information regarding the extension for three years. FCIC is summarized and included in the request meetings, please contact David Capozzi, conducting a thorough review of for OMB approval. All comments will Acting Executive Director, (202) 272– information collections associated with also become a matter of public record. 0010 (voice) and (202) 272–0082 (TTY).

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SUPPLEMENTARY INFORMATION: At the Reports. The CS requests approval to use the Board meeting, the Access Board will VI. State Advisory Committee Issues. currently approved ‘‘Company consider the following agenda items: • Illinois SAC. Information’’ Form for International • Approval of the draft September • Minnesota SAC. Partner Search Service (IPS), to include 2008 Board Meeting Minutes. VII. Future Agenda Items. their new Gold Key Service (GKS), by • ADA/ABA Accessibility VIII. Adjourn. adding a check-box to the form. These Guidelines; Federal Agency Updates. Contact Person for Further two services involve the identification • Planning and Evaluation Committee Information: Lenore Ostrowsky, Acting of appropriate potential business Report. Chief, Public Affairs Unit, (202) 376– partners and require the same type of • Technical Programs Committee 8582. information about a client’s exporting Report. Dated: October 28, 2008. and business needs, therefore one form • will be used to meet both functions. The Budget Committee Report. David Blackwood, • Information and Communications primary difference between IPS and General Counsel. Technologies Ad Hoc Committee GKS—GKS provides meetings between Report. [FR Doc. E8–26067 Filed 10–28–08; 4:15 pm] the clients and the appropriate potential • Transportation Vehicles Ad Hoc BILLING CODE 6335–01–P partners that have been identified for Committee Report. them. • Outdoor Developed Areas Ad Hoc The CS would like approval to make Committee Report. DEPARTMENT OF COMMERCE slight modifications to the currently • Passenger Vessels Ad Hoc approved International ‘‘Company Committee Report. Submission for OMB Review; Profile’’ Form based upon • Public Rights-of-Way Ad Hoc Comment Request recommendations from clients. The slight layout and text changes will make Committee Report. The Department of Commerce will the form easier for clients to understand • Airport Terminal Access Ad Hoc submit to the Office of Management and Committee Report. and complete. Budget (OMB) for clearance of the CS also seeks approval to replace the • Accessible Design in Education Ad following proposal for collection of Hoc Committee Report. currently approved ‘‘Customized Market information under the provisions of the Research’’ Form with a more general • Acoustics Ad Hoc Committee Paperwork Reduction Act (44 U.S.C. Report. Customized Services Form that would Chapter 35). be used for a wide variety of customized • Election Assistance Commission Agency: International Trade Report. services, including Customized Market Administration (ITA). Research. We are moving towards All meetings are accessible to persons Title: Export Information Services with disabilities. An assistive listening providing more customized solutions to Order Forms. clients to better meet their needs and system, computer assisted real-time Form Number(s): ITA–4096P. transcription (CART), and sign language this change will allow flexibility to OMB Control Number: 0625–0143. tailor our services to precisely meet interpreters will be available at the Type of Request: Regular submission. Board meeting. Persons attending Board their unique requirements. The Burden Hours: 1,506. standardized services such as GKS, ICP meetings are requested to refrain from Number of Respondents: 9,035. using perfume, cologne, and other and IPS are appropriate for a number of Average Hours per Response: 10 clients, but they are not necessarily the fragrances for the comfort of other minutes. participants. best fit for every client. CS would like Needs and Uses: The Commercial the flexibility to make slight Lisa B. Fairhall, Service (CS) offers a variety of services modifications to the Customized Deputy General Counsel. to enable clients to begin exporting or to Services Form based upon new client expand existing exporting efforts. The [FR Doc. E8–25842 Filed 10–29–08; 8:45 am] needs that may arise within the next CS provides a standard set of services to BILLING CODE 8150–01–P three years and for which we cannot assist clients with identifying potential identify at this point in time. As overseas partners, establishing meeting economic and business conditions vary, programs with appropriate overseas COMMISSION ON CIVIL RIGHTS clients needs may change, and being business contacts and providing due able to make modifications will allow diligence reports on potential overseas Commission Meeting CS to immediately obtain the business partners. The CS also provides information needed to assess the clients’ U.S. Commission on Civil Rights. other export-related services considered needs, and provide the most effective Friday, November 7, 2008. 624 to be of a ‘‘customized nature’’ because and appropriate export-related services. Ninth Street, NW., Rm. 540, they do not fit into the standard set of This information collection request Washington, DC 20425, 9:30 a.m. CS export services, but are driven by also seeks approval to continue the use unique business needs of individual Meeting Agenda of the ‘‘U.S. Supplier Search’’ Form in clients. which CS obtains information on the I. Approval of Agenda. Before the CS can provide export- product and service needs of II. Approval of Minutes. related services to clients, specific international buyers in order for CS to • October 17, 2008 Meeting. information is required to determine the provide details on U.S. suppliers who III. Announcements. client’s business objectives and needs. produce or provide the required IV. Staff Director’s Report. This information collection is designed products or services. V. Program Planning. to elicit such data so that appropriate Affected Public: Business or other for- • Project Outline and Discovery Plan services can be proposed and conducted profit organizations. for FY 2009 Statutory Report. to most effectively meet the client’s Frequency: On occasion. • Policy for Commissioner Rebuttals exporting goals. Without these forms the Respondent’s Obligation: Voluntary. to Concurring and Dissenting CS is unable to provide services when OMB Desk Officer: Wendy Liberante, Statements in National Office requested by clients. (202) 395–3647.

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Copies of the above information was modified in response to comments Memoranda and the DOC policy collection proposal can be obtained by received; (b) the definition of Federally statement. calling or writing Diana Hynek, Recognized Indian Tribe was modified This final policy statement is Departmental Paperwork Clearance in response to comments; (c) the intended only for internal management Officer, (202) 482–0266, Department of definition of trust responsibility was purposes and does not create any right, Commerce, Room 6625, 14th and deleted after agency review; (d) the benefit, or trust responsibility Constitution Avenue, NW., Washington, definition of American Indian or Alaska enforceable against the United States, its DC 20230 (or via the Internet at Native Tribal Government was modified agencies, entities, or instrumentalities, [email protected]. after agency review; (e) proposed Policy its officers or employees, or any other Written comments and Principle No. 2 is renumbered as Policy person. The Census Bureau believes that recommendations for the proposed Principle No. 4; (f) proposed Policy this final policy statement will information collection should be sent Principle No. 3 is renumbered as Policy contribute to the accuracy of the 2010 within 30 days of publication of this Principle No. 5; (g) proposed Policy Decennial Census by improving notice to Wendy Liberante, OMB Desk Principle No. 4 was modified in communications and encouraging Officer,Fax number (202) 395–5806 or response to comments and is greater cooperation with difficult-to- via the Internet at renumbered as Policy Principle No. 2; count populations. _ _ Wendy L. [email protected]. (h) proposed Policy Principle No. 5 is Summary of Comments Received in Dated: October 24, 2008. renumbered as Policy Principle No. 6; (i) proposed Policy Principle No. 6 was Response to the Draft American Indian Gwellnar Banks, and Alaska Native Policy Statement Management Analyst, Office of the Chief modified in response to comments and Information Officer. is renumbered as Policy Principle No. 7; The Census Bureau published a [FR Doc. E8–25813 Filed 10–29–08; 8:45 am] (j) proposed Policy Principle No. 7 is Notice and request for comments on a BILLING CODE 3510–FP–P renumbered as Policy Principle No. 8; draft American Indian and Alaska (k) proposed Policy Principle No. 8 is Native (AIAN) policy statement in the renumbered as Policy Principle No. 9; Federal Register on May 23, 2007—(72 DEPARTMENT OF COMMERCE and (l) proposed Policy Principle No. 9 FR 28952). We received 13 comments in was modified in response to comments response to the draft AIAN policy Bureau of the Census and is renumbered as Policy Principle statement. A summary of comments [Docket Number 070404074–8894–03] No. 3. received and the Census Bureau’s DATES: Effective Date: This final policy responses to these comments are American Indian and Alaska Native will be effective on December 1, 2008. presented below. Policy Statement (1) One commenter suggested that the FOR FURTHER INFORMATION CONTACT: words ‘‘executive orders’’ be inserted in AGENCY: Bureau of the Census, Requests for additional information or the Introduction section of the policy Department of Commerce. copies of the final policy should be statement. The Census Bureau accepted ACTION: Notice of final policy statement. directed to Dee Alexander, Program this suggestion since it is consistent Analyst, Decennial Management SUMMARY: In preparation for the 2010 with the fundamental principles of the Division, Outreach and Promotions Federal Government’s government-to- Census, the Bureau of the Census Branch, U.S. Census Bureau, Room (Census Bureau) adopts the following government relationship with federally 3H166, 4600 Silver Hill Road, Stop recognized tribes that includes American Indian and Alaska Native 7100, Washington, DC 20233–7100, (AIAN) policy statement. This final executive orders issued by the White telephone (301) 763–9335. policy outlines the principles to be House (e.g., Executive Order 13175 of followed in all Census Bureau SUPPLEMENTARY INFORMATION: November 6, 2000—‘‘Consultation and Coordination with Indian Tribal interactions with federally recognized Background AIAN tribal governments. The policy Governments’’). affirms the unique government-to- The government-to-government (2) One commenter suggested that the government relationship that exists relationship with Native American word ‘‘political’’ be inserted before the between AIAN tribal governments and tribal governments (adopted by previous word ‘‘status’’ in the definition of the Census Bureau and is consistent administrations) was reaffirmed by Federally Recognized Indian Tribes. The with the AIAN policy statement adopted President George W. Bush in a White Census Bureau accepted this suggestion by the Department of Commerce (DOC) House Memorandum dated September and added the words ‘‘and legal’’ to this on March 30, 1995. The adoption of this 23, 2004. Among other things, this definition since both terms have been policy satisfies a long-standing request memorandum directs the heads of used to describe the relationship from AIAN populations, and the Census executive agencies to continue to ensure between the United States and AIAN Bureau believes it will encourage and that, to the greatest extent practicable populations (See, e.g., White House facilitate greater cooperation from these and permitted by U.S. law, the agency’s Memorandum of September 23, 2004— populations during decennial censuses working relationship with federally ‘‘Government-to-Government Relations and help us to better communicate with recognized tribal governments fully with Native American Tribal and enumerate this difficult-to-count respect the rights of self-government Governments’’). population. This Notice also and self-determination due tribal (3) One commenter suggested adding summarizes comments received on the governments. Pursuant to an earlier the words ‘‘and individuals’’ to the draft AIAN policy statement published White House Memorandum of April 29, definition of Trust Responsibility. The in the Federal Register on May 23, 2007 1994, the DOC adopted an AIAN policy Census Bureau has determined to delete (72 FR 28952) and the Census Bureau’s statement on March 30, 1995. The this definition from its policy statement response to these comments. The policy Census Bureau is now adopting the since it does not exercise trust statement adopted in this Notice differs AIAN policy statement set forth in this responsibilities as that term is from the proposed policy statement as notice, which is consistent with the commonly used in treaties, statutes, follows: (a) The Introduction section previously cited Presidential executive orders, and regulations

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governing the relationship between the recommends that the Census Bureau which the Census Bureau’s Policy United States and AIAN populations. AIAN policy be restated so that it is Statement is based. (4) Two commenters suggested consistent with DOC’s AIAN policy and (10) The Census Bureau received two inserting the words ‘‘on and off clarifies the Bureau’s intent to consult comments that were outside the scope reservations’’ after the words ‘‘AIAN with tribal nations prior to taking any and nature of the AIAN policy areas’’ in proposed Policy Principles No. action affecting tribes. The Census statement. One comment expressed 2, 5, and 6. For similar reasons, one Bureau adopts these suggestions since concern about the Local Update of commenter suggested inserting the they bring the Census Bureau’s policy in Census Addresses (LUCA) program. The phrase ‘‘living in AIAN areas on and off alignment with the text of the DOC’s Census Bureau acknowledged the reservations’’ after the word ‘‘resident’’ AIAN Policy Statement. comment with a formal letter discussing in proposed Policy Principle No. 8. The (7) One commenter suggested adding a Census Bureau program change for the commenter noted that the proposed the words ‘‘tribal protocols’’ after the LUCA program. A second comment policy statement mentions that special word ‘‘distinct’’ to proposed Policy expressed general concerns about the attention will be paid to those living in Principle No. 6 and another suggested AIAN policy statement, the LUCA an AIAN area. The commenter asked the adding the word ‘‘values’’ after the word program, and the AIAN Geographic Census Bureau to consider the unique ‘‘cultural.’’ The commenter stated that Program. The Census Bureau situations of tribal members who do not many tribal governments now have acknowledged the comment with a live in their tribal membership area or research protocols that govern data formal letter. the geographic AIAN area as that term collection on their lands and from tribal is used by the Census Bureau. Changes to Draft American Indian and members. Using tribal protocols will Alaska Native Policy Statement as a ‘‘American Indian and Alaska Native also mean that tribes will be aware of areas’’ are very specialized terms used Result of Public Comments and Further and plan for Census Bureau count Agency Review by the Census Bureau to describe the activities. The Census Bureau accepts collection of data during decennial these suggestions since they are The Census Bureau makes the censuses. During Census 2000, this term consistent with the other terms found in following changes to the draft AIAN was the subject of a single Federal proposed Policy Principle No. 6. policy statement. Register Notice (See, 65 FR 39062). For (8) One commenter suggested adding (A) Section I—Introduction the 2010 Census, we will make these the words ‘‘and work’’ after the word terms the subject of separate Federal Insert the words ‘‘executive orders’’ ‘‘consult’’ and the phrase ‘‘and Register Notices (See, 73 FR 14203 and after the words ‘‘court decisions’’ so that throughout the planning and 73 FR 17303). The Census Bureau does the sentence now reads as follows: implementation of policy, rules or’’ after not adopt the suggestion to modify the ‘‘This relationship is based on the the word ‘‘decisions’’ to proposed term ‘‘AIAN areas’’ since we believe the United States Constitution, federal Policy Principle No. 9 and renumber generic term is adequate for purposes of treaties, policy, law, court decisions, Policy Principle No. 9 as Policy this Policy statement and is likely to executive orders, and the on-going generate less confusion with respect to Principle No. 3. The commenter stated political relationship among tribes and the use and meaning of the term in other further that these changes would make the federal government. The Census Bureau notices. However, the the Census Bureau AIAN policy relationship results in a federal trust Census Bureau adopts the suggestion to consistent with DOC’s AIAN policy and responsibility to federally recognized insert the phrase ‘‘living in AIAN areas’’ clarify the Bureau’s intent to consult tribal governments.’’ with tribal nations prior to taking any after the word ‘‘resident’’ in proposed (B) Section II—Definitions Policy Principle No. 8. action affecting tribes. The Census (5) A commenter suggested inserting Bureau adopts these suggestions since (i) Under the definition of Federally the words ‘‘and implementation’’ after they are consistent with the Bureau’s Recognized Indian Tribe, insert the the word ‘‘planning’’ in proposed Policy current practice regarding collaborative words ‘‘political and legal’’ in front of Principle No. 3. The commenter stated efforts with AIAN populations and the word ‘‘status,’’ so that the revised that Principle No. 3 refers to planning combining the two principles results in phrase now reads as follows: only and should include tribal a more streamlined statement. ‘‘relationships established by the United government’s involvement in the (9) A commenter suggested inserting States for indigenous people because of implementation process. The Census the words ‘‘or regional or village their political and legal status as AIAN Bureau accepted this suggestion since it corporation’’ after the words ‘‘including tribes, Bands, Nations, Pueblos or is consistent with the Census Bureau’s any Alaska Native village’’ in the communities.’’ commitment and current practice to definition of Federally Recognized (ii) Modify the definition of American work in partnership with tribal Indian Tribe. As the basis for this Indian and Alaska Native Tribal governments when conducting census suggestion, the commenter cited the Government to read as follows: ‘‘The activities within tribal communities. definition of Federally recognized tribe recognized government of an Indian (6) One commenter suggested that the in the Native American Housing tribe and any affiliated or component following text should be added to Assistance and Self-Determination Act Band government of such tribe that the proposed Policy Principle No. 4. ‘‘The of 1996 (25 U.S.C. 4101 et seq.) that Secretary of the Interior recognizes to be Census Bureau acknowledges the trust includes the word ‘‘regional’’ and eligible for the special programs and relationship between the federal recognizes as tribes regional services provided by the United States government and AIAN tribes as corporations established pursuant to the to Indians because of their status as established by specific statues, treaties, Alaska Native Claims Settlement Act (43 Indians by annual notice in the Federal court decisions, executive orders, U.S.C. 1601 et seq.). The Census Bureau Register pursuant to the Federally regulations and policies.’’ This does not adopt this suggestion because Recognized Indian Tribe List Act of commenter also suggested that proposed the definition in the proposed Policy 1994 (Pub. L. 103–454, 108 Stat. 4791). Policy Principle No. 4 should be given Statement is consistent with the text in The most recent annual notice (‘‘Indian greater prominence by renumbering it as the definition for Indian tribe (or tribe) Entities Recognized and Eligible to Policy Principle No. 2. The commenter in the DOC AIAN Policy Statement on Receive Services from the United States

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Bureau of Indian Affairs’’) was (vii) Under proposed Policy Principle March 30, 1995. This policy is for published in the Federal Register on No. 8, insert the phrase ‘‘living in AIAN internal management only and does not April 4, 2008 (73 FR 18553). The Census areas’’ after the word ‘‘resident.’’ grant or vest any right to any party in Bureau is making this modification to Proposed Policy Principle No. 8 is respect to any federal action not clarify the process to be used to renumbered as Policy Principle No. 9 otherwise granted or vested by existing determine the tribal entities covered by and now reads as follows: law or regulations. 9. ‘‘The Census Bureau acknowledges the Bureau’s AIAN policy statement. Definitions its responsibility to provide accurate (C) Section III—Policy Principles demographic and economic data on Federally Recognized Indian Tribe: (i) Policy Principle No. 2 is AIAN populations and their businesses. Any AIAN, Band, Nation, Pueblo, or renumbered as Policy Principle No. 4. The Census Bureau will work with other organized group or community, (ii) Under proposed Policy Principle tribal governments and other partners to including any Alaska Native village, as No. 3, insert the words ‘‘and encourage the participation of every defined or established pursuant to the implementation’’ after the word resident living in AIAN areas. Alaska Native Claims Settlement Act ‘‘planning.’’ The principle is (viii). Under proposed Policy (Title 43, United States Code (U.S.C.), renumbered as Policy Principle No. 5 Principle No. 9: Chapter 33, Section 1601 et seq.), and now reads as follows: (a) Insert the words ‘‘and work’’ after acknowledged by the Federal 5. ‘‘The Census Bureau recognizes and the word ‘‘consult.’’ Government to constitute a tribe with a invites tribal governments involvement (b) Add the phrase ‘‘and throughout government-to-government relationship in the Census Bureau planning and the planning and implementation of with the United States and eligible for implementation for censuses and policy, rules or’’ after the word the programs, services, and other surveys toward ensuring the most ‘‘decisions.’’ relationships established by the United accurate counts and data for the AIAN (c) Renumber this Policy Principle as States for indigenous people because of population.’’ Policy Principle No. 3. This principle their political and legal status as AIAN (iii) Under proposed Policy Principle now reads as follows: tribes, Bands, Nations, Pueblos, or No. 4, at the beginning of the principle’s 3. ‘‘The Census Bureau will consult communities. text—insert the following sentence: and work with AIAN tribal governments American Indian and Alaska Native ‘‘The Census Bureau acknowledges before making decisions and throughout Tribal Government: The recognized the trust relationship between the the planning and implementation of government of an Indian tribe and any federal government and AIAN Tribes as policy, rules, or programs that may affiliated or component Band established by specific statutes, treaties, affect tribes to ensure that tribal rights government of such tribe that the court decisions, executive orders, and concerns are addressed. Secretary of the Interior recognizes to be regulations, and policies.’’ Proposed Consultation will provide, but is not eligible for the special programs and Policy Principle No. 4 is renumbered as limited to, mutually agreed-upon services provided by the United States Policy Principle No. 2 and now reads as protocols for timely communication, to Indians because of their status as follows: coordination, cooperation, and Indians by annual notice in the Federal 2. ‘‘The Census Bureau acknowledges collaboration.’’ Register pursuant to the Federally the trust relationship between the Recognized Indian Tribe List Act of federal government and AIAN Tribes as American Indian and Alaska Native 1994 (Pub. L. 103–454, 108 Stat. 4791). established by specific statutes, treaties, Policy of the U.S. Census Bureau The most recent annual notice (‘‘Indian court decisions, executive orders, Introduction Entities Recognized and Eligible to regulations, and policies. The Census Receive Services from the United States Bureau’s procedures for outreach, The U.S. Census Bureau hereby Bureau of Indian Affairs’’) was notice, and consultation will ensure proclaims its American Indian and published in the Federal Register on involvement of AIAN tribal Alaska Native (AIAN) policy. This April 4, 2008 (73 FR 18553). governments, to the extent practicable Policy outlines the principles to be and permitted by law, before making followed in all Census Bureau Policy Principles decisions or implementing policies, interactions with federally recognized The following policy statements rules, or programs that affect federally AIAN tribal governments. It reaffirms provide general guidelines to Census recognized governments.’’ the unique government-to-government Bureau employees for actions dealing (iv) Proposed Policy Principle No. 5 is relationship that exists between AIAN with AIAN governments. renumbered as Policy Principle No. 6. tribal governments and the Census (1) The Census Bureau recognizes the (v) Under proposed Policy Principle Bureau. unique government-to-government No. 6, insert the words ‘‘tribal This relationship is based on the relationship between the United States protocols’’ after the word ‘‘distinct’’ and United States Constitution, federal and federally recognized AIAN tribal insert the word ‘‘values’’ after the word treaties, policy, law, court decisions, governments, as affirmed by the ‘‘cultural.’’ Proposed Policy Principal executive orders, and the ongoing September 23, 2004, White House No. 6 is renumbered as Policy Principle political relationship among tribes and Memorandum for the Heads of No. 7 and now reads as follows: the Federal Government. The Executive Departments and Agencies 7. ‘‘The Census Bureau recognizes relationship results in a federal trust and the AIAN policy of the DOC. that there are distinct tribal protocols, responsibility to federally recognized (2) The Census Bureau acknowledges cultural values, practices, religious tribal governments. the trust relationship between the beliefs, traditions, climate conditions, as The foundation for this policy federal government and AIAN tribes as well as a tribe’s authority over its land statement is the White House established by specific statutes, treaties, areas that must be considered and Memorandum of September 23, 2004, court decisions, executive orders, abided by when conducting any census ‘‘Government-to-Government Relations regulation, and policies. The Census survey in AIAN areas.’’ with Native American Tribal Bureau’s procedures for outreach, (vi) Proposed Policy Principle No. 7 is Governments’’ and the AIAN policy of notice, and consultation will ensure renumbered as Policy Principle No. 8. the U.S. Department of Commerce of involvement of AIAN tribal

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governments, to the extent practicable Executive Order 12866 § 146.41) or domestic (duty paid) status and permitted by law, before making This Notice has been determined to be (19 CFR § 146.43). The applicant is not decisions or implementing policies, not significant under Executive Order seeking manufacturing or processing rules, or programs that affect federally 12866. authority with this request. recognized tribal governments. Dated: October 21, 2008. FTZ procedures would exempt adidas (3) The Census Bureau will consult Steve H. Murdock, from customs duty payments on foreign and work with AIAN tribal governments products that are re–exported (about 2% before making decisions and throughout Director, Bureau of the Census. [FR Doc. E8–25848 Filed 10–29–08; 8:45 am] of shipments). On domestic sales, duty the planning and implementation of payments would be deferred until the policy, rules, or programs that may BILLING CODE 3510–07–P foreign merchandise is shipped from the affect tribes to ensure that tribal rights facility and entered for U.S. and concerns are addressed. Consultation will provide for, but is not DEPARTMENT OF COMMERCE consumption. Certain logistical/supply chain management savings would also limited to, mutually agreed-upon Foreign–Trade Zones Board protocols for timely communication, be realized through subzone status. The coordination, cooperation, and [Docket 54–2008] application indicates that the savings collaboration. from FTZ procedures would help Foreign–Trade Zone 38 – Spartanburg, improve the facility’s international (4) The Census Bureau recognizes South Carolina each tribal government as a functioning competitiveness. In accordance with the Board’s governing body that the Census Bureau Application for Subzone Status adidas will work with to count and collect Sales, Inc. regulations, Claudia Hausler of the FTZ data, as accurately as possible, of all Staff is designated examiner to residents living in AIAN areas. (Athletic Footwear and Apparel investigate the application and report to (5) The Census Bureau recognizes and Distribution) the Board. invites tribal governments’ involvement Public comment is invited from An application has been submitted to in the Census Bureau planning and interested parties. Submissions (original implementation for censuses and the Foreign–Trade Zones Board (the Board) by the South Carolina State Ports and 3 copies) shall be addressed to the surveys toward ensuring the most Board’s Executive Secretary at the accurate counts and data for the AIAN Authority, grantee of FTZ 38, requesting address below. The closing period for population. special–purpose subzone status for the their receipt is December 29, 2008. (6) The Census Bureau will continue footwear and apparel warehousing and distribution facility of adidas Sales, Inc. Rebuttal comments in response to its partnerships with tribal governments material submitted during the foregoing to enhance awareness of all censuses, (adidas), located in Spartanburg, South period may be submitted during the surveys, and geography programs, Carolina. The application was submitted subsequent 15–day period to January 13, particularly those including residents pursuant to the provisions of the living in AIAN areas. Foreign–Trade Zones Act, as amended 2009. (19 U.S.C. 81a–81u), and the regulations (7) The Census Bureau recognizes that A copy of the application and of the Board (15 CFR part 400). It was there are distinct tribal protocols, accompanying exhibits will be available formally filed on October 20, 2008. cultural values, practices, religious for public inspection at each of the The adidas facility (1,959,293 sq. ft. beliefs, traditions, and climate following locations: Greenville U.S. /251 acres, 1,300 employees) is located conditions, as well as a tribe’s authority Department of Commerce Export at 685 Cedar Crest Road, Spartanburg, over its land areas, that must be Assistance Center, Buck Mickel Center South Carolina. The facility is used for considered and abided by when at Greenville Technical College, 216 S. warehousing and distribution of conducting any census or survey in foreign– origin apparel for the U.S. Pleasantburg Drive, Suite 243, AIAN areas. market and export. FTZ procedures Greenville, South Carolina; and, Office (8) The Census Bureau recognizes the would be utilized to support adidas’ of the Executive Secretary, Foreign– importance of effective and efficient U.S.–based distribution activity. Trade Zones Board, Room 2111, U.S. coordination with other federal agencies Finished apparel products to be Department of Commerce, 1401 in the planning process of any census or admitted to the proposed subzone for Constitution Avenue, NW, Washington, survey that will include AIAN tribal distribution would include men’s, boys’, DC 20230–0002. For further governments. women’s and girls’ shoes, coats, suits, information, contact Claudia Hausler at (9) The Census Bureau acknowledges blouses, shirts, tops, jumpers, [email protected], or (202) its responsibility to provide accurate underwear, hosiery, pajamas, athletic 482–1379. demographic and economic data on wear, scarves, shawls, mufflers, gloves/ Dated: October 22, 2008. AIAN populations and their businesses. mittens, and infants’ apparel. Certain Andrew McGilvray, The Census Bureau will work with textile fabrics (wool, cotton, man–made tribal governments and other partners to fiber) would also be distributed from the Executive Secretary. encourage the participation of every proposed subzone. Additional products [FR Doc. E8–25950 Filed 10–29–08; 8:45 am] resident living in AIAN areas. that would be admitted to the proposed BILLING CODE 3510–DS–S Therefore, the Director of the Census subzone for distribution are umbrellas, Bureau hereby directs all directorates various instruments, sporting goods, and their components (divisions, sunglasses, cameras, jewelry, plates, branches, and offices) to implement this leather goods, boxes, cases and paints. policy by incorporating all of the above All foreign–origin apparel and textile principles in their interactions with products that are subject to quotas will federally recognized AIAN tribal be admitted to the proposed subzone governments. under privileged foreign status (19 CFR

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DEPARTMENT OF COMMERCE datasets are appropriate for assessment assessment approaches, and determine analyses. The product of the Stock whether the assessments are adequate National Oceanic and Atmospheric Assessment Workshop is a stock for submission to the review panel. Administration assessment report which describes the August 24–28, 2009; SEDAR 18 Review RIN 0648–XL52 fisheries, evaluates the status of the Workshop stock, estimates biological benchmarks, Fisheries of the South Atlantic; projects future population conditions, August 24, 2009: 1 p.m. - 8 p.m.; August Southeastern Data, Assessment, and and recommends research and 25–27, 2009: 8 a.m. - 8 p.m.; August 28, Review (SEDAR); Atlantic red drum; monitoring needs. The assessment is 2009: 8 a.m. - 1 p.m. Public Meeting independently peer reviewed at the The Review Workshop is an Review Workshop. The product of the independent peer review of the AGENCY: National Marine Fisheries Review Workshop is a Peer Review assessment developed during the Data Service (NMFS), National Oceanic and Evaluation Report documenting Panel and Assessment Workshops. Workshop Atmospheric Administration (NOAA), opinions regarding the strengths and Panelists will review the assessment Commerce. weaknesses of the stock assessment and and document their comments and ACTION: Notice of SEDAR Workshops for input data. Participants for SEDAR recommendations in a Peer Review Atlantic red drum. Workshops are appointed by the Gulf of Evaluation Report. Mexico, South Atlantic, and Caribbean SUMMARY: The SEDAR assessments of Although non-emergency issues not Fishery Management Councils; the contained in this agenda may come the Atlantic stock of red drum will Atlantic and Gulf States Marine consist of a series of three workshops: before these groups for discussion, in Fisheries Commissions; and NOAA accordance with the Magnuson-Stevens a Data Workshop, an Assessment Fisheries Southeast Regional Office and Workshop, and a Review Workshop. Fishery Conservation and Management Southeast Fisheries Science Center. Act (Magnuson-Stevens Act), those This is the eighteenth SEDAR. See Participants include data collectors and SUPPLEMENTARY INFORMATION. issues may not be the subject of formal database managers; stock assessment action during these meetings. Actions DATES: The Data Workshop will take scientists, biologists, and researchers; will be restricted to those issues place February 9–13, 2009; the constituency representatives including specifically identified in this notice and Assessment Workshop will take place fishermen, environmentalists, and any issues arising after publication of June 1–5, 2009; the Review Workshop NGO’s; International experts; and staff this notice that require emergency will take place August 24–28, 2009. See of Councils, Commissions, and state and action under Section 305 (c) of the SUPPLEMENTARY INFORMATION. federal agencies. Magnuson-Stevens Act, provided the ADDRESSES: The Data Workshop will be SEDAR 18 Workshop Schedule: public has been notified of the Council’s held at the Hilton Garden Inn, 5265 intent to take final action to address the International Boulevard, North February 9–13, 2009; SEDAR 18 Data emergency. Charleston, SC 29418; telephone: (800) Workshop 782–9444 or (843) 308–9330. The Special Accommodations February 9, 2009: 1 p.m.- 8 p.m.; Assessment Workshop will be held at February 10–12, 2009: 8 a.m. - 8 p.m.; These meetings are physically the Hilton Garden Inn, 5265 February 13, 2009: 8 a.m. - 1 p.m. accessible to people with disabilities. International Boulevard, North Requests for sign language Charleston, SC 29418; telephone: (800) An assessment data set and associated interpretation or other auxiliary aids 782–9444 or (843) 308–9330. The documentation will be developed should be directed to the Council office Review Workshop will be held at the during the Data Workshop. Participants (see ADDRESSES) at least 10 business Doubletree Buckhead, Atlanta, 3342 will evaluate all available data and days prior to each workshop. select appropriate sources for providing Peachtree Road, NE, Atlanta, GA 30326; Dated: October 27, 2008. telephone: (800) 222–8733 or (404) 231– information on life history Tracey L. Thompson 1234. characteristics, catch statistics, discard estimates, length and age composition, Acting Director, Office of Sustainable FOR FURTHER INFORMATION CONTACT: Dale Fisheries, National Marine Fisheries Service. and fishery dependent and fishery Theiling, SEDAR Coordinator, 4055 [FR Doc. E8–25906 Filed 10–29–08; 8:45 am] Faber Place Drive, Suite 201, North independent measures of stock BILLING CODE 3510–22–S Charleston, SC 29405; telephone: (843) abundance. 571–4366. June 1–5, 2009; SEDAR 18 Assessment SUPPLEMENTARY INFORMATION: The Gulf Workshop DEPARTMENT OF COMMERCE of Mexico, South Atlantic, and Caribbean Fishery Management June 1, 2009: 1 p.m. - 8 p.m.; June 2– Patent and Trademark Office Councils, in conjunction with NOAA 4, 2009: 8 a.m. - 8 p.m.; June 5, 2009: Fisheries and the Atlantic and Gulf 8 a.m. - 1 p.m. Rules for Patent Maintenance Fees States Marine Fisheries Commissions Using datasets provided by the Data ACTION: Proposed collection; comment have implemented the Southeast Data, Workshop, participants will develop request. Assessment and Review (SEDAR) population models to evaluate stock process, a multi-step method for status, estimate population benchmarks SUMMARY: The United States Patent and determining the status of fish stocks in and Sustainable Fisheries Act criteria, Trademark Office (USPTO), as part of its the Southeast Region. SEDAR includes and project future conditions. continuing effort to reduce paperwork three workshops: (1) Data Workshop, (2) Participants will recommend the most and respondent burden, invites the Stock Assessment Workshop and (3) appropriate methods and configurations general public and other Federal Review Workshop. The product of the for determining stock status and agencies to take this opportunity to Data Workshop is a data report which estimating population parameters. comment on the revision of a continuing compiles and evaluates potential Participants will prepare a workshop information collection, as required by datasets and recommends which report, compare and contrast various the Paperwork Reduction Act of 1995,

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Public Law 104–13 (44 U.S.C. was submitted prior to the expiration of unavoidably or unintentionally delayed 3506(c)(2)(A)). a patent, the patentee may petition the maintenance fee payment in an expired DATES: Written comments must be Director to accept and record the patent (PTO/SB/65 and PTO/SB/66), submitted on or before December 29, maintenance fee under 37 CFR 1.377. and to designate or change a fee address 2008. This petition must be accompanied by (PTO/SB/47). No forms are provided for the fee indicated in 37 CFR 1.17(g), the petitions under 37 CFR 1.377 and ADDRESSES: You may submit comments which may be refunded if it is 1.378(e). by any of the following methods: • determined that the refusal to accept the Customers may submit maintenance E-mail: [email protected]. maintenance fee was due to an error by fee payments and surcharges incurred Include ‘‘0651–0016 comment’’ in the the USPTO. during the six-month grace period subject line of the message. If a patent has expired due to before patent expiration by using the • Fax: 571–273–0112, marked to the nonpayment of a maintenance fee, the Maintenance Fee Transmittal Form or attention of Susan Fawcett. patentee may petition the Director to • Mail: Susan K. Fawcett, Records by paying online through the USPTO accept a delayed payment of the Officer, Office of the Chief Information Web site. However, to pay a maintenance fee under 37 CFR 1.378. Officer, Customer Information Services maintenance fee after patent expiration, The Director may accept the payment of Group, Public Information Services the maintenance fee payment and the a maintenance fee after the expiration of Division, United States Patent and appropriate surcharge must be filed the patent if the petitioner shows to the Trademark Office, P.O. Box 1450, together with a petition to accept satisfaction of the Director that the delay Alexandria, VA 22313–1450. unavoidably or unintentionally delayed in payment was unavoidable or • Federal Rulemaking Portal: http:// payment. The USPTO accepts online unintentional. Petitions to accept www.regulations.gov. maintenance fee payments by credit unavoidably or unintentionally delayed card, electronic funds transfer (EFT), or FOR FURTHER INFORMATION CONTACT: payment must also be accompanied by deposit account through the USPTO Requests for additional information the required maintenance fee and Web site. Otherwise, non-electronic should be directed to Robert A. Clarke, appropriate surcharge under 37 CFR payments may be made by check, credit Director, Office of Patent Legal 1.20(i). If the Director accepts the card, or USPTO deposit account. Administration, United States Patent maintenance fee payment upon petition, Customers may submit the other and Trademark Office, P.O. Box 1450, then the patent is reinstated. If the forms and petitions in this collection Alexandria, VA 22313–1450; by USPTO denies a petition to accept electronically through EFS–Web, the telephone at 571–272–7735; or by e-mail delayed payment of a maintenance fee USPTO’s online filing system. The to [email protected]. in an expired patent, the patentee may USPTO also offers a special EFS–Web SUPPLEMENTARY INFORMATION: petition the Director to reconsider that version of Form PTO/SB/66, which is I. Abstract decision under 37 CFR 1.378(e). This used for the automatic processing and petition must be accompanied by the fee immediate rendering of a decision on a Under 35 U.S.C. 41 and 37 CFR indicated in 37 CFR 1.17(f), which may petition to accept an unintentionally 1.20(e)–(i) and 1.362–1.378, the United be refunded if it is determined that the delayed maintenance fee payment. States Patent and Trademark Office refusal to accept the maintenance fee (USPTO) charges fees for maintaining in was due to an error by the USPTO. II. Method of Collection force all utility patents based on The rules of practice (37 CFR 1.33(d) By mail, facsimile, hand delivery, or applications filed on or after December and 1.363) permit applicants, patentees, electronically to the USPTO. 12, 1980. Payment of these maintenance assignees, or their representatives of fees is due at 31⁄2, 71⁄2, and 111⁄2 years record to specify a ‘‘fee address’’ for III. Data after the date the patent was granted. If correspondence related to maintenance OMB Number: 0651–0016. the USPTO does not receive payment of fees that is separate from the Form Number(s): PTO/SB/45/47/65/ the appropriate maintenance fee and correspondence address associated with 66. any applicable surcharge within a grace a patent or application. A fee address Type of Review: Revision of a period of six months following each of must be an address that is associated currently approved collection. the above due dates (at 4, 8, or 12 years with a USPTO customer number. Affected Public: Individuals or after the date of grant), the patent will Customer numbers may be requested by households; businesses or other for- expire at that time. After a patent using the Request for Customer Number profits; and not-for-profit institutions. expires, it is no longer enforceable. form (PTO/SB/125), which is covered Estimated Number of Respondents: Maintenance fees are not required for under OMB Control Number 0651–0035 470,397 responses per year. design or plant patents, or for reissue ‘‘Representative and Address Estimated Time per Response: The patents if the patent being reissued did Provisions.’’ Maintaining a correct and USPTO estimates that it will take the not require maintenance fees. updated address is necessary so that fee- public approximately 20 seconds (0.006 Payments of maintenance fees that are related correspondence from the USPTO hours) to 8 hours to complete this submitted during the six-month grace will be properly received by the information, depending on the form or period before patent expiration must applicant, patentee, assignee, or petition. This includes time to gather include the appropriate surcharge as authorized representative. If a separate the necessary information, prepare the indicated by 37 CFR 1.20(h). fee address is not specified for a patent form or petition, and submit the Submissions of maintenance fee or application, the USPTO will direct completed request. payments and surcharges must include fee-related correspondence to the Estimated Total Annual Respondent the relevant patent number and the correspondence address of record. Burden Hours: 33,426 hours per year. corresponding United States application The USPTO offers forms to assist the Estimated Total Annual Respondent number in order to identify the correct public with providing the information Cost Burden: $4,632,630 per year. The patent and ensure proper crediting of covered by this collection, including the USPTO expects that the petitions the fee being paid. information necessary to submit a included in this collection will be If the USPTO refuses to accept and patent maintenance fee payment (PTO/ prepared by attorneys. Using the record a maintenance fee payment that SB/45), to file a petition to accept an professional rate of $310 per hour for

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associate attorneys in private firms, the expects that the other items in this respondent cost burden for submitting USPTO estimates that the respondent collection will be prepared by the other items in this collection will be cost burden for submitting these paraprofessionals. Using the approximately $2,728,300 per year, for a petitions will be approximately paraprofessional rate of $100 per hour, total annual respondent cost burden of $1,904,330 per year. The USPTO the USPTO estimates that the approximately $4,632,630.

Estimated Estimated Item Estimated time for annual re- annual burden response sponses hours

Maintenance Fee Transmittal Transactions (PTO/SB/45) ...... 5 minutes ...... 204,005 16,320 Electronic Maintenance Fee Transactions ...... 20 seconds ...... 136,003 816 Petition to Accept Unavoidably Delayed Payment of Maintenance Fee in an Expired 8 hours ...... 172 1,376 Patent (37 CFR 1.378(b)) (PTO/SB/65). Petition to Accept Unintentionally Delayed Payment of Maintenance Fee in an Expired 1 hour ...... 2,351 2,351 Patent (37 CFR 1.378(c)) (PTO/SB/66). Petition to Accept Unintentionally Delayed Payment of Maintenance Fee in an Expired 1 hour ...... 800 800 Patent (37 CFR 1.378(c)) (PTO/SB/66)—EFS–Web. Petition to Review Refusal to Accept Payment of Maintenance Fee Prior to Expiration of 4 hours ...... 54 216 Patent (37 CFR 1.377). Petition for Reconsideration of Decision on Petition Refusing to Accept Delayed Pay- 8 hours ...... 175 1,400 ment of Maintenance Fee in an Expired Patent (37 CFR 1.378(e)). ‘‘Fee Address’’ Indication Form (PTO/SB/47) ...... 5 minutes ...... 126,837 10,147

Total ...... 470,397 33,426

Estimated Total Annual Non-hour grant are $980, $2,480, and $4,110 unintentional. The filing fee listed in 37 Respondent Cost Burden: $614,571,323. respectively (discounted to $490, CFR 1.17(g) for a petition to review the There are no capital start-up costs or $1,240, and $2,055 for small entities). refusal to accept the payment of a maintenance costs associated with this The surcharge under 37 CFR 1.20(h) for maintenance fee filed prior to the information collection. However, this paying a maintenance fee during the six- expiration of a patent is $200. The filing collection does have annual (non-hour) month grace period following the above fee listed in 37 CFR 1.17(f) for a petition costs in the form of filing fees, postage intervals is $130 ($65 for small entities). for reconsideration of the decision on a costs, and recordkeeping costs. The surcharge under 37 CFR 1.20(i) for petition refusing to accept the delayed This collection has filing fees in the a petition to accept a maintenance fee payment of a maintenance fee in an form of patent maintenance fees, after the six-month grace period for expired patent is $400. The USPTO surcharges for late payment of maintenance fees, and petition fees. these intervals has expired is $700 estimates that the total filing costs Under 37 CFR 1.20(e)–(g), the patent where the delayed payment is shown to associated with this collection will be 1 1 be unavoidable and $1,640 where the $614,442,370 per year as calculated in maintenance fees due at 3 ⁄2 years, 7 ⁄2 years, and 111⁄2 years after the date of delayed payment is shown to be the accompanying table.

Estimated annual Amount of fee or Estimated annual Fee or surcharge responses surcharge filing costs

Patent maintenance fee at 31⁄2 years ...... 114,683 $980.00 $112,389,340.00 Patent maintenance fee at 31⁄2 years (small entity) ...... 31,479 490.00 15,424,710.00 Patent maintenance fee at 71⁄2 years ...... 95,973 2,480.00 238,013,040.00 Patent maintenance fee at 71⁄2 years (small entity) ...... 23,940 1,240.00 29,685,600.00 Patent maintenance fee at 111⁄2 years ...... 46,752 4,110.00 192,150,720.00 Patent maintenance fee at 111⁄2 years (small entity) ...... 9,611 2,055.00 19,750,605.00 Surcharge for paying maintenance fee during the six-month grace period ...... 7,961 130.00 1,034,930.00 Surcharge for paying maintenance fee during the six-month grace period (small entity) ...... 9,609 65.00 624,585.00 Petition to Accept Unavoidably Delayed Payment of Maintenance Fee in an Expired Patent (37 CFR 1.378(b)) ...... 172 700.00 120,400.00 Petition to Accept Unintentionally Delayed Payment of Maintenance Fee in an Expired Patent (37 CFR 1.378(c)) ...... 3,151 1,640.00 5,167,640.00 Petition to Review Refusal to Accept Payment of Maintenance Fee Prior to Expiration of Patent (37 CFR 1.377) ...... 54 200.00 10,800.00 Petition for Reconsideration of Decision on Petition Refusing to Accept De- layed Payment of Maintenance Fee in an Expired Patent (37 CFR 1.378(e)) 175 400.00 70,000.00 ‘‘Fee Address’’ Indication Form ...... 126,837 0.00 0.00

Total ...... 470,397 ...... 614,442,370.00

The public may submit the forms and is sent by first-class mail, the public estimates that the average first-class petitions in this collection to the may also include a signed certification postage cost for a mailed submission USPTO by mail through the United of the date of mailing in order to receive will be 42 cents, and that approximately States Postal Service. If the submission credit for timely filing. The USPTO 255,841 submissions per year may be

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mailed to the USPTO, for a total postage DEPARTMENT OF DEFENSE Box 788104, Bldg 1554, Rm 138, cost of approximately $107,453 per year. MAGTFTC/MCAGCC, Twentynine Department of the Navy The recordkeeping costs for this Palms, CA 92278–8104; phone: 760– collection are associated with 830–3764; e-mail: Notice of Intent To Prepare an [email protected]. submitting maintenance fee payments, Environmental Impact Statement for forms, and petitions online through the the Proposed Acquisition of Lands and SUPPLEMENTARY INFORMATION: Each of USPTO Web site. It is recommended Establishment of Airspace Contiguous the three scoping meetings will consist that customers who submit fee to the Marine Corps Air Ground of an informal, open house session with payments and documents online print Combat Center, Twentynine Palms, CA information stations staffed by Marine and retain a copy of the Corps representatives. Public comment AGENCY: acknowledgment receipt as evidence of Department of the Navy, DoD. forms will be available and gathered at the successful transaction. The USPTO ACTION: Notice. the information stations, and a stenographer will be available to take estimates that it will take 5 seconds SUMMARY: Pursuant to section (102)(2)(c) (0.001 hours) to print a copy of the oral comments for inclusion in the of the National Environmental Policy record. Details of the meeting locations acknowledgment receipt and that Act of 1969 (42 U.S.C. 4332(2)(c)), as will be announced in local newspapers. approximately 214,556 maintenance fee implemented by the Council on Additional information concerning payments, forms, and petitions will be Environmental Quality Regulations (40 meeting times and the proposed submitted online, for a total of 215 CFR parts 1500–1508), the Department alternatives will be available on the EIS hours per year for printing this receipt. of the Navy announces its intent to Web site located at http:// Using the paraprofessional rate of $100 prepare an Environmental Impact www.29palms.usmc.mil/las. per hour, the USPTO estimates that the Statement (EIS) to study alternatives for The meetings are designed to solicit recordkeeping cost associated with this meeting Marine Corps Marine input from agencies and the affected collection will be approximately Expeditionary Brigade (MEB) sustained, public regarding issues or interests that $21,500 per year. combined arms, live-fire and maneuver should be studied or the reasonable training requirements. The proposed The total non-hour respondent cost alternatives that should be considered action is to request the withdrawal of burden for this collection in the form of for study to meet Marine Corps Marine federal public lands, acquire state and filing fees, postage costs, and Expeditionary Brigade (MEB) sustained, privately owned lands, and to seek the combined arms, live-fire and maneuver recordkeeping costs is estimated to be establishment of Special Use Airspace $614,571,323 per year. training requirements. The public is with the effect of expanding the Marine welcome to comment orally or by IV. Request for Comments Corps Air Ground Combat Center written comment forms at the meeting; (MCAGCC), Twentynine Palms, or, by sending a letter to Mr. Joe Ross, Comments are invited on: (a) Whether California. The Department of the Navy Project Manager, 29Palms Proposed the proposed collection of information will prepare the EIS in cooperation with Training Land/Airspace Acquisition is necessary for the proper performance the Bureau of Land Management and Project, MAGTFTC/MCAGCC, Bldg of the functions of the agency, including Federal Aviation Administration. 1554, Box 788104, Twentynine Palms, whether the information shall have DATES: All written, oral, or telephonic CA 92278–8104; by an e-mail to practical utility; (b) the accuracy of the comments regarding the scope of issues [email protected]; or by agency’s estimate of the burden that the Department of the Navy should voice mail at 760–830–3764. (including hours and cost) of the consider during EIS preparation must be The EIS will consider alternatives for proposed collection of information; (c) received before January 31, 2009. Three the proposed acquisition of training ways to enhance the quality, utility, and public scoping meetings have been land and accompanying Special Use clarity of the information to be scheduled and the meeting locations are Airspace sufficient to meet the training collected; and (d) ways to minimize the as follows: requirements for three MEB battalions, burden of the collection of information 1. December 3, 2009, 5 p.m. to 9 p.m., as a Ground Combat Element, and a on respondents, e.g., the use of Twentynine Palms, CA; correspondingly sized Air Combat automated collection techniques or 2. December 4, 2009, 5 p.m. to 9 p.m., Element to simultaneously maneuver for Victorville, CA; other forms of information technology. 48–72 hours, using combined-arms and 3. December 5, 2009, 5 p.m. to 9 p.m., live fire with their supporting Logistics Comments submitted in response to Ontario, CA. Combat Element and Command this notice will be summarized or ADDRESSES: Written comments or Element. To meet MEB training included in the request for OMB requests for inclusion on the EIS requirements which utilize weapons approval of this information collection; mailing list may be submitted to Project systems and platforms currently and they also will become a matter of public Manager (Attn: Mr. Joseph Ross), Box foreseeable in the Marine Corps record. 788104, Bldg 1554, Rm 138, MAGTFTC/ inventory, more contiguous military Dated: October 24, 2008. MCAGCC, Twentynine Palms, CA range land and airspace than is now 92278–8104. Public meeting locations Susan K. Fawcett, available for training anywhere in the are as follows: United States would be required. Records Officer, USPTO, Office of the Chief 1. Twentynine Palms Junior High The requirement for MEB training Information Officer, Customer Information School, Hay’s Gym, 5798 Utah Trail, reflects a shift in doctrine that emerged Services Group, Public Information Services Twentynine Palms, CA; in the 1990s that placed the MEB as the Division. 2. Hilton Garden Inn Victorville, premier fighting force that would be [FR Doc. E8–25886 Filed 10–29–08; 8:45 am] 12603 Mariposa Road, Victorville, CA; deployed to world crises in the BILLING CODE 3510–16–P 3. Convention Center, 2000 E. foreseeable future. The Marine Corps Convention Center Way, Ontario, CA. studied locations nationwide that might FOR FURTHER INFORMATION CONTACT: meet the training requirements and Project Manager (Attn: Mr. Joseph Ross), concluded that the Southwest Region

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range complex is the best location to center of what is called ‘‘Johnson positions in what is called ‘‘Johnson meet them. This study further Valley,’’ conducting live-fire from Valley’’ and assault different objectives determined that expansion at MCAGCC ground- and air-based combat elements in the eastern portion of the current would be necessary to meet the throughout the training exercise. During range complex and in the proposed sustained MEB training requirement for non-MEB training periods, any newly southern expansion area. Live-fire a three battalion Ground Combat acquired installation lands would be training in the western expansion area Element to maneuver to a single used for live-fire, combined arms would be limited to non-dud producing objective. MCAGCC is the Marine Corps’ training and other military training of ordnance, with dud-producing ordnance service-level training facility for Marine smaller units. With regard to Special only targeted within the current range Air Ground Task Force training, the Use Airspace, this alternative would boundary. Non-MEB training events place through which nearly all Marine establish Restricted Airspace over the would be subject to the same Corps units rotate for training before Western Area to accommodate restrictions. With respect to Special Use deployment. combined arms live-fire from aircraft in Airspace, this alternative would The Marine Corps is studying various support of the Ground Combat Element establish Restricted Airspace over the alternatives to meet MEB training and would determine whether the Western and Southern Areas to requirements at MCAGCC Twentynine current Special Use Airspace over the accommodate combined arms live-fire Palms, CA. At this time, it is anticipated proposed Southern expansion area from aviation and surface units. that the EIS will evaluate five action would need to be converted from Alternative 5 would add the same alternatives and the No Action Military Operational Airspace to 188,000 acres of land to the west of the Alternative. The EIS will also consider Restricted Airspace. base as in Alternatives 1 and 4. During any other reasonable alternatives that Alternative 3 would add the same a MEB training exercise, three battalions are subsequently identified during 22,000 acres of land in the South as would begin movement in an easterly scoping or the preparation of the would be added in Alternatives 1 and 2 direction from separate starting document. The Marine Corps will also and would add approximately 228,000 positions in ‘‘Johnson Valley.’’ Two evaluate opportunities for co-use of the acres to the East of the base. During a battalions would attack separate land, as part of the evaluation of MEB training exercise, two battalions objectives in the current range complex, alternatives. The following is a would begin movement from starting and the third battalion would attack the summary of the alternatives that are positions to the east of the MCAGCC Combined Arms Military Operations in currently proposed to be studied in the current range complex and travel Urban Terrain (CA MOUT) facility in Environmental Impact Statement. together in a westerly direction before the current range complex. Live-fire Alternative 1 would add separating for individual movement training in the western expansion area approximately 188,000 acres to the West once aboard the current MCAGCC. The would be limited to non-dud producing of the base and approximately 22,000 third battalion would begin movement ordnance, with dud-producing ordnance acres to the South of the base, and in a westerly direction from a starting only targeted within the current range accompanying Special Use Airspace. position in the southern portion of the boundary. Non-MEB training events During a MEB training exercise, three current range complex. All three would be subject to the same battalions would begin movement in a battalions would maneuver toward a restrictions. With respect to Special Use westerly direction from different single objective in the northwest portion Airspace, this alternative would starting positions in the current of the current range complex. The two establish Restricted Airspace over the MCAGCC range complex area and battalions that would start in the Western Area to accommodate converge on a single objective in the proposed new areas to the east would combined arms live-fire from aviation western part of what is called ‘‘Johnson conduct live-fire from ground- and air- Valley,’’ conducting live-fire from based combat elements once aboard the and surface units. ground- and air-based combat elements current MCAGCC range complex, and The No Action Alternative would seek throughout the training exercise. During the third battalion would be able to no additional lands and no additional or non-MEB training periods, any newly conduct live fire from ground- and air- changes to Special Use Airspace acquired installation lands would be based combat elements throughout the associated with MCAGCC’s current used for live-fire, combined arms training exercise. During non-MEB range complex. During a MEB exercise, training and other military training of training periods, any newly acquired the three battalions of the ground smaller units. With regard to any installation lands to the east would be combat element would commence their Special Use Airspace, this alternative used for live small arms fire and other operations aboard the current MCAGCC would establish Restricted Airspace military training of smaller units, and range complex in the eastern and central over the Western Area to accommodate any newly acquired installation lands in areas of the base, moving towards a live-fire from aviation and surface units. the south would be used for live-fire, single objective in the northwest corner Special Use Airspace over the proposed combined arms training and other of the current MCAGCC, undertaking Southern expansion area would need to military training of smaller units. In this live-fire and combined arms actions be converted from Military Operational alternative, it is possible that no throughout, except as restrained by on- Airspace to Restricted Airspace. additional Special Use Airspace would base administrative controls. Alternative 2 would add need to be established, or that any The Department of the Navy is approximately 112,000 acres to the West current Special Use Airspace would initiating the scoping process to identify of the base, the same 22,000 acres to the need to be modified. community interests and local issues to South as in Alternative 1, and Alternative 4 would add the same be addressed in the EIS. Federal, state accompanying Special Use Airspace. 188,000 acres to the west of the current and local agencies, Native American During a MEB training exercise, three installation and approximately 22,000 Indian Tribes and interested individuals battalions would begin movement in a acres to the south of the installation as are encouraged to provide oral and/or westerly direction from different are contained in Alternative 1. During a written comments regarding the scope starting positions in the current MEB training exercise, three battalions of the EIS to develop reasonable MCAGCC range complex area and would begin movement in an easterly alternatives and/or to identify specific converge on a single objective in the direction from different starting issues or topics of environmental

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concern that the commenter believes Management Services, Office of information collection, click on should be considered. Management, publishes that notice ‘‘Download Attachments’’ to view. The EIS will evaluate potential containing proposed information Written requests for information should environmental effects associated with collection requests prior to submission be addressed to U.S. Department of action alternatives and the No Action of these requests to OMB. Each Education, 400 Maryland Avenue, SW., Alternative. Potential issues include, proposed information collection, LBJ, Washington, DC 20202–4537. but are not limited to: Land use, grouped by office, contains the Requests may also be electronically recreation, energy development, air following: (1) Type of review requested, mailed to [email protected] or faxed quality, airspace/air traffic, biological e.g. new, revision, extension, existing or to 202–401–0920. Please specify the resources, cultural resources, mining/ reinstatement; (2) Title; (3) Summary of complete title of the information minerals, socioeconomics and noise. the collection; (4) Description of the collection when making your request. A mailing list has been assembled to need for, and proposed use of, the Comments regarding burden and/or facilitate preparation of the EIS. Those information; (5) Respondents and the collection activity requirements on this list will receive notices and frequency of collection; and (6) should be electronically mailed to documents related to EIS preparation. Reporting and/or Recordkeeping [email protected]. Individuals who This list includes local, state, and burden. OMB invites public comment. use a telecommunications device for the federal agencies with jurisdiction or The Department of Education is deaf (TDD) may call the Federal other interests in the alternatives. In especially interested in public comment Information Relay Service (FIRS) at addition, the mailing list includes addressing the following issues: (1) Is 1–800–877–8339. adjacent property owners, affected this collection necessary to the proper [FR Doc. E8–25894 Filed 10–29–08; 8:45 am] municipalities, and other interested functions of the Department; (2) will BILLING CODE 4000–01–P parties such as conservation and off- this information be processed and used highway vehicle organizations. Anyone in a timely manner; (3) is the estimate wishing to be added to the mailing list of burden accurate; (4) how might the DEPARTMENT OF EDUCATION may request to be added by contacting Department enhance the quality, utility, National Assessment Governing the EIS project manager at the address and clarity of the information to be Board; Meeting provided above. collected; and (5) how might the Dated: October 24, 2008. Department minimize the burden of this AGENCY: Department of Education, T.M. Cruz, collection on the respondents, including National Assessment Governing Board. Lieutenant Commander, Judge Advocate through the use of information ACTION: Notice of open meeting and Generals Corps, U.S. Navy, Federal Register technology. partially closed meetings. Liaison Officer. Dated: October 24, 2008. SUMMARY: The notice sets forth the [FR Doc. E8–25845 Filed 10–29–08; 8:45 am] Angela C. Arrington, schedule and proposed agenda of a BILLING CODE 3810–FF–P IC Clearance Official, Regulatory Information forthcoming meeting of the National Management Services, Office of Management. Assessment Governing Board. This Office of Elementary and Secondary notice also describes the functions of DEPARTMENT OF EDUCATION Education the Board. Notice of this meeting is Notice of Proposed Information Type of Review: New. required under Section 10(a)(2) of the Collection Requests Title: Reading First Expenditure Federal Advisory Committee Act. This Study. document is intended to notify members AGENCY: Department of Education. Frequency: Annually. of the general public of their SUMMARY: The IC Clearance Official, Affected Public: Not-for-profit opportunity to attend. Individuals who Regulatory Information Management institutions; State, Local, or Tribal will need special accommodations in Services, Office of Management, invites Gov’t, SEAs or LEAs. order to attend the meeting (i.e., comments on the proposed information Reporting and Recordkeeping Hour interpreting services, assistive listening collection requests as required by the Burden: devices, materials in alternative format) Paperwork Reduction Act of 1995. Responses: 4,420. should notify Munira Mwalimu at 202– DATES: Interested persons are invited to Burden Hours: 13,260. 357–6938 or at [email protected] no later than submit comments on or before Abstract: The U.S. Department of November 10, 2008. We will attempt to December 29, 2008. Education Reading First program has no meet requests after this date, but cannot SUPPLEMENTARY INFORMATION: Section formal mechanism for grantees to report guarantee availability of the requested 3506 of the Paperwork Reduction Act of on specific uses of grant funds. The accommodation. The meeting site is 1995 (44 U.S.C. Chapter 35) requires proposed surveys will collect data on accessible to individuals with that the Office of Management and the use and allocation of Reading First disabilities. Budget (OMB) provide interested grants from current State educational Federal agencies and the public an early agencies (SEA) grantees and their local DATES: November 20–22, 2008. opportunity to comment on information educational agencies (LEA) subgrantees. Times collection requests. OMB may amend or Collecting such information will help waive the requirement for public satisfy the informational needs of key November 20 consultation to the extent that public stakeholders, and inform future grant- Committee Meetings: participation in the approval process making efforts. Ad Hoc Committee on NAEP Testing would defeat the purpose of the Requests for copies of the proposed and Reporting on Students with information collection, violate State or information collection request may be Disabilities and English Language Federal law, or substantially interfere accessed from http://edicsweb.ed.gov, Learners: Open Session—2 p.m. to with any agency’s ability to perform its by selecting the ‘‘Browse Pending 4 p.m. statutory obligations. The IC Clearance Collections’’ link and by clicking on Executive Committee: Open Session— Official, Regulatory Information link number 3844. When you access the 4:30 p.m. to 5 p.m.; Closed

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Session—5 p.m. to 6 p.m. 2012 assessment years, based on On Friday, November 22, the funding for Fiscal Year 2009–2010. The Committee on Standards, Design and November 21 discussion of contract options and costs Methodology will meet in open session Full Board: Open Session—8:30 a.m. to will address the implications for from 9:45 a.m. to 11:30 a.m. and in 9:45 a.m.; Closed Session—12:30 p.m. congressionally mandated goals and closed session from 11:30 a.m. to 12:15 to 1:30 p.m.; Open Session—1:30 p.m. adherence to Board policies on NAEP p.m. During the closed session, the to 4:30 p.m. assessments. This part of the meeting Committee will review results from the Committee Meetings: must be conducted in closed session final trend analysis for the 2008 NAEP Assessment Development Committee: because public discussion of this reading field trial data at grades 4 and Open Session—9:45 a.m. to 11:45 information would disclose 8. The results are sensitive and a.m.; Closed Session—11:45 a.m. to independent government cost estimates confidential and will be utilized to 12:15 p.m. and contracting options, adversely make a decision on development of Committee on Standards, Design and impacting the confidentiality of the work statements for the 2009 Methodology: Open Session—9:45 contracting process. Public disclosure of achievement level setting contracts in a.m. to 11:30 a.m.; Closed Session information discussed would reading and mathematics. The meeting 11:30 a.m.—12:15 p.m. significantly impede implementation of must therefore be conducted in closed Reporting and Dissemination the NAEP contracts, and is therefore session in order to allow the Committee Committee: Open Session—9:45 protected by exemption 9(B) of section to receive and discuss confidential a.m. to 12:15 p.m. 552b(c) of Title 5 U.S.C. acquisition planning and not provide an undue advantage to potential bidders November 22 The second portion of the closed session of the Executive Committee is which would significantly impede Nominations Committee: Closed for discussion of personnel matters. implementation of the NAEP program, Session—7:45 a.m. to 8:45 a.m. These discussions pertain solely to and is therefore protected by exemption Full Board: Open Session—9 a.m. to 12 internal personnel rules and practices of 9(B) of section 552b(c) of Title 5 U.S.C. p.m. an agency and will disclose information The Reporting and Dissemination Location: The Westin Arlington of a personal nature where disclosure Committee will meet in open session on Gateway, 801 North Glebe Road, would constitute an unwarranted November 21 from 9:45 a.m.—12:15 Arlington, VA 20024. invasion of personal privacy. As such, p.m. On November 21 from 12:30 p.m. to FOR FURTHER INFORMATION CONTACT: the discussions are protected by 1:30 p.m. the full Board will meet in Munira Mwalimu, Operations Officer, exemptions 2 and 6 of section 552b(c) closed session to receive a briefing on National Assessment Governing Board, of Title 5 U.S.C. the NAEP Achievement Gaps Report 800 North Capitol Street, NW., Suite On November 21, the full Board will from the Associate Commissioner of 825, Washington, DC 20002–4233, meet in open session from 8:30 a.m. to NCES. The Governing Board will be Telephone: (202) 357–6938. 9 a.m. The Board will approve the provided with embargoed data on the SUPPLEMENTARY INFORMATION: The agenda and the August 2008 Board report that cannot be discussed in an National Assessment Governing Board minutes. The Secretary of Education open meeting prior to their official is established under section 412 of the Margaret Spellings will address the release. The meeting must therefore be National Education Statistics Act of Governing Board and administer the conducted in closed session as 1994, as amended. oath of office to new and reappointed premature disclosure of data would The Board is established to formulate members. Thereafter, the Governing significantly impede implementation of policy guidelines for the National Board will receive a report from the the NAEP program, and is therefore Assessment of Educational Progress Interim Executive Director of the protected by exemption 9(B) of section (NAEP). The Board’s responsibilities Governing Board, and hear an update on 552b(c) of Title 5 U.S.C. include selecting subject areas to be the work of the National Center for From 1:30 p.m. to 2:30 p.m., the assessed, developing assessment Education Statistics (NCES). Board will receive the final report from specifications and frameworks, On November 21, the Board’s the Chair of the Board’s 12th Grade developing appropriate student standing committees—the Assessment Technical Panel on Preparedness achievement levels for each grade and Development Committee, the Committee Research. From 2:45 p.m. to 4 p.m., the subject tested, developing standards and on Standards, Design and Methodology, Board will hear a presentation on procedures for interstate and national and the Reporting and Dissemination Common Core Standards and comparisons, developing guidelines for Committee will meet from 9:45 a.m. to International Benchmarking. This reporting and disseminating results, and 12:15 p.m. session will be followed by an ethics releasing initial NAEP results to the The Assessment Development briefing for members of the Governing public. Committee will meet in open session on Board. The November 21 session of the On November 20, the Ad Hoc November 21, 2008 from 9:45 a.m. to Board meeting is scheduled to adjourn Committee on NAEP Testing and 11:45 a.m. From 11:45 a.m. to 12:15 at 4:30 p.m. Reporting on Students with Disabilities p.m. the Assessment Development On November 22, the Nominations and English Language Learners will Committee will meet in closed session Committee will meet in closed session meet in open session from 2 p.m. to 4 to review secure accessible booklet from 7:45 a.m. to 8:45 a.m. to review p.m. Thereafter, the Executive items at grades 4 and 8 for the NAEP candidate applications for vacant Board Committee will meet in open session 2009 reading and mathematics positions for terms beginning in October from 4:30 p.m. to 5 p.m. and in closed assessments. The meeting must be 2009. These discussions pertain solely session from 5 p.m. to 6 p.m. conducted in closed session as to internal personnel rules and practices During the closed session the disclosure of test items would of an agency and will disclose Executive Committee will receive a significantly impede implementation of information of a personal nature where briefing from the National Center for the NAEP program, and is therefore disclosure would constitute an Education Statistics (NCES) on options protected by exemption 9(B) of section unwarranted invasion of personal for NAEP contracts covering the 2008– 552b(c) of Title 5 U.S.C. privacy. As such, the discussions are

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protected by exemptions 2 and 6 of America LLC (Natural), 3250 Lacey environmental impact statement (FEIS) section 552b(c) of Title 5 U.S.C. Road, 7th Floor, Downers Grove, Illinois or EA for this proposal. The filing of the The full Board will meet in open 60515–7918, filed an application in EA in the Commission’s public record session on November 22 from 9 a.m. to Docket No. CP09–13–000, pursuant to for this proceeding or the issuance of a 10 a.m. to hear a presentation on ‘‘Inside section 7(b) of the Natural Gas Act, Notice of Schedule for Environmental NAEP: Plausible Values Methodology.’’ requesting permission and approval to Review will serve to notify federal and From 10:15 a.m. to 12 p.m., the Board abandon, by sale to CPI Pipe and Steel, state agencies of the timing for the will receive and take action on Inc. (CPI), the following facilities: (1) completion of all necessary reviews, and Committee reports. The November 22, The majority of Natural’s Hooker Lateral the subsequent need to complete all 2008 session of the Board meeting is located in Texas and Beaver Counties, federal authorizations within 90 days of scheduled to adjourn at 12 p.m. Oklahoma; (2) Booster Station No. 63 the date of issuance of the Commission Detailed minutes of the meeting, located in Texas County, Oklahoma; (3) staff’s FEIS or EA. including summaries of the activities of the Baker Lateral located in Texas There are two ways to become the closed sessions and related matters County, Oklahoma; (4) the Beaver involved in the Commission’s review of that are informative to the public and Lateral located in Texas County, this project. First, any person wishing to consistent with the policy of section 5 Oklahoma; (5) the ANR tap located in obtain legal status by becoming a party U.S.C. 552b(c) will be available to the Beaver County, Oklahoma; and (6) the to the proceedings for this project public within 14 days of the meeting. Regier Lateral located in Beaver County, should, on or before the comment date Records are kept of all Board Oklahoma. stated below, file with the Federal proceedings and are available for public Natural states that there has been no Energy Regulatory Commission, 888 inspection at the U.S. Department of flow of gas on the Hooker Lateral for the First Street, NE., Washington, DC 20426, Education, National Assessment last four years and thus the Hooker a motion to intervene in accordance Governing Board, Suite #825, 800 North Lateral and the other appurtenant with the requirements of the Capitol Street, NW., Washington, DC, facilities to be sold no longer serve any Commission’s Rules of Practice and from 9 a.m. to 5 p.m. Eastern Standard purpose. Natural further states that the Procedure (18 CFR 385.214 or 385.211) Time, Monday through Friday. sale of the subject facilities will save and the Regulations under the NGA (18 Electronic Access to This Document: Natural operation and maintenance CFR 157.10). A person obtaining party You may view this document, as well as expenses. Moreover, Natural states that status will be placed on the service list all other documents of this Department the abandonment and transfer of the maintained by the Secretary of the published in the Federal Register, in facilities as proposed will allow Natural Commission and will receive copies of text or Adobe Portable Document to serve the needs of its transportation all documents filed by the applicant and Format (PDF) on the Internet at the shippers more effectively by eliminating by all other parties. A party must submit following site: http://www.ed.gov/news/ inefficiencies associated with the 14 copies of filings made with the fedregister/index.html. To use PDF you operation and maintenance of facilities Commission and must mail a copy to must have Adobe Acrobat Reader, which are no longer required, all as the applicant and to every other party in which is available free at this site. If you more fully set forth in the application the proceeding. Only parties to the have questions about using PDF, call the which is on file with the Commission proceeding can ask for court review of U.S. Government Printing Office (GPO), and open to public inspection. The Commission orders in the proceeding. toll free at 1–888–293–6498; or in the filing may also be viewed on the Web However, a person does not have to Washington, DC area at (202) 512–1530. at http://www.ferc.gov using the intervene in order to have comments ‘‘eLibrary’’ link. Enter the docket considered. The second way to Note: The official version of this document number excluding the last three digits in participate is by filing with the is the document published in the Federal Secretary of the Commission, as soon as Register. Free Internet access to the official the docket number field to access the edition of the Federal Register and the Code document. For assistance, please contact possible, an original and two copies of of Federal Regulations is available on GPO FERC Online Support at comments in support of or in opposition Access at: http://www.gpoaccess.gov/nara/ [email protected] or toll to this project. The Commission will index.html. free at (866) 208–3676, or TTY, contact consider these comments in (202) 502–8659. determining the appropriate action to be Dated: October 27, 2008. Any questions regarding this taken, but the filing of a comment alone Mary Crovo, application should be directed to Bruce will not serve to make the filer a party Interim Executive Director, National H. Newsome, Vice President, Natural to the proceeding. The Commission’s Assessment Governing Board, U.S. Gas Pipeline Company of America LLC, rules require that persons filing Department of Education. 3250 Lacey Road, 7th Floor, Downers comments in opposition to the project [FR Doc. E8–25912 Filed 10–29–08; 8:45 am] Grove, Illinois 60515–7918, telephone: provide copies of their protests only to BILLING CODE 4000–01–P (630) 725–3070, e-mail: the party or parties directly involved in [email protected]. the protest. Pursuant to Section 157.9 of the Persons who wish to comment only DEPARTMENT OF ENERGY Commission’s rules, 18 CFR 157.9, on the environmental review of this within 90 days of this Notice the project should submit an original and Federal Energy Regulatory Commission staff will either: complete two copies of their comments to the Commission its environmental assessment (EA) and Secretary of the Commission. place it into the Commission’s public Environmental commentors will be [Docket No. CP09–13–000] record (eLibrary) for this proceeding; or placed on the Commission’s Natural Gas Pipeline Company of issue a Notice of Schedule for environmental mailing list, will receive America LLC; Notice of Application Environmental Review. If a Notice of copies of the environmental documents, Schedule for Environmental Review is and will be notified of meetings October 24, 2008. issued, it will indicate, among other associated with the Commission’s Take notice that on October 21, 2008, milestones, the anticipated date for the environmental review process. Natural Gas Pipeline Company of Commission staff’s issuance of the final Environmental commentors will not be

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required to serve copies of filed of the Commission’s Rules of Practice of the termination of negotiated rate documents on all other parties. and Procedure (18 CFR 385.211 and agreement with Anadarko Energy However, the non-party commentors 385.214). Anyone filing a motion to Services Company, effective 10/31/08. will not receive copies of all documents intervene or protest must serve a copy Filed Date: 10/21/2008. filed by other parties or issued by the of that document on the Applicant. Accession Number: 20081022–0323. Commission (except for the mailing of Notice is hereby given that the Comment Date: 5 p.m. Eastern Time environmental documents issued by the deadline for filing protests with regard on Monday, November 03, 2008. Commission) and will not have the right to the applicant’s request for blanket Docket Numbers: RP99–176–169. to seek court review of the authorization, under 18 CFR Part 34, of Applicants: Natural Gas Pipeline Co Commission’s final order. future issuances of securities and of America LLC. The Commission strongly encourages assumptions of liability, is November Description: Natural Gas Pipeline electronic filings of comments, protests 24, 2008. Company of America LLC submits First and interventions in lieu of paper using The Commission encourages Revised Sheet 34C to FERC Gas Tariff, the ‘‘eFiling’’ link at http:// electronic submission of protests and Seventh Revised Volume 1, effective 11/ www.ferc.gov. Persons unable to file interventions in lieu of paper, using the 1/08. electronically should submit an original FERC Online links at http:// Filed Date: 10/21/2008. and 14 copies of the protest or www.ferc.gov. To facilitate electronic Accession Number: 20081022–0324. intervention to the Federal Energy service, persons with Internet access Comment Date: 5 p.m. Eastern Time Regulatory Commission, 888 First who will eFile a document and/or be on Monday, November 03, 2008. Street, NE., Washington, DC 20426. listed as a contact for an intervenor Docket Numbers: RP09–29–000. This filing is accessible on-line at must create and validate an Applicants: Questar Overthrust http://www.ferc.gov, using the eRegistration account using the Pipeline Company. ‘‘eLibrary’’ link and is available for eRegistration link. Select the eFiling Description: Questar Overthrust review in the Commission’s Public link to log on and submit the Pipeline Company submits First Revised Reference Room in Washington, DC. intervention or protests. Sheet 3 to its FERC Gas Tariff, Second There is an ‘‘eSubscription’’ link on the Persons unable to file electronically Revised Volume 1-A, effective 11/24/08. Web site that enables subscribers to should submit an original and 14 copies Filed Date: 10/22/2008. receive e-mail notification when a of the intervention or protest to the Accession Number: 20081023–0111. document is added to a subscribed Federal Energy Regulatory Commission, Comment Date: 5 p.m. Eastern Time docket(s). For assistance with any FERC 888 First St., NE., Washington, DC on Monday, November 03, 2008. Online service, please e-mail 20426. The filings in the above-referenced Docket Numbers: RP09–30–000. [email protected], or call Applicants: Florida Gas Transmission (866) 208–3676 (toll free). For TTY, call proceeding are accessible in the Commission’s eLibrary system by Company, LLC. (202) 502–8659. Description: Florida Gas Transmission Comment Date: November 14, 2008. clicking on the appropriate link in the above list. Co, LLC submits Thirteenth Revised Nathaniel J. Davis, Sr., They are also available for review in Sheet 7 et al. to FERC Gas Tariff, Fourth Deputy Secretary. the Commission’s Public Reference Revised Volume 1, effective 11/1/08. [FR Doc. E8–25919 Filed 10–29–08; 8:45 am] Room in Washington, DC. There is an Filed Date: 10/24/2008. Accession Number: 20081024–0129. BILLING CODE 6717–01–P eSubscription link on the Web site that enables subscribers to receive e-mail Comment Date: 5 p.m. Eastern Time notification when a document is added on Wednesday, November 05, 2008. DEPARTMENT OF ENERGY to a subscribed docket(s). For assistance Any person desiring to intervene or to with any FERC Online service, please e- protest in any of the above proceedings Federal Energy Regulatory mail [email protected] or must file in accordance with Rules 211 Commission call (866) 208–3676 (toll free). For TTY, and 214 of the Commission’s Rules of Practice and Procedure (18 CFR 385.211 [Docket No. ER09–104–000] call (202) 502–8659. and 385.214) on or before 5 p.m. Eastern Wheelabrator Bridgeport, L.P.; Nathaniel J. Davis, Sr., time on the specified comment date. It Supplemental Notice That Initial Deputy Secretary. is not necessary to separately intervene Market-Based Rate Filing Includes [FR Doc. E8–25916 Filed 10–29–08; 8:45 am] again in a subdocket related to a Request for Blanket Section 204 BILLING CODE 6717–01–P compliance filing if you have previously Authorization intervened in the same docket. Protests will be considered by the Commission October 24, 2008. DEPARTMENT OF ENERGY in determining the appropriate action to This is a supplemental notice in the be taken, but will not serve to make above-referenced proceeding of Dynegy Federal Energy Regulatory protestants parties to the proceeding. Marketing and Trade’s application for Commission Anyone filing a motion to intervene or market-based rate authority, with an protest must serve a copy of that Combined Notice of Filings accompanying rate tariff, noting that document on the Applicant. In reference such application includes a request for October 27, 2008. to filings initiating a new proceeding, blanket authorization, under 18 CFR Take notice that the Commission has interventions or protests submitted on Part 34, of future issuances of securities received the following Natural Gas or before the comment deadline need and assumptions of liability. Pipeline Rate and Refund Report filings: not be served on persons other than the Any person desiring to intervene or to Docket Numbers: RP96–200–175. Applicant. protest should file with the Federal Applicants: CenterPoint Energy Gas The Commission encourages Energy Regulatory Commission, 888 Transmission Co. electronic submission of protests and First Street, NE., Washington, DC 20426, Description: CenterPoint Energy Gas interventions in lieu of paper, using the in accordance with Rules 211 and 214 Transmission Company submits a notice FERC Online links at http://

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www.ferc.gov. To facilitate electronic Accession Number: 20080923–5065. Applicants: Southwest Power Pool, service, persons with Internet access Comment Date: 5 p.m. Eastern Time Inc. who will eFile a document and/or be on Tuesday, October 14, 2008. Description: Southwest Power Pool, listed as a contact for an intervenor Docket Numbers: ER07–1194–001. Inc submits proposes to revise a portion must create and validate an Applicants: Castlebridge Energy of its Open Access Transmission Tariff. eRegistration account using the Group LLC. Filed Date: 09/23/2008. eRegistration link. Select the eFiling Description: Castlebridge Energy Accession Number: 20080924–0037. link to log on and submit the Group LLC submits an amendment to its Comment Date: 5 p.m. Eastern Time intervention or protests. 8/13/08 Motion for Determination of on Tuesday, October 14, 2008. Persons unable to file electronically Category 1 Seller Status, to be effective Docket Numbers: ER08–1564–000. should submit an original and 14 copies 8/13/08. Applicants: MidAmerican Energy of the intervention or protest to the Filed Date: 09/18/2008. Company. Federal Energy Regulatory Commission, Accession Number: 20080924–0083. Description: MidAmerican Energy 888 First St., NE., Washington, DC Comment Date: 5 p.m. Eastern Time Company submits a Services Agreement 20426. on Thursday, October 02, 2008. for Substation Operator Services and The filings in the above proceedings Docket Numbers: ER08–1042–002; Substation Facility Maintenance Service are accessible in the Commission’s ER08–1055–001. between MidAmerican and Cordova eLibrary system by clicking on the Applicants: Midwest Independent Energy Company, LLC. appropriate link in the above list. They Transmission System. Filed Date: 09/23/2008. are also available for review in the Description: Midwest Independent Accession Number: 20080924–0038. Commission’s Public Reference Room in Transmission System Operator, Inc Comment Date: 5 p.m. Eastern Time Washington, DC. There is an submits supplemental data in response on Tuesday, October 14, 2008. eSubscription link on the Web site that to Data Request 5 pursuant to FERC’s 7/ Docket Numbers: ER08–1565–000. enables subscribers to receive e-mail 30/08 Order. Applicants: California Independent notification when a document is added Filed Date: 09/09/2008. System Operator Corporation. to a subscribed docket(s). For assistance Accession Number: 20080925–0145. Description: Petition of the California with any FERC Online service, please e- Comment Date: 5 p.m. Eastern Time Independent System Operator mail [email protected] or on Thursday, October 02, 2008. Corporation for approval of disposition call (866) 208–3676 (toll free). For TTY, Docket Numbers: ER08–1278–001. of proceeds of penalty assessments. call (202) 502–8659. Applicants: PacifiCorp. Filed Date: 09/22/2008. Nathaniel J. Davis, Sr., Description: PacifiCorp informs that Accession Number: 20080924–0039. on 7/17/08 they submitted revisions to Deputy Secretary. Comment Date: 5 p.m. Eastern Time First Revised FERC Rate Schedule 297 on Tuesday, October 14, 2008. [FR Doc. E8–25911 Filed 10–29–08; 8:45 am] between PacifiCorp and Utah Docket Numbers: ER08–1566–000. BILLING CODE 6717–01–P Associated Municipal Power Systems. Applicants: Central Illinois Light Filed Date: 09/23/2008. Accession Number: 20080924–0041. Company. DEPARTMENT OF ENERGY Comment Date: 5 p.m. Eastern Time Description: Central Illinois Light on Tuesday, October 14, 2008. Company submits the Connection Federal Energy Regulatory Construction Agreement with the City of Commission Docket Numbers: ER08–1560–000. Springfield, IL Office of Public Utilities. Applicants: San Diego Gas & Electric Filed Date: 09/23/2008. Company. Combined Notice of Filings #1 Accession Number: 20080925–0051. Description: San Diego Gas & Electric Comment Date: 5 p.m. Eastern Time September 25, 2008. Company submits proposed on Tuesday, October 14, 2008. Take notice that the Commission modification to the following two tariff received the following electric corporate sheets in Appendices IX and VII of its Take notice that the Commission filings: Transmission Owner Tariff, FERC received the following open access Docket Numbers: EC08–126–000. Electric Tariff, Original Volume 1 transmission tariff filings: Applicants: LS Power Development, effective 1/1/09. Docket Numbers: OA08–157–000. LLC, Luminus Management, LLC. Filed Date: 09/22/2008. Applicants: Southern Company Description: Joint Application of LS Accession Number: 20080924–0135. Services, Inc. Power Development, LLC and Luminus Comment Date: 5 p.m. Eastern Time Description: Southern Company Management, LLC for Approval Under on Tuesday, October 14, 2008. Services, Inc.’s Order No. 890 and Order Section 203 of the Federal Power Act. Docket Numbers: ER08–1561–000. No. 890–B OATT Rollover Reform Filed Date: 09/25/2008. Applicants: Midwest Independent Compliance. Accession Number: 20080925–5004. Transmission System. Filed Date: 09/23/2008. Comment Date: 5 p.m. Eastern Time Description: Midwest Independent Accession Number: 20080923–5042. on Thursday, October 16, 2008. Transmission System Operator, Inc Comment Date: 5 p.m. Eastern Time Take notice that the Commission submits a Large Generator on Tuesday, October 14, 2008. received the following electric rate Interconnection Agreement among Any person desiring to intervene or to filings: Wisconsin Power and Light Company, protest in any of the above proceedings Docket Numbers: ER06–1517–002; the Midwest ISO, and American must file in accordance with Rules 211 ER06–1518–001; EL07–14–001. Transmission Company LLC. and 214 of the Commission’s Rules of Applicants: Wisconsin Power and Filed Date: 09/22/2008. Practice and Procedure (18 CFR 385.211 Light Company. Accession Number: 20080924–0052. and 385.214) on or before 5 p.m. Eastern Description: Amended Settlement Comment Date: 5 p.m. Eastern Time time on the specified comment date. It Agreement. on Tuesday, October 14, 2008. is not necessary to separately intervene Filed Date: 09/23/2008. Docket Numbers: ER08–1563–000. again in a subdocket related to a

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compliance filing if you have previously Description: Power Holdings, LLC & its Open Access Transmission Energy intervened in the same docket. Protests Tieton Hydropower, LLC’s application and Operating Reserve Markets Tariff. will be considered by the Commission for order authorizing disposition of Filed Date: 10/21/2008. in determining the appropriate action to jurisdictional facilities under Section Accession Number: 20081023–0110. be taken, but will not serve to make 203 of the Federal Power Act etc. Comment Date: 5 p.m. Eastern Time protestants parties to the proceeding. Filed Date: 10/24/2008. on Wednesday, November 12, 2008. Anyone filing a motion to intervene or Accession Number: 20081024–0127. Docket Numbers: ER09–107–000. protest must serve a copy of that Comment Date: 5 p.m. Eastern Time Applicants: Koda Energy LLC. document on the Applicant. In reference on Friday, November 7, 2008. Description: Petition of KODA Energy, to filings initiating a new proceeding, Take notice that the Commission LLC for Order Accepting Market-Based interventions or protests submitted on received the following electric rate Rate Tariff for Filing and Granting or before the comment deadline need filings: Waivers and Blanket Approvals and not be served on persons other than the Request for Expedited Action. Docket Numbers: ER97–3359–012. Filed Date: 10/21/2008. Applicant. Applicants: Florida Power & Light The Commission encourages Accession Number: 20081023–0108. Company. Comment Date: 5 p.m. Eastern Time electronic submission of protests and Description: Florida Power & Light interventions in lieu of paper, using the on Wednesday, November 12, 2008. Co.’s Notification of Non-Material Docket Numbers: ER09–108–000. FERC Online links at http:// Changes in Status. www.ferc.gov. To facilitate electronic Applicants: Midwest Independent Filed Date: 10/22/2008. Transmission System, Great River service, persons with Internet access Accession Number: 20081022–5081. who will eFile a document and/or be Energy. Comment Date: 5 p.m. Eastern Time Description: Midwest Independent listed as a contact for an intervenor on Wednesday, November 12, 2008. must create and validate an Transmission System Operator eRegistration account using the Docket Numbers: ER05–737–002. Corporation et al. submit revised tariff eRegistration link. Select the eFiling Applicants: Commerce Energy Inc. sheets with proposed revisions to link to log on and submit the Description: Commerce Energy Attachment O re Open Access intervention or protests. submits supplemental filing to earlier Transmission and Energy Market Tariff Persons unable to file electronically filed Market Power Analysis, request for et al. should submit an original and 14 copies treatment as Category 1 and Tariff Filed Date: 10/21/2008. Accession Number: 20081023–0107. of the intervention or protest to the Revision Filing, as required by order Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory Commission, 697 and 697–A. on Wednesday, November 12, 2008. 888 First St., NE., Washington, DC Filed Date: 10/22/2008. 20426. Accession Number: 20081023–0308. Docket Numbers: ER09–112–000. The filings in the above proceedings Comment Date: 5 p.m. Eastern Time Applicants: Midwest Independent are accessible in the Commission’s on Wednesday, November 12, 2008. Transmission System. Description: Midwest Independent eLibrary system by clicking on the Docket Numbers: ER09–89–001. Transmission System Operator, Inc appropriate link in the above list. They Applicants: Southwest Power Pool, submits an Amended and Restated are also available for review in the Inc. Interconnection and Operating Commission’s Public Reference Room in Description: Southwest Power Pool, Agreement among Wisconsin Electric Washington, DC. There is an Inc submits a clean copy of the relevant Power Company, etc. eSubscription link on the Web site that tariff sheets as Exhibit I with redlined copies showing the adjustments as Filed Date: 10/22/2008. enables subscribers to receive e-mail Accession Number: 20081023–0101. notification when a document is added Exhibit II to their original 10/17/08 filing of revised pages to the OATT. Comment Date: 5 p.m. Eastern Time to a subscribed docket(s). For assistance on Wednesday, November 12, 2008. with any FERC Online service, please e- Filed Date: 10/22/2008. Docket Numbers: ER09–116–000. mail [email protected] or Accession Number: 20081024–0008. Applicants: Idaho Power Company. call (866) 208–3676 (toll free). For TTY, Comment Date: 5 p.m. Eastern Time on Wednesday, November 12, 2008. Description: Idaho Power Co submits call (202) 502–8659. revised depreciation accrual rates, Docket Numbers: ER08–980–001. Nathaniel J. Davis, Sr., Second Revised Sheet 129–A and 129– Applicants: Alliant Energy Corporate B to their OATT etc and Letter clarifying Deputy Secretary. Services, Inc. [FR Doc. E8–25928 Filed 10–29–08; 8:45 am] service of October 22, 2008 filing. Description: Interstate Power and Filed Date: 10/22/2008; 10/23/2008. BILLING CODE 6717–01–P Light Company submits a further Accession Number: 20081024–0042; amended Agreement that includes a 20081023–5089. complete copy of IPL’s current RES–5 DEPARTMENT OF ENERGY Comment Date: 5 p.m. Eastern Time rate schedule as changes to the on Wednesday, November 12, 2008. Federal Energy Regulatory Agreement have been made. Docket Numbers: ER09–117–000. Commission Filed Date: 10/22/2008. Applicants: Midwest Independent Accession Number: 20081023–0309. Transmission System Operator, Inc. Combined Notice of Filings #1 Comment Date: 5 p.m. Eastern Time Description: Midwest Independent on Wednesday, November 12, 2008. Transmission System Operator, Inc October 24, 2008. Docket Numbers: ER08–1257–001. submits Large Generator Take notice that the Commission Applicants: Midwest Independent Interconnection Agreement re Original received the following electric corporate Transmission System. Service Agreement 1983. filings: Description: Midwest Independent Filed Date: 10/23/2008. Docket Numbers: EC09–11–000. Transmission System Operator, Inc Accession Number: 20081024–0006. Applicants: Power Holdings, LLC, submits an amendment to its 7/11/08 Comment Date: 5 p.m. Eastern Time Tieton Hydropower, LLC. filing that proposed various revisions to on Thursday, November 13, 2008.

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Docket Numbers: ER09–118–000. eLibrary system by clicking on the There is an ‘‘eSubscription’’ link on the Applicants: Midwest Independent appropriate link in the above list. They Web site that enables subscribers to Transmission System. are also available for review in the receive e-mail notification when a Description: Midwest Independent Commission’s Public Reference Room in document is added to a subscribed Transmission System Operator, Inc Washington, DC. There is an docket(s). For assistance with any FERC submits an Amended and Restated eSubscription link on the Web site that Online service, please e-mail Large Generator Interconnection enables subscribers to receive e-mail [email protected], or call Agreement with American Transmission notification when a document is added (866) 208–3676 (toll-free). For TTY, call Company, LLC et al. to a subscribed dockets(s). For (202) 502–8659. Filed Date: 10/23/2008. assistance with any FERC Online Comment Date: 5 p.m. Eastern Time Accession Number: 20081024–0005. service, please e-mail on November 12, 2008. Comment Date: 5 p.m. Eastern Time [email protected] or call Nathaniel J. Davis, Sr., on Thursday, November 13, 2008. (866) 208–3676 (toll free). For TTY, call Deputy Secretary. Docket Numbers: ER09–120–000. (202) 502–8659. [FR Doc. E8–25917 Filed 10–29–08; 8:45 am] Applicants: DUKE ENERGY Nathaniel J. Davis, Sr., CAROLINAS, LLC. BILLING CODE 6717–01–P Description: Duke Energy Carolinas, Deputy Secretary. LLC’s CD containing report as part of its [FR Doc. E8–25935 Filed 10–29–08; 8:45 am] DEPARTMENT OF ENERGY power purchase agreements with City of BILLING CODE 6717–01–P Concord, NC. Federal Energy Regulatory Filed Date: 10/23/2008. DEPARTMENT OF ENERGY Commission Accession Number: 20081023–4004. Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory [Docket No. RM98–1–000] on Thursday, November 13, 2008. Commission Any person desiring to intervene or to [Docket No. QF09–37–001] Records Governing Off-the Record protest in any of the above proceedings Communications; Public Notice must file in accordance with Rules 211 Ausra CA I, LLC; Notice of Filing and 214 of the Commission’s Rules of October 24, 2008. Practice and Procedure (18 CFR 385.211 October 24, 2008. This constitutes notice, in accordance and 385.214) on or before 5 p.m. Eastern Take notice that on October 21, 2008, with 18 CFR 385.2201(b), of the receipt time on the specified comment date. It Ausra CA I, LLC, filed an Application of prohibited and exempt off-the-record is not necessary to separately intervene for Certification as a Qualifying Small communications. again in a subdocket related to a Power Production Facility pursuant to Order No. 607 (64 FR 51222, compliance filing if you have previously 18 CFR 292.207(b) of the Commission’s September 22, 1999) requires intervened in the same docket. Protests regulations. Commission decisional employees, who will be considered by the Commission Any person desiring to intervene or to make or receive a prohibited or exempt in determining the appropriate action to protest this filing must file in off-the-record communication relevant be taken, but will not serve to make accordance with Rules 211 and 214 of to the merits of a contested proceeding, protestants parties to the proceeding. the Commission’s Rules of Practice and to deliver to the Secretary of the Anyone filing a motion to intervene or Procedure (18 CFR 385.211, 385.214). Commission, a copy of the protest must serve a copy of that Protests will be considered by the communication, if written, or a document on the Applicant. In reference Commission in determining the summary of the substance of any oral to filings initiating a new proceeding, appropriate action to be taken, but will communication. interventions or protests submitted on not serve to make protestants parties to Prohibited communications are or before the comment deadline need the proceeding. Any person wishing to included in a public, non-decisional file not be served on persons other than the become a party must file a notice of associated with, but not a part of, the Applicant. intervention or motion to intervene, as decisional record of the proceeding. The Commission encourages appropriate. Such notices, motions, or Unless the Commission determines that electronic submission of protests and protests must be filed on or before the the prohibited communication and any interventions in lieu of paper, using the comment date. Anyone filing a motion responses thereto should become a part FERC Online links at http:// to intervene or protest must serve a copy of the decisional record, the prohibited www.ferc.gov. To facilitate electronic of that document on the Applicant and off-the-record communication will not service, persons with Internet access all the parties in this proceeding. be considered by the Commission in who will eFile a document and/or be The Commission encourages reaching its decision. Parties to a listed as a contact for an intervenor electronic submission of protests and proceeding may seek the opportunity to must create and validate an interventions in lieu of paper using the respond to any facts or contentions eRegistration account using the ‘‘eFiling’’ link at http://www.ferc.gov. made in a prohibited off-the-record eRegistration link. Select the eFiling Persons unable to file electronically communication, and may request that link to log on and submit the should submit an original and 14 copies the Commission place the prohibited intervention or protests. of the protest or intervention to the communication and responses thereto Persons unable to file electronically Federal Energy Regulatory Commission, in the decisional record. The should submit an original and 14 copies 888 First Street, NE., Washington, DC Commission will grant such a request of the intervention or protest to the 20426. only when it determines that fairness so Federal Energy Regulatory Commission, This filing is accessible on-line at requires. Any person identified below as 888 First St., NE., Washington, DC http://www.ferc.gov, using the having made a prohibited off-the-record 20426. ‘‘eLibrary’’ link and is available for communication shall serve the The filings in the above proceedings review in the Commission’s Public document on all parties listed on the are accessible in the Commission’s Reference Room in Washington, DC. official service list for the applicable

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proceeding in accordance with Rule The following is a list of off-the- link. Enter the docket number, 2010, 18 CFR 385.2010. record communications recently excluding the last three digits, in the Exempt off-the-record received by the Secretary of the docket number field to access the communications are included in the Commission. The communications document. For assistance, please contact decisional record of the proceeding, listed are grouped by docket numbers in FERC, Online Support at ascending order. These filings are unless the communication was with a [email protected] or toll available for review at the Commission cooperating agency as described by 40 free at (866) 208–3676, or for TTY, in the Public Reference Room or may be contact (202) 502–8659. CFR 1501.6, made under 18 CFR viewed on the Commission’s Web site at 385.2201(e) (1) (v). http://www.ferc.gov using the eLibrary Exempt:

Docket No. File date Presenter or requester

1. CP06–365–000, CP06–366–000, CP06–376–000, CP06–377–000 ...... 10–2–08 Margaret Collins.1 2. CP06–365–000, CP06–366–000, CP06–376–000, CP06–377–000 ...... 10–2–08 Lori Durheim. 3. CP06–365–000, CP06–366–000, CP06–376–000, CP06–377–000 ...... 10–2–08 Sandi Fitts-Freeman. 4. CP06–365–000, CP06–366–000, CP06–376–000, CP06–377–000 ...... 10–2–08 Ron Sadler. 5. CP06–365–000, CP06–366–000, CP06–376–000, CP06–377–000 ...... 10–2–08 Paul Sansone. 6. CP08–31–000 ...... 10–16–08 Hon. Arlen Specter. 7. CP08–475–000 ...... 10–7–08 Hon. John Hoeven. 8. P–2438–000 ...... 9–30–08 Hon. John R. Kuhl, Jr. 9. P–10822–000, et al...... 10–8–08 Hon. Christopher J. Dodd. Hon. Joseph Lieberman. Hon. Christopher S. Murphy. 1 One of five emails (nos. 1–5 of this notice) commenting on Commission decision in the Bradwood Landing proceeding.

Nathaniel J. Davis, Sr., maintenance and business needs.’’ 2 As include ‘‘Discussion Topic’’ in the Deputy Secretary. part of the compliance process, the subject line. [FR Doc. E8–25915 Filed 10–29–08; 8:45 am] Commission authorized Commission Background material on the standards BILLING CODE 6717–01–P staff to continue their dialog with ‘‘the and requirements can be found on the industries involved to help the Commission’s Web site (www.ferc.gov; industries better understand the use of click on eTariff under the Documents DEPARTMENT OF ENERGY the code values as well as to discuss and Filings Heading). issues that may arise regarding methods Federal Energy Regulatory of implementing the standards.’’ 3 The technical conference is open to Commission the public. The conference will be held This first technical conference is from 10 a.m. until 4 p.m. (EDT) at the designed to provide tariff filers and Federal Energy Regulatory Commission, [Docket No. RM01–5–000] third-party software developers with an 888 First Street, NE., Washington, DC opportunity to obtain technical 20426. In addition, the conference will Electronic Tariff Filings; Notice of information about the requirements of be accessible via WebEx and telephone. Technical Conference Regarding the standards to assist companies in Electronic Tariff Filing developing software and in determining Those wishing to participate via a whether developing or purchasing WebEx (http://www.webex.com) October 24, 2008. software would best fit their tariff computer connection and telephone Take notice that on Wednesday, maintenance needs. The conference also must submit by no later than November December 3, 2008, a technical will consider the schedule for future 24, 2008, a request to [email protected]. conference will be held to discuss the conferences and the subjects to be The e-mail must include Registration in the subject line and the requester’s implementation of electronic tariff discussed at those conferences. name, e-mail address, and telephone filing. In Order No. 714,1 the The format of the conference will be number in the body of the e-mail. Only Commission adopted regulations interactive, and companies are the first 50 requests to use the WebEx requiring that, as of April 10, 2010, tariff encouraged to ask questions about the computer connection to view and tariff related filings must be made technical aspects of the standards. To documents can be honored. All electronically. The Commission adopted help Commission staff in planning the telephonic connection requests can be a set of protocols and standards conference so that it will provide as honored. We will notify WebEx developed through a consensus process much assistance to the industries as requesters if their request to use WebEx under the auspices of the North possible, participants are encouraged to computer connections can be granted submit by e-mail in advance of the American Energy Standards Board and will provide the appropriate Logon meeting the topics or questions they (NAESB) to govern the manner and information by e-mail prior to the would like discussed. Emails should be format in which such filings must be conference. We anticipate that most of directed to [email protected] and should made. NAESB developed these the material to be referenced on WebEx standards and protocols to provide each during the conference is posted on the 2 filing company with the ‘‘flexibility to Order No. 714, at P 9. The Commission also Commission’s Web site, so even those recognized that ‘‘these standards and protocols also develop software to better integrate tariff without the WebEx computer filings with their individual tariff will provide an open platform permitting third- party software developers to create more efficient connection should be able to follow tariff filing and maintenance applications, which most of the discussion. 1 Electronic Tariff Filings, Order No. 714, 73 FR will spread the development costs over larger 57,515 (Oct. 3, 2008), 124 FERC ¶ 61,270 (Sept. 19, numbers of companies.’’ Id. For more information, contact Keith 2008). 3 Order No. 714, at P 88. Pierce, Office of Energy Markets and

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Reliability at (202) 502–8525 or Background (2) The exemption applies to the two [email protected]. existing injection wells, UIC Well No. 1 AK Steel submitted a petition for and Nathaniel J. Davis, Sr., renewal of an existing exemption from UIC Well No. 2, located at the AK Deputy Secretary. the land disposal restrictions of Steel facility at 1801 Crawford Street, [FR Doc. E8–25918 Filed 10–29–08; 8:45 am] hazardous waste on March 6, 2006. EPA Middletown, Ohio; BILLING CODE 6717–01–P personnel reviewed all data pertaining (3) Injection is limited to that part of to the petition, including, but not the lower Eau Claire Formation, Mt. limited to, well construction, well Simon Sandstone, and upper Middle operations, regional and local geology, Run Sandstone at depths between 2,900 ENVIRONMENTAL PROTECTION seismic activity, penetrations of the and 3,296 feet below the surface AGENCY confining zone, and computational (referenced from an eight-foot Kelly models of the injection zone. EPA has bushing); [FRL–8736–6] determined that the geologic setting at (4) Only wastes denoted by the RCRA the site as well as the construction and waste code K062 may be injected; Approval of a Petition for Exemption operation of the wells are adequate to (5) Maximum concentrations of From Hazardous Waste Disposal prevent fluid migration out of the chemical contaminants that are Injection Restrictions to AK Steel injection zone within 10,000 years, as hazardous at less than one part per Corporation, Middletown, OH required under 40 CFR part 148. The million are limited according to the injection zone at this site is the upper table below: AGENCY: Environmental Protection Middle Run Formation, the Mt. Simon Agency. Sandstone, and the Eau Claire Maximum concentra- ACTION: Notice of final decision on Formation, at depths between 2,423 feet Chemical constituent tion at the petition. to 3,296 feet below ground level. The well head confining zone is the Knox Dolomite at (mg/L) SUMMARY: Notice is hereby given by the depths between 1,172 feet to 2,423 feet United States Environmental Protection below ground level. The confining zone Chromium ...... 1,200 Hexavalent Chromium ...... 1,200 Agency (EPA) that an exemption to the is separated from the lowermost land disposal restrictions under the Lead ...... 1,000 underground source of drinking water Nickel ...... 542 1984 Hazardous and Solid Waste (at a depth of 522 feet below ground Amendments (HSWA) to the Resource level) by a sequence of permeable and (6) The specific gravity of the injected Conservation and Recovery Act (RCRA) less permeable sedimentary rocks, waste stream must at all times range has been granted to AK Steel which provide additional protection from 1.00 to 1.30; Corporation (AK Steel) of Middletown, from fluid migration into drinking water (7) The volume of wastes injected in Ohio, for two Class I injection wells sources. any month through both wells at the site located in Middletown, Ohio. As EPA issued a draft decision, which must not exceed 2,629,800 gallons; required by 40 CFR part 148, AK Steel described the reasons for granting this (8) This exemption is approved for the has demonstrated, to a reasonable exemption in more detail, a fact sheet, 12-year modeled injection period, degree of certainty, that there will be no which summarized these reasons, and a which ends on October 1, 2017. AK migration of hazardous constituents out public notice on June 21, 2008, pursuant Steel may petition EPA for a reissuance of the injection zone or into an to 40 CFR 124.10. A public meeting was of the exemption beyond that date, underground source of drinking water subsequently held in Middletown on provided that EPA Region 5 receives a (USDW) for at least 10,000 years. This July 21, 2008. The public comment new and complete petition and no- final decision allows the continued period expired on August 5, 2008. EPA migration demonstration by April 1, underground injection by AK Steel of a received two comments on the proposed 2017. specific restricted waste, Waste Pickle exemption granted to AK Steel, neither (9) AK Steel must quarterly submit to Liquor, (code K062 under 40 CFR part of which bear on the validity of the no- EPA a report containing the fluid 261), into two Class I hazardous waste migration demonstration. Although the analyses of the injected waste which injection wells specifically identified as draft decision incorrectly referred to an must indicate the chemical and physical Waste Disposal Wells No. 1 and No. 2, injection rate of 90 gallons per minute, properties upon which the no-migration at the Middletown facility. This this final decision is based on the more petition was based, including the levels decision constitutes a final EPA action conservative injection rate that was used of those constituents listed in Condition 5 of this exemption approval; for which, except for the two parties to demonstrate no-migration. This value (10) AK Steel must annually submit to who commented on the draft decision, is 60 gallons per minute, combined for there is no Administrative Appeal. EPA a report containing the results of a both wells. EPA has determined that its bottom hole pressure survey (fall-off DATES: This action is effective as of reasons for granting the exemption as October 30, 2008. test) performed on either UIC Well No. set forth in the original draft decision 1 or UIC Well No. 2. The survey must FOR FURTHER INFORMATION CONTACT: remain valid. A final exemption is be performed after shutting in the well Leslie Patterson, Lead Petition therefore granted as proposed. for a period of time sufficient to allow Reviewer, EPA, Region V, telephone Conditions the pressure in the injection interval to (312) 886–4904. Copies of the petition reach equilibrium, in accordance with and all pertinent information relating This exemption is subject to the 40 CFR 146.68(e)(1). The annual report thereto are on file and are part of the following conditions. Non-compliance must include a comparison of reservoir Administrative Record. It is with any of these conditions is grounds parameters determined from the fall-off recommended that you contact the lead for termination of the exemption: test with parameters used in the reviewer prior to reviewing the (1) All regulatory requirements in 40 approved no-migration petition; and Administrative Record. CFR 148.24 are incorporated by (11) The petitioner must fully comply SUPPLEMENTARY INFORMATION: reference; with all requirements set forth in

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Underground Injection Control Permits near future, a limited number of CD– (3AP11), telephone (215) 814–2173; UIC 05–09–001–PTO–I and UIC 05–09– ROMs and hard copies of the executive e-mail [email protected]. 002–PTO–I issued by the Ohio summary will be available from EPA’s SUPPLEMENTARY INFORMATION: Environmental Protection Agency. Upon National Service Center for the expiration, cancellation, reissuance, Environmental Publications (NSCEP), I. How Can I Get Copies of This or modification of these permits by the P.O. Box 42419, Cincinnati, OH 45242; Document and Other Related Ohio Environmental Protection Agency, telephone: 1–800–490–9198; facsimile: Information? this exemption is subject to review. A 301–604–3408; e-mail: nscep@bps- Copies of the final order, the petition, new demonstration may be required if lmit.com. Please provide your name, the NJDEP letter seeking information shows that the basis for your mailing address, the title and the reconsideration, the Administrator’s granting the exemption is no longer EPA number of the requested letter denying the reconsideration, and valid under 40 CFR 148.23 and 148.24. publication. all pertinent information relating thereto are on file at the following location: Dated: October 7, 2008. FOR FURTHER INFORMATION CONTACT: The Information Management Team, Environmental Protection Agency, Timothy C. Henry, Region III, Air Protection Division Acting Director, Water Division, National Center for Environmental Assessment (8601P), U.S. (APD), 1650 Arch St., Philadelphia, EPA Region 5. Pennsylvania 19103. The Environmental Protection Agency, 1200 [FR Doc. E8–25909 Filed 10–29–08; 8:45 am] Administrator’s letter is also available Pennsylvania Avenue, NW., BILLING CODE 6560–50–P electronically at the following Web site: Washington, DC 20460. Telephone: http://www.epa.gov/region07/programs/ 703–347–8561; fax: 703–347–8691; e- artd/air/title5/petitiondb/ mail: [email protected]. ENVIRONMENTAL PROTECTION petitiondb.htm. AGENCY Dated: October 22, 2008. II. Background [FRL–8736–4] Rebecca Clark, Director, National Center for Environmental The Clean Air Act affords EPA a 45- Child-Specific Exposure Factors Assessment. day period to review and object to, as Handbook [FR Doc. E8–25908 Filed 10–29–08; 8:45 am] appropriate, operating permits proposed BILLING CODE 6560–50–P by state permitting authorities. Section AGENCY: Environmental Protection 505(b)(2) of the CAA authorizes any Agency (EPA). person to petition the EPA ACTION: Notice of availability. ENVIRONMENTAL PROTECTION Administrator within 60 days after the AGENCY expiration of this review period to SUMMARY: EPA is announcing the object to a state operating permit if EPA availability of a final report titled, [FRL–8736–7] has not done so. EPA received a petition ‘‘Child-Specific Exposure Factors from the NJDEP, dated July 21, 2006, Handbook’’ (EPA/600/R–06/096F), Clean Air Act Operating Permit Program; Decision on Reconsideration requesting that EPA object to the which was prepared by the National issuance of the proposed title V permit Center for Environmental Assessment of Petition to Object to Title V Permit for Reliant Portland Generating for the Reliant Portland Generating (NCEA) within EPA’s Office of Research Station. By Order dated June 20, 2007, and Development (ORD). This report Station, Upper Mount Bethel Township, Northampton County, PA the Administrator responded by updates a 2002 interim final version of denying NJDEP’s petition. On the handbook. It provides updated AGENCY: Environmental Protection September 14, 2007, the Attorney information on various physiological Agency (EPA). General of New Jersey, on behalf of and behavioral factors used in assessing ACTION: Notice of action denying NJDEP, simultaneously filed an appeal children’s exposure to environmental reconsideration of final order on of the Administrator’s Order in the contaminants. These factors include: petition to object to state operating United States Court of Appeals for the Water ingestion; soil ingestion and non- permit. Third Circuit and sent a letter to EPA dietary factors; inhalation rates; dermal seeking reconsideration of the factors including skin surface area and SUMMARY: Pursuant to the Clean Air Act Administrator’s Order. The Court of soil adherence factors; consumption of (CAA), the EPA Administrator signed an Appeals stayed the appeal until retail and home-grown foods; breast order, dated June 20, 2007, denying a September 26, 2008, to allow EPA an milk intake; body weight; activity petition to object to a state operating opportunity to respond to the motion for pattern data; and consumer product use. permit proposed to be issued by the reconsideration of the Order. By letter This updated version also provides Pennsylvania Department of dated September 24, 2008, the analysis of exposure factors data using Environmental Protection (PADEP) to Administrator responded by denying the age groups for children as Reliant Energy Mid-Atlantic Power reconsideration. The letter explains the recommended in the 2005 EPA Risk Holdings, LLC, for its Portland reasons for denying NJDEP’s request for Assessment Forum report document Generating Station in Northampton reconsideration. titled, ‘‘Guidance on Selecting Age County, Pennsylvania. On September Groups for Monitoring and Assessing 24, 2008, the Administrator signed a III. Judicial Review Childhood Exposures to Environmental letter denying the request of the Section 307(b)(1) of the Clean Air Act Contaminants’’ (71 FR 6775, February 9, petitioner, the New Jersey Department indicates which Federal Courts of 2006). of Environmental Protection (NJDEP), Appeals have venue for petitions for ADDRESSES: The document is available that EPA reconsider the June 20, 2007 review of final actions by EPA. For final electronically through the NCEA Web Order. actions which are not nationally site at http://www.epa.gov/ncea or you FOR FURTHER INFORMATION CONTACT: applicable, Section 307(b)(1) provides may access the document directly at Kathleen Anderson, Chief, Permits and that appeals shall be filed in the United http://cfpub.epa.gov/ncea/cfm/ Technical Assessment Branch, Air States Court of Appeals for the recordisplay.cfm?deid=199243. In the Protection Division, EPA Region III appropriate circuit. The denial of New

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Jersey’s motion for reconsideration of FOR FURTHER INFORMATION CONTACT: The Dated: October 22, 2008. the Administrator’s Order denying New Information Management Team, Rebecca Clark, Jersey’s request that EPA object to the National Center for Environmental Acting Director, National Center for issuance of a state operating permit to Assessment (8601P), U.S. Environmental Assessment. the Reliant Portland Generating Station Environmental Protection Agency,1200 [FR Doc. E8–25907 Filed 10–29–08; 8:45 am] is a final action which is not nationally Pennsylvania Avenue, NW., BILLING CODE 6560–50–P applicable. The Third Circuit Court of Washington, DC 20460. Telephone: Appeals is the appropriate court of 703–347–8561; fax: 703–347–8691; e- appeals. As noted above, New Jersey has mail: [email protected]. GENERAL SERVICES already filed an appeal of the ADMINISTRATION Administrator’s June 20, 2007 Order in SUPPLEMENTARY INFORMATION: To the U.S. Court of Appeals for the Third accomplish its mission to protect [OMB Control No. 3090–XXXX] human health and the environment, Circuit. Section 307(b)(1) also requires Information Collection; Management that any petition for review must be EPA must pay close attention to status and trends in the nation’s air, water, and Services Center (MSC) Customer filed within sixty (60) days from the Satisfaction E-Survey date that this Notice is published in the land, as well as related trends in human Federal Register. health and ecological systems. To help AGENCY: Management Services Center Dated: October 17, 2008. meet this need, EPA embarked on an (MSC), Federal Acquisition Service initiative in 2001 to assemble the most Donald S. Welsh, (FAS), General Services Administration reliable indicators of national (GSA). Regional Administrator, Region III. environmental and health conditions ACTION: Notice of request for comments [FR Doc. E8–25910 Filed 10–29–08; 8:45 am] that are important to EPA’s mission. regarding a new OMB clearance. BILLING CODE 6560–50–P EPA initially presented these indicators in its Draft Report on the Environment SUMMARY: Under the provisions of the Technical Document and its publicly Paperwork Reduction Act of 1995 (44 ENVIRONMENTAL PROTECTION U.S.C. Chapter 35), the General Services AGENCY oriented companion document, the Draft Report on the Environment, both Administration will be submitting to the released in 2003. Since then, EPA has Office of Management and Budget [FRL–8736–5] revised, updated, and refined the ROE (OMB) a request to review and approve a new information collection Electronic Report on the Environment in response to scientific developments and feedback from EPA’s Science requirement regarding to a Management AGENCY: Environmental Protection Advisory Board and other stakeholders. Services Center (MSC) Customer Agency (EPA). As a result, the EPA’s 2008 Report on Satisfaction E-Survey. Public comments are particularly ACTION: the Environment (EPA/600/R–07/045F), Notice of availability. invited on: Whether this collection of released May 20, 2008 (73 FR 29134), information is necessary and whether it SUMMARY: EPA is announcing the provides both an update and an availability of the electronic Report on will have practical utility; whether our improvement over the 2003 draft estimate of the public burden of this the Environment (eROE or ROE), an edition. In addition, EPA’s Office of online site that provides access to the collection of information is accurate and Environmental Information produced based on valid assumptions and environmental and human health the companion document, EPA’s 2008 information contained in the EPA’s methodology; and ways to enhance the Report on the Environment: Highlights quality, utility, and clarity of the 2008 Report on the Environment (EPA/ of National Trends (ROE Highlights), 600/R–07/045F), released May 20, 2008, information to be collected. released September 24, 2008, which DATES: Submit comments on or before: and in the EPA’s 2008 Report on the presents the key findings of the ROE in Environment: Highlights of National December 29, 2008. a format intended for the general public Trends, released September 24, 2008, in FOR FURTHER INFORMATION CONTACT: Ms. and without the technical detail. one location and in a searchable format. Geri Haworth, Director, Business The ROE asks important questions about In an effort to make the content of Management Division, Management the condition of our nation’s both ROE documents widely available, Services Center, Federal Acquisition environment and human health over EPA has created a dynamic Web site— Service, at telephone (253) 931–7064 or time and provides answers to those the electronic Report on the via e-mail to [email protected]. questions in the form of indicators. The Environment (eROE)—which has all the ADDRESSES: Submit comments regarding site also includes the methodology, ROE information in a searchable format. this burden estimate or any other aspect references, and sources of additional In addition to the indicator findings and of this collection of information, information behind the indicators that charts, it includes the methodology, including suggestions for reducing this form the foundation of the reports. references and sources of additional burden to the Regulatory Secretariat Indicators will be updated periodically information behind the indicators in the (VPR), General Services Administration, on the ROE Web site so the most up-to- report. The ROE Highlights document Room 4041, 1800 F Street, NW., date information on environmental and has an accompanying Web site with Washington, DC 20405. Please cite OMB human health condition is available to links to the ROE-wide site. Both reports Control No. 3090–XXXX, Management the public in a searchable format. The are available for download from the Services Center (MAS) Customer Web site was developed by EPA’s ROE front page and the online topics are Satisfaction E-Survey, in all National Center for Environmental linked together to make navigation correspondence. Assessment, within the Office of seamless. Furthermore, EPA plans to SUPPLEMENTARY INFORMATION: Research and Development, and the update indicator information online as Office of Environmental Information. new data become available so the public A. Purpose ADDRESSES: The Web site URL is has access to the most current The data collected from the http://www.epa.gov/roe. information. Management Services Center (MSC)

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Customer Satisfaction E-Survey will be Anniversary celebration and 21st Century committee members may be obtained from used to measure customer satisfaction Health Statistics update. Dale Hitchcock, lead staff for Populations and to identify areas where service to The times shown above are for the full Subcommittee, NCVHS, Office of the Federal agencies and industry requires Committee meeting. Subcommittee breakout Assistant Secretary for Planning and sessions can be scheduled for late in the Evaluation, Office of Science and Data improvement. afternoon of the first day and second day and Policy, 200 Independence Avenue, SW., B. Annual Reporting Burden in the morning prior to the full Committee Hubert Humphrey Building Room 440D, meeting on the second day. Agendas for these Washington, DC 20201, telephone (202) 690– Respondents: 400. breakout sessions will be posted on the 6796 or Marjorie S. Greenberg, Executive Responses Per Respondent: 1. NCVHS Web site (URL below) when Secretary, NCVHS, National Center for Hours Per Response: .05. available. Health Statistics, Centers for Disease Control Total Burden Hours: 20. Contact Person for More Information: and Prevention, 3311 Toledo Road, Room OBTAINING COPIES OF Substantive program information as well as 2402, Hyattsville, Maryland 20782, telephone PROPOSALS: Requesters may obtain a summaries of meetings and a roster of (301) 458–4245. Information also is available copy of the information collection committee members may be obtained from on the NCVHS home page of the HHS Web Marjorie S. Greenberg, Executive Secretary, site: http://www.ncvhs.hhs.gov/, where documents from the General Services NCVHS, National Center for Health Statistics, further information including an agenda will Administration, Regulatory Secretariat Centers for Disease Control and Prevention, be posted when available. (VPR), 1800 F Street, NW., Room 4041, 3311 Toledo Road, Room 2402, Hyattsville, Should you require reasonable Washington, DC 20405, telephone (202) Maryland 20782, telephone (301) 458–4245. accommodation, please contact the CDC 501–4755. Please cite OMB Control No. Information also is available on the NCVHS Office of Equal Employment Opportunity on 3090–XXXX, Management Services home page of the HHS Web site: http:// (301) 458–4EEO (4336) as soon as possible. www.ncvhs.hhs.gov/, where further Center (MSC) Customer Satisfaction E- Dated: October 23, 2008. Survey, in all correspondence. information including an agenda will be posted when available. James Scanlon, Dated: October 20, 2008. Should you require reasonable Deputy Assistant Secretary for Science and Casey Coleman, accommodation, please contact the CDC Data Policy, Office of the Assistant Secretary Chief Information Officer, General Services Office of Equal Employment Opportunity on for Planning and Evaluation. Administration. (301) 458–4EEO (4336) as soon as possible. [FR Doc. E8–25885 Filed 10–29–08; 8:45 am] [FR Doc. E8–25931 Filed 10–29–08; 8:45 am] Dated: October 20, 2008. BILLING CODE 4151–05–P BILLING CODE 6820–DH–S James Scanlon, Deputy Assistant Secretary for Science and Data Policy,Office of the Assistant Secretary, DEPARTMENT OF HEALTH AND HUMAN SERVICES DEPARTMENT OF HEALTH AND for Planning and Evaluation. [FR Doc. E8–25884 Filed 10–29–08; 8:45 am] HUMAN SERVICES Centers for Disease Control and BILLING CODE 4151–05–P Prevention National Committee on Vital and Health Statistics: Meeting [30Day–08–08BB] DEPARTMENT OF HEALTH AND Pursuant to the Federal Advisory HUMAN SERVICES Agency Forms Undergoing Paperwork Committee Act, the Department of Reduction Act Review Health and Human Services (DHHS) National Committee on Vital and Health announces the following advisory Statistics: Meeting The Centers for Disease Control and committee meeting. Prevention (CDC) publishes a list of Pursuant to the Federal Advisory information collection requests under Name: National Committee on Vital and Committee Act, the Department of review by the Office of Management and Health Statistics (NCVHS), Full Committee Health and Human Services (DHHS) Meeting. Budget (OMB) in compliance with the Time and Date: November 18, 2008 announces the following advisory Paperwork Reduction Act (44 U.S.C. 9 a.m.–3 p.m. November 19, 2008 committee meeting. Chapter 35). To request a copy of these 10 a.m.–12 p.m. Name: National Committee on Vital and requests, call the CDC Reports Clearance Place: Radisson Hotel Reagan National Health Statistics (NCVHS), Subcommittee on Officer at (404) 639–5960 or send an e- Airport, 2020 Jefferson Davis Hwy., Populations Meeting. mail to Arlington, VA 22202. Time and Date: November 19, 2008 [email protected]. Send written comments Status: Open. 1 p.m.–5:30 p.m. to CDC Desk Officer, Office of Purpose: At this meeting the Committee Place: Hubert H. Humphrey Building, 200 Management and Budget, Washington, will hear presentations and hold discussions Independence Avenue, SW., Room 305A, on several health data policy topics. On the Washington, DC 20201. DC or by fax to (202) 395–6974. Written morning of the first day the Committee will Status: Open. comments should be received within 30 hear updates from the Department from the Purpose: The Populations Subcommittee days of this notice. HHS Data Council, the Centers for Medicare will hear testimony from invited experts on Proposed Project and Medicaid Services, and the NCVHS Federal data capacity to support health Executive Subcommittee. In the afternoon policy in areas relating to health insurance; Health Hazard Evaluation Program there will be a speaker on Clinical and including coverage, under-insurance, access Customer Survey—New—The National Translational Science Awards (CTSA) from to insurance coverage, and costs. The Institute for Occupational Safety and the National Institutes of Health and an Subcommittee will also hear about the Health (NIOSH), Centers for Disease update from the Office of the National capability of federal data systems to monitor Control and Prevention (CDC). Coordinator regarding the American Health the effects of economic downturns on health Information Community (AHIC) advisory insurance coverage and on health care Background and Brief Description body. expenditures. The hearing will conclude On the morning of the second day the with a roundtable discussion between the The Health Hazard Evaluation Committee will discuss subcommittee work. Subcommittee and speakers. Program (HHE) was mandated by There will also be an update from NCHS Contact Person for More Information: specific provision of the Occupational Board of Scientific Counselors. In addition, Substantive program information as well as Safety and Health Act of 1970 and the there will be a discussion of the NCVHS 60th summaries of meetings and a roster of Federal Mine Safety Act of 1977.

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Through the HHE Program, NIOSH survey of potential customers in the health concerns of those surveyed. This responds to requests to identify Food and Beverage Manufacturing or will be followed by qualitative research chemical, biological or physical hazards Services to Buildings and Dwellings (focus groups) to determine (1) what in workplaces throughout the United industry who are responsible for concepts are most effective at raising States. An HHE Program evaluation can workplace health and safety. The goals awareness of the HHE Program with be requested by employers, employees, of the survey are to determine: (1) What consumers, and (2) what messages employee representatives, other federal percentage of customers are familiar should be used to inform customers agencies, and state and local agencies. with the HHE Program; (2) how about the HHE Program. The results NIOSH proposes conducting a program customers surveyed prefer to receive from both phases of this research will be of quantitative and qualitative research occupational safety and health-related used to design and refine a targeted to help ensure that the HHE Program is information, (3) what occupational marketing campaign before materials are responsive to the needs of its customers safety and health communication promoted and distributed nationally. and enhances the diversity of products are most useful to customers Each phase will be conducted over a workplaces and hazards assessed. The surveyed; (4) what barriers prevent information from this research will be customers surveyed from using HHE two to three month period. used to develop a targeted marketing Program resources; (5) what would There will be no cost to the campaign to increase awareness of and motivate customers surveyed to use respondents other than their time. The access to HHE Program services. To HHE Program resources; and (6) what total estimated annualized burden hours begin, NIOSH will conduct a Web based are the top occupational safety and are 1,880.

ESTIMATED ANNUALIZED BURDEN HOURS

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

Customer Survey Pretest Respondent ...... 32 1 15/60 Customer Survey Respondent ...... 5,760 1 15/60 Customer Focus Group Screener Respondent ...... 216 1 15/60 Customer Focus Group Concept Testing Respondent ...... 108 1 2 Customer Focus Group Material Testing Respondent ...... 108 1 1 .5

Dated: October 24, 2008. for the fiscal year (FY) 2010 inpatient Deadline for Submission of Written Maryam I. Daneshvar, prospective payment systems (IPPS) and Comments or Statements: Written Acting Reports Clearance Officer, Centers for calendar year (CY) 2010 outpatient comments may be sent electronically to Disease Control and Prevention. prospective payment system (OPPS) the address specified in the ADDRESSES [FR Doc. E8–25897 Filed 10–29–08; 8:45 am] rulemaking processes. Hospitals, section of this notice and must be BILLING CODE 4163–18–P hospital associations, representatives of received by 5 p.m. e.s.t. on Wednesday, consumer purchasers, payors of health December 31, 2008. care services, and other interested ADDRESSES: Meeting Location: The DEPARTMENT OF HEALTH AND parties are invited to attend and make meeting will be held in the main HUMAN SERVICES comments in person or in writing. It auditorium of the Central Building of will also be possible to listen to the the Centers for Medicare & Medicaid Centers for Medicare & Medicaid session by teleconference. Verbal Services, 7500 Security Boulevard, Services comments will be taken from telephone Baltimore, MD 21244–1850. [CMS–1422–N] participants as time permits. This meeting is open to the public, but Registration and Special Medicare Program; Listening Session registration is required. Further Accommodations: Persons interested in on Hospital-Acquired Conditions in information regarding this listening attending the meeting or listening by Inpatient Settings and Hospital session will be posted on the HAC teleconference must register by Outpatient Healthcare-Associated section of the CMS Web site at http:// completing the on-line registration at Conditions in Outpatient Settings, www.cms.hhs.gov/HospitalAcqCond/ http://registration.intercall.com/go/ December 18, 2008 01_Overview.asp and the OPPS section cms2. Individuals who need special of the CMS Web site at http:// accommodations should contact Karen AGENCY: Centers for Medicare & www.cms.hhs.gov/ Jackson via phone on (410) 786–0079 or Medicaid Services (CMS) and Centers hospitaloutpatientpps/. via e-mail at [email protected]. for Disease Control and Prevention Written Comments or Statements: (CDC), HHS. DATES: Meeting Date: The listening session will be held on Thursday, Written comments may be sent by e- ACTION: Notice of meeting. December 18, 2008 from 10 a.m. e.s.t. mail to [email protected] or via mail to Karen Jackson, Centers for Medicare SUMMARY: This notice announces a until 5 p.m. e.s.t. & Medicaid Services, Mailstop C5–15– listening session being conducted by the Deadline for Meeting Registration and 02, 7500 Security Boulevard, Baltimore, Centers for Medicare & Medicaid Submitting Requests for Special MD 21244–1850. Services and Centers for Disease Control Accommodations Registration must be and Prevention to solicit informal completed no later than 5 p.m. e.s.t. FOR FURTHER INFORMATION CONTACT: comments on hospital-acquired Thursday, December 11, 2008. Requests Karen Jackson, (410) 786–0079 or via conditions (HACs) and hospital for special accommodations must be e-mail at [email protected]. Press outpatient healthcare-associated received no later than 5 p.m. e.s.t. inquiries are handled through the CMS conditions (HOP–HACs) in preparation Thursday, December 11, 2008. Press Office at 202–690–6145.

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I. Background There will be a lunch break from • Interior and exterior inspection of Section 1886(d)(4)(D) of the Social approximately 12:30 p.m. e.s.t. to 1:30 vehicles (this includes engine and trunk Security Act (the Act) requires the p.m. e.s.t. Following lunch, we will inspection) at the entrance to the Secretary to select, by October 1, 2007, review the CY 2009 OPPS final rule that grounds. Parking permits and at least two conditions that: (1) Are high discussed the expansion of the instructions will be issued after the principles behind the HOP–HACs vehicle inspection. cost or high volume or both; (2) result • in the assignment of a case to a payment provision to the outpatient Passing through a metal detector Medicare Severity Diagnosis-Related setting. An additional public comment and inspection of items brought into the Group (MS–DRG) that has a higher period will follow the afternoon building. We note that all items brought payment when present as a secondary presentations. The meeting will to CMS, whether personal or for the diagnosis; and (3) could reasonably have conclude by 5 p.m. e.s.t. purpose of demonstration or to support We note that, due to time constraints, been prevented through the application a demonstration, are subject to telephone participants will be allowed of evidence-based guidelines. inspection. For discharges occurring on or after to make verbal comments during the We cannot assume responsibility for October 1, 2008, hospitals will not meeting as time permits. We also note coordinating the receipt, transfer, receive additional payment for cases in that any interested party, irrespective of transport, storage, set-up, safety, or which one of the selected conditions participation at the listening session, timely arrival of any personal occurring during hospitalization was may submit written comments to the belongings or items used for not present on admission. That is, the address listed in the ADDRESSES section demonstration or to support a DATES case would be paid as though the by the date specified in the demonstration. section of this notice. secondary diagnosis was not present. Note: Individuals who are not registered in Section 1886(d)(4)(D) of the Act III. Registration Instructions advance will not be permitted to enter the provides that we can revise the list of building and will be unable to attend the For security reasons, space meeting. The public may not enter the conditions from time to time, as long as limitations, and limited availability of it contains at least two conditions. building earlier than 45 minutes prior to the teleconference lines, any persons convening of the meeting. We have discussed the selection of wishing to attend this meeting or listen hospital-acquired conditions (HAC) in via teleconference must register by the All visitors must be escorted in areas other than the lower and first floor the inpatient prospective payment date listed in the DATES section of this systems (IPPS) fiscal year (FY) 2007 (71 notice. Persons interested in attending levels in the Central Building. Seating FR 23996 and 71 FR 47870), FY 2008 the meeting or listening by capacity is limited to the first 550 (72 FR 24680 and 72 FR 47130), and FY teleconference must register by registrants. 2009 (73 FR 23528 and 73 FR 48434) completing the on-line registration Authority: Section 1886(d)(4)(D) of the Act. proposed and final rules, respectively. located at http:// Dated: October 23, 2008. For discharges occurring on or after registration.intercall.com/go/cms2. The October 1, 2008, hospitals will not Kerry Weems, on-line registration system will generate Acting Administrator, Centers for Medicare receive additional payment for cases in a confirmation page to indicate the which one of the selected conditions & Medicaid Services. completion of your registration. Please [FR Doc. E8–25833 Filed 10–29–08; 8:45 am] occurring during hospitalization was print this page as your registration BILLING CODE 4120–01–P not present on admission. That is, the receipt. case would be paid as though the The number of call-in lines will be secondary diagnosis was not present. limited for individuals participating in Section 1886(d)(4)(D) of the Act DEPARTMENT OF HEALTH AND the listening session by teleconference. HUMAN SERVICES provides that we can revise the list of The call-in number will be provided conditions from time to time, as long as upon confirmation of registration. Administration for Children and it contains at least two conditions. In An audio download of the listening Families addition, we discussed the expansion of session will be available through the the principles behind the hospital CMS Hospital-Acquired Conditions Web Notice of Allotment Percentages to outpatient healthcare-associated site at http://www.cms.hhs.gov/ States for Child Welfare Services State conditions (HOP–HACs) payment HospitalAcqCond/01_Overview.asp after Grants provision in the outpatient prospective the listening session. payment systems (OPPS) calendar year AGENCY: Administration on Children, (CY) 2009 proposed rule (73 FR 41416). IV. Security, Building, and Parking Youth and Families, Administration for Guidelines Children and Families, Department of II. Listening Session Format This meeting will be held in a Federal Health and Human Services. This listening session is being held as government building; therefore, Federal ACTION: Biennial publication of a joint partnership between the Centers security measures are applicable. In allotment percentages for States under for Medicare and Medicaid Services planning your arrival time, we the Title IV–B subpart 1, Child Welfare (CMS) and the Centers for Disease recommend allowing additional time to Services State Grants Program (CFDA Control and Prevention (CDC). The clear security. The on-site check-in for No. 93.645). listening session will begin at 10 a.m. visitors will begin at 9:15 a.m. e.s.t. e.s.t. with an overview of the objectives Please allow sufficient time to complete SUMMARY: As required by section 423(c) for the session. A brief overview security checkpoints. of the Social Security Act (42 U.S.C. regarding the implementation strategy Security measures include the 623(c)), the Department is publishing for selecting the IPPS HAC’s will then following: the allotment percentage for each State be presented. Next, we will present a • Presentation of government-issued under the Title IV–B Subpart 1, Child review of the regulatory language photographic identification to the Welfare Services State Grants Program. included in the FY 2009 IPPS final rule Federal Protective Service or Guard Under section 423(a), the allotment followed by a public comment session. Service personnel. percentages are one of the factors used

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in the computation of the Federal grants Allotment the treatment of FASD. The FASD awarded under the Program. State percentage Center’s activities include providing DATES: Effective Date: The allotment training, technical assistance, and Wisconsin ...... 52.98 subcontracts to increase the use of percentages shall be effective for Fiscal Wyoming ...... 41.29 Years 2010 and 2011. effective evidence-based interventions. American Samoa ...... 70.00 The FASD Center will be integrating FOR FURTHER INFORMATION CONTACT: Guam ...... 70.00 Screening and Brief Intervention (SBI) Deborah Bell, Grants Fiscal Management N. Mariana Islands ...... 70.00 for pregnant women through service Specialist, Office of Grants Puerto Rico ...... 70.00 delivery organizations and will be Management, Office of Administration, Virgin Islands ...... 70.00 evaluating the results. Seven sites will Administration for Children and implement the SBI program operated Families, telephone (202) 401–4611. Dated: October 21, 2008. through WIC or Healthy/Health Start. Joan E. Ohl, SUPPLEMENTARY INFORMATION: The Using the protocol developed by allotment percentage for each State is Commissioner, Administration on Children, O’Connor and Whaley, each of the determined on the basis of paragraphs Youth and Families. participating WIC and Healthy Start (b) and (c) of section 423 of the Act. [FR Doc. E8–25843 Filed 10–29–08; 8:45 am] programs will be screening pregnant These figures are available on the ACF BILLING CODE 4184–01–P women to identify those who are homepage on the Internet: http:// currently drinking. The SBI focuses on www.acf.dhhs.gov/programs/cb/. The 10- to 15-minute sessions of counseling DEPARTMENT OF HEALTH AND allotment percentage for each State is as by a counselor who will use a scripted follows: HUMAN SERVICES manual to guide the intervention. Substance Abuse and Mental Health Participants in the SBI will be assessed Allotment at each visit (to monitor alcohol use), State percentage Services Administration referred for additional services to Alabama ...... 57.84 Agency Information Collection support their efforts to stop drinking, Alaska ...... 48.05 Activities: Proposed Collection; and will be provided with the 10–15 Arizona ...... 56.38 Comment Request minute intervention. Clients will be Arkansas ...... 61.11 followed up until their 36th week of California ...... 46.00 In compliance with Section pregnancy. Colorado ...... 45.84 3506(c)(2)(A) of the Paperwork At baseline, a screening tool will be Connecticut ...... 29.80 Reduction Act of 1995 concerning administered by the WIC or Healthy/ Delaware ...... 47.41 opportunity for public comment on Health Start counselor to assess District of Columbia ...... 30.00 proposed collections of information, the pregnant women at the participating Florida ...... 49.99 Substance Abuse and Mental Health Georgia ...... 55.97 sites or health care delivery programs. Hawaii ...... 49.58 Services Administration (SAMHSA) Women will be assessed for risk using Idaho ...... 58.77 will publish periodic summaries of the T–ACE or TWEAK screening Illinois ...... 47.38 proposed projects. To request more instruments which have been used Indiana ...... 56.49 information on the proposed projects or successfully with pregnant women. Iowa ...... 54.98 to obtain a copy of the information Both quantity and frequency of drinking Kansas ...... 53.08 collection plans, call the SAMHSA will be assessed. In addition, basic Kentucky ...... 59.84 Reports Clearance Officer on (240) 276– demographic data will be collected (age, Louisiana ...... 57.58 1243. race/ethnicity, education, and marital Maine ...... 55.90 Comments are invited on: (a) Whether status) at baseline by participating sites Maryland ...... 39.77 the proposed collections of information Massachusetts ...... 36.86 but no personal identification Michigan ...... 54.78 are necessary for the proper information will be transmitted to Minnesota ...... 46.78 performance of the functions of the SAMHSA. Mississippi ...... 63.23 agency, including whether the On a monthly basis, as clients return Missouri ...... 55.60 information shall have practical utility; for their WIC or Healthy/Health Start Montana ...... 57.46 (b) the accuracy of the agency’s estimate program counseling session, follow-up Nebraska ...... 53.19 of the burden of the proposed collection data will be collected by the WIC or Nevada ...... 47.38 of information; (c) ways to enhance the Healthy Start counselor. At each New Hampshire ...... 46.11 quality, utility, and clarity of the monthly follow-up visit, the quantity New Jersey ...... 36.67 information to be collected; and (d) and frequency of drinking will be New Mexico ...... 60.11 assessed and the client’s goals for New York ...... 40.20 ways to minimize the burden of the North Carolina ...... 55.99 collection of information on drinking will be recorded. In addition, North Dakota ...... 54.67 respondents, including through the use process level variables will be assessed Ohio ...... 54.92 of automated collection techniques or to understand how the program is being Oklahoma ...... 55.55 other forms of information technology. implemented (e.g., whether SBI was Oregon ...... 54.50 delivered; what referrals were made; Pennsylvania ...... 49.89 Proposed Project: SAMHSA Fetal which referral services were received). Rhode Island ...... 48.70 Alcohol Spectrum Disorders Center for At the 36th week of pregnancy, the South Carolina ...... 59.40 Excellence Screening and Brief client will be asked for permission to South Dakota ...... 54.49 Intervention Evaluation—New place her record from this program into Tennessee ...... 56.26 Since 2001, SAMHSA’s Center for Texas ...... 52.11 her infant’s medical record (upon Utah ...... 60.33 Substance Abuse Prevention has been delivery) and quantity and frequency of Vermont ...... 52.12 operating the SAMHSA Fetal Alcohol drinking will be assessed. Virginia ...... 45.62 Spectrum Disorders (FASD) Center for The data collection is designed to Washington ...... 47.36 Excellence. The purpose of the FASD evaluate the implementation of the West Virginia ...... 62.02 Center is to prevent FASD and improve proposed Screening and Brief

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Intervention by measuring whether process measures to assess whether and abstinence from alcohol is achieved. how the intervention was provided. Furthermore, the project will include

ESTIMATED ANNUALIZED BURDEN HOURS

Number of Number of Average Total burden Screening tool/activity respondents responses per burden per hours per (7 Sites) respondent response collection

Assessment/Baseline Data Collection ...... 3,428 1 .25 857 Monthly Follow-up (75% of baseline × 4 months maximum) ...... 2,571 4 .33 3,393 Assessment Data Collection at 36th week (75% of baseline) ...... 2,571 1 .25 642

Total ...... 8,570 6 ...... 4,892

Send comments to Summer King, Proposed Project: Training and questions about participants’ SAMHSA Reports Clearance Officer, Technical Assistance in the Fetal demographic background and Room 7–1044, One Choke Cherry Road, Alcohol Spectrum Disorders (FASD) professional affiliation. Participant Rockville, MD 20857. Written comments Center for Excellence—New evaluation forms will be administered should be received within 60 days of immediately following a training event Since 2001, the Fetal Alcohol this notice. in order to assess customer satisfaction. Spectrum Disorders (FASD) Center for The post-event evaluation form consists Dated: October 23, 2008. Excellence has been operating under of a brief 2 page questionnaire that asks Elaine Parry, contract to SAMHSA’s Center for participants to rate the speaker, identify Acting Director, Office of Program Services. Substance Abuse Prevention. The the most and least helpful features of purpose of the FASD Center for [FR Doc. E8–25898 Filed 10–29–08; 8:45 am] the presentation, and assess their Excellence is to prevent FASD and BILLING CODE 4162–20–P satisfaction with the services provided. improve the treatment of FASD. As a A paper-and-pencil format will be cornerstone of the services delivered by utilized to collect participant responses, DEPARTMENT OF HEALTH AND the FASD Center for Excellence, although a link to an online survey may HUMAN SERVICES targeted training, technical assistance, be provided at the conclusion of a and consultation is provided in order to Webinar or other online presentation. Substance Abuse and Mental Health significantly improve immediate, Services Administration Follow-up will occur both 3 and 6 intermediate, and long-term outcomes months after the training either through in the prevention and treatment of Agency Information Collection a brief online survey or a telephone Activities: Proposed Collection; FASD. interview. Non-respondents will receive Comment Request The purpose of this submission is to one follow up reminder e-mail. obtain approval for the use of customer In compliance with Section satisfaction feedback forms to be used Informational Meetings 3506(c)(2)(A) of the Paperwork by FASD Center for Excellence to Informational meetings that involve Reduction Act of 1995 concerning monitor the delivery and quality of field trainers, who deliver the majority opportunity for public comment on technical assistance, training, and of the Center’s FASD trainings, will proposed collections of information, the consultation services. Based on utilize a pre- and post-test methodology Substance Abuse and Mental Health estimates derived from a review of the to assess changes in knowledge. In Services Administration (SAMHSA) services provided in the first 5 years of addition, pre-test forms will also gather will publish periodic summaries of operation, the FASD Center for information about field trainers’ cultural proposed projects. To request more Excellence expects to conduct background, professional setting, and information on the proposed projects or approximately 240 trainings, 5 number of years of experience in the to obtain a copy of the information informational meetings, and 150 field. Post-test questionnaires will collection plans, call the SAMHSA technical assistance events over the evaluate both knowledge and customer Reports Clearance Officer on (240) 276– course of their contract with SAMHSA. satisfaction immediately following 1243. Presentations are available nationwide informational meetings. Follow up Comments are invited on: (a) Whether and can vary in topic and length occurs both at 6 and 12 months after the the proposed collections of information depending on audience characteristics meeting through either a brief online are necessary for the proper and presentation setting. Data collection survey or a telephone interview. Non- performance of the functions of the protocols will vary slightly for different respondents will receive one follow up agency, including whether the types of services and are presented reminder e-mail. information shall have practical utility; separately for trainings, meetings, and No pre-test forms will be used for (b) the accuracy of the agency’s estimate technical assistance services. informational meetings that do not of the burden of the proposed collection involve field trainers. Meeting feedback of information; (c) ways to enhance the Trainings surveys will be administered quality, utility, and clarity of the In keeping with theories of behavior immediately following informational information to be collected; and (d) change, changes in knowledge about meetings, and will both assess customer ways to minimize the burden of the FASD (for general trainings) and about satisfaction and gather background collection of information on topic-specific FASD issues (for information about participant respondents, including through the use advanced trainings) will be measured demographics and professional of automated collection techniques or using a pre- and post-test methodology. affiliation. No long-term follow up other forms of information technology. The pre-test form will also include activity is anticipated for informational

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meetings that do not involve field events: trainings, TA, and informational weaknesses in current service trainers. meetings. Rigorous efforts will be made provisions and to make improvements Technical Assistance to maintain participant confidentiality that are practical and feasible. Several of across all presentation settings. the customer satisfaction surveys Feedback forms will be used to Participation in data collection is expected to be implemented under this evaluate customer satisfaction voluntary and no identifying approval will provide data for immediately following technical information (name, social security measurement of program effectiveness assistance services. Follow-up will number, etc.) will be collected from any under the Government Performance and occur both at 6 and 12 months after the participant. Unique identification codes TA. Results Act (GPRA). Information from will be used to match pre-assessment, these customer surveys will be used to All Events post-assessment, and follow up plan and redirect resources and efforts Feedback will also be solicited from evaluation forms in order to track client to improve or maintain a high quality of the event requestor (the administrative data over time. service to service providers, individuals contact in the requesting organization) The primary use for information with an FASD and their families, and to assess the administration of all gathered is to identify strengths and members of the public.

ESTIMATED ANNUALIZED BURDEN HOURS

Number of Average hours Total burden Instrument/activity Number of responses per of burden per hours per respondents respondent response collection

Trainings: FASD Event Pre-Test Form ...... 1,200 1 .083 100 FASD Event Post-Test Form ...... 1,200 1 .067 80 FASD Event Feedback Form ...... 1,200 1 .17 204 FASD Training Feedback Survey (3- and 6-month follow-up) ...... 600 2 .067 80 Meetings (Field Trainers): Pre-Meeting Form (Field Trainers) ...... 25 1 .12 3 Post-Meeting Form (Field Trainers) ...... 25 1 .17 4 FASD Meeting Follow-Up Feedback Survey (6- and 12-month follow- up) ...... 12 2 .067 2 Meetings (Other meetings): Meeting Feedback Form ...... 75 1 .083 6 Technical Assistance: Technical Assistance Feedback Form ...... 375 1 .083 31 Technical Assistance Follow-Up Feedback Survey (6- and 12-month follow-up) ...... 188 2 .067 25 All Events (Trainings, Meetings, TA): Event Requestor Form ...... 100 1 .067 7

Total ...... 5,000 ...... 542

Send comments to Summer King, information collection requests under integrated substance abuse (SA) and SAMHSA Reports Clearance Officer, OMB review, in compliance with the HIV prevention services by providing Room 71–1044, One Choke Cherry Paperwork Reduction Act (44 U.S.C. supportive services and strengthening Road, Rockville, MD 20857. Written Chapter 35). To request a copy of these linkages between service providers for comments should be received within 60 documents, call the SAMHSA Reports at-risk minority populations. The HIV days of this notice. Clearance Officer on (240) 276–1243. Cohort 1–3 grants previously received OMB clearance No. 0930–0208. Dated: October 23, 2008. Project: Cross-Site Evaluation of the Elaine Parry, Minority Substance Abuse/HIV/ The current HIV Cohort 6 Minority Acting Director, Office of Program Services. Hepatitis Prevention Program—NEW SA/HIV/Hepatitis Prevention Program [FR Doc. E8–25899 Filed 10–29–08; 8:45 am] funded 81 5-year grants in FY 2005 to The cross-site evaluation builds on community based organizations that are BILLING CODE 4162–20–P five previous grant programs funded by required to address the SAMHSA SAMHSA’s Center for Substance Abuse Strategic Prevention Framework (SPF) DEPARTMENT OF HEALTH AND Prevention (CSAP) to provide HIV and participate in this cross-site HUMAN SERVICES prevention services for minority evaluation. The grantees are expected to populations The first two were planning provide leadership and coordination on Substance Abuse and Mental Health grant programs and the last three were the planning and implementation of the Services Administration service grant programs. HIV Cohort 1 SPF that targets minority populations and HIV Cohort 2 funded 2-year and the minority reentry population in Agency Information Collection planning grants in FY 2000 and FY 2001 communities of color with high Activities: Submission for OMB respectively. HIV Cohort 3 funded 48 3- prevalence of SA, HIV/AIDS, and Review; Comment Request year grants in FY 2002, HIV Cohort 4 hepatitis. The primary objectives of the funded 22 5-year grants in FY 2003, and cross-site evaluation are to: (1) Assess Periodically, the Substance Abuse and HIV Cohort 5 funded 46 4-year grants in the process of adopting and Mental Health Services Administration FY 2004. The goals for the Cohort 3–5 implementing the SPF with the target (SAMHSA) will publish a summary of grants were to add, increase, or enhance populations; (2) measure the

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effectiveness of specified intervention SAMHSA/CSAP in promoting and 135 questions, of which 102 relate to strategies such as cultural enrichment disseminating optimally effective HIV and hepatitis. activities, educational and vocational prevention programs. Sample size, respondent burden, and services, and/or computer-based Grantees must also conduct ongoing intrusiveness have been minimized to curricula; and (3) determine the success monitoring and evaluation of their be consistent with the cross-site of the program in delaying, preventing, projects to assess program effectiveness objectives. Procedures are employed to and/or reducing the use of alcohol, safeguard the privacy and including Federal reporting of the tobacco, and other drugs (ATOD) among confidentiality of participants. Every Government Performance and Results the target populations. The grantees are effort has been made to coordinate Act (GPRA) of 1993, the Performance expected to provide an effective cross-site data collection with local data prevention process, direction, and a Assessment Rating Tool (PART), collection efforts in an attempt to common set of goals, expectations, and SAMHSA/CSAP National Outcome minimize respondent burden. accountabilities to be adapted and Measures (NOMs), and HIV counseling The cross-site evaluation results will integrated at the community level. and testing. All of this information will have significant implications for the While the grantees have substantial be collected through self-report substance abuse, HIV/AIDS and flexibility in choosing their individual questionnaires administered to program hepatitis prevention fields, the evidence-based programs, they are all participants. All grantees will use two allocation of grant funds, and other required to base them on the five steps instruments, one for youth between the evaluation activities conducted by of the SPF to build service capacity ages of 12 and 17, and one for adults 18 multiple Federal, State, and local specific to SA, HIV, and hepatitis and older. These instruments include government agencies. They will be used prevention services. In FY 2006, all the baseline, exit and 3–6 month follow-up to develop Federal policy in support of grantees initiated Steps 1–3 of the SPF, (post-exit) questionnaires related to SAMHSA/CSAP program initiatives, namely conducting a needs assessment, GPRA and NOMs augmented by inform the public of lessons learned and building capacity, and planning how to questions pertaining to HIV and findings, improve existing programs, implement their projects. Once their hepatitis. While the GPRA and NOMs and promote replication and plans have been approved by their measures have already been approved dissemination of effective prevention Government Project Officers they can by OMB (OMB No. 0930–0230), the strategies. precede onto Step 4 (implementation) remaining HIV and hepatitis-related The following table shows the and Step 5 (evaluation). Conducting this questions have not, hence this data estimated annualized burden for data cross-site evaluation will assist collection. Each questionnaire contains collection.

Average Number of Number of Number of burden/ Total burden respondents respondents respondents response hours at baseline at exit at follow-up (hrs.)

Total of Adults and Youth ...... 9,000 6,750 4,455 0.83 16,770

Written comments and DEPARTMENT OF HOMELAND the Robert T. Stafford Disaster Relief recommendations concerning the SECURITY and Emergency Assistance Act, 42 proposed information collection should U.S.C. 5121–5207 (the Stafford Act), as be sent by December 1, 2008 to: Federal Emergency Management follows: Agency SAMHSA Desk Officer, Human I have determined that the damage in Resources and Housing Branch, Office [FEMA–1802–DR] certain areas of the Commonwealth of of Management and Budget, New Kentucky resulting from a severe wind storm Executive Office Building, Room 10235, Kentucky; Major Disaster and Related associated with Tropical Depression Ike, is of Washington, DC 20503. Due to potential Determinations sufficient severity and magnitude to warrant a major disaster declaration under the Robert delays in OMB’s receipt and processing AGENCY: Federal Emergency T. Stafford Disaster Relief and Emergency of mail sent through the U.S. Postal Management Agency, DHS. Assistance Act, 42 U.S.C. 5121–5207 (the Service, respondents are encouraged to ACTION: Notice. Stafford Act). Therefore, I declare that such submit comments by fax to: 202–395– a major disaster exists in the Commonwealth 6974. SUMMARY: This is a notice of the of Kentucky. Presidential declaration of a major In order to provide Federal assistance, you Dated; October 23, 2008. disaster for the Commonwealth of are hereby authorized to allocate from funds Elaine Parry, Kentucky (FEMA–1802–DR), dated available for these purposes such amounts as Acting Director, Office of Program Services. October 9, 2008, and related you find necessary for Federal disaster [FR Doc. E8–25900 Filed 10–29–08; 8:45 am] determinations. assistance and administrative expenses. You are authorized to provide Public BILLING CODE 4162–20–P DATES: Effective Date: October 9, 2008. Assistance in the designated areas, Hazard FOR FURTHER INFORMATION CONTACT: Mitigation throughout the Commonwealth, Peggy Miller, Disaster Assistance and any other forms of assistance under the Directorate, Federal Emergency Stafford Act that you deem appropriate. Management Agency, 500 C Street, SW., Consistent with the requirement that Federal Washington, DC 20472, (202) 646–3886. assistance be supplemental, any Federal funds provided under the Stafford Act for SUPPLEMENTARY INFORMATION: Notice is Hazard Mitigation will be limited to 75 hereby given that, in a letter dated percent of the total eligible costs. Federal October 9, 2008, the President declared funds provided under the Stafford Act for a major disaster under the authority of Public Assistance also will be limited to 75

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percent of the total eligible costs, except for DEPARTMENT OF HOMELAND Further, you are authorized to make any particular projects that are eligible for a SECURITY changes to this declaration to the extent higher Federal cost-sharing percentage under allowable under the Stafford Act. the FEMA Public Assistance Pilot Program Federal Emergency Management The Federal Emergency Management instituted pursuant to 6 U.S.C. 777. If Other Agency Agency (FEMA) hereby gives notice that Needs Assistance under Section 408 of the pursuant to the authority vested in the Stafford Act is later requested and warranted, [FEMA–1803–DR] Administrator, under Executive Order Federal funding under that program also will 12148, as amended, Justin A. be limited to 75 percent of the total eligible Oklahoma; Major Disaster and Related Determinations Dombrowski, of FEMA is appointed to costs. act as the Federal Coordinating Officer Further, you are authorized to make AGENCY: Federal Emergency for this declared disaster. changes to this declaration to the extent Management Agency, DHS. The following areas of the State of allowable under the Stafford Act. ACTION: Notice. Oklahoma have been designated as adversely affected by this declared The Federal Emergency Management SUMMARY: major disaster: Agency (FEMA) hereby gives notice that This is a notice of the Presidential declaration of a major pursuant to the authority vested in the Alfalfa, Cimarron, Dewey, Ellis, Grant, disaster for the State of Oklahoma Administrator, under Executive Order Harper, Kay, Major, Woods, and Woodward (FEMA–1803–DR), dated October 9, Counties for Public Assistance. 12148, as amended, Kim R. Kadesch, of 2008, and related determinations. All counties within the State of Oklahoma FEMA is appointed to act as the Federal are eligible to apply for assistance under the DATES: Effective Date: October 9, 2008. Coordinating Officer for this declared Hazard Mitigation Grant Program. disaster. FOR FURTHER INFORMATION CONTACT: The following Catalog of Federal Domestic Peggy Miller, Disaster Assistance The following areas of the Assistance Numbers (CFDA) are to be used Directorate, Federal Emergency for reporting and drawing funds: 97.030, Commonwealth of Kentucky have been Management Agency, 500 C Street, SW., Community Disaster Loans; 97.031, Cora designated as adversely affected by this Washington, DC 20472, (202) 646–3886. Brown Fund; 97.032, Crisis Counseling; declared major disaster: 97.033, Disaster Legal Services; 97.034, SUPPLEMENTARY INFORMATION: Notice is Ballard, Boone, Breckenridge, Bullitt, Disaster Unemployment Assistance (DUA); hereby given that, in a letter dated 97.046, Fire Management Assistance Grant; Caldwell, Calloway, Campbell, Carlisle, October 9, 2008, the President declared 97.048, Disaster Housing Assistance to Carroll, Crittenden, Daviess, Fulton, Gallatin, a major disaster under the authority of Individuals and Households in Presidentially Graves, Hancock, Henderson, Hickman, the Robert T. Stafford Disaster Relief Declared Disaster Areas; 97.049, Hopkins, Jefferson, Livingston, Lyon, and Emergency Assistance Act, 42 Presidentially Declared Disaster Assistance— Marshall, McCracken, McLean, Meade, U.S.C. 5121–5207 (the Stafford Act), as Disaster Housing Operations for Individuals Muhlenberg, Ohio, Oldham, Shelby, Trigg, follows: and Households; 97.050, Presidentially Trimble, Union, and Webster Counties for Declared Disaster Assistance to Individuals I have determined that the damage in Public Assistance. and Households—Other Needs; 97.036, certain areas of the State of Oklahoma All counties within the Commonwealth of Disaster Grants—Public Assistance resulting from severe storms, tornadoes, and Kentucky are eligible to apply for assistance (Presidentially Declared Disasters); 97.039, flooding during the period of September 12– Hazard Mitigation Grant. under the Hazard Mitigation Grant Program. 19, 2008, is of sufficient severity and The following Catalog of Federal Domestic magnitude to warrant a major disaster R. David Paulison, Assistance Numbers (CFDA) are to be used declaration under the Robert T. Stafford Administrator, Federal Emergency for reporting and drawing funds: 97.030, Disaster Relief and Emergency Assistance Management Agency. Community Disaster Loans; 97.031, Cora Act, 42 U.S.C. 5121–5207 (the Stafford Act). [FR Doc. E8–25871 Filed 10–29–08; 8:45 am] Brown Fund; 97.032, Crisis Counseling; Therefore, I declare that such a major disaster exists in the State of Oklahoma. BILLING CODE 9111–23–P 97.033, Disaster Legal Services; 97.034, In order to provide Federal assistance, you Disaster Unemployment Assistance (DUA); are hereby authorized to allocate from funds 97.046, Fire Management Assistance Grant; available for these purposes such amounts as DEPARTMENT OF HOMELAND 97.048, Disaster Housing Assistance to you find necessary for Federal disaster SECURITY Individuals and Households in Presidentially assistance and administrative expenses. Declared Disaster Areas; 97.049, You are authorized to provide Public Federal Emergency Management Presidentially Declared Disaster Assistance— Assistance in the designated areas, Hazard Agency Disaster Housing Operations for Individuals Mitigation throughout the State, and any [FEMA–1785–DR] and Households; 97.050, Presidentially other forms of assistance under the Stafford Act that you deem appropriate. Consistent Declared Disaster Assistance to Individuals Florida; Amendment No. 12 to Notice and Households—Other Needs; 97.036, with the requirement that Federal assistance be supplemental, any Federal funds provided of a Major Disaster Declaration Disaster Grants—Public Assistance under the Stafford Act for Hazard Mitigation (Presidentially Declared Disasters); 97.039, AGENCY: Federal Emergency will be limited to 75 percent of the total Hazard Mitigation Grant. eligible costs. Federal funds provided under Management Agency, DHS. ACTION: Notice. R. David Paulison, the Stafford Act for Public Assistance also will be limited to 75 percent of the total Administrator, Federal Emergency eligible costs, except for any particular SUMMARY: This notice amends the notice Management Agency. projects that are eligible for a higher Federal of a major disaster declaration for the [FR Doc. E8–25872 Filed 10–29–08; 8:45 am] cost-sharing percentage under the FEMA State of Florida (FEMA–1785–DR), BILLING CODE 9111–23–P Public Assistance Pilot Program instituted dated August 24, 2008, and related pursuant to 6 U.S.C. 777. If Other Needs determinations. Assistance under Section 408 of the Stafford DATES: Act is later requested and warranted, Federal Effective Date: October 16, 2008. funding under that program also will be FOR FURTHER INFORMATION CONTACT: limited to 75 percent of the total eligible Peggy Miller, Disaster Assistance costs. Directorate, Federal Emergency

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Management Agency, 500 C Street, SW., include the Public Assistance program Clark, Crawford, Dearborn, Harrison, Washington, DC 20472, (202) 646–3886. for the following areas among those Jefferson, Jennings, Lake, Porter, and Switzerland Counties for Public Assistance SUPPLEMENTARY INFORMATION: The notice areas determined to have been adversely affected by the catastrophe declared a (already designated for Individual of a major disaster declaration for the Assistance). State of Florida is hereby amended to major disaster by the President in his Fayette, Ripley, and Wayne Counties for include the following areas among those declaration of October 3, 2008. Public Assistance. areas determined to have been adversely Cook, DuPage, Grundy, and LaSalle Scott and Washington Counties for affected by the catastrophe declared a Counties for Public Assistance (already Individual Assistance and Public Assistance. major disaster by the President in his designated for Individual Assistance). Floyd and Perry Counties for Individual declaration of August 24, 2008. The following Catalog of Federal Domestic Assistance. The following Catalog of Federal Domestic Madison County for Individual Assistance. Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Assistance Numbers (CFDA) are to be used Bradford, Clay, and Taylor Counties for for reporting and drawing funds: 97.030, Individual Assistance (already designated for Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; Community Disaster Loans; 97.031, Cora Public Assistance). Brown Fund; 97.032, Crisis Counseling; Charlotte County for Public Assistance. 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.033, Disaster Legal Services; 97.034, The following Catalog of Federal Domestic 97.046, Fire Management Assistance Grant; Disaster Unemployment Assistance (DUA); Assistance Numbers (CFDA) are to be used 97.048, Disaster Housing Assistance to 97.046, Fire Management Assistance Grant; for reporting and drawing funds: 97.030, Individuals and Households in Presidentially 97.048, Disaster Housing Assistance to Community Disaster Loans; 97.031, Cora Declared Disaster Areas; 97.049, Individuals and Households In Presidentially Brown Fund; 97.032, Crisis Counseling; Presidentially Declared Disaster Assistance— Declared Disaster Areas; 97.049, 97.033, Disaster Legal Services; 97.034, Disaster Housing Operations for Individuals Presidentially Declared Disaster Assistance— Disaster Unemployment Assistance (DUA); and Households; 97.050, Presidentially Disaster Housing Operations for Individuals 97.046, Fire Management Assistance Grant; Declared Disaster Assistance to Individuals and Households; 97.050 Presidentially 97.048, Disaster Housing Assistance to and Households—Other Needs; 97.036, Declared Disaster Assistance to Individuals Individuals and Households In Presidentially Disaster Grants—Public Assistance and Households—Other Needs; 97.036, Declared Disaster Areas; 97.049, (Presidentially Declared Disasters); 97.039, Disaster Grants—Public Assistance Presidentially Declared Disaster Assistance— Hazard Mitigation Grant. (Presidentially Declared Disasters); 97.039, Disaster Housing Operations for Individuals Hazard Mitigation Grant. and Households; 97.050 Presidentially R. David Paulison, R. David Paulison, Declared Disaster Assistance to Individuals Administrator, Federal Emergency and Households—Other Needs; 97.036, Management Agency. Administrator, Federal Emergency Disaster Grants—Public Assistance Management Agency. [FR Doc. E8–25870 Filed 10–29–08; 8:45 am] (Presidentially Declared Disasters); 97.039, [FR Doc. E8–25876 Filed 10–29–08; 8:45 am] BILLING CODE 9111–23–P Hazard Mitigation Grant. BILLING CODE 9111–23–P R. David Paulison, Administrator, Federal Emergency DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND Management Agency. SECURITY SECURITY [FR Doc. E8–25875 Filed 10–29–08; 8:45 am] BILLING CODE 9111–23–P Federal Emergency Management Agency Federal Emergency Management Agency [FEMA–1795–DR] DEPARTMENT OF HOMELAND [FEMA–1802–DR] SECURITY Indiana; Amendment No. 4 to Notice of Kentucky; Amendment No. 1 to Notice a Major Disaster Declaration Federal Emergency Management of a Major Disaster Declaration AGENCY: Agency Federal Emergency AGENCY: Federal Emergency Management Agency, DHS. [FEMA–1800–DR] Management Agency, DHS. ACTION: Notice. ACTION: Notice. Illinois; Amendment No. 2 to Notice of a Major Disaster Declaration SUMMARY: This notice amends the notice SUMMARY: This notice amends the notice of a major disaster declaration for the of a major disaster declaration for the AGENCY: Federal Emergency State of Indiana (FEMA–1795–DR), Commonwealth of Kentucky (FEMA– Management Agency, DHS. dated September 23, 2008, and related 1802–DR), dated October 9, 2008, and ACTION: Notice. determinations. related determinations. DATES: Effective Date: October 16, 2008. DATES: Effective Date: October 21, 2008. SUMMARY: This notice amends the notice FOR FURTHER INFORMATION CONTACT: of a major disaster declaration for the FOR FURTHER INFORMATION CONTACT: State of Illinois (FEMA–1800–DR), Peggy Miller, Disaster Assistance Peggy Miller, Disaster Assistance dated October 3, 2008, and related Directorate, Federal Emergency Directorate, Federal Emergency determinations. Management Agency, 500 C Street, SW., Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886. Washington, DC 20472, (202) 646–3886. DATES: Effective Date: October 15, 2008. SUPPLEMENTARY INFORMATION: The notice SUPPLEMENTARY INFORMATION: The notice FOR FURTHER INFORMATION CONTACT: of a major disaster declaration for the of a major disaster declaration for the Peggy Miller, Disaster Assistance State of Indiana is hereby amended to Commonwealth of Kentucky is hereby Directorate, Federal Emergency include the Public Assistance program amended to include the following area Management Agency, 500 C Street, SW., for the following areas among those among those areas determined to have Washington, DC 20472, (202) 646–3886. areas determined to have been adversely been adversely affected by the SUPPLEMENTARY INFORMATION: The notice affected by the catastrophe declared a catastrophe declared a major disaster by of a major disaster declaration for the major disaster by the President in his the President in his declaration of State of Illinois is hereby amended to declaration of September 23, 2008. October 9, 2008.

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Kenton County for Public Assistance. Community Disaster Loans; 97.031, Cora Presidentially Declared Disaster Assistance— The following Catalog of Federal Domestic Brown Fund; 97.032, Crisis Counseling; Disaster Housing Operations for Individuals Assistance Numbers (CFDA) are to be used 97.033, Disaster Legal Services; 97.034, and Households; 97.050 Presidentially for reporting and drawing funds: 97.030, Disaster Unemployment Assistance (DUA); Declared Disaster Assistance to Individuals Community Disaster Loans; 97.031, Cora 97.046, Fire Management Assistance Grant; and Households—Other Needs; 97.036, Brown Fund; 97.032, Crisis Counseling; 97.048, Disaster Housing Assistance to Disaster Grants—Public Assistance 97.033, Disaster Legal Services; 97.034, Individuals and Households in Presidentially (Presidentially Declared Disasters); 97.039, Disaster Unemployment Assistance (DUA); Declared Disaster Areas; 97.049, Hazard Mitigation Grant. 97.046, Fire Management Assistance Grant; Presidentially Declared Disaster Assistance— R. David Paulison, 97.048, Disaster Housing Assistance to Disaster Housing Operations for Individuals Individuals and Households In Presidentially and Households; 97.050 Presidentially Administrator, Federal Emergency Declared Disaster Areas; 97.049, Declared Disaster Assistance to Individuals Management Agency. Presidentially Declared Disaster Assistance— and Households—Other Needs; 97.036, [FR Doc. E8–25868 Filed 10–29–08; 8:45 am] Disaster Housing Operations for Individuals Disaster Grants—Public Assistance BILLING CODE 9110–23–P and Households; 97.050 Presidentially (Presidentially Declared Disasters); 97.039, Declared Disaster Assistance to Individuals Hazard Mitigation Grant. and Households—Other Needs; 97.036, R. David Paulison, DEPARTMENT OF HOMELAND Disaster Grants—Public Assistance SECURITY (Presidentially Declared Disasters);97.039, Administrator, Federal Emergency Management Agency. Hazard Mitigation Grant. Federal Emergency Management [FR Doc. E8–25869 Filed 10–29–08; 8:45 am] R. David Paulison, Agency BILLING CODE 9111–23–P Administrator, Federal Emergency Management Agency. [FEMA–1798–DR] [FR Doc. E8–25877 Filed 10–29–08; 8:45 am] DEPARTMENT OF HOMELAND Puerto Rico; Amendment No. 3 to BILLING CODE 9111–23–P SECURITY Notice of a Major Disaster Declaration

Federal Emergency Management AGENCY: Federal Emergency DEPARTMENT OF HOMELAND Agency Management Agency, DHS. SECURITY [FEMA–1794–DR] ACTION: Notice. Federal Emergency Management Mississippi; Amendment No. 3 to SUMMARY: This notice amends the notice Agency Notice of a Major Disaster Declaration of a major disaster declaration for the [FEMA–1786–DR] Commonwealth of Puerto Rico (FEMA– AGENCY: Federal Emergency 1798–DR), dated October 1, 2008, and Management Agency, DHS. Louisiana; Amendment No. 9 to Notice related determinations. of a Major Disaster Declaration ACTION: Notice. DATES: Effective Date: October 16, 2008. AGENCY: Federal Emergency SUMMARY: This notice amends the notice FOR FURTHER INFORMATION CONTACT: Management Agency, DHS. of a major disaster declaration for the Peggy Miller, Disaster Assistance ACTION: Notice. State of Mississippi (FEMA–1794–DR), Directorate, Federal Emergency dated September 22, 2008, and related Management Agency, 500 C Street, SW., SUMMARY: This notice amends the notice determinations. Washington, DC 20472, (202) 646–3886. of a major disaster declaration for the DATES: Effective Date: October 20, 2008. SUPPLEMENTARY INFORMATION: State of Louisiana (FEMA–1786–DR), The notice dated September 2, 2008, and related FOR FURTHER INFORMATION CONTACT: of a major disaster declaration for the determinations. Peggy Miller, Disaster Assistance Commonwealth of Puerto Rico is hereby Directorate, Federal Emergency amended to include the following area DATES: Effective Date: October 16, 2008. Management Agency, 500 C Street, SW., among those areas determined to have FOR FURTHER INFORMATION CONTACT: Washington, DC 20472, (202) 646–3886. been adversely affected by the Peggy Miller, Disaster Assistance SUPPLEMENTARY INFORMATION: The notice catastrophe declared a major disaster by Directorate, Federal Emergency of a major disaster declaration for the the President in his declaration of Management Agency, 500 C Street, SW., State of Mississippi is hereby amended October 1, 2008. Washington, DC 20472, (202) 646–3886. to include the following area among Ponce Municipality for Public Assistance SUPPLEMENTARY INFORMATION: The notice those areas determined to have been (already designated for Individual of a major disaster declaration for the adversely affected by the catastrophe Assistance). State of Louisiana is hereby amended to declared a major disaster by the The following Catalog of Federal Domestic include the following areas among those President in his declaration of Assistance Numbers (CFDA) are to be used areas determined to have been adversely September 22, 2008. for reporting and drawing funds: 97.030, affected by the catastrophe declared a Community Disaster Loans; 97.031, Cora major disaster by the President in his Issaquena County for Public Assistance. Brown Fund; 97.032, Crisis Counseling; declaration of September 2, 2008. The following Catalog of Federal Domestic 97.033, Disaster Legal Services; 97.034, Assistance Numbers (CFDA) are to be used Disaster Unemployment Assistance (DUA); Concordia, East Carroll, Madison, for reporting and drawing funds: 97.030, 97.046, Fire Management Assistance Grant; Morehouse, Ouachita, Richland, Tensas, Community Disaster Loans; for public 97.048, Disaster Housing Assistance to Union, West Carroll, and Winn Parishes for inspection in their entirety.97.031, Cora Individuals and Households in Presidentially Individual Assistance (already designated for Brown Fund; 97.032, Crisis Counseling; Declared Disaster Areas; 97.049, Public Assistance, including direct Federal 97.033, Disaster Legal Services; 97.034, Presidentially Declared Disaster Assistance— Assistance, under the Public Assistance Disaster Unemployment Assistance (DUA); Disaster Housing Operations for Individuals program). 97.046, Fire Management Assistance Grant; and Households; 97.050 Presidentially The following Catalog of Federal Domestic 97.048, Disaster Housing Assistance to Declared Disaster Assistance to Individuals Assistance Numbers (CFDA) are to be used Individuals and Households in Presidentially and Households—Other Needs; 97.036, for reporting and drawing funds: 97.030, Declared Disaster Areas; 97.049, Disaster Grants—Public Assistance

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(Presidentially Declared Disasters); 97.039, and Households—Other Needs; 97.036, Fish and Wildlife Service that we have Hazard Mitigation Grant. Disaster Grants—Public Assistance received your e-mail message, contact (Presidentially Declared Disasters); 97.039, R. David Paulison, us directly at the telephone number Hazard Mitigation Grant. FOR FURTHER Administrator, Federal Emergency listed above (see Management Agency. R. David Paulison, INFORMATION CONTACT section). Finally, [FR Doc. E8–25873 Filed 10–29–08; 8:45 am] Administrator, Federal Emergency you may hand deliver comments to the Management Agency. Fish and Wildlife Service office listed BILLING CODE 9111–23–P [FR Doc. E8–25874 Filed 10–29–08; 8:45 am] above (see ADDRESSES section). BILLING CODE 9111–23–P Before including your address, DEPARTMENT OF HOMELAND telephone number, e-mail address, or SECURITY other personal identifying information DEPARTMENT OF THE INTERIOR in your comments, you should be aware Federal Emergency Management that your entire comment—including Agency Fish and Wildlife Service your personal identifying information— may be made publicly available at any [FEMA–1791–DR] [FWS–R4–ES–2008–N0291; 40120–1112– time. While you can ask us in your 0000–F5] Texas; Amendment No. 9 to Notice of comments to withhold your personal identifying information from public a Major Disaster Declaration Receipt of Applications for review, we cannot guarantee that we Endangered Species Permits AGENCY: Federal Emergency will be able to do so. There may also be Management Agency, DHS. AGENCY: Fish and Wildlife Service, other circumstances in which we would ACTION: Notice. Interior. withhold from the administrative record ACTION: Notice. a respondent’s identity, as allowable by SUMMARY: This notice amends the notice law. If you wish us to withhold your of a major disaster declaration for the SUMMARY: The public is invited to name and address, you must state this State of Texas (FEMA–1791–DR), dated comment on the following applications prominently at the beginning of your September 13, 2008, and related to conduct certain activities with comments. We will not, however, determinations. threatened and endangered species. consider anonymous comments. We DATES: Effective Date: October 16, 2008. DATES: We must receive written data or will make all submissions from FOR FURTHER INFORMATION CONTACT: comments on the applications at the organizations or businesses, and from Peggy Miller, Disaster Assistance address given below, by December 1, individuals identifying themselves as Directorate, Federal Emergency 2008. representatives or officials of Management Agency, 500 C Street, SW., organizations or businesses, available ADDRESSES: Documents and other for public inspection in their entirety. Washington, DC 20472, (202) 646–3886. information submitted with the Applicant: Paul Yokley, Florence, SUPPLEMENTARY INFORMATION: The notice applications are available for review, Alabama, TE027307 of a major disaster declaration for the subject to the requirements of the State of Texas is hereby amended to Privacy Act and Freedom of Information The applicant requests renewal of include the following areas among those Act, by any party who submits a written existing authorization to capture, areas determined to have been adversely request for a copy of such documents to identify, and release 67 species of affected by the catastrophe declared a the following office within 30 days of mussel, fish, snail, and turtle for major disaster by the President in his the date of publication of this notice: presence/absence surveys throughout declaration of September 13, 2008. Fish and Wildlife Service, 1875 Century the species ranges in Alabama, Aransas, Burleson, Nueces, and San Boulevard, Suite 200, Atlanta, Georgia Tennessee, Mississippi, and Georgia. Patricio Counties for Public Assistance. 30345 (Attn: David Dell, HCP Applicant: CCR Environmental, Atlanta, Rusk County for Public Assistance (already Coordinator). Georgia, TE059008 designated for Individual Assistance). The applicant requests renewal of Cherokee, Harris, Houston, Liberty, FOR FURTHER INFORMATION CONTACT: David Dell, telephone 404/679–7313; existing authorization to capture, Matagorda, Montgomery, Orange, San identify, and release 110 species of Augustine, and Trinity Counties for Public facsimile 404/679–7081. mussel, fish, snail, crayfish, reptile and Assistance [Categories C–G] (already SUPPLEMENTARY INFORMATION: The designated for Individual Assistance and amphibian; and to harass five bird public is invited to comment on the species for presence/absence surveys debris removal and emergency protective following applications for permits to measures [Categories A and B], including throughout the species ranges in conduct certain activities with direct Federal assistance, under the Public Alabama, Tennessee, Mississippi, Assistance program). endangered and threatened species Georgia, Arkansas, Louisiana, Kentucky, pursuant to section 10(a)(1)(A) of the The following Catalog of Federal Domestic North Carolina, South Carolina, and Assistance Numbers (CFDA) are to be used Endangered Species Act of 1973, as Florida. amended (16 U.S.C. 1531 et seq.). This for reporting and drawing funds: 97.030, Applicant: East Kentucky Power Community Disaster Loans; 97.031, Cora notice is provided under section 10(c) of Brown Fund; 97.032, Crisis Counseling; the Act. If you wish to comment, you Cooperative, Winchester, Kentucky, 97.033, Disaster Legal Services; 97.034, may submit comments by any one of the TE816862 Disaster Unemployment Assistance (DUA); following methods. You may mail The applicant requests renewal of 97.046, Fire Management Assistance Grant; comments to the Fish and Wildlife existing authorization to capture, 97.048, Disaster Housing Assistance to Service’s Regional Office (see identify, and release Virginia big-eared Individuals and Households in Presidentially ADDRESSES section) or via electronic bats (Plecotus townsendii virginianus), Declared Disaster Areas; 97.049, _ Presidentially Declared Disaster Assistance— mail (e-mail) to david [email protected]. Indiana bats (Myotis sodalis), and gray Disaster Housing Operations for Individuals Please include your name and return bats (Myotis grisescen), as well as and Households; 97.050, Presidentially address in your e-mail message. If you nineteen species of mussels, for Declared Disaster Assistance to Individuals do not receive a confirmation from the presence/absence surveys throughout

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Kentucky. Indiana bat surveys are also collect tissue samples, and release, DEPARTMENT OF THE INTERIOR conducted throughout the species range Perdido Key (Peromyscus polionotus in the southeast and midwestern United trissyllepsis), Choctawhatchee (P.p. Fish and Wildlife Service States. polionotus), and St. Andrews (P.p. [FWS–R9–IA–2008–N0290; 96300–1671– Applicant: Geosyntac Consultants, Inc., peninsularis) beach mice while 0000–P5] Kennesaw, Georgia, TE095972 conducting research activities The applicant requests renewal of throughout Florida. Receipt of Applications for Permit existing authorization to capture, Applicant: Christopher Skelton, Athens, AGENCY: Fish and Wildlife Service, identify, and release Conasauga Georgia, TE121073 Interior. logperch (Percina jenkinsi), blue shiner ACTION: Notice of receipt of applications The applicant requests renewal of (Cyprinella caerulea), amber darter for permit. (Percina antesella), goldline darter existing authorization to capture, (Percina aurolineata), Etowah darter identify, and release seven species of SUMMARY: The public is invited to (Etheostoma etowahae), snail darter fish and seventeen species of mussel for comment on the following applications (Percina tanasi), and Cherokee darter presence/absence surveys throughout to conduct certain activities with (Etheostoma scotti) for presence/ the species ranges in Georgia. endangered species. absence surveys throughout the species DATES: Written data, comments or ranges in Georgia. The applicant Applicant: Tampa’s Lowry Park Zoo, Tampa, Florida, TE763742 requests must be received by December requests amendment of this 1, 2008. authorization to add eleven species of The applicant requests renewal of ADDRESSES: Documents and other mussels and to add flatwoods existing authorization to receive and information submitted with these salamander (Ambystoma cingulatum) maintain in captivity Florida panthers applications are available for review, and eastern indigo snake (Drymarchon (Felis concolor coryi) in cooperation subject to the requirements of the corais couperi) for presence/absence with the State of Florida and the Service Privacy Act and Freedom of Information surveys throughout the species ranges in for species recovery activities. Act, by any party who submits a written Georgia. request for a copy of such documents Applicant: The University of Florida, Applicant: Ronald Rohrbaugh, Cornell Lab of Ornithology, Ithaca, New York, within 30 days of the date of publication Fort Lauderdale Research and of this notice to: U.S. Fish and Wildlife TE108852 Education Center, Davie, Florida, Service, Division of Management TE077258 The applicant requests renewal of Authority, 4401 North Fairfax Drive, The applicant requests renewal of existing authorization to harass ivory- Room 212, Arlington, Virginia 22203; existing authorization to capture, tag, billed woodpeckers (Campephilus fax 703/358–2281. salvage, collect blood and tissue, and principalis) for survey and research FOR FURTHER INFORMATION CONTACT: release American crocodiles purposes throughout the species Division of Management Authority, (Crocodylus acutus) for research and potential range in the southeastern and telephone 703/358–2104. monitoring populations throughout the Midwestern United States. SUPPLEMENTARY INFORMATION: species range in Florida. Applicant: James B. Layzer, Tennessee Applicant: Mark Merchant, McNeese Endangered Species Cooperative Fishery Research Unit, State University, Lake Charles, The public is invited to comment on Louisiana, TE196632 Cookeville, Tennessee, TE078207 the following applications for a permit The applicant requests authorization The applicant requests renewal of to conduct certain activities with to capture, collect blood and tissue, and existing authorization to capture, retain endangered species. This notice is release American crocodiles for research for captive propagation, and release provided pursuant to Section 10(c) of purposes throughout the species range seventeen species of mussels while the Endangered Species Act of 1973, as in Florida. conducting research and recovery- amended (16 U.S.C. 1531 et seq.). Applicant: Register-Nelson, Inc., related activities throughout the species Written data, comments, or requests for McDonaugh, Georgia, TE114088 ranges in Tennessee, Alabama, North copies of these complete applications Carolina, and Kentucky. should be submitted to the Director The applicant requests renewal of (address above). existing authorization to capture, Applicant: Sunlight Gardens, Anderson, Applicant: Michael A. Jarvis, Oregon identify, and release blue shiner Tennessee, TE125626 Health and Science University, (Cyprinella caerulea), Etowah darter The applicant requests renewal of Portland, OR,PRT–190313 (Etheostoma etowahae), Cherokee darter The applicant requests a permit to existing authorization to sell in (Etheostoma scotti), amber darter acquire fibroblast cell cultures from one interstate commerce artificially (Percina antesella), goldline darter female captive born gorilla (Gorilla (Percina aurolineata), snail darter propagated specimens of Tennessee gorilla) in interstate commerce from (Percina tanasi), Conasauga logperch purple coneflower (Echinaceae Coriell Cell Repository, Camden, NJ, for (Percina jenkinsi), and the eastern tennesseensis) and Cumberland the purpose of scientific research. This indigo snake (Drymarchon corais rosemary (Conradina verticillata). notification covers the one-time couperi) for presence/absence surveys Dated: October 16, 2008. acquisition only. throughout the species ranges in Applicant: Fred H. Gage, Salk Institute Georgia. Cynthia K. Dohner, Acting Regional Director. for Biological Studies, San Diego, CA, Applicant: Hopi Hoekstra, Harvard PRT–191132 [FR Doc. E8–25901 Filed 10–29–08; 8:45 am] University, Cambridge, The applicant requests a permit to Massachussetts, TE095962 BILLING CODE 4310–55–P acquire fibroblast cell cultures from one The applicant requests renewal of male captive born chimpanzee (Pan existing authorization to capture, tag, troglodytes) and one male and one

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female bonobo (Pan paniscus) in The applicant requests a permit to DEPARTMENT OF THE INTERIOR interstate commerce from Coriell Cell import the sport-hunted trophy of one Repository, Camden, NJ, for the purpose male bontebok (Damaliscus pygargus Bureau of Indian Affairs of scientific research. This notification pygargus) culled from a captive herd covers the one-time acquisition only. maintained under the management Rate Adjustments for Indian Irrigation Applicant: Sherry V. Nelson, program of the Republic of South Africa, Projects Department of Anthropology, for the purpose of enhancement of the AGENCY: Bureau of Indian Affairs, University of New Mexico, survival of the species. Interior. Albuquerque, NM, PRT–194491 Applicant: Roger D. Barker, ACTION: Notice of proposed rate The applicant requests a permit to Birmingham, AL, PRT–196611 adjustments. import powdered tooth enamel from chimpanzees (Pan troglodytes) found The applicant requests a permit to SUMMARY: The Bureau of Indian Affairs dead in the wild in Uganda, for the import the sport-hunted trophy of one (BIA) owns, or has an interest in, purpose of scientific research. This male bontebok (Damaliscus pygargus irrigation projects located on or notification covers the one-time pygargus) culled from a captive herd associated with various Indian importation only. maintained under the management reservations throughout the United Applicant: Wildlife Conservation program of the Republic of South Africa, States. We are required to establish Society, Bronx, NY, PRT–195916 for the purpose of enhancement of the irrigation assessment rates to recover the The applicant requests a permit to survival of the species. costs to administer, operate, maintain, export two male and two female captive Applicant: Russell C. Murphy, Little and rehabilitate these projects. We born Western gorillas (Gorilla gorilla) to Rock, AR, PRT–196610 request your comments on the proposed the Calgary Zoo, Canada for the purpose The applicant requests a permit to rate adjustments. of enhancement of the species through import the sport-hunted trophy of one DATES: Interested parties may submit captive breeding and conservation male bontebok (Damaliscus pygargus comments on the proposed rate education. pygargus) culled from a captive herd adjustments on or before December 29, Applicant: University of Florida, Florida maintained under the management 2008. Museum of Natural History, program of the Republic of South Africa, ADDRESSES: All comments on the Gainesville, FL, PRT–193170 for the purpose of enhancement of the proposed rate adjustments must be in The applicant requests a permit to survival of the species. writing and addressed to: John Anevski, import specimens from endangered Chief, Division of Irrigation, Power and Crocodilian species from various Applicant: Gary L. Joeris, San Antonio, TX, PRT–196633 Safety of Dams, Office of Trust Services, museums and scientific institutions Mail Stop 4655–MIB, 1849 C Street, around the world for the purpose of The applicant requests a permit to NW., Washington, DC 20240, Telephone scientific research. This notification import the sport-hunted trophy of one (202) 208–5480. covers activities to be conducted by the male bontebok (Damaliscus pygargus FOR FURTHER INFORMATION CONTACT: For applicant over a five-year period. pygargus) culled from a captive herd details about a particular irrigation Applicant: Kenneth E. Buch, Silver maintained under the management project, please use the tables in the Spring, MD, PRT–193458 program of the Republic of South Africa, SUPPLEMENTARY INFORMATION section to The applicant requests a permit to for the purpose of enhancement of the contact the regional or local office import the sport-hunted trophy of one survival of the species. where the project is located. male bontebok (Damaliscus pygargus Applicant: Robert W. Barnes, San SUPPLEMENTARY INFORMATION: The first pygargus) culled from a captive herd Antonio, TX, PRT–195287 table in this notice provides contact maintained under the management The applicant requests a permit to information for individuals who can program of the Republic of South Africa, import the sport-hunted trophy of one give further information about the for the purpose of enhancement of the male bontebok (Damaliscus pygargus irrigation projects covered by this survival of the species. pygargus) culled from a captive herd notice. The second table provides the Applicant: David Clemente, Laredo, TX, maintained under the management current 2008 irrigation assessment rates, PRT–195244 program of the Republic of South Africa, the proposed rates for the 2009 The applicant requests a permit to for the purpose of enhancement of the irrigation season, and proposed rates for import the sport-hunted trophy of one survival of the species. subsequent years where these are male bontebok (Damaliscus pygargus available. pygargus) culled from a captive herd Applicant: Raymond M. Waters, III, maintained under the management Columbus, MS, PRT–196478 What is the meaning of the key terms program of the Republic of South Africa, The applicant requests a permit to used in this notice? for the purpose of enhancement of the import the sport-hunted trophy of one In this notice: survival of the species. male bontebok (Damaliscus pygargus Administrative costs means all costs Applicant: Wesley E. Hixon, Wildwood, pygargus) culled from a captive herd we incur to administer our irrigation GA, PRT–195911 maintained under the management projects at the local project level and is The applicant requests a permit to program of the Republic of South Africa, a cost factor included in calculating import the sport-hunted trophy of one for the purpose of enhancement of the your O&M assessment. Costs incurred at male bontebok (Damaliscus pygargus survival of the species. the local project level do not normally pygargus) culled from a captive herd Dated: October 17, 2008. include Agency, Region, or Central maintained under the management Office costs unless we state otherwise in program of the Republic of South Africa, Lisa J. Lierheimer, writing. for the purpose of enhancement of the Senior Permit Biologist, Branch of Permits, Assessable acre means lands survival of the species. Division of Management Authority. designated by us to be served by one of Applicant: Trent B. Latshaw, Tulsa, OK, [FR Doc. E8–25921 Filed 10–29–08; 8:45 am] our irrigation projects, for which we PRT–196067 BILLING CODE 4310–55–P collect assessments in order to recover

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costs for the provision of irrigation or to the nearest state which can be When will you put the rate adjustments service. (See total assessable acres.) achieved using current technology and into effect? BIA means the Bureau of Indian is a cost factor included in calculating We will put the rate adjustments into Affairs. your O&M assessment. effect for the 2009 irrigation season and Bill means our statement to you of the Responsible party means an subsequent years where applicable. assessment charges and/or fees you owe individual or entity that owns or leases the United States for administration, How do you calculate irrigation rates? land within the assessable acreage of operation, maintenance, and/or one of our irrigation projects and is We calculate annual irrigation rehabilitation. The date we mail or responsible for providing accurate assessment rates in accordance with 25 hand-deliver your bill will be stated on information to our billing office and CFR part 171.500 by estimating the it. paying a bill for an annual irrigation rate annual costs of operation and Costs means the costs we incur for assessment. maintenance at each of our irrigation administration, operation, maintenance, Total assessable acres means the total projects and then dividing by the total and rehabilitation to provide direct assessable acres for that particular support or benefit to an irrigation acres served by one of our irrigation projects. irrigation project. The result of this facility. (See administrative costs, calculation for each project is stated in operation costs, maintenance costs, and Water delivery is an activity that is the rate table in this notice. rehabilitation costs). part of the irrigation service we provide Customer means any person or entity our customers when water is available. What kinds of expenses do you to which we provide irrigation service. consider in determining the estimated Due date is the date on which your We, us, and our means the United annual costs of operation and bill is due and payable. This date will States Government, the Secretary of the maintenance? Interior, the BIA, and all who are be stated on your bill. Consistent with 25 CFR part 171.500, I, me, my, you, and your means all authorized to represent us in matters covered under this notice. these expenses include the following: persons or entities that are affected by (a) Salary and benefits for the project this notice. Does this notice affect me? engineer/manager and project Irrigation project means a facility or employees under the project engineer/ This notice affects you if you own or portion thereof for the delivery, manager’s management or control; diversion, and storage of irrigation water lease land within the assessable acreage (b) Materials and supplies; that we own or have an interest in, of one of our irrigation projects or if you (c) Vehicle and equipment repairs; including all appurtenant works. The have a carriage agreement with one of (d) Equipment costs, including lease term ‘‘irrigation project’’ is used our irrigation projects. fees; interchangeably with irrigation facility, Where can I get information on the (e) Depreciation; irrigation system, and irrigation area. regulatory and legal citations in this (f) Acquisition costs; Irrigation service means the full range notice? (g) Maintenance of a reserve fund of services we provide customers of our available for contingencies or irrigation projects. This includes our You can contact the appropriate emergency costs needed for the reliable activities to administer, operate, office(s) stated in the tables for the operation of the irrigation facility maintain, and rehabilitate our projects irrigation project that serves you, or you infrastructure; in order to deliver water. can use the Internet site for the (h) Maintenance of a vehicle and Maintenance costs means costs we Government Printing Office at http:// heavy equipment replacement fund; incur to maintain and repair our www.gpo.gov. (i) Systematic rehabilitation and irrigation projects and associated replacement of project facilities; equipment and is a cost factor included Why are you publishing this notice? (j) Contingencies for unknown costs in calculating your operation and We are publishing this notice to notify and omitted budget items; and maintenance (O&M) assessment. (k) Other expenses we determine you that we propose to adjust our Operation and maintenance (O&M) necessary to properly perform the irrigation assessment rates. This notice assessment means the periodic charge activities and functions characteristic of is published in accordance with the you must pay us to reimburse costs of an irrigation project. administering, operating, maintaining, BIA’s regulations governing its and rehabilitating irrigation projects operation and maintenance of irrigation When should I pay my irrigation consistent with this notice and our projects, found at 25 CFR part 171. This assessment? supporting policies, manuals, and regulation provides for the We will mail or hand-deliver your bill handbooks. establishment and publication of the notifying you of: (a) The amount you Operation or operating costs means rates for annual irrigation assessments owe to the United States, and (b) when costs we incur to operate our irrigation as well as related information about our such amount is due. If we mail your bill, projects and equipment and is a cost irrigation projects. we will consider it as being delivered no factor included in calculating your O&M What authorizes you to issue this later than 5 business days after the day assessment. notice? we mail it. You should pay your bill by Past due bill means a bill that has not the due date stated on the bill. been paid by the close of business on Our authority to issue this notice is the 30th day after the due date as stated vested in the Secretary of the Interior by What information must I provide for on the bill. Beginning on the 31st day 5 U.S.C. 301 and the Act of August 14, billing purposes? after the due date, we begin assessing 1914 (38 Stat. 583; 25 U.S.C. 385). The All responsible parties are required to additional charges accruing from the Secretary has in turn delegated this provide the following information to the due date. authority to the Assistant Secretary— billing office associated with the Rehabilitation costs means costs we Indian Affairs under Part 209, Chapter irrigation project where you own or incur to restore our irrigation projects or 8.1A, of the Department of the Interior’s lease land within the project’s features to original operating condition Departmental Manual. assessable acreage or to the billing office

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associated with the irrigation project not provide grounds for you to appeal assessed (31 CFR 901.9(b)). You will not with which you have a carriage your bill or any penalties assessed. be assessed this charge until your bill is agreement: past due. However, if you allow your What can happen if I do not provide the bill to become past due, interest will (1) The full legal name of person or information required for billing accrue from the original due date, not entity responsible for paying the bill; purposes? (2) An adequate and correct address the past due date. Also, you will be We can refuse to provide you for mailing or hand delivering our bill; charged an administrative fee of $12.50 irrigation service. and for each time we try to collect your past due bill. If your bill becomes more than (3) The taxpayer identification If I allow my bill to become past due, could this affect my water delivery? 90 days past due, you will be assessed number or social security number of the a penalty charge of six percent (6%) per person or entity responsible for paying If we do not receive your payment year, which will accrue from the date the bill. before the close of business on the 30th your bill initially became past due. As Why are you collecting my taxpayer day after the due date stated on your a Federal agency, we are required to identification number or social security bill, we will send you a past due notice. charge interest, penalties, and number? This past due notice will have administrative costs on debts owed to us additional information concerning your pursuant to 31 U.S.C. 3717 and 31 CFR Public Law 104–134, the Debt rights. We will consider your past due 901.9, ‘‘Interest, penalties, and Collection Improvement Act of 1996, notice as delivered no later than 5 administrative costs.’’ requires that we collect the taxpayer business days after the day we mail it. identification number or social security We have the right to refuse water What else will happen to my past due number before billing a responsible delivery to any irrigated land for which bill? party and as a condition to servicing the the bill is past due. We can continue to If you do not pay your bill or make account. refuse water delivery until you pay your payment arrangements to which we What happens if I am a responsible bill or make payment arrangements to agree, we are required to send your past party but I fail to furnish the which we agree. We follow the due bill to the Treasury for further information required to the billing procedures provided in 31 CFR 901.2, action. Under the provisions of 31 CFR office responsible for the irrigation ‘‘Demand for Payment,’’ when 901.1, ‘‘Aggressive agency collection project within which I own or lease demanding payment of your past due activity,’’ we must send any unpaid assessable land or for which I have a bill. annual irrigation assessment bill to Treasury no later than 180 days after the carriage agreement? Are there any additional charges if I am original due date of the bill. If you are late paying your bill late paying my bill? because of your failure to furnish the Yes. We will assess you interest on Who can I contact for further required information listed above, you the amount owed, using the rate of information? will be assessed interest and penalties interest established annually by the The following tables are the regional as provided below, and your failure to Secretary of the United States Treasury and project/agency contacts for our provide the required information will (Treasury) to calculate what you will be irrigation facilities.

Northwest Region Contacts

Stanley Speaks, Regional Director Bureau of Indian Affairs, Northwest Regional Office 911 N.E. 11th Avenue Portland, Oregon 97232–4169 Telephone: (503) 231–6702

Project Name Project/Agency Contacts

Flathead Chuck Courville, Superintendent Irrigation Project Ed McKay, Acting Irrigation Manager Flathead Agency Irrigation Division P.O. Box 40 Pablo, MT 59855–0040 Telephone: (406) 675–2700

Fort Hall Eric J. LaPointe, Superintendent Irrigation Project Alan Oliver, Supervisory General Engineer Fort Hall Agency P.O. Box 220 Fort Hall, ID 83203–0220 Telephone: (208) 238–2301

Wapato Pierce Harrison, Project Administrator Irrigation Project Wapato Irrigation Project P.O. Box 220 Wapato, WA 98951–0220 Telephone: (509) 877–3155

Rocky Mountain Region Contacts

Ed Parisian, Regional Director

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Bureau of Indian Affairs, Rocky Mountain Regional Office 316 North 26th Street Billings, Montana 59101 Telephone: (406) 247–7943

Project Name Agency/Project Contacts

Blackfeet Stephen Pollock, Superintendent Irrigation Project Ted Hall, Irrigation Project Manager Box 880 Browning, MT 59417 Telephones: (406) 338–7544, Superintendent (406) 338–7519, Irrigation Project Manager

Crow George Grover, Superintendent Irrigation Project Karl Helvik, Irrigation Project Manager P.O. Box 69 Crow Agency, MT 59022 Telephones: (406) 638–2672, Superintendent (406) 638–2863, Irrigation Project Manager

Fort Belknap Judy Gray, Superintendent Irrigation Project Ralph Leo, Irrigation Project Manager R.R.1, Box 980 Harlem, MT 59526 Telephones: (406) 353–2901, Superintendent (406) 353–2905, Irrigation Project Manager

Fort Peck Florence White Eagle, Superintendent Irrigation Project P.O. Box 637 Poplar, MT 59255 Richard Kurtz, Irrigation Manager 602 6th Avenue North Wolf Point, MT 59201 Telephones: (406) 768–5312, Superintendent (406) 653–1752, Irrigation Manager

Wind River Ed Lone Flight, Superintendent Irrigation Project Ray Nation, Acting Irrigation Project Manager P.O. Box 158 Fort Washakie, WY 82514 Telephones: (307) 332–7810, Superintendent (307) 332–2596, Irrigation Project Manager

Southwest Region Contacts

William T. Walker, acting Regional Director Bureau of Indian Affairs, Southwest Regional Office 1001 Indian School Road Albuquerque, New Mexico 87104 Telephone: (505) 563–3100

Project Name Project/Agency Contacts

Pine River Vacant, Superintendent Irrigation Project John Formea, Irrigation Engineer P.O. Box 315 Ignacio, CO 81137–0315 Telephones: (970) 563–4511, Superintendent (970) 563–9484, Irrigation Engineer

Western Region Contacts

Allen Anspach, Regional Director Bureau of Indian Affairs, Western Regional Office Two Arizona Center 400 N. 5th Street, 12th floor Phoenix, Arizona 85004 Telephone: (602) 379–6600

Project Name Project/Agency Contacts

Colorado River Janice Staudte, Superintendent Irrigation Project Ted Henry, Irrigation Project Manager 12124 1st Avenue Parker, AZ 85344 Telephone: (928) 669–7111

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Duck Valley Joseph McDade, Superintendent Irrigation Project 1555 Shoshone Circle Elko, NV 89801 Telephone: (775) 738–0569

Fort Yuma Raymond Fry, Superintendent Irrigation Project P.O. Box 11000 Yuma, AZ 85366 Telephone: (520) 782–1202

San Carlos Bryan Bowker, Project Manager Irrigation Project Carl Christensen, Supervisory General Engineer Joint Works P.O. Box 250 Coolidge, AZ 85228 Telephone: (520) 723–6216

San Carlos Cecilia Martinez, Superintendent Irrigation Project Joe Revak, Supervisory General Engineer Indian Works Pima Agency, Land Operations P.O. Box 8 Sacaton, AZ 85247 Telephone: (520) 562–3326 Telephone: (520) 562–3372

Uintah Daniel Picard, Superintendent Irrigation Project Lynn Hansen, Irrigation Manager P.O. Box 130 Fort Duchesne, UT 84026 Telephone: (435) 722–4300 Telephone: (435) 722–4341

Walker River Athena Brown, Superintendent Irrigation Project 311 E. Washington Street Carson City, NV 89701 Telephone: (775) 887–3500

What irrigation assessments or charges where we recover costs of applicable. An asterisk immediately are proposed for adjustment by this administering, operating, maintaining, following the name of the project notes notice? and rehabilitating them. The table also the irrigation projects where rates are The rate table below contains the contains the proposed rates for the 2009 proposed for adjustment. current rates for all irrigation projects season and subsequent years where

Final Final Proposed Project name Rate category 2008 rate 2009 rate 2010 rate

Northwest Region Rate Table

Flathead Irrigation Project * (See Note #1) Basic per acre—A ...... $23.45 $23.45 $23.45 Basic per acre—B ...... 10.75 10.75 11.75 Minimum Charge per tract ...... 65.00 65.00 65.00 Fort Hall Irrigation Project * ...... Basic per acre ...... 31.00 40.50 To be determined. Minimum Charge per tract ...... 27.00 30.00 Fort Hall Irrigation Project—Minor Units * .. Basic per acre ...... 21.00 21.00 Minimum Charge per tract ...... 27.00 30.00 Fort Hall Irrigation Project—Michaud * ...... Basic per acre ...... 39.75 41.50 Pressure per acre ...... 55.50 58.00 Minimum Charge per tract ...... 27.00 30.00 Minimum Charge for farm unit/land tracts 14.00 15.00 up to one acre. Farm unit/land tracts over one acre—per 14.00 15.00 acre. Wapato Irrigation Project—Toppenish/ Minimum Charge for per tract ...... 14.00 15.00 Simcoe Units *. Basic per acre ...... 14.00 15.00 Wapato Irrigation Project—Ahtanum Minimum Charge per tract ...... 14.00 15.00 Units *. Basic per acre ...... 14.00 15.00 Wapato Irrigation Project—Satus Unit * ..... Minimum Charge for per tract ...... 55.00 58.00 ‘‘A’’ Basic per acre ...... 55.00 58.00 ‘‘B’’ Basic per acre ...... 65.00 68.00 Wapato Irrigation Project—Additional Minimum Charge per tract ...... 60.00 63.00 Works *. Basic per acre ...... 60.00 63.00 Wapato Irrigation Project—Water Rental * Minimum Charge ...... 67.00 70.00

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Final Final Proposed Project name Rate category 2008 rate 2009 rate 2010 rate

Basic per acre ...... 67.00 70.00

Rate Final Proposed Project name category 2008 rate 2009 rate

Rocky Mountain Region Rate Table

Blackfeet Irrigation Project * ...... Basic-per acre ...... $17.00 $18.00 Crow Irrigation Project—Willow Creek O&M (includes Agency, Basic-per acre ...... 20.80 20.80 Lodge Grass #1, Lodge Grass #2, Reno, Upper Little Horn, and Forty Mile Units). Crow Irrigation Project—All Others (includes Bighorn, Soap Basic-per acre ...... 20.50 20.50 Creek, and Pryor Units). Crow Irrigation Two Leggins Drainage District ...... Basic-per acre ...... 2.00 2.00 Fort Belknap Irrigation Project * ...... Basic-per acre ...... 13.88 20.00 Fort Peck Irrigation Project * ...... Basic-per acre ...... 22.00 25.75 Wind River Irrigation Project * ...... Basic-per acre ...... 16.00 18.00 Wind River Irrigation Project—LeClair District * ...... Basic-per acre ...... 17.00 19.00

Rate Final Proposed Project name category 2008 rate 2009 rate

Southwest Region Rate Table

Pine River Irrigation Project ...... Minimum Charge per tract ...... $50.00 $50.00 Basic-per acre ...... 15.00 15.00

Final Proposed Proposed Proposed Project name Rate category 2008 rate 2009 rate 2010 rate 2011 rate

Western Region Rate Table

Colorado River Irrigation Project * .... Basic per acre up to 5.75 acre-feet $47.00 $51.00 $52.50 ...... $54.00

Excess Water per acre-foot over 17.00 17.00 5.75 acre-feet. Duck Valley Irrigation Project ...... Basic per acre ...... 5.30 5.30 To be determined To be deter- mined. Fort Yuma Irrigation Project * (See Basic per acre up to 5.0 acre-feet .. 77.00 77.00 To be determined To be deter- Note #2). mined. Excess Water per acre-foot over 14.00 14.00 5.0 acre-feet. Basic per acre up to 5.0 acre-feet 28.00 77.00 (Ranch 5). San Carlos Irrigation Project (Joint Basic per acre ...... 21.00 21.00 21.00 ...... To be deter- Works) (See Note #3). mined. San Carlos Irrigation Project (Indian Basic per acre ...... 57.00 57.00 To be determined To be deter- Works). mined. Uintah Irrigation Project * ...... Basic per acre ...... 12.50 13.70 Minimum Bill ...... 25.00 25.00 Walker River Irrigation Project * ...... Indian per acre ...... 13.00 16.00 19.00 ...... 21.00 (See Note #4) ...... non-Indian per acre ...... 16.00 16.00 19.00 ...... 21.00 * Notes irrigation projects where rates are proposed for adjustment. Note #1—The 2009 rate was established by final notice published in the FEDERAL REGISTER on June 5, 2008 (Vol. 73, No. 109, page 32046). The 2010 rate is to be determined. Note #2—The O&M rate for the Fort Yuma Irrigation Project has two components. The first component is the O&M rate established by the Bu- reau of Reclamation (BOR), the owner and operator of the Project. The BOR rate for 2009 remains unchanged at 70.00/acre. The second com- ponent is for the O&M rate established by BIA to cover administrative costs including billing and collections for the Project. The 2009 BIA rate re- mains unchanged at 7.00/acre. In 2009, the BOR rate for ‘‘Ranch 5’’ will be increased from 28.00/acre to 70.00/acre, and BIA will begin charging the 7.00/acre administrative fee on ‘‘Ranch 5’’ acreage. Note #3—The 2009 rate was established by final notice published in the FEDERAL REGISTER on April 20, 2007 (Vol. 72, No. 76, page 19954). Note #4—The 2009 rate was established by final notice published in the FEDERAL REGISTER on June 5, 2008 (Vol. 73, No. 109, page 32047). The 2010 and 2011 rates are proposed through this notice.

Consultation and Coordination With organizations, BIA communicates, operation, maintenance, and Tribal Governments (Executive Order coordinates, and consults on a rehabilitation of projects that concern 13175) continuing basis with these entities on them. This is accomplished at the issues of water delivery, water individual irrigation project by Project, To fulfill its consultation availability, and costs of administration, Agency, and Regional representatives, responsibility to tribes and tribal

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as appropriate, in accordance with local they will not affect the States, the Native Claims Settlement Act will be protocol and procedures. This notice is relationship between the national issued to Kugkaktlik Limited. The lands one component of our overall government and the States, or the are in the vicinity of Kipnuk, Alaska, coordination and consultation process distribution of power and and are located in: to provide notice to, and request responsibilities among various levels of Lots 6, 8, and 10, U.S. Survey No. 11316, comments from, these entities when we government. Alaska. adjust irrigation assessment rates. Civil Justice Reform (Executive Order Containing 73.63 acres. Actions Concerning Regulations That 12988) Lot 8, U.S. Survey No. 11340, Alaska. Significantly Affect Energy Supply, In issuing this rule, the Department Containing 7.90 acres. Distribution, or Use (Executive Order has taken the necessary steps to Lots 5 and 6, U.S. Survey No. 11368, Alaska. 13211) eliminate drafting errors and ambiguity, Containing 3.30 acres. The rate adjustments will have no minimize potential litigation, and Lots 12, 13, and 14, U.S. Survey No. 11387, adverse effects on energy supply, provide a clear legal standard for Alaska. distribution, or use (including a affected conduct, as required by section Containing 67.79 acres. shortfall in supply, price increases, and 3 of Executive Order 12988. Seward Meridian, Alaska increase use of foreign supplies) should Paperwork Reduction Act of 1995 T. 1 S., R. 84 W., the proposed rate adjustments be Secs. 23 to 27, inclusive; implemented. This is a notice for rate These rate adjustments do not affect Secs. 33 and 34. adjustments at BIA-owned and operated the collections of information which Containing approximately 3,913 acres. irrigation projects, except for the Fort have been approved by the Office of T. 2 S., R. 84 W., Yuma Irrigation Project. The Fort Yuma Information and Regulatory Affairs, Secs. 3 to 10, inclusive; Irrigation Project is owned and operated Office of Management and Budget, Secs. 16, 17, and 18. by the Bureau of Reclamation with a under the Paperwork Reduction Act of Containing approximately 5,789 acres. portion serving the Fort Yuma 1995. The OMB Control Number is T. 3 S., R. 84 W., Reservation. 1076–0141 and expires August 31, 2009. Secs. 1 to 36, inclusive. Regulatory Planning and Review National Environmental Policy Act Containing approximately 16,275 acres. (Executive Order 12866) T. 4 S., R. 84 W., The Department has determined that Secs. 1 to 4, inclusive; These rate adjustments are not a these rate adjustments do not constitute Secs. 9 to 16, inclusive; significant regulatory action and do not a major Federal action significantly Secs. 21 to 28, inclusive. need to be reviewed by the Office of affecting the quality of the human Containing approximately 8,107 acres. Management and Budget under environment and that no detailed T. 2 S., R. 85 W., Executive Order 12866. statement is required under the National Secs. 7 and 8; Environmental Policy Act of 1969 (42 Secs. 11 to 15, inclusive; Regulatory Flexibility Act U.S.C. 4321–4370(d)). Secs. 16, 17, and 18; These rate adjustments are not a rule Sec. 28, those lands formerly within Native Information Quality Act for the purposes of the Regulatory allotment application F–18086, Parcel A; In developing this notice, we did not Sec. 33, those lands formerly within Native Flexibility Act because they establish ‘‘a allotment application F–18081, Parcel B. rule of particular applicability relating conduct or use a study, experiment, or Containing approximately 5,409 acres. to rates.’’ 5 U.S.C. 601(2). survey requiring peer review under the Information Quality Act (Pub. L. No. T. 3 S., R. 85 W., Unfunded Mandates Reform Act of 106–554). Sec. 6, those lands formerly within Native 1995 allotment application F–18080, Parcel B; Dated: October 22, 2008. Sec. 7, those lands formerly within Native These rate adjustments do not impose George T. Skibine, allotment application F–16585, Parcel B. an unfunded mandate on State, local, or Acting Deputy Assistant Secretary for Policy Containing approximately 160 acres. tribal governments in the aggregate, or and Economic Development—Indian Affairs. T. 4 S., R. 85 W., on the private sector, of more than $130 [FR Doc. E8–25920 Filed 10–29–08; 8:45 am] Sec. 1, those lands formerly within Native million per year. The rule does not have allotment application F–18159, Parcel B. BILLING CODE 4310–W7–P a significant or unique effect on State, Containing approximately 40 acres. local, or tribal governments or the T. 2 S., R. 86 W., private sector. Therefore, the DEPARTMENT OF THE INTERIOR Sec. 25; Department is not required to prepare a Sec. 28, those lands formerly within Native statement containing the information Bureau of Land Management allotment application F–18110, Parcel A; required by the Unfunded Mandates Secs. 34, 35, and 36. Reform Act (2 U.S.C. 1531 et seq.). [F–14875–A, F–14875–A2; AK–965–1410– Containing approximately 1,927 acres. KC–P] T. 3 S., R. 86 W., Takings (Executive Order 12630) Alaska Native Claims Selection Sec. 32, those lands formerly within Native The Department has determined that allotment application F–18089, Parcel C; these rate adjustments do not have AGENCY: Bureau of Land Management, Sec. 33, those lands formerly within Native significant ‘‘takings’’ implications. The Interior. allotment application F–18089, Parcel C. Containing approximately 78 acres. rate adjustments do not deprive the ACTION: Notice of decision approving public, State, or local governments of lands for conveyance. T. 4 S., R. 86 W., rights or property. Secs. 14, 15, and 16; SUMMARY: As required by 43 CFR Secs. 21 to 24, inclusive. Federalism (Executive Order 13132) 2650.7(d), notice is hereby given that an Containing approximately 2,121 acres. The Department has determined that appealable decision approving the Aggregating approximately 43,972 acres. these rate adjustments do not have surface estate in certain lands for A portion of the subsurface estate in significant Federalism effects because conveyance pursuant to the Alaska these lands will be conveyed to Calista

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Corporation when the surface estate is Commission has determined to review a investigation, finding that the active conveyed to Kugkaktlik Limited. The portion of the final initial determination respondents did not violate section 337. remaining lands lie within the (‘‘ID’’) issued by the presiding Specifically, he found that the vast Kuskokwim National Wildlife Range, administrative law judge (‘‘ALJ’’) on majority of accused gloves infringe renamed the Clarence Rhode National August 25, 2008, regarding whether claims 17, 18, and 19 of the ’616 patent, Wildlife Range, January 16, 1961. The there is a violation of section 337 of the but that nine accused gloves do not subsurface estate in the refuge lands Tariff Act of 1930, 19 U.S.C. * 1337, in infringe the asserted claims. He also will be reserved to the United States at the above-captioned consolidated concluded that when the patentees the time of conveyance. Notice of the investigation. amended the claims through a reissue decision will also be published four FOR FURTHER INFORMATION CONTACT: application filed more than two years times in the Tundra Drums. Michelle Walters, Office of the General after the grant of the original patent, DATES: The time limits for filing an Counsel, U.S. International Trade they improperly enlarged the scope of appeal are: Commission, 500 E Street, SW., the claims, rendering them invalid. The 1. Any party claiming a property Washington, DC 20436, telephone (202) ALJ further concluded that the claims interest which is adversely affected by 708–5468. Copies of non-confidential are invalid because the patentees filed a the decision shall have until December documents filed in connection with this defective reissue declaration when 1, 2008 to file an appeal. investigation are or will be available for applying for the reissue patent. He 2. Parties receiving service of the inspection during official business rejected other arguments of invalidity decision by certified mail shall have 30 hours (8:45 a.m. to 5:15 p.m.) in the and unenforceability. Accordingly, the days from the date of receipt to file an Office of the Secretary, U.S. ALJ concluded that respondents had not appeal. International Trade Commission, 500 E violated section 337. Parties who do not file an appeal in Street, SW., Washington, DC 20436, On September 8, 2008, complainant Tillotson filed a petition for review, as accordance with the requirements of 43 telephone (202) 205–2000. General did several respondents. On September CFR Part 4, Subpart E, shall be deemed information concerning the Commission 16, 2008, respondents filed a response to have waived their rights. may also be obtained by accessing its to complainant’s petition and ADDRESSES: A copy of the decision may Internet server at http://www.usitc.gov. complainant filed a response to be obtained from: Bureau of Land The public record for this investigation Management, Alaska State Office, 222 respondents’ petition. may be viewed on the Commission’s Having examined the record of this West Seventh Avenue, #13, Anchorage, electronic docket (EDIS) at http:// Alaska 99513–7504. investigation, including the ALJ’s ID edis.usitc.gov. Hearing-impaired and the submissions of the parties, the FOR FURTHER INFORMATION, CONTACT: The persons are advised that information on Commission has determined (1) to Bureau of Land Management by phone this matter can be obtained by review the ALJ’s claim construction of at 907–271–5960, or by e-mail at contacting the Commission’s TDD the term ‘‘predetermined pressure,’’ (2) [email protected]. Persons terminal on (202) 205–1810. to review the ALJ’s determination of who use a telecommunication device SUPPLEMENTARY INFORMATION: The invalidity for a broadening reissue, (3) (TTD) may call the Federal Information Commission instituted Inv. No. 337-TA– to review the ALJ’s determination of Relay Service (FIRS) at 1–800–877– 608 on July 6, 2007, based on a invalidity for a deficient reissue 8330, 24 hours a day, seven days a complaint filed by Tillotson Corporation declaration, (4) to review the ALJ’s week, to contact the Bureau of Land d.b.a. Best Manufacturing Company determination that the claims are not Management. (‘‘Tillotson’’). The complaint alleged invalid for failure to disclose a best Robin Middleton, violations of section 337 of the Tariff mode, (5) to review the ALJ’s Land Law Examiner, Land Transfer Act of 1930 (19 U.S.C. **1337) in the determination that the claims are not Adjudication II. importation into the United States, the invalid for lack of enablement, and (6) [FR Doc. E8–26027 Filed 10–29–08; 8:45 am] sale for importation, and the sale within not to review the ALJ’s determinations the United States after importation of BILLING CODE 4310–JA–P relating to any of the remaining issues certain nitrile gloves by reason of on violation. Finally, the Commission infringement of various claims of United has determined to deny complainant’s States Patent No. Re. 35,616 (‘‘the ’616 INTERNATIONAL TRADE request for oral argument. patent’’). The complaint named over The parties should brief their COMMISSION thirty respondents. The Commission positions on the issues on review with [Investigation No. 337–TA–608; instituted a second investigation, Inv. reference to the applicable law and the Investigation No. 337–TA–612] No. 337–TA–612, on August 22, 2007, evidentiary record. In connection with based on a complaint filed by Tillotson. its review, the Commission is Notice of Commission Determination That complaint also alleged violations particularly interested in responses to to Review-in-Part a Final Determination of section 337 in the importation into the following questions: on Violation of Section 337; Schedule the United States, the sale for 1. Before the ALJ and in its petition for Filing Written Submissions on the importation, and the sale within the for review, complainant asserted that Issues Under Review and on Remedy, United States after importation of the term ‘‘predetermined pressure’’ the Public Interest, and Bonding; In the certain nitrile gloves by reason of means ‘‘the amount of pressure first Matter of Certain Nitrile Gloves; and In infringement of various claims of the exerted on the hand by the glove after the Matter of Certain Nitrile Rubber ’616 patent and named seven the glove is donned.’’ Nevertheless, Gloves respondents. On September 19, 2007, complainant also states in its petition AGENCY: U.S. International Trade the ALJ consolidated Inv. No. 337–TA– that the ‘‘predetermined pressure’’ must Commission. 608 with Inv. No. 337–TA–612. be determined in advance—a limitation ACTION: Notice. On August 25, 2008, the ALJ issued a that is omitted from its proposed claim final ID and recommended construction. Assuming that the SUMMARY: Notice is hereby given that determination on remedy and bonding ‘‘predetermined pressure’’ must be the U.S. International Trade in the above-referenced consolidated determined in advance, what does it

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mean to determine the pressure in pressure’’ (regardless of their meanings) would be entitled to enter the United advance? was a broadening amendment, were the States under bond, in an amount a. Please explain the meaning of the declarations deficient? determined by the Commission and word ‘‘determine.’’ Please submit copies 9. Was the amendment a small change prescribed by the Secretary of the of any dictionary entries that you rely in language that did not affect the scope Treasury. The Commission is therefore upon for the term ‘‘determine’’ and any of claim 1? If so, did the change need interested in receiving submissions dictionary entries that you relied upon to be explained in the reissue concerning the amount of the bond that before the ALJ for the term declaration? should be imposed if a remedy is ‘‘predetermine.’’ 10. Regarding the issue of enablement, ordered. b. Must a person select a particular what must respondents establish in Written Submissions: The parties to pressure to be exerted on the hand, for order to prove that the claims are not the investigation are requested to file example, 100 psi, and then make the enabled? written submissions on the issues glove and test it to ensure that it meets 11. Were any articles or references identified in this notice. Parties to the the 100 psi requirement? If so, is a submitted into evidence that discuss the investigation, interested government mental step, such as this, appropriate in use of non-carboxylated nitrile agencies, and any other interested a product claim? butadiene rubber in thin films? parties are encouraged to file written c. Or is it enough to actually measure In connection with the final submissions on the issues of remedy, the pressure in psi, for example, before disposition of this investigation, the the public interest, and bonding. Such putting the glove on the hand? For Commission may (1) issue an order that submissions should address the purposes of this question, assume that could result in the exclusion of the recommended determination by the ALJ the claims require that the subject articles from entry into the on remedy and bonding. Complainant predetermined pressure be determined United States, and/or (2) issue one or and the Commission investigative in advance of initially exerting the more cease and desist orders that could attorney are also requested to submit pressure on the hand. result in a respondent being required to proposed remedial orders for the d. Or is it enough that the pressure is cease and desist from engaging in unfair Commission’s consideration. fixed by ‘‘basic physics’’ when the glove acts in the importation and sale of such Complainant is also requested to state is made? Can the pressure in fact be articles. Accordingly, the Commission is the dates that the patent expires and the calculated from the physical interested in receiving written HTSUS numbers under which the characteristics of the glove and the submissions that address the form of accused products are imported. The hand? remedy, if any, that should be ordered. written submissions and proposed e. How do the intrinsic and extrinsic If a party seeks exclusion of an article remedial orders must be filed no later evidence support your responses? from entry into the United States for than close of business on November 10, 2. State precisely how your claim purposes other than entry for 2008. Reply submissions must be filed construction of the term ‘‘predetermined consumption, the party should so no later than the close of business on pressure’’ differs from the ALJ’s claim indicate and provide information November 17, 2008. The written construction. establishing that activities involving submissions must be no longer than 60 3. Regarding the issue of broadening other types of entry either are adversely pages and the reply submissions must reissue, if the ‘‘predetermined pressure’’ affecting it or likely to do so. For be no longer than 30 pages. No further is determined in advance by selecting a background, see In the Matter of Certain submissions on these issues will be specific pressure and then making the Devices for Connecting Computers via permitted unless otherwise ordered by glove, were the claims broadened when Telephone Lines, Inv. No. 337–TA–360, the Commission. the claims were amended during USITC Pub. No. 2843 (December 1994) Persons filing written submissions reissue? (Commission Opinion). must file the original document and 12 4. If the ‘‘predetermined pressure’’ is If the Commission contemplates some true copies thereof on or before the determined in advance by measuring form of remedy, it must consider the deadlines stated above with the Office the pressure in advance, were the claims effects of that remedy upon the public of the Secretary. Any person desiring to broadened when the claims were interest. The factors the Commission submit a document to the Commission amended during reissue? will consider include the effect that an in confidence must request confidential 5. If the ‘‘predetermined pressure’’ is exclusion order and/or cease and desist treatment unless the information has determined in advance by means of the orders would have on (1) the public already been granted such treatment properties of the glove, i.e., basic health and welfare, (2) competitive during the proceedings. All such physics, were the claims broadened conditions in the U.S. economy, (3) U.S. requests should be directed to the when the claims were amended during production of articles that are like or Secretary of the Commission and must reissue? directly competitive with those that are include a full statement of the reasons 6. Please analyze these three scenarios subject to investigation, and (4) U.S. why the Commission should grant such (3, 4, and 5) under the hypothetical consumers. treatment. See 19 CFR 210.6. Documents glove test. The Commission is therefore for which confidential treatment by the 7. Has the United States Court of interested in receiving written Commission is sought will be treated Appeals for the Federal Circuit ever submissions that address the accordingly. All nonconfidential written applied the omitted limitation test in aforementioned public interest factors submissions will be available for public the broadening reissue context? in the context of this investigation. inspection at the Office of the Secretary. 8. Regarding the issue of the reissue If the Commission orders some form The authority for the Commission’s declaration, assuming that Dethmers of remedy, the United States Trade determination is contained in section Manufacturing Co., Inc. v. Automatic Representative, as delegated by the 337 of the Tariff Act of 1930, as Equipment Manufacturing Co., 272 F.3d President, has 60 days to approve or amended (19 U.S.C. 1337), and in 1365 (Fed. Cir. 2001), and 37 CFR disapprove the Commission’s action. sections 210.42–46 and 210.50 of the 1.175(a) (1996) control and further See Presidential Memorandum of July Commission’s Rules of Practice and assuming that the change from 21, 2005, 70 FR 43251 (July 26, 2005). Procedure (19 CFR 210.42–46 and ‘‘predetermined pressure’’ to ‘‘initial During this period, the subject articles 210.50).

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Issued: October 24, 2008. Department of Justice, Washington, DC Remarks by DOJ and EPA regarding By order of the Commission. 20044–7611 or by faxing or e-mailing a implementation of the provisions of the Marilyn R. Abbott, request to Tonia Fleetwood diesel engine consent decrees. Secretary to the Commission. ([email protected]), fax no. 2. Public comments and questions. [FR Doc. E8–25859 Filed 10–29–08; 8:45 am] (202) 514–0097, phone confirmation FOR FURTHER INFORMATION CONTACT: BILLING CODE 7020–02–P number (202) 514–1547. In requesting a Anne Wick, EPA Diesel Engine Consent copy from the Consent Decree Library, Decree Coordinator, U.S. Environmental please enclose a check in the amount of Protection Agency (Mail Code 2242A), DEPARTMENT OF JUSTICE $6.75 (25 cents per page reproduction 1200 Pennsylvania Avenue N.W., cost) payable to the U.S. Treasury. Washington, DC 20460, e-mail: Notice of Lodging of Proposed Robert Brook, [email protected]. Settlement Agreement Under the Assistant Section Chief, Environmental Comprehensive Environmental Karen S. Dworkin, Enforcement Section, Environment and Assistant Chief, Environment & Natural Response, Compensation and Liability Natural Resources Division. Act (CERCLA) Resources Division, Environmental [FR Doc. E8–25860 Filed 10–29–08; 8:45 am] Enforcement Section. Notice is hereby given that on October BILLING CODE 4410–15–P [FR Doc. E8–25888 Filed 10–29–08; 8:45 am] 24, 2008, a proposed Settlement BILLING CODE 4410–15–P Agreement regarding the Precision National Plating Services Superfund DEPARTMENT OF JUSTICE Site (the Site), was filed with the United DEPARTMENT OF JUSTICE States District Court for the Middle Notice of Public Meeting by District of Pennsylvania in United Teleconference Concerning Heavy Drug Enforcement Administration Duty Diesel Engine Consent Decrees States v. Precision National Plating [OMB Number 1117–0023] Services, Inc., Civil No. 3:08–CV–1946 The Department of Justice and the (M.D. Penn.). Under the terms of the Environmental Protection Agency will Agency Information Collection proposed Consent Decree, Precision will hold a public meeting on November 19, Activities: Proposed Collection; pay EPA $987,809.25 for unreimbursed 2008 at 10 a.m. eastern time by Comments Requested response costs incurred at the Site from teleconference. The subject of the April 29, 2004 through August 18, 2007. ACTION: 30-Day Notice of Information meeting will be implementation of the In addition, Precision has agreed to Collection Under Review, Import/Export provisions of the seven consent decrees reimburse EPA for future response costs Declaration for List I and List II signed by the United States and diesel associated with the Site, and Precision Chemicals; DEA Form 486. engine manufacturers and entered by will continue work to clean up the Site the United States District Court for the pursuant to a Unilateral Administrative The Department of Justice (DOJ), Drug District of Columbia on July 1, 1999 Order issued by EPA in April 1998. Enforcement Administration (DEA) has The Department of Justice will receive (United States v. Caterpillar, Case No. submitted the following information comments relating to the proposed 1:98CV02544; United States v. Navistar collection request to the Office of Agreement for a period of thirty (30) International Transportation Management and Budget (OMB) for days from the date of this publication. Corporation, Case No. 1:98CV02545; review and approval in accordance with Comments should be addressed to the United States v. Cummins Engine the Paperwork Reduction Act of 1995. Assistant Attorney General, Company, Case No. 1:98CV02546; The proposed information collection is Environment and Natural Resources United States v. Detroit Diesel published to obtain comments from the Division, and either e-mailed to Corporation, Case No. 1:98CV02548; public and affected agencies. This [email protected] or United States v. Volvo Truck proposed information collection was mailed to P.O. Box 7611, U.S. Corporation, Case No. 1:98CV02547; previously published in the Federal Department of Justice, Washington, DC United States v. Mack Trucks, Inc., Case Register at 73 FR 50055 on August 25, 20044–7611, and should refer to United No. 1:98CV01495; and United States v. 2008, allowing for a 60-day comment States v. Precision National Plating Renault Vehicles Industries, S.A., Case period. Services, Inc., DJ Ref. No. 90–11–3– No. 1:98CV02543). In supporting entry The purpose of this notice is to allow 07298/1. by the court of the decrees, the United for an additional 30 days for public The proposed Agreement may be States committed to meet periodically comment until December 1, 2008. This examined at the Office of the United with states, industry groups, process is conducted in accordance with States Attorney for the Middle District environmental groups, and concerned 5 CFR 1320.10. of Pennsylvania, William J. Nealon citizens to discuss consent decree Written comments and/or suggestions Federal Building and Courthouse, 235 implementation issues. Future meetings regarding the items contained in this N. Washington Ave., Suite 311, will be announced here and on EPA’s notice, especially the estimated public Scranton, PA 18503; at the office of the Diesel Engine Settlement Web site at: burden and associated response time, Environmental Protection Agency http://www.epa.gov/compliance/ should be directed to the Office of Region 3, 1650 Arch Street, resources/cases/civil/caa/diesel/ Management and Budget, Office of Philadelphia, PA 19103. During the index.html. Information and Regulatory Affairs, public comment period, the proposed Interested parties should contact the Attention Department of Justice Desk Agreement may also be examined on the Environmental Protection Agency at the Officer, Washington, DC 20503. following Department of Justice Web address listed below prior to the Additionally, comments may be site, http://www.usdoj.gov/enrd/ meeting to reserve a telephone line and submitted to OMB via facsimile to (202) Consent_Decrees.html. A copy of the receive instructions for the call. 395–5806. proposed Agreement may also be Agenda Written comments and suggestions obtained by mail from the Consent from the public and affected agencies Decree Library, P.O. Box 7611, U.S. 1. Panel Remarks—10 a.m. concerning the proposed collection of

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information are encouraged. Your e.g., permitting electronic submission of Abstract: Persons importing, comments should address one or more responses. exporting, and conducting international of the following four points: transactions with List I and List II Overview of Information Collection • Evaluate whether the proposed chemicals must notify DEA of those 1117–0023 collection of information is necessary transactions in advance of their for the proper performance of the (1) Type of Information Collection: occurrence, including information functions of the agency, including Extension of a Currently Approved regarding the person(s) to whom the whether the information will have Collection. chemical will be transferred and the practical utility; (2) Title of the Form/Collection: quantity to be transferred. For • Evaluate the accuracy of the Import/Export Declaration for List I and importations, persons must also provide agencies estimate of the burden of the List II Chemicals. return declarations, confirming the date proposed collection of information, (3) Agency form number, if any, and of the importation and transfer, and the including the validity of the the applicable component of the amounts of the chemical transferred. methodology and assumptions used; Department sponsoring the collection: This information is used to prevent • Enhance the quality, utility, and Form number: DEA Form 486. shipments not intended for legitimate clarity of the information to be Component: Office of Diversion purposes. collected; and Control, Drug Enforcement (5) An estimate of the total number of • Minimize the burden of the Administration, U.S. Department of respondents and the amount of time collection of information on those who Justice. estimated for an average respondent to are to respond, including through the (4) Affected public who will be asked respond: A respondent may submit use of appropriate automated, or required to respond, as well as a brief multiple responses. The below table electronic, mechanical, or other abstract: presents information regarding the technological collection techniques or Primary: Business or other for-profit. number of respondents, responses, and other forms of information technology, Other: None. associated burden hours:

Number of Number of respondents responses Average time per response Total (hours)

Form 486 (export) ...... 193 10,327 0.2 hour (12 minutes) ...... 2,065.4 Form 486 (Export Return Declaration) ...... 193 10,327 0.08 hour (5 minutes) ...... 860.6 Form 486 (import) ...... 120 1,618 0.25 hour (15 minutes) ...... 404.5 Form 486 (import return declaration).* 120 1,780 0.08 hour (5 minutes) ...... 148.3 Form 486 (international transaction) ...... 14 14 0.2 hour (12 minutes) ...... 2.8 Form 486 (international transaction return 14 14 0.08 hour (5 minutes) ...... 1.2 declaration). Quarterly reports for imports of acetone, 2- 110 440 0.5 hour (30 minutes) ...... 220 butanone, and toluene.

Total ...... 193 ...... 3,702.8 * DEA assumes 10% of all imports will not be transferred in the first thirty days and will necessitate submission of a subsequent return declaration.

(6) An estimate of the total public DEPARTMENT OF LABOR Interested parties are encouraged to burden (in hours) associated with the send comments to the Office of collection: 3,703 annual burden hours. Office of the Secretary Information and Regulatory Affairs, Attn: OMB Desk Officer for the If additional information is required Submission for OMB Review: contact: Lynn Bryant, Department Department of Labor—ETA, Office of Comment Request Management and Budget, Room 10235, Clearance Officer, United States Washington, DC 20503, Telephone: Department of Justice, Justice October 24, 2008. 202–395–7316/Fax: 202–395–6974 Management Division, Policy and The Department of Labor (DOL) (these are not toll-free numbers), E-mail: Planning Staff, Patrick Henry Building, hereby announces the submission of the [email protected] within Suite 1600, 601 D Street, NW., following public information collection 30 days from the date of this publication Washington, DC 20530. request (ICR) to the Office of in the Federal Register. In order to Dated: October 24, 2008. Management and Budget (OMB) for ensure the appropriate consideration, Lynn Bryant, review and approval in accordance with comments should reference the OMB the Paperwork Reduction Act of 1995 Control Number (see below). Department Clearance Officer, PRA, U.S. (Pub. L. 104–13, 44 U.S.C. chapter 35). The OMB is particularly interested in Department of Justice. A copy of this ICR, with applicable comments which: [FR Doc. E8–25927 Filed 10–29–08; 8:45 am] supporting documentation; including • BILLING CODE 4410–09–P among other things a description of the Evaluate whether the proposed likely respondents, proposed frequency collection of information is necessary of response, and estimated total burden for the proper performance of the may be obtained from the RegInfo.gov functions of the agency, including Web site at http://www.reginfo.gov/ whether the information will have public/do/PRAMain or by contacting practical utility; Mary Beth Smith-Toomey on 202–693– • Evaluate the accuracy of the 4223 (this is not a toll-free number)/e- agency’s estimate of the burden of the mail: [email protected]. proposed collection of information,

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including the validity of the providing notice of a revision in the Estimates report. As a result, the U.S. methodology and assumptions used; Fiscal Year (FY) 2008 Tariff-Rate Quota Government consulted with the • Enhance the quality, utility, and (TRQ) allocation for imported refined Government of Mexico as to whether it clarity of the information to be sugar for the period August 13 through intends to fill its allocated portion of the collected; and December 31, 2008. The USTR is re- August 2008 increase. The Government • Minimize the burden of the allocating the portion of the increase in of Mexico has informed the Government collection of information on those who the refined sugar TRQ initially allocated of the United States that Mexico will are to respond, including through the to Mexico on August 13, 2008 to the continue to export sugar under the duty- use of appropriate automated, global portion of the refined sugar TRQ, free access provided by the North electronic, mechanical, or other subject to certain conditions. American Free Trade Agreement and technological collection techniques or DATES: Effective Date: October 30, 2008. thus will not use the portion of the other forms of information technology, ADDRESSES: Inquiries may be mailed or WTO refined sugar TRQ allocated to e.g., permitting electronic submission of delivered to Leslie O’Connor, Director of Mexico and it is available for re- responses. Agricultural Affairs, Office of allocation by the United States. Agency: Employment Training Agricultural Affairs, Office of the United The USTR hereby re-allocates that Administration. States Trade Representative, 600 17th portion, 68,278 MTRV, to the global Type of Review: Revision of an Street, NW., Washington, DC 20508. refined sugar TRQ, which may be supplied by any country on a first-come, existing OMB Control Number. FOR FURTHER INFORMATION CONTACT: first-served basis, subject to any other Title of Collection: Title 29 CFR Part Leslie O’Connor, Office of Agricultural 29—Labor Standards for the Registration provision of law. With this reallocation, Affairs, telephone: 202–395–6127 or the global portion of the FY 2009 of Apprenticeship Programs. facsimile: 202–395–4579. OMB Control Number: 1205–0223. refined sugar tariff-rate quota now SUPPLEMENTARY INFORMATION: Pursuant Agency Form Number: ETA–671. amounts to 239,245 MTRV. No to Additional U.S. Note 5 to Chapter 17 Affected Public: Private Sector— certificate of quota eligibility is required of the Harmonized Tariff Schedule of Business or other for-profits. for sugar entering under this global the United States (HTS), the United Total Estimated Number of tariff-rate quota. States maintains a tariff-rate quota for Respondents: 248,728. On October 27, 2008, the Secretary of imports of refined sugar. Agriculture, pursuant to his authority Total Estimated Annual Burden Section 404(d)(3) of the Uruguay Hours: 26,757. under 15 CFR pt. 2011.110 to the set Round Agreements Act (19 U.S.C. terms, limitations, and conditions for Total Estimated Annual Costs Burden: 3601(d)(3)) authorizes the President to $0. entry of refined sugar such as this, allocate the in-quota quantity of a tariff- determined that 28,278 MTRV of the re- Description: Title 29 CFR part 29 sets rate quota for any agricultural product forth labor standards to safeguard the allocated portion of the refined sugar among supplying countries or customs TRQ shall be eligible to enter upon welfare of apprentices and to extend the areas. The President delegated this application of such standards by publication of a Federal Register notice authority to the USTR under by the USTR. Of the remainder, 10,000 prescribing policies and procedures Presidential Proclamation 6763 (60 FR concerning the registration of an MTRV may enter 14 days after 1007). Pursuant to this Proclamation, publication; 10,000 MTRV 28 days after apprenticeship. The Form ETA 671 the USTR may modify previously collects the information necessary for publication; 10,000 MTRV 42 days after established allocations as he or she publication; and 10,000 MTRV 56 days the Department to enforce the finds appropriate in carrying out the safeguards set forth in the after publication. If any of these dates international rights and obligations of fall on a weekend or Federal holiday, aforementioned Standard. The Form the United States and promoting the consists of two sections: Section I the TRQ will open on the next business economic interests of the United States. day. records the sponsor’s information and In response to tight market Section II is for the apprentice’s conditions, on August 6, 2008, the Susan C. Schwab, information. For additional information, Secretary of Agriculture increased the United States Trade Representative. see related notice published at Volume in-quota quantity of the tariff-rate quota [FR Doc. E8–25937 Filed 10–29–08; 8:45 am] 73 FR 36903 on June 30, 2008. for refined sugar for FY 2008 by 272,155 BILLING CODE 3190–W9–P Darrin A. King, metric tons raw value (MTRV) Departmental Clearance Officer. (equivalent of 300,000 short tons raw [FR Doc. E8–25902 Filed 10–29–08; 8:45 am] value) and extended the period in SECURITIES AND EXCHANGE which the sugar could be entered until BILLING CODE 4510–FR–P COMMISSION December 31, 2008. On August 13, 2008, the USTR Proposed Collection; Comment allocated this TRQ volume, with a total Request OFFICE OF THE UNITED STATES of 40,000 MTRV allocated to Canada, TRADE REPRESENTATIVE 68,278 MTRV allocated to Mexico, and Upon Written Request, Copies Available the remaining 163,877 MTRV allocated From: Securities and Exchange Revised Fiscal Year 2008 Tariff-Rate Commission, Office of Investor Quota Allocations for Refined Sugar— to a global tariff-rate quota, which may be supplied by any country on a first- Education and Advocacy, Re-allocation of Refined Sugar Washington, DC 20549–0213. Previously Assigned to Mexico come, first-served basis, subject to any other provision of law. Extension: AGENCY: Office of the United States The U.S. market for sugar, particularly Rule 6e–2 and Form N–6EI–1; SEC File No. Trade Representative. for refined sugar, remains tight as 270–177; OMB Control No. 3235–0177. ACTION: Notice. shown by the historically low 6.0 Notice is hereby given that, pursuant percent ending stocks-to-use ratio for FY to the Paperwork Reduction Act of 1995 SUMMARY: The Office of the United 2009 projected in USDA’s October (44 U.S.C. 3501 et seq.), the Securities States Trade Representative (USTR) is World Agricultural Supply and Demand and Exchange Commission (the

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‘‘Commission’’) is soliciting comments (b) the accuracy of the agency’s estimate estimate that it takes 2 hours per on the collection of information of the burden of the proposed collection response for an issuer to draft a notice summarized below. The Commission of information; (c) ways to enhance the to directors and executive officers for a plans to submit this existing collection quality, utility, and clarity of the total annual burden of 2,460 hours. The of information to the Office of information to be collected; and (d) issuer prepares 75% of the 2,460 annual Management and Budget for extension ways to minimize the burden of the burden hours for a total reporting and approval. collection of information on burden of (1,230 × 2 × .75) 1,845 hours. Rule 6e–2 (17 CFR 270.6e–2) under respondents, including through the use In addition, we estimate that an issuer the Investment Company Act of 1940 of automated collection techniques or distributes a notice to five directors and (‘‘Act’’) (15 U.S.C. 80a) is an exemptive other forms of information technology. executive officers at an estimated 5 rule that permits separate accounts, Consideration will be given to minutes per notice (1,230 blackout formed by life insurance companies, to comments and suggestions submitted in period × 5 notices × 5 minutes) for a fund certain variable life insurance writing within 60 days of this total reporting burden of 512 hours. The products. The rule exempts such publication. combined annual reporting burden is separate accounts from the registration Please direct your written comments (1,845 hours + 512 hours) 2,357 hours. requirements under the Act, among to Lewis W. Walker, Acting Director/ Written comments are invited on: (a) others, on condition that they comply CIO, Securities and Exchange Whether this collection of information with all but certain designated Commission, C/O Shirley Martinson, is necessary for the proper performance provisions of the Act and meet the other 6432 General Green Way, Alexandria, of the functions of the agency, including requirements of the rule. The rule sets VA 22312; or send an e-mail to: whether the information will have forth several information collection [email protected]. practical utility; (b) the accuracy of the requirements. agency’s estimate of the burden imposed Dated: October 22, 2008. Rule 6e–2 provides a separate account by the collection of information; (c) with an exemption from the registration Florence E. Harmon, ways to enhance the quality, utility, and provisions of section 8(a) of the Act if Acting Secretary. clarity of the information collected; and the account files with the Commission [FR Doc. E8–25863 Filed 10–29–08; 8:45 am] (d) ways to minimize the burden of the Form N–6EI–1, a notification of claim of BILLING CODE 8011–01–P collection of information on exemption. respondents, including through the use The rule also exempts a separate of automated collection techniques or account from a number of other sections SECURITIES AND EXCHANGE other forms of information technology. of the Act, provided that the separate COMMISSION Consideration will be given to account makes certain disclosure in its comments and suggestions submitted in registration statements, reports to Proposed Collection; Comment Request writing within 60 days of this contractholders, proxy solicitations, and publication. submissions to state regulatory Upon Written Request, Copies Available Please direct your written comments authorities, as prescribed by the rule. From: Securities and Exchange to Lewis W. Walker, Acting Director/ Paragraph (b)(9) of rule 6e–2 provides Commission, Office of Investor CIO, Securities and Exchange an exemption from the requirements of Education and Advocacy, Commission, C/O Shirley Martinson, section 17(f) of the Act and imposes a Washington, DC 20549–0213. 6432 General Green Way, Alexandria, reporting burden and certain other Extension: Virginia 22312; or send an e-mail to: conditions. Section 17(f) requires that [email protected]. every registered management company Regulation BTR; OMB Control No. 3235– meet various custody requirements for 0579; SEC File No. 270–521. Dated: October 22, 2008. its securities and similar investments. Notice is hereby given that pursuant Florence E. Harmon, Paragraph (b)(9) applies only to to the Paperwork Reduction Act of 1995 Acting Secretary. management accounts that offer life (44 U.S.C. 3501 et seq.) the Securities [FR Doc. E8–25866 Filed 10–29–08; 8:45 am] insurance contracts subject to rule 6e– and Exchange Commission BILLING CODE 8011–01–P 2. (‘‘Commission’’) is soliciting comments Since 2005, there have been no filings on the collection of information under paragraph (b)(9) of rule 6e–2 by summarized below. The Commission SECURITIES AND EXCHANGE management accounts. Therefore, since plans to submit this existing collection COMMISSION 2005, there has been no cost or burden of information to the Office of to the industry regarding the Management and Budget for extension Proposed Collection; Comment information collection requirements of and approval. Request paragraph (b)(9) of rule 6e–2. In Regulation Blackout Trade Restriction Upon Written Request, Copies Available addition, there have been no filings of (‘‘Regulation BTR’’) (17 CFR 245.100– From: Securities and Exchange Form N–6EI–1 by separate accounts 245.104) clarifies the scope and Commission, Office of Investor since 2005. Therefore, there has been no application of Section 306(a) of the Education and Advocacy, cost or burden to the industry since that Sarbanes-Oxley Act of 2002 (‘‘Act’’) (15 Washington, DC 20549–0213. time. The Commission requests U.S.C. 7244(a)). Section 306(a)(6) (15 Extension: authorization to maintain an inventory U.S.C. 7244(a)(6)) of the Act requires an Regulation G; OMB Control No. 3235– of one burden hour for administrative issuer to provide timely notice to its 0576; SEC File No. 270–518. purposes. directors and executive officers and to Written comments are invited on: (a) the Commission of the imposition of a Notice is hereby given that pursuant Whether the proposed collection of blackout period that would trigger the to the Paperwork Reduction Act of 1995 information is necessary for the proper statutory trading prohibition of Section (44 U.S.C. 3501 et seq.) the Securities performance of the functions of the 306(a)(1)(15 U.S.C. 7244(a)(1)). and Exchange Commission agency, including whether the Approximately 1,230 issuers file (‘‘Commission’’) is soliciting comments information shall have practical utility; Regulation BTR notices annually. We on the collection of information

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summarized below. The Commission SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s plans to submit this existing collection COMMISSION Statement of the Purpose of, and of information to the Office of Statutory Basis for, the Proposed Rule Management and Budget for extension [Release No. 34–58833; File No. SR–NYSE– Change 2008–106] and approval. 1. Purpose Regulation G (17 CFR 244.100– Self-Regulatory Organizations; New This proposal is to amend NYSE Rule 244.102) under the Securities Exchange York Stock Exchange LLC; Notice of 86 as part of the Bonds Relocation. Act of 1934 (the ‘‘Exchange Act’’) (15 Filing and Immediate Effectiveness of U.S.C. 78a et seq.) requires registrants Proposed Rule Change To Eliminate Background that publicly disclose material Subscribership to NYSE Bonds and As described more fully in a related information that includes a non-GAAP Provide That All NYSE Members and rule filing, the Exchange’s parent financial measure to provide a Member Organizations Are Eligible To company, NYSE Euronext, acquired The reconciliation to the most directly Access NYSE Bonds Amex Membership Corporation comparable GAAP financial measure. (‘‘AMC’’) pursuant to an Agreement and October 22, 2008. Regulation G implemented the Plan of Merger, dated January 17, 2008 Pursuant to Section 19(b)(1) of the requirements of Section 401 of the (the ‘‘Merger’’). In connection with the Securities Exchange Act of 1934 Sarbanes-Oxley Act of 2002 (15 U.S.C. Merger, the American Stock Exchange (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 LLC (‘‘Amex’’), a subsidiary of AMC, 7261; 78m). We estimate that notice is hereby given that on October became a subsidiary of NYSE Euronext approximately 14,000 public companies 17, 2008, NYSE Alternext U.S. LLC called NYSE Alternext U.S. LLC,3 and must comply with Regulation G (‘‘NYSE Alternext’’ or ‘‘Exchange’’) filed will continue to operate as a national approximately six times a year for a with the Securities and Exchange securities exchange registered under total of 84,000 responses annually. We Commission (‘‘Commission’’) the Section 6 of the Act.4 The effective date estimated that it takes approximately .5 proposed rule change as described in of the Merger was October 1, 2008. hours per response (84,000 x .5 hours) Items I and II below, which Items have In connection with the Merger, NYSE for a total reporting burden of 42,000 been prepared by the Exchange. The Alternext will relocate all equities hours annually. Commission is publishing this notice to trading conducted on the NYSE Written comments are invited on: (a) solicit comments on the proposed rule Alternext legacy trading systems and Whether this collection of information change from interested persons. facilities located at 86 Trinity Place, New York, New York (the ‘‘86 Trinity is necessary for the proper performance I. Self-Regulatory Organization’s of the functions of the agency, including Trading Systems’’), to trading systems Statement of the Terms of Substance of and facilities located at 11 Wall Street, whether the information will have the Proposed Rule Change New York, New York (the ‘‘Equities practical utility; (b) the accuracy of the The Exchange proposes to amend Relocation’’). The NYSE Alternext agency’s estimate of the burden imposed NYSE Rule 86 as part of the relocation equity trading systems and facilities at by the collections of information; (c) of the trading of certain debt securities 11 Wall Street (the ‘‘NYSE Alternext ways to enhance the quality, utility, and (‘‘Bonds Relocation’’) conducted on Trading Systems’’) will be operated by clarity of the information collected; and NYSE Alternext U.S. LLC’s (‘‘NYSE the Exchange on behalf of NYSE (d) ways to minimize the burden of the Alternext’’) legacy trading systems to an Alternext. Similarly, NYSE Alternext collection of information on automated trading platform based on will relocate all options trading respondents, including through the use NYSE BondsSM that will be operated by currently conducted on the 86 Trinity of automated collection techniques or the Exchange on behalf of NYSE Trading Systems to new facilities to be other forms of information technology. Alternext (‘‘NYSE Alternext Bonds’’). located at 11 Wall Street, which will use Consideration will be given to The text of the proposed rule change is a trading system based on the options comments and suggestions submitted in available on the Exchange’s Web site at trading system used by NYSE Arca, Inc. writing within 60 days of this http://www.nyse.com, at the Exchange’s (‘‘NYSE Arca’’) (the ‘‘Options publication. principal office, and at the Public Relocation’’).5 Reference Room of the Commission. Post-Merger, all NYSE Alternext Please direct your written comments members and member organizations that to Lewis W. Walker, Acting Director/ II. Self-Regulatory Organization’s were authorized to trade on NYSE CIO, Securities and Exchange Statement of the Purpose of, and Alternext before the Merger will receive Commission, c/o Shirley Martinson, Statutory Basis for, the Proposed Rule trading permits (referred to as ‘‘86 6432 General Green Way, Alexandria, Change Trinity Permits’’) that authorize Virginia 22312; or send an e-mail to: In its filing with the Commission, the continued trading on the 86 Trinity _ PRA [email protected]. self-regulatory organization included Trading Systems. Holders of the 86 Dated: October 22, 2008. statements concerning the purpose of and basis for the proposed rule change 3 See Securities Exchange Act Release No. 58673 Florence E. Harmon, (September 29, 2008), 73 FR 57707 (October 3, Acting Secretary. and discussed any comments it received 2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) on the proposed rule change. The text (approving the Merger). As noted, Amex was [FR Doc. E8–25867 Filed 10–29–08; 8:45 am] of these statements may be examined at renamed NYSE Alternext U.S. LLC and will be BILLING CODE 8011–01–P the places specified in Item IV below. referred to as NYSE Alternext for all purposes throughout this filing. For the avoidance of doubt, NYSE Alternext has prepared NYSE Alternext U.S. LLC is a self regulatory summaries, set forth in Sections A, B organization distinct from NYSE Euronext’s and C below, of the most significant European-market subsidiary, NYSE Alternext. aspects of such statements. 4 15 U.S.C. 78f. 5 See Securities Exchange Act Release No. 58705 (October 1, 2008), 73 FR 58995 (October 8, 2008) 1 15 U.S.C. 78s(b)(1). (SR–Amex 2008–63) (approving the Equities 2 17 CFR 240.19b–4. Relocation).

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Trinity Permits are eligible to apply for provides, subject to certain Proposed Amendments to NYSE Rule 86 an NYSE Alternext equities trading requirements and restrictions, that non- license or options trading permit upon members may be granted sponsored The Exchange proposes the following the Equities or Options Relocation, as access to NYSE Bonds as ‘‘Sponsored amendments to NYSE Rule 86 in order applicable.6 In addition, pursuant to the Participants.’’ A non-member may to facilitate the Bonds Relocation and to Merger, all NYSE Alternext members become a Sponsored Participant so long permit both NYSE and NYSE Alternext and member organizations that apply for as the non-member is authorized to do members and member organizations to 15 an NYSE Alternext equities trading so by the Exchange and enters into a access NYSE Bonds. license are automatically waived in as written agreement with both the The Exchange proposes to modify NYSE members and member Exchange and its Sponsoring Member subparagraph (b)(2)(I) to remove the organizations.7 Similarly, all NYSE Organization. subscription requirement from Rule 86. members and member organizations are All securities traded on NYSE Bonds At the time the Exchange first adopted automatically waived in as NYSE are designated upon execution with an Rule 86 and implemented the NYSE Alternext members and member ‘‘N’’ indicator for ‘‘listed’’ debt Bonds platform, it required NYSE organizations.8 securities or a ‘‘U’’ indicator for members and member organizations to ‘‘traded’’ debt securities. In addition, all complete a subscription and service and Current NYSE Rule 86 and NYSE Bonds bond directory pages on the NYSE access agreement. The Exchange now Trading Platform Bonds Web site identify securities as believes that continuing to require The NYSE Bonds trading platform either ‘‘listed’’ or ‘‘traded.’’ 12 members and member organizations to processes all bonds trading (including separately ‘‘subscribe’’ to NYSE Bonds The Bonds Relocation convertible bonds and certain structured and complete the related documentation products) at the Exchange, including Similar to the Equities and Options is inefficient, impractical, and does not receipt, execution and reporting of Relocations, NYSE Alternext is now provide any additional benefit to the transactions.9 proposing the Bonds Relocation.13 Exchange or to investors. All of the NYSE Rule 86 prescribes how NYSE The debt securities involved in the requirements contained in the Bonds operates, who may use the Bonds Relocation will be traded on subscription and service and access 10 platform, and how it is regulated. In NYSE Alternext Bonds and NYSE agreement relating to compliance with relevant part, NYSE Rule 86(b)(2)(I) Alternext will maintain the listings of legal and regulatory obligations are provides that all NYSE member these securities in accordance with its governed by the rules of the Exchange. organizations are eligible to subscribe to listing standards. The Exchange will not By eliminating the subscription trade on NYSE Bonds. A member cross-list any NYSE Alternext-listed requirement, the Exchange believes it organization becomes a ‘‘Subscriber’’ to securities on the Exchange and will not will help to streamline the process for NYSE Bonds upon entering into a cross-list any Exchange-listed securities members and member organizations to subscription and service and access on NYSE Alternext. The Exchange does access NYSE Bonds without agreement with the Exchange. A not currently trade any debt securities compromising the integrity of the Subscriber to NYSE Bonds may enter listed on other exchanges on a UTP regulatory process. orders for themselves or their customer. basis, and neither the Exchange nor Correspondingly, the Exchange also In addition, NYSE Rule 86 provides a NYSE Alternext will trade debt proposes to substitute the references to mechanism for handling clearly securities listed on their respective ‘‘Subscribers’’ in subparagraphs (b)(2)(J), erroneous executions and for when exchanges on a UTP basis. trading may be halted or suspended, The Exchange understands that the (b)(2)(M), (m)(4) and (o) of NYSE Rule and has provisions governing sponsored Bonds Relocation will occur as soon as 86 with ‘‘Members and Member access.11 In particular, NYSE Rule 86(o) reasonably practicable following the Organizations’’, which would permit all date of the Merger, concurrent with the NYSE members and member 6 See Securities Exchange Act Release No. 58706 Equities Relocation.14 organizations to be automatically (October 1, 2008), 73 FR 59019 (October 8, 2008) eligible to access NYSE Bonds without (SR–NYSE–2008–70) (describing and approving 16 12 any additional requirements. Also, as membership rule changes related to the Merger); On NYSE Bonds, ‘‘listed’’ refers to registered Securities Exchange Act Release No. 58705 (October (or exempt) debt securities that have been listed described above, post-Merger all NYSE 1, 2008), 73 FR 58995 (October 8, 2008) (SR–Amex with the Exchange by the issuer, subject to the Alternext members and member 2008–63) (approving the Equities Relocation). applicable initial and continued listing approvals organizations that apply for an NYSE 7 and criteria. ‘‘Traded’’ refers to unregistered debt See NYSE Rules 2.10 and 2.20. NYSE Alternext Alternext equities trading permit will be members and member organizations will have a six- securities that are admitted to trading on NYSE month grace period within which to meet NYSE Bonds without requiring the issuer to have listed automatically waived in as members and NYSE Alternext Equities membership those securities on the Exchange. See Securities and member organizations of the requirements. If a member or member organization Exchange Act Release No. 54766 (November 16, Exchange. Thus, by providing in fails to meet those requirements by the close of the 2006), 71 FR 67657 (November 22, 2006) (S7–06– grace period, both NYSE and NYSE Alternext will 05) (SEC exemption for the trading of certain subparagraph (o) that all Exchange revoke trading approvals on their respective unregistered and unlisted securities). See also members and member organizations exchanges. See NYSE Rule 300.10T and NYSE NYSE Rules 1400–1401. will be eligible to access NYSE Bonds, Alternext Equities Rule 300.10T. See also Securities 13 In the filing governing the Equities Relocation, both NYSE and NYSE Alternext Exchange Act Release No. 58706 (October 1, 2008), NYSE Alternext noted that it expected to delist 73 FR 59019 (October 8, 2008) (SR–NYSE–2008– certain debt securities and that those securities 70); Securities Exchange Act Release No. 58705 would subsequently be listed and traded on NYSE adopt or make conforming amendments to other (October 1, 2008), 73 FR 58995 (October 8, 2008) Bonds. See Securities Exchange Act Release No. NYSE Alternext Equities Rules. See SR– (SR–Amex 2008–63). 58705 (October 1, 2008), 73 FR 58995 (October 8, NYSEALTR–2008–03. 8 See NYSE Alternext Equities Rules 2.10 and .20. 2008) (SR–Amex 2008–63). In the interim period 15 The Commission approved NYSE Rule 86 in See also Securities Exchange Act Release No. 58706 since that filing was submitted to the Commission, March 2007 after full notice and comment. See (October 1, 2008), 73 FR 59019 (October 8, 2008) NYSE Alternext determined that it will retain the Securities Exchange Act Release No. 55496 (March (SR–NYSE–2008–70); Securities Exchange Act listing of these debt securities while adopting and 20, 2007), 72 FR 14631 (March 28, 2007) (SR- Release No. 58705 (October 1, 2008), 73 FR 58995 using the advanced technology of NYSE Alternext NYSE–2006–37) (approving NYSE Bonds). (October 8, 2008) (SR–Amex 2008–63). Bonds to trade them. See SR–NYSEALTR–2008–03. 16 See proposed NYSE Rule 86(o) in Exhibit 5. 9 See NYSE Rules 86(a) and (g). 14 In order to implement the Bonds Relocation, The Exchange also proposes to substitute the 10 See NYSE Rules 86(b)—(l), (p). NYSE Alternext is proposing to adopt NYSE Rule reference to ‘‘Subscriber’’ in subparagraph (b)(2)(L) 11 See NYSE Rules 86(m)—(o). 86 as NYSE Alternext Equities Rule 86, and to with ‘‘Sponsoring Member Organization’’.

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members and member organizations C. Self-Regulatory Organization’s Paper Comments will be able to trade on NYSE Bonds. Statement on Comments on the • Send paper comments in triplicate By removing the subscription Proposed Rule Change Received From Members, Participants or Others to Secretary, Securities and Exchange requirement and providing that all Commission, 100 F Street, NE., No written comments were solicited NYSE members and member Washington, DC 20549–1090. organizations are eligible to access or received with respect to the proposed NYSE Bonds without any additional rule change. All submissions should refer to File requirements, the Exchange hopes to III. Date of Effectiveness of the Number SR-NYSE–2008–106. This file maximize participation, increase Proposed Rule Change and Timing for number should be included on the liquidity and improve pricing, which Commission Action subject line if e-mail is used. To help the Commission process and review your benefits all market participants. The Exchange believes that this comments more efficiently, please use In addition, the Exchange will modify proposal qualifies for immediate the NYSE Bonds website to reflect effectiveness upon filing as a non- only one method. The Commission will which securities are listed with NYSE controversial rule change pursuant to post all comments on the Commission’s and which securities are listed with Section 19(b)(3)(A) of the Act 20 and Internet Web site (http://www.sec.gov/ NYSE Alternext. Executions of NYSE Rule 19b–4(f)(6) 21 thereunder. The rules/sro.shtml). Copies of the Alternext-listed securities will be Exchange asserts that the proposed rule submission, all subsequent designated with an ‘‘A’’ indicator. change (i) will not significantly affect amendments, all written statements the protection of investors or the public with respect to the proposed rule Operative Date interest, (ii) will not impose any change that are filed with the significant burden on competition, and Commission, and all written The Exchange proposes that the (iii) by its terms, will not become communications relating to the operative date of the proposed rule operative for 30 days after the date of proposed rule change between the changes be the date of the Equities and this filing, or such shorter time as the Commission and any person, other than Bonds Relocations. Commission may designate, if those that may be withheld from the 2. Statutory Basis consistent with the protection of public in accordance with the investors and the public interest.22 This provisions of 5 U.S.C. 552, will be The Exchange believes that its filing is non-controversial because it available for inspection and copying in proposal is consistent with Section 6(b) raises no novel issues and is simply the Commission’s Public Reference of the Act,17 in general, and furthers the streamlining members’ and member Room, on official business days between 18 organizations’ access to NYSE Bonds, as objectives of Section 6(b)(5) of the Act, the hours of 10 a.m. and 3 p.m. Copies all of the requirements contained in the in particular, in that it is designed to of the filing also will be available for prevent fraudulent and manipulative subscription and service and access agreement relating to compliance with inspection and copying at the principal acts and practices, to promote just and office of the Exchange. All comments equitable principles of trade, to remove legal and regulatory obligations are already and will continue to be received will be posted without change; impediments to and perfect the governed by the rules of the Exchange. the Commission does not edit personal mechanism of a free and open market The proposed rule change will not identifying information from and a national market system, and, in become operative until the date of the submissions. You should submit only general, to protect investors and the Equities and Bonds Relocations. information that you wish to make public interest. The proposed rule available publicly. All submissions IV. Solicitation of Comments change also supports the principles of should refer to File Number SR–NYSE– Section 11A(a)(1) 19 of the Act in that it Interested persons are invited to 2008–106 and should be submitted on seeks to ensure economically efficient submit written data, views, and or before November 20, 2008. execution of securities transactions and arguments concerning the foregoing, fair competition among brokers and including whether the proposed rule For the Commission, by the Division of change is consistent with the Act. Trading and Markets, pursuant to delegated dealers and among exchange markets. 23 Comments may be submitted by any of authority. The Exchange believes that the the following methods: Florence E. Harmon, proposed amendments to NYSE Rule 86 Acting Secretary. will enhance the efficient execution of Electronic Comments [FR Doc. E8–25913 Filed 10–29–08; 8:45 am] transactions and fair competition among • Use the Commission’s Internet BILLING CODE 8011–01–P broker-dealers and markets and provide comment form (http://www.sec.gov/ increased bond market activity for the rules/sro.shtml); or benefit of all market participants. • Send an e-mail to rule- [email protected]. Please include File B. Self-Regulatory Organization’s Number SR–NYSE–2008–106 on the Statement on Burden on Competition subject line. The Exchange does not believe that 20 15 U.S.C. 78s(b)(3)(A). the proposed rule change will impose 21 17 CFR 240.19b–4(f)(6). any burden on competition that is not 22 7 CFR 240.19b–4(f)(6). In addition, Rule 19b- necessary or appropriate in furtherance 4(f)(6)(iii) requires a self-regulatory organization to of the purposes of the Act. give the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing 17 15 U.S.C. 78f(b). of the proposed rule change, or such shorter time 18 15 U.S.C. 78f(b)(5). as designated by the Commission. NYSE complied 19 15 U.S.C. 78k–1(a)(1). with this requirement. 23 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE II. Self-Regulatory Organization’s Relocation’’). The Exchange’s equity COMMISSION Statement of the Purpose of, and trading systems and facilities at 11 Wall Statutory Basis for, the Proposed Rule Street (the ‘‘NYSE Alternext Trading [Release No. 34–58839; File No. SR– Change Systems’’) will be operated by the NYSE NYSEALTR–2008–03] In its filing with the Commission, the on behalf of the Exchange. Similarly, the self-regulatory organization included Exchange will relocate all options Self-Regulatory Organizations; NYSE statements concerning the purpose of trading currently conducted on the 86 Alternext US LLC; Notice of Filing and and basis for the proposed rule change Trinity Trading Systems to new Immediate Effectiveness of Proposed and discussed any comments it received facilities of the Exchange to be located Rule Change Regarding Relocation of on the proposed rule change. The text at 11 Wall Street, which will use a the Trading of Certain Debt Securities of these statements may be examined at trading system based on the options Conducted on or Through the the places specified in Item IV below. trading system used by NYSE Arca, Inc. Exchange’s Legacy Trading Systems NYSE Alternext has prepared (‘‘NYSE Arca’’) (the ‘‘Options and Facilities to an Automated Bond summaries, set forth in Sections A, B Relocation’’).5 After the Equities Trading Platform Based on NYSE and C below, of the most significant Relocation, the Exchange will trade all BondsSM aspects of such statements. equities securities currently listed on A. Self-Regulatory Organization’s the Exchange on the NYSE Alternext October 23, 2008. Statement of the Purpose of, and Trading Systems. Pursuant to Section 19(b)(1) of the Statutory Basis for, the Proposed Rule Post-Merger, all Exchange members Securities Exchange Act of 1934 Change and member organizations that were (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 1. Purpose authorized to trade on the Exchange notice is hereby given that on October before the Merger will receive trading The purpose of the proposed rule 22, 2008, NYSE Alternext US LLC permits (referred to as ‘‘86 Trinity (‘‘NYSE Alternext’’ or ‘‘Exchange’’) filed change is to amend the NYSE Alternext Equities Rules as needed and to adopt, Permits’’) that authorize continued with the Securities and Exchange trading on the 86 Trinity Trading Commission (‘‘Commission’’) the subject to such changes as are necessary to apply the rule to the Exchange, NYSE Systems. Holders of the 86 Trinity proposed rule change as described in Permits are eligible to apply for an Items I and II below, which Items have Rule 86, which governs trading on the NYSE Bonds platform that NYSE NYSE Alternext equities trading license been prepared by the Exchange. The Alternext Bonds is based on. or options trading permit upon the Commission is publishing this notice to Equities or Options Relocation, as solicit comments on the proposed rule Background applicable.6 In addition, pursuant to the change from interested persons. As described more fully in a related Merger, all NYSE Alternext members I. Self-Regulatory Organization’s rule filing, NYSE Euronext acquired and member organizations that apply for Statement of the Terms of Substance of AMC pursuant to an Agreement and an NYSE Alternext equities trading the Proposed Rule Change Plan of Merger, dated January 17, 2008 license are automatically waived in as (the ‘‘Merger’’). In connection with the NYSE members and member The Exchange proposes to adopt Merger, the Exchange’s predecessor, the organizations.7 Similarly, all NYSE NYSE Alternext Equities Rule 86 in American Stock Exchange LLC members and member organizations are order to implement the relocation (‘‘Amex’’), a subsidiary of AMC, became automatically waived in as NYSE (‘‘Bonds Relocation’’) of the trading of a subsidiary of NYSE Euronext called NYSE Alternext US LLC 3, and will certain debt securities conducted on or 5 See Securities Exchange Act Release No. 58705 through the Exchange’s legacy trading continue to operate as a national (October 1, 2008), 73 FR 58995 (October 8, 2008) systems and facilities to an automated securities exchange registered under (SR–Amex 2008–63) (approving the Equities Section 6 of the Securities Exchange Act Relocation). The Exchange will submit a separate bond trading platform based on NYSE of 1934, as amended (the ‘‘Act’’).4 The rule filing to adopt a new rule set to govern NYSE BondsSM that will be operated by the effective date of the Merger was October Alternext options trading following the Options New York Stock Exchange LLC Relocation. 1, 2008. 6 (‘‘NYSE’’) on behalf of NYSE Alternext In connection with the Merger, the See Securities Exchange Act Release No. 58706 (‘‘NYSE Alternext Bonds’’). The Bonds (October 1, 2008), 73 FR 59019 (October 8, 2008) Exchange will relocate all equities (SR–NYSE–2008–70) (describing and approving Relocation is being implemented in trading conducted on the Exchange membership rule changes related to the Merger); connection with the recent acquisition legacy trading systems and facilities Securities Exchange Act Release No. 58705 (October of The Amex Membership Corporation located at 86 Trinity Place, New York, 1, 2008), 73 FR 58995 (October 8, 2008) (SR–Amex (‘‘AMC’’) by NYSE Euronext. This 2008–63) (approving the Equities Relocation). New York (the ‘‘86 Trinity Trading 7 proposal also includes non-substantive See NYSE Rules 2.10 and 2.20. NYSE Alternext Systems’’), to trading systems and members and member organizations will have a six- and technical changes to other NYSE facilities located at 11 Wall Street, New month grace period within which to meet NYSE Alternext Equities Rules that relate to York, New York (the ‘‘Equities and NYSE Alternext Equities membership bond trading at the Exchange. The text requirements. If a member organization fails to meet of the proposed rule change is available 3 See Securities Exchange Act Release No. 58673 those requirements by the close of the grace period, both the NYSE and NYSE Alternext will revoke on the Exchange’s Web site at http:// (September 29, 2008), 73 FR 57707 (October 3, 2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) trading approvals on their respective exchanges. www.nyse.com/equities/ (approving the Merger). As noted, Amex was See NYSE Rule 300.10T and NYSE Alternext nysealternextequities, at the Exchange’s renamed NYSE Alternext US LLC and will be Equities Rule 300.10T. See also Securities Exchange principal office, and at the referred to as NYSE Alternext or the Exchange for Act Release No. 58706 (October 1, 2008), 73 FR all purposes throughout this rule filing. For the 59019 (October 8, 2008) (SR–NYSE–2008–70) Commission’s Public Reference Room. avoidance of doubt, NYSE Alternext US LLC will (describing and approving membership issues be a self regulatory organization distinct from NYSE related to the Merger); Securities Exchange Act Euronext’s European-market subsidiary, NYSE Release No. 58705 (October 1, 2008), 73 FR 58995 1 15 USC. 78s(b)(1). Alternext. (October 8, 2008) (SR–Amex 2008–63) (including 2 17 CFR 240.19b–4. 4 15 USC. 78f. discussion of membership issues).

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Alternext members and member adoption of these rules is necessary in Similar to the manner in which NYSE organizations.8 order to trade debt securities on NYSE designates the securities it trades on Alternext Bonds. Following the Bonds NYSE Bonds, the Exchange will indicate The Bonds Relocation Relocation, NYSE Alternext Equities on the NYSE Alternext Bonds website As with the Equities and Options Rule 86 and the related rules will which securities are listed with the Relocations, the Exchange now proposes govern all debt securities transactions NYSE and which are listed with NYSE to relocate the trading of certain debt conducted on NYSE Alternext Bonds.12 Alternext. Executions of NYSE securities currently conducted on the 86 Because NYSE Alternext Bonds will Alternext-listed securities will be 9 Trinity Trading Systems to NYSE be operated by the NYSE on behalf of designated with an ‘‘A’’ indicator and 10 Alternext Bonds. The Exchange the Exchange, NYSE Alternext Equities executions of NYSE-listed securities believes that the NYSE Alternext Bonds Rule 86 and the related rules will be will be designated with an ‘‘N’’ platform is technologically superior to substantially identical to the existing indicator.15 the 86 Trinity Trading Systems and the NYSE Rules, subject to certain minor Exchange believes that the use and Regulation of Trading on NYSE changes necessary to apply these rules Alternext Bonds implementation of NYSE Alternext to the Exchange. The Exchange’s bond Bonds will promote increased market market structure will be identical to the Trading on NYSE Alternext Bonds activity in debt securities trading at the NYSE’s and they will have the same and maintenance of the applicable Exchange. rules governing, among other things, (i) listing standards will be regulated by Although they will be traded on a the processing and trading of debt NYSE Regulation Inc. (‘‘NYSER’’) in accordance with the terms and new technological platform, the securities, including receipt, execution conditions of the Regulatory Services Exchange will maintain the listings of and reporting of transactions, (ii) the Agreement the Exchange entered into the securities involved in the Bond types of market participants, (iii) clearly with NYSER pursuant to the Merger, Relocation in accordance with its listing erroneous executions, and (iv) trading effective October 1, 2008. standards. The Exchange will not cross- halts. list any NYSE-listed securities on the Proposed Amendments to Related NYSE Rule Modifications Relating to NYSE Exchange and will not cross-list any Alternext Equities Rules Exchange-listed securities on the NYSE. Alternext The Exchange proposes conforming The Exchange understands that NYSE As noted above, the Exchange does not currently trade any debt amendments to NYSE Alternext Equities proposes to adopt NYSE Rule 86 as Rules 13, 51, 55, 61, 72, 76, 79A, 123D securities on a UTP basis, and the NYSE Alternext Equities Rule 86, Exchange does not intend to trade any and 342 to accommodate the trading of subject to a few minor modifications. debt securities on NYSE Alternext securities on NYSE Alternext Bonds on This filing conforms with amendments a UTP basis. Moreover, neither the Bonds. The Exchange also proposes to to NYSE Rule 86 that were recently filed adopt NYSE Rule 119 as NYSE Exchange nor NYSE will trade debt by the NYSE.13 securities listed on their respective Alternext Equities Rule 119, which In order to facilitate trading on NYSE exchanges on a UTP basis. prescribes the procedures for canceling The Exchange anticipates that the Alternext Bonds, the Exchange proposes an order in NYSE Alternext Bonds when Bonds Relocation will occur as soon as that NYSE Alternext Equities Rule 86 there is a change in the basis of bonds reasonably practicable following the provide that all NYSE Alternext trading from ‘‘and interest’’ to ‘‘flat’’ as date of the Merger, concurrent with the members and member organizations determined by the Exchange. will be automatically eligible to access Equities Relocation. Operative Date NYSE Alternext Bonds.14 By providing Proposed NYSE Alternext Bond Trading that all NYSE Alternext members and The Exchange proposes that the Rules member organizations, which, as operative date of the proposed rule The Exchange proposes to adopt described above, includes by cross- changes be the date of the Equities and NYSE Rule 86 as NYSE Alternext designation all NYSE members and Bonds Relocations. Equities Rule 86, and to make member organizations, are automatically 2. Statutory Basis conforming amendments to other NYSE eligible to access NYSE Alternext Bonds The Exchange believes that its Alternext Equities Rules.11 The without any further requirements, both NYSE and NYSE Alternext members proposal is consistent with Section 6(b) of the Act,16 in general, and furthers the 8 See NYSE Alternext Equities Rules 2.10 and .20. and member organizations will be able 17 See also Securities Exchange Act Release No. 58706 to trade on NYSE Alternext Bonds. The objectives of Section 6(b)(5) of the Act, (October 1, 2008), 73 FR 59019 (October 8, 2008) Exchange believes that these in particular, in that it is designed to (SR–NYSE–2008–70); Securities Exchange Act modifications will maximize prevent fraudulent and manipulative Release No. 58705 (October 1, 2008), 73 FR 58995 acts and practices, to promote just and (October 8, 2008) (SR–Amex 2008–63). participation, increase liquidity and 9 See Exhibit 3A for a list of the securities improve pricing, which benefits all equitable principles of trade, to remove involved in the Bonds Relocation. market participants. 10 In the filing governing the Equities Relocation, 15 Pursuant to an SEC Exemptive Order for NYSE the Exchange noted that it expected to delist certain Bonds, NYSE is permitted to trade certain debt securities and that those securities would 20, 2007), 72 FR 14631 (March 28, 2007) (SR– unregistered and unlisted securities on NYSE subsequently be listed and traded on NYSE Bonds. NYSE–2006–37) (approving NYSE Bonds). Bonds. See Securities Exchange Act Release No. See Securities Exchange Act Release No. 58705 12 See Amex Rule 0 and NYSE Alternext Equities 54766 (November 16, 2006), 71 FR 67657 (October 1, 2008), 73 FR 58995 (October 8, 2008) Rule 0. Together these rules prescribe that all (November 22, 2006) (S7–06–05). See also NYSE (SR–Amex 2008–63). In the interim period since trading conducted on the systems and facilities Rules 1400–1401. Executions of these securities on that filing was submitted to the Commission, the operated by NYSE on behalf of the Exchange, NYSE Bonds are designated with a ‘‘U’’ indicator. Exchange has determined that it will retain the including the NYSE Alternext Bonds trading The securities included in the Bonds Relocation listing of these debt securities while adopting and platform, shall be governed solely by the NYSE (listed in Exhibit 3A) are not subject to the SEC’s using the advanced technology of NYSE Alternext Alternext Equities Rules unless otherwise Exemptive Order and thus the Exchange will not Bonds to trade them. specifically designated. need the ‘‘U’’ indicator for any securities traded on 11 The Commission approved NYSE Rule 86 in 13 See SR–NYSE–2008–106. NYSE Alternext Bonds. March 2007 after full notice and comment. See 14 See proposed NYSE Alternext Equities Rule 16 15 U.S.C. 78f(b). Securities Exchange Act Release No. 55496 (March 86(o). 17 15 U.S.C. 78f(b)(5).

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impediments to and perfect the equities trading on NYSE Alternext, and of the filing also will be available for mechanism of a free and open market recent amendments to NYSE Rule 86, inspection and copying at the principal and a national market system, and, in upon which this filing is modeled.22 As office of the Exchange. All comments general, to protect investors and the described above, this proposal seeks received will be posted without change; public interest. The proposed rule only to implement NYSE Alternext the Commission does not edit personal change also supports the principles of Bonds, which is based on the existing identifying information from Section 11A(a)(1) 18 of the Act in that it NYSE Bonds platform, and to adopt the submissions. You should submit only seeks to ensure economically efficient related rules (subject to minor information that you wish to make execution of securities transactions and modifications to apply them to the available publicly. All submissions fair competition among brokers and Exchange), to govern the trading of debt should refer to File Number SR– dealers and among exchange markets. securities on NYSE Alternext. NYSEALTR–2008–03 and should be The Exchange believes that the The operative date of the proposed submitted on or before November 20, proposed adoption of NYSE Alternext rule changes is the date of the Equities 2008. Rule 86 and other rule amendments will and Bonds Relocations. For the Commission, by the Division of enhance the efficient execution of IV. Solicitation of Comments Trading and Markets, pursuant to delegated transactions and fair competition among authority.23 broker-dealers and markets and provide Interested persons are invited to Florence E. Harmon, submit written data, views, and increased bond market activity for the Acting Secretary. benefit of all market participants arguments concerning the foregoing, including whether the proposed rule [FR Doc. E8–25914 Filed 10–29–08; 8:45 am] B. Self-Regulatory Organization’s change is consistent with the Act. BILLING CODE 8011–01–P Statement on Burden on Competition Comments may be submitted by any of The Exchange does not believe that the following methods: SECURITIES AND EXCHANGE the proposed rule change will impose Electronic Comments COMMISSION any burden on competition that is not necessary or appropriate in furtherance • Use the Commission’s Internet [Release No. 34–58855; File No. SR– of the purposes of the Act. comment form (http://www.sec.gov/ NYSEArca–2008–111] rules/sro.shtml); or C. Self-Regulatory Organization’s • Send an e-mail to Self-Regulatory Organizations; NYSE Statement on Comments on the [email protected]. Please include Arca, Inc.; Notice of Filing of Proposed Proposed Rule Change Received From File Number SR–NYSEALTR–2008–03 Rule Change Proposing To Amend Members, Participants or Others on the subject line. NYSE Arca Equities Rule 5.2(j)(6)(v) in No written comments were solicited Order To Add the CBOE Volatility Paper Comments   or received with respect to the proposed Index (VIX ) Futures (‘‘VIX Futures’’) • rule change. Send paper comments in triplicate to the Definition of Futures Reference to Secretary, Securities and Exchange Asset III. Date of Effectiveness of the Commission, 100 F Street, NE., Proposed Rule Change and Timing for Washington, DC 20549–1090. October 24, 2008. Pursuant to Section 19(b)(1) 1 of the Commission Action All submissions should refer to File Securities Exchange Act of 1934 The Exchange believes that this Number SR–NYSEALTR–2008–03. This (‘‘Act’’) 2 and Rule 19b–4 thereunder,3 proposal qualifies for immediate file number should be included on the notice is hereby given that on October effectiveness upon filing as a non- subject line if e-mail is used. To help the 17, 2008, NYSE Arca, Inc. (‘‘NYSE controversial rule change pursuant to Commission process and review your Arca’’ or the ‘‘Exchange’’) filed with the Section 19(b)(3)(A) of the Act 19 and comments more efficiently, please use Securities and Exchange Commission Rule 19b–4(f)(6) 20 thereunder. The only one method. The Commission will (‘‘Commission’’) the proposed rule Exchange asserts that the proposed rule post all comments on the Commission’s change as described in Items I and II change (i) will not significantly affect Internet Web site (http://www.sec.gov/ below, which Items have been prepared the protection of investors or the public rules/sro.shtml). Copies of the by the self-regulatory organization. The interest, (ii) will not impose any submission, all subsequent Commission is publishing this notice to significant burden on competition, and amendments, all written statements solicit comments on the proposed rule (iii) by its terms, will not become with respect to the proposed rule change from interested persons. operative for 30 days after the date of change that are filed with the this filing.21 Commission, and all written I. Self-Regulatory Organization’s The Exchange believes that this filing communications relating to the Statement of the Terms of Substance of is non-controversial because it raises no proposed rule change between the the Proposed Rule Change novel issues and is consistent with the Commission and any person, other than NYSE Arca, Inc. (‘‘NYSE Arca’’ or the Commission’s prior approvals of the those that may be withheld from the ‘‘Exchange’’), through its wholly-owned NYSE Bonds platform, the relocation of public in accordance with the subsidiary, NYSE Arca Equities, Inc. provisions of 5 U.S.C. 552, will be (‘‘NYSE Arca Equities’’ or the 18 15 U.S.C. 78k–1(a)(1). available for inspection and copying in ‘‘Corporation’’), is proposing to amend 19 15 U.S.C. 78s(b)(3)(A). the Commission’s Public Reference 20 NYSE Arca Equities Rule 5.2(j)(6)(v) in 17 CFR 240.19b–4(f)(6). Room, on official business days between  21 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– order to add the CBOE Volatility Index 4(f)(6)(iii) requires a self-regulatory organization to the hours of 10 a.m. and 3 p.m. Copies (VIX) Futures (‘‘VIX Futures’’) to the give the Commission written notice of its intent to definition of Futures Reference Asset. file the proposed rule change, along with a brief 22 See Securities Exchange Act Release No. 55496 description and text of the proposed rule change, (March 20, 2007), 72 FR 14631 (March 28, 2007) 23 at least five business days prior to the date of filing (SR–NYSE–2006–37); Securities Exchange Act 17 CFR 200.30–3(a)(12). of the proposed rule change, or such shorter time Release No. 58705 (October 1, 2008), 73 FR 58995 1 15 U.S.C. 78s(b)(1). as designated by the Commission. NYSE Alternext (October 8, 2008) (SR–Amex 2008–63); SR–NYSE– 2 15 U.S.C. 78A. complied with this requirement. 2008–106. 3 17 CFR 240.19b–4.

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The text of the proposed rule change is The Exchange is proposing to amend nearest-term expiration months in order available on the Exchange’s Web site at its generic listing standards under to bracket a 30-day calendar period. http://www.nyse.com, at the Exchange’s amended NYSE Arca Equities Rule However, when there is 8 days left to principal office and at the Commission’s 5.2(j)(6) for Index-Linked Securities expiration, the VIX ‘‘rolls’’ to the second Public Reference Room. pursuant to which it will be able to and third contract months in order to trade securities linked to VIX Futures minimize the pricing anomalies that II. Self-Regulatory Organization’s without Commission approval of each might occur close to expiration. Statement of the Purpose of, and individual product pursuant to Section For each contract month, CBOE will Statutory Basis for, the Proposed Rule 19(b)(2) of the Act.10 Specifically, the determine the at-the-money strike price. Change Exchange proposes to amend NYSE It will then select the at-the-money and In its filing with the Commission, the Arca Equities Rule 5.2(j)(6)(v) to add the out-of-the money series with non-zero self-regulatory organization included VIX Futures as an underlying financial bid prices and determine the midpoint statements concerning the purpose of, instrument of a Futures-Linked of the bid-ask quote for each of these and basis for, the proposed rule change Securities and included VIX Futures series. The midpoint quote of each and discussed any comments it received within the definition of a futures series is then weighted so that the on the proposed rule change. The text reference asset. The Exchange further away that series is from the at of those statements may be examined at represents that any securities it lists the-money strike, the less weight that is the places specified in Item IV below. and/or trades pursuant to NYSE Arca accorded to the quote. Then, to compute The Exchange has prepared summaries, Equities Rule 5.2(j)(6) will satisfy the the index level, CBOE will calculate a set forth in Sections A, B, and C below, standards set forth therein, and all volatility measure for the nearest term of the most significant aspects of such applicable Exchange and Federal options and then for the next term statements. Securities rules. The Exchange states options. This is done using the weighted that within five business days after mid-point of the prevailing bid-ask A. Self-Regulatory Organization’s commencement of trading of an Index- quotes for all included option series Statement of the Purpose of, and Linked Security in reliance on NYSE with the same expiration date. These Statutory Basis for, the Proposed Rule Arca Equities Rule 5.2(j)(6), the volatility measures are then interpolated 11 Change Exchange will file a Form 19b–4(e). to arrive at a single, constant 30-day The Commission has previously 1. Purpose measure of volatility. approved the listing and trading of The CBOE will compute the index on 4 options on the VIX.12 Rule 19b–4(e) under the Securities a real-time basis throughout each Exchange Act of 1934 (‘‘Act’’) 5 provides The VIX trading day, from 8:30 AM until 3:15 that the listing and trading of a new The information in this filing relating PM (Chicago Time) CST. The CBOE has derivative securities product by a self- calculated historical index values for regulatory organization (‘‘SRO’’) shall to the VIX was taken from the Web site of the Chicago Board Options Exchange the new VIX back to 1986. VIX levels not be deemed a proposed rule change, will be calculated by CBOE and pursuant to section (c)(1) of Rule 19b– (the ‘‘CBOE’’). The VIX was originally developed by disseminated at 15-second intervals to 4,6 if the Commission has approved, the CBOE in 1993 and was calculated market information vendors via the pursuant to Section 19(b) of the Act,7 using S&P 100 Index options. The Options Price Reporting Authority the SRO’s trading rules, procedures, and current methodology for the VIX was (‘‘OPRA’’). listing standards for the product class introduced by the CBOE in September VIX Futures including products linked to VIX 2003 and it is now an index that uses Futures, and the SRO has a surveillance  Information regarding VIX Futures 8 the quotes of certain S&P 500 Index program for the product class. (‘‘SPX’’) option series to derive a can be found on the Web site of the The Commission has approved the measure of the volatility of the U.S. CBOE Futures Exchange (the ‘‘CFE’’). listing pursuant to NYSE Arca Equities equity market. The VIX measures The CFE began listing and trading VIX Rule 5.2(j)(6), including listing pursuant market expectations of near term Futures since March 26, 2004, under the to Rule 19b–4(e), of Index-Linked volatility conveyed by the prices of ticker symbol VX. VIX Futures trade Securities, which term currently is options on the SPX. It provides between the hours of 8:30 a.m.–3:15 defined in NYSE Arca Equities Rule investors with up-to-the-minute market p.m. Central Time (Chicago Time). The 5.2(j)(6) to encompass Equity Index- estimates of expected stock market CFE is a member of the Intermarket Linked Securities, Commodity-Linked volatility over the next 30 calendar days Surveillance Group (‘‘ISG’’).13 Securities, Currency-Linked Securities, by extracting implied volatilities from The monthly volume and open Fixed Income Index-Linked Securities, real-time index option bid/ask quotes. interest, in USD, as of the last day of Futures-Linked Securities and The VIX is calculated using put and each of the last six months for the VIX Multifactor Index-Linked Securities.9 call options on the SPX in the two Futures was as follows:

Monthly volume Open interest

Mar—08 ...... $266,990,096 $2,621,925,695 Apr—08 ...... 220,242,675 2,539,855,183 May—08 ...... 214,255,026 2,574,362,763

4 17 CFR 240.19b–4(e). 9 See Securities Exchange Act Release Nos. 56637 12 See Securities Exchange Release No. 48807 5 17 U.S.C. 78a. (October 10, 2007), 72 FR 58704 (October 16, 2007) (November 19, 2003), 68 FR 66516 (November 26, 6 17 CFR 240.19b–4(c)(1). (SR–NYSEArca–2007–92) and 57701 [sic] (March 2003) (SR–CBOE–2003–40). 7 15 U.S.C. 78s(b). 14, 2008), 73 FR 15550 (March 24, 2008) (SR– 13 For a list of the current members and affiliate 8 See Securities Exchange Act Release No. 40761 NYSRArca–2008–20). members of ISG, see www.isgportal.org. (December 8, 1998), 63 FR 70952 (December 22, 10 15 U.S.C. 78s(b)(2). 1998). 11 17 CFR 240.19b–4(e)(2)(ii); 17 CFR 249.820.

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Monthly volume Open interest

Jun—08 ...... 210,130,373 2,506,392,108 Jul—08 ...... 216,902,870 2,476,056,292 Aug—08 ...... 254,239,715 2,113,750,676

The Exchange believes that the (ii) as to which the Exchange consents, DC 20549, on official business days proposed criteria to add VIX Futures as the Commission will: between the hours of 10 a.m. and 3 p.m. an underlying Futures Reference asset A. by order approve such proposed Copies of the filing also will be available will facilitate the listing and trading of rule change, or for inspection and copying at the additional Futures-Linked Security that B. institute proceedings to determine principal office of the Exchange. All will enhance competition among market whether the proposed rule change comments received will be posted participants, to the benefit of investors should be disapproved. without change; the Commission does and the marketplace. The Exchange has requested not edit personal identifying accelerated approval of this proposed information from submissions. You 2. Statutory Basis rule change prior to the 30th day after should submit only information that The Exchange believes that the the date of publication of the notice of you wish to make available publicly. All proposed rule change is consistent with the filing thereof. The Commission has submissions should refer to File Section 6(b) 14 of the Act, in general, and determined that a 15-day comment Number SR–NYSEArca–2008–111 and furthers the objectives of Section period is appropriate in this case. should be submitted on or before 15 6(b)(5) in particular in that it is IV. Solicitation of Comments November 14, 2008. designed to prevent fraudulent and Interested persons are invited to For the Commission, by the Division of manipulative acts and practices, to Trading and Markets, pursuant to delegated promote just and equitable principles of submit written data, views, and authority.16 arguments concerning the foregoing, trade, to foster cooperation and Florence E. Harmon, including whether the proposed rule coordination with persons engaged in Acting Secretary. change is consistent with the Act. facilitating transactions in securities, [FR Doc. E8–25923 Filed 10–29–08; 8:45 am] and to remove impediments to and Comments may be submitted by any of BILLING CODE 8011–01–P perfect the mechanisms of a free and the following methods: open market and a national market Electronic Comments system, and, in general, to protect • Use the Commission’s Internet SECURITIES AND EXCHANGE investors and the public interest. The comment form (http://www.sec.gov/ COMMISSION Exchange believes that the proposed rules/sro.shtml); or rule change will facilitate the listing and [Release No. 34–58856; File No. SR– • Send an e-mail to rule- NYSEArca–2008–112] trading of additional Futures-Linked [email protected]. Please include File Security that will enhance competition Number SR–NYSEArca–2008–111 on Self-Regulatory Organizations; NYSE among market participants, to the the subject line. Arca, Inc.; Notice of Filing and benefit of investors and the marketplace. Immediate Effectiveness of Proposed Paper Comments B. Self-Regulatory Organization’s Rule Change Relating to the Listing of • Statement on Burden on Competition Send paper comments in triplicate the NETS S&P/MIB Index Fund (Italy) to Secretary, Securities and Exchange The Exchange does not believe that Commission, 100 F Street, NE., October 24, 2008. the proposed rule change will impose Washington, DC 20549–1090. Pursuant to Section 19(b)(1) of the any burden on competition that is not Securities Exchange Act of 1934 All submissions should refer to File necessary or appropriate in furtherance (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Number SR–NYSEArca–2008–111. This of the purposes of the Act. notice is hereby given that on October file number should be included on the 21, 2008, NYSE Arca, Inc. (‘‘NYSE C. Self-Regulatory Organization’s subject line if e-mail is used. To help the Arca’’ or ‘‘Exchange’’) filed with the Statement on Comments on the Commission process and review your Securities and Exchange Commission Proposed Rule Change Received From comments more efficiently, please use (‘‘Commission’’) the proposed rule Members, Participants or Others only one method. The Commission will change described in Items I and II post all comments on the Commission’s No written comments were solicited below, which Items have been prepared Internet Web site (http://www.sec.gov/ or received with respect to the proposed by the Exchange. The Commission is rules/sro.shtml). Copies of the rule change. publishing this notice to solicit submission, all subsequent comments on the proposed rule change III. Date of Effectiveness of the amendments, all written statements from interested persons. Proposed Rule Change and Timing for with respect to the proposed rule Commission Action change that are filed with the I. Self-Regulatory Organization’s Within 35 days of the date of Commission, and all written Statement of the Terms of Substance of publication of this notice in the Federal communications relating to the the Proposed Rule Change Register or within such longer period (i) proposed rule change between the The Exchange proposes to list and as the Commission may designate up to Commission and any person, other than trade shares (‘‘Shares’’) of the following 90 days of such date if it finds such those that may be withheld from the fund of the NETS Trust (‘‘Trust’’): NETS longer period to be appropriate and public in accordance with the S&P/MIB Index Fund (Italy). The text of publishes its reasons for so finding or provisions of 5 U.S.C. 552, will be available for inspection and copying in 16 17 CFR 200.30–3(a)(12). 14 15 U.S.C. 78f(b). the Commission’s Public Reference 1 15 U.S.C. 78s(b)(1). 15 15 U.S.C. 78f(b)(5). Room, 100 F Street, NE., Washington, 2 17 C.F.R. 240.19b–4.

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the proposed rule change is available on expenses, of publicly-traded securities Detailed descriptions of the Fund, the the Exchange’s Web site at http:// in the aggregate in the Italian equity Index, procedures for creating and www.nyse.com, at the Exchange’s markets, as represented by the S&P/MIB redeeming Shares, transaction fees and principal office and at the Public Index (‘‘Index’’). The primary market for expenses, dividends, distributions, Reference Room of the Commission. securities in the Index is principally the taxes, and reports to be distributed to Borsa Italiana. beneficial owners of the Shares can be II. Self-Regulatory Organization’s The Exchange is submitting this found in the Trust’s Registration Statement of the Purpose of, and proposed rule change because the Index Statement 10 or on the Web site for the Statutory Basis for, the Proposed Rule for the Fund does not meet all of the Fund (http://www.netsetfs.com), as Change ‘‘generic’’ listing requirements of applicable. In its filing with the Commission, the Commentary .01(a)(B) to NYSE Arca 2. Statutory Basis self-regulatory organization included Equities Rule 5.2(j)(3) applicable to statements concerning the purpose of, listing of ICUs based on international or The Exchange believes the proposed and basis for, the proposed rule change global indexes. The Index meets all such rule change is consistent with and and discussed any comments it received requirements except for those set forth furthers the objectives of Section 6(b)(5) on the proposed rule change. The text in Commentary .01(a)(B)(3).6 The of the Act,11 in that it is designed to of these statements may be examined at Exchange represents that: (1) Except for prevent fraudulent and manipulative the places specified in Item IV below. the requirement under Commentary practices, to promote just and equitable The Exchange has prepared summaries, .01(a)(B)(3) to NYSE Arca Equities Rule principles of trade, to remove set forth in sections A, B, and C below, 5.2(j)(3) that the five most heavily impediments to, and perfect the of the most significant parts of such weighted component stocks shall not mechanisms of, a free and open market statements. exceed 60% of the weight of the Index, and a national market system, and, in the Shares of the Fund currently satisfy general, to protect investors and the A. Self-Regulatory Organization’s all of the generic listing standards under public interest. The proposed rule Statement of the Purpose of, and NYSE Arca Equities Rule 5.2(j)(3); (2) change will allow the listing and trading Statutory Basis for, the Proposed Rule the continued listing standards under of the Fund on the Exchange, which the Change NYSE Arca Equities Rules 5.2(j)(3) and Exchange believes will be to the benefit 1. Purpose 5.5(g)(2) applicable to ICUs shall apply of investors and the marketplace. to the Shares; and (3) the Trust is The Exchange proposes to list and 7 B. Self-Regulatory Organization’s required to comply with Rule 10A–3 Statement on Burden on Competition trade the Shares of the following fund under the Act for the initial and under NYSE Arca Equities Rule 5.2(j)(3), continued listing of the Shares. In The Exchange does not believe that the Exchange’s listing standards for addition, the Exchange represents that the proposed rule change will impose 3 Investment Company Units (‘‘ICUs’’): the Shares will comply with all other any burden on competition that is not NETS S&P/MIB Index Fund (Italy) (the requirements applicable to ICUs necessary or appropriate in furtherance ‘‘Fund’’). including, but not limited to, of the purpose of the Act. The Fund is currently listed on NYSE requirements relating to the C. Self-Regulatory Organization’s Alternext US LLC (‘‘NYSE Alternext dissemination of key information such Statement on Comments on the US’’) (formerly, American Stock as the Index value and Intraday Proposed Rule Change Received From Exchange LLC) and is traded on the Indicative Value, rules governing the Members, Participants or Others Exchange pursuant to unlisted trading trading of equity securities, trading No written comments were solicited privileges (‘‘UTP’’). Prior to listing on hours, trading halts, surveillance,8 and or received with respect to the proposed the Exchange, the Fund would be Information Bulletin to ETP Holders, as rule change. required to satisfy the applicable set forth in Exchange rules applicable to delisting procedures of NYSE Alternext ICUs and in prior Commission orders III. Date of Effectiveness of the US and applicable statutory and approving the generic listing rules Proposed Rule Change and Timing for regulatory requirements, including, applicable to the listing and trading of Commission Action without limitation, Section 12 of the 9 ICUs. The Exchange has designated the Act,4 relating to listing the Fund on the 5 proposed rule change as one that: (i) Exchange. 6 The Exchange states that the Index satisfies the Does not significantly affect the The Fund is an ‘‘index fund’’ that first requirement under Commentary .01(a)(B)(3) to protection of investors or the public seeks to provide investment results that NYSE Arca Equities Rule 5.2(j)(3) that the most heavily weighted component stock shall not exceed interest; (ii) does not impose any correspond generally to the price and 25% of the weight of the index or portfolio. significant burden on competition; and yield performance, before fees and However, the Index fails to meet the second (iii) by its terms, does not become requirement of Commentary .01(a)(B)(3) to NYSE 3 An Investment Company Unit is a security that Arca Equities Rule 5.2(j)(3) that the five most operative for 30 days from the date on represents an interest in a registered investment heavily weighted component stocks shall not company that holds securities comprising, or exceed 60% of the weight of the Index. The 2007) (SR–NYSEArca–2006–86) (order approving otherwise based on or representing an interest in, Exchange states that, as of September 22, 2008, the generic listing standards for ICUs based on an index or portfolio of securities (or holds five most heavily weighted component stocks international or global indexes); Securities securities in another registered investment represented 60.616% of the Index weight. Exchange Act Release No. 44551 (July 12, 2001), 66 company that holds securities comprising, or 7 17 CFR 240.10A–3. FR 37716 (July 19, 2001) (SR–PCX–2001–14) (order otherwise based on or representing an interest in, 8 The Exchange may obtain information for approving generic listing standards for ICUs and an index or portfolio of securities). See NYSE Arca surveillance purposes via the Intermarket Portfolio Depositary Receipts); Securities Exchange Equities Rule 5.2(j)(3)(A). Surveillance Group (‘‘ISG’’) from other exchanges Act Release No. 41983 (October 6, 1999), 64 FR 4 15 U.S.C. 78(l). who are members of ISG. For a list of the current 56008 (October 15, 1999) (SR–PCX–98–29) (order 5 The Exchange will seek the voluntary consent members of ISG, see http://www.isgportal.org. The approving rules for listing and trading of ICUs). of the issuer of the Fund to be delisted from NYSE Exchange does not have in place a comprehensive 10 See the Trust’s Registration Statement on Form Alternext US and listed on the Exchange. The surveillance sharing agreement with the Borsa N–1A, dated March 17, 2008, and supplement Exchange notes that its approval of the Fund’s Italiana and such exchange is not an ISG member. thereto dated September 3, 2008 (File Nos. 333– listing application would be required prior to 9 See, e.g., Securities Exchange Act Release No. 147077 and 811–22140). listing. 55621 (April 12, 2007), 72 FR 19571 (April 18, 11 15 U.S.C. 78f(b)(5).

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which it was filed, or such shorter time any significant burden on competition. identifying information from as the Commission may designate if For these reasons, the Commission submissions. You should submit only consistent with the protection of designates the proposed rule change as information that you wish to make investors and the public interest. operative upon filing. available publicly. All submissions Therefore, the foregoing proposed rule At any time within 60 days of the should refer to File Number SR– change has become effective pursuant to filing of the proposed rule change, the NYSEArca–2008–112 and should be Section 19(b)(3)(A) of the Act 12 and Commission may summarily abrogate submitted on or before November 20, Rule 19b–4(f)(6) thereunder.13 such rule change if it appears to the 2008. A proposed rule change filed under Commission that such action is For the Commission, by the Division of Rule 19b–4(f)(6) normally does not necessary or appropriate in the public Trading and Markets, pursuant to delegated become operative until 30 days after the interest, for the protection of investors, authority.17 14 date of filing. However, Rule 19b– or otherwise in furtherance of the Florence E. Harmon, 4(f)(6)(iii) 15 permits the Commission to purposes of the Act. Acting Secretary. designate a shorter time if such action IV. Solicitation of Comments is consistent with the protection of [FR Doc. E8–25924 Filed 10–29–08; 8:45 am] investors and the public interest. The Interested persons are invited to BILLING CODE 8011–01–P Exchange has requested that the submit written data, views, and Commission waive the 30-day operative arguments concerning the foregoing, delay so that it can list and trade the including whether the proposed rule SOCIAL SECURITY ADMINISTRATION Shares immediately. The Exchange change is consistent with the Act. states that the proposed rule change Comments may be submitted by any of Office of the Commissioner does not significantly affect the the following methods: [Docket No. SSA–2008–0049] protection of investors or the public Electronic Comments Cost-of-Living Increase and Other interest and does not impose any • significant burden on competition. The Use the Commission’s Internet Determinations for 2009 Exchange also believes that the proposal comment form (http://www.sec.gov/ rules/sro.shtml); or AGENCY: Social Security Administration. is non-controversial because, although • the Underlying Index fails to meet the Send an e-mail to rule- ACTION: Notice. requirement set forth in Commentary [email protected]. Please include File .01(a)(B)(3) to NYSE Arca Equities Rule Number SR–NYSEArca–2008–112 on SUMMARY: We have determined— 5.2(j)(3) that the five most heavily the subject line. (1) A 5.8 percent cost-of-living increase in Social Security benefits weighted component stocks not exceed Paper Comments 60% of the weight of the Index by a under title II of the Social Security Act • Send paper comments in triplicate small amount (0.616%), the Shares (the Act), effective for December 2008; to Secretary, Securities and Exchange currently satisfy all of the other (2) An increase in the Federal Commission, 100 F Street, NE., applicable generic listing standards Supplemental Security Income (SSI) Washington, DC 20549–1090. under NYSE Arca Equities Rule 5.2(j)(3) monthly benefit amounts under title and all other requirements applicable to All submissions should refer to File XVI of the Act for 2009 to $674 for an ICUs as set forth in Exchange Rules and Number SR–NYSEArca–2008–112. This eligible individual, $1,011 for an prior Commission orders approving the file number should be included on the eligible individual with an eligible generic listing rules applicable to the subject line if e-mail is used. To help the spouse, and $338 for an essential listing and trading of ICUs. Commission process and review your person; The Commission believes that comments more efficiently, please use (3) The student earned income waiving the 30-day operative delay is only one method. The Commission will exclusion to be $1,640 per month in consistent with the protection of post all comments on the Commission’s 2009 but not more than $6,600 in all of investors and the public interest.16 Internet Web site (http://www.sec.gov/ 2009; Given that the Shares comply with all rules/sro.shtml). Copies of the (4) The dollar fee limit for services of the NYSE Arca Equities generic submission, all subsequent performed as a representative payee to listing standards for ICUs (except for amendments, all written statements be $37 per month ($72 per month in the narrowly missing the requirement that with respect to the proposed rule case of a beneficiary who is disabled the five most heavily weighted change that are filed with the and has an alcoholism or drug addiction component stocks not exceed 60% of Commission, and all written condition that leaves him or her the weight of the Index), the listing and communications relating to the incapable of managing benefits) in 2009; trading of the Shares by NYSE Arca proposed rule change between the (5) The dollar limit on the does not appear to present any novel or Commission and any person, other than administrative-cost assessment charged significant regulatory issues or impose those that may be withheld from the to attorneys representing claimants to be public in accordance with the $83 in 2009; 12 15 U.S.C. 78s(b)(3)(A). provisions of 5 U.S.C. 552, will be (6) The national average wage index 13 17 CFR 240.19b–4(f)(6). available for inspection and copying in for 2007 to be $40,405.48; 14 Id. In addition, Rule 19b–4(f)(6)(iii) requires a the Commission’s Public Reference (7) The Old-Age, Survivors, and self-regulatory organization to give the Commission Room, 100 F Street, NE., Washington, Disability Insurance (OASDI) written notice of its intent to file the proposed rule change at least five business days prior to the date DC 20549, on official business days contribution and benefit base to be of filing of the proposed rule change, or such between the hours of 10 a.m. and 3 p.m. $106,800 for remuneration paid in 2009 shorter time as designated by the Commission. The Copies of the filing also will be available and self-employment income earned in Exchange has satisfied this requirement. for inspection and copying at the taxable years beginning in 2009; 15 15 17 CFR 240.19b–4(f)(6). principal office of the self-regulatory (8) The monthly exempt amounts 16 16 For purposes only of waiving the 30-day operative delay, the Commission has considered the organization. All comments received under the Social Security retirement proposed rule’s impact on efficiency, competition, will be posted without change; the and capital formation. See 15 U.S.C. 78c(f). Commission does not edit personal 17 17 CFR 200.30–3(a)(12).

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earnings test for taxable years ending in for computing the maximum amount of increase of 5.8 percent is effective for calendar year 2009 to be $1,180 and benefits payable to the family of a benefits under title II of the Act. $3,140; worker who first becomes eligible for Section 215(i) also specifies that an (9) The dollar amounts (‘‘bend old-age benefits or dies in 2009 (section automatic benefit increase under title II, points’’) used in the primary insurance 203(a)(2)(C)). effective for December of any year, will amount benefit formula for workers who be limited to the increase in the national Cost-of-Living Increases become eligible for benefits, or who die average wage index for the prior year if before becoming eligible, in 2009 to be General the ‘‘OASDI fund ratio’’ for that year is below 20 percent. The OASDI fund ratio $744 and $4,483; The next cost-of-living increase, or (10) The bend points used in the for a year is the ratio of the combined automatic benefit increase, is 5.8 assets of the Old-Age and Survivors formula for computing maximum family percent for benefits under titles II and benefits for workers who become Insurance and Disability Insurance XVI of the Act. Under title II, OASDI Trust Funds at the beginning of that eligible for benefits, or who die before benefits will increase by 5.8 percent for becoming eligible, in 2009 to be $950, year to the combined expenditures of individuals eligible for December 2008 these funds during that year. (The $1,372, and $1,789; benefits, payable in January 2009. This (11) The amount of taxable earnings a expenditures in the ratio’s denominator increase is based on the authority person must have to be credited with a exclude transfer payments between the contained in section 215(i) of the Act. two trust funds and reduce any transfers quarter of coverage in 2009 to be $1,090; Under title XVI, Federal SSI payment (12) The ‘‘old-law’’ contribution and to the Railroad Retirement Account by levels will also increase by 5.8 percent benefit base to be $79,200 for 2009; any transfers from that account into effective for payments made for the (13) The monthly amount deemed to either trust fund.) For 2008, the OASDI month of January 2009 but paid on constitute substantial gainful activity for fund ratio is assets of $2,238,500 million December 31, 2008. This is based on the statutorily blind individuals in 2009 to divided by estimated expenditures of authority contained in section 1617 of be $1,640, and the corresponding $623,507 million, or 359 percent. the Act. amount for non-blind disabled persons Because the 359 percent OASDI fund to be $980; Automatic Benefit Increase ratio exceeds 20 percent, the automatic (14) The earnings threshold Computation benefit increase for December 2008 is not limited. establishing a month as a part of a trial Under section 215(i) of the Act, the work period to be $700 for 2009; and third calendar quarter of 2008 is a cost- Title II Benefit Amounts (15) Coverage thresholds for 2009 to of-living computation quarter for all the In accordance with section 215(i) of be $1,700 for domestic workers and purposes of the Act. We are required to $1,500 for election workers. the Act, in the case of workers and increase benefits, effective for December family members for whom eligibility for FOR FURTHER INFORMATION CONTACT: 2008, for individuals entitled under title benefits (i.e., the worker’s attainment of Jeffrey L. Kunkel, Office of the Chief II of the Act and to increase maximum age 62, or disability or death before age Actuary, Social Security benefits payable to a family. For 62) occurred before 2009, benefits will Administration, 6401 Security December 2008, the benefit increase is increase by 5.8 percent beginning with Boulevard, Baltimore, MD 21235, (410) the percentage increase in the Consumer benefits for December 2008 which are 965–3013. Information relating to this Price Index (CPI) for Urban Wage payable in January 2009. In the case of announcement is available on our Earners and Clerical Workers from the first eligibility after 2008, the 5.8 Internet site at www.socialsecurity.gov/ third quarter of 2007 to the third quarter percent increase will not apply. OACT/COLA/index.html. For of 2008. For eligibility after 1978, benefits are information on eligibility or claiming Section 215(i)(1) of the Act provides generally determined using a benefit benefits, call 1–800–772–1213, or visit that the CPI for a cost-of-living formula provided by the Social Security our Internet site, Social Security Online, computation quarter shall be the Amendments of 1977 (Pub. L. 95–216), at www.socialsecurity.gov. arithmetic mean of this index for the 3 as described later in this notice. SUPPLEMENTARY INFORMATION: In months in that quarter. In accordance For eligibility before 1979, we accordance with the Act, we must with 20 CFR 404.275, we round the determine benefits by means of a benefit publish within 45 days after the close of arithmetic mean, if necessary, to the table. The table is available on the the third calendar quarter of 2008 the nearest 0.001. Internet at www.socialsecurity.gov/ benefit increase percentage and the The CPI for Urban Wage Earners and OACT/ProgData/tableForm.html, or by revised table of ‘‘special minimum’’ Clerical Workers for each month in the writing to: Social Security benefits (section 215(i)(2)(D)). Also, we quarter ending September 30, 2007, is: Administration, Office of Public must publish on or before November 1 For July 2007, 203.700; for August 2007, Inquiries, Windsor Park Building, 6401 the national average wage index for 203.199; and for September 2007, Security Boulevard, Baltimore, MD 2007 (section 215(a)(1)(D)), the OASDI 203.889. The arithmetic mean for that 21235. fund ratio for 2008 (section calendar quarter is 203.596. The Section 215(i)(2)(D) of the Act 215(i)(2)(C)(ii)), the OASDI contribution corresponding CPI for each month in the requires that, when we determine an and benefit base for 2009 (section quarter ending September 30, 2008, is: automatic increase in Social Security 230(a)), the amount of earnings required For July 2008, 216.304; for August 2008, benefits, we will publish in the Federal to be credited with a quarter of coverage 215.247; and for September 2008, Register a revision of the range of the in 2009 (section 213(d)(2)), the monthly 214.935. The arithmetic mean for this primary insurance amounts and exempt amounts under the Social calendar quarter is 215.495. Thus, corresponding maximum family benefits Security retirement earnings test for because the CPI for the calendar quarter based on the dollar amount and other 2009 (section 203(f)(8)(A)), the formula ending September 30, 2008, exceeds provisions described in section for computing a primary insurance that for the calendar quarter ending 215(a)(1)(C)(i). We refer to these benefits amount for workers who first become September 30, 2007 by 5.8 percent as ‘‘special minimum’’ benefits. These eligible for benefits or die in 2009 (rounded to the nearest 0.1), beginning benefits are payable to certain (section 215(a)(1)(D)), and the formula December 2008, a cost-of-living benefit individuals with long periods of

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relatively low earnings. To qualify for by 12 gives the corresponding monthly representative payee would serve the such benefits, an individual must have amounts for 2009—$674, $1,011, and interest of the individual because the at least 11 ‘‘years of coverage.’’ To earn $338, respectively. In the case of an individual has an alcoholism or drug a year of coverage for purposes of the eligible individual with an eligible addiction condition and is incapable of special minimum benefit, a person must spouse, we equally divide the amount managing such benefits). The dollar fee earn at least a certain proportion of the payable between the two spouses. limits are subject to increase by the ‘‘old-law’’ contribution and benefit base Title VIII of the Act provides for automatic cost-of-living increase, with (described later in this notice). For years special benefits to certain World War II the resulting amounts rounded to the before 1991, the proportion is 25 veterans residing outside the United nearest whole dollar amount. Thus, we percent; for years after 1990, it is 15 States. Section 805 provides that ‘‘[t]he increase the current amounts by 5.8 percent. In accordance with section benefit under this title payable to a percent to $37 and $72 for 2009. 215(a)(1)(C)(i), the table below shows qualified individual for any month shall Attorney Assessment Fee the revised range of primary insurance be in an amount equal to 75 percent of amounts and corresponding maximum the Federal benefit rate [the maximum Under sections 206(d) and 1631(d) of family benefit amounts after the 5.8 amount for an eligible individual] under the Act, whenever a fee for services is percent automatic benefit increase. title XVI for the month, reduced by the required to be paid to an attorney who amount of the qualified individual’s has represented a claimant, we must SPECIAL MINIMUM PRIMARY INSUR- benefit income for the month.’’ Thus the impose on the attorney an assessment to ANCE AMOUNTS AND MAXIMUM FAM- monthly benefit for 2009 under this cover administrative costs. Such provision is 75 percent of $674, or ILY BENEFITS PAYABLE FOR DECEM- assessment shall be no more than 6.3 $505.50. BER 2008 percent of the attorney’s fee or, if lower, Student Earned Income Exclusion a dollar amount that is subject to Primary Maximum increase by the automatic cost-of-living Number of years A blind or disabled child, who is a increase. We derive the dollar limit for of coverage insurance family amount benefit student regularly attending school, December 2008 by increasing the college, university, or a course of unrounded limit for December 2007, 11 ...... $36.90 $56.10 vocational or technical training, can $79.25, by 5.8 percent, which gives 12 ...... 75.10 113.70 have limited earnings that are not $83.85. We then round $83.85 to the 13 ...... 113.60 171.00 counted against his or her SSI benefits. 14 ...... 151.60 228.10 next lower multiple of $1. The dollar The maximum amount of such income limit effective for December 2008 is thus 15 ...... 189.40 285.20 that may be excluded in 2008 is $1,550 16 ...... 227.80 342.80 $83. 17 ...... 266.10 400.50 per month but not more than $6,240 in 18 ...... 304.30 457.60 all of 2008. These amounts increase National Average Wage Index for 2007 19 ...... 342.40 515.00 based on a formula set forth in General 20 ...... 380.70 572.00 regulation 20 CFR 416.1112. 21 ...... 419.10 629.80 To compute each of the monthly and Under various provisions of the Act, 22 ...... 457.00 687.00 yearly maximum amounts for 2009, we several amounts increase automatically 23 ...... 495.80 745.10 increase the corresponding unrounded with annual increases in the national 24 ...... 533.90 802.00 amount for 2008 by the latest cost-of- average wage index. The amounts are: 25 ...... 572.00 858.70 living increase. If the amount so (1) The OASDI contribution and benefit 26 ...... 610.80 917.10 calculated is not a multiple of $10, we base; (2) the exempt amounts under the 27 ...... 648.50 974.30 round it to the nearest multiple of $10. retirement earnings test; (3) the dollar 28 ...... 686.80 1,031.40 amounts, or bend points, in the primary 29 ...... 725.00 1,089.10 The unrounded monthly amount for 30 ...... 763.20 1,145.80 2008 is $1,548.10. We increase this insurance amount and maximum family amount by 5.8 percent to $1,637.89, benefit formulas; (4) the amount of earnings required for a worker to be Title XVI Benefit Amounts which we then round to $1,640. Similarly, we increase the unrounded credited with a quarter of coverage; (5) In accordance with section 1617 of yearly amount for 2008, $6,240.38, by the ‘‘old-law’’ contribution and benefit the Act, maximum Federal SSI benefit 5.8 percent to $6,602.32 and round this base (as determined under section 230 amounts for the aged, blind, and to $6,600. Thus, the maximum amount of the Act as in effect before the 1977 disabled will increase by 5.8 percent of the income exclusion applicable to a amendments); (6) the substantial gainful effective January 2009. For 2008, we student in 2009 is $1,640 per month but activity amount applicable to statutorily derived the monthly benefit amounts for not more than $6,600 in all of 2009. blind individuals; and (7) the coverage an eligible individual, an eligible threshold for election officials and individual with an eligible spouse, and Fee for Services Performed as a election workers. Also, section 3121(x) for an essential person—$637, $956, and Representative Payee of the Internal Revenue Code requires $319, respectively—from corresponding Sections 205(j)(4)(A)(i) and that the domestic employee coverage yearly unrounded Federal SSI benefit 1631(a)(2)(D)(i) of the Act permit a threshold be based on changes in the amounts of $7,651.53, $11,476.00, and qualified organization to collect from an national average wage index. $3,834.53. For 2009, these yearly individual a monthly fee for expenses In addition to the amounts required unrounded amounts increase by 5.8 incurred in providing services by statute, two amounts increase percent to $8,095.32, $12,141.61, and performed as such individual’s automatically under regulatory $4,056.93, respectively. Each of these representative payee. Currently the fee requirements. The amounts are: (1) The resulting amounts must be rounded, is limited to the lesser of: (1) 10 percent substantial gainful activity amount when not a multiple of $12, to the next of the monthly benefit involved; or (2) applicable to non-blind disabled lower multiple of $12. Accordingly, the $35 per month ($68 per month in any persons; and (2) the monthly earnings corresponding annual amounts, case in which the individual is entitled threshold that establishes a month as effective for 2009, are $8,088, $12,132, to disability benefits and we have part of a trial work period for disabled and $4,056. Dividing the yearly amounts determined that payment to the beneficiaries.

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Computation Computation the ratio of the national average wage Section 230(b) of the Act provides the index for 2007 to that for 1992; or (2) the We determined the national average 2008 monthly exempt amount ($1,130). wage index for calendar year 2007 based formula used to determine the OASDI contribution and benefit base. Under the If the resulting amount is not a multiple on the 2006 national average wage index of $10, it shall be rounded to the nearest of $38,651.41 announced in the Federal formula, the base for 2009 shall be the larger of: (1) The 1994 base of $60,600 multiple of $10. Register on October 25, 2007 (72 FR Under the formula applicable to 60703), along with the percentage multiplied by the ratio of the national average wage index for 2007 to that for beneficiaries attaining NRA in 2009, the increase in average wages from 2006 to higher monthly exempt amount for 2009 2007 measured by annual wage data. We 1992; or (2) the current base ($102,000). If the resulting amount is not a multiple shall be the larger of: (1) The 2002 tabulate the annual wage data including monthly exempt amount multiplied by contributions to deferred compensation of $300, it shall be rounded to the nearest multiple of $300. the ratio of the national average wage plans, as required by section 209(k) of index for 2007 to that for 2000; or (2) the the Act. The average amounts of wages Amount 2008 monthly exempt amount ($3,010). calculated directly from these data were Multiplying the 1994 OASDI If the resulting amount is not a multiple $37,078.27 and $38,760.95 for 2006 and contribution and benefit base amount of $10, it shall be rounded to the nearest 2007, respectively. To determine the ($60,600) by the ratio of the national multiple of $10. national average wage index for 2007 at average wage index for 2007 ($40,405.48 a level that is consistent with the Lower Exempt Amount as determined above) to that for 1992 national average wage indexing series ($22,935.42) produces the amount of Multiplying the 1994 retirement for 1951 through 1977 (published $106,759.42. We round this amount to earnings test monthly exempt amount of December 29, 1978, at 43 FR 61016), we $106,800. Because $106,800 exceeds the $670 by the ratio of the national average multiply the 2006 national average wage current base amount of $102,000, the wage index for 2007 ($40,405.48) to that index of $38,651.41 by the percentage OASDI contribution and benefit base is for 1992 ($22,935.42) produces the increase in average wages from 2006 to $106,800 for 2009. amount of $1,180.34. We round this to 2007 (based on SSA-tabulated wage $1,180. Because $1,180 is larger than the data) as follows, with the result rounded Retirement Earnings Test Exempt corresponding current exempt amount to the nearest cent. Amounts of $1,130, the lower retirement earnings Amount General test monthly exempt amount is $1,180 for 2009. The corresponding lower Multiplying the national average wage We withhold Social Security benefits annual exempt amount is $14,160 under index for 2006 ($38,651.41) by the ratio when a beneficiary under the normal the retirement earnings test. of the average wage for 2007 retirement age (NRA) has earnings in ($38,760.95) to that for 2006 excess of the applicable retirement Higher Exempt Amount ($37,078.27) produces the 2007 index, earnings test exempt amount. (NRA is Multiplying the 2002 retirement $40,405.48. The national average wage the age of initial benefit entitlement for earnings test monthly exempt amount of index for calendar year 2007 is about which the benefit, before rounding, is $2,500 by the ratio of the national 4.54 percent greater than the 2006 equal to the worker’s primary insurance average wage index for 2007 index. amount. The NRA is age 66 for those ($40,405.48) to that for 2000 born in 1943–54, and it gradually ($32,154.82) produces the amount of OASDI Contribution and Benefit Base increases to age 67.) A higher exempt $3,141.48. We round this to $3,140. General amount applies in the year in which a Because $3,140 is larger than the person attains his or her NRA, but only corresponding current exempt amount The OASDI contribution and benefit with respect to earnings in that year’s of $3,010, the higher retirement earnings base is $106,800 for remuneration paid months prior to such attainment, and a test monthly exempt amount is $3,140 in 2009 and self-employment income lower exempt amount applies at all for 2009. The corresponding higher earned in taxable years beginning in other ages below NRA. Section annual exempt amount is $37,680 under 2009. 203(f)(8)(B) of the Act, as amended by the retirement earnings test. The OASDI contribution and benefit section 102 of Pub. L. 104–121, provides base serves two purposes: formulas for determining the monthly Computing Benefits After 1978 exempt amounts. The corresponding (a) It is the maximum annual amount General annual exempt amounts are exactly 12 of earnings on which OASDI taxes are times the monthly amounts. The Social Security Amendments of paid. The OASDI tax rate for For beneficiaries attaining NRA in the 1977 provided a method for computing remuneration paid in 2009 is 6.2 year, we withhold $1 in benefits for benefits which generally applies when a percent for employees and employers, every $3 of earnings in excess of the worker first becomes eligible for benefits each. The OASDI tax rate for self- annual exempt amount for months prior after 1978. This method uses the employment income earned in taxable to such attainment. For all other worker’s ‘‘average indexed monthly years beginning in 2009 is 12.4 percent. beneficiaries under NRA, we withhold earnings’’ to compute the primary (The Hospital Insurance tax is due on $1 in benefits for every $2 of earnings insurance amount. We adjust the remuneration, without limitation, paid in excess of the annual exempt amount. computation formula each year to reflect in 2009, at the rate of 1.45 percent for changes in general wage levels, as employees and employers, each, and on Computation measured by the national average wage self-employment income earned in Under the formula applicable to index. taxable years beginning in 2009, at the beneficiaries who are under NRA and We also adjust, or ‘‘index,’’ a worker’s rate of 2.9 percent.) who will not attain NRA in 2009, the earnings to reflect the change in general (b) It is the maximum annual amount lower monthly exempt amount for 2009 wage levels that occurred during the of earnings used in determining a shall be the larger of: (1) The 1994 worker’s years of employment. Such person’s OASDI benefits. monthly exempt amount multiplied by indexing ensures that a worker’s future

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benefit level will reflect the general rise Consequently, for individuals who point amounts by the ratio of the in the standard of living that will occur first become eligible for old-age national average wage index for 2007 to during his or her working lifetime. To insurance benefits or disability that average for 1977. Then we round compute the average indexed monthly insurance benefits in 2009, or who die this amount to the nearest dollar. earnings, we first determine the in 2009 before becoming eligible for Multiplying the amounts of $230, $332, required number of years of earnings. benefits, their primary insurance and $433 by the ratio of the national Then we select that number of years amount will be the sum of: average wage index for 2007 with the highest indexed earnings, add (a) 90 percent of the first $744 of their ($40,405.48) to that for 1977 ($9,779.44) the indexed earnings, and divide the average indexed monthly earnings, plus produces the amounts of $950.29, total amount by the total number of (b) 32 percent of their average indexed $1,371.72, and $1,789.02. We round months in those years. We then round monthly earnings over $744 and these amounts to $950, $1,372, and the resulting average amount down to through $4,483, plus $1,789. Accordingly, the portions of the the next lower dollar amount. The result (c) 15 percent of their average indexed primary insurance amounts to be used is the average indexed monthly monthly earnings over $4,483. in 2009 are the first $950, the amount earnings. We round this amount to the next between $950 and $1,372, the amount For example, to compute the average lower multiple of $0.10 if it is not between $1,372 and $1,789, and the indexed monthly earnings for a worker already a multiple of $0.10. This amount over $1,789. attaining age 62, becoming disabled formula and the rounding adjustment Consequently, for the family of a before age 62, or dying before attaining described above are contained in section worker who becomes age 62 or dies in age 62, in 2009, we divide the national 215(a) of the Act. 2009 before age 62, we will compute the average wage index for 2007, Maximum Benefits Payable to a Family total amount of benefits payable to them $40,405.48, by the national average so that it does not exceed: General wage index for each year prior to 2007 (a) 150 percent of the first $950 of the in which the worker had earnings. Then The 1977 amendments continued the worker’s primary insurance amount, we multiply the actual wages and self- long established policy of limiting the plus employment income, as defined in total monthly benefits that a worker’s (b) 272 percent of the worker’s section 211(b) of the Act and credited family may receive based on his or her primary insurance amount over $950 for each year, by the corresponding ratio primary insurance amount. Those through $1,372, plus to obtain the worker’s indexed earnings amendments also continued the then for each year before 2007. We consider existing relationship between maximum (c) 134 percent of the worker’s any earnings in 2007 or later at face family benefits and primary insurance primary insurance amount over $1,372 value, without indexing. We then amounts but changed the method of through $1,789, plus compute the average indexed monthly computing the maximum amount of (d) 175 percent of the worker’s earnings for determining the worker’s benefits that may be paid to a worker’s primary insurance amount over $1,789. primary insurance amount for 2009. family. The Social Security Disability We then round this amount to the Computing the Primary Insurance Amendments of 1980 (Pub. L. 96–265) next lower multiple of $0.10 if it is not Amount established a formula for computing the already a multiple of $0.10. This maximum benefits payable to the family formula and the rounding adjustment The primary insurance amount is the of a disabled worker. This formula described above are contained in section sum of three separate percentages of applies to the family benefits of workers 203(a) of the Act. portions of the average indexed monthly who first become entitled to disability earnings. In 1979 (the first year the insurance benefits after June 30, 1980, Quarter of Coverage Amount formula was in effect), these portions and who first become eligible for these General were the first $180, the amount between benefits after 1978. For disabled workers $180 and $1,085, and the amount over initially entitled to disability benefits The amount of earnings required for $1,085. We call the dollar amounts in before July 1980, or whose disability a quarter of coverage in 2009 is $1,090. the formula governing the portions of began before 1979, we compute the A quarter of coverage is the basic unit the average indexed monthly earnings family maximum payable the same as for determining whether a worker is the bend points of the formula. Thus, the old-age and survivor family insured under the Social Security the bend points for 1979 were $180 and maximum. program. For years before 1978, we $1,085. generally credited an individual with a To obtain the bend points for 2009, Computing the Old-Age and Survivor quarter of coverage for each quarter in we multiply each of the 1979 bend- Family Maximum which wages of $50 or more were paid, point amounts by the ratio of the The formula used to compute the or with 4 quarters of coverage for every national average wage index for 2007 to family maximum is similar to that used taxable year in which $400 or more of that average for 1977. We then round to compute the primary insurance self-employment income was earned. these results to the nearest dollar. amount. It involves computing the sum Beginning in 1978, employers generally Multiplying the 1979 amounts of $180 of four separate percentages of portions report wages on an annual basis instead and $1,085 by the ratio of the national of the worker’s primary insurance of a quarterly basis. With the change to average wage index for 2007 amount. In 1979, these portions were annual reporting, section 352(b) of the ($40,405.48) to that for 1977 ($9,779.44) the first $230, the amount between $230 Social Security Amendments of 1977 produces the amounts of $743.70 and and $332, the amount between $332 and amended section 213(d) of the Act to $4,482.87. We round these to $744 and $433, and the amount over $433. We provide that a quarter of coverage would $4,483. Accordingly, the portions of the refer to such dollar amounts in the be credited for each $250 of an average indexed monthly earnings to be formula as the bend points of the individual’s total wages and self- used in 2009 are the first $744, the family-maximum formula. employment income for calendar year amount between $744 and $4,483, and To obtain the bend points for 2009, 1978, up to a maximum of 4 quarters of the amount over $4,483. we multiply each of the 1979 bend- coverage for the year.

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Computation Amount SGA Amount for Non-Blind Disabled Individuals Under the prescribed formula, the Multiplying the 1994 ‘‘old-law’’ quarter of coverage amount for 2009 contribution and benefit base amount Multiplying the 2000 monthly SGA shall be the larger of: (1) The 1978 ($45,000) by the ratio of the national amount for non-blind individuals ($700) amount of $250 multiplied by the ratio average wage index for 2007 by the ratio of the national average wage of the national average wage index for ($40,405.48) to that for 1992 index for 2007 ($40,405.48) to that for 2007 to that for 1976; or (2) the current ($22,935.42) produces the amount of 1998 ($28,861.44) produces the amount amount of $1,050. Section 213(d) further $79,276.80. We round this amount to of $979.99. We then round this amount provides that if the resulting amount is $79,200. Because $79,200 exceeds the to $980. Because $980 is larger than the not a multiple of $10, it shall be current amount of $75,900, the ‘‘old- current amount of $940, the monthly rounded to the nearest multiple of $10. law’’ contribution and benefit base is SGA amount for non-blind disabled individuals is $980 for 2009. Quarter of Coverage Amount $79,200 for 2009. Trial Work Period Earnings Threshold Multiplying the 1978 quarter of Substantial Gainful Activity Amounts coverage amount ($250) by the ratio of General General the national average wage index for A finding of disability under titles II During a trial work period, a 2007 ($40,405.48) to that for 1976 beneficiary receiving Social Security ($9,226.48) produces the amount of and XVI of the Act requires that a person, except for a title XVI disabled disability benefits may test his or her $1,094.82. We then round this amount ability to work and still be considered to $1,090. Because $1,090 exceeds the child, be unable to engage in substantial gainful activity (SGA). A person who is disabled. We do not consider services current amount of $1,050, the quarter of performed during the trial work period coverage amount is $1,090 for 2009. earning more than a certain monthly amount (net of impairment-related work as showing that the disability has ended ‘‘Old-Law’’ Contribution and Benefit expenses) is ordinarily considered to be until services have been performed in at Base engaging in SGA. The amount of least 9 months (not necessarily consecutive) in a rolling 60-month General monthly earnings considered as SGA depends on the nature of a person’s period. In 2008, any month in which The ‘‘old-law’’ contribution and disability. Section 223(d)(4)(A) of the earnings exceed $670 is considered a benefit base for 2009 is $79,200. This is Act specifies a higher SGA amount for month of services for an individual’s the base that would have been effective statutorily blind individuals under title trial work period. In 2009, this monthly under the Act without the enactment of II while Federal regulations (20 CFR amount increases to $700. the 1977 amendments. 404.1574 and 416.974) specify a lower Computation The ‘‘old-law’’ contribution and SGA amount for non-blind individuals. benefit base is used by: Both SGA amounts increase in The method used to determine the (a) The Railroad Retirement program accordance with increases in the new amount is set forth in our to determine certain tax liabilities and national average wage index. regulations at 20 CFR 404.1592(b). tier II benefits payable under that Monthly earnings in 2009, used to Computation program to supplement the tier I determine whether a month is part of a payments which correspond to basic The monthly SGA amount for trial work period, is such amount for Social Security benefits, statutorily blind individuals under title 2001 ($530) multiplied by the ratio of (b) the Pension Benefit Guaranty II for 2009 shall be the larger of: (1) the national average wage index for Corporation to determine the maximum Such amount for 1994 multiplied by the 2007 to that for 1999, or, if larger, such amount of pension guaranteed under the ratio of the national average wage index amount for 2008. If the amount so Employee Retirement Income Security for 2007 to that for 1992; or (2) such calculated is not a multiple of $10, we Act (section 230(d) of the Act), amount for 2008. The monthly SGA round it to the nearest multiple of $10. (c) Social Security to determine a year amount for non-blind disabled Amount of coverage in computing the special individuals for 2009 shall be the larger minimum benefit, as described earlier, of: (1) Such amount for 2000 multiplied Multiplying the 2001 monthly and by the ratio of the national average wage earnings threshold ($530) by the ratio of the national average wage index for (d) Social Security to determine a year index for 2007 to that for 1998; or (2) 2007 ($40,405.48) to that for 1999 of coverage (acquired whenever such amount for 2008. In either case, if ($30,469.84) produces the amount of earnings equal or exceed 25 percent of the resulting amount is not a multiple $702.82. We then round this amount to the ‘‘old-law’’ base for this purpose of $10, it shall be rounded to the nearest $700. Because $700 is larger than the only) in computing benefits for persons multiple of $10. current amount of $670, the monthly who are also eligible to receive pensions SGA Amount for Statutorily Blind earnings threshold is $700 for 2009. based on employment not covered Individuals under section 210 of the Act. Domestic Employee Coverage Multiplying the 1994 monthly SGA Threshold Computation amount for statutorily blind individuals The ‘‘old-law’’ contribution and ($930) by the ratio of the national General benefit base shall be the larger of: (1) average wage index for 2007 The minimum amount a domestic The 1994 ‘‘old-law’’ base ($45,000) ($40,405.48) to that for 1992 worker must earn so that such earnings multiplied by the ratio of the national ($22,935.42) produces the amount of are covered under Social Security or average wage index for 2007 to that for $1,638.39. We then round this amount Medicare is the domestic employee 1992; or (2) the current ‘‘old-law’’ base to $1,640. Because $1,640 is larger than coverage threshold. For 2009, this ($75,900). If the resulting amount is not the current amount of $1,570, the threshold is $1,700. Section 3121(x) of a multiple of $300, it shall be rounded monthly SGA amount for statutorily the Internal Revenue Code provides the to the nearest multiple of $300. blind individuals is $1,640 for 2009. formula for increasing the threshold.

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Computation DEPARTMENT OF STATE Dated: October 23, 2008. Robert S. Senseney, Under the formula, the domestic [Public Notice 6418] employee coverage threshold amount Acting Director, Office of Science and for 2009 shall be equal to the 1995 United States-Egypt Science and Technology Cooperation, Bureau of Oceans, amount of $1,000 multiplied by the ratio Technology Joint Board; Public Environment and Science, Department of State. of the national average wage index for Announcement of a Science and 2007 to that for 1993. If the resulting Technology Program for Competitive [FR Doc. E8–25930 Filed 10–29–08; 8:45 am] amount is not a multiple of $100, it Grants To Support International, BILLING CODE 4710–09–P shall be rounded to the next lower Collaborative Projects in Science and multiple of $100. Technology Between U.S. and Egyptian Cooperators DEPARTMENT OF STATE Domestic Employee Coverage Threshold Amount AGENCY: Department of State. [Public Notice 6416] ACTION: Notice. Multiplying the 1995 domestic United States-Egypt Science and employee coverage threshold amount Technology Joint Board; Public ($1,000) by the ratio of the national DATES: Effective Date: September 11, 2008. Announcement of a Science and average wage index for 2007 Technology Program for Competitive ($40,405.48) to that for 1993 FOR FURTHER INFORMATION CONTACT: Grants To Support Junior Scientist ($23,132.67) produces the amount of Nancy Ahson, PhD, Program Development Visits by U.S. and $1,746.68. We then round this amount Administrator, U.S.-Egypt Science and Egyptian Scientists to $1,700. Accordingly, the domestic Technology Grants Program, USAID/ employee coverage threshold amount is Cairo, Unit 64902, Box 5, APO AE AGENCY: Department of State. $1,700 for 2009. 09839–4902; phone: 011-(20–2) 2522– ACTION: Notice. 6887; fax: 011-(20–2) 2522–7041; E- Election Worker Coverage Threshold mail: [email protected]. DATES: Effective Date: September 11, General The 2008 Program Announcement, 2008. The minimum amount an election including proposal guidelines for Competitive Grants to Support FOR FURTHER INFORMATION CONTACT: worker must earn so that such earnings Nancy Ahson, PhD, Program are covered under Social Security or International, Collaborative Projects, will be available starting September 11, Administrator, U.S.-Egypt Science and Medicare is the election worker 2008 on the Joint Board Web site: http:// Technology Grants Program, USAID/ coverage threshold. For 2009, this cairo.usembassy.gov/usegypt/ Cairo, Unit 64902, Box 5, APO AE threshold is $1,500. Section 218(c)(8)(B) grants.htm. 09839–4902; phone: 011 (20–2) 2522– of the Act provides the formula for 6887; fax: 011 (20–2) 2522–7041; E- SUPPLEMENTARY INFORMATION: increasing the threshold. mail: [email protected]. Computation Authority: This program is established The 2008 Program guidelines for under 22 U.S.C. 2656d and the Agreement for Junior Scientist Development visits will Under the formula, the election Scientific and Technological Cooperation be available starting September 11, 2008 worker coverage threshold amount for between the Government of the United States on the Joint Board Web site: http:// 2009 shall be equal to the 1999 amount of America and the Government of the Arab cairo.usembassy.gov/usegypt/ of $1,000 multiplied by the ratio of the Republic of Egypt. jrgrants.htm. national average wage index for 2007 to A solicitation for this program will that for 1997. If the amount so begin September 11, 2008. This program SUPPLEMENTARY INFORMATION: determined is not a multiple of $100, it will provide modest grants for Authority: This program is established shall be rounded to the nearest multiple successfully competitive proposals for under 22 U.S.C. 2656d and the Agreement for of $100. bi-national collaborative projects and Scientific and Technological Cooperation other activities submitted by U.S. and between the Government of the United States Election Worker Coverage Threshold Egyptian experts. Projects must help the of America and the Government of the Arab Amount UnitedStates and Egypt utilize science Republic of Egypt. Multiplying the 1999 election worker and apply technology by providing A solicitation for this program will coverage threshold amount ($1,000) by opportunities to exchange ideas, begin September 11, 2008. This program the ratio of the national average wage information, skills, and techniques, and will provide modest grants for index for 2007 ($40,405.48) to that for to collaborate on scientific and successfully competitive proposals for 1997 ($27,426.00) produces the amount technological endeavors of mutual development visits by U.S. Junior of $1,473.25. We then round this interest and benefit. Proposals which Scientists to Egypt and Junior Egyptian amount to $1,500. Accordingly, the fully meet the submission requirements Scientists to the United States. election worker coverage threshold as outlined in the Program Applicants must be scientists who have amount is $1,500 for 2009. Announcement will receive peer received their PhD within the past ten (Catalog of Federal Domestic Assistance: reviews. Proposals considered for years. U.S. applicants only may have a Program Nos. 96.001, Social Security- funding in fiscal year 2009 must be Master’s degree or be currently enrolled Disability Insurance; 96.002, Social Security- postmarked by November 15, 2008. in a PhD program. Applications Retirement Insurance; 96.004, Social FOR FURTHER INFORMATION CONTACT: considered for funding must be Security-Survivors Insurance; 96.006, Supplemental Security Income) Please contact Chair of U.S.-Egypt S&T postmarked by November 15, 2008. All Joint Board, William Lawrence, Office of proposals which fully meet the Dated: October 24, 2008. Science and Technology Cooperation, submission requirements will be Michael J. Astrue, Bureau of Oceans, Environment and considered. More information and Commissioner of Social Security. Science, U.S. Department of State at copies of the Program Announcement [FR Doc. E8–25905 Filed 10–29–08; 8:45 am] (202) 663–2619 or e-mail: and Application may be obtained upon BILLING CODE 4191–02–P [email protected]. request.

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FOR FURTHER INFORMATION CONTACT: With the approval of the chairmen, legal questions concerning this Please contact Chair of U.S.-Egypt S&T members of the public may present oral disposition of comments contact: Joint Board William Lawrence, Office of statements at the meeting. Persons Rebecca B. MacPherson, Office of the Science and Technology Cooperation, wishing to present statements or obtain Chief Counsel, Federal Aviation Bureau of Oceans, Environment and information should contact the person Administration; telephone: (202) 267– Science, U.S. Department of State at listed in the ‘‘FOR FUTHER INFORMATION 7240; facsimile: (202) 267–7971; e-mail: (202) 663–2619 or e-mail: CONTACT’’ section. Members of the [email protected]. [email protected]. public may present a written statement SUPPLEMENTARY INFORMATION: to the committee at any time. Dated: October 23, 2008. Availability of Rulemaking Documents Robert S. Senseney, Issued in Washington, DC, on October 24, 2008. You may obtain an electronic copy Acting Director, Office of Science and using the Internet by: Technology Cooperation, Bureau of Oceans, Francisco Estrada C., (1) Searching the Federal Environment and Science, Department of RTCA Advisory Committee. eRulemaking Portal (http:// State. [FR Doc. E8–25939 Filed 10–29–08; 8:45 am] www.regulations.gov); [FR Doc. E8–25932 Filed 10–29–08; 8:45 am] BILLING CODE 4910–13–P (2) Visiting the FAA’s Regulations and BILLING CODE 4710–09–P Policies Web page at http:// www.faa.gov/regulations_policies/; or DEPARTMENT OF TRANSPORTATION (3) Accessing the Government DEPARTMENT OF TRANSPORTATION Printing Office’s Web page at http:// Federal Aviation Administration www.gpoaccess.gov/fr/index.html. Federal Aviation Administration [Docket No. FAA–2008–0629] You also may obtain a copy by sending a request to the Federal RTCA Government/Industry Air Traffic Operating Limitations for Unscheduled Aviation Administration, Office of Management Advisory Committee Operations at John F. Kennedy Rulemaking, ARM–1, 800 Independence AGENCY: Federal Aviation International Airport and Newark Avenue, SW., Washington, DC 20591, or Administration (FAA), DOT. Liberty International Airport by calling (202) 267–9680. Make sure to identify the amendment number or ACTION: Notice of RTCA Government/ AGENCY: Federal Aviation docket number of this rulemaking. Industry Air Traffic Management Administration (FAA), DOT. Advisory Committee. ACTION: Disposition of Comments to Discussion of Written Submissions and the Final Order SUMMARY: The FAA is issuing this notice Proposed Order. The FAA published the Notice of to advise the public of a meeting of SUMMARY: On July 17, 2008, the FAA Proposed Order, ‘‘Operating Limitations RTCA Government/Industry Air Traffic issued a proposed order requesting Management Advisory Committee. for Unscheduled Operations at John F. written views on the FAA’s tentative Kennedy International Airport and DATES: The meeting will be held determination to temporarily limit December 4, 2008, from 1 p.m. to 4 p.m. Newark Liberty International Airport,’’ unscheduled aircraft operations at John on July 17, 2008. The FAA concludes ADDRESSES: The meeting will be held at F. Kennedy International Airport (JFK) that it is unnecessary to issue a final the Holiday Inn Capitol, Columbia II and Newark Liberty International order because the limits proposed are Ballroom, 550 C Street, SW., Corner of Airport (EWR). The temporary limit was imposed by a final rule, ‘‘Congestion 6th & C Streets, SW., Washington, DC intended to supplement previously Management Rule for John F. Kennedy 20024. (Via Metro: L’Enfant Plaza issued FAA orders limiting scheduled International Airport and Newark Station, Use 7th & Maryland Exit). operations at both airports by Liberty International Airport,’’ (‘‘Final addressing congestion related delays FOR FURTHER INFORMATION CONTACT: Rule’’) issued on October 10, 2008.1 that would otherwise occur pending the RTCA Secretariat, 1828 L Street, NW., However, if the Final Rule is rendered ongoing rulemaking action for JFK and Suite 805, Washington, DC 20036; ineffective for any reason, the FAA may EWR. This disposition of comments telephone (202) 833–9339; fax (202) adopt the proposed order as final explains the FAA’s rationale for not 833–9434; Web site http://www.rtca.org. without an opportunity for further presently adopting the proposed order SUPPLEMENTARY INFORMATION: Pursuant comment. Accordingly, the comments to and discusses the comments received in to section 10(a)(2) of the Federal the proposed order are discussed below. Advisory Committee Act (Pub. L. 92– response to the proposed order. The Notice requested comments on 463, 5 U.S.C., Appendix 2), notice is ADDRESSES: To read background several aspects of the proposed order, as hereby given for the Air Traffic documents or comments received, go to well as any general comments. The Management Advisory Committee http://www.regulations.gov and follow comment period closed on July 28, meeting. The agenda will include: the online instructions for accessing the 2008. The FAA received one comment • Opening Plenary (Welcome and docket. Alternatively, go to the Docket during the comment period and eleven Introductions). Operations in Room W12–140 of the additional comments after the closing • Assessment of New York 77 West Building Ground Floor at 1200 date. These comments are from Initiatives. New Jersey Avenue, SE., Washington, interested parties including airlines, all- • FAA Airspace Management DC, between 9 a.m. and 5 p.m., Monday cargo air carriers, a public charter Program Review. through Friday, except Federal holidays. operator, and industry organizations. • NextGen Integration and FOR FURTHER INFORMATION CONTACT: For Several commenters generally support Implementation. technical questions concerning this the FAA’s goal of reducing congestion at • Closing Plenary (Other Business, disposition of comments contact: Gerry the New York area airports, and three Establish 2009 Meeting Schedule, Shakley, System Operations Services, commenters support the proposal in its ATMAC Member Discussion, Adjourn). Air Traffic Organization; telephone: entirety. Commenters opposing the Attendance is open to the interested (202) 267–9424; facsimile: (202) 267– public but limited to space availability. 7277; e-mail: [email protected]. For 1 73 FR 60544.

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proposed order contend that it fails to should accommodate operations in the limitations, there is no alternative for address the nature of charter, business, desired hour of operation or in unscheduled operations. and general aviation operations and the surrounding hours. It is impractical to CAA contends that the FAA failed to effect of the proposed order on those allocate a certain number of reservations disclose detailed information related to segments of the aviation industry. for last minute operations when the its analysis of unscheduled operations, Comments to the Notice are addressed carriers themselves cannot identify including what types of operations below by topic. The FAA also received when these operations will be needed. comprise the baseline and at what time seven comments in response to Unscheduled operations can be of day or night those operations ‘‘Congestion Management Rule for John accommodated under the Final Rule if occurred. The CAA contends that F. Kennedy International Airport and operators are flexible in their arrival and meaningful comment to the proposed Newark Liberty International Airport’’ 2 departure times. Based on data from order or analysis of possible alternatives regarding unscheduled operations that FAA’s Enhanced Traffic Management cannot be made without this detailed raised substantially the same issues and System (ETMS) for the year ended May information. are discussed below. 31, 2008, most unscheduled flights can The FAA understands CAA’s and be accommodated in visual NACA’s concerns. However, the All-Cargo Operations meteorological conditions or through analysis of impact on JFK and EWR in The comments submitted by the Cargo capacity in an adjacent hour (one hour the final regulatory evaluation for the Airline Association (CAA) best on either side of the actual hour of Final Rule (contained in docket number summarize the concerns of all-cargo air operation in the data). The ETMS data FAA–2008–0517) assumed that the carriers. CAA contends that the shows that fewer than one flight per day reservation restrictions were in place for proposed order will have a serious, on average would be affected by the the year ended May 31, 2008.3 (See adverse impact on all-cargo carriers, Final Rule at each airport, where there ‘‘Availability of Rulemaking arguing that, although most operations is insufficient capacity in the adjacent Documents’’ section for information on are conducted during nighttime hours, two hours to handle excess demand. how to access the docket.) Therefore, these carriers cannot always plan in Based on this data, with minor that analysis should reflect the advance to meet service demands accommodations in flight plans, conditions at the three major New York during congested hours. All-cargo unscheduled operators should be able to airports after the Final Rule becomes carriers frequently conduct unscheduled obtain reservations and operate without effective. Additionally, that analysis operations on short notice, and many incurring additional costs. However, if considered all operations during the guarantee service by a time certain. an operator cannot obtain a reservation slot-controlled hours, as indicated in the Because of these combined for its preferred time, its planned flight proposal. Unscheduled demand circumstances, a failure to obtain a times may need to be revised because of included operations that were not required reservation may result in the limited available reservations. This allocated Operating Authorizations liability to the shipper. CAA believes is similar to the burden borne by under the FAA’s order for scheduled that reservations will not be available scheduled operators that conduct flights flights. More detailed information for last minute operations, which it during available reservation times. regarding the exact times or type of argues constitutes an unfair and operation would not change the net unlawful discrimination against all- Private Charter and Business Aviation effect of the reservation system because cargo carriers and other unscheduled The National Air Carrier Association the reservation system does not operations. Additionally, CAA contends (NACA) contends that the proposed distinguish between the various types of that because of the nature of the all- order unfairly targets a segment of the unscheduled operations. cargo industry segment, it is not industry, unscheduled operations, that The Aircraft Owners and Pilots practical to use other area airports for does not contribute significantly to the Association (AOPA) argues that a unscheduled operations. One all-cargo capacity constraints at the airports. reservation system for visual flight rules carrier claims that the proposed order Additionally, because of the nature of (VFR) operations is not justified because will preclude it from competing as an their business, these carriers cannot air traffic control permits these ‘‘ad-hoc charter operator’’ because its plan operations 72 hours in advance, operations only when weather and operations often are planned two hours and reservations may be unavailable at traffic conditions allow. AOPA also in advance. the last minute when they are needed to argues that the proposed order ignores CAA suggests that all-cargo carriers be perform contractual obligations. recent announcements by airlines to treated similarly to military and public As discussed above, unscheduled reduce capacity and the effect of that aircraft, and aircraft operating under operations can be accommodated under reduced capacity on the congestion at contracts with the Department of the Final Rule if operators are flexible JFK and EWR. AOPA contends that the Defense or the United States Postal in their arrival and departure times. proposed order unfairly burdens general Service to carry mail, because of the Additionally, the FAA believes that aviation operators at JFK and EWR ‘‘mission-critical all-cargo business general aviation demand and a segment The FAA appreciates AOPA’s model.’’ Under this treatment, all-cargo of flights conducted as business and concerns, but the Final Rule permits carriers would be subject to the order private charters can be accommodated additional operations when capacity and would need a reservation, but they within regional capacity. exists and significant delays are not would be given preferential treatment. expected. A reservation system for Number of Reservations and Applicable Another all-cargo carrier requests that a additional VFR operations maintains an Hours number of reservations be allocated to equitable and orderly mechanism for allow all-cargo operations on an as- NACA argues that the use of calendar allowing additional traffic at JFK and needed basis. year 2007 as a baseline is inappropriate The purpose of the reservation system because only LaGuardia was operating 3 The FAA recently reduced the number of is to allow for unscheduled operations, under an administrative order limiting available hourly reservations at LaGuardia to reflect historic usage and in recognition that additional and the number of reservations available the number of hourly operations. NACA operations at LaGuardia would further increase further argues that with all three major delays and congestion in the region. 73 FR 48428 2 Docket No. FAA–2008–0517. New York airports operating under (Aug. 19, 2008).

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EWR and provides greater opportunity Delta and Continental suggest that the Issued in Washington, DC on October 23, to plan for airport demand. FAA eliminate all unscheduled 2008. Additionally, although airlines may operations during the peak hours to Rebecca B. MacPherson, reduce capacity in the short term, many maximize the efficiency of the airports. Assistant Chief Counsel for Regulations. of the temporary reductions are in less The FAA considered these comments [FR Doc. E8–25850 Filed 10–29–08; 8:45 am] congested hours. Moreover, it is but believes that the Final Rule strikes BILLING CODE 4910–13–P important to have a comprehensive, the appropriate balance between the long-term system in place to manage operational needs of the various users of congestion and future growth at these the airports. DEPARTMENT OF TRANSPORTATION airports. The FAA intends to use its Cost-Benefit Analysis of Limitations on Federal Highway Administration authority under the Final Rule to Unscheduled Operations provide reservations for unscheduled operations when reservations set aside NetJets contends that the economic Environmental Impact Statement, San for scheduled operations are not analysis for limiting unscheduled Bernardino, CA expected to be used, when capacity operations did not demonstrate any AGENCY: Federal Highway exists in the system, and when events or congestion reduction benefit or properly Administration (FHWA), DOT. quantify the costs to aircraft operators. other local circumstances warrant ACTION: Notice of withdrawal. special consideration. The FAA believes Without this analysis, NetJets contends the flexibility to add reservations in there is no evidence that the proposed SUMMARY: The FHWA is providing this positive operating conditions could limitations are justified, and the public notice to advise the public that the allow greater access by general aviation has had no opportunity to comment on California Department of Transportation and other unscheduled operations this justification. (Caltrans) is withdrawing the Notice of without the risks of having to The economic analysis addressed the Intent (NOI) published in the Federal implement restrictions later in the day. costs and benefits of implementing the Register (Vol. 71, No. 128) on comprehensive congestion management Wednesday, July 5, 2006. That notice Use of Reservations for Alternate plan and includes limits on addressed the intent to prepare an Diversion Flights unscheduled operations. Because all Environmental Impact Statement (EIS) NACA argues that the entire operations contribute to the congestion for the proposed U.S. 395 Realignment reservation allocation process will and delay problems at JFK and EWR, the Freeway/Expressway project on U.S. encourage individual carriers to hoard solution must incorporate limitations on 395 from Interstate 15 (I–15/U.S. 395 unscheduled reservations to protect all operations. Under the Final Rule, interchange) to Farmington Road. The their operations and then fail to use scheduled operations bear the majority original NOI was published by FHWA. those reservations, especially for those of the operational reduction. Even Pursuant to 23 U.S.C. 327, awarded for alternate diversion though unscheduled operations, which environmental responsibilities for this scenarios. NACA contends that the are a small fraction of the total project have been assigned to Caltrans. proposed order encourages this behavior operations at JFK and EWR, are not the FOR FURTHER INFORMATION CONTACT: because there is no accountability for root cause of the congestion and delay, Boniface Udotor, Senior Environmental failure to use the reservation. the current situation where demand Planner, California Department of The FAA appreciates NACA’s outstrips supply means that the addition Transportation, 464 West 4th Street, 6th concerns regarding operators obtaining of even one operation can have a Floor, MS823, San Bernardino, reservations and failing to use them. disproportionate effect on congestion California 92401–1400; telephone (909) There are limited reservations, and and delay. Accordingly, these 388–1387. operators should not hoard or fail to limitations on unscheduled operations SUPPLEMENTARY INFORMATION: Caltrans, cancel unneeded ones because of the are part of the comprehensive plan to District 8, will stop further studies of impact on other operators. The FAA did reduce congestion and delay. not propose a penalty for failing to use this proposed project to realign U.S. a reservation. However, the FAA will Periodic Review of Orders 395. The project is currently undergoing monitor reservations and actual NACA requests the FAA to review the re-scoping for project modifications. operations to determine if abuse occurs necessity of limitations on unscheduled The corridor, which was to be and will work with individual operators operations on a semi-annual basis in evaluated, was located on either side of to eliminate any abusive behavior. The conjunction with the submission of existing U.S. 395 and to the west of final rule for JFK and EWR does not summer and winter flight schedules to existing U.S. 395. The proposed 45-mile contain a requirement to obtain a ensure that all operators may share in project was to include studies within reservation when filing flight plans any additional capacity. the communities of Oak Hills, Hesperia, listing those airports as alternates The FAA agrees that available airport Victorville, Adelanto and because such a requirement would capacity could potentially be used by unincorporated areas of San Bernardino result in unnecessary reservations that unscheduled operators. The Final Rule County. would remain unused in most cases. A provides for additional reservations (Catalog of Federal Domestic Assistance: reservation requirement applies only to when weather and capacity conditions Program Number 20.205, Highway Research actual operations at the airports, except allow, which includes decreased Planning and Construction. The regulations in the case of a declared emergency. The demand by scheduled operators. implementing Executive Order 12372 FAA understands that there may be Additionally the Air Traffic regarding inter-governmental consultation on federal programs and activities apply to this other safety or operational justifications Organization, primarily through the Air program.) that could dictate the use of an alternate Traffic Control System Command airport. However, this is not expected to Center, constantly reviews demand at Issued on: October 24, 2008. occur on a regular basis, and the FAA JFK and EWR, and will respond Nancy E. Bobb, would consider the individual accordingly to changes in capacity by Director, State Programs. circumstances as part of any adding reservations that do not result in [FR Doc. E8–25889 Filed 10–29–08; 8:45 am] enforcement proceeding. significant delay. BILLING CODE 4910–22–P

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DEPARTMENT OF TRANSPORTATION the end of the comment period and SUMMARY: PHMSA is extending the specify the basis for their request. period for public comment to its Federal Railroad Administration All communications concerning these Federal Register Notice issued on proceedings should identify the September 4, 2008 (73 FR 51697) that Petition for Waiver of Compliance appropriate docket number (e.g., Waiver proposes to revise forms PHMSA F In accordance with Part 211 of Title Petition Docket Number FRA–2008– 7100.2—Incident Report for Gas 49 Code of Federal Regulations (CFR), 0111) and may be submitted by any of Transmission and Gathering Systems; the following methods: PHMSA F 7100.1—Incident Report for notice is hereby given that the Federal • Railroad Administration (FRA) has Web site: http:// Gas Distribution Systems; and PHMSA received a request for a waiver of www.regulations.gov. Follow the online F 7000–1—Accident Report for compliance from certain requirements instructions for submitting comments. Hazardous Liquid Pipeline Systems. • Fax: 202–493–2251. of its safety standards. The individual DATES: Interested parties are invited to • Mail: Docket Operations Facility, petition is described below, including submit comments on or before U.S. Department of Transportation, 1200 the party seeking relief, the regulatory December 12, 2008. New Jersey Avenue, SE., W12–140, provisions involved, the nature of the ADDRESSES Washington, DC 20590. : Comments should reference relief being requested, and the • Hand Delivery: 1200 New Jersey Docket No. PHMSA–2008–0211 and petitioner’s arguments in favor of relief. Avenue, SE., Room W12–140, may be submitted in the following ways: • E-Gov Web Site: http:// CSX Transportation (Waiver Petition Washington, DC 20590, between 9 a.m. www.regulations.gov. This site allows Docket Number FRA–2008–0111) and 5 p.m., Monday through Friday, except Federal holidays. the public to enter comments on any CSX Transportation (CSXT) Communications received within 45 Federal Register notice issued by any petitioned FRA for a waiver from 49 days of the date of this notice will be agency. CFR 213.113(a) to permit variance from • Fax: 1–202–493–2251. considered by FRA before final action is • the accepted practice of stop/start rail taken. Comments received after that Mail: DOT Docket Operations test hand verification for a continuous date will be considered as far as Facility (M–30), U.S. Department of rail test pilot project for a period of 8 practicable. All written communications Transportation, West Building, 1200 weeks on the main tracks of the North concerning these proceedings are New Jersey Avenue, SE., Washington, End subdivision between Richmond, DC 20590. available for examination during regular • Virginia, and Rocky Mount, North business hours (9 a.m.–5 p.m.) at the Hand Delivery: DOT Docket Carolina, milepost limits A0.0–123.2. above facility. All documents in the Operations Facility, U.S. Department of Prior to beginning the pilot project, the public docket are also available for Transportation, West Building, Room North End subdivision main tracks will inspection and copying on the Internet W12–140, 1200 New Jersey Avenue, SE., be rail tested with a conventional stop/ at the docket facility’s Web site at Washington, DC 20590 between 9 a.m. start rail test vehicle and any normally http://www.regulations.gov. and 5 p.m., Monday through Friday, scheduled intervals during the pilot Anyone is able to search the except Federal holidays. project will be maintained by electronic form of any written Instructions: In the E-Gov Web site: convention stop/start rail test vehicle. communications and comments http://www.regulations.gov, access the The continuous high speed rail test received into any of our dockets by the Notice of Proposed Rulemaking by vehicle will be a self propelled rail- name of the individual submitting the typing ‘‘PHMSA–2008–0211’’ under bound ultrasound Sperry car operating comment (or signing the comment, if ‘‘Search Documents’’ and clicking ‘‘Go.’’ at speeds up to 25 miles per hour in submitted on behalf of an association, Submit your comment by clicking the non-stop mode making weekly runs. business, labor union, etc.). You may yellow bubble or ‘‘Send a Comment or Upon completion of each run, data will review DOT’s complete Privacy Act Submission’’ then following the be analyzed offline by a group of experts Statement in the Federal Register instructions. with experience in this process. The published on April 11, 2000 (Volume Identify docket number PHMSA– analysis will categorize and prioritize 65, Number 70; Pages 19477–78). 2008–0211 at the beginning of your suspect defect locations. Two teams of comments. For comments by mail, verifiers will then be sent out with field Issued in Washington, DC, on October 23, please provide two copies. To receive instruments to check locations based 2008. PHMSA’s confirmation receipt, include upon Global Positioning System (GPS) Grady C. Cothen, Jr., a self-addressed stamped postcard. coordinates. Locations will be checked Deputy Associate Administrator for Safety Internet users may access all comments 60 feet either side of suspect GPS point. Standards and Program Development. at http://www.regulations.gov, by Remedial actions will be applied as per [FR Doc. E8–25844 Filed 10–29–08; 8:45 am] searching for the docket number. BILLING CODE 4910–06–P 49 CFR 213.113 for confirmed rail Note: PHMSA will post all comments defects. CSXT states that continuous rail without changes or edits to http:// testing will provide the capability to test www.regulations.gov including any personal track more frequently, minimizing the DEPARTMENT OF TRANSPORTATION information provided. risk of rail service failure. Pipeline and Hazardous Materials Interested parties are invited to FOR FURTHER INFORMATION CONTACT: Safety Administration participate in these proceedings by Roger Little by telephone at 202–366– submitting written views, data, or [Docket No. PHMSA–2008–0211] 4569, by fax at 202–366–4566, or by comments. FRA does not anticipate mail at U.S. Department of scheduling a public hearing in Information Collection Activities Transportation, Pipeline and Hazardous connection with these proceedings since Materials Safety Administration, 1200 AGENCY: Pipeline and Hazardous New Jersey Avenue, SE., PHP–10, the facts do not appear to warrant a Materials Safety Administration. hearing. If any interested party desires Washington, DC 20590–0001. ACTION: Notice; extension of comment an opportunity for oral comment, they SUPPLEMENTARY INFORMATION: In period. should notify FRA, in writing, before response to requests for extension of the

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comment period made by trade Respondents: Rail carriers, shippers, information to the agency, third parties, association representatives from the and others doing business before the or the public. Section 3507(b) of the Interstate Natural Gas Association of STB. PRA requires, concurrent with an America, the American Petroleum Number of Respondents: 20. agency’s submitting a collection to OMB Institute, the Association of Oil Estimated Time per Response: Less for approval, a 30-day notice and Pipelines and the American Gas than .08 hours, based on actual survey comment period through publication in Association, PHMSA is extending the of respondents. the Federal Register concerning each comment period until December 12, Frequency: One time per respondent. proposed collection of information, 2008. Total Burden Hours (annually including each proposed extension of an Issued in Washington, DC, on October 23, including all respondents): Less than 1.6 existing collection of information. hours. 2008. Dated: October 24, 2008. Jeffrey D. Wiese, Total ‘‘Non-hour Burden’’ Cost: No ‘‘non-hour cost’’ burdens associated Andrea Pope-Matheson, Associate Administrator for Pipeline Safety. with this collection have been Clearance Clerk. [FR Doc. E8–25846 Filed 10–29–08; 8:45 am] identified. [FR Doc. E8–25936 Filed 10–29–08; 8:45 am] BILLING CODE 4910–60–P Needs and Uses: The Board is, by BILLING CODE 4915–01–P statute, responsible for the economic DEPARTMENT OF TRANSPORTATION regulation of freight rail carriers and certain other carriers operating in DEPARTMENT OF THE TREASURY Surface Transportation Board interstate commerce. This form is used by persons doing business before the Submission for OMB Review; Notice and Request for Comments Board who wish to open an account Comment Request with the Board to facilitate their AGENCY: Surface Transportation Board. October 23, 2008. payment of filing fees; fees for the The Department of Treasury is ACTION: 30-day notice and request for search, review, copying, and comments. planning to renew the following public certification of records; and other information collection requirement(s) SUMMARY: As part of its continuing effort services rendered by the Board. An for OMB clearance under the Paperwork to reduce paperwork burdens, and as account holder is billed on a monthly Reduction Act of 1995, Public Law 104– required by the Paperwork Reduction basis for payment of accumulated fees. 13. Copies of the submission(s) may be Act of 1995, 44 U.S.C. 3501 et seq. Data provided is also used for debt obtained by calling the Treasury Bureau (PRA), the Surface Transportation Board collection activities. The application Clearance Officer listed. Comments (STB or Board) gives notice that it has form requests information as required regarding this information collection submitted a request to the Office of by OMB and U.S. Department of should be addressed to the OMB Management and Budget (OMB) for an Treasury regulations for the collection reviewer listed and to the Treasury extension of approval without change of of fees. This information is not Department Clearance Officer, a currently approved collection: duplicated by any other agency. In Department of the Treasury, Room Application to Open a Billing Account. accordance with the Privacy Act, 5 11000, 1750 Pennsylvania Avenue, The Board previously published a U.S.C. 552a, all taxpayer identification NW., Washington, DC 20220. and social security numbers are secured notice about these collections in the DATES: Written comments should be and used only for credit management Federal Register on June 16, 2008, at 73 received on or before December 29, 2008 and debt collection activities. FR 34068. That notice allowed for a 60- to be assured of consideration. day public review and comment period. DATES: Written comments are due on No comments were received. December 1, 2008. Bureau of Engraving and Printing (BEP) This information collection is ADDRESSES: Comments should be OMB Number: 1520–0001. described in detail below. Comments directed to Office of Management and Type of Review: Extension. are requested concerning (1) The Budget, Office of Information and Form: BEP 5283. accuracy of the Board’s burden Regulatory Affairs, Attention: Surface Title: Owner’s Affidavit of Partial estimates; (2) ways to enhance the Transportation Board Desk Officer, by Destruction of Mutilated Currency. quality, utility, and clarity of the fax at (202) 395–6974 or by mail at 725 Description: The Office of Currency information collected; (3) ways to 17th Street, NW., Washington, DC Standards, Bureau of Engraving & minimize the burden of the collection of 20503. Printing requests owners of partially information on the respondents, For Further Information or to Obtain destroyed U.S. currency to complete a including the use of automated a Copy of the STB Form, Contact: notarized affidavit (BEP 5283) for each collection techniques or other forms of Anthony Jacobik, Jr., (202) 245–0346. claim submitted when substantial information technology, when [Federal Information Relay Service portions of notes are missing. appropriate; and (4) whether this (FIRS) for the hearing impaired: (800) Respondents: Individuals or collection of information is necessary 877–8339.] households. for the proper performance of the Estimated Total Burden Hours: 90 SUPPLEMENTARY INFORMATION: Under the functions of the Board, including hours. PRA, a Federal agency may not conduct whether the collection has practical OMB Number: 1520–0002. utility. or sponsor, and a person is not required Type of Review: Extension. to respond to, a collection of Title: Claim for Amounts Due in the Description of Collection information unless the collection Case of Deceased Owner of Mutilated Title: Application to Open a Billing displays a currently valid OMB control Currency. Account. number. A collection of information, Form: BEP 5287. OMB Control Number: 2140–0006. which is defined in 44 U.S.C. 3502(3) Description: BEP 5287 is used when STB Form Number: STB Form 1032. and 5 CFR 1320.3(c), includes agency Treasury is required to determine Type of Review: Extension without requirements that persons submit ownership in cases of a deceased owner change. reports, keep records, or provide of damaged or mutilated currency.

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Respondents: Individuals or Abstract: Under Internal Revenue Approved: October 22, 2008. households. Code section 7430 a prevailing party R. Joseph Durbala, Estimated Total Burden Hours: 1,821 may recover the reasonable IRS Reports Clearance Officer. hours. administrative or litigation costs [FR Doc. E8–25852 Filed 10–29–08; 8:45 am] Clearance Officer: Cary Conn, (202) incurred in an administrative or civil BILLING CODE 4830–01–P 874–2396, Bureau of Engraving and proceeding that relates to the Printing,14th & C Streets, SW., determination, collection, or refund of Washington, DC 20228. any tax, interest, or penalty. Section DEPARTMENT OF THE TREASURY 301.7430–2(c) of the regulation provides Robert Dahl, that the IRS will not award Internal Revenue Service Treasury PRA Clearance Officer. administrative costs under section 7430 [REG–146459–05] [FR Doc. E8–25847 Filed 10–29–08; 8:45 am] unless the taxpayer files a written BILLING CODE 4840–01–P request in accordance with the Proposed Collection; Comment requirements of the regulation. Request for Regulation Project Current Actions: There is no change to DEPARTMENT OF THE TREASURY this existing regulation. AGENCY: Internal Revenue Service (IRS), Type of Review: Extension of a Treasury. Internal Revenue Service currently approved collection. ACTION: Notice and request for [REG–248770–96 (Final)] Affected Public: Individuals or comments. households, and business or other for- Proposed Collection; Comment profit organizations, not-for-profit SUMMARY: The Department of the Request for Regulation Project institutions, farms, and the Federal Treasury, as part of its continuing effort to reduce paperwork and respondent AGENCY: Internal Revenue Service (IRS), government. Estimated Number of Respondents: Treasury. burden, invites the general public and 38. other Federal agencies to take this ACTION: Notice and request for Estimated Time per Respondent: 2 opportunity to comment on proposed comments. hours, 16 minutes. and/or continuing information Estimated Total Annual Burden SUMMARY: The Department of the collections, as required by the Treasury, as part of its continuing effort Hours: 86. Paperwork Reduction Act of 1995, The following paragraph applies to all to reduce paperwork and respondent Public Law 104–13 (44 U.S.C. of the collections of information covered burden, invites the general public and 3506(c)(2)(A)). Currently, the IRS is by this notice: other Federal agencies to take this soliciting comments concerning a final An agency may not conduct or regulation, REG–146459–05 (TD 9324), opportunity to comment on proposed sponsor, and a person is not required to and/or continuing information Designated Roth Contributions under respond to, a collection of information Section 402A. collections, as required by the unless the collection of information DATES: Written comments should be Paperwork Reduction Act of 1995, displays a valid OMB control received on or before December 29, 2008 Public Law 104–13 (44 U.S.C. number.Books or records relating to a to be assured of consideration. 3506(c)(2)(A)). Currently, the IRS is collection of information must be soliciting comments concerning an retained as long as their contents may ADDRESSES: Direct all written comments existing final regulation, REG–248770– become material in the administration to Glenn P. Kirkland, Internal Revenue 96 (TD 8725). Miscellaneous Sections of any internal revenue law. Generally, Service, room 6129, 1111 Constitution Affected by the Taxpayer Bill of Rights tax returns and tax return information Avenue, NW., Washington, DC 20224. 2 and the Personal Responsibility and are confidential, as required by 26 FOR FURTHER INFORMATION CONTACT: Work Opportunity Reconciliation Act of U.S.C. 6103. Requests for additional information or 1996 (§ 301.7430–2(c)). Request for Comments: Comments copies of this regulation should be DATES: Written comments should be submitted in response to this notice will directed to Carolyn N. Brown, (202) received on or before December 29, 2008 be summarized and/or included in the 622–6688, Internal Revenue Service, to be assured of consideration. request for OMB approval. All room 6129, 1111 Constitution Avenue ADDRESSES: Direct all written comments comments will become a matter of NW., Washington, DC 20224, or through to R. Joseph Durbala, Internal Revenue public record. Comments are invited on: the Internet at [email protected]. Service, room 6129, 1111 Constitution (a) Whether the collection of SUPPLEMENTARY INFORMATION: Avenue, NW., Washington, DC 20224. information is necessary for the proper Title: Designated Roth Contributions FOR FURTHER INFORMATION CONTACT: performance of the functions of the Under Section 402A. Requests for additional information or agency, including whether the OMB Number: 1545–1922. copies of the regulation should be information shall have practical utility; Regulation Project Number: REG– directed to Carolyn N. Brown (202) 622– (b) the accuracy of the agency’s estimate 146459–05 (TD 9324). 6688, Internal Revenue Service, room of the burden of the collection of Abstract: These final regulations 6129, 1111 Constitution Avenue, NW., information; (c) ways to enhance the provide guidanceconcerning the Washington, DC 20224 or through the quality, utility, and clarity of the taxation of distributions from Internet at [email protected]. information to be collected; (d) ways to designated Rothaccounts under SUPPLEMENTARY INFORMATION: minimize the burden of the collection of qualified cash or deferred arrangements Title: Miscellaneous Sections Affected information on respondents, including undersection 401(k). by the Taxpayer Bill of Rights 2 and the through the use of automated collection Current Actions: There is no change to Personal Responsibility and Work techniques or other forms of information this existing regulation. Opportunity Reconciliation Act of 1996. technology; and (e) estimates of capital Type of Review: Extension of a OMB Number: 1545–1356. or start-up costs and costs of operation, currently approved collection. Regulation Project Number: REG– maintenance, and purchase of services Affected Public: Business or other for- 248770–96. to provide information. profit organizations, individuals or

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households, not-for-profit institutions, SUMMARY: The Department of the retained as long as their contents may and Federal, state, local or tribal Treasury, as part of its continuing effort become material in the administration governments. to reduce paperwork and respondent of any internal revenue law. Generally, Estimated Number of Respondents: burden, invites the general public and tax returns and tax return information 357,000. other Federal agencies to take this are confidential, as required by 26 Estimated Time per Respondent: 2 opportunity to comment on proposed U.S.C. 6103. hrs, 19 minutes. and/or continuing information Request for Comments: Comments Estimated Total Annual Burden collections, as required by the submitted in response to this notice will Hours: 828,000. Paperwork Reduction Act of 1995, be summarized and/or included in the The following paragraph applies to all Public Law 104–13 (44 U.S.C. request for OMB approval. All of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is comments will become a matter of by this notice. soliciting comments concerning an public record. Comments are invited on: An agency may not conduct or existing final regulation, PS–54–89 (TD (a) Whether the collection of sponsor, and a person is not required to 8444). Applicable Conventions Under information is necessary for the proper respond to, a collection of information the Accelerated Cost Recovery System performance of the functions of the unless the collection of information (§ 1.168(d)–1(b)(7)). agency, including whether the displays a valid OMB control number. DATES: Written comments should be information shall have practical utility; Books or records relating to a (b) the accuracy of the agency’s estimate collection of information must be received on or before December 29, 2008 to be assured of consideration. of the burden of the collection of retained as long as their contents may information; (c) ways to enhance the ADDRESSES: become material in the administration Direct all written comments quality, utility, and clarity of the of any internal revenue law. Generally, to R. Joseph Durbala, Internal Revenue information to be collected; (d) ways to tax returns and tax return information Service, room 6129, 1111 Constitution minimize the burden of the collection of are confidential, as required by 26 Avenue, NW., Washington, DC 20224. information on respondents, including U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: through the use of automated collection Request for Comments: Comments Requests for additional information or techniques or other forms of information submitted in response to this notice will copies of the regulation should be technology; and (e) estimates of capital be summarized and/or included in the directed to Carolyn N. Brown (202) 622– or start-up costs and costs of operation, request for OMB approval. All 6688, Internal Revenue Service, room maintenance, and purchase of services comments will become a matter of 6129, 1111 Constitution Avenue, NW., to provide information. public record. Comments are invited on: Washington, DC 20224, or through the Approved: October 22, 2008. (a) Whether the collection of Internet at [email protected]. R. Joseph Durbala, information is necessary for the proper SUPPLEMENTARY INFORMATION: performance of the functions of the Title: Applicable Conventions Under IRS Reports Clearance Officer. agency, including whether the the Accelerated Cost Recovery System. [FR Doc. E8–25854 Filed 10–29–08; 8:45 am] information shall have practical utility; OMB Number: 1545–1146. BILLING CODE 4830–01–P (b) the accuracy of the agency’s estimate Regulation Project Number: PS–54–89 of the burden of the collection of Final. information; (c) ways to enhance the Abstract: The regulations describe the DEPARTMENT OF THE TREASURY quality, utility, and clarity of the time and manner of making the notation Internal Revenue Service information to be collected; (d) ways to required to be made on Form 4562, minimize the burden of the collection of under certain circumstances when the Advisory Council to the Internal information on respondents, including taxpayer transfers property in certain Revenue Service; Meeting through the use of automated collection non-recognition transactions. The techniques or other forms of information information is necessary to monitor AGENCY: Internal Revenue Service (IRS), technology; and (e) estimates of capital compliance with section 168 of the Treasury. or start-up costs and costs of operation, Internal Revenue Code. ACTION: Notice. maintenance, and purchase of services Current Actions: There is no change to SUMMARY: The Internal Revenue Service to provide information. this existing regulation. Advisory Council (IRSAC) will hold a Approved: October 16, 2008. Type of Review: Extension of a currently approved collection. public meeting on Wednesday, Glenn P. Kirkland, Affected Public: Business or other for- November 19, 2008. IRS Reports Clearance Officer. profit organizations, and farms. FOR FURTHER INFORMATION CONTACT: Ms. [FR Doc. E8–25853 Filed 10–29–08; 8:45 am] Estimated Number of Respondents: Lorenza Wilds, IRSAC Program BILLING CODE 4830–01–P 700. Manager, National Public Liaison, Estimated Time per Respondent: 6 CL:NPL, 7559, 1111 Constitution min. Avenue, NW., Washington, DC 20224. DEPARTMENT OF THE TREASURY Estimated Total Annual Burden Telephone: 202–622–5188 (not a toll- Hours: 70 hours. free number). E-mail address: Internal Revenue Service The following paragraph applies to all *[email protected] . [PS–54–89] of the collections of information covered SUPPLEMENTARY INFORMATION: Notice is by this notice: hereby given pursuant to section Proposed Collection; Comment An agency may not conduct or 10(a)(2) of the Federal Advisory Request for Regulation Project sponsor, and a person is not required to Committee Act, 5 U.S.C. App. (1988), a AGENCY: Internal Revenue Service (IRS), respond to, a collection of information public meeting of the IRSAC will be Treasury. unless the collection of information held on Wednesday, November 19, displays a valid OMB control 2008, from 9 a.m. to 1 p.m. at IRS ACTION: Notice and request for number.Books or records relating to a Headquarters, 1111 Constitution comments. collection of information must be Avenue, NW., Room 3313, Washington,

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DC 20224. Issues to be discussed Reports from the four IRSAC sub- begins. Should you wish the IRSAC to include: Increased IRS Transparency in groups, Large and Mid-size Business, consider a written statement, please call Issue Development, Compliance Risk Small Business/Self-Employed, Wage & 202–622–5188, or write to: Internal Management Process, Identification of Investment, and Tax Gap Analysis will Revenue Service, Office of National Paid Preparers, Extended Due Date of also be presented and discussed. Last Public Liaison, CL:NPL:7559, 1111 Partnerships, Real Estate Mortgage minute agenda changes may preclude Constitution Avenue, NW., Washington, Investment Conduits (REMICS) and advanced notice. The meeting room DC 20224 or e-mail: Certain Trusts that File Fiduciary Tax accommodates approximately 80 *[email protected]. Returns, Irs.gov EITC Enhancements, people, IRSAC members and Internal Dated: October 22, 2008. and Communication Strategy—Changes Revenue Service officials inclusive. Due to Regulations 301.7216—Disclosure to limited seating, please call Lorenza Carl Medley, and Use of Tax Return Data by Tax Wilds to confirm your attendance. Ms. Designated Federal Official, Branch Chief, Return Preparers, Corporate Tax Gap— Wilds can be reached at 202–622–5188. Liaison/Tax Forum Branch. Yield Curves, National Research Project Attendees are encouraged to arrive at [FR Doc. E8–25855 Filed 10–29–08; 8:45 am] (NRP) Individual and S-Corp Studies. least 30 minutes before the meeting BILLING CODE 4830–01–P

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Part II

Environmental Protection Agency 40 CFR Parts 260, 261, and 270 Revisions to the Definition of Solid Waste; Final Rule

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ENVIRONMENTAL PROTECTION Ave., NW., Washington, DC 20460, at This action is not intended to bring AGENCY (703) 308–8672 ([email protected]). new wastes into the RCRA hazardous SUPPLEMENTARY INFORMATION: waste regulatory system and it does not 40 CFR Parts 260, 261, and 270 do so. By removing unnecessary A. Does This Action Apply to Me? [EPA–HQ–RCRA–2002–0031; FRL–8728–9] controls over certain hazardous Entities potentially affected by today’s secondary materials, and by providing RIN 2050–AG31 action include approximately 5,600 more explicit and consistent factors for facilities in 280 industries in 21 determining the legitimacy of recycling Revisions to the Definition of Solid practices, EPA expects that today’s Waste economic sectors that generate or recycle hazardous secondary materials action will encourage and expand the AGENCY: Environmental Protection that are currently regulated as RCRA safe, beneficial recycling of additional Agency. Subtitle C hazardous wastes (e.g., hazardous secondary materials. Today’s ACTION: Final rule. secondary materials, such as industrial action is consistent with EPA’s co-products, by-products, residues, and longstanding policy of encouraging the SUMMARY: The Environmental Protection unreacted feedstocks). Approximately recovery, recycling, and reuse of Agency (EPA) is publishing a final rule 60% of these affected facilities are valuable resources as an alternative to that revises the definition of solid waste classified in NAICS code economic disposal (i.e., landfilling and to exclude certain hazardous secondary sectors 31, 32, and 33 (manufacturing). incineration), while at the same time materials from regulation under Subtitle The remaining economic sectors, which maintaining protection of human health C of the Resource Conservation and have more than ten affected industries and the environment. It also is Recovery Act (RCRA). The purpose of each, are in NAICS codes 48 consistent with the resource this final rule is to encourage safe, (transportation), 42 (wholesale trade), conservation goal of the Congress in environmentally sound recycling and and 56 (administrative support, waste enacting the RCRA statute (as evidenced resource conservation and to respond to management and remediation). About by the statute’s name), and with EPA’s several court decisions concerning the 1.5 million tons per year of hazardous vision of how the RCRA program could definition of solid waste. secondary materials generated and evolve over the long term to promote DATES: This final rule is effective on handled by these entities may be economic sustainability and more December 29, 2008. affected, of which the most common efficient use of resources. EPA’s long- ADDRESSES: EPA has established a types are metal-bearing hazardous term vision of the future of the RCRA docket for this action under Docket ID secondary materials (e.g., sludges and waste management program is discussed No. EPA–HQ–RCRA–2002–0031. All spent catalysts) for commodity metals in the document ‘‘Beyond RCRA: documents in the docket are listed on recovery and organic chemical liquid Prospects for Waste and Materials the http://www.regulations.gov Web hazardous secondary materials for Management in the Year 2020,’’ which site. Although listed in the index, some recovery as solvents. Today’s action is is available on EPA’s Web site at: http:// information is not publicly available, expected to result in regulatory and www.epa.gov/epaoswer/osw/vision.htm. e.g., Confidential Business Information materials recovery cost savings to these Preamble Outline (CBI) or other information whose industries of approximately $95 million I. Statutory Authority disclosure is restricted by statute. per year. Taking into account impact II. Which Revisions to the Regulations Is EPA Certain other material, such as estimation uncertainty factors, today’s Finalizing? copyrighted material, is not placed on action could result in cost savings III. What Is the History of These Rules? the Internet and will be publicly ranging from $19 million to $333 IV. How Do the Provisions in the Final Rule available only in hard copy form. million per year to these industries in Compare to Those Proposed on March Publicly available docket materials are 26, 2007? any future year. More detailed V. How Does the Concept of Discard Relate available either electronically in http:// information on the potentially affected to the Final Rule? www.regulations.gov or in hard copy at entities, industries, and industrial VI. When Will the Final Rule Become the OSWER Docket, EPA/DC, EPA West, materials, as well as the economic Effective? Room 3334, 1301 Constitution Ave., impacts of this rule (with impact VII. Exclusion for Hazardous Secondary NW., Washington, DC. The Public uncertainty factors), is presented in Materials That are Legitimately Reading Room is open from 8:30 a.m. to section XXI.A of this preamble and in Reclaimed Under the Control of the 4:30 p.m., Monday through Friday, Generator the ‘‘Regulatory Impact Analysis’’ VIII. Exclusion for Hazardous Secondary excluding legal holidays. The telephone available in the docket for this final Materials That are Transferred for the number for the Public Reading Room is rule. Purpose of Legitimate Reclamation (202) 566–1744, and the telephone IX. Legitimacy number for the OSWER Docket is 202– B. Why Is EPA Taking This Action? X. Non-Waste Determination Process 566–0270. There are two primary purposes of XI. Effect on Other Exclusions FOR FURTHER INFORMATION CONTACT: For this action. One purpose is to respond XII. Effect on Permitted and Interim Status more detailed information on specific to a series of seven decisions by the U.S. Facilities XIII. Effect on CERCLA aspects of this rulemaking, contact Court of Appeals for the DC Circuit XIV. Effect on Imports and Exports Marilyn Goode, Office of Solid Waste, (1987 to 2000), which, taken together, XV. General Comments on the Proposed Hazardous Waste Identification have provided EPA with additional Revisions to the Definition of Solid Division, MC 5304P, Environmental direction regarding the proper Waste Protection Agency, 1200 Pennsylvania formulation of the RCRA regulatory XVI. Major Comments on the Exclusion for Ave., NW., Washington, DC 20460, (703) definition of solid wastes for purposes Hazardous Secondary Materials 308–8800 ([email protected]) or of Subtitle C. A second purpose is to Legitimately Reclaimed Under the Control of the Generator Tracy Atagi, Office of Solid Waste, clarify the RCRA concept of ‘‘legitimate XVII. Major Comments on the Exclusion for Hazardous Waste Identification recycling,’’ which is a key component of Hazardous Secondary Materials Division, MC 5304P, Environmental EPA’s approach to recycling hazardous Transferred for the Purpose of Legitimate Protection Agency, 1200 Pennsylvania secondary materials. Reclamation

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XVIII. Major Comments on Legitimacy supplemental proposal (72 FR 14172). (2) They are generated and reclaimed XIX. Major Comments on the Non-Waste Section IV explains the ways in which at different facilities, if the generator Determination Process the March 2007 supplemental proposal certifies that the hazardous secondary XX. How Will These Regulatory Changes Be materials are sent either to a facility Administered and Enforced in the differs from today’s rule. Section V States? discusses how this rule is related to the controlled by the generator or to a XXI. Administrative Requirements for This concept of ‘‘discard,’’ and section VI facility under common control with the Rulemaking indicates the effective date of the rule. generator, and that either the generator Sections VII–X contain detailed or the reclaimer has acknowledged I. Statutory Authority descriptions of all regulatory provisions responsibility for the safe management These regulations are promulgated promulgated today. Sections XI–XIV of the hazardous secondary materials; or under the authority of sections 2002, describe the effect of this rule on other (3) They are generated and reclaimed 3001, 3002, 3003, 3004, 3007, 3010, and exclusions, permitted and interim status pursuant to a written agreement 3017 of the Solid Waste Disposal Act of facilities, Superfund, and imports/ between a tolling contractor and toll 1970, as amended by the Resource exports. Sections XV–XIX contain a manufacturer, if the tolling contractor Conservation and Recovery Act of 1976 discussion of all major public comments certifies that it has entered into a tolling (RCRA), as amended by the Hazardous received on the March 26, 2007, contract with a toll manufacturer and and Solid Waste Amendments of 1984 supplemental proposal, along with the that the tolling contractor retains (HSWA), 42 U.S.C. 6912, 6921, 6922, Agency’s responses to these comments. ownership of, and responsibility for, the 6923, 6924, 6927, 6930, and 6938. These Section XX describes how this rule will hazardous secondary materials statutes, combined, are commonly be administered and enforced in the generated during the course of the referred to as ‘‘RCRA.’’ states, and section XXI describes the manufacture, including any releases of hazardous secondary materials that II. Which Revisions to the Regulations administrative requirements for this rulemaking. occur during the manufacturing process. Is EPA Finalizing? This exclusion does not include the Below is a summary of the principal In today’s rule, EPA is revising the recycling of hazardous secondary regulatory revisions promulgated today. definition of solid waste to exclude from materials that are inherently waste-like regulation under Subtitle C of RCRA (42 A. Exclusion for Hazardous Secondary under 40 CFR 261.2(d), hazardous U.S.C. 6921 through 6939(e)) certain Materials That Are Legitimately secondary materials that are used in a hazardous secondary materials which Reclaimed Under the Control of the manner constituting disposal or used to are being reclaimed. We have defined Generator in Non-Land-Based Units produce products that are applied to or hazardous secondary materials as those placed on the land (40 CFR 261.2(c)(1)), This provision—40 CFR which would be classified as hazardous or hazardous secondary materials 261.2(a)(2)(ii)—would exclude certain wastes if discarded. We are also burned to recover energy or used to hazardous secondary materials (i.e., promulgating regulatory factors for produce a fuel or otherwise contained in listed sludges, listed by-products, and determining when recycling is fuels (40 CFR 261.2(c)(2)). legitimate. The Agency first proposed spent materials) that are generated and changes reflecting the court decisions legitimately reclaimed within the B. Exclusion for Hazardous Secondary on the definition of solid waste rules on United States or its territories under the Materials That Are Legitimately October 28, 2003 (68 FR 61558). We control of the generator, when such Reclaimed Under the Control of the then published a supplemental proposal materials are handled only in non-land- Generator in Land-Based Units on March 26, 2007 (72 FR 14172). based units (e.g., tanks, containers, or This provision—40 CFR Today’s preamble is organized as containment buildings). This provision 261.4(a)(23)—contains requirements follows: This section of the preamble applies to hazardous secondary that are identical to those that apply to (Section II) describes the three principal materials that are not spent lead-acid hazardous secondary materials regulatory revisions that are finalized in batteries or listed wastes K171 or K172, generated and legitimately reclaimed this rule: (1) An exclusion for certain or otherwise subject to the specific under the control of the generator hazardous secondary materials management conditions under 40 CFR within the United States or its territories legitimately reclaimed under the control 261.4(a). Under this provision, the and are handled in non-land-based units of the generator within the United States hazardous secondary materials must be in 40 CFR 261.2(a)(2)(ii), described or its territories; (2) a conditional contained in such units and are subject above. Land-based units are defined in exclusion for hazardous secondary to the speculative accumulation 40 CFR 260.10 as an area where materials that are transferred for the requirements of 40 CFR 261.1(c)(8), as hazardous secondary materials are purpose of legitimate reclamation; and well as the provisions for legitimate placed in or on the land before (3) a case-by-case non-waste recycling at 40 CFR 260.43. In addition, recycling, but this definition does not determination procedure. Section II also under 40 CFR 260.42, the generator (and include land-based production units. discusses EPA’s treatment of legitimacy the reclaimer, if the generator and Examples of land-based units are in the final rule. Section III describes reclaimer are located at different surface impoundments and piles. This the history of these revisions, including facilities) must send a notification prior provision applies to hazardous relevant court cases and the original to operating under the exclusion and by secondary materials that are not spent proposal (October 28, 2003, 68 FR March 1 of each even numbered year lead-acid batteries or listed wastes K171 61558). Section III also describes the thereafter to the EPA Regional or K172, or otherwise subject to the Agency’s independent analyses of Administrator or, in an authorized state, specific management conditions under successful recycling practices, to the state director. 40 CFR 261.4(a). environmental problems associated with Hazardous secondary materials would recycling of hazardous secondary be considered ‘‘under the control of the C. Exclusion for Hazardous Secondary materials, and potential effects of generator’’ under the following Materials That Are Transferred for the market forces on the management of circumstances: Purpose of Legitimate Reclamation such materials, and provides an (1) They are generated and then This conditional exclusion—40 CFR overview of the March 26, 2007, reclaimed at the generating facility; or 261.4(a)(24), hereinafter referred to as

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the ‘‘transfer-based exclusion’’—applies hazardous secondary materials burned materials indistinguishable in all to hazardous secondary materials (i.e., to recover energy or used to produce a relevant aspects from a product or spent materials, listed sludges, and fuel or are otherwise contained in fuels intermediate. listed by-products) that are generated (40 CFR 261.2(c)(2)). For hazardous secondary materials and subsequently transferred to a reclaimed in a continuous industrial D. Codification of Legitimacy different person or company for the process, the non-waste determination purpose of reclamation. As long as the Under the RCRA Subtitle C definition will be based on the following four conditions and restrictions to the of solid waste, certain hazardous criteria: (1) The extent that the exclusion are satisfied, the hazardous secondary materials, if recycled, are not management of the hazardous secondary secondary materials would not be solid wastes and, therefore, are not material is part of the continuous subject to Subtitle C regulation. subject to RCRA’s ‘‘cradle to grave’’ primary production process; (2) whether Hazardous secondary material management system. The basic idea the capacity of the production process generators, reclaimers, and intermediate behind this principle is that recycling of would use the hazardous secondary facilities (i.e., other facilities storing these materials often closely resembles material in a reasonable time frame; (3) hazardous secondary materials for more industrial manufacturing rather than whether the hazardous constituents in than 10 days) must all submit a waste management. However, due to the hazardous secondary material are notification prior to operating under the economic incentives for managing reclaimed rather than discarded to the exclusion and by March 1 of each even hazardous secondary materials outside air, water, or land at significantly higher numbered year thereafter to the EPA the RCRA regulatory system, there is a levels from either a statistical or from a Regional Administrator or, in an potential for some handlers to claim that health and environmental risk authorized state, to the state director they are recycling the hazardous perspective than would otherwise be (see 40 CFR 260.42). In addition, secondary materials when, in fact, they released by the production process; and hazardous secondary materials managed are conducting waste treatment and/or (4) other relevant factors that at such facilities may not be disposal. To guard against this, EPA has demonstrate the hazardous secondary speculatively accumulated as defined in long articulated the need to distinguish material is not discarded. § 262.1(c)(8) (see 40 CFR 261.4(a)(24)(i)) between ‘‘legitimate’’ (i.e., true) For hazardous secondary materials and must be legitimately recycled as recycling and ‘‘sham’’ recycling, which are indistinguishable in all specified in § 260.43 (see 40 CFR beginning with the preamble to the 1985 relevant aspects from a product or 261.4(a)(24)(iv)). regulations that discussed the definition intermediate, the non-waste Conditions applicable to generators of of solid waste (50 FR 638, January 4, determination will be based on the hazardous secondary materials are 1985) and continuing through today’s following five criteria: (1) Whether found at 40 CFR 261.4(a)(24)(v) and final rule. market participants treat the hazardous In the October 28, 2003, proposed rule include containment of such materials, secondary material as a product or (68 FR 61581–61588) on the definition reasonable efforts to ensure that the intermediate rather than a waste; (2) of solid waste, we proposed codifying intermediate facility or reclaimer whether the chemical and physical four criteria (called ‘‘factors’’ in today’s intends to manage or recycle the identity of the hazardous secondary rule) to determine when recycling of hazardous secondary material properly material is comparable to commercial hazardous secondary materials is and legitimately, and retention of products or intermediates; (3) whether legitimate. In the March 26, 2007, records of off-site shipments for three the capacity of the market would use the supplemental proposal in section XI of years. Conditions applicable to hazardous secondary material in a the preamble (72 FR 14197), we refined intermediate facilities and reclaimers of reasonable time frame; (4) whether the our original proposal in response to hazardous secondary materials are hazardous constituents in the hazardous found at 40 CFR 261.4(a)(24)(vi) and public comments. In today’s final rule, secondary material are reclaimed rather include containment of such materials, we are codifying the factors to be used than discarded to the air, water, or land transmittal of confirmations of receipt to in determining whether recycling under at significantly higher levels from either generators, maintenance of records for the provisions finalized in this rule is a statistical or from a health and hazardous secondary materials received legitimate, applying the structure environmental risk perspective than and sent off-site, financial assurance, basically as proposed in March 2007 would otherwise be released by the and (for reclaimers) proper management (proposed at 40 CFR 261.2(g)). The production process; and (5) other of residuals. In addition, if any of the legitimacy provision is finalized in 40 relevant factors that demonstrate the hazardous secondary materials excluded CFR 260.43. hazardous secondary material is not under 40 CFR 261.4(a)(24) are generated E. Non-Waste Determinations and then exported to another country discarded. The process for the non-waste for reclamation, the exporter must notify Today’s rule establishes a non-waste determination is the same as that for the and obtain consent from the receiving determination process that provides solid waste variances found in 40 CFR country, and file an annual report. This persons with an administrative process 260.30. requirement is codified in 40 CFR for receiving a formal determination that 261.4(a)(25). their hazardous secondary materials are III. What Is the History of These Rules? Like the previously discussed not discarded and, therefore, not solid exclusion for hazardous secondary wastes when legitimately reclaimed. A. Background materials reclaimed under the control of This process is voluntary and is RCRA gives EPA the authority to the generator, this exclusion would not available in addition to the two self- regulate hazardous wastes (see, e.g., apply to hazardous secondary materials implementing exclusions included in RCRA sections 3001–3004). The original that are inherently waste-like under 40 today’s rule. There are two types of non- statutory designation of the subtitle for CFR 261.2(d), hazardous secondary waste determinations: (1) A the hazardous waste program was materials that are used in a manner determination for hazardous secondary Subtitle C and the national hazardous constituting disposal or used to produce materials reclaimed in a continuous waste program is referred to as the products that are applied to or placed industrial process; and (2) a RCRA Subtitle C program. Subtitle C is on the land (40 CFR 261.2(c)(1)), or determination for hazardous secondary codified at 42 U.S.C. 6921 through

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6939e. ‘‘Subtitle C’’ regulations are 17, 18, 22). More recent data (i.e., EPA (‘‘AMC I’’), 824 F.2d 1177, 1178 found at 40 CFR Parts 260 through 279. information on damage incidents (DC Cir. 1987)). ‘‘Hazardous wastes’’ are the subset of occurring after 1982) included in the The Court held that certain of the solid wastes that present threats to rulemaking docket for today’s final rule materials EPA was seeking to regulate human health and the environment (see corroborate the fact that recycling were not ‘‘discarded materials’’ under RCRA section 1004(5)). EPA also may operations can result in significant RCRA section 1004(27). The Court also address solid and hazardous wastes damage incidents. held that Congress used the term under its endangerment authorities in • Excluding all hazardous secondary ‘‘discarded’’ in its ordinary sense, to section 7003. (Similar authorities are materials destined for recycling would mean ‘‘disposed of’’ or ‘‘abandoned’’ available for citizen suits under section allow materials to move in and out of (824 F.2d at 1188–89). The Court further 7002.) the hazardous waste management held that the term ‘‘discarded materials’’ Materials that are not solid wastes are system depending on what any person could not include materials ‘‘* * * not subject to regulation as hazardous handling the hazardous secondary destined for beneficial reuse or wastes under RCRA Subtitle C. Thus, material intended to do with them. This recycling in a continuous process by the the definition of ‘‘solid waste’’ plays a seems inconsistent with the mandate to generating industry itself (because they) key role in defining the scope of EPA’s track hazardous wastes and control are not yet part of the waste disposal authorities under Subtitle C of RCRA. them from ‘‘cradle to grave.’’ problem’’ (824 F.2d at 1190). The Court The statute defines ‘‘solid waste’’ as Hence, EPA has interpreted the held that Congress had directly spoken ‘‘* * * any garbage, refuse, sludge from statute to confer jurisdiction over at to this issue, so that EPA’s definition a waste treatment plant, water supply least certain hazardous secondary was not entitled to deference under treatment plant, or air pollution control materials destined for recycling. The Chevron U.S.A., Inc. v. NRDC, 467 U.S. facility and other discarded material Agency has therefore developed in part 837 (1984) (824 F.2d at 1183, 1189–90, 1193). * * * resulting from industrial, 261 of 40 CFR a definition of ‘‘solid commercial, mining, and agricultural At the same time, the Court did not waste’’ for Subtitle C regulatory operations, and from community hold that recycled materials could not purposes. (Note: This definition is activities * * *’’ (RCRA Section 1004 be discarded. The Court mentioned at narrower than the definition of ‘‘solid (27) (emphasis added)). least two examples of recycled materials Since 1980, EPA has interpreted waste’’ for RCRA endangerment and that EPA properly considered within its ‘‘solid waste’’ under its Subtitle C information-gathering authorities. (See statutory jurisdiction, noting that used regulations to encompass both materials 40 CFR 261.1(b)). Also Connecticut oil can be considered a solid waste (824 that are destined for final, permanent Coastal Fishermen’s Association v. F.3d at 1187 (fn 14)). Also, the Court treatment and placement in disposal Remington Arms Co., 989 F.2d 1305, suggested that materials disposed of and units, as well as certain materials that 1315 (2d Cir. 1993) holds that EPA’s use recycled as part of a waste management are destined for recycling (45 FR 33090– of a narrower and more specific program are within EPA’s jurisdiction 95, May 19, 1980; 50 FR 604–656, Jan. definition of solid waste for Subtitle C (824 F. 2d at 1179). 4, 1985 (see in particular pages 616– purposes is a reasonable interpretation Subsequent decisions by the DC 618)). EPA has offered three arguments of the statute. See also Military Toxics Circuit also indicate that some materials in support of this approach: Project v. EPA, 146 F.3d 948 (DC Cir. destined for recycling are ‘‘discarded’’ • The statute and the legislative 1998).) and therefore within EPA’s jurisdiction. history suggest that Congress expected EPA has always asserted that In particular, the Court held that EPA to regulate as solid and hazardous hazardous secondary materials are not emission control dust from steelmaking wastes certain materials that are excluded from its jurisdiction simply operations listed as hazardous waste destined for recycling (see 45 FR 33091, because someone claims that they will ‘‘K061’’ is a solid waste, even when sent citing numerous sections of the statute be recycled. EPA has consistently to a metals reclamation facility, at least and U.S. Brewers’ Association v. EPA, considered hazardous secondary where that is the treatment method 600 F. 2d 974 (DC Cir. 1979); 48 FR materials destined for ‘‘sham recycling’’ required under EPA’s land disposal 14502–04, April 3, 1983; and 50 FR to be discarded and, hence, to be solid restrictions program (American 616–618). wastes for Subtitle C purposes (see 45 Petroleum Institute v. EPA (‘‘API I’’), • Hazardous secondary materials FR 33093, May 19, 1980; 50 FR 638–39, 906 F.2d 729 (DC Cir. 1990)). In stored or transported prior to recycling Jan. 4, 1985). The U.S. Court of Appeals addition, the Court held that it is have the potential to present the same for the DC Circuit has agreed that reasonable for EPA to consider as types of threats to human health and the materials undergoing sham recycling are discarded (and solid wastes) listed environment as hazardous wastes stored discarded and, consequently, are solid wastes managed in units that are in part or transported prior to disposal. In fact, wastes under RCRA (see American wastewater treatment units, especially EPA found that recycling operations Petroleum Institute v. EPA, 216 F.3d 50, where it is not clear that the industry have accounted for a number of 58–59 (DC Cir. 2000)). actually reuses the materials (AMC II, significant damage incidents. For 907 F. 2d 1179 (DC Cir. 1990)). B. A Series of DC Circuit Court example, hazardous secondary materials It also is worth noting that two other Decisions on the Definition of Solid destined for recycling were involved in Circuits also have held that EPA has Waste one-third of the first 60 filings under authority over at least some materials RCRA’s imminent and substantial Trade associations representing destined for reclamation rather than endangerment authority, and in 20 of mining and oil refining interests final discard. The U.S. Court of Appeals the initial sites listed under the challenged EPA’s 1985 regulatory for the 11th Circuit found that ‘‘[i]t is Comprehensive Environmental definition of solid waste. In 1987, the unnecessary to read into the term Response, Compensation and Liability DC Circuit held that EPA exceeded its ‘discarded’ a congressional intent that Act (CERCLA) (48 FR 14474, April 4, authority ‘‘in seeking to bring materials the waste in question must finally and 1983). Congress also cited some damage that are not discarded or otherwise forever be discarded’’ (U.S. v. ILCO, 996 cases which involve recycling (H.R. disposed of within the compass of F.2d 1126, 1132 (11th Cir. 1993) Rep. 94–1491, 94th Cong., 2d Sess., at ‘waste’ ’’ (American Mining Congress v. (finding that used lead batteries sent to

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a reclaimer have been ‘‘discarded once’’ held that ‘‘* * * at least some of the that the combination of market by the entity that sent the battery to the secondary material EPA seeks to participants’ treatment of the materials, reclaimer)). In addition, the Fourth regulate as solid waste (in the mineral EPA required management standards, Circuit found that slag held on the processing rule) is destined for reuse as and the ‘‘identity principle’’ are a ground untouched for six months before part of a continuous industrial process reasonable set of tools to establish that sale for use as road bed could be a solid and thus is not abandoned or thrown the recycled hazardous secondary waste (Owen Electric Steel Co. v. EPA, away’’ (208 F.3d at 1056). materials and fertilizers are not 37 F.3d 146, 150 (4th Cir. 1994)). In its most recent opinion dealing discarded. In 1998, EPA promulgated a rule in with the definition of solid waste, Safe which EPA claimed Subtitle C Food and Fertilizer v. EPA (‘‘Safe C. October 2003 Proposal To Revise the jurisdiction over hazardous secondary Food’’), 350 F.3d 1263 (DC Cir. 2003), Definition of Solid Waste materials recycled by reclamation the Court upheld an EPA rule that Prompted by concerns articulated in within the mineral processing industry, excludes from the definition of solid various Court opinions decided up to the ‘‘LDR Phase IV rule’’ (63 FR 28556, waste hazardous secondary materials that point, in October 2003, EPA May 26, 1998). In that rule, EPA used to make zinc fertilizers, and the proposed a rule that material generated promulgated a conditional exclusion for fertilizers themselves, so long as the and reclaimed in a continuous process all types of mineral processing recycled materials meet certain within the same industry is not hazardous secondary materials destined handling, storage and reporting discarded for purposes of Subtitle C, for reclamation. EPA imposed a conditions and the resulting fertilizers provided the recycling process is condition prohibiting land-based storage have concentration levels for lead, legitimate (68 FR 61558, October 28, prior to reclamation because it arsenic, mercury, cadmium, chromium, 2003). ‘‘Same industry’’ was defined as considered hazardous secondary and dioxins that fall below specified industries sharing the same 4-digit materials from the mineral processing thresholds (Final Rule, ‘‘Zinc Fertilizers North American Industry Classification industry that were stored on the land to Made From Recycled Hazardous System (NAICS) code. be part of the waste disposal problem Secondary Materials’’ (‘‘Fertilizer In the same notice, EPA also solicited (63 FR 28581). The conditional Rule’’), 67 FR 48393, July 24, 2002). comment on several different exclusion decreased regulation over EPA determined that if these conditions alternatives to the proposed exclusion. spent materials stored prior to are met, the hazardous secondary The first alternative was whether to reclamation, but increased regulation materials used to make the fertilizer exclude from the definition of solid over by-products and sludges that have not been discarded. The conditions waste those hazardous secondary exhibit a hazardous characteristic, and apply to a number of recycled materials materials that are generated and that are stored prior to reclamation. EPA not produced in the fertilizer reclaimed in a continuous process on- noted that the statute does not authorize production industry, including certain site (as defined in 40 CFR 260.10), even it to regulate ‘‘materials that are zinc-bearing hazardous secondary if different industries were involved. destined for immediate reuse in another materials, such as brass foundry dusts. This exclusion would be based on the phase of the industry’s ongoing EPA’s reasoning was that market premise that materials recycled on-site production process.’’ EPA, however, participants, consistent with the EPA- in a continuous process are unlikely to took the position that materials that are required conditions in the rule, would be discarded because they would be removed from a production process for treat the exempted materials more like closely managed and monitored by a storage are not ‘‘immediately reused,’’ valuable products than like negatively- single entity that is intimately familiar and therefore are ‘‘discarded’’ (63 FR valued wastes and, thus, would manage with both the generation and 28580). them in ways inconsistent with discard. reclamation of the hazardous secondary The mining industry challenged the In addition, the fertilizers derived from material. In addition, no off-site rule, and the DC Circuit vacated the these recycled feedstocks are chemically transport of the hazardous secondary provisions that expanded jurisdiction indistinguishable from analogous material (with its attendant risks) would over characteristic by-products and commercial products made from raw occur, and there would be few questions sludges destined for reclamation materials (350 F.3d at 1269). The Court about potential liability in the event of (Association of Battery Recyclers v. EPA upheld the rule based on EPA’s mismanagement or mishap. (‘‘ABR’’), 208 F.3d 1047 (DC Cir. 2000)). explanation that market participants The second alternative was an The Court held that it had already manage materials in ways inconsistent exclusion for certain situations within resolved the issue presented in ABR in with discard, and the fact that the levels the chemical manufacturing industry its opinion in AMC I, where it found of contaminants in the recycled that might present unique recycling that ‘‘* * * Congress unambiguously fertilizers were ‘‘identical’’ to the situations. Specifically, within the expressed its intent that ‘solid waste’ fertilizers made with virgin raw chemical manufacturing industry, the (and therefore EPA’s regulatory materials. The Court held that this first manufacturer contracts out authority) be limited to materials that interpretation of ‘‘discard’’ was production of certain chemicals to are ‘discarded’ by virtue of being reasonable and consistent with the another manufacturer (referred to as disposed of, abandoned, or thrown statutory purpose. The Court noted that batch or tolling operations). The second away’’ (208 F.2d at 1051). It repeated the identity principle was defensible manufacturer may generate hazardous that materials reused within an ongoing because the differences in health and secondary materials that could be industrial process are neither disposed environmental risks between the two returned to the first chemical of nor abandoned (208 F.3d at 1051–52). types of fertilizers are so slight as to be manufacturer for reclamation. It explained that the intervening API I substantively meaningless. The third alternative would have and AMC II decisions had not narrowed However, the Court specifically stated provided a broader conditional the holding in AMC I (208 F.3d at 1054– that it ‘‘need not consider whether a exclusion from the RCRA hazardous 1056). material could be classified as a non- waste regulations for essentially all Notably, the Court did not hold that discard exclusively on the basis of the hazardous secondary materials that are storage before reclamation automatically market-participation theory’’ (350 F.3d legitimately recycled by reclamation. makes materials ‘‘discarded.’’ Rather, it at 1269). The Court only determined The purpose of this broader exclusion

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would have been to encourage deliberating on how to proceed with other environmental damage. These reclamation by lowering costs of this rulemaking effort, the Agency recycling and waste audits of other recycling, while still protecting human decided that additional information on companies’ facilities form a backbone of health and the environment. The hazardous secondary material recycling many of the transactions in the Agency suggested that additional would benefit the regulatory decision- hazardous secondary materials market. requirements or conditions might be making process, and would provide The second category of responsible appropriate to protect human health and stakeholders with a clearer picture of recycling practices consists of the the environment for this broader the hazardous secondary material control practices that ensure responsible exclusion, compared to the same- recycling industry in this country. management of any given shipment of industry exclusion that we proposed. Accordingly, the Agency examined hazardous secondary material, such as Examples of such additional conditions three basic issues that we believed were the contracts under which the could include recordkeeping and of particular importance to informing transaction takes place and the tracking reporting requirements, along with this rulemaking effort: systems in place that can inform a safeguards on storage or handling. • How do responsible generators and generator that its hazardous secondary In response to the October 2003 recyclers of hazardous secondary material has been properly managed. proposal, a number of commenters materials ensure that recycling is done As discussed later in today’s criticized the Agency specifically for not in an environmentally safe manner? preamble, these findings helped inform having conducted a study of the • To what extent have hazardous EPA’s decision to require that a potential impacts of the proposed secondary material recycling practices hazardous secondary material generator regulatory changes. These commenters resulted in environmental problems in conduct reasonable efforts to ensure its expressed the general concern that recent years, and why? materials are properly and legitimately deregulating hazardous secondary • Are there certain economic forces or recycled, and to require certain materials that are reclaimed in the incentives specific to hazardous recordkeeping requirements. manner proposed could result in secondary material recycling that can The goal of the environmental mismanagement of these materials and, explain why environmental problems problems study was to identify and thus, could create new cases of can sometimes originate from such characterize environmental problems environmental damage that would recycling activities? that have been attributed to some types require remedial action under federal or Reports documenting these studies of hazardous secondary material state authorities. Some of the have been available for comment in the recycling activity that are relevant for commenters further cited a number of docket for this rulemaking, under the the purpose of this rulemaking effort. To examples of environmental damage that following titles: address commenters’ concerns that historic damages are irrelevant to were attributed to hazardous secondary • An Assessment of Good Current current practices, EPA only included material recycling, including a number Practices for Recycling of Hazardous cases where damages occurred after of sites listed on the Superfund National Secondary Materials (EPA–HQ–RCRA– 1982 (post-RCRA and -CERCLA Priorities List (NPL). 2002–0031–0354 ) (‘‘successful However, other commenters to the implementation). The study identifies recycling study’’). October 2003 proposal expressed the 208 cases in which environmental • An Assessment of Environmental view that the great majority of these damages of some kind occurred from Problems Associated With Recycling of cases of recycling-related environmental some type of recycling activity and that Hazardous Secondary Materials (EPA– problems occurred before RCRA, otherwise fit the scope of the study. The HQ–RCRA–2002–0031–0355) CERCLA, or other environmental Agency believes that the occurrence of (‘‘environmental problems study’’). programs were established in the early • certain types of environmental problems 1980s. These commenters further argued A Study of Potential Effects of associated with current recycling that these environmental programs— Market Forces on the Management of practices shows that discard has most notably, RCRA’s hazardous waste Hazardous Secondary Materials occurred. In particular, instances where regulations and the liability provisions Intended for Recycling (EPA–HQ– materials were abandoned (e.g., in of CERCLA—have created strong RCRA–2002–0031–0358) (‘‘market warehouses) and which required incentives for proper management of forces study’’). removal overseen by a government recyclable hazardous secondary The results of these three studies have agency and expenditure of public funds materials and recycling residuals. informed and supported EPA’s decision clearly demonstrate that the hazardous Several commenters further noted that, making in today’s final rule. secondary material was discarded. Of because of these developments, The successful recycling study has the 208 damage cases, 69 cases (33%) industrial recycling practices have provided information to the Agency that involve abandoned materials. The changed substantially since the early has helped us determine what types of relatively high incidence of abandoned 1980s and present day generators and controls would be appropriate for materials likely reflects the fact that recyclers are much better environmental hazardous secondary materials sent for bankruptcies or other types of business stewards than in the pre-RCRA/CERCLA reclamation to determine that they are failures were associated with 138 (66%) era. Thus, they argued, cases of handled as commodities rather than of the cases. ‘‘historical’’ recycling-related wastes. EPA found that responsible In addition, the pattern of environmental damage are not recycling practices used by generators environmental damages that resulted particularly relevant or instructive with and recyclers to manage hazardous from the mismanagement of recyclable regard to modifying the current RCRA secondary materials fall into two general materials (including contamination of hazardous waste regulations for categories. The first category includes soils, groundwater, surface water and hazardous secondary materials the audit activities and inquiries air) is a strong indication that the recycling. performed by a generator of a hazardous hazardous secondary materials were secondary material to determine generally not managed as valuable D. Recycling Studies whether the entity to which it is sending commodities and were discarded. Of the In light of these comments on the such material is equipped to responsibly 208 damage cases, 81 cases (40%) October 2003 proposal, and in manage it without the risk of releases or primarily resulted from the

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mismanagement of recyclable hazardous recycling, where firms generate Further discussion of the recycling secondary materials. Mismanagement of hazardous secondary materials as by- studies, including the methodology and recycling residuals was the primary products of their main production limitations of the studies, can be found cause in 71 cases (34%). Often, in the processes and recycle the hazardous in the March 2007 supplemental case of mismanagement of recycling secondary materials for sale or for their proposal (72 FR 14178–83), and the residues, reclamation processes own reuse in production; and (3) studies themselves can be found in the generated residuals in which the toxic industrial inter-company recycling, docket for today’s rulemaking. components of the recycled materials where firms whose primary business is E. March 2007 Supplemental Proposal were separated from the non-toxic not recycling, but either use or recycle To Revise the Definition of Solid Waste components, and these portions of the hazardous secondary materials obtained hazardous secondary material were then from other firms, with the objective of To provide public notice on the mismanaged and discarded. Examples reducing the cost of their production recycling studies discussed above, in of this include a number of drum inputs. The report looks at how the March 2007, EPA published a reconditioning facilities, where large outcome from each model is potentially supplemental proposal (72 FR 14172, numbers of used drums were cleaned affected by three market characteristics: March 26, 2007). In addition, based on out to remove small amounts of (1) Value of the recycled product, (2) the comments received on the October remaining product such as solvent, and price stability of recycling output or 2003 proposal, EPA also decided to these wastes were then improperly inputs, and (3) net worth of the firm. restructure our approach to revising the definition of solid waste to more stored or disposed. While an individual firm’s decision- directly consider whether particular As discussed later in today’s making process is based on many factors materials are not considered preamble, these findings helped inform and attempting to extrapolate a firm’s ‘‘discarded’’ and thus are not solid and EPA’s decision to require that the likely behavior from a few factors could hazardous wastes subject to regulation hazardous secondary material be be an over-simplification, when used in under Subtitle C of RCRA. We agreed contained in the unit and managed in a conjunction with other pieces of with the many commenters on the manner that is at least as protective as information, the economic theory can be October 2003 proposal who said that an analogous raw material (where there quite illuminating. For example, whether materials are recycled within is an analogous material), that the according to the market forces study, the recycling residuals be properly the same NAICS code is not an industrial intra- and inter-company appropriate indication of whether they managed, and that the reclamation recyclers have more flexibility in facility and any intermediate facilities are discarded. NAICS designations are adjusting to unstable recycling markets have financial assurance. In addition, designed to be consistent only with (e.g., during price fluctuations, these the relatively small proportion of cases product lines, so that the effect of our companies can more easily switch from of damages from on-site recycling (13 of October 2003 proposal would be that recycling to disposal or from recycled the 208 cases (6%)) lends support for hazardous secondary materials inputs to virgin inputs). Therefore, they EPA’s decision to include fewer generated and reclaimed under the would be expected to be less likely to limitations on the exclusion for control of the generator would not be have environmental problems from hazardous secondary materials recycled excluded, even though the generator has over-accumulated materials. On the under the control of the generator. not abandoned the material and has The market forces study uses accepted other hand, certain specific types of every opportunity and incentive to economic theory to describe how commercial recycling, where the maintain oversight of, and responsibility various market incentives can influence product has low value, the prices are for, the material that is reclaimed (see a firm’s decision-making process when unstable, and/or the firm has a low net ABR, 208 F.2d at 1051 (noting that the recycling of hazardous secondary worth, could be more susceptible to discard has not taken place where the materials is involved. This study helps environmental problems from the over- producer saves and reuses secondary explain some of the possible accumulation of hazardous secondary materials)). fundamental economic drivers of both materials, especially when compared to Instead, in March 2007, EPA proposed the successful and unsuccessful recycling by a well-capitalized firm that two exclusions for hazardous secondary recycling practices, which, in turn, yields a product with high value. In materials recycled under the control of helped the Agency to design the both cases, these predicted outcomes the generator (one exclusion would exclusions being finalized today. appear to be supported by the results of apply to hazardous secondary materials As pointed out by some commenters the environmental problems study, managed in non-land-based units, to the October 2003 proposed rule, the which show the majority of problems whereas the other exclusion would economic forces shaping the behavior of occur at off-site commercial recyclers. apply to hazardous secondary materials firms that recycle hazardous secondary However, as shown by the successful managed in land-based units) and an materials are often different from those recycling study, generators who might additional exclusion for hazardous at play in manufacturing processes otherwise bear a large liability from secondary materials transferred to using virgin materials. The market poorly managed recycling at other another party for reclamation. forces study uses economic theory to companies have addressed this issue by For the exclusions for hazardous provide information on how certain carefully examining the recyclers to secondary materials reclaimed under characteristics can influence three which they send their hazardous the control of the generator, EPA different recycling models to encourage secondary materials to ensure that they described three circumstances under or discourage an optimal outcome. The are technically and financially capable which we believe that discard does not three recycling models examined are: (1) of performing the recycling. In addition, take place and where the potential for Commercial recycling, where the we have seen that successful recyclers environmental releases is low to non- primary business of the firms is (both commercial and industrial) have existent. The three situations involve recycling hazardous secondary materials often taken advantage of mechanisms, legitimate recycling of hazardous that are accepted for recycling from off- such as long-term contracts to help secondary materials that are generated site industrial sources (which usually stabilize price fluctuations, allowing and reclaimed at the generating facility, pay a fee); (2) industrial intra-company recyclers to plan their operations better. at a different facility within the same

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company, or through a tolling hazardous secondary materials are not facility (or facilities), and the arrangement. Under all three discarded and therefore are not solid intermediate facility must send the circumstances, the hazardous secondary wastes. hazardous secondary material to the materials must be generated and Finally, in EPA’s March 2007 reclamation facility that the generator reclaimed within the United States or its supplemental proposal, EPA proposed a selected. For the reasonable efforts territories. Because the hazardous definition of legitimate recycling that condition, we have included specific secondary material generator in these restructured the legitimacy factors questions in the regulatory language, situations still finds value in the originally proposed in October 2003. and are requiring both documentation hazardous secondary materials, has The proposed legitimacy factors would and certification. We are also clarifying retained control over them, and intends be used to determine whether the how the financial assurance condition to use them, EPA proposed to exclude recycling of hazardous secondary applies to reclamation and intermediate these materials from being a solid waste materials is legitimate. facilities excluded under the transfer- and, thus, from regulation under IV. How Do the Provisions in the Final based exclusion, including tailored Subtitle C of RCRA if the recycling is Rule Compare to Those Proposed on regulatory language for financial legitimate and if the hazardous March 26, 2007? assurance specific to these types of secondary materials are not facilities. We have also added a speculatively accumulated. EPA is finalizing the exclusions reference to the new legitimacy In those cases, however, where largely as proposed in March 2007, with provision in § 260.43. For further generators of hazardous secondary some revisions and clarifications. The discussion, see section VIII of this materials do not reclaim the materials following is a brief overview of the preamble. themselves, it often may be a sound revisions to the proposal, with Regarding legitimacy, we are adding business decision to ship the hazardous references to additional preamble legitimacy as a condition of the secondary materials to a commercial discussions for more detail. exclusions and the non-waste facility or another manufacturer for For the exclusion for hazardous determinations in this rule, but are not reclamation in order to avoid the costs secondary materials that are legitimately finalizing the language proposed in of disposing of the material. In such reclaimed under the control of the § 261.2(g) for all recycling. The new situations, the generator has generator, we are clarifying the scope of legitimacy provision can be found at relinquished control of the hazardous the exclusion, including addressing § 260.43. For further discussion, see secondary materials and the entity issues with defining ‘‘on-site,’’ ‘‘same section IX of this preamble. receiving such materials may not have company,’’ and ‘‘tolling arrangement.’’ Finally, for the non-waste the same incentives to manage the We have also added additional data determination process, we have limited hazardous secondary materials as a elements to the notification the categories for non-waste useful product, especially if they are requirement, clarified that the determinations to materials reclaimed in paid a fee for managing the hazardous hazardous secondary materials must be a continuous industrial process and secondary materials. contained when managed in non-land- materials indistinguishable from Accordingly, for the exclusion for based units, as well as in land-based products and we have revised the hazardous secondary materials units, because hazardous secondary criteria to make them more consistent transferred to another party for materials that are released to the across the two categories of non-waste reclamation, the Agency proposed environment and not immediately determinations. Furthermore, we are not conditions that, when met, would recovered are discarded, and added a finalizing the non-waste determination indicate that these hazardous secondary reference to the new legitimacy for materials reclaimed under the materials are not discarded. One of the provision in § 260.43. We have also control of the generator via a tolling conditions would require the generator revised the definition of land-based unit arrangement or similar contractual to make reasonable efforts to determine to be ‘‘an area where hazardous arrangement. For further discussion, see that its hazardous secondary materials secondary materials are placed in or on sections X and XIX of this preamble. will be properly and legitimately the land before recycling,’’ while also V. How Does the Concept of Discard recycled (thus demonstrating the clarifying that the definition does not Relate to the Final Rule? hazardous secondary material is not include production units. For further being discarded). Another condition discussion of the generator-controlled In the March 2007 supplemental would require the reclamation facility to exclusion, see section VII of this proposal, EPA explained how the have adequate financial assurance (thus preamble. concept of ‘‘discard’’ is the central demonstrating that the hazardous For the exclusion for hazardous organizing idea behind the revisions to secondary material will not be secondary materials that are transferred the definition of solid waste being abandoned). In addition, EPA proposed for the purpose of reclamation, we are finalized today (72 FR 14178). Basing that both the generator and reclaimer clarifying that hazardous secondary the revisions on ‘‘discard’’ reflects the would need to maintain shipping materials held at a transfer facility for fundamental logic of the RCRA statute. records (to demonstrate that the less than 10 days will be considered to As stated in RCRA Section 1004(27), hazardous secondary material was sent be in transport. We are also allowing the ‘‘solid waste’’ is defined as ‘‘* * * any for reclamation and was received by the use of intermediate facilities that store garbage, refuse, sludge from a waste reclaimer), and the reclaimer would be hazardous secondary materials for more treatment plant, or air pollution control subject to additional storage and than 10 days, provided the facilities facility and other discarded material residual management standards (to comply with the same conditions * * * resulting from industrial, address the instances of discard applicable to reclamation facilities. In commercial, mining and agricultural observed at off-site reclamation facilities addition, the hazardous secondary activities. * * *’’ Therefore, in the in the damage cases). material generator must select the context of this final rule, a key issue is In addition, in March 2007, EPA’s reclamation facility (or facilities) that the circumstances under which a supplemental proposal included a case- can be used and must perform hazardous secondary material that is by-case petition process to allow reasonable efforts on both the recycled by reclamation is or is not applicants to demonstrate that their intermediate facility and reclamation discarded.

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The March 2007 supplemental determinations in the March 2007 likely to maintain responsibility for the proposal represented a shift from the supplemental proposal, except to the materials’’ (72 FR 14185). approach taken in the October 2003 extent they are inconsistent with the EPA also determined that this proposal, which proposed to exclude determinations in this preamble, rationale applies to legitimate from the definition of solid waste any regarding the conditions for the solid reclamation taking place within the hazardous secondary material generated waste exclusions. In addition, EPA same company. In the case of same- and reclaimed in a continuous process notes that it did not reopen the specific company recycling, both the generating within the same industry, provided the details of the speculative accumulation facility and the reclamation facility (if reclamation was legitimate. ‘‘Same regulation regarding the time periods they are different) would be familiar industry’’ was defined as industries under which materials are to be with the hazardous secondary materials sharing the same 4-digit NAICS code. recycled, since these periods have been and the company would be ultimately The basis for that proposed exclusion part of the Agency’s regulations for liable for any mismanagement of the was the holding in American Mining many years and are familiar to persons hazardous secondary materials. Under Congress v. EPA (‘‘AMC I’’), 824 F.2d who are affected by the regulations. these circumstances, the incentive to 1177 (DC Cir. 1987) that materials avoid such mismanagement would be so destined for beneficial reuse in a A. Discard and the Generator-Controlled strong that mismanagement also would continuous process by the generating Exclusions be unlikely. industry are not discarded (68 FR In the March 2007 supplemental In the case of certain tolling 61563, 61564–61567). proposal, EPA determined that if the operations, EPA determined in the Commenters critical of the October generator maintains control over the March 2007 supplemental proposal that 2003 proposal argued, among other recycled hazardous secondary material, a certain specific type of tolling things, that EPA failed to present a the material is legitimately recycled arrangement provides equivalent reasoned analysis of the indicia of under the standards established in the assurance that recycling is performed discard (72 FR 14184–14185). In proposal, and the material is not ‘‘under the control of the generator’’ and evaluating these comments, EPA speculatively accumulated within the does not constitute discard. Under this determined that the effect of our meaning of EPA’s regulations, then the type of arrangement, one company (the October 2003 proposal would be that hazardous secondary material is not tolling contractor) contracts with a some hazardous secondary materials discarded. This is because the second company (the toll manufacturer) generated and reclaimed under the hazardous secondary material is being to produce a specialty chemical from control of the generator would not be treated as a valuable commodity rather specified unused materials identified in excluded, even though the generator than as a waste. By maintaining control the tolling contract. The toll had not abandoned the material and had over, and potential liability for, the manufacturer produces the chemical every opportunity and incentive to recycling process, the generator ensures and the production process generates a hazardous secondary material (such as a maintain oversight of, and responsibility that the hazardous secondary materials spent solvent) which is routinely for, the hazardous secondary material are not discarded (see ABR 208 F.3d reclaimed at the tolling contractor’s being reclaimed. Under these 1051 (‘‘Rather than throwing these facility. The typical toll manufacturing circumstances, we determined in March materials [destined for recycling] away, contract contains detailed specifications 2007 that discard has generally not the producer saves them; rather than about the product to be manufactured, occurred (72 FR 14185). Therefore, in abandoning them, the producer reuses including management of any hazardous the March 2007 supplemental proposal, them.’’)) (72 FR 14178). EPA decided to examine the concept of secondary materials that are produced EPA continues to believe that when a discard, which is the driving principle and returned to the tolling contractor for generator legitimately recycles behind the court’s holdings on the reclamation. Under this scenario, the definition of solid waste, rather than hazardous secondary material under its hazardous secondary material continues trying to fit materials into specific fact control, the generator has not to be managed as a valuable product, so patterns addressed by the court (see 72 abandoned the material and has every discard has not occurred. Moreover, FR 14175). opportunity and incentive to maintain because the contract specifies that the EPA continues to believe that the oversight of, and responsibility for, the tolling contractor retains ownership of, concept of discard is the most important hazardous secondary material that is and responsibility for, the hazardous organizing principle governing the reclaimed. secondary materials, there is a strong determinations we have made in today’s In determining when recycling occurs incentive to avoid any mismanagement final rule. In the series of decisions ‘‘under the control’’ of the generator, or release. In essence, the tolling discussed above relating to the RCRA EPA looked at three scenarios: contractor has outsourced a step in its definition of solid waste, the Court of Recycling performed on-site, recycling manufacturing process, but continues to Appeals for the DC Circuit has performed within the same company, take responsibility and maintain control consistently cited a plain language and recycling performed under certain of the process as a whole, including definition of discard, as meaning specific tolling arrangements. both the unused materials going into the ‘‘disposing, abandoning or throwing In the March 2007 supplemental process and the product and hazardous away.’’ Today’s final rule is consistent proposal, EPA noted that, of the 208 secondary materials resulting from the with that definition. Below is a recycling cases that caused process. discussion of each provision of the final environmental damage, only 13 For all three of these generator- rule with an explanation of how it (approximately 6%) occurred as a result controlled exclusions—reclamation relates to discard. Further discussion of of on-site recycling. We also agreed with performed on-site, within the same the concept of discard and its commenters on the October 2003 company, and via certain tolling relationship to specific provisions and proposal who asserted that ‘‘generators arrangements—EPA continues to find ways of implementing this rule is found who recycle materials on-site (even if that the facility owner still finds value in sections V.A through V.D, below. the reclamation takes place in a in the hazardous secondary materials, The Agency also incorporates in this different NAICS code) are likely to be has retained control over them, and preamble to the final rule all familiar with the material and more intends to reclaim them. Therefore, EPA

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is finalizing an exclusion for these become wastes when they are A final restriction on the generator- materials, with certain restrictions speculatively accumulated, because, at controlled exclusion from the definition discussed below. that point, they are considered to be of solid waste is that the hazardous In the March 2007 supplemental unlikely to be recycled and therefore secondary material must be generated proposal, EPA also noted that discarded. According to this regulatory and recycled within the United States.1 management in a land-based unit does provision, a hazardous secondary Because hazardous secondary materials not automatically indicate a hazardous material is accumulated speculatively if that are exported for recycling passes secondary material is being discarded. the person accumulating it cannot show out of the regulatory control of the As long as the hazardous secondary that the material is potentially federal government, making it difficult material is contained and is destined for recyclable; further, the person to determine if these activities are recycling under the control of the accumulating the hazardous secondary ‘‘under the control of the generator’’ and generator, it would still meet the terms material must show that during a because, as noted in the March 2007 of the exclusion. However, if the calendar year (beginning January 1) the supplemental proposal, we do not have hazardous secondary material is not amount of such material that is sufficient information about most managed as a valuable product and, as recycled, or transferred to a different recycling activities outside of the United a result, a significant release to the site for recycling, must equal at least States to decide whether discard is environment from the unit occurs and is 75% by weight or volume of the amount likely or unlikely (72 FR 14187), EPA not immediately recovered, the of that material at the beginning of the continues to find that this restriction is hazardous secondary material in the period. As noted in the March 2007 needed to properly define when the land-based unit would be considered supplemental proposal, this provision hazardous secondary material is not discarded (72 FR 14186). Thus, EPA already applies to hazardous secondary being discarded. proposed that the hazardous secondary materials that are not otherwise material must be contained in the land- B. Discard and the Transfer-Based considered to be wastes when recycled, Exclusion based unit in order for the exclusion to such as materials used as ingredients or be applicable. commercial product substitutes, As EPA noted in the March 2007 However, in making this finding that materials that are recycled in a closed- supplemental proposal, in cases where hazardous secondary materials managed loop production process, or unlisted generators of hazardous secondary in a land-based unit must be contained sludges and by-products being materials do not reclaim the materials in order to retain the exclusion, EPA did reclaimed (72 FR 14188). Given that a themselves, it often may be a sound business decision to ship the hazardous not intend to imply that hazardous significant portion of the damage cases secondary materials to be reclaimed to secondary materials managed in non- stemmed from over-accumulation of a commercial facility or another land-based units do not need to be hazardous secondary materials, EPA contained. Hazardous secondary manufacturer in order to avoid the costs continues to believe that a restriction on materials released to the environment of disposing of the material. speculative accumulation is needed to are not destined for recycling and are In such situations, EPA determined determine that the hazardous secondary clearly discarded whether they that the generator has relinquished material is being recycled and is not originated from a land-based unit or not. control of the hazardous secondary discarded. Because non-land-based units do not materials and the entity receiving such involve direct contact with the land, in In addition, as with all recycling materials may not have the same the March 2007 supplemental proposal, exclusions under RCRA, the excluded incentives to manage them as a useful EPA did not include an explicit hazardous secondary materials must be product (72 FR 14178). This is ‘‘contained’’ restriction for these units. recycled legitimately. As discussed in evidenced by the results of the However, as commenters noted, it is section IX of this preamble, EPA has environmental problems study, found in still possible for non-land-based units to long articulated the need to distinguish the docket of today’s final rule. Of the leak or otherwise release significant between ‘‘legitimate’’ (i.e., true) 208 damage cases EPA identified for the amounts of hazardous secondary recycling and ‘‘sham’’ recycling, March 2007 supplemental proposal, 195 materials to the environment, even if beginning with the preamble to the 1985 (about 94%) were from off-site third- they are not in direct contact with the regulations that established the party recyclers, with clear instances of land, resulting in those materials being definition of solid waste (50 FR 638, discard resulting in risk to human discarded. Thus, for today’s final rule, January 4, 1985) and continuing with health and the environment, including EPA is requiring that hazardous the October 2003 proposed codification cases of large-scale soil and ground secondary materials must be contained of criteria for identifying legitimate water contamination with remediation (whether it is managed in land-based recycling. Because there can be a costs in some instances in the tens of units or non-land-based units) in order significant economic incentive to millions of dollars. to identify the hazardous secondary manage hazardous secondary materials In addition, the market forces study in materials that are not being discarded outside the RCRA regulatory system, the docket for today’s rulemaking and, therefore, are not solid wastes. there is a potential for some handlers to supports the conclusion that the pattern Another restriction on the generator- claim that they are recycling, when, in of discard at off-site, third party controlled exclusions is the prohibition fact, they are conducting waste reclaimers is a result of inherent against speculative accumulation. As treatment and/or disposal in the guise of differences between commercial noted in the March 2007 supplemental recycling. While the legitimacy proposal, restrictions on speculative construct applies to both excluded 1 As discussed in section VII.C., persons taking accumulation (40 CFR 261.1(c)(8)) have recycling and the recycling of regulated advantage of the generator-controlled option must also notify the regulatory authority. This been an important element of the RCRA hazardous wastes, hazardous secondary notification requirement is needed to enable hazardous waste recycling regulations materials that are not legitimately credible evaluation of the status of hazardous since they were promulgated on January recycled (i.e., that are being treated and/ secondary materials under RCRA and to ensure the terms of the exclusions are being met by generators 4, 1985. Historically, hazardous or disposed in the guise of recycling) are and reclaimers. These types of notification secondary materials excluded from the discarded materials and, therefore, are requirements in this rule are being promulgated definition of solid waste generally solid wastes. under the authority of RCRA section 3007.

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recycling and normal manufacturing. As to ensure that the reclaimer intends to successful recycling study, an opposed to manufacturing, where the legitimately recycle the material and not examination of a company’s finances is cost of raw materials or intermediates discard it, and that the reclaimer (and an important part of many (or inputs) is greater than zero and any intermediate facility) will properly environmental audits. In addition, the revenue is generated primarily from the manage the material. environmental problems study showed sale of the output, hazardous secondary EPA continues to find that the that bankruptcies or other types of materials recycling can involve reasonable efforts condition is critical in business failures were associated with generating revenue primarily from determining when hazardous secondary 138 (66%) of the damage cases, and the receipt of the hazardous secondary materials sent to another party for market forces study identified a low net materials (72 FR 14182). Recyclers of reclamation are not discarded. worth of a firm as a strong indication of hazardous secondary materials in this According to the successful recycling a sub-optimal outcome of recycling. situation may thus respond differently study found in the docket for today’s To address the issue of the correlation from traditional manufacturers to rulemaking, generators of hazardous of financial health with the absence of economic forces and incentives, secondary materials frequently perform discard, EPA proposed in the March accumulating more inputs (hazardous audit activities and inquiries to 2007 supplemental proposal to require secondary materials) than can be determine whether the entity to which that reclamation facilities obtain processed (reclaimed). In addition, they are sending hazardous secondary financial assurance. The financial commercial recyclers appear to have materials is equipped to responsibly and assurance requirements are designed to less flexibility than in-house recyclers legitimately reclaim and manage those help EPA determine that the hazardous (e.g., during price fluctuations, in-house materials without the risk of releases or secondary material generator is not recyclers can more easily switch from other environmental damage. These discarding the hazardous secondary recycling to disposal or from recycled recycling and waste audits of other material by sending it to a reclamation inputs to virgin inputs, which companies’ facilities form a backbone of facility that is financially unsound. commercial recyclers cannot) (72 FR many of the transactions in the In addition, by obtaining financial 14183). hazardous secondary materials markets. assurance, the owner/operator of the After reviewing public comments on As noted in the March 2007 reclamation facility (or intermediate the recycling studies (see section XV.D. supplemental proposal, EPA’s facility) is making a direct of today’s preamble), EPA continues to successful recycling study quotes one demonstration that it will not abandon believe that conditions are needed large recycling and disposal vendor as the hazardous secondary material. under the transfer-based exclusion for stating that of its new customers, 60% Discard through abandonment was a the Agency to determine that these of the large customers and 30–50% of major cause of damages identified in the hazardous secondary materials are not the smaller customers now perform environmental problems study. Of the discarded.2 audits on them (72 FR 14191). Thus, 208 damage cases, 69 (33%) cases One key condition that reflects the although these practices are not involved abandoned materials. By basic premise underlying the exclusion universal, they do indicate that there are obtaining financial assurance, a is the condition that the hazardous currently many generators who reclaimer (or intermediate facility) is secondary material generator perform recognize the risk of third-party demonstrating that even if events and document reasonable efforts to recyclers discarding their hazardous beyond its control make its operations ensure that its hazardous secondary secondary materials and who take uneconomical, the hazardous secondary material will be properly and responsibility to ensure that this discard material will not be abandoned. legitimately recycled. As EPA explained does not occur. By codifying the Another major cause of damages in the March 2007 supplemental reasonable efforts condition of the identified in the environmental proposal, in order to demonstrate that transfer-based exclusion, EPA believes problems study was mismanagement of hazardous secondary materials will not that hazardous secondary materials recyclable materials, constituting the be discarded, generators who transfer generated by companies who take this primary cause of damage in 81 (40%) of their hazardous secondary materials to a type of responsibility are not being the 208 cases. Accordingly, in the third party must have a reasonable discarded. March 2007 supplemental proposal, understanding of who will be EPA has developed a reasonable EPA proposed a condition for reclaimers reclaiming the materials and how they efforts condition that is objective and is that they must manage the hazardous will be managed and reclaimed and a based on the types of information that secondary materials in at least as reasonable assurance that the recycling are typically gathered in environmental protective a manner as they would an practice is safe and legitimate (72 FR audits currently performed by analogous raw material, and in such a 14194). In order for a generator to generators. However, one piece of way that the hazardous secondary determine whether its hazardous information that is not included under materials would not be released into the secondary materials are not solid wastes the reasonable efforts provision being environment (72 FR 14195). After because they are not discarded, the finalized today is the financial health of reviewing the comments, EPA continues generator must make a reasonable effort the reclamation facility. While EPA to find that such a condition is needed agrees with comments received that for the Agency to determine that the 2 These are conditions beyond the prohibition on state that evaluating the financial health hazardous secondary materials are not speculative accumulation, the requirement that the of a company can be a useful exercise, discarded. hazardous secondary material be contained, and the and encourages companies to do so, it The third major source of damages requirement that the materials be legitimately is not an activity that lends itself to an identified in the environmental recycled, as described in section VII.C., which would also apply to the transfer-based exclusion. objective standard that would be problems study was mismanagement of The transfer-based exclusion also includes a workable in a solid waste identification residuals generated from the notification requirement, which is needed to enable regulation. reclamation activity, constituting the credible evaluation of the status of hazardous However, the financial health of a primary cause of damage in 71 (34%) of secondary materials under section 3007 of RCRA and to ensure the terms of the exclusions are being reclamation facility can still be a crucial the 208 cases. As discussed in the met by generators, intermediate facilities, and consideration in determining whether March 2007 supplemental proposal, reclaimers. discard is taking place. According to the EPA found that in many cases, the

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residuals were comprised of the most C. Discard and Non-Waste continues to believe that this is best hazardous components of the hazardous Determinations done through a case-by-case procedure secondary materials (e.g., In addition to the exclusions and is, therefore, finalizing the non- polychlorinated biphenyls (PCBs) from discussed above, the Agency is also waste determination process today. transformers) and were simply disposed finalizing a process for obtaining a case- In addition to ruling that hazardous of in on-site landfills or piles, with little specific non-waste determination for secondary materials recycled within a regard for the environmental certain hazardous secondary materials continuous industrial process are not consequences of such mismanagement that are recycled. This process allows a discarded and therefore not solid waste, or possible CERCLA liabilities petitioner to receive a formal the courts have also said that hazardous associated with cleanup of these determination from EPA (or the state, if secondary materials destined for releases. Therefore, EPA proposed that the state is authorized for this provision) recycling in another industry are not ‘‘any residuals that are generated from that its hazardous secondary material is automatically discarded. In the Safe reclamation processes will be properly not discarded and therefore is not a Food decision, the Court stated, managed. If any residuals exhibit a solid waste. The procedure allows EPA ‘‘[n]obody questions that virgin * * * hazardous characteristic according to or the authorized state to take into feedstocks are products rather than wastes. Once one accepts that premise, subpart C of 40 CFR part 261, or account the particular fact pattern of the it seems eminently reasonable to treat themselves are listed hazardous wastes, reclamation operation to determine that [recycled] materials that are they are hazardous wastes (if discarded) the hazardous secondary material in question is not a solid waste. indistinguishable in the relevant and must be managed according to the respects as products as well’’ (350 F.3d applicable requirements of 40 CFR parts The determination is available to applicants who demonstrate (1) that at 1269). In Safe Food, the court 260 through 272’’ (72 FR 17195). EPA their hazardous secondary materials are accepted EPA’s determination that the continues to find that this condition is reclaimed in a continuous industrial ‘‘relevant respects’’ were that ‘‘market important to clarify the regulatory status process, or (2) that the materials are participants treat the * * * materials of these waste materials, and to indistinguishable in all relevant aspects more like valuable products rather than emphasize in explicit terms that the from a product or intermediate. like negatively-valued wastes managing residuals generated from reclamation As discussed earlier, court decisions them in ways inconsistent with discard, operations must be managed properly have made it clear that hazardous and that the fertilizers derived from (i.e., consistent with federal and state secondary materials reclaimed in a these recycled feedstocks are chemically requirements). continuous industrial process are not indistinguishable from analogous Finally, other provisions of the discarded and, therefore, are not solid commercial products made from virgin transfer-based exclusion help ensure waste. As discussed in the March 2007 materials.’’ Id. As a result, EPA that the hazardous secondary material is supplemental proposal, EPA believes recognized in the March 2007 properly transferred to the reclamation that the generator-controlled exclusion supplemental proposal, and continues to believe today, that there may be some facility for recycling. Only the also excludes from the definition of instances that would benefit from a non- hazardous secondary material generator, solid waste hazardous secondary waste determination (72 FR 14203). transporter, intermediate facility and materials recycled in a continuous industrial process (72 FR 14202). In Thus, we are also finalizing the non- reclaimer can handle the material. (Note waste determination process for that, as with hazardous waste, a effect, hazardous secondary materials reclaimed in a continuous process are a hazardous secondary materials hazardous secondary material can be subset of the hazardous secondary indistinguishable in all relevant aspects held up to 10 days at a transfer facility materials reclaimed under the control of from a product or intermediate. and still be considered as being in the generator that are excluded under transport.) The hazardous secondary VI. When Will the Final Rules Become today’s rule. Effective? material generators, intermediate, and However, EPA also recognized in the reclamation facilities claiming the March 2007 supplemental proposal that This final rule is effective on exclusion must keep records of the production processes can vary widely December 29, 2008. Section 3010(b) of hazardous secondary material from industry to industry. Thus, in RCRA allows EPA to promulgate a rule shipments, and reclamation and some cases, EPA may need to evaluate with a period for the effective date intermediate facilities must send case-specific fact patterns to determine shorter than six months where the confirmations of receipt back to the whether an individual hazardous Administrator finds that the regulated hazardous secondary material generator. secondary material is reclaimed in a community does not need additional Thus, all parties responsible for the continuous industrial process, and time to come into compliance with the excluded hazardous secondary materials therefore not a solid waste.3 EPA rule. This rule does not impose any will be able to demonstrate that the requirements on the regulated materials were in fact sent for 3 See, for example the ABR decision, where the Court acknowledged that the term ‘‘discard’’ could ‘‘Some mineral processing secondary materials reclamation and arrived at the intended be ‘‘ambiguous as applied to some situations, but covered under the Phase IV Rule may not proceed facility and were not discarded in not as applied to others,’’ and particularly cited the directly to an ongoing recycling process and may transit. For hazardous secondary difficulty in examining the details of the many be analogous to the sludge in AMC II. The parties material generators who are exporting to processes in the mineral processing industry (208 have presented this aspect of the case in broad F.3d at 1056). While the court overturned EPA’s abstraction, providing little detail about the many other countries for reclamation, notice regulations for casting too wide a net over processes throughout the industry that generate and consent must be obtained, thus continuous industrial processes, it acknowledged residual material of the sort EPA is attempting to facilitating oversight of the hazardous that there are a large number of processes, some of regulate under RCRA, * * *’’ 208 F.3d at 1056. which may be continuous and some of which may In the case of today’s final rule, which applies secondary material when sent beyond not. Determining what is a continuous process in across industries, there are far larger and more the borders of the United States, helping the mineral processing industry, according to the diverse processes. While EPA believes it is to ensure that it is recycled rather than Court, would require examination of the details of establishing a reasonable set of principles, they the processes and does not lend itself, well, to must still be applied to the details of the industrial discarded. broad abstraction. Specifically, the Court stated, processes in question.

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community; rather, the rule provides reclaimed under the control of the materials to the reclaiming facility, flexibility in the regulations with which generator’’ is finalized in 40 CFR 260.10 which is controlled by the generating the regulatory community is required to and consists of three parts. The first part facility, and that either the generating comply. The Agency finds that the applies to hazardous secondary facility or the reclaiming facility has regulatory community does not need six materials generated and legitimately acknowledged full responsibility for the months to come into compliance. reclaimed at the generating facility. For safe management of such hazardous purposes of this exclusion, ‘‘generating secondary materials; or (2) that the VII. Exclusion for Hazardous facility’’ means all contiguous property generating facility will send the Secondary Materials That Are owned, leased, or otherwise controlled hazardous secondary materials to the Legitimately Reclaimed Under the by the hazardous secondary material reclaiming facility, that both facilities Control of the Generator generator, and ‘‘hazardous secondary are under common control, and that A. What Is the Purpose of This material generator’’ means any person either the generating facility or the Exclusion? whose act or process produces reclaiming facility has acknowledged hazardous secondary materials at the full responsibility for the safe Sections 261.2(a)(2)(ii) and generating facility. A facility that management of such hazardous 261.4(a)(23), being finalized today, collects hazardous secondary materials secondary materials. This certification excludes from the definition of solid from other persons (for example, when should be made by an official familiar waste those hazardous secondary mercury-containing equipment is with the corporate structure of both the materials which remain under the collected through a special collection generating and the reclaiming facilities. control of the generator when program) is not the hazardous secondary The certification should be retained at legitimately reclaimed. By maintaining material generator of those materials. the site of the generating facility. control over, and potential liability for, Under this definition, if a generator The third part of the definition the hazardous secondary materials and contracts with a different company to applies to hazardous secondary the reclamation process, the generator reclaim hazardous secondary materials materials that are generated pursuant to ensures that such materials have not at the generator’s facility, either a written contract between a tolling been discarded. When reclaimed under temporarily or permanently, the contractor and a toll manufacturer and the control of the generator, the materials would be considered under legitimately reclaimed by the tolling hazardous secondary materials are being the control of the generator. However, contractor. For purposes of this treated as a valuable commodity rather generators sometimes contract with a exclusion, a tolling contractor is a than a waste. However, if such second company to collect hazardous person who arranges for the production hazardous secondary materials are secondary materials at the generating of a product or intermediate made from released into the environment and are facility and the materials are specified unused materials through a not recovered immediately, they have subsequently reclaimed at the facility of written contract with a toll been discarded and the generator is the second company. In that situation, manufacturer. The toll manufacturer is subject to all applicable federal and the hazardous secondary materials the person who produces a product or state regulations, as well as applicable would no longer be considered ‘‘under intermediate made from specified cleanup authorities. the control of the generator’’ and would unused materials pursuant to a written B. Scope and Applicability instead be managed under the exclusion contract with a tolling contractor. Under for materials transferred for reclamation. today’s final rule, the tolling contractor EPA is today excluding from the The second part of the definition must certify that it has a written definition of solid waste those applies to hazardous secondary contract with the toll manufacturer to hazardous secondary materials that are materials generated and legitimately manufacture a product or intermediate legitimately reclaimed under the control reclaimed at different facilities if the made from specified unused materials, of the generator, provided they are not reclaiming facility is controlled by the and that the tolling contractor will speculatively accumulated and they are generator or if a person as defined in reclaim the hazardous secondary reclaimed within the United States or its § 260.10 controls both the generator and materials generated during the territories. In addition, the generator the reclaimer. For purposes of this manufacture of the product or must submit a notification of the exclusion, ‘‘control’’ means the power to intermediate. The tolling contractor exclusion to EPA or the authorized state direct the policies of the facility, must also certify that it retains and the hazardous secondary material whether by the ownership of stock, ownership of, and liability for, the must be contained in the units in which voting rights, or otherwise, except that hazardous secondary materials that are it is stored. The provision excluding contractors who operate facilities on generated during the course of the hazardous secondary materials that are behalf of a different person as defined manufacture, including any releases of under the control of the generator and in § 260.10 shall not be deemed to hazardous secondary materials that that are managed in land-based units is ‘‘control’’ such facilities. Thus, when a occur during the manufacturing process found at 40 CFR 261.4(a)(23), while the contractor operates two facilities, each at the toll manufacturer’s facility. This provision excluding such materials that of which is owned by a different certification should be made by an are managed in non-land-based units is company, hazardous secondary official familiar with the terms of the found at 40 CFR 261.2(a)(2)(ii). A land- materials generated at the first facility written contract and should be retained based unit is defined in 40 CFR 260.10 and reclaimed at the second facility are at the site of the tolling contractor. as an area where hazardous secondary not considered ‘‘under the control of the materials are placed in or on the land generator’’ and must use the exclusion C. Restrictions and Requirements before recycling, but this definition does for such materials that are transferred Hazardous secondary materials must not include land-based production for reclamation. be contained. The regulations at 40 CFR units. Examples of land-based units Under the definition promulgated in 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23) include surface impoundments and today’s final rule, the generating facility apply to hazardous secondary materials piles. must provide one of two certifications: that are generated and legitimately The definition of ‘‘hazardous (1) That the generating facility will send reclaimed under the control of the secondary material generated and the indicated hazardous secondary generator in the United States or its

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territories. Under these provisions, the whether by mismanagement of the managed as a valuable raw material, hazardous secondary materials must be hazardous secondary materials or by intermediate, or product and that the contained, whether they are stored in storing acidic materials in a tank not materials had been discarded. As a land-based units or non-land-based constructed to handle them or because result, the hazardous secondary units. Generally, such material is of the failure to monitor the structural materials in the unit would be ‘‘contained’’ if it is placed in a unit that integrity of the unit, the result is that the hazardous wastes and these units would controls the movement of the hazardous unit would come under Subtitle C be subject to the RCRA hazardous waste secondary material out of the unit and regulation. regulations. into the environment. These restrictions Conversely, a tank or a surface Speculative accumulation. In addition support EPA’s determination that impoundment in good condition may to the containment provision, hazardous materials managed in this manner are experience small releases resulting from secondary materials that are generated not discarded. normal operations of the facility. and legitimately reclaimed under the In the event of a release from a unit Sometimes a material may escape from control of the generator are subject to to the environment, the hazardous primary containment and may be the speculative accumulation provisions secondary materials that remain in the captured by secondary containment or of 40 CFR 261.1(c)(8). If these materials unit may or may not meet the terms of some other mechanism that would are speculatively accumulated, they are the exclusion. They would be prevent the material from being released considered discarded. EPA did not considered solid wastes if they are not to the environment or would allow propose changes to the speculative immediate recovery of the material. In accumulation provisions in its March managed as a valuable raw material, that case, the unit would retain its 26, 2007 proposal. intermediate, or product, and as a result, exclusion from RCRA hazardous waste Legitimate Recycling. Under this a ‘‘significant’’ release of hazardous regulation and the hazardous secondary exclusion, hazardous secondary secondary materials from the unit to the materials in the unit would still be materials under the control of the environment were to take place and the excluded from the definition of solid generator must be legitimately materials were not immediately waste, even though any such materials reclaimed, as specified under 40 CFR recovered. If such a significant release that had been released would be 260.43. Legitimate recycling must were to occur, the hazardous secondary considered discarded if not immediately involve a hazardous secondary material materials remaining in the unit would recovered and would be subject to that provides a useful contribution to be considered solid and hazardous appropriate regulation. One specific the recycling process or product and the wastes and the unit would be subject to example of ‘‘contained’’ hazardous recycling process must produce a the appropriate hazardous waste secondary materials would be furnace valuable product or intermediate. In regulations. For example, an acidic bricks collected from production units addition, as part of a legitimacy hazardous secondary material and stored on the ground in walled bins determination, persons must consider undergoing reclamation could be stored before being used as feedstocks in the whether the hazardous secondary in a tank that experienced a failure. A metals production process. If there were material is managed as a valuable facility might fail to monitor the very small releases from the walled bins product and must consider the levels of structural integrity of the tank, as most due to precipitation runoff, such toxics in the product of the recycling product tanks are monitored, or the tank releases would not cause the storage process as compared to analogous might not be constructed to contain bins to be subject to Subtitle C controls. products made from virgin materials. acidic hazardous secondary materials, It should be noted that a ‘‘significant’’ The details of the legitimacy provision causing a significant release of such release is not necessarily large in are discussed in section IX of this materials into the environment that is volume. Such a release could include an preamble. not immediately recovered. The unit unaddressed small release to the Notification. Under today’s rule, itself would consequently be considered environment from a unit that, if allowed hazardous secondary material a hazardous waste management unit to continue over time, could cause generators, tolling contractors, toll because the hazardous secondary significant damage. Any one release manufacturers, and reclaimers (where materials were not being managed as a may not be significant in terms of the generator and reclaimer are part of valuable raw material, intermediate, or volume. However, if the cause of such the same company, but located at product, as evidenced by the failure to a release remains unaddressed over time different facilities) managing hazardous monitor it for structural integrity, and hazardous secondary materials are secondary materials reclaimed under resulting in the release. Thus, the unit managed in such a way that the release the control of the generator are required and any remaining waste would be is likely to continue, the materials in the to submit a notification prior to subject to Subtitle C controls because unit would not be contained. For operating under this exclusion and by the hazardous secondary materials in example, a rusting tank or containers March 1 of each even numbered year the unit have been discarded. In that are deteriorating may have a slow thereafter to the EPA Regional addition, any of the released materials leak that, if unaddressed, could, over Administrator using EPA Form 8700– that were not immediately recovered time, cause a significant environmental 12. In states authorized by EPA to would also be considered discarded impact. Similarly, a surface administer the RCRA Subtitle C and, if hazardous, subject to appropriate impoundment with a slow, unaddressed hazardous waste program, notifications federal or state regulations and leak to groundwater could result, over may be sent to the state Director. The applicable authorities. Thus, to be time, in significant damage. Another notice must include: excluded from the definition of solid example would be a large pile of lead- • The name, address and EPA ID waste, the facility has an obligation to contaminated finely ground dust number (if applicable) of the facility; manage the material as it would any raw without any provisions to prevent wind • The name and telephone number of material, intermediate or product dispersal of the dust. Such releases, if a contact person; because of its value. This includes, for unaddressed over time and likely to • The NAICS code of the facility; example, operating and maintaining continue, would mean that the • The exclusion under which the storage units in the same manner as hazardous secondary materials hazardous secondary materials will be product units. In the above example, remaining in the unit were not being managed (e.g., 40 CFR 261.2(a)(2(ii)

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and/or 40 CFR 261.4(a)(23) for hazardous secondary materials for at identifying it by its characteristics, hazardous secondary materials managed least one year. For example, a facility section 3010 of RCRA requires in a land-based unit); that has previously notified it is generators of such materials to submit a • When the facility expects to begin managing hazardous secondary notification to EPA within 90 days. managing the hazardous secondary materials under the exclusion, but then Since the changes finalized today could materials in accordance with the subsequently chooses to stop managing substantially affect the universe of exclusion; all hazardous secondary materials for a • facilities in the Subtitle C system, we A list of hazardous secondary period of at least one year, must notify believe the notifications are appropriate. materials that will be managed the Regional Administrator. However, if according to the exclusion (reported as this same facility only stopped The intent of this notification the EPA hazardous waste numbers that managing one type of hazardous requirement is to provide basic would apply if the hazardous secondary secondary material (but continued to information to the regulatory agencies materials were managed as hazardous manage another type of hazardous about who will be managing hazardous waste); secondary material under the exclusion) secondary materials under the • For each hazardous secondary it would not need to notify, and could exclusion. The specific information material, whether the material, or any just update its list of hazardous included in today’s notification portion thereof, will be managed in a secondary materials during the next requirement will enable regulatory land-based unit; periodic re-notification submitted every agencies to monitor compliance • The quantity of each hazardous two years. Additionally, if a reclaimer or adequately and to ensure hazardous secondary material to be managed intermediate facility managing secondary materials are managed annually; and • hazardous secondary materials under according to the exclusion and not The certification (included in EPA the transfer-based exclusion requests discarded. For example, in the Form 8700–12) signed and dated by an release of financial assurance under 40 notification, EPA requires facilities to authorized representative of the facility. CFR 261.143(h), it is clear the facility include the quantity of hazardous Generators and reclaimers are has ‘stopped’ managing hazardous required to notify on a per facility basis. secondary materials that will be secondary materials, and, therefore, managed according to the exclusion and In other words, facilities managing must notify the Regional Administrator hazardous secondary materials will whether certain types of hazardous (for additional clarification, notification secondary materials will be managed in need to submit a notification form in does not ‘trigger’ the process for accordance with the exclusion. One land-based units. This information can releasing financial assurance; instead, a be used to assist RCRA inspectors in notification cannot cover two or more facility wishing to be released from determining which facilities may facilities. Furthermore, each facility financial assurance obligations must warrant greater oversight and provides a need only use one notification form to notify it has ‘stopped’ managing basis for setting enforcement priorities. list all of the hazardous secondary hazardous secondary materials). Of materials to be managed under the course, a facility could certainly choose Furthermore, requiring facilities to exclusion (i.e., facilities need not file to begin managing hazardous secondary notify when they have stopped separate notifications for each materials again and would simply have managing hazardous secondary hazardous secondary material). to submit a notification in compliance materials allows states to follow-up and We are also requiring facilities that with 40 CFR 260.42. ensure that hazardous secondary stop managing hazardous secondary We note that the requirement to materials were not discarded. materials in accordance with the provide this notification is not a Notification information is collected in exclusion to notify the Regional condition of the exclusion. Thus, failure EPA’s RCRAInfo database, which is the Administrator within 30 days using the to comply with the requirement national repository of all RCRA Subtitle same EPA Form 8700–12. Notification constitutes a violation of RCRA, but C site identification information, in this instance serves two objectives: does not affect the excluded status of whether collected by a state authority or (1) It allows states to follow up with the the hazardous secondary materials. EPA. EPA provides public access to this facility to verify that the hazardous We believe our authority to request information through EPA’s public Web secondary material has not been such information is inherent in our site at http://www.epa.gov/enviro/html/ discarded; and (2) it maintains the authority to determine whether a rcris/ (or other successor Web site). usability of the database to enable states material is discarded, and we consider This notification requirement is the to monitor compliance and, for today’s this to be the minimum information same as the notification requirement for transfer-based exclusion, to assist needed to enable credible evaluation of today’s transfer-based exclusion found generators with performing reasonable the status of hazardous secondary efforts on potential reclaimers. We materials under section 3007 of RCRA in section VIII.C. of today’s preamble. consider a facility to have ‘stopped’ and to ensure that the terms of the Sending to an intermediate facility. We managing hazardous secondary exclusions are being met by generators note that under this exclusion, materials when a facility no longer and reclaimers. EPA further believes hazardous secondary materials may not generates, manages and/or reclaims that RCRA section 3007 allows us to be sent to an intermediate facility as hazardous secondary materials under gather information about any material defined in 40 CFR 260.10 (i.e., a facility, the exclusion and does not expect to when we have reason to believe that it other than a generator or reclaimer, that manage any amount of hazardous may be a solid waste and possibly a stores hazardous secondary materials for secondary material under the exclusion hazardous waste within the meaning of more than 10 days). If hazardous for at least one year. This includes if the RCRA section 1004(5). Section 2002 also secondary materials are sent to facility chooses to manage the gives EPA authority to issue regulations intermediate facilities, they would not hazardous secondary materials as necessary to carry out the purposes of meet the definition of hazardous hazardous waste or the facility chooses RCRA. secondary materials reclaimed under to temporarily suspend management of We also note that after EPA the control of the generator, and they are hazardous secondary materials and does promulgates regulations listing a subject to the conditions of the transfer- not expect to manage any amount of material as a hazardous waste or based exclusion, discussed below.

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D. Terminating the Exclusion exhibited a hazardous waste transferred to another company or Units managing excluded hazardous characteristic for Subtitle C purposes person for the purpose of reclamation secondary materials are not subject to from their point of generation. Persons (i.e., ‘‘transfer-based exclusion’’), the closure regulations in 40 CFR parts operating under the exclusion are also provided that certain conditions are 264 and 265 subpart G. However, when required to notify EPA or the authorized met. Reclamation that conforms to these the use of these units is ultimately state. conditions would not involve discard, Persons taking advantage of today’s discontinued, all owners and operators and therefore the hazardous secondary exclusion that fail to meet the must manage any remaining hazardous materials would not be regulated as requirements may be subject to an secondary materials that are not solid waste. As with all recycling- enforcement action. EPA could choose reclaimed and remove or decontaminate related exclusions and exemptions, such to bring an enforcement action under all hazardous residues and excluded hazardous secondary materials RCRA section 3008(a) for violations of contaminated containment system would also need to be recycled the hazardous waste requirements legitimately. For further discussion on components, equipment structures, and occurring from the time the hazardous soils. These hazardous secondary how the transfer-based exclusion relates secondary materials are generated to the concept of discard, see section materials and residues, if no longer through the time they are ultimately intended for reclamation, would also no V.B. of this preamble. disposed of or reclaimed. The Agency The conditions that must be met for longer be eligible for the exclusion affirms in this preamble that § 261.2(f) (which only applies to materials that this exclusion are based on our analysis applies to claims that hazardous of how successful third-party recycling will be reclaimed). Failure to remove secondary materials are not solid waste currently operates (and, conversely, these materials within a reasonable time because they are being legitimately how unsuccessful third-party recycling frame after operations cease could cause recycled. Respondents in enforcement practices can result in recyclable the facility to become subject to the full cases should be prepared to demonstrate hazardous secondary materials being Subtitle C requirements if the Agency that they meet the terms of the discarded), and are supported by the determines that recycling is no longer exclusion or exemption, which includes information contained in the feasible. While this final rule does not demonstrating that the recycling is rulemaking record, including the set a specific time frame for these legitimate. Appropriate documentation recycling studies found in the public activities, the Agency believes that they must be provided to the enforcing docket for today’s rulemaking and typically should be completed within agency to demonstrate that the material the time frames established for is not a solid waste or is exempt from discussed previously in section III.D. of analogous activities. For example, the regulation. In addition, the recycler of today’s preamble and in the preamble to requirements for product tanks under 40 the hazardous secondary materials the March 2007 supplemental proposal CFR 261.4(c) allow 90 days for removal should be prepared to show they have at 72 FR 14178–14183. For example, the of hazardous material after the unit the necessary equipment to perform the successful recycling study indicates that ceases to be operated for manufacturing. recycling operation. Furthermore, any many responsible generators examine This time frame should serve as a release of the hazardous secondary the recycler’s technical capabilities, guideline for regulators in determining materials to the environment that is not business viability, environmental track on a case-by-case basis whether owners immediately cleaned up would be record, and other relevant questions and operators have completed these considered discarded and, thus, the before sending hazardous secondary activities within a reasonable time hazardous secondary materials that materials for recycling. Currently, these frame. In any event, these hazardous were released would be a solid waste recycler audits, which can be thought of secondary materials remain subject to and potentially subject to the RCRA as a form of environmental ‘‘due the speculative accumulation hazardous waste regulations. diligence,’’ are in essence a precaution restrictions in 40 CFR 261.1(a)(8), which The Agency believes that this to minimize the prospect of incurring includes both a time limitation and a approach provides hazardous secondary CERCLA liability in the event that the requirement that the facility be able to material generators with an incentive to recycling, or lack thereof, results in the show there is a feasible means of handle or (in the case of tolling) to release of material to the environment. recycling the hazardous secondary ensure that their contractors handle the The fact that these companies are material. hazardous secondary materials pursuant willing to incur the expense of auditing to the requirements. It also encourages recyclers as a business practice is of E. Enforcement each hazardous secondary material itself a marketplace affirmation that Under today’s rule, hazardous generator to take appropriate steps to sending hazardous secondary materials secondary materials generated and ensure that such materials are properly to other companies for recycling legitimately reclaimed within the handled and legitimately reclaimed by involves some degree of risk. Although United States under the control of the others in the management chain. If there these risks may be small when the generator are excluded from RCRA is a release of the hazardous secondary recycler is a well-established, successful Subtitle C regulation, but are subject to materials into the environment, they are enterprise with a good record of certain restrictions, principally considered discarded and subject to all environmental stewardship, it also is speculative accumulation, legitimate applicable hazardous waste regulations apparent that not all recyclers fit this recycling, and containment. Persons and cleanup authorities. profile, as evidenced in the study of that handle these hazardous secondary environmental problems associated with materials are responsible for VIII. Exclusion for Hazardous hazardous secondary materials maintaining the exclusion by ensuring Secondary Materials That Are recycling. Thus, we believe that there is that these restrictions are met. If the Transferred for the Purpose of sufficient basis for the Agency to place hazardous secondary materials are not Legitimate Reclamation certain conditions on this exclusion for managed pursuant to these restrictions, Today, EPA is also finalizing an the generator to determine that the they are not excluded. They would then exclusion from the definition of solid hazardous secondary material is not be considered solid and hazardous waste for hazardous secondary materials discarded, particularly since we expect wastes if they were listed or they that are generated and subsequently that this rulemaking could encourage

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some companies that are currently not from the generator to the reclaimer and involved in the process. Of the 208 involved with hazardous secondary not be handled by anyone else other damage cases in the environmental materials recycling to enter the than a transporter. Thus, as proposed, a problems study, 45 (22%) cases were business. generator that wished to maintain the from intermediate facilities. Therefore, excluded status of its hazardous EPA believes the record for requiring A. What Is the Purpose of This secondary materials would not be able Exclusion? the conditions for the reclamation to ship those materials to a middleman, facility also supports promulgation of In finalizing this conditional such as a broker. We said that we the same conditions for intermediate exclusion, EPA’s objectives are to believed that a generator who ships facilities. encourage the reclamation of hazardous materials to a middleman, such as a In addition, in the March 2007 secondary materials and reduce broker typically does not know who will supplemental proposal, the Agency unnecessary regulatory compliance ultimately manage and reclaim them, or recognized that, in some cases, recycling costs to industry, while still maintaining how they will be reclaimed (72 FR of an excluded hazardous secondary protection of human health and the 14189). However, we requested material may involve more than one environment. After considering the comment on allowing middlemen to reclamation step. For example, a entire rulemaking record, including participate in the exclusion. recyclable hazardous secondary comments submitted by the public, we Comments on the proposal disputed material, such as an electroplating continue to believe that this exclusion is the assumption that the generator does secondary material, might have a a workable, common-sense approach to not know the final destination when relatively high moisture content and a meeting these objectives; is well shipping to an intermediate facility, somewhat variable chemical supported by the record for this saying, that in certain cases, the composition. Such materials might need rulemaking, including the recycling generator works with an intermediate to be dried and blended to a suitable, studies that EPA has conducted; and, in facility to choose the reclamation consistent specification before they are important ways, reflects current good facility and the final destination is amenable to a ‘‘final’’ reclamation industry practices that are used by arranged by contract before the process (e.g., metals smelting). In this responsible generators for recycling hazardous secondary materials are example, the two different reclamation hazardous secondary materials. shipped. Commenters also asserted that processes might be conducted by B. Scope and Applicability such arrangements allow for different companies and/or at different consolidation of shipments, making facilities. The Agency continues to see The conditional exclusion for the recycling economical for small no reason to discourage this kind of transfer-based approach applies to businesses who generate hazardous recycling. The transfer-based exclusion hazardous secondary materials that are secondary materials. currently regulated as hazardous wastes EPA agrees with the comments that finalized today is available for because their recycling involves some types of intermediate facilities hazardous secondary materials that are reclamation—specifically, spent could participate in the exclusion, while recycled by means of one or more materials, listed sludges, and listed by- still allowing the hazardous secondary reclamation processes, including when products. It would not be available for material generator to perform reasonable they occur at more than one reclamation hazardous secondary materials that are efforts to ensure that the hazardous facility. regulated as hazardous wastes for other secondary material is properly and The conditions for generators and reasons, such as ‘‘inherently waste-like legitimately recycled. Thus, in the final reclaimers under the terms of this materials,’’ materials that are ‘‘used in a rule, EPA has determined that exclusion would apply in the same way, manner constituting disposal,’’ or intermediate facilities will be allowed regardless of how many reclamation ‘‘materials burned for energy recovery.’’ under the transfer-based exclusion. steps were involved with recycling of an The conditional exclusion also does not However, to limit the exclusion to those excluded material. For example, if the apply to materials that are currently intermediate facilities where discard excluded hazardous secondary material excluded from the definition of solid will not occur, if the hazardous was reclaimed by more than one facility waste according to other, existing secondary material will be passing or company, the generator of such provisions of 40 CFR part 261. For through an intermediate facility, the material would need to make reasonable example, the exclusion for broken hazardous secondary material generator efforts to examine each facility or cathode ray tubes requires them to be must make contractual arrangements company involved in the reclamation transported in closed containers per 40 with the intermediate facility to ensure process to ensure that the hazardous CFR 261.4(a)(22). Today’s exclusion that the hazardous secondary material is secondary materials would be properly does not supersede or otherwise affect sent on to the reclamation facility or and legitimately recycled. We believe these other exclusions, and such facilities identified by the generator and that this is a consistent application of hazardous secondary materials will must perform reasonable efforts on the the idea of requiring ‘‘reasonable need to be managed in accordance with intermediate facility, as well as on the efforts’’ as a condition of this exclusion. those existing exclusions. For a reclamation facility. Also, the Where recycling of a hazardous discussion of how this exclusion relates intermediate facility must send the secondary material involves more than to particular existing exclusions and hazardous secondary material to the one reclamation step at more than one additional details involving these reclaimer(s) designated by the generator. facility, generators should be well exclusions, see section XI of today’s In addition, the intermediate facility informed as to how the materials will be preamble. must meet the same conditions as the reclaimed, and by whom, throughout This exclusion is available to reclamation facility for the same reasons the recycling process. Additionally, hazardous secondary material the reclamation facility must meet them. each reclaimer (including ‘partial generators, transporters, intermediate Section VIII.C.4. below discusses reclaimers’) managing hazardous facilities, or reclaimers. In the March additional details as to why these secondary materials must meet all the 2007 supplemental proposal, EPA conditions need to apply to the reclaimer conditions listed under 40 proposed that the hazardous secondary reclamation facilities and this reasoning CFR 261.4(a)(24), as well as the material must be transferred directly applies equally to intermediate facilities recordkeeping requirements.

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C. Conditions and Requirements notifications may be sent to the state the requirement constitutes a violation Director. The notice must include: of RCRA, but does not affect the 1. Provisions Applicable to the • The name, address, and EPA ID excluded status of the hazardous Hazardous Secondary Materials number (if applicable) of the facility; secondary materials. Generator, the Reclamation Facility, and • The name and telephone number of This notification requirement is the Any Intermediate Facility a contact person; same as the notification requirement for Prohibition on speculative • The NAICS code of the facility; the generator-controlled exclusion. For • accumulation. As a condition of the The exclusion under which the further discussion on the notification, transfer-based exclusion, hazardous hazardous secondary materials will be including examples of when a facility secondary materials cannot be managed (e.g., whether the hazardous must re-notify that it has stopped speculatively accumulated (40 CFR secondary materials are managed under managing hazardous secondary 261.1(c)(8)) at the hazardous secondary the transfer-based exclusion in 40 CFR materials, see section VII.C. of today’s material generator, reclamation facility, 261.4(a)(24) and/or under the exclusion preamble. or intermediate facility. Restrictions on for hazardous secondary materials Hazardous secondary materials must speculative accumulation have been an exported for reclamation in 40 CFR be contained. Another condition of the 261.4(a)(25)); transfer-based exclusion applicable to important element of the RCRA • hazardous waste recycling regulations For reclaimers and intermediate hazardous secondary material since they were promulgated on January facilities managing hazardous secondary generators, reclamation facilities, and 4, 1985. According to this regulatory materials, whether the reclaimer or intermediate facilities is that the provision, hazardous secondary intermediate facility has financial hazardous secondary materials must be materials are accumulated speculatively assurance for the management of such contained in their management units. if the person accumulating them cannot hazardous secondary materials (not Hazardous secondary materials released show that the material is potentially applicable for hazardous secondary to the environment from any unit are material generators); discarded and would be subject to the recyclable; further, the person • accumulating the hazardous secondary When the facility expects to begin hazardous waste regulations, unless material must show that during a managing the hazardous secondary they are immediately cleaned up. calendar year (beginning January 1) the materials in accordance with the Hazardous secondary materials amount of such material that is recycled exclusion; remaining in a unit that experiences a • A list of hazardous secondary or transferred to a different site for release may also be considered materials that will be managed recycling is at least 75% by weight or discarded in certain cases. This is the according to the exclusion (reported as volume of the amount of the hazardous same as the restriction that is being the EPA hazardous waste numbers that promulgated for the generator- secondary material present at the would apply if the hazardous secondary controlled exclusions. For further beginning of the period. It is also the materials were managed as hazardous discussion on the containment same prohibition that is being waste); provisions, including examples of how promulgated today for the generator- • For each hazardous secondary they might be applied in case-specific controlled exclusions. material, whether the material, or any situations, see section VII.C. of today’s Legitimate recycling. Under the portion thereof, will be managed in a preamble. transfer-based exclusion, hazardous land-based unit; secondary materials must be • The quantity of each hazardous 2. Provisions Applicable to the legitimately reclaimed, as specified secondary material to be managed Hazardous Secondary Material under 40 CFR 260.43. Legitimate annually; and Generator recycling must involve a hazardous • The certification (included in EPA Reasonable efforts. Today’s final rule secondary material that provides a Form 8700–12) signed and dated by an requires generators to make reasonable useful contribution to the recycling authorized representative of the facility. efforts to ensure that their hazardous process or product and the recycling If a facility has submitted a secondary materials are properly and process must produce a valuable notification, but then subsequently legitimately recycled before shipping or product or intermediate. In addition, as stops managing hazardous secondary otherwise transferring them to a part of a legitimacy determination, materials in accordance with the reclamation facility or any intermediate persons must consider whether the exclusion, the facility must re-notify the facility. As discussed previously, this hazardous secondary material is Regional Administrator within 30 days condition effectively requires that managed as a valuable product and using the same EPA Form 8700–12. We generators perform a type of must consider the levels of toxics in the consider a facility to have ‘stopped’ environmental ‘‘due diligence’’ on a product of the recycling process as managing hazardous secondary reclaimer or any intermediate facility to compared to analogous products made materials when a facility no longer ensure that those facilities intend to from virgin materials. The details of the generates, manages and/or reclaims properly manage the hazardous legitimacy provision are discussed in hazardous secondary materials under secondary materials as commodities and section IX of this preamble. the exclusion and does not expect to legitimately recycle rather than discard Notification. Under today’s transfer- manage any amount of hazardous them. We believe that this condition based exclusion, hazardous secondary secondary material under the exclusion reflects the existing best practices of material generators, reclaimers, and for at least one year. Of course, a facility many responsible generators who audit intermediate facilities are required to could certainly choose to begin and assess recyclers to maintain their send a notification prior to operating managing hazardous secondary commitment to sound environmental under this exclusion and by March 1 of materials again and would simply have stewardship, minimize their potential each even numbered year thereafter to to submit a notification in compliance regulatory and liability exposures, and the EPA Regional Administrator using with 40 CFR 260.42. make decisions about with whom they EPA Form 8700–12. In states authorized The requirement to provide this should do business. by EPA to administer the RCRA Subtitle notification is not a condition of the Our successful recycling study quotes C hazardous waste program, exclusion. Thus, failure to comply with one large recycling and disposal vendor

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as stating that with respect to its new will be well managed. RCRA permitted parent companies, and trade customers, 60% of its large customers or interim status facilities where the associations already assemble the types and 30%–50% of its smaller customers permit or interim status standards of information based on credible now perform audits on them. Under extend to the management of the evidence that would be needed for a current practices, such audits can hazardous secondary materials being generator to satisfy the reasonable involve a site visit to the recycling reclaimed are already subject to efforts condition. EPA would encourage facility and an examination of the stringent design and operating this type of pooling of information to company’s finances, technical standards, must demonstrate financial reduce the burden on generators and to capability, environmental compliance assurance, and are subject to the take advantage of specialized technical record, and housekeeping practices. corrective action requirements in the expertise. (Note: Audits that are currently event of environmental problems. Not EPA is also finalizing in the conducted may or may not cover all of requiring reasonable efforts for regulatory text a series of questions, these areas.) Through the codification of generators that transfer hazardous which together represent a minimum this condition, we want to reinforce this secondary materials to these RCRA standard for reasonable efforts, to best practice among all generators who permitted or interim status recycling or provide generators and overseeing use the transfer-based exclusion to send intermediate facilities would likely be of agencies with regulatory certainty hazardous secondary materials to particular benefit to relatively smaller regarding fulfillment of the condition. reclamation and intermediate facilities. volume generators who may not have We believe that these questions are We believe that this condition is critical the resources required to satisfy this objective and must be answered for generators who currently may not condition. affirmatively. Hazardous secondary evaluate reclaimers and intermediate Of course, if a permitted facility later material generators wishing to take facilities because this condition modifies its permit terms in a way that advantage of the exclusion must be able provides these generators with a the permit no longer extends to the to answer all questions affirmatively to framework for making reasonable efforts management of the hazardous secondary determine that their hazardous to ensure their hazardous secondary materials, the generator would need to secondary materials are or will be materials are properly managed and perform reasonable efforts in accordance properly and legitimately recycled and reclaimed, and not discarded. with this exclusion. EPA recommends will not be discarded. The reasonable Currently, under 40 CFR part 262, a that any hazardous secondary material efforts questions are straight-forward by generator must make a hazardous waste generator transferring hazardous design and will allow generators to use determination and, thus, already has an secondary materials to a permitted a common sense approach in answering obligation to determine whether the facility request that it get placed on the the questions and satisfy the condition. waste is subject to regulation as a facility mailing list, so they can then These questions can be found at 40 CFR hazardous waste. EPA believes that to receive notice of changes to the permit 261.4(a)(24)(v)(B) and are discussed make a parallel determination under 40 status of the reclaimer or intermediate below. CFR 261.4(a)(24) that hazardous facility (see 40 CFR 270.42 and 40 CFR Of course, a generator could choose to secondary materials are not solid wastes 124.10). seek additional information or ask because they are destined for In contrast, if the permit or interim additional questions to determine that reclamation and are not discarded, the status standards do not extend to the its hazardous secondary materials will generator must meet the reasonable hazardous secondary materials being not be discarded due to concerns about efforts condition. A reasonable efforts reclaimed, the same level of assurance CERCLA liability. One example of inquiry by the hazardous secondary is not guaranteed. Therefore, if a additional information that many material generator ensures that the reclamation or intermediate facility only responsible generators currently seek reclaimer intends to recycle the has a RCRA permit or complies with the from recyclers, but that EPA is not hazardous secondary material interim status standards for another on- including in today’s final rule, is legitimately pursuant to 40 CFR 260.43 site operation unrelated to the information about a reclamation and not discard it, and that the hazardous secondary materials of facility’s financial health. Based on reclaimer or any intermediate facility interest to the generator, then the EPA’s successful recycling study and will manage the hazardous secondary hazardous secondary material generator comments on the proposed rule, we materials in compliance with 40 CFR is required to make a reasonable efforts know that responsible generators often 261.4(a)(24)(vi). inquiry of the facility as if it were a non- inquire about a reclamation facility’s The reasonable efforts condition for permitted facility. financial health. These inquiries can generators applies when hazardous EPA believes that a generator should include reviews of liability insurance secondary materials are transferred to be allowed to use any credible evidence coverage, company annual reports, intermediate facilities (as defined in 40 available in making reasonable efforts, bankruptcy filings, investments in CFR 260.10) and reclamation facilities including information gathered by the capital improvements, markets for operating without a RCRA Part B permit generator, provided by the reclaimer or recycled products, and business reports, or under the interim status standards intermediate facility, and/or provided such as Dun & Bradstreet reports. EPA that extend to management of the by a third party, in lieu of personally believes that evaluating the financial hazardous secondary materials in performing an assessment. For example, health of a company can benefit a question. If the permit or interim status the hazardous secondary material generator’s reasonable efforts inquiry of standards address the units being used generator might hire an independent a reclamation or intermediate facility to manage the hazardous secondary auditor to review the operations, and encourages generators to do so, materials, we do not require generators produce audit reports as a consortium of although we acknowledge that it is not to conduct reasonable efforts because generators, or rely on an assessment of an activity that lends itself to an we believe that a Part B permit or the a recycler or intermediate facility by a objective standard that would be interim status standards provide some parent corporation or trade association appropriate for regulation. Instead, EPA assurance to generators that the facility that is used by several generating is requiring that, under the transfer- has a measure of financial stability and facilities. In fact, EPA believes that based exclusion and reasonable efforts that the hazardous secondary materials many reputable third-party auditors, condition, reclamation and intermediate

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facilities have financial assurance and (3) Does publicly available state, or information provided by the generators affirm that facilities have information indicate that the facility itself. notified the appropriate authorities that reclamation facility or any intermediate Question (1) focuses on whether the the financial assurance condition is facility that is used by the hazardous reclamation facility receiving hazardous satisfied. secondary material generator has not secondary materials from a generator EPA intends that if a hazardous had any formal enforcement actions legitimately recycles such materials. secondary material generator has met taken against the facility in the previous EPA believes that any generator the reasonable efforts condition prior to three years for violations of the RCRA ‘‘regulated under § 260.34 or claiming to transferring hazardous secondary hazardous waste regulations and has not be excluded from the hazardous waste materials to the reclamation or been classified a significant regulations under § 261.2(a)(2)(ii), intermediate facility, then the reclaimer noncomplier with RCRA Subtitle C? In § 261.4(a)(23), (24), or (25) because they or intermediate facility, not the answering this question, the hazardous are engaged in recycling, must be able generator, would be liable under RCRA secondary material generator can rely on to demonstrate that the recycling is if the materials were discarded (i.e., not the publicly available information from legitimate’’ (40 CFR 260.43). properly and legitimately recycled). EPA or the state. If the reclamation Determining whether a recycling However, if the generator does not meet facility or any intermediate facility that operation is legitimate is a fundamental the reasonable efforts condition, then is used by the hazardous secondary basis for establishing that a generator’s the generator is ineligible for the material generator has had a formal hazardous secondary materials will not transfer-based exclusion and would be enforcement action taken against the be discarded after being transferred to a potentially liable in the event its facility in the previous three years for reclamation facility. hazardous secondary materials were violations of the RCRA hazardous waste Since reclaimers must also be able to discarded by a reclamation or regulations and has been classified as a demonstrate that the recycling is intermediate facility. (See section VIII.E. significant non-complier with RCRA legitimate under 40 CFR 260.43, EPA for more information.) EPA Subtitle C, does the hazardous believes that generators can work with acknowledges that meeting this secondary material generator have the owner or operator of the reclamation condition will not affect CERCLA credible evidence that the facilities will facility to verify that they have made a liability. (See section XIII for more manage the hazardous secondary determination that the recycling is information on CERCLA liability.) materials properly? In answering this legitimate, which would answer The following five questions represent question, the hazardous secondary question (1) for the purposes of a minimum standard for satisfying the material generator can obtain additional satisfying the condition. We would reasonable efforts condition: information from EPA, the state, or the expect that a reclaimer would be willing (1) Does the available information facility itself that the facility has and able to adequately explain to the indicate that the reclamation process is addressed the violations, taken remedial hazardous secondary material generator legitimate pursuant to § 260.43? In steps to address the violations and how the recycling activity satisfies the answering this question, the hazardous prevent future violations, or that the legitimacy requirements pursuant to 40 secondary material generator can rely on violations are not relevant to the proper CFR 260.43, such that we would not its existing knowledge of the physical management of the hazardous secondary expect that a generator would have to and chemical properties of the materials. examine in detail the legitimacy factors. hazardous secondary material, as well (4) Does the available information Of course, in order to answer question as information from other sources (e.g., indicate that the reclamation facility (1), a generator may also rely on its the reclamation facility, audit reports, and any intermediate facility that is existing knowledge of the physical and etc.) about the reclamation process. (By used by the hazardous secondary chemical properties of the hazardous responding to this question, the material generator have the equipment secondary material. Based on our hazardous secondary material generator and trained personnel to safely recycle discussions with the generating has also satisfied its requirement in the hazardous secondary material? In industry, we would expect that a § 260.43(a) to be able to demonstrate answering this question, the generator hazardous secondary material generator that the recycling is legitimate.) may rely on a description by the that produces and manages a material (2) Does the publicly available reclamation facility or by an that is more like an ingredient (i.e., a information indicate that the independent third party of the hazardous secondary material to be reclamation facility and any equipment and trained personnel to be recycled) than a waste to be discarded intermediate facility that is used by the used to recycle the generator’s would have a good understanding of the hazardous secondary material generator hazardous secondary material. material’s valuable components and have notified the appropriate authorities (5) If residuals are generated from the useful contribution to a process. Since of hazardous secondary materials reclamation of the excluded hazardous the generator manages the process that reclamation activities pursuant to 40 secondary materials, does the generates the hazardous secondary CFR 260.42 and have they notified the reclamation facility have the permits material, it would be knowledgeable appropriate authorities that the financial required (if any) to manage the about the makeup of the material and assurance condition is satisfied per 40 residuals? If not, does the reclamation the value and usefulness of its CFR 261.4(a)(24)(vi)(F)? In answering facility have a contract with an components. these questions, the hazardous appropriately permitted facility to However, if questions or concerns secondary material generator can rely on dispose of the residuals? If not, does the remain regarding the legitimacy of the the available information documenting hazardous secondary material generator recycling activity, a generator could the reclamation facility’s and any have credible evidence that the request additional information on how intermediate facility’s compliance with residuals will be managed in a manner the definition of legitimacy is met. (See the notification requirements per that is protective of human health and section IX of this rulemaking preamble § 260.42, including the requirement in the environment? In answering these for a discussion of determining § 260.42(a)(5) to notify EPA whether the questions, the hazardous secondary legitimacy.) reclaimer or intermediate facility has material generator can rely on publicly Question (2) concentrates on whether financial assurance. available information from EPA or the the recycler or intermediate facility (to

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the extent that the hazardous secondary sanction. For EPA, formal enforcement the previous three years for such non- material generator uses an intermediate action is a referral to the U.S. compliance and the facility was alleged facility) has met the following Department of Justice for the to be a significant non-complier, we obligations under the exclusion before commencement of a civil action in the would expect that the reclaimer would accepting hazardous secondary appropriate U.S. District Court, or the adequately explain to the hazardous materials: Notification of the filing of an administrative complaint, or secondary material generator how it has appropriate regulatory authorities that it the issuance of an order, requiring resolved any issues or how the plans to reclaim (or, in the case of the compliance and a sanction. For states, reclamation facility will properly intermediate facility, properly store the formal enforcement action is a referral manage the hazardous secondary hazardous secondary material) excluded to the state’s Attorney General for the materials to avoid future violations and/ hazardous secondary materials, and commencement of a civil or or enforcement actions. Additionally, if notification of the appropriate administrative action in the appropriate the generator obtains reasonable regulatory authorities that the facility forum, or the filing of an administrative information that the enforcement has the necessary financial assurance to complaint, or the issuance of an order, matters are unrelated to the facility’s cover the costs of managing any requiring compliance and a sanction. commitment to manage the hazardous hazardous secondary materials that ‘‘Significant non-complier’’ is a defined secondary materials properly or that the remain if the facility closes. If a facility term in EPA’s Hazardous Waste Civil violation has been corrected and the was found to have failed to meet the Enforcement Response Policy and facility is back in compliance, then that notification requirement and condition means the violators have caused actual would satisfy this aspect of the to have financial assurance, then it also exposure or a substantial likelihood of reasonable efforts determination. The would have failed to show a good faith exposure to hazardous waste or generator also may wish to make a effort towards demonstrating that it hazardous waste constituents; are similar investigation of facilities intends to recycle the hazardous chronic or recalcitrant violators; or designated as significant non-compliers secondary materials (or, in the case of deviate substantially from the terms of by EPA or a state even if no formal the intermediate facility, properly store a permit, order, agreement, or from the enforcement action has been taken. the hazardous secondary material) and RCRA statutory or regulatory Question (4) concentrates on the not discard them. requirements. In evaluating whether technical capability of the recycler or For the purposes of reasonable efforts, there has been actual or likely exposure intermediate facility, the most basic generators will be able to determine that to hazardous waste or hazardous waste requirement for ensuring proper and a facility has satisfied both the constituents, EPA and the states legitimate recycling of hazardous notification requirement and financial consider both the environmental and secondary materials. If a reclamation or assurance condition if the reclamation human health concerns, including the intermediate facility was found to have or intermediate facility has submitted a potential exposure of workers to no equipment or inadequate equipment notification. The notification form will hazardous waste or hazardous waste for storing the hazardous secondary include a section indicating the facility constituents. For both terms, see EPA’s material or was found to have personnel has satisfied the financial assurance Hazardous Waste Civil Enforcement who have not been trained for condition. Generators may access the Response Policy (Dec. 2003) at http:// reclaiming the hazardous secondary notification information, including the www.epa.gov/compliance/resources/ materials, it raises serious questions as facility’s notification that it has policies/civil/rcra/finalerp1203.pdf. to whether the facility would properly financial assurance, through EPA’s We do not believe that evaluating this manage such materials and avoid public Web site at http://www.epa.gov/ publicly available information, which a discarding them to the environment. enviro/html/rcris/ or other successor generator would likely already be In public comments on this question, Web sites. familiar with based on its own regulated which was included in the preamble to Question (3) focuses on the activities, is difficult for a generator, nor the proposed rule, commenters pointed compliance history of the recycler or the is interpreting the data and deriving out that a determination of what specific intermediate facility (to the extent that conclusions about facilities, since the equipment and training would be the hazardous secondary material database specifically notes whether a appropriate to safely recycle hazardous generator uses an intermediate facility). facility is alleged to be a ‘‘significant secondary materials may be beyond the Although consideration of compliance non-complier’’ (i.e., identified as a expertise of some generators. EPA agrees data is an imperfect tool for determining ‘‘SNC’’ or in ‘‘significant non- that, as drafted in the proposed rule, whether a recycler would properly compliance’’). We also note that since answering this question may require manage the hazardous secondary many states already provide compliance specialized knowledge and expertise. materials, we believe that publicly information to EPA and the public Accordingly, EPA is changing this available compliance data are a through the EPA Web site, we do not question to allow the generator to rely reasonable starting point for evaluating believe that requiring hazardous on the reclamation facility to explain a facility’s environmental performance. secondary material generators to review why its equipment and personnel are Facility-specific enforcement data on such information would pose a appropriate. Of course, the generator compliance status, ongoing enforcement significant new burden for state must have an objectively reasonable actions by both EPA and states, and agencies. belief based on this information that the specific case information for formal While a facility designated as a reclamation facility’s equipment and enforcement actions are readily significant non-complier and the subject trained personnel are adequate for safe available on EPA’s public Web site at of a formal enforcement action does not recycling. Accordingly, if the equipment http://www.epa.gov/echo. ‘‘Formal mean that the facility would not reclaim and personnel described by the enforcement’’ is a written document that the hazardous secondary materials reclamation facility would be, to an mandates compliance and/or initiates a properly, it does raise questions that we objective and reasonable person, clearly civil or administrative process, with or believe the hazardous secondary inadequate for safe recycling of the without appeal rights before a trier of material generator should investigate. generator’s hazardous secondary fact that results in an enforceable That is, if any formal enforcement material, then the generator would not agreement or order and an appropriate actions were taken against the facility in have met this condition. However, EPA

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does not require or expect the generator current hazardous secondary material three years at a minimum, EPA in no to have specialized knowledge or generators for determining applicable way intends to limit a generator to expertise of the recycling process. regulatory requirements. In addition, a conducting evaluations only every three Of course, generators of hazardous reclamation facility would likely assist years. In fact, EPA expects that any secondary materials also are already the generator in understanding any generator who has concerns about a familiar with equipment and personnel requirements applicable to residuals reclamation or intermediate facility, or needed to manage their hazardous management. For example, the who gains new knowledge of significant secondary materials properly at their reclamation facility could identify the changes or extraordinary situations at own site. Therefore, a generator may types of residuals generated by the such facilities, would conduct also choose to answer question (4) using recycling process and explain to the reasonable efforts regardless of the its existing knowledge of the physical generator how they are managed, required schedule. For example, if a and chemical properties of the whether any requirements apply, and hazardous secondary material generator hazardous secondary materials, how the requirements are met. conducted reasonable efforts in the first technologies involved with managing To answer question (5), a generator year it took advantage of the exclusion, and recycling such materials, and should determine that the reclamation prior to transferring materials to an applicable regulations or industry facility has practices in place to ensure intermediate facility, and then again standards based on the generator’s that residuals are managed in a manner conducted reasonable efforts in the experience producing and managing that is protective of human health and second year upon learning about a such materials. the environment and according to significant change at the intermediate Generators may also at their applicable federal or state standards. For facility (such as bankruptcy), the discretion use relevant third-party example, residuals may or may not be hazardous secondary material generator information sources to answer questions regulated hazardous wastes. If a residual would be required to update reasonable about a facility’s equipment and is a hazardous waste, generators could efforts three years later during the personnel, including audit reports; access information about a facility’s generator’s fifth year of taking advantage information provided by industry or permit for managing the material on of the exclusion. waste management associations related EPA’s public Web site at http:// EPA is requiring that generators to the reclamation or intermediate www.epa.gov/enviro/html/rcris (or maintain documentation showing that facility; documents provided by the successor Web sites) or through a state they satisfied the reasonable efforts reclaimer or intermediate facility; and as Web site if such information is made condition under 40 CFR noted in the successful recycling study, publicly available. If a residual is a non- 261.4(a)(24)(v)(B) prior to transferring an evaluation by a qualified engineer. hazardous waste, a generator could the hazardous secondary materials to Question (5) focuses on another major access permit information from state the intermediate facility or the cause of environmental problems from agencies or a state Web site if available. reclamation facility. Such records could recycling hazardous secondary A reclamation facility may also send its include copies of audit reports and/or materials: The management of residuals. residuals to a waste management other relevant information that was used This question relates to discard through facility, in which case, a generator could as the basis for affirmatively responding the concept that a generator or reclaimer ask about contracts with appropriately to inquiries about a reclamation or may actually be discarding hazardous permitted disposal facilities. If a intermediate facility. Specifying that secondary materials through the release reclamation facility does not have hazardous secondary material of residuals from the recycling process. permits for managing residuals or generators document these questions While the product made from recycling disposal contracts with permitted helps EPA and authorized states may be a legitimate product, the whole facilities, then the generator should determine whether the generator made recycling process could be considered a determine that a reclamation facility has reasonable efforts to ensure that the discard activity if hazardous a system in place for managing residuals hazardous secondary materials were not constituents from the recycled in a manner that is protective of human discarded. Documenting reasonable hazardous secondary materials are health and the environment. efforts is also beneficial for generators released to the environment. Roughly Any inquiry into a reclamation because EPA intends that if a generator one-third of the damage cases facility’s system for analyzing options has met the reasonable efforts condition documented in EPA’s environmental for residuals management should prior to transferring the hazardous problems study were caused by acknowledge that various options do secondary materials to the reclamation mismanagement of the residuals from exist and that price fluctuations may be or intermediate facility, then the recycling. Because the residuals from a determining factor for selecting an reclaimer or intermediate facility, not recycling can contain the hazardous option. the generator, would be liable under constituents that originated with the In today’s final rule, EPA is requiring RCRA if the materials were discarded hazardous secondary materials, it is that hazardous secondary material (see section VIII.E. for more important that the hazardous secondary generators make reasonable efforts every information). material generator understands how a three years, at a minimum, in order to Generators are also required to certify reclamation facility will manage any ensure that the generators adequately for each reclamation and intermediate residuals generated. manage their risk and are attune to facility that reasonable efforts were Many generators of hazardous waste changes at reclamation and intermediate made to ensure that hazardous already understand and comply with facilities with which they are partners. secondary materials will be properly the requirements for residuals We believe that this schedule reflects an and legitimately recycled, and not management. Therefore, they may rely average time frame for re-evaluating discarded. This certification should be on their existing knowledge to answer facilities, based on public comments, signed and dated by an authorized question (5) and we do not anticipate although we acknowledge that shorter representative of the generating that answering it will pose a significant time frames could be appropriate for company prior to transferring the challenge to them. We also anticipate certain industries, as suggested by some excluded hazardous secondary materials that new generators will use the same commenters. By specifying periodic to a reclamation or intermediate facility resources that are publicly available to updates for reasonable efforts every under 40 CFR 261.4(a)(24). The

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certification should also incorporate the specified by the regulatory authority. address of the reclaimer or intermediate certification language in 40 CFR Requiring documentation will help EPA facility, the type and quantity of 261.4(a)(24)(v)(C)(2). EPA believes that and authorized states to determine that hazardous secondary materials received, requiring a certification creates a hazardous secondary material and the date which the hazardous necessary level of oversight from an generators have made reasonable efforts secondary materials were received. The authorized representative, who can be to ensure that hazardous secondary Agency is not requiring a specific any appointed company representative, materials were reclaimed and not template or format for confirmations of and who must affirm that the condition discarded. We understand that many receipt and anticipates that routine is met and that hazardous secondary generators may maintain this kind of business records (e.g., financial records, materials will not be discarded. documentation and certification at their bills of lading, copies of Department of Documentation and certification are company headquarters or at another off- Transportation (DOT) shipping papers, both necessary requirements of the site facility; therefore, we are not electronic confirmations of receipt) reasonable efforts condition. requiring that they be maintained on- would contain the appropriate Documentation of questions (1)–(5) will site. However, we do believe that information sufficient for meeting this support a hazardous secondary material generators, having satisfied the requirement. generator’s assertion that it affirmatively reasonable efforts condition and We recognize that, in some cases, answered the questions and is in certified reasonable efforts prior to reclamation of a hazardous secondary compliance with the regulations. It will transferring the hazardous secondary material may involve more than one also facilitate any review by regulatory materials, should be able to produce the reclamation step. In these cases, the authorities investigating whether the documentation and certification readily. recordkeeping conditions for generators conditions of the transfer-based Moreover, we understand that since and reclaimers under the terms of the exclusion are satisfied and help generators today conduct business in an exclusion applies for each reclaimer and delineate liability under RCRA if the age of near-instantaneous intermediate facility, regardless of how materials were discarded. Having an communication, retrieving many reclamation steps were involved. authorized representative certify documentation from company For example, if a hazardous secondary reasonable efforts is critical for headquarters or another off-site facility material generator transferred hazardous guaranteeing accountability at the should be relatively easy. EPA also secondary materials to one reclaimer for generator facility for meeting the notes that time frames for producing partial reclamation and then arranged condition and for ensuring that the act documentation are generally determined for the partially-reclaimed material to be of making reasonable efforts is in fact by regulatory authorities on a case-by- subsequently transferred to another genuine. The certification is also case basis and time frames are clearly reclaimer for ‘final’ reclamation, the necessary in order to allow for the outlined by authorities within RCRA generator must maintain confirmations ‘‘flexible’’ documentation requirement section 3007 information request letters. of receipt from each reclaimer involved that does not specify a particular format. Recordkeeping. In addition to in the reclamation process. Since individual generators may use any documentation and certification of form of documentation, we believe it is reasonable efforts (discussed above in The Agency believes that the critical for all generators to uniformly section VIII.C.2.), EPA is requiring recordkeeping requirements in today’s certify that the condition is satisfied. hazardous secondary material rule comprise the minimum information Furthermore, we find both reasonable generators to maintain at the generating needed to enable effective oversight to efforts requirements (documentation facility certain records that document ensure the hazardous secondary and certification) to be appropriate off-site shipments (i.e., transfers) of materials were transferred for based on our understanding that third- hazardous secondary materials for a reclamation and were not discarded. party auditors do not generally draw period of three years. Specifically, for 3. Provisions Applicable to the any conclusions based on their audits, each shipment of hazardous secondary Transportation of Hazardous Secondary but simply report the results to material, the generator must maintain Materials generators. While a generator may use documentation of when the shipment any information for making reasonable occurred, who the transporter was, the Hazardous secondary materials may efforts, the certification statement would name and address of the reclaimer(s) be stored for up to 10 days at a transfer affirm that a generator used information and, if applicable, each intermediate facility and still be considered in transit. that is gathered and documented during facility, and the type and quantity of the The 10-day storage standard for defining the reasonable efforts inquiry, similar to hazardous secondary materials in the transfer facilities is the same as that how generators currently draw shipment. This recordkeeping used for hazardous waste transportation, conclusions based on third-party audit requirement may be fulfilled by and EPA has revised the definition of documents. ordinary business records, such as bills ‘‘transfer facility’’ at 40 CFR 260.10 to The requirement for documentation of lading. clarify that such facilities may store and certification of reasonable efforts is In addition, hazardous secondary hazardous secondary materials, as well not unlike existing forms of RCRA material generators are required to as hazardous waste. However, if the documentation that incorporate maintain confirmations of receipt from facility stores the hazardous secondary certifications, such as the RCRA Site ID each reclaimer and intermediate facility materials for more than 10 days, then it Form, RCRA financial assurance for all off-site shipments of hazardous would be considered an intermediate requirements, and the Uniform secondary materials in order to verify facility and subject to the conditions in Hazardous Waste Manifest. that the hazardous secondary materials 40 CFR 261.4(a)(24)(vi). While at the Documentation of reasonable efforts reached their intended destination and transfer facility, the hazardous and the certification statement must be were not discarded. These receipts must secondary materials must continue to maintained by the generator for a be maintained at the generating facility meet all applicable DOT standards. minimum of three years and it must be for a period of three years. Specifically, Hazardous secondary materials may be made available upon request by a the hazardous secondary material consolidated for shipping, but cannot be regulatory authority within 72 hours, or generator must maintain documentation intermingled in a way that would within a longer period of time as of receipt that includes the name and constitute waste management.

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4. Provisions Applicable to the and the date which the hazardous and intermediate facilities that take Reclamation Facility and Any secondary materials were received. The advantage of this exclusion to show that Intermediate Facilities Agency is not requiring a specific storage of these materials is not just Recordkeeping. Reclaimers and template or format for confirmations of another way of disposing of them. In intermediate facilities who operate receipt and anticipates that routine addition, it will establish an expectation under the transfer-based exclusion must business records (e.g., financial records, for the owner/operators of such facilities maintain certain records, similar to the bills of lading, copies of DOT shipping that they must manage hazardous records we are requiring for hazardous papers, electronic confirmations of secondary materials in at least as secondary material generators. receipt) would contain the appropriate protective a manner as they would an Specifically, reclaimers and information sufficient for meeting this analogous raw material, and in such a intermediate facilities must maintain at requirement. way that materials would not be In addition, reclaimers and their facilities for a period of three years released into the environment. intermediate facilities must also meet records of all shipments of hazardous Management of recycling residuals. the recordkeeping requirements under secondary materials that were received Another condition of the transfer-based financial assurance discussed below in at the facility and, if applicable, of all exclusion is that any residuals that are this section. generated from the reclamation shipments of hazardous secondary Storage of Recyclable Hazardous materials sent off-site from the facility. processes must be managed in a manner Secondary Materials. In addition to the that is protective of human health and For hazardous secondary materials condition that the hazardous secondary received at the reclamation and the environment. If any residuals materials must be contained (40 CFR exhibit a hazardous characteristic intermediate facility, such records must 261.4(a)(24)(v)(A)), reclamation facilities document the name and address of the according to subpart C of 40 CFR part and intermediate facilities must also 261, or themselves are listed hazardous hazardous secondary material generator, manage the hazardous secondary wastes, they are hazardous wastes (if the type and quantity of hazardous materials in a manner that is at least as discarded) and must be managed secondary materials received at the protective as that employed for the according to the applicable facility, any intermediate facilities that analogous raw material, where there is requirements of 40 CFR parts 260 managed the hazardous secondary an analogous raw material. An through 273. materials, the name of the transporter ‘‘analogous raw material’’ is a material that brought the hazardous secondary for which a hazardous secondary The purpose of this condition is to materials to the facility, and the date material substitutes and which serves clarify the regulatory status of these such materials were received at the the same function and has similar waste materials and to emphasize in facility. physical and chemical properties as the explicit terms that residuals that are For hazardous secondary materials hazardous secondary material. A raw generated from the reclamation of that, after being received by the material that has significantly different hazardous secondary materials must be reclaimer or intermediate facility, are physical or chemical properties would managed properly so that the subsequently transferred off-site for not be considered analogous even if it reclamation operation does not become further reclamation, reclaimers and serves the same function. For example, another way of avoiding waste intermediate facilities must document a metal-bearing ore might serve the management and simply becomes the name and address of the hazardous same function as a metal-bearing air another way of discarding unwanted secondary material generator, when the pollution control dust, but because the material. The study of recent (i.e., post- shipment occurred, who the transporter physical properties of the dust would CERCLA and post-RCRA) recycling- was, the name and address of the make it more susceptible to wind related environmental problems (subsequent) reclaimer and, if dispersal, the two would not be revealed that mismanagement of applicable, each (subsequent) considered analogous. Similarly, residuals was the cause of such intermediate facility, and the type and hazardous secondary materials with problems in one-third of the incidents quantity of hazardous secondary high levels of toxic volatile chemicals that were documented. Some common materials in the shipment. This would not be considered analogous to a examples of these mismanaged residuals recordkeeping requirement may be raw material that does not have these were acids and casings from the fulfilled by ordinary business records, volatile chemicals or that has only processing of lead-acid batteries, such as bills of lading. minimal levels of volatile chemicals. solvents and other liquids generated Reclaimers and intermediate facilities Storage conditions for reclamation from cleaning drums at drum must also send confirmations of receipt facilities and intermediate facilities that reconditioning facilities, and PCBs and to the hazardous secondary material operate under today’s exclusion will other oils generated from disassembled generator for all off-site shipments of show that the materials are not transformers. In many of these damage hazardous secondary materials received discarded, but instead are treated as incidents, the residuals were simply at the facility in order to verify for the commodities which the handler disposed of on-site with little regard for hazardous secondary material generator considers valuable and would be used the environmental consequences of such that their materials reached the and not be lost to the environment. The mismanagement or possible CERCLA intended destination and were not great majority of damage cases liabilities associated with cleanup of discarded. Specifically, the reclaimer (or documented in the environmental these releases. By making proper each reclaimer, when more than one problems study occurred at commercial management of the recycling residuals a reclamation step is required) and, if reclamation and intermediate storage condition of the exclusion, EPA ensures applicable, each intermediate facility, facilities, and mismanagement of that the reclamation operation is not just must send documentation of receipt to hazardous secondary materials was another way of discarding hazardous the hazardous secondary material found to be a cause of environmental constituents. This has the added benefit generator that includes the name and problems in 40% of the incidents. of ensuring that the reclamation address of the reclaimer or intermediate Accordingly, EPA believes that this operation does not pose a significant facility, the type and quantity of the condition for storage is necessary and risk to human health and the hazardous secondary materials received appropriate for reclamation facilities environment.

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EPA notes that the ‘‘derived from’’ assurance instruments. Commenters managed with the intent of leaving these rule articulated in 40 CFR 261.3(c)(2) expressed some confusion on this issue hazardous secondary materials in place. does not apply to residuals from the and requested that EPA clarify that the Unlike the need for closure, which reclamation of hazardous secondary provisions of subpart G which are could occur at a reclamation or materials excluded under today’s rule. required to implement financial intermediate facility which meets all the These residuals are a new point of assurance be made explicit. conditions of the exclusion, but then generation for the purposes of applying Thus, in today’s final rule, for the becomes subject to forces beyond its the hazardous waste determination convenience of the regulated control (such as a sudden downturn in requirements of 40 CFR 262.11. If the community, EPA has detailed the the market for its recycled product), the residuals exhibit a hazardous applicable requirements in a separate need for post-closure care would only characteristic, or they themselves are a regulation, subpart H of 40 CFR part apply to a facility that does not meet the listed hazardous waste, they would be 261, using terminology appropriate for condition that the hazardous secondary considered hazardous wastes (unless excluded facilities, that specifically materials are contained in the unit. otherwise exempted) and would have to identifies the processes by which a Thus, the Agency has determined that be managed accordingly. If they did not facility determines the amount of the issue of post-closure care is most exhibit a hazardous characteristic, or financial assurance required and by appropriately dealt with by enforcement were not themselves a listed hazardous which it secures release of financial of the condition that the hazardous waste, they would need to be managed assurance when it no longer wishes to secondary materials must be contained. in accordance with applicable state or operate under the transfer-based If, during the life of the unit, there is a federal requirements for non-hazardous exclusion. The financial assurance significant release that indicates that the wastes. requirements detailed in 40 CFR part hazardous secondary materials are 261 subpart H incorporate those aspects discarded, and thus are wastes, then Financial Assurance of the hazardous waste closure and such waste is subject to the RCRA For the transfer-based exclusion, EPA financial assurance regulations as they Subtitle C requirements, including the proposed in its March 2007 apply to the financial assurance post-closure care requirements. See supplemental proposal that reclamation condition for excluded hazardous discussion of the condition that the facilities comply with the 40 CFR part secondary material reclamation and hazardous secondary materials must be 265 subpart H financial assurance intermediate facilities. However, since ‘‘contained’’ found in section VII.C. requirements as a condition of the these facilities are not regulated exclusion. As discussed in section V.B hazardous waste facilities, new subpart Cost Estimate of this preamble, by obtaining financial H does not include a stand-alone Under subpart H of 40 CFR part 261, assurance, the reclamation or closure requirement, although some as it is under subpart H of 40 CFR part intermediate facility is making a direct aspects of the closure process (described 265 for hazardous waste treatment demonstration that it will not abandon below) are included as being necessary storage and disposal facilities, the first the hazardous secondary materials, it for the implementation of the financial step in obtaining financial assurance is will properly decontaminate equipment, assurance condition. to develop a detailed written estimate and it will clean up any unacceptable Substantively, these requirements on the amount of financial assurance releases, even if events beyond its generally mirror the interim status required. The cost estimate determines control make its operations standards in 40 CFR part 265 for the amount of financial assurance that uneconomical. Moreover, financial hazardous waste treatment, storage and will be available to the state or EPA for assurance also addresses the issue of the disposal facilities (TSDFs), but have a third party to close a facility if the correlation of the financial health of a been tailored for hazardous secondary owner or operator fails to do so. The reclamation or intermediate facility with material reclamation and intermediate requirements for a cost estimate in 40 the absence of discard. In essence, facilities. The provision in the new CFR 261.142 generally tracks the financial assurance will help subpart H in 40 CFR part 261 are linked procedures in 265.142 with changes to demonstrate that the reclamation or to equivalent provisions under 40 CFR accommodate the absence of a closure intermediate facility owner/operators part 265, which, as we noted in the plan. Because hazardous secondary who would operate under the terms of March 2007 supplemental proposal, materials that lose the exclusion may this exclusion are financially sound and ‘‘outline how owners and operators have to be disposed of as a hazardous will not discard the hazardous should determine cost estimates, waste and the facility may have to be secondary materials. explain the acceptable mechanisms for closed as a hazardous waste facility in An implementation issue for the providing financial assurance, and set accordance with the requirements of 40 financial assurance condition stems the minimum amounts of liability CFR part 265, the owner or operator from the fact that the 40 CFR part 265 coverage required’’ (see 72 FR 14196). must have a detailed written estimate in subpart H financial assurance In addition to the closure current dollars of performing this work. requirements directly reference and rely requirements, 40 CFR part 265 subpart The detailed cost estimate should on the provisions of the 40 CFR part 265 H includes requirements for post- include all necessary information which subpart G closure requirements. For closure care. Post-closure care (e.g., will allow the state or EPA to assess example, in 40 CFR part 265 subpart H, groundwater monitoring, maintenance whether the assumptions underlying the a facility owner uses the ‘‘closure plan’’ of waste containment systems) only estimate are consistent with what could in 40 CFR part 265 subpart G to applies to land disposal units, where be required to close the facility. For calculate closure cost estimates, which hazardous waste remains in the unit or example, do the estimates for disposal, then set the amount of financial other contamination is present after including transportation charges, reflect assurance required under subpart H. Subtitle C closure. However, the the distance to available disposal Similarly, the financial assurance conditional exclusion being facilities? What level of personal requirements remain in place until EPA promulgated today only applies to protective equipment is needed to has reviewed the closure plan, and the hazardous secondary materials intended protect workers? Is there sufficient facility has closed according to the plan. for reclamation. In no cases should the sampling of equipment to determine At that point, EPA releases the financial storage of these materials be designed or that it has been decontaminated? Where

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there is uncertainty about the scope of removing or decontaminating all Establishment of the Instrument, Plan the work, is there a reasonable hazardous residues. These cost estimate for Removal of All Hazardous contingency factor included? While not provisions, found in 40 CFR 261.142(b) Secondary Material Residues, and required by this rule for developing a and 40 CFR 261.142(c) are equivalent to Release From Financial Assurance cost estimate, some owners or operators those required under 40 CFR 265.142(b) Under 40 CFR 261.4(a)(24)(vi)(F), an may find that developing a plan similar and 40 CFR 265.142(c), and incorporates owner or operator of a reclamation or to the requirements in 40 CFR 265.112 language from 40 CFR 265.112(c)(2) intermediate facility must establish would be beneficial for assessing the requiring the owner or operator to financial assurance as a condition of the potential costs of closing the facility. amend the estimates at least 60 days exclusions under 40 CFR 261.4(a)(24) (Note, however, that the cost estimate prior to a planned change in facility and 261.4(a)(25). The same general must reflect the costs of closure under design or operation or no later than 60 types of instruments that are available the Subtitle C hazardous waste days after an unexpected event has for interim status facilities under 40 requirements, and any remaining occurred that affects cost estimates. The CFR part 265 subpart H are also hazardous secondary material must be financial assurance cost estimate must available to owners or operators of managed as a hazardous waste, and be documented and this documentation reclamation or intermediate facilities. therefore the procedures used as the maintained at the facility. This Owners or operators may use trust basis of the cost estimate may differ information must be furnished upon funds, payment surety bonds, letters of from the actual procedures a compliant request, and made available at all credit, insurance, or a financial test and facility will carry out when it completes reasonable times for inspection. The corporate guarantee to demonstrate operations and exits from the requirement in 40 CFR 261.142(d) to financial assurance. exclusion.) The owner or operator can maintain documentation at the facility The regulations governing the be required to provide the is from the requirement in 40 CFR financial assurance instruments that an documentation of the cost estimate 265.142(d) and 40 CFR 265.73(b)(7), and owner or operator must provide to upon request. the responsibility to make it available qualify for the exclusions have been The cost estimating requirements in upon request, which will allow Agency modified to reflect that they apply to 40 CFR 265.142 and 40 CFR 261.142 are representatives to review the cost designed so that if a state or EPA must estimate, is from 40 CFR 265.74(a) hazardous secondary materials and not close a facility because of an owner or which covers information required in 40 hazardous wastes. The financial operator’s failure, there will be adequate CFR 265.73. assurance instruments for the trust fund, funds to do so. The requirements for the surety bond, letter of credit, and cost estimate are therefore based upon Interaction of the Cost Estimate and the corporate guarantee have been revised the point when the extent and manner Financial Assurance Instruments so that EPA can direct the financial of the facility’s operation would make As with the interim status regulations assurance funds at the point the these activities the most expensive. in 40 CFR part 265 subpart H, the hazardous secondary material The cost estimate must, at minimum, interaction of the cost estimating reclamation or intermediate facility no be based on the costs of hiring a third requirements in 40 CFR 261.142 and the longer meets the exclusion and, party or parties to conduct these instrument requirements in 40 CFR therefore, is managing a hazardous activities. The cost estimate may not 261.143 result in adjustments in the waste. As long as a facility is operating include any salvage value for the amount of financial assurance as facility under the transfer-based exclusion so hazardous secondary materials as operations change. If changes in the that the hazardous secondary material is hazardous waste or non-hazardous reclaimer’s or intermediate facility’s not being discarded, there would be no waste and the owner or operator may operations result in a reduction in the need to invoke the financial assurance not incorporate a zero cost for such cost estimate, the owner or operator may instruments. materials that might have economic submit a new cost estimate. If the new The regulations allow the same value. cost estimate is less than the amount of flexibility as in 40 CFR part 265 subpart The financial assurance provisions are financial assurance provided, the H for using a combination of trust funds, intended, in part, to demonstrate that amount of the financial assurance surety bonds, letters of credit and the owner and operator is not discarding instrument may be reduced to the insurance at a single facility (see 40 CFR the hazardous secondary materials. As amount of the new cost estimate 261.143(f)), and allow the use of a single noted earlier, 69 of the 208 incidents of following written approval by the mechanism for multiple facilities (see environmental damage identified in Regional Administrator (see, for 40 CFR 261.143(g)). EPA’s environmental problems study example, 40 CFR 261.143(b)(7)). For The provisions for releasing the involve abandonment of the hazardous example, a facility with three units reclamation or intermediate facility secondary materials as the primary managing hazardous secondary from the financial assurance cause of damage. These cost estimate materials that use a single surety bond requirements, found in 40 CFR provisions, found in 40 CFR 261.142(a) could close one unit according to the 261.143(h), are functionally equivalent are equivalent to those required to plan in 40 CFR 261.143(h). With a new to those under 40 CFR 265.143(h). estimate financial assurance under 40 cost estimate submitted by the facility ‘‘Within 60 days after receiving CFR 265.142(a). that reflects the lower costs for the two certifications from the owner or operator In addition, the financial assurance remaining units, the Regional and a qualified Professional Engineer cost estimate must be revised and Administrator can approve a reduction that all hazardous secondary materials additional financial assurance must be in the value of the surety bond. On the have been removed from the unit and obtained to adjust annually for inflation other hand, a change in the facility’s the unit has been decontaminated in or in the event that changes in the operating plan or design that increases accordance with the approved plan per reclaimer’s or intermediate facility’s the cost of closing necessitates a new paragraph (i), the Regional operations or unexpected events result cost estimate (40 CFR 261.142(c)) and an Administrator will notify the owner or in an increase in the cost of managing increase in the amount of financial operator in writing that he is no longer any hazardous secondary materials that assurance (see, for example, 40 CFR required under § 261.4(a)(24)(vi)(F) to are not reclaimed and the cost of 261.143(b)(7)). maintain financial assurance for that

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unit, unless the Regional Administrator extent of decontamination necessary to Similarly, as in 40 CFR part 265, if an has reason to believe that that all protect human health and the owner or operator fails to obtain an hazardous secondary materials have not environment; (c) a description of any approved replacement instrument been removed from the unit or that the other activities necessary to protect within 90 days after a notice of unit has not been decontaminated in human health and the environment cancellation from a surety, issuer of a accordance with the approved plan.’’ during this time frame, including, but letter of credit, insurer, or guarantor, the Under 40 CFR part 265 subpart H, the not limited to, leachate collection, run- Regional Administrator can invoke the provisions for releasing financial on and run-off control, etc.; and (d) a instrument. The following descriptions assurance rely on receiving a schedule for conducting the activities. of the instruments contain additional certification that the unit was closed per This plan, which is essentially the information on how the instruments the approved closure plan in 40 CFR subset of information required in a 40 operate under this rule. CFR part 265 closure plan that would 265.112. However, as noted earlier, Trust Funds under today’s exclusion, units managing apply to excluded hazardous secondary hazardous secondary materials are not material units, would still need to be If facilities choose to use a trust fund, subject to closure. Thus, the provision reviewed by the Regional Administrator they must fully fund the trust before for releasing financial assurance for (or State Director, in authorized states) they can rely on it for financial these units adapts language from the because that would ensure that EPA assurance. This is consistent with the closure plan requirement found in 40 would agree that the hazardous proposal, which was based on the pay- secondary materials, or equipment CFR 265.112 and from the certification in provisions under 40 CFR part 265. In contaminated with hazardous secondary requirement found in 40 CFR 265.115. part 265, the pay-in period for trust materials, will not remain unregulated Instead of a hazardous waste ‘‘closure funds is limited to the remaining at the facility after it is no longer plan,’’ the 40 CFR 261.143(i) provisions operating life of a facility or 20 years operating under an exclusion and no for releasing financial assurance require from the effective date of the 40 CFR longer maintains financial assurance. As submission of a plan for removing part 265 regulations, which became with the financial assurance release hazardous secondary materials and effective in 1982. Thus, under the provision of 40 CFR part 264, the decontaminating the unit at least 180 exclusion, the pay-in period, which Regional Administrator will provide days prior to the date that owner or would allow a trust to build over time, notice to the owner or operator and the is not available. This means that operator expects to cease operating public and an opportunity to submit under the exclusion. The contents of the facilities that are not financially strong written comments on the plan and enough to qualify for the financial test plan are detailed in 40 CFR 261.153(i)(2) request modifications to the plan. The and have been tailored to reflect the fact and that cannot obtain a guarantee, such Regional Administrator will approve, as a surety bond or a letter of credit from that, although the hazardous secondary modify, or disapprove the plan within material management units are not a third party (potentially because the 90 days of its receipt. surety or bank is not confident that it subject to closure, when reclamation Once residuals (and any hazardous will be repaid if the instrument is called operations or storage operations (in the secondary materials) have been removed upon) will need to fully fund the trust case of an intermediate facility) ceases, and the unit has been decontaminated before qualifying for the exclusion. the hazardous secondary materials must according to the plan, the facility would be removed or the unit would become send a certification to that effect from While the hazardous secondary subject to the Subtitle C hazardous the owner or operator and a qualified materials retain the exclusion, EPA has waste requirements (see section VIII.D). Professional Engineer to the regulatory no access to these funds. The trustee Briefly, the plan must include, at least, agency, and that agency would then must meet the qualifications in 40 CFR (a) a description of how all excluded authorize the release of the financial 261.143(a)(1) and the wording of the hazardous secondary materials will be assurance for those specific units, trust agreement must be identical to the reclaimed or sent for reclamation and unless there is reason to believe that the wording specified in § 261.151(a)(1). how all residues, contaminated hazardous secondary materials and The trust agreement must include a containment systems (liners, etc), residues were not removed (in which Schedule A that lists each facility, contaminated soils, subsoils, structures, case the regulatory authority would including the units with hazardous and equipment will be removed or send a written explanation of this fact). secondary materials, and the amounts of decontaminated as necessary to protect Again, this process is similar to that the current cost estimates, or portions human health and the environment (for required under 40 CFR 265.115, as thereof, for which financial assurance is guidance, see the March 16, 1998, referenced in 40 CFR part 265 subpart demonstrated by the trust. Schedule A memorandum entitled ‘‘Risk-Based H. of the trust agreement must be updated Clean Closure,’’ from Elizabeth within 60 days after a change in the Cotsworth, Acting Director, Office of Operation of the Instruments if the amount of the current cost estimate Solid Waste, to RCRA Senior Policy Exclusion Is No Longer Applicable covered by the agreement. Advisors. Available at http:// As noted above, as long as a facility Whenever the current cost estimate www.epa.gov/correctiveaction/resource/ is operating under the transfer-based changes, the owner or operator must guidance/risk/cclosfnl.pdf; (b) a exclusion and the hazardous secondary compare the new estimate with the description of the steps necessary to material is not being discarded, there trustee’s most recent annual valuation of remove or decontaminate all hazardous would be no need to invoke the the trust fund. If the value of the fund secondary material residues and financial assurance instruments. is less than the amount of the new cost contaminated containment system However, if the exclusion is no longer estimate, the owner or operator, within components, equipment, structures, and applicable, then the hazardous 60 days after the change in the cost soils including, but not limited to, secondary material is a hazardous waste estimate, must either (1) deposit an procedures for cleaning equipment and subject to the Subtitle C requirements amount into the trust fund so that its removing contaminated soils, methods and the Regional Administrator can value after this deposit at least equals for sampling and testing surrounding invoke the instruments consistent with the amount of the current cost estimate, soils, and criteria for determining the RCRA 3004(t) and related laws. or (2) obtain other financial assurance,

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such as a letter of credit, to cover the surety bond or letter of credit if the except that until the standby trust fund difference. hazardous secondary materials lose the is funded pursuant to the requirements There are also circumstances when exclusion. The trustee shall make of this section, the following are not the owner or operator may request a payments from the Fund as the EPA required by these regulations: release of funds from the trust fund. If shall order or direct, in writing, to (A) Payments into the trust fund as the value of the trust fund is greater provide for the payment of the costs of specified in § 261.143(a); than the total amount of the current cost the performance of closure activities (B) Updating of Schedule A of the estimate, the owner or operator may required under subpart G of 40 CFR trust agreement (see § 261.151(a)) to submit a written request to the Regional parts 264 or 265 for the facilities show current cost estimates; Administrator for release of the amount covered by the trust agreement. This (C) Annual valuations as required by in excess of the current cost estimate. provision allows funds from the trust to the trust agreement; and This could occur as a result of the be used to close facilities as hazardous (D) Notices of nonpayment as closing of a unit at the facility and the waste facilities. required by the trust agreement. submission of a revised cost estimate. An owner or operator whose The penal sum of the bond must be Alternatively, the earning of the trust hazardous secondary materials have lost in an amount at least equal to the fund could exceed the increase in the their exclusion, but subsequently meets current cost estimate, except as cost estimate due to inflation. Further, the requirements for the exclusion, provided in 40 CFR 261.143(f). The if an owner or operator substitutes other including establishing financial regulations at 40 CFR 261.143(f) allow financial assurance as specified in the assurance in accordance with the the use of certain combinations of regulations for all or part of the trust provisions of 40 CFR 261.143, may instruments so long as their sum is at fund, he may submit a written request request a reduction in the amount of the least equal to the total cost estimates. to the Regional Administrator for release trust fund and the Regional Whenever the current cost estimate of the amount in excess of the current Administrator may instruct the trustee increases to an amount greater than the cost estimate covered by the trust fund. to return funds to the owner or operator penal sum, the owner or operator, Within 60 days after receiving a under Section 4 of the trust agreement within 60 days after the increase, must request from the owner or operator for in 40 CFR 261.151(a). For example, either cause the penal sum to be release of funds, the Regional hazardous secondary materials could increased to an amount at least equal to Administrator will instruct the trustee lose their exclusion and the Regional the current cost estimate and submit to release to the owner or operator such Administrator could draw upon a letter evidence of such increase to the funds that exceed the amount of the of credit being used to establish Regional Administrator or obtain other current cost estimate, as the Regional financial assurance and have it financial assurance as specified in the Administrator deems appropriate and deposited into the trust fund. If the regulations in 40 CFR 261.143 to cover specifies in writing. Alternatively, in the hazardous secondary materials regained the increase. Whenever the current cost event that the owner or operator begins their exclusion and the owner or estimate decreases, the penal sum may final closure of the unit under subpart operator substituted a new approved be reduced to the amount of the current G of 40 CFR part 264 or 265, an owner letter of credit, the Regional cost estimate following written approval or operator may request reimbursements Administrator may direct the trustee to by the Regional Administrator. So long for partial or final closure expenditures refund funds to the owner or operator. as the owner or operator meets the by submitting itemized bills to the exclusion, the Regional Administrator Regional Administrator. Surety Bonds will not access the bond. The Regional Administrator will agree The surety bond operates similarly to The Regional Administrator will agree to termination of the trust fund when the payment surety bond in 40 CFR part to termination of the surety bond when the owner or operator substitutes 265, with some modifications to reflect the owner or operator substitutes alternate financial assurance, such as the differences between a conditionally alternate financial assurance, such as an receiving approval for an insurance exempt hazardous secondary material approved insurance policy to replace policy to replace the trust, or if the and a hazardous waste. The surety bond the surety bond, or if the owner or owner or operator demonstrates that he must conform to the requirements of 40 operator demonstrates that he meets the meets the requirements of the financial CFR 261.143(b) and the owner or requirements of the financial test. The test. It should be noted that both surety operator must submit the bond to the Regional Administrator will also agree bonds and letters of credit require a Regional Administrator. The surety to the termination of the surety bond standby trust, as discussed below. The company issuing the bond must, at a when he releases the owner or operator Regional Administrator will also agree minimum, be among those listed as from the requirements of this section in to the termination of the trust fund acceptable sureties on federal bonds in accordance with 40 CFR 261.143(i). when he releases the owner or operator Circular 570 of the U.S. Department of Under 40 CFR 261.151(b), the Principal from the requirements of this section in the Treasury. The wording of the surety may terminate this bond by sending accordance with 40 CFR 261.143(i). bond must be identical to the wording written notice to the Surety(ies), The preceding discussion explained specified in 40 CFR 261.151(b). provided, however, that no such notice the operation of the regulations during The owner or operator who uses a shall become effective until the the exclusion. The regulations also surety bond must also establish a Surety(ies) receive(s) written address the situation where the standby trust fund and submit an authorization for termination of the hazardous secondary materials lose originally signed duplicate of the trust bond by the EPA Regional their exclusion. The requirements in 40 agreement with the surety bond. Under Administrator(s) of the EPA Region(s) in CFR 261.151(a) for the trust fund the terms of the bond, all payments which the bonded facility(ies) is (are) provide that if the hazardous secondary made thereunder will be deposited by located. materials lose their exclusion, EPA the surety directly into the standby trust Under 40 CFR part 261, the surety becomes the beneficiary of the trust, fund in accordance with instructions becomes liable for funding the trust if consistent with RCRA section 3004(t) from the Regional Administrator. This the owner or operator has failed to fund and federal law. The trust fund also standby trust fund must meet the the trust before the loss of the exclusion. receives the proceeds of a payment requirements specified in § 261.143(a), The cancellation provisions for the

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surety bond in 40 CFR part 261 operate of credit and whose letter-of-credit intermediate facilities no longer meet similarly to the provisions in 40 CFR operations are regulated and examined the conditions of the exclusion, EPA part 265. If the surety has issued a by a federal or state agency. may draw upon the letter of credit. If the notice of cancellation, and the owner or The wording of the letter of credit owner or operator does not establish operator has not funded the trust or must be identical to the wording alternate financial assurance and obtain obtained approval by the Regional specified in § 261.151(c). As with the written approval of such alternate Administrator of a replacement surety bond, an owner or operator who assurance from the Regional instrument within 90 days, the surety uses a letter of credit must also establish Administrator within 90 days after a becomes liable for payment into the a standby trust fund and submit to the notice from the issuing institution that trust fund. Under the hazardous waste Regional Administrator an originally it has decided not to extend the letter of rules, if the surety issues a notice of signed duplicate of the trust agreement credit beyond the current expiration cancellation and the owner or operator with the letter of credit. Under the terms date, the Regional Administrator will does not fund the trust or obtain of the letter of credit, all amounts paid draw on the letter of credit. When the approved alternative financial assurance pursuant to a draft by the Regional Regional Administrator draws on the within 90 days, the Regional Administrator will be deposited by the letter of credit, the proceeds are Administrator may access the funds. issuing institution directly into the deposited into the standby trust fund, Reclamation and intermediate standby trust fund in accordance with and the funds in the trust become facilities, as under 40 CFR part 265, may instructions from the Regional available for the payment of the costs of not use a performance surety bond Administrator. This standby trust fund closure in compliance with subpart G of because there is no closure plan that has must meet the requirements specified in 40 CFR parts 264 or 265. undergone review under the permitting § 261.143(a), except that until the process. The performance surety bond, standby trust fund is funded pursuant to Insurance which is allowed under the permitting the requirements of this section, the Insurance operates similarly to the standards in 40 CFR part 264 subpart H, requirements, as noted above, that are insurance instrument in 40 CFR part requires the surety, in the event of a not necessary for a surety bond are also 265, with some modifications to reflect failure by the owner or operator to not required for a letter of credit. differences between conditionally comply with the requirements of the The letter of credit must be issued in exempt hazardous secondary materials closure requirements of 40 CFR part an amount at least equal to the current and hazardous wastes. An owner or 264, to perform closure in accordance cost estimate, except as provided in 40 operator may satisfy the requirements of with the closure plan and permitting CFR 261.143(f). The regulations in 40 40 CFR 261.143 by obtaining insurance requirements or to deposit the penal CFR 261.143(f) allow the use of certain that conforms to the requirements of 40 sum of the bond into the standby trust. combinations of instruments so long as CFR 261.143(d) and submitting a Closure plans for permitted facilities their sum is at least equal to the total certificate of such insurance to the undergo detailed review as part of the cost estimates. Regional Administrator At a minimum, permitting process, so it is appropriate Whenever the current cost estimate the insurer must be licensed to transact to allow a surety to perform closure in increases to an amount greater than the the business of insurance or be eligible this circumstance. However, like amount of the letter of credit, the owner to provide insurance as an excess or interim status facilities, reclamation and or operator, within 60 days after the surplus lines insurer, in one or more intermediate facilities do not have increase, must either cause the amount states. closure plans that undergo this type of of the letter of credit to be increased so The wording of the certificate of review. ‘‘During interim status, the that it at least equals the current cost insurance must be identical to the closure and post-closure plans for a estimate and submit evidence of such wording specified in § 261.151(d). As facility are generally not reviewed by increase to the Regional Administrator part of the certificate, the insurer the Regional Administrator until shortly or obtain other financial assurance as warrants that the policy conforms in all before the time of closure. Upon such specified in the regulations in 40 CFR respects with the requirements of 40 review, the Regional Administrator may 261.143 to cover the increase. Whenever CFR 261.143(d), as applicable, and find that major changes are needed in the current cost estimate decreases, the agrees that any provision of the policy the plans. The Agency believes a amount of the letter of credit may be inconsistent with 40 CFR 261.143(d) is performance bond is not appropriate reduced to the amount of the current hereby amended to eliminate such when the actual required performance cost estimate following written approval inconsistency. The insurer also agrees to for the particular facility may not be by the Regional Administrator. furnish to the EPA Regional specified in any detail during most of The Regional Administrator will Administrator(s) a duplicate original of the term of the bond’’ (47 FR 15040). return the letter of credit to the issuing the policy listed above, including all its institution for termination when an endorsements, whenever requested by Letters of Credit owner or operator substitutes alternate the Regional Administrator. The letter of credit requirements financial assurance as specified in 40 The insurance policy must be issued generally operate similarly to the CFR 261.143, or when the Regional for a face amount at least equal to the requirements in 40 CFR part 265, except Administrator releases the owner or current cost estimate, except as that they reflect the status of operator from the requirements of this provided in § 261.143(f), which allows conditionally exempt hazardous section in accordance with § 261.143(i). the use of certain combinations of secondary materials. An owner or So long as the owner or operator instruments so long as their sum is at operator may satisfy the requirements of meets the exclusion and maintains least equal to the total cost estimates. 40 CFR 261.143 by obtaining an financial assurance, the Regional Whenever the current cost estimate irrevocable standby letter of credit Administrator will not access the letter increases to an amount greater than the which conforms to the requirements of of credit. Access to the letter of credit face amount of the policy, the owner or 40 CFR 261.143(c) and submitting the only occurs upon the loss of the operator, within 60 days after the letter to the Regional Administrator. The exclusion. For the letter of credit, in the increase, must either cause the face issuing institution must be an entity event that the hazardous secondary amount to be increased to an amount at which has the authority to issue letters materials at the covered reclamation or least equal to the current cost estimate

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and submit evidence of such increase to analogous to the provisions for surety on Auditing Standards no longer the Regional Administrator or obtain bonds and letters of credit that ensure permits independent auditors to express other financial assurance as specified in that payments under those instruments negative assurance. Thus, to ensure that 40 CFR 261.143 to cover the increase. will occur if the conditionally excluded today’s final rule conforms with current Whenever the current cost estimate hazardous secondary materials lose the professional auditing standards, EPA is decreases, the face amount may be exclusion. using the language from the reduced to the amount of the current Under the insurance provisions of standardized permit rule for this aspect cost estimate following written approval § 265.143, failure of the owner or of the financial test.4 by the Regional Administrator. operator to pay the premiums of a As noted in the March 2007 In 40 CFR 261.143(d)(4), the policy without the substitution of an supplemental proposal, the Agency insurance policy must guarantee that alternative mechanism constitutes a currently has underway a review of the funds will be available to pay the cost significant violation of the regulations. subpart H financial assurance of removal of all hazardous secondary EPA was faced with a decision of how regulations, which will address this materials from the unit, to pay the cost to implement that provision here. Since issue among others in the broader of decontamination of the unit, and to the exclusion relies upon compliance context of 40 CFR parts 264 and 265. As pay the costs of the performance of any with the conditions, failure to pay the part of any rulemaking that addresses activities required under subpart G of 40 premium is significant and may result the results of that review, EPA will CFR parts 264 or 265 for the facilities in loss of the exclusion. Similarly, loss include any necessary changes to the covered by this policy, if they become of the exclusion will preclude the financial assurance condition being necessary. This provision, as that in 40 cancellation or termination of the finalized today. CFR part 265, allows the owner or policy. Under the circumstances, EPA In today’s regulation, the letter from operator to recover the costs of recognizes that insurers may carefully the chief financial officer (see removing hazardous secondary screen applicants to ensure that they § 261.151(e) or (f)) contains a materials and is similar to the will meet the requirements of the requirement to account for obligations provisions in § 265.143(d) that allow the exclusion and establish premiums, assured through a financial test or owner or operator of a facility to be possibly with a substantial portion up corporate guarantee for facilities reimbursed for the costs of closure. This front or collateralized, that reduce the handling conditionally excluded provision also allows the Regional insurer’s risk of non-payment. hazardous secondary materials. This Administrator to allow reimbursement In 40 CFR 265.143(d)(1), there is a addition is necessary because the chief for the same activities that are allowed provision allowing an owner or operator financial officer’s letter required in the under the trust fund. The insurance of a treatment, storage, and disposal 40 CFR part 265 regulations does not provisions that allow for reimbursement facility an additional 90 days from the anticipate these obligations. for the cost of removal of hazardous effective date of the regulations to The financial test and the letter from secondary materials are broader than the provide a certificate of insurance. The the chief financial officer use provisions in 40 CFR 261.151(a) for effective date of the interim status accounting terms, such as current assets, payment from the trust fund. This regulations was in 1982, and therefore current liabilities, and liabilities. Under difference is due to the fact that the this provision is no longer applicable 40 CFR 261.141, which defines the monies in the trust fund are returned to and today’s rule does not allow this terms used in this subpart, these and the owner or operator once the facility additional 90 days. In keeping with the other accounting terms follow their exits the exclusion, but there is no such proposal to use requirements in subpart definition in 40 CFR 265.141(f). As provision for insurance; in order to H of 40 CFR part 265, the additional 90- noted in 40 CFR 265.141(f), ‘‘The make the insurance provisions day period has been deleted from these definitions are intended to assist in the functionally equivalent to their regulations. understanding of these regulations and are not intended to limit the meanings counterparts in 40 CFR part 265, the Financial Test insurance provisions must cover the of terms in a way that conflicts with cost of removing the hazardous EPA had solicited comment on generally accepted accounting secondary materials when the unit exits whether to use the financial assurance practices.’’ This is an important the exclusion. However, the owner or provisions in the standardized permit provision of the financial assurance operator may request reimbursements rule rather than those in 40 CFR part regulations because it allows the terms only if the remaining value of the policy 265, but commenters generally did not used in the test to reflect evolving is sufficient to cover the maximum costs support the standardized permit rule definitions. For example, if the for the facility. alternative. Therefore, certain accounting standards covering retiree The Regional Administrator will give provisions that are available under the obligations change, this provision written consent to the owner or operator standardized permit rule will not be ensures that the accounting in the that he may terminate the insurance available to reclamation and financial test submission to EPA reflects policy when the owner or operator intermediate facilities, with one the new standards. Companies may not substitutes alternate financial assurance exception. The financial test provision use an obsolete definition of these as specified in § 261.143, or the referenced by subpart H of 40 part CFR terms. Regional Administrator releases the 265 includes an obsolete requirement Like the 40 CFR part 265 regulations, owner or operator from the that the Certified Public Accountant’s this regulation includes a provision requirements of this section in report state that ‘‘[i]n connection with accordance with § 261.143(i). that procedure, no matters came to his 4 For current EPA guidance for companies using Under 40 CFR 261.143(d)(8), attention which caused him to believe the financial test in 40 CFR part 264 or 265, please see the February 27, 1997 Memorandum from cancellation, termination, or failure to that the specified data should be Elizabeth Cotsworth to Senior RCRA Policy renew may not occur and the policy will adjusted.’’ This is referred to by the Advisors entitled ‘‘Obsolete Language in the remain in full force and effect in the auditing profession as a ‘‘negative Financial Test for Subtitle C Treatment Storage and assurance.’’ However, the American Disposal Facilities,’’ at http://yosemite.epa.gov/osw/ event that on or before the date of rcra.nsf/ea6e50dc6214725285256bf00063269d/ expiration, the conditional exclusion Institute of Certified Public C68C99D730932BE28525670F006C2B4A/$file/ terminates or is revoked. This is Accountants, Inc.’s (AICPA’s) Statement 14066.pdf.

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allowing an owner or operator to obtain essentially the same as their generator to affirmatively answer if the a corporate guarantee as a method of counterparts in 40 CFR part 265, with reclaimer or intermediate facility has complying with the financial assurance one exception. The state-required notified the appropriate authorities requirements. The provisions governing mechanism provisions have been pursuant to § 260.42 and if the reclaimer who may extend a guarantee are the expanded to indicate that states may or intermediate facility has financial same as those in 40 CFR part 265. Since allow facilities to use their existing assurance as required under there is no requirement for an up-front Subtitle C financial assurance policies § 261.4(a)(24)(vi)(F). Since foreign closure plan, the text of the guarantee in to address the financial assurance reclaimers and foreign intermediate 40 CFR part 261 differs somewhat from condition of 40 CFR 261.4(a)(24)(vi)(F), facilities are not subject to U.S. the language in 40 CFR part 265. In provided they can ensure that the regulations, they cannot comply with § 261.151(g)(1), the guarantor instruments actually cover the financial the notification and financial assurance ‘‘guarantees that in the event of a assurance cost estimate. requirements under today’s rule determination by the Regional (however, hazardous secondary material 5. Provisions Applicable to Hazardous Administrator that the hazardous generators must affirmatively answer Secondary Materials That Are Exported secondary materials at the owner or this question for domestic intermediate and Imported operator’s facility covered by this facilities). guarantee do not meet the conditions of Under today’s final rule, generators The provisions that we are finalizing the exclusion under § 261.4(a)(24), the who export hazardous secondary today in 40 CFR 261.4(a)(25) require guarantor will manage any hazardous materials are required to notify the hazardous secondary material secondary material in accordance with receiving country through EPA and generators to notify EPA of an intended applicable regulations and close the obtain consent from that country before export 60 days before the initial facility in accordance with closure shipment of the hazardous secondary shipment is intended to be shipped off- requirements found in parts 264 and materials takes place (see 40 CFR site. The notification may cover export 265 of this chapter or establish a trust 261.4(a)(25)). These notice and consent activities extending over a 12-month or fund as specified in § 261.143(a) in the requirements provide notification to the shorter period. The notification must name of the owner or operator in the receiving country so that it can ensure include contact information for the amount of the current cost estimate.’’ that the hazardous secondary materials hazardous secondary material generator, are reclaimed rather than disposed of or as well as for the reclaimer and Liability Requirements abandoned. As an additional benefit, intermediate facility, including any The liability coverage requirements these requirements allow the receiving alternate reclaimer or alternate for sudden and nonsudden accidental country the opportunity to consent or intermediate facilities.5 The notification occurrences in subpart H of 40 CFR part not consent based on its analysis of must also include a description of the 261 are essentially the same as those for whether the reclamation facility can type(s) of hazardous secondary TSDFs in 40 CFR 265.147, with revised properly recycle the hazardous materials and the manner in which the terminology so that the regulatory secondary materials and manage the hazardous secondary materials will be language applies to hazardous process residuals in an environmentally reclaimed, the frequency and rate at secondary material reclamation and sound manner within its borders. EPA which they will be exported, the period intermediate facilities. Sudden believes that sections 2002, 3002, 3007, of time over which they will be accidental coverage for bodily injury and 3017 of RCRA provide authority to exported, the means of transport, the and property damage to third parties is impose this condition because such estimated total quantity of hazardous required for all units, and nonsudden notice and consent help determine that secondary materials to be exported, and accidental coverage is required for land- the materials are not discarded. information about transit countries based units. Land-based units are Specifically, hazardous secondary through which such hazardous defined in 40 CFR 260.10 as an area materials that are exported from the secondary materials will pass. where hazardous secondary materials United States and its territories and Notifications must be sent to EPA’s are placed in or on the land before recycled at a reclamation facility located Office of Enforcement and Compliance recycling and are functionally in a foreign country are not solid wastes, Assurance,6 which will then notify the equivalent to the units required to have provided the hazardous secondary receiving country and any transit nonsudden accidental coverage under material generator complies with the countries. For purposes of 40 CFR 40 CFR 265.147(b) (e.g., surface requirements of 40 CFR 261.4(a)(25), 261.4(a)(25), the terms impoundments). In addition, the including notifying EPA of the proposed ‘‘Acknowledgement of Consent,’’ provisions for requesting a variance or export and obtaining subsequent ‘‘receiving country,’’ and ‘‘transit adjusting the coverage are the same as consent from the receiving country. country’’ are used as defined in 40 CFR 40 CFR 265.147(c) and (d) respectively, Included by reference in 40 CFR 262.51 with the exception that the terms except the reference that ties these 261.4(a)(25), the generator must comply in this section refer to hazardous procedures to the Subtitle C permit with the requirements of 40 CFR modification procedures under 40 CFR 261.4(a)(24)(i)–(v), which comprise the 5 Hazardous secondary material generators may 270.41(a)(5) and 40 CFR 124.5 has been hazardous secondary material generator choose, in the notice of export, to designate requirements under the transfer-based alternate reclaimers or alternate intermediate removed, because these provisions facilities to which the hazardous secondary would not apply to excluded hazardous exclusion, such as speculative materials may be exported in the event that delivery secondary material. accumulation and reasonable efforts. to the primary reclaimer or intermediate facility However, hazardous secondary material cannot take place. Hazardous secondary material Other Financial Assurance Provisions generators, of course, must comply with all generators who export hazardous conditions (e.g., reasonable efforts) for each Finally, the provisions for incapacity secondary materials for reclamation are alternate reclaimer and alternate intermediate of owners or operators, guarantors, or not required to comply with 40 CFR facility as with a primary reclaimer and financial institutions (40 CFR 261.148), 261.4(a)(24)(v)(B)(2) for foreign intermediate facility. 6 use of state-required mechanisms (40 reclaimers and intermediate facilities The Office of Enforcement and Compliance Assurance (OECA) is the office within EPA that CFR 261.149), and state assumption of because, as part of satisfying reasonable implements the notice and consent process for responsibility (40 CFR 261.150) are efforts, this question requires the exports.

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secondary materials, rather than each year, a report containing its name, materials within a reasonable time hazardous waste. mailing and site address, and EPA ID frame after operations cease could cause When the receiving country consents number (if applicable); the calendar year the facility to become subject to the full (or objects) to the receipt of the covered by the report; the name and site Subtitle C requirements if the Agency hazardous secondary materials, EPA address of each reclaimer and determines that reclamation is no longer will inform the hazardous secondary intermediate facility; and, for each feasible. While this final rule does not material generator, through an hazardous secondary material exported, set a specific time frame for these Acknowledgement of Consent, of the a description of the hazardous activities, the Agency believes that they receiving country’s response, as well as secondary material, the type of typically should be completed within any response from any transit countries. hazardous secondary material (reported the time frames established for For exports to Organization for as the EPA hazardous waste numbers analogous activities. For example, the Economic Cooperation and that would apply if the hazardous requirements for product tanks under 40 Development (OECD) Member secondary materials were managed as CFR 261.4(c) allow 90 days for removal countries, the receiving country may hazardous wastes), the DOT hazard of hazardous material after the unit choose to respond to the notification class, the name and U.S. EPA ID number ceases to be operated for manufacturing. with tacit, rather than written, consent. (where applicable) for each transporter This time frame should serve as a With respect to exports to such OECD used, the total amount of hazardous guideline for regulators in determining, Member countries, if no objection has secondary material shipped and the on a case-by-case basis, whether owners been lodged by the receiving country or number of shipments pursuant to each and operators have completed these transit countries to a notification within notification. Hazardous secondary activities within in a reasonable time 30 days after the date of issuance of the material generators must also sign a frame. In any event, these hazardous acknowledgement of receipt of certification statement (found under 40 secondary materials remain subject to notification by the competent authority CFR 261.4(a)(25)(xi)(E)). These the speculative accumulation of the receiving country, the U.S. procedures are similar to those required restrictions in 40 CFR 261.4(a)(8), which understands that an export may for exports of hazardous waste under 40 includes both a time limitation of commence at that time. In such cases, CFR part 262 subpart E, except for the recycling 75% of the hazardous EPA will send an Acknowledgment of use of the hazardous waste manifest secondary material within a year and a Consent to inform the hazardous which is not required under today’s requirement that the facility be able to secondary material generator that the exclusions. show there is a feasible means of receiving country and any relevant Imports of hazardous secondary recycling the hazardous secondary transit countries have not objected to materials are eligible for today’s material. the shipment, and are thus presumed to transfer-based exclusion, provided that In addition, as described in section have consented tacitly. Tacit consent the person who imports the hazardous VIII.C. above, in order to be released expires one calendar year after the close secondary material fulfills all from the financial assurance condition, of the 30-day period; re-notification and requirements and conditions (e.g., intermediate and reclamation facilities renewal of all consents is required for notification, reasonable efforts, will need to submit for approval a plan exports after that date. This tacit recordkeeping) for a hazardous for removing the hazardous secondary consent procedure for exports of secondary material generator under 40 material and decontaminating the unit, hazardous secondary materials to OECD CFR 261.4(a)(24) of today’s rule. Persons and then, when the work is completed, Member countries in this rule is similar who import hazardous secondary submit a certification from a qualified to the tacit consent procedure for materials are not eligible for today’s Professional Engineer that all hazardous hazardous waste exports to OECD generator-controlled exclusion since secondary materials have been removed Member countries under 40 CFR part EPA would not be able to ensure the from the unit and the unit has been 262 subpart H. We note that Canada and close management and monitoring of decontaminated. Mexico, though they are OECD Member the hazardous secondary materials by a E. Enforcement countries, typically require written single entity in a foreign country. consent for exports to their countries. Hazardous secondary materials The hazardous secondary material D. Termination of the Exclusion transferred to a third party for the generator may proceed with the As with the generator-controlled purpose of reclamation are excluded shipment of the hazardous secondary exclusion, units managing hazardous from RCRA Subtitle C regulation under materials only after it has received an secondary materials excluded under the certain conditions and restrictions. If a Acknowledgment of Consent from EPA transfer-based exclusion are not subject hazardous secondary material generator indicating the receiving country’s to the closure regulations in 40 CFR fails to meet any of the above-described consent (actual or tacit). If the receiving parts 264 and 265 subpart G. However, conditions that are applicable to the country does not consent to the receipt when the use of these units is ultimately generator, then the hazardous secondary of the hazardous secondary materials or discontinued, all owners and operators materials would be considered withdraws a prior consent, EPA will must manage any remaining hazardous discarded by the generator and would notify the hazardous secondary material secondary materials that are not be subject to the RCRA Subtitle C generator in writing. EPA also will reclaimed and remove or decontaminate requirements from the point at which notify the hazardous secondary material all hazardous residues and such material was generated. In generator of any responses from transit contaminated containment system addition, if a reclaimer or an countries. Hazardous secondary components, equipment structures, and intermediate facility failed to meet any material generators must keep copies of soils. These hazardous secondary of the above-described conditions, then any notifications and consents for a materials and residues, if no longer the hazardous secondary materials period of three years following receipt intended for reclamation, would also no would be considered discarded by the of the consent. longer be eligible for the exclusion reclaimer or intermediate facility and Hazardous secondary material (which only applies to hazardous would be subject to the RCRA Subtitle generators must also file with the secondary materials that will be C requirements from the point at which Administrator, no later than March 1 of reclaimed). Failure to remove these the reclaimer or intermediate facility

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failed to meet a condition or restriction, secondary materials that are legitimately redefinition of solid waste specifically. thereby discarding the material. reclaimed under the control of the We proposed to codify in the RCRA It should be noted that the failure of generator (40 CFR 261.2(a)(2)(ii) and 40 hazardous waste regulations four the reclaimer or intermediate facility to CFR 261.4(a)(23)) and as a condition of general criteria to be used in meet the conditions of the exclusion the exclusion for hazardous secondary determining whether recycling of does not mean that the hazardous materials that are transferred for the hazardous secondary materials is secondary material was considered purpose of legitimate reclamation (40 legitimate. In the supplemental proposal waste when handled by the generator, as CFR 261.4(a)(24) and 40 CFR of March 26, 2007, at 72 FR 14197– long as the generator can adequately 261.4(a)(25)). EPA is also requiring that 14201, we proposed two changes to the demonstrate that it has met its hazardous secondary materials must be 2003 proposed legitimacy criteria and obligations, including the obligation legitimately recycled under the final asked for public comment on those under 40 CFR 261.4(a)(24)(v)(B) to make non-waste determinations (40 CFR changes. The changes were (1) a reasonable efforts to ensure that the 260.34) for hazardous secondary restructuring of the proposed criteria, hazardous secondary material will be materials that are (a) reclaimed in a called ‘‘factors’’ in this proposal, to reclaimed legitimately and properly continuous industrial process and (b) make two of them mandatory, while managed. A hazardous secondary indistinguishable in all relevant aspects leaving the other two as factors to be material generator that met its from a product or intermediate. considered, and (2) additional guidance reasonable efforts obligations could, in In addition, in Section IX.B.3, EPA on how the economics of the recycling good faith, ship its excluded materials has included a discussion of how the activity should be considered in a to a reclamation facility or intermediate current legitimacy policy continues to legitimate recycling determination. facility where, due to circumstances apply to existing exclusions and how The concept of legitimacy being beyond its control, they were released the four factors being added to 40 CFR finalized in today’s rule as a restriction and caused environmental problems at 260.43 are substantively the same as the or a condition for the final exclusions that facility. In such situations, and current legitimacy policy. and the non-waste determinations is not where the generator’s decision to ship to substantively different from the that reclaimer or intermediate facility is A. Background of Legitimacy Agency’s longstanding policy that has based on an objectively reasonable Under the RCRA Subtitle C definition been expressed in our earlier preamble belief that the hazardous secondary of solid waste, many existing hazardous discussions and policy statements. The materials would be reclaimed secondary materials are not solid wastes October 28, 2003, definition of solid legitimately and otherwise managed in and, thus, not subject to RCRA’s ‘‘cradle waste proposal discussed the history of a manner consistent with this to grave’’ management system if they are the guidance EPA has provided to the regulation, the generator would not have recycled. The basic idea behind this regulated community on the question of violated the terms of the exclusion. construct is that recycling of such what it means to legitimately recycle. To In addition, the Agency affirms in this materials often closely resembles summarize that discussion, the January preamble that § 261.2(f) applies to all normal industrial manufacturing rather 4, 1985, preamble to the final rule that claims that hazardous secondary than waste management. However, since promulgated the original definition of materials are not solid waste because there can be a significant economic solid waste regulations established they are being legitimately recycled, incentive to manage hazardous EPA’s concept of legitimacy and including those that are not specifically secondary materials outside the RCRA described several indicators of sham addressed in this final rule. regulatory system, there is a potential recycling. A similar discussion that Respondents in enforcement cases for some handlers to claim that they are addressed legitimacy as it pertains to should be prepared to demonstrate that recycling, when, in fact, they are burning hazardous secondary materials they meet the terms of the exclusion or conducting waste treatment and/or for energy recovery was presented in the exemption, which includes disposal in the guise of recycling.7 To preamble to the January 8, 1988, demonstrating that the recycling is guard against this, EPA has long proposed amendments to the definition legitimate. Appropriate documentation articulated the need to distinguish of solid waste (53 FR 522). must be provided to the enforcing between ‘‘legitimate’’ (i.e., true) On April 26, 1989, the Office of Solid agency to demonstrate that the material recycling and ‘‘sham’’ (i.e., fake) Waste (OSW) issued a memorandum is not a solid waste or is exempt from recycling, beginning with the preamble that consolidated preamble statements regulation. In addition, the recycler of to the 1985 regulations that established concerning legitimate recycling that had the hazardous secondary material the definition of solid waste (50 FR 638, been articulated previously into a list of should be prepared to show it has the January 4, 1985). criteria to be considered in evaluating necessary equipment to perform the In the October 28, 2003, proposal at legitimacy [OSWER directive recycling operation. Furthermore, any 68 FR 61581–61588, EPA discussed its 9441.1989(19)]. This memorandum, release of the hazardous secondary position on the relevance of legitimacy known to many as the ‘‘Lowrance materials to the environment that is not to hazardous secondary materials Memo,’’ has been a primary source of immediately cleaned up would be recycling in general and to the guidance for the regulated community considered discarded and, thus, the and for implementing agencies in hazardous secondary material that was 7 As an example of sham recycling, in a recent distinguishing between legitimate and released would be a solid waste and case the owner of a facility in Mississippi was sham recycling for many years. potentially subject to the RCRA found to be illegally burying hazardous waste on The legitimacy provision applicable hazardous waste regulations. his property, where it was leaching into the to these exclusions and non-waste surrounding soil and groundwater, while he was determinations is based on the October IX. Legitimacy telling regulators and customers that he was recycling it into a salable product (Department of 2003 proposal and March 2007 As part of this final rulemaking, EPA Justice, ‘‘Mississippi Hazardous Waste Operator supplemental proposal and all relevant has decided to codify in 40 CFR 260.43 Sentenced to 41 Months in Prison for information available to EPA as Environmental Crimes,’’ news release, February 7, the requirement that materials be 2008, http://www.epa.gov/compliance/resources/ contained in the rulemaking record. The legitimately recycled as a requirement cases/criminal/highlights/2008/pridemore-02-07- basis for how the legitimacy for the exclusion for hazardous 08.pdf). requirement in 40 CFR 260.43 works

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includes the reasoning in the October useful contribution to the recycling event that the process does not conform 2003 and March 2007 preambles to the process or to the product of the to one of the two factors under proposal and supplemental proposal, recycling process and a requirement that § 260.43(c), the facility should be able to respectively, and consideration of all the product of the recycling process is show that it considered that factor and significant public comments as valuable. These two legitimacy factors why the recycling activity overall discussed in section XVIII of this make up the core of legitimacy and, remains legitimate. For example, under preamble, as well as in the response to therefore, a process that does not existing exclusions from the definition comment document. conform to them cannot be a legitimate of solid waste, reuse of lead Following the detailed discussion of recycling process, but would be contaminated foundry sands may or the structure of the 40 CFR 260.43 considered sham recycling. may not be legitimate, depending on the legitimacy factors and each individual The second part of legitimacy is two use. The use and reuse of foundry sands factor in this preamble, EPA has factors that must be considered when a for mold making in a facility’s sand loop included a discussion of how the recycler is making a legitimacy under normal industry practices has current legitimacy policy continues to determination. EPA believes that these been found to be legitimate because the apply to existing exclusions and how two factors are important in determining sand is part of an industrial process the four factors being added to 40 CFR legitimacy, but has not made them where there is little chance of the 260.43 compare to the questions in the factors that must be met because the hazardous constituents being released Lowrance Memo and the discussions in Agency knows that there will be some into the environment or causing damage the preambles identified above. situations in which a legitimate to human health and the environment recycling process does not conform to when it is kept inside, because there is B. How To Determine When Recycling Is one or both of these two factors, yet the lead throughout the foundry’s process, Legitimate reclamation activity would still be and because there is a clear value to 1. What Is the Purpose of Legitimacy? considered legitimate. EPA does not reusing the sand.9 However, in the case believe that this will be a common of lead contaminated foundry sand used As discussed in the October 2003 occurrence, but in recognition that as children’s play sand, the same high proposal and the March 2007 legitimate recycling may occur in these levels of lead would disqualify this use supplemental proposal to this situations, EPA has made management from being considered legitimate rulemaking, the Agency has a long- of the hazardous secondary materials recycling.10 the same result would be standing policy that all recycling of and the presence of hazardous reached when applying Factor 4. hazardous secondary materials must be constituents in the product of the Factor 1—Useful Contribution. legitimate, including both excluded recycling process to be factors that must ‘‘Legitimate recycling must involve a recycling and the recycling of regulated be considered in the overall legitimacy hazardous secondary material that hazardous wastes. The legitimacy determination, but not factors that must provides a useful contribution to the provision in today’s final exclusions always be met. recycling process or to a product of the and non-waste determinations is Structure of legitimacy provision. recycling process * * * The hazardous designed to distinguish between real Under the first paragraph of 40 CFR secondary material provides a useful recycling activities—legitimate 260.43, hazardous secondary materials contribution if it (i) contributes valuable recycling—and ‘‘sham’’ recycling, an that are not legitimately recycled are ingredients to a product or intermediate; activity undertaken by an entity to avoid discarded materials and, therefore, are or (ii) replaces a catalyst or carrier in the the requirements of managing a solid wastes. This paragraph also states recycling process; or (iii) is the source hazardous secondary material as a that anyone claiming an exclusion at of a valuable constituent recovered in hazardous waste. Because of the § 261.2(a)(2)(ii), § 261.4(a)(23), the recycling process; or (iv) is economic advantages in managing § 261.4(a)(24), or § 261.4(a)(25) or using recovered or regenerated by the hazardous secondary materials as a non-waste determination at recycling process; or (v) is used as an recycled materials rather than as wastes, § 260.30(d) or (e) must be able to effective substitute for a commercial there is an incentive for some handlers demonstrate that its recycling activity is product’’ (40 CFR 260.43(b)(1)). to claim they are recycling when, in legitimate. The Agency has included the This factor, one of the two core fact, they are conducting waste language ‘‘In determining if their legitimacy factors, expresses the treatment and/or disposal. recycling is legitimate, persons must principle that hazardous secondary materials should contribute value to the 2. Legitimacy Requirements address the requirements of § 260.43(b) and must consider the requirements of recycling process. This factor is an In this action, EPA is finalizing § 260.43(c)’’ to make it clear that the requirements that reclamation being factors in paragraph (b) must be met, anticipate that a hazardous secondary material undertaken under the exclusions at while the factors in paragraph (c) must generator may inquire as to whether the reclamation § 261.2(a)(2)(ii), § 261.4(a)(23), (24), and process is legitimate (40 CFR 261.4(a)(24)(v)(B)(1)). be considered and evaluated in Reasonable effort inquiries will vary by generator (25) and the non-waste determinations determining whether the recycling and may include a request for information or at § 260.30(d) and (e) be legitimate. documentation of legitimacy. activity overall is legitimate. 9 These requirements can be found in the Although there is no specific Letter. Elizabeth Cotsworth, Director Office of final regulatory text at § 260.34(b), Solid Waste, to Amy Blankenbiller, American recordkeeping requirement that goes Foundry Society, March 28, 2001. http:// § 261.2(a)(2)(ii), § 261.4(a)(23)(v), and with the ability to demonstrate yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e § 261.4(a)(24)(iv). Each of these legitimacy, EPA would expect that in 85256d090071175f/4C9A2EEE6E5F859B 85256AC5004FC1C2/$file/14534.pdf provisions refers to § 260.43, where the the event of an inspection or an full requirements for determining the 10 One of the profiles in the docket shows that enforcement action by an implementing from 1997–1998, a horticultural nursery purchased legitimacy of the reclamation operation agency, the recycler would be able to approximately 375 tons of foundry sand that can be found. show how it made the overall legitimacy contained lead above the regulatory limits and that The design of legitimacy in the final determination per § 261.2(f).8 In the was then bagged and sold as play sand to rule has two parts. The first is a approximately 40 different retailers. (U.S. EPA, An Assessment of Environmental Problems Associated requirement that hazardous secondary 8 Under the transfer-based exclusion being with Recycling of Hazardous Secondary Materials, materials being recycled provide a finalized in today’s rule, a reclaimer should also Appendix 2).

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essential element to legitimate recycling a single recycling process and the we provided a number of different ways because real recycling is not occurring hazardous secondary materials are a material could contribute to the if the hazardous secondary materials mixed or blended as a part of the process in the regulatory text describing being added or recovered do not add process, each hazardous secondary this factor. Any one of these would be anything to the process. This factor is material would need to satisfy the sufficient to demonstrate that the intended to prevent the practice of useful contribution factor. This hazardous secondary material provides adding to or recovering hazardous requirement prevents situations where a a useful contribution. Overall, the secondary materials from a worthless hazardous secondary material Agency considers this factor to be a manufacturing operation simply as a could be mixed with valuable and critical element in determining means of disposing of them, or useful hazardous secondary materials in legitimacy and any recycling process recovering only small amounts of a an attempt to disguise and dispose of it. that does not meet this factor cannot be constituent, which EPA would consider In addition, a situation in which considered legitimate recycling. sham recycling. hazardous secondary materials that can Factor 2—Valuable Product or In response to comments received on be useful to a process are added to that Intermediate. ‘‘The recycling process this factor asking for more clarification process in much greater amounts than must produce a valuable product or on what useful contribution means, the are needed to make the end-product or intermediate * * * The product or regulatory text includes an explanation to otherwise provide its useful intermediate is valuable if it is (i) sold of how useful contribution might be contribution would also be sham to a third party or (ii) used by the achieved in (i) through (v) of recycling. recycler or the generator as an effective § 260.43(b)(1). EPA stresses that the Another way the usefulness of the substitute for a commercial product or ways in which hazardous secondary hazardous secondary material’s as an ingredient or intermediate in an materials can add value and be useful in contribution could be demonstrated is industrial process’’ (40 CFR a recycling process are (i) contributing by looking at the efficiency of the 260.43(b)(2)). valuable ingredients to a product or material’s use in the recycling process— This factor, one of the two core intermediate; (ii) replacing a catalyst or that is, how much of the constituent in legitimacy factors, expresses the carrier in the recycling process; (iii) a hazardous secondary material is principle that the product or providing a valuable constituent to be actually being used. As an example, if intermediate of the recycling process recovered; (iv) being regenerated; or (v) there is a constituent in the hazardous should be a material of value, either to being used as an effective substitute for secondary material that could add value a third party who buys it from the a commercial product. The preamble to to the recycling process, but, due to recycler, or to the generator or recycler the October 2003 proposed rule gave process design, most of it is not being itself, who can use it as a substitute for full descriptions of these five situations recovered but is being disposed of in the another material that it would otherwise (68 FR 61585), but the Agency has also residuals, this would be a possible have to buy or obtain for its industrial included them in the regulatory text to indicator of sham recycling. However, process. This factor is also an essential clarify this factor for the regulated there are certainly recycling scenarios element of the concept of legitimate community. where a low recovery rate could still be recycling because recycling cannot be The Agency also wants to restate for legitimate. For example, under an occurring if the product or intermediate clarification that for hazardous existing exclusion, if the concentration of the recycling process is not of use to secondary materials to meet the useful in a metal-bearing hazardous secondary anyone and, therefore, is not a real contribution factor, not every material is low (2%–4%) and a product. This factor is intended to constituent or component of the recycling process was able to recover a prevent the practice of running a hazardous secondary material has to large percentage of the target metal, this hazardous secondary material through make a contribution to the recycling factor could be met and the recycling an industrial process to make something activity. For example, a legitimate may be legitimate (depending on the just for the purpose of avoiding the costs recycling operation involving precious outcome of the analysis of the other of hazardous waste management, rather metals might not recover all of the legitimacy factors). than for the purpose of using the components of the hazardous secondary One way to use the efficiency of the product or intermediate of the recycling material, but would recover precious recycling process to evaluate legitimacy activity. Such a practice would be sham metals with sufficient value to consider is to compare the process to typical recycling. the recycling process legitimate. In industry recovery rates from raw Most commenters on the proposed addition, the recycling activity does not materials to determine if the recycling rule for this factor stated that this is a have to involve the hazardous process is reasonably efficient. This useful way of gauging whether recycling component of the hazardous secondary method should involve an examination is actually taking place, but requested materials if the value of the contribution of the overall process, not just a single that the Agency clarify the meaning of of the non-hazardous component step of the process. For example, if one the term valuable, as it is used in the justifies the recycling activity. One step in the process recovers a small regulatory text. EPA is repeating and example of this factor from an existing percentage of the constituent, but the clarifying today that for the purpose of exemption is where hazardous overall process recovers a much larger this factor, a recyclable product may be secondary materials containing large percentage, the Agency would consider considered ‘‘valuable’’ if it can be amounts of zinc, a non-hazardous the overall efficiency of the recycling shown to have either economic value or component, are recycled into zinc process in determining whether a more intrinsic value to the end user. micronutrient fertilizers. In cases where hazardous secondary materials are Evaluations of ‘‘valuable’’ for the the hazardous component is not being providing a useful contribution. purpose of this factor should be done on used or recycled, the Agency stresses There are various ways in which a case-by-case basis, but one way to that the recycler is responsible for the hazardous secondary materials can be demonstrate that the recycling process management of any hazardous residuals useful to a recycling process and various yields a valuable product would be the of the recycling process. ways are laid out in this discussion of documented sale of a product of the In a situation where more than one how a facility might demonstrate recycling process to a third party. Such hazardous secondary material is used in conformity with this factor. In addition, documentation could be in the form of

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receipts or contracts and agreements sham recycling. An example of this were the only value to the recycler, it that establish the terms of the sale or would be a recycler that reclaims a would mean that discard was taking transaction. This transaction could hazardous secondary material and then place. include money changing hands or, in uses that material to make blocks or This factor addresses the management other circumstances, may involve trade building materials for which it has no of hazardous secondary materials in two or barter. A recycler that has not yet market and then ‘‘uses’’ those building distinct situations. The first situation is arranged for the sale of its product to a materials to make a warehouse in which when a hazardous secondary material is third party could establish value by it stores the remainder of the building analogous to a raw material which it is demonstrating that it can replace materials that it is unable to sell. replacing in the process. In this case, the another product or intermediate that is Factor 3—Managed as a Valuable hazardous secondary material should be available in the marketplace. A product Commodity. ‘‘The generator and the managed prior to recycling similarly to of the recycling process may be sold at recycler should manage the hazardous the way the analogous raw materials are a loss in some circumstances, but the secondary material as a valuable managed in the course of normal recycler would have to be prepared to commodity. Where there is an manufacturing. EPA expects that all show how the product is clearly analogous raw material, the hazardous parties handling hazardous secondary valuable to the purchaser. secondary material should be managed, materials destined for recycling— However, many recycling processes at a minimum, in a manner consistent generators, transporters, intermediate produce outputs that are not sold to with the management of the raw facilities and reclamation facilities— another party, but are instead used by material. Where there is no analogous will handle them in generally the same the generator or recycler. A product of raw material, the hazardous secondary manner in which they would handle the the recycling process may be used as a material should be contained. valuable raw materials they might feedstock in a manufacturing process, Hazardous secondary materials that are otherwise be using in their process. but have no established monetary value released to the environment and are not ‘‘Analogous raw material,’’ as defined in the marketplace. Such recycled recovered immediately are discarded’’ elsewhere in this preamble, is a raw products or intermediates would be (40 CFR 260.43(c)(1)). material for which the hazardous considered to have intrinsic value, The first of the additional factors that secondary material substitutes and though demonstrating intrinsic value must be considered expresses the which serves the same function and has may be less straightforward than principle that hazardous secondary similar physical and chemical demonstrating value for products that materials being recycled should be properties as the hazardous secondary are sold in the marketplace. managed in the same manner as other material. Demonstrations of intrinsic value could valuable materials. This factor requires The second situation the factor involve showing that the product of the those making a legitimacy addresses is the case where there is no recycling process or intermediate determination to look at how the analogous raw material that the replaces an alternative product that hazardous secondary material is hazardous secondary material is would otherwise have to be purchased managed before it enters the recycling replacing. This could be either because or could involve a showing that the process. In EPA’s view, a recycler will the process is designed around a product of the recycling process or value hazardous secondary materials particular hazardous secondary intermediate meets specific product that provide an important contribution material—that is, the hazardous specifications or specific industry to its process or product and, therefore, secondary material is not replacing standards. Another approach could be will manage those hazardous secondary anything—or it could be because of to compare the product’s or materials in a manner consistent with physical or chemical differences intermediate’s physical and chemical how it manages a valuable feedstock. If, between the hazardous secondary properties or efficacy for certain uses on the other hand, the recycler does not material and the raw material that are with those of comparable products or manage the hazardous secondary too significant for them to be considered intermediates made from raw materials. materials as it would a valuable ‘‘analogous.’’ Some recycling processes may consist feedstock, that behavior may indicate Hazardous secondary materials that of multiple steps that may occur at that the hazardous secondary materials have significantly different physical or separate facilities. In some cases, each may not be recycled, but rather released chemical properties when compared to processing step will yield a valuable into the environment and discarded. the raw material would not be product or intermediate, such as when This factor may be particularly considered analogous even if they serve a metal-bearing hazardous secondary appropriate in the case where a recycler the same function because it may not be material is processed to reclaim a has been paid by a generator to take its appropriate to manage them in the same precious metal and is then put through materials as a result of the economic way. In this situation, the hazardous another process to reclaim a different incentives in the hazardous secondary secondary material would have to be mineral. When each step in the process materials market. By looking at the contained for this factor to be met. A yields a valuable product or management of the hazardous secondary hazardous secondary material is intermediate that is salable or usable in material before it enters the recycler’s ‘‘contained’’ if it is placed in a unit that that form, the recycling activity would process, the entity making the controls the movement of that material conform to this factor. legitimacy determination can tell that a out of the unit. This requirement is Like the other factors, this factor material being managed like an consistent with the idea that normal should be examined and evaluated on a analogous raw material is, in fact, manufacturing processes are designed to case-by-case basis looking at the specific valued by the recycler. If the hazardous use valuable material inputs efficiently facts of a recycling activity. If, for secondary material is not being rather to than allow them to be released instance, a recycling activity produces a managed like a valuable raw material into the environment. product or intermediate that is used by because it is uncontrolled or is being For example, if a manufacturer has an the recycler itself, but does not serve released, that indicates that the fee the ingredient that is a dry raw material any purpose and is just being used so recycler obtains for taking the hazardous managed in supersacks, the Agency that the product or intermediate appears secondary material may be its only would expect that a hazardous valuable, that would be an indicator of value to that recycler. If the fee received secondary material that is a similar dry

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material also would be managed in individual facts of situations like the hazardous constituents into the final supersacks or in a manner that would one described here can be evaluated on product when they are not needed to provide equivalent protection. If, on the a case-by-case basis to determine if they make that product effective in its other hand, the hazardous secondary affect the legitimacy of the recycling purpose. This factor, therefore, is material was instead managed in an activity. designed to determine when toxics that outdoor pile without appropriate In summary, given the nature of the are ‘‘along for the ride’’ are discarded in controls in place to address releases to legitimacy factors and their need to a final product and, therefore, the the environment, it may indicate that it apply to all the practices covered by the hazardous secondary material is not was not being handled as a valuable exclusions in this final rule, it is not being legitimately recycled. commodity. If, however, the appropriate or practicable for EPA to To evaluate this factor, a recycler will manufacturer decided to replace the dry develop a specific management ordinarily compare the product of the raw material in its process with a liquid standard. In the absence of such a recycling process to an analogous having the same constituents, it would management standard, EPA is using this product made of raw materials. For not be sufficient, nor would it make factor: materials must be managed as example, if a recycling process sense, for the liquid to be managed in analogous raw materials or, if there are produced paint, the levels of hazardous supersacks. Instead, the liquid would no analogous raw materials, the constituents in the paint will be have to be ‘‘contained’’ (for example in materials must be contained. EPA’s compared with the levels of the same a tank or surface impoundment). intent with this factor is that hazardous constituents found in similar paint An important part of this factor is the secondary materials are managed in the made from virgin raw materials. statement in the regulatory text same manner as materials that have A recycler is also allowed to perform clarifying that hazardous secondary been purchased or obtained at some this evaluation by comparing the materials that are released to the cost, just as raw materials are. Just as it hazardous constituents in the hazardous environment and not recovered is good business practice to ensure that secondary material feedstock with those immediately are discarded. Valuable raw materials enter the manufacturing in an analogous raw material feedstock. products should not be allowed to process rather than being spilled or If the hazardous secondary material escape into the environment through released, we would expect hazardous feedstock does not contain significantly poor management and this factor secondary materials to be managed higher concentrations of hazardous clarifies that those hazardous secondary effectively and efficiently in order that constituents than the raw material materials that do escape (and are not their full value to the manufacturing feedstock, then the end product of the immediately recovered) are clearly process would be realized. recycling process would not contain discarded. Either a large release or Factor 4—Comparison of Toxics in excess hazardous constituents ‘‘along ongoing releases of smaller amounts the Product. ‘‘The product of the for the ride’’ either. EPA is clarifying could indicate that, in general, the recycling process does not (i) contain here that this method of showing that hazardous secondary material is not significant concentrations of any the product does not have ‘‘toxics along being managed as a valuable product, hazardous constituents found in for the ride’’ is acceptable. There may be which could potentially lead to the Appendix VIII of part 261 that are not cases in which it is easier to compare recycling process being found not to be found in analogous products; or (ii) feedstocks than it is to compare legitimate. Hazardous secondary contain concentrations of any hazardous products because the recycler knows materials that are immediately constituents found in Appendix VIII of that the hazardous secondary material is recovered before they disperse into the part 261 at levels that are significantly very similar in profile to the raw environment—air, soil, or water—and elevated from those found in analogous material. A comparison of feedstocks are reintroduced in the recycling products; or (iii) exhibit a hazardous may also be easier in cases where the process are not discarded. This characteristic (as defined in part 261 recycler creates an intermediate which determination must be made on a case- subpart C) that analogous products do is later processed again and may end up by-case basis, however. not exhibit’’ (40 CFR 260.43(c)(2)). in two or more products, when there is EPA has determined that it is The second of the additional factors no analogous product, or when appropriate that this factor is one of the that must be considered requires those production of the product of the two that must be considered rather than making a legitimacy determination to recycling process has not yet begun. a factor that must be met because there look at the concentrations of the This factor identifies three ways to are situations in which this factor is not hazardous constituents found in the evaluate whether or not unacceptable met, but recycling appears to be product made from hazardous amounts of hazardous constituents are legitimate. An example of this kind of secondary materials and compare them passed through to the products of the situation is described in the March 2007 to the concentrations of hazardous recycling process. (As explained above, supplemental proposal (72 FR 14199). constituents in analogous products. Any these methods also could be used to In the example, a hazardous secondary of the following three situations could compare the hazardous secondary material that is a powder-like material is be an indicator of sham recycling: a material feedstock to a raw material shipped in a woven super sack and product that contains significant levels feedstock, if the recycler prefers.) The stored in an indoor containment area, of hazardous constituents that are not first method specifies that when whereas the analogous raw material is found in the analogous products; a analogous products made from raw shipped and stored in drums. A strict product with hazardous constituents materials do not contain hazardous reading of this factor may determine that were in the analogous products, but constituents, the product of the that the hazardous secondary material is contains them at significantly higher recycling process should not contain not being managed in a manner concentrations; or a product that significant amounts of hazardous consistent with the raw material even if exhibits a hazardous characteristic that constituents. For example, if paint made the differences in management are not analogous products do not exhibit. Any from reclaimed solvent contains actually impacting the likelihood of a of these situations could indicate that significant amounts of cadmium, but the release. By designing the legitimacy sham recycling is occurring because in same type of paint made from virgin raw factors so that this one has to be lieu of proper hazardous waste disposal, materials does not contain cadmium, it considered, but not necessarily met, the the recycler could have incorporated could indicate that the cadmium serves

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no useful purpose and is being passed scheme would be in the use and reuse the product as it proceeds through the though the recycling process and of foundry sands for mold making in a various steps of the process. In many discarded in the product. facility’s sand loop. Because of repeated cases, there is not an analogous product The second method addresses exposure to metals in a foundry’s to compare the products of these analogous products that do contain process, the sands used to make the processes so this factor may not be hazardous constituents and asks molds may have significantly higher relevant because of the nature of the whether the concentrations of those concentrations of hazardous operations. As with the above example, hazardous constituents are significantly constituents than virgin sand. However, if a facility considers a factor and higher in the product of the recycling because the sand is part of an industrial decides that it is not applicable to its process than in the product made from process where there is little chance of process, the Agency suggests that the raw materials. Concentrations of the hazardous constituents being facility evaluate the presence of hazardous constituents in the product of released into the environment or hazardous constituents in its product the recycling process that are causing damage to human health and and be prepared to demonstrate both significantly higher than in the product the environment when it is kept inside, that it considered this factor and the made from virgin raw materials could because there is lead throughout the reasons it believes the factor is not again be an indicator of sham recycling. foundry’s process, and because there is relevant. For example, if a lead-bearing hazardous a clear value to reusing the sand, this As discussed in more detail in the secondary material was reclaimed and would be an example of a situation comments section of this preamble then that material was used as an where this factor is not met, but it does (section XVIII) and in the response to ingredient in making ceramic tiles and not affect the legitimacy of the recycling comments document in the docket, the amount of lead in the tiles was process. commenters on this factor requested significantly higher than the amount of In fact, EPA has concluded as a clarification concerning what EPA lead found in similar tiles made from general matter that foundries engaged in meant by the terms used in this factor. virgin raw materials, the recycler should the reuse of lead-containing foundry In response to some of these comments, look more closely at the factors to sands are recycling those sands EPA has made two clarifications in the determine the overall legitimacy of the legitimately and these sands would not regulatory text by (1) specifying that the process. be regulated under RCRA Subtitle C hazardous constituents referred to in the The third method under this factor is (under the circumstances described in regulation are those that are found in whether the product of the recycling EPA’s March 2001 memorandum on this Appendix VIII to 40 CFR part 261 and process exhibits a hazardous subject).11 Thus, while the used sands (2) clarifying that the hazardous characteristic that analogous products in the sand loop arguably have toxics- characteristics to which EPA is referring do not exhibit. Requiring an evaluation along-for-the ride, EPA did not raise to are those in 40 CFR part 261 subpart of hazardous characteristics ensures that questions about the legitimacy of the C. products of the recycling process do not recycling, given the overall nature of the The Agency also received much exhibit the characteristics of toxicity, operations. If the used foundry sand comment on the term ‘‘significant’’ and ignitability, corrosivity, or reactivity were being recycled into a different what the Agency intended by this term. when the analogous products do not. product, such as a material used on the EPA has decided to keep the term in the The Agency believes that most issues ground or in children’s play sand, the final rule. The alternative to using associated with ‘‘toxics along for the legitimacy determination would be very ‘‘significant’’ or a similarly flexible term ride’’ will involve the presence of toxic different and significant levels of metals to determine when there may be constituents, which are addressed under would likely render the recycling hazardous constituents in the product the first two parts of the factor. That is, illegitimate. The same conclusions made from recycled hazardous we believe that it is likely that there are would be reached applying the factors secondary materials that are not in the few instances where hazardous codified in 260.43. analogous products made from raw secondary materials are used in the Another example of recycling that materials would be to set an absolute process and hazardous constituents are may be legitimate although this factor standard. In its discussion of legitimacy not present at significantly higher has not been met could be when the in the October 2003 proposed rule, EPA levels, but the product made from the material has concentrations of toxics discussed possible ‘‘bright line’’ or risk- hazardous secondary material that could be considered ‘‘significantly based approaches as a way to set nevertheless exhibits the hazardous higher’’ than the analogous product, but absolute lines to define ‘‘significant’’ characteristic of toxicity when the meets industry specifications for the based on either a numerical limit or a analogous product does not. It is product that include specific risk level (68 FR 61587–61588). EPA possible, though, that the use of specifications for the hazardous recognizes that the ‘‘bright line’’ or the hazardous secondary materials as an constituent of concern. Meeting risk-based approach may provide greater ingredient could cause a product to accepted industry standards would be a clarity and predictability to the exhibit a hazardous characteristic, such strong indication that this material is regulated community, but that in both as corrosivity, that is not exhibited by being legitimately recycled. A third cases the Agency would have to analogous products. example could be in the mining and establish a line for what is acceptable The Agency has determined that it is mineral processing industry. In many and the line may either be somewhat appropriate for this factor to be mineral processing operations, the very arbitrary or it may exclude recycling considered in legitimacy determinations nature of an operation results in practices that, if carefully considered, under the final exclusions and in the hazardous constituents concentrating in should be considered legitimate. Based non-waste determinations in this action, on the comments received on those but thinks that there may be situations 11 Letter. Elizabeth Cotsworth, Director Office of approaches, we are convinced that they in which the factor is not met but the Solid Waste, to Amy Blankenbiller, American would not be workable. recycling would still be considered Foundry Society, March 28, 2001. http:// On the other hand, a case-by-case yosemite.epa.gov/osw/rcra.nsf/ legitimate. An example of this kind of 0c994248c239947e85256d090071175f/ analysis of a recycling process can take situation that has been addressed by the 4C9A2EEE6E5F859B85256AC5004FC1C2/$file/ into consideration the relevant Agency under the current regulatory 14534.pdf principles and facts for that activity,

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leading to a determination of rule, we cannot provide examples for economics of the recycling transaction significance based on the facts of the how this factor might work for all may be more of an issue when activity. Because this factor must apply possible recycling situations. The hazardous secondary materials are sent to various different recycling activities, Agency stresses that the determination to a third-party recycler, but even when we believe the case-by-case approach is of legitimacy for this factor should the hazardous secondary materials are most appropriate. consider both the use and the users of recycled under the control of the EPA, therefore, is finalizing its the product in addition to the generator, the generator must still show proposed option of using the term concentration of the hazardous that the hazardous secondary materials ‘‘significant’’ in 40 CFR 260.43(c)(2)(i) constituents or the presence of a are, at a minimum, providing a useful and (ii). Evaluating the significance of hazardous characteristic, as well as contribution and producing a valuable levels of hazardous constituents in other relevant information. In addition, product. products of the recycling process may in some cases, the implementing agency Useful Economic Information involve taking into consideration may accept a risk argument from a several variables, such as the type of recycler to show that the recycling (1) The amount paid or revenue product, how it is used and by whom, activity meets this factor. If the recycler generated by the recycler for recycling whether or not the elevated levels of can show that despite elevated hazardous secondary materials is one hazardous constituents compromise the concentrations of hazardous example of how economic information efficacy of the product, the availability constituents, such constituents pose can help support a legitimacy of the hazardous constituents to the little or no risk to human health or the determination. We have three primary environment, and others. For example, environment, the implementing agency illustrations to exemplify this. First, the if a hazardous secondary material has may consider that as evidence that the basic economic flows can suggest been reclaimed and made into a product elevated concentrations are not whether the recycling operation will that will be used by children, and that significant. How consideration of process inputs, including hazardous product contains hazardous constituents economics applies to legitimacy. secondary materials, and produce that are not in analogous products, that Consideration of economics has long products over a reasonable period of product will likely need to be closely been a part of the Agency’s concept of time, recognizing that there will be lean scrutinized. On the other hand, low legitimacy, as is evident in the and slow times. A general accounting of levels of a hazardous constituent in a Lowrance Memo and earlier preamble the major costs, revenues, and economic product from that same reclamation text (50 FR 638, January 4, 1985 and 53 flows for a recycling operation over a operation that is used as an ingredient FR 522, January 8, 1988; see also reasonable period of time can provide in an industrial process or for another American Petroleum Institute v. EPA information for considering whether industrial application may not be (‘‘API II’’), 216 F.3d 50, 57–58 (DC Cir. recycling is likely to continue at a significant and must be evaluated in the 2000)). This final rule does not codify reasonable rate, compared to the rate at context of the product’s use. specific regulatory language on which inputs are received, or whether it EPA provided several additional economics as part of the legitimacy is likely that significant amounts of examples in implementing this factor in provision, but EPA offers further hazardous secondary materials would the October 2003 proposed rule which guidance and clarification on how be accumulated and then abandoned will be repeated here. If zinc galvanizing economics may be considered in making when the facility closes. Any bona fide metal made from hazardous secondary legitimacy determinations, which is sources of revenues would be included materials that were reclaimed contains similar to the preamble discussion in in this consideration, such as payments 500 parts per million (ppm) of lead, the March 2007 supplemental proposal. by generators to recyclers for accepting while the same zinc product made from Specifically, EPA believes that hazardous secondary materials and raw materials typically contains 475 consideration of the economics of a subsidies supporting recycling. ppm, this difference in concentration recycling activity can be used to inform However, in order to have some level of would likely not be considered and help determine whether the confidence that beneficial products are ‘‘significant’’ in the evaluation of this recycling operation is legitimate. or will be produced over a reasonable factor. If, on the other hand, the lead Positive economic factors would be a timeframe, we believe that at least some levels in the zinc product made from strong indication of legitimate recycling, portion of the revenues should be from reclaimed hazardous secondary whereas negative economic factors product sales (or savings due to avoided materials were 1,000 ppm, it may would be an indication that further purchases of products if the hazardous indicate that the product was being used evaluation of the recycling operation secondary materials are used directly by to illegally dispose of lead and that the may be warranted in assessing the the recycler). This is consistent with the activity is sham recycling, unless other legitimacy factors. factor requiring that the hazardous factors would demonstrate otherwise. Considering the economics of a secondary material must be recycled to In another example, if a ‘‘virgin’’ recycling activity can also inform make a valuable product or solvent contains no detectable amounts whether the hazardous secondary intermediate. of barium, while spent solvent that has material inputs provide a useful Two scenarios illustrate this first been reclaimed contains a minimal contribution and whether the product of example: A recycling operation that amount of barium (e.g., 1 ppm), this recycling is of value. Economic generates revenues from the sale of difference might not be considered information that may be useful could recycled products that greatly exceed significant. If, however, the barium in include (1) the amount paid or revenue the costs of the operation is an the reclaimed solvent were at much generated by the recycler for recycling indication of a process that turns the higher levels (such as 50 ppm), it may hazardous secondary materials; (2) the hazardous secondary materials into indicate discard of the barium and sham revenue generated from the sale of useful products, and is unlikely to over recycling. recycled products; (3) the future cost of accumulate them. A very different Unfortunately, because of the variety processing existing inventories of example is an operation that has, of possible recycling scenarios under hazardous secondary materials; and (4) relative to its revenues, large inventories the exclusions and in the non-waste other costs and revenues associated of unsold product and large future determinations covered by this final with the recycling operation. The liabilities in terms of stocks of

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unprocessed hazardous secondary Recognizing that such a dynamic and efficiently, rather than to maintain materials. This operation could exists can assist those making large inventories. While recyclers often potentially fail the ‘‘useful legitimacy determinations in evaluating need to acquire sufficient amounts of contribution’’ and ‘‘produces a valuable recycling operations. For example, if a hazardous secondary materials to make product or intermediate’’ legitimacy recycler is charging generators fees (or it economically feasible to recycle them, factors, and would draw closer attention receiving subsidies from elsewhere) for there should be little economic to determine whether it is engaged in taking hazardous secondary materials incentive to over-accumulate such treatment and/or abandonment in the and receives a far greater proportion of materials that make a useful guise of recycling. its revenue from acceptance of the fees contribution. Overly large Second, when the economics of a than from the sale of its products, both accumulations of input materials may recycling operation that uses hazardous the useful contribution and the valuable indicate that the hazardous secondary secondary materials to produce and sell product factors may warrant further materials are not providing a useful final products are similar to a review, unless other information would contribution or that the recycler is manufacturing operation using raw indicate that such recycling is increasing its future costs of either materials to produce and sell final legitimate. Fees and subsidies may processing or disposing of the material, products, we believe that such an indicate that the economic situation and may be faced with an unsound operation is likely to be legitimate. For allows the recycler to charge high fees, recycling operation in the future. instance, if the recycler pays for regardless of the contribution provided However, it is important to keep in hazardous secondary materials as a by the inputs, including hazardous mind that possible explanations for this manufacturer would pay for raw secondary materials. In this situation, may exist. For example, the recycler materials, the recycler sells products recyclers may also have an increased may have acquired a large stock of from the recycling process as a economic incentive to over-accumulate hazardous secondary materials because manufacturer would sell products from or overuse hazardous secondary the price was unusually low or perhaps manufacturing, and the revenues materials or to manage them less the hazardous secondary materials are generated equal or exceed costs, then carefully than one might manage more generated episodically and the recycler the hazardous secondary materials valuable inputs. Additionally, if there is has few opportunities to acquire them. appear to be valuable (i.e., the recycler little competition in the recycling (4) An analysis of costs and revenues is willing to pay for them) and appear market, and/or if acceptance fees seem specific to on-site recycling is an to make a useful contribution to a to be set largely to compete with the additional, albeit specific, example of valuable recycled product. relative costs of alternative disposal economic information to consider. However, we also recognize that the options rather than to reflect the quality When recycling is conducted under the economics of many legitimate recycling or usefulness of the input to the control of the generator, the recycler operations that utilize hazardous recycling operation, this may also may not account formally for some of secondary materials differ from the suggest a closer look at the useful the costs and savings of the operation. economics of more traditional contribution factor. Still, when deciding whether to manufacturing operations. For example, (2) A comparison of revenue from undertake or continue the recycling many recyclers are paid by generators to sales of recycled products to payments operation or to utilize alternative accept hazardous secondary materials. by generators is another example of how outside recycling or disposal options, Generators may be willing to pay economic information can help support the on-site recycler (under the control of recyclers because generators can save an evaluation of ‘‘valuable product.’’ It the generator) will evaluate the basic money if the recycling is less expensive is possible that product sales revenues economic factors as a part of doing than disposing of the hazardous could be dwarfed by the acceptance of business. One such factor could be an secondary materials in landfills or fees because markets for particular accounting of the costs of virgin incinerators. Also, some recyclers products are highly competitive or materials avoided by using hazardous receive subsidies that may be designed because high alternative disposal costs secondary materials. Similarly, sales of to develop recycling infrastructure and allow for high acceptance fees. recycled products under the control of markets or to achieve other benefits of However, relatively low sales revenues the generator that are sold to an external recycling. For instance, the recycling of could also require a review of other market may support the valuable electronic materials can be legitimate factors, such as whether product sales product criterion. even when the recycler is subsidized for prices are lower than other comparable 3. Legitimacy Policy for Other processing the material. products, products are being stockpiled Exclusions and Exemptions Third, any analysis of the economics rather than sold, or very little product of a recycling operation should is being produced relative to the amount EPA is codifying a legitimacy recognize that a recycler may be able to of inputs to the recycling operation. provision in this final rule as part of the charge generators and still be a These indicators may suggest that the final exclusions and non-waste legitimate recycling operation. Because product of the recycling process is not determinations, but stresses that EPA these hazardous secondary materials are valuable and, thus, sham recycling may retains its long-standing policy that all hazardous wastes if disposed of, be occurring. recycling of hazardous secondary typically the generators’ other (3) A consideration of the future cost materials must be legitimate. If a facility alternative management option already of processing or alternatively managing is engaged in sham recycling, this, by carries a cost that is based on the existing inventories of hazardous definition, is not real recycling and that existing market for hazardous waste secondary material inputs is another material is being discarded. The transportation, treatment, and disposal. example of how economic information legitimacy policy continues to apply to Hence, unless there is strong can inform a legitimacy determination. all hazardous secondary materials that competition in recycling markets or the When hazardous secondary materials are excluded or exempted from Subtitle hazardous secondary materials are make a significant useful contribution to C regulation because they are recycled extremely valuable, a recycler may be the recycling process, a recycler will and to recyclable hazardous wastes that able to charge generators simply because have an economic incentive to process remain subject to the hazardous waste alternative disposal options cost more. the input materials relatively quickly regulations. This policy is well-

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understood throughout the regulated and comparable fuels excluded under could not sell its product. However, the community and among the state 40 CFR 261.4(a)(16), which must meet facility continued to accept EPA implementing agencies. specific levels for hazardous Hazardous Waste K061, and, in EPA believes that the four legitimacy constituents. The conditions developed approximately seven months, the factors being codified in 40 CFR 260.43 for the recycling exclusions in § 261.4(a) facility had accepted over 60,000 tons of are substantively the same as the were found to be necessary under this hazardous waste and stored it on existing legitimacy policy. These factors material-specific rulemakings that the ground in piles up to 30 feet high, are a simplification and clarification of determined when the particular with no prospect of it being used to the policy statements in the 1989 hazardous secondary material in produce a product and, thus, Lowrance Memo and in various question is not a solid waste. When EPA legitimately recycled. While the initial Definition of Solid Waste Federal originally made the decision that these recycling of the K061 hazardous waste Register notices. materials are not solid waste, the was legitimate, when the facility failed Nonetheless, to avoid confusion Agency took into account the relevant to produce a product that was actually among the regulated community and factors about the hazardous secondary sold, the K061 could no longer be state and other implementing regulatory materials, including how the material considered legitimately recycled. agencies about the status of recycling was managed and what toxic chemicals under the existing exclusions, the were present. By limiting the codified In summary, all hazardous secondary Agency has decided not to codify the legitimacy provision to the exclusions materials recycling and hazardous waste legitimacy factors for existing and non-waste determinations in recycling, whether such recycling exclusions and, thus, states and other today’s final rule, EPA is avoiding any remains under hazardous waste implementing agencies will continue to implication that we are revisiting these regulations or is excluded from the apply the existing legitimacy policy to determinations. definition of solid waste, must be all recycling as they have in the past in However, at the same time, these legitimate. This has been our long- order to ensure that recycling is real and material-specific exclusions from the standing policy and it is well not a sham. The legitimacy provisions of definition of solid waste do not negate understood throughout the regulated the final rule are codified only for the the basic requirement that the community and the implementing state exclusions and non-waste hazardous secondary material must be regulatory agencies. In order to be clear determinations being promulgated ‘‘legitimately’’ recycled. Recycling that that the legitimacy provision codified at today. In developing the codified is not legitimate is not recycling at all, 40 CFR 260.43 under today’s final rule legitimacy language, we did not intend but rather ‘‘sham recycling’’—discard in would not affect how the current to raise questions about the status of the guise of recycling. legitimacy policy applies to recycling legitimacy determinations that underlie For example, under EPA’s historic under existing exclusions, the existing exclusions from the definition guidance, particularly questions (1) and legitimacy provision at 40 CFR 260.43 is of solid waste, or about case-specific (3) in OSWER Directive 9441.1989(19), explicitly designated as applying only to determinations that have been made by the ‘‘Lowrance Memo,’’ a facility could the exclusions and non-waste EPA or the states. Current exclusions not plausibly claim the zinc fertilizer determinations being finalized in and other prior solid waste product exclusion at 40 CFR today’s rule. determinations or variances, including 261.4(a)(21) for a hazardous secondary determinations made in letters of material that contained absolutely no or EPA also maintains that the interpretation and inspection reports, minimal levels of zinc, even if all the legitimacy provision being finalized as remain in effect. conditions of the zinc fertilizer part of the exclusions and non-waste A number of commenters raised exclusion were met. The exclusion was determinations is substantively the concerns with the application of the developed to encourage legitimate same as existing policy because we codified legitimacy factors to these recycling of zinc-containing hazardous developed the legitimacy factors in 40 existing waste-specific and industry- secondary materials, not to allow any CFR 260.43 by closely examining the specific exclusions. In particular, as we hazardous waste to be discarded to questions and sub-questions in the noted in the October 2003 proposal, purported fertilizer in the name of Lowrance Memo and in the Federal EPA has examined in depth a number recycling when the hazardous Register preambles and converting them of waste-specific and industry-specific secondary material provided no into four more direct questions. The recycling activities and has promulgated recognizable benefit to the product. following explanations show how each specific regulatory exclusions or Similarly, if a facility accepted zinc- of the four factors is derived from the provisions that address the legitimacy of containing hazardous waste, claiming to Lowrance Memo and other existing these practices in much more specific make zinc fertilizer, but failed to policy statements. terms than the general factors being produce a product that was actually finalized as part of the exclusions and sold or was otherwise valuable, such a Factor 1—The Hazardous Secondary non-waste determination process today. process would not be legitimate Material Provides a Useful Contribution One example is the regulation for zinc recycling (under question (4) of the Relevant Lowrance Memo Questions fertilizers made from recycled Lowrance Memo in the historic hazardous secondary materials. In the legitimacy guidance), even if the (1) Is the secondary material similar to zinc fertilizer regulation, among the management conditions or the an analogous raw material or product? requirements established by EPA are constituent levels in the zinc fertilizer specific numerical limits on five heavy exclusion were met. The consequences Is much more of the secondary metal contaminants and dioxins in the of the latter example are illustrated in material used as compared with the zinc fertilizer product exclusion at 40 one of the damage cases in the analogous raw material/product it CFR 261.4(a)(21). Other examples are environmental problems study. A replaces? Is only a nominal amount of shredded circuit boards excluded under facility whose primary business was it used? 40 CFR 261.4(a)(14), which must be free mixing electric arc furnace dust (K061) Is the secondary material as effective of mercury switches, mercury relays and with agricultural lime for sale as a as the raw material or product is nickel-cadmium and lithium batteries, micronutrient lost its customers and replaces?

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(3) What is the value of the secondary produced from the hazardous secondary Factor 3—Managed as a Valuable material? materials? Commodity Is it listed in industry news letters, If the type of recycling is reclamation, Relevant Lowrance Memo Questions trade journals, etc.? is the product used by the reclaimer? (5) Is the secondary material handled in Does the secondary material have The generator? Is there a batch tolling economic value comparable to the raw a manner consistent with the raw agreement? (Note that since reclaimers material/product it replaces? material that normally enters the are normally TSDFs, assuming they process? store before reclaiming, reclamation Is the secondary material stored in a Discussion facilities present fewer possibilities of similar manner as the analogous raw material (i.e., to prevent loss?) The factor addressing ‘‘useful systemic abuse). contribution’’ has been distilled from Is the reclaimed product a recognized Are adequate records regarding the recycling transactions kept? and clarifies concepts in the Agency’s commodity? existing policy for legitimate recycling. Do the companies involved have a Are there industry-recognized quality history of mismanagement of hazardous For example, the preamble to the specifications for the product? January 4, 1985, recycling regulations wastes? noted that if a hazardous secondary Discussion Discussion material is ‘‘ineffective or only marginally effective for the claimed use, Factor 2 distills several of the Although worded somewhat the activity is not recycling but questions posed by the 1989 legitimacy differently, this factor is essentially the surrogate disposal.’’ Similarly, the memo. The memo addressed the value same as the fifth question in the January 8, 1988, proposed rule of recycled products sold to third Lowrance Memo. Similarly, the 1985 discussed ‘‘how much energy or parties by posing the questions, ‘‘Is preamble asked whether recyclable material value each waste contributes to there a guaranteed market for the end hazardous secondary materials were the recycling purpose.’’ product?’’ and ‘‘Is there a contract in ‘‘handled in a manner consistent with In the 1989 Lowrance Memo, the place to purchase the ‘‘product’’ their use as raw materials or commercial issue of effectiveness was addressed by ostensibly produced from the hazardous product substitutes.’’ the following questions: ‘‘Is much more secondary materials?’’ The memo In one respect, however, Factor 3 is of the secondary material used as addressed the value of recycled less restrictive than the Lowrance compared with the analogous raw products used by the recycler or the Memo—the memo posed an additional material/product it replaces?’’; ‘‘Is only generator as process ingredients by question, ‘‘Is the secondary material a nominal amount used?’’; and ‘‘Is the posing the questions, ‘‘Is the product stored on the land?’’ This could be read secondary material as effective as the used by the (recycler)? The generator? Is as implying that storage on the land is raw material or product it replaces?’’ there a batch tolling agreement?’’ The an indication of sham recycling. Of The memo also addressed the value of ‘‘usefulness’’ of a recycled material was course, this question is just one of the the secondary material by asking, ‘‘Is more than two dozen questions from the [the secondary material] listed in addressed by posing the questions, ‘‘Is the (recycled) product a recognized Lowrance memo, that, when taken as a industry news letters, trade journals, whole, help draw the distinction commodity?’’ and ‘‘Are there industry- etc.?’’ and ‘‘Does the secondary material between legitimate recycling and sham recognized quality specifications for the have economic value comparable to the recycling. Also, the Agency is aware of product?’’ raw material that normally enters the situations where storage of raw process?’’ The language of the factors in the materials on the land is a normal part Factor 1 takes these broad concepts of legitimacy provision in the final rule of the manufacturing process. Thus, effectiveness and value and turns them reflects these concepts in a concrete Factor 3 does not identify land storage into the requirement that the hazardous manner by, for example, making it clear as a specific indicator of sham recycling. secondary material in the process must that the indicator of legitimacy is that a provide a ‘‘useful contribution’’ to the Factor 4—The Product Does Not recycling process results in a valuable Contain Significant TARs recycling process, that is, it must product or intermediate and that the actually be adding something to the product or intermediate is valuable if it Relevant Lowrance Memo Questions process into which they are being put. is ‘‘(i) sold to a third party or (ii) used The factor provides more specifics than (1) Is the secondary material similar to by the recycler or the generator as an the Memo or preamble by providing a an analogous raw material or product? list of ways that a hazardous secondary effective substitute for a commercial product or as an ingredient or Does it contain Appendix VIII material could provide that useful constituents not found in the analogous intermediate in an industrial process.’’ contribution to the process. EPA raw material/product (or at higher requested comment on other ways in The Lowrance Memo posed levels)? which a hazardous secondary material additional questions aimed at Does it exhibit hazardous might provide a useful contribution, but distinguishing recycling operations that characteristics that the analogous raw did not receive any from commenters. involve direct use or reuse of secondary material/product would not? Factor 2—The Recycling Process materials from recycling operations that Does it contain levels of recoverable Produces a Valuable Product or involve reclamation. These concepts, material similar to the analogous raw Intermediate however, are not particularly relevant to material/product? distinguishing legitimate from sham Relevant Lowrance Memo Questions recycling and are not generally used by (6) Other Relevant Factors (4) Is there a guaranteed market for the implementing agencies in legitimacy Are the toxic constituents actually end product? analyses, so we therefore did not necessary (or of sufficient use) to the Is there a contract in place to attempt to capture them in the codified product or are they just ‘‘along for the purchase the ‘‘product’’ ostensibly regulatory text. ride’’?

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Discussion secondary material handled in a manner determination for hazardous secondary The Lowrance Memo and the consistent with the raw material/ materials reclaimed in a continuous definition of solid waste preamble product it replaces?) industrial process; and (2) a determination for hazardous secondary statements from which it was developed (6) Other Relevant Factors have addressed the question of ‘‘toxics materials indistinguishable in all What are the economics of the along for the ride’’ in a slightly different relevant aspects from a product or recycling process? Does most of the way than the factor in the final rule. The intermediate. The process for applying revenue come from charging generators Lowrance Memo, for example, allows for a non-waste determination is found for managing their wastes or from the for examination of toxic constituents in at 40 CFR 260.34. sale of the product? The Agency confirms today’s process the hazardous secondary material For the reasons outlined above, EPA destined for recycling and/or in the for non-waste determinations is not believes that the legitimacy factors in intended to affect any existing exclusion recycled product. As noted above, 260.43 are equivalent to the existing Factor 4 is intended to primarily under 40 CFR 261.4. The process is also legitimacy policy that applies to all not intended to affect any variance address the question of ‘‘toxics along for recycling. the ride’’ in the products of recycling. already granted under 40 CFR 260.30 or We believe that the presence of toxic X. Non-Waste Determination Process other EPA or authorized state constituents in recyclable hazardous determination. In other words, A. What Is the Purpose of This generators or reclaimers operating under secondary materials is less relevant to Provision? assessing the legitimacy of recycling, an existing exclusion, variance, or other primarily because much if not most The purpose of the non-waste EPA, or authorized state, determination recycling (as well as manufacturing) determination process is to provide do not need to apply for a formal non- involves removing or destroying such persons with an administrative waste determination under today’s rule. harmful materials. As reflected in the procedure for receiving a formal This process also does not affect the factor, the central question is whether or determination that their hazardous authority of EPA or an authorized state not (and in what amount) hazardous secondary materials are not discarded to revisit past determinations according constituents pass through the recycling and, therefore, are not solid wastes to appropriate procedures, if they so process and become incorporated into when recycled. This process is available choose. the products of recycling. While some in addition to the solid waste exclusions B. Scope and Applicability may argue that the approach of focusing in today’s rule. Once a non-waste on toxic constituents in recycled determination has been granted, the Hazardous secondary materials products may be somewhat less hazardous secondary material is not presented for a non-waste determination restrictive than the policy it would subject to the limitations and conditions must be legitimately recycled and, replace, we believe it is a better discussed elsewhere in today’s rule therefore, must meet the legitimacy indicator of legitimate recycling. In (e.g., prohibition on speculative factors under 40 CFR 260.43 of today’s cases where a recycler would prefer to accumulation, storage standard, or, for rule. For further discussion of compare the virgin feedstock to the the transfer-based exclusion, legitimacy and the factors to be hazardous secondary material going into recordkeeping, reasonable efforts, considered, see section IX of today’s the process, the rule makes it clear that financial assurance, and export notice preamble. this would be an adequate stand-in for and consent); however, the regulatory In addition, today’s rule limits non- the comparison described in the authority may specify that a hazardous waste determinations to reclamation regulatory text. secondary material meet certain activities and does not apply to conditions and limitations as part of the recycling of ‘‘inherently waste-like’’ Lowrance Memo Questions Not Covered non-waste determination. materials (40 CFR 261.2(d)); recycling of in Factors The non-waste determination process materials that are ‘‘used in a manner A few of the questions from the is voluntary. Facilities may choose to constituting disposal,’’ or ‘‘used to Lowrance Memo are not covered by the continue to use the self-implementing produce products that are applied to or factors in the regulatory text for the portions of any applicable waste placed on the land’’ (40 CFR legitimacy provision in § 260.43. The exclusions and, for the vast majority of 261.2(c)(1)); or for ‘‘burning of materials above discussions address why EPA cases, where the regulatory status of the for energy recovery’’ or materials ‘‘used believes this is appropriate. In the case hazardous secondary material is to produce a fuel or otherwise contained of the role economics can play in a evident, self-implementation will still in fuels’’ (40 CFR 261.2(c)(2)). Today’s legitimacy determination, this preamble be the most appropriate approach. In rule does not affect how these recycling has discussed how it can inform an addition, facilities may continue to practices are regulated. overall legitimacy determination, but contact EPA or the authorized state to C. Types of Non-Waste Determinations there is no particular factor on ask for informal assistance in making economics. these types of non-waste 1. Non-Waste Determination for determinations. However, for cases Hazardous Secondary Materials Relevant Lowrance Memo Questions where there is ambiguity about whether Reclaimed in a Continuous Industrial (2) What degree of processing is a hazardous secondary material is a Process required to produce a finished product? solid waste, today’s formal process can As discussed earlier in today’s Can the secondary material be fed provide regulatory certainty for both the preamble, previous court decisions have directly into the process (i.e., direct use) facility and the implementing agency. indicated that hazardous secondary EPA is finalizing two types of non- or is reclamation (or pretreatment) waste determinations: 12 (1) A required? generator via a tolling arrangement or similar How much value does final contractual arrangement. EPA, however, did not 12 In the March 2007 supplemental proposal, EPA identify any comments that described specific types reclamation add? also proposed (but is not finalizing) a third type of of contractual arrangements that would meet the Is the secondary material stored on non-waste determination for hazardous secondary proposed criteria for this non-waste determination. the land? (a sub-question of (5) Is the materials reclaimed under the control of the See section XIX for more information.

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materials that are reclaimed in a use the hazardous secondary material in secondary material are released to the continuous industrial process are not a reasonable time frame and ensure that environment rather than reclaimed, then discarded and, therefore, not a solid it will not be abandoned. This criterion that material (or at least the portion of waste. EPA believes, in most instances, can be satisfied by a consideration of the material that is of most concern) is hazardous secondary materials past practices, market factors, the nature not in fact being ‘‘reclaimed in a reclaimed in a continuous process of the hazardous secondary material, or continuous industrial process.’’ would be excluded under today’s self- any contractual arrangements. The fourth and final criterion for this implementing exclusions. However, Abandonment of stockpiled hazardous non-waste determination includes any production processes can vary widely secondary materials is one way that other relevant factors that demonstrate from industry to industry and it is discard can occur at recycling the hazardous secondary material is not possible that the regulatory status of operations and is one of the major discarded. This catch-all criterion is certain materials may be unclear under causes of environmental problems. As intended to allow the person to provide a self-implementing exclusion indicated in the recycling studies, 69 of any case-specific information deemed (including those exclusions finalized the 208 incidents of environmental important and relevant in making the today). Thus, to determine whether damage involve abandonment of the case that the hazardous secondary individual hazardous secondary hazardous secondary materials as the material is not discarded and, therefore, materials are reclaimed in a continuous primary cause of damage. For today’s not a solid waste. industrial process, and, therefore, not a self-implementing exclusions for 2. Non-Waste Determination for solid waste, EPA has developed the hazardous secondary materials, EPA is Hazardous Secondary Materials non-waste determination process to using speculative accumulation (as Indistinguishable in All Relevant evaluate case-specific fact patterns. defined in 40 CFR 261.1(c)(8)) as the Aspects From a Product or Intermediate EPA is finalizing four criteria for method for determining when a Although the courts have indicated making the non-waste determination for hazardous secondary material is that hazardous secondary materials hazardous secondary materials discarded by abandonment. For the non- recycled within a continuous industrial reclaimed in a continuous industrial waste determination, a person does not process are not discarded and, therefore, process. The first is the extent that the need to demonstrate that the hazardous are not solid wastes, they have also said management of the hazardous secondary secondary material meets the that hazardous secondary materials material is part of the continuous speculative accumulation limits per 40 destined for recycling in another production process and is not waste CFR 261.1(c)(8), but he must provide industry are not automatically treatment. At one end of the spectrum, sufficient information about the discarded. However, there may be some if the hazardous secondary material is hazardous secondary material and the handled in a manner identical to virgin situations where the regulatory status of process to demonstrate that the a certain material is unclear under a feedstock, then it would appear to be hazardous secondary material will in fully integrated into the production self-implementing exclusion and thus fact be reclaimed in a reasonable time may benefit from a non-waste process. At the other end of the frame and will not be abandoned. EPA spectrum, hazardous secondary determination that evaluates case- is not explicitly defining ‘‘reasonable specific fact patterns. EPA is finalizing materials that are indisputably time frame’’ because such time frames discarded prior to being reclaimed are five criteria for making a non-waste could vary according to the hazardous determination for hazardous secondary not a part of the continuous primary secondary material and industry production process, (‘‘AMC II’’), 907 F. materials indistinguishable in all involved and, therefore, determining 2d 1179 (DC Cir. 1990) (listed wastes relevant aspects from a product or this time frame should be made on a managed in units that are part of intermediate. case-specific basis. However, a person wastewater treatment units are The first criterion for this non-waste may still choose to use the speculative discarded materials (and solid wastes), determination is consideration of likely accumulation time frame as a default. especially where it is not clear that the markets for the hazardous secondary industry actually reuses the materials). The third criterion for this non-waste material (e.g., based on the current For cases that lie within the spectrum, determination is whether the hazardous positive value of the hazardous persons applying for a non-waste constituents in the hazardous secondary secondary material, stability of demand, determination need to provide sufficient material are reclaimed rather than and any contractual arrangements). This information about the production released to the air, land, or water at evaluation of market participation is a process to demonstrate that the significantly higher concentrations from key element for determining whether management of the hazardous secondary either a statistical or from a health and companies view these hazardous material is an integral part of the environmental risk perspective than secondary materials like products rather production process and is not waste would otherwise be released by the than negatively-valued wastes. EPA’s treatment. It is important to note that production process. To the extent that market forces study on how market this non-waste determination is not the hazardous constituents are an incentives affect the management of necessarily limited to cases under the extension of the original hazardous hazardous secondary materials indicates control of the generator. For example, secondary material, their release to the that both high value and stable markets hazardous secondary materials that are environment is an indicator of discard. are strong incentives to refrain from hard piped from one facility to another The Agency recognizes that normal over-accumulating hazardous secondary facility that is under separate control production processes may also result in materials, thus maximizing the would appear to be fully integrated into a certain level of releases and, in likelihood that the hazardous secondary the production process and may evaluating this criteria, would not deny materials will be reclaimed and not therefore be eligible for this non-waste a non-waste determination if the abandoned. determination, provided the other increase in releases is not significantly The second criterion for this non- criteria are met. different from either a statistical or risk waste determination is the chemical and The second criterion examined under perspective. However, when physical identity of the hazardous this non-waste determination is the unacceptably high levels of the secondary material and whether it is capacity of the production process to hazardous constituents in the hazardous comparable to commercial products or

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intermediates. This ‘‘identity principle’’ environment is a possible indicator of change occurs that affects how a is a second key factor that the Court in discard. The Agency recognizes that hazardous secondary material meets the Safe Foods found useful in determining normal production processes also result relevant criteria contained in 40 CFR whether a material is indistinguishable in a certain level of releases and, in 260.34, persons must re-apply to the from a product. It is important to note evaluating this criteria, would not deny Administrator for a formal that the identity of a material can be a non-waste determination if the determination that the hazardous comparable to a product without being increase in releases is not significant secondary material continues to meet identical. However, to qualify for a non- from either a statistical or a health and the relevant criteria and is not discarded waste determination, any differences environmental risk perspective. and not a solid waste. between the hazardous secondary However, when unacceptably high As discussed in more detail in section material in question and commercial levels of the hazardous constituents in XX of today’s preamble, under section products or intermediates should not be the hazardous secondary material are 3006 of RCRA, EPA would authorize significant from either a statistical or released to the environment rather than states to administer the non-waste from a health and environmental risk reclaimed, then that material (or at least determinations as part of their base perspective. the portion of the hazardous secondary RCRA program. Because states are not The third criterion for making this material that is of most concern) is not required to implement federal non-waste determination is the capacity being handled as a commercial product requirements that are less stringent or of the market to use the hazardous or intermediate. narrower in scope than the current secondary material in a reasonable time As with the non-waste determination requirements, authorized states are not frame and ensure that it will not be for hazardous secondary materials required to adopt the non-waste abandoned. Abandonment of stockpiled reclaimed in a continuous industrial determination process. Ordinarily this hazardous secondary materials is one process, the fifth and final criterion for provision could not go into effect in an way that discard can occur at recycling this non-waste determination includes authorized state until the state chooses operations and is one of the major any other relevant factors that to adopt it. However, because the non- causes of environmental problems (a demonstrate the hazardous secondary waste determination process is a key finding from the recycling studies material is not discarded. This catch-all formalization of determinations that discussed earlier). For today’s self- criterion is intended to allow the person states may already perform, states that implementing exclusions for hazardous to provide any case-specific information have not formally adopted this non- secondary materials, EPA is using it deems important and relevant in waste determination process may speculative accumulation (as defined in making the case that its hazardous participate if the following conditions 40 CFR 261.1(c)(8)) as the method for secondary material is not discarded. are met: (1) The state determines that determining when a hazardous the hazardous secondary material meets D. Non-Waste Determination Process secondary material is discarded by the criteria in either paragraph (b) or (c) abandonment. For the non-waste The process for the non-waste of 40 CFR 260.34; (2) the state requests determination, a person does not need determination is the same as that for the EPA to review its determination; and (3) to demonstrate that the hazardous solid waste variances found in 40 CFR EPA approves the state determination. secondary material meets the 260.30. In order to obtain a non-waste In addition, of course, states may speculative accumulation limits per 40 determination, a facility that manages continue to make regulatory CFR 261.1(c)(8), but he must provide hazardous secondary materials that determinations under their authorized sufficient information about the would otherwise be regulated under 40 state regulations, as they do now. hazardous secondary material and the CFR part 261 as either a solid waste or E. Enforcement market demand for it to demonstrate an excluded waste must apply to the that the hazardous secondary material Administrator or the authorized state If a regulatory authority determines will in fact be reclaimed in a reasonable per the procedures described in 40 CFR that a hazardous secondary material is time frame and will not be abandoned. 260.33, which EPA is amending today to not a solid waste through the non-waste EPA is not explicitly defining apply to non-waste determinations. The determination process, the hazardous ‘‘reasonable time frame’’ because such application must address the relevant secondary material is not subject to the time frames could vary according to the criteria discussed in detail above. The RCRA Subtitle C hazardous waste hazardous secondary material and Administrator will evaluate the requirements. However, as part of this industry involved, and therefore submission and issue a draft notice process, the applicant has an obligation determining this time frame should be tentatively granting or denying the to submit, to the best of his ability, made on a case-specific basis. However, application. Notification of this complete and accurate information. If a person may still choose to use the tentative decision will be provided by the information in the application is speculative accumulation time frame as newspaper advertisement or radio found to be incomplete or inaccurate a default. broadcast in the locality where the and, as a result, the hazardous The fourth criterion for this non-waste facility is located. The Administrator secondary material does not meet the determination is whether the hazardous will accept comment on the tentative criteria for a non-waste determination, constituents in the hazardous secondary decision for 30 days, and may also hold then the material may be subject to the materials are reclaimed rather than a public hearing. The Administrator will RCRA Subtitle C requirements and EPA released to the air, land, or water at issue a final decision after receipt of or the authorized state could choose to significantly higher concentrations from comments and after the hearing (if bring an enforcement action under either a statistical or from a health and held). If the application is denied, the RCRA section 3008(a). Moreover, if the environmental risk perspective than facility may still pursue a solid waste person submitting the non-waste would otherwise be released by the variance or exclusion (for example, one determination is found to have production process. The Agency of the solid waste variances under 40 knowingly submitted false information, believes that to the extent that the CFR 260.30 or solid waste exclusions then he also may be subject to criminal hazardous constituents are an extension under 40 CFR 261.4). penalties under RCRA section 3008(d). of the original hazardous secondary After a formal non-waste Once a non-waste determination has material, their release to the determination has been granted, if a been granted, the applicant is obligated

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to ensure the hazardous secondary entity to choose which exclusion it is loop exclusion would be eligible for the material continues to meet the criteria of subject to in those cases where more new exclusions that do not require the non-waste determination, including than one exclusion could apply and, if closed-loop operations. The third any conditions specified therein by the so, whether that entity should be comment, from both reclaimers of spent regulatory authority. If a change occurs required to document the choice made. lead-acid batteries and spent lead-acid that affects how a hazardous secondary One state supported allowing a battery manufacturers requested that material meets the relevant criteria and regulated entity to choose if that entity EPA clarify that spent lead-acid battery (if applicable) any conditions as documents its choice and the few recycling continue to be regulated under specified by the regulatory authority comments that were submitted by 40 CFR 266.80 or as a universal waste and the applicant fails to re-apply to the industry on this matter, generally, at 40 CFR part 273. The mining industry Administrator for a formal preferred to have the option to choose requested that EPA clarify that the determination, the hazardous secondary which exclusion they would be subject proposed exclusions would have ‘‘no material may be determined to be a to. EPA has determined, however, that impact’’ on 40 CFR 266.70 (precious solid and hazardous waste and subject the conditions that were developed for metals exclusion) and 40 CFR to the RCRA Subtitle C hazardous waste the existing exclusions were found to be 266.100(d) and (g) (conditional requirements. necessary under case-specific exclusions from boiler and industrial rulemakings that determined when the furnace (BIF) regulations for ‘‘smelting, XI. Effect on Other Exclusions hazardous secondary material in melting, and refining furnaces’’ and The final rule will not supersede any question is not a solid waste. For precious metals recovery furnaces). of the current exclusions or other prior example, broken cathode ray tubes must A. Solid Waste Exclusions Found in 40 solid waste determinations or variances, be transported in closed containers (40 CFR 261.4(a) including determinations made in CFR 261.4(a)(22)) and shredded circuit letters of interpretation and inspection boards need to be free of mercury Under today’s final rule, if a reports. If a hazardous secondary switches and relays (40 CFR hazardous secondary material is subject material has been determined not to be 261.4(a)(14)). to material-specific management a solid waste, for whatever reason, such Therefore, the final rule requires that conditions under 40 CFR 261.4(a) when a determination will remain in effect, hazardous secondary materials reclaimed, such a material is not eligible unless the regulatory agency decides to specifically subject to the existing for the final rule exclusions. For most of revisit the regulatory determination exclusions must continue to meet the the exclusions in 40 CFR 261.4(a), this under their current authority. In existing conditions or requirements in provision will have no practical effect addition, if a hazardous secondary order to be excluded from the definition because the current exclusion either (1) material has been excluded from of solid waste. Moreover, industry and has no conditions, (2) has conditions hazardous waste regulations—for the states are familiar with these that overlap with those of the final rule example, under the Bevill exclusion in requirements and EPA believes that exclusions (i.e., no speculative 40 CFR 261.4(b)(7)—the regulatory changing them would only lead to accumulation, or land disposal),13 (3) status of that material will not be confusion in the regulated community. does not involve reclamation, or (4) affected by today’s rule. In addition, the current exclusions involves hazardous secondary materials In the October 2003 proposal, EPA would apply to facilities not currently burned for energy recovery or used in a proposed a number of specific operating under terms of an existing manner constituting disposal. These ‘‘conforming changes’’ to existing exclusion. They would also be subject to include the exclusions in 40 CFR exclusions (68 FR 61578–61580). The the conditions for that exclusion if they 261.4(a)(1)–(7), 40 CFR 261.4(a)(10)– purpose of these conforming changes decide to recycle the particular (13), 40 CFR 261.4(a)(15)–(16), 40 CFR was to simplify and clarify the excluded wastes in the future. 261.4(a)(18), and 40 CFR 261.4(a)(20)– regulations. EPA did not intend to make In the March 2007 supplemental (21). any substantive changes as to how proposal, we also requested comment The exclusions in 40 CFR 261.4(a) currently excluded materials would on whether any specific regulatory that are for a specific material and need to be managed or regulated. exclusion would need revision in order include conditions that are more However, comments to the proposed to avoid confusion or contradictions. specific than those included for the changes were overwhelming in favor of With a few exceptions, public exclusions being finalized today are retaining the existing exclusions. These comments did not discuss this issue in those for (1) spent wood preserving existing exclusions are familiar to both depth. Only three states commented on solutions (40 CFR 261.4(a)(9)), (2) the states and the regulated community, this issue. One supported the shredded circuit boards (40 CFR and making wholesale adjustments, it requirement that currently-excluded 261.4(a)(14)), (3) mineral processing appears, would have had unintended facilities must stay under their specific spent materials (40 CFR 261.4(a)(17)), consequences in many cases. exclusions and two requested (4) spent caustic solutions from Thus, in the March 2007 clarifications on how such a petroleum refining liquid treating supplemental proposal, we proposed to requirement would be implemented. processes (40 CFR 261.4(a)(19)), and (5) retain the existing exclusions exactly as Industry, in a few cases, had specific cathode ray tubes (40 CFR 261.4(a)(22)). written (72 FR 14205). In addition, comments on the provisions already in For each of these cases, EPA has made recycling of such hazardous secondary place. a material-specific determination of materials at new facilities, or at existing One commenter asked that EPA facilities that are not currently operating clarify that wood preserving waste be 13 ‘‘Disposal’’ is defined in 40 CFR 260.10 as ‘‘the allowed to be reclaimed off-site under discharge, deposit, injection, dumping, spilling under the terms of an existing leaking or placing of any solid waste or hazardous exclusion, would also be subject to the the new exclusion. This would be an waste into or on any land or water so that such solid existing applicable regulatory expansion of the existing exclusion, waste or hazardous waste or any constituent thereof exclusions, rather than the proposed which is limited to on-site reuse. may enter the environment or be emitted into the Another comment was in regards to air or discharged into any waters, including ground exclusions. waters.’’ Thus a hazardous secondary material that We did request comment, however, whether hazardous secondary materials is land disposed would presumably not meet the on the option of allowing a regulated currently regulated under the closed- ‘‘contained’’ standard.

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when such a material is not discarded EPA is planning to propose—in a B. Spent Lead-Acid Battery Recycling and therefore not a solid waste and such separate rulemaking from today’s final and Precious Metals Reclamation a determination is more appropriately rule—to amend its hazardous waste EPA also agrees that spent lead-acid applied to these materials than the regulations to conditionally exclude battery recycling should continue to be general conditions of today’s final rule. from the definition of solid waste spent regulated under 40 CFR 266.80 or 40 The conditions of the material-specific hydrotreating and hydrorefining CFR part 273. This is because these exclusion essentially help define when catalysts generated in the petroleum regulations are actually hazardous waste that material is legitimately recycled refining industry when these hazardous regulations and are not solid waste and not discarded. secondary materials are reclaimed (see exclusions. Continuing the regulation of However, in the case of the spent entry in the Introduction to the Fall spent lead-acid battery (SLAB) recycling wood preserving exclusion (40 CFR 2007 Regulatory Plan, 72 FR 69940, as hazardous waste is necessary due to 261.4(a)(9)), EPA agrees with the December 10, 2007). Spent the unique nature of these batteries. comments that this exclusion is limited hydrotreating and hydrorefining Also, as noted by the commenters, the to on-site recycling. Thus, if managed catalysts generated in the petroleum current battery recycling regulations are on-site, these materials would need to refining industry are routinely recycled comply with the existing conditions to working well. More than 95% of SLABs by regenerating the catalyst so that it are currently recycled and generators of be eligible for an exclusion from the may be used again as a catalyst. When definition of solid waste. However, SLABs are exempt from Superfund regeneration is no longer possible, these liability under the Superfund Recycling since the current exclusion does not spent catalysts are either treated and apply to hazardous secondary materials Equity Act (SREA), provided that they disposed of as listed hazardous wastes meet the requirements of the exemption, sent off-site, and the substance of the or sent to RCRA-permitted reclamation exclusion (i.e., drip pad requirements) including the requirement to take facilities, where metals, such as ‘‘reasonable care’’ to determine that the applies to a management method not vanadium, molybdenum, cobalt, and applicable to off-site transfers, the new accepting facility is in compliance with nickel are reclaimed from the spent the substantive environmental exclusion in today’s rule would apply to catalysts. hazardous secondary materials that are regulations. EPA originally added spent Because SREA was based on the sent off-site for reclamation. Thus, if hydrotreating and hydrorefining sent off-site for legitimate reclamation, current SLAB hazardous waste catalysts (waste codes K171 and K172) regulations under RCRA, changing the these materials could be eligible for to the list of RCRA hazardous wastes today’s exclusion if the restrictions and/ regulation of SLABs could have found in 40 CFR 261.31 on the basis of or the conditions are met. unintended consequences. For example, toxicity (i.e., these materials were Finally, the closed-loop exclusion 40 the current regulations prohibit battery- CFR 261.4(a)(8) is not specific to a shown to pose unacceptable risk to breaking without a permit because such material, but rather identifies a human health and the environment battery-breaking operations have been recycling process. EPA agrees with when mismanaged) (63 FR 42110, high-risk activities. In addition, as noted comments stating that hazardous August 6, 1998). In addition, EPA based in the environmental problems study, secondary materials recycled via the its decision to list these materials as 12% of our damage cases were from closed-loop exclusion at 40 CFR hazardous due to the fact that these battery-breaking operations. Moreover, 261.4(a)(8) could be recycled under a spent catalysts can at times exhibit the high value of the lead plates and low different process and still be eligible for pyrophoric or self-heating properties. entry cost for a battery-breaking facility today’s exclusions. The closed-loop It is largely because of these provides a strong market incentive for exclusion is based on the premise that pyrophoric properties that EPA is facilities to recycle without investing in hazardous secondary materials considering a separate proposal to adequate management systems for the reclaimed in a continuous process conditionally exempt these catalysts discarded battery acid and casings. within an industry are not discarded from hazardous waste regulation. This In addition, because the RCRA- and, therefore, are not solid wastes future proposal will allow the agency to regulated ‘‘generator’’ of a SLAB is often subject to EPA’s RCRA jurisdiction (See consider and seek comment on specific the garage or junkyard that removed the AMC I.) In fact, closed loop recycling is conditions to address the pyrophoric battery from the automobile (rather than a subset of materials reclaimed in a properties of these hazardous secondary the original owner who discarded the continuous industrial process, since materials, particularly during battery), the generator-controlled materials may be reclaimed in a transportation and storage prior to exclusion could be read to apply to continuous process outside of a closed reclamation, in order for the Agency to these operations. Therefore, the loop system. EPA did not make a determine that they are not being reasonable efforts and financial finding that any particular hazardous discarded. As a result of this separate assurance conditions that are a part of secondary material must be reclaimed in effort, these spent catalysts will not be the transfer-based exclusion would not a continuous process. The Agency only eligible for today’s exclusions. Once apply, despite the fact that their determined that closed-loop recycling, EPA has proposed a conditional activities would resemble waste in general, should be excluded. Today’s exclusion specifically for these spent management rather than production. exclusions, however, allow any catalysts, and after consideration of Because, in these cases, the SLABs have hazardous secondary materials to be public comments, EPA will either effectively already been discarded by excluded if reclamation meets the finalize a conditional exclusion specific the original owners before they enter the restrictions and/or conditions set forth to these spent catalysts or may decide RCRA hazardous waste regulatory in the rules. Thus, a facility currently that the conditions being promulgated system, EPA will continue to regulate engaged in closed-loop recycling could in today’s final rule are fully adequate SLABs as solid and hazardous waste change their processes and still be for the management of these spent under 40 CFR 266.80 or 40 CFR part excluded, as long as all applicable catalysts when recycled, and therefore 273. restrictions and/or conditions are met. would remove the restriction preventing EPA also agrees with comments that In addition to the solid waste these spent catalysts from being eligible the exclusions should have no impact exclusions currently in 40 CFR 261.4(a), for today’s exclusions. on 40 CFR 266.70 (precious metals

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exclusion) and 40 CFR 266.100(d) and other persons (for example, when 1 permit modifications, with prior (g) (conditional exclusions from the mercury-containing equipment is Agency approval. The Agency received boiler and industrial furnace (BIF) collected through a special collection few comments on this issue, and is regulations for ‘‘smelting, melting, and program), it is not the hazardous proceeding in this final rule with the refining furnaces’’ and precious metals secondary material generator. Therefore, proposed approach. Thus, this final rule recovery furnaces). Because these a universal waste handler who collects modifies 40 CFR 270.42 by adding an exclusions are exclusions from certain hazardous secondary materials from entry to Appendix 1 that classifies hazardous waste regulations, not solid other persons would not be eligible for permit modifications to remove units waste exclusions, as a general matter, the generator-controlled exclusion, even that are no longer regulated as a result EPA believes that facilities should have if it would be considered a ‘‘generator’’ of this rule as Class 1 with prior Agency a choice of whether they manage their for purposes of the Universal Waste approval. materials as hazardous waste under regulations. As was discussed in the preamble of these exclusions or seek an exclusion the March 26, 2007, supplemental from the definition of solid waste XII. Effect on Permitted and Interim proposal, under the Class 1 with prior through today’s final rule. Status Facilities Agency approval approach, the owner However, part of what 40 CFR A. Permitted Facilities or operator must submit notification of 266.100(d) accomplishes is to define the permit modification to the Facilities that currently have RCRA when an operation involving burning is implementing agency, along with permits or interim status and manage solely a metals recovery operation rather documentation demonstrating that the hazardous wastes that are excluded than a burning for energy recovery or operations at the unit meet the under today’s final rule will be affected destruction operation, neither of which conditions of the exclusion and that the is eligible for today’s exclusions. This in a number of ways, depending on the unit is used solely to manage excluded distinction is an important one to make, situation at the facility. At some hazardous secondary materials. In and EPA did not intend to revise how facilities, some of the hazardous waste addition, the owner or operator must such material recovery operations were management units will be converted comply with the requirements of 40 CFR identified, nor did EPA ask for comment solely to manage excluded hazardous 270.42(a)(ii) for public notification. on such a revision. secondary materials, and other units Under § 270.42(a)(ii), the permit Thus, for the purpose of defining the may continue to manage hazardous modification will not become effective type of burning for metals recovery to be wastes. At other facilities, all of the until the owner or operator receives allowed under these exclusions, EPA hazardous waste management units will written approval by the implementing will reference the requirements in 40 be converted to manage wastes excluded agency. The implementing agency will CFR part 266 subpart H that defines under today’s final rule. In still other approve the permit modification so long when a ‘‘smelting, melting, and cases, individual units may manage as the owner or operator has complied refining’’ furnace is solely engaged in both excluded materials and hazardous with the procedural requirements of metals recovery, but will not require the wastes. In all cases, the owner or § 270.42(a) and has demonstrated that other conditions that are not related to operator of the facility must comply the operations meet the conditions of distinguishing legitimate materials with the applicable conditions and the exclusion, and that the unit does not recovery from burning. Therefore, under limitations of the exclusion (including manage non-excluded hazardous today’s final rule, hazardous secondary the containment of the hazardous wastes. materials burned for metals recovery secondary material in units operating One commenter disagreed with the would still be required to meet the under the exclusion, recycling Agency’s approach, and believed that minimum metals and maximum toxic legitimately, and the prohibition against the Class 2 permit modification organic metals content specified in 40 speculative accumulation of excluded procedures were necessary to provide CFR part 266 (as part of the definition hazardous secondary materials) to the public an opportunity to comment of this activity), and would continue to maintain the exclusion. on the removal of the unit from the be exempt from BIF permits, but they Permitted facilities that continue to permit. The Agency disagrees with this would not be subject to hazardous waste manage hazardous wastes in addition to commenter. The regulations that govern manifests and storage permits, as long as managing hazardous secondary permit modification classify the conditions of the exclusions materials excluded under this final rule modifications to the permit term, to promulgated in today’s rule are met. must continue to maintain their Part B allow for earlier permit termination, as permits. Individual units may be Class 1 with prior Agency approval. The C. Other Recycling Exclusions converted solely to manage excluded Agency believes that removing permit For other hazardous secondary hazardous secondary materials; conditions for units that are no longer materials currently eligible for however, the permit requirements regulated is, in effect, allowing earlier management under other exclusions or applicable to the newly excluded units permit termination at those units. Thus, alternative regulatory structures that do will remain in effect until they are the Agency believes that Class 1 with not include an exclusion from the removed from the permit. Owners and prior Agency approval is the definition of solid waste (such as the operators that seek to remove permit appropriate designation for these permit universal waste regulations in 40 CFR conditions applicable to units that are modifications. part 273), the facility would have the no longer hazardous waste management In the preamble of the March 26, choice of either continuing to manage units must submit a permit modification 2007, supplemental proposal, the the hazardous secondary material as a request to the implementing agency. In Agency discussed the issue of whether hazardous waste under the existing the March 26, 2007, supplemental closure requirements at formerly regulations or under today’s exclusions proposed rule, the Agency requested regulated units would be triggered when from the definition of solid waste. comment on requiring owners and this rule becomes effective and the In addition, it should be noted that, operators seeking to modify their hazardous secondary materials they are for the purposes of § 261.2(a)(2)(ii) and permits to remove units that are no receiving is no longer hazardous waste. § 261.4(a)(2)(23), when a facility collects longer regulated to follow the This issue was also discussed in the hazardous secondary materials from procedures of 40 CFR 270.42(a) for Class October 2003 proposal, in which EPA

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expressed the view that requiring Appendix 1 that classifies permit provisions of the permit. In these cases, closure of units in these situations modifications to terminate operating maintenance of the permit would ensure would serve little environmental permits by modifying the permit term, that facility-wide corrective action will purpose, since after closure the unit at facilities at which all units are be addressed. Thus, in these cases, the would be immediately reopened and excluded as a result of this final rule, as permit would not be terminated by used to store the same (now excluded) Class 1 with prior Agency approval. modifying the permit term, but would hazardous secondary material (68 FR Under this approach, owners and be modified to remove the provisions 61580–61581). operators seeking to terminate their that applied to the now-excluded In today’s final rule, a permitted unit operating permits must submit a permit hazardous secondary material. The that is converted solely to manage modification request to the overseeing facility’s permit would, thereafter, only excluded hazardous secondary materials agency following the procedures of address corrective action. will not be subject to the 40 CFR part § 270.42(a) for Class 1 modifications In other cases, however, EPA or an 264 closure requirements, since, with prior Agency approval, as authorized state may have available an typically, it will be managing the same described above.15 alternative federal or state enforcement material, with the only difference being To support a request for permit mechanism or other federal or state that the material is now excluded from termination by modifying the permit cleanup authority, through which it regulation as a hazardous waste. term, the owner or operator must could choose to address the facility’s However, we expect that any funds in demonstrate that the operations meet cleanup obligations, rather than the closure or post-closure financial the conditions of the exclusion, and that continue to pursue corrective action assurance mechanisms will be the facility does not manage non- under a permit. In these cases, where converted to provide financial assurance excluded hazardous wastes. the alternate authority would ensure under today’s exclusion, assuming the In addition, as was explained in the that facility-wide corrective action will facility is operating under the transfer- October 28, 2003, proposal (see 68 FR be addressed, maintenance of the permit based exclusion. In addition, as 61580) and again in the March 26, 2007, would not be necessary. described in sections VII.D. and VIII.D supplemental proposal (72 FR 14206), B. Interim Status Facilities of this preamble, at the end of the the obligation of 40 CFR 264.101 to A facility that is operating under operating life of these units, all owners address facility-wide corrective action at interim status will be affected by this and operators (i.e., of units operating permitted facilities, is not affected by final rule in much the same way as is under either exclusion promulgated in this final rule, and remains in effect.16 a permitted facility and the issue of this final rule) must manage any Therefore, an owner or operator of a hazardous secondary materials that are corrective action will be addressed in a facility that manages only hazardous similar manner. At an interim status not recycled, and remove or secondary materials excluded under this decontaminate all hazardous residues facility that converts to managing only final rule, who seeks to terminate the hazardous secondary materials that and contaminated containment system facility’s permit by modifying the components, equipment structures, and become excluded under this final rule, permit term, must demonstrate as part the part 265 interim status standards soils. of the permit modification request that A permitted facility that converts to that applied to the hazardous waste the corrective action obligations at the manage only hazardous secondary management units at the facility, as well facility have been addressed or where materials excluded under this final rule, as the general facility standards in part corrective action obligations remain, and is, therefore, no longer a hazardous 265, will no longer apply. At the same that continuation of the permit is not waste management facility, will no time, the Agency’s authority to address necessary to assure that they will be longer be required to maintain a corrective action at the facility is not addressed. The Agency’s corrective hazardous waste operating permit affected by this final rule, and the owner action authority at such facilities is not (although, as discussed below, may still or operator retains responsibility for affected by this rulemaking and the be subject to corrective action).14 unaddressed corrective action Agency thus retains its authority to However, permits issued to these obligations at the facility. address corrective action at such facilities remain in effect until they are facilities using all authorities applicable C. Releases From Excluded Units at terminated. prior to this rulemaking. Interim Status or Permitted Facilities In the March 2007 supplemental At some facilities, corrective action proposal, the Agency also requested Commenters on the October 28, 2003, obligations will likely continue to be comment on requiring owners and proposal stated that one of the main addressed through the corrective action operators seeking to terminate their purposes of the RCRA Subtitle C closure operating permits (as opposed to just requirements is to identify and 15 The commenter discussed above who disagreed remediate any releases originating from removing units from their permit) by with the Agency’s approach for permit modifying the permit term to follow the modifications to remove units that are no longer the units. In response, the Agency noted procedures of 40 CFR 270.42(a) for Class regulated, also believed that Class 2 permit in the March 26, 2007, supplemental 1 permit modifications, with prior modification procedures were necessary to provide proposal that releases from these units the public an opportunity to comment on the owner are discarded solid wastes and, Agency approval. The Agency received or operator’s request to terminate a permit by few comments on this issue, and is modifying the permit term. The Agency disagrees therefore, potentially hazardous wastes, proceeding in this final rule with the with this commenter. As was discussed above, the and agreed with the commenter’s proposed approach. Thus, this final rule regulations governing permit modifications classify concern that such releases should be changes to the expiration date to allow earlier addressed. The Agency suggested in that modifies § 270.42 by adding an entry to permit termination as Class 1 with prior Agency approval. preamble that the specific Subtitle C 14 Again, the owner/operator of the facility must 16 Owners and operators of permitted and interim closure requirements may not be the comply with the applicable conditions and status facilities with corrective action obligations most appropriate means of addressing limitations of the exclusion (including the should refer to the Agency’s February 25, 2003, cleanup of releases from these units, if containment of the hazardous secondary material in guidance entitled ‘‘Final Guidance on Completion the unit, legitimate recycling, and the prohibition of Corrective Action Activities at RCRA Facilities,’’ any have occurred. Rather, the Agency against speculative accumulation) to maintain the (see 68 FR 8757) for a detailed discussion of suggested that a better approach to exclusion. corrective action completion. address historical releases from these

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units, as well as any future releases, applicable prior to this final rule. Not preamble, hazardous waste management would be as part of corrective action for only will corrective action authority be units that convert to managing only all releases at the facility—an approach available at such a unit, but the closure hazardous secondary materials that are that the Agency believed would achieve requirements of 40 CFR part 264 or 265 excluded under this final rule will no the same environmental results and will once again apply at the unit as well, longer be subject to the 40 CFR part 264 would provide the owner or operator and releases from that unit may be or part 265 closure requirements. the option of integrating the cleanup addressed through either the corrective Further, while reclaimers who receive more closely into the broader facility action or the closure process. hazardous secondary materials that have response. The second scenario will arise in been excluded under the new 40 CFR Some commenters on the March 26, situations where releases occur at an 261.4(a)(24) are required to meet 2007, supplemental proposal objected to excluded unit but, based on the site- financial assurance requirements,18 this approach of addressing releases specific factors, the Agency does not persons who recycle hazardous from units that previously managed consider the release to be significant secondary materials under the hazardous wastes and, as a result of and, therefore, the release does not exclusions for materials recycled under today’s rule, would subsequently only cause the unit to lose its exclusion. the control of the generator receive hazardous secondary materials Failure on the part of the owner or (§ 261.2(a)(2)(ii) and § 261.4(a)(23)) are excluded from Subtitle C control. These operator to respond to such releases not required to meet the financial commenters requested that EPA could be considered an act of illegal assurance requirements. expressly recognize that units storing or disposal. The Agency generally would Under the requirements of 40 CFR managing hazardous secondary address these situations by issuing an parts 264 and 265 subpart G, owners materials excluded as a result of this enforcement action under RCRA section and operators of units now eligible for rule would no longer be regulated as 3008(a), or other applicable authorities, the exclusion of § 261.2(a)(2)(ii) and solid waste management units and are to compel cleanup actions and/or § 261.4(a)(23) would have been required not subject to RCRA’s corrective action impose penalties. It should be noted to remove and decontaminate all requirements. EPA disagrees with this that this approach is consistent with the contaminated structures, equipment, approach, as we have discussed approach taken by the Agency in a July and soils (see § 264.114 and § 265.114). previously in this section and as 2002 final rule, in which the Agency The financial assurance provided under discussed below, and continues to excluded hazardous secondary materials 40 CFR parts 264 and part 265 subpart believe that the best approach to used to make zinc fertilizers from the H was designed to assure that funds addressing releases from conditionally definition of solid waste (see ‘‘Zinc would be available for these activities. excluded units is, generally, to address Fertilizers Made from Recycled In the case of generator controlled units, them as part of corrective action for all Hazardous Secondary Materials,’’ 67 FR where financial assurance is no longer releases at the facility. 48400, July 24, 2002). required, previous releases from the The Agency discussed the issue of its The third scenario will arise in unit, which would have been addressed corrective action authority to address situations where releases from the unit, during closure and for which financial non-SWMU-related releases at RCRA of either the now excluded hazardous assurance was obtained will, as a result treatment, storage, or disposal facilities secondary material and/or other of this rule, now be addressed through in the May 1, 1996, Advance Notice of hazardous or solid wastes previously corrective action authority. The Proposed rulemaking (see 61 FR 19442– managed in the unit, were not addressed question raised by the Agency in the 3). There, the Agency stated, ‘‘[g]iven prior to the unit obtaining its exclusion. March 26, 2007, supplemental proposal the legislative history of RCRA section At permitted and interim status was whether funds obtained for closure 3004(u), which emphasizes that RCRA facilities, the status of those releases is should, therefore, be directed to facilities should be adequately cleaned unaffected by this rulemaking, and the corrective action activities at the unit. up, in part, to prevent the creation of Agency retains its authority to address Commenters on the March 26, 2007, new Superfund sites, EPA believes that them under all authorities applicable to supplemental proposal generally agreed corrective action authorities can be used them prior to this final rule, including that funds obtained for closure at units to address all unacceptable risks to sections 3004(u) and (v), and section excluded under § 261.2(a)(2)(ii) and human health and the environment 3008(h). § 261.4(a)(23) (under the control of the from RCRA facilities. In the permitting generator) should be directed to address context, remediation of non-SWMU D. Financial Assurance Obtained for releases from the unit. The Agency related releases may be required under Closure at Newly-Excluded Units agrees with these commenters, and the ‘‘omnibus’’ authority * * * In other The requirements in 40 CFR parts 264 encourages regulators to work with contexts, orders under RCRA sections and 265 subpart H, which applied at owners and operators that seek to 3008(h) or 7003 may require remedial these units prior to their exclusion modify their permits to remove action to address releases regardless of under this final rule, provide for the conditions applicable to these units that whether a SWMU is present.’’ release of financial assurance upon The Agency envisions three scenarios will operate under the exclusion of certification by the facility owner or that might apply to units from which § 261.2(a)(2)(ii) and § 261.4(a)(23), to operator that closure has been releases have occurred. The first will verify that there are no unaddressed completed in accordance with the arise in situations where an owner or releases from the unit. In situations approved closure plan, and after the operator fails to comply with the where corrective action is necessary at Agency has verified that certification applicable conditions and limitations of the unit, the Agency encourages (see 40 CFR 264.143(i) and the exclusion, and the unit regulators to work with owners and 265.143(h)).17 consequently loses its exemption. In operators to assure that the releases Under the approach discussed in these situations, the unit itself will once from the unit are addressed promptly. section VII.D. and VIII.D. of this again become a hazardous waste 18 See section VIII.C.4 of this preamble for a management unit, and the unit, as well 17 Similar provisions at 40 CFR 264.145(i) and complete discussion of financial assurance as a as materials in the unit, will become 265.145(h) provide for release of financial assurance condition of the exclusion for this group of subject to all requirements that were for post-closure care. facilities.

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XIII. Effect on CERCLA hazardous secondary materials excluded EPA’s Response: Legal Authority under today’s rule. A primary purpose of today’s final EPA disagrees with comments that rule is to encourage the safe, beneficial XV. General Comments on the Proposed state that we have exceeded our reclamation of hazardous secondary Revisions to the Definition of Solid authority by the exclusions being materials. In 1999, Congress enacted the Waste finalized today. While EPA clearly has Superfund Recycling Equity Act the authority to regulate hazardous (SREA), explicitly defining those EPA received hundreds of comments secondary materials that are reclaimed hazardous substance recycling activities on the October 2003 proposal and the under Subtitle C of RCRA when discard that may be exempted from liability March 2007 supplemental proposal, is involved, the Agency also believes under the Comprehensive most of which were quite detailed and (and the courts have generally Environmental Response, Compensation raised multiple issues. Below is an confirmed) that when hazardous and Liability Act (CERCLA) (CERCLA overview of some of the major secondary materials are reclaimed and section 127). Today’s final rule does not comments on general aspects of the such recycling operations do not change the universe of recycling proposals and a summary of EPA’s involve discard, the hazardous activities that could be exempted from responses to those comments. For a secondary materials involved are not CERCLA liability pursuant to CERCLA complete discussion of all the section 127. Today’s final rule only solid wastes under RCRA. EPA also has comments and EPA’s responses to those changes the definition of solid waste for the authority to determine which types comments, please see Revisions to the purposes of the RCRA Subtitle C of recycling do not involve discard and, Definition of Solid Waste Final Rule requirements. The final rule also does therefore, which types of hazardous Response to Comment Document found not limit or otherwise affect EPA’s secondary materials are not solid in the docket for today’s rulemaking. ability to pursue potentially responsible wastes. As EPA noted in the March 2007 persons under section 107 of CERCLA A. EPA’s Legal Authority To Determine supplemental proposal, ‘‘[u]nder the for releases or threatened releases of Whether a Material Is a Solid Waste RCRA Subtitle C definition of solid hazardous substances. waste, many existing hazardous Comments: Legal Authority XIV. Effect on Imports and Exports secondary materials are not solid wastes and, thus, not subject to RCRA’s ‘cradle- The exclusion for hazardous EPA received many comments from to-grave’ management system if they are secondary materials generated and environmental groups and the waste reclaimed under the control of the treatment and recycling industry recycled. The basic idea behind this generator is limited to recycling regarding EPA’s authority to define construct is that recycling of such performed in the United States or its when recyclable hazardous secondary materials often closely resembles territories. However, the exclusion for materials are solid wastes and how EPA normal industrial manufacturing, rather hazardous secondary materials exported used this authority in the proposed than waste management’’ (72 FR 14197). for reclamation and the non-waste rulemaking. Some commenters argued Existing exclusions, found in 40 CFR determinations included in today’s final that EPA has no authority under the 261.4(a), provide a long historical rule do not place any geographic RCRA statute to broadly exclude precedent for EPA’s authority to exclude restrictions on movements of such hazardous secondary materials from the reclaimed materials from the definition hazardous secondary materials, definition of solid waste. These of solid waste. EPA refers these provided they meet the conditions of commenters asserted that Congress commenters to the discussion of case the exclusion or, if stipulated, intended for hazardous secondary law, above, and asserts that this rule conditions of the non-waste materials to be classified as solid wastes follows valid precedent in the DC determination. It is therefore possible even when they are recycled. The Circuit, including the court’s opinion in that in some cases excluded hazardous commenters argued that the proposed Safe Food. secondary materials could be generated exclusions are contrary to the plain B. Adequacy of Conditions and in the United States or its territories and statutory language of RCRA and that subsequently exported for reclamation Restrictions Used To Determine EPA may not lawfully exclude pollution Whether a Material Is a Solid Waste to a facility in a foreign country. It is control sludges and materials resulting also possible that hazardous secondary from industrial, commercial, mining, Comments: Adequacy of Conditions materials could be generated in a foreign and agricultural operations, according to country and imported for reclamation in accepted principles of statutory Other commenters did not dispute the United States. Under today’s EPA’s authority to exclude hazardous exclusion for hazardous secondary interpretation. Although the commenters acknowledged that EPA has secondary materials from the definition materials exported for reclamation, of solid waste, but instead argued that hazardous secondary materials are only promulgated such exclusions in the past, and that one such exclusion was before EPA can lawfully claim that excluded from the definition of solid excluded materials are not discarded, waste in the U.S. and, thus, may be recently upheld in court in Safe Food and Fertilizer v. EPA, they stated that the Agency would need to strengthen considered solid and hazardous wastes the conditions to protect human health in the foreign country under that they believed that the DC Circuit erred in Safe Food. The commenters argue and the environment. For example, one country’s laws and regulations. If this is commenter believed that all legitimacy the case, the U.S. facility that exports or that, in the fertilizer rule upheld in Safe criteria should be mandatory, that imports hazardous secondary materials Food, EPA considered impermissible performance standards, such as will also need to comply with any factors (e.g., market participation, applicable laws and regulatory management practices, and chemical secondary containment are needed for requirements of the foreign country. For identity) in defining which materials are materials stored in tanks and containers, further discussion, see section VIII.C.5. not discarded under RCRA, and that the and that EPA should require engineered of today’s preamble regarding specific Agency has done so again in the current liner systems and monitoring for export and import conditions for rulemaking effort. materials stored in land-based units.

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EPA’s Response: Adequacy of discarded, see section V of this Toxics Release Inventory (TRI) under Conditions preamble, as well as sections VII–IX and EPCRA (40 CFR part 372)). EPA disagrees that the restrictions we sections XVI–XVIII. Support for the While not exhaustive, this list are requiring for the under the control Agency’s determination regarding provides examples of regulatory of the generator exclusions or the which materials are not discarded is programs designed to protect human conditions and restrictions we are also found throughout the rulemaking health and the environment developed requiring for the transfer-based record in this proceeding. under other statutory authorities exclusion are inadequate. Each of the EPA also disagrees that specifying alongside of RCRA. For more restrictions and/or conditions is further engineering conditions, such as information on these regulatory specifically linked to defining when the secondary containment, liners, and leak programs, please see ‘‘Memorandum: detection systems, is needed to hazardous secondary materials are not Requirements that other Regulatory determine which hazardous secondary discarded and to ensuring that the Programs would place on Generators, materials are not being discarded. The regulatory authority has the information Reclaimers and Transporters of restrictions EPA has established and the needed to oversee the exclusion. Hazardous Secondary Materials’’ conditions that EPA is finalizing today Specifically, for hazardous secondary located in the docket for this address a variety of hazardous materials reclaimed under the control of rulemaking. secondary materials and reclamation the generator, the fact that the generator operations that are linked to defining C. EPA’s Authority To Regulate maintains control and liability for the the act of discard, rather than specifying Recycling hazardous secondary materials, either a particular technology that may not be Comments: EPA’s Authority by managing them on-site, within the appropriate in some cases. same company, or under a specific Furthermore, hazardous secondary EPA also received comments from the tolling contract, is itself an indication materials excluded under today’s rule hazardous waste generating industry that the materials are not discarded. The may remain subject (or become subject) disputing EPA’s authority to promulgate prohibition on speculative to requirements under other statutory today’s rule. Unlike the environmental accumulation (as defined in 261.1(c)(8)), programs. For example, hazardous groups’ and waste treatment and addresses both the situation in which a secondary material generators, recycling industry’s comments, which large percentage of the hazardous transporters, intermediate facilities and argued that EPA has no authority to secondary material is accumulated over reclaimers may be subject to regulations deregulate hazardous secondary the year without being recycled and the developed under: materials recycling, many of the situation where there is no feasible • The Occupational Safety and Health generator industry comments asserted means of recycling the hazardous Act of 1970, which requires hazard that EPA has no authority to regulate secondary material, regardless of communication programs, labeling, such recycling, even to prohibit volume. Finally, the requirement that material safety data sheets (MSDS) and speculative accumulation or require that the hazardous secondary materials must employee information and training (29 the hazardous secondary materials be be contained in the unit recognizes the CFR part 1910). The Occupational contained. reality that hazardous secondary Safety and Health Administration While most such commenters materials that are released to the (OSHA) regulations also require applauded EPA’s decision in the March environment are discarded. emergency response planning and 2007 supplemental proposal to For hazardous secondary materials training under their Emergency explicitly link the proposed exclusions transferred to another party for Response Program to Hazardous to the concept of defining when reclamation, the fact that the generator Substance Releases (29 CFR 1910.120); hazardous secondary materials are not is required to make reasonable efforts to • The Hazardous Materials discarded, many of these comments ensure that its hazardous secondary Transportation Act of 1975 and the argued that EPA has over-reached its materials are properly and legitimately subsequent Hazardous Materials statutory authority by imposing reclaimed demonstrates that the Transportation Uniform Safety Act of restrictions or conditions that the generator is not simply disposing of the 1990, which requires hazardous commenters argued have no material, but instead is taking secondary materials meeting DOT’s relationship to discard. responsibility that the hazardous defining criteria for hazard classes and Some commenters asserted that secondary materials will be recycled. In divisions to comply with hazard limiting the exclusions for hazardous addition, by maintaining a record of identification, shipping papers, labeling secondary materials reclaimed under each shipment and a confirmation of and placarding, incident reporting and the control of the generator and receipt, the generator demonstrates that security plans (49 CFR part 107 and imposing conditions on the exclusion it continues to take responsibility for parts 171–180); for hazardous secondary materials knowing the ultimate disposition of its • The Comprehensive Environmental transferred to a third party for hazardous secondary materials. Response, Compensation and Liability reclamation, EPA has misread the intent Furthermore, by obtaining financial Act (CERCLA), Emergency Planning and of Congress. These comments cite assurance, the reclamation facility Community Right-to-Know Act (EPCRA) previous court cases, noting the demonstrates that it has also taken on and the Superfund Amendments and ‘‘analysis of the statute reveals clear the responsibility to ensure that the Reauthorization Act (SARA) of 1986 Congressional intent to extend EPA’s hazardous secondary materials will not which, combined, require notification of authority only to materials that are truly be abandoned in the event that hazardous substance releases above a discarded, disposed of, thrown away, or circumstances make it impossible for reportable quantity, emergency planning abandoned’’ (AMC I, 824 F2d. at 1190). the facility to reclaim the hazardous and, if applicable, MSDS and inventory They go on to argue that materials being secondary materials. For further reporting (40 CFR 302.6, 40 CFR parts recycled do not fall into one of these discussion of how these and other 355 and 370). Hazardous secondary enumerated activities. restrictions and/or conditions of the material generators and reclaimers Specifically, many of the comments exclusions are linked to defining when meeting defined criteria are also subject cite the ABR decision (which in turn hazardous secondary materials are not to toxic chemical release reporting (i.e., cites earlier court decisions), where the

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court noted that EPA’s authority is industry are not solid wastes, results. As opposed to manufacturing, ‘‘limited to materials that are ‘discarded’ commenters have failed to demonstrate where the cost of inputs, either raw by virtue of being disposed of, how hazardous secondary materials that materials or intermediates, is greater abandoned, or thrown away’’ and that are not contained meet that description. than zero and revenue is from the sale ‘‘[s]econdary materials destined for By ‘‘contained,’’ EPA means not of the output, recycling conducted by recycling are obviously not of that sort. released to the environment. It is a self- commercial hazardous secondary Rather than throwing them away, the evident fact that hazardous secondary materials recyclers involves generating producer saves them, rather than materials released to the environment revenue from receipt of the hazardous abandoning them, the producer reuses (e.g., causing soil and groundwater secondary materials, as well as from the them’’ (ABR 208 F.3d at 1051). ‘‘To say contamination) are not ‘‘destined for sale of the output. Recyclers of that when something is saved it is recycling’’ or ‘‘recycled in a continuous hazardous secondary materials in this thrown away is an extraordinary process’’; thus, they are part of the waste situation can have a short-term distortion of the English language’’ (Id. management problem. Moreover, as incentive to accept more hazardous at 1053). The commenters assert that, by discussed above in section VII.C, to the secondary materials than they can limiting the exclusion to hazardous extent that significant releases to the economically or safely recycle, resulting secondary materials intended for environment from a storage unit have in the hazardous secondary materials recycling that are ‘‘contained’’ in the occurred and remain unaddressed, it is eventually being discarded. unit, EPA is illegally imposing reasonable to conclude that the material The financial assurance condition for conditions on a material that has not remaining in the unit is also actively the transfer-based exclusion being been discarded. being discarded. It is important to note finalized today is directly linked to this Other comments take issue with that the hazardous secondary materials situation. By obtaining financial EPA’s decision to impose conditions for that remain in the unit are not solid assurance, the owner or operator of the the transfer-based exclusion. These wastes, unless the releases from the reclamation facility is making a direct comments criticize EPA’s rationale that, storage unit indicate that these materials demonstration that it will not abandon in part, bases the conditions on the fact are not being managed as valuable the hazardous secondary material. Of that ‘‘subsequent activities are more commodities and are, in fact, discarded. the 208 damage cases, 69 (or 33%) were likely to involve discard, given that the For examples of releases from a primarily caused by abandonment of the generator has relinquished control of the hazardous secondary materials storage hazardous secondary material by the hazardous secondary material’’ (72 FR unit that indicate that the hazardous recycler. None of 69 facilities whose 14178). One commenter specifically secondary material in the unit is damages were primarily caused by challenged the proposed financial discarded and examples of releases that abandonment had financial assurance. assurance requirement, claiming that do not indicate discard, see section Under the transfer-based exclusion, the condition does not define the VII.C. of this preamble. financial assurance is the means by absence of discard and would EPA also disagrees with comments which the recycler demonstrates an effectively impose a waste management that, under the transfer-based exclusion, requirement upon a non-waste. EPA cannot consider the fact that the investment in the future of the recycled generator has relinquished control of the materials; even if the market changes in EPA’s Response: EPA’s Authority hazardous secondary material (along such a way that the recycler can no EPA disagrees with the comments that with other factors that indicate discard) longer process the hazardous secondary Congress did not intend to give EPA the in determining what conditions are materials, by obtaining financial authority to regulate hazardous waste needed for this exclusion. EPA’s assurance, it has made certain that the recycling. As EPA noted in both the authority to regulate such transfers is hazardous secondary materials will not October 2003 proposal and the March clear: as the Court noted in Safe Food, be abandoned and therefore not 2007 supplemental proposal, the RCRA ‘‘materials destined for future recycling discarded. EPA therefore disagrees with statute and the legislative history by another industry may be considered the comment that the financial suggest that Congress expected EPA to ‘discarded’; the statutory definition does assurance condition is not related to regulate as solid and hazardous wastes not preclude application of RCRA to discard of the material. certain materials that are destined for such materials if they can reasonably be Moreover, financial assurance also recycling (see 45 FR 33091, citing considered part of the waste disposal addresses the correlation of the financial numerous sections of the statute and problem’’ (350 F.3d at 1268). health of a reclamation facility with the U.S. Brewers’ Association v. EPA, 600 F. EPA’s record for today’s rulemaking absence of discard of hazardous 2d 974 (DC Cir. 1979); 48 FR 14502–04, demonstrates that third-party recycling secondary materials. According to the April 3, 1983; and 50 FR 616–618). of hazardous secondary materials has successful recycling study, an Moreover, the case law discussed above been and continues to be part of the examination of a company’s finances is clearly shows instances where EPA waste disposal problem, and, without an important part of many of the properly regulated the recycling of solid the conditions being finalized today, environmental audits generators and hazardous wastes. these hazardous secondary materials currently use to determine that their EPA also disagrees that requiring the would be solid wastes. Of the 208 hazardous secondary materials will not hazardous secondary materials to be damage cases in EPA’s study of be discarded. In addition, the ‘‘contained’’ contradicts the court’s environmental problems associated with environmental problems study showed finding in ABR that EPA does not have post-RCRA, post CERCLA hazardous that bankruptcies or other types of the authority to define when hazardous secondary materials recycling, 94% business failures were associated with secondary materials are not discarded. appeared to take place at commercial 138 (66%) of the damage cases, and the By limiting the exclusion to hazardous off-site facilities. Moreover, EPA’s study market forces study identified a low net secondary materials that are contained, of how market forces impact recycling worth of a firm as a strong indication of EPA is defining ‘‘discard’’ for this demonstrates that these damages are a sub-optimal outcome of recycling (i.e., material. While it is true that the court consistent with our understanding of over-accumulation of hazardous has said that materials recycled in a how the business model for commercial secondary materials, resulting in continuous process by the generating recycling can lead to sub-optimal releases to the environment and

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abandonment of hazardous secondary incentives for the proper management of EPA’s Response: Scope and materials). recyclable hazardous secondary Methodology In the March 2007 supplemental materials and recycling residuals. EPA acknowledged in the preamble to proposal, EPA proposed to require that In response to the March 2007 the March 2007 supplemental proposal reclamation facilities obtain financial supplemental proposal and to the study, that we did not search every possible assurance to ensure that the reclamation made public in the rulemaking docket information source for damage cases for facility owner/operators who would in conjunction with that proposal, EPA the environmental problems study. For operate under the terms of this example, we did not systematically exclusion are financially sound (72 FR received comments on the study from a variety of commenters. In general, the survey all state environmental agencies 14191), and many commenters for relevant cases, nor did we search supported this condition and EPA’s comments pertain to the scope and methodology of the study and how the paper files in EPA Regional offices. We rationale. EPA continues to believe that did solicit damage cases from regional the findings in the recycling studies study reflects on today’s exclusions and restrictions and/or conditions of the representatives and we solicited indicate a correlation between financial additional cases through the public exclusions. health of a reclaimer and the likelihood comment process. We recognize that he will not discard the hazardous Comments: Scope and Methodology there are likely to be additional cases secondary materials. that we did not identify. However, we D. Comments on Recycling Studies With respect to the scope and have no reason to believe that additional methodology of the study, a few cases would substantially change the 1. Environmental Problems Study commenters agreed with excluding overall picture. In fact, information EPA completed An Assessment of historical damage cases from the study submitted to EPA does not indicate that Environmental Problems Associated and stated that recycling operations EPA has failed to find a representative with Recycling of Hazardous Secondary have in fact improved since RCRA was sample of environmental damage caused Materials in order to identify and enacted. A few commenters provided by recycling activities. characterize environmental problems several types of recycling-related EPA maintains that historical attributed to hazardous secondary environmental problems familiar to recycling-related damage cases are materials recycling activities and to state agencies and a few commenters much less relevant and instructive than provide the stakeholders with a clearer suggested the review of several cases which have occurred within the picture of the recycling industry in the additional damage cases. A few current regulatory and liability United States. commenters argued that inclusion of landscape, and several commenters The environmental problems study their facility in the study, or the shared our belief. We value state (or study) was conducted in response to inclusion of their industry commenters’ general discussion of public comments received on the representatives’ facilities, was environmental problems encountered at October 2003 proposal and to guide recycling operations and note that any unfounded due to one or more of the EPA’s deliberations on how to proceed facility taking advantage of today’s following reasons: Hazardous secondary with the March 2007 supplemental exclusion will need to comply with all proposal. In the public comments to the materials were exempt from RCRA applicable protective restrictions and October 2003 proposal, a number of when environmental problems conditions. commenters expressed concern that occurred; environmental problems stem We also appreciate the suggestion of deregulating hazardous secondary from historical or pre-RCRA activities; additional damage cases to review for materials that are reclaimed in the numerous facilities in the study shut the study. Based on our analysis of these manner described in that proposal could down during the 1980s in response to cases, we have added one new damage result in mismanagement of the the creation of regulatory disincentives; case site to the study and updated two hazardous secondary materials, and environmental problems were addressed existing damage case profiles with more thus could create new cases of pursuant to CERCLA; and problematic information about environmental environmental damage requiring activities were clearly a result of non- problems (see Addendum: An remedial action under federal or state compliance. Also, a commenter Assessment of Environmental Problems authorities. Some of these commenters suggested that one damage case profiled Associated With Recycling of Hazardous illustrated their concern by citing in the study ‘‘is not a good example of Secondary Materials). We also specific examples of environmental a contaminated site caused by determined that three damage cases damage related to hazardous secondary recycling.’’ In support of their comment, identified in the public comments materials recycling. A number of other the commenter cited a Record of already are included in the 2007 study commenters expressed the view that the Decision (ROD) which stated that the and additional information was not great majority of the damage cases cited site’s former foundry operations, which revealed to supplement the profiles; by commenters had occurred before existed pre-RCRA, caused soil and determined that one damage case RCRA, CERCLA, or other environmental groundwater contamination. identified in the public comments was regulatory programs were established in previously reviewed and the damage the early 1980s and, therefore, that the One commenter suggested EPA was deemed unrelated to recycling and cases represent ‘‘historical’’ recycling- overlooked potential sources of that no additional information was related environmental damage and are information for the study, including provided to change this conclusion; and not particularly relevant or instructive television commentary, media reports, determined that two sites identified in for revising the RCRA Subtitle C books, and other reports (specifically the public comments had damage definition of solid waste. These one state report), and one commenter unrelated to recycling. We concluded commenters further argued that the suggested that EPA ‘‘may have missed that the new damage cases and the environmental programs—most notably reviewing relevant files’’ by not supplemental information added to RCRA’s hazardous waste regulations analyzing state and regional paper files. existing cases are consistent with the and the liability provisions of Another commenter expressed concern damage cases previously cited in the CERCLA—have created strong that the study was not peer reviewed. study; therefore, the additional facts do

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not substantially change our study was not limited to hazardous feedback, one commenter stressed that understanding of the hazardous secondary materials recycling the majority of all damage cases cited in secondary materials recycling damage operations, and shows that accidents the study are located off-site from the cases. can and do occur in all types of facilities that generated the hazardous EPA maintains that the damage cases manufacturing facilities. secondary materials. Commenters also captured in the environmental problems Despite the fact that we did not used the study’s findings (namely study fall within the study’s scope and, conduct an exhaustive review of all damage type, damage cause, cost of as such, are relevant for guiding the possible sources of damage case cleanup) to support their opposition to development of today’s rulemaking. As information, we believe that the the transfer-based exclusion. In we discussed in the study, we are restrictions and conditions of today’s particular, commenters stressed the interested in whether damage may be exclusions are sufficient to ensure safe financial impact to states and more or less prevalent for hazardous recycling activities. For facilities communities if additional secondary materials that are explicitly operating under the transfer-based environmental clean-ups were to result exempted or excluded from RCRA exclusion, sudden accidental liability from facilities taking advantage of the regulatory controls and we are less coverage for bodily injury and property exclusions. interested in historical or pre-RCRA damage to third parties is required for On the other hand, EPA also received cases (defined in the study as before all units, and non-sudden accidental responses from several commenters 1982). We also indicated in the study liability coverage is required for land- stating that the environmental problems that we are interested in ‘‘whether or based units (see section VIII.C.4. for a study supports the proposed conditions not the recycler * * * went out of more detailed discussion of liability of the transfer-based exclusion for business’’ and which ‘‘government coverage). We also note that facilities reclaimers and generators. While several program is responsible for overseeing may be subject to other regulations that of these commenters opposed the cleanup of the site,’’ and clearly we ensure facility safety, such as the OSHA codification of the transfer-based are interested in acts of non-compliance requirements and state and local exclusion, other commenters supported that resulted in environmental damage. requirements (see ‘‘Memorandum: it as long as there were requirements to These points of interest, among others Requirements that other Regulatory ensure protection of public health and cited on pages 4–5 of the study, are Programs Would Place on Generators, the environment. For example, informative for the purpose of this Reclaimers and Transporters of commenters responded that rulemaking and are within the scope of Hazardous Secondary Materials’’ made mismanagement of hazardous secondary the study. Consequently, we disagree available in the docket for today’s final materials, residuals, and recycled with industry and association rulemaking). While EPA has not done a products or intermediates in the damage commenters who argued that certain definitive study of other regulatory cases clearly represented a need to have damage cases did not warrant inclusion requirements, we are reasonably requirements for protective management in the Environmental Problems Study. comfortable with the fact that the and storage, as well as a requirement for We acknowledge that the particular available information indicates safe residuals management. damage case referenced by a commenter oversight by other regulatory agencies Additionally, commenters believed in as ‘‘not a good example’’ for the study would significantly mitigate potential the importance of a financial assurance does in fact exhibit environmental damage from the non-discarded requirement to protect against the damage which can be partially materials. damage noted in the study related to attributed to foundry operations pre- With respect to the comment bankruptcy and the abandonment of 1982. However, as indicated in the regarding peer review, we believe that hazardous secondary materials and damage case profile in Appendix II of while the study was not peer reviewed, residuals. A commenter also responded the study, the damage case was the scope and methodology are sound, that generators should assess whether included in the study due to the as evidenced by the small number of the above protections exist at following factors, which do not include comments received on this issue. reclamation facilities in order to damage associated with pre-1982 Additionally, peer review was not minimize their future liability. operations: Abandonment of drums of warranted by EPA peer-review Additionally, in response to the study, spent catalyst, bankruptcy, and business standards because the study is not a EPA received one comment suggesting closure. As a result, we maintain that scientific and/or technical work that each of the following safeguards be this damage case is within the scope of product. Rather, the study is an analysis added to the exclusions: Tracking the study. of existing and publicly available materials, restriction on land-based While we acknowledge that we did information compiled to provide a storage, and 90-day storage provisions not review all possible sources of representative view of hazardous in 40 CFR part 262 for all generators, information for our study and generally secondary materials recycling. including those who recycle on-site. relied on readily available material, we did in fact rely on media reports for Comments: Study’s Relation to Today’s EPA’s Response: Study’s Relation to information and we collaborated with Actions Today’s Actions regional representatives who are very EPA received a number of comments While EPA agrees that the study knowledgeable about the damage cases alleging that the study does not support reflects the risk and problems involved and who assisted us in fact checking today’s exclusions. Several commenters with recycling hazardous secondary and suggesting damage cases. With strongly believe that the study reflected materials, we disagree with those respect to a commenter’s suggestion that that recycling hazardous secondary commenters who stated that the study we review the ‘‘Final Report of the materials is a high risk activity and thus does not support today’s exclusions Waste and Hazardous Materials should remain fully regulated. A few because of the perceived risk posed by Division, Fire & Explosions Task Force,’’ commenters wrote that the study does the exclusions. Instead, we agree that produced by Michigan DEQ, we regret not support the transfer-based exclusion the environmental problems highlighted that the state has not yet made the and these commenters collectively in the study demonstrate the need to report publicly available. However, we predicted that the exclusion will create promulgate restrictions and conditions note that the scope of the draft Michigan future damage cases. To bolster their for the exclusions (e.g., requirements for

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financial assurance, reasonable efforts, are primary mineral processing facilities recycling behavior. Several other shipping documentation, hazardous and one is a secondary mineral commenters suggested that other secondary materials management, processing facility. Improper disposal of incentives affecting the behavior of legitimate recycling, and speculative residuals and improper management of recyclers include economic concerns, accumulation). EPA maintains that the recyclables are the most frequently the RCRA hazardous waste regulations, restrictions and conditions finalized observed primary damage cause at such and environmental and safety with today’s exclusions, and discussed facilities. The primary environmental regulations under other statutes. more in depth in sections VII.C. and damage type resulting from the above VIII.C., will address the problems activities are soil contamination, Comments: Scope of the Successful identified in the study and will limit the wildlife exposure, and groundwater and Recycling Study exclusions to materials that EPA has surface water contamination. EPA received several critical determined are not discarded. We also We have concluded that the comments in response to the study on agree with those commenters who additional damage cases do not responsible recycling behaviors. One suggest that generators should assess substantially change the overall picture comment that appeared more than once whether reclamation facilities of environmental problems caused by was that EPA’s study focused too much adequately manage hazardous hazardous secondary materials recycling on large companies and that many of the secondary materials in order to mitigate activities at facilities, including mining practices a large company undertakes the risk of future environmental and mineral processing facilities. We with a full environmental staff would problems. Consequently, we are also disagree with the commenters’ not be possible for a smaller company finalizing the reasonable efforts assertion that restrictions on land-based and, therefore, that the practices are not condition for the transfer-based storage units are not supported by the widespread among smaller companies. exclusion. environmental problems study. Cumulative damage causes from the EPA’s Response: Scope of the Comments: Restrictions on Mining and study support the restrictions imposed Successful Recycling Study Mineral Processing by 40 CFR 261.4(a)(23) and the EPA agrees with the focus on larger A few commenters responded that the identification of additional mining and companies in the study and discusses it study does not support controls on land- mineral processing damage cases in the methodology section of the based storage of hazardous secondary corroborates EPA’s finding that no report’s introduction. Because many of materials at mining and mineral industry should be exempt from the the contacts for interviews for the report processing facilities. They cited that restrictions and/or conditions due to the came out of the public comments on the only 1 of the 208 damage cases is limited number of damage case profiles October 2003 proposed rule, much of associated with a primary mineral exhibited in the environmental the information in the report came from processing facility. Thus, the problems study. companies large enough to have staff commenters argued that the small responsible for submitting public 2. Good Recycling Practices Study number of environmental problems comments to federal proposed stemming from recycling at mining and EPA completed An Assessment of rulemakings. However, where possible mineral processing facilities does not Good Current Practices for Recycling of and appropriate, the study does warrant the proposed regulatory Hazardous Secondary Materials to examine the options for small oversight of the industry. provide a more complete picture of the businesses, as well as what small hazardous secondary materials recycling businesses are doing that approximates EPA’s Response: Restrictions on Mining industry in the United States. The study and Mineral Processing the audit programs and other practices examines what practices responsible of larger companies. The Agency did EPA acknowledges that the generators and recyclers currently use to find that many small companies are environmental problems study included ensure that their hazardous secondary concerned with questions of liability in one damage case from primary mineral materials are recycled responsibly. their hazardous secondary materials processing and two damage cases from One purpose of the study was to recycling and often either belong to secondary mineral processing. We note provide the Agency with another angle auditing consortiums or already do that whether an industry has a single from which to view the hazardous smaller audits by mail and telephone if damage case represented in the study or secondary materials recycling industry. they cannot afford to set up visits to the numerous damage cases, all industries EPA has long heard from representatives recycling facilities to examine them in are treated equally within the final of that industry that management of person. rulemaking for hazardous secondary hazardous secondary materials has materials generated, reclaimed, and changed and improved since RCRA was Comments: Purpose of the Successful managed in land-based units (40 CFR implemented in the early 1980s. In Recycling Study 261.4(a)(23)). addition, by indicating what controls Another comment made by several Moreover, further review of publicly responsible recyclers are using, the commenters expressed a concern that available data revealed four additional study was intended to help EPA circular logic was in place in the March damage case profiles from primary and determine which kinds of regulatory 2007 supplemental proposal. The secondary mineral processing facilities, requirements would be most commenters stated that it was regulation which corroborates EPA’s view that the appropriate and effective as conditions under RCRA that led to the growth of findings from the environmental of the exclusions. the good practices being described and problems study apply across industries, Some of the comments on the stated that EPA was using these including the mining and mineral successful recycling study supported practices as justification for taking away processing industries (see Addendum: the conclusions in the study. the very regulations that led to them. An Assessment of Environmental Particularly, these commenters stated Problems Associated with Recycling of that audits are typical, that they usually EPA’s Response: Purpose of the Hazardous Secondary Materials to cover the subjects described in the Successful Recycling Study review new damage case profiles). Of study, and that RCRA and CERCLA The Agency believes that those the four additional damage cases, three liability are drivers of responsible making this comment misunderstood

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the relationship between the successful One commenter stated that as a result greenhouse gas emissions. In particular, recycling study and the March 2007 of the market forces study, EPA should commenters argued that hazardous supplemental proposal. The proposal also include a requirement that the waste that is indistinguishable from a did not state that this background generator evaluate the financial health commercial fuel should be not a solid material was a justification for why the of the recycler before shipping a waste. Other commenters supported Agency proposed the conditional hazardous secondary material to the keeping the exclusion focused on exclusion for hazardous secondary recycler. While EPA agrees that reclamation and not including use materials not under the control of the evaluating the financial health of a constituting disposal and burning for generator. Rather, the Agency looked to company can be useful and informative, energy recovery. Commenters noted that the study to determine what the current and encourages companies to do so, it these types of activities, in some cases, responsible practices are and to use that is not an activity that lends itself to an are akin to discard, that precedents exist information to inform decisions on what objective standard that would be for regulation of these hazardous restrictions and/or conditions would be appropriate for regulation. Instead, EPA secondary materials, and that recycling appropriate for the transfer-based is requiring recyclers under the transfer- and reclamation are higher on the waste exclusion. By promulgating restrictions based exclusion to have financial management hierarchy and more likely and/or conditions that will lead to assurance in order to determine that to conserve resources than burning for responsible management of hazardous negative economic factors will not result energy recovery. secondary materials, the Agency intends in the hazardous secondary materials EPA’s Response: BFE and UCD to encourage hazardous secondary being abandoned. materials recycling, while protecting One commenter disagreed with the EPA continues to maintain that human health and the environment. study’s conclusion that intra- and inter- comments on UCD and BFE are outside company recyclers have more flexibility the scope of the solid waste exclusions 3. Market Forces Study in their waste management decisions in today’s final rule, which are focused EPA received very few comments on than commercial recyclers do. The on reclamation. EPA agrees that Potential Effects of Market Forces on the commenter noted that company politics hazardous secondary materials that are Management of Hazardous Secondary and internal goals can make it difficult comparable to commercial fuels should Materials Intended for Recycling. The to switch from recycling to disposal, not be solid wastes, and the Agency has purpose of this study is to use economic even if the market forces make it more already promulgated an exclusion for theory to describe how various market economical, and that it may take two or certain of these materials (40 CFR incentives can influence a firm’s more months to find a disposal 261.4(a)(16)). However, as stated earlier, decision making process when the contractor. such materials are outside the scope of recycling of hazardous secondary While EPA generally agrees that there today’s final exclusions and are best materials is involved. Different are more factors at work than those addressed under separate rulemaking economic incentives between the described in the study, we continue to efforts. believe that intra- and inter-company recycling of hazardous secondary XVI. Major Comments on the Exclusion recycling have more flexibility in waste materials and manufacturing can arise for Hazardous Secondary Materials management decisions than a due to differences in these two business Legitimately Reclaimed Under the commercial recycler does. When a models. As opposed to manufacturing, Control of the Generator where the cost of inputs of either raw commercial recycler’s entire income is materials or intermediates is greater from accepting hazardous secondary A. Scope of the Exclusion materials for recycling and selling than zero and revenue is generated 1. Exclusion for Materials Recycled On- recycled products, there is no economic primarily from the sale of the output, Site some models of hazardous secondary alternative for it to stop recycling and materials recycling involve generating continue to stay in business unless it Comments: On-Site Exclusion revenue primarily from the receipt of can afford the cost of a hazardous waste In our March 2007 supplemental the hazardous secondary materials. management permit and the cost of proposal, EPA proposed to exclude from Recyclers of hazardous secondary becoming a hazardous waste disposal the definition of solid waste hazardous materials in this situation may thus facility. This finding is supported by the secondary materials that are generated respond differently to economic forces results of the damage cases, the and legitimately reclaimed at the and incentives from traditional overwhelming majority of which were at generating facility. EPA proposed to manufacturers. commercial recycling facilities. define ‘‘generating facility’’ in 40 CFR Comments and EPA’s Response: Market E. Use Constituting Disposal (UCD) and 260.10 as ‘‘all contiguous property Forces Study Burning for Energy (BFE) owned by the generator’’ (72 FR 14214). We noted that our proposed definition Most of the commenters agreed with Comments: UCD and BFE would include situations where a the underlying premise of the study that EPA received extensive comments on generator contracted with another market forces affect commercial both the October 2003 proposal and the company to reclaim hazardous recycling differently from how they March 2007 supplemental proposal secondary materials at the generator’s affect manufacturing from virgin requesting that the scope of the facility, either temporarily or materials, thus creating a potential proposed rules be expanded to include permanently. The Agency solicited incentive for the over-accumulation of hazardous secondary materials used in comment on whether facilities under hazardous secondary materials in some a manner constituting disposal and separate ownership, but located at the circumstances. Thus, the study supports hazardous secondary materials burned same site (e.g., industrial parks), should both the proposed conditions for the for energy recovery. Commenters argued be included within this proposed transfer-based exclusion and the ‘‘useful that these operations do not involve exclusion. We also solicited comment contribution’’ factor for the legitimacy discard, and that they can have many on other definitions which might be criteria. EPA agrees with these environmental benefits, including compatible with the concept of comments. resource conservation and reduction in generator control.

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Commenters who addressed this issue generated and legitimately reclaimed by changed the definition of ‘‘generating generally supported the proposed on- the hazardous secondary material facility’’ in 40 CFR 260.10 to read ‘‘all site exclusion. They agreed with EPA generator at that generator’s facility. We contiguous property owned, leased, or that hazardous secondary materials agree with the commenters that at least otherwise controlled by the hazardous reclaimed by a generator at its facility some of the situations they described secondary material generator.’’ We have are unlikely to be discarded because the are not necessarily incompatible with also amended the existing definition of materials will be managed and generator control. One of the ‘‘facility’’ in § 260.10 to include a monitored by a single entity who is situations—spent pickle liquor recycled reference to management of hazardous familiar with both the generation and on-site at a steel mill—is eligible for the secondary materials. Therefore, any recycling of the hazardous secondary generator-controlled exclusion if the references to ‘‘facilities’’ or ‘‘units’’ of a materials. Several commenters also generator has contracted with the facility in today’s rule also refers to agreed with EPA that environmental company to reclaim the material at the facilities or units managing hazardous risks were lessened if the hazardous generator’s facility. However, the secondary materials excluded under this secondary materials were not Agency does not have sufficient legal or rule. transported off-site, and that fewer factual information about other 2. Exclusion for Materials Recycled by liability questions would arise in the situations mentioned by the the ‘‘Same Company’’ case of accidents or mismanagement. commenters to determine if there is a With respect to companies under single entity who remains in control of In its March 2007 supplemental separate ownership, but located at the the hazardous secondary material proposal, EPA proposed to exclude from same site, commenter reaction was more throughout the reclamation process. the definition of solid waste hazardous mixed. Some commenters said that this For this reason, EPA believes that secondary materials that were generated situation is not compatible with such situations may be more and reclaimed by the same ‘‘person’’ as generator control. They argued that appropriately addressed under the defined in 40 CFR 260.10, if the unrelated companies would not be as exclusion for hazardous secondary generator certified the following: ‘‘on likely to have knowledge of each other’s materials transferred for reclamation (40 behalf of [insert company name], I operations and hazardous secondary CFR 261.4(a)(24)) or under the case-by- certify that the indicated hazardous materials, and that additional controls case non-waste determination recyclable material will be sent to were necessary, such as financial procedures finalized today in § 260.30. [insert company name], that the two assurance for the reclaimer and For the sake of clarity and in response companies are under the same reasonable efforts on the part of the to comments, we are also adding a ownership, and that the owner generator (conditions that EPA had definition of ‘‘hazardous secondary corporation [insert company name] has proposed for the transfer-based material’’ and ‘‘hazardous secondary acknowledged full responsibility for the exclusion). material generator’’ to § 260.10. safe management of the hazardous Other commenters supported an ‘‘Hazardous secondary material’’ means secondary material’’ (72 FR 14214). exclusion for facilities under separate a secondary material that, when ‘‘Person,’’ as defined in § 260.10, means ownership, but located at the same site, discarded, would be identified as an individual, trust, firm, joint stock (i.e., co-located facilities). These hazardous waste under part 261 of 40 company, Federal Agency, corporation commenters said that such an exclusion CFR. ‘‘Hazardous secondary material (including a government corporation), would encourage recycling. These generator’’ means any person whose act partnership, association, State, commenters mentioned a variety of or process produces hazardous municipality, commission, political scenarios which they argued should be secondary material at the generating subdivision of a State, or any interstate eligible for the exclusion. Some facility. A facility that collects body. EPA proposed the certification commenters described integrated hazardous secondary materials from requirement because of existing chemical manufacturing operations with other persons is not the hazardous complexities in corporate ownership co-located facilities that are owned by secondary material generator. These and liability. The certification would different entities because of corporate definitions would apply to all of the clarify the responsibilities of the mergers and acquisitions. Another exclusions promulgated today. We note generator and reclaimer and would help commenter noted that at some steel that generators sometimes contract with regulatory authorities determine plants, spent pickle liquor is reclaimed a second company to collect hazardous whether a facility was eligible for this on-site by a company that is different secondary materials at the generating exclusion. The Agency solicited from the company operating the steel facility, after which the hazardous comment on any other certification plant. Other commenters noted that secondary materials are subsequently language that might accomplish the coke and tar plants at iron and steel reclaimed at the facility of the second same end, and on other definitions of facilities are sometimes owned by company. In that situation, the ‘‘same-company’’ (72 FR 14186). electric utilities. A few commenters hazardous secondary materials would Comments: Same-Company Exclusion argued that facilities at airports should no longer be considered ‘‘under the be eligible for the exclusion, and other control of the generator’’ because the Many commenters supported this commenters mentioned various materials are not reclaimed at the exclusion and stated that hazardous cooperative recycling ventures within generating facility. The materials should secondary materials sent from one the automotive industry. Some instead be managed under the exclusion company’s facility to another remained operations mentioned by commenters for materials transferred for reclamation. essentially under the control of the appeared to be prospective rather than EPA agrees with certain comments generating company. According to these actual. that a facility that generates hazardous commenters, if a generator sends secondary materials may lease the materials to a reclaimer that is part of EPA’s Response: On-Site Exclusion property where it conducts operations, the same corporate structure, the After evaluating these comments, EPA rather than own the property and that generator is likely to be familiar with has decided to finalize this provision as our proposed definition of ‘‘generating the recycling and materials management proposed and to limit the exclusion to facility’’ would not cover such processes employed by the reclaimer. In hazardous secondary materials that are arrangements. EPA has therefore addition, questions regarding liability

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and responsibility for such hazardous Comments: Certification of Same retaining a certification requirement for secondary materials are likely to be Company this exclusion. clearer than is the case with facilities However, the Agency has also Some commenters argued that no from unrelated companies. decided that its proposed certification certification should be necessary when language should be revised to avoid Other commenters stated that when hazardous secondary materials are sent confusion and to ensure more effective hazardous secondary materials are between the same or related companies generator control. We have therefore generated and transported off-site for because generator knowledge of the revised our proposed regulatory reclamation, additional controls were materials and the potential CERCLA definition for this exclusion to refer to needed to avoid discard and protect liability should suffice to ensure safe ‘‘facilities’’ rather than companies. human health and the environment and legitimate recycling. Other Under the definition finalized today at even in the case of intra-company commenters supported a certification 40 CFR 260.10, the reclaiming facility recycling. Some of these commenters provision, but suggested alternative must be ‘‘controlled’’ by the generating preferred such reclamation to be language that they stated would be more facility or by a person (under § 260.10) regulated under the proposed compatible with generator control. Still who controls both the generating facility conditional exclusion for hazardous other commenters disagreed with our and the reclaiming facility. ‘‘Control,’’ secondary materials transferred for the proposed requirement for certifying that for purposes of this exclusion, means purpose of reclamation. This measure the generator and reclaimer of ‘‘the power to direct the policies of the would ensure that generators would hazardous secondary materials were facility, whether by the ownership of have to perform reasonable efforts and under the same ownership and that the stock, voting rights, or otherwise, except that reclaimers would have to obtain owner corporation must acknowledge that contractors who operate facilities financial assurance. Other commenters responsibility for the safe management on behalf of a different person shall not suggested additional notification and of the hazardous secondary materials. be deemed to ‘‘control’’ such facilities’’ recordkeeping requirements for any According to these commenters, (see § 260.10). Our final certification hazardous secondary materials under existing corporate law, parent language requires the generating facility transported off-site. companies do not (and sometimes to certify that it controls the reclaiming cannot) assume legal liability for their facility, or that the generating facility EPA’s Response: Same-Company subsidiaries. EPA’s proposed and the reclaiming facility are under Exclusion certification requirement regarding the common control. In addition, the generator must certify that either the After evaluating these comments, the owner company would therefore have generating facility or the reclaiming Agency has decided to retain ‘‘same- little legal effect and could actually discourage same-company recycling. facility acknowledges full responsibility company’’ recycling under the for the proper management of the exclusion for hazardous secondary Some of these commenters suggested that either the generator or the reclaimer hazardous secondary materials. To materials legitimately reclaimed under avoid confusion, we have also amended the control of the generator. We do not should acknowledge responsibility for properly managing the hazardous the definition of ‘‘facility’’ at 40 CFR believe that facilities exchanging 260.10 to include facilities which hazardous secondary materials within secondary material, not a third-party owner corporation. manage hazardous secondary materials. the same corporate structure should be Therefore, any reference to ‘‘facilities’’ Other commenters said that the subject to the requirements for our in this rule also includes facilities exclusion at § 261.4(a)(24), as long as proposed requirement that the which manage materials excluded under appropriate control of the recycling hazardous secondary materials be the regulations promulgated today. process is maintained. In particular, it is generated and reclaimed by the same EPA believes that this revised unnecessary for the generator to perform ‘‘person’’ under 40 CFR 260.10 was not language more appropriately reflects the reasonable efforts on the reclaimer, appropriate because a corporation and concept of ‘‘generator control’’ that because the generator is likely to be its affiliates or subsidiaries are legally underlies the exclusions at 40 CFR knowledgeable about the reclaimer’s distinct and not the same ‘‘person.’’ 261.2(a)(2)(ii) and 261.4(a)(23). ability to recycle the hazardous Therefore, one commenter suggested Requiring that a generating facility secondary materials properly and that we refer to related ‘‘facilities’’ control the reclaiming facility, or that rather than ‘‘companies.’’ Some other legitimately. Similarly, if the generator both be under common control, ensures commenters suggested that we focus on and reclaimer are part of the same that there is an ongoing relationship the concept of ‘‘control’’ rather than corporate structure and if common between the generator and reclaimer ‘‘ownership.’’ control is maintained over the policies and that the two facilities are more of both facilities, there are strong EPA’s Response: Certification of Same likely to be familiar with each others’ incentives to ensure that the hazardous Company waste management practices, thereby secondary materials are properly and minimizing the possibility of discard. If After evaluating these comments, EPA legitimately reclaimed, thus making a there is no such relationship, the two does not agree with the commenters financial assurance requirement for the facilities should not be eligible for this who argued that a certification reclaimer unnecessary. exclusion and the use of the transfer- requirement is not needed. We note that based exclusion would be more In response to commenters who the purpose of the certification is not to appropriate. In addition, requiring the suggested additional notification and directly ensure proper and legitimate hazardous secondary material generator recordkeeping requirements, we note recycling, but to clarify responsibility to certify that either the generating that the Agency is revising our proposed for the hazardous secondary materials facility or the reclaiming facility requirements for notification and and to demonstrate to regulatory acknowledges responsibility for the safe recordkeeping for all exclusions officials that the hazardous secondary management of hazardous secondary promulgated today. These revisions are materials are not discarded and are materials ensures that the responsibility discussed in sections VII.C. and VIII.C. within the terms of the generator- rests with the party most capable of of this preamble. controlled exclusion. We are therefore assuming such responsibility. This

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certification should be made by an would be lacking. We have revised the materials or send them to a third party official familiar with the corporate certification language of 40 CFR 260.10 for reclamation. structure of both the generating and the to reflect this approach. The parties Other commenters, on the other hand, reclaiming facilities and should be involved may apply for a case-by-case urged EPA to expand the tolling retained at the site of the generating non-waste determination under 40 CFR exclusion to other types of contractual facility. 260.30, as appropriate, or use the arrangements. A few commenters said transfer-based exclusion. that the exclusion should be allowed for Comments and EPA’s Response: any contract between a generator and a Application to Government Agencies 3. Types of Tolling Arrangements reclaimer where the generator was and Universities Eligible willing to retain ownership of and/or Some commenters requested that EPA In its March 2007 supplemental responsibility for the hazardous clarify whether two government proposal, the Agency proposed to secondary materials. Other commenters agencies (such as the Department of exclude from the definition of solid mentioned specific contractual Defense and the Department of Energy) waste certain hazardous secondary situations in which they argued the would be considered the same ‘‘person’’ materials that are generated pursuant to hazardous secondary materials in under 40 CFR 260.10 if hazardous a written contract between a tolling question were clearly handled as a secondary materials are generated by contractor and a toll manufacturer. commodity and discard was therefore one agency and reclaimed by another. In Through the contract, the tolling highly unlikely. One example given was response, we note that for purposes of contractor would arrange for the a facility that reclaims metals from RCRA, the federal government is not a manufacture by the toll manufacturer of electric arc furnace dust and then sends single ‘‘person’’; rather, each agency or a product made from unused materials the metals back to steel mills to be department would be considered a specified by the tolling contractor. To be reused. Another example was a facility separate ‘‘person.’’ We also note that eligible for the exclusion, the tolling that takes spent copper etchant from under today’s final rule, a federal contractor would have to retain manufacturers of printed wiring boards agency that is a generating facility does ownership of and responsibility for the and uses the material to make new not normally have the power to direct hazardous secondary materials that copper compounds. Still another the policies of a different federal agency were generated during the course of the example was a facility that collects used that is a reclaiming facility, nor is there production of the product. EPA solicited paint purge solvent from auto body a ‘‘person’’ under § 260.10 who directs paint operations, reclaims it, and sells comment on other types of contractual the routine policies of both facilities. In regenerated solvent back to the auto arrangements under which discard is certain situations, the two different body facility. federal agencies involved may wish to unlikely to happen and which could apply for a case-by-case non-waste appropriately be covered by the EPA’s Response: Tolling Arrangements determination under 40 CFR 260.30, as exclusion for generator-controlled After considering these comments, the appropriate, or use the transfer-based hazardous secondary materials. For Agency has decided to retain the tolling exclusion. example, one company could enter into exclusion, but not to broaden its scope. Other commenters requested that EPA a contractual arrangement for a second The exclusion will therefore be limited clarify whether the same-company company to reclaim and reuse (or return to situations where a tolling contractor exclusion extends to hazardous for reuse) the first company’s hazardous contracts with a toll manufacturer to secondary materials that are generated secondary materials. The first company make a product from specified unused and reclaimed at different facilities, could create a contractual instrument materials. We do not agree with those when both facilities are owned by the that exhibits the same degree of control commenters who said that tolling same government agency or university, over how the second company manages contracts are not compatible with but operated by a contractor. In some of the hazardous secondary materials as is ‘‘generator control.’’ The typical tolling these situations, the same contractor found in a tolling arrangement (72 FR contract contains detailed specifications operates both the generating facility and 14186). about the product to be manufactured, the recycling facility, but, in other Comments: Tolling Arrangements including the management of any situations, the generating facility and hazardous secondary materials that are the reclaiming facility are operated by Some commenters stated that tolling generated and returned to the tolling different contractors. In those situations arrangements are incompatible with contractor for reclamation. In addition, where the generating facility and the ‘‘generator control’’ and are best the tolling contractor will enter into a reclaiming facility are both owned by regulated under the proposed exclusion tolling contract with such requirements the same government agency or for materials that were transferred for only if it has decided that the economic university, the two facilities would be legitimate reclamation. They argued that benefit from such recycling is justified. under common control because the requirements such as reasonable efforts For these reasons, we do not believe that agency or university in question has the (by generators) and financial assurance tolling arrangements should be subject power to direct the policies of both the (for reclaimers) were necessary to avoid to the conditions applicable to the generating facility and the reclaiming discard in the case of off-site transfer-based exclusion. facility. Under this scenario, both reclamation. Some of the commenters On the other hand, the Agency also facilities would therefore be eligible for argued that the physical generator of the does not agree with those commenters the same-company exclusion, even if hazardous secondary material (in this who urged that we should allow the operated by different contractors. case, the toll manufacturer) retains legal generator-controlled exclusion for any However, if the generating facility and liability for the material. They stated hazardous secondary materials the reclaiming facility were each owned that contracts which reallocated generated under a contract between a by a separate government agency or resources to address financial generator and a reclaimer. We believe university, they would not be eligible responsibility for mismanagement or that the exclusion should be limited to for this exclusion even if both facilities mishap could contain loopholes that the types of tolling arrangements were operated by the same contractor, would allow tolling contractors to specified in 40 CFR 260.10. When because the element of common control dispose of hazardous secondary hazardous secondary materials are

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transferred off-site for reclamation, there did not include enough detail about the B. Restrictions on Exclusions for is, in general, less likelihood of contracts to enable the Agency to draft Hazardous Secondary Materials generator control, and, hence, more appropriate regulatory language. In Managed Under the Control of the likelihood of discard, in the absence of other cases, the arrangement suggested Generator in Land-Based Units and conditions that ensure the hazardous was industry-specific and the Non-Land-Based Units secondary materials will be handled as conditions or requirements suggested by In its March 2007 supplemental valuable products. In these situations, the commenters were not appropriate proposal, the Agency proposed in 40 additional requirements are needed for for an exclusion covering many different CFR 261.4(a)(23)(i) that hazardous the Agency to determine that no discard types of facilities. We believe that such secondary materials generated and has occurred. Conversely, in the specific arrangements are best evaluated on a legitimately reclaimed under the control situations included in the generator- case-by-case basis by the regulatory of the generator must be contained if controlled exclusion (on-site, same- authority, possibly under 40 CFR they were stored in land-based units (72 company, and tolling reclamation), we 260.30, to determine their eligibility for FR 14216). EPA proposed to use the believe that the generator is much more exclusion. existing definition of land-based units likely to be familiar with the reclaimer and defined a land-based unit in 40 CFR and to have powerful incentives to see Comments: Terms Used in Tolling 260.10 as a landfill, surface that the hazardous secondary materials Exclusion impoundment, waste pile, injection are reclaimed properly and legitimately. well, land treatment facility, salt dome In these cases, the requirements that we One commenter suggested that we have finalized today (notification, replace the term ‘‘batch manufacturer’’ formation, salt bed formation, or legitimate recycling, compliance with with ‘‘toll manufacturer.’’ This underground mine or cave. EPA did not speculative accumulation limits, and commenter stated that ‘‘batch propose a containment limitation for such materials if they were stored in containment) are sufficient for the manufacturer’’ was too broad and non-land-based units. Agency to determine that such generally referred to a facility which hazardous secondary materials are not EPA did not propose a regulatory engages in a distinct, short production definition of ‘‘contained,’’ nor did we discarded. These requirements may not campaign, not necessarily tied to a two- be sufficient in the case of unrelated propose specific performance or storage party contractual agreement. ‘‘Toll standards. We stated that whether generators and reclaimers who have a manufacturer,’’ this commenter stated, non-tolling type of contract. hazardous secondary materials are is a subset of batch manufacturers and contained would be decided on a case- To clarify the requirements for tolling generally refers to a party which contracts under today’s rule, and to by-case basis, and that such materials undertakes manufacturing pursuant to a assist regulatory authorities in are generally contained if they are contract with a tolling contractor, such determining whether a facility is eligible placed in a unit that controls the as the arrangement we proposed. This for an exclusion under a tolling movement of the hazardous secondary contract, EPA has also added a commenter also requested that EPA materials out of the unit. We solicited certification requirement to the clarify that the ‘‘product’’ required to be comment on whether additional definition of hazardous secondary produced under a tolling contract can requirements might be necessary to material generated and reclaimed under include intermediates, as well as final demonstrate absence of discard when the control of the generator in § 260.10 products, and that materials used in toll hazardous secondary materials were of the final rule. This provision would manufacturing were sometimes recycled under the control of the require the tolling contractor to certify specialty chemicals or intermediates generator. In particular, we asked that it has a written contract with the that could not be described as ‘‘raw whether additional requirements for toll manufacturer to manufacture a materials,’’ as would be required under storage would be appropriate, such as product or intermediate which is made our proposal. They suggested that we performance-based standards designed from unused materials specified by the use the term ‘‘specified materials’’ to address releases to the environment. tolling contractor, and that the tolling instead. We also indicated that if commenters contractor will reclaim the hazardous believed such requirements were secondary materials generated during EPA’s Response: Terms Used in Tolling appropriate, they should specify the the course of this manufacture. The Exclusion technical rationale for each requirement suggested and why the requirement is tolling contractor must also certify that The Agency agrees that the suggested necessary if the hazardous secondary it retains ownership of, and term ‘‘toll manufacturer’’ is more responsibility for, the hazardous material remains under the control of accurate and has revised the definition secondary materials that are generated the generator. in § 260.10 accordingly. EPA also agrees during the course of the manufacture, that a product produced under a tolling Comments and EPA’s Response: including any releases of hazardous Definition of ‘‘Land-Based Unit’’ secondary materials that occur during contract can be an intermediate or a the manufacturing process. This final product and has revised the EPA received several comments certification should be made by an definition in § 260.10 to refer to expressing confusion over our proposed official familiar with the terms of the ‘‘production of a product or definition of ‘‘land-based unit.’’ We written contract and should be retained intermediate.’’ Finally, the Agency proposed land-based unit to mean ‘‘a at the site of the tolling contractor. agrees that the term ‘‘raw materials’’ landfill, surface impoundment, waste In response to those commenters who may not be accurate, but prefers to use pile, injection well, land treatment described specific types of contractual the term ‘‘unused materials’’ instead of facility, salt dome formation, salt bed arrangements that should be eligible for ‘‘specified materials,’’ because we formation, or underground mine or the generator-controlled exclusion, we believe that term encompasses specialty cave.’’ Commenters noted that including note that facilities operating under such chemicals and intermediates without ‘‘landfills’’ and ‘‘injection wells’’ was arrangements may apply for a non-waste also including spent or secondary not necessary for the proposed determination under § 260.30, as materials, which are not included in our exclusion, since these management appropriate. In some cases, commenters definition of toll manufacturing. units are clearly inappropriate for

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hazardous secondary materials intended requirements were not necessary, but depth evaluation of such state for recycling. Furthermore, commenters suggested other standards, such as requirements, we are not adding a also noted that Subtitle C defines these requiring tanks to be in good condition, definition of ‘‘contained’’ that would terms waste-centrically (i.e., as a unit to be compatible with the stored incorporate this suggested element. that handles ‘‘waste’’ in one way or material, to have secondary However, regulatory authorities may another). This could create confusion containment, or to be subject to routine consider compliance with such because a hazardous secondary material inspections. requirements as one of the factors in would not, by definition, be ‘‘managed’’ determining whether the hazardous EPA’s Response: Standards for Units (or ‘‘stored’’) in one of these ‘‘waste’’ secondary materials are contained in the (Land-Based and Non-Land-Based) units. EPA agrees with these comments, units. and in the final rule has defined ‘‘land- After evaluating these comments, the Comments: Releases based unit’’ as an area where hazardous Agency has decided not to add secondary materials are placed in or on performance standards or other In the March 2007 supplemental the land before recycling. However, as requirements for managing hazardous proposal, the Agency stated that discussed below, the Agency has secondary materials excluded under any hazardous secondary materials that clarified that land-based units that are of the exclusions promulgated today remain contained in these units would production units are not included in the (§§ 261.2(a)(2)(ii), 261.4(a)(23), or still meet the terms of the exclusion definition. 261.4(a)(24)). Such detailed measures even if a release occurred, unless the are unnecessary for hazardous hazardous secondary materials are not Comments and EPA’s Response: Mineral secondary materials that are handled as managed as a valuable product, and, as Processing Industry valuable products that are destined for a result, a significant release from the Some commenters asserted that the recycling. Under today’s rule, regulatory unit takes place. If such a significant Agency has no jurisdiction over land- authorities can determine whether such release occurred, the hazardous based production units in the mineral materials in a unit are contained by secondary material remaining in the processing industry. As previously considering all such site-specific unit may be considered a solid and stated, EPA agrees that the Agency does circumstances. For example, local hazardous waste. Some commenters not regulate the production process. conditions can greatly affect whether noted that a series of small releases from (See 63 FR 28580). Accordingly, EPA hazardous secondary materials managed a unit could occur over time, causing has clarified the definition of ‘‘land- in a surface impoundment are likely to cumulative environmental harm even based unit’’ to clarify that production leak and cause damage, and, therefore, though no single release was significant units are not included in that definition. whether the unit could be considered in terms of volume. These commenters However, these commenters also contained. Similarly, facilities may said that such a series of releases should asserted that EPA cannot legally require employ such measures as liners, leak generally lead to the conclusion that the containment for these units. To the detection measures, inventory control hazardous secondary material remaining extent that these comments are intended and tracking, control of releases, or in the unit was a waste. to mean that EPA cannot regulate monitoring and inspections. Any or all EPA’s Response: Releases material that has been released into the of these practices may be used to environment, these comments are determine whether the hazardous EPA agrees with the comment addressed in section XV.C. of this secondary materials are contained in the concerning small releases from a unit preamble, and also in the response to unit. over time. Thus, a ‘‘significant’’ release comments document in the record for EPA also believes that detailed is not necessarily large in volume, but this rulemaking. standards are not necessary to would include an unaddressed small determine that valuable materials release from a unit that, if allowed to Comments: Standards for Units (Both destined for recycling are not discarded continue over time, could cause Land-Based and Non-Land-Based) when managed in non-land-based units. significant damage. Any one release Other commenters, however, were As with land-based units, the regulatory may not be significant in terms of opposed to allowing any land-based authorities can identify hazardous volume. However, if the cause of such storage, at least without a RCRA Part B secondary materials that have been a release remains unaddressed over time permit or strict requirements, such as released from the unit and determine and hazardous secondary materials are secondary containment, leak detection that the released material is discarded. managed in such a way that the release measures, regular inspections, To clarify this approach and to facilitate is likely to continue, the hazardous monitoring, or financial assurance. Most its implementation, however, EPA has secondary materials in the unit would of these commenters did not appear to revised its regulatory language to not be contained. For example, a rusting distinguish between land-based units require that hazardous secondary tank or containers that are deteriorating under the generator-controlled materials that are generated and may have a slow leak that, if exclusion and those under the exclusion reclaimed under the control of the unaddressed, could, over time, cause a for hazardous secondary materials generator and managed in non-land- significant environmental impact. transferred for reclamation; presumably, based units must also be contained Similarly, a surface impoundment with they wanted the same conditions for (§ 261.4(a)(23)(i)). a slow, unaddressed leak to both. groundwater could, over time, result in Regarding non-land-based units such Comments and EPA’s Response: State significant damage. Another example as tanks, containers, or containment Regulatory Program-Compliant Units would be a large pile of lead- buildings, some commenters agreed A few commenters indicated that contaminated finely ground material with EPA’s approach, but other hazardous secondary materials managed without any provisions to prevent wind commenters preferred minimum storage in units complying with state regulatory dispersal of the particles. Such releases, standards for these units. Some programs to address releases should be if unaddressed over time and likely to commenters wanted Subtitle C considered contained. Because of the continue, would mean that the standards to apply. Other commenters variety of such programs, and because hazardous secondary materials believed that the RCRA hazardous waste the Agency has not conducted an in- remaining in the unit were not being

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managed as a valuable raw material, requirements for notification and excluded materials, financial assurance, intermediate, or product and that the recordkeeping. A few commenters and speculative accumulation. The materials had been discarded. As a argued that intermediate facilities Agency believes that these conditions result, the hazardous secondary should be required to have a RCRA Part are fully sufficient to ensure that materials in the unit would be B permit or interim status. hazardous secondary materials stored at hazardous wastes and these units would intermediate facilities are handled as EPA’s Response: Intermediate Facilities be subject to the RCRA hazardous waste valuable products and not discarded. regulations. After evaluating these comments, the Therefore, we do not agree with those Agency has decided that intermediate commenters who suggested that XVII. Major Comments on the facilities storing hazardous secondary intermediate facilities should be Exclusion for Hazardous Secondary materials should be eligible for the required to operate under Part B permits Materials Transferred for the Purpose exclusion at 40 CFR 261.4(a)(24) under or interim status. of Legitimate Reclamation certain conditions. We believe that such The Agency notes that in some cases, A. Status of Facilities Other Than the facilities make it easier for generators the intermediate facility performs the Generator or Reclaimer (‘‘Intermediate that generate smaller quantities of physical measures associated with Facilities’’) hazardous secondary materials to send generator reasonable efforts to ensure these materials for reclamation and that that the reclaimer will properly and Comments: Intermediate Facilities storage at such facilities under the legitimately recycle the hazardous In its March 2007 supplemental conditions designed to address discard secondary materials. These measures proposal, EPA requested comment on its is completely consistent with handling may include facility inspections and proposal that under the proposed the hazardous secondary materials as preparation of audits. In those cases, the exclusion for hazardous secondary valuable commodities. To this end, we generator must carefully review such materials transferred for reclamation, have added a new definition of measures to ensure that any information such materials would have to be ‘‘intermediate facility’’ to 40 CFR provided is credible. transferred directly from the generator 260.10. We note that this rule does not Under today’s rule (see 40 CFR to the reclaimer and not be handled by address ‘‘brokers’’ because that term is 261.4(a)(24)(ii)), if hazardous secondary anyone other than a transporter. commonly understood to mean a person materials are stored for 10 days or less EPA received many comments on this who helps arrange for the transfer of at a transfer facility, the transit is not provision. Some commenters supported hazardous waste or hazardous subject to the requirements applicable to the provision as proposed because they secondary material, but does not take intermediate facilities under the were concerned that if hazardous possession of the material or manage it transfer-based exclusion. Instead, it secondary materials were transferred to in any way. Brokers that never take must only be packaged in accordance a ‘‘middleman,’’ the generator would possession of hazardous secondary with applicable DOT requirements. The not have a reasonable understanding of materials would not have been affected Agency considers hazardous secondary who would reclaim the hazardous under the supplemental proposal, nor materials stored by transfer facilities for secondary materials and how they are they affected by today’s rule. short periods of time to be in transit, would be managed and reclaimed. If the Under today’s rule, an intermediate similar to hazardous waste stored by generator was unable to ascertain facility is a facility that stores hazardous similar facilities for the same time whether the hazardous secondary secondary materials for more than 10 period. They are therefore not materials in question could be properly days, other than a generator or reclaimer discarded. We have revised the existing and legitimately recycled, the materials of such materials. If an intermediate definition of ‘‘transfer facility’’ at 40 should be considered discarded. facility treats the hazardous secondary CFR 260.10 to clarify that such facilities Other commenters objected to this materials or commingles it with other may store hazardous secondary proposed limitation. They argued that hazardous secondary materials or with materials, as well as hazardous waste. many persons who generate smaller hazardous waste, it would not be The generator need not perform quantities of hazardous secondary eligible as an ‘‘intermediate facility’’ as reasonable efforts on such facilities, nor materials need help in consolidating defined in § 260.10 under today’s must such facilities comply with the shipments to make reclamation regulation. Under 40 CFR 260.42, requirements applicable to reclaimers of economically feasible. Some of these intermediate facilities must submit the hazardous secondary materials under 40 commenters also argued that same notification required of generators CFR 261.4(a)(24)(vi). In addition, intermediate facilities provided valuable and reclaimers of hazardous secondary hazardous secondary materials at assistance to generators by helping them materials transferred for reclamation. In transfer facilities may be repackaged properly transport, package, and store addition, under § 261.4(a)(24)(v) of from one container to another (e.g., the material, and by helping them find today’s rule, generators must also materials may be consolidated from responsible reclaimers. These perform appropriate reasonable efforts smaller to larger containers) or commenters believed that EPA’s on the intermediate facility, as well as transferred to different vehicles for proposed limitation could discourage the reclamation facility, and generators shipment (see 45 FR 86966, December reclamation by persons who generate are responsible for the ultimate 31, 1980). However, different hazardous smaller quantities of such hazardous selection of the reclamation facility. secondary materials may not be mixed secondary materials. These requirements will ensure that the together. In addition, if there is a release Most of the commenters who intermediate facility is handling the of the hazardous secondary materials at suggested that intermediate facilities be hazardous secondary materials as a the transfer facility that is not cleaned eligible for the exclusion also suggested commodity. up immediately, such materials become conditions for these facilities. These Today’s rule also requires solid waste, and, if they exhibit a conditions included requiring the intermediate facilities to comply with hazardous characteristic or are generator to select the reclaimer, the applicable requirements for specifically listed by EPA, a hazardous requiring the generator to perform reclaimers of hazardous secondary waste as well. Depending on the nature reasonable efforts on the intermediate materials under 40 CFR 261.4(a)(24)(vi), of the release, the hazardous secondary facility, as well as the reclaimer, and including recordkeeping, storage of materials remaining in the unit could

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also become a solid and hazardous since recycling is inherently case- efforts, many also provided comments waste subject to Subtitle C regulation specific. on the six questions in the preamble. In (for a discussion of when such units are On the issue of whether to codify a general, commenters were divided considered ‘‘contained,’’ see section XVI reasonable efforts standard, which between supporting and opposing of this preamble). several commenters addressed codification of all six questions, but separately from the development of a responses were generally favorable B. Reasonable Efforts Condition standard, EPA received many comments when commenters discussed the value EPA received many comments on the both in support of and against of individual questions within a condition proposed in the March 2007 codification. A large number of reasonable efforts inquiry. One supplemental proposal that generators commenters addressed this issue by exception to this is with respect to ‘‘make reasonable efforts to ensure that commenting on the six questions EPA proposed question (B) (‘‘Does the the reclaimer intends to legitimately discussed in the preamble. Those in reclamation facility have the equipment recycle the material and not discard it favor of codification believed that and trained personnel to properly * * * and that the reclaimer will establishing a minimum, objective recycle the hazardous secondary manage the material in a manner that is standard was important in order to material?’’), which several commenters protective of human health and the provide regulatory certainty for believed to be difficult for a hazardous environment.’’ This condition was generators regarding what is secondary material generator to answer proposed to be fulfilled by hazardous ‘‘reasonable’’ and for overseeing with existing knowledge. A few secondary material generators sending agencies needing to make consistent commenters also noted that questions hazardous secondary materials to any determinations that the condition is (D) and (E), the two proposed questions reclamation facility not operating under satisfied. Industry commenters pertaining to legitimacy within the a RCRA Part B permit or interim status responding in support of codification preamble discussion of reasonable standards, and the condition would believed the six questions resemble efforts, did not represent the legitimacy have to be satisfied prior to transferring existing audit questions, and would ‘‘factors to be considered’’ that were the hazardous secondary materials to therefore be straightforward to answer proposed in the March 2007 the reclamation facility (72 FR 14190– and satisfy. Recyclers and waste supplemental proposal at 40 CFR 14194). Below is a summary of six major management commenters believed that 261.2(g). These commenters suggested issues raised in the comments and small quantity generators would benefit that a reasonable efforts inquiry should EPA’s responses. For more detailed from having a clear standard and also include all criteria and factors in the comment responses, please see that the standard would make proposed legitimate recycling Revisions to the Definition of Solid additional clarifying guidance requirement. A few commenters also Waste Response to Comments unnecessary in the future. Some suggested including an additional Document. commenters conditionally supported question about the financial health of a codification contingent upon severance reclaimer. Comments: An Objective Standard for of RCRA liability for generators that Reasonable Efforts meet the minimum condition. These EPA’s Response: An Objective Standard commenters supported EPA’s proposal for Reasonable Efforts As proposed, the codified reasonable to create what they termed as a ‘‘safe After evaluating these comments, EPA efforts provision for generators was a harbor’’ for generators that, having met agrees that an objective minimum general standard, rather than a more the reasonable efforts condition, would standard is appropriate and necessary specific standard with clearly stated be shielded from any future RCRA for hazardous secondary material requirements. EPA requested comment liability caused by environmental generators to determine that they have on establishing a more objective damage at a reclamation facility. fulfilled the reasonable efforts standard for making reasonable efforts, On the other hand, several condition. We believe that without such such as requiring generators to answer commenters (mostly from the generating a standard, both generators and the the questions discussed in the preamble. industry) opposed codifying a standard. regulatory agencies would experience EPA acknowledged that creating an They believed a standard would be difficulty in determining whether the objective standard could provide unnecessary since generators that condition is met. However, in defining generators and overseeing agencies with already audit recyclers have existing the standard, it would in no way limit more regulatory certainty and requested criteria for making reasonable efforts. a generator’s ability to tailor and comment on codifying the six questions Some of these commenters also stressed enhance its reasonable efforts inquiry to outlined in the preamble. a need to maintain flexibility in their evaluate a particular industry or EPA received many comments in activities and to avoid additional recycler. support of an objective standard for burdensome requirements. One state We also agree with the commenters satisfying the reasonable efforts commenter requested that EPA allow who stated that the six questions from condition. Commenters suggested that a generators to establish their own the preamble to the March 2007 minimum standard was needed to standard for reasonable efforts so that supplemental proposal, with two determine whether a generator fulfilled generators will weigh their own level of modifications noted below, serve as a the condition and as a way of risk and ultimately be responsible for minimum objective standard. Therefore, determining what is ‘‘reasonable.’’ Many their decisions. This commenter also we are codifying them, with certain of these commenters also believed that believed that one standard is modifications. We strongly believe that a standard that generators must meet impractical for both ‘‘a large industrial any generator who takes advantage of was necessary to delineate liability for generator of a highly toxic hazardous today’s transfer-based exclusion must be hazardous secondary materials that are secondary material’’ and ‘‘a small able to answer all reasonable efforts transferred from a generator to a generator of a barely ignitable hazardous questions affirmatively for each reclamation facility. In contrast, several secondary material.’’ reclamation facility (and intermediate commenters suggested that formalizing Of the commenters that responded to facility, if such hazardous secondary a minimum standard which all the March 2007 supplemental proposal materials are sent to such a facility) in generators must meet is inappropriate to codify a standard for reasonable order to demonstrate that its hazardous

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secondary materials will be properly hazardous secondary materials to an reclaimer is a good method for limiting and legitimately recycled and not intermediate facility where they are future liability and that many generators discarded. In EPA’s view, a generator stored for longer than 10 days prior to already employ some form of the who is unable to satisfy the reasonable being transferred to a reclamation practice. These commenters largely efforts condition has not demonstrated facility, the generator will need to supported the provision. Other that its hazardous secondary materials perform reasonable efforts for both the commenters expressed concern that the are not discarded when recycled. The intermediate facility and reclamation reasonable efforts condition is an hazardous secondary materials would facility. unnecessary requirement since existing thus be ineligible for today’s transfer- The second modification is to the incentives, such as economic based exclusion. questions pertaining to legitimate motivations and CERCLA liability, With respect to question (4) (‘‘Does recycling activities. EPA acknowledges would cause a generator to perform the available information indicate that that one source of confusion for evaluations of reclaimers without being the reclamation facility and any commenters regarding the relationship mandated as a condition of the intermediate facility that is used by the between the reasonable efforts condition exclusion. hazardous secondary material generator and the legitimate recycling requirement Additionally, EPA received comments have the equipment and trained may have been the two questions about whether satisfying the reasonable personnel to safely recycle the pertaining to legitimacy (proposed efforts condition would sever a hazardous secondary material?’’), we questions (D) and (E)) within the generator’s regulatory liability if, after believe that its inclusion within reasonable efforts preamble discussion being sent to a reclamation facility, its reasonable efforts is appropriate and and the proposed legitimacy hazardous secondary materials were necessary since the question informs a requirement at 40 CFR 261.2(g). discarded or involved in environmental generator’s inquiry as to whether its Questions (D) and (E) and the proposed damage. Several commenters (namely hazardous secondary materials will be regulatory language for legitimacy did from industry) asked that EPA clarify properly and legitimately recycled. If a not share the exact same wording, that upon conducting a reasonable reclamation facility were found to have although both concepts were intended efforts evaluation of a reclamation inadequate equipment or untrained to be consistent. Furthermore, we facility, a generator would not be liable personnel, it would raise serious understand the concern commenters for a reclaimer’s subsequent questions as to whether the facility raised that questions (D) and (E) did not environmental violations or if a would be engaged in proper recycling or represent the legitimacy ‘‘factors to be reclaimer’s actions caused or discard. Without exploring this considered’’ that were proposed within contributed to some environmental question, we believe that a generator 40 CFR 261.2(g). As a result, we have harm or damage. Many of these cannot ascertain that a reclamation restructured the reasonable efforts commenters supported the codification facility will properly and legitimately questions pertaining to legitimacy to of a reasonable efforts standard, recycle its hazardous secondary read as a single question that ensures provided that liability would be severed materials. However, we also agree that, that a reclamation facility receiving upon meeting the condition. as drafted in the proposed rule, hazardous secondary materials intends Conversely, several commenters stated answering this question may require to legitimately recycle the hazardous that generator liability should be specialized knowledge and expertise. secondary materials. Because of changes maintained into the future regardless of Accordingly, EPA is changing this to the legitimacy provision in this final satisfying the condition. In general, question to allow the generator to rely rule as compared to the March 2007 these commenters were concerned that on the reclamation facility to explain supplemental proposal, this question hazardous secondary material why its equipment and personnel are now refers to the legitimacy requirement generators could subvert RCRA liability appropriate. Of course, the generator in § 260.43 of today’s final rule. by conducting incomplete and must have an objectively reasonable superficial evaluations of reclaimers, Comments: Liability Related to belief that the reclamation facility’s and that future environmental damage Reasonable Efforts equipment and trained personnel are would result at reclamation facilities. A adequate for safe recycling. EPA proposed the reasonable efforts few of these commenters suggested that Accordingly, if the equipment and condition as a way for hazardous EPA clarify that a hazardous secondary personnel described by the reclamation secondary material generators to material generator would be held liable facility would be, to an objective demonstrate that they met their for violating the condition of the reasonable person, clearly inadequate regulatory obligation to ensure that their exclusion into the future if it was shown for safe recycling of the generator’s hazardous secondary materials, when that the generator did not conduct a hazardous secondary material, then the transferred to a reclamation facility, thorough assessment of the reclaimer. generator would not have met this would not be discarded. Based on our EPA’s Response: Liability Related to condition. However, EPA does not assessment of good recycling practices Reasonable Efforts require nor expect the generator to have and the comments received, we believe specialized knowledge or expertise of that the reasonable efforts condition EPA disagrees that the reasonable the recycling process. We also discuss reflects current industry best practices efforts condition is unnecessary in light in more detail how a generator can of auditing or assessing reclamation of economic forces or CERCLA liability, answer this question in section VIII.C.2. facilities prior to entering into business which may motivate some generators to of this preamble. relations; this is done to minimize evaluate recyclers. We proposed the As noted previously, we are codifying potential regulatory and liability reasonable efforts condition as a way for the questions with two modifications. exposures and to demonstrate a hazardous secondary material The first modification to the questions commitment to environmental generators to demonstrate that they are is language that accommodates the stewardship. not discarding the hazardous secondary inclusion of intermediate facilities We received many comments related materials when sending them to a third within the transfer-based exclusion. As to liability and the reasonable efforts party for reclamation. The language of discussed in section VIII.C. of this condition. Many commenters stated that the condition is intended to capture preamble, if a generator sends making reasonable efforts to evaluate a within the regulatory text how

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responsible generators currently inquire community in determining whether the means that if the generator made and make decisions about recycling of condition of the exclusion has been met reasonable efforts to ensure that its hazardous secondary materials and how or violated. hazardous secondary materials are generators manage potential liability legitimately recycled in a way that Comments: Relationship Between the and regulatory non-compliance risks. satisfies this condition and, Reasonable Efforts Condition and the Several commenters suggested that not subsequently, the reclamation facility Legitimate Recycling Requirement all generators currently audit or evaluate fails to recycle the materials reclamation facilities despite having EPA received a variety of comments legitimately, the reclamation facility, economic interests and existing liability on the relationship between the not the generator, becomes liable for concerns. Analysis of the environmental condition that hazardous secondary violating RCRA (see section VIII.E. for problems study also suggests that material generators must make a more information). CERCLA liability alone is not enough to reasonable efforts inquiry of reclamation Comments: Periodic Updates to prevent damage and that increased facilities and the requirement that Reasonable Efforts generator inquiry of reclamation hazardous secondary materials must be facilities may help avoid future cases of legitimately recycled. Several EPA requested comment on a abandonment or discard, residuals commenters stated that evaluating requirement for making periodic mismanagement, sham recycling, and whether a reclaimer meets the updates to reasonable efforts, but did improper management of hazardous legitimacy criteria should be part of a not propose an explicit time period. secondary materials and recycled reasonable efforts inquiry to ensure that Some commenters favored requiring a products. a generator’s hazardous secondary specific time limit for updating the By proposing the reasonable efforts materials are legitimately recycled. One reasonable efforts provision, while condition, EPA intended to maintain commenter stated that while a others (a slightly smaller number) RCRA liability for any hazardous hazardous secondary material generator favored a flexible time frame for secondary materials that are discarded. would need to ensure that a recycling updating reasonable efforts, to be The condition clearly holds a generator activity being considered is legitimate in determined by the hazardous secondary accountable for determining that its order to protect its own liability material generator. The commenters hazardous secondary materials will not interests, a legitimacy determination who supported a specific time frame for be discarded at a reclamation facility or should be entirely separate from the updating the reasonable efforts any intermediate facility prior to reasonable efforts condition. Another condition included states, several transferring such materials to the commenter also stressed that, as a representatives of the recycling facility. If a generator does not meet the matter of good practice, many industry, one industry generator, and condition, then the generator’s responsible generators already ensure one environmental organization. Several hazardous secondary materials would that they send hazardous secondary of these commenters stated that the not be eligible for the transfer-based materials to facilities engaged in hazardous secondary material generator exclusion and would be considered by legitimate recycling; therefore, a needed to evaluate changes over time to EPA to be hazardous waste subject to legitimacy evaluation within reasonable the recycling facility (e.g., compliance the RCRA Subtitle C controls from the efforts is unnecessary. Furthermore, status, financial assurance, permit point of generation. several commenters (mostly from renewals, impact of changes in recycling EPA did intend, however, that if the industry) stated that a reasonable efforts markets) to ensure that their hazardous hazardous secondary materials condition is redundant since the secondary materials continue to be generator had satisfied the reasonable proposed legitimate recycling recycled properly and legitimately. efforts condition and discard requirement in 40 CFR 261.2(g) ensures Commenters also suggested that subsequently occurred while hazardous that hazardous secondary materials generators re-evaluate recyclers secondary materials were under the transferred off-site are safely recycled. whenever the generator becomes aware control of the reclamation or of new, ‘‘material’’ information about or EPA’s Response: Relationship Between intermediate facility, then the changes to a reclamation facility. These the Reasonable Efforts Condition and reclamation or intermediate facility, not commenters asked EPA to set a the Legitimate Recycling Requirement the generator, would be liable under minimum schedule for updating RCRA. EPA acknowledges that meeting EPA agrees with the commenters who reasonable efforts. The suggested this condition will not affect CERCLA stated that determining whether a schedules ranged from annually to every liability. (See section XIII for more recycling activity is legitimate is a five years. information on CERCLA liability.) We sound practice and, based on comments Several industry generators and recognize commenters’ concern that in we received, that many responsible associations, as well as one waste order to satisfy the reasonable efforts generators already use existing management association, submitted condition and be released from RCRA legitimacy guidance as a way to manage comments in opposition to requiring liability, hazardous secondary material their potential liability. The reasonable specific periodic updates of the generators could be tempted into efforts condition is intended to assist reasonable efforts provision. making incomplete evaluations of generators in determining that their Commenters expressed concern that an reclamation and intermediate facilities. chosen reclamation facilities will arbitrary time frame would EPA believes that codifying an objective properly and legitimately recycle the unnecessarily change generators’ reasonable efforts standard that all generators’ hazardous secondary current schedules for auditing or generators must meet in order to satisfy materials. Consequently, EPA strongly making inquiries of recycling facilities. the condition will alleviate this concern believes that the reasonable efforts Several commenters suggested that (see section VIII.C. of today’s condition must contain a provision that schedules for evaluating reclaimers rulemaking for more discussion). We explicitly refers generators to their should vary from facility to facility and also believe that specifying a standard obligation to ensure that their hazardous by industry and that a generator should that hazardous secondary material secondary materials are legitimately be allowed to decide when to update generators must satisfy will assist both reclaimed. Including legitimacy as part reasonable efforts given a facility’s regulatory agencies and the regulated of the reasonable efforts condition history and the generator’s familiarity

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with the facility. One commenting years. In fact, we acknowledge that A smaller number of comments from organization cited its use of an internal shorter time frames could be generators opposed the certification risk-based audit schedule to determine appropriate for certain industries. requirement. A few generators found the when to review a reclamation facility. Additionally, we would expect that any certification statement to be overly The stated criteria for judging the level hazardous secondary material generator burdensome and stated that it would of risk included facilities with lower who has concerns about a reclamation stifle the use of third-party reclaimers. financial health and the addition of or intermediate facility, or who gains One generator, who currently audits ‘‘new processing capabilities and when new knowledge of significant changes or reclamation facilities, stated it could not ownership changes.’’ Another generator extraordinary situations at such certify the accuracy of information requested EPA to ‘‘suggest, and not facilities, would conduct reasonable prepared by third parties, nor could it require, the frequency of periodic efforts regardless of the minimum certify responses by reclamation updates.’’ required update schedule. facilities to questions (B) through (E), which EPA discussed in the preamble. EPA’s Response: Periodic Updates to Comments: Requiring Generators to Another generator responded that Reasonable Efforts Certify Reasonable Efforts without further clarification as to the EPA agrees with the comments stating EPA solicited comment on requiring minimum requirements for satisfying that requiring generators to conduct hazardous secondary material reasonable efforts, the generator could specific periodic updates of the generators to certify that they made not certify that the condition was met. reasonable efforts provision is critical reasonable efforts prior to arranging for A commenter also suggested that for ensuring that reclamation facilities transport of hazardous secondary requiring certification of reasonable continue to properly and legitimately materials to be recycled. As discussed in efforts for reclamation facilities that recycle the hazardous secondary the preamble to the March 2007 recycle hazardous secondary materials materials into the future. We believe supplemental proposal, the certification was unnecessary if certification is not that if a hazardous secondary material statement would be a form of required for the storage, treatment, and generator evaluated a reclamation documentation necessary for each disposal of hazardous waste. facility (or an intermediate facility if reclamation facility and would be hazardous secondary material is sent to signed and dated by an authorized EPA’s Response: Requiring Generators such a facility) only once before the representative of the generator To Certify Reasonable Efforts initial transfer of hazardous secondary company. We also provided certification After evaluating the comments, EPA materials for recycling, it would not language as an example. has concluded that certifying the provide adequate assurance to Several commenters including reasonable efforts provision is a regulators that hazardous secondary recyclers, all responding states but one, necessary and minimally burdensome material generators have met the and a few industry generators and requirement for ensuring that the reasonable efforts condition to ensure associations, commented in favor of reasonable efforts condition is met prior discard will not occur 5, 10, or 20 years requiring hazardous secondary material to transferring the hazardous secondary into the future. We understand that generators to certify that they had met materials to a reclamation facility. We generators often evaluate recyclers or the reasonable efforts condition. All also strongly believe that requiring the intermediate facilities on a recurring commenters that responded regarding signature of an authorized schedule determined by the generator’s the example certification statement representative of the generator particular interests, concerns, and supported the language. A few company, who can be any appointed experience. However, EPA believes that commenters reiterated that generators company representative, is critical for hazardous secondary material must certify reasonable efforts for each ensuring accountability for satisfying generators are also interested in having reclamation facility and that the condition. In the event of an regulatory certainty regarding the time certification should not be necessary for enforcement action, we believe that the frame for which reasonable efforts must RCRA Part B permitted facilities. One certification will lend support to be conducted, rather than a completely commenter requested that the hazardous secondary material discretionary ‘‘generator decides’’ certification must be made ‘‘prior to generators needing to prove that the approach, which will present many implementing exempt operations.’’ reasonable efforts condition was met. disagreements and challenges as to what Another commenter believed that a Therefore, in today’s final rulemaking, a ‘‘reasonable’’ schedule is. We are also certification statement would improve we are finalizing a requirement that aware that many generators do not the enforceability of the reasonable hazardous secondary material currently conduct reasonable efforts, let efforts condition. A generator that generators must certify that reasonable alone re-evaluate such facilities over currently audits its waste facilities efforts were made for each reclamation time. For these reasons, we are requiring stated that ‘‘a letter signed and dated by and intermediate facility prior to that hazardous secondary material the department manager is mailed to the transferring hazardous secondary generators update their reasonable audited facility stating the results of the materials to such facilities. efforts evaluation at least every three audit,’’ and that the letter should act as With respect to those commenters years, at a minimum. Based on public a certification. Another commenter who opposed certification and comments, this appears to represent suggested that given the large number of specifically argued that requiring such general industry practice and to be facilities for which reasonable efforts are certification would stifle the use of within the average time frame for those required, having a company third-party auditors, it is our generators who currently conduct representative, as opposed to an understanding that third-party auditors environmental audits of facilities to ‘‘authorized representative,’’ sign and do not generally draw any conclusions which they send their hazardous date a certification should be sufficient based on their audits, but simply report secondary materials. and would be less burdensome. One the results. In addition, the reasonable By specifying a time frame for recycler requested that the generator efforts condition requires that the periodic updates, EPA in no way certification and signature be built into hazardous secondary material generator intends to limit a generator to the one-time notification that EPA is decide whether a reclaimer is conducting evaluations only every three requiring for the exclusion. acceptable. Therefore, we disagree with

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those commenters who stated that On the other hand, a few commenters maintained at a generator’s headquarters requiring a certification would were opposed to a documentation or at another off-site location. For this constitute a significant new burden. requirement. These commenters cited reason, EPA is requiring that Rather, EPA believes that requiring a the confidential and proprietary nature documentation must be made available, hazardous secondary material generator of the audits and reports used by upon request by a regulatory authority, to certify the reasonable efforts generators for making reasonable efforts within 72 hours, or within a longer condition would provide them the and stated they did not believe they period of time as specified by the flexibility to use audits or other should share this information with regulatory authority. We understand information necessary in certifying that regulators. A few commenters, that in the age of near-instantaneous the condition of the exclusion was met. including one state, also argued that a communication, a hazardous secondary We find that the commenter example of certification statement of having made material generator that performed an existing practice of sending a letter reasonable efforts, signed by an reasonable efforts prior to transferring with audit results to an audited facility authorized representative of the hazardous secondary materials should would need to include the certification generator company, would provide be able to retrieve documentation with language in 40 CFR 261.4(a)(24)(v)(C)(2) adequate documentation that reasonable relative ease. We also note that time in order to meet the reasonable efforts efforts were made. One state commenter frames for producing documentation are condition. also suggested that it would be difficult generally determined by regulatory for states to enforce the requirement of authorities on a case-by-case basis and Comments: Documenting of Reasonable documentation, presumably because time frames are clearly outlined by Efforts EPA proposed that ‘‘any credible authorities within RCRA Section 3007 While EPA proposed that generators evidence available’’ could be used to information request letters. demonstrate that the condition is met. conduct reasonable efforts before C. Financial Assurance Requirement sending hazardous secondary materials EPA’s Response: Documenting In EPA’s March 2007 supplemental to the reclamation facility, we did not Reasonable Efforts proposal, EPA proposed that propose that documentation records After evaluating the comments, EPA reclamation facilities receiving and must be kept of such demonstrations. has concluded that it is important for recycling hazardous secondary materials However, EPA requested comment on hazardous secondary material under the transfer-based exclusion be whether to require hazardous secondary generators to produce documentation to required to demonstrate financial material generators to maintain demonstrate that the reasonable efforts assurance in accordance with the documentation at the generating facility condition has been met prior to requirements of subpart H of 40 CFR demonstrating that the reasonable transferring hazardous secondary part 265. As part of this proposal, EPA efforts condition was satisfied prior to materials to a reclamation and/or sought comment on whether the transferring the hazardous secondary intermediate facility. We do not believe existing subpart H requirements should materials to a reclamation facility. No it is necessary to mandate that, for be modified in some way specifically for form of documentation or format was example, audits are specifically required reclamation facilities affected by the specified, although EPA did cite audits for documentation and we prefer to proposed exclusion. EPA also requested as one type of documentation that could maintain some flexibility in terms of the comment on whether EPA should tailor be relevant. Additionally, EPA format for documenting the condition the costing requirements associated requested comment on whether based on commenter input and the with the subpart H financial assurance hazardous secondary material knowledge that each reasonable efforts requirements. Because of these generators should be required to inquiry will be unique. This flexibility comments, EPA has made several maintain certification statements that for documentation is also in response to revisions to the financial assurance reasonable efforts were conducted for commenter concern about the condition, as explained below. each reclamation facility to which the confidentiality of audits. We do not Comments: Financial Assurance generator transferred the hazardous believe that this flexibility will in any secondary materials to be reclaimed. way impact the ability of regulatory Many commenters supported EPA’s A majority of commenters supported authorities to determine whether the proposal that reclamation facilities a requirement that generators maintain condition is satisfied. We believe that receiving and recycling hazardous documentation of reasonable efforts. A the certification statement is critical for secondary materials under the transfer- few commenters asked that ensuring accountability for satisfying based approach be required to documentation be kept on-site, while a the condition and that the act of making demonstrate financial assurance in few commenters asked that the reasonable efforts is in fact genuine. We accordance with the current documentation could be kept at a believe this requirement helps requirements of subpart H of 40 CFR headquarters or other off-site location. generators support their position that part 265 in order to demonstrate that the Other commenters specifically hazardous secondary materials have not hazardous secondary materials are not requested that EPA not specify a been discarded and helps regulators being discarded. Commenters argued location for the documentation. determine whether a generator has that without a codified financial Commenters in favor of this requirement satisfied this condition. Since updates assurance requirement, recyclers that stated that documentation would be of reasonable efforts are required at a mismanage hazardous secondary necessary for showing the basis for the minimum of every three years, EPA materials could simply close their doors reasonable efforts determination, as well believes that such generators should (as has happened previously) and as for improving the enforceability of maintain documentation for a minimum abandon their hazardous secondary the condition. A few commenters of three years to show that the materials, leaving an environmental suggested that documentation be requirement to update reasonable efforts problem for the public to address and maintained for three years and one has been satisfied. imposing the financial burden of industry commenter asked that EPA set We understand that audits and cleaning up recycling facilities on states a time requirement specifying how long evaluations of reclamation facilities are and local authorities, which may not such documentation must be kept. not always kept on-site and may be have the resources to do so.

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Commenters also noted that EPA’s intermediate facilities, which are successful recycling study indicated environmental problems study shows included in the final rule) operating that one of the main reasons that that the primary cause of damage under the transfer-based exclusion is generators audit recyclers is to evaluate incidents has been the business failure appropriate and reasonable for the their financial health and resources to of recycling facilities. Without financial Agency to determine that the hazardous respond to accidents or other problems assurance, the commenters argue that secondary materials managed at these that could cause adverse environmental states and taxpayers have been left with facilities are not discarded and is or human health consequences. This is the bill for cleaning up these abandoned supported by the findings of the primarily because of the joint-and- sites. Finally, these commenters stated recycling studies conducted as part of several liability provisions of CERCLA, that a recycling facility that does not this rulemaking effort. Financial under which a generator becomes a meet the financial test, cannot obtain an assurance as a condition will ensure ‘‘responsible party’’ obligated to pay (in insurance policy or other financial that the reclamation and intermediate part or in whole) for remediation instrument, and does not have the facilities either have the financial expenses if (in this example) a recycler resources to establish a trust fund or wherewithal themselves, as to whom he sent recyclable hazardous other mechanism, should not be demonstrated by qualifying for self secondary materials were to create handling hazardous secondary materials insurance under the financial test, or contamination problems, but lacked the under the conditional exclusion. that funds from a third party will be resources to pay for the cleanup. Other commenters supported EPA’s available to ensure that the hazardous Because American manufacturers proposal on financial assurance, but secondary materials will not be have considerable experience with these also made suggestions for modifications. abandoned. An owner or operator who types of CERCLA liability issues, One commenter recommended that a must fully fund a trust to cover the evaluating the financial health of the financial assurance program be retirement cost estimate will be careful reclamation facility before shipping developed specifically for reclaimers. A not to discard the hazardous secondary recyclable hazardous secondary few commenters recommended that materials so that he may recover the materials to them has become a standard reclamation facilities taking advantage funds from the trust. Sureties, banks business precaution for responsible of the exclusion maintain a closure plan providing letters of credit and insurers generators. The condition for financial that would be available for review, upon will screen applicants to ensure that assurance thus can be seen as a way of request, that substantiates and verifies they are only providing assurance for addressing the same concern, thus the amount of financial assurance good risks who are unlikely to abandon ensuring that the reclamation and required. or discard such materials, thus intermediate facility owner/operators Still other commenters stated that demonstrating that the hazardous who operate under the terms of this reclamation facilities that receive secondary material is not being exclusion are financially sound and will hazardous secondary materials from off- discarded. As noted by the commenters, not abandon or otherwise discard their site generators under the transfer-based at least 138 of the 208 damage cases hazardous secondary materials. approach should not be held to the same were firms that had gone out of business Thus, EPA disagrees with the financial assurance standards as and abandoned the ‘‘hazardous commenters who argued that recycling facilities with permits to manage secondary material,’’ a material that hazardous secondary materials is, as a hazardous waste. Instead, the financial they presumably believed could be general matter, the same as processing assurance requirements for recycling reclaimed. raw materials for beneficial use. Because facilities should reflect the relatively In addition, the market forces study of the nature of these materials (i.e., lower risks associated with the indicates that recyclers of hazardous hazardous spent materials and listed by- manufacturing/recycling activities. secondary materials can behave products and listed sludges), they are Commenters claimed that reclamation differently from traditional frequently more difficult to process than facilities are essentially processing raw manufacturers due to differences in the most raw materials, and the nature of materials for beneficial use as opposed economic forces and incentives the economics of the transfer of these to RCRA-permitted facilities that are involved in recycling. Unlike materials can create an incentive for treating, storing, and disposing manufacturing, where the cost of raw discard. Requiring financial assurance is hazardous waste. materials or intermediates (or inputs) is essential for helping to define those Finally, some commenters disagreed greater than zero and revenue is situations where the hazardous completely with EPA’s approach to generated primarily from the sale of the secondary material is not being financial assurance. Commenters stated output, some models of hazardous discarded. that EPA lacks the authority to subject secondary materials recycling involve However, EPA agrees that some facilities to the requirements or generating revenue primarily from adjustments to the existing 40 CFR part conditions when using hazardous receipt of the hazardous secondary 265 financial assurance requirements secondary materials in production materials. This situation can lead to would help better tailor them to operations in which these materials are over-accumulation and abandonment of hazardous secondary material never discarded. Commenters stated hazardous secondary materials, reclamation and intermediate facilities. that proposed conditions for the particularly in cases where the product The current hazardous waste financial exclusion do not define the absence of of the recycling process has low value, assurance regulations include discard and would effectively impose a the prices are unstable, and/or the firm provisions (such as post-closure) not waste management requirement upon a has a low net worth. appropriate to hazardous secondary non-waste. By requiring financial assurance, the material units, and the terminology is public and federal, state and local directed towards permitted TSDFs. EPA EPA’s Response: Financial Assurance governments can have confidence that also agrees that the regulations need to EPA finds those comments that the recycler’s business model takes be more explicit as to the support the financial assurance these market factors into consideration documentation requirements for the condition persuasive and agrees with and that it will therefore not abandon financial assurance cost estimate. The their conclusions. Requiring financial the hazardous secondary materials, even financial assurance requirements in 40 assurance for reclamation facilities (and if unforeseen market changes occur. The CFR part 265 subpart H in turn

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reference and rely on certain ensure reclaimers properly manage and We believe that hazardous secondary requirements in the 40 CFR part 265 recycle the hazardous materials. materials exported for legitimate subpart G closure regulations. Although After considering the comments reclamation in accordance with today’s the hazardous secondary material units received, EPA is not allowing reclaimers final rule are not discarded and, thus, are not required to undergo Subtitle C to manage manifested federal hazardous not solid wastes and, therefore, we have closure, some of the provisions of 40 waste under the exclusion. Although no basis for prohibiting exports when a CFR part 265 subpart G are important to this provision may have increased hazardous secondary material generator implementing 40 CFR part 265 subpart recycling opportunities, the fact that the complies with the regulatory H and need to be clarified. As a hazardous secondary material generator requirements. convenience to the regulated manages the hazardous secondary We also disagree with commenters community, EPA has placed the materials as manifested hazardous who believe today’s rule runs contrary financial assurance requirements wastes would have decoupled the to international agreements controlling applicable to hazardous secondary exclusion from the underlying rationale the movement of hazardous waste. We materials in a stand-alone regulation that the materials are not discarded. note the U.S. is an OECD Member and is, therefore, legally bound to comply (see 40 CFR part 261 subpart H). E. Imports and Exports Substantively, these regulations with the OECD’s ‘‘Decision of the generally mirror and include the same In the March 2007 supplemental Council C(2001)107/FINAL, Concerning requirements as the 40 CFR part 265 proposal, the Agency proposed to the Control of Transboundary financial assurance regulations, but they exclude hazardous secondary materials Movements of Wastes Destined for have been condensed and reframed to that are exported from the United States Recovery Operations, as amended by refer to reclamation and intermediate for reclamation at a facility located in a C(2004)20,’’ which provides a facilities rather than TSDFs and to foreign country, provided the hazardous framework for OECD Member countries directly incorporate (rather than just secondary material generator complies to control transboundary movements of referencing) those aspects of 40 CFR with the generator requirements under recoverable waste in an environmentally part 265, subpart G that are necessary the transfer-based exclusion (e.g., sound manner. The Amended 2001 for implementing the financial notification, reasonable efforts, etc.), as Decision recognizes that Member assurance condition. well as notice and consent regarding countries may develop their own planned exports of such hazardous regulations to determine whether or not For further discussion of how the secondary materials. We also requested materials are controlled as hazardous financial assurance condition operates comment on whether the Agency should wastes. Under today’s rule, hazardous and how the provisions map to the allow exports under the generator- secondary materials meeting certain requirements in 40 CFR part 265, see controlled exclusion. conditions and exported for reclamation section VIII.C of today’s preamble. are not solid wastes under U.S. Comments: Scope of Exports D. Ability of Excluded Reclamation regulation. The Agency notes, however, Facility To Accept Manifested Overall, commenters expressed few that once hazardous secondary materials Hazardous Waste concerns with the specifics of the reach the border of the receiving proposed export regulations, although a country, the hazardous secondary In the March 2007 supplemental few disagreed with allowing exports of material is regulated in accordance with proposal, EPA proposed that reclaimers hazardous secondary materials under the receiving country’s laws and receiving hazardous secondary materials the proposed rule altogether. These regulations. In other words, such from generators that continue to manage commenters believed that allowing hazardous secondary materials that are such materials under the current exports of such hazardous secondary not solid and hazardous wastes under hazardous waste regulatory system materials would run contrary to the U.S. hazardous waste regulations would still be able to claim the international agreements (such as may be solid and hazardous wastes exclusion for those hazardous secondary agreements established by the under the receiving country’s materials. In essence, this would allow Organization for Economic Cooperation regulations and, therefore, facilities manifested hazardous waste to be sent and Development (OECD) and the Basel should be aware of the requirements to an unpermitted facility, as long as Convention regarding transport of that competent authorities of receiving that facility met the conditions of the hazardous waste) and may also increase countries may impose. exclusion. the risk of environmental damage in Additionally, some commenters Comments and EPA’s Response: other countries. At least two asserted that today’s rule was Excluded Reclamation Facilities commenters suggested limiting exports inconsistent with the Basel Convention, Accepting Manifested Waste to our bilateral partners only (i.e., a separate multilateral international Canada and Mexico). On the other hand, agreement governing the transboundary Most of the commenters on this issue some industry commenters argued that movements of hazardous wastes. The raised serious concerns about this many companies have worldwide U.S., however, is not a party to the Basel provision, among other things arguing operations and would therefore benefit Convention and thus is not held to the the fact that it would be unworkable. from broader provisions allowing Convention’s agreements (although, Commenters also raised concerns about exports of hazardous secondary because the Convention prohibits the generator’s liability under such a materials to be managed under the exports between a Basel party and a situation, particularly if the reclaimer control of the generator because it non-Basel party, the U.S. may not export failed to inform the generator that its would improve the companies’ ability to hazardous waste to any Basel party, hazardous waste would be managed recycle hazardous secondary materials. absent a bilateral or multilateral under the exclusion. Commenters also agreement with that party). Beyond this noted that the lack of a requirement for EPA’s Response: Scope of Exports point, EPA, in any case, considers ‘‘reasonable efforts’’ on the part of the After considering these comments, the today’s rule to be consistent with Basel generator is contrary to the basic Agency is largely maintaining the export for the same reason that it is consistent premise of the exclusion, which is that provisions as proposed, with some with the OECD agreement described generators will be responsible and minor modifications described below. above.

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In response to comments on allowing be required to submit periodic (e.g., secondary materials was received in that exports under the generator-controlled annual) reports detailing their recycling country for reclamation. exclusion, we note this exclusion is activities, such as information on the Comments and EPA’s Response: Tacit subject to few restrictions and is largely types or volumes of hazardous Consent based on the assumption that hazardous secondary materials reclaimed or other secondary materials are unlikely to be relevant information. In the March 2007 supplemental discarded because they would be With respect to exports, a few proposal, we specified that the closely managed and monitored by a commenters suggested that we add to 40 hazardous secondary material generator single entity. However, this same CFR 261.4(a)(25) a requirement that must receive consent (through EPA) in assumption does not pertain to exports hazardous secondary material writing from the receiving country of hazardous secondary materials generators submit annual reports before the hazardous secondary because EPA would not be able to regarding the exports of their hazardous materials could be exported. Some ensure the close management and secondary materials. This requirement commenters pointed out that under the monitoring by a single entity of would be similar to the requirement existing export regulations for hazardous secondary materials in a currently in 40 CFR part 262 subpart E, hazardous wastes exported to OECD foreign country. Accordingly, we in which primary exporters must submit Member countries, the receiving country believe that hazardous secondary annual reports regarding exports of may use tacit consent to respond to the materials exported for reclamation is hazardous waste. Conversely, a few notification (40 CFR part 262 subpart excluded only if the receiving country commenters urged EPA to finalize the H). Commenters expressed concern that has consented and is provided an export requirements, as proposed with this was a point of confusion, as fully opportunity to determine and ensure at least one commenter explicitly regulated hazardous wastes are eligible that hazardous secondary materials agreeing with EPA’s proposal not to for tacit consent, whereas excluded exported to its reclamation facilities are require annual reports for hazardous hazardous secondary materials would not discarded. secondary material generators. require consent in writing. To eliminate Additionally, we note that in today’s this confusion, EPA has added a rule we have replaced the term EPA’s Response: Annual Reports provision to the regulations that allows ‘‘exporter,’’ which was used in the The Agency agrees with those tacit consent for hazardous secondary March 2007 supplemental proposal, commenters who supported a materials exported to OECD Member with the term ‘‘hazardous secondary requirement for hazardous secondary countries similar to that allowed for material generator.’’ This is because, material generators to submit to EPA hazardous wastes under 40 CFR part under the exclusion for hazardous annual reports regarding the exports of 262 subpart H. We note that Canada and secondary materials exported for their hazardous secondary materials. We Mexico, though OECD Member reclamation (today’s 40 CFR believe that such a requirement will countries, typically require written 261.4(a)(25)), the ‘‘exporter’’ is required help determine that hazardous consent for exports to their countries. to comply with the generator secondary materials exported for For a detailed description of today’s responsibilities listed under the reclamation are handled as commodities exclusion for hazardous secondary transfer-based exclusion (such as and not discarded. We have, therefore, materials exported for reclamation, see reasonable efforts), as well as notice and added a provision to 40 CFR section VIII.C.5. of today’s preamble. consent and annual reports. By 261.4(a)(25) requiring hazardous F. Notification and Other Recordkeeping replacing the term ‘‘exporter’’ with secondary material generators who and Reporting Requirements ‘‘hazardous secondary material export hazardous secondary materials to EPA proposed a total of three generator,’’ we are clarifying that for file a report with the Office of recordkeeping and reporting hazardous secondary materials exported Enforcement and Compliance requirements in the March 2007 for reclamation, the hazardous Assurance 19 that summarizes the types, supplemental proposal: (1) A one-time secondary material generator is quantities, frequency, and ultimate notification to be submitted by responsible for notice and consent and destination of all hazardous secondary hazardous secondary material for submitting annual reports. We materials exported for reclamation generators and reclaimers (required for would also like to clarify that during the previous calendar year. Such both the generator-controlled and the intermediate facilities can still be used reports would document the total for exports (as with the transfer-based transfer-based exclusions); (2) for the amount of hazardous secondary exclusion), but the generator, not the transfer-based exclusion, a requirement materials exported during the calendar intermediate facility, must comply with for both the hazardous secondary year, which is often not the same as the the notice and consent and annual material generator and reclaimer to amount specified in an export notice. report requirements. This is because the maintain for three years records of all Such a report would also enable EPA to intermediate facility cannot perform the off-site shipments of excluded compare actual shipments in the annual generator responsibilities under the hazardous secondary materials (either report against proposed shipments in transfer-based exclusions and, therefore, sent by the generator or received by the the export notice to ensure that the cannot perform the duties of the reclaimer); and (3) notice and consent shipments occurred under the terms ‘‘exporter’’ under this rule. We also note for hazardous secondary materials approved by the receiving country. that this exclusion specifically exported for reclamation in foreign Finally, such a report would enable EPA references the condition in countries. to provide summary information, if § 261.4(a)(24)(iv) that recycling be requested by a receiving country, that Comments: General Recordkeeping and legitimate as specified in § 260.43. could assist the receiving country in Reporting Requirements Comments: Annual Reports determining what amount of hazardous Many commenters supported In the proposed rule, we solicited increasing the recordkeeping and 19 The Office of Enforcement and Compliance comment on whether facilities Assurance (OECA) is the office within EPA that reporting requirements in order to managing hazardous secondary implements the notice and consent process for adequately monitor compliance with the materials under the exclusions should exports. exclusions and to measure increases in

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safe hazardous waste recycling. because those who chose not to notify Comments: Format of Notification Alternatively, some commenters urged would likely evade oversight for many In the March 2007 supplemental EPA to finalize the requirements as years and, if caught, could simply proposal, EPA requested comment on proposed, cautioning that onerous regard the ‘‘paperwork violation,’’ and whether the notification should be reporting and recordkeeping possible penalty for that violation, as a submitted in a particular format and requirements would discourage cost of doing business. These discussed the option of using the facilities from taking advantage of the commenters maintained that the failure Subtitle C Site Identification Form (EPA exclusions. A few commenters of a hazardous secondary material Form 8700–12) to collect the questioned EPA’s authority for generator or reclaimer to provide information. By far, the majority of including recordkeeping and reporting notification is a strong indication that commenters were in favor of using the requirements altogether; these these entities are either unaware of or Site ID form, pointing out that EPA commenters argued that, since trying to circumvent the regulatory would effectively minimize burden by hazardous secondary materials are not requirements, in both cases possibly leveraging this form because it is solid wastes and thus not subject to increasing the likelihood for already familiar to the regulated regulation, recordkeeping and reporting environmental damage. Therefore, these community. Of the very few requirements should not apply. commenters argued that failure to notify should be regarded as more serious than commenters opposed to using the Site EPA’s Response: General Recordkeeping a reporting violation and should, ID form, some argued that the form was and Reporting Requirements therefore, remove the excluded status of not appropriate for collecting EPA agrees with the majority of the hazardous secondary materials. information on hazardous secondary commenters and believes that additional Conversely, some commenters materials because it is primarily used to recordkeeping and reporting supported EPA’s proposed approach, collect information regarding hazardous requirements are necessary to enable agreeing that if an entity fails to notify, wastes. However, other commenters effective and credible oversight. We it does not necessarily indicate that the thought the Site ID form was therefore consider the recordkeeping hazardous secondary materials were appropriate because it is currently used and reporting requirements in today’s discarded and, therefore, should not to collect information on other types of rule to be the minimum information automatically affect the excluded status recycling activities not subject to full necessary to determine that hazardous of the materials. Subtitle C regulation, such as used oil secondary materials are reclaimed and and universal waste activities. Finally, not discarded. Some of the EPA’s Response: Notification as a some commenters supported use of the recordkeeping requirements that we are Condition of the Exclusion Site ID form because it would result in finalizing today are discussed in detail At issue here is not the requirement standardized and consistent data that within other relevant sections of today’s to submit a notification, but rather the users could electronically access preamble (see section XVII.B. for our consequences an entity would face for through EPA’s databases. failing to notify. Notification as a response to comments on EPA’s Response: Format of Notification documentation and certification of requirement under the authority of reasonable efforts and section VII.C. for RCRA section 3007 of the exclusion EPA agrees with the majority of a detailed description of financial means failure to notify would constitute commenters and is requiring hazardous assurance). This section focuses on our a violation of the notification secondary material generators, tolling response to comments regarding the regulations. On the other hand, contractors, toll manufacturers, notification requirement and, for the notification as a condition of the reclaimers and intermediate facilities transfer-based exclusion, the exclusion means failure to notify would managing hazardous secondary requirement that the generator maintain potentially result in the loss of the materials to use the Site ID form (EPA confirmations of receipt of hazardous exclusion for the hazardous secondary Form 8700–12) when notifying in secondary materials from the materials (i.e., the hazardous secondary accordance with today’s rule. We reclamation facility and intermediate materials would become solid and believe that the Site ID form will facility. hazardous wastes and subject to full provide standardized data, while Subtitle C regulation). In context with minimizing the collection burden Comments: Notification as a Condition this issue, EPA considered the intent of because many facilities notifying under of the Exclusion the notification, which is to provide today’s rule are already familiar with In the March 2007 supplemental basic information to regulatory agencies the form and will not need to invest proposal, EPA noted that the one-time about who will be managing hazardous resources in learning a new form and notification requirement under the secondary materials under the process. EPA also agrees with authority of RCRA section 3007 would exclusions. This basic information commenters who stated that the form is not be a condition of the exclusions, and enables regulatory agencies to appropriate for today’s rule, since it that failure to notify, while constituting administer oversight and set already collects information on other a violation of the notification enforcement priorities, but does not types of recycling activities. However, regulations, would not affect the allow regulatory agencies to directly EPA will modify the current Site ID excluded status of the hazardous determine that hazardous secondary form in order to accommodate the secondary materials. materials were discarded. In other notification requirement for today’s A number of commenters disagreed words, a generator or reclaimer could rule. with this rationale and argued instead fail to notify yet still be legitimately that the notification requirement should recycling their hazardous secondary Comments: Types of Information in be made a condition of the exclusions. materials according to the conditions of Notification These commenters stated that, as the exclusion. Therefore, EPA is In the March 2007 supplemental proposed, the notification requirement retaining notification as a requirement proposal, EPA proposed that generators would create an unintended incentive under the authority of RCRA section and reclaimers of hazardous secondary for hazardous secondary material 3007, and, thus, notification is not a materials include in the notification the generators and reclaimers not to notify, condition of today’s exclusions. name, address, and EPA ID number (if

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applicable) of the generator or reclaimer; documented as part of the requirement Furthermore, as one state commenter the name and number of a contact for hazardous secondary material said, some generators managing person; the type of hazardous secondary generators to keep records of all off-site hazardous secondary materials will go materials that would be managed shipments. out of business and without a steady according to the exclusion; and when We consider the information we are feed of updated information, states have the hazardous secondary materials requiring in the notification under no way of knowing which generating would begin to be managed in today’s rule to reflect what responsible facilities have closed and, thus, are accordance with the exclusion. Many companies would routinely collect as unable to ensure that their hazardous commenters, particularly states, argued part of their normal business operations. secondary materials were reclaimed and that this information was insufficient to For example, responsible companies not discarded. This leaves states acutely monitor hazardous secondary material track quantities of valuable commodities vulnerable to costs incurred from generators and reclaimers adequately that are managed on-site or shipped off- potential environmental damage caused and, instead, suggested additional types site and, thus, we believe reporting by abandonment of the hazardous of information to include in the quantities of hazardous secondary secondary materials. notification, such as quantity of the materials managed in the notification Other commenters noted that periodic hazardous secondary materials managed will not present an undue burden. notifications would allow public under the exclusion, the name and EPA Furthermore, we note that EPA agencies to compile credible ID number of the reclaimer receiving the currently requires notification under information regarding hazardous hazardous secondary materials and a certain of the 261.4 exclusions, such as secondary materials recycling that can description of the recycling process. for spent materials generated and be used to demonstrate success, target These commenters argued that recovered within the primary mineral additional recycling opportunities, and additional information was important to processing industry (40 CFR improve the public’s understanding and monitor compliance of the facilities 261.4(a)(17)) and for hazardous acceptance of recycling practices. One with the exclusions and to measure secondary materials used to make zinc commenter also supported a clear increases in safe hazardous secondary micronutrient fertilizers (40 CFR requirement to file periodically in order materials recycling. 261.4(a)(20)) and, thus, we do not agree to reduce confusion regarding when to On the other hand, some commenters with those commenters who believe that re-notify and also to ensure that the urged EPA to retain the basic the notification requirement is information was kept accurate and information in the notification as inconsistent with the existing solid current. proposed. These commenters waste exclusion requirements. On the other hand, some commenters questioned how additional information For a detailed discussion on the urged EPA to finalize the notification would assist with defining discard and notification requirement that EPA is requirements as proposed and stressed also noted that EPA, historically, has finalizing today, see sections VII.C. and that numerous recordkeeping and not required notification for the existing VIII.C. reporting requirements may inhibit self-implementing exclusions from the Comments: Periodic Reporting facilities from taking advantage of the definition of solid waste located in 40 exclusions, thereby discouraging further CFR 261.4. In the March 2007 supplemental increases in recycling. proposal, EPA proposed that hazardous EPA’s Response: Types of Information secondary material generators and EPA’s Response: Periodic Reporting in Notification reclaimers submit a one-time In considering these comments, EPA After carefully considering these notification, but asked for comment on reflected on the intent of the notification comments, we agree with those whether facilities using the exclusion requirement, which is to provide basic commenters who support requiring should be required to submit periodic information to regulatory agencies about additional information in the (e.g., annual) reports detailing their who is managing hazardous secondary notification in order to monitor recycling activities. materials under the exclusions in order compliance with the exclusions Several commenters supported to monitor compliance with the adequately. We believe today’s requiring periodic reports (or periodic exclusions. As commenters noted, with notification requirement reflects the notification). These commenters argued a one-time notification approach, there minimum amount of information that data collected in a one-time is no assurance that the information needed to identify which facilities will notification would become obsolete very collected in EPA’s databases over time be managing hazardous secondary quickly and would likely require will accurately reflect facilities that are materials under today’s rule in order to substantial investment in order to ‘clean managing hazardous secondary enable regulatory agencies to administer up’ the information before it could be materials according to the exclusion. oversight and ensure that hazardous used, a resource burden that would Therefore, the Agency can imagine secondary materials are reclaimed and likely fall on the states. For example, instances where precious resources are not discarded. We, however, did not over time, some facilities that originally required to be spent on ‘cleaning up’ the include suggested data elements that submitted a one-time notification would data before regulatory authorities can might be difficult or complex to collect, cease managing hazardous secondary use it to identify facilities who are such as a description of the recycling materials according to the exclusion. currently managing hazardous process, and did not include Some commenters argued that, by using secondary materials under the information that is more appropriately a one-time notification approach, it exclusions. With a one-time documented and maintained at the would be a challenge to identify these notification, we can also foresee facility. For example, some commenters facilities and, subsequently, a challenge problems where regulatory agencies suggested adding a requirement that to compile a list of facilities who are spend time and resources monitoring generators indicate the identity of the currently managing hazardous compliance at facilities that have since reclaimer receiving their hazardous secondary materials according to the stopped managing hazardous secondary secondary materials for reclamation; exclusions, thereby inhibiting the states’ materials at some point in the past. This however, under today’s transfer-based ability to monitor compliance at these inefficient use of resources would serve exclusion, this information is already facilities. to lower the effectiveness of regulators

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to monitor compliance overall and March 1 of each even-numbered year materials did in fact reach the reclaimer could potentially increase the risk of thereafter. We chose the two-year time (or each reclaimer, if reclamation occurs environmental damage from abuse of frame to reflect both commenters’ at separate facilities) and any today’s exclusions. suggestions (of those who supported intermediate facility as originally EPA further believes that periodic reporting, most suggested intended and were not discarded. EPA responsibility for submitting and annual or biennial reporting) and to best also agrees with commenters that maintaining updated information lies fit with the biennial reporting process responsible companies would produce with the hazardous secondary material for hazardous wastes (pursuant to 40 and maintain receipts as part of their generators, reclaimers, and intermediate CFR 262.41, biennial reports are due by normal business operations and, thus, facilities that use today’s exclusions. We March 1 of each even-numbered year). the Agency believes this requirement understand arguments made by Since many facilities are accustomed to will not pose an undue burden. The commenters that, as originally the biennial reporting process and likely Agency is not specifying a certain form proposed, the one-time notification have structured their processes around or format for this documentation, but would in effect reverse this the biennial report schedule, we chose instead provides examples of routine responsibility, placing an unreasonable the same calendar date for the business records that would contain the burden on the states and EPA to ‘clean notification requirement in order to appropriate information in section up’ the data every time a regulating allow facilities to leverage their existing VIII.C.4. of today’s preamble and in agency sought to use the information. processes and submit the notification at today’s rule. Instead, the incremental burden to the same time their biennial report is facilities who must submit periodic due. XVIII. Major Comments on Legitimacy notifications is minimal compared to Comments: Confirmation of Receipt A. Codification of Legitimacy Factors the considerable public expense that EPA’s October 2003 proposal to states and EPA would likely incur over In the March 2007 supplemental proposal, EPA requested comment on codify the legitimacy criteria was in time in order to use the information response to the comments that have submitted in a one-time notification. whether hazardous secondary material generators should be required to been made over the years by both Once an initial notification is submitted, industry and states that the existing to re-notify, a facility need only review maintain confirmations of receipt of the hazardous secondary materials by the legitimacy guidance is useful, but the previous notification and either somewhat hard for members of the make changes if necessary or confirm reclaimer. Many commenters expressed support for this requirement, citing that regulated community to know about that the information remains accurate. because it could only be found in EPA has chosen to use the Site ID form responsible commercial recyclers routinely issue receipt confirmations or preamble discussions and guidance. The for this notification because it is March 2007 supplemental proposal standardized, electronically-accessible, ‘‘recycling certificates’’ to assure the generator that its hazardous secondary made some adjustments to the October and familiar to the regulated community 2003 proposal, including a change from and, therefore, will assist facilities by materials reached the intended destination and were not discarded. Of the term ‘‘criteria’’ to ‘‘factors,’’ but left reducing the overall time and effort intact the general intention to codify required to report the information. those who supported the requirement, many argued that EPA should not those legitimacy factors for all recycling. Currently, large quantity generators on specify a specific form of As expected, the Agency received average spend $364 a year on biennial documentation so that facilities could public comments from both state reporting under full Subtitle C leverage existing business practices environmental agencies and from regulation, whereas under today’s rule, already in place to track valuable industry on our approach. an initial notification is estimated to be commodities. A few commenters only a third of that cost, with Comments: Codification of Legitimacy. continued to urge EPA to be conscious subsequent notifications likely costing of the imposition of additional State commenters were unanimously even less.20 EPA has designed the recordkeeping and reporting in favor of codifying the legitimacy notification requirement in today’s rule requirements lest the Agency discourage factors in the regulations. In response to to strike an appropriate balance between recycling of hazardous secondary the October 2003 proposal, twenty-three providing essential information to materials. states expressed their support for regulators, while keeping additional codification. In comments to the March burden at a minimum. EPA’s Response: Confirmation of 2007 supplemental proposal, two We are convinced of the validity of Receipt additional states supported codification the above arguments raised by We agree with commenters who of the proposed factors. All twelve states commenters in support of periodic support requiring confirmation of that commented on legitimacy in both reporting and agree that the limitations receipts and are, therefore, adding to 40 proposals expressed their strong support of a one-time notification approach CFR 261.4(a)(24) a requirement that for codification in both their 2003 and would undermine the purpose of the generators maintain confirmation of 2007 comments. notification. Therefore, EPA is requiring receipts from reclaimers and States have long advocated for hazardous secondary material intermediate facilities for all off-site establishing regulations that specifically generators, tolling contractors, toll shipments of excluded hazardous address the legitimacy of recycling. In manufacturers, reclaimers, and secondary materials for a period of three response to EPA’s proposals, many intermediate facilities managing years. Under today’s rule, hazardous states commented that they are hazardous secondary materials to notify secondary materials may be transferred currently relying on the concept of the Regional Administrator prior to to intermediate facilities for storage or, legitimacy as laid out in definition of operating under the exclusions and by where reclamation consists of multiple solid waste preambles and in the 1989 steps occurring at separate facilities, ‘‘Lowrance Memo’’ guidance because 20 Estimates are from the Regulatory Impact Analysis for U.S. EPA’s 2008 Final Rule may be transferred to more than one they are the best sources of information Amendments to the Industrial Recycling Exclusions reclaimer. This requirement would that can be used in evaluating a from the Definition of Solid Waste. confirm that the hazardous secondary recycling operation. Codification is a

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priority to the states because, as a between implementing agencies. Several having a set of specific tests and having regulation, the requirement for recycling of these commenters also stated that the flexibility needed for a requirement to be legitimate would be better known they also valued the flexibility of the that applies to the range of recycling and understood by the regulated structure of the Lowrance memo and practices in various industries in community and it would be easier for stressed the importance of the codified different industrial or commercial states to monitor compliance. One legitimacy factors retaining that settings. commenter stated that it makes more flexibility. Therefore, in response to comments, sense to implement a regulation than a In addition, several more industry the discussion of legitimacy in today’s collection of statements found in commenters stated that they saw the preamble describes more clearly what guidance. value in codifying the legitimacy factors EPA means by the terms we use in the Industry commenters, on the other and could support its codification under regulatory text for this element of the hand, were split on the issue of certain conditions. The suggested final rule. The Agency also is providing codification. Including comments from conditions included the codification of more examples of both legitimate and both the October 2003 proposal and the only the two proposed mandatory sham recycling than were included in March 2007 supplemental proposal, just factors, codification of the factors in the discussions of the individual factors over half of the industry commenters conjunction with finalizing what we in the preambles for the October 2003 opposed codification of the legitimacy called the ‘‘broader exclusion’’ option in proposal and March 2007 supplemental factors, although they tended to express the October 2003 proposal, and proposal to illustrate the meaning of the support in their comments for the codification of legitimacy factors to be legitimacy factors. The Agency also is purpose and goals of the legitimacy used only with the definition of solid stressing the importance of case-by-case factors and agree with the goal of waste exclusions that were included determinations that are based on the identifying which processes are true within the supplemental proposal in facts of a specific situation. recycling and which are sham recycling. March 2007. B. Effect on Current Determinations of Several industry commenters stated that EPA’s Response: Codification of Legitimate Recycling Activities the guidance is working well already Legitimacy. and many of those opposed to In the March 2007 supplemental codification expressed concern that if In today’s final rule, EPA is codifying proposal, EPA stated its opinion that the the legitimacy factors were codified, the legitimacy factors as a requirement concept of legitimate recycling they would lose the flexibility in the for today’s exclusions and for the non- originally proposed in October 2003 is guidance that allows the factors to apply waste determinations, but not for all not substantively different from our to many varied industrial sectors and recycling. To avoid confusion among longstanding policy, as articulated in processes, automatically becoming more the regulated community, as well as the the 1989 Lowrance Memo and stringent. Another concern expressed by state and other implementing regulatory subsequent preambles. We stated that the commenters regarding codification agencies about the status of recycling we were simply reorganizing, of the legitimacy factors was that, in under the existing exclusions, EPA is streamlining, and clarifying the existing their view, the terms used in the not codifying the legitimacy factors as legitimacy principles. Thus, we stated regulatory text are too ambiguous and specifically applicable to existing in the March 2007 supplemental should be clarified before they can be exemptions in today’s final rule. In proposal that we believe that the part of a regulation. These commenters developing the codified legitimacy regulatory definition of legitimate argue that codification of the factors language, we did not intend to raise recycling, when applied to specific without addressing these concerns questions about the status of legitimacy recycling scenarios, would result in would automatically be more stringent determinations that underlie existing determinations that were consistent than having guidance, thereby exclusions from the definition of solid with EPA’s earlier policy. We went on inappropriately inhibiting legitimate waste, or about case-specific to say that we did not believe the recycling. determinations that have been made by regulated community or implementing About one-third of the forty-two EPA or the states. Current exclusions agencies would need to revisit previous industry commenters on the issue of and other prior solid waste legitimacy determinations. However, we whether or not to codify backed the determinations or variances, including did request examples of determinations codification of the legitimacy factors. determinations made in letters of which could be impacted by the Many of these commenters represented interpretation and inspection reports, codification. segments of the waste management remain in effect. Comments: Relationships With Existing industry, but a number of In codifying the legitimacy provisions Determinations representatives of generating industries for the exclusions and non-waste also made this comment. The industry determinations in today’s final rule, Commenters expressed concern that, commenters that supported codification EPA has taken into consideration all the in spite of EPA’s intentions, the stated that they did so because it would comments it received in response to the codification could prompt provide clarity, consistency, and October 2003 proposal and March 2007 implementing agencies to revisit past predictability by making it more supplemental proposal on the structure legitimacy determinations. In addition, apparent which hazardous secondary of the legitimacy factors, as well as on comments on the October 2003 materials and processes are covered by the individual factors themselves and proposed rule suggested that the recycling exclusions. One has made the appropriate changes to the implementing agencies could interpret commenter noted the value in the factors to address those comments. the proposed regulatory text as meaning legitimacy factors going through the In response to a general comment, that a recycling activity must satisfy all notice and comment process since they EPA is aware of the comments that each four of the factors to be considered are being used by the states in of the terms in the legitimacy legitimate. Several commenters on the implementation of the regulations and regulations should be more clearly March 2007 supplemental proposal another expressed an expectation that defined and the suggestions for specific stated that legitimacy should not apply the codified requirements would lead to tests for each of the factors. We are, to the existing recycling exclusions in more uniformity in interpretation however, seeking a balance between the current regulations and others were

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concerned that codification may lead of legitimate recycling for the purposes to someone. Certain commenters implementing agencies to consider only of the exclusions and non-waste requested that EPA provide additional the four factors and not consider other determinations being finalized today. information on how it defines these key information about the recycling terms and, while there was some C. Revised Structure for the Definition of activity. disagreement with the specifics laid out Legitimate Recycling in the preamble, there was little EPA’s Response: Relationships With In the March 2007 supplemental disagreement with the basic overarching Existing Determinations proposal, we proposed a new structure concepts. Regarding the existing exclusions in for the definition of legitimate recycling. Although there was support for the the regulations, EPA acknowledges that, The first part consisted of those factors structure for legitimacy that was in establishing a specific exclusion, we that must be met, which included a proposed in the March 2007 have already determined in the requirement that the hazardous supplemental proposal, most states, the rulemaking record that the specific secondary materials being recycled environmental community, and the recycling practice is excluded from the provide a useful contribution to the waste management industry argued that definition of solid waste provided all recycling process or to the product of all four of the factors should be the conditions of the rule are met. the recycling process and a requirement mandatory requirements-that is, they However, the Agency has always that the product of the recycling process must all be met for the recycling activity enforced its rules on the basis that any be valuable. EPA considers these two to be considered legitimate recycling. recycling must be legitimate (See U.S. v. factors to be fundamental to legitimate Industry had a more mixed response to Self, 2 F. 3d 1071, 1079 (10th Cir. 1993); recycling and if a recycling process does this issue with some supporting the U.S. v. Marine Shale Processors, 81 F. not meet them, it is sham recycling (i.e., proposed structure and others preferring 3d 1361, 1366 (5th Cir. 1996): Marine treatment or disposal of a hazardous that the factors be finalized as balancing Shale Processors v. EPA, 81 F. 3d 1371, waste under the guise of recycling). factors. Others expressed their opinion 1381–83 (5th Cir. 1996)). This is meant The second part of the proposed that while they preferred non- to prevent a company from claiming to structure included two additional mandatory criteria, the proposed be operating under an existing exclusion factors that must be taken into account approach was reasonable. Several and simply using that as a way to avoid when a legitimacy determination is commenters expressed their preference full RCRA Subtitle C regulation. being made. We explained that while for keeping the legitimacy factors as However, to avoid confusion among these two additional factors are guidance, but stated that if the Agency the regulated community and state and important in determining whether a decided to codify the legitimacy factors, other implementing agencies about the particular process is legitimate, there they preferred the structure as proposed status of recycling under existing may be circumstances under which a in the March 2007 supplemental exclusions, we have decided that the legitimate recycling process might not proposal. focus of this rule should be the specific conform to one or both of these factors. changes it is making to the definition of The two additional factors are whether EPA’s Response: Revised Structure solid waste in the form of the exclusions the hazardous secondary materials are EPA agrees with the commenters on and non-waste determinations finalized managed as a valuable commodity and the importance of the two factors (useful today. Thus, the legitimacy factors whether the product of the recycling contribution and valuable product/ codified in 40 CFR 260.43 only apply to process contains significant intermediate) that were proposed to be the exclusions and non-waste concentrations of hazardous mandatory in evaluating legitimate determination process being finalized in constituents. We note, however, that in recycling and, for this final rule, we this rule and we do not expect cases where a recycling practice does have decided that these two concepts implementing agencies to revisit past not meet one or both of these factors, the are, in fact, at the very core of what it legitimacy determinations based on this hazardous secondary material generator means to recycle legitimately. Therefore, final rule preamble language. and/or recycler should be able to the final regulatory language states in 40 Also, it should be noted that the demonstrate why the recycling is in fact CFR 260.43(b) that ‘‘[l]egitimate regulatory language does not preclude still legitimate. recycling must involve a hazardous other considerations when looking at secondary material that provides a the codified factors for making Comments: Revised Structure useful contribution to the recycling legitimacy determinations. We The public comments on the process or to a product of the recycling recognize that additional information individual factors in the March 2007 process, and the recycling process must about the recycling activity could be supplemental proposal showed that, as produce a valuable product or helpful and could be used when in the comments to the October 2003 intermediate.’’ This statement is assessing the four legitimacy factors and proposal, there continues to be general followed by clauses (1) and (2) that give in making a determination about agreement from industry and state more details on how the Agency defines whether a specific recycling activity is commenters on two factors (useful these concepts. legitimate. In fact, we encourage the contribution and valuable product/ EPA has determined that the other regulated community and implementing intermediate). Commenters were two factors are still important in making agencies to use any and all information virtually unanimous in their agreement legitimacy determinations, but do not about the recycling process to come to that these two factors are crucial necessarily have to be met for the an informed decision on the legitimacy indicators of legitimacy and should be recycling activity to be considered of a hazardous secondary material included in the concept of legitimacy. In legitimate. Instead, the regulations state recycling operation. However, given the other words, there was agreement that that a person making a legitimacy public comment on the October 2003 recycling cannot be legitimate if the determination must consider these two proposed rule and the March 2007 material being recycled does not factors, which are found in § 260.43(c) supplemental proposal, no other factors provide a useful contribution to the of the final language. In stating that the have been identified and we believe that process or to the product and if the factors must be considered, EPA expects the four legitimacy factors codified in recycling process does not yield a that those making legitimacy this rule include the relevant principles product or intermediate that is valuable determinations will evaluate how the

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hazardous secondary materials in described above, has decided upon a Comments: Defining Legitimacy Terms question are managed as compared to course of action that results in a analogous raw materials and how levels compromise between the two For each of the four factors, the of hazardous constituents in their approaches. In section IX of this Agency received public comments that products compare with the levels of preamble, we explain in detail the final focused specifically on the meaning of hazardous constituents in analogous design of the legitimacy factors, which and the difficulties in implementing products. If the generator or recycler includes two factors that must be met these factors when the terms are not determines that one or both of these (useful contribution and valuable accompanied by a test for the hazardous factors are not met, that person should product/intermediate) and two factors secondary material generators and be prepared to explain why their that must be taken into account in recyclers to use when making recycling activity is nevertheless still making an overall legitimacy determinations of legitimacy. For the legitimate. As described in determination. We believe this approach first factor, the Agency received several § 260.43(c)(3) of the regulatory text, in and the attendant regulatory language is comments on the definition of ‘‘useful evaluating the extent to which these clearer than the existing guidance, yet contribution’’ from the October 2003 factors are met and in determining retains enough flexibility to account for proposal. For the second factor, over twenty commenters submitted whether a process that does not meet the variety of legitimate hazardous comments on the definition of one or both of these factors is still secondary materials recycling practices ‘‘valuable’’ in response to the October legitimate, persons can consider the that exist today. protectiveness of the storage methods, 2003 proposal. In addition, the Agency exposure from toxics in the product, the D. Comments on the Specific Factors received several comments on the bioavailability of the toxics in the definition of ‘‘valuable’’ and on the product, and other relevant In developing the legitimacy factors, definition of ‘‘contained’’ related to the considerations. We would note that the the Agency sought a balance between third factor and over twenty comments facility may be requested to demonstrate having a set of specific tests and having on the definition of ‘‘significant’’ in the the legitimacy of their recycling process the flexibility that is necessary to allow fourth factor. We also received some and explain why failure to meet one or the four legitimacy factors to apply to additional comments on the March 2007 both of these factors does not affect the hazardous secondary material recycling supplemental proposal relating to the legitimacy of the recycling process. practices in the many industrial or same definitional terms in each factor. commercial settings to which the factors Comments: Mandatory Factors The comments on these terms will be would be applied. As a result, each of described in more depth in the As part of the October 2003 proposal, the legitimacy factors included a term or discussion below for each of the the Agency solicited comment on terms that drew public comments applicable factors, but, in general, the whether the factors should continue to arguing that the factors were not clearly comments showed a wide range of be used in the same way as the previous enough defined. The underlined terms opinions: Some commenters found the guidance had been used, as factors to be in the following excerpts from the discussion in the preamble to define the balanced or considered in making an regulatory text demonstrate what these terms was adequate and appropriate, overall determination, or whether the terms are: other commenters objected to the terms factors should be structured differently • Factor 1: ‘‘Legitimate recycling as not being clearly defined, while still in the final rule, such as in the form of must involve a hazardous secondary other commenters found the terms to be mandatory requirements that must all be material that provides a useful too subjective to be a useful tool. We met. Based on the comments received contribution to the recycling process or also received comments that suggested on that proposed rulemaking, we to a product of the recycling process.’’ alternative ways to define the terms to proposed a new structure in the March • be clearer or to better meet the Agency’s 2007 supplemental proposal with two Factor 2: ‘‘The recycling process objectives. mandatory factors and two factors that must produce a valuable product or must be taken into account, but not intermediate.’’ EPA’s Response: Defining Legitimacy necessarily met in every situation (72 • Factor 3: ‘‘The generator and Terms FR 14198). recycler should manage the material as Many state implementing agencies a valuable commodity * * * Where The Agency has incorporated the argued that all the factors should be there is no analogous raw material, the ideas generated by the comment process written as mandatory requirements that hazardous secondary material should be into the final rule, as appropriate. The must be met. Most industry commenters contained.’’ final language and decisions regarding (but not all) did not. The main argument the legitimacy factors are laid out below • Factor 4: ‘‘The product of the in favor of making the factors mandatory in this section and in section IX of this recycling process does not contain requirements is that commenters argued preamble, where the final legitimacy significant concentrations of hazardous that this approach would result in language is discussed more fully. constituents [or] contain concentrations legitimacy determinations that are more However, after considering the * * * at levels that are significantly objective and more enforceable. The comments, we have decided that we elevated from those found in analogous main arguments against making all the would not develop specific definitions products.’’ factors mandatory requirements is that or precise tests that hazardous the overall determination is made on a The October 2003 proposal gave some secondary material generators and case-by-case basis, which is often narrative descriptions of these terms to recyclers must use when making facility-specific, and not all legitimate explain what they mean in the context legitimacy determinations. Instead, the recycling can fit into such a rigid of legitimate recycling, but that proposal Agency has bolstered our preamble system. did not provide any concrete tests for discussion on the meaning of these how those specific terms are to be used terms and has included more examples EPA’s Response: Mandatory Factors when judging whether a process and/or than we had in the preambles to the The Agency can see both state and hazardous secondary material meets October 2003 proposal and the March industry viewpoints and, in the end, as these factors. 2007 supplemental proposal.

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EPA’s decision not to include specific process and is intended to prevent the state agency favored allowing the non- bright-line tests for the final legitimacy practice of incorporating hazardous hazardous component of hazardous factors reflects the fact that legitimacy secondary materials within secondary materials to provide the determinations do not lend themselves manufacturing operations simply as a useful contribution and one industry to the application of absolute means of disposing of them. The Agency commenter agreed that not all of the distinctions, especially given the firmly believes that this concept is hazardous secondary material would breadth of recycling practices and crucial to the definition of legitimacy have to contribute for this factor to be recycled hazardous secondary materials and is finalizing it as part of the core met. Another state agency asked us to that exist in industry. The main definition. This factor, along with the clarify that the statement ‘‘not every argument we received for developing second factor described below, must be component of a hazardous secondary specific tests was that, without specific met for any recycling activity to be material would necessarily have to tests, those making legitimacy considered legitimate recycling. The contribute to the product or the process determinations may be uncertain about regulatory text for this factor is found in to meet this criterion’’ was applicable whether their regulatory agency would 40 CFR 260.43(b)(1). only in the context of this factor. agree with that interpretation of the In general, we received much support It has been the Agency’s longstanding recycling scenario. This may lead to for and agreement with the underlying policy that in a legitimacy reduced recycling rates if companies principle of this factor—that the determination not every constituent or choose not to take advantage of the hazardous secondary materials must component in a hazardous secondary exclusions for recycling rather than risk provide some useful contribution to material would have to contribute to a interpreting their activities differently either the recycling process or the product of the recycling process or than the regulator does. recycled product. Commenters asked for intermediate or to the recycling process Although we understand the concerns clarification on a number of issues in order for there to be an overall behind this argument, we are addressing related to this factor, specifically in contribution and this applies to the them by including more discussion and regard to the October 2003 proposal and provision in § 260.43 as well. For explanations of the final factors in the how the economics of recycling is example, the use of hazardous preamble to the final rule. The connected to this factor and how the secondary materials in zinc fertilizer is complexities of defining ‘‘valuable economics of recycling should be considered legitimate recycling when commodity/product,’’ ‘‘useful evaluated. In the March 2007 the zinc, a non-hazardous constituent, is contribution,’’ ‘‘contained,’’ and supplemental proposal, we described the main contribution to the fertilizer. ‘‘significant’’ so that they can be how the economics of recycling relates Another example is the use of CRT glass determined through a bright-line test not only to the useful contribution used in copper smelters as a fluxing and are still appropriate for all factor but, in fact, to all of the factors of agent. In this case, the glass provides a industries, all recycling processes, and legitimacy and explained our thinking useful contribution by facilitating the all recycled hazardous secondary about how evaluating the economics of manufacturing process. Thus, we agree materials are too great for the Agency to recycling transactions should be with those commenters who raised be able to design a simple and undertaken. questions about this issue and are straightforward system of tests to be restating our position here. EPA’s Response: Factor 1—The used in making such determinations. Hazardous Secondary Material Provides Comments and EPA’s Response: Factor The complex regulatory system of tests a Useful Contribution 1—Efficiency of the Process for different types of industries or different processes that would be The Agency is today finalizing this Another issue that was discussed in necessary would not be efficient or factor as part of the core definition of the October 2003 proposal arising in the accessible to most generators, especially legitimate recycling and as a factor that context of useful contribution was the small businesses. must be met for the recycling to be efficiency of a recycling process in In addition, we believe that legitimacy considered legitimate under § 260.43. recovering or regenerating the useful determinations are best made on a case- We also revised the October 2003 component of the hazardous secondary by-case basis, which has always been proposal discussion regarding the material. One example we used was the the case, with the facts of a specific consideration of economics related to recovery of copper from a hazardous situation in hand. In a case-by-case this criterion, and we expanded its secondary material. We stated that determination, a series of specific tests consideration beyond just the useful where the process was reasonably may not be as useful and as accurate in contribution criterion. Today, we are efficient and recovered all but a small determining legitimacy as careful offering further guidance, similar to the percentage of the copper, it looked like consideration of the hazardous March 2007 supplemental proposal, legitimate recycling. However, where a secondary material, the recycling which explains how economics may be small percentage of copper in the process, and the specifics of the considered in making legitimacy hazardous secondary material is situation would be. If a person has any determinations and how it may apply to recovered, sham recycling may be questions as to the legitimacy of a the mandatory factors and the factors indicated. However, we did not discuss particular recycling activity, he can that must be taken into account. recovery rates in the middle range (e.g., always approach the appropriate 50% of copper recovered from a Comments and EPA’s Response: Factor regulatory agency for assistance in particular recycling process) and some 1—Contribution to the Process making a legitimacy determination. commenters asked for clarification, EPA also received comments on our including how the factor applies to Comments: Factor 1—The Hazardous statements in the October 2003 proposal hazardous secondary materials that are Secondary Material Provides a Useful that indicated that not every component contributing to the recycling process Contribution of a hazardous secondary material does either as a carrier or a catalyst. Factor 1 expresses the fundamental or must contribute to the recycling The Agency is clarifying in today’s principle that hazardous secondary process or product of the recycling preamble and regulatory text that the materials must actually be useful (i.e., process in order for there to be an useful contribution of a hazardous contribute positively) to the recycling overall contribution. In particular, one secondary material to the recycling

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process or product can be demonstrated reasons, we are making it clear that the fluctuate, and others argued that it must in a number of ways. We provided a management of recycling residuals is be done on a case-by-case basis. number of different ways such a not a consideration in making EPA’s Response: Factor 2—The material could contribute to the process legitimacy determinations. Instead, as Recycling Process Yields a Valuable in the preamble to the October 2003 part of today’s final rule, we are Product proposed rule (68 FR 61584–61585) and requiring that any residuals that are did not mean to imply that the generated from the recycling process be In general, the Agency agrees with the hazardous secondary material would managed in a manner that is protective commenters who stated that a product’s have to meet all of the examples to of human health and the environment. value can be either monetary or provide a useful contribution. For Specifically, there is a requirement for intrinsic. Clearly, not all valuable example, hazardous secondary materials hazardous secondary material products are sold. For example, many could provide a useful contribution to a generators to make reasonable efforts to legitimate recycling situations exist process by serving as a carrier or ensure that the hazardous secondary where the intermediate or product of the catalyst and the process efficiency materials are legitimately recycled and, recycling process has value and is used would not factor into the demonstration among other things, that the reclaimer on-site, sent off-site to another facility of this factor in this example. manages the hazardous secondary owned by the same company, or even In general, the regulated community materials in a manner that is protective traded between companies. There are a should look to typical industry recovery of human health and the environment, number of already established networks rates to determine if the recycling including how any recycling residuals where hazardous secondary materials recovery rates are reasonably efficient in are managed. Finally, we note that the are exchanged among and across terms of making a useful contribution to generation of residuals that are solid industries. This rule does not interfere the recycling process or product. In wastes are subject to the waste with those ongoing exchanges where addition, it should be noted that EPA characterization and identification such materials are being legitimately would generally look at the quantity or requirements in 40 CFR Part 261 as a recycled. One example of such a the rate of recovery of the overall newly generated waste. program is the U.S. Business Council for process, not the recovery rate of a single Sustainable Development’s by-product step in the process, when analyzing this Comments: Factor 2—The Recycling synergy program which has conducted a factor for legitimacy. For example, if one Process Yields a Valuable Product/ number of regional pilots in which step in the process recovers a small Intermediate diverse industries are brought together to facilitate feedstock and by-product percentage of the constituent, but the This factor is intended to capture the exchanges. No money is exchanged in overall process recovers a much larger fundamental concept that legitimate percentage, the Agency would consider these types of programs. recycling must produce something of We are also clarifying in the the overall efficiency of the recycling value. For the purposes of evaluating process in determining whether regulatory text that the product of the this factor, a product of the recycling recycling process can be either a hazardous secondary materials are process or intermediate would be providing a useful contribution. This commercial product or intermediate, as considered valuable if it can be shown long as it has value to the end user. In assumes that there is enough of the to have either economic value or value target constituent present in the addition, we are further clarifying that that is more intrinsic (i.e., it is useful to the regulated community does not need hazardous secondary materials to the end user, even though it may not be contribute meaningfully to the recycling to evaluate each step in the recycling salable as a product or commodity in activity. process to determine if the final the open marketplace). The regulatory products or intermediates are valuable. Comments and EPA’s Response: Factor text for this factor can be found in 40 Rather, an individual recycler or 1—Residuals CFR 260.43(b)(2). generator would look at its final product In the discussion of useful In general, most commenters agreed or intermediate and must be able to contribution in the October 2003 with the concept that the recycling demonstrate why it has value. proposal, in the context of process process must produce something of We understand the concerns of some efficiency, we stated that a ‘‘pattern of value. Many commenters also stressed commenters that intrinsic value is mismanagement of the residues’’ may be the importance of keeping the concept harder to demonstrate than the value of an indicator of sham recycling (68 FR of ‘‘intrinsic’’ value—that is, a product a product of the recycling process that 61584). We received several comments does not have to be sold to have value. is sold in the open marketplace. While asking us to explain the connection Instead, it can be used as an effective this demonstration is not as between useful contribution of the substitute for a commercial product or straightforward, there are a number of hazardous secondary materials and as a useful ingredient in an industrial ways the end user can demonstrate the management of residues. Several process. However, other commenters intrinsic value of the recycled commenters questioned this statement disagreed, contending that intrinsic intermediate or product. Some examples and disagreed that how a facility value is too subjective to use to include showing that the product of the managed its residues had any bearing on determine compliance. One commenter recycling process replaces an alternative whether the hazardous secondary also thought this factor was redundant product or material that would materials going into a recycling process with the factor that hazardous otherwise have to be purchased or by were being legitimately recycled. secondary materials must provide a demonstrating that a product of the We agree with the commenters who useful contribution and should be recycling process or intermediate meets suggested that the management of deleted. specific product specifications or residuals from the recycling process is Another common concern in the established industry standards. Another not an indicator of whether the comments was how to evaluate whether approach to demonstrating the value of hazardous secondary materials provide the product or intermediate is valuable. a product of the recycling process or a useful contribution and thus is not a Some commenters stressed the intermediate would be to compare its factor in determining whether legitimate importance of evaluating this factor over characteristics (e.g., its physical/ recycling is occurring. For these time, given that markets and prices chemical properties or its usefulness for

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certain applications) with comparable secondary material ‘‘as a valuable does not want to restrict legitimate products or intermediates made from commodity.’’ If an analogous raw recycling and, therefore, in these cases, raw materials. material exists, the hazardous secondary the facility could make a determination Finally, we disagree with the material should be managed, ‘‘at a of legitimacy without meeting this commenter who stated that this factor is minimum, in a manner consistent with factor, but should be prepared to equivalent to the hazardous secondary the management of the raw material.’’ If explain why its recycling is legitimate. material making a useful contribution to there is no analogous raw material, the EPA also believes that this factor can a product or intermediate. It is certainly proposal states that the hazardous be critical when considering whether possible for a recycling process to result secondary material should be hazardous secondary materials are in the production of a valuable product ‘‘contained.’’ legitimately recycled and EPA disagrees or intermediate without the hazardous The response from commenters on with commenters who argued that secondary materials added to the this factor was mixed in response to evaluating ‘‘materials management’’ is process making any contribution both the October 2003 proposal and the outside the scope of RCRA because whatsoever. For example, this would be March 2007 supplemental proposal. hazardous secondary materials are not the case when hazardous secondary Many states and environmental solid wastes due to being excluded. EPA materials are added to the process and organizations commented that the factor believes that the commenters’ argument all of the hazardous secondary should be mandatory and some argued is circular. The hazardous secondary materials, including the hazardous that it should include a strict test. Many materials are excluded only if the constituents, end up in the residuals, commenters from the generating recycling is legitimate. How materials which are discarded, and the materials industry and the waste management are managed is part of determining added to the process provide no benefit industry stated that they support this legitimate recycling. EPA has the whatsoever. This is the essence of sham factor and believe that it is a fair and authority to define legitimate recycling recycling. A vast majority of the reasonable indicator of legitimacy. Some and, therefore, has the authority to commenters saw the need for both industry commenters thought that this require this evaluation. factors and after exploring the concept factor should be mandatory, whereas of legitimate recycling further, we were others commented that the factor should Comments: Definition of Terms in unable to find any examples of neither be codified nor mandatory. At Factor 3 legitimate recycling that did not meet least one commenter stated that the Commenters stated that compliance both of the core factors (i.e., the factor was not necessary because of with this factor is dependent on the hazardous secondary material provides other existing disincentives for regulated community and regulators a useful contribution and the recycling mismanagement. Representatives from understanding what EPA means by it. In process produces a product of value), extractive industries were most strongly nor did any commenters provide us opposed to this factor, stating that EPA the October 2003 proposal, we proposed with such examples. Thus, we are cannot include legitimacy requirements that the factor read, ‘‘[w]here there is no retaining both concepts as factors that on secondary materials that are going to analogous raw material, the secondary must be met in order for a process to be be recycled because they are not in material should be managed to considered legitimate recycling. EPA’s jurisdiction. minimize the potential for releases to the environment.’’ Many commenters Comments: Factor 3—How the EPA’s Response: Factor 3—How the stated that the term ‘‘minimize’’ in this Hazardous Secondary Material To Be Hazardous Secondary Material To Be context was particularly unclear. State Recycled Is Managed Recycled Is Managed commenters argued that the term This factor on the management of Today, we are finalizing this factor as ‘‘minimize’’ did not provide enough hazardous secondary materials was one of the two factors that must be guidance or could be interpreted to designed to illustrate that hazardous considered during a legitimacy allow unclear amounts of hazardous secondary materials that are bound for determination, but not necessarily met. secondary materials to be released, recycling should be managed to prevent We modified the language of this factor leaving room for potential releases into the environment in the since the October 2003 proposal and are mismanagement of that material, same way that valuable commodities finalizing it basically as proposed in the whereas some industry commenters would reasonably be expected to be March 2007 supplemental proposal. asked if this standard meant they would managed. Hazardous secondary EPA has decided that it is most have to meet or exceed controls required materials that are recycled are valuable appropriate to finalize this factor as one for regulated hazardous wastes in their production inputs. As such, we believe of the factors that must be considered recycling operations. Several that such materials should be managed rather than as a mandatory factor. commenters also asked about the term in a way that retains their value and Although we believe that this factor is ‘‘valuable commodity’’ and how prevents significant losses to the an important part of a legitimacy ‘‘valuable’’ is defined. determination because hazardous environment. Hazardous secondary EPA’s Response: Definition of Terms in secondary materials that are not being materials that are mismanaged to the Factor 3 extent that they are released into the managed carefully may be materials that environment are not recycled. the recycler does not value for its EPA agrees that terms for this factor This factor is one of the two process, the factor is not part of what should be more clear to facilitate legitimacy factors that EPA believes the Agency considers the core of compliance. Although we have not needs to be considered. However, in legitimacy. In addition, as discussed in developed a specific test or codified some cases, it may not be clear that the section IX of this preamble, EPA and definitions to explain this factor, we factor is met or it may not be met, yet commenters were able to identify have adjusted some of the language in the recycling activity can still be situations in which this factor is not the factor to address this concern and legitimate. The regulatory text for the met, but the recycling appears to be are providing further explanation of factor can be found in 40 CFR legitimate because the hazardous what we intend by this factor in today’s 260.43(c)(1) and it states that the secondary materials are still being preamble so that it is better understood handler should manage the hazardous managed in a responsible manner. EPA and can be consistently applied.

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In the March 2007 supplemental ‘‘discarded’’ by being incorporated into EPA’s Response: Factor 4—Comparisons proposal, we modified the language for a product made from hazardous of Toxics in the Product this factor to state instead that ‘‘[w]here secondary materials. The factor Today, we are finalizing this factor as there is no analogous raw material, the identifies this situation as being one of the two factors that must be hazardous secondary material should be hazardous constituents that are in a considered during a legitimacy contained.’’ This change addressed the product made from hazardous determination, but not necessarily met. ambiguity of the word ‘‘minimize,’’ as secondary materials when they are not EPA maintains that this factor is an well as state comments that the storage in analogous products, or when important way of determining whether requirements in this factor needed to be hazardous constituents are at a recycling process is, in fact, true better defined. The Agency believes that significantly higher levels in products recycling rather than a ‘‘sham.’’ facilities that value hazardous made from hazardous secondary If hazardous secondary materials with secondary materials as part of their materials than in analogous products a toxic constituent or toxic constituents manufacturing process will contain that contain such hazardous in amounts or concentrations greater those materials to prevent their release. constituents, or when the product than analogous raw materials are simply The term ‘‘contained’’ is also being used exhibits one or more of the hazardous being run through a manufacturing elsewhere in the exclusions being characteristics and the analogous process, it is an indication that those finalized. EPA is defining this term in product does not. An analogous product hazardous secondary materials may be the same way throughout: A recyclable can either be the final product of being discarded in the guise of material is ‘‘contained’’ if it is placed in manufacturing or, in some cases, an recycling. Toxics that are illegally a unit that controls the movement of intermediate in a process. These disposed of in this manner can become that material out of the unit into the hazardous constituents are often called exposure risks and could harm human environment. We also believe that the ‘‘toxics along for the ride’’ (TARs) and, health and the environment. EPA has standard for contained is more clear for if present, could be an indicator of states and industry than the standard to jurisdiction over materials being discard. minimize potential releases to the discarded and, therefore, is requiring environment was in the October 2003 This factor is the second of the two that this factor be considered in proposal. legitimacy factors that EPA believes legitimacy determinations. The factor is We also want to clarify the use of needs to be considered but, in some not one of the mandatory factors several other terms on which we cases, does not need to be met for the because the Agency has identified received comments. These terms are recycling activity to be considered situations where higher levels of toxic discussed briefly here and in more legitimate. We modified the language of constituents may not be relevant or depth in section IX of this preamble, this factor since the October 2003 applicable and, thus, would not be an where the legitimacy factors are fully proposal and are finalizing the factor indicator of ‘‘sham’’ recycling if this described. ‘‘Analogous raw material,’’ basically as proposed in the March 2007 factor is not met, as discussed in section also defined elsewhere in the supplemental proposal. The regulatory IX of this preamble. In these cases, the exclusions, is a raw material for which text for the factor can be found in 40 facility could make a determination of a hazardous secondary material is a CFR 260.43(c)(2) and it states that the legitimacy without meeting this factor, substitute and which serves the same person making the determination but should be prepared to explain why function and has similar physical and should look at the product of the its recycling is legitimate. chemical properties as the hazardous recycling process and compare it to Comments: Factor 4—the Term secondary material. Materials generally analogous products that are made ‘‘Significant’’ and Alternative would not be considered analogous if without hazardous secondary materials. Approaches their chemical makeup were very The person making the determination Many of these comments sought different from one another—particularly should examine the concentrations of further guidance on the meaning of the if the hazardous secondary materials hazardous constituents to learn whether term ‘‘significant’’ in the proposed contain hazardous constituents that the product of the recycling process necessitate management processes that regulatory text, stating that the contains significant concentrations of definition in the proposal was unclear the raw material does not—or if their hazardous constituents when the physical properties are different. or subjective, which may lead to a wide analogous product contains none, range of possible interpretations of the Regarding the term ‘‘valuable whether it contains significantly commodity,’’ EPA believes that term. Commenters also expressed elevated levels of hazardous concern that a definition that is too hazardous secondary materials should constituents when compared to the be managed in the same or similar vague may discourage recycling. In a analogous product that contain such related topic, commenters also manner as raw materials that have been hazardous constituents, or whether it purchased or obtained at some cost. The responded to EPA’s request for exhibits a hazardous characteristic comments on two alternate approaches legitimacy criteria are designed to when the analogous product does not. determine whether a process is like in the October 2003 proposal: (1) An manufacturing rather than like waste The Agency received many comments approach that would establish a ‘‘bright management. We believe that the on the fourth factor in response to both line’’ for complying with the factor by standard for management of the the October 2003 proposal and the specifically defining the terms hazardous secondary materials is March 2007 supplemental proposal. The ‘‘significant amounts’’ and reasonable for helping assess whether comments the Agency received on ‘‘significantly elevated’’ in the disposal in the guise of normal Factor 4 were very mixed, ranging from regulatory text and (2) an approach that manufacturing is occurring. commenters who argued that this factor would require the use of risk assessment should be one of the factors that must tools to determine if a product with Comments: Factor 4—Comparisons of be met to those who stated that the elevated levels of a hazardous Toxics in the Product factor is irrelevant and should not be constituent due to use of hazardous This factor was designed to prevent considered as part of a legitimacy secondary materials in its manufacture hazardous constituents from being determination. process posed a greater risk to human

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health or the environment than the EPA’s Response: Factor 4—Comparing constituents in its product and analogous product made from raw the Products Instead of Hazardous document both that it considered this materials. Secondary Materials factor and the reasons it believes the On the whole, commenters were not The Agency believes that for an entity factor is not relevant. enthusiastic about the two alternative to ensure that hazardous secondary approaches that EPA suggested. Most E. Consideration of Economics in materials are being legitimately recycled commenters stated that a specific test of Legitimacy and not discarded, it needs to know either nature would not be appropriate what happens to the hazardous Comments: Economics Considerations because of the wide variety of recycling secondary materials once they leave the EPA received several comments in situations to which it would have to generator’s control. However, in response to the preamble discussion apply. response to these comments, we are about how to consider economics in the EPA’s Response: Factor 4—the Term clarifying in today’s preamble that the context of making legitimacy ‘‘Significant’’ and Alternative final legitimacy factor allows the entity determinations in the March 2007 Approaches conducting the legitimacy supplemental proposal. EPA did not The Agency believes that designing a determination to make the comparison propose that economic consideration be specific test, such as those described in on ‘‘toxics’’ either between the final codified within the regulatory definition the preamble to the October 2003 products or between the hazardous of legitimate recycling and instead proposal, that is applicable to the many secondary material and the analogous offered guidance on how economic different recycling scenarios possible in raw material it replaces. If the consideration is relevant to determining the exclusions and non-waste comparison of materials going into the the legitimacy of a recycling operation. determinations would be difficult, if not process shows no significant difference EPA received only positive comments impossible. Thus, we agree with those in levels of toxics, the product of the on the preamble discussion about commenters who argued against recycling process will not significantly consideration of economics in adopting such a specific test. Therefore, differ from analogous products in those legitimacy. Specifically, EPA agrees the Agency has more clearly described levels either. In cases where the with commenters who supported our in this preamble to the final rule what generator finds it too complex to position on the following: The it means by ‘‘significant’’ so that compare the product from its recycling economics of recycling are relevant to members of the regulated community process to the analogous product made making legitimacy determinations, the can be confident in their evaluations of from the virgin raw material, it can, economics of recycling are in fact whether their products made from instead, compare the chemistry of the different from traditional hazardous secondary materials contain materials going into the process to manufacturing, a recycling activity can ‘‘toxics along for the ride.’’ Therefore, evaluate this factor. be legitimate if a recycler charges a fee to accept hazardous secondary members of the regulated community Comments and EPA’s Response: materials, economic considerations will neither be discouraged from Relevance of Factor 4 to a Particular need to take into account the recycling nor be forced to seek an Process opinion from a regulatory agency in fluctuations in market prices of raw every case. Details on implementation of Regarding the implementation of this materials, and negative economic factors this factor are in section IX of today’s factor, several commenters raised the can contribute to environmental preamble. concern that many products that are problems, such as speculative made from hazardous secondary accumulation, abandonment, and sham Comments: Factor 4—Comparing the materials do not have analogous recycling. Products Instead of Hazardous products made from raw materials However, EPA received many Secondary Materials because they are always or have always comments from both industry and Most commenters responded been made from a combination of recycling associations that opposed the positively to a change the Agency made primary and in-process materials and October 2003 proposal to codify the in its October 2003 proposal to compare that these are cases where this factor is economics consideration as a separate the product of the recycling process to not relevant to that particular recycling ‘‘factor to be considered.’’ These the analogous product made from raw process. The commenters stated that commenters generally argued that materials rather than comparing the this is especially true in the mineral consideration of economics was hazardous secondary materials to the extraction industries, but also may be inherent within the four legitimacy analogous raw materials. EPA discussed the case in other industries as well. factors (e.g., both of the mandatory this shift in its October 2003 proposal at The Agency is aware that there are factors, as well as the two factors which 68 FR 61586–61587. situations where there may not be must be considered) and, therefore, a However, several commenters argued analogous products made from raw separate factor was not warranted. On that the change is an attempt by the materials. In that case, the facility can the other hand, a few commenters Agency to regulate products or stated opt to compare the toxic constituents in (primarily states) requested that EPA that certain unique elements of their the hazardous secondary material it is codify a separate economics factor to be production processes made it so that using against those in an analogous raw considered and they supported the this factor should not apply to their material instead. We also note that inclusion of an enforceable factor for industry or their particular process. In while this factor needs to be considered, legitimacy determinations. addition, some commenters were it is not mandatory because EPA concerned that under this factor, in recognizes that in some situations, it EPA’s Response: Economics some cases, the generator would have to will not be relevant to a particular Considerations know what was being done with its industrial process. In the case where the EPA agrees with those commenters hazardous secondary material several facility considers this factor and decides who argued that economic steps downstream in the recycling that it is not applicable to its process, considerations are inherent within the process when it was incorporated into a the Agency suggests that the facility legitimacy factors. We believe that one final product. evaluate the presence of hazardous specific factor cannot encompass all

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economic scenarios for the entire guidance on how to consider economics document their reasonable efforts per universe of hazardous secondary in legitimacy determinations. § 261.4(a)(24)(v)(C). materials recycling. Furthermore, we do F. Documentation of Legitimacy XIX. Major Comments on the Non- not believe that a separate enforceable Waste Determination Process factor in the regulations strengthens the Comments and EPA’s Response: definition of legitimate recycling, but Documentation of Legitimacy In the March 2007 supplemental we do believe that articulating how proposal, EPA proposed a non-waste economic considerations can influence Several of the public comments stated determination process that would the legitimacy factors adds real value to that it is important that the hazardous provide persons with an administrative the legitimacy determinations made by secondary material generator or recycler process for receiving a formal state regulators and the regulated of a recycled material maintain determination that their hazardous community. documentation that substantiates how secondary materials are not discarded Based on the comments we received, the recycling activity complies with the and, therefore, not solid waste. The the Agency is not codifying specific legitimacy requirements. The comments process would be voluntary and regulatory language on economic stated that these records would show available in addition to the two self- considerations. Instead, today’s how the recycling activity meets the implementing exclusions. EPA preamble offers guidance and factors or, if a factor is not applicable, proposed three types of non-waste clarification on how economics may be the records would document why it is determinations: (1) For hazardous secondary materials reclaimed in a considered in making legitimacy not necessary for it to meet that factor. continuous industrial process; (2) for determinations, similar to the preamble In this way, the hazardous secondary hazardous secondary materials discussion in the March 2007 material generator or recycler could indistinguishable in all relevant aspects supplemental proposal. For more show that it considered all the factors. from a product or intermediate; and (3) detailed information on economic Other commenters objected to any for hazardous secondary materials considerations, please refer to ‘‘How recordkeeping requirements reclaimed under the control of the consideration of economics applies to documenting that a recycling activity is generator, such as through contracts legitimacy’’ in section IX of today’s legitimate. similar to tolling arrangements. For each rulemaking. After considering the comments, the Agency has determined that for the type of non-waste determination, EPA Comments and EPA’s Response: purpose of the legitimacy factors in the proposed a set of criteria which the Specific Test for Economics final rule, 40 CFR 261.2(f) applies. hazardous secondary materials would have to meet in order to receive a formal EPA received some comments on the Section 261.2(f) states that, in the context of an enforcement action to non-waste determination from the need for a specific test for consideration regulatory authority. For a detailed of economics. Commenters that implement Subtitle C of RCRA, a person claiming that a material is not a solid description of the non-waste supported a specific test believed it determination process that EPA is waste or is conditionally exempt from could include an accounting of finalizing today, see section X of today’s regulation is responsible for showing economic flows over a period of time to preamble. determine longevity; an annual that they meet the terms of the regulatory review of markets and a exclusion and must provide appropriate Comments: Finalizing the Non-Waste facility’s economics; a ‘‘rebuttable documentation to show why they are Determination Process presumption that the recycling is eligible. For the legitimacy requirements Overall, many commenters supported legitimate where the recycler pays for finalized today, this provision would the non-waste determination process the secondary materials,’’ similar to require that persons claiming that their because it provides persons with manufacturing operations; and a recycling activity is legitimate would regulatory certainty and offers a flexible requirement that payment for recycled have the burden to provide alternative to the self-implementing products and intermediates be more documentation showing how the exclusions included in today’s rule. On than nominal if considered to be a sign hazardous secondary materials provide the other hand, some commenters of positive economics. One comment a useful contribution to the recycling argued that the non-waste determination was also submitted which expressly process and how the product of the process would be resource-intensive, opposed a specific test, citing that recycling activity—whether it is a placing a significant burden on the markets fluctuate too much to analyze consumer product or a process states that would have to perform a the flows of revenues. intermediate—is valuable. In addition, case-by-case review of each application. EPA believes that none of the the documentation would have to show One commenter said that, historically, examples suggested by the commenters that the hazardous secondary material many hazardous waste facilities have are applicable to a broad universe of generator or recycler considered the sought formal approval of their recycling activities. We also other two factors and determined for recycling practices from regulators and acknowledge that fluctuations in each of them that either the activity that EPA may be underestimating the markets for hazardous secondary meets the factor or that the factor does number of applications that states materials and recycled products, and not apply to this recycling activity and would receive from the regulated subsequent impacts in revenue flows, why it is not relevant or appropriate to community. Additionally, one state create another challenging aspect of consider. commenter mentioned that the non- developing a test for the consideration In addition, as part of today’s transfer- waste determination process would of economics. Therefore, we believe that based exclusion, the hazardous increase regulatory inconsistency it is not possible to craft an economic secondary material generator has to between states and at least two state test for legitimacy that can undertake reasonable efforts to ensure commenters saw no reason to establish accommodate all legitimate recycling its hazardous secondary materials will a formal non-waste determination activities. As stated in section IX of be legitimately recycled pursuant to process since they viewed the current today’s rulemaking, we believe that this § 260.43. As part of the reasonable variance procedure under 40 CFR preamble discussion provides sufficient efforts requirements, generators must 260.33 and their own state

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determination processes as an effective With respect to the comment supported limiting eligibility to only means to the same end. Finally, a few regarding inconsistency among state hazardous secondary materials being commenters did not support the non- non-waste determinations, EPA notes reclaimed. Alternatively, a few waste determination process because of that, by allowing states to become commenters supported limiting its lack of explicit conditions, such as authorized to conduct their own RCRA eligibility only to those circumstances those conditions required for the two hazardous waste programs, the RCRA where the recycling of hazardous self-implementing exclusions in today’s statute provides states flexibility to secondary materials would not meet rule. regulate hazardous waste more either a condition of the self- stringently than required under the implementing exclusions or one of the EPA’s Response: Finalizing the Non- federal regulations. Additionally, states legitimacy criteria, but still would not Waste Determination Process sometimes take different interpretations be considered discard. These EPA agrees with the majority of of the same or similar regulations. This commenters also argued that narrowing commenters who support the non-waste situation ultimately leads to variations the eligibility would effectively limit the determination process as an alternative between state regulations and number of applications submitted and way for hazardous secondary material interpretations, which EPA views as thus reduce the overall burden on the generators to seek regulatory certainty in inherent to the RCRA structure and, states. circumstances involving reclamation of thus, not a quality unique to the non- EPA’s Response: Scope of Non-Waste hazardous secondary materials which waste determination process. Determinations do not clearly fit under today’s self- We also want to clarify that, although implementing exclusions. EPA, today’s non-waste determination EPA agrees with those commenters however, does not agree with process is similar to the current variance who supported limiting non-waste commenters who believe the non-waste procedures, non-waste determinations determinations to reclamation activities. determination would cause significant are technically not variances in which With respect to ‘‘burning for energy recovery’’ and ‘‘use constituting burden to states. Instead, we anticipate EPA regulations otherwise classify disposal,’’ EPA confirms that these that the vast majority of persons will materials as solid wastes and facilities types of recycling are ineligible for choose to use the self-implementing may apply for an exception. Instead, the today’s non-waste determination exclusions because this would be less new procedure would apply to cases in process. EPA believes that these types of resource intensive for the facility. In which hazardous secondary materials recycling activities would best be left to fact, the Agency does not envision any are not discarded, but which do not fit other rulemaking proceedings. person submitting such an application if within the self-implementing Furthermore, we disagree with those they are considered ‘‘under the control exclusions, or for which the restrictions commenters who suggest further of the generator’’ because there are and conditions of the exclusions are not applicable. limiting the eligibility to only those relatively few restrictions for this cases where reclamation of the exclusion, and, indeed, it would A. Eligibility for Non-Waste hazardous secondary materials would probably require less effort than seeking Determination Process specifically violate a condition of a non-waste determination. Thus, the today’s self-implementing exclusions. Comments: Scope of Non-Waste Agency only expects a limited number We believe that by modeling the non- Determinations of persons to submit applications where waste determination procedure after the the regulatory status is unclear under In the March 2007 supplemental existing variance procedure, we have today’s exclusions and a formal non- proposal, EPA indicated that non-waste ensured that any additional burden to waste determination may be determinations would be limited to the states will be kept at a minimum appropriate. EPA further believes that, reclamation activities and would not and thus further limits on eligibility are by modeling the non-waste apply to recycling of ‘‘inherently waste- not necessary. determination process after the current like’’ materials, as defined at 40 CFR variance procedures, it has kept the 261.2(d), recycling of materials that are Comments: Whether the Hazardous additional burden to the states at a ‘‘used in a manner constituting Constituents in the Hazardous minimum because states can leverage disposal,’’ or ‘‘used to produce products Secondary Materials Are Reclaimed their existing processes. that are placed on the land,’’ (40 CFR Rather Than Released to the Air, Water, EPA believes that requiring explicit 261.2(c)(1)), or ‘‘burning materials for or Land conditions, such as those required for energy recovery’’ or ‘‘used to produce a Overall, we received only a few today’s self-implementing exclusions, is fuel or otherwise contained in fuels’’ (40 comments that discussed the specific not warranted for hazardous secondary CFR 261.2(c)(2)). criteria that EPA proposed for the non- materials receiving non-waste EPA received a number of comments waste determinations. For the criterion determinations because persons are, urging the Agency to broaden the non- regarding whether the hazardous instead, required to make specific waste determinations to include all constituents in the hazardous secondary demonstrations as to how the hazardous recycling scenarios in which hazardous materials are reclaimed rather than secondary materials meet the eligibility secondary materials are not discarded. released to the air, water, or land at criteria. Furthermore, regulatory Some commenters supported expanding significantly higher concentrations, authorities, if they so choose, may the scope to allow recycling for some commenters argued that this stipulate conditions within the non- ‘‘burning for energy recovery’’ and ‘‘use criterion was inappropriate for waste determination as appropriate and constituting disposal.’’ These determining discard because these types relevant on a case-by-case basis. One commenters argued that EPA could of releases are inevitable when purpose of the non-waste determination achieve further increases in recycling if reclaiming hazardous secondary is to provide a measure of flexibility not the Agency broadened the scope of the materials. At least two commenters provided by the self-implementing solid hazardous secondary materials eligible suggested that EPA should establish a waste exclusions and specifying the to apply for a non-waste determination. ‘‘bright line’’ to clearly define conditions to be imposed would defeat On the other hand, some commenters ‘‘significantly higher concentrations’’ in this purpose. agreed with EPA’s proposed scope and order to provide persons with greater

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regulatory certainty. Other commenters secondary materials that were eternally EPA’s Response: Non-Waste expressed concern that this criterion (as ‘‘stored’’ for future recycling to be akin Determination for Hazardous Secondary well as the other criteria within 40 CFR to discard, EPA agrees with these Materials Reclaimed Under the Control 260.34) would be construed to apply to commenters that all non-waste of the Generator other types of recycling, including those determinations should take into account We did not intend for such eligible for today’s self-implementing whether the hazardous secondary circumstances where a hazardous exclusions. materials will be reclaimed within a secondary material generator was ‘‘reasonable time frame.’’ Therefore, in EPA’s Response: Whether the unable to maintain control and this final rule, EPA has added this Hazardous Constituents in the responsibility over his hazardous criterion (with appropriate Hazardous Secondary Materials Are secondary materials to be eligible for a modifications to the language) to the Reclaimed Rather Than Released to the non-waste determination for hazardous non-waste determination for hazardous Air, Water, or Land secondary materials reclaimed under secondary materials indistinguishable in the control of the generator. Where an EPA disagrees with commenters who all relevant aspects from a product or applicant’s hazardous secondary believe this criterion is not relevant for intermediate. As with the non-waste materials are intermingled with determining if hazardous secondary determination for hazardous secondary materials are being discarded. By materials reclaimed in a continuous materials from other hazardous indicating that such releases must not industrial process, a person does not secondary material generators in a way be at ‘‘significantly higher need to demonstrate that the hazardous that renders the applicant unable to concentrations’’ than would otherwise secondary material meets the maintain control and liability over his be released during the production speculative accumulation limits per 40 specific materials, the applicant would process, we believe we have set a CFR 261.1(c)(8), but he must provide have been effectively precluded from reasonable and meaningful bar that sufficient information about the obtaining this formal non-waste applicants must meet in order to hazardous secondary material and the determination since he would demonstrate that their hazardous process to demonstrate that the material ultimately fail the first criterion. secondary materials are reclaimed and will in fact be reclaimed in a reasonable EPA, however, has decided not to not discarded. Hazardous secondary time frame and will not be abandoned. finalize the non-waste determination for materials that fail to meet this criterion However, a person may still choose to materials reclaimed under the control of may exhibit an indication that they are use the speculative accumulation time the generator because EPA could not discarded and that such handling may frame as a default if he so chooses. identify any comments which described present a greater risk of adverse impacts in detail other specific situations to human health and the environment. Comments: Non-Waste Determination involving tolling or contractual Regarding those commenters who for Hazardous Secondary Materials arrangements that would not already be support a ‘‘bright line’’ in order to Reclaimed Under the Control of the covered under today’s self- define ‘‘significantly higher Generator implementing generator-controlled concentrations,’’ EPA believes that, A few commenters disagreed with the exclusion. We, therefore, remain unclear given the wide variety of production non-waste determination for hazardous as to what other arrangements exist processes and recycling practices, secondary materials reclaimed under where the generator would retain establishing a ‘‘one size fits all’’ the control of the generator via a tolling control over its hazardous secondary objective standard is not practical and arrangement or similar contractual materials to ensure they are reclaimed would invite inefficiency. arrangement. These commenters and not discarded. Without this clear EPA also confirms that this criterion, believed that the generator would be picture, EPA believes we cannot finalize and the other criteria in 40 CFR 260.34, unable to maintain control over its this non-waste determination and thus are specific to the relevant non-waste hazardous secondary materials and we are not including it in today’s final determinations, and thus are not residuals once at the reclamation facility rule. required for the self-implementing and, thus, could not reliably meet the B. Process for Non-Waste exclusions or those exclusions found in criteria for this non-waste Determinations 40 CFR 261.4, unless they are determination. One state foresaw major specifically included under state enforcement problems with situations In the March 2007 supplemental regulations as a criteria to consider. involving a commercial facility that proposal, EPA proposed that the non- handles hazardous secondary materials waste determination process would be Comments and EPA’s Response: from multiple customers in a single the same as that for the solid waste Whether the Capacity of the Production process and then mismanages the variances found in 40 CFR 260.33. In Process Would Allow for Use of the residuals from that unit. As the order to obtain a non-waste Hazardous Secondary Material in a residuals would be linked back to determination, a facility must apply to Reasonable Time Frame multiple generators, the liability for the the Administrator or the authorized For the criterion regarding whether mismanaged residuals would be state. The Administrator or authorized the capacity of the production process difficult to detangle. On the other hand, state evaluates the application and would allow for use of the hazardous some commenters felt that all tolling issues a draft notice and opportunity for secondary material in a reasonable time arrangements, including those eligible comment in the locality where the frame (proposed explicitly for the non- for the self-implementing exclusion, facility is located. The Administrator or waste determination for hazardous would best be evaluated through the authorized state would then issue a final secondary materials reclaimed in a non-waste determination process. These decision based on the evaluation of the continuous industrial process), some commenters argued that the regulatory comments received. commenters regarded this criterion as authority should be required to review consistent with judicial direction and, all tolling arrangements and their Comments and EPA’s Response: thus, supported adding this criterion to respective liability provisions in order Requirement To Renew Applications the other non-waste determinations. to ensure that the hazardous secondary A few commenters argued that non- Since EPA would consider hazardous materials will not be discarded. waste determinations should be

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renewed, either periodically or in the In response to these comments, EPA granted authorization to do so. While event of certain changes to the recycling notes the non-waste determination states must still adopt HSWA related process, so that regulators can ensure process was purposely structured to provisions as state law to retain final that the hazardous secondary materials follow the same procedures as outlined authorization, EPA implements the continue to be reclaimed and not for solid waste variances in 40 CFR HSWA provisions in authorized states discarded. 260.33 in order to leverage the existing until the states do so. EPA agrees with those commenters structure and keep additional burden on Authorized states are required to who believe that certain changes in the the states to a minimum. EPA, modify their programs only when EPA recycling process should logically furthermore, believes that any changes enacts federal requirements that are trigger a re-review of the circumstances. to the type of format required for public more stringent or broader in scope than Therefore, in the event of a change that notice would be more appropriately existing federal requirements. RCRA affects how hazardous secondary handled as part of a separate, wholesale section 3009 allows the states to impose materials meet one or more of the effort to update all public notice standards more stringent than those in criteria upon which a non-waste requirements in the federal hazardous the federal program (see 40 CFR 271.1). determination has been based, EPA is waste regulations. Therefore, for today’s Therefore, authorized states may, but requiring persons to re-apply to the rule, EPA is retaining the same public are not required to, adopt federal Administrator or the authorized state for notice provisions as proposed and regulations, both HSWA and non- a formal determination that the required in 40 CFR 260.33. HSWA, that are considered less hazardous secondary material continues XX. How Will These Regulatory stringent than previous federal to meet the relevant criteria and is not Changes Be Administered and Enforced regulations. discarded and, therefore, not a solid in the States? B. Effect on State Authorization waste. A. Applicability of Rules in Authorized Today’s rule eliminates specific Comments and EPA’s Response: States requirements that apply to hazardous Timelines for Regulators Under section 3006 of RCRA, EPA secondary materials currently managed Some commenters expressed concerns may authorize qualified states to as hazardous waste. EPA believes that about the length of time an applicant administer the RCRA Subtitle C today’s final rule describes the would need to wait before receiving a hazardous waste program within the appropriate scope of the federal program formal determination from their state. Following authorization, EPA under RCRA. These exclusions will regulatory authority, explaining that retains Subtitle C enforcement encourage recycling and are consistent particularly lengthy delays would authority, although authorized states with RCRA’s statutory objective of adversely affect business operations. have primary enforcement conserving valuable material and energy Although we understand this concern, responsibility. EPA retains authority resources. requiring non-waste determinations to under sections 3007, 3008, 3013, 3017 EPA strongly encourages states to be made within a specific time frame and 7003. The standards and adopt the regulations being finalized would be difficult, as each case varies requirements for state authorization are today. When EPA authorizes a state to in complexity with some requiring more found at 40 CFR part 271. implement the RCRA hazardous waste time to review than others. Furthermore, Prior to enactment of the Hazardous program, EPA determines whether the EPA would be challenged to prescribe and Solid Waste Amendments of 1984 state program is consistent with the one time frame that would (HSWA), a state with final RCRA federal program and whether it is no accommodate numerous state regulatory authorization administered its less stringent. This process, codified in agencies that vary in staffing and hazardous waste program entirely in 40 CFR part 271, ensures national workloads. Therefore, we are not lieu of EPA administering the federal consistency and minimum standards, requiring regulators to issue program in that state. The federal while providing flexibility to the states determinations within a certain period requirements no longer applied in the in implementing the rules. In making of time. authorized state and EPA could not this determination, EPA evaluates the state requirements to ensure they are no Comments and EPA’s Response: Public issue permits for any facilities in that less stringent than the federal Comment Process state, since only the state was authorized to issue RCRA permits. requirements. Because today’s rule At least two commenters suggested When new, more stringent federal eliminates specific requirements for updating the format for public notice. requirements were promulgated, the hazardous secondary materials that are For example, instead of requiring notice state was obligated to enact equivalent currently managed as hazardous waste, through a ‘‘newspaper advertisement or authorities within specified time frames. state programs would no longer need to radio broadcast’’ (as EPA proposed), However, the new federal requirements include those specific requirements in public notice should be allowed to did not take effect in an authorized state order to be consistent with EPA’s include electronic formats, such as until the state adopted the federal regulations. posting on a Web site or distribution requirements as state law. However, if a state were, through through e-mail, in order to reduce costs. In contrast, under RCRA section implementation of state waiver Other commenters supported requiring 3006(g) (42 U.S.C. 6926(g)), which was authorities or other state laws, to allow public notice for a broader audience, not added by HSWA, new requirements and compliance with the provisions of necessarily limited to the ‘‘locality prohibitions imposed under HSWA today’s rule in advance of adoption or where the recycler is located.’’ These authority take effect in authorized states authorization, EPA would not generally commenters argued that non-waste at the same time that they take effect in consider such implementation a determinations may have national unauthorized states. EPA is directed by concern for purposes of enforcement or implications and would be more the statute to implement these state authorization. Of course, the state appropriately published in the Federal requirements and prohibitions in could not implement the requirements Register or made available through the authorized states, including the in a way that was less stringent than the EPA Docket Center. issuance of permits, until the state is federal requirements in today’s rule.

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In the case of the case-by-case non- ‘‘significant’’ criteria, EPA submitted materials management cost savings for waste determinations found in 40 CFR this action to the Office of Management the net effect of the exclusions. These 260.34, a non-waste determination may and Budget (OMB) for review under EO impact ranges reflect the overall be granted by the state if the state is 12866 and any changes made in uncertainty range of ¥80% to +249% either authorized for this provision or if response to OMB’s recommendations across eleven different uncertainty the following conditions are met: (1) have been documented in the docket for factors addressed as a sensitivity The state determines the hazardous this action. EPA also prepared an analysis in our RIA. The specific secondary material meets the applicable analysis of the potential economic costs uncertainty factors evaluated are (1) criteria for the non-waste determination; and benefits associated with this state government adoption, (2) future (2) the state requests that EPA review its proposed action. The analysis is fluctuations in affected hazardous determination; and (3) EPA approves contained in our ‘‘Regulatory Impact secondary materials generation the state determination. Analysis’’ (RIA) which is available from tonnages, (3) within-year discrepancies It should be noted that, under RCRA the docket (http://www.regulations.gov) between hazardous secondary materials section 3009, a state may adopt and is briefly summarized below. generation and corresponding standards that are more stringent than Assuming full adoption of this final management tonnages, (4) future the federal program. Thus, a state is not rule by all RCRA-authorized states, industrial production levels, (5) required to adopt today’s final rule or a EPA’s best estimate (i.e., ‘‘expected omission of SQG facility counts in our state may choose to adopt only parts of value’’) of the future average annual net impact estimates by artifact that we today’s final rule. Some states benefits of this final rule to the national based the impacts on LQG and TSDRF incorporate the federal regulations by economy is $95 million per year, data from the RCRA Biennial Report reference or have specific state statutory affecting about 5,600 facilities in 280 database, (6) Biennial Report database requirements that their state program industries in 21 economic sectors. quality assurance considerations, (7) can be no more stringent than the However, the sensitivity analysis physical and chemical quality of the federal regulations. In those cases, EPA section of our RIA for this final rule hazardous secondary materials affected, anticipates that the exclusions in identifies 11 numerical uncertainty (8) impact estimation methodology level today’s final rule will be adopted by factors behind our calculation of this of effort, (9) changes in future market these states, consistent with state laws best estimate. Future variation in one or price of commodities recovered from and state administrative procedures, more of these factors may result in recycled material, (10) the possibility of unless they take explicit action as future annual net benefits ranging same-company facilities sharing offsite specified by their respective state laws between $19 million to $333 million in captive recycling facility, and (11) the to decline the revisions. We note that if any given future year. Therefore, EPA is possibility of baseline disposal states choose not to adopt the provisions classifying this final rule as switchover to onsite recycling. of today’s final rule concerning exports, ‘‘economically significant’’ because the Concerning the uncertainty of state then any hazardous secondary materials $333 million per year upper-bound of government adoption, included as one that are exported would be subject to our net benefits uncertainty range component of potential industry cost the hazardous waste export exceeds the $100 million ‘‘annual savings is the transfer effect of an requirements in 40 CFR part 262 effect’’ threshold established by section expected $5 million reduction in future subparts E or H, or analogous export 3(f)(1) of the 1993 Executive Order annual state government hazardous requirements that are part of a state’s 12866.’’ waste fee revenues if all state This action is expected to remove RCRA authorized program. EPA also governments adopt today’s rule. from RCRA regulation 1.5 million tons notes that, as described in this With respect to each of the regulatory per year of hazardous secondary preamble, we believe that the legitimacy exclusions in today’s action, the $95 materials currently managed as RCRA provision finalized in § 260.43 is million per year net cost savings effect hazardous waste. These affected substantially the same as and no more consists of approximately (a) $7 million hazardous secondary materials consist stringent than the existing regulatory per year for hazardous secondary of about 98% that are currently scheme in which all recycling must be materials reclaimed under the control of reclaimed as RCRA hazardous waste, the generator in either land or non-land legitimate. If a state agency were to and about 2% of hazardous waste that based units (which includes on-site, adopt the four legitimacy factors in is currently disposed of (e.g., landfilled, same-company, and tolling exclusions), § 260.43 for all recycling, EPA would incinerated, or deepwell injected), plus (b) $87 million per year cost consider their regulations to be which EPA expects may switch from savings for exclusion of other offsite equivalent to the federal requirements. disposal to reclamation as a result of transfers, plus (c) $1 million per year in XXI. Administrative Requirements for this action. This $95 million annual net cost savings for case-by-case non-waste This Rulemaking? cost savings estimate is 11% less than determinations. the $107 million annual net cost savings Embedded in this overall impact A. Executive Order 12866: Regulatory estimated in our 2007 RIA in support of estimate is $4.7 million per year in Planning and Review the March 2007 supplemental proposal potential commodity market value of Under section 3(f)(1) of Executive for this action. This difference is largely three categories of 15 constituents in Order (EO) 12866 (58 FR 51735, October explained by enhancements made to the affected materials we expect may begin 4, 1993), this action is a ‘‘significant methodology of the RIA based on public to be recovered from hazardous regulatory action’’ because today’s comments received from 30 secondary materials that would action contains novel policy issues (EO organizations on our 2003 and 2007 otherwise continue to be disposed of as 12866 Section 3(f)(4)) and because its RIA’s in support of this action, as well hazardous wastes in the absence of potential impact on the economy will be as by updates of key data underlying the today’s action: (1) Commodity metals greater than the $100 million or more RIA. (chromium, copper, lead, molybdenum annual effect, meeting the These impact estimates are EPA’s best disulfide, nickel, zinc), (2) commodity ‘‘economically significant’’ threshold of estimates within the economic impact solvents (acetone, alkyl benzenes, C9– EO 12866 Section 3(f)(1). Because this estimation uncertainty range of $19 C10 alkyl benzenes, methanol, methyl rule meets two of the EO 12866 million to $333 million in annual ethyl ketone, toluene, xylene), and (3)

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other commodity materials (acids, cost to affected entities (i.e., industrial entities, I certify that this action will not carbon). However, the RIA estimate of facilities) of $1,417,242. However, this have a significant economic impact on potential new induced recycling does represents an annual reduction in a substantial number of small entities. not include an evaluation of whether burden to respondents of 52,050 hours, In determining whether a rule has a the U.S. or global recycling markets are representing a cost reduction of significant economic impact on a large enough to sustain this potential $3,474,035 per year. The estimated substantial number of small entities, the future increase in supply of recovered annual operation and maintenance costs impact of concern is any significant materials. Market conditions for to affected entities are $739,469 per adverse economic impact on small recycled hazardous secondary materials year, primarily for purchasing audit or entities, since the primary purpose of can vary considerably over time. other similar type reports. There are no the regulatory flexibility analyses is to Demand for recycled solvents, for startup costs and no costs for purchases identify and address regulatory example, is largely dependent on the of services. Administrative costs to the alternatives ‘‘which minimize any petroleum market because virgin Agency are estimated to be 1,257 hours significant economic impact of the rule solvents are made from petroleum per year, representing an annual cost of on small entities.’’ 5 U.S.C. 603 and 604. products, and high petroleum prices $49,891. Burden is defined at 5 CFR Thus, an agency may certify that a rule encourage solvent recycling. Similarly, 1320.3(b). will not have a significant economic high metals prices obviously favor the An agency may not conduct or impact on a substantial number of small recycling of metal-bearing hazardous sponsor, and a person is not required to entities if the rule relieves regulatory secondary materials. respond to, a collection of information burden, or otherwise has a positive The RIA, available from the docket unless it displays a currently valid OMB economic effect on all of the small (http://www.regulations.gov), provides control number. The OMB control entities subject to the rule. Because many more details and descriptions numbers for EPA’s regulations in 40 today’s action is designed to lower the about these assorted components of CFR are listed in 40 CFR part 9. When cost of industrial hazardous secondary expected economic impacts, including this ICR is approved by OMB, the materials management for entities potential distributional effects on other Agency will publish a technical subject to today’s requirements, this industries not directly subject to today’s amendment to 40 CFR part 9 in the final rule will not result in an adverse action. Federal Register to display the OMB economic impact effect on affected control number for the approved B. Paperwork Reduction Act small entities. EPA therefore concludes information collection requirements (Information Collection Request) that today’s action will relieve contained in this final rule. regulatory burden for all size entities, The information collection including small entities. requirements in this rule have been C. Regulatory Flexibility Act submitted for approval to OMB under The Regulatory Flexibility Act (RFA), D. Unfunded Mandates Reform Act the Paperwork Reduction Act, 44 U.S.C. as amended by the Small Business Title II of the Unfunded Mandates 3501 et seq. The information collection Regulatory Enforcement Fairness Act of Reform Act of 1995 (UMRA), Public requirements are not enforceable until 1996 (SBREFA), 5 U.S.C. 601 et seq., Law 104–4, establishes requirements for OMB approves them. The information generally requires an agency to prepare Federal agencies to assess the effects of collection request has been updated a regulatory flexibility analysis of any their regulatory actions on state, local, since the March 2007 supplemental rule subject to notice and comment and tribal governments and the private proposal to reflect the final rule rulemaking requirements under the sector. Under section 202 of the UMRA, requirements and to respond to public Administrative Procedure Act or any EPA generally must prepare a written comments. other statute, unless the agency certifies statement, including a cost-benefit The information requirements that the rule will not have a significant analysis, for proposed and final rules established for this action are voluntary economic impact on a substantial with ‘‘Federal mandates’’ that may to the extent that the exclusions being number of small entities. Small entities result in expenditures to state, local, finalized today are voluntary and include small businesses, small and tribal governments, in the aggregate, represent an overall reduction in burden organizations, and small governmental or to the private sector, of $100 million as compared with the alternative jurisdictions. or more in any one year. Before information requirements associated For purposes of assessing the impacts promulgating an EPA rule for which a with managing the hazardous secondary of today’s rule on small entities, small written statement is needed, section 205 materials as hazardous waste. The entity is defined as: (1) A small business of the UMRA generally requires EPA to information requirements help ensure as defined by the Small Business identify and consider a reasonable that (1) entities operating under the Administration’s (SBA) regulations at 13 number of regulatory alternatives and regulatory exclusions contained in CFR 121.201; (2) a small governmental adopt the least costly, most cost- today’s action are held accountable to jurisdiction that is a government of a effective or least burdensome alternative the applicable requirements; (2) state city, county, town, school district or that achieves the objectives of the rule. inspectors can verify compliance with special district with a population of less The provisions of section 205 do not the restrictions and conditions of the than 50,000; and (3) a small apply when they are inconsistent with exclusions when needed; and (3) organization that is any not-for-profit applicable law. Moreover, section 205 hazardous secondary materials exported enterprise which is independently allows EPA to adopt an alternative other for recycling are actually handled as owned and operated and is not than the least costly, most cost-effective commodities abroad. dominant in its field. For more or least burdensome alternative if the For the recordkeeping and reporting information regarding the expected Administrator publishes with the final requirements applicable to hazardous economic impact of this action, please rule an explanation why that alternative secondary materials sent for refer to our ‘‘Regulatory Impact was not adopted. Before EPA establishes reclamation, the aggregate annual Analysis’’ available from the docket for any regulatory requirements that may burden to respondents over the three- this final rule. significantly or uniquely affect small year period covered by this ICR is After considering the economic governments, including tribal estimated to be 11,552 hours, with a impacts of this final rule on small governments, it must have developed

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under section 203 of the UMRA a small public commenter noted that many Act of 1995 (‘‘NTTAA’’), Public Law No. government agency plan. The plan must states choose to incorporate EPA’s 104–113, 12(d) (15 U.S.C. 272 note) provide for notifying potentially regulations by reference, EPA does not directs EPA to use voluntary consensus affected small governments, enabling require them to do so. standards in its regulatory activities officials of affected small governments unless to do so would be inconsistent F. Executive Order 13175: Consultation to have meaningful and timely input in with applicable law or otherwise and Coordination With Indian Tribal the development of EPA regulatory impractical. Voluntary consensus Governments proposals with significant Federal standards are technical standards (e.g., intergovernmental mandates, and Executive Order 13175, entitled materials specifications, test methods, informing, educating, and advising Consultation and Coordination with sampling procedures, and business small governments on compliance with Indian Tribal Governments (65 FR practices) that are developed or adopted the regulatory requirements. 67249, November 9, 2000), requires EPA by voluntary consensus standards EPA has determined that this rule to develop an accountable process to bodies. NTTAA directs EPA to provide does not include a Federal mandate that ensure a meaningful and timely input Congress, through OMB, explanations of may result in expenditures of $100 by tribal officials in the development of when the Agency decides not to use million or more for state, local, or tribal regulatory policies that have tribal available and applicable voluntary governments, in the aggregate, or the implications. This final rule does not consensus standards. private sector in any one year. This is have tribal implications, as specified in This action does not involve technical because this rule imposes no Executive Order 13175. It does not standards. Therefore, EPA did not enforceable duty on any state, local, or significantly or uniquely affect the consider the use of any voluntary tribal governments. Although one public communities of Indian tribal consensus standards. commenter noted that many states governments, nor would it impose J. Executive Order 12898: choose to incorporate EPA’s regulations substantial direct compliance costs on Environmental Justice by reference, EPA does not require them them. Thus, Executive Order 13175 does to do so. EPA also has determined that not apply to this final rule. Executive Order 12898, Federal this rule contains no regulatory Actions to Address Environmental requirements that might significantly or G. Executive Order 13045: Protection of Justice in Minority Populations and uniquely affect small governments. In Children From Environmental Health Low-Income Population (February 11, addition, as discussed above, the private Risks and Safety Risks 1994), is designed to address the sector is not expected to incur costs This action is not subject to EO 13045 environmental and human health exceeding $100 million. Therefore, (62 FR 19885, April 23, 1997) because conditions of minority and low-income today’s rule is not subject to the the Agency does not believe the populations. EPA is committed to requirements of sections 202 and 205 of environmental health risks or safety addressing environmental justice UMRA. risks addressed by this action present a concerns and has assumed a leadership disproportionate risk to children. An role in environmental justice initiatives E. Executive Order 13132: Federalism assessment of countervailing risk and a to enhance environmental quality for all Executive Order 13132, entitled discussion of how today’s rule citizens of the United States. The Federalism (64 FR 43255, August 10, addresses those risks can be found in Agency’s goals are to ensure that no 1999), requires EPA to develop an Chapter 11 of the Regulatory Impact segment of the population, regardless of accountable process to ensure Analysis, found in the docket for today’s race, color, national origin, income, or meaningful and timely input by state rulemaking. net worth bears disproportionately high and local officials in the development of and adverse human health and regulatory policies that have federalism H. Executive Order 13211: Actions That environmental impacts as a result of implications. Policies that have Significantly Affect Energy Supply, EPA’s policies, programs, and activities. federalism implications are defined in Distribution, or Use Our goal is to ensure that all citizens the Executive Order to include This final rule is not a ‘‘significant live in clean and sustainable regulations that have substantial direct energy action’’ as defined in Executive communities. In response to Executive effects on the states, on the relationship Order 13211, ‘‘Actions Concerning Order 12898, and to the concerns voiced between the national government and Regulations That Significantly Affect by many groups outside the Agency, the states, or on the distribution of Energy Supply, Distribution, or Use’’ (66 EPA’s Office of Solid Waste and power and responsibilities among the FR 28355, May 22, 2001) because it is Emergency Response (OSWER) formed various levels of government. not likely to have a significant adverse an Environmental Justice Task Force to This final rule does not have effect on the supply, distribution, or use analyze the array of environmental federalism implications. It will not have of energy. This final rule reduces justice issues specific to waste programs substantial direct effects on the states, regulatory burden and as explained in and to develop an overall strategy to on the relationship between the national our Regulatory Impact Analysis, may identify and address these issues government and the states, or on the possibly induce fuel efficiency and (OSWER Directive No. 9200.3–17). distribution of power and energy savings from the voluntary This final rule would streamline the responsibilities among the various shifting of some types of hazardous requirements for certain hazardous levels of government, as specified in secondary materials, where it is cost- secondary materials sent for Executive Order 13132. There are no effective for firms to do so, from current reclamation. Facilities that would be state and local government bodies that landfill and incineration to reclamation. affected by today’s final rule include incur direct compliance costs by this It therefore should not adversely affect those generating hazardous secondary rulemaking. State and local government energy supply, distribution, or use. materials, as well as facilities which implementation expenditures are reclaim such materials. Disposal and expected to be less than $500,000 in any I. National Technology Transfer and treatment facilities would not be one year. Thus, the requirements of Advancement Act of 1995 affected by this final rule. While Section 6 of the Executive Order do not Section 12(d) of the National commenters assert that minorities now apply to this final rule. Although one Technology Transfer and Advancement comprise a majority in neighborhoods

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with commercial hazardous waste 40 CFR Part 261 to corrective action requirements if the facilities, and much larger (over two- Environmental protection, Hazardous site is located within such a facility. thirds) majorities can be found in waste, Recycling, Reporting and * * * * * neighborhoods with clustered facilities, recordkeeping requirements. Hazardous secondary material means EPA does not believe that such a secondary material (e.g., spent neighborhoods will be adversely 40 CFR Part 270 material, by-product, or sludge) that, impacted by today’s rule. As explained Administrative practice and when discarded, would be identified as in Chapter 11 of the Regulatory Impact procedure, Hazardous waste, Reporting hazardous waste under part 261 of this Analysis found in the docket to today’s and recordkeeping requirements, Permit chapter. rule, EPA has performed an assessment application requirements, Permit Hazardous secondary material of potential countervailing risks and has modification procedures, Waste generated and reclaimed under the determined that the conditions address treatment and disposal. control of the generator means: those risks and no net impact is (1) That such material is generated Dated: October 7, 2008. expected. Thus, overall, no and reclaimed at the generating facility disproportionate impacts to minorities Stephen L. Johnson, (for purposes of this defintion, or low income communities are Administrator. generating facility means all contiguous expected. ■ For the reasons stated in the preamble, property owned, leased, or otherwise title 40, chapter I of the Code of Federal K. Congressional Review Act controlled by the hazardous secondary Regulations is amended to read as material generator); or The Congressional Review Act, 5 follows: (2) That such material is generated U.S.C. 801 et seq., as added by Subtitle and reclaimed at different facilities, if E of the Small Business Regulatory PART 260—HAZARDOUS WASTE the reclaiming facility is controlled by Enforcement Fairness Act of 1996 MANAGEMENT SYSTEM: GENERAL the generator or if both the generating (SBREFA), generally provides that ■ 1. The authority citation for part 260 facility and the reclaiming facility are before a rule may take effect, the agency continues to read as follows: controlled by a person as defined in promulgating the rule must submit a § 260.10, and if the generator provides report containing the rule and other Authority: 42 U.S.C. 6905, 6912(a), 6921– one of the following certifications: ‘‘on 6927, 6930, 6935, 6937, 6938, 6939 and 6974. required information to the U.S. Senate, behalf of [insert generator facility name], the U.S. House of Representatives, and Subpart B—Definitions I certify that this facility will send the to the Comptroller General of the United indicated hazardous secondary material States, prior to publication of the rule in ■ 2. Section 260.10 is amended by to [insert reclaimer facility name], the Federal Register. Furthermore, a revising the definitions of ‘‘Facility’’ which is controlled by [insert generator ‘‘major rule’’ cannot take effect until 60 and ‘‘Transfer facility’’ and by adding in facility name] and that [insert the name days after it is published in the Federal alphabetical order the definitions of of either facility] has acknowledged full Register. Today’s action is expected to ‘‘Hazardous secondary material,’’ responsibility for the safe management be a ‘‘major rule’’ as defined by 5 U.S.C. ‘‘Hazardous secondary material of the hazardous secondary material,’’ or 804(2) according to the first of its three generated and reclaimed under the ‘‘on behalf of [insert generator facility ‘‘major rule’’ definitions: ‘‘The term control of the generator’’ and name] I certify that this facility will ‘‘major rule’’ means any rule that the ‘‘Hazardous secondary material send the indicated hazardous secondary Administrator of the Office of generator,’’ ‘‘Intermediate facility,’’ and material to [insert reclaimer facility Information and Regulatory Affairs of ‘‘Land-based unit’’ to read as follows: name], that both facilities are under OMB finds has resulted in or is likely common control, and that [insert name to result in—(A) an annual effect on the § 260.10 Definitions. of either facility] has acknowledged full economy of $100,000,000 or more; (B) a * * * * * responsibility for the safe management major increase in costs or prices for Facility means: of the hazardous secondary material.’’ consumers, individual industries, (1) All contiguous land, and For purposes of this paragraph, Federal, state, or local government structures, other appurtenances, and ‘‘control’’ means the power to direct the agencies, or geographic regions; or (C) improvements on the land, used for policies of the facility, whether by the significant adverse effects on treating, storing, or disposing of ownership of stock, voting rights, or competition, employment, investment, hazardous waste, or for managing otherwise, except that contractors who productivity, innovation, or on the hazardous secondary materials prior to operate facilities on behalf of a different ability of United States-based reclamation. A facility may consist of person as defined in § 260.10 shall not enterprises to compete with foreign- several treatment, storage, or disposal be deemed to ‘‘control’’ such facilities, based enterprises in domestic and operational units (e.g., one or more or export markets.’’ EPA has submitted a landfills, surface impoundments, or (3) That such material is generated copy of this rule to each House of the combinations of them). pursuant to a written contract between Congress and to the Comptroller (2) For the purpose of implementing a tolling contractor and a toll General, and this rule will be effective corrective action under 40 CFR 264.101 manufacturer and is reclaimed by the December 29, 2008. or 267.101, all contiguous property tolling contractor, if the tolling under the control of the owner or contractor certifies the following: ‘‘On List of Subjects operator seeking a permit under Subtitle behalf of [insert tolling contractor 40 CFR Part 260 C of RCRA. This definition also applies name], I certify that [insert tolling to facilities implementing corrective contractor name], has a written contract Environmental protection, action under RCRA Section 3008(h). with [insert toll manufacturer name] to Administrative practice and procedure, (3) Notwithstanding paragraph (2) of manufacture [insert name of product or Confidential business information, this definition, a remediation waste intermediate] which is made from Hazardous waste, Reporting and management site is not a facility that is specified unused materials, and that recordkeeping requirements. subject to 40 CFR 264.101, but is subject [insert tolling contractor name] will

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reclaim the hazardous secondary § 260.30 Non-waste determinations and determinations will be based on the materials generated during this variances from classification as a solid criteria contained in paragraphs (b) or manufacture. On behalf of [insert tolling waste. (c) of this section, as applicable. If an contractor name], I also certify that In accordance with the standards and application is denied, the hazardous [insert tolling contractor name] retains criteria in § 260.31 and § 260.34 and the secondary material might still be ownership of, and responsibility for, the procedures in § 260.33, the eligible for a solid waste variance or hazardous secondary materials that are Administrator may determine on a case- exclusion (for example, one of the solid generated during the course of the by-case basis that the following recycled waste variances under § 260.31). manufacture, including any releases of materials are not solid wastes: Determinations may also be granted by hazardous secondary materials that * * * * * the State if the State is either authorized for this provision or if the following occur during the manufacturing process. (b) Materials that are reclaimed and then reused within the original conditions are met: For purposes of this paragraph, tolling (1) The State determines the contractor means a person who arranges production process in which they were generated; hazardous secondary material meets the for the production of a product or criteria in paragraphs (b) or (c) of this intermediate made from specified * * * * * (d) Hazardous secondary materials section, as applicable; unused materials through a written (2) The State requests that EPA review that are reclaimed in a continuous contract with a toll manufacturer. Toll its determination; and manufacturer means a person who industrial process; and (3) EPA approves the State (e) Hazardous secondary materials produces a product or intermediate determination. that are indistinguishable in all relevant made from specified unused materials (b) The Administrator may grant a aspects from a product or intermediate. pursuant to a written contract with a non-waste determination for hazardous tolling contractor. * * * * * secondary material which is reclaimed ■ 4. Section 260.33 is amended by in a continuous industrial process if the Hazardous secondary material revising the section heading, the applicant demonstrates that the generator means any person whose act introductory text, paragraph (a) and hazardous secondary material is a part or process produces hazardous adding paragraph (c) to read as follows: of the production process and is not secondary materials at the generating discarded. The determination will be facility. For purposes of this paragraph, § 260.33 Procedures for variances from based on whether the hazardous classification as a solid waste, for variances ‘‘generating facility’’ means all secondary material is legitimately contiguous property owned, leased, or to be classified as a boiler, or for non-waste determinations. recycled as specified in § 260.43 and on otherwise controlled by the hazardous the following criteria: secondary material generator. For the The Administrator will use the (1) The extent that the management of purposes of § 261.2(a)(2)(ii) and following procedures in evaluating the hazardous secondary material is part § 261.4(a)(23), a facility that collects applications for variances from of the continuous primary production classification as a solid waste, hazardous secondary materials from process and is not waste treatment; applications to classify particular other persons is not the hazardous (2) Whether the capacity of the enclosed controlled flame combustion secondary material generator. production process would use the devices as boilers, or applications for hazardous secondary material in a * * * * * non-waste determinations. reasonable time frame and ensure that Intermediate facility means any (a) The applicant must apply to the the hazardous secondary material will facility that stores hazardous secondary Administrator for the variance or non- not be abandoned (for example, based materials for more than 10 days, other waste determination. The application on past practices, market factors, the than a hazardous secondary material must address the relevant criteria nature of the hazardous secondary generator or reclaimer of such material. contained in § 260.31, § 260.32, or material, or any contractual § 260.34, as applicable. * * * * * arrangements); * * * * * (3) Whether the hazardous Land-based unit means an area where (c) For non-waste determinations, in constituents in the hazardous secondary hazardous secondary materials are the event of a change in circumstances material are reclaimed rather than placed in or on the land before that affect how a hazardous secondary released to the air, water or land at recycling. This definition does not material meets the relevant criteria significantly higher levels from either a include land-based production units. contained in § 260.34 upon which a statistical or from a health and * * * * * non-waste determination has been environmental risk perspective than based, the applicant must re-apply to Transfer facility means any would otherwise be released by the the Administrator for a formal production process; and transportation-related facility, including determination that the hazardous (4) Other relevant factors that loading docks, parking areas, storage secondary material continues to meet demonstrate the hazardous secondary areas and other similar areas where the relevant criteria and therefore is not material is not discarded. shipments of hazardous waste or a solid waste. (c) The Administrator may grant a hazardous secondary materials are held ■ 5. Section 260.34 is added to Subpart non-waste determination for hazardous during the normal course of C to read as follows: secondary material which is transportation. indistinguishable in all relevant aspects * * * * * § 260.34 Standards and criteria for non- from a product or intermediate if the waste determinations. applicant demonstrates that the ■ 3. Section 260.30 is amended by (a) An applicant may apply to the hazardous secondary material is revising the section heading, the Administrator for a formal comparable to a product or intermediate introductory text, paragraph (b), and determination that a hazardous and is not discarded. The determination adding paragraphs (d) and (e) to read as secondary material is not discarded and will be based on whether the hazardous follows: therefore not a solid waste. The secondary material is legitimately

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recycled as specified in § 260.43 and on materials generated and reclaimed intermediate of the recycling process, the following criteria: under the control of the generator); and the recycling process must produce (1) Whether market participants treat (6) When the facility expects to begin a valuable product or intermediate. the hazardous secondary material as a managing the hazardous secondary (1) The hazardous secondary material product or intermediate rather than a materials in accordance with the provides a useful contribution if it waste (for example, based on the current exclusion; (i) Contributes valuable ingredients to positive value of the hazardous (7) A list of hazardous secondary a product or intermediate; or secondary material, stability of demand, materials that will be managed (ii) Replaces a catalyst or carrier in the or any contractual arrangements); according to the exclusion (reported as recycling process; or (2) Whether the chemical and the EPA hazardous waste numbers that (iii) Is the source of a valuable physical identity of the hazardous would apply if the hazardous secondary constituent recovered in the recycling secondary material is comparable to materials were managed as hazardous process; or commercial products or intermediates; wastes); (iv) Is recovered or regenerated by the (3) Whether the capacity of the market (8) For each hazardous secondary recycling process; or would use the hazardous secondary material, whether the hazardous (v) Is used as an effective substitute material in a reasonable time frame and secondary material, or any portion for a commercial product. ensure that the hazardous secondary thereof, will be managed in a land-based (2) The product or intermediate is material will not be abandoned (for unit; valuable if it is (i) Sold to a third party; or example, based on past practices, (9) The quantity of each hazardous (ii) Used by the recycler or the market factors, the nature of the secondary material to be managed generator as an effective substitute for a hazardous secondary material, or any annually; and commercial product or as an ingredient contractual arrangements); (10) The certification (included in or intermediate in an industrial process. (4) Whether the hazardous EPA Form 8700–12) signed and dated by an authorized representative of the (c) The following factors must be constituents in the hazardous secondary considered in making a determination material are reclaimed rather than facility. (b) If a hazardous secondary material as to the overall legitimacy of a specific released to the air, water or land at generator, tolling contractor, toll recycling activity. significantly higher levels from either a manufacturer, reclaimer or intermediate (1) The generator and the recycler statistical or from a health and facility has submitted a notification, but should manage the hazardous secondary environmental risk perspective than then subsequently stops managing material as a valuable commodity. would otherwise be released by the hazardous secondary materials in Where there is an analogous raw production process; and accordance with the exclusion(s), the material, the hazardous secondary (5) Other relevant factors that facility must notify the Regional material should be managed, at a demonstrate the hazardous secondary Administrator within thirty (30) days minimum, in a manner consistent with material is not discarded. using EPA Form 8700–12. For purposes the management of the raw material. ■ 6. Section 260.42 is added to Subpart of this section, a facility has stopped Where there is no analogous raw C to read as follows: managing hazardous secondary material, the hazardous secondary material should be contained. § 260.42 Notification requirement for materials if the facility no longer hazardous secondary materials. generates, manages and/or reclaims Hazardous secondary materials that are hazardous secondary materials under released to the environment and are not (a) Hazardous secondary material the exclusion(s) and does not expect to recovered immediately are discarded. generators, tolling contractors, toll manage any amount of hazardous (2) The product of the recycling manufacturers, reclaimers, and secondary materials for at least one year. process does not intermediate facilities managing (i) Contain significant concentrations hazardous secondary materials which ■ 7. Section 260.43 is added to Subpart C to read as follows: of any hazardous constituents found in are excluded from regulation under Appendix VIII of part 261 that are not § 261.2(a)(2)(ii), § 261.4(a)(23), (24), or § 260.43 Legitimate recycling of hazardous found in analogous products; or (25) must send a notification prior to secondary materials regulated under (ii) Contain concentrations of any operating under the exclusion(s) and by § 260.34, § 261.2(a)(2)(ii), and § 261.4(a)(23), hazardous constituents found in March 1 of each even numbered year (24), or (25). Appendix VIII of part 261 at levels that thereafter to the Regional Administrator (a) Persons regulated under § 260.34 are significantly elevated from those using EPA Form 8700–12 that includes or claiming to be excluded from found in analogous products; or the following information: hazardous waste regulation under (iii) Exhibit a hazardous characteristic (1) The name, address, and EPA ID § 261.2(a)(2)(ii), § 261.4(a)(23), (24), or (as defined in part 261 subpart C) that number (if applicable) of the facility; (25) because they are engaged in analogous products do not exhibit. (2) The name and telephone number reclamation must be able to demonstrate (3) In making a determination that a of a contact person; that the recycling is legitimate. hazardous secondary material is (3) The NAICS code of the facility; Hazardous secondary material that is legitimately recycled, persons must (4) The exclusion under which the not legitimately recycled is discarded evaluate all factors and consider hazardous secondary materials will be material and is a solid waste. In legitimacy as a whole. If, after careful managed (e.g., § 261.2(a)(2)(ii), determining if their recycling is evaluation of these other considerations, § 261.4(a)(23), (24), and/or (25)); legitimate, persons must address the one or both of the factors are not met, (5) For reclaimers and intermediate requirements of § 260.43(b) and must then this fact may be an indication that facilities managing hazardous secondary consider the requirements of § 260.43(c) the material is not legitimately recycled. materials in accordance with below. However, the factors in this paragraph § 261.4(a)(24) or (25), whether the (b) Legitimate recycling must involve do not have to be met for the recycling reclaimer or intermediate facility has a hazardous secondary material that to be considered legitimate. In financial assurance (not applicable for provides a useful contribution to the evaluating the extent to which these persons managing hazardous secondary recycling process or to a product or factors are met and in determining

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whether a process that does not meet the metal recovery from the hazardous (ii) A hazardous secondary material is one or both of these factors is still secondary materials meets the same not discarded if it is generated and legitimate, persons can consider the requirements as those specified for reclaimed under the control of the protectiveness of the storage methods, metals recovery from hazardous waste generator as defined in § 260.10, it is not exposure from toxics in the product, the found in § 266.100(d)(1)–(3) of this speculatively accumulated as defined in bioavailability of the toxics in the chapter, and if the residuals meet the § 261.1(c)(8), it is handled only in non- product, and other relevant requirements specified in § 266.112 of land-based units and is contained in considerations. this chapter. such units, it is generated and reclaimed * * * * * within the United States and its PART 261—IDENTIFICATION AND territories, it is not otherwise subject to ■ 10. Section 261.2 is amended by LISTING OF HAZARDOUS WASTE material-specific management revising paragraph (a)(1), (a)(2), (c)(3) conditions under § 261.4(a) when ■ 8. The authority citation for part 261 and Table 1 in paragraph (c)(4) to read reclaimed, it is not a spent lead acid continues to read as follows: as follows: battery (see § 266.80 and § 273.2), it Authority: 42 U.S.C. 6905, 6912(a), 6921, § 261.2 Definition of solid waste. does not meet the listing description for 6922, 6924(y), and 6938. * * * * * K171 or K172 in § 261.32, and the Subpart A—[Amended] (a)(1) A solid waste is any discarded reclamation of the material is legitimate, material that is not excluded under as specified under § 260.43. (See also ■ 9. Section 261.1 is amended by § 261.4(a) or that is not excluded by a the notification requirements of revising paragraph (c)(4) to read as variance granted under §§ 260.30 and § 260.42). (For hazardous secondary follows: 260.31 or that is not excluded by a non- materials managed in land-based units, see § 261.4(a)(23)). § 261.1 Purpose and scope. waste determination under §§ 260.30 and 260.34. * * * * * * * * * * (c) * * * (2)(i) A discarded material is any (c) * * * (4) A material is ‘‘reclaimed’’ if it is material which is: (3) Reclaimed. Materials noted with a processed to recover a usable product, (A) Abandoned, as explained in ‘‘—’’ in column 3 of Table 1 are not or if it is regenerated. Examples are paragraph (b) of this section; or solid wastes when reclaimed. Materials recovery of lead values from spent (B) Recycled, as explained in noted with an ‘‘*’’ in column 3 of Table batteries and regeneration of spent paragraph (c) of this section; or 1 are solid wastes when reclaimed solvents. In addition, for purposes of (C) Considered inherently waste-like, unless they meet the requirements of §§ 261.2(a)(2)(ii), 261.4(a)(23), and as explained in paragraph (d) of this §§ 261.2(a)(2)(ii), or 261.4(a)(17), or 261.4(a)(24) smelting, melting and section; or 261.4(a)(23), or 261.4(a)(24) or refining furnaces are considered to be (D) A military munition identified as 261.4(a)(25). solely engaged in metals reclamation if a solid waste in § 266.202. (4) * * *

TABLE 1

Reclamation (261.2(c)(3)), except as Use constituting Energy recovery/ provided in Speculative disposal fuel §§ 261.2(a)(2)(ii), accumulation (§ 261.2(c)(1)) (§ 261.2(c)(2)) 261.4(a)(17), (§ 261.2(c)(4)) 261.4(a)(23), 261.4(a)(24), or 261.4(a)(25)

1 2 3 4

Spent Materials...... (*) (*) (*) (*) Sludges (listed in 40 CFR Part 261.31 or 261.32) ...... (*) (*) (*) (*) Sludges exhibiting a characteristic of hazardous waste ...... (*) (*) — (*) By-products (listed in 40 CFR 261.31 or 261.32) ...... (*) (*) (*) (*) By-products exhibiting a characteristic of hazardous waste ... (*) (*) — (*) Commercial chemical products listed in 40 CFR 261.33 ...... (*) (*) — — Scrap metal other than excluded scrap metal (see 261.1(c)(9)) ...... (*) (*) (*) (*) Note: The terms ‘‘spent materials,’’ ‘‘sludges,’’ ‘‘by-products,’’ and ‘‘scrap metal’’ and ‘‘processed scrap metal’’ are defined in § 261.1.

* * * * * managed in land-based units as defined (iv) The material is not otherwise ■ 11. Section 261.4 is amended by in § 260.10 of this chapter is not a solid subject to material-specific management adding new paragraphs (a)(23), (24), and waste provided that: conditions under paragraph (a) of this (25) to read as follows: (i) The material is contained; section when reclaimed, it is not a spent (ii) The material is a hazardous lead acid battery (see § 266.80 and § 261.4 Exclusions. secondary material generated and § 273.2 of this chapter), and it does not (a) * * * reclaimed under the control of the meet the listing description for K171 or (23) Hazardous secondary material generator, as defined in § 260.10; K172 in § 261.32; generated and reclaimed within the (iii) The material is not speculatively United States or its territories and accumulated, as defined in § 261.1(c)(8);

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(v) The reclamation of the material is the reclamation facility identified by the (3) Does publicly available legitimate, as specified under § 260.43 hazardous secondary material generator, information indicate that the of this chapter; and and the hazardous secondary material reclamation facility or any intermediate (vi) In addition, persons claiming the generator must perform reasonable facility that is used by the hazardous exclusion under this paragraph (a)(23) efforts to ensure that the intermediate secondary material generator has not must provide notification as required by facility will manage the hazardous had any formal enforcement actions § 260.42 of this chapter. (For hazardous secondary material in a manner that is taken against the facility in the previous secondary material managed in a non- protective of human health and the three years for violations of the RCRA land-based unit, see § 261.2(a)(2)(ii)). environment. Reasonable efforts must be hazardous waste regulations and has not (24) Hazardous secondary material repeated at a minimum of every three been classified as a significant non- that is generated and then transferred to years for the hazardous secondary complier with RCRA Subtitle C? In another person for the purpose of material generator to claim the answering this question, the hazardous reclamation is not a solid waste, exclusion and to send the hazardous secondary material generator can rely on provided that: secondary materials to each reclaimer the publicly available information from (i) The material is not speculatively and any intermediate facility. In making EPA or the state. If the reclamation accumulated, as defined in § 261.1(c)(8); these reasonable efforts, the generator facility or any intermediate facility that (ii) The material is not handled by any may use any credible evidence is used by the hazardous secondary person or facility other than the available, including information material generator has had a formal hazardous secondary material generator, gathered by the hazardous secondary enforcement action taken against the the transporter, an intermediate facility material generator, provided by the facility in the previous three years for or a reclaimer, and, while in transport, reclaimer or intermediate facility, and/ violations of the RCRA hazardous waste is not stored for more than 10 days at or provided by a third party. The regulations and has been classified as a a transfer facility, as defined in § 260.10 hazardous secondary material generator significant non-complier with RCRA of this chapter, and is packaged must affirmatively answer all of the Subtitle C, does the hazardous according to applicable Department of following questions for each secondary material generator have Transportation regulations at 49 CFR reclamation facility and any credible evidence that the facilities will Parts 173, 178, and 179 while in intermediate facility: manage the hazardous secondary transport; materials properly? In answering this (iii) The material is not otherwise (1) Does the available information indicate that the reclamation process is question, the hazardous secondary subject to material-specific management material generator can obtain additional conditions under paragraph (a) of this legitimate pursuant to § 260.43 of this chapter? In answering this question, the information from EPA, the state, or the section when reclaimed, it is not a spent facility itself that the facility has lead-acid battery (see § 266.80 and hazardous secondary material generator can rely on their existing knowledge of addressed the violations, taken remedial § 273.2 of this chapter), and it does not steps to address the violations and meet the listing description for K171 or the physical and chemical properties of the hazardous secondary material, as prevent future violations, or that the K172 in § 261.32; violations are not relevant to the proper well as information from other sources (iv) The reclamation of the material is management of the hazardous secondary (e.g., the reclamation facility, audit legitimate, as specified under § 260.43 materials. of this chapter; reports, etc.) about the reclamation (4) Does the available information (v) The hazardous secondary material process. (By responding to this question, indicate that the reclamation facility generator satisfies all of the following the hazardous secondary material and any intermediate facility that is conditions: generator has also satisfied its used by the hazardous secondary (A) The material must be contained. requirement in § 260.43(a) of this material generator have the equipment (B) Prior to arranging for transport of chapter to be able to demonstrate that and trained personnel to safely recycle hazardous secondary materials to a the recycling is legitimate). the hazardous secondary material? In reclamation facility (or facilities) where (2) Does the publicly available answering this question, the generator the management of the hazardous information indicate that the may rely on a description by the secondary materials is not addressed reclamation facility and any reclamation facility or by an under a RCRA Part B permit or interim intermediate facility that is used by the independent third party of the status standards, the hazardous hazardous secondary material generator equipment and trained personnel to be secondary material generator must make notified the appropriate authorities of used to recycle the generator’s reasonable efforts to ensure that each hazardous secondary materials hazardous secondary material. reclaimer intends to properly and reclamation activities pursuant to (5) If residuals are generated from the legitimately reclaim the hazardous § 260.42 of this chapter and have they reclamation of the excluded hazardous secondary material and not discard it, notified the appropriate authorities that secondary materials, does the and that each reclaimer will manage the the financial assurance condition is reclamation facility have the permits hazardous secondary material in a satisfied per paragraph (a)(24)(vi)(F) of required (if any) to manage the manner that is protective of human this section? In answering these residuals? If not, does the reclamation health and the environment. If the questions, the hazardous secondary facility have a contract with an hazardous secondary material will be material generator can rely on the appropriately permitted facility to passing through an intermediate facility available information documenting the dispose of the residuals? If not, does the where the management of the hazardous reclamation facility’s and any hazardous secondary material generator secondary materials is not addressed intermediate facility’s compliance with have credible evidence that the under a RCRA Part B permit or interim the notification requirements per residuals will be managed in a manner status standards, the hazardous § 260.42 of this chapter, including the that is protective of human health and secondary material generator must make requirement in § 260.42(a)(5) to notify the environment? In answering these contractual arrangements with the EPA whether the reclaimer or questions, the hazardous secondary intermediate facility to ensure that the intermediate facility has financial material generator can rely on publicly hazardous secondary material is sent to assurance. available information from EPA or the

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state, or information provided by the type and quantity of the hazardous papers, or electronic confirmations of facility itself. secondary materials received and the receipt). (C) The hazardous secondary material date which the hazardous secondary (D) The reclaimer and intermediate generator must maintain for a minimum materials were received. This facility must manage the hazardous of three years documentation and requirement may be satisfied by routine secondary material in a manner that is certification that reasonable efforts were business records (e.g., financial records, at least as protective as that employed made for each reclamation facility and, bills of lading, copies of DOT shipping for analogous raw material and must be if applicable, intermediate facility papers, or electronic confirmations of contained. An ‘‘analogous raw material’’ where the management of the hazardous receipt); and is a raw material for which a hazardous secondary materials is not addressed (vi) Reclaimers of hazardous secondary material is a substitute and under a RCRA Part B permit or interim secondary material excluded from serves the same function and has similar status standards prior to transferring regulation under this exclusion and physical and chemical properties as the hazardous secondary material. intermediate facilities as defined in hazardous secondary material. Documentation and certification must § 260.10 of this chapter satisfy all of the (E) Any residuals that are generated be made available upon request by a following conditions: from reclamation processes will be regulatory authority within 72 hours, or (A) The reclaimer and intermediate managed in a manner that is protective within a longer period of time as facility must maintain at its facility for of human health and the environment. specified by the regulatory authority. no less than three (3) years records of all If any residuals exhibit a hazardous The certification statement must: shipments of hazardous secondary characteristic according to subpart C of (1) Include the printed name and material that were received at the 40 CFR part 261, or if they themselves official title of an authorized facility and, if applicable, for all are specifically listed in subpart D of 40 representative of the hazardous shipments of hazardous secondary CFR part 261, such residuals are secondary material generator company, materials that were received and hazardous wastes and must be managed the authorized representative’s subsequently sent off-site from the in accordance with the applicable signature, and the date signed; facility for further reclamation. For each requirements of 40 CFR parts 260 (2) Incorporate the following shipment, these records must at a through 272. language: ‘‘I hereby certify in good faith minimum contain the following (F) The reclaimer and intermediate and to the best of my knowledge that, information: facility has financial assurance as prior to arranging for transport of (1) Name of the transporter and date required under subpart H of 40 CFR part excluded hazardous secondary materials of the shipment; 261. to [insert name(s) of reclamation facility (2) Name and address of the (vii) In addition, all persons claiming and any intermediate facility], hazardous secondary material generator the exclusion under this paragraph reasonable efforts were made in and, if applicable, the name and address (a)(24) of this section must provide accordance with § 261.4(a)(24)(v)(B) to of the reclaimer or intermediate facility notification as required under § 260.42 ensure that the hazardous secondary which the hazardous secondary of this chapter. materials would be recycled materials were received from; (25) Hazardous secondary material legitimately, and otherwise managed in (3) The type and quantity of that is exported from the United States a manner that is protective of human hazardous secondary material in the and reclaimed at a reclamation facility health and the environment, and that shipment; and located in a foreign country is not a such efforts were based on current and (4) For hazardous secondary materials solid waste, provided that the hazardous accurate information.’’ that, after being received by the secondary material generator complies (D) The hazardous secondary material reclaimer or intermediate facility, were with the applicable requirements of generator must maintain at the subsequently transferred off-site for paragraph (a)(24)(i)–(v) of this section generating facility for no less than three further reclamation, the name and (excepting paragraph (a)(v)(B)(2) of this (3) years records of all off-site shipments address of the (subsequent) reclaimer section for foreign reclaimers and of hazardous secondary materials. For and, if applicable, the name and address foreign intermediate facilities), and that each shipment, these records must, at a of each intermediate facility to which the hazardous secondary material minimum, contain the following the hazardous secondary material was generator also complies with the information: sent. following requirements: (1) Name of the transporter and date (B) The intermediate facility must (i) Notify EPA of an intended export of the shipment; send the hazardous secondary material before the hazardous secondary material (2) Name and address of each to the reclaimer(s) designated by the is scheduled to leave the United States. reclaimer and, if applicable, the name hazardous secondary materials A complete notification must be and address of each intermediate facility generator. submitted at least sixty (60) days before to which the hazardous secondary (C) The reclaimer and intermediate the initial shipment is intended to be material was sent; facility must send to the hazardous shipped off-site. This notification may (3) The type and quantity of secondary material generator cover export activities extending over a hazardous secondary material in the confirmations of receipt for all off-site twelve (12) month or lesser period. The shipment. shipments of hazardous secondary notification must be in writing, signed (E) The hazardous secondary material materials. Confirmations of receipt must by the hazardous secondary material generator must maintain at the include the name and address of the generator, and include the following generating facility for no less than three reclaimer (or intermediate facility), the information: (3) years confirmations of receipt from type and quantity of the hazardous (A) Name, mailing address, telephone each reclaimer and, if applicable, each secondary materials received and the number and EPA ID number (if intermediate facility for all off-site date which the hazardous secondary applicable) of the hazardous secondary shipments of hazardous secondary materials were received. This material generator; materials. Confirmations of receipt must requirement may be satisfied by routine (B) A description of the hazardous include the name and address of the business records (e.g., financial records, secondary material and the EPA reclaimer (or intermediate facility), the bills of lading, copies of DOT shipping hazardous waste number that would

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apply if the hazardous secondary (a)(25)(i)(A) of this section and date of issuance of the material was managed as hazardous decreases in the quantity of hazardous acknowledgement of receipt of waste and the U.S. DOT proper shipping secondary material indicated pursuant notification by the competent authority name, hazard class and ID number (UN/ to paragraph (a)(25)(i)(D) of this section, of the receiving country, the NA) for each hazardous secondary when the conditions specified on the transboundary movement may material as identified in 49 CFR parts original notification change (including commence. In such cases, EPA will send 171 through 177; any exceedance of the estimate of the an Acknowledgment of Consent to (C) The estimated frequency or rate at quantity of hazardous secondary inform the hazardous secondary which the hazardous secondary material material specified in the original material generator that the receiving is to be exported and the period of time notification), the hazardous secondary country and any relevant transit over which the hazardous secondary material generator must provide EPA countries have not objected to the material is to be exported; with a written renotification of the shipment, and are thus presumed to (D) The estimated total quantity of change. The shipment cannot take place have consented tacitly. Tacit consent hazardous secondary material; until consent of the receiving country to expires one (1) calendar year after the (E) All points of entry to and the changes (except for changes to close of the thirty (30) day period; departure from each foreign country paragraph (a)(25)(i)(I) of this section and renotification and renewal of all through which the hazardous secondary in the ports of entry to and departure consents is required for exports after material will pass; from transit countries pursuant to that date. (F) A description of the means by paragraphs (a)(25)(i)(E) of this section) (viii) A copy of the Acknowledgment which each shipment of the hazardous has been obtained and the hazardous of Consent must accompany the secondary material will be transported secondary material generator receives shipment. The shipment must conform (e.g., mode of transportation vehicle (air, from EPA an Acknowledgment of to the terms of the Acknowledgment of highway, rail, water, etc.), type(s) of Consent reflecting the receiving Consent. container (drums, boxes, tanks, etc.)); country’s consent to the changes. (ix) If a shipment cannot be delivered (G) A description of the manner in (iv) Upon request by EPA, the which the hazardous secondary material for any reason to the reclaimer, hazardous secondary material generator intermediate facility or the alternate will be reclaimed in the receiving shall furnish to EPA any additional country; reclaimer or alternate intermediate information which a receiving country facility, the hazardous secondary (H) The name and address of the requests in order to respond to a reclaimer, any intermediate facility and material generator must re-notify EPA of notification. a change in the conditions of the any alternate reclaimer and intermediate (v) EPA will provide a complete original notification to allow shipment facilities; and notification to the receiving country and to a new reclaimer in accordance with (I) The name of any transit countries any transit countries. A notification is paragraph (iii) of this section and obtain through which the hazardous secondary complete when EPA receives a material will be sent and a description notification which EPA determines another Acknowledgment of Consent. of the approximate length of time it will satisfies the requirements of paragraph (x) Hazardous secondary material remain in such countries and the nature (a)(25)(i) of this section. Where a claim generators must keep a copy of each of its handling while there (for purposes of confidentiality is asserted with notification of intent to export and each of this section, the terms respect to any notification information Acknowledgment of Consent for a ‘‘Acknowledgement of Consent’’, required by paragraph (a)(25)(i) of this period of three years following receipt ‘‘receiving country’’ and ‘‘transit section, EPA may find the notification of the Acknowledgment of Consent. country’’ are used as defined in 40 CFR not complete until any such claim is (xi) Hazardous secondary material 262.51 with the exception that the terms resolved in accordance with 40 CFR generators must file with the in this section refer to hazardous 260.2. Administrator no later than March 1 of secondary materials, rather than (vi) The export of hazardous each year, a report summarizing the hazardous waste): secondary material under this paragraph types, quantities, frequency and (ii) Notifications submitted by mail (a)(25) is prohibited unless the receiving ultimate destination of all hazardous should be sent to the following mailing country consents to the intended export. secondary materials exported during the address: Office of Enforcement and When the receiving country consents in previous calendar year. Annual reports Compliance Assurance, Office of writing to the receipt of the hazardous submitted by mail should be sent to the Federal Activities, International secondary material, EPA will send an following address: Office of Compliance Assurance Division, (Mail Acknowledgment of Consent to the Enforcement and Compliance Code 2254A), Environmental Protection hazardous secondary material generator. Assurance, Office of Federal Activities, Agency, 1200 Pennsylvania Ave., NW., Where the receiving country objects to International Compliance Assurance Washington, DC 20460. Hand-delivered receipt of the hazardous secondary Division (Mail Code 2254A), notifications should be delivered to: material or withdraws a prior consent, Environmental Protection Agency, 1200 Office of Enforcement and Compliance EPA will notify the hazardous Pennsylvania Ave., NW., Washington, Assurance, Office of Federal Activities, secondary material generator in writing. DC 20460. Hand-delivered reports International Compliance Assurance EPA will also notify the hazardous should be delivered to: Office of Division, Environmental Protection secondary material generator of any Enforcement and Compliance Agency, Ariel Rios Bldg., Room 6144, responses from transit countries. Assurance, Office of Federal Activities, 12th St. and Pennsylvania Ave., NW., (vii) For exports to OECD Member International Compliance Assurance Washington, DC 20004. In both cases, countries, the receiving country may Division, Environmental Protection the following shall be prominently respond to the notification using tacit Agency, Ariel Rios Bldg., Room 6144, displayed on the front of the envelope: consent. If no objection has been lodged 12th St. and Pennsylvania Ave., NW., ‘‘Attention: Notification of Intent to by any receiving country or transit Washington, DC 20004. Such reports Export.’’ countries to a notification provided must include the following information: (iii) Except for changes to the pursuant to paragraph (a)(25)(i) of this (A) Name, mailing and site address, telephone number in paragraph section within thirty (30) days after the and EPA ID number (if applicable) of

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the hazardous secondary material reclamation and intermediate facilities year and before submission of updated generator; managing hazardous secondary information to the Regional (B) The calendar year covered by the materials excluded under 40 CFR Administrator as specified in report; § 261.4(a)(24), except as provided § 261.143(e)(3). The adjustment may be (C) The name and site address of each otherwise in this section. made by recalculating the cost estimate reclaimer and intermediate facility; (b) States and the Federal government in current dollars, or by using an (D) By reclaimer and intermediate are exempt from the financial assurance inflation factor derived from the most facility, for each hazardous secondary requirements of this subpart. recent Implicit Price Deflator for Gross material exported, a description of the National Product published by the U.S. hazardous secondary material and the § 261.141 Definitions of terms as used in this subpart. Department of Commerce in its Survey EPA hazardous waste number that of Current Business, as specified in would apply if the hazardous secondary The terms defined in § 265.141(d), (f), paragraphs (b)(1) and (2) of this section. material was managed as hazardous (g), and (h) of this chapter have the same The inflation factor is the result of waste, DOT hazard class, the name and meaning in this subpart as they do in dividing the latest published annual U.S. EPA ID number (where applicable) § 265.141 of this chapter. Deflator by the Deflator for the previous for each transporter used, the total § 261.142 Cost estimate. year. amount of hazardous secondary material (a) The owner or operator must have (1) The first adjustment is made by shipped and the number of shipments a detailed written estimate, in current multiplying the cost estimate by the pursuant to each notification; dollars, of the cost of disposing of any inflation factor. The result is the (E) A certification signed by the adjusted cost estimate. hazardous secondary material generator hazardous secondary material as listed or characteristic hazardous waste, and (2) Subsequent adjustments are made which states: ‘‘I certify under penalty of by multiplying the latest adjusted cost law that I have personally examined and the potential cost of closing the facility as a treatment, storage, and disposal estimate by the latest inflation factor. am familiar with the information (c) During the active life of the submitted in this and all attached facility. (1) The estimate must equal the cost facility, the owner or operator must documents, and that based on my of conducting the activities described in revise the cost estimate no later than 30 inquiry of those individuals paragraph (a) of this section at the point days after a change in a facility’s immediately responsible for obtaining when the extent and manner of the operating plan or design that would the information, I believe that the facility’s operation would make these increase the costs of conducting the submitted information is true, accurate, activities the most expensive; and activities described in paragraph (a) or and complete. I am aware that there are (2) The cost estimate must be based no later than 60 days after an significant penalties for submitting false on the costs to the owner or operator of unexpected event which increases the information including the possibility of hiring a third party to conduct these cost of conducting the activities fine and imprisonment.’’ activities. A third party is a party who described in paragraph (a) of this (xii) All persons claiming an is neither a parent nor a subsidiary of section. The revised cost estimate must exclusion under this paragraph (a)(25) the owner or operator. (See definition of be adjusted for inflation as specified in must provide notification as required by parent corporation in § 265.141(d) of paragraph (b) of this section. § 260.42 of this chapter. this chapter.) The owner or operator (d) The owner or operator must keep * * * * * may use costs for on-site disposal in the following at the facility during the Subparts F–G [Reserved] accordance with applicable operating life of the facility: The latest requirements if he can demonstrate that cost estimate prepared in accordance ■ 12. In part 261, Subpart F and Subpart on-site disposal capacity will exist at all with paragraphs (a) and (c) and, when G are added and reserved. times over the life of the facility. this estimate has been adjusted in ■ 13. Part 261 is amended by adding (3) The cost estimate may not accordance with paragraph (b), the latest new Subpart H to read as follows: incorporate any salvage value that may adjusted cost estimate. be realized with the sale of hazardous Subpart H—Financial Requirements for secondary materials, or hazardous or § 261.143 Financial assurance condition. Management of Excluded Hazardous Per § 261.4(a)(24)(vi)(F) of this Secondary Materials non-hazardous wastes if applicable under § 265.5113(d) of this chapter, chapter, an owner or operator of a Sec. facility structures or equipment, land, or reclamation or intermediate facility 261.140 Applicability. must have financial assurance as a 261.141 Definitions of terms as used in this other assets associated with the facility. subpart. (4) The owner or operator may not condition of the exclusion as required 261.142 Cost estimate. incorporate a zero cost for hazardous under § 261.4(a)(24) of this chapter. He 261.143 Financial assurance condition. secondary materials, or hazardous or must choose from the options as 261.144–261.146 [reserved]. non-hazardous wastes if applicable specified in paragraphs (a) through (e) of 261.147 Liability requirements. under § 265.5113(d) of this chapter that this section. 261.148 Incapacity of owners or operators, might have economic value. (a) Trust fund. (1) An owner or guarantors, or financial institutions. (b) During the active life of the operator may satisfy the requirements of 261.149 Use of State-required mechanisms. facility, the owner or operator must this section by establishing a trust fund 261.150 State assumption of responsibility. adjust the cost estimate for inflation which conforms to the requirements of 261.151 Wording of the instruments. within 60 days prior to the anniversary this paragraph and submitting an Subpart H—Financial Requirements for date of the establishment of the originally signed duplicate of the trust Management of Excluded Hazardous financial instrument(s) used to comply agreement to the Regional Secondary Materials with § 261.143. For owners and Administrator. The trustee must be an operators using the financial test or entity which has the authority to act as § 261.140 Applicability. corporate guarantee, the cost estimate a trustee and whose trust operations are (a) The requirements of this subpart must be updated for inflation within 30 regulated and examined by a Federal or apply to owners or operators of days after the close of the firm’s fiscal State agency.

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(2) The wording of the trust agreement Administrator determines that the (B) Updating of Schedule A of the must be identical to the wording partial or final closure expenditures are trust agreement (see § 261.151(a)) to specified in § 261.151(a)(1), and the in accordance with the approved show current cost estimates; trust agreement must be accompanied closure plan, or otherwise justified. If (C) Annual valuations as required by by a formal certification of the Regional Administrator has reason the trust agreement; and acknowledgment (for example, see to believe that the maximum cost of (D) Notices of nonpayment as § 261.151(a)(2)). Schedule A of the trust closure over the remaining life of the required by the trust agreement. agreement must be updated within 60 facility will be significantly greater than (4) The bond must guarantee that the days after a change in the amount of the the value of the trust fund, he may owner or operator will: current cost estimate covered by the withhold reimbursements of such (i) Fund the standby trust fund in an agreement. amounts as he deems prudent until he amount equal to the penal sum of the (3) The trust fund must be funded for determines, in accordance with bond before loss of the exclusion under the full amount of the current cost § 265.143(i) that the owner or operator § 261.4(a)(24) of this chapter or estimate before it may be relied upon to is no longer required to maintain (ii) Fund the standby trust fund in an satisfy the requirements of this section. financial assurance for final closure of amount equal to the penal sum within (4) Whenever the current cost the facility. If the Regional 15 days after an administrative order to estimate changes, the owner or operator Administrator does not instruct the begin closure issued by the Regional must compare the new estimate with the trustee to make such reimbursements, Administrator becomes final, or within trustee’s most recent annual valuation of he will provide to the owner or operator 15 days after an order to begin closure the trust fund. If the value of the fund a detailed written statement of reasons. is issued by a U.S. district court or other is less than the amount of the new (8) The Regional Administrator will court of competent jurisdiction; or (iii) Provide alternate financial estimate, the owner or operator, within agree to termination of the trust when: assurance as specified in this section, 60 days after the change in the cost (i) An owner or operator substitutes and obtain the Regional Administrator’s estimate, must either deposit an amount alternate financial assurance as written approval of the assurance into the fund so that its value after this specified in this section; or deposit at least equals the amount of the provided, within 90 days after receipt (ii) The Regional Administrator current cost estimate, or obtain other by both the owner or operator and the releases the owner or operator from the financial assurance as specified in this Regional Administrator of a notice of requirements of this section in section to cover the difference. cancellation of the bond from the surety. (5) If the value of the trust fund is accordance with paragraph (i) of this (5) Under the terms of the bond, the greater than the total amount of the section. surety will become liable on the bond current cost estimate, the owner or (b) Surety bond guaranteeing payment obligation when the owner or operator operator may submit a written request to into a trust fund. (1) An owner or fails to perform as guaranteed by the the Regional Administrator for release of operator may satisfy the requirements of bond. the amount in excess of the current cost this section by obtaining a surety bond (6) The penal sum of the bond must estimate. which conforms to the requirements of be in an amount at least equal to the (6) If an owner or operator substitutes this paragraph and submitting the bond current cost estimate, except as other financial assurance as specified in to the Regional Administrator. The provided in paragraph (f) of this section. this section for all or part of the trust surety company issuing the bond must, (7) Whenever the current cost fund, he may submit a written request at a minimum, be among those listed as estimate increases to an amount greater to the Regional Administrator for release acceptable sureties on Federal bonds in than the penal sum, the owner or of the amount in excess of the current Circular 570 of the U.S. Department of operator, within 60 days after the cost estimate covered by the trust fund. the Treasury. increase, must either cause the penal (7) Within 60 days after receiving a (2) The wording of the surety bond sum to be increased to an amount at request from the owner or operator for must be identical to the wording least equal to the current cost estimate release of funds as specified in specified in § 261.151(b). and submit evidence of such increase to paragraph (a) (5) or (6) of this section, (3) The owner or operator who uses a the Regional Administrator, or obtain the Regional Administrator will instruct surety bond to satisfy the requirements other financial assurance as specified in the trustee to release to the owner or of this section must also establish a this section to cover the increase. operator such funds as the Regional standby trust fund. Under the terms of Whenever the current cost estimate Administrator specifies in writing. If the the bond, all payments made thereunder decreases, the penal sum may be owner or operator begins final closure will be deposited by the surety directly reduced to the amount of the current under subpart G of 40 CFR part 264 or into the standby trust fund in cost estimate following written approval 265, an owner or operator may request accordance with instructions from the by the Regional Administrator. reimbursements for partial or final Regional Administrator. This standby (8) Under the terms of the bond, the closure expenditures by submitting trust fund must meet the requirements surety may cancel the bond by sending itemized bills to the Regional specified in paragraph (a) of this notice of cancellation by certified mail Administrator. The owner or operator section, except that: to the owner or operator and to the may request reimbursements for partial (i) An originally signed duplicate of Regional Administrator. Cancellation closure only if sufficient funds are the trust agreement must be submitted may not occur, however, during the 120 remaining in the trust fund to cover the to the Regional Administrator with the days beginning on the date of receipt of maximum costs of closing the facility surety bond; and the notice of cancellation by both the over its remaining operating life. No (ii) Until the standby trust fund is owner or operator and the Regional later than 60 days after receiving bills funded pursuant to the requirements of Administrator, as evidenced by the for partial or final closure activities, the this section, the following are not return receipts. Regional Administrator will instruct the required by these regulations: (9) The owner or operator may cancel trustee to make reimbursements in those (A) Payments into the trust fund as the bond if the Regional Administrator amounts as the Regional Administrator specified in paragraph (a) of this has given prior written consent based on specifies in writing, if the Regional section; his receipt of evidence of alternate

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financial assurance as specified in this decision not to extend the expiration (d) Insurance. (1) An owner or section. date. Under the terms of the letter of operator may satisfy the requirements of (c) Letter of credit. (1) An owner or credit, the 120 days will begin on the this section by obtaining insurance operator may satisfy the requirements of date when both the owner or operator which conforms to the requirements of this section by obtaining an irrevocable and the Regional Administrator have this paragraph and submitting a standby letter of credit which conforms received the notice, as evidenced by the certificate of such insurance to the to the requirements of this paragraph return receipts. Regional Administrator At a minimum, and submitting the letter to the Regional (6) The letter of credit must be issued the insurer must be licensed to transact Administrator. The issuing institution in an amount at least equal to the the business of insurance, or eligible to must be an entity which has the current cost estimate, except as provide insurance as an excess or authority to issue letters of credit and provided in paragraph (f) of this section. surplus lines insurer, in one or more whose letter-of-credit operations are (7) Whenever the current cost States. regulated and examined by a Federal or estimate increases to an amount greater (2) The wording of the certificate of State agency. than the amount of the credit, the owner insurance must be identical to the (2) The wording of the letter of credit or operator, within 60 days after the wording specified in § 261.151(d). must be identical to the wording increase, must either cause the amount (3) The insurance policy must be specified in § 261.151(c). of the credit to be increased so that it issued for a face amount at least equal (3) An owner or operator who uses a at least equals the current cost estimate to the current cost estimate, except as letter of credit to satisfy the and submit evidence of such increase to provided in paragraph (f) of this section. requirements of this section must also the Regional Administrator, or obtain The term ‘‘face amount’’ means the total establish a standby trust fund. Under other financial assurance as specified in amount the insurer is obligated to pay the terms of the letter of credit, all this section to cover the increase. under the policy. Actual payments by amounts paid pursuant to a draft by the Whenever the current cost estimate the insurer will not change the face Regional Administrator will be decreases, the amount of the credit may amount, although the insurer’s future deposited by the issuing institution be reduced to the amount of the current liability will be lowered by the amount directly into the standby trust fund in cost estimate following written approval of the payments. accordance with instructions from the by the Regional Administrator. (4) The insurance policy must Regional Administrator. This standby (8) Following a determination by the guarantee that funds will be available trust fund must meet the requirements Regional Administrator that the whenever needed to pay the cost of of the trust fund specified in paragraph hazardous secondary materials do not removal of all hazardous secondary (a) of this section, except that: meet the conditions of the exclusion materials from the unit, to pay the cost (i) An originally signed duplicate of under § 261.4(a)(24), the Regional of decontamination of the unit, to pay the trust agreement must be submitted Administrator may draw on the letter of the costs of the performance of activities to the Regional Administrator with the credit. required under subpart G of 40 CFR letter of credit; and (9) If the owner or operator does not parts 264 or 265, as applicable, for the (ii) Unless the standby trust fund is establish alternate financial assurance as facilities covered by this policy. The funded pursuant to the requirements of specified in this section and obtain policy must also guarantee that once this section, the following are not written approval of such alternate funds are needed, the insurer will be required by these regulations: assurance from the Regional responsible for paying out funds, up to (A) Payments into the trust fund as Administrator within 90 days after an amount equal to the face amount of specified in paragraph (a) of this receipt by both the owner or operator the policy, upon the direction of the section; and the Regional Administrator of a Regional Administrator, to such party or (B) Updating of Schedule A of the notice from the issuing institution that parties as the Regional Administrator trust agreement (see § 261.151(a)) to it has decided not to extend the letter of specifies. show current cost estimates; credit beyond the current expiration (5) After beginning partial or final (C) Annual valuations as required by date, the Regional Administrator will closure under 40 CFR parts 264 or 265, the trust agreement; and draw on the letter of credit. The as applicable, an owner or operator or (D) Notices of nonpayment as Regional Administrator may delay the any other authorized person may required by the trust agreement. drawing if the issuing institution grants request reimbursements for closure (4) The letter of credit must be an extension of the term of the credit. expenditures by submitting itemized accompanied by a letter from the owner During the last 30 days of any such bills to the Regional Administrator. The or operator referring to the letter of extension the Regional Administrator owner or operator may request credit by number, issuing institution, will draw on the letter of credit if the reimbursements only if the remaining and date, and providing the following owner or operator has failed to provide value of the policy is sufficient to cover information: The EPA Identification alternate financial assurance as the maximum costs of closing the Number (if any issued), name, and specified in this section and obtain facility over its remaining operating life. address of the facility, and the amount written approval of such assurance from Within 60 days after receiving bills for of funds assured for the facility by the the Regional Administrator. closure activities, the Regional letter of credit. (10) The Regional Administrator will Administrator will instruct the insurer (5) The letter of credit must be return the letter of credit to the issuing to make reimbursements in such irrevocable and issued for a period of at institution for termination when: amounts as the Regional Administrator least 1 year. The letter of credit must (i) An owner or operator substitutes specifies in writing if the Regional provide that the expiration date will be alternate financial assurance as Administrator determines that the automatically extended for a period of at specified in this section; or expenditures are in accordance with the least 1 year unless, at least 120 days (ii) The Regional Administrator approved plan or otherwise justified. If before the current expiration date, the releases the owner or operator from the the Regional Administrator has reason issuing institution notifies both the requirements of this section in to believe that the maximum cost over owner or operator and the Regional accordance with paragraph (i) of this the remaining life of the facility will be Administrator by certified mail of a section. significantly greater than the face

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amount of the policy, he may withhold court or other court of competent BBB as issued by Standard and Poor’s reimbursement of such amounts as he jurisdiction; or or Aaa, Aa, A, or Baa as issued by deems prudent until he determines, in (iv) The owner or operator is named Moody’s; and accordance with paragraph (h) of this as debtor in a voluntary or involuntary (B) Tangible net worth at least six section, that the owner or operator is no proceeding under Title 11 (Bankruptcy), times the sum of the current cost longer required to maintain financial U.S. Code; or estimates and the current plugging and assurance for the particular facility. If (v) The premium due is paid. abandonment cost estimates; and the Regional Administrator does not (9) Whenever the current cost (C) Tangible net worth of at least $10 instruct the insurer to make such estimate increases to an amount greater million; and reimbursements, he will provide to the than the face amount of the policy, the (D) Assets located in the United States owner or operator a detailed written owner or operator, within 60 days after amounting to at least 90 percent of total statement of reasons. the increase, must either cause the face assets or at least six times the sum of the (6) The owner or operator must amount to be increased to an amount at current cost estimates and the current maintain the policy in full force and least equal to the current cost estimate plugging and abandonment cost effect until the Regional Administrator and submit evidence of such increase to estimates. consents to termination of the policy by the Regional Administrator, or obtain (2) The phrase ‘‘current cost the owner or operator as specified in other financial assurance as specified in estimates’’ as used in paragraph (e)(1) of paragraph (i)(10) of this section. Failure this section to cover the increase. this section refers to the cost estimates to pay the premium, without Whenever the current cost estimate required to be shown in paragraphs 1– substitution of alternate financial decreases, the face amount may be 4 of the letter from the owner’s or assurance as specified in this section, reduced to the amount of the current operator’s chief financial officer will constitute a significant violation of cost estimate following written approval (§ 261.151(e)). The phrase ‘‘current these regulations warranting such by the Regional Administrator. plugging and abandonment cost remedy as the Regional Administrator (10) The Regional Administrator will estimates’’ as used in paragraph (e)(1) of deems necessary. Such violation will be give written consent to the owner or this section refers to the cost estimates deemed to begin upon receipt by the operator that he may terminate the required to be shown in paragraphs 1– Regional Administrator of a notice of insurance policy when: 4 of the letter from the owner’s or future cancellation, termination, or (i) An owner or operator substitutes operator’s chief financial officer failure to renew due to nonpayment of alternate financial assurance as (§ 144.70(f) of this chapter). (3) To demonstrate that he meets this the premium, rather than upon the date specified in this section; or test, the owner or operator must submit of expiration. (ii) The Regional Administrator releases the owner or operator from the the following items to the Regional (7) Each policy must contain a Administrator: provision allowing assignment of the requirements of this section in accordance with paragraph (i) of this (i) A letter signed by the owner’s or policy to a successor owner or operator. operator’s chief financial officer and Such assignment may be conditional section. (e) Financial test and corporate worded as specified in § 261.151(e); and upon consent of the insurer, provided guarantee. (1) An owner or operator (ii) A copy of the independent such consent is not unreasonably may satisfy the requirements of this certified public accountant’s report on refused. section by demonstrating that he passes examination of the owner’s or operator’s (8) The policy must provide that the a financial test as specified in this financial statements for the latest insurer may not cancel, terminate, or paragraph. To pass this test the owner completed fiscal year; and fail to renew the policy except for or operator must meet the criteria of (iii) If the chief financial officer’s failure to pay the premium. The either paragraph (e)(1) (i) or (ii) of this letter providing evidence of financial automatic renewal of the policy must, at section: assurance includes financial data a minimum, provide the insured with (i) The owner or operator must have: showing that the owner or operator the option of renewal at the face amount (A) Two of the following three ratios: satisfies paragraph (e)(1)(i) of this of the expiring policy. If there is a A ratio of total liabilities to net worth section that are different from the data failure to pay the premium, the insurer less than 2.0; a ratio of the sum of net in the audited financial statements may elect to cancel, terminate, or fail to income plus depreciation, depletion, referred to in paragraph (e)(3)(ii)of this renew the policy by sending notice by and amortization to total liabilities section or any other audited financial certified mail to the owner or operator greater than 0.1; and a ratio of current statement or data filed with the SEC, and the Regional Administrator. assets to current liabilities greater than then a special report from the owner’s Cancellation, termination, or failure to 1.5; and or operator’s independent certified renew may not occur, however, during (B) Net working capital and tangible public accountant to the owner or the 120 days beginning with the date of net worth each at least six times the sum operator is required. The special report receipt of the notice by both the of the current cost estimates and the shall be based upon an agreed upon Regional Administrator and the owner current plugging and abandonment cost procedures engagement in accordance or operator, as evidenced by the return estimates; and with professional auditing standards receipts. Cancellation, termination, or (C) Tangible net worth of at least $10 and shall describe the procedures failure to renew may not occur and the million; and performed in comparing the data in the policy will remain in full force and (D) Assets located in the United States chief financial officer’s letter derived effect in the event that on or before the amounting to at least 90 percent of total from the independently audited, year- date of expiration: assets or at least six times the sum of the end financial statements for the latest (i) The Regional Administrator deems current cost estimates and the current fiscal year with the amounts in such the facility abandoned; or plugging and abandonment cost financial statements, the findings of the (ii) Conditional exclusion or interim estimates. comparison, and the reasons for any status is lost, terminated, or revoked; or (ii) The owner or operator must have: differences. (iii) Closure is ordered by the (A) A current rating for his most (4) The owner or operator may obtain Regional Administrator or a U.S. district recent bond issuance of AAA, AA, A, or an extension of the time allowed for

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submission of the documents specified the requirements of paragraph (e)(1) of a ‘‘substantial business relationship’’ in paragraph (e)(3) of this section if the this section, require reports of financial with the owner or operator, this letter fiscal year of the owner or operator ends condition at any time from the owner or must describe this ‘‘substantial business during the 90 days prior to the effective operator in addition to those specified relationship’’ and the value received in date of these regulations and if the year- in paragraph (e)(3) of this section. If the consideration of the guarantee. The end financial statements for that fiscal Regional Administrator finds, on the terms of the guarantee must provide year will be audited by an independent basis of such reports or other that: certified public accountant. The information, that the owner or operator (i) Following a determination by the extension will end no later than 90 days no longer meets the requirements of Regional Administrator that the after the end of the owner’s or operator’s paragraph (e)(1) of this section, the hazardous secondary materials at the fiscal year. To obtain the extension, the owner or operator must provide owner or operator’s facility covered by owner’s or operator’s chief financial alternate financial assurance as this guarantee do not meet the officer must send, by the effective date specified in this section within 30 days conditions of the exclusion under of these regulations, a letter to the after notification of such a finding. § 261.4(a)(24) of this chapter, the Regional Administrator of each Region (8) The Regional Administrator may guarantor will dispose of any hazardous in which the owner’s or operator’s disallow use of this test on the basis of secondary material as hazardous waste facilities to be covered by the financial qualifications in the opinion expressed and close the facility in accordance with test are located. This letter from the by the independent certified public closure requirements found in parts 264 chief financial officer must: accountant in his report on examination or 265 of this chapter, as applicable, or (i) Request the extension; of the owner’s or operator’s financial establish a trust fund as specified in (ii) Certify that he has grounds to statements (see paragraph (e)(3)(ii) of paragraph (a) of this section in the name believe that the owner or operator meets this section). An adverse opinion or a of the owner or operator in the amount the criteria of the financial test; disclaimer of opinion will be cause for of the current cost estimate. (iii) Specify for each facility to be disallowance. The Regional (ii) The corporate guarantee will covered by the test the EPA Administrator will evaluate other remain in force unless the guarantor Identification Number (if any issued), qualifications on an individual basis. sends notice of cancellation by certified name, address, and current cost The owner or operator must provide mail to the owner or operator and to the estimates to be covered by the test; alternate financial assurance as Regional Administrator. Cancellation (iv) Specify the date ending the specified in this section within 30 days may not occur, however, during the 120 owner’s or operator’s last complete after notification of the disallowance. days beginning on the date of receipt of fiscal year before the effective date of (9) The owner or operator is no longer the notice of cancellation by both the these regulations in this subpart; required to submit the items specified in owner or operator and the Regional (v) Specify the date, no later than 90 paragraph (e)(3) of this section when: Administrator, as evidenced by the days after the end of such fiscal year, (i) An owner or operator substitutes return receipts. when he will submit the documents alternate financial assurance as (iii) If the owner or operator fails to specified in paragraph (e)(3) of this specified in this section; or provide alternate financial assurance as section; and (ii) The Regional Administrator specified in this section and obtain the (vi) Certify that the year-end financial releases the owner or operator from the written approval of such alternate statements of the owner or operator for requirements of this section in assurance from the Regional such fiscal year will be audited by an accordance with paragraph (i) of this Administrator within 90 days after independent certified public section. receipt by both the owner or operator accountant. (10) An owner or operator may meet and the Regional Administrator of a (5) After the initial submission of the requirements of this section by notice of cancellation of the corporate items specified in paragraph (e)(3) of obtaining a written guarantee. The guarantee from the guarantor, the this section, the owner or operator must guarantor must be the direct or higher- guarantor will provide such alternate send updated information to the tier parent corporation of the owner or financial assurance in the name of the Regional Administrator within 90 days operator, a firm whose parent owner or operator. after the close of each succeeding fiscal corporation is also the parent (f) Use of multiple financial year. This information must consist of corporation of the owner or operator, or mechanisms. An owner or operator may all three items specified in paragraph a firm with a ‘‘substantial business satisfy the requirements of this section (e)(3) of this section. relationship’’ with the owner or by establishing more than one financial (6) If the owner or operator no longer operator. The guarantor must meet the mechanism per facility. These meets the requirements of paragraph requirements for owners or operators in mechanisms are limited to trust funds, (e)(1) of this section, he must send paragraphs (e)(1) through (8) of this surety bonds, letters of credit, and notice to the Regional Administrator of section and must comply with the terms insurance. The mechanisms must be as intent to establish alternate financial of the guarantee. The wording of the specified in paragraphs (a) through (d) assurance as specified in this section. guarantee must be identical to the of this section, respectively, of this The notice must be sent by certified wording specified in § 261.151(g)(1). A section, except that it is the combination mail within 90 days after the end of the certified copy of the guarantee must of mechanisms, rather than the single fiscal year for which the year-end accompany the items sent to the mechanism, which must provide financial data show that the owner or Regional Administrator as specified in financial assurance for an amount at operator no longer meets the paragraph (e)(3) of this section. One of least equal to the current cost estimate. requirements. The owner or operator these items must be the letter from the If an owner or operator uses a trust fund must provide the alternate financial guarantor’s chief financial officer. If the in combination with a surety bond or a assurance within 120 days after the end guarantor’s parent corporation is also letter of credit, he may use the trust of such fiscal year. the parent corporation of the owner or fund as the standby trust fund for the (7) The Regional Administrator may, operator, the letter must describe the other mechanisms. A single standby based on a reasonable belief that the value received in consideration of the trust fund may be established for two or owner or operator may no longer meet guarantee. If the guarantor is a firm with more mechanisms. The Regional

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Administrator may use any or all of the determining the extent of from the unit and the unit has been mechanisms to provide for the facility. decontamination necessary to protect decontaminated in accordance with the (g) Use of a financial mechanism for human health and the environment; and specifications in the approved plan. The multiple facilities. An owner or operator (C) A detailed description of any other certification must be signed by the may use a financial assurance activities necessary to protect human owner or operator and by a qualified mechanism specified in this section to health and the environment during this Professional Engineer. Documentation meet the requirements of this section for timeframe, including, but not limited to, supporting the Professional Engineer’s more than one facility. Evidence of leachate collection, run-on and run-off certification must be furnished to the financial assurance submitted to the control, etc; and Regional Administrator, upon request, Regional Administrator must include a (D) A schedule for conducting the until he releases the owner or operator list showing, for each facility, the EPA activities described which, at a from the financial assurance Identification Number (if any issued), minimum, includes the total time requirements for § 261.4(a)(24)(vi)(F). name, address, and the amount of funds required to remove all excluded (i) Release of the owner or operator assured by the mechanism. If the hazardous secondary materials for from the requirements of this section. facilities covered by the mechanism are recycling and decontaminate all units Within 60 days after receiving in more than one Region, identical subject to financial assurance under certifications from the owner or operator evidence of financial assurance must be § 261.4(a)(24)(vi)(F) and the time submitted to and maintained with the required for intervening activities which and a qualified Professional Engineer Regional Administrators of all such will allow tracking of the progress of that all hazardous secondary materials Regions. The amount of funds available decontamination. have been removed from the facility or through the mechanism must be no less (3) The Regional Administrator will a unit at the facility and the facility or than the sum of funds that would be provide the owner or operator and the a unit has been decontaminated in available if a separate mechanism had public, through a newspaper notice, the accordance with the approved plan per been established and maintained for opportunity to submit written paragraph (h), the Regional each facility. In directing funds comments on the plan and request Administrator will notify the owner or available through the mechanism for modifications to the plan no later than operator in writing that he is no longer any of the facilities covered by the 30 days from the date of the notice. He required under § 261.4(a)(24)(vi)(F) to mechanism, the Regional Administrator will also, in response to a request or at maintain financial assurance for that may direct only the amount of funds his discretion, hold a public hearing facility or a unit at the facility, unless designated for that facility, unless the whenever such a hearing might clarify the Regional Administrator has reason owner or operator agrees to the use of one or more issues concerning the plan. to believe that all hazardous secondary additional funds available under the The Regional Administrator will give materials have not been removed from mechanism. public notice of the hearing at least 30 the facility or unit at a facility or that (h) Removal and Decontamination days before it occurs. (Public notice of the facility or unit has not been Plan for Release (1) An owner or the hearing may be given at the same decontaminated in accordance with the operator of a reclamation facility or an time as notice of the opportunity for the approved plan. The Regional intermediate facility who wishes to be public to submit written comments, and Administrator shall provide the owner released from his financial assurance the two notices may be combined.) The or operator a detailed written statement obligations under § 261.4(a)(24)(vi)(F) of Regional Administrator will approve, of any such reason to believe that all this chapter must submit a plan for modify, or disapprove the plan within hazardous secondary materials have not removing all hazardous secondary 90 days of its receipt. If the Regional been removed from the unit or that the material residues to the Regional Administrator does not approve the unit has not been decontaminated in Administrator at least 180 days prior to plan, he shall provide the owner or accordance with the approved plan. the date on which he expects to cease operator with a detailed written §§ 261.144–261.146 [Reserved] to operate under the exclusion. statement of reasons for the refusal and (2) The plan must include, at least: the owner or operator must modify the § 261.147 Liability requirements. (A) For each hazardous secondary plan or submit a new plan for approval materials storage unit subject to within 30 days after receiving such (a) Coverage for sudden accidental financial assurance requirements under written statement. The Regional occurrences. An owner or operator of a § 261.4(a)(24)(vi)(F), a description of Administrator will approve or modify hazardous secondary material how all excluded hazardous secondary this plan in writing within 60 days. If reclamation facility or an intermediate materials will be recycled or sent for the Regional Administrator modifies the facility subject to financial assurance recycling, and how all residues, plan, this modified plan becomes the requirements under § 261.4(a)(24)(vi)(F) contaminated containment systems approved plan. The Regional of this chapter, or a group of such (liners, etc), contaminated soils, Administrator must assure that the facilities, must demonstrate financial subsoils, structures, and equipment will approved plan is consistent with responsibility for bodily injury and be removed or decontaminated as paragraph (h) of this section. A copy of property damage to third parties caused necessary to protect human health and the modified plan with a detailed by sudden accidental occurrences the environment, and statement of reasons for the arising from operations of the facility or (B) A detailed description of the steps modifications must be mailed to the group of facilities. The owner or necessary to remove or decontaminate owner or operator. operator must have and maintain all hazardous secondary material (4) Within 60 days of completion of liability coverage for sudden accidental residues and contaminated containment the activities described for each occurrences in the amount of at least $1 system components, equipment, hazardous secondary materials million per occurrence with an annual structures, and soils including, but not management unit, the owner or operator aggregate of at least $2 million, limited to, procedures for cleaning must submit to the Regional exclusive of legal defense costs. This equipment and removing contaminated Administrator, by registered mail, a liability coverage may be demonstrated soils, methods for sampling and testing certification that all hazardous as specified in paragraphs (a) (1), (2), surrounding soils, and criteria for secondary materials have been removed (3), (4), (5), or (6) of this section:

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(1) An owner or operator may demonstrates the required coverage or operators who combine coverage demonstrate the required liability through the use of a combination of levels for sudden and nonsudden coverage by having liability insurance as financial assurances under this accidental occurrences must maintain specified in this paragraph. paragraph, the owner or operator shall liability coverage in the amount of at (i) Each insurance policy must be specify at least one such assurance as least $4 million per occurrence and $8 amended by attachment of the ‘‘primary’’ coverage and shall specify million annual aggregate. This liability Hazardous Secondary Material Facility other assurance as ‘‘excess’’ coverage. coverage may be demonstrated as Liability Endorsement, or evidenced by (7) An owner or operator shall notify specified in paragraph (b)(1), (2), (3), (4), a Certificate of Liability Insurance. The the Regional Administrator in writing (5), or (6) of this section: wording of the endorsement must be within 30 days whenever: (1) An owner or operator may identical to the wording specified in (i) A claim results in a reduction in demonstrate the required liability § 261.151(h). The wording of the the amount of financial assurance for coverage by having liability insurance as certificate of insurance must be liability coverage provided by a specified in this paragraph. identical to the wording specified in financial instrument authorized in (i) Each insurance policy must be § 261.151(i). The owner or operator paragraphs (a)(1) through (a)(6) of this amended by attachment of the must submit a signed duplicate original section; or Hazardous Secondary Material Facility of the endorsement or the certificate of (ii) A Certification of Valid Claim for Liability Endorsement or evidenced by insurance to the Regional bodily injury or property damages a Certificate of Liability Insurance. The Administrator, or Regional caused by a sudden or non-sudden wording of the endorsement must be Administrators if the facilities are accidental occurrence arising from the identical to the wording specified in located in more than one Region. If operation of a hazardous secondary § 261.151(h). The wording of the requested by a Regional Administrator, material reclamation facility or certificate of insurance must be the owner or operator must provide a intermediate facility is entered between identical to the wording specified in signed duplicate original of the the owner or operator and third-party § 261.151(i). The owner or operator insurance policy. claimant for liability coverage under must submit a signed duplicate original (ii) Each insurance policy must be paragraphs (a)(1) through (a)(6) of this of the endorsement or the certificate of issued by an insurer which, at a section; or insurance to the Regional minimum, is licensed to transact the (iii) A final court order establishing a Administrator, or Regional business of insurance, or eligible to judgment for bodily injury or property Administrators if the facilities are provide insurance as an excess or damage caused by a sudden or non- located in more than one Region. If surplus lines insurer, in one or more sudden accidental occurrence arising requested by a Regional Administrator, States. from the operation of a hazardous the owner or operator must provide a (2) An owner or operator may meet secondary material reclamation facility signed duplicate original of the the requirements of this section by or intermediate facility is issued against insurance policy. passing a financial test or using the the owner or operator or an instrument (ii) Each insurance policy must be guarantee for liability coverage as that is providing financial assurance for issued by an insurer which, at a specified in paragraphs (f) and (g) of this liability coverage under paragraphs minimum, is licensed to transact the section. (a)(1) through (a)(6) of this section. business of insurance, or eligible to (3) An owner or operator may meet (b) Coverage for nonsudden accidental provide insurance as an excess or the requirements of this section by occurrences. An owner or operator of a surplus lines insurer, in one or more obtaining a letter of credit for liability hazardous secondary material States. coverage as specified in paragraph (h) of reclamation facility or intermediate (2) An owner or operator may meet this section. facility with land-based units, as the requirements of this section by (4) An owner or operator may meet defined in § 260.10 of this chapter, passing a financial test or using the the requirements of this section by which are used to manage hazardous guarantee for liability coverage as obtaining a surety bond for liability secondary materials excluded under specified in paragraphs (f) and (g) of this coverage as specified in paragraph (i) of § 261.4(a)(24) of this chapter or a group section. this section. of such facilities, must demonstrate (3) An owner or operator may meet (5) An owner or operator may meet financial responsibility for bodily injury the requirements of this section by the requirements of this section by and property damage to third parties obtaining a letter of credit for liability obtaining a trust fund for liability caused by nonsudden accidental coverage as specified in paragraph (h) of coverage as specified in paragraph (j) of occurrences arising from operations of this section. this section. the facility or group of facilities. The (4) An owner or operator may meet (6) An owner or operator may owner or operator must have and the requirements of this section by demonstrate the required liability maintain liability coverage for obtaining a surety bond for liability coverage through the use of nonsudden accidental occurrences in coverage as specified in paragraph (i) of combinations of insurance, financial the amount of at least $3 million per this section. test, guarantee, letter of credit, surety occurrence with an annual aggregate of (5) An owner or operator may meet bond, and trust fund, except that the at least $6 million, exclusive of legal the requirements of this section by owner or operator may not combine a defense costs. An owner or operator obtaining a trust fund for liability financial test covering part of the who must meet the requirements of this coverage as specified in paragraph (j) of liability coverage requirement with a section may combine the required per- this section. guarantee unless the financial statement occurrence coverage levels for sudden (6) An owner or operator may of the owner or operator is not and nonsudden accidental occurrences demonstrate the required liability consolidated with the financial into a single per-occurrence level, and coverage through the use of statement of the guarantor. The amounts combine the required annual aggregate combinations of insurance, financial of coverage demonstrated must total at coverage levels for sudden and test, guarantee, letter of credit, surety least the minimum amounts required by nonsudden accidental occurrences into bond, and trust fund, except that the this section. If the owner or operator a single annual aggregate level. Owners owner or operator may not combine a

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financial test covering part of the requests a variance to provide such pass this test the owner or operator must liability coverage requirement with a technical and engineering information meet the criteria of paragraph (f)(1) (i) or guarantee unless the financial statement as is deemed necessary by the Regional (ii) of this section: of the owner or operator is not Administrator to determine a level of (i) The owner or operator must have: consolidated with the financial financial responsibility other than that (A) Net working capital and tangible statement of the guarantor. The amounts required by paragraph (a) or (b) of this net worth each at least six times the of coverage demonstrated must total at section. amount of liability coverage to be least the minimum amounts required by (d) Adjustments by the Regional demonstrated by this test; and this section. If the owner or operator Administrator. If the Regional (B) Tangible net worth of at least $10 demonstrates the required coverage Administrator determines that the levels million; and through the use of a combination of of financial responsibility required by (C) Assets in the United States financial assurances under this paragraph (a) or (b) of this section are amounting to either: paragraph, the owner or operator shall not consistent with the degree and (1) At least 90 percent of his total specify at least one such assurance as duration of risk associated with assets; or ‘‘primary’’ coverage and shall specify treatment and/or storage at the facility (2) at least six times the amount of other assurance as ‘‘excess’’ coverage. or group of facilities, the Regional liability coverage to be demonstrated by (7) An owner or operator shall notify Administrator may adjust the level of this test. the Regional Administrator in writing financial responsibility required under (ii) The owner or operator must have: within 30 days whenever: paragraph (a) or (b) of this section as (A) A current rating for his most (i) A claim results in a reduction in may be necessary to protect human recent bond issuance of AAA, AA, A, or the amount of financial assurance for health and the environment. This BBB as issued by Standard and Poor’s, liability coverage provided by a adjusted level will be based on the or Aaa, Aa, A, or Baa as issued by financial instrument authorized in Regional Administrator’s assessment of Moody’s; and paragraphs (b)(1) through (b)(6) of this the degree and duration of risk (B) Tangible net worth of at least $10 section; or associated with the ownership or million; and (ii) A Certification of Valid Claim for operation of the facility or group of (C) Tangible net worth at least six bodily injury or property damages facilities. In addition, if the Regional times the amount of liability coverage to caused by a sudden or non-sudden Administrator determines that there is a be demonstrated by this test; and accidental occurrence arising from the significant risk to human health and the (D) Assets in the United States operation of a hazardous secondary environment from nonsudden amounting to either: material treatment and/or storage accidental occurrences resulting from (1) At least 90 percent of his total facility is entered between the owner or the operations of a facility that is not a assets; or operator and third-party claimant for surface impoundment, pile, or land (2) at least six times the amount of liability coverage under paragraphs treatment facility, he may require that liability coverage to be demonstrated by (b)(1) through (b)(6) of this section; or an owner or operator of the facility this test. (iii) A final court order establishing a comply with paragraph (b) of this (2) The phrase ‘‘amount of liability judgment for bodily injury or property section. An owner or operator must coverage’’ as used in paragraph (f)(1) of damage caused by a sudden or non- furnish to the Regional Administrator, this section refers to the annual sudden accidental occurrence arising within a reasonable time, any aggregate amounts for which coverage is from the operation of a hazardous information which the Regional required under paragraphs (a) and (b) of secondary material treatment and/or Administrator requests to determine this section and the annual aggregate storage facility is issued against the whether cause exists for such amounts for which coverage is required owner or operator or an instrument that adjustments of level or type of coverage. under paragraphs (a) and (b) of 40 CFR is providing financial assurance for (e) Period of coverage. Within 60 days 264.147 and 265.147. liability coverage under paragraphs after receiving certifications from the (3) To demonstrate that he meets this (b)(1) through (b)(6) of this section. owner or operator and a qualified test, the owner or operator must submit (c) Request for variance. If an owner Professional Engineer that all hazardous the following three items to the Regional or operator can demonstrate to the secondary materials have been removed Administrator: satisfaction of the Regional from the facility or a unit at the facility (i) A letter signed by the owner’s or Administrator that the levels of and the facility or a unit has been operator’s chief financial officer and financial responsibility required by decontaminated in accordance with the worded as specified in § 261.151(f). If an paragraph (a) or (b) of this section are approved plan per § 261.143(h), the owner or operator is using the financial not consistent with the degree and Regional Administrator will notify the test to demonstrate both assurance as duration of risk associated with owner or operator in writing that he is specified by § 261.143(e), and liability treatment and/or storage at the facility no longer required under coverage, he must submit the letter or group of facilities, the owner or § 261.4(a)(24)(vi)(F) to maintain liability specified in § 261.151(f) to cover both operator may obtain a variance from the coverage for that facility or a unit at the forms of financial responsibility; a Regional Administrator. The request for facility, unless the Regional separate letter as specified in a variance must be submitted in writing Administrator has reason to believe that § 261.151(e) is not required. to the Regional Administrator. If that all hazardous secondary materials (ii) A copy of the independent granted, the variance will take the form have not been removed from the facility certified public accountant’s report on of an adjusted level of required liability or unit at a facility or that the facility examination of the owner’s or operator’s coverage, such level to be based on the or unit has not been decontaminated in financial statements for the latest Regional Administrator’s assessment of accordance with the approved plan. completed fiscal year. the degree and duration of risk (f) Financial test for liability coverage. (iii) If the chief financial officer’s associated with the ownership or (1) An owner or operator may satisfy the letter providing evidence of financial operation of the facility or group of requirements of this section by assurance includes financial data facilities. The Regional Administrator demonstrating that he passes a financial showing that the owner or operator may require an owner or operator who test as specified in this paragraph. To satisfies paragraph (f)(1)(i) of this

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section that are different from the data (5) After the initial submission of a ‘‘substantial business relationship’’ in the audited financial statements items specified in paragraph (f)(3) of with the owner or operator, this letter referred to in paragraph (f)(3)(ii) of this this section, the owner or operator must must describe this ‘‘substantial business section or any other audited financial send updated information to the relationship’’ and the value received in statement or data filed with the SEC, Regional Administrator within 90 days consideration of the guarantee. then a special report from the owner’s after the close of each succeeding fiscal (i) If the owner or operator fails to or operator’s independent certified year. This information must consist of satisfy a judgment based on a public accountant to the owner or all three items specified in paragraph determination of liability for bodily operator is required. The special report (f)(3) of this section. injury or property damage to third shall be based upon an agreed upon (6) If the owner or operator no longer parties caused by sudden or nonsudden procedures engagement in accordance meets the requirements of paragraph accidental occurrences (or both as the with professional auditing standards (f)(1) of this section, he must obtain case may be), arising from the operation and shall describe the procedures insurance, a letter of credit, a surety of facilities covered by this corporate performed in comparing the data in the bond, a trust fund, or a guarantee for the guarantee, or fails to pay an amount chief financial officer’s letter derived entire amount of required liability agreed to in settlement of claims arising from the independently audited, year- coverage as specified in this section. from or alleged to arise from such injury end financial statements for the latest Evidence of liability coverage must be or damage, the guarantor will do so up fiscal year with the amounts in such submitted to the Regional Administrator to the limits of coverage. financial statements, the findings of the within 90 days after the end of the fiscal (ii) [Reserved] comparison, and the reasons for any year for which the year-end financial (2)(i) In the case of corporations difference. data show that the owner or operator no incorporated in the United States, a (4) The owner or operator may obtain longer meets the test requirements. guarantee may be used to satisfy the a one-time extension of the time (7) The Regional Administrator may requirements of this section only if the allowed for submission of the disallow use of this test on the basis of Attorneys General or Insurance documents specified in paragraph (f)(3) qualifications in the opinion expressed Commissioners of: of this section if the fiscal year of the by the independent certified public (A) The State in which the guarantor owner or operator ends during the 90 accountant in his report on examination is incorporated; and days prior to the effective date of these of the owner’s or operator’s financial (B) Each State in which a facility statements (see paragraph (f)(3)(ii) of regulations and if the year-end financial covered by the guarantee is located have this section). An adverse opinion or a statements for that fiscal year will be submitted a written statement to EPA disclaimer of opinion will be cause for audited by an independent certified that a guarantee executed as described disallowance. The Regional public accountant. The extension will in this section and § 264.151(g)(2) is a Administrator will evaluate other end no later than 90 days after the end legally valid and enforceable obligation qualifications on an individual basis. of the owner’s or operator’s fiscal year. in that State. The owner or operator must provide (ii) In the case of corporations To obtain the extension, the owner’s or evidence of insurance for the entire incorporated outside the United States, operator’s chief financial officer must amount of required liability coverage as a guarantee may be used to satisfy the send, by the effective date of these specified in this section within 30 days requirements of this section only if: regulations, a letter to the Regional after notification of disallowance. (A) The non-U.S. corporation has Administrator of each Region in which (g) Guarantee for liability coverage. (1) identified a registered agent for service the owner’s or operator’s facilities to be Subject to paragraph (g)(2) of this of process in each State in which a covered by the financial test are located. section, an owner or operator may meet facility covered by the guarantee is This letter from the chief financial the requirements of this section by located and in the State in which it has officer must: obtaining a written guarantee, its principal place of business; and if (i) Request the extension; hereinafter referred to as ‘‘guarantee.’’ (B) The Attorney General or Insurance (ii) Certify that he has grounds to The guarantor must be the direct or Commissioner of each State in which a believe that the owner or operator meets higher-tier parent corporation of the facility covered by the guarantee is the criteria of the financial test; owner or operator, a firm whose parent located and the State in which the (iii) Specify for each facility to be corporation is also the parent guarantor corporation has its principal covered by the test the EPA corporation of the owner or operator, or place of business, has submitted a Identification Number, name, address, a firm with a ‘‘substantial business written statement to EPA that a the amount of liability coverage and, relationship’’ with the owner or guarantee executed as described in this when applicable, current closure and operator. The guarantor must meet the section and § 261.151(h)(2) is a legally post-closure cost estimates to be covered requirements for owners or operators in valid and enforceable obligation in that by the test; paragraphs (f)(1) through (f)(6) of this State. (iv) Specify the date ending the section. The wording of the guarantee (h) Letter of credit for liability owner’s or operator’s last complete must be identical to the wording coverage. (1) An owner or operator may fiscal year before the effective date of specified in § 261.151(g)(2). A certified satisfy the requirements of this section these regulations; copy of the guarantee must accompany by obtaining an irrevocable standby (v) Specify the date, no later than 90 the items sent to the Regional letter of credit that conforms to the days after the end of such fiscal year, Administrator as specified in paragraph requirements of this paragraph and when he will submit the documents (f)(3) of this section. One of these items submitting a copy of the letter of credit specified in paragraph (f)(3) of this must be the letter from the guarantor’s to the Regional Administrator. section; and chief financial officer. If the guarantor’s (2) The financial institution issuing (vi) Certify that the year-end financial parent corporation is also the parent the letter of credit must be an entity that statements of the owner or operator for corporation of the owner or operator, has the authority to issue letters of such fiscal year will be audited by an this letter must describe the value credit and whose letter of credit independent certified public received in consideration of the operations are regulated and examined accountant. guarantee. If the guarantor is a firm with by a Federal or State agency.

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(3) The wording of the letter of credit amount of funds in the trust fund is may use State-required financial must be identical to the wording reduced below the full amount of the mechanisms to meet the requirements of specified in § 261.151(j). liability coverage to be provided, the § 261.143 or § 261.147 if the Regional (4) An owner or operator who uses a owner or operator, by the anniversary Administrator determines that the State letter of credit to satisfy the date of the establishment of the Fund, mechanisms are at least equivalent to requirements of this section may also must either add sufficient funds to the the financial mechanisms specified in establish a standby trust fund. Under trust fund to cause its value to equal the this subpart. The Regional the terms of such a letter of credit, all full amount of liability coverage to be Administrator will evaluate the amounts paid pursuant to a draft by the provided, or obtain other financial equivalency of the mechanisms trustee of the standby trust will be assurance as specified in this section to principally in terms of certainty of the deposited by the issuing institution into cover the difference. For purposes of availability of: Funds for the required the standby trust in accordance with this paragraph, ‘‘the full amount of the closure activities or liability coverage; instructions from the trustee. The liability coverage to be provided’’ means and the amount of funds that will be trustee of the standby trust fund must be the amount of coverage for sudden and/ made available. The Regional an entity which has the authority to act or nonsudden occurrences required to Administrator may also consider other as a trustee and whose trust operations be provided by the owner or operator by factors as he deems appropriate. The are regulated and examined by a Federal this section, less the amount of financial owner or operator must submit to the or State agency. assurance for liability coverage that is Regional Administrator evidence of the (5) The wording of the standby trust being provided by other financial establishment of the mechanism fund must be identical to the wording assurance mechanisms being used to together with a letter requesting that the specified in § 261.151(m). demonstrate financial assurance by the State-required mechanism be (i) Surety bond for liability coverage. owner or operator. considered acceptable for meeting the (1) An owner or operator may satisfy the (4) The wording of the trust fund must requirements of this subpart. The requirements of this section by be identical to the wording specified in submission must include the following obtaining a surety bond that conforms to § 261.151(l). information: The facility’s EPA the requirements of this paragraph and Identification Number (if available), submitting a copy of the bond to the § 261.148 Incapacity of owners or name, and address, and the amount of Regional Administrator. operators, guarantors, or financial funds for closure or liability coverage (2) The surety company issuing the institutions. assured by the mechanism. The bond must be among those listed as (a) An owner or operator must notify Regional Administrator will notify the acceptable sureties on Federal bonds in the Regional Administrator by certified owner or operator of his determination the most recent Circular 570 of the U.S. mail of the commencement of a regarding the mechanism’s acceptability Department of the Treasury. voluntary or involuntary proceeding in lieu of financial mechanisms (3) The wording of the surety bond under Title 11 (Bankruptcy), U.S. Code, specified in this subpart. The Regional must be identical to the wording naming the owner or operator as debtor, Administrator may require the owner or specified in § 261.151(k) of this chapter. within 10 days after commencement of operator to submit additional (4) A surety bond may be used to the proceeding. A guarantor of a information as is deemed necessary to satisfy the requirements of this section corporate guarantee as specified in make this determination. Pending this only if the Attorneys General or § 261.143(e) must make such a determination, the owner or operator Insurance Commissioners of: notification if he is named as debtor, as will be deemed to be in compliance (i) The State in which the surety is required under the terms of the with the requirements of § 261.143 or incorporated; and corporate guarantee. § 261.147, as applicable. (ii) Each State in which a facility (b) An owner or operator who fulfills (b) If a State-required mechanism is covered by the surety bond is located the requirements of § 261.143 or found acceptable as specified in have submitted a written statement to § 261.147 by obtaining a trust fund, paragraph (a) of this section except for EPA that a surety bond executed as surety bond, letter of credit, or the amount of funds available, the described in this section and insurance policy will be deemed to be owner or operator may satisfy the § 261.151(k) is a legally valid and without the required financial assurance requirements of this subpart by enforceable obligation in that State. or liability coverage in the event of increasing the funds available through (j) Trust fund for liability coverage. (1) bankruptcy of the trustee or issuing the State-required mechanism or using An owner or operator may satisfy the institution, or a suspension or additional financial mechanisms as requirements of this section by revocation of the authority of the trustee specified in this subpart. The amount of establishing a trust fund that conforms institution to act as trustee or of the funds available through the State and to the requirements of this paragraph institution issuing the surety bond, Federal mechanisms must at least equal and submitting an originally signed letter of credit, or insurance policy to the amount required by this subpart. duplicate of the trust agreement to the issue such instruments. The owner or Regional Administrator. operator must establish other financial § 261.150 State assumption of responsibility. (2) The trustee must be an entity assurance or liability coverage within 60 which has the authority to act as a days after such an event. (a) If a State either assumes legal trustee and whose trust operations are responsibility for an owner’s or regulated and examined by a Federal or § 261.149 Use of State-required operator’s compliance with the closure State agency. mechanisms. or liability requirements of this part or (3) The trust fund for liability (a) For a reclamation or intermediate assures that funds will be available from coverage must be funded for the full facility located in a State where EPA is State sources to cover those amount of the liability coverage to be administering the requirements of this requirements, the owner or operator will provided by the trust fund before it may subpart but where the State has be in compliance with the requirements be relied upon to satisfy the regulations that include requirements of § 261.143 or § 261.147 if the Regional requirements of this section. If at any for financial assurance of closure or Administrator determines that the time after the trust fund is created the liability coverage, an owner or operator State’s assumption of responsibility is at

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least equivalent to the financial [insert ‘‘incorporated in the State of llll EPA Regional Administrator from the Fund mechanisms specified in this subpart. ----’’ or ‘‘a national bank’’], the ‘‘Trustee.’’ for expenditures for such activities in such The Regional Administrator will Whereas, the United States Environmental amounts as the beneficiary shall direct in evaluate the equivalency of State Protection Agency, ‘‘EPA,’’ an agency of the writing. In addition, the Trustee shall refund United States Government, has established to the Grantor such amounts as the EPA guarantees principally in terms of: certain regulations applicable to the Grantor, Regional Administrator specifies in writing. Certainty of the availability of funds for requiring that an owner or operator of a Upon refund, such funds shall no longer the required closure activities or facility regulated under parts 264, or 265, or constitute part of the Fund as defined herein. liability coverage; and the amount of satisfying the conditions of the exclusion Section 5. Payments Comprising the Fund. funds that will be made available. The under § 261.4(a)(24) shall provide assurance Payments made to the Trustee for the Fund Regional Administrator may also that funds will be available if needed for care shall consist of cash or securities acceptable consider other factors as he deems of the facility under 40 CFR parts 264 or 265, to the Trustee. appropriate. The owner or operator subparts G, as applicable , Section 6. Trustee Management. The Whereas, the Grantor has elected to Trustee shall invest and reinvest the must submit to the Regional establish a trust to provide all or part of such principal and income of the Fund and keep Administrator a letter from the State financial assurance for the facilities the Fund invested as a single fund, without describing the nature of the State’s identified herein, distinction between principal and income, in assumption of responsibility together Whereas, the Grantor, acting through its accordance with general investment policies with a letter from the owner or operator duly authorized officers, has selected the and guidelines which the Grantor may requesting that the State’s assumption of Trustee to be the trustee under this communicate in writing to the Trustee from responsibility be considered acceptable agreement, and the Trustee is willing to act time to time, subject, however, to the for meeting the requirements of this as trustee, provisions of this section. In investing, Now, Therefore, the Grantor and the reinvesting, exchanging, selling, and subpart. The letter from the State must Trustee agree as follows: managing the Fund, the Trustee shall include, or have attached to it, the Section 1. Definitions. As used in this discharge his duties with respect to the trust following information: The facility’s Agreement: fund solely in the interest of the beneficiary EPA Identification Number (if (a) The term ‘‘Grantor’’ means the owner or and with the care, skill, prudence, and available), name, and address, and the operator who enters into this Agreement and diligence under the circumstances then amount of funds for closure or liability any successors or assigns of the Grantor. prevailing which persons of prudence, acting coverage that are guaranteed by the (b) The term ‘‘Trustee’’ means the Trustee in a like capacity and familiar with such State. The Regional Administrator will who enters into this Agreement and any matters, would use in the conduct of an notify the owner or operator of his successor Trustee. enterprise of a like character and with like Section 2. Identification of Facilities and aims; except that: determination regarding the Cost Estimates. This Agreement pertains to (i) Securities or other obligations of the acceptability of the State’s guarantee in the facilities and cost estimates identified on Grantor, or any other owner or operator of the lieu of financial mechanisms specified attached Schedule A [on Schedule A, for facilities, or any of their affiliates as defined in this subpart. The Regional each facility list the EPA Identification in the Investment Company Act of 1940, as Administrator may require the owner or Number (if available), name, address, and the amended, 15 U.S.C. 80a–2.(a), shall not be operator to submit additional current cost estimates, or portions thereof, for acquired or held, unless they are securities or information as is deemed necessary to which financial assurance is demonstrated by other obligations of the Federal or a State make this determination. Pending this this Agreement]. government; determination, the owner or operator Section 3. Establishment of Fund. The (ii) The Trustee is authorized to invest the Grantor and the Trustee hereby establish a Fund in time or demand deposits of the will be deemed to be in compliance trust fund, the ‘‘Fund,’’ for the benefit of EPA Trustee, to the extent insured by an agency with the requirements of § 265.143 or in the event that the hazardous secondary of the Federal or State government; and § 265.147, as applicable. materials of the grantor no longer meet the (iii) The Trustee is authorized to hold cash (b) If a State’s assumption of conditions of the exclusion under awaiting investment or distribution responsibility is found acceptable as § 261.4(a)(24). The Grantor and the Trustee uninvested for a reasonable time and without specified in paragraph (a) of this section intend that no third party have access to the liability for the payment of interest thereon. except for the amount of funds Fund except as herein provided. The Fund is Section 7. Commingling and Investment. available, the owner or operator may established initially as consisting of the The Trustee is expressly authorized in its property, which is acceptable to the Trustee, discretion: satisfy the requirements of this subpart described in Schedule B attached hereto. (a) To transfer from time to time any or all by use of both the State’s assurance and Such property and any other property of the assets of the Fund to any common, additional financial mechanisms as subsequently transferred to the Trustee is commingled, or collective trust fund created specified in this subpart. The amount of referred to as the Fund, together with all by the Trustee in which the Fund is eligible funds available through the State and earnings and profits thereon, less any to participate, subject to all of the provisions Federal mechanisms must at least equal payments or distributions made by the thereof, to be commingled with the assets of the amount required by this subpart. Trustee pursuant to this Agreement. The other trusts participating therein; and Fund shall be held by the Trustee, IN (b) To purchase shares in any investment § 261.151 Wording of the instruments. TRUST, as hereinafter provided. The Trustee company registered under the Investment shall not be responsible nor shall it Company Act of 1940, 15 U.S.C. 80a–1 et (a)(1) A trust agreement for a trust undertake any responsibility for the amount seq., including one which may be created, fund, as specified in § 261.143(a) must or adequacy of, nor any duty to collect from managed, underwritten, or to which be worded as follows, except that the Grantor, any payments necessary to investment advice is rendered or the shares instructions in brackets are to be discharge any liabilities of the Grantor of which are sold by the Trustee. The Trustee replaced with the relevant information established by EPA. may vote such shares in its discretion. and the brackets deleted: Section 4. Payments from the Fund. The Section 8. Express Powers of Trustee. Trustee shall make payments from the Fund Without in any way limiting the powers and Trust Agreement as the EPA Regional Administrator shall discretions conferred upon the Trustee by the Trust Agreement, the ‘‘Agreement,’’ direct, in writing, to provide for the payment other provisions of this Agreement or by law, entered into as of [date] by and between of the costs of the performance of activities the Trustee is expressly authorized and [name of the owner or operator], a [name of required under subpart G of 40 CFR parts 264 empowered: State] [insert ‘‘corporation,’’ ‘‘partnership,’’ or 265 for the facilities covered by this (a) To sell, exchange, convey, transfer, or ‘‘association,’’ or ‘‘proprietorship’’], the Agreement. The Trustee shall reimburse the otherwise dispose of any property held by it, ‘‘Grantor,’’ and [name of corporate trustee], Grantor or other persons as specified by the by public or private sale. No person dealing

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with the Trustee shall be bound to see to the fully protected, to the extent permitted by if the Grantor ceases to exist. Upon application of the purchase money or to law, in acting upon the advice of counsel. termination of the Trust, all remaining trust inquire into the validity or expediency of any Section 12. Trustee Compensation. The property, less final trust administration such sale or other disposition; Trustee shall be entitled to reasonable expenses, shall be delivered to the Grantor. (b) To make, execute, acknowledge, and compensation for its services as agreed upon Section 17. Immunity and Indemnification. deliver any and all documents of transfer and in writing from time to time with the Grantor. The Trustee shall not incur personal liability conveyance and any and all other Section 13. Successor Trustee. The Trustee of any nature in connection with any act or instruments that may be necessary or may resign or the Grantor may replace the omission, made in good faith, in the appropriate to carry out the powers herein Trustee, but such resignation or replacement administration of this Trust, or in carrying granted; shall not be effective until the Grantor has out any directions by the Grantor or the EPA (c) To register any securities held in the appointed a successor trustee and this Regional Administrator issued in accordance Fund in its own name or in the name of a successor accepts the appointment. The with this Agreement. The Trustee shall be nominee and to hold any security in bearer successor trustee shall have the same powers indemnified and saved harmless by the form or in book entry, or to combine and duties as those conferred upon the Grantor or from the Trust Fund, or both, from certificates representing such securities with Trustee hereunder. Upon the successor and against any personal liability to which certificates of the same issue held by the trustee’s acceptance of the appointment, the the Trustee may be subjected by reason of Trustee in other fiduciary capacities, or to Trustee shall assign, transfer, and pay over to any act or conduct in its official capacity, deposit or arrange for the deposit of such the successor trustee the funds and including all expenses reasonably incurred in securities in a qualified central depositary properties then constituting the Fund. If for its defense in the event the Grantor fails to even though, when so deposited, such any reason the Grantor cannot or does not act provide such defense. securities may be merged and held in bulk in the event of the resignation of the Trustee, Section 18. Choice of Law. This Agreement in the name of the nominee of such the Trustee may apply to a court of shall be administered, construed, and depositary with other securities deposited competent jurisdiction for the appointment enforced according to the laws of the State therein by another person, or to deposit or of a successor trustee or for instructions. The of [insert name of State]. arrange for the deposit of any securities successor trustee shall specify the date on Section 19. Interpretation. As used in this issued by the United States Government, or which it assumes administration of the trust Agreement, words in the singular include the any agency or instrumentality thereof, with a in a writing sent to the Grantor, the EPA plural and words in the plural include the Federal Reserve bank, but the books and Regional Administrator, and the present singular. The descriptive headings for each records of the Trustee shall at all times show Trustee by certified mail 10 days before such Section of this Agreement shall not affect the that all such securities are part of the Fund; change becomes effective. Any expenses interpretation or the legal efficacy of this Agreement. (d) To deposit any cash in the Fund in incurred by the Trustee as a result of any of In Witness Whereof the parties have interest-bearing accounts maintained or the acts contemplated by this Section shall be caused this Agreement to be executed by savings certificates issued by the Trustee, in paid as provided in Section 9. their respective officers duly authorized and its separate corporate capacity, or in any Section 14. Instructions to the Trustee. All their corporate seals to be hereunto affixed orders, requests, and instructions by the other banking institution affiliated with the and attested as of the date first above written: Trustee, to the extent insured by an agency Grantor to the Trustee shall be in writing, The parties below certify that the wording of of the Federal or State government; and signed by such persons as are designated in this Agreement is identical to the wording (e) To compromise or otherwise adjust all the attached Exhibit A or such other specified in 40 CFR 261.151(a)(1) as such claims in favor of or against the Fund. designees as the Grantor may designate by regulations were constituted on the date first Section 9. Taxes and Expenses. All taxes of amendment to Exhibit A. The Trustee shall above written. any kind that may be assessed or levied be fully protected in acting without inquiry [Signature of Grantor] against or in respect of the Fund and all in accordance with the Grantor’s orders, [Title] brokerage commissions incurred by the Fund requests, and instructions. All orders, Attest: shall be paid from the Fund. All other requests, and instructions by the EPA [Title] expenses incurred by the Trustee in Regional Administrator to the Trustee shall [Seal] connection with the administration of this be in writing, signed by the EPA Regional [Signature of Trustee] Trust, including fees for legal services Administrators of the Regions in which the rendered to the Trustee, the compensation of facilities are located, or their designees, and Attest: the Trustee to the extent not paid directly by the Trustee shall act and shall be fully [Title] the Grantor, and all other proper charges and protected in acting in accordance with such [Seal] disbursements of the Trustee shall be paid orders, requests, and instructions. The (2) The following is an example of the certification of acknowledgment which must from the Fund. Trustee shall have the right to assume, in the accompany the trust agreement for a trust Section 10. Annual Valuation. The Trustee absence of written notice to the contrary, that fund as specified in § 261.143(a) of this shall annually, at least 30 days prior to the no event constituting a change or a chapter. State requirements may differ on the anniversary date of establishment of the termination of the authority of any person to proper content of this acknowledgment. Fund, furnish to the Grantor and to the act on behalf of the Grantor or EPA State of lllllllllllllllll appropriate EPA Regional Administrator a hereunder has occurred. The Trustee shall County of llllllllllllllll statement confirming the value of the Trust. have no duty to act in the absence of such On this [date], before me personally came Any securities in the Fund shall be valued orders, requests, and instructions from the [owner or operator] to me known, who, being at market value as of no more than 60 days Grantor and/or EPA, except as provided for by me duly sworn, did depose and say that prior to the anniversary date of establishment herein. she/he resides at [address], that she/he is of the Fund. The failure of the Grantor to Section 15. Amendment of Agreement. [title] of [corporation], the corporation object in writing to the Trustee within 90 This Agreement may be amended by an described in and which executed the above days after the statement has been furnished instrument in writing executed by the instrument; that she/he knows the seal of to the Grantor and the EPA Regional Grantor, the Trustee, and the appropriate said corporation; that the seal affixed to such Administrator shall constitute a conclusively EPA Regional Administrator, or by the instrument is such corporate seal; that it was binding assent by the Grantor, barring the Trustee and the appropriate EPA Regional so affixed by order of the Board of Directors Grantor from asserting any claim or liability Administrator if the Grantor ceases to exist. of said corporation, and that she/he signed against the Trustee with respect to matters Section 16. Irrevocability and Termination. her/his name thereto by like order. disclosed in the statement. Subject to the right of the parties to amend [Signature of Notary Public] Section 11. Advice of Counsel. The Trustee this Agreement as provided in Section 16, (b) A surety bond guaranteeing payment may from time to time consult with counsel, this Trust shall be irrevocable and shall into a trust fund, as specified in § 261.143(b) who may be counsel to the Grantor, with continue until terminated at the written of this chapter, must be worded as follows, respect to any question arising as to the agreement of the Grantor, the Trustee, and except that instructions in brackets are to be construction of this Agreement or any action the EPA Regional Administrator, or by the replaced with the relevant information and to be taken hereunder. The Trustee shall be Trustee and the EPA Regional Administrator, the brackets deleted:

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Financial Guarantee Bond after the date notice of cancellation is Corporate Surety(ies) Date bond executed: received by both the Principal and the EPA [Name and address] Effective date: Regional Administrator(s) from the State of incorporation: llllllllll Principal: [legal name and business address Surety(ies), then this obligation shall be null Liability limit: of owner or operator] and void; otherwise it is to remain in full $ llllllllllllllllllll Type of Organization: [insert ‘‘individual,’’ force and effect. [Signature(s)] ‘‘joint venture,’’ ‘‘partnership,’’ or The Surety(ies) shall become liable on this [Name(s) and title(s)] ‘‘corporation’’] bond obligation only when the Principal has [Corporate seal] State of incorporation: llllllllll failed to fulfill the conditions described [For every co-surety, provide signature(s), Surety(ies): [name(s) and business above. Upon notification by an EPA Regional corporate seal, and other information in the address(es)] Administrator that the Principal has failed to same manner as for Surety above.] EPA Identification Number, name, address perform as guaranteed by this bond, the Bond premium: $ llllllllllll and amount(s) for each facility guaranteed by Surety(ies) shall place funds in the amount (c) A letter of credit, as specified in this bond: llllllllllllllll guaranteed for the facility(ies) into the § 261.143(c) of this chapter, must be worded Total penal sum of bond: $ llllllll standby trust fund as directed by the EPA as follows, except that instructions in Surety’s bond number: llllllllll Regional Administrator. brackets are to be replaced with the relevant Know All Persons By These Presents, That The liability of the Surety(ies) shall not be information and the brackets deleted: discharged by any payment or succession of we, the Principal and Surety(ies) are firmly Irrevocable Standby Letter of Credit bound to the U.S. EPA in the event that the payments hereunder, unless and until such hazardous secondary materials at the payment or payments shall amount in the Regional Administrator(s) aggregate to the penal sum of the bond, but reclamation or intermediate facility listed Region(s) llllllllllllllll below no longer meet the conditions of the in no event shall the obligation of the exclusion under 40 CFR 261.4(a)(24), in the Surety(ies) hereunder exceed the amount of U.S. Environmental Protection Agency above penal sum for the payment of which said penal sum. Dear Sir or Madam: We hereby establish we bind ourselves, our heirs, executors, The Surety(ies) may cancel the bond by our Irrevocable Standby Letter of Credit administrators, successors, and assigns sending notice of cancellation by certified No.llll in your favor, in the event that jointly and severally; provided that, where mail to the Principal and to the EPA Regional the hazardous secondary materials at the the Surety(ies) are corporations acting as co- Administrator(s) for the Region(s) in which covered reclamation or intermediary sureties, we, the Sureties, bind ourselves in the facility(ies) is (are) located, provided, facility(ies) no longer meet the conditions of such sum ‘‘jointly and severally’’ only for the however, that cancellation shall not occur the exclusion under 40 CFR 261.4(a)(24), at during the 120 days beginning on the date of purpose of allowing a joint action or actions the request and for the account of [owner’s receipt of the notice of cancellation by both against any or all of us, and for all other or operator’s name and address] up to the the Principal and the EPA Regional purposes each Surety binds itself, jointly and aggregate amount of [in words] U.S. dollars Administrator(s), as evidenced by the return severally with the Principal, for the payment $llll, available upon presentation of receipts. of such sum only as is set forth opposite the (1) your sight draft, bearing reference to The Principal may terminate this bond by name of such Surety, but if no limit of this letter of credit No.ll, and sending written notice to the Surety(ies), liability is indicated, the limit of liability (2) your signed statement reading as provided, however, that no such notice shall shall be the full amount of the penal sum. follows: ‘‘I certify that the amount of the draft become effective until the Surety(ies) Whereas said Principal is required, under is payable pursuant to regulations issued receive(s) written authorization for the Resource Conservation and Recovery Act under authority of the Resource Conservation as amended (RCRA), to have a permit or termination of the bond by the EPA Regional Administrator(s) of the EPA Region(s) in and Recovery Act of 1976 as amended.’’ interim status in order to own or operate each This letter of credit is effective as of [date] facility identified above, or to meet which the bonded facility(ies) is (are) located. and shall expire on [date at least 1 year later], conditions under 40 CFR sections but such expiration date shall be 261.4(a)(24), and [The following paragraph is an optional rider that may be included but is not automatically extended for a period of [at Whereas said Principal is required to least 1 year] on [date] and on each successive provide financial assurance as a condition of required.] Principal and Surety(ies) hereby agree to expiration date, unless, at least 120 days permit or interim status or as a condition of before the current expiration date, we notify an exclusion under 40 CFR sections adjust the penal sum of the bond yearly so that it guarantees a new amount, provided both you and [owner’s or operator’s name] by 261.4(a)(24) and certified mail that we have decided not to Whereas said Principal shall establish a that the penal sum does not increase by more than 20 percent in any one year, and no extend this letter of credit beyond the current standby trust fund as is required when a expiration date. In the event you are so surety bond is used to provide such financial decrease in the penal sum takes place without the written permission of the EPA notified, any unused portion of the credit assurance; shall be available upon presentation of your Now, Therefore, the conditions of the Regional Administrator(s). In Witness Whereof, the Principal and sight draft for 120 days after the date of obligation are such that if the Principal shall receipt by both you and [owner’s or faithfully, before the beginning of final Surety(ies) have executed this Financial Guarantee Bond and have affixed their seals operator’s name], as shown on the signed closure of each facility identified above, fund return receipts. the standby trust fund in the amount(s) on the date set forth above. The persons whose signatures appear Whenever this letter of credit is drawn on identified above for the facility, under and in compliance with the terms of Or, if the Principal shall satisfy all the below hereby certify that they are authorized to execute this surety bond on behalf of the this credit, we shall duly honor such draft conditions established for exclusion of Principal and Surety(ies) and that the upon presentation to us, and we shall deposit hazardous secondary materials from coverage wording of this surety bond is identical to the the amount of the draft directly into the as solid waste under 40 CFR sections wording specified in 40 CFR 261.151(b) as standby trust fund of [owner’s or operator’s 261.4(a)(24), such regulations were constituted on the date name] in accordance with your instructions. Or, if the Principal shall fund the standby this bond was executed. We certify that the wording of this letter of trust fund in such amount(s) within 15 days credit is identical to the wording specified in after a final order to begin closure is issued Principal 40 CFR 261.151(c) as such regulations were by an EPA Regional Administrator or a U.S. [Signature(s)] constituted on the date shown immediately district court or other court of competent lllllllllllllllllllll below. jurisdiction, Or, if the Principal shall provide alternate [Name(s)] [Signature(s) and title(s) of official(s) of financial assurance, as specified in subpart H lllllllllllllllllllll issuing institution] [Date] of 40 CFR part 261, as applicable, and obtain [Title(s)] This credit is subject to [insert ‘‘the most the EPA Regional Administrator’s written lllllllllllllllllllll recent edition of the Uniform Customs and approval of such assurance, within 90 days [Corporate seal] lllllllllllll Practice for Documentary Credits, published

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and copyrighted by the International I am the chief financial officer of [name 7. This firm guarantees, through the Chamber of Commerce,’’ or ‘‘the Uniform and address of firm]. This letter is in support guarantee specified in subpart H of 40 CFR Commercial Code’’]. of this firm’s use of the financial test to parts 264 and 265, the closure or post-closure (d) A certificate of insurance, as specified demonstrate financial assurance, as specified care of the following facilities owned or in § 261.143(e) of this chapter, must be in subpart H of 40 CFR part 261. operated by the guaranteed party. The worded as follows, except that instructions in [Fill out the following nine paragraphs current cost estimates for the closure or post- brackets are to be replaced with the relevant regarding facilities and associated cost closure care so guaranteed are shown for information and the brackets deleted: estimates. If your firm has no facilities that each facility: llll. The firm identified Certificate of Insurance belong in a particular paragraph, write above is [insert one or more: (1) The direct ‘‘None’’ in the space indicated. For each or higher-tier parent corporation of the owner Name and Address of Insurer (herein called facility, include its EPA Identification or operator; (2) owned by the same parent the ‘‘Insurer’’): Number (if any issued), name, address, and corporation as the parent corporation of the lllllllllllllllllllll current cost estimates.] owner or operator, and receiving the 1. This firm is the owner or operator of the Name and Address of Insured (herein called following value in consideration of this following facilities for which financial the ‘‘Insured’’): guarantee lll; or (3) engaged in the assurance is demonstrated through the following substantial business relationship lllllllllllllllllllll financial test specified in subpart H of 40 with the owner or operator ll, and Facilities Covered: [List for each facility: CFR 261. The current cost estimates covered receiving the following value in The EPA Identification Number (if any by the test are shown for each facility: consideration of this guarantee ll]. [Attach issued), name, address, and the amount of llll . a written description of the business insurance for all facilities covered, which 2. This firm guarantees, through the relationship or a copy of the contract must total the face amount shown below. guarantee specified in subpart H of 40 CFR establishing such relationship to this letter]. Face Amount: part 261, the following facilities owned or 8. In States where EPA is not administering operated by the guaranteed party. The lllllllllllllllllllll the financial requirements of subpart H of 40 current cost estimates so guaranteed are CFR part 264 or 265, this firm, as owner or Policy Number: lllllllllllll shown for each facility: llll . The firm operator or guarantor, is demonstrating Effective Date: identified above is [insert one or more: (1) financial assurance for the closure or post- lllllllllllllllllllll The direct or higher-tier parent corporation closure care of the following facilities of the owner or operator; (2) owned by the through the use of a test equivalent or The Insurer hereby certifies that it has same parent corporation as the parent issued to the Insured the policy of insurance substantially equivalent to the financial test corporation of the owner or operator, and specified in subpart H of 40 CFR parts 264 identified above to provide financial receiving the following value in assurance so that in accordance with and 265. The current closure and/or post- consideration of this guaranteellll, or applicable regulations all hazardous closure cost estimates covered by such a test (3) engaged in the following substantial secondary materials can be removed from the are shown for each facility: ll. business relationship with the owner or facility or any unit at the facility and the 9. This firm is the owner or operator of the operator llll, and receiving the facility or any unit at the facility can be following hazardous waste management decontaminated at the facilities identified following value in consideration of this facilities for which financial assurance for llll above. The Insurer further warrants that such guarantee ]. [Attach a written closure or, if a disposal facility, post-closure policy conforms in all respects with the description of the business relationship or a care, is not demonstrated either to EPA or a requirements of 40 CFR 261.143(d) as copy of the contract establishing such State through the financial test or any other applicable and as such regulations were relationship to this letter]. financial assurance mechanism specified in constituted on the date shown immediately 3. In States where EPA is not administering subpart H of 40 CFR parts 264 and 265 or below. It is agreed that any provision of the the financial requirements of subpart H of 40 equivalent or substantially equivalent State policy inconsistent with such regulations is CFR part 261, this firm, as owner or operator mechanisms. The current closure and/or hereby amended to eliminate such or guarantor, is demonstrating financial post-closure cost estimates not covered by inconsistency. assurance for the following facilities through such financial assurance are shown for each Whenever requested by the EPA Regional the use of a test equivalent or substantially facility: ll. Administrator(s) of the U.S. Environmental equivalent to the financial test specified in This firm [insert ‘‘is required’’ or ‘‘is not Protection Agency, the Insurer agrees to subpart H of 40 CFR part 261. The current required’’] to file a Form 10K with the furnish to the EPA Regional Administrator(s) cost estimates covered by such a test are Securities and Exchange Commission (SEC) a duplicate original of the policy listed shown for each facility:llll. for the latest fiscal year. above, including all endorsements thereon. 4. This firm is the owner or operator of the The fiscal year of this firm ends on [month, I hereby certify that the wording of this following hazardous secondary materials day]. The figures for the following items certificate is identical to the wording management facilities for which financial marked with an asterisk are derived from this specified in 40 CFR 261.151(d) such assurance is not demonstrated either to EPA firm’s independently audited, year-end regulations were constituted on the date or a State through the financial test or any financial statements for the latest completed shown immediately below. other financial assurance mechanism fiscal year, ended [date]. [Authorized signature for Insurer] specified in subpart H of 40 CFR part 261 or [Fill in Alternative I if the criteria of equivalent or substantially equivalent State paragraph (e)(1)(i) of § 261.143 of this chapter [Name of person signing] mechanisms. The current cost estimates not are used. Fill in Alternative II if the criteria covered by such financial assurance are [Title of person signing] of paragraph (e)(1)(ii) of § 261.143(e) of this shown for each facility:llll. chapter are used.] Signature of witness or notary: llllll 5. This firm is the owner or operator of the Alternative I [Date] following UIC facilities for which financial assurance for plugging and abandonment is 1. Sum of current cost estimates [total of (e) A letter from the chief financial officer, as specified in § 261.143(e) of this chapter, required under part 144. The current closure all cost estimates shown in the nine ll must be worded as follows, except that cost estimates as required by 40 CFR 144.62 paragraphs above] $ llll instructions in brackets are to be replaced are shown for each facility: . *2. Total liabilities [if any portion of the with the relevant information and the 6. This firm is the owner or operator of the cost estimates is included in total liabilities, brackets deleted: following facilities for which financial you may deduct the amount of that portion assurance for closure or post-closure care is from this line and add that amount to lines Letter From Chief Financial Officer demonstrated through the financial test 3 and 4] $ll [Address to Regional Administrator of specified in subpart H of 40 CFR parts 264 *3. Tangible net worth $llll every Region in which facilities for which and 265. The current closure and/or post- *4. Net worth $llll- financial responsibility is to be demonstrated closure cost estimates covered by the test are *5. Current assets $llll through the financial test are located]. shown for each facility: llll . *6. Current liabilities $llll

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7. Net working capital [line 5 minus line of the use of the financial test to demonstrate 264.143, 264.145, 265.143 or 265.145, fill in 6] $llll financial responsibility for liability coverage the following nine paragraphs regarding *8. The sum of net income plus under § 261.147[insert ‘‘and costs assured facilities and associated cost estimates. If depreciation, depletion, and amortization § 261.143(e)’’ if applicable] as specified in there are no facilities that belong in a $llll- subpart H of 40 CFR part 261. particular paragraph, write ‘‘None’’ in the *9. Total assets in U.S. (required only if [Fill out the following paragraphs space indicated. For each facility, include its less than 90% of firm’s assets are located in regarding facilities and liability coverage. If EPA identification number (if any issued), the U.S.) $llll- there are no facilities that belong in a name, address, and current cost estimates.] 10. Is line 3 at least $10 million? (Yes/No) particular paragraph, write ‘‘None’’ in the 1. This firm is the owner or operator of the llll space indicated. For each facility, include its following facilities for which financial 11. Is line 3 at least 6 times line 1? (Yes/ EPA Identification Number (if any issued), assurance is demonstrated through the No) llll- name, and address]. financial test specified in subpart H of 40 12. Is line 7 at least 6 times line 1? (Yes/ The firm identified above is the owner or CFR 261. The current cost estimates covered No) llll- operator of the following facilities for which by the test are shown for each *13. Are at least 90% of firm’s assets liability coverage for [insert ‘‘sudden’’ or facility:llll. located in the U.S.? If not, complete line 14 ‘‘nonsudden’’ or ‘‘both sudden and 2. This firm guarantees, through the (Yes/No) llll nonsudden’’] accidental occurrences is being guarantee specified in subpart H of 40 CFR 14. Is line 9 at least 6 times line 1? (Yes/ demonstrated through the financial test part 261, the following facilities owned or No) llll- specified in subpart H of 40 CFR part operated by the guaranteed party. The 15. Is line 2 divided by line 4 less than 2.0? 261:llll current cost estimates so guaranteed are (Yes/No) llll- The firm identified above guarantees, shown for each facility:llll. The firm 16. Is line 8 divided by line 2 greater than through the guarantee specified in subpart H identified above is [insert one or more: (1) 0.1? (Yes/No) llll- of 40 CFR part 261, liability coverage for The direct or higher-tier parent corporation 17. Is line 5 divided by line 6 greater than [insert ‘‘sudden’’ or ‘‘nonsudden’’ or ‘‘both of the owner or operator; (2) owned by the 1.5? (Yes/No) llll- sudden and nonsudden’’] accidental same parent corporation as the parent Alternative II occurrences at the following facilities owned corporation of the owner or operator, and or operated by the following: llll-. The receiving the following value in 1. Sum of current cost estimates [total of firm identified above is [insert one or more: consideration of this guaranteellll, or all cost estimates shown in the eight (1) The direct or higher-tier parent (3) engaged in the following substantial llll paragraphs above] $ - corporation of the owner or operator; (2) business relationship with the owner or 2. Current bond rating of most recent owned by the same parent corporation as the operator llll, and receiving the issuance of this firm and name of rating parent corporation of the owner or operator, following value in consideration of this service llll- and receiving the following value in guaranteellll]. [Attach a written 3. Date of issuance of bond llll- consideration of this guarantee -llll; or description of the business relationship or a 4. Date of maturity of bond llll- (3) engaged in the following substantial copy of the contract establishing such *5. Tangible net worth [if any portion of business relationship with the owner or relationship to this letter]. the cost estimates is included in ‘‘total operator llll-, and receiving the 3. In States where EPA is not administering liabilities’’ on your firm’s financial following value in consideration of this the financial requirements of subpart H of 40 statements, you may add the amount of that guarantee llll-]. [Attach a written CFR part 261, this firm, as owner or operator portion to this line] $llll- description of the business relationship or a or guarantor, is demonstrating financial *6. Total assets in U.S. (required only if copy of the contract establishing such assurance for the following facilities through less than 90% of firm’s assets are located in relationship to this letter.] the use of a test equivalent or substantially the U.S.) $llll- The firm identified above is the owner or equivalent to the financial test specified in 7. Is line 5 at least $10 million? (Yes/No) llll operator of the following facilities for which subpart H of 40 CFR part 261. The current liability coverage for [insert ‘‘sudden’’ or cost estimates covered by such a test are 8. Is line 5 at least 6 times line 1? (Yes/ ‘‘nonsudden’’ or ‘‘both sudden and shown for each facility:llll. No) llll nonsudden’’] accidental occurrences is being 4. This firm is the owner or operator of the *9. Are at least 90% of firm’s assets located demonstrated through the financial test following hazardous secondary materials in the U.S.? If not, complete line 10 (Yes/No) ____ specified in subpart H of 40 CFR parts 264 management facilities for which financial and 265:llll assurance is not demonstrated either to EPA 10. Is line 6 at least 6 times line 1? (Yes/ The firm identified above guarantees, or a State through the financial test or any No) llll- through the guarantee specified in subpart H other financial assurance mechanism I hereby certify that the wording of this of 40 CFR parts 264 and 265, liability specified in subpart H of 40 CFR part 261 or letter is identical to the wording specified in coverage for [insert ‘‘sudden’’ or equivalent or substantially equivalent State 40 CFR 261.151(e) as such regulations were ‘‘nonsudden’’ or ‘‘both sudden and mechanisms. The current cost estimates not constituted on the date shown immediately nonsudden’’] accidental occurrences at the covered by such financial assurance are below. following facilities owned or operated by the shown for each facility:llll. [Signature] lllllllllllllll following: ll. The firm identified above is 5. This firm is the owner or operator of the [Name] lllllllllllllllll [insert one or more: (1) The direct or higher- following UIC facilities for which financial [Title] lllllllllllllllll tier parent corporation of the owner or assurance for plugging and abandonment is [Date] operator; (2) owned by the same parent required under part 144. The current closure lllllllllllllllllllll corporation as the parent corporation of the cost estimates as required by 40 CFR 144.62 (f) A letter from the chief financial officer, owner or operator, and receiving the are shown for each facility:llll. as specified in Sec. 261.147(f) of this chapter, following value in consideration of this 6. This firm is the owner or operator of the must be worded as follows, except that guarantee ll; or (3) engaged in the following facilities for which financial instructions in brackets are to be replaced following substantial business relationship assurance for closure or post-closure care is with the relevant information and the with the owner or operator ll, and demonstrated through the financial test brackets deleted. receiving the following value in specified in subpart H of 40 CFR parts 264 consideration of this guarantee ll]. [Attach and 265. The current closure and/or post- Letter From Chief Financial Officer a written description of the business closure cost estimates covered by the test are [Address to Regional Administrator of relationship or a copy of the contract shown for each facility: llll. every Region in which facilities for which establishing such relationship to this letter.] 7. This firm guarantees, through the financial responsibility is to be demonstrated [If you are using the financial test to guarantee specified in subpart H of 40 CFR through the financial test are located]. demonstrate coverage of both liability and parts 264 and 265, the closure or post-closure I am the chief financial officer of [firm’s costs assured under § 261.143(e) or closure or care of the following facilities owned or name and address]. This letter is in support post-closure care costs under 40 CFR operated by the guaranteed party. The

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current cost estimates for the closure or post- 9. Is line 5 at least 6 times line 1? (Yes/ 17. Is line 4 divided by line 6 less than 2.0? closure care so guaranteed are shown for No) llll-. (Yes/No) each facility: llll. The firm identified *10. Are at least 90% of assets located in 18. Is line 10 divided by line 4 greater than above is [insert one or more: (1) The direct the U.S.? (Yes/No) llll. If not, complete 0.1? (Yes/No) or higher-tier parent corporation of the owner line 11. 19. Is line 7 divided by line 8 greater than or operator; (2) owned by the same parent 11. Is line 6 at least 6 times line 1? (Yes/ 1.5? (Yes/No) No) llll. corporation as the parent corporation of the Alternative II owner or operator, and receiving the Alternative II following value in consideration of this 1. Sum of current cost estimates (total of ____ guarantee llll; or (3) engaged in the 1. Amount of annual aggregate liability all cost estimates listed above) $ - following substantial business relationship coverage to be demonstrated $llll-. 2. Amount of annual aggregate liability ____ with the owner or operator llll, and 2. Current bond rating of most recent coverage to be demonstrated $ - ____ receiving the following value in issuance and name of rating service lllll 3. Sum of lines 1 and 2 $ llll llll-. 4. Current bond rating of most recent consideration of this guarantee ]. ______[Attach a written description of the 3. Date of issuance of bond issuance and name of rating service - llllllll—. 5. Date of issuance of bond ______— business relationship or a copy of the ______contract establishing such relationship to this 4. Date of maturity of bond 6. Date of maturity of bond — letter]. llllllll—. *7. Tangible net worth (if any portion of 8. In States where EPA is not administering *5. Tangible net worth $llll-. the cost estimates is included in ‘‘total *6. Total assets in U.S. (required only if liabilities’’ on your financial statements you the financial requirements of subpart H of 40 ____ CFR part 264 or 265, this firm, as owner or less than 90% of assets are located in the may add that portion to this line) $ - llll operator or guarantor, is demonstrating U.S.) $ -. *8. Total assets in the U.S. (required only financial assurance for the closure or post- 7. Is line 5 at least $10 million? (Yes/No) if less than 90% of assets are located in the llll ____ closure care of the following facilities -. U.S.) $ - 8. Is line 5 at least 6 times line 1? lllll through the use of a test equivalent or 9. Is line 7 at least $10 million? (Yes/No) . 10. Is line 7 at least 6 times line 3? (Yes/ substantially equivalent to the financial test 9. Are at least 90% of assets located in the No) specified in subpart H of 40 CFR parts 264 U.S.? If not, complete line 10. (Yes/No) ——. *11. Are at least 90% of assets located in and 265. The current closure and/or post- 10. Is line 6 at least 6 times line 1? the U.S.? (Yes/No) If not complete line 12. closure cost estimates covered by such a test llll-. 12. Is line 8 at least 6 times line 3? (Yes/ are shown for each facility: llll. [Fill in part B if you are using the financial No) 9. This firm is the owner or operator of the test to demonstrate assurance of both liability I hereby certify that the wording of this following hazardous waste management coverage and costs assured under letter is identical to the wording specified in facilities for which financial assurance for § 261.143(e) or closure or post-closure care 40 CFR 261.151(f) as such regulations were closure or, if a disposal facility, post-closure costs under 40 CFR 264.143, 264.145, constituted on the date shown immediately care, is not demonstrated either to EPA or a 265.143 or 265.145.] below. State through the financial test or any other [Signature] lllllllllllllll financial assurance mechanism specified in Part B. Facility Care and Liability Coverage [Name] lllllllllllllllll subpart H of 40 CFR parts 264 and 265 or [Fill in Alternative I if the criteria of [Title] lllllllllllllllll equivalent or substantially equivalent State paragraphs (e)(1)(i) of Sec. 261.143 and [Date] llllllllllllllllll mechanisms. The current closure and/or (f)(1)(i) of Sec. 261.147 are used. Fill in (g)(1) A corporate guarantee, as specified in post-closure cost estimates not covered by Alternative II if the criteria of paragraphs § 261.143(e) of this chapter, must be worded such financial assurance are shown for each (e)(1)(ii) of Sec. 261.143 and (f)(1)(ii) of Sec. as follows, except that instructions in facility: llll. 261.147 are used.] brackets are to be replaced with the relevant This firm [insert ‘‘is required’’ or ‘‘is not information and the brackets deleted: required’’] to file a Form 10K with the Alternative I Securities and Exchange Commission (SEC) 1. Sum of current cost estimates (total of Corporate Guarantee for Facility Care for the latest fiscal year. all cost estimates listed above) $llll- Guarantee made this [date] by [name of The fiscal year of this firm ends on [month, 2. Amount of annual aggregate liability guaranteeing entity], a business corporation day]. The figures for the following items coverage to be demonstrated $llll- organized under the laws of the State of marked with an asterisk are derived from this 3. Sum of lines 1 and 2 $llll [insert name of State], herein referred to as firm’s independently audited, year-end *4. Total liabilities (if any portion of your guarantor. This guarantee is made on behalf financial statements for the latest completed cost estimates is included in your total of the [owner or operator] of [business fiscal year, ended [date]. liabilities, you may deduct that portion from address], which is [one of the following: ‘‘our this line and add that amount to lines 5 and Part A. Liability Coverage for Accidental subsidiary’’; ‘‘a subsidiary of [name and 6) $llll- Occurrences address of common parent corporation], of *5. Tangible net worth $llll which guarantor is a subsidiary’’; or ‘‘an [Fill in Alternative I if the criteria of *6. Net worth $llll- entity with which guarantor has a substantial paragraph (f)(1)(i) of Sec. 261.147 are used. *7. Current assets $llll business relationship, as defined in 40 CFR Fill in Alternative II if the criteria of *8. Current liabilities $llll 264.141(h) and 265.141(h)’’ to the United paragraph (f)(1)(ii) of Sec. 261.147 are used.] 9. Net working capital (line 7 minus line States Environmental Protection Agency 8) $llll Alternative I (EPA). *10. The sum of net income plus 1. Amount of annual aggregate liability depreciation, depletion, and amortization Recitals coverage to be demonstrated $llll-. $llll- 1. Guarantor meets or exceeds the financial *2. Current assets $llll-. *11. Total assets in U.S. (required only if test criteria and agrees to comply with the *3. Current liabilities $llll-. less than 90% of assets are located in the reporting requirements for guarantors as 4. Net working capital (line 2 minus line U.S.) $llll specified in 40 CFR 261.143(e). 3) $llll-. 12. Is line 5 at least $10 million? (Yes/No) 2. [Owner or operator] owns or operates the *5. Tangible net worth $llll-. 13. Is line 5 at least 6 times line 3? (Yes/ following facility(ies) covered by this *6. If less than 90% of assets are located No) guarantee: [List for each facility: EPA in the U.S., give total U.S. assets $lllll 14. Is line 9 at least 6 times line 3? (Yes/ Identification Number (if any issued), name, . No) and address. 7. Is line 5 at least $10 million? (Yes/No) *15. Are at least 90% of assets located in 3. ‘‘Closure plans’’ as used below refer to llll-. the U.S.? (Yes/No) If not, complete line 16. the plans maintained as required by subpart 8. Is line 4 at least 6 times line 1? (Yes/ 16. Is line 11 at least 6 times line 3? (Yes/ H of 40 CFR part 261 for the care of facilities No) llll-. No) as identified above.

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4. For value received from [owner or until [the owner or operator] obtains, and the accidental occurrences arising from operation operator], guarantor guarantees that in the EPA Regional Administrator(s) approve(s), of the facility(ies) covered by this guarantee. event of a determination by the Regional alternate coverage complying with 40 CFR Recitals Administrator that the hazardous secondary 261.143. materials at the owner or operator’s facility [Insert the following language if the 1. Guarantor meets or exceeds the financial covered by this guarantee do not meet the guarantor is a firm qualifying as a guarantor test criteria and agrees to comply with the conditions of the exclusion under due to its ‘‘substantial business relationship’’ reporting requirements for guarantors as § 261.4(a)(24), the guarantor will dispose of with the owner or operator] specified in 40 CFR 261.147(g). any hazardous secondary material as Guarantor may terminate this guarantee 2. [Owner or operator] owns or operates the hazardous waste, and close the facility in 120 days following the receipt of notification, following facility(ies) covered by this accordance with closure requirements found through certified mail, by the EPA Regional guarantee: [List for each facility: EPA in parts 264 or 265 of this chapter, as Administrator(s) for the Region(s) in which identification number (if any issued), name, applicable, or establish a trust fund as the facility(ies) is(are) located and by [the and address; and if guarantor is incorporated specified in § 261.143(a) in the name of the owner or operator]. outside the United States list the name and owner or operator in the amount of the 11. Guarantor agrees that if [owner or address of the guarantor’s registered agent in current cost estimate. operator] fails to provide alternate financial each State.] This corporate guarantee satisfies 5. Guarantor agrees that if, at the end of assurance as specified in 40 CFR parts 264, RCRA third-party liability requirements for any fiscal year before termination of this 265, or subpart H of 40 CFR 261, as [insert ‘‘sudden’’ or ‘‘nonsudden’’ or ‘‘both guarantee, the guarantor fails to meet the applicable, and obtain written approval of sudden and nonsudden’’] accidental financial test criteria, guarantor shall send such assurance from the EPA Regional occurrences in above-named owner or within 90 days, by certified mail, notice to Administrator(s) within 90 days after a notice operator facilities for coverage in the amount the EPA Regional Administrator(s) for the of cancellation by the guarantor is received of [insert dollar amount] for each occurrence and [insert dollar amount] annual aggregate. Region(s) in which the facility(ies) is(are) by an EPA Regional Administrator from 3. For value received from [owner or located and to [owner or operator] that he guarantor, guarantor shall provide such operator], guarantor guarantees to any and all intends to provide alternate financial alternate financial assurance in the name of third parties who have sustained or may assurance as specified in subpart H of 40 CFR [owner or operator]. part 261, as applicable, in the name of [owner sustain bodily injury or property damage 12. Guarantor expressly waives notice of caused by [sudden and/or nonsudden] or operator]. Within 120 days after the end acceptance of this guarantee by the EPA or accidental occurrences arising from of such fiscal year, the guarantor shall by [owner or operator]. Guarantor also operations of the facility(ies) covered by this establish such financial assurance unless expressly waives notice of amendments or guarantee that in the event that [owner or [owner or operator] has done so. modifications of the closure plan and of operator] fails to satisfy a judgment or award 6. The guarantor agrees to notify the EPA amendments or modifications of the based on a determination of liability for Regional Administrator by certified mail, of applicable requirements of 40 CFR parts 264, bodily injury or property damage to third a voluntary or involuntary proceeding under 265, or subpart H of 40 CFR 261. parties caused by [sudden and/or Title 11 (Bankruptcy), U.S. Code, naming I hereby certify that the wording of this nonsudden] accidental occurrences, arising guarantor as debtor, within 10 days after guarantee is identical to the wording from the operation of the above-named commencement of the proceeding. specified in 40 CFR 261.151(g)(1) as such facilities, or fails to pay an amount agreed to 7. Guarantor agrees that within 30 days regulations were constituted on the date first in settlement of a claim arising from or after being notified by an EPA Regional above written. alleged to arise from such injury or damage, Administrator of a determination that Effective date: llllllllllllll the guarantor will satisfy such judgment(s), guarantor no longer meets the financial test [Name of guarantor] lllllllllll award(s) or settlement agreement(s) up to the criteria or that he is disallowed from [Authorized signature for guarantor] llll limits of coverage identified above. continuing as a guarantor, he shall establish [Name of person signing] lllllllll 4. Such obligation does not apply to any alternate financial assurance as specified in [Title of person signing] lllllllll of the following: of 40 CFR parts 264, 265, or subpart H of 40 Signature of witness or notary: llllll (a) Bodily injury or property damage for CFR part 261, as applicable, in the name of (2) A guarantee, as specified in Sec. which [insert owner or operator] is obligated [owner or operator] unless [owner or 261.147(g) of this chapter, must be worded as to pay damages by reason of the assumption operator] has done so. follows, except that instructions in brackets of liability in a contract or agreement. This 8. Guarantor agrees to remain bound under are to be replaced with the relevant exclusion does not apply to liability for this guarantee notwithstanding any or all of information and the brackets deleted: damages that [insert owner or operator] the following: amendment or modification of Guarantee for Liability Coverage would be obligated to pay in the absence of the closure plan, the extension or reduction the contract or agreement. of the time of performance, or any other Guarantee made this [date] by [name of (b) Any obligation of [insert owner or modification or alteration of an obligation of guaranteeing entity], a business corporation operator] under a workers’ compensation, the owner or operator pursuant to 40 CFR organized under the laws of [if incorporated disability benefits, or unemployment parts 264, 265, or Subpart H of 40 CFR part within the United States insert ‘‘the State of compensation law or any similar law. 261. ____-’’ and insert name of State; if (c) Bodily injury to: 9. Guarantor agrees to remain bound under incorporated outside the United States insert (1) An employee of [insert owner or this guarantee for as long as [owner or the name of the country in which operator] arising from, and in the course of, operator] must comply with the applicable incorporated, the principal place of business employment by [insert owner or operator]; or financial assurance requirements of 40 CFR within the United States, and the name and (2) The spouse, child, parent, brother, or parts 264 and 265 or the financial assurance address of the registered agent in the State of sister of that employee as a consequence of, condition of 40 CFR 261.4(a)(24)(vi)(F) for the principal place of business], herein or arising from, and in the course of the above-listed facilities, except as provided referred to as guarantor. This guarantee is employment by [insert owner or operator]. in paragraph 10 of this agreement. made on behalf of [owner or operator] of This exclusion applies: 10. [Insert the following language if the [business address], which is one of the (A) Whether [insert owner or operator] may guarantor is (a) a direct or higher-tier following: ‘‘our subsidiary;’’ ‘‘a subsidiary of be liable as an employer or in any other corporate parent, or (b) a firm whose parent [name and address of common parent capacity; and corporation is also the parent corporation of corporation], of which guarantor is a (B) To any obligation to share damages the owner or operator]: subsidiary;’’ or ‘‘an entity with which with or repay another person who must pay Guarantor may terminate this guarantee by guarantor has a substantial business damages because of the injury to persons sending notice by certified mail to the EPA relationship, as defined in 40 CFR [either identified in paragraphs (1) and (2). Regional Administrator(s) for the Region(s) in 264.141(h) or 265.141(h)]’’, to any and all (d) Bodily injury or property damage which the facility(ies) is(are) located and to third parties who have sustained or may arising out of the ownership, maintenance, [owner or operator], provided that this sustain bodily injury or property damage use, or entrustment to others of any aircraft, guarantee may not be terminated unless and caused by [sudden and/or nonsudden] motor vehicle or watercraft.

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(e) Property damage to: Administrator(s) approve(s), alternate provides liability insurance covering bodily (1) Any property owned, rented, or liability coverage complying with 40 CFR injury and property damage in connection occupied by [insert owner or operator]; 261.147. with the insured’s obligation to demonstrate (2) Premises that are sold, given away or [Insert the following language if the financial responsibility under 40 CFR abandoned by [insert owner or operator] if guarantor is a firm qualifying as a guarantor 261.147. The coverage applies at [list EPA the property damage arises out of any part of due to its ‘‘substantial business relationship’’ Identification Number (if any issued), name, those premises; with the owner or operator]: and address for each facility] for [insert (3) Property loaned to [insert owner or Guarantor may terminate this guarantee ‘‘sudden accidental occurrences,’’ operator]; 120 days following receipt of notification, ‘‘nonsudden accidental occurrences,’’ or (4) Personal property in the care, custody through certified mail, by the EPA Regional ‘‘sudden and nonsudden accidental or control of [insert owner or operator]; Administrator(s) for the Region(s) in which occurrences’’; if coverage is for multiple (5) That particular part of real property on the facility(ies) is(are) located and by [the facilities and the coverage is different for which [insert owner or operator] or any owner or operator]. different facilities, indicate which facilities contractors or subcontractors working 11. Guarantor hereby expressly waives are insured for sudden accidental directly or indirectly on behalf of [insert notice of acceptance of this guarantee by any occurrences, which are insured for owner or operator] are performing operations, party. nonsudden accidental occurrences, and if the property damage arises out of these 12. Guarantor agrees that this guarantee is which are insured for both]. The limits of operations. in addition to and does not affect any other liability are [insert the dollar amount of the 5. Guarantor agrees that if, at the end of responsibility or liability of the guarantor ‘‘each occurrence’’ and ‘‘annual aggregate’’ any fiscal year before termination of this with respect to the covered facilities. limits of the Insurer’s liability], exclusive of guarantee, the guarantor fails to meet the 13. The Guarantor shall satisfy a third- legal defense costs. financial test criteria, guarantor shall send party liability claim only on receipt of one of 2. The insurance afforded with respect to within 90 days, by certified mail, notice to the following documents: such occurrences is subject to all of the terms the EPA Regional Administrator[s] for the (a) Certification from the Principal and the and conditions of the policy; provided, Region[s] in which the facility[ies] is[are] third-party claimant(s) that the liability claim however, that any provisions of the policy located and to [owner or operator] that he should be paid. The certification must be inconsistent with subsections (a) through (e) intends to provide alternate liability coverage worded as follows, except that instructions in of this Paragraph 2 are hereby amended to as specified in 40 CFR 261.147, as applicable, brackets are to be replaced with the relevant conform with subsections (a) through (e): in the name of [owner or operator]. Within information and the brackets deleted: (a) Bankruptcy or insolvency of the insured 120 days after the end of such fiscal year, the Certification of Valid Claim shall not relieve the Insurer of its obligations guarantor shall establish such liability under the policy to which this endorsement coverage unless [owner or operator] has done The undersigned, as parties [insert is attached. so. Principal] and [insert name and address of (b) The Insurer is liable for the payment of 6. The guarantor agrees to notify the EPA third-party claimant(s)], hereby certify that amounts within any deductible applicable to the claim of bodily injury and/or property Regional Administrator by certified mail of a the policy, with a right of reimbursement by damage caused by a [sudden or nonsudden] voluntary or involuntary proceeding under the insured for any such payment made by accidental occurrence arising from operating title 11 (Bankruptcy), U.S. Code, naming the Insurer. This provision does not apply [Principal’s] facility should be paid in the guarantor as debtor, within 10 days after with respect to that amount of any deductible amount of $ . commencement of the proceeding. Guarantor for which coverage is demonstrated as [Signatures] lllllllllllllll agrees that within 30 days after being notified specified in 40 CFR 261.147(f). Principal llllllllllllllll by an EPA Regional Administrator of a (c) Whenever requested by a Regional (Notary) Date llllllllllllll determination that guarantor no longer meets Administrator of the U.S. Environmental [Signatures] lllllllllllllll the financial test criteria or that he is Protection Agency (EPA), the Insurer agrees Claimant(s) lllllllllllllll to furnish to the Regional Administrator a disallowed from continuing as a guarantor, (Notary) Date llllllllllllll he shall establish alternate liability coverage (b) A valid final court order establishing a signed duplicate original of the policy and all as specified in 40 CFR 261.147 in the name judgment against the Principal for bodily endorsements. of [owner or operator], unless [owner or injury or property damage caused by sudden (d) Cancellation of this endorsement, operator] has done so. or nonsudden accidental occurrences arising whether by the Insurer, the insured, a parent 7. Guarantor reserves the right to modify from the operation of the Principal’s facility corporation providing insurance coverage for this agreement to take into account or group of facilities. its subsidiary, or by a firm having an amendment or modification of the liability 14. In the event of combination of this insurable interest in and obtaining liability requirements set by 40 CFR 261.147, guarantee with another mechanism to meet insurance on behalf of the owner or operator provided that such modification shall liability requirements, this guarantee will be of the facility, will be effective only upon become effective only if a Regional considered [insert ‘‘primary’’ or ‘‘excess’’] written notice and only after the expiration Administrator does not disapprove the coverage. of 60 days after a copy of such written notice modification within 30 days of receipt of I hereby certify that the wording of the is received by the Regional Administrator(s) notification of the modification. guarantee is identical to the wording of the EPA Region(s) in which the facility(ies) 8. Guarantor agrees to remain bound under specified in 40 CFR 261.151(g)(2) as such is(are) located. this guarantee for so long as [owner or regulations were constituted on the date (e) Any other termination of this operator] must comply with the applicable shown immediately below. endorsement will be effective only upon requirements of 40 CFR 261.147 for the Effective date: llllllllllllll written notice and only after the expiration above-listed facility(ies), except as provided [Name of guarantor] lllllllllll of thirty (30) days after a copy of such written in paragraph 10 of this agreement. [Authorized signature for guarantor] llll notice is received by the Regional 9. [Insert the following language if the [Name of person signing] lllllllll Administrator(s) of the EPA Region(s) in guarantor is (a) a direct or higher-tier [Title of person signing] lllllllll which the facility(ies) is (are) located. corporate parent, or (b) a firm whose parent Signature of witness or notary: llllll Attached to and forming part of policy No. corporation is also the parent corporation of (h) A hazardous waste facility liability —— issued by [name of Insurer], herein the owner or operator]: endorsement as required § 261.147 must be called the Insurer, of [address of Insurer] to 10. Guarantor may terminate this guarantee worded as follows, except that instructions in [name of insured] of [address] this by sending notice by certified mail to the brackets are to be replaced with the relevant llllllll day of llllllll, EPA Regional Administrator(s) for the information and the brackets deleted: 19ll. The effective date of said policy is Region(s) in which the facility(ies) is(are) llllllll day of llllllll, located and to [owner or operator], provided Hazardous Secondary Material Reclamation/ 19ll. that this guarantee may not be terminated Intermediate Facility Liability Endorsement I hereby certify that the wording of this unless and until [the owner or operator] 1. This endorsement certifies that the endorsement is identical to the wording obtains, and the EPA Regional policy to which the endorsement is attached specified in 40 CFR 261.151(h) as such

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regulation was constituted on the date first will be effective only upon written notice damages by reason of the assumption of above written, and that the Insurer is and only after the expiration of 60 days after liability in a contract or agreement. This licensed to transact the business of a copy of such written notice is received by exclusion does not apply to liability for insurance, or eligible to provide insurance as the Regional Administrator(s) of the EPA damages that [insert principal] would be an excess or surplus lines insurer, in one or Region(s) in which the facility(ies) is(are) obligated to pay in the absence of the more States. located. contract or agreement. [Signature of Authorized Representative of (e) Any other termination of the insurance (b) Any obligation of [insert principal] Insurer] will be effective only upon written notice under a workers’ compensation, disability [Type name] and only after the expiration of thirty (30) benefits, or unemployment compensation [Title], Authorized Representative of [name days after a copy of such written notice is law or any similar law. of Insurer] received by the Regional Administrator(s) of (c) Bodily injury to: [Address of Representative] the EPA Region(s) in which the facility(ies) (1) An employee of [insert principal] (i) A certificate of liability insurance as is (are) located. arising from, and in the course of, required in § 261.147 must be worded as I hereby certify that the wording of this employment by [insert principal]; or follows, except that the instructions in instrument is identical to the wording (2) The spouse, child, parent, brother or brackets are to be replaced with the relevant specified in 40 CFR 261.151(i) as such sister of that employee as a consequence of, information and the brackets deleted: regulation was constituted on the date first or arising from, and in the course of employment by [insert principal]. Hazardous Secondary Material Reclamation/ above written, and that the Insurer is licensed to transact the business of This exclusion applies: Intermediate Facility Certificate of Liability (A) Whether [insert principal] may be Insurance insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one liable as an employer or in any other 1. [Name of Insurer], (the ‘‘Insurer’’), of or more States. capacity; and [address of Insurer] hereby certifies that it [Signature of authorized representative of (B) To any obligation to share damages has issued liability insurance covering bodily Insurer] with or repay another person who must pay injury and property damage to [name of [Type name] damages because of the injury to persons insured], (the ‘‘insured’’), of [address of [Title], Authorized Representative of [name identified in paragraphs (1) and (2). insured] in connection with the insured’s of Insurer] (d) Bodily injury or property damage obligation to demonstrate financial [Address of Representative] arising out of the ownership, maintenance, responsibility under 40 CFR parts 264, 265, (j) A letter of credit, as specified in use, or entrustment to others of any aircraft, and the financial assurance condition of 40 § 261.147(h) of this chapter, must be worded motor vehicle or watercraft. CFR 261.4(a)(24)(vi)(F). The coverage applies as follows, except that instructions in (e) Property damage to: at [list EPA Identification Number (if any brackets are to be replaced with the relevant (1) Any property owned, rented, or issued), name, and address for each facility] information and the brackets deleted: occupied by [insert principal]; for [insert ‘‘sudden accidental occurrences,’’ (2) Premises that are sold, given away or ‘‘nonsudden accidental occurrences,’’ or Irrevocable Standby Letter of Credit abandoned by [insert principal] if the ‘‘sudden and nonsudden accidental Name and Address of Issuing Institution ll property damage arises out of any part of occurrences’’; if coverage is for multiple Regional Administrator(s) llllllll those premises; facilities and the coverage is different for Region(s) llllllllllllllll (3) Property loaned to [insert principal]; different facilities, indicate which facilities U.S. Environmental Protection Agency ll (4) Personal property in the care, custody are insured for sudden accidental Dear Sir or Madam: We hereby establish or control of [insert principal]; occurrences, which are insured for our Irrevocable Standby Letter of Credit No. (5) That particular part of real property on nonsudden accidental occurrences, and llll----- in the favor of [’’any and all which [insert principal] or any contractors or which are insured for both]. The limits of third-party liability claimants’’ or insert subcontractors working directly or indirectly liability are [insert the dollar amount of the name of trustee of the standby trust fund], at on behalf of [insert principal] are performing ‘‘each occurrence’’ and ‘‘annual aggregate’’ the request and for the account of [owner or operations, if the property damage arises out limits of the Insurer’s liability], exclusive of operator’s name and address] for third-party of these operations. legal defense costs. The coverage is provided liability awards or settlements up to [in [Signatures] lllllllllllllll under policy number, issued on [date]. The words] U.S. Grantor lllllllllllllllll effective date of said policy is [date]. dollars $llll----- per occurrence and the [Signatures] lllllllllllllll 2. The Insurer further certifies the annual aggregate amount of [in words] U.S. Claimant(s) lllllllllllllll following with respect to the insurance dollars $_—, for sudden accidental or (2) a valid final court order establishing a described in Paragraph 1: occurrences and/or for third-party liability judgment against the Grantor for bodily (a) Bankruptcy or insolvency of the insured awards or settlements up to the amount of [in injury or property damage caused by sudden shall not relieve the Insurer of its obligations words] U.S. dollars $llll----- per or nonsudden accidental occurrences arising under the policy. occurrence, and the annual aggregate amount from the operation of the Grantor’s facility or (b) The Insurer is liable for the payment of of [in words] U.S. dollars $llll-----, for group of facilities.] amounts within any deductible applicable to nonsudden accidental occurrences available This letter of credit is effective as of [date] the policy, with a right of reimbursement by upon presentation of a sight draft bearing and shall expire on [date at least one year the insured for any such payment made by reference to this letter of credit No. lllll later], but such expiration date shall be the Insurer. This provision does not apply ----, and [insert the following language if the automatically extended for a period of [at with respect to that amount of any deductible letter of credit is being used without a least one year] on [date and on each for which coverage is demonstrated as standby trust fund: (1) a signed certificate successive expiration date, unless, at least specified in 40 CFR 261.147. reading as follows: 120 days before the current expiration date, (c) Whenever requested by a Regional we notify you, the USEPA Regional Administrator of the U.S. Environmental Certificate of Valid Claim Administrator for Region [Region], and Protection Agency (EPA), the Insurer agrees The undersigned, as parties [insert [owner’s or operator’s name] by certified mail to furnish to the Regional Administrator a principal] and [insert name and address of that we have decided not to extend this letter signed duplicate original of the policy and all third party claimant(s)], hereby certify that of credit beyond the current expiration date. endorsements. the claim of bodily injury and/or property Whenever this letter of credit is drawn on (d) Cancellation of the insurance, whether damage caused by a [sudden or nonsudden] under and in compliance with the terms of by the insurer, the insured, a parent accidental occurrence arising from operations this credit, we shall duly honor such draft corporation providing insurance coverage for of [principal’s] facility should be paid in the upon presentation to us. its subsidiary, or by a firm having an amount of $[ ]. We hereby certify that the [Insert the following language if a standby insurable interest in and obtaining liability claim does not apply to any of the following: trust fund is not being used: ‘‘In the event insurance on behalf of the owner or operator (a) Bodily injury or property damage for that this letter of credit is used in of the hazardous waste management facility, which [insert principal] is obligated to pay combination with another mechanism for

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liability coverage, this letter of credit shall be (k) A surety bond, as specified in Sec. EPA Identification Number (if any issued), considered [insert ‘‘primary’’ or ‘‘excess’’ 261.147(i) of this chapter, must be worded as name, and address for each facility coverage].’’ follows: except that instructions in brackets guaranteed by this bond: ll We certify that the wording of this letter of are to be replaced with the relevant lllllllllllllllllllll credit is identical to the wording specified in information and the brackets deleted: lllllllllllllllllllll 40 CFR 261.151(j) as such regulations were Nonsudden constituted on the date shown immediately Payment Bond below. [Signature(s) and title(s) of official(s) Surety Bond No. [Insert number] Sudden accidental of issuing institution] [Date]. Parties [Insert name and address of owner This credit is subject to [insert ‘‘the most or operator], Principal, incorporated in accidental recent edition of the Uniform Customs and [Insert State of incorporation] of [Insert city occurrences Practice for Documentary Credits, published and State of principal place of business] and and copyrighted by the International [Insert name and address of surety occurrences Chamber of Commerce,’’ or ‘‘the Uniform company(ies)], Surety Company(ies), of lllllllllllllllllllll Commercial Code’’]. [Insert surety(ies) place of business]. lllllllllllllllllllll

Penal Sum Per Occurrence ...... [insert amount] ...... [insert amount] Annual Aggregate ...... [insert amount] ...... [insert amount] lllllllllllllllllllll (A) Whether [insert Principal] may be [Signature(s)] lllllllllllllllllllll liable as an employer or in any other Claimant(s) capacity; and Purpose: This is an agreement between the [Notary] Date (B) To any obligation to share damages Surety(ies) and the Principal under which or (b) A valid final court order establishing with or repay another person who must pay the Surety(ies), its(their) successors and a judgment against the Principal for bodily damages because of the injury to persons injury or property damage caused by sudden assignees, agree to be responsible for the identified in paragraphs (1) and (2). payment of claims against the Principal for or nonsudden accidental occurrences arising (d) Bodily injury or property damage from the operation of the Principal’s facility bodily injury and/or property damage to arising out of the ownership, maintenance, third parties caused by [‘‘sudden’’ and/or or group of facilities. use, or entrustment to others of any aircraft, (5) In the event of combination of this bond ‘‘nonsudden’’] accidental occurrences arising motor vehicle or watercraft. from operations of the facility or group of with another mechanism for liability (e) Property damage to: coverage, this bond will be considered [insert facilities in the sums prescribed herein; (1) Any property owned, rented, or ‘‘primary’’ or ‘‘excess’’] coverage. subject to the governing provisions and the occupied by [insert Principal]; (6) The liability of the Surety(ies) shall not following conditions. (2) Premises that are sold, given away or be discharged by any payment or succession Governing Provisions: abandoned by [insert Principal] if the of payments hereunder, unless and until (1) Section 3004 of the Resource property damage arises out of any part of such payment or payments shall amount in Conservation and Recovery Act of 1976, as those premises; the aggregate to the penal sum of the bond. amended. (3) Property loaned to [insert Principal]; In no event shall the obligation of the (2) Rules and regulations of the U.S. (4) Personal property in the care, custody Surety(ies) hereunder exceed the amount of Environmental Protection Agency (EPA), or control of [insert Principal]; said annual aggregate penal sum, provided particularly 40 CFR parts 264, 265, and (5) That particular part of real property on that the Surety(ies) furnish(es) notice to the Subpart H of 40 CFR part 261 (if applicable). which [insert Principal] or any contractors or Regional Administrator forthwith of all (3) Rules and regulations of the governing subcontractors working directly or indirectly claims filed and payments made by the State agency (if applicable) [insert citation]. on behalf of [insert Principal] are performing Surety(ies) under this bond. Conditions: operations, if the property damage arises out (7) The Surety(ies) may cancel the bond by (1) The Principal is subject to the of these operations. sending notice of cancellation by certified applicable governing provisions that require (2) This bond assures that the Principal mail to the Principal and the USEPA the Principal to have and maintain liability will satisfy valid third party liability claims, Regional Administrator for Region [Region ], coverage for bodily injury and property as described in condition 1. provided, however, that cancellation shall damage to third parties caused by [‘‘sudden’’ (3) If the Principal fails to satisfy a valid not occur during the 120 days beginning on and/or ‘‘nonsudden’’] accidental occurrences third party liability claim, as described the date of receipt of the notice of arising from operations of the facility or above, the Surety(ies) becomes liable on this cancellation by the Principal and the group of facilities. Such obligation does not bond obligation. Regional Administrator, as evidenced by the apply to any of the following: (4) The Surety(ies) shall satisfy a third return receipt. (a) Bodily injury or property damage for party liability claim only upon the receipt of (8) The Principal may terminate this bond which [insert Principal] is obligated to pay one of the following documents: by sending written notice to the Surety(ies) damages by reason of the assumption of (a) Certification from the Principal and the and to the EPA Regional Administrator(s) of liability in a contract or agreement. This third party claimant(s) that the liability claim the EPA Region(s) in which the bonded exclusion does not apply to liability for should be paid. The certification must be facility(ies) is (are) located. damages that [insert Principal] would be worded as follows, except that instructions in (9) The Surety(ies) hereby waive(s) obligated to pay in the absence of the brackets are to be replaced with the relevant notification of amendments to applicable contract or agreement. information and the brackets deleted: laws, statutes, rules and regulations and (b) Any obligation of [insert Principal] agree(s) that no such amendment shall in any Certification of Valid Claim under a workers’ compensation, disability way alleviate its (their) obligation on this benefits, or unemployment compensation The undersigned, as parties [insert name of bond. law or similar law. Principal] and [insert name and address of (10) This bond is effective from [insert (c) Bodily injury to: third party claimant(s)], hereby certify that date] (12:01 a.m., standard time, at the (1) An employee of [insert Principal] the claim of bodily injury and/or property address of the Principal as stated herein) and arising from, and in the course of, damage caused by a [sudden or nonsudden] shall continue in force until terminated as employment by [insert principal]; or accidental occurrence arising from operating described above. (2) The spouse, child, parent, brother or [Principal’s] facility should be paid in the In Witness Whereof, the Principal and sister of that employee as a consequence of, amount of $[ ]. Surety(ies) have executed this Bond and have or arising from, and in the course of [Signature] affixed their seals on the date set forth above. employment by [insert Principal]. This Principal The persons whose signatures appear exclusion applies: [Notary] Date below hereby certify that they are authorized

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to execute this surety bond on behalf of the one instrument affords combined coverage as made by the Trustee pursuant to this Principal and Surety(ies) and that the demonstrated by this Agreement]. Agreement. The Fund shall be held by the wording of this surety bond is identical to the Section 3. Establishment of Fund. The Trustee, IN TRUST, as hereinafter provided. wording specified in 40 CFR 261.151(k), as Grantor and the Trustee hereby establish a The Trustee shall not be responsible nor shall such regulations were constituted on the date trust fund, hereinafter the ‘‘Fund,’’ for the it undertake any responsibility for the this bond was executed. benefit of any and all third parties injured or amount or adequacy of, nor any duty to damaged by [sudden and/or nonsudden] collect from the Grantor, any payments PRINCIPAL accidental occurrences arising from operation necessary to discharge any liabilities of the [Signature(s)] of the facility(ies) covered by this guarantee, Grantor established by EPA. [Name(s)] in the amounts of llll-[up to $1 million] Section 4. Payment for Bodily Injury or [Title(s)] per occurrence and [up to $2 million] annual Property Damage. The Trustee shall satisfy a [Corporate Seal] aggregate for sudden accidental occurrences third party liability claim by making and llll [up to $3 million] per payments from the Fund only upon receipt CORPORATE SURETY[IES] occurrence and llll-[up to $6 million] of one of the following documents; [Name and address] annual aggregate for nonsudden occurrences, (a) Certification from the Grantor and the State of incorporation: llllllllll except that the Fund is not established for third party claimant(s) that the liability claim Liability Limit: $ llllllllllll the benefit of third parties for the following: should be paid. The certification must be [Signature(s)] (a) Bodily injury or property damage for worded as follows, except that instructions in [Name(s) and title(s)] which [insert Grantor] is obligated to pay brackets are to be replaced with the relevant [Corporate seal] damages by reason of the assumption of information and the brackets deleted: [For every co-surety, provide signature(s), liability in a contract or agreement. This Certification of Valid Claim corporate seal, and other information in the exclusion does not apply to liability for same manner as for Surety above.] damages that [insert Grantor] would be The undersigned, as parties [insert Grantor] Bond premium: $ llllllllllll obligated to pay in the absence of the and [insert name and address of third party (l)(1) A trust agreement, as specified in contract or agreement. claimant(s)], hereby certify that the claim of § 261.147(j) of this chapter, must be worded (b) Any obligation of [insert Grantor] under bodily injury and/or property damage caused as follows, except that instructions in a workers’ compensation, disability benefits, by a [sudden or nonsudden] accidental brackets are to be replaced with the relevant or unemployment compensation law or any occurrence arising from operating [Grantor’s] information and the brackets deleted: similar law. facility or group of facilities should be paid Trust Agreement (c) Bodily injury to: in the amount of $[ ]. Trust Agreement, the ‘‘Agreement,’’ (1) An employee of [insert Grantor] arising [Signatures] from, and in the course of, employment by entered into as of [date] by and between Grantor [name of the owner or operator] a [name of [insert Grantor]; or State] [insert ‘‘corporation,’’ ‘‘partnership,’’ (2) The spouse, child, parent, brother or [Signatures] sister of that employee as a consequence of, ‘‘association,’’ or ‘‘proprietorship’’], the Claimant(s) ‘‘Grantor,’’ and [name of corporate trustee], or arising from, and in the course of [insert, ‘‘incorporated in the State of employment by [insert Grantor]. This (b) A valid final court order establishing a llll’’ or ‘‘a national bank’’], the exclusion applies: judgment against the Grantor for bodily ‘‘trustee.’’ (A) Whether [insert Grantor] may be liable injury or property damage caused by sudden Whereas, the United States Environmental as an employer or in any other capacity; and or nonsudden accidental occurrences arising Protection Agency, ‘‘EPA,’’ an agency of the (B) To any obligation to share damages from the operation of the Grantor’s facility or United States Government, has established with or repay another person who must pay group of facilities. certain regulations applicable to the Grantor, damages because of the injury to persons Section 5. Payments Comprising the Fund. requiring that an owner or operator must identified in paragraphs (1) and (2). Payments made to the Trustee for the Fund demonstrate financial responsibility for (d) Bodily injury or property damage shall consist of cash or securities acceptable bodily injury and property damage to third arising out of the ownership, maintenance, to the Trustee. parties caused by sudden accidental and/or use, or entrustment to others of any aircraft, Section 6. Trustee Management. The nonsudden accidental occurrences arising motor vehicle or watercraft. Trustee shall invest and reinvest the from operations of the facility or group of (e) Property damage to: principal and income, in accordance with facilities. (1) Any property owned, rented, or general investment policies and guidelines Whereas, the Grantor has elected to occupied by [insert Grantor]; which the Grantor may communicate in establish a trust to assure all or part of such (2) Premises that are sold, given away or writing to the Trustee from time to time, financial responsibility for the facilities abandoned by [insert Grantor] if the property subject, however, to the provisions of this identified herein. damage arises out of any part of those section. In investing, reinvesting, exchanging, Whereas, the Grantor, acting through its premises; selling, and managing the Fund, the Trustee duly authorized officers, has selected the (3) Property loaned to [insert Grantor]; shall discharge his duties with respect to the Trustee to be the trustee under this (4) Personal property in the care, custody trust fund solely in the interest of the agreement, and the Trustee is willing to act or control of [insert Grantor]; beneficiary and with the care, skill, as trustee. (5) That particular part of real property on prudence, and diligence under the Now, therefore, the Grantor and the which [insert Grantor] or any contractors or circumstance then prevailing which persons Trustee agree as follows: subcontractors working directly or indirectly of prudence, acting in a like capacity and Section 1. Definitions. As used in this on behalf of [insert Grantor] are performing familiar with such matters, would use in the Agreement: operations, if the property damage arises out conduct of an enterprise of a like character (a) The term ‘‘Grantor’’ means the owner or of these operations. and with like aims; except that: operator who enters into this Agreement and In the event of combination with another (i) Securities or other obligations of the any successors or assigns of the Grantor. mechanism for liability coverage, the Fund Grantor, or any other owner or operator of the (b) The term ‘‘Trustee’’ means the Trustee shall be considered [insert ‘‘primary’’ or facilities, or any of their affiliates as defined who enters into this Agreement and any ‘‘excess’’] coverage. in the Investment Company Act of 1940, as successor Trustee. The Fund is established initially as amended, 15 U.S.C. 80a–2.(a), shall not be Section 2. Identification of Facilities. This consisting of the property, which is acquired or held unless they are securities or agreement pertains to the facilities identified acceptable to the Trustee, described in other obligations of the Federal or a State on attached schedule A [on schedule A, for Schedule B attached hereto. Such property government; each facility list the EPA Identification and any other property subsequently (ii) The Trustee is authorized to invest the Number (if any issued), name, and address of transferred to the Trustee is referred to as the Fund in time or demand deposits of the the facility(ies) and the amount of liability Fund, together with all earnings and profits Trustee, to the extent insured by an agency coverage, or portions thereof, if more than thereon, less any payments or distributions of the Federal or State government; and

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(iii) The Trustee is authorized to hold cash connection with the administration of this be in writing, signed by the EPA Regional awaiting investment or distribution Trust, including fees for legal services Administrators of the Regions in which the uninvested for a reasonable time and without rendered to the Trustee, the compensation of facilities are located, or their designees, and liability for the payment of interest thereon. the Trustee to the extent not paid directly by the Trustee shall act and shall be fully Section 7. Commingling and Investment. The the Grantor, and all other proper charges and protected in acting in accordance with such Trustee is expressly authorized in its disbursements of the Trustee shall be paid orders, requests, and instructions. The discretion: from the Fund. Trustee shall have the right to assume, in the (a) To transfer from time to time any or all Section 10. Annual Valuations. The absence of written notice to the contrary, that of the assets of the Fund to any common Trustee shall annually, at least 30 days prior no event constituting a change or a commingled, or collective trust fund created to the anniversary date of establishment of termination of the authority of any person to by the Trustee in which the fund is eligible the Fund, furnish to the Grantor and to the act on behalf of the Grantor or EPA to participate, subject to all of the provisions appropriate EPA Regional Administrator a hereunder has occurred. The Trustee shall thereof, to be commingled with the assets of statement confirming the value of the Trust. have no duty to act in the absence of such other trusts participating therein; and Any securities in the Fund shall be valued orders, requests, and instructions from the (b) To purchase shares in any investment at market value as of no more than 60 days Grantor and/or EPA, except as provided for company registered under the Investment prior to the anniversary date of establishment herein. Company Act of 1940, 15 U.S.C. 81a–1 et of the Fund. The failure of the Grantor to Section 15. Notice of Nonpayment. If a seq., including one which may be created, object in writing to the Trustee within 90 payment for bodily injury or property managed, underwritten, or to which days after the statement has been furnished damage is made under Section 4 of this trust, investment advice is rendered or the shares to the Grantor and the EPA Regional the Trustee shall notify the Grantor of such of which are sold by the Trustee. The Trustee Administrator shall constitute a conclusively payment and the amount(s) thereof within may vote such shares in its discretion. binding assent by the Grantor barring the five (5) working days. The Grantor shall, on Section 8. Express Powers of Trustee. Grantor from asserting any claim or liability or before the anniversary date of the Without in any way limiting the powers and against the Trustee with respect to matters establishment of the Fund following such discretions conferred upon the Trustee by the disclosed in the statement. notice, either make payments to the Trustee other provisions of this Agreement or by law, Section 11. Advice of Counsel. The Trustee in amounts sufficient to cause the trust to the Trustee is expressly authorized and may from time to time consult with counsel, return to its value immediately prior to the empowered: who may be counsel to the Grantor with payment of claims under Section 4, or shall (a) To sell, exchange, convey, transfer, or respect to any question arising as to the provide written proof to the Trustee that otherwise dispose of any property held by it, construction of this Agreement or any action other financial assurance for liability by public or private sale. No person dealing to be taken hereunder. The Trustee shall be coverage has been obtained equaling the with the Trustee shall be bound to see to the fully protected, to the extent permitted by amount necessary to return the trust to its application of the purchase money or to law, in acting upon the advice of counsel. value prior to the payment of claims. If the inquire into the validity or expediency of any Section 12. Trustee Compensation. The Grantor does not either make payments to the such sale or other disposition; Trustee shall be entitled to reasonable Trustee or provide the Trustee with such (b) To make, execute, acknowledge, and compensation for its services as agreed upon proof, the Trustee shall within 10 working deliver any and all documents of transfer and in writing from time to time with the Grantor. days after the anniversary date of the conveyance and any and all other Section 13. Successor Trustee. The Trustee establishment of the Fund provide a written instruments that may be necessary or may resign or the Grantor may replace the notice of nonpayment to the EPA Regional appropriate to carry out the powers herein Trustee, but such resignation or replacement Administrator. granted; shall not be effective until the Grantor has Section 16. Amendment of Agreement. (c) To register any securities held in the appointed a successor trustee and this This Agreement may be amended by an Fund in its own name or in the name of a successor accepts the appointment. The instrument in writing executed by the nominee and to hold any security in bearer successor trustee shall have the same powers Grantor, the Trustee, and the appropriate form or in book entry, or to combine and duties as those conferred upon the EPA Regional Administrator, or by the certificates representing such securities with Trustee hereunder. Upon the successor Trustee and the appropriate EPA Regional certificates of the same issue held by the trustee’s acceptance of the appointment, the Administrator if the Grantor ceases to exist. Trustee in other fiduciary capacities, or to Trustee shall assign, transfer, and pay over to Section 17. Irrevocability and Termination. deposit or arrange for the deposit of such the successor trustee the funds and Subject to the right of the parties to amend securities in a qualified central depository properties then constituting the Fund. If for this Agreement as provided in Section 16, even though, when so deposited, such any reason the Grantor cannot or does not act this Trust shall be irrevocable and shall securities may be merged and held in bulk in the event of the resignation of the Trustee, continue until terminated at the written in the name of the nominee of such the Trustee may apply to a court of agreement of the Grantor, the Trustee, and depository with other securities deposited competent jurisdiction for the appointment the EPA Regional Administrator, or by the therein by another person, or to deposit or of a successor trustee or for instructions. The Trustee and the EPA Regional Administrator, arrange for the deposit of any securities successor trustee shall specify the date on if the Grantor ceases to exist. Upon issued by the United States Government, or which it assumes administration of the trust termination of the Trust, all remaining trust any agency or instrumentality thereof, with a in a writing sent to the Grantor, the EPA property, less final trust administration Federal Reserve bank, but the books and Regional Administrator, and the present expenses, shall be delivered to the Grantor. records of the Trustee shall at all times show Trustee by certified mail 10 days before such The Regional Administrator will agree to that all such securities are part of the Fund; change becomes effective. Any expenses termination of the Trust when the owner or (d) To deposit any cash in the Fund in incurred by the Trustee as a result of any of operator substitutes alternate financial interest-bearing accounts maintained or the acts contemplated by this section shall be assurance as specified in this section. savings certificates issued by the Trustee, in paid as provided in Section 9. Section 18. Immunity and Indemnification. its separate corporate capacity, or in any Section 14. Instructions to the Trustee. All The Trustee shall not incur personal liability other banking institution affiliated with the orders, requests, and instructions by the of any nature in connection with any act or Trustee, to the extent insured by an agency Grantor to the Trustee shall be in writing, omission, made in good faith, in the of the Federal or State government; and signed by such persons as are designated in administration of this Trust, or in carrying (e) To compromise or otherwise adjust all the attached Exhibit A or such other out any directions by the Grantor or the EPA claims in favor of or against the Fund. designees as the Grantor may designate by Regional Administrator issued in accordance Section 9. Taxes and Expenses. All taxes of amendments to Exhibit A. The Trustee shall with this Agreement. The Trustee shall be any kind that may be assessed or levied be fully protected in acting without inquiry indemnified and saved harmless by the against or in respect of the Fund and all in accordance with the Grantor’s orders, Grantor or from the Trust Fund, or both, from brokerage commissions incurred by the Fund requests, and instructions. All orders, and against any personal liability to which shall be paid from the Fund. All other requests, and instructions by the EPA the Trustee may be subjected by reason of expenses incurred by the Trustee in Regional Administrator to the Trustee shall any act or conduct in its official capacity,

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including all expenses reasonably incurred in Whereas the United States Environmental This exclusion applies: its defense in the event the Grantor fails to Protection Agency, ‘‘EPA,’’ an agency of the (A) Whether [insert Grantor] may be liable provide such defense. United States Government, has established as an employer or in any other capacity; and Section 19. Choice of Law. This Agreement certain regulations applicable to the Grantor, (B) To any obligation to share damages shall be administered, construed, and requiring that an owner or operator must with or repay another person who must pay enforced according to the laws of the State demonstrate financial responsibility for damages because of the injury to persons of [enter name of State]. bodily injury and property damage to third identified in paragraphs (1) and (2). Section 20. Interpretation. As used in this parties caused by sudden accidental and/or (d) Bodily injury or property damage Agreement, words in the singular include the nonsudden accidental occurrences arising arising out of the ownership, maintenance, plural and words in the plural include the from operations of the facility or group of use, or entrustment to others of any aircraft, singular. The descriptive headings for each facilities. motor vehicle or watercraft. section of this Agreement shall not affect the Whereas, the Grantor has elected to (e) Property damage to: interpretation or the legal efficacy of this establish a standby trust into which the (1) Any property owned, rented, or Agreement. proceeds from a letter of credit may be occupied by [insert Grantor]; deposited to assure all or part of such In Witness Whereof the parties have (2) Premises that are sold, given away or financial responsibility for the facilities caused this Agreement to be executed by abandoned by [insert Grantor] if the property identified herein. their respective officers duly authorized and damage arises out of any part of those their corporate seals to be hereunto affixed Whereas, the Grantor, acting through its duly authorized officers, has selected the premises; and attested as of the date first above written. (3) Property loaned by [insert Grantor]; The parties below certify that the wording of Trustee to be the trustee under this agreement, and the Trustee is willing to act (4) Personal property in the care, custody this Agreement is identical to the wording or control of [insert Grantor]; specified in 40 CFR 261.151(l) as such as trustee. (5) That particular part of real property on regulations were constituted on the date first Now, therefore, the Grantor and the which [insert Grantor] or any contractors or above written. Trustee agree as follows: Section 1. Definitions. As used in this subcontractors working directly or indirectly [Signature of Grantor] Agreement: on behalf of [insert Grantor] are performing [Title] (a) The term Grantor means the owner or operations, if the property damage arises out operator who enters into this Agreement and of these operations. Attest: any successors or assigns of the Grantor. In the event of combination with another [Title] (b) The term Trustee means the Trustee mechanism for liability coverage, the Fund who enters into this Agreement and any shall be considered [insert ‘‘primary’’ or [Seal] successor Trustee. ‘‘excess’’] coverage. [Signature of Trustee] Section 2. Identification of Facilities. This The Fund is established initially as Agreement pertains to the facilities identified Attest: consisting of the proceeds of the letter of on attached schedule A [on schedule A, for credit deposited into the Fund. Such [Title] each facility list the EPA Identification proceeds and any other property [Seal] Number (if any issued), name, and address of subsequently transferred to the Trustee is the facility(ies) and the amount of liability referred to as the Fund, together with all (2) The following is an example of the coverage, or portions thereof, if more than earnings and profits thereon, less any certification of acknowledgement which one instrument affords combined coverage as payments or distributions made by the must accompany the trust agreement for a demonstrated by this Agreement]. Trustee pursuant to this Agreement. The trust fund as specified in Sec. 261.147(j) of Section 3. Establishment of Fund. The Fund shall be held by the Trustee, IN this chapter. State requirements may differ Grantor and the Trustee hereby establish a TRUST, as hereinafter provided. The Trustee on the proper standby trust fund, hereafter the ‘‘Fund,’’ for shall not be responsible nor shall it State of lllllllllllllllll the benefit of any and all third parties injured undertake any responsibility for the amount County of llllllllllllllll or damaged by [sudden and/or nonsudden] or adequacy of, nor any duty to collect from On this [date], before me personally came accidental occurrences arising from operation the Grantor, any payments necessary to [owner or operator] to me known, who, being of the facility(ies) covered by this guarantee, discharge any liabilities of the Grantor by me duly sworn, did depose and say that in the amounts of llll-[up to $1 million] established by EPA. she/he resides at [address], that she/he is per occurrence and llll-[up to $2 Section 4. Payment for Bodily Injury or [title] of [corporation], the corporation million] annual aggregate for sudden Property Damage. The Trustee shall satisfy a llll described in and which executed the above accidental occurrences and -[up to third party liability claim by drawing on the llll instrument; that she/he knows the seal of $3 million] per occurrence and -[up letter of credit described in Schedule B and said corporation; that the seal affixed to such to $6 million] annual aggregate for by making payments from the Fund only instrument is such corporate seal; that it was nonsudden occurrences, except that the Fund upon receipt of one of the following so affixed by order of the Board of Directors is not established for the benefit of third documents: parties for the following: of said corporation, and that she/he signed (a) Certification from the Grantor and the (a) Bodily injury or property damage for her/ his name thereto by like order. third party claimant(s) that the liability claim which [insert Grantor] is obligated to pay should be paid. The certification must be [Signature of Notary Public] damages by reason of the assumption of worded as follows, except that instructions in liability in a contract or agreement. This (m)(1) A standby trust agreement, as brackets are to be replaced with the relevant exclusion does not apply to liability for specified in § 261.147(h) of this chapter, must information and the brackets deleted: be worded as follows, except that damages that [insert Grantor] would be instructions in brackets are to be replaced obligated to pay in the absence of the Certification of Valid Claim with the relevant information and the contract or agreement. The undersigned, as parties [insert Grantor] brackets deleted: (b) Any obligation of [insert Grantor] under and [insert name and address of third party a workers’ compensation, disability benefits, Standby Trust Agreement claimant(s)], hereby certify that the claim of or unemployment compensation law or any bodily injury and/or property damage caused Trust Agreement, the ‘‘Agreement,’’ similar law. by a [sudden or nonsudden] accidental entered into as of [date] by and between (c) Bodily injury to: occurrence arising from operating [Grantor’s] [name of the owner or operator] a [name of (1) An employee of [insert Grantor] arising facility should be paid in the amount of a State] [insert ‘‘corporation,’’ ‘‘partnership,’’ from, and in the course of, employment by $[ ] ‘‘association,’’ or ‘‘proprietorship’’], the [insert Grantor]; or [Signature] lllllllllllllll ‘‘Grantor,’’ and [name of corporate trustee], (2) The spouse, child, parent, brother or Grantor lllllllllllllllll [insert, ‘‘incorporated in the State of sister of that employee as a consequence of, ______’’ or ‘‘a national bank’’], the or arising from, and in the course of [Signatures] lllllllllllllll ‘‘trustee.’’ employment by [insert Grantor]. Claimant(s) lllllllllllllll

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(b) A valid final court order establishing a (b) To make, execute, acknowledge, and competent jurisdiction for the appointment judgment against the Grantor for bodily deliver any and all documents of transfer and of a successor trustee or for instructions. The injury or property damage caused by sudden conveyance and any and all other successor trustee shall specify the date on or nonsudden accidental occurrences arising instruments that may be necessary or which it assumes administration of the trust from the operation of the Grantor’s facility or appropriate to carry out the powers herein in a writing sent to the Grantor, the EPA group of facilities. granted; Regional Administrator and the present Section 5. Payments Comprising the Fund. (c) To register any securities held in the Trustee by certified mail 10 days before such Payments made to the Trustee for the Fund Fund in its own name or in the name of a change becomes effective. Any expenses shall consist of the proceeds from the letter nominee and to hold any security in bearer incurred by the Trustee as a result of any of of credit drawn upon by the Trustee in form or in book entry, or to combine the acts contemplated by this Section shall be accordance with the requirements of 40 CFR certificates representing such securities with paid as provided in Section 9. 261.151(k) and Section 4 of this Agreement. certificates of the same issue held by the Section 13. Instructions to the Trustee. All Section 6. Trustee Management. The Trustee in other fiduciary capacities, or to orders, requests, certifications of valid Trustee shall invest and reinvest the deposit or arrange for the deposit of such claims, and instructions to the Trustee shall principal and income, in accordance with securities in a qualified central depositary be in writing, signed by such persons as are general investment policies and guidelines even though, when so deposited, such designated in the attached Exhibit A or such which the Grantor may communicate in securities may be merged and held in bulk other designees as the Grantor may designate writing to the Trustee from time to time, in the name of the nominee of such by amendments to Exhibit A. The Trustee subject, however, to the provisions of this depositary with other securities deposited shall be fully protected in acting without Section. In investing, reinvesting, therein by another person, or to deposit or inquiry in accordance with the Grantor’s exchanging, selling, and managing the Fund, arrange for the deposit of any securities orders, requests, and instructions. The the Trustee shall discharge his duties with issued by the United States Government, or Trustee shall have the right to assume, in the respect to the trust fund solely in the interest any agency or instrumentality thereof, with a absence of written notice to the contrary, that of the beneficiary and with the care, skill, Federal Reserve Bank, but the books and no event constituting a change or a prudence, and diligence under the records of the Trustee shall at all times show termination of the authority of any person to circumstances then prevailing which persons that all such securities are part of the Fund; act on behalf of the Grantor or the EPA of prudence, acting in a like capacity and (d) To deposit any cash in the Fund in Regional Administrator hereunder has familiar with such matters, would use in the interest-bearing accounts maintained or occurred. The Trustee shall have no duty to conduct of an enterprise of a like character savings certificates issued by the Trustee, in act in the absence of such orders, requests, and with like aims; except that: its separate corporate capacity, or in any and instructions from the Grantor and/or (i) Securities or other obligations of the other banking institution affiliated with the EPA, except as provided for herein. Grantor, or any other owner or operator of the Trustee, to the extent insured by an agency Section 14. Amendment of Agreement. facilities, or any of their affiliates as defined of the Federal or State government; and This Agreement may be amended by an in the Investment Company Act of 1940, as (e) To compromise or otherwise adjust all instrument in writing executed by the amended, 15 U.S.C. 80a–2(a), shall not be claims in favor of or against the Fund. Grantor, the Trustee, and the EPA Regional acquired or held, unless they are securities or Section 9. Taxes and Expenses. All taxes of Administrator, or by the Trustee and the EPA other obligations of the Federal or a State government; any kind that may be assessed or levied Regional Administrator if the Grantor ceases (ii) The Trustee is authorized to invest the against or in respect of the Fund and all to exist. Fund in time or demand deposits of the brokerage commissions incurred by the Fund Section 15. Irrevocability and Termination. Trustee, to the extent insured by an agency shall be paid from the Fund. All other Subject to the right of the parties to amend of the Federal or a State government; and expenses incurred by the Trustee in this Agreement as provided in Section 14, (iii) The Trustee is authorized to hold cash connection with the administration of this this Trust shall be irrevocable and shall awaiting investment or distribution Trust, including fees for legal services continue until terminated at the written uninvested for a reasonable time and without rendered to the Trustee, the compensation of agreement of the Grantor, the Trustee, and liability for the payment of interest thereon. the Trustee to the extent not paid directly by the EPA Regional Administrator, or by the Section 7. Commingling and Investment. the Grantor, and all other proper charges and Trustee and the EPA Regional Administrator, The Trustee is expressly authorized in its disbursements to the Trustee shall be paid if the Grantor ceases to exist. Upon discretion: from the Fund. termination of the Trust, all remaining trust (a) To transfer from time to time any or all Section 10. Advice of Counsel. The Trustee property, less final trust administration of the assets of the Fund to any common, may from time to time consult with counsel, expenses, shall be paid to the Grantor. commingled, or collective trust fund created who may be counsel to the Grantor, with The Regional Administrator will agree to by the Trustee in which the Fund is eligible respect to any question arising as to the termination of the Trust when the owner or to participate, subject to all of the provisions construction of this Agreement or any action operator substitutes alternative financial thereof, to be commingled with the assets of to be taken hereunder. The Trustee shall be assurance as specified in this section. other trusts participating therein; and fully protected, to the extent permitted by Section 16. Immunity and indemnification. (b) To purchase shares in any investment law, in acting upon the advice of counsel. The Trustee shall not incur personal liability company registered under the Investment Section 11. Trustee Compensation. The of any nature in connection with any act or Company Act of 1940, 15 U.S.C. 80a–1 et Trustee shall be entitled to reasonable omission, made in good faith, in the seq., including one which may be created, compensation for its services as agreed upon administration of this Trust, or in carrying managed, underwritten, or to which in writing from time to time with the Grantor. out any directions by the Grantor and the investment advice is rendered or the shares Section 12. Successor Trustee. The Trustee EPA Regional Administrator issued in of which are sold by the Trustee. The Trustee may resign or the Grantor may replace the accordance with this Agreement. The Trustee may vote such shares in its discretion. Trustee, but such resignation or replacement shall be indemnified and saved harmless by Section 8. Express Powers of Trustee. shall not be effective until the Grantor has the Grantor or from the Trust Fund, or both, Without in any way limiting the powers and appointed a successor trustee and this from and against any personal liability to discretions conferred upon the Trustee by the successor accepts the appointment. The which the Trustee may be subjected by other provisions of this Agreement or by law, successor trustee shall have the same powers reason of any act or conduct in its official the Trustee is expressly authorized and and duties as those conferred upon the capacity, including all expenses reasonably empowered: Trustee hereunder. Upon the successor incurred in its defense in the event the (a) To sell, exchange, convey, transfer, or trustee’s acceptance of the appointment, the Grantor fails to provide such defense. otherwise dispose of any property held by it, Trustee shall assign, transfer, and pay over to Section 17. Choice of Law. This Agreement by public or private sale. No person dealing the successor trustee the funds and shall be administered, construed, and with the Trustee shall be bound to see to the properties then constituting the Fund. If for enforced according to the laws of the State application of the purchase money or to any reason the Grantor cannot or does not act of [enter name of State]. inquire into the validity or expediency of any in the event of the resignation of the Trustee, Section 18. Interpretation. As used in this such sale or other disposition; the Trustee may apply to a court of Agreement, words in the singular include the

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plural and words in the plural include the [Title] [Signature of Notary Public] singular. The descriptive headings for each Section of this Agreement shall not affect the [Seal] PART 270—EPA ADMINISTERED interpretation of the legal efficacy of this (2) The following is an example of the PERMIT PROGRAMS: THE Agreement. certification of acknowledgement which HAZARDOUS WASTE PERMIT In Witness Whereof the parties have must accompany the trust agreement for a PROGRAM caused this Agreement to be executed by standby trust fund as specified in section their respective officers duly authorized and 261.147(h) of this chapter. State requirements ■ 13. The authority citation for part 270 their corporate seals to be hereunto affixed may differ on the proper content of this continues to read as follows: and attested as of the date first above written. acknowledgement. The parties below certify that the wording of State of lllllllllllllllll Authority: 42 U.S.C. 6905, 6912, 6924, this Agreement is identical to the wording 6925, 6927, 6939 and 6974. County of llllllllllllllll specified in 40 CFR 261.151(m) as such regulations were constituted on the date first On this [date], before me personally came Subpart D—Changes to Permits above written. [owner or operator] to me known, who, being by me duly sworn, did depose and say that ■ [Signature of Grantor] 14. In § 270.42, Appendix I is she/he resides at [address], that she/he is amended to add a new A. 9 and A. 10 [Title] [title] of [corporation], the corporation to read as follows: Attest: described in and which executed the above instrument; that she/he knows the seal of § 270.42 Permit modification at the request [Title] said corporation; that the seal affixed to such of the permittee. [Seal] instrument is such corporate seal; that it was * * * * * so affixed by order of the Board of Directors [Signature of Trustee] of said corporation, and that she/he signed Appendix I to § 270.42—Classification Attest: her/ his name thereto by like order. of permit modification

Modifications Class

A. General Permit Provisions.

******* 9. Changes to remove permit conditions applicable to a unit excluded under the provisions of § 261.4...... 1 1 10. Changes in the expiration date of a permit issued to a facility at which all units are excluded under the provisions of § 261.4. 1 1

******* 1 Class 1 modifications requiring prior Agency approval.

[FR Doc. E8–24399 Filed 10–29–08; 8:45 am] BILLING CODE 6560–50–P

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Part III

Department of Homeland Security Transportation Security Administration

49 CFR Parts 1515, 1520, et al. Large Aircraft Security Program, Other Aircraft Operator Security Program, and Airport Operator Security Program; Proposed Rule

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DEPARTMENT OF HOMELAND this rulemaking, to the Federal Docket one means. If you submit comments by SECURITY Management System (FDMS), a mail or delivery, submit them in an government-wide, electronic docket unbound format, no larger than 8.5 by Transportation Security Administration management system, using any one of 11 inches, suitable for copying and the following methods: electronic filing. 49 CFR Parts 1515, 1520, 1522, 1540, Electronically: You may submit If you want TSA to acknowledge 1542, 1544, and 1550 comments through the Federal receipt of comments submitted by mail, [Docket No. TSA–2008–0021] eRulemaking portal at http:// include with your comments a self- www.regulations.gov. Follow the online addressed, stamped postcard on which RIN 1652–AA53 instructions for submitting comments. the docket number appears. We will Mail, In Person, or Fax: Address, stamp the date on the postcard and mail Large Aircraft Security Program, Other hand-deliver, or fax your written it to you. Aircraft Operator Security Program, comments to the Docket Management TSA will file in the public docket all and Airport Operator Security Program Facility, U.S. Department of comments received by TSA, except for AGENCY: Transportation Security Transportation, 1200 New Jersey comments containing confidential Administration, DHS. Avenue, SE., West Building Ground information and Sensitive Security 1 ACTION: Notice of proposed rulemaking. Floor, Room W12–140, Washington, DC Information (SSI). TSA will consider 20590–0001; Fax 202–493–2251. The all comments received on or before the SUMMARY: The Transportation Security Department of Transportation (DOT), closing date for comments and will Administration (TSA) proposes to which maintains and processes TSA’s consider comments filed late to the amend current aviation transportation official regulatory dockets, will scan the extent practicable. The docket is security regulations to enhance the submission and post it to FDMS. available for public inspection before security of general aviation by See SUPPLEMENTARY INFORMATION for and after the comment closing date. expanding the scope of current format and other information about Handling of Confidential or Proprietary requirements and by adding new comment submissions. Information and Sensitive Security requirements for certain large aircraft FOR FURTHER INFORMATION CONTACT: For Information (SSI) Submitted in Public operators and airports serving those program questions: Erik Jensen, Branch Comments aircraft. TSA is proposing to require that Chief—Policy, Plans & Stakeholder all aircraft operations, including Affairs, Office of General Aviation, Do not submit comments that include corporate and private operations, with TSNM, TSA–28, Transportation trade secrets, confidential commercial, aircraft with a maximum certificated Security Administration, 601 South or financial information, or SSI to the takeoff weight (MTOW) above 12,500 12th Street, Arlington, VA 22202–4220; public regulatory docket. Please submit pounds (‘‘large aircraft’’) adopt a large telephone (571) 227–2401; facsimile such comments separately from other aircraft security program (LASP). This (571) 227–2920; e-mail [email protected]. comments on the rulemaking. security program would be based on the For questions regarding Sensitive Comments containing this type of current security program that applies to Security Information (SSI): Andrew information should be appropriately operators providing scheduled or Colsky, Director, SSI Office, Office of marked as containing such information charter services. the Special Counselor (OSC), TSA–31, and submitted by mail to the address TSA also proposes to require large Transportation Security Administration, listed in FOR FURTHER INFORMATION aircraft operators to contract with TSA- 601 South 12th Street, Arlington, VA CONTACT section. approved auditors to conduct audits of 22202–4220; telephone (571) 227–3513; Upon receipt of such comments, TSA the operators’ compliance with their facsimile (571) 227–2945; e-mail will not place the comments in the security programs and with TSA- [email protected]. public docket and will handle them in approved watch-list service providers to accordance with applicable safeguards SUPPLEMENTARY INFORMATION: verify that their passengers are not on and restrictions on access. TSA will the No Fly and/or Selectee portions of Comments Invited hold them in a separate file to which the public does not have access, and place the consolidated terrorist watch-list TSA invites interested persons to a note in the public docket that TSA has maintained by the Federal Government. participate in this rulemaking by received such materials from the This proposed rule describes the submitting written comments, data, or commenter. If TSA receives a request to process and criteria under which views. We also invite comments relating examine or copy this information, TSA auditors and companies that perform to the economic, environmental, energy, will treat it as any other request under watch-list matching would obtain TSA or federalism impacts that might result the Freedom of Information Act (FOIA) approval. from this rulemaking action. See (5 U.S.C. 552) and the Department of TSA also proposes further security ADDRESSES above for information on Homeland Security’s (DHS) FOIA measures for large aircraft operators in where to submit comments. all-cargo operations and for operators of With each comment, please identify regulation found in 6 CFR part 5. passenger aircraft with a MTOW of over the docket number at the beginning of Reviewing Comments in the Docket 45,500 kilograms (100,309.3 pounds), your comments. TSA encourages Please be aware that anyone is able to operated for compensation or hire. TSA commenters to provide their names and also proposes to require that certain search the electronic form of all addresses. The most helpful comments comments received into any of our airports that serve large aircraft adopt reference a specific portion of the security programs and amend the rulemaking, explain the reason for any security program for full program and 1 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ is recommended change, and include information obtained or developed in the conduct full all-cargo operators. supporting data. You may submit of security activities, the disclosure of which would DATES: Submit comments by December comments and material electronically, constitute an unwarranted invasion of privacy, 29, 2008. reveal trade secrets or privileged or confidential in person, by mail, or fax as provided information, or be detrimental to the security of ADDRESSES: You may submit comments, under ADDRESSES, but please submit transportation. The protection of SSI is governed by identified by the TSA docket number to your comments and material by only 49 CFR part 1520.

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dockets by the name of the individual IT—Information Technology offering transportation to the public in submitting the comment (or signing the LASP—Large Aircraft Security Program general.2 comment, if submitted on behalf of an LEO—Law Enforcement Officer To date, the Federal Government’s association, business, labor union, etc.). MTOW—Maximum Certificated Take-Off primary focus with regard to aviation You may review the applicable Privacy Weight security has been on air carriers and Act Statement published in the Federal NIST—National Institute of Standards and commercial operators that offer Register on April 11, 2000 (65 FR Technology transportation for compensation or hire 19477), or you may visit http:// PPSSP—Partial Program Standard Security to the public. TSA requires these Program docketinfo.gov. carriers and operators to develop and PCSSP—Private Charter Standard Security You may review TSA’s electronic operate under a particular security Program public docket on the Internet at http:// program depending on the precise SSI—Sensitive Security Information nature of their operations. A security www.regulations.gov. In addition, DOT’s STA—Security Threat Assessment program is a set of security procedures Docket Management Facility provides a TSC—Terrorist Screening Center physical facility, staff, equipment, and TSA—Transportation Security that will meet the requirements of assistance to the public. To obtain Administration applicable TSA regulations. For assistance or to review comments in TWIC—Transportation Worker Identification example, a security program would TSA’s public docket, you may visit this Credential include specific measures to screen facility between 9 a.m. 5 p.m., Monday TFSSP—Twelve-Five Standard Security cargo, to transport Federal Air Marshals, through Friday, excluding legal Program to use personnel identification systems, holidays, or call (202) 366–9826. This and to provide training to employees, if Outline of the Notice of Proposed the operator were subject to those docket operations facility is located in Rulemaking the West Building Ground Floor, Room requirements in TSA’s regulation. W12–140 at 1200 New Jersey Avenue, I. Introduction With few exceptions, TSA does not A. Current Standard Security Programs SE., Washington, DC 20590. currently require security programs for B. Current Security Programs for Large GA aircraft operators. As vulnerabilities Availability of Rulemaking Document Aircraft and risks associated with air carriers C. Implementation and Compliance You can get an electronic copy using and commercial operators have been Schedule reduced or mitigated, terrorists may the Internet by— II. Major Proposed Elements in This NPRM (1) Searching the electronic Federal view general aviation aircraft as more A. Major Requirements in the Proposed vulnerable and thus attractive targets. If Docket Management System (FDMS) Large Aircraft Security Program hijacked and used as a missile, these Web page at http://www.regulations.gov; B. Proposed Requirements for Certain (2) Accessing the Government Airports aircraft would be capable of inflicting Printing Office’s web page at http:// C. Passenger Checking Against the Watch- significant damage. www.gpoaccess.gov/fr/index.html; or list The Federal Aviation (3) Visiting TSA’s Security D. Third-Party Audits for Large Aircraft Administration’s (FAA) long-standing Regulations web page at http:// Operators definition of ‘‘large aircraft’’ is an www.tsa.gov and accessing the link for E. Proposed Amendments to the Full aircraft with a maximum certificated ‘‘Research Center’’ at the top of the page. Program and the Full All-Cargo Program takeoff weight (MTOW) of over 12,500 In addition, copies are available by III. Section-by-Section Analysis pounds. See 14 CFR 1.1. Based on the writing or calling the individual in the IV. Regulatory Requirements aviation industry’s familiarity with this FOR FURTHER INFORMATION CONTACT A. Paperwork Reduction Act definition and TSA’s belief that aircraft section. Make sure to identify the docket B. Regulatory Impact Analyses of this size pose a potential risk, TSA is number of this rulemaking. 1. Regulatory Evaluation Summary proposing to require security programs 2. Executive Order 12866 Assessment for all operators of aircraft—GA or Abbreviations and Terms Used in This 3. Regulatory Flexibility Act Assessment otherwise—that have a MTOW of over Document 4. International Trade Impact Assessment 12,500 pounds, excluding certain 5. Unfunded Mandates Assessment governmental operations (collectively, AICPA—American Institute of Certified C. Executive Order 13132, Federalism Public Accountants ‘‘large aircraft operators’’).3 D. Environmental Analysis ALJ—Administrative Law Judge Currently, TSA requires many large E. Energy Impact Analysis AOSC—Aircraft Operator Security aircraft operators that are air carriers or List of Subjects Coordinator commercial operators to implement The Proposed Amendments AOSSP—Aircraft Operator Standard Security security programs such as the Twelve- Program I. Introduction Five Security Program or the Private ATSA—Aviation and Transportation Charter Security Program.4 TSA is Security Act The aviation industry is composed of CFR—Code of Federal Regulations thousands of operators that conduct 2 CHRC—Criminal History Records Check There is no statutory or regulatory definition of different types of operations in ‘‘general aviation.’’ For the purposes of this NPRM, CJIS—Criminal Justice Information Services numerous different types of aircraft. we use the term to refer to aircraft operations that CBP—U.S. Customs and Border Protection are not air carriers or commercial, governmental or DHS—U.S. Department of Homeland Many aircraft operators are air carriers military operators. Security or commercial operators that offer 3 In general, aircraft that weigh over 12,500 FAMs—Federal Air Marshals transportation to the public for pounds MTOW are those aircraft equipped with FAA—Federal Aviation Administration compensation or hire. Others are general twin turboprop or turbojet engines. Typically FACAOSSP—Full All-Cargo Aircraft aviation (GA) operators that do not offer corporate and charter aircraft have a seating configuration for 6–8 passengers, while similar Operator Standard Security Program transportation to the public. These FBI—Federal Bureau of Investigation aircraft used in scheduled passenger service would operators often are corporate or private likely have 18 or more seats. FISMA—Federal Information Security owners of aircraft that operate their 4 Although aircraft operators that are subject to Management Act aircraft for their own use or provide the full program under 49 CFR 1544.101(a), or the GA—General Aviation full all-cargo program under § 1544.101(h), operate HME—Hazardous Materials Endorsement transportation for compensation or hire large aircraft, TSA does not include them in IPA—Independent Public Accounting firm only to certain customers without Continued

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proposing to expand this requirement to • Conduct watch-list matching of with 31 or more, but 60 or fewer include previously unregulated large their passengers through TSA-approved passenger seats that does not enplane aircraft operators—namely, GA with a watch-list matching service providers. from or deplane into a sterile area. The MTOW of over 12,500 pounds. Doing so • Undergo a biennial audit of their standard security program for private will expand the large aircraft operator compliance by a TSA-approved third charters is the private charter standard population required to have a TSA- party auditor. security program.10 For other scheduled approved security program to • Comply with the current cargo or charter flights, or all-cargo approximately 10,000 operators from requirements for the twelve-five all- operations, in an aircraft with a MTOW the approximately 650 operators today. cargo program if conducting an all-cargo of over 12,500 pounds, the standard In addition, TSA is proposing to operation. security program is the twelve-five establish a single large aircraft security • For aircraft with a MTOW of over standard security program.11 program (LASP) to replace the various 45,500 kilograms operated for The full program, the full all-cargo security programs used by currently compensation or hire, screen passengers program, the partial program, the regulated large aircraft operators, such and their accessible property. private charter program, and the twelve- as air carriers and commercial operators. • Check property on board for five program aircraft operators all are It is TSA’s view that the proposed rule unauthorized persons. covered under TSA regulations in 49 would enhance security significantly. In addition, TSA is proposing CFR part 1544. They all must hold FAA TSA recognizes that this would amendments to its regulations regarding air carrier operating certificates or FAA greatly increase the number and type of airport security programs.5 TSA is operating certificates in accordance with proposing to require additional airports the Federal Aviation Administration operators subject to a TSA-approved 12 security program. TSA invites to adopt security programs, because (FAA) regulations in 14 CFR part 119. comments on the weight threshold of these airports serve aircraft operators They all engage in interstate common that either currently must carry out a carriage or intrastate common aircraft covered by this proposed rule. 13 For instance, parties may choose to security program or would be required carriage. TSA has also required certain comment on whether the security goals to have a security program under the operators not engaged in common discussed herein would be met if proposed rule. TSA proposes to require carriage to hold and carry out security security programs were required for GA the following airports to adopt a programs. Operators of aircraft with a aircraft only over some greater weight security program: MTOW of over 12,500 pounds must • threshold. For example, we explain Reliever airports, which perform conduct operations in accordance with the function of relieving congestion at the FAA rules in 14 CFR part 125 (part below that aircraft over 45,500 kg 14 (100,309.3 pounds) MTOW are currently commercial service airports and provide 125 operators). By notice published in covered by the ‘‘private charter’’ more GA access to the overall the Federal Register, TSA required security program, which includes community. these operators to carry out the twelve- • security measures in addition to those Airports that regularly serve large five standard security program for outlined in the ‘‘twelve-five’’ security aircraft with scheduled or public charter operations in aircraft over 12,500 program. Since incidents involving service. pounds but not over 45,500 kg, and to heavier aircraft have the potential to carry out the private charter standard A. Current Aircraft Operator Security security program for operations in lead to greater damages and loss of life Programs 15 under one of the scenarios studied in aircraft over 45,500 kg. These part 125 our regulatory impact analysis, we TSA requires security programs for air operators conduct operations when specifically solicit comment on whether carriers and commercial operators that common carriage is not involved. They this would be a logical alternative require security measures for may conduct operations for weight threshold to consider for the individuals, property, and cargo aboard compensation or hire, however, and aircraft. Currently TSA requires security they may also conduct operations not increased security requirements for 16 general aviation. Although TSA has programs for full program, full all-cargo, for compensation or hire. Finally, all civil aircraft must operate concluded in this NPRM that the partial, private charter, and twelve-five under FAA regulations 14 CFR part 91, security benefits of the lower weight program operators. For full program 6 Air Traffic and General Operating Rules. threshold of 12,500 lbs are justified by operators, the standard security 7 These operators, when not also subject the risk and therefore justify the program is called an aircraft operator to another FAA regulation, such as part additional cost of the lower threshold, standard security program (AOSSP). For 8 119 or part 125, are often referred to in we welcome commenters’ views on that the full all-cargo program operators the industry as part 91 operators. TSA topic, as well as on the cost-benefit operating all-cargo aircraft over 45,500 generally has not required such impact of alternate weight thresholds. kg MTOW, the standard security program is the full all-cargo aircraft operators to carry out security measures. Below is a list of the major operator standard security program The main objectives of the proposed requirements GA aircraft operators (FACAOSSP). The partial program 9 rule are: (1) To merge the partial, private would be required to adopt under the applies to scheduled passenger or charter and twelve-five programs into a LASP; a more detailed discussion of the public charter operations in an aircraft large aircraft security program and to LASP and the individual requirements is in sections II and III of this preamble: 5 The regulations are in 49 CFR 1542.101. 10 49 CFR 1544.101(f). • Ensure that their flight crew 6 49 CFR 1544.101(a). 11 49 CFR 1544.101(d). members have undergone a fingerprint- 7 A standard security program is a security 12 49 CFR 1544.1. 13 based criminal history records check program issued by TSA that serves as the baseline 49 U.S.C. 40102 and 14 CFR 119.21. for a particular type of operator. An aircraft 14 14 CFR 119.23. (CHRC). operator’s security program consists of the 15 69 FR 61516 (Oct. 19, 2004). appropriate standard security program, together 16 14 CFR 119.3 and 119.23. After TSA adopted references to operators of large aircraft and large with any amendments and alternative procedures to the full all-cargo program, it required part 125 aircraft operators for purposes of this NPRM. Full the security program, if approved by TSA. operators in all-cargo operations using aircraft over program operators are generally known as the 8 49 CFR 1544.101(h). 45,500 kg to have and carry out a full all-cargo commercial airlines. 9 49 CFR 1544.101(b). program. See 71 FR 30478 (May 26, 2006).

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expand its scope to include general individuals. Corporate aviation, with a program that would apply to all large aviation operators using aircraft with a population of approximately 10,000 aircraft operators (except certain MTOW of over 12,500 pounds; and (2) operators flying 15,000 aircraft, is government operations) and would to enhance the security of these largely unregulated for security replace the current security programs operations. purposes. Yet many of these aircraft are for partial program operators, twelve- of the same size and weight of the air five program operators, and private B. Current Security Programs for Large carriers and commercial operators that Aircraft charter operators. The LASP would TSA regulates, and they could be used establish a consistent set of regulations Large aircraft are operated by a effectively to commit a terrorist act. for air carriers and commercial diverse group of air carriers, commercial Complicating the situation is the fact operators, as well as GA operators using operators, and GA operators. As stated that many GA operators have the large aircraft. Indeed, LASP would above, to date, TSA has mandated authorization to function under several provide large aircraft operators not security programs for the air carrier and different FAA regulations and operating covered under the full program, or the commercial operator segments of the certificates, which may require different full all-cargo security program, with one aviation industry including scheduled TSA security programs or no TSA set of regulations that would form the passenger operations, private charters, security program at all. core of their security programs distinct public charters, and all-cargo operations TSA considered developing a new to their operational and security needs. in large aircraft through the twelve-five regulatory program to be used solely on program, the partial program, and the GA aircraft and their potential security Table 1 below identifies the different private charter program. With limited risks. This decision would have created types of large aircraft operators that exceptions, TSA has not required yet another security program applicable currently are required to have a security security programs for large aircraft in to large aircraft operators. Instead of five program and the major security general aviation. separate security programs that would requirements for these operators. It also Large GA aircraft are most often apply to large aircraft operators identifies the types of operators that operated by corporate entities, though depending on the type of service they would be subject to the new proposed some large GA aircraft are operated by provide, TSA is proposing one security LASP.

TABLE 1—STANDARD SECURITY PROGRAMS APPLICABLE TO AIRCRAFT OPERATORS

An aircraft operator Would be using this that operates this Must have this Currently using this standard security type of service, other In this size aircraft And program # standard security program under the than all-cargo program NPRM

Scheduled pas- 61 or more pas- ...... Full Program AOSSP ...... No change. senger or public senger seats. § 1544.101(a)(1). charter pas- senger *. Scheduled pas- 60 or fewer pas- It enplanes from, or deplanes Full Program AOSSP ...... No change. senger or public senger seats. into, an existing sterile area. § 1544.101(a)(2). charter pas- senger *. Scheduled pas- 31 or more but 60 It does not enplane from, or Partial Program Partial Program Proposed senger or public or fewer pas- deplane into, an existing § 1544.101(b)(1). Standard Security LASSP **** with charter pas- senger seats. sterile area. Program (PPSSP). component for senger *. aircraft greater than 45,500 kg (if applicable). Scheduled, public More than 12,500 It does not enplane from, or Twelve-Five Pro- Twelve-Five Stand- Proposed LASSP. charter, or private pounds MTOW. deplane into, an existing gram ard Security Pro- charter; pas- sterile area, and it is not § 1544.101(d). gram (TFSSP). senger *. under a Full Program or a Partial Program. Private charter * ...... Any size ...... It enplanes from, or deplanes Private Charter Pro- Private Charter Proposed LASSP into, an existing sterile area. gram Standard Security with component § 1544.101(f)(1)(i). Program for aircraft greater (PCSSP). than 45,500 kg (if applicable) and alternative proce- dures for enplan- ing from or deplaning into an existing sterile area. Private charter * ...... More than 45,500 It does not enplane from, or Private Charter Pro- PCSSP ...... Proposed LASSP kg, OR 61 or deplane into, an existing gram with component more passenger sterile area, and it is not a § 1544.101(f)(1)(ii). for aircraft greater seats. government charter. than 45,500 kg. Under an FAA certifi- More than 45,500 It is carrying passengers or § 1550.7; (69 FR PCSSP ...... Proposed LASSP cate issued under kg MTOW. property for compensation 61516, 10/19/ with component 14 CFR part 125 **. or hire and is not under an- 2004). for aircraft greater other TSA security program. than 45,500 kg or 61 or more seats.

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TABLE 1—STANDARD SECURITY PROGRAMS APPLICABLE TO AIRCRAFT OPERATORS—Continued

An aircraft operator Would be using this that operates this Must have this Currently using this standard security type of service, other In this size aircraft And program # standard security program under the than all-cargo program NPRM

Under an FAA certifi- 61 or more pas- It is carrying passengers or § 1550.7; (69 FR PCSSP ...... Proposed LASSP cate issued under senger seats. property for compensation 61516, 10/19/ with component 14 CFR part 125 **. or hire and is not under an- 2004). for aircraft greater other TSA security program. than 45,500 kg or 61 or more seats. Under an FAA certifi- More than 45,500 It is not carrying passengers § 1550.7; (69 FR PCSSP ...... Proposed LASSP. cate issued under kg MTOW. or property for compensa- 61516, 10/19/ 14 CFR part 125 **. tion or hire and not under 2004). another TSA security pro- gram. Under an FAA certifi- 61 or more pas- It is not carrying passengers § 1550.7; (69 FR PCSSP ...... Proposed LASSP. cate issued under senger seats. or property for compensa- 61516, 10/19/ 14 CFR part 125 **. tion or hire and not under 2004). another TSA security pro- gram. Under an FAA certifi- More than 12,500 It is not under another TSA § 1550.7 ...... TFSSP ...... Proposed LASSP. cate issued under pounds MTOW. security program. 14 CFR part 125 **. Operating under 14 More than 12,500 It enplanes from, or deplanes General Aviation No standard pro- Proposed LASSP CFR part 91 pounds. into, an existing sterile area. Operations using gram. with alternative only **. a sterile area procedures for § 1550.5. enplaning from or deplaning into an existing sterile area. Operating under 14 12,500 pounds or It enplanes from, or deplanes General Aviation No standard pro- No change. CFR part 91 less. into, an existing sterile area. Operations using gram. only **. a sterile area § 1550.5. Operating under 14 More than 12,500 It is not under another TSA Not required to Not required to Proposed LASSP. CFR part 91 pounds. security program, and does have a security have a security only **. not enplane from or deplane program. program. to an existing sterile area. Operating under 14 12,500 pounds or It is not under another TSA Not required to Not required to No change. CFR part 91 less. security program, and does have a security have a security only **. not enplane from or deplane program. program. to an existing sterile area. Passenger oper- Any size ...... It is not under a Full Program DCA Access Pro- DCA Access Stand- No change. ations into and out gram part 1562. ard Security Pro- of Ronald Reagan gram (DASSP). Washington Na- tional Airport (DCA) ***. Other operations ** .. Any size ...... Is not under any other re- Limited program No standard pro- No change. quired program but aircraft § 1544.101(g). gram. operator requests a security program. * These aircraft operators are considered air carriers or commercial operators. ** These aircraft operators are considered general aviation. *** May be air carriers, commercial operators, or general aviation operators. **** After issuing the LASP final rule, TSA would develop and issue a standard security program to implement the LASP called the Large Air- craft Standard Security Program (LASSP). # Cites in this column are to 49 CFR.

An all-cargo aircraft Would be using this operator that Must have this Currently using this standard security operates this type of In this size aircraft And program # standard program under the service: ## security program NPRM

All-cargo ...... Greater than 45,500 Operating under a Full All-Cargo Pro- Full All-Cargo Aircraft No change. kg, OR 61 or more FAA certificate gram. Operator Standard passenger seats. issued under 14 § 1544.101(h) ...... Security Program CFR part 119 or (FACAOSSP). 125. All-cargo ...... Over 12,500 lbs but ...... Twelve-Five Program TFSSP in all-cargo LASSP with all-cargo not over 45,500 kg. in all-cargo oper- operations. component. ations. § 1544.101(d) ......

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An all-cargo aircraft Would be using this operator that Must have this Currently using this standard security operates this type of In this size aircraft And program # standard program under the service: ## security program NPRM

All-cargo under an More than 45,500 kg ...... FACAOSSP ...... FACAOSSP + ...... No change. FAA certificate issued under 14 CFR part 125. # Cites in this column are to 49 CFR. ## All-cargo operations carry cargo and authorized persons, but no passengers.

In developing the proposed rule, TSA would be affected by the final rule, what determined by where the aircraft is analyzed the existing security programs actions the aircraft operators and airport based. For large aircraft operators that to determine which security measures operators would be required to take to have multiple bases for their aircraft, the have been effective and would be comply with the rule, and the time phase would be determined by the appropriate for inclusion in the period within which the aircraft location of the large aircraft operator’s proposed LASP. The LASP would operator and airport operators would be headquarters. We seek comment on this combine the essential elements of some required to submit their applications phased approach and on determining of the current security programs into and other supporting documents. At which phase would be applicable to one consolidated and comprehensive that time, TSA would provide the each large aircraft operator based on the program. process, procedures, and necessary location of the aircraft or headquarters. forms to the aircraft operators and In this rulemaking, TSA is also II. Major Elements in This NPRM proposing to reorganize certain existing airport operators to enable the operators regulations in 49 CFR part 1544. to apply for the large aircraft program, A. Major Requirements in the Proposed Specifically, TSA has clarified the or the airport partial program, via a Large Aircraft Security Program meaning of the rule, simplified the text, secure web-board. TSA’s implementation schedule To provide greater consistency across and harmonized regulations between all large aircraft operations, the the different industry populations. This would divide the country into five areas, taking into account which areas of proposed regulation would create the reorganization may affect the currently Large Aircraft Standard Security regulated population in addition to the the country contain the largest affected populations of aircraft operators and Program (LASSP) to replace the current proposed newly regulated population. security programs for partial program TSA is also proposing to reorganize airport operators. TSA anticipates six phases of compliance, targeting operators, twelve-five program certain sections in 49 CFR part 1544 to operators, and private charter program account for the proposed addition of the approximately 20 percent of the large aircraft operator and airport operators operators. The major requirements in LASP. The reorganization would not this proposed rule are based on the make any substantive changes to the population that currently do not hold security programs in each of the first requirements in the Twelve-Five and regulations. five phases. The sixth and final phase the Private Charter Security Programs. C. Implementation and Compliance would include aircraft operators that The proposed LASP provides a core Schedule currently hold a security program.17 The security program for all large aircraft, following timeline for compliance irrespective of the FAA regulations Based on industry data, TSA would start upon the effective date of under which they operate, whether they anticipates that this proposed rule the final rule, which would be 60 days are air carriers, commercial operators, or would require approximately 10,000 after publication of the final rule in the GA. Beyond the core requirements for aircraft operators and 315 airport Federal Register: large aircraft with a MTOW of over operators, most of whom are not Phase 1, Mid-Atlantic region—months 12,500 pounds, the proposed LASP currently required to do so, to would include a component for large implement security programs. Due to 1–4 after the effective date of the final rule. aircraft with a MTOW of over 45,500 the large number of aircraft operators Phase 2, North-East region—months 5– kilograms operated for compensation or and airport operators that would be 8 after the effective date of the final hire. The following is a summary of the required to implement security rule. major security measures in the proposed programs, TSA proposes using a phased Phase 3, Southern region—months 9–12 LASP. approach in the implementation of the after the effective date of the final 1. Proposed Core Requirements of the proposed rule. The proposed rule. compliance schedule would allow for Large Aircraft Security Program in Phase 4, Mid-West region—months 13– § 1544.103(e) proper and adequate support and 16 after the effective date of the final staffing within TSA and also would rule. In TSA’s experience, the current allow sufficient time for compliance on Phase 5, Western region—months 17–20 Twelve-Five Security Program has the part of the newly regulated aircraft after the effective date of the final proven to be effective in safeguarding operators and airport operators. rule. the operations of scheduled and charter Following issuance of a final rule, TSA Phase 6, Existing security program operations in aircraft with MTOW of would implement a communication holders—months 21–24 after the over 12,500 pounds without unduly plan commencing with a wide effective date of the final rule. burdening the aircraft operators. distribution of press releases, web-site The phase in which a large aircraft Accordingly, TSA would base the core postings, and industry association operator would fall would be requirements of the LASP on the briefings and meetings. These briefings Twelve-Five Security Program. The and meetings would communicate, 17 There are no airport operators that currently LASP, however, would include educate, and confirm which operators hold a partial program. additional requirements that would

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strengthen the existing security Watch-List Matching of Passengers unauthorized persons and that the measures. Below is a discussion of the The Federal Government maintains a watch-list would be misused and/or major requirements of the LASP. terrorist watch-list. The watch-list, compromised. Since it is not possible to bring the watch-list matching function Security Threat Assessment With which includes the No Fly List and the into the federal government in one step, Criminal History Records Check for Selectee List components of the TSA is considering ways to provide this Flight Crew Members Terrorist Screening Database maintained by the Terrorist Screening Center (TSC), list to a more limited set of holders Under the current security programs is the basis for the pre-flight passenger while TSA considers the most effective that apply to large aircraft operators, watch-list matching currently method to assume the watch-list TSA requires aircraft operators to ensure conducted by certain aircraft operators. matching responsibility from all aircraft that their flight crew members have Watch-list matching of passengers on operators required to conduct watch-list undergone a fingerprint-based criminal large aircraft is an important security matching through the Secure Flight history records check (CHRC). TSA measure, because it can prevent program. views this as an important security individuals who are believed to pose a TSA recognizes that the Secure Flight measure that should apply to flight crew risk from boarding a large aircraft and, program has not yet achieved the members of all large aircraft. Pilots are potentially, gaining control of the operational capability to conduct watch- in control of the aircraft and other flight aircraft, to use it as a weapon. TSA list matching for general aviation, nor is crew members are in the cockpit and studies have shown that significant loss such capability anticipated by the time could obtain control of the aircraft. of lives and other damage could result TSA would require large general Consequently, TSA proposes to require from such an incident. Matching aviation and charter aircraft operators to that large aircraft operators ensure that passenger information against the No implement the LASP. Therefore, TSA is all of their flight crew members undergo Fly List component of the terrorist proposing a solution for watch-list a security threat assessment (STA) that watch-list would identify individuals matching in this NPRM for the time includes a CHRC and other analyses, who, if permitted to board aircraft, may period in which the Secure Flight including checks of appropriate terrorist pose a threat to the aircraft and/or program does not have the capability to watch-lists and other databases. The list persons on board. Matching passenger conduct watch-list matching for large of disqualifying crimes of the CHRC information against the Selectee List aircraft passengers. If TSA is able to would be the same as for the full and component of the terrorist watch-list develop the capability for the Secure full all-cargo operations. 49 CFR also would identify individuals who Flight program to conduct watch-list 1544.229 and 1544.230. matching for large aircraft passengers, After TSA adopted the Twelve-Five may be potential threats and would allow TSA and/or the aircraft operators TSA may amend the scope of the Secure Security Program requirements, it Flight program to include large aircraft became clear that most operators of that to take appropriate action, if necessary. Under the current watch-list matching operators in the final rule for this size were not well-prepared to conduct process, TSA provides the No Fly and NPRM.19 adjudication of the CHRCs. Accordingly, Selectee List to twelve-five, partial b. Watch-list Service Providers. Under while the twelve-five operators have program, and private charter aircraft the proposed rule, TSA would not been ensuring that their flight crew operators to enable them to conduct the provide the No Fly List to large aircraft members submit their fingerprints, TSA watch-list matching. When an aircraft operators, which means that TSA would has been adjudicating the criminal operator receives passenger information no longer provide the watch-list to the histories; that is, TSA reviews the that is similar to, or the same as, a name approximately 800 aircraft operators history to determine whether the flight on the No Fly or Selectee List, the now receiving it under the twelve-five crew member has a disqualifying aircraft operator is required to notify program, partial program and private criminal offense. TSA is proposing to law enforcement personnel and TSA in charter operators and would not begin codify that practice and to charge a fee order to determine whether that providing it to the additional for the services. See the section-by- passenger is in fact the individual listed approximately 9,300 general aviation section analysis for proposed part 1544, on the No Fly or Selectee List. The operators that would be under the subpart G. aircraft operator may not board a LASP. Instead, TSA would provide the TSA recognizes that a flight crew passenger until TSA has instructed the watch-list to watch-list service member may be contracted to work for aircraft operator that the passenger is providers approved by TSA. Large more than one large aircraft operator. clear to board the aircraft. aircraft operators would transmit their We seek comment on whether the STA a. Removing watch-list from aircraft passenger information to these watch- should be transferable so that the flight operators. Per Homeland Security list service providers, who would crew member would need to undergo Presidential Directive-16/National conduct the automated watch-list only one STA every five years, Security Presidential Directive-47, matching function and transmit the regardless of the number of employers section 4012(a) of the Intelligence results back to the large aircraft the flight crew members may have Reform and Terrorism Prevention Act,18 operators. within the five-year period. Potential and in support of 9/11 commission TSA is proposing this approach for employers would check the status of the recommendations, the U.S. government two reasons. First, this would greatly flight crew member’s STA through a is in the process of assuming control reduce the number of entities receiving mechanism required by TSA. over watch-list matching in the aviation the watch-list, thus reducing the risk TSA also is considering ways to environment. TSA is concerned that that it would be disseminated to positively identify pilots conducting providing the watch-list to unauthorized persons or misused. both domestic and international flight approximately 10,000 large aircraft Second, having a small number of operations and effectively link them to operators as part of the LASP program watch-list service providers conduct the aircraft they are operating. We seek would increase the risk that the watch- watch-list matching in accordance with comment and recommended methods list would be disseminated to for positively identifying pilots and 19 For example, proposed § 1560.1(a) may be effectively linking them to the aircraft 18 Public Law 108-458, 118 Stat. 3638, Dec. 17, amended to include large aircraft operators. See they are operating. 2004; 49 U.S.C. 44903 (j)(2). Secure Flight NPRM, 72 FR at 48387.

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TSA standards would result in greater Advance Passenger Information System of that individual against those consistency in the application of the (APIS) requirements and proposed individuals on the watch-list.23 The full watch-list matching function. These eAPIS requirements apply to both U.S.- name is the primary attribute used to watch-list service providers will have operated and foreign-operated aircraft. conduct watch-list matching and would been determined to have appropriate To avoid process redundancies, DHS be required for all passengers. Partial security, including Information would require operators and pilots of names would increase the likelihood of Technology (IT) security and private large aircraft that would be false positive matches, because partial performance capabilities, to perform subject to this TSA proposed rule and names are more likely to match a this important function in the interim. CBP’s eAPIS private aircraft regulations number of different entries on the TSA invites comments on the role that to submit their passenger manifest to watch-list. As a result, this proposed watch-list service providers may CBP only and not to watch-list service rule would require individuals to continue to have if the responsibility for providers. TSA would deem U.S. provide their full names and would watch-list matching shifts to the U.S. operators of private large aircraft to be prohibit aircraft operators from boarding Government in the future. For example, in compliance with the proposed rule’s a passenger who does not provide a full would watch-list service providers offer requirements to submit passenger name. Date of birth and gender would their services to consolidate passenger information for watch-list matching for be optional for the passenger. This information from large aircraft operators international flights if the pilot submits proposed requirement on passengers to and to transmit the passenger passenger information required under provide the full name is consistent with information to Secure Flight? the proposed eAPIS regulations. See TSA’s proposal in the Secure Flight While the watch-list service providers proposed 19 CFR 122.22. NPRM. In the Secure Flight NPRM, TSA would perform the watch-list matching The TSA and CBP screening processes proposes to require passengers on function, large aircraft operators would work in tandem for flights departing commercial flights operated by full have several responsibilities under the foreign ports destined for the United program operators and foreign air proposed rule. Large aircraft operators States and flights departing the United carriers to provide their full name when would be responsible for all costs States for foreign destinations. If CBP they make a reservation for a flight. See associated with watch-list matching, grants the pilot landing rights under 19 proposed § 1540.107(b) in the Secure including any fee charged by the watch- CFR 122.49a, 122.75a, or 122.22, TSA Flight NPRM, 72 FR at 48386. list service providers. would allow the large aircraft operator Many names do not indicate gender, c. Compliance with CBP programs. to permit all passengers, for whom the because they can be used by either Large aircraft operators would not be aircraft operator submitted advance gender. Additionally, names not derived required to transmit passenger passenger information to CBP, to board from the Latin alphabet, when information to their watch-list service the aircraft. If CBP identifies a passenger transliterated into English, often do not providers for any flight for which the as a selectee under 19 CFR 122.49a, denote gender. Providing information large aircraft operator has submitted 122.75a, or 122.22, TSA would allow on gender will reduce the number of advance passenger information to U.S. the large aircraft operator to permit the false positive watch-list matches, Customs and Border Protection (CBP) passenger to board the aircraft, and TSA because the information will distinguish under 19 CFR part 122. For passengers would require the large aircraft operator persons who have the same or similar on flights in commercial aircraft, as to comply with the procedures in its names but who are of a different gender. defined in 19 CFR 122.1, the large security program pertaining to The date of birth is also helpful in aircraft operator are required to submit passengers that are identified as distinguishing a passenger from an advance passenger information under 19 selectees, as discussed in further detail individual on a watch-list with the same CFR 122.49a and 122.75a and comply below. If CBP identifies a passenger as or similar name, thereby reducing the with the CBP boarding instruction ‘‘not cleared’’ under 19 CFR 122.49a, number of false positive watch-list regarding each passenger. 122.75a, or 122.22, TSA would not matches. TSA notes that CBP published a allow the large aircraft operator to This proposed rule would also require notice of proposed rulemaking, permit the passenger to board the aircraft operators to request an ‘‘Advance Information on Private aircraft. CBP would instruct the large individual’s redress number, if Aircraft Arriving in and Departing from aircraft operator to contact TSA available. DHS will assign this unique the United States,’’ proposing to regarding the passenger who has been number to individuals who use the DHS Traveler Redress Inquiry Program (DHS implement certain passenger manifest identified as ‘‘not cleared’’ for further TRIP), because they believe they have and advance passenger screening resolution. requirements for private aircraft d. Passenger information. This been incorrectly delayed or denied departing foreign ports for U.S. proposed rule would require large boarding. Individuals may be less likely destinations or departing the United aircraft operators to request full name, to be delayed by false positive matches States for foreign ports. Under the CBP gender, date of birth, and redress to the watch-list if they provide their proposed rule, a private aircraft, in number 22 (if available) from all redress number, if available. 20 Under the proposed rule, individuals contrast to a commercial aircraft, is passengers. TSA has determined that an would not be compelled to provide their generally any aircraft engaged in a individual’s full name, gender, and date gender, date of birth, or redress number personal or business flight to or from the of birth are critically important for when requested by the aircraft United States that is not carrying effective automated watch-list matching passengers and/or cargo for commercial operators. However, without this 21 information, the watch-list service purposes. See 19 CFR 122.1(h). CBP’s passengers and/or cargo in a foreign area for commercial purposes; or returning to the United provider may be unable to perform 20 19 CFR 122.1(d) defines ‘‘commercial aircraft’’ States carrying neither passengers nor cargo in effective automated watch-list matching as any aircraft transporting passengers and/or cargo ballast after leaving with passengers and/or cargo and, as a result, the individuals may be for some payment or other consideration, including for commercial purposes. more likely to be denied boarding, or money or services rendered. 22 The redress number is the number assigned by 21 19 CFR 122.1(h) also defines a private aircraft DHS to an individual processed through the redress under certain circumstances, be subject as any aircraft leaving the United States carrying procedures described in 49 CFR part 1560, subpart neither passengers nor cargo in order to lade C, as proposed in the Secure Flight NPRM. 23 See Secure Flight NPRM, 72 FR at 48364.

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to additional screening. TSA is Upon submission of the passenger Additionally, if the aircraft operator considering whether to require all information by the aircraft operator to becomes aware that any data element in individuals to provide their gender and the watch-list service provider, the the passenger information has changed, date of birth to assist in the watch-list service provider would conduct the the large aircraft operator would be matching and resolution process. automated comparison using the required to transmit to the watch-list The proposed rule would require passenger information provided. If an service provider updated passenger large aircraft operators to transmit to the automated comparison indicates that information, which includes the full watch-list service provider the the passenger is not a match to the name, and if available, gender, date of passengers’ full names and also transmit watch-list, the service provider would birth, redress number, and passport the passengers’ genders, dates of birth, instruct the aircraft operator that the information. If the large aircraft operator and redress numbers, to the extent they passenger is cleared to board the sends updated passenger information to are available. In addition, the proposed aircraft. If the automated comparison the watch-list service provider for a rule would require large aircraft using the passenger information passenger for whom the service provider operators to transmit certain identifies a potential match to the has already transmitted instruction, the information from an individual’s watch-list, the watch-list service large aircraft operator would not be able passport (full name, passport number, provider would contact TSA for to permit the passenger on board until country of issuance, expiration date, resolution of the potential match. TSA the large aircraft operator receives gender, and date of birth), if it is would coordinate with the TSC for updated instructions from the watch-list available and was provided to the resolution if necessary and would service provider. Any previous aircraft operator. Based on TSA’s provide further instructions concerning instruction regarding the passenger experience in conducting security threat the passenger to the service provider. would be void; the large aircraft assessments that include watch-list If TSA cannot determine from the operator would be required to comply matching, TSA has determined that information provided by the watch-list with any updated instruction from the passport information would help service provider whether the individual service provider. resolve possible false positive matches is a match to the watch-list, it may be f. Master passenger list. TSA and make the watch-list matching necessary for the passenger to provide recognizes that many large aircraft process more accurate. additional information to resolve the operators carry the same passengers on possible match. In these instances, TSA TSA is not proposing a minimum most or all of their flights and that it would inform the watch-list service time in advance of the flight that large would be burdensome for the large provider to instruct the large aircraft aircraft operators would be required to aircraft operators to send the required operator to contact TSA directly to submit passenger information to the information for the same individuals on resolve the possible match between the watch-list service provider. TSA each flight. Consequently, the proposed passenger and the watch-list record, and anticipates that the large aircraft rule includes a provision for a master TSA would provide final instructions operators would work with their service passenger list. Under this optional concerning the possible match and the proposed provision, individuals on a providers to establish a minimum time passenger’s status to the large aircraft that the service provider would need to master passenger list would be subject operator. to continuous vetting of their names complete watch-list matching in e. Aircraft operator procedures. TSA advance of a flight. Nevertheless, TSA against the watch-list.24 TSA would not believes that it is important for large require large aircraft operators to seeks comment on whether it should aircraft operators and their pilots, as the transmit information on these establish a minimum time for in-flight security coordinators, to know passengers every time they are on a submission of passenger information to whether a passenger is identified as a flight operated by the large aircraft the service providers, what that selectee so they can make appropriate operator. This master list would be minimum time should be, and the security decisions. If the passenger is applied for domestic flights only; CBP reasons supporting the suggested identified as a selectee, TSA would would require aircraft operators and minimum time. allow the large aircraft operator to their pilots to transmit advance Upon submission of the passenger permit the passenger to board the passenger information to CBP for information by the aircraft operator to aircraft. However, TSA would require international flights departing from or the watch-list service provider, the the aircraft operator to comply with the service provider would conduct the procedures described in its security arriving in the United States under automated vetting of the passenger program pertaining to passengers CBP’s eAPIS NPRM, and passengers information provided against the watch- identified as selectees. Although TSA would need to present their passports list which is comprised of the No Fly would not require large aircraft pursuant to CBP regulations. Prior to collecting passenger and Selectee List components of the operators to conduct screening of information from an individual to place Terrorist Screening Database. The selectees and their accessible property that individual on a master passenger watch-list service provider would on a normal basis, if warranted by inform the aircraft operator of the security considerations, TSA may list, the large aircraft operator would be results of the watch-list matching by require some or all large aircraft required to inform the individual that transmitting instructions to the large operators to screen selectees and their he or she would have the option of aircraft operator for each passenger. The accessible property. In this being placed on the master passenger large aircraft operator would not be able circumstance, TSA would coordinate list, to provide the individual with to permit a passenger aboard an aircraft with the large aircraft operators on the notice of the purpose and procedures until the large aircraft operator receives appropriate screening protocols. related to a master passenger list, and to the instructions from the watch-list If the watch-list service provider obtain from the individual a signed, service provider that would allow the instructs the large aircraft operator that written statement affirmatively aircraft operator to board the passenger. a passenger must be denied boarding, 24 The proposed rule would define ‘‘continuous The large aircraft operator would be the large aircraft operator would not be vetting’’ as the process in which the passenger’s required to comply with the able to permit the passenger to board information is continuously matched against the instructions. unless explicitly authorized by TSA. most current watch-list.

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requesting that he or she be placed on match to the watch-list; this is much proposed § 1544.243 and compliance a master passenger list. These like the current practice where aircraft oversight. requirements would ensure that operators conduct watch-list matching i. Secure Flight. As noted above, the individuals would be informed that pursuant to their security programs. long-term plan is for TSA to assume the their inclusion in a master passenger list TSA is considering requiring aircraft watch-list matching responsibility from would be voluntary and contingent operators to provide a privacy notice to all aircraft operators required to conduct upon their providing written consent passengers in the LASP. Most LASP watch-list matching and to conduct the and that a watch-list service provider aircraft operators do not have a watch-list matching through the Secure would continuously maintain their reservation system and are on-demand Flight Program. Under the current stage passenger information and compare the operations, such as charter, corporate, of Secure Flight development, Secure information against the watch-list. fractional, and recreational (friends and Flight will not have the capability to In order to place an individual on the family) operations. LASP aircraft conduct watch-list matching for large master passenger list, the large aircraft operators may find it challenging and aircraft operators for several years. operator would be required to comply Under the Secure Flight NPRM, TSA burdensome to provide a privacy notice with the following: (1) Request and would assume the watch-list matching to their passengers when collecting the obtain the full name, gender, date of only for full program operators and information. TSA is seeking comments birth, redress number, and passport certain foreign air carriers. If the Secure on how a privacy notice could be information of the individual; (2) Flight Program is capable of assuming transmit the passenger information and provided during the collection of the watch-list matching responsibility any updated passenger information to a information while considering the from large aircraft operators when TSA watch-list service provider and feasibility, costs, and effectiveness of would require implementation of the designate the individual for continuous providing such notice. Should TSA LASP, TSA may amend the scope of the vetting; (3) ensure that the watch-list require large aircraft operators to Secure Flight regulations to include service provider is responsible for provide a privacy notice on web sites large aircraft operators in the final rule continuous vetting for that individual at through which passenger service is for this NPRM. the time the individual boards an offered, either on their own web site or Under the Secure Flight Program, aircraft; (4) receive an instruction that through an internet travel web site that TSA may require large aircraft operators the individual is cleared in response to offers seats on charter flights, or via to collect and transmit the same data the initial transmission of passenger other means that would provide notice elements, called Secure Flight Passenger information or transmission of updated to passengers on aircraft operated by Data (SFPD), to TSA for all passengers passenger information; and (5) receive LASP operators? that full program operators must collect any instruction to prohibit the TSA is considering data and record and transmit for their passengers. individual from boarding an aircraft. retention requirements for records for Although, in the Secure Flight NPRM, g. Aircraft operators under a full watch-list service providers and large TSA did not propose to cover the large program. Under 49 CFR 1544.101(a), aircraft operators. TSA seeks comment aircraft population in the Secure Flight TSA requires full program aircraft on whether the proposed record Program, TSA is proposing, in this operators to conduct watch-list retention for the Secure Flight Program LASP NPRM, to align the LASP matching of their passengers under their should be applied to large aircraft passenger information requirements security program. Some of the full operators and watch-list service with those of the Secure Flight Program. program aircraft operators also operate providers to ensure that personally Consequently, the passenger information requirement in proposed flights under the other security identifiable information is not retained § 1544.245 of this LASP NPRM is programs in 49 CFR 1544.101. Many of for longer than necessary. As explained similar to proposed § 1560.101 in the these aircraft operators use the same in the Secure Flight NPRM, TSA would Secure Flight NPRM.26 TSA’s intent is system or process to conduct watch-list retain passenger information for seven matching for their flights operated to align the data requirements of LASP days for passengers that are cleared, under their full security program, as and the Secure Flight Program, so that seven years for passengers that have well as flights operated under their they match when the final rules are been identified as potential matches to other security programs. Under the implemented. the watch-list, and 99 years for proposed rule, TSA would require full The methods for transmitting SFPD to program aircraft operators to transmit passengers who are confirmed matches TSA would be described in the standard to the watch-list under the Secure Flight security program for large aircraft the passenger information for 25 passengers on their flights operated Program. If TSA were to require a operators. Possible methods of under the LASP to watch-list service similar record retention schedule for transmission may include a direct providers approved by TSA to conduct records collected, transmitted, and connection to TSA, similar to the the watch-list matching on their behalf. received under proposed § 1544.245 and connection that some full program TSA requests comment on whether full part 1544, subpart F, large aircraft operators will establish, and an internet- program aircraft operators should be operators’ watch-list service providers based application. Similar to the permitted to conduct watch-list would retain and destroy passenger requirements proposed for the watch- matching for passengers on flights information and watch-list matching list service provider, large aircraft operated under their LASP using the results in accordance to this schedule. operators would not be able to board system or process that they use for TSA is also considering requiring large passengers until they received boarding flights operated under their full security aircraft operators and watch-list service instructions from TSA. TSA would also program, including TSA’s Secure Flight providers to retain passenger require large aircraft operators to Program when it is available. information for passengers who are comply with the boarding instructions. h. Privacy notice and data retention. cleared, for three years, to facilitate the TSA would transmit the boarding TSA would only receive passenger audit that large aircraft operators would instructions after conducting the watch- information if the watch-list service undergo every two years under list matching of the passengers. provider’s automated vetting system identifies an individual as a potential 25 See Secure Flight NPRM, 72 FR at 48363. 26 72 FR at 48388.

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TSA has determined that watch-list aircraft operator population that would operations the aircraft operators may matching of passengers on large aircraft be subject to this proposed rule, TSA have. Given these TSA inspections, TSA is an important security measure, would need an effective mechanism to requests comment on whether it is because it can prevent individuals who verify large aircraft operators’ necessary to require full program are believed to pose a risk from boarding compliance with the large aircraft aircraft operators that also operate a large aircraft and, potentially, gaining program. While TSA intends to develop flights under a LASP to contract with a control of the aircraft, to use it as a a compliance program for, and conduct third party auditor to conduct a biennial weapon or to cause harm to aviation or inspections of, large aircraft operators, it audit of their operations for compliance national security. Such considerations is not possible for TSA to visit with their security program and TSA extend beyond the simple use of aircraft approximately 10,000 large aircraft regulations. as missiles, but also include aircraft as operators on a regular basis. Unauthorized Persons and Accessible delivery vectors for other catastrophic TSA proposes the use of TSA- Weapons on Board Large Aircraft payloads (e.g., chemical, biological, approved third-party auditors. These radiological or nuclear materials). Given TSA-approved third-party auditors TSA would require large aircraft the security concerns, TSA believes a would support existing TSA resources operators to apply security measures in reliable mechanism for watch-list and would enhance compliance with their security program to prevent or matching for large aircraft must be TSA regulations and the aircraft deter the carriage of unauthorized operational without undue delay. The operator’s security program. Auditors persons and unauthorized weapons, watch-list matching service providers would conduct audits of large aircraft explosives, incendiaries, and other would provide the needed security and operators for their compliance with destructive substances or items on board do so in a timely fashion. While the their security program and TSA a large aircraft. This proposed security Secure Flight Program would also regulations. The auditors would submit measure is designed to prevent provide a reliable mechanism, its ability their findings in the manner and form unauthorized persons, such as a to absorb the watch-list matching prescribed by TSA. Auditors’ reports stowaway, or accessible weapons, from function for the large aircraft population would assist TSA inspectors in the being placed in a large aircraft. Under is likely to be several years away, and conduct of compliance inspections as the proposed security measure, the large it is likely that it would not be available necessary. TSA would use the third- aircraft operator would check for to address this important security need party auditors’ reports as one tool in weapons and check any container, when TSA would be ready to establishing inspection priorities. The cargo, or company material that may be implement the LASP. Thus, TSA audits would also assist large aircraft used to hide a stowaway, or explosives, believes that the using the watch-list operators in assessing the security incendiaries, or other destructive service providers will be the more measures in place for their own aircraft. substances or items. The security viable security solution for watch-list TSA proposes to require large aircraft program would describe the method for matching when TSA is ready to operators to contract with TSA- conducting the checks, such as visual implement the LASP. approved auditors to conduct a biennial inspection of the exterior of the persons While TSA anticipates that Secure audit of their compliance with TSA or containers of certain sizes and Flight would be the long-term regulations and their security programs. weights, with further evaluation if mechanism for conducting watch-list Large aircraft operators would initially necessary. This proposed rule would matching of passengers, TSA seeks undergo an audit within 60 days of only apply to property that may be comments on whether the watch-list TSA’s approval of the large aircraft accessible to the cabin of the aircraft. matching service providers should serve operators’ security program and then For example, if the property is stowed as part of the long-term solution to large every two years thereafter. Large aircraft in a cargo hold that would not allow aircraft watch-list matching, such as by operators would also be required to access to the cabin of the aircraft, then gathering the passenger information provide auditors access to their records, that property would be exempt from from the aircraft operators and equipment, and facilities necessary for inspection. submitting it to TSA for watch-list the auditor to conduct an audit. The For purposes of screening passengers matching, then receiving the results aircraft operators would receive a copy on air carrier flights under a full from TSA. One possible advantage of of the audit report and would be program, TSA considers weapons to the watch-list service providers may be provided an opportunity to submit include items on its prohibited items that the master passenger list system comments on the audit report to TSA. list, which is posted on TSA’s Web site developed by these providers would In this NPRM, TSA is proposing that at http://www.tsa.gov. This list includes, remain undisturbed, a convenience for large aircraft operators may select any among other things, guns, firearms, and passengers on those lists and the large TSA-approved auditor to perform the certain sharp objects or tools such as aircraft operators. Additionally, TSA audit function. However, TSA is knives, including steak knives and seeks comment on whether maintaining considering instituting a system that pocket knives. TSA is proposing to the watch-list matching service would assign auditors to large aircraft require large aircraft operators to adopt providers may reduce the costs operators on a random basis in order to and carry out procedures to prevent associated with a transition to the assure overall consistency of the passengers from carrying prohibited Secure Flight Program. There may also auditing program, thereby enhancing items onto the aircraft. We understand, be benefit to TSA in limiting the security. TSA seeks comment on however, that large aircraft operators number of different entities to which the whether to include a system of assigning currently not subject to a TSA security Secure Flight program would maintain auditors in the final rule and on program 27 may have special direct links, requiring only links with methods of doing so. circumstances that should be As stated above, many full program the watch-list service providers, not all considered. TSA seeks comment on the aircraft operators also operate flights large aircraft operators. following issues: First, for large aircraft under the private charter program. TSA Audit Requirement routinely conducts inspections of full 27 Private charters and twelve-five operators Due to the large size and widely- program aircraft operators, and these currently must ensure there are no prohibited items dispersed geographical locations of the inspections include any private charter accessible in the cabin.

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operators that are not carrying persons 2. Aircraft of MTOW Over 45,500 kg or are required to comply with the Twelve- or property for compensation or hire, With a Passenger Seating Configuration Five All-Cargo Program, would also be should ‘‘weapons’’ be limited to guns of 61 Seats or More Operated for subject to § 1544.202. and firearms? Further, should there be Compensation or Hire All-cargo operations with an aircraft a different requirement depending on TSA has determined that aircraft over with an MTOW of over 45,500 whether the aircraft has a MTOW of 45,500 kilograms or with a passenger kilograms currently must use the full 45,500 kg or less or more than 45,500 seating configuration of 61 seats or more all-cargo program and this would be kg? operated for compensation or hire reflected in the rule. TSA understands that a significant should be subject to increased security 4. Sensitive Security Information portion of the large aircraft population requirements. The current private Protection of Sensitive Security may not have inaccessible cargo hold charter program, which applies to compartments, but may have a need to Information (SSI), as codified at 49 CFR aircraft of this size and weight, includes part 1520, would apply to each aircraft transport weapons, such as when more security measures than the current operator operating under the large transporting hunters. Therefore, TSA twelve-five program. Part 125 (14 CFR) aircraft program. Airport and aircraft proposes that weapons may be stored in operators using this size aircraft also operator security programs and related a cargo hold, if the aircraft has such a currently must comply with the private amendments, Security Directives and cargo hold, or may be stored in a locked charter program. This approach is Information Circulars, technical box in the cabin under the direct control supported by the International Civil specifications of security screening and of the in-flight security coordinator. In Aviation Organization (ICAO), which detection systems and devices, among these instances, the weapons would be requires that aircraft of more than 60 other types of information, constitute considered inaccessible to the persons passengers, or with a MTOW of over SSI under current 1520.5 and are on board. 45,500 kilograms, be regulated and prohibited from public disclosure. protected from intrusion and ballistic Additional Requirements Watch-list service providers’ threats. instructions to the large aircraft Although the private charter program The LASP would also include the operators would also be SSI. The SSI would be merged into the large aircraft following requirements: designation of regulations would apply to LASPs as program, TSA believes that maintaining Aircraft Operator Security Coordinators, well. Ground Security Coordinators, and In- a higher level of security for aircraft Access to SSI is strictly limited to Flight Security Coordinators; over 45,500 kilograms, or with a those covered persons with a need to regulations concerning law enforcement passenger seating configuration of 61 know, as defined in 49 CFR 1520.7 and personnel; the carriage of TSA Federal seats or more, operated for 1520.11. In general, a person has a need compensation or hire would be an Air Marshals (FAMs) onboard an to know specific SSI when he or she important security measure. Thus, for aircraft; the aviation security requires access to the information to these aircraft, the proposed rule would contingency plan; and procedures for carry out transportation security continue the requirements now in the handling bomb and air piracy threats. activities that are government-approved, Private Charter Program for the These proposed requirements are -accepted, -funded, -recommended, or operators to inspect passengers and discussed in further detail in the -directed, including for purposes of their property and to perform CHRCs on Section-by-Section Analysis portion of training on, and supervision of, such their employees who conduct screening. the preamble. activities or to provide legal or technical The economic analysis for this NPRM 3. All-Cargo Operations advice to airport operators, aircraft suggests that the aircraft operator TSA recently issued a final rule operators or their employees regarding security coordinator requirement is the regarding air cargo security, including security-related requirements. highest-cost measure in this proposed all-cargo operations in an aircraft with Accordingly, the protection of SSI rule, and TSA invites comment on a MTOW over 12,500 pounds. See Final would apply to each large aircraft whether there is a more cost-effective Rule for Air Cargo Security operator operating under a security means of meeting the same or Requirements, 71 FR 30478 (May 26, program pursuant to 1544.101(b). substantially similar security goals as 2006).28 Because cargo security remains detailed herein. Although our 5. Existing and Proposed Requirements an important part of aviation security, for Large Aircraft preliminary view is that the benefits of TSA proposes to retain the requirements the security coordinator requirements as for all-cargo operations in the LASP. Table 2 below illustrates the proposed justify their costs, we are Consequently, large aircraft all-cargo requirements for large aircraft operators interested in comment on alternatives. operations would be required to comply and whether these requirements would Is there a current industry practice that with the cargo requirements in 49 CFR be new or modified for current holders could provide a suitable alternative? 1544.202 and 1544.205(a), (b), (d), and of security programs. The table indicates Should certain general aviation (f) in addition to the core requirements how the proposed rule would affect the operators be exempted from the of the LASP. current large aircraft operators. The first requirements or portions of the The large aircraft all-cargo program column describes the proposed content requirements? Are there operational would replace the existing Twelve-Five requirements for the LASP. The limitations that prevent aircraft All-Cargo Program. Current aircraft remaining five columns list five types of operators from designating security operators that are subject to the Twelve- aircraft operators that would be required coordinators for multiple flight Five All-Cargo Program would be to adopt and implement the large segments? TSA also invites comments subject to the proposed requirements for aircraft security program under the on the use of a single individual for large aircraft in all-cargo operations. proposed rule. The table indicates multiple security coordinator roles. Additionally, 14 CFR part 125 operators whether each type of aircraft operator is Comments that specifically address the in all-cargo operations, which currently currently required to comply with each costs and benefits of alternatives to the content requirement of the proposed security coordinator requirements 28 The effective date of the final rule was Oct. 23, LASP or whether the proposed content would be welcome. 2006. requirement is a new requirement for

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the aircraft operator. Additionally, as and the Private Charter Security Table 3 compares the proposed large part of this rule, TSA would modify Program. The table also indicates aircraft program with the Full Program some of the content requirements for the existing requirements that would be and the Full All-Cargo Program. current Twelve-Five Security Program modified under the proposed rule.

TABLE 2—REGULATORY REQUIREMENTS FOR LARGE AIRCRAFT

Scheduled or char- Scheduled or char- All-cargo oper- Private charters ter operations in Large aircraft op- Description of proposed LASP ter operations re- ations required to required to have a aircraft with 31–60 erators not cur- requirement quired to have a have a twelve-five private charter seats required to rently required to twelve-five program program have a partial have a security program program program

Acceptance & screening of individuals Does not apply ..... Does not apply ..... Currently applies Does not apply ..... Does not apply. and accessible property and would con- (§ 1544.201). tinue. Acceptance and screening of cargo Does not apply ..... Currently applies Does not apply ..... Does not apply ..... Does not apply. (§ 1544.205). and would con- tinue. Persons and property on board a New requirement .. Does not apply ..... New requirement .. New requirement .. New requirement. large aircraft (§ 1544.206). Screening of individuals and property Does not apply ..... Does not apply ..... Currently applies Does not apply ..... Does not apply. (§ 1544.207). and would con- tinue. Required to have security coordina- Currently applies Currently applies Currently applies Currently applies New requirement. tors (§ 1544.215). and would con- and would con- and would con- and would con- tinue. tinue. tinue. tinue. Provision of law enforcement per- Currently applies Currently applies Currently applies Currently applies New requirement. sonnel at airports serving the air- and would con- and would con- and would con- and would con- craft operators (§ 1544.217). tinue. tinue. tinue. tinue. Carriage of accessible weapons on Currently applies Currently applies Currently applies Currently applies New requirement. board aircraft (§ 1544.219). and would con- and would con- and would con- and would con- tinue. tinue. tinue. tinue. Requirement to transport FAMs Currently applies; Currently applies; New requirement .. Currently applies; New requirement. (§ 1544.223). would be modi- would be modi- would be modi- fied. fied. fied. Provide for security of aircraft and fa- New requirement .. New requirement .. Currently applies New requirement .. New requirement. cilities (§ 1544.225). and would con- tinue. Security training for security coordina- New requirement .. New requirement .. Currently applies New requirement .. New requirement. tors and crew (§ 1544.233). and would con- tinue. Training Program—Individual security- Currently applies Currently applies Currently applies Currently applies New requirement. related duties (§ 1544.235). and would con- and would con- and would con- and would con- tinue. tinue. tinue. tinue. Program to permit passengers to pro- New requirement .. New requirement .. New requirement .. New requirement .. New requirement. vide volunteer emergency services (§ 1544.241). Required to undergo third-party audits New requirement .. New requirement .. New requirement .. New requirement .. New requirement. (§ 1544.243). Required to send flight manifest to New requirement .. New requirement .. New requirement .. New requirement .. New requirement. approved vendor for watch-list matching of passengers (§ 1544.245). Security threat assessment with crimi- New requirement .. New requirement .. New requirement .. New requirement .. New requirement. nal history records check for flight crew (part 1544, subpart G). Develop and implement contingency Currently applies Currently applies Currently applies Currently applies New requirement. plan in response to threats and would con- and would con- and would con- and would con- (§§ 1544.301(a) & (b)). tinue. tinue. tinue. tinue. Bomb and hijacking threats Currently applies Currently applies Currently applies Currently applies New requirement. (§ 1544.303). and would con- and would con- and would con- and would con- tinue. tinue. tinue. tinue. Comply with security directives and Currently applies Currently applies Currently applies Currently applies New requirement. information circulars (§ 1544.305). and would con- and would con- and would con- and would con- tinue. tinue. tinue. tinue.

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TABLE 3—COMPARISON OF AIRCRAFT OPERATOR SECURITY PROGRAMS

Proposed Full program Full all-cargo large aircraft Description of security requirement operators program oper- program ators operators

Acceptance & screening of individuals and accessible property (§ 1544.201) ...... X ...... X Screening of individuals and property (watch-list & accessible weapons) (§ 1544.202) ...... X X Acceptance and screening of checked baggage (§ 1544.203) ...... X ...... Acceptance and screening of cargo and accessible property (§ 1544.205) ...... X X X Check property on board (§ 1544.206) ...... X Screening of individuals and property (§ 1544.207) ...... X X X Use of metal detection devices (§ 1544.209) ...... X X ...... Use of X-ray systems (§ 1544.211) ...... X X ...... Use of explosives detection systems (§ 1544.213) ...... X ...... Required to have security coordinators (§ 1544.215) ...... X X X Provision for law enforcement personnel at airports serving the aircraft operators (§ 1544.217) ...... X X X Carriage of accessible weapons on board aircraft (§ 1544.219) ...... X X X Carriage of prisoners under the control of armed law enforcement officers (§ 1544.221) ...... X ...... Requirement to transport FAMs (§ 1544.223) ...... X X X Provide for security of aircraft and facilities (§ 1544.225) ...... X X X Exclusive area agreements (§ 1544.227) ...... X X ...... Access to cargo and security threat assessments for cargo personnel in the United States (§ 1544.228) ...... X X ...... CHRC: Unescorted access to SIDA, screening, baggage/cargo checks (§ 1544.229) ...... X X ...... CHRC: Flight crew members (§ 1544.230) ...... X X ...... Airport-approved and exclusive area personnel identification systems (§ 1544.231) ...... X X ...... Security training for security coordinators and crew (§ 1544.233) ...... X X X Training Program—Individual security-related duties (§ 1544.235) ...... X X X Flight deck privileges (§ 1544.237) ...... X X ...... Program to permit passengers to provide volunteer emergency services (§ 1544.241) ...... X ...... X Required to undergo third-party audits (§ 1544.243) ...... X Required to send flight manifest to approved vendor for watch-list matching of passengers (§ 1544.245) ...... X Security threat assessment with criminal history records check for flight crew, individuals au- thorized to perform screening functions, applicants to become TSA-approved auditors, and watch-list service provider cover personnel (Part 1544, subpart G) ...... X Develop and implement contingency plan in response to threats (§ 1544.301) ...... X X X Bomb and hijacking threats (§ 1544.303) ...... X X X Comply with security directives and information circulars (§ 1544.305) ...... X X X

B. Proposed Requirements for Certain airports that serve large aircraft to adopt The second type of airport is an Airports a security program. airport that regularly serves scheduled There are thousands of GA airports or public charter operations in large Currently, the regulations extend that serve large aircraft. TSA considered aircraft. These operations have fare- airport security program requirements to the heavy burden involved for all these paying passengers on a regular basis. airports that regularly serve aircraft airports to adopt a security program. TSA proposes to require these airports operations using full programs, partial Many are very small and may have to adopt the partial program. This programs, private charter programs, and limited resources and limited large program would provide a basic level of corresponding foreign air carriers.29 aircraft activity. TSA proposes to security enhancement to compliment These regulations for airport operators require two types of airports to hold a and support the security measures that provide for the safety and security of security program because of the type of TSA would require large aircraft persons and property on an aircraft service they provide. operators to adopt and implement. operating in air transportation against The first type of airport that would be Table 4 below illustrates how the an act of criminal violence and aircraft required to hold a partial program is a proposed rule would affect the various piracy. An enhanced security GA airport that is designated as a types of airports. Table 5 compares the environment at the airports where large ‘‘reliever’’ airport by the Secretary of three types of airport security aircraft operate would support Transportation, as defined in 49 U.S.C. programs—complete program, enhanced security for the large aircraft. 47102(22). These airports perform the supporting program, and partial Thus, as part of the proposal to provide function of relieving congestion at a program. TSA believes that the security for large aircraft through a large commercial service airport by diverting requirements of the partial program for aircraft program for aircraft operators, GA from the commercial services airport airport operators would not be TSA also proposes to require certain to the reliever airport and provide more burdensome for reliever airports, and GA access to the overall community. airports that regularly serve scheduled 29 49 CFR 1544.101(a), (b), and (f), and Reliever airports are generally near or public charter operations, to adopt 1546.101(a), (b), (c), and (d). However, there are no metropolitan areas and thus serve and and carry out. TSA also believes that the airports that currently hold a security program because they regularly serve an aircraft operator are close to large populations—thus the requirement for these airports to holding a partial program or a private charter need for greater security at these implement security programs will not program, or their foreign air carrier equivalent. airports. place a significant burden on local law

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enforcement agencies, because TSA requiring law enforcement response at expects that there will be few incidents these airports.

TABLE 4—AIRPORT OPERATOR SECURITY PROGRAMS

An airport operator must have this Current: If it regularly serves aircraft operations program under these security programs in 49 CFR Proposed: If it meets the following criteria:

Complete program §1542.101(a) ..... full program under § 1544.101(a)(1); or foreign air No change. carrier program under § 1546.101(a). Supporting program § 1542.101(b) ... full program under § 1544.101(a)(2); or ...... Regularly serves full program aircraft operator under § 1544.101(a)(2) (no change); or private charter program under § 1544.101(f); or ...... Regularly serves foreign air carrier aircraft operator program under § 1546.101(b) (no change); or foreign air carrier program under § 1546.101(c) ...... Regularly serves foreign air carrier under § 1546.101(c) (no change). Partial program § 1542.101(c) ...... partial program under § 1544.101(b); or ...... Regularly serves large aircraft operator in sched- uled or public charter passenger operations under § 1544.101(b); or foreign air carrier program under § 1546.101(d) ...... Is a reliever airport. None required * ...... twelve-five program under § 1544.101(d) ...... Large aircraft not described above. None required * ...... limited program under § 1544.101(g) ...... No change. None required * ...... full all-cargo program under § 1544.101(h) ...... No change. * TSA may enter airports to inspect an aircraft operator that is operating under a part 1544 or 1546 security program. 49 CFR 1542.5(e).

TABLE 5—COMPARISON OF AIRPORT SECURITY PROGRAMS

Complete Supporting Partial pro- Description of security requirement program program gram

Designate Airport Security Coordinator (§ 1542.3) ...... X X X Description of secured areas of the airport ...... X ...... Description of the Airport Operations Area ...... X ...... Description of the Security Identification Display Area (SIDA) ...... X ...... Description of the sterile area ...... X ...... Criminal history records check of airport operator, airport user, individuals with unescorted access to a SIDA, and individuals seeking unescorted access authority ...... X ...... Description of personnel identification systems (§ 1542.211) ...... X ...... Escort procedures (§ 1542.211(e)) ...... X ...... Challenge procedures (§ 1542.211(d)) ...... X ...... Training program for individuals performing security-related functions for the airport operator (§ 1542.213) ...... X ...... Training program for law enforcement personnel (§ 1542.217(c)(2) ...... X X X Description of law enforcement support ...... X X X System for maintaining records (§ 1542.221) ...... X X X Procedures and description of facilities and equipment used to support TSA inspection of individuals, property, and aircraft operator and foreign air carrier screening functions ...... X ...... Contingency plan (§ 1542.301) ...... X X ...... Procedures for the distribution, storage, and disposal of Sensitive Security Information (including se- curity program, Security Directives, Information Circulars, and implementing instructions), and, as appropriate, classified information ...... X X X Procedures for posting of public advisories (§ 1542.305)) ...... X X X Incident management procedures (§ 1542.307) ...... X X X Alternate security procedures, if any, that the airport intends to use in the event of natural disasters, and other emergency and unusual conditions...... X ...... Exclusive area agreement (§ 1542.111) ...... X ...... Airport tenant security program (§ 1542.113) ...... X ......

In addition to the two types of TSA determine whether an airport the content requirements of the partial airports in the proposed rule text, TSA ‘‘regularly serves’’ a large aircraft with program and the supporting program requests comments on whether other MTOW of over 45,500 kilograms or a should be amended. For example, TSA types of airports should also be required passenger seat configuration of 61 or is considering whether it should require to adopt a security program, such as the more seats? Should TSA require airports airport security coordinators at locations partial program. For example, should that serve any large aircraft with MTOW with partial programs to undergo the TSA require airports that regularly serve of over 45,500 kilograms or a passenger same security training that airport aircraft used in private charter seat configuration of 61 or more seats to security coordinators at locations with a operations-aircraft with MTOW of over adopt a partial program, regardless of supporting or complete program under 45,500 kilograms or a passenger seating frequency? § 1542.3 undergo or whether a shorter configuration of 61 or more seats—to In addition to the proposed training program would be appropriate. adopt a partial program? If TSA were to amendments to § 1542.101(b) and (c), TSA is also considering whether adopt such an approach, how should TSA is seeking comments on whether airport operators should be required to

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undertake a risk-based self assessment successfully complete security threat • Currently hold or be able to obtain of their security programs. The ‘‘TSA assessments. a certification or accreditation from an Information Publication (A–001), • Adopt a security program that organization recognized by TSA. Security Guidelines for General complies with TSA requirements. • Have sufficient knowledge and Aviation,’’ includes the Airport The proposed rule describes the skills to conduct a security audit of an Characteristic Measurement Tool, which approval process that would apply and aircraft operator. includes a provision allowing lists the most significant airport • Receive initial and biennial prospective watch-list service providers characteristics that can potentially affect training. a facility’s security posture. to seek reconsideration of an initial • TSA may develop a computer based disapproval. Conduct independent and impartial training, available online or in a DVD Once TSA approves a watch-list audits, submit audit reports to TSA, and format, which incorporates GA security service provider, the provider would retain audit reports for 36 months. • awareness, elements of the existing have several responsibilities. TSA lists Identify, handle, and protect ‘‘TSA Information Publication (A–001), the major responsibilities below and Sensitive Security Information and keep Security Guidelines for General then describes them in greater detail in confidential other information provided Aviation Airports,’’ and industry best the section-by-section analysis of by TSA and large aircraft operators. practices. Airport operators may be able proposed §§ 1544.513 and 1544.515. • Submit to inspection by TSA. to use this training and accompanying • Carry out its security program, The proposed rule describes the self-assessment tool to fulfill a risk- which details the requirements for approval process that would apply to based self assessment should TSA conducting watch-list matching, auditors. Auditors would be able to seek decide to include it as part of the partial security of the systems and physical reconsideration of the disapproval to be program. property used to conduct watch-list a TSA-approved auditor from the matching, and training of personnel. Assistant Secretary or designee. C. Passenger Checking Against the • Develop and execute procedures to Watch-List Under the proposed rule, TSA would identify, handle, and protect Sensitive be able to withdraw approval of an As discussed above in section II.A of Security Information and maintain the auditor or responsibilities under the the preamble, the proposed rule would confidentiality of other information proposed rule or in the interest of require large aircraft operators to provided by TSA and aircraft operators. transportation or national security. transmit passenger information to third- • Submit to inspection by TSA. Under the proposed rule, TSA would Auditors would be able to seek party entities called watch-list service reconsideration of the withdrawal of providers to conduct watch-list retain the authority to withdraw a watch-list service provider’s approval to approval to conduct audits from the matching of their passengers. Because Assistant Secretary or designee. watch-list service providers would conduct watch-list matching if the perform an important security function, watch-list service provider failed to E. Proposed Amendments to the Full TSA is proposing to require potential meet the qualification requirements or Program and the Full All-Cargo Program watch-list service providers to obtain its responsibilities under the rule or if it were in the interest of transportation As part of this NPRM, TSA is also approval from TSA prior to conducting proposing a few minor amendments to watch-list matching for any large aircraft or national security. Watch-list service providers would be able to seek the full program and the full all-cargo operator. The proposed approval program. TSA proposes to require these process would ensure that the watch-list reconsideration of the withdrawal of approval to conduct watch-list matching aircraft operators to provide the service provider has the appropriate following information when they submit personnel and systems to process and from the Assistant Secretary or designee. their security program for approval keep secure sensitive and personally under § 1544.105: business name; other identifiable information. D. Third-Party Audits for Large Aircraft names including ‘‘doing business as’’; The following are the major Operators state of incorporation; tax identification requirements that potential watch-list number; and the address of the aircraft matching service providers would have As described in section II.A of this operator’s primary place of business or to satisfy to obtain approval from TSA. NPRM, TSA would require large aircraft headquarters. This information would The individual requirements are operators to contract with TSA- provide TSA the means to identify the described and discussed in further approved auditors to conduct audits of aircraft operators and to obtain basic detail in the section-by-section analysis their compliance with TSA regulations information about the aircraft operator of proposed § 1544.503. and their security programs. To ensure in the course of reviewing a new • Demonstrate ability to conduct that auditors have the qualification and security program for approval. automated watch-list matching and responsibilities to produce audits that continuous vetting. would be useful to TSA and the large Additionally, TSA proposes to add a • Adopt and implement a system aircraft operators and to identify, provision of voluntary services to the security plan for the system that handle, and protect Sensitive Security full program and the full all-cargo contains personally identifiable Information and other sensitive program, as explained in further detail information or is used to conduct information, TSA proposes the in the section-by-section analysis of watch-list matching. following major qualifications and proposed § 1544.241. Finally, as • Demonstrate ability to receive responsibilities that would apply to explained in the section-by-section passenger information from large auditors. These qualifications and analysis of § 1544.101, TSA proposes to aircraft operators and transmit watch- responsibilities, as well as other clarify that the full program applies to list matching results back to large requirements, are described and operators holding FAA operating aircraft operators. discussed in further detail in the certificates under 14 CFR part 119 and • Successfully undergo a suitability section-by-section analysis of proposed that the full all-cargo program applies to assessment by TSA. part 1522. operators holding FAA operating • Watch-list service provider’s • Successfully undergo a TSA certificates under 14 CFR part 119 or covered personnel would be required to security threat assessment. part 125.

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III. Section-By-Section Analysis amend § 1520.7(a) to include TSA- include relationships with parents, The proposed rule sets forth the approved auditors and watch-list children, and siblings. security regulations that would apply to service providers as covered persons Other proposed examples of conflict large aircraft operators, including the that are subject to the requirements of of interest include financial requirements for the security program. part 1520 as they apply to SSI. relationships and business relationships TSA is also proposing to amend several between the auditor and the operators to Part 1522—TSA Approved Auditors other sections of part 1544 and adding be audited. Financial interest would include, for example, the auditor new subparts F and G to set forth the As described in section II.D, aircraft procedures for watch-list service owning stocks or bonds of the operator operators subject to this rule would or the auditor having an employment, providers to obtain TSA approval and need to engage independent TSA- for large aircraft flight crews, auditors, rather than a contractual, relationship approved auditors to audit their with the operator. Examples of business and watch-list service providers’ compliance with their security covered personnel to obtain security relationships that would give rise to a programs. TSA is proposing a new part conflict of interest would be where the threat assessments, respectively. TSA is 1522 to establish a framework for this proposing to add a new provision in auditor had previous decision-making new third-party auditor program. This or managerial authority that would part 1540 to govern withdrawals of third-party auditor program would approved security programs. In affect current operations or program initially apply only to aircraft operators being audited. Additionally, an auditor addition, TSA is proposing to add a new under the LASP. TSA may expand its part 1522, which establishes procedures or the company that employs the use to other programs in the future. The auditor would not be able to provide for accrediting third-party auditors and broad scope of part 1522 would allow for prescribing their functions in the non-audit services to the operator if the TSA to use the process set forth in part non-audit services relate to the LASP program. With respect to airports 1522 for other programs that it may serving large aircraft, TSA is proposing operator’s security program. TSA seeks determine may benefit from an audit comments on these examples as well as to amend portions of part 1542 by program. regulating reliever airports, as suggestions for other examples that TSA Part 1522 would have two designated by the Secretary of should consider. TSA is also components: (1) qualifications and considering expressing the conflict of Transportation. TSA is also proposing procedures for individuals who seek interest concept as auditor changes to part 1520 to include the TSA’s approval for conducting audits; independence. Rather than defining and proposed LASP in the coverage of the and (2) specific qualifications and prohibiting conflicts of interest, TSA regulations regarding Sensitive Security required content of audit reports for the would define independence and would Information and minor changes to part LASP. The first of these components require an auditor to have independence 1550 to maintain consistency between would apply to all programs in which from the entity the auditor would audit. regulations. TSA would require third-party auditors. If TSA were to adopt a definition of Part 1520—Protection of Sensitive The second component would apply to ‘‘independence’’ in the final rule, the Security Information the LASP. definition of ‘‘independence’’ would describe circumstances similar to those Section 1520.5 Sensitive Security Subpart A—General described in the proposed definition of Information Section 1522.1 Scope and Terms Used ‘‘conflict of interest.’’ This approach TSA proposes to amend in This Part would be consistent with the GAO’s § 1520.5(b)(1)(i) to protect watch-list Government Auditing Standards and the service provider security programs as Proposed § 1522.1 explains that Securities and Exchange Commissions Sensitive Security Information. The individuals who wish to conduct audits regulations at 17 CFR 210.2–01 watch-list service provider would have of operators’ compliance with security concerning audits by certified public access to, and handle information on, programs must obtain TSA’s approval in accountants. the No Fly and Selectee Lists, which are accordance with part 1522. Section The final definition in proposed SSI. The proposed change to this section 1522.1 also defines terms used in the § 1522.1 is ‘‘TSA-approved auditor’’ or would protect this SSI from subpart. Proposed § 1522.1 defines ‘‘auditor.’’ These terms would mean an unauthorized disclosure by the TSA- ‘‘applicant’’ to mean the individual who individual who has been approved approved auditor, the watch-list service is seeking to become a TSA-approved under proposed part 1522 to conduct an provider, the aircraft operator, or any auditor. audit under 49 CFR chapter XII. other covered person. Section 1522.1 defines ‘‘conflict of interest’’ as a situation when the TSA- Section 1522.3 Qualifications Section 1520.7—Covered Persons approved auditor has a personal Section 1522.3 would establish As explained in the section-by-section impairment that might affect their qualifications for third-party auditors analysis of proposed part 1522 and ability to do their work and report their that would apply to such auditors in § 1544.243, TSA would require large findings impartially. This definition is any program in which TSA would aircraft operators to engage independent derived from the Government Auditing require their use. These qualifications TSA-approved auditors to audit their Standards established by the are designed to ensure that auditors compliance with their security programs Government Accountability Office have the resources and expertise and TSA regulations. TSA-approved (GAO) for ensuring that auditors do not required to conduct an audit and to auditors would have access to and have personal impairments that would prepare the required reports. With handle SSI regarding the aircraft interfere with their ability to maintain respect to qualifications, TSA is operator and TSA security standards as their independence. The proposed proposing that auditors have experience they relate to large aircraft operators. definition includes examples of conflict with Federal statutes and regulations Similarly, the watch-list service of interest situations, such as family or and have a certification or accreditation provider would have access to and employment relationships. from a highly-regarded organization in handle the No Fly and Selectee Lists, Relationships with family members that the appropriate field. Such an which are SSI. Accordingly, TSA would may be a conflict of interest would organization might include, for

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example, the International Standards or her application, the applicant would meet TSA standards for the particular Organization. For auditors that would be required to submit a written petition program. Auditors would be required to be involved with the large aircraft for reconsideration within 30 days of comply with TSA’s regulations for program, the International Civil receipt of the notice of disapproval. The identifying, handling, and protecting Aviation Organization or the petition would include a statement SSI. Under this section, auditors would International Business Aviation Council explaining why the applicant believes also be prohibited from disclosure of would also be acceptable. TSA would he or she meets the criteria in § 1522.3 any proprietary information. make publicly available a list of with any supporting documentation. Importantly, if an auditor conducting an acceptable accreditation or certification Reconsideration may result in audit believes that there is an instance organizations. TSA requests comments confirmation of the disapproval or in a of noncompliance that presents an on whether this qualification is determination that the application imminent threat to transportation appropriate and on other organizations should be approved. security or public safety, the auditor would be required to notify TSA that might have the stature to provide Section 1522.11 Withdrawal of the necessary certification or Approval immediately. The auditor would not be accreditation. authorized to require any remedial Finally, applicants would be required Under proposed § 1522.11, TSA action. to undergo a successful security threat would be able to withdraw the approval Section 1522.15 Fraud and Intentional assessment that includes a criminal of an auditor if the auditor ceased to Falsification of Records history records check. meet the qualification standards, the The proposed rule text does not auditor failed to meet his or her Proposed § 1522.15 includes require auditors to be U.S. citizens, U.S. responsibilities, or it is in the interest of provisions that would prohibit any nationals, or lawful permanent residents security or the public. If TSA withdraws person from making or providing any of the United States. We invite an auditor’s approval, the auditor would fraudulent statements, reports, records, comments on whether individuals with no longer be able to perform an audit access mediums, or identification. Any these important duties should be subject under TSA regulations. falsification of records or fraudulent to such a qualification. Under proposed § 1522.11, before actions would be a violation of the revoking an auditor’s authority, TSA regulations and 18 U.S.C. 1001, and it Section 1522.5 Application would provide the auditor with a would be a basis for TSA to withdraw Proposed § 1522.5 describes the proposed notice of withdrawal of the auditor’s approval under proposed information and documentation that approval that would include the basis § 1522.13. applicants would be required to submit for the withdrawal of approval. The to TSA. The information would include auditor would be able to file a written Section 1522.17 Inspections the applicant’s name, business address, petition for reconsideration to challenge Under proposed § 1522.17, auditors business phone number, and business e- the proposed notice. To challenge the would be required to permit TSA to mail address. TSA would also require proposed notice of withdrawal of inspect their facilities and copy records. the applicant to submit a copy of his or approval, an auditor would be required This section would allow TSA to her accreditation or certification from to submit the petition for evaluate the auditor’s performance and one of the organizations TSA reconsideration within 30 days of an operator’s compliance with TSA determines are acceptable for this receipt of the proposed notice. regulations and its security program. Reconsideration may result in purpose and a statement of how he or Subpart C—Auditors for the Large confirmation of the disapproval or in a she meets the requirements in proposed Aircraft Security Program § 1522.3. determination that the application should be approved. If the auditor does Section 1522.201 Applicability Section 1522.7 TSA Review and not file a petition for reconsideration, Approval Proposed § 1522.201 states that the proposed notice of withdrawal of subpart C would apply to auditors Proposed § 1522.7 describes the approval would become a final notice seeking to obtain TSA’s approval to review and approval process which TSA 31 days after the auditor receives the conduct audits for the large aircraft would carry out upon receipt of the proposed notice. program. auditor’s application. The procedures by In emergency situations, proposed which TSA would review applications § 1522.11 would allow TSA to issue an Section 1522.203 Additional for the third-party auditor program may emergency notice of withdrawal of Qualification Requirements involve several steps. After TSA approval that would be effective upon Proposed § 1522.203 describes the receives an application, TSA would receipt by the auditor. The auditor additional requirements that auditors decide whether to approve or would be able to challenge the for the LASP would be required to meet disapprove the application and would emergency notice of withdrawal of to be considered for approval. These send a written notice of approval or approval by submitting a written requirements would include: disapproval to the applicant. If the petition for reconsideration but • At least five years of experience in application is disapproved, the submission of the petition would not inspection or auditing relating to applicant would be able to seek stay the withdrawal of approval. governmental programs in security or reconsideration under proposed Section 1522.13 Responsibilities of aviation; § 1522.9. • TSA-Approved Auditors Three professional references; • Accreditation from an outside Section 1522.9 Reconsideration of Proposed § 1522.13 prescribes the organization within the last ten years; Disapproval of an Application responsibilities of TSA-approved and Proposed § 1522.9 describes the auditors. Auditors would not be allowed • Knowledge and ability to assess review and petition process for to undertake an audit where the auditor compliance with Federal statutes and reconsideration of disapproval of the had a conflict of interest as defined in regulations. auditor’s application. If an applicant proposed § 1522.1. Auditors would be These additional requirements would seeks to challenge the disapproval of his required to submit reports to TSA that demonstrate that the auditor possesses

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sufficient experience and knowledge in provider to determine whether their procedures for notice, response, and auditing compliance with governmental passengers may board the aircraft. appeal of a TSA decision to withdraw programs and that the auditor has Watch-list service providers, who must approval. The affected airport operator, credentials that reflect knowledge of the be approved by TSA, would compare aircraft operator, or large aircraft aviation industry. Auditors would be passenger names against the watch-list. operator would also be able to request able to satisfy the five-year experience Under proposed § 1544.245(b), large a stay of the withdrawal pending appeal requirement as a government employee aircraft operators would be required to of the notice. or private consultant or contractor. TSA request and obtain the full name of their TSA further proposes the codification requests comments on these passengers to transmit their passengers’ of emergency withdrawal procedures. requirements as well as other information to a watch-list service This proposal would create procedural requirements that TSA should consider provider to conduct watch-list matching guidelines to implement withdrawal of for auditors of LASPs. prior to the passengers boarding the a security program and affords due aircraft. Because full name is essential Section 1522.205 Audit Report process to the airport operator, aircraft in conducting effective watch-list operator, and large aircraft operator. The Section 1522.205 would require an matching, TSA proposes to require emergency procedures would allow the auditor to prepare an audit report that passengers to provide their full name operator to appeal the withdrawal, but would include information about the when the large aircraft operator requests the filing of the appeal would not stay audit process and the auditor’s findings their full name. the effective date of withdrawal because and conclusions of the audit. TSA TSA has published the Secure Flight of the extant circumstances giving rise would require the auditor to submit the NPRM, which also includes a proposal to the emergency. audit report within 30 days after the to require individuals who make audit was conducted. TSA would also reservations for a covered flight to Part 1542—Airport Security 30 require the auditor to sign an attestation provide their full names. Under the Section 1542.103 Content that the audit was performed proposed Secure Flight Program, full professionally and impartially. The name would be the full name that Section 1542.103 describes the audit report would be an important tool appears on the individual’s verifying airports that TSA requires to adopt a in TSA’s compliance program by identity document. A verifying identity security program. TSA requires airports enabling TSA to evaluate a large aircraft document would be an unexpired photo that regularly serve full program aircraft operator’s compliance with TSA identification issued by a government operators described in § 1544.101(a)(1) regulations and the operator’s security (Federal, State, or tribal) bearing the or foreign air carriers described in program and to ascertain if additional individual’s full name and date of birth § 1546.101(a) to adopt a complete TSA action is required. or an unexpired foreign passport. program. 49 CFR 1542.103(a). TSA also Examples of verifying identity requires airports that regularly serve full Section 1522.207 Training documents are driver’s licenses and program aircraft operators described in Under proposed § 1522.207, TSA passports. Accordingly, proposed § 1544.101(a)(2), private charter aircraft would require auditors to undergo § 1540.107(c) would apply the same operators described in § 1544.101(f), or initial and recurrent training. Through requirements to passengers of large a foreign air carrier described in the initial training, auditors would aircraft operators. § 1546.101(b) or (c) to adopt a acquire the necessary information on supporting program. 49 CFR the process, procedures, and forms Section 1540.301 Withdrawal of 1542.103(b). Additionally, TSA requires associated with the TSA-required audit. Approval of a Security Program airports regularly serving operations of Recurrent TSA prescribed training Various entities, such as airport an aircraft operator or foreign air carrier would provide auditors with up-to-date operators and aircraft operators, must described in § 1544.101(b) or information and would ensure that the submit their security programs to TSA § 1546.101(d) to adopt a partial program. auditor has maintained the necessary for approval. Once TSA approves a 49 CFR 1542.103(c). expertise to continue to perform audits. security program, the operator must As explained in section II.B of this Recurrent training would be required implement and operate under its NPRM, TSA proposes to expand the every 24 months. approved security program. The types of airports that would be required regulations, however, do not specifically Section 1522.209 Biennial Review to adopt a partial program to include address the process through which TSA reliever airports and airports that To ensure that a TSA-approved may withdraw its approval of a security regularly serve large aircraft with auditor continues to possess the program, when appropriate. scheduled or public charter service. requisite qualification and expertise to TSA currently has withdrawal Furthermore, TSA would amend conduct audits, TSA would require the procedures only for indirect air carriers § 1542.103(b) to remove airports auditor to submit to a biennial review. in 49 CFR 1548.7(f). To standardize the regularly serving aircraft operators that The review would consist of submitting regulations, TSA proposes a new are subject to the private charter evidence that an auditor’s training has § 1540.301 to codify procedures for TSA program under § 1544.101(f) from been successfully completed and is to withdraw approval of any operator’s among the airport operators that are current and that an auditor continues to security program held under subchapter subject to the supporting program. hold the necessary accreditation or C. The proposed standard for An airport that would not be required certification. withdrawal would be a TSA to adopt a security program under Part 1540—Civil Aviation Security: determination that the operation is § 1542.101(a), (b), or (c) may General Rules contrary to security and the public nevertheless seek TSA approval for its interest. Proposed § 1540.301 provides security program. To address this Section 1540.107 Submission to situation, TSA proposes to adopt Screening and Inspection 30 ‘‘Covered flight’’ is defined as a flight operated § 1542.101(e), which would allow TSA by an aircraft operator subject to a full program As discussed in section II.A, TSA under 49 CFR 1544.101(a) or by a foreign air carrier to approve a security program for this would require large aircraft operators to subject to 49 CFR 1546.101(a) or (b). Proposed type of airport, if the airport makes a contract with a watch-list service § 1560.3, 72 FR at 48387. request to TSA.

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Part 1544—Aircraft Operator Security transportation to the armed forces under the Note, however, that under the current conditions specified by section 40125(c). rule, government charters must comply Section 1544.1 Applicability of This with the Private Charter Program if the Part The government maintains direct responsibility for the operation of public charter enplanes passengers from, or Currently, § 1544.1(a)(1) limits part aircraft. Public aircraft are not subject to deplanes passengers into, a sterile area 1544 to aircraft operators that hold a many of the safety regulations that cover at an airport. This minimizes the risk FAA operating certificate under 14 CFR other aircraft operations.31 They are not that any weapon or other prohibited part 119. Because part 1544 would included in the statutory definition of item the government personnel may be apply to other aircraft operators under ‘‘civil aircraft’’ and thus are not subject carrying could inadvertently or this NPRM, TSA would amend to many of the same requirements that purposefully be used to taint the sterile § 1544.1(a)(1) to clarify that part 1544 apply to civil aircraft. See 49 U.S.C. area. This requirement would continue applies to all aircraft operators engaged 40102(16). There are strict limitations under the proposed rule. TSA would in civil aviation in an aircraft with a on how such aircraft may be used. See require government charters that MTOW of more than 12,500 pounds, not 49 U.S.C. 40124. Many of the operations deplane into, or enplane from, sterile just those that hold a operating are highly specialized and require areas to comply with the LASP, certificate under 14 CFR part 119. unique procedures, including security including obtaining an alternate procedures. TSA is proposing to make procedure for deplaning into, or Section 1544.101 Adoption and enplaning from, a sterile area. Implementation clear that public aircraft would not be subject to the LASP. The full program, the limited TSA is proposing this rulemaking to A government private charter under program, and the full all-cargo program regulate any civil aviation operations. TSA regulations means any aircraft would not be included in the large To ensure consistent treatment of operator flight— aircraft regulations. However, because similar aircraft operators, TSA proposes, TSA proposes to amend § 1544.1(a) to (2) For which the total passenger capacity in § 1544.101(b), to apply the same make part 1544 applicable to operators of the aircraft is used for the purpose of of aircraft with MTOW of over 12,500 threshold by requiring that the existing civilian or military air movement conducted partial program, twelve-five program, under contract with the Government of the pounds, TSA would also need to amend and private charter program operations United States or the government of a foreign §§ 1544.101(a) and (h) to maintain the be consolidated and covered under a country. status quo as to which aircraft operators are subject to the full program. single LASP. Note that the LASP would See 49 CFR 1540.5. Currently TSA Consequently, TSA would amend replace the above stated programs in regulations exempt most such § 1544.101(a) to state that aircraft §§ 1544.101(b) through (f). operations from the Private Charter operators that hold a FAA certificate Operations under the LASP would Security Program. See 49 CFR include civil operations of aircraft, under 14 CFR part 119 would have to 1544.101(f)(1)(ii). The rationale has been adopt and carry out a full program if including passenger and all-cargo that such charters can, and do, carry out operations, and scheduled, charter, or they meet the conditions described in procedures on a regular basis to address § 1544.101(a)(1) or (a)(2). Similarly, TSA other service, with a MTOW over 12,500 the security concerns at issue. The U.S. pounds, that do not operate under the would amend § 1544.101(h) to state that Department of Defense (DOD) and the full all-cargo program applies to full program (§ 1544.101(a)) or the full Federal agencies use private charter all-cargo program (§ 1544.101(h)), and aircraft operators that hold a FAA operations to transport persons and certificate under 14 CFR part 119 or part do not operate as a public aircraft as property in furtherance of their described in 49 U.S.C. § 40102 or as a 125. The limited program is for aircraft government missions. See 67 FR 41635 operators that have unique operations government charter under the definition (June 19, 2002). TSA is concerned, of private charter in § 1540.5 of this that do not fall within any other however, that the chartering government category of operations requiring a chapter. ‘‘Public aircraft’’ is defined in agency may not always understand that 49 U.S.C. 40102(37) as follows: security program under other sections of it would be responsible for security of part 1544. Nevertheless, the aircraft the operation. Unlike with public ‘‘public aircraft’’ means any of the following: operator adopts a security program for (A) Except with respect to an aircraft aircraft discussed above, a government its operations and TSA approves the described in subparagraph (E), an aircraft charter may be for a short duration, even security program and classifies it as a used only for the United States Government, one flight at a time, and thus normal limited program. except as provided in section 40125(b). safety regulations continue to apply. (B) An aircraft owned by the Government Accordingly, the rule would make clear Section 1544.103 Form, Content, and and operated by any person for purposes that TSA would exempt government Availability related to crew training, equipment charter operations from complying with Proposed § 1544.103 sets forth the development, or demonstration, except as the LASP, only if the government takes form, content, and availability provided in section 40125(b). security responsibility for the following: (C) An aircraft owned and operated by the requirements for the security programs government of a State, the District of (A) The aircraft; required under § 1544.101. There have Columbia, or a territory or possession of the (B) Persons onboard; and been standard security programs for United States or a political subdivision of (C) Property onboard. certain aircraft operators since 1976. one of these governments, except as provided See proposed § 1544.101(b)(3)(iv). If the TSA is proposing to recognize the use in section 40125(b). chartering government agency does not of standard security programs by TSA (D) An aircraft exclusively leased for at take responsibility for the security of the and aircraft operators in current least 90 continuous days by the government operation, the normal TSA requirements requirements for aircraft operators and of a State, the District of Columbia, or a would apply. proposed under part 1544. This territory or possession of the United States or a political subdivision of one of these proposed rule would clarify that each 31 FAA limits many of its regulations to operation particular operator’s security program governments, except as provided in section of civil aircraft, which do not include public 40125(b). aircraft. For example, see 14 CFR part 91, subpart would be the standard security program (E) An aircraft owned or operated by the E—Maintenance, Preventive Maintenance, and issued by TSA, together with any armed forces or chartered to provide Alterations. amendments and alternate procedures

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approved or accepted by TSA for that system, the operator would apply for an check against Dun & Bradstreet or a aircraft operator. amendment or alternate procedure to its similar commercial database and/or Currently, § 1544.103(c) lists the security program, which would describe governmental databases, such as the content requirements of a security the requirements and procedures for FAA’s Aircraft Registration Database. program for a full program aircraft using such devices or systems. For individuals who would be operator. The specific security identified as a proprietor, general Section 1544.105 Approval and regulations are set forth in part 1544, partner, officer, director, or owner in Amendments to the Security Program subpart C—Operations. TSA proposes to proposed section 1544.105(a)(1)(ii)(B), add new paragraphs (d), (e), and (f) to Aircraft operators that are required to TSA does not intend to use commercial describe the content requirements for adopt a security program under or publicly available data to determine full all-cargo and LASPs, respectively. § 1544.101 must apply for a security whether the individuals pose or may Also, TSA would amend paragraph (c) program from TSA. TSA provides the pose a threat to transportation or to add the new requirements of standard security program and may national security. For these individuals, proposed § 1544.241 regarding amend the program on its own TSA seeks comment on whether it volunteer emergency services for full initiative, or as requested by the aircraft should require these individuals to program operators. operator and approved by TSA. undergo the security threat assessment The content requirements for the full Similarly, TSA would provide large (STA) described in proposed part 1544, all-cargo security programs in proposed aircraft operators with a standard subpart G. TSA requests public paragraph (d) are essentially the same security program. At that time, the comment on these options and on other requirements in the current aircraft operator would be able to approaches that would achieve the § 1544.101(i), except for the addition of submit any amendment to their security desired result. proposed § 1544.241 concerning program to TSA for approval. If the TSA would also use the information volunteer emergency services. The aircraft operator fully accepts the to identify and contact aircraft and their content requirements for the LASP are standard TSA security program, they respective operators for operational or described in section II.A of the would not be required to submit any security reasons. preamble. The individual elements, not amendments to TSA. Accordingly, TSA The proposed rule would not change discussed in this section of the proposes to amend § 1544.105 to apply the process for amending a security preamble, are discussed in further detail to large aircraft operators. program, either by the aircraft operator in the section-by-section analysis of Unlike the full program and full all- or TSA. Proposed § 1544.105(f) would §§ 1544.202, 1544.205, 1544.206, cargo program operators, a large aircraft provide TSA with a mechanism to 1544.207, 1544.215, 1544.217, 1544.223, operator would need to submit withdraw its approval of an aircraft 1544.225, 1544.233, 1544.235, 1544.241, additional information, such as the operator’s security program pursuant to 1544.245, and subpart G. names, addresses, and phone numbers the procedures set forth in proposed The existing partial program and of the owners and aircraft operator § 1540.301. private charter program include a few security coordinator of the large aircraft, security measures that would not be and the FAA certificate number if the Section 1544.107 Fractional part of the LASP, because these aircraft operator holds an FAA Ownership of Large Aircraft measures would be unnecessary under certificate, when it submits its Proposed § 1544.107 addresses the LASP. First, the partial program application for approval of its security situations in which a large aircraft is requires that aircraft operators under program. Full program and full all-cargo under fractional ownership program that program participate in any airport- program operators hold certificates from under the FAA rules in 14 CFR part 91, sponsored exercise of the airport the FAA and DOT, and the Federal subpart K, for purposes of determining contingency plan in § 1544.301(c). Government has reviewed the operators, who would be the aircraft operator Currently, there are very few aircraft including their key personnel, in under proposed § 1544.101(b). We operators that hold a partial program connection with the certification propose to use essentially the same and are subject to § 1544.301(c). Also, processes; thus the operators are known requirements that apply in the FAA most large aircraft operators operate out to the Federal Government. Large rules for this purpose. See 14 CFR of GA airports that are not required to aircraft operators, however, are a diverse 91.1011. Each owner in operational have a contingency plan, including group of operators that range from control of a program flight would be those that TSA proposed to require to individuals who own and operate their ultimately responsible for safe adopt and carry out a partial program aircraft to large corporations that operations and for complying with all under proposed § 1542.103(c). Thus it operate aircraft using owned and/or applicable requirements, including would be unnecessary to require large leased aircraft. As a result, TSA would those related to security issues. An aircraft operators to participate in an need the additional information to owner would be considered in airport-sponsored exercise of the airport identify the owners and operators of operational control when the owner has contingency plan and to include this large aircraft and to evaluate their the legal rights to the aircraft, has security measure in the LASP. security programs for approval. directed that the aircraft carry TSA is also proposing not to include TSA believes that aviation security passengers or property designated by the requirements in §§ 1544.209 and will be enhanced if TSA conducts an the owner, and the aircraft is carrying 1544.211 regarding the use of metal analysis to determine whether operators those passengers or property. detection devices and X-ray systems of aircraft subject to this proposed Although TSA would consider each that are in the current private charter regulation are legitimate business owner as the aircraft operator, the owner program. Because private charter entities and whether their owners are would be able to delegate some or all of operators currently do not use these individuals who appear to pose a risk to the performance of the tasks associated devices or systems in their screening aviation security. Accordingly, TSA is with carrying out this security processes, it would be unnecessary to considering various options to achieve responsibility to the program manager. include those requirements in the LASP. the objective. For checking on whether For operations where the owner in If a large aircraft operator plans to use the aircraft operator is a legitimate operational control delegates a metal detection device or an X-ray business entity, TSA may rely on a performance of security tasks to the

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program manager, the TSA would propose to revise § 1544.202 to apply to these operators. This section originally consider the owner and the program aircraft operated under the LASP in an was written before TSA assumed the manager to be holding the security all-cargo operation and to remove the responsibility for all passenger and program jointly, and the owner and the references to the twelve-five program in checked baggage screening in the United program manager would be jointly and all-cargo operations. States and does not currently clearly individually responsible for state where TSA conducts the screening. Section 1544.205 Acceptance and compliance. In the event that a program TSA proposes to clarify this section. For Screening of Cargo manager manages multiple aircraft, the locations in the United States, each full program manager would have one large Section 1544.205 sets forth the program operator must not board a aircraft program that applies to all its requirements for screening cargo on full passenger, or load his or her accessible operations. program operations that carry cargo, full or checked property, unless TSA or a An owner would be considered not in all-cargo operations, and twelve-five all- TSA contractor has conducted the operational control when an aircraft is cargo operations. As with § 1544.202, necessary inspection. In locations used for a flight for administrative cargo under § 1544.205 is property outside of the United States where the purposes, such as demonstration, tendered for air transportation foreign country conducts the screening, positioning, ferrying, maintenance, or accounted for on an air waybill. As each full program operator must not crew training, and no passengers or discussed above, TSA would require board a passenger, or load his or her property that were designated by the operators of large aircraft that are all- accessible or checked property, unless owner are being carried. Further, if the cargo operations to screen persons, the foreign country has conducted the aircraft is operated under 14 CFR part accessible property, and cargo onboard necessary screening. TSA may require 121 or 135, then the owner would be the aircraft to prevent and deter the supplemental screening of some considered not to be in operational carriage of any unauthorized persons or passengers. In locations outside of the control. the unauthorized carriage of weapons or United States where the foreign country This approach to determining the explosives. Sections 1544.205(a), (b), does not conduct part or all of the party that would be considered the (d), and (f) would apply to all large required screening, each full program aircraft operator for purposes of the aircraft with an MTOW of over 12,500 operator must not board a passenger, or LASP is based on the FAA regulations pounds in all-cargo operations. load his or her accessible or checked found in 14 CFR part 91, subpart K, property, unless the operator or its Section 1544.206 Persons and Property regarding fractional ownership authorized representative has conducted on Board a Large Aircraft operations. TSA invites comments on the required screening. whether we should provide additional As discussed in section II.A of the Proposed § 1544.207(c) applies to full features of subpart K in these preamble, TSA proposes § 1544.206, all-cargo programs and to operations in regulations, such as the requirement in which would require aircraft operators a large aircraft with a MTOW over 14 CFR 91.1013 that the program operating under a large aircraft program 45,500 kilograms operated for manager brief the fractional owner. under § 1544.101(b) to apply security compensation or hire, which currently Section 1544.202 Persons and Property measures in its security program to are referred to as private charters. These Onboard All-Cargo Aircraft prevent or deter the carriage of aircraft operators are generally required unauthorized persons or unauthorized to conduct their own screening. They Current § 1544.202 requires each weapons, explosives, incendiaries, and would be required to follow the security aircraft operator operating under the full other destructive substances or items. procedures in their security programs all-cargo program and the twelve-five TSA also notes that 18 U.S.C. 922(e) and and the requirements in 49 CFR part program in all-cargo operations to apply (f) impose criminal penalties for the 1544, subpart E, regarding screener the security measures in their security unlawful transport or delivery of qualifications when the aircraft operator programs to persons who board the firearms or ammunition by any person conducts the screening. aircraft and their property. ‘‘Cargo’’ is or by common or contract carriers, In the event that the aircraft enplanes defined as property tendered for air respectively. or deplanes from a sterile area, the large transportation accounted for on an air aircraft operator would be required to waybill. Company materials and other Section 1544.207 Inspection of obtain an alternate procedure for its property not under an air waybill are Individuals and Property security program. not cargo; Rather, they are property that Current § 1544.207 describes which Section 1544.217 Law Enforcement would be subject to proposed entities conduct screening under which Personnel § 1544.206, as discussed in section II.A circumstances: TSA, a foreign of this preamble and below. government, or the aircraft operator. Section 1544.217 currently requires Section 1544.202 is intended to TSA is proposing to amend § 1544.207 aircraft operators under the partial prevent persons who may pose a to clarify which aircraft operator is program, the twelve-five program, the security threat from boarding and to subject to this section and which entity private charter program, and the full all- prevent or deter the carriage of any is responsible for conducting the cargo program to provide for law unauthorized persons and unauthorized required screening. enforcement personnel that meet TSA’s explosives, incendiaries, and other TSA would amend § 1544.207(a) to requirements. TSA proposes to replace destructive substances or items. This state clearly that this section applies to the referenced partial program, the provides the opportunity for aircraft full program operators, full all-cargo twelve-five program, and the private operators to conduct an on-site check of program operators, and operations in a charter program, with the LASP, persons and property for compliance, large aircraft with a MTOW over 45,500 requiring large aircraft operators to and provides TSA with the means to kilograms operated for compensation or perform the same duties required under perform security database checks. hire, as described in proposed § 1544.217. TSA proposes that large Section 1544.202 remains an important § 1544.103(f)(1). aircraft operators must provide their security measure for aircraft with Proposed § 1544.207(b) applies to full employees, including crewmembers, MTOW of over 12,500 pounds in all- program operators and is substantively current information regarding cargo operation. Consequently, we the same as the current requirements for procedures for obtaining law

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enforcement assistance, to enable them Because the statute limits these This exemption from liability to contact local law enforcement provisions to air carriers, TSA proposes provided in the statute is stated for personnel expeditiously in the event of to limit the application of § 1544.241 to information in proposed a security need. aircraft operators that hold an air carrier § 1544.241(b)(1). The statutory operating certificate under 14 CFR part exemption from liability applies only to Section 1544.223 Transportation of the three named groups above. The Federal Air Marshals 119. The statute provides that a qualified proposed rule in § 1544.241(b)(2) Current § 1544.223 requires that full individual shall not be liable for includes the statutory provision that the program operators and large aircraft damages in any action brought in exemption shall not apply in any case over 45,500 kilograms that operate for Federal or State court which arises from where an individual provides or compensation or hire under the act or omission of that individual in attempts to provide assistance in a § 1544.103(f) carry Federal Air Marshals providing or attempting to provide manner that constitutes gross negligence (FAMs). In this NPRM, TSA proposes to assistance in an in-flight emergency, or willful misconduct. The statute does add § 1544.223(g) to require other large absent gross negligence or willful not require the individual volunteer to aircraft operators not covered by misconduct. TSA must establish the identify himself or herself before § 1544.103(f)(1) to carry FAMs only requirements for qualifications of these departure to be subject to this upon notification by TSA. This would individuals. Consistent with the statute, exemption. Proposed § 1544.241(b)(3) affect mostly private/corporate aircraft TSA’s proposed regulation requires air states expressly that the exemption owners. The regulation change would carriers operating under a full program would apply regardless of whether the provide TSA with the ability to require to implement a method or a program for individuals identify themselves in these operators to put a FAM on board qualified individuals who are law advance of departure. The proposed rule a large aircraft, pursuant to prior enforcement officers, firefighters, or also makes clear that an individual need notification, if the need arises. TSA emergency medical technicians to not have his or her credentials with understands that maintaining the present their credentials to the carrier himself or herself at the time of confidentiality of the FAM onboard a and to give their consent to be called providing assistance for the exemption large aircraft may not be possible, and upon during an in-flight emergency. from liability to apply. For instance, if therefore TSA proposes to limit As required in the statute, a firefighter who did not volunteer § 1544.223(g) to those operating under a § 1544.241(b) sets out proposed before the flight as provided in full program or a LASP in an aircraft qualifications for the law enforcement paragraph (c), and who did not have his with MTOW over 45,500 kilograms. officers, firefighters, and emergency credentials with him, were to provide Section 1544.237 Flight Deck medical technicians who would be assistance in the case of an in-flight Privileges exempted from liability under the emergency, the statutory exemption statute and who would be able to from liability would apply. After the Section 1544.237(b) currently allows incident, to show that the exemption for access to the flight deck by FAA air volunteer under this section. TSA proposes that an individual is qualified applied, the firefighter may have to carrier inspectors, authorized establish that he was qualified as representatives of the National for purposes of this section if the individual is qualified under Federal, provided in paragraph (a), but the lack Transportation Safety Board, and U.S. of credentials present at the time of the State, local, or tribal law, or under the Secret Service agents. This NPRM emergency would not preclude the law of a foreign government, has valid proposes to amend § 1544.237(b) to application of the exemption. include Department of Defense (DOD) standing with the licensing or Proposed § 1544.241(c) contains the commercial air carrier evaluators who employing agency that produced the requirement for aircraft operators to may seek admittance to the aircraft credentials, and is a scheduled, on-call, implement a program for individuals flight deck. TSA proposes to amend paid, or volunteer employee, as one of who meet the qualifications in § 1544.237 to harmonize with FAA the following: paragraph (a) to volunteer, prior to regulations at 14 CFR 121.547. DOD 1. A law enforcement officer who is departure, to be called on by a commercial air carrier evaluators will an employee or authorized by the crewmember or flight attendant to assess the effectiveness of a carrier’s Federal, state, local or tribal government provide emergency services in the event operations department, including crew or under the law of a foreign of an in-flight emergency. The required coordination and safety awareness. DOD government, with the primary purpose procedures would include a check of evaluators are required to pre-arrange all of the prevention, investigation, the credentials of individuals flight deck evaluations. apprehension, or detention of identifying themselves pre-departure. individuals suspected or convicted of Under this program, TSA would not Section 1544.241 Voluntary Provision Government offenses. expect FAMs and LEOs who are flying of Emergency Services 2. A firefighter who is an employee, armed under § 1544.219 to volunteer to Congress has enacted statutory whether paid or a volunteer, of a fire assist in an emergency situation prior to provisions that provide certain department of any Federal, state, local, departure. Since the FAMs and LEOs exemptions from liability for qualified or tribe who is certified as a firefighter must identify themselves to the aircraft law enforcement officers, firefighters, as a condition of employment and operator prior to departure and must and emergency medical technicians whose duty it is to extinguish fires, to have taken appropriate training to fly who provide emergency services during protect life, and to protect property. armed, it is not necessary for the aircraft emergencies; and that directs TSA to 3. An emergency medical technician operator or the FAM or LEO to carry out establish a program to allow such who is trained and certified to appraise § 1544.241. The flight crew knows individuals to volunteer to provide such and initiate the administration of where each FAM and armed LEO is emergency services. 49 U.S.C. 44944. emergency care for victims of trauma or seated and is able to request their TSA has already incorporated this acute illness. We request comments on assistance if the need arises. The program into the AOSSP for full whether these are the appropriate statutory exemption from liability program operators and now proposes to qualifications to carry out the purposes would apply if a FAM or LEO were to codify the provisions in new § 1544.241. of the statute. assist during an emergency.

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Proposed § 1544.241 would not Subpart F—Watch-List Service Section 1544.503 Qualification preclude passengers from assisting in an Providers Standards for Approval emergency, even if they did not meet Proposed § 1544.503 would establish the qualifications in paragraph (a). We Under proposed § 1544.245, large aircraft operators would submit qualification standards for approval of note that any passenger may assist in an applicants to conduct watch-list emergency, and in the past, physicians, passenger information to watch-list service providers approved by TSA to matching. The applicant would need to nurses, and others have provided vital demonstrate the ability to receive conduct watch-list matching. Proposed help when needed, and they will passenger information from large part 1544, subpart F, sets forth the continue to be able to do so. aircraft operators and to conduct proposed requirements and procedures Generally, the aircraft operator will automated watch-list matching, for entities to obtain and maintain TSA determine whether to request assistance including using continuously updated approval to conduct watch-list and from whom to request it based on information from TSA, and to transmit all the circumstances and information matching. TSA would require watch-list the watch-list matching results to the available to the aircraft operator. For service providers to maintain high IT large aircraft operator in a secure instance, while the statute does not system security, to develop and manner. The applicant would be apply to doctors or nurses, if there is a implement a robust system capable of required to obtain an attestation from an medical emergency and the aircraft conducting automated watch-list independent public accounting (IPA) operator is aware that a doctor or a matching quickly and continuous firm that the system that the applicant nurse is on board, the aircraft operator vetting of master passenger lists, to would use to contain SSI and personally may request assistance of them instead protect personally identifiable identifiable information collected as of other individuals who may have information and sensitive security part of the watch-list matching process volunteered under this program. information, and to adopt and and to perform the necessary However, the statute limits liability implement a security program. Because transmissions and matching are in protection to qualified law enforcement of these requirements, TSA expects that compliance with the applicant’s officers, firefighters, and emergency limited number of entities would be approved system security plan and TSA medical technicians. State Good approved to be watch-list service standards. In addition, TSA would Samaritan Laws and other protections providers. TSA is also considering require the applicant to successfully may apply to other individuals, not whether to limit in the final rule the undergo a suitability assessment by mentioned in the statute, who assist in number of watch-list service providers TSA, and the applicant’s covered an emergency. that it would approve. This would personnel to successfully undergo a Additionally, in accordance with 49 preserve the security of the watch-list by security threat assessment by TSA. U.S.C. 44944(a), the aircraft operator restricting the distribution of the watch- Finally, TSA would require the must keep all information of the identity list to a small number of entities that applicant to be incorporated within the or personal information of the qualified would have access to the watch-list. United States, and the applicant’s individual confidential and must not TSA seeks comment on limiting the operations and systems for conducting provide such information to any number of entities that would be the watch-list matching to be located in individual, other than the appropriate approved watch-list service providers, the United States. Under this proposal, aircraft operator personnel. including what criteria would be used eligibility to be a watch-list service to determine which applicants would be provider would be limited to U.S. Section 1544.243 Third Party Audit approved and how many watch-list companies and U.S. subsidiaries of foreign corporations that are As discussed in section II.A of the service providers should be approved. For instance, TSA is considering criteria incorporated and located in the United preamble, proposed § 1544.243 would States. This requirement would lessen require a large aircraft operator to such as the level of IT system security, the type of watch-list matching system, the possibility that the SSI and the contract with a TSA-approved auditor to personally identifiable information that audit its compliance with the and the ability of the service provider to quickly conduct the service. would be part of the watch-list matching requirements of 49 CFR chapter XXII process would be exported to a foreign and its security program. The Section 1544.501 Scope and Terms country, which would limit the U.S. regulations include procedures for Used in This Subpart Government’s ability to protect that obtaining TSA approval and for information. The requirement would conducting audits. Subpart F would apply to watch-list also allow for better TSA oversight and service providers who conduct watch- Section 1544.245 Passenger Vetting for control over this watch-list matching list matching on behalf of large aircraft Large Aircraft Operators process. Because the watch-list operators. The definition of ‘‘applicant’’ matching process involves personally TSA would require large aircraft would mean the entity that is seeking identifiable information and SSI, TSA operators to contract with watch-list approval from TSA to conduct watch- seeks comments on whether to require service providers to conduct watch-list list matching for large aircraft operators. covered personnel to be U.S. citizens, matching of their passengers before ‘‘Large aircraft operators’’ are defined as U.S. nationals, or lawful permanent allowing them to board. Passengers those operators described in residents of the United States. determined to be on the No Fly list §§ 1544.101(b) or 1544.107. The final would not be able to board an aircraft. definition in proposed § 1544.501 is Section 1544.505 Application Proposed § 1544.245 establishes the ‘‘covered personnel.’’ This term would Proposed § 1544.505 would require procedures that large aircraft operators mean an employee, officer, principal, or every applicant to submit an application would be required to follow in order to program manager of the watch-list in a form and manner prescribed by comply with the requirements for service provider who collects, handles TSA. The application would include the watch-list matching. Section II.A of this or uses passenger information or watch- following: (1) Applicant’s full name, preamble provides a detailed discussion list matching results or who conducts business address, business phone, and of the requirements and process. watch-list matching. business email address; (2) a statement

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and other supporting documentation category system. NIST Special submitting a written petition to the providing evidence of the applicants’ Publication 800–53 contains Assistant Secretary or designee within abilities and satisfaction of the required implementation requirements for this 30 days of the notice of disapproval. qualifications; (3) a system security plan categorization. The petition for reconsideration would that would satisfy standards set forth by Under proposed §§ 1544.505 and need to include the applicant’s contact TSA; and (4) a security program that 1544.515, TSA would require watch-list information and any documentation that meets the requirements set out in service providers to submit a system the applicant believes may assist the § 1544.515. security plan as part of their application Assistant Secretary in making a final TSA proposes to require watch-list for TSA approval, and that system decision. The Assistant Secretary or service providers to adopt a system security plan would be part of the designee would also be able to request security plan that satisfies TSA watch-list service providers’ security additional information from the standards to ensure that watch-list program. TSA requests comments on applicant that may assist in disposing of service providers protect personally which standards and controls in the the petition. identifiable information and SSI. TSA NIST Special Publication 800–53 should standards would be based on the apply to watch-list service providers’ Section 1544.511 Withdrawal of National Institute of Standards and systems. TSA would develop the Approval Technology (NIST) Special Publication specific standards for the system Proposed § 1544.511 would state the 800–53, ‘‘Recommended Security security by reviewing all of the procedure for TSA to withdraw the Control for Federal Information standards and controls in NIST Special approval of the watch-list service Systems,’’ (NIST Special Publication Publication 800–53 and the comments provider if it ceases to meet the 800–53). The objective of NIST Special received in response to this NPRM. standards for approval, fails to fulfill its Publication 800–53 is to provide Based on its review, TSA would issue responsibilities, or if it is in the interest security controls that are consistent a system security plan template that of security or the public. If TSA decides with and complementary to other would incorporate the standards and to withdraw the approval of a service established security standards. The controls that TSA determines would be provider, TSA would provide the catalog of security controls provided in appropriate to require of the watch-list service provider with a written notice of NIST Special Publication 800–53 can be service providers for their systems, proposed withdrawal of approval, effectively used to demonstrate similar to the process that TSA used to which would include the basis of the compliance with a variety of develop the information systems withdrawal of approval. The initial governmental, organizational, or security standards for the Registered 32 notice would become a final notice of institutional security standards. NIST Traveler Interoperability Pilot. Watch- withdrawal of approval if TSA does not Special Publication 800–53 is a widely list service providers would have an receive a written petition of recognized body of security criteria for opportunity to comment on the template reconsideration within 31 days after the Federal systems. including the standards. service provider’s receipt of TSA’s TSA standards for the systems notice of proposed withdrawal of security plan would likely be organized Section 1544.507 TSA Review and approval. Except in an emergency, into three classes: Management, Approval Operational, and Technical. Section 1544.507 proposes procedures during the 31 days prior to the TSA’s Management controls would focus on for TSA’s review and approval of receipt of the written petition, the security systems program risk. applications to perform watch-list service provider would be able to Operational controls would address matching. Upon receipt of the continue conducting watch-list security methods of mechanisms that application, TSA would review the matching. Additionally, if the watch-list people (as opposed to systems) would application and might conduct a site service provider did file a timely written implement and execute. Technical visit of the applicant’s place of business petition for reconsideration, the service controls would manage security controls to determine whether the applicant provider would be able to continue that the watch-list service provider’s meets TSA’s qualifications. Upon final conducting watch-list matching, unless systems would execute. These controls review of the application by TSA, TSA and until the service provider receives would provide automated protection would notify the applicant of approval a final notice of withdrawal of approval. from unauthorized access or misuse, or disapproval by written notice. After Once the watch-list service provider facilitate detection of security TSA approves an application and received a final notice of withdrawal of violations, and support security receives an attestation report for an IPA approval, the service provider would requirements for applications and data. firm opining that the watch-list service not be able to continue conducting Furthermore, the NIST Federal provider’s system is in compliance with watch-list matching. Information Processing Standards its system security plan and TSA If TSA found an emergency situation Publication 199, ‘‘Standards for Security standards, the watch-list service requiring immediate withdrawal of the Categorization of Federal Information provider would be able to begin service provider’s approval, the and Information Systems,’’ February passenger vetting pursuant to the proposed rule would allow TSA to 2004, establishes security categories for regulations. withdraw the approval without prior both Federal information and notice. The emergency notice would Section 1544.509 Reconsideration of information systems. The security include the basis of the emergency Disapproval of an Application categories are based on potential impact withdrawal of approval and would be should certain events occur. Based on Proposed § 1544.509 would allow an effective upon receipt by the watch-list analysis of potential impacts, TSA applicant whose application has been service provider. As above, the service believes that security categorization for disapproved to petition for provider would be able to file a written confidentiality, integrity, and reconsideration of TSA’s decision by petition for reconsideration within 30 availability would be ‘‘High.’’ days of receipt of the emergency notice; Consequently, security controls that 32 ‘‘The Registered Traveler Security, Privacy and however, this would not stay the Compliance Standards for Sponsoring Entities and should be applied are those that are Service Providers,’’ including all appendices, is effective date of the emergency notice of commensurate with a High security available on TSA’s Web site at www.tsa.gov. withdrawal of approval.

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Section 1544.513 Responsibilities of Additionally, TSA would require watch- Subpart G—Security Threat Watch-List Service Providers list service providers to obtain periodic Assessments for Large Aircraft Flight Proposed § 1544.513 describes the attestation reports for the duration of Crew, Applicants to Become TSA- responsibilities of watch-list service their watch-list matching. TSA would Approved Auditors, and Watch-List providers under this part. These require watch-list service providers to Service Providers Covered Personnel responsibilities would ensure that the undergo an attestation every year and As stated in section II of the preamble, watch-list service providers are the IPA firm would submit an TSA proposes to require that flight conducting watch-list matching in a attestation report to TSA approximately crews for large aircraft operators, manner that is consistent with TSA 12 months after submission of the individuals authorized to perform standards and that protects personally previous attestation report. screening functions, applicants to identifiable information and SSI. Under become TSA-approved auditors, and Section 1544.515 Security Program proposed § 1544.513, watch-list service key employees to watch-list service providers would have the following Proposed § 1544.515 would set forth providers undergo a TSA security threat responsibilities: (1) Adopt and carry out the content requirements for a security assessment (STA). The STA would a security program that meets the program. These requirements would include fingerprint-based criminal requirements of proposed § 1544.515; ensure that watch-list service providers history records checks and other (2) comply with the system security have the capability and proper analyses, including checks of plan; (3) contract with an IPA firm to appropriate terrorist watch-lists and procedures to conduct watch-list perform periodic attestation of their other databases. The proposed matching under this subpart. Watch-list compliance with their systems security information required and the service providers would be required to plan and TSA standards, as explained in procedures used for the STA are very further detail below; (4) identify, adopt and carry out security programs similar to the procedures that apply to handle, and protect SSI in accordance that include the procedures for applicants for a hazardous materials with 49 CFR part 1520; (5) not disclose receiving passenger information from endorsement (HME) on their information received from or sent to the the aircraft operators, conducting watch- commercial driver’s licenses, or a aircraft operator or to TSA, unless list matching of the passengers, Transportation Worker Identification otherwise authorized by TSA; (6) allow including continuous vetting of Credential (TWIC) under 49 CFR part TSA to inspect watch-list service passengers, and transmitting the watch- 1572. The proposed rule would add providers to determine their compliance list matching results to the operator. The subpart G to part 1544 to set forth the with TSA regulations and their security security program would also contain requirements and procedures that programs; (7) adopt and make public a procedures for the service provider to would apply to these individuals. privacy policy; (8) provide contact TSA for resolution of passengers Section 1544.601 Scope and documentation establishing compliance who are potential matches to the watch- Expiration if requested by TSA; and (9) only use list. the watch-list for watch-list matching Because a watch-list service Subpart G would apply to flight crews under proposed part 1544, subpart F. provider’s system would contain of large aircraft operators, individuals Because watch-list matching involves authorized to perform screening personally identifiable information security and privacy issues, TSA functions, applicants to become TSA- about passengers and SSI, the security proposes to require watch-list service approved auditors, and key employees program would include various security providers to contract with a qualified of watch-list service providers that TSA requirements to protect this IPA firm to perform an attestation of would require to undergo security threat their compliance with their system information. These requirements assessments. The same requirements security plan and TSA standards. TSA include procedures for compliance with and procedures would apply to all of would consider an IPA firm qualified if the watch-list service provider’s system these individuals. However, flight crew their selection is consistent with the security plan, and procedures for the members or individuals authorized to American Institute of Certified Public physical security of the system used to perform screening functions who have Accountants’ (AICPA) guidance conduct watch-list matching. undergone a criminal history records regarding independence, and the firm Under proposed § 1544.515, TSA check under § 1544.229 or 1544.230 demonstrates the capability to assess would require service providers to would be grandfathered on a limited information system security and process provide personnel who are available to basis, such that they would not be controls. TSA would reserve the right to TSA 24-hours a day, 7-days a week. required to undergo a STA until five reject the IPA firm’s attestation if, in TSA would operate on a 24-hour basis, years after TSA provided the results of TSA’s judgment, the IPA firm is not and therefore TSA would require the their original CHRC. sufficiently qualified to perform these service providers to be available at all A Determination of No Security services. times for resolution of potential watch- Threat would be valid for five years TSA proposes to require that the IPA list matches. unless TSA withdraws the firm conduct the attestation in determination. Prior to the expiration of accordance with AICPA ‘‘Statement for The service provider would also be the five years, TSA would require flight Standards on Attestation Engagements’’ responsible for training its covered crew members, applicants to become No. 10 and TSA standards. TSA would personnel on the requirements in the TSA-approved auditors, and watch-list also require the IPA firm to prepare and TSA regulations and the security service providers’ key employees to submit a report, in a form and manner program. TSA training requirements reapply for a new STA to continue with prescribed by TSA. would also include topics related to their No Security Threat status. As stated above, TSA would require identifying, handling, and protecting watch-list service providers to obtain an SSI and personally identifiable Section 1544.603 Enrollment for attestation report prior to information, and the procedures used to Security Threat Assessments commencement of operations to perform the watch-list matching and to For TSA to conduct a comprehensive conduct watch-list matching. resolve any potential matches. STA, individuals would need to provide

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TSA with biographic information and (CJIS) to obtain any criminal history subsequently found not to meet TSA’s their fingerprints. TSA is proposing records that correspond to the criteria, TSA may withdraw its § 1544.603 to require individuals to fingerprints. Upon receipt of the results Determination of No Security Threat provide biographic and biometric from FBI/CJIS, TSA would adjudicate under proposed § 1544.613. information necessary for TSA to the results based on the disqualifying Section 1544.611 Final Disposition complete the fingerprint-based checks criminal offenses in § 1544.229(d). and other analyses. These applicants At times, a CHRC may result in data TSA proposes that after conducting a would provide the information that discloses an arrest for a CHRC and other analyses, it would necessary for enrollment, including disqualifying offense, but does not serve a Determination of No Security personal information such as gender provide a disposition for the offense. Threat if TSA determines that an and date of birth. The individual would be required to individual meets the STA standards. To ensure that correct and accurate provide further documentation that the TSA also proposes to serve an Initial information is provided to TSA, the arrest did not result in a disqualifying Determination of Threat Assessment on application would include, and the offense. A conviction of a disqualifying the individual if TSA determines that individual would sign, a statement offense would be reason to disqualify the individual does not meet the STA providing that the statements made on the individual. However, if the standards. The Initial Determination of the application are true, complete, and disposition did not result in a Threat Assessment would include the correct pursuant to penalty of law. TSA conviction, or in a finding of not guilty following: would also require the individual to by reason of insanity, of a disqualifying 1. A statement that TSA has include a statement that he or she has offense, the individual would then not determined that the individual poses, or not been convicted, or found not guilty be disqualified under this section, is suspected of posing, a security threat by reason of insanity, of any of the provided that the applicant explains warranting disapproval of the disqualifying crimes listed in how the arrest was resolved. application for which a STA is required; § 1544.229(d) during the 10 years before If the results received from the FBI 2. The basis for the determination; submission of the individual’s provide a reason for disqualifying the 3. Information about how the application. These are the same individual, TSA would notify the individual may appeal the disqualifying criminal offenses that individual of the disqualifying reasons. determination, as described in currently apply to flight crew members The individual may request a copy of § 1544.615; and under § 1544.230 and to many persons the record on which TSA’s 4. A statement that if the individual at airports under § 1542.209. The determination is based. The individual chooses not to appeal TSA’s Initial statement would also include language would be able to contact the FBI in Determination within 30 days after that the individual understands that he order to complete or correct his or her receipt of the Initial Determination, or or she must immediately inform TSA of record, if the individual contacts TSA does not request an extension of time any conviction of a disqualifying offense within 30 days of being notified that the within 30 days after receipt of the Initial that occurs while he or she is a TSA- FBI record disclosed a disqualifying Determination in order to file an appeal, approved auditor or a watch-list service offense. Otherwise, TSA would make a the Initial Determination becomes a provider. Final Determination of Threat Final Determination of Security Threat TSA anticipates that the individuals Assessment. Assessment. would provide their information though TSA also proposes to require a TSA also proposes to serve a an enrollment provider under contract continuing obligation of individuals Withdrawal of the Initial Determination with TSA. The enrollment provider who receive a Determination of No of Threat Assessment or a Withdrawal would verify the identity of the Security Threat, by requiring immediate of Final Determination of Threat individual, advise the individual that a notice (within 24 hours) to TSA of any Assessment on the individual, if the copy of the criminal record would be conviction of a disqualifying offense appeal results in a finding that the provided if requested, and identify a that occurs while he or she holds a individual does not pose a threat to point of contact for any questions the determination of no security threat that security. has not expired. individual may have, prior to Section 1544.613 Withdrawal of fingerprinting. The enrollment provider Section 1544.609 Other Analyses Determination of No Security Threat would then collect, control, and process the fingerprints of the individual and TSA proposes to conduct other TSA would be able to withdraw a submit the data and the application to analyses through domestic and Determination of No Security Threat at TSA. international government databases to any time under proposed § 1544.613, if confirm the individual’s identity and it determines that a TSA-auditor or Section 1544.605 Content of Security whether he or she poses a security watch-list service provider poses, or is Threat Assessment threat. These would include checks suspected of posing, a security threat TSA proposes that the STA would against terrorist-related and immigration warranting withdrawal of the include a criminal history records databases, as well as other governmental Determination of No Security Threat. If check, other analyses, and a final information sources such as those that TSA determines that the individual disposition. identify open wants and warrants. TSA does not meet the STA standards, TSA would adjudicate the results of all would serve a withdrawal of the Section 1544.607 Criminal History searches conducted including searches Determination of No Security Threat on Records Check that reveal extensive foreign or domestic the individual. The notice would As part of the security threat criminal convictions, convictions for a include the following: assessment, TSA proposes to perform a serious crime not listed in 49 CFR 1. A statement that TSA has CHRC. TSA would submit the 1572.103, or periods of foreign or determined that the individual poses, or fingerprints provided by the individuals domestic imprisonment that exceeds is suspected of posing, a security threat as part of the enrollment process to the 365 consecutive days. warranting disapproval of the Federal Bureau of Investigation’s (FBI) If an individual who has successfully application for which a STA is required; Criminal Justice Information Services undergone an initial security threat is 2. The basis for the determination;

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3. Information about how the TSA also proposes to serve a Section 1544.617 Fees individual may appeal the Withdrawal of Final Determination of determination; and Threat Assessment on the individual, if To comply with the mandates of sec. 4. A statement that if the individual the appeal results in a finding that the 520 of the 2004 DHS Appropriations chooses not to appeal TSA’s Initial individual does not pose a threat to Act, 2004 (Pub. L. 108–90, 117 Stat. Determination within 30 days after security. 1137, 1156, Oct. 1, 2003), TSA proposes receipt of the withdrawal of the to establish fees for individuals who are Determination of No Security Threat, or Section 1544.615 Appeals required to complete background does not request an extension of time If the individual appeals the Initial investigations under this program. within 30 days after receipt of the Determination of Threat Assessment or withdrawal of the Determination of No a Withdrawal of the Determination of Costs Security Threat to file an appeal, the No Security Threat as discussed above, TSA proposes that individuals withdrawal of the Determination of No the procedures in 49 CFR part 1515 required to undergo a STA would be Security Threat becomes a Final would apply. The section-by-section required to pay a fee to cover the Determination of Security Threat analysis of part 1515 discusses which following costs: Assessment. provisions of part 1515 would apply.

Operational year 1st year 2nd year 3rd year 4th year 5th year Total

Estimated Annual Applicants ...... 27,918 21,034 10,074 9,975 10,115 79,116 Cost Components Enrollment Costs...... $418,776 $315,507 $151,108 $149,626 $151,728 $1,186,745 Security Threat Assessment Cost FBI Criminal History Records Check ...... 481,592 362,833 173,774 172,070 174,488 1,364,757 Other analyses ...... 139,592 105,169 50,369 49,875 50,576 395,582 System Costs...... 0 0 0 0 0 0 Personnel Costs...... 579,593 579,593 579,593 579,593 579,593 2,897,965

Security Threat Assessment Cost-Subtotal ...... 1,200,777 1,047,594 803,736 801,539 804,657 4,658,303

Grand Totals ...... 1,619,553 1,363,102 954,844 951,164 956,385 5,845,049

1. Enrollment. Part of the fee for the other information sources so that TSA fingerprints and applicant information STA covers the cost for TSA or its agent would be able to determine whether the are appropriately linked and that TSA to enroll applicants, collect, format, and applicant poses a security threat that would be able to receive and act on the process the required information and to warrants denial of approval. The threat results of the STA. TSA would need to submit the information accordingly. The assessment would include an appeals have the necessary resources—including STA process would require individuals process for individuals who believe that labor, equipment, database access, and who apply for a STA to submit their the records upon which TSA bases its overhead—to complete the STA process. fingerprints and biographic information determination are incorrect. TSA estimates that the total cost of to TSA or its agent. Based on TSA’s As part of the STA, TSA would threat assessment services will be research of the costs of both commercial submit fingerprints to the FBI to obtain $4,658,303 over five years. This estimate and government fingerprint and any criminal history records that includes $1,364,757 for FBI criminal information collection services, as well correspond to the fingerprints. The FBI history records checks, $395,582 for as a prior competitive bidding and is authorized to establish and collect other analyses, and $2,897,965 for acquisition process for similar services, fees to process fingerprint identification personnel necessary to facilitate the TSA preliminarily estimates that the per records. See Title II of the Judiciary STA processing. These estimates are applicant cost to collect and transmit Appropriations Act, 1991 (Pub. L. 101– initial estimates and the final costs may fingerprints and other required data 515, Nov. 5, 1990, 104 Stat. 2112), be higher or lower depending on the electronically is likely to be $15. TSA codified in a note to 28 U.S.C. 534. final calculations which would be may adjust this estimated amount Pursuant to Criminal Justice Information discussed in the final rule. upwards or downwards in the final rule Services Information Letter 07–3 (Jun. 1, based on its final calculations of its 2007), this fee is currently set at $17.25, Population costs. This cost would also cover related effective October 1, 2007. If the FBI TSA estimates that approximately administrative support, help desk increases or decreases its fee to 79,116 applicants would be required to services, quality control, and related complete the criminal history records complete a STA during the first five logistics. check, the increase or decrease would years of the program. This estimate is 2. Security Threat Assessment. Part of apply to this regulation on the date that derived from the following population the fee for the STA covers the cost for the new FBI fee becomes effective. figures that have been gathered for TSA to conduct a STA. For the STA, TSA would need to implement and specific segments of the regulated each applicant’s information would be maintain the appropriate systems, population. checked against multiple databases and resources, and personnel to ensure that

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Operational year 1st year 2nd year 3rd year 4th year 5th year Total

Flight Crew Estimate* Part 91s ...... 19,440 16,189 5,427 5,503 5,580 52,139 Part 125s ...... 293 244 82 83 84 785 Part 135s...... 7,886 4,586 4,550 4,374 4,436 25,831

Flight Crew Estimate-Subtotal ...... 27,618 21,018 10,058 9,960 10,100 78,755 Third-Party Auditor Estimate ...... 150 8 8 8 8 180 Watch-list Service Provider Estimate ...... 150 8 8 8 8 182

Grand Total...... 27,918 21,034 10,074 9,975 10,115 79,116 * Cites are to FAA regulations, 14 CFR.

Total Fee watch-list service provider covered Determination of Threat Assessment, or TSA would charge a fee to recover its personnel of the results of the security a Withdrawal of an Initial or Final STA and other program management threat assessment under proposed Determination of No Security Threat. § 1544.619. This notification would and oversight costs associated with the Section 1515.5 Appeal of Initial allow aircraft operators or watch-list implementation of this rule. TSA Determination of Threat Assessment estimates that applicant charge would service providers to know whether an individual may be employed to perform Based on Criminal Conviction, be $74 per applicant. The estimate is Immigration Status, or Mental Capacity based on the following preliminary the functions that would require a calculations by TSA: the cost of services successful STA. Although TSA would Because the STAs for flight crew provided ($5,845,049) divided by the notify an aircraft operator or a watch-list members, individuals authorized to estimated population (79,116) receiving service provider that an individual perform screening functions, auditors, received a Final Determination of Threat the service would equal $74 per and watch-list service provider covered Assessment, TSA would not inform the applicant. As TSA continues to review personnel involve criminal history aircraft operator or watch-list service and develop the STA program for the records checks, TSA proposes to apply provider of the basis of that large aircraft program and to work to the procedures in § 1515.5 for these determination to protect the privacy of minimize all costs, some or all of its individuals to appeal an Initial that individual. preliminary calculations may change Determination of Threat Assessment TSA proposes to require aircraft based on a disqualifying criminal resulting in an increase or decrease of operators and watch-list service the per applicant cost. In the final rule, offense. providers to retain the notification of An individual would be able to TSA will publish the fee based on its the results of the STA for five years. The final calculations, and the fee may appeal an Initial Determination of notification would serve as Threat Assessment under § 1515.5 if he remain $74 or it may be more or less. documentation that an individual has TSA proposes to establish the $74 fee asserts that he does not have a undergone a STA if the aircraft operator disqualifying criminal offense. These to recover all enrollment costs and STA or watch-list service provider is asked to costs. As part of the $74 fee, TSA would procedures would also apply to appeals produce such documentation as part of of a Withdrawal of Determination of No collect the current FBI Fingerprinting an audit or inspection. Fee of $17.25 for the criminal history Security Threat based on a disqualifying records checks in the STA process and Part 1515—Appeals and Waiver criminal offense. An individual would forward the fee to the FBI. If the FBI Procedures for Security Threat initiate an appeal by providing TSA increases or decreases that fee in the Assessment for Individuals with a written request for the releasable future, TSA would collect the increased For individuals who may want to materials upon which the Initial or decreased fee. appeal an Initial Determination of Determination was based, or by serving Additionally, pursuant to the Chief Threat Assessment, a Final TSA with a written reply to the Initial Financial Officers Act of 1990 (Pub. L. Determination of Threat Assessment, or Determination. The individual would be 101–576, Nov. 15, 1990, 104 Stat. 2838), a Withdrawal of an Initial or Final required to serve TSA with the written DHS is required to review fees no less Determination of Threat Assessment, request for the releasable material or the than every two years. 31 U.S.C. 3512. TSA proposes to apply the appeals written reply with 60 days after the date Upon review, if it is found that the fees procedures in current part 1515. These of service of the Initial Determination. are either too high (i.e., total fees exceed are the same procedures that apply to TSA’s response would be due no later the total cost to provide the services) or applicants for a hazardous materials than 60 days after the individual is too low (i.e., total fees do not cover the endorsement on their commercial served with a written request or the total costs to provide the services), the driver’s license or a Transportation written reply. fee would be adjusted. Finally, TSA Worker Identification Credential under In response, TSA cannot provide any would be able to adjust the fees for 49 CFR part 1572, or for certain air cargo classified information, as defined under inflation following publication of the workers under 49 CFR part 1540, 6 CFR part 7 (DHS Classified National final rule. If TSA were to adjust the fees subpart C. Security Information); or under E.O. for this reason, TSA would publish a 12958, Classified National Security Section 1515.1 Scope Notice in the Federal Register notifying Information, as amended by E.O. 13292 the public of the change. TSA proposes to add individuals (68 FR 15315, Mar. 28, 2003); and E.O. subject to proposed part 1544, subpart G 12968, Access to Classified Information, Section 1544.619 Notice to Employers to the scope of part 1515 to provide (60 FR 40245, Aug, 7, 1995); or any TSA would notify employers of flight these individuals with a process to other information or material protected crew members, individuals authorized appeal an Initial Determination of from disclosure by law. Classified to perform screening functions, and Threat Assessment, a Final national security information is

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information that the President or has reviewed the Initial Determination, the individual fails to file an appeal to another authorized Federal official has the materials upon which the Initial an administrative law judge (ALJ) under determined, pursuant to E.O. 12958, as Determination was based, the reply, if § 1515.11. amended, and E.O. 12968, must be any, and other available information Further, because other analyses are protected against unauthorized and has determined that the individual often based on classified and other disclosure to safeguard the security of has a disqualifying criminal offense. For sensitive information, there would be American citizens, the country’s purposes of judicial review, a Final limits on what TSA would release in democratic institutions, and America’s Determination based on a disqualifying response to a request for materials. If participation within the community of criminal offense is a final TSA order. TSA determines that an applicant who nations. See 60 FR 19825 (Apr. 20, If TSA determines that the individual is appealing the other analyses is 1995). E.O. 12958, as amended, and E.O. does not have a disqualifying criminal requesting classified materials, TSA 12968 prohibit Federal employees from offense, TSA would serve a Withdrawal would deny the request for classified disclosing classified information to of the Initial Determination on the information. individuals who have not been cleared individual and a Determination of No The denial of access to classified to have access to such information Security Threat on the individual’s information under these circumstances under the requirements of that E.O. See employer if the individual is a flight is also consistent with the treatment of also 6 CFR part 7. If TSA determines crew member, an individual authorized classified information under the that an applicant is requesting classified to perform screening functions, or a Freedom of Information Act (FOIA), materials, TSA would deny the request watch-list service provider covered which specifically exempts such for classified information. personnel. information from the general In the written reply to the Initial As noted above, TSA is proposing to requirement under FOIA that Determination, the individual should apply to flight crew members, government documents are subject to explain why he or she is appealing the individuals authorized to perform public disclosure. 5 U.S.C. 552(b)(1). Initial Determination and provide screening functions, auditors, and Similarly, under 49 U.S.C. 114(s), the evidence that the Initial Determination watch-list service provider covered Assistant Secretary of TSA shall, was incorrect. In an applicant’s reply, personnel the same disqualifying notwithstanding the FOIA statute, TSA would consider only material that criminal offenses that now apply to prescribe regulations prohibiting the is relevant to whether he or she meets certain other aviation workers under 49 public disclosure of information that the standards for the STA. If an CFR 1542.209 and 1544.229. These would be detrimental to the security of individual does not dispute or reply to sections are based on a statutory transportation. Information that is the Initial Determination, the Initial provision, 49 U.S.C. 44936. The appeal designated as SSI must only be Determination would become a Final process in § 1515.5 addresses whether disclosed to people with a need to Determination of Threat Assessment. or not the applicant has a disqualifying know, such as those needing to carry An individual would have the criminal offense, that is, whether the out regulatory security duties. 49 CFR opportunity to correct a record on applicant has a conviction or a finding 1520.11. The Assistant Secretary has which an adverse decision is based. As of not guilty by reason of insanity of one defined information concerning threats long as the record is not classified or or more of the crimes listed in the rule against transportation as SSI by protected by law from release, TSA within the time specified in the rule. If regulation. See 49 CFR 1520.5. Thus, would notify the applicant of the the individual does have a disqualifying information that TSA obtains indicating adverse information and provide a copy criminal offense, there is no waiver. that an applicant poses a security threat, of the record. If the individual wishes to Accordingly, the waiver provisions that including the source of such correct the inaccurate information, he or apply to applicants for an HME or a information and the methods through she would need to provide written proof TWIC in § 1515.7 would not apply. which the information was obtained, that the record is inaccurate. The will commonly be at least SSI and may Section 1515.9 Appeal of Security individual should contact the be classified information. The purpose Threat Assessment Based on Other jurisdiction responsible for the of designating such information as SSI inaccurate information to complete or Analyses is to ensure that persons who seek to correct the information contained in the The STA for flight crew members, harm the transportation system do not record. The individual would be individuals authorized to perform obtain access to information that will required to provide TSA with the screening functions, auditors, and key enable them to evade the government’s revised record or a certified true copy of employees of watch-list service efforts to detect and prevent their the information from the appropriate providers would also include other activities. Disclosure of this entity before TSA can reach a analyses, including checks of information, especially to an individual determination that the applicant does appropriate terrorist watch-lists and specifically suspected of posing a threat not pose a security threat. related databases under proposed to the transportation system, is precisely In considering an appeal, the § 1544.609. TSA proposes to use the the type of harm that Congress sought to Assistant Secretary would review the appeals procedures in § 1515.9 for avoid by authorizing the Assistant Initial Determination, the materials individuals who wish to appeal an Secretary to define and protect SSI. upon which the Initial Determination is Initial Determination of Threat Other pieces of information also are based, the applicant’s reply and other Assessment or a withdrawal of a protected from disclosure by law due to materials or information available to Determination of No Security Threat their sensitivity in law enforcement and TSA. The Assistant Secretary would be based on the other analyses. intelligence. In some instances, the able to affirm the Initial Determination The procedures in § 1515.9 are similar release of information about a particular by concluding that an individual poses to the procedures in § 1515.5. However, individual or his or her supporters or a security threat. If this occurs, TSA unlike a Final Determination of Security associates could have a substantial would serve a Final Determination of Threat Assessment based on a adverse impact on security matters. The Threat Assessment on the applicant. disqualifying criminal offense, a Final release by TSA of the identities or other The Final Determination would include Determination based on other analyses information regarding individuals a statement that the Assistant Secretary would not be a final TSA order unless related to a security threat

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determination could jeopardize sources by substantial evidence on the record or section 3507(d), obtain approval from and methods of the intelligence that the decision was not supported by the Office of Management and Budget community, the identities of substantial evidence on the record. If (OMB) for each collection of confidential sources, and techniques neither party requests a review of the information it conducts, sponsors, or and procedures for law enforcement ALJ’s decision, TSA would issue a final requires through regulations. investigations or prosecution. See 5 order either granting or denying the This proposed rule contains amended U.S.C. 552(b)(7)(D) and (E). Release of waiver or the appeal. information collection activities subject such information also could have a Either TSA or the individual would to the PRA. TSA is revising a collection substantial adverse impact on ongoing be able to petition for review of the that OMB has previously approved and investigations being conducted by ALJ’s decision to the TSA Final assigned OMB Control Number 1652– Federal law enforcement agencies, by Decision Maker. The TSA Final 0003 (Aircraft Operator Security). revealing the course and progress of an Decision Maker would issue a written Accordingly, TSA has submitted the investigation. In certain instances, decision within 60 calendar days after following information requirements to release of information could alert co- receipt of the petition or within 30 days OMB for its review. conspirators to the extent of the Federal of receipt of the other party’s response, Title: Large Aircraft Security Program. investigation and the imminence of if a response is filed, unless a longer Summary: TSA proposes to amend their own detection, thus provoking period is required. The TSA Final current aviation transportation security flight. Decision Maker may issue an regulations (49 CFR part 1544) to For the reasons discussed above, TSA unclassified opinion to the parties and enhance and improve the security of GA would not provide classified a classified opinion to TSA. For by issuing this NPRM that would information or SSI to an individual, and purposes of judicial review, the decision require revisions to a currently TSA reserves the right to withhold SSI of the TSA Final Decision Maker would approved information collection. or other sensitive material protected be a final agency order. Through this NPRM, TSA is proposing from disclosure under law. As noted the following seven required above, TSA expects that information Part 1550—Aircraft Security Under information collections in addition to would be withheld only for General Operating and Flight Rules those already approved under this OMB determinations based on § 1572.107, Section 1550.5 Operations Using a control number: (1) Require security which list databases that indicate Sterile Area programs for all operators of aircraft that potential terrorist activity or threats. have a maximum certificated takeoff TSA proposes to remove the reference The procedures for appeals of Initial weight of over 12,500 pounds, except Determination of Threat Assessment to scheduled passenger operations, for aircraft operators under a full would also apply to appeals of a public charter passenger operations, and program, full all-cargo program, limited Withdrawal of Determination of No private charter passenger operations, program, or certain government aircraft Security Threat. and replace the language with ‘‘aircraft (‘‘large aircraft’’); (2) require that aircraft operators that have a security program’’ operator flight crews, individuals Section 1515.11 Review by to maintain consistency between authorized to perform screening Administrative Law Judge and TSA regulations. TSA also proposes to delete functions, TSA-approved auditors, and Final Decision Maker the compliance date section since the TSA-approved watch-list service An individual who has received an date has passed. Operators that must providers’ key personnel undergo STAs Initial Determination of Threat follow this section should currently be that include a fingerprint-based criminal Assessment or a withdrawal of adhering to the applicable regulations. history records check; (3) require large Determination of No Security Threat Section 1550.7 Operations in Aircraft aircraft operators to submit to an based on the other analyses under Over 12,500 Pounds independent, third-party audit § 1544.609 would first appeal that conducted by TSA-approved auditors determination using the procedures in TSA proposes to amend references to (i.e., large aircraft operators would be § 1515.9. If after that appeal TSA ‘‘12,500 pounds or more,’’ and replace required to maintain records, and continues its determination that the the language with ‘‘over 12,500 pounds’’ provide auditors access to their records, applicant is not qualified, the applicant to maintain consistency between equipment, and facilities necessary for would be able to seek review by an ALJ regulations. The proposed changes the auditor to conduct an audit); (4) under § 1515.11. would provide that § 1550.7 only require TSA oversight of auditors (i.e., The procedures would provide an applies to aircraft over 12,500 pounds, TSA-approved auditors would submit to individual with 30 calendar days from excluding operations specified in § any TSA inspection, include copying of the date of service of the determination 1550.5 and operations under a security their records, to determine their to request a review. An ALJ who program under part 1544 and 1546. The compliance with TSA regulations); (5) possesses the appropriate security aircraft that remain subject to this require large aircraft operators to clearances to review classified regulation are the foreign aircraft with transmit passenger information to TSA- information would conduct the review. an MTOW of over 12,500 pounds that approved watch-list service providers to Section 1515.11 provides detailed are not an all-cargo operation or are conduct watch-list matching against the requirements for the conduct of the under a security program under part No-Fly and Selectee Lists; (6) require review, such as information that 1546. auditors and watch-list service individuals must submit, requests for IV. Regulatory Requirements providers to submit applications to extension of time, and the duties of the become TSA-approved; and (7) require ALJ. A. Paperwork Reduction Act watch-list service providers to submit Within 30 calendar days after the The Paperwork Reduction Act of 1995 security programs for approval. conclusion of the hearing, the ALJ (PRA) (44 U.S.C. 3501, et seq.) requires Use of: The LASP requirement would would issue an unclassified decision to that TSA consider the impact of replace some existing security programs the parties. The ALJ may issue a paperwork and other information for large aircraft operators and would classified decision to TSA. The ALJ may collection burdens imposed on the include additional GA operators, such decide that the decision was supported public and, under the provisions of PRA that TSA would apply consistent

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security procedures to operators of large only once. Watch-list service providers TSA is soliciting comments to— aircraft. TSA would use the identifying also would be required to submit a (1) Evaluate whether the proposed information and fingerprints collected security program to TSA once, and information requirement is necessary for from flight crew members, auditors, and would be required to ensure their the proper performance of the functions key employees of TSA-approved watch- covered personnel undergo a STA of the agency, including whether the list service providers to conduct STAs conducted by TSA once every five information will have practical utility; that include a criminal history records years. Auditors would be required to (2) Evaluate the accuracy of the check. The TSA-approved auditors submit an audit report to the aircraft agency’s estimate of the burden; would review and inspect the records operator and to TSA for every audit that (3) Enhance the quality, utility, and aircraft operators would be required to they perform. clarity of the information to be maintain to demonstrate compliance Annual Burden Estimate: TSA is collected; and with TSA requirements during their amending this information collection to (4) Minimize the burden of the audits. TSA would inspect the records reflect the addition of approximately collection of information on those who maintained by the auditors to determine 9,544 new respondents, as well as new are to respond, including using their compliance with TSA regulations collection burdens, for an estimated appropriate automated, electronic, and to ensure that auditors have the total 10,374 respondents. Over three mechanical, or other technological qualification to produce useful audits to years, the new population includes collection techniques or other forms of TSA and the aircraft operators. The 9,363 new large aircraft operators, 166 information technology. watch-list service providers would use TSA-approved auditors, and 15 watch- Individuals and organizations may the passenger information transmitted list service providers. TSA estimates submit comments on the information by the aircraft operators to conduct that the large aircraft operators would collection requirements by December watch-list matching against the No Fly spend approximately 1 million hours 29, 2008. Direct the comments to the and Selectee Lists. TSA would use the annually establishing and/or address listed in the ADDRESSES section applications submitted by auditors and maintaining appropriate security of this document, and fax a copy of watch-list service providers to ensure programs, completing passenger watch- them to the Office of Information and the entities are eligible and qualified. list matching in the prescribed manner, Regulatory Affairs, Office of TSA would require watch-list service completing STAs on flight Management and Budget, Attention: providers to adopt and carry out a crewmembers, and completing third DHS–TSA Desk Officer, at (202) 395- security program to ensure that they are party audits of established security 5806. A comment to OMB is most taking appropriate security measures programs. effective if OMB receives it within 30 and are consistent and accurate in TSA estimates that the TSA-approved days of publication. TSA will publish performance of their duties. auditors would spend approximately the OMB control number for this Respondents (including number of): 19,660 hours annually, with an annual information collection in the Federal The likely respondents to this proposed 4,990 responses, submitting application Register after OMB approves it. information requirement are: operators materials and profiles, completing STAs As protection provided by the of aircraft that have a maximum on their employees, and writing up their Paperwork Reduction Act, as amended, certificated takeoff weight of over findings and submitting copies to the an agency may not conduct or sponsor, 12,500 pounds, except for aircraft aircraft operator and TSA. TSA and a person is not required to respond operators under a full program, full all- estimates that the total annual hour to, a collection of information unless it cargo program, limited program, or burden for watch-list service providers displays a currently valid OMB control certain government aircraft (‘‘large would be approximately 88 hours, number. aircraft’’); individuals authorized to which includes submitting application perform screening functions; entities materials (including a security program B. Regulatory Impact Analyses seeking to become TSA-approved and profile information) and conducting 1. Regulatory Evaluation Summary auditors; and entities seeking to become STAs on their employees in order to TSA-approved watch-list matching receive TSA approval. Changes to Federal regulations must service providers and key personnel. TSA is also amending the cost burden undergo several economic analyses. Frequency: The proposed for this information collection to reflect First, Executive Order 12866, Regulatory recordkeeping requirements would be an expanded respondent population and Planning and Review (58 FR 51735, ongoing and continuous. The new information collection costs. As a October 4, 1993), directs each Federal requirement that operators ensure their result of the LASP, non-AOSSP agency to propose or adopt a regulation flight crewmembers, other employees, operators would be required to pay fees only upon a reasoned determination and individuals authorized to perform to submit passenger information to that the benefits of the intended screening functions undergo a security watch-list service providers, conduct regulation justify its costs. Second, the threat assessment, which includes a security threat assessments on their Regulatory Flexibility Act of 1980 (5 criminal history records check, would flight crew members and individuals U.S.C. 601, et seq., as amended by the be a frequency of every five years. The authorized to perform screening Small Business Regulatory Enforcement aircraft operators would be required to functions, and contract with TSA- Fairness Act (SBREFA) of 1996) requires transmit passenger information to approved auditors. TSA-approved agencies to analyze the economic watch-list service providers to conduct auditors and watch-list service impact of regulatory changes on small watch-list matching on a per flight basis. providers would also pay fees to entities. Third, OMB directs agencies to The watch-list service providers would conduct STAs on their employees. In assess the effect of regulatory changes be required to report matches to the total, these requirements would add on international trade. Fourth, the Federal watch-list as matches occur. $10.5 million to the average annual cost Unfunded Mandates Reform Act of 1995 Individuals and firms desiring to of this information collection, bringing (2 U.S.C. 1531–1538) requires agencies become TSA-approved auditors as well the total annual cost of the information to prepare a written assessment of the as firms seeking approval to become collection (which includes costs to costs, benefits, and other effects of watch-list service providers would be AOSSP aircraft operators) to $12.9 proposed or final rules that include a required to send TSA an application million. Federal mandate likely to result in the

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expenditure by State, local, or tribal 2. Executive Order 12866 Assessment destruction (WMD) by an aircraft of the governments, in the aggregate, or by the Benefits type affected by the proposed rule. The private sector, of $100 million or more The proposed rule would yield conclusions of this DHS research are annually (adjusted for inflation). benefits in the areas of security and consistent with results from existing TSA has prepared a separate detailed quality governance. The security and academic and think tank research into analysis document, which is available to governance benefits are four-fold. First, similar issues. the public in the docket. With respect to the rule would enhance security by In order to compare the losses these analyses, TSA provides the expanding the mandatory use of associated with each scenario to the cost following conclusions and summary security measures to certain operators of of the proposed rule, TSA converted casualties into a monetary total. TSA information. large aircraft that are not currently used the Value of a Statistical Life (VSL) • TSA has determined that this is an required to have a security plan. These measures would deter malicious of $5.8 million that is used by the economically significant rule within the individuals from perpetrating acts that Department of Transportation (DOT), definition of E.O. 12866, as estimated might compromise transportation or and which was recently revised to annual costs or benefits exceed $100 national security by using large aircraft reflect current academic and other million in any year. The mandatory 33 for these purposes. Second, it would research into this quantity. The VSL OMB Circular A–4, Regulatory Analysis, harmonize, as appropriate, security represents an individual’s willingness to accounting statement is included in the measures used by a single operator in its pay to avoid a fatality onboard an separate complete analysis and is not various operations and between aircraft, based on economic studies of repeated here. different operators. Third, the new the value individuals place on small • As a normal practice, we provide periodic audits of security programs changes in risk. Similarly, based on the the Initial Regulatory Flexibility would augment TSA’s efforts to ensure same DOT guidance, TSA valued Analysis (IRFA) to the public, but that large aircraft operators are in moderate injuries at 1.55 percent of the withhold the final formal certification of compliance with their security VSL and severe injuries at 18.75 percent determination as required by the RFA programs. Finally, it would consolidate of the VSL. TSA emphasizes that the until after we receive public comments the regulatory framework for large VSL is a statistical value of a unit and publish the Final Regulatory aircraft operators that currently operate decrease in expected fatalities to be Flexibility Analysis. The IRFA reflects under a variety of security programs, used for regulatory comparison, and substantial gaps in data where TSA was thus simplifying the regulations and does not suggest that the actual value of unable to identify either impacted allowing for better governance. When a particular individual’s life can be entities or revenues for those that are taken together, the security-related stated in dollar terms. businesses. TSA has provided the benefits would act as part of the larger The following paragraphs present a analysis based upon available data and benefits yielded by TSA’s layered description of the four scenarios requests public comment on all aspects security approach. considered by TSA with corresponding of the analysis. As a result, TSA makes At this time, TSA cannot quantify estimates of their monetary no preliminary finding as to whether these benefits; however, TSA conducted consequences. These scenarios make up there is or is not a significant impact on a ‘‘break-even’’ analysis to determine a wide range of possible consequences, a substantial number of small what reduction of overall risk of a terror which reflects the varied opportunities businesses. attack and resulting reduction in the for attack and targeting that may exist for those intent on doing the nation • The Trade Agreement Act of 1979 expected losses for the nation due to a terror attack would be necessary in harm. In order to compare direct costs prohibits Federal agencies from to direct benefits, TSA presents only the establishing any standards or engaging order for the expected benefits of the rule to exceed the costs. Because the direct economic losses estimated to in related activities that create types of attacks that would be prevented result from the attack scenarios and has unnecessary obstacles to the foreign by this regulation vary widely in their omitted economic ‘‘ripple effects’’ and commerce of the United States. intensity and effects, depending both on economic transfers from its calculations. Legitimate domestic objectives, such as the intent of those undertaking the Scenario 1 contemplates a situation safety, are not considered unnecessary attack and their effectiveness in where a large aircraft is used as a obstacles. The statute also requires completing it, TSA considered three missile to attack an unpopulated or consideration of international standards example attack scenarios and the lightly populated area, resulting in and, where appropriate, that they be the monetized losses associated with each. minimal loss of life, moderate injuries basis for U.S. standards. TSA has Similar break-even analyses have been and destruction of the aircraft. Of the assessed the potential effect of this undertaken in support of other DHS scenarios considered, this is the most notice of proposed rulemaking and has rules, and TSA has coordinated the restrained in its level of envisioned determined this rule would not have an current analysis with these earlier ones, harm. It is assumed that a loss of 3 lives adverse impact on international trade. with the aim of maintaining consistency occurs, along with 10 moderate injuries • The regulatory evaluation provides in DHS analyses and results. In the case and the complete hull loss of the the required written assessment of of the LASP proposed rule, some of the aircraft. Using the DOT VSL of $5.8 Unfunded Mandates. The proposed rule types of terror attacks that might be million, the monetary estimate is not likely to result in the expenditure undertaken using aircraft operated by associated with the loss of life is $17.4 by State, local, or tribal governments, in those covered under the proposed rule million. Again using DOT guidance, the aggregate, of $100 million or more are similar to those that were considered moderate injuries to those affected are annually (adjusted for inflation). by U.S. Customs and Border Protection valued at 1.55% of the VSL, or $89,900. However, because the rule is (CBP), and this similarity has informed To estimate the value of the lost aircraft, economically significant as defined by the current analysis and examples. For 33 E.O. 12866, it does have an unfunded U.S. Department of Transportation one scenario, however, TSA has relied memorandum, Treatment of the Economic Value of mandate impact on the economy as a on DHS research into the effects of a Statistical Life in Departmental Analyses. Office whole. successful delivery of a weapon of mass of the Secretary of Transportation, February 5, 2008.

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TSA used $9.3 million, which is the missile to carry out a direct attack on a the direct consequences of an attack of 2008 average market value of a General building in a densely populated urban this severity. This value falls in the Aviation jet aircraft weighing between area. Because of these locational details, midrange of the values developed in the 12,500 and 65,000 pounds.34 Taken a successful attack would result in DHS research, and is consistent with together, the monetary consequence of much more severe consequences, results obtained from a review of this scenario totals $32 million, or including significantly increased loss of academic and think tank research into $0.032 billion. life and widespread real property the consequences of nuclear and Scenario 2 also contemplates a damage, compared to Scenario 1. For bioterror attacks on urban areas. The situation where a large aircraft is used valuation purposes for this scenario, value of $1 trillion results from loss of as a missile to attack a populated area, TSA assumes 3,000 fatalities, valued at life in an attacked urban area in the resulting in significantly greater loss of $17.4 billion using the DOT VSL of $5.8 hundreds of thousands and enormous life and injuries, and destruction of the million. To maintain consistency with loss of property and productive assets. existing DHS analyses, in particular the aircraft. It is assumed that a loss of 250 Figure 1 below displays the impacts lives occurs, along with 250 severe APIS analysis,36 TSA assumes property losses totaling $21.8 billion; this total is and monetary consequences identified injuries and the complete hull loss of for each of these scenarios. TSA the aircraft. Using the DOT VSL of $5.8 motivated by comparison to the City of compared the monetary consequence million, the monetary estimate New York Comptroller’s estimate of from a successful attack with the cost of associated with the loss of life is $1.45 direct losses to the city due to the the proposed LASP. To judge the value billion. Again using DOT guidance, September 11 attacks.37 However, TSA or effectiveness of the LASP proposed severe injuries to those affected are also assumes that 9,000 severe injuries rule in the context of these scenarios, it valued at 18.75% of the VSL, or $1.1 would also result from such an attack. is necessary to compare the extent of million, the monetary impact of these These severe injuries, valued at 18.75% monetary consequence from a injuries total $272 million. To estimate of the VSL based on the DOT guidance, successful attack with the cost of a the value of the lost aircraft, TSA used have a monetary valuation of $9.79 program like LASP that would be $9.3 million, which is the 2008 average billion. Finally, based on the FAA deployed to reduce the risk or market value of a General Aviation jet estimate of aircraft value, losses in aircraft weighing between 12,500 and Scenario 3 include $9.3 million due to likelihood of such an attack being 65,000 pounds. Taken together, the complete hull loss of the aircraft used in successfully undertaken. The annual monetary consequence of this scenario the attack. The scenario elements risk reductions required for the totals $1.73 billion. The level of damage aggregate to a total consequence of $49.0 proposed rule to break even under each in this type of scenario is consistent billion. of the four scenarios are presented with the scenarios considered for the Finally, Scenario 4 contemplates a below. In this analysis the comparison CBP APIS Final Rule analysis, although catastrophic situation in which a large is made between the estimated scenario the current analysis also includes a aircraft is used to deliver a nuclear or consequence and the LASP discounted component of severe injuries.35 biohazard device to an urban center. annualized cost of $194.1 million, using Scenario 3 contemplates a situation The costs associated with a scenario a discount rate of 7%; the ‘‘required risk where a large aircraft is used as a such as this have been examined by reduction’’ for breakeven is simply the DHS in detail for a nuclear device.38 ratio between this annualized program 34 Federal Aviation Administration. 2007. This research concludes that the cost and the scenario consequence total. Economic Values for FAA Investment and consequences of such an event would be As shown, depending on the attack Regulatory Decisions, A Guide. Prepared by GRA, immense, with a wide range of scenario, underlying baseline risk of Inc. December 31, 2004 (updated). Table 5–7. This uncertainty. For the present analysis, terror attack would have to be reduced table reports 2003 value estimates, and the 2003 estimate of $7.2 million was brought to the 2008 TSA is using a value of $1 trillion for less than 1 percent (Scenarios 3 and 4) value of $9.3 million using the FAA recommended to 11 percent (Scenario 2) in order for method described in the document in Section 9.6 36 Regulatory Assessment & Final Regulatory the rule to break even. If only avoidance (page 9–9), which relies on the BLS producer price Flexibility Analysis for the Final Rule, Passenger of quantified direct losses is considered, index series for civil aircraft, available in the Manifests for commercial Aircraft Arriving in and producer price index values for commodities at Departing from the United States; Passenger and preventing the impact characterized in http://stats.bls.gov/ppi/home.htm. Crew Manifests for Commercial Vessels Departing Scenario 1 is not sufficient to offset the 35 Regulatory Assessment & Final Regulatory from the United States. Table 13, page 36. LASP program’s annualized costs, even Flexibility Analysis for the Final Rule, Passenger 37 Thompson, Jr., William C. Comptroller, City of if a Scenario 1 outcome were a certainty, Manifests for Commercial Aircraft Arriving in and New York. ‘‘One Year Later: The Fiscal Impact of Departing from the United States; Passenger and 9/11 on New York City.’’ September 4, 2002. expressed as a baseline risk of 100%, Crew Manifests for Commercial Vessels Departing 38 ‘‘Economic Consequences of a Nuclear and the chance of this were eliminated from the United States. Table 12, page 35. Detonation in an Urban Area’’ undated DHS draft. entirely (100 percent risk reduction).

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FIGURE 1—REQUIRED REDUCTION IN ANNUAL RISK NECESSARY (%) FOR LASP ANNUALIZED DISCOUNTED COSTS ($194.1 M) TO EQUAL EXPECTED BENEFITS, BY ATTACK SCENARIO

Valuation at Required risk Scenario Scale Loss of life VSL of $5.8 Hull loss ($ Property loss Injuries Total ($ B) reduction by M ($ B) B) ($ B) ($ B) LASP (%)

1 ...... Minimal ...... 3 $0.02 $0.009 None $0.005 $0.03 N/A 2 ...... Moderate ...... 250 1.45 0.009 None 0.27 173 11.0 3 ...... Major ...... 3000 17.4 0.009 21.8 9.79 49.0 0.7

4 ...... Catastrophic Large and Variable across Studies 1,000 0.019

Costs rounding in displayed values may result 12,500 pounds and would thus be in minor differences in displayed totals. subject to the proposed rule. These The following summarizes the Aircraft operators, airport operators, aircraft operators are currently not estimated costs of this rulemaking by and TSA would incur costs to comply required to operate under any existing general category of who pays. A with the requirements of the proposed TSA security programs. Costs to these summary table provides an overview of LASP rule. TSA estimated the total 10- newly regulated aircraft operators the cost items and a brief description of year cost of the program at $1.4 billion, represent 84 percent of total estimated cost elements. Both in this summary discounted at 7%. At this rate, the costs, with security coordinator duties and the economic evaluation, annualized total rule cost per flight is and training making up 89.5 percent of descriptive language is used to try and estimated at $44. Aircraft operator costs those new aircraft operator costs. relate the consequences of the comprise 85 percent of all estimated Security coordinator duties and training regulation. Although the regulatory costs. This is due to the large number of for these operators are estimated at $1.0 evaluation attempts to mirror the terms newly regulated aircraft operators and billion over 10 years, discounted at 7 and wording of the proposed rule text, the amount of time security percent. The following figure provides no attempt is made to precisely replicate coordinators are anticipated to spend on the total 10-year costs as well as the regulatory language and readers are their duties. annualized costs at the 0, 7, and 3 cautioned that the actual regulatory text, TSA estimated approximately 9,000 percent discount rates for the principal not the text of the evaluation, would be GA aircraft operators use aircraft with a populations affected by the proposed binding. Throughout the evaluation maximum takeoff weight exceeding rule.

TOTAL AND ANNUALIZED COSTS BY AFFECTED ENTITY

10-year total costs Annualized costs Affected entity 0% 3% 7% 0% 3% 7%

New Aircraft Operators ...... $1,655.8 $1,402.3 $1,143.5 $165.6 $164.4 $162.8 Existing Aircraft Operators ...... 19.6 16.7 13.6 2.0 2.0 1.9 Airport Operators...... 7.5 6.5 5.5 0.8 0.8 0.8 TSA ...... 194.4 165.9 136.6 19.4 19.4 19.5 Passengers (Opportunity)...... 91.9 78.2 64.1 9.2 9.2 9.1

Total, Primary ...... 1,969.3 1,669.5 1,363.4 196.9 195.7 194.1

Total, High ...... 2,720.7 2,305.9 1,882.3 272.1 270.3 268.0

Total, Low ...... 1,239.1 1,051.2 859.2 123.9 123.2 122.3

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Given several areas of uncertainty in expenses to collect and submit cost segments of the proposed rule the cost estimates, TSA estimates of the passenger information for watch-list grouped into four major cost categories: total cost of the rule range from $859 matching. TSA is requesting detailed Security coordinator duties and million to $1.9 bilion, discounted at 7 comments to enable quantification of training; audits and inspections; STAs; percent. TSA was unable to model some this impact for new and existing and security programs. requirements, such as aircraft operator operators. The figure below displays the

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TSA estimated covered aircraft subscribing aircraft operators; thus, in determination, and the reasoning should operators would expend $1.1 billion the regulatory evaluation TSA assesses be clear. over 10 years to comply with the the costs directly to the affected aircraft As part of implementing this NPRM, proposed LASP, discounted at 7 operators. To avoid double-counting, TSA conducted this Initial Regulatory percent. All covered aircraft operators the analysis does not provide a separate Flexibility Analysis. The IRFA describes would incur costs to develop and estimate of auditor and watch-list the reasons for and objectives of the submit security programs and profiles. service provider enrollment costs. proposed rule; includes a description Newly regulated aircraft operators However, TSA has included a and estimate of the number of small would be required to designate security description of the enrollment process entities that would be impacted by the coordinators who would perform a and anticipated unit costs within the proposed rule; estimates the cost of variety of security-related duties and discussion of TSA’s costs to process complying with requirements for small complete annual security training. auditor and watch-list service provider entities; addresses significant These aircraft operators also would be applications. alternatives to the rulemaking required to ensure that their flight Passengers on covered aircraft would considered by TSA; and, identifies crewmembers successfully undergo incur opportunity costs from the time duplicative, overlapping, and STAs conducted by TSA. All aircraft spent providing personal information to conflicting rules. operators would need to control access aircraft operators, for use in Watch List Reason for the Proposed Rule to any weapons and check property in Matching, and, to a much more modest the cabin for possible stowaways. degree, from time spent delayed when The Aviation and Transportation Further, aircraft operators would be pre-flight Watch List Matching issues Security Act (ATSA) (Pub. L. 107–71, required to submit names of passengers need to be resolved in real time. TSA 115 Stat. 597, Nov. 19, 2001) granted aboard their flights to TSA-approved estimated that these passenger TSA broad statutory authority to take service providers for purposes of opportunity costs total $64 million, measures to increase the security of civil matching names against terrorist watch- discounted at 7 percent. aviation in the United States. Since the lists. Finally aircraft operators would As previously noted, TSA estimates passage of ATSA, TSA has used its contract with TSA-approved auditors to that the total 10-year cost of the program authority to implement an array of undergo biennial reviews demonstrating would be $1.4 billion, discounted at 7 aviation security programs, focusing compliance with their security percent; the annualized cost (at a 7 mainly on the commercial aviation programs. percent discount rate) per flight would segment of the industry. Since TSA views security programs as TSA is aware that as vulnerabilities be $44. a package, this rule would also require within the air carrier and commercial a partial airport security program for 3. Initial Regulatory Flexibility operator segment of the aviation non-federalized airports regularly Assessment (IRFA) industry are reduced, GA operations serving large aircraft, in scheduled or may become more attractive targets. The Regulatory Flexibility Act of 1980 public charter operations and airports With thousands of operators flying over establishes ‘‘as a principle of regulatory designated by the Secretary of 100,000 aircraft, firms operating in the issuance that agencies shall endeavor, Transportation as ‘‘Reliever Airports.’’ GA market—including some smaller consistent with the objective of the rule TSA has determined these airports airports—are largely unregulated with and of applicable statutes, to fit frequently serve as a base for aircraft respect to security. Many GA aircraft, regulatory and informational operators covered by the LASP. Covered however, are of the same size and requirements to the scale of the airports would be required to develop weight of the commercial operators that business, organizations, and and submit security programs to TSA TSA regulates, meaning that they governmental jurisdictions subject to and comply with program requirements. potentially and effectively could be regulation.’’ To achieve that principle, This would include the designation of used to commit a terrorist act. the RFA requires agencies to solicit and airport security coordinators and Consequently, this portion of the consider flexible regulatory proposals completion of attendant training. TSA aviation industry may be vulnerable to and to explain the rationale for their estimated airport operators would exploitation by terrorists. Except for actions. The RFA covers a wide range of expend $5.5 million over 10 years, limited security requirements for certain small entities, including small discounted at 7 percent. classes of GA aircraft, TSA does not businesses, not-for-profit organizations, To implement and oversee this new currently require security programs for and small governmental jurisdictions. security program regime, TSA would many GA aircraft operators. This expend monies to conduct outreach to When issuing a rulemaking, agencies situation presents a security risk. covered aircraft and airport operators must perform a review to determine The proposed rule would mitigate this and process security programs and whether a proposed or final rule will risk by requiring GA aircraft operators profiles, enforce compliance with the have a significant economic impact on and certain airports to enact an proposed requirements, and enroll a substantial number of small entities. If assortment of security measures. auditors and watch-list service the determination is that it will, the providers. TSA estimated its 10-year agency must prepare a regulatory Objectives of the Proposed Rule costs to implement the proposed flexibility analysis as described in the The objective of the proposed rule is regulation would range from $133.5 RFA. However, if an agency determines to strengthen the security of civil million to $139.8 million, discounted at that a proposed or final rule is not aviation. 7 percent, with a primary estimate of expected to have a significant economic $136.6 million. impact on a substantial number of small Description and Estimate of the Number Entities wishing to participate as entities, section 605(b) of the RFA of Small Entities auditors or watch-list service providers provides that the head of the agency The proposed rule would impact would incur voluntary costs to apply to may so certify and a regulatory certain firms flying aircraft with a TSA for authorization to provide those flexibility analysis is not required. The maximum take-off weight greater than services. These service entities would certification must include a statement 12,500 pounds in the civil aviation likely pass their enrollment expenses to providing the factual basis for this market. It would also impact certain

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publicly- and privately-owned airports. passengers or cargo or both; and do not as TFSSP operators due to the extremely This section of the IRFA attempts to operate under a PPSSP or PCSSP. small number of Partial Program describe and identify all small entities The PPSSP is used by scheduled operators, the similarities between the within the aforementioned industries, passenger or public charter passenger two groups, and the fact that they would including those operating under existing operations using aircraft with seating be merged under the proposed security regulations and those that are configurations of 31 or more, but 60 or regulation.) currently not regulated. fewer seats that do not enplane from or Conversely, aircraft operators using deplane into a sterile area, and by privately chartered aircraft (aircraft Currently Regulated Aircraft Operators scheduled passenger or public charter hired by, and for, one specific group of passenger operations using aircraft with The proposed rule would affect people), having a MTOW greater than seating configurations of 60 or fewer aircraft operators currently offering 45,500 kg (100,309.3 pounds); or, a seats engaged in operations to, from, or services under existing security passenger seating configuration of 61 or outside the United States that do not regulations. Aircraft operators utilizing more seats, or, that enplane from or enplane from or deplane into a sterile TSA-required security programs, deplane into a sterile area, operate area. including the Twelve-Five Standard The requirements of the PPSSP are under the PCSSP. To be considered a Security Program (TFSSP), the All Cargo identical to those of the TFSSP, with the private charter, the charterer must have Twelve-Five Standard Security Program exception that the PPSSP requires engaged the total passenger capacity of (TFSSP–AC), the Partial Program operators to participate in airport the aircraft, invited all of the passengers, Standard Security Program (PPSSP), and operator-sponsored exercises of airport borne all of the costs of the charter, and the Private Charter Standard Security contingency plans. TSA estimated that must not have advertised to the public, Program (PCSSP) would be covered by approximately 649 operators, utilizing in any way, to solicit passengers. the proposed rule. 4,540 large aircraft, were conducting In conducting research for the Aircraft operators offering services operations either solely or primarily Regulatory Evaluation, TSA generated under the TFSSP and the TFSSP–AC under the TFSSP or PPSSP at the time estimates of the number of operators utilize aircraft with a maximum takeoff of writing. (Within the text of this IRFA, offering services under each security weight of more than 12,500 pounds; Twelve-Five and Partial Program program described above. The estimates offer scheduled or charter service; carry operators may be referred to collectively are shown in the figure below.

LASP AIRCRAFT OPERATORS CURRENTLY OPERATING UNDER A TSA SECURITY PROGRAM

Number of air- Existing security program or operating certificate craft operators

Twelve-Five Standard Security Program ...... 649 All Cargo Twelve-Five Standard Security Program ...... 48 Private Charter Standard Security Program ...... 77

Total ...... 774

To determine if the firms identified in measures. Firms in these markets with NAICS 481211—Nonscheduled the figure above qualify as small entities less than 1,500 employees are Chartered Passenger Air Transportation as defined by the RFA and the Small considered small by the SBA. As stated above, the SBA defines any Business Administration (SBA), TSA Unfortunately, TSA could not obtain firm in the Nonscheduled Chartered first attempted to classify each firm current, detailed employee data for the Passenger Air Transportation industry using North American Industry respective firms, making it difficult to with less than 1,500 employees as small. Classification System (NAICS) codes discern whether the firms are small or Using 2002 data maintained by the U.S. maintained by the U.S. Census Bureau. large according to standards set by the Census Bureau, TSA determined that After analyzing the various operators’ SBA. In light of the lack of current there are 1,400 firms in the industry, characteristics and the NAICS codes, employee data on these firms, TSA and at least 1,178 of these firms are TSA determined that the aircraft turned to U.S. Census Bureau small entities. The average annual operators described above would information to gauge the number of revenue for firms in this industry in broadly fall into the nonscheduled air currently regulated entities affected by 2002 was approximately $3.9 million. transportation market. Firms in NAICS the proposed rule that may be The data that TSA accessed from the code 481211, Nonscheduled Chartered considered small. Census Bureau to make this Passenger Air Transportation, and code determination did not have enough 481212, Nonscheduled Charter Freight detail for the Agency to draw a Air Transportation, are classified as conclusion on the remaining 222 firms. large or small based on employee See the figure below.

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NAICS 481212—Nonscheduled with less than 1,500 employees as small. industry in 2002 was approximately Chartered Freight Air Transportation Again using Census Bureau data, TSA $5.0 million. The data that TSA determined that there are 231 firms in accessed from the Census Bureau to As previously stated, the SBA defines the overall industry, and at least 162 of make this determination did not have any firm in the Nonscheduled Chartered these firms are small entities. The enough detail for the Agency to draw a Freight Air Transportation industry average annual revenue for firms in this conclusion on the remaining 69 firms.

Firms operating aircraft under the Chartered Passenger Air Transportation, TFSSP and PCSSP operators, TFSSP and the PCSSP likely fall into described above. As previously stated, respectively, that would be affected by NAICS code 481211, Nonscheduled TSA estimated that there are 649 and 77 the NPRM. In all likelihood, these

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operators represent a subset of the firms through advertising or any other means. Airport Operators TSA identified using the Census data. Non-common carriage includes the Airports that would be affected by the So while TSA identified 1,178 small following: proposed rule include airports regularly • entities (and 222 potentially small Carriage of operator’s own serving scheduled or public charter entities) in the overall Nonscheduled employees or property. operations in large aircraft and ‘‘reliever Chartered Passenger Air Transportation • Carriage of participating members airports,’’ as designated by the Secretary market, it is not likely that all of those of a club. of Transportation. TSA determined firms would be impacted by the • Carriage of persons and property, approximately 42 airports regularly proposed rule. Firms operating under the TFSSP–AC which is only incidental to the serving scheduled or public charter most likely are classified by the Census operator’s primary business. operations and 273 reliever airports Bureau by NAICS code 481212, • Carriage of persons or property for would be subject to the proposed rule, Nonscheduled Chartered Freight Air compensation or hire under a a total of 315 airports. Transportation. As stated above, TSA contractual business arrangement that The 42 affected airports TSA has estimated that the proposed rule would did not result from the operator’s identified that regularly serve scheduled only affect 48 of these operators. It is holding out or offering. In this situation, or public charter operations and do not likely that the 48 operators represent a the customer seeks out an operator to already have a TSA security program are subset of the firms TSA identified in the perform the desired service and enters all owned by public entities. Because Census data described above. into an exclusive mutual agreement; the the airports are publicly owned, the By adding the estimated number of operator does not seek out the customer. Census Bureau classifies them using TFSSP, PCSSP, and TFSSP–AC Under the proposed rule, both NAICS Code 926120, Regulation and operators together, TSA was able to common carriage and non-common Administration of Transportation conclude that the proposed rule would carriage large aircraft operators would Programs. affect a total of 774 currently regulated be required to establish and implement Reliever airports are airports operators. In 2003, pursuant to another the security requirements of the LASP. designated by the FAA to relieve rulemaking, TSA estimated that of 767 Those firms operating under common congestion at commercial service TFSSP, TFSSP–AC, and PCSSP carriage have been discussed in the airports and to provide improved GA operators, all but 15 were small entities. currently regulated section of this IRFA; access to members of the local 39 Typically, these types of operators are the following discussion relates to non- community. The 273 reliever airports independently owned and operated, and common carrier operations. that would be impacted by the rule are owned by public entities—such as State rarely employ more than 1,500 Part 125 of 14 CFR applies to some and local governments—and private, employees, making them small entities large aircraft operations that may for-profit concerns. The publicly—and according to the SBA. Given that TSA provide private carriage (but not privately-owned airports, due to their has not received any new data on these common carriage). Part 125 governs the different ownership characteristics, are operators since 2003, and given the lack operation of large aircraft that are able classified by different NAICS codes by of detail in the Census Bureau data, the to carry 6,000 pounds or more of the U.S. Census Bureau. Privately- Agency assumed for the purposes of this payload capacity and 20 or more owned airports are classified by NAICS analysis that all but 15 of the 774 passenger seats. operators that would be affected by this code 48811, Airport Operations, while In conducting research for the NPRM are small entities. The Agency publicly owned airports are classified Regulatory Evaluation, TSA subject seeks comment on this preliminary by NAICS code 926120, Regulation and matter experts determined that the conclusion. Administration of Transportation proposed rule would affect 9,000 Programs. Newly Regulated Aircraft Operators aircraft operators regulated by 14 CFR NAICS 48811—Airport Operations The proposed rule would also cover part 91, and 61 aircraft operators any aircraft operator using an aircraft regulated by 14 CFR part 125. Due to the Private firms operating reliever having a MTOW greater than 12,500 unique conditions under which these airports fall into NAICS code 48811, pounds. Such operators primarily firms conduct operations, TSA could Airport Operations. The SBA defines conduct operations under 14 CFR part not identify the respective NAICS codes firms in this industry with less than 91 and 14 CFR part 125. Currently, these for these operators. Consequently, TSA $6.5 million in annual revenues as types of operators are generally not could not determine the small entity small. To discern the number of small covered by existing security regulations. size standards for these businesses. firms likely to be impacted by the Part 91 operations, commonly referred Without this information, TSA could proposed rule, TSA first obtained data to as GA operations, can be undertaken not reliably estimate the number of on the total number affected reliever for a wide range of purposes, but a basic small entities operating aircraft in these airports from FAA. From the FAA distinction is drawn between flight operating categories. Moreover, TSA information, which identified 273 total activity used to provide ‘‘common could not find reliable revenue and reliever airports that would be subject to carriage’’ and other flight activity. employee data for these firms, further the rule, TSA was able to identify 46 Common carriage means any operation complicating the effort. privately-held reliever airports. for compensation or hire where the Given the constraints discussed Unfortunately, TSA could not find operator holds itself out as willing to above, TSA could only conclude that any revenue information on the 46 furnish transportation to any member of the proposed rule would affect between privately-owned reliever airports, the public seeking the services offered. 0 and 9,000 small entities currently making it impossible to determine if The operator openly offers a service for regulated by 14 CFR part 91, and a fee (by advertising or any other means) between 0 and 61 small entities 39 U.S. Department of Transportation, Federal to members of the public. currently regulated by 14 CFR part 125. Aviation Administration, ‘‘Categories of Airports,’’ Available from: http://www.faa.gov/ In contrast, ‘‘private’’ or ‘‘non- TSA seeks comment on information that airportslairtraffic/airports/planninglcapacity/ common carriage’’ does not involve would allow it to refine its estimate of passengerlallcargolstats/categories/. Accessed on offering or holding out by the operator small entities as defined by the RFA. February 28, 2007.

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they are classified as small entities. NAICS 926120—Regulation and defines small governmental However, given that the average annual Administration of Transportation jurisdictions as governments of cities, revenues in the industry were $3.8 Programs counties, towns, townships, villages, million in 2002, well below the $6.5 school districts, or special districts with As previously stated, publicly owned 40 million threshold set by SBA, it is likely a population of less than 50,000. reliever airports likely fall into NAICS that some of the affected firms are small To determine if the proposed rule code 926120, Regulation and entities. Due to the lack of available would have an impact on any small Administration of Transportation revenue data, TSA assumed for the governmental jurisdictions, TSA again Programs. Because firms in this industry accessed the FAA airport data. Of the purposes of this analysis that there are are not privately held, for-profit between 0 and 46 small entities in this 315 affected airports, TSA discerned companies, the SBA does not use that 269 are owned by governments. industry that would be impacted by the revenue or employment measures to rule. TSA seeks comment on this After researching the population of all determine if they are small entities. the affected governments using U.S. assumption. Instead, the SBA uses the population Census Bureau population data, TSA of the government jurisdiction that concluded that between 68 and 74 small owns the firm to determine if it is a governmental jurisdictions would be small governmental jurisdiction. impacted by the proposed rule. See the Specifically, sec. 601(5) of the RFA figure below.

Summary of Number of Small Entities The ambiguous nature of the revenue covered by 14 CFR part 91 and 14 CFR Using the data discussed above, TSA and employee data for the firms in some part 125, prevented TSA from making a concluded that the NPRM would impact of the affected industries, coupled with more refined estimate. See the figure between 827 and 9,955 small entities. the lack of information on operators below.

TOTAL ESTIMATE OF SMALL ENTITIES POTENTIALLY AFFECTED BY THE LASP *

Low High Operator NAICS Industry SBA size standard esti- esti- classification code mate mate

Currently Regulated Aircraft Opera- 481211 Nonscheduled Chartered Passenger 1,500 employees ...... 759 774 tors (TFSSP, PCSSP, TFSSP– Air Transportation. AC). 481212 Nonscheduled Chartered Freight Air ...... Transportation. Newly Regulated Aircraft Operators U U ...... U ...... 0 9,061 (14 CFR part 91, 14 CFR part 125). Privately-Owned Airports ...... 48811 Airport Operations ...... $6.5 million in annual revenue ...... 0 46

40 Regulatory Flexibility Act, Public Law 96–354, Sep. 19, 1980, 94 Stat. 1164 (codified at 5 U.S.C. 601).

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TOTAL ESTIMATE OF SMALL ENTITIES POTENTIALLY AFFECTED BY THE LASP *

Low High Operator NAICS Industry SBA size standard esti- esti- classification code mate mate

Public Airports...... 926120 Regulation and Administration of 50,000 population of governmental 68 74 Transportation Programs. jurisdiction.

Total ...... 827 9,955 * Total Small Entities Impacted: The NPRM would impact between 827 and 9,957 small entities. Source: 2002 Economic Census, FAA, SBA, TSA calculations. Notes: U means data unavailable.

The data used to determine the governmental jurisdictions that would ranges rather than absolute values in number of impacted small entities in be subject to the proposed rule. order to reflect the uncertainty this analysis exhibit some critical Due to the reasons described above, surrounding different estimates. shortcomings. First, TSA did not have TSA may have under- or over-estimated access to any comprehensive the number of affected small entities. Currently Regulated Aircraft Operators employment data for some of the TSA seeks comment on this possibility. Security Programs and Profiles affected aircraft operators in the Description and Estimate of Compliance Currently regulated aircraft operators nonscheduled air transportation Requirements industry. affected by the proposed rule would be The proposed rule would require Second, TSA was unable to access required to submit a profile containing firms operating certain classes of aircraft comprehensive revenue or employment several pieces of information and to and airports to undertake a number of data for the aircraft operators offering develop and submit a security program. measures aimed at increasing civil services under 14 CFR part 91 and 14 TSA would make available to all aviation security. This section of the CFR part 125. Additionally, TSA could covered aircraft operators a template analysis provides a brief description of not identify the appropriate NAICS Large Aircraft Standard Security each requirement, followed by an codes for these operators, making it Program that operators would have the estimate of the unit cost per operator to option to either accept without impossible to identify the size standard comply with each requirement. This that would be necessary to determine if part of the analysis also attempts to modification or use as the basis of the firms are large or small. make an initial determination on developing their own security program. Third, TSA could not obtain revenue whether the proposed rule would have In estimating costs for this requirement, data for firms operating privately-owned a significant economic impact on a TSA assumed that nearly all covered reliever airports, making it impossible to substantial number of small entities. operators would choose to adopt the generate an accurate estimate of the Given the operational and regulatory template security program. These number of small entities in that differences between the various firms requirements would impose costs on industry. that would be affected by the proposed currently regulated aircraft operators, Finally, TSA was unable to find rule, compliance requirements and their which are shown in the figure below. reliable information on some of the attendant costs are described separately For a more robust discussion on how governmental jurisdictions operating for currently regulated aircraft TSA estimated these costs, see the covered airports. This situation operators, newly regulated aircraft section on security programs and prevented TSA from making a more operators, and airport operators. profiles located above in the Regulatory accurate estimate of the number of small Furthermore, costs are estimated as Evaluation.

UNIT COST: SECURITY PROGRAMS/PROFILES, CURRENTLY REGULATED AIRCRAFT OPERATORS

Hours Total unit cost Hourly compensation Low Primary High Low Primary High

a b c d (a) × (b) (a) × (c) (a) × (d)

$62.43 ...... 2 4 6 $125 $250 $375

Security Coordinator Duties check. The proposed rule would require include the terrorism check component Currently regulated aircraft operators LASP aircraft operators to begin of the proposed STA. As a result, TSA have existing security coordinators and ensuring that their flight crewmembers intends to establish a new system to would not incur new costs as a result of undergo STAs and would limit the enable it to process STA applications this requirement. validity of a STA to five years. As from covered aircraft operators. TSA is proposed, the STA would consist of a thus proposing a fee of $74 to recover Security Threat Assessments for Flight CHRC and a check against government its costs associated with this new Crews terrorism watch-lists and related system and the processing of STAs. Aircraft operators offering services databases. Existing aircraft operators Flight crewmembers of currently under existing security regulations must currently pay an estimated $30 to $35 regulated aircraft operators would be utilize flight crew personnel that have for CHRCs; however, the collection required to submit a new STA undergone a criminal history records system used by these operators does not application upon publication of a final

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rule if their most recent CHRC had been UNIT COST: SECURITY THREAT AS- TSA has determined that in most completed five or more years prior to SESSMENTS, CURRENTLY REGU- cases affected operators already comply the compliance date of the final rule. LATED AIRCRAFT OPERATORS with the anticipated inspection Flight crewmembers having CHRCs requirements during the normal course of the pre-flight check. Costs associated completed within five years prior to the Unit fee (inc. op- Flight crew- Total unit compliance date in a final rule would be member cost per with this responsibility are captured in portunity costs) STAs operator required to submit a STA application the security coordinator duties above. once five years had passed since their a b (a × b) Because currently regulated aircraft CHRC. Since TSA instituted the existing operators are not expected to incur any operator security programs in early $99.70 ...... 8 $800 marginal costs for security coordinators, 2003, several existing operators may this requirement also would not add any need to conduct a STA on their flight Control of Access to Weapons additional costs for these operators. crewmembers in the first year of the Aircraft operators utilizing the Watch-List Matching LASP. TFSSP-All Cargo would be required to The proposed regulation would Because this represents a new control access to weapons. Presently, require each aircraft operator to request requirement, TSA used the full these operators are required to ‘‘apply and obtain certain passenger proposed fee, plus opportunity costs, to the security measures in its security information from every passenger on estimate a unit cost to existing operator program for persons who board the each flight operated by the aircraft small entities. As noted above, the aircraft for transportation, and for their operator, and transmit the information proposed fee is $74. TSA estimated property, to prevent or deter the carriage to an entity approved by TSA to opportunity costs would consist of 0.5 of any unauthorized persons, and any conduct watch-list matching (known as hours of flight crewmember time to unauthorized weapons, explosives, a watch-list service provider). Any provide the information required for the incendiaries, and other destructive changes to the passenger information 42 STA application and to have devices, items, or substances.’’ The prior to boarding would be required to fingerprints taken. Using an average proposed rule modifies current law by be resent to the watch-list service inserting between ‘‘unauthorized wage rate of $51.40 for aircraft operator provider. weapons’’ the words ‘‘or accessible.’’ flight crews,41 30 minutes represents an TSA has estimated the compliance TSA has determined this requirement costs for this requirement as the 10-year opportunity cost of $25.70 per STA, for would have a de minimis impact, undiscounted cost of WLSP averaged a total STA unit cost of $99.70. TSA because few passengers are carried over the forecast number of flights. This estimated existing operators each aboard such flights and operators are average cost per flight multiplied by the employ an average of 18 flight already required to screen them. average flights per operator produces an crewmembers based on data provided Further, operators would have a variety estimated annual cost per operator for by TSA subject matter experts and the of means of rendering weapons WLSP. TSA estimates the cost for American Association of Airport inaccessible to passengers. compliance would range from $245 to Executives, the entity that processes Check of Accessible Property $736 per operator with a primary cost existing operator CHRCs. Based on an estimate of $491 per operator. To the assumed turnover rate of 15 percent, The proposed rule would require an extent that small entities may make however, TSA estimated that on average aircraft operator to inspect, pursuant to fewer flights per year than large entities, an existing operator would have only the terms and method in its security the actual impact to small entities may about eight crewmembers whose CHRCs program, any property brought on board be lower. However, TSA believes these would be expired under the proposed that would be accessible to the cabin. costs provide a conservative estimate of rule. Thus, the maximum per-operator Property, for this section, is defined as the impact to small operators. For more cost for STAs would be approximately any container, cargo, or company discussion on the costs of this $800. material that may be used to hide a requirement, see the section on watch- stowaway or explosives, incendiaries or list matching above, located in the other destructive devices. Regulatory Evaluation.

Cost estimates Components Low Primary High

WLSP Costs ...... $22,787,364 $45,574,727 $68,362,091 Flight Forecast ...... 87,932,347 87,932,347 87,932,347 Cost per Flight ...... $0.26 $0.52 $0.78 Flights per Operator ...... 946 946 946 Cost per Operator ...... $245 $491 $736

Audits of Aircraft Operators the aircraft operator’s compliance with these audits to be approximately $2,257 its security program. per audit, on average. Currently, audits Under the proposed rule, each aircraft Based on similar audits undertaken are performed to review safety, operator must contract with an auditor operations, and maintenance. TSA approved by TSA to conduct an audit of relative to other federal aviation programs, TSA estimated the cost for anticipates that many of these firms will

41 The flight crew wage reported here is a Department Manager II (does some flying), Chief 42 49 CFR 1544.202. weighted average of the following occupations from Pilot, Senior Captain, and Copilot. the 2006 NBAA Salary Survey: Aviation

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offer the ‘‘security’’ audit as part of their TSA adopted the average of $2,257 as its of the proposed rule for currently offerings to their current customers and, primary estimate. For more discussion regulated aircraft operators. As perhaps, where feasible, bundle the on these costs, see the section in the described above, TSA estimated that security audit with already scheduled Regulatory Evaluation that describes between 759 and 774 currently audits. this requirement. regulated small entities would be Based on interviews with 3 impacted by the proposed rule. International Standard for Business Total Cost per Currently Regulated Aircraft Operations auditors, TSA Aircraft Operator estimated costs for audits could range The following figure is a summary of from $1,464 to $3,050. As stated above, the requirements and compliance costs

TOTAL COMPLIANCE UNIT COST, CURRENTLY REGULATED AIRCRAFT OPERATORS

Unit cost Requirement Low Primary High

Security Programs and Profiles ...... $125 $250 $375 Security Coordinator Duties ...... STAs for Flight Crew ...... 800 800 800 Control Access to Weapons ...... Screening of Accessible Property ...... Watch-list Matching ...... 245 491 736 Audits ...... 1,464 2,257 3,050

Total ...... 2,634 3,797 4,960

Given the uncertainty in this analysis, either of these industries, a compliance not believe the proposed rule would it was difficult for TSA to conclusively cost of approximately $2,634 to $4,960 represent a significant economic impact determine if the proposed rule would would not likely constitute a significant on a substantial number of currently have a significant economic impact on economic impact, given that the cost regulated aircraft operators. TSA a substantial number of currently would equal less than 1 percent of requests comment on this preliminary regulated aircraft operators. Although annual revenues. determination. neither the RFA nor the SBA define the For the proposed rule to have a term ‘‘significant economic impact,’’ significant economic impact on a Newly Regulated Aircraft Operators TSA attempted to compare compliance currently regulated aircraft operator, the Security Programs and Profiles costs to average firm revenues to aircraft operator would likely have to determine if the rule would have a earn annual revenues of approximately As described above, covered aircraft considerable economic impact on $367,000 or less. In this scenario, the operators would be required to submit covered small entities. Unfortunately, highest estimated compliance costs a profile to TSA and to develop and this review proved difficult due to the associated with the proposed rule submit a security program. TSA lack of revenue data on covered firms. would represent approximately 1 estimated it would take newly regulated As previously stated, currently percent of the firm’s annual revenue. aircraft operators between 8 and 16 regulated aircraft operators are likely While conducting research for this hours to review the template security categorized by the Census Bureau using analysis, TSA was unable to acquire program, assemble the requisite profile NAICS codes 481211, Nonscheduled comprehensive revenue data on information, and submit the requisite Chartered Passenger Air Transportation, currently regulated aircraft operators, documents to TSA for review. TSA and 481212, Nonscheduled Chartered and therefore could not make a assumed an average of 12 hours for its Freight Air Transportation. In 2002, conclusive determination on whether primary estimate. To calculate costs for according to the Economic Census, these firms would experience a newly regulated aircraft operators to firms in these industries earned annual significant economic impact under the review security programs and submit revenues of approximately $3.9 million proposed rule. However, in light of the the required profile information, TSA and $5.0 million, respectively. For a average annual revenues of firms in the again multiplied the estimated hourly firm with average annual revenues in respective industries in 2002, TSA does range by the hourly wage of $62.43.

UNIT COST: SECURITY PROGRAMS/PROFILES, NEWLY REGULATED AIRCRAFT OPERATORS

Hours Total unit cost Hourly compensation Low Primary High Low Primary High

a b c d (a × b) (a × c) (a × d)

$62.43 ...... 8 12 16 $500 $750 $1,000

Security Coordinator Duties designate Aircraft Operator Security they are properly trained. Each security Coordinators (AOSC), Ground Security coordinator position would have unique Newly regulated large aircraft Coordinators (GSC), and In-Flight responsibilities; however, aircraft operators would be required to Security Coordinators (ISC), and ensure operator employees could be trained to

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serve as one or all three of these operator’s compliance with its security responsibility of the security positions. program. In addition to these AOSC coordinators. The principal AOSC or an alternate, if duties, security coordinators are TSA estimated the amount of time applicable, must be available for contact responsible for the enforcement of security coordinators of newly regulated by TSA 24 hours a day, seven days a policies and procedures relative to the aircraft operators would spend on their week to ensure TSA is able to quickly security of the aircraft, including the duties. For a detailed discussion of disseminate any intelligence of a threat vetting of crew (where required) and to a specific aircraft operator or industry passengers which must be carried out in these estimates, see the section on segment. The AOSC bears the further accordance with the operator’s security security coordinator duties in the responsibility for maintaining any and program. Many of the aircraft operator Regulatory Evaluation. The figure below all records necessary to demonstrate to requirements discussed in the following displays the annual cost per operator of an auditor or TSA inspector the aircraft cost sections fall under the having an AOSC.

UNIT COST: SECURITY COORDINATOR DUTIES, NEWLY REGULATED AIRCRAFT OPERATORS

Hourly Hours Total unit cost compensation Low Primary High Low Primary High

a b c d (a × b) (a × c) (a × d)

$53.59 ...... 164 284 404 $8,780 $15,210 $21,650

Newly regulated aircraft operators threat notification and response, For the purposes of estimating costs would also need to ensure that security implementation of security directives, for this IRFA, TSA assumed that an coordinators underwent appropriate and other security related topics. operator would need to conduct an security training in order to carry out Security coordinators would be required initial and recurring training of GSCs their required functions. The AOSC to complete both an initial training and ISCs in one year. Although this would thus coordinate with TSA to course and annual recurring training. timeframe is unlikely, TSA feels that it provide training to GSCs and ISCs. TSA again provided a range of estimates is a conservative assumption that Training would cover topics such as of the amount of time newly regulated accounts for the maximum potential procedures to notify authorities when operators would spend conducting new cost of this requirement. dealing with suspect items, and recurring training. unauthorized access to the aircraft,

UNIT COST: SECURITY COORDINATOR TRAINING, NEWLY REGULATED AIRCRAFT OPERATORS

Unit cost Requirement Low Primary High

New Training ...... $460 $680 $890 Recurring Training ...... 230 340 440

Total ...... 690 1,020 1,330

Security Threat Assessments for Flight Social Security Number (voluntary), and For the purposes of estimating costs Crews other information necessary for TSA to for this IRFA, TSA estimated the cost of determine whether an applicant has flight crews obtaining STAs on a per The proposed rule would also require committed a disqualifying crime or operator basis. Based on input from TSA newly regulated aircraft operators to poses a threat to transportation or subject matter experts, TSA assumed 1.5 ensure that their flight crewmembers national security. For a comprehensive flight crewmembers per aircraft, and 1.8 undergo security threat assessments. discussion of how TSA derived the total aircraft per Part 91 operator and 4 The STA process would require each cost of this provision, see the section of aircraft per part 125 operator. The figure flight crewmember to submit the Regulatory Evaluation that describes below displays the average cost that fingerprints, along with information this requirement. each newly regulated operator would such as name, date and place of birth, incur as a result of this NPRM.

UNIT COST: SECURITY THREAT ASSESSMENTS, NEWLY REGULATED AIRCRAFT OPERATORS

Total unit cost Requirement Low Primary High

Security Threat Assessment ...... $580 $580 $580

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Control of Access to Weapons Watch-List Matching for currently regulated operators. TSA estimated that the unit cost of an audit As described in the more The estimated cost for WLSP compliance is the same for the newly would range from $1,464 to $3,050, with comprehensive Regulatory Evaluation covered and existing operators. TSA $2,257 being TSA’s primary estimate for and in the section on currently utilizes the same methodology as above the cost of this requirement. regulated aircraft operators of this IRFA, to estimate the total unit compliance this requirement is anticipated to have Total Cost per Newly Regulated Aircraft cost for newly regulated aircraft Operator a de minimis impact on covered operators. TSA estimates the cost for operators. compliance would range from $245 to The following figure is a summary of the requirements and compliance costs Check of Accessible Property $736 with a primary cost of $491 per operator. of the proposed rule for newly regulated aircraft operators. TSA estimated that As previously stated, TSA determined Audits of Aircraft Operators that in most cases affected operators the cost of complying with the proposed already comply with the anticipated Under the proposed rule, each aircraft rule would range from $12,259 to inspection requirements during the operator must contract with an auditor $28,356 for newly regulated aircraft normal course of the pre-flight check. approved by TSA to conduct an audit of operators. As described above, TSA Costs associated with this responsibility the aircraft operator’s compliance with estimated that between 0 and 9,061 its security program. The cost of this small entities in this operator category are captured in the security coordinator requirement for newly regulated aircraft would be impacted by the proposed duties above. operators would be identical to the cost rule.

TOTAL COMPLIANCE UNIT COST, NEWLY REGULATED AIRCRAFT OPERATORS

Unit cost Requirement Low Primary High

Security Programs and Profiles ...... $500 $750 $1,000 Security Coordinator Duties ...... 9,470 16,230 22,990 STAs for Flight Crew ...... 580 580 580 Control Access to Weapons ...... Screening of Accessible Property ...... Watch-list Matching ...... 245 491 736 Audits ...... 1,464 2,257 3,050

Total ...... $12,259 $20,308 $28,356

TSA again encountered analytical have a significant economic impact on regulated private airport operators difficulties when attempting to a substantial number of newly regulated between 8 and 16 hours to review and determine if the proposed rule would aircraft operators. implement the template security have a significant economic impact on Airport Operators program and assemble the requisite a substantial number of newly regulated profile information. TSA adopted an aircraft operators. As previously stated, Security Programs and Profiles average of 12 hours as its primary TSA was unable to acquire annual estimate. Finally, TSA multiplied each revenue data for these operators. This The proposed rule would require certain privately-owned airports to hour estimate by a middle management lack of information prevented TSA from wage rate of $31.24 per hour to generate making a conclusive determination of develop security programs and submit a unit cost between $250 and $500, with the rule’s impact on small entities in security profiles to TSA. TSA would a primary estimate of $375. The this operator category. make available a template partial airport For the proposed rule to have a security program that operators would requirement to adopt and submit significant economic impact on a newly have the option to either accept without security programs and profiles is not regulated aircraft operator, the aircraft modification or use as the basis of recurring; therefore, airport operators operator would likely have to earn developing their own security program. would only incur this cost once over the annual revenues of $2.7 million or less. To calculate the unit cost for airports ten-year period of analysis. This If a firm with this level of annual to comply with this requirement, TSA estimate does not include completion of revenues incurred compliance costs of assumed that nearly all covered airport a risk-based self-assessment tool that $28,356 (the high estimate in the figure operators would choose to adopt the may complement the security program. above), it would represent 1 percent of template security program, thereby TSA has requested comments on annual revenue. Given the uncertainty minimizing the cost of implementing whether such a tool should be in its estimates, TSA requests comment this requirement. Second, TSA mandatory but has not set it forth as a on whether the proposed rule would estimated it would take these newly requirement in the proposed rule.

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UNIT COST: SECURITY PROGRAMS/PROFILES, AIRPORT OPERATORS

Hours Total unit cost Hourly compensation Low Primary High Low Primary High

a b c d (a × b) (a × c) (a × d)

$31.24 ...... 8 12 16 $250 $375 $500

Airport Security Coordinators TSA estimated airport security estimates into annual estimates of 26, The proposed rule would also require coordinators would spend an average of 39, and 52 hours, respectively. Finally, airport operators to maintain airport between 0.5 and 1 hour per week on to calculate the unit cost associated with security coordinators (ASC). For a more their duties, adopting 0.75 hours per this requirement, TSA multiplied the in-depth discussion of this requirement, week as its primary estimate. To anticipated number annual hours by the see the airport security coordinator calculate the cost on an annual basis, ASC average hourly cost of section of the Regulatory Evaluation. TSA translated the weekly hour compensation. See the figure below.

UNIT COST: SECURITY COORDINATOR DUTIES, AIRPORT OPERATORS

Hours Total unit cost Hourly compensation Low Primary High Low Primary High

a b c d (a × b) (a × c) (a × d)

$31.24 ...... 26 39 52 $810 $1,220 $1,620

Airport security coordinators would estimated ASCs would need to expend available 24-hours per day. Without need to undergo training to comply with an additional $450 to cover travel and more detailed information, TSA adopted the proposed rule. TSA training other incidental expenses. TSA assumed the average for its primary estimate. See requirements for airport security the need to travel to and from the the figure below for a summary of the coordinators differ from those for training would effectively add an costs of complying with this aircraft operator security coordinators. additional eight hours to the training. requirement. TSA has requested ASC training is only offered twice per To estimate the cost of this comments on whether it should adopt a year by the American Association of requirement, the eight hours of class self-paced training program for these time are added to the eight hours of Airport Executives. This 8-hour training airports that would reduce the impact of assumed travel time for a total of 16 course is taught by professional trainers this requirement. For the purposes of hours of compensated ASC time. TSA and requires payment of a $350 estimated airports would need to train the RFA, however, TSA estimated costs registration fee. Since this training is between one and three ASCs in order to for this requirement as it is proposed in offered at a single location, TSA meet the requirements that an ASC be the NPRM.

UNIT COST: SECURITY COORDINATOR TRAINING, AIRPORT OPERATORS

Unit cost Training cost item Low Primary High

Training Course Fee ...... $350 ...... Travel Expenses ...... 450 ...... ASC Compensation ...... $500 1,000 $1,500

Total ...... 1,300 1,800 2,300

Total Cost per Airport Operator would impose a compliance cost of uncertainty surrounding many of the between approximately $2,360 and variables used to generate the estimates. Using the estimates described above, $4,420 per airport operator. The range of See the figure below. TSA concluded that the proposed rule compliance costs reflects the

TOTAL COMPLIANCE UNIT COST, AIRPORT OPERATORS

Unit cost Requirement Low Primary High

Security Program and Profile ...... $250 $375 $500 ASC Duties ...... 810 1,220 1,620

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TOTAL COMPLIANCE UNIT COST, AIRPORT OPERATORS—Continued

Unit cost Requirement Low Primary High

ASC Training ...... 1,300 1,800 2,300

Total ...... 2,360 3,395 4,420

After making the estimates described compare estimated compliance costs to TSA requests comments that would above, TSA has initially concluded that revenues typically earned by these types enable it to quantify these impacts. the proposed rule would not impose a of airport operators. Watch-List Matching significant economic impact on a substantial number of privately-owned Significant Alternatives Considered TSA considered requiring all large airport operators. In 2002, the latest year TSA considered four substantive aircraft operators to conduct watch-list for which data are available, firms in alternatives to the proposed regulation matching as currently done under the this industry earned on average that would have reduced compliance Twelve-Five and Private Charter Rules. approximately $3.8 million in annual costs for small businesses. First, TSA These aircraft operators currently run revenue according to the U.S. Census considered using the current method of their passengers against the No Fly List, which they retrieve from TSA. The Bureau. The cost of complying with the watch-list matching employed by proposed rule would require aircraft proposed rule, as calculated above, aircraft operators under the TFSSP and operators to send passenger information would therefore represent less than 1 PCSSP rules. Second, TSA considered to a TSA-approved watch-list service percent of revenue for a firm with using TSA inspectors to conduct audits provider. The alternative to the average industry revenues. instead of TSA approved third party proposed rule is to extend the current Alternatively, if an airport operator auditors. Third, TSA considered method of watch-list matching under incurred the highest estimated leveraging the Secure Flight program the Twelve-Five and Private Charter compliance cost described above currently under development, which Rules to large aircraft operators that are ($4,420), it would need annual revenues would use a web-based application for of less than $442,000 for the proposed not currently required to have a security transmission of passenger information rule to impose costs of 1 percent of firm program. Operationally, this would to the Secure Flight vetting engine. revenue. Consequently, TSA has require that a total of approximately Fourth, TSA evaluated the incremental initially determined that the rule would 9,835 aircraft operators have direct impact of raising the aircraft weight not impose a significant economic access to the watch-list from TSA. threshold from 12,500 pounds MTOW impact on these types of firms. TSA TSA has rejected this alternative to 16,500 pounds MTOW and the seeks comment on this preliminary based on security grounds. Expanding incremental impact of lowering the conclusion. direct access to the watch-list from 750 As stated above, the proposed rule aircraft weight threshold to 10,500 aircraft operators today to 9,835 under would also affect publicly owned pounds MTOW. This section describes this alternative increases the airports. These airport operators would those alternatives relative to the opportunity for the list to be have to follow the same requirements as proposed regulation. TSA invites compromised and would contradict privately-held airport operators: adopt comments on these or other substantive other TSA initiatives to limit security programs, submit security alternatives to the proposed rule. distribution of the watch-lists. To limit profiles to TSA, and designate and TSA Inspectors the number of entities that have access maintain airport security coordinators. to the watch-list, TSA proposes to Because the requirements for these TSA considered using TSA inspectors require large aircraft operators to submit airports are the same as for the instead of approved third-party auditors passenger information to a TSA- privately-owned airports, TSA to complete the audits proposed in the approved watch-list service provider. estimated the unit compliance costs rule. Under such a scenario, TSA would The proposal would reduce the number using the same methodology. As stated need to hire several new employees to of entities with direct access to the above, TSA calculated that the proposed complete the inspections. Each operator watch-list, thus improving security. rule would impose a cost of between would complete a TSA inspection every Secure Flight Web-Based Application $2,360 and $4,420 per airport operator. other year. Because TSA would conduct Although these airports are publicly all of the inspections, aircraft operators TSA has indicated the use of a web- owned, TSA was unable to locate would no longer pay a biennial fee for based application for some revenue information for them. The audits. This arrangement would reduce transmissions of passenger information Agency was thus unable to compare the primary unit cost estimate for newly to the Secure Flight vetting engine. compliance costs to revenue in order to regulated small aircraft operators from While the design and development of make a judgment on whether the costs $20,308 to $18,051. Assuming a the Secure Flight web-based application represent a significant economic impact ‘‘significant impact’’ is 1 percent of an is in its early stages, TSA subject matter to these firms. operator’s revenues, this change would experts have provided two approaches TSA therefore requests comment on reduce the number of affected small to extending an already established whether the proposed rule would have entities to those having annual revenues web-based application. These costs a significant economic impact on the 68 less than $2.5 million. Unfortunately, reflect an early stage of development to 74 publicly owned small airport TSA was unable to estimate how many and cannot, given this early stage, operators that TSA identified in its operators would be affected by this include costs that may be identified as research. Specifically, TSA requests any change and, as noted in the alternatives TSA proceeds with system information that would allow it to analysis in the Regulatory Evaluation, development. The first approach would

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be developed and implemented with the implementing and complying with their annualized dollars would add $23.7 absence of an implemented LASP and security programs. million to the undiscounted annualized would amount to $23.2 million Fourth, the watch-list matching cost of the rule as proposed. undiscounted over ten years. This service providers would provide the Alternative 2: Raise threshold weight approach posits that without an needed security and do so in a timely to 16,000 pounds MTOW. This option implemented LASP, Secure Flight fashion. Given the security concerns, would reduce the number of regulated would be required to establish a TSA believes a reliable mechanism for aircraft and parties by approximately relationship with each of the aircraft watch-list matching for large aircraft 9,000 aircraft which would ultimately operators. TSA would work with aircraft must be operational without undue decrease the inspection requirements on operators to develop the formatting and delay. While the Secure Flight Program TSA resources. However, excluding transmission procedures for not only for would also provide a reliable these aircraft would increase the the upload of passenger information but mechanism, its development is likely to potential risk and could result in higher also the download of passenger vetting be several years away and it is likely damage potential. TSA believes that this results. These out-reach or ramp-up that it would not be available to address increased risk and damage potential of activities will be borne by the Secure this important security need when TSA aircraft between greater than 12,500 Flight process. The second approach would be ready to implement the LASP. pounds MTOW and 16,000 pounds would be developed and implemented This proposal is consistent with MTOW are not justified by the with the ability to leverage activities current practices in the aviation reduction in cost. Furthermore, moving associated with a fully implemented industry, which frequently rely on the away from the common greater than LASP and would amount to $24.2 Federal Aviation Administration’s 12,500 pounds MTOW threshold will million undiscounted over ten years. designee program. This type of program yield the same concerns discussed in This approach posits that an has been successfully implemented in alternative one. implemented LASP would establish a other related aviation requirements. TSA estimates the cost impact of relationship with each of the aircraft Additionally, the GA industry is very option two, in terms of undiscounted operators during the initial deployment familiar with the third party auditor annualized dollars would subtract $26.4 of the watch-list service provider concept as it relates to safety million from the undiscounted process. During this period both TSA inspections. Many GA operators annualized cost of the rule as proposed. Based on the above discussion and and the watch-list service providers undergo third party audits each year to analysis by TSNM-GA technical experts, would work with aircraft operators to comply with customer requirements. the program office recommends that the develop the formatting and transmission The proposal should be easily integrated threshold of greater than 12,500 pounds procedures for not only for the upload into most GA operator’s existing audit MTOW be maintained as the recognized of passenger information but also the schedules. security threshold weight standard for download of passenger vetting results. Evaluating Different Aircraft Weight current and future GA security programs As a result, Secure Flight would assume Thresholds and policies. Selecting a lower a relatively mature process. The determination of weight must threshold weight would improve Comparison of the First Three take into account a number of factors security because more aircraft would be Alternatives such as the effect on international subject to the LASP but would also harmonization, existing policies and increase the burden to industry to the TSA opted for the proposed plan as programs, and the economic effect on point where the burden may not be fully the more efficient and effective way of the GA community. Discussed below are supported by increased security. applying its limited compliance and two alternatives to the threshold weight Selecting a higher threshold weight enforcement resources towards the issue. would lower the burden on the industry objective of increasing security. The use Alternative 1: Lower threshold weight because a lower number of aircraft of third-parties would allow TSA to to 10,500 pounds MTOW. This solution would be subject to the LASP. However, meet its security mission into four will reduce the associated risk and with this higher threshold weight, the important ways. number of unknown aircraft operators proposed LASP would not cover many First, third-party auditors would by incorporating an additional 3,000- aircraft that can cause significant increase effective TSA oversight by 5,000 aircraft into a mandatory security damage if used as a missile or to deliver reviewing each aircraft operator’s program. This alternative would also a biological, chemical, or nuclear compliance with its security program include a portion of currently weapon. TSA believes that mitigating six months after TSA approves its unregulated types of aircraft, including the potential security risk and damage security program and every two years large turboprops and smaller jet aircraft. potential of large aircraft 16,000 pounds thereafter. However, in order to successfully MTOW or under outweighs the cost Second, given the number of large implement this threshold weight, difference. Consequently, TSA believes aircraft operators (approximately significant modifications to existing that the weight threshold of greater than 10,000), the third-party auditor program security programs and new rulemaking 12,500 pounds MTOW is the would allow TSA to ramp up more would be required, which would result appropriate balance of risk and burden. quickly thereby obtaining the in delayed program/rule timelines. assessment of all large aircraft operators These additional aircraft require TSA Identification of Duplication, Overlap, more quickly relative to a program that oversight and place an additional strain and Conflict With Other Federal Rules relied solely on TSA inspectors, given on existing TSA resources. Furthermore, TSA has identified an overlap the associated hiring and training this change would require additional between the proposed LASP and U.S. associated with new hires. international coordination, since TSA Customs and Border Protection’s (CBP) Third, the third-party auditor program would be moving away from the regulations governing its Advance would allow TSA to focus more of its globally accepted International Civil Passenger Information System (APIS). compliance and enforcement resources Aviation Organization standards. CBP requires certain aircraft flying to or on aircraft operators that are TSA estimates the cost impact of from the United States to submit experiencing problems with option one, in terms of undiscounted passenger manifests to APIS for

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comparison to the watch-lists. CBP’s threshold, resulting in an unfunded 49 CFR Part 1542 watch-list comparison would thus mandate on the private sector. This duplicate TSA’s proposed requirement regulatory evaluation documents costs Airports, Arms and munitions, that large aircraft operators submit and alternatives. TSA will publish a Aviation safety, Law enforcement passenger information to watch-list final analysis, including its response to officers, Reporting and recordkeeping service providers for comparison to the public comments, when it publishes a requirements, Security measures. watch-lists. final rule. 49 CFR Part 1544 In recognition of this overlap, TSA would exempt a flight from its watch- A. Executive Order 13132, Federalism Aircraft, Aircraft operators, Airmen, list requirement flights covered by its TSA has analyzed this notice of Airports, Arms and munitions, Aviation NPRM that also are subject to APIS proposed rulemaking under the safety, Explosives, Freight forwarders, regulations. principles and criteria of E.O. 13132, Law enforcement officers, Reporting and recordkeeping requirements, Security Preliminary Conclusion Federalism. We determined that this action will not have a substantial direct measures. Based on this preliminary analysis, effect on the States, or the relationship TSA has made no determination 49 CFR Part 1550 between the National Government and whether the proposed rule would have the States, or on the distribution of Aircraft, Aviation safety, Security a significant economic impact on a power and responsibilities among the measures. substantial number of small entities various levels of government, and under section 605(b) of the RFA. TSA The Proposed Amendments therefore, does not have federalism requests comment on all aspects of this implications. analysis. TSA will make a final In consideration of the foregoing, the determination in the Final Regulatory B. Environmental Analysis Transportation Security Administration Flexibility Analysis for the Final Rule. proposes to amend Chapter XII of Title TSA has reviewed this action for 49, Code of Federal Regulations, as 3. International Trade Impact purposes of the National Environmental follows: Assessment Policy Act of 1969 (42 U.S.C. 4321– SUBCHAPTER A—ADMINISTRATIVE AND The Trade Agreement Act of 1979 4347) and has determined that this PROCEDURAL RULES prohibits Federal agencies from action will not have a significant effect establishing any standards or engaging on the human environment. PART 1515—APPEAL AND WAIVER PROCEDURES FOR SECURITY in related activities that create C. Energy Impact Analysis unnecessary obstacles to the foreign THREAT ASSESSMENTS FOR commerce of the United States. TSA has assessed the energy impact INDIVIDUALS Legitimate domestic objectives, such as of the action in accordance with the safety, are not considered unnecessary Energy Policy and Conservation Act 1. The authority for part 1515 obstacles. The statute also requires (EPCA), Public Law 94–163, as amended continues to read as follows: consideration of international standards (42 U.S.C. 6362). We have determined Authority: 46 U.S.C. 70105; 49 U.S.C. 114, and, where appropriate, that they be the that this rulemaking is not a major 5103a, 40113, and 46105; 18 U.S.C. 842, 845; basis for U.S. standards. TSA has regulatory action under the provisions 6 U.S.C. 469. assessed the potential effect of this of the EPCA. 2. Amend § 1515.1 by revising notice of proposed rulemaking and has List of Subjects paragraph (a) to read as follows: determined this rule would not have an adverse impact on international trade. 49 CFR Part 1515 § 1515.1 Scope. 4. Unfunded Mandates Assessment Appeals, Commercial drivers license, (a) Appeal. This part applies to The Unfunded Mandates Reform Act Criminal history background checks, applicants who are appealing an Initial of 1995 is intended, among other things, Explosives, Facilities, Hazardous Determination of Threat Assessment or to curb the practice of imposing materials, Incorporation by reference, an Initial Determination of Threat unfunded Federal mandates on State, Maritime security, Motor carriers, Motor Assessment and Immediate Revocation local, and tribal governments. Title II vehicle carriers, Ports, Seamen, Security in a security threat assessment as requires each Federal agency to prepare measures, Security threat assessment, described in: a written statement assessing the effects Vessels, Waivers. (1) 49 CFR part 1572 for a hazardous of any Federal mandate in a proposed or 49 CFR Part 1520 materials endorsement (HME) or a final agency rule that may result in an Transportation Worker Identification expenditure of $100 million or more Air transportation, Law enforcement Credential (TWIC); officers, Reporting and recordkeeping (adjusted annually for inflation) in any (2) 49 CFR part 1540, subpart C, for requirements, Security measures. one year by State, local, and tribal air cargo workers; or governments, in the aggregate, or by the 49 CFR Part 1522 (3) 49 CFR part 1544, subpart G, for private sector; such a mandate is large aircraft flight crew members, deemed to be a ‘‘significant regulatory Accounting, Aircraft operators, individuals authorized to perform action.’’ This notice of proposed Aviation safety, Reporting and screening functions, TSA-approved rulemaking does not exceed this recordkeeping requirements, Security auditors and watch-list service provider threshold for State, local, and tribal measures. covered personnel. governments; however, proposed 49 CFR Part 1540 security measures for city- or county- * * * * * owned airports may nevertheless Aircraft operators, Airports, Aviation 3. Amend § 1515.5 by revising impose a burden on some small safety, Law enforcement officers, introductory text in paragraphs (a), (c), municipalities. The impact on the Reporting and recordkeeping and (h), and adding paragraphs (a)(4) overall economy does exceed the requirements, Security measures. and (h)(3) to read as follows:

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§ 1515.5 Appeal of Initial Determination of personnel poses a security threat as (a) Each airport operator, aircraft Threat Assessment based on criminal provided in 49 CFR 1544.609. operator, TSA-approved auditor, conviction, immigration status, or mental independent public accounting firm capacity. * * * * * (f) Appeal of immediate revocation. If attesting to compliance under part 1544, (a) Scope. This section applies to TSA directs an immediate revocation, subpart F, watch-list service provider, applicants appealing from an Initial the applicant may appeal this and fixed base operator subject to the Determination of Threat Assessment determination by following the appeal requirements of subchapter C of this that was based on one or more of the procedures described in paragraph (b) of chapter, and each armed security officer following: this section. This applies— under subpart B of part 1562. * * * * * * * * * * * * * * * (4) TSA has determined that a large (4) If TSA withdraws a Determination 9. Add new part 1522 to subchapter aircraft flight crew member, an of No Security Threat issued to a large B to read as follows: individual authorized to perform aircraft flight crew member, an PART 1522—TSA-APPROVED AUDITORS screening functions, an applicant to individual authorized to perform become a TSA-approved auditor, or a screening functions, a TSA-approved Subpart A—General watch-list service provider covered auditor, or a service provider covered Sec. personnel has a disqualifying criminal personnel. 1522.1 Scope and terms used in this part. offense described in 49 CFR 5. Amend § 1515.11 by revising the 1522.3 Qualifications. 1544.229(d). introductory text in paragraph (a) and 1522.5 Application. * * * * * adding paragraph (a)(4) to read as 1522.7 TSA review and approval. (c) Final Determination of Threat follows: 1522.9 Reconsideration of disapproval of an application. Assessment. (1) If the Assistant 1522.11 Withdrawal of approval. Administrator concludes that an HME § 1515.11 Review by administrative law judge and TSA Final Decision Maker. 1522.13 Responsibilities of TSA-approved or TWIC applicant does not meet the (a) Scope. This section applies to the auditors. standards described in 49 CFR 1522.15 Fraud and intentional falsification 1572.103, 1572.105, or 1572.109, or that following applicants: of records. a large aircraft flight crew member, an * * * * * 1522.17 TSA Inspection authority. (4) A large aircraft flight crew individual authorized to perform Subpart B [Reserved] screening functions, an applicant to member, an individual authorized to become a TSA-approved auditor, or a perform screening functions, a TSA- Subpart C—Auditors for the Large Aircraft service provider covered personnel does approved auditor, or a service provider Security Program. not meet the requirements in 49 CFR covered personnel, or an applicant to Sec. 607, TSA serves a Final Determination become one, who has been issued a 1522.201 Applicability. of Threat Assessment upon the Final Determination of Threat 1522.203 Additional qualification requirements. applicant. In addition— Assessment after an appeal as described in 49 CFR 1515.5 or 1515.9. 1522.205 Audit report. * * * * * 1522.207 Training. (h) Appeal of immediate revocation. If * * * * * 1522.209 Biennial Review. TSA directs an immediate revocation, SUBCHAPTER B—SECURITY RULES FOR ALL Authority: 49 U.S.C. 114, 5103, 40113, the applicant may appeal this MODES OF TRANSPORTATION 44901–44907, 44913–44914, 44916–44918, determination by following the appeal 44932, 44935–44936, 44942, 46105. procedures described in paragraph (b) of PART 1520—PROTECTION OF this section. This applies— SENSITIVE SECURITY INFORMATION PART 1522—TSA-APPROVED AUDITORS * * * * * 6. The authority citation for part 1520 (3) If TSA withdraws a Determination continues to read as follows: Subpart A—General of No Security Threat issued to a large Authority: 46 U.S.C. 70102–70106, 70117; § 1522.1 Scope and terms used in this aircraft flight crew member, an 49 U.S.C. 114, 40113, 44901–44907, 44913– part. individual authorized to perform 44914, 44916–44918, 44935–44936, 44942, screening functions, a TSA-approved 46105. (a) This part governs the approval and auditor, or a service provider covered 7. Amend § 1520.5 by revising responsibilities of persons conducting personnel. paragraph (b)(1)(i) to read as follows: security audits of large aircraft operators 4. Amend § 1515.9 by revising the that are required to have a security introductory text in paragraphs (a) and § 1520.5 Sensitive security information. program under part 1544. (f), and adding paragraphs (a)(3) and * * * * * (b) In addition to the terms in §§ (f)(4) to read as follows: (b) * * * 1500.3 and 1540.5 of this chapter, the (1) * * * following terms apply in this part: § 1515.9 Appeal of security threat (i) Any aircraft operator, airport Applicant means an individual who assessment based on other analyses. operator, watch-list service provider, or seeks to become a TSA-approved (a) Scope. This section applies to an fixed base operator security program, or auditor under this part. applicant appealing an Initial security contingency plan under this Conflict of interest means a situation Determination of Threat Assessment as chapter; when the TSA-approved auditor has follows: * * * * * impairments that might affect their * * * * * 8. Amend § 1520.7 by revising the ability to do their work and report their (3) TSA had determined that a large introductory text and paragraph (a) to findings impartially. Examples of aircraft flight crew member, an read as follows: situations where a TSA-auditor would individual authorized to perform have a conflict of interest include but screening functions, an applicant to § 1520.7 Covered persons. are not limited to any of the following: become a TSA-approved auditor, or a Persons subject to the requirements of (1) The TSA-approved auditor has watch-list service provider covered part 1520 are: official, professional, personal, or

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financial relationships that might cause TSA recognizes as qualified to certify or (2) The notice of proposed withdrawal an auditor to limit the extent of the accredit an auditor for the type of audit of approval will include the basis of the inquiry, to limit disclosure, or to that the applicant seeks to perform; and withdrawal of approval. weaken or distort audit findings in any (3) A statement of how the applicant (3) Unless the auditor files a written way. meets the qualifications set forth on petition for reconsideration under (2) The TSA-approved auditor had § 1522.3. paragraph (d) of this section, the notice previous responsibility for decision- of proposed withdrawal of approval will § 1522.7 TSA review and approval. making or managing an entity that become a final notice of withdrawal of would affect current operations of the (a) Review. Upon receiving an approval 31 days after the auditor’s entity or program being audited. application, TSA will review the receipt of the notice of proposed (3) The TSA-approved auditor application. TSA will approve the withdrawal of approval. currently or previously maintained the application if the applicant meets the (c) Emergency notice of withdrawal of official records that are the subject of qualifications described in § 1522.3 and approval. (1) If TSA finds that there is the audit. other applicable qualifications an emergency requiring immediate (4) The TSA-approved auditor has described in this part and TSA action with respect to a TSA-approved financial interest that is direct, or is determines that approval is in the auditor’s ability to perform audits, TSA substantial though indirect, in the interest of safety and the public. may withdraw approval of that auditor (b) Approval. If an application is audited entity or program. without prior notice. (5) An immediate family member of approved, TSA will send the applicant (2) TSA will incorporate in the the TSA-approved auditor is an officer a written notice of approval. Once emergency notice of withdrawal of approved, an auditor may conduct of the operator that is the subject of the approval a brief statement of the reasons audits in which he or she does not have audit. and findings for the withdrawal of (6) The TSA-approved auditor or an a conflict of interest. (c) Disapproval. TSA will send a approval. entity with which the TSA-approved (3) The emergency notice of written notice of disapproval to an auditor has an employment relationship withdrawal of approval is effective upon applicant whose application is provides to the operator being audited the TSA-approved auditor’s receipt of disapproved. The notice of disapproval non-audit services that relate to the the notice. The auditor may file a operator’s security program. will include the basis of the disapproval of the application. written petition for reconsideration TSA-approved auditor or auditor under paragraph (d) of this section; means any individual who has been § 1522.9 Reconsideration of disapproval of however, this petition does not stay the approved under this part to conduct an an application. effective date of the emergency notice of audit required under this chapter. (a) Petition for reconsideration. If an withdrawal of approval. § 1522.3 Qualifications. application is disapproved, the (d) Petition for reconsideration. An To be considered for approval as an applicant may seek reconsideration of auditor may seek reconsideration of the auditor, the applicant must— the decision by submitting a written withdrawal of approval by submitting a (a) Have sufficient facilities, petition for reconsideration to the written petition for reconsideration to resources, and personnel to perform the Assistant Secretary or designee within the Assistant Secretary or designee required audit responsibilities; 30 days of receiving the notice of within 30 days of receiving the notice of (b) Have knowledge of the Federal disapproval. The written petition for withdrawal of approval. statutory and regulatory requirements reconsideration must include a (e) Review of petition. Upon review of and experience understanding and statement and any supporting the written petition for reconsideration, interpreting Federal statutes and documentation explaining why the the Assistant Secretary or designee regulations; applicant believes the reason for disposes of the petition by either (c) Have sufficient, relevant disapproval is incorrect. affirming or withdrawing the notice of experience to perform the required audit (b) Review of petition. Upon review of withdrawal of approval. The Assistant responsibilities; the petition for reconsideration, the Secretary or designee may request (d) Obtain a certification or Assistant Secretary or designee disposes additional information from the auditor accreditation from an organization that of the petition by either affirming the prior to rendering a decision. TSA recognizes as qualified to certify or disapproval of the application or approving the application. The § 1522.13 Responsibilities of TSA- accredit an auditor for the type of audit approved auditors. that the applicant seeks to perform; and Assistant Secretary or designee may (e) Demonstrate the ability to prepare request additional information from the (a) Standards for audit. Each auditor clear and thorough written reports and applicant prior to rendering a decision. must perform an audit, in a form and manner prescribed by TSA, to other documents required for the § 1522.11 Withdrawal of approval. auditing function they will perform and determine whether the operator is in (a) Basis for withdrawal of approval. demonstrate excellent oral compliance with applicable TSA TSA may withdraw approval of a TSA- communication skills. requirements. approved auditor if the auditor ceases to (b) Conflict of interest. No auditor § 1522.5 Application. meet the standards for approval, fails to may undertake an audit in which he or (a) Each applicant must submit an fulfill his or her responsibilities under she has a conflict of interest as defined application in a form and manner § 1522.11, or it is in the interest of in § 1552.1. prescribed by TSA. security or the public, such as failure to (c) Audit report. Each auditor must (b) An application must include the report an imminent threat under prepare and submit a report, in a form following information: § 1522.11(c). and manner prescribed by TSA, for each (1) The applicant’s full name, (b) Notice of withdrawal of approval. audit that he or she performs. business address, business phone (1) Except as provided in paragraph (c) (d) Immediate notification to TSA. If number, and business email address; of this section, TSA will provide a during the course of an audit the auditor (2) A copy of the applicant’s written notice of proposed withdrawal believes that there is or may be an certification from an organization that of approval to the auditor. instance of noncompliance with TSA

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requirements that presents an imminent conduct audits of operators of large of interest in conducting the audit and threat to transportation security or aircraft that are required to have a that the audit was conducted public safety, the auditor must report security program under 49 CFR impartially, professionally, and the instance immediately to TSA. 1544.101(b). consistent with the standards set forth (e) Change in information. Each by TSA. auditor must inform TSA of any change § 1522.203 Additional qualification (5) The third party auditor must retain requirements. in the information described in § 1522.3 copies of completed audit reports for 36 and 1522.5. In addition to the requirements set calendar months. (f) No authorization to take remedial forth in § 1522.3, an applicant seeking to or disciplinary action. The auditor is not obtain approval to audit aircraft § 1522.207 Training. authorized to require any remedial or operators that are required to have a (a) Initial training. Each TSA- disciplinary action against the person security program under 49 CFR approved auditor must complete the subject to the audit. 1544.101(b) must have the following initial training prescribed by TSA before (g) Sensitive Security Information. qualifications: conducting any audit under this Each TSA-approved auditor must (a) The applicant must have at least subchapter. comply with the requirements in 49 five years of experience in inspection or (b) Recurrent training. Each TSA- CFR part 1520 regarding the handling auditing compliance with State or approved auditor must complete and protection of Sensitive Security Federal regulations in the security recurrent training prescribed by TSA 24 Information. industry, the aviation industry, or months after his or her most recent (h) Non-disclosure of proprietary government programs. The five years of TSA-prescribed training. If the TSA- information. Unless explicitly experience must have been obtained approved auditor completes the authorized by TSA, each auditor may within 10 years of the date of the recurrent training in the month before or not make an unauthorized release or application. the month after it is due, the TSA- dissemination of any information that (b) The applicant must present three approved auditor is considered to have TSA or a large aircraft operator indicates professional references that address the taken it in the month it is due. as proprietary information and provides applicant’s abilities in inspection or § 1522.209 Biennial review. to the auditor. auditing and written communications. (c) Maintain a current accreditation or (a) Initial review. Except as otherwise § 1522.15 Fraud and intentional certification required in § 1522.3(d). required by TSA, each TSA-approved falsification of records. (d) The applicant must have sufficient auditor must submit the following No auditor may make, or cause to be knowledge of, and ability to determine information within 24 months after the made, any of the following: compliance with, regulations, policies, auditor is approved under § 1522.5. If (a) Any fraudulent or intentionally directives, rules, and regulations, the TSA-approved auditor submits the false statement in any application under pertaining to the large aircraft security following information in the month this part. program. before or the month after it is due, the (b) Any fraudulent or intentionally (e) The applicant must have sufficient TSA-approved auditor is considered to false entry in any record or report that knowledge of and ability to apply the have submitted the information in the is kept, made, or used to show concepts, principles, and methods of month it is due: compliance with this subchapter, or compliance with the requirements of the (1) Evidence that the auditor exercise any privileges under this part. large aircraft security program to successfully completed the initial (c) Any reproduction or alteration, for include assessment, inspection, training under § 1522.207(a) and any fraudulent purpose, of any report, investigation, and reporting of recurrent training described record, security program, access compliance with the large aircraft § 1522.207(b); and medium, or identification medium security program. (2) Evidence that the auditor issued or submitted under this part. (f) The applicant must successfully continues to be certified or accredited § 1522.17 TSA inspection authority. undergo a security threat assessment by an organization that TSA recognizes under 49 CFR part 1544, subpart G, and as qualified to certify or accredit an (a) Each TSA-approved auditor must auditor for the large aircraft security allow TSA, at any time or place, to make have a valid Determination of No Security Threat. program. any inspections, including copying (b) Recurrent review. Except as records, to determine compliance of a § 1522.205 Audit report. otherwise required by TSA, each TSA- TSA-approved auditor or an operator (a) Each TSA-approved auditor must approved auditor must submit the required to submit to an audit under prepare and submit a written audit following information 24 months after this subchapter with: report to TSA in a manner and form the auditor submitted the information (1) This subchapter and any security prescribed by TSA within 30 days of required under paragraph (a) or (b) of program under this subchapter, and part completing an audit. this section. If the TSA-approved 1520 of this chapter; and auditor submits the following (2) 49 U.S.C. Subtitle VII, as amended. (b) The audit report must include the (b) At the request of TSA, each TSA- following information: information in the month before or the approved auditor must provide (1) A description of the facilities, month after it is due, the TSA-approved evidence of compliance with this part. equipment, systems, processes, and/or auditor is considered to have submitted procedures that were audited. the information in the month it is due: Subpart B [Reserved] (2) The auditor’s findings regarding (1) Evidence that the auditor the operator’s compliance with TSA successfully completed the initial Subpart C—Auditors for the Large requirements. training under § 1522.207(a) and any Aircraft Security Program (3) Conclusions on the systems, recurrent training described processes, and/or procedures that were § 1522.207(b); and § 1522.201 Applicability. audited. (2) Evidence that the auditor This subpart applies to auditors who (4) Signed attestation by the auditor continues to be certified or accredited seek to obtain approval from TSA to that he or she did not have any conflicts by an organization that TSA recognizes

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as qualified to certify or accredit an approval of a security program, if TSA immediate action that makes the auditor for the large aircraft security determines continued operation is procedures in this section contrary to program. contrary to security and the public the public interest, the designated interest, as follows: official may issue an Emergency SUBCHAPTER C—CIVIL AVIATION SECURITY (1) Notice of proposed withdrawal of Withdrawal of Approval of a security PART 1540—CIVIL AVIATION approval. TSA will serve a Notice of program without first issuing a Notice of SECURITY: GENERAL RULES Proposed Withdrawal of Approval, Proposed Withdrawal of Approval. The which notifies the holder of the security Emergency Withdrawal would be 10. The authority citation for part program, in writing, of the facts, effective on the date that the holder of 1540 continues to read as follows: charges, applicable law, regulation, or the security program receives the Authority: 49 U.S.C. 114, 5103, 40113, order that form the basis of the emergency withdrawal. In such a case, 44901–44907, 44913–44914, 44916–44918, determination. the designated official will send the 44935–44936, 44942, 46105. (2) Security program holder’s reply. holder of the security program a brief The holder of the security program may statement of the facts, charges, Subpart A—General respond to the Notice of Proposed applicable law, regulation, or order that Withdrawal of Approval no later than 11. Amend § 1540.5 by adding the forms the basis for the Emergency 15 calendar days after receipt of the definition of ‘‘Standard security Withdrawal. The holder of the security withdrawal by providing the designated program’’ in alphabetical order to read program may submit a Petition for official, in writing, with any material as follows: Reconsideration under the procedures facts, arguments, applicable law, and in paragraphs (b)(4) through (b)(5) of § 1540.5 Terms used in this subchapter. regulation. this section; however, this petition will * * * * * (3) TSA review. The designated not stay the effective date of the Standard security program means a official will consider all information Emergency Withdrawal. security program issued by TSA that available, including any relevant (c) Service of documents for serves as a baseline for a particular type material or information submitted by withdrawal of approval of security of operator. If TSA has issued a standard the holder of the security program, program proceedings. Service may be security program for a particular type of before either issuing a Withdrawal of accomplished by personal delivery, operator, unless otherwise authorized Approval of the security program or certified mail, or express courier. by TSA, each operator’s security rescinding the Notice of Proposed Documents served on the holder of a program consists of the standard Withdrawal of Approval. If TSA issues security program will be served at its security program together with any a Withdrawal of Approval, it becomes official place of business as designated amendments and alternative procedures effective upon receipt by the holder of in its application for approval or its approved or accepted by TSA. the security program, or 15 calendar security program. Documents served on days after service, whichever occurs * * * * * TSA must be served to the address first. noted in the Notice of Withdrawal of (4) Petition for reconsideration. The Subpart B—Responsibilities of Approval or Withdrawal of Approval, holder of the security program may Passengers and Other Individuals and whichever is applicable. petition TSA to reconsider its Persons (1) Certificate of service. An Withdrawal of Approval by serving a individual may attach a certificate of 12. Revise § 1540.107(c) to read as petition for consideration no later than service to a document tendered for follows: 15 calendar days after the holder of the filing. A certificate of service must security program receives the consist of a statement, dated and signed § 1540.107 Submission to screening and Withdrawal of Approval. The holder of inspection. by the person filing the document, that the security program must serve the the document was personally delivered, * * * * * Petition for Reconsideration on the served by certified mail on a specific (c) An individual must provide his or designated official. Submission of a date, or served by express courier on a her full name, as defined in § 1560.3, Petition for Reconsideration will not specific date. when— stay the Withdrawal of Approval. The (2) Date of service. The date of service (1) The individual makes a holder of the security program may is— reservation for a covered flight, as request the designated official to stay (i) The date of personal delivery; defined in § 1560.3. the Withdrawal of Approval pending (ii) If served by certified mail, the (2) The individual makes a request for review of and decision on the Petition. mailing date shown on the certificate of authorization to enter a sterile area. (5) Assistant Secretary’s review. The service, the date shown on the postmark (3) An aircraft operator described in designated official transmits the Petition if there is no certificate of service, or § 1544.101(b) requests the individual’s together with all pertinent information other mailing date shown by other full name under § 1544.245(b). to the Assistant Secretary for evidence if there is no certificate of 13. Add new subpart D to part 1540 reconsideration. The Assistant Secretary service or postmark; or to read as follows: will dispose of the Petition within 15 (iii) If served by express courier, the Subpart D—Responsibilities of Holders calendar days of receipt by either service date shown on the certificate of of TSA-Approved Security Programs directing the designated official to service, or by other evidence if there is rescind the Withdrawal of Approval or no certificate of service. § 1540.301 Withdrawal of approval of a by affirming the Withdrawal of (d) Extension of time. TSA may grant security program. Approval. The decision of the Assistant an extension of time to the limits set (a) Applicability. This section applies Secretary constitutes a final agency forth in this section for good cause to holders of a security program order subject to judicial review in shown. A security program holder’s approved or accepted by TSA under 49 accordance with 49 U.S.C. 46110. request for an extension of time must be CFR chapter XII, subchapter C. (6) Emergency withdrawal. If TSA in writing and be received by TSA at (b) Withdrawal of security program finds that there is an emergency with least two days before the due date in approval. TSA may withdraw the respect to aviation security requiring order to be considered. TSA may grant

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itself an extension of time for good (2) A description of the law aircraft with a maximum certificated cause. enforcement support used to comply takeoff weight of over 12,500 pounds. with § 1542.215(b). * * * * * PART 1542—AIRPORT SECURITY (3) Training program for law enforcement personnel required under Subpart B—Security Program 14. The authority citation for part § 1542.217(c)(2), if applicable. 1542 continues to read as follows: (4) A system for maintaining the § 1544.101 [Amended] Authority: 49 U.S.C. 114, 5103, 40113, records described in § 1542.221. 18. Amend § 1544.101 as follows: 44901–44907, 44913–44914, 44916–44918, (5) Procedures for the distribution, a. Revise paragraph (a) introductory 44935–44936, 44942, 46105. storage, and disposal of Sensitive text; 15. Amend § 1542.103 by revising Security Information (which, as defined b. Revise paragraph (b); introductory text of paragraphs (a) and in § 1520.5, includes security programs, c. Remove and reserve paragraphs (c), (b), revising paragraphs (c) and (d), and Security Directives, Information (d), (e), and (f); adding new paragraphs (e) and (f) to Circulars, and implementing d. Revise paragraph (g) to read as read as follows: instructions), and, as appropriate, follows; classified information. e. Revise paragraph (h) introductory Subpart B—Airport Security Program (6) Procedures for public advisories as text; and specified in § 1542.305. f. Remove paragraph (i). § 1542.103 Content. (7) Incident management procedures The revisions read as follows: used to comply with § 1542.307. (a) Complete program. Except as § 1544.101 Adoption and implementation. otherwise approved by TSA, each (e) Provisional program. (1) An airport airport operator regularly serving operator that is not subject to paragraph (a) Full program. Each aircraft operations of an aircraft operator or (a), (b), or (c) of this section may request operator holding an operating certificate foreign air carrier described in TSA to review and approve its security under 14 CFR part 119 must carry out § 1544.101(a)(1) or § 1546.101(a) of this program. the requirements in subparts C, D, and chapter, must adopt and carry out a (2) TSA may approve the security E of this part specified in § 1544.103 (c) complete program, and include in its program if it determines that approval is and must adopt and carry out a security security program the following: in the interest of safety and the public program that meets the requirements of using the procedures described in §§ 1544.103(a), (b), and (c) for each of * * * * * § 1544.105(a). the following operations: (b) Supporting program. Except as (3) The airport operator must comply * * * * * otherwise approved by TSA and except with the security program approved for airports that are required to adopt a (b) Large aircraft program. Each under this paragraph (e). aircraft operator must carry out the complete program under paragraph (a) (4) An airport operator or TSA may of this section, each airport regularly requirements in subparts C, D, and E of amend an approved security program this part specified in §§ 1544.103(e) and serving operations of an aircraft operator using the procedures described in or foreign air carrier described in (f) and must adopt and carry out a § 1544.105. security program that meets the § 1544.101(a)(2) or § 1546.101(b) or (c) (5) TSA may withdrawal approval of of this chapter, must adopt and carry requirements of §§ 1544.103(a), (b), (e), a security program using the procedures and (f) for each operation that meets all out a supporting program, and include described in § 1540.301 if it determines in its security program a description of of the following: that withdrawal of approval is in the (1) Is an aircraft with a maximum the following: interest of safety and the public. certificated takeoff weight of over * * * * * (f) Use of appendices. The airport 12,500 pounds. (c) Partial program. Except as operator may comply with paragraphs (2) Is in any civil operation. otherwise approved by TSA and except (a), (b), (c), and (d) of this section by (3) Is not one of the following: for airports that are required to adopt a including in its security program, as an (i) Operating under a full program complete program under paragraph (a) appendix, any document that contains under paragraph (a) of this section; of this section or a supporting program the information required by paragraphs (ii) Operating under a full all-cargo under paragraph (b) of this section, each (a), (b), (c), and (d) of this section. The program under paragraph (h) of this of the following airports must adopt and appendix must be referenced in the section; carry out a partial program, and must corresponding section(s) of the security (iii) A public aircraft as described in include in its security program the program. 49 U.S.C. 40102, provided that the requirements in paragraph (d) of this aircraft operator obtains security PART 1544—AIRCRAFT OPERATOR section. procedures from TSA if the aircraft SECURITY (1) Each airport regularly serving large deplanes into or enplanes from a sterile aircraft operations of an aircraft operator 16. The authority citation for part area; or described in § 1544.101(b) with 1544 continues to read as follows: (iv) A government charter under scheduled or public charter operations. Authority: 49 U.S.C. 114, 5103, 40113, paragraph (2) of the definition of private (2) Each reliever airport as defined in 44901–44905, 44907, 44913–44914, 44916– charter in § 1540.5 of this chapter, 49 U.S.C. 47102(22). 44918, 44932, 44935–44936, 44942, 46105. provided that aircraft does not deplane (d) Partial program content. Except as into or enplane from a sterile area and otherwise approved by TSA, each Subpart A—General the government takes security responsibility for the following: airport described in paragraph (c) of this 17. Amend § 1544.1 by revising (A) The aircraft; section must include in its security paragraph (a)(1) to read as follows: program a description of the following: (B) Persons onboard; and (1) Name, means of contact, duties, § 1544.1 Applicability of this part. (C) Property onboard. and training requirements of the airport (a) * * * * * * * * security coordinator as required under (1) The operations of aircraft operators (g) Limited program. Each aircraft § 1542.3. engaged in any civil operation in an operator that is not required to have a

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full program, a large aircraft program or (13) Section 1544.225, Security of the training and training for individuals a full all-cargo program, as identified in aircraft and facilities. with security-related duties. paragraphs (a), (b), and (h) of this (14) Section 1544.227, Exclusive area (16) Section 1544.237, Flight deck section respectively, may request a agreements. privileges. security program from TSA. Each (15) Section 1544.228, Access to cargo (17) Section 1544.301, Contingency aircraft operator with a limited program and security threat assessments for plan. must carry out selected provisions of cargo personnel in the United States. (18) Section 1544.303, Bomb or air subparts C, D, and E of this part, as (16) Sections 1544.229 and 1544.230, piracy threats. provided by TSA and must adopt and Fingerprint-based criminal history (19) Section 1544.305, Security carry out the provisions of § 1544.305, records checks. directives and information circulars. as specified in its security program. (17) Section 1544.231, Airport- (20) Other provisions of subpart C of (h) Full all-cargo program. Each approved and exclusive area personnel this part that TSA has approved upon aircraft operator holding an operating identification systems. request. certificate under 14 CFR part 119 or 14 (18) Sections 1544.233 and 1544.235, (21) The remaining requirements of CFR part 125 must carry out the Security coordinators and crewmember subpart C of this part when TSA notifies requirements in subparts C, D, and E of training and training for individuals the aircraft operator in writing that a this part specified in § 1544.103(d) and with security-related duties. security threat exists concerning that must adopt and carry out a security (19) Section 1544.237, Flight deck operation. program that meets the requirements of privileges. (e) Content of a security program for §§ 1544.103(a), (b), and (d) for each (20) Section 1544.241, Regarding a large aircraft operator. The standard operation that is— voluntary provision of emergency security program for large aircraft * * * * * services. operators described in § 1544.101(b) is 19. Amend § 1544.103 by adding (21) Section 1544.301, Contingency the large aircraft security program paragraph (a)(4), revising paragraph (c), plan. (LASP). The security program must and adding paragraphs (d), (e), and (f) to (22) Section 1544.303, Bomb or air include the following and any read as follows: piracy threats. applicable requirements in paragraph (f) (23) Section 1544.305, Security of this section: § 1544.103 Form, content, and availability. directives and information circulars. (1) Section 1544.206, Person and (a) * * * (d) Content of a security program for property onboard a large aircraft. (4) Includes the standard security a full all-cargo program. The standard (2) Section 1544.215, Security program issued by TSA, together with security program for a full all-cargo coordinators. any amendments and alternate aircraft operator described in (3) Section 1544.217, Law procedures approved or accepted by § 1544.101(h) is the Full All-Cargo enforcement personnel. TSA for the aircraft operator. Aircraft Operator Standard Security (4) Section 1544.219, Carriage of * * * * * Program (FACAOSSP). The security accessible weapons. (c) Content of a security program for program must include the following: (5) Section 1544.223(i), a full program aircraft operator. The (1) Section 1544.202, Persons and Transportation of Federal Air Marshals. standard security program for a full property onboard an all-cargo aircraft. (6) Section 1544.225, Security of the program aircraft operator described in (2) Section 1544.205, Acceptance and aircraft and facilities. § 1544.101(a) is the Aircraft Operator screening of cargo. (7) Sections 1544.233 and 1544.235, Standard Security Program (AOSSP). (3) Section 1544.207, Inspection of Security coordinators and crewmember The security program must include the individuals and property. training. (8) Section 1544.241, Voluntary following: (4) Section 1544.209, Use of metal (1) Section 1544.201, Acceptance and detection devices. provision of emergency services if the screening of individuals and accessible (5) Section 1544.211, Use of x-ray large aircraft operator holds an Air property. systems. Carrier Certificate under 14 CFR part (2) Section 1544.203, Acceptance and (6) Section 1544.215, Security 119. screening of checked baggage. coordinators. (9) Section 1544.243, Third party (3) Section 1544.205, Acceptance and (7) Section 1544.217, Law audit. screening of cargo. enforcement personnel. (10) Section 1544.245, Passenger (4) Section 1544.207, Inspection of (8) Section 1544.219, Carriage of vetting for large aircraft operators. individuals and property. accessible weapons. (11) Sections 1544.301(a) and (b), (5) Section 1544.209, Use of metal (9) Section 1544.223(a) through (h), Contingency plan. detection devices. Transportation of Federal Air Marshals. (12) Section 1544.303, Bomb or air (6) Section 1544.211, Use of X-ray (10) Section 1544.225, Security of the piracy threats. systems. aircraft and facilities. (13) Section 1544.305, Security (7) Section 1544.213, Use of (11) Section 1544.227, Exclusive area directives and information circulars. explosives detection systems. agreements. (14) Part 1544, subpart G, Security (8) Section 1544.215, Security (12) Section 1544.228, Access to cargo threat assessment for flight crew. coordinators. and security threat assessments for (15) Except as provided in paragraph (9) Section 1544.217, Law cargo personnel in the United States. (f)(1) of this section, an aircraft operator enforcement personnel. (13) Sections 1544.229 and 1544.230, must seek alternative procedures from (10) Section 1544.219, Carriage of Fingerprint-based criminal history TSA for the screening of individuals accessible weapons. records checks. and property for an aircraft that (11) Section 1544.221, Carriage of (14) Section 1544.231, Airport- enplanes from or deplanes into a sterile prisoners under the control of armed approved and exclusive area personnel area. law enforcement officers. identification systems. (16) Other provisions of subparts C, D, (12) Section 1544.223(a) through (h), (15) Sections 1544.233 and 1544.235, and E of this part that TSA has Transportation of Federal Air Marshals. Security coordinators and crewmember approved upon request.

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(17) The remaining requirements of (A) The aircraft operator’s business notice to modify under paragraph (a)(4) subparts C, D, and E of this part when name and other names, including of this section. TSA notifies the aircraft operator that a ‘‘doing business as’’; (3) Approval. TSA will approve the security threat exists concerning that (B) Address of the aircraft operator’s security program upon determining operation. primary place of business or that— (f) Additional requirements for large headquarters; (i) The aircraft operator has met the aircraft operators. In addition to the (C) The aircraft operator’s state of requirements of this part, its security requirements in paragraph (e) of this incorporation, if applicable; and program, and any applicable Security section each aircraft operator described (D) The aircraft operator’s tax Directives; in § 1544.101(b) must include in its identification number. (ii) The aircraft operator is able and security program, the applicable (ii) Each aircraft operator under the willing to carry out the requirements of requirements of this paragraph (f). large aircraft program as described in its security program; (1) Large aircraft over 45,500 § 1544.101(b) must include the (iii) The approval of the security kilograms (100,309.3 pounds) or with a following in its application: program is not contrary to the interests passenger-seating configuration of 61 or (A) The business name and other of security and the public interest; and more. For large aircraft operated for names, including ‘‘doing business as.’’ If (iv) The aircraft operator has not held compensation or hire with a maximum the applicant holds or is applying for a a security program that was withdrawn, certificated take-off weight of over FAA operating certificate, the business unless otherwise authorized by TSA. 45,500 kilograms (100,309.3 pounds), or name must be the same as the name on (4) Modification. (i) If a security a passenger-seating configuration of 61 the FAA operating certificate. program does not satisfy the or more, each aircraft operator must (B) The names and addresses of each requirements in paragraph (a)(3) of this include in its security program the proprietor, general partner, officer, section, TSA will provide the aircraft following: (i) Section 1544.201, Acceptance and director, and owner of an aircraft operator written Notice to Modify the screening of individuals and their identified under § 1544.101(b). security program to comply with the accessible property. (C) A signed statement from each applicable requirements of this part. (ii) Section 1544.207(c), Inspection of person listed in paragraph (a)(1)(ii) of (ii) The aircraft operator may either individuals and property. this section stating whether he or she submit a modified security program to (iii) Section 1544.223(a) through (h), has been a proprietor, general partner, TSA for approval, or a petition for Transportation of Federal Air Marshals. officer, director, or owner of a large Reconsideration of Notice to Modify (iv) Procedures for ensuring that each aircraft that had its security program within 30 days of receipt of the Notice of the following individuals have withdrawn or suspended by TSA. to modify. A Petition for successfully undergone a security threat (D) If the applicant holds a FAA Reconsideration must be filed with the assessment under subpart G of this part operating certificate, the FAA operating designated official. before granting the individual authority certificate number. (iii) The designated official, upon to perform screening functions: (E) If the applicant does not have a receipt of a Petition for Reconsideration, (A) Individuals who screen FAA operating certificate, the type of either amends or withdraws the Notice, passengers or property that will be operation under which the applicant or transmits the Petition, together with carried in a cabin of the aircraft. operates, for example operating under any pertinent information, to the (B) Individuals who serve as 14 CFR part 91. Assistant Secretary for reconsideration. immediate supervisors or the next (F) The name, title, address, phone The Assistant Secretary may dispose of supervisory level to those individuals number, and electronic mail address of the Petition within 30 days of receipt by described in paragraph (a)(1)(iv)(A) of the Aircraft Operator Security either directing the designated official to this section. Coordinator (AOSC) and any alternates. withdraw or amend the Notice to (2) All-Cargo operations for aircraft The telephone number provided must Modify, or by denying the Petition and with an MTOW of over 12,500 pounds. be a number where at least one AOSC affirming the Notice to Modify. A large aircraft operator in an all-cargo may be reached. (5) Commencement of operations. The operation must include the following in (G) A statement acknowledging and aircraft operator may operate under an its security program: ensuring that each employee and agent approved security program when it (i) Section 1544.202, Persons and of the aircraft operator, who is subject meets all requirements, including but property onboard an all-cargo aircraft. to training under § 1544.233 and 235, not limited to successful completion of (ii) Sections 1544.205(a), (b), (d), and will have successfully completed the training and Security Threat (f), Acceptance and screening of cargo. training outlined in its security program Assessments by relevant personnel, if 20. Revise § 1544.105 to read as before performing security-related applicable. follows: duties. (b) Amendment requested by an § 1544.105 Approval and amendments to (2) Standard security program. TSA aircraft operator. An aircraft operator the security program. will provide to the aircraft operator may submit a request to TSA to amend (a) Initial approval of security security coordinator the appropriate its security program as follows: program. (1) Application. Unless standard security program, any security (1) The request for an amendment otherwise authorized by TSA, each directives, and amendments to the must be filed in writing, with the aircraft operator required to have a security program and other alternative designated official at least 45 days security program under this part must procedures that apply to the aircraft before the date the aircraft operator apply for a security program in a form operator. The aircraft operator may proposes for the amendment to become and a manner prescribed by TSA at least either accept the standard security effective, unless a shorter period is 90 days before the intended date of program or submit a proposed modified allowed by the designated official. operations. The application must be in security program to the designated (2) Within 30 days after receiving a writing. official for approval. TSA will approve proposed amendment, the designated (i) Each aircraft operator must include the security program under paragraph official, in writing, either approves or in its application the following: (a)(3) of the section or issue a written denies the request to amend.

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(3) An amendment to an aircraft (d) Emergency amendments. If the Subpart C—Operations operator security program may be designated official finds that there is an approved if the designated official emergency requiring immediate action 22. Amend § 1544.201 by adding determines that security and the public with respect to security in air introductory text to read as follows: interest will allow it, and the proposed transportation or in air commerce that § 1544.201 Acceptance and screening of amendment provides the level of makes procedures in this section individuals and accessible property. security required under this part. contrary to the public interest, the This section applies to each aircraft (4) If the proposed amendment is designated official may issue an operator required to comply with this denied, within 30 days after receiving a emergency amendment, without the section under 49 CFR 1544.103. denial, the aircraft operator may petition prior notice and comment procedures in the Assistant Secretary to reconsider the paragraph (c) of this section, effective * * * * * denial. A Petition for Reconsideration without stay on the date the aircraft 23. Revise § 1544.202 to read as must be filed with the designated operator receives notice of it. In such a follows: official. case, the designated official will § 1544.202 Persons and property onboard (5) Upon receipt of a petition for incorporate in the notice a brief all-cargo aircraft. reconsideration, the designated official statement of the reasons and findings for either approves the request to amend or Each aircraft operator operating under the amendment to be adopted. The a full all-cargo program or a large transmits the petition, together with any aircraft operator may file a written pertinent information, to the Assistant aircraft program in an all-cargo Petition for Reconsideration under operation as described in Secretary for reconsideration. The paragraph (c) of this section; however, Assistant Secretary disposes of the § 1544.103(f)(2) must apply the security this does not stay the effective date of measures in its security program for petition within 30 days of receipt by the Emergency Amendment. either directing the designated official to persons who are carried on the aircraft, approve the amendment, or denying the (e) Requirement to report changes in and for their property, to prevent or Petition and affirming the denial. information. Each aircraft operator with deter the carriage of any unauthorized (6) Any aircraft operator may submit an approved security program under persons, and any unauthorized or a group proposal for an amendment that this part must notify TSA, in a form and accessible weapons, explosives, is on behalf of it and other aircraft manner approved by TSA, of any incendiaries, and other destructive operators that co-sign the proposal. changes to the information submitted substances or items. (c) Amendment by TSA. If security during its initial application under 24. Amend § 1544.205 by revising and the public interest require an paragraph (a)(1) of this section. paragraphs (a), (b), and (d) to read as amendment, TSA may amend a security (1) This notification must be follows: program as follows: submitted in writing to the designated § 1544.205 Acceptance and screening of (1) The designated official notifies the official not later than 30 days after the cargo. aircraft operator, in writing, of the date the change occurred. (a) Preventing or deterring the carriage proposed amendment, fixing a period of (2) Changes included in the not less than 30 days within which the of any explosive or incendiary. Each requirement of this paragraph include, aircraft operator operating under a full aircraft operator may submit written but are not limited to, changes in the information, views, and arguments on program, a full all-cargo program, or a holder of a security program’s contact large aircraft program in an all-cargo the amendment. information, owners, business addresses (2) After considering all relevant operation as described in and locations, and form of business § 1544.103(f)(2) must use the material, the designated official notifies entity. the aircraft operator of any amendment procedures, facilities, and equipment adopted or rescinds the notice. If the (f) TSA may withdraw its approval of described in its security program to amendment is adopted, it becomes an aircraft operator’s security program prevent or deter the carriage of any effective not less than 30 days after the under § 1540.301. unauthorized persons, and any aircraft operator receives the notice of 21. Add new § 1544.107 to subpart B unauthorized explosives, incendiaries, amendment, unless the aircraft operator to read as follows: and other destructive devices, petitions the Assistant Secretary, in substances or items in cargo onboard an § 1544.107 Fractional ownership of large aircraft. writing, to reconsider no later than 15 aircraft. days before the effective date of the (b) Screening and inspection of cargo. amendment. The aircraft operator must (a) This section applies to aircraft Each aircraft operator operating under a send the written Petition for operators operating aircraft under a full program or a full all-cargo program, Reconsideration to the designated large aircraft program under or a large aircraft program in an all- official. A timely Petition for § 1544.101(b) that are under a fractional cargo operation, as described in Reconsideration stays the effective date ownership program under 14 CFR part § 1544.103(f)(2), must ensure that cargo of the amendment. 91, subpart K. For operations where the is screened and inspected for any (3) Upon receipt of a Petition for owner in operational control delegates unauthorized person, and any Reconsideration, the designated official performance of security tasks to the unauthorized explosive, incendiary, and either amends or withdraws the notice program manager, the security program other destructive substance or item as or transmits the Petition, together with is considered to be held jointly by the provided in the aircraft operator’s any pertinent information, to the owner and the program manager, and security program and § 1544.207, and as Assistant Secretary for reconsideration. the owner and the program manager are provided in § 1544.239 for operations The Assistant Secretary disposes of the jointly and individually responsible for under a full program, before loading it Petition within 30 days of receipt by compliance. on its aircraft. either directing the designated official to (b) A fractional program manager that * * * * * withdraw or amend the amendment, or manages multiple aircraft may have one (d) Refusal to transport. Except as by denying the Petition and affirming large aircraft program that applies to all otherwise provided in its program, each the amendment. its operations. aircraft operator operating under a full

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program, a full all-cargo program, or a property, and/or checked baggage, an §§ 1544.201(d) and 1544.202, with large aircraft program in an all-cargo aircraft operator must conduct any respect to accessible weapons, do not operation as described in inspection not conducted by the foreign apply to a LEO aboard a flight for which § 1544.103(f)(2) must refuse to transport country or must not permit non- screening is not required if the any cargo if the shipper does not inspected individuals on the aircraft. requirements of paragraphs (a)(1), (3), consent to a search or inspection of that The aircraft operator’s personnel must and (4) of this section are met. cargo in accordance with the system be trained and authorized to inspect * * * * * prescribed by this part. individuals, accessible property, and 29. Amend § 1544.223 by adding * * * * * checked baggage, as provided in subpart introductory text and a new paragraph 25. Add new § 1544.206 to subpart C E. (i), and revising paragraphs (b), (f), and to read as follows: (3) All locations. Each aircraft (g) to read as follows: operator must ensure the inspection of § 1544.206 Persons and property on board all cargo prior to loading on the aircraft. § 1544.223 Transportation of Federal Air a large aircraft. The cargo must be inspected as Marshals. Each aircraft operator operating under provided in each aircraft operator’s Each aircraft operator under the full a large aircraft program under security program or by TSA, or by the program as described in § 1544.101(a), § 1544.101(b), except for a large aircraft foreign country. Where the foreign full all-cargo program as described in operator in an all-cargo operation as country does not conduct inspection of § 1544.101(h), or the large aircraft described in § 1544.103(f)(2), must cargo, the aircraft operator must conduct program and required to comply with apply the security measures in its the inspection or must not permit non- § 1544.103(f)(1), must comply with security program for any persons and inspected cargo on the aircraft. paragraphs (a) through (h) of this accessible property onboard the aircraft, (c) Full all-cargo aircraft operators section. Each aircraft operator under the including company materials (COMAT), and large aircraft operators. Each large aircraft program as described in to prevent or deter the carriage of any aircraft operator must use the measures § 1544.101(b), other than large aircraft unauthorized persons, and any in its security program and in subpart E operators described in § 1544.103(f)(1), unauthorized or accessible weapons, of this part to inspect individuals and must comply with paragraph (i) of this explosives, incendiaries, and other property. section. 27. Amend § 1544.217 by revising the destructive devices, substances or items. * * * * * 26. Revise § 1544.207 to read as introductory text of paragraphs (a)(2) follows: and (b) to read as follows: (b) Each aircraft operator must carry Federal Air Marshals, in the number § 1544.207 Inspection of individuals and § 1544.217 Law enforcement personnel. and manner specified by TSA. property. (a) * * * * * * * * (a) Applicability of this section. This (2) For operations under a large (f) The requirements of §§ 1544.219(a) section applies to the inspection of aircraft program under § 1544.101(b) or and 1544.241 do not apply for a Federal individuals, accessible property, a full all-cargo program under Air Marshal on duty status. checked baggage, and cargo by each full § 1544.101(h), each aircraft operator (g) Each aircraft operator operating program operator under § 1544.101(a); must— under a security program pursuant to the inspection of individuals, accessible * * * * * §§ 1544.101(a), (b) and (h), must restrict property and cargo by each full all-cargo (b) This paragraph (b) applies to any information concerning the program operator under § 1544.101(h); operations at airports required to hold presence, seating, names, and purpose and the inspection of individuals and security programs under part 1542 of of Federal Air Marshals at any station or accessible property by a large aircraft this chapter. For operations under a on any flight to those persons with an program operator under § 1544.103(f)(1), large aircraft program under operational need to know. as required under this part. § 1544.101(b), or a full all-cargo program * * * * * (b) Full program aircraft operators. under § 1544.101(h), each aircraft Each aircraft operator must ensure that (i) Upon prior notification from TSA, operator must— large aircraft operators must carry passengers and their accessible property * * * * * do not board an aircraft and that Federal Air Marshals, in the number 28. Amend § 1544.219 by adding and manner specified by TSA. checked baggage is not loaded onto an introductory text, and revising the aircraft unless inspection is conducted 30. Amend § 1544.237 by adding introductory text of paragraphs (a) and introductory text and revising paragraph as follows: (b) to read as follows: (1) Locations within the United States. (b) to read as follows: § 1544.219 Carriage of accessible The inspection of passengers, accessible § 1544.237 Flight deck privileges. property, and checked baggage is weapons. conducted by TSA. This section applies to each aircraft This section applies to each aircraft (2) Locations outside the United operator required to comply with this operator required to comply with this States. (i) In non-U.S. locations where section under 49 CFR 1544.103. section under 49 CFR 1544.103: the foreign country conducts inspection (a) Flights for which screening is * * * * * of passengers, accessible property, and conducted. The provisions of (b) This section does not restrict checked baggage, the aircraft operator §§ 1544.201(d) and 1544.202, with access for an FAA air carrier inspector, must ensure that the foreign country or respect to accessible weapons, do not a DOD commercial air carrier evaluator, its designee conducts such inspection. apply to a law enforcement officer (LEO) an authorized representative of the TSA may require aircraft operators to traveling armed aboard a flight for National Transportation Safety Board, or conduct supplemental inspection which screening is required, if the an Agent of the U.S. Secret Service, operations. requirements of this section are met. under 14 CFR parts 121, 125, or 135, or (ii) In non-U.S. locations where the * * * * * a Federal Air Marshal under this part. foreign country does not conduct (b) Flights for which screening is not 31. Add new § 1544.241 to subpart C inspection of passengers, accessible conducted. The provisions of to read as follows:

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§ 1544.241 Voluntary provision of adopt and carry out a program for audit of the aircraft operator’s emergency services. qualified individuals to volunteer, prior compliance with this chapter and its This section applies to each aircraft to departure, to be called upon by a security program in accordance with operator that is required to comply with crew member or flight attendant to this section. this section under 49 CFR 1544.103 and provide emergency services in the event (c) Timing. (1) Initial audit. Except as that is an air carrier. of an in-flight emergency. Prior to approved by TSA, each aircraft operator (a) Qualification under this section. accepting an offer of voluntary must cause the initial audit to be An individual is qualified for purposes emergency services from a qualified conducted within sixty days of the of this section if the individual is individual prior to departure, the approval of the aircraft operator’s qualified under Federal, State, local, or aircraft operator must request and security program under § 1544.105. tribal law, or under the law of a foreign review any credential, document, and (2) Biennial audit. Each aircraft government, has valid standing with the identification offered by the individual operator must cause an audit to be licensing or employing agency that to determine whether he or she meets conducted 24 months after the aircraft issued the credentials, and is a the definition of a qualified individual. operator’s most recent audit conducted scheduled, on-call, paid, or volunteer (1) The credential, document, or to meet the requirements in paragraph employee, as one of the following: identification must identify the service (c)(1) of this section or this paragraph (1) A law enforcement officer who is category and bear the individual’s name, (c)(2). If the aircraft operator completes an employee or authorized by the clear full-face picture, and signature and the audit in the month before or the Federal, state, local, or tribal must not have expired, except as month after it is due, the aircraft government or under the law of a provided in paragraph (c)(3) of this operator is considered to have foreign government, with the primary section. completed the audit in the month it is purpose of the prevention, investigation, (2) If the credential does not bear an due. apprehension, or detention of expiration date, the qualified individual (d) Auditor’s access. Each aircraft individuals suspected or convicted of must also present an official letter operator must provide the auditor government offenses. identifying current employment in the access to all records, equipment, and (2) A firefighter who is an employee, relevant service category. facilities necessary for the auditor to whether paid or a volunteer, of a fire (3) If the credential does not bear a conduct an audit of the aircraft department of any Federal, state, local, full-face image of the individual, the operator’s compliance with this chapter or tribal government who is certified as individual must also present a photo and its security program. a firefighter as a condition of identification issued by a government (e) Audit report. Each aircraft operator employment and whose duty it is to authority. will receive a copy of the audit report extinguish fires, to protect life, and to (4) An individual whose credential from its auditor. protect property. bears an expiration date that has passed (f) Comments on audit report. Within (3) An emergency medical technician on the date of the intended flight is not 30 days of receiving a copy of an audit who is trained and certified to appraise considered a qualified individual for report from the auditor, an aircraft and initiate the administration of purposes of paragraph (c) of this section. operator may submit written comments emergency care for victims of trauma or (d) Law enforcement officers flying on the report to TSA. acute illness. armed and federal air marshals. The 33. Add new § 1544.245 to subpart C (b) Exemption from liability. (1) Under aircraft operator need not apply the to read as follows: 49 U.S.C. 44944(b), an individual shall requirements of paragraph (c) to a law not be liable for damages in any action § 1544.245 Passenger vetting for large enforcement officer traveling armed aircraft operators. brought in a Federal or State court that pursuant to § 1544.219 or to a Federal arises from an act or omission of the Air Marshal on duty status pursuant to (a) Applicability and terms used in individual in providing or attempting to §§ 1544.219 and 1544.223. this section. (1) Applicability. (i) Except provide assistance in the case of an in- (e) Discretion of the aircraft operator. as provided in paragraph (a)(1)(ii) of this flight emergency in an aircraft of an air The aircraft operator has full discretion section, this section applies to aircraft carrier if the individual meets the to request, accept, or reject a qualified operators operating under a large qualifications described in paragraph (a) individual’s offer of assistance. Nothing aircraft program described in of this section. in this section prohibits or requires any § 1544.101(b). (2) Under 49 U.S.C. 44944(c), passenger’s assistance in an emergency. (ii) This section does not apply to any exemption described in paragraph (b)(1) (f) Confidentiality. The aircraft flight operated by a large aircraft of this section shall not apply in any operator must not provide any operator for which the large aircraft case in which an individual provides, or individual, other than the appropriate operator has submitted advance attempts to provide, assistance in a aircraft operator personnel who need to passenger information to U.S. Custom manner that constitutes gross negligence know, the identity or any other personal and Border Protection (CBP) under 19 or willful misconduct. or professional information of any CFR 122.49a, 122.75a, or 122.22 and has (3) The exemption described in qualified individual offering to provide complied with CBP’s instructions. If paragraph (b)(1) of this section applies emergency services. CBP grants the pilot landing rights whether or not the individual has 32. Add new § 1544.243 to subpart C under 19 CFR 122.49a, 122.75a, or volunteered prior to departure under the to read as follows: 122.22, the large aircraft operator may program described in paragraph (c) of permit all passengers for whom the this section. § 1544.243 Third party audit. aircraft operator submitted advance (4) For purposes of this paragraph (b), (a) Applicability. This section applies passenger information to CBP to board the qualified individual need not have to aircraft operators operating under a the aircraft. If CBP identifies a passenger his or her credentials present at the time large aircraft program under as a selectee under 19 CFR 122.49a, of providing or attempting to provide § 1544.101(b). 122.75a, or 122.22, the large aircraft assistance. (b) General. Each aircraft operator operator may permit the passenger to (c) Program for pre-departure must contract with an auditor approved board the aircraft and the large aircraft volunteers. Each aircraft operator must under 49 CFR part 1522 to conduct an operator must comply with the

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procedures in its security program provider if there are revisions to the informs the aircraft operator of the pertaining to passengers that are passenger’s full name, date of birth, results of watch-list matching for that identified as selectees. If CBP identifies gender, passport information, or Redress passenger in response to the aircraft a passenger as ‘‘not cleared’’ under 19 Number. operator’s most recent submission of CFR 122.49a, 122.75a, or 122.22, the (2) Master passenger list. An aircraft passenger information for that large aircraft operator must not permit operator does not need to transmit passenger. The aircraft operator must the passenger to board the aircraft. passenger information required under comply with instructions transmitted by (2) Terms used in this section. In paragraph (b)(1) of this section or await the watch-list service provider under addition to the terms in §§ 1500.3 and boarding instructions required under this paragraph (c), unless explicitly 1540.5 of this chapter, the following paragraph (c) of this section for instructed otherwise by TSA. terms apply in this section: individuals who satisfy all of the (1) Cleared to board an aircraft. If the Continuous vetting means the process following: aircraft operator’s watch-list service in which an individual’s full name, date (i) Prior to obtaining and transmitting provider instructs the aircraft operator of birth, gender, passport information, passenger information under paragraphs that a passenger is cleared, the aircraft and Redress Number (if available) are (b)(2)(ii) and (iii) of this section, the operator may permit the passenger to continuously matched against the most aircraft operator must inform the board an aircraft. current watch-list in a manner individual that inclusion in the master (2) Passenger identified as a selectee. prescribed by TSA. passenger list is voluntary, provide the If the aircraft operator’s watch-list Passenger information means: individual with notice of the purpose service provider instructs the aircraft (1) Full name of the passenger. and procedures related to a master operator that a passenger is a selectee, (2) Date of birth of the passenger, if passenger list, and obtain from the the aircraft operator may permit the available. individual a signed, written statement passenger to board an aircraft. The (3) Gender of the passenger, if affirmatively requesting that he or she aircraft operator must comply with the available. be placed on the master passenger list. procedures in its security program (4) Passport information, if available. (ii) The aircraft operator has obtained pertaining to passengers that are (5) Redress Number of the passenger, the full name, gender, date of birth, and identified as selectees. if available. Redress Number (if available) of the (3) Denial to board an aircraft. If the Passport information means the individuals. aircraft operator’s watch-list service following information from an (iii) The aircraft operator has provider instructs the aircraft operator individual’s passport: transmitted the full name, gender, date that the passenger must be inhibited (1) Passport number. of birth, passport information, and from boarding an aircraft, the aircraft (2) Country of issuance. Redress Number (if available) of the operator must not permit the passenger (3) Expiration date. to board an aircraft. If the aircraft (4) Gender. individual and any updated passenger (5) Full name. information to a watch-list service operator’s watch-list service provider Redress Number means the number provider and identified the individual instructs the aircraft operator to contact assigned by DHS to an individual as an individual that should be subject TSA for further resolution of the watch- processed through the redress to continuous vetting. list matching results, the aircraft procedures described in 49 CFR part (iv) The aircraft operator ensures that operator must contact TSA in 1560, subpart C. the watch-list service provider has accordance with procedures set forth in Watch-list refers to the No Fly List responsibility for conducting its security program. and Selectee List components of the continuous vetting of the individual at (4) Override by an aircraft operator. Terrorist Screening Database maintained the time that the individual boards a No aircraft operator may override an by the Terrorist Screening Center. flight operated by the aircraft operator. instruction to inhibit a passenger from Watch-list service provider is an entity (v) The watch-list service provider boarding an aircraft, unless explicitly that TSA has approved under 49 CFR that conducts the continuous vetting of authorized by TSA to do so. part 1544, subpart F, to conduct watch- the individual has informed the aircraft (5) Updated passenger information list matching for large aircraft operators operator that the individual is cleared to from an aircraft operator. When an required under this section. board an aircraft after the aircraft aircraft operator sends updated (b) Request for and transmission of operators transmits the initial passenger passenger information to its watch-list passenger information. (1) Passenger information to the watch-list service service provider under paragraph information list. Except as provided in provider. If the aircraft operator (b)(1)(iv) of this section for a passenger paragraph (b)(2) of this section, each transmits updated passenger for whom the watch-list service aircraft operator must: information, the aircraft operator must provider has already transmitted an (i) Request and obtain the full name wait until the watch-list service instruction, all previous instructions of every passenger on each flight provider informs the aircraft operator concerning that passenger are voided. operated by the aircraft operator; that the individual is cleared to board The aircraft operator may not permit the (ii) Request the gender, date of birth, an aircraft. passenger to board an aircraft until it and Redress Number for every passenger (vi) The watch-list service provider receives an updated instruction on each flight operated by the aircraft that conducts the continuous vetting of concerning the passenger from its operator; the individual has not informed the watch-list service provider. Upon (iii) Transmit the full name and other aircraft operator that the individual receiving an updated instruction from available passenger information, and must be inhibited from boarding the its watch-list service provider, the any available passport information, to aircraft, unless explicitly authorized by aircraft operator must comply with the an entity approved to conduct watch-list TSA to permit boarding of the updated instruction and disregard all matching under 49 CFR part 1544, individual. previous instruction. subpart F (‘‘Watch-list service (c) Watch-list matching results. An (d) Use of the watch-list matching provider’’); and operator must not permit a passenger to results. An aircraft operator must not (iv) Transmit updated passenger board an aircraft until the aircraft use any watch-list matching results information to its watch-list service operator’s watch-list service provider provided by the watch-list service

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provider or TSA for purposes other than Redress Number means the number contains personally identifiable those provided in paragraph (c) of this assigned by DHS to an individual information collected under this part section and security purposes. processed through the redress and § 1544.245 or is used to conduct 34. Add new subparts F and G to part procedures described in 49 CFR part watch-list matching. The system 1544 to read as follows: 1560, subpart C. security plan must comply with Watch-list refers to the No Fly List Subpart F—Watch-List Service Providers standards established by TSA. and Selectee List components of the (4) An attestation report of the Sec. Terrorist Screening Database maintained attestation conducted under 1544.501 Scope and terms used in this by the Terrorist Screening Center. § 1544.513(c)(1)(i). subpart. Watch-list service provider is an entity (5) A security program that meets 1544.503 Qualification standards for approval. that TSA has approved under this requirements in § 1544.515. subpart to conduct watch-list matching 1544.505 Application. § 1544.507 TSA review and approval. 1544.507 TSA review and approval. for large aircraft operators under 1544.509 Reconsideration of disapproval of § 1544.507. (a) Review. Upon receiving an an application. application, TSA will review the 1544.511 Withdrawal of approval. § 1544.503 Qualification standards for application including the system 1544.513 Responsibilities of watch-list approval. security plan as described in service providers. To be considered for approval to § 1544.505(b)(3). TSA may conduct a 1544.515 Security program. conduct watch-list matching under site visit as part of its review process. At § 1544.245, the applicant must satisfy its discretion, TSA may approve or Subpart F—Watch-List Service all of the following requirements. disapprove the application. Providers (a) The applicant must demonstrate (b) Approval. If an application is the capability to receive passenger § 1544.501 Scope and terms used in this approved, TSA will send the applicant subpart. information from large aircraft operators a written notice of approval. Once described in § 1544.101(b). approved, the watch-list service (a) This subpart applies to entities (b) The applicant must demonstrate provider may perform passenger vetting that conduct watch-list matching for the capability to conduct automated in accordance with this subpart after large aircraft operators under §1544.245. watch-list matching and continuous TSA receives an attestation report for an (b) In addition to the terms in §§ vetting of individuals in a system that attestation conducted under 1500.3 and 1540.5 of this chapter, the satisfies standards set forth by TSA for § 1544.513(c)(1)(i) in which the following terms apply in this part: the protection of personally identifiable independent public accounting (IPA) Applicant means an entity that seeks information and the security of the firm opines that the watch-list service approval from TSA to conduct watch- system. provider’s system is in compliance with list matching for large aircraft operators (c) The applicant must demonstrate its system security plan and TSA under § 1544.245. the capability to transmit watch-list standards. Covered personnel means: matching results to the large aircraft (c) Disapproval. TSA will send a (1) Employees who have access to operator. written notice of disapproval to an passenger information, the watch-list, or (d) The applicant must successfully applicant whose application is watch-list matching results; and undergo a suitability assessment disapproved. (2) Officers, principals, and program conducted by TSA including a managers responsible for access of determination that it does not pose or is § 1544.509 Reconsideration of disapproval of an application. passenger information, the watch-list, or suspected of posing a threat to watch-list matching results. transportation or national security. (a) Petition for reconsideration. If an Large aircraft operator means an (e) Every covered personnel of the application is disapproved, the aircraft operator described in applicant must successfully undergo a applicant may seek reconsideration of §§ 1544.101(b) or 1544.107. security threat assessment under 49 CFR the decision by submitting a written Passenger information means— part 1544, subpart G and have a valid petition for reconsideration to the (1) Full name of the passenger. Determination of No Security Threat. Assistant Secretary or designee within (2) Date of birth of the passenger, if (f) The applicant is incorporated 30 days of receiving the notice of available. within the United States. The disapproval. (3) Gender of the passenger, if applicant’s operations and systems for (b) Review of petition. Upon review of available. conducting watch-list matching under the petition for reconsideration, the (4) Passport information, if available. this subpart must be located in the Assistant Secretary or designee disposes (4) Redress Number of the passenger, United States. of the petition by either affirming the if available. disapproval of the application or Passport information means the § 1544.505 Application. approving the application. The following information from an (a) Each applicant must submit an Assistant Secretary or designee may individual’s passport: application in a form and manner request additional information from the (1) Passport number. prescribed by TSA. applicant prior to rendering a decision. (2) Country of issuance. (b) An application must include the (3) Expiration date. following information: § 1544.511 Withdrawal of approval. (4) Gender. (1) The applicant’s full name, (a) Basis for withdrawal of approval. (5) Full name. business address, business phone TSA may withdraw approval to conduct Continuous vetting means the process number, and business email address. watch-list matching if a watch-list in which an individual’s full name, date (2) A statement and other service provider ceases to meet the of birth, gender, passport information, documentary evidence of how the qualification standards for approval, and Redress Number (if available) is applicant meets the qualification fails to fulfill its responsibilities, or in continuously matched against the most standards set forth on § 1544.503. the interest of security or the public. current watch-list in a manner (3) A system security plan for its (b) Notice of withdrawal. (1) Except as prescribed by TSA. information technology system that provided in paragraph (c) of this

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section, TSA will provide a written aircraft program, as described in TSA or a large aircraft operator indicates notice of proposed withdrawal of § 1544.101(b), that is approved by TSA as proprietary information and provides approval to the watch-list service under § 1544.105. Each watch-list to the watch-list service provider. provider. service provider must confirm with TSA (g) Privacy policy. Each watch-list (2) The notice of withdrawal of that an aircraft operator holds an service provider must adopt and make approval will include the basis of the approved large aircraft program prior to public a privacy policy. withdrawal of approval. commencement of watch-list matching (h) TSA inspection authority. (1) Each (3) Unless the watch-list service for that aircraft operator. watch-list service provider must allow provider files a written petition for (d) Attestation of compliance. (1) TSA, at any time or place, to make any reconsideration under paragraph (d) of Each watch-list service provider must inspections or tests, including copying this section, the notice of proposed contract with a qualified IPA firm to records, to determine compliance of a withdrawal of approval will become a conduct an attestation of the watch-list watch-list service provider or a large final notice of withdrawal of approval service provider’s compliance with its aircraft operator with— 31 days after the watch-list service system security plan and TSA standards (i) This subpart, 49 CFR 1544.245, and provider’s receipt of the notice of for systems that are used to conduct part 1520 of this chapter; and proposed withdrawal of approval. watch-list matching as follows: (ii) 49 U.S.C. Subtitle VII, as (c) Emergency notice of withdrawal of (i) An attestation must be conducted amended. approval. (1) If TSA finds that there is prior to commencement of watch-list (2) At the request of TSA, each watch- an emergency requiring immediate matching operations; list service provider must provide action with respect to a watch-list (ii) An attestation must be conducted evidence of compliance with this service provider’s ability to conduct 6 months after commencement of subpart. watch-list matching, TSA may withdraw watch-list matching operations; and (i) Use of watch-list. Watch-list approval of that watch-list service (iii) An attestation must be conducted service providers may not use the provider without prior notice. 12 months after the watch-list service passenger information transmitted (2) TSA will incorporate in the provider’s most recent attestation under § 1544.245 and obtained under emergency notice of withdrawal of conducted to meet the requirements in this subpart, the watch-list, or the approval a brief statement of the reasons paragraph (c)(1)(ii) of this section or this watch-list matching results for any and findings for the withdrawal of paragraph (c)(1)(iii). If the watch-list purpose other than to conduct watch- approval. service provider completes the list matching under this part in (3) The emergency notice of attestation in the month before or the accordance with their security withdrawal of approval is effective upon month after it is due, the watch-list programs. the watch-list service provider’s receipt service provider is considered to have of the notice. The watch-list service completed the attestation in the month § 1544.515 Security program. provider may file a written petition for it is due. (a) Each watch-list service provider reconsideration under paragraph (d) of (2) The IPA firm conducts the must adopt and carry out a security this section; however, this does not stay attestation in accordance with the program that includes all of the the effective date of the emergency American Institute of Certified Public following requirements: notice of withdrawal of approval. Accountants’ (AICPA) Statement for (1) Procedures for conducting watch- (d) Petition for reconsideration. A Standards on Attestation Engagements list matching in a manner prescribed by watch-list service provider may seek 10 and TSA standards; TSA. reconsideration of the withdrawal of (3) The IPA firm must prepare and (2) Procedures for sending approval of approval by submitting a submit a report, in a form and manner instructions back to aircraft operators written petition for reconsideration to prescribed by TSA, for each audit based on the results of the watch-list the Assistant Secretary or designee conducted under paragraph (c)(1) of this matching. within 30 days of receiving the notice of section. (3) Procedures for contacting TSA for withdrawal of approval. (4) An IPA firm is qualified for resolution of passengers that are (e) Review of petition. Upon review of purposes of paragraph (c)(1) of this potential matches to the watch-list. the petition for reconsideration, the section if: (4) Procedures for identifying Assistant Secretary or designee disposes (i) The selection of the IPA firm was passengers about whom a large aircraft of the petition by either affirming or in accordance with the relevant AICPA operator must contact TSA for withdrawing the withdrawal of guidance regarding independence; and resolution of a potential match to the approval. The Assistant Secretary or (ii) The IPA firm demonstrates the watch-list. designee may request additional capability to assess information system (5) Procedures for complying with its information from the watch-list service security and process controls. TSA system security plan. provider prior to rendering a decision. reserves the right to reject the IPA firm’s (6) Procedures for ensuring the attestation if, in TSA’s judgment, the physical security of the system used to § 1544.513 Responsibilities of watch-list IPA firm is not sufficiently qualified to conduct watch-list matching and the service providers. perform these services. space and furniture used to receive (a) Security program. Each watch-list (e) Sensitive Security Information. passenger information from aircraft service provider must adopt and carry Each watch-list service provider must operators, to conduct watch-list out a security program that meets the comply with the requirements in 49 matching, to transmit watch-list results requirements of § 1544.515. CFR part 1520 regarding the handling to aircraft operators, and to store (b) System security plan. Each watch- and protection of Sensitive Security documents related to watch-list list provider must comply with its Information. matching. approved system security plan. (f) Non-disclosure of proprietary (7) Procedures for training covered (c) Authorized watch-list matching. information. Unless explicitly personnel on the requirements of this Each watch-list service provider may authorized by TSA, each watch-list subpart. only conduct watch-list matching for service provider may not further release (8) Procedures for conducting aircraft operators that hold a large or disseminate any information that continuous vetting of individuals.

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(9) Procedures for providing (c) Individuals who have undergone a Departure Record, Form I–94. This personnel that is available to TSA 24 CHRC under § 1544.229 or 1544.230. information is voluntary and may hours a day, 7 days a week. Flight crew members or employees or expedite the adjudication process for (10) Procedures to identify, handle, contract employees authorized to individuals who are not U.S. citizens. and protect Sensitive Security perform screening functions who have (15) Whether the applicant has Information. undergone a fingerprint-based criminal previously completed a TSA threat (11) Procedures to maintain history records check under §§ 1544.229 assessment, and if so the date and confidentiality of proprietary or 1544.230 within five years of the program for which it was completed. information. effective date of this rule are not This information is voluntary and may (b) A watch-list service provider or required to undergo a security threat expedite the adjudication process for TSA may amend an approved security assessment under this part until 5 years applicants who have completed a TSA program using the procedures in after the date of their notification of the security threat assessment. § 1544.105. results of their criminal history records (16) Whether the applicant currently (c) TSA may withdraw approval of a check. holds a federal security clearance, and security program using procedures in if so, the date of and agency for which § 1540.301. §§ 1544.603 Enrollment for security threat assessments. the clearance was performed. This Subpart G—Security Threat Assessments (a) Except for paragraphs (a)(4) and information is voluntary and may for Large Aircraft Flight Crew, Applicants expedite the adjudication process for To Become TSA-Approved Auditors and (a)(12)–(16) of this section, an individual who is required to undergo a applicants who have completed a Watch-List Service Providers Covered federal security threat assessment. Personnel security threat assessment under this subpart must provide the following (b) The individual must certify and Sec. date receipt of the following statement: 1544.601 Scope and expiration. information to TSA in a manner and 1544.603 Enrollment for security threat time prescribed by TSA: Privacy Act Statement: Authority: 49 assessments. (1) Legal name, including first, U.S.C. 114, 40113. Purpose: This information 1544.605 Content of security threat middle, and last; any applicable suffix; will be used to verify your identity and to assessment. and any other name used previously. conduct a security threat assessment to 1544.607 Criminal history records check (2) Current mailing address and evaluate your suitability for a position for (CHRC). residential address if it differs from the which this security threat assessment is 1544.609 Other analyses. mailing address; and the previous required. Furnishing this information, 1544.611 Final disposition. residential address. including your SSN, is voluntary; however, failure to provide it will delay and may 1544.613 Withdrawal of Determination of (3) Date of birth. No Security Threat. prevent the completion of your security 1544.615 Appeals. (4) Social security number. Providing threat assessment. Routine Uses: Includes 1544.617 Fees. the social security number is voluntary; disclosure to the FBI to retrieve your criminal 1544.619 Notice to employers. however, failure to provide it will delay history record; to appropriate governmental and may prevent completion of the agencies for licensing, law enforcement, or Subpart G—Security Threat threat assessment. security purposes, or in the interests of Assessments for Large Aircraft Flight (5) Gender. national security; and to foreign and Crew, Applicants To Become TSA- (6) Height, weight, hair and eye color. international governmental authorities in Approved Auditors and Watch-List (7) City, state, and country of birth. accordance with law and international Service Providers Covered Personnel (8) Immigration status and date of agreement. For further information, see TSA naturalization if the individual is a 002 System of Records Notice. § 1544.601 Scope and expiration. naturalized citizen of the United States. (c) The individual must provide a (a) Scope. This subpart applies to the (9) Alien registration number, if statement, signature, and date of following individuals who must applicable. signature that he or she— undergo a security threat assessment: (10) The name, telephone number, (1) Was not convicted, or found not (1) Flight crew member for aircraft and address of the individual’s current guilty by reason of insanity, of a operators required to hold a large employer(s). If the individual’s current disqualifying criminal offense identified aircraft security program under employer is the U.S. military service, in § 1544.229(d) in any jurisdiction § 1544.101(b); include the branch of the service. during the 10 years before the date of (2) Individuals authorized to perform (11) Fingerprints in a manner the individual’s application for a screening functions under prescribed by TSA. security threat assessment under this § 1544.103(f)(1); (12) Passport number, city of subpart. (3) Applicant to become a TSA- issuance, date of issuance, and date of approved auditor under § 1522.203; and expiration. This information is (2) Is not wanted, or under (4) Watch-list service provider voluntary and may expedite the indictment, in a civilian or military covered personnel under § 1544.503. adjudication process for individuals jurisdiction, for a disqualifying criminal (b) Expiration. A Determination of No who are U.S. citizens born abroad. offense identified in § 1544.229(d); Security Threat issued under (13) Department of State Consular (3) Has, or has not, served in the § 1544.611(a) is valid for five years from Report of Birth Abroad. This military, and if so, the branch in which the date that the individual receives the information is voluntary and may he or she served, the date of discharge, determination unless TSA issues a expedite the adjudication process for and the type of discharge; and withdrawal of Determination of No individuals who are U.S. citizens born (4) Has been informed that Federal Security Threat under § 1544.613 that abroad. regulations under 49 CFR 1544.607 results in a Final Determination of (14) If the individual is not a national impose a continuing obligation on the Security Threat Assessment. An or citizen of the United States, the alien individual to disclose to TSA if he or individual may renew a Determination registration number and/or the number she is convicted, or found not guilty by of No Security Threat using the assigned to the applicant on the U.S. reason of insanity of a disqualifying procedures set forth in this subpart. Customs and Border Protection Arrival- crime.

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(d) Each individual must complete uses fingerprints and may use other individual a copy of the FBI record if he and sign the application prior to identifying information. or she requests it. submitting his or her fingerprints. (b) Submission of fingerprints to FBI/ (2) The individual may contact the (e) The individual must certify and CJIS. In order to conduct a fingerprint- local jurisdiction responsible for the date receipt of the following statement, based criminal history records check, information and the FBI to complete or immediately before the signature line: TSA transmits the fingerprints to the correct the information contained in his The information I have provided on this FBI/CJIS in accordance with the FBI/ or her record, subject to the following application is true, complete, and correct, to CJIS fingerprint submission standards, conditions— the best of my knowledge and belief, and is receives the results from the FBI/CJIS, (i) Within 30 days after being advised provided in good faith. I understand that a and adjudicates the results of the check that the criminal record received from knowing and willful false statement, or an in accordance with this section. the FBI discloses a disqualifying omission of a material fact on this (c) Adjudication of results. (1) TSA criminal offense, the individual must application, can be punished by fine or determines that an individual does not notify TSA of his or her intent to correct imprisonment or both (see section 1001 of pose a security threat warranting denial any information he or she believes to be Title 18 United States Code), and may be of approval based on a disqualifying inaccurate. grounds for denial of approval for the criminal offense if the individual does position or privilege for which this security (ii) If no notification, as described in threat assessment is required. not have a disqualifying criminal paragraph (f)(3)(1) of this section, is offense described in § 1544.229(d). received within 30 days, TSA will make (f) A flight crew member for a large (2) An applicant who is wanted, or a final determination to deny the aircraft, an individual authorized to under indictment in any civilian or individual the position or privilege. perform screening functions, or a watch- military jurisdiction for a felony listed (g) Continuing obligations to disclose. list service provider covered personnel in this section, is disqualified until the An individual who received a must certify the following statement in want or warrant is released or the Determination of No Security Threat writing: indictment is dismissed. under this subpart must disclose to TSA I acknowledge that if the Transportation (d) Determination of arrest status. or to another entity identified by TSA Security Administration determines that I When a CHRC on an individual within 24 hours if he or she is convicted pose a security threat, my employer may be described in this subpart discloses an of any disqualifying criminal offense notified. arrest for any disqualifying criminal that occurs while he or she is has a (g) If an Enrollment Provider enrolls offense listed in § 1544.229(d) without Determination of No Security Threat an individual, the Enrollment Provider indicating a disposition, the individual that has not expired. must: must provide documentation § 1544.609 Other analyses. (1) Verify the identity of the demonstrating that the arrest did not individual through two forms of result in a disqualifying offense before To conduct other analyses, TSA identification prior to fingerprinting, the individual may assume a position or completes the following procedures: and ensure that the printed name on the perform a function for which a criminal (a) Reviews the individual fingerprint application is legible. At history records check under this information required in 49 CFR least one of the two forms of Subpart is required. If the disposition 1544.603. identification must have been issued by did not result in a conviction or in a (b) TSA may search domestic and a government authority, and at least one finding of not guilty by reason of international Government databases to must include a photo. insanity of one of the offenses listed in determine if an individual meets the (2) Advise the individual that a copy § 1544.229(d), the individual is not requirements of 49 CFR 1572.107 or to of the criminal record received from the disqualified under this section. confirm an individual’s identity. TSA FBI will be provided to the individual, (e) Limits on dissemination of results. may determine that an applicant poses if requested by the individual in Criminal record information provided a security threat based on a search of the writing; by the FBI may be used only to carry out following databases: (3) Identify a point of contact if the this section and § 1544.229. No person (1) Interpol and other international individual has questions about the may disseminate the results of a CHRC databases, as appropriate. results of the CHRC; and to anyone other than: (2) Terrorist watch-lists and related (4) Collect, control, and process one (1) The individual to whom the record databases. set of legible and classifiable pertains, or that individual’s authorized (3) Any other databases relevant to fingerprints under direct observation by representative. determining whether an applicant (2) Entities who are determining the enrollment provider or a law poses, or is suspected of posing, a whether to grant the individual a enforcement officer. security threat, or that confirm an position or function for which the (5) Submit the biographic or biometric applicant’s identity. criminal history records check in this data and the application to TSA in the subpart is required. § 1544.611 Final disposition. manner specified by TSA. (3) Others designated by TSA. Following completion of the § 1544.605 Content of the security threat (f) Correction of FBI records and procedures described in §§ 1544.607 assessment. notification of disqualification. (1) and 1544.609, the following procedures The security threat assessment TSA Before making a final decision to deny apply, as appropriate: conducts under this subpart includes a a position or privilege to an individual (a) TSA serves a Determination of No criminal history records check, other required to undergo a criminal history Security Threat to the individual if TSA analyses, and a final disposition. records check prescribed by this section, determines that an individual meets the TSA will serve an Initial Determination security threat assessment standards § 1544.607 Criminal history records check of Threat Assessment and advise him or described in §§ 1544.607 and 1544.609. (CHRC). her that the FBI criminal record (b) TSA serves an Initial (a) Fingerprints and other information discloses information that would Determination of Threat Assessment on used. In conducting criminal history disqualify him or her from the position the individual if TSA determines that record checks under this subpart, TSA or privilege and will provide the the individual does not meet the

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security threat assessment standards (4) A statement that if the individual Individual personal checks are not described in §§ 1544.607 and 1544.609. chooses not to appeal TSA’s Initial acceptable. The Initial Determination of Threat Determination within 30 days after Assessment includes— receipt of the withdrawal of the § 1544.619 Notice to employers. (1) A statement that TSA has Determination of No Security Threat, or (a) If the individual is a large aircraft determined that the individual poses or does not request an extension of time flight crew member, an individual is suspected of posing a security threat within 30 days after receipt of the authorized to perform screening warranting disapproval of the withdrawal of the Determination of No functions, or a watch-list service application to assume a position or Security Threat in order to file an provider covered personnel, TSA will perform a function for which a security appeal, the withdrawal of the notify the individual’s employer that it threat assessment under this subpart is Determination of No Security Threat has served a Determination of No required; becomes a Final Determination of Security Threat, a Final Determination (2) The basis for the determination; Threat Assessment. of Threat Assessment, or a Withdrawal (3) Information about how the (5) TSA serves a Final Determination of Final Determination of Threat individual may appeal the of Threat Assessment on the individual, Assessment, as applicable, to the determination, as described in if the appeal results in a finding that the individual. § 1544.615; and individual does not pose a threat to (b) Each employer must retain a copy (4) A statement that if the individual security. of the notification described in chooses not to appeal TSA’s paragraph (a) of this section for five determination within 30 days after § 1544.615 Appeals. years. receipt of the Initial Determination, or If the individual appeals the Initial does not request an extension of time Determination of Threat Assessment or PART 1550—AIRCRAFT SECURITY within 30 days after receipt of the Initial a withdrawal of the Determination of No UNDER GENERAL OPERATING AND Determination in order to file an appeal, Security Threat, the procedures in 49 FLIGHT RULES the Initial Determination becomes a CFR part 1515 apply. 35. The authority citation for part Final Determination of Threat § 1544.617 Fees. 1550 continues to read as follows: Assessment. (5) TSA serves a Withdrawal of the (a) Individuals required to undergo a Authority: 49 U.S.C. 114, 5103, 40113, Initial Determination of Threat security threat assessment must pay the 44901–44907, 44913–44914, 44916–44918, 44935–44936, 44942, 46105. Assessment or a Withdrawal of Final Security Threat Assessment fee of Determination of Threat Assessment on $56.75 and the cost for the FBI to 36. Amend § 1550.5 by revising the individual, if the appeal results in process fingerprint identification paragraph (a), and removing and a finding that the individual does not records under Public Law 101–515. reserving paragraph (d) to read as pose a threat to security. (b) The Security Threat Assessment follows: fee described in paragraph (a) of this § 1544.613 Withdrawal of Determination of section may be adjusted annually on or § 1550.5 Operations using a sterile area. No Security Threat. after October 1, 2007, by publication of (a) Applicability of this section. This (a) TSA may withdraw a an inflation adjustment. A final rule in section applies to all aircraft operations Determination of No Security Threat the Federal Register will announce the in which passengers, crewmembers, or issued under § 1544.611(a) at any time inflation adjustment. The adjustment other individuals are enplaned from or it determines that a flight crew member, shall be a composite of the Federal deplaned into a sterile area, except for an individual authorized to perform civilian pay raise assumption and non- aircraft operators that have a security screening functions, a TSA-approved pay inflation factor for that fiscal year program accepted or approved under auditor, or a watch-list service provider issued by the Office of Management and part 1544 or 1546 of this chapter. poses or is suspected of posing a Budget for agency use in implementing * * * * * security threat warranting withdrawal of OMB Circular A–76, weighted by the (d) [Reserved] the Determination of No Security pay and non-pay proportions of total * * * * * Threat. funding for that fiscal year. If Congress 37. Amend § 1550.7 by revising (b) TSA serves withdrawal of the enacts a different Federal civilian pay paragraph (a) to read as follows: Determination of No Security Threat on raise percentage than the percentage the individual if TSA determines that issued by OMB for Circular A–76, the § 1550.7 Operations in aircraft over 12,500 the individual does not meet the Department of Homeland Security may pounds. security threat assessment standards adjust the fees to reflect the enacted (a) Applicability of this section. This described in §§ 1544.607 and 1544.609. level. section applies to each aircraft operation The withdrawal of the Determination of (c) If the FBI amends its fee to process conducted in an aircraft with a No Security Threat includes— fingerprint identification records under maximum certificated takeoff weight of (1) A statement that TSA has Public Law 101–515, TSA or its agent over 12,500 pounds except for those determined that the individual poses or will collect the amended fee. operations specified in § 1550.5 and is suspected of posing a security threat (d) When an individual submits the those operations conducted under a warranting disapproval of the enrollment information, as required security program under part 1544 or application to assume a position or under 1544.603, to obtain or renew a 1546 of this chapter. perform a function for which a security security threat assessment, the fee must * * * * * threat assessment under this subpart is be remitted to TSA or its approved agent required; in a form and manner approved by TSA. Issued in Arlington, Virginia, on October 2, (2) The basis for the determination; (e) TSA will not issue any refunds of 2008. (3) Information about how the fees required under this section. Kip Hawley, individual may appeal the (f) Information about payment options Assistant Secretary. determination, as described in is available though the designated TSA [FR Doc. E8–23685 Filed 10–29–08; 8:45 am] § 1544.615; and headquarters point of contact. BILLING CODE 4910–52–P

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Reader Aids Federal Register Vol. 73, No. 211 Thursday, October 30, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR Presidential Executive orders and proclamations 741–6000 Determination No. Proclamations: The United States Government Manual 741–6000 2009-4 of October 8294...... 57223 15, 2008 ...... 62849 Other Services 8295...... 57233 Presidential Electronic and on-line services (voice) 741–6020 8296...... 57475, 60609 Determination No. Privacy Act Compilation 741–6064 8297...... 58429 2009-5 of October Public Laws Update Service (numbers, dates, etc.) 741–6043 8298...... 58431 17, 2008 ...... 63839 TTY for the deaf-and-hard-of-hearing 741–6086 8299...... 58433 Presidential 8300...... 58861 Determination No. 8301...... 58863 ELECTRONIC RESEARCH 2009-6 of October 8302...... 58867 20, 2008 ...... 63841 World Wide Web 8303...... 60603 Full text of the daily Federal Register, CFR and other publications 8304...... 61649 4 CFR is located at: http://www.gpoaccess.gov/nara/index.html 8305...... 61651 22...... 60609 Federal Register information and research tools, including Public 8306...... 61653 Inspection List, indexes, and links to GPO Access are located at: 8307...... 61655 5 CFR http://www.archives.gov/federallregister 8308...... 62435 8309...... 62437 211...... 64179 E-mail 8310...... 64177 295...... 58019 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 315...... 60611 Executive Orders: 316...... 60611 an open e-mail service that provides subscribers with a digital 12962 (amended by form of the Federal Register Table of Contents. The digital form 9701...... 58435 13474) ...... 57229 9901...... 58435 of the Federal Register Table of Contents includes HTML and 13176 (Superseded by PDF links to the full text of each document. 13476) ...... 60605 Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select 13474...... 57229 532...... 58506 Online mailing list archives, FEDREGTOC-L, Join or leave the list EO 12139 (amended 6 CFR (or change settings); then follow the instructions. by EO 13475)...... 60095 PENS (Public Law Electronic Notification Service) is an e-mail EO 12949 (amended 5...... 63057, 63058 service that notifies subscribers of recently enacted laws. by EO 13475)...... 60095 Proposed Rules: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html EO 13475 ...... 60095 Ch. 1 ...... 64280 and select Join or leave the list (or change settings); then follow 13476...... 60605 5 ...... 62214, 63084, 63908 the instructions. Administrative Orders: 7 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot Memorandums: respond to specific inquiries. Memorandum of April 205...... 59479 Reference questions. Send questions and comments about the 17, 2006 301...... 63060 Federal Register system to: [email protected] (superseded by 331...... 61325, 63621 The Federal Register staff cannot interpret specific documents or Memorandum of 984...... 57485 regulations. October 17, 2008)...... 62845 1260...... 60097 Memorandum of Proposed Rules: FEDERAL REGISTER PAGES AND DATE, OCTOBER October 3, 2008 205...... 63584 (supersedes 340...... 60008 56935–57234...... 1 Memorandum of 800...... 62446 57235–57474...... 2 December 20, 810...... 62446 57475–58018...... 3 2005) ...... 58869 946...... 62215 58019–58434...... 6 Memorandum of 966...... 62218 58435–58866...... 7 October 17, 2008 ...... 62845 1496...... 63387 58867–59478...... 8 Notices: 1499...... 63387 59479–60094...... 9 Notice of October 16, 1599...... 63387 60095–60602...... 10 2008 ...... 62433 1703...... 61198 60603–60934...... 14 Notice of October 22, 1780...... 61198 60935–61324...... 15 2008 ...... 63619 2902...... 63298 61325–61648...... 16 Presidential 3570...... 61198 61649–62186...... 17 Determinations: 4280...... 61198 62187–62434...... 20 PD 2008-29 of 4284...... 61198 62435–62846...... 21 September 30, 5002...... 61198 62847–63056...... 22 2008 ...... 58865 63057–63328...... 23 2009-1...... 60935 8 CFR 63329–63620...... 24 2009-2...... 60937 100...... 58023 63621–63838...... 27 Presidential 212...... 58023 63839–64178...... 28 Determination No. 214...... 61332 64179–64514...... 29 2009-3 of October 9, 248...... 61332 64515–64856...... 30 2008 ...... 62847 274a...... 63843

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9 CFR 227...... 63909 734...... 56964, 57495 7...... 64575 71...... 63867 230...... 63909 736...... 56964 10...... 64575 77...... 60099 325...... 63656 738...... 57495 102...... 64575 83...... 63867 327...... 61560 740...... 57495, 60910 134...... 64575 93...... 63867 360...... 63406 742...... 57495, 58033 177...... 64575 567...... 63656 744...... 57495, 58033 121...... 61325, 63621 20 CFR 149...... 60464 701...... 57013 746...... 57495 160...... 60464 740...... 62935 748...... 57495 404...... 64195 161...... 60464 742...... 57013 750...... 57495 416...... 64195 201...... 62439 1202...... 60192 762...... 56964, 57495 501...... 62190 1250...... 60198 770...... 57495 Proposed Rules: 616...... 63068 1773...... 60198 772...... 57495, 60910 1002...... 63631 2...... 63085 774 ...... 56964, 57495, 58033, 13 CFR 21 CFR 10 CFR 60910 101...... 61665 Proposed Rules: 201...... 63886 2...... 63546 121...... 56940, 61336 740...... 57554 203...... 59496 30...... 63546 124...... 57490 772...... 57554 205...... 59496 40...... 63546 125...... 56940, 61336 208...... 63886 50 ...... 57235, 60612, 63546 16 CFR 127...... 56940, 61336 209...... 63886 52...... 63546 134...... 56940, 61336 305...... 63066 210...... 63361 60...... 63546 140...... 63627 1610...... 62187 211...... 63361 63...... 63546 300...... 62858 Proposed Rules: 522...... 58871, 58872 70...... 63546 301...... 62858 3...... 58832 558...... 58873 71...... 63546 302...... 62858 4...... 58832 573...... 64197 72...... 63546, 63621 303...... 62858 1500...... 58063 589...... 63072 73...... 63546 305...... 62858 801...... 58874 76...... 63546 307...... 62858 17 CFR 150...... 63546 Proposed Rules: 308...... 62858 10...... 63359 1...... 63663 431...... 58772 310...... 62858 12...... 63359 Proposed Rules: 314...... 62858 30...... 60625 22 CFR 2...... 62931 315...... 62858 143...... 57512 7...... 62196 35...... 58063 Proposed Rules: 190...... 57235 50...... 62220 40...... 62197 121...... 57014, 61369 229...... 57237 50...... 62196 51 ...... 59540, 59547, 59551 230...... 58300, 60050 125...... 57014, 61369 94...... 64539 72...... 63655 231...... 60050 127...... 57014, 61369 126...... 58041 430...... 62034, 62134 134...... 57014, 61369 232...... 60050 431...... 62034 239...... 58300, 60050 23 CFR 14 CFR 240 ...... 58300, 60050, 61666, 11 CFR 505...... 63362 23...... 63339 61678 Proposed Rules: 25...... 63339, 63867 241...... 60050, 61690 Proposed Rules: 620...... 58908 100...... 62224 33...... 57235, 63339 242 ...... 61690, 61690, 61706 635...... 58908 101...... 62224 35...... 63339 249 ...... 58300, 60050, 61678 636...... 58908 102...... 62224 36...... 62871 Proposed Rules: 710...... 58908 104...... 62224 39 ...... 56956, 56958, 56960, 230...... 61753 110...... 62224 58032, 58436, 59486, 59488, 240...... 61753 24 CFR 113...... 62224 59491, 59493, 60102, 61336, 18 CFR 116...... 62224 61342, 61343, 61346, 62872, 5...... 63834 400...... 62224 63349, 63352, 63354, 63357, 35 ...... 57515, 63886, 64100 25...... 60538 9001...... 62224 63629, 64191 40...... 63770 100...... 63610 9003...... 62224 71 ...... 58871, 60622, 60939, 41...... 58720 990...... 61350 9031...... 62224 60940, 62876, 62878, 62879 131...... 57515 4001...... 58418 9033...... 62224 91...... 62871, 63880 141...... 58720 Proposed Rules: 9035...... 62224 93 ...... 60544, 60574, 64515 154...... 57515 30...... 61754 95...... 63881, 63885 157...... 57515 570...... 61757 12 CFR 250...... 57515 97 ...... 59494, 60623, 60942, 25 CFR 201...... 61657 61348, 64194 281...... 57515 203...... 63329 121...... 63867 284...... 57515 542...... 60492 204...... 57488, 59482 417...... 63630 300...... 57515 543...... 60492 225...... 62851, 63624 Proposed Rules: 301...... 60105 547...... 60508 263...... 58031 39 ...... 58507, 58509, 58901, 341...... 57515 Proposed Rules: 303...... 63338 58903, 58906, 59571, 59573, 344...... 57515 502...... 60490 330...... 61658 60201, 60203, 60206, 60657, 346...... 57515 546...... 60490 370...... 64179 61369, 61372, 61375, 61378, 347...... 57515 26 CFR 509...... 63625 61747, 62447, 62937, 63090, 348...... 57515 721...... 62854 63094, 63096, 64282, 64284, 358...... 63796 1 ...... 58438, 59501, 62199, 740...... 56935, 62856 64566, 64568, 64571 375...... 57515 62203, 62204, 63073, 63372 745...... 60616, 62856 71 ...... 58512, 58513, 61749, 385 ...... 57515, 62881, 64518 54...... 62410 792...... 56936 61750, 61752, 62940, 63407, Proposed Rules: 801...... 60627 951...... 61660 63910, 63912, 64573 40...... 62229, 63105 Proposed Rules: 1291...... 61660 91...... 57270, 63098 806...... 57271 1 ...... 58514, 59575, 61770, Proposed Rules: 93...... 60996 63913 19 CFR 3...... 63656 54...... 60208, 63914 208...... 63656 15 CFR 4...... 60943 222...... 63909 303...... 62880 102...... 64518 27 CFR 225...... 63656 730...... 56964 Proposed Rules: 9...... 64199 226...... 63909 732...... 56964, 57495 4...... 64575 447...... 57239

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478...... 57239 34 CFR 1051...... 59034, 62444 52...... 60172 479...... 57239 5b...... 61354 1054...... 59034 64 ...... 60172, 63078, 64556 555...... 57239 200...... 64436 1060...... 59034 73 ...... 56999, 57268, 57551, Proposed Rules: 674...... 63232 1065...... 59034 57552, 60631, 60974, 60975, 9...... 64286 682...... 63232 1068...... 59034 60976, 63384, 63385, 63652, 19...... 64287 685...... 63232 1074...... 59034 63901, 64558 Proposed Rules: 76...... 61742, 64260 28 CFR 36 CFR 3...... 61773 90...... 60631 58...... 58438 211...... 62443 50...... 58080 Proposed Rules: 570...... 62440 294...... 61456 51...... 58080 Ch. 1...... 59586, 63127, 63128 1228...... 57245 52 ...... 57272, 58084, 58515, 1...... 60997 29 CFR 27...... 57750 Proposed Rules: 58913, 59586, 60996, 61381, 43...... 60997 29...... 64402 7...... 59585 62945, 63408, 63419, 63915, 73 ...... 57280, 60670, 60671, 403...... 57412 223...... 64288 64293, 64576 1910...... 64202 60...... 59956 62237, 62238, 62239, 63129, 2509 ...... 58445, 61731, 61734 37 CFR 61...... 59956 63130, 63131, 63918 90...... 57750 2550 ...... 58447, 58450, 58459 10...... 59513 63 ...... 58352, 59956, 60432, 2578...... 58549 62384, 63420 400...... 57567 Proposed Rules: 80...... 57274 2590...... 62410 201 ...... 58073, 60658, 63111 48 CFR 158 ...... 59382, 60211, 63112 4022...... 61352 385...... 57033 4044...... 61352 161 ...... 59382, 60211, 63112 215...... 62211 252...... 62211 Proposed Rules: 38 CFR 180...... 57040 228...... 60662 Proposed Rules: 3...... 62229 3...... 61736, 64208 5...... 62229 262...... 58388 204...... 62239 17...... 58875, 58877 264...... 58388 207...... 63666 1910...... 62942 59...... 58877 1926...... 59714, 62942 265...... 58388 217...... 62239 Proposed Rules: 2550...... 60657 266...... 58388 235...... 63666 5...... 62004 2590...... 60208 271 ...... 58388, 63917, 64294 252...... 63666 17...... 63914 2700...... 62449 272...... 63917, 64294 470...... 63387 501...... 57580 39 CFR 30 CFR 42 CFR 504...... 59589 111...... 61355 511...... 59590 203...... 58467, 64205 9...... 60410 3020 ...... 59514, 62184, 62886 514...... 60224 210...... 58875 34...... 58047, 62210 515...... 57580 250...... 64541 73...... 61363, 64553 40 CFR 532...... 58515 260...... 58467, 64205 100...... 59528 3...... 61737 552 ...... 57580, 58515, 59589, 938...... 60944 411...... 57541 9...... 59034 59590, 60224 950...... 57538 412...... 57541 49...... 61740 553...... 60224 Proposed Rules: 413...... 56998, 57541 50...... 58042 422...... 57541 1633...... 58886 56...... 63110 52 ...... 56970, 57246, 58475, 1852...... 63420 57...... 63110 441...... 57854 59518, 60955, 60957, 61357, 447...... 58491 2133...... 58886 66...... 63110 62889, 62891, 62893, 62897, 489...... 57541 49 CFR 31 CFR 62902, 63378, 63382, 63639, 64210, 64213, 64548, 64551 43 CFR 1...... 57268, 59538 30...... 62205 55...... 62907 11...... 57259 40...... 62910 32 CFR 59...... 58481 46...... 61292 89...... 57268 60...... 59034 171...... 57001 Proposed Rules: 112...... 59501 62...... 56981 172...... 57001, 57008 403...... 58085 199...... 59504 63...... 64068 173...... 57001 2300...... 60212 212...... 59505 80 ...... 57248, 59034, 61358 175...... 57001 8360...... 57564 706...... 60947, 63375 81...... 56983 176...... 57001 726...... 64206 85...... 59034 44 CFR 178...... 57001 750...... 60948 86...... 59034 179...... 57001 64...... 60158, 64554 751...... 60949 89...... 59034 180...... 57001 65...... 60159, 63076 756...... 60949 90...... 59034 192...... 62148 67...... 60162, 63647 757...... 60950 91...... 59034 232...... 61512 Proposed Rules: 92...... 59034 Proposed Rules: 541...... 60633 288...... 59579 94...... 59034 67 ...... 60216, 63113, 63116, 571...... 58887, 62744 325...... 59582 147...... 63639 64576 1540...... 64018 553...... 57017 1544...... 64018 152...... 64215 45 CFR 1702...... 61771 156...... 64215 1560...... 64018 1703...... 61772 165...... 64215 144...... 62410 Proposed Rules: 180 ...... 56995, 58880, 60151, 146...... 62410 109...... 57281 33 CFR 60963, 60969, 64229, 64246 148...... 62410 571...... 57297 100...... 57242, 60629 197...... 61256 Proposed Rules: 830...... 58520 105 ...... 60951, 63376, 63377, 260...... 64668 144...... 60208 1515...... 64790 64208 261...... 59523, 64668 146...... 60208 1520...... 64790 110...... 57244, 60629 270...... 64668 148...... 60208 1522...... 64790 117 ...... 58473, 60629, 60952, 271...... 63074, 64252 1540...... 64790 46 CFR 60953, 60954, 63632, 63633 272...... 63897, 64252 1542...... 64790 147...... 60629 1027...... 59034 393...... 59530 1544...... 64790 165 ...... 59509, 59511, 60629, 1033...... 59034 1550...... 64790 63633, 63637 1039...... 59034 47 CFR Proposed Rules: 1042...... 59034 0...... 57543 50 CFR 117...... 58070, 62450 1045...... 59034 12...... 59537 17...... 61936, 62816 165...... 62235, 63663 1048...... 59034 25...... 56999 21...... 59448

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22...... 59448 648 ...... 58497, 58498, 58898, 697...... 58059 226...... 62459 216...... 60976 60986, 62445, 63652 Proposed Rules: 402...... 63667 222...... 57010, 60638 660 ...... 58499, 60191, 60642, 17 ...... 57314, 58922, 61007, 622 ...... 61015, 63932, 64295 223 ...... 57010, 60638, 64264 60987 62450, 62592, 63421, 63919, 635...... 63668 224 ...... 60173, 62919, 63901 679 ...... 57011, 57553, 58061, 63926 640...... 64295 229...... 60640 58503, 58504, 58899, 59538, 216...... 60754, 60836 648...... 63934 300...... 62444 60994, 61366, 61367, 62212, 226...... 57583, 58527 679...... 57585, 62241 622 ...... 58058, 58059, 64562 63080, 63081, 63082, 63083 224...... 62459 697...... 58099

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REMINDERS COMMERCE DEPARTMENT 08; published 10-7-08 [FR Oolitic, IN; comments due The items in this list were National Oceanic and E8-23674] by 11-3-08; published 10- editorially compiled as an aid Atmospheric Administration Texas; Reasonable Further 2-08 [FR E8-23158] to Federal Register users. Endangered and Threatened Progress Plan, Motor FEDERAL DEPOSIT Inclusion or exclusion from Species: Vehicle Emissions INSURANCE CORPORATION Budgets, and Revised Agency Information Collection this list has no legal Proposed Critical Habitat for 2002 Base Year Activities; Proposals, significance. the Gulf of Maine Distinct Emissions Inventory; Submissions, and Approvals; Population Segment of comments due by 11-6- comments due by 11-5-08; Atlantic Salmon; 08; published 10-7-08 [FR published 10-6-08 [FR E8- RULES GOING INTO comments due by 11-4- EFFECT OCTOBER 30, E8-23673] 23495] 08; published 9-5-08 [FR Approval and Promulgation of 2008 E8-20603] FEDERAL TRADE Implementation Plans: COMMISSION Endangered and Threatened Georgia; Prevention of Rules of Practice; comments FEDERAL Wildlife and Plants: Significant Deterioration COMMUNICATIONS due by 11-6-08; published Designation of Critical and Nonattainment New 10-7-08 [FR E8-23745] COMMISSION Habitat for Threatened Source Review Rules; Rules and Regulations Extension of Comment GENERAL SERVICES Southern Distinct ADMINISTRATION Implementing the Telephone Population Segment of Period; comments due by General Services Acquisition Consumer Protection Act of North American Green 11-5-08; published 10-6- Regulation: 1991; Junk Fax Prevention Sturgeon; comments due 08 [FR E8-23554] GSAR Case 2006-G515; Act (2005); published 10-30- by 11-7-08; published 9-8- Missouri; comments due by Rewrite of Part 532, 08 08 [FR E8-20632] 11-7-08; published 10-8- 08 [FR E8-23877] Contract Financing; HOMELAND SECURITY Fisheries of the Exclusive comments due by 11-6- DEPARTMENT Economic Zone Off Alaska: New Jersey; Diesel Idling Rule Revisions; comments 08; published 10-7-08 [FR U.S. Customs and Border Atka Mackerel in the Bering due by 11-3-08; published E8-23660] Protection Sea and Aleutian Islands 10-2-08 [FR E8-23246] HOUSING AND URBAN Management Area; Technical Corrections Relating Environmental Statements; DEVELOPMENT comments due by 11-4- to the Rules of Origin for Notice of Intent: DEPARTMENT Goods Imported Under the 08; published 10-23-08 Coastal Nonpoint Pollution Prohibition on Use of Indian Nafta and for Textile and [FR E8-25327] Control Programs; States Community Development Apparel Products; published Bering Sea and Aleutian and Territories— Block Grant Assistance for 10-30-08 Islands Crab Florida and South Employment Relocation STATE DEPARTMENT Rationalization Program; Carolina; Open for Activities; comments due by Procedures for children comments due by 11-3- comments until further 11-7-08; published 9-8-08 abducted to the United 08; published 9-19-08 [FR notice; published 2-11- [FR E8-20785] States; published 10-30-08 E8-21989] 08 [FR 08-00596] Revision of Hearing Groundfish of the Gulf of Extension of Cross-Media Procedures; comments due Alaska; comments due by by 11-7-08; published 9-8- COMMENTS DUE NEXT Electronic Reporting Rule 11-3-08; published 10-3- Deadline for Authorized 08 [FR E8-20761] WEEK 08 [FR E8-23456] Programs; comments due Revisions to the Regulations Fisheries Off West Coast by 11-3-08; published 10- Implementing the Program AGRICULTURE States: 17-08 [FR E8-24824] Fraud Civil Remedies Act (1986); comments due by DEPARTMENT Fisheries Off West Coast National Emission Standards 11-7-08; published 9-8-08 Agricultural Marketing States; Pacific Coast for Hazardous Air Pollutants: [FR E8-20760] Service Groundfish Fishery; Chemical Manufacturing Irish Potatoes Grown in Biennial Specifications Area Sources; comments INTERIOR DEPARTMENT Washington; Modification of and Management due by 11-5-08; published Fish and Wildlife Service Late Payment and Interest Measures; Inseason 10-6-08 [FR E8-22518] Interagency Cooperation under Charge Regulation; Adjustments; Correction; National Priorities List, the Endangered Species comments due by 11-4-08; comments due by 11-6- Proposed Rule (No. 49); Act; comments due by 11-6- published 10-20-08 [FR E8- 08; published 10-7-08 [FR comments due by 11-3-08; 08; published 10-27-08 [FR 24918] E8-23722] published 9-3-08 [FR E8- E8-25678] 20389] Proposed Willamette Valley Specialty Crop Block Grant ENERGY DEPARTMENT Pesticide Tolerances for Native Prairie Habitat Program; Farm Bill; Coordination of Federal comments due by 11-3-08; Emergency Exemptions: Programmatic Safe Harbor Authorizations for Electric Linuron; comments due by Agreement: published 9-4-08 [FR E8- Transmission Facilities; 20486] 11-4-08; published 9-5-08 Fenders Blue Butterfly in comments due by 11-3-08; [FR E8-20627] Benton, Lane, Linn, AGRICULTURE published 9-19-08 [FR E8- Regulation of Fuels and Fuel Marion, Polk, and Yamhill DEPARTMENT 21867] Additives: Counties, OR; comments Animal and Plant Health ENVIRONMENTAL Modifications to Renewable due by 11-5-08; published Inspection Service PROTECTION AGENCY Fuel Standard; comments 10-6-08 [FR E8-23556] Brucellosis in Cattle; State Approval and Promulgation of due by 11-3-08; published INTERIOR DEPARTMENT and Area Classifications; Air Quality Implementation 10-2-08 [FR E8-23131] Reclamation Bureau Montana; comments due by Plans: Time-Limited Pesticide Bureau of Reclamation Loan 11-3-08; published 9-3-08 Texas; Reasonable Further Tolerances: Guarantees; comments due [FR E8-20374] Progress Plan, Motor Pyraflufen-ethyl; comments by 11-5-08; published 10-6- COMMERCE DEPARTMENT Vehicle Emissions due by 11-4-08; published 08 [FR E8-23444] Interagency Cooperation under Budgets and Revised 9-5-08 [FR E8-20515] MANAGEMENT AND the Endangered Species 2002 Emissions Inventory; FEDERAL BUDGET OFFICE Act; comments due by 11-6- Dallas/Fort Worth Ozone COMMUNICATIONS Federal Procurement Policy 08; published 10-27-08 [FR Nonattainment Area; COMMISSION Office E8-25678] comments due by 11-6- Radio Broadcasting Services: Cost Accounting Standards:

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Harmonization of Cost SOCIAL SECURITY Badami, AK; comments due session of Congress which Accounting Standards 412 ADMINISTRATION by 11-3-08; published 9- have become Federal laws. It and 413 with the Pension Representation of Parties; 18-08 [FR E8-21781] may be used in conjunction Protection Act of 2006; Revisions to Rules; Robinson R-22/R-44 Special with ‘‘P L U S’’ (Public Laws comments due by 11-3- comments due by 11-7-08; Training and Experience Update Service) on 202–741– 08; published 9-2-08 [FR published 9-8-08 [FR E8- Requirements; comments 6043. This list is also E8-20255] 20500] due by 11-5-08; published available online at http:// www.archives.gov/federal- MINE SAFETY AND HEALTH TRANSPORTATION 8-7-08 [FR E8-18239] register/laws.html. FEDERAL REVIEW DEPARTMENT TRANSPORTATION COMMISSION DEPARTMENT Federal Aviation The text of laws is not Federal Mine Safety and Administration Federal Highway Health Review Commission Administration published in the Federal Airworthiness Directives: Register but may be ordered Procedural Rules; comments Fair Market Value and Design- Boeing Model 747-100, 747- in ‘‘slip law’’ (individual due by 11-3-08; published Build Amendments; 100B, 747-200B, 747- pamphlet) form from the 9-2-08 [FR E8-20235] comments due by 11-7-08; 200C, 747 200F, 747-300, Superintendent of Documents, NUCLEAR REGULATORY published 10-8-08 [FR E8- 747SR, and 747SP Series U.S. Government Printing COMMISSION 23729] Airplanes; comments due Office, Washington, DC 20402 Medical Use of Byproduct by 11-7-08; published 9- TREASURY DEPARTMENT (phone, 202–512–1808). The Material: 23-08 [FR E8-22211] Foreign Assets Control text will also be made Amendments/Medical Event Boeing Model 747 Office available on the Internet from Definitions; Extension of Airplanes; comments due Economic Sanctions GPO Access at http:// Comment Period; by 11-7-08; published 9- Enforcement Guidelines; www.gpoaccess.gov/plaws/ comments due by 11-7- 23-08 [FR E8-22215] comments due by 11-7-08; index.html. Some laws may 08; published 10-6-08 [FR published 9-8-08 [FR E8- Empresa Brasileira de not yet be available. E8-23534] 20704] Aeronautica S.A. PERSONNEL MANAGEMENT (EMBRAER) Model EMB TREASURY DEPARTMENT H.R. 6197/P.L. 110–448 OFFICE 120, 120ER, 120FC, Internal Revenue Service To designate the facility of the Prevailing Rate Systems: 120QC, and 120RT Rules for Home Construction United States Postal Service Redefinition of the Buffalo, Airplanes; comments due Contracts; comments due by located at 7095 Highway 57 in NY, and Pittsburgh, PA, by 11-6-08; published 10- 11-3-08; published 8-4-08 Counce, Tennessee, as the Appropriated Fund 7-08 [FR E8-23666] [FR E8-17830] Federal Wage System ‘‘Pickwick Post Office General Electric Company Section 108 Reduction of Tax Wage Areas; comments Building’’. (Oct. 22, 2008; 122 (GE) CF6 80A Series Attributes for S due by 11-6-08; published Stat. 5013) Turbofan Engines; Corporations; comments due 10-7-08 [FR E8-23725] comments due by 11-3- by 11-4-08; published 8-6- Last List October 23, 2008 Recruitment and Selection 08; published 9-4-08 [FR 08 [FR E8-17952] through Competitive E8-20497] Substantiation and Reporting Examinations; comments Automatic Dependent Requirements for Cash and due by 11-3-08; published Noncash Charitable 9-2-08 [FR E8-20272] Surveillance - Broadcast Public Laws Electronic (ADS-B) Out Performance Contribution Deductions; Recruitment, Selection, and Notification Service Requirements to Support Air comments due by 11-5-08; Placement (General); (PENS) Traffic Control (ATC) published 8-7-08 [FR E8- comments due by 11-7-08; Service: 17953] published 9-8-08 [FR E8- Reopening of Comment TREASURY DEPARTMENT 20657] PENS is a free electronic mail Training: Period; comments due by Alcohol and Tobacco Tax 11-3-08; published 10-2- and Trade Bureau notification service of newly Supervisory, Management, 08 [FR E8-23199] Agency Information Collection enacted public laws. To and Executive subscribe, go to http:// Proposed Establishment of Activities; Proposals, Development; comments listserv.gsa.gov/archives/ Class E Airspace: Submissions, and Approvals; due by 11-3-08; published publaws-l.html 9-2-08 [FR E8-20273] Napakiak, AK; comments comments due by 11-3-08; due by 11-3-08; published published 9-4-08 [FR E8- SECURITIES AND 20451] Note: This service is strictly EXCHANGE COMMISSION 9-18-08 [FR E8-21782] for E-mail notification of new Commission Guidance on the Shageluk, AK; comments laws. The text of laws is not Use of Company Web Sites; due by 11-3-08; published LIST OF PUBLIC LAWS available through this service. comments due by 11-5-08; 9-18-08 [FR E8-21780] PENS cannot respond to published 8-7-08 [FR E8- Proposed Revision of Class E This is a continuing list of specific inquiries sent to this 18148] Airspace: public bills from the current address.

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