7–11–08 Friday Vol. 73 No. 134 July 11, 2008

Pages 39857–40166

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Contents Federal Register Vol. 73, No. 134

Friday, July 11, 2008

Agriculture Department Environmental Protection Agency See Forest Service RULES National Perchloroethylene Air Emission Standards for Dry Antitrust Division Cleaning Facilities, 39871–39875 NOTICES PROPOSED RULES National Cooperative Research and Production Act of 1993: Approval and Promulgation of Air Quality Implementation Cable Television Laboratories, Inc., 39986–39987 Plans: Interchangeable Virtual Instruments Foundation, Inc., Texas; Dallas/Fort Worth 1-Hour Ozone Nonattainment 39987 Area, 39897–39900 International Association for Continuing Education and Approval and Promulgation of Implementation Plans: Training, 39987 Texas; Control of Emissions of Nitrogen Oxides from National Floor Safety Institute, 39987 Cement Kilns, 39900–39915 PXI Systems Alliance, Inc., 39987–39988 NOTICES Environmental Impact Statements; Availability, etc., 39958– Army Department 39960 NOTICES Integrated Science Assessment for Oxides of Nitrogen— Inland Waterways Users Board; Request for Nominations, Health Criteria, 39960–39961 39952–39953 Meetings: Public Teleconference Meeting of the Chartered Science Blind or Severely Disabled, Committee for Purchase From Advisory Board, 39961 People Who Are Total Coliform Rule Distribution System Advisory See Committee for Purchase From People Who Are Blind Committee, 39962 or Severely Disabled Equal Employment Opportunity Commission Children and Families Administration RULES NOTICES Enforcement of Nondiscrimination on the Basis of Agency Information Collection Activities; Proposals, Disability in Programs or Activities Conducted by the Submissions, and Approvals, 39963–39964 Equal Employment Opportunity Commission, etc., 39866–39868 Coast Guard RULES Federal Aviation Administration Safety and Security Zones: NOTICES Northeast Gateway Deepwater Port, Atlantic Ocean, MA; Environmental Impact Statements; Availability, etc.: Liquefied Natural Gas Carriers, Massachusetts Bay, Chicago/Rockford International Airport, Rockford, IL, MA, 39868–39871 40010 Environmental Impact Statements; Intent, etc.: Commerce Department Gnoss Field, Novato, Marin County, CA, 40010–40011 See Industry and Security Bureau Intent to Rule on Request to Release Airport Property: See International Trade Administration Hondo Municipal Airport, Hondo,TX, 40011 See National Oceanic and Atmospheric Administration Receipt of Noise Compatibility Program and Request for Review: Committee for Purchase From People Who Are Blind or Meadows Field Airport, Bakersfield, CA, 40011–40012 Severely Disabled NOTICES Federal Deposit Insurance Corporation Procurement List Additions and Deletion, 39938–39939 NOTICES Meetings; Sunshine Act, 39962–39963 Defense Department See Army Department Federal Energy Regulatory Commission Education Department NOTICES NOTICES Environmental Assessment; Intent: Agency Information Collection Activities; Proposals, Algonquin Gas Transmission, LLC, 39954–39956 Submissions, and Approvals, 39953–39954 Institution of Proceeding and Refund Effective Date, 39956 Paper Scoping and Soliciting Scoping Comments and Errata Employment and Training Administration to Tendering Notice: NOTICES Hydrodynamics, Inc., 39956–39958 Change in Status of an Extended Benefit Period for Rhode Island, 39988 Federal Highway Administration NOTICES Energy Department Environmental Impact Statement; Intent: See Federal Energy Regulatory Commission Anchorage, AK, 40012–40013

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Federal Railroad Administration Indian Affairs Bureau RULES RULES Rail Line Relocation and Improvement Projects; Capital Law and Order on Indian Reservations, 39857–39863 Grants, 39875–39889 Indian Health Service Federal Reserve System NOTICES NOTICES Competitive Continuation and New Grants Funding; Meetings; Sunshine Act, 39963 Correction, 40014 Tribal Self-Governance Program; Planning Cooperative Federal Trade Commission Agreement, 39973–39977 RULES Automotive Fuel Ratings, Certification and Posting, 40154– Industry and Security Bureau 40165 NOTICES Meetings: Fish and Wildlife Service Sensors and Instrumentation Technical Advisory NOTICES Committee, 39939 Draft Comprehensive Conservation Plan/Environmental Impact Statement: Interior Department Desert National Wildlife Refuge Complex, Clark, Lincoln, See Fish and Wildlife Service and Nye Counties, NV, 39979–39981 See Indian Affairs Bureau Draft Comprehensive Conservation Plan and Environmental See Land Management Bureau Assessment; Availability: See Minerals Management Service Delta and Breton National Wildlife Refuges, LA, 39978– See National Park Service 39979 International Trade Administration Swanquarter National Wildlife Refuge, Hyde County, NC; Correction, 39979 NOTICES Amended Final Results of Administrative Reviews Pursuant Papahanaumokuakea Marine National Monument, Hawai’i, to Final Court Decisions: 39951–39952 Freshwater Crawfish Tail Meat from the People’s Republic of China, 39939–39940 Food and Drug Administration Antidumping Duty Administrative Review: NOTICES Certain Frozen Warmwater Shrimp from Brazil, 39940– Agency Information Collection Activities; Proposals, 39945 Submissions, and Approvals, 39964 Certain Frozen Warmwater Shrimp from Ecuador, 39945– Draft Guidance for Industry: 39948 Providing Regulatory Submissions in Electronic Format- Antidumping or Countervailing Duty Order, Finding, or Drug Establishment Registration and Drug Listing; Suspended Investigation; Opportunity to Request Availability, 39964–39968 Administrative Review, 39948–39949 Global Harmonization Task Force, Study Groups 1 and 5; Decision on Application for Duty-Free Entry of Electron Proposed and Final Documents; Availability, 39968– Microscopes: 39969 Howard Hughes Medical Institute, 39949–39950 Guidance for Industry and Food and Drug Administration Staff: Justice Department Surveillance and Detention Without Physical See Antitrust Division Examination of Surgeons’ and/or Patient Examination See Prisons Bureau Gloves; Availability, 39969–39972 NOTICES Meetings: Lodging of Consent Decree under the Safe Drinking Water Approaches to Reduce Risk of Transfusion-Transmitted Act, 39985–39986 Babesiosis in the United States, 39972 Settlement Agreements: Request for Nominations for Voting Members on Public Jack R. Bennett, 39986 Advisory Committee: Food Advisory Committee, 39972–39973 Labor Department See Employment and Training Administration Forest Service See Occupational Safety and Health Administration NOTICES Proposed New Fee Sites, 39938 Land Management Bureau NOTICES Health and Human Services Department Decision Approving Lands For Conveyance: See Children and Families Administration Alaska Native Claims Selection, 39982 See Food and Drug Administration Environmental Impact Statements; Availability, etc.: See Indian Health Service Proposed Sunrise Powerlink Project; CA, 39982–39983 See National Institutes of Health Meetings: See Substance Abuse and Mental Health Services BLM-Alaska Resource Advisory Council, 39983–39984 Administration Minerals Management Service Homeland Security Department NOTICES See Coast Guard Agency Information Collection Activities; Proposals, See U.S. Immigration and Customs Enforcement Submissions, and Approvals; Correction, 40014

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National Aeronautics and Space Administration Prisons Bureau NOTICES RULES National Environmental Policy Act; Disposition of Space Inmate Work and Performance Pay Program: Shuttle Program’s Real and Personal Property, 39989– Reduction in Pay for Drug- and Alcohol-related 39991 Disciplinary Offenses, 39864–39866 Intensive Confinement Center Program, 39863–39864 National Highway Traffic Safety Administration RULES Securities and Exchange Commission Schedule of Fees Authorized: RULES Offer of Cash Deposits or Obligations of the United Commission Guidance and Amendment to the Rules States, 39890–39896 NOTICES Relating to Organization and Program Management, Consumer Information; New Car Assessment Program, etc., 40144–40152 PROPOSED RULES 40016–40050 References to Ratings of Nationally Recognized Statistical National Institutes of Health Ratings Organizations, 40124–40142 NOTICES References to Ratings of Nationally Recognized Statistical Meetings: Rating Organizations, 40088–40106 National Heart, Lung, and Blood Institute, 39977 Security Ratings, 40106–40124 NOTICES National Oceanic and Atmospheric Administration Self-Regulatory Organizations; Proposed Rule Changes: PROPOSED RULES Chicago Board Options Exchange, Inc., LLC, 40000–40001 Fisheries Off West Coast States: NASDAQ Stock Market LLC, 40002–40005 Pacific Coast Groundfish Fishery (Amendment 15), 39930–39937 Small Business Administration International Fisheries; Pacific Tuna Fisheries: NOTICES Revisions to Regulations for Vessels Authorized to Fish MANUSCRIPT for Tuna and Tuna-like Species in the Eastern Disaster Declaration: Tropical Pacific Ocean, 39915–39930 Wisconsin, 40005 NOTICES Availability of Grant Funds (FY 2009), 40052–40085 Social Security Administration Endangered Species (File Nos. 13306 and 13307), 39950 NOTICES Environmental Impact Statement for Amendment 30B: Agency Information Collection Activities; Proposals, Fisheries of the Caribbean, Gulf of Mexico, and South Submissions, and Approvals, 40005–40007 Atlantic; Reef Fish Fishery of the Gulf of Mexico, 39950–39951 Marine Mammals (File No. 716-1705), 39951 State Department Papahanaumokuakea Marine National Monument, Hawai’i, NOTICES 39951–39952 Department of State, Foreign Operations, and Related U.S. Climate Change Science Program Synthesis and Programs Appropriations Act, 2008; Determination Assessment Product Draft Report 2.3: Pursuant to Section 686; Waiver, 40007–40008 Aerosol Properties and Their Impacts on Climate, 39952 Exchange Visitor Program; Termination of Flight Training Programs, 40008 National Park Service NOTICES Substance Abuse and Mental Health Services Agency Information Collection Activities; Proposals, Administration Submissions, and Approvals, 39984–39985 NOTICES Nuclear Regulatory Commission Meetings: NOTICES Center for Substance Abuse Prevention National Advisory Availability Of Environmental Assessment; Availability: Council, 39977 Naval Air Warfare Center Weapons Division In China Center for Substance Abuse Treatment National Advisory Lake, CA, 39991–39993 Council, 39977–39978 Issuance and Availability of Regulatory Guide 6.1, Revision 2, 39993–39994 Transportation Department Issuance of Regulatory Guides, 39994–39995 See Federal Aviation Administration Tennessee Valley Authority; Watts Bar Nuclear Plant, Unit See Federal Highway Administration 2: See Federal Railroad Administration Order, 39995–39996 See National Highway Traffic Safety Administration Occupational Safety and Health Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40008–40010 Submissions, and Approvals, 39988–39989 Treasury Department Postal Regulatory Commission NOTICES NOTICES Meetings: Administrative Practice and Procedure, Postal Service; President’s Advisory Council on Financial Literacy, Correction, 39996–40000 40013

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U.S. Immigration and Customs Enforcement Part V NOTICES Securities and Exchange Commission, 40144–40152 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39978 Part VI Federal Trade Commission, 40154–40165 Separate Parts In This Issue

Part II Reader Aids Transportation Department, National Highway Traffic Consult the Reader Aids section at the end of this issue for Safety Administration, 40016–40050 phone numbers, online resources, finding aids, reminders, Part III and notice of recently enacted public laws. Commerce Department, National Oceanic and Atmospheric To subscribe to the Federal Register Table of Contents Administration, 40052–40085 LISTSERV electronic mailing list, go to http:// listserv.access.gpo.gov and select Online mailing list Part IV archives, FEDREGTOC-L, Join or leave the list (or change Securities and Exchange Commission, 40088–40142 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.

16 CFR 306...... 40154 17 CFR 200...... 40144 241...... 40144 Proposed Rules: 229...... 40106 230...... 40106 239...... 40106 240 (2 documents) ...... 40088, 40106 242...... 40088 249...... 40088 270...... 40124 275...... 40124 25 CFR 11...... 39857 28 CFR 524...... 39863 545...... 39864 29 CFR 1615...... 39866 33 CFR 165...... 39868 40 CFR 63...... 39871 Proposed Rules: 52 (3 documents) ...... 39897, 39900, 39911 49 CFR 262...... 39875 594...... 39890 50 CFR Proposed Rules: 216...... 39915 300...... 39915 660...... 39930

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Rules and Regulations Federal Register Vol. 73, No. 134

Friday, July 11, 2008

This section of the FEDERAL REGISTER IV. Procedural Requirements Affairs in the Departmental Manual at contains regulatory documents having general A. Regulatory Planning and Review 209 DM 8. applicability and legal effect, most of which (Executive Order 12866) are keyed to and codified in the Code of B. Regulatory Flexibility Act III. Discussion of Comments Received Federal Regulations, which is published under C. Small Business Regulatory Enforcement on Proposed Rule 50 titles pursuant to 44 U.S.C. 1510. Fairness Act D. Unfunded Mandates Reform Act Three tribes submitted written The Code of Federal Regulations is sold by E. Takings Implication Assessment statements during the 30-day comment the Superintendent of Documents. Prices of (Executive Order 12630) period. One tribe submitted comments new books are listed in the first FEDERAL F. Federalism (Executive Order 13132) after expiration of the comment period; REGISTER issue of each week. G. Civil Justice Reform (Executive Order the Bureau entered these comments into 12988) the administrative record but, in H. Consultation With Indian Tribes accordance with Departmental policy, DEPARTMENT OF THE INTERIOR (Executive Order 13175) did not substantially rely on them in I. Paperwork Reduction Act J. National Environmental Policy Act developing the final rule. Timely Bureau of Indian Affairs K. Information Quality Act comments were submitted by: The L. Effects on the Energy Supply (Executive Comanche Nation of Oklahoma; The 25 CFR Part 11 Order 13211) Chickasaw Nation of Oklahoma; and the RIN 1076–AE67 Gaming Commission of the Cheyenne I. Background and Arapaho Tribes of Oklahoma. The Law and Order on Indian Reservations This final rule amends 25 CFR part following discussion summarizes 11, the Bureau of Indian Affairs significant comments by these three AGENCY: Bureau of Indian Affairs, regulation governing the Courts of tribes and the Bureau’s responses. Interior. Indian Offenses (otherwise known as A. Civil Jurisdiction ACTION: Final rule. CFR Courts) and the Law and Order Code. CFR Courts administer justice Several tribes objected to the changes SUMMARY: This final rule amends the where Indian tribes retain exclusive in section 11.116 which they claimed Bureau of Indian Affairs regulation jurisdiction over Indians but where created ambiguity concerning the governing the Courts of Indian Offenses tribal courts have not been established courts’ jurisdiction in civil matters. The (otherwise known as CFR Courts) and to exercise that jurisdiction. Part 11 first concern was the proposed rule’s the Law and Order Code. CFR Courts applies only to those tribes occupying change from providing jurisdiction in administer justice where Indian tribes the Indian country over which a Court cases in which ‘‘the defendant is an retain exclusive jurisdiction over of Indian Offense has jurisdiction. At Indian’’ to cases in which ‘‘the claimant Indians but where tribal courts have not any time, these tribes may adopt their is an Indian.’’ The Bureau agrees that been established to exercise that own tribal court systems to replace the the current rule’s language providing jurisdiction. This final rule updates the CFR courts by following the steps in 25 jurisdiction in those cases in which the list of Indian tribes for which Courts of CFR 11.100(c) (which has not been defendant is an Indian should be Indian Offenses are established and for affected by this final rule). retained. As such, section 11.116(a)(1) which the law and order provisions of The final rule updates the list of CFR of the final rule reads: ‘‘The defendant the regulations apply. This final rule courts. The final rule also addresses the is an Indian.’’ also clarifies jurisdictional limitations; need for additional offenses, which has The second concern was the adds offenses for drug abuse, abuse of become apparent as drug abuse and ambiguity as to jurisdiction over claims psychotoxic substances, child abuse, family violence have increasingly against non-Indian defendants and prostitution, and family violence; and plagued Indian country, and the need counter-defendants. In particular, one increases maximum penalties for for increased maximum penalty commenter stated that the proposed rule various offenses. amounts. The final rule also makes provision allowing jurisdiction only by DATES: This rule is effective on August several editorial changes to comply with stipulation of the parties unnecessarily 11, 2008. the Plain Language Initiative, for diminished civil jurisdiction of the CFR FOR FURTHER INFORMATION CONTACT: example, by changing headings to Court. The Bureau agrees. Section Joseph Little, Office of Justice Services, question form. The Bureau of Indian 11.116 (a)(2) will be changed to read: Bureau of Indian Affairs, 1001 Indian Affairs published proposed revisions to ‘‘Other claims, including counterclaims, School Road, NW., Albuquerque, NM 25 CFR part 11 on December 19, 2007 provided that at least one party is an 87104. Telephone: (505) 563–3833. (72 FR 71835). Indian.’’ This language complies with Supreme Court rulings on tribal SUPPLEMENTARY INFORMATION: II. Statutory Authority jurisdiction. I. Background The authority to issue this II. Statutory Authority amendment is vested in the Secretary of B. Appointment of Magistrates III. Discussion of Comments Received on the Interior by 5 U.S.C. 301 and 25 Two tribes objected to changes in Proposed Rule U.S.C. 2 and 9, and 25 U.S.C. 13 which section 11.201(a) that call for A. Civil Jurisdiction B. Appointment of Magistrates authorize appropriations for ‘‘Indian ‘‘consultation’’ with the tribe or tribes C. Jury Panel judges.’’ This rule is published in the before appointing a magistrate rather D. List of Courts of Indian Offenses exercise of the rulemaking authority than seeking ‘‘confirmation by a E. Thirty-Day Comment Period delegated by the Secretary of the Interior majority vote of the tribal governing F. Compliance with Executive Order 13175 to the Assistant Secretary—Indian body.’’ The Bureau has considered this

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comment and is tabling this change. The substantial direct effects. The Bureau dated February 28, 1935. The Solicitor final rule therefore does not include the examined each regulatory change for its found that authority to rest principally proposed change to ‘‘consultation,’’ but effects on these tribes and found that, in the statutes placing supervision of instead retains current regulatory generally, the regulatory changes were Indians in the Secretary of the Interior, language requiring confirmation. merely updates, which would not 25 U.S.C. 2 and 9, and 25 U.S.C. 13, substantially affect caseloads, require which authorizes appropriations for C. Jury Panel additional outlays, or otherwise ‘‘Indian judges.’’ The United States One tribe stated that changing section substantially and directly affect these Supreme Court recognized the authority 11.414(c) to increase the jury panel from tribes. The Bureau also examined the of the Secretary to promulgate 8 to 12 residents may result in an undue relationship between the Federal regulations with respect to Courts of hardship for courts serving rural or Government and these tribes and the Indian Offenses in United States v. sparsely populated areas. The Bureau distribution of power between the Clapox, 35 F. 575 (D. Ore. 1888). agrees. The Indian Civil Rights Act of Federal Government and these tribes, B. Regulatory Flexibility Act 1968 (25 U.S.C. 1302) requires jury trials and determined that there was no of not less than six (6) persons. The substantial direct effect. Finally, the The Department of the Interior, Bureau has determined that this is a proposed and final rules have no effect Bureau of Indian Affairs, certifies that reasonable standard for a court on the ability of tribes subject to part 11 this rule will not have a significant functioning in Indian country. (i.e., occupying the Indian country over economic effect on a substantial number Therefore, section 11.314 9(c) of the which a Court of Indian Offense has of small entities as defined under the final rule reads, ‘‘[a] jury must consist jurisdiction) to enact and obtain Regulatory Flexibility Act (5 U.S.C. 601 of not less than 6 residents of the Secretarial approval of enforceable et seq.). An initial Regulatory Flexibility vicinity in which the trial is held, ordinances. Analysis is not required. Accordingly, a selected from a list of eligible jurors Small Entity Compliance Guide is not IV. Procedural Requirements ***’’ required. The amendment to 25 CFR D. List of Courts of Indian Offenses A. Regulatory Planning and Review part 11.100(a) updates the list of Court (Executive Order 12866) of Indian Offenses with limited criminal The Comanche Nation specifically In accordance with the criteria in jurisdiction over Indians within a objected to section 11.100 deleting limited geographical area of Indian ‘‘(except Comanche Children’s Court).’’ Executive Order 12866, this rule is not a significant regulatory action. OMB country. Accordingly, there will be no The Bureau did not intend to interfere impact on any small entities. with the operation of the Comanche makes the final determination under Children’s Court, and has re-inserted Executive Order 12866. C. Small Business Regulatory that language into the final rule. (a) This rule will not have an annual Enforcement Fairness Act economic effect of $100 million or E. Thirty-Day Comment Period adversely affect an economic sector, This rule is not a major rule under 5 One tribe asserted that the thirty-day productivity, jobs, the environment, or U.S.C. 804(2), the Small Business comment period was not sufficient and other units of government. A cost- Regulatory Enforcement Fairness Act. should be extended. The Bureau benefit and economic analysis is not This rule: considered this request for extension required. The establishment of an (a) Does not have an annual effect on and determined that the thirty-day average Court of Indian Offenses is the economy of $100 million or more. comment period was sufficient. In estimated to cost less than $200,000 The establishment of an average Court making this determination, the Bureau annually to operate. The cost associated of Indian Offenses is estimated to cost considered the limited number of with the operation of this court will be less than $200,000 per court to operate changes proposed, the limited number with the Bureau of Indian Affairs. annually. The cost associated with the of potentially affected tribes, and the (b) This rule will not create operation of these courts will be with potential effect on those tribes. The inconsistencies with other agencies’ the Bureau of Indian Affairs. Bureau also considered the fact that it actions. The Department of the Interior (b) Will not cause a major increase in received only one objection to the through the Bureau of Indian Affairs has costs or prices for consumers, length of the comment period, and that the sole responsibility and authority to individual industries, Federal, State, or the tribe that objected to the length of establish Courts of Indian Offenses on local government agencies, or the comment period nevertheless Indian reservations. geographic regions. This is a court provided comments on the proposed (c) This rule will not materially affect established primarily for the changes contained in the proposed rule. entitlements, grants, user fees, loan administration of misdemeanor justice programs, or the rights and obligations for Indians located within the F. Compliance With Executive Order of their recipients. The establishment of boundaries of Indian country and will 13175 Court of Indian Offenses will not affect not have any cost or price impact on any One tribe asserted that the proposed any program rights of any Indian tribe. other entities in the geographical region. rule violated Executive Order 13175 Its primary function will be to (c) Does not have significant adverse because the rule affects tribes that use administer justice for misdemeanor effects on competition, employment, CFR Courts as their tribal courts. The offenses within Indian country. The investment, productivity, innovation, or Bureau examined whether the revisions court’s criminal jurisdiction will be the ability of U.S. based enterprises to would have substantial direct effects on limited to criminal offenses provided in compete with foreign-based enterprises. one or more Indian tribes and 25 CFR part 11 and the Law and Order These are courts established primarily determined that they would not. The Code of Indian tribes as applicable. for the administration of misdemeanor Bureau focused on those tribes (d) This rule will not raise novel legal justice for Indians located within the occupying the Indian country over or policy issues. The Solicitor analyzed boundaries of Indian country, and will which a Court of Indian Offense has and upheld the Department of the not have an adverse impact on jurisdiction, in examining whether the Interior’s authority to establish Courts of competition, investment, productivity, proposed changes would have Indian Offenses in a memorandum innovation, or the ability of U.S.-based

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enterprises to compete with foreign- Secretary of the Interior, 25 U.S.C. 2 and List of Subjects in 25 CFR Part 11 based enterprises. 9; and 25 U.S.C. 13, which authorizes Courts, Indians—law, Law appropriations for ‘‘Indian judges.’’ The D. Unfunded Mandates Reform Act enforcement, Penalties. United States judiciary recognized the In accordance with the Unfunded authority of the Secretary to promulgate Dated: May 10, 2008. Mandates Reform Act (2 U.S.C. 1501 et regulations with respect to Courts of Carl J. Artman, seq.): Indian Offenses in United States v. Assistant Secretary—Indian Affairs. (a) This rule will not ‘‘significantly or Clapox, 35 F. 575 (D. Ore. 1888). Part 11 I For the reasons set out in the uniquely’’ affect small governments. A also requires the establishment of an preamble, the Bureau of Indian Affairs Small Government Agency Plan is not appeals court; hence, the judicial system amends 25 CFR part 11 as set forth required. The establishment of a Court defined in Executive Order 12988 will below. of Indian Offenses will not have not normally be involved in this judicial jurisdiction to affect any rights of the process. PART 11—COURTS OF INDIAN small governments. Its primary function OFFENSES AND LAW AND ORDER will be to administer justice for H. Consultation With Indian Tribes CODE misdemeanor offenses within the (Executive Order 13175) boundaries of Indian country. Its Under the criteria in Executive Order I 1. The authority citation for 25 CFR jurisdiction will be limited to criminal 13175, we have evaluated this rule and part 11 continues to read as follows: offenses provided in 25 CFR part 11. determined that it has no potential Authority: 5 U.S.C. 301; R.S. 463; 25 U.S.C. (b) This rule will not produce a effects on federally recognized Indian 2; R.S. 465; 25 U.S.C. 9; 42 Stat. 208; 25 Federal mandate of $100 million or tribes. The amendment to 25 CFR part U.S.C. 13; 38 Stat. 586; 25 U.S.C. 200. greater in any year; i.e., it is not a 11 does not automatically apply to all I 2. Revise the heading of part 11 to ‘‘significant regulatory action’’ under federally recognized tribes; part 11 read as set forth above. the Unfunded Mandates Reform Act. applies only when the establishment of I 3. Revise subpart A to read as follows: the provisional Court of Indian Offenses E. Takings Implication Assessment Subpart A—Application; Jurisdiction (Executive Order 12630) is necessary until that tribe establishes a tribal court to provide for a law and Sec. In accordance with Executive Order order code and judicial system within 11.100 Where are Courts of Indian Offenses 12630, the rule does not have significant the exterior boundaries of its Indian established? takings implication. A takings 11.102 What is the purpose of this part? reservation. The Department of the 11.104 When does this part apply? implication assessment is not required. Interior establishes a provisional court, The amendments to 25 CFR part 11 will 11.106 Who is an Indian for purposes of to fulfill its trust responsibility towards this part? establish Courts of Indian Offenses with tribal governments and complies with 11.108 How are tribal ordinances affected limited criminal jurisdiction over the unique government-to-government by this part? Indians within a limited geographical relationship that exists between the 11.110 How are tribal customs affected by area of Indian country. Federal Government and Indian tribes. this part? 11.112 [Reserved] F. Federalism (Executive Order 13132) I. Paperwork Reduction Act 11.114 What is the criminal jurisdiction of In accordance with Executive Order This amendment to the regulation the Court of Indian Offenses? 13132, the rule does not have significant 11.116 What is the civil jurisdiction of a does not require information collection Court of Indian Offenses? Federalism effects. A Federalism under the Paperwork Reduction Act. assessment is not required. The Solicitor 11.118 What are the jurisdictional found that authority to rest principally J. National Environmental Policy Act limitations of the Court of Indian Offenses? in the statutes placing supervision of the We have analyzed this rule in Indians in the Secretary of the Interior, accordance with the criteria of the Subpart A—Application; Jurisdiction 25 U.S.C. 2 and 9; and 25 U.S.C. 13, National Environmental Policy Act and which authorizes appropriations for 516 DM. This rule does not constitute a § 11.100 Where are Courts of Indian ‘‘Indian judges.’’ The United States major Federal action significantly Offenses established? judiciary recognized the authority of the affecting the quality of the human (a) Unless indicated otherwise in this Secretary to promulgate regulations environment. An environmental impact title, these Courts of Indian Offenses are with respect to Courts of Indian statement/assessment is not required. established and the regulations in this Offenses in United States v. Clapox, 35 The establishment of a Court of Indian part apply to the Indian country (as F. 575 (D. Ore. 1888). Offenses conveys personal jurisdiction defined in 18 U.S.C. 1151 and by over the criminal misdemeanor actions Federal court precedent) occupied by G. Civil Justice Reform (Executive Order the following tribes: 12988) of Indians with the exterior boundaries of Indian country. (1) Te-Moak Band of Western In accordance with Executive Order Shoshone Indians (Nevada); 12988, the Office of the Solicitor has K. Information Quality Act (2) Ute Mountain Ute Tribe determined that the rule does not In developing this rule, we did not (Colorado); unduly burden the judicial system and conduct or use a study, experiment, or (3) Tribes located in the former meets the requirements of sections 3(a) survey requiring peer review under the Oklahoma Territory (Oklahoma) that are and 3(b)(2) of the Order. The Solicitor Data Quality Act (Pub. L. 106–544). listed in paragraph (b) of this section; analyzed and upheld the Department of (4) Tribes located in the former Indian the Interior’s authority to establish L. Effects on the Energy Supply Territory (Oklahoma) that are listed in Courts of Indian Offenses in a (Executive Order 13211) paragraph (c) of this section; memorandum dated February 28, 1935. This rule does not have a significant (5) Winnemucca Indian Tribe; and The Solicitor found that authority to rest effect on the nation’s energy supply, (6) Santa Fe Indian School Property, principally in the statutes placing distribution, or use as defined by including the Santa Fe Indian Health supervision of the Indians in the Executive Order 13211. Hospital, and the Albuquerque Indian

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School Property (land held in trust for individual who is an ‘‘Indian’’ for the (b) A Court of Indian Offenses may the 19 Pueblos of New Mexico). purposes of 18 U.S.C. 1152–1153. not adjudicate an election dispute, take (b) This part applies to the following jurisdiction over a suit against a tribe, or tribes located in the former Oklahoma § 11.108 How are tribal ordinances adjudicate any internal tribal affected by this part? Territory (Oklahoma): government dispute, unless the relevant (1) Apache Tribe of Oklahoma; The governing body of each tribe tribal governing body passes a (2) Caddo Nation of Oklahoma; occupying the Indian country over resolution, ordinance, or referendum (3) Comanche Nation (except which a Court of Indian Offenses has granting the court jurisdiction. jurisdiction may enact ordinances Comanche Children’s Court); (c) In deciding who is a tribal official, which, when approved by the Assistant (4) Delaware Nation; BIA will give deference to a decision of Secretary—Indian Affairs or his or her (5) Fort Sill Apache Tribe of the Court of Indian Offenses, acting as Oklahoma; designee: (a) Are enforceable in the Court of a tribal forum by resolution or (6) Kiowa Tribe of Oklahoma; ordinance of a tribal governing body (7) Otoe-Missouria Tribe of Indian Offenses having jurisdiction over the Indian country occupied by that under paragraph (b) of this section. Oklahoma; and (d) A tribe may not be sued in a Court (8) Wichita and Affiliated Tribes of tribe; and (b) Supersede any conflicting of Indian Offenses unless its tribal Oklahoma. regulation in this part. governing body explicitly waives its (c) This part applies to the following tribal immunity by tribal resolution or tribes located in the former Indian § 11.110 How are tribal customs affected ordinance. Territory (Oklahoma): by this part? (1) Choctaw Nation; Each Court of Indian Offenses shall Subpart B—Courts of Indian Offenses; (2) Seminole Nation; apply the customs of the tribe Personnel; Administration (3) Eastern Shawnee Tribe; occupying the Indian country over (4) Miami Tribe; which it has jurisdiction to the extent I 3A. In § 11.200, revise the section (5) Modoc Tribe; that they are consistent with the heading and paragraph (c) to read as (6) Ottawa Tribe; regulations of this part. follows: (7) Peoria Tribe; (8) Quapaw Tribe; and § 11.112 [Reserved]. § 11.200 What is the composition of the Court of Indian Offenses? (9) Wyandotte Nation. § 11.114 What is the criminal jurisdiction * * * * * of the Court of Indian Offenses? § 11.102 What is the purpose of this part? (c) Appeals must be heard by a panel (a) Except as otherwise provided in It is the purpose of the regulations in of magistrates who were not involved at this title, each Court of Indian Offenses this part to provide adequate machinery the tribal/trial level. has jurisdiction over any action by an for the administration of justice for * * * * * Indian tribes in those areas of Indian Indian (hereafter referred to as person) I country where tribes retain jurisdiction that is made a criminal offense under 4. In § 11.201, revise the section over Indians that is exclusive of State this part and that occurred within the heading to read as follows: Indian country subject to the court’s jurisdiction but where tribal courts have § 11.201 How are magistrates for the Court not been established to exercise that jurisdiction. (b) No person may be prosecuted, of Indian Offenses appointed? jurisdiction. tried or punished for any offense unless * * * * * § 11.104 When does this part apply? the complaint is filed within 5 years I 5. In § 11.202, revise the section (a) The regulations in this part after the offense is committed. heading to read as follows: continue to apply to each tribe listed in § 11.116 What is the civil jurisdiction of a § 11.202 How is a magistrate of the Court § 11.100 until either: Court of Indian Offenses? of Indian Offenses removed? (1) BIA and the tribe enter into a (a) Except as otherwise provided in * * * * * contract or compact for the tribe to this title, each Court of Indian Offenses I 6. In § 11.203, revise the section provide judicial services; or has jurisdiction over any civil action heading to read as follows: (2) The tribe has put into effect a law- arising within the territorial jurisdiction and-order code that establishes a court of the court in which: § 11.203 How are the clerks of the Court of system and that meets the requirements (1) The defendant is an Indian; or Indian Offenses appointed and what are of paragraph (b) of this section. (2) Other claims, provided at least one their duties? (b) When a tribe adopts a legal code party is an Indian. * * * * * and establishes a judicial system, the (b) Any civil action commenced in a tribe must notify the Assistant Court of Indian Offenses is barred I 7. In § 11.205, revise the section Secretary—Indian Affairs or his or her unless the complaint is filed within 3 heading to read as follows: designee. The law-and-order code must years after the right of action first § 11.205 Are there standards for the be adopted by the tribe in accordance accrues. appearance of attorneys and lay with its constitution and by-laws or counselors? other governing documents. § 11.118 What are the jurisdictional limitations of the Court of Indian Offenses? * * * * * § 11.106 Who is an Indian for purposes of (a) A Court of Indian Offenses may I 8. In § 11.206, revise the section this part? exercise over a Federal or State official heading to read as follows: For the purposes of the enforcement only the same jurisdiction that it could of the regulations in this part, an Indian exercise if it were a tribal court. The § 11.206 Is the Court of Indian Offenses a court of record? is defined as a person who is a member jurisdiction of Courts of Indian Offenses of an Indian tribe which is recognized does not extend to Federal or State * * * * * by the Federal Government as eligible employees acting within the scope of I 9. In § 11.207, revise the section for services from the BIA, and any other their employment. heading to read as follows:

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§ 11.207 What are the responsibilities of (1) That is punishable by a maximum I 13. In § 11.315, revise paragraph (a) to Bureau of Indian Affairs employees? sentence of one year incarceration; or read as follows: * * * * * (2) In which the prosecutor informs § 11.315 Sentencing. I 10. In § 11.208, revise the section the court before the case comes to trial heading to read as follows: that a jail sentence will be sought. (a) Any person who has been convicted in a Court of Indian Offenses (b) If the prosecutor informs the court § 11.208 May Individual Indian Money of a criminal offense under the that no sentence of incarceration will be accounts be used for payment of regulations of this part may be sought, the court may not impose a judgments? sentenced to one or a combination of the sentence of incarceration for the offense. * * * * * following penalties: (c) A jury must consist of not less than (1) Imprisonment for a period up to I 11. In § 11.209, revise the section six residents of the vicinity in which heading to read as follows: the maximum permitted by the section trial is held, selected from a list of defining the offense, but in no case for § 11.209 How does the Court of Indian eligible jurors prepared each year by the longer than one year; and Offenses dispose of fines? court. (2) A fine in an amount up to the * * * * * (1) An eligible juror must: maximum permitted by the section (i) Be at least 18 years of age; defining the offense, but in no case Subpart C—Criminal Procedure (ii) Not have been convicted of a greater than $5,000. felony; and * * * * * I 12. In § 11.314, redesignate (iii) Be otherwise qualified according paragraphs (c) through (e) as paragraphs to standards established by the Court of Subpart D—Criminal Offenses (d) through (f), revise paragraphs (a) and Indian Offenses under its general (b), and add a new paragraph (c), to read I rulemaking authority. 14. Revise § 11.450 to read as follows: as follows: (2) Any party may challenge without § 11.450 Maximum fines and sentences of § 11.314 Jury trials. cause a maximum of three members of imprisonment. (a) A defendant has a right, upon the jury panel chosen under this A person convicted of an offense demand, to a jury trial in any criminal section. under the regulations in this part may case: * * * * * be sentenced as follows:

Type of offense Maximum allowable sentence

(a) Misdemeanor ...... Up to 1 year in prison, or a fine of up to $5,000, or both. (b) Petty misdemeanor ...... Up to 6 months in prison, or a fine of up to $2,500, or both. (c) Violation ...... Up to 3 months in prison, or a fine of up to $1,000, or both.

I 15. Add new §§ 11.451 through 11.454 (4) Methyl ethyl; notice and an opportunity for any to read as follows: (6) Peptone; person claiming an interest in the (7) Pentachlorophenol; solvents to be heard. § 11.451 Abuse of psychotoxic chemical (8) Petroleum ether; or solvents. § 11.452 Possession of a controlled (9) Any other chemical substance the (a) It is unlawful to: substance. inhalation of whose fumes or vapors can (1) Intentionally smell or inhale the (a) It is unlawful for a person to cause intoxication, inebriation, fumes of any psychotoxic chemical knowingly or intentionally possess any excitement, stupefaction, or the dulling solvent or possess, purchase, or attempt controlled substance listed in 21 CFR of the brain or nervous system. to possess or purchase any psychotoxic Part 1308, as amended, unless: chemical solvent, for the purpose of (d) The statement listing the contents (1) The Controlled Substances Act or causing intoxication, inebriation, of a substance packaged in a container Drug Enforcement Agency regulations excitement, stupefaction, or the dulling by the manufacturer or producer thereof specifically authorizes possession of the of the brain or nervous system; or is rebuttable proof of the contents of the substance; (2) Sell, give away, dispense, or substance without further expert (2) The substance or preparation is distribute, or offer to sell, give away, testimony if it reasonably appears that excluded or exempted by 21 CFR dispense, or distribute, any psychotoxic the substance in the container is the 1308.21 through 1308.35, as amended; chemical solvent knowing or believing same substance placed therein by the or that the purchaser or another person manufacturer or producer. (3) The provisions of 42 U.S.C. 1996a intends to use the solvent in violation (e) Abuse of psychotoxic chemical (regarding traditional Indian religious of this section. solvents, as defined in this section, is use of peyote) apply. (b) This section does not apply to punishable as a petty misdemeanor, and (b) Violations of paragraph (a) of this inhalation of anesthesia for medical or the court may order any person using section are punishable as a dental purposes. psychotoxic chemical solvents as misdemeanor. (c) As used in this section, described in paragraph (a) of this (c) Any controlled substance involved ‘‘psychotoxic chemical solvent’’ means section to be committed to a facility for in violation of this section is declared to any glue, gasoline, paint, hair spray, treatment for up to 6 months. be contraband. Upon proof of a violation Lysol, or other substance containing one (f) Psychotoxic chemical solvents kept of this section, the controlled substance or more of the following chemical or used in violation of this section are must be forfeited to the Federal compounds: declared contraband. Upon proof of a Government by order of the court, after (1) Acetone and acetate; violation, these solvents must be public notice and an opportunity for (2) Benzene; forfeited to the Federal government by any person claiming an interest in the (3) Butyl-alcohol; order of the court, following public substance to be heard.

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(d) Any personal property used to the laws of the State in which the matter completion and make them available to transport, conceal, manufacture, in dispute lies. petitioners not represented by counsel. cultivate, or distribute a controlled I 17. Add a new subpart L to read as Law enforcement agencies may keep the substance in violation of this section is follows: forms on hand and make them available subject to forfeiture to the Federal upon request to victims of domestic Subpart L—Child Protection and Domestic Government by order of the court upon Violence Procedures violence. proof of this use, following public notice and opportunity for any person Sec. § 11.1204 Obtaining an emergency order 11.1200 Definitions. of protection. claiming an interest in the property to 11.1202 How to petition for an order of be heard. (a) When a victim files a petition for protection. an order of protection under § 11.202(a), 11.1204 Obtaining an emergency order of § 11.453 Prostitution or solicitation. protection. the court may immediately grant an ex A person who commits prostitution or 11.1206 Obtaining a regular (non- parte emergency order of protection if solicitation or who knowingly keeps, emergency) order of protection. the petition clearly shows that an act of maintains, rents, or leases, any house, 11.1208 Service of the protection order. domestic violence has occurred. The room, tent, or other place for the 11.1210 Duration and renewal of a regular order must meet the content purpose of prostitution is guilty of a protection order. requirements of § 11.206 (a) and (b). misdemeanor. 11.1212 Consequences of disobedience or (b) If the court does not immediately interference. grant an emergency order of protection § 11.454 Domestic violence. 11.1214 Relationship of this part to other under paragraph (a) of this section, the remedies. (a) A person who commits domestic court must either: violence by inflicting physical harm, Subpart L—Child Protection and (1) Within 72 hours after the victim bodily injury, or sexual assault, or Domestic Violence Procedures files a petition, serve notice to appear inflicting the fear of imminent physical upon both parties and hold a hearing on harm, bodily injury, or sexual assault on § 11.1200 Definitions. the petition for order of protection; or a family member, is guilty of a For purposes of this subpart: (2) If a notice of hearing cannot be misdemeanor. Domestic violence means to inflict served within 72 hours, issue an (b) For purposes of this section, a physical harm, bodily injury, or sexual emergency order of protection. family member is any of the following: assault, or the fear of imminent physical (c) If the court issues an ex parte (1) A spouse; harm, bodily injury, or sexual assault on emergency order of protection under (2) A former spouse; a family member. paragraph (a) of this section, it must (3) A person related by blood; Family member means any of the within 10 days hold a hearing on the (4) A person related by existing or following: question of continuing the order. If prior marriage; (1) A spouse; notice of hearing cannot be served (5) A person who resides or resided (2) A former spouse; within 10 days: with the defendant; (3) A person related by blood; (1) The emergency order of protection (6) A person with whom the (4) A person related by existing or is automatically extended for 10 days; defendant has a child in common; or prior marriage; and (5) A person who resides or resided (7) A person with whom the (2) If after the 10-day extension, defendant is or was in a dating or with the defendant; (6) A person with whom the notice to appear cannot be served, the intimate relationship. emergency order of protection expires. I defendant has a child in common; or 16. Revise § 11.500 to read as follows. (7) A person with whom the (d) If the court issues an ex parte defendant is or was in a dating or emergency order of protection under § 11.500 Law applicable to civil actions. paragraph (b)(2) of this section, it must (a) In all civil cases, the Magistrate of intimate relationship. Parent means persons who have a cause the order to be served on the a Court of Indian Offenses shall have child in common, regardless of whether person alleged to have committed a discretion to apply: they have been married or have lived family violence act and seek to hold a (1) Any laws of the United States that together at any time. hearing as soon as possible. If a hearing may be applicable; cannot be held within 10 days, the (2) Any authorized regulations § 11.1202 How to petition for an order of petitioner may ask the court to renew contained in the Code of Federal protection. the emergency protection order. Regulations; and A victim of domestic violence, or the (3) Any laws or customs of the tribe parent, guardian of a victim, or a § 11.1206 Obtaining a regular (non- occupying the area of Indian country concerned adult may petition the court emergency) order of protection. over which the court has jurisdiction under this subpart for an order of Following a hearing and finding that that are not prohibited by Federal laws. protection. an act of domestic violence occurred, (b) The delineation in paragraph (a) of (a) The petition must be made under the court may issue an order of this section does not establish a oath or accompanied by a sworn protection. The order must meet the hierarchy relative to the applicability of affidavit setting out specific facts requirements of paragraph (a) of this specific law in specific cases. describing the act of domestic violence. section and may meet the requirements (c) Where any doubt arises as to the (b) The petitioner is not required to of paragraph (b) of this section. Either customs of the tribe, the court may file for annulment, separation, or party may request a review hearing to request the advice of counselors familiar divorce in order to obtain an order of amend or vacate the order of protection. with those customs. protection. However, the petition (a) The order of protection must do all (d) Any matters that are not covered should state whether any legal action is of the following: by the laws or customs of the tribe, or pending between the petitioner and the (1) Specifically describe in clear by applicable Federal laws and respondent. language the behavior the court has regulations, may be decided by the (c) The Court may develop simplified ordered he or she do or refrain from Court of Indian Offenses according to petition forms with instructions for doing;

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(2) Give notice that violation of any respondent or his or her attorney was DATES: This rule is effective on August provision of the order of protection present at the time the order was issued; 11, 2008. constitutes contempt of court and may and FOR FURTHER INFORMATION CONTACT: result in a fine or imprisonment, or (d) If the court finds the petitioner Sarah Qureshi, Office of General both; and unable to pay court costs, the order will Counsel, Bureau of Prisons, phone (202) (3) Indicate whether the order of be served without cost to the petitioner. 307–2105. protection supersedes or alters prior SUPPLEMENTARY INFORMATION: Through orders pertaining to matters between the § 11.1210 Duration and renewal of a this rulemaking, the Bureau seeks to be parties. regular protection order. (b) The order of protection may do An order of protection granted by the clear to inmates and the public any of the following: court: regarding the termination of the ICC (1) Order the person who committed (a) Is effective for a fixed period of program. A proposed rule on this the act of domestic violence to refrain time, which is up to a maximum of 6 subject was published in the Federal from acts or threats of violence against months; and Register on November 2, 2006 (71 FR the petitioner or any other family (b) May be extended for good cause 64504). We received three comments. member; upon motion of the petitioner for an The issues raised by the commenters are (2) Order that the person who additional period of up to 6 months addressed below. committed the act of domestic violence each time a petition is presented. A One commenter, a former inmate, be removed from the home of the petitioner may request as many recounted his positive experience in an petitioner; extensions as necessary provided that ICC program in a Bureau facility, and (3) Grant sole possession of the the court determines that good cause suggested that such positive experiences residence or household to the petitioner exists. should be sufficient to continue the ICC during the period the order of protection program. is effective, or order the person who has § 11.1212 Consequences of disobedience Although this inmate is to be committed an act of domestic violence or interference. commended for taking full advantage of to provide temporary suitable Any willful disobedience or the opportunities offered through the alternative housing for the petitioner interference with any court order ICC program, we note that it is and other family members to whom the constitutes contempt of court which unfortunate that his experience was not respondent owes a legal obligation of may result in a fine or imprisonment, or repeated often enough to justify the support; both, in accordance with this part. extra costs implicated in the ICC (4) Award temporary custody of any program. As we stated in the preamble children involved when appropriate and § 11.1214 Relationship of this subpart to to the proposed rule, despite anecdotal provide for visitation rights, child other remedies. successes, research has found no support, and temporary support for the The remedies provided in this subpart significant difference in recidivism rates petitioner on a basis which gives are in addition to the other civil or between inmates who complete boot primary consideration to the safety of criminal remedies available to the camp programs and similar offenders the petitioner and other household petitioner. who serve their sentences in traditional members; [FR Doc. E8–15599 Filed 7–10–08; 8:45 am] institutions. (5) Order the person who is found to BILLING CODE 4310–4J–P Moreover, the costs associated with have committed an act of domestic maintaining the federal boot camp violence not to initiate contact with the programs exceed the costs of operating petitioner; ordinary minimum security camps, as a (6) Restrain the parties from DEPARTMENT OF JUSTICE result of (1) the staff resources necessary transferring, concealing, encumbering, Bureau of Prisons to maintain the intensive core or otherwise disposing of one another’s programming that make up the ‘‘shock property or the joint property of the 28 CFR Part 524 incarceration’’ or ‘‘intensive parties except in the usual course of confinement’’ experience, and (2) the business or for the necessities of life, [BOP–1141–F] high costs of housing offenders for and order the parties to account to the extended periods of time in Community court for all such transferring, RIN 1120–AB39 Corrections Centers, where the per encumbrances, and expenditures made Intensive Confinement Center Program capita costs are higher than those of after the order is served or housing offenders in minimum security communicated; and AGENCY: Federal Bureau of Prisons. camps. (7) Order other injunctive relief as the ACTION: Final rule. While there are some cost savings due court deems necessary for the protection to the early release of offenders who of the petitioner, including orders to law SUMMARY: The Bureau of Prisons successfully complete the program, enforcement agencies as provided by (Bureau) removes current rules on the these savings are minimal compared to this subpart. intensive confinement center program the additional costs of operating the § 11.1208 Service of the protection order. (ICC). The ICC is a specialized program program, which create a net increased When an order of protection is for non-violent offenders combining cost to the agency of more than $1 granted under this subpart: features of a military boot camp with million per year. (a) The petitioner must file it with the traditional Bureau correctional values. The remaining two commenters clerk of the court; The Bureau will no longer be offering expressed the idea that ‘‘Congress (b) The clerk of the court must send the ICC program (also known as Shock clearly intends for the BOP to run a a copy to a law enforcement agency Incarceration or Boot Camp) to inmates shock incarceration program; BOP with jurisdiction over the area in which as a program option. This decision was merely has the discretion to decide the court is located; made as part of an overall strategy to which inmates it places therein. No (c) The order must be personally eliminate programs that do not reduce logical reading of section 4046 implies served upon the respondent, unless the recidivism. that the discretionary ‘may’ in

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subsection (a) refers to giving BOP that it will not have a significant through 524.33, is removed and discretion as to offering the shock economic impact upon a substantial reserved. incarceration program.’’ number of small entities because: this [FR Doc. E8–15784 Filed 7–10–08; 8:45 am] Several courts that have ruled on this rule is about the correctional BILLING CODE 4410–05–P issue since the discontinuance of the management of offenders committed to ICC program have found that 18 U.S.C. the custody of the Attorney General or 4046 does not require the Bureau to the Director of the Bureau of Prisons, DEPARTMENT OF JUSTICE operate a shock incarceration program— and its economic impact is limited to it merely authorizes the Bureau to grant the Bureau’s appropriated funds. Bureau of Prisons certain benefits to those covered by the Unfunded Mandates Reform Act of statute. Palomino v. Federal Bureau of 28 CFR Part 545 Prisons, 408 F. Supp.2d 282 (S.D. Tex. 1995 [BOP Docket No. BOP 1132–F] 2005); Roman v. LaManna, C/A 8:05– This rule will not cause State, local 2806–MBS, 2006 WL 2370319 (D.S.C. and tribal governments, or the private RIN 1120–AB33 Aug. 15, 2006); Serrato v. Clark, C 05– sector, to spend $100,000,000 or more in 03416 CRB, 2005 WL 3481442 (N.D. Cal. any one year, and it will not Inmate Work and Performance Pay Dec. 19, 2005); U.S. v. McLean, CR 03– significantly or uniquely affect small Program: Reduction in Pay for Drug- 30066–AA, 2005 WL 2371990 (D. Ore. governments. We do not need to take and Alcohol-Related Disciplinary Sept. 27, 2005). Indeed, the Bureau has action under the Unfunded Mandates Offenses always had the authority to operate a Reform Act of 1995. AGENCY: program like the ICC, but prior to Bureau of Prisons, Justice. passage of 4046 could not have offered Small Business Regulatory Enforcement ACTION: Final rule. the sentence reduction incentive. Fairness Act of 1996 SUMMARY: The commenters also remarked that In this document, the Bureau Congress appropriated funds for the This rule is not a major rule as of Prisons (Bureau) amends regulations operation of the ICC program. However, defined by § 804 of the Small Business on inmate work and performance pay to regarding appropriations, Congress has Regulatory Enforcement Fairness Act of require that inmates receiving never specifically appropriated funds 1996. This rule will not result in an performance pay who are found through for the ICC program, i.e., there was and annual effect on the economy of the disciplinary process (found in 28 is no line item appropriation. The ICC $100,000,000 or more; a major increase CFR part 541) to have committed a level was merely considered as one of a in costs or prices; or significant adverse 100 or 200 series drug-or alcohol-related variety of programs in the Bureau’s effects on competition, employment, prohibited act will automatically have overall budget needs. investment, productivity, innovation, or their performance pay reduced to For the aforementioned reasons, we on the ability of United States-based maintenance pay level and will be now finalize the removal of the companies to compete with foreign- removed from any assigned work detail regulations in Subpart D of 28 CFR part based companies in domestic and outside the secure perimeter of the 524. export markets. institution. DATES: Executive Order 12866 List of Subjects in 28 CFR Part 524 This rule is effective August 11, 2008. This regulation has been drafted and Prisoners. FOR FURTHER INFORMATION CONTACT: reviewed in accordance with Executive Harley G. Lappin, Sarah Qureshi, Office of General Order 12866, ‘‘Regulatory Planning and Counsel, Bureau of Prisons, phone (202) Director, Bureau of Prisons. Review’’, section 1(b), Principles of 307–2105. Regulation. The Director, Bureau of I Prisons has determined that this rule is Under rulemaking authority vested in SUPPLEMENTARY INFORMATION: In this not a ‘‘significant regulatory action’’ the Attorney General in 5 U.S.C. 552(a) document, the Bureau amends under Executive Order 12866, section and delegated to the Director, Bureau of regulations on inmate work and 3(f), and accordingly this rule has not Prisons, we amend 28 CFR part 524 as performance pay to require that inmates been reviewed by the Office of set forth below. receiving performance pay who are Management and Budget. SUBCHAPTER B—INMATE ADMISSION, found through the disciplinary process CLASSIFICATION, AND TRANSFER (found in 28 CFR part 541) to have Executive Order 13132 committed a level 100 or 200 series This regulation will not have PART 524—CLASSIFICATION OF drug-or alcohol-related prohibited act substantial direct effects on the States, INMATES will automatically have their on the relationship between the national performance pay reduced to government and the States, or on I 1. The authority citation for part 524 maintenance pay level and will be distribution of power and continues to read as follows: removed from any assigned work detail responsibilities among the various Authority: 5 U.S.C. 301; 18 U.S.C. 3521– outside the secure perimeter of the levels of government. Under Executive 3528, 3621, 3622, 3624, 4001, 4042, 4046, institution. Order 13132, this rule does not have 4081, 4082 (Repealed in part as to offenses We published this as a proposed rule sufficient federalism implications for committed on or after November 1, 1987), on November 2, 2006 (71 FR 64505). We which we would prepare a Federalism 5006–5024 (Repealed October 12, 1984 as to received three comments, which we Assessment. offenses committed after that date), 5039; 21 address below. U.S.C. 848; 28 U.S.C. 509, 510. The first commenter questioned Regulatory Flexibility Act whether ‘‘imposing a financial penalty The Director of the Bureau of Prisons, Subpart D—[Removed] on the prisoner saddled with recognized under the Regulatory Flexibility Act (5 disabilities like drug addiction and U.S.C. 605(b)), reviewed this regulation. I 2. Subpart D—Intensive Confinement alcoholism * * * will have the benefit By approving it, the Director certifies Center Program, consisting of §§ 524.30 of strengthening ongoing efforts to target

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an [sic] eliminate the introduction of with this final rule, sanctions for that this rule does not have sufficient drugs or alcohol into Bureau performance pay recipients will remain Federalism implications to warrant the institutions.’’ in effect for one year from the date the preparation of a Federalism Assessment. This commenter is suggesting that the inmate was found to have committed Regulatory Flexibility Act Bureau ease repercussions of the prohibited act. We have altered the committing a prohibited act related to regulation to add this time limit. The Director of the Bureau of Prisons, drugs or alcohol. As the Bureau stated The third commenter suggested that under the Regulatory Flexibility Act (5 in its preamble to the proposed the rule apply not only to performance U.S.C. 605(b)), reviewed this regulation regulation, the additional financial pay inmates but also to those inmates and by approving it certifies that it will penalty will serve to deter recurrence of receiving UNICOR pay. Although the not have a significant economic impact drug- and alcohol-related prohibited Bureau agrees with the commenter, this upon a substantial number of small acts. Increasing the potential regulation relates only to inmates entities for the following reasons: This repercussions of committing new receiving performance pay, and as such, rule pertains to the correctional prohibited acts will discourage inmates will continue to read as proposed. management of offenders committed to from committing them. However, the Bureau is currently the custody of the Attorney General or The first commenter also stated that revising its policy guidance on UNICOR the Director of the Bureau of Prisons, ‘‘prisoners suffering from drug addiction pay to clarify that UNICOR inmates and its economic impact is limited to and/or alcoholism, absent effective and found through the disciplinary process the Bureau’s appropriated funds. continuing treatment availability, will to have committed a level 100 or 200 find themselves forced into series drug-or alcohol-related prohibited Unfunded Mandates Reform Act of unauthorized and criminal behaviors in act will automatically have their pay 1995 order to feed their untreated reduced to a level 4 pay-grade, which is This rule will not result in the disabilities.’’ One of the Bureau’s many the equivalent of maintenance pay for expenditure by State, local and tribal goals is to encourage a sense of performance pay inmates. governments, in the aggregate, or by the accountability among inmates. This Further, the third commenter was private sector, of $100,000,000 or more regulation will help to encourage inmate concerned that the proposed rule did in any one year, and it will not responsibility by actively deterring the not ‘‘place a timetable on the reduction significantly or uniquely affect small commission of drug- and alcohol-related in the inmate’s pay grade * * * [the prohibited acts. Further, the Bureau governments. Therefore, no actions were reduction in pay] could be indefinite.’’ deemed necessary under the provisions offers several drug/alcohol treatment We agree and have added the following programs for qualifying inmates, which of the Unfunded Mandates Reform Act language: ‘‘This reduction to of 1995. should also help to relieve ‘‘untreated maintenance pay level will ordinarily disabilities’’ of such inmates. remain in effect for one year, unless Small Business Regulatory Enforcement The first commenter also suggested otherwise authorized by the Warden.’’ Fairness Act of 1996 that, instead of the proposed rule, a For the foregoing reasons, we now This rule is not a major rule as ‘‘better course appears to be requiring finalize, with minor changes, the defined by § 804 of the Small Business prisoners found to have committed a proposed rule published on November Regulatory Enforcement Fairness Act of 100 or 200 series drug or alcohol related 2, 2006 (71 FR 64505). prohibited act to attend and successfully 1996. This rule will not result in an complete a drug abuse education course Executive Order 12866 annual effect on the economy of provided by 28 CFR 550.54.’’ However, This rule falls within a category of $100,000,000 or more; a major increase under current § 550.54(b), inmates actions that the Office of Management in costs or prices; or significant adverse enrolled in a drug abuse education and Budget (OMB) has determined to effects on competition, employment, course who fail to meet the constitute ‘‘significant regulatory investment, productivity, innovation, or requirements of the course may be held actions’’ under section 3(f) of Executive on the ability of United States-based at the lowest pay grade. Further, Order 12866 and, accordingly, it was companies to compete with foreign- inmates in a residential drug abuse reviewed by OMB. based companies in domestic and treatment program may be expelled, The Bureau has assessed the costs and export markets. immediately and without warning, if benefits of this rule as required by List of Subjects in 28 CFR Part 545 found by a DHO to have used or Executive Order 12866 Section 1(b)(6) possessed alcohol or drugs, or and has made a reasoned determination Prisoners. committed a 100 level prohibited act, that the benefits of this rule justify its Harley G. Lappin, under current 28 CFR 550.56(d). costs. This rule will have the benefit of Director, Bureau of Prisons. The second commenter asked whether strengthening ongoing efforts to target the rule would apply retroactively. The and eliminate the use and/or I Under rulemaking authority vested in answer to this question is that it will not introduction of drugs or alcohol into the Attorney General in 5 U.S.C. 301; apply retroactively to affect inmates Bureau institutions. There will be no 28 U.S.C. 509, 510 and delegated to the who committed drug- and alcohol- new costs associated with this Director, Bureau of Prisons in 28 CFR related prohibited acts prior to the rulemaking. 0.96, we amend 28 CFR part 545 as set effective date of the regulation. After the forth below. Executive Order 13132 effective date of the regulation, any SUBCHAPTER C—INSTITUTIONAL inmate who commits a qualifying This regulation will not have MANAGEMENT offense will have their pay reduced substantial direct effects on the States, according to the regulation. on the relationship between the national PART 545—WORK AND The second commenter also asked government and the States, or on COMPENSATION whether the reduction in pay distribution of power and consequence would be indefinite. Under responsibilities among the various I 1. Amend the authority citation for 28 the Bureau’s policy guidance to staff, levels of government. Therefore, under CFR part 545 continues to read as which will be issued simultaneously Executive Order 13132, we determine follows:

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Authority: 5 U.S.C. 301; 18 U.S.C. 3013, FOR FURTHER INFORMATION CONTACT: agency. For this reason, a regulatory 3571, 3572, 3621, 3622, 3624, 3663, 4001, Carol R. Miaskoff or Kerry E. Leibig, flexibility analysis is not required. 4042, 4081, 4082 (Repealed in part as to Office of Legal Counsel, U.S. Equal Unfunded Mandates Reform Act of 1995 offenses committed on or after November 1, Employment Opportunity Commission 1987), 4126, 5006–5024 (Repealed October This rule will not result in the 12, 1984 as to offenses committed after that at (202) 663–4638 (voice), (202) 663– date), 5039; 28 U.S.C. 509, 510. 7026 (TTY) (This is not a toll-free expenditure by State, local, or tribal telephone number.) This document is governments, in the aggregate, or by the I 2. In § 545.25, add paragraph (e) to also available in the following formats: private sector, of $100 million or more read as follows: Large print, Braille, audio tape, and in any one year, and it will not § 545.25 Eligibility for performance pay. electronic file on computer disk. significantly or uniquely affect small Requests for this document in an governments. Therefore, no actions were * * * * * alternative format should be made to the deemed necessary under the Unfunded (e) Inmates receiving performance pay Mandates Reform Act of 1995. who are found through the disciplinary Office of Communications and process (part 541 of this subchapter) to Legislative Affairs at (202) 663–4191 Paperwork Reduction Act (voice) or (202) 663–4494 (TTY) or to have committed a level 100 or 200 series This regulation contains no drug- or alcohol-related prohibited act the Publications Information Center at 1–800–669–3362. information collection requirements will automatically have their subject to review by the Office of performance pay reduced to SUPPLEMENTARY INFORMATION: Section Management and Budget under the maintenance pay level and will be 508 of the Rehabilitation Act provides Paperwork Reduction Act (44 U.S.C. removed from any assigned work detail that each federal agency must ensure chapter 35). outside the secure perimeter of the that the electronic and information institution. This reduction to technology it develops, procures, List of Subjects in 29 CFR Part 1615 maintenance pay level, and removal maintains, or uses is accessible to Administrative practice and from assigned work detail outside the individuals with disabilities who are procedure, Civil rights, Equal secure perimeter of the institution, will Federal employees or applicants, or employment opportunity, Federal ordinarily remain in effect for one year, members of the public seeking buildings and facilities, Individuals unless otherwise authorized by the information or services from the agency. with disabilities. Warden. Section 508 authorizes individuals to I For the reasons set forth in the [FR Doc. E8–15855 Filed 7–10–08; 8:45 am] file administrative complaints and civil preamble, the EEOC amends 29 CFR BILLING CODE 4410–05–P actions limited to the alleged failure to part 1615 as follows: procure accessible technology. In a Notice of Proposed Rulemaking PART 1615—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS EQUAL EMPLOYMENT OPPORTUNITY (NPRM), the EEOC proposed OF DISABILITY IN PROGRAMS OR COMMISSION amendments to its regulations at 29 CFR part 1615 to address the requirements of ACTIVITIES CONDUCTED BY THE 29 CFR Part 1615 section 508 and to update terminology EQUAL EMPLOYMENT OPPORTUNITY and eliminate certain sections that are COMMISSION AND IN ACCESSIBILITY RIN 3046–AA82 no longer relevant. See 73 Fed. Reg. OF COMMISSION ELECTRONIC AND INFORMATION TECHNOLOGY Enforcement of Nondiscrimination on 9065 (Feb. 19, 2008). The Commission the Basis of Disability in Programs or received no public comments in I 1. Revise the authority citation for 29 Activities Conducted by the Equal response to the NPRM and therefore has CFR part 1615 to read as follows: made no changes to the final rule. Employment Opportunity Commission Authority: 29 U.S.C. 794 and 29 U.S.C. and Accessibility of Commission Regulatory Procedures 794d(f)(2). Electronic and Information Technology Executive Order 12866 I 2. Part 1615 is amended as follows: AGENCY: Equal Employment I A. By revising the heading to read as Opportunity Commission. In promulgating this rulemaking, the set forth above. ACTION: Final rule. Commission has adhered to the I B. By removing the term ‘‘handicap’’ regulatory philosophy and applicable wherever it appears and adding, in its SUMMARY: The Equal Employment principles of regulation set forth in place, the term ‘‘disability’’. Opportunity Commission (EEOC or section 1 of Executive Order 12866, I C. By removing the term ‘‘handicaps’’ Commission) is publishing this final Regulatory Planning and Review. As wherever it appears and adding, in its rule to amend its regulation to establish indicated in the Semi-Annual place, the term ‘‘disabilities’’. that all complaints under section 508 of Regulatory Agenda for Fall 2007, this I D. By removing the term the Rehabilitation Act of 1973, as regulation is not a significant regulation ‘‘nonhandicapped persons’’ wherever it amended (section 508), whether filed by within the meaning of the Executive appears and adding, in its place, the members of the public or EEOC Order. term ‘‘individuals without disabilities’’. employees, will be processed under the I Regulatory Flexibility Act E. By removing the term ‘‘Chairman’’ procedures for section 504 public wherever it appears and adding, in its complaints. This final rule also updates The Commission certifies under 5 place, the term ‘‘Chair’’. the terminology used to describe how U.S.C. Sec. 605(b), enacted by the I F. By removing the term ‘‘EEO EEOC enforces section 504 of the Regulatory Flexibility Act (Pub. L. 96– Director’’ wherever it appears and Rehabilitation Act with respect to its 354), that this rule will not have a adding, in its place, the term ‘‘Director own programs or activities. Finally, the significant economic impact on a of OEO’’. final rule updates or eliminates certain substantial number of small entities, I 3. Section 1615.101 is amended by sections of this regulation that are no because it applies exclusively to a redesignating the current paragraph as longer relevant. federal agency and individuals paragraph (a) and adding a new DATES: Effective August 11, 2008. accessing the services of a Federal paragraph (b) to read as follows:

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§ 1615.101 Purpose. multimedia, and office equipment such data that is comparable to the access to * * * * * as copiers and fax machines. The term and use of the information and data by (b) The purpose of this part is also to does not include any equipment that Commission employees who are not effectuate section 508 of the contains embedded information individuals with disabilities; and Rehabilitation Act, which requires that technology that is used as an integral (2) Individuals with disabilities who when Federal departments and agencies part of the product, but the principal are members of the public seeking develop, procure, maintain, or use function of which is not the acquisition, information or services from the electronic and information technology, storage, manipulation, management, Commission to have access to and use they shall ensure accessibility by movement, control, display, switching, of information and data that is individuals with disabilities who are interchange, transmission, or reception comparable to the access to and use of Federal employees or applicants, or of data or information. For example, the information and data by such members of the public. HVAC (heating, ventilation, and air members of the public who are not I 4. Section 1615.102 is revised to read conditioning) equipment such as individuals with disabilities. as follows: thermostats or temperature control devices, and medical equipment where (b) Alternative means of access when § 1615.102 Application. information technology is integral to its undue burden is imposed.—When This part applies to all programs or operation, are not information development, procurement, activities conducted by the Commission technology. maintenance, or use of electronic and and to its development, procurement, * * * * * information technology that meets the maintenance, and use of electronic and Qualified individual with a disability standards published by the information technology. means: Architectural and Transportation I 5. Section 1615.103 is amended as (1) With respect to any Commission Barriers Compliance Board at 36 CFR follows: program or activity (except part 1194 would impose an undue I A. The definition of ‘‘Complete employment), an individual with a burden, the Commission shall provide complaint’’ is revised. disability who, with or without individuals with disabilities covered by I B. A definition of ‘‘Electronic and modifications or aids required by this this section with the information and information technology’’ is added. part, meets the essential eligibility data involved by an alternative means of I C. The definition heading ‘‘Individual requirements for participation in, or access that allows the individual to use with handicaps’’ is removed and receipt of benefits from, that program or the information and data. ‘‘Individual with a disability’’ is added activity. I 8. Section 1615.140 is revised to read in its place. (2) With respect to employment, a as follows: I D. The definition ‘‘Qualified qualified individual with a disability as individual with a handicap’’ is defined in 29 CFR 1630.2(m), which is § 1615.140 Employment. removed. made applicable to this part by No qualified individual with a I E. A definition of ‘‘Qualified § 1615.140. disability shall, on the basis of individual with a disability’’ is added. * * * * * disability, be subjected to I F. A definition of ‘‘Section 508’’ is Section 508 means section 508 of the added. discrimination in employment under Rehabilitation Act of 1973, Pub. L. 93– any program or activity conducted by The revisions and additions read as 112, Title V, § 508, as added Pub. L. 99– follows: the Commission. The definitions, 506, Title VI, § 603(a), Oct. 21, 1986, 100 requirements, and procedures of section § 1615.103 Definitions. Stat. 1830, and amended Pub. L. 100– 501 of the Rehabilitation Act of 1973 (29 630, Title II, § 206(f), Nov. 7, 1988, 102 * * * * * U.S.C. 791), as established by this Complete complaint means a written Stat. 3312; Pub. L. 102–569, Title V, Commission in 29 CFR part 1614, shall statement that contains the § 509(a), Oct. 29, 1992, 106 Stat. 4430; apply to employment in federally complainant’s name and address and Pub. L. 105–220, Title IV, § 408(b), Aug. conducted programs or activities. As describes the Commission’s actions in 7, 1998, 112 Stat. 1203. noted in 29 CFR 1614.203(b), the sufficient detail to inform the § 1615.110 [Removed] standards used to determine whether Commission of the nature and date of section 501 of the Rehabilitation Act has I 6. Section 1615.110 is removed and the alleged violation of section 504 or been violated in a complaint alleging reserved. non-affirmative action employment section 508. It shall be signed by the I 7. Section 1615.135 is added to read discrimination under part 1614 shall be complainant or by someone authorized as follows: to do so on his or her behalf. Complaints the standards applied under Title I and filed on behalf of classes or third parties § 1615.135 Electronic and information Title V (sections 501 through 504 and shall describe or identify (by name, if technology requirements. 510) of the Americans with Disabilities possible) the alleged victims of (a) Development, procurement, Act of 1990, as amended (42 U.S.C. discrimination. maintenance, or use of electronic and 12101, 12111, 12201) as such sections Electronic and Information information technology.—When relate to employment. These standards technology. Includes information developing, procuring, maintaining, or are set forth in the Commission’s ADA technology and any equipment or using electronic and information regulations at 29 CFR part 1630. If a interconnected system or subsystem of technology, the Commission shall section 501 complaint is filed against equipment that is used in the creation, ensure, unless an undue burden would the Commission in the part 1614 conversion, or duplication of data or be imposed on it, that the electronic and process and it is found to include a information. The term electronic and information technology allows, separate section 508 claim, the part information technology includes, but is regardless of the type of medium of the 1614 process will be used to process the not limited to, telecommunications technology— section 501 claim. The section 508 products (such as telephones), (1) Individuals with disabilities who claim will be processed separately in information kiosks and transaction are Commission employees to have accordance with the procedures set machines, World Wide Web sites, access to and use of information and forth at § 1615.170.

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§ 1615.150 [Amended] decision’’ and should contain specific zones of 500 meter radii around the I 9. Section 1615.150(c) and (d) are objections explaining why the person primary components, two independent removed. believes the initial decision was submerged turret-loading buoys, of factually or legally wrong. * * * Excelerate Energy’s Northeast Gateway I 10. Section 1615.170 is amended as (j) Timely appeals shall be decided by Deepwater Port, Atlantic Ocean, and its follows: accompanying systems, as well as I A. Revise paragraphs (a), (b), and (c). the Chair of the Commission unless the extending the duration of the temporary I B. Revise the first sentences of Commission determines that an appeal security zone around Liquefied Natural paragraphs (d)(1) and (d)(2). raises a policy issue which should be Gas Carrier (LNGC) vessels approaching, I C. Revise the third and fourth addressed by the full Commission. engaging, regasifying, disengaging, sentences of paragraph (i). (1) The Chair will draft a decision mooring, or otherwise conducting I D. Revise paragraph (j). within 30 days of receipt of an appeal I E. Revise the first sentence of and circulate it to the Commission. operations at the deepwater port facility paragraph (k). (2) If a Commissioner believes an in Massachusetts Bay. The purpose of I F. Add a new paragraph (n). appeal raises a policy issue that should these temporary safety zones is to The revisions and additions read as be addressed by the full Commission, he protect vessels and mariners from the follows: or she shall so inform the Chair by potential safety hazards associated with notice in writing within ten calendar deepwater port facilities. All vessels, § 1615.170 Compliance procedures. days of the circulation of the draft with the exception of deepwater port (a) Except as provided in paragraph decision on appeal. support vessels, are prohibited from (b) of this section, this section applies (3) If the Chair does not receive such entering into or moving within either of to all allegations of discrimination on written notice, the decision on appeal the safety zones. The security zone is the basis of disability in programs or shall be issued. necessary to protect LNGC vessels activities conducted by the Commission (4) If the Chair receives written notice calling on the deepwater port from in violation of section 504. This section as described in subparagraph (2), the security threats or other subversive acts. also applies to all complaints alleging a Commission shall resolve the appeal DATES: This rule extends the current violation of the agency’s responsibility through a vote. temporary regulations, which have been to procure electronic and information (k) The Commission shall notify the in effect since May 7, 2008 (USCG– technology under section 508 whether complainant of the results of the appeal 2008–0372) (73 FR 28039), and May 16, filed by members of the public or EEOC within ninety calendar days of the 2008 (USCG–2008–0301) (73 FR 31612), employees or applicants. receipt of the appeal from the through July 17, 2008. (b) The Commission shall process complainant. * * * ADDRESSES: Documents indicated in this complaints alleging violations of section * * * * * preamble as being available in the 504 with respect to employment (n) Civil actions. The remedies, docket are part of docket USCG–2008– according to the procedures established procedures, and rights set forth in 0372 and USCG–2008–0301 by EEOC in 29 CFR part 1614 pursuant sections 505(a)(2) and 505(b) of the respectively, are available online at to section 501 of the Rehabilitation Act Rehabilitation Act, 29 U.S.C. 794a(a)(2) www.regulations.gov. They are also of 1973 (29 U.S.C. 791). With regard to and 794a(b) shall be the remedies, available for inspection or copying at employee claims concerning agency procedures, and rights available to any two locations: The Docket Management procurements made in violation of individual with a disability filing a Facility (M–30), U.S. Department of section 508, the procedures set out in complaint under this section. Transportation, West Building Ground paragraphs (d) through (m) of this Dated: July 2, 2008. Floor, Room W12–140, 1200 New Jersey section shall be used. Avenue, SE., Washington, DC 20590, Naomi C. Earp, (c) Responsibility for implementation between 9 a.m. and 5 p.m., Monday and operation of this section shall be Chair. through Friday, except Federal holidays, vested in the Director, Office of Equal [FR Doc. E8–15764 Filed 7–10–08; 8:45 am] and the U.S. Coast Guard, Sector Opportunity (Director of OEO). BILLING CODE 6570–01–P Boston, 427 Commercial Street, Boston, (d) * * * MA 02109, between 7 a.m. and 3 p.m., (1) * * * Any person who believes Monday through Friday, except Federal that he or she has been subjected to DEPARTMENT OF HOMELAND holidays. discrimination prohibited by this part or SECURITY FOR FURTHER INFORMATION CONTACT: If that the agency’s procurement of you have questions on this temporary electronic and information technology Coast Guard rule, call Chief Petty Officer Eldridge has violated section 508, or authorized McFadden, Waterways Management representative of such person, may file 33 CFR Part 165 Division, U.S. Coast Guard Sector a complaint with the Director of OEO. [Docket Nos. USCG–2008–0372 and USCG– Boston, at 617–223–5160. If you have *** 2008–0301] questions on viewing the docket, call (2) * * * Complaints shall be filed Renee V. Wright, Program Manager, with the Director of OEO within one RIN 1625–AA00 and RIN 1625–AA87 Docket Operations, telephone 202–366– hundred and eighty calendar days of the 9826. alleged acts of discrimination. * * * Safety Zones; Northeast Gateway Deepwater Port, Atlantic Ocean, MA SUPPLEMENTARY INFORMATION: * * * * * and Security Zone; Liquefied Natural Regulatory Information (i) * * * An appeal shall be deemed Gas Carriers, Massachusetts Bay, MA filed on the date it is postmarked, or, in We did not publish a notice of the absence of a postmark, on the date AGENCY: Coast Guard, DHS. proposed rulemaking (NPRM) for this it is received by the Chair at EEOC ACTION: Temporary final rule. regulation. Under 5 U.S.C. 553(b)(B), the headquarters. It should be clearly Coast Guard finds that good cause exists marked ‘‘Appeal of Section 504 SUMMARY: The Coast Guard is extending for not publishing an NPRM. The decision’’ or ‘‘Appeal of Section 508 the duration of two temporary safety deepwater port facilities discussed

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elsewhere in this rule were recently into the Algonquin Gas Transmission Budget has not reviewed it under that completed and present potential safety Pipeline for transfer to shore. Order. hazards to vessels, especially fishing Excelerate recently completed This regulation may have some vessels, operating in the vicinity of installation of the STL buoys and impact on the public in excluding submerged structures associated with associated sub-surface infrastructure, vessels from the areas of these zones. the deepwater port facility. A more which includes, among other things, a This impact, however, is outweighed by robust regulatory scheme to ensure the significant sub-surface sea anchor and the safety and security risks mitigated safety and security of vessels operating mooring system. by the enactment of these zones. in the area, has been developed via In December 2007, the Coast Guard Small Entities separate rulemaking, and is available for established a safety zone around the review and comment at the Web site submerged turret loading buoys while Under the Regulatory Flexibility Act http://www.regulations.gov using a regulations were developed to protect (5 U.S.C. 601–612), we have considered search term of USCG–2007–0087. That the buoys as well as passing vessels. See whether this rule would have a final rulemaking was published in the 73 FR 1274. That temporary safety significant economic impact on a June 17, 2008, Federal Register (73 FR subsequently expired and was re- substantial number of small entities. 34191) and will go into effect on July 17, established by the Coast Guard on May The term ‘‘small entities’’ comprises 2008. This rule extends the existing 15, 2008. See 73 FR 28039. That small businesses, not-for-profit temporary safety zones around the temporary safety zone is set to expire on organizations that are independently deepwater port infrastructure, as well as July 12, 2008. On June 3, 2008, the Coast owned and operated and are not the temporary security zone around Guard published a rule establishing a dominant in their fields, and vessels scheduled to arrive in port, security zone around vessels engaging governmental jurisdictions with currently set to expire on July 12, 2008, in operations in the Northeast Gateway populations of less than 50,000. until July 17, 2008, the effective date of Deepwater Port. See 73 FR 31612. The The Coast Guard certifies under the larger rulemaking. This extension is final rule discussed in docket number 5 U.S.C. 605(b) that this rule will not necessary to protect vessels from the USCG–2007–0087 was ultimately have a significant economic impact on hazards posed by the presence of the published in the Federal Register on a substantial number of small entities. currently uncharted, submerged June 17, 2008. See 73 FR 34191. This rule may affect the following deepwater infrastructure. Failing to Accordingly, it will become effective on entities, some of which may be small delay the effective day of this extension July 17. The temporary zones created by entities: The owners or operators of pending completion of notice and this rule ensure that there is no gap in vessels intending to transit or anchor comment rulemaking is contrary to the authority to ensure safety around the within 500 meters of the STL buoys for public interest to the extent it could submerged deepwater port the deepwater port. The impact on small expose vessels currently operating in infrastructure or around any vessels entities is expected to be minimal the area to the known, but otherwise calling on the port until the final rule’s because vessels wishing to transit the uncharted submerged hazards. In effective date of July 17. Atlantic Ocean in the vicinity of the addition, it would leave the Coast Guard deepwater port may do so, provided Discussion of Rule without the regulatory enforcement tool they remain more than 500 meters from that a security zone provides for vessels The Coast Guard is re-establishing the buoys and any LNGC vessels calling scheduled to call on the deepwater port two temporary safety zones 500 meters on the deepwater port. Vessels wishing in the near future. around the Northeast Gateway to fish in the area may do so in nearby For the same reasons, under 5 U.S.C. Deepwater Port (NEGDWP) STL buoys and adjoining areas when otherwise 553(d)(3), the Coast Guard finds that as described above to protect vessels permitted by applicable fisheries good cause exists for making this rule from submerged hazards and potential regulations. effective less than 30 days after security threats or other subversive If you think that your business, publication in the Federal Register. attacks. All vessels, other than LNGCs organization, or governmental and associated support vessels, are jurisdiction qualifies as a small entity Background and Purpose prohibited from entering into or moving and that this rule would have a On May 14, 2007, the Maritime within the safety zones. The Coast significant economic impact on it, Administration (MARAD), in Guard is also re-establishing a please submit a comment (see accordance with the Deepwater Port Act temporary security zone encompassing ADDRESSES) explaining why you think it of 1974, as amended, issued a license to all waters within a 500-meter radius of qualifies and how and to what degree Excelerate Energy to own, construct, any LNGC, which is carrying LNG while this rule would economically affect it. and operate a natural gas deepwater it is approaching, engaging, regasifying, Assistance for Small Entities port, ‘‘Northeast Gateway.’’ Northeast disengaging, mooring, or otherwise Gateway Deepwater Port (NEGDWP) is conducting operations at the NEGDWP. Under section 213(a) of the Small located in the Atlantic Ocean, This rule extends the effective date of Business Regulatory Enforcement approximately 13 nautical miles south- the safety zones established in 73 FR Fairness Act of 1996 (Pub. L. 104–121), southeast of the City of Gloucester, 28039 and the effective date of the in the NPRM we offered to assist small Massachusetts, in Federal waters. The security zone established in 73 FR entities in understanding the rule so NEGDWP will accommodate the 31612 through July 17, 2008. that they could better evaluate its effects mooring, connecting, and offloading of on them and participate in the two liquefied natural gas carriers Regulatory Evaluation rulemaking process. (LNGCs) at one time. The NEGDWP This rule is not a ‘‘significant Under section 213(a) of the Small operator plans to offload LNGC by regulatory action’’ under section 3(f) of Business Regulatory Enforcement degasifying the LNG on board the Executive Order 12866, Regulatory Fairness Act of 1996 (Pub. L. 104–121), vessels. The regasified natural gas is Planning and Review, and does not we offer to assist small entities in then transferred through two submerged require an assessment of potential costs understanding the rule so that they can turret-loading buoys, via a flexible riser and benefits under section 6(a)(3) of that better evaluate its effects on them and leading to a seabed pipeline that ties Order. The Office of Management and participate in the rulemaking process.

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If this rule will affect your small Civil Justice Reform This rule does not use technical business, organization, or governmental This rule meets applicable standards standards. Therefore, we did not jurisdiction and you have questions in sections 3(a) and 3(b) (2) of Executive consider the use of voluntary consensus concerning its provisions or options for Order 12988, Civil Justice Reform, to standards. compliance, please call Lieutenant minimize litigation, eliminate Environment Merridith Morrison, Assistant Chief, ambiguity, and reduce burden. Waterways Management Division, Coast We have analyzed this rule under Guard Sector Boston, at 617–223–3028. Protection of Children Commandant Instruction M16475.lD Small businesses may send comments We have analyzed this rule under and the Department of Homeland on the actions of Federal employees Executive Order 13045, Protection of Security Management Directive 5100.1, who enforce, or otherwise determine Children from Environmental Health which guide the Coast Guard in compliance with, Federal regulations to Risks and Safety Risks. This rule is not complying with the National the Small Business and Agriculture an economically significant rule and Environmental Policy Act of 1969 Regulatory Enforcement Ombudsman does not create an environmental risk to (NEPA) (42 U.S.C. 4321–4370f), and and the Regional Small Business health or risk to safety that may have concluded, under the Instruction, Regulatory Fairness Boards. The disproportionately affect children. that there are no factors in this case that Ombudsman evaluates these actions would limit the use of a categorical annually and rates each agency’s Indian Tribal Governments exclusion under section 2.B.2 of the responsiveness to small business. If you This rule does not have tribal Instruction. Therefore, this rule is wish to comment on actions by implications under Executive Order categorically excluded, under figure 2– employees of the Coast Guard, call 1– 13175, Consultation and Coordination 1, paragraph (34) (g), of the Instruction, 888–REG–FAIR (1–888–734–3247). The with Indian Tribal Governments, from further environmental Coast Guard will not retaliate against because it does not have a substantial documentation as the rule establishes a small entities that question or complain direct effect on one or more Indian safety zone. about this rule or any policy or action tribes, on the relationship between the A final ‘‘Environmental Analysis of the Coast Guard. Federal Government and Indian tribes, Check List’’ and a final ‘‘Categorical or on the distribution of power and Exclusion Determination’’ will be Collection of Information responsibilities between the Federal available in the docket where indicated This rule calls for no new collection Government and Indian tribes. under ADDRESSES. of information under the Paperwork Energy Effects List of Subjects in 33 CFR Part 165 Reduction Act of 1995 (44 U.S.C. 3501– 3520). We have analyzed this rule under Harbors, Marine safety, Navigation Executive Order 13211, Actions (water), Reporting and recordkeeping Federalism Concerning Regulations That requirements, Security measures, and Significantly Affect Energy Supply, Waterways. A rule has implications for federalism Distribution, or Use. We have under Executive Order 13132, Words of Issuance and Regulatory Text determined that it is not a ‘‘significant Federalism, if it has a substantial direct energy action’’ under that order because For the reasons discussed in the effect on State or local governments and it is not a ‘‘significant regulatory action’’ preamble, the Coast Guard amends 33 would either preempt State law or under Executive Order 12866 and is not CFR part 165 as follows: impose a substantial direct cost of likely to have a significant adverse effect compliance on them. We have analyzed on the supply, distribution, or use of PART 165—REGULATED NAVIGATION this rule under that Order and have energy. The Administrator of the Office AREAS AND LIMITED ACCESS AREAS determined that it does not have of Information and Regulatory Affairs implications for federalism. I has not designated it as a significant 1. The authority citation for part 165 Unfunded Mandates Reform Act energy action. Therefore, it does not continues to read as follows: require a Statement of Energy Effects Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. The Unfunded Mandates Reform Act under Executive Order 13211. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; of 1995 (2 U.S.C. 1531–1538) requires 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Federal agencies to assess the effects of Technical Standards Pub. L. 107–295, 116 Stat. 2064; Department their discretionary regulatory actions. In The National Technology Transfer of Homeland Security Delegation No. 0170.1. particular, the Act addresses actions and Advancement Act (NTTAA) (15 I that may result in the expenditure by a 2. Amend § 165.T01–0372 to add U.S.C. 272 note) directs agencies to use paragraph (d) to read as follows: State, local, or tribal government, in the voluntary consensus standards in their aggregate, or by the private sector of regulatory activities unless the agency § 165.T01–0372 Safety and Security Zones: $100,000,000 or more in any one year. provides Congress, through the Office of Northeast Gateway, Deepwater Port, Though this rule will not result in such Management and Budget, with an Atlantic Ocean, Boston , MA. an expenditure, we do discuss the explanation of why using these * * * * * effects of this rule elsewhere in this standards would be inconsistent with (d) Effective Date. This section is preamble. applicable law or otherwise impractical. effective from July 3, 2008 until July 17, Taking of Private Property Voluntary consensus standards are 2008. technical standards (e.g., specifications I 3. Amend § 165.T01–0301 to revise This rule will not effect a taking of of materials, performance, design, or paragraph (b) to read as follows: private property or otherwise have operation; test methods; sampling taking implications under Executive procedures; and related management § 165.T01–0301 Security Zone: Liquefied Order 12630, Governmental Actions and systems practices) that are developed or Natural Gas Carrier Transit and Anchorage Interference with Constitutionally adopted by voluntary consensus Operations, Massachusetts Bay, MA. Protected Property Rights. standards bodies. * * * * *

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(b) Effective Date. This section is p.m., Monday through Friday, excluding person seeking to make such a effective from July 3, 2008 until July 17, legal holidays. The telephone number demonstration to EPA should submit a 2008. for the Public Reading Room is (202) Petition for Reconsideration to the * * * * * 566–1744, and the telephone number for Office of the Administrator, U.S. EPA, the Air Docket is (202) 566–1742. Room 3000, Ariel Rios Building, 1200 Dated: July 3, 2008. FOR FURTHER INFORMATION CONTACT: Mr. Pennsylvania Ave., NW., Washington, Gail P. Kulisch, Warren Johnson, Sector Policies and DC 20460, with a copy to both the Captain, U.S. Coast Guard, Captain of the Programs Division, Office of Air Quality person listed in the preceding FOR Port, Boston. Planning and Standards (E143–03), FURTHER INFORMATION CONTACT section [FR Doc. E8–15947 Filed 7–10–08; 8:45 am] Environmental Protection Agency, and the Director of the Air and BILLING CODE 4910–15–P Research Triangle Park, NC 27711, Radiation Law Office, Office of General telephone number (919) 541–5124, Counsel (Mail Code 2344–A), U.S. EPA, electronic mail address 1200 Pennsylvania Ave., NW., ENVIRONMENTAL PROTECTION [email protected]. Washington, DC 20004. AGENCY SUPPLEMENTARY INFORMATION: On April I. What action is EPA taking? 40 CFR Part 63 1, 2008, EPA published a direct final In today’s final rule, EPA is adopting rule and parallel proposal for ‘‘National the regulatory revisions to 40 CFR [EPA–HQ–OAR–2005–0155; FRL–8691–2] Perchloroethylene Air Emission 63.320(d) and (e); 63.323(a)(1), (a)(1)(ii), RIN 2060–AO52 Standards for Dry Cleaning’’ (73 FR (b) and (c); and 63.324(d)(5) and (6), 17252). We stated in the direct final rule including some modifications from National Perchloroethylene Air and parallel proposal that if we received what we proposed to address the Emission Standards for Dry Cleaning adverse comments by May 16, 2008, the comments received. We received no Facilities direct final rule would not take effect adverse comments on the proposed and we would publish a timely AGENCY: Environmental Protection revisions to 40 CFR 63.323(a)(1)’s withdrawal in the Federal Register. We Agency (EPA). introductory text, 63.323(a)(1)(ii), or received adverse comments on this 63.324(d)(5)–(6), and these revisions are ACTION: Final rule; withdrawal; revision. direct final rule and are withdrawing it. being adopted exactly as proposed. SUMMARY: EPA published a direct final As stated in the direct final rule and Similarly, we received no adverse rule and parallel proposal on April 1, parallel proposal, we will not institute comments on our proposed amendment 2008, to amend revisions to the national a second comment period on this action. to § 63.320(d) adding cross-references to Concurrent with the direct final rule, perchloroethylene air emission §§ 63.322(o)(3) and 63.322(o)(5)(i), or on we published a separate notice of standards for dry cleaning facilities our proposed amendment to § 63.320(e) proposed rulemaking, to provide for the which EPA promulgated on July 27, adding a cross-reference to contingency of adverse comments on 2006. Because we received adverse § 63.322(o)(3); consequently, those the direct final rule (73 FR 17292). We comment during the comment period on additions are also being adopted. are now issuing a final rule based on the the direct final rule and parallel However, one commenter, the State of notice of proposed rulemaking and on proposal, we are withdrawing the direct Delaware, submitted a comment on the comments received. April 1, 2008 direct final rule and final rule and taking final action on the Judicial Review. Under section parallel proposal objecting to the proposed rule to reflect our response to 307(b)(1) of the Clean Air Act (CAA), removal from § 63.320(d) and (e) of the comments. judicial review of the final rule is cross-references to § 63.322(o)(4), DATES: This final rule revision is available only by filing a petition for claiming that the removal of these cross- effective July 11, 2008; the withdrawal review in the U.S. Court of Appeals for references would have exempted of the direct final rule published on the District of Columbia Circuit by existing dry-to-dry machine systems April 1, 2008, at 73 FR 17252 is effective September 9, 2008. Under CAA section from certain requirements intended to July 11, 2008. 307(d)(7)(B), only an objection to the prevent the new installation of any ADDRESSES: EPA has established a final rule that was raised with perchloroethylene (perc) machine in a docket for this action under Docket ID reasonable specificity during the period building with a residence. Specifically No. EPA–HQ–OAR–2005–0155. All for public comment can be raised during that removal of these cross-references documents in the docket are listed on judicial review. Moreover, under CAA would allow owners and operators of the http://www.regulations.gov Web section 307(b)(2), any requirements dry cleaning systems installed after site. Although listed in the index, some established by the final action may not December 21, 2005 to relocate old, high- information is not publicly available be challenged separately in any civil or emitting dry-to-dry machine systems (e.g., Confidential Business Information criminal proceedings brought by EPA to into residential buildings and (CBI) or other information whose enforce these requirements. significantly increase the residents’ disclosure is restricted by statute). Section 307(d)(7)(B) of the CAA exposure to perc. Delaware Certain other material, such as further provides a mechanism for EPA recommended that our amendments to copyrighted material, will be publicly to convene a proceeding for § 63.320(d) and (e) be revised to clarify available only in hard copy form. reconsideration, ‘‘if the person raising that existing dry-to-dry machine Publicly available docket materials are the objection can demonstrate to the systems ‘‘remain subject to’’ the available either electronically through Administrator that it was impracticable requirements of § 63.322(o)(4). http://www.regulations.gov or in hard to raise such objection within [the We agree with the State of Delaware copy at the EPA Docket Center, Docket period for public comment] or if the that our clarification would have had ID No. EPA–HQ–OAR–2005–0155, grounds for such objection arose after the unintended impact of revising Public Reading Room, EPA West, Room the period for public comment (but requirements in the July 27, 2006 final 3334, 1301 Constitution Ave., NW., within the time specified for judicial rule. As we explained in the April 1, Washington, DC. The Public Reading review) and if such objection is of 2008 direct final rule (73 FR 17254), we Room is open from 8:30 a.m. to 4:30 central relevance to the rule.’’ Any believed that the cross-reference in

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§ 63.320(d) and (e) to the new source that dry cleaning machines are being in § 63.322(o)(2). Therefore, today’s final requirements of § 63.322(o)(4) was operated consistent with good air rule adopts the proposed amendments inadvertent, and we were concerned pollution control practices. Delaware to § 63.323(b) and (c) that remove the that some might interpret it to subject claimed that eliminating monitoring cross-references to § 63.322(o)(2). small existing sources already located in requirements for these new area sources One other commenter raised issues residential buildings to an immediate would increase perc emissions and that were not the subject of the April 1, prohibition of perc emissions or an early consequently raise cancer risks, and that 2008, direct final rule. Specifically, the retirement of perc-emitting machines. the monitoring requirements adopted in St. Louis County Air Pollution Control Rather, under our rules, such small the July 27, 2006 rule impose minimal Program, while not intending to existing systems are subject to the same financial burden on dry cleaners. adversely affect the rulemaking, asked December 21, 2020, phase-out date that Delaware recommended that EPA (along with the Missouri Department of applies to all other existing co- therefore not eliminate the cross- Natural Resources) for an additional residential systems that are not eligible reference to § 63.322(o)(2), or, if EPA clarification that the temperature for the partial exemptions of § 63.320(d) does eliminate it, to replace it with an difference monitoring requirements or (e). (73 FR 17254.) alternative means to demonstrate found in § 63.323(a)(2), which were However, Delaware’s comments compliant operations, such as requiring addressed neither by the July 27, 2006, pointed out to us that § 63.322(o)(4) desorption or carbon replacement in final rule nor by the April 1, 2008, applies not only to mint-new machine accordance with manufacturers’ direct final rule, were intended to apply systems that are constructed, re- instructions or at least weekly only to transfer units. constructed and installed in residential (whichever is more stringent), or While neither the April 1, 2008, direct buildings, but also by its terms prohibits incorporating a monitoring strategy final rule nor the July 2006 rule ‘‘relocation of a used machine’’ (i.e., similar to that found in rules applicable revisions to the 1993 rule addressed new installation of an existing for wetting agents and foam blankets section 63.323(a)(2), we did erroneously machine). Therefore, we agree with that moves toward progressively less reference § 63.323(a)(2)(ii) in the Delaware that it is inappropriate to frequent monitoring until breakthrough preamble to the April 1, 2008, direct remove the cross-references for occurs. final rule in stating: ‘‘In addition, due to § 63.320(d) and (e). This final rule will As we explained in the direct final the July 27, 2006, revisions to 40 CFR continue to include cross-references to rule, the July 27, 2006, rule’s 63.323(a), one could interpret that using § 63.322(o)(4), in order to avoid application of the § 63.323(b) and (c) the monitoring method in 40 CFR suggesting that any existing perc- monitoring requirements for new area 63.323(a)(2)(ii) is only an option when emitting machines, no matter what size, sources subject to § 63.322(o)(2) was due the dry cleaning machine is not may be newly installed in residential to our failure to correct cross-references equipped with refrigeration system buildings. As we stated in the July 27, in the final rule when the proposed pressure gauges.’’ (73 FR at 17254.) 2006, final rule, the requirement to requirements for new area sources Therefore, we would like to clarify for eliminate perc emissions from dry moved from § 63.322(o)(3) into the St. Louis County Air Pollution cleaning systems installed after § 63.322(o)(2). (73 FR 17253–54.) It was Control Program that the reference to 40 December 21, 2005, ‘‘applies to any not our intention to impose these CFR 63.323(a)(2)(ii) should have been a newly installed dry cleaning system that obligations on new area sources, nor reference to 40 CFR 63.323(a)(1)(ii) is located in a building with a residence, had we proposed to impose them. (73 which was the subject of the direct final regardless of whether the dry cleaning FR 17253–54.) We continue to believe rulemaking. system is a newly fabricated system or that, as a result, the July 27, 2006, rule’s one that is relocated from another promulgation of those requirements, II. Statutory and Executive Order facility.’’ (71 FR at 42728.) merely by the erroneous cross- Reviews Two commenters submitted references to § 63.322(o)(2) in A. Executive Order 12866: Regulatory objections that relate to our proposal to § 63.323(b) and (c), is not justified, and Planning and Review amend § 63.323(b) and (c) by deleting that the cross-references must be the July 27, 2006, rule’s cross-references removed for that reason. This action is not a ‘‘significant to § 63.322(o)(2). These amendments Furthermore, we disagree with the regulatory action’’ under the terms of addressed the rule’s inadvertently assertions that removing the cross- Executive Order (EO) 12866 (58 FR promulgated requirement that new area reference to § 63.322(o)(2) from 51735, October 4, 1993) and is therefore sources conduct specific types of § 63.323(b) and (c) results in there being not subject to review under the EO. monitoring when carbon adsorbers are no performance standard for machines B. Paperwork Reduction Act used. The first commenter, a private subject to the new area source citizen, asserted that some type of requirements. By its terms, This final action does not impose any performance standard is needed for new § 63.322(o)(2) requires such area sources new information collection burden. ‘‘4th generation’’ dry cleaning machines, to route the air-perc gas-vapor stream Certain technical and editorial and implied that the result of EPA’s contained within each dry cleaning corrections that EPA is making to the proposed amendments is that there machine through a refrigerated National Perchloroethylene Air would not be one. The State of Delaware condenser and to pass the stream from Emission Standards for Dry Cleaning submitted similar, but more detailed, inside the machine drum through a non- Facilities imposes no new burdens. comments on this proposed vented carbon adsorber or equivalent However, the Office of Management and amendment, arguing that by proposing control device immediately before the Budget (OMB) has previously approved to eliminate monitoring requirements door of the machine is opened. The the information collection requirements associated with secondary carbon carbon adsorber must be desorbed in contained in the existing regulations 40 adsorbers located at new area sources, accordance with manufacturers’ CFR part 63, subpart M under the neither owners/operators nor State instructions. We continue to believe that provisions of the Paperwork Reduction regulatory agencies will have this is sufficient to ensure that new area Act, 44 U.S.C. 3501 et seq. and has information necessary to demonstrate source owners and operators conduct assigned OMB control number 2060– that control devices are effective and the work practices required by the rule 0234. The OMB control numbers for

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EPA’s regulations in 40 CFR are listed inconsistent with applicable law. responsibilities among the various in 40 CFR part 9. Moreover, section 205 allows the EPA to levels of government, as specified in EO adopt an alternative other than the least- 13132. The amendments provide C. Regulatory Flexibility Act costly, most cost effective, or least- clarification and correct typographical The Regulatory Flexibility Act (RFA) burdensome alternative if the errors. These changes do not modify generally requires an agency to prepare Administrator publishes with the final existing or create new responsibilities a regulatory flexibility analysis of any rule an explanation why that alternative among EPA Regional Offices, States, or rule subject to notice and comment was not adopted. Before EPA establishes local enforcement agencies. Thus, rulemaking requirements under the any regulatory requirements that may Executive Order 13132 does not apply Administrative Procedure Act or any significantly or uniquely affect small to this final rule. other statute unless the Agency certifies governments, including tribal that the rule will not have a significant governments, it must have developed F. Executive Order 13175: Consultation economic impact on a substantial under section 203 of the UMRA a small and Coordination With Indian Tribal number of small entities. Small entities government agency plan. The plan must Governments include small businesses, small provide for notifying potentially Executive Order (EO) 13175 (65 FR organizations, and small governmental affected small governments, enabling 67249, November 9, 2000) requires EPA jurisdictions. officials of affected small governments to develop an accountable process to For purposes of assessing the impacts to have meaningful and timely input in ensure ‘‘meaningful and timely input by of this final rule on small entities, small the development of EPA regulatory tribal officials in the development of entity is defined as: (1) A small business proposals with significant Federal regulatory policies that have tribal as defined by the Small Business intergovernmental mandates, and implications.’’ This final rule does not Administration’s (SBA) regulations at 13 informing, educating, and advising have tribal implications, as specified in CFR 121.201; (2) a small governmental small governments on compliance with EO 13175. This rule will not have jurisdiction that is a government of a the regulatory requirements. substantial direct effects on tribal city, county, town, school district or This rule contains no Federal governments, on the relationship special district with a population of less mandates (under the regulatory between the Federal Government and than 50,000; and (3) a small provisions of Title II of the UMRA) for Indian tribes, or on the distribution of organization that is any not-for-profit State, local, or tribal governments or the power and responsibilities between the enterprise which is independently private sector. These final rule Federal Government and Indian tribes, owned and operated and is not amendments clarify certain provisions as specified in EO 13175. Thus, EO dominant in its field. and correct typographical errors in the 13175 does not apply to this rule. After considering the economic rule text for a rule EPA determined not impacts of this rule on small entities, I to include a Federal mandate that may G. Executive Order 13045: Protection of certify that this action will not have a result in an estimated cost of $100 Children From Environmental Health significant economic impact on a million or more (69 FR 5061, February and Safety Risks substantial number of small entities. 3, 2004). These clarifications do not EPA interprets EO 13045 (62 FR Since the amendments in this final rule change the level or cost of the standard. 19885, April 23, 1997) as applying only are simply making technical corrections In addition, EPA has determined that to those regulatory actions that concern and clarifications to the existing rule this final rule contains no regulatory health or safety risks, such that the requirements, this final rule will not requirements that might significantly or analysis required under section 5–501 of impose any new requirements on small uniquely affect small governments the EO has the potential to influence the entities because the burden is small and the regulation. This final rule is not subject D. Unfunded Mandates Reform Act regulation does not apply to small to EO 13045 because it does not governments. Therefore, this final rule establish an environmental standard Title II of the Unfunded Mandates is not subject to the requirements of intended to mitigate health or safety Reform Act of 1995 (UMRA), Public section 203 of the UMRA. risks. Law 104–4, establishes requirements for Federal agencies to assess the effects of E. Executive Order 13132: Federalism H. Executive Order 13211: Energy their regulatory actions on State, local, Executive Order (EO) 13132 (64 FR Effects and tribal governments and the private 43255, August 10, 1999) requires the This final rule is not subject to sector. Under section 202 of the UMRA, EPA to develop an accountable process Executive Order (EO) 13211, ‘‘Actions EPA generally must prepare a written to ensure ‘‘meaningful and timely input that Significantly Affect Energy Supply, statement, including a cost-benefit by State and local officials in the Distribution, or Use’’ (66 FR 28355, May analysis, for proposed and final rules development of regulatory policies that 22, 2001) because it is not a significant with ‘‘Federal mandates’’ that may have federalism implications.’’ ‘‘Policies regulatory action under EO 12866. result in expenditures by State, local, that have federalism implications’’ is and tribal governments, in the aggregate, defined in the EO to include regulations I. National Technology Transfer and or by the private sector, of $100 million that have substantial direct effects on Advancement Act or more in any 1 year. Before the States, on the relationship between Section 12(d) of the National promulgating an EPA rule for which a the national government and the States, Technology Transfer and Advancement written statement is needed, section 205 or on the distribution of power and Act of 1995 (NTTAA), Public Law 104– of the UMRA generally requires EPA to responsibilities among the various 113, 12(d) (15 U.S.C. 272 note), directs identify and consider a reasonable levels of government.’’ the EPA to use voluntary consensus number of regulatory alternatives and This final rule does not have standards in its regulatory activities adopt the least-costly, most cost- federalism implications. It will not have unless to do so would be inconsistent effective, or least burdensome substantial direct effects on the States, with applicable law or otherwise alternative that achieves the objectives on the relationship between the national impractical. Voluntary consensus of the rule. The provisions of section government and the States, or on the standards are technical standards (e.g., 205 do not apply when they are distribution of power and materials specifications, test methods,

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sampling procedures, and business List of Subjects in 40 CFR Part 63 Consumption is determined according practices) that are developed or adopted to § 63.323(d). Environmental protection, by voluntary consensus standards Administrative practice and procedure, * * * * * bodies. The NTTAA directs the EPA to Air pollution control, Hazardous I 3. Section 63.323 is amended as provide Congress, through OMB, substances, Intergovernmental relations, follows: explanations when the Agency decides I Reporting and recordkeeping a. By revising paragraphs (a)(1) not to use available and applicable requirements. introductory text and (a)(1)(ii). voluntary consensus standards. I b. By revising paragraph (b) No new standard requirements are Dated: July 7, 2008. introductory text. specified in this final rule. Therefore, Stephen L. Johnson, I c. By revising paragraph (c) the EPA is not adopting any voluntary Administrator. introductory text. consensus standards in the final rule. I For the reasons set out in the § 63.323 Test methods and monitoring. J. Executive Order 12898: Federal preamble, title 40, chapter I, part 63, of (a) * * * Actions To Address Environmental the Code of Federal Regulations is (1) The owner or operator shall Justice in Minority Populations and amended as follows: monitor on a weekly basis the Low-Income Populations parameters in either paragraph (a)(1)(i) PART 63—[AMENDED] or (ii) of this section. Executive Order 12898 (59 FR 7629, I 1. The authority citation for part 63 * * * * * February 16, 1994) establishes Federal continues to read as follows: (ii) The temperature of the air- executive policy on environmental perchloroethylene gas-vapor stream on justice. Its main provision directs Authority: 42 U.S.C. 7401, et seq. the outlet side of the refrigerated Federal agencies, to the greatest extent Subpart M—[Amended] condenser on a dry-to-dry machine, practicable and permitted by law, to dryer, or reclaimer with a temperature make environmental justice part of their I 2. Section 63.320 is amended by sensor to determine if it is equal to or mission by identifying and addressing, ° ° revising paragraphs (d) and (e) to read less than 7.2 C (45 F) before the end of as appropriate, disproportionately high as follows: the cool-down or drying cycle while the and adverse human health or gas-vapor stream is flowing through the environmental effects of their programs, § 63.320 Applicability. condenser. The temperature sensor shall policies, and activities on minority * * * * * be used according to the manufacturer’s populations and low-income (d) Each existing dry-to-dry machine instructions and shall be designed to populations in the United States. ° ° and its ancillary equipment located in a measure a temperature of 7.2 C (45 F) ± ° ± ° EPA has determined that this final dry cleaning facility that includes only to an accuracy of 1.1 C ( 2 F). rule will not have disproportionately dry-to-dry machines, and each existing * * * * * high and adverse human health or transfer machine system and its (b) When a carbon adsorber is used to environmental effects on minority or ancillary equipment, and each new comply with § 63.322(a)(2) or exhaust is low-income populations because it does transfer machine system and its passed through a carbon adsorber not affect the level of protection ancillary equipment installed between immediately upon machine door provided to human health or the December 9, 1991, and September 22, opening to comply with § 63.322(b)(3), environment. These final rule 1993, as well as each existing dry-to-dry the owner or operator shall measure the amendments do not relax the control machine and its ancillary equipment, concentration of PCE in the exhaust of measures on sources regulated by the located in a dry cleaning facility that the carbon adsorber weekly with a rule and, therefore, will not cause includes both transfer machine colorimetric detector tube or PCE gas emissions increases from these sources. system(s) and dry-to-dry machine(s) is analyzer. The measurement shall be taken while the dry cleaning machine is K. Congressional Review Act exempt from §§ 63.322, 63.323, and 63.324, except §§ 63.322(c), (d), (i), (j), venting to that carbon adsorber at the The Congressional Review Act, 5 (k), (l), (m), (o)(1), (o)(3), (o)(4) and end of the last dry cleaning cycle prior U.S.C. 801 et seq., as added by the Small (o)(5)(i); 63.323(d); and 63.324(a), (b), to desorption of that carbon adsorber or Business Regulatory Enforcement (d)(1), (d)(2), (d)(3), (d)(4), and (e) if the removal of the activated carbon to Fairness Act of 1996, generally provides total PCE consumption of the dry determine that the PCE concentration in that before a rule may take effect, the cleaning facility is less than 530 liters the exhaust is equal to or less than 100 agency promulgating the rule must (140 gallons) per year. Consumption is parts per million by volume. The owner submit a rule report, which includes a determined according to § 63.323(d). or operator shall: copy of the rule, to each House of the (e) Each existing transfer machine * * * * * Congress and to the Comptroller General system and its ancillary equipment, and (c) If the air-PCE gas vapor stream is of the United States. EPA will submit a each new transfer machine system and passed through a carbon adsorber prior report containing this final rule and its ancillary equipment installed to machine door opening to comply other required information to the U.S. between December 9, 1991, and with § 63.322(b)(3), the owner or Senate, the U.S. House of September 22, 1993, located in a dry operator of an affected facility shall Representatives, and the Comptroller cleaning facility that includes only measure the concentration of PCE in the General of the United States prior to transfer machine system(s), is exempt dry cleaning machine drum at the end publication of this final rule in the from §§ 63.322, 63.323, and 63.324, of the dry cleaning cycle weekly with a Federal Register. A major rule cannot except §§ 63.322(c), (d), (i), (j), (k), (l), colorimetric detector tube or PCE gas take effect until 60 days after it is (m), (o)(1), (o)(3) and (o)(4); 63.323(d); analyzer to determine that the PCE published in the Federal Register. This and 63.324(a), (b), (d)(1), (d)(2), (d)(3), concentration is equal to or less than final rule is not a ‘‘major rule’’ as (d)(4), and (e) if the PCE consumption 300 parts per million by volume. The defined by 5 U.S.C. 804(2). This rule of the dry cleaning facility is less than owner or operator shall: will be effective July 11, 2008. 760 liters (200 gallons) per year. * * * * *

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I 4. Section 63.324 is amended by comments received, go to http:// improve existing rail infrastructure in revising paragraphs (d)(5) and (d)(6) to www.regulations.gov at any time or to an effort to mitigate the perceived read as follows: Room W–12–140, West Building negative effects of rail traffic on safety Ground Floor at the DOT’s new in general, motor vehicle traffic flow, § 63.324 Reporting and recordkeeping headquarters at 1200 New Jersey economic development, or the overall requirements. Avenue, SE., Washington, DC 20590 quality of life of the community. * * * * * between 9 a.m. and 5 p.m., Monday II. SAFETEA–LU (d) * * * through Friday, except Federal holidays. (5) The date and monitoring results FOR FURTHER INFORMATION CONTACT: John On August 10, 2005, President George (temperature sensor or pressure gauge) A. Winkle, Transportation Industry W. Bush signed SAFETEA–LU, (Pub. L. as specified in § 63.323 if a refrigerated Analyst, Office of Railroad 109–59) into law. Section 9002 of condenser is used to comply with Development, Federal Railroad SAFETEA–LU amended chapter 201 of § 63.322(a), (b), or (o); and Administration, 1200 New Jersey Title 49 of the United States Code by (6) The date and monitoring results, Avenue, SE., Mail Stop 13, Washington, adding a new § 20154, which establishes as specified in § 63.323, if a carbon DC 20590 ([email protected] or 202– the basic elements of a funding program adsorber is used to comply with 493–6067); or Elizabeth A. Sorrells, for capital grants for local rail line § 63.322(a)(2), or (b)(3). Attorney-Advisor, Office of Chief relocation and improvement projects. * * * * * Counsel, Federal Railroad Subsection (b) of the new § 20154 [FR Doc. E8–15872 Filed 7–10–08; 8:45 am] Administration, 1200 New Jersey mandates that the Secretary issue BILLING CODE 6560–50–P Avenue, SE., Mail Stop 10, Washington, ‘‘temporary regulations’’ to implement DC 20590 ([email protected] or the capital grants program and then 202–493–6057). issue final regulations by October 1, 2006. This final rule carries out that DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: statutory mandate. Federal Railroad Administration I. Background In order to be eligible for a grant for a relocation or improvement A. Statutory Authority 49 CFR Part 262 construction project, the project must On January 17, 2007, FRA published mitigate the adverse effects of rail traffic [Docket No. FRA 2005–23774, Notice No. a notice of proposed rulemaking on safety, motor vehicle traffic flow, 2] (NPRM) proposing to add part 262 to community quality of life, including RIN 2130–AB74 Title 49, Code of Federal Regulations. noise mitigation, or economic Part 262 would carry out the statutory development, or involve a lateral or Implementation of Program for Capital mandate of section 9002 of SAFETEA– vertical relocation of any portion of the Grants for Rail Line Relocation and LU which amends chapter 201 of Title rail line, presumably to reduce the Improvement Projects 49 of the United States Code by adding number of grade crossings and/or serve a new section 20154. Section 20154 to mitigate noise, visual issues, or other AGENCY: Federal Railroad authorizes—but does not appropriate— externality that negatively impacts a Administration (FRA), Department of $350,000,000 per year for each of the community. A more detailed Transportation (DOT). fiscal years (FY) 2006 through 2009 for explanation of the rule text is provided ACTION: Final rule. the purpose of funding a grant program below in the Section-by-Section to provide financial assistance for local Analysis. SUMMARY: Section 9002 of the Safe, rail line relocation and improvement In section 20154, Congress Accountable, Flexible, Efficient projects. The statute requires the authorized, but did not appropriate, Transportation Equity Act: A Legacy for Secretary to implement the grant $350 million per year for each fiscal Users (SAFETEA–LU) (Pub. L. 109–59, program through regulations. The year 2006 through 2009. At least half of August 10, 2005) amends chapter 201 of Secretary has delegated this the funds awarded under this program Title 49 of the United States Code by responsibility to FRA. The language and shall be provided as grant awards of not adding section 20154. Section 20154 provisions of Part 262 as reflected in the more than $20 million each. A State or authorizes—but does not appropriate— NPRM and this final rule closely track other eligible entity will be required to $350,000,000 per year for each of the the language set out in section 20154. pay at least 10 percent of the shared fiscal years (FY) 2006 through 2009 for costs of the project, whether in the form the purpose of funding a grant program B. Program Purpose of a contribution of real property or to provide financial assistance for local As noted in the background section of tangible personal property, contribution rail line relocation and improvement the NPRM, state and local governments of employee services, or previous costs projects. Section 20154 directs the are looking for ways to eliminate the spent on the project before the Secretary of Transportation (Secretary) problems created by the presence of application was filed. The State or FRA to issue regulations implementing this railroad infrastructure in many may also seek financial contributions grant program, and the Secretary has communities, infrastructure that at one from private entities benefiting from the delegated this responsibility to FRA. time was critical to the development of rail line relocation or improvement This final rule establishes a regulation the community but which now presents project. intended to carry out that statutory problems as well as benefits. Problems In section 20154, Congress directed mandate. As of the publication of this that have been identified range from FRA to issue ‘‘temporary regulations’’ final rule, Congress did not appropriate community separation to blocked grade by April 1, 2006. As noted in the NPRM, any funding for the program for FY 2006 crossings to limits on economic under the Administrative Procedure Act or FY 2007 but did appropriate development. Many times, the solution and Executive Orders governing $20,040,200 for fiscal year 2008. is to relocate or raise track vertically or rulemaking, FRA could comply with DATES: August 11, 2008. move the track to an area that is better Congress’s deadline only by issuing a ADDRESSES: For access to the docket to suited for it. In addition to relocation direct final rule or an interim final rule read background documents or projects, many communities are eager to by April 1, 2006. However, the FRA

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cannot use either a direct final rule or can be found in the relevant Section-by- project. Decisions regarding the an interim final rule because the legal Section portion of this preamble. advisability of the program were made requirements for using those All of the comments submitted were by the Congress in enacting section instruments cannot be satisfied. The in favor of the capital grants program. 20154. Many of the commenters had specific case law is clear that a statutory Section 262.1 Purpose deadline does not suffice to justify projects that they were interested in dispensing with notice and comment obtaining funding for under this This section, which has not changed prior to issuing a rule on grounds that program. A few commenters expressed from that which was proposed in the notice and comment are ‘‘impracticable, concerns that the definition of NPRM, merely states that the purpose of unnecessary, or contrary to the public allowable/reimbursable costs was too this final rule is to carry out the interest’’ under section 553(b)(3)(B) of narrowly drawn and needed to include Congressional mandate in § 9002 of the Administrative Procedure Act. reimbursement for environmental SAFETEA–LU by promulgating Because as of the date of the NPRM no assessments that may need to be regulations which implement the grant funding had been appropriated for the performed or have already been financial assistance program for local program and no projects could be performed prior to the application for rail relocation and improvement funded at that time, FRA concluded that grant funds. Several of the commenters projects set forth in new § 20154 of Title the purposes of SAFETEA–LU could observed that environmental costs 49 of the United States Code. No best be achieved by proceeding with an constitute the great majority of the comments were received on this section. NPRM in lieu of an interim final rule. project costs, particularly in the early Section 262.3 Definitions Proceeding this way also satisfies the stages. Several other commenters wanted to add specific items as One commenter (New York DOT) requirements of the Administrative suggested adding a definition for the Procedure Act and allows for greater allowable/reimbursable costs. Others wanted specific assurances that a term ‘‘project’’ and specifically public participation in the rulemaking mentioned a highway bridge over rail process. particular project fit within the parameters and eligibility criteria set out tracks as a potentially eligible activity. C. Discussion of Comments in the NPRM. The commenter expressed concern that A few commenters had concerns such a bridge could constitute a grade FRA received approximately 28 regarding the potential distribution of separation and add to the safety and written comments in response to the any grant monies, wanting to ensure efficiency of rail service but might be NPRM, including comments from state that rural areas were not overlooked in excluded because the rail line would and local governments, the railroad the application and selection process. not be physically touched. While FRA industry and trade organizations, as Some commenters wanted changes or makes no comment herein upon the well as members of the general public. adjustments to the definitions section. eligibility or ineligibility of specific Specifically, comments were received Finally, a few commenters requested projects proposed by commenters, the from the following organizations and that FRA hold a public hearing on the agency believes that the current individuals: Missouri Department of NPRM. Given the lack of substantial definition of ‘‘project’’ under subsection Transportation, Charlotte (NC) Area controversy raised in any of the 262.3 clearly reflects the mandate of Transit System, South Dakota comments and the effort and expense Congress to use the capital grant funds Department of Transportation, City of involved in holding a public hearing, for local rail line relocation or Marceline, MO, Sacramento (CA) FRA concluded that a public hearing improvement projects. The current Regional Transit District Capitol was not necessary or justifiable. None of definitions of the terms ‘‘project’’ and Corridor Joint Powers Authority (CA), the requests for a hearing indicated how ‘‘improvement’’ along with the Gateway Rural Improvement Pilot a hearing would assist in evaluating the eligibility standards detailed in Association, Inc. (VT), International Air NPRM. In addition, some of the hearing subsection 262.7 provide an adequate Rail Organization, City of Sacramento requests appeared more focused on identification of eligible projects. The (CA), City of Greenville (NC), States for increasing the visibility of the capital agency also notes that the term Passenger Rail Coalition, North Carolina grants for rail line relocation and ‘‘improvement’’ encompasses rail Department of Transportation, County improvement program rather than infrastructure and not just railroad lines. of Sacramento Department of addressing specific issues with the One commenter (Missouri DOT) Transportation, American Public NPRM. wants to add language reading ‘‘any Transportation Association, Board of combination thereof’’ to the definition Sumner County Commissioners III. Section-by-Section Analysis and of ‘‘Non-Federal share.’’ Missouri DOT (Wellington, KS), The New York Sate Response to Comments indicated that the current definition is Department of Transportation, National SAFETEA–LU contains very specific too restrictive because the definition Capital Planning Commission, North language regarding implementation of ends with ‘‘by a State or other non- Carolina Railroad Company, Spokane the rail line relocation and improvement Federal entity’’ when a particular Regional Transportation Council (WA), program. In several sections, the project might receive financial support Caldwell Police Department (KS), City language in this final regulation is from a variety of sources. FRA agrees of Caldwell (KS), Idaho Transportation reprinted directly from 49 CFR 20154. that adding this language is appropriate Department, Sacramento Area Council Given such an unambiguous statutory because non-Federal share funding is of Governments (CA), Kansas mandate, FRA has made only a few contemplated to come from a variety of Department of Transportation, Troy additions in this final regulation to sources and be supplied through a Dierking. include language that was not in the variety of channels. The definition has The following discussion provides an statute. For those sections, there is a been revised to reflect this change. overview of the written comments further discussion of FRA’s intent. This Missouri DOT also wants to received in response to the NPRM. More Section-by-Section Analysis does not specifically add to the definition of detailed discussions of the specific discuss Congressional intent or address ‘‘construction’’ the costs of consultants comments and how FRA has chosen to the costs or benefits of the program as who are designing a project. FRA notes address those comments in the final rule a whole or any potential relocation that the definition of construction,

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which includes architectural and 504 of the Rehabilitation Act of 1973, as that KDOT believes that right of way engineering costs under item number amended. Third, the commenter and utility adjustment costs should also six of the definition, contains no proposed to add ‘‘school access’’ as a be valid reimbursable construction requirement that these be incurred ‘‘quality of life’’ measure noting that the costs. FRA notes that the definition of solely by in-house personnel. Thus, commenter’s local school is located on construction costs specifically includes consultant costs should be eligible if the opposite side of the railroad from both of those costs under subsection they are a part of a project that meets all the central business district, the fire and 262.3 in the definition of of the criteria under subsections 262.7 police stations and a large portion of the ‘‘construction,’’ items (3) and (5). and 262.9. residential neighborhoods. Insofar as the Subsections 20154(h)(1)(C) and (E) also Missouri DOT also recommends that commenter was expressing concern that specifically list right of way acquisition the reasonable costs of closures should poorly or inconveniently placed rail and utilities relocation. be included within the definition of lines contribute to students/parents/ existing rail crossings. FRA does not teachers’ difficulties in getting to and Administrator fully understand the intent of this from school, then this portion of the This definition makes clear that when comment but notes that the definitions comment will also be adopted. the term ‘‘Administrator’’ is used in this of ‘‘construction’’ and ‘‘improvement’’ Kansas DOT also suggests that traffic, Part, it refers to the Administrator of the are broad enough to support delay, and congestion should be taken Federal Railroad Administration. It also consideration of reasonable costs of into account when measuring ‘‘quality provides that the Administrator may closing existing rail crossings. of life’’ under subsection 262.9(d). FRA delegate authority under this rule to One commenter (City of Marceline, agrees that these are important quality other Federal Railroad Administration MO) wants to add to the costs included of life factors. The definition of ‘‘quality officials. in the definition of ‘‘construction’’ the of life’’ has been expanded in subsection costs associated with construction 262.3 to include these factors. Allowable Costs inspection management. The statute North Carolina DOT suggests that This definition makes clear that only which mandates these regulations gives safety, congestion and air quality should costs classified as ‘‘allowable’’ will be the Secretary discretion to determine be taken into account when measuring reimbursable under a grant awarded eligible costs and while FRA has made ‘‘quality of life’’ under subsection under this Part. Specifically, clear that the costs listed in the 262.9(d). FRA agrees that these are construction costs are the only costs that definition under subsection 262.3 are important quality of life factors. The are reimbursable. not limited to those specifically definition of ‘‘quality of life’’ has been mentioned, ‘‘construction inspection expanded in subsection 262.3 to include Construction management’’ costs that are germane to these factors, with the exception of ‘‘air This definition sets out the types of the particular project certainly seem to quality’’ which FRA believes is already project costs that are contemplated as qualify. The definition of adequately addressed in the being reimbursable under this Part. ‘‘construction’’ also includes references ‘‘environmental’’ factor. Only these costs will be allowable under to both supervising and inspecting as Several commenters (City of a grant from this program. This components of building a project. Sacramento DOT, Sacramento Regional definition closely tracks 49 U.S.C. However, FRA does not believe it is Transit District, County of Sacramento, 20154(h)(1). Subsection 20154(h)(1)(F) necessary to add this particular item to Sacramento Area Council of gave the Secretary the authority to the definitions section of the rule text. Governments, Capital Corridor Joint prescribe additional costs, other than The City of Marceline, MO also wants Powers Authority CA) requested that those specifically listed in § 20154(h)(1), FRA to place greater emphasis on three relocation, reconstruction or as allowable under this Part. As the areas in the definition of ‘‘quality of construction of passenger rail facilities authority to promulgate this rule has life:’’ (1) Impact on emergency services; or stations be specifically mentioned in been delegated to FRA by the Secretary, (2) accessibility to the disabled as the definition of an ‘‘improvement’’ in subsection 262.3, in the definition of required under the Americans with subsection 262.3. The statute’s mandate ‘‘construction,’’ item (6) makes clear Disabilities Act; and (3) school access. is clear: The purpose of the capital that FRA has that authority to prescribe FRA notes that the statutory definition grants program is for the ‘‘improvement additional costs. In addition, item (6) of ‘‘Quality of Life’’ in subsection of the route or structure of a rail line.’’ also makes clear that architectural and 20154(h)(2) includes ‘‘first responders’ The statute also makes clear that one of engineering costs associated with the emergency response time.’’ This specific the considerations in approval of a project as well as costs incurred in portion of the comment appears to be project is the ‘‘effects of the rail line on compliance with applicable addressing a broader view of ‘‘quality of the freight and passenger rail operations environmental laws and regulations are life’’ by expanding the definition to on the line.’’ FRA believes that these considered construction costs, and will include ‘‘impact on emergency mandates are broad enough to support be allowable. services.’’ Accordingly, FRA has added consideration of passenger rail facilities this proposed language into the rule or stations if they are a part of a project FRA text. that meets all the criteria under This definition makes clear that when The second proposed addition subsections 262.7 and 262.9; therefore, the term ‘‘FRA’’ is used in this Part, it suggested by this commenter, while not FRA has determined that it is not refers to the Federal Railroad elaborated upon, is an excellent necessary to add ‘‘relocation, Administration. addition to the definition of ‘‘quality of reconstruction or construction of life.’’ Poorly located, hard-to-reach (or passenger rail facilities or station’’ to the Improvement difficult to get around) rail lines that definition of ‘‘improvement’’ under The program established by the Act is have little or no access to disabled subsection 262.3. intended to provide funds for both rail passengers/commuters/citizens One commenter (Kansas DOT) is line relocation and improvement certainly can impact quality of life. FRA concerned that the definition of projects. This definition makes clear the will incorporate this suggestion with a ‘‘allowable costs’’ states that only types of projects that fall under the slight modification to include section construction costs are reimbursable and category of ‘‘improvements.’’ FRA

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considers improvements to be projects Relocation for inflation, FRA will use guidance such as those that repair defective This definition states what relocation published by the Association of aspects of a rail system’s infrastructure, consists of and provides the distinction American Railroads (AAR). Specifically, projects that enhance an existing system between the two types of rail line FRA will use the materials and supplies to provide for improved operations, or relocations. A lateral relocation occurs component of the AAR Railroad Cost new construction projects that result in when a rail line is horizontally moved Indexes. FRA will make the adjustment better operational efficiencies. Examples from one location to another, usually each October based on the most recent include track work that increases the away from dense urban development, edition of the Cost Indexes. class of track, signal system grade crossings, etc., in an effort to Several commenters (North Carolina improvements, and lengthening existing allow trains to operate more efficiently Railroad Company, Sacramento Area sidings or building new sidings. and the community surrounding the old Council of Governments) suggested that the requirements could be more clearly Non-Federal Share line to function more effectively. The typical example is moving a rail line defined by FRA, specifically what type This definition indicates that Non- that runs through the middle of a town of projects will be considered high- Federal share means the portion of the or city to a location outside of the town priority, and therefore, excluded from allowable cost of the local rail line or city. A vertical relocation occurs the allocation formula. FRA did not relocation or improvement project that when a rail line remains in the same include a definition of ‘‘high priority is being paid for through cash or in-kind location, but the track is lifted above the projects,’’ because Congress designates contributions by a State or other non- ground, as with an overpass, or is sunk certain projects as ‘‘high-priority’’ when Federal entity. The definition has been below ground level, as with a trench. it determines that specific projects will revised in the final rule as explained be funded and appropriates funds for above. Secretary those particular projects through the appropriations process. Subsection Private Entity This definition makes clear that ‘‘Secretary’’ refers to the Secretary of 262.5 remains unchanged from the This definition makes clear what Transportation. NPRM. types of entities are contemplated under Section 262.7 Eligibility § 262.13. A private entity must be a State nongovernmental entity, but can be a This definition is reprinted from This section is reprinted directly from domestic or foreign entity and can be SAFETEA–LU and can be found at 49 SAFETEA–LU and can be found at 49 either for-profit or not-for-profit. U.S.C. 20154(h)(3). It makes clear that, U.S.C. 20154(b). It sets out the eligibility for the purposes of this Part except for criteria for projects and declares that Project § 262.17, any of the fifty States, political any State (or political subdivision of a This definition makes clear that the subdivisions of the States, and the state) is eligible for a grant under this term ‘‘project’’ refers only to a local rail District of Columbia is a ‘‘State’’ and section for any construction project for line relocation or improvement project eligible for funding from this program. the improvement of a route or structure undertaken with funding from a grant The definition also makes clear, of a rail line that either is carried out for from FRA under this Part. however, that for purposes of § 262.17 the purpose of mitigating the adverse effects of rail traffic on safety, motor Quality of Life only, ‘‘State’’ does not include political subdivisions of States, but instead only vehicle, traffic flow, community quality FRA requested comments in the the fifty States and the District of of life, or economic development, or NPRM on what factors should be Columbia. involves a lateral or vertical relocation considered when measuring ‘‘quality of of any portion of a rail line. As noted life.’’ The Act requires only that the Tangible Personal Property above, lateral relocation refers to definition include first responders’ This definition indicates that horizontally moving the rail line to emergency response time, the ‘‘tangible personal property’’ refers to another location while vertical environment, noise levels, and other property that has physical substance relocation refers to either lifting the rail factors as determined by FRA. Thus, and can be touched, but is not real line above the ground or sinking it Congress left FRA some discretion in property. Examples of tangible personal below the ground. Subpart (b) of this determining what else should be property include machinery, equipment section also makes clear that only costs considered under this definition. FRA and vehicles. associated with construction, as defined believes ‘‘quality of life’’ should include in this Part, will be allowable costs for Section 262.5 Allocation Requirements factors associated with an individual’s purposes of this Part. Therefore, only overall enjoyment of life or a This section is based on the language construction costs will be eligible for community’s ability both to function included in 49 U.S.C. 20154(d). It reimbursement under a grant agreement and to provide services to its residents mandates that at least fifty percent of all administered under this Part. at a reasonable level. Commenters were grant funds awarded under this Part out One commenter (New York DOT) invited to discuss specific factors that of funds appropriated for a fiscal year be suggested that FRA clarify what, if any, can measure these somewhat provided as grant awards of not more retroactive expenses will be eligible for amorphous concepts, as well as any than $20,000,000 each. Designated, reimbursement through identification of other factors that may be appropriate. high-priority projects will be excluded a time frame or project start date that The definition has been revised in the from this allocation formula. The statute would vary with expense type. This final rule as discussed above. states that the $20,000,000 amount will section was taken verbatim from the be adjusted by the Secretary to reflect statute and can be found at 49 U.S.C. Real Property inflation for each fiscal year of the 20154(b). The statute is clear that ‘‘only This definition makes clear that ‘‘real program beginning in FY 2007. Under costs associated with construction, as property’’ refers to land, including land the Secretary’s delegation of rulemaking defined in this Part [subsection improvements, structures and authority to FRA, however, FRA will 20154(h)(1)] will be considered appurtenances thereto, excluding make the annual inflationary allowable costs for purposes of this Part movable machinery and equipment. adjustment. In making the adjustment [section 20154].’’ FRA has determined

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that identifying specific expenses, in keeping with the statutory directions profit corporations as eligible applicants including retroactive expenses, runs to craft grant agreements that are for the program. FRA again emphasizes counter to the purposes of the statute specifically geared to the statutory that the eligibility criteria were which ties allowable costs to ‘‘costs criteria and the project being funded. established by Congress and the associated with construction.’’ FRA One commenter (Charlotte Area statutory language directed that only does not opine on whether specific Transit System) wants to ensure that a States or political subdivisions of States expenses, including retroactive rail line, even though it may be are eligible applicants. FRA cannot expenses might be ‘‘allowable costs’’ as currently out-of-service, would make changes to Congressional contemplated under the statute. This potentially be eligible for the program. mandates where it has not been given determination is best left to the Specifically, the commenter proposes to discretion to do so. individual grant agreements on a case- revise ‘‘mitigating adverse effects’’ in One commenter (the National Capital by-case basis. subsection 262.7(a)(1) to ‘‘mitigating Planning Commission) thought that New York DOT also requests that FRA current or anticipated adverse effects.’’ subsection 262.7(b) should be clarified clarify whether public or private grade Additionally the commenter proposes to as it relates to NEPA requirements to crossings will be eligible for the add the following language to the end of state that only NEPA costs associated program. Although it was not exactly subsection 262.7(a)(2): ‘‘whether or not with construction of a particular project clear what kind of grade crossing the currently in use.’’ Both of these be considered ‘‘allowable costs.’’ FRA commenter was referring to, FRA subsections incorporate the statutory agrees that some clarification is needed assumes the comment refers to any language and FRA cannot make changes in this regard and adopts NCPC’s grade crossing, public or private within to Congressional mandates where it has comment to include ‘‘as defined in the confines of an otherwise eligible not been given discretion to do so. In section 262.3’’ in section 262.7(b), project. The statute’s mandate is clear: the case of out-of-service rail lines, which now reads ‘‘(b) Only costs The purpose of the capital grants however, the current language of associated with construction, as defined program is for the ‘‘improvement of the subsection 262.7 appears to be broad in § 262.3, will be considered allowable route or structure of a rail line.’’ The enough to support such a project if it costs.’’ This is the only revision made to statute also states that one of the meets other requirements of the program subsection 262.7 from the NPRM. considerations in approval of a project as set out in the statute and regulation. Section 262.9 Criteria for Selection of is the ‘‘effects of the rail line on the NC DOT offered a very similar concern Rail Lines freight and passenger rail operations on requesting that the final rule authorize the line.’’ FRA has concluded that these projects that make use of both active This section is based extensively on mandates are broad enough to support and out-of-service rail rights of way and 49 U.S.C. 20154. It sets out the criteria consideration of grade crossings if they programmed service expansions. for FRA to use in determining which are a part of a project that meets all the One commenter (Sacramento Regional projects should be approved for grants criteria under subsections 262.7 and Transit) wanted FRA to expand the under this Part. The statute specifies 262.9. It is not necessary to specifically eligibility of projects that can be funded that in determining whether to award a refer to ‘‘public or private grade under the program to include facilities grant to an eligible State (as defined in crossings’’ as a potentially eligible that are already in use as passenger rail this Part) under this section, the project under subsection 262.7 stations under subsection 262.7 In the Secretary shall consider the following New York DOT also suggests that FRA case of facilities already in use as factors: define more specifically what costs passenger rail stations, the current • The capability of the State (as would be eligible for reimbursement language of subsection 262.7 appears to defined in this part) to fund the project under subsection 262.7 and to clarify be broad enough to support such a without Federal grant funding; how those costs will be verified. The project if it meets the other • The requirement and limitation commenter suggests referencing 23 CFR requirements of the program as set out relating to allocation of grant funds 140, Subpart 1—Reimbursement for in the statute and regulation. provided in § 262.5 of this Part; Railroad Work. FRA has reviewed the Additionally, as previously discussed in • Equitable treatment of the various regulation cited by the commenter. the FRA response to comments under regions of the United States; • These regulations address subsection 262.3, the statute’s mandate The effects of the rail line, relocated reimbursement to the States for railroad is clear: The purpose of the capital or improved as proposed, on motor work on projects undertaken in grants program is for the ‘‘improvement vehicle and pedestrian traffic, safety, accordance with the provisions of 23 of the route or structure of a rail line.’’ community quality of life, and area CFR 646, subpart B, entitled, ‘‘Railroad- The statute also states that one of the commerce; and • Highway Projects.’’ The purpose of this considerations in approval of a project The effects of the rail line, relocated subpart is to prescribe policies and is the ‘‘effects of the rail line on the or improved as proposed, on the freight procedures for advancing federal-aid freight and passenger rail operations on and rail passenger operations on the rail projects involving railroad facilities. the line.’’ FRA believes that these line. While somewhat similar in nature, mandates are broad enough to support Although the listed factors are fairly there are marked differences in the consideration of passenger rail facilities comprehensive, FRA sought to retain purposes of the two programs. This or stations if they are a part of a project the flexibility to consider other factors program is being promulgated under 49 that meets all the criteria under that may not be readily apparent, but CFR 262 and is solely applicable to rail subsections 262.7 and 262.9. It is not may be critical in evaluating the line relocations and/or improvements. necessary to specifically refer to effectiveness of expending funds to The statute has set out what costs are to ‘‘facilities already in use as passenger achieve the expected benefits of a be allowable and these criteria will be rail stations’’ as a potential project. Accordingly, FRA included an incorporated into any grant agreement. ‘‘improvement’’ under subsection 262.3. additional ‘‘catchall’’ criterion in its While 23 CFR 140, Subpart 1 is helpful One commenter (Gateway Rural NPRM subsection 262.9(f). This as a reference and reminder of the Improvement Pilot Association (VT)) additional criterion would allow FRA to different costs associated with a project, criticized the exclusion of public consider any other factors FRA FRA has determined that it will be more authorities and special-purpose non- determines to be relevant to assessing

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the effectiveness and/or efficiency of the Therefore, the rule language has been • Relocation/closing of a grade grant application in achieving the goals clarified to require applicants to submit crossing so that volunteer firefighters of the national program, including the evidence sufficient for the FRA to can travel more quickly from their level of commitment of non-Federal determine whether projects proposed office/home to the fire station, and/or private funds to a project and the for Federal investment are cost-effective potentially resulting in better time to anticipated public and private benefits. in terms of the benefits achieved in emergency calls. FRA’s NPRM solicited comments on relation to the funds expended. In • Number of crossings in a particular this addition and any other potential addition, as provided for in subsection community/segment and the impact of factors that the FRA may consider in 262.11 a State must submit a description frequent crossings on a community (e.g., determining whether to award a grant. of the anticipated public and private traffic congestion, train whistles/horns). • The South Dakota Department of benefits associated with each rail line Amount of railroad-owned land in Transportation commented: relocation or improvement project a town/city/political jurisdiction that ‘‘We are not opposed to the FRA described in subsections 262.7(a)(1) and might be abandoned, leading to the loss having some flexibility in weighing (2) and the State’s assessment of how of property tax receipts, resulting from applications, but note that neither the those benefits outweigh the costs of the a relocation. • With respect to local industries statute not{r} the proposed rule proposed project. The determination of served by the line proposed for includes a statement of the ‘goals of the such benefits should be developed in relocation, identify transport national program.’ We are concerned consultation with the owner and user of the rail line being relocated or improved alternatives that would be available if that this approach implies that FRA the relocation is approved; identify could develop ‘national’ program goals or other private entity involved in the project. The State shall also identify any industries that would be newly served on its own, with no notice and comment by the relocated rail line; and identify process, and then apply them in financial contributions or commitments it has secured from private entities that economic impacts on the community weighing the merits of applications. from the project such as jobs created/ Because the NPRM does not identify the are expected to benefit from the proposed project. Project applications lost, tax revenues, etc. national goals that would receive weight • Documented incursions of vehicles under subsection (f) we cannot support that include a realistic projection of and detailed analysis of the project’s costs on to rail right-of-way. Number of the proposed additional language. accidents per year, severity (fatalities), Again, we are not against all flexibility and benefits will be considered most favorably. The FRA does not intend to dollar value (current dollars) of each for FRA but, with the exception of one accident, and any findings of fault by factor, discussed below [the level of impose a rigid list of data elements that applicants could address in police, railroads, FRA, National commitment of non-Federal and or Transportation Safety Board. private funds to a project] subsection (f) demonstrating cost effectiveness, and • we will consider all relevant Any pertinent information taken is too open-ended and vague to warrant from FRA’s on-line safety data base our support.’’ information, consistent with our statutory obligation. However, the www.fra.gov/safetydata. (e.g., number of In response to comments received, grade crossing or trespasser accidents/ FRA believes that additional following are among the considerations that might be relevant factors. incidents, injuries, fatalities, ranking in clarification is needed regarding how it • the FRA Highway Rail Grade Crossing will select from eligible projects. FRA as Vehicle counts at highway crossings; distinguishing among Web Accident Prediction System.) well as the federal government, believes • Environmental impacts from the that one of the national goals is to select passenger, heavy truck, emergency, etc., vehicles would strengthen an existing rail line (noise, vibration, air projects that are cost effective in that the pollution) that would be eliminated by benefits exceed the cost. States, the FRA application. • Pedestrian counts. the relocation; environmental impacts and the federal government have an • Trains per day (passenger and from the relocated rail line (positive and interest in maximizing the benefits freight). Average train length and for negative). derived from the investment of Federal, freights the frequency of hazmat in train As noted above, this list presents State, local or private funding in rail consists. examples of the types of data that would line relocation projects and in proposing • Train horn frequency (passenger support an assessment of cost and selecting projects that are cost and freight). Average number (and effectiveness, but is not all inclusive. effective in terms of the benefits volume) of train horns daily near FRA invites applicants to submit achieved in relation to the funds populated areas that a relocation or analysis of alternate or additional data, expended. Statutory criteria in improvement project could potentially appropriate to the specific project under subsections 262.9(d) and (e) each reduce. consideration for funding. require an assessment of the benefits to • Class of track under FRA’s track One commenter (North Carolina be derived from a project. The criterion safety standards for both the existing Railroad Company) indicated that while in subsection 262.9(f) seeks to expand and the proposed relocated rail line. it agreed with the FRA that the criteria the universe of factors the FRA will • Average train speeds (passenger and for selection in subsection 262.9 should consider in assessing effectiveness and freight) and length of time any crossing ensure equitable treatment of various efficiency of the project. To be clear, in is blocked. regions of the United States, it suggested evaluating applicant projects for • Proximity of switching yards to a that FRA clarify how high priority funding, FRA will examine the evidence crossing and length of time any crossing projects (see subsection 262.5) will be of the project’s cost effectiveness. While is blocked by freight switching moves. recognized within those regions. It is the we will consider all the statutory • Movement of emergency vehicles agency’s view that the presence of criteria in evaluating applications, we through a crossing and distance of the designated high priority projects in a intend to approve only those projects crossing from a hospital, nursing home, particular region of the country would where the benefits can reasonably be fire station, military base, power plant, be a factor to be considered by FRA in expected to exceed the costs. FRA will school or similar facility where time lost evaluating whether to award a grant to attempt to target funds to projects that waiting for a crossing to clear could another project in that same area of the produce the greatest net benefits. contribute to injury or death. country as the agency seeks to ensure

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equitable treatment of various regions of areas’’ would have to be evaluated on a under subsection 262.9(f). Five of the the United States. case-by-case basis. FRA does not have six criteria in section 262, specifically North Carolina Railroad Company the discretion to change the language set subsections 262.9(a)–262.9(e) were additionally requests that FRA clarify out in the statute. At this point, FRA mandated in the statute. the language, ‘‘the capability of the State does not believe that its intention to use Sacramento Regional Transit also to fund the rail line relocation without the agency’s current regional breakdown wanted FRA to provide explicit scoring Federal grant requirement’’ criterion will have an adverse impact on rural or of project criteria, particularly giving under subsection 262.9(a). Specifically, metropolitan areas. FRA did not receive highest priority to community benefit the commenter questions whether the any suggestions for alternative ways of and quality of life. FRA, as discussed in above criterion means that FRA will dividing up the country. The Idaho some of the previous comments, has provide greater support to poorer States, Transportation Department and the determined that the statute does not to States with larger projects that are Spokane Regional Transportation provide for giving one criterion more more difficult to fund, or to States that Council urged their support for weight than another. Similarly, because have or are likely to have significant subsection 262.9(c) as drafted. the NPRM did not identify what FRA matching funds from non-Federal South Dakota DOT raises a concern would consider a ‘‘good’’ project, New entities. The language found in about the interplay between subsections York State DOT suggests that FRA subsection 262.9(a) tracks the statutory 262.9(a) and (f). While it recognizes the provide additional detail on project language as set out in 49 U.S.C. statutory basis for subsection 262.9(a), it preferences to guide project 20154(c)(1), which reads: ‘‘[t]he is concerned that FRA’s addition of the development and submittals. As the capability of a State to fund the rail line non-statutory language in subsection previous discussion under this relocation project without Federal grant 262.9(f), and specifically the language subsection has highlighted, FRA does funding.’’ This factor as set out in the relating to the level of commitment of not have a preconceived notion of what statute is one of five criteria that FRA non-Federal or private sector funds to a constitutes a good project. The agency must consider and was not assigned any project, may potentially disadvantage intends to fairly and consistently apply greater weight than any of the other four those most in need of federal assistance the selection criteria included in factors. Congress’ inclusion of this factor as they would be least able to make a subsection 262.9 in determining does suggest to the FRA that the rail line commitment to the project beyond the whether to award a grant to an eligible relocation and improvement program minimum required match. FRA notes State under this program. should not be used to fund a project that that this is but one of six factors that One commenter (the Gateway Rural the State is fully capable of funding on must be evaluated before deciding Improvement Pilot Association (VT)) its own. FRA included a discussion of whether to approve funding for a recommended that FRA consider the some of the considerations that might be particular project. FRA included this following factors in identifying eligible relevant to the agency in evaluating this language for several reasons. projects: (1) The potential of a project to factor in the NPRM section-by-section First, the statute clearly indicates that share the load for both freight and discussion related to this section. On the required non-Federal match is not passengers in a corridor where rail lines the other hand, a State or other non- set at a certain percentage as it is with run parallel to the route of a National Federal entity is required to provide at some other funding programs but Highway System in an area not served least 10 percent of the shared costs of a provides for FRA to secure at least 10 by an interstate highway; (2) the project funded under this program. percent from non-Federal sources. This potential to address two or more Logically, the program can support more suggests to the agency a goal of projects within a single corridor; and (3) improvements to the extent that States achieving the maximum benefit from the potential of a project to support or other non-Federal entities cover a the available Federal funds. Second, the economic development and urban percentage of the shared costs that is in statute requires the Secretary to revitalization efforts. FRA agrees that excess of 10% and this would be consider the feasibility of seeking the three factors suggested by this relevant to the agency in evaluating the financial contributions or commitments commenter are important factors that proposed projects. from private entities involved with a may be relevant in assessing the One commenter (South Dakota DOT) project in proportion to the expected effectiveness or efficiency of a grant is concerned that FRA’s intention to benefits to such private entities. Again, application. However, these factors divide the country along the lines of this requirement reinforces the concept should also be considered as one (or FRA’s eight regions in interpreting the of securing the maximum public benefit more) among the ‘‘other factors’’ that language in subsection 262.9(c) may put from the program funds. Leveraging the FRA may consider under subsection rural areas at a disadvantage. South Federal funds along with state, local and 262.9(f). The likelihood that some Dakota DOT wants FRA to add private funds can produce the most projects will offer public benefits not ‘‘including equitable treatment of rural benefit for Federal dollar expended. specifically foreseen by Congress or the and metropolitan areas’’ to the end of Several commenters (City of agency underscores the importance of the subsection. The language found in Sacramento DOT, Sacramento Regional including subsection 262.9(f). Five of subsection 262.9(c) tracks the statutory Transit, County of Sacramento, the other six criteria, specifically language as set out in 49 U.S.C. Sacramento Area Council of subsections 262.9(a)–(e) were mandated 20154(c)(3), which reads: ‘‘[e]quitable Governments) wanted ‘‘security risks’’ in the statute. treatment of the various regions of the or ‘‘Homeland Security risks’’ to be set United States.’’ This factor as set out in forth in the selection criteria under Section 262.11 Application Process the statute is one of five criteria that subsection 262.9. FRA agrees that All grant applications submitted FRA must consider and there is no ‘‘security risks’’ or ‘‘Homeland Security under this program must be submitted indication that it is to have any greater risks’’ are important factors that may be to FRA through the Internet at http:// weight than any of the other four relevant in assessing the effectiveness or www.grants.gov. All Federal grant- factors. Whether the consideration of efficiency of a grant application. making agencies are required to receive this factor along with the other four However, these particular applications through this website. factors as set out by Congress will considerations are only two among the Potential applicants should note that the disadvantage (or advantage) ‘‘rural ‘‘other factors’’ that FRA may consider information below describes FRA’s

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typical grant application requirements. has appropriated $20,040,200 for fiscal that applicants are limited to state However, the specific requirements for year 2008. As Congress has appropriated Departments of Transportation. This individual grants will be listed in the both competitive and non-competitive same commenter also suggests that FRA ‘‘Instructions’’ section for the particular funds for specific projects under this address whether and how cost changes grant for which FRA is accepting Program, FRA will notify the potential will be addressed. Cost changes can applications. recipient(s) of the non-competitive occur in any project and the typical The application process for funds funds and will disburse the funds as grant process allows for them as long as appropriated under § 20154 will differ soon as this final rule is effective. With the cost changes meet the specific depending on whether the grant is non- respect to the competitive funds, FRA criteria set out in the typical grant competitive or discretionary will publish a Notice of Funds application and administration. The (competitive). Non-competitive Availability (NOFA) in the Federal Web site, www.grants.gov provides applications—usually projects Register and eligible applicants will be general information. Specific designated as high-priority in the able to apply for a grant through information will be set out in each appropriations statute or in the www.grants.gov. FRA anticipates that individual grant agreement. Conference Report accompanying an the NOFA will simply indicate the Section 262.13 Matching Requirements annual appropriation—generally must amount of funds appropriated by include the following: (1) A detailed Congress and basic information about This section is reprinted entirely from project description; (2) Standard Forms the application deadlines for applying SAFETEA–LU and can be found at 49 (SF) 424—Application; SF 424A or C— through www.grants.gov. U.S.C. 20154(e). It sets out the Budget Information; SF 424B or D— Subsection 262.11(b) mandates that, requirement that a State or other non- Assurances; Assurances and when submitting an application, a State Federal entity shall pay at least ten (10) Certifications (i.e., Certification must submit a description of the percent of the shared costs of a project Regarding Debarment/Suspension/ anticipated public and private benefits that is funded in part by a grant Ineligibility, Certification Regarding associated with each proposed rail line awarded under this Part. The ten Drug-free Work Place Requirements; relocation or improvement project and percent may be in cash or in the form Certification Regarding Lobbying, its assessment of how those benefits of the following in-kind contributions: Certificate of Indirect Costs); SF 3881— outweigh the costs of the proposed • Real property or tangible personal Payment Information; SF 1194— project. The determination of the property, whether provided by the State Authorized Signatures; and (3) an Audit benefits must be developed in (as defined by this Part) or a person for History. Potential applicants should consultation with the owner and user of the State; keep in mind that these are the typical the rail line being relocated and • The services of employees of the forms that FRA requests with non- improved or other private entity State or other non-Federal entity, competitive applicants. FRA may not involved in the project. Since one of the calculated on the basis of costs incurred require all of these for a particular factors that FRA will consider in by the State or other non-Federal entity application. selecting projects is the level of for the pay and benefits of the For a discretionary (competitive) commitment of non-Federal and/or employees, but excluding overhead and grant, applicants will be provided with private funds available for the project general administrative costs; certain basic information covering (see proposed section subsection • A payment of any costs that were deadlines and addresses for submitting 262.9(f)), applications should also incurred for the project before the filing statements of interest, and an estimate identify the financial contributions or of an application for a grant for the of the amount of funding available. FRA commitments the State has secured from project under this section, and any in- had indicated in the preamble to the any private entities that are expected to kind contributions that were made for NPRM that FRA’s staff would develop a benefit from the proposed project. The the project before the filing of the Source Selection Plan (SSP) to be used language for this subsection is based application, if and to the extent that the for evaluating applications and that the upon SAFETEA–LU requirements and costs were incurred or in-kind SSP would be made available to all can be found at 49 U.S.C. 20154(e)(4)(A) contributions were made to comply applicants. This process was described and (B). with a provision of a statute required to only in the preamble and was not Subsection 262.11(c) allows for a be satisfied in order to carry out the included as a part of the proposed rule. potential applicant to request a meeting project. The agency has now concluded that it with the FRA Associate Administrator Finally, this section states that FRA is not needed and is not included in the for Railroad Development or his will consider the feasibility of seeking final rule. The agency will make project designee to discuss a project the financial contributions or commitments selections on the basis of the criteria potential applicant is considering for from private entities involved with the described in the final rule. Applicants financial assistance under this Part. project in proportion to the anticipated selected for funding will then be Subsection 262.11(c) does not require public and private benefits that accrue required to submit some of the same that such a meeting occur, but it has to such entities from the project. information described above for the been FRA’s experience that pre- FRA’s NPRM invited comments and non-competitive projects (i.e., standard application meetings generally save the suggestions from commenters on how forms, audit history, etc.). potential applicant both time and FRA can best accomplish this All applicants should keep in mind money, and, therefore, FRA strongly requirement. Because project sponsors that no funding will be available for this encourages potential applicants to are most directly involved and familiar program unless and until Congress schedule such a meeting. with the details of the proposed projects appropriates funding for it. SAFETEA– One commenter (New York DOT) and are required to submit a description LU authorized, but did not appropriate, suggests that FRA clarify whether an of the anticipated public and private $350 million per fiscal year for each application must be filed by a state benefits associated with each rail line fiscal year 2006 through 2009. As of the DOT. The eligible applicants are relocation or improvement project as a publication date of this final rule, ‘‘States, including political subdivisions part of the application process, the Congress has not appropriated any of a State as defined in subsection requirement to seek financial funds for fiscal years 2006 or 2007 and 20154(h)(3).’’ There is no requirement contributions or commitments from

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private entities might best be the NEPA review, either directly (if the applications FRA has received or how accomplished by the project sponsors in entity administering the grant is a State their project might fit in competition assembling the overall financial package agency with statewide jurisdiction) or with others (although the risk might be to complete the project. This could then through a third party contract. FRA’s minimized if the applicants paid for the be one of the factors evaluated by the NEPA compliance will be governed by compliance work themselves and FRA in deciding whether to proceed FRA’s ‘‘Procedures for Considering applied this cost to the 10% matching with a project or in selecting one project Environmental Impacts’’ (65 Fed. Reg. requirement if a grant is awarded). over another should there be more than 28545) and the NEPA regulations of the NCPC’s suggestion is to clearly tie one project competing for any available Council on Environmental Quality (40 subsection 262.7(b) back to the funding. CFR Part 1500). definition of construction in subsection Several commenters (City of This section also notes several of the 262.3 to be sure NEPA costs are Sacramento DOT, Sacramento Regional other environmental and historic included (which FRA has agreed to as Transit, County of Sacramento, preservation statutes that must be explained earlier) and to revise Sacramento Area Council of considered during the NEPA review. subsection 262.15 to limit the need to Governments) wanted FRA to clarify This is not, however, a comprehensive secure the Administrator’s approval to whether non-Federal matches in excess list of all environmental and historic actual physical construction with the of 10% will be ‘‘rewarded’’ in the preservation statutes and implementing implicit assumption that NEPA work selection criteria. Non-federal matches regulations that must be considered, but that the statute (and FRA’s in excess of the 10% requirement will instead merely illustrative of the issues implementing regulations) call be evaluated on a case-by-case basis. As that a State may be required to address ‘‘construction’’ could proceed and be for the concept of being ‘‘rewarded,’’ the in the environmental review. reimbursed in advance of final NEPA matching percentage is one of many Several commenters (City of approval. An alternative approach that variables that might have an effect on a Marceline, MO, American Public FRA believes is an easier solution is to particular application. FRA does not, at Transportation Association) commented clarify in the relevant subsection(s) that this time, plan to give an across-the- that it may be unnecessarily restrictive FRA will in appropriate circumstances board advantage. Each application will to require that NEPA review be pay for NEPA work in advance of a judged on the entire spectrum of factors complete before FRA decides to approve decision to actually construct a project and criteria. the project for funding. The commenter but with the caveat that FRA’s decision One commenter (the Gateway Rural suggested incrementally approving to fund NEPA work does not guarantee Improvement Pilot Association (VT)) funding for the preliminary engineering or express any FRA decision with wanted FRA to establish a provision and environmental compliance and then respect to the project generally. similar to the ‘‘Tapered Match’’ allowed fully funding a project after these steps under FHWA’s Innovative Finance are completed and approved. Section 262.17 Combining Grant program by which projects can provide Additionally, the commenter suggested Awards their matching share at any point during that FRA provide grants that assist in the project. As a side note, GRIP was the project development process, This section is reprinted entirely from concerned that FRA recognize the including the NEPA process. SAFETEA–LU and can be found at 49 contribution of costs incurred prior to Another commenter (the National U.S.C. 20154(f). It allows for two or the FRA grant under subsection 262.13 Capital Planning Commission) wanted more States, but not political and the time pressures faced by the subsection 262.15 to include a subdivisions of States, pursuant to an applicants. There is currently no requirement that environmental and agreement entered into by the States, to language in either the statute or Part 262 historic documents be completed and combine any part of the amounts that calls for the match to be made by approved by the Administrator prior to provided through grants for a project a certain time and FRA will consider a decision by FRA to approve a project under this Part, provided the project these issues in evaluating individual for physical construction. As FRA will benefit each State and the applications. understands it, the commenters want agreement is not a violation of a law of the environmental assessment costs to any of the States. SAFETEA–LU Section 262.15 Environmental be eligible costs before a decision is specifically excludes political Assessment made as to whether FRA will approve subdivisions of States from taking This section clearly states that, in actual physical construction funding for advantage of this section, but does not order for FRA to award funding for any a particular project. exclude the District of Columbia. FRA project, the National Environmental FRA believes that some of the did not receive any substantive Policy Act (42 U.S.C. 4321 et seq.) confusion arose from including NEPA comments or suggested revisions to this (NEPA) and related laws, regulations work in the definition of construction in section though the Idaho Transportation and orders must be complied with. subsection 262.3 and then stating in Department and the Spokane Regional NEPA mandates that before any ‘‘major’’ subsection 262.15 that FRA will not Transportation Council urged FRA to Federal action can take place, the fund any construction until the NEPA maintain this subsection as drafted. Federal entity performing the action work is completed. FRA understands Subsection 262.17 remains unchanged must complete an appropriate that NEPA work is more properly from the NPRM. environmental review. The use of classified as pre-construction work. Section 262.19 Closeout Procedures Federal funds in a project triggers the Thus, the NPRM suggested that the NEPA process. Thus, because FRA will project proponent must fund NEPA The ‘‘grant closeout’’ is the process by be providing Federal funds to grantees work up front and then FRA will which the FRA and grantee perform for local rail line relocation and reimburse the proponent if FRA decides final actions that document completion improvement projects, a completed to go forward with construction on the of work, administrative requirements, NEPA review will be required before the project. and financial requirements of the grant agency decides to approve any project. FRA understands that this is a risky agreement. FRA, the grantee, and any FRA may request that a State provide approach for the proponent especially if other involved parties, such as an environmental information and/or fund the proponent is unsure how many auditor, need to fulfill these

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requirements promptly in order to avoid IV. Regulatory Impact regulatory evaluation. Note that the unnecessary delays in grant closeout. burden of funding these compliance A. Executive Order 12866 (Regulatory tasks would be reduced for those FRA will notify the grantee in writing Planning and Review) and DOT applicants that are reimbursed under 30 days before the end of the grant Regulatory Policies and Procedures period regarding what final reports are the new options in the final rule in due, the dates by which they must be This rulemaking action is subsection 262.15. received, and where they must be economically significant for purposes of FRA estimates that implementation of submitted. The grantee will be required review under U.S. Department of the application requirements contained to submit the reports within 90 days Transportation regulatory policies and in this rule could cost approximately after the expiration or termination of the procedures. However, it is not $714,261 (PV, 7%), if funds are grant. Copies of any required forms and economically significant under E.O. appropriated for this program and instructions for their completion will be 12866 and has not been submitted for government jurisdictions apply for included with the notification. The OMB review. grants. FRA believes that these This section summarizes the financial, performance, and other application costs would be justified by estimated economic impact of the rule. reports required as a condition of the the benefits associated with better As mandated by 49 U.S.C. 20154, this grant will generally include the allocation of grant funds to improve rulemaking establishes the process for safety and quality of life. following: applying for capital grants for local rail • This rule is not anticipated to Final performance or progress line relocation and improvement adversely affect, in a material way, any report; projects. This regulation will affect only sector of the economy. This rulemaking • Financial Status Report (SF–269) or those entities that voluntarily elect to sets forth eligibility and selection Outlay Report and Request for apply for the capital grants under criteria for project proposals in the local Reimbursement for Construction section 20154 and those that are rail line relocation and improvement Programs (SF–271); selected to receive a grant under the projects capital grants program, which • Final Request for Payment; program. It will not impose any direct, will result in only minimal cost to • Federally-owned Property Report. A involuntary, un-reimbursed costs on program applicants. In addition, this grantee must submit an inventory of all those entities not applying for the rule would not create a serious Federally-owned property (as opposed program. Prospective applicants will inconsistency with any other agency’s to property acquired with grant funds) normally already have available the action or materially alter the budgetary for which it is accountable and request information needed to prepare impact of any entitlements, grants, user disposition instructions from FRA if the applications for funding so these costs fees, or loan programs. should be minimal. property is no longer needed. B. Regulatory Flexibility Act Upon receipt of this information, FRA FRA has prepared a final evaluation of the economic impact of this The Regulatory Flexibility Act of 1980 will determine whether any additional regulatory action. A copy of this (Pub. L. 96–354, 5 U.S.C. 601–612) funds are due the grantee or whether the document has been placed in the docket requires a review of rules to assess their grantee needs to refund any funds. FRA for this rulemaking. As noted in the impact on small entities. In the NPRM, will also determine final costs and, if NPRM, the only costs imposed on the FRA was unable to determine whether necessary, make upward or downward participants (States and political the rule was expected to have adjustments to any allowable costs subdivisions) are the costs associated significant economic impact on a within 90 days after receipt of reports with completing an application and substantial number of small entities and make prompt payment to the providing the required minimum ten because no funds were appropriated to grantee for any unreimbursed allowable percent non-Federal funding match and the program and FRA was unable to costs. If the grantee has received more these are the costs that FRA has determine what projects would be funds than the total allowable costs, the considered in the evaluation of funded. In response to the NPRM, the grantee must immediately refund to economic impact. Small Business Administration (SBA) FRA any balance of unencumbered cash In the NPRM, FRA requested communicated to the FRA that it needed advanced that is not authorized to be comments, information, and data from to certify the rule as not having a retained for use on other grants. the public and potential users significant economic impact on a FRA will notify the grantee in writing concerning the economic impact of substantial number of small entities, or that the grant has been closed out. The implementing this rule. Among the 28 prepare a Regulatory Flexibility grant agreement will in most cases be comments received in response to the Analysis (RFA). FRA has revised the ready to be closed out before receipt of NPRM, FRA received no direct regulatory flexibility determination and the single audit report that covers the comments about the costs of the certifies that the final rule is not period of the grant performance. application process. Commenters did expected to have a significant economic Therefore, the grant will be closed express concern about the need to impact on a substantial number of small administratively without formal audit. provide preliminary engineering and entities. For this rule, the relevant The grant may be reopened later to environmental compliance definition of small entities is based on resolve subsequent audit findings. documentation before FRA decides to population served. As defined by the The closeout of a grant does not affect approve a project for funding. The final SBA, this term means governments of FRA’s right to disallow costs and rule adds options for funding these cities, counties, towns, townships, recover funds on the basis of a later compliance tasks. Whether or not villages, school districts, or special audit or other review and the grantee’s applicants pay for these costs or are districts with a population of less than obligation to return any funds due as a reimbursed by FRA, from a national 50,000. States are not included in the result of later refunds, corrections, or point of view real resources will be definition of small entity set forth in 5 other transactions. expended for performing these tasks. U.S.C. 601, but political subdivisions of FRA did not receive any comments on The NPRM regulatory evaluation States may well fall into this category. this section and it remains unchanged accounted for these costs and they Out of 28 entities that expressed interest from the NPRM. remain unchanged in the final in the grant program as indicated by

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comments to the docket, two were small The new funding options in relocation and improvement program entities. Only one small entity, the City subsection 262.15 (discussed above) for could certainly provide benefits to small of Marceline, MO, expressed concern preliminary engineering and entities, such as local governments regarding the impact of the application environmental compliance potentially (political subdivisions of a State). The requirements. Given the fact that reduce the burden for these tasks on program could provide economic, Congress appropriated no funding for small entities as they may receive grant safety, and environmental benefits if the program in FY 2006 and FY 2007, money for these tasks, if approved. The funding for projects is approved. A copy FRA is unsure how many additional number of small entities that of the complete Regulatory Flexibility small entities might potentially apply. commented is relatively small, and FRA Assessment has been placed in the FRA notes that both of the small entities recognizes that there is likely to be docket for this rulemaking. that did comment are working with additional interest now that funds have larger governmental units or States been appropriated to the program. The C. Paperwork Reduction Act serving populations larger than 50,000. group of entities that provided Given these working relationships, FRA comments includes several States that The Paperwork Reduction Act of 1995 believes that is reasonable that a larger expressed support for the small (44 U.S.C. 3501 et seq.) addresses the governmental unit or State would jurisdictions they govern. These collection of information by the Federal provide assistance or other resources in comments indicate that the State would government from individuals, small applying for the grants. assist with the grant application, businesses and State and local FRA notes that of the $20,040,200 (of reducing the rule’s impact on small governments and seeks to minimize the the $350 million authorized) that was entities. Other provisions of the rule burdens such information collection appropriated in FY 2008, $5,135,200 also mitigate the rule’s impact on all requirements might impose. A consists of non-competitive (non- entities, including small entities. One of collection of information includes discretionary) grants. Nine separate these provisions is permitting the grant providing answers to identical questions projects were identified in the applicant to request a meeting with the posed to, or identical reporting or Conference Report accompanying the FRA Associate Administrator for record-keeping requirements imposed Transportation, Housing and Urban Railroad Development (or his/her on ten or more persons, other than Development and Related Agencies designee), thus facilitating the agencies, instrumentalities, or Appropriations Act, 2008, included as application process. It should also be employees of the United States. This Division K of the Consolidated noted that participation in the local rail final rule contains information Appropriations Act, 2008 (Pub. L. No. line relocation and improvement requirements that would apply to States 101–161). Of the nine projects projects capital grants program is or political subdivisions of States that identified, three of the communities are voluntary. The statute requires a State or file applications for Federal funding for considered small entities: The cities of other non-Federal entity to provide at local rail line relocation and Pierre, SD, population 14,095, Barron, least ten percent of the shared cost of a improvement projects. WI, population 3,162 and Adams project funded under this program. To County, CO, population 47,475. The city the extent a small entity was providing The information collection of Terre Haute, IN, population of 56,893 that non-Federal share, the impact requirements in this final rule have been exceeds the small governmental would be considered by the small entity submitted for approval to the Office of threshold, but is near it. Similar to the in deciding whether to file an Management and Budget (OMB) under small entities that commented, these application under the program. the Paperwork Reduction Act of 1995, two cities and one county would in all FRA views it as unlikely that a small 44 U.S.C. 3501 et seq. The sections that likelihood be working with larger entity such as a local government would contain the new information collection governmental units or States serving be disproportionately impacted by the requirements and the estimated time to populations larger than 50,000. rule. The capital grants for the rail line fulfill each requirement are as follows:

Respond- Total CFR Section—49 ent annual Average time per Total annual Total annual universe responses response burden hours burden cost

262.11—Application Process ...... 50 States 18 applications ...... 580 hours/290 hours .. 7,830 1 $0 —Requests for Meeting with FRA ...... 50 States 5 requests ...... 30 minutes ...... 3 129 —Meeting Discussions ...... 50 States 5 meetings ...... 2 hours ...... 10 730 262.15—Environmental Assessment ...... 50 States 18 documents ...... 200 hours ...... 3,600 158,760 —Consultations with FRA before a State be- 50 States 9 consultation ...... 2 hours ...... 18 1,314 gins environmental or historic preservation analysis. 262.17—Combining Grant Awards ...... 50 States 1 agreement ...... 10 hours ...... 10 730 262.19—Close-Out Procedures ...... 50 States 18 documents ...... 6 hours ...... 108 4,644 —Inspection of All Construction Report ...... 50 States 18 reports ...... 80 hours ...... 1,440 105,120 1 Cost incl. in RIA.

All estimates include the time for should direct them to the Office of OMB is required to make a decision reviewing instructions; searching Management and Budget, 725 17th St., concerning the collection of information existing data sources; gathering or NW., Washington, DC 20503, attn: FRA requirements contained in this final rule maintaining the needed data; and Desk Officer. Comments may also be between 30 and 60 days after reviewing the information. sent to the Office of Information and publication of this document in the Organizations and individuals Regulatory Affairs (OIRA) at OMB via e- Federal Register. Therefore, a comment desiring to submit comments on the mail at the following address: to OMB is best assured of having its full collection of information requirements [email protected].

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effect if OMB receives it within 30 days final rule directs how Federal funds will not result in the expenditure by state, of publication. go to the States, and thus, there are no local, or tribal governments, in the FRA is not authorized to impose a federalism implications. aggregate, of $132,300,000 or more in penalty on persons for violating F. Unfunded Mandates Reform Act of any one year, and thus preparation of information collection requirements such a statement is not required. which do not display a current OMB 1995 control number, if required. FRA Pursuant to section 201 of the G. Energy Impact intends to obtain current OMB control Unfunded Mandates Reform Act of 1995 numbers for any new information (Pub. L. 104–4, 2 U.S.C. 1531), each Executive Order 13211 requires collection requirements resulting from Federal agency ‘‘shall, unless otherwise Federal agencies to prepare a Statement this rulemaking action prior to the prohibited by law, assess the effects of of Energy Effects for any ‘‘significant effective date of the final rule. The OMB Federal regulatory actions on state, energy action.’’ See 66 FR 28355 (May control number, when assigned, will be local, and tribal governments, and the 22, 2001). Under the Executive Order a announced by separate notice in the private sector (other than to the extent ‘‘significant energy action’’ is defined as Federal Register. that such regulations incorporate any action by an agency that requirements specifically set forth in promulgates or is expected to lead to the D. Environmental Impact law).’’ Section 202 of the Act (2 U.S.C. promulgation of a final rule or FRA has evaluated these regulations 1532) further requires that ‘‘before regulation, including notices of inquiry, in accordance with its procedures for promulgating any general notice of advance notices of proposed ensuring full consideration of the proposed rulemaking that is likely to rulemaking, and notices of proposed potential environmental impacts of FRA result in the promulgation of any rule rulemaking: (1)(i) That is a significant actions, as required by the National that includes any Federal mandate that regulatory action under Executive Order Environmental Policy Act (42 U.S.C. may result in the expenditure by state, 12866 or any successor order, and (ii) is 4321 et seq.) (NEPA) and related local, and tribal governments, in the likely to have a significant adverse effect directives (see FRA Policy Statement on aggregate, or by the private sector, of on the supply, distribution, or use of Procedures for Considering $132,300,000 or more (adjusted Environmental Impacts, 64 Fed.Reg. annually for inflation) in any 1 year, and energy; or (2) that is designated by the 28545). FRA has concluded that the before promulgating any final rule for Administrator of the Office of issuance of this final rule, which which a general notice of proposed Information and Regulatory Affairs as a establishes regulations governing the rulemaking was published, the agency significant energy action. FRA has awarding of grants for local rail line shall prepare a written statement’’ evaluated this final rule in accordance relocation and improvement projects, detailing the effect on state, local, and with Executive Order 13211. FRA has does not have a potential impact on the tribal governments and the private determined that this final rule is not environment and does not constitute a sector. likely to have a significant adverse effect major Federal action requiring an There are no ‘‘regulatory actions’’ on the supply, distribution, or use of environmental assessment or contemplated within the meaning of the energy. Consequently, FRA has environmental impact statement. Unfunded Mandates Reform Act of determined that this final rule is not a Because all projects undertaken with 1995. One of the purposes of the ‘‘significant energy action’’ within the grants administered under this section Unfunded Mandates Reform Act of 1995 meaning of the Executive Order. will involve Federal funding, is ‘‘to end the imposition, in the absence appropriate NEPA analyses, including of full consideration by Congress, of H. Privacy Act Statement studies of any potential environmental Federal mandates on State, local, and Anyone is able to search the justice issues, will be undertaken in tribal governments without adequate connection with individual project Federal funding[.]’’ 2 U.S.C. 1501(2). electronic form of all comments approvals. The statute which authorizes this grant received into any of DOT’s dockets by program does not fall into the category the name of the individual submitting E. Federalism Implications of an unfunded mandate because it does the comment (or signing the comment, FRA has analyzed this final rule in not contain any mandates (applicants if submitted on behalf of an association, accordance with the principles and freely choose whether to apply for business, labor union, etc). You may criteria contained in Executive Order grants) nor is the statute ‘‘legislation review DOT’s complete Privacy Act 13132, issued on August 4, 1999, which containing significant Federal Statement published in the Federal directs Federal agencies to exercise great intergovernmental mandates without Register on April 11, 2000 (Volume 65, care in establishing policies that have providing adequate funding to comply Number 70, Pages 19477–78) or you federalism implications. See 64 FR with such mandates[.]’’ 2 U.S.C. may visit http://www.dot.gov/ 42355. This final rule will not have a 1501(6); 49 CFR 20154. If Congress does privacy.html. substantial effect on the States, on the not appropriate funds for the program, relationship between the national then no grants will be made. If Congress List of Subjects in 49 CFR Part 262 government and the States, or on the does appropriate funds, as it has for FY Grants and rail line relocation and distribution of power and 2008, then grant applications will be improvement projects. responsibilities among various levels of requested and presumably grant monies government. This final rule will not will be disbursed. V. The Final Rule have federalism implications that The only requirements in this final impose any direct compliance costs on rule for funding other than grant funds I For the reasons discussed in the state and local governments. There will provided to state and local governments preamble, the Federal Railroad be costs associated with the submission is the ten percent matching requirement. Administration is adding Part 262 to of applications, but they are That requirement, however, is Title 49, Code of Federal Regulations to discretionary and will only be incurred specifically set forth in § 9002 of read, as follows: should a state or local government wish SAFETEA–LU and FRA need not assess to apply for funding. Otherwise, this its effect. This final rule, therefore, will

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PART 262—IMPLEMENTATION OF Improvement means repair or fiscal year 2006 based on the materials PROGRAM FOR CAPITAL GRANTS enhancement to existing rail and supplies component from the all- FOR RAIL LINE RELOCATION AND infrastructure, or construction of new inclusive index of the AAR Railroad IMPROVEMENT PROJECTS rail infrastructure, that results in Cost Indexes. improvements to the efficiency of the Table of Contents for Part 262 rail system and the safety of those § 262.7 Eligibility. Sec. affected by the system. (a) A State is eligible for a grant from 262.1 Purpose. Non-Federal Share means the portion FRA under this section for any 262.3 Definitions. of the allowable cost of the local rail construction project for the 262.5 Allocation requirements. line relocation or improvement project improvement of the route or structure of 262.7 Eligibility. that is being paid for through cash or in- a rail line that either: 262.9 Criteria for selection of projects. kind contributions by a State or other (1) Is carried out for the purpose of 262.11 Application process. mitigating the adverse effects of rail 262.13 Matching requirements. non-Federal entity or any combination 262.15 Environmental assessment. thereof. traffic on safety, motor vehicle traffic 262.17 Combining grant awards. Private Entity means any domestic or flow, community quality of life, or 262.19 Close-out procedures. foreign nongovernmental for-profit or economic development; or (2) Involves a lateral or vertical Authority: 49 U.S.C. 20154 and 49 CFR not-for-profit organization. 1.49. Project means the local rail line relocation of any portion of the rail line. relocation or improvement for which a (b) Only costs associated with § 262.1 Purpose. grant is requested under this section. construction as defined in § 262.3 will The purpose of this part is to carry out Quality of Life means the level of be considered allowable costs. the statutory mandate set forth in 49 social, environmental and economic § 262.9 Criteria for selection of projects. U.S.C. 20154 requiring the Secretary of satisfaction and well being a community Transportation to promulgate experiences, and includes factors such Applicants must submit evidence regulations implementing a capital as first responders’ emergency response sufficient for the FRA to determine grants program to provide financial time, impact on emergency services, whether projects proposed for Federal assistance for local rail line relocation accessibility to the disabled as required investment are cost-effective in terms of and improvement projects. under the Americans with Disabilities the benefits achieved in relation to the Act and section 504 of the funds expended. To that end, the FRA § 262.3 Definitions. Rehabilitation Act of 1973 (as will consider the anticipated public and Administrator means the Federal amended), school access, safety, traffic private benefits associated with each Railroad Administrator, or his or her delay and congestion, the environment, rail line relocation or improvement delegate. grade crossing safety, and noise levels. project. In evaluating applications, FRA Allowable Costs means those project Real Property means land, including will consider the following factors in costs for which Federal funding may be land improvements, structures and determining whether to grant an award expended under this part. Only appurtenances thereto, excluding to a State under this part. construction and construction-related movable machinery and equipment. (a) The capability of the State to fund costs will be allowable. Relocation means moving a rail line the rail line relocation project without Construction means supervising, vertically or laterally to a new location. Federal grant funding; inspecting, demolition, actually Vertical relocation refers to raising (b) The requirement and limitation building, and incurring all costs above the current ground level or relating to allocation of grant funds incidental to building a project sinking below the current ground level provided in § 262.5; described in § 262.9 of this part, a rail line. Lateral relocation refers to (c) Equitable treatment of various including bond costs and other costs moving a rail line horizontally to a new regions of the United States; related to the issuance of bonds or other location. (d) The effects of the rail line, debt financing instruments and costs Secretary means the Secretary of relocated or improved as proposed, on incurred by the Grantee in performing Transportation. motor vehicle and pedestrian traffic, project related audits, and includes: State except as used in § 262.17, safety, community quality of life, and (1) Locating, surveying, and mapping; means any of the fifty United States, a area commerce; (2) Track and related structure political subdivision of a State, and the (e) The effects of the rail line, installation, restoration, and District of Columbia. In § 262.17, State relocated as proposed, on the freight rail rehabilitation; means any of the fifty United States and and passenger rail operations on the (3) Acquisition of rights-of-way; the District of Columbia. line; (4) Relocation assistance, acquisition Tangible personal property means (f) Any other factors FRA determines of replacement housing sites, and property, other than real property, that to be relevant to assessing the acquisition and rehabilitation, has a physical existence and an intrinsic effectiveness and/or efficiency of the relocation, and construction of value, including machinery, equipment grant application in achieving the goals replacement housing; and vehicles. of the national program, including the (5) Elimination of obstacles and level of commitment of non-Federal relocation of utilities; and § 262.5 Allocation requirements. and/or private funds to a project and the (6) Any other activities as defined by At least fifty percent of all grant funds anticipated public and private benefits. FRA, including architectural and awarded under this section out of funds engineering costs, and costs associated appropriated for a fiscal year shall be § 262.11 Application process. with compliance with the National provided as grant awards of not more (a) All grant applications for Environmental Policy Act, National than $20,000,000 each. Designated, opportunities funded under this Historic Preservation Act, and related high-priority projects will be excluded subsection must be submitted to FRA statutes, regulations, and orders. from this allocation formula. FRA will through www.grants.gov. Opportunities FRA means the Federal Railroad adjust the $20,000,000 amount to reflect to apply will be posted by FRA on Administration. inflation for fiscal years beginning after www.grants.gov only after funds have

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been appropriated for Capital Grants for contributions or commitments from § 262.17 Combining grant awards. Rail Line Relocation Projects. The private entities involved with the Two or more States, but not political electronic posting will contain all of the project in proportion to the expected subdivisions of States, may, pursuant to information needed to apply for the benefits determined under § 262.11(b) an agreement entered into by the States, grant, including required supporting that accrue to such entities from the combine any part of the amounts documentation. project. provided through grants for a project (b) In addition to the information under this section provided: § 262.15 Environmental assessment. required with an individual application, (1) The project will benefit each of the a State must submit a description of the (a) The provision of grant funds by States entering into the agreement; and anticipated public and private benefits FRA under this Part is subject to a (2) The agreement is not a violation of associated with each rail line relocation variety of environmental and historic the law of any such State. or improvement project described in preservation statutes and implementing § 262.7(a)(1) and (2) and the State’s regulations including, but not limited § 262.19 Close-out procedures. assessment of how those benefits to, the National Environmental Policy (a) Thirty days before the end of the outweigh the costs of the proposed Act (NEPA) (42 U.S.C. 4332 et seq.), grant period, FRA will notify the State project. The determination of such Section 4(f) of the Department of that the period of performance for the benefits shall be developed in Transportation Act (49 U.S.C. 303(c)), grant is about to expire and that close- consultation with the owner and user of the National Historic Preservation Act out procedures will be initiated. the rail line being relocated or improved (16 U.S.C. 470(f)), and the Endangered (b) Within 90 days after the expiration or other private entity involved in the Species Act (16 U.S.C. 1531). or termination of the grant, the State project. The State should also identify Appropriate environmental and historic must submit to FRA any or all of the any financial contributions or documentation must be completed and following information, depending on commitments it has secured from approved by the Administrator prior to the terms of the grant: private entities that are expected to a decision by FRA to approve a project (1) Final performance or progress benefit from the proposed project. for physical construction. FRA’s report; (c) Potential applicants may request a ‘‘Procedures for Considering (2) Financial Status Report (SF–269) meeting with the FRA Associate Environmental Impacts,’’ as posted at or Outlay Report and Request for Administrator for Railroad Development http://www.fra.dot.gov/us/content/252, Reimbursement for Construction or his designee to discuss the nature of the NEPA regulation of the Council on Programs (SF–271); the project being considered. Environmental Quality (40 CFR part (3) Final Request for Payment (SF– § 262.13 Matching requirements. 1500) and the Advisory Council on 270); Historic Preservation Protection of (4) Patent disclosure (if applicable); (a) A State or other non-Federal entity Historic Properties regulation (36 CFR (5) Federally-owned Property Report shall pay at least ten percent of the part 800) will govern FRA’s compliance (if applicable) construction costs of a project that is with applicable environmental and (c) If the project is completed, within funded in part by the grant awarded historic preservation review 90 days after the expiration or under this section. requirements. (b) The non-Federal share required by termination of the grant, the State shall paragraph (a) of this section may be paid (b) States have two options for complete a full inspection of all in cash or in-kind. In-kind contributions proceeding with environmental/historic construction work completed under the that are permitted to be counted under preservation reviews. A State may file grant and submit a report to FRA. If the this section are as follows: an application under subsection project is not completed, the State shall (1) A contribution of real property or § 262.11 seeking funds for preliminary submit a report detailing why the tangible personal property (whether design and environmental/historic project was not completed. provided by the State or a person for the preservation compliance for a (d) FRA will review all close-out state) needed for the project; potentially eligible project and FRA will information submitted, and adjust (2) A contribution of the services of review and decide on the application as payments as necessary. If FRA employees of the State or other non- outlined in this Part. Alternatively, a determines that the State is owed Federal entity or allowable costs, State may proceed with and fund any additional funds, FRA will promptly calculated on the basis of costs incurred costs associated with environmental/ make payment to the State for any by the State or other non-Federal entity historic preservation reviews (including unreimbursed allowable costs. If the for the pay and benefits of the environmental assessments and State has received more funds than the employees, but excluding overhead and categorical excisions, but not total allowable costs, the State must general administrative costs; environmental impact statements since immediately refund to the FRA any (3) A payment of any allowable costs there are restrictions on what types of balance of unencumbered cash that were incurred for the project before entities can manage an environmental advanced that is not authorized to be the filing of an application for a grant impact statement) and seek retained for use on other grants. for the project under this part, and any reimbursement from FRA for these costs (e) FRA will notify the State in in-kind contributions that were made to the extent they otherwise qualify as writing that the grant has been closed for the project before the filing of the allowable costs if FRA later approves out. application; if and to the extent that the the project for physical construction and Issued in Washington, DC, on June 24, costs were incurred or in-kind enters into a grant agreement with the 2008. contributions were made, as the case State. If a State pays for the compliance Joseph H. Boardman, may be, to comply with a provision of work itself, it may apply this cost to the Federal Railroad Administrator. a statute required to be satisfied in order 10% matching requirement if a grant is to carry out the project. awarded. Applicants should consult Note: THIS APPENDIX WILL NOT (c) In determining whether to approve with FRA before beginning any APPEAR IN THE CODE OF FEDERAL an application, FRA will consider the environmental or historic preservation REGULATIONS. feasibility of seeking financial analysis. BILLING CODE 4910–06–P

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Appendix A to Part 262—FRA Regional Boundaries

[FR Doc. E8–15160 Filed 7–10–08; 8:45 am] BILLING CODE 4910–06–C

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DEPARTMENT OF TRANSPORTATION In addition, a copy of the petition for registered importer (RI) or by a person reconsideration must be submitted to who has executed a contract with an RI National Highway Traffic Safety the docket number cited in the heading to bring the vehicle into compliance Administration above by any of the following methods: with all applicable FMVSS. For vehicles • Federal eRulemaking Portal: Go to that are imported in this fashion, a DOT 49 CFR Part 594 http://www.regulations.gov. Follow the conformance bond (Form HS–474), in online instructions for submitting an amount equivalent to 150 percent of [Docket No. NHTSA–2007–0037; Notice 2] information. the declared value of the vehicle, must • Mail Addressed to: Docket be furnished to CBP at the time of RIN 2127–AK10 Management Facility, U.S. Department importation to ensure that the necessary Schedule of Fees Authorized by 49 of Transportation, 1200 New Jersey modifications are completed within 120 U.S.C. 30141 Offer of Cash Deposits or Avenue, SE., West Building, Ground days from the date of entry or, if Obligations of the United States in Lieu Floor, Room W12–140, Washington, DC conformance is not achieved, for the of Sureties on DOT Conformance 20590–0001. vehicle to be delivered to the Secretary • Bonds Hand Delivery or Courier: West of Homeland Security for export at no Building Ground Floor, Room W12–140, cost to the United States, or for the AGENCY: National Highway Traffic 1200 New Jersey Avenue, SE., between vehicle to be abandoned to the United Safety Administration (NHTSA), DOT. 9 a.m. and 5 p.m. Eastern Time, Monday States. See 49 CFR 591.6(c). The DOT ACTION: Final rule. through Friday, except for Federal conformance bond must be holidays. underwritten by a surety that possesses SUMMARY: This document amends • Fax: 202–493–2251. a certificate of authority to underwrite Federal bonds. See 49 CFR 591.8(c), NHTSA’s regulations that prescribe fees FOR FURTHER INFORMATION CONTACT: For authorized by 49 U.S.C. Sec. 30141 for non-legal issues: Coleman Sachs, Office referencing a list of certificated sureties various functions performed by the of Vehicle Safety Compliance, National at 54 FR 27800, June 30, 1989. In lieu of sureties on a DOT agency with respect to the importation Highway Traffic Safety Administration, conformance bond, an importer may of motor vehicles that are not originally 1200 New Jersey Avenue, SE., offer United States money, United States manufactured to conform to all Washington, DC 20590 (202–366–3151). bonds (except for savings bonds), applicable Federal motor vehicle safety For legal issues: Michael Goode, Office and bumper standards. An importer United States certificates of of Chief Counsel, National Highway indebtedness, Treasury notes, or must file with U.S. Customs and Border Traffic Safety Administration, 1200 New Protection (CBP) a Department of Treasury bills (hereinafter referred to as Jersey Avenue, SE., Washington, DC ‘‘cash deposits’’) in an amount equal to Transportation (DOT) conformance 20590 (202–366–5238). bond at the time that a nonconforming the amount of the bond. See 49 CFR motor vehicle is offered for importation SUPPLEMENTARY INFORMATION: 591.10(a). into the United States, or in lieu of such I. Introduction As stated in the NPRM, in recent a bond, the importer may post cash years some RIs have encountered As described in the notice of deposits or obligations of the United difficulty in obtaining DOT proposed rulemaking (NPRM), subject to States to ensure that the vehicle will be conformance bonds underwritten by certain exceptions, 49 U.S.C. 30112(a) brought into conformance with all certificated sureties. To achieve the prohibits any person from importing applicable standards within 120 days entry of the nonconforming vehicles into the United States a motor vehicle from the date of importation, or will be they have sought to import, these RIs manufactured on or after the date that exported from, or abandoned to, the have had to resort to furnishing NHTSA an applicable Federal motor vehicle United States. To avoid the costs of a with cash deposits in lieu of sureties on safety standard (FMVSS) takes effect DOT conformance bond, some importers a DOT conformance bond. Other RIs unless the vehicle complies with the have attempted to post cash deposits, have attempted to post cash deposits to standard and is so certified by its which would relieve the importers of avoid the cost of procuring a DOT manufacturer. 72 FR 65532 (November the bonding costs, but cause the agency conformance bond. The receipt, 21, 2007). One of the exceptions to this to expend considerable resources. The processing, handling, and disbursement prohibition is found in 49 U.S.C. 30141. amendments adopted today establish a of the cash deposits that have been That section permits an importer that is fee of $459.00 that will permit the tendered by RIs have caused the agency registered with NHTSA (a ‘‘registered government to recover all the direct and to consume a considerable amount of importer’’) to import a motor vehicle indirect costs incurred by the agency in staff time and material resources. that was not originally manufactured to processing cash deposits or obligations conform to all applicable FMVSS, III. Fees Authorized by 49 U.S.C. 30141 of the United States that are furnished provided NHTSA has decided that the As detailed in the NPRM, NHTSA is in lieu of a DOT conformance bond. vehicle is eligible for importation. authorized under 49 U.S.C. 30141(a)(3) DATES: Effective date: The effective date Under the criteria that are specified in to establish an annual fee requiring RIs for this final rule is October 1, 2008. section 30141 for these decisions, a to pay for the costs of carrying out the Petitions for reconsideration: Petitions motor vehicle is not eligible for RI program. The agency is also for reconsideration of this final rule importation unless, among other things, authorized under this section to must be received by NHTSA not later it is capable of being altered to comply establish fees to pay for the costs of than August 25, 2008. with all applicable FMVSS. See 49 processing the conformance bonds that ADDRESSES: Petitions for reconsideration U.S.C. 30141(a)(1)(A)(iv) and (B). RIs provide, and fees to pay for the costs of this final rule must refer to the docket of making agency decisions relating to II. Requirements for Bonding and notice numbers set forth above and the importation of noncomplying motor be submitted to the Administrator, Once NHTSA decides that a motor vehicles and equipment. National Highway Traffic Safety vehicle is eligible for importation, a Because NHTSA’s acceptance of the Administration, 1200 New Jersey vehicle of the same make, model, and cash deposits is a necessary predicate to Avenue, SE., Washington, DC 20590. model year can be imported by a the release of the vehicle into the

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commerce of the United States, NHTSA the authority of 49 U.S.C. 30141 on the an additional 15 minutes to go to the has concluded that the expense incurred basis of all direct and indirect costs bank, wait for a cashier’s check payable by the agency to receive, process, incurred by the agency in performing to the importer to be drawn, and return handle, and disburse cash deposits may the function for which the fee is to the office once the agency receives be treated as part of the bond processing charged. In the Federal Register notice satisfactory evidence that all necessary cost, for which NHTSA is authorized to proposing the original schedule of fees conformance modifications have been set a fee under 49 U.S.C. 30141(a)(3)(A). that was adopted in Part 594, the agency performed on the vehicle for which the Even if such authority did not exist in observed that this approach was cash deposit was made. As a result, the Chapter 301 of Title 49, U.S. Code, the consistent with the manner in which total amount of staff time needed to Independent Offices Appropriation Act other agencies have computed user fees accomplish these tasks has been of 1952, 31 U.S.C. Sec. 9701, provides under the Independent Offices reduced from 2 hours to 30 minutes. ample authority for NHTSA to impose Appropriation Act, 31 U.S.C. 9701, and Calculating the charge for this time at fees that are sufficient to recover the the Consolidated Omnibus Budget the rate of $92.64 per hour, this will agency’s full costs to receive, process, Reconciliation Act, Public Law 99–272. result in a reduction of $138.96 from the handle, and disburse cash deposits. By See 54 FR 17792, 17793 (April 25, $598.00 fee originally proposed. performing these tasks, NHTSA is 1989). NHTSA specified in the 1989 Accounting for this difference, performing a specific service for an NPRM proposing rules for the RI NHTSA is adopting a fee of $459.00 to identifiable beneficiary that can form program that ‘‘the fees imposed by Part recover the costs it incurs for each the basis for the imposition of a fee 594 would include the agency’s best vehicle imported during FY 2009, for under 31 U.S.C. Sec. 9701. Courts have direct and indirect cost estimates of the which the importer or RI submits a cash long recognized that Federal agencies man-hours involved in each activity, on deposit in lieu of a DOT conformance may impose fees under section 9701 for both the staff and supervisory levels, the bond. This fee will have to be tendered providing comparable services to costs of computer and word processor with each cash deposit submitted to the regulated entities. See, e.g., Seafarers usage, costs attributable to travel, salary, agency in lieu of sureties on a DOT International Union of North America v. and benefits, and maintenance of work conformance bond. The factors that the U.S. Coast Guard, 81 F.3d 179, 183 (D.C. space,’’ as appropriate for each fee. See agency has taken into account in Cir. 1996) (finding the Coast Guard 54 FR 17795 (April 25, 1989). establishing the fee, including time authorized to charge reasonable fees for Consistent with this approach, the expended by agency personnel, hourly processing applications for merchant agency considered its direct and rates for their services, and other direct mariner licenses, certificates, and work indirect costs in calculating the fee for and indirect costs, are detailed in a documents); Engine Manufacturers the review, processing, handling, and chart included in Appendix A of this Association v. E.P.A., 20 F.3d 1177, disbursement of cash deposits notice. 1180 (D.C. Cir. 1994) (finding the E.P.A. submitted by importers and RIs in lieu authorized to impose a fee to recover its of sureties on a DOT conformance bond. VI. Response to Comment costs for testing vehicles and engines for In the NPRM, the agency proposed a fee The NPRM solicited comments from compliance with the emission standards of $598.00 to recover the expenses the interested members of the public. One of the Clean Air Act); and National government incurs in the performance comment was submitted in response to Cable Television Association, Inc. v. of these functions. In computing this the NPRM. The substance of this F.C.C., 554 F.2d 1094, 1101 (D.C. Cir. proposed fee, the agency estimated that comment, which was submitted by an 1976) (finding the F.C.C. authorized to it would take 60 minutes of a RI, and the agency response to each impose fees for issuing certificates of government employee’s time to deliver point that it raised, are set forth below. compliance to cable television the funds provided by importers and RIs A. General Observations operators). In view of the language and to a bank for deposit in the agency’s judicial construction of 31 U.S.C. 9701, account and an additional 60 minutes to The comment, in general, disputed NHTSA is relying on this provision as withdraw those funds. This estimate whether the agency had accurately set an independent source of authority for was based on the need for the funds to forth in the analysis included in the the fee to cover the agency’s cost of be deposited in a non-interest bearing NPRM the direct and indirect costs of processing cash deposits. commercial account for which the processing cash deposits. The agency would not be charged any commenter expressed the opinion that IV. Fee for Processing Cash Deposits transactional fees. The bank in which some of the costs identified by the Although the fees described above the agency had established such an agency should be reduced or eliminated, have permitted NHTSA to recover the account was in downtown Washington, especially in circumstances where costs it incurs in administering certain DC, some distance from the DOT importers already understand the aspects of the RI program, other services Headquarters Building, requiring transit obligations associated with importing a that NHTSA provides to importers of time for the deposit and withdrawal to nonconforming motor vehicle, have nonconforming vehicles have gone be made. previously submitted cash deposits in unreimbursed. One such service is the Following publication of the NPRM, lieu of sureties on a DOT conformance receipt, processing, handling, and the agency was able to open a non- bond, and have entered into formal disbursement of cash deposits interest bearing commercial account for agreements with the agency relating to submitted by importers and RIs in lieu which it will not be charged any those cash deposits in the past. of sureties on DOT conformance bonds. transactional fees at a bank in close In the NPRM, the agency stated that The amendments adopted in this final proximity to the new DOT Headquarters it considered its direct and indirect rule will permit the agency to collect a building in the Southeast Federal costs relating to administering cash fee to recover its costs in providing Center. Given the location of this bank, deposits for the purposes of calculating these services. the agency estimates that it will take 15 the proposed fee. As further stated in minutes of an employee’s time to bring the NPRM, the agency’s direct costs V. Fee Computation the importer’s cash deposit to the bank, included the estimated cost of As noted in the NPRM, NHTSA wait there for the transaction to be contractor and professional staff time computes the fees that it collects under completed, and return to the office and and direct costs including computer

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equipment and maintenance costs, facsimile. By doing so, the commenter the cash deposit and formal agreement telephone toll charges, and postage. To contended that the agency could reduce sent to the agency by an importer. present the best available information, the fee associated with this step in the As discussed above, the agency the agency included in the NPRM a process. provided an itemization of its direct and detailed itemization of each step in the In its analysis of the costs incurred by indirect costs associated with each step process for administering cash deposits, the agency for administering cash of the process of administering cash including the time spent by agency staff deposits, the agency identified three deposits. The agency attributed 10 on each step and the cost associated long-distance toll calls totaling $5.75 to minutes of contractor time to processing with each step. reimburse the government for its mail containing the importer’s cash We are aware that more or less staff expenses in transmitting the agreement deposit and delivering the cash deposit time may actually be spent on by facsimile to the importer for to agency staff. The agency attributed an processing a cash deposit in an signature and later notifying CBP and additional 5 minutes of contractor time individual circumstance, and that this the importer by letter that the to receiving mail containing the formal could be influenced by the experience importation of the vehicle may proceed. agreement executed by the importer and level of the importer. To be reasonable, While the commenter is correct that the delivering the signed agreement to the agency based its cost estimates on agreement could be emailed to the agency staff. The difference in the average time its staff spent time importer, the agency incurs computer processing time is attributable to accomplishing each step of the process time costs, and any difference in the additional controls associated with the and the direct and indirect costs costs associated with either method of handling of cash and cash equivalents. associated with each step. transmitting the agreement is de Because the contactor time expended on More specific observations raised in minimis. these two occasions is a direct cost the comment, and the agency’s incurred by the agency in administering D. Formal Agreement responses are set forth below. cash deposits, the agency is fully The commenter noted that NHTSA justified in obtaining reimbursement for B. Importer Obligations has already developed the language this expense. The commenter stated that the agency incorporated into the agreement and should not charge for time that it that the importer is only required to fill F. Approval of Formal Agreement expends in discussing with importers in blank spaces with identifying The commenter questioned whether it their obligations pertaining to cash information on itself and the in fact takes six government employees deposits. The commenter also asked nonconforming vehicle that it seeks to 70 minutes to prepare and approve the whether the agency would charge an enter. The commenter further noted that agreement. importer for this time even if the after the importer completes and signs As reflected in the first table in importer should ultimately decide not the agreement, it must be returned to the Appendix A to this notice, one to provide a cash deposit. agency for signature by an official government employee spends an We believe that importers must authorized to sign on the agency’s average of 20 minutes preparing a memo clearly understand their obligations behalf. In light of these formalities, the to transmit the formal agreement up the relating to the submission of cash commenter observes that the agency chain of command and three managers deposits before those importers enter should not charge the importer for the spend an average of no more than 10 into formal agreements with the agency. actions it takes at this step in the minutes each to review and forward the While agency personnel may expend process. agreement for the signature of the more time explaining those obligations In its analysis, the agency estimated NHTSA manager who is authorized by to a first time importer than to one who that it would take 10 minutes to prepare regulation to enter such agreements on has previously submitted cash deposits, the formal agreement for transmittal to the agency’s behalf. Four agency we believe that the average time shown the importer. This total includes staff employees are involved in this process in the analysis is reasonable. Naturally, time expended to locate and retrieve the and the total average time for all of these an importer could only be expected to agreement from a computer hard drive, steps is 50 minutes. Because this is pay the fee for the processing of cash to review the document and make any another direct cost incurred by the deposits if the importer actually submits changes to the agreement that may be agency in processing cash deposits, the a cash deposit to the agency. In required to accommodate the importer’s agency is fully justified in obtaining circumstances where the importer unique circumstances, to print out a reimbursement for this cost. discusses with the agency the prospect hard copy of the document, and to G. Importer Approval Letter of making a cash deposit, but ultimately otherwise prepare the document for elects not to submit one, there would be transmittal to the importer. Because The commenter questioned why the no basis for assessing a fee and the agency resources are expended at this agency would use its resources to create agency would not seek to collect one. step in the process for the benefit of an and mail a letter notifying the importer Nevertheless, in circumstances where individual importer, there is clear that the agency representative has the importer decides to go ahead and justification for the government to be signed the formal agreement and that make a cash deposit, the time expended reimbursed for those expenses. As noted the agency has authorized the entry of by the agency in discussing the in this analysis, the agency will not be the importer’s vehicle. The importer preliminaries with the importer is part charging importers for the time it stated that after both parties sign the of the transaction and is fairly originally expended to develop the formal agreement, the agency notifies compensable. agreement in the format now being CBP by letter that the importer’s vehicle used. may be imported. The commenter stated C. Toll Charges that in lieu of creating a separate letter The commenter observed that the E. Receipt and Transmittal of Cash to the importer, the agency could send agency could email the formal Deposits to the importer a courtesy copy of the agreement to the importer at no charge The commenter asked why the agency letter it sends to CBP and eliminate the rather than having to incur toll charges is charging for receiving in the mail and agency’s cost to create the importer’s by transmitting the agreement by transmitting to responsible agency staff, letter.

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The agency believes that when an transactional fees at a bank that is close Accordingly, the effective date of this importer enters into an agreement with, to the DOT Headquarters Building at the final rule is October 1, 2008. and sends a cash deposit to the Southeast Federal Center in VIII. Petitions for Reconsideration government, a proper practice is for the Washington, DC. This will reduce from agency to provide a written one hour to 15 minutes the time needed Petitions for reconsideration of this acknowledgment that the agreement is to deliver the importer’s cash deposit to final rule must be received by NHTSA in place and that the agency has the bank, and reduce from one hour to not later than the date specified in the deposited the importer’s cash deposit 15 minutes the time needed to withdraw ‘‘Dates: Petitions for reconsideration:’’ into the non-interest bearing that deposit once the agency receives heading at the beginning of this notice. commercial bank account the agency satisfactory evidence that all needed Petitions received after that date will be established for holding these funds. The conformance modifications have been considered petitions filed by interested letter provides the importer with a completed on the vehicle for which the persons to initiate rulemaking pursuant written record that its funds are in the cash deposit was made. On account of to 49 U.S.C. Chapter 301. The petition government’s hands. The agency would this reduction in staff time needed to must contain a brief statement of the be remiss in its responsibility as the process a cash deposit, the agency will complaint and an explanation as to why custodian of those funds if it were not be charging $459.00 for that processing, compliance with the final rule is not to provide the importer with this as opposed to the $598.00 it originally practicable, is unreasonable, or is not in acknowledgment. This is another proposed. the public interest. The statement and expense that the government is fully No other issues were raised in the one explanation together may not exceed 15 comment submitted in response to the justified to collect. pages in length, but necessary NPRM. As is evident from the above attachments may be appended to the H. Disbursement of Cash Deposits discussion, the agency has found no submission without regard to the 15- The commenter questioned why the basis in the issues that were raised in page limit. If it is requested that agency attributed 60 minutes of staff the comment to make any other changes additional facts be considered, the time to sending back to the importer a in the rule as originally proposed. check in the amount of the cash deposit. petitioner must state the reason why As part of the analysis for the fee VII. Statutory Basis for the Final Rule they were not presented to the proposed in the NPRM, the agency and Effective Date Administrator within the prescribed estimated that it would take one hour of NHTSA is required under 49 U.S.C. time. The Administrator does not the NHTSA finance manager’s time to 30141(e) to ‘‘review and make consider repetitive petitions and unless travel to the bank, be issued a check appropriate adjustments at least every 2 the Administrator otherwise provides, drawn on the agency’s account, and years in the amounts of the fees’’ the filing of a petition does not stay the return to DOT headquarters. The agency relating to the registration of importers, effective date of the final rule. stated in the NPRM that these tasks the processing of bonds, and making IX. Appendix A must be accomplished in person at the decisions concerning the importation of agency’s designated bank by the NHTSA nonconforming vehicles. The statute The following tables provide an official authorized to withdraw funds further requires the agency to ‘‘establish itemization of the time expended, from the agency’s bank account. As the fees for each fiscal year before the hourly rates, and direct and indirect explained in section V of this notice beginning of that year.’’ Fiscal Year costs associated with NHTSA’s receipt, under the heading ‘‘Fee Computation,’’ 2009 begins on October 1, 2008. In the handling, processing, and disbursement the agency has now opened a non- NPRM, we proposed to make this rule of cash deposits submitted to the agency interest bearing commercial account for effective October 1, 2008, and did not in lieu of sureties on DOT conformance which it will not be charged receive any comments on this issue. bonds:

RECEIPT, PROCESSING, AND HANDLING OF CASH DEPOSITS [CASH]

Time FY 07 FY 07 FY 08 FY 08 Step of process Staff * mins. rate cost rate cost

Cash received and delivered ...... C 10 $50.50 $8.42 $51.77 $8.63 Agreement obligations discussed with importer ...... E 10 89.88 14.98 92.64 15.44 Prepare formal agreement ...... E 10 89.88 14.98 92.64 15.44 Agreement faxed for importer’s signature ...... (1) ...... (1) Signed agreement received and delivered ...... C 5 50.50 4.21 51.77 4.31 Prepare agreement approval memo ...... E 20 89.88 29.96 92.64 30.88 Agreement review and signature ...... E 10 98.52 16.42 101.61 16.94 E 10 98.52 16.42 101.61 16.94 E 10 98.52 16.42 101.61 16.94 Prepare CBP letter approving vehicle entry ...... E 10 89.88 14.98 92.64 15.44 Fax CBP letter ...... (1) ...... (1) Prepare importer letter approving vehicle entry ...... E 10 89.88 14.98 92.64 15.44 Transmit letter to importer by fax ...... (1) ...... (1) Create database record ...... C 5 50.50 4.21 51.77 4.31 Prepare and deliver memo/cash to finance ...... E 10 89.88 14.98 92.64 15.44 Deposit cash in bank ...... E 15 89.88 22.47 92.64 23.16

Subtotal ...... 193.43 ...... 199.31 * Staff Notes: (C) is contractor and (E) is employee. 1 Toll charge.

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HANDLING AND DISBURSEMENT OF CASH DEPOSITS [CASH]

Time FY 07 FY 07 FY 08 FY 08 Step of process Staff * mins. rate cost rate cost

Importer notifies NHTSA that vehicle conformance obligations are met ...... E 10 $89.88 $14.98 $92.64 $15.44 Prepare memo requesting check to importer ...... E 10 89.88 14.98 92.64 15.44 Withdraw funds from bank by check ...... E 15 89.88 22.47 92.64 23.16 Deliver check ...... E 5 89.88 7.49 92.64 7.72 Notify NHTSA Finance Director ...... E 5 89.88 7.49 92.64 7.72 Prepare letter with check enclosure ...... E 10 89.88 14.98 92.64 15.44 Mail letter and check to importer ...... (1) ...... (1) Review monthly bank statements ...... E 5 89.88 7.49 92.64 7.72

Subtotal ...... 89.88 ...... 92.64 * Staff Notes: (C) is contractor and (E) is employee. 1 Postage.

OTHER DIRECT COSTS

Time Direct costs mins. FY 07 rate FY 07 cost FY 08 rate FY 08 cost

Computer and Computer Maintenance ...... 85 $1.86/hr $158.10 $1.86/hr $158.10 Postage ...... 3.00 3.00 3.00 3.00 Toll Calls (3) ...... 1.92 5.75 1.92 5.75

Subtotal ...... 166.85 ...... 166.85

Subtotals FY 07 cost FY 08 cost We have considered the impact of this B. Regulatory Flexibility Act rulemaking action under Executive Pursuant to the Regulatory Flexibility Subtotal ...... $193.43 $199.31 Order 12866 and the Department of Act (5 U.S.C. 601 et seq., as amended by Subtotal ...... 89.88 92.64 Transportation’s regulatory policies and Subtotal ...... 166.85 166.85 the Small Business Regulatory procedures. This rulemaking document Enforcement Fairness Act (SBFEFA) of Total ...... 450.16 458.80 was not reviewed by the Office of 1996), whenever an agency is required Management and Budget under to publish a notice of proposed Executive Order 12866. This rulemaking X. Rulemaking Analyses and Notices rulemaking or a final rule, it must action is also not considered to be prepare and make available for public A. Executive Order 12866 and DOT significant under the Department’s comment a regulatory flexibility Regulatory Policies and Procedures Regulatory Policies and Procedures (44 analysis that describes the effect of the Executive Order 12866, ‘‘Regulatory FR 11034; February 26, 1979). rule on small entities (i.e., small Planning and Review’’ (58 FR 51735, Based on the level of the fees and the businesses, small organizations, and October 4, 1993), provides for making volume of affected vehicles, NHTSA has small governmental jurisdictions). The determinations whether a regulatory concluded that the costs of the final rule Small Business Administration’s action is ‘‘significant’’ and therefore will be so minimal as not to warrant regulations at 13 CFR Part 121 define a subject to Office of Management and preparation of a full regulatory small business, in part, as a business Budget (OMB) review and to the evaluation. Because NHTSA’s entity ‘‘which operates primarily within requirements of the Executive Order. acceptance of the cash deposits is a the United States.’’ See 13 CFR The Order defines a ‘‘significant necessary predicate to the release of the § 121.105(a). No regulatory flexibility regulatory action’’ as one that is likely vehicle into the commerce of the United analysis is required if the head of an to result in a rule that may: States, NHTSA has concluded that the agency certifies that the rule would not (1) Have an annual effect on the expense incurred by the agency (the have a significant economic impact on economy of $100 million or more or subject of this rulemaking) to receive, a substantial number of small entities. adversely affect in a material way the process, handle, and disburse cash The SBREFA amended the Regulatory economy, a sector of the economy, deposits may be treated as part of the Flexibility Act to require Federal productivity, competition, jobs, the bond processing cost, for which NHTSA agencies to provide a statement of the environment, public health or safety, or is authorized to set a fee under 49 U.S.C. factual basis for certifying that a rule State, local, or Tribal governments or 3014(a)(3)(A). would not have a significant economic communities; This action does not involve any impact on a substantial number of small (2) Create a serious inconsistency or substantial public interest or entities. otherwise interfere with an action taken controversy. It has no substantial effect The agency has considered the effects or planned by another agency; upon State and local governments and of this rulemaking under the Regulatory (3) Materially alter the budgetary imposes no substantial impact upon a Flexibility Act, and certifies that the impact of entitlements, grants, user fees, major transportation safety program. A amendment it adopts will not have a or loan programs or the rights and regulatory evaluation analyzing the significant economic impact upon a obligations of recipients thereof; or economic impact of the final rule substantial number of small entities. (4) Raise novel legal or policy issues establishing the registered importer The following is NHTSA’s statement arising out of legal mandates, the program, adopted on September 29, providing the factual basis for the President’s priorities, or the principles 1989, was prepared, and is available for certification (5 U.S.C. 605(b)). The set forth in the Executive Order. review in the docket. adopted amendment will primarily

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affect entities that currently modify requirements of Section 6 of the G. Paperwork Reduction Act nonconforming vehicles and which are Executive Order do not apply to this Under the Paperwork Reduction Act small businesses within the meaning of rulemaking action. of 1995, a person is not required to the Regulatory Flexibility Act. Of the 67 D. National Environmental Policy Act respond to a collection of information such entities that are currently licensed by a Federal agency unless the with NHTSA, only a few have furnished NHTSA has analyzed this action for collection displays a valid OMB control the agency with cash deposits in lieu of purposes of the National Environmental number. The collection of information sureties on DOT conformance bonds. Policy Act. The action will not have a resulting from the RI program, including Despite the fact that they qualify as significant effect upon the environment 49 CFR Part 594, has been approved by small businesses, the agency has no OMB and assigned OMB Control No. reason to believe that these companies because it is anticipated that the annual 2127–0002, ‘‘Importation of Vehicles will be unable to pay the adopted fee. volume of motor vehicles imported and Equipment Subject to the Federal Moreover, consistent with prevailing through RIs would not vary significantly Motor Vehicle Safety, Bumper and Theft industry practices, the fee should be from that existing before promulgation Prevention Standards.’’ The expiration passed through to the ultimate of the rule. date is 11/30/2010. The clearance covers purchasers of any vehicle for which a E. Executive Order 12988 (Civil Justice 63,818 respondents, and is for 42,413 cash deposit in lieu of sureties is given Reform) to the agency. The cost to owners or hours. Today’s final rule only establishes a fee for a collection of purchasers of these vehicles may be Pursuant to Executive Order 12988 information that has already been expected to increase to the extent ‘‘Civil Justice Reform,’’ the agency has necessary to reimburse the RI for the fee approved by OMB, and does not affect considered whether the amendment the scope of the approved collection. payable to the agency for the cost of adopted in this final rule will have any processing a cash deposit. retroactive effect. NHTSA concludes H. Executive Order 13045 Governmental jurisdictions will not that the amendment will not have any Executive Order 13045 applies to any be affected at all since they are generally retroactive effect. Judicial review of this neither importers nor purchasers of rule that (1) is determined to be final rule may be obtained pursuant to nonconforming motor vehicles. ‘‘economically significant’’ as defined 5 U.S.C. 702. That section does not under E.O. 12866, and (2) concerns an C. Executive Order 13132 (Federalism) require that a petition for environmental, health, or safety risk that Executive Order 13132 on reconsideration be filed prior to seeking NHTSA has reason to believe may have ‘‘Federalism’’ requires NHTSA to judicial review. a disproportionate effect on children. If the regulatory action meets both criteria, develop an accountable process to F. Unfunded Mandates Reform Act of we must evaluate the environmental ensure ‘‘meaningful and timely input by 1995 State and local officials in the health or safety effects of the planned development of regulatory policies that Section 202 of the Unfunded rule on children, and explain why the have Federalism implications.’’ Mandates Reform Act of 1995 (UMRA) planned rule is preferable to other Executive Order 13132 defines the term requires agencies to prepare a written potentially effective and reasonably ‘‘policies that have federalism assessment of the costs, benefits, and feasible alternatives considered by us. implications’’ to include regulations other effects of proposed or final rules This rulemaking is not economically that have ‘‘substantial direct effects on that include a Federal mandate likely to significant and does not concern an the States, on the relationship between result in the expenditure by State, local, environmental, health, or safety risk that the national government and the States, or tribal governments, in the aggregate, will have a disproportionate effect on or on the distribution of power and or by the private sector, of more than children. It therefore is not subject to responsibilities among the various $100 million annually (adjusted for the Executive Order. levels of government.’’ Under Executive inflation with the base year of 1995). I. National Technology Transfer and Order 13132, NHTSA may not issue a Before promulgating a rule for which a Advancement Act regulation that has federalism written assessment is needed, section implication, that imposes substantial Section 12(d) of the National 205 of the UMRA generally requires direct compliance costs, and that is not Technology Transfer and Advancement NHTSA to identify and consider a required by statute, unless the Federal Act of 1995 (NTTAA), Public Law 104– government provides the funds reasonable number of regulatory 113 (15 U.S.C. 272) directs NHTSA to necessary to pay the direct compliance alternatives and to adopt the least use voluntary consensus standards in its costs incurred by State and local costly, most cost-effective, or least regulatory activities unless doing so governments, or NHTSA consults with burdensome alternative that achieves would be inconsistent with applicable State and local officials early in the the objectives of the rule. The law or otherwise impractical. Voluntary process of developing the proposed provisions of section 205 do not apply consensus standards are technical regulation. when they are inconsistent with standards (e.g., materials specifications, The amendment adopted in this final applicable law. Moreover, section 205 test methods, sampling procedures, and rule will not have substantial direct allows NHTSA to adopt an alternative business practices) that are developed or effects on the States, on the relationship other than the least costly, most cost- adopted by voluntary consensus between the national government and effective, or least burdensome standards bodies, such as the Society of the States, or on the distribution of alternative if the agency publishes with Automotive Engineers (SAE). The power and responsibilities among the the final rule an explanation why that NTTAA directs the agency to provide various levels of government as alternative was not adopted. Because Congress, through the OMB, with specified in Executive Order 13132. this final rule does not require the explanations when we decide not to use That is because this final rule applies to expenditure of resources beyond $100 available and applicable voluntary importers of motor vehicles and million annually, this action is not consensus standards. registered importers, and not to State or subject to the requirements of sections After conducting a search of available local governments. Thus, the 202 and 205 of the UMRA. sources, we have concluded that there

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are no voluntary consensus standards in the heading on the first page of this § 594.9 Fee for reimbursement of bond applicable to this final rule. document to find this action in the processing costs and costs for processing Unified Agenda. offers of cash deposits or obligations of the J. Privacy Act United States in lieu of sureties on bonds. List of Subjects in 49 CFR Part 594 Anyone is able to search the * * * * * electronic form of all submissions Administrative practice and (d) Each importer must pay a fee received into any of our dockets by the procedure, Imports, Motor vehicle based upon the direct and indirect costs name of the individual submitting the safety. the agency incurs for receipt, comment or petition (or signing the I In consideration of the foregoing, part processing, handling, and disbursement comment or petition, if submitted on 594, Schedule of Fees Authorized by 49 of cash deposits or obligations of the behalf of an association, business, labor U.S.C. 30141, in Title 49 of the Code of United States in lieu of sureties on union, etc.). You may review DOT’s Federal Regulations is amended as bonds that the importer submits as complete Privacy Act Statement in the follows: authorized by § 591.10 of this chapter in Federal Register published on April 11, lieu of a conformance bond required 2000 (Volume 65, Number 70; Pages PART 594—SCHEDULE OF FEES under § 591.6(c) of this chapter. AUTHORIZED BY 49 U.S.C. 30141 19477–78). (e) The fee for each vehicle imported K. Regulation Identifier Number (RIN) I 1. The authority citation for part 594 on and after October 1, 2008, for which continues to read as follows: cash deposits or obligations of the The Department of Transportation United States are furnished in lieu of a assigns a regulation identifier number Authority: 49 U.S.C. 30141, 31 U.S.C. 9701; delegation of authority at 49 CFR 1.50. conformance bond, is $459.00. (RIN) to each regulatory action listed in the Unified Agenda of Federal I 2. Section 594.9 is amended by: Issued on: June 25, 2008. Regulations. The Regulatory Information I a. Revising the section heading; Nicole R. Nason, Service Center publishes the Unified I b. Adding paragraph (d); and Administrator. Agenda in April and October of each I c. Adding paragraph (e) to read as [FR Doc. E8–14858 Filed 7–10–08; 8:45 am] year. You may use the RIN that appears follows: BILLING CODE 4910–59–P

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Proposed Rules Federal Register Vol. 73, No. 134

Friday, July 11, 2008

This section of the FEDERAL REGISTER • U.S. EPA Region 6 Contact Us Web comment due to technical difficulties contains notices to the public of the proposed site: http://epa.gov/region6/ and cannot contact you for clarification, issuance of rules and regulations. The r6coment.htm. Please click on 6PD EPA may not be able to consider your purpose of these notices is to give interested (Multimedia) and select Air before comment. Electronic files should avoid persons an opportunity to participate in the submitting comments. the use of special characters, any form rule making prior to the adoption of the final • rules. E-mail: Mr. Guy Donaldson at of encryption, and be free of any defects [email protected]. Please also or viruses. send a copy by email to the person Docket: All documents in the docket ENVIRONMENTAL PROTECTION listed in the FOR FURTHER INFORMATION are listed in the http:// AGENCY CONTACT section below. www.regulations.gov index. Although • Fax: Mr. Guy Donaldson, Chief, Air listed in the index, some information is 40 CFR Part 52 Planning Section (6PD–L), at fax not publicly available, e.g., CBI or other number 214–665–7263. information whose disclosure is • [EPA–R06–OAR–2008–0420; FRL–8690–6] Mail: Mr. Guy Donaldson, Chief, restricted by statute. Certain other Air Planning Section (6PD–L), material, such as copyrighted material, Approval and Promulgation of Air Environmental Protection Agency, 1445 will be publicly available only in hard Quality Implementation Plans; Texas; Ross Avenue, Suite 1200, Dallas, Texas copy. Publicly available docket Dallas/Fort Worth 1-Hour Ozone 75202–2733. materials are available either Nonattainment Area; Determination of • Hand or Courier Delivery: Mr. Guy electronically in http:// Attainment of the 1-Hour Ozone Donaldson, Chief, Air Planning Section www.regulations.gov or in hard copy at Standard (6PD–L), Environmental Protection the Air Planning Section (6PD–L), Agency, 1445 Ross Avenue, Suite 1200, Environmental Protection Agency, 1445 AGENCY: Environmental Protection Dallas, Texas 75202–2733. Such Ross Avenue, Suite 700, Dallas, Texas Agency (EPA). deliveries are accepted only between the 75202–2733. The file will be made ACTION: Proposed rule. hours of 8 a.m. and 4 p.m. weekdays available by appointment for public except for legal holidays. Special inspection in the Region 6 FOIA Review SUMMARY: The EPA is proposing to arrangements should be made for Room between the hours of 8:30 a.m. determine that the Dallas/Fort Worth deliveries of boxed information. and 4:30 p.m. weekdays except for legal (DFW) 1-hour ozone nonattainment area Instructions: Direct your comments to holidays. Contact the person listed in is currently attaining the 1-hour ozone Docket ID No. EPA–R06–OAR–2008– the FOR FURTHER INFORMATION CONTACT National Ambient Air Quality Standard 0420. The EPA’s policy is that all paragraph below to make an (NAAQS). This determination is based comments received will be included in appointment. If possible, please make upon certified ambient air monitoring the public docket without change and the appointment at least two working data that show the area has monitored may be made available online at http:// days in advance of your visit. There will attainment of the 1-hour ozone NAAQS www.regulations.gov, including any be a fee of 15 cents per page for making for the 2004–2006 monitoring period. In personal information provided, unless photocopies of documents. On the day addition, quality controlled and quality the comment includes information of the visit, please check in at the EPA assured ozone data for 2007 and 2008 claimed to be Confidential Business Region 6 reception area at 1445 Ross that are available in the EPA Air Quality Information (CBI) or other information Avenue, Suite 700, Dallas, Texas 75202– System database, but not yet certified, the disclosure of which is restricted by 2733. show this area continues to attain the statute. Do not submit information FOR FURTHER INFORMATION CONTACT: Ms. 1-hour ozone NAAQS. If this proposed through http://www.regulations.gov or Carrie Paige, Air Planning Section determination is made final, the e-mail that you consider to be CBI or (6PD–L), Environmental Protection requirements for this area to submit an otherwise protected from disclosure. Agency, Region 6, 1445 Ross Avenue, attainment demonstration or 5% The http://www.regulations.gov Web Suite 700, Dallas, Texas 75202–2733, Increment of Progress (IOP) plan, a site is an anonymous access system, telephone (214) 665–6521, fax (214) reasonable further progress plan, which means EPA will not know your 665–7263, e-mail address contingency measures, and other identity or contact information unless [email protected]. planning State Implementation Plans you provide it in the body of your SUPPLEMENTARY INFORMATION: (SIPs) related to attainment of the 1- comment. If you send an e-mail Throughout this document, ‘‘we,’’ ‘‘us,’’ hour ozone NAAQS shall be suspended comment directly to EPA without going and ‘‘our’’ means EPA. This for so long as the area continues to through http://www.regulations.gov, supplementary information section is attain the 1-hour ozone NAAQS. your e-mail address will be arranged as follows: DATES: Comments must be received on automatically captured and included as or before August 11, 2008. part of the comment that is placed in the I. What Is the Background for This Action? ADDRESSES: Submit your comments, public docket and made available on the II. What Is the Impact of a United States identified by Docket No. EPA–R06– Internet. If you submit an electronic Court of Appeals Decision in the South Coast Case Regarding EPA’s Phase 1 OAR–2008–0420, by one of the comment, EPA recommends that you Ozone Implementation Rule on This following methods: include your name and other contact • Proposed Rule? Federal Rulemaking Portal: http:// information in the body of your III. Proposed Determination of Attainment www.regulations.gov. Follow the on-line comment and with any disk or CD–ROM IV. What Action Is EPA Taking? instructions for submitting comments. you submit. If EPA cannot read your V. Statutory and Executive Order Reviews

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I. What Is the Background for This are subject to more stringent planning See, Sierra Club v. EPA, 294 F.3rd 155 Action? requirements and are provided more (D.C. Cir. 2002), Sierra Club v. EPA, 311 The Clean Air Act (the Act) requires time to attain the standard. The DFW 1- F.3rd 853 (7th Cir. 2002), and Sierra us to establish National Ambient Air hr ozone nonattainment area was Club v. EPA, 314 F.3rd 735 (5th Cir. Quality Standards (NAAQS) for certain initially classified as moderate (56 FR 2002). EPA proposed approval of the widespread pollutants that cause or 56694, November 6, 1991) with an 2000 SIP and transport demonstration contribute to air pollution that is attainment date of November 15, 1996. on January 18, 2001 (66 FR 4756). reasonably anticipated to endanger Since the area did not attain the However, due to the Courts’ ruling EPA public health or welfare (sections 108 standard by November 15, 1996, we could not take final action on this SIP. reclassified the area to serious on March EPA published the 8-hour ozone and 109 of the Act). In 1979, we 20, 1998 (63 FR 8128). The statutory designations and the first phase promulgated the 1-hour ozone standard attainment date for DFW, with its governing certain facets of of 0.12 parts per million (ppm) (44 FR reclassification to serious, was implementation of the 8-hour ozone 8202, February 8, 1979). For ease of November 15, 1999. The DFW 1-hour standard (Phase 1 Rule) on April 30, communication, many reports of ozone ozone nonattainment area contains 2004 (69 FR 23858 and 69 FR 23951, concentrations are given in parts per Dallas, Tarrant, Collin, and Denton respectively). The DFW area was billion (ppb); ppb = ppm x 1000. Thus, Counties (40 CFR parts 81.344). As a designated as nonattainment for the 8- 0.12 ppm becomes 120 ppb or 124 ppb result of the reclassification to serious, hour ozone standard and comprises when rounding is considered. the State was required to submit an nine counties: Collin, Dallas, Denton, An area exceeds the 1-hour ozone attainment demonstration SIP with an and Tarrant counties (these four standard each time an ambient air attainment date of November 15, 1999 constitute the 1-hour ozone quality monitor records a 1-hour average and a Rate of Progress (ROP) SIP nonattainment area, hereafter referred to ozone concentration above 0.12 ppm in covering the years from November 15, as the four core counties), and Ellis, any given day. Only the highest 1-hour 1996 to November 15, 1999. The State Johnson, Kaufman, Parker and Rockwall ozone concentration at the monitor submitted those SIPs on March 19, counties. At the time of designation during any 24 hour day is considered 1999. The State had previously however, the four core counties when determining the number of submitted the moderate area 15% ROP remained in nonattainment for the 1- exceedance days at the monitor. An area plan on August 8, 1996, before the area hour standard and had two outstanding violates the ozone standard if, over a was reclassified to serious. The 15% 1-hour ozone obligations: (1) The area consecutive 3-year period, more than 3 plan was given a conditional, interim did not have an approved 1-hour ozone days of exceedances occur at the same approval. attainment demonstration; and (2) the monitor. For more information please Our review showed that the area did not have approved reasonably see ‘‘National 1-hour primary and attainment demonstration SIP submitted available control technology (RACT) secondary air quality standards for in 1999 did not contain an adequate requirements for major sources of VOC ozone’’ (40 CFR 50.9) and control strategy or adopted measures to emissions (VOC RACT). ‘‘Interpretation of the 1-Hour Primary implement the strategy and the 1999 The Phase 1 Rule revoked the 1-hour and Secondary National Ambient Air Post-1996 ROP SIP did not achieve the ozone standard (see 69 FR 23951). The Quality Standards for Ozone’’ (40 CFR required 9% reduction in emissions for Phase 1 Rule further provided the 50, Appendix H). the time period. Therefore, we found following three options for areas that The fourth-highest daily ozone both SIPs incomplete and started had not met the 1-hour ozone concentration over the 3-year period is sanctions and Federal Implementation attainment demonstration requirement: called the design value (DV). The DV Plan (FIP) clocks effective May 13, 1999. (1) Submit a 1-hour attainment indicates the severity of the ozone A new Post-1996 ROP SIP was demonstration no later than 1 year after problem in an area; it is the ozone level submitted October 25, 1999, and was designation; (2) Submit a Reasonable around which a state designs its control found complete on December 16, 1999, Further Progress (RFP) plan for the 8- strategy for attaining the ozone since the new plan contained additional hour NAAQS, no later than 1 year standard. A monitor’s DV is the fourth volatile organic compound (VOC) following designations for the 8-hour highest ambient concentration recorded reductions to meet the 9% requirement. NAAQS, providing a 5% increment of at that monitor over the previous 3 The new attainment demonstration SIP emissions reduction from the area’s years. An area’s DV is the highest of the was submitted April 25, 2000, and was 2002 emissions inventory (EI); or (3) design values from the area’s monitors. found complete on June 23, 2000, Submit an early 8-hour ozone The Act, as amended in 1990, because it contained a modeled control attainment demonstration SIP that required EPA to designate as strategy and adopted regulations to ensures that the first segment of RFP is nonattainment any area that was implement the strategy. These two achieved early (See 40 CFR violating the 1-hour ozone standard, completeness findings stopped the 51.905(a)(ii)). Texas selected option 2, to generally based on air quality sanctions clocks. The 2000 SIP also submit the RFP plan providing a 5% monitoring data from the 1987 through contained a transport determination. increment of emissions reduction from 1989 period (section 107(d)(4) of the Under an EPA policy, ‘‘Extension of the area’s 2002 EI. This increment of Act; 56 FR 56694, November 6, 1991). Attainment Dates for Downwind emissions reduction is called the 5% The Act further classified these areas, Transport Areas,’’ dated July 16, 1998, Increment of Progress (IOP) plan. Texas based on their ozone DVs, as marginal, an area such as DFW could have been submitted the 5% IOP plan for DFW, moderate, serious, severe, or extreme. granted an attainment date extension if but EPA has not taken final action on The control requirements and date by it could be shown that the DFW area the plan. which attainment is to be achieved vary was affected by emissions from an up- The Phase 1 Rule also provided that with an area’s classification. Marginal wind nonattainment area with a later 1-hour ozone nonattainment areas are areas are subject to the fewest mandated attainment date (e.g., Houston 2007) to required to adopt and implement control requirements and had the a degree that affects the downwind ‘‘applicable requirements’’ according to earliest attainment date, November 15, area’s ability to achieve attainment. This the area’s classification under the 1- 1993, while severe and extreme areas policy was not upheld by the Courts. hour ozone standard for anti-backsliding

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purposes (see 40 CFR § 51.905(a)(i)). On Circuit vacated the Phase 1 Rule. South developing several proposed rules to May 26, 2005, we determined that an Coast Air Quality Management Dist. v. address the Court’s vacatur and remand area’s 1-hour designation and EPA, 472 F.3d 882 (D.C. Cir. 2006). On with respect to these three classification as of June 15, 2004 would June 8, 2007, in South Coast Air Quality requirements. We address below how dictate what 1-hour obligations remain Management Dist. v. EPA, Docket No. the obligations for DFW will be met, as ‘‘applicable requirements’’ under the 04–1201, in response to several specifically, the 1-hour obligations Phase 1 Rule (70 FR 30592). The DFW petitions for rehearing, the D.C. Circuit under EPA’s anti-backsliding rule (as 1-hour nonattainment area was still clarified that the Phase 1 Rule was interpreted by the Court), and the classified as serious on June 15, 2004, so vacated only with regard to those parts obligation under 40 CFR 51.905(a)(ii)(B) the 1-hour ozone standard requirements of the rule that had been successfully that applies to DFW because DFW did applicable to the four core counties are challenged. With respect to the not have a fully approved attainment those that apply to nonattainment areas challenges to the anti-backsliding SIP for the 1-hour NAAQS at the time classified as serious. An outstanding provisions of the rule, the Court vacated of its designation under the 8-hour ‘‘applicable requirement’’ for the four three provisions that would have NAAQS, will be met. core counties is the VOC RACT. We allowed States to remove from the SIP proposed to approve RACT for all major or not to adopt three 1-hour obligations III. Proposed Determination of sources of VOCs in the 1-hour DFW once the 1-hour standard was revoked to Attainment nonattainment area on January 18, 2001 transition to the implementation of the (66 FR 4756) and received no 8-hour ozone standard: (1) EPA is proposing to find that the DFW comments. In a separate rulemaking, we Nonattainment area new source review 1-hour ozone nonattainment area is are re-proposing to approve RACT for (NSR) requirements based on an area’s currently in attainment of the 1-hour all major sources of VOCs in the 1-hour 1-hour nonattainment classification; (2) standard based on the most recent 3 DFW nonattainment area. section 185 penalty fees for 1-hour years of quality-assured air quality data. Apart from the attainment severe or extreme nonattainment areas Certified ambient air monitoring data demonstration and RACT, the DFW area that fail to attain the 1-hour standard by show that the area has monitored has satisfied all other serious area the 1-hour attainment date; and (3) attainment of the 1-hour ozone NAAQS applicable requirements under the 1- measures to be implemented pursuant for the 2004–2006 monitoring period. hour ozone standard. See the area’s to section 172(c)(9) or 182(c)(9) of the Quality controlled and quality assured Clean Fuels Fleet Program (February 7, Act, on the contingency of an area not ozone data for 2007 and 2008 that are 2001 at 66 FR 9203); the area’s post making reasonable further progress available in the EPA Air Quality System 1996 Rate of Progress (ROP) plan and toward attainment of the 1-hour NAAQS database (AQS), but not yet certified, associated motor vehicle emission or for failure to attain that NAAQS. The show this area continues to attain the 1- budgets (MVEBs) (March 28, 2005 at 70 Court clarified that 1-hour conformity hour ozone NAAQS. In addition, as of FR 15592); and the area’s 15% ROP plan determinations are not required for anti- June 30, 2008, data available in AQS and associated MVEBs (April 12, 2005 backsliding purposes. and on the Texas Commission on at 70 FR 18993). For a complete list, see The provisions in 40 CFR 51.905(a)– Environmental Quality Web site at the Texas SIP map at http:// (c) concerning anti-backsliding remain http://www.tceq.state.tx.us/cgi-bin/ www.epa.gov/earth1r6/6pd/air/sip/ in effect and areas must continue to compliance/monops/ sip.htm. meet those requirements. However, the ozone_exceedance.pl show no three provisions noted above, which are exceedances of the 1-hour standard for II. What Is the Impact of a United specified in 40 CFR 51.905(e), were the DFW area in 2008. Consistent with States Court of Appeals Decision in the vacated by the Court. As a result, States 40 CFR 50, Appendix H, Table 1 South Coast Case Regarding EPA’s must continue to meet the obligations contains the 1-hour ozone data for the Phase 1 Ozone Implementation Rule on for 1-hour NSR; 1-hour contingency DFW 1-hour ozone nonattainment area This Proposed Rule? measures; and, for severe and extreme monitors that show that the area is On December 22, 2006, the U.S. Court areas, the obligations related to a section currently attaining the 1-hour ozone of Appeals for the District of Columbia 185 fee program. Currently, EPA is NAAQS.

TABLE 1.—1-HOUR OZONE DATA FOR THE DFW 1-HOUR OZONE NONATTAINMENT AREA

Design value Actual and estimated number of exceedances a 3-year exceedance Site (ppb) average 2004–2006 2005–2007 2004 2005 2006 2007 2004–2006 2005–2007

Denton County Airport (48–121–0034) ...... 118 118 0 0 0 1 0 0.33 Nuestra (48–113–0075)... 117 16 0 0 0 0 0 0 Hinton (48–113–0069)..... 114 114 0 0 0 0 0 0 Executive (48–113–0087) 111 110 1 0 0 0 0.33 0 Keller (48–439–2003)...... 115 117 0 2 0 1 0.67 1.00 Meacham (48–439–1002) 117 118 0 2 0 1 0.67 1.00 Arlington (48–439–3011) 113 113 0 0 0 0 0 0 Eagle Mt. Lake (48–439– 0075) ...... 124 124 1 2 0 1 1.00 1.00 Grapevine (48–439–3009) 112 111 1 0 0 0 0.33 0 Frisco (48–085–0005)...... 113 111 0 0 0 0 0 0 a The actual and estimated number of exceedances were equal in all cases.

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Pursuant to the interpretation set forth area continues to attain the 1-hour responsibilities established in the Clean in the May 10, 1995 memorandum from standard: Air Act. This proposed rule also is not John S. Seitz, Director, Office of Air RFP reductions under section subject to Executive Order 13045 Quality Planning and Standards, 182(c)(2)(B) (for serious and above ‘‘Protection of Children from entitled ‘‘Reasonable Further Progress, areas) Environmental Health Risks and Safety Attainment Demonstration, and Related Attainment demonstration under Risks’’ (62 FR 19885, April 23, 1997), Requirements for Ozone Nonattainment section 182(c)(2) (for serious and above because it proposes to determine that air Areas Meeting the Ozone Ambient Air areas) quality in the affected area is meeting Quality Standard’’ (Clean Data Policy), Contingency measures under section Federal standards. The requirements of EPA is proposing to make a finding of 172(c)(9) and section 182(c)(9) (for section 12(d) of the National attainment based on current air quality. serious and above areas). Technology Transfer and Advancement Under this policy, if EPA determines V. Statutory and Executive Order Act of 1995 (15 U.S.C. 272 note) do not through rulemaking that the DFW Reviews apply because it would be inconsistent 1-hour ozone nonattainment area is with applicable law for EPA, when Under Executive Order 12866 (58 FR meeting the 1-hour ozone standard, the determining the attainment status of an 51735, October 4, 1993), this proposed requirements for the State to submit and area, to use voluntary consensus action is not a ‘‘significant regulatory have approved an attainment standards in place of promulgated air demonstration and related components action’’ and therefore is not subject to review by the Office of Management and quality standards and monitoring such as reasonably available control procedures that otherwise satisfy the measures (RACM), an RFP Budget. For this reason, this action is also not subject to Executive Order provisions of the Clean Air Act. This demonstration (including the 5% IOP proposed rule does not impose an plan), and contingency measures for 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, information collection burden under the failure to attain or make RFP are provisions of the Paperwork Reduction suspended as long as the area continues Distribution, or Use’’ (66 FR 28355, May 22, 2001). This action proposes to make Act of 1995 (44 U.S.C. 3501, et seq.). to attain the 1-hour ozone NAAQS. If Under Executive Order 12898, EPA the area subsequently violates the ozone a determination based on air quality data, and would, if finalized, result in finds that this rule involves a proposed NAAQS, EPA would initiate notice-and- determination of attainment based on comment rulemaking to withdraw the the suspension of certain Federal requirements. Accordingly, the air quality data and will not have determination of attainment, which disproportionately high and adverse would result in reinstatement of the Administrator certifies that this rule will not have a significant economic human health or environmental effects requirement for the State to submit such on any communities in the area, plans. impact on a substantial number of small entities under the Regulatory Flexibility including minority and low-income The Tenth, Seventh and Ninth communities. Circuits have upheld EPA rulemakings Act (5 U.S.C. 601, et seq.). Because this applying the Clean Data Policy. See rule proposes to make a determination List of Subjects in 40 CFR Part 52 based on air quality data, and would, if Sierra Club v. EPA, 99 F. 3d 1551 (10th Environmental protection, Air Cir. 1996); Sierra Club v. EPA, 375 F.3d finalized, result in the suspension of certain Federal requirements, it does not pollution control, Incorporation by 537 (7th Cir. 2004) and Our Children’s reference, Intergovernmental relations, Earth Foundation v. EPA, No. 04–73032 contain any unfunded mandate or significantly or uniquely affect small Nitrogen dioxides, Ozone, Reporting (9th Cir. June 28, 2005) memorandum and recordkeeping requirements, 1 governments, as described in the opinion. See also the discussion and Volatile organic compounds. rulemakings cited in the Phase 2 Rule, Unfunded Mandates Reform Act of 1995 70 FR 71644–71646 (November 29, (Pub. L. 104–4). This proposed rule also Authority: 42 U.S.C. 7401 et seq. 2005). does not have tribal implications Dated: July 1, 2008. because it will not have a substantial Richard E. Greene, IV. What Action Is EPA Taking? direct effect on one or more Indian Regional Administrator, Region 6. EPA proposes to find that the DFW tribes, on the relationship between the [FR Doc. E8–15809 Filed 7–10–08; 8:45 am] 1-hour ozone nonattainment area has Federal Government and Indian tribes, attained the 1-hour ozone standard. or on the distribution of power and BILLING CODE 6560–50–P Thus the requirements for submitting responsibilities between the Federal Government and Indian tribes, as the attainment demonstration, RFP ENVIRONMENTAL PROTECTION specified by Executive Order 13175 (65 requirements, or in this case a 5% IOP, AGENCY (40 CFR 51.905(a)), and section 172(c)(9) FR 67249, November 9, 2000). This and section 182(c)(9) contingency proposed action also does not have 40 CFR Part 52 measures are suspended for so long as Federalism implications because it does the area is attaining the standard. not have substantial direct effects on the [EPA–R06–OAR–2007–0523; FRL–8690–5] Thus pursuant to our proposed States, on the relationship between the Approval and Promulgation of determination of attainment and in national government and the States, or Implementation Plans; Texas; Control accordance with our Clean Data Policy, on the distribution of power and of Emissions of Nitrogen Oxides (NO ) the effect of the finding is that the responsibilities among the various X From Stationary Sources following requirements to submit SIP levels of government, as specified in measures under the 1-hour anti- Executive Order 13132 (64 FR 43255, AGENCY: Environmental Protection backsliding provisions (40 CFR Section August 10, 1999), because it merely Agency (EPA). 51.905) are suspended for so long as the proposes to make a determination based ACTION: Proposed rule. on air quality data and would, if 1 The Clean Data Policy, as it is embodied in 40 finalized, result in the suspension of SUMMARY: The EPA is proposing CFR 51.918, is being challenged in the context of the 8-hour ozone standard in the Phase 2 Rule certain Federal requirements, and does approval of rules for the control of NOX ozone litigation pending in the D.C. Circuit, NRDC not alter the relationship or the emissions into the Texas State v. EPA, No. 06–1045 (D.C. Cir.). distribution of power and Implementation Plan (SIP). The Texas

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Commission on Environmental Quality • Mail: Mr. Guy Donaldson, Chief, Environmental Protection Agency, 1445 (TCEQ) submitted this revision to the Air Planning Section (6PD-L), Ross Avenue, Suite 700, Dallas, Texas SIP to us on May 30, 2007 (May 30, Environmental Protection Agency, 1445 75202–2733. The file will be made 2007 SIP revision). The May 30, 2007 Ross Avenue, Suite 1200, Dallas, Texas available by appointment for public SIP revision is a substantive and non- 75202–2733. inspection in the Region 6 FOIA Review substantive recodification and • Hand or Courier Delivery: Mr. Guy Room between the hours of 8:30 a.m. reformatting of the NOX rules currently Donaldson, Chief, Air Planning Section and 4:30 p.m. weekdays except for legal approved in the Texas SIP. This revision (6PD-L), Environmental Protection holidays. Contact the person listed in also includes a part of the NOX Agency, 1445 Ross Avenue, Suite 1200, the FOR FURTHER INFORMATION CONTACT reductions needed for the Dallas/Forth Dallas, Texas 75202–2733. Such paragraph below to make an Worth (D/FW) area to attain the Federal deliveries are accepted only between the appointment. If possible, please make 8-hour ozone National Ambient Air hours of 8 a.m. and 4 p.m. weekdays the appointment at least two working Quality Standard (NAAQS). This except for legal holidays. Special days in advance of your visit. There will rulemaking covers four separate actions. arrangements should be made for be a 15 cent per page fee for making First, we are proposing to approve the deliveries of boxed information. photocopies of documents. On the day repeal of the current Chapter 117 rules Instructions: Direct your comments to of the visit, please check in at the EPA that correspond to the non-substantive Docket ID No. EPA–R06–OAR–2007– Region 6 reception area at 1445 Ross new rules and the revised and 0523. The EPA’s policy is that all Avenue, Suite 700, Dallas, Texas 75202– reformatted rules because the comments received will be included in 2733. reformatted revision will better the public docket without change and The State submittal is also available accommodate future additions/revisions may be made available online at for public inspection at the State Air to the rules. See section 1 of this www.regulations.gov, including any Agency listed below during official document. Second, we are proposing to personal information provided, unless business hours by appointment: approve revisions to the Texas SIP that the comment includes information Texas Commission on Environmental add new controls for the D/FW major claimed to be Confidential Business Quality, Office of Air Quality, 12124 Information (CBI) or other information NOX point sources. We are not, Park 35 Circle, Austin, Texas 78753. however, taking action on the Texas the disclosure of which is restricted by FOR FURTHER INFORMATION CONTACT: Mr. rules for cement plants in this statute. Do not submit information Alan Shar, Air Planning Section (6PD– document. The rules for cement plants through www.regulations.gov or e-mail L), Environmental Protection Agency, are being evaluated in a separate that you consider to be CBI or otherwise Region 6, 1445 Ross Avenue, Suite 700, Federal Register document. See sections protected from disclosure. The Dallas, Texas 75202–2733, telephone 5, 6, 13, and 14 of this document. Third, www.regulations.gov Web site is an (214) 665–6691, fax (214) 665–7263, ‘‘anonymous access’’ system, which we are proposing to approve revisions to e-mail address shar.alan @epa.gov. means EPA will not know your identity the Texas SIP that add new controls for SUPPLEMENTARY INFORMATION: or contact information unless you D/FW minor NO sources. See section X provide it in the body of your comment. Throughout this document ‘‘we,’’ ‘‘us,’’ 15 of this document. Fourth, we are If you send an e-mail comment directly and ‘‘our’’ refer to EPA. proposing to approve revisions to the to EPA without going through Texas SIP that add new controls for I. General Information www.regulations.gov, your e-mail combustion sources in East Texas. See address will be automatically captured What Should I Consider as I Prepare My section 16 of this document. These NO X and included as part of the comment Comments for EPA? reductions will assist the D/FW area to that is placed in the public docket and A. Submitting CBI. Do not submit this attain the 8-hour ozone NAAQS. We are made available on the Internet. If you information to EPA through proposing approval of these actions as submit an electronic comment, EPA www.regulations.gov or e-mail. Clearly meeting the requirements of section 110 recommends that you include your mark the part or all of the information and part D of the Federal Clean Air Act name and other contact information in that you claim to be CBI. For CBI (the Act). the body of your comment and with any information in a disk or CD–ROM that DATES: Comments must be received on disk or CD-ROM you submit. If EPA you mail to EPA, mark the outside of the or before August 11, 2008. cannot read your comment due to disk or CD–ROM as CBI and then ADDRESSES: Submit your comments, technical difficulties and cannot contact identify electronically within the disk or identified by Docket No. EPA–R06– you for clarification, EPA may not be CD–ROM the specific information that OAR–2007–0523, by one of the able to consider your comment. is claimed as CBI. In addition to one following methods: Electronic files should avoid the use of complete version of the comment that • Federal eRulemaking Portal: http:// special characters, any form of includes information claimed as CBI, a www.regulations.gov. Follow the on-line encryption, and be free of any defects or copy of the comment that does not instructions for submitting comments. viruses. contain the information claimed as CBI • U.S. EPA Region 6 ‘‘Contact Us’’ Docket: All documents in the docket must be submitted for inclusion in the Web site: http://epa.gov/region6/ are listed in the www.regulations.gov public docket. Information so marked r6coment.htm. Please click on ‘‘6PD’’ index. Although listed in the index, will not be disclosed except in (Multimedia) and select ‘‘Air’’ before some information is not publicly accordance with procedures set forth in submitting comments. available, e.g., CBI or other information 40 Code of Federal Regulations (CFR) • E-mail: Mr. Guy Donaldson at whose disclosure is restricted by statute. part 2. [email protected]. Please also Certain other material, such as B. Tips for Preparing Your Comments. send a copy by e-mail to the person copyrighted material, will be publicly When submitting comments, remember listed in the FOR FURTHER INFORMATION available only in hard copy. Publicly to: CONTACT section below. available docket materials are available • Identify the rulemaking by docket • Fax: Mr. Guy Donaldson, Chief, Air either electronically in number and other identifying Planning Section (6PD-L), at fax number www.regulations.gov or in hard copy at information (subject heading, Federal 214–665–7263. the Air Planning Section (6PD–L), Register date and page number).

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• Follow directions—The agency may 15. What are the NOX emissions and administrative revisions to the ask you to respond to specific questions specifications for minor sources of NOX wording of Chapter 117 under section or organize comments by referencing a in the D/FW area that we are proposing 110 and part D of the Act. For a full list CFR part or section number. to approve? of affected sections see section 3 of this • Explain why you agree or disagree, 16. What are the NOX emissions requirements for stationary reciprocating document. suggest alternatives, and substitute internal combustion engines (RICE) in Second, we are proposing to approve language for your requested changes. revisions to the D/FW NO major point • East Texas that we are proposing to X Describe any assumptions and approve? source rules. See sections 5, 6, 13, and provide any technical information and/ 17. What are the compliance schedules for 14 of this document. Sections or data that you used. NO emissions sources that we are • X 117.410(a), 117.410(b) and 117.310(b) If you estimate potential costs or proposing to approve? contain substantive changes in the burdens, explain how you arrived at reformatted Chapter 117 rules that result your estimate in sufficient detail to 1. What are we proposing to approve? in additional NOX reductions. These allow for it to be reproduced. On May 30, 2007, TCEQ submitted reductions were not previously a part of • Provide specific examples to rule revisions to 30 TAC, Chapter 117, EPA-approved Texas SIP, Chapter 117. illustrate your concerns, and suggest ‘‘Control of Air Pollution from Nitrogen alternatives. Compounds,’’ as a revision to the Texas Third, we are proposing to approve • revisions to the D/FW minor source Explain your views as clearly as SIP for point sources of NOX (May 30, possible, avoiding the use of profanity 2007 SIP revision). The State of Texas rules for the control of NOX. See section or personal threats. submitted the May 30, 2007 SIP revision 15 of this document. Sections • Make sure to submit your to us, to, among other things, provide a 117.2010(a) and 117.2110(a) contain substantive changes in the reformatted comments by the comment period portion of the NOX reductions needed deadline identified. for the D/FW area to attain the Federal Chapter 117 rules that result in additional NOX reductions which will II. Background 8-hour ozone NAAQS. We are taking four separate actions in this rulemaking help the DFW area to attain the 1997 8- Table of Contents action. hour ozone standard. These reductions 1. What are we proposing to approve? First, these revisions involve were not previously a part of EPA- 2. What is the relationship between the May repealing the current Chapter 117 rules, approved Texas SIP, Chapter 117. 30, 2007 SIP revision and the ozone and simultaneously proposing to Fourth, we are proposing to approve attainment demonstration plan for the approve into the Texas SIP, a new revisions to the rules for the control of D/FW? NO emissions from combustion 3. What sections of the May 30, 2007, SIP reformatted Chapter 117. We are X revision will become part of Texas SIP? proposing to approve the repeal of the sources in East Texas. See section 16 of 4. What sections of the May 30, 2007, SIP current Chapter 117, and the this document. Sections 117.3310(a) and revision will not become part of Texas recodification and reformatting of 117.3010(a) contain substantive changes SIP? Chapter 117 because the reformatted in the reformatted Chapter 117 rules 5. What sections of the May 30, 2007, SIP revision will better accommodate future that result in 22.4 Tons Per Day (TPD) revision are we not acting upon in this of cumulative NOX reductions. These proposal? additions/revisions to the rules and will maintain consistency between the State reductions were not previously a part of 6. What Counties in the D/FW area will the EPA-approved Texas SIP, Chapter 117. May 30, 2007, SIP revision affect? rules and Federal SIP. We are proposing 7. What Counties in East and Central Texas to approve all of the non-substantive Tables 1 and 2 list the section of the will the May 30, 2007, SIP revision reformatted, restructured, renumbered, Texas rules with significant affect? reorganized, and administrative modifications and minor substantive 8. What is Ozone and why do we regulate it? revisions to the wording of Chapter 117 modifications, respectively. Since Texas 9. What are NOX? into Texas SIP. We want to clarify that has reformatted and recodified the rule, 10. What is a SIP? the remaining sections of Chapter 117 11. What areas in Texas will today’s the specifically identified rules do not rulemaking action affect? make any changes to the substance of are affected by this revision in 12. What is the section 110(l) ‘‘anti- the rules that we previously approved nonsubstantive ways. Table 3 lists all of backsliding’’ analysis for the May 30, into the Texas SIP, Chapter 117. By the sections that are impacted by this 2007 SIP revision? approving the repeal of the current revision both in substantive and in 13. What are the NOX emissions Texas SIP, Chapter 117’s rules we are nonsubstantive ways. requirements for point sources in the making it clear that the new rules Table 1 contains a list of the sections D/FW area that we are proposing to approve? replace the previous rules in their of Chapter 117 with significant 14. What are the NOX emission requirements entirety. We are proposing to approve modifications. Also see Figure 1 of 30 for stationary diesel engines in the D/FW these non-substantive reformatted, TAC Chapter 117 at 31 Texas Register area that we are proposing to approve? restructured, renumbered, reorganized, 10899, published December 29, 2006.

TABLE 1.—DESCRIPTION AND SECTIONS OF 30 TAC, CHAPTER 117 PROPOSED FOR MODIFICATION

Description Section

Subchapter A: Definitions ...... 117.10(2), 117.10(14), 117.10(24), 117.10(29), 117.10(44), and 117.10(51). Subchapter B, Division 4, Dallas-Fort Worth Eight Hour Ozone Nonattainment Area 117.400–117.456. Major Sources. Removal from Subchapter B, Division 2 after compliance date for Division 4 ...... 117.200(b). Subchapter C, Division 4, Dallas-Fort Worth Eight Hour Ozone Nonattainment Area 117.1300–117.1356. Utility Electric Generation Sources. Removal from Subchapter C, Division 2 after compliance date for Division 4 ...... 117.1100(c) Subchapter D, Division 2, Dallas-Fort Worth Eight Hour Ozone Nonattainment Area 117.2100–117.2145. Minor Sources.

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TABLE 1.—DESCRIPTION AND SECTIONS OF 30 TAC, CHAPTER 117 PROPOSED FOR MODIFICATION—Continued

Description Section

Subchapter E: Multi-Region Combustion Control, Division 4, East Texas Combustion 117.3300–117.3345. Subchapter H: Administrative Provisions, Division 1, Compliance Schedules ...... 117.9030, 117.9130, 117.9210, 117.9320, and 117.9340.

The following Table 2 contains a list language that are minor in nature. Also 31 Texas Register 10900, published of changes to existing Chapter 117 see Figure 1 of 30 TAC Chapter 117 at December 29, 2006.

TABLE 2.—DESCRIPTION AND SECTIONS OF 30 TAC, CHAPTER 117 WITH MINOR CHANGES

Description Section

Add equation for oxygen correction of pollutant concentration ...... 117.10(35). Update utility boiler definition and utility electric generation rules applicability con- 117.10(52), 117.1000, 117.1100, and 117.1200. sistent with East and Central Texas utility rules. Update emergency fuel oil exemption to include only appropriate reliability councils .... 117.1003(c), 117.1103(c), and 117.1203(c). Include list of ammonia methods in test methods procedures ...... 117.8000(c). Allow major sources to petition ED for shorter test times ...... 117.8000(b) Change references of ‘‘upsets’’ to ‘‘emissions events.’’ 117.123(k), 117.223(k), 117.323(k), 117.1020(k), 117.1120(k), and 117.1220(k). Clarify system cap equations to allow for adjustment period after startup ...... 117.320(c). Additional data substitution option for major sources subject to MECT ...... 117.340(c). Expand engine low use requirement from quarterly testing to BPA and D/FW ...... 117.8140(b). Update references to 101.222 to be consistent with current ...... 101.222, 117.145(a), 117.245(a), 117.345(a), 117.1045(a), 117.1145(a), 117.1245(a), and 117.3045(a). Clarify compliance schedule for industrial EGFs to submit level of activity information 117.9020(2)(B).

For more details on each of these consistency between the State rules and attainment demonstration plan in a actions, you can refer to our Technical Federal SIP. separate rulemaking action. Support Document (TSD) developed in 2. What is the relationship between the conjunction with this rulemaking 3. What sections of the May 30, 2007, May 30, 2007 SIP revision and the ozone action. We are proposing to approve SIP revision will become part of Texas revisions to 30 TAC, Chapter 117, attainment demonstration plan for the SIP? described above as actions one through D/FW? Table 3 below contains a summary list four, because these revisions to 30 TAC The resulting emissions reductions of of the sections of 30 TAC, Chapter 117 Chapter 117 will enhance the Texas SIP NOX, an ozone precursor, from this SIP that Texas submitted on May 30, 2007, for controlling NOX emissions from revision will assist in bringing the D/FW for point sources of NOX that we are stationary sources and the NOX area into attainment with the 8-hour emission reductions will assist the D/ ozone NAAQS, and help with the proposing become part of the Texas SIP. FW area to attain the 1997 8-hour ozone maintenance of the ozone NAAQS in Table 3 includes both the sections with NAAQS. Furthermore, approving the the East and Central parts of the State. substantive changes and the non-substantive changes will maintain We will be reviewing the 8-hour ozone nonsubstantive changes.

TABLE 3.—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 AFFECTED BY THE MAY 30, 2007, PROPOSED RULE REVISION

Section No. Description

Section 117.10 ...... Definitions. Section 117.100 ...... Applicability. Section 117.103 ...... Exemptions. Section 117.105 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.110 ...... Emission Specifications for Attainment Demonstration. Section 117.115 ...... Alternative Plant-Wide Emission Specifications. Section 117.123 ...... Source Cap. Section 117.130 ...... Operating Requirements. Section 117.135 ...... Initial Demonstration of Compliance. Section 117.140 ...... Continuous Demonstration of Compliance. Section 117.145 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.150 ...... Initial Control Plan Procedures. Section 117.152 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.154 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.156 ...... Revision of Final Control Plan. Section 117.200 ...... Applicability. Section 117.203 ...... Exemptions. Section 117.205 ...... Emission Specifications for Reasonably Available Control Technology (RACT).

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TABLE 3.—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 AFFECTED BY THE MAY 30, 2007, PROPOSED RULE REVISION—Continued

Section No. Description

Section 117.210 ...... Emission Specifications for Attainment Demonstration. Section 117.215 ...... Alternative Plant-Wide Emission Specifications. Section 117.223 ...... Source Cap. Section 117.230 ...... Operating Requirements. Section 117.235 ...... Initial Demonstration of Compliance. Section 117.240 ...... Continuous Demonstration of Compliance. Section 117.245 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.252 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.254 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.256 ...... Revision of Final Control Plan. Section 117.300 ...... Applicability. Section 117.303 ...... Exemptions. Section 117.305 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.310 ...... Emission Specifications for Attainment Demonstration. Section 117.315 ...... Alternative Plant-Wide Emission Specifications. Section 117.320 ...... System Cap. Section 117.323 ...... Source Cap. Section 117.330 ...... Operating Requirements. Section 117.335 ...... Initial Demonstration of Compliance. Section 117.340 ...... Continuous Demonstration of Compliance. Section 117.345 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.350 ...... Initial Control Plan Procedures. Section 117.352 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.354 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.356 ...... Revision of Final Control Plan. Section 117.400 ...... Applicability. Section 117.403 ...... Exemptions. Section 117.410 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.423 ...... Source Cap. Section 117.430 ...... Operating Requirements. Section 117.435 ...... Initial Demonstration of Compliance. Section 117.440 ...... Continuous Demonstration of Compliance. Section 117.445 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.450 ...... Initial Control Plan Procedures. Section 117.454 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.456 ...... Revision of Final Control Plan. Section 117.1000 ...... Applicability. Section 117.1003 ...... Exemptions. Section 117.1005 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1010 ...... Emission Specifications for Attainment Demonstration. Section 117.1015 ...... Alternative System-Wide Emission Specifications. Section 117.1020 ...... System Cap. Section 117.1035 ...... Initial Demonstration of Compliance. Section 117.1040 ...... Continuous Demonstration of Compliance. Section 117.1045 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1052 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1054 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1056 ...... Revision of Final Control Plan. Section 117.1100 ...... Applicability. Section 117.1103 ...... Exemptions. Section 117.1105 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1110 ...... Emission Specifications for Attainment Demonstration. Section 117.1115 ...... Alternative System-Wide Emission Specifications. Section 117.1120 ...... System Cap. Section 117.1135 ...... Initial Demonstration of Compliance. Section 117.1140 ...... Continuous Demonstration of Compliance. Section 117.1145 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1152 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1154 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1156 ...... Revision of Final Control Plan. Section 117.1200 ...... Applicability. Section 117.1203 ...... Exemptions. Section 117.1205 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1210 ...... Emission Specifications for Attainment Demonstration. Section 117.1215 ...... Alternative System-Wide Emission Specifications. Section 117.1220 ...... System Cap. Section 117.1235 ...... Initial Demonstration of Compliance. Section 117.1240 ...... Continuous Demonstration of Compliance. Section 117.1245 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1252 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1254 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications.

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TABLE 3.—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 AFFECTED BY THE MAY 30, 2007, PROPOSED RULE REVISION—Continued

Section No. Description

Section 117.1256 ...... Revision of Final Control Plan. Section 117.1300 ...... Applicability. Section 117.1303 ...... Exemptions. Section 117.1310 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.1335 ...... Initial Demonstration of Compliance. Section 117.1340 ...... Continuous Demonstration of Compliance. Section 117.1345 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1350 ...... Initial Control Plan Procedures. Section 117.1354 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1356 ...... Revision of Final Control Plan. Section 117.2000 ...... Applicability. Section 117.2003 ...... Exemptions. Section 117.2010 ...... Emission Specifications. Section 117.2030 ...... Operating Requirements. Section 117.2035 ...... Monitoring and Testing Requirements. Section 117.2045 ...... Recordkeeping and Reporting Requirements. Section 117.2100 ...... Applicability. Section 117.2103 ...... Exemptions. Section 117.2110 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.2130 ...... Operating Requirements. Section 117.2135 ...... Monitoring, Notification, and Testing Requirements. Section 117.2145 ...... Recordkeeping and Reporting Requirements. Section 117.3000 ...... Applicability. Section 117.3003 ...... Exemptions. Section 117.3005 ...... Gas-Fired Steam Generation. Section 117.3010 ...... Emission Specifications. Section 117.3020 ...... System Cap. Section 117.3035 ...... Initial Demonstration of Compliance. Section 117.3040 ...... Continuous Demonstration of Compliance. Section 117.3045 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.3054 ...... Final Control Plan Procedures. Section 117.3056 ...... Revision of Final Control Plan. Section 117.3200 ...... Applicability. Section 117.3201 ...... Definitions. Section 117.3203 ...... Exemptions. Section 117.3205 ...... Emission Specifications. Section 117.3210 ...... Certification Requirements. Section 117.3215 ...... Notification and Labeling Requirements. Section 117.3300 ...... Applicability. Section 117.3303 ...... Exemptions. Section 117.3310 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.3330 ...... Operating Requirements. Section 117.3335 ...... Monitoring, Notification, and Testing Requirements. Section 117.3345 ...... Recordkeeping and Reporting Requirements. Section 117.4000 ...... Applicability. Section 117.4005 ...... Emission Specifications. Section 117.4025 ...... Alternative Case Specific Specifications. Section 117.4035 ...... Initial Demonstration of Compliance. Section 117.4040 ...... Continuous Demonstration of Compliance. Section 117.4045 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.4050 ...... Control Plan Procedures. Section 117.4100 ...... Applicability. Section 117.4105 ...... Emission Specifications. Section 117.4125 ...... Alternative Case Specific Specifications. Section 117.4135 ...... Initial Demonstration of Compliance. Section 117.4140 ...... Continuous Demonstration of Compliance. Section 117.4145 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.4150 ...... Control Plan Procedures. Section 117.4200 ...... Applicability. Section 117.4205 ...... Emission Specifications. Section 117.4210 ...... Applicability of Federal New Source Performance Standards. Section 117.8000 ...... Stack Testing Requirements. Section 117.8010 ...... Compliance Stack Test Reports. Section 117.8100 ...... Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources. Section 117.8110 ...... Emission Monitoring System Requirements for Utility Electric Generation Sources. Section 117.8120 ...... Carbon Monoxide (CO) Monitoring. Section 117.8130 ...... Ammonia Monitoring. Section 117.8140 ...... Emission Monitoring for Engines. Section 117.9000 ...... Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources. Section 117.9010 ...... Compliance Schedule for Dallas-Fort Worth Ozone Nonattainment Area Major Sources. Section 117.9020 ...... Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources.

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TABLE 3.—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 AFFECTED BY THE MAY 30, 2007, PROPOSED RULE REVISION—Continued

Section No. Description

Section 117.9030 ...... Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources. Section 117.9100 ...... Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9110 ...... Compliance Schedule for Dallas-Fort Worth Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9120 ...... Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9130 ...... Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9200 ...... Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources. Section 117.9210 ...... Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources. Section 117.9300 ...... Compliance Schedule for Utility Electric Generation in East and Central Texas. Section 117.9340 ...... Compliance Schedule for East Texas Combustion. Section 117.9500 ...... Compliance Schedule for Nitric Acid and Adipic Acid Manufacturing Sources. Section 117.9800 ...... Use of Emission Credits for Compliance. Section 117.9810 ...... Use of Emission Reductions Generated from the Texas Emissions Reduction Plan (TERP).

You can find the entire TCEQ Chapter 4. What sections of the May 30, 2007, the control of ammonia or carbon 117 rules at: http://www.tceq.state.tx.us/ SIP revision will not become part of the monoxide emissions which are not rules/indxpdf.html#117. Texas SIP? ozone precursors and therefore, these rules are not necessary components of For a detailed discussion of each of Per TCEQ’s request the following the above changes and why EPA the Texas SIP. The rules listed in Table sections, listed in Table 4 below, of the 4 are not already in the current Texas believes they should be approved see May 30, 2007, SIP revision will not SIP and EPA continues to agree with the Technical Support Document for become a part of the EPA-approved Texas that these rules can remain this action. Texas SIP. These rules mainly pertain to outside the SIP.

TABLE 4.—SECTIONS OF CHAPTER 117 NOT IN EPA-APPROVED TEXAS SIP

Section No. Explanation

117.110(c), 117.125, 117.210(c), 117.225, 117.310(c), 117.325, 117.410(d), 117.425, Not a part of EPA-approved Texas SIP and 117.1010(b), 117.1025, 117.1110(b), 117.1125, 117.1210(b), 117.1225, 117.1310(b), TCEQ continues to ask that these rules re- 117.1325, 117.2010(i), 117.2025, 117.2110(h), 117.2125, 117.3010(e), 117.3025, main outside the SIP. 117.3123(f), 117.3125, 117.3310(e), and 117.3325.

Although the above sections of 30 5. What sections of the May 30, 2007 SIP revision, in this document. See Table 5 TAC Chapter 117 are not to become a revision are we not acting upon in this below. We will review and act upon the part of the Texas SIP they will continue proposal? cement kiln related sections of the May to remain enforceable at the State level. We are not evaluating the cement kiln 30, 2007 SIP revision in a separate related sections of the May 30, 2007 SIP rulemaking action.

TABLE 5.—SECTIONS OF CHAPTER 117 NOT BEING EVALUATED IN THIS RULEMAKING

Section No. Explanation

117.3100, 117.3101, 117.3103, 117.3110, 117.3120, 117.3123, 117.3125, 117.3140, 117.3142, Cement kiln related, not evaluating in this rule- and 117.3145. making action.

6. What Counties in the D/FW area will that will be affected by the May 30, 2007 the May 30, 2007 SIP revision affect? SIP revision. Table 6 below lists the Counties in the D/FW 8-hour ozone nonattainment area

TABLE 6.—TEXAS COUNTIES IN THE D/FW 8-HOUR OZONE NONATTAINMENT AREA

D/FW Counties Explanation

Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant ...... See section 117.10(2)(C).

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7. What Counties in East and Central affected by the May 30, 2007 SIP Texas will the May 30, 2007 SIP revision revision. affect? Table 7 below lists the Counties in the East and Central Texas that will be

TABLE 7.—COUNTIES PART OF THE EAST AND CENTRAL TEXAS PROVISION OF CHAPTER 117

East and Central Texas counties Explanation

Anderson, Brazos, Burleson, Camp, Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Har- See section 117.10(14)(B). rison, Henderson, Hill, Hopkins, Hunt, Lee, Leon, Limestone, Madison, Marion, Morris, Nacogdoches, Navarro, Panola, Rains, Robertson, Rusk, Shelby, Smith, Titus, Upshur, Van Zandt, and Wood.

8. What is ozone and why do we can be extensive, containing state • The May 2007 SIP submittal regulate it? regulations or other enforceable includes documentation that the State documents and supporting information Ozone is a gas composed of three has met and complied with the such as emissions inventories, oxygen atoms. Ground level ozone is reasonable notice and public hearing monitoring networks, and modeling generally not emitted directly from a requirements. The State held public demonstrations. Each state must submit vehicle’s exhaust or an industrial hearings after proper notice and these regulations and control strategies smokestack, but is created by a chemical according to the 40 CFR 51.102 to EPA for approval and incorporation reaction between NO and VOCs in the requirements. Proper notice included X into the Federally-enforceable SIP. Each presence of sunlight and high ambient prominent advertisement in the areas Federally-approved SIP protects air temperatures. Thus, ozone is known affected at least 30 days prior to the quality primarily by addressing air primarily as a summertime air pollutant. dates of the hearings. The hearing pollution at its point of origin. notices of intended action were NOX and VOCs are precursors of ozone. Motor vehicle exhaust and industrial 11. What areas in Texas will today’s circulated to the public, including emissions, gasoline vapors, chemical rulemaking action affect? interested persons, EPA Region 6, and all applicable local air pollution control solvents and natural sources emit NOX and VOCs. Urban areas tend to have The substantive rule revisions we are agencies. Public hearings were held in high concentrations of ground-level proposing to approve today mainly Houston, Dallas, Arlington, Midlothian, ozone, but areas without significant affect the D/FW 8-hour ozone Longview, and Austin, Texas. The May industrial activity and with relatively nonattainment area. See section 6 of this 2007 SIP submittal contains information low vehicular traffic are also subject to document. The substantive rule to the effect that State has met and increased ozone levels because wind revisions we are proposing to approve complied with the reasonable notice carries ozone and its precursors today also affect 33 counties in East and and public hearing requirements. For hundreds of miles from their sources. Central Texas. See section 7 of this more information see our SIP Repeated exposure to ozone pollution document. If you are in one of these Completeness Determination document, may cause lung damage. Even at very affected areas, you should refer to the prepared in accordance with the low concentrations, ground-level ozone Texas NOX rules to determine if and Appendix V of 40 CFR 51, made part of triggers a variety of health problems how today’s action will affect you. the EPA–R06–OAR–2007–0523 docket, including aggravated asthma, reduced As stated elsewhere in this document and available for public review. lung capacity, and increased the D/FW 8-hour ozone nonattainment Therefore, it is our finding that this susceptibility to respiratory illnesses area (Collin, Dallas, Denton, Tarrant, revision submitted by Texas under the like pneumonia and bronchitis. It can Ellis, Johnson, Kaufman, Parker, and Act has been adopted by Texas after also have detrimental effects on plants Rockwall Counties) is designated reasonable notice and public hearing. and ecosystems. nonattainment, and classified as a • The May 2007 SIP submittal moderate 8-hour non-attainment area for requires NOX reductions from sources 9. What are NOX? ozone. See 69 FR 23857 published April located outside the D/FW nine-County Nitrogen oxides belong to the group of 30, 2004. area. The resulting NOX reductions criteria air pollutants. NOX are 12. What is the section 110(l) ‘‘anti- should assist in bringing the D/FW area produced from burning fuels, including backsliding’’ analysis for the May 30, into attainment with the 8-hour ozone gasoline and coal. Nitrogen oxides react 2007 SIP revision? NAAQS. Sources outside the D/FW nine with volatile organic compounds (VOC) county area, now regulated by these to form ozone or smog, and are also According to section 110(l) of the Act rules include, gas-fired stationary major components of acid rain. Also see ‘‘each revision to an implementation reciprocating internal combustion http://www.epa.gov/air/urbanair/nox/. plan submitted by a State under this Act engines operating in East Texas (see shall be adopted by such State after 117.3310(a) and 117.3010(a)). NOX 10. What is a SIP? reasonable notice and public hearing. emissions from these units were not The SIP is a set of air pollution The Administrator shall not approve a regulated before. These units are located regulations, control strategies, other revision of a plan if the revision would in Texas Counties that are designated as means or techniques and technical interfere with any applicable attainment for ozone NAAQS. These analyses developed by the state, to requirement concerning attainment and Texas Counties are Anderson, Brazos, ensure that the state meets the NAAQS. reasonable further progress (as defined Burleson, Camp, Cass, Cherokee, The SIP is required by Section 110 and in section 171), or any other applicable Franklin, Freestone, Gregg, Grimes, other provisions of the Act. These SIPs requirement of this Act.’’ Harrison, Henderson, Hill, Hopkins,

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Hunt, Lee, Leon, Limestone, Madison, • The May 2007 SIP submittal D/FW area. In that action we explain Marion, Morris, Nacogdoches, Navarro, provides for additional NOX emissions how the revisions do not interfere with Panola, Rains, Robertson, Rusk, Shelby, reductions that were not previously a attainment or maintenance of the Smith, Upshur, Van Zandt, and Wood. part of the EPA-approved Texas SIP. NAAQS. It is estimated that these revisions will The May 2007 SIP submittal requires For the reasons stated above, the result in 22.4 TPD of NOX reductions. NOX reductions from minor sources provisions of the May 2007 SIP within the DFW nine county area not • The May 2007 SIP submittal submittal meet the section 110(l) previously regulated. See requirements of the Act. provides for additional NO emissions X 117.2110(a)(1), and 117.2010(a)(1) and reductions that were not previously a 13. What are the NO emissions (2). These rules provide additional NO X X requirements for major point sources in part of the EPA-approved Texas SIP. emissions reductions that were not the D/FW area that we are proposing to The May 2007 SIP submittal requires previously a part of the EPA-approved approve? NOX reductions from major sources or Texas SIP. See section 15 of this major source categories not previously document. We approved NOX emissions regulated. An example listing of such • The statewide residential water specifications for stationary sources in sources or categories is as follows: heater rule was revised due to technical 66 FR 15195 published March 16, 2001. stationary diesel engines in the D/FW infeasibility which means this rule will In addition to requiring NOX emissions nine-County area (see 117.410(b)(4)), achieve slightly less reductions than if control requirements for those sources, stationary reciprocating internal the approved rule had proved feasible. we are proposing to approve the combustion engines located in the We believe this small loss in emission following NOX emissions requirements D/FW nine county area (see 117.410(a) reductions will be offset by other for the following affected sources with and (b)), metallurgical furnaces (see measures. This is further discussed in emissions greater than 50 Tons Per Year 117.410(b)(8)), container glass furnaces the Technical Support Document. We (TPY) in the D/FW 8-hour ozone (see 117.410(b)(10)(A)), and fiberglass have discussed the potential impact of nonattainment area. We have included furnaces (see 117.410(b)(10)(B) through the revised water heater rule in our the Chapter 117 citation for each source (D)). These new regulations provide an separate action on the 1997 8-hour category in the Table 8 below for additional 8.88 tons/day of reductions. ozone attainment demonstration for the reference purposes.

TABLE 8.—NOX EMISSIONS SPECIFICATIONS FOR THE D/FW 8-HOUR OZONE NONATTAINMENT AREA

Source NOX limit Additional information Citation

Reciprocating Internal Com- 2.0 g/hp-hr ...... Natural gas, rich burn, capacity ≥ 300 hp, 117.410(a)(1)(B)(i). bustion Engines. before January 1, 2000, also a 3.0 g/hp-hr limit of CO. Reciprocating Internal Com- 0.50 g/hp-hr ...... Natural gas, rich burn, capacity ≥ 300 hp, on 117.410(a)(9)(B)(ii). bustion Engines. or after January 1, 2000, also a 3.0 g/hp- hr limit of CO. Reciprocating Internal Com- 0.60 g/hp-hr ...... Gas-fired, rich burn, landfill gas ...... 117.410(b)(4)(A)(i). bustion Engines. Reciprocating Internal Com- 0.50 g/hp-hr ...... Gas-fired, rich burn, not using landfill gas .... 117.410(b)(4)(A)(ii). bustion Engines. Reciprocating Internal Com- 0.70 g/hp-hr ...... Gas-fired, lean burn, before June 1, 2007, 117.410(b)(4)(B)(i). bustion Engines. not modified afterwards. Reciprocating Internal Com- 0.60 g/hp-hr...... Gas-fired, lean burn, landfill gas, on or after 117.410(b)(4)(B)(ii)(I). bustion Engines. June 1, 2007. Reciprocating Internal Com- 0.50 g/hp-hr ...... Dual-fuel ...... 117.410(b)(4)(B)(ii)(II). bustion Engines. Duct Burners ...... 0.032 lb/MMBtu ...... Used in turbine exhausts, rated ≥ 10 MW .... 117.410(b)(6). Duct Burners ...... 0.15 lb/MMBtu ...... Used in turbine exhausts, 1.0 ( rated < 10 117.410(b)(6). MW. Duct Burners ...... 0.26 lb/MMBtu ...... Used in turbine exhausts, rated < 1.0 MW ... 117.410(b)(6). Lime Kilns ...... 3.7 lb/ton of CaO ...... Individual kiln basis ...... 117.410(b)(7)(A)(i). Lime Kilns ...... 3.7 lb/ton of CaO ...... Site-wide basis ...... 117.410(b)(7)(A)(ii). Ceramic and Brick Kilns ...... 40% NOX reduction ...... Using daily 2000 calendar year EI ...... 117.410(b)(7)(B)(i). Brick Kilns ...... 0.175 lb/ton of product ...... As option ...... 117.410(b)(7)(B)(ii). Ceramic Kilns ...... 0.27 lb/ton of product ...... As option ...... 117.410(b)(7)(B)(iii). Metallurgical Furnaces ...... 0.087 lb/MMBtu ...... Heat Furnace, March 1–October 31 any 117.410(b)(8)(A). year. Metallurgical Furnaces ...... 0.10 lb/MMBtu ...... Reheat Furnace, March 1–October 31 any 117.410(b)(8)(B). year. Metallurgical Furnaces ...... 0.45 lb/MMBtu ...... Lead smelting blast cupola and reverbera- 117.410(b)(8)(C). tory. Incinerators ...... 80% NOX reduction ...... Using real emissions of 2000 EI ...... 1117.410(b)(9)(A). Incinerators ...... 0.030 lb/MMBtu ...... As option ...... 117.410(b)(9)(B). Container Glass Furnaces ..... 4.0 lb/ton of glass pulled ...... Melting furnace, within 25% of permitted 117.410(b)(10)(A)(i), or production capacity, or MAER of permit 117.410(b)(10)(A)(ii). issued before June 1, 2007. Fiberglass Furnaces ...... 4.0 lb/ton product pulled ...... Mineral wool, cold-top electric ...... 117.410(b)(10)(B). Fiberglass Furnaces ...... 1.45 lb/ton product pulled ...... Mineral wool, regenerative ...... 117.410(b)(10)(C). Fiberglass Furnaces ...... 3.1 lb/ton product pulled ...... Mineral wool, non-regenerative ...... 117.410(b)(10)(D). Curing Ovens ...... 0.036 lb/MMBtu ...... Gas fired, used in mineral wool-type or tex- 117.410(b)(11). tile-type fiberglass.

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TABLE 8.—NOX EMISSIONS SPECIFICATIONS FOR THE D/FW 8-HOUR OZONE NONATTAINMENT AREA—Continued

Source NOX limit Additional information Citation

Ovens and Heaters ...... 0.036 lb/MMBtu ...... Natural gas-fired ...... 117.410(b)(12). Dryers ...... 0.036 lb/MMBtu ...... Natural gas-fired, used in organic solvent, 117.410(b)(13)(A). printing ink, clay, brick, ceramic tile, calcining, and vitrifying processes. Spray Dryers ...... 0.15 lb/MMBtu ...... Natural gas-fired, used in ceramic tile manu- 117.410(b)(13)(B). facturing processes.

The tables in this document are not emissions specifications under Part D of 14. What are the NOX emission intended to be exhaustive, but rather the Act because their resulting requirements for stationary diesel provide a guide for readers regarding emissions reductions will assist Texas engines in the D/FW area that we are NOX control requirements the affected in demonstrating attainment of the 8- proposing to approve? sources are likely to be required to hour ozone standard in the D/FW 8- This SIP revision requires reductions comply with in conjunction with hour ozone nonattainment area. of NOX emissions from stationary diesel today’s rulemaking action. To determine Therefore, we are proposing approval of engines in the D/FW area. The following whether or how your facility would be these requirements into the Texas SIP. Table 9 contains a summary of the NOX affected by this particular action, you emission specifications for stationary should refer to the actual text of 30 TAC diesel engines in the D/FW area. We Chapter 117, and the June 8, 2007 issue have included the Chapter 117 citation of the Texas Register (32 TexReg 3206). for each source category in the Table 9 We are proposing approval of these NOX below for convenience purposes.

TABLE 9.—NOX EMISSION REQUIREMENTS STATIONARY DIESEL ENGINES FOR THE D/FW 8-HOUR OZONE NONATTAINMENT AREA

Source NOX Emission Specification Citation

Diesel engines in service before March 1, 2009: not modified, reconstructed, or relo- 11.0 gram/hp-hr ...... 117.410(b)(4)(D). cated on or after March 1, 2009. Rated less than 50 hp: modified, installed reconstructed, or relocated on or after 5.0 gram/hp-hr ...... 117.410(b)(4)(E)(i). March 1, 2009. 50 hp [ rated < 100 hp: modified, installed, reconstructed, or relocated on or after 3.3 gram/hp-hr ...... 117.410(b)(4)(E)(ii). March 1, 2009. 100 hp [ rated < 750 hp: installed, modified, reconstructed, or relocated on or after 2.8 gram/hp-hr ...... 117.410(b)(4)(E)(iii). March 1, 2009. Rated ≥ 750 hp: installed, modified, reconstructed, or relocated on or after March 1, 4.5 gram/hp-hr ...... 117.310(b)(4)(E)(iv). 2009.

We are proposing to approve the similar units at Table VI of 66 FR 57230 15. What are the emissions above-listed NOX emission requirements published on November 14, 2001. We specifications for minor sources of NOX for diesel engines because they are in are therefore proposing approval of in D/FW area that we are proposing to agreement with those found in 40 CFR these NOX emission requirements under approve? section 89.112, and EPA’s Document Part D of the Act because their resulting Number 420–R–98–016 dated August emissions reductions will assist Texas These minor sources include 1998, titled ‘‘Final Regulatory Impact in demonstrating attainment of the 8- stationary reciprocating internal combustion engines that are not a major Analysis: Control of Emissions from hour ozone standard within the D/FW 8- source of NO (emit, when Nonroad Diesel Engines.’’ In addition, hour ozone nonattainment area. X the above-listed NO emission uncontrolled, less than 50 Tons Per Year X Therefore, we are proposing approval of requirements for diesel engines are (TPY) of NOX). See sections 117.2100 these requirements into the Texas SIP. consistent with those we approved for and 117.2103 for more information.

TABLE 10.—NOX EMISSIONS REQUIREMENTS FOR MINOR SOURCES IN THE D/FW AREA

NOX emission Source specification Additional information Citation

Reciprocating Internal Combustion Engines .. 0.60 g/hp-hr ...... Stationary, rich-burn, using landfill gas-fired 117.2110(a)(1)(A)(i). Reciprocating Internal Combustion Engines .. 0.50 g/hp-hr ...... Stationary, rich-burn, not landfill gas-fired ..... 117.2110(a)(1)(A)(ii). Reciprocating Internal Combustion Engines .. 0.70 g/hp-hr ...... Stationary, lean-burn, in service before June 117.2010(a)(1)(B)(i). 1, 2007. Reciprocating Internal Combustion Engines .. 0.60 g/hp-hr ...... Stationary, lean-burn, in service on or after 117.2010(a)(1)(B)(i)(I). June 1, 2007, using landfill gas. Reciprocating Internal Combustion Engines .. 0.50 g/hp-hr ...... Stationary, lean-burn, in service on or after 117.2010(a)(1)(B)(i)(II). June 1, 2007, not using landfill gas. Reciprocating Internal Combustion Engines .. 5.83 g/hp-hr ...... Stationary, dual-fuel ...... 117.2010(a)(2).

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As an alternative, a minor source from 16. What are the NOX emissions requirements and related information the Table 10 above located within the D/ requirements for stationary RICE in East for these affected units. FW and having an annual capacity Texas that we are proposing to approve? On July 19, 2007 TCEQ announced factor of 0.0383 or less may choose The gas-fired stationary reciprocating implementation of Texas Senate Bill emissions specification of 0.060 lb/ internal combustion engines located in 2000, passed in 2007 by the 80th Texas MMBtu, instead. See 117.2110(a)(4). Anderson, Brazos, Burleson, Camp, Legislative Session. The Bill directs the TCEQ to develop an incentive grant The NOX emissions requirements for Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Harrison, Henderson, program for the partial reimbursement the above-listed minor sources of NOX and their resulting emissions reductions Hill, Hopkins, Hunt, Lee, Leon, of capital costs for installing will assist in demonstrating attainment Limestone, Madison, Marion, Morris, nonselective catalytic reduction (NSCR) Nacogdoches, Navarro, Panola, Rains, systems to reduce emissions of NOX of the 8-hour ozone NAAQS within the Robertson, Rusk, Shelby, Smith, from existing stationary gas-fired rich- D/FW 8-hour ozone nonattainment area. Upshur, Van Zandt, or Wood Texas burn compressor engines. For more Therefore, we are proposing approval of Counties are subject to these information see http:// these requirements into the Texas NOX requirements. See section 117.3300 for www.tceq.state.tx.us/implementation/ SIP. more information. The following Table air/rules/sb2003.html (URL dating July 11 contains NOX emissions 20, 2007).

TABLE 11.—NOX EMISSIONS REQUIREMENTS FOR STATIONARY RECIPROCATING INTERNAL COMBUSTION ENGINES IN EAST TEXAS

NOX Emission Source specification Additional information Citation

Reciprocating Internal Combustion Engines .. 1.00 g/hp-hr ...... Rich burn, gas-fired, capacity < 500 hp ...... 117.3310(a)(1). Reciprocating Internal Combustion Engines .. 0.60 g/hp-hr ...... Rich burn, landfill gas-fired, capacity ≥ 500 117.3010(a)(2)(A). hp. Reciprocating Internal Combustion Engines .. 0.50 g/hp-hr ...... Rich burn, not landfill gas-fired, capacity ≥ 117.3010(a)(2)(B). 500 hp.

The NOX emissions requirements for maintenance of the standard in the 17. What are the compliance schedules the stationary reciprocating internal eastern half of the State of Texas, and for NOX emissions sources that we are combustion engines in East and Central they enhance the Texas SIP. Therefore, proposing to approve? Texas and their resulting emissions we are proposing approval of these The following Table 12 contains a reductions will assist in demonstrating requirements into the May 30, 2007 summary of the NOX-related compliance attainment of the 8-hour ozone NAAQS Texas SIP under part D, and sections schedules for major sources, utility within the Houston-Galveston-Brazoria, 110 and 116 of the Act, respectively. generating units, and minor sources D/FW, and Beaumont/Port Arthur areas. affected by the May 30, 2007 SIP Furthermore, these reductions will revision. See sections 117.9000 through contribute to the continued 117.9500 for more information.

TABLE 12.—NOX COMPLIANCE SCHEDULES FOR POINT SOURCES UNDER CHAPTER 117

Source Compliance date Additional information Citation

Major, D/FW ...... Install all NOX abatement equipment by no later than May 30, Increment of 117.9030(a)(1). 2007. Progress (IOP) re- quirement. Major, D/FW ...... Submit initial control plan per 117.450 by no later than June 1, 8-hour attainment 2008.. demonstration. Comply with emissions requirements by no later than March 1, Requirement ...... 117.9030(b). 2009 when source subject to 117.410(b)(1), (2), (4), (5), (6), (7)(A), (10), and (14). Diesel and dual-fuel engines comply with testing and hours of operation for testing and maintenance by no later than March 1, 2009. Gas turbines or IC engines claiming run time exemption comply with the run time requirements by no later than March 1, 2009. D/FW ...... Submit initial control plan per 117.1350 by no later than June 1, Utility electric genera- 117.9130(a)(1) and (2). 2008. tion sources. Comply with all other requirements by no later than March 1, 2009. Minor, D/FW ...... Rich-burn, gas-fired stationary RICE comply with NOX require- RICE fired with dif- 117.9210. ments by no later than March 1, 2009. ferent fuel types. Lean-burn, gas-fired stationary RICE comply with NOX require- ments by no later than March 1, 2010. Diesel-fired and dual-fuel stationary RICE comply with NOX re- quirements by no later than March 1, 2009. East and Central Updated final control plan per 117.3054 be submitted by no later Utility electric genera- 117.9300(2)(B). Texas. than January 31, 2007. tion sources.

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TABLE 12.—NOX COMPLIANCE SCHEDULES FOR POINT SOURCES UNDER CHAPTER 117—Continued

Source Compliance date Additional information Citation

East Texas ...... Stationary RICE comply with NOX requirements by no later than East Texas combus- 117.9340(a). March 1, 2010. tion sources.

Including these compliance dates, • Is certified as not having a ENVIRONMENTAL PROTECTION summarized in Table 12 above, in the significant economic impact on a AGENCY rule provides for enforceability and substantial number of small entities practicability of the NOX rule, and under the Regulatory Flexibility Act (5 40 CFR Part 52 enhances the May 30, 2007 Texas SIP; U.S.C. 601 et seq.); [EPA–R06–OAR–2007–1147; FRL–8690–4] therefore, we are proposing their • Does not contain any unfunded approval into the May 30, 2007 Texas mandate or significantly or uniquely Approval and Promulgation of SIP. affect small governments, as described Implementation Plans; Texas; Control III. Proposed Actions in the Unfunded Mandates Reform Act of Emissions of Nitrogen Oxides (NOX) of 1995 (Public Law 104–4); From Cement Kilns Today, we are proposing to approve • Does not have Federalism revisions to the 30 TAC Chapter 117 implications as specified in Executive AGENCY: Environmental Protection into the Texas SIP. This rulemaking Order 13132 (64 FR 43255, August 10, Agency (EPA). covers four separate actions. First, we 1999); ACTION: Proposed rule. are proposing to approve the repeal of • Is not an economically significant all non-substantive changes to the SIP’s SUMMARY: The EPA is proposing regulatory action based on health or Chapter 117 rules and the reformatting approval of revisions to the Texas State safety risks subject to Executive Order of current Chapter 117 because the Implementation Plan (SIP). The State of 13045 (62 FR 19885, April 23, 1997); reformatted revision will better Texas submitted this SIP revision to the • Is not a significant regulatory action accommodate future additions/revisions 30 TAC Chapter 117 to us on May 30, subject to Executive Order 13211 (66 FR to the rules. Second, we are proposing 2007 (May 30, 2007 submittal) 28355, May 22, 2001); to approve substantive revisions to the concerning control of emissions of NO • Is not subject to requirements of X current NOX SIP’s Chapter 117 rules for from cement kilns operating in Bexar, Section 12(d) of the National D/FW NOX major point sources. Third, Comal, Ellis, Hays, and McLennan we are proposing to approve substantive Technology Transfer and Advancement Counties of Texas. We are proposing to revisions to the current Texas SIP’s Act of 1995 (15 U.S.C. 272 note) because approve the cement kilns provisions of Chapter 117 rules for D/FW minor application of those requirements would the May 30, 2007 submittal for cement be inconsistent with the Clean Air Act; sources of NOX. Fourth, we are kilns operating in these five Texas and proposing to approve substantive • Counties. We are also proposing to revisions to the current Texas SIP’s Does not provide EPA with the approve the May 30, 2007 submittal as Chapter 117 rules for combustion discretionary authority to address, as meeting the Reasonably Available appropriate, disproportionate human sources in East Texas. These NOX Control Technology (RACT) health or environmental effects, using reductions will assist the D/FW area in requirements for NOX emissions from attaining the 8-hour ozone NAAQS. practicable and legally permissible cement kilns operating in the Dallas methods, under Executive Order 12898 Fort Worth (D/FW) 8-hour ozone IV. Statutory and Executive Order (59 FR 7629, February 16, 1994). Reviews nonattainment area. The NOX emissions In addition, this rule does not have controls associated with this SIP Under the Clean Air Act, the tribal implications as specified by revision will assist the D/FW area to Administrator is required to approve a Executive Order 13175 (65 FR 67249, attain the Federal 8-hour ozone National SIP submission that complies with the November 9, 2000), because the SIP is Ambient Air Quality Standards provisions of the Act and applicable not approved to apply in Indian country (NAAQS). We are proposing approval of Federal regulations. 42 U.S.C. 7410(k); located in the state, and EPA notes that this action as meeting sections 110 and 40 CFR 52.02(a). Thus, in reviewing SIP it will not impose substantial direct 182 of the Federal Clean Air Act (the submissions, EPA’s role is to approve costs on tribal governments or preempt Act). state choices, provided that they meet tribal law. DATES: Comments must be received on the criteria of the Clean Air Act. Authority: 42 U.S.C. 7401 et seq. Accordingly, this proposed action or before August 11, 2008. merely approves state law as meeting List of Subjects in 40 CFR Part 52 ADDRESSES: Submit your comments, Federal requirements and does not Environmental protection, Air identified by Docket No. EPA–R06– impose additional requirements beyond pollution control, Hydrocarbons, OAR–2007–1147, by one of the those imposed by state law. For that Incorporation by reference, following methods: • reason, this proposed action: Intergovernmental relations, Nitrogen Federal eRulemaking Portal: http:// • Is not a ‘‘significant regulatory oxide, Reporting and recordkeeping www.regulations.gov. Follow the on-line action’’ subject to review by the Office requirements, Volatile organic instructions for submitting comments. • of Management and Budget under compounds. U.S. EPA Region 6 ‘‘Contact Us’’ Executive Order 12866 (58 FR 51735, Web site: http://epa.gov/region6/ Dated: July 1, 2008. October 4, 1993); r6coment.htm. Please click on ‘‘6PD’’ • Does not impose an information Richard E. Greene, (Multimedia) and select ‘‘Air’’ before collection burden under the provisions Regional Administrator, Region 6. submitting comments. of the Paperwork Reduction Act (44 [FR Doc. E8–15814 Filed 7–10–08; 8:45 am] • E-mail: Mr. Guy Donaldson at U.S.C. 3501 et seq.); BILLING CODE 6560–50–P [email protected]. Please also

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send a copy by email to the person material, such as copyrighted material, 40 Code of Federal Regulations (CFR) listed in the FOR FURTHER INFORMATION will be publicly available only in hard part 2. CONTACT section below. copy. Publicly available docket B. Tips for Preparing Your Comments. • Fax: Mr. Guy Donaldson, Chief, Air materials are available either When submitting comments, remember Planning Section (6PD–L), at fax electronically in http:// to: number 214–665–7263. www.regulations.gov or in hard copy at • Identify the rulemaking by docket • Mail: Mr. Guy Donaldson, Chief, the Air Planning Section (6PD–L), number and other identifying Air Planning Section (6PD–L), Environmental Protection Agency, 1445 information (subject heading, Federal Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas Register date and page number). • Ross Avenue, Suite 1200, Dallas, Texas 75202–2733. The file will be made Follow directions—The agency may 75202–2733. available by appointment for public ask you to respond to specific questions • Hand or Courier Delivery: Mr. Guy inspection in the Region 6 FOIA Review or organize comments by referencing a Donaldson, Chief, Air Planning Section Room between the hours of 8:30 a.m. CFR part or section number. • (6PD–L), Environmental Protection and 4:30 p.m. weekdays except for legal Explain why you agree or disagree, Agency, 1445 Ross Avenue, Suite 1200, holidays. Contact the person listed in suggest alternatives, and substitute Dallas, Texas 75202–2733. Such language for your requested changes. the FOR FURTHER INFORMATION CONTACT • deliveries are accepted only between the paragraph below to make an Describe any assumptions and hours of 8 a.m. and 4 p.m. weekdays appointment. If possible, please make provide any technical information and/ except for legal holidays. Special the appointment at least two working or data that you used. • If you estimate potential costs or arrangements should be made for days in advance of your visit. There will burdens, explain how you arrived at deliveries of boxed information. be a 15 cent per page fee for making Instructions: Direct your comments to your estimate in sufficient detail to photocopies of documents. On the day Docket ID No. EPA–R06–OAR–2007– allow for it to be reproduced. of the visit, please check in at the EPA 1147. The EPA’s policy is that all • Provide specific examples to Region 6 reception area at 1445 Ross comments received will be included in illustrate your concerns, and suggest Avenue, Suite 700, Dallas, Texas 75202– the public docket without change and alternatives. 2733. may be made available online at http:// • Explain your views as clearly as www.regulations.gov, including any The State submittal is also available possible, avoiding the use of profanity personal information provided, unless for public inspection at the State Air or personal threats. the comment includes information Agency listed below during official • Make sure to submit your claimed to be Confidential Business business hours by appointment: comments by the comment period Information (CBI) or other information Texas Commission on Environmental deadline identified. Quality (TCEQ), Office of Air Quality, the disclosure of which is restricted by II. Background statute. Do not submit information 12124 Park 35 Circle, Austin, Texas through http://www.regulations.gov or 78753. Table of Contents e-mail that you consider to be CBI or FOR FURTHER INFORMATION CONTACT: Mr. 1. What are we proposing to approve? otherwise protected from disclosure. Alan Shar, Air Planning Section (6PD– 2. What sections of the May 30, 2007 The http://www.regulations.gov Web L), Environmental Protection Agency, submittal will become part of Texas SIP? 3. What sections of the May 30, 2007 site is an ‘‘anonymous access’’ system, Region 6, 1445 Ross Avenue, Suite 700, which means EPA will not know your submittal will not become a part of Texas Dallas, Texas 75202–2733, telephone SIP? identity or contact information unless (214) 665–6691, fax (214) 665–7263, 4. What Texas Counties will this rulemaking you provide it in the body of your e-mail address shar.alan @epa.gov. affect? comment. If you send an e-mail SUPPLEMENTARY INFORMATION: 5. What are NOX? comment directly to EPA without going Throughout this document ‘‘we,’’ ‘‘us,’’ 6. What is Ozone and why do we regulate it? through http://www.regulations.gov, 7. What is a SIP? and ‘‘our’’ refer to EPA. your e-mail address will be 8. What are the NOX control emissions automatically captured and included as I. General Information requirements that we approved for Texas part of the comment that is placed in the under the 1-hour ozone SIP? What Should I Consider as I Prepare My public docket and made available on the 9. What are the NOX control emissions Comments for EPA? requirements that we are proposing to Internet. If you submit an electronic approve for Texas under the 8-hour comment, EPA recommends that you A. Submitting CBI. Do not submit this ozone SIP? include your name and other contact information to EPA through http:// 10. What is the proposed compliance information in the body of your www.regulations.gov or e-mail. Clearly schedule for cement kilns? comment and with any disk or CD–ROM mark the part or all of the information you submit. If EPA cannot read your that you claim to be CBI. For CBI 1. What are we proposing to approve? comment due to technical difficulties information in a disk or CD–ROM that On May 30, 2007, TCEQ submitted and cannot contact you for clarification, you mail to EPA, mark the outside of the rule revisions to 30 TAC, Chapter 117, EPA may not be able to consider your disk or CD–ROM as CBI and then ‘‘Control of Air Pollution from Nitrogen comment. Electronic files should avoid identify electronically within the disk or Compounds,’’ as a revision to the Texas the use of special characters, any form CD–ROM the specific information that SIP, identified by TCEQ as rule project of encryption, and be free of any defects is claimed as CBI. In addition to one No. 2006–004–117–EN, for cement kilns or viruses. complete version of the comment that operating in Bexar, Comal, Ellis, Hays, Docket: All documents in the docket includes information claimed as CBI, a and McLennan Counties. In this are listed in the http:// copy of the comment that does not rulemaking, we are proposing to www.regulations.gov index. Although contain the information claimed as CBI approve the NOX control requirements listed in the index, some information is must be submitted for inclusion in the for cement kilns operating in these five not publicly available, e.g., CBI or other public docket. Information so marked Texas Counties. See sections 2, 3, 4, 8, information whose disclosure is will not be disclosed except in and 9 of this document for more restricted by statute. Certain other accordance with procedures set forth in information. The NOX emissions

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controls associated with this SIP 182(f) of the Act. These two sections, engineering firms, and Federal, State, revision will assist the D/FW area to taken together, establish the and local regulatory agencies. States can attain the Federal 8-hour ozone NAAQS, requirements for Texas to submit a NOX use information in the EPA ACTs to and will enhance the Texas SIP. We are RACT regulation for cement kilns (a develop their RACT regulations. For a also proposing to approve the cement major source of NOX) in ozone listing of EPA’s ACT-related documents, kilns provisions of the May 30, 2007 nonattainment areas classified as including the ACT document for submittal as meeting the RACT moderate (such as D/FW) and above. A Cement Manufacturing, see http:// requirements for NOX emissions from State may choose to develop its own www.epa.gov/ttn/naaqs/ozone/ctg_act/ cement kilns operating in the D/FW 8- RACT requirements on a case by case index.htm (URL dated April 22, 2008). hour ozone nonattainment area. By basis, considering the economic and The Chapter 117 cement kilns proposing to approve the cement kilns technical circumstances of an provisions were last approved by EPA at provisions of the May 30, 2007 69 FR 15681 published on March 26, submittal we are stating that Texas is individual source. In addition, section 183(c) of the Act provides that we will 2004. meeting the NOX RACT requirements issue technical documents which for cement kilns in the D/FW area. 2. What sections of the May 30, 2007 identify alternative controls for The EPA has defined RACT as the submittal will become part of Texas lowest emission limitation that a stationary sources of NOX. The EPA SIP? particular source can meet by applying publishes the NOX related Alternative a control technique that is reasonably Control Techniques documents (ACTs) Table 1 below contains a summary list available considering technological and for this purpose. The information in the of the sections of 30 TAC, Chapter 117 economic feasibility. See 44 FR 53761, ACT documents is generated from that Texas proposed on May 30, 2007, September 17, 1979. This requirement is literature sources and contacts, control for cement kilns to become part of the established by sections 182(b)(2) and equipment vendors, EPA papers, Texas SIP.

TABLE 1.—SECTION NUMBERS AND SECTION DESCRIPTORS OF 30 TAC, CHAPTER 117 AFFECTED BY THE CEMENT KILNS RULE

Section No. Description

Section 117.3100 ...... Applicability. Section 117.3101 ...... Cement Kilns Definitions. Section 117.3103 ...... Exemptions. Section 117.3110 ...... Emission Specifications. Section 117.3120 ...... Source Cap. Section 117.3123 ...... Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements. Section 117.3140 ...... Continuous Demonstration of Compliance. Section 117.3142 ...... Emission Testing and Monitoring for Eight-Hour Attainment Demonstration. Section 117.3145 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.9320 ...... Compliance Schedule for Cement Kilns.

You can find complete TCEQ’s rules 4. What Texas Counties will this 6. What is ozone and why do we and regulations at http://www.tceq. rulemaking affect? regulate it? state.tx.us/rules/indxpdf.html. Table 3 below lists the five Texas Ozone is a gas composed of three 3. What sections of the May 30, 2007 Counties that will be affected by the oxygen atoms. Ground level ozone is submittal will not become a part of cement kilns rule. generally not emitted directly from a Texas SIP? vehicle’s exhaust or an industrial smokestack, but is created by a chemical Per TCEQ’s request the following TABLE 3.—TEXAS COUNTIES AF- reaction between NO and VOCs in the sections, listed in Table 2 below, of the FECTED BY CEMENT KILN RULE- X presence of sunlight and high ambient cement kilns rule will not become a part MAKING OF 2007 temperatures. Thus, ozone is known of EPA-approved Texas SIP. These primarily as a summertime air pollutant. sections mainly pertain to the control of Texas counties Explanation NO and VOCs are precursors of ozone. ammonia, that is not a precursor to X Motor vehicle exhaust and industrial ozone, and are not required to be a part Bexar, Comal, Ellis, See section emissions, gasoline vapors, chemical of the SIP. Hays, and 117.3101. McLennan. solvents and natural sources emit NOX and VOCs. Urban areas tend to have TABLE 2.—SECTIONS OF CHAPTER 117 high concentrations of ground-level 5. What are NOX? NOT IN EPA-APPROVED TEXAS SIP ozone, but areas without significant industrial activity and with relatively Section No. Explanation Nitrogen oxides belong to the group of criteria air pollutants. NOX are low vehicular traffic are also subject to 117.3123(f), Not a part of EPA-approved produced from burning fuels, including increased ozone levels because wind and Texas SIP. gasoline and coal. Nitrogen oxides react carries ozone and its precursors 117.3125. with volatile organic compounds (VOC) hundreds of miles from their sources. to form ozone or smog, and are also Repeated exposure to ozone pollution Although the above sections of 30 major components of acid rain. Also see may cause lung damage. Even at very TAC Chapter 117 are not to become a http://www.epa.gov/air/urbanair/nox/. low concentrations, ground-level ozone part of Texas SIP, they will continue to triggers a variety of health problems remain enforceable at the State level. including aggravated asthma, reduced

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lung capacity, and increased quality primarily by addressing air Ellis County is located within the D/ susceptibility to respiratory illnesses pollution at its point of origin. FW 8-hour ozone nonattainment area. like pneumonia and bronchitis. It can 8. What are the NO control emissions The ozone season for the D/FW area is also have detrimental effects on plants X requirements that we approved for March 1 through October 31 of each and ecosystems. Texas under the 1-hour ozone SIP? calendar year. See 40 CFR 58, Appendix 7. What is a SIP? D, Table D–3, and 40 CFR 81.39. For We approved the NOX control Ellis County, during the non-ozone The SIP is a set of air pollution emission requirements for cement kilns season (November 1 through end-of- regulations, control strategies, other at 69 FR 15681 published on March 26, February of each calendar year), the means or techniques and technical 2004. See Table III of that document. We cement kilns NO control requirements analyses developed by the state, to have included that Table in our TSD X that we approved at 69 FR 15681 will ensure that the state meets the NAAQS. prepared for this rulemaking action. The SIP is required by Section 110 and continue to remain in effect. However, 9. What are the NO control emissions other provisions of the Act. These SIPs X during the ozone season, March 1 requirements that we are proposing to can be extensive, containing state through October 31 of each calendar approve for Texas under the 8-hour regulations or other enforceable year, the cement kilns in Ellis County documents and supporting information ozone SIP? must comply with a source cap formula such as emissions inventories, Under today’s rulemaking action, the calculated and expressed in Tons Per monitoring networks, and modeling NOX control requirements that we Day (TPD) of actual NOX emissions, per demonstrations. Each state must submit approved on March 26, 2004 (69 FR site, on a 30-day rolling average basis. these regulations and control strategies 15681) for cement kilns operating in See equation 117.3123(b). The following to EPA for approval and incorporation Texas Counties of Bexar, Comal, Hays, Table 5 contains a summary list of NOX into the federally-enforceable SIP. Each and McLennan still will continue to control requirements for cement kilns federally-approved SIP protects air remain in effect. under the 8-hour ozone SIP.

TABLE 5.—NOX CONTROL REQUIREMENTS FOR CEMENT KILNS UNDER THE 8-HOUR OZONE SIP

Source County NOX emission requirement Citation

Long wet kiln ...... Bexar, Comal, Hays, 6.0 lb NOX/ton of clinker produced ...... 117.3110(a)(1)(A). McLennan. Long dry kiln ...... Bexar, Comal, Hays, 5.1 lb NOX/ton clinker of produced ...... 117.3110(a)(2). McLennan. Preheater kiln ...... Bexar, Comal, Hays, 3.8 lb NOX/ton of clinker produced ...... 117.3110(a)(3). McLennan. Precalciner or preheater- Bexar, Comal, Hays, 2.8 lb NOX/ton of clinker produced ...... 117.3110(a)(4). precalciner kiln. McLennan. Long wet kiln ...... Ellis ...... 4.0 lb NOX/ton of clinker produced, outside D/FW ozone 117.3110(a)(1)(B). season. Preheater kiln ...... Ellis ...... 3.8 lb NOX/ton of clinker produced, outside D/FW ozone 117.3110(a)(3). season. Long dry kiln ...... Ellis ...... 5.1 lb NOX/ton clinker of produced, outside D/FW ozone 117.3110(a)(2). season. Precalciner or preheater- Ellis ...... 2.8 lb NOX/ton of clinker produced, outside D/FW ozone 117.3110(a)(4). precalciner kiln. season. Portland cement kiln...... Ellis ...... During D/FW ozone season, 30-day rolling average, 117.3123(b). source cap equation 117.3123(b), with the 2003–2005 reported average annual clinker production, limit is equivalent to 1.7 lb NOX/ton of clinker produced for dry preheater-precalciner or precalciner kilns, or 3.4 lb NOX/ ton of clinker produced for long wet kilns.

The cement kilns rule does not EPA–453/R–94–004, and ‘‘NOX Control 10. What are the compliance schedules require or endorse a specific post Technologies for the Cement Industry’’ for NOX emissions from cement kilns combustion NOX control technology, Final Report, EPA Contract No. 68-D98– that we are proposing to approve? and allows the owners or operators to 026, dated September 19, 2000, and are choose their preferred method of comparable to or more stringent than The compliance schedule for cement compliance as long as the source cap controls to be implemented in other kilns located in Texas Counties of Bexar, Comal, Hays, and McLennan will limit, per site, is being met. These NOX parts of the country for RACT purposes. continue to remain in effect as we control requirements will result in a 9.7 Therefore, we are proposing their approved them at 69 FR 15681. See TPD of NOX reduction from cement approval into Texas SIP, and as meeting Table IV of that document. We have kilns in Ellis County, and will enhance the RACT requirement for the D/FW 8- included that Table in our TSD the Texas SIP. We contend that the hour ozone nonattainment area. See our prepared for this rulemaking action. above NOX control requirements for TSD prepared in conjunction with this existing cement kilns in the D/FW area rulemaking action for more information. The following Table 6 contains are more stringent than those found in summary of the NOX compliance our reference documents ‘‘Alternative schedule-related information for cement Control Techniques Document—NOX kilns in Ellis County. See section Emissions from Cement Manufacturing’’ 117.9320(c) for more information.

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TABLE 6.—NOX COMPLIANCE SCHEDULES FOR CEMENT KILNS IN ELLIS COUNTY UNDER CHAPTER 117

Source Compliance date Additional information Citation

Cement Kilns—Ellis County .... Comply with testing, monitoring, notification, recordkeeping, 8-hour attainment demonstra- 117.9320. and reporting requirements as soon as practicable but no tion requirement. later than March 1, 2009.

We believe that including the substantial number of small entities DEPARTMENT OF COMMERCE compliance dates in the rule provides under the Regulatory Flexibility Act (5 for enforceability and practicability of U.S.C. 601 et seq.); National Oceanic and Atmospheric Administration the NOX rule, and enhances the Texas • Does not contain any unfunded SIP. The March 1, 2009 compliance date mandate or significantly or uniquely 50 CFR Parts 216 and 300 for cement kilns in Ellis County is affect small governments, as described consistent with the implementation in the Unfunded Mandates Reform Act [Docket No. 070717339–8765–02] requirement set forth in 40 CFR of 1995 (Pub. L. 104–4); 51.912(a)(3). Therefore, we are • proposing their approval into Texas SIP, Does not have Federalism RIN 0648–AV37 and as meeting the RACT requirement implications as specified in Executive for the D/FW 8-hour ozone Order 13132 (64 FR 43255, August 10, International Fisheries; Pacific Tuna nonattainment area. 1999); Fisheries; Revisions to Regulations for • Is not an economically significant Vessels Authorized To Fish for Tuna III. Proposed Action regulatory action based on health or and Tuna-like Species in the Eastern Today, we are proposing to approve safety risks subject to Executive Order Tropical Pacific Ocean and to revisions to the 30 TAC Chapter 117 13045 (62 FR 19885, April 23, 1997); Requirements for the Submission of into Texas SIP. In this rulemaking we Fisheries Certificates of Origin • Is not a significant regulatory action are proposing to approve the cement subject to Executive Order 13211 (66 FR AGENCY: National Marine Fisheries kilns provisions of the May 30, 2007 28355, May 22, 2001); Service (NMFS), National Oceanic and submittal for cement kilns operating in • Is not subject to requirements of Atmospheric Administration (NOAA), Bexar, Comal, Ellis, Hays, and Commerce. McLennan Counties of Texas. We are Section 12(d) of the National also proposing to approve the May 30, Technology Transfer and Advancement ACTION: Proposed rule; collection-of- 2007 submittal as meeting the RACT Act of 1995 (15 U.S.C. 272 note) because information requirements; request for comments. requirements for NOX emissions from application of those requirements would be inconsistent with the Clean Air Act; cement kilns operating in the D/FW 8- SUMMARY: and NMFS proposes to revise hour ozone nonattainment area. These regulations governing vessels authorized • NOX reductions will assist the D/FW Does not provide EPA with the by the United States to fish for tuna and area to attain the 8-hour ozone NAAQS, discretionary authority to address, as tuna-like species in the eastern tropical and enhance the Texas SIP. appropriate, disproportionate human Pacific Ocean (ETP). This proposed rule IV. Statutory and Executive Order health or environmental effects, using would update and clarify regulations Reviews practicable and legally permissible promulgated by NMFS to implement the methods, under Executive Order 12898 Marine Mammal Protection Act, the Under the Clean Air Act, the (59 FR 7629, February 16, 1994). Administrator is required to approve a Tuna Conventions Act, the Dolphin SIP submission that complies with the In addition, this rule does not have Protection Consumer Information Act, provisions of the Act and applicable tribal implications as specified by and resolutions adopted by the Inter- Federal regulations. 42 U.S.C. 7410(k); Executive Order 13175 (65 FR 67249, American Tropical Tuna Commission 40 CFR 52.02(a). Thus, in reviewing SIP November 9, 2000), because the SIP is (IATTC) and by the Parties to the submissions, EPA’s role is to approve not approved to apply in Indian country Agreement on the International Dolphin state choices, provided that they meet located in the state, and EPA notes that Conservation Program (AIDCP). This the criteria of the Clean Air Act. it will not impose substantial direct proposed rule would modify the Accordingly, this action merely costs on tribal governments or preempt procedures and requirements for the proposes to approve state law as tribal law. Vessel Register, the list of vessels authorized to fish for tuna and tuna-like meeting Federal requirements and does List of Subjects in 40 CFR Part 52 not impose additional requirements species in the ETP. Requirements for the beyond those imposed by state law. For Environmental protection, Air submission of certifications by that reason, this action: pollution control, Hydrocarbons, importers would also be revised. This • Is not a ‘‘significant regulatory Incorporation by reference, proposed rule is intended to clarify the action’’ subject to review by the Office Intergovernmental relations, Nitrogen regulations, facilitate management of of Management and Budget under oxide, Reporting and recordkeeping U.S. vessels, and update the regulations Executive Order 12866 (58 FR 51735, requirements, Volatile organic to be consistent with resolutions October 4, 1993); compounds. adopted by the members of the IATTC • and the Parties to the AIDCP. Does not impose an information Dated: July 1, 2008. collection burden under the provisions DATES: Comments on the proposed of the Paperwork Reduction Act (44 Richard E. Greene, regulations and collection-of- U.S.C. 3501 et seq.); Regional Administrator, Region 6. information requirements must be • Is certified as not having a [FR Doc. E8–15812 Filed 7–10–08; 8:45 am] received by 5 p.m. Pacific Standard significant economic impact on a BILLING CODE 6560–50–P Time, on August 11, 2008. A public

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hearing will be held on July 28, 2008, waters of the ETP bounded by the coast added: (1) to consider a request for at 9 a.m. of the Americas, the 40° N. latitude and active status as frivolous if a purse seine ADDRESSES: You may submit comments 40° S. latitude, and the 150° W. vessel was listed as active but did not on the proposed rule and on the longitude (50 Code of Federal fish for tuna at all in the Convention collection of information requirements, Regulations (CFR) section 300.21). The Area; and (2) to remove vessels from the identified by RIN 0648–AV37, by any IATTC oversees fishery management Vessel Register if the owner lacks valid one of the following methods: issues, such as assessing the status of vessel documentation, or, for tuna purse • Electronic Submissions: Submit all tuna stocks, managing the cumulative seine vessels, if the owner has made a electronic public comments via the capacity of vessels fishing in the frivolous request or has notified NMFS Federal eRulemaking Portal: http:// Convention Area, addressing bycatch of of the intent to transfer the vessel to www.regulations.gov. Follow the non-target and protected species, and foreign registry and flag. This rule instructions for submitting comments. imposing time-area closures to conserve would require importers to submit • Fax: (562) 980–4027, Attention: tuna stocks. Resolutions under the certifications within 10 days of Susan Wang. IATTC are adopted by consensus and importing a shipment into the United • Mail: Submit written comments to are binding on the members of the States, rather than 30 days. Finally, this Susan Wang, National Marine Fisheries IATTC. Members of the IATTC and rule would require electronic Service, Southwest Region, Protected cooperating non-members are submissions of certifications by Resources Division, 501 West Ocean responsible for implementation of importers to be in Portable Document Blvd., Suite 4200, Long Beach, CA IATTC resolutions. In the United States, Format (PDF). In addition, this rule 90802–4213. the Tuna Conventions Act (16 U.S.C. would make numerous non-substantive Written comments regarding the 951 et seq.) authorizes the Secretary of modifications and clarifications to the burden-hour estimates or other aspects Commerce to promulgate regulations regulations. implementing IATTC resolutions. The of the collection-of-information Definitions requirements contained in this proposed Secretary’s authority has been delegated rule may be submitted to the Southwest to the Assistant Administrator for The definition for ‘‘Tuna product’’ Region and by e-mail to Fisheries, NMFS. would be revised in 50 CFR 216.3 to [email protected], or by fax The United States is also a Party to clarify that tuna products include only to (202) 395–7285. the AIDCP. The AIDCP was established products intended for human Instructions: All comments received in May 1998 when eight nations, consumption. A definition for ‘‘Tuna’’ are a part of the public record and will including the United States, signed a would be added to specify that the term generally be posted to http:// binding, international agreement to refers to fish of the genus Thunnus (i.e., www.regulations.gov without change. implement the International Dolphin albacore tuna, bigeye tuna, bluefin tuna, All Personal Identifying Information Conservation Program (IDCP). The longtail tuna, southern bluefin tuna, and (e.g., name, address, etc.) voluntarily agreement became effective on February yellowfin tuna) and the species submitted by the commenter may be 15, 1999, and provides greater Euthynnus (Katsuwonus) pelamis (i.e., publicly accessible. Do not submit protection to dolphin stocks and skipjack tuna). Definitions for ‘‘Albacore Confidential Business Information or enhanced conservation of yellowfin tuna,’’ ‘‘Bigeye tuna,’’ ‘‘Bluefin tuna,’’ otherwise sensitive or protected tuna and other living marine resources ‘‘Longtail tuna,’’ ‘‘Skipjack tuna,’’ information. NMFS will accept in the ETP. The IDCP and resolutions ‘‘Southern bluefin tuna,’’ and anonymous comments (please enter N/ adopted by the Parties to the AIDCP are ‘‘Yellowfin tuna’’ would also be added A in the required fields, if you wish to implemented domestically under the to 50 CFR 216.3 to identify the genus remain anonymous). Attachments to Marine Mammal Protection Act and species referred to by these electronic comments will be accepted in (MMPA) (16 U.S.C. 1361 et seq.). common names. This proposed rule would revise In 50 CFR 300.21, the definition for Microsoft Word, Excel, WordPerfect, or regulations at 50 CFR parts 216 and 300 ‘‘Vessel Register’’ would be removed Adobe PDF file formats only. A public hearing will be held at to facilitate management of U.S. vessels and replaced with a definition for NMFS, Southwest Regional Office, 501 authorized to fish for tuna and tuna-like ‘‘Regional Vessel Register’’ to include all species in the Convention Area and to West Ocean Boulevard, Suite 3400, commercial fishing vessels and CPFVs ensure consistency between operation of Long Beach, CA 90802–4213. Photo authorized to fish for tuna and tuna-like these vessels and resolutions adopted by identification is required to enter the species in the Convention Area, the IATTC and the IDCP. First, building. consistent with the definition used by collection of a vessel photograph and the IATTC. A definition for FOR FURTHER INFORMATION CONTACT: vessel information would be required ‘‘Commercial passenger fishing vessel’’ Susan Wang, NMFS, Southwest Region, for commercial fishing vessels and would be added to clarify that CPFVs Protected Resources Division, at (562) commercial passenger fishing vessels are vessels licensed for commercial 980–4199. (CPFVs) authorized to fish for tuna and passenger fishing purposes from which SUPPLEMENTARY INFORMATION: tuna-like species in the Convention passengers are permitted to conduct Area. Second, regulations for tuna purse sportfishing activities. A definition for Background seine vessels would be revised to ‘‘Tuna’’ would also be added to specify The United States is a member of the require: (1) Annual written notification that the term refers to fish of the genus IATTC, established in 1949 under the to list a small vessel as active or Thunnus and the species Euthynnus Convention for the Establishment of an inactive; (2) written notification of the (Katsuwonus) pelamis (i.e., skipjack Inter-American Tropical Tuna intent to transfer a vessel to foreign tuna). Commission (Convention). The IATTC registry and flag; (3) payment of an ETP provides an international forum to operator permit application fee; and (4) Vessel Register ensure the effective conservation and for vessels authorized to set on In June 2000, the IATTC adopted a management of highly migratory species dolphins, vessel inspections twice per ‘‘Resolution on a Regional Vessel of fish in the Convention Area. The year and the use of high-intensity Register’’ (C–00–06) to establish a Convention Area is defined to include floodlights. Additional criteria would be register of all vessels authorized to fish

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for tuna and tuna-like species in the information except for the vessel proposed revisions to the procedures at Convention Area. To maintain the photograph, and the HSFCA permit 50 CFR 300.22(b) for tuna purse seine Regional Vessel Register (Vessel application covers all of the required vessels to be listed on the Vessel Register), the IATTC requires each information except for the vessel Register and to requirements for tuna member nation to submit specific photograph, carrying capacity, and type purse seine vessels listed on the Vessel information for all vessels authorized to of fishing method(s). Revisions to the Register, including one requirement that fish for tuna and tuna-like species in the Pacific HMS permit application and the is also applicable to non-purse seine Convention Area. The information HSFCA permit application to collect the commercial fishing vessels and CPFVs required for the IATTC Vessel Register required additional information are authorized to fish for tuna and tuna-like includes: The vessel name and planned as actions separate from this species in the ETP. registration number; a photograph of the proposed rule. Under 50 CFR 300.22(b), tuna purse vessel with the registration number 50 CFR 300.22(a) requires the master seine vessels of 400 short tons (st) (362.8 legible; previous vessel name(s) and or person in charge of a commercial mt) carrying capacity or less must be flag; port of registry; the name and fishing vessel or CPFV listed on the categorized as active on the Vessel address of the owner(s) and managing Vessel Register to keep an accurate log Register if landings of tuna caught in the owner(s); International Radio Call Sign; of operations of the vessel. This rule Convention Area comprise more than 50 where and when built; length, beam, would update this provision to reflect percent of the vessel’s total landings, by and moulded depth; gross tonnage, fish differences in these reporting weight, for a given calendar year. To hold capacity in cubic meters, and requirements for tuna purse seine request active or inactive status for a vessels greater than 400 st (362.8 mt) carrying capacity in metric tons; engine vessel, the vessel owner must submit carrying capacity compared to reporting horsepower; and type of fishing payment of the vessel assessment fee requirements for tuna purse seine method(s). (also called the observer placement fee) vessels of 400 st (362.8 mt) carrying Under current regulations at 50 CFR associated with active or inactive status. capacity or less and for non-purse seine 300.22(b), submission of vessel Beginning in 2006, the Parties to the vessels. The rule would revise 50 CFR information to NMFS is mandatory for AIDCP have required payment of the 300.22(a) to clarify that for tuna purse large tuna purse seine vessels but vessel assessment fee only if a vessel: (1) seine vessels greater than 400 st (362.8 voluntary for all other vessels. NMFS Is listed as active and is required by the mt) carrying capacity, the master or AIDCP to carry an observer; or (2) is proposes to revise 50 CFR 300.22(b) to person in charge of the vessel must require the collection of vessel maintain and submit to the IATTC the listed as inactive and exceeds 400 st photographs and vessel information for record and bridge log issued by the (362.8 mt) carrying capacity (Resolution all U.S. commercial fishing vessels and IATTC, or a general logbook that A–06–01, Vessel Assessments and CPFVs authorized to fish for tuna and includes for each day the date, noon Financing). Tuna purse seine vessels of tuna-like species in the Convention position, and the tonnage of fish on 400 st (362.8 mt) carrying capacity or Area, so that all of these vessels would board by species. For tuna purse seine less are required to carry an observer be included on the Vessel Register. vessels of 400 st (362.8 mt) carrying only if the vessel is suspected of Currently, about 2,100 U.S. commercial capacity or less and for non-purse seine intentionally setting on dolphins fishing vessels and CPFVs are vessels on the Vessel Register, (AIDCP, Resolution on vessels of less authorized under several different maintaining and submitting reporting than 363 mt capacity, October 10, 2002). permit systems to fish for tuna and tuna- forms (logbooks) under existing state or None of the U.S. tuna purse seine like species in the Convention Area, Federal regulations (e.g., longline vessels of 400 st (362.8 mt) carrying including: (1) ETP tuna purse seine logbooks for Pacific pelagic longline capacity or less are required to carry an vessel permits (50 CFR 216.24); (2) vessels, described in 50 CFR 660.14(a)) observer and therefore have not been Pacific Highly Migratory Species (HMS) would be sufficient to comply with this required to pay the vessel assessment vessel permits (50 CFR part 660); and (3) requirement. fee since 2006. Under the current for vessels based in Hawaii and the U.S. On June 28, 2002, the IATTC adopted regulations, payment of the fee is the Pacific Islands, High Seas Fishing a ‘‘Resolution on the capacity of the only mechanism for vessel owners to Compliance Act (HSFCA) permits (50 tuna fleet operating in the ETP request active or inactive status for CFR part 300). Owners of large tuna (revised)’’ (Resolution C–02–03) to limit vessels of that size. To address this purse seine vessels must obtain both an the total capacity of the ETP tuna purse issue, the proposed rule would revise 50 ETP tuna purse seine vessel permit and seine fleet and to establish a subset list CFR 300.22(b) to require owners of an HSFCA permit in order to have a of active and inactive tuna purse seine purse seine vessels of 400 st (362.8 mt) vessel be categorized as active on the vessels as part of the Vessel Register. carrying capacity or less to submit Vessel Register. Together, the The U.S. tuna purse seine fleet annual written notification to request a applications for the ETP tuna purse operating in the ETP is limited to 8,969 vessel be categorized as active or seine vessel permit and HSFCA permit metric tons (mt) carrying capacity, thus inactive on the Vessel Register. To cover all of the required Vessel Register limiting the number of vessels allowed request active status, vessel owners or information except for the vessel to actively participate in the fishery managing owners would be required to photograph. This proposed rule would each year. On April 12, 2005, NMFS submit written notification by fax to the revise the ETP tuna purse seine vessel issued a final rule (69 FR 19004) Administrator, Southwest Region, permit application to require establishing procedures at 50 CFR including, but not limited to, all of the submission of a vessel photograph with 300.22(b) for U.S. tuna purse seine required Vessel Register information as the registration number legible. This vessels to be listed on the Vessel described above and the vessel owner or revision is subject to review and Register and be categorized as active or managing owner’s signature and approval by the Office of Management inactive, and establishing criteria for the business telephone and fax numbers. A and Budget (OMB) under the Paperwork removal of vessels from the Vessel faxed copy would provide a date and Reduction Act (PRA), 44 U.S.C. 3501 et Register. The active and inactive list is time stamp to prioritize applications on seq. The Pacific HMS permit application valid through December 31 of each year. a first-come, first-served basis. covers all of the required Vessel Register The paragraphs below describe Prioritization is necessary when the

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total capacity of vessels applying for allow removal of a tuna purse seine already provides notification to NMFS. active status exceeds the U.S. tuna purse vessel from the Vessel Register if the In accordance with available vessel seine fleet’s capacity (8,969 mt). To owner or managing owner submits capacity, vessels removed from the request inactive status, vessel owners or written notification of the intent to Vessel Register could be placed on the managing owners would be required to transfer the vessel to foreign registry and Vessel Register again by the United submit written notification by mail to flag. Removal of a tuna purse seine States or any government with the Administrator, Southwest Region, vessel from the Vessel Register prior to jurisdiction over the vessel that also including, but not limited to, the vessel transfer is necessary to protect the U.S. participates in the IATTC. name, registration number, and vessel tuna purse seine fleet’s capacity limit. 50 CFR 300.25(a) states that the owner or managing owner’s name, Each U.S. vessel on the active tuna Administrator, Southwest Region, will signature, business address, and purse seine list holds a certain portion directly notify owners and agents of business telephone and fax numbers. 50 (equal to the vessel’s carrying capacity) U.S. tuna vessels about fishery CFR 300.22(b) would also be revised to of the U.S. fleet’s capacity. If a vessel management recommendations made by require payment of the vessel listed as active is transferred, the the IATTC and approved by the assessment fee for tuna purse seine capacity held by that vessel could be Department of State, and that approved vessels of 400 st (362.8 mt) carrying transferred with it to the foreign nation, IATTC recommendations will be capacity or less only if the vessel is resulting in a loss of operating capacity announced in the Federal Register. This categorized as active on the Vessel for the U.S. and an increase in operating proposed rule would revise 50 CFR Register and is required to carry an capacity for the foreign nation. Removal 300.25(a) to remove the requirement of direct notification. Instead, NMFS observer. of the vessel from the Vessel Register 50 CFR 300.22(b)(4)(ii) states that a would notify the public of IATTC prior to transfer would prevent this request for active status on the Vessel recommendations and resolutions transfer of capacity. Under current Register is considered to be frivolous if through appropriate rulemaking in the regulations, NMFS may remove a tuna a tuna purse seine vessel is categorized Federal Register. Publications in the purse seine vessel from the Vessel as active for a given calendar year, but Federal Register would summarize the Register prior to transfer, but only if the less than 20 percent of the vessel’s total new fishery management USCG or the U.S. Maritime landings, by weight, in that same year recommendations and resolutions and Administration (MARAD) notifies is comprised of tuna harvested by purse respond to public comments received. NMFS that the vessel owner has seine in the Convention Area. The ETP Tuna Purse Seine Vessel and current regulation does not address submitted an application for transfer. Operator Permit Applications and Fees cases in which a vessel did not fish for Under an existing Memorandum of tuna in the Convention Area at all (i.e., Understanding (MOU), MARAD already 50 CFR 216.24(b)(4)(i) to (b)(4)(v) and zero landings). This rule would add to provides notification to NMFS for all 50 CFR 216.24(b)(5)(i) to (b)(5)(v) list all 50 CFR 300.22(b)(4)(ii) to allow a large purse seine vessels requiring of the information collected on the ETP request for active status to be considered MARAD approval prior to transfer. vessel and operator permit applications. frivolous if a purse seine vessel was However, NMFS does not have a similar This proposed rule would remove these categorized as active but did not fish for agreement with the USCG regarding paragraphs and add a general statement tuna in the Convention Area at all in notification at this time. To ensure that an ETP vessel or operator permit that same year, to ensure all cases NMFS is notified prior to transfers, this application obtained from NMFS must constituting a frivolous request are rule would add new paragraph 50 CFR be completed and submitted to request covered. 300.22(b)(8) requiring owners of tuna an ETP vessel or operator permit. 50 CFR 300.22(b)(5) would be revised purse seine vessels listed on the Vessel Changes to information collected from to add to criteria under which the Register to submit written notification to the public in permit applications would Administrator, Southwest Region, may the Administrator, Southwest Region, still require appropriate rulemaking in remove vessels from the Vessel Register. prior to submitting an application to the Federal Register and approval by First, criteria would be added to allow transfer a vessel to foreign registry and the OMB under the PRA. 50 CFR removal of a vessel if the vessel’s state flag. Written notification would include 216.24(b)(6)(ii) would also be revised to registration or documentation with the the vessel name and registration allow NMFS to collect an operator U.S. Coast Guard (USCG) is not valid. number; the estimated submission date permit application fee to cover the Vessels must have valid state of the application to transfer the vessel administrative costs associated with registration or USCG documentation in to foreign registry and flag; and the processing and issuing operator permits. order to fish in navigable waters of the vessel owner or managing owner’s name Under 50 CFR 216.24(b)(6)(iii), U.S. or in the U.S. exclusive economic and signature. Receipt of the written payment of the vessel assessment fee is zone. Vessels without valid state notification would be required at least required for tuna purse seine vessels: (1) registration or vessel documentation are 10 business days prior to submitting the Listed as active on the Vessel Register no longer authorized by the United application for transfer, to ensure NMFS and that are required to carry an States to fish for tuna or tuna-like has sufficient time to remove the vessel observer; (2) listed as inactive on the species in the Convention Area and from the Vessel Register prior to the Vessel Register and that exceed 400 st must be removed from the Vessel transfer. This rule would also add a (362.8 mt) carrying capacity; (3) Register. Second, criteria would be prohibition at 50 CFR 300.24(j) making licensed under the South Pacific Tuna added to allow removal of a tuna purse it illegal for vessel owners to fail to Treaty (SPTT) that exercise their option seine vessel from the Vessel Register if provide this written notification to the to make a single trip into the ETP per the owner’s request for active status has Administrator, Southwest Region, at calendar year; (4) not listed on the been determined to be frivolous. least 10 business days prior to Vessel Register at the beginning of the Removal of these vessels may be submitting the application for transfer. calendar year and for which active necessary to make room for other U.S. The written notification requirement status is requested to replace a vessel purse seine vessels desiring to actively would not apply to owners of vessels removed from active status during the fish for tuna in the Convention Area. that must obtain approval by MARAD year; and (5) listed as inactive at the Finally, criteria would be added to prior to transfer because MARAD beginning of the calendar year and for

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which active status is requested to conducted by IATTC representatives or shipments containing fish or fish replace a vessel removed from active NMFS staff. products ‘‘harvested by’’ vessels of a status during the year. The regulations nation known to use large-scale driftnets Fisheries Certificates of Origin and establish deadlines for payment of the (a ‘‘large-scale driftnet nation’’), to Associated Certifications fee, except in the case of SPTT vessels certify the fish or fish products were not and replacement vessels not listed at the To import tuna, tuna products, and harvested using large-scale driftnets. In beginning of the calendar year or in the certain other fish products into the contrast, 50 CFR 216.24(f)(6)(ii) requires previous year. 50 CFR United States, Fisheries Certificates of a responsible government official of the 216.24(b)(6)(iii)(F) states that all Origin (FCOs) and associated large-scale driftnet nation to sign and payments made after the specified dates certifications must be filed with both date the High Seas Driftnet Certification are subject to a 10-percent surcharge; U.S. Customs and Border Protection for any shipments containing fish or fish however, only those payments subject to (CBP; Department of Homeland products ‘‘exported from or harvested and made after the deadline are subject Security) and NMFS Southwest Region. on the high seas by’’ the large-scale to a 10-percent surcharge. 50 CFR Current regulations at 50 CFR driftnet nation. To address these 216.24(b)(6)(iii)(F) would be revised to 216.24(f)(3)(ii) require FCOs and differences, 50 CFR 216.24(f)(4)(xiii) state that the following classes of vessels associated certifications to be submitted would be revised to be consistent with for which payments were made after the to NMFS within 30 days of the the language in 50 CFR 216.24(f)(6)(ii). specified dates would not be subject to shipment’s entry into the commerce of In addition, the instructions on the FCO a 10-percent surcharge: (1) vessels the United States. However, allowing 30 require a responsible government licensed under the SPTT making a days to submit the required official of the harvesting nation to sign single trip into the ETP; and (2) vessels certifications may hinder enforcement, and date the High Seas Driftnet not listed at the beginning of the because the products will likely be Certification for any shipments calendar year or in the previous year, offered for sale or purchased or containing fish or fish products and for which active status was consumed before violations of the ‘‘exported from or harvested by’’ a large- requested to replace a vessel removed regulations governing certification are scale driftnet nation. In an action from active status during the year. A 10- determined. This rule would revise 50 outside of this rulemaking under the percent surcharge would apply to the CFR 216.24(f)(3)(ii) to require that FCOs PRA, the FCO instructions would be following classes of vessels for which and associated certifications be revised to require a responsible payments were made late: (1) vessels submitted to NMFS within 10 calendar government official of the large-scale listed as active or inactive at the days of the shipment’s entry into the driftnet nation to sign and date the High beginning of the calendar year; and (2) commerce of the United States, to aid in Seas Driftnet Certification consistent vessels not listed at the beginning of the enforcement of the regulations. Section with 50 CFR 216.24(f)(6)(ii). calendar year, but listed in the previous 50 CFR 216.24(f)(3) continues to require Dolphin-Safe Certifications and Tuna year, and for which active status was that FCOs covering tuna processed in Tracking Forms requested to replace a vessel removed the United States be submitted only from active status during the year. after endorsement by the final processor 50 CFR 216.24(f)(3) states that or exporter. documents (e.g., FCOs, certifications, Tuna Purse Seine Vessels With Dolphin FCOs and associated certifications written statements, etc.) covering tuna Mortality Limits may be submitted to NMFS using a or tuna products to be imported into the Dolphin Mortality Limits (DMLs) are secure file transfer protocol (FTP) site or United States or labeled as ‘‘dolphin- defined as ‘‘the maximum allowable via mail either on compact disc or as safe’’ are to be filed with CBP at the time number of incidental dolphin hard copies. The current regulations of import and then ‘‘accompany’’ the mortalities per calendar year assigned to allow electronic submissions to be in tuna or tuna products by being a vessel’’ (50 CFR 216.3). Tuna purse PDF or as an image file embedded in a submitted to the Tuna Tracking and seine vessels with DMLs are subject to Microsoft Word, Microsoft PowerPoint, Verification Program, Southwest Region. additional requirements, including gear or Corel WordPerfect file. However, This proposed rule would add a specifications and annual inspections. because NMFS may not be able to view reference to 50 CFR 216.24(f)(3) In 2004, the IDCP adopted resolutions to image files embedded in certain wherever the term ‘‘accompany’’ is used amend gear and inspection versions of Word, PowerPoint, or in 50 CFR sections 216.91, 216.92, and requirements for vessels with DMLs. To WordPerfect, and because PDF is 216.93, to clarify what is meant by the implement these requirements, this universal and readily available, 50 CFR term ‘‘accompany.’’ In addition, as is proposed rule would revise the 216.24(f)(3) would be revised to require currently required, the documents must regulations to comply with the all electronic submissions to NMFS of be endorsed at each change in resolutions adopted by the IDCP in FCOs and associated certifications to be ownership, submitted by the last 2004. Floodlight specifications at 50 in PDF. endorser to the Administrator, CFR 216.24(c)(3)(viii) would be revised In 50 CFR 216.24(f)(2), the list of Southwest Region, retained in records to require vessels with DMLs to be Harmonized Tariff Schedule of the by importers and exporters for 2 years, equipped with long-range, high- United States (HTS) numbers and and made available within 30 days of a intensity floodlights with a sodium or descriptions of products would be request by the Secretary of Commerce or multivapour lamp, to provide sufficient updated based on the most recent HTS. the Administrator, Southwest Region. light to observe dolphin release 50 CFR 216.24(f)(4)(xiii) and 50 CFR Tuna tracking forms (TTFs) are procedures and to monitor incidental 216.24(f)(6)(ii) both describe the completed by observers on ETP tuna dolphin mortality. 50 CFR circumstances under which the High purse seine vessels greater than 400 st 216.24(c)(4)(i) would also be revised to Seas Driftnet Certification contained on (362.8 mt) carrying capacity, to record increase the frequency of vessel the FCO must be completed and by every set made during a trip. The inspections from once to twice per year, whom. 50 CFR 216.24(f)(4)(xiii) requires handling of TTFs and the tracking and to monitor compliance with gear and a responsible government official of the verification of dolphin-safe and non- equipment requirements associated with harvesting nation to sign and date the dolphin-safe tuna caught in the DMLs. Vessel inspections would be High Seas Driftnet Certification for any Convention Area are regulated by the

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international tuna tracking and 100 employees would be considered effect. First, payment of the vessel verification program adopted by the small entities. assessment fee is the only mechanism Parties to the AIDCP. This proposed rule U.S. tuna purse seine vessels fishing under the current regulations for vessel would revise 50 CFR 216.93(c)(5), in the Convention Area are divided into owners to request active or inactive which describes certain parts of the two size groups: (1) Vessels greater than status for a small tuna purse seine IDCP tuna tracking and verification 400 st (362.8 mt) carrying capacity vessel. This rule would: (1) update the program, by removing paragraphs (‘‘large’’ vessels); and (2) vessels of 400 regulations to be consistent with (c)(5)(i) through (c)(5)(v) and adding a st (362.8 mt) carrying capacity or less resolutions under the AIDCP and general statement that the handling of (‘‘small’’ vessels). Large vessels typically require owners of small tuna purse seine TTFs and the tracking and verification exceed $4 million in annual receipts, vessels to pay the vessel assessment fee of tuna caught by a U.S. tuna purse whereas small vessels have less than $4 only if active status is requested for the seine vessel in the Convention Area will million in annual receipts and would be vessel and the vessel is required to carry be conducted consistent with the considered small entities. Large vessels an observer; and (2) require an annual international tuna tracking and must be categorized as active on the written notification to request active or verification program adopted by the Vessel Register in order to fish for tuna inactive status for a small tuna purse Parties to the AIDCP. This revision in the Convention Area. Small vessels seine vessel. Submission of written would help avoid confusion and clarify are not required to be listed on the notification would: (1) ensure collection that the procedures for handling TTFs Vessel Register unless landings of tuna of the required information for the and for tracking and verifying tuna caught in the Convention Area comprise Vessel Register; and (2) provide a caught in the Convention Area are not more than 50 percent of the vessel’s method to request active or inactive regulated by NMFS. total landings, by weight, for a given status, particularly for vessel owners no calendar year. From 2004 to 2006, the Public Comments Solicited longer required to pay the vessel active U.S. tuna purse seine fleet assessment fee. Written notification to NMFS is soliciting public comments operating in the ETP averaged less than request active status would require on this proposed rule. Written 5 large vessels and from 1–2 small submission by fax to NMFS of the vessel comments may be submitted to Susan vessels per year. In 2007, the active U.S. owner or managing owner’s signature Wang (see ADDRESSES and DATES). fleet consisted of three large vessels and and business telephone and fax Classification one small vessel, and the inactive list numbers, as well as the required Vessel consisted of one small vessel. Ten or Executive Order 12866 Register information as described in the fewer small purse seine vessels fish preamble. Written notification to This proposed rule has been most of the year for coastal pelagic request inactive status would require determined to be not significant for species, but opportunistically fish for submission by mail to NMFS of the purposes of Executive Order 12866. tuna in the ETP when tuna are vessel name and registration number NMFS prepared a Regulatory Impact seasonably available. and the owner or managing owner’s Review on the proposed regulations, About 2,100 U.S. commercial fishing name, signature, and business contact available at: http://www.regulations.gov. vessels and CPFVs are authorized to fish information. The time needed to gather for tuna and tuna-like species in the Regulatory Flexibility Act and submit this information would be Convention Area per year, including: (1) minimal (about 35 minutes for a request The Chief Counsel for Regulation of vessels under Pacific HMS vessel for active status and 5 minutes for a the Department of Commerce certified permits (about 1,988 vessels); and (2) request for inactive status). Vessel to the Chief Counsel for Advocacy of the vessels based in Hawaii and the U.S. owners already provide much of this Small Business Administration (SBA) Pacific Islands, under HSFCA permits information to NMFS on a voluntary that this proposed rule, if adopted, (about 164 vessels). All of these vessels basis. Additional costs for a request for would not have a significant economic would be considered small entities with impact on a substantial number of small active status would consist of $0.30 for less than $4 million in annual receipts. a photograph and $3.00 for faxing. entities. The basis for this certification Vessel operators are in charge of and Additional costs for a request for is presented in the following control fishing operations on U.S. purse inactive status would consist of $0.10 paragraphs. seine vessels fishing for tuna and tuna- for a copy of the written notification, like species in the Convention Area and Description of Affected Entities and $0.10 for an envelope, and $0.42 for must possess a valid ETP operator Small Entities postage. permit. About 25 vessel operators apply The proposed regulations would for the ETP operator permit each year Vessel Register information would apply to four classes of entities: (1) and all would be considered small also be collected for vessels authorized Owners of U.S. tuna purse seine vessels entities with an annual income of less to fish for tuna and tuna-like species in fishing in the Convention Area; (2) than $4 million. the Convention Area under an ETP tuna owners of U.S. commercial fishing There are an estimated 475 distinct purse seine vessel permit, a Pacific HMS vessels and CPFVs authorized to fish for U.S. importers of tuna, tuna products, vessel permit, or an HSFCA permit. This tuna and tuna-like species in the and certain other fish products per year. proposed rule would revise the ETP Convention Area; (3) vessel operators Of these, about 350 importers would be vessel permit application to collect a applying for ETP tuna purse seine considered small businesses with less vessel photograph. However, owners of operator permits; and (4) importers of than 100 employees. small purse seine vessels would not be tuna, tuna products, and certain other affected, because they are not required fish products. We used the SBA’s size Impacts on Owners of Small Tuna Purse to obtain an ETP vessel permit. standards established at 13 CFR 121.201 Seine Vessels, Commercial Fishing Revisions to the Pacific HMS vessel to define small entities. Fishing vessels Vessels, and CPFVs permit application and HSFCA permit with less than $4 million in average The proposed rule would apply application to collect the required annual receipts, vessel operators with additional requirements to tuna purse additional information would affect an average annual income of less than seine vessels in the ETP, none of which vessels under these permits. However, $4 million, and importers with less than would result in a significant economic these revisions are planned as actions

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separate from this proposed rule and are Second, additional criteria would be possessing DMLs. Owners of small not considered in this analysis. added to allow removal of a tuna purse purse seine vessels are not allowed to Current regulations state that a seine vessel from the Vessel Register if obtain DMLs. request for active status will be the owner of the vessel has made a Impacts on Vessel Operators considered frivolous if a purse seine frivolous request for active status. vessel was listed as active but less than Removal of the vessel may be necessary The proposed rule would add an ETP 20 percent of the vessel’s total landings, to make room on the Vessel Register for operator permit application fee of $35 to by weight, in that same year was other U.S. purse seine vessels. Small $40 to cover administrative costs for comprised of tuna harvested by purse vessels would experience little to no processing and issuing ETP operator seine in the Convention Area. This economic impacts. Although the vessel permits. An application processing fee proposed rule would add additional would no longer be listed on the Vessel of $35 to $40 would not be a significant criteria to allow a request for active Register, current regulations allow a proportion of the annual income of an status to be considered frivolous if a small vessel to continue fishing for tuna ETP vessel operator, who earns purse seine vessel was listed as active as long as landings of tuna caught in the approximately $40,000 to more than but did not fish for tuna at all in the Convention Area comprise 50 percent or $100,000 per fishing trip. Convention Area in that same year. The less of the vessel’s total landings in that Impacts on Importers additional criteria would reinforce the calendar year. All small vessels current regulations and would not result removed from the Vessel Register due to The requirement that electronic in additional costs. a frivolous request would still be submissions of FCOs and associated The proposed rule would require allowed to fish for tuna in the certifications be in PDF would affect owners of tuna purse seine vessels listed Convention Area, given the definition of importers of tuna, tuna products, and on the Vessel Register to submit written a frivolous request. Vessels removed certain other fish products requiring notification to NMFS at least 10 from the Vessel Register due to a FCOs. Limiting the acceptable file business days prior to submitting an frivolous request may be added back to format types to PDF would ensure that application to transfer the vessel to the Vessel Register if the owner submits files are readable. This action would not foreign registry and flag. Written a request for active or inactive status; significantly affect the ability of notification would include the vessel however, the request would be importers to submit FCOs and name and registration number, the considered last among all requests for associated certifications. Importers vessel owner or managing owner’s name that year. would continue to have the option of and signature, and the expected date of Third, additional criteria would be submitting FCOs and associated submission of the application. Vessels added to allow removal of a tuna purse certifications by mail. Submission by requiring approval by MARAD prior to seine vessel from the Vessel Register mail is the method currently used by transfer would not be subject to the upon receipt of written notification from almost all of the 475 importers and this written notification requirement, the owner or managing owner of the would not be expected to change. Since because MARAD already provides such intent to transfer the vessel to foreign the start of this program, only two out notification to NMFS under an MOU. registry and flag. The additional criteria of the 475 importers per year have used No such agreement exists with the would reinforce current regulations, the electronic option to submit their USCG at this time. This written which allow NMFS to remove a vessel forms to NMFS, and both already notification would ensure NMFS is from the Vessel Register prior to submit the forms in PDF. No additional notified prior to transfer of the vessel to transfer, but only if MARAD or the costs would be expected to result from foreign registry and flag. The time USCG notifies NMFS that the owner has this requirement. needed to prepare and submit this submitted an application for transfer. Importers would also be affected by written notification would be minimal Removal of a tuna purse seine vessel the requirement that FCOs and (about 5 minutes). Additional costs from the Vessel Register prior to transfer associated certifications be submitted to would include $0.10 for a copy of the is necessary to protect the U.S. tuna NMFS within 10 calendar days of the written notification, $0.10 for an purse seine fleet’s capacity limit. A U.S. shipment’s entry into the commerce of envelope, and $0.42 for postage. tuna purse seine vessel listed as active the United States, rather than within 30 Regulations at 50 CFR part 300 on the Vessel Register holds a certain days (except when the tuna will be provide criteria under which a vessel portion of the U.S. fleet’s capacity limit processed in the United States, in which may be removed from the Vessel of 8,969 mt. The capacity held by the case the form must be submitted after Register. The proposed regulations vessel could be transferred with the endorsement by the final processor or would add additional criteria to aid in vessel upon transfer to foreign registry exporter). Reducing the time period managing and updating the U.S. portion and flag. Removing the vessel from the within which the forms must be of the Vessel Register. First, additional Vessel Register prior to transfer would submitted to NMFS would aid in criteria would be added to allow prevent reductions in the U.S. fleet’s enforcement. NMFS would be able to removal of a vessel from the Vessel capacity limit, because the vessel would detect and respond to problems with the Register if the vessel lacks valid state no longer hold a portion of the U.S. FCOs or certifications before the registration or documentation with the fleet’s capacity. However, the vessel’s products are placed in stores for sale, or USCG. Vessels lacking valid state market value would likely decrease. purchased and consumed. Most registration or USCG documentation are Although this may result in a importers would have no additional not authorized to fish in navigable potentially significant economic impact, costs, because they already submit their waters of the United States or in the this impact would be attributed to the forms within 10 days of the shipment’s U.S. exclusive economic zone, and current regulations that already allow entry into U.S. commerce. About 20 of therefore are not authorized by the removal of vessels from the Vessel the 350 importers that would be United States to fish for tuna and tuna- Register prior to transfer. considered small businesses currently like species in the Convention Area. Owners of small purse seine vessels submit their forms monthly and would Removal of such vessels is necessary to would not be subject to revised need to submit the FCOs and associated update and maintain the Vessel Register floodlight and vessel inspection certifications more frequently (e.g., 2–3 and would not result in additional costs. requirements for purse seine vessels times per month rather than monthly).

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Aside from the extra time required, managing owner’s name and signature. that collection of information displays a added out-of-pocket expenses would be Public reporting burdens per individual currently valid OMB control number. small (i.e., $0.10 for each additional response for the new and revised Endangered Species Act envelope and $0.42 for postage for each collection-of-information requirements additional mailing). are estimated to average 35 minutes for NMFS prepared a Biological Opinion Summary the ETP tuna purse seine vessel permit for an interim final rule (65 FR 30, application; 35 minutes for the written January 3, 2000) to implement the IDCP The proposed rule would affect small notification to request active status; 5 in December 1999, and in July 2004 entities, but would not have a minutes for the written notification to issued an amended Incidental Take significant economic effect on any of request inactive status; and 5 minutes Statement after taking into account the these small entities. In some cases, the for the written notification of the intent revisions made in the final rule (69 FR new or revised requirements would to transfer a vessel to foreign registry 55288, September 13, 2004). In the 1999 apply to a substantial number of small and flag. These reporting burden Biological Opinion, NMFS concluded entities, but would not result in estimates include the time for reviewing that fishing activities conducted under significant economic effects. In instructions, searching existing data the interim final rule are not likely to addition, the proposed rule would not sources, gathering and maintaining the jeopardize the continued existence of create a disproportionate effect on small data needed, and completing and any endangered or threatened species entities or significantly reduce profit for reviewing the collection information. under the jurisdiction of NMFS or result small entities. Therefore, an initial This proposed rule also contains a in the destruction or adverse regulatory flexibility analysis is not non-substantive change subject to modification of critical habitat. This required and none has been prepared. review and approval by OMB under the proposed rule would not result in any Paperwork Reduction Act PRA for collections under control effects beyond those considered in the This proposed rule contains new and number 0648–0335. A non-substantive 1999 Biological Opinion and 2004 revised collection-of-information change request has been submitted to Incidental Take Statement. OMB for approval to require that the requirements subject to review and National Environmental Policy Act approval by OMB under the PRA for CBP importer of record submit a copy of collections under control number 0648– the FCO and associated certifications to NMFS prepared an Environmental 0387. The following collection-of- NMFS within 10 days of a shipment’s Assessment (EA) for a final rule (70 FR information requirements have been entry into U.S. commerce, rather than 19004, April 12, 2005) to implement submitted to OMB for approval: (1) within 30 days (except when the tuna resolutions adopted by the IATTC and Collection of a vessel photograph as part will be processed in the United States, the IDCP. The Assistant Administrator of the ETP tuna purse seine vessel in which case the forms must be for Fisheries concluded that fishing permit application; (2) annual written submitted to NMFS after endorsement activities conducted under the final rule notification to request a tuna purse by the final processor or exporter). The would not be expected to result in seine vessel of 400 st (362.8 mt) carrying public reporting burden for the revised significant effects on the human capacity or less be categorized as active collection of information requirement environment. This proposed rule would on the Vessel Register, including the would remain the same (estimated to not be expected to result in owner or managing owner’s signature average 20 minutes per individual modifications to fisheries operations or and business telephone and fax response), including the time for effects on the human environment numbers and the required Vessel reviewing instructions, searching beyond those considered under the Register information (i.e., the vessel existing data sources, gathering and alternatives in the EA. This action has name, registration number, and previous maintaining the data needed, and been categorically excluded from the name(s) and flag(s); a vessel photograph completing and reviewing the collection requirement to prepare an with the vessel registration number information. environmental assessment or legible; the name and business address Public comment is sought regarding: environmental impact statement. A of the owner(s) and managing owner(s); whether this proposed collection of memo to the record has been prepared port of registry; International Radio Call information is necessary for the proper memorializing this decision that is Sign; where and when built; length, performance of the functions of the available at the Federal E-rulemaking beam, and moulded depth; gross agency, including whether the Web site: http://www.regulations.gov. tonnage, fish hold capacity, and information shall have practical utility; carrying capacity; engine horsepower; the accuracy of the burden estimate; Marine Mammal Protection Act and type of fishing method(s)); (3) ways to enhance the quality, utility, and Incidental take of dolphins and other annual written notification to request clarity of the information to be marine mammals may occur during that a tuna purse seine vessel of 400 st collected; and ways to minimize the fishing operations by U.S. tuna purse (362.8 mt) carrying capacity or less be burden of the collection of information, seine vessels in the ETP. The take of categorized as inactive on the Vessel including through the use of automated dolphins incidental to the operation of Register, including the vessel name, collection techniques or other forms of the U.S. ETP tuna purse seine fishery is registration number, and vessel owner information technology. Send comments authorized and managed under the or managing owner’s name, signature, on these or any other aspects of the IDCP. This proposed rule would not business address, and business collection of information to Susan affect the administration of that telephone and fax numbers; and (4) Wang, NMFS, and to David Rostker, program, which is implemented under written notification prior to submitting OMB (see ADDRESSES above). the MMPA. an application to transfer a purse seine Notwithstanding any other provision vessel listed on the Vessel Register to of the law, no person is required to List of Subjects foreign registry and flag, including the respond to, and no person shall be 50 CFR Part 216 vessel name and registration number, subject to penalty for failure to comply the estimated submission date of the with, a collection of information subject Fish, Marine mammals, Reporting and application, and the vessel owner or to the requirements of the PRA, unless recordkeeping requirements.

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50 CFR Part 300 revise paragraphs (a)(3), (b)(4), (b)(5), Southwest Region, on the application International fisheries regulations, (b)(6)(ii), (b)(6)(iii), (c)(3)(viii), (c)(4)(i), form. Pacific tuna fisheries. (f)(2), (f)(3), (f)(4), (f)(10), and (f)(11), to (iii) Vessel assessment fee. The vessel read as follows:. assessment fee supports the placement Dated: July 7, 2008. of observers on individual tuna purse Samuel D. Rauch III, § 216.24 Taking and related acts incidental seine vessels, and maintenance of the Deputy Assistant Administrator, for to commercial fishing operations by tuna observer program, as established by the Regulatory Programs, National Marine purse seine vessels in the eastern tropical Pacific Ocean. IATTC or other approved observer Fisheries Service. program. For the reasons set out in the (a) * * * (A) The owner or managing owner of preamble, NMFS proposes to amend 50 (3) Upon written request made in a purse seine vessel for which a DML CFR parts 216 and 300 as follows: advance of entering the ETP, the has been requested must submit the limitations in paragraphs (a)(2)(ii) and vessel assessment fee, as established by PART 216—REGULATIONS (e)(1) of this section may be waived by the IATTC or other approved observer GOVERNING THE TAKING AND the Administrator, Southwest Region, program, to the Administrator, IMPORTING OF MARINE MAMMALS for the purpose of allowing transit Southwest Region, no later than 1. The authority citation for part 216 through the ETP. The waiver will September 15 of the year prior to the continues to read as follows: provide, in writing, the terms and calendar year for which the DML is conditions under which the vessel must requested. Payment of the vessel Authority: 16 U.S.C. 1361 et seq., unless operate, including a requirement to assessment fee must be consistent with otherwise noted. report to the Administrator, Southwest the fee for active status on the Vessel 2. In § 216.3, add definitions for Region, the vessel’s date of exit from or Register under § 300.22(b)(4) of this ‘‘Albacore tuna’’, ‘‘Bigeye tuna’’, subsequent entry into the permit area. title. ‘‘Bluefin tuna’’, ‘‘Longtail tuna’’, (b) * * * (B) The owner or managing owner of ‘‘Skipjack tuna’’, ‘‘Southern bluefin (4) Application for vessel permit. ETP a purse seine vessel for which active or tuna’’, ‘‘Tuna’’, and ‘‘Yellowfin tuna’’ in tuna purse seine vessel permit inactive status on the Vessel Register, as alphabetical order and revise the application forms and instructions for defined in § 300.21 of this title, has been definition for ‘‘Tuna product’’ to read as their completion are available from requested, but for which a DML has not follows: NMFS. To apply for an ETP vessel been requested, must submit payment of the vessel assessment fee, as established § 216.3 Definitions. permit, a vessel owner or managing owner must complete, sign, and submit by the IATTC or other approved * * * * * the appropriate form via fax to (562) observer program, to the Administrator, Albacore tuna means the species 980–4047, for prioritization purposes as Southwest Region, no later than Thunnus alalunga. described under § 300.22(b)(4)(i)(D)(3) November 30 of the year prior to the calendar year in which the vessel will * * * * * of this title, allowing at least 15 days for be listed on the Vessel Register. Bigeye tuna means the species processing. To request that a vessel in Payment of the vessel assessment fee is Thunnus obesus. excess of 400 st (362.8 mt) carrying required only if the vessel is listed as Bluefin tuna means the species capacity be categorized as active on the active and is required to carry an Thunnus thynnus. Vessel Register under § 300.22(b)(4)(i) of observer, or if the vessel is listed as * * * * * this title in the following calendar year, inactive and exceeds 400 st (362.8 mt) Longtail tuna means the species the owner or managing owner must in carrying capacity. Payment of the Thunnus tonngol. submit the vessel permit application via vessel assessment fee must be consistent * * * * * fax, payment of the vessel permit with the vessel’s status, either active or Skipjack tuna means the species application fee, and payment of the inactive, on the Vessel Register in Euthynnus (Katsuwonus) pelamis. vessel assessment fee no later than § 300.22(b)(4) of this title. * * * * * September 15 for vessels for which a (C) The owner or managing owner of Southern bluefin tuna means the DML is requested for the following year, a purse seine vessel that is licensed species Thunnus maccoyii. and no later than November 30 for under the South Pacific Tuna Treaty * * * * * vessels for which a DML is not must submit the vessel assessment fee, Tuna means any fish of the genus requested for the following year. as established by the IATTC or other Thunnus and the species Euthynnus (5) Application for operator permit. approved observer program, to the (Katsuwonus) pelamis. An applicant for an operator permit Administrator, Southwest Region, prior Tuna product means any food must complete, sign, and submit the to obtaining an observer and entering product processed for retail sale and appropriate form obtained from NMFS the ETP to fish. Consistent with intended for human consumption that and submit payment of the permit § 300.22(b)(1)(i) of this title, this class of contains an item listed in application fee to the Administrator, purse seine vessels is not required to be § 216.24(f)(2)(i) or (ii), but does not Southwest Region, allowing at least 45 listed on the Vessel Register under include perishable items with a shelf days for processing. Application forms § 300.22(b)(4) of this title in order to life of less than 3 days. and instructions for their completion are purse seine for tuna in the ETP during * * * * * available from NMFS. a single fishing trip per calendar year of Yellowfin tuna means the species (6) * * * 90 days or less. Payment of the vessel Thunnus albacares (synonomy: (ii) Operator permit fee. The Assistant assessment fee must be consistent with Neothunnus macropterus). Administrator may require a fee to be the fee for active status on the Vessel 3. In § 216.24, redesignate paragraph submitted with an application for an Register under § 300.22(b)(4) of this (f)(8)(i)(D)(3)(iii) as paragraph (f)(8)(ii) operator permit. The level of such a fee title. and redesignate paragraphs (f)(8)(iv), shall be determined in accordance with (D) The owner or managing owner of (f)(8)(v), and (f)(8)(vi) as paragraphs the NOAA Finance Handbook and a purse seine vessel listed as inactive on (f)(8)(iii), (f)(8)(iv), and (f)(8)(v); and specified by the Administrator, the Vessel Register at the beginning of

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the calendar year and who requests to available for inspection and for a trial with their contents not more than 6.8 replace a vessel removed from active set/net alignment by an authorized kg each status on the Vessel Register under NMFS inspector or IATTC staff as 1604.14.1099 Tunas and skipjack, in § 300.22(b)(4) of this title during the specified by the Administrator, oil, in airtight containers, NESOI year, must pay the vessel assessment fee Southwest Region, in order to obtain a 1604.14.2291 Other tunas and associated with active status, less the vessel permit. The first such inspection skipjack, no oil, in foil/flexible vessel assessment fee associated with shall be carried out before the vessel’s airtight containers, not over 6.8 kg, inactive status that was already paid, request for a DML is submitted to the 4.8% of U.S. consumption of canned before NMFS will request the IATTC IATTC. The second such inspection tuna during preceding year Secretariat change the status of the shall be carried out before notification 1604.14.2299 Tunas, NESOI and vessel from inactive to active. Payment of any reallocation of DMLs for vessels skipjack, not in oil, in other airtight of the vessel assessment fee is required with full-year DMLs or during the last containers not over 7 kg, 4.8% of U.S. only if the vessel is required to carry an quarter of the year for vessels with consumption of canned tuna during observer. second-semester DMLs. preceding year (E) The owner or managing owner of * * * * * 1604.14.3091 Tunas and skipjack, a purse seine vessel not listed on the (f) * * * NESOI, not in oil, in foil or other Vessel Register at the beginning of the (2) Imports requiring a Fisheries flexible airtight containers, weighing calendar year and who requests to Certificate of Origin. Shipments of tuna, with their contents not more than 6.8 replace a vessel removed from active tuna products, and certain other fish kg each status on the Vessel Register under products identified in paragraphs 1604.14.3099 Other tunas and § 300.22(b)(4) of this title during the (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of this skipjack, not in oil, in airtight year, must pay the vessel assessment fee section may not be imported into the containers, NESOI associated with active status only if the United States unless a properly (C) Loins: (products containing vessel is required to carry an observer, completed Fisheries Certificate of Origin Yellowfin). before NMFS will request the IATTC (FCO), NOAA Form 370, is filed with 1604.14.4000 Tunas and skipjacks, Secretariat change the status of the U.S. Customs and Border Protection prepared or preserved, not in airtight vessel to active. (CBP) at the time of importation. containers, not in oil, in bulk or (F) Payments will be subject to a 10 (i) Imports requiring a Fisheries immediate containers with their percent surcharge if received under Certificate of Origin, subject to yellowfin contents over 6.8 kg each paragraph (b)(6)(iii)(D) of this section; tuna embargo. All shipments containing 1604.14.5000 Tunas and skipjack, under paragraph (b)(6)(iii)(E) of this yellowfin tuna or yellowfin tuna prepared or preserved, not in airtight section for vessels that were listed on products (other than fresh tuna) containers, NESOI the Vessel Register in the calendar year imported into the United States must be (D) Other: (products containing prior to the year for which active status accompanied by an FCO, including, but Yellowfin). was requested; or after the dates not limited to, those imported under the 1604.20.2500 Fish balls, cakes and specified in paragraphs (b)(6)(iii)(A) or following Harmonized Tariff Schedule (b)(6)(iii)(B) of this section. Payments puddings, not in oil, not in airtight of the United States (HTS) numbers. containers, in immediate containers will not be subject to a 10 percent Updated HTS numbers can be identified surcharge if received under paragraph weighing with their contents not over by referencing the most current HTS in 6.8 kg each (b)(6)(iii)(C) of this section, or if effect at the time of importation, received under paragraph (b)(6)(iii)(E) of 1604.20.3000 Fish balls, cakes and available at http://www.usitc.gov. The puddings, NESOI this section for vessels that were not scope of yellowfin tuna embargoes and (ii) Imports requiring a Fisheries listed on the Vessel Register in the procedures for attaining an affirmative Certificate of Origin, not subject to calendar year prior to the year for which finding are described under paragraphs yellowfin tuna embargo. All shipments active status was requested. The (f)(6) and (f)(8) of this section, containing tuna or tuna products (other Administrator, Southwest Region, will respectively. than fresh tuna or yellowfin tuna forward all vessel assessment fees (A) Frozen: (products containing identified in paragraph (f)(2)(i) of this described in this section to the IATTC Yellowfin). or to the applicable organization section) imported into the United States approved by the Administrator, 0303.42.0020 Yellowfin tunas, whole, must be accompanied by an FCO, Southwest Region. frozen including, but not limited to, those 0303.42.0040 Yellowfin tunas, head- imported under the following HTS * * * * * on, frozen, except whole (c) * * * numbers. Updated HTS numbers can be 0303.42.0060 Yellowfin tunas frozen, (3) * * * identified by referencing the most except whole, head-on, fillets, livers (viii) Lights. The vessel must be current HTS in effect at the time of and roes equipped with long-range, high- importation, available at http:// 0304.29.6097 Tuna fish fillets, frozen, intensity floodlights with a sodium www.usitc.gov. Not elsewhere specified or indicated lamp of at least 1000 watts, or a (A) Frozen: (other than Yellowfin). (NESOI) multivapour lamp of at least 1500 watts, 0303.41.0000 Albacore or longfinned 0304.99.1090 Tuna, frozen, in bulk or for use in darkness to ensure sufficient tunas, frozen, except fillets, livers and in immediate containers weighing light to observe that procedures for roes with their contents over 6.8 kg each, dolphin release are carried out and to 0303.43.0000 Skipjack tunas or stripe- NESOI monitor incidental dolphin mortality. bellied bonito, frozen, except fillets, (4) Vessel inspection—(i) Twice per (B) Airtight Containers: (products livers and roes year. At least twice during each containing Yellowfin). 0303.44.0000 Bigeye tunas, frozen, calendar year, purse seine nets and 1604.14.1010 Tunas and skipjack, in except fillets, livers and roes other gear and equipment required oil, in airtight containers, in foil or 0303.45.0000 Bluefin tunas, frozen, under § 216.24(c)(3) must be made other flexible containers weighing except fillets, livers and roes

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0303.46.0000 Southern bluefin tunas, containers, in immediate containers each, to be minced, ground or cut into frozen, except fillets, livers and roes weighing with their contents not over pieces of uniform weights and 0303.49.0100 Tunas, frozen, except 6.8 kg each dimensions, NESOI fillets, livers and roes, NESOI 1604.20.3000 Fish balls, cakes and 0304.29.6006 Atlantic Salmonidae 0304.29.6097 Tuna fish fillets, frozen, puddings, NESOI (Salmo salar) fillets, frozen, NESOI NESOI (iii) Exports from driftnet nations 0304.29.6008 Salmonidae fillets, 0304.99.1090 Tuna, frozen, in bulk or only, requiring a Fisheries Certificate of frozen, except Atlantic salmon, in immediate containers weighing Origin and official certification. The NESOI 0304.29.6099 Fish fillets, frozen, with their contents over 6.8 kg each, following HTS numbers identify NESOI NESOI categories of fish and shellfish, in 0307.49.0010 Squid fillets, frozen (B) Airtight Containers: (other than addition to those identified in (B) Canned: Yellowfin). paragraphs (f)(2)(i) and (f)(2)(ii) of this 1604.14.1010 Tunas and skipjack, in section, known to have been harvested 1604.11.2020 Pink (humpie) salmon, oil, in airtight containers, in foil or using a large-scale driftnet and imported whole or in pieces, but not minced, in other flexible containers weighing into the United States. Shipments oil, in airtight containers with their contents not more than 6.8 exported from a large-scale driftnet 1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced, in kg each nation, as identified under paragraph oil, in airtight containers 1604.14.1091 Tunas, albacore, in oil, (f)(7) of this section, and imported into 1604.11.2090 Salmon NESOI, whole or in airtight containers, NESOI the United States, including but not 1604.14.1099 Tunas and skipjack, in in pieces, but not minced, in oil, in limited to those imported into the airtight containers oil, in airtight containers, NESOI United States under any of the HTS 1604.14.2251 Albacore tuna, not in oil, 1604.11.4010 Chum (dog) salmon, not numbers listed in paragraph (f)(2) of this in oil, canned in foil/flexible airtight containers, section, must be accompanied by an 1604.11.4020 Pink (humpie) salmon, weighing not over 6.8 kg, 4.8% of U.S. FCO and the official statement not in oil, canned consumption of canned tuna during described in paragraph (f)(4)(xiii) of this 1604.11.4030 Sockeye (red) salmon, preceding year section. not in oil, canned 1604.14.2259 Albacore tuna, not in oil, (A) Frozen: 1604.11.4040 Salmon, NESOI, not in in airtight containers weighing not 0303.19.0012 Chinook (King) salmon oil, canned over 7 kg, NESOI, 4.8% of U.S. (Oncorhynchus tschawytscha), frozen, 1604.11.4050 Salmon, whole or in consumption of canned tuna during except fillets, livers and roes pieces, but not minced, NESOI preceding year 0303.19.0022 Chum (dog) salmon 1604.19.2000 Fish, NESOI, not in oil, 1604.14.2291 Other tunas and (Oncorhynchus keta), frozen, except in airtight containers skipjack, no oil, in foil/flexible fillets, livers and roes 1604.19.3000 Fish, NESOI, in oil, in airtight containers, not over 6.8 kg, 0303.19.0032 Pink (humpie) salmon airtight containers 4.8% of U.S. consumption of canned (Oncorhynchus gorbuscha), frozen, 1605.90.6050 Loligo squid, prepared tuna during preceding year except fillets, livers and roes or preserved 1604.14.2299 Tunas, NESOI and 0303.19.0052 Coho (silver) salmon 1605.90.6055 Squid except Loligo, skipjack, not in oil, in other airtight (Oncorhynchus kisutch), frozen, prepared or preserved containers, not over 7 kg, 4.8% of U.S. except fillets, livers and roes (C) Other: consumption of canned tuna during 0303.19.0062 Pacific salmon 0305.30.6080 Fish fillets, dried, salted preceding year (Oncorhynchus masou, or in brine, but not smoked, NESOI 1604.14.3051 Tuna, albacore not in oil, Oncorhynchus rhodurus), frozen, 0305.41.000 Pacific salmon in foil or other flexible airtight except fillets, livers and roes, NESOI (Oncorhynchus spp.), Atlantic salmon containers, weighing with contents 0303.21.0000 Trout (Salmo trutta; (Salmo salar), and Danube salmon not more than 6.8 kg each, NESOI Oncorhynchus mykiss, clarki, (Hucho hucho), including fillets, 1604.14.3059 Tuna, albacore not in oil, aguabonita, gilae, apache, and smoked in airtight containers, NESOI chrysogaster), frozen, except fillets, 0305.49.4040 Fish including fillets, 1604.14.3091 Tunas and skipjack, livers and roes smoked, NESOI NESOI, not in oil, in foil or other 0303.22.0000 Atlantic salmon (Salmo 0305.59.2000 Shark fins, dried, flexible airtight containers, weighing salar) and Danube salmon (Hucho whether or not salted but not smoked with their contents not more than 6.8 0305.59.4000 Fish, dried, whether or hucho), frozen, except fillets, livers kg each not salted but not smoked, NESOI and roes 1604.14.3099 Other tunas and 0305.69.4000 Salmon, salted but not 0303.29.0000 Salmonidae, frozen, skipjack, not in oil, in airtight dried or smoked; in brine except fillets, livers and roes, NESOI containers, NESOI 0305.69.5000 Fish in immediate 0303.61.0010 Swordfish steaks, frozen, (C) Loins: (other than Yellowfin). containers weighing with their except fillets contents 6.8 kg or less each, salted but 1604.14.4000 Tunas and skipjacks, 0303.61.0090 Swordfish, frozen, prepared or preserved, not in airtight not dried or smoked; in brine, NESOI except steaks, fillets, livers and roes 0305.69.6000 Fish, salted but not dried containers, not in oil, in bulk or 0303.75.0010 Dogfish (Squalus spp.), or smoked; in brine, NESOI immediate containers with their frozen, except fillets, livers and roes 0307.49.0022 Squid, Loligo contents over 6.8 kg each 0303.75.0090 Sharks, frozen, except opalescens, frozen (except fillets), 1604.14.5000 Tunas and skipjack, dogfish, fillets, livers and roes dried, salted or in brine prepared or preserved, not in airtight 0303.79.0079 Fish, frozen, except 0307.49.0024 Squid, Loligo pealei, containers, NESOI fillets, livers and roes, NESOI frozen (except fillets), dried, salted or (D) Other: (only if the product 0304.21.0000 Swordfish fillets, frozen, in brine contains tuna). NESOI 0307.49.0029 Loligo squid, frozen 1604.20.2500 Fish balls, cakes and 0304.29.2066 Fish fillets, skinned, (except fillets), dried, salted or in puddings, not in oil, not in airtight frozen blocks weighing over 4.5 kg brine, NESOI

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0307.49.0050 Squid, frozen (except (iv) Importers and exporters are this section, the Port Director of CBP fillets), dried, salted or in brine, required to retain their records, shall refuse to release the fish for entry except Loligo squid including FCOs, import or export into the United States. 0307.49.0060 Cuttle fish (Sepia documents, invoices, and bills of lading (11) Disposition of fish refused entry officinalis, Rossia macrosoma, for 2 years, and such records must be into the United States. Fish that is Sepiola spp.), frozen, dried, salted or made available within 30 days of a denied entry under paragraph (f)(2) of in brine request by the Secretary or the this section and that is not exported (3) Disposition of Fisheries Administrator, Southwest Region. under CBP supervision within 90 days Certificates of Origin. The FCO (4) Contents of Fisheries Certificate of shall be disposed of under CBP laws described in paragraph (f)(4) of this Origin. An FCO, certified to be accurate and regulations at the importer’s section may be obtained from the by the exporter(s) of the accompanying expense. Provided, however, that any Administrator, Southwest Region, or shipment, must include the following disposition shall not result in an downloaded from the Internet at information: introduction into the United States of http://swr.nmfs.noaa.gov/noaa370.htm. (i) CBP entry identification; fish caught in violation of the MMPA. (i) A properly completed FCO and its (ii) Date of entry; * * * * * (iii) Exporter’s full name and attached certificates as described in 4. In § 216.91, revise paragraphs § 216.91(a), if applicable, must complete address; (iv) Importer’s or consignee’s full (a)(2)(i), (a)(2)(ii), and (a)(4) to read as accompany the required CBP entry follows: documents that are filed at the time of name and complete address; import. (v) Species description, product form, § 216.91 Dolphin-safe labeling (ii) FCOs and associated certifications and HTS number; standards. as described in § 216.91(a), if any, that (vi) Total net weight of the shipment (a) * * * accompany imported shipments of tuna in kilograms; (2) * * * (vii) Ocean area where the fish were must be submitted by the importer of (i) In a fishery in which the Assistant harvested (ETP, western Pacific Ocean, record to the Tuna Tracking and Administrator has determined that a south Pacific Ocean, eastern Atlantic Verification Program, Southwest Region, regular and significant association Ocean, western Atlantic Ocean, within 10 calendar days of the occurs between dolphins and tuna Caribbean Sea, Indian Ocean, or other); shipment’s entry into the commerce of (similar to the association between the United States. FCOs submitted via (viii) Type of fishing gear used to harvest the fish (purse seine, longline, dolphins and tuna in the ETP), unless mail should be sent to the Tuna such products are accompanied as Tracking and Verification Program, baitboat, large-scale driftnet, gillnet, pole and line/hook and line, or other); described in § 216.24(f)(3) by a written Southwest Region, P.O. Box 32469, statement, executed by the Captain of Long Beach, CA 90832–2469. Copies of (ix) Country under whose laws the harvesting vessel operated based upon the vessel and an observer participating the documents may be submitted in a national or international program electronically using a secure file transfer the flag of the vessel or, if a certified charter vessel, the country that accepted acceptable to the Assistant protocol (FTP) site. Importers of record Administrator, certifying that no purse interested in submitting FCOs and responsibility for the vessel’s fishing operations; seine net was intentionally deployed on associated certifications via FTP may or used to encircle dolphins during the contact a representative of the Tuna (x) Dates on which the fishing trip began and ended; particular trip on which the tuna were Tracking and Verification Program at caught and no dolphins were killed or the following e-mail address: (xi) The name of the harvesting vessel; seriously injured in the sets in which [email protected]. The Tuna (xii) Dolphin-safe condition of the the tuna were caught; or Tracking and Verification Program will shipment, described by checking the (ii) In any other fishery unless the facilitate secure transfer and protection appropriate statement on the form and products are accompanied as described of certifications by assigning a separate attaching additional certifications as in § 216.24(f)(3) by a written statement electronic folder for each importer. described in § 216.91(a) if required; executed by the Captain of the vessel Access to the electronic folder will (xiii) For shipments containing fish or certifying that no purse seine net was require a user identification and fish products exported from, or intentionally deployed on or used to password. The Tuna Tracking and harvested on the high seas by vessels of Verification Program will assign each a nation known to use large-scale encircle dolphins during the particular importer a unique user identification driftnets, as determined by the Secretary trip on which the tuna was harvested; and password. Safeguarding the pursuant to paragraph (f)(7) of this * * * * * confidentiality of the user identification section, the High Seas Driftnet (4) Other fisheries. By a vessel in a and password is the responsibility of the Certification contained on the FCO must fishery other than one described in importer to whom they are assigned. be dated and signed by a responsible paragraphs (a)(1) through (a)(3) of this Copies of the documents may also be government official of the large-scale section that is identified by the submitted via mail either on compact driftnet nation, certifying that the fish or Assistant Administrator as having a disc or as hard copies. All electronic fish products were harvested by a regular and significant mortality or submissions, whether via FTP or on method other than large-scale driftnet; serious injury of dolphins, unless such compact disc, must be in Portable and product is accompanied as described in Document Format (PDF). (xiv) Each importer, exporter, or § 216.24(f)(3) by a written statement, (iii) FCOs that accompany imported processor who takes custody of the executed by the Captain of the vessel shipments of tuna destined for further shipment must sign and date the form and an observer participating in a processing in the United States must be to certify that the form and attached national or international program endorsed at each change in ownership documentation accurately describes the acceptable to the Assistant and submitted to the Administrator, shipment of fish that they accompany. Administrator, that no dolphins were Southwest Region, by the last endorser * * * * * killed or seriously injured in the sets or when all required endorsements are (10) Fish refused entry. If fish is other gear deployments in which the completed. denied entry under paragraph (f)(2) of tuna were caught, provided that the

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Assistant Administrator determines that certifications for those tuna or tuna The record and bridge log maintained such an observer statement is necessary. products. and submitted at the request of the * * * * * * * * * * IATTC shall be sufficient to comply 5. In § 216.92, revise paragraph with this paragraph, provided the items (b)(2)(ii) and the introductory text of PART 300—INTERNATIONAL of information specified by the IATTC paragraph (b)(2)(iii) to read as follows: FISHERIES REGULATIONS are accurately entered in the log. For purse seine vessels of 400 st (362.8 mt) § 216.92 Dolphin-safe requirements for Subpart C—Pacific Tuna Fisheries carrying capacity or less and for non- tuna harvested in the ETP by large purse purse seine vessels, maintaining and seine vessels. 7. The authority citation for part 300, subpart C, continues to read as follows: submitting any logbook required by * * * * * existing state or federal regulation shall (b) * * * Authority: 16 U.S.C. 951–961 et seq. be sufficient to comply with this (2) * * * 8. In § 300.21, remove the definition paragraph. (ii) The tuna or tuna products are for ‘‘Vessel Register’’ and add (b) Vessel Register. The Vessel accompanied as described in definitions for ‘‘Commercial passenger Register shall include, consistent with § 216.24(f)(3) by a properly completed fishing vessel’’, ‘‘Regional Vessel resolutions of the IATTC, all FCO; and Register’’, and ‘‘Tuna’’ in alphabetical commercial fishing vessels and CPFVs (iii) The tuna or tuna products are order to read as follows: authorized to fish for tuna and tuna-like species in the Convention Area. Except accompanied as described in § 300.21 Definitions. § 216.24(f)(3) by valid documentation as provided under paragraph (b)(1) of * * * * * signed by a representative of the this section, tuna purse seine vessels Commercial passenger fishing vessel appropriate IDCP member nation, must be listed on the Vessel Register means any vessel licensed for containing the harvesting vessel names and categorized as active under commercial passenger fishing purposes and tuna tracking form numbers paragraph (b)(4)(i) of this section in within the State out of which it is represented in the shipment, and order to fish for tuna and tuna-like operating and from which, while under certifying that: species in the Convention Area. charter or hire, persons are legally * * * * * * * * * * permitted to conduct sportfishing (2) Requirements for inclusion of 6. In § 216.93, revise paragraphs (c)(5), activities. purse seine vessels on the vessel (e), and (f)(2) to read as follows: * * * * * register. The tuna purse seine portion of § 216.93 Tracking and verification Regional Vessel Register (hereafter the Vessel Register shall include, program. referred to as Vessel Register) means the consistent with resolutions of the * * * * * regional register of vessels authorized to IATTC, only vessels that fished in the (c) * * * fish for tuna and tuna-like species in the Convention Area prior to June 28, 2002. Convention Area, as established by the Inclusion on the tuna purse seine (5) The handling of TTFs and the Inter-American Tropical Tuna portion of the Vessel Register is valid tracking and verification of tuna caught Commission in June 2000. through December 31 of each year. New in the Convention Area by a U.S. purse tuna purse seine vessels may be added seine vessel greater than 400 st (362.8 * * * * * to the Vessel Register at any time to mt) carrying capacity shall be conducted Tuna means any fish of the genus replace those previously removed by the consistent with the international tuna Thunnus and the species Euthynnus Regional Administrator, provided that tracking and verification program (Katsuwonus) pelamis. the total capacity of the replacement adopted by the Parties to the Agreement * * * * * vessel or vessels does not exceed that of on the IDCP. 9. In § 300.22, revise the section the tuna purse seine vessel or vessels * * * * * heading and paragraphs (a), (b) introductory text, and (b)(2), (b)(3), being replaced. (e) Tracking imports. All tuna (b)(4), (b)(5)(iv), and (b)(7); and add new (3) Vessel information. Information on products, except fresh tuna, that are paragraphs (b)(5)(vi), (b)(5)(vii), each commercial fishing vessel or CPFV imported into the United States must be (b)(5)(viii), and (b)(8) to read as follows: authorized to use purse seine, longline, accompanied as described in drift gillnet, harpoon, troll, rod and reel, § 216.24(f)(3) by a properly certified § 300.22 Eastern Pacific fisheries— or pole and line fishing gear to fish for FCO as required by § 216.24(f)(2). For recordkeeping and written reports. tuna and tuna-like species in the tuna tracking purposes, copies of FCOs (a) The master or other person in Convention Area for sale shall be and associated certifications must be charge of a commercial fishing vessel or collected by the Regional Administrator, submitted by the importer of record to commercial passenger fishing vessel Southwest Region, to conform to IATTC the Administrator, Southwest Region, (CPFV) authorized to fish for tuna and resolutions governing the Vessel within 10 calendar days of the tuna-like species in the Convention Register. This information initially shipment’s entry into the commerce of Area, or a person authorized in writing includes, but is not limited to, the vessel the United States as required by to serve as the agent for either person, name and registration number; the name § 216.24(f)(3)(ii). must keep an accurate log of operations and business address of the owner(s) (f) * * * conducted from the fishing vessel. For and managing owner(s); a photograph of (2) Record submission. Within 10 vessels greater than 400 st (362.8 mt) the vessel with the registration number calendar days of receiving a shipment of carrying capacity that are authorized to legible; previous vessel name(s) and tuna or tuna products, any exporter, purse seine for tuna in the Convention previous flag (if known and if any); port transshipper, importer, processor, or Area, the log must include for each day of registry; International Radio Call wholesaler/distributor of tuna or tuna the date, noon position (stated in Sign; vessel length, beam, and moulded products must submit to the latitude and longitude or in relation to depth; gross tonnage, fish hold capacity Administrator, Southwest Region, all known physical features), and the in cubic meters, and carrying capacity corresponding FCOs and required tonnage of fish on board, by species. in metric tons; engine horsepower; date

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and place where built; and type of assessment fee and permit application (B) The vessel did not fish for tuna at fishing method or methods used. The fee will be interpreted by the Regional all in the Convention Area in that same required information shall be collected Administrator as a request for a vessel year. as part of existing information to be categorized as active. The (iii) Inactive status. From August 1 collections as described in this and following restrictions apply to active through November 30 of each year, other parts of the CFR. status: vessel owners or managing owners may (4) Purse seine vessel register status. (A) The cumulative carrying capacity request that purse seine vessels For a purse seine vessel to be listed on of all purse seine vessels categorized as qualified to be listed on the Vessel the Vessel Register, and to be active on the Vessel Register may not Register under paragraph (b)(2) of this categorized as either ‘‘active’’ or exceed 8,969 mt in a given year; section be categorized as inactive for the ‘‘inactive,’’ in the following calendar (B) A purse seine vessel may not be following calendar year. To request a year, the vessel owner or managing added to active status on the Vessel purse seine vessel in excess of 400 st owner must submit to the Regional Register unless the captain of the vessel (362.8 mt) carrying capacity be listed on Administrator, Southwest Region, the has obtained a valid operator permit the Vessel Register and categorized as required permit applications, written under § 216.24(b)(2) of this title; inactive for the following calendar year, notifications, and fees as described (C) For 2005 only, requests for vessels the vessel owner or managing owner under § 216.24(b) of this title and under will be prioritized on a first-come, first- must submit to the Regional paragraphs (b)(4)(i) and (b)(4)(iii) of this served basis according to the date and Administrator, Southwest Region, section. time the fax is received in the office of payment of the associated vessel (i) Active status. As early as August 1 the Regional Administrator; assessment fee. Payment of the vessel of each year, vessel owners or managing (D) Requests for active status for 2006 assessment fee consistent with inactive owners may request that a purse seine and subsequent years will be prioritized status will be interpreted by the vessel qualified to be listed on the according to the following hierarchy: Regional Administrator as a request for Vessel Register under paragraph (b)(2) of (1) Requests received for vessels that the vessel to be categorized as inactive. this section be categorized as active for were categorized as active in the To request a purse seine vessel of 400 the following calendar year. To request previous year, beginning with the st (362.8 mt) carrying capacity or less be a purse seine vessel in excess of 400 st vessel’s status in 2005, unless the listed on the Vessel Register and (362.8 mt) carrying capacity be listed on request for active status was determined categorized as inactive for the following the Vessel Register and be categorized as calendar year, the vessel owner or to be frivolous by the Regional active, the vessel owner or managing managing owner must submit by mail to Administrator under paragraph (b)(4)(ii) owner must submit to the Regional the Regional Administrator, Southwest of this section; Administrator, Southwest Region, the Region, a written notification including, (2) Requests received for vessels that vessel permit application and payment but not limited to, the vessel name and were categorized as inactive under of the permit application fee and vessel registration number and the vessel paragraph (b)(4)(iii) of this section in the assessment fee. To request a purse seine owner or managing owner’s name, previous year, beginning with the vessel of 400 st (362.8 mt) carrying signature, business address, and capacity or less be listed on the Vessel vessel’s status in 2005; business telephone and fax numbers. Register and be categorized as active, (3) Requests for vessels not described Payment of the vessel assessment fee is the vessel owner or managing owner in paragraphs (b)(4)(i)(D)(1) or (2) of this not required for vessels of 400 st (362.8 must submit to the Regional section will be prioritized on a first- mt) carrying capacity or less to be Administrator, Southwest Region, come, first-served basis according to the categorized as inactive. At any time written notification including, but not date and time stamp printed by the during the year, a vessel owner or limited to, a vessel photograph, the incoming fax machine upon receipt, managing owner may request that a vessel information as described under provided that the associated vessel purse seine vessel qualified to be listed paragraph (b)(3) of this section, and the assessment fee is paid by the applicable on the Vessel Register under paragraph owner or managing owner’s signature deadline described in § 216.24(b)(6)(iii) (b)(2) of this section be categorized as and business telephone and fax of this title; and inactive for the remainder of the numbers. If a purse seine vessel of 400 (4) Requests received from owners or calendar year. To request a purse seine st (362.8 mt) carrying capacity or less is managing owners of vessels that were vessel in excess of 400 st (362.8 mt) required by the Agreement on the IDCP determined, by the Regional carrying capacity be listed on the Vessel to carry an observer, the vessel owner or Administrator, to have made a frivolous Register and categorized as inactive for managing owner must also submit request for active status under the remainder of the calendar year, the payment of the vessel assessment fee to paragraph (b)(4)(ii) of this section. vessel owner or managing owner must the Regional Administrator, Southwest (ii) Frivolous requests for active submit to the Regional Administrator Region. Vessel permit applications and status. Beginning with requests made payment of the associated vessel written notifications must be submitted for 2005, a request for active status assessment fee, plus a 10 percent by fax to (562) 980–4047. The Regional under paragraph (b)(4)(i) of this section surcharge of the fee if the vessel was Administrator must receive the vessel will be considered frivolous, unless as listed on the Vessel Register in the permit application or written a result of force majeure or other previous year. To request a purse seine notification and payment of the permit extraordinary circumstances as vessel of 400 st (362.8 mt) carrying application fee and vessel assessment determined by the Regional capacity or less be listed on the Vessel fee no later than September 15 for Administrator, if, for a vessel Register and categorized as inactive for vessels for which a DML was requested categorized as active in a given calendar the remainder of the calendar year, the for the following year and no later than year, vessel owner or managing owner must November 30 for vessels for which a (A) Less than 20 percent of the submit to the Regional Administrator DML was not requested for the vessel’s total landings, by weight, in that written notification as described in this following year. Submission of the vessel same year is comprised of tuna paragraph (payment of the vessel permit application or written harvested by purse seine in the assessment fee is not required). notification and payment of the vessel Convention Area; or (5) * * *

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(iv) For failure to pay a penalty or for owners of vessels eligible for, but not by mail and received by the Regional default on a penalty payment agreement included on, the Vessel Register that Administrator at least 10 business days resulting from a final agency action for replacement capacity is available on the prior to submission of the application a violation; active list of the Vessel Register. for transfer. The written notification * * * * * (iv) Vessel owners or managing must include the vessel name and (vi) If the vessel does not have a valid owners may request a purse seine vessel registration number; the expected date state registration or U.S. Coast Guard of 400 st (362.8 mt) carrying capacity or that the application for transfer will be certificate of documentation; less be categorized as active to replace submitted; and the vessel owner or (vii) For tuna purse seine vessels, a vessel removed from the Vessel managing owner’s name and signature. upon receipt of written notification from Register by submitting to the Regional Vessels that require approval by the U.S. the owner or managing owner of the Administrator, Southwest Region, Maritime Administration prior to intent to transfer the vessel to foreign written notification as described in transfer of the vessel to foreign registry registry and flag, as described in paragraph (b)(4)(i) of this section and, and flag will not be subject to the paragraph (b)(8) of this section; or only if the vessel is required by the notification requirement described in (viii) For tuna purse seine vessels, if Agreement on the IDCP to carry an this paragraph. the request for active status on the observer, payment of the vessel 10. In § 300.23, revise the section Vessel Register has been determined to assessment fee within 10 business days heading to read as follows: be a frivolous request. after submission of the faxed written notification. The replacement vessel § 300.23 Eastern Pacific fisheries— * * * * * will be eligible to be categorized as Persons and vessels exempted. (7) Procedures for replacing purse active on the Vessel Register if it has a seine vessels removed from the Vessel * * * * * carrying capacity equal to or less than 11. In § 300.24, remove the Register. the vessel being replaced. Payments (i) A purse seine vessel in excess of semicolons at the end of paragraphs (b), received will be subject to a 10 percent (e), (f), and (g) and replace them with 400 st (362.8 mt) carrying capacity that surcharge for vessels that were listed on was previously listed on the Vessel periods; remove ‘‘; or’’ at the end of the Vessel Register at the beginning of paragraph (h) and replace it with a Register, but not included for a given the calendar year, or in the calendar year or years, may be added back to the period; and add a new paragraph (j) to year prior to the year, for which active read as follows: Vessel Register and categorized as status was requested. inactive at any time during the year, (v) Vessel owners or managing owners § 300.24 Prohibitions. provided the owner or managing owner may request a purse seine vessel in * * * * * of the vessel pays the vessel assessment excess of 400 st (362.8 mt) carrying (j) Fail to provide written notification fee associated with inactive status. capacity be categorized as active to Payments received will be subject to a as described under § 300.22(b)(8) to the replace a vessel removed from the Regional Administrator, Southwest 10 percent surcharge for vessels that Vessel Register by submitting to the were listed on the Vessel Register in the Region, at least 10 business days prior Regional Administrator, Southwest to submission of an application to calendar year prior to the year for which Region, the vessel permit application as inactive status was requested. A purse transfer a purse seine vessel listed on described under § 216.24(b) of this title the Vessel Register to foreign registry seine vessel of 400 st (362.8 mt) carrying and payment of the vessel assessment capacity or less that was previously and flag, unless transfer of the vessel fee and permit application fee within 10 requires approval by the U.S. Maritime listed on the Vessel Register, but not business days after submission of the Administration. included for a given year or years, may faxed vessel permit application for the be added back to the Vessel Register and replacement vessel. The replacement 12. In § 300.25, revise paragraph (a), categorized as inactive at any time vessel will be eligible to be categorized the heading for paragraph (e) and revise during the year, provided the owner or as active on the Vessel Register if it has paragraph (e)(1) to read as follows: managing owner of the vessel submits a carrying capacity equal to or less than § 300.25 Eastern Pacific fisheries written notification as described in the vessel being replaced, and the management. paragraph (b)(4)(iii) of this section. captain of the replacement vessel (a) Notification of IATTC (ii) A purse seine vessel may be added possesses an operator permit under recommendations and resolutions. to the Vessel Register and categorized as § 216.24(b) of this title. Payments Fishery management resolutions made active in order to replace a vessel received will be subject to a 10 percent by the IATTC and approved by the removed from active status under surcharge for vessels that were listed on Department of State will be promulgated paragraph (b)(5) of this section, the Vessel Register at the beginning of in the Federal Register via appropriate provided the total carrying capacity of the calendar year, or in the calendar rulemaking. The publication in the the active vessels does not exceed 8,969 year prior to the year, for which active Federal Register will summarize the mt and the owner submits a complete status was requested. request under paragraph (b)(7)(iv) or (vi) The Regional Administrator, fishery management resolutions and (b)(7)(v) of this section. Southwest Region, will forward requests respond to any public comments (iii) After a purse seine vessel to replace vessels removed from the received by NMFS. categorized as active is removed from Vessel Register within 15 days of * * * * * the Vessel Register, the Regional receiving each request. (e) Bycatch reduction measures—(1) Administrator, Southwest Region, will (8) The owner or managing owner of All purse seine vessels must retain on notify owners or managing owners of a purse seine vessel listed on the Vessel board and land all bigeye, skipjack, and vessels categorized as inactive that Register must provide written yellowfin tuna brought on board the replacement capacity is available on the notification to the Regional vessel after a set, except fish deemed active list of the Vessel Register. In the Administrator, Southwest Region, prior unfit for human consumption for other event that owners of inactive vessels do to submitting an application for transfer than reason of size. This requirement not request to replace a removed vessel, of the vessel to foreign registry and flag. shall not apply to the last set of a trip the Regional Administrator will notify Written notification must be submitted if the available well capacity is

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insufficient to accommodate the entire • Mail: D. Robert Lohn, targeting any of the 90+ species fish catch brought on board. Administrator, Northwest Region, managed under the FMP. The proposed * * * * * NMFS, Attn: Becky Renko, 7600 Sand action to implement Amendment 15 to Point Way NE, Seattle, WA 98115–0070. the FMP would require vessels that [FR Doc. E8–15803 Filed 7–10–08; 8:45 am] Written comments regarding the wish to harvest and/or process Pacific BILLING CODE 3510–22–P burden-hour estimates or other aspects whiting in the non-tribal Pacific whiting of the collection-of-information fishery to qualify for a Pacific whiting requirements contained in this proposed vessel license limitation program. This DEPARTMENT OF COMMERCE rule may be submitted to the Northwest is in addition to the requirement for National Oceanic and Atmospheric Region (see ADDRESSES) and by e-mail to harvesting vessels to be registered for Administration [email protected], or fax to use with groundfish limited entry (202) 395–7285. Send comments on permits. Amendment 15 is intended to 50 CFR Part 660 collection-of-information requirements serve as an interim measure that sunsets to the NMFS address above and to the when the Pacific Fishery Management [Docket No. 071003556–7575–01] Office of Information and Regulatory Council adopts and the National Marine Affairs (OIRA), Office of Management Fisheries Service implements a trawl RIN 0648–AW08 and Budget (OMB), Washington DC rationalization program under Fisheries Off West Coast States; 20503 (Attn: NOAA Desk Officer). Amendment 20 to the Pacific Pacific Coast Groundfish Fishery; Instructions: All comments received Groundfish FMP. Amendment 20 is Amendment 15 are a part of the public record and will currently under development by the generally be posted to http:// Council, which adopted its preliminary AGENCY: National Marine Fisheries www.regulations.gov without change. preferred alternative at the June Council Service (NMFS), National Oceanic and All Personal Identifying Information (for meeting. The Council anticipates taking Atmospheric Administration (NOAA), example, name, address, etc.) final action on the trawl rationalization Commerce. voluntarily submitted by the commenter program in November 2008. If NMFS ACTION: Proposed rule; request for may be publicly accessible. Do not approves the Amendment, comments. submit Confidential Business implementation is scheduled for late Information or otherwise sensitive or 2010, at which time Amendment 15 SUMMARY: NMFS issues this proposed protected information. would no longer be effective. If rule to implement Amendment 15 to the NMFS will accept anonymous development and implementation of Pacific Coast Groundfish Fishery comments. Attachments to electronic Amendment 20 is delayed beyond that Management Plan (FMP). Amendment comments will be accepted in Microsoft point, NMFS intends to request that the 15 would modify the FMP to implement Word, Excel, WordPerfect, or Adobe Council reconsider the provisions of a limited entry program for the non- PDF file formats only. Amendment 15. NMFS published a Notice of tribal Pacific whiting fishery. FOR FURTHER INFORMATION CONTACT: Availability for Amendment 15 on Amendment 15 was approved by NMFS Becky Renko, phone: 206–526–6110, on June 18, 2008, and in accordance March 19, 2008 (73 FR 14765), and is fax: 206–526–6736, or e-mail: requested public comment on it through with the notification procedures of the [email protected], or for permitting Magnuson-Stevens Fishery May 19, 2008. Amendment 15 was information, Kevin Ford, phone: 206– approved by NMFS on June 18, 2008. Conservation and Management Act, the 526–6115, fax: 206–526–6736, or e-mail: Pacific Fishery Management Council [email protected]. Background was notified of this approval. SUPPLEMENTARY INFORMATION: Pacific whiting (Merluccius Amendment 15 is intended to serve as productus), also known as Pacific hake, an interim measure to limit potential Electronic Access is a semi-pelagic and relatively participation in the Pacific whiting This proposed rule is accessible via productive species that ranges from fishery within the U.S. West Coast the Internet at the Office of the Federal Sanak Island in the western Gulf of Exclusive Economic Zone until Register’s Web site at http:// Alaska to Magdalena Bay, Baja implementation of a trawl www.access.gpo.gov/suldocs/aces/ California Sur, Mexico. They are most rationalization program under aces140.html. Background information abundant in the California Current Amendment 20 to the Groundfish FMP. and documents are available at the System, off the U.S. West Coast. Pacific DATES: Comments on this proposed rule NMFS Northwest Region Web site at whiting landings represent the most must be received on or before August http://www.nwr.noaa.gov/Groundfish- significant single-species contribution to 11, 2008. Halibut/Groundfish-Fishery- West Coast groundfish landings from ADDRESSES: Amendment 15 is available Management/index.cfm. the 90+ groundfish species managed on the Pacific Fishery Management NMFS is proposing this rule to under the FMP by several orders of Council’s (Council’s or Pacific implement Amendment 15 to the FMP, magnitude. In general, Pacific whiting is Council’s) website at: http:// which would create a limited entry a very productive species with highly www.pcouncil.org/groundfish/ program for the three non-tribal sectors variable recruitment (the biomass of fish gffmp.html. of the Pacific whiting fishery off the that mature and enter the fishery each You may submit comments, identified U.S. West Coast. Under current Federal year) and a relatively short life span by RIN 0648–AW08 by any of the regulations, Pacific whiting shoreside when compared to other groundfish following methods: fishery catcher vessels, mothership species. In 1987, the Pacific whiting • Electronic Submissions: Submit all catcher vessels, and catcher/processor biomass was at a historically high level electronic public comments via the vessels, must be registered to a due to an exceptionally large number of FederaleRulemaking Portal: http:// groundfish limited entry permit. The fish that had spawned in 1980 and 1984 www.regulations.gov. limited entry program has been in place (fished spawned during a particular year • Fax: 206–526–6736, Attn: Becky since 1994 and allows appropriately are referred to as year classes). As these Renko. registered vessels to harvest groundfish, large year classes of fish passed through

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the population and were replaced by these three sectors is provided for duration of the restrictions. Upon moderate sized year classes, the stock within Federal regulations at 50 CFR reviewing the draft 2001 EA, the declined. The Pacific whiting stock 660.323(a)(2): 34 percent for the catcher/ Council determined that there was no stabilized between 1995 and 1997, but processor sector; 24 percent for the imminent harm to West Coast then declined to its lowest level in 2001. mothership sector; and 42 percent for groundfish fisheries from the AFA. This After 2001, the Pacific whiting biomass the shore-based sector. In addition to determination, in combination with increased substantially as a strong 1999 these between-sector allocations, no competing workload led the Council to year class matured and entered the more than 5 percent of the shore-based table action on Amendment 15 in 2001. spawning population. The contribution allocation may be taken and retained Amendment 15 in the 2007 Council of the 1999 year class to the total south of 42° N. lat. before the June 15 Process population is rapidly declining as it start of the shore-based sector primary matures. Pacific whiting season north of 42° N. In 2005 and 2006, market conditions Coastwide Pacific whiting harvest is lat. for Pacific whiting changed managed via a 2003 U.S.-Canada dramatically, with prices paid to agreement on Pacific whiting The American Fisheries Act (AFA) and fishermen increasing from an average conservation, research, and catch Amendment 15 price of about $0.04 per pound ($88 per sharing. Under that agreement, U.S. The 1998 AFA was designed to ton) in the 1992–2005 period to more fisheries have access to 73.88 percent of strengthen U.S. ownership standards than $ 0.06 per pound ($143 per ton) in the total annual Pacific whiting that had been exploited under the Anti- 2006. Preliminary information for optimum yield (OY), with Canadian reflagging Act, and to rationalize the Oregon shore-based landings of Pacific fisheries having access to 26.12 percent Bering Sea and Aleutian Islands (BSAI) whiting indicates an increase from $0.07 of the OY. walleye pollock (pollock) fishery while in 2006 to $0.08 in 2007, doubling the Pacific whiting harvest within U.S. protecting non-AFA participants in historic average price. The rise in ex- waters is first allocated between tribal other fisheries. The AFA prioritized vessel prices was stimulated by and non-tribal fisheries. In 1994, the U.S. interests in the harvest of U.S. increased world demand for whiting United States formally recognized that fishery resources and decapitalized the products, in particular new markets for the four Washington coastal treaty BSAI pollock fishery through buyouts. headed and gutted whiting. Higher Indian tribes (Makah, Quileute, Hoh, Management measures required by the Pacific whiting prices attracted new and Quinault) have treaty rights to fish AFA include (1) regulations that limit entrants to the Pacific whiting fishery for groundfish in the Pacific Ocean. In access into the fishing and processing from vessels with Pacific coast limited general terms, the quantification of sectors of the BSAI pollock fishery and entry groundfish permits that had those rights is 50 percent of the that allocate pollock to such sectors, (2) historically participated in the non- harvestable surplus of groundfish that regulations governing the formation and whiting groundfish fisheries, that had pass through the tribes’ usual and operation of fishery cooperatives in the purchased West Coast limited entry accustomed ocean fishing areas BSAI pollock fishery, (3) regulations to permits for the purpose of joining the (described at 50 CFR 660.324). To date, protect other fisheries from spillover Pacific whiting fishery, or that had only the Makah Tribe has participated effects from AFA, and (4) regulations historic Pacific whiting catch in one in a tribal fishery for Pacific whiting. governing catch measurement and sector but were newly entering other Beginning in 1999, NMFS set the tribal monitoring in the BSAI pollock fishery. sectors. Historic fishery participants allocation according to an abundance- Section 211 of the AFA requires the were concerned that new fishery based sliding scale method, proposed by Pacific Council, not later than July 1, entrants would ultimately accelerate the the Makah Tribe in 1998 (see 64 FR 2000, to recommend conservation and race for fish in the fishery, making the 27928 (May 29, 1999); 65 FR 221, management measures it determines fishery more dangerous for participants (January 4, 2000); 66 FR 2338 (January necessary to protect fisheries under its and more prone to poor decision- 11, 2001).) On December 28, 2004, the jurisdiction and the participants in making in fishing and which could Ninth Circuit Court of Appeals upheld those fisheries from adverse impacts ultimately result in higher rates of the sliding scale approach in Midwater caused by the AFA, or by any fishery bycatch of protected or overfished Trawler Cooperative v. Daley, 393 F. 3d cooperatives in the directed pollock species associated with Pacific whiting. 994 (9th Cir. 2004). Under the sliding fishery. In response to this requirement, Some of the new entrants to the Pacific scale allocation method, the tribal the Council initiated discussions on whiting fishery were AFA-qualified allocation varies with the U.S. Pacific Amendment 15 to the FMP in vessels with fishing operations off whiting OY, ranging from 14 percent (or September 1999. At that time, the initial Alaska. Therefore, in 2006, fishing less) of the U.S. OY when OY levels are intent of Amendment 15 was to restrict industry members requested that the above 250,000 mt, to 17.5 percent of the AFA-qualified vessels that had not met Council re-open consideration of U.S. OY when the OY level is at or historic Pacific whiting landing Amendment 15 to the FMP. below 145,000 mt. requirements during the 1994–1999 In September 2006, the Council again Since 1997, the non-tribal Pacific period from future participation in the took up Amendment 15 and, realizing whiting fishery has been divided into Pacific Coast groundfish fishery. that an FMP amendment could not be three separate sectors: the shore-based In September 2001, the Council completed in time to affect the 2007 sector, which is composed of vessels reviewed a range of alternatives and Pacific whiting fishery, discussed how that harvest whiting for delivery to land- initial analysis for Amendment 15. The to limit Pacific whiting fishery based processors; the mothership sector, draft environmental assessment (EA) participation in 2007. To address short- which is composed of catcher vessels identified four key issues: qualifying term participation in the Pacific whiting that harvest whiting and mothership criteria for AFA catcher vessels; fishery, the Council requested that vessels that process; and, the catcher/ whether AFA catcher vessel restrictions NMFS implement an emergency rule for processor sector, which is composed of would be on vessels, permits held by the 2007 fishery that would prohibit vessels that harvest and process vessels, or both; qualifying criteria for participation in a non-tribal sector by whiting. Domestic allocation of the AFA catcher processors; qualifying AFA-qualified vessels that had no annual U.S. Pacific whiting OY between criteria for AFA motherships; and historic participation in that sector prior

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to 2006. NMFS denied this request Endangered Species Act, increased costs groundfish limited entry program itself, primarily because it would not have to manage the fishery if it becomes the sablefish endorsement program, and restricted participation in the 2007 faster paced due to increased the three-tier sablefish program. fishery by non-AFA vessels; therefore, participation, and the decreased Under the proposed regulations, the requested rule would not solve the economic returns to historical NMFS would mail Pacific whiting serious conservation or management harvesters from new entrants. vessel license applications to all current problems in the fishery the Council had Ultimately, the Council chose a hybrid and prior owners of vessels that have identified. Current harm to the fishery alternative that combined historic been registered for use with limited could not be traced back solely to the qualification preferences expressed by entry permits with trawl endorsements, AFA itself, which meant that an participants in the three different non- excluding owners of those vessels emergency rule designed to exclude tribal sectors, based on the evolution of whose permits were purchased through only AFA-qualified vessels could not be the different sectors. the Pacific Coast groundfish fishing approved. The Council’s preferred alternative for capacity reduction program. NMFS The Council re-visited its emergency Amendment 15, which this rule would also make license applications rule request at its March 2007 meeting, proposes to implement, would restrict available online at: http:// and ultimately recommended that participation in the non-tribal sectors as www.nwr.noaa.gov/Groundfish-Halibut/ NMFS implement an emergency rule. follows: catcher vessels in the Pacific Groundfish-Permits/index.cfm. After concluding that conditions were whiting shoreside fishery would be To participate in the fishery in 2009 such that new entry into the non-tribal required to have made sector-specific and beyond, a vessel owner who sectors was likely in 2007, the Council Pacific whiting landings in any one believes that his/her vessel may qualify recommended an emergency rule to calendar year during the period of for the Pacific whiting vessel license prohibit participation in a particular January 1, 1994, through January 1, would have until December 31, 2008, to non-tribal sector by a vessel without a 2007; vessels participating in either the submit documentation showing how history of sector-specific participation catcher/processor or mothership sector his/her vessel has met the qualifying between January 1, 1997 and January 1, would be required to have either caught criteria. NMFS will not accept 2007. NMFS implemented this request and processed Pacific whiting (catcher/ applications for Pacific whiting vessel on May 14, 2007 (72 FR 27759, May 17, processor sector,) caught and delivered licenses received after December 31, 2007) stating concern that an Pacific whiting (catcher vessels in 2008. After receipt of a complete accelerated ‘‘race for fish’’ was likely to mothership sector,) or processed Pacific application, NMFS will notify cause serious conservation and whiting (motherships) in any one applicants by letter of its determination management problems. The emergency calendar year during the period of whether their vessels qualify for Pacific rule was intended to be interim until January 1, 1997 through January 1, 2007. whiting vessel licenses and the sector or longer term regulations could be This would be the first participation sectors to which the licenses apply. implemented. requirement for motherships, which, Vessels that have met the qualification Continuing its work for 2008 and unlike catcher vessels, have not needed criteria will be issued the appropriate beyond, the Council again addressed a groundfish limited entry permit licenses at that time. Amendment 15 at its April, June, and registered to them. The Council For 2008, the proposed action would September 2007 meetings. Based on preferred the 1994 qualifying period prohibit vessels from fishing, landing, or continued concern with conservation start date for the shore-based sector processing Pacific whiting in a primary effects of increased entry and the because that was the first year the whiting season from the effective date of resulting race for fish, the Council groundfish limited entry program was in this action through December 31, 2008, discussed action alternatives that would effect. For the at-sea sectors, however, with a catcher/processor, mothership or restrict participation in the sectors by 1997 was the preferred qualifying mothership catcher vessel that has no any vessel, not just AFA-qualified period start date because that was the history of participation within that vessels, that did not meet particular first year that Pacific whiting was specific sector of the whiting fishery landings requirements. The action specifically allocated between the three during the period from January 1, 1997, alternatives differed only in the sectors. Prior to 1997, Pacific whiting through January 1, 2007, or with a qualifications necessary to participate in catch was allocated between vessels that shoreside catcher vessel that has no particular non-tribal sectors of the landed on shore and those that caught history of participation within the Pacific whiting fishery. At its September Pacific whiting for processing at sea. shore-based sector of the whiting fishery 9–14, 2007 meeting in Portland, Oregon, during the period from January 1, 1994 the Council reviewed an EA and draft Amendment 15 Implementing through January 1, 2007, as specified in amendatory language for Amendment Regulations § 660.373(j). Participation in the shore- 15, and listened to the advice of its Amendment 15 proposes to based sector is in reference to advisory bodies and members of the implement a limited entry program for participation in the primary whiting public on choosing a preferred the three non-tribal sectors of the Pacific season. This rule proposes that, in order alternative for implementing whiting fishery. Vessels would be to qualify for a Pacific whiting vessel Amendment 15. Council discussions required to meet certain participation license in the shore-based sector, concerned the likelihood of new entry criteria and, with the exception of the documentation is required to show the given increased whiting exvessel prices motherships, would also be required to vessel made at least one landing of and declining pollock quotas. Council have the vessel registered to a Pacific whiting taken with mid-water trawl gear discussions centered on the effects of Coast groundfish limited entry permit. during a primary shore based season new entry into a fishery already Motherships would only be required to during the period January 1, 1994 experiencing declining limited West meet the participation criteria. The through January 1, 2007, and that the Coast trawl opportunities due to regulations proposed in this rule for weight of whiting exceeded 50 percent overfished species rebuilding measures, Amendment 15 would follow NMFS of the total weight of the landing. concerns about the conservation of Northwest Region’s historic practices for NMFS is authorized under the overfished groundfish stocks and implementing license limitation and Magnuson-Stevens Act to collect funds salmon stocks listed under the permit limitation programs, such as the from permit recipients to recover the

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cost of the permitting process. NMFS - an action otherwise prohibited by owners diligently renew their permits as initially estimates that the fee for initial limited entry permit regulations. At quickly as possible, often sending issuance of Pacific whiting licenses will least one vessel owner who had, prior renewals and fees by mid-September. be $650 per license it issued. NMFS to the implementation of the temporary NMFS immediately deposits funds must receive the fee payment in full to rule, prepared for participating in the received, in keeping with good consider the application complete and 2007 Pacific whiting fishery by accounting practices. As a result of this to process the application. purchasing and aggregating permits in one-month lag between renewal notices For 2009, NMFS would both publish order to create a permit with a length and fiscal year start date, each renewal a list of vessels that have qualified for endorsement long enough to suit their period inevitably includes funds the Pacific whiting vessel license in the vessel. The temporary rule provided an received in two separate fiscal years. Federal Register, and would issue exception to regulations that would Moving the renewal date to September licenses to those vessels that apply prior normally not allow disaggregating 15th would aid NMFS by ensuring that to the start of the 2009 fishing season. permits, in order to mitigate for the funds received to renew permits for a Each license will indicate the sector or potential long-term effects on vessel particular fishing year are credited to sectors for which the vessel has owners who had expected to become the applicable fiscal year. qualified. To participate in any of the new participants in the 2007 Pacific September 1st is also the start of a non-tribal whiting sectors in 2009 and whiting fishery, but who were two-month cumulative limit period, beyond, a harvesting vessel would be prevented by the temporary rule. which means that the week just prior to required to be registered for use with Because this provision was improperly September 1st, numerous permit owners both a groundfish limited entry permit implemented as a permanent change to submit permit transfers to move their and with a Pacific whiting vessel Federal regulations instead of permits to new boats for the start of the license. The license would be associated temporarily as provided by the September-October cumulative limit with the vessel, not with a limited entry Magnuson-Stevens Act, NMFS proposes period. This particular cumulative limit permit. A mothership vessel that to correct that mistake via this proposed period is often active for permit processes whiting, but does not harvest rule to implement Amendment 15. transfers, since it is the last cumulative would only be required to have a NMFS announced this intent in the limit period that also falls within the whiting vessel license for the notice that extended the emergency rule April - October primary tier sablefish mothership sector. Therefore, once (72 FR 64953; November 19, 2007) fishing season. Moving the renewal date issued, the Pacific whiting vessel These corrections would affect 50 CFR to September 15th would allow NMFS license would not be re-issued unless it 660.333(f) and 660.335(f)(3). to process last-minute permit transfer has been lost, or unless there is some requests before sending renewal change in the vessel owner information Regulations Steamlining notification packets to permit owners. for the vessel to which it is registered. In addition to this correction, this This will ensure that all renewal forms Consistent with the intent of action also proposes a measure for reflect the most recent changes to these Amendment 15, Pacific whiting vessel Federal regulations at § 660.335(a). In permits. For these reasons, Amendment license holders would not be allowed to their review of Chapter 11 of the FMP, 15 authorizes Federal regulations at transfer those licenses to any other NMFS and the Council noted that the § 660.335(a)(2) to be revised to read in vessels. chapter includes a requirement held part, ‘‘Notification to renew limited Based on an initial review of potential over from Amendment 6, the original entry permits will be issued by SFD qualifying vessels for each sector, NMFS limited entry program, that calls for prior to September 15 each year to the anticipates that there would be some NMFS to send out notification of annual most recent address of the permit catcher vessels that qualify to be limited entry permit renewals by owner....’’ licensed for both the shore-based and September 1 of each year. This mothership sectors. However, NMFS September 1 notification date was Classification also anticipates that there would not be included in the FMP in order to Pursuant to section 304 of the any vessels that qualify to be licensed as accommodate an annual 60–day Magnuson-Stevens Act, the NMFS both a catcher/processor and as a renewal period for vessel owners of Assistant Administrator has determined mothership processor. Therefore, NMFS October 1 through November 30. This that this proposed rule is consistent is proposing via this action to remove provision is implemented in Federal with the FMP, other provisions of the § 660.373(h), which allows that catcher/ regulations at § 660.335(a)(2), which Magnuson-Stevens Act, and other processor vessels have mobility between states in part, ‘‘Notification to renew applicable law, subject to further the different sectors mobility that the limited entry permits will be issued by consideration after public comment. Council has recommended eliminating SFD prior to September 1 each year to This proposed rule has been via Amendment 15. the most recent address of the permit determined to be significant for The proposed regulations to owner...’’ purposes of Executive Order 12866. implement Amendment 15 would also The Council recommended that An IRFA was prepared, as required by correct an error made in the temporary Amendment 15 include a shift in the section 603 of the Regulatory Flexibility rule discussed above and published on permit renewal notification date from Act (RFA). The IRFA describes the May 14, 2007 (72 FR 27759.) Through a September 1 to September 15. This shift economic impact this proposed rule, if mistake in the ‘‘DATES’’ section of the would not alter the October 1 through adopted, would have on small entities. May 17, 2007, temporary rule, NMFS November 30 renew period; rather, it A description of the action, why it is made permanent revisions to 50 CFR would help to ensure that renewals do being considered, and the legal basis for 660.333 and 660.335. These permanent not occur prior to October 1st, which this action are contained at the revisions allow limited entry trawl would be beneficial both from an beginning of this section in the permits that were created between accounting perspective and from an preamble and in the SUMMARY section December 31, 2006, and May 14, 2007, agency workload perspective. of the preamble. A summary of the by aggregating multiple limited entry The Federal fiscal year begins October analysis follows. A copy of this analysis permits, to be disaggregated back into 1st. When NMFS sends permit renewal is available from NMFS (see the initially combined component parts notices by September 1st, many permit ADDRESSES).

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The Small Business Administration business that catcher vessels conduct November 26, 1991, August 28, 1992, has established size criteria for all major with the mothership processors and September 27, 1993, May 14, 1996, and industry sectors in the US including fish shore-based processors. It is also December 15, 1999, pertaining to the harvesting and fish processing expected to have minimal impact on effects of the Pacific Coast groundfish businesses. The RFA recognizes and vessels in the catcher/processor sector FMP fisheries on Chinook salmon defines three kinds of small entities: of the fishery. If anything, this rule (Puget Sound, Snake River spring/ small businesses, small organizations, maintains the economics of the existing summer, Snake River fall, upper and small governmental jurisdictions. small businesses participating in the Columbia River spring, lower Columbia NMFS March 2007 Economic fishery as it prevents new vessels, River, upper Willamette River, Guidelines (http://www.nmfs.noaa.gov/ potentially the larger vessels from Sacramento River winter, Central Valley sfa/domeslfish/ Alaska, from participating in the fishery. spring, California coastal), coho salmon EconomicGuidelines.pdf) establish the NMFS is aware of one company that has (Central California coastal, southern current size standards for Magnuson- purchased several permits for possible Oregon/northern California coastal, and Stevens Act related rules as follows: combination into a single large permit Oregon coastal), chum salmon (Hood Any fish-harvesting or hatchery that has the length endorsement for use Canal summer, Columbia River), business is a small business if it is with a catcher/processor vessel, but this sockeye salmon (Snake River, Ozette independently owned and operated and company is not considered a small Lake), and steelhead (upper, middle and not dominant in its field of operation company as its involvement in Alaska lower Columbia River, Snake River and if it has total annual gross receipts pollock fisheries suggests that it earns Basin, upper Willamette River, central not in excess of $4.0 million. Total more than $4.0 million in revenues. California coast, California Central annual gross receipts should include There may be other companies large or Valley, south/central California, those of affiliates when practicable and small that wish to enter the fishery but southern California). appropriate to do so. Any vessel which we are unaware of any investments that NMFS reinitiated a formal section 7 both harvests and processes fish (also have been undertaken specifically for consultation under the ESA in 2005 for referred to as a catcher processor) is entering the whiting fishery. both the Pacific whiting midwater trawl currently considered a small business if This proposed rule contains a fishery and the groundfish bottom trawl its combined total annual gross receipts collection-of-information requirement fishery. The December 19, 1999, (including all affiliates, worldwide, subject to review and approval by the Biological Opinion had defined an where practicable and appropriate) are Office of Management and Budget 11,000 Chinook incidental take not in excess of $4.0 million. (OMB) under the Paperwork Reduction threshold for the Pacific whiting fishery. Adoption of Amendment 15 under the Act (PRA). This requirement has been During the 2005 Pacific whiting season, preferred alternative is expected to submitted to OMB for approval. Public the 11,000–fish Chinook incidental take maintain the existing economic reporting burden for applying for a threshold was exceeded, triggering character of the Pacific whiting fishery. Pacific whiting licenses is estimated to reinitiation. Also in 2005, new data The actual levels of jobs, revenues, average 60 minutes per response, from the West Coast Groundfish profits and total personal income for including the time for reviewing Observer Program became available, fishery participants and the affected instructions, searching existing data allowing NMFS to do a more complete communities will be influenced by such sources, gathering and maintaining the analysis of salmon take in the bottom things as the abundance of Pacific data needed, and completing and trawl fishery. whiting, market prices for Pacific reviewing the collection information. NMFS completed its reinitiation whiting and substitute commodities and Public comment is sought regarding: consultation and prepared a the condition of other fishery resources. whether this proposed collection of Supplemental Biological Opinion dated The number of fishery participants is information is necessary for the proper March 11, 2006. In its 2006 expected to stay relatively consistent performance of the functions of the Supplemental Biological Opinion, with the numbers observed in past years agency, including whether the NMFS concluded that catch rates of as no new entrants to the Pacific information shall have practical utility; salmon in the 2005 Pacific whiting whiting fishery will be permitted. the accuracy of the burden estimate; fishery were consistent with Accordingly, the economic impacts of ways to enhance the quality, utility, and expectations considered during prior the proposed action per se on existing clarity of the information to be consultations. Chinook bycatch has businesses are expected to be minimal collected; and ways to minimize the averaged about 7,300 over the last 15 provided that a significant number of burden of the collection of information, years and has only occasionally historically active vessels are not both including through the use of automated exceeded the reinitiation trigger of eligible for the limited Pacific whiting collection techniques or other forms of 11,000. Since 1999, annual Chinook licenses and choose to enter the fishery. information technology. Send comments bycatch has averaged about 8,450. The Either because of participation in Alaska on these or any other aspects of the Chinook ESUs most likely affected by Pollock and other fisheries or being collection of information to Northwest the Pacific whiting fishery have affiliated with large seafood companies, Region at the ADDRESSES above, and by generally improved in status since the catcher/processor and mothership e-mail to [email protected] 1999 section 7 consultation. Although operations operating in the WOC are not or fax to (202) 395–7285. these species remain at risk, as considered small businesses. Notwithstanding any other provision indicated by their ESA listing, NMFS Since 1994, approximately 26–31 of the law, no person is required to concluded that the higher observed catcher vessels have participated in the respond to, and no person shall be bycatch in 2005 does not require a shoreside fishery annually. subject to penalty for failure to comply reconsideration of its prior ‘‘no Approximately 10–43 catcher vessels with, a collection of information subject jeopardy’’ conclusion with respect to have participated in the mothership to the requirements of the PRA, unless the fishery. For the groundfish bottom fishery annually since 1994. These that collection of information displays a trawl fishery, NMFS concluded that companies are all assumed to be small currently valid OMB control number. incidental take in the groundfish businesses. This rulemaking is expected NMFS issued Biological Opinions fisheries is within the overall limits to have minimal impacts on the under the ESA on August 10, 1990, articulated in the Incidental Take

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Statement of the 1999 Biological Authority: 16 U.S.C. 1801 et seq. use with a limited entry permit must Opinion. The groundfish bottom trawl 2. In § 660.306, paragraph (f)(7) is comply with the vessel size limit from that opinion was 9,000 fish removed, paragraphs (f)(1) through (f)(6) requirements of this subpart. A sablefish annually. NMFS will continue to are redesignated as paragraphs endorsement is also required for a vessel monitor and collect data to analyze take (f)(2)through (f)(7), respectively, and a to participate in the primary season for levels. NMFS also reaffirmed its prior new paragraph (f)(1) is added to read as the limited entry fixed gear sablefish determination that implementation of follows: fishery, north of 36° N. lat. After the Groundfish FMP is not likely to § 660.306 Prohibitions. December 31, 2008, a catcher vessel jeopardize the continued existence of participating in either the whiting any of the affected ESUs. * * * * * shore-based or mothership sector must, Lower Columbia River coho (70 FR (f) * * * in addition to being registered for use (1) Fish in any of the sectors of the 37160, June 28, 2005) were recently with a limited entry permit, be whiting fishery described at § 660.373(a) listed and Oregon Coastal coho (73 FR registered for use with a sector- after January 1, 2009 using a vessel that 7816, February 11, 2008) were recently appropriate Pacific whiting vessel is not registered for use with a sector- relisted as threatened under the ESA. license under § 660.336. After December appropriate Pacific whiting vessel The 1999 biological opinion concluded 31, 2008, a vessel participating in the license under § 660.336. Prior to January that the bycatch of salmonids in the whiting catcher/processor sector must, 1, 2009, vessels are prohibited from Pacific whiting fishery were almost in addition to being registered for use fishing, landing, or processing Pacific entirely Chinook salmon, with little or with a limited entry permit, be whiting with a catcher/processor, no bycatch of coho, chum, sockeye, and registered for use with a sector- mothership or mothership catcher steelhead. The Southern Distinct appropriate Pacific whiting vessel vessel that has no history of Population Segment (DPS) of green license under § 660.336. After December participation within that specific sector sturgeon (71 FR 17757, April 7, 2006) 31, 2008, although a mothership vessel of the whiting fishery during the period were also recently listed as threatened participating in the whiting mothership from January 1, 1997, through January 1, under the ESA. As a consequence, sector is not required to be registered for 2007, or with a shoreside catcher vessels NMFS has reinitiated its Section 7 use with a limited entry permit, such that has no history of participation consultation on the PFMC’s Groundfish vessel must be registered for use with a within the shore-based sector of the FMP. sector-appropriate Pacific whiting vessel whiting fishery during the period from After reviewing the available license under § 660.336. January 1, 1994 through January 1, 2007, information, NMFS concluded that, in * * * * * keeping with Sections 7(a)(2) and 7(d) of as specified in § 660.373(j). For the 4. In § 660.335, paragraph (f)(3) is the ESA, the proposed action would not purpose of this paragraph, ‘‘historic removed and paragraph (a)(2) is revised result in any irreversible or irretrievable participation’’ for a specific sector is the to read as follows: commitment of resources that would same as the qualifying criteria listed in have the effect of foreclosing the § 660.336 (a)(2). § 660.335 Limited entry permits renewal, formulation or implementation of any (i) If a Pacific whiting vessel license combination, stacking, change of permit reasonable and prudent alternative is registered for use with a vessel, fail ownership or permit holdership, and measures. to carry that license onboard the vessel transfer. Under the Magnuson-Stevens Act at registered for use with the license at any (a) * * * time the vessel is licensed. A photocopy 16 U.S.C. 1852(b)(5), one of the voting (2) Notification to renew limited entry of the license may not substitute for the members of the Council must be a permits will be issued by SFD prior to representative of an Indian tribe with license itself. (ii) [Reserved] September 15 each year to the most federally recognized fishing rights from recent address of the permit owner. The the area of the Council’s jurisdiction. * * * * * permit owner shall provide SFD with 3. In § 660.333, paragraph (f) is Pursuant to Executive Order 13175, this notice of any address change within 15 removed and paragraph (a) is revised to action was developed through the days of the change. read as follows: Council process with meaningful * * * * * collaboration with tribal officials from § 660.333 Limited entry fishery eligibility 5. A new § 660.336 is added to read the area covered by the FMP. The tribal and registration. as follows: representative on the Council did not (a) General. A limited entry permit make a motion on this action for tribal confers a conditional privilege of § 660.336 Pacific whiting vessel licenses. fisheries. participating in the Pacific coast (a) Pacific whiting vessel license—(1) List of Subjects in 50 CFR Part 660 groundfish limited entry fishery, in General. After December 31, 2008, Fisheries, Fishing, Indian fisheries. accordance with Federal regulations in participation in the non-tribal primary 50 CFR part 660. In order for a vessel whiting season described in § 660.373(b) Dated: July 7, 2008. to participate in the limited entry requires that an owner of any vessel that Samuel D. Rauch III, fishery, the vessel owner must hold a catches or processes Pacific whiting Deputy Assistant Administrator for limited entry permit and, through SFD, hold: a limited entry permit, registered Regulatory Programs, National Marine must register that permit for use with for use with that vessel, with a trawl Fisheries Service. his/her vessel. When participating in gear endorsement; and, a Pacific whiting For the reasons set out in the the limited entry fishery, a vessel is vessel license, registered for use with preamble, 50 CFR part 660 is proposed authorized to fish with the gear type that vessel, appropriate to the sector or to be amended as follows: endorsed on the limited entry permit sectors in which the vessel intends to PART 660—FISHERIES OFF WEST registered for use with that vessel. There participate. Pacific whiting vessel COAST STATES are three types of gear endorsements: licenses are separate from limited entry trawl, longline, and pot (or trap). All permits and do not license a vessel to l. The authority citation for part 660 limited entry permits have size harvest whiting in the primary whiting continues to read as follows: endorsements and a vessel registered for season unless that vessel is also

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registered for use with a limited entry the qualifying criteria for a Pacific Groundfish-Halibut/Groundfish- permit with a trawl gear endorsement. whiting vessel license is documentation Permits/index.cfm. A vessel owner who (2) Pacific whiting vessel license of having made at least one landing of believes that his/her vessel may qualify qualifying criteria. whiting taken with mid-water trawl gear for the Pacific whiting vessel license (i) Qualifying criteria. Vessel catch during a primary shore-based season will have until December 31, 2008, to and/or processing history will be used during the period January 1, 1994, submit an application with to determine whether that vessel meets through January 1, 2007, and where the documentation showing how his/her the qualifying criteria for a Pacific weight of whiting exceeded 50 percent vessel has met the qualifying criteria whiting vessel license and to participate of the total weight of the landing. described in this section. NMFS will not in a specific sector of the Pacific whiting (ii) Documentation and burden of accept applications for Pacific whiting fishery in 2008 and to determine the proof. A vessel owner applying for a vessel licenses received after December sectors for which that vessel may Pacific whiting vessel license has the 31, 2008. qualify. Vessel catch and/or processing burden to submit documentation that (ii) After receipt of a complete history includes only the catch and/or qualification requirements are met. An application, NMFS will notify processed product of that particular application that does not include applicants by letter of its determination vessel, as identified in association with documentation of meeting the whether their vessels qualify for Pacific the vessel’s USCG number. Only qualification requirements during the whiting vessel licenses and the sector or whiting regulated by this subpart that qualifying years will be considered sectors to which the licenses apply. was taken with midwater (or pelagic) incomplete and will not be reviewed. Vessels that have met the qualification trawl gear will be considered for the The following standards apply: criteria will be issued the appropriate Pacific whiting vessel license. Whiting (A) A certified copy of the current licenses at that time. After December 31, harvested or processed by a vessel that vessel document (USCG or State) is the 2008, NMFS will publish a list of has since been totally lost or best documentation of vessel ownership vessels that qualified for Pacific whiting decommissioned will not be considered and LOA. vessel licenses in the Federal Register. for this license. Whiting harvested or (B) A certified copy of a State fish (iii) If a vessel owner files an appeal processed illegally or landed illegally receiving ticket is the best from the determination under paragraph will not be considered for this license. documentation of a landing at a Pacific (a)(3)(ii) of this section the appeal must Catch and/or processing history whiting shoreside first receiver, and of be filed with the Regional Administrator associated with a vessel whose permit the type of gear used. within 30 calendar days of the issuance was purchased by the Federal (C) For participants in the at-sea of the letter of determination. The government through the Pacific Coast whiting fisheries, documentation of appeal must be in writing and must groundfish fishing capacity reduction participation could include, but is not allege facts or circumstances, and program, as identified in 68 FR 62435 - limited to: a final observer report include credible documentation 62440 (November 4, 2003), does not documenting a particular catcher vessel, demonstrating why the vessel qualifies qualify a vessel for a Pacific whiting mothership, or catcher/processor’s for a Pacific whiting vessel license. The vessel license and no vessel owner may participation in the whiting fishery in appeal of a denial of an application for apply for or receive a Pacific whiting an applicable year and during the a Pacific whiting vessel license will not vessel license based on catch and/or applicable primary season, a bill of be referred to the Council for a processing history from one of those lading for whiting from an applicable recommendation, nor will any appeals buyback vessels. The following sector- year and during the applicable primary be accepted by NMFS after April 1, specific license qualification criteria season, a catcher vessel receipt from a 2009. apply: particular mothership known to have participated in the whiting fishery (iv) Absent good cause for further (A) For catcher/processor vessels, the during an applicable year, a signed copy delay, the Regional Administrator will qualifying criteria for a Pacific whiting of a Daily Receipt of Fish and issue a written decision on the appeal vessel license is evidence of having Cumulative Production Logbook within 30 calendar days of receipt of the caught and processed any amount of (mothership sector) or Daily Fishing and appeal. The Regional Administrator’s whiting during a primary catcher/ Cumulative Production Logbook decision is the final administrative processor season during the period (catcher/processor sector) from an decision of the Department of January 1, 1997 through January 1, 2007. applicable year during the applicable Commerce as of the date of the decision. (B) For mothership at-sea processing primary season. (4) Notification to NMFS of changes to vessels, the qualifying criteria for a (E) Such other relevant, credible Pacific whiting vessel license Pacific whiting vessel license is documentation as the applicant may information. The owner of a vessel documentation of having received and submit, or the SFD or the Regional registered for use with a Pacific whiting processed any amount of whiting during Administrator request or acquire, may vessel license must provide a written a primary mothership season during the also be considered. request to NMFS to change the name or period January 1, 1997 through January (3) Issuance process for Pacific names of vessel owners provided on the 1, 2007. whiting vessel licenses. vessel license, or to change the licensed (C) For catcher vessels delivering (i) SFD will mail Pacific whiting vessel’s name. The request must detail whiting to at-sea mothership processing vessel license applications to all current the names of all new vessel owners, a vessels, the qualifying criteria for a and prior owners of vessels that have business address for the vessel owner, Pacific whiting vessel license is been registered for use with limited business phone and fax number, tax documentation of having delivered any entry permits with trawl endorsements, identification number, date of birth, amount of whiting to a mothership excluding owners of those vessels and/or date of incorporation for each processor during a primary mothership whose permits were purchased through individual and/or entity, and a copy of season during the period January 1, the Pacific Coast groundfish fishing the vessel documentation (USCG 1270) 1997, through January 1, 2007. capacity reduction program. NMFS will to show proof of ownership. NMFS will (D) For catcher vessels delivering also make license applications available reissue a new vessel license with the whiting to Pacific whiting first receiver, online at: http://www.nwr.noaa.gov/ names of the new vessel owners and/or

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vessel name information. The Pacific § 660.339 Limited entry permit and Pacific processors, which are vessels that whiting vessel license is considered whiting vessel license fees. harvest and process whiting during a void if the name of the vessel or vessel The Regional Administrator will calendar year. The mothership sector is owner is changed from that given on the charge fees to cover administrative composed of motherships vessels that license. In addition, the vessel owner expenses related to issuance of limited process whiting and catcher vessels that must report to NMFS any change in entry permits, and Pacific whiting harvest whiting for delivery to address for the vessel owner within 15 vessel licenses including initial motherships. Motherships are vessels days of that change. Although the name issuance, renewal, transfer, vessel that process, but do not harvest, whiting registration, replacement, and appeals. of an individual vessel registered for use during a calendar year. The shore-based The appropriate fee must accompany with a Pacific whiting vessel license sector is composed of vessels that each application. may be changed, the license itself may 7. In § 660.373, paragraph (h) is harvest whiting for delivery to Pacific not be registered to any vessel other removed, and paragraphs (i) and (j) are whiting shoreside first receivers. In than the vessel to which it was redesignated as (h) and (i), respectively, order for a vessel to participate in a originally issued, as identified by that and paragraph (a) is revised to read as particular whiting fishery sector, that vessel’s United States Coast Guard follows: vessel must be registered for use with a documentation number. sector-specific Pacific whiting vessel § 660.373 Pacific whiting (whiting) fishery license under § 660.336. 6. Section 660.339 is revised to read management. as follows: (a) Sectors and licensing * * * * * requirements. The catcher/processor [FR Doc. E8–15833 Filed 7–10–08; 8:45 am] sector is composed of catcher/ BILLING CODE 3510–22–S

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Notices Federal Register Vol. 73, No. 134

Friday, July 11, 2008

This section of the FEDERAL REGISTER ADDRESSES: Forest Supervisor, Salmon- Additions contains documents other than rules or Challis National Forest, 1206 South On April 25, May 2, May 9 and May proposed rules that are applicable to the Challis Street, Salmon, Idaho 83467. public. Notices of hearings and investigations, 16, 2008, the Committee for Purchase FOR FURTHER INFORMATION CONTACT: committee meetings, agency decisions and From People Who Are Blind or Severely rulings, delegations of authority, filing of Patricia Callaghan, Recreation Planner, Disabled published notice (73 FR 22324; petitions and applications and agency 208–756–5115. Information about 24219; 26363; 28429) of proposed statements of organization and functions are proposed fee changes can also be found additions to the Procurement List. examples of documents appearing in this on the Salmon-Challis National Forest After consideration of the material section. Web site: http://www.fs.fcd.us/r4/sc/ presented to it concerning capability of recreationlfeedemo/index.shtml. qualified nonprofit agencies to provide SUPPLEMENTARY INFORMATION: The the product and services and impact of DEPARTMENT OF AGRICULTURE Federal Recreation Lands Enhancement the additions on the current or most Act (Title VII, Pub. L. 108–447) directed recent contractors, the Committee has Forest Service the Secretary of Agriculture to publish determined that the products and Notice of Proposed New Fee Sites; a six month advance notice in the services listed below are suitable for Federal Lands Recreation Federal Register whenever new procurement by the Federal Government Enhancement Act (Title VIII, Pub. L. recreation fee areas are established. under 41 U.S.C. 46–48c and 41 CFR 51– 108–447) Once public involvement is complete, 2.4. these new fees will be reviewed by a Regulatory Flexibility Act Certification AGENCY: Salmon-Challis National Recreation Resource Advisory Forest, USDA Forest Service. Committee prior to a final decision and I certify that the following action will ACTION: Notice of Proposed New Fee implementation. not have a significant impact on a Sites. substantial number of small entities. Dated: July 1, 2008. The major factors considered for this SUMMARY: The Salmon-Challis National Larry A. Svalberg, certification were: Forest is planning to charge fees at Operations Staff Officer. 1. The action will not result in any eleven recreation sites. All sites have [FR Doc. E8–15553 Filed 7–10–08; 8:45 am] additional reporting, recordkeeping or recently been reconstructed or amenities BILLING CODE 3410–11–M other compliance requirements for small are being added to improve services and entities other than the small experiences. Fees are assessed based on organizations that will furnish the the level of amenities and services COMMITTEE FOR PURCHASE FROM product and services to the Government. provided, cost of operation and PEOPLE WHO ARE BLIND OR 2. The action will result in maintenance, market assessment, and SEVERELY DISABLED authorizing small entities to furnish the public comment. The fees listed are product and services to the Government. only proposed and will be determined Procurement List; Additions and 3. There are no known regulatory upon further analysis and public Deletion alternatives which would accomplish comment. Funds from fees would be the objectives of the Javits-Wagner- AGENCY: Committee for Purchase From used for the continued operation and O’Day Act (41 U.S.C. 46–48c) in People Who Are Blind or Severely maintenance of these recreation sites. connection with the product and Custer #1, Flat Rock Extension and Disabled. services proposed for addition to the Blind Creek Campgrounds are currently ACTION: Additions to and Deletion from Procurement List. the Procurement List. fee free sites. Improvements have been End of Certification made including designating campsites, SUMMARY: This action adds to the Accordingly, the following product installing fire rings, picnic tables and Procurement List a product and services new toilets in 2007. Improvements will and services are added to the to be furnished by nonprofit agencies Procurement List: address sanitation and safety concerns, employing persons who are blind or and improve deteriorating resource have other severe disabilities, and conditions and recreation experiences. Product deletes from the Procurement List a Cap, Garrison, Unisex, U.S. Navy Mosquito Flat Reservoir, Mill Creek service previously furnished by such (Lost River RD), Broad Canyon, Lake NSN: 8405–01–539–5868—Size 6 3/8 agencies. NSN: 8405–01–539–5869—Size 6 1/2 Creek, Banner Creek, Mount Borah, DATES: Effective Date: August 10, 2008. NSN: 8405–01–539–5873—Size 6 5/8 Bench Creek and Big Eightmile NSN: 8405–01–539–5887—Size 6 3/4 campgrounds contain the necessary site ADDRESSES: Committee for Purchase NSN: 8405–01–539–5888—Size 6 7/8 amenities to be eligible for fee From People Who Are Blind or Severely NSN: 8405–01–539–5889—Size 7 collection. A financial analysis is being Disabled, Jefferson Plaza 2, Suite 10800, NSN: 8405–01–539–5891—Size 7 1/8 completed to determine fee rates. The 1421 Jefferson Davis Highway, NSN: 8405–01–539–5892—Size 7 1/4 proposed fee to help maintain these Arlington, Virginia 22202–3259. NSN: 8405–01–539–5894—Size 7 3/8 sites would range between $5 and $10 FOR FURTHER INFORMATION CONTACT: NSN: 8405–01–539–5895—Size 7 1/2 a campsite. Kimberly M. Zeich, Telephone: (703) NSN: 8405–01–539–5897—Size 7 5/8 NSN: 8405–01–539–5900—Size 7 3/4 DATES: New fees would begin after April 603–7740, Fax: (703) 603–0655, or e- NSN: 8405–01–539–5934—Size 7 7/8 2009 and are contingent upon mail [email protected]. NSN: 8405–01–539–5937—Size 8 completion of certain improvements. SUPPLEMENTARY INFORMATION: NSN: 8405–01–539–5939—Size 8 1/8

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NSN: 8405–01–539–5962—Size 8 1/4 the objectives of the Javits-Wagner- permits, members of the public may NSN: 8405–01–539–5969—Size 8 3/8 O’Day Act (41 U.S.C. 46–48c) in present oral statements to the NSN: 8405–01–539–6335—Size 8 1/2 connection with the service deleted Committee. The public may submit NPA: Goodwill Industries of South Florida, Inc., Miami, FL. from the Procurement List. written statements at any time before or after the meeting. However, to facilitate Coverage: C-List for 25% of the requirement End of Certification of the Defense Supply Center distribution of public presentation Philadelphia, Philadelphia, PA. Accordingly, the following service is materials to the Committee members, Contracting Activity: Defense Supply Center deleted from the Procurement List: the Committee suggests that the Philadelphia, Philadelphia, PA. materials be forwarded before the Service Services meeting to Ms. Springer. Service Type/Location: Janitorial/Custodial. The Assistant Secretary for Service Type/Location: Custodial & Grounds Veterans Affairs Medical Center, Seattle, Administration, with the concurrence of Maintenance. WA. U.S. Federal Building and Courthouse—St. the General Counsel, formally NPA: Seattle Mental Health Institute, Inc., determined on June 30, 2008 pursuant Thomas, 5500 Veterans Drive, St. Seattle, WA. Thomas, U.S. Virgin Islands. Contracting Activity: Department of Veterans to Section 10(d) of the Federal Advisory Service Type/Location: Custodial Services. Affairs, Washington, DC. Committee Act, as amended (5 U.S.C. Louis Munoz Marin International Airport, app. 2 § 10(d)), that the portion of this TSA Occupied Spaces, Carolina, PR. Kimberly M. Zeich, meeting dealing with pre-decisional Service Type/Location: Custodial Services. Director, Program Operations. changes to the Commerce Control List Social Security Administration Building, Plaza Sierra Cayey, Building PR3871ZZ, [FR Doc. E8–15781 Filed 7–10–08; 8:45 am] and U.S. export control policies shall be Cayey, PR. BILLING CODE 6353–01–P exempt from the provisions relating to NPA: The Corporate Source, Inc., New York, public meetings found in 5 U.S.C. app. NY. 2 §§ 10(a)(1) and 10(a)(3). The remaining Contracting Activity: General Services DEPARTMENT OF COMMERCE portions of the meeting will be open to Administration, Caribbean Property the public. Management Center, Hato Rey, PR. Bureau of Industry and Security For more information contact Yvette Service Type/Location: Custodial Services. Springer on (202) 482–2813. U.S. Army Reserve Center, 400 Wyoming Sensors and Instrumentation Dated: July 8, 2008. Blvd NE., Albuquerque, NM. Technical Advisory Committee; Notice NPA: Adelante Development Center, Inc., of Partially Closed Meeting Yvette Springer, Albuquerque, NM. Committee Liaison Officer. Contracting Activity: 90th Regional The Sensors and Instrumentation [FR Doc. E8–15870 Filed 7–10–08; 8:45 am] Readiness Command, North Little Rock, Technical Advisory Committee (SITAC) AR. BILLING CODE 3510–JT–P Service Type/Location: Mailroom Operations. will meet on July 29, 2008, 9:30 a.m., in Fort Stewart, 1042 William H. Wilson the Herbert C. Hoover Building, Room Avenue, Fort Stewart, GA. 3884, 14th Street between Constitution DEPARTMENT OF COMMERCE NPA: Abilities, Inc. of Florida, Clearwater, and Pennsylvania Avenues, NW., FL. Washington, DC. The Committee International Trade Administration Contracting Activity: Army Contracting advises the Office of the Assistant A–570–848 Agency, Directorate of Contracting, Fort Secretary for Export Administration on Stewart, GA. technical questions that affect the level Freshwater Crawfish Tail Meat from the Deletion of export controls applicable to sensors People’s Republic of China: Notice of On May 9, 2008, the Committee for and instrumentation equipment and Amended Final Results of Purchase From People Who Are Blind technology. Administrative Review Pursuant to or Severely Disabled published notice Agenda Final Court Decision (73 FR 26362) of proposed deletions to Public Session AGENCY: Import Administration, the Procurement List. International Trade Administration, After consideration of the relevant 1. Welcome and Introductions. Department of Commerce. matter presented, the Committee has 2. Remarks from Bureau of Industry EFFECTIVE DATE: July 11, 2008. determined that the service listed below and Security Management. FOR FURTHER INFORMATION CONTACT: are no longer suitable for procurement 3. Industry Presentations. Alex by the Federal Government under 41 4. New Business. Villanueva, AD/CVD Operations, Office U.S.C. 46–48c and 41 CFR 51–2.4. 9, Import Administration, International Closed Session Trade Administration, U.S. Department Regulatory Flexibility Act Certification 5. Discussion of matters determined to of Commerce, 14th Street and I certify that the following action will be exempt from the provisions relating Constitution Avenue, NW, Washington, not have a significant impact on a to public meetings found in 5 U.S.C. DC 20230; telephone: 202- 482–3208. substantial number of small entities. app. 2 §§ 10(a)(1) and 10(a)(3). SUPPLEMENTARY INFORMATION: The open session will be accessible The major factors considered for this Background certification were: via teleconference to 20 participants on 1. The action should not result in a first come, first serve basis. To join the This matter arose from a challenge to additional reporting, recordkeeping or conference, submit inquiries to Ms. the results in the Department of other compliance requirements for small Yvette Springer at Commerce’s (the ‘‘Department’’) Notice entities. [email protected] no later than July of Final Results of Antidumping Duty 2. The action may result in 22, 2008. Administrative Review, and Final authorizing small entities to furnish the A limited number of seats will be Partial Rescission of Antidumping Duty service to the Government. available during the public session of Administrative Review of Freshwater 3. There are no known regulatory the meeting. Reservations are not Crawfish Tail Meat from the People’s alternatives which would accomplish accepted. To the extent that time Republic of China, 67 FR 19546 (April

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22, 2002) (‘‘Final Results’’) and 02–00376 (January 24, 2008) (‘‘Final DEPARTMENT OF COMMERCE accompanying Issues and Decision Redetermination’’), found at http:// Memorandum (‘‘Memo’’), covering the ia.ita.doc.gov/remands/07–156.pdf. In International Trade Administration period of review (‘‘POR’’), September 1, the remand redetermination, pursuant A–351–838 1999 August 31, 2000. Following to the CIT’s order, the Department publication of the Final Results, Fujian considered Fujian and Pacific Coast Certain Frozen Warmwater Shrimp Pelagic Fishery Group Co. (‘‘Fujian’’) affiliated parties under section from Brazil: Final Results and Partial and Pacific Coast Fishery Corp. (‘‘Pacific 771(33)(E) of the Act and recalculated Rescission of Antidumping Duty Coast’’), filed a lawsuit with the United Fujian’s dumping margin using Pacific Administrative Review States Court of International Trade Coast’s CEP sales data. On March 5, (‘‘CIT’’) challenging the Department’s AGENCY: Import Administration, 2008, the CIT sustained all aspects of International Trade Administration, Final Results. In the Final Results, the the remand redetermination made by Department determined that Fujian and Department of Commerce. the Department pursuant to the CIT’s Pacific Coast were not affiliated SUMMARY: On March 6, 2008, the remand of the Final Results. See pursuant to section 771(33) of the Tariff Department of Commerce (the Act of 1930, as amended (‘‘the Act’’). Crawfish Processors Alliance v. United Department) published the preliminary See Memo at Comment 18. Fujian and States, Slip Op. 08–27 (March 5, 2008). results of the administrative review of Pacific Coast challenged the On March 20, 2008, consistent with the antidumping duty order on certain Department’s determination and the CIT the decision in Timken Co. v. United frozen warmwater shrimp (shrimp) from affirmed the Department’s States, 893 F.2d 337 (Fed. Cir. 1990), the Brazil. This review covers 15 producers/ determination that Fujian and Pacific Department notified the public that the exporters of the subject merchandise to Coast were not affiliated parties because CIT’s decision was not in harmony with the United States. The period of review ‘‘Fujian had not made an investment, the Department’s final results. See (POR) is February 1, 2006, through whether in cash or in the form of a Freshwater Crawfish Tail Meat from the January 31, 2007. We are rescinding the promissory note, in Pacific Coast’’ and People’s Republic of China: Notice of review with respect to one company because ‘‘Fujian did not exercise control Court Decision Not In Harmony With which made no shipments of the subject merchandise during the POR. over Pacific Coast.’’ See Crawfish Final Results of Administrative Review, Based on our analysis of the Processors Alliance, et al. v. United 73 FR 14960 (March 20, 2008). No party States, 343 F. Supp. 2d 1242, 1269 (CIT comments received, we have made appealed the CIT’s decision. As there is certain changes to the margin 2004). now a final and conclusive court Fujian and Pacific Coast timely calculations. Therefore, the final results decision in this case, we are amending appealed the CIT’s decision with the differ from the preliminary results. The United States Court of Appeals for the our Final Results. final weighted-average dumping Federal Circuit (‘‘CAFC’’). The only Amended Final Results margins for the reviewed firms are listed issue considered on appeal was whether below in the section entitled ‘‘Final Fujian and Pacific Coast were affiliated As the litigation in this case has Results of Review.’’ parties pursuant to section 771(33)(E) of concluded, the Department is amending EFFECTIVE DATE: July 11, 2008. the Act. The CAFC reversed the CIT’s the Final Results to reflect the results of FOR FURTHER INFORMATION CONTACT: Kate affirmance of the Department’s our remand determination. The revised Johnson or Rebecca Trainor, AD/CVD determination that Fujian and Pacific dumping margin in the amended final Operations, Office 2, Import Coast were not affiliated because section results is as follows: Administration, International Trade 771(33)(E) of the Act does not require Administration, U.S. Department of ‘‘proof of full payment in cash or Exporter Margin Commerce, 14th Street and Constitution merchandise during the review period Avenue, NW, Washington, DC, 20230; to show affiliation’’ and that Fujian and Fujian ...... 60.83% telephone (202) 482–4929 and (202) Pacific Coast ‘‘have presented sufficient 482–4007, respectively. evidence to show that Fujian directly or The Department will instruct U.S. SUPPLEMENTARY INFORMATION: indirectly owns at least 5% of Pacific Customs and Border Protection (‘‘CBP’’) Coast’s shares.’’ See Crawfish Processors to liquidate entries of freshwater Background Alliance, et al. v. United States, 477 crawfish tail meat from the People’s This review covers 15 producers/ F.3d 1375, 1384 (Fed. Cir. 2007). The Republic of China during the review exporters.1 The respondents which the CAFC remanded the case to the CIT for period at the assessment rate the Department selected for individual proceedings consistent with its opinion. Department calculated for the final review are Amazonas Industrias Therefore, on October 30, 2007, the CIT results of review as amended. We intend Alimenticias S.A. (‘‘AMASA’’) and directed the Department to recalculate to issue the assessment instructions to Comercio de Pescado Aracatiense Ltda. the antidumping duty margin treating CBP 15 days after the date of (‘‘Compescal’’). The respondents which Fujian and Pacific Coast as affiliated publication of these amended final were not selected for individual review parties in compliance with the CAFC’s results of review. are listed in the ‘‘Final Results of decision and mandate. Review’’ section of this notice. This notice is published in On December 11, 2007, the On March 6, 2008, the Department accordance with sections 751(a)(1) and Department released the draft final published in the Federal Register the results of redetermination for comment. 777(i) of the Act. preliminary results of administrative No party submitted comments by the Dated: July 3, 2008. review of the antidumping duty order December 20, 2007, deadline. On David M. Spooner, on shrimp from Brazil. See Certain January 24, 2008, the Department filed Frozen Warmwater Shrimp from Brazil: its final results of redetermination Assistant Secretary for Import Administration. pursuant to remand with the CIT. See 1 [FR Doc. E8–15811 Filed 7–10–08; 8:45 am] This figure does not include those companies Final Results of Redetermination for which the Department is rescinding the Pursuant to Court Remand, Court No. BILLING CODE 3510–DS–S administrative review.

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Preliminary Results and Preliminary Frozen shrimp and prawns that are 13, 2007, Qualimar submitted a quantity Partial Rescission of Antidumping Duty packed with marinade, spices or sauce and value (‘‘Q&V’’) questionnaire Administrative Review, 73 FR 12081 are included in the scope of this order. response stating that it had no (March 6, 2008) (Preliminary Results). In addition, food preparations, which shipments/exports of subject We invited parties to comment on our are not ‘‘prepared meals,’’ that contain merchandise to the United States during preliminary results of review. On April more than 20 percent by weight of the POR. Furthermore, data from U.S. 7, 2008, AMASA requested a public shrimp or prawn are also included in Customs and Border Protection (‘‘CBP’’) hearing. On April 14, 2008, we received the scope of this order. show that Qualimar did not have a case brief from the Louisiana Shrimp Excluded from the scope are: 1) shipments of subject merchandise Association, an interested party in this breaded shrimp and prawns (HTSUS during the POR. Accordingly, we are proceeding. On April 16, 2008, we subheading 1605.20.10.20); 2) shrimp rescinding this review with respect to received case briefs from AMASA and and prawns generally classified in the Qualimar. Pandalidae family and commonly the petitioner (i.e., the Ad Hoc Shrimp Successor-In-Interest Trade Action Committee). On April 28, referred to as coldwater shrimp, in any we received rebuttal briefs from state of processing; 3) fresh shrimp and As discussed in the Preliminary AMASA and the petitioner. On May 2, prawns whether shell-on or peeled Results, on April 18, 2007, Empresa De 2008, AMASA withdrew its request for (HTSUS subheadings 0306.23.00.20 and Armazenagem Frigorifica Ltda. (Empaf) a hearing. 0306.23.00.40); 4) shrimp and prawns in informed the Department that it is now doing business as Netuno Alimentos The Department has conducted this prepared meals (HTSUS subheading S.A. (Netuno).3 On May 9, 2007, in administrative review in accordance 1605.20.05.10); 5) dried shrimp and response to the Department’s request for with section 751 of the Tariff Act of prawns; 6) canned warmwater shrimp additional information, Netuno asserted 1930, as amended (the Act). and prawns (HTSUS subheading 1605.20.10.40); 7) certain dusted its view that it is the successor-in- Scope of the Order shrimp; and 8) certain battered shrimp. interest to Empaf. Specifically, Netuno Dusted shrimp is a shrimp-based stated that there were no changes to The scope of this order includes product: 1) that is produced from fresh Empaf’s management, production certain frozen warmwater shrimp and (or thawed-from-frozen) and peeled facilities for the subject merchandise, prawns, whether wild-caught (ocean shrimp; 2) to which a ‘‘dusting’’ layer of supplier relationships, or customer base harvested) or farm-raised (produced by rice or wheat flour of at least 95 percent as a result of the change in corporate aquaculture), head-on or head-off, shell- purity has been applied; 3) with the structure. Based on our analysis of on or peeled, tail-on or tail-off,2 entire surface of the shrimp flesh Netuno’s May 9, 2007, submission, we deveined or not deveined, cooked or thoroughly and evenly coated with the preliminarily found that its raw, or otherwise processed in frozen flour; 4) with the non-shrimp content of organizational structure, management, form. the end product constituting between production facilities, supplier The frozen warmwater shrimp and four and 10 percent of the product’s relationships, and customers have prawn products included in the scope of total weight after being dusted, but prior remained essentially unchanged. We this order, regardless of definitions in to being frozen; and 5) that is subjected also found that Netuno operates as the the Harmonized Tariff Schedule of the to IQF freezing immediately after same business entity as Empaf with United States (HTSUS), are products application of the dusting layer. respect to the production and sale of which are processed from warmwater Battered shrimp is a shrimp-based certain frozen warmwater shrimp. Thus, shrimp and prawns through freezing product that, when dusted in we preliminarily found that Netuno is and which are sold in any count size. accordance with the definition of the successor-in-interest to Empaf, and, The products described above may be dusting above, is coated with a wet as a consequence, its exports of certain processed from any species of viscous layer containing egg and/or frozen warmwater shrimp are subject to warmwater shrimp and prawns. milk, and par-fried. the antidumping duty order on shrimp Warmwater shrimp and prawns are The products covered by this order from Brazil. generally classified in, but are not are currently classified under the Since the Preliminary Results, no limited to, the Penaeidae family. Some following HTSUS subheadings: party to this proceeding has commented examples of the farmed and wild-caught 0306.13.00.03, 0306.13.00.06, on this issue, and we have found no warmwater species include, but are not 0306.13.00.09, 0306.13.00.12, additional information that would limited to, whiteleg shrimp (Penaeus 0306.13.00.15, 0306.13.00.18, compel us to reverse our preliminary vannemei), banana prawn (Penaeus 0306.13.00.21, 0306.13.00.24, finding. Thus, for purposes of these merguiensis), fleshy prawn (Penaeus 0306.13.00.27, 0306.13.00.40, final results, we continue to find that chinensis), giant river prawn 1605.20.10.10, and 1605.20.10.30. These Netuno is the successor-in-interest to (Macrobrachium rosenbergii), giant tiger HTSUS subheadings are provided for Empaf for purposes of determining prawn (Penaeus monodon), redspotted convenience and for customs purposes antidumping duty liability. shrimp (Penaeus brasiliensis), southern only and are not dispositive, but rather Facts Available brown shrimp (Penaeus subtilis), the written description of the scope of southern pink shrimp (Penaeus this order is dispositive. In the Preliminary Results, we notialis), southern rough shrimp determined that, in accordance with (Trachypenaeus curvirostris), southern Period of Review section 776(a)(2)(A) of the Act, the use white shrimp (Penaeus schmitti), blue The POR is February 1, 2006, through of facts available was appropriate as the shrimp (Penaeus stylirostris), western January 31, 2007. basis for the dumping margins for the white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus Partial Rescission of Review 3 In the original investigation, we found that indicus). In the Preliminary Results, we Empaf and Maricultura Netuno comprised a single entity. See Notice of Final Determination of Sales preliminarily rescinded this review with at Less Than Fair Value: Certain Frozen and 2 ‘‘Tails’’ in this context means the tail fan, which respect to Qualimar Comercio Imp. E Canned Warmwater Shrimp from Brazil, 69 FR includes the telson and the uropods. Exp. Ltda. (‘‘Qualimar’’). On September 76910 (Dec. 23, 2004).

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following producer/exporters: Acarau Notice of Final Results of Antidumping International Trade (CIT) and the Court Pesca Distr. de Pescado Imp. E Exp. Duty Administrative Review: Stainless of Appeals for the Federal Circuit have Ltda., Aquacultura Fortaleza Aquafort Steel Bar from India, 70 FR 54023, consistently upheld the Department’s SA, Compescal, ITA Fish - S.W.F. 54025–26 (Sept. 13, 2005); see also practice in this regard. See Rhone Importacao e Exportacao Ltda., Orion Notice of Final Determination of Sales Poulenc, Inc. v. United States, 899 F.2d Pesca Ltda., Santa Lavinia Comercio e at Less Than Fair Value and Final 1185, 1190 (Fed. Cir. 1990); NSK Ltd. v. Exportacao Ltda., Secom Aquicultura Negative Critical Circumstances: Carbon United States, 346 F. Supp. 2d 1312, Comercio E Industria SA, and Tecmares and Certain Alloy Steel Wire Rod from 1335 (CIT 2004) (upholding a 73.55 Maricultura Ltda. See Preliminary Brazil, 67 FR 55792, 55794–96 (Aug. 30, percent total AFA rate, the highest Results at 12083. 2002). Adverse inferences are available dumping margin from a Section 776(a) of the Act provides that appropriate ‘‘to ensure that the party different respondent in an LTFV the Department will apply ‘‘facts does not obtain a more favorable result investigation); see also Kompass Food otherwise available’’ if, inter alia, by failing to cooperate than if it had Trading Int’l v. United States, 24 CIT necessary information is not available cooperated fully.’’ See Statement of 678, 680 (2000) (upholding a 51.16 on the record or an interested party: 1) Administrative Action accompanying percent total AFA rate, the highest withholds information that has been the Uruguay Round Agreements Act, available dumping margin from a requested by the Department; 2) fails to H.R. Rep. No. 103–316, Vol. 1, at 870 different, fully cooperative respondent) provide such information within the (1994) (SAA). Furthermore, ‘‘affirmative and Shanghai Taoen Int’l Tading Co., deadlines established, or in the form or evidence of bad faith on the part of a Ltd. v. United States, 360 F Supp 2d manner requested by the Department; 3) respondent is not required before the 1339, 1348 (CIT 2005) (upholding a significantly impedes a proceeding; or Department may make an adverse 223.01 percent total AFA rate, the 4) provides such information, but the inference.’’ See Antidumping Duties; highest available dumping margin from information cannot be verified. Countervailing Duties; Final Rule, 62 FR a different respondent in a previous In April 2007, the Department 27296, 27340 (May 19, 1997). See also, administrative review). requested that all companies subject to Nippon Steel Corp. v. United States, 337 Section 776(b) of the Act provides review respond to the Department’s F.3d 1373, 1382 (Fed. Cir. 2003) that the Department may use as AFA Q&V questionnaire for purposes of (Nippon). We find that Acarau Pesca information derived from: 1) the mandatory respondent selection. The Distr. de Pescado Imp. E Exp. Ltda., petition; 2) the final determination in original deadline to file a response was Aquacultura Fortaleza Aquafort SA, the investigation; 3) any previous April 23, 2007. Because numerous Compescal, ITA Fish - S.W.F. review; or 4) any other information companies did not respond to this Importacao e Exportacao Ltda., Orion placed on the record. The Department’s initial request for information, in May Pesca Ltda., Santa Lavinia Comercio e practice, when selecting an AFA rate and June 2007, we issued letters to these Exportacao Ltda., Secom Aquicultura from among the possible sources of companies affording them a second and Comercio E Industria SA, and Tecmares information, has been to ensure that the third opportunity to submit a response Maricultura Ltda. did not act to the best margin is sufficiently adverse ‘‘as to to the Q&V questionnaire. The above- of their abilities in this proceeding, effectuate the statutory purposes of the mentioned companies again failed to within the meaning of section 776(b) of AFA rule to induce respondents to respond to our requests for Q&V data. the Act, because they failed to respond provide the Department with complete By failing to respond to the to the Department’s requests for and accurate information in a timely Department’s Q&V questionnaire, these information. Therefore, an adverse manner.’’ See e.g., Certain Steel companies withheld requested inference is warranted in selecting the Concrete Reinforcing Bars from Turkey; information and significantly impeded facts otherwise available. See Nippon, Final Results and Rescission of the proceeding. Thus, pursuant to 337 F. 3d at 1382–83. Antidumping Duty Administrative sections 776(a)(2)(A) and (C) of the Act, In the Preliminary Results, we Review in Part, 71 FR 65082, 65084 we preliminarily found that the use of assigned to the uncooperative (November 7, 2006). total facts available was warranted. companies an adverse facts available In selecting an appropriate AFA rate, Consistent with the Preliminary Results, (AFA) rate of 68.15 percent, the the Department considered: 1) the rates the Department finds that the use of preliminary margin calculated for alleged in the petition (see Notice of total facts available for Acarau Pesca AMASA, which, at the time, was the Initiation of Antidumping Duty Distr. de Pescado Imp. E Exp. Ltda., highest rate determined for any Investigations: Certain Frozen and Aquacultura Fortaleza Aquafort SA, respondent in any segment of the Canned Warmwater Shrimp From Compescal, ITA Fish - S.W.F. proceeding (i.e., the less-than-fair-value Brazil, Ecuador, India, Thailand, the Importacao e Exportacao Ltda., Orion (LTFV) investigation, the first People’s Republic of China and the Pesca Ltda., Santa Lavinia Comercio e administrative review, or the instant Socialist Republic of Vietnam, 69 FR Exportacao Ltda., Secom Aquicultura review). However, given the changes 3876, 3879 (January 27, 2004)); 2) the Comercio E Industria SA, and Tecmares made to the margin calculations for rates calculated in the final Maricultura Ltda. is appropriate for AMASA since the Preliminary Results,4 determination of the LTFV purposes of the final results, pursuant to the rate assigned to AMASA for investigation, as amended, which sections 776(a)(2)(A) and (C) of the Act. purposes of these final results is 48.60 ranged from 4.97 to 67.80 percent (see Notice of Amended Final Determination Application of Adverse Facts Available percent. Therefore, in accordance with Department policy to assign the highest of Sales at Less Than Fair Value and In selecting from among the facts rate on record of the proceeding as AFA, Antidumping Duty Order: Certain otherwise available, section 776(b) of for the final results, we have applied an Frozen Warmwater Shrimp from Brazil, the Act authorizes the Department to AFA margin of 67.80 percent from the 70 FR 5143 (February 1, 2005) (LTFV use an adverse inference if the LTFV investigation. The Court of Amended Final Determination and Department finds that an interested Order)); 3) the rates calculated in the party failed to cooperate by not acting 4 See Issues and Decision Memorandum (Decision final results of the 2004–2006 to the best of its ability to comply with Memo) accompanying this notice for further administrative review, which ranged the request for information. See, e.g., discussion. from 4.62 to 15.41 percent (see Certain

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Frozen Warmwater Shrimp from Brazil: would not accomplish the objectives of Compescal in the previous review. Final Results and Partial Rescission of AFA, stated above. Moreover, we have Based on these comparisons, we find Antidumping Duty Administrative an alternative that we find to be that the selected AFA rate is relevant Review, 72 FR 52061 (September 12, sufficiently adverse to effectuate the because it fell within the range of, or 2007) (2004–2006 Administrative purpose of the AFA provision of the approximated, the individual Review); and 4) the rate calculated for statute. transaction margins calculated for AMASA in the final results of this The reliability of the selected AFA AMASA in this review and for administrative review. As discussed rate was determined by the calculation Compescal in the previous review. See further below, we find that the rates of the margin for Norte Pesca, as Memorandum to The File from Kate alleged in the petition no longer have published in the LTFV Amended Final Johnson and Rebecca Trainor entitled probative value for purposes of this Determination and Order. With respect ‘‘Corroboration of Adverse Facts review. In addition, we find that the rate to corroboration of a rate calculated in Available Rate for the Final Results in calculated for AMASA in this review, as a segment of a proceeding, we note that, the 2006–2007 Antidumping Duty well as the rates calculated in the 2004– unlike other types of information, such Administrative Review of Certain 2006 administrative review, are not as input costs or selling expenses, there Frozen Warmwater Shrimp from sufficiently high as to effectuate the are no independent sources from which Brazil,’’ dated July 3, 2008; see also purpose of the facts available rule (i.e., the Department can derive dumping 2004–2006 Administrative Review and we do not find that these rates are high margins. The only source for calculated Notice of Preliminary Results of enough to encourage participation in dumping margins is administrative Antidumping Duty Administrative future segments of this proceeding in determinations. Thus, in an Review; Partial Rescission and accordance with section 776(b) of the administrative review, if the Department Postponement of Final Results: Certain Act). Therefore, we have assigned a rate chooses as total AFA a calculated Softwood Lumber Products from of 67.80 percent as AFA, which is the dumping margin from the current or a Canada, 71 FR 33964, 33968 (June 12, highest margin determined for any prior segment of the proceeding, it is not 2006). respondent in any segment of the necessary to question the reliability of The Department also considers proceeding (i.e., the LTFV the margin for that time period. See, information reasonably at its disposal to investigation).5 We consider the 67.80- e.g., Anhydrous Sodium Metasilicate determine whether there are percent rate to be sufficiently high so as from France: Preliminary Results of circumstances that would render a to encourage participation in future Antidumping Duty Administrative margin inappropriate. Where segments of this proceeding. Review, 68 FR 44283, 44284 (July 28, circumstances indicate that the selected 2003), and Anhydrous Sodium margin is not appropriate as AFA, the Corroboration Metasilicate from France: Final Results Department may disregard the margin Section 776(c) of the Act requires that of Antidumping Duty Administrative and determine an appropriate margin. the Department corroborate, to the Review, 68 FR 60080 (October 21, 2003) See, e.g., Fresh Cut Flowers from extent practicable, secondary (unchanged in final). Therefore, given Mexico; Final Results of Antidumping information used as facts available from that we are using the highest margin Duty Administrative Review, 61 FR independent sources reasonably at its calculated for any respondent in any 6812, 6814 (February 22, 1996) (where disposal. The Department’s regulations segment of the proceeding, it is not the Department disregarded the highest provide that ‘‘corroborate’’ means that necessary to question the reliability of calculated margin as AFA because the the Department will satisfy itself that this rate. The Department has received margin was based on a company’s the secondary information to be used no information to date that warrants uncharacteristic business expense has probative value. See 19 CFR revisiting the issue of the reliability of resulting in an unusually high margin). 351.308(d); see also SAA. The rates the rate calculation itself. For the instant review, we examined However, because none of the alleged in the petition and information whether any information on the record following companies (i.e., Acarau Pesca from prior segments of the proceeding would discredit the selected rate as Distr. de Pescado Imp. E Exp. Ltda., constitute secondary information and, to reasonable facts available and have Aquacultura Fortaleza Aquafort SA, ITA the extent practicable, the Department found none. Because we did not find Fish - S.W.F. Importacao e Exportacao will examine the reliability and evidence indicating that the margin Ltda., Orion Pesca Ltda., Santa Lavinia selected as AFA in this review is not relevance of the information to be used. Comercio e Exportacao Ltda., Secom appropriate, we have determined that For purposes of the final results, we Aquicultura Comercio E Industria SA, the highest margin calculated for any did not use either of the two highest of and Tecmares Maricultura Ltda.) respondent in any segment of the the three petition rates (i.e., 320 percent submitted information to the proceeding (i.e., 67.80 percent) is and 349 percent) because these rates did Department or participated in a appropriate to use as AFA, and are not corroborate with independent previous segment of this proceeding, we assigning this rate to Acarau Pesca Distr. information reasonably at our disposal, do not have information specific to de Pescado Imp. E Exp. Ltda., i.e., the transaction-specific margins in these companies to consider in Aquacultura Fortaleza Aquafort SA, the current administrative review. We determining whether the 67.80-percent Compescal, ITA Fish - S.W.F. did not use the remaining petition rate margin is relevant to each of them or to Importacao e Exportacao Ltda., Orion (i.e., 32 percent) because it was lower the current POR. Therefore, to Pesca Ltda., Santa Lavinia Comercio e than the selected AFA rate, and as such determine whether the 67.80-percent Exportacao Ltda., Secom Aquicultura margin is relevant in this administrative 5 This margin was based on the rate we calculated Comercio E Industria SA, and Tecmares for respondent Norte Pesca S.A. in the preliminary review, we compared this rate to the Maricultura Ltda. in the final results of determination of the LTFV investigation, based on transaction-specific rates calculated for this review. information it submitted in its questionnaire AMASA in this review. With respect to responses. Although this company withdrew from Compescal, which participated in the Cost of Production the investigation after the preliminary determination, this rate was used as the AFA rate 2004–2006 administrative review, we As discussed in the Preliminary in the final determination. See LTFV Amended also compared the AFA rate to the Results, we conducted an investigation Final Determination and Order. transaction-specific rates calculated for to determine whether AMASA made

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home market sales of the foreign like Percent which are de minimis or determined product during the POR at prices below Manufacturer/Exporter Margin entirely on AFA. the cost of production (COP) within the We will instruct CBP to assess meaning of section 773(b)(1) of the Act. Comercio de Pescado antidumping duties on all appropriate We performed the cost test for these Aracatiense Ltda. entries covered by this review if any final results following the same (‘‘Compescal’’) ...... 67.80 importer-specific assessment rate methodology as in the Preliminary calculated in the final results of this Results, except as discussed in the Review-Specific Average Rate review is above de minimis (i.e., at or Decision Memo. Applicable to the Following Companies: above 0.50 percent). Pursuant to 19 CFR For AMASA, we found that 20 351.106(c)(2), we will instruct CBP to percent or more of comparison market Percent liquidate without regard to antidumping Manufacturer/Exporter Margin sales of a given product during the duties any entries for which the reporting period were at prices less than Aquatica Maricultura do Brasil assessment rate is de minimis (i.e., less the weighted-average COP for this Ltda./Aquafeed do Brasil Ltda. 48.60 than 0.50 percent). See 19 CFR period. Thus, we determined that these Central de Industrializacao e 351.106(c)(1). The Department intends below-cost sales were made in Distribuicao de Alimentos to issue assessment instructions to CBP ‘‘substantial quantities’’ within an Ltda. (‘‘CIDA’’) and Cia 15 days after the date of publication of extended period of time and at prices Exportadora de Produtos do these final results of review. which did not permit the recovery of all Mar (‘‘Produmar’’) ...... 48.60 The Department clarified its costs within a reasonable period of time Ipesca - Industria de Frio e ‘‘automatic assessment’’ regulation on Pesca S.A...... 48.60 May 6, 2003. See Antidumping and in the normal course of trade. See Intermarine Servicos Nauticos sections 773(b)(2)(B) - (D) of the Act. Ltda...... 48.60 Countervailing Duty Proceedings: Therefore, for purposes of these final JK Pesca Ltda...... 48.60 Assessment of Antidumping Duties, 68 results, we found that AMASA made Pesqueira Maguary Ltda...... 48.60 FR 23954 (May 6, 2003) (Assessment below-cost sales not in the ordinary Policy Notice). This clarification will course of trade during the POR. AFA Rate Applicable to the Following apply to entries of subject merchandise Consequently, we disregarded these Companies: during the POR produced by companies sales and used the remaining sales as included in these final results of review the basis for determining normal value Percent for which the reviewed companies did pursuant to section 773(b)(1) of the Act. Manufacturer/Exporter Margin not know that the merchandise they sold to the intermediary (e.g., a reseller, Analysis of Comments Received Acarau Pesca Distr. de Pescado trading company, or exporter) was All issues raised in the case briefs by Imp. e Exp. Ltda...... 67.80 destined for the United States. This parties to this administrative review, Aquacultura Fortaleza Aquafort clarification will also apply to POR and to which we have responded, are SA ...... 67.80 entries of subject merchandise produced listed in the Appendix to this notice and ITA Fish - S.W.F. Importacao e Exportacao Ltda...... 67.80 by companies for which we are addressed in the Decision Memo, which Orion Pesca Ltda...... 67.80 rescinding the review based on is adopted by this notice. Parties can Santa Lavinia Comercio e certifications of no shipments, because find a complete discussion of all issues Exportacao Ltda...... 67.80 these companies certified that they raised in this review and the Secom Aquicultura Comercio E made no POR shipments of subject corresponding recommendations in this Industria SA ...... 67.80 merchandise for which they had public memorandum, which is on file in Tecmares Maricultura Ltda...... 67.80 knowledge of U.S. destination. In such the Central Records Unit, room 1117, of instances, we will instruct CBP to the main Department building. Assessment liquidate unreviewed entries at the all- In addition, a complete version of the others rate established in the LTFV The Department shall determine, and Decision Memo can be accessed directly investigation if there is no rate for the CBP shall assess, antidumping duties on on the Web at http://ia.ita.doc.gov/ intermediary involved in the all appropriate entries. frn/. The paper copy and electronic transaction. See Assessment Policy version of the Decision Memo are Because AMASA did not report the Notice for a full discussion of this identical in content. actual entered value of its U.S. sales, we clarification. have calculated importer-specific per- Changes Since the Preliminary Results unit duty assessment rates by Cash Deposit Requirements Based on our analysis of the aggregating the total amount of The following deposit requirements comments received, we have made antidumping duties calculated for the will be effective for all shipments of certain changes in the margin examined sales and dividing this shrimp from Brazil entered, or calculations for AMASA. These changes amount by the total quantity of those withdrawn from warehouse, for are discussed in the relevant sections of sales. To determine whether the duty consumption on or after the publication the Decision Memo. assessment rates are de minimis, in date of the final results of this accordance with the requirement set Final Results of Review administrative review, as provided for forth in 19 CFR 351.106(c)(2), we have by section 751(a)(2)(C) of the Act: 1) the We determine that the following calculated importer-specific ad valorem cash deposit rates for the reviewed weighted-average margin percentages ratios based on the estimated entered companies will be the rates shown exist for the period February 1, 2006, value. For the responsive companies above, except if the rate is less than 0.50 through January 31, 2007: which were not selected for individual percent, de minimis within the meaning review, we have calculated an of 19 CFR 351.106(c)(1), the cash Percent Manufacturer/Exporter Margin assessment rate based on the weighted deposit will be zero; 2) for previously average of the cash deposit rates investigated companies not listed above, Amazonas Industrias calculated for the companies selected the cash deposit rate will continue to be Alimenticias S.A. (‘‘AMASA’’) .. 48.60 for individual review excluding any the company-specific rate published for

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the most recent period; 3) if the exporter 8. Adjustments to AMASA’s General Department selected for individual is not a firm covered in this review, or and Administrative Expense Ratio review are OceanInvest, S.A. the LTFV investigation, but the 9. Financial Expense Ratio (OceanInvest) and Promarisco, S.A. manufacturer is, the cash deposit rate [FR Doc. E8–15827 Filed 7–10–08; 8:45 am] (Promarisco). The respondents which will be the rate established for the most BILLING CODE 3510–DS–S were not selected for individual review recent period for the manufacturer of are listed in the ‘‘Final Results of the merchandise; and 4) the cash Review’’ section of this notice. deposit rate for all other manufacturers DEPARTMENT OF COMMERCE On March 6, 2008, the Department or exporters will continue to be 7.05 published in the Federal Register the percent, the all-others rate established International Trade Administration preliminary results of administrative in the LTFV investigation. These A–331–802 review of the antidumping duty order deposit requirements shall remain in on shrimp from Ecuador. See Certain effect until publication of the final Certain Frozen Warmwater Shrimp Frozen Warmwater Shrimp from results of the next administrative from Ecuador: Final Results and Ecuador: Preliminary Results and review. Partial Rescission of Antidumping Preliminary Partial Rescission of Duty Administrative Review Antidumping Duty Administrative Notification to Importers Review, 73 FR 12115 (March 6, 2008) AGENCY: This notice serves as a final reminder Import Administration, (Preliminary Results). We invited parties to importers of their responsibility, International Trade Administration, to comment on those preliminary under 19 CFR 351.402(f)(2), to file a Department of Commerce. results. In April 2008, we received case SUMMARY: On March 6, 2008, the certificate regarding the reimbursement briefs from the petitioner (the Ad Hoc Department of Commerce (the of antidumping duties prior to Shrimp Trade Action Committee), the Department) published the preliminary liquidation of the relevant entries Louisiana Shrimp Alliance (an results of the administrative review of during this review period. Failure to interested party in the proceeding), the antidumping duty order on certain OceanInvest, and Promarisco, and comply with this requirement could frozen warmwater shrimp (shrimp) from result in the Secretary’s presumption rebuttal briefs from the petitioner, Ecuador. This review covers 43 OceanInvest, and Promarisco. that reimbursement of antidumping producers/exporters of the subject duties occurred and the subsequent The Department has conducted this merchandise to the United States. The administrative review in accordance assessment of double antidumping period of review (POR) is February 1, duties. with section 751 of the Tariff Act of 2006, through January 31, 2007. We are 1930, as amended (the Act). Notification to Interested Parties rescinding the review with respect to Scope of the Order This notice serves as the only one company because this company reminder to parties subject to made no shipments of the subject The scope of this order includes administrative protective order (APO) of merchandise during the POR. certain frozen warmwater shrimp and Based on our analysis of the their responsibility concerning the prawns, whether wild–caught (ocean comments received, we have made disposition of proprietary information harvested) or farm–raised (produced by certain changes in the margin disclosed under APO in accordance aquaculture), head–on or head–off, calculations for Promarisco S.A., one of 2 with 19 CFR 351.305(a)(3). Timely shell–on or peeled, tail–on or tail–off, the producer/exporters selected for written notification of return/ deveined or not deveined, cooked or individual review. Therefore, the final destruction of APO materials or raw, or otherwise processed in frozen results for Promarisco S.A. differ from conversion to judicial protective order is form. the preliminary results. We have made hereby requested. Failure to comply The frozen warmwater shrimp and no changes to the margin calculation of with the regulations and the terms of an prawn products included in the scope of OceanInvest S.A., the other producer/ APO is a sanctionable violation. this order, regardless of definitions in We are issuing and publishing these exporter selected for individual review. the Harmonized Tariff Schedule of the final results of review in accordance The final weighted–average dumping United States (HTSUS), are products with sections 751(a)(1) and 777(i)(1) of margins for the reviewed firms are listed which are processed from warmwater the Act and 19 CFR 351.221(b)(5). below in the section entitled ‘‘Final shrimp and prawns through freezing Results of Review.’’ and which are sold in any count size. Dated: July 3, 2008. EFFECTIVE DATE: July 11, 2008. The products described above may be David M. Spooner, FOR FURTHER INFORMATION CONTACT: processed from any species of Assistant Secretary for Import David Goldberger or Gemal Brangman, warmwater shrimp and prawns. Administration. AD/CVD Operations, Office 2, Import Warmwater shrimp and prawns are Appendix – Issues in Decision Administration–Room 1117, generally classified in, but are not Memorandum International Trade Administration, limited to, the Penaeidae family. Some U.S. Department of Commerce, 14th examples of the farmed and wild– 1. Selection of Adverse Facts Available caught warmwater species include, but Rate Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) are not limited to, whiteleg shrimp 2. Consideration of Grade as a Matching (Penaeus vannemei), banana prawn Criterion 482–4136 or (202) 482–3773, respectively. (Penaeus merguiensis), fleshy prawn 3. Date of Sale for Sales to Kenkoh (Penaeus chinensis), giant river prawn 4. Sales to Employees SUPPLEMENTARY INFORMATION: (Macrobrachium rosenbergii), giant tiger 5. Calculation of Variable and Total prawn (Penaeus monodon), redspotted Costs of Manufacturing Background 6. Corrections Presented at Cost This review covers 43 producers/ administrative review. In the notice announcing the 1 Verification exporters. The respondents which the preliminary results, this figure was incorrectly reported as 45 companies. 7. Adjustments to Costs for Reconciling 1 This figure does not include those companies 2 ‘‘Tails’’ in this context means the tail fan, which Differences for which the Department is rescinding the includes the telson and the uropods.

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shrimp (Penaeus brasiliensis), southern Period of Review in the ordinary course of trade. brown shrimp (Penaeus subtilis), The POR is February 1, 2006, through Consequently, we disregarded these southern pink shrimp (Penaeus January 31, 2007. sales for each respondent and used the notialis), southern rough shrimp remaining sales as the basis for (Trachypenaeus curvirostris), southern Partial Rescission of Review determining normal value pursuant to white shrimp (Penaeus schmitti), blue As discussed in the Preliminary section 773(b)(1) of the Act. shrimp (Penaeus stylirostris), western Results, the Department received a no– Analysis of Comments Received white shrimp (Penaeus occidentalis), shipment response from Exportadora and Indian white prawn (Penaeus del Oceano Pacifico OCEANPAC All issues raised in the case briefs by indicus). (Oceanpac) for which there appeared to parties to this administrative review, Frozen shrimp and prawns that are be U.S. customs entries of subject and to which we have responded, are packed with marinade, spices or sauce merchandise. We requested data on the listed in the Appendix to this notice and are included in the scope of this order. relevant entries from U.S. Customs and addressed in the Decision Memo, which In addition, food preparations, which Border Protection (CBP) and determined is adopted by this notice. Parties can are not ‘‘prepared meals,’’ that contain that the entries were not reportable find a complete discussion of all issues more than 20 percent by weight of transactions for Oceanpac. See raised in this review and the shrimp or prawn are also included in Memorandum to the File entitled corresponding recommendations in this the scope of this order. public memorandum, which is on file in Excluded from the scope are: 1) ‘‘Reconciliation of Respondent No Shipment Statements to CBP Data,’’ the Central Records Unit, room 1117, of breaded shrimp and prawns (HTSUS the main Department building. subheading 1605.20.10.20); 2) shrimp dated February 6, 2008. Under these circumstances, we determine that In addition, a complete version of the and prawns generally classified in the Decision Memo can be accessed directly Pandalidae family and commonly Oceanpac satisfies the requirement under 19 CFR 351.213(d)(3) that it did on the Web at http://ia.ita.doc.gov/ referred to as coldwater shrimp, in any frn/. The paper copy and electronic state of processing; 3) fresh shrimp and not have ‘‘entries, exports, or sales of the subject merchandise,’’ and, version of the Decision Memo are prawns whether shell–on or peeled identical in content. (HTSUS subheadings 0306.23.00.20 and consistent with the Department’s 0306.23.00.40); 4) shrimp and prawns in practice, we are rescinding the review Changes Since the Preliminary Results with respect to Oceanpac. See, e.g., prepared meals (HTSUS subheading Based on our analysis of the 1605.20.05.10); 5) dried shrimp and Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission comments received, we have made prawns; 6) canned warmwater shrimp certain changes in the margin and prawns (HTSUS subheading of Antidumping Duty Administrative Review in Part, and Determination to calculations for Promarisco. These 1605.20.10.40); 7) certain dusted changes are discussed in the relevant shrimp; and 8) certain battered shrimp. Revoke in Part, 70 FR 67665, 67666 (November 8, 2005). sections of the Decision Memo. We have Dusted shrimp is a shrimp–based made no changes to the margin product: 1) that is produced from fresh Cost of Production calculations for OceanInvest. (or thawed–from-frozen) and peeled shrimp; 2) to which a ‘‘dusting’’ layer of As discussed in the Preliminary Final Results of Review rice or wheat flour of at least 95 percent Results, we conducted a review to determine whether OceanInvest and We determine that the following purity has been applied; 3) with the weighted–average margin percentages entire surface of the shrimp flesh Promarisco made third country sales of the foreign like product during the POR exist for the period February 1, 2006, thoroughly and evenly coated with the through January 31, 2007: flour; 4) with the non–shrimp content of at prices below their costs of production (COP) within the meaning of section the end product constituting between Percent four and 10 percent of the product’s 773(b)(1) of the Act. For Promarisco, we Manufacturer/Exporter Margin total weight after being dusted, but prior performed the cost test for these final to being frozen; and 5) that is subjected results following the same methodology OceanInvest, S.A...... 0.64 to IQF freezing immediately after as in the Preliminary Results, except as Promarisco, S.A...... 0.46 (de application of the dusting layer. discussed in the decision memorandum minimis) Battered shrimp is a shrimp–based accompanying this notice (the Decision product that, when dusted in Memo). For OceanInvest, we made no Review–Specific Average Rate accordance with the definition of changes to the Preliminary Results Applicable to the Following dusting above, is coated with a wet calculation. Companies:3 viscous layer containing egg and/or We found 20 percent or more of each respondent’s sales of a given product Percent milk, and par–fried. Manufacturer/Exporter Margin The products covered by this order during the reporting period were at are currently classified under the prices less than the weighted–average Agrol, S.A...... 0.64 following HTSUS subheadings: COP for this period. Thus, we Alquimia Marina S.A...... 0.64 0306.13.00.03, 0306.13.00.06, determined that these below–cost sales Comar Cia Ltda ...... 0.64 0306.13.00.09, 0306.13.00.12, were made in ‘‘substantial quantities’’ Dunci S.A...... 0.64 0306.13.00.15, 0306.13.00.18, within an extended period of time and El Rosario S.A...... 0.64 0306.13.00.21, 0306.13.00.24, at prices which did not permit the Empacadora Bilbo Bilbosa ...... 0.64 0306.13.00.27, 0306.13.00.40, recovery of all costs within a reasonable Empacadora Del Pacifico S.A. ... 0.64 1605.20.10.10, and 1605.20.10.30. These period of time in the normal course of Empacadora Dufer Cia. Ltda...... 0.64 HTSUS subheadings are provided for trade. See Sections 773(b)(2)(B) - (D) of convenience and for customs purposes the Act. 3 This rate is based on the weighted average of the margins calculated for those companies selected for only and are not dispositive, but rather Therefore, for purposes of these final individual review, excluding de minimis margins or the written description of the scope of results, we find that OceanInvest and margins based entirely on adverse facts available this order is dispositive. Promarisco made below–cost sales not (AFA).

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Percent ad valorem ratios based on the apply to entries of subject merchandise Manufacturer/Exporter Margin estimated entered value. during the POR produced by companies Regarding Promarisco, because it included in these final results of review Empacadora Gran Mar reported the entered value of all of its for which the reviewed companies did S.A.(Empagran) ...... 0.64 U.S. sales, we have calculated an not know that the merchandise they Empacadora Nacional ...... 0.64 importer–specific ad valorem duty Empacadora y Exportadora Calvi sold to the intermediary (e.g., a reseller, Cia. Ltda...... 0.64 assessment rate based on the ratio of the trading company, or exporter) was Emprede ...... 0.64 total amount of antidumping duties destined for the United States. This Estar C.A...... 0.64 calculated for the examined sales to the clarification will also apply to POR Exporklore, S.A...... 0.64 total entered value of the examined entries of subject merchandise produced Exportadora Del Oceano sales for that importer. We have by companies for which we are Oceanexa C.A...... 0.64 calculated a single importer–specific rescinding the review based on Gondi S.A...... 0.64 assessment rate for Promarisco, certifications of no shipments, because Industria Pesquera Santa consistent with our practice in the final these companies certified that they Priscila S.A...... 0.64 Inepexa S.A...... 0.64 results of the 2004 – 2006 made no POR shipments of subject Jorge Luis Benitez Lopez ...... 0.64 administrative review (see Certain merchandise for which they had Karpicorp S.A...... 0.64 Frozen Warmwater Shrimp from knowledge of U.S. destination. In such Luis Loaiza Alvarez ...... 0.64 Ecuador: Final Results of Antidumping instances, we will instruct CBP to Mardex Cia. Ltda...... 0.64 Duty Administrative Review, 72 FR liquidate unreviewed entries at the all– Mariscos del Ecuador c. l. 52070 (September 12, 2007)). See also others rate established in the LTFV Marecuador ...... 0.64 Ball Bearings and Parts Thereof from investigation if there is no rate for the Marines C.A...... 0.64 France, Germany, Italy, Japan, and intermediary involved in the Natural Select S.A...... 0.64 Singapore: Final Results of the Negocios Industriales ...... 0.64 transaction. See Assessment Policy Novapesca S.A...... 0.64 Antidumping Administrative Reviews, Notice for a full discussion of this Oceanmundo S.A...... 0.64 Rescission of Administrative Review in clarification. Oceanpro ...... 0.64 part, and Determination Not to Revoke Operadora y Procesadora de Order in Part, 68 FR 35623 (June 16, Discontinuation of Cash Deposit Productos Marinos S.A. 2003), and accompanying Issues and Requirements (Omarsa) ...... 0.64 Decision Memorandum at Comment 9B; On August 15, 2007, in accordance Oyerly S.A...... 0.64 and Notice of Final Results of with sections 129(b)(4) and 129(c)(1)(B) Pacfish S.A...... 0.64 Antidumping Duty Administrative of the Uruguay Round Agreements Act PCC Congelados & Frescos S.A...... 0.64 Review and Notice of Final Results of (URAA), the U.S. Trade Representative, Pescazul S.A...... 0.64 Antidumping Duty Changed after consulting with the Department Peslasa S.A...... 0.64 Circumstances Review: Certain and Congress, directed the Department Phillips Seafood ...... 0.64 Softwood Lumber Products From to implement its determination to Procesadora del Rio Proriosa Canada, 69 FR 75921 (December 20, revoke the antidumping duty order on S.A...... 0.64 2004), and accompanying Issues and certain frozen warmwater shrimp from Promarosa Productos ...... 0.64 Decision Memorandum at Comment 13. Ecuador. See Final Results of the Sociedad Nacional de Gala- For the responsive companies which Section 129 Determination of Certain pagos C.A. (SONGA) ...... 0.64 were not selected for individual review, Tolyp S.A...... 0.64 Frozen Warmwater Shrimp from Transcity S.A...... 0.64 we have calculated an assessment rate Ecuador, 72 FR 48257 (August 23, based on the weighted average of the 2007). Accordingly, the antidumping margin rates calculated for the Assessment duty order on certain frozen warmwater companies selected for individual shrimp from Ecuador was revoked The Department shall determine, and review excluding any which are de effective August 15, 2007. As a result, CBP shall assess, antidumping duties on minimis or determined entirely on AFA. we have instructed CBP to discontinue all appropriate entries. We will instruct CBP to assess collection of cash deposits of Regarding OceanInvest, for those sales antidumping duties on all appropriate antidumping duties on entries of the where it reported the entered value of entries covered by this review if any subject merchandise. its U.S. sales, we have calculated importer–specific assessment rate importer–specific ad valorem duty calculated in the final results of this Notification to Importers assessment rates based on the ratio of review is above de minimis (i.e., at or This notice serves as a final reminder the total amount of antidumping duties above 0.50 percent). Pursuant to 19 CFR to importers of their responsibility, calculated for the examined sales to the 351.106(c)(2), we will instruct CBP to under 19 CFR 351.402(f)(2), to file a total entered value of the examined liquidate without regard to antidumping certificate regarding the reimbursement sales for that importer. For those sales duties any entries for which the of antidumping duties prior to where OceanInvest did not report the assessment rate is de minimis (i.e., less liquidation of the relevant entries entered value of its U.S. sales, we have than 0.50 percent). See 19 CFR during this review period. Failure to calculated customer–specific per–unit 351.106(c)(1). The Department intends comply with this requirement could duty assessment rates by aggregating the to issue assessment instructions to CBP result in the Secretary’s presumption total amount of antidumping duties 15 days after the date of publication of that reimbursement of antidumping calculated for the examined sales and these final results of review. duties occurred and the subsequent dividing this amount by the total The Department clarified its assessment of double antidumping quantity of those sales. To determine ‘‘automatic assessment’’ regulation on duties. whether the duty assessment rates are May 6, 2003. See Antidumping and de minimis, in accordance with the Countervailing Duty Proceedings: Notification to Interested Parties requirement set forth in 19 CFR Assessment of Antidumping Duties, 68 This notice serves as the only 351.106(c)(2), we have calculated FR 23954 (May 6, 2003) (Assessment reminder to parties subject to importer–specific or customer–specific Policy Notice). This clarification will administrative protective order (APO) of

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their responsibility concerning the Comment 4: Use of Entry Date for Administration, U.S. Department of disposition of proprietary information Determining Promarisco’s POR Sales Commerce, 14th Street and Constitution disclosed under APO in accordance OceanInvest Avenue, NW., Washington, DC 20230, with 19 CFR 351.305(a)(3). Timely telephone: (202) 482–4697. written notification of return/ Comment 5: Cost Reporting for Certain destruction of APO materials or Value–Added Products Background conversion to judicial protective order is Comment 6: Acceptance of Billing Each year during the anniversary hereby requested. Failure to comply Adjustment for Certain Third–Country month of the publication of an with the regulations and the terms of an Sales APO is a sanctionable violation. antidumping or countervailing duty order, finding, or suspension of We are issuing and publishing these Comment 7: Bonus Payment Adjustment final results of review in accordance Applicable to U.S. Sales investigation, an interested party, as defined in section 77 1(9) of the Tariff with sections 751(a)(1) and 777(i)(1) of [FR Doc. E8–15830 Filed 7–10–08; 8:45 am] Act of 1930, as amended (the Act), may the Act. BILLING CODE 3510–DS–S Dated: July 3, 2008. request, in accordance with section 35 David M. Spooner, 1.213 (2007) of the Department of Commerce (the Department) Assistant Secretary for Import DEPARTMENT OF COMMERCE Administration. Regulations, that the Department International Trade Administration conduct an administrative review of that Appendix – Issues in Decision antidumping or countervailing duty Memorandum Antidumping or Countervailing Duty order, finding, or suspended General Comments: Order, Finding, or Suspended investigation. Investigation; Opportunity To Request Comment 1: ‘‘Zeroing’’ Methodology in Administrative Review Opportunity to Request a Review: Not Administrative Reviews later than the last day of July 2008 1, Comment 2: Selection of Mandatory AGENCY: Import Administration, interested parties may request Respondents International Trade Administration, administrative review of the following Company–Specific Comments: Department of Commerce. orders, findings, or suspended FOR FURTHER INFORMATION CONTACT: investigations, with anniversary dates in Promarisco Sheila E. Forbes, Office of AD/CVD July for the following periods: Comment 3: Adjustment to Promarisco’s Operations, Customs Unit, Import Net Financial Expense Ratio Administration, International Trade

Period

Antidumping Duty Proceedings The People’s Republic of China: Persulfates, A–570–847 ...... 7/1/07–6/30/08 Carbon Steel Butt-Weld Pipe Fittings, A–570–814 ...... 7/1/07–6/30/08 Saccharin, A–570–878 ...... 7/1/07–6/30/08 Finland: Carboxymethylcellulose, A–405–803 ...... 7/1/07–6/30/08 Germany: Stainless Steel Sheet and Strip in Coils, A–428–825 ...... 7/1/07–6/30/08 India: Polyethylene Terephthalate (PET) Film, A–533–824 ...... 7/1/07–6/30/08 Iran: In-Shell Pistachios, A–507–502 ...... 7/1/07–6/30/08 Italy: Certain Pasta, A–475–818 ...... 7/1/07–6/30/08 Stainless Steel Sheet and Strip in Coils, A–475–824 ...... 7/1/07–6/30/08 Japan: Clad Steel Plate, A–588–838 ...... 7/1/07–6/30/08 Stainless Steel Sheet and Strip in Coils, A–588845 ...... 7/1/07–6/30/08 Polyvinyl Alcohol, A–588–861 ...... 7/1/07–6/30/08 Mexico: Stainless Steel Sheet and Strip in Coils, A–201–822 ...... 7/1/07–6/30/08 Carboxymethylcellulose, A–201–834 ...... 7/1/07–6/30/08 Netherlands: Carboxymethylcellulose, A–421–811 ...... 7/1/07–6/30/08 Russia: Solid Urea, A–821–801 ...... 7/1/07–6/30/08 Ferrovanadium and Nitrided Vanadium, A–821–807 ...... 7/1/07–6/30/08 South Korea: Stainless Steel Sheet and Strip in Coils, A–580–834 ...... 7/1/07–6/30/08 Sweden: Carboxymethylcellulose, A–401–808 ...... 7/1/07–6/30/08 Taiwan: Polyethylene Terephthalate (PET) Film, A–583–837 ...... 7/1/07–6/30/08 Stainless Steel Sheet and Strip in Coils, A–583–831 ...... 7/1/07–6/30/08 Thailand: Carbon Steel butt-Weld Pipe Fittings, A–549–807 ...... 7/1/07–6/30/08 Turkey: Certain Pasta, A–489–805 ...... 7/1/07–6/30/08 Ukraine: Solid Urea, A–823–801 ...... 7/1/07–6/30/08 Countervailing Duty Proceedings India: Polyethylene Terephthalate (PET) Film, C–533–825 ...... 1/1/07–12/31/07

1 Or the next business day, if the deadline falls on a weekend, federal holiday or any other day when the Department is closed.

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Period

Italy: Certain Pasta, C–475–819 ...... 1/1/07–12/31/07 Turkey: Certain Pasta, C–489–806 ...... 1/1/07–12/31/07 Suspension Agreements Russia: Certain Hot-Rolled Carbon Steel Flat Products, A–821–809 ...... 7/1/07–6/30/08

In accordance with section 351.213(b) public should be aware of this day of July 2008, a request for review of of the regulations, an interested party as clarification in determining whether to entries covered by an order, finding, or defined by section 771(9) of the Act may request an administrative review of suspended investigation listed in this request in writing that the Secretary merchandise subject to antidumping notice and for the period identified conduct an administrative review. For findings and orders. See also the Import above, the Department will instruct the both antidumping and countervailing Administration Web site at http:// U.S. Customs and Border Protection to duty reviews, the interested party must ia.ita.doc.gov. assess antidumping or countervailing specify the individual producers or duties on those entries at a rate equal to exporters covered by an antidumping Respondent Selection the cash deposit of (or bond for) finding or an antidumping or In the event the Department limits the estimated antidumping or countervailing duty order or suspension number of respondents for individual countervailing duties required on those agreement for which it is requesting a examination for administrative reviews entries at the time of entry, or review, and the requesting party must initiated pursuant to requests made for withdrawal from warehouse, for state why it desires the Secretary to the orders identified above, the consumption and to continue to collect review those particular producers or Department intends to select the cash deposit previously ordered. exporters.2 If the interested party respondents based on U.S. Customs and This notice is not required by statute intends for the Secretary to review sales Border Protection (CBP) data for U.S. but is published as a service to the of merchandise by an exporter (or a imports during the POR. We intend to international trading community. producer if that producer also exports release the CBP data under Dated: July 1, 2008. merchandise from other suppliers) Administrative Protective Order (APO) Stephen J. Claeys, which were produced in more than one to all parties having an APO within five Deputy Assistant Secretary for Import country of origin and each country of days of publication of the initiation Administration. origin is subject to a separate order, then notice and to make our decision [FR Doc. E8–15511 Filed 7–10–08; 8:45 am] the interested party must state regarding respondent selection within BILLING CODE 3510–DS–M specifically, on an order-by-order basis, 20 days of publication of the initiation which exporter(s) the request is Federal Register notice. Therefore, we intended to cover. encourage all parties interested in DEPARTMENT OF COMMERCE Please note that, for any party the commenting on respondent selection to Department was unable to locate in submit their APO applications on the International Trade Administration prior segments, the Department will not date of publication of the initiation accept a request for an administrative notice, or as soon thereafter as possible. Howard Hughes Medical Institute; review of that party absent new The Department invites comments Notice of Decision on Application for information as to the party’s location. regarding the CBP data and respondent Duty-Free Entry of Electron Moreover, if the interested party who selection within 10 calendar days of Microscopes files a request for review is unable to publication of the initiation Federal locate the producer or exporter for This is a decision consolidated Register notice. pursuant to Section 6(c) of the which it requested the review, the Six copies of the request should be interested party must provide an Educational, Scientific, and Cultural submitted to the Assistant Secretary for Materials Importation Act of 1966 (Pub. explanation of the attempts it made to Import Administration, International locate the producer or exporter at the L. 89–651, as amended by Public Law Trade Administration, Room 1870, U.S. 106–36;80 Stat. 897; 15 CFR part 301). same time it files its request for review, Department of Commerce, 14th Street & in order for the Secretary to determine Related records can be viewed between Constitution Avenue, NW., Washington, 8:30 a.m. and 5 p.m. in Room 2104, U.S. if the interested party’s attempts were DC 20230. The Department also asks reasonable, pursuant to 19 CFR Department of Commerce, 14th and parties to serve a copy of their requests Constitution Avenue, NW., Washington, 351.303(f)(3)(ii). to the Office of Antidumping/ As explained in Antidumping and DC. Countervailing Operations, Attention: Countervailing Duty Proceedings: Docket Number: 08–026. Applicant: Sheila Forbes, in room 3065 of the main Assessment of Antidumping Duties, 68 Howard Hughes Medical Institute, Commerce Building. Further, in FR 23954 (May 6, 2003), the Department Chevy Chase, MD 20815. Instrument: accordance with section 351.303(f)(l)(i) has clarified its practice with respect to Electron Microscope, Model Tecnai of the regulations, a copy of each the collection of final antidumping Spirit T12BT. Manufacturer: FEI request must be served on every party duties on imports of merchandise where Company, Czech Republic. Intended on the Department’s service list. intermediate firms are involved. The Use: See notice at 73 FR 34704, June 18, The Department will publish in the 2008. 2 If the review request involves a non-market Federal Register a notice of ‘‘Initiation Comments: None received. Decision: economy and the parties subject to the review of Administrative Review of Approved. No instrument of equivalent request do not qualify for separate rates, all other Antidumping or Countervailing Duty scientific value to the foreign exporters of subject merchandise from the non- Order, Finding, or Suspended instrument, for such purposes as these market economy country who do not have a separate rate will be covered by the review as part Investigation’’ for requests received by instruments are intended to be used, of the single entity of which the named firms are the last day of July 2008. If the was being manufactured in the United a part. Department does not receive, by the last States at the time the instruments were

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ordered. Reasons: The foreign governing the taking, importing, and ACTION: Notice announcing the instrument is an electron microscope exporting of endangered and threatened preparation of an environmental impact and is intended for research or scientific species (50 CFR parts 222–226). statement (EIS). educational uses requiring an electron File No. 13306: Ms. Holloway-Adkins microscope. We know of no electron SUMMARY: NMFS, in cooperation with will capture up to 60 green and 5 the Gulf of Mexico Fishery Management microscope, or any other instrument loggerhead sea turtles annually. The suited to these purposes, which was Council (Council), is preparing an EIS in turtles will be weighed, measured, accordance with the National being manufactured in the United States flipper tagged, Passive Integrated at the time of order of each instrument. Environmental Policy Act (NEPA) for Transponder (PIT) tagged, and blood Amendment 30B to the Fishery Dated: July 8, 2008. and tissue sampled. A subset of green Management Plan (FMP) for the Reef Faye Robinson, turtles will be lavaged. The applicant Fish Resources of the Gulf of Mexico. Director, Statutory Import Programs Staff, will also conduct visual transect This notice is intended to inform the Import Administration. surveys. This research will characterize public of the reconsideration from [FR Doc. E8–15832 Filed 7–10–08; 8:45 am] the turtle aggregation using the preparing an environmental assessment BILLING CODE 3510–DS–P nearshore reef system of Brevard (EA) to preparing a draft EIS for county, Florida as well as monitor the Amendment 30B. impact of local beach nourishment FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE activities on the sea turtles and their habitat. Peter Hood; phone: (727) 824–5305; fax: National Oceanic and Atmospheric (727) 824–5308; email: File No. 13307: Dr. Hart will capture Administration [email protected]. up to 30 green, 20 hawksbill, and 20 SUPPLEMENTARY INFORMATION: RIN 0648–XI99 loggerhead sea turtles annually. Turtles On March will be weighed, measured, flipper 5, 2007 (72 FR 9734), NMFS and the Endangered Species; File Nos. 13306 tagged, PIT tagged, blood sampled, Council published a Notice of Intent in and 13307 tissue sampled, fecal sampled, and the Federal Register to prepare a draft lavaged. A subset of turtles will be EIS and to announce scoping meetings AGENCY: National Marine Fisheries regarding the actions proposed in Service (NMFS), National Oceanic and tagged with a satellite tag or acoustic transmitter or a combination of both. Amendment 30. Amendment 30 was Atmospheric Administration (NOAA), being developed to describe and analyze Commerce. This research will address fine-scale temporal and spatial patterns of sea management alternatives to manage ACTION: Issuance of permits. turtle habitat use, ecology, and genetic fishing mortality and to establish status criteria for greater amberjack, gray SUMMARY: Notice is hereby given that origin within the Dry Tortugas National triggerfish, gag, and red grouper in Karen Holloway-Adkins, East Coast Park. accordance with the Magnuson-Stevens Biologists, Inc., P.O. Box 33715, Issuance of these permits, as required Fishery Conservation and Management Indialantic, FL, 32903 (File No. 13306) by the ESA, was based on a finding that Act. Recent stock assessments and Kristen Hart, 3205 College Ave., such permit (1) was applied for in good completed under the Southeast Data, Davie, FL, 33314 (File No. 13307) have faith, (2) will not operate to the Assessment, and Review program been issued permits to take green disadvantage of such endangered or indicated that management changes (Chelonia mydas), loggerhead (Caretta threatened species, and (3) is consistent were warranted for these stocks. caretta), and hawksbill (Eretmochelys with the purposes and policies set forth Based on comments received during imbricata) sea turtles for purposes of in section 2 of the ESA. the scoping process and further analyses scientific research. Dated: July 7, 2008. needed for the gag and red grouper stock ADDRESSES: The permits and related assessments, Amendment 30 was split documents are available for review P. Michael Payne, Chief,Permits, Conservation and Education into Amendments 30A and 30B. This upon written request or by appointment allowed proposed actions to revise the in the following office(s): Division, Office of Protected Resources, National Marine Fisheries Service. greater amberjack rebuilding plan, end Permits, Conservation and Education overfishing of gray triggerfish, and Division, Office of Protected Resources, [FR Doc. E8–15835 Filed 7–10–08; 8:45 am] BILLING CODE 3510–22–S rebuild the gray triggerfish stock to NMFS, 1315 East-West Highway, Room proceed in Amendment 30A while the 13705, Silver Spring, MD 20910; phone status of the gag and red grouper stocks (301)713–2289; fax (301)427–2521; and were resolved. A supplemental EIS was Southeast Region, NMFS, 263 13th DEPARTMENT OF COMMERCE prepared for Amendment 30A, in part, Ave South, St. Petersburg, FL 33701; National Oceanic and Atmospheric due to significant increases in the stock phone (727)824–5312; fax (727)824– Administration biomass of greater amberjack and gray 5309. triggerfish as the two species recover FOR FURTHER INFORMATION CONTACT: Kate RIN 0648–AV80 from their respective overfished states. Swails or Patrick Opay, (301)713–2289. A Notice of Availability for the final SUPPLEMENTARY INFORMATION: On April Fisheries of the Caribbean, Gulf of supplemental EIS analyzing impacts on 2, 2008, notice was published in the Mexico, and South Atlantic; Reef Fish the human environment for Amendment Federal Register (73 FR 17956) that a Fishery of the Gulf of Mexico; 30A was published in the Federal request for scientific research permits to Environmental Impact Statement for Register on April 18, 2008 (73 FR take sea turtles had been submitted by Amendment 30B 21124). the above-named individuals. The Actions to be described and analyzed requested permit has been issued under AGENCY: National Marine Fisheries in Amendment 30B include: setting gag the authority of the Endangered Species Service (NMFS), National Oceanic and thresholds and benchmarks; Act of 1973, as amended (ESA; 16 Atmospheric Administration (NOAA), establishing gag and red grouper total U.S.C. 1531 et seq.) and the regulations Commerce. allowable catch (TAC), interim

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allocations, and accountability 13705, Silver Spring, MD 20910; phone DEPARTMENT OF THE INTERIOR measures; ending overfishing of gag; (301)713–2289; fax (301)427–2521; Fish and Wildlife Service managing gag and red grouper Northwest Region, NMFS, 7600 Sand commercial and recreational harvests Point Way NE, BIN C15700, Bldg. 1, DEPARTMENT OF COMMERCE consistent with TAC; reducing grouper Seattle, WA 98115–0700; phone discard mortality; establishing seasonal- (206)526–6150; fax (206)526–6426; and area closures; and requiring compliance National Oceanic and Atmospheric with Federal fishery management Alaska Region, NMFS, P.O. Box Administration 21668, Juneau, AK 99802–1668; phone regulations by federally permitted reef [FWS–R1–R–2008–N0040; 1265–0000– fish vessels when fishing in state waters. (907)586–7221; fax (907)586–7249. 10137–S3] Based on further analysis of the FOR FURTHER INFORMATION CONTACT: ¯ ¯ environmental impacts of actions Amy Sloan or Carrie Hubard, (301)713– Papahanaumokuakea Marine National proposed in Amendment 30B, NMFS Monument, Hawaii 2289. and the Council did not anticipate any AGENCIES: significant impacts on the human SUPPLEMENTARY INFORMATION: On June 6, U.S. Fish and Wildlife environment and published a notice on 2008, notice was published in the Service (FWS), Interior; National Oceanic and Atmospheric March 7, 2008 (73 FR 12393) Federal Register (73 FR 32307) that an Administration (NOAA), Commerce. announcing an EA would be the amendment of Permit No. 716–1705–00 appropriate NEPA document. had been requested by the above-named ACTION: Notice of extension of the public Subsequent to this evaluation, the individual. The requested amendment comment period for the draft monument management plan and environmental Council wished to examine a more has been granted under the authority of assessment. extensive seasonal area closure to the Marine Mammal Protection Act of protect spawning aggregations of gag 1972, as amended (16 U.S.C. 1361 et SUMMARY: This notice advises the public and other reef fish species. As a result seq.), the regulations governing the that the public comment period has of this and other changes, NMFS and taking and importing of marine been extended for the NOAA, FWS, and the Council determined actions in mammals (50 CFR part 216), the the State of Hawaii’s Department of Amendment 30B could be significant to Endangered Species Act of 1973, as Land and Natural Resources (DLNR), the human environment and determined amended (ESA; 16 U.S.C. 1531 et seq.), and Office of Hawaiian Affairs’ Draft an EIS was required to further evaluate Monument Management Plan (MMP) the impacts of Amendment 30B. and the regulations governing the taking, importing, and exporting of and associated environmental Authority: 16 U.S.C. 1801 et seq. endangered and threatened species (50 assessment (EA) for the Dated: July 7, 2008. CFR 222–226). Papaha¯naumokua¯kea Marine National Monument (Monument). See Alan D. Risenhoover, The amendment authorizes Dr. SUPPLEMENTARY INFORMATION for details. Director, Office of Sustainable Fisheries, Sharpe to use a mini-helicopter to film DATES: To ensure consideration, we National Marine Fisheries Service. lunge feeding humpback whales must receive written comments by July [FR Doc. E8–15802 Filed 7–10–08; 8:45 am] (Megaptera novaeangliae) in Southeast 23, 2008. BILLING CODE 3510–22–S Alaska in July and August, 2008. ADDRESSES: The Draft MMP and EA are In compliance with the National available on the FWS and NOAA Web DEPARTMENT OF COMMERCE Environmental Policy Act of 1969 (42 sites http://www.fws.gov/pacificislands U.S.C. 4321 et seq.), a supplemental and http://hawaiireef.noaa.gov/, as well National Oceanic and Atmospheric environmental assessment was prepared as at local libraries within the State of Administration analyzing the effects of the permitted Hawaii. You may provide written activities. After a Finding of No comments on the Draft MMP and EA by RIN 0648–XI31 Significant Impact, the determination any of the following methods: was made that it was not necessary to U.S. Mail: Papaha¯naumokua¯kea Marine Mammals; File No. 716–1705 prepare an environmental impact Marine National Monument, Attn: AGENCY: National Marine Fisheries statement. Susan White, FWS Superintendent, Box Service (NMFS), National Oceanic and Issuance of this permit, as required by 50167, Honolulu, HI 96850–5000 (must be postmarked by July 23); Atmospheric Administration (NOAA), the ESA, was based on a finding that Commerce. Hand-delivery: Papaha¯naumokua¯kea such permit: (1) was applied for in good Marine National Monument at 300 Ala ACTION: Notice; issuance of permit faith; (2) will not operate to the Moana Blvd., Room 5–231 in Honolulu; amendment. disadvantage of such endangered or species; and (3) is consistent with the SUMMARY: Notice is hereby given that E-mail: purposes and policies set forth in [email protected]. Fred Sharpe, Ph.D., Alaska Whale section 2 of the ESA. Foundation, 4739 University Way NE, FOR FURTHER INFORMATION CONTACT: #1239, Seattle Washington 98105 has Dated: July 7, 2008. Susan White, FWS Superintendent, been issued an amendment to scientific P. Michael Payne, phone (808) 792–9480. research Permit No. 716–1705–00. Chief, Permits, Conservation and Education SUPPLEMENTARY INFORMATION: The 75- ADDRESSES: The amendment and related Division, Office of Protected Resources, day federal public comment period for documents are available for review National Marine Fisheries Service. the Draft Papaha¯naumokua¯kea Marine upon written request or by appointment [FR Doc. E8–15834 Filed 7–10–08; 8:45 am] National Monument Management Plan in the following offices: BILLING CODE 3510–22–S (73 FR 21975, April 23, 2008) has been Permits, Conservation and Education extended for an additional 15 days, Division, Office of Protected Resources, until July 23, 2008. The draft plan was NMFS, 1315 East-West Highway, Room released by the National Oceanic and

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Atmospheric Administration, the U.S. not be construed to represent any Attention: Inland Waterways Users Fish and Wildlife Service, the State of Agency policy or determination. After Board Nominations Committee, 108 Hawaii’s Department of Land and consideration of comments received on Army Pentagon, Washington, DC Natural Resources, and the Office of the draft report, a revised version along 20310–0108. Hawaiian Affairs on April 22. During a with the comments received will be FOR FURTHER INFORMATION CONTACT: series of ten public meetings in June, published on the CCSP web site. Office of the Assistant Secretary of the members of the public requested an DATES: Comments must be received by Army (Civil Works), (703) 697–8986. extension of the comment period due to August 25, 2008. SUPPLEMENTARY INFORMATION: The the size of the draft plan. ADDRESSES: The draft Synthesis and selection, service, and appointment of The 90-day federal comment period Assessment Product: 2.3 is posted on Board members are covered by will end on July 23, 2008. Although the the CCSP Web site at: provisions of Section 302 of Public Law official State comment period occurs http://www.climatescience.gov/Library/ 99–662. The substance of those from June 8 through July 8 in sap/sap2–3/default.php provisions is as follows: accordance with State regulations from Detailed instructions for making a. Selection. Members are to be the Office of Environmental Quality comments on this draft report are selected from the spectrum of Control, the State will review, consider provided on the SAP 2.3 webpage. commercial carriers and shippers using and address public comments received Comments must be prepared in the inland and intracoastal waterways, during the entire comment period. All accordance to these instructions and to represent geographical regions, and to substantive comments received during must be submitted to: be representative of waterborne the public comment period will be 2.3–[email protected] commerce as determined by commodity addressed in a Summary of Public FOR FURTHER INFORMATION CONTACT: Dr. ton-miles statistics. Comments section of the final Fabien Laurier, Climate Change Science b. Service. The Board is required to Monument Management Plan, which Program Office, 1717 Pennsylvania meet at least semi-annually to develop will compose Volume V of the plan. Avenue NW, Suite 250, Washington, DC and make recommendations to the Dated: July 8, 2008. 20006, Telephone: (202) 419–3481. Secretary of the Army on waterways Daniel J. Basta, SUPPLEMENTARY INFORMATION: The CCSP construction and rehabilitation Director, Office of National Marine was established by the President in 2002 priorities and spending levels for Sanctuaries, National Oceanic and to coordinate and integrate scientific commercial navigation improvements, Atmospheric Administration. research on global and climate changes and report its recommendations Dated: July 8, 2008. sponsored by 13 participating annually to the Secretary and Congress. Gary D. Frazer, departments and agencies of the U.S. c. Appointment. The operation of the Director, United States Fish and Wildlife Government. The CCSP is charged with Board and appointment of its members Service. preparing information resources that are subject to the Federal Advisory [FR Doc. E8–15847 Filed 7–10–08; 8:45 am] promote climate-related discussions and Committee Act (Pub. L. 92–463, as amended) and departmental BILLING CODE 4310–55–P decisions, including scientific synthesis and assessment analyses that support implementing regulations. Members evaluation of important policy issues. serve without compensation but their expenses due to Board activities are DEPARTMENT OF COMMERCE Dated: July 1, 2008. reimbursable. The considerations National Oceanic and Atmospheric William J. Brennan, specified in Section 302 for the Administration Assistant Secretary of Commerce for Oceans selection of the Board members, and and Atmosphere, Director, Climate Change certain terms used therein, have been Science Program. RIN 0648–XI82 interpreted, supplemented, or otherwise [FR Doc. E8–15800 Filed 7–10–08; 8:45 am] clarified as follows: U.S. Climate Change Science Program BILLING CODE 3510–22–S Synthesis and Assessment Product (1) Carriers and Shippers. The law Draft Report 2.3 ‘‘Aerosol properties uses the terms ‘‘primary users and and their impacts on climate’’ shippers.’’ Primary users have been DEPARTMENT OF DEFENSE interpreted to mean the providers of AGENCY: National Oceanic and transportation services on inland Department of the Army Atmospheric Administration (NOAA), waterways such as barge or towboat Department of Commerce. Inland Waterways Users Board; operators. Shippers have been ACTION: Notice of availability and Request for Nominations interpreted to mean the purchasers of request for public comments. such services for the movement of AGENCY: Department of the Army, DOD. commodities they own or control. SUMMARY: The National Oceanic and ACTION: Notice. Individuals are appointed to the Board, Atmospheric Administration publishes but they must be either a carrier or this notice to announce a 45-day public SUMMARY: Section 302 of Public Law 99– shipper, or represent a firm that is a comment period for the draft report 662 established the Inland Waterways carrier or shipper. For that purpose a titled, U.S. Climate Change Science Users Board. The Board is an trade or regional association is neither a Program Synthesis and Assessment independent Federal advisory shipper nor primary user. Product 2.3 ‘‘Aerosol properties and committee. The Secretary of the Army (2) Geographical Representation. The their impacts on climate.’’This draft appoints its 11 members. This notice is law specifies ‘‘various’’ regions. For the report is being released solely for the to solicit nominations for six (6) purpose of selecting Board members, the purpose of pre-dissemination peer appointments or reappointments to two- waterways subjected to fuel taxes and review under applicable information year terms that will begin after March 1, described in Public Law 95–502, as quality guidelines. This document has 2009. amended, have been aggregated into six not been formally disseminated by ADDRESSES: Office of the Assistant regions. They are (1) The Upper NOAA. It does not represent and should Secretary of the Army (Civil Works), Mississippi River and its tributaries

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above the mouth of the Ohio; (2) the Nominations received in response to The Department of Education is Lower Mississippi River and its Federal Register notice published on especially interested in public comment tributaries below the mouth of the Ohio February 17, 2006 (71 FR 8568), notice addressing the following issues: (1) Is and above Baton Rouge; (3) the Ohio published on July 7, 2006 (71 FR 38629) this collection necessary to the proper River and its tributaries; (4) the Gulf and notice published on February 16, functions of the Department; (2) will Intracoastal Waterway in Louisiana and 2007 (72 FR 7620) have been retained this information be processed and used Texas; (5) the Gulf Intracoastal for consideration. Renomination is not in a timely manner; (3) is the estimate Waterway east of New Orleans and required but may be desirable to of burden accurate; (4) how might the associated fuel-taxed waterways indicate continued interest and provide Department enhance the quality, utility, including the Tennessee-Tombigbee, updated information. and clarity of the information to be plus the Atlantic Intracoastal Waterway e. Deadline for Nominations. All collected; and (5) how might the below Norfolk; and (6) the Columbia- nominations must be received at the Department minimize the burden of this Snake Rivers System and Upper address shown above no later than collection on the respondents, including Willamette. The intent is that each September 15, 2008. through the use of information region shall be represented by at least Brenda S. Bowen, technology. one Board member, with that Army Federal Register Liaison Officer. Dated: July 1, 2008. representation determined by the [FR Doc. E8–15774 Filed 7–10–08; 8:45 am] Angela C. Arrington, regional concentration of the BILLING CODE 3710–92–P IC Clearance Official, Regulatory Information individual’s traffic on the waterways. Management Services, Office of Management. (3) Commodity Representation. Waterway commerce has been Office of Elementary and Secondary DEPARTMENT OF EDUCATION aggregated into six commodity Education categories based on ‘‘inland’’ ton-miles Notice of Proposed Information Type of Review: New. shown in Waterborne Commerce of the Collection Requests Title: Leveraging Educational United States. These categories are (1) Technology to Keep America Farm and Food Products; (2) Coal and AGENCY: Department of Education. Competitive: National Teacher Coke; (3) Petroleum, Crude and SUMMARY: The IC Clearance Official, Technology Study. Products; (4) Minerals, Ores, and Regulatory Information Management Frequency: On Occasion. Primary Metals and Mineral Products; Services, Office of Management, invites Affected Public: Individuals or (5) Chemicals and Allied Products; and comments on the proposed information household. (6) All Other. A consideration in the collection requests as required by the Reporting and Recordkeeping Hour selection of Board members will be that Paperwork Reduction Act of 1995. Burden: the commodities carried or shipped by DATES: Interested persons are invited to Responses: 2,300. those individuals or their firms will be submit comments on or before Burden Hours: 750. reasonably representative of the above September 9, 2008. Abstract: The purpose of this study is commodity categories. SUPPLEMENTARY INFORMATION: Section to investigate the technology d. Nomination. Reflecting preceding 3506 of the Paperwork Reduction Act of experiences included in pre-service selection criteria, the current 1995 (44 U.S.C. Chapter 35) requires teacher preparation programs, as well as representation by the six (6) Board that the Office of Management and how teachers use technology in the members whose terms will expire is one Budget (OMB) provide interested classroom. A three-phase grounded member each representing regions 3 and Federal agencies and the public an early theory research design employs (1) 6, and two members representing opportunity to comment on information educational technology faculty and regions 1 and 2. Also, three of these collection requests. OMB may amend or general induction teacher surveys, (2) Board members represent carriers, one waive the requirement for public educational technology faculty and represents a shipper and two represents consultation to the extent that public accomplished technology using teacher a carrier/shipper. participation in the approval process phone interviews, and (3) case studies Three of the six members whose terms would defeat the purpose of the of teacher education programs and will expire are eligible for information collection, violate State or accomplished technology-using reappointment. Nominations to replace Federal law, or substantially interfere teachers. Board members whose terms expire may with any agency’s ability to perform its Requests for copies of the proposed be made by individuals, firms or statutory obligations. The IC Clearance information collection request may be associations. Nominations will: Official, Regulatory Information accessed from http://edicsweb.ed.gov, (1) State the region(s) to be Management Services, Office of by selecting the ‘‘Browse Pending represented. Management, publishes that notice Collections’’ link and by clicking on (2) State whether the nominee is containing proposed information link number 3726. When you access the representing carriers, shippers or both. collection requests prior to submission information collection, click on (3) Provide information on the of these requests to OMB. Each ‘‘Download Attachments’’ to view. nominee’s personal qualifications. proposed information collection, Written requests for information should (4) Include the commercial operations grouped by office, contains the be addressed to U.S. Department of of the carrier and/or shipper with whom following: (1) Type of review requested, Education, 400 Maryland Avenue, SW., the nominee is affiliated. This e.g. new, revision, extension, existing or LBJ, Washington, DC 20202–4537. commercial operations information will reinstatement; (2) Title; (3) Summary of Requests may also be electronically show the actual or estimated ton-miles the collection; (4) Description of the mailed to or faxed to 202–401–0920. of each commodity carried or shipped need for, and proposed use of, the Please specify the complete title of the on the inland waterways system in a information; (5) Respondents and information collection when making recent year (or years) using the frequency of collection; and (6) your request. waterway regions and commodity Reporting and/or Recordkeeping Comments regarding burden and/or categories previously listed. burden. OMB invites public comment. the collection activity requirements

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should be electronically mailed to e.g., new, revision, extension, existing Education is requesting renewal of its [email protected]. Individuals who or reinstatement; (2) Title; (3) Summary three-year clearance under a new use a telecommunications device for the of the collection; (4) Description of the collection number. deaf (TDD) may call the Federal need for, and proposed use of, the Requests for copies of the information Information Relay Service (FIRS) at information; (5) Respondents and collection submission for OMB review 1–800–877–8339. frequency of collection; and (6) may be accessed from http:// edicsweb.ed.gov, by selecting the [FR Doc. E8–15498 Filed 7–10–08; 8:45 am] Reporting and/or Recordkeeping burden. OMB invites public comment. ‘‘Browse Pending Collections’’ link and BILLING CODE 4000–01–M Dated: July 7, 2008. by clicking on link number 3656. When you access the information collection, Angela C. Arrington, DEPARTMENT OF EDUCATION click on ‘‘Download Attachments’’ to IC Clearance Official, Regulatory Information view. Written requests for information Management Services, Office of Management. Submission for OMB Review; should be addressed to U.S. Department Comment Request Office of Elementary and Secondary of Education, 400 Maryland Avenue, Education SW., LBJ, Washington, DC 20202–4537. AGENCY: Department of Education. Type of Review: New. Requests may also be electronically SUMMARY: The IC Clearance Official, Title: Impact Aid Program mailed to [email protected] or faxed Regulatory Information Management Application for Section 8003 to 202–401–0920. Please specify the Services, Office of Management invites Assistance. complete title of the information comments on the submission for OMB Frequency: Annually. collection when making your request. review as required by the Paperwork Affected Public: State, Local, or Tribal Comments regarding burden and/or Reduction Act of 1995. Gov’t, SEAs or LEAs. the collection activity requirements DATES: Interested persons are invited to Reporting and Recordkeeping Hour should be electronically mailed to submit comments on or before August Burden: [email protected]. Individuals who 11, 2008. Responses: 504,306. use a telecommunications device for the ADDRESSES: Written comments should Burden Hours: 143,346. deaf (TDD) may call the Federal be addressed to the Office of Abstract: The U.S. Department of Information Relay Service (FIRS) at Information and Regulatory Affairs, Education is requesting approval for the 1–800–877–8339. Attention: Education Desk Officer, Application for Assistance under [FR Doc. E8–15853 Filed 7–10–08; 8:45 am] Office of Management and Budget, 725 Section 8003 of Title VIII of the BILLING CODE 4000–01–P 17th Street, NW., Room 10222, Elementary and Secondary Education Washington, DC 20503. Commenters are Act (ESEA) as amended by No Child encouraged to submit responses Left Behind (NCLB). This application is DEPARTMENT OF ENERGY electronically by e-mail to otherwise known as Impact Aid Basic _ oira [email protected] or via fax Support Payments. Local Educational Federal Energy Regulatory to (202) 395–6974. Commenters should Agencies (LEAs) whose enrollments are Commission include the following subject line in adversely affected by Federal activities [Docket No. CP08–256–000] their response ‘‘Comment: [insert OMB use this form to request financial number], [insert abbreviated collection assistance. Regulations for the Impact Algonquin Gas Transmission, LLC; name, e.g., ‘Upward Bound Evaluation’]. Aid Program are found at 34 CFR 222. Notice of Intent To Prepare an Persons submitting comments The statute and regulations for this Environmental Assessment for the electronically should not submit paper program require a variety of data from Proposed J–2 Loop Project, Request copies. applicants annually to determine for Comments on Environmental SUPPLEMENTARY INFORMATION: Section eligibility for the grants and the amount Issues, and Notice of Site Visit 3506 of the Paperwork Reduction Act of of grant payment under the statutory 1995 (44 U.S.C. Chapter 35) requires formula. The least burdensome method July 3, 2008. that the Office of Management and of collecting this required information is The staff of the Federal Energy Budget (OMB) provide interested for each applicant to submit these data Regulatory Commission (FERC or Federal agencies and the public an early through a web-based electronic Commission) will prepare an opportunity to comment on information application hosted on the Department of environmental assessment (EA) that will collection requests. OMB may amend or Education’s e-Grants Web site. This discuss the environmental impacts of waive the requirement for public application was previously approved the J–2 Loop Project, involving consultation to the extent that public under OMB 1810–0036, along with a construction and operation of natural participation in the approval process separate application for Section 8002, gas facilities by Algonquin Gas would defeat the purpose of the payments for Federal property, another Transmission, LLC (Algonquin) in information collection, violate State or distinct formula that requires different Middlesex County, Massachusetts. The Federal law, or substantially interfere data from applicant LEAs. To facilitate EA will be used by the Commission in with any agency’s ability to perform its more efficient clearance processes for its decision-making process to statutory obligations. The IC Clearance both applications this year and in future determine whether the project is in the Official, Regulatory Information years, the Department is separating public convenience and necessity. Management Services, Office of these two applications into two This notice announces the opening of Management, publishes that notice paperwork approval packages. The the scoping period that will be used to containing proposed information Section 8002 application will be gather environmental input from the collection requests prior to submission submitted under the OMB 1810–0036 public and interested agencies on the of these requests to OMB. Each number that both applications project. Your input will help the proposed information collection, previously have been cleared under. Commission staff determine which grouped by office, contains the There are no substantive changes to this issues need to be evaluated in the EA. following: (1) Type of review requested, application. The Department of Please note that the scoping period will

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close on August 2, 2008. Details on how Appendix A presents a detailed map to federal, state, and local agencies; to submit comments are provided in the identifying all facilities associated with public interest groups; interested Public Participation section of this this project.3 individuals; affected landowners; notice. newspapers and libraries in the project Land Requirements for Construction If you are a landowner receiving this area; and the Commission’s official notice, you may be contacted by an Algonquin would temporarily disturb service list for this proceeding. A Algonquin representative about the about 36.8 acres to construct the new comment period will be allotted for acquisition of an easement to construct, pipeline and about 0.6 acres for review if the EA is published. We will operate, and maintain the proposed aboveground facilities. During operation consider all comments on the EA before project facilities. The pipeline company of the project, Algonquin would affect we make our recommendations to the would seek to negotiate a mutually about 0.33 acres for pipeline Commission. maintenance and about 0.04 acres for acceptable agreement. However, if the Public Participation project is approved by the Commission, aboveground facilities. The majority of the J–2 Loop Project You can make a difference by that approval conveys with it the right would be constructed within existing providing us with your specific of eminent domain. Therefore, if roadways, roadside shoulders, and comments or concerns about the project. easement negotiations fail to produce an paved parking areas. By becoming a commenter, your agreement, Algonquin could initiate concerns will be addressed in the EA condemnation proceedings in The EA Process and considered by the Commission. accordance with Massachusetts State We are preparing this EA to comply Your comments should focus on the law. with the National Environmental Policy potential environmental effects of the A fact sheet prepared by the FERC Act of 1969 (NEPA) which requires the proposal, reasonable alternatives entitled ‘‘An Interstate Natural Gas Commission to take into account the (including alternative locations and Facility on My Land? What Do I Need environmental impacts that could result routes), and measures to avoid or lessen to Know?’’ addresses a number of from an action whenever it considers environmental impact. The more typically asked questions, including the the issuance of a Certificate of Public specific your comments, the more useful use of eminent domain and how to Convenience and Necessity. NEPA also they will be. Please carefully follow participate in the Commission’s requires us to discover and address these instructions to ensure that your proceedings. It is available for viewing concerns the public may have about comments are received in time and on the FERC Internet Web site (http:// proposals. This process is referred to as properly recorded: www.ferc.gov). ‘‘scoping.’’ The main goal of the scoping • Send an original and two copies of With this notice, we 1 are asking other process is to focus the analysis in the your letter to: Kimberly D. Bose, Federal, State, and local agencies with EA on the important environmental Secretary, Federal Energy Regulatory jurisdiction and/or special expertise issues. By this notice, we are requesting Commission, 888 First Street NE., Room with respect to environmental issues to public comments on the scope of the 1A, Washington, DC 20426. • Label one copy of the comments for cooperate with us in the preparation of issues to be addressed in the EA. All comments received will be considered the attention of Gas Branch 1; the EA. Agencies that would like to • Reference Docket No. CP08–256– request cooperating status should follow during the preparation of the EA. The EA will discuss impacts that 000; the instructions for filing comments • Mail your comments so that they provided below. could occur as a result of the construction and operation of the will be received in Washington, DC on Summary of the Proposed Project proposed project under the following or before August 2, 2008. The Commission encourages general headings: electronic filing of comments. See 18 Algonquin seeks authorization to • Geology and Soils construct about 2.3 miles of 14-inch- • Cultural Resources Code of Federal Regulations diameter pipeline and associated • Land Use and Visual Quality 385.2001(a)(1)(iii) and the instructions facilities within the cities of Medford • Air Quality and Noise on the Commission’s Internet Web site and Somerville, Massachusetts. The • Alternatives at http://www.ferc.gov under the link to project would commence at an existing • Reliability and Safety ‘‘Documents and Filings’’ and ‘‘eFiling.’’ meter station adjacent to the Mystic We note that the proposed pipeline eFiling is a file attachment process and Valley Parkway in Medford and travel would be within high-density multi- requires that you prepare your in a general southeast direction within family residential areas and would submission in the same manner as you road rights-of-way to its terminus at an require special construction procedures. would if filing on paper, and save it to interconnection with NSTAR Gas Our independent analysis of the a file on your hard drive. New eFiling Company’s (NSTAR) system adjacent to issues will be addressed in the EA. users must first create an account by the McGrath Highway/railroad track Depending on the comments received clicking on ‘‘Sign up’’ or ‘‘eRegister.’’ overpass in Somerville. A meter station during the scoping process, the EA may You will be asked to select the type of and pig 2 launcher facility would be be published for distribution and mailed filing you are making. This filing is constructed in Medford, at the existing considered a ‘‘Comment on Filing.’’ In meter station and a valve and pig 3 The appendices referenced in this notice are not addition, there is a ‘‘Quick Comment’’ receiver would be constructed at the being printed in the Federal Register. Copies are option available, which is an easy interconnect with NSTAR. available on the Commission’s Internet Web site method for interested persons to submit (http://www.ferc.gov) at the ‘‘eLibrary’’ link or from the Commission’s Public Reference Room at (202) text only comments on a project. The 1 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the 502–8371. For instructions on connecting to Quick-Comment User Guide can be environmental staff of the FERC’s Office of Energy eLibrary, refer to the ‘‘Additional Information’’ viewed at http://www.ferc.gov/docs- Projects. section at the end of this notice. Copies of the filing/efiling/quick-comment-guide.pdf. 2 A pipeline ‘‘pig’’ is a device designed to appendices were sent to all those receiving this internally clean or inspect the pipeline. A pig notice in the mail. Requests for detailed maps of the Quick Comment does not require a launcher/receiver is an aboveground facility where proposed facilities should be made directly to FERC eRegistration account; however, pigs are inserted or retrieved from the pipeline. Dominion. you will be asked to provide a valid

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e-mail address. All comments submitted External Affairs at 1–866–208–FERC DEPARTMENT OF ENERGY under either eFiling or the Quick (3372). Comment option are placed in the Federal Energy Regulatory public record for the specified docket or Environmental Mailing List Commission project number(s). An effort is being made to send this notice to all individuals, organizations, [Docket Nos. ER07–1289–002; ER07–1289– Becoming an Intervenor 003; ER07–1289–004; ER07–1289–005; and government entities interested in Docket No. EL08–56–000 (consolidated)] In addition to involvement in the EA and/or potentially affected by the scoping process, you may want to proposed project. This includes all ISO New England Inc.; New Brunswick become an official party to the landowners who are potential right-of- Power Transmission Corporation, New proceeding known as an ‘‘intervenor.’’ way grantors, whose property may be Brunswick System Operator, and Intervenors play a more formal role in used temporarily for project purposes, Northern Maine Independent System the process. Among other things, or who own homes within distances Administrator v. ISO New England Inc.; intervenors have the right to receive defined in the Commission’s regulations Notice of Institution of Proceeding and copies of case-related Commission of certain aboveground facilities. We Refund Effective Date documents and filings by other encourage government representatives intervenors. Likewise, each intervenor to notify their constituents of this July 3, 2008. must send one electronic copy (using proposed project and encourage them to On July 2, 2008, the Commission the Commission’s eFiling system) or 14 comment on their areas of concern. If issued an order that instituted a paper copies of its filings to the you do not return the form included as proceeding in the above-referenced Secretary of the Commission and must Appendix C, you will be removed from proceeding, pursuant to section 206 of send a copy of its filings to all other the Commission’s environmental the Federal Power Act (FPA) 16 U.S.C. parties on the Commission’s service list mailing list. 824e, concerning issues stemming from for this proceeding. If you want to the Maine Electric Power Company become an intervenor, you must file a Additional Information Roll-in Proposal (the MEPCO Roll-in motion to intervene according to Rule Additional information about the Proposal) in ISO New England Inc., 124 214 of the Commission’s Rules of project is available from the FERC ¶ 61,013 (2008). Practice and Procedure (18 CFR Commission’s Office of External Affairs The refund effective date in the 385.214) (see appendix B). 4 Only at 1–866–208–FERC (3372) or on the above-docketed proceeding, established intervenors have the right to seek FERC Internet Web site (http:// pursuant to section 206(b) of the FPA, rehearing of the Commission’s decision. www.ferc.gov). Using the ‘‘eLibrary’’ will be the date of publication of this Affected landowners and parties with link, select ‘‘General Search’’ from the notice in the Federal Register. environmental concerns may be granted eLibrary menu, enter the selected date Kimberly D. Bose, intervenor status upon showing good range and ‘‘Docket Number’’ excluding cause by stating that they have a clear Secretary. the last three digits (i.e., CP08–256), and [FR Doc. E8–15790 Filed 7–10–08; 8:45 am] and direct interest in this proceeding follow the instructions. For assistance BILLING CODE 6717–01–P which would not be adequately with access to eLibrary, the helpline can represented by any other parties. You do be reached at 1–866–208–3676, TTY not need intervenor status to have your (202) 502–8659, or at DEPARTMENT OF ENERGY environmental comments considered. [email protected]. The Site Visit eLibrary link on the FERC Internet Web Federal Energy Regulatory site also provides access to the texts of Commission On July 15, 2008, the Office of Energy formal documents issued by the Projects’ (OEP) staff will conduct a pre- Commission such as orders, notices, and [Project No.: 12548–002] certification site visit of the proposed rule makings. J–2 Loop Project. Representatives of In addition, the Commission now Hydrodynamics, Inc.; Notice of Paper Algonquin and Massachusetts Energy Scoping and Soliciting Scoping Facilities Siting Board will accompany offers a free service called eSubscription which allows you to keep track of all Comments and ERRATA to Tendering the OEP staff. We will tour the proposed Notice project area by automobile and on foot formal issuances and submittals in viewing Algonquin’s proposed pipeline specific dockets. This can reduce the July 3, 2008. route, route variations, and aboveground amount of time you spend researching Take notice that the following facilities that are being considered for proceedings by automatically providing hydroelectric application has been filed the proposed project. you with notification of these filings, with the Commission and is available document summaries and direct links to All interested parties may attend the for public inspection. the documents. Go to http:// site visit. Those planning to attend must a. Type of Application: Minor www.ferc.gov/esubscribenow.htm. provide their own transportation. If you unconstructed project. are interested in attending the site visit, Finally, any public meetings or site b. Project No.: 12548–002. please meet us at 4:00 p.m. in the visits will be posted on the c. Date filed: April 1, 2008. parking lot of the Somerville High Commission’s calendar located at http:// d. Applicant: Hydrodynamics, Inc. School, 81 Highland Avenue, www.ferc.gov/EventCalendar/ e. Name of Project: Greenfield. Somerville, MA. EventsList.aspx along with other related f. Location: On the Greenfields Main For additional information, please information. Canal, part of the Bureau of contact the Commission’s Office of Reclamation’s Sun River Irrigation Kimberly D. Bose, Project, in Teton County, Montana, near Secretary. 4 Interventions may also be filed electronically via Fairfield, Montana. the Internet in lieu of paper. See the previous [FR Doc. E8–15792 Filed 7–10–08; 8:45 am] g. Filed Pursuant to: Federal Power discussion on filing comments electronically. BILLING CODE 6717–01–P Act 16 U.S.C. 791(a)–825(r).

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h. Applicant Contact: Roger Kirk, for inspection and reproduction at the d. Applicant: Hydrodynamics, Inc. Hydrodynamics, Inc., P.O. Box 1136, address in item h above. e. Name of Projects: Woods, Johnson, Bozeman, MT 59771, (406) 587–5086. You may also register online at and A-Drop. i. FERC Contact: Dianne Rodman, http://www.ferc.gov/docs-filings/ f. Location: On the Greenfields Main Federal Energy Regulatory Commission, esubscription.asp to be notified via e- Canal and the Greenfields South Canal, 888 First Street, NE., Washington, DC mail of new filings and issuances parts of the Bureau of Reclamation’s 20426; telephone (202) 502–6077 or by related to this or other pending projects. Sun River Irrigation Project, in Cascade e-mail at [email protected]. For assistance, contact FERC Online and Teton Counties, Montana, near j. Deadline for filing scoping Support. Fairfield, Montana. comments: August 4, 2008. n. Scoping Process: The Commission g. Filed Pursuant to: Federal Power All documents (original and eight intends to prepare an Environmental Act 16 U.S.C. 791(a)–825(r). copies) should be filed with: Kimberly Assessment (EA) on the project in h. Applicant Contact: Roger Kirk, D. Bose, Secretary, Federal Energy accordance with the National Hydrodynamics, Inc., P.O. Box 1136, Regulatory Commission, 888 First Environmental Policy Act of 1969, as Bozeman, MT 59771, (406) 587–5086. Street, NE., Washington, DC 20426. amended.1 The EA will consider both i. FERC Contact: Dianne Rodman, The Commission’s Rules of Practice site-specific and cumulative Federal Energy Regulatory Commission, require all intervenors filing documents environmental impacts and reasonable 888 First Street, NE., Washington, DC with the Commission to serve a copy of alternatives to the proposed action. 20426; telephone (202) 502–6077 or by that document on each person on the Commission staff does not propose to e-mail at [email protected]. official service list for the project. conduct any on-site scoping meetings at j. Deadline for filing scoping Further, if an intervenor files comments this time. Instead, we will solicit comments: August 4, 2008. or documents with the Commission comments, recommendations, All documents (original and eight relating to the merits of an issue that information, and alternatives in the copies) should be filed with: Kimberly may affect the responsibilities of a Scoping Document (SD). D. Bose, Secretary, Federal Energy particular resource agency, they must Copies of the SD outlining the subject Regulatory Commission, 888 First also serve a copy of the document on areas to be addressed in the EA were Street, NE., Washington, DC 20426. that resource agency. distributed to the parties on the The Commission’s Rules of Practice Scoping comments may be filed Commission’s mailing list. Copies of the require all intervenors filing documents electronically via the Internet in lieu of SD may be viewed on the Web at with the Commission to serve a copy of paper. The Commission strongly http://www.ferc.gov using the that document on each person on the encourages electronic filings. See 18 ‘‘eLibrary’’ link (see item m above). official service list for the project. CFR 385.2001(a)(1)(iii) and the o. The tendering notice issued April Further, if an intervenor files comments instructions on the Commission’s Web 14, 2008, incorrectly stated that the or documents with the Commission site (http://www.ferc.gov) under the application for the Greenfield Project relating to the merits of an issue that ‘‘e-Filing’’ link. was filed on March 31, 2008. The may affect the responsibilities of a k. This application is not ready for correct filing date for the Greenfield particular resource agency, they must environmental analysis at this time. Project application is April 1, 2008. also serve a copy of the document on l. The proposed Greenfield Project that resource agency. would be built at the Greenfields Main Kimberly D. Bose, Scoping comments may be filed Canal’s Greenfield drop structure. The Secretary. electronically via the Internet in lieu of applicant proposes to construct: (1) An [FR Doc. E8–15789 Filed 7–10–08; 8:45 am] paper. The Commission strongly inflatable weir spanning the width of BILLING CODE 6717–01–P encourages electronic filings. See 18 the canal; (2) an intake structure with CFR 385.2001(a)(1)(iii) and the trash rack and radial gate or stop-log instructions on the Commission’s Web shut off; (3) a buried, 84-inch-diameter, DEPARTMENT OF ENERGY site (http://www.ferc.gov) under the 650-foot-long steel or polyethylene ‘‘e-Filing’’ link. penstock; (4) a powerhouse containing Federal Energy Regulatory k. These applications are not ready for one Francis or propeller (Reaction) Commission environmental analysis at this time. turbine and one generator with a rated [Project No. 12540–002] l. The proposed Woods Project would output of 600 kilowatts; (5) a tailrace be built at the Greenfields Main Canal’s about 7 feet long, returning flows to the Hydrodynamics, Inc.; Notice of Paper Woods drop structure. The applicant canal; (6) a switchyard; and (7) a 0.05- Scoping and Soliciting Scoping proposes to construct: (1) An inflatable mile-long, 12-kilovolt transmission line Comments and Errata to Tendering weir spanning the full width of the interconnecting with an existing Notice canal; (2) an intake structure with trash powerline. Average annual generation rack and radial gate or stop-log shut off; would be 1.5 gigawatt hours. July 3, 2008. (3) a buried, 72-inch-diameter, 750-foot- m. A copy of the application is Take notice that the following long steel or polyethylene penstock; (4) available for review at the Commission hydroelectric applications have been a powerhouse containing one Francis or in the Public Reference Room or may be filed with the Commission and are propeller (Reaction) turbine and one viewed on the Commission’s Web site at available for public inspection. generator with a rated output of 900 http://www.ferc.gov using the a. Type of Application: Minor kilowatts (kW); (5) a tailrace about 12.5 ‘‘eLibrary’’ link. Enter the docket unconstructed projects. feet long, returning flows to the canal; number, excluding the last three digits, b. Project No.: 12540–002, 12545–002, (6) a switchyard; and (7) a 0.1-mile-long, in the docket number field to access the and 12549–002. 69-kilovolt (kV) transmission line document. For assistance, contact FERC c. Date Filed: March 31, 2008. interconnecting with an existing Online Support at powerline. Average annual generation 1 One EA will be prepared for the Woods Project [email protected] or toll- (FERC No. P–12540), Johnson Project, (FERC No. P– would be 2.2 gigawatt hours (GWh). free at 1–866–208–3676, or for TTY, 12545), Greenfield Project (FERC No. P–12548) and The proposed Johnson Project would (202) 502–8659. A copy is also available A-Drop Project (FERC No. P–12549). be built at the Greenfields South Canal’s

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Johnson drop structure. The applicant consider both site-specific and National Forest, Taylor County, WI, proposes to construct: (1) An inflatable cumulative environmental impacts and Comment Period Ends: 08/25/2008, weir spanning the width of the canal; (2) reasonable alternatives to the proposed Contact: Jane Darnell 715–748–4875. an intake structure with trash rack and actions. EIS No. 20080261, Draft EIS, USA, CA, radial gate or stop-log shut off; (3) a Commission staff does not propose to PROGRAMMATIC—Brigade Combat buried, 60-inch-diameter, 900-foot-long conduct any on-site scoping meetings at Team Transformation Project, steel or polyethylene penstock; (4) a this time. Instead, the staff will solicit Restructure the 11th Armored Cavalry powerhouse containing one Francis or comments, recommendations, Regiment (ACR) to a Multi- propeller (Reaction) turbine and one information, and alternatives in the Component (active duty/reserve) generator with a rated output of 700 kW; Scoping Document (SD). Heavy Brigade Combat Team (HBCT) (5) a tailrace about 11.25 feet long, Copies of the SD outlining the subject and change/add several other returning flows to the canal; (6) a areas to be addressed in the EA were organizations, Fort Irwin, CA, switchyard; (7) a 0.5-mile-long, 69-kV distributed to the parties on the Comment Period Ends: 08/25/2008, transmission line interconnecting with Commission’s mailing list. Copies of the Contact: Muhammad Bari 760–480– an existing powerline; and (8) a SD may be viewed on the Web at 3410. powerhouse access road. Average http://www.ferc.gov using the EIS No. 20080262, Draft EIS, SFW, NV, annual generation would be 1.7 GWh. ‘‘eLibrary’’ link (see item m above). Desert National Wildlife Refuge The proposed A-Drop Project would o. The tendering notice issued April Complex, Ash Meadows, Desert, be built at the Greenfields Main Canal’s 14, 2008, incorrectly stated that the Moapa Valley and Pahranagat Greenfield drop structure. The applicant application for the A-Drop Project was National Wildlife Refuges, proposes to construct: (1) An inflatable filed on April 1, 2008. The correct filing Comprehensive Conservation Plan, weir spanning the width of the canal; (2) date for the A-Drop Project application Clark, Lincoln and Nye counties, NV, an intake structure with trash rack and is March 31, 2008. Comment Period Ends: 08/25/2008, radial gate or stop-log shut off; (3) a Contact: Cynthia Martinez 702–515– Kimberly D. Bose, buried, 96-inch-diameter, 570-foot-long 5450. steel or polyethylene penstock; (4) a Secretary. EIS No. 20080263, Draft EIS, COE, CA, powerhouse containing one Francis or [FR Doc. E8–15791 Filed 7–10–08; 8:45 am] Three Rivers Levee Improvement propeller (Reaction) turbine and one BILLING CODE 6717–01–P Authority, proposes construct and generator with a rated output of 1,000 maintain the Feather River Levee kW; (5) a tailrace returning flows to the Repair Project, Segment 2, Issuing 408 canal; (6) a switchyard; (7) a 0.1-mile- ENVIRONMENTAL PROTECTION Permission and 404 Permit, Yuba long, 12-kV transmission line AGENCY County, CA, Comment Period Ends: 08/25/2008, Contact: John Suazo 916– interconnecting with an existing [ER–FRL–8583–5] powerline; and (8) an approximately 557–6719. 570-foot-long powerhouse access road. Environmental Impacts Statements; EIS No. 20080264, Second Final Average annual generation would be 2.5 Notice of Availability Supplement, DOE, NV, Geologic GWh. Repository for the Disposal of Spent m. Copies of the applications are Responsible Agency: Office of Federal Nuclear Fuel and High-Level available for review at the Commission Activities, General Information (202) Radioactive Waste at Yucca in the Public Reference Room or may be 564–7167 or http://www.epa.gov/ Mountain, Nye County, Nevada— viewed on the Commission’s Web site at compliance/nepa/. Nevada Rail Transportation Corridor http://www.ferc.gov using the Weekly receipt of Environmental Impact (DOE/EIS–0250F–S2D), Wait Period ‘‘eLibrary’’ link. Enter the docket Statements. Ends: 08/11/2008, Contact: Dr. Jane R. number, excluding the last three digits, Filed 06/30/2008 through 07/02/2008. Summerson 702–794–1493. in the docket number field to access Pursuant to 40 CFR 1506.9. EIS No. 20080265, Second Final EIS each of the documents. For assistance, EIS No. 20080259, Draft EIS, AFS, WY, (Tiering), DOE, NV, Rail Alignment contact FERC Online Support at Spruce Gulch Bark Beetle and Fuels for the Construction and Operation of [email protected] or toll- Reduction Project, Proposes to a Railroad in Nevada to a Geologic free at 1–866–208–3676, or for TTY, Implement Bark Beetle Related Repository (DOE/EIS–0369D) at Yucca (202) 502–8659. Copies are also Salvage and Suppression Vegetative Mountain, Nye County, NV, Wait available for inspection and Treatments and Hazardous Fuels Period Ends: 08/11/2008, Contact: Dr. reproduction at the address in item h Abatement Treatments, Laramie Jane R. Summerson 702–794–1493. EIS No. 20080266, Final Supplement, above. Ranger District, Medicine Bow-Routt You may also register online at National Forests, Albany and Carbon DOE, NV, Geologic Repository for the http://www.ferc.gov/docs-filings/ Counties, WY, Comment Period Ends: Disposal of Spent Nuclear Fuel and esubscription.asp to be notified via e- 08/25/2008, Contact: Melissa M. High-Level Radioactive Waste, mail of new filings and issuances Martin 307–745–2371. This document Construction, Operation, Monitoring related to this or other pending projects. is available on the Internet at: and Eventually Closing a Geologic For assistance, contact FERC Online http://www.fs.fed.us/r2/mbr/projects/ Repository (DOE/EIS–0250F–S1D) at Support. foresthealth. Yucca Mountain, Nye County, NV, n. Scoping Process EIS No. 20080260, Draft EIS, AFS, WI, Wait Period Ends: 08/11/2008, The Commission intends to prepare Medford Aspen Project, To Implement Contact: Dr. Jane R. Summerson 702– an Environmental Assessment (EA) on a Number of Vegetation and 794–1493. the projects in accordance with the Transportation Management EIS No. 20080267, Draft Supplement, National Environmental Policy Act of Activities, Medford-Park Falls Ranger BLM, CA, Sunrise Powerlink 1969, as amended.1 The EA will District, Chequamegon-Nicolet Transmission Line Project, New Information, Proposed Land Use Plan 1 One EA will be prepared for the Woods Project 12545), Greenfield Project (FERC No. P–12548) and Amendment, Construction and (FERC No. P–12540), Johnson Project, (FERC No. P– A-Drop Project (FERC No. P–12549). Operation of a New 91-mile 500

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kilovolt (kV) Electric Transmission ENVIRONMENTAL PROTECTION of tritium to the Savannah River. Line from Imperial Valley Substation AGENCY Surface water withdrawal impacts and impacts to aquatic species during (in Imperial Co. near the City of El [ER–FRL–8583–6] Centro) to a New Central East drought conditions are also a concern. Substation (in Central San Diego Environmental Impact Statements and Rating EC1. County) Imperial and San Diego Regulations; Availability of EPA EIS No. 20080159, ERP No. DA–NOA– Counties, CA, Comment Period Ends: Comments A91061–00, Atlantic Mackerel, Squid 08/25/2008, Contact: Lynda Kastoll and Butterfish, Fishery Management Availability of EPA comments 760–337–4400. Plan, Amendment No. 10, Develop a prepared pursuant to the Environmental EIS No. 20080268, Draft Supplement, Rebuilding Program that Allows the Review Process (ERP), under section Butterfish Stock to Rebuild in the FTA, MN, Central Corridor Project, 309 of the Clean Air Act and section New Information on the 11 miles Shortest Amount of Time Possible, 102(2) (c) of the National Environmental Exclusive Economic Zone (EEZ) off Light Rail Transit between downtown Policy Act as amended. Requests for the U.S. Atlantic Coast. Minneapolis and downtown St. Paul, copies of EPA comments can be directed Minnesota, Twin Cities Metropolitan to the Office of Federal Activities at Summary: EPA has no objection to the Area, MN, Comment Period Ends: 08/ 202–564–7167. An explanation of the proposed action. Rating LO. 25/2008, Contact: Marisol Simon 312– ratings assigned to draft environmental EIS No. 20080180, ERP No. DC–FTA– 353–2789. impact statements (EISs) was published L40205–00, South Corridor Portland- in FR dated April 11, 2008 (73 FR Milwaukie Light Rail Project, Amended Notices 19833). Proposal to Develop Light Rail Transit in Final Segment, Connecting EIS No. 20070536, Draft EIS, AFS, 00, Draft EISs Downtown Portland, OR, the City of ∼VOIDED∼ National Forest System EIS No. 20080077, ERP No. D–COE– Milwaukie and north Clackamas and Lands in Utah Wild and Scenic River K36149–CA, San Diego Creek Multnomah Counties, OR and Clark Suitability Study for 86 Eligible River Watershed Special Area Management County, WA. Segments for Inclusion in the Plan/Watershed Streambed Alteration National Wild and Scenic River Summary: EPA expressed Agreement Process (SAMP/WSAA environmental concerns about water System, Ashley, Dixie, Fishlake, Process), Protecting and Enhancing Manti-LaSal, Uinta, Wasatch-Cache quality impacts within waterbodies that Aquatic Resource and Permitting are 303(d) listed for temperature, National Forests in Utah and Portions Reasonable Economic Development, mercury, bacteria, and other criteria. of National Forests in Colorado and Orange County, CA. The project has the potential to disturb Wyoming, Comment Period Ends: 02/ Summary: EPA continues to have contaminated sites and to release 15/2008, Contact: Catherine Kahlow environmental concerns about impacts hazardous substances. Rating EC2. 435–783–4338. to resources and requested additional information on the reasonableness of the EIS No. 20080185, ERP No. DS–FSA– This DEIS was inadvertently refilled alternatives, and why specific A65173–00, PROGRAMMATIC— and published in 12/28/2007 FR. The Nationwide Permits are proposed for Expansion of the Emergency Correct DEIS #20070508 was published revocation while others would be Conservation Program, To Restore in 12/07/2007 FR. retained. Rating EC2. Farmland (Cropland, Hayland and Pastureland) to a Normal Productive EIS No. 20080106, Draft EIS, AFS, CO, EIS No. 20080135, ERP No. D–COE– State after a Natural Disaster. Long Draw Reservoir Project, Re-Issue E39072–TN, PROGRAMMATIC— a Special-Use-Authorization to Water Hydropower Rehabilitations, Summary: EPA has no objections to Supply and Storage to Allow the Dissolved Oxygen and Minimum the proposed action. Rating LO. Continued Use of Long Draw Flow Regimes at Wolf Creek Dam, Final EISs Reservoir and Dam, Arapaho and Kentucky and Center Hill and Dale EIS No. 20080017, ERP No. F–COE– Roosevelt National Forests and Hollow Dams, Tennessee, K39098–CA, San Clemente Dam Pawnee National Grassland, Grand Implementation. Seismic Safety Project, Increase Dam and Larimer Counties, CO, Comment Summary: EPA expressed Safety to Meet Current Design Period Ends: 07/11/2008, Contact: Standards, Monterey County, CA. Ken Tu 970–295–6623. Revision of FR environmental concerns about water Notice Published 03/28/2008: quality and stream flow impacts, and Summary: EPA continues to have environmental concerns about habitat Extending Comment Period from 06/ recommends the identification of the improvement program and schedule, impacts and steelhead recovery 11/2008 to 07/11/2008. monitoring protocols, and adaptive following dam removal. EPA supported Dated: July 8, 2008. management decision-making process in the two dam removal alternatives and Ken Mittelholtz, the Final EIS. Rating EC2. noted continuing concerns with all Environmental Protection Specialist, Office EIS No. 20080156, ERP No. D–NRC– other alternatives. of Federal Activities. E06026–GA, GENERIC—License EIS No. 20080141, ERP No. F–TVA– [FR Doc. E8–15813 Filed 7–10–08; 8:45 am] Renewal of Nuclear Plants, E08022–TN, Rutherford-Williamson- BILLING CODE 6560–50–P Supplement 34 to NUREG–1437, Davidson Power Supply Improvement Regarding Vogtle Electric Generating Project, Proposes to Construct and Plant Units 1 and 2 (VEGP) near Operate a New 500-kilovolt (kV) Waynesboro, GA. Rutherford Substation, a New 27-mile Summary: EPA expressed 500-kV Transmission Line and Two environmental concerns about tritium New 9- and 15 mile 161-kV and requested additional information on Transmission Lines, Rutherford, actions to mitigate or lessen the release Williamson, and Maury Counties, TN.

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Summary: EPA continues to have Dated: July 8, 2008. criteria are to ‘‘accurately reflect the environmental concerns about impaired Ken Mittelholtz, latest scientific knowledge useful in waterbody and forested wetland Environmental Protection Specialist, Office indicating the kind and extent of all impacts. of Federal Activities. identifiable effects on public health or [FR Doc. E8–15842 Filed 7–10–08; 8:45 am] welfare which may be expected from the EIS No. 20080183, ERP No. F–FHW– BILLING CODE 6560–50–P presence of [a] pollutant in the ambient F40429–00, US–131 Improvement air * * *.’’ Under section 109 of the Study, from the Indiana Toll Road (1– Act, EPA is then to establish national 80/90) to a Point One Mile North of ENVIRONMENTAL PROTECTION ambient air quality standards (NAAQS) Cowling Road, U.S. Army COE AGENCY for each pollutant for which EPA has Section 404 Permit, St. Joseph issued criteria. Section 109(d) of the Act [FRL–8689–9] County, MI and Elkhart County, IN. requires subsequent periodic review Summary: While EPA has no Integrated Science Assessment for and, if appropriate, revision of existing objection to the proposed action, EPA Oxides of Nitrogen—Health Criteria air quality criteria to reflect advances in recommended that the ROD discuss scientific knowledge on the effects of AGENCY: Environmental Protection monitoring wetland hydrology and the pollutant on public health and Agency. welfare. EPA is also to revise the coordinate seasonal restrictions on ACTION: NAAQS, if appropriate, based on the activities in the St. Joseph River riparian Notice of availability. revised air quality criteria. corridor. SUMMARY: The U.S. Environmental Oxides of nitrogen are one of six EIS No. 20080196, ERP No. F–NRC– Protection Agency (EPA) is announcing principal (or ‘‘criteria’’) pollutants for H06006–KS, GENERIC—License the availability of a final document which EPA has issued air quality Renewal of Nuclear Plants Regarding entitled ‘‘Integrated Science Assessment criteria. National ambient air quality Wolf Creek Generating Station, for Oxides of Nitrogen—Health Criteria’’ standards (NAAQS) based on those (WCGS) Unit 1. Supplement 32 to (EPA/600/R–08/071). The document criteria have been established for was prepared by the National Center for NUREG 1437, Implementation, Coffey nitrogen dioxide (NO2), an indicator for Environmental Assessment within Country, KS. gaseous nitrogen oxides. Periodically, EPA’s Office of Research and EPA reviews the scientific basis for Summary: While EPA has no Development as part of the review of the these standards by preparing an objections to the proposed action, EPA primary (health-based) national ambient Integrated Science Assessment (ISA) recommends close coordination with air quality standards (NAAQS) for and supplementary annexes, formerly the U.S. Army Corps of Engineers oxides of nitrogen. called an Air Quality Criteria Document regarding the viability of John Redmond DATES: The document will be available (AQCD). The ISA and supplementary reservoir to supply future make-up on July 11, 2008. annexes, in conjunction with additional water needs. ADDRESSES: The ‘‘Integrated Science technical and policy assessments, Assessment for Oxides of Nitrogen— provide the scientific basis for EPA EIS No. 20080208, ERP No. F–NRC– decisions on the adequacy of a current G09805–OK, Sequoyah Fuels Health Criteria’’ will be available primarily via the Internet on the NAAQS and the appropriateness of new Corporation Site, Proposed or revised standards. The Clean Air Reclamation Activities for the 243- National Center for Environmental Assessment’s home page under the Scientific Advisory Committee hectare (600 acre) Site, (NUREG– Recent Additions and Publications (CASAC), an independent science 1888) in Gore, OK. menus at http://www.epa.gov/ncea. A advisory committee mandated by the Summary: No formal comment letter limited number of CD–ROM or paper Clean Air Act and part of the EPA’s was sent to the preparing agency. copies will be available. Contact Ms. Science Advisory Board (SAB), is Ellen Lorang by phone (919–541–2771), charged with independent, expert EIS No. 20080212, ERP No. F–BIA– fax (919–541–5078), or e-mail scientific review of EPA’s draft ISAs. L60108–WA, Cowlitz Indian Tribe ([email protected]) to request either On December 9, 2005 (70 FR 73236), Trust Acquisition and Casino Project, of these, and please provide your name, EPA formally initiated its current Take 151.87 Acres into Federal Trust your mailing address, and the document review of the criteria for Oxides of and Issuing of Reservation title, ‘‘Integrated Science Assessment for Nitrogen, requesting the submission of Proclamation, and Approving the Oxides of Nitrogen—Health Criteria’’ recent scientific information on Gaming Development and (EPA/600/R–08/071), to facilitate specified topics. A draft of EPA’s Management Contract, Clack County, processing of your request. ‘‘Integrated Review Plan for the Primary National Ambient Air Quality Standard WA. FOR FURTHER INFORMATION CONTACT: For for Nitrogen Dioxide’’ was made Summary: EPA’s previous issues have technical information, contact Dennis available in February 2007 for public been resolved; therefore, EPA has no Kotchmar, M.D., NCEA; telephone: 919– comment and was discussed by the objection to the proposed action. 541–4158; facsimile: 919–541–5078; or Clean Air Science Advisory Committee e-mail: [email protected] or (CASAC) via a publicly accessible EIS No. 20080216, ERP No. F–BPA– Thomas Luben, PhD, NCEA; telephone: J08028–MT, Libby (FP-1) to Troy teleconference consultation on May 11, 919–541–5762; or e-mail: 2007 (72 FR 20336). In February 2007 Section of BPA’s Libby to Bonner [email protected]. Ferry 115-kilovolt Transmission Line (72 FR 6238), a workshop was held to SUPPLEMENTARY INFORMATION: Project, Rebuilding Transmission Line Section discuss, with invited scientific experts, between Libby and Troy, Lincoln 108(a) of the Clean Air Act directs the initial draft materials prepared in the Administrator to identify certain County, MT. development of the ISA and pollutants that ‘‘may reasonably be supplementary annexes for oxides of Summary: EPA expressed anticipated to endanger public health nitrogen. The first external review draft environmental concerns about water and welfare’’ and to issue air quality of this ISA was released for public quality and ground disturbance impacts. criteria for them. These air quality comment and review by the CASAC on

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August 31, 2007 (72 FR 50107), and was technical advice to the Administrator on 72 FR 50105–50107). The SAB has reviewed by CASAC at a public meeting the technical basis for Agency positions drafted an advisory to the Administrator held on October 24–25, 2007. The and regulations. The SAB is a Federal as a result of these discussions. second draft of this ISA was released for advisory committee chartered under the Discussions of those comments will be public comment and review by the Federal Advisory Committee Act completed during the SAB meeting on CASAC in March 2008 (73 FR 11916), (FACA), as amended, 5 U.S.C., App. The July 28, 2008. Additional information and was reviewed by CASAC at a public SAB will comply with the provisions of about this topic is available on the SAB meeting held on May 1–2, 2008. EPA FACA and all appropriate SAB Staff Web site at: http://yosemite.epa.gov/ has considered comments by CASAC Office procedural policies. Pursuant to sab/sabproduct.nsf/02ad90b136fc21ef and the public in preparing this final the Federal Advisory Committee Act, 85256eba00436459/75e560f8a ISA. Public Law 92–463, notice is hereby 00949fa8525714c Dated: July 1, 2008. given that the EPA SAB will hold a 00454e95!OpenDocument. public teleconference meeting to discuss Rebecca M. Clark, several issues and to conduct a quality Availability of Meeting Materials: The Acting Director, National Center for review of the SAB Panel’s draft agenda and other materials in support of Environmental Assessment. Advisory on the EPA Ecological this meeting will be placed on the SAB [FR Doc. E8–15726 Filed 7–10–08; 8:45 am] Research Program Multi-year Plan. Web site at http://www.epa.gov/sab in BILLING CODE 6560–50–P Background: (a) SAB Quality Review advance of this meeting. of the Draft SAB Report Advisory on the Procedures for Providing Public Input: EPA Ecological Research Program Multi- Interested members of the public may ENVIRONMENTAL PROTECTION year Plan. The Chartered Science AGENCY submit relevant written or oral Advisory Board will conduct a quality information for the SAB to consider [FRL–8690–9] review of the draft SAB committee during this teleconference. report on EPA’s Ecological Research EPA Science Advisory Board Staff Multi-Year Plan prepared by the SAB’s Oral Statements: In general, Office; Notification of a Public Ecological Processes and Effects individuals or groups requesting time to Teleconference Meeting of the Committee (EPEC). The draft report is in make an oral presentation at a public Chartered Science Advisory Board response to an EPA Office of Research SAB teleconference will be limited to and Development (ORD) request that the three minutes, with no more than one- AGENCY: Environmental Protection SAB review the Agency’s proposed half hour for all speakers. At face-to-face Agency (EPA). Research Program Strategy and Multi- meetings, presentations will be limited ACTION: Notice. year Plan that focuses on research issues to five minutes, with no more than a related to ecosystems and ecosystem total of one hour for all speakers. To be SUMMARY: The EPA Science Advisory services. The draft report is available on placed on the public speaker list, Board (SAB) Staff Office announces a the SAB Web Site at: http:// interested parties should contact Mr. public teleconference meeting of the yosemite.epa.gov/sab/sabproduct.nsf/0/ Thomas Miller, DFO, in writing chartered SAB to: (1) Conduct its quality EE66B20E1A20BBA18525734D (preferably by e-mail), by July 21, 2008 review of the SAB draft report SAB 005E6665?OpenDocument. at the contact information provided Advisory on the EPA Ecological (b) EPA Strategic Research Directions: above. Written Statements: Written Research Program Multi-year Plan; (2) The Science Advisory Board engaged statements should be received in the have follow-up discussions of EPA’s with EPA in a continuing dialogue to SAB Staff Office by July 21, 2008, so strategic research directions; and (3) evaluate and provide advice on the that the information may be made complete its discussions of science that strategic directions for EPA’s research available to the SAB for their supports EPA’s disaster response program for the next five to fifteen consideration prior to this programs. years. This activity complements the teleconference meeting. Written DATES: The meeting date is Monday, annual SAB review of EPA’s research statements should be supplied to the July 28, 2008, from 1 p.m. to 5 p.m. budget, and permits a more critical DFO via e-mail to [email protected] (Eastern Time). evaluation of research programs than is (acceptable file format: Adobe Acrobat Location: The meeting will be possible during those research budget PDF, WordPerfect, MS Word, MS reviews. The SAB will continue its conducted by telephone only. PowerPoint, or Rich Text files in IBM- discussions at its July 28, 2008 meeting. FOR FURTHER INFORMATION CONTACT: Any PC/Windows 98/2000/XP format). member of the public wishing to obtain Additional information on past discussions (e.g., October 3–5, 2007 Accessibility: For information on general information concerning this meeting; see 72 FR 50105–50107) and access or services for individuals with public teleconference meeting should other relevant information can be found disabilities, please contact Mr. Thomas contact Mr. Thomas O. Miller, on the EPA SAB Web site at: http:// Miller at (202) 343–9982 or Designated Federal Officer (DFO), EPA yosemite.epa.gov/sab/sabproduct.nsf/ [email protected]. To request Science Advisory Board (1400F), 1200 36a1ca3f683ae57a85256ce9006a32d0/ accommodation of a disability, please Pennsylvania Ave., NW., Washington, 54b1d2e5f6dbb2b38525730c contact Mr. Miller, preferably at least 10 DC 20460; via telephone/voice mail: 00624a96!OpenDocument). days prior to the meeting, to give EPA (202) 343–9982; fax: (202) 233–0643; or (c) Environmental Disasters. The SAB as much time as possible to process e-mail at [email protected]. General is formulating advice to EPA aimed at your request. information concerning the EPA Science strengthening science underlying EPA’s Dated: July 8, 2008. Advisory Board can be found on the preparation for and response to SAB Web site at: http://www.epa.gov/ environmental disasters. The SAB Anthony F. Maciorowski, sab. previously discussed this topic at its Deputy Director, EPA Science Advisory Board SUPPLEMENTARY INFORMATION: The SAB meetings on December 12–14, 2006 (see Staff Office. was established by 42 U.S.C. 4365 to 71 FR 67566), June 19–20, 2007 (see 72 [FR Doc. E8–15798 Filed 7–10–08; 8:45 am] provide independent scientific and FR 27308) and October 3–5, 2007 (see BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION Committee encourages the public’s Memorandum and resolution re: Notice of AGENCY input and will take public comment Proposed Rulemaking on Recordkeeping starting at 5:30 p.m. on July 30, 2008, for Requirements for Qualified Financial [FRL–8691–1] this purpose. It is preferred that only Contracts. Memorandum and resolution re: Final Meeting of the Total Coliform Rule one person present the statement on Covered Bond Policy Statement. Distribution System Advisory behalf of a group or organization. To The meeting will be held in the Board Committee—Notice of Public Meeting ensure adequate time for public Room on the sixth floor of the FDIC Building involvement, individuals interested in located at 550 17th Street, NW., Washington, AGENCY: Environmental Protection presenting an oral statement may notify DC. Agency (EPA). Crystal Rodgers-Jenkins, the Designated This Board meeting will be Webcast live ACTION: Notice. Federal Officer, by telephone at (202) via the Internet at: http://www.vodium.com/ 564–5275, no later than July 25, 2008. goto/fdic/boardmeetings.asp. This service is SUMMARY: Under Section 10(a)(2) of the Any person who wishes to file a written free and available to anyone with the Federal Advisory Committee Act, the following system requirements: http:// statement can do so before or after a www.vodium.com/home/sysreq.html (http:// United States Environmental Protection Committee meeting. Written statements Agency (EPA) is giving notice of a www.vodium.com). Adobe Flash Player is received by July 25, 2008, will be required to view these presentations. The meeting of the Total Coliform Rule distributed to all members before any latest version of Adobe Flash Player can be Distribution System Advisory final discussion or vote is completed. downloaded at http://www.macromedia.com/ Committee (TCRDSAC). The purpose of Any statements received on July 28, go/getflashplayer. Installation questions or this meeting is to discuss the Total 2008, or after the meeting will become troubleshooting help can be found at the Coliform Rule (TCR) revision and part of the permanent meeting file and same link. information about distribution systems will be forwarded to the members for For optimal viewing, a high-speed Internet connection is recommended. The Board issues that may impact water quality. their information. The TCRDSAC advises and makes meetings videos are made available on- recommendations to the Agency on Special Accommodations demand approximately one week after the revisions to the TCR, and on what event. For information on access or The FDIC will provide attendees with information should be collected, accommodations for individuals with auxiliary aids (e.g., sign language research conducted, and/or risk disabilities, please contact Crystal interpretation) required for this meeting. management strategies evaluated to Rodgers-Jenkins at (202) 564–5275 or by Those attendees needing such assistance better inform distribution system e-mail at rodgers- should call (703) 562–6067 (Voice or TTY), contaminant occurrence and associated [email protected]. Please allow at to make necessary arrangements. public health risks. least 10 days prior to the meeting to give Requests for further information Topics to be discussed in the meeting EPA time to process your request. concerning the meeting may be directed to include options for revising the Total Mr. Robert E. Feldman, Executive Secretary Dated: July 7, 2008. Coliform Rule; for example, rule of the Corporation, at (202) 898–7122. construct, monitoring provisions, Cynthia C. Dougherty, Dated: July 8, 2008. system categories, action levels, Director, Office of Ground Water and Drinking Federal Deposit Insurance Corporation. Water. investigation and follow-up, public Robert E. Feldman, [FR Doc. E8–15844 Filed 7–10–08; 8:45 am] notification, and other related topics. In Executive Secretary. BILLING CODE 6560–50–P addition, the Committee will discuss [FR Doc. E8–15849 Filed 7–10–08; 8:45 am] possible recommendations for research BILLING CODE 6714–01–P and information collection needs concerning distribution systems. FEDERAL DEPOSIT INSURANCE CORPORATION DATES: The public meeting will be held FEDERAL DEPOSIT INSURANCE on Wednesday, July 30, 2008 (8:30 a.m. Notice of Agency Meeting CORPORATION to 6 p.m., Eastern Time (ET)) and Thursday, June 31, 2008 (8 a.m. to 3 Pursuant to the provisions of the Notice of Agency Meeting p.m., ET). Attendees should register for ‘‘Government in the Sunshine Act’’ (5 Pursuant to the provisions of the the meeting by calling Kate Zimmer at U.S.C. 552b), notice is hereby given that ‘‘Government in the Sunshine Act’’ (5 (202) 965–6387 or by e-mail to the Federal Deposit Insurance U.S.C. 552b), notice is hereby given that [email protected] no later than July Corporation’s Board of Directors will at 1:30 p.m. on Tuesday, July 15, 2008, 25, 2008. meet in open session at 1 p.m. on the Federal Deposit Insurance Tuesday, July 15, 2008, to consider the ADDRESSES: The meeting will be held at Corporation’s Board of Directors will following matters: St. Gregory Hotel, 2033 M Street, NW., meet in closed session, pursuant to Washington, DC 20036. Summary Agenda: No substantive section 552b(c)(4), (c)(6), (c)(8), FOR FURTHER INFORMATION CONTACT: For discussion of the following items is (9)(A)(ii), and (9)(B) of Title 5, United anticipated. These matters will be resolved general information, contact Kate States Code, to consider matters relating Zimmer of RESOLVE at (202) 965–6387. with a single vote unless a member of the Board of Directors requests that an item be to the Corporation’s supervisory and For technical inquiries, contact Sean moved to the discussion agenda. corporate activities. Conley ([email protected], (202) Disposition of minutes of previous Board The meeting will be held in the Board 564–1781), Standards and Risk of Directors’ meetings. Room on the sixth floor of the FDIC Management Division, Office of Ground Summary reports, status reports, and Building located at 550 17th Street, Water and Drinking Water (MC 4607M), reports of actions taken pursuant to authority NW., Washington, DC. Environmental Protection Agency, 1200 delegated by the Board of Directors. Requests for further information Pennsylvania Ave., NW., Washington, Discussion Agenda: Memorandum and resolution re: Final Guidance: Supervisory concerning the meeting may be directed DC 20460; fax number: (202) 564–3767. Process of Capital Adequacy (Pillar 2) to Mr. Robert E. Feldman, Executive SUPPLEMENTARY INFORMATION: The Related to the Implementation of the Basel II Secretary of the Corporation, at (202) meeting is open to the public. The Advanced Capital Framework. 898–7122.

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Dated: July 8, 2008. FOR MORE INFORMATION PLEASE CONTACT: OMB No.: New Collection. Federal Deposit Insurance Corporation. Michelle Smith, Director, or Dave Description: The Administration for Robert E. Feldman, Skidmore, Assistant to the Board, Office Children and Families (ACF), U.S. Executive Secretary. of Board Members at 202–452–2955. Department of Health and Human [FR Doc. E8–15850 Filed 7–10–08; 8:45 am] SUPPLEMENTARY INFORMATION: You may Services (HHS), is proposing a data call 202–452–3206 for a recorded BILLING CODE 6714–01–P collection activity as part of the announcement of this meeting; or you Exploration of Low-Income Couples’ may contact the Board’s Web site at Decision Making (CDM) Processes http://www.federalreserve.gov for an study. This project will gather important FEDERAL RESERVE SYSTEM electronic announcement. (The Web site also includes procedural and other information that will be useful for Government in the Sunshine; Meeting information about the open meeting.) improving social services delivery Notice approaches for working with Dated: July 8, 2008. individuals in couple relationships. The Robert deV. Frierson, AGENCY HOLDING THE MEETING: Board of proposed collection will consist of a Deputy Secretary of the Board. Governors of the Federal Reserve telephone survey and in-home System. [FR Doc. 08–1429 Filed 7–9–08; 8:45 am] observation of low-income couples. BILLING CODE 6210–01–P PREVIOUSLY ANNOUNCED TIME AND DATE OF These data collection efforts will THE MEETING: 10 a.m. on Monday, July examine sources of conflict and assess 14, 2008. decision-making processes among low- DEPARTMENT OF HEALTH AND income couples—especially in relation CHANGES IN THE MEETING: The discussion HUMAN SERVICES to issues directly addressed by social agenda title has changed from: service programs (e.g., employment, Final Amendments to Regulation Z Administration for Children and housing, etc.) (Truth in Lending) to the new title of: Families Respondents: Low-income couples. Final Amendments to Regulation Z Submission for OMB Review; (Truth in Lending) Relating to Mortgage Comment Request Lending and Proposed Conforming Amendments to Regulation C (Home Title: Exploration of Low-Income Mortgage Disclosure). Couples’ Decision-Making Processes.

ANNUAL BURDEN ESTIMATES

Number of Annual responses Average Estimated Instrument number of per respond- burden hours annual burden respondents ent per response hours

Telephone Survey ...... 90 1 .333 30 In-Home Observation ...... 90 1 2.666 240

Estimated Total Annual Burden Administration for Children and Youth (CEY) program. The information Hours: 270. Families. collected will complement a survey Additional Information: Copies of the Dated: July 2, 2008. (OMB No. 0970–0335) that is examining proposed collection may be obtained by Brendan C. Kelly, the organizational and partnership writing to the Administration for Reports Clearance Officer. capacity-building experienced by organizations funded under the CEY Children and Families, Office of [FR Doc. E8–15501 Filed 7–10–08; 8:45 am] Planning, Research and Evaluation, 370 program. The proposed information BILLING CODE 4184–01–M L’Enfant Promenade, SW., Washington, collection will allow in-depth DC 20447, Attn: OPRE Reports examination of a select number of lead Clearance Officer. All requests should DEPARTMENT OF HEALTH AND organizations and their partners. be identified by the title of the HUMAN SERVICES Information collection will be through information collection. E-mail address: on-site observations of organizations [email protected]. Administration for Children and and partnerships and structured OMB Comment: OMB is required to Families discussions with key staff, using make a decision concerning the uniform protocols. Pilot testing will be collection of information between 30 Submission for OMB Review; conducted at two sites to ensure that the and 60 days after publication of this Comment Request protocols and observations are valid and document in the Federal Register. Proposed Project reliable. On-site information collection Therefore, a comment is best assured of will occur three times: Near the having its full effect if OMB receives it Title: Communities Empowering beginning, at the mid-point, and at the within 30 days of publication. Written Youth Evaluation Study. end of the three-year CEY grant period. comments and recommendations for the OMB No. New Collection. Periodic telephone follow-ups, proposed information collection should Description: The information occurring approximately every six be sent directly to the following: Office collection activity proposed under this months, will be conducted between on- of Management and Budget, Paperwork notice will obtain information about site data collection in order to clarify or Reduction Project, Fax: 202–395–6974, lead and partner organizations funded update information collected earlier and Attn: Desk Officer for the under the Communities Empowering to prepare for future site visits.

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Respondents: Executive directors and organizations that received three-year key staff of faith based and community CEY grants beginning in 2007.

ANNUAL BURDEN ESTIMATES

Number of Number of responses Average Total burden Instrument respondents per respond- burden hours hours ent per response

Lead Organization Executive Director ...... 10 1 3.5 35 Lead Organization Key Staff ...... 20 1 2.5 50 Partner Organization Executive Director ...... 60 1 3.5 210 Partner Organization Key Staff ...... 60 1 2.5 150

Estimated Total Annual Burden SUMMARY: The Food and Drug DEPARTMENT OF HEALTH AND Hours: 445. Administration (FDA) is announcing HUMAN SERVICES Additional Information: Copies of the that a collection of information entitled proposed collection may be obtained by ‘‘Exceptions or Alternatives to Labeling Food and Drug Administration writing to the Administration for Requirements for Products Held by the [Docket No. FDA–2005–N–0464] (formerly Children and Families, Office of Strategic National Stockpile’’ has been Docket No. 2005N–0403) Planning, Research and Evaluation, 370 approved by the Office of Management L’Enfant Promenade, SW., Washington, and Budget (OMB) under the Paperwork Draft Guidance for Industry on DC 20447, Attn: ACF Reports Clearance Reduction Act of 1995. Providing Regulatory Submissions in Officer. E-mail address: Electronic Format—Drug [email protected]. All FOR FURTHER INFORMATION CONTACT: Establishment Registration and Drug requests should be identified by the title Jonna Capezzuto, Office of the Chief Listing; Availability of the information collection. Information Officer (HFA–710), Food AGENCY: Food and Drug Administration, OMB Comment: OMB is required to and Drug Administration, 5600 Fishers HHS. make a decision concerning the Lane, Rockville, MD 20857, 301–796– ACTION: Notice. collection of information between 30 3794. and 60 days after publication of this SUMMARY: The Food and Drug SUPPLEMENTARY INFORMATION: document in the Federal Register. In the Administration (FDA) is announcing the Therefore, a comment is best assured of Federal Register of December 28, 2007 availability of a draft guidance for having its full effect if OMB receives it (72 FR 73589), the agency announced industry entitled ‘‘Providing Regulatory within 30 days of publication. that the proposed information collection Submissions in Electronic Format— Written comments and had been submitted to OMB for review Drug Establishment Registration and recommendations for the proposed and clearance under 44 U.S.C. 3507. An Drug Listing.’’ This draft guidance information collection should be sent agency may not conduct or sponsor, and document establishes a Pilot Program directly to the following: Office of a person is not required to respond to, for industry to voluntarily submit drug Management and Budget, Paperwork a collection of information unless it establishment registration and drug Reduction Project, FAX: 202–395–6974, displays a currently valid OMB control listing information in an electronic Attn: Desk Officer for ACF. number. OMB has now approved the format that FDA can process, review, Dated: July 2, 2008. information collection and has assigned and archive. The document provides Brendan C. Kelly, OMB control number 0910–0614. The guidance on what required and FDA- OPRE Reports Clearance Officer. approval expires on June 30, 2011. A recommended information related to [FR Doc. E8–15502 Filed 7–10–08; 8:45 am] copy of the supporting statement for this drug establishment registration and drug BILLING CODE 4184–01–M information collection is available on listing to submit and on how to the Internet at http://www.reginfo.gov/ electronically prepare and submit the public/do/PRAMain. information to FDA. DEPARTMENT OF HEALTH AND DATES: Although you can comment on HUMAN SERVICES Dated: July 2, 2008. any guidance at any time (see 21 CFR Jeffrey Shuren, 10.115(g)(5)), to ensure that the agency Food and Drug Administration Associate Commissioner for Policy and considers your comments on this draft Planning. [Docket No. FDA–2006–N–0364] (formerly guidance before it begins work on the Docket Nos. 2006N–0466 and FDA–2007– [FR Doc. E8–15795 Filed 7–10–08; 8:45 am] final version of the guidance, submit 0650) BILLING CODE 4160–01–S written or electronic comments on the draft guidance, including comments Agency Information Collection regarding proposed collection of Activities; Announcement of Office of information, by September 9, 2008. Management and Budget Approval; ADDRESSES: Submit written requests for Exceptions or Alternatives to Labeling single copies of the draft guidance to the Requirements for Products Held by the Office of Critical Path Programs (HF– Strategic National Stockpile 18), Office of the Commissioner, Food AGENCY: Food and Drug Administration, and Drug Administration, 5600 Fishers HHS. Lane, Rockville, MD 20857. Send one self-addressed adhesive label to assist ACTION: Notice. the office in processing your requests.

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The draft guidance may also be obtained listing information is fundamental to guidance, along with accompanying by mail by calling the Office of Critical many processes FDA uses for protecting technical documents made available on Path Programs at 301–827–1512. See the the public health, including FDA’s Website3, describes how to SUPPLEMENTARY INFORMATION section for surveillance for serious drug adverse electronically create and submit SPL electronic access to the draft guidance reactions, inspection of facilities used files using a defined terminology for document. for drug manufacturing and processing, drug establishment registration and drug Submit written comments on the draft and monitoring drug products imported listing information (including labeling guidance to the Division of Dockets into the United States. Comprehensive, as specified under § 207.25) required Management (HFA–305), Food and Drug complete, up-to-date information is under section 510 of the act and part Administration, 5630 Fishers Lane, rm. critical for conducting these activities 207.4 In addition to comments on the 1061, Rockville, MD 20852. Submit with efficiency and effectiveness. draft guidance, FDA also is requesting electronic comments to http:// Electronic drug establishment comments on the adequacy and www.regulations.gov. registration and drug listing using usefulness of the technical documents FOR FURTHER INFORMATION CONTACT: computer systems to automate this that are available on FDA’s Web site. With publication of the guidance, Lonnie Smith, Office of Critical Path process will lead to significant FDA is launching a voluntary Pilot Programs (HF–18), Office of the improvements in the timeliness and Program that will enable industry to Commissioner, Food and Drug accuracy of the information over a paper-based system. This automation begin submitting drug establishment Administration, 5600 Fishers Lane, can be accomplished most efficiently registration and drug listing information Rockville, MD 20857, 301–594–0011. and effectively when the information is in electronic format. FDA plans to SUPPLEMENTARY INFORMATION: provided in a standardized format using complete the voluntary Pilot Program I. Background defined terminology. and begin receiving drug establishment FDA is adopting the use of extensible registration and drug listing information In the Federal Register of August 29, markup language (XML) files in a only electronically and in SPL format 2006 (71 FR 51276), FDA issued a standard Structured Product Labeling (including labeling) beginning June 1, proposed rule that would revise part (SPL)1 format as the standard format for 2009, unless a waiver is granted. Based 207 (21 CFR part 207) (hereinafter the exchange of drug establishment on comments received on the draft referred to as ‘‘the 2006 proposed rule’’). registration and drug listing guidance and information obtained This rule, when finalized, will fully information. Information in a properly during the voluntary Pilot Program, implement electronic drug created SPL file can be processed in FDA intends to issue a final guidance establishment registration and drug minutes. In addition, the use of SPL before June 1, 2009. listing. Subsequent to the publication of files with defined terminology will FDA is still in the process of the proposed rule, the U.S. Congress facilitate the receipt of more precise and considering comments submitted on the enacted the Food and Drug accurate information than was the case 2006 proposed rule. FDA intends to Administration Amendments Act of with paper submissions. Timely and revise, reissue, or revoke any final 2007 (FDAAA) (Public Law 110–85) . accurate product information will guidance as appropriate, to ensure FDAAA amended section 510 of the enhance FDA’s efforts to help ensure the consistency with the final rule. Federal Food, Drug, and Cosmetic Act integrity of the drug supply and protect This draft guidance is being issued (the act) (21 U.S.C. 360) (at section the public health. consistent with FDA’s good guidance 510(p)) to explicitly require the The draft guidance explains how to practices regulation (21 CFR 10.115). electronic submission by domestic and transition from submitting the required The draft guidance, when finalized, will foreign establishments of registration information on paper2 to submitting the represent the agency’s current thinking and listing information (including the required information using the SPL on the electronic submission of drug submission of updated information) standard, an electronic format that FDA establishment registration and drug required under section 510 of the act, can process, review, and archive. The listing. It does not create or confer any unless the Secretary of Health and draft guidance also describes how to rights for or on any person and does not Human Services grants a request for a voluntarily submit additional useful, operate to bind FDA or the public. An waiver if use of electronic means is not but not required, information that alternative approach may be used if reasonable for the person requesting the currently is often included by industry such approach satisfies the waiver. FDA intends to exercise in paper submissions. The draft requirements of the applicable statutes enforcement discretion and does not and regulations. intend to take action to enforce this 1 SPL standard is a Health Level Seven, Inc., electronic submission requirement, but standard for the exchange of product information II. Comments rather intends to pilot voluntary using extensible markup language (XML). Interested persons may submit to the 2 Drug establishment registration and drug listing electronic submission during a information is currently submitted in paper format Division of Dockets Management (see transition period. To assist in complying using Form FDA 2656 (Registration of Drug ADDRESSES) written or electronic with this new statutory provision, and Establishment/Labeler Code Assignment), Form comments regarding this document. to test FDA systems for processing such FDA 2657 (Drug Product Listing), and Form FDA Submit a single copy of electronic 2658 (Registered Establishments’ Report of Private submissions, FDA is announcing a Label Distributors). These forms are currently comments or two paper copies of any voluntary Pilot Program for available at http://www.fda.gov/opacom/ mailed comments, except that electronically submitting drug morechoices/fdaforms/fdaforms.html. individuals may submit one copy. establishment registration and drug 3 These technical documents are currently Comments are to be identified with the available at http://www.fda.gov/oc/datacouncil/ listing information and the availability spl.html. docket number found in brackets in the of a draft guidance for industry entitled 4 Under section 351(j) of the Public Health heading of this document. Received ‘‘Providing Regulatory Submissions in Service Act, the act and regulations issued under comments may be seen in the Division Electronic Format—Drug Establishment the act apply to biological products. However, this of Dockets Management between 9 a.m. guidance document does not apply to establishment Registration and Drug Listing.’’ registration and product listing information and 4 p.m., Monday through Friday. The information collected during drug required solely under 21 CFR parts 607, 807, and Please note that on January 15, 2008, establishment registration and drug 1271. the FDA Division of Dockets

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Management Web site transitioned to the act or subpart B of part 207 • In providing the labeling as the Federal Dockets Management (registrants). specified under § 207.25, for System (FDMS). FDMS is a manufacturers with a Web site for A. Reporting Burden Government-wide electronic docket voluntary reporting of adverse drug management system. Electronic The draft guidance describes how to reactions, the manufacturer’s telephone comments or submissions will be electronically create and submit SPL number and URL address that appear on accepted by FDA only through FDMS at files using defined terminology for the label under 21 CFR 201.57(a)(11); http://www.regulations.gov. establishment registration and drug • A site-specific D-U-N-S Number6 listing information (including labeling). for each entity (e.g., the registrant, III. Paperwork Reduction Act of 1995 Most information is already required to establishments, U.S. agent, importer); Under the Paperwork Reduction Act be submitted under section 510 of the • The NDC product code for the (44 U.S.C. 3501–3520) (the PRA), act, section 351 of the Public Health source drug that is repacked or Federal agencies must obtain approval Service Act, and part 207. relabeled; from the Office of Management and Drug establishment registration and • A reference drug if used as a basis Budget (OMB) for each collection of drug listing information and updates to for the strength of the listed drug; information they conduct or sponsor. such information, required under part • Distinctive characteristics of certain ‘‘Collection of information’’ is defined 207, and certain additional listed drugs, i.e., the flavor, the color, in 44 U.S.C. 3502(3) and 5 CFR recommended information are currently and image of the actual solid dosage 1320.3(c) and includes agency requests submitted in paper form using Form form; and or requirements that members of the FDA 2656 (Registration of Drug • Registrants may indicate that they public submit reports, keep records, or Establishment/Labeler Code view as confidential the registrant’s provide information to a third party. Assignment), Form FDA 2657 (Drug business relationship with an Section 3506(c)(2)(A) of the PRA (44 Product Listing), and Form FDA 2658 establishment, or an inactive ingredient. U.S.C. 3506(c)(2)(A)) requires Federal (Registered Establishments Report of In addition to the collection of agencies to provide a 60-day notice in Private Label Distributors) (collectively information, there is additional burden the Federal Register concerning each referred to as FDA Forms; 72 FR 67733, for the following activities: • proposed collection of information November 30, 2007). Preparing a standard operating before submitting the collection to OMB In addition to the information procedure (SOP) for the electronic for approval. To comply with this collected by the FDA Forms (72 FR submission of drug establishment requirement, FDA is publishing notice 67733, November 30, 2007), the draft registration and drug listing of the proposed collection of information; guidance addresses electronic • information set forth in this document. submission of other required Creating the SPL file, including With respect to the following information as follows: accessing and reviewing the technical collection of information, FDA invites • For registered foreign drug specifications and instructional comments on these topics: (1) Whether establishments, the name, address, and documents provided by FDA (accessible the proposed collection of information phone number of its U.S. agent at http://www.fda.gov/oc/datacouncil/ is necessary for the proper performance (§ 207.40(c)); spl.html); • Reviewing and selecting of FDA’s functions, including whether • The name of each importer that is appropriate terms and codes used to the information will have a practical known to the establishment (the U.S. create the SPL file (accessible at http:// utility; (2) the accuracy of FDA’s company or individual in the United www.fda.gov/oc/datacouncil/spl.html); estimate of the burden of the proposed States that is an owner, consignee, or • Obtaining the digital certificate collection of information, including the recipient of the foreign establishment’s used with FDA’s electronic submission validity of the methodology and drug that is imported into the United gateway (ESG) and uploading the SPL assumptions used; (3) ways to enhance States. An importer does not include the file for submission (accessible at http:// the quality, utility, and clarity of the consumer or patient who ultimately www.fda.gov/esg/default.htm); and information to be collected; and (4) purchases, receives, or is administered • Requests for waivers from the ways to minimize the burden of the the drug, unless the foreign electronic submission process as collection on respondents, including establishment ships the drug directly to described in the draft guidance. through the use of automated collection the consumer or the patient) (section techniques, when appropriate, and other 510(i)(1)(A) of the act); and B. Burden Estimates • forms of information technology. The name of each person who Reporting Burden—The estimates for Title: Draft Guidance for Industry on imports or offers for import (the name the number of respondents, annual Providing Regulatory Submissions in of each agent, broker, or other entity, frequency per response, and total Electronic Format—Drug Establishment other than a carrier, that the foreign annual responses indicated in table 1 of Registration and Drug Listing. drug establishment uses to facilitate the this document are based on our current Description of Respondents: import of their drug into the United estimates of the number of registrants Respondents to this collection of States) (section 510(i)(1)(A) of the act). and the number of submissions using information are foreign and domestic FDA also is recommending the the FDA Forms (OMB Control No. 0910– owners and operators of establishments voluntary submission of the following 0045). FDA estimates that it would take that engage in the manufacture, additional information, when an additional 2 hours per response (in preparation, propagation, compounding, applicable: addition to the estimated 2.5 hours per or processing (which includes, among • To facilitate correspondence other things, repackaging and between foreign establishments and 6 A D&B D-U-N-S Number is a unique nine- relabeling) of a drug or drugs5 and that FDA, the e-mail address for the U.S. digit sequence recognized as the universal standard are not exempt under section 510(g) of agent, and the telephone number(s) and for identifying and keeping track of over 100 million business worldwide. Submitting the site- e-mail address for the importer and specific D-U-N-S Number for an entity would 5 Means both human, including biological person who imports or offers for import provide by reference to the number certain business products, and animal drugs. their drug; information for that entity, e.g., address, parentage.

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response for registering, labeler code In certain cases, if it is unreasonable time for a mid-level manager to draft, requests, listing, and providing updates to expect a person to submit registration approve, and mail a letter. to the information approved under OMB and listing information electronically, Recordkeeping Burden—In table 2 of Control No. 0910–0045) for the FDA may grant a waiver from the this document, FDA estimates that 3,295 collection of information not currently electronic format requirement. Because (39 + 3,256) respondents would expend submitted using the FDA Forms, and to registrants will only need a computer a one-time burden of approximately 40 create and upload the SPL file. FDA and access to the Internet, FDA hours in preparing, reviewing, and anticipates that the hours per response envisions few instances in which approving an SOP for creating and will decrease over time due to the electronic submission of registration flexibility of submitting information for uploading the SPL file; and an estimated and listing information will not be registering multiple establishments or 1 hour annually to maintain the SOP as reasonable for the person requesting the listing multiple drugs in one SPL file needed. waiver and, thus, is estimating that FDA instead of submitting individual FDA FDA estimates the information Forms, and increasing familiarity with would grant one waiver annually. We collection burden, in addition to that the use of the standards and estimate that a one-time burden for approved under OMB Control No. 0910– terminology for creating the SPL file. requesting a waiver would be an hour of 0045 as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

No. of Annual Frequency Total Annual Hours per Activity Respondents per Response Responses Response Total Hours

New registrations, including new la- beler code requests 39 14 .72 574 2 1,148

Annual updates of registration infor- mation 3,256 2 .99 9,735 2 19,470

New drug listings 1,567 6.57 10,295 2 20,590

New listings for private label dis- tributors 146 10.06 1,469 2 2,938

June and December updates of all drug listing information 1,677 11 .21 18,799 2 37,598

Waiver requests 1 1 1 1 1

Total 81,745 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

TABLE 2.—ESTIMATED ANNUAL RECORDKEEPING BURDEN1

Annual Frequency Activity No. of per Record- Total Annual Hours per Total Hours Recordkeepers keeping Records Record

One-time preparation of SOP 3,295 1 3,295 40 131,800

SOP maintenance 3,295 1 3,295 1 3,295

Total 135,095 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

C. Costs Associated with Electronic access to the Internet, free use of for industry use. In addition to the Submission computers and Internet are usually software, FDA also provides technical available at public facilities, e.g., a assistance, and other resources, There are no capital costs or operating community library; or they may request and maintenance costs associated with terminology, and data standards a waiver from submitting the 8 the transition from paper to electronic regarding SPL files. information electronically. submissions. To create an SPL file and Once the SPL file is created, the Software is necessary to create a submit it to FDA, a registrant would registrant would upload the file through ‘‘document.’’ The SPL file or need the following tools: A computer, the ESG. A digital certificate is needed ‘‘document’’ may be created internally appropriate software, access to the to use the ESG. The digital certificate by a business with experience with SPL, Internet, knowledge of terminology and binds together the owner’s name and a or a business may use a user-friendly standards, and access to FDA’s pair of electronic keys (a public key and software (XForms)7 available at no cost Electronic Submission Gateway (ESG). a private key) that can be used to Registrants (and most individuals) encrypt and sign documents. However, 7 See http://www.fda.gov/oc/datacouncil/ have computers and Internet access xforms.html. a small fee of up to $20.00 is charged available for their use. If a business does 8 See http://www.fda.gov/oc/datacouncil/ for the digital certificate and the not have an available computer or spl.html. registrant may need to renew the

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certificate not less than annually. FDA ADDRESSES: Submit written requests for The objective of the GHTF is to is not calculating this small fee as cost single copies of these documents to the encourage convergence at the global of doing business because it is less than Division of Small Manufacturers, level of regulatory systems of medical or equal to the biannual courier costs International, and Consumer Assistance devices to facilitate trade while the registrant incurs for paper (HFZ–220), Center for Devices and preserving the right of participating submissions. Radiological Health, Food and Drug members to address the protection of public health by regulatory means IV. Electronic Access Administration, 1350 Piccard Dr., Rockville, MD 20850. Send one self- considered most suitable. One of the Persons with access to the Internet addressed adhesive label to assist that ways this objective is achieved is by may obtain the draft guidance at http:// office in processing your request, or fax identifying and developing areas of www.fda.gov/cder/guidance/index.htm, your request to 240–276–3151. See the international cooperation to facilitate http://www.fda.gov/cber/ SUPPLEMENTARY INFORMATION section for progressive reduction of technical and guidelines.htm, http://www.fda.gov/ information on electronic access to the regulatory differences in systems cvm/guidance/guidance.html, and documents. established to regulate medical devices. http://www.regulations.gov. Submit written comments concerning In an effort to accomplish these Dated: July 3, 2008. these documents to the Division of objectives, the GHTF formed five study Jeffrey Shuren, Dockets Management (HFA–305), Food groups to draft documents and carry on Associate Commissioner for Policy and and Drug Administration, 5630 Fishers other activities designed to facilitate Planning. Lane, rm. 1061, Rockville, MD 20852. global harmonization. This notice [FR Doc. E8–15801 Filed 7–10–08; 8:45 am] Submit electronic comments to http:// relates to documents that have been BILLING CODE 4160–01–S www.reguations.gov. Identify comments developed by two of the Study Groups with the docket number found in (1 and 5). brackets in the heading of this Study Group 1 was initially tasked DEPARTMENT OF HEALTH AND document. with the responsibility of identifying HUMAN SERVICES differences between various regulatory FOR FURTHER INFORMATION CONTACT: systems. In 1995, the group was asked For information regarding Study Food and Drug Administration to propose areas of potential Group 1:Ginette Y. Michaud, harmonization for premarket device [Docket No. FDA–2008–D–0372] Chairperson, GHTF, Study Group 1, regulations and possible guidelines that Office of Device Evaluation,Center Global Harmonization Task Force, could help lead to harmonization. As a for Devices and Radiological Health result of its efforts, this group has Study Groups 1 and 5; Proposed and (HFZ–480), Food and Drug Final Documents; Availability developed final document SG1/ Administration,9200 Corporate N44:2008. SG1/N44:2008 (final AGENCY: Food and Drug Administration, Blvd., Rockville, MD 20850, 240– document) entitled ‘‘Role of Standards’’ HHS. 276–3700. provides information on the use of ACTION: Notice. For information regarding Study standards by a manufacturer when Group 5:Herbert P. Lerner, GHTF, designing a medical device and, SUMMARY: The Food and Drug Study Group 5, Office of Device subsequently, when demonstrating that Administration (FDA) is announcing the Evaluation, Center for Devices and the device conforms to relevant availability of final and proposed Radiological Health (HFZ–470), essential safety and performance documents that have been prepared by Food and Drug Administration, criteria. Study Groups 1 and 5 of the Global 9200 Corporate Blvd., Rockville, Study Group 5 was initially tasked Harmonization Task Force (GHTF), MD 20850, 240–276–3641. with the responsibility of developing respectively. These documents SUPPLEMENTARY INFORMATION: documents on the content and format represent a harmonized proposal and for clinical investigation reports and on I. Background recommendation from the GHTF Study how to conduct and document a clinical Groups that may be used by FDA has participated in a number of evaluation. As a result of its efforts, this governments developing and updating activities to promote the international group has developed proposed their regulatory requirements for harmonization of regulatory document SG5(PD)/N37:2007. The medical devices. These documents are requirements. In September 1992, a proposed document SG5(PD)/N37:2007 intended to provide information only meeting was held in Nice, France by entitled ‘‘Clinical Investigations’’ and do not describe FDA’s current senior regulatory officials to evaluate introduces general principles of clinical regulatory requirements; elements of international harmonization. This investigations of medical devices and these documents may not be consistent meeting led to the development of the general principles when considering the with current U.S. regulatory organization now known as the GHTF to need for a clinical investigation of a requirements. In particular, FDA seeks facilitate harmonization. Subsequent medical device. This document comments on the advantages and meetings have been held in various primarily addresses the use of clinical disadvantages of the approaches in the locations throughout the world. investigations to support a marketing GHTF documents, particularly where The GHTF is a voluntary group of authorization application. they are not consistent with current representatives from national medical practices for the manufacture of device regulatory authorities and the II. Significance of Guidance products in the United States. regulated industry. Since its inception, These documents represent DATES: Submit written or electronic the GHTF has been comprised of recommendations from the GHTF study comments on these documents by representatives from five founding groups and do not describe regulatory October 9, 2008. After October 9, 2008, members grouped into three requirements. FDA is making these written comments or electronic geographical areas: Europe, Asia-Pacific, documents available so that industry comments may be submitted at any time and North America, each of which and other members of the public may to the contact persons listed in this actively regulates medical devices using express their views and opinions. In document. its own unique regulatory framework. particular, FDA seeks comments on the

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advantages and disadvantages of the DEPARTMENT OF HEALTH AND and Radiological Health (HFZ–332), approaches in the GHTF documents, HUMAN SERVICES Food and Drug Administration, 2094 particularly where they are not Gaither Rd., Rockville, MD 20850, 240– consistent with current practices for the Food and Drug Administration 276–0115. manufacture of products in the United [Docket No. FDA–2008–D–0137] (formerly SUPPLEMENTARY INFORMATION: States. Docket No. 2000D–1383) I. Background III. Electronic Access Guidance for Industry and Food and Consumers use condoms as a barrier Drug Administration Staff; Surveillance to reduce the risk of catching or Persons interested in obtaining a copy and Detention Without Physical spreading sexually transmitted diseases of these documents may do so by using Examination of Condoms; Availability and to reduce the risk of unintended the Internet. The Center for Devices and pregnancy. Defective condoms present a Radiological Health (CDRH) maintains AGENCY: Food and Drug Administration, potentially significant hazard to health an entry on the Internet for easy access HHS. for these users. to information including text, graphics, ACTION: Notice. FDA’s Center for Devices and and files that may be downloaded to a Radiological Health (CDRH) is aware personal computer with Internet access. SUMMARY: The Food and Drug that some foreign manufacturers and Updated on a regular basis, the CDRH Administration (FDA) is announcing the shippers of condoms repeatedly attempt home page includes device safety alerts, availability of the guidance entitled to import condoms that fail water leak Federal Register reprints, information ‘‘Surveillance and Detention Without testing, indicating a level of defects that on premarket submissions (including Physical Examination of Condoms.’’ does not satisfy the acceptable quality lists of approved applications and This guidance document provides criteria described in Compliance Policy manufacturers’ addresses), small information to FDA staff and industry Guide 7124.21. To address the issue of about FDA’s strategy for addressing manufacturer’s assistance, information firms that repeatedly offer further imports of condoms from on video conferencing and electronic nonconforming condoms for import to manufacturers/shippers whose condoms the United States, FDA has devised a submissions, Mammography Matters, have failed to meet FDA’s minimum risk-based tiered process for placing and other device-oriented information. acceptable quality criteria. The guidance condoms from identified manufacturers/ Information on the GHTF may be and the strategy are intended to help shippers on an import alert, for accessed at http://www.ghtf.org. The assure that condoms imported to the releasing individual shipments, and for CDRH Web site may be accessed at United States do not have defects that removing condoms from identified http://www.fda.gov/cdrh. could compromise their effectiveness manufacturers/shippers from the import IV. Comments and present a health hazard to alert and consequent potential detention consumers who rely on condoms for without physical examination. The Interested persons may submit to the protection from sexually transmitted process involves three levels of import Division of Dockets Management (see diseases as well as for contraception. surveillance and detention that may be ADDRESSES) written or electronic DATES: Submit written or electronic applied over a 24-month import comments regarding these documents. comments on this guidance at any time. surveillance cycle. Submit a single copy of electronic General comments on agency guidance This final guidance document comments or two paper copies of any documents are welcome at any time. supersedes the draft guidance entitled ‘‘Surveillance and Detention Without mailed comments, except that ADDRESSES: Submit written requests for Physical Examination of Condoms,’’ individuals may submit one paper copy. single copies of the guidance document which was announced in the Federal Comments are to be identified with the entitled ‘‘Surveillance and Detention Register on August 14, 2000 (65 FR docket number found in brackets in the Without Physical Examination of 49585). The comment period closed on heading of this document. Received Condoms’’ to the Division of Small November 13, 2000. comments may be seen in the Division Manufacturers, International, and We received a small number of of Dockets Management between 9 a.m. Consumer Assistance (HFZ–220), Center comments, and FDA has made some and 4 p.m., Monday through Friday. for Devices and Radiological Health, changes to the final guidance document Food and Drug Administration, 1350 Please note that on January 15, 2008, based on these comments. One Piccard Dr., Rockville, MD 20850. Send the FDA Division of Dockets comment indicated that the risk of one self-addressed adhesive label to Management Web site transitioned to detention is greater for high-volume assist that office in processing your manufacturers because they have many the Federal Dockets Management request, or fax your request to 240–276– System (FDMS). FDMS is a shipments and many FDA analyses in a 3151. See the SUPPLEMENTARY 24-month period and, therefore, a Government-wide, electronic docket INFORMATION section for information on greater cumulative risk of Type 1 management system. Electronic electronic access to the guidance. statistical sampling error resulting in comments or submissions will be Submit written comments concerning some shipments failing analyses even accepted by FDA only through FDMS at this guidance to the Division of Dockets though the shipments are acceptable. http://www.regulations.gov. Management (HFA–305), Food and Drug After analyzing the import data, FDA Dated: July 2, 2008. Administration, 5630 Fishers Lane, rm. agrees that, in theory, such sampling Jeffrey Shuren, 1061, Rockville, MD 20852. Submit errors are possible, although FDA electronic comments to http:// believes that such errors are unlikely to Associate Commissioner for Policy and www.regulations.gov. Identify Planning. affect most condom manufacturers comments with the docket number [FR Doc. E8–15797 Filed 7–10–08; 8:45 am] because they appear to be producing found in brackets in the heading of this condoms at a defect rate well below the BILLING CODE 4160–01–S document. acceptance criteria of the FDA test. FOR FURTHER INFORMATION CONTACT: J. Nevertheless, the revised document Michael Kuchinski, Center for Devices recognizes the opportunity for

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manufacturers to present evidence to http://www.fda.gov/cdrh. A search accepted by FDA only through FDMS at FDA in support of a reconsideration of capability for all CDRH guidance http://www.regulations.gov. their listing on the import alert if they documents is available at http:// Dated: July 1, 2008. believe for any reason that this listing is www.fda.gov/cdrh/guidance.html. Jeffrey Shuren, inappropriate, including as a result of Guidance documents are also available statistical sampling errors or because at http://www.regulations.gov. Associate Commissioner for Policy and Planning. previous defective shipments were IV. Paperwork Reduction Act of 1995 found during a previously concluded [FR Doc. E8–15765 Filed 7–10–08; 8:45 am] import surveillance cycle. This guidance refers to previously BILLING CODE 4160–01–S Another change in the final guidance approved collections of information is that the 24-month surveillance period found in FDA regulations. These will start when a firm is placed on Level collections of information are subject to DEPARTMENT OF HEALTH AND 1 rather than when a firm is removed review by the Office of Management and HUMAN SERVICES Budget (OMB) under the Paperwork from Level 1, as proposed in the draft Food and Drug Administration guidance. This change is being Reduction Act of 1995 (PRA) (44 U.S.C. implemented to simplify the process 3501–3520). The collections of [Docket No. FDA–2008–D–0186] (formerly and provide a ‘‘level playing field’’ for information in 21 CFR part 820 have Docket No. 2000D–1384) low-volume firms that export shipments been approved under OMB control of condoms to the United States less number 0910–0073. Guidance for Industry and Food and frequently than high-volume firms and The information collection Drug Administration Staff; Surveillance therefore generally take a longer time to recommendations included in this and Detention Without Physical obtain a number of consecutive passing document as part of the strategy for Examination of Surgeons’ and/or entries sufficient for removal from the addressing further shipments of Patient Examination Gloves; import alert. condoms from manufacturers/shippers Availability who repeatedly export defective II. Significance of Guidance AGENCY: Food and Drug Administration, condoms to the United States do not HHS. This guidance is being issued require OMB clearance under the PRA. consistent with FDA’s good guidance These collections of information are ACTION: Notice. practices regulation (21 CFR 10.115). excepted from the requirements of the SUMMARY: The Food and Drug The guidance represents the agency’s PRA under 5 CFR 1320.4(a)(2) and (c). Administration (FDA) is announcing the current thinking on ‘‘Surveillance and The guidance recommends information availability of the guidance entitled Detention Without Physical to be collected and submitted to FDA ‘‘Surveillance and Detention Without Examination of Condoms.’’ It does not ‘‘during the conduct of an Physical Examination of Surgeons’ and/ create or confer any rights for or on any administrative action, investigation, or or Patient Examination Gloves.’’ This person and does not operate to bind audit involving the agency against guidance document provides FDA or the public. An alternative specific individuals’’ (5 CFR information to FDA staff and industry approach may be used if such approach 1320.4(a)(2)) and ‘‘after a case file or about FDA’s strategy for addressing satisfies the requirements of the equivalent is opened with respect to a further imports of surgeons’ and patient applicable statute and regulations. particular party’’ (5 CFR 1320.4(c)) in examination gloves (medical gloves) order for that specific party to rebut the III. Electronic Access from manufacturers/shippers whose appearance of adulteration and Persons interested in obtaining a copy medical gloves have failed to meet consequently obtain release of a specific FDA’s minimum acceptable quality of the guidance may do so by using the shipment of condoms or removal of Internet. To receive ‘‘Surveillance and criteria. The guidance and the strategy specific condoms from listing on Import are intended to help assure that medical Detention Without Physical Alert. Examination of Condoms,’’ you may gloves imported to the United States either send an e-mail request to V. Comments meet FDA’s minimum acceptable [email protected] to receive an Interested persons may submit to the quality criteria and do not have defects electronic copy of the document or send Division of Dockets Management (see that could compromise their effectiveness and pose a health hazard a fax request to 240–276–3151 to receive ADDRESSES) written or electronic a hard copy. Please use the document comments regarding this document. to healthcare professionals and patients number 1139 to identify the guidance Submit a single copy of electronic who rely on medical gloves for you are requesting. comments or two paper copies of any protection from blood- and fluid-borne CDRH maintains an entry on the mailed comments, except that pathogens. Internet for easy access to information individuals may submit one paper copy. DATES: Submit written or electronic including text, graphics, and files that Comments are to be identified with the comments on this guidance at any time. may be downloaded to a personal docket number found in brackets in the General comments on agency guidance computer with Internet access. Updated heading of this document. Received documents are welcome at any time. on a regular basis, the CDRH home page comments may be seen in the Division ADDRESSES: Submit written requests for includes device safety alerts, Federal of Dockets Management between 9 a.m. single copies of the guidance document Register reprints, information on and 4 p.m., Monday through Friday. entitled ‘‘Surveillance and Detention premarket submissions (including lists Please note that on January 15, 2008, Without Physical Examination of of approved applications and the FDA Division of Dockets Surgeons’ and/or Patient Examination manufacturers’ addresses), small Management Web site transitioned to Gloves’’ to the Division of Small manufacturer’s assistance, information the Federal Dockets Management Manufacturers, International, and on video conferencing and electronic System (FDMS). FDMS is a Consumer Assistance (HFZ–220), Center submissions, Mammography Matters, Government-wide, electronic docket for Devices and Radiological Health, and other device-oriented information. management system. Electronic Food and Drug Administration, 1350 The CDRH Web site may be accessed at comments or submissions will be Piccard Dr., Rockville, MD 20850. Send

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one self-addressed adhesive label to changes to the final guidance document send an e-mail request to assist that office in processing your based on these comments. One [email protected] to receive an request, or fax your request to 240–276– comment indicated that the risk of electronic copy of the document or send 3151. See the SUPPLEMENTARY detention is greater for ‘‘high-volume’’ a fax request to 240–276–3151 to receive INFORMATION section for information on manufacturers because they have many a hard copy. Please use the document electronic access to the guidance. shipments and many FDA analyses in a number 1141 to identify the guidance Submit written comments concerning 24-month period and therefore a greater you are requesting. this guidance to the Division of Dockets cumulative risk of ‘‘Type 1’’ statistical CDRH maintains an entry on the Management (HFA–305), Food and Drug sampling error resulting in some Internet for easy access to information Administration, 5630 Fishers Lane, rm. shipments failing analyses even though including text, graphics, and files that 1061, Rockville, MD 20852. Submit the shipments are acceptable. After may be downloaded to a personal electronic comments to http:// analyzing the import data, FDA agrees computer with Internet access. Updated www.regulations.gov. Identify that in theory such sampling errors are on a regular basis, the CDRH home page comments with the docket number possible, although FDA believes that includes device safety alerts, Federal found in brackets in the heading of this such errors are unlikely to affect most Register reprints, information on document. medical glove manufacturers because premarket submissions (including lists FOR FURTHER INFORMATION CONTACT: they appear to be producing medical of approved applications and Diane Goldsberry, Center for Devices gloves at a defect rate well below the manufacturers’ addresses), small and Radiological Health (HFZ–333), acceptance criteria of the FDA test. manufacturer’s assistance, information Food and Drug Administration, 2094 Nevertheless, the revised document on video conferencing and electronic Gaither Rd., Rockville, MD 20850, 240– recognizes the opportunity for submissions, Mammography Matters, 276–0115. manufacturers to present evidence to and other device-oriented information. FDA in support of a reconsideration of SUPPLEMENTARY INFORMATION: The CDRH Web site may be accessed at their listing on the import alert if they http://www.fda.gov/cdrh. A search I. Background believe for any reason that this listing is capability for all CDRH guidance inappropriate, including as a result of Healthcare providers, professionals, documents is available at http:// statistical sampling errors or because and others use surgeons’ and/or patient www.fda.gov/cdrh/guidance.html. previous defective shipments were examination gloves (medical gloves) as Guidance documents are also available found during a previously concluded a barrier against the transmission of at http://www.regulations.gov. import surveillance cycle. blood- and fluid-borne pathogens. Another change in the final guidance IV. Paperwork Reduction Act of 1995 Defects in medical gloves, such as holes, is that the 24-month surveillance period This guidance refers to previously can compromise the effectiveness of the will start when a firm is placed on Level approved collections of information glove barrier integrity and pose a 1 rather than when a firm is removed found in FDA regulations. These potentially significant hazard to the from Level 1, as was proposed in the collections of information are subject to health of users as well as patients. original draft guidance. This change is review by the Office of Management and FDA’s Center for Devices and being implemented to simplify the Budget (OMB) under the Paperwork Radiological Health (CDRH) is aware process and provide a level playing field Reduction Act of 1995 (PRA) (44 U.S.C. from its import records that some for ‘‘low-volume’’ firms that export 3501–3520). The collections of foreign manufacturers and shippers shipments of gloves to the United States information in 21 CFR part 820 have repeatedly attempt to import into the less frequently than high-volume firms been approved under OMB control United States medical gloves that fail and therefore generally take a longer number 0910–0073. water leak testing and therefore do not time to obtain a number of consecutive meet the acceptable quality criteria passing entries sufficient for removal The information collection defined in 21 CFR 800.20. To address from the import alert. recommendations included in this this situation, FDA has devised a risk- document as part of the strategy for based tiered process for placing medical II. Significance of Guidance addressing further shipments of medical gloves from identified manufacturers/ This guidance is being issued gloves from manufacturers/shippers shippers on an import alert, for consistent with FDA’s good guidance who repeatedly export defective releasing individual shipments, and for practices regulation (21 CFR 10.115). medical gloves to the United States do removing medical gloves from the The guidance represents the agency’s not require OMB clearance under the identified manufacturers/shippers from current thinking on ‘‘Surveillance and PRA. These collections of information the import alert and consequent Detention Without Physical are excepted from the requirements of potential detention without physical Examination of Surgeons’ and/or Patient the PRA under 5 CFR 1320.4(a)(2) and examination. The process involves three Examination Gloves.’’ It does not create (c). The guidance recommends levels of import surveillance and or confer any rights for or on any person information to be collected and detention that may be applied over a 24- and does not operate to bind FDA or the submitted to FDA ‘‘during the conduct month import surveillance cycle. public. An alternative approach may be of an administrative action, This final guidance document used if such approach satisfies the investigation, or audit involving the supersedes the draft guidance entitled requirements of the applicable statute agency against specific individuals’’ (5 ‘‘Surveillance and Detention Without and regulations. CFR 1320.4(a)(2)) and ‘‘after a case file Physical Examination of Surgeons’ and/ or equivalent is opened with respect to or Patient Examination Gloves,’’ which III. Electronic Access a particular party’’ (5 CFR 1320.4(c)) in was announced in the Federal Register Persons interested in obtaining a copy order for that specific party to rebut the of July 26, 2000 (65 FR 45991). The of the guidance may do so by using the appearance of adulteration and comment period closed on October 24, Internet. To receive ‘‘Surveillance and consequently obtain release of a 2000. Detention Without Physical particular shipment of its medical We received a small number of Examination of Surgeons’ and/or Patient gloves or removal of its medical gloves comments, and FDA has made some Examination Gloves,’’ you may either from listing on import alert.

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V. Comments Location: The public workshop will accepted by FDA only through FDMS at Interested persons may submit to the be held at the Lister Hill Center http://www.regulations.gov. Division of Dockets Management (see Auditorium, Bldg. 38A, National Transcripts: Transcripts of the public ADDRESSES) written or electronic Institutes of Health, 8800 Rockville workshop may be requested in writing comments regarding this document. Pike, Bethesda, MD 20894. from the Freedom of Information Office Submit a single copy of electronic Contact Person: Rhonda Dawson, (HFI–35), Food and Drug comments or two paper copies of any Center for Biologics Evaluation and Administration, 5600 Fishers Lane, rm. mailed comments, except that Research (HFM–302), Food and Drug 6–30, Rockville, MD 20857, individuals may submit one paper copy. Administration, 1401 Rockville Pike, approximately 15 working days after the Comments are to be identified with the suite 200N, Rockville, MD 20852–1448, public workshop at a cost of 10 cents docket number found in brackets in the 301–827–6129, FAX: 301–827–2843, e- per page. A transcript of the public heading of this document. Received mail: [email protected]. workshop will be available on the comments may be seen in the Division Registration: Mail, fax or e-mail your Internet at http://www.fda.gov/cber/ of Dockets Management between 9 a.m. registration information (including minutes/workshop-min.htm. and 4 p.m., Monday through Friday. name, title, firm name, address, Dated: July 2, 2008. Please note that on January 15, 2008, telephone and fax numbers) to the Jeffrey Shuren, the FDA Division of Dockets contact person by August 25, 2008. Associate Commissioner for Policy and Management Web site transitioned to There is no registration fee for the Planning. the Federal Dockets Management public workshop. Early registration is [FR Doc. E8–15799 Filed 7–10–08; 8:45 am] System (FDMS). FDMS is a recommended because seating is limited BILLING CODE 4160–01–S Government-wide, electronic docket to 175 attendees. Registration on the day management system. Electronic of the public workshop will be provided comments or submissions will be on a space available basis beginning at DEPARTMENT OF HEALTH AND accepted by FDA only through FDMS at 7:30 a.m. HUMAN SERVICES http://www.regulations.gov. If you need special accommodations Food and Drug Administration Dated: July 1, 2008. due to a disability, please contact Rhonda Dawson (see Contact Person) at Jeffrey Shuren, least 7 days in advance. Request for Nominations for Voting Associate Commissioner for Policy and Members on Public Advisory SUPPLEMENTARY INFORMATION: Planning. Babesiosis Committee, Food Advisory Committee [FR Doc. E8–15766 Filed 7–10–08; 8:45 am] is a malaria-like illness caused by infection of erythrocytes with protozoan AGENCY: Food and Drug Administration, BILLING CODE 4160–01–S parasites belonging to the genus HHS. Babesia. Transfusion-transmitted ACTION: Notice. DEPARTMENT OF HEALTH AND babesiosis is caused by transfusion of SUMMARY: The Food and Drug HUMAN SERVICES blood or blood components collected from donors infected with Babesia Administration (FDA) is requesting Food and Drug Administration parasites. During the last 40 years, more nominations for voting members to than 60 cases of transfusion-transmitted serve on the Food Advisory Committee Approaches to Reduce Risk of babesiosis have been recognized in the (FAC), Center for Food Safety and Transfusion-Transmitted Babesiosis in United States. In fiscal years 2006 and Applied Nutrition (CFSAN). the United States; Public Workshop 2007, FDA received a total of five FDA has a special interest in ensuring reports of fatal transfusion-transmitted that women, minority groups, and AGENCY: Food and Drug Administration, individuals with disabilities are HHS. babesiosis (primary or contributory cause of death) in the United States. adequately represented on advisory ACTION: Notice of public workshop. The public workshop will facilitate a committees and, therefore, encourages The Food and Drug Administration scientific discussion on approaches to nominations of qualified candidates (FDA) is announcing a public workshop reduce the risk of transfusion- from these groups. entitled ‘‘Approaches to Reduce the transmitted babesiosis in the United DATES: Nominations received on or Risk of Transfusion-Transmitted States. Topics to be discussed include: before August 11, 2008 will be given Babesiosis in the United States.’’ The (1) Biology, pathogenesis, transmission first consideration for membership on purpose of the public workshop is to and epidemiology of babesiosis; (2) risk the Food Advisory Committee. discuss the risk and possible approaches of Babesia infections through Nominations received after August 11, to minimize the incidence of transfusion of blood and blood 2008 will be considered for nomination transfusion-transmitted babesiosis in the components; (3) laboratory testing to to the committee should nominees still United States. We are convening this detect Babesia infections; and, (4) be needed. workshop at the present time because possible approaches, including donor ADDRESSES: All Nominations for FDA has observed a recent increase in testing and donor deferral, to reduce the membership should be sent the number of reports of transfusion- risk of transfusion-transmitted electronically to [email protected] or transmitted babesiosis, thus warranting babesiosis while maintaining blood by mail to: Advisory Committee additional discussion to address this availability and safety. Oversight and Management Staff, 5600 blood safety issue. The public workshop Please note that on January 15, 2008, Fisher Lane (HF–4), rm. 15A–12, will feature presentations and the FDA Division of Dockets Rockville, MD 20857. roundtable discussions led by experts Management Web site transitioned to FOR FURTHER INFORMATION CONTACT: from academic institutions, government, the Federal Dockets Management Regarding all nomination questions for and industry. System (FDMS). FDMS is a membership, the primary contact is Date and Time: The public workshop Government-wide, electronic docket Carolyn Jeletic, Center for Food Safety will be held on September 12, 2008, management system. Electronic and Applied Nutrition, 301–436–1913, from 7:30 a.m. to 5:30 p.m. comments or submissions will be FAX: 301–436–2633, e-mail:

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[email protected]. This notice is issued under the Estimated Funds Available: The total Information about becoming a member Federal Advisory Committee Act (5 amount identified for Fiscal Year (FY) on an FDA advisory committee can also U.S.C. app.2) and 21 CFR part 14 2008 is $600,000 for approximately be obtained by visiting FDA’s Web site relating to advisory committees. twelve (12) Tribes. Awards under this by using the following link: http:// Dated: July 3, 2008. announcement are subject to the www.fda.gov/oc/advisory/default.htm. Randall W. Lutter, availability of funds. Anticipated Number of Awards: The SUPPLEMENTARY INFORMATION: FDA is Deputy Commissioner for Policy. requesting nomination for voting estimated number of awards to be [FR Doc. E8–15839 Filed 7–10–08; 8:45 am] funded is approximately 12. members on the Food Advisory BILLING CODE 4160–01–S Committee. Project Period: 12 months. Award Amount: $50,000 per year. I. Function of the Food Advisory Programmatic Involvement: TSGP Committee DEPARTMENT OF HEALTH AND HUMAN SERVICES funds will be awarded as cooperative The committee provides advice, agreements and will have substantial primarily to the Commissioner of Food Indian Health Service IHS programmatic involvement to and Drugs and other appropriate establish a basic understanding of officials, on emerging food safety, food Tribal Self-Governance Program; PSFAs and associated funding at the science, nutrition, and other food- Planning Cooperative Agreement Service Unit, Area, and Headquarters related health issues that the FDA levels. Announcement Type: New. The IHS roles and responsibilities considers of primary importance for its Funding Announcement Number: will include: food and cosmetics programs. The HHS–2008–IHS–TSGP–0002. • committee may be charged with Catalog of Federal Domestic Providing a description of PSFAs reviewing and evaluating available data Assistance Number(s): 93.2 10. and associated funding at all levels, and making recommendations on Key Dates: including funding formulas and matters such as those relating to: (1) Application Deadline Date: August methodologies related to determining 15, 2008. Tribal shares. Broad scientific and technical food or • cosmetic related issues, (2) the safety of Review Date: August 25–26, 2008. Identifying IHS staff who will new foods and food ingredients, (3) Earliest Anticipated Start Date: consult with applicants on methods labeling of foods and cosmetics, (4) September 1, 2008. currently used to manage and deliver health care. nutrient needs and nutritional I. Funding Opportunity Description • adequacy, and (5) safe exposure limits Providing applicants with statutes, The purpose of the program is to for food contaminants. The committee regulations and policies that provide award cooperative agreements that may also be asked to provide advice and authority for administering IHS provide planning resources to Tribes make recommendations on ways of programs. interested in participating in the Tribal The grantee roles and responsibilities communicating to the public the Self-Governance Program (TSGP) as potential risks associated with these are critical to the success of the program authorized by Title V, Tribal Self- and will include: issues and on approaches that might be Governance Amendments of 2000 of the • considered for addressing the issues. Researching and analyzing the Indian Self-Determination and complex IHS budget, to gain a thorough II. Criteria for Voting Members Education Assistance Act of Public Law understanding of funding distribution at (Pub. L.) 93–638, as amended. There is FDA is requesting nominations of all levels to determine which PSFAs the limited competition under this Tribe may elect to assume. voting members with appropriate announcement because the authorizing • expertise in the following specialties: Establishing a process by which legislation restricts eligibility to Tribes Tribes can effectively approach the IHS Microbiology, food technology, and that meet specific criteria (Refer to nutrition. to identify programs and associated Section III.1.A., Eligible Applicants in funding which could be incorporated III. Nomination Procedures this announcement). The TSGP is into their current programs. designed to promote self-determination • Determining the Tribe’s share of Pursuant to 21 CFR 14.84(d), any by allowing Tribes to assume more interested person may nominate one or each PSFA and evaluating the current control of Indian Health Service (IHS) level of health care services being more qualified persons for membership programs and services through on the advisory committee. Self- provided to make an informed decision compacts negotiated with the IHS. The on new program assumption(s). nominations are also accepted. Planning Cooperative Agreement allows Nominations shall include the name of a Tribe to gather information to III. Eligibility Information the committee, a complete curriculum determine the current types of 1. Eligible Applicants vitae of each nominee, and their current Programs, Services, Functions, and business address and telephone number Activities (PSFAs), and related funding To be eligible for a Planning and e-mail address if available. Each available at the Service Unit, Area, and Cooperative Agreement under this nomination shall state that the nominee Headquarters levels and provide the announcement, an applicant must meet is aware of the nomination, is willing to opportunity to improve and enhance the all of the following criteria: serve as a member, and appears to have healthcare delivery system to better A. Be a federally-recognized Tribe as no conflict of interest that would meet the needs of the Tribal community. defined in Title V, Pub. L. 106–260, preclude membership. FDA will ask the This program is described at 93.210 in Tribal Self-Governance Amendments of potential candidates to provide detailed the Catalog of Federal Domestic 2000, of the Indian Self-Determination information concerning such matters as Assistance (CFDA). and Education Assistance Act (the Act), financial holdings, employment, and Pub. L. 93–638, as amended. However, research grants and/or contracts to II. Award Information Alaska Native Villages or Alaska Native permit evaluation of possible sources of Type of Awards: Cooperative Village Corporations are not eligible if conflict of interest. Agreement. they are located within the area served

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by an Alaska Native regional health TSGP–0002, as prescribed by Pub. L. process, the applicant should contact entity already participating in compact 98–502, the Single Audit Act, as Michelle G. Bulls, Grants Policy Staff status (25 U.S.C. 458aaa-2(e)). Those amended (see OMB Circular A–133, (GPS), fifteen days prior to the Tribes not represented by a self- revised June 24, 1997, Audits of States, application deadline and advise of the governance Tribal consortium compact, Local Governments, and Non-Profit difficulties that your organization is within their area, may still be Organizations), for the three previous experiencing. The grantee must obtain considered to participate in the TSGP. fiscal years. If this documentation is not prior approval, in writing (e-mails are 2. Cost Sharing or Matching received by August 15, 2008, the acceptable) allowing the paper application will be considered as submission. If submission of a paper The Tribal Self-Governance Planning incomplete and will be returned to the application is requested and approved, Cooperative Agreement announcement applicant without further consideration. the original and two copies may be sent does not require matching funds or cost D. If application budgets exceed the to the appropriate grants contact that is sharing to participate in the competitive stated dollar amount that is outlined listed in Section IV.1. above. grant process. within this announcement, the Applications not submitted through 3. Other Requirements application will be returned to the Grants.gov, without an approved applicant without further consideration. waiver, may be returned to the applicant The following documentation is without review or consideration. Late required (if applicable): IV. Application and Submission A. This program is described at Information applications will not be accepted for processing, will be returned to the 93.210 in the CFDA. 1. Applicant package and detailed B. Tribal Resolution—Submit a Tribal applicant, and will not be considered instructions for this announcement may resolution from the governing body for funding. be found in Grants.gov (http:// authorizing the submission of the 4. Intergovernmental Review: www.grants.gov) or at: http:// application for the Tribal Self- Executive Order 12372 requiring www.ihs.gov/NonMedicalPrograms/ Governance Planning Cooperative intergovernmental review is not gogp/gogp_funding.asp. Agreement. Tribal Consortia applying applicable to this program. Information regarding the electronic for a Tribal Self-Governance Planning 5. Funding Restrictions: A. Tribes are application process may be directed to Cooperative Agreement shall submit only eligible to be awarded one Tribal Michelle G. Bulls, at (301) 443–6290. Self-Governance Planning Cooperative Tribal Council Resolutions from each Information regarding this Tribe in the consortium. Draft Agreement award. announcement may also be found on the B. Each planning cooperative resolutions, submitted with the Office of Tribal Self-Governance Web application, are acceptable in lieu of an agreement shall not exceed $50,000. The site at: http://www.ihs.gov/ available funds are inclusive of direct official signed resolution. However, an NonMedicalPrograms/SelfGovernance/ official signed Tribal resolution must be and appropriate indirect costs. index.cfm?module=planning_ C. The available funds are inclusive of received by the Division of Grants negotiation. Operations (DGO), Attn: John Hoffman, direct and indirect costs. 2. Content and Form of Application D. IHS will not acknowledge receipt 801 Thompson Avenue, TMP 360, Submission: of applications. Rockville, MD 20852, by Monday, • Be single spaced. 6. Other Submission Requirements: August 25, 2008. If an official signed • Be typewritten. The application must comply with the resolution is not received by Monday, • Have consecutively numbered following: August 25, 2008, the application will be pages. A. Table of Contents. considered incomplete and will be • Use black type not smaller than 12 B. Abstract (one page)—Summarizes returned without consideration. characters per one inch. the project. C. Demonstrate, for three fiscal years, • Be printed on one side only of C. Narrative (no more than 7 pages) financial stability and financial standard size 81⁄2’’ x 11’’ paper. and should include the following: management capability, which is • Contain a narrative that does not (1) Background information on the defined as no uncorrected significant exceed seven typed pages that includes Tribe. and/or material audit exceptions in the the other submission requirements (2) Proposed scope of work, required annual audit of the Indian below. The seven page narrative does objectives, and activities that provide a Tribe’s self-determination contracts or not include the work plan, standard description of what will be self-governance funding agreements forms, Tribal resolutions or letters of accomplished including a one-page with any Federal agency. Applicants are support (if necessary), table of contents, Time Frame Chart. required to submit a current version of budget, budget justifications, narratives, D. Budget narrative and justification. the organization’s audit report. The and/or other appendix items. E. Tribal Resolution. applicants may scan the documents and F. Appendices to include: Public Policy Requirements attach them to the electronic (1) Resumes or position descriptions application. If the applicant determines All Federal-wide public policies of key staff. that the audit reports are too lengthy, apply to IHS grants with exception of (2) Contractors/Consultants resumes the applicants may submit them the Lobbying and Discrimination public or qualifications and scope of work. separately via regular mail by the due policy. Include Letter of Intent (3) Current Indirect Cost Agreement. date, August 15, 2008. Applicants, requirements under Public Policy (4) Organizational Chart (Optional). sending in audits via regular mail, must Requirements. Electronic Submission—The preferred submit two copies of the audits for three 3. Submission Dates and Times: method for receipt of applications is previous fiscal years under separate Applications must be submitted electronic submission through cover directly to the Division of Grants electronically through Grants.gov by 12 Grants.gov. However, should any Operations, Attn: John Hoffman, 801 midnight Eastern Standard Time (EST). technical challenges arise regarding the Thompson Avenue, TMP 360, Rockville, If technical challenges arise and the submission, please contact Grants.gov MD 20852, referencing the Funding applicant is unable to successfully Customer Support at 1–800–518–4726 Opportunity Number, HHS–2008–IHS– complete the electronic application or [email protected]. The Contact

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Center hours of operation are Monday- • To use Grants.gov, you, as the Applicants may register by calling Friday from 7 a.m. to 9 p.m. EST. If you applicant, must have a Data Universal 1–888–227–2423. Please review and require additional assistance please call Numbering System (DUNS) Number and complete the CCR Registration (301) 443–6290 and identify the need register in the CCR. You should allow a Worksheet located on http:// for assistance regarding your Grants.gov minimum often days working days to www.grants.gov/CCRRegister. More application. Your call will be complete CCR registration. See below on detailed information regarding these transferred to the appropriate grants how to apply. registration processes can be found at staff member. The applicant must seek • You must submit all documents http://www.grants.gov. assistance at least fifteen days prior to electronically, including all information V. Application Review Information the application deadline. Applicants typically included on the SF–424 and that do not adhere to the timelines for all necessary assurances and 1. Criteria Central Contractor Registry (CCR) and/ certifications. A. Goals and Objectives of the Project or Grants.gov registration and/or • Please use the optional attachment (30 Points) requesting timely assistance with feature in Grants.gov to attach technical issues will not be a candidate additional documentation that may be Are the goals and objectives for paper applications. requested by IHS. measurable; are they consistent with the To submit an application • Your application must comply with purpose of the program and the needs electronically, please use the http:// any page limitation requirements of the people to be served, and are they www.Grants.gov and select ‘‘Apply for described in the program achievable as demonstrated by the Grants’’ link on the home page. announcement. proposed time frame chart? • Download a copy of the application After you electronically submit B. Methodology (20 Points) package on the Grants.gov Web site, your application, you will receive an complete it offline and then upload and automatic acknowledgment from Describe fully and clearly the submit the application via the Grants.gov that contains a Grants.gov methodology and activities that will be Grants.gov site. You may not e-mail an tracking number. The IHS DGO will used to accomplish the goals and electronic copy of a grant application to retrieve your application from objectives of the project. IHS. Grants.gov. The IHS DGO will not notify C. Management of Health Program(s) (10 Please be reminded of the following: applicants that the application has been Points) • Under the new IHS application received. Does the applicant propose an submission requirements, paper • You may access the electronic improved approach to managing the applications are not the preferred application for this program on http:// health program(s) and state/demonstrate method. However, if you have technical www.Grants.gov. problems submitting your application • You may search for the how the delivery of quality health on-line, please directly contact downloadable application package by services will be maintained under self- Grants.gov Customer Support at: http:// either the CFDA number or the Funding governance? www.grants.gov/CustomerSupport. Opportunity Number. Both numbers are D. Organizational Capabilities and • Upon contacting Grants.gov, obtain identified in the heading of this Qualifications (25 Points) a tracking number as proof of contact. announcement. Describe the organizational structure The tracking number is helpful if there • The applicant must provide the are technical issues that cannot be of the Tribe and their ability to manage Funding Opportunity Number: HHS– the proposed project. Include resumes resolved and a waiver request from GPS 2008–IHS–TSGP–0002. or position descriptions of key staff must be obtained. E-mail applications will not be showing requisite experience and • If it is determined that a formal accepted under this announcement. waiver is necessary, the applicant must expertise and, where applicable, include submit a request, in writing (e-mails are DUNS Number resumes and scope of work for acceptable), to [email protected] Applicants are required to obtain a consultants that demonstrate experience that includes a justification for the need DUNS number from Dun and Bradstreet and expertise relevant to the project. to deviate from the standard electronic to apply for a grant or cooperative E. Budget and Budget Justification (15 submission process. Upon receipt of agreement from the Federal Points) approval, a hard-copy application Government. The DUNS number is a Submit a line-item budget with a package must be downloaded by the nine-digit identification number, which narrative justification for all applicant from Grants.gov and sent uniquely identifies business entities. expenditures identifying reasonable and directly to John Hoffman, Division of Obtaining a DUNS number is easy and allowable costs necessary to accomplish Grants Operations (DGO), 801 there is no charge. To obtain a DUNS the goals and objectives as outlined in Thompson Avenue, TMP 360, Rockville, number, access http:// the project narrative. MD 20852 by the due date, August 15, www.dunandbradstreet.com or call 2008. 1–866–705–5711. Interested parties may 2. Review and Selection Process • Upon entering the Grants.gov site, wish to obtain their DUNS number by In addition to the above criteria/ there is information available outlining phone to expedite the process. requirements, applications are the requirements to the applicant Applications submitted electronically considered according to the following: regarding electronic submission of an must also be registered with the CCR. A application through Grants.gov, as well DUNS number is required before CCR A. Application Submission as the hours of operation. We strongly registration can be completed. Many (1) The applicant and proposed encourage all applicants not to wait organizations may already have a DUNS project type is eligible in accordance until the deadline date to begin the number. Please use the number listed with this cooperative agreement application process through Grants.gov above to investigate whether or not your announcement. as the registration process for CCR and organization has a DUNS number. (2) The applicant has not previously Grants.gov could take up to fifteen Registration with the CCR is free of received a Tribal Self-Governance working days. charge. Planning Cooperative Agreement award.

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(3) Abstract, narrative, budget, The NoA is the legally binding 4. Reporting required forms, appendices and other document. Applicants who are A. Progress Report. Program progress material submitted meet the approved but unfunded or disapproved reports are required semi-annually. requirements of the announcement based on their Objective Review score These reports must be submitted within allowing the review panel to undertake will receive a copy of the Final 30 days of the end of the half year and an in-depth evaluation. Executive Summary which identifies will include a brief comparison of actual the weaknesses and strengths of the B. Competitive Review of Eligible accomplishments to the goals application submitted. Applications established for the period, or, if Applications meeting eligibility 2. Administrative Requirements applicable, provide sound justification for the lack of progress, and other requirements that are complete, Grants are administrated in responsive, and conform to this program pertinent information as required. A accordance with the following final report must be submitted within 90 announcement will be reviewed for documents: merit by the Objective Review days of expiration of the budget/project • This Program Announcement. period. Committee (ORC) appointed by the IHS • to review and make recommendations 45 CFR Part 92, ‘‘Uniform B. Financial Status Report. Semi- on these applications. The review will Administrative Requirements for Grants annual financial status reports must be be conducted in accordance with the and Cooperative Agreements to State, submitted within 30 days of the end of IHS Objective Review Guidelines. The Local and Tribal Governments,’’ or 45 the half year. Final financial status technical review process ensures CFR Part 74, ‘‘Uniform Administrative reports are due within 90 days of selection of quality projects in a Requirements for Awards to Institutions expiration of the budget/project period. national competition for limited of Higher Education, Hospitals, Other Standard Form 269 (long form) will be funding. Applications will be evaluated Non-Profit Organizations, and used for financial reporting. The final and rated on the basis of the evaluation Commercial Organizations.’’ SF–269 must be verified from the • criteria listed in Section V.1. The Grants Policy Guidance: HHS grantee’s records on how the value was criteria are used to evaluate the quality Grants Policy Statement, January 2007. derived. Grantees must submit reports of a proposed project, determine the • Cost Principles: OMB Circular A– in a reasonable period of time. likelihood of success, and assign a 87, ‘‘Cost Principles for State, Local, and Failure to submit required reports numerical score to each application. Indian Tribal Governments’’ (Title 2 within the time allowed may result in The scoring of approved applications Part 225). suspension or termination of an active grant, withholding of additional awards will assist the IHS in determining which • Administrative Requirements: OMB for the project, or other enforcement proposals will be funded if the amount Circular A–122, ‘‘Non-Profit actions such as withholding of of TSGP funding is not sufficient to Organizations’’ (Title 2 Part 230). support all approved applications. • payments or converting to the Audit Requirements: OMB Circular reimbursement method of payment. Applications recommended for A–133, ‘‘Audits of States, Local approval, having a score of 60 or above Continued failure to submit required Governments, and Non-Profit reports may result in one or both of the by the ORC are forwarded to the DGO Organizations.’’ for cost analysis and further following: (1) the imposition of special recommendation. The program official 3. Indirect Costs award provisions; and (2) the non- funding or non-award of other eligible forwards the recommended approval list This section applies to all grant to the IHS Director for final review and projects or activities. This applies recipients that request reimbursement of whether the delinquency is attributable approval. Applications scoring below 60 indirect costs in their grant application. points will be disapproved. to the failure of the grantee organization In accordance with HHS Grants Policy or the individual responsible for Note: In making final selections, the IHS Statement, Part 11–27, IHS requires preparation of the reports. Director will consider the ranking factor and applicants to have a current indirect 5. Telecommunication for the hearing the status of the applicant’s three previous cost rate agreement in place prior to years’ single audit reports. The comments impaired is available at: TTY 301–443– award. The rate agreement must be 6394. from the ORC will be advisory only. The IHS prepared in accordance with the Director will make the final decision on applicable cost principles and guidance VII. Agency Contact(s) awards. as provided by the cognizant agency or 1. Questions on the programmatic VI. Award Administration Information office. A current rate means the rate issues may be directed to: Matt Johnson, covering the applicable activities and Policy Analyst Office of Tribal Self- 1. Award Notices the award budget period. If the current Governance Telephone No.: 301–443– The Notice of Award (NoA) will be rate is not on file with the DGO at the 7821 Fax No.: 301–443–1050 E-mail: initiated by the DGO and will be mailed time of award, the indirect cost portion [email protected]. via postal mail to each entity that is of the budget will be restricted and not 2. Questions on grants management approved for funding under this available to the recipient until the and fiscal matters may be directed to: announcement. The NoA will be signed current rate is provided to DGO. John Hoffman, Grants Management by the Grants Management Officer and Generally, indirect costs rates for IHS Specialist Division of Grants Operations this is the authorizing document for grantees are negotiated with the Telephone No.: 301–443–5204 Fax No.: which funds are dispersed to the Division of Cost Allocation (DCA) 301–443–9602 E-mail: approved entities. The NoA will serve http://rates.psc.gov/ and the Department [email protected]. as the official notification of the grant of Interior (National Business Center) award and will reflect the amount of http://www.nbc.gov/acquisition/ics/ VIII. Other Information Federal funds awarded, the purpose of icshorme.html. If your organization has The Public Health Service (PHS) the grant, the terms and conditions of questions regarding the indirect cost strongly encourages all cooperative the award, the effective date of the policy, please contact the DGO at 301– agreement and contract recipients to award, and the budget/project period. 443–5204. provide a smoke-free workplace and

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promote the non-use of all tobacco Place: Hyatt Regency Bethesda, One Attendance by the public will be products. In addition, Pub. L. 103–227, Bethesda Metro Center, 7400 Wisconsin limited to space available. Public the Pro-Children Act of 1994, prohibits Avenue, Bethesda, MD 20814. comments are welcome. Please smoking in certain facilities (or in some Contact Person: Keary A Cope, PhD, communicate with the CSAP National Scientific Review Administrator, Review cases, any portion of the facility) in Branch/DERA, National Heart, Lung, and Advisory Council Designated Federal which regular or routine education, Blood Institute, 6701 Rockledge Drive, Room Official, Tia Haynes (see contact library, day care, health care or early 7190, Bethesda, MD 20892–7924, (301) 435– information below), to make childhood development services are 2222, [email protected]. arrangements to attend, to comment or provided to children. This is consistent Name of Committee: National Heart, Lung, to request special accommodations for with the PHS mission to protect and and Blood Institute Special Emphasis Panel; persons with disabilities. advance the physical and mental health Mentored Clinical Scientist Development and Substantive program information, a of the American people. Independent Scientist Awards. summary of the meeting, and a roster of Date: July 22–23, 2008. Dated: July 2, 2008. Committee members may be obtained Time: 8 a.m. to 5 p.m. either by accessing the SAMHSA Robert G. McSwain, Agenda: To review and evaluate grant Committee’s Web site at http:// applications. Director, Indian Health Service. www.samhsa.gov/council/csap/ [FR Doc. E8–15629 Filed 7–10–08; 8:45 am] Place: Crystal City Courtyard Marriott, 2899 Jefferson Davis Highway, Arlington, VA csapnac.aspx as soon as possible after BILLING CODE 4165–16–M 22202. the meeting, or by contacting Ms. Contact Person: Rina Das, PhD, Scientific Haynes. The transcript for the open Review Administrator, Review Branch/ portion of the meeting will also be DEPARTMENT OF HEALTH AND DERA, National Heart, Lung, and Blood available on the SAMHSA Committee’s HUMAN SERVICES Institute, 6701 Rockledge Drive, Room 7200, Web site within three weeks after the Bethesda, MD 20892–7924, 301–435–0297, meeting. National Institutes of Health [email protected]. Committee Name: Substance Abuse and (Catalogue of Federal Domestic Assistance Mental Health Services Administration National Heart, Lung, and Blood Program Nos. 93.233, National Center for Center for Substance Abuse Prevention Institute; Notice of Closed Meetings Sleep Disorders Research; 93.837, Heart and National Advisory Council Vascular Diseases Research; 93.838, Lung Date/Time/Type: July 29, 2008, 9 a.m. to Pursuant to section 10(d) of the Diseases Research; 93.839, Blood Diseases 4:30 p.m.: Open. July 30, 2008. From: 9 a.m. Federal Advisory Committee Act, as and Resources Research, National Institutes to 9:30 a.m.: Open. From: 9:30 a.m. to 12 of Health, HHS) amended (5 U.S.C. Appendix 2), notice p.m.: Closed. is hereby given of the following Dated: June 26, 2008. Place: 1 Choke Cherry Road, Sugarloaf and meetings. Jennifer Spaeth, Seneca Conference Rooms, Rockville, The meetings will be closed to the Director, Office of Federal Advisory Maryland 20857. public in accordance with the Committee Policy. For Further Information Contact: Tia provisions set forth in sections Haynes, Designated Federal Official, [FR Doc. E8–15374 Filed 7–10–08; 8:45 am] SAMHSA/CSAP National Advisory Council, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., BILLING CODE 4140–01–M 1 Choke Cherry Road, Room 4–1066, as amended. The grant applications and Rockville, MD 20857, Telephone: (240) 276– the discussions could disclose 2436; FAX: (240) 276–2430, E-mail: confidential trade secrets or commercial DEPARTMENT OF HEALTH AND [email protected]. property such as patentable material, HUMAN SERVICES and personal information concerning Toian Vaughn, individuals associated with the grant Substance Abuse and Mental Health Committee Management Officer, Substance applications, the disclosure of which Services Administration Abuse and Mental Health Services Administration. would constitute a clearly unwarranted invasion of personal privacy. Center for Substance Abuse [FR Doc. E8–15756 Filed 7–10–08; 8:45 am] Prevention; Notice of Meeting BILLING CODE 4162–20–P Name of Committee: National Heart, Lung, and Blood Institute Special Emphasis Panel; Pursuant to Public Law 92–463, NHLBI-Patient Oriented Research (K23, 24, notice is hereby given that the DEPARTMENT OF HEALTH AND and 25’s) Career Enhancement Awards. Substance Abuse and Mental Health HUMAN SERVICES Date: July 21–22, 2008. Services Administration (SAMHSA) Time: 7:30 a.m. to 5:30 p.m. Center for Substance Abuse Prevention Substance Abuse and Mental Health Agenda: To review and evaluate grant Services Administration applications. National Advisory Council will meet on July 29 and July 30, 2008. Place: Crystal City Courtyard Marriott, Center for Substance Abuse A portion of the meeting will be open 2899 Jefferson Davis Highway, Arlington, VA Treatment; Notice of Meeting 22202. and will include discussion of the Contact Person: Mark Roltsch, PhD, Center’s policy issues, and current Pursuant to Public Law 92–463, Scientific Review Administrator, Review administrative, legislative and program notice is hereby given that the Branch/DERA, National Heart, Lung, and developments. Substance Abuse and Mental Health Blood Institute, 6701 Rockledge Drive, Room The meeting will also include the Services Administration (SAMHSA) 7192, Bethesda, MD 20892–7924, 301–435– 0287, [email protected]. review, discussion, and evaluation of Center for Substance Abuse Treatment grant applications. Therefore a portion (CSAT) National Advisory Council will Name of Committee: National Heart, Lung, and Blood Institute Special Emphasis Panel; of the meeting will be closed to the meet on July 31, 2008 from 1 p.m. to 3 Small Research Grants (R03’s). public as determined by the p.m. via teleconference. Date: July 21–22, 2008. Administrator, SAMHSA, and in The meeting will include discussion Time: 8:30 a.m. to 5 p.m. accordance with Title 5 U.S.C. and evaluation of grant applications Agenda: To review and evaluate grant 552b(c)(6) and 5 U.S.C. App. 2, Section reviewed by Initial Review Groups. applications. 10(d). Therefore, the meeting will be closed to

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the public as determined by the Affairs, Office of Management and immigration enforcement by using Administrator, SAMHSA, in accordance Budget. Comments should be addressed technology to share information with Title 5 U.S.C. 552b(c)(6) and 5 to OMB Desk Officer, for the United between law enforcement agencies and U.S.C. App. 2, Section 10(d). States Immigration and Customs by applying risk-based methodologies to Substantive program information, a Enforcement, Department of Homeland focus resources on assisting all local summary of the meeting and a roster of Security, and sent via electronic mail to communities remove high-risk criminal Council members may be obtained as [email protected] or faxed aliens. soon as possible after the meeting, either to (202) 395–6974. In order to implement Secure by accessing the SAMHSA Committee Written comments and suggestions Communities, ICE must collect detailed Web site at www.nac.samhsa.gov, or by from the public and affected agencies business requirements and input from contacting CSAT National Advisory concerning the proposed collection of its state and local law enforcement Council’s Designated Federal Official, information should address one or more partners. ICE will interview law Ms. Cynthia Graham (see contact of the following four points: enforcement officials at over 3,500 state information below). (1) Evaluate whether the proposed and local jails across the United States Committee Name: SAMHSA Center for collection of information is necessary as part of the Secure Communities Substance Abuse Treatment National for the proper performance of the Initiative. The collection of information Advisory Council. functions of the agency, including involves the use of information Date/Time/Type: July 31, 2008, from 1 p.m. whether the information will have technology permitting electronic to 3 p.m.: Closed. practical utility; submissions of responses through the Place: SAMHSA Building, 1 Choke Cherry (2) Evaluate the accuracy of the use of an online survey. This survey Road, VTC Room, L–1057, Rockville, agencies estimate of the burden of the will determine the fingerprint Maryland 20857. proposed collection of information, procedures and technological Contact: Cynthia Graham, M.S., Designated Federal Official, SAMHSA CSAT National including the validity of the capabilities of state and local jails Advisory Council, 1 Choke Cherry Road, methodology and assumptions used; governance, as well as basic jail booking Room 5–1035, Rockville, Maryland 20857, (3) Enhance the quality, utility, and statistics. This information will be used Telephone: (240) 276–1692, Fax: (240) 276– clarity of the information to be in order to prioritize local sites and 16890, E-mail: collected; and deliver the implementation strategy of [email protected]. (4) Minimize the burden of the the Secure Communities Initiative. Toian Vaughn, collection of information on those who (5) An estimate of the total number of are to respond, including through the Committee Management Officer, Substance respondents and the amount of time Abuse and Mental Health Services use of appropriate automated, estimated for an average respondent to Administration. electronic, mechanical, or other respond: 3,500 responses at 30 minutes [FR Doc. E8–15757 Filed 7–10–08; 8:45 am] technological collection techniques or (.50) per response. other forms of information technology, (6) An estimate of the total public BILLING CODE 4162–20–P e.g., permitting electronic submission of burden (in hours) associated with the responses. collection: 1,750 annual burden hours. Requests for a copy of the proposed Overview of This Information DEPARTMENT OF HOMELAND information collection instrument, with Collection SECURITY instructions; or inquiries for additional (1) Type of Information Collection: United States Immigration and information should be directed to: Lee Emergency Request for Information Customs Enforcement Shirkey, Chief, Records Management Collection Approval. Branch, Bureau of Immigration and Agency Information Collection (2) Title of the Form/Collection: Customs Enforcement, 425 I Street, Activities: Emergency Submission to IDENT/IAFIS Interoperability NW., Room 1122, Washington, DC OMB, Comment Request Action: 30- Assessment. 20536; (202) 353–2266. (3) Agency form number, if any, and Day Notice of Information Collection the applicable component of the Dated: July 8, 2008. Under Review; IDENT/IAFIS Department of Homeland Security Lee Shirkey, Interoperability Assessment sponsoring the collection: No form Chief, Records Management Branch, Bureau The Department of Homeland number; United States Immigration and of Immigration and Customs Enforcement, Department of Homeland Security. Security, U.S. Immigration and Customs Customs Enforcement. Enforcement (USICE), has submitted the Affected public who will be asked or [FR Doc. E8–15846 Filed 7–10–08; 8:45 am] following emergency information required to respond, as well as a brief BILLING CODE 9111–28–P collection, utilizing emergency review abstract: Primary: State and Local procedures, to the Office of Management Correctional Facilities. 8 U.S.C. 1231 (a) and Budget (OMB) for review and gives The Department of Homeland DEPARTMENT OF THE INTERIOR clearance in accordance with the Security (DHS) Immigration and Fish and Wildlife Service Paperwork Reduction Act of 1995 (Pub. Customs Enforcement (ICE) authority to L. 104–13, 44 U.S.C. Chapter 35). The remove criminal aliens who have been [FWS–R4–R–2008–N0180; 40136–1265– purpose of this notice is to allow 30 ordered as such. The U.S. Department of 0000–S3] days for public comments. Comments Homeland Security (DHS), Immigration are encouraged and will be accepted for and Customs Enforcement (ICE) is Delta and Breton National Wildlife thirty days until August 11, 2008. This improving community safety by Refuges, Louisiana process is conducted in accordance with transforming the way the federal AGENCY: Fish and Wildlife Service, 5 CFR 1320.10. government cooperates with state and Interior. Interested persons are invited to local law enforcement agencies to ACTION: Notice of availability. submit written comments on the identify, detain, and remove all criminal proposed information collection to the aliens held in custody. Secure SUMMARY: The Fish and Wildlife Service Office of Information and Regulatory Communities (SC) will revolutionize announces that a Draft Comprehensive

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Conservation Plan and Environmental emphasize managing natural resources Register notice announcing the Assessment (Draft CCP/EA) for Delta based on maintaining and improving availability of a draft comprehensive National Wildlife Refuge in wetland habitats with improved conservation plan and environmental Plaquemines Parish, Louisiana, and restoration techniques; providing assessment (Draft CCP/EA) for Breton National Wildlife Refuge in St. quality public use programs and Swanquarter National Wildlife Refuge Bernard and Plaquemines Parishes, wildlife-dependent recreational (NWR) for public review and comment. Louisiana, is available for distribution. activities; and expanding the outreach This notice contained an error in the e- This document was prepared pursuant program. mail address we provided for public to the National Wildlife Refuge System Three management alternatives were review and comment. We now correct Improvement Act of 1997, and the also considered for Breton Refuge. the e-mail address. National Environmental Policy Act of Alternative A would continue the SUPPLEMENTARY INFORMATION: On July 3, 1969. The Draft CCP/EA describes the present management practices with no 2008, we published a notice announcing Service’s proposal for management of changes or improvements. Alternative B the availability of a Draft CCP/EA for the refuge for 15 years. would focus on leaving the islands to Swanquarter NWR for public review DATES: Written comments must be the natural processes and weather and comment (73 FR 38242). This notice received at the postal address listed events with no active management contained an error in the e-mail address below no later than August 11, 2008. actions. Alternative C, the proposed we provided for the public to use to ADDRESSES: To provide written alternative, would emphasize working send us comments on the Draft CCP/EA. comments or to obtain a copy of the with partners to restore island habitat In notice document E8–15117, on Draft CCP/EA, please write to: Mr. Jack with large-scale projects, if considered page 38242 of the issue of July 3, 2008, Bohannan, 61389 Highway 434, feasible; improving outreach; and make the following correction: Lacombe, LA 70445. A copy of the Draft providing environmental education On page 38242, in the second column, CCP/EA is available on both compact relating to the barrier islands to local the ADDRESSES section should read: diskette and hard copy. You may also schools. ADDRESSES: Requests for copies of the access and download a copy of the Draft Delta Refuge, consisting of 48,799 Draft CCP/EA should be addressed to: CCP/EA at the Service’s Internet Site: acres of wetlands at the mouth of the Bruce Freske, Refuge Manager, http://southeast.fws.gov/planning/. Mississippi River, was established on Swanquarter National Wildlife Refuge, FOR FURTHER INFORMATION CONTACT: Mr. November 19, 1935, by Executive Order 38 Mattamuskeet Road, Swan Quarter, Jack Bohannan; Telephone: 985/882– 7229. NC 27885. The Draft CCP/EA may also 2026. Breton Refuge, the second oldest be accessed and downloaded from the national wildlife refuge in the United Service’s Internet Site: http:// SUPPLEMENTARY INFORMATION: States, is a barrier island chain in Breton Public Availability of Comments: southeast.fws.gov/planning. and Chandeleur Sounds in the Gulf of Before including your address, phone Comments on the Draft CCP/EA may Mexico. It was established on October 4, number, e-mail address, or other be submitted to the above address or via 1903, by Executive Order 7938, signed personal identifying information in your electronic mail to by President Theodore Roosevelt. comment, you should be aware that [email protected]. your entire comment, including your Authority: This notice is published under Dated: July 8, 2008. the authority of the National Wildlife Refuge personal identifying information, may Sara Prigan, be made publicly available at any time. System Improvement Act of 1997, Public Law 105–57. Federal Register Liaison. While you can ask us in your comment [FR Doc. E8–15917 Filed 7–10–08; 8:45 am] to withhold your personal identifying Dates: August 16, 2007. BILLING CODE 4310–55–P information from public review, we Cynthia K. Dohner, cannot guarantee that we will be able to Acting Regional Director. do so. Editorial Note: This document was DEPARTMENT OF THE INTERIOR Background: received at the Office of the Federal Register on July 7, 2008. Fish and Wildlife Service Significant issues addressed in the Draft CCP/EA include managing [FR Doc. E8–15762 Filed 7–10–08; 8:45 am] [FWS–R8–R–2008–N0064; 80230–1265– threatened and endangered species, BILLING CODE 4310–55–P 0000–S3] species of concern, and other species of Desert National Wildlife Refuge federal responsibility; conserving DEPARTMENT OF THE INTERIOR Complex, Clark, Lincoln, and Nye habitats and restoring wetland habitats Counties, NV specific to the riverine and marine Fish and Wildlife Service environments; providing and improving AGENCY: Fish and Wildlife Service, refuge visitor programs; increasing [FWS–R4–R–2008–N0184; 40136–1265– Interior. 0000–S3] public outreach; and providing ACTION: Notice of availability; request environmental education programs. Swanquarter National Wildlife Refuge, for comments: draft comprehensive Three management alternatives were Hyde County, NC; Correction conservation plan/environmental considered for Delta Refuge. Alternative impact statement. A would continue current management AGENCY: Fish and Wildlife Service, with no new actions to improve or Interior. SUMMARY: We, the U.S. Fish and enhance existing programs. Alternative ACTION: Notice of availability: draft Wildlife Service (Service), announce the B would focus on expanding public use comprehensive conservation plan and availability of a Draft Comprehensive activities to the fullest extent possible, environmental assessment; request for Conservation Plan/Environmental including duplicating programs and comments; correction. Impact Statement (CCP/EIS) for the opportunities offered at the adjacent Desert National Wildlife Refuge wildlife management area. Alternative SUMMARY: We, the U.S. Fish and Complex for public review and C, the proposed alternative, would Wildlife Service, published a Federal comment. The Desert National Wildlife

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Refuge Complex is composed of Ash workshops, planning updates, and a governments, non-governmental Meadows National Wildlife Refuge, CCP Web page. We received over 400 organizations, or individuals. Desert National Wildlife Refuge, Moapa scoping comments during the 60-day Alternatives for Ash Meadows National Valley National Wildlife Refuge and public comment period. Wildlife Refuge Pahranagat National Wildlife Refuge. Background The CCP/EIS, prepared pursuant to the Under Alternative A, the no action National Wildlife Refuge System Ash Meadows Refuge was established alternative, we would continue to Improvement Act of 1997, and in in 1984 under the authority of the manage the Refuge as we have in the accordance with the National Endangered Species Act of 1973, as past. We would implement habitat Environmental Policy Act of 1969, amended. It comprises 23,000 acres of restoration plans that have already been describes how the Service will manage spring-fed wetlands, mesquite bosques, completed. No major changes in habitat the Refuges for the next 15 years. Draft and desert uplands that provide habitat management would occur. The existing compatibility determinations for several for at least 24 plants and animal species wildlife observation, photography, existing and proposed public uses are found nowhere else in the world. The environmental education, and also available for review and public Refuge is located 90 miles northwest of interpretation programs would remain comment with the Draft CCP/EIS. Las Vegas and 30 miles west of unchanged. DATES: Written comments must be Pahrump. Under Alternative B, we would plan received at the address below on or Desert Refuge was originally and implement springhead, channel, before September 9, 2008. established in 1936 by Executive Order and landscape restoration on about two No. 7373 and subsequently modified by thirds of the Refuge. Surveys and ADDRESSES: For more information on Public Land Order 4079, for the monitoring for special status species obtaining documents and submitting protection, enhancement and would be expanded as would efforts to comments, see ‘‘Review and Comment’’ maintenance of wildlife resources control invasive plants and animals. under SUPPLEMENTARY INFORMATION. For including bighorn sheep. Located just Environmental education, interpretation public meeting location see ‘‘Public north of Las Vegas, Nevada, the 1.6 and wildlife observation opportunities Meetings.’’ million acre refuge is the largest would be improved and expanded and FOR FURTHER INFORMATION CONTACT: National Wildlife Refuge in the lower 48 a new visitor contact station and Cynthia Martinez, Project Leader, U.S. states. headquarters facility would be Fish and Wildlife Service, 4701 North The Moapa Valley Refuge was constructed. Torrey Pines, Las Vegas, NV 89130, established September 10, 1979, under Under the preferred alternative, phone (702) 515–5450 or Mark Pelz, the authority of the Endangered Species Alternative C, we would seek to restore Chief, Refuge Planning, 2800 Cottage Act of 1969, as amended, to secure springheads, channels and floodplains Way, W–1832, Sacramento, CA 95825, habitat for the endangered Moapa dace. throughout the Refuge. Surveys and phone (916) 414–6504. The Refuge is located on 116 acres in monitoring, habitat protection, pest SUPPLEMENTARY INFORMATION: northeastern Clark County. Due to its management, and research would also The National Wildlife Refuge System small size, fragile habitats, on-going be substantially expanded. Improvement Act of 1997 (16 U.S.C. habitat restoration work, and unsafe Environmental education, 668dd–668ee), which amended the structures, the Refuge is currently interpretation, and wildlife observation National Wildlife Refuge System closed to the general public. programs would be similar to but Administration Act of 1966, requires us The Pahranagat Refuge was slightly less than Alternative B. to develop a CCP for each national established in 1963, under the authority wildlife refuge. The purpose in of the Migratory Bird Conservation Act, Alternatives for the Desert National developing a CCP is to provide refuge as amended, to protect habitat for Wildlife Refuge managers with a 15-year plan for migrating birds in the Pahranagat Under Alternative A, the no action achieving refuge purposes and Valley. The 5,382-acre refuge consists of alternative, we would continue current contributing toward the mission of the marshes, meadows, lakes, and upland management for bighorn sheep and National Wildlife Refuge System, desert habitat. It provides nesting, other species. We would also continue consistent with sound principles of fish resting, and feeding areas for waterfowl, to offer limited opportunities for and wildlife management, conservation, shorebirds, wading birds, and song birds wildlife observation and photography, legal mandates, and our policies. In including the endangered southwestern environmental education, and addition to outlining broad management willow flycatcher. interpretation at Corn Creek. Existing direction on conserving wildlife and backcountry recreation opportunities their habitats, CCPs identify wildlife- Alternatives would continue to be offered including dependent recreational opportunities The Draft CCP/EIS identifies and bighorn sheep hunting, hiking, camping, available to the public, including evaluates three alternatives for horseback riding, and backpacking. In opportunities for hunting, fishing, managing Ash Meadows and Moapa addition, under this and all other wildlife observation and photography, Valley Refuges and four alternatives for alternatives, we would design and environmental education and managing Desert and Pahranagat construct a visitor center and interpretation. Refuges for the next 15 years. The administrative offices at Corn Creek and We initiated the CCP/EIS for the alternative for each Refuge that appears continue to protect the wilderness Desert National Wildlife Refuge to best meet the refuge purposes is character of the 1.4 million acre Complex in August 2002. At that time identified as the preferred alternative. proposed Desert Wilderness. and throughout the process, we The preferred alternatives were Under Alternative B, wildlife requested, considered, and incorporated identified based on the analysis management programs would be similar public scoping comments in numerous presented in the Draft CCP/EIS, which to Alternative A, with minor ways. Our public outreach has included may be modified following the improvements, including expanded a Federal Register notice of intent completion of the public comment surveys for bighorn sheep and published on August 21, 2002, agency period based on comments received installation of post and cable fencing and Tribal scoping meetings, five public from other agencies, Tribal along the southern boundary. This

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alternative would also include a and the development of a long term similar to Alternative C, except we substantial expansion in visitor services inventory and monitoring plan for would seek to acquire additional water over Alternative A, including a new sensitive species. In addition, we would rights for the Refuge to provide more environmental education program, restore the springheads and channels flexibility in wetland management. improved roads, a new auto tour route, and associated native vegetation on the Also, we would restore an additional 5– and new wildlife viewing trails. Apcar unit. Under Alternative C, we 10 acres of riparian habitat and expand Under the preferred alternative, would expand the Refuge acquisition the surveying and monitoring programs Alternative C, we would expand boundary by 1,503 acres and pursue under this alternative. Visitor services inventory and monitoring for bighorn acquisition of the lands within the would be similar to Alternative C except sheep, special status species, and boundary to protect habitat for Moapa we would convert the campground to a vegetation and wildlife communities dace and other sensitive species. Under walk-in day use area. throughout the Refuge. Under this this alternative, the Refuge would be alternative, we would also use open to visitors every day, the Public Meetings prescribed fire and naturally ignited environmental education program The locations, dates, and times of fires in Refuge plant communities where would be expanded, and additional public meetings will be listed in a appropriate to restore vegetation trails would be constructed. planning update distributed to the characteristics representative of a project mailing list and posted on the natural fire regime. Alternative C would Alternatives for Pahranagat National Wildlife Refuge Refuge Complex Web site at http:// also include fencing along the eastern www.fws.gov/desertcomplex/. boundary as well as the permanent Under Alternative A, the no action closure of illegal roads and alternative, we would continue to Review and Comment rehabilitation of damaged habitat along manage Pahranagat Refuge as we have Copies of the Draft CCP/EIS may be the southern and eastern boundaries. in the recent past. The in-progress obtained by writing to the U.S. Fish and Visitor services under this alternative hydrology studies would be completed Wildlife Service, Attn: Mark Pelz, CA/ would be the same as under Alternative and a wetland habitat management plan NV Refuge Planning Office, 2800 B except no auto tour route or wildlife would be developed and implemented. Cottage Way, W–1832, Sacramento, CA viewing trails would be developed. Riparian habitat would be maintained Under Alternative D, the wildlife for the southwestern willow flycatcher 95825–1846. Copies of the Draft CCP/ management and inventory and and other migratory birds. Under this EIS may be viewed at this address or at monitoring programs would be similar alternative, we would maintain the the Desert National Wildlife Refuge to Alternative C. However, under this fishing, hunting, wildlife observation, Complex, 4701 North Torrey Pines, Las alternative, visitor services would be and environmental education and Vegas, NV 89130. The Draft CCP/EIS scaled back from the other alternatives. interpretation opportunities on the will also be available for viewing and For example, the visitor center would Refuge. The campground would be downloading online at http:// only be staffed on weekends during the maintained in its current state. www.fws.gov/desertcomplex/ off-peak seasons and there would be no Under Alternative B, we would publicreview.htm. road improvements on the Refuge. expand wildlife management and visitor Comments on the Draft CCP/EIS services on the Refuge. We would should be addressed to: Mark Pelz, Alternatives for Moapa Valley National develop 40 acres of foraging habitat for Chief, Refuge Planning, 2800 Cottage Wildlife Refuge sandhill cranes and waterfowl. Wildlife Way, W–1832, Sacramento, CA 95825– Under Alternative A, the no action surveys and efforts to control invasive 1846. Comments may also be faxed to alternative, we would continue to plants would be expanded and a new (916) 414–6497 or if you choose to manage the Refuge as we have in the refugium for the Pahranagat roundtail submit comments via electronic mail, recent past. Springhead and channel chub would be developed. The visitor visit http://www.desertcomplex.fws.gov restoration work and visitor facilities on contact station would be expanded and and use the ‘‘Guest Mailbox’’ provided the Plummer Unit would be completed. a new interpretive kiosk would be at that site. The limited inventory and monitoring developed. In addition, we would make At the end of the review and comment program would also continue. However, a small reduction in the hunt area to period for this Draft CCP/EIS, comments the Refuge would remain closed to the reduce potential conflicts with other will be analyzed by the Service and public, except by special arrangement. refuge uses. The campground would addressed in the Final CCP/EIS. Before Under Alternative B, wildlife also be maintained, but fees would be including your address, phone number, management programs would be similar charged and the maximum length of e-mail address, or other personal to Alternative A, with minor stay would be reduced from fourteen to identifying information in your improvements, including expanded seven days. comment, you should be aware that surveys for sensitive species and their Under Alternative C, management your entire comment—including your habitats, and strategies for removing would be similar to Alternative B, with personal identifying information—may nonnative aquatic species. We would the following exceptions. We would be made publicly available at any time. also restore native vegetation along the restore 200 acres of riparian habitat While you can ask us in your comment springheads and channels on the between Upper Pahranagat Lake and to withhold your personal identifying Pederson Unit. This alternative would Middle Marsh and develop and information from public review, we also include a substantial expansion in implement restoration plans for cannot guarantee that we will be able to visitor services over Alternative A, degraded springs on the Refuge. In do so. including opening the Refuge on addition, a new visitor contact station, weekends and improved visitor interpretive walking trail, and photo Dated: July 2, 2008. facilities. blind would also be developed. Under Ken McDermond, Under the preferred alternative, this alternative, we would convert the Acting Regional Director, California and Alternative C, wildlife management campground to a day use area. Nevada Region, Sacramento, California. would be similar to Alternative B but Under the preferred alternative, [FR Doc. E8–15631 Filed 7–10–08; 8:45 am] would include increased monitoring Alternative D, management would be BILLING CODE 4310–55–P

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DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR should be sent to [email protected]. By Fax: You may fax your comments to Bureau of Land Management Bureau of Land Management (866) 711–3106. Please remember to include your name and return address [CACA–47658, CA–670–5101 ER B204] [F–21984, F–22876, F–22889, F–22882, F– in the fax, write legibly, and use black 21914, F–21885, F–21950; AK–962–1410– Notice of Availability of the or blue ink. HY–P] Recirculated Draft Environmental FOR FURTHER INFORMATION CONTACT: Impact Report/Supplemental Draft Information concerning the BLM/NEPA Alaska Native Claims Selection Environmental Impact Statement for process may be obtained from Lynda the Proposed Sunrise Powerlink Kastoll, Project Manager, BLM, 1661 S. AGENCY: Bureau of Land Management, Project 4th Street, El Centro, CA 92243; Interior. telephone (760) 337–4421; e-mail AGENCY: Bureau of Land Management. ACTION: Notice of decision approving [email protected]. Information ACTION: Notice of availability. lands for conveyance. concerning the CPUC/CEQA process may be obtained from Billie Blanchard, SUMMARY: In accordance with the Project Manager, CPUC, 505 Van Ness SUMMARY: As required by 43 CFR National Environmental Policy Act of Ave., San Francisco, CA 94102; 2650.7(d), notice is hereby given that an 1969 (NEPA, 42 U.S.C. 4321 et seq.) and telephone (415) 703–2068; e-mail at appealable decision approving lands for the Federal Land Policy and [email protected]. conveyance pursuant to the Alaska Management Act of 1976 (FLPMA, 43 Native Claims Settlement Act will be U.S.C. 1701 et seq.), the Bureau of Land The RDEIR/SDEIS will be available issued to Bering Straits Native Management (BLM), together with the for review at numerous area libraries and on the project Web site: http:// Corporation for lands located in the California Public Utilities Commission www.cpuc.ca.gov/environment/info/ vicinity of Council and Shaktoolik, (CPUC), in compliance with the aspen/sunrise/sunrise.htm. A compact Alaska. Notice of the decision will also California Environmental Quality Act (CEQA, Pub. Res. Code § 21000 et seq.), disc (CD) containing the document may be published four times in the Nome be requested by phone, fax at (866) 711– Nugget. has prepared a Recirculated Draft EIR/ Supplemental Draft EIS (RDEIR/SDEIS) 3106, or by e-mail at DATES: The time limits for filing an to augment the analysis for the Sunrise [email protected]. appeal are: Powerlink Project proposed by San SUPPLEMENTARY INFORMATION: SDG&E 1. Any party claiming a property Diego Gas & Electric Company (SDG&E). proposes to construct a new 91-mile, interest which is adversely affected by DATES: In order to comply with NEPA 500-kilovolt (kV) electric transmission the decision shall have until August 11, regulations at 40 CFR 1502.9(c)(4), line from the Imperial Valley Substation 2008 to file an appeal. comments on the RDEIR/SDEIS must be (in Imperial County, near the City of El postmarked or received within 45 days Centro) to a new Central East Substation 2. Parties receiving service of the following the date the Environmental (in central San Diego County, southwest decision by certified mail shall have 30 Protection Agency publishes its Notice of the intersection of County Highways days from the date of receipt to file an of Availability in the Federal Register. S22 and S2) and a new 59-mile, 230-kV appeal. You may submit comments by U.S. line that includes both overhead and Parties who do not file an appeal in mail, electronic mail, or fax. Only underground segments from the new accordance with the requirements of 43 written comments may be submitted. Central East Substation to SDG&E’s CFR part 4, subpart E, shall be deemed There will be no opportunity to make existing Pen˜ asquitos Substation (in the to have waived their rights. oral comments. Comments on the City of San Diego). Portions of the RDEIR/SDEIS may only address the proposed 500-kV transmission line ADDRESSES: A copy of the decision may topics included in this document, not would traverse approximately 35 miles be obtained from: Bureau of Land the contents of the original complete of federal lands managed by the BLM Management, Alaska State Office, 222 Draft EIR/EIS. within the California Desert West Seventh Avenue, #13, Anchorage, In addition, an informational Conservation Area in Imperial County, Alaska 99513–7504. workshop will be held during the and approximately 1 mile of BLM- FOR FURTHER INFORMATION CONTACT: The comment period to help the public administered land in San Diego County. Bureau of Land Management by phone understand the RDEIR/SDEIS and to The remainder of the proposed project explain how to participate in the CPUC at 907–271–5960, or by e-mail at would cross lands owned by various and BLM’s decision-making processes. entities including the State of California, [email protected]. Persons The workshop will be announced at local governments, and private parties. who use a telecommunication device least 15 days in advance through local On January 3, 2008, the CPUC and (TTD) may call the Federal Information news media, public notices, mailings, Relay Service (FIRS) at 1–800–877– BLM published a Draft EIR/EIS on the and agency Web sites. Sunrise Powerlink Project. The Draft 8330, 24 hours a day, seven days a ADDRESSES: By Mail: Please use first- EIR/EIS contained 7500+ pages in six week, to contact the Bureau of Land class postage and be sure to include volumes. It included an analysis of the Management. your name and return address. Send proposed project’s effects, as well as an Dina L. Torres, written comments to CPUC/BLM c/o analysis of future possible transmission Land Transfer Resolution Specialist, Aspen Environmental Group, 235 lines and ‘‘connected actions’’ that are Resolution Branch. Montgomery Street, Suite 935, San likely to be built if the Sunrise [FR Doc. E8–15782 Filed 7–10–08; 8:45 am] Francisco, CA 94104. By Electronic Powerlink Project is built. The Draft Mail: E-mail communications are EIR/EIS also identified alternatives to BILLING CODE 4310–JA–P welcome; but, please remember to the proposed project (including the No include your name and return address Action Alternative) and evaluated their in the e-mail message. E-mail messages expected environmental impacts.

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A 90-day comment period on the RDEIR/SDEIS presents new ‘‘connected DEPARTMENT OF THE INTERIOR Draft EIR/EIS ended on April 11, 2008. action’’ and ‘‘indirect effects’’ analysis Nine workshops and five public of the Sempra project. Bureau of Land Management participation hearings were held during 3. Description and Analysis of [AK–910–1310PP–ARAC] the comment period, and over 2,500 Transmission Line Route Revisions. In pages of written comments were comments on the Draft EIR/EIS, SDG&E Notice of Public Meeting, BLM-Alaska submitted. After the comment period, proposed modifications to several Resource Advisory Council two additional public participation segments of the Proposed and hearing were held on May 12, 2008. Alternative transmission line routes. AGENCY: Bureau of Land Management, Under CEQA, recirculation is required Some of these reroutes would affect new Alaska State Office, Interior. when significant new information landowners, change the potential effect ACTION: Notice of public meeting. changes the EIR in a way that deprives on already-affected landowners, or SUMMARY: In accordance with the the public of a meaningful opportunity otherwise change the environmental Federal Land Policy and Management to comment upon a substantial adverse impact described in the Draft EIR/EIS. Act (FLPMA) and the Federal Advisory environmental effect of the project or a The RDEIR/SDEIS describes 13 reroutes. Committee Act of 1972 (FACA), the U.S. feasible way to mitigate or avoid such The CPUC and BLM evaluated all an effect. New information may include Department of the Interior, Bureau of comments on the Draft EIR/EIS and Land Management (BLM) Alaska changes in the project or environmental determined that other requests for a setting as well as additional data or Resource Advisory Council will meet as recirculated/supplemental document indicated below. other information. Under the regulations did meet the requirements defined DATES: implementing NEPA (40 CFR above. The Final EIR/EIS will respond The meeting will be held August 1502.9(c)(2)(ii), a supplement to an EIS to each comment requesting 12, 2008, at the Wiseman Community is required when there are significant recirculation, explaining why this Center, Wiseman, Alaska; Milepost 189 new circumstances or information determination was made. of the Dalton Highway. The meeting, relevant to the environmental concerns which will provide an opportunity for An informational workshop will be related to the proposed project or its residents of the Dalton Highway to meet held to help the public understand the impacts. In this case, the new Resource Advisory Council members RDEIR/SDEIS, and to explain how to information involves changes to the and discuss local topics, will start at participate in the CPUC and BLM ‘‘connected actions’’ analyzed in the 2:30 p.m. and end at 4:30 p.m. Draft EIR/EIS and route revisions decision-making processes. The informal workshop is an opportunity to FOR FURTHER INFORMATION CONTACT: (‘‘reroutes’’) proposed by SDG&E in Sharon Wilson, BLM-Alaska State comments on the Draft EIR/EIS. The speak with and ask questions of CPUC and BLM representatives and some of Office, 222 W. 7th Avenue #13, RDEIR/SDEIS includes the following Anchorage, AK 99513. Telephone (907) components: the specialists who prepared the RDEIR/ SDEIS. A brief presentation will 271–4418 or e-mail 1. Revision of components of the [email protected]. Environmentally Superior Alternatives summarize the EIR/EIS process, the for northern and southern transmission information presented in the RDEIR/ SUPPLEMENTARY INFORMATION: The 15- lines. Because of Tribal opposition, the SDEIS, and the decision making- member Council advises the Secretary Interstate 8 Alternative now bypasses process. Presentation notes will be of the Interior, through the Bureau of the Campo Reservation. Without Tribal available on the project Web site for Land Management, on a variety of approval it was also necessary to modify those unable to attend. While written planning and management issues the Southern Environmentally Superior comments may be submitted during the associated with public land Route to avoid all tribal lands, following workshop, there will be no facilities to management in Alaska. At this meeting, the BCD Alternative and BCD South record oral comments. BLM District Managers will give Option. The Northern Environmentally Comments received may be published updates on district activities and the Superior Route has been modified to as part of the EIR/EIS process. Before status of resource management add consideration of an additional including your address, phone number, planning, discuss local issues underground segment in the Santa e-mail address, or other personal introduced by residents of the area and Ysabel Valley. identifying information in your receive public comment on BLM-related 2. New and Revised Analysis of the La comment, you should be aware that matters. Rumorosa Wind Project. In December your entire comment, including your Depending on the number of people 2007, Sempra Generation submitted to personal identifying information, may wishing to comment and time available, the U.S. Department of Energy an be made publicly available at any time. the time for individual oral comments Application for Presidential Permit, While you can ask us in your comment may be limited, so please be prepared to proposing a 1,250 megawatt (MW) wind to withhold your personal identifying submit written comments if necessary. project in Mexico that would include information from public review, we Before including your address, phone the construction of transmission lines cannot guarantee that we will be able to number, e-mail address, or other into the United States, and a new do so. personal identifying information in your substation located northeast of the town At the end of the 45-day comment comment, you should be aware that of Jacumba, California. The Draft EIR/ period on the RDEIR/SDEIS, the CPUC your entire comment—including your EIS, in its evaluation of ‘‘connected and BLM will prepare a Final EIR/EIS. personal identifying information—may actions’’ and ‘‘indirect effects’’, The Final EIR/EIS will respond to all be made publicly available at any time. analyzed a 250 MW wind project in comments received on the Draft EIR/EIS While you can ask us in your comment Mexico that included the construction and on the RDEIR/SDEIS. to withhold your personal identifying of a transmission line and a ‘‘Jacumba information from public review, we Substation.’’ However, the wind project Tom Pogacnik, cannot guarantee that we will be able to considered in the Draft EIR/EIS was Deputy State Director. do so. much smaller than the actual project as [FR Doc. E8–15943 Filed 7–10–08; 8:45 am] Individuals who plan to attend and described by Sempra. As a result, the BILLING CODE 4310–40–P need special assistance, such as sign

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language interpretation, transportation, a copy of the entire ICR package free of documentation on which decisions for or other reasonable accommodations, charge once the package is submitted to listing and eligibility are based. The should contact BLM. OMB for review. You can access this obligation to respond is required to Dated: July 7, 2008. ICR at http://www.reginfo.gov/public/. obtain or retain benefits. Description of respondents: The Thomas P. Lonnie, SUPPLEMENTARY INFORMATION: Title: 36 CFR 60 and 63: National affected public are State, tribal, and State Director. local governments, businesses, non- [FR Doc. E8–15772 Filed 7–10–08; 8:45 am] Register of Historic Places Registration Form; Continuation Sheet; National profit organizations, and individuals. BILLING CODE 4310–JA–P Register Multiple Property Nominations to the National Register of Documentation Form. Historic Places are voluntary. Form(s): NPS 10–900 (registration Estimated average number of DEPARTMENT OF THE INTERIOR respondents: 1,513. form), 10–900–a (continuation sheet), Estimated average number of 10–900–b (multiple property National Park Service responses: 1,513. documentation form). Estimated average time burden per 60-Day Notice of Intention To Request OMB Control Number: 1024–0018. respondent: Depending on which form Clearance of Collection of Information: Expiration Date: 01/31/2009. is used, the average burden per response Opportunity for Public Comment Type of Request: Extension of a may very considerably because of many currently approved collection of AGENCY: Department of the Interior, complex factors. In general, to fulfill information. National Park Service. minimum program requirements Description of Need: The National describing the nominated property and ACTION: Notice and request for Historic Preservation Act of 1966 comments. demonstrating its eligibility under the requires the Secretary of the Interior to criteria, the average burden hours range SUMMARY: Under the provisions of the maintain and expand the National from 18 hours for a nomination Paperwork Reduction Act of 1995 and 5 Register of Historic Places, and to proposed under an existing Multiple CFR part 1320, Reporting and establish criteria and guidelines for Property Submission (MPS), to 36 hours Recordkeeping Requirements, the including properties in the National for a new proposed individual National Park Service (NPS) invites Register. The National Register of nomination, to 120 hours for a newly public comments on an extension of a Historic Places Registration Form proposed MPS. Continuation Sheets currently approved collection of documents properties nominated for (10–900-a) are used as space for information (OMB #1024–0018). listing in the National Register and additional information for both the demonstrates that they meet the criteria DATES: Public comments on this individual nomination form and the established for inclusion. The Information Collection Request (ICR) multiple property form, as needed. As documentation is used to assist in will be accepted on or before September such the calculation of burden hours per preserving and protecting the properties 9, 2008. response for the continuation sheet has and for heritage education and been included in the above average ADDRESSES: Send comments to Paul interpretation. National Register Loether, Chief, National Register of calculations for the National Register of properties must be considered in the Historic Places Registration Form (10– Historic Places and National Historic planning for federal or federally assisted Landmarks Program, 1201 Eye Street, 900), and the National Register Multiple projects. National Register listing is Property Documentation Form (10–900- NW. (2280), 8th Floor, Washington, DC required for eligibility for the federal 20005; or via phone at 202/354–2003; or b). rehabilitation tax incentives. The Frequency of response: Once per via fax at 202/371–2229; or via e-mail at _ primary purpose of the ICR is to respondent. Paul [email protected]. Also, you may nominate properties for listing in the Estimated total annual reporting send comments to Leonard E. Stowe, National Register of Historic Places, the burden: 52,824 hours broken down as NPS Information Collection Clearance official list of the nation’s cultural follows: 196 nominations submitted Officer, 1849 C St., NW. (2605), resources worthy of preservation, which under existing MPS @ 18 hrs. each = Washington, DC 20240; or via e-mail at _ Public Law requires that the Secretary of 3,528 hours; 1,186 newly proposed leonard [email protected]. All responses the Interior maintain and expand. individual nominations @ 36 hrs. each to this Notice will be summarized and Properties are listed in the National = 42,696 hours; 55 new proposed MPS included in the request for the Office of Register upon nomination by State, @ 120 hrs. each = 6,600 hours. Management and Budget (OMB) Federal and Tribal Historic Comments are invited on: (1) the approval. All comments will become a Preservations Officers. The National practical utility of the information being matter of public record. Register of Historic Places Registration gathered; (2) the accuracy of the burden To Request a Draft of Proposed Form documents properties nominated hour estimate; (3) ways to enhance the Collection of Information Contact: Lisa for listing in the National Register and quality, utility, and clarity of the Deline, NPS Historian, National Register demonstrates that they meet the criteria information being collected; and (4) of Historic Places, 1201 Eye St., NW. established for inclusion. The ways to minimize the burden to (2280), Washington, DC 20005; or via documentation is used to assist in respondents, including use of phone at 202/354–2239; or via fax at preserving and protecting the properties automated information collection 202/371–2229; or via e-mail at _ and for heritage education in techniques or other forms of information 3lisa [email protected]. interpretation. National Register technology. Before including your FOR FURTHER INFORMATION CONTACT: Lisa properties and those eligible for listing address, phone number, e-mail address, Deline, NPS Historian, National Register must be considered in the planning for or other personal identifying of Historic Places, 1201 Eye St., NW. Federal or federally assisted projects, information in your comment, you (2280), Floor, Washington, DC 20005; or and National Register listing is required should be aware that your entire via phone at 202/354–2239; or via fax at for eligibility for the Federal comment—including your personal 202/371–2229; or via e-mail at Rehabilitation Tax incentives. The identifying information—may be made [email protected]. You are entitled to forms provide the historic publicly available at any time. While

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you can ask us in your comment to to a copy of the entire ICR package free attributable either directly or indirectly withhold your personal identifying of charge once the package is submitted to such assets, the transaction may not information from public review, we to OMB for review. You can access this be approved. The amount and type of cannot guarantee that we will be able to ICR at http://www.reginfo.gov/public/. information to be submitted varies with do so. SUPPLEMENTARY INFORMATION: the type and complexity of the proposed Dated: July 2, 2008. Title: Proposed Sale of Concession transaction. Without such information, Leonard E. Stowe, Operations (36 CFR part 51, subpart J). the NPS would be unable to determine whether approval of the proposed NPS, Information Collection Clearance Bureau Form Number (s): None. Officer. OMB Control Number: 1024–0126. transaction would be adequate. Concessioners’ obligation to respond is [FR Doc. E8–15590 Filed 7–10–08; 8:45 am] Expiration Date: April 30, 2009. required to retain or obtain benefits. BILLING CODE 4312–51–M Type of Request: Extension of a currently approved collection of Automated data collection: No information. automated data collection will take DEPARTMENT OF THE INTERIOR Description of Need: The National place. Park Service (NPS) authorizes private Description of respondents: National Park Service businesses known as concessioners to Businesses or other for-profit, provide necessary and appropriate individuals or households, not-for-profit 60-Day Notice of Intention To Request visitor facilities and services in areas of institutions. Clearance of Collection of Information; the National Park System. Concession Estimate average number of Opportunity for Public Comment authorizations may be assigned, sold, respondents: 20. transferred or encumbered by the Estimated average time burden per AGENCY: The Department of the Interior, respondent: 80 hours. National Park Service. concessioner subject to prior written approval of the NPS. The NPS requires Estimated average number of ACTION: Notice and request for that certain information be submitted responses: 20. comments. for review prior to the consummation of Frequency of response: Once per respondent. SUMMARY: Under the provisions of the any sale, transfer, assignment, or Estimated total annual reporting Paperwork Reduction Act of 1995 and 5 encumbrance. burden: 1,600 hours. CFR part 1320, the National Park 16 U.S.C. 3 provides that no contract, Comments are invited on: (1) The Service (NPS) invites public comments lease, permit or privilege granted for the practical utility of the information being on an extension of a currently approved purpose of providing accommodations gathered; (2) the accuracy of the burden collection of information (OMB #1024– for visitors to the national parks shall be hour estimate; (3) ways to enhance the 0126). assigned or transferred by such grantees, permittees, or licenses without the quality, utility, and clarity of the DATES: Public comments on this approval of the NPS, first obtained in information being collected; and (4) Information Collection Request (ICR) writing. It further provides that the NPS ways to minimize the burden to will be accepted on or before September may authorize concessioners to execute respondents, including use of 9, 2008. mortgages and issue bonds, shares of automated information collection ADDRESSES: Send comments to: Jo A. stock, and other evidences or interest in techniques or other forms of information Pendry, NPS Concession Program or indebtedness upon their rights, technology. Before including your Manager, 1849 C Street, NW. (2410), properties and franchises, for the address, phone number, e-mail address, Washington, DC 20240; or via phone at purposes of installing, enlarging, or or other personal identifying 202/513–7156; or via fax at 202/371– improving plants and equipment and information in your comment, you 2090; or via e-mail at should be aware that your entire _ extending facilities for the jo [email protected]. Also, you may send accommodation of the public within comment—including your personal comments to Leonard E. Stowe, NPS national parks and monuments. 16 identifying information—may be made Information Collection Clearance U.S.C. 20(3) also provides that the publicly available at any time. While Officer, 1849 C St., NW. (2605), possessory interest of a concessioner you can ask us in your comment to Washington, DC 20240; or via e-mail at withhold your personal identifying _ may be assigned, transferred, leonard [email protected]. All responses encumbered, or relinquished. information from public review, we to this notice will be summarized and Regulations at 36 CFR, part 51, require cannot guarantee that we will be able to included in the request for the Office of that certain information be submitted do so. Management and Budget (OMB) for review by the NPS prior to the Dated: June 10, 2008. approval. All comments will become a consummation of any sale, transfer, Leonard E. Stowe, matter of public record. assignment or encumbrance. To Request a Draft of Proposed NPS, Information Collection Clearance The information requested is used to Officer. Collection of Information Contact: Jo A. determine whether or not the proposed Pendry, NPS Concession Program [FR Doc. E8–15592 Filed 7–10–08; 8:45 am] transaction will result in decreased BILLING CODE 4312–53–M Manager, 1849 C St., NW. (2410), services to the public, the lack of a Washington, DC 20240; or via phone at reasonable opportunity for profit over 202/513–7156; or via fax at 202/371– the remaining term of the authorization, 2090; or via email at or rates in excess of existing approved DEPARTMENT OF JUSTICE [email protected]. rates to the public. In addition, pursuant Notice of Lodging of Consent Decree FOR FURTHER INFORMATION CONTACT: to the regulations at 36 CFR, Part 51, the Under the Safe Drinking Water Act Erica Chavis, NPS Concessions value of rights for intangible assets such Specialist, 1849 C St., NW (2410), as the concession contract, right of Notice is hereby given that on June Washington, DC 20240; or via phone at preference in renewal, user days, or low 30, 2008, a proposed Consent Decree 202/513–7144; or via e-mail at fees belong to the Government. If any (the ‘‘Decree’’) in United States v. Town [email protected]. You are entitled portion of the purchase price is of Newburgh, New York, Civil Action

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No. 08 Civ. 5902 (SCR) was lodged with along North Carpenter Avenue and West DEPARTMENT OF JUSTICE the United States District Court for the Stone Street to the City of Newburgh’s Southern District of New York. sanitary sewer system. This project will Notice of Settlement Agreement In a complaint, filed simultaneously prevent waste in septic systems from In accordance with Departmental with the Decree, the United States discharging directly into the ground Policy, 28 CFR 50.7, notice is hereby alleged that, between 2005 and 2007, and, in some cases, running above given of a proposed settlement the drinking water system owned and ground to other water bodies in the area, agreement in In re Jack R. Bennett, to operated by the Town of Newburgh (the such as Orange Lake and tributaries to obtain injunctive relief and impose civil ‘‘Town’’) violated the Safe Drinking the Hudson River. In addition, the Town penalties against Jack R. Bennett for Water Act, 42 U.S.C. 300f, et seq., and agreed to replace existing catch basins alleged violations of Clean Water Act its implementing regulations in several connected to pipes that discharge into sections 301(a) and 404, 33 U.S.C. 1311, respects. First, the United States alleged Orange Lake with new catch basins 13411, by discharging fill material that the Town repeatedly exceeded without a permit into wetlands adjacent maximum contaminant levels for certain equipped to prevent sediment and to the Neuse River in Goldsboro, North disinfectant byproducts, namely floatable debris from flowing into the lake. The value of these supplemental Carolina. haloacetic acids. The United States The proposed Settlement Agreement further alleged that the Town failed to environmental projects is estimated at $912,000. resolves these allegations by requiring comply with an Administrative Order Jack R. Bennett to restore the impacted issued by the United States The Department of Justice will area and to pay a civil penalty. The Environmental Protection Agency receive, for a period of thirty (30) days Department of Justice will accept (‘‘EPA’’) requiring the Town to monitor from the date of this publication, written comments relating to this drinking water quality and report the comments relating to the Decree. proposed Settlement Agreement for monitoring results to the Orange County Comments should be addressed to the thirty (30) days from the date of Department of Health. The lawsuit also Assistant Attorney General, publication of this Notice. Please charged that the Town had failed to Environment and Natural Resources address comments to Neal I. Fowler, provide the required notice to the public Division, and either e-mailed to Assistant United States Attorney, on each occasion that the Town’s [email protected] or United States Attorney’s Office, Terry drinking water exceeded the maximum mailed to P.O. Box 7611, U.S. Sanford Federal Building, 310 New Bern contaminant levels for disinfectant Department of Justice, Washington, DC Avenue, Suite 800, Raleigh, North byproducts. Carolina 27601–1461, and refer to In re Pursuant to the Decree, the Town 20044–7611, and should refer to United Jack R. Bennett, United States District shall construct a water treatment facility States v. Town of Newburgh, New York, Court for the Eastern District of North to filter the drinking water it draws from D.J. Ref. 90–5–1–1–08838. Carolina, DJ # 90–5–1–1–18297. The Decree may be examined at the the Delaware Aqueduct, the Town’s The proposed Settlement may be principal water source. The Decree Office of the United States Attorney, 86 viewed at http://www.usdoj.gov/enrd/ requires the Town to complete Chambers Street, 3rd Floor, New York, Consent_Decrees.html. construction of the facility by May 1, New York 10007, and at U.S. EPA 2013, pursuant to a schedule of 29 Region 2, Office of Regional Counsel, Stephen Samuels, interim construction milestones. 290 Broadway, New York, New York Assistant Chief Environmental Defense The Decree further requires the Town 10007–1866. During the public Section, Environment & Natural Resources to implement a number of interim comment period, the Decree may also be Division. measures to protect the quality of its examined on the following Department [FR Doc. E8–15504 Filed 7–10–08; 8:45 am] drinking water until the Town has fully of Justice Web site, http:// BILLING CODE 4410–15–M complied with the long term www.usdoj.gov/enrd/ construction of the water treatment Consent_Decrees.html. A copy of the facility. For example, the Decree DEPARTMENT OF JUSTICE Decree may also be obtained by mail mandates ongoing monitoring of the water that the Town obtains from the from the Consent Decree Library, P.O. Antitrust Division Delaware Aqueduct for contaminants, as Box 7611, U.S. Department of Justice, Notice Pursuant to the National well as monthly reporting of the Washington, DC 20044–7611 or by Cooperative Research and Production monitoring data to EPA, the State of faxing or e-mailing a request to Tonia Act of 1993—Cable Television New York and Orange County. Under Fleetwood ([email protected]), Laboratories, Inc. the Decree, the Town’s water must also fax no. (202) 514–0097, phone meet water quality standards applicable confirmation number (202) 514–1547. In Notice is hereby given that, on May to water systems that are not required to requesting a copy from the Consent 21, 2008, pursuant to Section 6(a) of the install treatment facilities. Decree Library, please enclose a check National Cooperative Research and The Town will pay a $100,000 civil in the amount of $4.75 (25 cents per Production Act of 1993, 15 U.S.C. 4301 monetary penalty to the United States page reproduction cost) payable to the et seq. (‘‘the Act’’), Cable Television pursuant to the Decree. The Town must U.S. Treasury or, if by e-mail or fax, Laboratories, Inc. (‘‘CableLabs’’), filed also implement three environmental forward a check in that amount to the written notifications simultaneously projects to improve the water quality in Consent Decree Library at the stated with the Attorney General and the and around the Town. Specifically, the address. Federal Trade Commission disclosing Town will purchase and maintain changes in its membership. The vacant undeveloped real properties Maureen M. Katz, notifications were filed for the purpose around the Chadwick Lake Reservoir, an Assistant Chief, Environmental Enforcement of extending the Act’s provisions alternate drinking water source for the Section, Environment and Natural Resources limiting the recovery of antitrust Town, in order to protect the watershed. Division. plaintiffs to actual damages under The Town will also connect residential [FR Doc. E8–15806 Filed 7–10–08; 8:45 am] specified circumstances. Specifically, and commercial properties in the Town BILLING CODE 4410–15–P Cable Cable, Inc., Fenelon Falls,

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Ontario, CANADA, has been added as a Section 6(a) of the Act. The Department DEPARTMENT OF JUSTICE party to this venture. of Justice published a notice in the No other changes have been made in Federal Register pursuant to Section Antitrust Division either the membership or planned 6(b) of the Act on July 30, 2001 (66 FR Notice Pursuant to the National activity of the group research project. 39336). Membership in this group research Cooperative Research and Production project remains open, and CableLabs The last notification was filed with Act of 1993—National Floor Safety intends to file additional written the Department on December 21, 2007. Institute notifications disclosing all changes in A notice was published in the Federal Register pursuant to Section 6(b) of the Notice is hereby given that, on May membership. 22, 2008, pursuant to Section 6(a) of the Act on February 8, 2008 (73 FR 7592). On August 8, 1988, CableLabs filed its National Cooperative Research and original notification pursuant to Section Patricia A. Brink, Production Act of 1993, 15 U.S.C. 4301 6(a) of the Act. The Department of et seq. (‘‘the Act’’), National Floor Safety Justice published a notice in the Federal Deputy Director of Operations, Antitrust Division. Institute (‘‘NFSI’’) has filed written Register pursuant to Section 6(b) of the [FR Doc. E8–15557 Filed 7–10–08; 8:45 am] notifications simultaneously with the Act on September 7, 1988 (53 FR Attorney General and the Federal Trade 34593). BILLING CODE 4410–11–M Commission disclosing (1) the name and The last notification was filed with principal place of business of the the Department on May 7, 2008. A DEPARTMENT OF JUSTICE standards development organization notice was published in the Federal and (2) the nature and scope of its Register pursuant to Section 6(b) of the Antitrust Division standards development activities. The Act on June 17, 2008 (73 FR 34327). notifications were filed for the purpose Patricia A. Brink, Notice Pursuant to the National of invoking the Act’s provisions limiting Deputy Director of Operations, Antitrust Cooperative Research and Production the recovery of antitrust plaintiffs to Division. Act of 1993—International Association actual damages under specified [FR Doc. E8–15555 Filed 7–10–08; 8:45 am] for Continuing Education and Training circumstances. Pursuant to Section 6(b) of the Act, BILLING CODE 4410–11–M Notice is hereby given that, on May the name and principal place of business of the standards development 22, 2008, pursuant to Section 6(a) of the DEPARTMENT OF JUSTICE organization is: National Floor Safety National Cooperative Research and Institute, Southlake, TX. The nature and Production Act of 1993, 15 U.S.C. 4301 Antitrust Division scope of NFSI’s standards development et seq. (‘‘the Act’’), International activities are: Develop safety standards Notice Pursuant to the National Association for Continuing Education intended to provide preventative Cooperative Research and Production and Training (‘‘IACET’’) has filed measures in all manner of pedestrian Act of 1993—Interchangeable Virtual written notifications simultaneously ambulatory safety in regards to slips, Instruments Foundation, Inc with the Attorney General and the trips and falls. Federal Trade Commission disclosing Notice is hereby given that, on June 2, (1) the name and principal place of Patricia A. Brink, 2008, pursuant to Section 6(a) of the business of the standards development Deputy Director of Operations, Antitrust National Cooperative Research and Division. organization and (2) the nature and Production Act of 1993, 15 U.S.C. 4301 [FR Doc. E8–15554 Filed 7–10–08; 8:45 am] scope of its standards development et seq. (‘‘the Act’’) Interchangeable BILLING CODE 4410–11–M activities. The notifications were filed Virtual Instruments Foundation, Inc. has filed written notifications for the purpose of invoking the Act’s simultaneously with the Attorney provisions limiting the recovery of DEPARTMENT OF JUSTICE General and the Federal Trade antitrust plaintiffs to actual damages Commission disclosing changes in its under specified circumstances. Antitrust Division membership. The notifications were Pursuant to Section 6(b) of the Act, Notice Pursuant to the National filed for the purpose of extending the the name and principal place of Cooperative Research and Production Act’s provisions limiting the recovery of business of the standards development Act of 1993—PXI Systems Alliance, Inc antitrust plaintiffs to actual damages organization is: International under specified circumstances. Association for Continuing Education Notice is hereby given that, on June 4, Specifically, TTi Ltd., Huntington, and Training, McLean, VA. The nature 2008, pursuant to Section 6(a) of the Cambridgeshire, UNITED KINGDOM and scope of IACET’s standards National Cooperative Research and has been added as a party to this development activities are: To create Production Act of 1993, 15 U.S.C. 4301 venture. standards for the development and et seq. (‘‘the Act’’), PXI Systems No other changes have been made in Alliance, Inc. has filed written delivery of non-credit continuing either the membership or planned notifications simultaneously with the education and training for consistency activity of the group research project. Attorney General and the Federal Trade in procedural requirements related to Membership in this group research Commission disclosing changes in its project remains open, and such development and delivery. membership. The notifications were Interchangeable Virtual Instruments Patricia A. Brink, filed for the purpose of extending the Foundation, Inc. intends to file Deputy Director of Operations, Antitrust Act’s provisions limiting the recovery of additional written notifications Division. antitrust plaintiffs to actual damages under specified circumstances. disclosing all changes in membership. [FR Doc. E8–15566 Filed 7–10–08; 8:45 am] On May 29, 2001, Interchangeable Specifically, Averna, Montreal, Quebec, Virtual Instruments Foundation, Inc. BILLING CODE 4410–11–M CANADA has been added as a party to filed its original notification pursuant to this venture. Also, National Technical

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Systems, Albuquerque, NM; and Amida period, the State Workforce Agency will using this method, you must submit Technology, Inc., Chung Ho, Taipei, furnish a written notice of potential three copies of your comments and TAIWAN have withdrawn as parties to entitlement to each individual who has attachments to the OSHA Docket Office, this venture. exhausted all rights to regular benefits Docket No. OSHA–2008–0022, U.S. No other changes have been made in and is potentially eligible for EB (20 Department of Labor, Occupational either the membership or planned CFR 615.13(c)(1)). Safety and Health Administration, activity of the group research project. Persons who believe they may be Room N–2625, 200 Constitution Membership in this group research entitled to EB, or who wish to inquire Avenue, NW., Washington, DC 20210. project remains open, and PXI Systems about their rights under the program, Deliveries (hand, express mail, Alliance, Inc. intends to file additional should contact their state workforce messenger, and courier service) are written notifications disclosing all agency. accepted during the Department of changes in membership. FOR FURTHER INFORMATION CONTACT: Labor’s and Docket Office’s normal On November 22, 2000, PXI Systems Scott Gibbons, U.S. Department of business hours, 8:15 a.m. to 4:45 p.m., Alliance, Inc. filed its original Labor, Employment and Training e.t. notification pursuant to Section 6(a) of Administration, Office of Workforce Instructions: All submissions must the Act. The Department of Justice Security, 200 Constitution Avenue, include the Agency name and OSHA published a notice in the Federal NW., Frances Perkins Bldg., Room S– docket number for the Information Register pursuant to Section 6(b) of the 4231, Washington, DC 20210, telephone Collection Request (ICR) (OSHA–2008– Act on March 8, 2001 (66 FR 13971). number (202) 693–3008 (this is not a 0022). All comments, including any The last notification was filed with toll-free number) or by e-mail: personal information you provide, are the Department on March 25, 2008. A [email protected]. placed in the public docket without notice was published in the Federal change, and may be made available Register pursuant to Section 6(b) of the Signed in Washington, DC, this 27th day of online at http://www.regulations.gov. Act on May 9, 2008 (73 FR 26413). June, 2008. For further information on submitting Brent R. Orrell, Patricia A. Brink, comments see the ‘‘Public Deputy Assistant Secretary of Labor for Participation’’ heading in the section of Deputy Director of Operations, Antitrust Employment and Training. Division. this notice titled SUPPLEMENTARY [FR Doc. E8–15807 Filed 7–10–08; 8:45 am] INFORMATION. [FR Doc. E8–15556 Filed 7–10–08; 8:45 am] BILLING CODE 4510–FW–P Docket: To read or download BILLING CODE 4410–11–M comments or other material in the docket, go to http://www.regulations.gov DEPARTMENT OF LABOR or the OSHA Docket Office at the DEPARTMENT OF LABOR address above. All documents in the Occupational Safety and Health docket (including this Federal Register Employment and Training Administration notice) are listed in the http:// Administration [Docket No. OSHA–2008–0022] www.regulations.gov index; however, Notice of a Change in Status of an some information (e.g., copyrighted Coke Oven Emissions Standard; Extended Benefit (EB) Period for material) is not publicly available to Extension of the Office of Management Rhode Island read or download through the Web site. and Budget’s (OMB) Approval of All submissions, including copyrighted AGENCY: Employment and Training Information Collection (Paperwork) material, are available for inspection Administration, Labor. Requirements and copying at the OSHA Docket Office. ACTION: Notice. AGENCY: Occupational Safety and Health You may also contact Todd Owen at the Administration (OSHA), Labor. address below to obtain a copy of the SUMMARY: This notice announces a ICR. change in benefit period eligibility ACTION: Request for public comment. under the EB Program for Rhode Island. FOR FURTHER INFORMATION CONTACT: SUMMARY: The following change has occurred OSHA solicits public Todd Owen, Directorate of Standards since the publication of the last notice comment concerning its proposal to and Guidance, OSHA, U.S. Department regarding the State’s EB status: extend OMB approval of the of Labor, Room N–3609, 200 • Effective June 22, 2008, Rhode information collection requirements Constitution Avenue, NW., Washington, Island’s 3-month seasonally adjusted specified by the Coke Oven Emissions DC 20210; telephone (202) 693–2222. total unemployment rate rose to the 6.5 Standard (29 CFR 1910.1029). SUPPLEMENTARY INFORMATION: percent threshold and exceeded 110 DATES: Comments must be submitted I. Background percent of the corresponding rate in the (postmarked, sent, or received) by prior year. This causes the State to be September 9, 2008. The Department of Labor, as part of its triggered ‘‘on’’ to an EB period ADDRESSES: Electronically: You may continuing effort to reduce paperwork beginning July 6, 2008. submit comments and attachments and respondent (i.e., employer) burden, electronically at http:// conducts a preclearance consultation Information for Claimants www.regulations.gov, which is the program to provide the public with an The duration of benefits payable in Federal eRulemaking Portal. Follow the opportunity to comment on proposed the EB Program, and the terms and instructions online for submitting and continuing information collection conditions on which they are payable, comments. requirements in accordance with the are governed by the Federal-State Facsimile: If your comments, Paperwork Reduction Act of 1995 (44 Extended Unemployment Compensation including attachments, are not longer U.S.C. 3506(c)(2)(A)). This program Act of 1970, as amended, and the than 10 pages, you may fax them to the ensures that information is in the operating instructions issued to the OSHA Docket Office at (202) 693–1648. desired format, reporting burden (time states by the U.S. Department of Labor. Mail, hand delivery, express mail, and costs) is minimal, collection In the case of a state beginning an EB messenger, or courier service: When instruments are clearly understood, and

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OSHA’s estimate of the information Title: Coke Oven Emissions Standard comments and access the docket is collection burden is accurate. The (29 CFR 1910.1029). available at the Web site’s ‘‘User Tips’’ Occupational Safety and Health Act of OMB Number: 1218–0128. link. Contact the OSHA Docket Office 1970 (the OSH Act) (29 U.S.C. 651 et Affected Public: Business or other for- for information about materials not seq.) authorizes information collection profits; Federal Government; State, available through the Web site, and for by employers as necessary or Local or Tribal Government. assistance in using the Internet to locate appropriate for enforcement of the OSH Frequency: On occasion. docket submissions. Act or for developing information Average Time per Response: Varies V. Authority and Signature regarding the causes and prevention of from 5 minutes (.08 hour) to provide occupational injuries, illnesses, and information to the examining physician Edwin G. Foulke, Jr., Assistant accidents (29 U.S.C. 657). The OSH Act to 1 hour to conduct exposure Secretary of Labor for Occupational also requires that OSHA obtain such monitoring. Safety and Health, directed the information with minimum burden Estimated Total Burden Hours: preparation of this notice. The authority upon employers, especially those 52,701. for this notice is the Paperwork operating small businesses, and to Estimated Cost (Operation and Reduction Act of 1995 (44 U.S.C. 3506 reduce to the maximum extent feasible Maintenance): $815,488. et seq.) and Secretary of Labor’s Order unnecessary duplication of efforts in IV. Public Participation—Submission of No. 5–2007 (72 FR 31159). obtaining information (29 U.S.C. 657). Comments on This Notice and Internet Signed at Washington, DC, on July 7, 2008. The information collection Access to Comments and Submissions Edwin G. Foulke, Jr., requirements in the Coke Oven You may submit comments in Assistant Secretary of Labor for Occupational Emissions Standard provide protection response to this document as follows: Safety and Health. for employees from the adverse health (1) Electronically at http:// [FR Doc. E8–15769 Filed 7–10–08; 8:45 am] effects associated with exposure to coke www.regulations.gov, which is the BILLING CODE 4510–26–P oven emissions. In this regard, the Coke Federal eRulemaking Portal; (2) by Oven Emissions Standard requires facsimile (FAX); or (3) by hard copy. All employers to monitor employees’ comments, attachments, and other exposure to coke oven emissions, NATIONAL AERONAUTICS AND material must identify the Agency name monitor employee health, and provide SPACE ADMINISTRATION and the OSHA docket number for the employees with information about their ICR (Docket No. OSHA–2008–0022). [Notice (08–054)] exposures and the health effects of You may supplement electronic exposure to coke oven emissions. National Environmental Policy Act; submissions by uploading document Disposition of Space Shuttle II. Special Issues for Comment files electronically. If you wish to mail Program’s Real and Personal Property OSHA has a particular interest in additional materials in reference to an comments on the following issues: electronic or facsimile submission, you AGENCY: National Aeronautics and • Whether the proposed information must submit them to the OSHA Docket Space Administration (NASA). collection requirements are necessary Office (see the section of this notice ACTION: Finding of no significant for the proper performance of the titled ADDRESSES). The additional impact. Agency’s functions, including whether materials must clearly identify your SUMMARY: Pursuant to the National the information is useful; electronic comments by your name, • The accuracy of OSHA’s estimate of date, and the docket number so the Environmental Policy Act of 1969 the burden (time and costs) of the Agency can attach them to your (NEPA), as amended (42 U.S.C. 4321 et information collection requirements, comments. seq.), the Council on Environmental including the validity of the Because of security procedures, the Quality (CEQ) Regulations for methodology and assumptions used; use of regular mail may cause a Implementing the Procedural Provisions • The quality, utility, and clarity of significant delay in the receipt of of NEPA (40 CFR parts 1500–1508), and the information collected; and comments. For information about NASA policy and procedures (14 CFR • Ways to minimize the burden on security procedures concerning the Part 1216, Subpart 1216.3), NASA has employers who must comply; for delivery of materials by hand, express made a Finding of No Significant Impact example, by using automated or other delivery, messenger, or courier service, (FONSI) with respect to the disposition technological information collection please contact the OSHA Docket Office of the Space Shuttle Program’s (SSP’s) and transmission techniques. at (202) 693–2350 (TTY (877) 889– real and personal property using a 5627). structured process consisting of a III. Proposed Actions Comments and submissions are coordinated series of actions. Under OSHA is proposing to extend the posted without change at http:// Presidential direction, NASA will cease information collection requirements www.regulations.gov. Therefore, OSHA operations of its SSP by 2010. A number contained in the Coke Oven Emissions cautions commenters about submitting of assets will be dispositioned during Standard (29 CFR 1910.1029). The personal information such as social the transition and retirement (T&R) Agency is requesting to increase its security numbers and date of birth. activities. NASA proposes to implement current burden hour total from 51,756 Although all submissions are listed in a structured process for the disposition hours to 52,701 for a total increase of the http://www.regulations.gov index, of the SSP real and personal property 945 hours. The adjustment is primarily some information (e.g., copyrighted consisting of a coordinated series of the result of identifying three additional material) is not publicly available to actions. SSP T&R activities would coke oven batteries. The Agency will read or download through this Web site. include potential retirement, transfer, summarize the comments submitted in All submissions, including copyrighted and disposal of property. SSP property response to this notice and will include material, are available for inspection disposition activities would extend for this summary in the request to OMB. and copying at the OSHA Docket Office. several years beyond 2010. On January Type of Review: Extension of a Information on using the http:// 14, 2004, President George W. Bush currently approved collection. www.regulations.gov Web site to submit presented his Vision for U.S. Space

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Exploration (hereinafter ‘‘the Vision’’) to Center, AL 35812, Phone: (256) 544– (i) NASA, Michoud Assembly the nation. Congress expressly endorsed 5560, mail: [email protected]. Facility, New Orleans, LA 70189 (504– the President’s exploration initiative Technical: Ms. Donna L. Holland, 257–2629); and and provided additional direction for Environmental Engineering Office, (j) NASA, White Sands Test Facility, the initiative in the NASA NASA MSFC, AS10, Marshall Space Las Cruces, NM 88004 (505–524–5024). Authorization Act of 2005. In Flight Center, AL 35812, Phone: (256) In addition the Final PEA may be announcing the Vision, the President 544–7201, e-mail: examined at: directed NASA to use the Space Shuttle [email protected]. (k) Jet Propulsion Laboratory, Visitors Lobby, Building 249, 4800 Oak Grove to fulfill its obligation to complete SUPPLEMENTARY INFORMATION: NASA has Drive, Pasadena, CA 91109. assembly of the International Space reviewed the Final PEA prepared for the Station and then retire the Space Shuttle Alternatives that were evaluated disposition of the SSP’s real and include the: (1) No-Action Alternative; by 2010. Under Presidential direction, personal property and has determined NASA will cease operations of its SSP and (2) the Proposed Action Alternative. that it represents an accurate and Under the No-Action Alternative, NASA activities at all locations, including adequate analysis of the scope and level Kennedy Space Center (KSC), Florida; would not implement the proposed of associated environmental impacts. comprehensive and coordinated effort to Johnson Space Center (JSC), Ellington The Final PEA is hereby incorporated Field (EF), and El Paso Forward disposition SSP property under a by reference in this FONSI. structured and centralized SSP process. Operating Location (EPFOL), Texas; Under NASA’s Proposed Action, SSP Instead, the disposition of SSP property Stennis Space Center (SSC), Mississippi; transition and property disposal would occur on a Center-by-Center and Michoud Assembly Facility (MAF), activities would be expected to occur at item-by-item basis in the normal course Louisiana; Marshall Space Flight Center the following NASA sites: of NASA’s ongoing facility and program (MSFC), Alabama; White Sands Test —Dryden Flight Research Center, management. Under the Proposed Facility (WSTF), New Mexico; Dryden Edwards Air Force Base, California. Action (which is also NASA’s Preferred Flight Research Center (DFRC) and —George C. Marshall Space Flight Alternative), NASA would conduct Palmdale (Air Force Plant 42, Site 1), Center, Huntsville, Alabama. disposition actions for real and personal California; and the associated contractor —John F. Kennedy Space Center, property using a structured process facilities. The cessation of SSP Brevard County, Florida. consisting of a coordinated series of operations will necessitate the —John C. Stennis Space Center, actions in accordance with 41 CFR, disposition of all program-related assets. Hancock County, Mississippi. Chapter 101, ‘‘Federal Property —Johnson Space Center El Paso Public comments received on the Draft Management Regulations;’’ Subchapter Forward Operating Location, El Paso, Programmatic Environmental H, ‘‘Utilization and Disposal;’’ Federal Texas. Assessment (PEA) during the public Acquisition Regulation (FAR) Part 45; —Johnson Space Center Ellington Field, review period conducted from February 48 CFR Part 45, ‘‘Government Property’’; Houston, Texas. 27, 2008, through March 28, 2008, are and NASA FAR Supplement Part 1845, provided along with responses in —Johnson Space Center White Sands Test Facility (and the U.S. Army’s 48 CFR 1845, ‘‘Government Property’’. Appendix E of the Final PEA. When the SSP disposes of or transfers White Sands Missile Range), Las DATES: July 11, 2008. real or personal property, the Cruces, New Mexico. ADDRESSES: The Final PEA may be —Lyndon B. Johnson Space Center, responsible NASA Center will evaluate reviewed at the following location: Houston, Texas. the property using Federal and NASA (a) NASA Headquarters, Library, —Langley Research Center, Hampton, property management regulations and Room 1J20, 300 E Street, SW., Virginia. guidance. Washington, DC 20546–0001 (202–358– —Michoud Assembly Facility, New The notice of availability of the Draft 0168). Orleans, Louisiana. PEA was published in the Federal It also may be examined at the —Palmdale Air Force Plant 42, Site 1, Register on February 28, 2008. Notice following locations by contacting the Palmdale, California. also was published in local newspapers pertinent Freedom of Information Act The Final PEA may be viewed at the serving communities near NASA Office: following NASA locations by contacting Centers and installations primarily involved in SSP. NASA received 20 (b) NASA, George C. Marshall Space the pertinent Freedom of Information comments on the Draft PEA. Flight Center, Huntsville, AL 35812 Act Office in writing or by telephoning: Environmental concerns were expressed (256–544–1837); and (a) NASA, Ames Research Center, in the context of general interest and (c) NASA, John F. Kennedy Space Moffett Field, CA 94035 (650–604– 3273); support, historic and cultural property Center, FL 32899 (321–867–2745). disposition, and natural resource Hard copies of the Final PEA also may (b) NASA, Dryden Flight Research Center, Edwards, CA 93523 (661–276– management. These comments are be viewed at other NASA Centers (see addressed in the Final PEA, and were SUPPLEMENTARY INFORMATION below). 2704); (c) NASA, Glenn Research Center at considered along with responses in Limited hard copies of the Final PEA Lewis Field, Cleveland, OH 44135 (1– reaching NASA’s decision. are available, on a first request basis, by 866–404–3642); The analyses of environmental contacting Donna L. Holland at the (d) NASA, Goddard Space Flight impacts due to activities associated with address or telephone number indicated Center, Greenbelt, MD 20771 (301–286– the disposition of shuttle property herein. The Final PEA will be available 4721); revealed minimal to no impact on for viewing online at the following (e) NASA, John C. Stennis Space environmental resources with the address: http://www.nasa.gov/ exception of the effect on historical _ Center, MS 39529 (228–688–2118); mission pages/shuttle/main/pea.html. (g) NASA, Lyndon B. Johnson Space resources. The impact to historic FOR FURTHER INFORMATION CONTACT: Center, Houston, TX 77058 (281–483– resources was found to be moderate, but General: Ms. Monica Vest, Government 8612); adverse. The moderate impact is due to Community Relations Dept., NASA (h) NASA, Langley Research Center, the potential for demolition or MSFC, CS30, Marshall Space Flight Hampton, VA 23681 (757–864–2497); modification of buildings that will no

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longer be needed after the retirement of (Navy) to issue an amendment to a 1613. Scoping surveys were performed the SSP. NASA believes that the materials permit which is governed by in March 2004, April 2005, and ultimate impact will be moderate the Navy’s Master Materials License No. September 2006. Based on the Navy’s because, before any final decision is 45–23645–01NA pursuant to 10 CFR historical knowledge of the site and the made about demolishing or modifying Part 30. The NRC approval would results of the scoping surveys, the Navy any facility, NASA will conduct an authorize the Navy to release, for determined that only routine appropriate level of environmental and unrestricted use, Building 5 (the decontamination activities, in cultural resource analysis. If any such Facility), located at the Naval Air accordance with their NRC-approved, properties are listed in or eligible for Warfare Center Weapons Division in operating radiation safety procedures, listing in the National Register of China Lake, California. The Navy were required. The Navy was not Historic Places, NASA will take no requested this action in a letter dated required to submit a decommissioning action that would affect any such February 8, 2008. The NRC has prepared plan to the NRC because worker cleanup property until the National Historic an Environmental Assessment (EA) in activities and procedures were Preservation Act Section 106 process is support of this proposed action in consistent with those approved for complete. accordance with the requirements of routine operations. The Navy conducted On the basis of the evaluations Title 10, Code of Federal Regulations Facility surveys in September 2007, and documented in the SSP T&R Final PEA, (CFR), Part 51 (10 CFR Part 51). Based provided information to the NRC to the environmental impacts associated on the EA, the NRC has concluded that demonstrate that it meets the criteria in with the proposed action would not a Finding of No Significant Impact Subpart E of 10 CFR Part 20 for individually or cumulatively have a (FONSI) is appropriate with respect to unrestricted release and for permit significant impact on the quality of the the proposed action. The proposed termination. human environment. An Environmental action will be taken following the Need for the Proposed Action Impact Statement need not and will not publication of this FONSI and EA in the be prepared, and NASA is issuing this Federal Register. The Navy is requesting approval of Finding of No Significant Impact. this permitting action because it has Background ceased conducting licensed activities at William H. Gerstenmaier, The materials permit for the Facility the Facility and seeks its unrestricted Associate Administrator for Space (NRMP No. 04–68307–WINP) was use and the termination of its materials Operations. issued on August 7, 2003, and permit. [FR Doc. E8–15751 Filed 7–10–08; 8:45 am] authorized the use of carbon-14 for Environmental Impacts of the Proposed BILLING CODE 7510–13–P preparation of radio-labeled derivatives Action of an energetic material for analysis by The historical review of licensed offsite laboratories. Additionally, bottles activities conducted in the Facility NUCLEAR REGULATORY of thorium-232 oxide powder and COMMISSION shows that such activities involved use uranium dioxide (limited to amounts of of the following radionuclides with half- [Docket No. 030–29462] 15 grams and 100 grams, respectively) lives greater than 120 days: Carbon-14 were also stored at the Facility. and thorium-232. Prior to performing Notice of Availability of Environmental the final status survey, the Navy Assessment and Finding of No II. Environmental Assessment conducted decontamination activities, Significant Impact Related to the Identification of Proposed Action as necessary, in the areas of the Facility Approval for the Department of the The proposed action would approve affected by these radionuclides. Navy To Issue an Amendment to a the Navy’s February 8, 2008, request to The Navy conducted a final status Materials Permit for the Unrestricted release Building 5 at the Naval Air survey in September 2007. This survey Release of Building 5 at the Naval Air Warfare Center Weapons Division covered building and work area surfaces Warfare Center Weapons Division in (NAWC) in China Lake, California (the in the Facility. The final status survey China Lake, CA, Under Byproduct Facility) for unrestricted use and the report was submitted by letter dated Materials License No. 45–23645–01NA termination of its materials permit. February 8, 2008. For the carbon-14, the AGENCY: Nuclear Regulatory NAWC China Lake is a 1.1 million Navy elected to demonstrate compliance Commission. acre (1735 square mile) military with the radiological criteria for ACTION: Issuance of Environmental reservation in the upper Mojave Desert unrestricted release as specified in 10 Assessment and Finding of No of south central California. It is divided CFR 20.1402 by using the screening Significant Impact for License into two major ranges, the North and approach described in NUREG–1757, Amendment. South Ranges. The Facility is located on ‘‘Consolidated NMSS Decommissioning the North Range. The carbon-14 work Guidance,’’ Volume 2. The Navy used FOR FURTHER INFORMATION CONTACT: area was confined to a corner of Room the radionuclide-specific derived Orysia Masnyk Bailey, Health Physicist, 1613 within the Facility, with concentration guideline levels (DCGLs), Materials Security & Industrial Branch, dimensions of approximately 10 feet by developed there by the NRC, which Division of Nuclear Materials Safety, 13 feet. The work area contained a table, comply with the dose criterion in 10 Region I, 475 Allendale Road, King of a bench counter containing a sink, an CFR 20.1402. These DCGLs define the Prussia, Pennsylvania 19406; telephone adjoining bench counter, a fume hood, maximum amount of residual (864) 427–1032; fax number (610) 680– and a table. Room 1613 is radioactivity on building surfaces, 3497; or by e-mail: [email protected]. approximately 18 feet by 30 feet by 15 equipment, and materials, and in soils, SUPPLEMENTARY INFORMATION: feet high in the carbon-14 work area and that will satisfy the NRC requirements 20 feet high on the opposite side of the in Subpart E of 10 CFR Part 20 for I. Introduction room. unrestricted release. The Navy’s final The U.S. Nuclear Regulatory In November 2005, the Navy ceased status survey results were below these Commission (NRC) is considering licensed activities at the Facility and DCGLs and are in compliance with the allowing the Department of the Navy initiated decontamination of Room As Low As Reasonably Achievable

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(ALARA) requirement of 10 CFR that could result in cumulative NRC staff has also determined that the 20.1402. The NRC thus finds that the environmental impacts. proposed action is not the type of Navy’s final status survey results are The NRC staff finds that the proposed activity that has the potential to cause acceptable. release of the Facility for unrestricted effects on historic properties. Therefore, For the thorium-232, the Navy elected use and the termination of the permit is no further consultation is required to demonstrate compliance with the in compliance with 10 CFR 20.1402. under Section 106 of the National radiological criteria for unrestricted Based on its review, the staff considered Historic Preservation Act. release as defined in 10 CFR 20.1402 by the impact of the residual radioactivity developing a DCGL for thorium of 450 in the Facility and concluded that the III. Finding of No Significant Impact disintegrations per minute gross alpha proposed action will not have a The NRC staff has prepared this EA in activity per 100 square-centimeters area significant effect on the quality of the support of the proposed action. On the (a dpm/100cm2) for the Facility. The human environment. basis of this EA, the NRC finds that past history of the Facility suggests that there are no significant environmental Environmental Impacts of the use of a surface criterion is appropriate. impacts from the proposed action, and Alternatives to the Proposed Action The Navy developed their final DCGL that preparation of an environmental by utilizing the DANDD code and its Due to the largely administrative impact statement is not warranted. default industrial scenario to calculate nature of the proposed action, its Accordingly, the NRC has determined the ‘‘default’’ DCGL for thorium. The environmental impacts are small. that a Finding of No Significant Impact Navy then utilized the suggested Therefore, the only alternative the staff is appropriate. resuspension factor in NUREG–1720, considered is the no-action alternative, ‘‘Re-evaluation of the Indoor under which the staff would leave IV. Further Information Resuspension Factor for the Screening things as they are by simply denying the Documents related to this action, Analysis of the Building Occupancy amendment request. This no-action including the application for license Scenario for NRC’s License Termination alternative is not feasible because it amendment and supporting Rule—Draft Report’’ to calculate a site- conflicts with 10 CFR 30.36(d), documentation, are available specific DCGL. The Navy developed a requiring that decommissioning of electronically at the NRC’s Electronic ratio of the default resuspension value byproduct material facilities be Reading Room at http://www.nrc.gov/ in the code and the re-evaluated value completed and approved by the NRC reading-rm/adams.html. From this site, from draft NUREG–1720 and multiplied after licensed activities cease. The you can access the NRC’s Agencywide the ‘‘default’’ DCGL for thorium by this NRC’s analysis of the Navy’s final status Document Access and Management ratio to result in a site-specific 450 a survey data confirmed that the Facility System (ADAMS), which provides text dpm/100 cm2 DCGL for thorium. The meets the requirements of 10 CFR and image files of NRC’s public Navy thus determined the maximum 20.1402 for unrestricted release and for documents. The documents related to amount of residual radioactivity on permit termination. Additionally, this action are listed below, along with building surfaces, equipment, and denying the amendment request would their ADAMS accession numbers. materials that will satisfy the NRC result in no change in current NUREG–1757, (Consolidated NMSS requirement in Subpart E of 10 CFR Part environmental impacts. The Decommissioning Guidance;’’ 20 for unrestricted release. The NRC environmental impacts of the proposed 1. Title 10 Code of Federal reviewed the Navy’s methodology and action and the no-action alternative are Regulations, Part 20, Subpart E, proposed DCGL, and concluded that the therefore similar, and the no-action ‘‘Radiological Criteria for License proposed DCGL is acceptable for use as alternative is accordingly not further Termination;’’ release criteria for the Facility. The considered. 2. Title 10, Code of Federal Navy’s final status survey results were Regulations, Part 51, ‘‘Environmental below this DCGL, and are thus Conclusion Protection Regulations acceptable. The NRC staff has concluded that the 3. For Domestic Licensing and Related Based on its review, the staff has proposed action is consistent with the Regulatory Functions;’’ determined that the affected NRC’s unrestricted release criteria 4. NUREG–1496, ‘‘Generic environment and any environmental specified in 10 CFR 20.1402. Because Environmental Impact Statement in impacts associated with the proposed the proposed action will not Support of Rulemaking on Radiological action are bounded by the impacts significantly impact the quality of the Criteria for License Termination of evaluated by the ‘‘Generic human environment, the NRC staff NRC–Licensed Nuclear Facilities,’’ Environmental Impact Statement in concludes that the proposed action is 5. NUREG–1720, ‘‘Re-evaluation of Support of Rulemaking on Radiological the preferred alternative. the Indoor Resuspension Factor for the Criteria for License Termination of Screening Analysis of the Building NRC–Licensed Nuclear Facilities’’ Agencies and Persons Consulted Occupancy Scenario for NRC’s License (NUREG–1496) Volumes 1–3 NRC provided a draft of this Termination Rule—Draft Report, (ML042310492, ML042320379, and Environmental Assessment to the 6. NRC License No. 45–23645–01NA ML042330385). The staff finds there California Radiological Health Branch inspection and licensing records, were no significant environmental for review on April 21, 2008. On April 7. Department of the Navy, impacts from the use of radioactive 21, 2008, the California Radiological Termination of Naval Radioactive material in the Facility. The NRC staff Health Branch responded by e-mail. The Materials Permit No. 04–68937–W1NP reviewed the docket file records and the State agreed with the conclusions of the Issued to Naval Air Warfare Center final status survey report to identify any EA, and otherwise had no comments. Weapons Division, China Lake, dated non-radiological hazards that may have The NRC staff has determined that the October 27, 2006 (ML063190505), impacted the environment surrounding proposed action is of a procedural 8. Department of the Navy, Request the Facility. No such hazards or impacts nature, and will not affect listed species Assistance in Preparing an to the environment were identified. The or critical habitat. Therefore, no further Environmental Assessment to Release NRC has identified no other radiological consultation is required under Section 7 Building 5, Michelson Laboratory, Room or non-radiological activities in the area of the Endangered Species Act. The 1613, Naval Air Warfare Center

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Weapons Division, China Lake to staff needs in its review of applications Dated at Rockville, Maryland, this 3rd day Unrestricted Use, dated February 8, for permits and licenses. of July, 2008. 2008 (ML080650464), and Revision 1 of Regulatory Guide 6.5, For the Nuclear Regulatory Commission. 9. New World Technology, Final ‘‘General Safety Standards for Stephen C. O’Connor, Status Survey Report, Building 5, Installations Using Nonmedical Sealed Acting Chief, Regulatory Guide Development Michelson Laboratory, Room 1613, Gamma-Ray Sources,’’ was issued with Branch, Division of Engineering, Office of Naval Air Warfare Center Weapons a temporary identification as Draft Nuclear Regulatory Research. Division, China Lake, CA, dated Regulatory Guide DG–6006. This guide [FR Doc. E8–15787 Filed 7–10–08; 8:45 am] November 16, 2007 (ML080650470, directs the reader to the type of BILLING CODE 7590–01–P ML080650474, and ML080650481). information acceptable to the NRC staff If you do not have access to ADAMS, to approve the initial transfer of devices or if there are problems in accessing the containing byproduct material to NUCLEAR REGULATORY documents located in ADAMS, contact persons generally licensed under Title COMMISSION the NRC Public Document Room (PDR) 10, Section 31.5, ‘‘Certain Detecting, Reference staff at 1–800–397–4209, 301– Measuring, Gauging, or Controlling Notice of Issuance of Regulatory Guide 415–4737, or by e-mail to [email protected]. Devices, and Certain Devices for AGENCY: Nuclear Regulatory These documents may also be viewed Producing Light or an Ionized Commission. electronically on the public computers Atmosphere,’’ of the Code of Federal ACTION: Notice of Issuance and located at the NRC’s PDR, O 1 F21, One Regulations (10 CFR 31.5) or equivalent Availability of Regulatory Guide 10.5, White Flint North, 11555 Rockville regulations of an Agreement State. Revision 2. Pike, Rockville, MD 20852. The PDR The requirements for transferring reproduction contractor will copy gamma-ray sources to general licensees FOR FURTHER INFORMATION CONTACT: documents for a fee. appear in 10 CFR 32.51, ‘‘Byproduct Mark Orr, Regulatory Guide Dated at King of Prussia, Pennsylvania this Material Contained in Devices for Use Development Branch, Division of 1st day of July 2008. Under § 31.5; Requirements for License Engineering, Office of Nuclear For the Nuclear Regulatory Commission. to Manufacturer, or Initially Transfer’’. Regulatory Research, U.S. Nuclear Marie Miller, One method of complying with the Regulatory Commission, Washington, requirements of 10 CFR 32.51 appears in Chief, Materials Security and Industrial DC 20555–0001, telephone (301) 415– Branch, Division of Nuclear Materials Safety, NUREG–1556, Volume 3, ‘‘Consolidated 6373 or e-mail to [email protected]. Region I. Guidance about Materials Licenses: SUPPLEMENTARY INFORMATION: [FR Doc. E8–15793 Filed 7–10–08; 8:45 am] Applications for Sealed Source and Device Evaluation and Registration.’’ I. Introduction BILLING CODE 7590–01–P This regulatory guide endorses the The U.S. Nuclear Regulatory description of the information to be Commission (NRC) is issuing a revision NUCLEAR REGULATORY submitted in the application for the to an existing guide in the agency’s COMMISSION initial transfer and installation of sealed ‘‘Regulatory Guide’’ series. This series gamma-ray sources contained in the was developed to describe and make Notice of Issuance of Regulatory Guide current revision of Volume 3 of available to the public information such NUREG–1556 as a method acceptable to as methods that are acceptable to the AGENCY: Nuclear Regulatory the NRC staff. NRC staff for implementing specific Commission. II. Further Information parts of the agency’s regulations, ACTION: Notice of Issuance and techniques that the staff uses in Availability of Regulatory Guide 6.5, In January 2008, DG–6006 was evaluating specific problems or Revision 1. published with a public comment postulated accidents, and data that the period of 60 days from the issuance of staff needs in its review of applications FOR FURTHER INFORMATION CONTACT: the guide. No comments were received for permits and licenses. Mark Orr, Regulatory Guide and the public comment period closed Revision 2 of Regulatory Guide 10.5, Development Branch, Division of on April 18, 2008. Electronic copies of ‘‘Applications for a Type A License of Engineering, Office of Nuclear Regulatory Guide 6.5, Revision 1 are Broad Scope,’’ was issued with a Regulatory Research, U.S. Nuclear available through the NRC’s public Web temporary identification as Draft Regulatory Commission, Washington, site under ‘‘Regulatory Guides’’ at Regulatory Guide DG–0015. This guide DC 20555–0001, telephone (301) 415– http://www.nrc.gov/reading-rm/doc- directs the reader to the type of 6373 or e-mail to [email protected]. collections/. information needed by the NRC staff to SUPPLEMENTARY INFORMATION: In addition, regulatory guides are evaluate an application for a Type A available for inspection at the NRC’s license of broad scope for byproduct I. Introduction Public Document Room (PDR), which is material. Title 10, Part 33, ‘‘Specific The U.S. Nuclear Regulatory located at Room O–1F21, One White Domestic Licenses of Broad Scope for Commission (NRC) is issuing a revision Flint North, 11555 Rockville Pike, Byproduct Material,’’ of the Code of to an existing guide in the agency’s Rockville, Maryland 20852–2738. The Federal Regulations (10 CFR Part 33) ‘‘Regulatory Guide’’ series. This series PDR’s mailing address is USNRC PDR, regulates this type of license. was developed to describe and make Washington, DC 20555–0001. The PDR This regulatory guide endorses the available to the public information such can also be reached by telephone at methods and procedures contained in as methods that are acceptable to the (301) 415–4737 or (800) 397–4209, by the current revision of NUREG–1556, NRC staff for implementing specific fax at (301) 415–3548, and by e-mail to Volume 11, ‘‘Consolidated Guidance parts of the agency’s regulations, [email protected]. about Materials Licenses: Program- techniques that the staff uses in Regulatory guides are not Specific Guidance about Licenses of evaluating specific problems or copyrighted, and NRC approval is not Broad Scope,’’ as a process that the NRC postulated accidents, and data that the required to reproduce them. staff finds acceptable for meeting the

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regulatory requirements of 10 CFR Part NUCLEAR REGULATORY Applications for Sealed Source and 33. COMMISSION Device Evaluation and Registration’’ and Volume 11 of NUREG–1556 is not NUREG–1556, Volume 9, ‘‘Consolidated Notice of Issuance of Regulatory Guide intended to be used alone. Because Guidance about Materials Licenses: Program-Specific Guidance about broad-scope licensees may be involved AGENCY: Nuclear Regulatory in many different program areas (e.g., Commission. Medical Use Licenses’’ as a process that the NRC staff has found to be acceptable medicine, research and development, ACTION: Notice of Issuance and for meeting the regulatory requirements. manufacturing and distribution), Availability of Regulatory Guide 6.1, Volume 11 frequently refers the user to Revision 2. II. Further Information other more program-specific guidance documents in the NUREG–1556 series. FOR FURTHER INFORMATION CONTACT: In January 2008, DG–6003 was A single document containing all of the Mark Orr, Regulatory Guide published with a public comment guidance that might be required by a Development Branch, Division of period of 60 days from the issuance of broad-scope licensee or an applicant for Engineering, Office of Nuclear the guide. No comments were received a broad-scope license would be Regulatory Research, U.S. Nuclear and the public comment period closed unwieldy and may become obsolete as Regulatory Commission, Washington, April 18, 2008. Electronic copies of guidance in the individual program DC 20555–0001, telephone (301) 415– Regulatory Guide 6.1, Revision 2 are areas is revised. Volume 11 of NUREG– 6373 or e-mail to [email protected]. available through the NRC’s public Web site under ‘‘Regulatory Guides’’ at 1556 takes a more risk-informed, SUPPLEMENTARY INFORMATION: performance-based approach to the http://www.nrc.gov/reading-rm/doc- information needed to support an I. Introduction collections/. application for a specific license of The U.S. Nuclear Regulatory In addition, regulatory guides are broad scope. Applicants should Commission (NRC) has issued revisions available for inspection at the NRC’s consider the entire NUREG–1556 series to existing guides in the agency’s Public Document Room (PDR), which is when preparing broad-scope license ‘‘Regulatory Guide’’ series. This series located at Room O–1F21, One White applications. NRC staff will use was developed to describe and make Flint North, 11555 Rockville Pike, applicable portions of the complete available to the public information such Rockville, Maryland 20852–2738. The NUREG–1556 series when reviewing as methods that are acceptable to the PDR’s mailing address is USNRC PDR, applications. NRC staff for implementing specific Washington, DC 20555–0001. The PDR parts of the agency’s regulations, can also be reached by telephone at II. Further Information techniques that the staff uses in (301) 415–4737 or (800) 397–4209, by In January 2008, DG–0015 was evaluating specific problems or fax at (301) 415–3548, and by e-mail to published with a public comment postulated accidents, and data that the [email protected]. period of 60 days from the issuance of staff needs in its review of applications Regulatory guides are not the guide. No comments were received for permits and licenses. copyrighted, and NRC approval is not and the public comment period closed Revision 2 of Regulatory Guide 6.1, required to reproduce them. ‘‘Leak Testing Radioactive on April 18, 2008. Electronic copies of Dated at Rockville, Maryland, this 3rd day Regulatory Guide 10.5, Revision 2 are Brachytherapy Sources,’’ was issued of July, 2008. with a temporary identification as Draft available through the NRC’s public Web For the Nuclear Regulatory Commission. site under ‘‘Regulatory Guides’’ at Regulatory Guide DG–6003. This guide directs the reader to methods and Stephen C. O’Connor, http://www.nrc.gov/reading-rm/doc- Acting Chief, Regulatory Guide Development collections/. procedures acceptable to the staff of the NRC for leak testing radioactive Branch, Division of Engineering, Office of Nuclear Regulatory Research. In addition, regulatory guides are brachytherapy sources. Possession and available for inspection at the NRC’s use of brachytherapy sources is an [FR Doc. E8–15794 Filed 7–10–08; 8:45 am] Public Document Room (PDR), which is activity requiring a license pursuant to BILLING CODE 7590–01–P located at Room O–1F21, One White Title 10, section 30.3, ‘‘Activities Flint North, 11555 Rockville Pike, Requiring License,’’ of the Code of NUCLEAR REGULATORY Rockville, Maryland 20852–2738. The Federal Regulations (10 CFR 30.3). The COMMISSION PDR’s mailing address is USNRC PDR, requirements in 10 CFR 35.67, Washington, DC 20555–0001. The PDR ‘‘Requirements for Possession of Sealed Notice of Issuance of Regulatory Guide can also be reached by telephone at Sources and Brachytherapy Sources,’’ (301) 415–4737 or (800) 397–4209, by state in part, that the sources are to be AGENCY: Nuclear Regulatory fax at (301) 415–3548, and by e-mail to periodically leak tested and that the test Commission. [email protected]. be capable of detecting the presence of ACTION: Notice of Issuance and Regulatory guides are not 185 becquerel (Bq) (0.005 microcurie Availability of Regulatory Guide 10.2, copyrighted, and NRC approval is not (µCi)) of radioactive material in the Revision 2. required to reproduce them. sample. The regulations also require that the source be immediately Dated at Rockville, Maryland, this 3rd day FOR FURTHER INFORMATION CONTACT: of July, 2008. withdrawn from use if the test reveals the presence of 185 Bq (0.005 µCi) or Mark Orr, Regulatory Guide For the Nuclear Regulatory Commission. more of removable contamination. Development Branch, Division of Stephen C. O’Connor, This regulatory guide endorses the Engineering, Office of Nuclear Acting Chief, Regulatory Guide Development methods and procedures for leak testing Regulatory Research, U.S. Nuclear Branch, Division of Engineering, Office of radioactive brachytherapy sources Regulatory Commission, Washington, Nuclear Regulatory Research. contained in the current revisions of DC 20555–0001, telephone (301) 415– [FR Doc. E8–15788 Filed 7–10–08; 8:45 am] NUREG–1556, Volume 3, ‘‘Consolidated 6373 or e-mail to [email protected]. BILLING CODE 7590–01–P Guidance about Materials Licenses: SUPPLEMENTARY INFORMATION:

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I. Introduction performance-based approach to of the Code of Federal Regulations (10 The U.S. Nuclear Regulatory regulation. Volume 7 of NUREG–1556 CFR 50.55(b)) for an extension of the Commission (NRC) is issuing a revision incorporates this revised approach. construction permit completion date for WBN Unit 2 to March 31, 2013. This to an existing guide in the agency’s II. Further Information request superseded an earlier letter ‘‘Regulatory Guide’’ series. This series In January 2008, DG–0013 was was developed to describe and make dated March 6, 2008. TVA requested published with a public comment this extension to the WBN Unit 2 available to the public information such period of 60 days from the issuance of as methods that are acceptable to the construction permit for the following the guide. No comments were received reasons, as stated in its application: NRC staff for implementing specific and the public comment period closed parts of the agency’s regulations, on April 18, 2008. Electronic copies of In a Record of Decision published in the techniques that the staff uses in Federal Register on August 15, 2007 (72 Fed. Regulatory Guide 10.2, Revision 2 are Reg. 45859), TVA stated that proceeding with evaluating specific problems or available through the NRC’s public Web postulated accidents, and data that the the completion and operation of WBN Unit site under ‘‘Regulatory Guides’’ at 2 is the best decision for TVA and the staff needs in its review of applications http://www.nrc.gov/reading-rm/doc- Tennessee Valley in terms of power supply, for permits and licenses. collections/. power price, generation mix, return on Revision 2 of Regulatory Guide 10.2, In addition, regulatory guides are investment, use of existing assets, and ‘‘Guidance to Academic Institutions available for inspection at the NRC’s avoidance of environmental impacts. TVA’s Applying for Specific Byproduct Public Document Room (PDR), which is Record of Decision explained, as mentioned Material Licenses of Limited Scope,’’ located at Room O–1F21, One White above, the three-fold benefits of assuring future power supplies without environmental was issued with a temporary Flint North, 11555 Rockville Pike, identification as Draft Regulatory Guide effects resulting from operation of fossil fuel Rockville, Maryland 20852–2738. The generating plants (including increased DG–0013. This guide directs the reader PDR’s mailing address is USNRC PDR, emissions) avoiding even larger capital to the type of information sought by the Washington, DC 20555–0001. The PDR outlays associated with totally new NRC staff to evaluate an application can also be reached by telephone at construction, and avoiding the from an academic institution for specific (301) 415–4737 or (800) 397–4209, by environmental impacts resulting from siting licenses of limited scope for the fax at (301) 415–3548, and by e-mail to and constructing new power generating possession and use of byproduct [email protected]. facilities elsewhere. material. It does not apply to Regulatory guides are not The NRC staff has prepared an applications for specific licenses of copyrighted, and NRC approval is not Environmental Assessment and Finding broad scope, licenses for source or required to reproduce them. of No Significant Impact, which was special nuclear materials, or licenses for Dated at Rockville, Maryland, this 3rd day published in the Federal Register on kilocurie irradiation sources. This guide of July, 2008. June 27, 2008 (73 FR 36577). Pursuant identifies the general principles that the For the Nuclear Regulatory Commission. to 10 CFR 51.32, the Commission has NRC staff will consider in evaluating an Stephen C. O’Connor, determined that extending the applicant’s proposed radiation safety Acting Chief, Regulatory Guide Development construction completion date will have measures. Branch, Division of Engineering, Office of no significant impact on the Title 10, Part 30, ‘‘Rules of General Nuclear Regulatory Research. environment. Applicability to Domestic Licensing of [FR Doc. E8–15786 Filed 7–10–08; 8:45 am] For further details regarding this Byproduct Material,’’ of the Code of BILLING CODE 7590–01–P action, see TVA’s May 8, 2008, Federal Regulations (10 CFR Part 30) application, and the NRC staff’s letter provides the regulatory framework for a and safety evaluation of the requested limited-scope byproduct material NUCLEAR REGULATORY extension dated July 7, 2008. license. Other regulations pertaining to COMMISSION Documents may be examined and/or this type of license appear in 10 CFR copied for a fee at the NRC’s Public Part 19, ‘‘Notices, Instructions and [Docket No. 50–391] Document Room, located at One White Reports to Workers: Inspection and In the Matter of Tennessee Valley Flint North, 11555 Rockville Pike (first Investigations’’ and 10 CFR Part 20, Authority (Watts Bar Nuclear Plant, floor), and are accessible through the ‘‘Standards for Protection Against Unit 2); Order ADAMS Electronic Reading Room link Radiation.’’ The applicant should at the NRC Web site, http:// carefully study the regulations and Tennessee Valley Authority (TVA, the www.nrc.gov. submit all information requested. permittee) is the current holder of Any person adversely affected by this This regulatory guide endorses the Construction Permit No. CPPR–92, Order may request a hearing on this methods and procedures for limited issued by the Atomic Energy Order within 60 days of its issuance. scope byproduct material licensing Commission on January 23, 1973, for Where good cause is shown, contained in the current revision of construction of the Watts Bar Nuclear consideration will be given to extending NUREG–1556, Volume 7, ‘‘Consolidated Plant (WBN), Unit 2. Construction the time to answer or request a hearing. Guidance about Materials Licenses: Permit CPPR–91 for construction of A request for an extension of time must Program-Specific Guidance about WBN Unit 1 was also issued on January be directed to the Director, Office of Academic, Research, and Development, 23, 1973, and Facility Operating License Nuclear Reactor Regulation, U.S. and Other Licenses of Limited Scope,’’ NPF–90 was issued for operation of Unit Nuclear Regulatory Commission, and as a process that the NRC staff has found 1 on February 7, 1996. WBN Unit 2 is must include a statement of good cause acceptable for meeting the regulatory currently partially completed. These for the extension. Requirements for requirements. facilities are at the permittee’s site on hearing requests are found in 10 CFR Since the publication of Revision 1 of the west branch of the Tennessee River, 2.309. Regulatory Guide 10.2 in December approximately 50 miles northeast of All documents filed in NRC 1976, the NRC has revised the Chattanooga, Tennessee. adjudicatory proceedings, including a requirements for byproduct material On May 8, 2008, TVA filed a request request for hearing, any motion or other licenses to implement a risk-informed, pursuant to Section 50.55(b) of Title 10 document filed in the proceeding prior

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to the submission of a request for have advised the Office of the Secretary not to include copyrighted materials in hearing, and documents filed by that they wish to participate in the their submission. interested governmental entities proceeding, so that the filer need not If a person requests a hearing, that participating under 10 CFR 2.315(c), serve the document on those person shall set forth with particularity must be filed in accordance with the participants separately. Therefore, any the manner in which his interest is NRC E-Filing rule, which the NRC others who wish to participate in the adversely affected by this Order and promulgated in August 2007, 72 FR proceeding (or their counsel or shall address the criteria set forth in 10 49139 (Aug. 28, 2007). The E-Filing representative) must apply for and CFR 2.309(d). process requires participants to submit receive a digital ID certificate before a The scope of this order extending the and serve all adjudicatory documents hearing request is filed so that they may construction completion date and any over the Internet, or in some cases to obtain access to the document via the E- proceeding hereunder is limited to mail copies on electronic storage media. Filing system. direct challenges to the permit holder’s Participants may not submit paper A person filing electronically may asserted reasons that show good cause copies of their filings unless they seek seek assistance through the ‘‘Contact justification for the extension. a waiver in accordance with the Us’’ link located on the NRC Web site Attorney for the permit holder: procedures described below. at http://www.nrc.gov/site-help/e- Maureen H. Dunn, Executive Vice To comply with the procedural submittals.html or by calling the NRC President and General Counsel, requirements associated with E-Filing, technical help line, which is available Tennessee Valley Authority, 400 West at least ten (10) days prior to the filing between 8:30 a.m. and 4:15 p.m., Summit Hill Drive, Knoxville, TN deadline the requestor should contact Eastern Time, Monday through Friday. 37902. the Office of the Secretary by e-mail at The help line number is (800) 397–4209 It is hereby ordered that the latest [email protected], or by or locally, (301) 415–4737. completion date for Construction Permit calling (301) 415–1677, to request (1) a Participants who believe that they No. CPPR–92 is extended from digital ID certificate, which allows the have good cause for not submitting December 31, 2010, to March 31, 2013. participant (or its counsel or documents electronically must file an representative) to digitally sign Dated at Rockville, Maryland, this 7th day exemption request, in accordance with of July 2008. documents and access the E-Submittal 10 CFR 2.302(g), with their initial paper server for any NRC proceeding in which For the Nuclear Regulatory Commission. filing requesting authorization to it is participating; and/or (2) creation of Eric J. Leeds, an electronic docket for the proceeding continue to submit documents in paper Director, Office of Nuclear Reactor (even in instances when the requestor format. Such filings must be submitted Regulation. (or its counsel or representative) already by (1) first-class mail addressed to the [FR Doc. E8–15796 Filed 7–10–08; 8:45 am] Office of the Secretary of the holds an NRC-issued digital ID BILLING CODE 7590–01–P certificate). Each requestor will need to Commission, U.S. Nuclear Regulatory download the Workplace Forms Commission, Washington, DC 20555– TM 0001, Attention: Rulemaking and Viewer to access the Electronic POSTAL REGULATORY COMMISSION Information Exchange (EIE), a Adjudications Staff; or (2) courier, express mail, or expedited delivery component of the E-Filing system. The [Docket No. PI2008–1; Order No. 83] Workplace Forms ViewerTM is free and service to the Office of the Secretary, is available at http://www.nrc.gov/site- Sixteenth Floor, One White Flint North, Administrative Practice and Procedure, help/e-submittals/install-viewer.html. 11555 Rockville Pike, Rockville, Postal Service; Correction Information about applying for a digital Maryland 20852, Attention: Rulemaking ID certificate also is available on NRC’s and Adjudications Staff. Participants AGENCY: Postal Regulatory Commission. public Web site at http://www.nrc.gov/ filing a document in this manner are ACTION: Notice; correction. site-help/e-submittals/apply- responsible for serving the document on certificates.html. all other participants. Filing is SUMMARY: The Postal Regulatory Once a requestor has obtained a considered complete by first-class mail Commission published a document in digital ID certificate, has a docket as of the time of deposit in the mail, or the Federal Register on June 25, 2008 created, and downloaded the EIE by courier, express mail, or expedited seeking comments on a plan for service viewer, it can then submit a request for delivery service upon depositing the performance measurement and a hearing through EIE. Submissions document with the provider of the reporting systems for market dominant should be in Portable Document Format service. products. The document contained (PDF) in accordance with NRC guidance Documents submitted in adjudicatory several errors the Commission wishes to available on the NRC public Web site at proceedings will appear in NRC’s correct. http://www.nrc.gov/site-help/e- electronic hearing docket which is FOR FURTHER INFORMATION CONTACT: submittals.html. A filing is considered available to the public at http:// Stephen L. Sharfman, General Counsel, complete at the time the filer submits its ehd.nrc.gov/EHD_Proceeding/home.asp, 202–789–6820 and document through EIE. To be timely, unless excluded pursuant to an order of [email protected]. electronic filings must be submitted to the Commission, the Atomic Safety and the EIE system no later than 11:59 p.m. Licensing Board, or a Presiding Officer. Correction Eastern Time on the due date. Upon Participants are requested not to include In SUPPLEMENTARY INFORMATION, page receipt of a transmission, the E-Filing personal privacy information, such as 36138, Table 2, correct the row system time-stamps the document and social security numbers, home beginning with ‘‘Standard Mail’’ to sends the submitter an e-mail notice addresses, or home phone numbers in delete subscript 7 in column 6, and the confirming receipt of the document. The their filings. With respect to copyrighted row beginning with ‘‘Package Services’’ EIE system also distributes an e-mail works, except for limited excerpts that to delete subscript 8 in column 3, and notice that provides access to the serve the purpose of the adjudicatory in footnote 1, change ‘‘Table 1’’ to document to the NRC Office of the filings and would constitute a Fair Use ‘‘Table 2’’ and delete the word ‘‘mail’’ General Counsel and any others who application, Participants are requested to read:

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TABLE 2.—POSTAL SERVICE MEASUREMENT APPROACH AT FULL ROLLOUT 1 MEASUREMENT APPROACH BY MAIL SEGMENT

Single-piece Presort Letters Flats Parcels Letters Flats Parcels

First-Class Mail ...... EXFC ...... EXFC ...... Start: Acceptance Start: Docu- EXFC as Proxy 2 Start: Docu- scan. mented Arrival mented Arrival Time at Postal Time at Postal facility. facility. Stop: Delivery Stop: External re- ...... Stop: Delivery Confirmation porting. Confirmation delivery scan. delivery scan. Single-Piece First- IMMS 3 ...... EXFC as proxy 4 Single-Piece First- N/A ...... N/A ...... N/A. Class Mail Inter- Class Mail par- national. cels as proxy 5. Periodicals 6 ...... N/A ...... N/A ...... N/A ...... Start: Docu- Start: Docu- N/A. mented Arrival mented Arrival Time at Postal Time at Postal facility. facility. Stop: External re- Stop: External re- N/A. porting. porting. Standard Mail ...... N/A ...... N/A ...... N/A ...... Start: Docu- Start: Docu- Start: Docu- mented Arrival mented Arrival mented Arrival Time at Postal Time at Postal Time at Postal facility. facility. facility. Stop: External re- Stop: External re- Stop: Delivery porting. porting. Confirmation delivery scan. Package Services .. N/A ...... N/A ...... Start: Acceptance N/A ...... Start: Docu- Start: Docu- scan. mented Arrival mented Arrival Time at Postal Time at Postal facility. facility. Stop: Delivery ...... Stop: External re- Stop: Delivery Confirmation porting. Confirmation delivery scan. delivery scan. 1 Special Services are not included in Table 2 as they have different methods to ‘‘start-the-clock’’ and ‘‘stop-the-clock’’ from the market-domi- nant products. 2 The Postal Service will use the External First-Class Mail Measurement System (EXFC) measurement for single-piece flats as a proxy for Presort First-Class Mail flats due to the very small volume of Presort flats. 3 The International Mail Measurement System (IMMS) is an external measurement system for which an independent measurement contractor seeds mail into the mailstream. 4 The EXFC measurement for domestic single-piece First-Class Mail flats will serve as a proxy for single-piece First-Class Mail International flats due to the small volume in the latter category. After clearing customs, single-piece First-Class Mail International flats enter the domestic mailstream and are handled with domestic single-piece First-Class Mail flats. 5 The Postal Service will use the measurement for domestic single-piece First-Class Mail parcels as a proxy for single-piece First-Class Mail International parcels. 6 Two mailer-operated external systems, Red Tag and Time Inc.’s DelTrak, will be used for Periodicals measurement during FY 2009, as the Postal Service transitions to a long-term internal solution.

In SUPPLEMENTARY INFORMATION, on captioned ‘‘Overall Mailstream’’ under (percent)’’, change the number ‘‘17’’ to page 36140, Table 3, in the row the column captioned ‘‘Letters read ‘‘17.2’’.

TABLE 3.—FIRST-CLASS MAIL VOLUME

Single-piece Presort Letters Flats Parcels Letters Flats Parcels Total (percent) (percent) (percent) (percent) (percent) (percent) (percent)

First-Class Mail...... 38.0 3.3 0.4 57.1 1.0 0.2 100 Overall Mailstream..... 17.2 1.5 0.2 25.8 0.4 0.1 45 .2

In SUPPLEMENTARY INFORMATION, on South Carolina District’’ and change all page 36142, Table 4, change ‘‘South instances of ‘‘xx’’ to read ‘‘xx.x’’. Carolina District’’ to read ‘‘Greater

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TABLE 4.—QUARTERLY PERFORMANCE FOR SINGLE-PIECE FIRST-CLASS MAIL; SAMPLE QUARTERLY REPORT FORMAT FOR SINGLE-PIECE FIRST-CLASS MAIL

Three-day/ Overnight Two-day four-day/ District (% On-time) (% On-time) five-day (% On-time)

Capital Metro Area ...... xx.x xx.x xx.x Baltimore District ...... xx.x xx.x xx.x Capital District ...... xx.x xx.x xx.x Greater South Carolina District ...... xx.x xx.x xx.x Greensboro District ...... xx.x xx.x xx.x Mid-Carolinas District ...... xx.x xx.x xx.x No. Virginia District ...... xx.x xx.x xx.x Richmond District ...... xx.x xx.x xx.x

In SUPPLEMENTARY INFORMATION, on South Carolina District’’ and change all page 36142, Table 5, change ‘‘South instances of ‘‘xx’’ to read ‘‘xx.x’’. Carolina District’’ to read ‘‘Greater

TABLE 5.—QUARTERLY PERFORMANCE FOR SINGLE-PIECE FIRST-CLASS MAIL SERVICE VARIANCE; SAMPLE QUARTERLY REPORT FORMAT WITH SERVICE VARIANCE FOR SINGLE-PIECE FIRST-CLASS MAIL

Overnight Two-day Three-day/four-day/five-day District Within + Within + Within + Within + Within + Within + Within + Within + Within + 1-day 2-days 3-days 1-day 2-days 3-days 1-day 2-days 3-days (percent) (percent) (percent) (percent) (percent) (percent) (percent) (percent) (percent)

Capital Metro Area..... xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x Baltimore District...... xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x Capital District...... xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x Greater South Caro- lina District...... xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x Greensboro District.... xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x Mid-Carolinas District xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x No. Virginia District.... xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x Richmond District...... xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x xx.x

In SUPPLEMENTARY INFORMATION, on Compliance Report format for First- In SUPPLEMENTARY INFORMATION, on page 36142 in the third column, add a Class Mail is as follows:’’. page 36142, Table 6, change all paragraph to read, ‘‘The Annual instances of ‘‘xx’’ to read ‘‘xx.x’’.

TABLE 6.—ANNUAL COMPLIANCE REPORT; SAMPLE ANNUAL REPORT FORMAT FOR FIRST-CLASS MAIL

Target Percent Mail Class (percent) on-time

First-Class Mail: Single-Piece Overnight ...... xx.x xx.x Single-Piece Two-Day ...... xx.x xx.x Single-Piece Three-Day/Four-Day ...... xx.x xx.x Presort Overnight ...... xx.x xx.x Presort Two-Day ...... xx.x xx.x Presort Three-Day/Four-Day ...... xx.x xx.x

In SUPPLEMENTARY INFORMATION, on ‘‘Southwest Area’’ following the row page 36144, Table 8, in the column ‘‘Western Area’’. captioned ‘‘Area’’ add a row for

TABLE 8.—QUARTERLY PERFORMANCE FOR SINGLE-PIECE INTERNATIONAL MAIL SERVICE VARIANCE; SAMPLE QUARTERLY REPORT FORMAT WITH THE SERVICE VARIANCE FOR SINGLE-PIECE FIRST-CLASS MAIL INTERNATIONAL

Inbound Outbound Area Within + 1-day Within + 2-day Within + 3-day Within + 1-day Within + 2-day Within + 3-day (percent) (percent) (percent) (percent) (percent) (percent)

Northeast Area...... xx.x xx.x xx.x xx.x xx.x xx.x

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TABLE 8.—QUARTERLY PERFORMANCE FOR SINGLE-PIECE INTERNATIONAL MAIL SERVICE VARIANCE; SAMPLE QUARTERLY REPORT FORMAT WITH THE SERVICE VARIANCE FOR SINGLE-PIECE FIRST-CLASS MAIL INTERNATIONAL—Continued

Inbound Outbound Area Within + 1-day Within + 2-day Within + 3-day Within + 1-day Within + 2-day Within + 3-day (percent) (percent) (percent) (percent) (percent) (percent)

New York Metro Area ...... xx.x xx.x xx.x xx.x xx.x xx.x Eastern Area...... xx.x xx.x xx.x xx.x xx.x xx.x Capital Metro Area...... xx.x xx.x xx.x xx.x xx.x xx.x Southeast Area...... xx.x xx.x xx.x xx.x xx.x xx.x Great Lakes Area...... xx.x xx.x xx.x xx.x xx.x xx.x Western Area...... xx.x xx.x xx.x xx.x xx.x xx.x Southwest Area...... xx.x xx.x xx.x xx.x xx.x xx.x Pacific Area...... xx.x xx.x xx.x xx.x xx.x xx.x National ...... xx.x xx.x xx.x xx.x xx.x xx.x

In SUPPLEMENTARY INFORMATION, on ‘‘Destination Entry includes Destination Sectional Center Facility, and page 36146, Table 12, add a table Bulk Mail Center, Destination Area Destination Delivery Unit.’’ footnote following the table title to read, Distribution Center, Destination

TABLE 12.—QUARTERLY PERFORMANCE FOR STANDARD MAIL SERVICE VARIANCE; SAMPLE QUARTERLY REPORT FORMAT FOR STANDARD MAIL SERVICE VARIANCE 1

Destination entry End-to-end District Within + Within + Within + Within + Within + 1-day 2-days 3-days Within + 1-day 2-days 3-days (percent) (percent) (percent) (percent) (percent) (percent)

Capital Metro Area...... xx.x xx.x xx.x xx.x xx.x xx.x Baltimore District...... xx.x xx.x xx.x xx.x xx.x xx.x Capital District...... xx.x xx.x xx.x xx.x xx.x xx.x Greater South Carolina District ...... xx.x xx.x xx.x xx.x xx.x xx.x Greensboro District...... xx.x xx.x xx.x xx.x xx.x xx.x Mid-Carolinas District...... xx.x xx.x xx.x xx.x xx.x xx.x No. Virginia District...... xx.x xx.x xx.x xx.x xx.x xx.x Richmond District...... xx.x xx.x xx.x xx.x xx.x xx.x 1 Destination Entry includes Destination Bulk Mail Center, Destination Area Distribution Center, Destination Sectional Center Facility, and Des- tination Delivery Unit.

In SUPPLEMENTARY INFORMATION, on Flats, and Parcels’’ to read ‘‘Letters and page 36148, Table 16, change ‘‘Letters, Flats’’.

TABLE 16.—ANNUAL COMPLIANCE REPORT; SAMPLE ANNUAL REPORT FORMAT FOR PERIODICALS

Target Percent Mail Class (percent) on-time

Periodicals ...... Letters and Flats ...... xx.x xx.x

In SUPPLEMENTARY INFORMATION, on page 36149, Table 19, add the heading ‘‘District’’ to the first column to read:

TABLE 19.—QUARTERLY PERFORMANCE FOR PACKAGE SERVICES SERVICE VARIANCE; SAMPLE QUARTERLY REPORT FORMAT WITH SERVICE VARIANCE FOR PACKAGE SERVICES PARCELS

Within + Within + District Within + 1-day 2-days 3-days (percent) (percent) (percent)

Capital Metro Area ...... xx.x xx.x xx.x Baltimore District ...... xx.x xx.x xx.x Capital District ...... xx.x xx.x xx.x Greater South Carolina District ...... xx.x xx.x xx.x Greensboro District ...... xx.x xx.x xx.x Mid-Carolinas District ...... xx.x xx.x xx.x

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TABLE 19.—QUARTERLY PERFORMANCE FOR PACKAGE SERVICES SERVICE VARIANCE; SAMPLE QUARTERLY REPORT FORMAT WITH SERVICE VARIANCE FOR PACKAGE SERVICES PARCELS—Continued

Within + Within + District Within + 1-day 2-days 3-days (percent) (percent) (percent)

No. Virginia District ...... xx.x xx.x xx.x Richmond District ...... xx.x xx.x xx.x

In SUPPLEMENTARY INFORMATION, on page 36156, Table 25, delete superscript 1 from the table title.

TABLE 25.—DOMESTIC DESTINATION ENTRY MAIL

End-to-end flow range (days) 1 Mail class DDU SCF ADC BMC (days) (days) (days) (days)

Periodicals ...... 1 1 1–2 21–2 Standard Mail ...... 2 3 ...... 5 Package Services ...... 1 2 ...... 3 1 See 72 FR 72216 (December 19, 2007) for Alaska, Hawaii, Puerto Rico, Guam, and U.S. Virgin Islands. 2 Only applies to Periodicals receiving the DBMC Container rate.

By the Commission. effective upon filing with the A. Self-Regulatory Organization’s Steven W. Williams, Commission. The Commission is Statement of the Purpose of, and Secretary. publishing this notice to solicit Statutory Basis for, the Proposed Rule [FR Doc. E8–15785 Filed 7–10–08; 8:45 am] comments on the proposed rule change Change BILLING CODE 7710–FW–P from interested persons. 1. Purpose I. Self-Regulatory Organization’s On July 12, 2005, the Commission Statement of the Terms of Substance of approved the Pilot Program.5 The Pilot SECURITIES AND EXCHANGE the Proposed Rule Change Program allows CBOE to list and trade COMMISSION Short Term Option Series, which would [Release No. 34–58094; File No. SR–CBOE– The Exchange proposes to extend the expire one week after the date on which 2008–70] period for its Short Term Option Series a series is opened. pilot program (‘‘Pilot Program’’) through The Exchange has selected the Self-Regulatory Organizations; July 12, 2009. The text of the proposed following four options classes to Chicago Board Options Exchange, rule change is available on the participant in the Pilot Program: S&P Incorporated, LLC; Notice of Filing and Exchange’s Web site (http:// 500 Index options (SPX), S&P 100 Index Immediate Effectiveness of Proposed www.cboe.org/Legal), at the Exchange’s American-style options (OEX), Mini- Rule Change To Extend the Short Term Office of the Secretary and at the S&P 500 Index options (XSP), and S&P Option Series Pilot Program Commission. 100 Index European-style options (XEO). CBOE believes the Pilot Program July 3, 2008. II. Self-Regulatory Organization’s has been successful and well received Pursuant to Section 19(b)(1) of the Statement of the Purpose of, and by its members and the investing public. Securities Exchange Act of 1934 Statutory Basis for, the Proposed Rule Thus, CBOE proposes to extend the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Change Pilot Program through July 12, 2009. notice is hereby given that on July 2, In support of the proposed rule 2008, the Chicago Board Options In its filing with the Commission, the change, and as required by the Pilot Exchange, Incorporated (‘‘Exchange’’ or Exchange included statements ‘‘CBOE’’) filed with the Securities and concerning the purpose of, and basis for, 5 See Securities Exchange Act Release No. 52011 Exchange Commission (‘‘Commission’’) the proposed rule change and discussed (July 12, 2005), 70 FR 41451 (July 19, 2005) (SR– the proposed rule change as described CBOE–2004–63) (‘‘Pilot Program Approval Order’’). any comments it received on the The Pilot Program has since been extended and is in Items I and II below, which Items proposed rule change. The text of these currently scheduled to expire on July 12, 2008. See have been substantially prepared by the statements may be examined at the Securities Exchange Act Release Nos. 53984 (June Exchange. The Exchange has designated places specified in Item IV below. The 14, 2006), 71 FR 35718 (June 21, 2006) (SR–CBOE– this proposal as non-controversial under 2006–48) (extending the Pilot Program through July Exchange has prepared summaries, set 12, 2007) and 56050 (July 11, 2007), 72 FR 39472 3 Section 19(b)(3)(A)(iii) of the Act and forth in sections A, B, and C below, of (July 18, 2007) (SR–CBOE–2007–76) (extending the 4 Rule 19b–4(f)(6) thereunder, which the most significant aspects of such Pilot Program through July 12, 2008); see also renders the proposed rule change Securities Exchange Act Release No. 54338 (August statements. 21, 2006), 71 FR 50952 (August 28, 2006) (SR– CBOE–2006–49) (order approving an amendment to 1 15 U.S.C. 78s(b)(1). the Pilot Program that increased the number of 2 17 CFR 240.19b–4. series that may be listed for a class selected to 3 15 U.S.C. 78s(b)(3)(A)(iii). participant in the Pilot Program from five series to 4 17 CFR 240.19b–4(f)(6). seven series).

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Program Approval Order, the Exchange C. Self-Regulatory Organization’s including whether the proposed rule is submitting to the Commission a Pilot Statement on Comments on the change is consistent with the Act. Program report (the ‘‘Report’’) detailing Proposed Rule Change Received From Comments may be submitted by any of the Exchange’s experience with the Pilot Members, Participants or Others the following methods: Program. Specifically, the Report The Exchange neither solicited nor Electronic Comments contains data and written analysis received comments on the proposed regarding the four options classes rule change. • Use the Commission’s Internet included in the Pilot Program. The comment form (http://www.sec.gov/ III. Date of Effectiveness of the Report is being submitted under rules/sro.shtml); or separate cover and seeks confidential Proposed Rule Change and Timing for • Send an e-mail to rule- treatment under the Freedom of Commission Action [email protected]. Please include File Information Act. The Exchange has designated the No. SR–CBOE–2008–70 on the subject proposed rule change as one that: (1) The Exchange believes there is line. sufficient investor interest and demand Does not significantly affect the to extend the Pilot Program another year protection of investors or the public Paper Comments based on the information provided in interest; (2) does not impose any significant burden on competition; and • Send paper comments in triplicate the Report. The Exchange believes that (3) does not become operative for 30 to Secretary, Securities and Exchange the Pilot Program has provided days from the date of filing, or such Commission, 100 F Street, NE., investors with additional means of shorter time as the Commission may Washington, DC 20549–1090. managing their risk exposures and designate if consistent with the carrying out their investment objectives. All submissions should refer to File protection of investors and the public Furthermore, the Exchange has not Number SR–CBOE–2008–70. This file interest. Therefore, the foregoing rule experienced any capacity-related number should be included on the change has become effective pursuant to problems with respect to Short Term subject line if e-mail is used. To help the Section 19(b)(3)(A) of the Act 9 and Option Series. The Exchange also Commission process and review your subparagraph (f)(6) of Rule 19b–4 comments more efficiently, please use represents that it has the necessary 10 thereunder. only one method. The Commission will system capacity to support the option The Exchange has asked the series listed under the Pilot Program. post all comments on the Commission’s Commission to waive the operative Internet Web site (http://www.sec.gov/ 2. Statutory Basis delay to permit the proposed rule rules/sro.shtml). Copies of the change to become operative prior to the submission, all subsequent The Exchange believes the proposed 30th day after filing. The Commission amendments, all written statements rule change is consistent with the Act 6 has determined that waiving the 30-day with respect to the proposed rule and the rules and regulations operative delay of the Exchange’s change that are filed with the thereunder and, in particular, the proposal is consistent with the 7 Commission, and all written requirements of Section 6(b) of the Act. protection of investors and the public communications relating to the Specifically, the Exchange believes the interest and will promote competition proposed rule change between the proposed rule change is consistent with because such waiver will allow CBOE to Commission and any person, other than Section 6(b)(5) of the Act,8 which continue the existing Pilot Program 11 those that may be withheld from the requires that the rules of an exchange be without interruption. Therefore, the public in accordance with the designed to promote just and equitable Commission designates the proposal provisions of 5 U.S.C. 552, will be principles of trade, to prevent operative upon filing. available for inspection and copying in At any time within 60 days of the fraudulent and manipulative acts, to the Commission’s Public Reference filing of the proposed rule change, the remove impediments to and to perfect Room, 100 F Street, NE., Washington, Commission may summarily abrogate the mechanism for a free and open DC 20549, on official business days the rule change if it appears to the market and a national market system, between the hours of 10 a.m. and 3 p.m. Commission that such action is and, in general, to protect investors and Copies of such filing also will be necessary or appropriate in the public the public interest. The Exchange available for inspection and copying at interest, for the protection of investors, believes that extension of the Pilot the principal office of the Exchange. All or otherwise in furtherance of the Program will result in a continuing comments received will be posted purposes of the Act. benefit to investors, by allowing them without change; the Commission does additional means to manage their risk IV. Solicitation of Comments not edit personal identifying exposures and carry out their Interested persons are invited to information from submissions. You investment objectives, and will allow should submit only information that the Exchange to further study investor submit written data, views, and arguments concerning the foregoing, you wish to make available publicly. All interest in Short Term Option Series. submissions should refer to File No. B. Self-Regulatory Organization’s 9 15 U.S.C. 78s(b)(3)(A). SR–CBOE–2008–70 and should be Statement on Burden on Competition 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– submitted on or before August 1, 2008. 4(f)(6)(iii) requires a self-regulatory organization to For the Commission, by the Division of The Exchange believes that the provide the Commission with written notice of its intent to file the proposed rule change, along with Trading and Markets, pursuant to delegated proposed rule change does not impose a brief description and text of the proposed rule authority.12 any burden on competition that is not change, at least five business days prior to the date Florence E. Harmon, necessary or appropriate in furtherance of filing of the proposed rule change, or such of the purposes of the Act. shorter time as designated by the Commission. The Acting Secretary. Exchange has fulfilled this requirement. [FR Doc. E8–15758 Filed 7–10–08; 8:45 am] 11 For purposes only of waiving the 30-day BILLING CODE 8010–01–P 6 15 U.S.C. 78s(b)(1). operative delay, the Commission has considered the 7 15 U.S.C. 78f(b). proposed rule’s impact on efficiency, competition, 8 15 U.S.C. 78f(b)(5). and capital formation. See 15 U.S.C. 78c(f). 12 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE (b) A Nasdaq member may enter a (a) For riskless transactions in which COMMISSION non-tape, clearing-only submission into a member, after having received an ACT for the purpose of [: order to buy a security, purchases the [Release No. 34–58101; File No. SR– NASDAQ–2008–033] (i) Transferring all or a portion of the security at the same price to satisfy the member’s position in a previously order to buy or, after having received an Self-Regulatory Organizations; The executed trade to one or more other order to sell, sells the security at the NASDAQ Stock Market, LLC; Notice of Nasdaq members on whose behalf the same price to satisfy the order to sell, Filing of Proposed Rule Change as trade was executed; the member may submit, for the Modified by Amendment No. 1 Thereto (ii) Transferring all or a portion of the offsetting ‘‘riskless’’ portion of the Related to Submission of Non-Tape member’s position in an account of the transaction either: Reports member at one clearing broker to an i. A clearing-only report with a account of the member at another capacity indicator of ‘‘riskless July 3, 2008. clearing broker] transferring securities principal,’’ ‘‘agency,’’ or ‘‘intra-broker’’ Pursuant to Section 19(b)(1) of the from one member to another, provided if a clearing report is necessary to clear Securities Exchange Act of 1934 that the transfer does not constitute a the transaction; or 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, transaction in securities that is ii. A non-tape, non-clearing report notice is hereby given that on April 18, otherwise subject to reporting that has with a capacity indicator of ‘‘riskless 2008, The NASDAQ Stock Market, LLC not, in fact, been previously and principal,’’ ‘‘agency’’ or ‘‘intra-broker’’ if (‘‘Nasdaq’’ or the ‘‘Exchange’’) filed with separately reported as a transaction. a clearing report is not necessary to the Securities and Exchange When submitting a non-tape, clearing- clear the transaction. Commission (‘‘Commission’’) the only submission that is used to transfer (b) Nothing in this Rule shall relieve proposed rule change as described in a position from one member to another any member or other party from its Items I, II, and III below, which Items member, the submitting member may obligation to fully and properly report have been substantially prepared by the also indicate that the obligation to pay transactions as required by the Exchange. On July 3, 2008, Nasdaq filed a Sales Fee or similar fee associated applicable rules of other self-regulatory Amendment No. 1 to the proposed rule with the position should be transferred. organizations. change. The Commission is publishing (c) When ACT is used to transfer a * * * * * this notice to solicit comments on the position along with a Sales Fee or proposed rule change, as amended, from 7043. Inclusion of Transaction Fees in similar fee, all parties to the transfer interested persons. Clearing Reports Submitted to ACT must be Nasdaq members and [must] I. Self-Regulatory Organization’s may be party to an agreement (a) Nasdaq members may agree in Statement of the Terms of Substance of authorizing the transferring party to advance to transfer a transaction fee the Proposed Rule Change enter into locked-in trades on its behalf. charged by one member to another Nasdaq is proposing a rule change to: When ACT is used to transfer Sales Fees member on a transaction effected on an (1) Offer functionality allowing the or similar fees [without the transfer of exchange or otherwise through the submission of non-tape riskless the underlying shares] without an submission of a clearing report to the principal reports using Nasdaq’s accompanying transfer of a securities Automated Confirmation Transaction Automated Confirmation Transaction position, the clearing firms for the trades Service (‘‘ACT’’). Such report, inclusive Service (‘‘ACT’’); (2) allow the in question must be part[y]ies to an of the transaction fee, will be submitted collection and transfer of fees among agreement authorizing such transfers to the National Securities Clearing Nasdaq members using such between themselves and/or the firms on Corporation for processing. To facilitate submissions, as well as for step-outs; whose behalf they clear trades. the transfer of the transaction fee, the and (3) expand the use of step-outs to (d) A Nasdaq member is prohibited report submitted to ACT shall provide, include journal entry position from using a non-tape, clearing-only in addition to all other information movement. ACT submission [entered into ACT] for required to be submitted, a total per The text of the proposed rule change the purpose of [reporting a trade share or contract price amount, is below. Proposed new language is in execution] effecting a transaction inclusive of the transaction fee. Such italics; proposed deletions are in required to be trade reported or reports shall only submitted where there brackets.3 reporting a trade for regulatory exists a written agreement between the purposes. Submission of non-tape, members permitting the submission of 7038. Step-Outs and Sales Fee clearing, or non-tape, non-clearing fee-inclusive clearing reports between Transfers records into ACT by Nasdaq members them. Nothing in this paragraph shall (a) A Nasdaq member may enter a does not satisfy any obligation such relieve a member from its obligations non-tape, non-clearing submission into members may have to report under Nasdaq rules and the federal the Automated Confirmation transactions as required by the securities laws. The ability to transfer Transaction Service (‘‘ACT’’) for the applicable rules of other self-regulatory transaction fees as described above purpose of transferring all or a portion organizations. shall be limited to transactions and/or of the obligation to pay a Rule 7002 (e)–(f) No Change. submissions made pursuant to Rule Sales Fee or similar fee of another self- * * * * * 7038 or 7042. regulatory organization that is (b) The fee for submission of the associated with a previously executed 7042. Non-Tape Riskless Submissions above shall be $0.03 per side. trade to one or more other Nasdaq Nasdaq members may make non-tape * * * * * members. submissions into the Automated (b) Not applicable. Confirmation Transaction Service (c) Not applicable. 1 15 U.S.C. 78s(b)(1). (‘‘ACT’’) to facilitate riskless * * * * * 2 17 CFR 240.19b–4. 3 Changes are marked to the rule text that appears transactions taking place on national The text of the proposed rule change in the electronic manual of Nasdaq found at securities exchanges, or over-the- is also available on the Exchange’s Web http://nasdaq.complinet.com. counter, as follows: site (http://www.nasdaqtrader.com), at

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Nasdaq’s Office of the Secretary, and at transmission of the transfer records to systems to access liquidity in the the Commission’s Public Reference an appropriate clearing agency. marketplace. In the market, ABCQ is the Room. In defining what constitutes a riskless broker against which clearing of the transfer, Nasdaq has determined to public market trade is submitted. ABCD II. Self-Regulatory Organization’s follow the general standard for riskless and ABCQ clear separately. ABCQ Statement of the Purpose of, and principal transactions articulated in needs to get the shares to ABCD. It’s not Statutory Basis for, the Proposed Rule Financial Industry Regulatory Authority a trade, and because they’re the same Change (‘‘FINRA’’) Rule 4632(d)(3)(B) and broker from a member perspective, they require that the Nasdaq member have In its filing with the Commission, the can’t move the shares as a riskless had an order in hand, and have given Exchange included statements transfer under FINRA’s rules. In this the party providing the order the same concerning the purpose of, and basis for, situation, use of the ‘‘Intra-Broker’’ price as the Nasdaq member obtained in the proposed rule change and discussed capacity through Nasdaq’s ACT system the public marketplace, prior to the any comments it received on the would be available. submission of post-trade riskless proposed rule change. The text of these The riskless reports may be used for transfer entry, either as principal or statements may be examined at the clearing, non-clearing, QSR, and Give- agent, into ACT. These riskless places specified in Item IV below. The Ups. Nasdaq will continue to honor submissions into ACT are voluntary and Attachment 2’s and Uniform Trade Exchange has prepared summaries, set do not replace any separate reporting forth in Sections A, B, and C below, of Reporting Agreements on file with it or obligation that may also be applicable. the FINRA/Nasdaq TRF. When used the most significant aspects of such Under the proposal, Nasdaq members statements. with clearing, or otherwise specifically will be allowed to submit records for requested, the reports shall also be A. Self-Regulatory Organization’s riskless transfers using the following included in Nasdaq Risk Management Statement of the Purpose of, and capacities: ‘‘Riskless Principal’’ where calculations. Submission of non-tape, Statutory Basis for, the Proposed Rule the member acted as principal on the clearing, or non-tape, non-clearing Change open market trade or trades related to records into ACT by Nasdaq members the riskless submission; ‘‘Agent’’ where will not satisfy any obligation the 1. Purpose the member acted as agent on the open member may otherwise have to report or market trade or trades related to the Nasdaq is proposing a rule change to: represent the same transactions under riskless submission; and ‘‘Intra-Broker’’ (1) Allow Nasdaq members to submit the rules of any other self-regulatory where the transfer is occurring strictly organization. non-tape, riskless reports using within a member Firm. Nasdaq’s Automated Confirmation In FINRA Notice to Members 2007– Transaction Fees Transaction Service (‘‘ACT’’); (2) allow 38, that SRO allowed, among other Current trade-reporting rules of other Nasdaq members to use ACT to collect things, the submission of certain non- SROs allow transaction fees to be and transfer fees in connection with tape reports to represent the offsetting included in clearing reports. Nasdaq non-tape, riskless principal submissions riskless portion of a previously executed proposes to establish similar rules for and step-outs; and (3) broaden the scope public market trade while restricting its transaction fees to be included in of permitted step-outs. members’ ability to submit such non- clearing reports that are submitted in Non-Tape Riskless Submission tape reports to a FINRA facility if the connection with non-tape, riskless public trade report was not also principal submissions and step-outs. Nasdaq proposes to establish a reported to a FINRA facility. The only Under the proposal, Nasdaq members functionality that will allow Nasdaq exception to this prohibition was if the may also seek to impose or transfer to exchange member submission of non- non-tape report was submitted to reflect another Nasdaq member such tape, riskless reports (including the non- the offsetting portion of a riskless transaction fees in the clearing reports tape portion of a riskless transaction principal transaction or an agency that Nasdaq forwards to the National taking place on other national securities transaction where a firm acts as agent on Securities Clearing Corporation exchanges or over-the-counter) to ACT.4 behalf of another member firm. As such, (‘‘NSCC’’) for trade clearance. Nasdaq These reports are intended to facilitate FINRA’s rule prevents firms from using will impose a $0.03 per-side fee for each the transfer of information between a market’s (FINRA’s) functionality to such clearing report. Nasdaq notes that parties to the transactions; make facilitate riskless securities transfers under NASD Rule 7002B, FINRA/ electronically available trade record between two broker units of a single Nasdaq TRF participants are charged a 5 information in the system to parties; member. Nasdaq, however, believes fee of $0.03 per side for submission of and, if requested, the ultimate that using non-tape reports in such a a clearing report to transfer a transaction manner is desirable and proposes fee charged by one FINRA member to 4 ACT is a technology asset of Nasdaq. Prior to the offering an ‘‘Intra-Broker’’ non-tape another. commencement of operation of the Trade Reporting reporting capacity submission for use in Facility (now the FINRA/Nasdaq TRF) and the start these circumstances. For example, Firm Step-Outs of Nasdaq’s operation as a national securities ABCD and ABCQ are entities of ABC exchange in August 2006, it was common for Although not defined by rule, a step- industry participants to refer to ’reporting trades to Brokerage, but two completely different out is transfer of all or a portion of a ACT.’ Now, ACT technology serves multiple SROs/ business units. ABCD uses ABCQ’s broker-dealer’s securities position to markets and provides an electronic system through another broker-dealer that does not which certain trades, transfers, and instructions can 5 In effect, FINRA’s position prohibits a firm from constitute a trade.6 be reported or communicated. Among other moving riskless share potions to itself. functions, ACT connects to DTCC’s continuous net Consolidation through merger and acquisition is settlement and trade comparison systems for common in the securities industry, and there are 6 For example, one broker might buy a block of equities, with all clearing submissions being environments where, due to lack of integration, it securities on behalf of several other broker-dealer marked to accurately reflect the executing market. would be preferable for firms to move shares customers. That broker ‘‘steps-out’’ of the initial ACT responds to all entries with rejects or between elements of the same broker by submitting trade to transfer all or a portion of its position to acknowledgements, stores all records submitted to appropriate non-tape share transfer reports to and its broker-dealer customers. In this situation, the it, and provides both step-out and sales fee transfer through a third-party system (like ACT) rather than block transaction effected in a securities market will capabilities to users. in-house systems—if they exist. Continued

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This filing builds upon Nasdaq’s member to another clearing member for Nasdaq believes that the above previous attempts to provide useful accounting purposes 11 but also, for proposals enhance the ability of Nasdaq step-out parameters for its members. example, for stock loan purposes to members to transfer securities positions Nasdaq initially offered step-out service a short position.12 and their associated fees in an efficient capability in 2007 in light of FINRA Second, Nasdaq proposes to eliminate and transparent manner. rules that restricted step-outs to those the authorizing agreement requirement portions of trades that were originally when Nasdaq members use ACT to 2. Statutory Basis executed by and reported to FINRA effect a step-out along with a sales or Nasdaq believes that the proposed facilities.7 Nasdaq viewed this similar fee. Nasdaq states that step-outs rule change is consistent with the requirement as overly restrictive are already completed pursuant to provisions of Section 6 of the Act,13 in because certain broker-dealers wished to formal agreements among Nasdaq general, and with Sections 6(b)(4) and engage in step-outs but either did not members or through ACT’s comparison (5) of the Act,14 in particular, in that the have systems in place to capture the processes, which renders the current proposal provides for the equitable venue of the original trade execution Nasdaq requirement unnecessarily allocation of reasonable dues, fees and and/or may have executed various duplicative. Nasdaq points out that the other charges among members and portions of the underlying trade in non- transaction comparison process requires issuers and other persons using any FINRA facilities, thereby preventing the implicit acquiescence of both parties facility or system which Nasdaq them from being able to comply with for the ACT system to complete the operates or controls, and is designed to the FINRA requirements. Accordingly, step-out transaction. In other words, a prevent fraudulent and manipulative Nasdaq allowed step-out capability with member will retain an opportunity to acts and practices, to promote just and respect to any trade that a Nasdaq manually reject or reverse the step-out equitable principles of trade, to foster member was a party to regardless of the and fee transfer arrangement if it cooperation and coordination with market on which the trade was disagrees with their terms when persons engaged in regulating, clearing, executed.8 presented to it even after it is initially settling, processing information with Nasdaq amended its step-out rules affirmed. As support for this proposed respect to, and facilitating transactions again in 2007 to specify that an rule change, Nasdaq states that it in securities, to remove impediments to authorizing agreement is required determined through discussions with its and perfect the mechanism of a free and between clearing firm members when member firms that many firms preferred open market and a national market they seek to transfer certain sales fees to handle step-outs on a match/compare system, and, in general, to protect but not the underlying shares; no basis, i.e. manually, even when they had investors and the public interest. authorizing agreement is required when a fee agreement between them and that Nasdaq believes that enhancing its step- Nasdaq members conduct step-outs it was an unnecessary burden for firms out and fee transfer functionality when such transfers are accompanied by to sign separate agreements to move benefits its members by enhancing the a transfer of the underlying shares Section 31 fees associated with step-out efficiency and transparency of their only.9 submissions to ACT since this post-trade operations. Nasdaq’s In this filing, Nasdaq proposes to functionality already was in place on proposed fees are reasonable and further broaden its step-out parameters. ACT. comparable to other fees for reporting First, Nasdaq would expand the scope This proposed rule change would not submissions. of step outs to include all securities change the requirement of a formal sales transfers from one Nasdaq member to fee transfer agreement between firms B. Self-Regulatory Organization’s another provided that the transfer does that wish to use ACT to move sales fees Statement on Burden on Competition not constitute a reportable trade. Thus, without an accompanying transfer of Nasdaq does not believe that the under the proposed rule, the step-out securities. Nasdaq believes that it is proposed rule change will result in any could not only be used to allocate important to retain the requirement that burden on competition that is not securities positions originating from a the parties to a fee transfer have a necessary or appropriate in furtherance previously executed trade 10 or to written agreement specifically of the purposes of the Act. transfer securities from one clearing permitting such fee transfers because a sales fee transfer that moves no shares C. Self-Regulatory Organization’s Statement on Comments on the contain instructions for NSCC to allocate certain is not a step-out and therefore there are positions to the stepped-out broker’s customers. In no specific share movements for firms to Proposed Rule Change Received From another form of a step-out that occurs outside a readily identify as being associated with Members, Participants or Others securities exchange, a broker uses a clearing-only report through ACT to transfer some or all of its the fee transfer. Written comments were neither securities position from an account at one clearing Finally, Nasdaq proposes to clarify solicited nor received. broker to an account at another clearing broker, for Nasdaq members’ reporting its own internal accounting purposes. requirements associated with step-out III. Date of Effectiveness of the 7 See Securities Exchange Act Release No. 56345 submissions to ACT. Nasdaq proposes Proposed Rule Change and Timing for (Aug. 31, 2007), 72 FR 51880 (Sep. 11, 2007). to amend Rule 7038(d) by adding Commission Action 8 The step-out report submitted to ACT under this rule change was marked as a Nasdaq Exchange language that would state that (1) Within 35 days of the date of entry so as to clearly distinguish it from an NASD/ members may not submit step-outs into publication of this notice in the Federal Nasdaq TRF entry, which also is reported through ACT for the purpose of ‘‘effecting’’ Register or within such longer period (i) ACT. Also under this rule change, the parties to a (instead of ‘‘reporting a trade as the Commission may designate up to step-out under Nasdaq rules must all be Nasdaq members and must be parties to an agreement such execution’’) a transaction required to be 90 days of such date if it finds such as the NASD’s new Uniform Trade Reporting trade reported; and (2) submitting step- longer period to be appropriate and Facility Service Bureau/Executing Broker outs into ACT does not satisfy any other publishes its reasons for so finding, or Agreement under which the broker transferring the SRO’s requirements that members might (ii) as to which Nasdaq consents, the position has received authorization from the transferee broker to act on its behalf. have to report transactions. Commission will: 9 See Securities Exchange Act Release No. 56929 (Dec. 7, 2007), 72 FR 71176 (Dec. 14, 2007). 11 See Nasdaq Rule 7038(b)(ii). 13 15 U.S.C. 78f. 10 See Nasdaq Rule 7038(b)(i). 12 See Proposed Rule 7038(b). 14 15 U.S.C. 78f(b)(4) and (5).

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(A) By order approve such proposed For the Commission, by the Division of SOCIAL SECURITY ADMINISTRATION rule change; or Trading and Markets, pursuant to delegated (B) Institute proceedings to determine authority.15 Agency Information Collection whether the proposed rule change Florence E. Harmon, Activities: Proposed Request and should be disapproved. Acting Secretary. Comment Request [FR Doc. E8–15759 Filed 7–10–08; 8:45 am] IV. Solicitation of Comments The Social Security Administration BILLING CODE 8010–01–P (SSA) publishes a list of information Interested persons are invited to collection packages requiring clearance submit written data, views, and by the Office of Management and arguments concerning the foregoing, SMALL BUSINESS ADMINISTRATION Budget (OMB) in compliance with including whether the proposed rule Public Law (Pub. L.) 104–13, the change is consistent with the Act. [Disaster Declaration #11288 and #11289] Paperwork Reduction Act of 1995, Comments may be submitted by any of Wisconsin Disaster Number WI–00013 effective October 1, 1995. This notice the following methods: includes revisions to OMB-approved AGENCY: U.S. Small Business Electronic Comments information collections and extensions Administration. • (no change) of existing OMB-approved Use the Commission’s Internet ACTION: Amendment 4. comment form (http://www.sec.gov/ information collections. SSA is soliciting comments on the rules/sro.shtml); or SUMMARY: This is an amendment of the accuracy of the Agency’s burden • Send an e-mail to rule- Presidential declaration of a major estimate; the need for the information; [email protected]. Please include File disaster for the State of Wisconsin its practical utility; ways to enhance its Number SR–NASDAQ–2008–033 on the (FEMA–1768–DR), dated 06/14/2008. quality, utility, and clarity; and ways to subject line. Incident: Severe Storms, Tornadoes, and Flooding. minimize the burden on respondents, Paper Comments Incident Period: 06/05/2008 and including the use of automated • Send paper comments in triplicate continuing. collection techniques or other forms of to Secretary, Securities and Exchange Effective Date: 06/26/2008. information technology. Mail, e-mail, or Commission, 100 F Street, NE., Physical Loan Application Deadline fax your comments and Washington, DC 20549–1090. Date: 08/13/2008. recommendations on the information collection(s) to the OMB Desk Officer All submissions should refer to File EIDL Loan Application Deadline Date: 03/13/2009. and the SSA Reports Clearance Officer Number SR-NASDAQ–2008–033. This to the addresses or fax numbers listed file number should be included on the ADDRESSES: Submit completed loan applications to: U.S. Small Business below. subject line if e-mail is used. To help the (OMB), Office of Management and Administration, Processing and Commission process and review your Budget, Attn: Desk Officer for SSA, Fax: Disbursement Center, 14925 Kingsport comments more efficiently, please use 202–395–6974, e-mail address: Road, Fort Worth, TX 76155. only one method. The Commission will [email protected]; post all comments on the Commission’s FOR FURTHER INFORMATION CONTACT: (SSA), Social Security Internet Web site (http://www.sec.gov/ A Escobar, Office of Disaster Assistance, Administration, DCBFM, Attn: Reports rules/sro.shtml). Copies of the U.S. Small Business Administration, Clearance Officer, 1333 Annex Building, submission, all subsequent 409 3rd Street, SW., Suite 6050, 6401 Security Blvd., Baltimore, MD amendments, all written statements Washington, DC 20416. 21235, Fax: 410–965–6400, e-mail with respect to the proposed rule SUPPLEMENTARY INFORMATION: The notice address: [email protected]. change that are filed with the of the Presidential disaster declaration I. The information collections listed Commission, and all written for the State of Wisconsin, dated 06/14/ below are pending at SSA. SSA will communications relating to the 2008 is hereby amended to include the submit them to OMB within 60 days proposed rule change between the following areas as adversely affected by from the date of this notice. Therefore, Commission and any person, other than the disaster: your comments would be most helpful those that may be withheld from the Primary Counties: (Physical Damage if you submit them to SSA within 60 public in accordance with the and Economic Injury Loans): days from the date of this publication. provisions of 5 U.S.C. 552, will be Adams, Calumet, Green Lake, You can obtain copies of the collection available for inspection and copying in Jefferson, La Crosse, Walworth. instruments by calling the SSA Reports the Commission’s Public Reference Contiguous Counties: (Economic Injury Clearance Officer at 410–965–0454 or by Room, 100 F Street, NE., Washington, Loans Only): writing to the address listed above. DC 20549, on official business days Minnesota: Winona. 1. Disability Update Report—20 CFR between the hours of 10 a.m. and 3 p.m. Wisconsin: Brown, Portage, 404.1589–.1595, 416.988–.996—0960– Copies of such filing also will be Trempealeau, Jackson, Wood. 0511. SSA periodically reviews current available for inspection and copying at All other information in the original disability benefits recipients’ cases to the principal offices of the Exchange. declaration remains unchanged. determine if these beneficiaries should All comments received will be posted continue to receive disability payments. without change; the Commission does (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) In cases where these reviews indicate not edit personal identifying beneficiaries might have experienced a information from submissions. You Herbert L. Mitchell, medical improvement, SSA must should submit only information that Associate Administrator for Disaster investigate further. The Agency uses you wish to make available publicly. All Assistance. form SSA–455/SSA–455–OCR–SM, the submissions should refer to File [FR Doc. E8–15267 Filed 7–10–08; 8:45 am] Disability Update Report, for this Number SR–NASDAQ–2008–033 and BILLING CODE 8025–01–M purpose. Specifically, SSA uses the should be submitted on or before information it gathers on this form to August 1, 2008. 15 17 CFR 200.30–3(a)(12). determine if (1) There is enough

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evidence to warrant referring the local State election agencies for benefits recipients choose to receive beneficiary for a full medical verification. The election agencies their payments via the Direct Deposit Continuing Disability Review (CDR); (2) forward this information to their State Program, in which SSA transfers funds the beneficiary’s impairment has not Motor Vehicle Administration (MVA) directly to recipients’ accounts at a changed enough to warrant a CDR; or (3) that inputs the data into the American financial institution (FI). However, there are unresolved work-related issues Association of Motor Vehicle many Title II payment recipients still for the beneficiary. The respondents are Administrations, a central consolidation receive their payments through Title II and Title XVI disability payment system that routes the voter data to traditional paper checks. In an effort to recipients. SSA’s Help America Vote Verification encourage these beneficiaries to change Type of Request: Extension of an system. Once SSA’s HAVV system has from paper checks to the Direct Deposit OMB-approved information collection. confirmed the identity of the voter, the Program, SSA is collaborating with the Number of Respondents: 880,000. information will be returned along the Department of the Treasury and several Frequency of Response: 1. same route (in reverse) until it reaches FIs to implement the National Direct Average Burden per Response: 15 the State election agency. The official Deposit Initiative. In this program, SSA minutes. respondents for this collection are the will work with FIs to determine which Estimated Annual Burden: 220,000 State MVAs. of the target Title II beneficiaries have hours. Type of Request: Extension of an accounts at the participating banks. The 2. Help America Vote Act (HAVA)— OMB-approved information collection. 0960–0706. H.R. 3295, the Help America banks will then send forms to these Number of Respondents: 2,352,204. beneficiaries encouraging them to enroll Vote Act (HAVA) of 2002, mandates that Frequency of Response: 1. in the Direct Deposit Program. The States verify the identities of newly Average Burden per Response: 2 respondents are the participating FIs registered voters. When newly minutes. registered voters do not have drivers’ Estimated Annual Burden: 78,407 and Title II beneficiaries currently licenses or State-issued ID cards, they hours. receiving their payments via check. must supply the last four digits of their 3. National Direct Deposit Initiative— Type of Request: Extension of an Social Security Numbers (SSNs) to their 31 CFR 210—0960–0711. Many SSA OMB-approved information collection.

Average Estimated Estimated Type of Information Number of Frequency burden annual Cost cost burden Total annual respondent collection respondents of response response burden requirement per cost burden requirement (minutes) (hours) respondent

Title II Payment Direct Deposit 100,000 1 2 3,333 N/A N/A N/A Recipients. Enrollment Form. Financial Institu- Data screening/ 10 1 240 40 Printing/ mailing $1,039 $10,390 tions (banks). matching ac- of 100,000 en- tivities; SSA’s rollment forms. data manage- ment require- ments.

Totals ...... 110,000 ...... 3,373 ...... 10,390

Total Estimated Annual Burden make eligibility determinations for completes the form(s) based on (hours): 3,373 hours. Social Security disability benefits and information provided by the applicant, Total Estimated Annual Cost Burden SSI payments. For SSA to obtain and sends the form(s) to the designated ($): $10,390. medical evidence, an applicant must medical source(s). The respondents are 4. Authorization to Disclose authorize his or her medical source(s) to applicants for Title II benefits and Title Information to Social Security release the information to SSA. The XVI payments. Administration—20 CFR 404.1512 & 20 applicant may use form SSA–827 to CFR 416.912—0960–0623. SSA must provide consent for the release of Type of Request: Revision of an OMB- obtain sufficient medical evidence to information. Generally, the State DDS approved information collection.

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

Reading, Signing, and Dating the 1st SSA–827 (10 minutes)

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

Signing and Dating Three Additional SSA–827s

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

Reading the Explanation of the SSA–827 on the Internet

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

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Collectively: statement explaining why SSA should services to youth who are receiving Number of Respondents: 3,853,928. not stop his/her payments. That written disability benefits or have a high Frequency of Response (Average per statement is the information collected in probability of receiving them. SSA will case): 4. this process. In the last three years, we fully implement YTD projects in 10 sites Average Burden per Response: 13 experienced an average of eight across the country. The evaluation will minutes to complete all 4 forms. instances where the reviewing unit produce empirical evidence on the Average Burden to Read Internet reversed the DHO determination. effects of the waivers and project Instructions: 3 minutes. Respondents are CDR claimants whose services including educational Estimated Annual Burden for Reading benefits are going to cease. attainment, employment, earnings, and Internet Explanation: 29,312. Type of Request: Extension of an receipt of benefits by youth with Estimated Annual Burden to read OMB-approved information collection. disabilities but also on the Social instructions and complete the form: Number of Respondents: 8. Security Trust Fund and federal income 864,329 hours. Frequency of Response: 1. tax revenues. This type of project is 5. Review of the Disability Hearing Average Burden per Response: 60 authorized by Sections 1110 and 234 of Officer’s Reconsidered Determinations minutes. the Social Security Act. Before It Is Issued—20 CFR 404.913– Estimated Annual Burden: 8 hours. Project Description 404.918, 404.1512–404.1515, 404.1589, II. SSA has submitted the information 416.912–416.915, 416.989, 416.1413– collections listed below. Your Given the importance of estimating 416.1418, 404.918(d) and 416.1418(d)— comments on the information 0960–0709. When SSA approves a YTD effects as accurately as possible, collections will be most useful if OMB we will evaluate the project using claimant for Social Security Disability and SSA receive them within 30 days Benefits, it periodically conducts a rigorous analytic methods based on from the date of this publication. You Continuing Disability Review (CDR), randomly assigning youth to a treatment can request a copy of the information during which the Agency reviews the or control group. We will conduct collections by e-mail, claimant’s status to see if his/her several data collections. These include [email protected], fax 410–965–6400, condition has improved to the point (1) Baseline interviews with youth and or by calling the SSA Reports Clearance where the claimant is capable of their parents or guardians prior to Officer at 410–965–0454. working. If SSA notifies a claimant that random assignment; (2) follow-up the Agency will cease paying his/her 1. Youth Transition Process interviews at 12 and 36 months after benefits, he/she may appeal that Demonstration Evaluation Data random assignment; (3) interviews determination. The first appeal gives the Collection—0960–0687 and/or roundtable discussions with claimant the opportunity for a full local program administrators, program evidentiary hearing before a Disability Background supervisors, and service delivery staff; Hearing Officer (DHO). A federal The purpose of the Youth Transition and (4) focus groups of youths, their component reviews a small sample of Demonstration (YTD) project is to help parents, and service providers. The the DHOs’ determinations. It is rare for young people with disabilities make the respondents are youths with disabilities the reviewing component to reverse a transition from school to work. While enrolled in the project; their parents or DHO determination favorable to the participating in the project, youth can guardians; program staff; and service claimant. Before SSA can effect the continue to work and/or continue their providers. unfavorable determination, the claimant education because SSA waives certain Type of Request: Revision of an has 10 days to provide a written disability program rules and offers existing OMB clearance.

Average Number of Responses burden per Total response Data collection year Collection respondents per response burden respondent (hours) (hours)

2008 ...... Baseline ...... 2,531 1 0 .55 1,392 Informed consent ...... 2,531 1 0 .083 210 12 month follow-up ...... 1,502 1 0.83 1,247 In-depth interviews ...... 120 1 0.42 50 Focus group ...... 60 1 1.5 90 Program staff/service provider ...... 32 1 1 32

Total 2008 ...... 3,021

Dated: July 7, 2008. DEPARTMENT OF STATE Appropriations Act, 2008 (Div. J, Pub. L. Elizabeth A. Davidson, 110–161) (the ‘‘Act’’), I hereby [Public Notice 6286] Reports Clearance Officer, Social Security determine that waiving the requirements of subsection (a) of Administration. Determination Pursuant to Section 686 Section 686 of the Act is important to [FR Doc. E8–15752 Filed 7–10–08; 8:45 am] of the Department of State, Foreign the national interests of the United BILLING CODE 4191–02–P Operations, and Related Programs Appropriations Act, 2008 States, and I hereby so waive. This Determination shall be published Pursuant to the authority vested in me in the Federal Register and copies shall by the laws of the United States, be provided to the appropriate including Section 686(b) of the committees of the Congress. Department of State, Foreign Operations, and Related Programs

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Dated: June 25, 2008. including flight training. In response to foreign nationals to participate in flight Condoleezza Rice, this proposed rule and by letter dated training programs under the M visa. As Secretary of State, Department of State. May 30, 2006, the Office of Advocacy of all eight existing Department of State [FR Doc. E8–15862 Filed 7–10–08; 8:45 am] the Small Business Administration designated sponsors may continue, BILLING CODE 4710–23–P opined, that if adopted, the without interruption, the administration Department’s proposed modifications to of flight training programs for foreign 22 CFR 62.22(o), could have significant nationals, the Department believes that DEPARTMENT OF STATE impact on a substantial number of small concerns raised by the Office of entities, in particular, flight training Advocacy of the Small Business [Public Notice: 6284] schools that sponsor alien flight Administration are outweighed by the candidates entering the United States on Exchange Visitor Program— security interests of the Government. the J visa. Given this comment, the Termination of Flight Training The Department’s position is sound Department did not modify then Programs given the expertise of DHS to administer existing flight training regulations when and monitor such programs, efficiencies it adopted its Interim Final rule (72 FR ACTION: Statement of Policy. of government operation, and the 33669, June 19, 2007). security issues inherent in flight In December 2007, the Department FOR FURTHER INFORMATION CONTACT: training. Stanley S. Colvin, Deputy Assistant published a Final Rule (72 FR 72245, The flight training sponsors will December 20, 2007) that permits the Secretary, Office of Private Sector continue to have obligations to their termination of designated programs that Exchange, Bureau of Educational and exchange visitors pursuant to 22 CFR the Department determines no longer Cultural Affairs, U.S. Department of 62.63: they must fulfill their further its public diplomacy mission or State, SA–44, 301 4th St., SW., Room responsibilities to all exchange visitors compromises the national security of 734, Washington, DC 20547. E-mail: who are in the United States at the time the United States (22 CFR 62.62). In [email protected]; FAX: 202–203– of their program termination until the adopting this provision, the Department 5087. individual’s exchange program is explained that the Exchange Visitor SUMMARY: Since 1949 the Department of completed. Also, sponsors must notify Program is the cornerstone of the State (Department) has designated prospective exchange visitors who have Department’s public diplomacy efforts not yet entered the United States that private sector and governmental entities and integral to the furtherance of the to conduct training programs for eligible the program has been terminated. Such President’s Constitutional prerogatives sponsors will have access to SEVIS to foreign nationals. For the past twenty in conducting foreign affairs (72 FR years, such programs have included manage their existing program 62112). Pursuant to this regulatory participants, but will not be able to flight training activities. Currently, eight authority, the Department hereby organizations facilitate the entry into the initiate new programs after December determines that all flight training 31, 2009. United States of approximately 350 programs no longer further the public foreign nationals annually for the diplomacy mission of the Department, Dated: June 30, 2008. purpose of flight training under the and accordingly, effective June 1, 2010, Stanley S. Colvin, aegis of the Exchange Visitor Program the Department will terminate the Deputy Assistant Secretary, Office of Private and its J-visa. Regulations dealing Exchange Visitor Program sponsor Sector Exchange, Bureau of Educational and specifically with flight training designations of all eight sponsors of Cultural Affairs, Department of State. programs appear at 22 CFR 62.22(o). flight training programs. [FR Doc. E8–15454 Filed 7–10–08; 8:45 am] These eight Department of State The Department’s decision to BILLING CODE 4710–05–P designated flight schools are also eliminate flight training from the certified by the Department of Exchange Visitor Program is based on Homeland Security (DHS) to issue the thorough consideration and DEPARTMENT OF TRANSPORTATION Form I–20, which is needed to obtain an deliberation. As explained in its January M visa. Regulations governing the M 2006 Statement of Policy, the Office of the Secretary visa appear at 8 CFR 214.2(m). DHS is Department does not have the expertise [Docket Number: OST–95–179 and OST–95– also responsible for the security-related and resources to monitor fully flight 623] screening of all alien flight training training programs and ensure their candidates. Regulations governing flight compliance with the national security Notice of Request for Extension of a training candidate screening appear at concerns that underlie the Patriot Act Previously Approved Collection 49 CFR 1552. In January 2006, the (Pub. L. 107–56). Further, the Aviation Department issued a Statement of Policy and Transportation Security Act of 2001 AGENCY: Office of the Secretary. on J–1 Flight Training Programs (71 FR (49 U.S.C. 44939), assigns to the ACTION: Notice and request for 3913, January 24, 2006) providing notice Attorney General discretion to request a comments. that it would henceforth not designate wide variety of information from alien SUMMARY: In compliance with the any new J visa flight training program flight candidates in order to determine Paperwork Reduction Act of 1995, sponsors; nor would it allow currently- whether such flight candidates present Public Law 104–13, this notice designated flight training programs to a threat to aviation or national security. announces the Department of expand their programs, pending a In light of this statutory directive, DHS Transportation’s (DOT) intention to determination as to which Federal issued an Interim Final Rule on request extension of a previously agency ultimately would assume sole September 20, 2004, assigning full approved information collection. responsibility for administering and responsibility for the screening of alien monitoring these programs. flight training candidates to DHS. DATES: Comments on this notice must be In April 2006, the Department Finally, all Department designated flight received on or before September 9, published proposed modifications to its training sponsors are certified by the 2008. regulations governing the Exchange Department of Homeland Security to ADDRESSES: You may submit a comment Visitor Program’s trainee category, issue the Form I–20 and thereby permit (identified by DOT Docket Numbers

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OST–95–179 and OST–95–623) by any Type of Request: Extension of a airline whose designator code is shown of the following methods: previously approved collection. on the ticket, schedule, or itinerary and • Web site: http://regulations.gov. Abstract: Codesharing is the name unless they know the identity of the Follow the instructions for submitting given to a common airline industry airline on which they will be flying. The comments on the DOT electronic docket marketing practice where, by mutual growth in the use of codesharing, wet- site. agreement between cooperating carriers, leasing, and similar marketing tools, • Fax: 1–202–493–2251. at least one of the airline designator particularly in international air • Mail: Docket Management Facility; codes used on a flight is different from transportation, had given the U.S. Department of Transportation, 1200 that of the airline operating the aircraft. Department concern about whether the New Jersey Avenue, SE., West Building, In one version, two or more airlines then-current disclosure rules (14 CFR Room W12–140, Washington, DC each use their own designator codes on 399.88) protected the public interest 20590–001. the same aircraft operation. Although adequately and led the Department to • Hand Delivery: Room W12–140 on only one airline operates the flight, each adopt specific regulations requiring the the ground level of the West Building, airline in a codesharing arrangement disclosure of code-sharing arrangements 1200 New Jersey Avenue, SE., may hold out, market, and sell the flight and long-term wet leases on March 15, Washington, DC, between 9 a.m. and 5 as its own in published schedules. 1999. (14 CFR part 257) p.m., Monday through Friday, except Codesharing also refers to other These regulations required U.S. Wednesday and Federal Holidays. arrangements, such as when a code on airlines, foreign airlines and travel Instructions: All comments must a passenger’s ticket is not that of the agents doing business in the United include the agency name and Docket operator of the flight, but where the States, to notify passengers of the Numbers OST–95–179 and OST–95– operator does not also hold out the existence of code-sharing or long-term 623. Note that all comments received service in its own name. Such wet lease arrangements. It also required will be posted without change to codesharing arrangements are common U.S. airlines, foreign airlines and travel http://regulations.gov, including and between commuter air carriers and their agents to tell prospective consumers, in personal information provided. You larger affiliates, and the number of all oral communications before booking should know that anyone is able to arrangements between U.S. air carriers transportation, that the transporting search the electronic from of all and foreign air carriers has also been airline is not the airline whose comments received into any of our increasing. Arrangements falling into designator code will appear on travel dockets by the name of the individual this category are similar to leases of documents and identify the transporting submitting the comment (or signing the aircraft with crew (wet leases). airline by its corporate name and any comment, if submitted on behalf of an The Department recognizes the strong other name under which that service is association, business, labor union, etc.). preference of air travelers for on-line held out to the public. Docket: For access to the docket to service (service by a single carrier) on Respondents: All U.S. air carriers, read background documents or connecting flights over interline service foreign air carriers, computer comments, go to http://regulations.gov (service by multiple carriers). reservations systems (CRSs), and travel at any time or to Room W12–140 on the Codesharing arrangements are, in part, a agents doing business in the United ground level of the West Building, 1200 marketing response to this demand for States, and the traveling public. New Jersey Avenue, SE., Washington, on-line service. Often, codesharing Estimated Total Annual Burden: DC, between 9 a.m. and 5 a.m., Monday partners offer services similar to those Annual reporting burden for this data through Friday, except Wednesday and available for on-line connections with collection is estimated at 653,183 hours federal holidays. the goal of offering ‘‘seamless’’ service for all travel agents and airline ticket If you wish to receive confirmation of (i.e., service where the transfers from agents and 653,183 hours for air receipt of your written comments, flight to flight or airline to airline are travelers, based on 15 seconds per please include a self-addressed, facilitated). For example, they may phone call and an average of 1.5 phone stamped postcard with the following locate gates near each other to make calls per trip, for the approximately statement: ‘‘Comments on Docket OST– connections more convenient or 33% of codeshare itineraries that coordinate baggage handling to give 95–179 and OST–95–623’’. The Docket involve personal contact. Most of this greater assurance that baggage will be Clerk will date stamp the postcard prior data collection (third party notification) properly handled. is accomplished through highly to returning it to you via the U.S. mail. Codesharing arrangements can help Please note that due to delays in the automated computerized systems. airlines operate more efficiently because Estimated Number of Respondents: delivery of U.S. mail to Federal offices they can reduce costs by providing a 16,000, excluding travelers. in Washington, DC, we recommend that joint service with one aircraft rather Estimated Time per Response: At 15 persons consider an alternative method than operating separate services with seconds per call and an average of 1.5 (Internet, fax, or professional delivery two aircraft. Particularly in thin calls per trip, a total of 22.5 seconds per service) to submit comments to the markets, this efficiency can lead to respondent or traveler, for the docket and ensure their timely receipt at increased price and service options for approximately 33% of codeshare U.S. DOT. consumers or enable the use of itineraries that involve personal contact. FOR FURTHER INFORMATION CONTACT: equipment sized appropriately for the Comments are invited on: (a) Whether Aleta Best, Office of the Assistant market. Therefore, the Department this collection of information (third Secretary for Aviation and International recognizes that codesharing, as well as party notification) is necessary for the Affairs, Office of the Secretary, U.S. long-term wet leases, can offer proper performance of the agency, Department of Transportation, 1200 significant economic benefits. including whether the information will New Jersey Avenue, SE., Washington, Although codesharing and wet-lease have practical utility; (b) the accuracy of DC, 20590, (202) 493–0797. arrangements can offer significant the agency’s estimate of burden of the SUPPLEMENTARY INFORMATION: consumer benefits, they can also be proposed collection of information; (c) Title: Disclosure of Codesharing. misleading unless consumers know that ways to enhance the quality, utility, and OMB Control Number: 2105–0537. the transportation they are considering clarity of the information collected; and Expiration Date: November 30, 2008. for purchase will not be provided by the (d) ways to minimize the burden of the

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collection of information on the 3. Federal Aviation Administration, quality, wetlands, ecological resources, respondents, including through the use Chicago Airports District Office, 2300 floodplains, historic resources, of automated techniques or other forms East Devon Avenue, Room 320, Des hazardous wastes, socioeconomics, and of information technology. Plaines, Illinois 60018. economic factors. FOR FURTHER INFORMATION CONTACT: All responses to this notice will be Alternative One—Sponsor’s Proposed summarized and included in the request Amy B. Hanson, Environmental Project for OMB approval. All comments will Protection Specialist, Federal Aviation also become a matter of public record. Administration, Chicago Airports Runway 13/31 would be extended Issued in Washington, DC. District Office, Room 320, 2300 East 1,100 feet to the north from 3,300 linear Todd M. Homan, Devon Avenue, Des Plaines, Illinois feet to 4,400 linear feet. This length 60018. Ms. Hanson can be contacted at Director, Office of Aviation Analysis. would maintain the airport’s ability to (847) 294–7354 (voice), (847) 294–7046 accommodate current and projected [FR Doc. E8–15783 Filed 7–10–08; 8:45 am] (facsimile) or by e-mail at airport operations. BILLING CODE 4910–9X–P [email protected]. To compliment the runway extension, Issued in Des Plaines, Illinois, on June 19, the corresponding taxiway for Runway DEPARTMENT OF TRANSPORTATION 2008. 13/31 would be extended to the north James G. Keefer, from 3,300 linear feet to 4,400 linear Federal Aviation Administration (FAA) Manager, Chicago Airports District Office, feet. There would be associated levee FAA, Great Lakes Region. construction and major realignment of Notice of Approval of Finding of No [FR Doc. E8–15551 Filed 7–10–08; 8:45 am] drainage in order to protect the runway Significant Impact (FONSI) on a Short BILLING CODE 4910–13–M extension against flooding. The GPS Form Environmental Assessment (EA); instrument approach for Runway 13/31 Chicago/Rockford International would be reprogrammed to Airport, Rockford, IL DEPARTMENT OF TRANSPORTATION accommodate the extension of the runway. AGENCY: Federal Aviation Federal Aviation Administration Administration (FAA), DOT. Alternative Two ACTION: Notice of Intent To Prepare an Notice of Approval of Runway 13/31 would be extended Documents. Environmental Impact Statement and Hold Scoping Meeting; Gnoss Field, 1,100 feet to the south from 3,300 linear SUMMARY: The Federal Aviation Novato, Marin County, CA feet to 4,400 linear feet. This length Administration (FAA) is issuing this would maintain the airport’s ability to AGENCY: Federal Aviation accommodate current and projected notice to advise the public of the Administration, DOT. approval of a Finding of No Significant airport operations. ACTION: Notice of intent and notice of Impact (FONSI) on an Environmental To compliment the runway extension, scoping meeting. Assessment for proposed Federal the corresponding taxiway for Runway actions at Chicago/Rockford SUMMARY: The Federal Aviation 13/31 would be extended to the south International Airport, Rockford, Illinois. Administration (FAA) is issuing this from 3,300 linear feet to 4,400 linear The FONSI specifies that the proposed notice to advise the public that an feet. There would be associated levee federal actions and local development Environmental Impact Statement (EIS) construction and major realignment of projects are consistent with existing will be prepared and considered for the drainage in order to protect the runway environmental policies and objectives as proposed extension of a runway, extension against flooding. The GPS set forth in the National Environmental corresponding taxiway extension, instrument approach for Runway 13/31 Policy Act of 1969 and will not associated levee construction and would be reprogrammed to significantly affect the quality of the realignment of drainage, and accommodate the extension of the environment. reprogramming of the GPS Instrument runway. A description of the proposed Federal Approach for the extended runway. To Alternative Three actions is: (a) To issue an environmental ensure that all significant issues related finding to allow approval of the Airport to the proposed action are identified, a Runway 13/31 would be extended to Layout Plan (ALP) for the development public scoping meeting will be held. the north and to the south to bring the items listed below. FOR FURTHER INFORMATION CONTACT: runway length from 3,300 linear feet to The items in the local airport Barry Franklin, Environmental 4,400 linear feet. This length would development project are to: Acquire Protection Specialist, San Francisco maintain the airport’s ability to approximately 18 acres of vacant land, Airports District Office, Federal accommodate current and projected in fee simple title, in the Runway 25 Aviation Administration, Western- airport operations. Approach and Runway Protection Zone. Pacific Region, 831 Mitten Road, Room To compliment the runway extension, Copies of the environmental decision 210, Burlingame, California 94010– the corresponding taxiway for Runway and the Short Form EA are available for 1303, Telephone: (650) 876–2778, 13/31 would be extended to the north public information review during extension 614. and to the south to bring the total regular business hours at the following SUPPLEMENTARY INFORMATION: The Lead taxiway length from 3,300 linear feet to locations: Agency for the preparation of the EIS is 4,400 linear feet. There would be 1. Chicago/Rockford International the FAA. The FAA will prepare an EIS associated levee construction and major Airport, 60 Airport Drive, Rockford, IL to evaluate the following development realignment of drainage in order to 61109. alternatives and the No Action protect the runway extension against 2. Division of Aeronautics—Illinois Alternative as described below. The EIS flooding. The GPS instrument approach Department of Transportation, One will determine all environmental for Runway 13/31 would be Langhorne Bond Drive, Capital Airport, impacts, such as and not limited to, reprogrammed to accommodate the Springfield, IL 62707. noise impacts, impacts on air and water extension of the runway.

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Alternative Four—No Action land at the Hondo Municipal Airport DEPARTMENT OF TRANSPORTATION Alternative under the provisions of Section 125 of Federal Aviation Administration Under this alternative the existing the Wendell H. Ford Aviation airport would be retained with no Investment Reform Act for the 21st Century (AIR 21). Receipt of Noise Compatibility improvements. The county would not Program and Request for Review for change the infrastructure of the existing DATES: Comments must be received on Meadows Field Airport, Bakersfield, CA airport and no extensions or associated or before August 11, 2008. improvements would be constructed. ADDRESSES: Comments on this AGENCY: Federal Aviation In addition to this Notice of Intent, application may be mailed or delivered Administration, DOT. the County of Marin, California is to the FAA at the following address: Mr. ACTION: Notice. issuing a Notice of Preparation (NOP) of Mike Nicely, Manager, Federal Aviation a Draft Environmental Impact Report Administration, Southwest Region, SUMMARY: The Federal Aviation (EIR), per California Environmental Airports Division, Texas Airports Administration (FAA) announces that it Quality Act (CEQA) of 1970 Guidelines. Development Office, ASW–650, Fort is reviewing a proposed noise The FAA’s EIS and the County’s EIR Worth, Texas 76193–0650. compatibility program that was will be produced concurrently. In addition, one copy of any submitted for Meadows Field Airport Public Scoping Meeting: To ensure comments submitted to the FAA must under the provisions of 49 U.S.C. 47501 that the full range of issues related to be mailed or delivered to the Mr. Robert et seq. (the Aviation Safety and Noise the proposed project are addressed and Herrera, City Manager, at the following Abatement Act, hereinafter referred to that all significant issues are identified, address: 1600 Avenue M, Hondo, Texas as ‘‘the Act’’) and 14 CFR Part 150 by comments and suggestions are invited 78861. County of Kern, California. This from all interested parties. A public program was submitted subsequent to a scoping meeting will be conducted to FOR FURTHER INFORMATION CONTACT: Mr. Steven Cooks Program Manager, Federal determination by FAA that associated identify any significant issues noise exposure maps submitted under associated with the proposed project. Aviation Administration, Texas Airports Development Office, ASW–650, 2601 14 CFR Part 150 for Meadows Field One (1) Public Scoping meeting for Airport were in compliance with the general public will be held on Meacham Boulevard, Fort Worth, Texas 76193–0650, Telephone: (817) 222– applicable requirements, effective August 14, 2008, at the Marin Humane January 16, 2008, 73 FR 9401. The Society Auditorium, 171 Bel Marin Keys 5608, e-mail: [email protected], Fax: (817) 222–5989. proposed noise compatibility program Blvd, Novato, California. The meeting will be approved or disapproved on or The request to release property may will be held from 6:30 p.m. to 8:30 p.m. before December 19, 2008. Pacific Daylight Time (PDT). The FAA be reviewed in person at this same EFFECTIVE DATE: and the County will be accepting location. The effective date of the comments on the scope of both the EIS start of FAA’s review of the noise SUPPLEMENTARY INFORMATION: The FAA compatibility program is June 23, 2008. and EIR at that scoping meeting. invites public comment on the request Written comments concerning the The public comment period ends to release property at the Hondo August 21, 2008. scope of the EIS and EIR may be mailed Municipal Airport under the provisions FOR FURTHER INFORMATION CONTACT: to the individual named above under of the AIR 21. Victor Globa, Federal Aviation the heading FOR FURTHER INFORMATION The following is a brief overview of Administration, Los Angeles Airports CONTACT above, and must be received no the request: later than 5 p.m. PDT, August 29, 2008. District Office, P.O. Box 92007, Los The City of Hondo requests the Questions may be directed to the Angeles, California 90009–2007, release of 30.785 acres of non- individual named above under the Telephone: 310–725–3637. Comments aeronautical airport property. The total heading, FOR FURTHER INFORMATION on the proposed noise compatibility acreage consists of two tracts. One is a CONTACT. program should also be submitted to the 25.783 acre tract and the second tract is above office. Issued in Hawthorne, California on June a 5.002 acre tract, for a total of 30.785 27, 2008. acres. The land was acquired by Deed SUPPLEMENTARY INFORMATION: This Mark A. McClardy, without Warranty from the United notice announces that the FAA is Manager, Airports Division, Western—Pacific States on July 16, 1948. The property to reviewing a proposed noise Region, AWP–600. be released will be sold to allow for compatibility program for Meadows [FR Doc. E8–15209 Filed 7–10–08; 8:45 am] future development of the airport. Field Airport which will be approved or BILLING CODE 4910–13–P Any person may inspect the request disapproved on or before December 19, in person at the FAA office listed above 2008. This notice also announces the under FOR FURTHER INFORMATION availability of this program for public DEPARTMENT OF TRANSPORTATION CONTACT. review and comment. An airport operator who has Federal Aviation Administration In addition, any person may, upon request, inspect the application, notice submitted noise exposure maps that are found by FAA to be in compliance with Notice of Intent To Rule on Request to and other documents relevant to the application in person at the Hondo the requirements of Federal Aviation Release Airport Property at the Hondo Regulations (FAR) Part 150, Municipal Airport, Hondo, TX Municipal Airport, telephone number (830) 426–3378. promulgated pursuant to the Act, may AGENCY: Federal Aviation submit a noise compatibility program Issued in Fort Worth, Texas on July 1, Administration (FAA), DOT. for FAA approval which sets forth the 2008. measures the operator has taken or ACTION: Notice of Request to Release James Michael Nicely, Airport Property. proposes to reduce existing non- Acting Manager, Airports Division. compatible uses and prevent the SUMMARY: The FAA proposes to rule and [FR Doc. E8–15552 Filed 7–10–08; 8:45 am] introduction of additional non- invite public comment on the release of BILLING CODE 4910–13–M compatible uses.

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The FAA has formally received the Issued in Hawthorne, California on June safety, and system linkage to major noise compatibility program for 23, 2008. destinations and freight mobility on the Meadows Field Airport, effective on Mark A. McClardy, existing Seward Highway and Glenn June 23, 2008. The airport operator has Manager, Airports Division, AWP–600, Highway NHS routes. These NHS routes requested that the FAA review this Western-Pacific Region. provide access to major employment material and that the noise mitigation [FR Doc. E8–15550 Filed 7–10–08; 8:45 am] centers in downtown and midtown measures, to be implemented jointly by BILLING CODE 4910–13–M Anchorage and major intermodal port, the airport and surrounding rail, and airport facilities. The Seward communities, be approved as a noise and Glenn Highway NHS routes are compatibility program under section DEPARTMENT OF TRANSPORTATION divided highways coming into the 47504 of the Act. Preliminary review of center of Anchorage, which transition to the submitted material indicates that it Federal Highway Administration urban arterial streets with connecting roads, stop lights, and commercial and conforms to FAR Part 150 requirements Environmental Impact Statement: residential access. The urban arterial for the submittal of noise compatibility Anchorage, Alaska programs, but that further review will be segments of the routes are characterized necessary prior to approval or AGENCY: Federal Highway by high travel demand, congestion, and disapproval of the program. The formal Administration (FHWA), DOT. resulting safety issues caused by traffic review period, limited by law to a ACTION: Notice of intent. levels that have exceeded the capacity maximum of 180 days, will be of the existing arterial street network. completed on or before December 19, SUMMARY: The FHWA is issuing this Alternatives under consideration 2008. notice to advise the public that an include: (1) Taking no action; (2) Environmental Impact Statement will be The FAA’s detailed evaluation will be transportation system management and prepared for the proposed Seward conducted under the provisions of 14 transportation demand management; (3) Highway to Glenn Highway (Highway- CFR Part 150, section 150.33. The transit; (4) connecting the Seward to-Highway) project in Anchorage, primary considerations in the Highway and Glenn Highways on a new Alaska. evaluation process are whether the alignment; (5) upgrading the Seward Highway and Glenn Highway NHS proposed measures may reduce the level FOR FURTHER INFORMATION CONTACT: routes on their existing alignments; and of aviation safety or create an undue Michael Vanderhoof, Division (6) multi-modal options combining burden on interstate or foreign Environmental Coordinator, Federal elements of alternatives 2 through 5. commerce, and whether they are Highway Administration, Alaska Incorporated into and studied with the reasonably consistent with obtaining the Division, 709 West 9th Street, Room various build alternatives will be design goal of reducing existing non- 851, Juneau, AK 99802, Phone: 907– variations of facility type, number of compatible land uses and preventing the 586–7464; Fax: 907–586–7420; e-mail: lanes, grade, and alignment. introduction of additional [email protected] or Jerry Ruehle, Central Region Environmental Letters describing the proposed action noncompatible land uses. and soliciting comments will be sent to Coordinator; Alaska Department of Interested persons are invited to appropriate Federal, State, and local Transportation and Public Facilities; comment on the proposed program with agencies, and to private organizations 4111 Aviation Drive, Anchorage, AK specific reference to these factors. AD and citizens who have previously 99502; Phone: (907) 269–0534; Fax: comments relating to these factors, other expressed or are known to have interest (907) 243–6927; e-mail: than those properly addressed to local in this project. Coordination with [email protected]. land use authorities, will be considered Cooperating and Participating Agencies by the FAA to the extent practicable. SUPPLEMENTARY INFORMATION: The and the public will be conducted in Copies of the noise exposure maps and FHWA and the Alaska Department of accordance with Section 6002 of the the proposed noise compatibility Transportation and Public Facilities in Safe, Accountable, Flexible, Efficient program are available for examination at cooperation with the Municipality of Transportation Equity Act: A Legacy for the following locations: Anchorage, propose to improve the Users (SAFETEA–LU), 23 U.S.C. 139. A Federal Aviation Administration, connection between the Seward and coordination plan will be prepared to National Headquarters, Planning and Glenn Highways (State Route Number 1) describe the EIS process, identify roles Environmental Division, APP–400, in Anchorage, Alaska. The facilities and responsibilities, and explain the 800 Independence Avenue, SW., needing improvement are part of the project schedule and key coordination Room 621, Washington, DC 20591. National Highway System (NHS) and points. A series of public meetings will Federal Aviation Administration, are designated as Interstate Highway be held in Anchorage over the course of Western-Pacific Region Office, Routes. The proposed project is the project. Formal scoping meetings Airports Division, Room 3012, 15000 identified in the adopted Anchorage will be held in Anchorage on July 29th Aviation Boulevard, Hawthorne, Metropolitan Area Transportation and 31st 2008 and an agency scoping California 90261. Solutions’ ‘‘Anchorage Bowl Long Range meeting will be held in mid-August. Transportation Plan’’ (LRTP) (2007). While the project team will take Federal Aviation Administration, Los The LRTP conducted extensive public comments throughout the development Angeles Airports District Office, involvement and studied the existing of the project, formal scoping comments 15000 Aviation Boulevard, Room transportation problems, planned should be submitted within 90 days of 3000, Hawthorne, California 90261. development patterns, and resultant this notice. Mr. Jack Gotcher, Meadows Field transportation needs in Anchorage Additional meetings and other Airport, 3701 Wings Way, Suite 300, which led to identification of the opportunities to provide input on the Bakersfield, California 93308. Highway-to-Highway project in the project will be provided as the project Questions may be directed to the plan. develops. A public hearing will be held individual named above under the The Highway-to-Highway on the draft EIS. The draft EIS will be heading, FOR FURTHER INFORMATION improvements are considered necessary available for public and agency review CONTACT. to address capacity, travel demand, and comment prior to the public

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hearing. Public notice in the Anchorage accommodations to take part because of FOR FURTHER INFORMATION CONTACT: Daily News will be given of the time a disability should notify the contact Drew Blacker, Office of Financial and place for all public meetings and person listed below. Education, Department of the Treasury, hearings. Project information can be DATES: The telephone meeting will be Main Department Building, 1500 found on the project Web site at held on Tuesday, July 29, 2008, at 2 Pennsylvania Avenue, NW., http://www.highway2highway.com. p.m. Eastern Time. Washington, DC 20220, at (202) 622– To ensure that the full range of issues Submission of Written Comments: 0887 or [email protected]. related to this proposed action are The public is invited to submit written addressed and all significant issues statements with the President’s SUPPLEMENTARY INFORMATION: In identified, comments and suggestions Advisory Council on Financial Literacy accordance with section 10(a) of the are invited from all interested parties. by any one of the following methods: Federal Advisory Committee Act, 5 Comments or questions concerning this U.S.C. App. 2 and the regulations proposed action and the EIS should be Electronic Statements thereunder, Dubis Correal, Designated directed to FHWA at the address above. E-mail Federal Officer of the Advisory Council, (Catalog of Federal Domestic Assistance [email protected]; has ordered publication of this notice Program Number 20.205, Highway Planning or that the President’s Advisory Council on and Construction. The regulations Paper Statements Financial Literacy will convene its implementing Executive Order 12372 fourth meeting on Tuesday, July 29, regarding intergovernmental consultation on Send paper statements in triplicate to 2008, via teleconference beginning at 2 Federal programs and activities apply to this President’s Advisory Council on program) p.m. Eastern Time. The meeting will be Financial Literacy, Office of Financial Issued on: July 7, 2008. open to the public. Members of the Education, Room 1332, Department of public who wish to listen to the meeting David C. Miller, the Treasury, 1500 Pennsylvania should contact the Office of Financial Division Administrator, Alaska Division, Avenue, NW., Washington, DC 20220. Education at 202–622–7881 or FHWA, Juneau, Alaska. In general, the Department will post [email protected] [FR Doc. E8–15770 Filed 7–10–08; 8:45 am] all statements on its Web site (http:// by 5 p.m. Eastern Time on July 25, 2008 BILLING CODE 4910–22–P www.treasury.gov/offices/domestic- to obtain the conference call number. finance/financial-institution/fin- education/council/index.shtml) without Capacity on the teleconference line is DEPARTMENT OF THE TREASURY change, including any business or limited and space will be distributed in personal information provided such as the order we receive requests. Those Open Meeting of the President’s names, addresses, e-mail addresses, or who attempt to register after the Advisory Council on Financial Literacy telephone numbers. The Department teleconference line has reached capacity will make such statements available for will be invited to the Department of the AGENCY: Office of Financial Education, Treasury, 1500 Pennsylvania Avenue, Treasury. public inspection and copying in the Department’s library, Room 1428, Main NW., Washington, DC, to listen to the ACTION: Notice of meeting. Department Building, 1500 teleconference in a meeting room. The SUMMARY: The President’s Advisory Pennsylvania Avenue, NW., purpose of this telephone meeting is for Council on Financial Literacy will Washington, DC 20220, on official the President’s Advisory Council on convene its fourth meeting on Tuesday, business days between the hours of 10 Financial Literacy to discuss new July 29, 2008, via teleconference a.m. and 5 p.m. You can make an agenda items, update the Council on the beginning at 2 p.m. Eastern Time. The appointment to inspect statements by work of the committees and follow-up telephone meeting will be open to the telephoning (202) 622–0990. All on issues from previous meetings. public. Members of the public interested statements, including attachments and Dated: July 3, 2008. in listening to the meeting should call other supporting materials, received are 202–622–7881 or e-mail part of the public record and subject to Taiya Smith, [email protected] public disclosure. You should submit Executive Secretary, Treasury Department. to obtain the conference call number. only information that you wish to make [FR Doc. E8–15852 Filed 7–10–08; 8:45 am] Individuals needing special available publicly. BILLING CODE 4810–25–P

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Corrections Federal Register Vol. 73, No. 134

Friday, July 11, 2008

This section of the FEDERAL REGISTER Opportunity Description heading, in the DEPARTMENT OF THE INTERIOR contains editorial corrections of previously eighth line, ‘‘(AI/AN5)’’ should read published Presidential, Rule, Proposed Rule, ‘‘(AI/ANs)’’. Minerals Management Service and Notice documents. These corrections are 2. On page 36334, in the third prepared by the Office of the Federal [Docket No. MMS–2008–OMM–0007] Register. Agency prepared corrections are column, in the sixth line from the top, issued as signed documents and appear in ‘‘c-mails’’ should read ‘‘e-mails’’ MMS Information Collection Activity: the appropriate document categories 3. On the same page, in the same 1010–0141, 30 CFR Part 250, Subpart elsewhere in the issue. column, in the first full paragraph, in D, Oil and Gas Drilling Operations, the second line, ‘‘11-IS’’ should read Extension of a Collection; Submitted ‘‘IHS’’. for Office of Management and Budget DEPARTMENT OF HEALTH AND 4. On page 36335, in the second (OMB) Review; Comment Request HUMAN SERVICES column, under the fourth bullet, in the fifth line, ‘‘DUO’’ should read ‘‘DGO’’. Correction Indian Health Service 5. On the same page, in the third In notice document E8–14893 column, in the 13th line from the beginning on page 37475 in the issue of Office of Clinical and Preventive bottom, ‘‘DNIP’’ should read ‘‘DNP’’. Tuesday, July 1, 2008 make the Services, Division of Nursing Services 6. On page 36336, in the third following correction: Nursing Program, Schools of Nursing column, under the 3. Indirect Costs On page 37475, in the first column, Correction heading, in the fifth line, ‘‘Part 11–27’’ between the first and second should read ‘‘Part II–27’’. paragraphs, the dates section did not In notice document E8–14457 7. On the same page, in the same appear. It should be included to read as beginning on page 36333 in the issue of column, under the same heading, in the follows: ‘‘DATE: Submit written Thursday, June 26, 2008 make the same line, ‘‘IIHS’’ should read ‘‘IHS’’. comments by July 31, 2008.’’ following corrections: 1. On page 36333, in the second [FR Doc. Z8–14457 Filed 7–10–08; 8:45 am] [FR Doc. Z8–14893 Filed 7–10–08; 8:45 am] column, under the I. Funding BILLING CODE 1505–01–D BILLING CODE 1505–01–D

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Part II

Department of Transportation National Highway Traffic Safety Administration

Consumer Information; New Car Assessment Program; Notice

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DEPARTMENT OF TRANSPORTATION DATES: These changes to the New Car I. Introduction Assessment Program are effective for the The National Highway Traffic Safety National Highway Traffic Safety 2010 model year. Administration (NHTSA) is responsible Administration FOR FURTHER INFORMATION CONTACT: For for reducing deaths, injuries, and [Docket No. NHTSA–2006–26555] technical issues concerning the economic losses resulting from motor enhancements to NCAP, contact Mr. vehicle crashes. One way in which Consumer Information; New Car Nathaniel Beuse or Mr. John Hinch. NHTSA accomplishes this mission is by Assessment Program Telephone: (202) 366–9700. Facsimile: providing consumer information to the public. NHTSA established the New Car AGENCY: National Highway Traffic (202) 493–2739. For legal issues, contact Safety Administration (NHTSA), Dorothy Nakama, NHTSA Office of Assessment Program (NCAP) in 1978 in Department of Transportation (DOT). Chief Counsel, Telephone (202) 366– response to Title II of the Motor Vehicle Information and Cost Savings Act of ACTION: Final decision notice. 2992. Facsimile: (202) 366–3820. You may send mail to these officials at: The 1972. Through NCAP, NHTSA currently SUMMARY: On January 25, 2007, NHTSA National Highway Traffic Safety conducts tests and provides frontal and published a notice announcing a public Administration, Attention: NVS–010, side crash, and rollover ratings and hearing and requesting comments on an 1200 New Jersey Avenue, SE., communicates the results using a five- agency report titled, ‘‘The New Car Washington, DC 20590. star rating system. With this Assessment Program (NCAP) Suggested information, consumers can make SUPPLEMENTARY INFORMATION: Approaches for Future Program better-informed decisions about their Enhancements.’’ This notice I. Introduction purchases. In turn, manufacturers summarizes the comments received and II. Summary of Request for Comments respond to the ratings by voluntarily provides the agency’s decision on how A. Frontal NCAP improving the safety of their vehicles it will improve the NCAP ratings B. Side NCAP beyond the minimum Federal safety program. C. Rollover NCAP standards. D. Rear Impact For MY 1979, when the agency began For model year (MY) 2010, the agency E. Crash Avoidance Technologies will make changes to its existing front rating vehicles for frontal impact safety, F. Presentation and Dissemination of fewer than 30 percent of vehicles tested and side crash rating programs. For the NCAP information frontal crash test program, NHTSA will would have received the top ratings of G. Manufacturer Self-Certification 4 or 5 stars for the driver seating maintain the 35 mph (56 kmph) full III. Summary of Comments 1 frontal barrier test protocol but will A. Frontal NCAP position. By comparison, for MY 2007, update the test dummies and associated 1. Impact Protocol 98 percent of vehicles received 4 and 5 injury criteria used to assess and assign 2. Test Dummies (in the Front Seating stars in the frontal NCAP rating for that a vehicle’s frontal impact star rating. For Position) same seating position. Equally impressive is that while it took almost side impact, NHTSA will maintain the 3. Injury Criteria 4. Test Speed 30 years to reach this level for frontal current moving deformable barrier test B. Side NCAP NCAP performance, the more recent at 38.5 mph (63 kmph) but will update 1. Oblique Pole Test (Test Dummies and NCAP programs, like side and rollover that test to include new side impact test Implementation Time) NCAP, have started reaching this level dummies and new injury criteria that 2. Moving Barrier Protocol (Test Speed, of safety performance at a pace that can are used to assign a vehicle’s side Test Dummies, and Injury Criteria) be measured in years rather than impact star rating. Additionally, C. Rollover NCAP decades. The agency believes that vehicles will also be assessed using a 1. Rollover Risk Model consumers continue to consider safety new pole test and a small female crash 2. Dynamic Rollover Structural Test D. Rear Impact in their purchasing decisions and are test dummy. demanding ever-increasing levels of For rollover, the agency will continue 1. Basic Information 2. Links to the IIHS safety. to rate vehicles for rollover propensity, 3. Dynamic Test Similarly, recent advances in crash but will wait to update its rollover risk E. Crash Avoidance Technologies avoidance technology offer a new model to allow for more real-world 1. Program Implementation opportunity for NCAP to further crash data of vehicles equipped with 2. Selected Technologies enhance its ability to inform consumers electronic stability control. 3. Rating System about new systems and encourage them Also for MY 2010, the agency will F. Presentation of NCAP Information Combined Crashworthiness Rating to purchase systems that NHTSA has implement a new ratings program that found to be effective in improving will rate vehicles on the presence of G. Manufacturer Self-Certification (of NCAP Results) safety. select advanced technologies and On January 25, 2007 NHTSA establish a new overall Vehicle Safety H. Other Suggestions IV. Discussion and Agency Decision published a notice outlining proposed Score that will combine the star ratings A. Frontal NCAP enhancements to the NCAP activities. In from the front, side, and rollover B. Side NCAP this notice, we requested comments on programs. C. Rollover NCAP any additional actions that the agency Finally, for the agency’s vehicle D. Rear Impact could undertake so that the program labeling program, we are announcing E. Crash Avoidance Technologies could continue to provide consumers that the side score, rather than being F. Presentation and Dissemination of with relevant safety information.2 These based only on the moving deformable Safety Information G. Manufacturer Self-Certification enhancements included new test barrier test, will be based on the dummies and injury criteria for frontal combination of the moving deformable H. Other Recommendations I. Monroney Label NCAP, the addition of a new side pole barrier test and the pole test. V. Conclusion test, new test dummies, and new injury Additionally, the agency will initiate Appendix A rulemaking to include the new overall Appendix B 1 NHTSA began using stars in model year 1994. crashworthiness rating on the Monroney Appendix C See 69 FR 61072, Docket No. NHTSA–2004–18765. label. Appendix D 2 72 FR 3473, Docket No. NHTSA–2006–26555.

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criteria for side NCAP, an overall protocol but would also encourage sponsored field operational tests.5 summary rating, and a new program to manufacturers to provide better head Research by the agency and others has promote advanced crash avoidance and pelvis protection by including the shown that consumers are generally technologies. Additionally, the notice side impact pole test and the new test unaware of these technologies or their announced a March 7, 2007 public dummies recently finalized in Federal potential safety benefits. As a result, the hearing to allow interested parties the Motor Vehicle Safety Standard (FMVSS) agency believed that NCAP should be opportunity to address the suggested No. 214 ‘‘Side Impact Protection’’ prior used to better highlight those beneficial approaches for enhancing the program. to the performance requirements being technologies to consumers and sought to Seventy-six (76) individual comments fully phased-in.4 Furthermore, the establish a new ratings program that were received in response to the notice agency proposed research that would evaluated vehicles on the presence of and the public hearing.3 Commenters focus on the assessment of the injury proven crash avoidance technologies. offered mixed responses to the various mechanisms in a fully equipped side Based on technical maturity, fleet proposals for enhancing NCAP; impact air bag fleet. The purpose of the availability, and available effectiveness however, most commenters commended research would be to evaluate how data, NHTSA identified three the agency’s initiative to reexamine the serious injuries occur in the new fleet technologies that fit these criteria. These program and supported the proposed and to develop test procedures to reflect technologies are ESC, LDW, and FCW. approaches. This notice summarizes these impact conditions. The outcome NHTSA proposed two possible comments to the January 2007 notice, of this research could lead to a new approaches and illustrated a possible the March 2007 public hearing, and barrier test protocol (which could implementation of the program with an provides the agency’s decision on how include increased test speed and A, B, C letter grade system. First, the it will proceed with changes to NCAP. different barrier characteristics). agency proposed that each of the technologies would have equal weight. I. Summary of Request for Comments C. Rollover NCAP For example, if a vehicle had only one In its notice, the agency presented To enhance its rollover program, the technology, it would receive a C; proposals to improve not only the agency indicated that it would continue whereas, another vehicle that had all program’s current front, side and tracking the rollover rate and the single three technologies would receive an A. rollover activities, but also approaches vehicle crash rate of vehicles equipped Approach two would attempt to to improve its information with regards with ESC to create a new rollover risk quantify a technology’s real-world to rear impact, and certain crash model. benefits by taking into account the target avoidance (or active safety) technologies population and anticipated effectiveness such as Electronic Stability Control D. Rear Impact of the technology to decide whether a (ESC). NHTSA also outlined alternatives Currently, NHTSA does not provide particular type of technology would be given more weighting than another and to enhance the presentation and consumer information on rear impacts. thus prompt a higher score. For dissemination of safety information to However, NHTSA is aware of recent example, in this scheme, if ESC was consumers, and solicited feedback for research suggesting that consumers are found to be more effective than lane additional considerations that would concerned about rear crashes. As such, departure, a vehicle equipped only with allow NCAP to remain effective and the agency proposed two approaches. ESC could receive a B versus a vehicle relevant in improving vehicle safety. First, NHTSA proposed that it could equipped only with lane departure provide consumers with basic A. Frontal NCAP warning which would receive a C rating. information on rear crashes such as safe NHTSA proposed three approaches to It was further stated that this second driving behavior, proper adjustment of enhance the frontal NCAP. The first approach could be expanded into a head restraints, real-world safety data by approach was to maintain the current more comprehensive performance-based vehicle classes, and links to the 35 mph (56 kmph) test protocol with a crash avoidance rating. As the Insurance Institute of Highway Safety 50th percentile male Hybrid III dummy, technologies evolved and as the agency (IIHS) rear impact test results. Second, but to account for injuries to the knee/ gathered more information related to as a longer term approach, the agency thigh/hip (KTH) complex. This would various versions of these technologies proposed that a dynamic test, which be accomplished by including a new and their associated safety effectiveness, addresses those injuries not covered by injury criterion into the formula used to NHTSA proposed that a safety score the agency’s current standards, could be calculate the frontal NCAP rating for the (i.e., star rating) on individual investigated and incorporated into the driver and front passenger seating technologies could then be developed ratings program. positions. Second, while keeping the (e.g., different version of ESC might test protocol the same, the agency E. Crash Avoidance Technologies yield different performance results and considered determining whether injury thus a different star rating). Technologies such as ESC, forward measures obtained below the knee using collision warning (FCW), lane departure F. Presentation and Dissemination of the Denton or Thor-Lx dummy legs are warning (LDW) and crash mitigation NCAP Information predictive of real-world injuries. Last, systems have been developed and are the agency considered evaluating Combined Crashworthiness Rating being offered in the current vehicle vehicles based on a lower test speed. Several NHTSA-sponsored research fleet. Some of these technologies have reports and consumer surveys, as well B. Side NCAP shown effectiveness in reducing the as a Government Accountability Office number of relevant crashes in To enhance its side impact safety and a National Academy of Sciences Department of Transportation (DOT)- ratings, the agency presented two review of NCAP, have all pointed to the approaches for consideration. NHTSA public’s desire for a summary safety proposed continuing to rate vehicles 4 73 FR 32473, Docket No. NHTSA–2008–0104. rating. Similarly, other consumer On June 9, 2008 the agency responded to petitions using the moving deformable barrier test for reconsideration of the final rule, changing the information programs around the world effective date of the pole test. Now, with certain 3 This count does not include duplicative or exceptions, all vehicles have to meet the upgraded 5 See 72 FR 3475, Docket No. NHTSA–2006– multiple comments from the same source. pole test by September 1, 2014. 26555.

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such as the IIHS, Japan NCAP, and be allowed to conduct and publish their narrow-object NCAP test could have an EuroNCAP use summary ratings that own NCAP ratings via a self- important impact on real-world vehicle combine their respective certification process. We indicated that crashworthiness, and would give crashworthiness tests. The agency such an approach would be one way to consumers a wide range of results to proposed two summary crashworthiness improve not only the timeliness of inform their purchasing decisions. rating concepts. In both concepts, the NCAP ratings but also to increase the Subaru suggested that NHTSA should existing rollover rating was not included number of vehicles rated by the agency. study and possibly propose a frontal in the calculation of the overall pole test for inclusion into NCAP if the summary rating, and star rating III. Summary of Comments frequency of frontal crashes with narrow boundaries would have to be developed This section provides a brief summary objects is high. However, General for both individual crash tests and the of the seventy-six (76) comments Motors North America (GM) asserted overall summary rating. submitted to the docket by vehicle that a pole test is unlikely to result in The first approach computed the manufacturers, safety advocates, public significant change or further overall crashworthiness rating by first health groups and the general public in improvement in structural stability and averaging the driver and right front response to the notice and the public resultant injury reduction. They stated passenger dummy injury results from hearing.6 It should be noted that that research in this area may yield only the frontal crash mode into a single star comments unique to the public hearing limited or incremental gains in injury rating. The same would be done for the are stated as such. mitigation, and that the public interest seating positions in the side crash mode is likely to be better served by to compute the overall side crash rating. A. Frontal NCAP channeling resources into areas that To compute the overall crashworthiness Comments regarding NHTSA’s frontal could produce greater societal benefit. rating, the overall frontal and the overall program are grouped into four 2. Test Dummies (in the Front Seating side impact performance would be categories: Impact Protocol, Test Position) combined by using weighting factors Dummies (in the Front Seating obtained from real-world data (i.e. the Position), Injury Criteria and Test With regard to test dummies, the National Automotive Sampling System Speed. Alliance stated that test dummies in (NASS)). Each individual total (overall frontal NCAP should be the same as front and overall side) would be 1. Impact Protocol those in FMVSS No. 208. Additionally, weighted by that crash mode’s The Alliance of Automobile GM, AORC, Consumers Union and the contribution to the total injuries Manufacturers (Alliance), Automotive Alliance supported the use of the 5th occurring in the real-world. Occupant Restraints Council (AORC), percentile female Hybrid III dummy in The second approach computed the Toyota Motor North America, Inc. the right front passenger position. GM overall crashworthiness rating by (Toyota), BMW of North America provided NASS data which suggested normalizing the seating positions for (BMW), Fuji Heavy Industries USA, Inc. that small females were over- each individual crash mode (front and (Subaru) and Volkswagen of America, represented (with regard to serious side) using the Injury Assessment Inc. (VW) supported the retention of the injuries) in the right front passenger Reference Values (IARVs) established current frontal crash test protocol at 35 seating position. GM also suggested that for that dummy, body region, and crash mph (56 kmph). Consumers Union and in the future, the 5th percentile female mode. Using the NASS data, these Public Citizen suggested adding an dummy should be used in both seating normalized values would then be offset frontal crash test rating, which positions to optimize safety. AORC multiplied by the occurrence of that Public Citizen believed would be far asserted that the substitution of the 5th injury in the real-world. Body injury more useful in assessing the structural female for the 50th percentile male regions that are coded by NASS but are integrity of different vehicle models. would demonstrate a broader not measured by the dummy and/or not Likewise, Toyota also encouraged population range of protection since selected by NHTSA for inclusion in the NHTSA to investigate ways to include some data has been shown which rating would be equally distributed information on offset collision suggests that the weighted frequency of among the remaining body regions. conditions in its NCAP program. Toyota serious and fatal injuries to women is greater than to men in the right front Presentation of Safety Information explained that their investigation of National Automotive Sampling System passenger seating position. As the consumer’s use of the Internet Crashworthiness Data System (NASS– Furthermore, Consumers Union for vehicle safety information has CDS) data showed that an asserted that the agency should grown, so has the need to consolidate overwhelming majority of frontal investigate using the 5th percentile and better present NCAP vehicle safety crashes occur in either the full overlap female and 95th percentile male information to consumers on http:// or offset condition. They believed that dummies to evaluate NCAP tests for all www.safercar.gov. The four approaches vehicle performance assessed in the sizes of vehicle occupants. Subaru proposed by the agency were: (1) offset condition should yield relevant supported the continued use of 50th Developing other topical areas under the improvements in safety technology and percentile adult male dummies in both Equipment and Safety section of the provide considerable benefit. front seating positions indicating that Web site; (2) redesigning the Web site to IIHS and Subaru recommended the this was more representative of real- improve organization; (3) improving addition of a frontal pole test to address world occupants. Subaru also asserted search capabilities on the Web site; and, significant injuries resulting from that additional tests with other (4) combining agency recall and ratings impacts with narrow objects. IIHS dummies, such as the 5th percentile database information. asserted that offset tests more closely adult female, should be done only if well supported by real-world data. G. Manufacturer Self-Certification simulate impacts with narrow objects than do full-width tests, and that a In addition to NHTSA’s proposed 3. Injury Criteria suggestions in the notice the agency also 6 These submissions are available at http:// Most vehicle manufacturers agreed sought comment at the public hearing www.regulations.gov in Docket No. NHTSA–2006– that NHTSA should develop and on whether or not manufacturers should 26555. incorporate a KTH injury criterion into

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the NCAP frontal rating. They noted that in FMVSS No. 208. Furthermore, VW At the public hearing, Consumers a KTH assessment would drive vehicle believed that these test devices must be Federation of America (CFA) and the countermeasures that could mitigate validated, and the applicable injury Center for Auto Safety (CAS) suggested lower leg injuries and also yield criteria and rating must be verified for that NHTSA increase test speeds and important information relevant to correlation with real-world safety. challenge manufacturers to post the vehicle design. Likewise, adding KTH Some commenters suggested that all highest speed at which their vehicles and/or lower leg injury criteria to the injury criteria incorporated in FMVSS are tested, in order to differentiate NCAP rating protocol could expand the No. 208 (beyond head injury criteria and amongst the performance of vehicles. usefulness of the NCAP system by chest acceleration criteria) should also However, the Alliance, Consumers addressing the societal cost of be included in frontal NCAP. Union, AIAM and Subaru opposed a Abbreviated Injury Scale (AIS) 2+ Specifically, Honda, Ford, GM, the higher speed test for frontal NCAP. The injuries. The Alliance, Autoliv, Alliance, and Autoliv supported the Alliance stated that field data did not Consumers Union and IIHS also inclusion of a chest deflection criterion show the need for higher test speeds. supported NHTSA’s efforts to into the frontal NCAP rating based on AIAM and Consumers Union did not incorporate a KTH injury criterion into NASS–CDS data indicating a substantial believe that increasing crash test speeds the frontal program. However, IIHS number of injuries to ribs and internal would benefit the overall safety of urged the agency to concentrate its organs resulting in AIS 3+ or higher occupants; but rather, it could cause research tests on serious injuries and severity injuries. However, Honda stated vehicles to become stiffer. Subaru fatalities in frontal impacts to encourage that the current chest deflection asserted that a higher speed test is not more protective vehicle design. calibration procedure may not be representative of the vast majority of Additionally, Autoliv stated that appropriate to assure that chest fatal crashes, does not enhance NCAP’s although a reduction in KTH injuries deflection measurements are accurate consumer information goals, and risks would have a significant impact on enough to provide useful data. GM and increasing vehicle aggressiveness. societal cost, they believed that it would the Alliance recommended including a have little effect in reducing fatalities. chest compression criterion into frontal B. Side NCAP Nissan North America (Nissan) stated NCAP. The Alliance urged NHTSA to Comments regarding NHTSA’s side that the agency should consider a KTH conduct research on neck (tension) program are divided into the following assessment only after further study is injury criteria before including it into categories: Oblique Pole Test (Test conducted. Instead, Nissan urged frontal NCAP. However, GM suggested Dummies and Implementation Time), NHTSA to harmonize knee and thigh that the agency add neck injury criteria Moving Barrier Protocol (Test Speed, injury values with those required in to frontal NCAP since these criteria are Test Dummies, and Injury Criteria), and Japanese and European regulations. already measured by the Hybrid III Side NCAP Research. Likewise, the Association of dummies and included in FMVSS No. International Automobile Manufacturers 208. 1. Oblique Pole Test (Test Dummies and (AIAM) did not believe that the agency Implementation Time) 4. Test Speed should move expeditiously to include a GM, Subaru, Toyota, the Alliance, and KTH criterion in the current frontal With regards to adopting a lower test Autoliv agreed with the agency’s NCAP program since the agency had speed, the Alliance, GM and Volvo proposal to incorporate an oblique pole identified crashes of lower test speed as agreed with NHTSA’s analysis and test into NCAP. However, with regards the primary concern regarding leg supported the agency’s proposal to to adopting the oblique pole test prior injuries. They recommended that conduct more research on lower test to the completion of the FMVSS No. 214 NHTSA present the analysis and results speeds. However, VW questioned pole test phase-in, BMW, Ford, Toyota, of their KTH research for public whether lower speed crashes and the Alliance, asserted that such comment prior to including a KTH represented a greater risk of occupant action would be premature, and these criterion in the frontal program. injury than the current NCAP test commenters suggested that NHTSA For lower leg assessments, several procedure. Therefore, VW as well as the adopt the test after the oblique pole test commenters suggested that additional Alliance believed that an additional test had been fully phased-in. Furthermore, research was needed to determine in frontal NCAP would add significant Subaru suggested that 3 years be whether injury measures obtained expense and strain on available allowed after the agency announced a below the knee were predictive of real- resources without any commensurate new test before rating vehicles under the world injury. GM noted that adding a advantages or benefit. new test protocol. femur load injury criterion to frontal Subaru asserted that they did not Toyota explained that they NCAP would drive many of the same support adding low speed bumper tests understood NHTSA’s intention to use vehicle countermeasures that would to frontal NCAP since those tests would an early introduction of the pole test to mitigate lower leg injuries. overlap with existing IIHS tests. drive the installation of advanced head With regards to what Two individual commenters, Mr. protection systems (like curtain airbags), anthropomorphic test device (ATD) Dainius Dalmotas and Dr. Harold Mertz but they believed that significant could be used for these new criteria stated that a full vehicle crash test benefits in head protection were already (KTH and lower leg), Honda specifically designed to promote enhanced chest being realized from the introduction of stated that a KTH assessment would be protection in low-to-moderate speed curtain air bags, which was driven by possible using the Denton dummy leg. frontal crashes would be most industry’s commitment to the industry For injuries to the lower leg (below the promising since the vast majority of voluntary compatibility requirements.7 knee), Honda, Subaru, Nissan, and serious and fatal injuries among belted Volvo Cars of North America, LLC drivers occur at collision speeds of 25 7 IIHS and the Alliance created a voluntary (Volvo), suggested that the agency adopt mph (40 kmph) or less. They also agreement wherein automotive manufacturers the Thor-Lx legs in the future. The asserted that incentives to promote agreed to improve occupant protection in front and side crashes involving cars and light trucks. For Alliance did not support the improved safety in low-to-moderate front-to-side impacts, most automakers agreed to introduction of either the Denton or speed frontal impacts were lacking and design their vehicles to meet the head injury Thor-Lx legs unless they were included could be addressed through NCAP. Continued

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Therefore, Toyota recommended additional side impact protection. frequently injured occupant type at the additional investigation into whether Nissan also believed that incorporating driver position is an adult male. there are merits of an early introduction the pole test into NCAP is unnecessary Autoliv asserted that the ES–2re of an oblique pole test into NCAP. to encourage head protection in new dummy should be used for the front Honda recommended adding to the vehicles. seating position in both the oblique pole existing side impact test by introducing IIHS stated that the current NCAP and MDB tests, as this dummy a second side impact test that is similar barrier test did not fully address the mix represents the largest percentage of front to the current IIHS moving deformable of vehicles on the road and that the seat occupants. They also recommended barrier (MDB) test.8 Honda suggested agency needed to improve the existing the SID–IIs dummy for the rear seating that this would extend the coverage of side impact barrier. IIHS suggested position to provide information on NHTSA’s side impact testing, be more giving greater priority to adopting or protection for older children and small representative of real-world crashes, and modifying the IIHS side impact barrier adults seated in the rear. GM also help to provide a more realistic rather than incorporating a new oblique recommended the SID–IIs dummy for assessment of a vehicle’s pole test. However, GM asserted that the the rear seating position because more crashworthiness in these types of two- pole test is structurally more frail persons tend to sit in the rear, the vehicle collisions. challenging than the IIHS MDB test, and SID–IIs dummy is tuned for frail If the agency went forward with an that the IIHS MDB test and the pole test occupants, and placement in the rear oblique pole test, Subaru recommended will not necessarily drive installation of will import safety improvements across a side impact assessment based on two the same air bag solutions. the range of occupants. tests (the oblique pole test and IIHS’s 2. Moving Barrier Protocol (Test Speed, 3. Side NCAP Research MDB test) with head injury criteria and Test Dummies, and Injury Criteria) the SID–IIs dummy, as long as the As a longer term approach, the agency results could be combined into a single NHTSA proposed a new side NCAP suggested research into the moving rating. BMW and the Alliance suggested barrier test protocol that would include barrier test protocol to address injuries that the 5th percentile female SID–IIs new dummies and additional injury and fatalities that might occur in dummy be used for the driver position criteria. The Alliance supported the vehicles equipped with curtain and side in the oblique pole test. BMW asserted maintenance of the current barrier test impact air bags. The agency indicated that the smaller SID–IIs dummy is most but they suggested a revised, lower test this research could lead to a new appropriate for determining the speed of 33.5 mph (54 kmph). barrier, an increased barrier test speed, geometric coverage area required for a With regards to the incorporation of and a reevaluation of the impact curtain airbag. The Alliance believed new dummies into the side MDB test, configuration. that it is appropriate to test only with the Alliance, Subaru, Honda, Nissan, The Alliance, AIAM, Honda and the 5th percentile female dummy in the Volvo, and AIAM proposed the Subaru agreed that NHTSA should front seating position because this is a incorporation of WorldSID into NCAP. analyze real-world side impact crashes very severe test condition, and it would Specifically, Volvo and the Alliance for vehicles with side curtain airbags. serve to meet the intent of NCAP while suggested that the WorldSID dummy However, the Alliance recommended minimizing additional test burdens on should be introduced in FMVSS No. 214 that the agency and automotive industry NHTSA and the automotive industry. and NCAP simultaneously. Honda should develop more experience with Honda, Nissan and VW did not stated that the WorldSID dummy the new pole test and test dummies support the inclusion of an oblique pole provides excellent biofidelity, and does before considering any increase in test test into side NCAP. Honda believed not present problems with rib guide speeds. In addition, the Alliance that introducing an oblique pole test shape that the ES–2re dummy appears asserted that future research should would be a temporary measure until the to have based on their evaluation. AORC evaluate whether it would be beneficial test was fully phased-in as a believed that the current test dummy for NCAP to harmonize with the requirement for FMVSS No. 214. To does not adequately address head existing IIHS barrier. comply with the requirements of injuries, and they encouraged NHTSA to Toyota supported additional research FMVSS No. 214, the head protection use either EuroSID–2 and/or the SID–IIs efforts to gain a better understanding of benefits of the oblique pole test would side impact dummy. the potential for and the necessity of already have been realized in every Volvo recommended that the changes to the test device and vehicle, so there would be little dummies and injury criteria for the configuration for vehicles equipped practical benefit to consumers as a NCAP side barrier test procedures be the with side airbags. Furthermore, Toyota result of temporarily including such a same as they are for FMVSS No. 214. stated that questions remain relating to test in NCAP. VW and Nissan, similar Volvo supported the addition of head barrier characteristics, injury criteria to Toyota, stated that automobile injury criteria in the NCAP evaluation and appropriate ATDs that should be manufacturers were already committed for the side barrier; however, they researched from relevant field data.9 to front-to-side impact protection, and would prefer that the NCAP criteria Autoliv recommended that NHTSA that the addition of a side impact pole limits are set more stringent in order to research increasing the test speed and test would provide no added incentive encourage manufacturers to exceed the develop a single test that would assess for the manufacturers to implement performance standards outlined in the both the head and thorax injury legal requirement. BMW recommended protection systems installed in newer performance requirements of NHTSA’s FMVSS No. that NHTSA use the ES–2re dummy for vehicles. Autoliv also suggested that the 201 side-pole test or the IIHS moving deformable the driver position in the MDB test adoption of the WorldSID dummy barrier test. By September 1, 2007, at least half of would be suitable if incorporated into all new passenger vehicles would meet one of the because the SID–IIs dummy is already two requirements, and by September 1, 2009 model included in the MDB test conducted by Part 572 and FMVSS No. 214. year, all new passenger vehicles would meet the IIHS, and the biofidelity of the SID–IIs head injury requirements of the Institute’s moving dummy in these types of impacts is well 9 In particular, Toyota recommended continued deformable barrier test. understood. GM also suggested the ES– investigation into previously identified concerns 8 This test would represent an SUV to subject with the performance of the SID–IIs upper arm, vehicle crash (IIHS Side Impact Crash Evaluation 2re dummy for the driver position since which they believed was not biofidelic and affected test procedure—SICE). the most frequent occupant, and most the thoracic rib response.

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Additionally, Delphi opposed releasing (ARCCA) urged the agency to consider consumer education that included a new regulation under FMVSS No. 214 a dynamic test to assess body structure, material such as safety tips and safe and then promoting a different set of seat belt design (including pretension), driving practices. barrier protocols, dummy types and side curtain airbags, roof strength, door injury metrics for side NCAP evaluation locks and retention, and the retention of 2. Links to the IIHS since that decision could cause window glazing. In particular, Public The IIHS endorsed the agency’s misdirection for original equipment Citizen believed that a rollover NCAP proposal and offered their head restraint manufacturers and suppliers. rating should be based on a vehicle’s evaluation information for posting on ability to resist rollover and to protect C. Rollover NCAP occupants in a rollover crash. They the agency’s Web site. Toyota believes Comments regarding NHTSA’s suggested a rating that included ejection that the IIHS results are only one way rollover program are grouped into the as a consideration since this would to assess rear impact performance, and following categories: Rollover Risk provide valuable information about a thus the agency should be cautious and Model and Dynamic Rollover Structural vehicle’s ability to prevent death or thorough when determining what rear Test. serious injury in a rollover crash. impact evaluation should be part of a future NCAP evaluation. They also 1. Rollover Risk Model Additionally, the rating should measure rollover propensity, as well as stated that ample consideration should Most commenters supported the crashworthiness measures of be given to passive and active head development of a new rollover risk performance in a rollover crash. restraint concepts in order to maintain model. Several commenters agreed that The Center for Injury Research (CIR) benefits from all design types. real-world crash data was necessary to recommended that an NCAP rollover The Alliance felt that NHTSA’s develop an effective rollover risk model. test be dynamic and somewhat more proposal did not seem consistent with Specifically, the Alliance, AIAM, the severe than a dynamic compliance the principle of the Federal government National Automobile Dealers standard. According to CIR, a dynamic independently generating all NCAP Association (NADA), and VW each test for use as both a safety compliance commented that NHTSA should collect standard and as an NCAP test can and data. Rather, they advocated that the new crash data for rollover NCAP. In should be developed simultaneously agency should investigate further the particular, the Alliance and Ford with action on the roof crush standard. injury mechanism of whiplash and then recommended that the agency collect Moreover, CFA and CAS recommended choose which responses to evaluate crash data on both ESC and non-ESC adding a rollover test with comparative based on biomechanics. Similarly, GM equipped vehicles to develop a new roof crush tests, while IIHS suggested discouraged NHTSA from implementing rollover risk model that better describes that NHTSA should conduct additional this option. According to GM, links to rollover risk for all vehicles, but also research on roof crush. Bidez and the IIHS Web site might imply that accurately reflects the differences Associates stated that a meaningful NHTSA has given full endorsement of between ESC and non-ESC vehicles. rollover crashworthiness test must IIHS methodology and interpretations, Toyota believed that the update to include roof deformation, seat belt and some consumers may even rollover NCAP should reflect real-world performance, door opening, and conclude that IIHS is a government benefits of ESC on rollover risk, and that window breakage. They emphasized agency. the rollover rating should be combined that protection should be assessed for (with advanced technologies) into an front and rear passengers, adults and 3. Dynamic Test overall crash avoidance rating. AIAM children, and that the Jordan Rollover The Alliance believed that NHTSA suggested that NHTSA consider System (JRS) holds great promise. should first evaluate potential adjusting a vehicle’s rollover risk rating Conversely, the Alliance, Ford and effectiveness and safety benefits prior to to reflect the safety benefits of ESC or Nissan opposed the use of JRS in NCAP. incorporating a rear crash rating into adopt some other means of The Alliance commented, and Ford and NCAP. Consumers Union stated that communicating those benefits to Nissan stated at the public meeting that rear impact whiplash injuries are consumers. there has been no JRS tests conducted debilitating to those involved and cause Recognizing that since such a data with an instrumented dummy and a large cost to society. Consumers Union collection and analysis cannot be therefore, the JRS test results cannot be completed in the near term, Ford, the related scientifically to the real-world recommended that NHTSA look at Alliance and Volvo suggested that in the risk of injury in a rollover crash. IIHS’s work on rear impact testing to near term, an additional rollover NCAP determine whether developing NCAP star should be awarded to those vehicles D. Rear Impact ratings for rear impact results would be equipped with an ESC system to Comments regarding NHTSA’s rear cost effective. Public Citizen suggested recognize the benefits of ESC. impact NCAP activity are divided into that the agency develop a rear-impact Specifically, the Alliance recommended the following categories: Basic crash NCAP rating, especially at speeds that NHTSA provide additional Information, Links to the IIHS, and of 35 to 40 mph (56 to 64 kmph) to information in the form of a footnote on Dynamic Test. improve rear-impact occupant the agency’s Web site and in the Safer 1. Basic Information protection and seat back strength. Car brochure that explains the benefits Furthermore, ARCCA stated that rear of ESC and why these benefits warrant Commenters presented similar views impact testing for fuel integrity should an additional star. on how NHTSA should provide be utilized, and that this type of testing consumers with basic information 2. Dynamic Rollover Structural Test would enable the agency to assess concerning rear impact crashes in an occupant kinematics and interactions in Some commenters encouraged NCAP publication. GM, Toyota, Subaru rear impacts. NHTSA to develop a test for structural and VW supported the inclusion of integrity to enhance rollover NCAP. information on the proper adjustment Nissan recommended that NHTSA Specifically, Consumers Union, Public and utilization of head restraint harmonize with the global technical Citizen and ARCCA Incorporated systems. Additionally, GM supported regulation (GTR) dynamic test

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procedure.10 GM stated that the each function of a particular system has potential benefits could be assessed, and development of a dynamic test by from the driver’s point of view, and they could be included in the initial NHTSA should be considered only after include a clear explanation of the implementation of a crash avoidance recent revisions to FMVSS No. 202 are actions the system can take to enhance NCAP. GM felt that limiting crash assessed. According to GM, if the safety. Honda, along with Delphi, avoidance technologies to the three regulatory changes are shown to be suggested the development of identified by the agency would effective in mitigating injury, a rear assessment-weighting coefficients unnecessarily limit the potential safety impact NCAP could be better directed derived from a system’s expected benefits to consumers. toward areas not fully addressed by the benefits and the frequency of the crash current regulation. Similarly, while type (using appropriate U.S. databases) 3. Rating System Subaru did not support new that the system is supposed to address. a. Cumulative Rating (NHTSA’s requirements for FMVSS No. 202a in the BMW suggested a program that would Approach 1) accomplish the agency’s goals without short term, they asserted that NHTSA There was little support for NHTSA’s over-promising consumers on expected needs to educate consumers on the proposed Approach 1. In the short term, performance and avoid crediting proper use and adjustment of head only Nissan supported a simple systems prematurely. They suggested a restraints. However, Subaru believed cumulative rating whereby each priority that in the long term, NHTSA should program that would differentiate technology would be weighted the focus on the study of whiplash-type technologies with real-world same. Both the Alliance and GM were injury mechanisms and applicable effectiveness from those whose opposed to this approach. GM believed countermeasures. effectiveness numbers were generated by some other means. They also that a cumulative rating would not E. Crash Avoidance Technologies suggested that NHTSA and discriminate among the three Comments regarding NCAP manufacturers collaborate on ways to technologies, and they would prefer that information on crash avoidance educate consumers on emerging NHTSA weight appropriately safety- technologies are grouped into three technologies with promising capabilities enhancing features based on their categories: Program Implementation, and proven benefits. relative benefits. The Alliance stated Selected Technologies, and Rating Mercedes-Benz (Mercedes) that the effectiveness of the selected System. recommended that NHTSA work with technologies was not equal, and the automotive industry before providing equal weighting would 1. Program Implementation developing crash avoidance ratings. To significantly mislead the consumer as to Most commenters encouraged NHTSA develop future ratings they, along with their relative safety benefits. to implement a new component into Continental Automotive Systems, Rather than a star rating or the use of NCAP to rate vehicles on the presence supported the idea of creating an a cumulative rating, BMW suggested a of crash avoidance technologies. They advisory panel that represents the ‘‘thumbs up’’ rating system to assist agreed that such a program would help viewpoints of all manufacturers consumers in quickly and intuitively educate consumers about these competing in the U.S. market. distinguishing among technologies on technologies and encourage Nissan agreed with the agency’s the basis of maturity. BMW believed manufacturers to include them in more desire to implement this new program. that this approach would deliver to vehicles. According to Ford, the first They also stated that the agency should consumers two levels of information: step would be to identify promising identify immediately its priority which technologies have the potential technologies with measurable real- technologies through a press release, on for success and which technologies have world safety benefits. Next, those items the NCAP Web site, through the a history of success. Furthermore, BMW must be assessed using developed ‘‘Buying a Safer Car’’ brochure, and on felt that this approach would reduce the performance based metrics, and finally, each vehicle’s NCAP summary Web need for NHTSA to research, analyze the assessments should be used to page. and document the actual benefits of a develop crash avoidance NCAP ratings IIHS and NADA were not convinced technology. Mercedes believed that that balance rating flexibility with of the need for NCAP crash avoidance NCAP should issue publications that stability. ratings at this time. IIHS suggested that would rank the merits of emerging GM emphasized an overarching NHTSA should not rate vehicle crash technologies in a manner similar to that principle that crash avoidance NCAP avoidance technologies, since the used in the IIHS status reports, and that should be biased toward including agency cannot currently identify which NHTSA should communicate with the features that have a high likelihood of systems are most effective. industry so that public safety messages improving safety. GM suggested further could be coordinated with industry that the agency consider a wording 2. Selected Technologies advertisements. revision, perhaps to ‘Collision Nissan and Delphi agreed with the Avoidance and Post-Crash Safety three technologies selected by the b. Effectiveness Rating (NHTSA’s (CAPS)’ NCAP so that a technology such agency. However, GM and Toyota Approach 2) as Automatic Collision Notification believed that there were additional Nissan, in the long term, along with could be considered and included. crash avoidance technologies that Toyota, Volvo, Public Citizen, AORC, Honda encouraged NHTSA to should be promoted because they would the Alliance, AIAM and GM favored the consider a program that would define provide safety value to consumers. For agency’s proposed Approach 2 of the various crash avoidance brevity, we chose not to list them all in establishing an effectiveness rating for technologies. They stated that these this document, but they included such crash avoidance technologies. Toyota, definitions should be based on the effect things as daytime running lights, however, believed that it would be ideal backover prevention technology, and to develop information related to each 10 See http://www.unece.org/trans/doc/2007/ advanced collision notification. GM new technology’s safety potential and to wp29/WP29-143-23r1e.doc. This is an agreement to begin work on Phase 2 of this GTR, which will further believed that there were data for establish a ‘‘Graduated Comprehensive analyze a revised dynamic test procedure some of these crash avoidance Crash Avoidance Rating System’’ incorporating the BioRID–II dummy. technologies and methods by which concept. They also recommended

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further study to expand the list of Honda supported a combined could compromise NHTSA-sanctioned technologies beyond ESC, lane crashworthiness rating that covers a vehicle ratings because of results departure warning and forward collision wide variety of real-world collisions. obtained through spot-checking warning to include systems such as rear Honda recommended compatibility (presumably conducted by NHTSA). pre-collision preparation/warning, testing that assesses performance in Bidez and Associates, Consumers Union emergency stop signal, blind zone alert, crashes between two vehicles with and Public Citizen urged NHTSA to vehicle-to-vehicle and vehicle-to- different geometries and/or weights. consider a manufacturer self-certifying infrastructure communications. Further, they recommended weighting process in which the industry would coefficients for each region of the crash test and rate its own vehicles and F. Presentation of NCAP Information test dummy, representing specific types undergo spot checking of their test Comments regarding the presentation of injuries, based on real-world crash results by NHTSA. According to these and dissemination of NCAP focused and injury data. commenters, the benefit of such a mainly on a combined crashworthiness The Alliance generally supported the program would be to disseminate NCAP rating. A few commenters offered concept of a combined crashworthiness test information on newly-introduced suggestions on the dissemination of rating. They believed that it is possible vehicles more rapidly than under the NCAP information. NADA suggested to combine the different body regions current system. that NHTSA develop, maintain and into a single star rating for both frontal H. Other Suggestions make available a database of non-agency and side. However, they noted that the sources of credible vehicle safety frontal NCAP ratings are vehicle-weight In addition to the approaches that information. The CAS and CFA dependent while the side NCAP ratings NHTSA had proposed to further suggested that the agency implement are generally weight independent. Thus, enhance its NCAP crashworthiness and additional and more sophisticated the Alliance asserted that a combined crash avoidance activities, commenters systems that deliver safety information crashworthiness rating would be submitted other recommendations to the at the point of sale. They believed this comparable only within vehicle weight agency. These comments on other information should be beyond the class. Moreover, AIAM urged NHTSA to possible approaches to improving NCAP agency’s new NCAP labeling program ensure that a single rating is meaningful are grouped into the following (no examples were given). in terms of real-world performance to categories: Child Restraints and Rear drive safety improvements in all crash Seat Testing, Lighting, and Pedestrians. Combined Crashworthiness Rating modes. They recommended that 1. Child Restraints Most responders to the NCAP notice changes to the star system be considered expressed support for an overall only if based on appropriate research Public Citizen suggested that NHTSA involving consumer surveys or focus crashworthiness rating that combined incorporate a dynamic child restraint groups, and not on intuitive judgments the results from all the crash modes system (CRS) test into NCAP in all crash about what data presentation is most (front and side) tested. However, IIHS modes (including frontal, rollover, side effective. cautioned that an all-encompassing and rear crashes). They recommended Public Citizen supported a single that a six-year old Hybrid III dummy be single rating may allow some poor rating if it were weighted with respect performance qualities to be hidden restrained in a backless booster and a to saving lives and preventing injuries. 5th percentile female Hybrid III dummy under the umbrella rating. Therefore, They also suggested that NHTSA use a they urged NHTSA to provide be placed in a 3-point belt in both rear- letter grade rating system instead of outboard seating positions. ARCCA consumers with all of the scores in each ‘‘stars.’’ Volkswagen believed that the crash mode to allow them to choose recommended adding instrumented agency should consider a single crash child dummies to the outboard- which vehicle to purchase. rating only until a crash avoidance Additionally, Delphi, Public Citizen and designated seating positions in the rear NCAP rating grows in substance and to investigate issues associated with Bidez and Associates noted that while a scope. Delphi expressed that a single overall crashworthiness rating accommodations and crash performance combined crashworthiness rating would of rear-seated occupants resulting from would simplify information for obscure safety benefits; rather, they consumers, it could also confuse cargo. supported a Euro NCAP style point Bidez & Associates asserted that the consumers if not based on sound system and recommended that key science. agency should build upon and leverage performance-based assessments be the experience of EuroNCAP in child Toyota believed there is merit to presented as the primary information protection to force design innovation in combining ratings for crashworthiness and that feature-based indicators be rear seat safety for six to twelve-year evaluations to provide the consumer presented as of secondary importance. olds.11 They believed there was a need with a comprehensive summary of the to enhance frontal impact protection of crash performance of the vehicle in G. Manufacturer Self-Certification (of nine to twelve-year old children who front and side impacts. They NCAP Results) are properly belted in the rear seat. recommended weighting the injuries With regards to manufacturers Their research for restrained nine to and assessment in each impact providing their own NCAP test results, twelve-year old children suggested that condition by the distribution of serious GM and Toyota supported the rear seat occupants had a risk of serious injuries (AIS3+) and fatalities. After implementation of a type-approval injury 78 percent higher than that of determining the weighting factors for program wherein NHTSA would front seat occupants. They estimated each injury, each impact configuration oversee NCAP testing conducted by the that the overall injury rate for all should receive similar ‘‘Field Relevance manufacturer. GM felt that NHTSA’s restrained nine to twelve-year olds in all Weighting’’ based on frequency, severe attendance (or the presence of a NHTSA crash types was 38 percent higher in the injury risk, and occupancy. Because of representative) would allow appropriate rear seat than in the front seat. As such, the small number of fatalities in NASS, scrutiny of the testing and ensure Toyota suggested exploring FARS consumer confidence in such a program. 11 The commenter did not provide specific detail augmented with the Multiple Cause of Additionally, they strongly discouraged as to what design innovations have occurred as a Death (MCOD) database. implementation of any program that result of the EuroNCAP activity.

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Bidez & Associates recommended that present among belted occupants in the pedestrian safety. Public Citizen NHTSA immediately warn consumers, rear seat. encouraged NHTSA to issue a retract its message to parents about Individual commenter Mr. Todd pedestrian NCAP test and an placing children in the rear, and force Saczalski recommended rear seat testing accompanying safety standard. They the automobile industry to upgrade the with adult and child dummies and child also challenged NHTSA to follow the safety of the rear occupant area of the restraints to assess the difficulty exiting lead of the rest of the world by taking existing and future vehicle fleet. the vehicle and to examine injuries due a far more aggressive stand against the Subaru, GM and the Alliance opposed to seat back failure. The Children’s dangers vehicles pose to pedestrians implementation of a CRS test into Hospital of Philadelphia (CHOP) stated and to raise the bar for pedestrian safety NCAP. GM asserted that there can be no that the agency should place an older in its discussions for a Global Technical meaningful dynamic NCAP test for CRS belt-restrained dummy, such as the six Regulation (GTR) on pedestrian safety. or ten-year old Hybrid III child dummy, until there is a meaningful way to tie a IV. Discussion and Agency Decision CRS NCAP performance rating to real- in the rear seat of the NCAP frontal test world performance. They believed that to better understand rear restraint A. Frontal NCAP it is inappropriate to invent a test and systems for child occupants. Additionally, they encouraged the use In the comments to the notice and the claim correlation to real-world safety public hearing concerning performance improvements without of a belt-positioning booster seat with the six-year old Hybrid III dummy. enhancements to frontal NCAP, most sound data to back this claim. These manufacturers and vehicle safety commenters felt that using child safety Subaru did not support adding dummies to the rear seating position. advocates supported the retention of the seats in NCAP vehicle tests would current frontal crash test protocol at 35 confound the test results and would not Subaru stated that it might not be possible, with the current front seat mph (56 kmph). Additionally, several lead to a meaningful vehicle or CRS positioning procedure, to properly comments suggested that NCAP injury rating. Additionally, the Alliance position a 50th percentile male Hybrid criteria and metrics be consistent with asserted that the real-world safety III dummy in the rear seat of some FMVSS No. 208. Most responders benefits of child restraints demonstrate vehicles; the result could be favored using the KTH injury metric the children are already very well- inconsistent performance evaluations (after additional research) but also protected in the rear seat. As such, they across all vehicles. encouraged the inclusion of other injury believed that adding child dummies in criteria such as neck and chest 3. Lighting child restraints to the rear seating deflection. Some commenters suggested position for front or side NCAP testing Some public commenters expressed that the agency immediately evaluate would not maximize advancements in concerns about lighting and glare lower leg injuries with the Thor-Lx child protection. related to daytime running lights dummy, while others recommended Volvo suggested that if the agency (DRLs). However, the glare comments that NHTSA harmonize with Japan and wanted to develop a child restraint test, were focused on the agency’s Euro NCAP on lower leg assessments. then the test should be performed on a rulemaking activity and not its The agency’s analysis and decisions on sled, and they asserted that there should consumer information activity. frontal NCAP are grouped by categories: be improvements in FMVSS No. 213. Therefore, daytime running lights are Test Dummies, Injury Criteria and their According to Volvo, the restrictions for not discussed in this notice. GM stated associated Risk Curves, and Lower design and testing of the restraints, as that numerous field effectiveness Speed Testing. set up in this standard, basically studies conducted throughout the world prohibit innovative concepts with show that DRLs could prevent some Test Dummies improved performance for reducing crashes. Citing an analysis of field data Comments pertaining to the adoption misuse and improper installation and suggesting that under daytime of additional test dummies included for improving safety performance in a conditions, daytime running lights can wide support for the 5th percentile crash. To improve child safety, prevent 5 percent of opposite direction female Hybrid III dummy, including its Consumers Union recommended that crashes and 12 percent of pedestrian placement in the right front seating NHTSA pursue research toward an and pedalcyclist crashes, GM position. Others recommended that the NCAP rating on (rear) vehicle visibility encouraged NHTSA to expand the agency include a 95th percentile male since they believed that data from Kids installation of DRLs and include this Hybrid III dummy in frontal NCAP. It and Cars and others suggest that technology in its crash avoidance rating was also suggested that dummies be children are most at risk from poor so that manufacturers will be placed in the rear seat for the purpose visibility and blind zones around the encouraged to install them and provide of rating vehicles. vehicle. additional collision avoidance benefit. In response to these comments, 2. Rear Seat Testing 4. Pedestrians NHTSA has decided to include the 5th percentile female Hybrid III dummy in Adding rear seat dummies into the Consumers Union recommended that the right front passenger seating frontal NCAP program was encouraged NHTSA study the work of auto safety position. GM provided the most by some commenters. In particular, researchers in other countries to compelling evidence, and the agency AORC and Bidez and Associates determine whether a pedestrian-friendly reexamined its own data and reached suggested the addition of the 5th NCAP rating would be effective in the the same conclusion.12 That is, the real- percentile female or the 10-year old United States. Consumers Union noted dummy. However, AORC asserted that that Honda has taken a leadership role 12 The agency’s analysis found, based on NASS– an analysis of field data would be in designing a dummy for testing CDS estimates from 1997–2006, that the risk of AIS needed to determine the most pedestrian safety and designing its 2+ injury for smaller belted occupants in the right appropriate dummy and seating vehicles with pedestrian safety in mind. front passenger seating position is 33% greater than that of a mid-sized adult belted occupant in the position, and that dummy development They urged NHTSA to consider using same seating position in full frontal crashes (0–40 may be required in this area to better the Honda pedestrian dummy and to delta velocities, non-rollover cases, age ranges from measure abdominal injuries that may be pursue other opportunities to improve 13 years old or older, height for small adult: Less

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world data suggest that the smaller Injury Criteria and Risk Curves No. 208. The AIS 3+ chest deflection injury risk curve that the agency will females were at greater risk and more With regards to frontal NCAP injury use in NCAP was developed in 2003 by likely to be seated in the right front criteria, the agency agrees with the Laituri et al.17 The agency chose this position in frontal crashes. The agency commenters and has decided to include risk curve for deflection because, as believes that this dummy’s all of the FMVSS No. 208 body regions noted by the agency during the FMVSS incorporation into the NCAP frontal into the frontal NCAP rating system. As No. 208 advanced air bag rulemaking, program is reflective of real-world crash suggested by many commenters, the conditions. the chest deflection risk curve agency believes that their inclusion will published by the agency was not used NHTSA has chosen, however, not to not only add to the robustness of vehicle to establish the performance limits include the 95th percentile male Hybrid evaluations, but it will make the criteria currently in FMVSS No. 208. III dummy in frontal NCAP at this time. used to assign NCAP frontal ratings The agency will be using an AIS 2+ The 95th percentile male Hybrid III consistent with those used in FMVSS risk curve for the femur because most dummy has not been evaluated for No. 208 and in other frontal-crash femur fractures are either of the AIS 2 robustness, reproducibility, and vehicle assessment programs. It will or AIS 3 injury severity. Additionally, repeatability in laboratory impact also allow the agency to incorporate all the AIS 2+ femur risk curve was conditions and it has only undergone safety concerns related to injury criteria primarily developed from multi- very limited sled and vehicle testing. As readings into the calculation of the fragmentary patellar fractures, which, frontal rating thus eliminating the need such, we believe additional research like other articular surface injuries, are to use the safety concern symbol.14 and testing with this dummy is associated with a high level of However, unlike the current NCAP necessary before it can be included into disability. As such, using an AIS 2+ program which uses chest acceleration frontal NCAP. injury risk curve will help ensure that to assess thoracic injury risk, the new debilitating multi-fragmentary patellar With regards to placing adult frontal program will focus instead on fractures are addressed.18 dummies in the rear seating positions of peak chest deflection instead. We NHTSA has decided not to frontal NCAP tests, NHTSA believes believe that the inclusion of chest incorporate an advanced KTH risk curve that more analysis is needed before a deflection into frontal NCAP will into frontal NCAP at this time. In rating program that includes rear seat encourage development of restraint consideration of the comments received occupants can be established. The systems that will further reduce the risk and because this risk curve is agency has conducted some limited of thoracic injuries.15 This is especially undergoing additional evaluation, the testing with both the 50th and 5th true given a manufacturer’s compliance agency felt it would be premature to percentile Hybrid III adult dummies in margin with the chest acceleration limit include it in NCAP. However, we do the rear seat under a full frontal impact of 60 G’s and the fact that the FMVSS believe that the inclusion of a femur condition. However, these preliminary No. 208 belted test is now conducted at injury criterion, as indicated above, will results did not correlate to findings in the same speed as the frontal NCAP test. lead to improved bolster design. the real-world and additional research is Accordingly, frontal NCAP will include Similarly, when coupled with the other necessary to better understand the the following body regions and injury injury criteria for chest deflection and results.13 Similarly, none of the criteria: Head (HIC15), neck (Nij, tension, neck, will lead to overall improved commenters that suggested an NCAP and compression), chest (deflection), restraint system designs. NHTSA has rating program for the rear seat provided and femur (axial force). The risk curves also decided not to harmonize its NCAP the necessary data to establish how such that will be used for these criteria are femur injury values with those of a program would lead to meaningful described below. EuroNCAP and Japan NCAP. The improvements in safety. As indicated in our proposal, NHTSA agency evaluated the rating schemes of is also adopting AIS 3+ and AIS 2+ these international programs along with The agency has decided not to injury risk curves to assess the risk of that from the IIHS. These programs use incorporate the use of the lower legs injury to front seat occupants.16 This a sliding scale to rate vehicles as from the Thor dummy to evaluate lower approach is different from the current opposed to injury risk curves. As such, leg injuries into the program at this NCAP rating system which uses AIS 4+ as will be explained later in this time. The agency is awaiting the (severe) injury risk curves. The new risk document, because we have chosen to completion of research currently in curves will focus vehicle performance maintain our current methodology for progress by an SAE task group. on more frequently occurring injuries combining injury risk we cannot Additionally, this tool has not than severe (AIS 4+) or critical (AIS 5+) substitute sliding scales for risk undergone the necessary robustness, injuries. curves.19 reproducibility, and repeatability testing With the exception of chest The injury risk curves used in the that the agency believes is necessary for deflection, the AIS 3+ injury risk curves NCAP frontal crash test program for the incorporation into an NCAP ratings that will be used by the agency in NCAP 50th percentile male Hybrid III and 5th program. are the same as those used for FMVSS percentile female Hybrid III dummies

than 65 inches, and height for mid-sized adult: approximately ±3% compared to chest deflection International Congress and Exposition, Detroit, MI, 65–73 inches). which was approximately ±4%. and MacKenzie, E. (1986), The Public Health 13 Kuppa, S., Saunders, J., Fessahaie, O., Rear 16 Details of these injury risk curves are provided Impact of Lower Extremity Trauma, SAE Paper No. Seat Occupant Protection in Frontal Crashes, Paper in Appendix C, Injury Risk Curves for the NCAP 861932, Symposium on Biomechanics and Medical No. 05–0212, Nineteenth ESV Conference, Combined Crashworthiness Rating System. Aspects of Lower Limb Injuries, San Diego. Washington DC (2005). 17 Laituri, T., Prasad, P., Sullivan, K., Frankstein, 19 The sliding scales in these programs relate 14 A safety concern symbol is a test occurrence M., Thomas, R. (2005), Derivation and Evaluation that is not reflected in a vehicle’s star rating but that of a Provisional, Age Dependent AIS 3+ Thoracic injury measures to point values without equating NHTSA feels is of significant importance that the Risk Curve for Belted Adults in Frontal Impacts, them to probability of injury. However, risk curves event should be communicated to consumers. SAE Paper No. 2005–01–0297. equate the injury measures to expected risks of 15 The agency evaluated new MY 2005–2007 18 See Ore, L., Tanner, B., States, J. (1993), injury. tested vehicles and found that for acceleration, the Accident Investigation and Impairment Study of standard deviation for risk of injury was Lower Extremity Injury, SAE Paper No. 930096, SAE

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are shown below. How these injury risk vehicle’s frontal NCAP star rating will curves will be combined to generate a be discussed later in Section IV–F. BILLING CODE 4910–13–P

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BILLING CODE 4910–13–C mechanisms, dummy biofidelity, and suggested that side impact test Lower Test Speed risk curves to proceed. procedures and injury criteria be B. Side NCAP consistent with FMVSS No. 214. A lower test speed for frontal NCAP Finally, IIHS encouraged NHTSA to was supported by some commenters but Most commenters supported the adopt or modify their current moving an almost equal number opposed such agency’s proposal to incorporate an deformable barrier (MDB). The agency’s an NCAP test. In light of the real-world oblique pole test into the program, with analysis and decisions on side NCAP studies conducted by the agency and several suggesting that this test should are grouped into the following some of the commenters, NHTSA has be adopted after the completion of the categories: MDB Design, MDB Test decided that additional research is FMVSS No. 214 phase-in. Additionally, Speed, Oblique Pole Test, Test necessary to fully address the proposal several responses encouraged the Dummies in the MDB and Oblique Pole for a lower test speed. At this time, the adoption of new test dummies for side Tests, and Injury Criteria and their agency has insufficient data with NCAP including WorldSID, SID–IIs and associated Risk Curves. respect to test speed, injury ES–2re dummies. Commenters also

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MDB Design ‘‘Good’’ or ‘‘Acceptable’’ performance in a. MDB Test The agency has decided against any the IIHS barrier test had dummy head NHTSA has decided to incorporate modifications to the existing moving and pelvis injury readings, for some the new 50th percentile male ES–2re deformable barrier. Instead, we will vehicles, that were significantly higher dummy into the driver seating position 22 evaluate the IIHS MDB (including the than the IIHS test indicated. These test and the 5th percentile female SID–IIs crabbed vs. perpendicular results indicate that the use of the dummy in the rear seating position for configuration) as part of a more oblique pole test in NCAP will demand the MDB test as adopted in the FMVSS comprehensive approach that is more robust countermeasure designs No. 214 Final Rule. The agency selected currently underway. This research will leading to higher levels of safety the 50th percentile male ES–2re dummy help the agency decide what properties performance. in the driver position because its weight a new MDB should have. As noted in Because the pole test can evaluate and height is more representative of the the FMVSS No. 214 Final Rule,20 only one seating position at a time, most average driving population than is the initiatives to improve vehicle commenters were in support of running SID–IIs dummy. The 5th percentile SID– compatibility between passenger cars one pole test. Several stated that IIs dummy was selected for the rear and light truck vehicles in side crashes conducting multiple side impact pole seating position because it is closer in are likely to change the characteristics tests with different sizes of dummies height to the average outboard rear seat of striking vehicles in the future.21 As would introduce significant test burden. occupant than the 50th percentile ES– such, we believe these new We have decided to add the oblique 2re dummy, and its placement in the characteristics should be included in pole test procedure specified in the rear seat will lead to a more demanding any upgraded MDB. FMVSS No. 214 Final Rule for all test.23 vehicles tested by NCAP. Therefore, MDB Test Speed b. Oblique Pole Test rather than conducting a pole test for There was little support for an each outboard seating position in the NHTSA has decided to conduct only increased test speed for side NCAP, vehicle, we will conduct only one test one oblique pole impact test with the while some urged the agency to to evaluate the front seat outboard 5th percentile female SID–IIs dummy in maintain or lower the current speed. As performance of vehicles. NHTSA the driver position. As stated in our indicated in our request for comments, believes that a single pole test with one recent FMVSS No. 214 Final Rule, small the real-world data indicates that the dummy will provide consumers with stature drivers (height up to 5 feet 4 current test speed is largely information on side pole performance inches) comprise approximately 28 representative of real-world crashes in without introducing significant test percent of seriously or fatally injured which serious and fatal injuries occur; burden to both NHTSA and drivers in narrow object side impacts. In yet, increasing the test speed by 5 mph manufacturers. addition, real-world crash data suggests (8 kmph) would capture approximately that small stature occupants have a 5,000 more serious and fatal injuries. No Test Dummies in the MDB and Oblique higher proportion of head, abdominal, commenters disagreed with this data. Pole Tests and pelvic injuries and a lesser However, NHTSA has not conducted proportion of chest injuries than median any testing at this increased test speed Outside of those commenters who suggested use of the World SID, most stature occupants. with the ES–2re or SID–IIs dummies, So while we selected the 50th commenters supported the and we want to better understand what percentile dummy for the front seating incorporation of the new, recently countermeasures would be developed if position in the MDB test (because it federalized side impact crash test the test speed in side NCAP were represents the average driver), for the dummies into side NCAP. Some increased to 43.5 mph (71 kmph) or pole test we are selecting the 5th specifically proposed that the agency higher. As such, NHTSA has decided to percentile dummy as the driver because use the 50th percentile male ES–2re maintain the current test speed and we in collisions with narrow objects, the dummy for the driver seating position will evaluate the test speed as part of 5th percentile has the higher risk of and the 5th percentile female SID–IIs our more comprehensive research work injury. Additionally, since we are dummy for the rear seating position in that is already underway. conducting the MDB test with the 50th the MDB test. For an oblique pole test, percentile dummy in the driver seating Oblique Pole Test most encouraged the use of the SID–IIs position and the 5th percentile dummy Most commenters supported dummy in the driver seating position. in the driver seating position for the incorporating an oblique pole test into Several commenters recommended NCAP. However, some opposed this pole test, manufacturers will have to that the agency incorporate the encompass a broader range of seating proposal, stating that a pole test would WorldSID dummy into Part 572 and not add an incentive for manufacturers positions with their vehicle and side NCAP. For both test configurations restraint system designs. to provide additional head side impact (pole and MDB), the agency has decided protection beyond the IIHS side impact not to incorporate this dummy into Injury Criteria and Risk Curves test. The agency does not agree with NCAP at this time. Although the agency As with frontal NCAP, several these commenters. As we stated in the has been conducting testing and commenters stated that the injury FMVSS No. 214 Final Rule, we believe evaluation to determine the suitability metrics used in NCAP should be that the pole test in conjunction with of incorporating the WorldSID into Part consistent with the safety standard that our current MDB will drive better head, 572 and side impact crash tests, further serves as their basis. In the case of side chest and pelvis protection than work remains to be completed before its NCAP, the safety standard is FMVSS conducting the IIHS side impact test use in NCAP can occur. No. 214. Several commenters stated that alone. Recent pole tests conducted on vehicles that were found to have Test dummy selection for the MDB and the pole test are discussed below. 23 In the testing which supported the FMVSS No. 214 upgrade, both the 5th and the 50th percentile 20 72 FR 51908, Docket No. NHTSA–2007–29134. dummies passed the MDB test but the rear was 21 69 FR at 27992, Docket No. NHTSA–2004– 22 See Appendix A, NCAP and IIHS Pole Test more stringent and difficult for the 5th percentile 17694. Results. dummy.

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the adoption of the 50th percentile male pelvic (force) for the SID–IIs dummy.24 agency will use in side NCAP are the ES–2re and 5th percentile female SID– NHTSA believes that these criteria and same as those used for the recent IIs dummies and their associated injury their inclusion in side NCAP will lead upgrade to FMVSS No. 214.25 criteria from FMVSS No. 214 would to a more robust rating. Similarly, it will The table below presents the facilitate a more comprehensive also allow the inclusion of head- and applicable injury criteria and associated assessment of side impact injury. pelvic-related injury criteria in the injury risk curves for each dummy that NHTSA agrees with these commenters calculation of the side rating without will be used in the side NCAP vehicle and has decided to incorporate head the need for the safety concern symbol. rating. How these injury risk curves will Similarly, the injury risk curves that the be combined to generate a vehicle’s side (HIC36), chest (deflection), abdomen (force), and pelvic (force) injury criteria NCAP star rating will be discussed later 24 We note that for the SID IIs, we are not in Section IV–F. as well as applicable risk curves to rate incorporating spine acceleration at this time. Even BILLING CODE 4910–13–P vehicles for the ES–2re and, consistent though this measure is included in the new FMVSS No. 214, we do not have a risk curve that has been with the safety standard, HIC36 and validated at this time to include in our rating 25 Details of these injury risk curves are provided scheme for rating vehicles for side impact in Appendix C, Injury Risk Curves for the NCAP protection. Combined Crashworthiness Rating System.

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BILLING CODE 4910–13–C will provide an incentive for others to C. Rollover NCAP Lead Time begin and/or accelerate their processes for improvement as well. Finally, rating Several commenters suggested that While most commenters supported vehicles on both their performance in the agency add an additional star to the the inclusion of the pole test in NCAP, the pole test and the MDB test, which Rollover NCAP rating for vehicles an almost equal number suggested that will now incorporate HIC and other equipped with ESC. They suggested the the test not be incorporated until after criteria, will help foster an environment extra star be supplemented by a footnote saying, ‘‘equipped with electronic FMVSS No. 214 is fully phased-in. for vehicle manufacturers to design stability control.’’ In addition, one NHTSA does not agree with these better side impact designs for the head, commenters. NHTSA believes that some commenter suggested that a star be chest and pelvis, and allow consumers manufacturers have begun to design subtracted from vehicles not equipped to make more informed choices based vehicles to meet the pole test and we with ESC. Commenters also on these new tests. want consumers to be aware of those recommended that NHTSA incorporate vehicles. Additionally, we believe that a new, dynamic structural test into conducting the pole test for MY 2010 rollover NCAP. The agency’s analysis

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and decisions regarding NHTSA’s bands are set at 10 percent, adding a star appears consistent with the newer data, rollover program are grouped into two to the rollover risk rating could suggest possibly (at least in part) because of the categories: Rollover Risk and Injury Risk to consumers that ESC would reduce a sampling variability associated with the Models and Dynamic Rollover and particular vehicle’s risk of rollover by relatively small ESC subset. A larger Structural Test. up to 10 percent in a given crash. This sample may produce different results, could result in unsupported and Rollover Risk and Injury Risk Models and we will recalibrate the estimates if inaccurate vehicle ratings. we determine conclusively (that is, With regards to the agency’s proposal The current rollover risk model was beyond the effects of statistical to develop a new rollover risk model, fit using crash data collected several variability) that the current estimates do the agency agrees with commenters’ years ago (at a time when ESC was not describe the newer data. In the concerns about the effects of ESC on the available in relatively few vehicles). We rollover risk model. However, we do not are monitoring the fit of the model to meantime, we will continue to use the agree that is appropriate to add or newer data and, in particular, to data for risk estimated from the vehicle’s Static subtract a star in the rollover rating to ESC-equipped vehicles. We have Stability Factor (SSF) and its propensity account for ESC. The current rollover identified 7,000 single-vehicle crashes to tip up in the dynamic rollover rating is the result of a detailed analysis with NCAP-tested vehicles equipped ‘‘fishhook’’ test as described in 68 FR of a vehicle’s potential risk of rollover with ESC in our State Data System 59250 (October 14, 2003). These are if a crash is initiated. Given that the star (SDS). At this time, the current model provided below:

1 Vehicles not tipping in dynamic test: Rollover risk = 1+e22.8891+1.1686×−Ln ( SSF 0.9)

1 Vehicles tipping in dynamic test: Rollover risk = 1+e2.6968+1.1686×−Ln (SSF 0.9)

Where SSF=static stability factor the JRS test can be conducted with with the commenters that providing the This model describes the absolute risk dummies to demonstrate whether IIHS results on our Web site could lead of rollover given a single-vehicle crash. vehicle roof performance meets to consumers believing that the agency As will be discussed later, we will objective injury and ejection criteria for has approved, in particular, their include ESC in the new NCAP Crash belted and unbelted occupants. As part dynamic test procedure. In addition, we Avoidance Rating. We feel this will be of our roof crush upgrade, the agency note that the test dummy used by IIHS much more effective in highlighting the has received numerous comments has not been approved for regulatory importance of ESC and other potentially regarding the JRS device.27 The JRS and use, and some of the injury criteria used life-saving technologies. other dynamic rollover procedures are for this assessment have not been being addressed as a part of the roof correlated with real-world injury. Dynamic Rollover and Structural Test crush rulemaking currently underway. We also see very little benefit to In their public hearing testimony, Therefore, a decision on its consumers in publishing IIHS’s static Ford suggested that NCAP dynamic appropriateness for incorporation into head restraint ratings of Good, rollover protocol be aligned with NCAP would be premature at this time. Acceptable, Marginal, etc. on http:// compliance protocol for ESC to D. Rear Impact www.safercar.gov. The agency’s minimize the risk of unintended upgraded head restraint regulation With regards to rear impact NCAP, consequences from the program. The (FMVSS No. 202a) will begin an 80% some commenters urged the agency to agency does not agree with this phase-in for front seats in MY 2010. Any include a rear impact crash test rating suggestion. These tests have manufacturer certifying their head and/or the IIHS test results in NCAP. significantly different performance restraint to the static option of FMVSS Others indicated that linkage to IIHS requirements and are intended to No. 202a, according to IIHS’s current could appear to be an agency measure different dynamic vehicle scheme, would be placed in the Good or endorsement of the IIHS testing and that responses. In the future, it may be Acceptable category. Most of those not it would be premature to incorporate a possible to address the likelihood of achieving a Good rating will be new rear impact dynamic test into aligning the new ESC compliance test adjustable head restraints that IIHS NCAP since the effect of the new with the NCAP dynamic rollover ‘‘fish- downgrades by one category simply FMVSS No. 202a requirements is hook’’ test, but additional research is because they are adjustable. Thus, there unknown at this time.28 Rather, they needed before these two tests can be would be very little meaningful suggested that NHTSA educate combined. Neither test measures the difference in the rating. consumers on the proper use and responses from the other test; therefore, For those manufacturers certifying adjustment of head restraints. neither test could be used as a substitute their head restraints to the dynamic NHTSA does not agree that a dynamic option in FMVSS No. 202a, the static for the other. test would be premature at this time Some commenters suggested a IIHS rating would not provide a since such an option exists in our meaningful metric of performance. The structural rollover test; in particular, FMVSS No. 202a. However, we do agree NHTSA received comments regarding agency also contemplated publishing the actual numerical values of static the Jordan Rollover System (JRS) test surface moves along the track and contacts the roof device.26 Some commenters believe that structure. height and backset that the IIHS 27 See Docket No. NHTSA–2005–22143. measures but have decided against this 26 The JRS device rotates a vehicle body structure 28 By MY 2012, 100% of front and rear seats will course. We believe that consumers on a rotating apparatus (‘‘spit’’) while the road have to meet the upgraded FMVSS No. 202a. would find this information confusing

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and difficult to interpret. As such, rather available benefits data and performance EFFECTIVENESS ESTIMATES FOR ESC, than providing the IIHS data on our test procedures to be included in a FCW, AND LDW—Continued Web site, we have decided to update rating program. http://www.safercar.gov to include We believe that both FCW and LDW System Effectiveness information related to proper head will address major crash problems seen (percent) restraint adjustment. on U.S. roadways. FCW is designed to address primarily rear-end crashes, FCW ...... 15 E. Crash Avoidance Technologies which account for approximately 30 LDW ...... 6–11 Most commenters supported the percent of all crashes, while LDW is NHTSA believes that the FOT results agency’s proposal to implement a crash designed to address crashes due to for FCW and LDW are applicable for avoidance ratings program. However, unintended lane drift. Crash types that estimating real-world safety benefits there were two commenters who did not may result from lane drift include road since these technologies were evaluated believe that a crash avoidance rating departure and opposite direction in the same real-world driving program was needed at this time. Two crashes. The NCAP report showed that environment in which they would be commenters suggested that NHTSA rear-end road departure, and opposite deployed. In general, in an FOT, the work with the automotive industry to direction crashes represent a significant create an advisory panel to develop a amount of the total maximum AIS 3+ major variables impacting a crash avoidance rating system. injuries.29 Results from large scale field technology’s safety benefits, including Additionally, most responses did not tests for FCW and LDW provided differences in individual driving styles favor a cumulative rating system; effectiveness and benefit information for and behavior, system performance, and instead, several commenters each technology and suggest that FCW driver acceptance, are taken into emphasized the importance of selecting and LDW have the potential to account. Likewise, critical safety advanced technologies and developing a significantly reduce the number of incidents (i.e. near-crash incidents that rating system based on real-world crashes that occur in the U.S.30 occur during the FOT) data are recorded effectiveness. Furthermore, several Additionally, NHTSA used data from and evaluated to determine if the commenters recommended that the these field operational tests (FOTs), as technology provided a safety benefit in agency consider other advanced well as additional agency research, to terms of critical incident reduction. technologies beyond ESC, FCW and finalize performance tests establishing Assuming a proportional relationship LDW. minimum performance criteria for FCW between near-crash events and actual NHTSA agrees that a rating system and LDW so that vehicles can be rated crashes, critical incident data are further that incorporates a crash avoidance on their presence.31 For ESC, because it evaluated using statistical methods to system’s estimated benefit is ideal. We had been in the field for some time, we estimate crash reduction benefits. In the also believe that we should establish used real-world data to establish field tests for FCW and LDW systems, this new program quickly for two effectiveness and then used the test NHTSA provided technical management reasons. First, we want to draw a greater procedure which accompanied the Final and the Volpe National Transportation distinction for consumers regarding Rule (FMVSS No. 126) to develop a Systems Center performed an vehicles that are being equipped with performance test and minimum independent evaluation to estimate ESC during the phase-in period. Second, performance criteria.32 The table below safety benefits which included rigorous in addition to ESC, there are other new presents NHTSA’s effectiveness statistical analysis. safety technologies which exist today estimate values for ESC, FCW, and NHTSA believes that ESC, FCW and that can assist a driver in preventing LDW.33 A range was used for LDW to LDW are the only crash avoidance severe and frequently occurring crashes. reflect potential system availability technologies that meet the agency’s We believe that through NCAP, we can variation due to lane marking quality. criteria for inclusion in a crash provide an incentive to encourage avoidance rating program at this time. accelerated deployment of these new, EFFECTIVENESS ESTIMATES FOR ESC, That is, all three address a major crash advanced technologies. The agency’s FCW, AND LDW problem, safety benefit projections have analysis and decisions on new crash been assessed, and performance tests and procedures are available to ensure avoidance ratings program are grouped System Effectiveness into the following categories: Selected (percent) an acceptable performance level. The Technologies and Rating System. agency acknowledges that many other ESC ...... 59 technologies were identified by Selected Technologies commenters such as collision mitigation Those commenters who supported 29 See http://www.safercar.gov/ braking systems, lane keeping assist newcarassessmentenhancements-2007.pdf at page establishment of a program that would 18, Table 6. systems, and side object detection promote crash avoidance technologies 30 LDW effectiveness estimated from data technologies. However, at this time the agreed with the agency’s selection of included in NHTSA Report No. DOT HS 810 854, agency does not have enough data to ESC, FCW and LDW as beneficial Evaluation of a Road Departure Crash Warning estimate the safety benefits of these System, December 2007. FCW effectiveness technologies. Others believed that the estimated from data included in NHTSA Report No. systems, and therefore will not promote agency should expand its list to DOT HS 810 569, Evaluation of an Automotive these other technologies at this time. encompass crash avoidance, Rear-End Collision Avoidance System, March 2006. Through our current research crashworthiness and post-crash 31 See Docket No. NHTSA–2007–27662 for ESC, activities and/or information obtained technologies so as not to limit the LDW, and FCW test procedures. from the automotive industry and the 32 See NHTSA Report No. DOT HS 810 794, The potential safety information that could Statistical Analysis of the Effectiveness of public, the agency anticipates that it be provided to consumers. NHTSA Electronic Stability Control (ESC) Systems-Final will gain information on the benefits believes that ESC, FCW and LDW are Report, July 2007. See also 72 FR 17236, Docket No. and performance capabilities of other the only technologies that meet the NHTSA–2007–27662. advanced safety technologies. If the 33 See Appendix B, Effectiveness Estimates for agency anticipates making changes to agency’s criteria and are mature enough ESC, FCW and LDW for a summary explanation of for inclusion in a crash avoidance rating how overall effectiveness estimate values were the rating system or the technologies program. That is, all three have generated. that the agency has chosen to promote

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as that information is gathered, the With regards to what type of rating following categories: Presentation of agency will seek public input on the system should be used, participants Safety Information and Combined appropriateness of such changes. At this overwhelmingly preferred a rating Crashworthiness Rating. time, we anticipate using similar criteria system that was a simple list approach. Presentation of Safety Information (addresses a major crash problem, Additionally, focus group participants assessed safety benefits, and established unanimously agreed that the use of Some commenters supported performance tests and procedures) to colors is not visually appealing to fully consumer education materials such as determine technologies for future comprehend what they are viewing. In safety tips and safe driving practices. program inclusion. the treatments tested by the agency, Others suggested that NHTSA develop, single check marks as opposed to maintain and make available a database Rating System multiple check marks to indicate a of non-agency sources of credible vehicle safety information. Finally, Generally, there was little support for technologies importance were preferred some commenters suggested that the a crash avoidance rating system based by most participants. Additionally, to agency provide additional information on a cumulative concept (e.g., the more display and communicate the at the point of sale (beyond that technology you have; the higher the information, consumers stated that a required by the new labeling program). rating). Instead, several commenters single check mark or the use of text NHTSA agrees with many of these preferred that the agency develop a (indicating standard or optional) is the most understandable way to illustrate suggestions. NHTSA continuously rating system based on a computation of investigates ways to improve marketing benefits to be expected from the crash the presence of crash prevention technologies, though neither marking the NCAP vehicle ratings program. We avoidance technologies of a rated will place the results of our enhanced vehicle. Regardless of approach, these was overwhelmingly preferred. Participants overwhelmingly objected marketing studies in Docket No. commenters all suggested that the to the multiple checks, star markings NHTSA–02004–19104, as they are agency use a star rating system to inform and A–D grading scale, saying they were completed. consumers about the presence of very difficult to understand, despite advanced technologies. BMW and Combined Crashworthiness Rating having an associated key. Several Mercedes suggested a simpler approach participants also stated that if there Most commenters supported an whereby technologies would essentially were a technology or several overall crashworthiness rating that be listed without regards to their technologies that were more important combined the results from all test effectiveness and without summing than the others, than that should be conditions. Honda and Toyota provided them into an overall rating crash specifically communicated or noted on some details but GM and Ford provided avoidance rating. BMW offered an the layout and inferred, not the use of very specific information on how this approach where all technologies would stars, individual letter grades, or new rating could be calculated. Some all be treated equally but where those multiple check marks. commenters cautioned that an overall technologies that had been proven The agency believes that the rating would overly simplify beneficial by real world studies would preference for the use of check marks or information for consumers, and that it somehow (in their scheme solid green text over the use of an effectiveness could mislead consumers if poor and hollow thumbs were used) be approach may be rooted in the fact that performance were hidden under an denoted differently. Similarly, Mercedes participants (and to the extent that they umbrella rating. Given the general suggested a simple ranking system for are reflective in general of new car support for an overall rating and the technologies. buyers) may not fully grasp the public’s desire for simpler information, To gauge consumer understanding importance of these features. For NHTSA is implementing a new overall and acceptance of these various example, participants generally stated crashworthiness rating that combines systems, NHTSA tested the cumulative that they think of these features as ‘‘nice the results of the front, side and rollover approach, the effectiveness approach, to haves’’ rather than ‘‘must haves’’ programs. and the list approach with groups of because they are not yet aware of how NHTSA will provide a summary consumers.34 NHTSA conducted four the features can reduce fatalities. As crashworthiness rating for each vehicle focus group sessions in the DC area with such, the agency intends to continue (which we will call the Vehicle Safety participants who had to qualify as either monitor the public’s understanding of Score) plus individual scores for each a primary or shared decision maker with this new rating program and if necessary occupant in each crash condition for respect to automobile purchases for change the way in which ratings are that vehicle (as a set of relative risk their household and intended to communicated to the public. For now, measures). This is in accordance with purchase a new or used automobile in based on these focus group results, the comments from Delphi, Public Citizen, the next two years. Participants in both agency will use text to communicate the Bidez and Associates, and the IIHS who groups were also screened to ensure standard or optional presence of ESC, expressed concern over individual test they had some level of concern about LDW, and FCW on vehicles. results being masked and that the safety of automobiles and the groups individual scores in each crash mode F. Presentation and Dissemination of should continue to be provided to the represented a mix of age, education, and Safety Information income. The agency tested letters, stars, consumer. Scores for vehicles will be words, check marks, and color schemes Some commenters encouraged the provided to the consumer via a star (for standard and optional availability) agency to disseminate additional and rating system where the new bands for depending on which one of the three more sophisticated consumer 1 to 5 stars were determined by the approaches was being tested. The information but no specific examples mean and dispersion of the risk of agency also tested a subset of these were given. Most commenters discussed injury in each crash test condition (front treatments in an on-line forum. and supported the agency’s proposal for and side) and the risk of rollover. a combined crashworthiness rating. The Although NHTSA’s previous proposal 34 The full study report is available http:// agency’s analysis and decisions on the did not suggest including the rollover www.regulations.gov in Docket No. NHTSA–02004– presentation and dissemination of safety risk rating in the crashworthiness rating, 19104. information are divided into the the agency has now decided to do so.

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The agency’s decision to include the which are injury risk to the head and injury risk might confuse consumers rollover rating in the combined rating is pelvis. who seek a broader assessment of safety consistent with the 1996 Transportation In GM’s proposal, the normalized performance than one limited to the Research Board recommendation,35 and injury measures for different body driver. Ford proposed using the straight we believe that its inclusion provides a regions are combined by weighting each average of the risks of injury for the more complete summary rating. Below, by the proportion of injuries associated driver and the passenger to obtain the we describe how the frontal and side with each injury measure. The result of overall injury risk. NHTSA agrees with scores are developed and how these this method does not represent either an Ford’s suggested approach. scores are combined with the rollover absolute injury risk or a relative injury However, rather than use the score to create an overall score. risk (as in NHTSA’s method). Therefore, percentages calculated from the Consistent with what has already the risk levels of different vehicles are probability of injury results (as is been presented, NHTSA has selected the not quantifiable. In addition, Ford stated currently done), NHTSA will be following test conditions, test dummies that GM’s proposal assumes a linear computing the relative risk for each and injury criteria to develop its relationship between the dummy seating position and each test condition. combined rating: response and injury risk, when This relative risk measure provides an • One frontal impact crash test (full generally the relationship is non-linear. estimate of an occupant’s risk of injury frontal rigid barrier crash test at 35 mph Therefore, Ford expressed that GM’s compared to a baseline injury risk. The (56 kmph)) with a 50th percentile male proposal could result in an inaccurate score for each occupant in each test Hybrid III dummy in the driver position estimation of the relative vehicle safety condition is computed by dividing the and a 5th percentile female Hybrid III performance. NHTSA agrees with this overall risk of injury in each test dummy in the front passenger seating assessment and has chosen to use the condition by a baseline risk of injury. As position. joint probability of injury formula, as it will be explained below, the baseline • One side impact crash test (38.5 does now, to combine injury risks to risk of injury in each test condition is mph (62 kmph) with NHTSA’s moving different body regions for an occupant. an approximation of the fleet average deformable barrier (MDB) crabbed at 27 However, the agency notes that injury risk for that test condition. The degrees into the side of vehicle) with an computation of the joint probability baseline risk of injury is set once and ES–2re dummy in the front seating requires there to be quality data reused for subsequent model years. This position and a SID-IIs dummy in the available for all of the injury risks being allows cross-year comparisons with rear seating position on the struck side combined. Similarly, to compute the future fleets.36 This operation results in of the vehicle. overall summary rating, data must also six summary scores for each vehicle • An oblique pole impact test (20 be available from all of the tests to representing the relative risk of injury mph (32 kmph)) at 75 degrees into a 25 prevent a model from not being rated. for the driver and passenger in the cm diameter pole including the SID-IIs As such, the agency has included frontal crash test and side MDB test, the dummy in the front seating position. redundant sensor measurement driver in the oblique pole test, and the • Dynamic maneuvering (fish-hook) capability in the test dummies (where relative risk for all occupants in rollover test and static stability factor possible), grouped tests (front, side, and rollovers with respect to a baseline (SSF). rollover) together, and worked with our injury risk. As such, the scores indicate • All applicable injury criteria. test labs to ensure that they are using how a particular vehicle compares to a • Use of injury risk curves. the most up to date calibration baseline risk and these are the scores procedures. In this way, we hope to (star ratings) that will be presented to a. Combining Injury Risk From Different alleviate the potential loss of data and Body Regions consumers on the Web site and in subsequently, vehicles with incomplete agency publications. The agency has chosen to maintain its ratings. To compute a vehicle’s overall risk of current method for combining injury b. Risk of Injury by Seating Position and injury in frontal crash tests, NHTSA has metrics for any seating position in its Test Condition decided to use the simple average of the test. That is, the risk of injury to each For each vehicle, the risk of injury is probability of injury to the driver and body region are assumed to be front passenger. The risk of injury to the independent events and can be estimated from six test results, which are: (1) Driver in frontal crash, (2) driver in side crashes is calculated as statistically combined to determine the the weighted average of the combined joint probability of injury to the passenger in frontal crash, (3) driver in side MDB crash, (4) rear seat passenger probability of injury of the driver in the occupant using the following equation: MDB test (weighted by 80 percent) and p(A or B) = p(A)+p(B)¥p(A)*p(B) where in side MDB crash, (5) driver in oblique pole impact, and (6) rollover potential that of the driver in the oblique pole test A and B are the independent events. (weighted by 20 percent). The weights Using injury risk curves for different in single-vehicle crashes using rollover test results. Ford suggested that the reflect the proportion of belted driver body regions, this method results in an fatalities in real-world crashes overall risk of injury for the occupant. agency combine results using a simple average, but GM suggested a weighted represented by the MDB and pole tests For the two adult Hybrid III dummies in MY 1999 and newer vehicles (FMVSS there are four independent events to approach to combine results. To combine the risk of injury by No. 214 Final Rule, Docket No. NHTSA– combine, which are injury risk to the occupant seating position, GM 2007–29134). The overall risk of injury head, neck, chest, and femur/knee. For suggested weighting based on occupant in side crashes is then computed as the the ES–2re dummy, there are also four demographics and the relative average of the risk of injury to the driver independent events, which are injury frequency of exposure by seating in side impacts (weighted average from risk to the head, chest, abdomen, and position. Ford commented that this MDB and pole test results) and the pelvis, while for the SID–IIs dummy, approach would undervalue NCAP test probability of injury to the rear seat there are only 2 independent events results for passengers since the 36 In the future, the baseline could be adjusted to 35 See Transportation Research Board, Shopping proportion of drivers is far greater than reflect vehicle designs. However, the agency would For Safety: Providing Consumer Automotive Safety that of passengers. Ford asserted that seek public input on the issue before such an Information. TRB Special Report 248 (1996). this method of obtaining the overall adjustment would occur.

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passenger in the MDB test. For rollover, of applying significantly higher weight because the rear seat has a relatively low in order to combine the risk from the to the driver than the passenger based occupancy rate. However, when rollover test with the risk of injuries on occupancy rates in each seating combining the pole test results with the obtained from the crash test, the agency position. NHTSA believes that GM’s MDB results for the front seat, we do has assumed that a belted occupant in proposal would not encourage believe that weighting by crash test a single-vehicle crash p(roll) has the manufacturers to offer advanced safety condition is appropriate. In this way, same relative risk of injury as the risk systems to all seating positions, thereby the results from the pole tests are of rollover given a single vehicle crash. resulting in reduced protection to some. proportional to their occurrence and do As suggested in Ford’s proposal, This is especially significant in the side not mask a vehicles performance in the NHTSA is adopting this method of MDB crash test where the SID–IIs MDB test, possibly providing an averaging the risk of injury between the dummy in the rear seat generally inaccurate portrayal of the vehicle. driver and the passenger to obtain an demonstrates a higher risk of injury than The figure below graphically overall injury risk for each crash mode the driver. Under GM’s approach, the illustrates the method of combining the to ensure equal weighting for all seating rear seating position would have far less different risks. positions. This is unlike GM’s approach value than the driver seating position BILLING CODE 4910–13–P

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BILLING CODE 4910–59–C in each crash mode.37 This approach is NCAP frontal crash test and the c. Combined Crashworthiness Rating similar to GM’s proposal of combining combined crashworthiness rating the crash test results using a weighted (which includes the frontal crash test The agency’s combined average. results) depends on vehicle mass, and crashworthiness rating, the Vehicle Since the NCAP frontal crash test cannot be compared across vehicle Safety Score (VSS), is computed as the involves a vehicle with a fixed rigid weight classes. In contrast, on an weighted average of the three summary barrier, it represents a crash between individual basis, the side crash (pole scores for front, side, and rollover. The two vehicles of the same weight. and MDB) test results and the rollover weight factors applied (5⁄12 for frontal Therefore, the safety rating from the results can be compared across vehicle crashes, 4⁄12 for side crashes, and 3⁄12 rollovers) reflect the proportion of classes. 37 These model years were chosen to reflect newer injuries for belted occupants (in vehicle designs and to obtain a statistically robust vehicles of model year 1999 and later) trend from the NASS/CDS data.

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d. Determination of Baseline Risk and existing NCAP frontal crash test data for injury risk to the nearest tenth of a Star Bands the 50th percentile male Hybrid III percent in accordance with the NHTSA will continue to use the star dummy in the driver seating position. rounding-off method of ASTM Standard rating system to provide an individual To determine the star bands for Practice E 29 for Using Significant Digits crashworthiness rating for each seating frontal NCAP, NHTSA selected a in Test Data to Determine Conformance position, each crash mode, and their baseline risk of 15 percent (representing with Specifications, (2) dividing the combination. However under the new the average risk of injury to the driver injury risk by 0.15 (15.0 percent system, stars will be interpreted in MY 2008 vehicles in the NCAP baseline injury risk), (3) and finally differently. Bands for 1 to 5 stars were frontal crash test) to serve as the break rounding the result to the nearest one determined by the mean and dispersion point for the 4 star and 3 star rating. hundredth in accordance to ASTM of the risk of injury in all three test Other criteria used to determine the star Standard E 29. bands were (1) vehicles performing conditions (front, side, and rollover). As with frontal NCAP, this same In the NCAP frontal tests, the average exceptionally well (At 0–15 percentile methodology was applied to the scores risk of injury to the driver in all 2008 of vehicles tested) are assigned a five model year vehicles is 15 percent ± 5 star rating, and (2) Vehicles performing in the side MDB and oblique pole tests percent. Based on our NCAP injury data very poorly (greater than 4 standard as well as the combined for the 50th percentile male seated in deviations from mean) would be crashworthiness Vehicle Safety Score. the right front passenger seat, we expect assigned a one star. Attempts were also The agency found, for a limited number that a 5th percentile seated in that same made to maintain equidistant star band of newer vehicles tested to both the seating position would have a similar boundaries. Based on these criteria and MDB and Pole test, that when the MDB distribution. Therefore, the agency the distribution of the relative risk of test results were combined with the pole selected a baseline injury risk of 15 injury scores of MY 2008 vehicles, the test, the average risk was 15%. As such, percent to compute the frontal relative relationship between the Relative Risk for side NCAP, the combined risk scores. A relationship between Score (RRS) and the number of stars was crashworthiness rating also represents relative risk of injury and the number of established, and is presented below. The the relative risk of injury with respect to stars assigned was developed using the RRS is computed by (1) rounding the an injury risk of 15 percent.

RELATIONSHIP BETWEEN THE RELATIVE RISK AND THE STAR BANDS FOR FRONT AND SIDE CRASH TESTS USING 15 PERCENT RISK OF INJURY AS THE FLEET AVERAGE

5 stars 4 stars 3 stars 2 stars 1 star

RRS Values ...... RRS < 0.67 ...... 0.67 ≤ RRS < 1.00 1.00 ≤ RRS < 1.33 1.33 ≤ RRS < RRS ≥ 2.67. 2.67. Probability ...... P < 0.100 ...... 0.100 ≤ P < 0.150 0.150 ≤ P < 0.200 0.200 ≤ P < 0.400 P ≥ 0.400.

Similarly for rollover, we selected a of rollover, which produces the relative baseline risk of 15 percent for the risk risk measures shown below.38

CURRENT NCAP STAR RATING IN ROLLOVER AND ITS RELATIONSHIP WITH THE RELATIVE RISK IN ROLLOVER USING 15 PERCENT RISK OF INJURY AS THE BASELINE

Relative risk score in Number of stars Risk of rollover rollover

1 star ...... P ≥0.40 ...... RRS ≥2.67. 2 stars ...... 0.30 ≤P <0.40 ...... 2.00 ≤RRS <2.67. 3 stars ...... 0.20 ≤P <0.30 ...... 1.33 ≤RRS <2.00. 4 stars ...... 0.10 ≤P <0.20 ...... 0.67 ≤RRS <1.33. 5 stars ...... P <0.10 ...... P <0.67.

G. Manufacturer Self-Certification Additionally, because NHTSA does not NHTSA. They must also recall and currently have the resources to conduct remedy without charge to the purchaser Several commenters suggested that oversight over a manufacturer’s test any vehicle that fails to comply with an NHTSA consider a self-certification facility, dummy certification and test applicable safety standard. The process in which NHTSA would oversee setup, a manufacturer’s facilities might manufacturer also is subject to the testing conducted by the take more liberty than agency contract manufacturer. However, it seems additional penalties if it cannot laboratories in their testing procedures. possible that manufacturers could run demonstrate that it had no reason to several tests and report only the best These issues do not affect a know, despite exercising reasonable results; or because manufacturers would manufacturer’s self-certification of care, that the vehicle did not comply know exactly what vehicle was being compliance with the Federal motor with the standard. These are all express tested, the vehicle’s star ratings might vehicle safety standards. A provisions of Title 49, Chapter 301 of not be indicative of a random sample (as manufacturer had a legal duty to report the United States Code. There are no currently done by the agency). any non-compliance promptly to

38 See Appendix D, Probability of Injury, Vehicle Safety Score, and the Star Rating System.

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parallel provisions for the New Car Increased Test Speed before the details, test protocol and Assessment Program. Two commenters and most potential benefits of this activity have In addition, one of the primary automobile manufacturers stated that been resolved. Therefore, we are not reasons for allowing manufacturer self- increased test speeds in frontal NCAP incorporating pedestrian rating into NCAP at this time. certification in NCAP was to allow would promote stiffer vehicle designs information about new vehicles to be and more aggressive restraints. NHTSA Frontal Pole Test agrees that without an appropriate provided more quickly. In this case, A frontal pole test was suggested by measure of vehicle stiffness, a higher NHTSA has had an optional NCAP test two commenters and specifically speed test could lead to more aggressive program in place for nearly 20 years. opposed by one. While the real-world vehicle designs. Therefore, NHTSA has This allows manufacturers to request a data presented by the IIHS seems to decided not to adopt a 40 mph (64 test of new or redesigned vehicles and imply that a number of fatalities and kmph) frontal NCAP test because of get the NCAP information out quickly to injuries are occurring in narrow object concerns about vehicle compatibility, the public. Given these considerations, frontal impacts, at this time NHTSA is the lack of test data, and no clear NHTSA is not adopting the suggestions unclear as to what countermeasures understanding of potential to permit manufacturer self-certification might be developed. Similarly, a countermeasures that could be used by of NCAP results. significant amount of research would manufacturers to achieve the top rating. need to be conducted to establish a new In addition, the agency notes that the H. Other Recommendations frontal impact pole test for NCAP. current frontal NCAP test speed Accordingly, the agency is not adopting Several commenters, in their represents 99 percent of all crashes, and this proposal at this time. responses to the notice and at the public increasing the test speed would not hearing, presented other address a large portion of real-world I. Monroney Label recommendations for the agency’s crashes. On August 10, 2005, the President consideration. NHTSA has decided not Lighting signed into law the Safe, Accountable, to adopt any of these recommendations Flexible, Efficient Transportation Equity Some commenters recommended that at this time for the reasons outlined Act: A Legacy for Users (SAFETEA–LU). NHTSA incorporate a lighting/visibility below. Section 10307 of the Act requires new program into NCAP to address vehicle passenger automobiles to have NCAP Compatibility Assessment blind spots and glare. The commenters safety ratings displayed on the price did not provide (and NHTSA does not Some commenters recommended sticker, known as the Monroney label. believe that there is) sufficient data to front-to-front compatibility assessments, As required by SAFETEA–LU, on justify incorporating a lighting or September 12, 2006 (71 FR 53572), while others suggested vehicle visibility measure into NCAP at this NHTSA published a final rule aggressivity evaluations for frontal time. The agency is conducting research implementing this statutory NCAP. These commenters did not in both of these areas to better assess the requirement, including prescribing the provide (and NHTSA is not aware of) safety problem and explore what any data that would support an NCAP approaches and/or countermeasures form, required information, and layout compatibility evaluation at this time. should be considered. Therefore, of the label. The rule, set forth at 49 CFR The agency has a research program in NHTSA has decided not to incorporate part 575.301, applied to covered this area and should a valid an NCAP rating for lighting or visibility vehicles manufactured on or after compatibility metric emerge from that at this time. September 1, 2007. research, the agency will consider it at Regulation 575.301 specifies the that time. Frontal Offset Test required information for the NCAP Some commenters encouraged the front, side and rollover tests. For the Child Restraints incorporation of a frontal offset test into frontal crash, there are two separate ratings, one for the driver and one for Some commenters suggested that the frontal NCAP. However, others did not support an offset test stating that such the right front passenger. Similarly, two agency test and rate child restraints separate ratings are established for the either in the vehicle and/or on a sled a test did not provide sufficient benefit to consumers or that it was already side crash, one for the front seat and one test. NHTSA has examined this in the being done by others (e.g., IIHS). for the rear seat. One rating is provided past and at that time concluded that: (1) NHTSA has been studying the offset test for rollover. A dynamic rating for a child restraint procedure, but we continue to believe Under our regulation, front, side and system (CRS) was not feasible; (2) the that further research and analysis is rollover NCAP ratings must be placed agency wanted to focus on ease of use needed to ensure that improved on new vehicles manufactured 30 or ratings; and (3) limited in-vehicle occupant protection is provided by such more days after the manufacturer testing with a six-year old dummy did a test without potential unintended receives notification from NHTSA of the 39 not correlate with real-world data. consequences such as increased vehicle ratings. As explained earlier in this However, the agency has continued to stiffness and aggressivity. notice, in addition to any overall rating, investigate CRS and child dummy the agency will still make available on performance in the current NCAP test Pedestrians http://www.safercar.gov the individual environment, and their correlation to Some commenters encouraged seating position results for each crash injury risks for children in real-world NHTSA to pursue opportunities to condition (front, side pole, and side crashes. The agency will take actions at improve pedestrian safety through MDB) and for side NCAP, the front seat such time as the test results and NCAP. The agency has no pedestrian and rear seat score developed from the analyses can be used to support such a standard at this time. While NHTSA is combination of the pole and MDB test rating program. actively engaged in the development of results. However, the agency is using a Global Technical Regulation on this notice to inform manufacturers and 39 See 70 FR 29815, Docket No. NHTSA–2004– pedestrian safety, we feel it would be other interested persons of our intent to 18682. premature to develop a rating program use the new combined side impact score

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developed from the pole and MDB tests NCAP beginning with MY 2010 percentile male ES–2re dummy will be for the Monroney label. In addition, we vehicles. For that model year, the used for the driver position and the 5th will initiate rulemaking to change the agency will make changes to its existing percentile SID–IIs dummy for the rear format and/or the layout of the front and side testing activities requiring seated passenger position. Additionally, Monroney label to incorporate the new all vehicles to be rated using these new vehicles will also be assessed using a overall combined crashworthiness protocols. With regards to the frontal new oblique pole test and a 5th rating. We believe that the combined crash test program, NHTSA will percentile female dummy in the driver rating and the new side impact score maintain the 35 mph (56 kmph) full position, using HIC36 and pelvic (force). will provide consumers with the frontal barrier test protocol but will For rollover, the agency will continue to information they need to make incorporate the following body injury rate vehicles for rollover propensity, but comparative judgments on new criteria: Head (HIC15), neck (Nij, tension, will wait to update its rollover risk vehicles. and compression), chest (deflection), model to allow for more real-world When we issue the notice of proposed and femur (axial force). The agency will crash data of vehicles equipped with rulemaking, we will address relevant also add the 5th percentile female electronic stability control. issues including changing the layout Hybrid III dummy in the right front For MY 2010, the agency will also and format of the label to incorporate seating position. For side impact, implement a new crash avoidance this new, additional information and to NHTSA will maintain the current program that will rate vehicles on the address other labeling issues such as the moving deformable barrier test at 38.5 presence of select advanced lead time necessary for the mph (63 kmph) but will update that test technologies and a new overall Vehicle manufacturers to update their labeling to include head (HIC36), chest Safety Score that will combine the star operations. (deflection), abdomen (force), and pelvic ratings from the front, side, and rollover (force) injury criteria for the ES–2re and, programs. V. Conclusion consistent with the safety standard, Appendix A NHTSA will implement these HIC36 and pelvic (force) for the SID–IIs decisions regarding enhancements to dummy. For the MDB test, the 50th NCAP and IIHS Pole Test Results NHTSA

Combined Lower spine acetabulum Vehicle Vehicle class SAB type Driver test dummy HIC36 accel (Gs) & iliac force (N)

IARV Limits ...... 1000 82 5525 2007 Honda Pilot ...... SUV ...... Curtain + Torso ... SIDIIs ...... 3464 68 6649 2007 Nissan Quest ...... Van ...... Curtain ...... SIDIIs ...... 5694 79 5786 2007 Ford Escape ...... SUV ...... Curtain + Torso ... SIDIIs ...... 407 65 6515 2006 VW Passat ...... Medium PC ...... Curtain + Torso ... SIDIIs ...... 323 40 3778 2006 Subaru Impreza ...... Medium PC ...... Combo ...... SIDIIs ...... 184 58 4377 2007 Toyota Avalon ...... Heavy PC ...... Curtain + Torso ... SIDIIs ...... 642 62 6672

Combined Driver acetab- Head Structure/ Vehicle Vehicle SAB type test HIC15 ulum & Overall Head/ Torso Pelvis/leg protec- safety class dummy iliac force rating neck tion cage (N)

2007 Honda Pilot SUV ...... Curtain + Torso ... SID–IIs .. 167 4700 G G G G G A 2007 Nissan Van ...... Curtain + Torso ... SID–IIs .. 207 2900 G G G G G A Quest. 2007 Ford Escape SUV ...... Curtain + Torso ... SID–IIs .. 216 5600 G G G A G A 2006 VW Passat Medium PC Curtain + Torso ... SID–IIs .. 168 3300 G G G G G G 2006 Subaru Medium PC Combo ...... SID–IIs .. 325 5100 G G G G G A Impreza. 2007 Toyota Heavy PC ... Curtain + Torso ... SID–IIs .. 350 4100 G G A G G A Avalon.

Appendix B • The effectiveness of ESC for Light Trucks 66 participants who each drove an FCW- and Vans (LTV’s) = 72% (weighting for the equipped vehicle for 3 weeks, it was Effectiveness Estimates for ESC, FCW and difference in crash reporting among the estimated that the FCW system has the LDW States). potential to reduce about 15% of all rear-end Electronic Stability Control (ESC) • Assuming an equal weighting between crashes. The FCW system integrated rear-end passenger cars and LTVs, the average This effectiveness estimate comes from the crash warning function with adaptive cruise effectiveness = 59% for Road Departure report: Statistical Analysis of the control function. This system becomes Crashes. operational when vehicle speed exceeds 25 Effectiveness of Electronic Stability Control 59% was assumed to be a best overall (ESC) Systems—Final Report. Report No. mph and disengages when the speed falls effectiveness estimate for road departure below 20 mph. The participants accumulated DOT HS 810 794, July 2007. crashes. From the Executive Summary, page vii, for 98,000 miles of driving data. The FCW Road Departure—Police Reported Crashes: Forward Collision Warning (FCW) system operated in the background during • The effectiveness of ESC for passenger Based on field operational test (FOT) data the first week of the FOT, providing cars = 45% (weighting for the difference in from the Automotive Rear-End Collision information about baseline driving. The final crash reporting among the States). Avoidance FOT (ACAS FOT) collected from 2 weeks of the FOT generated information

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about driver performance with the FCW posted limit data be used to break down the function in the study) and Curve speed system while it operated in the foreground. rear-end crash data. Thus by using warning (CSW) function. LDW monitored the FCW system effectiveness was estimated corresponding crash data by posted speed vehicle’s lane position, lateral speed and separately in each of nine driving conditions limit, total system effectiveness was available maneuvering room. The CSW based on FOT data, which combined three estimated at 15±11% of all rear-end crashes monitored the vehicle’s speed and upcoming driving states (lead vehicle stopped, lead assuming that crash-involved vehicles were road curvature. vehicle decelerating, and slower constant- traveling at the posted speed limits reported The RDCW Evaluation Final Report 1 speed lead vehicle) and three travel speed in the crash database (see Figure 4–42 on discusses numerous safety-related benefits bins (<25, between 25 and 35, and ≥35 mph). page 4–74). This safety benefit also assumes that resulted during the treatment period, Total system effectiveness was derived by 100% system deployment in the vehicle fleet. when the RDCW alerts were enabled. Most integrating individual system effectiveness 15% was assumed to be a best overall safety benefits were accrued by the LDW estimates in the nine driving conditions effectiveness estimate for rear-end crash portion of the RDCW system. These benefits using corresponding rear-end crash data from prevention. include increased turn signal use, improved the GES (see Equation (6) in Section 4.2.2.3 Reference lane keeping, and fewer crossings of a solid on page 4–70). Based on available FOT data, Najm, W.G., Stearns, M.D., Howarth, H., lane marker at speeds above 55 mph. the FCW has shown crash prevention Koopmann, J., and Hitz, J., ‘‘Evaluation of an However, only one of these benefits—fewer potential in lead vehicle stopped at speeds Automotive Rear-End Collision Avoidance crossing of a solid lane marker—was used to over 25 mph, slower constant-speed lead System’’. U.S. Department of Transportation, forecast a reduction in road-departure vehicle at speeds below 25 and over 35 mph, National Highway Traffic Safety crashes. Solid lane markers serve as the road and lead vehicle decelerating at speeds over Administration, DOT HS 810 569, March boundary. During the treatment period and at 35 mph (see Table 4–32 on page 4–73). Using 2006. speeds above 55 mph, drivers crossed solid corresponding crash data by travel speed lane markers 44 percent less often than they only (not taking into account crash data by Lane Departure Warning (LDW) did in the baseline period, when RDCW attempted avoidance maneuver), total system The overall average crash reduction alerts were not enabled. This reduction, effectiveness was estimated at 9±5% of all estimate range (6% to 11%) for Lane weighted by the national departure crash rear-end crashes (see Figure 4–42 on page 4– Departure Warning was obtained from data counts at this speed range, resulted in a 74). However, GES crash data on travel speed collected during a Road Departure Collision forecasted reduction in road-departure are unreliable since the travel speed variable Warning (RDCW) System Field operational crashes. is coded as ‘‘unknown’’ in over 70% of the test (FOT). The system merged and arbitrated Road-departure crash statistics presented rear-end crash cases. As an alternative to warnings between a lane departure warning in Section 4.1 of the RDCW Evaluation travel speed, it is recommended that the system (referred to as a lateral drift warning Report.1

TABLE 4–1.—ROAD-DEPARTURE PRECRASH SCENARIOS (THOUSANDS) GES 2003 [Critical event]

Vehicle Departed movement road edge Lost control Other Row totals

Count ...... 261 208 ...... 469 Row Percent ...... Going Straight ...... 55.7 44.3 ...... Percent ...... 25.4 20.3 ...... 45.7 Count ...... 116 172 ...... 288 Row Percent ...... Negotiating a Curve ...... 40.3 59.7 ...... Percent ...... 11.3 16.7 ...... 28.0 Count ...... 65 55 ...... 120 Row Percent ...... Initiating a Maneuver ...... 54.2 45.8 ...... Percent ...... 6.3 5.4 ...... 11.7 Count ...... 150 150 Percent ...... Other ...... 14.6 Count ...... 442 435 150 1,027 Percent ...... All Groups ...... 43.0 42.4 14.6 ......

From section 4.4.1, this results in an With the 56% availability observed in the Appendix C estimated 9,372 to 74,844 fewer road- FOT, the estimated effectiveness estimated is Injury Risk Curves for the NCAP Combined departure crashes each year. The average of (.56)(.11) = 6%. Crashworthiness Rating System this range equals 42,108. This range is based Since system availability may vary on full LDW availability. depending on the quality of lane markings, This Appendix presents the injury risk a range of 6 to 11% was assumed to be the curves for various body regions applicable to Effectiveness = collisions avoided/collision the Hybrid III 50th percentile male (HIII 50M) best overall effectiveness estimate for crashes population and the Hybrid III 5th percentile female (HIII caused by lane drift. Collision population originates from two 5F) dummies in frontal crash tests and the departure road edge cells in Table 4–1, and Reference ES–2re and the SID–IIs side impact dummies in lateral crash tests. equals 377,000 crashes. With full availability, [1] Wilson, B.H., Stearns, M.D., Koopman, the effectiveness equals: J., Yang, D., ‘‘Evaluation of a Road Departure Injury Risk Curves for Frontal NCAP Head Crash Warning System’’. U.S. Department of The head injury criterion (HIC ) as a 42108 15 ≈ 11%() 1 Transportation, National Highway Traffic metric for assessing head injury risk is well 377000 Safety Administration, DOT HS 810 854, established and in use in FMVSS No. 208 December 2007. (Eppinger et al., 1999).

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1n (.HIC15) − 7 45231 PAIS()3+=Φ  (1)  0. 73998 

Where F = cumulative normal distribution scaling methods, NHTSA took the presents the Nij formulation and Table 1 The AIS 3+ head injury risk curve from the conservative approach in estimating head presents the intercept values (from FMVSS FMVSS No. 208 Advanced Airbag Final injury assessment reference values for the No. 208) of Fint and Mint used in Nij. Economic Assessment was extended from the HIII 5F dummy. As such, this equation will Hertz (1993) AIS 2+ head injury risk curve also be used to assess the risk of AIS 3+ head F M injury for the HIII 5F dummies. =+z y using real-world data to determine the Nij (2) relative incidence of different severity brain Neck FintM int injuries. Since NHTSA will assess the risk of The risk of AIS 3+ neck injury is assessed Where F is the axial force and M is the serious or more severe head injuries, this z y using Nij (Equation 2) as described in flexion/extension moment measured in equation has been selected for use in NCAP Eppinger et al. (1999, 2000) and currently the upper neck load cell. (Equation 1). Due to the uncertainty in the used in FMVSS No. 208. The equation below

TABLE 1.—NIJ INTERCEPT VALUES AND TENSION/COMPRESSION LIMITS FOR IN-POSITION 50TH PERCENTILE ADULT MALE AND 5TH PERCENTILE FEMALE DUMMIES

Nij intercepts Dummy Compres- Compres- Tension sion Tension sion Flexion Extension

HIII 50M ...... 4170 N ...... 4000 N ...... 6806 N ...... 6160 N ...... 310 Nm ...... 135 Nm. HIII 5F ...... 2620 N ...... 2520 N ...... 4287 N ...... 3880 N ...... 155 Nm ...... 67 Nm.

In general, neck injuries occur due to curve was developed using the same paired injury risk due to neck compression. combination loading to in-position pig and dummy test data used for the Equations 3–5 present the risk of AIS 3+ neck occupants. As such, the Nij injury risk curve development of Nij. NHTSA assumed that injury as a function of Nij, neck tension, and is applicable and the agency has selected the the tensile neck tolerance is approximately neck compression for the HIII 50M and HIII risk curve used in the establishment of the equal to the compressive neck tolerance. 5F dummies. Advanced Air Bag rule for FMVSS No. 208 Therefore, the injury risk curve for neck from Eppinger. The neck tension injury risk tension can also be applied to obtain neck

1 HIII 50M and HIII 5F: P(AIS 3+) = −∗ (3) 1+e3.227 1. 969 Nij

1 HIII 550M: P(AIS3+) = (4) 1+e10.9745−∗2. 375 Tension_or_Compression

1 HHIII 5F: P(AIS 3+) = ((5) 1+e10.958−∗3. 770 Tension_or_Compression

Where tension_or_compression is in kV. recent, peer reviewed thoracic injury risk average age of the driving population which The risk of AIS 3+ neck injury in the NCAP curve using chest deflection. Laituri et al. is approximately 35 years. The injury risk frontal crash test is the greater of the injury (2003, 2005) developed AIS 3+ thoracic curve based on this evaluation for assessing risk for Nij, neck tension, and neck injury risk curves by analyzing published risk of AIS 3+ chest injury is presented in compression. In general, the risk of injury cadaveric sled test data and then developing Equation 6 for the Hybrid III 50th percentile obtained from Nij is higher than that for neck a transfer function between dummy chest male dummy. The injury risk curve as a tension or compression in frontal NCAP tests. deflection measurements and cadaveric chest function of chest deflection (Equation 7) for Chest deflection under similar impact conditions. the HIII 5th percentile female dummy (HIII Eppinger et al. (1999) developed injury risk The resulting thoracic injury risk curve is 5F) is obtained by scaling the risk curves for curves for chest deflection. However, the based on dummy measured chest deflection the HIII 50M using the scale factor for chest derived injury risk curve was independent of and occupant age and was evaluated against deflection (=0.817) which is the ratio of the occupant age and was not adequately real world injury risk in frontal crashes. In chest depth of a 5th percentile female to that adjusted to reflect real-world chest injury order to apply this AIS 3+ thoracic injury risk of a 50th percentile male (Eppinger (1999) risk. As such, we have chosen to use a more curve in NCAP, it was normalized to the and Mertz (2003)).

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1 50th percentile P(AIS3+) = 0. 4612 (6) 1+e12.597−∗−∗0..( 05861 35 1 568 ChesstDefl)

1 5th percentile P(AIS3+)= 0. 4612 (7) 1+e12.597−0. 05861∗− 35 1.( 568 ∗ChestDefl/ 0.817 )

Knee-Thigh-Hip distal femur and knee and only four of the female dummy (HIII 5F) was developed by The injury risk curve that the agency will 126 tests used to develop these risks curves scaling the risk curves for the HIII 50M using produced a hip fracture. In addition, the knee use for the Knee-Thigh-Hip (KTH) is the a scale factor of 0.68 (Equation 9). This scale injuries in this dataset were primarily factor was proposed by Eppinger (1999) and same as that reported by Eppinger et al. multifragmentary patellar fractures, which, later by Mertz (2003) and is based on the (1999) in support of FMVSS No. 208 like other articular surface injuries, are (Equation 8). The injury risk curves represent associated with a high level of long-term ratio of the thigh circumference of a 5th femur and knee injury risk since most of the disability. percentile female to that of a 50th percentile injuries in the datasets that were used to The femur injury risk curve as a function male. develop these injury risk curves were to the of femur axial force for the HIII 5th percentile

1 50th percentile P(AIS 2+)= (8) 1+e5.7949−0. 5196 Femur_Force

1 5th percentile P(AIS 2+)= (99) 1+e5.7949−0. 7619 Femur_Force

Joint Probability of Injury of injury to each body region assuming the probability of serious injury, Pjoint, is given The joint probability of injury to an injury to different body regions are by: occupant is obtained by combining the risk independent events. Therefore the

=−−()×−()×−()×− PPPPPjoint 11 head 1 neck 1 chest() 1 femur

Injury Risk Curves for Side NCAP human cadavers onto rigid and padded injuries in lateral crashes in the upgrade to The injury risk curves for the side impact surfaces where the impact area was the FMVSS No. 214 so as to harmonize with the dummies, ES–2re and SID–IIs (Kuppa, 2006), forehead (Lissner et al. 1960, Hodgson et al. existing FMVSS No. 201 optional pole were developed from biomechanical tests 1972). Though forehead impacts are impact test. involving human cadaveric subjects and representative of a frontal impact scenario, Therefore, the FMVSS No. 208 AIS 3+ the ECE R95 directive and Euro NCAP detailed in NHTSA docket (NHTSA–2007– injury risk function presented above for the 29134). continue to apply HIC for head injury assessment in lateral impact scenarios, HIII 50M and HIII 5F dummies will be used Head implicitly assuming that the head/brain in the NCAP side impact tests with the ES– The Head Injury Criterion (HIC), used for injury tolerance is independent of loading 2re and SID–IIs dummies. However, in order assessing injury risk in frontal impacts is direction and impact location. Similarly, to be consistent with FMVSS No. 214, HIC36 based on repeated drop tests of embalmed NHTSA applied HIC36 to assess head/brain will be used rather than HIC15 (Equation 10).

1n (.HIC36) − 7 45231 PAIS()3+=Φ  (10)  0. 73998 

Where F = cumulative normal distribution severity to be a polychotomous variable adjusted to represent the average risk of (AIS<3, AIS=3, AIS>3). However, this AIS 3+ injury in real world side crashes, NHTSA Chest injury risk curve has a finite risk of injury will use the AIS 4+ injury risk curve as the The risk of AIS 3+ and AIS 4+ thoracic even at zero mm of rib deflection. The same corresponding AIS 3+ injury risk in NCAP. injury for a 45 year old (average age of the cadaver and dummy test data reported by The risk of AIS 3+ thoracic injury for a 45 driving population involved in side impacts) Kuppa (2006) were reanalyzed considering year old (average age of the driving 50th percentile adult male occupant as a the injury severity to be dichotomous (AIS<3 population involved in side impacts) 50th function of maximum rib deflection of the and AIS≥3 or AIS<4 and AIS≥4) to develop percentile adult male occupant as a function ES–2re side impact dummy was developed new AIS 3+ and AIS 4+ injury risk curves. of maximum rib deflection of the ES–2re for by Kuppa (2006) by considering the injury Since the injury risk curves have not been use in NCAP is presented in Equation 11.

1 pAIS(3+) = (11) 1+e(5.3895−∗0. 0919 max. rib. defl. )

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FMVSS 214 final rule does not utilize rib 1 of AIS 3+ injured occupants (of height less deflection measures of the SID IIs dummy than 5 ft 4 inches) involved in side crashes. p(AIS3+) = 7.5969−∗0. 0011 F (13) and so they are not considered in NCAP at 1+e Research has indicated that pelvic injuries to this time. Additionally, because the agency Where F is the pubic force in the ES–2re older occupants are associated with does not have a valid risk curve at this time dummy in Newtons increased mortality (O’Brien et al. 2002; for spine acceleration, it is also not included. Henry et al. 2002). During a 5-year period, O’ Kuppa (2006) developed the risk curve for Brien et al. and Henry et al. examined Abdomen AIS 2+ pelvic fracture as a function of the patients who sustained a pelvic fracture and The AIS 3+ abdominal injury risk curve sum of iliac wing and acetabular force in the using the total force in the ES–2re abdomen SID-IIs by scaling the normalized 50th found that patients 55 years and older were reported by Kuppa (2006) is utilized in NCAP percentile male data to that of a 5th more likely to sustain a lateral compression and is presented in Equation 12. percentile female, accounting for older fracture pattern and had a higher frequency subject age, adjusting for lower bone of mortality due to the injury than younger 1 tolerance among female occupants, and patients (<55 years old). Due to the higher mortality rate associated with the elderly, an pAIS(3+) = 6.04044−∗0. 002133 F (12) transforming the applied force on the cadaver 1+e to the sum of acetabular and iliac force AIS 2+ injury risk curve is used in NCAP for Where F is the total force in the ES–2re measured in the SID–IIs dummy. This pelvic the SID–IIs representing a 56 year old small abdomen in Newtons. injury risk function for the SID–IIs is female rather than the AIS 3+ injury risk Since FMVSS No. 214 does not utilize the presented in Equation 14. specified for the ES–2re dummy abdominal rib deflection measures of the Joint Probability of Injury SID-IIs dummy for injury assessment, no 1 The joint risk of injury to an occupant is abdominal injury risk assessment will be p(AIS2+) = (14) 6.3055−∗0. 00094 F obtained by combining the risk of injury to applied to the NCAP side MDB test and the 1+e the head, chest, abdomen and pelvis oblique pole test using the SID IIs dummy. Where F is the sum of the acetabular and assuming the injury to different body regions Pelvis iliac force in the SID–IIs dummy in are independent events (as was done for NHTSA will utilize the AIS 3+ pelvic Newtons frontal impact). Note that for the SID–IIs, the injury risk curve (Equation 13) reported by In developing the pelvis injury criteria for risk of chest and abdomen injury is omitted Kuppa (2006) for injury assessment with the the SID-IIs, an occupant age of 56 years was and only the risk of injury to the head and ES–2re driver in the side MDB NCAP test. considered to correspond to the average age pelvis are combined.

=−−()×−()×−()×− PPPPPjoint 11 head 1 chest 1 abdomen() 1 pelvis

Injury Risk In Rollover Crashes 2004, the NCAP vehicle rollover rating has vehicle crashes as a function of the static The Static Stability Factor (SSF) of a been calculated as a function of the vehicle’s stability factor and the results of the dynamic vehicle is defined as one-half the track width, static stability factor and its propensity to tip rollover test was estimated from the State t, divided by h, the height of the center of up in the dynamic rollover ‘‘fishhook’’ test Data System and is presented below in gravity above the road (SSF = t/(2 × h)). Since (68 FR 59250). The risk of rollover in single- Equations 15 and 16.

1 Vehicles not tipping in dynamic test : Rollover risk = (15) 1+e2..8891+1.1686×−Ln ( SSF 0.9)

1 Vehicles tipping in dynamic ttest : Rollover risk = (16) 1+e2.6968+1.1686×−Ln ( SSF 0.9)

Where SSF=static stability factor elsewhere in this Notice), we treat this as Proceedings of the Thirtieth Stapp Car Crash This model describes the absolute risk of equivalent to the relative risk that a belted Conference, pp 157–166. SAE Paper No. rollover given a single-vehicle crash. We can occupant is injured in a rollover crash given 861884. also describe the risk of rollover relative to a single-vehicle crash. This is not strictly Bouquet, R., Ramet, M., Bermond, F., Vyes, an ‘‘average’’ vehicle. For example, we could true, but our review of the SDS data for C. (1998) Pelvic Human Response to Lateral use a ‘‘typical’’ SSF (which is about 1.35 for belted drivers indicates that it is Impact, 16th International Technical the current fleet) for vehicles that did not tip approximately true. Therefore, the relative Conference on the Enhanced Safety of up in the dynamic test (which reflects the risks of injury to a belted driver in a rollover Vehicles, Paper No. 98–S7–W–16, National future in the sense that when all vehicles are crash conditional on being involved in a Highway Traffic Administration, Windsor, equipped with ESC there will be essentially single-vehicle crash are approximately 1998. no tip-ups in the dynamic test). The risk of proportional to the risks of rollover outlined Cesari D and Bouquet R. (1990) Behavior rollover for a subject vehicle compared to the above. of Human Surrogates under Belt Loading. risk of rollover for this baseline case Proceedings of the Thirty-Fourth Stapp Car describes how much more or less likely the REFERENCES Crash Conference, pp 73–82. SAE Paper No. subject vehicle is to roll over compared to the AAM Association of Automobile 902310. baseline. Thus, for example, a relative risk of Manufacturers (1999), Comments to the Eppinger et al., (1999) Development of rollover of 0.80 means that the subject Supplemental Notice of Proposed Improved Injury Criteria for the Assessment vehicle is 20 percent less likely to roll over Rulemaking FMVSS No. 208 Occupant Crash of Advanced Automotive Restraint Systems than the baseline; a relative risk of 1.25 Protection—Air bags, NHTSA Docket No. II, NHTSA Docket No. NHTSA–1999–6407– means that the subject vehicle is 25 percent NHTSA–1999–6407–40. 5. more likely to roll over than the baseline. For Backaitis SH and St. Laurent A. (1986) Eppinger et al. (2000) Supplement: certain purposes (specifically, in producing Chest Deflection Characteristics of Development of Improved Injury Criteria for the Vehicle Safety Score as described Volunteers and Hybrid III Dummies. the Assessment of Advanced Automotive

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Restraint Systems II, NHTSA Docket No. Ninth Experimental Safety Vehicle Human Chest, Abdomen, and Pelvis in NHTSA–2000–7013–3. Conference, pp. 368–376, Kyoto, Japan. Lateral Impact, Accident Analysis and Hertz E. (1993) A Note on the Head Injury Mertz, H., Irwin, A., Prasad, P. (2003) Prevention, Vol. 21, No. 6, pp. 553–574. Criteria (HIC) as a Predictor of the Risk of Biomechanical and Scaling Bases for Frontal Walfisch, G., Fayon, C., Terriere, J., et al., Skull Fracture. 37th Annual Proceedings of and Side Impact Injury Assessment Reference ‘‘Designing of a Dummy’s Abdomen for the Association for the Advancement of Values. Stapp Car Crash Journal, Vol. 47, pp. Detecting Injuries in Side Impact Collisions,’’ Automotive Medicine. 155–188. 5th International IRCOBI Conference, 1980. Hodgson, V.R. and Thomas, L. M. (1972) Mertz H. (1993) Anthropomorphic Test Effect of Long Duration Impact on Head, SAE Devices, Accidental Injury, Biomechanics, Appendix D 72096, Sixteenth Stapp Car Crash and Prevention, edited by Nahum, A., Relative Risk of Injury, Vehicle Safety Score, Conference, Society of Automotive Melvin, J., Springer-Verlag. and the Star Rating System Engineers, Warrendale, PA. Morgan, et al. (1990) Human Cadaver and Horsch JD, et al. (1991) Thoracic Injury Hybrid III Responses to Axial Impacts of the Introduction Assessment of Belt Restraint Systems Based Femur, Proceedings of the 1990 International IRCOBI Conference on the Biomechanics of The risk of injury to each occupant in on Hybrid III Chest Compression. SAE Paper NHTSA’s Crashworthiness Rating System is No. 912895, Thirty-Fifth Stapp car Crash Impacts, 1990. the joint probability of injury to each body Conference, pp 85–108. NHTSA, Final Economic Assessment region considered for that occupant. The International Standards Organization (ISO) FMVSS No. 208 Advanced Air Bag (2000), overall risk of injury in frontal crashes is the Working Group 6, ISO TC 22/SC 12/ WG 6, NHTSA Docket No. NHTSA–2000–7013–2. average of the injury risk to the driver and Road Vehicles—Injury Risk Curves to Nusholtz, G., Domenico, L., Shi, Y., Eagle, passenger in the frontal crash test. The risk Evaluate Occupant Protection in Side Impact, P. (2003) Studies of Neck Injury Criteria ISO/TR 12350:2002(E). Based on Existing Biomechanical Test Data, of injury to the driver in side crashes is the Kent, R., Patrie, J., Benson, N. (2003) The Accident Analysis and Prevention, Vol. 35, weighted average of the risk to the driver in Hybrid III dummy as a discriminator of pp. 777–786. the MDB test (weight=0.8) and the pole test O’ Brien, D., Luchette, F., Pereira, S., Lim, injurious and non-injurious restraint loading, (weight=0.2). The overall risk of injury in E., Seeskin, C., James, L., Miller, S., Davis, K., Forty0Seventh Annual Proceedings, side crashes is the average of the injury risk Hurst, J., Johannigman, J., Frame, S. (2002) Association for the Advancement of to the driver in side crashes (MDB and Pole) Pelvic Fracture in the Elderly is Associated Automotive Medicine. and the injury risk to the rear seat passenger with Increased Mortality, Surgery, Volume Kuppa, S., Eppinger, R. (1998) in the MDB test. 132, pp. 710–715. The crashworthiness rating system ‘‘Development of an Improved Thoracic Prasad, P., Daniel, R., (1984) A Injury Criterion,’’ Proceedings of the 42nd provides relative risk of injury for each biomechanical analysis of head, neck, and occupant in each crash test condition (driver Stapp Car Crash Conference, SAE No. torso injuries to child surrogates due to 983153. and front outboard passenger in the frontal sudden torso acceleration, SAE Paper No. crash test, driver and near side rear seat Kuppa, S. (2001) Lower Extremity Injuries 841656. passenger in the side MDB test, driver in the and Associated Injury Criteria, Proceedings Rupp, J., Reed, M., Kuppa, S., Wang, S., oblique pole impact test, and rollover test) of the Seventeenth International Technical Goulet, J., Schneider, L., ‘‘The Tolerance of and a Combined Crashworthiness Rating Conference on the Enhanced Safety of the Human Hip to Dynamic Knee Loading,’’ Vehicles, Amsterdam, June, 2001. Stapp Car Crash Journal, Vol. 46, pp. 211– Vehicle Safety Score. The relative risk of Kuppa, S. (2006) Injury Criteria for Side 228, 2002. injury in each test condition for a vehicle is Impact Dummies, Docket No. NHTSA–2007– Rupp, J., Reed, M., Jeffreys, Y., Schneider, computed by dividing the overall risk of 29134–0001. L. (2003). Effects of Hip Posture on the injury in each crash mode by an average Laituri, T., Prasad, P., Kachnowski, B., Frontal Impact Tolerance of the Human Hip baseline risk (for example, the average risk of Sullivan, K., Przybylo, P. (2003) Prediction of Joint. Stapp Car Crash Journal 47:21–33. serious injury in the fleet or that of a group AIS 3+ Thoracic Risks for Belted Occupants Rupp J., Reed, M., Madura, N., Miller, C., of select vehicles in the fleet for a certain in Full Engagements, Real World Frontal Kuppa, S., Schneider, L. (2005). Comparison model year). The Combined Crashworthiness Impacts: Sensitivity to Various Theoretical of the Inertial Response of the Thor-NT, Rating Vehicle Safety Score (VSS) is obtained Risk Curves, SAE Paper No. 2003–01–1355, Hybrid III, and Unembalmed Cadaver to as a weighted average of the individual 2003 SAE World Congress. Simulated Knee-to-Knee-Bolster Impacts. Relative Risk Score (RRS) in each test Laituri, T., Prasad, P., Sullivan, K., Proceedings of the 19th International condition. Frankstein, M., Thomas, R. (2005) Derivation Technical Conference on the Enhanced The RRS for each test condition and the and Evaluation of a Provisional, Age Safety of Vehicles, Paper 05–0086. National VSS represent the risk of injury to occupants Dependent AIS 3+ Thoracic Risk Curve for Highway Traffic Safety Administration, of the vehicle relative to a baseline risk of Belted Adults in Frontal Impacts, SAE Paper Washington DC. injury. For example, a VSS of 1.15 for a No. 2005–01–0297. Rupp, J. (2006). Biomechanics of Hip vehicle implies that the occupants in that Laituri, T., Henry, S., Sullivan, K., Prasad, Fractures in Frontal Motor Vehicle Crashes. vehicle are 15 percent more likely to sustain P. (2006) Derivation and Theoretical Ph.D. Dissertation. The University of serious injury than a vehicle representing the Assessment of a Set of Biomechanics-based, Michigan, Ann Arbor, MI. baseline risk. AIS 2+ Risk Equations for the Knee-Thigh- Viano, et al. (1977) ‘‘Considerations for a Frontal Crash Test Rating Hip Complex, Stapp Car Crash journal, Vol. Femur Injury Criterion,’’ Proceedings of the 50, November 2006. Twenty-First Stapp Car Crash Conference, The historical frontal NCAP crash test data Lissner, H. R. et al. (1960) Experimental SAE Paper No. 770925. for the driver from the model years 1995 Studies on the Relation between Acceleration Viano, D. (1989) Biomechanical Responses through 2008 were examined using the injury and Intracranial Pressure Changes in Man, and Injuries in Blunt Lateral Impact. Proc. risk curves presented in Appendix C. Surgery Gynecology and Obstetrics, pp.329– Thirty-third Stapp Car Crash Conference, pp. The average risk of injury to the head, 338. 113–142, Society of Automotive Engineers, neck, chest, and femur of the driver, Mertz, H., Weber, D. (1982) Interpretations Warrendale, PA. computed using the injury risk curves from of the Impact Responses of a 3-year-old child Viano, D., Lau, I., Asbury, C., King, A., Appendix C, for each vehicle of model years dummy relative to child injury potential. Begeman, P. (1989) Biomechanics of the 2004 to 2008 is presented in Figure 1.

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When compared to data from 1995, these (Table 2). If the average performance of all in the fleet is approximately 0.15. Therefore, data indicate that the average risk of injury the vehicles tested in NCAP each year is used the baseline injury risk of 0.15 was used to to the driver by model year has been reduced to represent the fleet of new cars, then for compute the relative risk of injury in frontal since 1995 and is less than 0.2 after MY 2002 MY 2008, the average risk of serious injury crashes for each vehicle (Table 3).

TABLE 1.—PROBABILITY OF INJURY STATISTICS FOR DRIVERS IN NCAP FRONTAL CRASH TESTS BY MODEL YEAR

Average Prob Std. P 25% P 75% MY prob deviation Minimum P quartile P Median quartile Maximum P

1995 ...... 0.30 0.12 0.10 0.21 0.27 0.35 0.62 1996 ...... 0.32 0.18 0.13 0.18 0.28 0.40 0.86 1997 ...... 0.26 0.14 0.12 0.17 0.22 0.28 0.69 1998 ...... 0.26 0.11 0.11 0.20 0.24 0.30 0.63 1999 ...... 0.29 0.18 0.09 0.17 0.23 0.36 0.71 2000 ...... 0.25 0.15 0.11 0.15 0.22 0.28 0.64 2001 ...... 0.23 0.12 0.09 0.17 0.19 0.26 0.63 2002 ...... 0.20 0.09 0.09 0.14 0.17 0.22 0.61 2003 ...... 0.18 0.09 0.08 0.12 0.15 0.18 0.45 2004 ...... 0.15 0.07 0.08 0.11 0.14 0.18 0.46 2005 ...... 0.17 0.11 0.09 0.11 0.14 0.19 0.57 2006 ...... 0.17 0.06 0.08 0.13 0.15 0.22 0.31 2007 ...... 0.15 0.05 0.09 0.12 0.14 0.17 0.38 2008 ...... 0.15 0.04 0.09 0.12 0.14 0.18 0.24 Average MY 1995–2008 0.10 0.15 0.19 0.25 0.56 Average MY 2004–2008 0.08 0.12 0.14 0.19 0.39

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The average, minimum, maximum, and the exceptionally well (at 0–15 percentile of in accordance with the rounding-off method quartiles presented in Table 3 provide an vehicles tested) are assigned a five star rating, of ASTM Standard Practice E 29 for Using estimate of the dispersion of Relative Risk and (2) vehicles performing very poorly Significant Digits in Test Data to Determine Score (RRS) in different model years. Since (greater than 4 standard deviations from Conformance with Specifications, (2) most of the current vehicles receive four or mean) would be assigned a one star. dividing the injury risk by 0.15 (15.0 percent five stars in the NCAP frontal crash tests, Attempts were also made to maintain baseline injury risk), (3) and finally rounding NHTSA prescribed the baseline risk of 15 equidistant star band boundaries. Based on the result to the nearest one hundredth in percent (representing the average risk of these criteria and the distribution of relative accordance to ASTM Standard E 29. It should injury to the driver in MY 2007 and MY 2008 risk of injury scores presented in Table 3, the be noted that a vehicle which passes vehicles in the NCAP frontal crash test) to be relationship between RRS and the number of compliance (with a 20 percent compliance at the border of the 4 star and 3 star rating. stars was established as presented in Table 4. margin) would have an injury risk of 52.1 Other criteria used to determine the star The RRS is computed by (1) rounding the percent corresponding to a RRS value of 3.47. bands were (1) vehicles performing injury risk to the nearest tenth of a percent BILLING CODE 4910–59–P

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BILLING CODE 4910–59–C

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Side Crash Test Rating were part of NHTSA’s fleet evaluation for the standard deviation, minimum, maximum, Because the agency did not have test data FMVSS 214 side impact upgrade and details median, and 25 and 75 percentile injury risk using the ES 2re or SID IIs dummies at the and thorough analysis of these tests are values) for each dummy in the MDB and NCAP test speed for the MDB test, the agency available in the NHTSA docket number oblique pole tests using the injury risk curves computed the average risk of serious injury NHTSA–2007–25441. from Appendix C. derived from relevant MDB tests and oblique There were six vehicles which were tested The overall risk of injury to the driver for pole impact tests done in support of the in the FMVSS 214 test conditions (MDB each vehicle is the weighted average of the FMVSS 214 side impact protection upgrade. impact at 53 km/h rather than the NCAP 62 driver injury risk in the MDB test (multiplied The MDB test is conducted with the ES–2re km/h) as well as the oblique pole impact by 0.8) and that in the oblique pole test dummy in the front driver seat and the SID– with the SID–IIs dummies. The dummy (multiplied by 0.2). The risk of injuries in IIs in the rear passenger seat. The pole impact injury measures in the paired crash tests of side crashes for a vehicle is the simple test is conduced with the SID–IIs in the these vehicles with the ES–2re and SID–IIs average of the injury risk of the rear seat driver’s seat. dummies were used to determine risk of passenger in the MDB test and the overall The injury risk curves for side impact injury in side crashes and a Relative Risk driver injury risk. Table 4 also presents the reported in Appendix C are applied to side Score (RRS) for side crashes. Table 4 presents statistics for the overall risk of injury to the MDB tests and oblique pole tests. These tests the statistics for the risk of injury (average, driver and the risk of injury in side crashes.

TABLE 4.—PROBABILITY OF INJURY (P) STATISTICS FOR DIFFERENT OCCUPANTS IN THE SIDE MDB AND THE OBLIQUE POLE CRASH TESTS

25% quartile 75% quartile Crash type Average P Std. Dev. P Min P P Median P P Max P

MDB Driver...... 0.09 0.04 0.04 0.06 0.09 0.12 0.13 MDB Pass...... 0.13 0.21 0.03 0.03 0.04 0.07 0.55 Pole Driver...... 0.64 0.39 0.13 0.32 0.79 0.93 0.98 Overall Driver...... 0.20 0.11 0.06 0.12 0.23 0.28 0.30 Side Impact...... 0.16 0.16 0.05 0.07 0.14 0.18 0.43 • The overall risk of injury to the driver is computed as the weighted average of the risk of driver injury in the MDB test (multiplied by 0.8) and the risk of driver injury in the pole test (multiplied by 0.2). • The risk of injury in side impact is the average of the overall driver risk and the risk of rear passenger in the MDB test.

The average risk of injury from the six In order to promote improvement in side Test Data to Determine Conformance with MDB tests for the driver and the rear impact safety in all the vehicles, the baseline Specifications, 2) dividing the injury risk by passenger is 0.09 and 0.13, respectively. The risk of injury to compute Relative Risk Scores 0.15 (15.0 percent baseline injury risk), 3) average risk of injury to the driver in the six (RRS) in side crashes is taken to be 15 and finally rounding the result to the nearest percent. As in frontal crash tests, the RRS in oblique pole tests is 0.64 and the average one hundredth in accordance to ASTM side MDB and pole crash tests is computed overall risk of injury to the driver (combining by 1) rounding the injury risk to the nearest Standard E 29. Table 5 presents the RRS the MDB and pole test results) is 0.20. For tenth of a percent in accordance with the statistics corresponding to the injury risk these six vehicles, the average risk of injury rounding-off method of ASTM Standard presented in Table 4 using a baseline injury in side crashes is 0.16. Practice E 29 for Using Significant Digits in risk of 15 percent.

TABLE 5.—RELATIVE RISK SCORE (RRS) STATISTICS FOR DIFFERENT OCCUPANTS IN THE SIDE MDB AND THE OBLIQUE POLE CRASH TESTS

Average Std. Dev. 25% quartile Median 75% quartile Crash type RRS RRS Min RRS RRS RRS RRS Max RRS

MDB Driver...... 0.60 0.25 0.28 0.42 0.59 0.80 0.87 MDB Pass...... 0.86 1.39 0.20 0.21 0.28 0.45 3.69 Pole Driver...... 4.27 2.57 0.89 2.15 5.24 6.23 6.54 Overall Driver...... 1.33 0.71 0.40 0.77 1.52 1.89 2.00 Side Impact...... 1.09 1.05 0.30 0.49 0.90 1.17 2.84 • The Relative Risk Score for MDB tests, pole tests, and side impacts is obtained by dividing the risk of injury in each side crash mode listed in Table 4 by 0.15 which represents the baseline risk of injury in side impacts.

Vehicles for which all the dummy injury Rollover Rating percent risk (corresponding to a 4 star rating) measures (for the ES–2re and SID–IIs) in the Since the proposed rollover rating is the is used as the baseline risk (as that in front MDB and pole tests just meet the compliance same as that currently used in NCAP, the and side crash test rating), then the limits, the risk of injury is 0.70 for the ES– current relationship between the risk of relationship between the vehicle safety score 2re and 0.42 for the SID IIs dummies rollover and star rating used in NCAP is in rollover is as shown in Table 11. resulting in an overall risk of injury in side applied here and is shown in Table 11. If 15 crashes of 0.532, a RRS of 3.54.

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TABLE 11.—STAR RATING, RISK OF ROLLOVER, AND THE RELATIVE RISK SCORE IN ROLLOVER [Using a baseline risk of 15 percent]

Relative risk score in Number of stars Risk of rollover rollover

1 star ...... P ≥ 40 percent ...... RRS ≥ 2.67 2 stars ...... 30 ≤ P < 40 percent ...... 2.0 ≤ RRS < 2.67 3 stars ...... 20 ≤ P < 30 percent ...... 1.33 ≤ RRS < 2.0 4 stars ...... 10 ≤ P < 20 percent ...... 0.67 ≤ RRS < 1.33 5 stars ...... P < 10 percent ...... RRS < 0.67

Combined Crashworthiness Rating Vehicle used to compute RRS in each crash mode is The final VSS value is obtained by Safety Score 15 percent, the combined crashworthiness rounding the result from the above equation The weighted average of the Relative Risk rating also represents the relative risk of to the nearest one hundredth in accordance Scores (RRS) in front, side, and rollover injury with respect to a baseline of 15 to ASTM Standard E 29. The star bands used crashes is the combined crashworthiness percent. The Vehicle Safety Score for the for rating frontal and side impacts are Combined Crashworthiness Rating is rating Vehicle Safety Score (VSS). The weight applied to the combined crashworthiness computed below: applied to each crash mode represents the rating using VSS and is presented in Table Combined Rating = (5/12) × RRS(front) + (4/ proportion of injury associated with that 12. crash mode. Since the baseline injury risk 12) × RRS(side) + (3/12) × RRS(roll)

TABLE 12.—RELATIONSHIP BETWEEN VEHICLE SAFETY SCORE AND THE STAR RATING

5 stars 4 stars 3 stars 2 stars 1 star

VSS Values ...... VSS <0.67 ...... 0.67 ≤ VSS <1.00 1.00 ≤ VSS < 1.33 1.33 ≤ VSS < 2.67 VSS ≥ 2.67 Probability ...... P < 0.100 ...... 0.100 ≤ P < 0.150 0.150 ≤ P < 0.200 0.200 ≤ P < 0.400 P ≥ 0.400

Authority: 49 U.S.C. §§ 32302, 30111, 106–414, 114 Stat. 1800; delegation of Issued on: July 3, 2008. 30115, 30117, 30166, and 30168, and Pub. L. authority at 49 CFR 1.50. Nicole R. Nason, Administrator. [FR Doc. E8–15620 Filed 7–10–08; 8:45 am] BILLING CODE 4910–59–P

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Part III

Department of Commerce National Oceanic and Atmospheric Administration

Availability of Grant Funds for Fiscal Year 2009; Notice

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DEPARTMENT OF COMMERCE competitive grant/cooperative 1. Protect, Restore and Manage the Use of agreement program, an eligible Coastal and Ocean Resources Through National Oceanic and Atmospheric applicant must submit a complete and Ecosystem-Based Management Administration responsive application to the Summary Description: Coastal areas are among the most developed in the Nation. [Docket No. 080626787–8788–01] appropriate program office. An award is made upon conclusion of the evaluation More than half the population lives on less RIN 0648–ZB96 and selection process for the respective than one-fifth of the land in the contiguous United States. Furthermore, employment in program. Availability of Grant Funds for Fiscal near shore areas is growing three times faster Year 2009 Table of Contents than population. Coastal and marine waters support over 28 million jobs and provide a I. Background tourism destination for nearly 90 million AGENCY: National Oceanic and II. Electronic Access Atmospheric Administration (NOAA), Americans a year. The value of the ocean III. NOAA Project Competitions economy to the United States is over $115 Commerce. National Marine Fisheries Service (NMFS) billion. The value added annually to the ACTION: Notice. 1. FY 2009 Monkfish Research Set-Aside national economy by the commercial and 2. FY 2009 Sea Scallop Research Set-Aside recreational fishing industry alone is over SUMMARY: The National Oceanic and 3. Cooperative Research Program $48 billion. U.S. aquaculture sales total Atmospheric Administration (NOAA) 4. FY 2009 B–WET Chesapeake almost $1 billion annually. With its publishes this notice to provide the 5. FY 2009 Open Rivers Initiative Exclusive Economic Zone of 3.4 million general public with a consolidated 6. FY 2009 Atlantic Salmon Conservation square miles, the United States manages the source of program and application Grants largest marine territory of any nation in the information related to its competitive 7. FY 2009 Community-based Marine world. Funded proposals should help achieve the Debris Prevention and Removal grant and cooperative agreement (CA) following outcomes: Project Grants award offerings for fiscal year (FY) 2009. • Healthy and productive coastal and This Omnibus notice is designed to 8. Marine Fisheries Initiative (MARFIN) marine ecosystems that benefit society replace the multiple Federal Register 9. NOAA General Coral Reef Conservation • A well-informed public that acts as a notices that traditionally advertised the Grants Program steward of coastal and marine ecosystems availability of NOAA’s discretionary 10. Projects to Improve or Amend Coral Program Names: funds for its various programs. It should Reef Fishery Management Plans 1. FY 2009 CRCP-Coral Reef Management 11. Protected Species Cooperative be noted that additional program 2. Bay Watershed Education and Training Conservation (B–WET) Hawaii Program initiatives unanticipated at the time of 12. Saltonstall-Kennedy Grant Program (FY the publication of this notice may be 3. Cooperative Research Program 2009) 4. Marine Fisheries Initiative (MARFIN) announced through subsequent Federal 13. Prescott 2009 5. National Estuarine Research Reserve Register notices. All announcements National Ocean Service (NOS) Land Acquisition and Construction Program will also be available through the 1. FY 2009 CRCP Coral Reef Ecosystem FY 2009 Grants.gov Web site. Monitoring 6. National Estuarine Research Reserve DATES: Proposals must be received by 2. FY 2009 CRCP-Coral Reef Management Graduate Research Fellowship Program FY the date and time indicated under each 3. Bay Watershed Education and Training 2009 7. International Coral SUPPLEMENTARY (B–WET) Hawaii Program program listing in the 8. CSCOR FY09 NGOMEX and CRES INFORMATION section of this notice. 4. CSCOR FY 2009 NGOMEX and CRES 5. FY 2009 California Bay Watershed 9. FY 2009 California Bay Watershed ADDRESSES: Proposals must be Education and Training Program Education and Training Program 10. FY 2009 Ocean Exploration Omnibus— submitted to the addresses listed in the 6. International Coral Marine Archaeology SUPPLEMENTARY INFORMATION section of 7. NOAA’s National Height Modernization 11. FY 2009 Sea Scallop Research Set- this notice for each program. The Program Federal Register and Full Funding Aside 8. National Coastal and Estuarine Research 12. FY 2009 CRCP Coral Reef Ecosystem Opportunity (FFO) notices may be and Technology Program Monitoring found on the Grants.gov Web site. The 9. National Estuarine Research Reserve 13. NOAA’s National Height URL for Grants.gov is http:// Graduate Research Fellowship Program Modernization Program www.grants.gov. FY 2009 14. FY 2009 Monkfish Research Set-Aside 10. National Estuarine Research Reserve 15. Protected Species Cooperative FOR FURTHER INFORMATION CONTACT: Land Acquisition and Construction Conservation Please contact the person listed within Program FY 2009 16. FY 2009 Ocean Exploration Omnibus— this notice as the information contact Oceanic and Atmospheric Research (OAR) Ocean Exploration under each program. 1. Climate Program Office for FY 2009 17. FY 2009 Ocean Exploration Omnibus— SUPPLEMENTARY INFORMATION: 2. FY 2009 NMFS-Sea Grant Fellowships Education Applicants must comply with all in Marine Resource Economics 18. FY 2009 B–WET Chesapeake 3. FY 2009 NMFS-Sea Grant Fellowships 19. National Coastal and Estuarine requirements contained in the Federal Research and Technology Program Funding Opportunity announcement for in Population Dynamics 4. FY 2010 Dean John A. Knauss Marine 20. NOAA General Coral Reef Conservation each of the programs listed in this Grants Program Policy Fellowship (Knauss Fellowship omnibus notice. These Federal Funding 21. FY 2009 Open Rivers Initiative Program) Opportunities are available at http:// 22. FY 2009 Community-based Marine 5. FY 2009 Joint Hurricane Testbed www.grants.gov. The list of entries Debris Prevention and Removal Project 6. FY 2009 Ocean Exploration Omnibus— Grants below describe the basic information Education and requirements for competitive grant/ 23. Projects to Improve or Amend Coral 7. FY 2009 Ocean Exploration Omnibus— Reef Fishery Management Plans cooperative agreement programs offered Marine Archaeology 24. FY 2009 Atlantic Salmon Conservation by NOAA. These programs are open to 8. FY 2009 Ocean Exploration Omnibus— Grants any applicant who meets the eligibility Ocean Exploration 25. FY 2010 Dean John A. Knauss Marine criteria provided in each entry. To be IV. NOAA Project Competitions Listed by Policy Fellowship (Knauss Fellowship considered for an award in a NOAA Mission Goals Program)

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26. FY 2009 NMFS-Sea Grant Fellowships integral part of our strategic planning. It also surface weather forecasts, the availability of in Population Dynamics must support U.S. homeland security by accurate and advanced electronic 27. FY 2009 NMFS-Sea Grant Fellowships maintaining continuity of operations and by navigational charts, and the delivery of real- in Marine Resource Economics providing NOAA services, such as civil alert time oceanographic information. We seek to 28. Prescott 2009 relays through NOAA Weather Radio and air provide consistent, accurate, and timely dispersion forecasts, in response to national positioning information that is critical for air, 2. Understand Climate Variability and emergencies. NOAA ships, aircraft, and sea, and surface transportation. We will Change To Enhance Society’s Ability To Plan environmental satellites are the backbone of respond to hazardous material spills and and Respond the global Earth observing system and provide search and rescue routinely to save Summary Description: Climate shapes the provide many critical mission support lives and money and to protect the coastal environment, natural resources, economies, services. To keep this capability strong and environment. We will work with port and and social systems that people depend upon current with our Mission Goals, we will coastal communities and with Federal and worldwide. While humanity has learned to ensure that NOAA has adequate access to state partners to ensure that port operations contend with some aspects of climate’s safe and efficient ships and aircraft through and development proceed efficiently and in natural variability, major climatic events, the use of both NOAA platforms and those an environmentally sound manner. We will combined with the stresses of population of other agency, academic, and commercial work with the Federal Aviation growth, economic growth, public health partners. We will work with academia and Administration and the private sector to concerns, and land-use practices, can impose partners in the public and private sectors to reduce the negative impacts of weather on serious consequences on society. The 1997– ensure that future satellite systems are aviation without compromising safety. 98 El Nino, for example, had a $25 billion designed, developed, and operated with the Because of increased interest by the public impact on the U.S. economy-property losses latest technology. Leadership development and private sectors, we also will expand were $2.6 billion and crop losses approached and program support are essential for weather information for marine and surface $2 billion. Long-term drought leads to achieving our Mission Goals. We must also transportation to enhance safety and increased and competing demands for fresh commit to organizational excellence through efficiency. water with related effects on terrestrial and management and leadership across a Funded proposals should help achieve the marine ecosystems, agricultural productivity, ‘‘corporate’’ NOAA. We must continue our following outcomes: and even the spread of infectious diseases. commitment to valuing NOAA’s diverse • Safe, secure, efficient, and seamless Decisions about mitigating climate change workforce, including effective workforce movement of goods and people in the U.S. also can alter economic and social structures planning strategies designed to attract, retain transportation system on a global scale. We can deliver reliable and develop competencies at all levels of our • Environmentally sound development climate information in useful ways to help workforce. Through the use of business and use of the U.S. transportation system. minimize risks and maximize opportunities process re-engineering, we will strive for Program Names: for decisions in agriculture, public policy, state-of-the-art, value-added financial and 1. NOAA’s National Height Modernization natural resources, water and energy use, and administrative processes. NOAA will ensure Program public health. We continue to move toward state-of-the-art and secure information 2. FY 2010 Dean John A. Knauss Marine developing a seamless suite of weather and technology and systems. By developing long- Policy Fellowship (Knauss Fellowship climate products. The Climate Goal addresses range, comprehensive facility planning Program) predictions on time scales of up to decades processes, NOAA will be able to ensure right- or longer. sized, cost-effective, and safe facilities. 5. Serve Society’s Needs for Weather and Funded proposals should help achieve the Funded proposals should help achieve the Water Information following outcomes: following outcomes: Summary Description: Floods, droughts, • A predictive understanding of the global • A dynamic workforce with competencies hurricanes, tornadoes, tsunamis, wildfires, climate system on time scales of weeks to that support NOAA’s mission today and in and other severe weather events cause $11 decades with quantified uncertainties the future. billion in damages each year in the United sufficient for making informed and reasoned Program Names: States. Weather is directly linked to public decisions. 1. Saltonstall-Kennedy Grant Program (FY health and safety, and nearly one-third of the • Climate-sensitive sectors and the 2009) U.S. economy (about $3 trillion) is sensitive climate-literate public effectively 2. FY 2010 Dean John A. Knauss Marine to weather and climate. With so much at incorporating NOAA’s climate products into Policy Fellowship (Knauss Fellowship stake, NOAA’s role in understanding, their plans and decisions. Program) observing, forecasting, and warning of Program Names: environmental events is expanding. With our 4. Support the Nation’s Commerce With 1. Bay Watershed Education and Training partners, we seek to provide decision makers Information for Safe, Efficient, and (B–WET) Hawaii Program with key observations, analyses, predictions, Environmentally Sound Transportation 2. Climate Program Office for FY 2009 and warnings for a range of weather and 3. FY 2009 Ocean Exploration Omnibus— Summary Description: Safe and efficient water conditions, including those related to Marine Archaeology transportation systems are crucial to the U.S. water supply, air quality, space weather, and 4. FY 2009 Ocean Exploration Omnibus— economy. The U.S. marine transportation wildfires. Businesses, governments, and Ocean Exploration system ships over 95 percent of the tonnage nongovernmental organizations are getting 5. FY 2009 Ocean Exploration Omnibus— and more than 20 percent by value of foreign more sophisticated about how to use this Education trade through U.S. ports, including 48 weather and water information to improve 6. FY 2010 Dean John A. Knauss Marine percent of the oil needed to meet America’s operational efficiencies, to manage Policy Fellowship (Knauss Fellowship energy demands. At least $4 billion is lost environmental resources, and to create a Program) annually due to economic inefficiencies better quality of life. On average, hurricanes, resulting from weather related air-traffic tornadoes, tsunamis, and other severe 3. Provide Critical Support for NOAA’s delays. Improved surface weather forecasts weather events cause $11 billion in damages Mission and specific user warnings would reduce the per year. Weather, including space weather, Summary Description: Strong, effective, 7,000 weather related fatalities and 800,000 is directly linked to public safety and about and efficient support activities are necessary injuries that occur annually from crashes on one-third of the U.S. economy (about $3 for us to achieve our Mission Goals. Our roads and highways. The injuries, loss of life, trillion) is weather sensitive. With so much facilities, ships, aircraft, environmental and property damage from weather-related at stake, NOAA’s role in observing, satellites, data processing systems, crashes cost an average of $42 billion forecasting, and warning of environmental computing and communication systems, and annually. We provide information, services, events is expanding, while economic sectors our approach to management provide the and products for transportation safety and for and its public are becoming increasingly foundation of support for all of our programs. increased commerce on roads, rails, and sophisticated at using NOAA’s weather, air This critical foundation must adapt to waterways. We will improve the accuracy of quality, and water information to improve evolving mission needs and, therefore, is an our information for marine, aviation, and their operational efficiencies and their

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management of environmental resources, and Grants.gov requested before beginning the quality of life. registration process. Reviewing and Funded proposals should help achieve the Getting started with Grants.gov is easy. Users should note that there are assembling required information before following outcomes: beginning the registration process will • Reduced loss of life, injury, and damage two key features on the Web site: Find to the economy Grant Opportunities and Apply for make the process fast and smooth and • Better, quicker, and more valuable Grants. The site is designed to support save time. weather and water information to support these two features and your use of them. b. DUNS Requirement. All applicants improved decisions applying for funding, including renewal • While you can begin searching for Increased customer satisfaction with grant opportunities immediately, it is funding, must have a Dun and weather and water information and services recommended that you complete the Bradstreet Universal Data Numbering Program Names: steps to Get Started (below) ahead of System (DUNS) number. The DUNS 1. FY 2009 Joint Hurricane Testbed time. This will help ensure you are number must be included in the data 2. FY 2010 Dean John A. Knauss Marine entry field labeled ‘‘Organizational Policy Fellowship (Knauss Fellowship ready to go when you find an opportunity for which you would like to Duns’’ on the form SF–424. Instructions Program) for obtaining a DUNS number can be V. NOAA Non-competitive Opportunity apply. found at the following Web site: I. Background Applications From Individuals http://www.grants.gov/applicants/ get_registered.jsp. Each of the following grant In order for you to apply as an individual, the announcement must c. Central Contractor Registry and opportunities provide: A description of Credential Provider Registration. In the program, funding availability, specify that the program is open to individuals and it must be published on addition to having a DUNS number, statutory authority, catalog of federal applicants applying electronically domestic assistance (CFDA) number, the Grants.gov Web site. Individuals must register with the Credential through Grants.gov must register with application deadline, address for the Federal Central Contractor Registry submitting proposals, information Provider (see Step 3 below) and with Grants.gov (see Step 4 below). and with a Credential Provider. The contacts, eligibility requirements, cost http://www.grants.gov Web site at sharing requirements, and Individuals do not need a DUNS number to register (see Step 4 below) http://www.grants.gov/applicants/ intergovernmental review under get_registered.jsp provides step-by-step Executive Order 12372. and submit their applications. The system will generate a default value in instructions for registering in the In addition, this notice announces that field. Central Contractor Registry and for information related to a non-competitive registering with a credential provider. financial assistance project to be Grants.gov Application Submission and All applicants filing electronically must administered by NOAA. This project is Receipt Procedures register with the Central Contractor titled ‘‘NOAA Coral Reef Conservation This section provides the application Registry and receive credentials from Grant Program—Coral Reef Ecosystem submission and receipt instructions for the Grants.gov credential provider in Research Grants’’. The NOAA Coral Reef NOAA program applications. Please order to apply online. Failure to register Conservation Grant Program announces read the following instructions carefully with the Central Contractor Registry and that it is providing funding to the and completely. credential provider will result in your NOAA Undersea Research Program 1. Electronic Delivery. NOAA is application being rejected by the (NURP) Centers for: The Southeastern participating in the Grants.gov Grants.gov portal. U.S., Florida, and Gulf of Mexico Initiative, which provides the Grant The registration process is a separate Region, the Southeast U.S. and Gulf of Community a single site to find and process from submitting an application. Mexico Center; and the Hawaii and apply for grant funding opportunities. Applicants are, therefore, encouraged to Western Pacific Region, the Hawaii NOAA encourages applicants to submit register early. The registration process Undersea Research Laboratory, to their applications electronically can take approximately two weeks to be administer two external, competitive through: http://www.grants.gov/ completed. Therefore, registration coral reef ecosystem research grants applicants/apply_for_grants.jsp. should be done in sufficient time to programs. To receive an award for this 2. The following describes what to ensure it does not impact your ability to project, an eligible applicant must expect when applying online using meet required submission deadlines. submit a complete and responsive Grants.gov/Apply: You will be able to submit your application to the appropriate program a. Instructions. On the site, you will application online any time after you office. An award is made upon find step-by-step instructions, which receive your e-authentication conclusion of the evaluation process for enable you to apply for NOAA funds. credentials. the prospective project. The Grants.gov/Apply feature includes a d. Electronic Signature. Applications II. Electronic Access simple, unified application process that submitted through Grants.gov constitute makes it possible for applicants to apply submission as electronically signed The FFO for each program is available for grants online. There are six ‘‘Get applications. The registration and e- via the Grants.gov Web site at: http:// Started’’ steps to complete at Grants.gov. authentication process establishes the www.grants.gov. Electronic applications The information applicants need to Authorized Organization Representative for the NOAA Programs listed in this understand and execute the steps can be (AOR). When you submit the announcement may be accessed, found at: http://www.grants.gov/ application through Grants.gov, the downloaded, and submitted to that Web applicants/get_registered.jsp. name of your authorized organization site. The due dates and times for paper Applicants should read the Get Started representative on file will be inserted and electronic submissions are steps carefully. The site also contains into the signature line of the identical. NOAA strongly recommends registration checklists to help you walk application. Applicants must register that you do not wait until the through the process. NOAA the individual who is able to make application deadline to begin the recommends that you download the legally binding commitments for the application process through Grants.gov. checklists and prepare the information applicant organization as the

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Authorized Organization tracking number from Grants.gov with specified in the Application Deadline Representative. the successful transmission of their section. 3. Instructions on how to submit an application. Applicants should print Upon receipt of a full application by electronic application to NOAA via this receipt and save it, along with NOAA, an initial administrative review Grants.gov/Apply: Grants.gov has a full facsimile receipts for information will be conducted to determine set of instructions on how to apply for provided by facsimile, as proof of timely compliance with requirements and funds on its Web site at http:// submission. When NOAA successfully completeness of the application. A merit www.grants.gov/applicants/ retrieves the application from review will also be conducted to apply_for_grants.jsp. The following Grants.gov, Grants.gov will provide an produce a rank order of the proposals. provides simple guidance on what you electronic acknowledgment of receipt to The NOAA Program Officer may will find on the Grants.gov/Apply site. the e-mail address of the AOR. Proof of review the ranking of the proposals and Applicants are encouraged to read timely submission shall be the date and make recommendations to the Selecting through the page entitled, ‘‘Complete time that Grants.gov receives your Official based on the administrative Application Package’’ before getting application. Applications received by and/or merit review(s) and selection started. Grants.gov allows applicants to Grants.gov after the established due date factors listed below. The Selecting download the application package, for the program will be considered late Official selects proposals after instructions and forms that are and will not be considered for funding considering the administrative and/or incorporated in the instructions, and by NOAA. merit review(s) and recommendations of work offline. In addition to forms that NOAA suggests that applicants the Program Officer. In making the final are part of the application instructions, submit their applications during the selections, the Selecting Official will there will be a series of electronic forms operating hours of the Contact Center award in rank order unless the proposal that are provided utilizing an Adobe for Grants.gov, so that if there are is justified to be selected out of rank Reader. questions concerning transmission, order based upon one or more of the Note: For the Adobe Reader, Grants.gov is operators will be available to walk you selection factors below. The Program only compatible with versions 8.1.1 and through the process. Submitting your Officer and/or Selecting Official may above. Please do not use lower versions of application during the Contact Center negotiate the funding level of the the Adobe Reader. Mandatory Fields on hours will also ensure that you have proposal. The Selecting Official makes Adobe Reader Forms: In the Adobe forms you sufficient time for the application to final award recommendations to the will note fields that appear with a yellow complete its transmission prior to the Grants Officer authorized to obligate the background and red outline color. These application deadline. Applicants using funds. fields are mandatory and must be completed dial-up connections should be aware to successfully submit your application. that transmission may take some time Evaluation Criteria Completion of SF–424 Fields: The before Grants.gov receives it. Grants.gov At least three technical reviewers will Adobe forms are designed to fill in will provide either an error or a individually evaluate and rank common required fields such as the successfully received transmission proposals using the following applicant name and address, DUNS message. The Grants.gov reports that evaluation criteria: number, etc., on all Adobe electronic some applicants abort the transmission 1. Importance and/or relevance and forms. To trigger this feature, an because they think that nothing is applicability of a proposed project to the applicant must complete the SF–424 occurring during the transmission program goals: This ascertains whether information first. Once it is completed process. Please be patient and give the there is intrinsic value in the proposed the information will transfer to the other system time to process the application. work and/or relevance to NOAA, forms. Uploading and transmitting many files Federal (other than NOAA), regional, Customer Support. The Grants.gov particularly electronic forms with state, or local activities. Web site provides customer support via associated XML schemas will take some 2. Technical/scientific merit: This (800) 518–4726 (this is a toll-free time to be processed. assesses whether the approach is number) or through e-mail at technically sound and/or innovative, if [email protected]. The Contact Center Evaluation Criteria and Selection the methods are appropriate, and is open from 7 a.m. to 9 p.m. Eastern Procedures whether there are clear project goals and time, Monday through Friday, except NOAA has standardized the objectives. federal holidays, to address Grants.gov evaluation and selection process for its 3. Overall qualifications of applicants: technology issues. For technical competitive assistance programs. There This ascertains whether the applicant assistance to program related questions, are two separate sets of evaluation possesses the necessary education, contact the number listed in the criteria and selection procedures (see experience, training, facilities, and Program Section of the program you are below), one for project proposals, and administrative resources to accomplish applying for. the other for fellowship, scholarship, the project. 4. Timely Receipt Requirements and and internship programs. 4. Project costs: The project’s budget Proof of Timely Submission. is evaluated to determine if it is realistic Project Proposals a. Electronic Submission. All and commensurate with the project applications must be received by http:// Review and Selection Process. Some needs and timeframe. www.grants.gov/applicants/ project proposals may include a pre- 5. Outreach and education: NOAA apply_for_grants.jsp the due date application process that provides for assesses whether this project provides a established for each program. Proof of feedback to applicants that responded to focused and effective education and timely submission is automatically a call for letters of intent or pre- outreach strategy regarding its mission recorded by Grants.gov. An electronic proposals; however, not all programs to protect the Nation’s natural resources. time stamp is generated within the will include this pre-application. If a Selection Factors. The merit review system when the application is program has a pre-application process, ratings will be used to provide a rank successfully received by Grants.gov. The it will be described in the Summary order to the Selecting Official for final applicant will receive an Description section of the funding recommendations. A Program acknowledgment of receipt and a announcement and the deadline will be Officer may first make

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recommendations to the Selecting Officer and/or Selecting Official may monkfish research. The intent of this Official applying the selection factors negotiate the funding level of the program is for fishing vessels to utilize listed below. The Selecting Official shall proposal. The Selecting Official makes these research DAS to conduct monkfish award in rank order unless the proposal final award recommendations to the related research, rather than their is justified to be selected out of rank Grants Officer authorized to obligate the allocated monkfish DAS, thereby order based upon one or more of the funds. eliminating any cost to the vessel following factors: associated with using a monkfish DAS. Evaluation Criteria 1. Availability of funding. Landings from such research trips may 2. Balance/distribution of funds: At least three technical reviewers will be sold to generate funds to help defray a. Geographically, individually evaluate and rank research costs. No Federal funds are b. By type of institutions, proposals using the following provided for research under this c. By type of partners, evaluation criteria. notification. Rather, projects funded d. By research areas, and 1. Academic record and statement of under the Monkfish RSA Program e. By project types. career goals and objectives of the would be provided with additional 3. Whether the project duplicates student. opportunity to harvest monkfish, and other projects funded or considered for 2. Quality of project and applicability the catch sold to generate income to funding by NOAA or other federal to program priorities. offset research costs. Projects funded agencies. 3. Recommendations and/or under an RSA DAS award must enhance 4. Program priorities and policy endorsements of the student. the knowledge of the monkfish fishery factors. 4. Additional relevant experience resource or contribute to the body of 5. Applicant’s prior award related to diversity of education; extra- information on which management performance. curricular activities; honors and awards; decisions are made. The Councils and 6. Partnerships and/or participation of and interpersonal, written, and oral NMFS will give priority to funding targeted groups. communications skills. research proposals in the following 7. Adequacy of information necessary 5. Financial need of the student. for NOAA to make a National general subject areas: (1) Cooperative Environmental Policy Act determination Selection Factors research to supplement NMFS surveys; (2) life history studies on age and and draft necessary documentation The merit review ratings will be used growth, longevity, reproduction, and before funding recommendations are to provide a rank order by the Selecting natural mortality; (3) tagging and made to the Grants Officer. Official for final funding telemetry studies to investigate short- recommendations. A Program Officer Fellowship, Scholarship and Internship and long-term movements and habitat may first make recommendations to the Programs use; (4) research concerning bycatch and Selecting Official by applying the discard mortality of target and/or non- Review and Selection Process: Some selection factors listed below. The target species; (5) trawl and gillnet gear fellowship, scholarship and internship Selecting Official shall award in the studies concerning size and/or species programs may include a pre-application rank order unless the proposal is selectivity and bycatch reduction process that provides for feedback to the justified to be selected out of rank order (including reducing bycatch of and applicants that have responded to a call based upon one or more of the following interactions with protected species); and for letters of intent or pre-proposals; factors: (6) research concerning trophic however, not all programs will include 1. Availability of funds. interactions of monkfish with other this pre-application. If a program has a 2. Balance/distribution of funds: species. Please note that the research pre-application process, the process will a. Across academic disciplines, be described in the Summary b. By types of institutions, or subject areas listed above are not listed Description section of the c. Geographically. in order of priority. Projects that follow announcement and the deadline will be 3. Program-specific objectives. up or expand on previous cooperative specified in the Application Deadline 4. Degree in scientific area and type research are encouraged and will be section. of degree sought. given additional consideration, Upon receipt of a full application by provided such research would enhance NOAA, an initial administrative review III. NOAA Project Competitions the utility of the initial work. will be conducted to determine National Marine Fisheries Service Funding Availability: No Federal compliance with requirements and (NMFS) funds are provided for research under completeness of the application. A merit this notification. Rather, projects review will also be conducted to 1. FY 2009 Monkfish Research Set- selected under the Monkfish RSA produce a rank order of the proposals. Aside Program would be provided with The NOAA Program Officer may Summary Description: NMFS additional opportunity to harvest review the ranking of the proposals and announces that the New England and monkfish, and the catch sold to generate make recommendations to the Selecting Mid-Atlantic Fishery Management income to offset research costs. The Official based on the administrative Councils (Councils) have set aside 500 Federal Government (i.e., NMFS) may and/or merit review(s) and selection monkfish days-at-sea (DAS) to be used issue an Exempted Fishing Permit factors listed below. The Selecting for research endeavors under a research (EFP), if needed, that may provide Official selects proposals after set-aside (RSA) program. NMFS is special fishing privileges in response to considering the administrative and/or soliciting proposals for research research proposals selected under this merit review(s) and recommendations of activities concerning the monkfish program. For example, vessels the Program Officer. In making the final fishery for fishing year 2009 (May 1, participating in an approved research selections, the Selecting Official will 2009-April 30, 2010). Through the project may be authorized by the award in rank order unless the proposal allocation of research DAS, the Northeast Regional Administrator, is justified to be selected out of rank Monkfish RSA Program provides a NMFS, to harvest monkfish in excess of order based upon one or more of the mechanism to reduce the cost for vessel established possession limits. This selection factors below. The Program owners to participate in cooperative would be the fourth year of the

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Monkfish RSA Program. Two awards Science Center, 166 Water Street, 2. FY 2009 Sea Scallop Research Set- were issued under the 2006 Monkfish Woods Hole, MA 02543, by phone 508– Aside RSA Program, with these projects 495–2070, fax 508–495–2004, or e-mail Summary Description: NMFS requests ending in April 2007. Three awards [email protected]. scallop research proposals to utilize were issued under the 2007 Monkfish Information Contacts: Information Atlantic sea scallop (scallop) total RSA Program, with these projects may be obtained from Paul Howard, allowable catch (TAC) and Days-at-Sea recently ending April 2007. Four awards Executive Director, New England (DAS) that have been set-aside by the have been issued under the 2008 Fishery Management Council (NEFMC), New England Fishery Management Monkfish RSA program, and these by phone 978–465–0492, or by fax 978– Council (Council) to fund scallop projects are expected to commence in 465–3116; Philip Haring, Senior Fishery research endeavors through the 2009 May 2008. A total of 137.5 RSA DAS Analyst, NEFMC, by phone 978–465– Atlantic Sea Scallop Research Set-Aside were issued to projects during FY 2006. 0492, or by e-mail at Program (Scallop RSA Program). NMFS A total of 367 RSA DAS were issued to [email protected]; or Cheryl Corbett, is requesting proposals for research projects for FY 2007. All of the 500 NMFS, Northeast Fisheries Science activities for FY 2009. No Federal funds monkfish RSA DAS available thru the Center, phone 508–495–2070, fax 508– are provided for research under this Monkfish RSA program have been 495–2004, or e-mail [email protected], notification. issued to projects for FY 2009. It is or from Ryan Silva, NMFS, Northeast Rather, the Scallop RSA Program anticipated that 2–5 awards will be Regional Office, phone (978) 281–9326, funds scallop research and compensates made under the 2009 Monkfish RSA fax (978) 281–9135, e-mail participating vessels through the sale of Program. Funds generated from landings [email protected]. scallops harvested under the research harvested and sold under the Monkfish set-aside quota. Priority will be given to RSA Program shall be used to cover the Eligibility: 1. Eligible applicants scallop research proposals that cost of research activities, including include, but are not limited to, investigate research priorities identified vessel costs. For example, the funds institutions of higher education, by the Council and detailed under the may be used to pay for gear hospitals, other nonprofits, commercial Program Priorities section of the FFO. modifications, monitoring equipment, organizations, individuals, State, local, Funding Availability: No Federal the salaries of research personnel, or and Native American tribal funds are provided for sea scallop vessel operation costs. The Federal governments. Federal agencies and research under this notice. Funds are Government shall not be liable for any institutions are not eligible to receive generated through the sale of set-aside costs incurred in the conduct of the Federal assistance under this notice. scallops. The Federal government will project. Specifically, the Federal Additionally, employees of any Federal Government is not liable for any costs agency or Regional Fishery Management issue Letters of Authorization (LOAs) incurred by the researcher or vessel Council (Council) are ineligible to that provide special fishing privileges in owner should the sale of catch not fully submit an application under this response to sea scallop research reimburse the researcher or vessel program. However, Council members proposals selected to participate in the owner for his/her expenses. Any who are not Federal employees may 2009 Scallop RSA Program. Funds additional funds generated through the submit an application. 2. DOC/NOAA generated from RSA landings shall be sale of set-aside landings, above the cost supports cultural and gender diversity used to cover the cost of the research of the research activities, shall be and encourages women and minority activities, including vessel costs, and to retained by the vessel owner as individuals and groups to submit compensate vessels for expenses compensation for the use of his/her applications to the RSA program. In incurred during the collection of set- vessel. addition, DOC/NOAA is strongly aside scallops. For example, these funds Statutory Authority: Statutory committed to broadening the could be used to pay for gear authority for this program is found participation of historically black modifications, monitoring equipment, under sections 303(b)(11), 402(e), and colleges and universities, Hispanic additional provisions (e.g., fuel, ice, 404(c) of the Magnuson-Stevens Fishery serving institutions, tribal colleges and food for scientists) or the salaries of Conservation and Management Act, 16 universities, and institutions that work research personnel. The Federal U.S.C. 1853(b)(11), 16 U.S.C. 1881a(e), in underserved areas. DOC/NOAA Government is not liable for any costs and 16 U.S.C. 1881(c), respectively. The encourages proposals involving any of incurred by the researcher or vessel ability to set aside monkfish DAS for the above institutions. 3. DOC/NOAA owner. Any additional funds generated research purposes was established in encourages applications from members through the sale of set-aside scallops the final rule implementing Amendment of the fishing community and above the cost of the research activities, 2 to the Monkfish Fishery Management applications that involve fishing shall be retained by the vessel owner as Plan (70 FR 21927, April 28, 2005), community cooperation and compensation for the use of his/her codified at 50 CFR 648.92(c). participation. vessel. Catalog of Federal Domestic Statutory Authority: Statutory Cost Sharing Requirements: None Assistance (CFDA) Number: 11.454, authority for this program is provided required. Unallied Management Projects. under sections 303(b)(11), 402(e), and Application Deadline: Full proposals Intergovernmental Review: Applicants 404(c) of the Magnuson-Stevens Fishery must be received by 5 p.m., Eastern will need to determine if their State Conservation and Management Act, 16 Daylight Time, on September 9, 2008. participates in the intergovernmental U.S.C. 1853(b)(11), 16 U.S.C. 1881a(e), Address for Submitting Proposals: To review process. This information can be and 16 U.S.C. 1881(c), respectively. The apply for this NOAA Federal funding found at the following Web site: ability to set aside scallop TAC and DAS opportunity, please go to http:// http://www.whitehouse.gov/omb/grants/ and to establish parameters are found in www.grants.gov, and use the following spoc.html. This information will assist the Joint Frameworks (69 FR 63460, funding opportunity # NMFS–NEFSC– applicants in providing either a Yes or November 2, 2004), and Amendment 10 2009–2001478. Applicants without No response to Item 16 of the (69 FR 35194, June 23, 2004) and Internet access may contact Cheryl Application Form, SF–424, entitled Framework Adjustment 19 (73 FR Corbett, NMFS, Northeast Fisheries ‘‘Application for Federal Assistance.’’ 30790, May 29, 2008) to the Federal

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Atlantic Sea Scallop Fishery Intergovernmental Review: Applicants Liaison Branch, 263 13th Avenue South, Management Plan (May 15, 1982). will need to determine if their State St. Petersburg, FL 33701. Catalog of Federal Domestic participates in the intergovernmental Information Contacts: For questions Assistance (CFDA) Number: 11.454, review process. This information can be regarding the application process, you Unallied Management Projects. found at the following Web site: may contact: Robert Sadler, State/ Application Deadline: Full proposals http://www.whitehouse.gov/omb/grants/ Federal Liaison Branch, (727) 824–5324, must be received by 5 p.m., Eastern spoc.html. This information will assist or [email protected]. Standard Time, on August 25, 2008. applicants in providing either a Yes or Eligibility: Eligible applicants may be Address for Submitting Proposals: To No response to Item 16 of the institutions of higher education, apply for this NOAA Federal funding Application Form, SF–424, entitled nonprofits, commercial organizations, opportunity, please go to http:// ‘‘Application for Federal Assistance.’’ individuals, and state, local, and Indian www.grants.gov, and use the following tribal governments. Federal agencies or funding opportunity # NMFS–NEFSC– 3. Cooperative Research Program institutions are not eligible. Foreign 2009–2001472. Applicants without Summary Description: The CRP governments, organizations under the Internet access may contact Cheryl program provides financial assistance jurisdiction of foreign governments, and Corbett, NMFS, Northeast Fisheries for projects that seek to increase and international organizations are excluded Science Center, 166 Water Street, improve the working relationship for purposes of this solicitation since Woods Hole, MA 02543, by phone 508– between researchers from the NMFS, the objective of the CRP is to optimize 495–2070, fax 508–495–2004, or e-mail state fishery agencies, universities, and research and development benefits from [email protected]. fishermen in the Gulf of Mexico and off U.S. marine fishery resources. Information Contacts: Information the South Atlantic states of North Applicants who are not commercial or may be obtained from Deirdre Boelke, Carolina, South Carolina, Georgia, and recreational fisherman must have New England Fishery Management Florida involving the U.S. fishing commercial or recreational fishermen Council, phone (978) 465–0492, fax industry (recreational and commercial). participating in their project. There (978) 465–3116, or e-mail The program is a means of involving must be a written agreement with a [email protected], from Cheryl commercial and recreational fishermen fisherman describing the involvement in Corbett, NMFS, Northeast Fisheries in the collection of fundamental the project activity. Science Center, phone 508–495–2070, fisheries information. Collection efforts Cost Sharing Requirements: Cost- fax 508–495–2004, or e-mail support the development and evaluation sharing is not required for this program. [email protected], or from Ryan Silva, Intergovernmental Review: of management and regulatory options. NMFS, Northeast Regional Office, Applications submitted by state and This program addresses NOAA’s phone (978) 281–9326, fax (978) 281– local governments are subject to the mission goal to ‘‘Protect, Restore, and 9135, e-mail [email protected]. provisions of Executive Order 12372, Eligibility: 1. Eligible applicants Manage the Use of Coastal and Ocean Intergovernmental Review of Federal include, but are not limited to, Resources Through an Ecosystem Programs. Any applicant submitting an institutions of higher education, Approach to Management.’’ application for funding is required to hospitals, other nonprofits, commercial Funding Availability: Approximately complete item 16 on SF–424 regarding organizations, individuals, state, local, $2.0 million may be available in fiscal clearance by the State Single Point of and Native American tribal year (FY) 2009 for projects. Actual Contact (SPOC) established as a result of governments. Federal agencies and funding availability for this program is EO 12372. To find out about and institutions are not eligible to receive contingent upon Fiscal Year 2009 comply with a State’s process under EO Federal assistance under this notice. Congressional appropriations. The 12372, the names, addresses and phone Additionally, employees of any Federal NMFS Southeast Regional Office numbers of participating SPOCs are agency or Regional Fishery Management estimates awarding projects that will listed in the Office of Management and Council (Council) are ineligible to range from $25,000 to $400,000. The Budget’s home page at: http:// submit an application under this average award is $150,000. Publication www.whitehouse.gov/omb/grants/ program. However, Council members of this notice does not obligate NMFS to spoc.html. who are not Federal employees may award any specific grant or cooperative submit an application. 2. DOC/NOAA agreement or any of the available funds. 4. FY 2009 B–WET Chesapeake supports cultural and gender diversity Statutory Authority: Authority for the Summary Description: The and encourages women and minority CRP is provided by the following: 15 Chesapeake B–WET grant program is a individuals and groups to submit U.S.C. 713c–3(d). competitively based program that applications to the RSA program. In Catalog of Federal Domestic supports existing environmental addition, DOC/NOAA is strongly Assistance (CFDA) Number: 11.454, education programs, fosters the growth committed to broadening the Unallied Management Projects. of new programs, and encourages the participation of historically black Application Deadline: Applications development of partnerships among colleges and universities, Hispanic must be received by 5 p.m., Eastern environmental education programs serving institutions, tribal colleges and Daylight Time on September 9, 2008 to throughout the entire Chesapeake Bay universities, and institutions that work be considered for funding. Applications watershed. Funded projects assist in in underserved areas. DOC/NOAA received after the deadline will be meeting the Stewardship and encourages proposals involving any of rejected/returned to the sender without Community Engagement goals of the the above institutions. 3. DOC/NOAA further consideration. Chesapeake 2000 Agreement. Projects encourages applications from members Address for Submitting Proposals: chosen for award under this program of the fishing community and Applications must be submitted through support organizations that provide applications that involve fishing www.grants.gov, unless an applicant students meaningful watershed community cooperation and does not have Internet access. In that educational experiences and teachers participation. case, hard copies with original related professional development Cost Sharing Requirements: None signatures may be sent to: National opportunities related to the Chesapeake Required. Marine Fisheries Service, State/Federal Bay watershed.

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Funding Availability: This solicitation Grants Officer as part of the terms when Department of Commerce/National announces that approximately $3.5M the award is made. Oceanic and Atmospheric may be available in FY 2009 in award Statutory Authority: Under 33 U.S.C. Administration (DOC/NOAA) is amounts to be determined by the 893a(a), the Administrator of the strongly committed to broadening the proposals and available funds. Funding National Oceanic and Atmospheric participation of historically black is anticipated to maintain partnerships Administration is authorized to colleges and universities, Hispanic for up to 3 years duration, but is conduct, develop, support, promote, serving institutions, tribal colleges and dependent on funding made available and coordinate formal and informal universities, and institutions that work annually by Congress. Project proposals educational activities at all levels to in underserved areas. The NCBO accepted for funding with a project enhance public awareness and encourages proposals involving any of period over one year do not have to understanding of ocean, coastal, Great the above institutions. compete for the additional years of Lakes, and atmospheric science and Cost Sharing Requirements: No cost funding. However, funding for the stewardship by the general public and sharing is required under this program, additional years is contingent upon the other coastal stakeholders, including however, the NCBO strongly encourages availability of funds and satisfactory underrepresented groups in ocean and applicants applying for either area of performance and is at the sole discretion atmospheric science and policy careers. interest to share as much of the costs of of the agency. 1. Approximately $2.5M In conducting those activities, the the award as possible. Funds from other of the $3.5M available in FY 2009 will Administrator shall build upon the Federal awards may not be considered be for exemplary programs that educational programs and activities of matching funds. The nature of the the agency. contribution (cash versus in-kind) and successfully integrate teacher Catalog of Federal Domestic the amount of matching funds will be professional development on the Assistance (CFDA) Number: 11.457, taken into consideration in the review Chesapeake Bay watershed with in- Chesapeake Bay Studies. process. Priority selection will be given depth classroom study and outdoor Application Deadline: Proposals must to proposals that propose cash rather experiences for their students. 2. be received by 5 p.m. eastern time on than in-kind contributions. Approximately $500K of the $3.5M Friday, October 3, 2008. Intergovernmental Review: available in FY 2009 will be for Address for Submitting Proposals: Applications under this program are proposals that provide opportunities Applications must be submitted through subject to Executive Order 12372, either for students to participate in www.grants.gov, unless an applicant Intergovernmental Review of Federal MWEEs related to Chesapeake Bay or does not have Internet access. In that Programs. related Professional Development for case, hard copies with original teachers. 3. Approximately $500K of the signatures may be sent to: Shannon 5. FY 2009 Open Rivers Initiative $3.5M available in FY 2009 will be for Sprague, B–WET Program Manager, Summary Description: The NOAA proposals that incorporate CBIBS into NOAA Chesapeake Bay Office, 410 Open Rivers Initiative (ORI) provides meaningful watershed educational Severn Avenue, Suite 107A, Annapolis, funding to catalyze the implementation experiences for students or related MD 21403 of locally-driven projects to remove professional development for teachers. Information Contacts: Please visit the dams and other river barriers, in order The NCBO anticipates that typical B–WET Web site for further information to benefit living marine and coastal awards for B–WET Exemplar Programs at: http://noaa.chesapeakebay.net/ resources, particularly diadromous fish. that successfully integrate teacher educationgrants.aspx or contact the Projects funded through the Open professional development with in-depth NOAA Chesapeake Bay Office, 410 Rivers Initiative have strong on-the- classroom student and outdoor Severn Avenue, Suite 107A, Annapolis, ground habitat restoration components experiences for their students will range MD 21403, or by phone at 410–267– that foster economic, educational, and from $50,000 to $200,000. Projects that 5660. Potential applicants are also social benefits for citizens and their represent either meaningful watershed invited to contact the staff before communities in addition to long-term educational experiences for students or submitting an application to discuss the ecological habitat improvements for teacher professional development in applicability of partnership ideas to B– NOAA trust resources. Through the ORI, watershed education will range from WET goals and objectives. B–WET NOAA provides funding and technical $25,000 to $75,000. Projects focusing on contacts are as follows: Virginia/West assistance for barrier removal projects. the Chesapeake Bay Interpretive Buoy Virginia: Ann Marie Chapman Proposals selected for funding through system will range from $25,000 to ([email protected]—757– this solicitation will be implemented $200,000. Actual funding availability for 627–3823), Maryland’s Eastern Shore/ through a cooperative agreement. this program is contingent upon Fiscal Delaware: Doug Levin Funding of up to $7,000,000 is expected Year 2009 Congressional appropriations. ([email protected]—410–226–5193), to be available for ORI Project Grants in The exact amount of funds that may be Maryland (other than Eastern Shore)/ FY 2009. The NOAA Restoration Center awarded will be determined in pre- Washington, DC: Kevin Schabow (RC) within the Office of Habitat award negotiations between the ([email protected]—410–267– Conservation will administer this grant applicant and NOAA representatives. 3145), Pennsylvania/New York: initiative, and anticipates that typical Publication of this notice does not Shannon Sprague awards will range from $50,000 to oblige NOAA to award any specific ([email protected]—410–267– $250,000. Although a select few may fall project or to obligate any available 5664). outside of this range, project proposals funds. If applicants incur any costs prior Eligibility: Eligible applicants are K- requesting less than $30,000 or greater to an award being made, they do so at through-12 public and independent than $1,000,000 will not be accepted or their own risk of not being reimbursed schools and school systems, institutions reviewed. by the government. Notwithstanding of higher education, community-based Funding Availability: This solicitation verbal or written assurance that may and nonprofit organizations, state or announces that funding of up to have been received, there is no local government agencies, interstate $7,000,000 is expected to be available obligation on the part of NOAA to cover agencies, and Indian tribal governments for Open Rivers Initiative Project Grants pre-award costs unless approved by the in the Chesapeake Bay watershed. The in FY 2009. Actual funding availability

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for this program is contingent upon Silver Spring, MD 20910. ATTN: Open funds and are available within the Fiscal Year 2009 Congressional Rivers Initiative Project Applications. project period stated in the application. appropriations. NOAA anticipates that Information Contacts: For further Federal sources cannot be considered typical project awards will range from information contact Tisa Shostik for matching funds, but can be $50,000 to $250,000; proposals ([email protected]) or Melanie described in the budget narrative to requesting less than $30,000 or more Gange ([email protected]) at demonstrate additional leverage. than $1,000,000 will not be accepted (301) 713–0174. Potential applicants are Applicants are also permitted to apply under this solicitation. NOAA does not invited to contact NOAA Restoration federally negotiated indirect costs in guarantee that sufficient funds will be Center staff before submitting an excess of federal share limits as available to make awards for all application to discuss the applicability described in Section IV. E. 2. ‘‘Indirect proposals. The number of awards to be of project ideas to the goals and Costs’’ of the FFO. Applicants whose made as a result of this solicitation will objectives of ORI. Additional proposals are selected for funding will depend on the number of eligible information on the ORI can be found on be bound by the percentage of cost applications received, the amount of the World Wide Web at http:// sharing reflected in the award document funds requested by the applicants, the www.nmfs.noaa.gov/habitat/restoration. signed by the NOAA Grants Officer. merit and ranking of the proposals, and Eligibility: Eligible applicants are Successful applicants should be the amount of funds made available to institutions of higher education, non- prepared to carefully document the ORI by Congress. NOAA anticipates profits, industry and commercial (for matching contributions, including the that between 10 and 20 awards will be profit) organizations, organizations overall number of volunteers and in- made as a result of this solicitation. The under the jurisdiction of foreign kind participation hours devoted to exact amount of funds that may be governments, international individual barrier removal projects. awarded will be determined in pre- organizations, and state, local and Letters of commitment for any secured award negotiations between the Indian tribal governments whose resources that will be used as match for applicant and NOAA representatives. projects have the potential to benefit an award under this solicitation should Publication of this document does not NOAA trust resources. Applications be submitted as an attachment to the obligate NOAA to award any specific from federal agencies or employees of application, see Section IV.B of the FFO. project or obligate all or any parts of any federal agencies will not be considered. Intergovernmental Review: available funds. Federal agencies are strongly Applications under this initiative are Statutory Authority: The Secretary of encouraged to work with states, non- subject to the provisions of Executive Commerce is authorized under the Fish governmental organizations, national Order 12372, ‘‘Intergovernmental and Wildlife Coordination Act, 16 service clubs or youth corps Review of Federal Programs.’’ Any U.S.C. 661, as amended by the organizations and others that are eligible applicant submitting an application for Reorganization Plan No. 4 of 1970, to to apply. The Department of Commerce/ funding is required to complete item 16 provide grants or cooperative National Oceanic and Atmospheric on SF–424 regarding clearance by the agreements for fisheries habitat Administration (DOC/NOAA) is State Single Point of Contact (SPOC) restoration. The Secretary of Commerce strongly committed to broadening the established as a result of EO 12372. To is also authorized under the Magnuson- participation of historically black find out about and comply with a state’s Stevens Fishery Conservation and colleges and universities, Hispanic- process under EO 12372, the names, Management Reauthorization Act of serving institutions, tribal colleges and addresses and phone numbers of 2006 (H.R. 5946) to provide funding and universities, and institutions that work participating SPOCs are listed in the technical expertise for fisheries and in under-served areas. The ORI Office of Management and Budget’s coastal habitat restoration and to encourages proposals from or involving home page at: http:// promote significant community support any of the above institutions. www.whitehouse.gov/omb/grants/ and volunteer participation in such Cost Sharing Requirements: A major spoc.html. activities. goal of the ORI will be to provide seed Catalog of Federal Domestic money for projects that leverage funds 6. FY 2009 Atlantic Salmon Assistance (CFDA) Number: 11.463, and other contributions from a broad Conservation Grants Habitat Conservation. public and private sector to implement Summary Description: NOAA Application Deadline: Applications locally important barrier removals to Atlantic Salmon Conservation Grants must be submitted through benefit living marine and coastal provide funding to catalyze the www.grants.gov by 11:59 p.m. EDT, resources. To this end, applicants are implementation of locally driven October 31, 2008. If an applicant does encouraged to demonstrate a 1:1 non- projects that address priority needs for not have Internet access, hard copy federal match for ORI funds requested to Atlantic salmon recovery and applications with the SF–424 Form conduct the proposed project. NOAA restoration. Through these grants, bearing an original, ink signature must strongly encourages applicants to NOAA provides funding and technical be postmarked, or provided to a delivery leverage as much investment as assistance to support restoration of service and documented with a receipt, possible. Applicants with less than 1:1 habitat connectivity and function for the by October 31, 2008. No facsimile or match will not be disqualified. benefit of Atlantic salmon within their electronic mail applications will be However, applicants should note that current and historical range in New accepted. cost sharing is an element considered in England. Funded projects have strong Address for Submitting Proposals: Evaluation Criterion #4 ‘‘Project Costs’’ on-the-ground habitat restoration or Applications must be submitted through (Section V.A.4.) in the FFO. Matching protection components that lead to long- www.grants.gov, unless an applicant funds can come from a variety of public term ecological habitat improvements does not have Internet access. In that and private sources and can include in- for Atlantic salmon, and also provide case, hard copies with original kind goods and services and volunteer educational and social benefits related signatures may be sent to: NOAA labor. Applicants are permitted to to Atlantic salmon conservation for Restoration Center (F/HC3), Office of combine contributions from non-federal citizens and their communities. Habitat Conservation, NOAA Fisheries, partners, as long as such contributions Proposals selected for funding through 1315 East-West Highway, Rm. 14718, are not being used to match any other this solicitation will be implemented

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through a cooperative agreement. The service and documented with a receipt, note that cost sharing is an element Atlantic Salmon Conservation Grants by November 14, 2008. No facsimile or considered in Evaluation Criterion #4 initiative is collaboratively managed by electronic mail applications will be ‘‘Project Costs’’ (Section V.A.4.) of the the NOAA Northeast Regional Office accepted. FFO; however matters related to the and the Office of Habitat Conservation. Address for Submitting Proposals: importance and scientific merits of the The NOAA Restoration Center (RC) Applications must be submitted through proposed project comprise the majority within the Office of Habitat www.grants.gov, unless an applicant of the evaluation criteria. Match to Conservation will administer the grant does not have Internet access. In that NOAA funds can come from a variety of competition. Funding of up to case, hard copies with original public and private sources and can $2,500,000 is expected to be available signatures may be sent to: NOAA include in-kind goods and services and for Atlantic Salmon Conservation Grants Restoration Center (F/HC3), Office of volunteer labor. in FY 2009. Typical awards will range Habitat Conservation, NOAA Fisheries, Applicants are permitted to combine from $50,000 to $250,000. Although a 1315 East-West Highway, Rm. 14727, contributions from non-federal partners, select few may fall outside of this Silver Spring, MD 20910. ATTN: as long as such contributions are not typical award range, project proposals Atlantic Salmon Conservation Grant being used to match any other funds requesting less than $30,000 or more Applications. and are available within the project than $500,000 will not be accepted or Information Contacts: For further period stated in the application. Federal reviewed. information contact Cathy Bozek sources cannot be considered for Funding Availability: This solicitation ([email protected]) or Craig matching funds, but can be described in announces that funding of up to Woolcott ([email protected]) at the budget narrative to demonstrate $2,500,000 is expected to be available (301) 713–0174. Potential applicants are additional leverage. Applicants are also for the Atlantic Salmon Conservation invited to contact NOAA staff before permitted to apply federally negotiated Grants in FY 2009. Actual funding submitting an application to discuss the indirect costs in excess of federal share availability for this solicitation is applicability of project ideas to the goals limits as described in Section IV.E. contingent upon Fiscal Year 2009 and objectives of the grant solicitation. ‘‘Funding Restrictions’’ of the FFO. Congressional appropriations. NOAA Eligibility: Eligible applicants are Applicants whose proposals are selected anticipates that typical project awards institutions of higher education, other for funding will be bound by the will range from $50,000 to $250,000; non-profits, industry and commercial percentage of cost sharing reflected in proposals requesting less than $30,000 (for profit) organizations, organizations the award document signed by the or more than $500,000 will not be under the jurisdiction of foreign NOAA Grants Officer. Successful accepted under this solicitation. NOAA governments, international applicants should be prepared to anticipates that between 25 and 40 organizations, and state, local and carefully document matching awards will be made as a result of this Indian tribal governments whose contributions, including the overall solicitation. The exact amount of funds projects have the potential to benefit number of volunteers and in-kind that may be awarded will be determined NOAA trust resources. Applications participation hours devoted to in pre-award negotiations between the from federal agencies or employees of individual restoration projects. Letters applicant and NOAA representatives. federal agencies will not be considered. of commitment for any secured Publication of this document does not Federal agencies are strongly resources that will be used as match for obligate NOAA to award any specific encouraged to work with states, non- an award under this solicitation should project or obligate all or any parts of any governmental organizations, national be submitted as an attachment to the available funds. service clubs or youth corps application, see Section IV.B of the FFO. Statutory Authority: The Secretary of organizations and others that are eligible Intergovernmental Review: Commerce is authorized under the Fish to apply. The Department of Commerce/ Applications under this initiative are and Wildlife Coordination Act, 16 National Oceanic and Atmospheric subject to the provisions of Executive U.S.C. 661, as amended by the Administration (DOC/NOAA) is Order 12372, ‘‘Intergovernmental Reorganization Plan No. 4 of 1970, to strongly committed to broadening the Review of Federal Programs.’’ Any provide grants or cooperative participation of historically black applicant submitting an application for agreements for fisheries habitat colleges and universities, Hispanic- funding is required to complete item 16 restoration. The Secretary of Commerce serving institutions, tribal colleges and on SF–424 regarding clearance by the is also authorized under the Magnuson- universities, and institutions that work State Single Point of Contact (SPOC) Stevens Fishery Conservation and in under-served areas. NOAA established as a result of EO 12372. To Management Reauthorization Act of encourages proposals from or involving find out about and comply with a state’s 2006 (H.R. 5946) to provide funding and any of the above institutions. process under EO 12372, the names, technical expertise for fisheries and Cost Sharing Requirements: A major addresses and phone numbers of coastal habitat restoration and to goal of this grant solicitation will be to participating SPOCs are listed in the promote significant community support provide seed money for projects that Office of Management and Budget’s and volunteer participation in such leverage funds and other contributions home page at: http:// activities. from a broad segment of the public and www.whitehouse.gov/omb/grants/ Catalog of Federal Domestic private sector to implement locally spoc.html. Assistance (CFDA) Number: 11.463, important habitat restoration projects to Habitat Conservation. benefit Atlantic salmon populations. To 7. FY 2009 Community-based Marine Application Deadline: Applications this end, applicants are encouraged to Debris Prevention and Removal Project must be submitted through demonstrate a 1:1 non-federal match for Grants www.grants.gov by 11:59 p.m. EDT, NOAA funds requested to conduct the Summary Description: The NOAA November 14, 2008. If an applicant does proposed project. NOAA strongly Marine Debris Program (MDP), not have Internet access, hard copy encourages applicants to leverage as authorized in the Marine Debris applications with the SF–424 Form much investment as possible, but Research, Prevention, and Reduction bearing an original, ink signature must applicants with little or no match will Act (MDRPR Act, 33 U.S.C. 1951 et be postmarked, or provided to a delivery not be disqualified. Applicants should seq.), provides funding to catalyze the

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implementation of locally driven, all or any part of any available funds. In benefit NOAA trust resources. community-based marine debris FY 2008, 10 applications were Applications from federal agencies or prevention, assessment and removal recommended for funding ranging from employees of federal agencies will not projects that will benefit coastal habitat, $39,000 to $175,000, for a total grant be considered. Federal agencies are waterways, and NOAA trust resources. competition funding level of strongly encouraged to work with states, Projects funded through the MDP have approximately $900,000. This is the non-governmental organizations, strong on-the-ground habitat fourth year of the Community-based national service clubs or youth corps components involving the removal of Marine Debris Prevention and Removal organizations and others that are eligible marine debris and derelict fishing gear, Project Grants, a grant partnership to apply. The Department of Commerce/ as well as activities that provide social between the NOAA Marine Debris National Oceanic and Atmospheric benefits for people and their Program and NOAA Restoration Center. Administration (DOC/NOAA) is communities in addition to long-term These grants are funded through the strongly committed to broadening the ecological habitat improvements for NOAA Marine Debris Program with participation of historically black NOAA trust resources. Through this appropriations to the Office of Response colleges and universities, Hispanic solicitation the MDP identifies marine and Restoration, National Ocean Service serving institutions, tribal colleges and debris prevention, assessment and for this purpose. The NOAA Restoration universities, and institutions that work removal projects, strengthens the Center will administer this grants in under-served areas. The MDP development and implementation of program in the same manner that the encourages proposals involving any of habitat restoration through the removal Community-based Restoration Program the above institutions. of marine debris within communities, is conducted. Cost Sharing Requirements: A major Statutory Authority: The and fosters awareness of the effects of goal of the MDP is to provide seed Administrator of the National Oceanic marine debris to further the money to projects that leverage funds and Atmospheric Administration is conservation of living marine resource and other contributions from a broad authorized under the MDRPR Act to habitats across a wide geographic area. segment of the public and private sector provide grants or cooperative Proposals selected for funding through to implement locally important marine agreements to identify, determine this solicitation will be implemented debris prevention and removal activities sources of, assess, reduce, and prevent through a cooperative agreement. to benefit living marine resources. To marine debris and its adverse impacts Funding of up to $2,000,000 is expected this end, the MDRPR Act requires to be available for Community-based on the marine environment and navigation safety. applicants to demonstrate a minimum Marine Debris Prevention and Removal 1:1 non-Federal match for MDP funds Project Grants in FY 2009. The NOAA Catalog of Federal Domestic Assistance (CFDA) Number: 11.463, requested to conduct the proposed MDP anticipates that typical awards Habitat Conservation. project. In addition to formal match, will range from $15,000 to $150,000. Application Deadline: Applications NOAA strongly encourages applicants Funding Availability: This solicitation must be submitted through to leverage as much investment as announces that funding of up to www.grants.gov by 11:59 p.m. EDT, possible. However, the MDRPR Act $2,000,000 is expected to be available October 31, 2008. If an applicant does allows the Administrator to waive all or for Community-based Marine not have Internet access, hard copy part of the matching requirement if the Prevention and Removal Project Grants applications with the SF–424 Form applicant can demonstrate that: (1) No in FY 2009. Actual funding availability bearing an original, ink signature must reasonable means are available through for this program is contingent upon be postmarked, or provided to a delivery which applicants can meet the matching Fiscal Year 2009 Congressional service and documented with a receipt, requirement and (2) the probable benefit appropriations. The NOAA Restoration by October 31, 2008. No facsimile or of such project outweighs the public Center anticipates that typical project electronic mail applications will be interest in such matching requirement. awards will range from $15,000 to accepted. In addition, the MDP may waive any $150,000; NOAA will not accept Address for Submitting Proposals: requirement for matching funds by an proposals for under $15,000 or Applications must be submitted through Insular Area (Virgin Islands, Guam, proposals for over $250,000 under this www.grants.gov, unless an applicant American Samoa, the Trust Territory of solicitation. There is no guarantee that does not have Internet access. In that the Pacific Islands, and the Government sufficient funds will be available to case, hard copies with original of the Northern Mariana Islands). Under make awards for all proposals. The signatures may be sent to: NOAA 48 U.S.C. 10.1469a(d.ii.i), any number of awards to be made as a result Restoration Center (F/HC3), department or agency may waive any of this solicitation will depend on the Community-based Restoration Program, requirement for matching funds number of eligible applications NOAA Fisheries, 1315 East-West otherwise required by law to be received, the amount of funds requested Highway, Rm. 14727, Silver Spring, MD provided by the Insular Area involved. for initiating marine debris removal 20910. ATTN: MDP Project All applicants should note that cost projects by the applicants, the merit and Applications. sharing is an element considered in ranking of the proposals, and the Information Contacts: For further Evaluation Criterion #4, ‘‘Project Costs’’ amount of funds made available to the information contact David Landsman at of the FFO. Match can come from a MDP by Congress. The NOAA 301–713–0174 or by e-mail at variety of public and private sources Restoration Center anticipates that [email protected]. and can include in-kind goods and between 10 and 25 awards will be made Eligibility: Eligible applicants are services such as private boat use and as a result of this solicitation. The exact institutions of higher education, other volunteer labor. Applicants are amount of funds that may be awarded non-profits, commercial (for profit) permitted to combine contributions will be determined in pre-award organizations, organizations under the from non-federal partners, as long as negotiations between the applicant and jurisdiction of foreign governments, such contributions are not being used to NOAA representatives. Publication of international organizations, and state, match any other funds and are available this document does not obligate NOAA local and Indian tribal governments within the project period stated in the to award any specific project or obligate whose projects have the potential to application. Federal sources cannot be

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considered for matching funds, but can www.whitehouse.gov/omb/grants/ Information Contacts: For questions be described in the budget narrative to spoc.html. regarding the application process, you may contact: Robert Sadler, State/ demonstrate additional leverage. 8. Marine Fisheries Initiative (MARFIN) Applicants are permitted to combine Federal Liaison Branch, (727) 824–5324, contributions from multiple non-federal Summary Description: The National or [email protected]. partners in order to meet the 1:1 match Marine Fisheries Service (NMFS), Eligibility: Eligible applicants may be recommendation, as long as such Southeast Region, is seeking proposals institutions of higher education, contributions are not being used to under the Marine Fisheries Initiative nonprofits, commercial organizations, match any other funds. Applicants are Program (MARFIN), for research and individuals, state, local and Indian also permitted to apply federally development projects that optimize the tribal governments. Federal agencies or use of fisheries in the Gulf of Mexico negotiated indirect costs in excess of institutions are not eligible. Foreign and off the South Atlantic states of federal share limits as described in governments, organizations under the North Carolina, South Carolina, Georgia, Section IV. E. 2. ‘‘Indirect Costs’’ of the jurisdiction of foreign governments, and and Florida involving the U.S. fishing international organizations are excluded FFO. Applicants should also note that industry (recreational and commercial), for purposes of this solicitation since the following activities, in general, will including fishery biology, resource the objective of the MARFIN program is not be considered as match under assessment, socioeconomic assessment, to optimize research and development project awards: (1) Activities that management and conservation, selected benefits from U.S. marine fishery constitute legally required mitigation for harvesting methods, and fish handling resources. the adverse effects of an activity and processing. This program addresses Cost Sharing Requirements: Cost- regulated or otherwise governed by NOAA’s mission goal to ‘‘Protect, sharing is not required for this program. local, state or Federal law; (2) activities Restore, and Manage the Use of Coastal Intergovernmental Review: that constitute restoration for natural and Ocean Resources Through an Applications submitted by state and resource damages under Federal, state Ecosystem Approach to Management.’’ local governments are subject to the or local law; and (3) activities that are Funding Availability: Approximately provisions of Executive Order 12372, required by a separate consent decree, $2.0 million may be available in fiscal Intergovernmental Review of Federal court order, statute or regulation. year (FY) 2009 for projects. This amount Programs. Any applicant submitting an However, the MDRPR Act allows the includes possible in-house projects. application for funding is required to Administrator to authorize, as Actual funding availability for this complete item 16 on SF–424 regarding appropriate, the non-Federal share of program is contingent upon Fiscal Year clearance by the State Single Point of the cost of a project to include money 2009 Congressional appropriations. The Contact (SPOC) established as a result of paid pursuant to, or the value of any in- NMFS Southeast Regional Office EO 12372. To find out about and kind service performed under, an anticipates awarding projects that will comply with a State’s process under EO administrative order on consent or range from $25,000 to $300,000. The 12372, the names, addresses and phone judicial consent decree that will remove average award is $150,000. Publication numbers of participating SPOCs are or prevent marine debris. Applicants of this notice does not obligate NMFS to listed in the Office of Management and whose proposals are selected for award any specific grant or cooperative Budget’s home page at: http:// funding will be bound by the percentage agreement or any of the available funds. www.whitehouse.gov/omb/grants/ of cost sharing reflected in the award Project proposals accepted for funding spoc.html. document signed by the NOAA Grants with a project period over one year do 9. NOAA General Coral Reef Officer. Successful applicants should be not have to compete for the additional Conservation Grants Program prepared to carefully document years of funding. However, funding for matching contributions, including the the additional years is contingent upon Summary Description: The NOAA Coral Reef Conservation Program/ names of participating volunteers and the availability of funds and satisfactory General Coral Reef Conservation Grants the overall number of volunteer or performance and is at the sole discretion Program (GCRCGP) provides funding to community participation hours devoted of the agency. institutions of higher education, non- to individual marine debris prevention Statutory Authority: Authority for the profit organizations, commercial or removal projects. Letters of Marine Fisheries Initiative Program is organizations, Freely Associated State commitment for any secured resources provided by the following: 15 U.S.C. government agencies, and local and expected to be used as match for an 713c–3(d). Indian tribal governments to support award should be submitted as an Catalog of Federal Domestic coral reef conservation projects in the attachment to the application. Assistance (CFDA) Number: 11.433, Marine Fisheries Initiative. United States and the Freely Associated Intergovernmental Review: Application Deadline: Applications States in the Pacific, as authorized Applications submitted by state and must be received by 5 p.m., Eastern under the Coral Reef Conservation Act local governments are subject to the Daylight Time on August 11, 2008 to be of 2000. Projects funded through the provisions of Executive Order 12372, considered fur funding. Applications GCRCGP support on-the ground efforts ‘‘Intergovernmental Review of Federal received after the deadline will be that: (1) Help preserve, sustain and Programs.’’ Any applicant submitting an rejected/returned to the sender without restore the condition of coral reef application for funding is required to further consideration. ecosystems, (2) promote the wise complete item 16 on SF–424 regarding Address for Submitting Proposals: management and sustainable use of clearance by the State Single Point of Applications must be submitted through coral reef resources, (3) increase public Contact (SPOC) established as a result of www.grants.gov, unless an applicant knowledge and awareness of coral reef EO 12372. To find out about and does not have Internet access. In that ecosystems and issues regarding their comply with a State’s process under EO case, hard copies with original conservation and (4) develop sound 12372, the names, addresses and phone signatures may be sent to: National scientific information on the condition numbers of participating SPOCs are Marine Fisheries Service, State/Federal of coral reef ecosystems and the threats listed in the Office of Management and Liaison Branch, 263 13th Avenue South, to such ecosystems. Projects should Budget’s home page at: http:// St. Petersburg, FL 33701. complement and fill gaps in state,

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territorial and commonwealth coral reef Catalog of Federal Domestic from additional non-Federal partners in programs, emphasize community-based Assistance (CFDA) Number: 11.463, order to meet the 1:1 match expected, as conservation, or address local action Habitat Conservation. long as such contributions are not being strategy priorities. Application Deadline: Proposals must used to match any other funds. Federal be received by 5 p.m. Eastern Time on Proposals selected for funding funds may not be used as matching November 3, 2008. funds. The nature of the contribution through this solicitation require a 1:1 Address for Submitting Proposals: match and will be implemented through (cash versus in-kind) and the amount of Applications must be submitted through matching funds will be taken into a grant. Funding of up to $600,000 is www.grants.gov. If an applicant does not consideration in the review process, expected to be available for GCRCGP in have Internet access, hard copy with cash being the preferred method of FY 2009. These funds will be divided applications with the SF–424 Form contribution. Applicants with less than approximately equally among the U.S. bearing an original, ink signature must Pacific and Atlantic to maintain be postmarked November 3, 2008 and 1:1 match will not be disqualified, if geographic balance, as outlined in the sent to: Jennifer Koss, NOAA Coral Reef they provide justification for a lower Coral Reef Conservation Act of 2000. Conservation Program, NOAA Fisheries, amount of matching funds, however, Awards will range from $15,000– Office of Habitat Conservation (F/HC), applicants should note that cost sharing $50,000. 1315 East-West Highway, Silver Spring, is an element considered in Evaluation Funding Availability: NOAA MD 20910. ATTN: CRCGP Project Criterion d. Project Costs of the FFO. As announces the availability of up to Applications. per section 6403(b)(2) of the Coral Reef $600,000 of Federal assistance may be Information Contacts: Technical point Conservation Act of 2000, the NOAA available in FY 2009 for the GCRCGP to of contact for NOAA Coral Reef Administrator may waive all or part of support financial assistance awards for Conservation Grant Program/General the matching requirement if the coral conservation activities. Proposals Grants is Jennifer Koss, 301–713–3459, Administrator determines that the can be submitted for a minimum of extension 195 or E-mail at project meets the following two $15,000 to a maximum of $50,000; [email protected]. requirements: (1) No reasonable means NOAA will not accept proposals Eligibility: Institutions of higher are available through which an requesting over $50,000 of Federal education, non-profit organizations, applicant can meet the matching funds. There is no limit on the number commercial organizations, local and requirement; and (2) The probable of applications that can be submitted by Indian tribal governments and Freely benefit of such project outweighs the Associated State Government Agencies the same applicant during the 2009 public interest in such matching can apply for funding under the competitive grant cycle. However, requirement. In the case of a waiver GCRCGP. U.S. federal, state, territory, multiple applications submitted by the request, the applicant must provide a and commonwealth governments and same applicant must clearly identify detailed justification at the time the Regional Fishery Management Councils different projects and must be are not eligible for this program. NOAA proposal is submitted explaining the successful in the competitive review employees are not allowed to help in need for the waiver including attempts process. The number of awards made as the preparation of applications or write to obtain sources of matching funds, a result of this solicitation will depend letters of support for any application. how the benefit of the project outweighs on the number of eligible applications NOAA staff are available to provide the public interest in providing match, received, the amount of funds requested information on programmatic goals and and any other extenuating for each project, the merit and ranking objectives, ongoing coral reef circumstances preventing the of the proposals, and the amount of conservation programs, Regional availability of match. Notwithstanding funds made available to the Program by funding priorities, and, along with other any other provisions herein, and in Congress. In addition, funding will be Federal Program Officers, can provide accordance with 48 U.S.C. 1469a(d), the divided between the U.S. Pacific and information on application procedures Program shall waive any requirement U.S. Atlantic to meet requirements for and completion of required forms. For for local matching funds for any project geographic distribution of funds, as activities that involve collaboration with under $200,000 (including in-kind described in the Coral Reef current NOAA programs or staff, NOAA contribution) to the governments of Conservation Act. Attempts will also be employees must provide a letter Insular Areas, defined as the made to fund one or more projects in verifying that they are collaborating jurisdictions of the U.S. Virgin Islands, each jurisdiction, provided that the with the project. Federal employee Guam, American Samoa, and the project addresses priorities outlined travel and salaries are not allowable above, it is identified as having Commonwealth of the Northern Mariana costs under this program. Islands. Eligible applicants choosing to sufficient merit, and it meets all other Cost Sharing Requirements: As per requirements as stipulated in this apply 48 U.S.C. 1469a(d) must include section 6403(b)(1) of the Coral Reef a letter requesting a waiver that solicitation. The funds have not yet Conservation Act of 2000, Federal funds been appropriated for this program, and demonstrates that their project meets for any coral conservation project the requirements of 48 U.S.C. 1469a(d). there is no guarantee that sufficient funded under this Program may not funds will be available to make awards exceed 50 percent of the total cost of the Intergovernmental Review: for all qualified projects. Publication of project. All GCRCGP projects submitted Applications under this Program are this notice does not oblige NOAA to to this program require a 1:1 match subject to Executive Order 12372, award any specific project or to obligate obtained from non-Federal sources. Intergovernmental Review of Federal any available funds. Applicants must specify in their Programs. Any applicant submitting an Statutory Authority: Authority for the proposal the source of the match and application for funding is required to NOAA Coral Reef Conservation Grant provide letters of commitment to complete item 16 on SF–424 regarding Program is provided by Section 6403 confirm stated match contributions. The clearance by the State Single Point of (Coral Reef Conservation Program) of match can include in-kind contributions Contact (SPOC) established as a result of the Coral Reef Conservation Act of 2000 and other non-cash support. Applicants EO 12372. http://www.whitehouse.gov/ (16 U.S.C. 6401 et seq.). are permitted to combine contributions omb/grants/spoc.html.

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10. Projects To Improve or Amend Coral Atlantic, the Gulf of Mexico, and the Cost Sharing Requirements: No cost Reef Fishery Management Plans Caribbean. The exact amount of funds sharing or matching is required under Summary Description: The NOAA that may be awarded will be determined this program. The Administrator has Coral Reef Conservation Grant Program/ in pre-award negotiations between the waived the matching requirement for Projects to Improve or Amend Coral applicant and NOAA representatives. the Fishery Management Councils as Reef Fishery Management Plans Activities approved by NOAA will be discussed in Section VII of the Coral (CRFMPGP) provides funding to the awarded as new cooperative agreements Reef Conservation Grant Program Regional Fishery Management Councils through the NMFS Office of Habitat Implementation Guidelines (Federal for projects to conserve and manage Conservation (HC). The number of Register Vol. 67, No. 76, page 19396, coral reef fisheries, as authorized under awards made as a result of this Friday, April 19, 2002). This waiver is the Coral Reef Conservation Act of 2000. solicitation will depend on the number based on the fact that the Councils are Projects funded through the CRFMPGP of eligible applications received, the funded solely by awards from the U.S. are for activities that: (1) Provide better amount of funds requested for each Federal Government, and therefore, do scientific information on the status of project, the merit and ranking of the not have the ability to generate coral reef fisheries resources, critical proposals, and the amount of funds matching funds. Intergovernmental Review: habitats of importance to coral reef made available to the Program by Applications under this CRFMPGP are fishes, and the impacts of fishing on Congress. The funds have not yet been appropriated for this program, and there subject to Executive Order 12372, these species and habitats; (2) identify is no guarantee that sufficient funds will Intergovernmental Review of Federal new management approaches that be available to make awards for all Programs. Specific information protect coral reef biodiversity and qualified projects. Publication of this regarding Intergovernmental Review can ecosystem function through regulation notice does not oblige NOAA to award be found above in Section IV. of fishing and other extractive uses; and any specific project or to obligate any Application and Submission (3) incorporate conservation and available funds. Information, D. Intergovernmental sustainable management measures into Statutory Authority: Authority for the Review of the FFO. existing or new Federal fishery NOAA Coral Reef Conservation Grant 11. Protected Species Cooperative management plans for coral reef species. Program is provided by Section 6403 Conservation Proposals selected for funding through (Coral Reef Conservation Program) of this solicitation will be implemented the Coral Reef Conservation Act of 2000 Summary Description: States play an through a Cooperative Agreement. The (16 U.S.C. 6401 et seq.). essential role in the conservation and role of NOAA in the CRFMPGP is to Catalog of Federal Domestic recovery of endangered and threatened help identify potential projects that Assistance (CFDA) Number: 11.441, species. Protected species under the reduce impacts of fishing on coral reef Regional Fishery Management Councils. National Marine Fisheries Service’s ecosystems, strengthen the development Application Deadline: Proposals must (NMFS) jurisdiction may spend all or a and implementation of the projects, and be received by 5 p.m. eastern time on part of their life-cycles in state waters, assist in coordination of these efforts November 3, 2008. and success in conserving these species with Federal, state, territory or Address for Submitting Proposals: will depend in large part on working commonwealth management authorities Applications must be submitted through cooperatively with State agencies. The and various coral reef user groups. www.grants.gov, unless an applicant NMFS is authorized to provide Federal Funding up to $1,050,000 is expected to does not have Internet access. In that assistance to eligible States to support be available for CRFMPGP Cooperative case, hard copies with original the development of conservation Agreements in FY 2009. These funds signatures may be sent to: Jennifer Koss, programs for marine and anadromous will be divided equally among the NOAA Coral Reef Conservation species that reside within that State. Atlantic and Pacific to maintain the Program, NOAA Fisheries, Office of This assistance, provided in the form of geographic split required by the Act. Habitat Conservation (F/HC1), 1315 grants through the Protected Species The NOAA Coral Reef Conservation East-West Highway, Silver Spring, MD Cooperative Conservation program, can Program anticipates that awards will 20910. ATTN: CRCGP Project be used to support conservation of range from $175,000–$525,000. Applications. Electronic copies of the endangered, threatened, and candidate Funding Availability: This solicitation project narrative and budget narrative species, as well as post-delisting announces that approximately are requested when submitting by mail monitoring of recovered species. $1,050,000 is expected to be available ([email protected]), however E-mail Funded activities may include for cooperative agreements in support of applications submitted without a mailed development and implementation of coral reef conservation activities for hard copy with appropriate postal date management plans, scientific research, Projects to Improve or Amend Coral stamp will not be accepted. and public education and outreach; Reef Fishery Management Plans Information Contacts: Technical point projects should address priority actions (CRFMPGP) in FY 2009. Actual funding of contact for NOAA Coral Reef identified in either an ESA Recovery availability for this program is Conservation Grant Program/Projects to Plan or a State’s ESA section 6 contingent upon Fiscal Year 2009 Improve or Amend Coral Reef Fishery conservation program. Projects focusing Congressional appropriations. The Management Plans Grants Program is on listed Pacific salmon will not be NOAA Coral reef Conservation Program Jennifer Koss, 301–713–3459, extension considered for funding under this grant anticipates that typical project awards 195 or E-mail at program; such projects may be funded will range from about $175,000 to [email protected]. through the Pacific Coastal Salmon $525,000; NOAA will not accept Eligibility: Eligible applicants are Recovery Fund. Any State agency that proposals for over $525,000 under this limited to the Western Pacific Regional has entered into an agreement with the solicitation. Equal funding will be Fishery Management Council, the South NMFS pursuant to section 6(c) of the provided to the Atlantic and Pacific, up Atlantic Fishery Management Council, ESA is eligible to apply to this grant to a maximum of $525,000 for activities the Gulf of Mexico Fishery Management program. This document describes how in the Western Pacific, and a maximum Council, and the Caribbean Fishery to submit proposals for funding in fiscal of $525,000 for activities in the South Management Council. year (FY) 2009 and how NMFS will

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determine which proposals will be [email protected]. You may also reflect the work and responsibilities to funded; the document should be read in contact one of the following people in be carried out by each of the cooperating its entirety, as information may have your region for further guidance: Karla states. Pursuant to Public Law 95–134, changed from the previous year. Reece, Southeast Regional Office, Title V, section 501 (1977), as amended Funding Availability: This solicitation Protected Resources Division (48 U.S.C. 1469a) the following Insular announces that a minimum of $330K ([email protected], 727–824–5312); Areas are exempt from this matching and a maximum of $780K may be Amanda Johnson, Northeast Regional requirement: American Samoa, Guam, available for distribution under the FY Office, Protected Resources Division the Virgin Islands, and the Northern 2009 PSCC program, in award amounts ([email protected], 978–281– Mariana Islands. The non-Federal cost to be determined by the proposals and 9300 x6513); Jayne LeFors, Pacific share should be identified in the project available funds; actual funding Islands Regional Office, Protected budget (and on the SF–424A) and may availability for this program is Resources Division include in-kind contributions according contingent upon Fiscal Year 2009 ([email protected], 808–944– to the regulations at 15 CFR part 24. Congressional appropriations. As funds 2277); Scott Rumsey, Northwest Intergovernmental Review: have not yet been appropriated for this Regional Office, Fish and Wildlife Applications under this program are program, there is no guarantee that Administrator ([email protected], subject to Executive Order 12372, sufficient funds will be available to 503–872–2791). ‘‘Intergovernmental Review of Federal make awards for all qualified projects. Eligibility: Eligible applicants are state Programs.’’ Publication of this notice does not agencies that have entered into an oblige NOAA to award any specific agreement with NMFS pursuant to 12. Saltonstall-Kennedy Grant Program grant proposal or to obligate any section 6(c) of the ESA. The terms (FY 2009) available funds. There is no set ‘‘state’’ and ‘‘state agency’’ are used as Summary Description: The minimum or maximum amount, within defined in section 3 of the ESA (16 Saltonstall-Kennedy Act established a the available funding, for any award. U.S.C. 1532). Currently eligible state fund (known as the S–K fund) that the There is also no limit on the number of agencies are from the following states: Secretary of Commerce uses to provide applications that can be submitted by Delaware, Florida, Georgia, Hawaii, grants or cooperative agreements for the same applicant. Multiple Maine, Maryland, Massachusetts, New fisheries research and development applications submitted by the same Jersey, New York, North Carolina, projects addressing aspects of U.S. applicant must clearly identify distinct Puerto Rico, South Carolina, the U.S. fisheries, including, but not limited to, projects, and single applications should Virgin Islands, and Washington. Any harvesting, processing, marketing, and not include multiple, unrelated projects. state agency that enters into a section associated infrastructures. U.S. fisheries Project proposals accepted for funding 6(c) agreement with NMFS prior to the include any fishery, commercial or with a project period over one year do application deadline (September 17, recreational, that is, or may be, engaged not have to compete for the additional 2008) is also eligible to apply. States in by citizens or nationals of the United years of funding. However, funding for may apply for funding to conduct work States, or citizens of the Northern the additional years is contingent upon on federally listed species that are Mariana Islands (NMI), the Republic of the availability of funds and satisfactory included in their ESA section 6 the Marshall Islands, Republic of Palau, performance and is at the sole discretion agreement and any species that has and the Federated States of Micronesia. of the agency. become a candidate species by the grant Statutory Authority: 16 U.S.C. 661 et application deadline. States may not Funding Availability: Funding is seq.; 1535. apply for funding to conduct work on contingent upon availability of Federal Catalog of Federal Domestic federally listed species that are not allocations. The S–K program has Assistance (CFDA) Number: 11.472, covered in their ESA section 6 sought funding for $5 million in grant Unallied Science Program. agreement unless said species is added awards. We anticipate awarding 20–25 Application Deadline: Proposals to the agreement by the grant grants of approximately $100,000 to submitted through Grants.gov must be application deadline. Federal agencies $250,000 each. Applicants are hereby received by 5 p.m. Eastern Daylight or institutions are not eligible to receive given notice that funds have not yet Time on September 17, 2008; proposals Federal assistance under this notice. In been allocated for this program. In no submitted by mail must be postmarked addition, NOAA and NMFS employees event will NOAA or the Department of by September 17, 2008. shall not provide assistance in writing Commerce be responsible for proposal Address for Submitting Proposals: applications, write letters of support for preparation costs if this program fails to Applications must be submitted through any application, or otherwise confer any receive funding or is cancelled because www.grants.gov, unless an applicant unfair advantage on a particular of other agency priorities. Publication of does not have Internet access. In that application. However, for activities this notice does not obligate NOAA to case, 3 hard copies with original involving collaboration with current award any specific project or to obligate signatures may be sent to: NMFS Office NMFS programs, NMFS employees can any available funds. You should not of Protected Resources, Attn: Lisa write a letter verifying that they are initiate your project in expectation of Manning, 1315 East-West Highway, collaborating with the project. Federal funding until you receive a SSMC3, Silver Spring, MD 20910. Paper Cost Sharing Requirements: In grant award document signed by an applications should not be bound in any accordance with section 6(d) of the ESA, authorized NOAA official. If one incurs manner. all proposals submitted must include a any costs prior to receiving an award Information Contacts: If you have any minimum non-Federal cost share of 25 agreement signed by an authorized questions regarding this proposal percent of the total budget if the NOAA official, one would do so solely solicitation, please contact Lisa proposal involves a single state. If a at one’s own risk of these costs not Manning at the NOAA/NMFS/Office of proposal involves collaboration of two being included under the award. Protected Resources, Endangered or more states, the minimum non- Recipients and subrecipients are subject Species Division, 1315 East-West Federal cost share decreases to 10 to all Federal laws and agency policies, Highway, Silver Spring, MD 20910, by percent of the total project budget. The regulations and procedures applicable phone at 301–713–1401, or by E-mail at project proposal and budget should to Federal financial assistance awards.

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Statutory Authority: Authority for the participation of Minority Serving marine mammals as participants in the Saltonstall-Kennedy Grant Program is Institutions (MSIs), which include national Marine Mammal Stranding provided under the Saltonstall-Kennedy Historically Black Colleges and Network. The John H. Prescott Marine Act (S–K Act), as amended (15 U.S.C. Universities, Hispanic Serving Mammal Rescue Assistance Grant 713c–3). Institutions, and Tribal Colleges and Program is conducted by NOAA to Catalog of Federal Domestic Universities, in our programs, including provide Federal assistance to eligible Assistance (CFDA) Number: 11.427, S–K. Therefore, we encourage all members of the Stranding Network to: Fisheries Development and Utilization applicants to include meaningful (1) Support basic needs of organizations Research and Development Grants and participation of MSIs. We encourage for response, treatment, and data Cooperative Agreements Program. applications from members of the collection from living and dead Application Deadline: Applications fishing community, and applications stranded marine mammals; (2) fund must be received by 5 p.m., Eastern that involve fishing community scientific research objectives designed Time on October 1, 2008. Applications cooperation and participation. We will to answer questions about marine received after the deadline will be consider the extent of fishing mammal strandings, health, or rejected/returned to the sender without community involvement when rehabilitation techniques utilizing data further consideration. No facsimile or evaluating the potential benefit of from living and dead stranded marine electronic mail applications will be funding a proposal. You are not eligible mammals; and, (3) support facility accepted. to submit an application under this operations directly related to the Address for Submitting Proposals: program if you are an employee of any recovery or treatment of stranded Applications must be submitted through Federal agency; a Fishery Management marine mammals and collection of data www.grants.gov, unless an applicant Council; or an employee of a Council. from living or dead stranded marine does not have Internet access. In that However, Council members who are not mammals. case, hard copies with original Federal employees can submit an signatures may be sent to: Mr. Steve Funding Availability: This solicitation application to the S–K Program. announces that approximately $4M may Aguzin, S–K Program Manager, NOAA/ Cost Sharing Requirements: We are be available for distribution under the NMFS (F/MB5), 1315 East-West requiring cost sharing in order to FY 2009 annual competitive Prescott Highway, Room 13134, Silver Spring, leverage the limited funds available for Program. Actual funding availability for MD 20910–3282. this program and to encourage this program is contingent upon FY Information Contacts: The point of partnerships among government, contact is: Steve Aguzin, S–K Program industry, and academia to address the 2009 Congressional appropriations. Manager, NOAA/NMFS (F/MB5), 1315 needs of fishing communities. You must Applicants are hereby given notice that East-West Highway, Room 13134, Silver provide a minimum cost share of 10 these funds have not yet been Spring, MD 20910–3282; or by Phone at percent of total project costs, but your appropriated for this program, and (301) 713–2358 ext. 215, or fax at (301) cost share must not exceed 50 percent therefore exact dollar amounts cannot 713–1306, or via E-mail at of total costs. be given. There is no guarantee that [email protected]. Intergovernmental Review: sufficient funds will be available to Eligibility: You are eligible to apply Applications submitted by state and make awards for all qualified projects. for a grant or a cooperative agreement local governments are subject to the The maximum Federal award for each under the Saltonstall-Kennedy Grant provisions of Executive Order 12372, grant cannot exceed $100,000, as stated Program if: 1. You are a citizen or ‘‘Intergovernmental Review of Federal in the legislative language (16 U.S.C. national of the United States; 2. You are Programs.’’ Any applicant submitting an 1421f–1). Funds will be set aside from a citizen of the Northern Mariana application for funding is required to the annual appropriation to provide for Islands (NMI), or an individual who complete item 16 on SF–424 regarding emergency assistance awards to eligible qualifies as such under section 8 of the clearance by the State Single Point of stranding network participants. These Schedule on Transitional Matters Contact (SPOC) established as a result of emergency funds will be available until attached to the constitution of the NMI; EO 12372. To find out about and expended. There is no limit on the 3. You are a citizen of the Republic of comply with a State’s process under EO number of proposals that can be the Marshall Islands, Republic of Palau, 12372, the names, addresses and phone submitted by the same stranding or the Federated States of Micronesia; or numbers of participating SPOCs are network participant during the 2009 4. You represent a corporation, listed in the Office of Management and competitive grant cycle. However, since partnership, association, or other non- Budget’s home page at: http:// there are insufficient funds to award Federal entity, non-profit or otherwise www.whitehouse.gov/omb/grants/ financial assistance to every member of (including Indian tribes), that is based spoc.html. the network, organizations will receive in the United States or NMI, within the no more than two awards per year as meaning of section 2 of the Shipping 13. Prescott 2009 part of the competitive program. The Act, 1916, as amended (46 U.S.C. app. Summary Description: The Marine two awards must be for projects that are 802). We support cultural and gender Mammal Health and Stranding clearly separate in their objectives, diversity in our programs and encourage Response Program of the National goals, and budget requests and must be women and minority individuals and Marine Fisheries Service is charged successful in the competitive review groups to submit applications. under the Marine Mammal Protection process. The two projects should be Furthermore, we recognize the interest Act with facilitating the collection and completely independent (i.e., you will of the Secretaries of Commerce and dissemination of reference data on be able to carry out either proposal even Interior in defining appropriate fisheries stranded marine mammals and health if the other does not receive funding). In policies and programs that meet the trends of marine mammal populations addition, eligible researchers applying needs of the U.S. insular areas, so we in the wild. Through cooperation with as Principal Investigators, but not also encourage applications from NMFS Regional Coordinators, local independently authorized under the individuals, government entities, and organizations and state and local MMPA Section 112(c), the MMPA businesses in U.S. insular areas. We are government officials respond to and Section 109(h) (50 CFR 216.22), or the strongly committed to broadening the collect valuable data from stranded National Contingency Plan for Response

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to Marine Mammal Unusual Mortality under this Program: (1) Stranding organizations and individuals must Events, can receive no more than one Agreement (SA) holders or their meet the following eligibility criteria award per year as part of the designee organizations; (2) holders of specific to their category of competitive cycle. researcher authorization letters issued participation: (1) SA Holder Participant Authorized stranding network by a NMFS Regional Administrator; or SA Designee Participant. SA participants and researchers may be and, (3) state, local, eligible federal participants must be holding a current identified as Co-Investigators or government or tribal employees or (active) SA for stranding response collaborators on as many proposals as personnel. All applicants must currently (either live or dead animal response) or needed as long as no more than 100 be: (1) Active as an authorized rehabilitation from a NMFS Regional percent of their time is funded through participant or researcher in the marine Administrator or the Assistant the Prescott Program. In addition, mammal stranding network; (2) In good Administrator. SA Designee participants Department of Commerce (DOC) and standing and; (3) Not a current full or must be holding a current (active) letter Department of Interior (DOI) employees part-time employee or contractor of of designation from a NMFS SA holder, may act as collaborators if they are DOC or DOI. To be ‘‘in good standing’’, and designees cannot request responsible for performing analyses on you must meet all of the following authorization for activities beyond the data or samples collected under a criteria: (1) If the applicant is a scope of what is authorized by the SA Prescott award. See section I.F. of the designated Principal Investigator of an to the letter holder. (2) Researcher FFO for Eligibility requirements. If an MMPA or Endangered Species Act Participant. Researcher participants application for a financial assistance (ESA) scientific research or must be holding a current (active) award is selected for funding, NOAA/ enhancement permit holder, the authorizing letter for the proposed NMFS has no obligation to provide any applicant must have fulfilled all permit award period from the NMFS Regional additional funding in connection with requirements, including but not limited Administrator or the Assistant that award in subsequent years beyond to submission of all reports, and must Administrator to salvage stranded the award period. If one incurs any costs have no pending or outstanding marine mammal specimens and parts or prior to receiving an award agreement enforcement actions under the MMPA samples for the purpose of utilization in signed by an authorized NOAA official, or ESA. (2) Have complied with the scientific research (50 CFR 216.22). one would do so solely at one’s own risk terms and responsibilities of the Persons authorized to salvage dead of these costs not being included under appropriate SA, MMPA Section 109(h) marine mammal specimens under this the award. Notwithstanding any verbal authorization, or researcher section must register the salvage with or written assurance that applicants authorization letter. This includes, but the appropriate NMFS Regional Office have received, pre-award costs are not is not limited to, the following reporting within 30 days after the taking occurs. allowed under the award unless the requirements: (a) Timely reporting of Researchers who are authorized under Grants Officer approves them in strandings to NMFS; (b) timely an MMPA/ESA Scientific Research accordance with 15 CFR 14.28. Statutory Authority: 16 U.S.C. submission of complete reports on basic Permit must still obtain an authorizing 1421f–1. or Level A data to the Regional letter from the Regional Stranding Catalog of Federal Domestic Coordinator (includes investigator’s Coordinator in order to use parts or Assistance (CFDA) Number: 11.439, name, species, stranding location, specimens from stranded animals. Marine Mammal Data Program. number of animals, date and time of Researcher participants that would not Application Deadline: Proposals must stranding and recovery, length and require an authorizing letter from the be postmarked or submitted online by condition, and sex; marine mammal NMFS Regional Administrator (i.e., they 11:59 p.m. EDT on Wednesday, October parts retention or transfer; annual will be working with data only and not 1, 2008. reports); and (c) collecting information possessing samples or specimens) must Address for Submitting Proposals: or samples as necessary and as still provide a letter of eligibility from Applications must be submitted through requested. This also includes the the Regional Stranding Coordinator (see www.grants.gov, unless an applicant following coordination/cooperation IV.B.8 of the FFO). Researcher does not have Internet access. In that requirements: (a) Cooperation with participants must also have designated case, hard copies with original state, local, and Federal officials; (b) Co-Investigator(s) that are active NMFS signatures may be sent to: NOAA/ cooperation with state and local officials authorized stranding network NMFS/Office of Protected Resources, in the disposition of stranded marine participants in good standing, and Marine Mammal Health and Stranding mammals; and (c) cooperation with provide documentation to this effect. (3) Response Program, 1315 East-West other stranding network participants. (3) State, Local, Federal Government Highway, Room 13620, Silver Spring, Have cooperated in a timely manner Employees or Tribal Participants, State MD 20910–3283. with NMFS in collecting and submitting and local government officials or Information Contacts: Please visit the Level B (supplementary information employees participating pursuant to Prescott Grant Program Web site at: regarding sample collection related to MMPA Section 109(h) (16 U.S.C. http://www.nmfs.noaa.gov/pr/health/ life history and to the stranding event) 1379(h)) for marine mammal species not prescott/ or contact Michelle Ordono at and Level C (necropsy results) data and listed under the ESA fulfilling reporting the NOAA/NMFS/Office of Protected samples, when requested. (4) Have no obligations outlined in 50 CFR 216.22 Resources, Marine Mammal Health and current enforcement investigation for (i.e., submission of written report to Stranding Response Program, 1315 East- the take of marine mammals contrary to NMFS every six months containing West Highway, Room 13620, Silver the MMPA/ESA regulations. (5) Have no description of animal(s) involved, Spring, MD 20910–3283, by phone at record of a pending NMFS notice of circumstances of taking, method of (301) 713–2322, or by fax at (301) 427– violation(s) regarding the policies taking, name and position of official or 2525, or by E-mail at governing the goals and operations of employee involved, and disposition of [email protected]. the Stranding Network and Stranding animal(s)). Government officials must be Eligibility: There are three categories Agreement, if applicable (e.g., involved in areas of geographic need of eligible stranding network probation, suspension, or termination). (i.e., municipality or larger region with participants that may apply for funds In addition to these general criteria, no existing SA holder responder).

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Applicants must submit the required collaboration with current NOAA page (http://www.nmfs.noaa.gov/pr/ documentation in their proposal (see programs that include, but are not health/prescott/proposals/ Section IV, Application and Submission limited to, the National Marine Mammal costshare.htm). Legislation under which Information of the FFO) as evidence that Tissue Bank (NMMTB) or laboratories the Prescott Program operates requires they are an SA holder or designee conducting analysis of tissues for this cost sharing, or non-Federal match, participant, researcher participant, or a contaminants, employees of NOAA or in order to leverage the limited funds state, local, or Federal government the National Institute of Standards and available for this program and to employee, or tribal participant at the Technology can write a letter verifying encourage partnerships among time of the submission and during the that they are collaborating with the government, private organizations, non- award period. All eligibility criteria project, or that the organization or profit organizations, the stranding specified for the participant’s category individual applying is trained to network, and academia to address the must be met in order for a proposal to participate in the NMMTB or is needs of marine mammal health and be considered for funding. We support currently participating in the National stranding response. If a proposal does cultural and gender diversity in our Marine Analytical Quality Assurance not comply with these cost share programs and encourage eligible women Program. In addition, proposals requirements, it will not be returned and minority individuals and groups to encompassing activities conducted and considered in this annual funding submit proposals. Furthermore, we under the authority of a MMPA cycle. Pursuant to 48 U.S.C. 1469a, recognize the interest of the Secretaries Scientific Research Permit issued to a match may be waived for applicants that of Commerce and Interior in defining DOC or DOI organization (e.g., NMFS are residents in the U.S. insular areas appropriate marine management Regional Science Center) should include (Commonwealth of the Northern policies and programs that meet the a copy of the permit and a letter from Mariana Islands, Guam, American needs of the U.S. insular areas, so we the Principal Investigator (DOC/DOI Samoa, and the U.S. Virgin Islands). The also encourage proposals from eligible employee) verifying that the work is Federal Program Officer will determine individuals, government entities, being conducted with their approval. the appropriateness of all non-Federal universities, colleges, and businesses in Federal employee travel costs or salaries cost sharing proposals, including the U.S. insular areas as defined by the are not allowable costs under this valuation of in-kind contributions, MMPA (Section 3(14), 16 U.S.C. 1362). program. MMHSRP staff (at the regional according to the regulations codified at This includes the Commonwealth of and national level) are available to 15 CFR 14.23 and 24.24. An in-kind Puerto Rico, the U.S. Virgin Islands, provide information regarding statistics contribution is a non-cash contribution, American Samoa, Guam, and the on strandings, MMHSRP programmatic donated or loaned, by a third party to Northern Mariana Islands. We are goals and objectives, ongoing marine the applicant. In general, the value of in- strongly committed to broadening the mammal programs, regional funding kind services or property used to fulfill participation of Minority Serving priorities for the current and previous a non-Federal cost share will be the fair Institutions (MSIs), which include Prescott solicitations, and, along with market value of the services or property. Historically Black Colleges and other Federal Program Officers, can Thus, the value is determined by the Universities, Hispanic Serving provide guidance on application cost of obtaining such services or Institutions, Tribal Colleges and procedures and proper completion of property if they had not been donated, Universities, and institutions that work required forms. Unsatisfactory or of obtaining such services or property in undeserved areas in our programs. performance under prior or current for the period of the loan. The applicant The DOC/NOAA/NMFS vision, Federal awards, including delinquency must document the in-kind services or mission, and goals are to achieve full in submitting progress and financial property used to fulfill the non-Federal participation by MSIs, to advance the reports, may result in proposals not cost share. If we decide to fund a development of human potential, being considered for funding under the proposal, we will require strict strengthen the Nation’s capacity to 2009 Prescott Grant Program. accounting of the in-kind contributions provide high-quality education, and Cost Sharing Requirements: All within the total non-Federal cost share increase opportunities for MSIs to proposals submitted must provide a included in the award document. The participate in and benefit from Federal minimum non-Federal cost share of 25 Grants Officer (i.e., the DOC official financial assistance programs. percent of the total budget (i.e., .25 × responsible for all business management Therefore, Prescott Grant Program total project costs = total non-Federal and administrative aspects of a grant encourages all eligible applicants to share). Therefore, the total Federal share and with delegated authority to award, include meaningful participation of will be 75 percent or less of the total amend, administer, close out, suspend, MSIs whenever practicable. Applicants budget. For a proposed total Federal and/or terminate awards) is the final are not eligible to submit a proposal share of $100,000, the minimum non- approving authority for the award, under this program if they are an Federal share is $33,334 (total budget of including the budget and any cost- employee of the DOC or DOI. NOAA/ $133,334; .25 × $133,334 = $33,334). For sharing proposals. NMFS employees (whether full-time, a proposed total Federal share of Intergovernmental Review: part-time, or intermittent) are not $80,000, the minimum non-Federal Applications submitted under this allowed to help in the preparation of share is $26,667 (total budget of program are subject to the provisions of proposals, except for providing $106,667; .25 × $106,667 = $80,000). Executive Order 12372, information on data or sample analyses Cost share must be an integer, so please ‘‘Intergovernmental Review of Federal as an identified collaborator/Co- round up. The applicant can include a Programs.’’ Any applicant submitting an Investigator in the proposal. Since this non-Federal cost share for more than 25 application for funding is required to is a competitive program, NMFS and percent of the total budget, but this complete item 16 on SF–424 regarding NOAA employees cannot provide obligation will be binding. In order to clearance by the State Single Point of assistance in conceptualizing, reduce calculation error in determining Contact (SPOC) established as a result of developing, or structuring proposals, or the correct cost share amounts, we urge EO 12372. To find out about and write letters of support for any proposal. all applicants to use the cost share comply with a State’s process under EO However, for activities that involve calculator on the Prescott Program Web 12372, the names, addresses and phone

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numbers of participating SPOCs are residual funds. NOAA will work with funding, applicants previously receiving listed in the Office of Management and each jurisdiction to ensure the greatest funds under this program must have Budget’s home page at: http:// degree of success in meeting local, state, made significant progress implementing www.whitehouse.gov/omb/grants/ territorial, and national coral reef those tasks and met data submission spoc.html. monitoring needs. deadlines, including all performance Statutory Authority: Authority for the and fiscal reporting requirements and National Ocean Service (NOS) NOAA Coral Reef Conservation Grant data transfers. 1. 2009 CRCP Coral Reef Ecosystem Program is provided by Section 6403 Cost Sharing Requirements: As per Monitoring (Coral Reef Conservation Program) of section 6403(b)(1) of the Coral Reef Summary Description: The NOAA the Coral Reef Conservation Act of 2000 Conservation Act of 2000, Federal funds (16 U.S.C. 6401 et seq.). for any coral conservation project Coral Reef Monitoring Grant Program, as Catalog of Federal Domestic funded under this Program may not authorized under the Coral Reef Assistance (CFDA) Number: 11.426, exceed 50 percent of the total cost of the Conservation Act of 2000, provides Financial Assistance for National projects. Therefore, any coral matching grants to Governor-appointed Centers for Central Coastal Ocean conservation project under this program point of contact agencies for the Science. requires a 1:1 match. Matching funds jurisdictions of Puerto Rico, the U.S. Application Deadline: Preproposals must be from non-Federal sources and Virgin Islands (USVI), Florida, Hawaii, due: 5 p.m. on EST November 14, 2008. can include in-kind contributions and American Samoa, Guam, the Comments on preproposals provided to other non-cash support. Commonwealth of the Northern Mariana the applicants on January 9, 2009. Final NOAA strongly encourages applicants Islands (CNMI), the Republic of Palau, proposals due: 5 p.m. EST on February to leverage as much investment as the Federated States of Micronesia 20, 2009. possible. Federal funds may not be (including Chuuk, Yap, Kosrae, and Address for Submitting Proposals: considered as matching funds. As per Pohnpei), and the Republic of the Pre-applications must be sent to section 6403(b)(2) of the Coral Reef Marshall Islands to support State and [email protected] or to Jenny Conservation Act of 2000, the NOAA Territory Coral Reef Monitoring Waddell, NOAA National Ocean Administrator may waive all or part of activities in these jurisdictions. Service, N/SCI–1, 1305 East-West the matching requirement if the Funding Availability: NCCOS may Highway, Silver Spring, MD 20910. Administrator determines that the provide approximately $1,100,000 in Final applications must be submitted project meets the following two funding for FY 2009 to support coral through www.grants.gov, unless an requirements: 1. No reasonable means reef ecosystem monitoring activities applicant does not have Internet access. are available through which an under this program. FY 2009 awards to In that case, hard copies with original applicant can meet the matching Puerto Rico, Florida, U.S. Virgin signatures may be sent to: Jenny requirement, and, 2. The probable Islands, Hawaii, American Samoa, Waddell, NOAA National Ocean benefit of such project outweighs the Guam, and the Commonwealth of the Service, N/SCI–1, 1305 East-West public interest in such matching Northern Mariana Islands are expected Highway, Silver Spring, MD 20910. requirement. Applicants must specify in to range from $50,000 to $130,000. FY Information Contacts: The technical their proposal the source and may be 2009 awards to the Federated States of point of contact for State and Territory asked to provide letters of commitment Micronesia (FSM—including Chuuk, Coral Reef Monitoring is Jenny Waddell. to confirm stated match contributions. Yap, Kosrae, and Pohnpei), Republic of She can be reached at 301–713–3028 In the case of a waiver request, the Palau, and the Republic of the Marshall extension 174 or by e-mail at applicant must provide a detailed Islands (RMI) are expected to be [email protected]. justification explaining the need for the approximately $30,000 per year. Eligibility: Eligible applicants are waiver including attempts to obtain Funding will be subject to the limited to a natural resource sources of matching funds, how the availability of federal appropriations. management agency in each U.S. State benefit of the project outweighs the FY 2009 grant seekers may submit or Territory, or an appropriate non- public interest in providing match, and proposals up to three years in duration, governmental agency in the case of the any other extenuating circumstances at funding levels specified above (i.e., Freely Associated States, with preventing the availability of match. up to $90,000 for three year proposals jurisdiction over and an ability to Notwithstanding any other provisions for Palau, FSM, and RMI, and up to monitor the condition of coral reefs, as herein, and in accordance with 48 $390,000 for three year proposals for all designated by the respective governors U.S.C. 1469a(d), the Program shall other eligible applicants). In certain or other applicable senior jurisdictional waive any requirement for local instances, when requested by the official. Applicants from the Freely matching funds for any project under applicant and agreed upon by NOAA, Associated States must also provide a $200,000 (including in-kind NOAA may hold back a portion of any letter of support from their respective contribution) to the governments of awarded funds in order to provide officially-designated coral reef point of Insular Areas, defined as the specific technical assistance in the form contact to ensure that the proposed jurisdictions of the U.S. Virgin Islands, of contractual or other services. This activities are coordinated with other Guam, American Samoa, and the will only be allowed where such ongoing coral reef conservation efforts. Commonwealth of the Northern Mariana priority technical assistance and/or the NOAA is requesting proposals from Islands. Please Note: eligible applicants lack of sufficient means to deliver it are Puerto Rico, Florida, U.S. Virgin choosing to apply 48 U.S.C. 1469a(d) unavailable at the local level. Such Islands, Hawaii, American Samoa, should note the use and amount in the requests proposed herein will be Guam, and Commonwealth of the matching funds section of the respective reviewed on a case by case basis with Northern Mariana Islands, the Federated application. respect to the specific management States of Micronesia, Republic of Palau, Intergovernmental Review: objectives of this and the local coral reef and the Republic of the Marshall Applications under this program are not program. If all available funds are not Islands. Federal agencies are not eligible subject to Executive Order 12372, awarded, NOAA will consult with the for funding under this Program. Intergovernmental Review of Federal eligible applicants on the use of any Furthermore, to be eligible for FY 2009 Programs.

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2. 2009 CRCP—Coral Reef Management (Coral Reef Conservation Program) of proposals are selected for funding will Summary Description: The NOAA the Coral Reef Conservation Act of 2000 be bound by the percentage of cost Coral Reef Management Grant Program, (16 U.S.C. 6401 et seq.) sharing reflected in the award document as authorized under the Coral Reef Catalog of Federal Domestic signed by the NOAA Grants Officer. Conservation Act of 2000, provides Assistance (CFDA) Number: 11.419, Applicants should be prepared to Coastal Zone Management matching grants to the Governors carefully document matching Administration Awards. appointed point of contact agencies for contributions for each project selected Application Deadline: Pre- the jurisdictions of Puerto Rico, the U.S. to be funded. As per section 6403(b)(2) applications must be received no later of the Coral Reef Conservation Act of Virgin Islands (USVI), Florida, Hawaii, than 11:59 p.m. Eastern Standard Time Guam, the Commonwealth of the 2000, the NOAA Administrator may on Monday, December 1, 2008. Final waive all or part of the matching Northern Mariana Islands (CNMI), and applications must be received no later American Samoa for State and Territory requirement if the Administrator than 11:59 p.m. Eastern Standard Time determines that the project meets the Coral Reef Management activities. The on Thursday, March 12, 2009. objective of the State and Territory Coral following two requirements: 1. No Address for Submitting Proposals: reasonable means are available through Reef Management Grant program is to Final applications should be submitted support comprehensive management which an applicant can meet the electronically to: www.grants.gov, the matching requirement, and, 2. The programs for the conservation of coral Federal grants portal. If Internet access reef ecosystems in these jurisdictions. probable benefit of such project is unavailable hard copies can be outweighs the public interest in such Funding Availability: Funding up to submitted to David Kennedy, NOAA $3,000,000 is expected to be available matching requirement. In the case of a National Ocean Service, NOAA Coral waiver request, the applicant must for cooperative agreements to support Reef Conservation Program, Office of priority coral reef management activities provide a detailed justification Response and Restoration, N/ORR, explaining the need for the waiver that address areas 1–10 in the Federal Room 10102, 1305 East-West Highway, Funding Opportunity. There is no including attempts to obtain sources of Silver Spring, MD 20910. matching funds, how the benefit of the appropriation of funds at this time and Information Contacts: Technical point project outweighs the public interest in the final funding amount will be subject of contact for State and Territory Coral providing match, and any other to the availability of federal Reef Management is Dana Wusinich- appropriations. Support in out-years Mendez at 301–713–3155, extension 159 extenuating circumstances preventing following FY2009 is likewise contingent or e-mail at dana.wusinich- the availability of match. Match waiver upon the availability of future funding [email protected], FAX: 301–713–4367. requests including the appropriate and the requirements of the Federal Address: OCRM/NOAA, N/–ORM3, justification should be submitted as part agency supporting the project 1305 East-West Highway, Silver Spring, of the final application package. (Department of Commerce or MD 20910. Notwithstanding any other provisions Department of the Interior (DOI)). Each Eligibility: Eligible applicants are the herein, and in accordance with 48 eligible jurisdiction can apply for a governor-appointed point of contact U.S.C. 1469a(d), the Program shall maximum of $600,000. A minimum of agencies for coral reef activities in each waive any requirement for local 40% of the final award amount must be of the jurisdictions of American Samoa, matching funds for any project under dedicated to the implementation and Florida, the Commonwealth of the $200,000 (including in-kind support of the Local Action Strategy Northern Mariana Islands, Guam, contribution) to the governments of initiative in each jurisdiction. In certain Hawaii, Puerto Rico, and the U.S. Virgin Insular Areas, defined as the instances, when requested by the Islands. jurisdictions of the U.S. Virgin Islands, applicant and agreed upon by NOAA Cost Sharing Requirements: As per Guam, American Samoa, and the and DOI, NOAA may hold back a section 6403(b)(1) of the Coral Reef Commonwealth of the Northern Mariana portion of any awarded funds in order Conservation Act of 2000, Federal funds Islands. to provide specific coral reef for any coral conservation project Please Note: Eligible applicants choosing conservation technical assistance in the funded under this Program may not to apply 48 U.S.C. 1469a(d) should note the form of contractual or other services. exceed 50 percent of the total cost of the use of the waiver and the total amount of This will only be allowed where such projects. Therefore, any coral funds requested to be waived in the matching priority technical assistance and/or the conservation project under this program funds section of the respective application. lack of sufficient means to deliver it are requires a 1:1 match. Match can come Intergovernmental Review: unavailable at the local level. Such from a variety of public and private Applications under this program are not requests proposed herein will be sources and can include in-kind goods subject to Executive Order 12372, reviewed on a case by case basis with and services such as private boat use Intergovernmental Review of Federal respect to the specific management and volunteer labor. Federal sources Programs. objectives of this and the local coral reef cannot be considered for matching 3. Bay Watershed Education and program. If all funds that become funds, but can be described in the Training (B–WET) Hawaii Program available after Congressional budget narrative to demonstrate appropriation are not awarded, NOAA additional leverage. Applicants are Summary Description: The purpose of and DOI will consult with the eligible permitted to combine contributions this notice is to solicit proposals for applicants on the use of any residual from multiple non-federal partners in grants to support NOAA’s goal of funds. NOAA and DOI will work with order to meet the 1:1 match developing a well-informed citizenry each jurisdiction to ensure the greatest requirement, as long as such involved in decision-making that degree of success in meeting local, state, contributions are not being used to positively impact our coastal, marine territorial and national coral reef match any other funds. Applicants must and watershed ecosystems in the state of management needs. specify in their proposal the source(s) of Hawaii. This opportunity is an annually Statutory Authority: Authority for the match and may be asked to provide awarded, competitively-based grant that NOAA Coral Reef Conservation Grant letters of commitment to confirm stated provides initial funding to: (1) Assist in Program is provided by Section 6403 match contributions. Applicants whose the development of new programs; (2)

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encourage innovative partnerships Bennett. The postmark will be used to 4. CSCOR FY 2009 NGOMEX and CRES among environmental education determine the timeliness of the Summary Description: The purpose of programs throughout Hawaii; and (3) proposal. Applicants submitting hard this opportunity is to advise the public support geographically targeted copy applications must submit one (1) that NOAA/NOS/NCCOS/CSCOR is programs to advance environmental hard copy of the entire application soliciting proposals for two separate education efforts that complement package, a CD copy of the package, programs. Program 1 is the Regional appropriate school requirements. including all forms with original Ecosystem Prediction Program on Coral Funded projects provide meaningful signatures. Facsimile transmissions and Reef Ecosystem Studies (CRES) From science-based outdoor experiences for electronic mail submissions will not be Science to Conservation: Linking Coral K–12 students and professional accepted. Reefs, Coastal Watersheds and their development opportunities for teachers Information Contacts: For Human Communities in the Pacific in the area of environmental education administrative and technical questions, Islands. Projects under this program will as defined in this announcement. contact Stephanie Bennett, Federal be 3 to 5 years in duration. The goal of Funding Availability: This solicitation Program Officer at NOAA Pacific this funding opportunity is to utilize announces that approximately Services Center, 737 Bishop Street, existing scientific tools and approaches $1,000,000 may be available in FY 2009 Suite 1550, Honolulu, Hawaii 96813 or (e.g., biophysical models; coupled in award amounts to be determined by by phone at (808) 522–7481, or via e- watershed and hydrodynamic models) the proposals and available funds. The mail at [email protected]. within a social, cultural, and economic NOAA Pacific Services Center framework to develop and implement anticipates that approximately 5 to 15 Eligibility: Eligible applicants for effective coastal ecosystem management grants will be awarded with these funds, Priority 1 and 2 are K–12 public and pending availability of funds. independent schools and school practices in the Pacific Islands. Applicants are hereby given notice that systems, institutions of higher Proposals should be regional in scale, funds have not yet been appropriated education, commercial and nonprofit interdisciplinary, comprehensive, for this program. It is anticipated that organizations, state or local government integrated, and include multiple typical project awards for Priority 1 and agencies, and Indian tribal governments. investigators to develop capabilities for 2 (see FFO) will range from Individual applicants and Federal innovative forecasts and predictions for approximately $10,000 to $100,000. agencies are not eligible. Federal improved management and control Applications requesting Federal support agencies are not allowed to receive capabilities. Program 2 is the Northern from NOAA of more than $100,000 total funds under this announcement but Gulf of Mexico Ecosystems and Hypoxia will not be considered for review or may serve as collaborative project Assessment Program (NGOMEX). funding. There is no guarantee that partners. The Department of Commerce/ NGOMEX has two components. The sufficient funds will be available to National Oceanic and Atmospheric Modeling the Causes of Hypoxia make awards for all qualified projects. Administration (DOC/NOAA) is component takes a regional ecosystem The exact amount of funds that may be strongly committed to broadening the prediction approach to advance model awarded will be determined in pre- participation of historically Black development assessing the association award negotiations between the Colleges and Universities, Hispanic- between the northern Gulf hypoxic zone applicant and NOAA representatives. serving institutions, Tribal colleges and and causative factors. The proposed Publication of this notice does not universities, Alaskan Native and Native research for this competition should be oblige NOAA to award any specific Hawaiian institutions, and institutions 3–5 years in duration. The Modeling the project or to obligate any available that service undeserved areas. Impacts of Hypoxia component takes an funds. If applicants incur any costs prior ecosystem stressors approach to Cost Sharing Requirements: No cost advance understanding of hypoxia on to an award being made, they do so at sharing is required under this program, their own risk of not being reimbursed ecologically and commercially however, the NOAA Pacific Services important living resource populations of by the government. Center strongly encourages applicants to Notwithstanding verbal or written the northern Gulf of Mexico ecosystem. share as much of the costs of the award These projects should be 3 to 5 years of assurance that may have been received, as possible. Funds from other Federal there is no obligation on the part of duration. Funding is contingent upon awards may not be considered matching the availability of Fiscal Year 2009 NOAA to cover pre-award costs unless funds. The nature of the contribution approved by the Grants Officer as part Federal appropriations. It is anticipated (cash versus in-kind) and the amount of that final recommendations for funding of the terms when the award is made. matching funds will be taken into Statutory Authority: 15 U.S.C. 1540; under this announcement will be made consideration in the review process 33 U.S.C. 892a. by February 2009 and that projects with cash being the preferred method of Catalog of Federal Domestic funded under this announcement will contribution. Assistance (CFDA) Number: 11.473, have a July 1, 2009 through August 1, Coastal Services Center. Intergovernmental Review: Funding 2009 start date. Background information Application Deadline: Full proposals applications under the Center are about the NCCOS/CSCOR efforts can be must be received must be received by subject to Executive Order 12372, found at http://www.cop.noaa.gov. 5:59 Hawaii Time on August 15, 2008. Intergovernmental Review of Federal Funding Availability: Funding is Address for Submitting Proposals: Programs. It is the state agency’s contingent upon availability of Federal Applications must be submitted through responsibility to contact their state’s appropriations. NOAA is committed to www.grants.gov, unless an applicant Single Point of Contact (SPCO) to find continual improvement of the grants does not have Internet access. In that out about and comply with the state’s process and accelerating the award of case, hard copies with original process under EO 12372. To assist the financial assistance to qualified signatures must be postmarked on or applicant, the names and addresses of recipients in accordance with the before August 15, 2008, and sent to: the SPOCs are listed on the Office of recommendations of the Business NOAA Pacific Services Center, 737 Management and Budget’s Web site Process Re-engineering Team. In order Bishop Street, Suite 1550, Honolulu, http://www.whitehouse.gov/omb/grants/ to fulfill these responsibilities, this Hawaii 96813, ATTN: Stephanie spoc.html. solicitation announces that award

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amounts will be determined by the both of the programs. For the Coral Reef environmental education programs, proposals and available funds. Funds Ecosystem Studies proposals are due fosters the growth of new programs, and for the Coral Reef Ecosystem Studies October 9, 2008. For the Northern Gulf encourages the development of From Science to Conservation: Linking of Mexico proposals are due October 20, partnerships among environmental Coral Reefs, Coastal Watersheds and 2008. education programs throughout the San their Human Communities in the Pacific Address for Submitting Proposals: Francisco Bay, Monterey Bay, and Santa Islands will not exceed $200,000 per Applications must be submitted through Barbara Channel watersheds. Projects project per year. (1) It is anticipated that www.grants.gov, unless an applicant support organizations that provide only one project will be awarded for this does not have Internet access. In that students ‘‘meaningful’’ watershed program with project duration of 3 to 5 case, hard copies with original educational experiences and teachers years. Funds for the Modeling the signatures may be sent to: Laura J. professional development opportunities Causes of Hypoxia component of the Golden 1305 East-West Hwy. Routing in the area of environmental education Northern Gulf of Mexico Ecosystems Code: N/SCI2, Building: SSMC4, Silver related watersheds. and Hypoxia Assessment program will Spring, MD 20910–3278 not exceed $1,000,000. (2) It is Information Contacts: Technical Funding Availability: This solicitation anticipated that only one project will be Information: Program Managers contact announces that approximately awarded for this program component information can be found under each $2,000,000 may be available in FY 2009 with project duration of 3 to 5 years. program element listed in B. Program in award amounts to be determined by Funds for the Modeling the Impacts of Priorities of the FFO. Business the proposals and available funds. Hypoxia component of the Northern Management Information: Laurie About $850,000 will be made available Gulf of Mexico Ecosystems and Hypoxia Golden, NCCOS/CSCOR Grants to the San Francisco Bay watershed Assessment program will be up to Administrator, 301–713–3338/ext 151, area, about $700,000 will be made $500,000 per project per year. (3) It is Internet: [email protected]. available to the Monterey Bay watershed anticipated that 3 to 5 projects will be Eligibility: Eligible applicants are area, and about $450,000 will be made awarded for this program component institutions of higher education, other available to the Santa Barbara Channel with project duration of 3 to 5 years. non-profits, state, local, Indian Tribal watershed area. The National Marine Applicants are hereby given notice that Governments, commercial organizations Sanctuary Program anticipates that funds have not yet been appropriated and Federal agencies that possess the approximately 35 grants will be for this program. In no event will NOAA statutory authority to receive financial awarded with these funds. The or the Department of Commerce be assistance. Please note that: (1) NCCOS/ California B–WET Program should not responsible for proposal preparation CSCOR will not fund any Federal Full be considered a long-term source of costs if this program fails to receive Time Employee (FTE) salaries, but will funds; applicants must demonstrate funding or is cancelled because of other fund travel, equipment, supplies, and how ongoing programs, once initiated, agency priorities. There is no guarantee contractual personnel costs associated will be sustained. that sufficient funds will be available to with the proposed work. (2) Researchers The National Marine Sanctuary make awards for all qualified projects. must be employees of an eligible entity Program anticipates that typical project Publication of this notice does not listed above; and proposals must be awards for Meaningful Watershed obligate NOAA to award any specific submitted through that entity. Non- Experiences and Professional project or to obligate any available Federal researchers should comply with Development in the Area of funds. If one incurs any costs prior to their institutional requirements for Environmental Education for Teachers receiving an award agreement signed by proposal submission. (3) Non-NOAA will range from $30,000 to $60,000. an authorized NOAA official, one would Federal applicants will be required to Proposals will be considered for funds do so solely at one’s own risk of these submit certifications or documentation greater than the specified ranges if there costs not being included under the showing that they have specific legal is sufficient demonstration that the award. Publication of this notice does authority to receive funds from the project requires additional funds and/or not obligate any agency to any specific Department of Commerce (DOC) for this if the proposal includes multiple award or to obligate any part of the research. (4) NCCOS/CSCOR will accept partners. There is no guarantee that entire amount of funds available. proposals that include foreign sufficient funds will be available to Recipients and subrecipients are subject researchers as collaborators with a make awards for all qualified projects. to all Federal laws and agency policies, research who has met the above stated The exact amount of funds that may be regulations and procedures applicable eligibility requirements. (5) Non-Federal awarded will be determined in pre- to Federal financial assistance awards. researchers affiliated with NOAA- award negotiations between the Statutory Authority: For the Coral University Cooperative/Joint Institutes applicant and NOAA representatives. Reef Ecosystem Studies From Science to should comply with joint institutional Publication of this notice does not Conservation: Linking Coral Reefs, requirements; they will be funded oblige NOAA to award any specific Coastal Watersheds and their Human through grants either to their project or to obligate any available Communities in the Pacific Islands institutions or to joint institutes. funds. If applicants incur any costs prior program the program authority is 16 Cost Sharing Requirements: None. to an award being made, they do so at U.S.C. 6403, for the Northern Gulf of Intergovernmental Review: their own risk of not being reimbursed Mexico Ecosystems and Hypoxia Applications under this program are not by the government. Notwithstanding Assessment Program the program subject to Executive Order 12372, verbal or written assurance that may authority is 33 U.S.C. 1442. Intergovernmental Review of Federal have been received, there is no Catalog of Federal Domestic Programs. Assistance (CFDA) Number: 11.478, obligation on the part of NOAA to cover Center for Sponsored Coastal Ocean 5. FY 2009 California Bay Watershed pre-award costs unless approved by the Research—Coastal Ocean Program. Education and Training Program Grants Office as part of the terms when Application Deadline: The deadline Summary Description: The California the award is made. for receipt of proposals at the NCCOS/ B–WET grant program is a competitively Statutory Authority: 33 U.S.C. 893 CSCOR office is 3 p.m., Eastern Time for based program that supports existing a(a).

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Catalog of Federal Domestic matching grants of financial assistance the right to transfer any given proposal Assistance (CFDA) Number: 11.429, for international coral reef conservation to another category within the Marine Sanctuary Program. projects. The Program solicits proposals International program if the proposal Application Deadline: Proposals must under four funding categories: (1) better addresses the criteria of another be received by 5 p.m. Pacific Daylight Promote Watershed Management in the category. Time on October 6, 2008. Wider Caribbean, Brazil, and Bermuda; Statutory Authority: Authority for the Address for Submitting Proposals: (2) Support Planning for Effective NOAA Coral Reef Conservation Grant Applications must be submitted through Marine Protected Area Management; (3) Program is provided by Section 6403 www.grants.gov, unless an applicant Encourage the Development of National (Coral Reef Conservation Program) of does not have Internet access. In that Networks of Marine Protected Areas in the Coral Reef Conservation Act of 2000 case, hard copies with original the Wider Caribbean, Bermuda, Brazil, (16 U.S.C. 6401 et seq.). signatures may be sent to: Attn: Southeast Asia, and the South Pacific; Catalog of Federal Domestic Seaberry Nachbar, B–WET Program and (4) Promote Regional Socio- Assistance (CFDA) Number: 11.463, Manager, Monterey Bay National Marine Economic Training and Monitoring in Habitat Conservation. Sanctuary Office, 299 Foam Street, Coral Reef Management in the Wider Application Deadline: Pre- Monterey, CA 93940. Caribbean, Brazil, Bermuda, the Western applications must be received by NOAA Information Contacts: Please visit the Indian Ocean, the Red Sea, the South by 5 p.m., U.S. Eastern Time, on National Marine Sanctuaries CA B–WET Pacific, South Asia, and Southeast Asia. Monday, November 3, 2008. Final Web site at: http://sanctuaries.noaa.gov/ Each funding category has specific applications must be received by NOAA news/bwet/welcome.html or contact applicant and project eligibility criteria. by 5 p.m. U.S. Eastern Time, on Friday, Seaberry Nachbar, Monterey Bay February. 13, 2009. National Marine Sanctuary office, 299 Funding Availability: NOAA Address for Submitting Proposals: Foam Street, Monterey, CA 93940, or by announces the availability of up to 1. Pre-application Submission phone at 831–647–4201, or fax to 831– $500,000 in FY 2009 to support grants Information: Pre-applications may be 647–4250, or via Internet at and cooperative agreements under the submitted by surface mail or e-mail by [email protected]. International Coral Reef Grant Program. 5 p.m., U.S. Eastern Time, November 3, Eligibility: Eligible applicants are These funds will be used to support 2008. Submissions by e-mail are K-through-12 public and independent financial assistance awards under the preferred to [email protected]. schools and school systems, institutions program categories listed in section I.B. Acceptable electronic formats for of higher education, nonprofit Program Priorities and III.C. Other narratives, attachments, and images are organizations, state or local government Criteria that Affect Eligibility of the limited to Adobe Acrobat (.PDF), or agencies, and Indian tribal governments. FFO. Applicants that are invited to Microsoft Word files. If submitting by The Department of Commerce/ National submit a final application may be surface mail, please include an Oceanic and Atmospheric requested to revise award objectives, electronic copy of the pre-application Administration (DOC/NOAA) is work plans, or budgets prior to on CD. Federal financial assistance strongly committed to broadening the submittal of the final application. The forms are NOT required to be submitted participation of historically black amount of funds to be awarded and the with the pre-application. If surface mail colleges and universities, Hispanic final scope of activities will be is selected, paper pre-applications must serving institutions, tribal colleges and determined in pre-award negotiations be submitted to: David Kennedy, NOAA universities, and institutions that among the applicant, NOAA Grants Coral Reef Conservation Program service undeserved areas. The National Management Division (GMD) and Coordinator, Office of Response and Marine Sanctuary Program encourages relevant NOAA staff. Up to Restoration, N/ORR, Room 10102, proposals involving any of the above approximately $500,000 may be NOAA National Ocean Service, 1305 institutions. available in FY 2009 to support grants East-West Highway, Silver Spring, MD Cost Sharing Requirements: No cost and cooperative agreements under this 20910. Fax submittals will also be sharing is required under this program; program. Approximately $75,000– accepted for pre-applications (Fax: 301– however, the National Marine Sanctuary $100,000 may be allocated to each of the 713–4389). b. Please note that late Program strongly encourages applicants four project categories listed below, applications cannot be considered applying for either area of interest to with the following award ranges: under any circumstances including e- share as much of the costs of the award 1. Watershed Management: $30,000– mail transmission malfunctions. as possible. Funds from other Federal $50,000; 2. Planning for Effective Electronic files of pre-applications awards may not be considered matching Marine Protected Area Management: must arrive without viruses. If funds. The nature of the contribution Single sites: Up to $50,000; Multiple attachments cannot be opened due to a (cash versus in-kind) and the amount of sites: Up to $80,000; 3. MPA National virus or they arrive with a virus, the pre- matching funds will be taken into Networks: $40,000–$50,000; 4. Regional applications will be disqualified. You consideration in the review process Socio-Economic Monitoring projects: may call us at 301–713–3078 x218 with cash being the preferred method of $15,000–$30,000 Pre- and final before the deadline to ensure that your contribution. applications with requests over the limit pre-application arrived. Intergovernmental Review: of each category will NOT be accepted. 2. Final Application Submission Applications under this program are not Pre- and final applications must be Information: Applicants who are invited subject to Executive Order 12372, submitted under only one of the above to submit a final application may be Intergovernmental Review of Federal mentioned categories. Funding will be required to make modifications or Programs. subject to the availability of federal revisions to the project and budget appropriations. Support in outyears narratives and must submit these 6. International Coral after FY 2009 is contingent upon the narratives with a Federal financial Summary Description: The NOAA availability of funds. Applicants should assistance award application package Coral Reef Conservation Grant Program, never begin a project in expectation of (federal forms described below). Only as authorized under the Coral Reef funds under this program. The applicants who submitted pre- Conservation Act of 2000, provides International Program Office reserves applications by the deadline will be

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eligible to be considered for invitations Aden (PERSGA): Djibouti, Egypt, waive any requirement for local to submit a final application by 5 p.m., Jordan, the Kingdom of Saudi Arabia, matching funds for any project under U.S. Eastern Time, on February 13, and Yemen. $200,000 (including in-kind 2009. The applicant may submit the Cost Sharing Requirements: The contribution) to the governments of final application (narratives, federal International Coral Grant Program is Insular Areas, defined as the forms, and supporting documentation) subject to the matching fund jurisdictions of the U.S. Virgin Islands, in one of two ways: Applications must requirements described below. As per Guam, American Samoa, and the be submitted through http:// section 6403(b)(1) of the Coral Reef Commonwealth of the Northern Mariana www.grants.gov, unless an applicant Conservation Act of 2000, Federal funds Islands. does not have Internet access. In that for any coral conservation project Please Note: Eligible applicants choosing case, hard copies with original funded under this Program may not to apply 48 U.S.C. 1469a(d) should note the exceed 50 percent of the total cost of the signatures may be sent to: Scot Frew, use of the waiver and the total amount of projects. Therefore, any coral NOAA/NOS International Program funds requested to be waived in the matching conservation project under this program Office, 1315 East-West Highway, 5th funds section of the respective pre- and final Floor, N/IP, Room 5735, Silver Spring, requires a 1:1 match. Match can come applications. MD 20910. from a variety of public and private Applicants should consider the sources and can include in-kind goods Intergovernmental Review: delivery time when submitting their and services such as private boat use Applications under the International pre- and final applications from and volunteer labor. Federal sources Coral Reef Grant program are not subject international or remote areas. Late cannot be considered for matching to Executive Order 12372, applications by any method cannot be funds, but can be described in the Intergovernmental Review of Federal accepted under any circumstances. budget narrative to demonstrate Programs. Information Contacts: Technical point additional leverage. Applicants are of contact for International Coral Reef permitted to combine contributions 7. NOAA’s National Height Conservation is Scot Frew, NOAA/NOS from multiple non-federal partners in Modernization Program International Program Office, 301–713– order to meet the 1:1 match Summary Description: The purpose of 3078, extension 220 or e-mail at recommendation, as long as such this notice is to solicit proposals for [email protected]. contributions are not being used to Eligibility: Eligible applicants include match any other funds. cooperative agreements and/or grants institutions of higher education, U.S. Applicants must specify in their between NOAA and partnering entities and international non-profit proposal the source(s) of match and may in the United States, implementing organizations, and commercial be asked to provide letters of NOAA’s National Height Modernization organizations. U.S. federal agencies and commitment to confirm stated match Program (NHMP) Plan. Proposals individuals are not eligible. For specific contributions. Applicants whose submitted in response to this country eligibility per category, please proposals are selected for funding will announcement should contribute to the refer to individual category descriptions be bound by the percentage of cost beneficial public outcomes associated in Section V of the Federal Funding sharing reflected in the award document with the five priority issues in this plan Opportunity. The proposed work must signed by the NOAA Grants Officer. which consists of enhancing the vertical be conducted at a non-U.S. site. Eligible Applicants should be prepared to component of the National Spatial countries are defined as follows: The carefully document matching Reference System (NSRS); enabling Wider Caribbean includes the 37 States contributions for each project selected users to access the vertical component and territories that border the marine to be funded. As per section 6403(b)(2) of the NSRS; outreach and education environment of the Gulf of Mexico, the of the Coral Reef Conservation Act of regarding geospatial issues and Caribbean Sea, and the areas of the 2000, the NOAA Administrator may activities as they relate to NHMP; Atlantic Ocean adjacent thereto, and waive all or part of the matching capacity building and technology Brazil and Bermuda, but excluding areas requirement if the Administrator transfer as they relate to NHMP; under U.S. jurisdiction. The South determines that the project meets the coordination, cooperation, and Pacific Region includes South Pacific following two requirements: 1. No collaboration with other entities to Regional Environment Program’s Pacific reasonable means are available through accomplish common goals as they relate island countries and territories, which an applicant can meet the to NHMP. This competition is focused including the Federated States of matching requirement, and, 2. The on the geography of the United States Micronesia, Republic of Palau, and the probable benefit of such project and its territories in response to Republic of the Marshall Islands, but outweighs the public interest in such NOAA’s NHMP Regional excluding U.S. territories and four matching requirement. In the case of a Implementation Plan and subsequent developed country members. South Asia waiver request, the applicant must congressional appropriations. The includes India, Sri Lanka, the Maldives, provide a detailed justification program priorities for this opportunity Pakistan, and Bangladesh. Southeast explaining the need for the waiver support NOAA’s mission support goal Asia Region includes Brunei, Cambodia, including attempts to obtain sources of of: Commerce and Transportation, Indonesia, Laos, Malaysia, Philippines, matching funds, how the benefit of the Enable safe, secure, and seamless Singapore, Thailand, Timor-Leste, and project outweighs the public interest in movement of goods and people in the Vietnam. The Western Indian Ocean providing match, and any other United States transportation system. Region includes Comoros, France (La extenuating circumstances preventing Priorities addressing this mission goal Reunion), Kenya, Madagascar, the availability of match. Match waiver also frequently are found to support Mauritius, Mozambique, Seychelles, the requests including the appropriate NOAA’s other mission goals: Improve United Republic of Tanzania, and South justification should be submitted as part protection, restoration, and management Africa. The Red Sea Region includes of the final application package. of coastal and ocean resources through five member countries of the Regional Notwithstanding any other provisions ecosystem-based management; increase Organization for the Conservation of the herein, and in accordance with 48 understanding of climate variability and Environment of the Red Sea and Gulf of U.S.C. 1469a(d), the Program shall change; and improve accuracy and

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timeliness of weather and water or by fax 301–713–4176, or via e-mail at an authorized NOAA official, one would information. [email protected]. do so solely at one’s own risk of these Funding Availability: Total Eligibility: Eligible funding applicants costs not being included under the anticipated funding for all awards is are institutions of higher education, award. Recipients and subrecipients are approximately $2,500,000 and is subject state, local and Indian tribal subject to all Federal laws and agency to the availability of FY 2009 governments. policies, regulations and procedures appropriations. The anticipated federal Cost Sharing Requirements: There is applicable to Federal financial funding per award (min-max) is no requirement for cost sharing. assistance awards. approximately $50,000 to $1,200,000 Intergovernmental Review: Funding Statutory Authority: Section 310 of per year. The anticipated number of applications under the National Ocean the Coastal Zone Management Act of awards ranges from 10 to 20, Service are subject to Executive Order 1972, as amended, 16 U.S.C. 1456c. approximately, and will be adjusted 12372, Intergovernmental Review of Catalog of Federal Domestic based on available funding and quality Federal Programs. It is the state agency’s Assistance (CFDA) Number: 11.419, of received proposals. responsibility to contact their state’s Coastal Zone Management Statutory Authority: 33 U.S.C. 883a Single Point of Contact (SPCO) to find Administration Awards. and 33 U.S.C. 883d. out about and comply with the state’s Application Deadline: Applications process under EO 12372. To assist the must be submitted no later than 5 p.m. Catalog of Federal Domestic applicant, the names and addresses of (EDT) on September 9, 2008. No Assistance (CFDA) Number: 11.400, the SPOCs are listed on the Office of facsimile or electronic mail applications Geodetic Surveys and Services Management and Budget’s Web site will be accepted. (Applications of the National Geodetic http://www.whitehouse.gov/omb/grants/ Address for Submitting Proposals: Reference System). spoc.html. Applications must be submitted through Application Deadline: Letters of www.grants.gov, unless an applicant 8. National Coastal and Estuarine Intent (LOIs) must be received by the does not have Internet access. In that Research and Technology Program National Ocean Service by 4 p.m. ET on case, hard copies with original August 1, 2008. Full proposals must be Summary Description: The National signatures may be sent to: Erica Seiden, received no later than 4 p.m. ET, Oceanic and Atmospheric 1305 East-West Highway, N/ORM5, September 2, 2008. Administration (NOAA) seeks to SSMC4 10542, Silver Spring, MD 20910. Address for Submitting Proposals: A establish a national estuarine research Facsimile transmissions and electronic letter of intent (LOI) may be sent via e- and technology program which operates mail submission of full proposals will mail to [email protected]. in partnership with the National not be accepted. Insert FY 2009 National NHMP Program Estuarine Research Reserve System Information Contacts: Technical as the subject line of the e-mail (NERRS). Funds will be used to conduct Information: Erica Seiden, OCRM/ERD containing the LOI. Applicants collaborative research and transform the Project Manager, submitting multiple LOIs must use a best available science into practical [email protected], 301–563–1172. unique project title for each LOI and innovative tools that coastal managers Business Management Information: may send all LOIs in one e-mail or in can use to detect, prevent, and reverse Erica Seiden, OCRM/ERD Project multiple e-mails. If hard copy LOIs are the impacts of coastal pollution and Manager, [email protected], 301– submitted, an original and two copies habitat degradation. Additionally, the 563–1172. should be sent to the attention of Gilbert program will provide coastal and Eligibility: Eligible applicants are non- Mitchell at 1315 East-West Highway, estuarine managers a better Federal institutions of higher education, N/NGS1, Room 9356, SSMC3, Silver understanding of what tools are other non-profits, commercial Spring, MD 20910 contact him at 301– available, how well they work, and how organizations, and state and local 713–3228x114 or e-mail best to apply them to detect, prevent, governments that possess the statutory [email protected]. Full and reverse the impacts of coastal authority to receive financial assistance. proposal application packages must be pollution and habitat degradation. Please note that: (1) The Office of Ocean submitted through Grants.gov. If an Funding Availability: Funding is and Coastal Resource Management, applicant does not have Internet access, contingent upon the availability of Estuarine Reserves Division (OCRM/ one set of originals (signed) and two Federal appropriations. NOAA’s ERD) will not fund any Federal Full copies of the hard copy proposals and Estuarine Reserves Division anticipates Time Employee (FTE) salaries, but will related forms should be mailed to the up to $5,232,000 will be available to fund travel, equipment, supplies, and attention of Gilbert Mitchell at 1315 fund a National Coastal and Estuarine contractual personnel costs associated East-West Highway, N/NGS1, Room Research and Technology Program with the proposed work. (2) Researchers 9356, SSMC3, Silver Spring, MD 20910 under this competition. Applicants are must be employees of an eligible entity contact him at 301–713–3228x114 No e- hereby given notice that funds have not listed above; and proposals must be mail or fax copies will be accepted. yet been appropriated for this program. submitted through that entity. Non- Information Contacts: For In no event will NOAA or the Federal researchers should comply with administrative questions, contact Gilbert Department of Commerce be responsible their institutional requirements for Mitchell, NOAA NOS, SSMC3; 1315 for proposal preparation costs if this proposal submission. (3) OCRM/ERD East-West Highway, Silver Spring, MD program fails to receive funding or is will accept proposals that include 20910, or by phone at 301–713–3228 cancelled because of other agency foreign researchers as collaborators with Extension 114, or by fax 301–713–4176, priorities. There is no guarantee that a researcher who has met the above or via e-mail at sufficient funds will be available to stated eligibility requirements. [email protected]. For technical make awards for all qualified projects. Cost Sharing Requirements: None. questions regarding this announcement, Publication of this notice does not Intergovernmental Review: contact Renee Shields, NOAA NOS oblige NOAA to award any specific Applications under this program are not SSMC3; 1315 East-West Highway, Silver project or to obligate any available subject to Executive Order 12372, Spring, MD 20910; or contact her by funds. If one incurs any costs prior to ‘‘Intergovernmental Review of Federal phone at 301–713–3231 Extension 115, receiving an award agreement signed by Programs.’’

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9. National Estuarine Research Reserve Catalog of Federal Domestic project cost of $28,572). Requested Graduate Research Fellowship Program Assistance (CFDA) Number: 11.420, overhead costs and institutional fees FY2009 Coastal Zone Management Estuarine that do not qualify as direct costs under Summary Description: The National Research Reserves. fellowship awards are limited to 10% of Estuarine Research Reserve System of Application Deadline: Applications the federal amount. Waived overhead must be submitted through NOAA announces the availability of costs may be used as match. www.grants.gov no later than 11 p.m. graduate research fellowships. The Intergovernmental Review: (EST) November 1, 2008 or postmarked National Estuarine Research Reserve Applications under this program are no later than November 1, 2008. subject to Executive Order 12372, System (NERRS) consists of estuarine Address for Submitting Proposals: areas of the United States and its ‘‘Intergovernmental Review of Federal Applications must be submitted through Programs.’’ Applicants should contact territories which are designated and www.grants.gov, unless an applicant managed for research and educational their State Single Point of Contact does not have Internet access. In that (SPOC) to find out about and comply purposes. Each reserve within the case, hard copies with original system is chosen to reflect regional with the State’s process under EO12372. signatures may be sent to: Alison Krepp, The names and addresses of the SPOCs differences and to include a variety of Graduate Research Fellowship ecosystem types in accordance with the are listed in the Office of Management Coordinator, NOAA Estuarine Reserves and Budget’s Web site at http:// classification scheme of the national Division, 1305 East West Highway, program as presented in 15 CFR part www.whitehouse.gov/omb/grants/ N/ORM 5, SSMC 4 Station 10503 Silver spoc.html. 921. Each reserve supports a wide range Spring MD 20910. of beneficial uses of ecological, Information Contacts: For questions 10. National Estuarine Research Reserve economic, recreational, and aesthetic regarding the program and application Land Acquisition and Construction values which are dependent upon the process, please contact Alison Krepp Program FY 2009 maintenance of a healthy ecosystem. (301–713–3155 ext. 105) at NOAA/ Summary Description: This funding The sites provide habitats for a wide Estuarine Reserves Division, 1305 East- opportunity announces funding for land range of ecologically and commercially West Highway, N/ORM 5, SSMC 4, acquisition/construction awards. The important species of fish, shellfish, Station 10503, Silver Spring, MD 20910 National Estuarine Research Reserve birds, and other aquatic and terrestrial or via e-mail: [email protected], System consists of estuarine areas of the wildlife. Each reserve has been designed or fax: 301–713–4012. The program Web United States and its territories which to ensure its effectiveness as a site can be accessed at http:// are designated and managed for research conservation unit and as a site for long- www.nerrs.noaa.gov/fellowship. If the and educational purposes. Each reserve term research and monitoring. As part of Web page does not provide sufficient within the system is chosen to represent a national system, the reserves information and Alison Krepp is collectively provide an excellent unavailable, please contact Erica Seiden different bio-geographic regions and to opportunity to address research at (301) 713–3155 ext. 172 or include a variety of ecosystem types in questions and estuarine management [email protected]. For further accordance with the classification issues of national significance. For information on specific research scheme of the national program as detailed descriptions of the sites, refer opportunities at National Estuarine presented in 15 CFR part 921. Through to the NERR Web site at http:// Research Reserves, contact the site staff the funding of designated reserve www.nerrs.noaa.gov/fellowship or listed in Appendix I of the FFO. agencies and universities to undertake contact the site staff. Eligibility: Awards are normally made land acquisition and construction Funding Availability: The Estuarine to the fellow’s graduate institution projects that support the NERRS Reserves Division anticipates that 25 through the use of a grant. However, purpose, NOAA will strengthen Graduate Research Fellowships will be institutions eligible to receive awards protection of key land and water areas; competitively awarded to provide include institutions of higher education, enhance long-term protection of the area funding to qualified graduate students other non-profits, commercial for research and education; and provide whose research occurs within the organizations, and state and local for facility and exhibit construction. boundaries of at least one reserve. governments. All reserve staff are Funding Availability: This funding Minority students are encouraged to ineligible to submit an application for a opportunity announces that apply for these fellowships. The amount fellowship under this announcement. approximately $6.89 million may be of the fellowship is $20,000; at least Funds are expected to be available on a available to designated reserve agencies 30% of total project cost match is competitive basis to qualified graduate or universities through this required by the applicant (i.e. $8,572 students for research within a reserve(s) announcement for fiscal year 2009, match for $20,000 in federal funds for leading to a graduate degree. Applicants subject to availability of funding. It is a total project cost of $28,572). must be admitted to or enrolled in a anticipated that 5 to 23 total projects Statutory Authority: Section 315 of full-time master’s or doctoral program at may be funded. Awards will be issued the Coastal Zone Management Act of a U.S. accredited university in order to as competitive grants. It is anticipated 1972, as amended CZMA), 16 U.S.C. be eligible to apply. Applicants should that the awards will run for up to two 1461, establishes the National Estuarine have completed a majority of their years. In the past, funding for land Research Reserve System (NERRS). 16 graduate course work at the beginning of acquisition/construction awards has U.S.C. 1461(e)(1)(B) authorizes the their fellowship and have an approved ranged in amount from approximately Secretary of Commerce to make grants thesis research program. Minority $50,000 to $3 million. to any coastal state or public or private students are encouraged to apply. Statutory Authority: Authority for the person for purposes of supporting Cost Sharing Requirements: NERR program is provided by 16 U.S.C. research and monitoring within a Requested federal funds must be 1461(e)(1)(A)(i),(ii), and (iii). National Estuarine Research Reserve matched by at least 30 percent of the Catalog of Federal Domestic that are consistent with the research TOTAL cost, not the federal share, of Assistance (CFDA) Number: 11.420, guidelines developed under subsection the project (i.e. $8,572 match for Coastal Zone Management Estuarine (c). $20,000 in federal funds for a total Research Reserves.

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Application Deadline: Complete grant are listed in the Office of Management be submitted by e-mail to the identified applications must be received or and Budgets Web site at http:// NOAA Competition Manager listed with postmarked by 5 p.m., Eastern Standard www.whitehouse.gov/omb/grants/ each Competition in the Program Time, November 30, 2008. spoc.html. Priorities section. If an applicant does Address for Submitting Proposals: not have Internet access, LOI hard Oceanic and Atmospheric Research Applications must be submitted through copies may be sent to the Competition (OAR) www.grants.gov, unless an applicant Managers. Hard copies should be sent to does not have Internet access. In that 1. Climate Program Office for FY 2009 NOAA Climate Program Office (R/CP1), case, hard copies with original Summary Description: NOAA’S SSMC3, Room 12112, 1315 East-West signatures may be sent to: NOS/OCRM/ Climate Mission Goal is to understand Highway, Silver Spring, MD 20910 or ERD, Nina Garfield, 1305 East-West climate variability and change to faxed to 301–713–0518. Please allow Highway, Room 10505, Silver Spring, enhance society’s ability to plan and two weeks after receipt for a response. MD 20910. 2. Full Applications must be submitted Information Contacts: Administrative respond. The long-term climate efforts of NOAA are designed to develop a through www.grants.gov. If an applicant and Technical questions regarding the does not have Internet access, the CPO program and application process, please predictive understanding of variability and change in the global climate system, Grants Manager Diane Brown should be contact Nina Garfield, program contacted by mail at NOAA Climate coordinator, at NOAA/Estuarine and to advance the application of this information in climate-sensitive sectors Program Office (R/CP1), SSMC3, Room Reserves Division, 1305 East-West 12112, 1315 East-West Highway, Silver Highway, N/ORM5, SSMC4, Station through a suite of process research, observations and modeling, and Spring, MD 20910 for hard copy 10505, Silver Spring, MD 20910 or via submission instructions. Please allow phone: 301–563–1171 ext. 171, e-mail: application and assessment activities. The NOAA Climate Program Office two weeks after receipt for a response. contact [email protected], or fax: Information Contacts: Please visit the 301–713–4363. The program Web site coordinates climate activities across all NOAA in fulfillment of NOAA’s Climate CPO Web site for further information can be accessed at http:// http://www.climate.noaa.gov/ or contact www.ocrm.nos.noaa.gov/nerr.html. Mission Goal. The Program partners with Federal, academic, private, and the CPO Grants Manager, Diane Brown Other questions should be directed to by mail (see Address above). Please Nina Garfield of ERD at 301–563–1171 international research institutions and is allow up to two weeks after receipt for ext. 171, or fax 301–713–4012, or via a key contributing element of the U.S. a response. Internet at [email protected] or Climate Change Science Program Eligibility: Eligible applicants are Laurie McGilvray at (301) 713–3155 ext. (CCSP). institutions of higher education, other 158, [email protected]. Funding Availability: In FY 2007, Eligibility: Eligible applicants are approximately $8M in first-year funding nonprofits, commercial organizations, NERR lead state agencies or universities was available for 94 new awards. international organizations, and state, in coastal states. Eligible applicants Similar funds and number of awards are local and Indian tribal governments. should have completed all requirements anticipated in FY 2009. Please be Federal agencies or institutions are not as stated in the NERRS regulations at advised that the number of new awards eligible to receive Federal assistance Title 15—Commerce and Foreign Trade, and funding levels will depend upon under this notice. Chapter IX—National Oceanic and the final FY 2009 budget appropriations. Cost Sharing Requirements: None. Atmospheric Administration, It is anticipated that awards will be up Intergovernmental Review: Department of Commerce, Part 921— to three years in length and cost Applications under this program are not National Estuarine Research Reserve between $50,000 and $200,000 per year. subject to Executive Order 12372, System Regulations (15 CFR part 921) Federal funding for FY 2010 may be Intergovernmental Review of federal http://nerrs.noaa.gov/ used to fund some awards submitted programs. _ Background Regulations.html. under this Competition. Current or 2. 2009 NMFS-Sea Grant Fellowships in Cost Sharing Requirements: The previous grantees are eligible to apply Marine Resource Economics amount of federal funds requested must for a new award that builds on, but does be matched by the applicant: 30 percent not replicate, activities covered in the Summary Description: The Graduate total project match for construction current or previous award. Current Fellowship Program generally awards awards and 50 percent total project grantees should not apply for two new PhD fellowships each year to match for land acquisition awards. Cash supplementary funding through this students who are interested in careers or in-kind contributions directly announcement. related to the development and benefiting the project may be used to Statutory Authority: 49 U.S.C. implementation of quantitative methods satisfy the matching requirements. If 47720(b), 15 U.S.C. 2904, 15 U.S.C. for assessing the economics of the using Reserve land acquisition banked 2931–2934. conservation and management of living match, a list of the banked match must Catalog of Federal Domestic marine resources. Fellows will work on be included with the application. Assistance (CFDA) Number: 11.431, thesis problems of public interest and Applicants must identify all match Climate and Atmospheric Research. relevance to NMFS under the guidance sources and amounts equal to that Application Deadline: Full of NMFS mentors at participating NMFS requested above. applications for all Competitions must Science Centers or Laboratories. The Intergovernmental Review: be received by 5 p.m. Eastern Time, NMFS-Sea Grant Fellowships in Marine Applications under this program are October 9, 2008. Letters of Intent for all Resource Economics meets NOAA’s subject to Executive Order 12372, Competitions, although not required, Mission goal of ‘‘Protect, Restore and ‘‘Intergovernmental Review of Federal should be received by 5 p.m. Eastern Manage the Use of Coastal and Ocean Programs.’’ Applicants should contact Time, August 11, 2008. LOIs should be Resources Through Ecosystem-Based their State Single Point of Contact submitted by e-mail to the identified Management.’’ (SPOC) to find out about and comply Competition Manager. Funding Availability: The NMFS-Sea with the States process under EO12372. Address for Submitting Proposals: 1. Grant Joint Graduate Fellowship The names and addresses of the SPOCs Letter of Intent Submission LOIs should Program in Marine Resource Economics

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expects to support two new fellowships students who are interested in careers Silver Spring, MD 20910; tel: (301) 734– for up to 2 years for each fellowship. related to the development and 1075; e-mail: [email protected]. Statutory Authority: Authority for the implementation of quantitative methods Eligibility: Prospective Fellows must Resource Economics Graduate for assessing the economics of the be United States citizens. At the time of Fellowship Program is provided by the conservation and management of living application, prospective Population following: 33 U.S.C. 1127(a). marine resources. Fellows will work on Dynamics Fellows must be admitted to Catalog of Federal Domestic thesis problems of public interest and a PhD degree program in population Assistance (CFDA) Number: 11.417, Sea relevance to NMFS under the guidance dynamics or a related field such as Grant Support. of NMFS mentors at participating NMFS applied mathematics, statistics, or Application Deadline: Applications Science Centers or Laboratories. The quantitative ecology at an institution of must be received by 4 pm, Eastern Time NMFS-Sea Grant Fellowships in higher education in the United States or February 20, 2009 by the National Sea Population Dynamics meets NOAA’s its territories, or submit a signed letter Grant Office (NSGO). For applications Mission goal of ‘‘Protect, Restore and from the institution indicating submitted through www.grants.gov, a Manage the Use of Coastal and Ocean provisional acceptance to a PhD degree date and time receipt indication is Resources Through Ecosystem-Based program conditional on obtaining included and will be the basis of Management.’’ financial support such as this determining timeliness. The State Sea Funding Availability: The Graduate fellowship. Applications must be Grant programs are encouraged to ask Fellowship Program awards at least two submitted by the institution of higher for applications from fellowship new PhD fellowships each year to education, which may be any such applicants a month before the due date students who are interested in careers institution in the United States or its to facilitate the entry of non-electronic related to the population dynamics of territories. applications into Grants.gov. living marine resources and the Cost Sharing Requirements: Of the Address for Submitting Proposals: development and implementation of $38,500 award, 50 percent ($19,250) Applications from Sea Grant programs quantitative methods for assessing their will be contributed by NMFS, 33 1⁄3 must be submitted through status. The award for each Fellowship, percent ($12,833) by the National Sea www.grants.gov. Facsimile transmission contingent upon the availability of Grant Office (NSGO), and 16 2⁄3 percent and electronic mail submission of Federal funds, will be a multi-year ($6,417) by the institution of higher applications will not be accepted. cooperative agreement in the amount of education as the required 50 percent Information Contacts: Contact Miguel $38,500 per year for up to three years. match of NSGO funds. Lugo, National Sea Grant College This involvement includes serving for Intergovernmental Review: Program, 1315 East-West Highway, 10–20 days aboard a research or Applications under this program are not Silver Spring, MD 20910; tel: (301) 734– commercial vessel during a scientific subject to Executive Order 12372, 1075; e-mail: [email protected]. survey or experimental activity. Intergovernmental Review of Federal Eligibility: Prospective Fellows must Additionally, the Fellow may work on Programs. be United States citizens. At the time of his/her thesis research or related 4. 2010 Dean John A. Knauss Marine application, prospective Marine activity at a participating NMFS facility. Policy Fellowship (Knauss Fellowship Resource Economics Fellows must be The Fellow’s work will be overseen by Program) admitted to a PhD degree program in a NMFS mentor who will provide natural resource economics or a related advice and guidance. Summary Description: This notice field at an institution of higher Statutory Authority: Authority for the announces that applications may be education in the United States or its Population Dynamics Graduate submitted for the Dean John A. Knauss territories or submit a signed letter from Fellowship Program is provided by the Marine Policy Fellowship (Knauss the institution indicating provisional following: 33 U.S.C. 1127(a). Fellowship). The Knauss Fellowship is acceptance to a PhD degree program Catalog of Federal Domestic a program initiated by the National conditional on obtaining financial Assistance (CFDA) Number: 11.417, Sea Oceanic and Atmospheric support such as this fellowship. Grant Support. Administration (NOAA) National Sea Applications must be submitted by the Application Deadline: Applications Grant Office (NSGO), in fulfilling its institution of higher education, which must be received by 4 p.m., Eastern broad educational responsibilities and may be any such institution in the Time February 20, 2009 by the National legislative mandate of the Sea Grant Act, United States or its territories. Sea Grant Office (NSGO). For to provide educational experience in the Cost Sharing Requirements: Of the applications submitted through policies and processes of the Legislative $38,500 award, 50 percent ($19,250) Grants.gov APPLY, a date and time and Executive Branches of the Federal will be contributed by NMFS, 33 1⁄3 receipt indication is included and will Government to graduate students in percent ($12,833) by the National Sea be the basis of determining timeliness. marine and aquatic-related fields. The Grant Office (NSGO), and 16 2⁄3 percent The State Sea Grant programs are Knauss Fellowship meets NOAA’s ($6,417) by the institution of higher encouraged to ask for applications from Mission goal of Protect, Restore and education as the required 50 percent fellowship applicants a month before Manage the Use of Coastal and Ocean match of NSGO funds. the due date to facilitate the entry of Resources Through Ecosystem-Based Intergovernmental Review: non-electronic applications into Management. Applications under this program are not Grants.gov. Funding Availability: The SGCP subject to Executive Order 12372, Address for Submitting Proposals: program receives and administers the Intergovernmental Review of Federal Applications from Sea Grant programs overall cooperative agreement of Programs. must be submitted through $44,000 per student on behalf of each www.grants.gov. Facsimile transmission Fellow selected from their program. Of 3. 2009 NMFS-Sea Grant Fellowships in and electronic mail submission of this amount, the local Sea Grant Population Dynamics applications will not be accepted. program provides $34,000 to each Summary Description: The Graduate Information Contacts: Contact Miguel Fellow for stipend and living expenses Fellowship Program generally awards Lugo, National Sea Grant College (per diem). $8,000 will be used to cover two new PhD fellowships each year to Program, 1315 East-West Highway, mandatory health insurance for the

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Fellow and moving expenses. Any R/SG, Rm 11718, Silver Spring, MD Catalog of Federal Domestic remaining funds of the $8,000 shall be 20910; tel: (301) 734–1077 x1075. Assistance (CFDA) Number: 11.431, used for the fellow during the Eligibility: Any student, regardless of Climate and Atmospheric Research. Fellowship year, first to satisfy citizenship, who, on February 20, 2009, Application Deadline: Letters of academic degree-related activities, and is in a graduate or professional program Intent (LOIs) submitted by Principal second for Fellowship-related activities. in a marine or aquatic-related field at a Investigators (PIs) must be received no Finally, up to $2,000 from the total United States accredited institution of later than 5 p.m. Eastern Daylight Time $44,000 can be used to cover placement higher education in the United States or (EDT) on 31 July 2008. LOIs received week costs. Indirect costs are not U.S. Territories may apply. after the deadline will not be reviewed, allowable from the Federal funds either Cost Sharing Requirements: There but in such cases PIs are still permitted for the Fellowships or for any costs will be the one-third required cost share to submit a full proposal. Response associated with the Fellowships, of the total cost of the award for those letters will be sent from NOAA no later including the $2,000 budgeted for applicants selected as legislative than 22 September 2008. Full proposals placement week. These costs, though, fellows. must be received no later than 5 p.m. can be denoted as matching funds. Intergovernmental Review: Eastern Daylight Time (EDT) on 30 During the Fellowship, the host may Applications under this program are not October 2008. Full proposals received provide supplemental funds for work- subject to Executive Order 12372, after the deadline will not be considered related travel by the Fellow. The SGCP Intergovernmental Review of Federal for funding. awards 30–50 agreements each year. Not Programs. Address for Submitting Proposals: less than 30 applicants will be selected, Letters of Intent (LOs) should be of which the selected applicants 5. FY 2009 Joint Hurricane Testbed submitted to the JHT Director—Dr. assigned to the Congress maybe limited Summary Description: The Office of Jiann-Gwo Jiing—preferably by e-mail to 10. Oceanic and Atmospheric Research at: [email protected]. Those Statutory Authority: 33 U.S.C. (OAR), National Oceanic and without e-mail access should send a 1127(b). Atmospheric Administration (NOAA), is printed copy to: Dr. Jiann-Gwo Jiing, Catalog of Federal Domestic soliciting LOIs (Letters of Intent) under Director, Joint Hurricane Testbed, Assistance (CFDA) Number: 11.417, Sea the United States Weather Research Tropical Prediction Center, 11691 SW. Grant Support. Program (USWRP), as administrated by 17th Street, Miami, FL 33165. Full Application Deadline: Applications the USWRP Joint Hurricane Testbed proposal packages must be submitted from prospective fellows to the State (JHT). This notice also provides through the www.grants.gov Web site. Sea Grant College Programs (SGCP) are guidelines for the submission of full For those without Internet access or for due February 20, 2009. Contact your proposals. This notice describes federal agency submissions, hard copy state Sea Grant program (see IV.A. of the opportunities and application proposal packages with original Federal Funding Opportunity for procedures for the transfer of relevant signatures should be addressed to program contact information) for research and technology advances into Dorothy Fryar, DOC/NOAA, Office of information on deadlines. Selected tropical cyclone analysis and forecast Weather & Air Quality Research, applications from the sponsoring SGCP operations. This notice calls for Routing Code R/WA, 1315 East-West are to be received in the National Sea researchers to submit proposals to test Highway, Room 11209, Silver Spring, Grant Office (NSGO) through Grants.gov and evaluate, and modify if necessary, MD 20910. Ms. Fryar’s phone number is no later than 5 p.m. Eastern Daylight in a quasi-operational environment, 301–734–1179. Time (EDT) on April 03, 2009. For their own scientific and technological Information Contacts: Please visit the applications submitted through research applications. Projects satisfying Joint Hurricane Testbed Web site for Grants.gov, a date and time receipt metrics for success and operational further information at: http:// indication is included and will be the constraints may be selected for www.nhc.noaa.gov/jht/index.shtml or basis of determining timeliness. operational implementation by the contact Dr. Jiann-Gwo Jiing, Director, Address for Submitting Proposals: operational center(s) after the Joint Hurricane Testbed, Tropical Eligible graduate students must submit completion of the JHT-funded work. Prediction Center, 11691 SW. 17th applications to the SGCP. The addresses The period of the award is from one to Street, Miami, FL 33165, phone (305) and contact information for each SGCP two years. This opportunity addresses 229–4443, or via e-mail at Jiann- can be found at http:// the NOAA mission goal of ‘‘Serving [email protected]. Any technical www.seagrant.noaa.gov/other/ Society’s Needs for Weather and Water questions addressed by Dr. Jiing (or his programsdirectors.html. The addresses Information.’’ authorized representative) about this can also be received from Miguel Lugo, Funding Availability: The estimate for JHT funding opportunity and the Knauss Fellowship Program Manager, total JHT funding that will be available answers will be posted on the JHT Web National Sea Grant College Program, in FY 2009 is $1,250,000, which will site. 1315 East-West Highway, R/SG, Rm likely be used to fund 10–15 new Eligibility: Eligible applicants are 11718, Silver Spring, MD 20910. After projects. Award amounts for previous institutions of higher education; other the State Sea Grant Program review, JHT grants have been mostly between nonprofits; commercial organizations; selected applications from the $50,000 and $200,000 per year. A foreign governments; organizations sponsoring SGCP must be submitted similar range is expected for this under the jurisdiction of foreign through www.grants.gov. SGCP without announcement. Initial and renewal governments; international Internet access may send hard copy funding of any JHT proposals is organizations; state, local and Indian proposals to Miguel Lugo at the above contingent upon availability of these tribal governments; and Federal address. funds. In no event will NOAA or the agencies. Applications from non-Federal Information Contacts: Contact Miguel Department of Commerce be responsible and Federal applicants will be Lugo, Knauss Fellowship Program for proposal preparation costs. competed against each other. Manager, National Sea Grant College Statutory Authority: 49 U.S.C. Cost Sharing Requirements: No cost Program, 1315 East-West Highway, 44720(b), 33 U.S.C. 883d. sharing is required under this program.

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Intergovernmental Review: submitting proposals may be available Cost Sharing Requirements: Cost- Applications under this program are not and will depend on OE funding levels. sharing is not required. subject to Executive Order 12372, Statutory Authority: 33 U.S.C. 883d. Intergovernmental Review: ‘‘Intergovernmental Review of Federal Catalog of Federal Domestic Applications under this program are Programs.’’ Assistance (CFDA) Number: 11.460, subject to Executive Order 12372, Special Oceanic and Atmospheric ‘‘Intergovernmental Review of Federal 6. FY 2009 Ocean Exploration Programs.’’ Applicants must contact Omnibus—Education Projects. Application Deadline: Completed pre- their State’s Single Point of Contact Summary Description: In prior years, proposals are required for all categories (SPOC) to find out about and comply OE has funded the development of and must be received by 5 p.m. (EDT) with the State’s process under EO educational products to enable teachers on August 29, 2008. Full proposal 12372. The names and addresses of the to bring NOAA science into classrooms submissions must be received by 5 p.m. SPOC’s are listed in the Office of throughout the country. With this (EDT) on October 21, 2008. Applications Management and Budget’s Web site: announcement, OE is seeking proposals received after the above deadlines will http://www.whitehouse.gov/omb/grants/ that will facilitate the use of NOAA not be considered. spoc.html. science in formal and informal Address for Submitting Proposals: 7. FY 2009 Ocean Exploration education environments by extending Pre-proposal submissions can be either Omnibus—Marine Archaeology the use of existing OE education by e-mail (preferred, send to Summary Description: Proposals for products, located on its Web site http:// ([email protected]) or by hard- exploration and discovery of significant oceanexplorer.noaa.gov, in school copy (see address below). If by e-mail, maritime heritage sites are the priority. districts and other learning centers please put your last name in the subject Submerged, previously subaerial, throughout the country. OE is seeking heading along with the words OE Pre- landscapes, shipwrecks, and other pre-proposals and full proposals to proposal, e.g., ‘‘Smith OE Pre-proposal.’’ maritime cultural sites are typical focus support its mission, consistent with Adobe PDF format is preferred. No subjects of the program. Proposals will NOAA’s Strategic Plan (http:// facsimile pre-proposals will be emphasize the early phases of field www.nrc.noaa.gov), to further ocean accepted. Full proposal submissions archaeology: searching, locating, science education and ocean literacy. It must be through Grants.gov, except for evaluating or inventorying sites. This is anticipated that a total of those non-Federal applicants without Announcement does not invite approximately $300,000 will be Internet access and Federal applicants, proposals to support later phases of available through this Ocean who may submit hard copies to ATTN: archaeological research, such as Exploration Education announcement. Dr. Nicolas Alvarado, Proposal Manager, intensive site excavations, and major Only ocean education proposals will be NOAA Office of Ocean Exploration & conservation projects. All applicants funded, any other kind of project will Research, SSMC3, 10th Floor, 1315 East- must convincingly describe: The not be reviewed. Applicants are West Highway, Silver Spring, Maryland archaeological significance of their encouraged to visit the Ocean Explorer 20910. (see Address below.) No e-mail site(s), and their importance to human Web site (http:// or facsimile proposal submissions will history; how their research fits within www.oceanexplorer.noaa.gov) to be accepted. the realm of exploration; why their familiarize themselves with past and Information Contacts: For further methodologies are innovative and make present OE-funded activities. information contact the NOAA Office of the most economical use of current Funding Availability: In anticipation Ocean Exploration at (301) 734–1015 or marine technology. OE is seeking pre- of the FY09 President’s Budget, OE submit inquiries via e-mail to the proposals and full proposals to support anticipates a total of approximately Frequently Asked Questions address: its mission, consistent with NOAA’s $300,000 will be available through this [email protected].; e-mail Strategic Plan (http:// Ocean Exploration Education inquiries should include the Principal www.nrc.noaa.gov), to search, announcement. Depending on the Investigator’s name in the subject investigate, and document marine quality and quantity of proposals heading. Inquiries can be mailed to: archaeological resources. OE is seeking received, a minimum of six projects are ATTN: Dr. Nicolas Alvarado, NOAA proposals for exploration and discovery expected to be funded, resulting in an Office of Ocean Exploration, 1315 East- of significant maritime heritage sites, average award level of approximately West Highway, SSMC3, 10th Floor, including submerged, previously $50,000. The OE Director may hold-over Silver Spring, Maryland 20910. subaerial, landscapes, shipwrecks, select proposals submitted for 2009 Eligibility: Eligible applicants are aircraft, and other maritime cultural funding for consideration in 2010. The institutions of higher education; other sites. Competitive OE proposals will be amount of funding available through nonprofits; commercial organizations; bold, innovative and interdisciplinary this announcement is subject to the final foreign governments; organizations in their approach and objectives. FY09 appropriation for Ocean under the jurisdiction of foreign Proposals will emphasize the early Exploration. Publication of this governments; international phases of field archaeology: searching, announcement does not obligate NOAA organizations; state, local and Indian locating, evaluating or inventorying to fund any specific project or to tribal governments; and Federal sites. Marine Archaeology projects may obligate all or any part of available agencies. PLEASE NOTE: Before non- be conducted in any of the world’s funds. There is no guarantee that NOAA Federal applicants may be oceans, coasts or Great Lakes regions, on sufficient funds will be available to funded, they must demonstrate that they any suitable platform, vessel or other initiate or continue research activities have legal authority to receive funds charter. It is anticipated that a total of where funding has been recommended from another Federal agency in excess approximately $400,000 will be by OE. The exact amount of funds that of their appropriation. Because this available through this announcement. OE may recommend be granted will be announcement is not proposing to Only marine archaeology proposals will determined in pre-award negotiations procure goods or services from be funded. Any other kind of project between the applicant and NOAA applicants, the Economy Act (31 U.S.C. will not be reviewed. Applicants are representatives. Future opportunities for 1535) is not an appropriate legal basis. encouraged to visit the Ocean Explorer

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Web site (http:// Address for Submitting Proposals: 8. FY 2009 Ocean Exploration www.oceanexplorer.noaa.gov) to Pre-proposal submissions can be either Omnibus—Ocean Exploration familiarize themselves with past and by E-mail (preferred, send to Summary Description: OE is seeking present OE-funded activities. [email protected]) or by hard- pre-proposals and full proposals to Background on how to apply and the copy (send three copies to the mailing support its mission, consistent with required proposal cover sheets are address below). If by E-mail, please put NOAA’s Strategic Plan (http:// accessible through the OE Office Web your last name in the subject heading www.nrc.noaa.gov), to search, site at http://www.explore.noaa.gov/ along with the words OER Pre-proposal, investigate, and document poorly- opportunity/welcome.html. The e.g., ‘‘Smith OER Pre-proposal.’’ Adobe known and unknown areas of the ocean program priorities for this opportunity PDF format is preferred. No facsimile and Great Lakes through support NOAAs mission support goal pre-proposals will be accepted. Full interdisciplinary exploration, and to of: Ecosystems—Protect, Restore, and proposal submissions for non-Federal advance and disseminate knowledge of Manage Use of Coastal and Ocean applicants must be submitted through the ocean environment and its physical, Resources through Ecosystem-Based Grants.gov. Federal applicants or chemical, and biological resources. Management. Full proposal submissions applicants without Internet access may Competitive OE proposals will be bold, for non-Federal applicants must be submit hard-copies to: ATTN: Dr. innovative and interdisciplinary in their submitted through Grants.gov. Federal Nicolas Alvarado, Proposal Manager, approach to Ocean Exploration. NOAA applicants or applicants without NOAA Office of Ocean Exploration & OE anticipates a total of approximately Research, SSMC III, 10th Floor, 1315 Internet access may submit hard-copies $1,400,000 including costs for ship and East-West Highway, Silver Spring, MD to: ATTN: Dr. Nicolas Alvarado, submersible assets will be available 20910. No E-mail or facsimile full Proposal Manager, NOAA Office of through this announcement. Only proposal submissions will be accepted. Ocean Exploration & Research, SSMC exploratory proposals will be funded, III, 10th Floor, 1315 East-West Highway, Information Contacts: For further information contact the NOAA Office of any other kind of project will not be Silver Spring, MD 20910. No E-mail or reviewed. Applicants are encouraged to facsimile full proposal submissions will Ocean Exploration at (301) 734–1015 or submit inquiries via E-mail to the visit the Ocean Explorer Web site be accepted. (http://www.oceanexplorer.noaa.gov) to Funding Availability: In anticipation Frequently Asked Questions address: [email protected].; E-mail inquiries familiarize themselves with past and of the FY09 President’s Budget, OE present OE-funded activities. anticipates a total of approximately should include the Principal Investigator’s name in the subject Background on how to apply and the $400,000 will be available through this required proposal cover sheets are announcement for Marine Archaeology. heading. Inquiries can be mailed to ATTN: Dr. Nicolas Alvarado (Proposal accessible through the OE Office Web OE anticipates supporting site at http://www.explore.noaa.gov. The approximately four awards through this Manager), NOAA Office of Ocean Exploration, 1315 East-West Highway, program priorities for this opportunity solicitation, averaging $100,000. The OE SSMC3, 10th Floor, Silver Spring, MD support NOAA’s mission support goal Director may hold-over select proposals 20910. of: Ecosystems—Protect, Restore, and submitted for 2009 funding for Eligibility: Eligible applicants are Manage Use of Coastal and Ocean consideration in 2010. The amount of institutions of higher education; other Resources through Ecosystem-Based funding available through this nonprofits; commercial organizations; Management. Pre-proposal submissions announcement is subject to the final foreign governments; organizations can be either by E-mail (preferred, send FY09 appropriation for Ocean under the jurisdiction of foreign to [email protected] or by hard- Exploration. Publication of this governments; international copy (send three copies to the mailing announcement does not obligate NOAA organizations; state, local and Indian address below). If by E-mail, please put to fund any specific project or to tribal governments; and Federal your last name in the subject heading obligate all or any part of available agencies. PLEASE NOTE: Before non- along with the words OER Pre-proposal, funds. There is no guarantee that NOAA Federal applicants may be e.g., ‘‘Smith OER Pre-proposal.’’ Adobe sufficient funds will be available to funded, they must demonstrate that they PDF format is preferred. No facsimile initiate or continue research activities have legal authority to receive funds pre-proposals will be accepted. Full where funding has been recommended from another Federal agency in excess proposal submissions for non-Federal by OE. The exact amount of funds that of their appropriation. Because this applicants must be submitted through OE may recommend be granted will be announcement is not proposing to Grants.gov. Federal applicants or determined in pre-award negotiations procure goods or services from applicants without Internet access may between the applicant and NOAA applicants, the Economy Act (31 U.S.C. submit hard-copies to: ATTN: Dr. representatives. Future opportunities for 1535) is not an appropriate legal basis. Nicolas Alvarado, Proposal Manager, submitting proposals may be available Cost Sharing Requirements: Cost- NOAA Office of Ocean Exploration & and will depend on OE funding levels. sharing is not required. Research, SSMC III, 10th Floor, 1315 Statutory Authority: 33 U.S.C. 883d. Intergovernmental Review: East-West Highway, Silver Spring, Catalog of Federal Domestic Applications under this program are Maryland 20910. No E-mail or facsimile Assistance (CFDA) Number: 11.460, subject to Executive Order 12372, full proposal submissions will be Special Oceanic and Atmospheric ‘‘Intergovernmental Review of Federal accepted. Projects. Programs.’’ Applicants must contact Funding Availability: In anticipation Application Deadline: Completed pre- their State’s Single Point of Contact of the FY09 President’s Budget, OE proposals are required for all categories (SPOC) to find out about and comply anticipates a total of approximately and must be received by 5 p.m. (EDT) with the State’s process under EO $1,400,000 will be available through on August 29, 2008. Full proposal 12372. The names and addresses of the this announcement. Depending on the submissions must be received by 5 p.m. SPOC’s are listed in the Office of quality and quantity of proposals (EDT) on October 21, 2008. Applications Management and Budget’s Web site: received, OE anticipates supporting received after the above deadlines will http://www.whitehouse.gov/omb/grants/ approximately 4 awards through this not be considered. spoc.html. solicitation, resulting in an average

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award level of approximately $350,000. Exploration 1315 East-West Highway spread of invasive species, and The OE Director may hold-over select SSMC3, 10th Floor, Silver Spring, evaluation of management actions and proposals submitted for 2009 funding Maryland 20910. strategies. Specific priorities within for consideration in 2010. The amount Eligibility: Eligible applicants are these broad areas, and geographic of funding available through this institutions of higher education; other preferences, will be indicated in each announcement is subject to the final nonprofits; commercial organizations; NURP Center’s request for proposals. FY09 appropriation for Ocean foreign governments; organizations The NURP Center external coral reef Exploration. Publication of this under the jurisdiction of foreign research grants programs are part of the announcement does not obligate NOAA governments; international NOAA Coral Reef Conservation Grants to fund any specific project or to organizations; state, local and Indian Program under the Coral Reef obligate all or any part of available tribal governments; and Federal Conservation Act of 2000. The program funds. There is no guarantee that agencies. PLEASE NOTE: Before non- priorities for this opportunity support sufficient funds will be available to NOAA Federal applicants may be NOAA’s mission support goal of: initiate or continue research activities funded, they must demonstrate that they Ecosystems—Protect, Restore, and where funding has been recommended have legal authority to receive funds Manage Use of Coastal and Ocean by OE. The exact amount of funds that from another Federal agency in excess Resources through Ecosystem-Based OE may recommend be granted will be of their appropriation. Because this Management. determined in pre-award negotiations announcement is not proposing to Funding Availabilty: Approximately between the applicant and NOAA procure goods or services from $600,000 may be available in FY 2009 representatives. Future opportunities for applicants, the Economy Act (31 U.S.C. to support awards under this program. submitting proposals may be available 1535) is not an appropriate legal basis. Statutory Authority: Statutory and will depend on OE funding levels. Cost Sharing Requirements: Cost- authority for this program is provided Statutory Authority: 33 U.S.C. 883d. sharing is not required. under 16 U.S.C. 6403. Catalog of Federal Domestic Intergovernmental Review: Catalog of Federal Domestic Assistance (CFDA) Number: 11.460, Applications under this program are Assistance (CFDA) Number: 11.430, Special Oceanic and Atmospheric subject to Executive Order 12372, National Undersea Research Program. Projects. ‘‘Intergovernmental Review of Federal Information Contact: Kimberly Application Deadline: Completed pre- Programs.’’ Applicants must contact Puglise, 301–734–1007 or E-mail at proposals are required for all categories their State’s Single Point of Contact [email protected]. and must be received by 5 p.m. (EDT) (SPOC) to find out about and comply Announcements requesting proposals on August 29, 2008. Full proposal with the State’s process under EO will be announced on: http:// submissions must be received by 5 p.m. 12372. The names and addresses of the www.uncw.edu/nurc, for the NURP (EDT) on October 21, 2008. Applications SPOC’s are listed in the Office of Center for the Southeastern U.S. and the received after the above deadlines will Management and Budget’s Web site: Gulf of Mexico; on http:// not be considered. http://www.whitehouse.gov/omb/grants/ www.soest.hawaii.edu/HURL, for the Address for Submitting Proposals: spoc.html. NURP Center for Hawaii and the Pre-proposal submissions can be either IV. NOAA Non-Competitive Project Western Pacific, the Hawaii Undersea by E-mail (preferred, send to Research Laboratory. [email protected] or by hard- The following entry provides the Cost Sharing Requirements: The copy (send three copies to the mailing description and requirements of awards require a 1:1 federal to non- address below). If by E-mail, please put NOAA’s noncompetitive project. federal match. your last name in the subject heading 1. NOAA Coral Reef Conservation Grant Intergovernmental Review: along with the words OER Pre-proposal, Applications under this program are not e.g., ‘‘Smith OER Pre-proposal.’’ Adobe Program—Coral Reef Ecosystem Research Grants subject to Executive Order 12372, PDF format is preferred. No facsimile ‘‘Intergovernmental Review of Federal pre-proposals will be accepted. Full Summary Description: The NOAA Programs.’’ proposal submissions for non-Federal Coral Reef Conservation Grant Program applicants must be submitted through announces that it is providing funding Limitation of Liability Grants.gov. Federal applicants or to the NOAA Undersea Research Funding for programs listed in this applicants without Internet access may Program (NURP) Centers for: the notice is contingent upon the submit hard-copies to: ATTN: Dr. Southeastern U.S., Florida, and Gulf of availability of Fiscal Year 2009 Nicolas Alvarado, Proposal Manager, Mexico Region, the Southeast U.S. and appropriations. Applicants are hereby NOAA Office of Ocean Exploration & Gulf of Mexico Center; and the Hawaii given notice that funds have not yet Research, SSMC III, 10th Floor, 1315 and Western Pacific Region, the Hawaii been appropriated for the programs East-West Highway, Silver Spring, Undersea Research Laboratory, to listed in this notice. In no event will Maryland 20910. No E-mail or facsimile administer two external, competitive NOAA or the Department of Commerce full proposal submissions will be coral reef ecosystem research grants be responsible for proposal preparation accepted. programs. Research supported through costs if these programs fail to receive Information Contacts: For further these programs will address priority funding or are cancelled because of information contact the NOAA Office of information needs identified by coral other agency priorities. Publication of Ocean Exploration at (301) 734–1015 or reef ecosystem managers and scientists. this announcement does not oblige submit inquiries via E-mail to the Broad coral reef research priorities NOAA to award any specific project or Frequently Asked Questions address: supported through these programs may to obligate any available funds. [email protected]. E-mail include research on coral disease and inquiries should include the Principal bleaching, fisheries population Universal Identifier Investigator’s name in the subject dynamics and ecology, coral reef Applicants should be aware that, they heading. Inquiries can be mailed to: restoration and mitigation approaches, are required to provide a Dun and ATTN: Dr. Nicolas Alvarado (Proposal effects of anthropogenic stressors on Bradstreet Data Universal Numbering Manager) NOAA Office of Ocean benthic invertebrates, impacts and System (DUNS) number during the

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application process. See the October 30, Compliance With Department of access to export-controlled information 2002 Federal Register, (67 FR 66177) for Commerce Bureau of Industry and technology. Security Export additional information. Organizations NOAA implementation of Homeland can receive a DUNS number at no cost Administration Regulations (a) This Security Presidential Directive—12 by calling the dedicated toll-free DUNS clause applies to the extent that this If the performance of a financial Number request line at 1–866–705–5711 financial assistance award involves or via the Internet http:// access to export-controlled information assistance award, if approved by NOAA, www.dunandbradstreet.com. or technology. (b) In performing this requires recipients to have physical financial assistance award, the recipient access to Federal premises for more than National Environmental Policy Act may gain access to export-controlled 180 days or access to a Federal (NEPA) information or technology. The information system, any items or services delivered under a financial NOAA must analyze the potential recipient is responsible for compliance with all applicable laws and regulations assistance award shall comply with the environmental impacts, as required by Department of Commerce personal the National Environmental Policy Act regarding export-controlled information and technology, including deemed identity verification procedures that (NEPA), for applicant projects or exports. The recipient shall establish implement Homeland Security proposals which are seeking NOAA and maintain throughout performance Presidential Directive—12, FIPS PUB federal funding opportunities. Detailed of the financial assistance award 201, and the Office of Management and information on NOAA compliance with effective export compliance procedures Budget Memorandum M–05–24. The NEPA can be found at the following at non-NOAA facilities. At a minimum, recipient shall insert this clause in all NOAA NEPA Web site: http:// these export compliance procedures subawards or contracts when the www.nepa.noaa.gov/, including our must include adequate controls of subaward recipient or contractor is NOAA Administrative Order 216–6 for physical, verbal, visual, and electronic required to have physical access to a NEPA, http://www.nepa.noaa.gov/ access to export-controlled information Federally controlled facility or access to NAO216—6—TOC.pdf, NEPA and technology. (c) Definitions (1) a Federal information system. Questionnaire, http:// Deemed export. The Export The Department of Commerce Pre- www.nepa.noaa.gov/questionnaire.pdf, Administration Regulations (EAR) Award Notification Requirements for and the Council on Environmental define a deemed export as any release Grants and Cooperative Agreements. The Department of Commerce Pre- Quality implementation regulations, of technology or source code subject to Award Notification Requirements for http://ceq.eh.doe.gov/nepa/regs/ceq/ the EAR to a foreign national, both in Grants and Cooperative Agreements toc— ceq.htm. Consequently, as part of the United States and abroad. Such contained in the Federal Register notice an applicant’s package, and under their release is ‘‘deemed’’ to be an export to of February 11, 2008 (73 FR 7696) are description of their program activities, the home country of the foreign applicable to this solicitation. applicants are required to provide national. 15 CFR 734.2(b)(2)(ii). (2) detailed information on the activities to Export-controlled information and Paperwork Reduction Act be conducted, locations, sites, species technology. Export-controlled This document contains collection-of- and habitat to be affected, possible information and technology is information requirements subject to the construction activities, and any information and technology subject to Paperwork Reduction Act (PRA). The environmental concerns that may exist the EAR (15 CFR parts 730 et seq.), use of Standard Forms 424, 424A, 424B, (e.g., the use and disposal of hazardous implemented by the DOC Bureau of 424C, 424D, and SF–LLL has been or toxic chemicals, introduction of non- Industry and Security, or the approved by OMB under the respective indigenous species, impacts to International Traffic I Arms Regulations control numbers 4040–0004, 0348–0044, endangered and threatened species, (ITAR) (22 CFR parts 120–130), 4040–0007, 0348–0041, 4040–0009, and aquaculture projects, and impacts to implemented by the Department of 0348–0046. Notwithstanding any other coral reef systems). In addition to State, respectively. This includes, but is provision of law, no person is required providing specific information that will not limited to, dual-us items, defense to respond to, nor shall any person be serve as the basis for any required articles and any related assistance, subject to a penalty for failure to comply impact analyses, applicants may also be services, software or technical data as with, a collection of information subject defined in the EAR and ITAR. (d) The requested to assist NOAA in drafting of to the requirements of the PRA unless recipient shall control access to all an environmental assessment, if NOAA that collection of information displays a export-controlled information and determines an assessment is required. currently valid OMB control number. technology that it possesses or that Applicants will also be required to comes into its possession in Executive Order 12866 cooperate with NOAA in identifying performance of a financial assistance This notice has been determined to be feasible measures to reduce or avoid any award, to ensure that access is not significant for purposes of Executive identified adverse environmental restricted, or licensed, as required by Order 12866. Executive Order 13132 impacts of their proposal. The failure to applicable Federal laws, Executive (Federalism). It has been determined do so shall be grounds for not selecting Orders, and/or regulations. (e) Nothing that this notice does not contain policies an application. In some cases if in the terms of this financial assistance with Federalism implications as that additional information is required after award is intended to change, supersede, term is defined in Executive Order an application is selected, funds can be or waive and of the requirements of 13132. withheld by the Grants Officer under a applicable Federal laws, Executive special award condition requiring the Orders or regulations. (f) The recipient Administrative Procedure Act/ recipient to submit additional shall include this clause, including this Regulatory Flexibility Act environmental compliance information paragraph (f), in all lower tier Prior notice and an opportunity for sufficient to enable NOAA to make an transactions (subawards, contracts, and public comment are not required by the assessment on any impacts that a project subcontracts) under the financial Administrative Procedure Act or any may have on the environment. assistance award that may involve other law for rules concerning public

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property, loans, grants, benefits, and requirements of the Regulatory Dated: July 3, 2008. contracts (5 U.S.C. 553(a)(2)). Because Flexibility Act (5 U.S.C. 601 et seq.) are Dan Clever, notice and opportunity for comment are inapplicable. Therefore, a regulatory Deputy Director, Acquisition and Grants not required pursuant to 5 U.S.C. 553 or flexibility analysis has not been Office, National Oceanic and Atmospheric any other law, the analytical prepared. Administration. [FR Doc. E8–15720 Filed 7–10–08; 8:45 am] BILLING CODE 3510–PJ–P

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Part IV

Securities and Exchange Commission 17 CFR Parts 229, 230, et al. References to Ratings of Nationally Recognized Statistical Rating Organizations; Security Ratings; Proposed Rules

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SECURITIES AND EXCHANGE Reference Room, 100 F Street, NE., the credit rating procedures and COMMISSION Washington, DC 20549, on official methodologies of NRSROs in light of the business days between the hours of 10 role they played in determining the 17 CFR Parts 240, 242, and 249 a.m. and 3 p.m. All comments received credit ratings for securities that were the [Release No. 34–58070; File No. S7–17–08] will be posted without change; we do subject of the recent turmoil in the not edit personal identifying credit markets. RIN 3235–AK17 information from submissions. You Today’s proposals comprise the third should submit only information that References to Ratings of Nationally of these three rulemaking initiatives you wish to make publicly available. Recognized Statistical Rating relating to credit ratings by an NRSRO Organizations FOR FURTHER INFORMATION CONTACT: that the Commission is proposing. This Michael A. Macchiaroli, Associate release, together with two companion AGENCY: Securities and Exchange Director, Thomas K. McGowan, releases, sets forth the results of the Commission. Assistant Director, Randall W. Roy, Commission’s review of the ACTION: Proposed rule. Branch Chief, and Joseph I. Levinson, requirements in its rules and forms that Attorney (Net Capital Requirements and rely on credit ratings by an NRSRO. The SUMMARY: This is one of three releases Customer Protection) at (202) 551–5510; proposals also address recent that the Securities and Exchange Michael Gaw, Assistant Director, Brian recommendations issued by the Commission (‘‘Commission’’) is Trackman, Special Counsel, and Sarah President’s Working Group on Financial publishing simultaneously relating to Albertson, Attorney (Alternative Markets (‘‘PWG’’), the Financial the use in its rules and forms of credit Trading Systems) at (202) 551–5602; Stability Forum (‘‘FSF’’), and the ratings issued by nationally recognized Paula Jenson, Deputy Chief Counsel, Technical Committee of the statistical rating organizations Joshua Kans, Senior Special Counsel, International Organization of Securities (‘‘NRSROs’’). In this release, the Linda Stamp Sundberg, Senior Special Commissions (‘‘IOSCO’’).5 Consistent Commission proposes to amend various Counsel (Confirmation of Transactions) with these recommendations, the rules and forms under the Securities at (202) 551–5550; Josephine J. Tao, Commission is considering whether the Exchange Act of 1934 (‘‘Exchange Act’’) Assistant Director, Elizabeth A. Sandoe, inclusion of requirements related to that rely on NRSRO ratings. The Branch Chief, and Bradley Gude, ratings in its rules and forms has, in proposed amendments are designed to Special Counsel (Regulation M) at (202) effect, placed an ‘‘official seal of address concerns that the reference to 551–5720; or Catherine Moore, Counsel approval’’ on ratings that could NRSRO ratings in Commission rules and to the Director at (202) 551–5710, adversely affect the quality of due forms may have contributed to an undue Division of Trading and Markets, diligence and investment analysis. The reliance on NRSRO ratings by market Securities and Exchange Commission, Commission believes that today’s participants. 100 F Street, NE., Washington, DC proposals could reduce undue reliance DATES: Comments should be received on 20549–6628. on credit ratings and result in or before September 5, 2008. SUPPLEMENTARY INFORMATION: improvements in the analysis that underlies investment decisions. ADDRESSES: Comments may be I. Introduction submitted by any of the following II. Background methods: On June 16, 2008, in furtherance of the Credit Rating Agency Reform Act of The Commission first used the term Electronic Comments 2006,1 the Commission published for NRSRO in our rules in 1975 in the net • Use the Commission’s Internet notice and comment two rulemaking capital rule for broker-dealers, Rule comment form (http://www.sec.gov/ initiatives.2 The first proposes 15c3–1 under the Exchange Act (‘‘Net rules/proposed.shtml); or additional requirements for NRSROs 3 Capital Rule’’) 6 as an objective • Send an e-mail to rule- that were directed at reducing conflicts benchmark to prescribe capital charges [email protected]. Please include File of interests in the credit rating process, for different types of debt securities. Number S7–17–08 on the subject line; fostering competition and comparability Since then, we have used the or among credit rating agencies, and designation in a number of regulations • Use the Federal eRulemaking Portal increasing transparency of the credit under the federal securities laws. (http://www.regulations.gov). Follow the rating process.4 The second is designed Although we originated the use of the instructions for submitting comments. to improve investor understanding of term NRSRO for a narrow purpose in the risk characteristics of structured our own regulations, ratings by NRSROs Paper Comments finance products. Those proposals • today are used widely as benchmarks in Send paper comments in triplicate address concerns about the integrity of federal and state legislation, rules issued to Secretary, Securities and Exchange by other financial regulators, in the Commission, 100 F Street, NE., 1 Public Law 109–291, 120 Stat. 1327 (2006). United States and abroad, and private Washington, DC 20549–1090. 2 Proposed Rules for Nationally Recognized Statistical Rating Organizations, Securities financial contracts. All submissions should refer to File Exchange Act Release No. 57967 (June 16, 2008), 73 Number S7–17–08. This file number FR 36212 (June 25, 2008). 5 See President’s Working Group on Financial should be included on the subject line 3 As described in more detail below, an NRSRO Markets, Policy Statement on Financial Market if e-mail is used. To help us process and is an organization that issues ratings that assess the Developments (March 2008), available at http:// review your comments more efficiently, creditworthiness of an obligor itself or with regard www.ustreas.gov (‘‘PWG Statement’’); The Report of to specific securities or money market instruments, the Financial Stability Forum on Enhancing Market please use only one method. The has been in existence as a credit rating agency for and Institutional Resilience (April 2008), available Commission will post all comments on at least three years, and meets certain other criteria. at http://www.fsforum.org (‘‘FSF Report’’); the Commission’s Internet Web site The term is defined in section 3(a)(62) of the Technical Committee of the International (http://www.sec.gov/rules/ Securities Exchange Act. A credit rating agency Organization of Securities Commissions, must apply with the Commission to register as an Consultation Report: The Role of Credit Rating proposed.shtml). Comments are also NRSRO, and currently there are nine registered Agencies in Structured Finance Markets (March available for public inspection and NRSROs. 2008), page 9, available at http://www.iosco.org. copying in the Commission’s Public 4 See Press Release No. 2008–110 (June 11, 2008). 6 17 CFR 240.15c3–1.

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Referring to NRSRO ratings in framework, we adopted Rule 3a1–1 observing that some ATSs likely were regulations was intended to provide a under the Exchange Act,10 Regulation above the volume thresholds of Rule clear reference point to both regulators ATS,11 and Forms ATS and ATS–R. 3a1–1, the Commission did not at the and market participants. Increasingly, Rule 3a1–1(a) provides an exemption time believe it was appropriate to we have seen clear disadvantages of from the Exchange Act definition of revoke the exemption for any such using the term in many of our ‘‘exchange’’—and thus the requirement ATS.19 regulations. Foremost, there is a risk to register as an exchange—for a trading The Commission set forth eight that investors interpret the use of the system that, among other things, is in classes of securities in any one of which term in laws and regulations as an compliance with Regulation ATS.12 an ATS might achieve ‘‘dominant’’ endorsement of the quality of the credit Rule 3a1–1(b) contains an exception to status: (1) Equity securities; (2) listed ratings issued by NRSROs, which may the exemption from the exchange options; (3) unlisted options; (4) have encouraged investors to place definition. Under this exception, the municipal securities; (5) investment undue reliance on the credit ratings Commission may require a trading grade corporate debt securities; (6) non- issued by these entities. In addition, as system that is a ‘‘substantial market’’ to investment grade corporate debt demonstrated by recent events,7 there register as a national securities exchange securities; (7) foreign corporate debt has been increasing concern about if it finds that such action is necessary securities; and (8) foreign sovereign debt ratings and the ratings process. Further, or appropriate in the public interest or securities.20 Under the definitions by referencing ratings in the consistent with the protection of provided in Rule 3a1–1, investment Commission’s rules, market participants investors.13 Specifically, the grade and non-investment grade operating pursuant to these rules may be Commission may—after notice to an corporate debt securities have three vulnerable to failures in the ratings ATS and an opportunity for it to elements in common. They are process. In light of this, the Commission respond—require the ATS to register as securities that: (1) Evidence a liability of proposes to amend the regulations. an exchange if, during three of the the issuer of such security; (2) have a We have identified a small number of preceding four calendar quarters, the fixed maturity date that is at least one rules and forms, however, where we ATS had: (1) 50% or more of the average year following the date of issuance; and believe it is appropriate to retain the daily dollar trading volume in any (3) are not exempted securities, as reference to NRSRO ratings. These rules security and 5% or more of the average defined in Section 3(a)(12) of the and forms generally relate to non-public daily dollar trading volume in any class Exchange Act.21 The distinguishing reporting or recordkeeping requirements of securities; or (2) 40% or more of the characteristic of an investment grade we use to evaluate the financial stability average daily dollar volume in any class corporate debt security under our 14 of large brokers or dealers or their of securities. current rules is that it has been rated in counterparties and are unlikely to As the Commission explained in the one of the four highest categories by at contribute to any undue reliance on Regulation ATS Adopting Release, it least one NRSRO. A non-investment NRSRO ratings by market participants.8 was reserving the right to require a grade corporate debt security under our ‘‘dominant’’ ATS to register as an current rules is a corporate debt security III. Proposed Amendments exchange.15 The Commission noted, for that has not received such a rating. We are proposing to remove example, that ‘‘it may not be consistent We preliminarily believe that references to NRSROs in the following with the protection of investors or in the distinguishing investment grade rules and forms: Rule 3a1–1, Rule 10b– public interest for a trading system that corporate debt securities and non- 10, Rule 15c3–1, Rule 15c3–3, Rules 101 is the dominant market, in some investment grade corporate debt and 102 of Regulation M, Regulation important segment of the securities securities as separate classes of ATS, Form ATS–R, Form PILOT, and market, to be exempt from registration securities under Rule 3a1–1 is not Form X–17A–5 Part IIB. as an exchange if competition cannot be necessary to fulfill the purposes of that relied upon to ensure fair and efficient rule. We preliminary believe instead A. Proposed Amendments to Rule 3a1– trading structures.’’ 16 The Commission that combining all corporate debt 1, Regulation ATS, Form ATS–R, and also stated that it might be necessary to securities into a single class for Form PILOT require an ATS to register as an purposes of assessing whether an In 1998, we established a new exchange if it ‘‘would create systemic alternative trading system is framework for the regulation of risk or lead to instability in the ‘‘dominant’’ is appropriate. exchanges and alternative trading securities markets’ infrastructure.’’ 17 Accordingly, we propose to amend Rule systems (‘‘ATSs’’).9 That framework The Commission made clear that its 3a1–1 by replacing paragraphs (b)(3)(v) allowed an ATS to choose whether to authority under Rule 3a1–1 was and (b)(3)(vi) which define investment register as a national securities exchange discretionary: ‘‘Although the standard grade corporate debt securities and non- or to register as a broker-dealer and for denying or withholding the investment grade debt securities, comply with the requirements of exemption is based on objective factors, respectively, with a single category Regulation ATS. As part of this the Commission has discretion to ‘‘corporate debt securities’’ in paragraph initiate any process to consider whether (b)(3)(v).22 This new definition would 7 See Proposed Rules for National Recognized to revoke a particular entity’s exemption retain verbatim the three elements Statistical Rating Organizations, Securities under the rule.’’ 18 Thus, while common to the existing definitions of Exchange Act Release No. 57967. investment grade and non-investment 8 These include Rules 15c3–1g(c)(1)(i), 15c3– 10 17 CFR 240.3a1–1. grade debt securities. The 5% and 40% 1g(e)(2)(i), 17i–5, and 17i–8, which impose certain 11 17 CFR 242.300 to 242.303. thresholds also would remain recordkeeping and reporting requirements for 12 See 17 CFR 240.3a1–1(a)(2). ultimate holding companies of broker-dealers and 13 See 17 CFR 240.3a1–1(b); Regulation ATS of supervised investment bank holding companies, 19 See id. at 70858. Adopting Release, 63 FR at 70857. and Forms 17–H and X–17A–5 Part IIB, which 20 See 17 CFR 240.3a1–1(b)(3). 14 See 17 CFR 240.3a1–1(b)(1). require reports regarding the risk exposures of large 21 Compare 17 CFR 240.3a1–1(b)(3)(v) with 17 15 broker-dealers and OTC derivatives dealers. See 63 FR at 70857. CFR 240.3a1–1(b)(3)(vi). 9 See Securities Exchange Act Release No. 40760 16 Id. at 70858. 22 Existing paragraphs (b)(3)(vii) and (b)(3)(viii) (December 8, 1998), 63 FR 70844 (December 22, 17 Id. would be unchanged but redesignated as 1998) (‘‘Regulation ATS Adopting Release’’). 18 Id. at 70857–58. paragraphs (b)(3)(vi) and (b)(3)(vii), respectively.

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unchanged. Under the proposed combination of investment grade and must comply with the access amendment to Rule 3a1–1, the non-investment grade corporate debt requirements set out in Rule 301(b)(5) if, Commission could, for example, securities into a single class, it should with respect to corporate debt securities, determine that an ATS must register as adopt lower thresholds at which an ATS such system accounts for 5% or more of an exchange if the system had—during that trades corporate debt securities the average daily volume traded in the three of the preceding four calendar should be required to register as an United States for the requisite number quarters—50% or more of the average exchange. If so, what should those of months. The 5% threshold at which daily dollar trading volume in any thresholds be and why? an ATS would have to grant fair access security and 5% or more of the average We are proposing similar changes to to its system also would remain daily dollar trading volume in corporate Regulation ATS, which establishes unchanged.28 As with the proposed debt securities, or 40% of the average certain requirements applicable to ATSs changes to Rule 3a1–1, the other classes daily dollar trading volume in corporate that choose to register as broker-dealers of securities would remain unchanged. debt securities.23 and comply with Regulation ATS in lieu In addition, Rule 301(b)(6) of The Commission preliminarily of exchange registration. Rule 301(b)(5) Regulation ATS 29 requires an ATS that believes that exceeding a volume of Regulation ATS imposes a ‘‘fair exceeds certain volume thresholds in threshold for a combined class of all access’’ requirement, whereby an ATS any class of securities to comply with corporate debt securities would be a that exceeds certain volume thresholds standards regarding the capacity, sufficient indication that an ATS should in any class of securities must establish integrity, and security of its automated be required to register as an exchange, written standards for granting access to systems. Five classes of securities are and that it is not necessary or trading on its system and not currently identified in Rule 301(b)(6): appropriate to assess trading volumes in unreasonably prohibit or limit any (1) NMS stocks; (2) equity securities that the narrower segments of investment person in respect to access to the are not NMS stocks and for which grade and non-investment grade services it offers.25 The fair access transactions are reported to a self- corporate debt securities. While the standard applies if an ATS has 5% or regulatory organization; (3) municipal proposed amendment could reduce the more of the average daily volume during securities; (4) investment grade likelihood that an ATS could be at least four of the preceding six corporate debt securities; and (5) non- required to register as an exchange,24 we calendar months in any of the following: investment grade corporate debt 26 30 preliminarily believe that this change (1) Any individual NMS stock; (2) any securities. Consistent with the other would nevertheless be appropriate. At individual equity security that is not an proposed changes to Regulation ATS, this time, there does not appear to be a NMS stock and for which transactions the Commission also proposes to continuing need to analyze are reported to a self-regulatory eliminate separate classes for ‘‘dominance’’ in separate classes of organization; (3) municipal securities; investment grade and non-investment investment grade and non-investment (4) investment grade corporate debt grade debt securities in Rule 301(b)(6) securities; and (5) non-investment grade and replace them with a single category grade corporate debt securities, 27 particularly in view of the fact that the corporate debt securities. The terms for ‘‘corporate debt securities,’’ which Commission would continue to analyze investment grade and non-investment would be defined in Rule 300. Existing for dominance in six other classes of grade debt security are defined in Rule paragraphs (i)(D) and (i)(E) of Rule securities (in addition to the new single 300 of Regulation ATS. 301(b)(6) would be replaced with a new We propose to amend Rules 300 and class for corporate debt securities). The paragraph (i)(D) providing that an ATS 301(b)(5) to establish a single class of must comply with the capacity, Commission notes that, in over nine corporate debt securities and to integrity, and security requirements of years since the adoption of Rule 3a1–1, eliminate the existing separate classes of Rule 301(b)(6) if, with respect to the Commission has never determined investment grade and non-investment corporate debt securities, such system to require an ATS to register as an grade corporate debt securities. accounts for 20% or more of the average exchange because it had become Accordingly, paragraphs (i) and (j) of daily volume traded in the United States ‘‘dominant.’’ Moreover, the Commission Rule 300 would be replaced with a new for the requisite number of months. The would continue to be able to exercise paragraph (i) defining ‘‘corporate debt 20% threshold and the other three discretion about whether to revoke the security’’ to mean any security that: (1) classes of securities would remain exemption for any ATS that exceeded Evidences a liability of the issuer of unchanged. either threshold in Rule 3a1–1. The such security; (2) has a fixed maturity For the same reasons we are Commission seeks comment on date that is at least one year following proposing to amend Rule 3a1–1, we whether, in light of the proposed the date of issuance; and (3) is not an preliminarily believe that these exempted security, as defined in Section proposed amendments to Regulation 23 The other six classes of securities—equity securities, listed options, unlisted options, 3(a)(12) of the Exchange Act. Existing ATS would be appropriate, and that a municipal securities, foreign corporate debt paragraphs (i)(D) and (i)(E) of Rule volume threshold for a combined class securities, and foreign sovereign debt securities— 301(b)(5) would be replaced with a new of all corporate debt securities would be would remain unchanged. Therefore, as under paragraph (i)(D) providing that an ATS sufficient for the fair access requirement existing Rule 3a1–1, the Commission also could determine that an ATS must register as an exchange and the capacity, integrity, and security if the system exceeded either volume threshold in 25 See 17 CFR 242.301(b)(5). requirements. The Commission any of these other classes of securities. 26 See 17 CFR 240.600(a)(47) (defining ‘‘NMS preliminarily believes that the purposes 24 For example, under existing Rule 3a1–1, an stock’’). of Regulation ATS would still be ATS that has 40% of the average daily dollar 27 In proposing Regulation ATS, the Commission trading volume in non-investment grade corporate requested comment ‘‘on whether categories of debt debt securities and 0% of the average daily dollar securities should be further divided based on an 28 When the Commission originally adopted trading volume in investment grade corporate debt instrument’s maturity, credit rating, or other Regulation ATS, it set the fair access threshold at securities for three consecutive months could be criteria.’’ Securities Exchange Act Release No. 20%. It later lowered the threshold to 5% in required by the Commission to register as an 39884 (April 21, 1998), 63 FR 23504, 23519 (April connection with the adoption of Regulation NMS. exchange. Under the proposed amendment, the 29, 1998). However, in adopting Regulation ATS, See Securities Exchange Act Release No. 51808 Commission could not do so because the ATS’s the Commission did not employ these narrower (June 9, 2005), 70 FR 37496, 37550 (June 29, 2005). combined average daily dollar trading volume in classes of debt securities. See Regulation ATS 29 17 CFR 242.301(b)(6). corporate debt securities would be less than 40%. Adopting Release, 63 FR at 70873. 30 17 CFR 242.301(b)(6)(i).

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fulfilled if investment grade and non- not proposing any other changes to • Would the proposed amendments investment grade corporate debt Form ATS–R. affecting the fair access standards have securities were combined into a single We are also proposing to revise Form other consequences, whether on class. ATSs would continue to be PILOT consistent with the proposed investors, market participants, the subject to the fair access requirements changes to Form ATS–R. Ordinarily, national market system, or the public and the capacity, integrity, and security Section 19 of the Exchange Act 32 and interest? Have investors experienced 33 requirements with respect to the other Rule 19–4 thereunder require a self- difficulty obtaining access to ATSs existing classes of securities and at the regulatory organization (‘‘SRO’’) to file trading corporate debt securities? Would same volume thresholds (5% and 20%, with the Commission proposed rule the proposed amendments impair or respectively). The Commission seeks changes on Form 19b–4 regarding any limit current investor access to ATSs? changes to any material aspect of its • comment on whether, in light of the Would the proposed changes to operations, including any trading proposed combination of investment Regulation ATS as they relate to the system. Rule 19b–5 under the Exchange grade and non-investment grade capacity, integrity, and security Act 34 sets forth a limited exception to requirements have any adverse impact corporate debt securities into a single that requirement by permitting an SRO class, it should adopt lower thresholds on investors, market participants, or the to operate a pilot trading system without national market system as a whole? for fair access and the capacity, security, filing proposed rule changes with • and integrity requirements under In view of the proposed respect to that system if certain criteria combination of investment grade and Regulation ATS. If so, what should are met. One of those criteria is that the non-investment grade corporate debt those thresholds be and why? SRO file a Form PILOT in accordance securities into a single class for We are also proposing revisions to with the instructions on that form. Like purposes of Rule 3a1–1 and Regulation Form ATS–R, which is used by ATSs to Form ATS–R, Form PILOT currently ATS, should the Commission also lower report certain information about their requires quarterly reporting of trading the thresholds in those rules for the activities on a quarterly basis.31 activity by classes of securities, combined class of corporate debt Currently, Form ATS–R requires each including investment grade and non- securities? If so, what should those ATS to report the total unit volume and investment grade corporate debt thresholds be? Why are those suggested total dollar volume in the previous securities. For the same reasons we thresholds appropriate? quarter for various categories of propose to amend Rule 3a1–1 and • Should the Commission retain securities, including investment grade Regulation ATS, we also propose to investment grade and non-investment and non-investment grade corporate revise Form PILOT to eliminate these grade corporate debt securities as debt securities. Consistent with the two categories, replacing them with a separate classes of securities under Rule proposed amendments to Regulation single category of ‘‘corporate debt 3a1–1 and Regulation ATS and instead ATS described above, we also propose securities.’’ Corporate debt securities use different definitions of those terms to revise Form ATS–R to eliminate the would be defined identically in Form that do not rely on NRSRO ratings? If so, separate categories for investment grade PILOT and Form ATS–R. The how should investment grade and non- Commission preliminarily believes that and non-investment grade corporate investment grade be defined? it is appropriate to obtain trading debt securities, and instead create a • Would the proposed amendments volumes from pilot trading systems for single category for ‘‘corporate debt to Form ATS–R or Form PILOT have the combined class of corporate debt securities.’’ As with the proposed any significant impact on investors, securities, and that separate reporting of changes to Regulation ATS, ‘‘corporate market participants, the national market the two classes is not necessary to system, or the public interest? debt securities’’ would be defined in the adequately monitor the development of instructions to Form ATS–R to mean pilot trading systems. The Commission B. Proposed Amendments to Rule any security that: (1) Evidences a notes that, in over nine years since Rule 10b–10 liability of the issuer of such security; 19b–5 and Form PILOT were adopted, 35 (2) has a fixed maturity date that is at We propose to amend Rule 10b–10, no SRO has ever established a pilot the transaction confirmation rule for least one year following the date of trading system pursuant to Rule 19b–5 issuance; and (3) is not an exempted broker-dealers, to delete paragraph (a)(8) to trade corporate debt securities. 36 security, as defined in Section 3(a)(12) of that rule. Rule 10b–10 generally We generally request comment on all requires broker-dealers that effect of the Exchange Act. Because separate aspects of the proposed elimination of classes for investment grade and non- transactions for customers in securities, the reference to NRSRO ratings in Rule other than U.S. savings bonds or investment grade corporate debt 3a1–1, Regulation ATS, Form ATS–R, municipal securities, which are covered securities are proposed to be eliminated and Form PILOT. In addition, we by Municipal Securities Rulemaking for purposes of the thresholds in Rule request comment on the following Board rule G–15 (which applies to all 3a1–1 and Rules 301(b)(5) and 301(b)(6) specific questions: municipal securities brokers and of Regulation NMS, no purpose would • Would the proposed amendments dealers), to provide customers with to Rule 3a1–1 have any significant be served by requiring ATSs to written notification, at or before the impact on investors, market separately report their trading volumes completion of each transaction, of participants, the national market for investment grade and non- certain basic transaction terms. This system, or the public interest? investment grade debt securities on transaction confirmation must disclose, Form ATS–R. The figures for the • Would the proposed amendments to Regulation ATS have any significant among other information: the date of the separate classes would be added transaction; the identity, price, and together and reported as a single item on impact on investors, market the amended form. The Commission is participants, the national market system, or the public interest? 35 17 CFR 240.10b–10. 36 Consistent with that change, we also are 31 Each ATS must file a Form ATS–R within 30 proposing to redesignate paragraph (a)(9) of the days of the end of each calendar quarter, and within 32 15 U.S.C. 78s. rule, related to broker-dealers that are not members ten days of a cessation of operations. See 17 CFR 33 17 CFR 240.19b–4. of the Securities Investor Protection Corporation 242.301(b)(9). 34 17 CFR 240.19b–5. (‘‘SIPC’’), as paragraph (a)(8).

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number of shares bought or sold; 37 the continuing to include this information We are proposing to remove, with capacity of the broker-dealer; 38 the in transaction confirmations. limited exceptions, all references to dollar price or yield at which a We generally request comment on all NRSROs from the Net Capital Rule.45 transaction in a debt security was aspects of the proposed elimination of The broker-dealers subject to the Net effected; 39 and, under specified the NRSRO reference in Rule 10b–10. In Capital Rule are sophisticated market circumstances, the amount of addition, we request comment on the participants regulated by at least one compensation paid to the broker-dealer following specific questions: SRO.46 As regulated entities, broker- and whether the broker-dealer receives • Have investors found confirmation dealers must meet certain financial payment for order flow.40 disclosure about the fact that a debt responsibility requirements, including The rule’s requirements, portions of security is not rated by an NRSRO to be maintaining minimum amounts of which have been in effect for over 60 useful? liquid assets as net capital, safeguarding years, provide basic investor protections • Are there any possible alternatives customer funds and securities, and by conveying information that allows to deletion that would address concerns making and preserving accurate books investors to verify the terms of their about undue reliance on NRSRO ratings and records. Accordingly, we transactions, alerts investors to potential or avoid confusion about the preliminarily believe that broker-dealers conflicts of interest with their broker- significance of those ratings? For would be able to assess the dealers, acts as a safeguard against example, should the confirmation creditworthiness of the securities they fraud, and provides investors a means to disclose that the security is rated or not hold without undue hardship and, evaluate the costs of their transactions rated by an NRSRO, as the case may be, therefore, that exclusive reliance on and the execution quality.41 instead of just that the security is not NRSRO ratings for the purposes of the Paragraph (a)(8) of Rule 10b–10 rated? Net Capital Rule is no longer necessary, requires transaction confirmations for although broker-dealers that wish to C. Proposed Amendments to Rule debt securities, other than government continue to rely on such ratings may do 15c3–1 securities, to inform the customer if the so. We are proposing the substitution of security is unrated by an NRSRO. When Under the Net Capital Rule, broker- two new subjective standards for the we adopted paragraph (a)(8) in 1994, it dealers are required to maintain, at all NRSRO ratings currently relied upon was intended to prompt a dialogue times, a minimum amount of net under the Net Capital Rule. For the between the customer and the broker- capital. The rule generally defines ‘‘net purposes of determining the haircut on capital’’ as a broker-dealer’s net worth dealer if the customer had not commercial paper,47 we propose to (assets minus liabilities), plus certain previously been informed of the unrated replace the current NRSRO ratings- subordinated liabilities, less certain status of the debt security. We stated based criterion—being rated in one of assets that are not readily convertible that this disclosure was not intended to the three highest rating categories by at into cash (e.g., fixed assets), and less a suggest that an unrated security is least two NRSROs—with a requirement percentage (haircut) of certain other inherently riskier than a rated that the instrument be subject to a 42 43 security. Upon further consideration liquid assets (e.g., securities). Broker- minimal amount of credit risk and have and in light of present concerns dealers are required to calculate net sufficient liquidity such that it can be regarding undue reliance on NRSRO worth using generally accepted sold at or near its carrying value almost ratings and confusion about the accounting principles. immediately. For the purposes of significance of those ratings, we believe In computing their net capital under determining haircuts on nonconvertible it would be appropriate to delete this the provisions of the Net Capital Rule, debt securities as well as on preferred requirement. However, in proposing to broker-dealers are required to deduct stock,48 we propose to replace the no longer require broker-dealers to from their net worth certain percentages current NRSRO ratings-based criterion— include in transaction confirmations the of the market value of their proprietary being rated in one of the four highest information that a debt security is securities positions. A primary purpose rating categories by at least two unrated, we do not mean to suggest that of these ‘‘haircuts’’ is to provide a NRSROs—with a requirement that the information about an issuer’s margin of safety against losses that instrument be subject to no greater than creditworthiness is not a relevant might be incurred by broker-dealers as moderate credit risk and have sufficient subject for discussion and consideration a result of market fluctuations in the liquidity such that it can be sold at or prior to purchasing a debt security. We prices of, or lack of liquidity in, their would encourage investors to seek to proprietary positions. We apply a lower 45 In 2003, the Commission published a concept understand all of the risks of securities, haircut to certain types of securities release in which we sought comment on the use of including credit-related risks, before held by a broker-dealer that were rated NRSRO ratings in our rules, and specifically sought comment on eliminating the minimum quality buying. In addition, we note that investment grade by a credit rating standards established with the use of NRSRO deleting this requirement would not agency of national repute since those ratings in Exchange Act Rule 15c3–1. See Rating prevent broker-dealers from voluntarily securities typically were more liquid Agencies and the Use of Credit Ratings Under the and less volatile in price than securities Federal Securities Laws, Securities Exchange Act 44 Release No. 47972 (June 4, 2003), 68 FR 35258 (June 37 See 17 CFR 240.10b–10(a)(1) (the confirmation that were not so highly rated. 12, 2003). (Comments on the concept release are must also include either the time of the transaction available at: http://www.sec.gov/rules/concept/ or the fact that it will be furnished upon written 43 See 17 CFR 240.15c3–1(c)(2). s71203.shtml.) As discussed above, recent events request). 44 See 17 CFR 240.15c3–1(c)(2)(vi)(E) (haircuts have highlighted the need to revisit our reliance on 38 See 17 CFR 240.10b–10(a)(2). applicable to commercial paper), 17 CFR 240.15c3– NRSRO ratings in the context of these 39 See 17 CFR 240.10b–10(a)(5) and (6). 1(c)(2)(vi)(F) (haircuts applicable to nonconvertible developments. See also the extensive discussion of 40 See, e.g., 17 CFR 240.10b–10(a)(2)(i)(B), (C) and debt securities), and 17 CFR 240.15c3–1(c)(2)(vi)(H) market developments in the Release No. 57967. (D). (haircuts applicable to cumulative nonconvertible 46 The SROs regulating broker-dealers include the 41 See Securities Exchange Act Release No. 34962 preferred stock). The term NRSRO is also used in Financial Industry Regulatory Authority, the (November 10, 1994), 59 FR 59612, 59613 appendices to the Net Capital Rule. See 17 CFR Municipal Securities Rulemaking Board, and the (November 17, 1994). 240.15c3–1a(b)(1)(i)(C) (defining the term ‘‘major national securities exchanges. 42 See Securities Exchange Act Release No. 34962 market foreign currency’’) and 17 CFR 240.15c3– 47 See 17 CFR 240.15c3–1(c)(2)(vi)(E). (November 10, 1994), 59 FR 59612 (November 17, 1f(d) (determining the capital charge for credit risk 48 See 17 CFR 240.15c3–1(c)(2)(vi)(F)(1) and 1994) (File No. S7–6–94). arising from certain OTC derivatives transactions). (c)(2)(vi)(H).

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near its carrying value within a sophistication and the resources to to use the alternative approach or in an reasonably short period of time. This make these determinations, we believe amendment, to request Commission latter formulation would apply as well it would be appropriate, as one means approval to determine credit risk to long or short positions that are of complying with the proposed weights based on internal calculations. hedged with short or long positions in amendments, for broker-dealers to refer Based on the strength of the broker- securities issued by the United States or to NRSRO ratings for the purposes of dealer/CSE or OTC derivatives dealer’s any agency thereof or nonconvertible determining haircuts under the Net internal credit risk management system, debt securities having a fixed interest Capital Rule. As such, if we adopt the we may approve the application. A rate and a fixed maturity date and proposed amendments, after broker-dealer or OTC derivatives dealer which are not traded flat or in default considering comments, we expect to that obtained such approval would be as to principal or interest.49 take the view in the adopting release required to make and keep current a We preliminarily believe that these that securities rated in one of the three record of the basis for the credit risk new standards would continue to highest categories by at least two weight of each counterparty. To date, a advance the purpose the NRSRO NRSROs would satisfy the requirements total of seven entities have applied for ratings-based standards were designed of proposed new paragraph (c)(2)(vi)(E) and been granted permission to use the to advance, which is to enable broker- and securities rated in one of the four methods set forth in Appendix E, while dealers to make net capital highest rating categories by at least two five have applied for and been granted computations that reflect the market risk NRSROs to satisfy the requirements of permission to use the methods set forth inherent in the positioning of those proposed new paragraphs (c)(2)(vi)(F) in Appendix F. We do not currently particular types of securities. The prior and (c)(2)(vi)(H). We emphasize, anticipate that any additional firms will standards—being rated in one of the however, that references to such NRSRO apply for permission to use either three or four highest rating categories by ratings would be just one means of Appendix E or Appendix F. All of the at least two NRSROs—were designed satisfying the requirements of the approved firms have already developed based on the practice of many credit proposed amendments but would not models to calculate market and credit rating agencies to have at least eight the only means of doing so. risk under the alternative net capital categories for their debt securities with We are also proposing to remove calculation methods set forth in the the top four commonly referred to as references to NRSRO ratings from appendices as well as internal risk ‘‘investment grade.’’ 50 While the Appendices E and F to Rule 15c3–1 and management control systems.53 As such, proposed standards, like the prior make conforming changes to Appendix each firm already employs the non- standards, do not use the term G of Rule 15c3–1 and the General NRSRO ratings-based method that ‘‘investment grade,’’ they are meant to Instructions to Form X–17 A–5, Part would, under the proposed serve the same purpose as the prior IIB.51 Appendix E of the Net Capital amendments, become the only option standards. As such, the category of Rule sets forth a program that allows a for determining counterparty credit risk securities that have ‘‘no greater than broker-dealer to use an alternative under Appendices E and F. We are also moderate credit risk’’ and can be sold at approach to computing net capital proposing conforming amendments to or near their carrying value within a deductions, subject to certain Appendix G of Rule 15c3–1 and the reasonably short period of time should conditions, most importantly the broker- General Instructions to Form X–17 A–5, encompass all investment grade dealer’s ultimate holding company Part IIB. The proposed amendments securities. The proposed new criteria for consenting to group-wide Commission would delete references to the commercial paper to be used for net supervision as a consolidated provisions of Appendices E and F, capital purposes are securities that are supervised entity (‘‘CSE’’).52 Appendix respectively, that are proposed to be ‘‘subject to a minimal amount of credit F to the Net Capital Rule sets forth a deleted. risk’’ and can be sold at or near their similar program for OTC derivatives We generally request comment on all carrying value almost immediately. In dealers. In each case, the program sets aspects of the proposed elimination of each case, the proposed liquidity forth an alternative means of the use of NRSRO ratings in the Net standard would reflect the fact that only establishing net capital requirements Capital Rule. In addition, we request liquid assets are relevant for the under the Net Capital Rule by which the comment on the following specific purposes of the Net Capital Rule. broker-dealer or OTC derivatives dealer, questions: • We further believe that broker-dealers as applicable, may elect to determine Would internal evaluations of have the financial sophistication and counterparty risk. This may be done individual debt securities by broker- the resources necessary to make the either based on NRSRO ratings by dealers for purposes of determining the basic determinations of whether or not requesting Commission approval to capital charges (‘‘internal processes’’) a security meets the requirements in the determine credit risk weights based on instead of reliance on NRSRO ratings proposed amendments and to internal calculations. accomplish the stated goals of the distinguish between securities subject to We are proposing to delete the Commission’s net capital requirements? • minimal credit risk and those subject to provisions of Appendices E and F What are the benefits, other than moderate credit risk. The broker-dealer permitting reliance on NRSRO ratings those we have identified, of the use of would have to be able to explain how internal processes? for the purposes of determining • the securities it used for net capital counterparty risk. As a result of these Besides the use of internal purposes meet the standards set forth in deletions, a broker-dealer that is part of processes by broker-dealers, are there the proposed amendments. a CSE or a OTC derivatives dealer that potential alternate means of establishing Notwithstanding our belief that wished to use the approach set forth creditworthiness for the purposes of the broker-dealers have the financial Appendix E or F, respectively, to Net Capital Rule without reference to NRSRO ratings? Commenters who determine counterparty risks would be 49 See 17 CFR 240.15c3–1(c)(2)(vi)(F)(2). required, as part of its initial application 50 See Oversight of Credit Rating Agencies 53 See, e.g., Alternative Net Capital Requirements Registered as Nationally Recognized Statistical for Broker-Dealers That Are Part of Consolidated Rating Organizations, Securities Exchange Act 51 17 CFR 240.15c3–1e, 240.15c3–1f, and Supervised Entities, Securities Exchange Act Release No. 55857 (June 5, 2007), 72 FR 33564 (June 240.15c3–1g; see 17 CFR 249.617. Release No. 49830 (June 8, 2004), 69 FR 33428 at 18, 2007). 52 See 17 CFR 240.15c3–1e. 33456 (June 21, 2004).

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believe that this is the case should categories by at least two NRSROs to organization to which customers’ include detailed descriptions of such satisfy the requirements of proposed positions in security futures products alternate means. new paragraphs (c)(2)(vi)(F) and are posted and its general • Are we correct in our preliminary (c)(2)(vi)(H)? Commenters should creditworthiness.56 Although the rule belief that broker-dealers have the include detailed descriptions of any was originally designed to provide an financial sophistication and the subset of broker-dealers they believe indication of long-term financial resources necessary to generate internal should be able to continue to rely on strength and general creditworthiness processes and make the basic NRSRO ratings and the rationale from an independent source,57 we determinations of whether or not a therefor. preliminarily believe that broker- security is meets the requirements in the • What factors should we take into dealers, as sophisticated market proposed amendments and to account when considering the potential participants and regulated entities that distinguish between securities subject to regulatory compliance costs of removing are subject to financial responsibility minimal credit risk and those subject to references to NRSROs from the Net requirements, have the financial moderate credit risk? If not, how should Capital Rule? Commenters should sophistication and the resources the proposed rule be modified to include detailed descriptions of any necessary to make this determination. address those concerns? potential costs. The broker-dealer would have to be able • What would be the potential D. Proposed Amendment to Rule to explain how the registered clearing or consequences of using internal 15c3–3 derivatives organization to which processes for purposes of the net capital customers’ positions in security futures rule and how could these be addressed? Note G to Exhibit A of Rule 15c3–3 products are posted meets the standard For example, one concern is that a under the Exchange Act (the ‘‘Customer in the proposed amendment. Protection Rule’’), which provides the broker-dealer would have an incentive We also believe, however, that it formula for the determination of broker- to downplay the credit risk associated would be appropriate, as one means of dealers’ reserve requirements, allows a with a particular security in order to complying with the proposed broker-dealer to include as a debit in the minimize capital charges. How could amendment, for broker-dealers to refer formula the amount of customer margin this concern be addressed? to NRSRO ratings for the purposes of • related to customers’ positions in If we provided for the use of paragraph (b) of Note G. As such, if we security futures products posted to a internal processes, should we require adopt the proposed amendments after registered clearing or derivatives that the persons responsible for considering comments, we expect to organization that maintains the highest developing a broker-dealer’s internal take the view in the adopting release investment grade rating from an processes and applying them to that we would continue to consider a NRSRO.54 This standard, which is one individual securities for the purposes of registered clearing agency or derivatives the Net Capital Rule be separate from of four different means by which a registered clearing or derivatives clearing organization that maintains the employees who perform other functions highest investment-grade rating from an for the broker-dealer, such as making organization can be judged to meet the requirements of paragraph (b)(1) of Note NRSRO to satisfy the requirements of proprietary investment decisions for the that provision. We emphasize, however, broker-dealer? G,55 is consistent with the customer • protection function of Rule 15c3–3 and that the references to such NRSRO What would be the appropriate ratings would be just one means of level of regulatory oversight for broker- is necessary because of the unsecured nature of the customer positions in satisfying the requirements of the dealers employing internal processes? proposed amendments and would not • Should we require any policies and security futures products margin debit. be the only means of doing so. procedures with regard to the basic We propose to replace this standard We request comment on the following determinations as to whether a security with a requirement that the registered specific questions in connection with meets the standards in the proposed clearing or derivatives organization to Exhibit A to the Customer Protection amendments? which customers’ positions in security • futures products are posted has the Rule: Should we explicitly define the • terms used in the proposed new highest capacity to meet its financial As an alternative to relying on an standards in Rules 15c3–1(c)(2)(vi)(E), obligations and is subject to no greater NRSRO rating to distinguish the (F), and (H)? than minimal credit risk. creditworthiness of a registered clearing • If we adopt the proposed standards, We preliminarily believe that these agency or derivatives clearing would broker-dealers find it useful to new standards would continue to organization, should we prescribe a employ market-based models, including advance the purpose the NRSRO-ratings minimum net worth or asset test for the models using credit spreads to satisfy standard was designed to advance, organizations? Alternatively, should we the requirements of the proposed namely to ensure both of the long-term prescribe a test based on a minimum standards? Should we provide guidance financial strength of a clearing level of members of the organization or about the use of these models? minimum level of clearing deposits held • What is the likelihood that small 54 17 CFR 240.15c3–3a(b)(1)(i). by the organization? Commenters that broker-dealers would purchase credit 55 A broker-dealer may also include customer support any of these proposals should margin related to customers’ positions in security provide details (e.g., the minimum ratings or the models used to develop futures products posted to a registered clearing or those ratings from large broker-dealers? derivatives organization (1) that maintains security levels in dollar amounts) as to how they • If we adopt the proposed deposits from clearing members in connection with should be implemented. amendments after considering regulated options or futures transactions and • Would it be more appropriate to assessment power over member firms that equal a delete current paragraph (b)(1)(i) of Note comments, should we take the view in combined total of at least $2 billion, at least $500 the adopting release that securities rated million of which must be in the form of security G to Exhibit A to the Customer in one of the three highest categories by deposits; (2) that maintains at least $3 billion in at least two NRSROs satisfy the margin deposits; or (3) which does not meet the 56 See Rule 15c3–3 Reserve Requirements for other requirements but which the Commission has Margin Related to Security Futures Products, requirements of proposed new agreed, upon a written request from the broker- Securities Exchange Act Release No. 50295 (August paragraph (c)(2)(vi)(E) and securities dealer, that the broker-dealer may utilize. 17 CFR 31, 2004), 69 FR 54182, 54185 (September 7, 2004). rated in one of the four highest rating 240.15c3–3a(b)(1)(ii)–(iv). 57 Id.

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Protection Rule in its entirety? Put E. Proposed Amendments to Rules 101 eliminate the reference to NRSROs. We differently, do the guidelines offered by and 102 of Regulation M propose to remove Rules 101 and 102’s current exceptions for investment grade current paragraphs (b)(1)(ii)–(iv) of Note 1. Regulation M G in and of themselves provide nonconvertible debt securities, sufficient means by which a registered As a prophylactic, anti-manipulation nonconvertible preferred securities, and clearing or derivatives organization set of rules, Regulation M is designed to asset-backed securities based on NRSRO could be judged to meet the protect the integrity of the securities ratings. In place of those exceptions, we trading market as an independent requirements of paragraph (b)(1) of Note propose new exceptions for pricing mechanism by prohibiting G? nonconvertible debt securities and activities that could artificially • nonconvertible preferred securities If we adopted the proposed influence the market for the offered based on the ‘‘well-known seasoned amendment to Note G to Exhibit A of security. Rules 101 and 102 of issuer’’ (‘‘WKSI’’) concept of Securities Rule 15c3–3, should we explicitly Regulation M specifically prohibit Act of 1933 (‘‘Securities Act’’) Rule define the terms used in the proposed issuers, selling security holders, 405.63 We are also proposing to except new standard? underwriters, brokers, dealers, other asset-backed securities from Rules 101 • Is it appropriate to allow broker- distribution participants, and any of and 102 if those securities are registered dealers to make the determination of their affiliated purchasers, from directly on Form S–3.64 whether a clearing organization or indirectly bidding for, purchasing, or The proposed exceptions continue to possesses the highest capacity to meet attempting to induce another person to be based on the premise that these its financial obligations and is subject to bid for or purchase, a covered security securities are traded on factors such as until the applicable restricted period no greater than minimal credit risk? If their yields and are largely fungible. In has ended.58 not, what are suggested ways that the addition we believe that the proposed rule could be amended to 2. Current Rule 101(c)(2) and Rule marketplace is more likely to have address that concern? 102(d)(2) Exceptions access to a significant amount of useful • and high-quality public information Should we require any policies and Both rules currently except concerning these securities that may procedures with regard to the ‘‘investment grade nonconvertible and assist investors in assessing the asset-backed securities.’’ 59 These determination whether a registered creditworthiness of the issuer on their exceptions apply to nonconvertible debt clearing or derivatives organization own without needing to unduly rely on securities, nonconvertible preferred meets the standard in the proposed a NRSRO.65 We understand that WKSI securities, and asset-backed securities amendment? and Form S–3 issuers are some of the that are rated by at least one NRSRO in • largest and highest quality issuers of What would be the potential one of its generic rating categories that nonconvertible debt, nonconvertible consequences of allowing broker-dealers signifies investment grade.60 The preferred securities and asset-backed to determine whether a clearing current exceptions for certain securities which makes default organization possessed the highest investment grade debt and preferred generally less likely. But the availability capacity to meet its financial obligations securities rated by a NRSRO were and was subject to no greater than originally based on the premise that of this information or quality of minimal credit risk and how could these these securities are traded on the basis underlying assets is not enough to be addressed? For example, one concern of their yields and credit ratings, are justify the exceptions in and of itself, is that a broker-dealer would have an largely fungible and, thus, are less likely the security must also trade in such a incentive to downplay the credit risk to be subject to manipulation.61 With way that it is resistant to manipulation. associated with a particular clearing respect to asset-backed securities, the This is why we are proposing to organization in order to be able to post current exceptions were premised on continue to limit these exceptions to customers’ positions in security futures the fact that asset-backed securities also nonconvertible debt, nonconvertible products to it. How could this concern trade primarily on the basis of yield and preferred, and asset-backed securities as be addressed? credit rating and that asset-backed those securities trade largely on the • securities investors are concerned with basis of their yield and are largely If we adopt the proposed fungible. amendments after considering ‘‘the structure of the class of securities comments, should we take the view in and the nature of the assets pooled to a. Proposed Rules 101(c)(2)(i) and serve as collateral for those 102(d)(2)(i)—Nonconvertible Debt and the adopting release that we would 62 consider a registered clearing agency or securities.’’ Preferred Securities derivatives clearing organization that 3. Proposed Amendments’ Elimination The proposed exceptions for maintains the highest investment-grade of the NRSRO Reference nonconvertible debt and nonconvertible rating from an NRSRO to satisfy the In light of our effort to reduce undue preferred securities would require that requirements of that provision? reliance on NRSRO ratings, we believe the issuer of such securities meet the Commenters should include detailed that it is appropriate to alter the current requirements of the WKSI definition descriptions of any subset of broker- exceptions in Rules 101 and 102 to and meet the requirements for dealers they believe should be able to nonconvertible securities other than continue to rely on NRSRO ratings and 58 ‘‘Covered security’’ is defined as ‘‘any security common equity in paragraph (1)(i)(B)(1) the rationale therefore. that is the subject of a distribution or any reference security.’’ 17 CFR 242.100. 63 17 CFR 230.405. • What factors should we take into 59 17 CFR 242.101(c)(2) and 242.102(d)(2). 64 Asset-backed securities are defined out of the account when considering the potential 60 Id. WKSI standard at subparagraph (1)(iv) of the regulatory compliance costs of removing 61 Securities Exchange Act Release No. 19565 definition and, further, could not meet the references to NRSROs from paragraph (March 4, 1983); 48 FR 10628 (March 14, 1983). See requirements of (1)(i)(A) or (B) of the definition (b)(1) of Note G to Rule 15c–3a? also Securities Exchange Act Release No. 18528 because they are generally one-time issuers. Id. (March 3, 1982); 47 FR 11482 (March 16, 1982). 65 See Securities Exchange Act Release No. 52056 Commenters should include detailed 62 Securities Exchange Act Release No. 38067 (July 19, 2005); 70 FR 44722 (August 3, 2005). See descriptions of any potential costs. (December 20, 1996); 62 FR 520 (January 3, 1997). also Note 61, infra.

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of the definition of WKSI in Rule 405. We believe that the proposed • Are the WKSI requirements As proposed, the exceptions would be amendments should provide exceptions appropriate for use in a trading (as available for nonconvertible debt or to only those asset-backed securities opposed to disclosure) context? What nonconvertible preferred securities that are approximately the equivalent effect(s) of the proposed exceptions, if issued by a WKSI issuer, regardless of quality of securities that are currently any, would you anticipate in the the method the issuer used to attain excepted from Rules 101 and 102. investment grade debt market and the WKSI status. However, in order to rely Additionally, the proposal is also based high-yield debt market? on the proposed exceptions, the security on the premise that asset-backed • Should the Rule 101(c)(2) and must be issued by an issuer who also securities trade primarily on the basis of 102(d)(2) exceptions be based on criteria meets the requirements of paragraph yield and that asset-backed securities other than the WKSI requirements for (1)(i)(B)(1) of the definition of WKSI in investors are primarily concerned with nonconvertible debt and nonconvertible Rule 405.66 This would require that the the structure of the class of securities preferred securities and Form S–3 issuer have issued at least $1 billion and the nature of the assets pooled to registration for asset-backed securities? aggregate principal amount of serve as collateral for those securities • Would the WKSI nonconvertible nonconvertible securities, other than and, thus, such securities are less likely debt and nonconvertible preferred common equity, in primary offerings for to be subject to manipulation.70 securities excepted in the proposal be as cash, not exchange, registered under the resistant to manipulation as those same Securities Act.67 This would limit the 4. Bright-Line Alternative/Existing securities that meet the existing exceptions to securities whose issuers Benchmarks investment grade standard? have an existing public market in We believe that the proposed • Please provide comment as to nonconvertible securities other than amendments are appropriate whether the proposal would capture the common equity that is publicly known replacements for the NRSRO investment same type and quantity of securities that and followed and, thus, are less likely grade standard for the following fall within the current Rule 101(c)(2) to be subject to manipulation. reasons. We believe that the proposals and Rule 102(d)(2) exceptions. With respect to these proposed will capture securities that are more • Do the proposed WKSI and Form exceptions for nonconvertible debt and likely to be resistant to manipulation S–3 benchmarks adequately identify non-convertible preferred securities similar to the current exceptions nonconvertible debt, nonconvertible utilizing a WKSI requirement, we have because they are based on the same preferred securities, and asset-backed noted that WKSI issuers: premises as the current exceptions (such securities that are of high quality with [A]re followed by sophisticated as high liquidity and fungibility).71 low default risk? Please distinguish the institutional and retail investors, members of Second, the proposals provide a bright characteristics of nonconvertible debt, the financial press, and numerous sell-side line demarcation and objective criteria nonconvertible preferred securities, and and buy-side analysts that actively seek new for the exceptions. As both the WKSI asset-backed securities that meet these information on a continual basis. Unlike and Form S–3 standards as utilized by proposed benchmarks and those that do smaller or less mature issuers, large seasoned this proposal are established not. public issuers tend to have a more regular • benchmarks, they should be familiar to Is the proposed WKSI criterion dialogue with investors and market easily applied by all persons subject to participants through the press and other those persons subject to Rules 101 and media. The communications of these well- 102 and easily applied by such persons Rules 101 and 102 with respect to known seasoned issuers are subject to seeking to rely on the proposed nonconvertible debt and nonconvertible scrutiny by investors, the financial press, exceptions. Thus, we believe that the preferred securities issued by issuers analysts, and others who evaluate disclosure proposals are comparable in scope to who are WKSI by virtue of $700 million when it is made.68 market value of common equity? the existing exceptions but use alternate • Thus, we believe that the benchmarks that provide an equally Would persons other than issuers nonconvertible debt and nonconvertible bright line that is not unduly reliant on who are subject to Rules 101 and 102 preferred securities that fall within the NRSRO ratings. have access to adequate information to proposed exceptions should be resistant determine if a particular security fits to manipulation because of their 5. Comments into the exceptions? • fungibility, trading based on yield, and We solicit comments on all aspects of Should asset-backed securities this wide industry following. this proposal. We ask that commenters registered on Form S–3 be excepted provide specific reasons and from Rules 101 and 102 of Regulation b. Proposed Rules 101(c)(2)(ii) and information to support alternative M? Have there been developments in 102(d)(2)(ii)—Asset-Backed Securities recommendations. Please provide the asset-backed securities market that The proposed changes to the asset- empirical data, when possible, and cite might indicate whether such securities backed securities exceptions would to economic studies, if any, to support should be eliminated from the proposed require that the offer and sale of the alternative approaches. exceptions or should continue to be security is registered using Form S–3.69 excepted from Rules 101 and 102? • the eligibility requirements for asset-backed How frequently is the current asset- 66 A nonconvertible debt or nonconvertible securities to use that form) to remove references to backed exception from Rules 101 and preferred security issued by an issuer who is a NRSROs. Securities Act Release No. 8940 (July 1, 102 relied upon? WKSI based on the common equity calculation in 2008) (File No. 27–18–08). • Is it appropriate to also except paragraph (1)(i)(A) of the definition of WKSI in Rule 70 These were the reasons that we originally asset-backed securities registered on 405 would still be able to rely on the proposed excepted such securities. Securities Exchange Act exception if the issuer can also meet the Form F–3? If yes, please explain. Release No. 38067 (December 20, 1996); 62 FR 520 • requirements of paragraph (1)(i)(B)(1) of the (January 3, 1997). We ask for specific comment as to definition of WKSI in Rule 405. 71 See Securities Exchange Act Release Number any relevant changes to the debt market 67 17 CFR 230.405, paragraph (1)(i)(B)(1) of the 19565 (March 4, 1983); 48 FR 10628 (March 14, since Regulation M was adopted in 1996 definition of WKSI. 1983); Securities Exchange Act Release Number and the way debt issues are brought to 68 Securities Exchange Act Release No. 52056 18528 (March 3, 1982); 47 FR 11482 (March 16, market and trade. (July 19, 2005); 70 FR 44722 (August 3, 2005). 1982); and Securities Exchange Act Release Number • 69 The Commission is also proposing to revise the 38067 (December 20, 1996); 62 FR 520 (January 3, Do nonconvertible debt securities General Instruction I.B.5 to Form S–3 (which sets 1997). continue to trade based on their yield

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and fungibility? Nonconvertible revision to these collections of included in net capital calculations and preferred securities? Asset-backed information.73 apply those criteria to such securities. In securities? Are there other factors that The proposed amendments to Form addition, the expectation that the influence the trading of such securities? ATS–R and Form PILOT would revise broker-dealer be able to explain that any the forms to provide that information securities used for net capital purposes IV. Request for Comment which is currently reported as separate meet the standards set forth in the We generally request comment on all items, i.e., investment grade debt proposed amendments would result in aspects of our proposal to end our corporate debt securities and non- the creation and maintenance of records regulatory reliance on NRSRO credit investment grade corporate debt of those assessments. ratings. In addition, we request securities, would be combined and We believe that all broker-dealers comment on the following specific reported as a single item, i.e., corporate already have policies and procedures in questions: debt securities. In all other respects, the place for evaluating the overall risk and • Should we eliminate the NRSRO information collected on these forms liquidity levels of the securities they use designation from all our rules or only would remain unchanged. Accordingly, for the purposes of the Net Capital Rule from select rules? Commenters who we do not believe the proposed and that they keep records of the believe that certain rules should retain amendment would result in a assessments of securities they make for references to NRSROs or NRSRO ratings substantive revision to those collections net capital purposes; however, the should identify each rule they believe of information if adopted. proposed requirements, which should retain the use of the NRSRO The proposed amendment to Rule specifically address credit risk, could concept and explain the rationale for 10b–10 would eliminate a requirement result in additional burdens. The doing so. for transaction confirmations for debt proposed amendments would apply to • Does the use of the NRSRO securities (other than government the approximately 550 broker-dealers designation in our rules cause investors securities) to inform customers if a that take haircuts on securities pursuant to overly rely on NRSRO credit ratings? security is unrated by an NRSRO. This to the Net Capital Rule. We estimate that Would its elimination mitigate this over proposed amendment would alter on average, broker dealers will spend reliance? neither the general requirement that ten hours developing a system of • Does the use of the NRSRO broker-dealers generate transaction standards for evaluating designation in our rules adversely confirmations and send those creditworthiness for the purposes of the impact competition among credit rating confirmations to customers, nor the Net Capital Rule, resulting in an agencies by favoring those agencies that potential use of information contained aggregate initial burden of 5,500 hours. are registered as NRSROs? Would its in confirmations by the Commission, This estimate is based on our belief that elimination mitigate this negative self-regulatory organizations, and other many of these broker-dealers already impact? securities regulatory authorities in the have their own criteria in place for V. Paperwork Reduction Act course of examinations, investigations evaluating creditworthiness, while and enforcement proceedings. others would continue to refer to Certain provisions of the proposed Moreover, the proposed amendment is NRSRO ratings as the basis of their amendments to the rules and forms not expected to change the cost of creditworthiness decisions. contain ‘‘collection of information generating and sending confirmations, We further estimate that, on average, requirements’’ within the meaning of and, we believe that broker-dealers may each broker-dealer will spend an the Paperwork Reduction Act of 1995.72 not need to incur significant costs if additional ten hours a year reviewing, The hours and costs associated with they choose not to input information adjusting, and applying its own preparing and filing the disclosure, that a debt security is unrated into their standards for evaluating filing the forms and schedules and existing confirmation systems. creditworthiness, for a total of 5,500 retaining records required by these Accordingly, we do not believe the annual hours across the industry. Once regulations constitute reporting and cost proposed amendment would result in a again, this estimate reflects our belief burdens imposed by each collection of material or substantive revision to these that many of these broker-dealers information. An agency may not collections of information if adopted. already have their own criteria in place, conduct or sponsor, and a person is not The proposed amendment to Rule while others would continue to refer to required to respond to, a collection of 15c3–1 would potentially modify NRSRO ratings. We also estimate that information unless it displays a broker-dealers’ existing practices to firms would employ compliance currently valid control number. The impose additional recordkeeping attorneys, in many cases relying on titles of the affected information forms burdens. The proposed amendment outside counsel, to review these are Rule 10b–10, ‘‘Confirmation of would replace NRSRO ratings-based standards, both initially and on an Transactions,’’ (OMB Control Number criteria for evaluating creditworthiness annual basis. We estimate the per-firm 3235–0444), Rule 15c3–1 (OMB Control with new subjective standards based on costs of outside counsel to be $2,700 Number 3235–0200), Rule 15c3–3 (OMB the broker-dealer’s own evaluation of initially and $1,350 on an annual basis, Control Number 3235–0078), Form creditworthiness, although broker- for an aggregate industry cost of ATS–R (OMB Control Number 3235– dealers would still be able to refer to $1,485,000 initially and $742,500 on an 0509), Form PILOT (OMB Control NRSRO ratings for those purposes. The annual basis.74 Number 3235–0507), and Form X–17A– broker-dealer would have to be able to 5, Financial and Operational Combined explain how the securities it used for 74 For the purposes of this analysis, we are using Uniform Single Report, Part IIB, OTC net capital purposes meet the standards salary data from the Securities Industry and Financial Markets Association (‘‘SIFMA’’) Report Derivatives Dealer (OMB Control set forth in the proposed amendments. on Management and Professional Earnings in the Number 3235–0498). For the reasons As such, we believe that firms would be Securities Industry 2007, which provides base discussed below, we do not believe the required to develop (if they have not salary and bonus information for middle proposed amendments if adopted would already) criteria for assessing the management and professional positions within the securities industry, as modified by Commission result in a material or substantive creditworthiness of securities to be staff to account for an 1800-hour work-year and multiplied by 5.35 to account for bonuses, firm size, 72 44 U.S.C. 3501 et seq. 73 5 CFR 1320.5(g). Continued

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We generally request comment on all to use the methods set forth in the creditworthiness of registered aspects of these proposed estimates. In Appendix F. We do not currently clearing or derivatives organizations and addition, we request specific comment anticipate that any additional firms will apply those criteria to such securities, on the following items related to these apply for permission to use either although one means of complying with estimates: Appendix E or Appendix F. All of the the proposed amendment would be for • Are we correct in our hours approved firms have already developed broker-dealers to refer to NRSRO estimates and our belief that many models to calculate market and credit ratings. In addition, the expectation that broker-dealers already have their own risk under the alternative net capital the broker-dealer be able to explain that criteria in place for evaluating calculation methods set forth in the any such clearing or derivatives creditworthiness? appendices as well as internal risk organizations meets the standard set • Are we correct in our belief that management control systems.75 As such, forth in the proposed amendment would some broker-dealers would continue to each firm already employs the non- result in the creation and maintenance refer to NRSRO ratings as the basis of NRSRO ratings-based method that of records of those assessments. their creditworthiness decisions? would, under the proposed In the final release adding Note G to • Are we correct in our estimation amendments, become the only option Exhibit A of Rule 15c3–3, we estimated that broker-dealers would engage for determining counterparty credit risk that approximately 102 firms would be outside counsel to review their under Appendices E and F. Since each required to comply with the provisions internally generated standards for entity already employs its own models of the Note.77 In addition, we estimated creditworthiness? If not, how would to calculate market and credit risk and in that release that under subparagraph firms review such standards and what keeps current a record of the basis for (c) to Note G, each broker-dealer would would be the effect of such differing the credit risk weight of each spend approximately 0.25 hours to approaches on our burden estimates? counterparty, the proposed amendments verify that the clearing organizations The proposed amendments to the would therefore not alter the paperwork they used met the conditions of Note G, appendices of Rule 15c3–1 include burden currently imposed by for an aggregate one-time total of 25.5 amendments to certain recordkeeping Appendices E and F. 78 and disclosure requirements that are The proposed amendment to Note G hours; we believe that this estimate subject to the PRA. Specifically, the of Exhibit A to Rule 15c3–3 would would apply to the verification of that proposed amendments to Appendices E potentially modify broker-dealers’ status under the proposed amendment and F of Rule 15c3–1 and conforming existing practices to impose additional as well. We believe that the proposed amendments to Appendix G would recordkeeping burdens. Currently, Note amendment would impose an additional remove the provisions permitting G to Exhibit A of Rule 15c3–3 allows a one-time burden for broker-dealers that reliance on NRSRO ratings for the broker-dealer to include, as a debit in chose to rely on the new standard of purposes of determining counterparty the formula for determining its reserve proposed Rule 15c3–3a(b)(1)(i). Given risk. As a result of these deletions, an requirements, the amount of customer the additional options set forth in Note entity that wished to use the approach margin related to customers’ positions G, we estimate that only half, or 51, of set forth in these appendices to in security futures products posted to a the broker-dealers would choose this determine counterparty risks would be registered clearing or derivatives option, which we believe would result required, as part of its initial application organization that meets one of four in the broker-dealer spending, on to use the alternative approach or in an standards, including maintaining the average, ten hours developing a system amendment, to request Commission highest investment grade rating from an of standards for evaluating approval to determine credit risk NRSRO.76 The proposed amendment creditworthiness for the purposes of would replace the NRSRO ratings-based Note G, resulting in an aggregate initial weights based on internal calculations 79 and make and keep current a record of standard with a requirement that the burden of 510 hours. We also estimate the basis for the credit risk weight of registered clearing or derivatives that firms would employ compliance each counterparty. organization has the highest capacity to attorneys, in many cases relying on We do not believe that the removal of meet its financial obligations and is outside counsel, to review these the option permitting reliance on subject to no greater than minimal credit standards. We estimate the one-time NRSRO ratings would affect the small risk. As such, we believe that firms that costs of outside counsel to be $1,350 per number of entities that currently elect to previously relied on NRSRO ratings for firm, resulting in an aggregate industry 80 compute their net capital deductions the purposes of Note G would be cost of $68,850. pursuant to the alternative methods set required to develop criteria for assessing We generally request comment on all forth in Appendix E or F. Although the aspects of these proposed estimates. In collection of information obligations 75 See, e.g., Alternative Net Capital Requirements addition, we request specific comment for Broker-Dealers That Are Part of Consolidated imposed by the proposed amendments Supervised Entities, Securities Exchange Act on the following items related to these are mandatory, applying for approval to Release No. 49830 (June 8, 2004), 69 FR 33428 at estimates: use the alternative capital calculation is 33456 (June 21, 2004). 76 voluntary. To date, a total of seven See 17 CFR 240.15c3–3a, Note G, (b)(1)(i). A 77 See Reserve Requirements for Margin Related broker-dealer may also include customer margin to Security Futures Products, Exchange Act Release entities have applied for and been related to customers’ positions in security futures No. 34–50295 (August 31, 2004), 69 FR 54182 at granted permission to use the methods products posted to a registered clearing or 54188 (September 7, 2004). derivatives organization (1) that maintains security set forth in Appendix E, while five have 78 × deposits from clearing members in connection with 0.25 102 = 25.5. applied for and been granted permission 79 × regulated options or futures transactions and 10 51 = 510. assessment power over member firms that equal a 80 For the purposes of this analysis, we are using employee benefits and overhead. We believe that combined total of at least $2 billion, at least $500 salary data from the SIFMA Report on Management the legal reviews required by the proposed million of which must be in the form of security and Professional Earnings in the Securities Industry amendments would be performed by compliance deposits; (2) that maintains at least $3 billion in 2007. We believe that the legal reviews required by attorneys at an average rate of $270 per hour. margin deposits; or (3) which does not meet any of the proposed amendments would be performed by Furthermore, we believe that the review process the other criteria but which the Commission has compliance attorneys at an average rate of $270 per will entail ten hours of initial work and five hours agreed, upon a written request from the broker- hour. Furthermore, we believe that the review on an annual basis of $270 × 10 = $2,700 × 550 = dealer, that the broker-dealer may utilize. 17 CFR process will entail five hours of initial work. $270 $1,485,000; $270 × 5 = $1,350 × 550 = $742,500. 240.15c3–3a, Note G, (b)(1)(ii)—(iv). × 5 = $1,350 × 51 = $68,850.

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• Are we correct in our estimate of the collection of information between 30 possibly lead to investment decisions the number of broker-dealers that would and 60 days after publication, so a that are based on incomplete be affected by the proposed amendment comment to OMB is best assured of information. The purpose of the to Note G? having its full effect if OMB receives it proposed rule amendments is to • Are we correct in our estimate of within 30 days of publication. The encourage investors to examine more the percentage of such broker-dealers Commission has submitted the than a single source of information in that choose to rely on proposed Rule proposed collection of information to making an investment decision. 15c3–3a(b)(1)(i)? OMB for approval. Requests for the Eliminating reliance on ratings in the • Are we correct in our belief that materials submitted to OMB by the Commission’s rules could also result in broker-dealers would engage outside Commission with regard to this greater investor due diligence and counsel to review their internally collection of information should be in investment analysis. In addition, the generated standards for writing, refer to File No. S7–17–08, and Commission believes that eliminating creditworthiness? If not, how would be submitted to the Securities and the reliance on ratings in its rules would firms review such standards and what Exchange Commission, Records remove any appearance that the would be the effect of such differing Management Office, 100 F Street, NE., Commission has placed its imprimatur approaches on our burden estimates? Washington, DC 20549–1110. on certain ratings. The instructions to Form X–17A–5 We expect that there would be little Part IIB currently include a summary of VI. Costs and Benefits of the Proposed effect on broker-dealers or other market the credit risk calculation in paragraph Rulemaking participants that are subject to the rules (d) of Rule 15c3–1f. Paragraph (d) of The Commission is sensitive to the that are proposed to be amended. This Rule 15c3–1f is proposed to be amended costs and benefits imposed by its rules. is because the references to NRSROs in to remove that part of the credit risk We have identified certain costs and these rules would be no longer calculation that is summarized in Form benefits of the proposed amendments necessary, can be replaced with an X–17A–5 Part IIB. Accordingly, we have and request comment on all aspects of alternative bright-line standard, or can proposed a conforming amendment to this cost-benefit analysis, including be used as one possible interpretation of the form that would remove the identification and assessment of any a subjective standard set forth in a summary of the credit risk calculation. costs and benefits not discussed in this proposed amendment to the rule. The summary in the instructions analysis. We seek comment and data on The proposed amendments to Rule provides additional information for the the value of the benefits identified. We 3a1–1, Rules 300 and 301 of Regulation benefit of the filer and is not related to also welcome comments on the ATS, Form ATS–R, and Form PILOT the information reported on the forms. accuracy of the cost estimates in each would eliminate the separate definitions Accordingly, we do not believe the section of this analysis, and request that of and references to investment grade proposed amendment would result in a commenters provide data that may be corporate debt securities and non- substantive revision to these collections relevant to these cost estimates. In investment grade corporate debt of information if adopted. addition, we seek estimates and views securities and would replace them with Pursuant to 44 U.S.C. 3506(c)(2)(B), regarding these costs and benefits for a single category ‘‘corporate debt we solicit comments to: particular covered institutions, securities.’’ For reasons discussed (1) Evaluate whether the proposed including small institutions, as well as above, the Commission preliminarily collection of information is necessary any other costs or benefits that may believes that it is not necessary or for the performance of the functions of result from the adoption of these appropriate to assess trading volumes in the agency, including whether the proposed amendments. the narrower segments of investment information shall have practical utility; As discussed above, the proposed rule grade and non-investment grade (2) Evaluate and provide relevant data amendments are designed to address the corporate debt securities to fulfill the regarding the agency’s estimate of the risk that the reference to and use of purposes of those rules. The other burden of the proposed collection of NRSRO ratings in our rules is classes of securities and the threshold information, including the validity of interpreted by investors as an levels themselves would remain the methodology and assumptions used; endorsement of the quality of the credit unchanged. Therefore, the proposed (3) Enhance the quality, utility and ratings issued by NRSROs, and may amendments to Rule 3a1–1 and clarity of the information to be encourage investors to place undue Regulation ATS are not expected to collected; and reliance on the NRSRO ratings. The significantly affect the regulatory (4) Minimize the burden of collection proposed amendments to Rule 3a1–1, treatment of ATSs. With respect to the of information on those who are to Rule 10b–10, Rule 15c3–1, Rule 15c3– proposed changes to Form ATS–R and respond, including through the use of 3, Rules 101 and 102 of Regulation M, Form PILOT, we expect that combining automated collection techniques or Rules 300 and 301 of Regulation ATS, investment grade and non-investment other forms of information technology. and Form ATS–R, Form PILOT, and grade corporate debt securities into a Persons wishing to submit comments Form X–17A–5 Part IIB would eliminate single class for purposes of those two on the collection of information the reference to and requirement for the forms would have only minimal impact, requirements should direct them to the use of NRSRO ratings in these rules. because the total units and total dollar following persons: (1) Desk Officer for volume of corporate debt securities the Securities and Exchange A. Benefits transacted would still have to be Commission, Office of Information and The Commission anticipates that one reported. Budget (‘‘OMB’’), Room 3208, New of the primary benefits of the proposed The proposed amendments to Rule Executive Office Building, Washington, amendments, if adopted, would be the 10b–10 to eliminate a requirement for DC 20503; and (2) Florence E. Harmon, benefit to investors of reducing their transaction confirmations for debt Acting Secretary, Securities and possible undue reliance on NRSRO securities (other than government Exchange Commission, 100 F Street, ratings that could be caused by securities) to inform customers if a NE., Washington, DC 20549–1090 with references to NRSROs in our rules. An security is unrated by an NRSRO. The reference to File No. S7–17–08. OMB is over-reliance on ratings can inhibit other requirements of Rule 10b–10 required to make a decision concerning independent analysis and could would remain unchanged. Eliminating

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this requirement would avoid giving capital charges for those broker-dealers amendments are adopted. Investors credit ratings an imprimatur that may that currently do not conduct their own could incur additional costs if they inadvertently suggest to investors that risk evaluation. We believe that perform a more detailed and an unrated security is inherently riskier allowing broker-dealers to employ their comprehensive analysis before making than a rated security. Accordingly, we own criteria in determining credit risk an investment decision. Broker-dealers anticipate that investors and the for net capital purposes would, by could incur additional costs if they marketplace would benefit from the reducing the reliance on NRSRO ratings perform their own risk evaluation, if elimination of this requirement, in light and therefore more closely aligning a they do not currently do so. of concerns about promoting over- broker-dealer’s net capital-related risk Furthermore, the purpose of the reliance on securities ratings or creating assessments with its general internal proposal is to encourage investors not to confusion about the significance of risk assessments, increase operational place undue reliance on NRSRO ratings those ratings. More generally, efficiency. Furthermore, we believe that in making investment decisions. eliminating this requirement is the proposed amendments could result Investors could still choose to rely consistent with the goal of promoting a in more closely tailored capital charges, solely on NRSRO ratings without dialogue between broker-dealers and and thus lowered costs, for broker- incurring additional costs. their customers—prior to purchase— dealers while still being designed to The proposed amendments to Rule regarding the creditworthiness of ensure net capital requirements 3a1–1, Rules 300 and 301 of Regulation issuers, and should help avoid sufficient to require maintenance of ATS, Form ATS–R, and Form PILOT promoting the use of credit ratings as an capital to achieve the goals of the Net would eliminate the separate definitions oversimplified shorthand that replaces a Capital Rule. of and references to investment grade more complete discussion of credit We believe that the same reasoning corporate debt securities and non- quality issues. applies to the proposed amendment to investment grade debt securities and We preliminarily believe that the Exhibit A of the Customer Protection would replace them with a single proposed amendments to the Net Rule. Broker-dealers that utilize their category ‘‘corporate debt securities.’’ We Capital Rule, its appendices, and own means of evaluating the long-term preliminarily believe that these changes Exhibit A to the Customer Protection financial strength and general would not impose any significant costs Rule would result in a better overall creditworthiness of clearing on market participants. assessment of the risks associated with organizations to which customers’ The proposed amendments to Rule securities held by broker-dealers for the positions in security futures products 3a1–1 and Regulation ATS would purposes of net capital calculations as are posted would better be positioned to marginally reduce the likelihood of an well as of the long-term financial incorporate the overall levels of various ATS meeting the thresholds in those strength and general creditworthiness of categories of risk associated with those rules. For example, under existing Rule clearing organizations to which organizations into their assessments. 3a1–1, an ATS that currently has 40% customers’ positions in security futures In the case of the amendments to of the average daily dollar trading products are posted. As the NRSROs Rules 101 and 102 of Regulation M, we volume in non-investment grade themselves have stressed, the ratings believe the proposed rule amendments corporate debt securities and 0% of the they generate focus solely on credit risk, would have benefits that justify any average daily dollar trading volume in that is, the likelihood that an obligor or costs, if adopted. Because the investment grade corporate debt financial obligation will repay investors exceptions in Rules 101 and 102 are securities for at least four of the in accordance with the terms on which narrowly-tailored, the proposed preceding six calendar months could be they made their investment.81 Many amendments should continue to required to register as an exchange. broker-dealers already conduct their promote investor confidence in the Under the proposed amendment to Rule own risk evaluation. However, for those offering process and the market as a 3a1–1, the Commission would no longer broker-dealers that do not, developing whole by only excepting those securities be able to require the ATS to register as their own means of evaluating risk— that are resistant to manipulation. an exchange, because its average daily including, as would be required by the Market integrity would also continue to dollar trading volume in corporate debt proposed amendments to the Net be promoted, which benefits the market securities combined would be less than Capital Rule, an evaluation of the degree and all participants. Also, since the 40%. A potential cost of the proposed of liquidity—would allow them to better proposals would be a bright-line, amendments to Rule 3a1–1 and incorporate the overall levels of various compliance with the proposed Regulation ATS is that an ATS that categories of risk associated with the amendments would be easy for issuers exceeds one of the existing thresholds securities they hold into their net and other persons subject to the rules. and thus becomes subject to additional capital calculations. In fact, this proposal may lower costs for regulatory requirements (in the case of A separate evaluation of risk by the these people by eliminating the need to Regulation ATS) or must register as an broker-dealer should lead to a better obtain an investment grade rating from exchange (in the case of Rule 3a1–1) understanding of the risks associated a nationally recognized statistical rating would no longer exceed the threshold with those securities which would, we organization. We believe that replacing and would not have to meet the believe, lead to increased operational the NRSRO investment grade attendant requirements. However, the efficiency and potentially lowered net requirement with the proposed Commission preliminarily believes that exceptions should not result in broker- this possibility is remote, and that the 81 See, e.g., Inside the Ratings: What Credit dealers hiring new compliance staff or proposed amendments are unlikely to Ratings Mean, Fitch, August 2007 (‘‘Inside the impose any costs on investors, market Ratings’’), p. 1; Testimony of Michael Kanef, Group making extensive systems changes Managing Director, Moody’s Investors Service, because the proposals utilize existing participants, or the national market Before the United States Senate Committee on bright-line benchmarks. system generally. Banking, Housing, and Urban Affairs (September We believe that any costs associated 26, 2007), p. 2; Testimony of Vickie A. Tillman, B. Costs with the proposed changes to Form Executive Vice President, Standard & Poor’s Credit Market Services, Before the United States Senate We anticipate that broker-dealers and ATS–R and Form PILOT would be Committee on Banking, Housing, and Urban Affairs other market participants could incur minimal. Respondents already (September 26, 2007), p. 3. certain costs if the proposed determine and report the total units and

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total trading volume for investment only triggered when the conditions in communicated to other persons subject grade and non-investment grade the exceptions are met which would to Rules 101 and 102 to rely on the corporate debt securities separately. On only occur in a limited number of exception. This could likely result in the revised forms, respondents would situations. It is only when there is an increased costs not completely offset by report them together as a single item for offering of nonconvertible debt or not needing to obtain an investment ‘‘corporate debt securities.’’ The cost of nonconvertible preferred securities grade rating. the proposed changes to these forms which qualifies as a distribution under With respect to asset-backed would be the cost of adding these Regulation M where a covered person securities, we believe that there should previously separate items together. bids for, purchases or attempts to not be any significant increased costs to We do not expect the proposed induce another person to bid for or persons subject to Rules 101 and 102. amendment to result in any significant purchase the covered security during All persons who are subject to those changes in the costs associated with the applicable restricted period. Thus, rules should know what form the issuer Rule 10b–10. Broker-dealers will there may be offerings of nonconvertible is using to register the offering, continue to generate transaction debt or preferred securities that do not including whether Form S–3 is being confirmations and send those constitute a distribution for purposes of used. Thus, no new analysis would confirmations to customers, and the Regulation M. In such case, the need to be conducted. We also expect proposed amendment if adopted would prohibitions of Regulation M are not that there could be a small number of not be expected to change the cost of triggered and neither the current nor the securities taken out of this exception as generating and sending confirmations. proposed exceptions would be a result of the proposed change. Costs Moreover, we believe that broker- necessary. Additionally, even if a for such issuers, selling shareholders, dealers may not need to incur distribution of the nonconvertible debt underwriters, brokers, dealers, any other significant costs if they choose not to or nonconvertible preferred securities distribution participants, or affiliated input information that a debt security is exists, a person subject to Regulation purchasers of any of these persons unrated into their existing confirmation M’s prohibitions could structure buying affected by this change would be more systems. activity before or after the applicable significant, but we do not expect there We believe that the costs of restricted period so as not to incur any to be a significant number of these compliance with the proposed costs, even if minimal, associated with persons. There could also be minimal amendments to the Net Capital Rule and relying on the proposed exceptions. costs to train broker-dealer and self- its appendices as well as to Note G of This holds true for asset-backed regulatory organization staff and to Exhibit A of the Rule 15c3–3 would be securities as well. update broker-dealer policies and minimal for entities that already employ We believe that many of the issuers of procedures and make system changes their own criteria in determining credit these securities would already know if regarding the new exceptions. risk for net capital purposes. In the they are WKSI issuers based on the non- C. Request for Comment event the broker-dealer inaccurately common equity standard because this evaluates the creditworthiness and analysis would have been already done We request data to quantify the costs liquidity of its positions, a potential cost as part of the offering process. Persons and the benefits above. We seek could be that the broker-dealer is other than issuers who would be subject estimates of these costs and benefits, as required to take a larger haircut on its to Rules 101 and 102 should have access well as any costs and benefits not proprietary positions, and therefore to the issuer’s WKSI status as well via already described, which could result reserve additional capital. This could the issuer’s 10K filings. Such persons from the adoption of the proposed affect its ability to hold its positions or should also be in a position with the amendments. Specifically, would the to add to its positions. As for broker- issuer to obtain any other information proposal result in lower costs associated dealers that do not currently employ needed to make a determination as to with debt and preferred securities such criteria, if the proposed whether the proposed exception would covered by the new exception? What amendments are adopted, after apply to the security at issue. Thus, we new costs, if any, would be associated considering comment, we could take the believe that these persons should incur with the proposal for persons subject to view that securities rated by NRSROs no significant costs under the proposal. Rules 101 and 102 where the would meet the standards in the rules There may be, however, costs to any nonconvertible debt and nonconvertible as amended and this would provide a person subject to Rules 101 or 102 to preferred securities are issued by issuers who are WKSI based on the common way for broker-dealers that do not make minor system changes should the equity standard? What costs, if any, determine credit risk on their own to Commission adopt this proposal would be related to the change for asset- avoid incurring any additional costs. If because of the proposed new standard. we were to adopt the view that NRSRO We do believe, however, that there backed securities? For these issues, rated securities meet the standard in the may be increased costs for issuers and what is the cost of determining the proposed amendments, it would mean other persons subject to Rules 101 and aggregate principal amount of that any potential costs would be 102 as they relate to nonconvertible debt nonconvertible debt securities other wholly voluntary. While we encourage and preferred securities if that issuer is than common equity and then broker-dealers that have not yet WKSI based on the common equity communicating the exception to other persons subject to Rules 101 and 102? developed their own credit risk standard.82 Since the issuer in that case Would any securities that currently fall evaluation procedures to do so, such would not need to determine the within the existing exceptions not meet actions would proceed at the time and aggregate principal amount of their the exceptions as proposed? Would the pace desired by the broker-dealers. nonconvertible securities other than We expect the costs of the proposal to proposal affect the cost to broker dealers common equity for purposes of modify Rules 101 and 102 of Regulation of generating transaction confirmations? Securities Act disclosure, new analysis M to be minimal to most persons subject Do investors benefit from the would need to be conducted and to those rules who could rely on the notification on the transaction proposed amendments as they relate to 82 17 CFR 230.405. The common equity standard confirmation? Does the confirmation nonconvertible debt and preferred is at subparagraph (1)(i)(A) of the definition of help promote conversations about securities. The proposed exceptions are ‘‘well-known seasoned issuer.’’ broker-dealers and their customers

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regarding unrated securities? Are there separate entries for ‘‘investment grade 102 of Regulation M are intended to alternative means to promote such corporate debt securities’’ and ‘‘non- promote capital formation. The conversations that would not create investment grade corporate debt proposed amendments should promote over-reliance on NRSRO ratings? securities.’’ Therefore, we preliminarily continued investor confidence in the believe that the changes to Form ATS– offering process by proposing an VII. Consideration of the Burden on R and Form PILOT would be unlikely to exception from Regulation M’s Rule 101 Competition, Promotion of Efficiency, have any significant impact on and 102 prohibitions limited to those and Capital Formation efficiency, competition, or capital securities which are resistant to Section 3(f) of the Exchange Act 83 formation. manipulation. Such investor confidence requires the Commission, whenever it We do not believe that the proposed in our markets should promote engages in rulemaking and is required to amendment to Rule 10b–10 would continued capital formation. We believe consider or to determine whether an result in any burden on competition that that the proposals should foster action is necessary or appropriate in the is not necessary or appropriate in continued market integrity which public interest, to consider whether the furtherance of the purposes of the should also translate into capital action will promote efficiency, Exchange Act. The proposed deletion of formation by only allowing for non- competition, and capital formation. In paragraph (a)(8) of that rule would not manipulative buying activity during addition, Section 23(a)(2) of the be expected to impose any significant distributions. Issuers of nonconvertible Exchange Act 84 requires the additional costs upon broker-dealers debt, nonconvertible preferred securities Commission, when promulgating rules (which in any event would not be and asset-backed securities who fall under the Exchange Act, to consider the prohibited from voluntarily including within the proposed exceptions may be impact any such rules would have on information that a particular debt encouraged to engage in capital competition. Section 23(a)(2) further security is unrated by an NRSRO). For formation knowing that the proposed provides that the Commission may not similar reasons, we do not believe that exceptions are available for their buying adopt a rule that would impose a this proposed amendment would activity as well as the buying activity of burden on competition not necessary or impose any significant adverse effects distribution participants. Because the appropriate in furtherance of the on efficiency, competition or capital proposal eliminates the need to obtain purposes of the Exchange Act. formation. an investment grade rating by an The proposed amendments would We preliminarily believe that the NRSRO, a hurdle to both relying on the remove the reference to NRSRO ratings proposed amendments to the Net exception and capital formation would in several of our rules and forms. These Capital Rule and its appendices or to be eliminated, which would also include Rules 3a1–1, 10b–10, 15c3–1, Note G of Exhibit A of the Rule 15c3– promote capital formation. 15c3–3, Rules 101 and 102 of Regulation 3 would serve to promote efficiency and The proposal would provide an M, Rules 300 and 301 of Regulation capital formation. As noted above, we alternative to obtaining an investment ATS, and Forms ATS–R and PILOT. The believe that by relying on their own grade rating but still would provide purpose of the proposed amendments is means of evaluating risk, broker-dealers clear guidance to all persons subject to to address concerns that the references would better incorporate the overall those rules. We preliminarily believe to NRSRO ratings in our rules and forms levels of risk associated with the that the proposed Regulation M contributed to any over-reliance on securities they hold into their Net amendments would promote market credit ratings by investors. Capital Rule. In turn, we believe, this efficiency by providing continued We preliminarily believe that the better understanding would more clarity to issuers, distribution proposed amendments to Rule 3a1–1 closely align a broker-dealer’s net participants, and their affiliated and Rules 300 and 301 of Regulation capital-related risk assessments with its purchasers as to the scope of ATS would be unlikely to create any general internal risk assessments and permissible activity by providing a adverse impact on efficiency, lead to increased operational efficiency, bright line test for compliance with the competition, or capital formation. The potentially lowered net capital charges, proposed exceptions comparable to the Commission preliminarily believes that and a more efficient allocation of existing exception. In addition, the combining investment grade and non- capital. In addition, broker-dealers that proposals continue to utilize existing investment grade corporate debt developed their own means of benchmarks so as not to trigger securities into a single class of securities evaluating the long-term financial inefficiencies that might result from use for purposes of the thresholds in those strength and general creditworthiness of of a new standard. The proposal would rules is unlikely to affect whether an clearing organizations to which also eliminate the need to obtain an ATS crosses one of those thresholds. customers’ positions in security futures investment grade rating from an NRSRO Moreover, the other classes of securities products are posted for purposes of Note to rely on the exception, which will for which the thresholds are applied— G to Exhibit A of Rule 15c3–3 would eliminate a potential inefficiency in the and the levels of the thresholds better be positioned to incorporate the capital raising process. For these themselves—would remain unchanged. overall levels of various categories of reasons, the Commission preliminarily The proposed changes to Form ATS– risk associated with those organizations believes that the proposed exceptions R and Form PILOT would simplify into their assessments, creating a more will promote efficient capital formation reporting for ATSs and self-regulatory efficient means of evaluating those and competition. systems that operate pilot trading organizations for the sake of the Rule We have considered the proposed systems. Form ATS–R and Form PILOT 15c3–3 than simply relying on NRSRO amendments to Rules 101 and 102 of respondents are already required to credit ratings alone. We do not Regulation M in light of the standards determine and report the volumes of anticipate that the proposed cited in Section 23(a)(2) and believe corporate debt securities. A single amendments to the Net Capital Rule and preliminarily that, if adopted, they reporting item for ‘‘corporate debt its appendices or to Note G of Exhibit would not likely impose any significant securities’’ would replace the existing A of Rule 15c3–3 would have any burden on competition not necessary or impact on competition. appropriate in furtherance of the 83 15 U.S.C. 78c(f). We preliminarily believe that the Exchange Act. We preliminary believe 84 15 U.S.C. 78w(a)(2). proposed amendments to Rules 101 and that the use of the existing WSKI and

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Form S–3 standards would mean that An alternative trading system that (which include conforming any additional burdens the proposal complies with Regulation ATS must, amendments to Appendix G of Rule may place on market participants among other things, register as a broker- 15c3–1 and the General Instructions to should be minimal as market dealer.89 Thus, the Commission’s Form X–17A–5, Part IIB), if adopted, participants are already familiar with definition of small entity as it relates to would not apply to small entities. and utilize these benchmarks in other broker-dealers also would apply to Appendices E and G apply to broker- contexts. Additionally, the proposals ATSs. An ATS that approaches the dealers that are part of a consolidated would apply equally to all issuers, volume thresholds for investment grade supervised entity and Appendix F and distribution participants, and their or non-investment grade corporate debt Form X–17A–5, Part IIB apply to OTC affiliated issuers. Thus, no person securities in Rule 3a1–1 or Regulation Derivatives Dealers that have applied to covered by Regulation M should be put ATS would be very large and thus the Commission for authorization to at a competitive disadvantage, and the unlikely to be a small entity or small compute capital charges as set forth in proposal would not impose a significant organization. With respect to the Appendix F in lieu of computing burden on competition not necessary or proposed changes to Form ATS–R, even securities haircuts pursuant to Rule appropriate in furtherance of the Act. if an ATS is a ‘‘small entity’’ or ‘‘small 15c3–1(c)(2)(vi). All of these brokers or We generally request comment on the organization’’ for purposes of the RFA, dealers would be larger than the effects of the proposed amendments to the only change being proposed to the definition of a small broker dealer in Rules 3a1–1, 10b–10, 15c3–1, 15c3–3, form is to eliminate the distinction Rule 0–10. Rules 101 and 102 of Regulation M, between investment grade and non- The proposed amendments to Rule Rules 300 and 301 of Regulation ATS, investment grade corporate debt 15c3–3a, if adopted, would not have a and Forms ATS–R and PILOT on securities and to require reporting for significant economic impact on a substantial number of small entities. efficiency, competition, and capital the combined class of corporate debt The proposed amendments to Rule formation. Commenters should provide securities. We believe this would 15c3–3a would apply only to broker- analysis and empirical data to support impose only negligible costs on ATSs, dealers that clear and carry positions in their views. even if they were small entities or small organizations. security futures products in securities VIII. Regulatory Flexibility Act Similarly, SROs are the only accounts for the benefit of customers. Certification respondents to Form PILOT and are not None of those broker-dealers affected by ‘‘small entities’’ for purposes of the the rule is a small entity as defined in Section 3(a) of the Regulatory 85 RFA. Accordingly, no small entities Rule 0–10 (confirming this with OEA). Flexibility Act of 1980 requires the would be affected by the proposed With respect to the amendments to Commission to undertake an initial amendments to Form PILOT. Rules 101 and 102 of Regulation M, it regulatory flexibility analysis of the We believe that the proposed is unlikely that any broker-dealer that is proposed rule on small entities unless amendment to Rule 10b–10 will not defined as a ‘‘small business’’ or ‘‘small the Commission certifies that the rule, if have a significant economic impact on organization’’ as defined in Rule 0–10 90 adopted, would not have a significant a substantial number of small entities. could be an underwriter or other economic impact on a substantial While some broker-dealers that effect distribution participant as they would number of small entities.86 Pursuant to transactions in the debt securities not have sufficient capital to participate Section 605(b) of the Regulatory currently subject to paragraph (a)(8) of in underwriting activities. Small Flexibility Act (‘‘RFA’’), the that rule may be small entities, the business or small organization for Commission hereby certifies that the proposed amendment should not result purposes of ‘‘issuers’’ or ‘‘person’’ other proposed amendments to the rule, in any significant change to the cost of than an investment company is defined would not, if adopted, have a significant providing confirmations to customers in as a person who, on the last day of its economic impact on a substantial connection with those transactions. most recent fiscal year, had total assets number of small entities. The proposed amendments to the of $5 million or less.91 We believe that For purposes of Commission securities haircut provisions in none of the various persons that would rulemaking in connection with the RFA, paragraphs (E), (F), and (H) of Rules be affected by this proposal would small entities include broker-dealers 15c3–1(c)(2)(vi), if adopted, would not qualify as a small entity under this with total capital (net worth plus have a significant economic impact on definition as it is unlikely that any subordinated liabilities) of less than a small number of entities. If the issuer of that size had investment grade $500,000 on the date in the prior fiscal Commission adopts the proposed securities that could rely on the existing year as of which its audited financial amendments, we would take the view in exception. Therefore, we believe that statements were prepared pursuant to the adopting release that securities rated these amendments would not impose a Rule 17a–5(d) under the Exchange by NRSROs as currently required would significant economic impact on a Act,87 or, if not required to file such meet the amended standards. Thus, the substantial number of small entities. statements, a broker or dealer that had proposed amendments would allow for We encourage written comments total capital (net worth plus compliance without reference to the regarding this certification. The subordinated liabilities) of less than standards that are currently in the rule Commission solicits comment as to $500,000 on the last day of the (i.e., NRSRO ratings), but broker-dealers whether the proposed amendments to preceding fiscal year (or in the time that that wish to use them would still be Rules 3a1–1, 10b–10, 15c3–1, 15c3–3, it has been in business, if shorter); and accommodated. Accordingly, the rule Rules 101 and 102 of Regulation M, is not affiliated with any person (other would not have any economic impact Rules 300 and 301 of Regulation ATS, than a natural person) that is not a small on small entities because they would and Forms ATS–R and PILOT could business or small organization.88 not have to change their current have an effect on small entities that has practices. not been considered. We request that 85 5 U.S.C. 603(a). The proposed amendments to the commenters describe the nature of any 86 5 U.S.C. 605(b). Appendices E and F to Rule 15c3–1 87 See 17 CFR 240.17a–5(d). 90 17 CFR 240.0–10. 88 See 17 CFR 240.0–10(c). 89 See 17 CFR 242.301(b)(1). 91 17 CFR 240.0–10(a).

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impact on small entities and provide (b)(3)(vii) and by removing (b)(3)(viii) to to a minimal amount of credit risk and empirical data to support the extent of read as follows: has sufficient liquidity such that it can such impact. be sold at or near its carrying value § 240.3a1–1 Exemption from the definition almost immediately, or in the case of IX. Statutory Basis and Text of the of ‘‘Exchange’’ under Section 3(a)(1) of the any negotiable certificates of deposit or Proposed Amendments Act. bankers acceptance or similar type of The amendments to Rules 3a1–1, * * * * * instrument issued or guaranteed by any 10b–10, 15c3–1, 15c3–3, Rules 101 and (b) * * * bank as defined in section 3(a)(6) of the 102 of Regulation M, Rules 300 and 301 (3) * * * Securities Exchange Act of 1934, the of Regulation ATS, and Forms ATS–R, (v) Corporate debt securities, which applicable percentage of the market Pilot, 17–H, and X–17A–5 Part IIB shall mean any securities that: value of the greater of the long or short under the Act are being proposed (A) Evidence a liability of the issuer position in each of the categories pursuant to the Sections 7,92 17(a),93 of such securities; specified below are: 19(a) 94 of the Securities Act, Sections (B) Have a fixed maturity date that is * * * * * 2,95 3,96 9(a),97 10,98 11,99 11A(c),100 at least one year following the date of 12,101 13,102 14,103 15,104 15(c),105 issuance; and (F) (1) Nonconvertible debt securities. 15(g),106 17,107 17(a),108 23(a),109 30,110 (C) Are not exempted securities, as In the case of nonconvertible debt and 36(a)(1) 111 of the Exchange Act, and defined in section 3(a)(12) of the Act, securities having a fixed interest rate Sections 23,112 30,113 and 38 114 of the (15 U.S.C. 78c(a)(12)); and a fixed maturity date, which are not Investment Company Act of 1940. (vi) Foreign corporate debt securities, traded flat or in default as to principal which shall mean any securities that: or interest and which are subject to no List of Subjects in 17 CFR Parts 240, (A) Evidence a liability of the issuer greater than moderate credit risk and 242, and 249 of such debt securities; have sufficient liquidity such that they Broker, Reporting and recordkeeping (B) Are issued by a corporation or can be sold at or near their carrying requirements, Securities. other organization incorporated or value within a reasonably short period of time, the applicable percentages of Text of Amendment organized under the laws of any foreign country; and the market value of the greater of the In accordance with the foregoing, (C) Have a fixed maturity date that is long or short position in each of the Title 17, Chapter II of the Code of at least one year following the date of categories specified below are: Federal Regulations is proposed to be issuance; and * * * * * amended as follows: (vii) Foreign sovereign debt securities, (2) A broker or dealer may elect to PART 240—GENERAL RULES AND which shall mean any securities that: exclude from the above categories long REGULATIONS, SECURITIES (A) Evidence a liability of the issuer or short positions that are hedged with EXCHANGE ACT OF 1934 of such debt securities; short or long positions in securities (B) Are issued or guaranteed by the issued by the United States or any 1. The authority citation for part 240 government of a foreign country, any agency thereof or nonconvertible debt continues to read, in part, as follows: political subdivision of a foreign securities having a fixed interest rate Authority: 15 U.S.C. 77c, 77d, 77g, 77j, country, or any supranational entity; and a fixed maturity date and which are 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, and not traded flat or in default as to 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, (C) Do not have a maturity date of a principal or interest, and which are 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, year or less following the date of subject to no greater than moderate 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a– issuance. credit risk and have sufficient liquidity 20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, 3. Section 240.10b–10 is amended by such that they can be sold at or near 80b–11, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted. removing paragraph (a)(8) and their carrying value within a reasonably redesignating paragraph (a)(9) as short period of time, if such securities * * * * * paragraph (a)(8). have maturity dates: 2. Amend § 240.3a1–1 by revising 4. Section 240.15c3–1 is amended by paragraphs (b)(3)(v), (b)(3)(vi), and * * * * * revising the introductory text of (H) In the case of cumulative, non- 92 15 U.S.C. 77g. paragraphs (c)(2)(vi)(E), (c)(2)(vi)(F)(1), convertible preferred stock ranking prior 93 15 U.S.C. 77q(a). and (c)(2)(vi)(F)(2), and by revising to all other classes of stock of the same 94 15 U.S.C. 77s(a). paragraph (c)(2)(vi)(H) to read as issuer, which is subject to no greater 95 15 U.S.C. 78b. follows: than moderate credit risk and has 96 15 U.S.C. 78c. sufficient liquidity such that it can be 97 15 U.S.C. 78i(a). § 240.15c3–1 Net capital requirements for 98 15 U.S.C. 78j. brokers or dealers. sold at or near its carrying value within 99 15 U.S.C. 78k. * * * * * a reasonably short period of time and 100 15 U.S.C. 78k–1(c). (c) * * * which are not in arrears as to dividends, 101 15 U.S.C. 78l. (2) * * * the deduction shall be 10% of the 102 15 U.S.C. 78m. (vi) * * * market value of the greater of the long 103 15 U.S.C. 78n. or short position. 104 15 U.S.C. 78o. (E) Commercial paper, bankers 105 15 U.S.C. 78o(c). acceptances and certificates of deposit. * * * * * 106 15 U.S.C. 78o(g). In the case of any short term promissory 5. Section 240.15c3–1e is amended by 107 15 U.S.C. 78q. note or evidence of indebtedness which removing paragraphs (c)(4)(vi)(A) 108 15 U.S.C. 78q(a). has a fixed rate of interest or is sold at through (c)(4)(vi)(D) and redesignating 109 15 U.S.C. 78w(a). paragraphs (c)(4)(vi)(E), (F), and (G) as 110 a discount, which has a maturity date at 15 U.S.C. 78dd. paragraphs (c)(4)(vi)(A), (B), and (C). 111 15 U.S.C. 78mm(a)(1). date of issuance not exceeding nine 112 15 U.S.C. 80a–23. months exclusive of days of grace, or 6. Section 240.15c3–1f is amended by: 113 15 U.S.C. 80a–29. any renewal thereof, the maturity of a. Removing the phrase ‘‘by a 114 15 U.S.C. 80a–37. which is likewise limited, and is subject nationally recognized statistical rating

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organization (‘‘NRSRO’’)’’ in paragraph 10. Section 242.101 is amended by (3) Is not an exempted security, as (d)(2)(i); revising paragraph (c)(2) to read as defined in section 3(a)(12) of the Act (15 b. Removing the phrase ‘‘by an follows: U.S.C. 78c(a)(12)). NRSRO’’ in paragraphs (d)(2)(ii), § 242.101 Activities by distribution * * * * * (d)(3)(i), and (d)(3)(ii); and participants. 13. Section 242.301 is amended by: c. Revising the first and second * * * * * a. Adding the word ‘‘or’’ to the end of sentences of paragraph (d)(4). paragraph (b)(5)(i)(C); The revision reads as follows: (c) * * * (2) Nonconvertible and asset-backed b. Revising paragraph (b)(5)(i)(D); § 240.15c3–1f Optional market and credit securities. Nonconvertible debt c. Removing paragraph (b)(5)(i)(E); risk requirements for OTC derivatives securities, nonconvertible preferred d. Adding the word ‘‘or’’ to the end dealers (Appendix F to 17 CFR 240.15c3–1). securities, and asset-backed securities, of paragraph (b)(6)(i)(C); * * * * * if: e. Revising paragraph (b)(6)(i)(D); and (d) * * * (i) For nonconvertible debt securities f. Removing paragraph (b)(6)(i)(E). (4) Counterparties may be rated by the and nonconvertible preferred securities, The revisions read as follows: the issuer of such securities meets the OTC derivatives dealer, or by an § 242.301 Requirements for alternative affiliated bank or affiliated broker-dealer requirements of ‘‘well-known seasoned trading systems. of the OTC derivatives dealer, upon issuer’’ as that term is used in § 230.405 * * * * * approval by the Commission on of this chapter, but only if such issuer (b) * * * application by the OTC derivatives also meets the requirements of (5) * * * dealer. Based on the strength of the OTC paragraph (1)(i)(B)(1) of that definition; derivatives dealer’s internal credit risk or (i) * * * management system, the Commission (ii) For asset-backed securities, the (D) With respect to corporate debt may approve the application. * * * offer and sale of the security is securities, 5 percent or more of the registered using Form S–3 (§ 239.13 of average daily volume traded in the * * * * * United States. 7. Section 240.15c3–1g is amended by this chapter); or revising paragraph (a)(3)(i)(F) to read as * * * * * * * * * * follows: 11. Section 242.102 is amended by (6) * * * revising paragraph (d)(2) to read as (i) * * * § 240.15c3–1g Conditions for ultimate follows: (D) With respect to corporate debt holding companies of certain brokers or securities, 20 percent or more of the dealers (Appendix G to 17 CFR 240.15c3–1). § 242.102 Activities by issuers and selling average daily volume traded in the * * * * * security holders during a distribution. United States. (a) * * * * * * * * * * * * * (3) * * * (d) * * * (i) * * * (2) Nonconvertible and asset-backed PART 249—FORMS, SECURITIES (F) Credit risk weights shall be securities. Nonconvertible debt EXCHANGE ACT OF 1934 determined according to the provisions securities, nonconvertible preferred of paragraphs (c)(4)(vi)(A) of securities, and asset-backed securities, 14. The authority citation for part 249 § 240.15c3–1e. if: continues to read in part as follows: (i) For nonconvertible debt securities Authority: 15 U.S.C. 78a et seq., 7202, * * * * * and nonconvertible preferred securities, 8. Section 15c3–3a is amended by 7233, 7241, 7262, 7264, and 7265; and 18 the issuer of such securities meets the U.S.C. 1350, unless otherwise noted. revising Note G paragraph (b)(1)(i) to requirements of ‘‘well-known seasoned read as follows: * * * * * issuer’’ as that term is used in § 230.405 15. Amend Form X–17A–5 Part IIB § 240.15c3–3a Exhibit A—formula for of this chapter, but only if such issuer General Instructions (referenced in determination reserve requirement of also meets the requirements of § 249.617) by removing the phrase ‘‘by brokers and dealers under § 240.15c3–3. paragraph (1)(i)(B)(1) of that definition; a nationally recognized statistical rating * * * * * or organization (‘NRSRO’)’’ and the phrase Note G. * * * (ii) For asset-backed securities, the ‘‘by an NRSRO’’ wherever it appears in (b) * * * offer and sale of the security is the section ‘‘Credit risk exposure’’ under (1) * * * registered using Form S–3 (§ 239.13 of the heading ‘‘Computation of Net (i) Has the highest capacity to meet its this chapter); or Capital and Required Net Capital’’ and financial obligations and is subject to no * * * * * before the heading ‘‘Aggregate Securities greater than minimal credit risk; or 12. Section 242.300 is amended by and OTC Derivatives Positions.’’ * * * * * revising paragraph (i), removing Note: The text of Form X–17A–5 Part IIB paragraph (j), and redesignating does not and this amendment will not appear PART 242—REGULATIONS M, SHO, paragraph (k) as paragraph (j). in the Code of Federal Regulations. ATS, AC, AND NMS AND CUSTOMER The revision reads as follows: 16. Form ATS–R (referenced in MARGIN REQUIREMENTS FOR § 242.300 Definitions. § 249.638) is amended by: SECURITY FUTURES * * * * * a. In the instructions to the form, 9. The authority citation for part 242 (i) Corporate debt security shall mean Section B, revising the second term and continues to read as follows: any security that: removing the third term; and Authority: 15 U.S.C. 77g, 77q(a), 77s(a), (1) Evidences a liability of the issuer b. In Section 4 of the form, revising 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k–1(c), 78l, of such security; Line L, to read ‘‘Corporate debt 78m, 78n, 78o(b), 78o(c), 78o(g), 78q(a), (2) Has a fixed maturity date that is at securities,’’ removing Line M, and 78q(b), 78q(h), 78w(a), 78dd–1, 78mm, 80a– least one year following the date of redesignating Lines N and O as Lines M 23, 80a–29, and 80a–37. issuance; and and N.

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Note: The text of Form ATS–R does not SECURITIES AND EXCHANGE All comments received will be posted and this amendment will not appear in the COMMISSION without change; we do not edit personal Code of Federal Regulations. identifying information from 17 CFR Parts 229, 230, 239, and 240 submissions. You should submit only The revision reads as follows: [Release No. 33–8940; 34–58071; File No. information that you wish to make Form ATS–R, Quarterly Report of S7–18–08] available publicly. Alternative Trading System Activities RIN 3235–AK18 FOR FURTHER INFORMATION CONTACT: Form ATS–R Instructions Steven Hearne, Eduardo Aleman, or Security Ratings Katherine Hsu, Special Counsels in the B. * * * Office of Rulemaking, Division of AGENCY: Securities and Exchange Corporation Finance, at (202) 551–3430, Corporate Debt Securities—shall Commission. 100 F Street NE., Washington, DC mean any securities that (1) evidence a ACTION: Proposed rule. liability of the issuer of such securities; 20549. (2) have a fixed maturity date that is at SUMMARY: This is one of three releases SUPPLEMENTARY INFORMATION: The least one year following the date of that the Commission is publishing Commission is proposing amendments issuance; and (3) are not exempted simultaneously relating to the use of to Regulation S–K,1 and rules and forms securities, as defined in section 3(a)(12) security ratings by nationally recognized under the Securities Act of 1933 of the Act (15 U.S.C. 78c(a)(12)). statistical rating organizations in its (Securities Act),2 and the Securities * * * * * rules and forms. In this release, the Exchange Act of 1934 (Exchange Act).3 Commission proposes to replace rule In Regulation S–K, the Commission is 17. Form PILOT (referenced in and form requirements under the 4 5 § 249.821) is amended by: proposing to amend Items 10, 1100, Securities Act of 1933 and the Securities 1112,6 and 1114.7 Under the Securities a. In the instructions to the form, Exchange Act of 1934 that rely on Act, the Commission is proposing to Section B, revising the second term and security ratings (for example, Forms amend Rules 134,8 138,9 139,10 168,11 removing the third term; and S–3 and F–3 eligibility criteria) with 415,12 436,13 Form S–3,14 Form S–4,15 alternative requirements. In addition, b. In Section 9 of the form, revising Form F–1,16 Form F–3,17 Form F–4,18 the Commission requests comment on Line J, to read ‘‘Corporate debt and Form F–9.19 The Commission is its rules relating to the disclosure of also proposing to amend Schedule securities,’’ removing Line K, and security ratings. redesignating Lines L, M, N and O as 14A 20 under the Exchange Act. DATES: Comments should be received on Lines K, L, M and N. or before September 5, 2008. I. Background Note: The text of Form PILOT does not and ADDRESSES: Comments may be On June 16, 2008, in furtherance of this amendment will not appear in the Code submitted by any of the following of Federal Regulations. the Credit Rating Agency Reform Act of methods: 2006,21 the Commission published for The revision reads as follows: Electronic Comments notice and public comment two 22 • rulemaking initiatives. The first Form PILOT, Initial Operation Report, Use the Commission’s Internet proposes additional requirements for Amendment to Initial Operation Report comment form (http://www.sec.gov/ nationally recognized statistical rating and Quarterly Report for Pilot Trading rules/proposed.shtml); or • organizations (NRSROs) that were Systems Operated by Self-Regulatory Send an e-mail to rule- directed at reducing conflicts of interest Organizations [email protected]. Please include File in the credit rating process, fostering Number S7–18–08 on the subject line; Form PILOT Instructions competition and comparability among or credit rating agencies, and increasing • Use the Federal eRulemaking Portal transparency of the credit rating B. * * * (http://www.regulations.gov). Follow the Corporate Debt Securities—shall instructions for submitting comments. 1 mean any securities that (1) evidence a 17 CFR 229.10 through 1123. Paper Comments 2 15 U.S.C. 77a et seq. liability of the issuer of such securities; • 3 15 U.S.C. 78a et seq. (2) have a fixed maturity date that is at Send paper comments in triplicate 4 17 CFR 229.10. least one year following the date of to Secretary, Securities and Exchange 5 17 CFR 229.1100. issuance; and (3) are not exempted Commission, 100 F Street NE., 6 17 CFR 229.1112. securities, as defined in section 3(a)(12) Washington, DC 20549–1090. 7 17 CFR 229.1114. of the Act (15 U.S.C. 78c(a)(12)). All submissions should refer to File 8 17 CFR 230.134. Number S7–18–08. This file number 9 17 CFR 230.138. By the Commission. 10 should be included on the subject line 17 CFR 230.139. Dated: July 1, 2008. 11 17 CFR 230.168. if e-mail is used. To help us process and Florence E. Harmon, 12 17 CFR 230.415. review your comments more efficiently, 13 17 CFR 230.436. Acting Secretary. please use only one method. The 14 17 CFR 239.13. [FR Doc. E8–15280 Filed 7–10–08; 8:45 am] Commission will post all comments on 15 17 CFR 239.25. BILLING CODE 8010–01–P the Commission’s Web site (http:// 16 17 CFR 239.31. www.sec.gov/rules/proposed.shtml). 17 17 CFR 239.33. Comments are also available for public 18 17 CFR 239.34. inspection and copying in the 19 17 CFR 239.39. 20 Commission’s Public Reference Room, 17 CFR 240.14a–101. 21 Pub. L. No. 109–291, 120 Stat. 1327 (2006). 100 F Street, NE., Washington, DC 22 Proposed Rules for Nationally Recognized 20549, on official business days Statistical Rating Organizations, Release No. 34– between the hours of 10 a.m. and 3 p.m. 57967 (Jun. 16, 2008).

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process.23 The second is designed to a clear delineation between the this requirement, the Commission improve investor understanding of the Commission’s historic practice of specifically noted that commenters risk characteristics of structured finance precluding the disclosure of security believed that the component relating to products. These proposals address ratings in these filings and the investment grade ratings was concerns about the integrity of the credit Commission’s then-developing appropriate because nonconvertible rating procedures and methodologies of acknowledgement of the growing debt securities are generally purchased NRSROs in light of the role they played importance of ratings in the securities on the basis of interest rates and in determining the security ratings for markets and in the regulation of those security ratings.32 Consistent with Form securities that were the subject of the markets. Soon thereafter, the S–3, the Commission adopted a recent turmoil in the credit markets. Commission adopted rules that not only provision in Form F–3 providing for the Today’s proposals comprise the third set forth its new policy of permitting the eligibility of a primary offering of of these three rulemaking initiatives voluntary disclosure of security ratings investment grade non-convertible debt relating to security ratings by an NRSRO in registration statements but that also securities by eligible foreign private that the Commission is proposing. This encouraged such disclosure by the issuers.33 release, together with two companion issuer.26 The rules permitted the Since the adoption of those rules releases, sets forth the results of the voluntary disclosure of security ratings relating to security ratings and Form S– Commission’s review of the in a communication deemed not to be 3 and Form F–3, other Commission requirements in its rules and forms that a prospectus and provided that a forms and rules have included rely on security ratings by an NRSRO. security rating by an NRSRO is requirements that likewise rely on the The proposals also address recent generally not part of a registration ratings issued to a security.34 Among recommendations issued by the statement or report prepared or certified them are Form F–9,35 Forms S–4 and F– President’s Working Group on Financial by a person within the meaning of 4,36 and Exchange Act Schedule 14A.37 Markets, the Financial Stability Forum Sections 7 27 and 11 28 of the Securities Shelf registration requirements for asset- on Enhancing Market and Institutional Act. backed securities also depend on a Resilience, and the Technical Concurrent with the adoption of these security ratings component.38 In 1983, Committee of the International rules regarding security ratings, the the Commission adopted Securities Act Organization of Securities Commission adopted Securities Act Rule 415 which permits certain 24 Commissions. Consistent with these Form S–3, the short-form Securities Act mortgage related securities, among recommendations, the Commission is registration statement for eligible others, to be offered on a delayed 29 considering whether the inclusion of domestic issuers. The Commission basis.39 A mortgage related security is requirements related to security ratings adopted a provision in Form S–3 that a defined in section 3(a)(41) of the in its rules and forms has, in effect, primary offering of non-convertible debt Exchange Act,40 as, among other things, placed an ‘‘official seal of approval’’ on securities may be eligible for registration 30 ‘‘a security that is rated in one of the ratings that could adversely affect the on the form if rated investment grade. two highest rating categories by at least quality of due diligence and investment This provision provided debt securities one nationally recognized statistical analysis. The Commission believes that issuers whose public float did not reach today’s proposals could reduce undue the required threshold, or that did not Requirements for Primary Offerings on Forms S–3 reliance on ratings and result in have a public float, with an alternate and F–3, Release No. 33–8878 (Dec. 19, 2007) [72 improvements in the analysis that means of becoming eligible to register FR 73534]. underlies investment decisions. offerings on Form S–3.31 In adopting 32 See Section III.A.1 of the Integrated Disclosure In 1981, the Commission issued a Release. Later, in 1992, the Commission expanded the eligibility requirement to delete references to statement of policy regarding its view of determining capital charges on different grades of debt or preferred securities and provide Form S–3 disclosure of security ratings in debt securities under Rule 15c3–1 under the eligibility for other investment grade securities registration statements under the Exchange Act (Net Capital Rule). See 17 CFR (such as foreign currency or other cash settled 240.15c–31(c)(2)(vi)(E) and Adoption of derivative securities). See Simplification of Securities Act.25 This statement marked Amendments to Rule 15c3–1 and Adoption of Registration Procedures for Primary Securities Alternative Net Capital Requirement for Certain Offerings, Release No. 33–6964 (Oct. 22, 1992) [57 23 Brokers and Dealers, Release No. 34–11497 (Jun. 26, See Press Release No. 2008–110 (Jun. 11, 2008). FR 48970]. 1975) [40 FR 29795]. As described in more detail below, an NRSRO is an 33 General Instruction I.B.2 of Form F–3. See 26 See Adoption of Integrated Disclosure System, organization that issues ratings that assess the Adoption of Foreign Issuer Integrated Disclosure Release No. 33–6383 (Mar. 3, 1982) [47 FR 11380] creditworthiness of an obligor itself or with regard System, Release No. 33–6437 (Nov. 19, 1982) [47 FR (‘‘Integrated Disclosure Release’’). to specific securities or money market instruments, 54764]. In 1994, the Commission expanded the 27 has been in existence as a credit rating agency for 15 U.S.C. 77g. eligibility requirement to delete references to debt 28 at least three years, and meets certain other criteria. 15 U.S.C. 77k. or preferred securities and provide Form F–3 The term is defined in section 3(a)(62) of the 29 17 CFR 239.13 and the Integrated Disclosure eligibility for other investment grade securities Exchange Act (15 U.S.C. 78c(a)(62)). A credit rating Release. (such as foreign currency or other cash settled agency must apply with the Commission to register 30 See General Instruction I.B.2 of Form S–3. A derivative securities). See Simplification of as an NRSRO, and currently there are nine non-convertible security is an ‘‘investment grade Registration of Reporting Requirements for Foreign registered NRSROs. security’’ for purposes of form eligibility if at the Companies, Release No. 33–7053A (May 12, 1994) 24 See President’s Working Group on Financial time of sale, at least one NRSRO has rated the [59 FR 25810]. Markets, Policy Statement on Financial Market security in one of its generic rating categories which 34 This release addresses rules and forms filed by Developments (March 2008), available at signifies investment grade, typically one of the four issuers under the Securities Act and Exchange Act. www.ustreas.gov; The Report of the Financial highest rating categories. See id. In separate releases, the Commission is proposing Stability Forum on Enhancing Market and 31 Pursuant to the recently adopted revisions to to address other rules and forms that rely on an Institutional Resilience (April 2008), available at Form S–3 and Form F–3, issuers also may conduct investment grade ratings component. www.fsforum.org; Technical Committee of the primary securities offerings on these forms without 35 See General Instruction I. of Form F–9. International Organization of Securities regard to the size of their public float or the rating 36 See General Instruction B.1 of Form S–4 and Commissions, Consultation Report: The Role of of debt securities being offered, so long as they General Instruction B.1(a) of Form F–4. Credit Rating Agencies in Structured Finance satisfy the other eligibility conditions of the 37 Markets (March 2008), page 9, available at respective forms, have a class of common equity See Note E and Item 13 of Schedule 14A. www.iosco.org. securities listed and registered on a national 38 General Instruction I.B.5 of Form S–3. 25 See Disclosure of Ratings in Registration securities exchange, and the issuers do not sell 39 17 CFR 230.415(a)(1)(vii). See Shelf Statements, Release No. 33–6336 (Aug. 6, 1981) [46 more than the equivalent of one-third of their Registration, Release No. 33–6499 (Nov. 17, 1983) FR 42024]. The Commission first began using public float in primary offerings over any period of [48 FR 5289]. ratings by an NRSRO in 1975 for purposes of 12 calendar months. See Revisions to Eligibility 40 15 U.S.C. 78c(a)(41).

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rating organization.’’ 41 In 1992, the to consider the appropriate regulatory need not be investment grade Commission expanded the Form S–3 approach for rating agencies.47 securities.53 eligibility provisions to provide for the In 2003, the Commission issued a II. Proposed Amendments registration of investment grade asset- concept release requesting comment on backed securities offerings, regardless of whether it should cease using the A. Shelf Registration for Issuers of the issuer’s reporting history or public NRSRO designation and, as an Asset-Backed Securities 42 float. In addition, if they are related to alternative to the ratings criteria, 1. Form S–3 Eligibility for Offerings of investment grade rated securities, provide for Form S–3 eligibility where Asset-Backed Securities certain registration statements and other investor sophistication or large size Under the existing requirements, an requirements afford foreign private 48 denomination criteria are met. The offering of asset-backed securities, or issuers with an option to comply with Commission also requested comment on less extensive U.S. GAAP reconciliation ABS, as defined in Item 1101 of alternatives to Form S–3 ratings reliance 54 requirements.43 Regulation AB, may be eligible for with regard to offerings of asset-backed registration on Form S–3 and may At various times since the adoption of securities. In the 2004 adopting release therefore be offered on a delayed or these form requirements and rules, 49 for Regulation AB, while retaining the continuous basis 55 if they are rated however, the Commission has reviewed eligibility provision for investment investment grade by an NRSRO and and reconsidered its permissive views grade rated asset-backed securities, the meet certain other conditions.56 The toward the disclosure of ratings in Commission noted that it was engaged Commission now proposes to amend filings and the reliance on ratings in the in a broad review of the role of credit this requirement in Form S–3 for ABS Commission’s form requirements. For rating agencies in the securities markets, to replace the component that relies on example, in 1994, the Commission including whether security ratings investment grade ratings with an published a proposing release that should continue to be used for alternate provision. would have mandated disclosure in regulatory purposes under the securities In the 2004 proposing release for Securities Act prospectuses of a rating laws.50 The release made note of the Regulation AB, the Commission given by an NRSRO whenever a rating 2003 concept release and the comments requested comment on whether the with respect to the securities being received on possible alternatives to investment grade reliance component of offered is ‘‘obtained by or on behalf of using the investment grade requirement the Form S–3 eligibility requirements an issuer.’’ 44 The proposals would have for determining Form S–3 eligibility for for ABS offerings was appropriate and required disclosure of specified asset-backed securities. whether alternative criteria such as information with respect to security investor sophistication, minimum ratings, whether or not disclosed In 2005, the Commission adopted rules and form amendments to modify denomination, or experience criteria voluntarily or mandated by the 57 the framework for the registration, were more appropriate. The proposed new rules. In addition, the Commission received four comment 1994 Ratings Release sought comment communications, and offerings processes, relaxing restrictions and letters in response that provided on various areas relating to the 51 suggestions on possible alternatives to disclosure of security ratings. requirements on the largest issuers. These large issuers, defined as well- the investment grade requirement for The 1994 Ratings Release also Form S–3 eligibility purposes for ABS known seasoned issuers, include issuers 58 proposed to require the disclosure on a that have issued for cash more than an offerings. One commenter Form 8–K current report of any material aggregate of $1 billion in non- 53 change in the security rating assigned to convertible securities, other than See Section II.A.1.b of Release No. 33–8591. the registrant’s securities by an 54 17 CFR 229.1101. common equity, through registered 55 NRSRO.45 Later, in 2002, the General Instruction I.B.5 of Form S–3. The primary offerings over the prior three Commission expanded the use of Form S–3 to all Commission again proposed to require years.52 In adopting this definition, the types of asset-backed securities in 1992. See an issuer to file a Form 8–K current Simplification of Registration Procedures for Commission did not rely on investment Primary Securities Offerings, Release No. 33–6964 report when it received a notice or other grade ratings, noting in the adopting communication from any rating agency (Oct. 22, 1992) [57 FR 48970]. release that the securities included in 56 As discussed below, two additional conditions regarding, for example, a change or also apply in order for ABS offered for cash to be 46 the calculation for determining whether withdrawal of a particular rating. The the $1 billion threshold has been met Form S–3 eligible: (1) delinquent assets do not Commission did not adopt this constitute 20% or more, as measured by dollar proposal, noting that it would continue volume, of the asset pool as of the measurement 47 See Additional Form 8–K Filing Requirements date; and (2) with respect to securities that are and Acceleration of Filing Date, Release No. 33– backed by leases other than motor vehicle leases, 41 See discussion of mortgage related securities in 8400 (Mar. 16, 2004) [69 FR 15594], amended by the portion of the securitized pool balance Section II.A.2. below. Release No. 33–8400A (Aug. 4, 2004) [69 FR 48370]. attributable to the residual value of the physical 42 See Simplification of Registration Procedures 48 See Rating Agencies and the Use of Credit property underlying the leases, as determined in for Primary Securities Offerings, Release No. 33– Ratings under the Federal Securities Laws, Release accordance with the transaction agreements for the securities, does not constitute 20% or more, as 6964 (Oct. 22, 1992) [57 FR 32461]. No. 33–8236 (Jun. 4, 2003) [68 FR 35258]. measured by dollar volume, of the securitized pool 43 Comments on the concept release are available at: See Exchange Act Forms 20–F (17 CFR balance as of the measurement date. General http://www.sec.gov/rules/concept/s71203.shtml. As 249.220f) and 40–F (17 CFR 249.240f), Securities Instruction I.B.5(a) of Form S–3. Act Forms F–1 (17 CFR 239.31), F–3 (17 CFR discussed above, recent events have highlighted the 57 need to revisit our reliance on NRSRO ratings in the See Section III.A.3.c of Asset-Backed Securities, 239.33), and F–4 (17 CFR 239.34), and Form F–9 Release No. 33–8419 (May 3, 2004) [69 FR 16650]. context of these developments. See also the (17 CFR 239.39) and Rule 502(b)(2)(i)(C) of In the 2003 concept release where the Commission extensive discussion of market developments in Regulation D (17 CFR 230.502(b)(2)(i)(C)). requested comment on alternatives to the ratings 44 Release No. 34–57967. See Disclosure of Security Ratings, Release No. reliance requirement in Form S–3 for corporate 49 33–7086 (Aug. 31, 1994) [59 FR 46304] (the ‘‘1994 17 CFR 229.1100 through 1123. debt, the Commission requested comment on Ratings Release’’). A concept release on this subject 50 See Section III.A.3.c of Asset-Backed Securities, alternatives to ratings reliance with respect to ABS was published in Disclosure of Security Ratings, Release No. 33–8518 (Dec. 22, 2004) [70 FR 1506, offerings. No comment letters submitted in response Release No. 33–5882 (Nov. 3, 1977) [42 FR 58414]. 1524]. to the concept release provided specific suggestions 45 See the 1994 Ratings Release. 51 See Securities Offering Reform, Release No. 33– on alternatives for ABS offerings. See Release No. 46 See Additional Form 8–K Disclosure 8591 (July 19, 2005) [70 FR 44722]. 33–8236. Requirements and Acceleration of Filing Date, 52 See definition of well-known seasoned issuer 58 See letters commenting on Release No. 33–8419 Release No. 33–8106 (Jun. 17, 2002) [67 FR 42914]. in Rule 405. 17 CFR 230.405. from the American Bar Association (ABA), Kutak

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recommended that the Commission that initial sales of classes of securities those securities are ‘‘mortgage related replace the investment grade ratings be made only to qualified institutional securities, including such securities as requirement with a sponsor 59 buyers. The eligibility requirement, as mortgage-backed debt and mortgage experience requirement (e.g., Exchange proposed to be revised, would retain the participation or pass through Act reporting).60 Another commenter other provisions relating to delinquency certificates.’’ 71 By specifically referring suggested that the Commission either (1) concentration and residual value to mortgage related securities, Rule 415 eliminate the use of the ratings as a percentages for offerings of securities has permitted such securities to be bright line test for the Form S–3 backed by leases other than motor offered on a delayed basis, even if the eligibility criteria, thereby eliminating vehicle leases.67 Thus, as proposed, offering cannot be registered on the the incentive to shop for ratings simply asset-backed securities offered for cash Form S–3 short form registration to satisfy a regulatory requirement; or may be Form S–3 eligible provided: statement because it does not meet the (2) reflective of developing market • Initial and subsequent resales are eligibility requirements of Form S–3. practice, require an investment grade made in minimum denominations of Currently, the term ‘‘mortgage related rating which is the lower of two $250,000; securities’’ is defined by Section 3(a)(41) ratings.61 • Initial sales are made only to of the Exchange Act 72 as, among other Two commenters recommended that qualified institutional buyers (as things, ‘‘a security that is rated in one the Commission adopt a minimum defined in Rule 144A(a)(1)); of the two highest rating categories by denomination requirement (e.g., • Delinquent assets do not constitute at least one nationally recognized $100,000 or $250,000) that would 20% or more, as measured by dollar statistical rating organization.’’ Given determine form eligibility, limiting volume, of the asset pool as of the that the term mortgage related securities investment in the offering to investors measurement date; and also depends on a ratings component, it who had such capital.62 One of these • With respect to securities that are would be a logical extension of our commenters recommended that the backed by leases other than motor amendments here to amend the Rule Commission make short-form vehicle leases, the portion of the 415 reference to a mortgage related registration available to otherwise securitized pool balance attributable to security to add that the sale of such eligible non-investment grade rated or the residual value of the physical security must be in compliance with the unrated classes of asset-backed property underlying the leases, as additional requirements that initial sales securities provided that sales are made determined in accordance with the are made to qualified institutional in minimum denominations and initial transaction agreements for the buyers and initial and subsequent sales sales of classes of securities are made securities, does not constitute 20% or are made in certain minimum only to qualified institutional buyers (as more, as measured by dollar volume, of denominations. Given that reliance on defined in Securities Act Rule the securitized pool balance as of the security ratings could just as easily 63 144A(a)(1)) and institutional measurement date.68 impact an investor’s investment accredited investors (as defined in Rule This proposed amendment would 64 65 decision in mortgage-backed securities 501 of Regulation D). The limit use of a short-form shelf as it could for other asset-backed commenter reasoned that such registration statement for asset-backed securities,73 we believe it is appropriate restrictions should ensure that securities securities to offerings to large that mortgage-backed securities be are sold and subsequently resold only to sophisticated and experienced investors treated the same as all asset-backed investors who are capable of without, we believe, causing undue securities.74 undertaking their own analysis of the detriment to the liquidity of the asset- Therefore, under the proposed merits and risks of their investment.66 backed securities market.69 In keeping revision to Rule 415, mortgage-backed In light of our effort to reduce with that purpose and given the unique securities, having the same regulatory reliance on security ratings, nature and structure of asset-backed characteristics as mortgage related the Commission has revisited the securities, we are proposing at this time securities under the Section 3(a)(41) comments in 2004 and now proposes to only to include qualified institutional definition, regardless of the security replace the investment grade component buyers rather than also including in the Form S–3 eligibility requirement institutional accredited investors as 71 for ABS offerings with a minimum 17 CFR 230.415(a)(vii). suggested by the commenter in 2004. 72 15 U.S.C. 78c(a)(41). Section 3(a)(41) was denomination requirement for initial added by the Secondary Mortgage Market and subsequent sales and a requirement 2. Mortgage Related Securities and Enhancement Act of 1984 (SMMEA) (Pub. L. 98– Securities Act Rule 415 440–98 Stat. 1690). In 1984, contemporaneous with the enactment of SMMEA, the Commission Rock, LLP (Kutak), State Street Global Advisors In addition to being shelf eligible by (State Street), and Moody’s Investor Service amended Rule 415, which is known as the shelf (Moody’s). The public comments received are meeting the requirements of Form S–3, rule, to allow SMMEA-eligible mortgage related available for inspection in our Public Reference a particular subset of ABS may also be securities to use the shelf offering process. See Shelf Room at 100 F Street, NE., Washington, DC 20549 shelf eligible by meeting the Registration, Release No. 33–6499 (Nov. 17, 1983) [48 FR 5289]. in File No. S7–21–04, or may be viewed at requirements in Securities Act Rule http://www.sec.gov/rules/proposed/s72104.shtml. 73 The President’s Working Group has noted that 70 59 While ‘‘sponsor’’ is a commonly used term for 415, which enumerates the securities one of the principal underlying causes of the the entity that initiates the asset-backed securities which are permitted to be offered on a current global market turmoil relating to the transaction, the terms ‘‘seller’’ or ‘‘originator’’ also continuous or delayed basis. Among mortgage-backed securities industry was the credit are often used in the market. In some instances the rating agencies’ assessments of subprime residential sponsor is not the originator of the financial assets mortgage-backed securities and other complex 67 See proposed General Instruction I.B.5(a)(iii) but has purchased them in the secondary market. structured credit products that held residential and (iv) of Form S–3. See footnote 46 of Release No. 33–8518. mortgage-backed and other asset-backed securities. 68 See proposed General Instruction I.B.5(a) of 60 See letter from State Street. See Section I of the Policy Statement on Financial Form S–3. Market Developments. See n. 24 above. 61 See letter from Moody’s. 69 We are aware of two types of asset-backed 74 Indeed, mortgage-backed securities are merely 62 See letters from ABA and Kutak. offerings that may not meet these new criteria, unit a type of, or subset of, asset-backed securities. We 63 17 CFR 230.144A(a)(1). repackaging and securitization of insurance funding believe that there have not been any recent offerings 64 17 CFR 230.501. agreements but believe that they can be effectively that have relied on Rule 415(a)(vii) for shelf 65 See letter from ABA. registered using Form S–1 instead of Form S–3. eligibility rather than through meeting the 66 Id. 70 17 CFR 230.415. requirements of Form S–3.

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rating, could be offered on a delayed accredited investors, or other groups of • Should Rule 415 be amended as basis provided that: sophisticated investors? What would be proposed? In the alternative, should the • Initial sales and any resales of the the impact on liquidity in the secondary reference to mortgage related securities securities are made in minimum market if resales of securities that were in Rule 415 be deleted (i.e., so that denominations of $250,000; 75 and originally offered and sold off of the mortgage-backed securities could only • initial sales of the securities are Form S–3 were so limited? What would be offered on a delayed basis if eligible made only to qualified institutional be the impact on the cost of capital for for registration on Form S–3)? Are there buyers (as defined in Rule 144A(a)(1)). ABS sponsors if Form S–3 registration securities that are currently offered Request for Comment required that initial sales or resales were pursuant to Rule 415(a)(1)(vii) that do limited to qualified institutional buyers not meet the current requirements of • Is the proposed amendment to the or other groups of sophisticated Form S–3 and would not meet the Form S–3 eligibility requirement for investors? requirements of the proposal? asset-backed securities appropriate? Is • Would a better standard than there a better alternative to the qualified institutional buyer be any B. Primary Offerings of Non-convertible investment grade ratings component? If purchaser that owns and invests on a Securities so, what is that alternative and why is discretionary basis not less than 1. Form S–3 and Form F–3 it better? $25,000,000? Would a threshold like • Is the proposed amendment this that does not limit the purchasers Forms S–3 and F–3 are the ‘‘short requiring that initial and subsequent to institutions be appropriate, forms’’ used by eligible issuers to sales be made in a minimum particularly in light of recent market register securities offerings under the denomination appropriate? Should the events? Should there be other Securities Act. These forms allow denomination level be higher or lower thresholds for particular investors, such eligible issuers to rely on reports they (e.g., $400,000 or $100,000)? • as owning and investing on a have filed under the Exchange Act to We understand that non-convertible discretionary basis not less than securities may typically be held in book satisfy many of the disclosure $50,000,000 for government or political requirements under the Securities Act. entry form with a depository. Are there subdivisions, agencies or any system issues or processes at the Form S–3 eligibility for primary instrumentalities of a government? offerings also enables form eligible depository that may affect the ability to Should we use Qualified Investor as limit transferability based on a issuers to conduct primary offerings ‘‘off defined in Exchange Act Section the shelf’’ under Securities Act Rule minimum denomination? If yes, what 3(a)(54) 76 rather than qualified are those issues or processes and how 415. Rule 415 provides considerable institutional buyer? flexibility in accessing the public should the rule provisions be revised to • We note that there are two types of prohibit subsequent transfers below the securities markets in response to ABS offerings that may not meet this changes in the market and other factors. minimum denominations? new criteria, unit repackagings, and • Should there be any restriction on Issuers that are eligible to register these securitizations of insurance funding permitting purchasers from allocating primary ‘‘shelf’’ offerings under Rule agreements. Can the offer and sale of securities in denominations lower than 415 are permitted to register securities these securities be effectively registered $250,000 if the purchasers are acquiring offerings prior to planning any specific on Form S–1? We note that these the nonconvertible securities for more offering and, once the registration securities are typically listed on a than one account? For example, if an statement is effective, offer securities in national securities exchange. Should we investment advisor acquires the one or more tranches without waiting instead add an alternative eligibility securities for more than one qualified for further Commission action. To be requirement that would provide institutional buyer, should it be allowed eligible to use Form S–3 or F–3, an eligibility to use Form S–3 for securities to allocate securities to the accounts of issuer must meet the form’s eligibility listed on a national securities exchange? the qualified institutional buyers in requirements as to registrants, which • Should we instead assess Form S– denominations lower than $250,000? generally pertain to reporting history • Should Form S–3 limit initial sales 3 and shelf eligibility in a manner under the Exchange Act,77 and at least of eligible asset-backed securities to similar to what we are proposing for one of the form’s transaction qualified institutional buyers? Should corporate debt that is discussed in the requirements.78 One such transaction the requirement include sales to an next section? If so, what would be the requirement permits registrants to additional group of investors (e.g., appropriate amount of required register primary offerings of non- institutional accredited investors)? If so, issuance? Should the issuance amount convertible securities if they are rated why? Should subsequent sales be be measured only for the same sponsor, investment grade by at least one same asset class, and same structure? limited as well? Would it be appropriate NRSRO.79 Instruction I.B.2 provides Should it matter if the assets are to eliminate the minimum that a security is ‘‘investment grade’’ if, purchased by the sponsor rather than denomination requirements after some at the time of sale, at least one NRSRO originated by the sponsor or an affiliate? period of time, such as after six months has rated the security in one of its • Is the proposed revision to or one year from the date of issuance? generic rating categories, typically the Securities Act Rule 415 appropriate? Is Are there particular kinds of ABS four highest, which signifies investment there any reason why mortgage related offerings that are sold to investors other grade. securities should be treated differently than qualified institutional buyers? The Form S–3 investment grade • What would be the impact on from other asset-backed securities for purposes of delayed offerings? requirement was originally proposed by liquidity in the ABS secondary market • if Form S–3 registration required that Are there SMMEA eligible loans 77 initial sales be limited to qualified that could not be securitized in See General Instruction I.A to Forms S–3 and circumstances meeting the proposed F–3. institutional buyers, institutional 78 See General Instruction I.B to Forms S–3 and threshold for S–3 eligibility? F–3. 75 Denominations of any amounts above $250,000 79 See General Instruction I.B.2 to Forms S–3 and would meet this requirement. 76 15 U.S.C. 78c(a)(54). F–3.

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the Commission in a 1982 release.80 We are proposing to revise the form in registered primary offerings for Prior to adopting Form S–3, the criteria using the same method and cash—they may not include registered Commission had previously provided a threshold by which the Commission exchange offers; 89 and short form registration statement on defined an issuer of non-convertible • parent company issuers only may Form S–9, which permitted the securities, other than common equity, include in their calculation the registration of issuances of certain high that does not meet the public equity principal amount of their full and quality debt securities.81 The criteria for float test as a ‘‘well-known seasoned unconditional guarantees, within the use of Form S–9 related primarily to the issuer.’’ 86 Similar to our approach with meaning of Rule 3–10 of Regulation S– quality of the issuer.82 While these well-known seasoned issuers, we X,90 of non-convertible securities, other eligibility criteria delineated the type of believe that having issued $1 billion of than common equity, of their majority- issuer of high quality debt for which registered non-convertible securities owned subsidiaries issued in registered Form S–9 was intended, the over the prior three years would lead to primary offerings for cash during the Commission believed that certain of its a wide following in the marketplace. three-year period. requirements may have overly restricted These issuers generally have their The aggregate principal amount of non- the availability of the form.83 The Exchange Act filings broadly followed convertible securities that may be Commission believed that security and scrutinized by investors and the counted toward the $1 billion issuance ratings were a more appropriate markets.87 The Commission intends for threshold may have been issued in any standard on which to base Form S–3 the number of issuers eligible under the registered primary offering for cash, on eligibility than specified quality of the proposed criteria to register primary any form (other than Form S–4 or Form issuer criteria, citing letters from offerings of non-convertible securities F–4). Non-convertible securities need commenters indicating that short form on Forms S–3 and F–3 to not be not be investment grade securities to be prospectuses are appropriate for significantly reduced, or to differ included in the calculation. In investment grade debt because such significantly from, the number of those calculating the $1 billion amount, securities are generally purchased on eligible under the current form issuers generally may include the the basis of interest rates and security requirements.88 Using the $1 billion principal amount of any debt and the ratings.84 threshold, we preliminarily believe that greater of liquidation preference or par Today we are proposing to revise the for issuances that have occurred thus far value of any non-convertible preferred transaction eligibility criteria for this year, the proposed change would stock that were issued in primary registering primary offerings of non- result in approximately six issuers filing registered offerings for cash.91 convertible securities on Forms S–3 and on Form S–1 instead of on a short-form F–3. As proposed, the instructions to registration statement. This approach is Request for Comment these forms would no longer refer to designed to provide assurance that • The recent turmoil in the credit security ratings by an NRSRO as a eligible issuers are followed by the markets, particularly in the structured transaction requirement to permit markets such that it is appropriate to finance market, strongly suggests that issuers to register primary offerings of allow forward incorporation by there has been undue reliance on non-convertible securities for cash. reference and delayed offering. We security ratings and that the ratings for Instead, these forms would be available realize that it is now possible that some many issuers did not reflect the risks of to register primary offerings of non- offerings of non-investment grade the investment. We are proposing convertible securities if the issuer has securities, such as high-yield bonds thresholds on the amount of issuance in issued (as of a date within 60 days prior (also known as ‘‘junk bonds’’) may be order to move away from reliance on to the filing of the registration registered for sale on Form S–3. security ratings in the Commission’s statement) for cash more than $1 billion These issuers also would have to rules. Does the proposed eligibility in non-convertible securities, other than satisfy the other conditions of the form based on the amount of prior registered common equity, through registered eligibility requirement. In determining non-convertible securities issued serve primary offerings over the prior three compliance with this threshold: as an adequate replacement for the • years.85 Issuers may aggregate the amount of investment grade eligibility condition? non-convertible securities, other than Would the cumulative offering amount 80 See Reproposal of Comprehensive Revision to common equity, issued in registered System for Registration of Securities Offerings, primary offerings during the prior three 89 Issuers may not include the principal amount Release No. 33–6331 (Aug. 6, 1981) [46 FR 41902] years; of securities that were offered in registered (‘‘the S–3 Proposing Release’’). • issuers may include only such non- exchange offers by the issuer when determining 81 Form S–9 was rescinded on December 20, 1976, convertible securities that were issued compliance with the $1 billion non-convertible because it was being used by only a very small securities threshold. A substantial portion of these number of registrants. The Commission believed the offerings involve registered exchange offers of lack of usage was due in part to interest rate Instruction 3 to the signature block of Forms S–3 substantially identical securities for securities that increases which made it difficult for many and F–3. were sold in private offerings. In those cases, the registrants to meet the minimum fixed charges 86 See Securities Offering Reform, Release No. 33– original sale to investors in the private offering, coverage standards required by the form. Adoption 8591 (Jul. 19, 2005) [70 FR 44722]. Rule 405 under relying upon, for example, the exemptions of of Amendments to Registration Forms and Guide the Securities Act defines a ‘‘well-known seasoned Securities Act Section 4(2) and Rule 144A, is not and Rescission of Registration Form, Release No. issuer’’ as an issuer that meets the registrant registered and is not carried out under the 33–5791 (Dec. 20, 1976) [41 FR 56301]. requirements of Form S–3 or F–3, and either has a Securities Act’s disclosure or liability standards. 82 The criteria included net income during each worldwide market value of its outstanding voting Moreover, in the subsequent registered exchange of the registrant’s last five fiscal years, no defaults and non-voting common equity held by non- offers purchasers may not be able, in certain cases, in the payment of principal, interest, or sinking affiliates of $700 million or more, or has issued in to avail themselves effectively of the remedies funds on debt or of rental payments for leases, and the last three years, in registered offerings, at least otherwise available to purchasers in registered various fixed charge coverages. The use of fixed $1 billion aggregate principal amount of non- offerings for cash. charges coverage ratios, typically 1.5, was common convertible securities in primary offerings for cash. 90 17 CFR 210.3–10. in state statutes defining suitable debt investments 17 CFR 230.405. 91 In determining the dollar amount of securities for banks and other fiduciaries. 87 See Securities Offering Reform, Release No. 33– that have been registered during the preceding three 83 See the S–3 Proposing Release. 8501 (Nov. 3, 2004) [69 FR 67392]. years, issuers should use the same calculation that 84 See the Integrated Disclosure Release. 88 We preliminarily anticipate that under the they use to determine the dollar amount of 85 See proposed General Instruction I.B.2 of proposed threshold some additional high yield debt securities they are registering for purposes of Forms S–3 and F–3. We are also proposing to delete issuers would be eligible to use the Forms. determining fees under Rule 457. 17 CFR 230.457.

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for the most recent three-year period non-convertible securities, other than in Item 17.92 Foreign private issuers of reflect market following? Since most of common equity, outstanding rather than investment grade rated securities are the problems in the market have issued over the prior three years? permitted to provide the less-extensive occurred with respect to asset-backed • Is there a better alternative by U.S. GAAP reconciliation disclosure securities, should we retain the current which Form S–3 eligibility for non- pursuant to Item 17 in registration eligibility requirement for investment convertible securities could be required? statements and annual reports. grade non-convertible securities? • Would the specific issuers eligible By what metrics could one measure the The definition of ‘‘investment grade’’ under the investment grade condition be market following for debt issuers? Is is the same as in the Form S–3 different from the issuers eligible under there an alternative definition of eligibility requirements. A security is the proposal? Would certain investors, ‘‘investment grade debt securities’’ that ‘‘investment grade’’ if, at the time of such as pension funds, be impacted if does not rely on NRSRO ratings and sale, at least one NRSRO has rated it in investment grade securities could not be adequately meets the objective of one of its generic rating categories that offered on Form S–3? relating short-form registration to the signifies investment grade. Also, a • If the Commission adopts a Form existence of widespread following in the foreign private issuer conducting a S–3 eligibility requirement designed to marketplace? private placement of investment grade reflect the market following of a debt • Should there be a different standard securities under Regulation D can issuer, should the condition be sensitive for foreign private issuers eligible to use provide Item 17 information to the to the number of debt holders? Is it extent the issuer is able to do so in a Form F–3? If so, explain why and what 93 reasonable to expect that analysts would would be a more appropriate criteria. registration statement. be more likely to follow issuers with a • Does the $1 billion threshold of The Commission recently proposed to larger number of debt holders insofar as require foreign private issuers offering such holders are potential customers of offering in the prior three years present any issues that are unique to foreign investment grade securities, among the analysts’ products? If so, how others, to file financial statements that should we determine the number of private issuers, especially those that may undertake U.S. registered public comply with the more complete Item 18 holders? level of reconciliation, thus eliminating • Should there be an eligibility offerings as only a portion of their overall plan of financing, and how the option of providing Item 17 requirement based on a minimum financial disclosure.94 The Commission number of holders of record of non- might these problems be addressed? Would it be appropriate to provide a reasoned that ‘‘a reconciliation that convertible securities offered for cash? If includes footnote disclosures required so, should this number be 300 or 500, longer time period for measurement, or by U.S. GAAP and Regulation S–X 95 by analogy to our registration and to include public offerings of securities can provide important additional deregistration rules relating to equity for cash outside the United States? information.’’ 96 The Commission securities? Would linking the eligibility 2. U.S. GAAP Reconciliation specifically requested comment, requirement to the number of holders of Requirements record help to assure market following? however, on whether foreign private • issuers should continue to be permitted Is the cumulative offering amount The Commission’s rules relating to for the most recent three-year period the to provide Item 17 financial disclosure U.S. GAAP reconciliation requirements for offerings of, and periodic reporting appropriate threshold at which to for foreign filers also rely on ratings. differentiate issuers? Should the relating to, investment grade Forms F–1, F–3, and F–4 under the securities.97 We now also propose to threshold be higher (e.g., $1.25 billion) Securities Act permit foreign private or lower (e.g., $800 million), and, if so, remove from these requirements the issuers registering offerings of components relying on investment at what level should it be set? Are there investment grade securities to provide any transactions that currently meet the grade ratings and instead permit foreign financial information in accordance private issuers to comply with the less requirements of current General with Item 17 of Exchange Act Form 20– Instruction I.B.2. that would not be extensive U.S. GAAP reconciliation F. Item 17 requires foreign private requirements under Item 17 in a eligible to use the form under the issuers to reconcile their financial proposed revision? Are there any registration statement or private offering statements and schedules to U.S. GAAP document if the issuer would meet the transactions that do not meet the current if they are prepared in accordance with Form S–3 or Form F–3 eligibility proposed Form F–3 eligibility a basis of accounting other than U.S. requirements for investment grade requirements (i.e., if the issuer has GAAP or International Financial securities but now would be eligible issued (as of a date within 60 days prior Reporting Standards as issued by the under the proposed revision that should to the filing of the registration International Accounting Standards not be eligible? If practicable, provide statement) for cash more than $1 billion Board. This reconciliation need only information on the frequency such in non-convertible securities, other than include a narrative discussion of offerings are made. common equity, through registered • Would the proposed threshold reconciling differences, a reconciliation of net income for each year and any increase or decrease the number of 92 See also Foreign Issuer Reporting issuers eligible to use Forms S–3 and interim periods presented, a Enhancements, Release No. 33–8900 (Feb. 29, 2008) reconciliation of major balance sheet [73 FR 13404] at Section III.A. F–3 under the current investment grade 93 criteria? Is there a reason that this Form captions for each year and any interim Rule 502 requires a foreign private issuer to periods, and a reconciliation of cash provide the same kind of information the issuer S–3 eligibility requirement should not would be required to include in a registration mirror the debt only well-known flows for each year and any interim statement on a form the issuer would be eligible to seasoned issuer definition? periods. Item 18 of Form 20–F, by use if any sales are made to investors who are not • Should the measurement time contrast, requires that a foreign private accredited investors. See 17 CFR 230.502(b)(2)(i)(C). issuer provide all of the information 94 See Release No. 33–8900. period for $1 billion of issuance be 95 17 CFR 210.1–01 et seq. longer than three years (e.g., four or five required by U.S. GAAP and Regulation 96 S–X, in addition to the reconciling Release No. 33–8900 at Section III.A. years)? If so, why? Would it be more 97 See Request for Comment No. 23 of Release No. appropriate for the threshold to include information for the line items specified 33–8900.

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primary offerings over the prior three securities for cash in primary offerings 4 based on Form S–3 or F–3 eligibility. years). registered under the Securities Act. That is, a registrant will be eligible to The proposed revision would not use Forms S–4 and F–4 to register non- Request for Comment change a Canadian issuer’s ability to use convertible debt or preferred securities • If the Commission does not adopt Form F–9 to register debt or preferred if the issuer has issued (as of a date the proposal in Release No. 33–8900 securities meeting the requirements of within 60 days prior to the filing of the that would eliminate the ability of a current General Instruction I.A if the registration statement) for cash more foreign private issuer to comply with securities are rated ‘‘investment grade’’ than $1 billion in non-convertible the less extensive U.S. GAAP by at least one Approved Rating securities, other than common equity, reconciliation requirements under Item Organization (as defined in National through registered primary offerings 17 for filings with respect to investment Policy Statement No. 45 of the Canadian over the prior three years. Similarly, we grade securities, should the Commission Securities Administrators). While the propose to amend Schedule 14A to refer revise the requirements as proposed to proposal would still permit Canadian simply to the requirements of General permit a foreign private issuer to issuers to register certain securities Instruction I.B.2. of Form S–3, rather comply with the less extensive U.S. rated investment grade by an Approved than to ‘‘investment grade securities.’’ GAAP reconciliation requirements Rating Organization, the Commission under Item 17 if the issuer has met the believes this approach is appropriate b. Securities Act Rules 138, 139 and 168 proposed Form F–3 eligibility criteria and consistent with the Commission’s The reliance on security ratings is also for debt issuers? Are there different intent in adopting the evident in other Securities Act rules. criteria that should be used? multijurisdictional disclosure system to Rules 138, 139, and 168 under the Securities Act provide that certain 3. Form F–9 look to form eligibility requirements under Canadian rules.101 To the extent communications are deemed not to be Form F–9 allows certain Canadian that the Canadian securities regulators an offer for sale or offer to sell a security issuers to register investment grade debt revise similar requirements to remove within the meaning of Sections or investment grade preferred securities references to investment grade ratings, 2(a)(10) 104 and 5(c) 105 of the Securities that are offered for cash or in connection we may revise Form F–9 to mirror those Act when the communications relate to with an exchange offer, and which are revisions. an offering of non-convertible either non-convertible or not convertible investment grade securities. These Request for Comment for a period of at least one year from the communications include the following: date of issuance.98 Under the Form’s • The Commission requests comment • Under Securities Act Rule 138, a requirements, a security is rated on whether the proposed threshold for broker’s or dealer’s publication about ‘‘investment grade’’ if it has been rated issuances of debt or preferred securities securities of a foreign private issuer that investment grade by at least one in the three years immediately meets F–3 eligibility requirements NRSRO, or at least one Approved Rating preceding the filing of the registration (other than the reporting history Organization (as defined in National statement is appropriate. Should the requirements) and is issuing non- Policy Statement No. 45 of the Canadian Form F–9 eligibility requirements convertible investment grade securities; Securities Administrator).99 This continue to permit the use of ratings by • Under Securities Act Rule 139, a eligibility requirement was adopted as Approved Rating Organizations? Is a broker’s or dealer’s publication or part of a 1993 revision to the different threshold or measurement distribution of a research report about multijurisdictional disclosure system period more appropriate for Form F–9? an issuer or its securities where the originally adopted by the Commission 4. NRSRO Ratings Reliance in Other issuer meets Form S–3 or F–3 registrant in 1991 in coordination with the requirements and is or will be offering 100 Forms and Rules Canadian Securities Administrators. investment grade securities pursuant to Consistent with the Commission’s a. Forms S–4 and F–4 and Schedule 14A General Instruction I.B.2 of Form S–3 or proposal to reduce reliance on security Issuing investment grade securities F–3, or where the issuer meets Form F– ratings in its rules and regulations the confers benefits that extend to other 3 eligibility requirements (other than the Commission is proposing to eliminate forms and rules as well. Forms S–4 and reporting history requirements) and is the eligibility requirement of Form F–9 F–4 allow registrants that meet the issuing non-convertible investment that allows Canadian issuers to register registrant eligibility requirements of grade securities; and certain debt and preferred securities if Form S–3 or F–3 and are offering • Under Securities Act Rule 168, the they are rated investment grade by at investment grade securities to regular release and dissemination by or least one NRSRO. As with our proposals incorporate by reference certain on behalf of an issuer of regarding Forms S–3 and F–3, this information.102 Similarly, Schedule 14A communications containing factual requirement would be replaced by a permits a registrant to incorporate by business information or forward-looking requirement that the issuer has issued in reference if the Form S–3 registrant information where the issuer meets the three years immediately preceding requirements are met and the registrant Form F–3 eligibility requirements (other the filing of the Form F–9 registration than the reporting history requirements) statement at least $1 billion of aggregate is offering investment grade 103 and is issuing non-convertible principal amount of debt or preferred securities. Because the Commission proposes to change the eligibility investment grade securities. requirements in Forms S–3 and F–3 to The Commission proposes to revise 98 Securities convertible after a period of at least Rules 138, 139, and 168 to be consistent one year may only be convertible into a security of remove references to ratings by an another class of the issuer. NRSRO, the Commission believes the with the proposed revisions to the 99 See General Instruction I.A to Form F–9. same standard should apply to the eligibility requirements in Forms S–3 100 See Amendments to the Multijurisdictional disclosure options in Forms S–4 and F– and F–3 since in order to rely on these Disclosure System for Canadian Issuers, Release No. rules the issuer must either satisfy the 33–7025 (Nov. 3, 1993) [58 FR 62028]. See also 101 public float threshold of Form S–3 or F– Multijurisdictional Disclosure and Modifications to See Release No. 33–6902, section II. the Current Registration and Reporting System for 102 See General Instruction B.1 of Forms S–4 and Canadian Issuers, Securities Act Release No. 33– Form F–4. 104 15 U.S.C. 77b(a)10. 6902 (Jun. 21, 1991) [56 FR 30036]. 103 See Note E and Item 13 of Schedule 14A. 105 15 U.S.C. 77e(c).

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3, or issue non-convertible investment securities. Item 1114 of Regulation AB assigned by credit rating agencies to grade securities as defined in the contains a similar instruction that classes of debt securities, convertible instructions to Form S–3 or F–3 as relieves an issuer from providing debt securities, and preferred stock.111 proposed to be revised. financial information when the In 1994, the Commission proposed to obligations of the credit enhancement change from permissible to mandated Request for Comment provider are backed by a foreign disclosure of security ratings.112 While • Should the Commission revise government and the enhancement the Commission did not adopt Rules 138, 139, and 168 as proposed? provider has an investment grade rating. mandatory disclosure at that time, it c. Item 1100 of Regulation AB Under both Items 1112 and 1114, to the signaled concerns relating to adequate extent that pool assets are not disclosure to the markets regarding new Under the existing Item 1100(c) of investment grade securities, information financial products and security ratings. 106 Regulation AB, if a significant required by paragraph (5) of Schedule B In the proposal we noted the dramatic 107 obligor meets the registrant of the Securities Act may be provided in proliferation in the types of securities requirements for Form S–3 or Form F– lieu of the required financial offered in the marketplace with the 3 and the pool assets relating to the information.109 development of the market for mortgage- obligor are non-convertible investment We are now proposing to revise these and asset-backed securities and other grade rated securities, then an ABS instructions so that these exceptions highly structured or derivative financial issuer’s filings may include a reference based on investment grade ratings to the obligations. In response to the growth of to the financial information of the requirements of Items 1112 and 1114 of this market, we adopted new and obligor rather than presenting the full Regulation AB would no longer apply amended rules and forms to address financial information of the obligor. The and information required by paragraph comprehensively the registration, Commission now proposes to amend (5) of Schedule B would be required in disclosure, and reporting requirements this provision of Item 1100(c) to remove all situations when the obligations of a for asset-backed securities.113 The the ratings reference and permit significant obligor are backed by the full adoption of Regulation AB in 2004 incorporation by reference of third party faith and credit of a foreign government. codified disclosure requirements and financial statements if the third party We are not aware of any benchmark assisted in providing more disclosure meets the registrant requirements of comparable to an investment grade with greater comparability for investors Form S–3 and the pool assets relating to rating here and the requirement would in the asset-backed securities markets. such third party are non-convertible not impose substantial costs or burdens While the adoption of Regulation AB securities, other than common equity, to an ABS issuer, as such information has enhanced the disclosure about asset- that were issued in a primary offering should be readily available. backed securities, it did not for cash that was registered under the Request for Comment significantly address securities ratings Securities Act. The Commission disclosure. believes that, for the most part, non- • Should the Commission revise the Because mandating disclosure of, and convertible securities that were issued instructions that rely on investment about, securities ratings might unduly in a registered offering constitute higher grade ratings in Items 1112 and 1114, as emphasize or over rely on ratings, the quality securities than securities issued proposed? In the alternative, should the Commission is at this time retaining the under an exemption under, for example, Commission instead permit issuers to current Item 10(c) policy on security Securities Act Rule 144A, and then omit all information relating to the ratings, with minor changes to subsequently exchanged for registered obligors and credit enhancement accommodate our proposed changes to securities because such securities are providers when the obligations are Rule 436(g),114 which asks registrants to subject to the Securities Act. backed by the full faith and credit of the consider, but does not require, certain Request for Comment foreign government? Are there any risks additional disclosure if a registration in doing so? Should the Commission • Should the Commission revise Item statement includes disclosure of a allow incorporation by reference of the rating. While the Commission has not 1100 of Regulation AB as proposed? If information required by paragraph (5) of not, explain why? determined to propose mandatory Schedule B of the Securities Act in lieu disclosure, we are again requesting d. Items 1112 and 1114 of Regulation of providing the information to the comment as to whether we should AB extent such information is contained in require disclosure by issuers regarding a filing with the Commission? ratings in their Securities Act Items 1112 and 1114 of Regulation AB • Are there any other provisions in require the disclosure of certain registration statements and their Regulation AB or other rules applicable Exchange Act periodic reports. The goal financial information regarding to asset-backed securities that should be of such disclosure requirements would significant obligors of an asset pool and revised? significant credit enhancement be to enhance security rating disclosure providers relating to a class of asset- C. The Commission’s Policy on Security so that investors are better able to backed securities. An instruction to Item Ratings understand the terms of a security rating 1112(b)108 provides that no financial As noted above, in 1981 the and the limitations on the rating. information on a significant obligor, Commission issued its policy on We are proposing to amend Rule however, is required if the obligations of disclosure of security ratings, 436(g) so that applicability would no the significant obligor as they relate to articulated in Item 10(c) of Regulation longer be limited to just NRSROs. the pool assets are backed by the full S–K,110 that permits, but does not faith and credit of a foreign government 111 See the Integrated Disclosure Release. See also require, issuers to disclose in Release No. 33–6336. The release indicated that a and the pool assets are investment grade Commission filings security ratings debt rating was simply ‘‘an evaluation of the likelihood that an issuer will be able to make timely 106 17 CFR 229.1100(c). 109 Paragraph 5 of Schedule B requires disclosure interest payments and will be able to repay 107 The term ‘‘significant obligor’’ is defined in of three years of the issuer’s receipts and principal.’’ Item 1101(k) of Regulation AB [17 CFR expenditures classified by purpose in such detail 112 See the 1994 Ratings Release. 229.1101(k)]. and form as the Commission prescribes. 113 Release No. 33–8518. 108 Instruction 2 to 17 CFR 229.1112(b). 110 17 CFR 229.10(c). 114 17 CFR 230.436(g).

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Securities Act Rule 436(g)115 provides which means an assessment of the disclosure? In 1994, we proposed to that a security rating assigned to a class creditworthiness of an obligor as an require disclosure: if a registrant has of debt securities, a class of convertible entity or with respect to specific obtained a security rating from an debt securities, or a class of preferred securities or money market instruments. NRSRO with respect to a class of stock is not a part of a registration Should we revise the reference to securities being registered under the statement prepared or certified by a ‘‘security rating’’ in Item 10(c) to refer Securities Act; if the rating is used in person or a report or valuation prepared to ‘‘credit rating’’ instead? Would such the offer or sale of the securities by any or certified by a person within the a revision increase or decrease the scope participant in an offering; or if the meaning of sections 7 and 11 of the of ratings covered by 10(c)? Would such registrant voluntarily discloses a Securities Act. We propose to amend a change limit the types of ratings that security rating. Should disclosure about the reference to ‘‘nationally recognized could be disclosed in a registration the security rating be required under statistical rating organization’’ in Rule statement? In particular, are there any those circumstances? If not, under what 436(g) to expand the relief to any ‘‘credit types of ratings that are issued that circumstances, if any, should disclosure rating agency’’ as defined in 15 U.S.C. would not be covered by the term be required? 78c(a)(61). By proposing to permit ‘‘credit rating,’’ particularly for ABS or • Should we require disclosure of issuers to disclose security ratings structured products that should be unsolicited ratings? It has been provided by any credit rating agency covered by Item 10(c)? Are there any suggested that such ratings may not without requiring consents, the other changes we should make to Item Commission believes this relief may 10(c) to align it with the Credit Rating reflect the level of information on the foster competition between credit rating Agency Reform Act or otherwise security that is reflected in a solicited agencies.116 modernize it? For instance, should we rating, at least in part because of a lack specifically delineate structured of access to the issuer by the unsolicited Request for Comment 118 products and asset-backed securities in credit rating agency. Is there a • Prior to 1981 the Commission the list of securities covered by the item difference between solicited and precluded disclosure regarding security since it currently only lists debt unsolicited ratings such that they ratings in registration statements under securities, convertible debt securities should be treated disparately? Should it the Securities Act. Should we revise our and preferred stock? matter if the issuer uses the unsolicited disclosure policy to prohibit disclosure • While Item 10(c) currently only rating in the offer and sale of the of security ratings in an issuer’s recommends disclosure, commenters on securities being rated? If we were to Securities Act registration statements or the 1994 Ratings Release expressed that require disclosure of unsolicited ratings, Exchange Act periodic reports? Should most issuers provide this disclosure in should there be limitations on how we simply delete Item 10(c) and provide their Securities Act filings. Do issuers many ratings or which credit rating no established disclosure policy generally provide this disclosure today? agencies ratings should be required to regarding credit ratings? Is disclosure about an issuer’s securities be disclosed? At what point would this • In 1994, the Commission noted ‘‘the rating appropriate disclosure for their create too great a burden on the issuer? extensive use of, and reliance on, Securities Act filings? Is it appropriate • In Release 34–57967, we expressed ratings, and the wide disparity in the disclosure for their periodic Exchange our concerns about ratings shopping by meaning and significance of the rating’’ Act filings? Is there any reason that this issuers and the potential for credit as important factors in its decision to disclosure should only be recommended rating agencies to use less conservative 117 propose mandated disclosure. In light rather than required? rating methodologies in order to gain • of the recent turmoil in the credit In addition to the information Item business, presumably lessening the markets, some of the factors for the 10(c) currently recommends disclosure value of the ratings. If an issuer would proposed disclosure may be no less of regarding security ratings would it be be required to provide ratings disclosure concern today than they were in 1994. valuable for investors to have additional where the issuer has obtained either a Should the Commission require disclosure of all material scope preliminary security rating or a final disclosure like the disclosure we limitations of the rating and any related security rating from a rating agency, currently recommend in Item 10(c) of designation (or other published would such disclosure enhance Regulation S–K in order to enhance evaluation) of non-credit payment risks investors’ understanding of, and issuers’ security rating disclosure so that assigned by the rating agency with therefore the value of, the ratings? investors are better able to understand respect to the security assist investors in Would it help to address our concerns the terms of a security rating and the better understanding the credit rating with ratings shopping? If you do not limitations on that rating? Would and assessing the risks of an investment believe such disclosure would be requiring disclosure of a security rating in the securities? What additional helpful, how would you suggest that we place the Commission’s ‘‘official seal of disclosure would be helpful to investors address these concerns? Should we approval’’ on security ratings such that in making these assessments? • include a disclosure requirement for it could adversely affect the quality of If we were to mandate security indications of a rating prior to a due diligence and investment analysis? rating disclosure, should disclosure be • preliminary rating? Would disclosure of Item 10(c) of Regulation S–K required for any published designation indication from a credit rating agency of currently refers to ‘‘security ratings’’ that reflects the results of any a likely or possible rating be while the 2006 Credit Rating Agency evaluation, other than a credit risk appropriate? Reform Act added the definition of evaluation, done by a credit rating ‘‘credit rating’’ to the Exchange Act, agency? Should disclosure be required 118 However, in the corollary release amending for any evaluation by a credit rating rules for NRSROs, the Commission proposed 115 17 CFR 230.436(g). agency that is communicated to the various changes to Exchange Act Rule 17g–5 [17 116 See also Section II.B.1 of the 1994 Ratings issuer, regardless of whether it is CFR 240.17g–5] that would provide the opportunity Release where the Commission requested comment published? for other credit rating agencies to use the on eliminating the consent requirement for credit • information to develop ‘‘unsolicited ratings’’ for rating agencies that are not NRSROs. If the Commission were to require certain rated asset-backed securities. See proposed 117 See Section II.A of the 1994 Proposing security rating disclosure, when should amendments to Rule 17g–5 in Release No. 34–57967 Release. an issuer be required to provide that (Jun. 16, 2008).

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• If we were to interpret that a material and timely information about ratings in our rules. However, we are security rating is ‘‘obtained’’ if: it is an issuer’s security ratings and changes proposing to revise the rule to allow for solicited by or on behalf of an issuer in those ratings? Is the information that disclosure of ratings assigned by any from a credit rating agency; or the issuer would be provided regarding a material credit rating agency, not just NRSROs. pays a credit rating agency for services change in a rating in a Form 8–K already In addition, disclosure must also note related to a rating issued by that credit provided by the credit rating agency? that the credit rating agency is not an rating agency, would the standard Would a Form 8–K be unduly NRSRO, if that is the case. capture sufficient disclosure about an burdensome? Should a Form 8–K Under Rule 100(b)(2) of Regulation issuer’s security ratings and the credit requirement be limited to solicited FD, disclosures to an entity whose rating agencies that have issued them? ratings? If a credit rating agency does primary business is the issuance of Could that lead to non-substantive or not publicly disclose the security rating security ratings are excluded from procedural modifications to the practice of an issuer’s securities, should we coverage provided the information is of assigning ratings so that issuers could require disclosure of the rating in a disclosed solely for the purpose of avoid the disclosure requirement? Form 8–K or in the issuer’s periodic developing a credit rating and the Would that lead to disclosure of security reports? How would the existence of entity’s ratings are publicly available. ratings that would not be useful to subscriber paid credit rating agencies We believe this exception for investors? What standard would provide affect your response? disclosures to credit rating agencies is the most useful information for • We are only proposing to amend appropriate given the purpose of investors? Could this threshold lead to Item 10(c) to remove references to Regulation FD and are therefore not ratings being obtained in connection consents in conjunction with our proposing to revise that provision. with an offering but not being proposed amendments to Rule 436(g) to disclosed? no longer requiring consents from any Request for Comment • In the 1994 Ratings Release, we credit rating agencies for inclusion of • Should we continue to allow proposed to require issuers to disclose their ratings in an issuer’s registration disclosure of security ratings in any material differences between the statement. Should there be a written ‘‘tombstones’’ to be deemed not to be a terms of the security as assumed in consent requirement? Would a written prospectus or free writing prospectus? Is rating the security and (1) the terms of consent requirement create any issues if it appropriate to allow such disclosure the security as specified in the the Commission were to require of a security rating by any credit rating governing instruments, and (2) the terms disclosure regarding those ratings? agency and not limit the allowance to of the security as marketed to investors. Would issuers find it problematic or NRSROs? If the credit rating agency is The terms of the securities are required costly to obtain consents? not an NRSRO, is it appropriate to to be disclosed in the prospectus, a • Should we require the consent of a require additional disclosure to that prospectus supplement, or a post- credit rating agency for the use of its effect? effective amendment, as applicable. security rating by an issuer? What • Should we revise Rule 100(b)(2) of Would this disclosure assist investors? would be the additional costs of such a Regulation FD to eliminate the Would requiring this disclosure in requirement? Would a consent requirement that the entity’s ratings be periodic filings assist investors in the requirement result in fewer ratings publicly available or to require public secondary market in making their being obtained? disclosure of information submitted to investment decisions? • Should we continue to limit the credit rating agencies by issuers? If so, • Having previously proposed consent requirement to non-NRSROs as please explain the basis for requiring material changes in security our rules currently do? Does our recommending the change and discuss ratings be reported on Form 8–K under proposed regulatory oversight and how to implement such changes. the Exchange Act,119 we recognize that additional disclosure regarding the • How would requiring disclosure such security rating changes can be ratings process and results of ratings under Regulation FD affect security important information to an investor in justify allowing the use of NRSROs ratings? making investment and voting ratings without requiring consents? decisions. We note, however, that Would such a provision provide a ‘‘seal III. General Request for Comments issuer-paid rating agencies make their of approval’’ for NRSROs? Would there We request and encourage any rating designations public. The current be any competitive effect on non- interested person to submit comments failures of security ratings, particularly NRSRO credit rating agencies? regarding: in the asset-backed securities markets, • Are there any issues with periodic • The proposed amendments that are have led us to re-evaluate the required disclosure regarding security ratings the subject of this release; level of disclosure regarding security that are particular to ABS issuers? For • Additional or different changes; or ratings. Would requiring detailed instance, how would the responsibility • Other matters that may have an current and/or periodic reporting of an to monitor changes or development in effect on the proposals contained in this issuer’s security ratings provide security ratings impact ABS offerings? release. investors and the markets sufficient, We request comment from the point D. Other Rules Referencing Security timely information about an issuer’s of view of companies, investors, and Ratings security ratings to assist them in making other market participants. With regard their investment decisions? Would a Other rules under the Securities Act to any comments, we note that such Form 8–K provide investors with also reference security ratings assigned comments are of great assistance to our material and timely information about by NRSROs. Rule 134(a)(17)120 permits rulemaking initiative if accompanied by an issuer’s security ratings and changes the disclosure of security ratings in supporting data and analysis of the in those ratings? Would periodic reports certain communications deemed not to issues addressed in those comments. on Form 10–K, Form 20–F, Form 10–Q be a prospectus or free writing In addition, we request comment on and Form 10–D provide investors with prospectus. We are not proposing to the following: eliminate this reference to security • Should the Commission include a 119 See the 1994 Ratings Release and Release No. phase-in for issuers beyond the effective 33–8106. 120 17 CFR 230.134(a)(17). date to accommodate pending offerings?

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If so, should a phase-in apply only to These regulations and forms set forth ABS issuers registering their offerings particular rules, such as Form S–3 the disclosure requirements for periodic on Form S–3.123 eligibility? As proposed, compliance reports and registration statements that C. Paperwork Reduction Act Burden with the new standards would begin on are prepared by issuers to provide Estimates the effective date of the new rules. Will investors with information to make a significant number of issuers have investment decisions in registered For purposes of the Paperwork their offerings limited by the proposed offerings and in secondary market Reduction Act, we estimate that there rules? If a phase-in is appropriate, transactions. Our proposed amendments will be no annual incremental increase should it be for a certain period of time to existing forms and regulations are in the paperwork burden for issuers to or only for the term of a pending intended to replace rule and form comply with our proposed collection of registration statement? requirements of the Securities Act and information requirements. • What impact on competition should the Exchange Act that rely on security D. Solicitation of Comments the Commission expect were it to adopt ratings with alternative requirements. We request comments in order to the proposed non-convertible debt The hours and costs associated with eligibility requirements? Would any evaluate: (1) Whether the proposed preparing disclosure, filing forms, and collection of information is necessary issuers that currently take advantage, or retaining records constitute reporting are eligible to take advantage of the for the proper performance of the and cost burdens imposed by the functions of the agency, including investment grade condition and are collection of information. There is no planning to do so, be adversely affected? whether the information would have mandatory retention period for the practical utility; (2) the accuracy of our Is the ability to offer debt off the shelf information disclosed, and the a significant competitive advantage that estimate of the burden of the proposed information disclosed would be made collection of information; (3) whether the Commission should be concerned publicly available on the EDGAR filing about limiting to only large debt issuers? there are ways to enhance the quality, system. utility, and clarity of the information to IV. Paperwork Reduction Act B. Summary of Collection of be collected; and (4) whether there are A. Background Information Requirements ways to minimize the burden of the collection of information on those who Certain provisions of the proposed The threshold we are proposing for are to respond, including through the rule amendments contain a ‘‘collection issuers of non-convertible securities use of automated collection techniques of information’’ within the meaning of who are otherwise ineligible to use or other forms of information the Paperwork Reduction Act of 1995 Form S–3 or Form F–3 to conduct technology.124 (PRA).121 The Commission is submitting primary offerings because they do not Any member of the public may direct these proposed amendments and meet the aggregate market value to us any comments concerning the proposed rules to the Office of requirement is designed to capture those accuracy of these burden estimates and Management and Budget (OMB) for issuers with an active market following. any suggestions for reducing these review in accordance with the PRA. An The Commission expects that under the burdens. Persons submitting comments agency may not conduct or sponsor, and proposed threshold, approximately the on the collection of information a person is not required to comply with, same number of issuers who are requirements should direct the a collection of information unless it currently eligible will be eligible to comments to the Office of Management displays a currently valid control register on Form S–3 or Form F–3 for and Budget, Attention: Desk Officer for number. The titles for the collections of 122 primary offerings of non-convertible the Securities and Exchange information are: securities for cash. In addition, because ‘‘Regulation S–K’’ (OMB Control No. Commission, Office of Information and these proposed amendments relate to 3235–0071); Regulatory Affairs, Washington, DC those forms’ eligibility requirements, ‘‘Regulation C’’ (OMB Control No. 20503, and should send a copy to rather than the disclosure requirements, 3235–0074); Secretary, Securities and Exchange ‘‘Form S–1’’ (OMB Control No. 3235– the Commission does not expect that the Commission, 100 F Street, NE., 0065) ; proposed revisions will impose any new Washington, DC 20549–1090, with ‘‘Form S–3’’ (OMB Control No. 3235– material recordkeeping or information reference to File No. S7–18–08. 0073); collection requirements. Issuers may be Requests for materials submitted to ‘‘Form S–4’’ (OMB Control No. 3235– required to ascertain the aggregate OMB by the Commission with regard to 0324); principal amount of non-convertible these collections of information should ‘‘Form F–1’’ (OMB Control No. 3235– securities issued in registered primary be in writing, refer to File No. S7–18– 0258); offerings for cash, but the Commission 08, and be submitted to the Securities ‘‘Form F–3’’ (OMB Control No. 3235– believes that this information should be and Exchange Commission, Records 0256); and readily available and easily calculable. Management, Office of Filings and ‘‘Form F–4’’ (OMB Control No. 3235– Our proposed amendments to Form Information Services, 100 F Street, NE., 0325). S–3 and Rule 415 for ABS offerings is Washington, DC 20549. OMB is required We adopted all of the existing intended to limit the investors to make a decision concerning the regulations and forms pursuant to the purchasing asset-backed securities in a collection of information between 30 Securities Act or the Exchange Act. delayed offering and off a short-form and 60 days after publication of this registration statement to sophisticated 121 44 U.S.C. 3501 et seq. ; 5 CFR 1320.11. and experienced investors without 123 As noted above, we have identified two areas 122 The paperwork burden from Regulation S–K of exception: unit repackagings and securitizations and S–B is imposed through the forms that are creating an undue detriment to the of insurance funding agreements. We do not believe subject to the requirements in those regulations and liquidity of the asset-backed securities that changes in these areas would substantially is reflected in the analysis of those forms. To avoid market. The Commission expects change the number of issuers that would be eligible a Paperwork Reduction Act inventory reflecting preliminarily that the proposed under the proposed Form S–3 eligibility duplicative burdens and for administrative requirement for ABS offerings. convenience, we assign a one-hour burden to amendments for ABS offerings would 124 We request comment pursuant to 44 U.S.C. Regulation S–K. not substantially change the number of 3506(c)(2)(B).

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release. Consequently, a comment to common equity, in registered primary 415(a)(vii) for mortgage-backed OMB is best assured of having its full offerings for cash. In addition, the securities are designed to make shelf effect if OMB receives it within 30 days Commission proposes to replace the eligibility and short-form registration of publication. Form S–3 eligibility requirement for available to sophisticated and ABS offerings to require that initial sales experienced investors. The proposed V. Cost-Benefit Analysis of eligible offerings be made only to requirement to permit initial sales only A. Proposed Amendments qualified institutional buyers and that to qualified institutional buyers is The Commission is sensitive to the initial and subsequent resales of the intended to limit the market to investors costs and benefits imposed by its rules. securities in the eligible offerings be who understand the risks involved with We have identified certain costs and made only in denominations of at least an ABS offering. The proposed benefits of the proposed amendments $250,000. In conjunction with this requirement that initial sales and and request comment on all aspects of proposal, the Commission proposes to subsequent resales of the securities are this cost-benefit analysis, including amend Rule 415 to provide for delayed in minimum denominations of $250,000 identification and assessment of any offerings of mortgage related securities, is designed to limit offerings to costs and benefits not discussed in this regardless of the security ratings, only if investors with such capital, increasing analysis. We seek comment and data on they meet the same criteria as proposed the probability that these investors have the value of the benefits identified. We for ABS offerings on Form S–3. the resources to analyze and also welcome comments on the Currently, issuers are required to comprehend the risks involved with an accuracy of the cost estimates in each obtain consent from a rating agency that investment decision in the ABS offering. section of this analysis, and request that is not an NRSRO for disclosure of a As with the other amendments to our commenters provide data that may be security rating issued by that rating rules and form requirements relying on relevant to these cost estimates. In agency in a registration statement or investment grade ratings, the addition, we seek estimates and views report. The Commission is also Commission believes that these regarding these costs and benefits for proposing to amend Securities Act Rule proposals would reduce or eliminate particular covered institutions, 436(g) and related rules to expand the undue reliance on ratings. including small institutions, as well as relief from the consent requirements for The proposed revision to Rule 134 of any other costs or benefits that may security ratings currently provided to the Securities Act would require an result from the adoption of these NRSROs to other credit rating agencies issuer to provide, if it elects to include proposed amendments. that are not NRSROs. In addition, the a security rating in a communication As discussed above, the proposed rule proposed revision to Rule 134 of the under Rule 134, a statement as to amendments are designed to address the Securities Act would permit an issuer to whether the entity issuing the rating is risk that the reference to and use of disclose the security rating of any credit an NRSRO. The Commission believes NRSRO ratings in our rules is rating agency, but would require an that disclosure of this information interpreted by investors as an issuer to provide, if it elects to include would be beneficial to investors in endorsement of the quality of the credit a security rating in a communication evaluating the value of the rating. ratings issued by NRSROs, and may under Rule 134, a statement as to Under our proposed amendment to encourage investors to place undue whether the entity issuing the rating is Rule 436(g), an issuer would not be reliance on the NRSRO ratings. Today’s an NRSRO. required to obtain consent from the rating agency even with respect to a proposals seek to replace rule and form B. Benefits requirements of the Securities Act and rating disclosed in a registration The Commission anticipates that one the Exchange Act that rely on security statement or report that is issued by a of the primary benefits of the proposed ratings by NRSROs with alternative credit rating agency that is not an amendments, if adopted, would be the requirements that do not rely on ratings. NRSRO. We believe that our proposed The Commission is proposing to benefit to investors of reducing their change would foster competition 126 revise the transaction eligibility possible undue reliance on NRSRO between credit rating agencies. ratings that could be caused by requirements of Forms S–3, F–3, and F– C. Costs 9. Currently, these forms allow issuers references to NRSROs in our rules. An We are proposing to revise the who do not meet the forms’ other over-reliance on ratings can inhibit transaction eligibility criteria for transaction eligibility requirements to independent analysis and could registering primary offerings of non- register primary offerings of non- possibly lead to investment decisions convertible securities on short-form convertible securities for cash if such that are based on incomplete registration statements. Forms S–3 and securities are rated investment grade by information. The purpose of the F–3 would be available to register an NRSRO.125 The proposed rules proposed rule amendments is to primary offerings of non-convertible would replace the current eligibility encourage investors to examine more securities if the issuer has issued (as of requirement with a requirement that for than a single source of information in a date within 60 days prior to the filing primary offerings of non-convertible making an investment decision. of the registration statement) for cash securities for cash, an issuer must have Eliminating reliance on ratings in the more than $1 billion in non-convertible issued in the three years (as of a date Commission’s rules could also result in securities, other than common equity, within 60 days prior to the filing of the greater investor due diligence and through registered primary offerings registration statement) at least $1 billion investment analysis. In addition, the over the prior three years. The proposed aggregate principal amount of non- Commission believes that eliminating eligibility thresholds may be more convertible securities, other than the reliance on ratings in its rules would remove any appearance that the difficult to ascertain for some issuers than an NRSRO rating and impose some 125 The proposed revisions to Form F–9 would Commission has placed its imprimatur eliminate a Canadian issuer’s ability to rely on on certain ratings. security ratings by NRSROs, but would continue to The Commission believes that the 126 This would be consistent with our proposed rely on ratings issued by Approved Rating proposed amendments to the Form S–3 amendments to the rules governing NRSROs in Organizations, as defined in National Policy Release No. 34–57967. As discussed in that release, Statement No. 45 of the Canadian Securities eligibility requirements for ABS such competition could promote ease of Administrator. offerings and eligibility to rely on Rule comparability between ratings.

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burden on issuers to ascertain the longer being able to utilize certain rules Commission believes that these information. In addition, while we do permitting the use of offering materials. amendments would reduce the potential not anticipate that fewer issuers will be The proposed revision to Rule 134 for over-reliance on ratings, and thereby eligible, to the extent that the proposal could impose a disclosure burden of promote investor protection. The results in fewer issuers eligible to use ascertaining whether the entity is an Commission anticipates that these Forms S–3 and F–3 to register primary NRSRO, but the Commission believes proposed amendments would improve offerings of non-convertible securities, this burden is slight given the limited investors’ ability to make informed this could result in increased costs of number of NRSROs, the availability of investment decisions, which will preparing and filing registration this information from public filings, and therefore lead to increased efficiency statements.127 Issuers who do not meet the issuer’s relationship with the credit and competitiveness of the U.S. capital the proposed threshold and are not rating agency. markets. The Commission expects that this increased market efficiency and otherwise eligible to use Forms S–3 and D. Request for Comments F–3, would have to register offerings on investor confidence also may encourage Forms S–1 or F–1. This could result in We seek comments and empirical data more efficient capital formation. additional time spent in the offering on all aspects of this Cost-Benefit Specifically, the proposed amendments process, and issuers may incur costs Analysis. Specifically, we ask the would: • Seek to limit the investors associated with preparing and filing following: • Are there any costs involved with purchasing asset-backed securities off a post-effective amendments to the tracking whether the initial purchaser is short-form registration statement to registration statement. a qualified institutional buyer? Are most sophisticated and experienced investors The Commission does not expect the ABS offerings on Form S–3 sold to such without creating an undue detriment to proposed changes to Forms F–1, F–3 purchasers? What kind of asset-backed the liquidity of the asset-backed and F–4 to impact substantially the securities are sold to retail investors? securities market; and number of registrants able to provide • Are there any costs entailed with • Seek to limit the issuers eligible to information required by Item 17 of Form tracking the denominations of the sale register primary offerings of non- 20–F in lieu of Item 18 information. for the purposes of meeting the convertible securities on Forms S–3 and However, because the Commission is proposed ABS offering Form S–3 F–3 and incorporate by reference to proposing changes to the provisions of eligibility requirements? issuers that are actively followed by the the forms that provide the eligibility • Would there be any significant markets; and requirements for registrants to provide transition costs imposed on issuers as a • Enhance the ability of credit rating Item 17 information instead of Item 18, result of the proposals, if adopted? agencies to offer security ratings to registrants who do not meet the Please be detailed and provide issuers. proposed criteria could incur more costs quantitative data or support, as The Commission solicits comment on as a result of being required to provide practicable. whether the proposed amendments Item 18 information instead. would change the Forms S–3 and F–3 VI. Consideration of Burden on eligibility requirements for registering For the most part, the Commission Competition and Promotion of primary offerings of non-convertible believes that there would be minimal Efficiency, Competition, and Capital securities, if adopted, would promote or costs involved with the adoption of the Formation burden efficiency, competition, and proposed ABS offering Form S–3 Section 23(a) of the Exchange Act 129 capital formation. The Commission also eligibility requirements and eligibility to requires the Commission, when making requests comment on whether the rely on Rule 415(a)(vii) for mortgage- proposed amendments would have 128 rules and regulations under the backed securities. Some costs may be Exchange Act, to consider the impact a harmful effects on investors or on incurred on the part of issuers to ensure new rule would have on competition. issuers who could use Form S–3 and that sales of the securities in an offering Section 23(a)(2) prohibits the Form F–3 for primary offerings of non- on Form S–3 are made only to qualified Commission from adopting any rule convertible securities, and what options institutional buyers and in the which would impose a burden on would best minimize those effects. The prescribed denominations; however, the competition not necessary or Commission requests comment on Commission believes these costs are not appropriate in furtherance of the whether the proposed changes to the significant. To the extent that some purposes of the Exchange Act. Section eligibility requirement on Form S–3 for issuers would no longer be able to use 2(b) of the Securities Act 130 and Section offerings of asset-backed securities Form S–3 to register their offerings, 3(f) of the Exchange Act 131 require the would promote or burden efficiency, those issuers may face some additional Commission, when engaging in competition, and capital formation. The costs, such as those arising from no rulemaking, to consider whether an Commission requests comment on action is necessary or appropriate in the whether the proposed eligibility 127 The ability to conduct primary offerings on public interest, and in addition, to criterion is less efficient than using the short form registration statements confers consider the protection of investors and current NRSRO criterion? Additionally, significant advantages on eligible companies in the Commission solicits comment on terms of cost savings and capital formation. The whether the action would promote time required to prepare Form S–3 or F–3 is efficiency, competition, and capital whether the proposed expansion of the significantly lower than that required for Forms S– formation. ability of credit rating agencies to 1 and F–1 primarily because registration statements The proposed amendments would proffer their security ratings without on Forms S–3 and F–3 can be automatically being required to provide a consent for updated. Forms S–3 and F–3 permit registrants to eliminate reliance on ratings by an forward incorporate required information by NRSRO in various rules and forms an issuer to disclose those ratings would reference to disclosure in their Exchange Act under the Securities Act and the promote or burden efficiency, filings. Exchange Act. If adopted, the competition, and capital formation. 128 ABS issuers generally provide the same Finally, the Commission requests disclosure in Form S–1 and Form S–3 registration statements. As such, there may not be the same cost 129 15 U.S.C. 78w(a). comment on the anticipated effect of concerns for ABS issuers that no longer qualify for 130 15 U.S.C. 77b(b). disclosure requirements on competition registration on Form S–3 as for other issuers. 131 15 U.S.C. 78c(f). in the market for credit rating agencies.

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The Commission requests commenters propose to change or any issuers that For the reasons set out in the to provide empirical data and other would be eligible to register under the preamble, Title 17, Chapter II of the factual support for their views, if affected rules that is a small entity. In Code of Federal Regulations is proposed possible. this regard, we note that credit rating to be amended as follows: agencies rarely, if ever, rate the VII. Regulatory Flexibility Act securities of small entities. We further PART 229—STANDARD Certification note most security ratings that will be INSTRUCTIONS FOR FILING FORMS The Commission hereby certifies, disclosed are expected to be ratings UNDER SECURITIES ACT OF 1933, pursuant to 5 U.S.C. 605(b), that the obtained and used by the issuer. Issuers SECURITIES EXCHANGE ACT OF 1934 amendments contained in this release, if are required to pay for these security AND ENERGY POLICY AND adopted, would not have a significant ratings and the cost of these ratings CONSERVATION ACT OF 1975— economic impact on a substantial relative to the size of a debt or preferred REGULATION S–K number of small entities. The proposed securities offering by a small entity amendments would: would generally be prohibitive. Finally, 1. The authority citation for part 229 • Amend the Securities Act Form S– based on an analysis of the language and continues to read in part as follows: 3 eligibility requirements for offerings of legislative history of the Regulatory Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, asset-backed securities by replacing the Flexibility Act, we note that Congress 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), investment grade component with a did not intend that the Act apply to 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, minimum denomination requirement foreign issuers. Accordingly, some of 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, for initial and subsequent sales and the entities directly affected by the 78o, 78u–5, 78w, 78ll, 78mm, 80a–8, 80a–9, require that initial sales of classes of 80a–20, 80a–29, 80a–30, 80a–31(c), 80a–37, proposed rule and form amendments 80a–38(a), 80a–39, 80b–11, and 7201 et seq.; securities only be made to qualified will fall outside the scope of the Act. 18 U.S.C. 1350, unless otherwise noted. institutional buyers; For these reasons, the proposed • Amend Rule 415 of the Securities amendments would not have a * * * * * Act that references mortgaged related significant economic impact on a 2. Amend § 229.10, paragraph (c)(1)(i) securities by adding the requirement substantial number of small entities. by: that an initial and subsequent sale of a. Removing the second sentence; VIII. Small Business Regulatory such a security must meet certain b. Revising ‘‘NRSRO’’ in the third Enforcement Fairness Act minimum denominations, and initial sentence to read, ‘‘credit rating agency sales must be made to qualified For purposes of the Small Business (as defined in 15 U.S.C. 78c(a)(61))’’; institutional buyers; Regulatory Enforcement Fairness Act of and • 132 Amend the Securities Act Form S– 1996, a rule is ‘‘major’’ if it has c. Revising the phrase ‘‘Instruction to 3 and Form F–3 eligibility requirements resulted, or is likely to result in: • paragraph (a)(2)’’ in the fourth sentence for primary offerings of non-convertible An annual effect on the U.S. to read, ‘‘paragraph A.2.(B)’’. securities if the issuer has issued (as of economy of $100 million or more; • A major increase in costs or prices 3. Amend § 229.1100 by revising a date within 60 days prior to the filing paragraph (c)(2)(ii)(B) to read as follows: of the registration statement) for cash for consumers or individual industries; more than $1 billion in non-convertible or § 229.1100 (Item 1100) General. • Significant adverse effects on securities, other than common stock, * * * * * through registered primary offerings, competition, investment, or innovation. We request comment on whether our (c) * * * within the prior three years; (2) * * * • Amend Form F–9 which requires proposal would be a ‘‘major rule’’ for securities to be rated investment grade purposes of the Small Business (ii) * * * to instead require that the issuer have Regulatory Enforcement Fairness Act. (B) The third party meets the issued in the prior three years at least We solicit comment and empirical data requirements of General Instruction I.A. $1 billion of aggregate principle amount on: of Form S–3 or General Instructions • The potential effect on the U.S. of debt or preferred securities for cash 1.A.1, 2, 3, 4, and 6 of Form F–3 and economy on an annual basis; in registered primary offerings; the pool assets relating to such third • Any potential increase in costs or • Amend Forms S–4 and F–4 and party are non-convertible securities, prices for consumers or individual Schedule 14A to conform with the other than common equity, that were industries; and proposed Form S–3/F–3 eligibility issued in a primary offering for cash that • Any potential effect on competition, requirements; was registered under the Securities Act. investment, or innovation. • Amend Securities Act Rules 138, * * * * * 139, and Rules 168 to be consistent with IX. Statutory Authority and Text of 4. Amend § 229.1112 by: the proposed Form S–3/F–3 eligibility Proposed Rule and Form Amendments a. In paragraph (b) remove Instruction requirements; We are proposing the amendments 2 to Item 1112(b); • Amend Item 10(c) to conform to our contained in this document under the b. Redesignating Instructions 3 and 4 proposed Rule 436(g) changes; authority set forth in Sections 6, 7, 10, • Amend Rule 134(a)(17) to allow for to Items 1112(b) as Instructions 2 and 3 19(a) of the Securities Act and Sections disclosure of ratings assigned by any to Item 1112(b). 12, 13, 14, 15(d) and 23(a) of the Credit Rating Agency—not just 5. Amend § 229.1114 by: Exchange Act. NRSROs; and a. In paragraph (b) revise the heading • Amend Rule 436(g) to replace the List of Subjects in 17 CFR Parts 229, for ‘‘Instructions to Item 1114:’’ to read current reference to ‘‘nationally 230, 239, and 240 ‘‘Instructions to Item 1114(b):’’. recognized statistical rating Reporting and recordkeeping b. Removing Instruction 3 to Item organization’’ with a reference to ‘‘credit requirements, Securities. 1114. rating agency.’’ c. Redesignating Instructions 4 and 5 We are not aware of any issuers that 132 Pub. L. No. 104–121, Title II, 110 Stat. 857 to Item 1114 as Instructions 3 and 4 to currently rely on the rules that we (1996). Item 1114.

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PART 230—GENERAL RULES AND has not been filed, will be, offering non- whether such manufactured home is REGULATIONS, SECURITIES ACT OF convertible securities and meets the considered real or personal property 1933 requirements for the General Instruction under the laws of the State in which it I.B.2 of Form S–3 or Form F–3; or is to be located, or on one or more 6. The authority citation for part 230 parcels of real estate upon which is continues to read in part as follows: * * * * * (B) * * * located one or more commercial Authority: 15 U.S.C. 77b, 77c, 77d, 77f, (2) * * * structures; and 77g, 77h, 77j, 77r, 77s, 77z–3, 77sss, 78c, 78d, (ii) Is issuing non-convertible (ii) Were originated by a savings and 78j, 78l, 78m, 78n, 78o, 78t, 78w, 78ll(d), securities and meets the provisions of loan association, savings bank, 78mm, 80a–8, 80a–24, 80a–28, 80a–29, 80a– commercial bank, credit union, 30, and 80a–37, unless otherwise noted. General Instruction I.B.2. of Form F–3; and insurance company, or similar * * * * * institution which is supervised and * * * * * 7. Amend § 230.134 by: examined by a Federal or State 10. Amend § 230.168 by revising a. Revising paragraph (a)(17)(i); authority, or by a mortgage approved by paragraph (a)(2)(ii)(B) to read as follows: b. Redesignating paragraph (a)(17)(ii) the Secretary of Housing and Urban as paragraph (a)(17)(iii); and § 230.168 Exemption from sections Development pursuant to sections 203 c. Adding new paragraph (a)(17)(ii). 2(a)(10) and 5(c) of the Act for certain and 211 of the National Housing Act, or, The revision and addition read as communications of regularly released where such notes involve a lien on the follows: factual business information and forward- manufactured home, by any such § 230.134 Communications not deemed a looking information. institution or by any financial prospectus. * * * * * institution approved for insurance by * * * * * (a) * * * the Secretary of Housing and Urban (a) * * * (2) * * * Development pursuant to section 2 of (17) * * * (ii) * * * the National Housing Act; or (i) Any security rating assigned, or (B) Is issuing non-convertible (2) Is secured by one or more reasonably expected to be assigned, by securities and meets the provisions of promissory notes or certificates of a credit rating agency, as that term is General Instruction I.B.2 of Form F–3; interest or participations in such notes defined in 15 U.S.C. 78c(a)(61), and the and (with or without recourse to the issuer name or names of the credit rating * * * * * thereof) and, by its terms, provides for agencies that assigned or is or are 11. Amend § 230.415 by revising payments of principal in relation to reasonably expected to assign the paragraph (a)(1)(vii) to read as follows: payments, or reasonable projections of rating(s); payments, on notes meeting the (ii) If the credit rating agency or § 230.415 Delayed or continuous offering requirements of paragraphs agencies that assigned or is or are and sale of securities. (a)(1)(vii)(C)(1) (i) and (ii) of this section reasonably expected to assign the (a) * * * or certificates of interest or rating(s) is not a nationally recognized (1) * * * participations in promissory notes security rating organization, as that term (vii) Mortgage backed securities, meeting such requirements. including such securities as mortgage is defined in 15 U.S.C. 78c(a)(62), Note to paragraph (a)(1)(vii): For purposes include a statement to that effect; and backed debt and mortgage participation of paragraph (a)(1)(vii) of the section, the or pass through certificates, provided * * * * * term ‘‘promissory note,’’ when used in 8. Amend § 230.138 by revising that: connection with a manufactured home, shall (A) Initial sale and any resales of the paragraph (a)(2)(ii)(B)(2) to read as also include a loan, advance, or credit sale securities are made in minimum as evidence by a retail installment sales follows: denominations of $250,000; and contract or other instrument. § 230.138 Publications or distributions of (B) Initial sales of the securities are * * * * * research reports by brokers or dealers made only to qualified institutional 12. Amend § 230.436 by revising about securities other than those they are buyers (as defined in § 230.144A(a)(1)); distributing. paragraph (g) and removing the and authority citations following the section (a) * * * (C) Either of the following is true: to read as follows: (2) * * * (1) Represents ownership of one or (ii) * * * more promissory notes or certificates of § 230.436 Consents required in special (B) * * * interest or participation in such notes cases. (2) Is issuing non-convertible (including any rights designed to assure * * * * * securities and the registrant meets the servicing of, or the receipt or timeliness (g) Notwithstanding the provisions of provisions of General Instruction I.B.2 of receipt by the holders of such notes, paragraphs (a) and (b) of this section, of Form F–3; and certificates, or participations of amounts the security rating assigned to a class of * * * * * payable under, such notes, certificates, debt securities, a class of convertible 9. Amend § 230.139 by revising or participations), which notes: debt securities, or a class of preferred paragraphs (a)(1)(i)(A)(1)(ii) and (i) Are directly secured by a first lien stock by a credit rating agency as (a)(1)(i)(B)(2)(ii) to read as follows: on a single parcel of real estate, defined in 15 U.S.C. 78c(a)(61), or with § 230.139 Publications or distributions of including stock allocated to a dwelling respect to registration statements on research reports by brokers or dealers unit in a residential cooperative housing Form F–9 (§ 239.39 of this chapter) by distributing securities. corporation, upon which is located a any other rating organization specified (a) * * * dwelling or mixed residential and in the Instruction to paragraph A of (1) * * * commercial structure, on a residential General Instruction I of Form F–9, shall (i) * * * manufactured home as defined in not be considered a part of the (A)(1) * * * section 603(6) of the National registration statement prepared or (ii) At the date of reliance on this Manufactured Housing Construction certified by a person within the meaning section, is, or if a registration statement and Safety Standards Act of 1974, of sections 7 and 11 of the Act.

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PART 239—FORMS PRESCRIBED the residual value of the physical common equity, in primary offerings for UNDER THE SECURITIES ACT OF 1933 property underlying the leases, as cash registered under the Act; or determined in accordance with the 2. The only securities to be registered 13. The authority citation for part 239 transaction agreements for the are to be offered: continues to read in part as follows: securities, does not constitute 20% or i. Upon the exercise of outstanding Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, more, as measured by dollar volume, of rights granted by the issuer of the 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, the securitized pool balance as of the securities to be offered, if such rights are 78o(d), 78u–5, 78w(a), 78ll, 78mm, 80a–2(a), measurement date. granted on a pro rata basis to all existing 80a–3, 80a–8, 80a–9, 80a–10, 80a–13, 80a– Instruction. For purposes of making security holders of the class of securities 24, 80a–26, 80a–29, 80a–30, and 80a–37, the determinations required by to which the rights attach and there is unless otherwise noted. paragraphs (a)(iii) and (a)(iv) of this no standby underwriting in the United * * * * * General Instruction I.B.5, refer to the States or similar arrangement; or 14. Amend Form S–3 (referenced in Instructions to Item 1101(c) of ii. Pursuant to a dividend or interest § 239.13) by: Regulation AB (17 CFR 229.1101(c)). reinvestment plan; or a. Revising General Instructions I.B.2 * * * * * iii. Upon the conversion of and I.B.5; and outstanding convertible securities or b. Removing Instruction 3 to the 15. Amend Form S–4 (referenced in upon the exercise of outstanding signature block. § 239.25) by revising General Instruction transferable warrants issued by the The revisions read as follows: B.1.a.(ii)(B) to read as follows: Note: The text of Form S–4 does not, and issuer of the securities to be offered, or Note: The text of Form S–3 does not, and by an affiliate of such issuer. this amendment will not, appear in the Code this amendment will not, appear in the Code of Federal Regulations. Instruction: Attention is directed to of Federal Regulations. section 10(a)(3) of the Securities Act. FORM S–3 FORM S–4 * * * * * 17. Amend Form F–3 (referenced in REGISTRATION STATEMENT UNDER REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 § 239.33) by: THE SECURITIES ACT OF 1933 a. Revising General Instruction I.B.2; * * * * * * * * * * and GENERAL INSTRUCTIONS b. Deleting Instruction 3 to the GENERAL INSTRUCTIONS signature block. I. Eligibility Requirements for Use of * * * * * The revision to General Instruction Form S–3 B. Information With Respect to the I.B.2 reads as follows: * * * * * Registrant Note: The text of Form F–3 does not, and this amendment will not, appear in the Code B. Transaction Requirements* * * 1. * * * a. * * * of Federal Regulations. 2. Primary Offerings of Non- (ii) * * * convertible Securities. Non-convertible (B) Non-convertible debt or preferred FORM F–3 securities to be offered for cash by or on securities are to be offered pursuant to REGISTRATION STATEMENT UNDER behalf of a registrant, provided the this registration statement and the THE SECURITIES ACT OF 1933 registrant, as of a date within 60 days requirements of General Instruction * * * * * prior to the filing of the registration I.B.2. of Form S–3 have been met; or statement on this Form, has issued in * * * * * GENERAL INSTRUCTIONS the last three years at least $1 billion 16. Amend Form F–1 (referenced in I. Eligibility Requirements for Use of aggregate principal amount of non- § 239.31) by revising Item 4.c, including Form F–3 convertible securities, other than the Instructions to read as follows: * * * * * common equity, in primary offerings for Note: The text of Form F–1 does not, and cash, not exchange, registered under the this amendment will not, appear in the Code B. Transaction Requirements * * * Act. of Federal Regulations. 2. Primary Offerings of Non- * * * * * convertible Securities. Non-convertible 5. Offerings of Asset-backed FORM F–1 securities to be offered for cash Securities. REGISTRATION STATEMENT UNDER provided the issuer, as of a date within (a) Asset-backed securities (as defined THE SECURITIES ACT OF 1933 in 17 CFR 229.1101) to be offered for 60 days prior to the filing of the cash, provided: * * * * * registration statement on this Form, has (i) Initial sales and any resales of the Item 4. Information with Respect to issued in the last three years at least $1 securities are made in minimum the Registrant and the Offering. billion aggregate principal amount of denominations of $250,000; * * * * * non-convertible securities, other than (ii) Initial sales of the securities are c. Information required by Item 17 of common equity, in primary offerings for made only to qualified institutional Form 20–F may be furnished in lieu of cash, not exchange, registered under the buyers (as defined in 17 CFR the information specified by Item 18 Act. In the case of securities registered 230.144A(a)(1)); thereof if: pursuant to this paragraph, the financial (iii) Delinquent assets do not 1. The only securities being registered statements included in this registration constitute 20% or more, as measured by are non-convertible securities offered for statement may comply with Item 17 or dollar volume, of the asset pool as of the cash and the registrant, as of a date 18 of Form 20–F. measurement date; and within 60 days prior to the filing of the * * * * * (iv) With respect to securities that are registration statement on this Form, has 18. Amend Form F–4 (referenced in backed by leases other than motor issued in the last three years at least $1 § 239.34) by: vehicle leases, the portion of the billion aggregate principal amount of a. revising General Instruction securitized pool balance attributable to non-convertible securities, other than B.1(a)(ii)(B); and

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b. revising the following in Part I.B: I.B.2 of Form F–3 have been satisfied. (A) Offered for cash or in connection Instruction 1 to Item 11 following *** with an exchange offer; and paragraph (a)(3); the first sentence in * * * * * (B) Either non-convertible or not paragraph (b)(2) to Item 12; Instruction Item 13. Incorporation of Certain convertible for a period of at least one 1 to Item 13 following paragraph (b); Information by Reference. year from the date of issuance and, and paragraph (h) to Item 14. * * * * * except as noted in E. below, are The revisions read as follows: (b) * * * thereafter only convertible into a Note: The text of Form F–4 does not, and Instructions security of another class of the issuer; this amendment will not, appear in the Code 1. All annual reports incorporated by and of Federal Regulations. reference pursuant to Item 13 of this (2) Either of the following is true: Form shall contain financial statements (A) The registrant, as of a date within FORM F–4 that comply with Item 18 of Form 20– 60 days prior to the filing of the F, except that financial statements of the registration statement on this Form, has REGISTRATION STATEMENT UNDER issued in the last three years at least $1 THE SECURITIES ACT OF 1933 registrants may comply with Item 17 of Form 20–F if the only securities being billion of aggregate principal amount of * * * * * registered are non-convertible securities debt or preferred securities for cash in primary offerings registered under the GENERAL INSTRUCTIONS offered for cash and the requirements of General Instruction I.B.2 of Form F–3 Act; or * * * * * (B) The securities are investment have been satisfied. grade debt or investment grade preferred B. Information with Respect to the * * * * * securities. Securities shall be Registrant Item 14. Information With Respect to ‘‘investment grade’’ for purposes of this 1. * * * Foreign Registrants Other Than F–3 requirement if, at the time of sale, at a. * * * Registrants. least one Approved Rating Organization (ii) * * * * * * * * (as defined in National Policy Statement (B) Non-convertible debt or preferred (h) Financial statements required by No. 45 of the Canadian Securities securities are to be offered pursuant to Item 18 of Form 20–F, except that Administrator, as the same may be this registration statement and the financial statements of the registrants amended from time to time) has rated requirements of General Instruction may comply with Item 17 of Form 20– the security in one of its generic rating I.B.2. of Form F–3 have been met; or F if the only securities being registered categories that signifies investment * * * * * are non-convertible securities offered for grade; typically the four highest rating cash and the requirements of General categories (within which there may be PART I—INFORMATION REQUIRED Instruction I.B.2 of Form F–3 have been IN THE PROSPECTUS subcategories or gradations indicating satisfied, as well as financial relative standing) signify investment * * * * * information required by Rule 3–05 and grade. Article 11 of Regulation S–X with B. INFORMATION ABOUT THE respect to transactions other than that REGISTRANT PART 240—GENERAL RULES AND pursuant to which the securities being REGULATIONS, SECURITIES * * * * * registered are to be issued (Schedules EXCHANGE ACT OF 1934 Item 11. Incorporation of Certain required by Regulation S–X shall be Information by Reference. filed as ‘‘Financial Statement 20. The authority citation for part 240 * * * * * Schedules’’ pursuant to Item 21 of this continues to read in part as follows: (a) * * * Form); and Authority: 15 U.S.C. 77c, 77d, 77g, 77j, (3) * * * * * * * * 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, Instructions 19. Amend Form F–9 (referenced in 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, § 239.39) by: 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a– 1. All annual reports or registration a. Revising General Instruction I.A; statements incorporated by reference 20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, b. Removing Instruction D to the 80b–11, and 7201 et seq.; and 18 U.S.C. 1350, pursuant to Item 11 of this Form shall signature block. unless otherwise noted. contain financial statements that The revision reads as follows: * * * * * comply with Item 18 of Form 20–F 21. Amend § 240.14a–101 by revising except that financial statements of the Note: The text of Form F–9 does not, and this amendment will not, appear in the Code Note E(2)(ii) to read as follows: registrants may comply with Item 17 of of Federal Regulations. Form 20–F if the only securities being § 240.14a–101 Schedule 14A. Information registered are non-convertible securities FORM F–9 required in proxy statement. offered for cash and the requirements of * * * * * General Instruction I.B.2 of Form F–3 REGISTRATION STATEMENT UNDER have been satisfied. THE SECURITIES ACT OF 1933 Notes * * * * * * * * * * * * * * * E. * * * Item 12. Information With Respect to GENERAL INSTRUCTIONS F–3 Registrants. (2) * * * I. Eligibility Requirements for Use of (ii) Action is to be taken as described * * * * * in Items 11, 12, and 14 of this schedule (b) * * * Form F–9 which concerns non-convertible debt or (2) Include financial statements and A. Form F–9 may be used for the preferred securities issued by a information as required by Item 18 of registration under the Securities Act of registrant meeting the requirements of Form 20–F, except that financial 1933 (the ‘‘Securities Act’’) for an General Instruction I.B.2 of Form S–3; or statements of the registrant may comply offering of debt or preferred securities if: with Item 17 of Form 20–F if the (1) The debt or preferred securities to * * * * * requirements of General Instruction be offered are: By the Commission.

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Dated: July 1, 2008. review your comments more efficiently, VIII. Regulatory Flexibility Act Certification Florence E. Harmon, please use only one method. The IX. Initial Regulatory Flexibility Analysis X. Statutory Authority Acting Secretary. Commission will post all comments on Text of Proposed Rule Amendments [FR Doc. E8–15281 Filed 7–10–08; 8:45 am] the Commission’s Internet Web site BILLING CODE 8010–01–P (http://www.sec.gov/rules/ I. Introduction proposed.shtml). Comments are also On June 16, 2008, in furtherance of available for public inspection and the Credit Rating Agency Reform Act of copying in the Commission’s Public SECURITIES AND EXCHANGE 2006,3 the Commission published for Reference Room, 100 F Street, NE., COMMISSION notice and comment two rulemaking Washington, DC 20549, on official initiatives.4 The first proposes 17 CFR Parts 270 and 275 business days between the hours of 10 additional requirements for NRSROs 5 a.m. and 3 p.m. All comments received [Release Nos. IC–28327; IA–2751 File No. that were directed at reducing conflicts will be posted without change; we do S7–19–08] of interest in the credit rating process, not edit personal identifying fostering competition and comparability RIN 3235–AK19 information from submissions. You among credit rating agencies, and should submit only information that increasing transparency of the credit References to Ratings of Nationally you wish to make publicly available. Recognized Statistical Rating rating process.6 The second is designed FOR FURTHER INFORMATION CONTACT: Organizations to improve investor understanding of Penelope Saltzman, Acting Assistant the risk characteristics of structured AGENCY: Securities and Exchange Director, or Vincent Meehan, Senior finance products. Those proposals Commission. Counsel, (202) 551–6792, Office of address concerns about the integrity of Regulatory Policy, or Smeeta ACTION: Proposed rule. the credit rating procedures and Ramarathnam, Senior Counsel, (202) methodologies of NRSROs in light of the SUMMARY: 551–6792, Office of Special Projects, This is one of three releases role they played in determining the Division of Investment Management, that the Securities and Exchange credit ratings for securities that were the Securities and Exchange Commission, Commission (‘‘Commission’’) is subject of the recent turmoil in the 100 F Street, NE., Washington, DC publishing simultaneously relating to credit markets. the use in its rules and forms of credit 20549–5041. Today’s proposals comprise the third ratings issued by nationally recognized SUPPLEMENTARY INFORMATION: The of these three rulemaking initiatives statistical rating organizations Commission is proposing for public relating to credit ratings by an NRSRO (‘‘NRSROs’’). In this release, the comment amendments to rules 2a–7 [17 that the Commission is proposing. This Commission proposes to amend five CFR 270.2a–7], 3a–7 [17 CFR 270.3a–7], release, together with two companion rules under the Investment Company 5b–3 [17 CFR 270.5b–3], and 10f–3 [17 releases, sets forth the results of the Act of 1940 and the Investment CFR 270.10f–3] under the Investment Commission’s review of the Advisers Act of 1940 that rely on Company Act of 1940 (‘‘Investment requirements in its rules and forms that 1 NRSRO ratings. The proposed Company Act’’), and amendments to rely on credit ratings by an NRSRO. The amendments are designed to address rule 206(3)–3T [17 CFR 275.206(3)–3T] proposals also address recent concerns that the reference to NRSRO under the Investment Advisers Act of recommendations issued by the ratings in Commission rules may have 1940 (‘‘Investment Advisers Act’’ or 2 President’s Working Group on Financial contributed to an undue reliance on ‘‘Advisers Act’’). Markets (‘‘PWG’’), the Financial NRSRO ratings by market participants. Table of Contents Stability Forum (‘‘FSF’’) and the DATES: Comments should be received on I. Introduction Technical Committee of the or before September 5, 2008. II. Background International Organization of Securities ADDRESSES: Comments may be III. Discussion Commissions (‘‘IOSCO’’).7 Consistent submitted by any of the following A. Rule 2a–7 methods: 1. Minimal Credit Risk Determination 3 Public Law No. 109–291, 120 Stat. 1327 (2006). 2. Portfolio Liquidity 4 Proposed Rules for Nationally Recognized Electronic Comments 3. Monitoring Minimal Credit Risks Statistical Rating Organizations, Securities • 4. Commission Notice of Rule 17a–9 Exchange Act Release No. 57967 (June 16, 2008) [73 Use the Commission’s Internet Transactions FR 36212 (June 25, 2008)] (‘‘NRSRO June 16, 2008 comment form (http://www.sec.gov/ B. Rule 3a–7 Proposing Release’’). rules/proposed.shtml); or C. Rule 5b–3 5 As described in more detail below, an NRSRO • Send an e-mail to rule- D. Rule 10f–3 is an organization that issues ratings that assess the [email protected]. Please include File E. Rule 206(3)–3T creditworthiness of an obligor itself or with regard to specific securities or money market instruments, Number S7–19–08 on the subject line; IV. Request for Comment V. Paperwork Reduction Act has been in existence as a credit rating agency for or at least three years, and meets certain other criteria. • VI. Cost-Benefit Analysis The term is defined in section 3(a)(62) of the Use the Federal eRulemaking Portal VII. Consideration of Promotion of Efficiency, (http://www.regulations.gov). Follow the Securities Exchange Act of 1934 (‘‘Exchange Act’’). Competition and Capital Formation A credit rating agency must apply with the instructions for submitting comments. Commission to register as an NRSRO, and currently Paper Comments 1 15 U.S.C. 80a. Unless otherwise noted, all there are ten registered NRSROs. references to rules under the Investment Company 6 See Press Release No. 2008–110 (June 11, 2008). • Send paper comments in triplicate Act will be to Title 17, Part 270 of the Code of 7 See President’s Working Group on Financial to Secretary, Securities and Exchange Federal Regulations [17 CFR 270], and all references Markets, Policy Statement on Financial Market to statutory sections are to the Investment Company Developments (March 2008), available at Commission, 100 F Street, NE., Act. www.ustreas.gov (‘‘PWG Statement’’); The Report of Washington, DC 20549–1090. 2 15 U.S.C. 80b. Unless otherwise noted, all the Financial Stability Forum on Enhancing Market All submissions should refer to File references to rules under the Investment Advisers and Institutional Resilience (April 2008), available Act will be to Title 17, Part 275 of the Code of at www.fsforum.org (‘‘FSF Report’’); Technical Number S7–19–08. This file number Federal Regulations [17 CFR 275], and all references Committee of the International Organization of should be included on the subject line to statutory sections are to the Investment Advisers Securities Commissions, Consultation Report: The if e-mail is used. To help us process and Act. Role of Credit Rating Agencies in Structured

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with these recommendations, the III. Discussion Rule 2a–7 exempts money market Commission is considering whether the The credit ratings issued by NRSROs funds from these provisions but inclusion of requirements related to are used in four of the Commission’s contains maturity, quality, and ratings in its rules and forms has, in rules under the Investment Company diversification conditions designed to effect, placed an ‘‘official seal of Act—rules 2a–7, 3a–7, 5b–3, and 10f– minimize the deviation between a approval’’ on ratings that could 3—and one rule under the Investment money market fund’s stabilized share adversely affect the quality of due Advisers Act—rule 206(3)–3T. These price and the market value of its diligence and investment analysis. The rules use the credit ratings issued by the portfolio.15 Among these conditions, Commission believes that today’s NRSROs in different contexts, and for rule 2a–7 limits a money market fund’s proposals could reduce undue reliance different purposes, to distinguish among portfolio investments to securities that on credit ratings and result in various grades of debt and other rated have received credit ratings from the improvements in the analysis that securities. We propose to amend each ‘‘Requisite NRSROs’’ in one of the two underlies investment decisions. rule to omit references to NRSRO ratings highest short-term rating categories or II. Background and, except with respect to one of the comparable unrated securities (i.e., rules, substitute alternative provisions ‘‘Eligible Securities’’).16 Rule 2a–7 The Commission first used the term that are designed to appropriately further restricts money market funds to ‘‘NRSRO’’ in our rules in 1975 in the net achieve the same purpose as the ratings. securities that the fund’s board of capital rule for broker-dealers, Rule Below we discuss these proposals in directors (which typically rely on the 15c3–1 (‘‘Net Capital Rule’’) 8 under the greater detail in the context of each rule fund’s adviser 17) determines present Securities Exchange Act of 1934 (the minimal credit risks, and specifically 9 we propose to amend. ‘‘Exchange Act’’) as an objective requires that determination ‘‘be based benchmark to prescribe capital charges A. Rule 2a–7 on factors pertaining to credit quality in for different types of debt securities. Rule 2a–7 under the Investment addition to any ratings assigned to such Since then, we have used the Company Act governs the operation of securities by an NRSRO.’’ 18 designation in a number of regulations money market funds. Unlike other We propose to eliminate references to under the federal securities laws. investment companies (‘‘funds’’), money ratings by amending rule 2a–7 in four Although we originated the use of the market funds seek to maintain a stable principal ways.19 In combination, these term NRSRO for a narrow purpose in share price, typically at $1.00 per share. proposed amendments are designed to our own regulations, ratings by NRSROs To do so, most money market funds use offer similar protections to the current today are used widely as benchmarks in the amortized cost method of valuation rule’s reliance on NRSRO ratings.20 federal and state legislation, rules issued (‘‘amortized cost method’’) or the by other financial regulators, in the penny-rounding method of pricing 1. Minimal Credit Risk Determination United States and abroad, and private (‘‘penny-rounding method’’) permitted Under the proposed amendments, we financial contracts. by rule 2a–7.12 The Investment would rely on money market fund Referring to NRSRO ratings in Company Act and applicable rules boards of directors to determine that regulations was intended to provide a generally require funds to calculate each portfolio instrument presents clear reference point to both regulators minimal credit risks,21 and whether the and market participants. Increasingly, current net asset value per share by we have seen clear disadvantages of valuing their portfolio instruments at 15 Rule 2a–7 contains conditions that apply to using the term in many of our market value or, if market quotations are not readily available, at fair value as each investment a money market fund proposes to regulations. Foremost, there is a risk make, as well as conditions that apply to a money determined in good faith by the board market fund’s entire portfolio. that investors interpret the use of the 13 term in laws and regulations as an of directors. These valuation 16 The term ‘‘Eligible Security’’ is defined in rule endorsement of the quality of the credit requirements are designed to prevent 2a–7(a)(10). ‘‘Requisite NRSROs’’ is defined in rule unfair share pricing from diluting or 2a–7(a)(21). ratings issued by NRSROs, which may 17 otherwise adversely affecting the See rule 2a–7(e). have encouraged investors to place 18 14 Rule 2a–7(c)(3)(i). Thus, under the current rule, undue reliance on the credit ratings interests of investors. where the security is rated, having the requisite issued by these entities. In addition, as NRSRO rating is a necessary but not sufficient 10 and rule 206(3)–3T under the Investment Advisers condition for investing in the security and cannot demonstrated by recent events, there Act. be the sole factor considered in determining has been increasing concern about 12 Under the amortized cost method, portfolio whether a security presents minimal credit risks. ratings and the ratings process. Further, instruments are valued by reference to their See Revisions to Rules Regulating Money Market by referencing ratings in the acquisition cost as adjusted for amortization of Funds, Investment Company Act Release No. 18005 Commission’s rules, market participants premium or accretion of discount. See rule 2a– (Feb. 20, 1991) [56 FR 8113 (Feb. 27, 1991)], at text 7(a)(2). Share price is determined under the penny- preceding n.18. operating pursuant to these rules may be rounding method by valuing securities at market 19 The proposed amendments would also make vulnerable to failures in the ratings value, fair value or amortized cost and rounding the conforming amendments to rule 2a–7’s record process. In light of this, the Commission per share net asset value to the nearest cent on a keeping and reporting requirements. See proposed proposes to amend regulations under share value of a dollar, as opposed to the nearest rule 2a–7(c)(11). one tenth of one cent. See rule 2a–7 (a)(18). 20 In 2003, the Commission published a concept the Investment Company Act and the 13 See section 2(a)(41) of the Investment Company release in which we sought comment on the use of Investment Advisers Act that use the Act (defining value) and rules 2a–4 (defining NRSRO ratings in our rules. See Rating Agencies term NRSRO or refer to NRSRO current net asset value) and 2a–7(c) thereunder and the Use of Credit Ratings Under the Federal ratings.11 (money market fund share price calculations). Securities Laws, Investment Company Act Release 14 If shares are sold or redeemed based on a net No. 26066 (June 4, 2003) [68 FR 35258 (June 12, asset value which turns out to have been either 2003)]. Comments on the concept release are Finance Markets (March 2008), p. 9, available at understated or overstated to the amount at which available at: http://www.sec.gov/rules/concept/ www.iosco.org. portfolio instruments could have been sold, then s71203.shtml. As discussed above, recent events 8 17 CFR 240.15c3–1. the interests of either existing shareholders or new have highlighted the need to revisit our reliance on 9 15 U.S.C. 78a. investors will have been diluted. See Investment NRSRO ratings in the context of these 10 See NRSRO June 16, 2008 Proposing Release, Trusts and Investment Companies: Hearings on S. developments. See also the extensive discussion of supra note 4, at Section I.C. 3580 Before a Subcomm. of the Sen. Comm. on market developments in the NRSRO June 16, 2008 11 These regulations include rules 2a–7, 3a–7, 5b– Banking and Currency, 76th Cong., 3d Sess. 136– Proposing Release, supra note 4. 3 and 10f–3 under the Investment Company Act 138, 288 (1940). 21 See proposed rule 2a–7(a)(10).

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security is a ‘‘First Tier Security’’ or a What other alternatives could we adopt money market fund to monitor ‘‘Second Tier Security’’ for purposes of to encourage more independent credit purchases of illiquid instruments.29 the rule.22 We believe that money risk analysis and meet the regulatory Money market funds often have a market fund boards of directors would objectives of rule 2a–7’s requirement of greater and perhaps less predictable still be able to use quality NRSRO ratings? Are the distinctions our volume of redemptions than other open- determinations prepared by outside proposed amendments would draw end investment companies. Further, the sources, including NRSRO ratings that between First Tier and Second Tier portfolio management of a money they conclude are credible, in making Securities workable? Is there a better market fund may be impaired if a fund credit risk determinations. We expect way to describe the characteristics of a were forced to meet redemption that the boards of directors (or their First Tier Security without reference to requests by selling marketable securities delegates) would understand the basis ratings? Are we correct in our that it would otherwise wish to retain in for the rating and make an independent expectation that the proposed standards order to avoid attempting to dispose of judgment of credit risks. would not impose additional burdens illiquid portfolio instruments.30 In light Under the proposed amendments, a on boards or investment advisers, or of these potential problems, the security would be an Eligible Security if require new recordkeeping proposal would prohibit money market the board of directors determines that it requirements? funds from acquiring illiquid securities representing more than 10 percent of presents minimal credit risks, which 2. Portfolio Liquidity determination must be based on factors their total assets.31 In the event that pertaining to credit quality and the Under the proposed amendments, a changes in the money market fund’s issuer’s ability to meet its short-term money market fund must hold securities portfolio or other external events cause financial obligations.23 A security that are sufficiently liquid to meet the fund’s investments in illiquid would be a First Tier Security if the reasonably foreseeable redemptions in instruments to exceed 10 percent of the fund’s board had determined that the light of the fund’s obligations under fund’s assets, the money market fund issuer has the ‘‘highest capacity to meet section 22(e) of the Investment would have to take steps to bring the 24 Company Act and any commitments the aggregate amount of illiquid securities its short-term financial obligations.’’ 26 A security would be a Second Tier fund has made to its shareholders. In back within the proposed limitations as Security if it is an Eligible Security but addition, the proposed amendments soon as reasonably practicable. is not a First Tier Security.25 We have would expressly limit a money market However, consistent with the current designed these proposed definitions to fund’s investment in illiquid securities rule, this requirement generally would to not more than 10 percent of its total retain a degree of risk limitations similar not force the money market fund to assets.27 The proposed amendments to what is in the current rule. liquidate any portfolio security where would define a Liquid Security as a We request comment on the proposed the fund would suffer a loss on the sale security that can be sold or disposed of 32 amendments. What are the advantages of that instrument. in the ordinary course of business and disadvantages of eliminating the We request comment on the proposed within seven days at approximately the requirement to use NRSRO ratings from amendments. Should we include in rule value ascribed to it by the money market rule 2a–7? Would eliminating the rating 2a–7 an express requirement that money fund.28 These proposed provisions requirements from rule 2a–7 affect the market funds limit their exposure to should be familiar to managers of amount or nature of risks money market illiquid securities? Do the proposed money market funds. Past releases funds would be willing or able to take? requirements provide money market proposing, adopting and amending rule funds sufficient flexibility to retain What are the advantages and 2a–7 repeatedly emphasized the special securities that may be illiquid if the disadvantages of relying on minimum duty of the board of directors of a disposal of those securities would not credit risk determinations? What are the be in the best interests of the fund? Are advantages and disadvantages of having 26 See proposed rule 2a–7(c)(5). Section 22(e) of there alternative or additional fund directors and investment advisers the Investment Company Act prohibits registered provisions that we should consider to exclusively make credit quality investment companies from suspending the right of address the way in which money market determinations? Are we correct that the redemption or postponing the date of payment current rule’s reliance on credit ratings upon redemption of any redeemable security for more than seven days except for certain periods 29 See, e.g., Valuation of Debt Instruments and discourages fund directors and specified in the provision. While the Investment Computation of Current Price per Share by Certain investment advisers from performing Company Act requires only that an investment Open-End Investment Companies (Money Market independent credit risk assessments? company make payment of the proceeds of Funds), Investment Company Act Release No. redemption within seven days, most money market 12206 (Feb. 1, 1982) [47 FR 5428 (Feb. 5, 1982)] funds promise investors that they will receive (proposing rule 2a–7); Valuation of Debt 22 Rule 2a–7(c)(4) addresses portfolio proceeds much sooner, often on the same day that Instruments and Computation of Current Price Per diversification requirements for money market the request for redemption is received by the fund. Share by Certain Open-End Investment Companies funds, including diversification requirements 27 The proposed standard codifies the current (Money Market Funds), Investment Company Act relating to First and Second Tier Securities. standard regarding portfolio liquidity. See Release No. 13380 (July 11, 1983) [48 FR 32555 23 Proposed rule 2a–7(a)(10). Revisions to Rules Regulating Money Market Funds, (July 18, 1983)] (‘‘Rule 2a–7 Adopting Release’’); 24 Proposed rule 2a–7(a)(12). Investment Company Act Release No. 21837 (Mar. 1986 Valuation Release, supra note 27. 25 See rule 2a–7(a)(22). The specific language of 21, 1996) [61 FR 13956 (Mar. 28, 1996)] (‘‘Rule 2a– 30 Rule 2a–7 Adopting Release, supra note 29, at this provision would not change, but the definitions 7 1996 Amending Release’’), at text accompanying text preceding, accompanying and following nn.37– of ‘‘Eligible Security’’ and ‘‘First Tier Security’’ n.108 (‘‘The limit on money fund holdings of 39. would change under the proposal. Consistent with illiquid securities is ten percent of fund assets.’’); 31 Proposed rule 2a–7(c)(5). Money market funds the current rule, under proposed rule 2a–7, a money Acquisition and Valuation of Certain Portfolio must limit their investments in illiquid assets to not market fund that is not a tax exempt fund generally Instruments by Registered Investment Companies, more than 10 percent of their net assets. See rule must limit its investments in Second Tier Securities Investment Company Act Release No. 14983 (Mar. 2a–7 1996 Amending Release, supra note 27, at to no more than five percent of fund assets, with 12, 1986) [51 FR 9773 (Mar. 21, 1986)] (‘‘1986 n.108 and accompanying text. An investment investment in the Second Tier Securities of any one Valuation Release’’). Although credit ratings do not company’s portfolio security is illiquid if it cannot issuer being limited to the greater of one percent of directly incorporate liquidity risks, they have been be disposed of in the ordinary course of business fund assets or one million dollars. Proposed rule used as a proxy for liquidity because a security may within seven days at approximately the value 2a–7(c)(3)(ii)(A) and (c)(4)(i)(C)(1). Tax exempt lose liquidity if its credit rating falls. ascribed to it by the investment company. See id. money market funds are subject to different 28 See proposed rule 2a–7(a)(17). See also 1986 at n.107 and accompanying text. limitations on investments in Second Tier Conduit Valuation Release, supra note 27 at text following 32 See Rule 2a–7 Adopting Release, supra note 29, Securities. Rule 2a–7(c)(3)(ii)(B) and (c)(4)(i)(C)(2). n.21. at n.38.

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funds should evaluate liquidity risk and information about their portfolio are often referred to as ‘‘asset-backed’’ determine whether to dispose of securities? securities. securities that present an increasing 4. Commission Notice of Rule 17a–9 Rule 3a–7 contains a number of liquidity risk? Transactions conditions that differentiate investment 3. Monitoring Minimal Credit Risks companies from structured financings. Finally, the proposed amendments The conditions include the requirement The proposed amendments would would require that money market funds that structured financings offered to the also amend rule 2a–7’s downgrade and provide the Commission with prompt general public are rated by at least one default provisions. We propose that in notice when an affiliate of the money NRSRO in one of the four highest the event the money market fund’s market fund (or its promoter or ratings categories.37 The rule contains investment adviser becomes aware of principal underwriter) purchases from an exception under which asset-backed any information about a portfolio the fund a security that is no longer an securities sold to accredited investors 38 security or an issuer of a portfolio Eligible Security, pursuant to rule 17a– 39 35 and qualified institutional buyers may security that suggests that the security 9 under the Investment Company Act. be unrated, or may be rated less than may not continue to present minimal We believe that the current notice investment grade, if the issuer and its credit risks, the money market fund’s provisions, which are triggered when a underwriters use reasonable care to board of directors would have to security held by a fund defaults, provide ensure that all excepted sales are to reassess promptly whether the portfolio us with incomplete information about such persons.40 We concluded that security continues to present minimal money market funds holding distressed these persons are in a position to 33 securities, particularly those that have credit risks. This proposed evaluate the structured financing engaged in an affiliated transaction with requirement would replace the vehicle and to take steps to protect an affiliated person. The additional provisions in the current rule that themselves from the types of abusive notice, which we believe would impose generally require a money market fund practices against which the Investment little burden on money market funds or board to promptly reassess whether a Company Act was designed to protect.41 security that has been downgraded by their managers, would enhance our oversight of money market funds We understand that today most asset- an NRSRO continues to present minimal backed securities are issued by special credit risks, and take such action as the especially during times of economic stress. purpose vehicles that do not rely on rule board determines is in the best interests 3a–7 to exclude them from the of the fund and its shareholders.34 We We request comment on the proposed amendments. application of the Investment Company do not believe that the proposed Act. Instead, they rely on section 3(c)(7), amendments would require investment B. Rule 3a–7 which was added to the Act in 1996, advisers to subscribe to every rating Rule 3a–7 under the Investment after the Commission adopted rule 3a– service publication in order to comply Company Act excludes structured 7, and provides an exception from the with this proposal. However, we would finance vehicles from the Act’s Act for companies whose securities are expect an investment adviser to exercise definition of ‘‘investment company’’ limited to any issuer, the outstanding reasonable diligence in keeping abreast subject to certain conditions.36 In a securities of which are owned of new information about a portfolio typical financing, a sponsor transfers a exclusively by persons who are security that is reported in the national pool of assets (such as residential qualified purchasers, and that is not financial press or in publications to mortgages) to a limited purpose entity, making and does not at that time which the investment adviser which in turn issues fixed income propose to make a public offering of subscribes. securities that are rated investment such securities. Moreover, asset-backed We request comment on the proposed grade or higher by at least one NRSRO. securities issued by financing vehicles amendments. Would the requirement Payment on the securities depends that rely on rule 3a–7, even when highly that the board of directors reassess the primarily on the cash flows generated rated, generally are not marketed to credit risk of a security when 42 by the pooled assets. As a result, these retail investors. Accordingly, we investment advisers become aware of propose to eliminate the rule’s reliance information that may suggest the 35 Proposed rule 2a–7(c)(7)(iii)(B) (requiring on ratings by amending the rule to security no longer presents minimal notice to the Commission of any ‘‘purchase of a security from the fund by an affiliated person or credit risks provide adequate investor 37 Rule 3a–7(a)(2). promoter of or principal underwriter for the fund protections? Would investment advisers 38 or an affiliated person of such a person in reliance The exception permits the sale of asset backed be able to stay abreast of new on rule 17a–9’’). See rule 17a–9 (exempting from fixed-income securities to ‘‘accredited investors’’ as section 17(a) of the Act the purchase of a security defined in paragraphs (1), (2), (3) and (7) of rule 33 Proposed rule 2a–7(c)(7) (‘‘In the event the ‘‘that is no longer an Eligible Security (as defined 501(a) under the Securities Act [17 CFR 230.501(a)], money market fund’s investment adviser (or any in [rule 2a–7(a)(10)]) under certain conditions).’’ and includes any entity in which all of the equity person to whom the fund’s board of directors has Notification under this proposed provision would owners come within such paragraphs. Rule 3a– delegated portfolio management responsibilities) also be amended to require electronic mail, instead 7(a)(2)(i). becomes aware of any information about a portfolio of the other means currently listed in rule 2a– 39 The exception permits the sale of any asset security or an issuer of a portfolio security that may 7(c)(6)(iii). We believe this change is appropriate in backed securities to ‘‘qualified institutional buyers’’ suggest that the security may not continue to light of recent changes in telecommunications as defined in rule 144A under the Securities Act [17 present minimal credit risks, the board of directors technology, and because most of the notices of CFR 230.144A] and certain other persons involved shall reassess promptly whether such security default that we have received in the past year have in the organization or operation of the issuer or an continues to present minimal credit risks and shall been transmitted electronically. affiliate, as defined in rule 405 under the Securities cause the fund to take such action as the board of 36 Structured financings meet the definition of Act [17 CFR 230.405]. Rule 3a–7(a)(2)(ii). directors determines is in the best interests of the investment company under section 3(a) of the Act 40 Rule 3a–7(a)(2). money market fund and its shareholders.’’). because they issue securities and invest in, own, 41 See Exclusion from the Definition of 34 Rule 2a–7(c)(6)(i)(A). This current assessment hold, or trade securities. Almost none of the Investment Company for Certain Structured is not required, however, if the downgraded structured financings, however, are able to operate Financings, Investment Company Act Release No. security is disposed of or matures within five under the Act’s requirements. See Exclusion from 18736 (May 29, 1992) [57 FR 23980 (June 5, 1992)] business days of the specified event and in the case the Definition of Investment Company for (proposing rule 3a–7). of events specified in rule 2a–7(c)(6)(i)(A)(2), the Structured Financings, Investment Company Act 42 See Credit & Finance Risk Analysis Asset board is subsequently notified of the adviser’s Release No. 19105 (Nov. 19, 1992) [57 FR 56248 Backed Securities and Structural Finance, at actions. Rule 2a–7(c)(6)(i)(B). (Nov. 27, 1992)] (‘‘Rule 3a–7 Adopting Release’’). http://www.credfinrisk.com/assetsecure.html.

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eliminate the exclusion for structured finance vehicles from investment counterparties. Section 5(b)(1) of the Act financings offered to the general public. companies for those investors? For limits the amount that a fund that holds In addition, we are proposing to example, should we permit offerings to itself out as being a diversified amend the part of the rule that the general public if a sponsor or trustee investment company may invest in the addresses substitution of eligible assets conducts an independent statistical securities of any one issuer (other than to remove the reference to ratings analysis of the anticipated cash flows? the U.S. Government). This provision downgrades. The rule permits the issuer Are we correct in our assumption that may limit the number and principal to acquire additional eligible assets or dropping the rating requirement from amounts of repurchase agreements a dispose of assets only if, among other the rule will not blur the current diversified fund may enter into with any conditions, the acquisition or distinction between structured finance one counterparty. disposition of the assets does not result vehicles and investment companies? If Rule 5b–3 allows funds to treat the in a downgrading in the rating of the not, should the rule incorporate acquisition of a repurchase agreement as issuer’s outstanding fixed-income alternatives to the rule’s rating an acquisition of securities securities.43 We propose to require requirement that would clarify the collateralizing the repurchase agreement instead that the issuer have procedures distinction? For example, should the for purposes of sections 5(b)(1) and to ensure that the acquisition or rule contain specific requirements 12(d)(3) of the Act if the obligation of disposition does not adversely affect the regarding abuses that the Act is the seller to repurchase the securities full and timely payment of the designed to address, such as self-dealing from the fund is ‘‘collateralized outstanding fixed income securities.44 and overreaching by the issuer? Does fully.’’ 49 A repurchase agreement is Finally, we propose to amend the our proposal regarding the deposit of collateralized fully if, among other portion of the rule that deals with the cash flows into a segregated account things, the collateral for the repurchase safekeeping of assets.45 Among other provide sufficient protection against the agreement consists entirely of (i) cash requirements, the rule provides that possibility of loss while the servicer is items, (ii) government securities, (iii) cash flows from the asset pool handling cash flows pending payment securities that at the time the repurchase periodically be deposited in a to the fixed income security holders? agreement is entered into are rated in segregated account, consistent with the Would an alternative standard provide the highest rating category by the rating of the outstanding fixed income better protection? ‘‘Requisite NRSROs’’ or (iv) unrated securities.46 This provision was securities that are of a comparable C. Rule 5b–3 intended to ensure that the segregated quality to securities that are rated in the account in which the cash flows are Rule 5b–3 under the Investment highest rating category by the Requisite deposited and the length of time that the Company Act permits a fund, subject to NRSROs, as determined by the fund’s servicer holds the cash flows before certain conditions, to treat a repurchase board of directors or its delegate.50 depositing them in the segregated agreement as an acquisition of the In proposing rule 5b–3, the account would pose a minimal risk of securities collateralizing the repurchase Commission explained that the highest loss to the fixed income security agreement in determining whether the rating category requirement in the holders. We propose to change this fund is in compliance with two definition of collateralized fully was provision to require that the cash flows provisions of the Act that may affect a designed to ensure that the market value be deposited in a segregated account fund’s ability to invest in repurchase of the collateral would remain fairly consistent with the full and timely agreements.48 Section 12(d)(3) of the stable and that the fund could more payment of the outstanding fixed Investment Company Act generally readily liquidate the collateral quickly income securities.47 The proposed prohibits a fund from acquiring an in the event of a default.51 amendment is designed to minimize the interest in a broker, dealer, or We propose to eliminate the risk of loss of cash flows pending underwriter. Because a repurchase requirement that collateral other than payment to the fixed income securities agreement may be considered to be the cash or government securities be rated holders. acquisition of an interest in the by an NRSRO. As an alternative, we We request comment on our proposed counterparty, section 12(d)(3) may limit propose to require that if the collateral amendments to rule 3a–7. What are the a fund’s ability to enter into repurchase is not cash or government securities, the advantages and disadvantages of agreements with many of the firms that fund’s board of directors (or its delegate) eliminating the NRSRO rating act as repurchase agreement requirement from the rule? Is our 49 Rule 5b–3(a). The term ‘‘Collateralized Fully’’ understanding that structured 48 In a typical investment company repurchase is defined in rule 5b–3(c)(1). An investment financings are generally not marketed to agreement, a fund enters into a contract with a company investing in a repurchase agreement retail investors correct? If not, should broker, dealer, or bank (the ‘‘counterparty’’ to the primarily looks to the value and liquidity of the we retain an exclusion for structured transaction) for the purchase of securities. The securities collateralizing the repurchase agreement counterparty agrees to repurchase the securities at rather than the credit quality of the counterparty for finance offerings to the general public? a specified future date, or on demand, for a price satisfaction of the repurchase agreement. If so, what standards should we impose that is sufficient to return to the fund its original 50 Rule 5b–3(c)(1)(iv). The term ‘‘Requisite that could distinguish structured purchase price, plus an additional amount NRSROs’’ means any two NRSROs that have issued representing the return on the fund’s investment. a rating with respect to a security or class of debt Repurchase agreements provide funds with a obligations of an issuer or, if only one NRSRO has 43 Rule 3a–7(a)(3)(ii). convenient means to invest excess cash on a issued a rating with respect to such security or class 44 Proposed rule 3a–7(a)(3)(ii). secured basis, generally for short periods of time. of debt obligations of an issuer at the time the 45 Rule 3a–7(a)(4). Economically, a repurchase agreement functions as investment company acquires the security, that 46 Rule 3a–7(a)(4)(iii). a loan from the fund to the counterparty, in which NRSRO. Rule 5b–3(c)(6). The term ‘‘unrated 47 Proposed rule 3a–7(a)(4)(iii). The proposed the securities purchased by the fund serve as securities’’ means securities that have not received amendment would require the issuer to take collateral for the loan and are placed in the a rating from the Requisite NRSROs. Rule 5b– ‘‘actions necessary for the cash flows derived from possession or under the control of the fund’s 3(c)(8). eligible assets for the benefit of the holders of fixed- custodian during the term of the agreement. See 51 See Treatment of Repurchase Agreements and income securities to be deposited periodically in a Treatment of Repurchase Agreements and Refunded Refunded Securities as an Acquisition of the segregated account that is maintained or controlled Securities as an Acquisition of the Underlying Underlying Securities, Investment Company Act by the trustee consistent with the full and timely Securities, Investment Company Act Release No. Release No. 24050 (Sept. 23, 1999) [64 FR 52476 payment of the outstanding fixed income 25058 (July 5, 2001) [66 FR 36156 (July 11, 2001)] (Sept. 29, 1999)] (‘‘Rule 5b–3 Proposing Release’’), securities.’’ (‘‘Rule 5b–3 Adopting Release’’). at n.43 and accompanying text.

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determines that the collateral securities NRSRO. Rule 5b–3 requires the underwriting or selling syndicate for present minimum credit risks and are certification by an independent certified that security.61 The prohibition was highly liquid. Specifically, the proposal public accountant (together with the intended to address Congress’s concern would require collateral other than cash other conditions) to ensure that the that underwriters were ‘‘dumping’’ or government securities to consist of bankruptcy of the issuer of the pre- otherwise unmarketable securities on securities that the fund’s board of refunded securities would not affect affiliated funds, either by forcing the directors (or its delegate) determines at payments on the securities from the fund to purchase unmarketable the time the repurchase agreement is escrow account.57 The Commission securities from the underwriting affiliate entered into (i) are sufficiently liquid included this exception because in itself, or by forcing or encouraging the that they can be sold at or near their rating refunded securities, NRSROs fund to purchase the securities from carrying value within a reasonably short typically require that an independent another member of the syndicate.62 period of time, (ii) are subject to no third party make the same Congress also expressed concern greater than minimal credit risk, and determination.58 regarding the amount of underwriting (iii) are issued by a person that has the We request comment on the proposed fees earned by the sponsors and highest capacity to meet its financial amendments. How would the proposed affiliated persons who placed the obligations.52 Although the rule would elimination of the rating requirement securities with the fund.63 no longer require the collateral to be from the definition of ‘‘collateralized The Commission adopted rule 10f–3 rated by an NRSRO, we anticipate that fully’’ affect funds? Would the proposed in 1958 to permit a fund that is affiliated evaluating credit risk and liquidity of board determinations sufficiently with members of an underwriting the collateral could incorporate ratings, address our concerns that collateral syndicate to purchase securities from reports, analyses, and other assessments securities be of high quality in order to the syndicate if certain conditions are issued by NRSROs and other persons.53 limit a fund’s exposure to met.64 We amended rule 10f–3 in 1979 NRSRO ratings are also used in a counterparties’ credit risks? If not, are to add municipal securities to the class provision of rule 5b–3 that permits a there additional or alternative standards of securities that funds could purchase fund to deem the acquisition of a that would better address our concerns? under the rule.65 The rule defines ‘‘refunded security’’ as the acquisition How would the proposal to eliminate of the escrowed government securities the exception for rated securities from person of the issuer; (ii) acting alone or in concert for purposes of section 5(b)(1)’s the condition that refunded securities with one or more other persons, initiates or directs diversification requirements.54 Under obtain a certification from an the formation of an underwriting syndicate; or (iii) this provision, a debt security must independent auditor affect funds? We is allowed a rate of gross commission, spread, or other profit greater than the rate allowed another satisfy certain conditions to be expect that with respect to rated underwriter participating in the distribution. 15 considered a refunded security under refunded securities, funds may be able U.S.C. 80a–2a(a)(29). the rule. One of these conditions is that to satisfy the certification requirement 61 Section 10(f) prohibits a fund from purchasing an independent certified public by determining that an NRSRO required a security during the existence of an underwriting or selling syndicate if a principal underwriter of the accountant must have certified to the an independent certified public security is an officer, director, member of an escrow agent that the escrowed accountant to make the same advisory board, investment adviser, or employee of securities will satisfy all scheduled determination.59 Would funds incur any the fund or is a person of which any such officer, payments of principal, interest, and costs in determining that a refunded director, member of an advisory board, investment applicable premiums on the refunded security has received an accountant adviser, or employee is an affiliated person. An 55 affiliated person of a fund includes, among others: securities. This condition is not certification rather than relying on an (i) Any person directly or indirectly owning, required, however, if the refunded NRSRO rating? Is there an alternative controlling, or holding with power to vote, five security has received a debt rating in the standard that would provide an percent or more of the outstanding voting securities highest rating category from an equivalent evaluation? For example, of the fund; (ii) any person five percent or more of 56 whose outstanding voting securities are directly or NRSRO. should we permit the board to rely on indirectly owned, controlled, or held with power to We are proposing to eliminate the another independent third party to vote by the fund; and (iii) any person directly or exception to the certification provide the certification? indirectly controlling, controlled by, or under requirement for securities that have common control with such other person. 15 U.S.C. D. Rule 10f–3 80a–2(a)(3)(A), (B) and (C). received the highest rating from an 62 Section 10(f) of the Investment See Report of the SEC, Investment Trusts and Investment Companies, H.R. Doc. No. 279, 76th 52 Proposed rule 5b–3(c)(1)(iv)(C). Under the Company Act prohibits a registered Cong., 2d Sess., pt. 3, at 2581, 2589 (1939). The proposal, the board would make credit quality investment company from purchasing sales were also used to alleviate certain of an determinations for all non-government collateral any security for which an affiliated affiliated underwriter’s financial difficulties. For securities, rather than just unrated securities. As in example, an underwriter could benefit by rapidly the current rule, the proposed rule would permit underwriter is acting as a principal 60 turning over its securities inventory to produce the board to delegate this credit quality and underwriter during the existence of an working capital and to reduce the related expenses liquidity determination. of carrying the inventory. 53 A fund that acquires repurchase agreements 57 See Rule 5b–3 Adopting Release, supra note 48, 63 See Hearings on S.3580 Before a Subcommittee would have to adopt and implement a written at text accompanying n.25 (explaining that the of the Commission on Banking and Currency, 76th policy reasonably designed to comply with this conditions required in the definition of refunded Cong., 3d Sess. 209, 212–23 (1940). requirement under rule 38a–1 under the Investment security correspond to those in the definition of the 64 Adoption of Rule N–10–F–3 Permitting Company Act. See rule 38a–1(a) (requiring term in rule 2a–7); Rule 2a–7 1986 Amending Acquisition of Securities of Underwriting Syndicate registered funds to adopt and implement written Release, supra note 31, at section II.D.2. Pursuant to Section 10(f) of the Investment policies and procedures reasonably designed to 58 See Technical Revisions to the Rules and Company Act of 1940, Release No. 2797 (Dec. 2, prevent the fund’s violation of federal securities Forms Regulating Money Market Funds, Investment 1958) [23 FR 9548 (Dec. 10, 1958)]. The rule laws). Company Act Release No. 22921 (Dec. 2, 1997) [62 codified the conditions of orders that the 54 Rule 5b–3(b). Under the rule, a refunded FR 64968 (Dec. 9, 1997)], at section I.B.2.c. Commission had granted prior to 1958 exempting security means a debt security the principal and 59 See, e.g., Standard & Poor’s, Public Finance certain funds from section 10(f) to permit them to interest payments of which are to be paid by U.S. Criteria: Defeasance: Legal Defeasance Criteria, Cash purchase specific securities. government securities that have been irrevocably Flow Verification (Sept. 8, 2006). 65 Exemption of Acquisition of Securities During placed in an escrow account and are pledged only 60 The term ‘‘principal underwriter’’ means (in the Existence of Underwriting Syndicate, to the payment of the debt security. Rule 5b–3(c)(4). relevant part) an underwriter who, in connection Investment Company Act Release No. 10736 (June 55 Rule 5b–3(c)(4)(iii). with a primary distribution for securities: (i) Is in 14, 1979) [44 FR 36152 (June 20, 1979)] (‘‘Rule 10f– 56 Id. privity of contract with the issuer or an affiliated 3 1979 Adopting Release’’). Rule 10f–3(c)(1)(iii).

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municipal securities that may be board, including a majority of acting and obtaining the consent of the purchased during an underwriting in disinterested directors, already is client to such transaction.’’ 71 Rule reliance on the rule (‘‘eligible municipal required to review purchases of 206(3)–3T contains several conditions securities’’) to include securities that municipal securities made in reliance that are designed to prevent have an investment grade rating from at on the rule, and would continue to do overreaching by advisers by requiring an least one NRSRO or, if the issuer or the so under our proposal. In addition, adviser to disclose to its client the entity supplying the revenues or other pursuant to its oversight role, the board conflicts of interest involved in payments from which the issue is to be would be required to approve principal transactions, inform the client paid has been in continuous operation procedures for ensuring that municipal of the circumstances in which the for less than three years (i.e., a less securities meet the proposed conditions adviser may effect a trade on a principal seasoned security), one of the three for credit quality and liquidity. basis, and provide the client with highest ratings from an NRSRO.66 The Although the rule would no longer meaningful opportunities to refuse to Commission explained that the rationale require municipal securities to be rated consent to a particular transaction or behind the rating requirement was to by an NRSRO, fund boards of directors revoke the prospective general consent prevent the purchase of less seasoned would still be able to incorporate to these transactions.72 securities and reduce the risk of quality determinations prepared by An adviser generally may not rely on unloading unmarketable securities on outside sources, including ratings, the rule for principal trades of securities the fund.67 reports, analyses, and other assessments if the investment adviser or a person We propose to eliminate the issued by NRSROs and other persons, in who controls, is controlled by, or is references to ratings in rule 10f–3, and their approval of procedures and in under common control with the adviser amend the rule’s definition of ‘‘eligible their review of transactions under the (‘‘control person’’) is the issuer or is an municipal security’’ to mean securities rule. underwriter of the security.73 As we that are sufficiently liquid that they can We request comment on the proposed stated when we adopted the rule, the be sold at or near their carrying value amendment to rule 10f–3. What would incentives associated with underwriting within a reasonably short period of be the effect of eliminating the rating securities may bias the advice being time. In addition, the securities would requirement in the definition of provided or lead the adviser to exert have to be either: (i) Subject to no ‘‘eligible municipal securities’’? Is the undue influence on its client’s decision greater than moderate credit risk; or (ii) proposed standard that municipal to invest in the offering or the terms of if they are less seasoned securities, securities purchased in reliance on rule that investment.74 The rule contains an subject to a minimal or low amount of 10f–3 present no more than moderate exception to this ‘‘underwritten credit risk.68 credit risks and are highly liquid securities’’ exclusion for trades in which Unlike our proposals to amend other sufficient to limit the possibility the adviser or a control person is an rules, we are not proposing to add a underwriters may sell unmarketable underwriter of non-convertible requirement that the board of directors securities to the fund? Is there an investment-grade debt securities.75 We make the determination regarding credit alternative that would better address our provided this exception because non- risk and liquidity. Rule 10f–3 already regulatory concerns? convertible investment grade debt requires a fund’s directors, including a securities may be less risky and E. Rule 206(3)–3T majority of disinterested directors, to therefore less likely to be ‘‘dumped’’ on approve procedures regarding purchases Rule 206(3)–3T under the Investment clients.76 The rule defines an made in reliance on the rule and to Advisers Act of 1940 establishes a ‘‘investment grade debt security’’ as a determine each quarter that all temporary alternative means for non-convertible debt security that, at the purchases were made in compliance investment advisers who are registered time of sale, is rated in one of the four with the procedures.69 Accordingly, the with the Commission as broker-dealers highest rating categories of at least two to meet the requirements of section NRSROs.77 66 Rule 10f–3(a)(3). 206(3) of the Advisers Act when they We propose to amend rule 206(3)– 67 Exemption of Acquisition of Securities During act in a principal capacity in 3(T), to eliminate an adviser’s ability to the Existence of Underwriting Syndicate, transactions with certain of their Investment Company Act Release No. 10592 (Feb. rely exclusively on NRSRO ratings to 70 13, 1979) [44 FR 10580 (Feb. 21, 1979)] (‘‘1979 10f– advisory clients. That section makes it determine whether a security is 3 Amendments Proposing Release’’). unlawful for any investment adviser, investment grade for purposes of the 68 Proposed rule 10f–3(a)(3). The proposed rule directly or indirectly ‘‘acting as rule. Instead, the adviser would have to would define ‘‘eligible municipal securities’’ to principal for his own account, make its own assessment taking into mean ‘‘’municipal securities’’ as defined in section 3(a)(29) of the Securities Exchange Act of 1934, that knowingly to sell any security to or account specified criteria, including that have sufficient liquidity such that they can be sold purchase any security from a client the security: (i) Has no greater than at or near their carrying value within a reasonably * * *, without disclosing to such client short period of time and either (i) are subject to no in writing before the completion of such 71 15 U.S.C. 80b–6(3). greater than moderate credit risk or (ii) if the issuer 72 See Principal Trade Rule Release, supra note of the municipal securities, or the entity supplying transaction the capacity in which he is 70, at text accompanying n.28. the revenues or other payments from which the 73 issue is to be paid, has been in continuous investment company (or any of its officers, Rule 206(3)–3T(a)(2). operation for less than three years, including the directors, employees or adviser) may have with 74 Principal Trade Rule Release, supra note 70, at operation of any predecessors, the securities are underwriters and any role the affiliate person n.35 and accompanying and following text. subject to a minimal or low amount of credit risk.’’ would play in mounting the underwriting of a 75 Id. at text accompanying n.36. There is no 69 Rule 10f–3(c)(10). The Commission added the particular issue. See 1979 10f–3 Amendments exception if the adviser or a control person is the requirement that disinterested directors adopt Proposing Release, supra note 67, at text preceding issuer of the securities. procedures made in reliance on the rule and n.23. Our proposal would not affect this existing 76 Id. at text following n.36. We also noted in the periodically review the fund’s compliance with requirement with respect to the purchase of Principal Trade Rule Release that it may be easier these procedures in 1979. See Rule 10f–3 1979 municipal securities. for clients to identify whether the price they are Adopting Release, supra note 65. At the time, we 70 Rule 206(3)–3T [17 CFR 275.206(3)–3T]. See being quoted for a non-convertible investment grade stressed that in determining specific procedures to also Temporary Rule Regarding Principal Trades debt security is fair given the relative comparability, be included in the guidelines for transactions in with Certain Advisory Clients, Investment Advisers and the significant size, of the non-convertible reliance on the rule, the board should be aware Act Release No. 2653 (Sept. 24, 2007) [72 FR 55022 investment grade debt markets. Id. generally of the nature of any affiliation that the (Sept. 28, 2007)] (‘‘Principal Trade Rule Release’’). 77 Rule 206(3)–3T(c).

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moderate credit risk; and (ii) is comments on other matters that might credit risks, and whether the security is sufficiently liquid that it can be sold at have an effect on the proposals a ‘‘First Tier Security’’ or a ‘‘Second Tier or near its carrying value within a contained in this release. Commenters Security;’’ (ii) add a portfolio liquidity reasonably short period of time.78 are requested to provide empirical data requirement to the rule that would Finally, as we stated when we to support their views. require that money market funds hold adopted rule 206(3)–3T, an adviser securities that are sufficiently liquid to V. Paperwork Reduction Act subject to rule 206(4)–7 of the Advisers meet reasonably foreseeable shareholder Act must adopt and implement written Certain provisions of the proposed redemptions, and expressly limit their policies and procedures reasonably amendments to rules 2a–7, 3a–7, 5b–3, investment in illiquid securities to not designed to prevent violations of the and 10f–3 under the Investment more than 10% of their total assets; (iii) Advisers Act (and the rules thereunder) Company Act, and rule 206(3)–(3)T in the event the money market fund’s by the adviser or any of its supervised under the Investment Advisers Act, investment adviser becomes aware of persons.79 An adviser seeking to rely on contain ‘‘collection of information’’ any new information about a portfolio rule 206(3)–3T, therefore, would have to requirements within the meaning of the security (or an issuer of a portfolio adopt and implement policies and Paperwork Reduction Act of 1995 security) that may suggest that the procedures that address the adviser’s (‘‘PRA’’).81 The Commission is security may not continue to present methodology for determining whether a submitting this proposal to the Office of minimal credit risks, the proposal security is investment grade quality. Management and Budget (‘‘OMB’’) for would amend rule 2a–7’s downgrade We request comment on our proposed review in accordance with 44 U.S.C. and default provisions to require a revised definition of ‘‘investment grade 3507(d) and 5 CFR 1320.11. The titles money market fund’s board of directors debt security.’’ Is it appropriate for us to for the collections of information are: to reassess promptly whether the allow advisers seeking to rely upon the ‘‘Rule 2a–7 under the Investment portfolio security continues to present rule to determine whether a security is Company Act of 1940, Money market minimal credit risks; and (iv) require a investment grade based on the criteria funds’’ (OMB Control No. 3235–0268); money market fund to notify the in the rule? Is there another definition ‘‘Rule 10f–3 under the Investment Commission of the purchase of a money of ‘‘investment grade’’ elsewhere in the Company Act of 1940, Exemption for market fund’s portfolio security by an federal securities laws that we should the Acquisition of Securities During the affiliated person in reliance on rule 17a– incorporate by reference into the rule? Existence of an Underwriting and 9 under the Investment Company Act.82 Are there alternative methods to ensure Selling Syndicate’’ (OMB Control No. The proposed amendments also would that advisers seeking to rely on the 3235–0226); and ‘‘Temporary rule for make conforming amendments to rule exception to the underwriting exclusion principal trades with certain advisory 2a–7’s record keeping and reporting do so only with respect to investment clients, rule 206(3)–3T’’ (OMB Control requirements.83 grade debt? Are there alternative or No. 3235–0630). There are currently no The proposed amendments to rule 2a– additional factors we should require an approved collections for rules 3a–7 and 7 would impose a new reporting adviser to consider in making its 5b–3, and the proposed amendments obligation on money market funds. The determination? In addition, we expect would not create any new collections. proposed reporting requirement to that advisers, in order to establish their We adopted the rules pursuant to the notify the Commission of the purchase eligibility to rely on the rule, would Investment Company Act and the of a money market fund’s portfolio document their determination that a Investment Advisers Act. securities by an affiliated person in security is investment grade quality, as Our proposed amendments are reliance on rule 17a–9 under the well as the process for making such a designed to address the risk that the Investment Company Act is designed to determination. Are we correct? Should reference to and required use of NRSRO assist Commission staff in overseeing we make such documentation an ratings in our rules: money market funds’ affiliated explicit requirement of the rule, or • Is interpreted by investors as an transactions that are otherwise amend rule 204–2 under the Advisers endorsement of the quality of the credit prohibited. If adopted, the new Act 80 (the books and records rule) to ratings issued by NRSROs; and collection of information would be require such documentation? • Encourages investors to place mandatory for money market funds. undue reliance on NRSRO ratings. Information submitted to the IV. Request for Comment An agency may not conduct or Commission related to a rule 17a–9 We request comment on the rule sponsor, and a person is not required to transaction would be accorded amendments proposed in this release. respond to, a collection of information confidential treatment to the extent We also request suggestions for unless it displays a currently valid permitted by law.84 additional changes to existing rules, and control number. Commission staff estimates that there A. Rule 2a–7 are 808 money market funds, all of 78 Proposed rule 206(3)–3T(c). Although the whom are subject to rule 2a–7.85 Of proposed amendment would no longer require a Rule 2a–7 under the Investment these money market funds, Commission security underwritten by an adviser or its control Company Act exempts money market person to be rated by NRSROs to be eligible under staff estimates that an average of 10 the rule, investment advisers could refer to ratings, funds from the Act’s valuation funds per year would be required to reports, analyses, and other assessments issued by requirements, permitting money market provide notice to the Commission of a NRSROs and other persons, for the purpose of funds to maintain stable share pricing, rule 17a–9 transaction, with the total evaluating credit risk and liquidity. subject to certain risk-limiting 79 Principal Trade Rule Release, supra note 70, at conditions. We propose to amend rule 82 nn.56–58 and accompanying text. In that See rule 17a–9. connection, an adviser seeking to rely on rule 2a–7 in four principal ways to: (i) Rely 83 See proposed rule 2a–7(c)(11). 206(3)–3T, as proposed to be amended, would need on money market fund boards of 84 See, e.g., 17 CFR 200.83. to adopt and implement policies and procedures directors (who usually rely on the 85 These include registered money market funds reasonably designed to ensure that the adviser’s funds’ advisers) to determine that each and series of registered money market funds. See methodology for determining investment grade Investment Company Institute, Trends in Mutual quality is consistent with the adviser’s legal portfolio instrument presents minimal Fund Investing April 2008, May 29, 2008. Available obligations. at http://www.ici.org/stats/latest/ 80 17 CFR 275.204–2. 81 44 U.S.C. 3501–3520. trends_04_08.html.

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annual responses per fund, on average, We request comment on whether would need to develop procedures and requiring .5 hours of an attorney’s time issuers currently have these procedures evaluate collateral securities, and the at a cost of $147.50.86 Given these in place. staff estimates this would involve a one- estimates, we estimate that the total time burden of 942 hours and an C. Rule 5b–3 annual burden of the proposed ongoing burden of 5,652 hours, at a cost amendments to rule 2a–7 for all money Rule 5b–3 under the Investment of approximately $1,294,308.91 market funds would be approximately 5 Company Act allows funds to treat the We seek comment on these estimates. hours and $1,475.87 acquisition of a repurchase agreement as If commenters believe these estimates an acquisition of securities We seek comment on these estimates. are not reasonable, we request they collateralizing the repurchase agreement If commenters believe these estimates provide data that would allow us to for purposes of sections 5(b)(1) and are not reasonable, we request they make more accurate estimates. 12(d)(3) of the Investment Company Act provide data that would allow us to under certain conditions. We propose to D. Rule 10f–3 make more accurate estimates. amend rule 5b–3 by requiring a fund’s Rule 10f–3, permits funds that are B. Rule 3a–7 board of directors, or its delegate, to affiliated with members of an determine that the securities underwriting syndicate to purchase Rule 3a–7 under the Investment collateralizing a repurchase agreement securities from the syndicate if certain Company Act excludes structured present minimum credit risks and are conditions are met. We are proposing to finance vehicles from the Act’s highly liquid.88 To that end, the fund’s amend the rule’s definition of ‘‘eligible definition of ‘‘investment company’’ board of directors, pursuant to rule 38a– municipal securities’’ to include credit subject to certain conditions. The 1 under the Investment Company Act, quality and liquidity requirements. conditions include the requirement that would have to develop procedures to Under the current rule, fund boards structured financings offered to the ensure that at the time the repurchase are required to approve procedures general public are rated by at least one agreement is entered into the securities regarding purchases made in reliance on NRSRO in one of the four highest rating meet the requirements for collateral the rule and to determine each quarter categories. The proposed amendments outlined in the amendments to the that all purchases were made in 92 would: (i) Eliminate rule 3a–7’s reliance proposed rule. These procedures are compliance with the procedures. on ratings by eliminating the exclusion necessary to make sure that the market Accordingly, the board currently for structured financings offered to the value of the collateral remains fairly reviews purchases of municipal general public; (ii) remove the reference stable and that the fund would be able securities made in reliance on the rule, to ratings downgrades in the section of to liquidate the collateral quickly in the and would continue to do so under our the rule that addresses substitution of event of a default.89 This collection of proposal. Pursuant to the amendments eligible assets; and (iii) amend the information would be mandatory for to the proposed rule, fund boards would portion of the rule that deals with funds that rely on rule 5b–3. Records of need to approve additional procedures safekeeping of assets. Commission staff information made in connection with for ensuring that municipal securities estimates that the proposal may result in this requirement would be required to meet the standards for credit quality and a new collection of information but any be maintained for inspection by liquidity. These procedures are collection of information would not Commission staff, but the collection necessary to eliminate any possibility have an associated burden. Although in would not otherwise be submitted to the that an affiliated underwriter may the condition in rule 3a–7 dealing with Commission. ‘‘unload’’ otherwise unmarketable the substitution of assets, the proposed The existing rule provides that securities on a fund. This collection of amendments would require the issuer to unrated securities are collateral if the information would be mandatory for have procedures to ensure that the fund’s board, or its delegate, makes the funds that rely on rule 10f–3. Records of acquisition or disposition of assets does determination that the unrated information made in connection with not adversely affect the full and timely securities are comparable to securities this requirement would be required to payment of the outstanding fixed that are rated in the highest rating be maintained for inspection by income securities, Commission staff category by the Requisite NRSROs.90 Commission staff, but the collection believes that almost all issuers currently Thus, fund boards may have existing would not otherwise be submitted to the have these procedures in place. procedures regarding credit quality Commission. determinations for unrated securities. In In our most recent PRA submission, 86 Based on information provided by money addition, as a matter of good business we estimated that approximately 350 market fund representatives, Commission staff practice, we believe that some funds funds engage in rule 10f–3 transactions estimates the cost would equal 0.5 hours of an each year. We further estimated that attorney’s time at $295 per hour (0.5 hours × $295 currently evaluate the credit risk and per hour = $147.50). The estimated hourly wages liquidity of rated securities. Thus, we each fund would, on average, take two used in this PRA analysis were derived from reports believe that most funds already have prepared by the Securities Industry and Financial procedures to evaluate collateral 91 Commission staff estimates that each fund Markets Association. See Securities Industry and board would incur a one-time burden of 2 hours to Financial Markets Association, Report on securities. As of March 31, 2008, 4,714 develop procedures for evaluating credit and Management and Professional Earnings in the investment companies were registered liquidity risks (471 boards × 2 hours = 942 hours). Securities Industry—2007 (2007), modified to with the Commission. Commission staff Commission staff believes that any incidental costs account for an 1800-hour work year and multiplied estimates that 90% of all registered incurred by boards of directors would be by 5.35 to account for bonuses, firm size, employee incorporated into funds’ overall board costs and benefits and overhead; and Securities Industry and investment companies, or 4,243 funds, would not add any particular costs. In addition, Financial Markets Association, Office Salaries in currently have procedures for evaluating staff estimates that a board delegate would spend the Securities Industry—2007 (2007), modified to collateral securities. Commission staff an average of 1 hour to evaluate the credit risks for account for an 1800-hour work year and multiplied therefore estimates that 471 funds the collateral for each of an average of 12 by 2.93 to account for bonuses, firm size, employee repurchase agreements each year (471 funds × 12 benefits and overhead. hours = 5,652 hours). Assuming the evaluation 87 These estimates are based on the following 88 Proposed rule 5b–3(c)(1)(iv)(C). would be performed by a senior business analyst (at calculations: (10 money market funds × .5 hours) = 89 See Rule 5b–3 Proposing Release, supra note $229 per hour), the total cost estimate would be 5 hours; (10 money market funds × 147.50) = 51, at text accompanying n.43. $1,294,308. $1,475. 90 Rule 5b–3(c)(1)(iv)(D). 92 Rule 10f–3(c)(10).

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hours to review and revise, as needed, incentives associated with underwriting and procedures under the proposal for written procedures for rule 10f–3 securities that may bias the advice being the estimated 185 advisers that would transactions. We believe that any provided or may lead the adviser to rely on the rule would be 1,850 hours.95 revisions funds would have to make to exert undue influence on its client’s We also estimate an average one-time comply with the proposed amendments decision to invest in the offering or the cost for the preparation of the policies would be incorporated in the two hours terms of that investment. Although the and procedures for approximately three of review. Accordingly, we do not rule does not call for any of the hours of outside legal counsel time of believe that the proposed amendments information collected to be provided to $1,200 per eligible adviser on average,96 to rule 10f–3 would change the burdens us, to the extent advisers include any of for a total of $222,000.97 currently approved for rule 10f–3. the information in a filing, such as Form We seek comment on these estimates. ADV, the information would not be kept F. Request for Comments If commenters believe these estimates confidential. We request comment on whether are not reasonable, we request they We anticipate that the burden these estimates are reasonable. Pursuant provide data that would allow us to associated with this collection would to 44 U.S.C. 3506(c)(2)(B), the make more accurate estimates. mostly be borne upfront as advisers Commission solicits comments in order develop their policies and procedures E. Rule 206(3)–3T to: (i) Evaluate whether the proposed for how to identify non-convertible collections of information are necessary Rule 206(3)–3T under the Advisers investment grade debt securities in for the proper performance of the Act establishes a temporary alternative connection with the credit risk and functions of the Commission, including means for investment advisers who are liquidity elements specified under the whether the information would have registered with the Commission as rule. This would require drafting the practical utility; (ii) evaluate the broker-dealers to meet the requirements policies and procedures, potentially accuracy of the Commission’s estimate of section 206(3) of the Advisers Act subjecting them to review of outside of the burden of the proposed when they act in a principal capacity in counsel, implementing them, and collections of information; (iii) transactions with certain of their explaining their contours in the determine whether there are ways to advisory clients. So long as each adviser’s Form ADV. enhance the quality, utility, and clarity condition of the rule is met, an eligible We estimate that the average burden of the information to be collected; and adviser may provide the transaction-by- for drafting the required policies and (iv) determine whether there are ways to transaction disclosure required under procedures for each eligible adviser that minimize the burden of the collections section 206(3) of the Advisers Act either chooses to rely on the rule in of information on those who are to orally or in writing. One condition of connection with underwritten securities respond, including through the use of the rule is that an adviser generally may in particular, would be approximately automated collection techniques or not rely on rule 206(3)–3T for principal 10 hours on average. Further, we expect other forms of information technology. trades of securities if the investment the drafting burden would be uniform Persons wishing to submit comments adviser or a person who controls, is with respect to each eligible adviser on the collection of information controlled by, or is under common regardless of how many individual non- requirements of the proposed control with the adviser (‘‘control discretionary advisory accounts that amendments should direct them to the person’’) is the issuer or is an adviser administers or seeks to engage Office of Management and Budget, underwriter of the security. The rule with in principal trading. As of June 1, Attention Desk Officer for the Securities contains an exception to this 2008, there were 639 advisers that were and Exchange Commission, Office of ‘‘underwritten securities’’ exclusion for eligible to rely on the temporary rule Information and Regulatory Affairs, trades in which the adviser or a control (i.e., also registered as broker-dealers), Room 10102, New Executive Office person is an underwriter of non- 409 of which indicate that they have Building, Washington, DC 20503, and convertible investment-grade debt non-discretionary advisory accounts.93 should send a copy to Florence E. securities. The proposed amendment to We estimate that 90% of those 409 Harmon, Acting Secretary, Securities rule 206(3)–3T would modify the advisers, or a total of 368 of those and Exchange Commission, 100 F definition of ‘‘investment grade debt advisers, rely on the rule.94 Of those, we Street, NE., Washington, DC 20549– security’’ to mean a non-convertible estimate that only 50% would seek to 1090, with reference to File No. S7–19– debt security that, at the time of sale, the engage in principal trades with clients 08. OMB is required to make a decision investment adviser has determined to be of securities they or a control person concerning the collections of subject to no greater than moderate underwrote. Thus, we estimate that the information between 30 and 60 days credit risk and sufficiently liquid that it total number of advisers who would rely after publication of this Release; can be sold at or near its carrying value on the non-convertible investment grade therefore a comment to OMB is best within a reasonably short period of debt exception to the ‘‘underwritten assured of having its full effect if OMB time. securities’’ exclusion under the rule receives it within 30 days after Under the proposed amendment to would be approximately 185. publication of this Release. Requests for rule 206(3)–3T, there is a single new Accordingly, we estimate that the materials submitted to OMB by the collection burden. Pursuant to its total burden for creating initial policies obligations under rule 206(4)–7 under Commission with regard to these the Advisers Act, an adviser seeking to 93 IARD data as of June 1, 2008, for Items 6.A(1) collections of information should be in rely on rule 206(3)–3T must adopt and and 5.F(2)(e) of Part 1A of Form ADV. 94 We anticipate that most investment advisers 95 This estimate is based on the following implement written policies and × that are dually registered as broker-dealers will calculation: 10 hours per adviser 185 eligible procedures reasonably designed to make use of the rule to engage in, at a minimum, advisers that will rely on the rule = 1,850 total prevent violations of the Advisers Act riskless principal transactions to limit the need for hours. that address the adviser’s methodology these advisers to process trades for their advisory 96 Outside legal fees are in addition to the for determining whether a security is clients with other broker-dealers. We estimate that projected 10 hours per adviser burden discussed in 10% of these advisers will determine that the costs note 95 and accompanying text. investment grade quality pursuant to the involved to comply with the rule are too significant 97 This estimate is based on the following definition. This collection of in relation to the benefits that the adviser, and their calculation: ($400 per hour × 3 hours × 185 advisers information is designed to minimize the clients, will enjoy. = $222,000).

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writing, refer to File No. S7–19–08, and remove any appearance that the B. Costs be submitted to the Securities and Commission has placed its imprimatur We anticipate that funds and Exchange Commission, Public Records on certain ratings. investment advisers could incur certain Management Office Room, 100 F Street, More specifically, the principal costs if the proposed amendments are NE., Washington, DC 20549–1110. benefit of the proposed amendments to adopted. Funds and investment advisers VI. Cost-Benefit Analysis rule 2a–7 would be to emphasize the may incur additional costs if they importance of money market funds The Commission is sensitive to the perform a more detailed and making independent assessments of comprehensive analysis before making costs and benefits imposed by its rules. credit risks. The benefit of the proposed We have identified certain costs and an investment decision. Such costs are amendments to rule 3a–7 would be to difficult to measure, but we believe that benefits of the proposed amendments emphasize that ratings are not necessary and request comment on all aspects of they would be justified by the benefits for accredited investors and qualified related to a more informed investment this cost-benefit analysis, including institutional buyers to protect identification and assessment of any decision as discussed in the previous themselves in evaluating structured section. In addition, the purpose of the costs and benefits not discussed in this finance vehicles issued under the rule. analysis. We seek comment and data on proposal is to emphasize that it is not Similarly, the benefit of the proposed the Commission’s intent to encourage the value of the benefits identified. We amendments to rules 5b–3 and 10f–3 also welcome comments on the investors to place undue reliance on would be to emphasize the importance NRSRO ratings in making investment accuracy of the cost estimates in each to funds that acquire repurchase section of this analysis, and request that decisions. In many cases, investors may agreements or securities in an affiliated commenters provide data that may be still choose to rely solely on NRSRO underwriting of making an independent relevant to these cost estimates. In ratings without incurring additional evaluation of the credit risks associated addition, we seek estimates and views costs. with the collateral or the underwritten regarding these costs and benefits for Additionally, in proposing to remove security, respectively. In addition, by particular covered institutions, the ratings requirements from our rules, moving away from a required reliance including small institutions, as well as we would broaden the set of potential on credit ratings in our rules, funds may any other costs or benefits that may investments available to funds and benefit by acquiring a wider range of result from the adoption of these investment advisers. For example, securities that present attractive proposed amendments. under the proposed amendments to rule As discussed above, the proposed rule investment opportunities and the 2a–7, money market funds would be amendments are designed to address the requisite level of credit risks, although able to invest in securities that have risk that the reference to and use of they do not meet the current rules’ received credit ratings outside of the NRSRO ratings in our rules is ratings requirements. The principal two highest short-term rating categories. interpreted by investors as an benefit of the proposed amendment to It is possible that some investors, funds, endorsement of the quality of the credit rule 206(3)–3T would be to allow or investment advisers may incur ratings issued by NRSROs, and may advisers to consider factors other than additional costs if funds and investment encourage investors to place undue only a rating by NRSROs of the credit advisers use this expanded discretion to reliance on the NRSRO ratings. The quality of a debt security for purposes purchase (or sell in the case of principal proposed amendments to rules 2a–7, of eligibility of the rule. Advisers would transactions under rule 206(3)–3T) risky 3a–7, 5b–3, and 10f–3 under the determine, based upon established or illiquid securities. We believe that Investment Company Act and rule criteria of whether the security presents these potential costs would be 206(3)–(3)T under the Investment no more than moderate credit risk and mitigated, however, by market forces, Advisers Act would eliminate the has sufficient liquidity, whether a including, in the case of money market reference to and requirement for the use security is investment grade for funds, investors’ desire to maintain the of NRSRO ratings in these rules. purposes of the rule. Investment principal value of their investments. advisers could, in addition to We request comment on these costs. A. Benefits considering NRSRO ratings, weigh Would eliminating the rating The Commission anticipates that one various factors and consider a security’s requirements from our rules affect the of the primary benefits of the proposed credit quality based on those qualitative amount or nature of risks that amendments, if adopted, would be the and quantitative elements it deems most investment companies and investment benefit to investors of reducing their relevant. An additional benefit of the advisers would be willing or able to possible undue reliance on NRSRO proposed amendment would be that take? We request comment on available ratings that could be caused by non-discretionary advisory clients of metrics to quantify these costs and any references to NRSROs in our rules. An advisers also registered with us as other costs the commenter may identify. over-reliance on ratings can inhibit broker-dealers may have easier access to Commenters are also requested to independent analysis and could a wider range of securities. This, in turn, identify sources of empirical data that possibly lead to investment decisions would increase liquidity in the markets could be used for the metrics they that are based on incomplete for these securities and promote capital propose. information. The purpose of the formation in these areas. These benefits Rule 2a–7. We anticipate that the proposed rule amendments is to are difficult to measure quantitatively, proposed amendments to rule 2a–7 encourage investors to examine more but qualitatively we believe the would impose minimal new costs on a than a single source of information in potential benefits are significant. portion of money market funds. In making an investment decision. We request comment on available general, we expect that money market Eliminating reliance on ratings in the metrics to quantify these benefits and fund boards of directors (or their Commission’s rules could also result in any other benefits the commenter may delegates) would incur no additional greater investor due diligence and identify. Commenters are also requested costs in making credit and liquidity risk investment analysis. In addition, the to identify sources of empirical data that determinations regarding portfolio Commission believes that eliminating could be used for the metrics they securities because the proposed rules the reliance on ratings in its rules would propose. would codify the determinations

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regarding credit risk and liquidity that asset-backed securities issued in require collateral other than cash or we believe boards (or their delegates) 2007).99 government securities to consist of make under the current rule. Some • Procedures for the acquisition or securities that the fund’s board of money market funds, however, would disposition of assets—Although we are directors (or its delegate) determines at incur costs to notify the Commission proposing to remove rule 3a–7’s rating the time the repurchase agreement is regarding rule 17a–9 transactions. For requirement, we anticipate that entered into: (i) Are sufficiently liquid purposes of the PRA analysis, structured financing vehicles would be that they can be sold at or near their Commission staff estimates that on rated by the NRSROs. We expect that carrying value within a reasonably short average 10 money market funds each market participants generally will period of time; (ii) are subject to no year are likely to provide notices continue to require that issuers obtain greater than minimal credit risk; and regarding rule 17a–9 transactions, at a ratings. Accordingly, as a matter of good (iii) the issuer of which has the highest cost of approximately $1,475.98 We business practice, Commission staff capacity to meet its financial request comment on these cost estimates that almost all issuers will obligations. The existing rule provides estimates. Do commenters foresee continue to have procedures in place to that collateral may consist of unrated additional or alternative costs if the ensure that the acquisition or securities if the fund’s board, or its proposed amendments to rule 2a–7 are disposition of assets does not adversely delegate, makes the determination that adopted? Have we accurately estimated affect the full and timely payments to the unrated securities are comparable to the number of money market funds that outstanding security holders. Thus, securities that are rated in the highest would have to report rule 17a–9 Commission staff believes that the rating category by the Requisite transactions annually? Have we proposed amendments would not NRSROs. Consistent with the accurately estimated money market impose any new cost burdens on requirements of rule 38a–1 under the funds’ potential costs in reporting rule issuers. Investment Company Act, we expect 17a–9 transactions? • Deposits in segregated accounts— that fund boards would have existing Rule 3a–7. Our proposed amendments We believe that almost all issuers have procedures regarding credit quality to rule 3a–7 under the Investment already taken the actions necessary for determinations for unrated securities. In Company Act may impose minor costs. cash flows to be deposited in segregated addition, as a matter of good business Specifically, retail investors who are accounts consistent with the full and practice, we believe that most funds able, because of the rule, to buy timely payment of outstanding fixed currently evaluate the credit risk and structured finance products would no income securities in meeting the current liquidity of rated securities. Thus, we longer be able to participate in the rule’s ratings requirement. Commission believe that most funds already have market. We understand that these staff does not anticipate any new costs procedures to evaluate collateral products generally are not marketed to associated with this provision of the securities. For purposes of the PRA retail investors, however, and the proposal. analysis, Commission staff estimates number of retail investors affected, if We request comment on these cost that 90% of all investment companies, there are any, may be quite low. The estimates. Are structured financings or 4,243 funds, currently have proposed amendments also may result offered to the retail market under rule procedures for evaluating collateral in more limited access to capital for 3a–7? If so, how large is the retail securities.101 Commission staff therefore issuers of structured financings to the market for these products? What costs estimates that 471 funds would need to extent there is a retail market that is would retail investors incur if the develop procedures and evaluate eliminated under the proposed proposed amendments are adopted? collateral securities, at an annual cost of amendments. All investors who hold How would retail investors sell or approximately $1,294,308.102 dispose of their current structured structured finance products bought Our proposed amendments to rule finance vehicle holdings if the proposed under the existing rule may bear some 5b–3 may result in another cost to amendments were adopted? How costs of reduced liquidity to the extent affected funds. Currently, NRSRO should any opportunity costs investors a retail market no longer exists because ratings are used in a provision of rule may face if the proposed amendments the pool of potential buyers in the 5b–3 that permits a fund to deem the are adopted be quantified? Would there secondary market may be reduced. acquisition of a ‘‘refunded security’’ as be any new costs associated with These costs are difficult to assess given the acquisition of the escrowed developing procedures for the that any existing market may be very government securities for purposes of acquisition or disposition of assets and small. section 5(b)(1)’s diversification Commission staff estimates the deposits in segregated accounts? 103 Rule 5b–3. Our proposed amendments requirements. Under this provision, a following potential costs associated debt security must satisfy certain with the proposed amendments to rule to rule 5b–3 under the Investment Company Act may impose costs on conditions to be considered a refunded 3a–7: security under the rule. One of these • Costs to retail investors—Retail funds that rely on the rule. Specifically, a fund’s board of directors, or its conditions is that an independent investors may incur certain opportunity certified public accountant must have costs under the proposal because they delegate, pursuant to rule 38a–1 under the Investment Company Act, would be certified to the escrow agent that the would not be able to purchase the escrowed securities would satisfy all securities of structured finance vehicles required to develop written policies and procedures to ensure that at the time the scheduled payments of principal, that rely on rule 3a–7. These potential interest, and applicable premiums on costs may be mitigated, however, repurchase agreement is entered into the collateral meets the requirements because we understand, based on staff 101 outlined in the amendments to the See supra text preceding note 90. experience that this market, if it exists, 102 proposed rule.100 The proposal would See supra note 91. represents a very small amount of all 103 Under the rule, a refunded security is defined structured finance products (perhaps as a debt security the principal and interest 99 less than 1% of the $306.7 billion in See Worldwide ABS Issuance, Asset-Backed payments of which are to be paid by U.S. Alert: The Weekly Update on Worldwide government securities that have been irrevocably Securitization (June 13, 2008), p. 11. placed in an escrow account and are pledged only 98 See supra note 87 and accompanying text. 100 Rule 38a–1(a). to the payment of the debt security. Rule 5b–3(c)(4).

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the refunded securities.104 This rule would be included in this annual staff estimates that the total costs would condition is not required, however, if review and revision. be $336,700.110 the refunded security has received a We request comment on these cost We request comment on these cost debt rating in the highest rating from an estimates. Have we accurately estimated estimates. Are the cost estimates NRSRO.105 the costs associated with the proposal’s accurate regarding the proposed procedures for making credit quality We propose to eliminate the required additional procedures for purchases of municipal securities? Do determinations? Do commenters foresee exception to the certification additional or alternative costs if the requirement for securities that have commenters foresee additional or alternative costs if the proposed proposed amendments to rule 206(3)–3T received the highest rating from an are adopted? NRSRO. As previously discussed, the amendments to rule 10f–3 are adopted? Commission included this exception Rule 206(3)–3T. In lieu of relying C. Request for Comment exclusively on credit ratings to because in rating refunded securities, We request comment on all aspects of determine eligibility for principal NRSROs typically require that an this cost-benefit analysis, including trading of underwritten securities under independent third party make the same comment as to whether the estimates we the rule, advisers would need to make determination.106 As previously noted, have used in our analysis are a determination of a security’s credit Commission staff believes that market reasonable. We welcome comment on risk and liquidity. This determination pressures currently require almost all any aspect of our analysis, including the issuers to have refunded securities would impose some costs on advisers. estimates and the assumptions we have certified by an independent accountant. Advisers seeking to rely on the described. In particular, we request To the extent that refunded securities exception would need to develop and comment as to any costs or benefits we are rated, and the rating agency requires implement procedures regarding their may not have considered here that eligibility determinations in accordance certification by an independent certified could result from the adoption of the with their responsibilities under public accountant, funds would not proposed amendments. We also request Advisers Act rule 206(4)–7. And, in incur additional costs in determining comment on the numerical estimates making their determinations, many whether a security had been certified in discussed above, and request comment advisers would expend resources accordance with the rule. Accordingly, on specific costs and benefits from beyond merely obtaining credit ratings we do not expect there would be a covered institutions that have from NRSROs, as is required under the change in current costs to issuers as a experienced any of the situations current rule. result of this proposal. analyzed above. Commission staff estimates that the We request comment on these cost costs of preparing the procedures for VII. Consideration of Promotion of estimates. Do commenters foresee making the determinations of credit Efficiency, Competition and Capital additional or alternative costs if the quality and liquidity under the rule Formation proposed amendments to rule 5b–3 are would be borne upfront. Once Investment Company Act section 2(c) adopted? Have we accurately estimated generated, reviewed, and implemented and Investment Advisers Act section current and future costs for collateral by eligible advisers, advisers would be 202(c) require us, when engaging in procedures? Are we correct in able to follow them for purposes of rulemaking where we are required to estimating that funds are unlikely to making further determinations of consider or determine whether an action incur any additional costs in eligibility for underwritten securities is necessary or appropriate in the public determining that a refunded security has under the requirements of the rule. For interest, to consider, in addition to the received an accountant certification? purposes of the PRA analysis, our staff protection of investors, whether the Rule 10f–3. We do not believe that our has estimated the number of hours and action will promote efficiency, proposed amendments to rule 10f–3 costs the average adviser would spend competition, and capital formation.111 If would impose costs on funds that rely in the initial preparation of its policies adopted, the Commission believes that on rule 10f–3 to purchase municipal and procedures.108 Based on those these amendments would reduce the securities. Under the current rule, fund estimates, our staff estimates that potential for over-reliance on ratings, boards are required to adopt procedures advisers would incur costs of and thereby promote investor regarding purchases made in reliance on approximately $1,820 on average per protection. The Commission anticipates the rule and to determine each quarter adviser, including legal consultation.109 that these proposed amendments would that all purchases were made in Assuming there are 185 eligible advisers improve investors’ ability to make compliance with the procedures.107 (i.e., advisers that also are registered informed investment decisions, which Commission staff estimates that these broker-dealers) that would prepare would therefore lead to increased costs would not change. As noted above relevant policies and procedures, our efficiency and competitiveness of the U.S. capital markets. The Commission in our analysis of the PRA, we currently 108 expects that this increased market estimate that boards spend, on average, See supra note 97 and accompanying text. We efficiency and investor confidence also two hours each year to review and estimate the following burdens and/or costs: (i) for drafting the policies and procedures, approximately may encourage more efficient capital revise their procedures for acquiring 10 hours on average per eligible adviser, of which formation. securities in compliance with the we estimate there are 185, for a total of 1,850 hours; Efficiency. As discussed above, the conditions in rule 10f–3. We believe and (ii) for utilizing outside legal professionals in the preparation of the policies and procedures, proposed amendments could result in that any changes funds would make to approximately $1,200 on average per eligible additional costs for investment their procedures in order to comply adviser, for a total of $222,000. companies and registered investment with the proposed amendments to the 109 We estimate that the internal preparation advisers, which could affect the function will most likely be performed by a compliance clerk at $62 per hour. $62 per hour × 104 Rule 5b–3(c)(4)(iii). 10 hours = $620 on average per adviser of internal 110 This estimate is based on the following 105 Id. costs for preparation of the policies and procedures. calculation: $1,820 on average per adviser × 185 106 See rule 5b–3 Proposing Release, supra note $620 on average per adviser of internal costs + advisers = $336,700 in total costs for preparation of 51. $1,200 on average per adviser of costs for outside the policies and procedures. 107 Rule 10f–3(c)(10). legal counsel = $1,820 on average per adviser. 111 15 U.S.C. 80a–2(c) and 15 U.S.C. 80b–2(c).

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efficiency of these institutions. The not otherwise seek ratings. The to provide empirical data and other proposed amendments to rule 2a–7 may proposed amendments to rule 3a–7, may factual support for their views to the slightly decrease the efficiency of impact certain issuers of structured extent possible. certain money market funds, to the finance vehicles that, for example, may VIII. Regulatory Flexibility Act extent that any funds may be relying specialize in the retail market if they Certification exclusively on credit ratings to make had some competitive advantage, such current minimal credit risk as a distribution channel. Eliminating Section 3(a) of the Regulatory determinations. We believe that the exclusion for structured finance Flexibility Act of 1980 112 (‘‘RFA’’) independently generated assessments of vehicles offered to retail investors may requires the Commission to undertake credit risks are important, however, and make these issuers less competitive in an initial regulatory flexibility analysis a slight decrease in efficiency may be this market. The proposed amendments (‘‘IRFA’’) of the proposed rule warranted. Our proposed amendments to rule 206(3)–3T may promote amendments on small entities unless to rule 3a–7 may reduce market competition because, by providing a the Commission certifies that the rule, if efficiency by limiting the ability of retail more subjective standard for the adopted, would not have a significant investors who invest in structured underwritten securities exception, they economic impact on a substantial financing vehicles. However, the may increase the alternative sources of number of small entities.113 Pursuant to proposal to eliminate sales of structured the security for the client without Section 605(b) of the RFA, the finance vehicles to the retail market diminishing the adviser’s best execution Commission hereby certifies that the would clearly delineate investors who obligations, thereby potentially proposed amendments to rules 2a–7 and are eligible to buy these products, which improving price. We do not believe the 3a–7 under the Investment Company may increase market efficiency. proposed amendments to rules 5b–3 or Act, would not, if adopted, have a Ratings provide a standard for retail 10f–3 would significantly affect significant economic impact on a investors, funds, and advisers alike. By competition because these amendments substantial number of small entities. eliminating reliance on ratings, the would apply to all money market funds The proposal would: proposed amendments may have a and other funds. (a) Amend rule 2a–7 under the negative impact on efficiency by Capital formation. We do not believe Investment Company Act to: (i) Rely on eliminating an objective standard in the proposed amendments to the rules money market fund boards of directors credit quality determinations. The would have a significant effect on (who usually rely on the funds’ proposed amendments also could capital formation. To the extent advisers) to determine that each decrease efficiency to the extent that potential money market fund investors portfolio instrument presents minimal funds acquired securities that do not may react positively to money market credit risks, and whether the security is meet the particular ratings requirement funds’ independent credit risk a ‘‘First Tier Security’’ or a ‘‘Second Tier and that result in the concerns that the assessments and management of risks, Security’’; (ii) add a portfolio liquidity rating requirements were designed to we believe any effect the proposed requirement to the rule that would address. On the other hand, the amendments to rule 2a–7 may have on require that money market funds hold proposed amendments may result in capital formation would be positive. securities that are sufficiently liquid to some increased market efficiency by Our proposed amendments to rule 3a– meet reasonably foreseeable shareholder affording funds access to securities that 7 would limit capital formation for redemptions, and expressly limit their do not meet the rating requirements in issuers that offer structured finance investment in illiquid securities to not the current rules, but that would satisfy products to retail investors in reliance more than 10% of the their total assets; the credit risk and liquidity standards in on rule 3a–7. The proposed (iii) in the event the money market the proposed amendments. We do not amendments would have no effect on fund’s portfolio manager becomes aware anticipate that the proposed the ability of issuers who rely on rule of any new information about a portfolio amendments to rules 2a–7, 5b–3, and 3a–7 to offer structured financings to security (or an issuer of a portfolio 10f–3 would have other impacts on the accredited investors and qualified security) that may suggest that the efficiency of funds that rely on those institutional buyers to raise capital. We security may not continue to present rules. The proposed amendments to rule do not expect that the proposed minimal credit risks, the proposal 206(3)–3T may increase efficiency by amendments to rules 5b–3 or 10f–3 would amend rule 2a–7’s downgrade affording clients access to certain would have an adverse effect on capital and default provisions to require a investment grade debt securities formation. If the proposed amendments money market fund’s board of directors underwritten by the adviser or its to rule 206(3)–3T have any effect on to reassess promptly whether the affiliate that they might not have had capital formation, it is likely to be portfolio security continues to present access to under the standard requiring positive, although indirect. Providing a minimal credit risks; and (iv) require a NRSRO ratings. means for advisers, consistent with their money market fund to notify the Competition. If investors believe the fiduciary obligations, to offer their Commission of the purchase of a money proposed amendments to rule 2a–7 clients underwritten investment grade market fund’s portfolio securities by an would make the rule less rigorous in securities sold as principal, might serve affiliated person in reliance on rule 17a– part because of the loss of an to broaden the potential universe of 9 under the Investment Company Act. independent third party check on purchasers of securities, opening the The proposed amendments also would money market fund investments, they door to greater investor participation in make conforming amendments to rule may turn to other cash investment the securities markets with a potential 2a–7’s record keeping and reporting vehicles they perceive as offering greater positive effect on capital formation. requirements; and protections. In addition, investors in We request comment on all aspects of (b) Amend rule 3a–7 under the money market funds may unduly rely this analysis, and specifically request Investment Company Act to: (i) on ratings of the money market funds comment on any effect the proposed Eliminate the rule’s reliance on ratings themselves as a proxy for the quality amendments might have on the by eliminating the exclusion for and safety of these funds’ portfolio promotion of efficiency, competition, securities. This may potentially increase and capital formation that we have not 112 5 U.S.C. 603(a). costs to money market funds that would considered. Commenters are requested 113 5 U.S.C. 605(b).

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structured financings offered to the • encourages investors to place undue with clients of securities they or a general public; (ii) remove the reference reliance on the NRSRO ratings. control person underwrote. to ratings downgrades in the section of C. Legal Basis E. Reporting, Recordkeeping, and Other the rule that addresses substitution of Compliance Requirements eligible assets; and (iii) amend the The Commission is proposing portion of the rule that deals with amendments to rule 5b–3 under the The proposed amendments to rule safekeeping of assets. authority set forth in sections 6(c) and 5b–3 would require collateral for Based on information in filings 38(a) of the Investment Company Act repurchase agreements other than cash submitted to the Commission, we [15 U.S.C. 80a–6(c) and 80a–37(a)]. The or government securities to have believe that there are no money market Commission is proposing amendments minimal credit risk and be highly funds that are small entities.114 In to rule 10f–3 under the authority set liquid. Specifically, the proposal would addition, we are not aware of any forth in sections 10(f), 31(a) and 38(a) of require collateral other than cash or issuers that currently rely on rule 3a–7 the Investment Company Act [15 U.S.C. government securities to consist of that are small entities. For these reasons, 80a–10(f), 80a–30(a) and 80a–37(a)]. The securities that the fund’s board of the Commission believes the proposed Commission is proposing amendments directors (or its delegate) determines at amendments to rules 2a–7 and 3a–7 to rule 206(3)–(3)T under the authority the time the repurchase agreement is under the Investment Company Act set forth in sections 206A and 211(a) of entered into: (i) Are sufficiently liquid would not, if adopted, have a significant the Investment Advisers Act [15 U.S.C. that they can be sold at or near their economic impact on a substantial 80b–6A, 80b–11(a)]. carrying value within a reasonably short period of time; (ii) are subject to no number of small entities. D. Small Entities Subject to the greater than minimal credit risk, and We encourage written comments Proposed Rule Amendments regarding this certification. The (iii) the issuer of which has the highest Commission solicits comment as to The proposed amendments to rules capacity to meet its financial whether the proposed amendments to 5b–3 and 10f–3 under the Investment obligations.119 The proposed rules 2a–7 and 3a–7 could have an effect Company Act and rule 206(3)–(3)T amendments to rule 10f–3 would amend on small entities that has not been under the Investment Advisers Act the rule’s definition of ‘‘eligible considered. We request that commenters would affect funds and registered municipal security’’ to mean securities investment advisers, including entities describe the nature of any impact on that are sufficiently liquid that they can that are considered to be a small small entities and provide empirical be sold at or near their carrying value business or small organization data to support the extent of such within a reasonably short period of (collectively, ‘‘small entity’’) for impact. time. In addition, the securities would purposes of the RFA. Under the have to be either: (i) subject to no greater IX. Initial Regulatory Flexibility Investment Company Act, a fund is than moderate credit risk; or (ii) if they Analysis considered a small entity if it, together are less seasoned securities, subject to a This IRFA has been prepared in with other funds in the same group of minimal or low amount of credit risk.120 accordance with 5 U.S.C. 603. It relates related funds, has net assets of $50 The proposed amendments to rule to proposed amendments to rules 5b–3 million or less as of the end of its most 206(3)–3T would impose a new 115 and 10f–3 under the Investment recent fiscal year. Under the compliance requirement in connection Company Act and rule 206(3)–(3)T Investment Advisers Act, a small entity with advisers’ obligations relating to under the Investment Advisers Act. The is an investment adviser that: (i) written policies and procedures under proposed amendments would remove Manages less than $25 million in assets; rule 206(4)–7 under the Advisers Act. references to and the required use of (ii) has total assets of less than $5 Small entities registered with the NRSRO ratings from these rules. million on the last day of its most recent Commission as investment companies fiscal year; and (iii) does not control, is or investment advisers seeking to rely A. Reasons for the Proposed Action not controlled by, and is not under on each of the rules as it is proposed to As discussed above, the proposed rule common control with another be amended would be subject to the amendments are designed to address the investment adviser that manages $25 same requirements as larger entities. risk that the reference to and use of million or more in assets, or any person With respect to rule 206(3)–3T, in each NRSRO ratings in our rules is (other than a natural person) that has case, however, an investment adviser, interpreted by investors as an had total assets of $5 million or more on whether large or small, would only be endorsement of the quality of the credit the last day of the most recent fiscal able to rely on the rule as it is proposed 116 ratings issued by NRSROs, and may year. Based on Commission filings, to be amended if it also is registered encourage investors to place undue we estimate that 122 investment with us as a broker-dealer. As noted reliance on the NRSRO ratings. companies may be considered small above, we estimate that 19 small entities entities. We also estimate that as of June are advisers that are also registered as B. Objectives of the Proposed Action 1, 2008, 572 investment advisers were broker-dealers and therefore only those Our proposed amendments are small entities.117 The Commission small entities are eligible to rely on the designed to address the risk that assumes for purposes of this IRFA that rule. In developing the requirements of reference to and use of NRSRO ratings 19 of these small entities (those that are the proposed amendments to each of in our rules: both investment advisers and broker- rules 5b–3 and 10f–3 under the • Is interpreted by investors as an dealers) could rely on rule 206(3)–3T,118 Investment Company Act, and rule endorsement of the quality of the credit and that 50% of these, or 10 advisers, 206(3)–3T under the Investment ratings issued by NRSROs; and will seek to engage in principal trades Advisers Act, we considered the extent to which the proposed amendments 114 Under the Investment Company Act, an 115 17 CFR 270.0–10. 116 would have a significant impact on a investment company is considered a small entity if 17 CFR 275.0–7. substantial number of small entities. it, together with other investment companies in the 117 IARD data as of June 1, 2008, for Item 12 of same group of related investment companies, have Part 1A of Form ADV. net assets of $50 million or less as of the end of 118 IARD data as of June 1, 2008, for Items 6.A(1) 119 Proposed rule 5b–3(c)(1)(iv)(C). its most recent fiscal year. See 17 CFR 270.0–10. and 12 of Part 1A of Form ADV. 120 Proposed rule 10f–3(a)(3).

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We encourage written comments underwriting. We preliminarily believe, the proposed amendments. Commenters regarding this analysis. We solicit therefore, that it is important for the are asked to describe the nature of any comments as to whether the proposed credit quality and liquidity impact and provide empirical data amendments could have any effect that considerations required by the proposed supporting the extent of the impact. we have not considered. We also request amendments to rules 5b–3 and 10f–3 to Such comments will be considered in that commenters describe the nature of apply to all funds relying on the rules, the preparation of the Final Regulatory any impact on small entities and not just those that are not considered Flexibility Analysis, if the proposed provide empirical data to support the small entities. Further consolidation or amendments are adopted, and will be extent of the impact. simplification of the proposals for funds placed in the same public file as that are small entities would be comments on the proposed F. Duplicative, Overlapping, or inconsistent with the Commission’s amendments. Comments should be Conflicting Federal Rules goals of fostering investor protection. submitted to the Commission at the Rule 31a–1 under the Act requires the With respect to rule 206(3)–3T, the addresses previously indicated. retention of ledger accounts for each Commission preliminarily believes that portfolio security and each person special compliance or reporting X. Statutory Authority through which a portfolio transaction is requirements or timetables for small The Commission is proposing effected. Although some of the entities, or an exemption from coverage amendments to rules 2a–7, 3a–7, and procedures under the proposed for small entities may create the risk 5b–3 under the authority set forth in amendments to rules 5b–3 and 10f–3 that the investors who are advised by sections 6(c) and 38(a) of the Investment may overlap with information in the and effect securities transactions in Company Act [15 U.S.C. 80a–6(c), 80a– ledgers, the rule 5b–3 and 10f–3 underwritten securities through such 37(a)]. The Commission is proposing procedures would contain additional small entities may not receive adequate amendments to rule 10f–3 under the information specifically related to the protection combined with access to authority set forth in sections 10(f), concerns underlying these rules. securities. We believe, therefore, that it 31(a) and 38(a) of the Investment The Commission believes that there is important for the investment quality Company Act [15 U.S.C. 80a–10(f), 80a– are no rules that duplicate or conflict consideration required by the proposed 30(a), 80a–37(a)]. The Commission is with the proposed amendments to rule amendments to apply to all advisers, not proposing amendments to rule 206(3)– 206(3)–3T. just those that are not considered small (3)T under the authority set forth in G. Significant Alternatives entities. Further consolidation or sections 206A and 211(a) of the simplification of the proposals for Investment Advisers Act [15 U.S.C. The RFA directs us to consider investment advisers that are small 80b–6A, 80b–11(a)]. significant alternatives that would entities would be inconsistent with the List of Subjects accomplish our stated objective, while Commission’s goals of fostering investor minimizing any significant adverse protection. 17 CFR Part 270 impact on small entities. Alternatives in We have endeavored through the Investment companies, Reporting and this category would include: (i) proposed amendments to rules 5b–3, recordkeeping requirements, Securities. Establishing different compliance or 10f–3 and 206(3)–3T to minimize the reporting standards or timetables that regulatory burden on all entities eligible 17 CFR Part 275 take into account the resources available to rely on the respective rules, including Reporting and recordkeeping to small entities; (ii) clarifying, small entities, while meeting our requirements, Securities. consolidating, or simplifying regulatory objectives. It was our goal to compliance requirements under the rule ensure that eligible small entities may Text of Proposed Rule Amendments for small entities; (iii) using benefit from the Commission’s approach For reasons set out in the preamble, performance rather than design to the proposed amendments to the Title 17, Chapter II of the Code of standards; and (iv) exempting small same degree as other funds or eligible Federal Regulations is proposed to be entities from coverage of the rule, or any advisers, as appropriate. amended as follows: part of the rule. We request comment on whether it is With respect to rules 5b–3 and 10f–3, feasible or necessary for small entities to PART 270—RULES AND the Commission preliminarily believes have special requirements or timetables REGULATIONS, INVESTMENT that special compliance requirements or for, or exemptions from, compliance COMPANY ACT OF 1940 timetables for small entities, or an with the proposed amendments to each 1. The authority citation for part 270 exemption from coverage for small of the rules. In particular, could any of continues to read in part as follows: entities, may create a risk that those the proposed amendments be altered in Authority: 15 U.S.C. 80a–1 et seq., 80a– entities could acquire repurchase order to ease the regulatory burden on agreements with collateral that may not 34(d), 80a–37, and 80a–39, unless otherwise small entities, without sacrificing the noted. retain its market value or liquidity in effectiveness of the proposed * * * * * the event of a counterparty default. We amendments? do not expect that the requirement that 2. Section 270.2a–7 is amended by: a. Revising paragraphs (a)(10), (a)(12), refunded securities be certified by a H. Request for Comments and (a)(17); certified public accountant would result We encourage the submission of b. Removing paragraph (a)(19); in any costs or burdens for either small comments with respect to any aspect of c. Redesignating paragraph (a)(20) as or large entities. With respect to rule this IRFA. In particular, we request paragraph (a)(19); 10f–3, we preliminarily believe that comments regarding: (i) The number of d. Removing paragraph (a)(21); special compliance requirements or small entities that may be affected by e. Redesignating paragraphs (a)(22) timetables for small entities, or an the proposed amendments; (ii) the through (a)(27) as paragraphs (a)(20) exemption from coverage for small existence or nature of the potential through (a)(25); entities, may put those entities at greater impact of the proposed amendments on f. Removing paragraph (a)(28); risk for purchasing unmarketable small entities discussed in the analysis; g. Redesignating paragraph (a)(29) as municipal securities in an affiliated and (iii) how to quantify the impact of paragraph (a)(26);

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h. In paragraphs (b)(1) and (b)(2), defaulted securities and events of (D) The fund’s board of directors revising the phrase ‘‘(c)(2), (c)(3), and insolvency) or (c)(7)(ii)’’ to read determines that the Underlying Security (c)(4)’’ to read ‘‘(c)(2), (c)(3), (c)(4), and ‘‘paragraphs (c)(7)(ii) (with respect to or any Guarantee of such security (c)(5)’’; defaulted securities and events of presents minimal credit risks (which i. Revising paragraphs (c)(3)(i), insolvency) or (c)(8)(ii)’’; and determination must be based on factors (c)(3)(iii), and (c)(3)(iv)(C); r. Revising the introductory text of pertaining to credit quality). j. Adding paragraph (c)(3)(iv)(D); paragraph (e) and in paragraph (e)(2) * * * * * k. In paragraph (c)(4)(v), revising the revising the phrase ‘‘paragraph (c)(6)(iii) (5) Portfolio Liquidity. The money phrase ‘‘requirements of paragraphs of this section’’ to read ‘‘paragraph market fund shall hold securities that (c)(4) and (c)(5)’’ to read ‘‘requirements (c)(7)(iii) of this section’’. are sufficiently liquid to meet of paragraphs (c)(4) and (c)(6)’’; These additions and revisions read as reasonably foreseeable shareholder l. Redesignating paragraphs (c)(5) follows: through (c)(10) as paragraphs (c)(6) redemptions in light of the fund’s through (c)(11); § 270.2a–7 Money market funds. obligations under section 22(e) of the m. Adding new paragraph (c)(5); (a) * * * Act (15 U.S.C. 80a–22(e)) and any n. In newly redesignated paragraph (10) Eligible Security means a security commitments it has made to (c)(6), revising the phrase ‘‘(pursuant to with a remaining maturity of 397 shareholders; Provided, however, paragraphs (c)(9)(ii) and (c)(10)(vi) of calendar days or less that the fund’s immediately after the Acquisition of any this section)’’ to read ‘‘(pursuant to board of directors determines presents security, a money market fund shall not paragraphs (c)(10)(ii) and (c)(11)(vi) of minimal credit risks (which have invested more than ten percent of this section)’’; determination must be based on factors its Total Assets in securities that are not o. In newly redesignated paragraph pertaining to credit quality and the Liquid Securities. (c)(7): issuer’s ability to meet its short-term * * * * * i. revising the paragraph heading; financial obligations). (7) Monitoring, Defaults and Other ii. revising paragraph (i); * * * * * Events. iii. in the introductory text of (12) First Tier Security means a paragraph (ii), revising the phrase (i) Monitoring. In the event the money security the issuer of which the fund’s market fund’s investment adviser (or ‘‘paragraphs (c)(6)(ii)(A) through (D)’’ to board of directors has determined has read ‘‘paragraphs (c)(7)(ii)(A) through any person to whom the fund’s board of the highest capacity to meet its short- directors has delegated portfolio (C)’’; term financial obligations. iv. adding ‘‘or’’ at the end of management responsibilities) becomes * * * * * aware of any information about a paragraph (ii)(B); (17) Liquid Security means a security v. removing paragraph (ii)(C) and portfolio security or an issuer of a that can be sold or disposed of in the portfolio security that may suggest that redesignating paragraph (ii)(D) as ordinary course of business within paragraph (ii)(C); the security may not continue to present seven days at approximately the value minimal credit risks, the board of vi. revising paragraph (iii); ascribed to it by the money market fund. vii. revising the heading to paragraph directors shall reassess promptly (iv); and * * * * * whether such security continues to viii. in paragraph (iv), revising the (c) * * * present minimal credit risks and shall phrase ‘‘For purposes of paragraphs (3) * * * cause the fund to take such action as the (c)(6)(ii) and (iii)’’ to read ‘‘For purposes (i) General. The money market fund board of directors determines is in the of paragraphs (c)(7)(ii) and (iii)’’; shall limit its portfolio investments to best interests of the money market fund p. Revising newly designated those United States Dollar-Denominated and its shareholders. paragraph (c)(10)(ii); securities that are at the time of * * * * * Acquisition Eligible Securities. q. In newly redesignated paragraph (iii) Notice to the Commission. The (c)(11): * * * * * money market fund shall promptly i. in paragraph (i), revising the phrase (iii) Securities Subject to Guarantees. notify the Commission by electronic ‘‘paragraphs (c)(6) through (c)(9)’’ to A security that is subject to a Guarantee mail directed to the Director of the read ‘‘paragraphs (c)(7) through (c)(10)’’; may be determined to be an Eligible Division of Investment Management of ii. revising paragraph (iii); Security or a First Tier Security based any: iii. in paragraph (iv), revising the solely on whether the Guarantee is an phrase ‘‘paragraph (c)(9)(iii) of this Eligible Security or First Tier Security, (A) Default with respect to one or section’’ to read ‘‘paragraph (c)(10)(iii) as the case may be; Provided, however, more portfolio securities (other than an of this section’’; that the issuer of the Guarantee, or immaterial default unrelated to the iv. in the introductory text of another institution, has undertaken to financial condition of the issuer) or an paragraph (v), in the first sentence, promptly notify the holder of the Event of Insolvency with respect to the revising ‘‘paragraph (c)(9)(iv) of this security in the event the Guarantee is issuer of the security or any Demand section’’ to read ‘‘paragraph (c)(10)(iv) of substituted with another Guarantee (if Feature or Guarantee to which it is this section’’; such substitution is permissible under subject, where immediately before v. in paragraph (vi), revising the the terms of the Guarantee). default the securities (or the securities phrase ‘‘paragraph (c)(9)(ii)’’ to read (iv) * * * subject to the Demand Feature or 1 ‘‘paragraph (c)(10)(ii)’’; (C) The issuer of the Demand Feature, Guarantee) accounted for ⁄2 of 1 percent vi. in paragraph (vii), in the first or another institution, has undertaken to or more of a money market fund’s Total sentence, revising the phrase ‘‘this promptly notify the holder of the Assets, of such fact and the actions the paragraph (c)(10)’’ to read ‘‘this security in the event the Demand money market fund intends to take in paragraph (c)(11)’’; and Feature is substituted with another response to such situation; or vii. in paragraph (vii), in the second Demand Feature (if such substitution is (B) Purchase of a security from the sentence, revising the phrase permissible under the terms of the fund by an affiliated person or promoter ‘‘paragraphs (c)(6)(ii) (with respect to Demand Feature); and of or principal underwriter for the fund

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or an affiliated person of such a person e. Revising paragraph (a)(3)(ii); and scheduled payments of principal, in reliance on § 270.17a–9. f. Revising paragraph (a)(4)(iii). interest and applicable premiums on the * * * * * The revisions read as follows: Refunded Securities. (iv) Defaults for Purposes of § 270.3a–7 Issuers of asset-backed * * * * * Paragraphs (c)(7) (ii) and (iii).* * * securities. 5. Section 270.10f–3 is amended by: * * * * * (a) * * * a. Revising paragraph (a)(3); (10) * * * (2) Securities sold by the issuer or any b. Removing paragraph (a)(5); and (ii) Securities Subject to Demand underwriter thereof are: c. Redesignating paragraphs (a)(6), Features or Guarantees. In the case of a (a)(7), and (a)(8) as paragraphs (a)(5), security subject to one or more Demand * * * * * (3) * * * (a)(6), and (a)(7). Features or Guarantees that the fund’s (ii) The issuer has procedures to The revision reads as follows: board of directors has determined that ensure that the acquisition or the fund is not relying on to determine disposition does not adversely affect the § 270.10f–3 Exemption for the acquisition the quality (pursuant to paragraph (c)(3) of securities during the existence of an full and timely payment of the of this section), maturity (pursuant to underwriting or selling syndicate. outstanding fixed-income securities; paragraph (d) of this section) or and (a) * * * liquidity (pursuant to paragraph (c)(5) of (3) Eligible Municipal Securities this section) of the security subject to * * * * * (4) * * * means ‘‘municipal securities,’’ as the Demand Feature or Guarantee, defined in section 3(a)(29) of the written procedures shall require (iii) Takes actions necessary for the cash flows derived from eligible assets Securities Exchange Act of 1934 (15 periodic evaluation of such U.S.C. 78c(a)(29)), that are sufficiently determination. for the benefit of the holders of fixed- income securities to be deposited liquid that they can be sold at or near * * * * * periodically in a segregated account their carrying value within a reasonably (11) * * * consistent with the full and timely short period of time and either: (iii) Credit Risk Analysis. For a period (i) Are subject to no greater than of not less than three years from the date payment of the outstanding fixed- income securities. moderate credit risk; or that the credit risks of a portfolio (ii) If the issuer of the municipal security were most recently reviewed, a * * * * * 4. Section 270.5b–3 is amended by: securities, or the entity supplying the written record of the determination that revenues or other payments from which a portfolio security presents minimal a. Adding ‘‘or’’ at the end of paragraph (c)(1)(iv)(B); the issue is to be paid, has been in credit risks used to determine the status continuous operation for less than three of the security as an Eligible Security b. Revising paragraph (c)(1)(iv)(C); c. Removing paragraph (c)(1)(iv)(D); years, including the operation of any shall be maintained and preserved in an predecessors, the securities are subject easily accessible place. d. Revising paragraph (c)(4)(iii); e. Removing paragraphs (c)(5), (c)(6), to a minimal or low amount of credit * * * * * and (c)(8); and risk. (e) Delegation. The money market f. Redesignating paragraph (c)(7) as * * * * * fund’s board of directors may delegate paragraph (c)(5). to the fund’s investment adviser or The revisions read as follows: PART 275—RULES AND officers the responsibility to make any REGULATIONS, INVESTMENT determination required to be made by § 270.5b–3 Acquisition of repurchase ADVISERS ACT OF 1940 the board of directors under this section agreement or refunded security treated as (other than the determinations required acquisition of underlying securities. 6. The authority citation for part 275 by paragraphs (c)(1) (board findings); * * * * * continues to read in part as follows: (c)(7)(ii) (defaults and other events); (c) * * * Authority: 15 U.S.C. 80b–2(a)(11)(G), 80b– (c)(8)(i) (general required procedures: (1) * * * 2(a)(17), 80b–3, 80b–4, 80b–4a, 80b–6(4), Amortized Cost Method); (c)(8)(ii)(A) (iv) * * * 80b–6a, and 80b–11, unless otherwise noted. (shadow pricing), (B) (prompt (C) Securities that the investment consideration of deviation), and (C) company’s board of directors, or its * * * * * (material dilution or unfair results); and delegate, determines at the time the 7. Section 275.206(3)–3T is amended (c)(9) (required procedures: Penny repurchase agreement is entered into: by revising paragraph (c) to read as Rounding Method) of this section) (1 ) Are sufficiently liquid that they follows: can be sold at or near their carrying provided: § 275.206(3)–3T Temporary rule for * * * * * value within a reasonably short period principal trades with certain advisory 3. Section 270.3a–7 is amended by: of time; clients. (2) Are subject to no greater than a. Revising paragraph (a)(2) * * * * * introductory text; minimal credit risk; and (3) The issuer of which has the (c) For purposes of paragraph (a)(2) of b. In paragraph (a)(2)(i) revising the this section, an investment grade debt phrase ‘‘Any fixed-income securities highest capacity to meet its financial obligations; and security means a non-convertible debt may be sold’’ to read ‘‘Any fixed-income security that, at the time of sale, the securities sold’’; * * * * * investment adviser has determined to be (4) * * * c. In paragraph (a)(2)(ii), revising the subject to no greater than moderate (iii) At the time the deposited phrase ‘‘Any securities may be sold’’ to credit risk and sufficiently liquid that it securities are placed in the escrow read ‘‘Any securities sold’’; can be sold at or near its carrying value d. In the undesignated paragraph after account, or at the time a substitution of within a reasonably short period of paragraph (a)(2)(ii), revise the phrase the deposited securities is made, an time. ‘‘persons specified in paragraphs (a)(2) independent certified public accountant (i) and (ii) of this section’’ to read has certified to the escrow agent that the * * * * * ‘‘persons specified in this section’’; deposited securities will satisfy all By the Commission.

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Dated: July 1, 2008. Florence E. Harmon, Acting Secretary. [FR Doc. E8–15282 Filed 7–10–08; 8:45 am] BILLING CODE 8010–01–P

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Part V

Securities and Exchange Commission 17 CFR Parts 200 and 241 Commission Guidance and Amendment to the Rules Relating to Organization and Program Management Concerning Proposed Rule Changes Filed by Self- Regulatory Organizations; Final Rule

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SECURITIES AND EXCHANGE their proposed rule changes with the the Commission again amended Rule COMMISSION Commission. Commission review and 19b–4 to allow for the listing and the public comment process are trading of certain derivative securities 17 CFR Parts 200 and 241 intended, among other things, to help products without prior submission of a [Release No. 34–58092] ensure that SROs carry out the purposes proposed rule change under section of the Exchange Act.3 19(b).9 The 1998 rulemaking was Commission Guidance and National securities exchanges intended to speed the introduction of Amendment to the Rules Relating to registered under section 6(a) of the new derivative securities products and Organization and Program Exchange Act 4 face increased enable exchanges to remain competitive Management Concerning Proposed competitive pressures from entities that with foreign and over-the-counter Rule Changes Filed by Self-Regulatory trade the same or similar financial derivatives markets that are not subject Organizations instruments, such as foreign exchanges, to section 19(b). futures exchanges,5 electronic In 2001, the Commission proposed AGENCY: Securities and Exchange communications networks (‘‘ECNs’’), comprehensive changes to the SRO rule Commission. and alternative trading systems filing process.10 The Commission ACTION: Final rule and interpretation. (‘‘ATSs’’). These competitors, however, proposed to completely replace Rule can change their trading rules or trade 19b–4, the rule governing the SUMMARY: The Securities and Exchange new products with greater ease and requirements for SRO rule filings, with Commission (‘‘Commission’’) is without the required Commission proposed new Rule 19b–6. Proposed providing guidance regarding a rule review.6 Rule 19b–6, among other things, would under the Securities Exchange Act of The Commission previously has have defined terms used in proposed 1934 (‘‘Exchange Act’’) concerning stated its belief that, ‘‘investors are best Rule 19b–6 to allow most exchange filings with respect to proposed rule served by a regulatory structure that trading rules, other than proposals changes of self-regulatory organizations facilitates fair and vigorous competition involving fundamental market structure (‘‘SROs’’) that the Commission expects among market participants and fosters changes, to be immediately effective will streamline the process by which investor protection’’ and that, upon filing with the Commission SROs file proposed rule changes with ‘‘[e]nhancing the SROs’’ ability to pursuant to section 19(b)(3)(A) of the the Commission and result in a broader implement and to respond quickly to Exchange Act. The Commission also range of rule changes qualifying for changes in the marketplace should proposed related changes that would immediate effectiveness. Further, the encourage innovation and better have imposed a number of new Commission is amending its rules to services to investors. * * *’’ 7 obligations on SROs filing proposed rule delegate authority to the Director of the Consequently, the Commission changes with the Commission. For Division of Trading and Markets. These periodically has revised the SRO rule example, in proposed Rule 19b–6, the actions are intended to facilitate more filing requirements to balance the needs Commission would have required, expeditious handling of proposed rule of the exchanges in a competitive among other things, that a senior SRO changes submitted by SROs pursuant to financial marketplace against official certify the accuracy and Exchange Act section 19(b). maintaining the statutorily required completeness of the proposal. The Commission oversight of the SROs and DATES: Effective Date: July 11, 2008. Commission also proposed to eliminate the SRO rule change process. the 30-day operational date and the five- FOR FURTHER INFORMATION CONTACT: In 1994, the Commission adopted day pre-filing requirement for non- Marlon Quintanilla Paz, Senior Counsel amendments to Rule 19b–4 to allow controversial rule filings. to the Director, at (202) 551–5703, or certain non-controversial proposed rule The Commission received 21 Richard Holley III, Senior Special changes and proposed rule changes for comment letters on proposed Rule 19b– Counsel, at (202) 551–5614, Division of minor systems changes to ‘‘become 6, many of which opposed various Trading and Markets, Securities and immediately effective’’ upon filing and aspects of the proposal, though for Exchange Commission, 100 F Street, without Commission approval.8 In 1998, widely divergent reasons. Four NE., Washington, DC 20549–6628. commenters explicitly supported the I. Introduction clearing agencies, and the Municipal Securities proposal to make certain trading rules Rulemaking Board (‘‘MSRB’’). effective upon filing.11 Several SROs 3 Self-regulation, with oversight by the See Section 19 of the Exchange Act, 15 U.S.C. believed that the proposal provided Commission, is a basic premise of the 78s. See also Market 2000: An Examination Of Current Equity Market Developments, Study VI, only minor benefits that were Exchange Act. For example, Congress Division of Market Regulation, U.S. Securities and potentially outweighed by new recognized the regulatory role of Exchange Commission (January 1994). burdensome requirements.12 A few national securities exchanges in section 4 15 U.S.C. 78f(a). 1 5 Certain futures exchanges are also registered as 6 of the Exchange Act, requiring all 9 national securities exchanges under Section 6(g) of See Securities Exchange Act Release No. 40761 existing securities exchanges to register the Exchange Act, 15 U.S.C. 78f(g), solely for the (December 8, 1998), 63 FR 70952 (December 22, with the Commission and to function as purpose of trading security futures products. 1998) (S7–13–98) (‘‘New Products Adopting Release’’). self-regulatory organizations. SROs 6 While a security futures exchange registered 10 (such as exchanges, registered national under Section 6(g) of the Exchange Act is required See Rule 19b–6 Proposing Release, supra note to file certain proposed rule changes with the 7. securities associations, and clearing Commission, few such filings must receive 11 See Comment letters from Nasdaq (dated April agencies) are subject to various Commission approval under Section 19(b)(2). If 6, 2001); the Pacific Exchange (dated April 24, requirements under the Exchange Act, they must be filed at all, most may be filed under 2001); Bloomberg Tradebook LLC (dated April 5, including the requirement in section Section 19(b)(3)(A) of the Exchange Act. See 15 2001); and the Chicago Stock Exchange (dated April 2 U.S.C. 78f(g)(4)(B). 5, 2001). 19(b) and Rule 19b–4 thereunder to file 7 Securities Exchange Act Release No. 43860 12 See, e.g., Comment letters from The Options (January 19, 2001), 66 FR 8912 (February 5, 2001) Clearing Corporation (dated April 6, 2001); the 1 15 U.S.C. 78f. (S7–03–01) (‘‘Rule 19b–6 Proposing Release’’). Philadelphia Stock Exchange (dated April 6, 2001); 2 15 U.S.C. 78s(b) and 17 CFR 240.19b–4, 8 See Securities Exchange Act Release No. 35123 the Chicago Stock Exchange (dated April 5, 2001); respectively. See also Form 19b–4. The rule filing (December 20, 1994), 59 FR 66692 (December 28, the International Securities Exchange (dated March requirements of Section 19(b) also apply to other 1994) (S7–17–94) (‘‘Non-Controversial Rule 23, 2001); and the Chicago Board Options Exchange SROs, such as national securities associations, Adopting Release’’). (dated April 11, 2001).

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commenters believed that the category commenters expressed support for Commission any proposed rule of trading rules eligible for immediate Commission issuance of notice of a change,21 which must be ‘‘accompanied effectiveness was too narrow, or that proposed rule change within 10 by a concise general statement of the more objective standards were needed business days or such longer period as basis and purpose of such proposed rule to determine what qualifies as a trading the SRO consents.19 change’’ and be submitted electronically rule.13 In contrast, other commenters The Commission has considered on Form 19b–4, in accordance with the were concerned that the proposal might thoroughly all of these comments. The General Instructions thereto.22 Exhibit 1 reduce the opportunity to comment on Commission is not taking action today of Form 19b–4 requires an SRO to proposed rule changes,14 and that the on proposed Rule 19b–6 nor with regard prepare the notice of its proposed rule Commission might be hesitant to to any of the other related changes,20 but change for publication in the Federal abrogate immediately effective filings.15 the Commission’s action in this release Register.23 A proposed rule change may Several commenters explicitly opposed is consistent with the objectives not take effect unless it is approved by making certain types of trading rules underlying the Rule 19b–6 proposal and the Commission 24 or becomes immediately effective, noting that such takes into account the varying views immediately effective upon filing rule changes may have particular expressed in the comments. pursuant to section 19(b)(3)(A) of the importance to the public or have a major The Commission notes that the Exchange Act.25 impact on market participants.16 Several guidance and rule adopted herein do A. Proposals Subject to Commission commenters also opposed the proposal not alter the existing legal obligations Approval to remove the operative delay 17 from for SROs filing proposed rule changes. Rule 19b–4(f)(6).18 In addition, several The Commission today is not modifying For those proposals that are subject to or replacing Rule 19b–4, nor is it Commission approval, section 19(b)(2) 13 See, e.g., Comment letters from Credit Suisse imposing related obligations on SROs of the Exchange Act specifies the First Boston (dated March 26, 2001); the with regard to the rule filing process standards and time periods for International Securities Exchange (dated March 23, and, therefore, the Commission believes Commission action either to approve a 2001); the Philadelphia Stock Exchange (dated April 6, 2001); the Pacific Exchange (dated April 24, that the additional requirements proposed rule change or to institute 2001); Nasdaq (dated April 6, 2001); the Chicago proposed in the Rule 19b–6 Proposing proceedings to determine whether a Board Options Exchange (dated April 11, 2001); the Release are not necessary at this time. Chicago Stock Exchange (dated April 5, 2001); and As discussed below, the guidance in 21 Section 19(b)(1) of the Exchange Act defines a the Mercatus Center of George Mason University this release addresses a much narrower ‘‘proposed rule change’’ as ‘‘any proposed rule, or (dated April 9, 2001). any proposed change in, addition to, or deletion 14 See, e.g., Comment letters from the Investment part of the SRO rule filing process and from the rules of’’ an SRO. 15 U.S.C. 78s(b)(1). Company Institute (dated April 6, 2001); Bloomberg imposes no new obligations on SROs. Section 3(a)(27) of the Exchange Act defines ‘‘rules’’ Tradebook LLC (dated April 5, 2001); Brunelle & The Commission believes that it is to include ‘‘the constitution, articles of Hadjikow (dated April 4, 2001); the Consumer now appropriate to issue guidance incorporation, bylaws, and rules, or instruments Federation of America (dated April 6, 2001); the corresponding to the foregoing * * * and such of Securities Industry Association (dated April 6, related to the filing of certain the stated policies, practices, and interpretations of 2001); and the American Council of Life Insurers immediately effective proposed rule such exchange, association, or clearing agency as (dated April 10, 2001). See discussion below in changes by SROs and to adopt a rule the Commission, by rule, may determine to be Section III.A.2(b) regarding the importance of amendment designed to streamline necessary or appropriate in the public interest or for public comment to the SRO proposed rule change the protection of investors to be deemed to be rules process. further the SRO proposed rule change of such exchange, association, or clearing agency.’’ 15 See, e.g., Comment letters from Credit Suisse process. Specifically, the Commission 15 U.S.C. 78c(a)(27). First Boston (dated March 26, 2001); the Council of today is (1) providing an interpretation 22 17 CFR 249.819. Among other things, the Institutional Investors (dated March 26, 2001); the of the Commission’s views as to which General Instructions to Form 19b–4 specify that an Investment Company Institute (dated April 6, 2001); SRO rule filings could be filed as SRO’s proposal must be clear and complete before and the Consumer Federation of America (dated it will be accepted as filed by the Commission. See April 6, 2001). See discussion below in Section IV immediately effective and (2) modifying General Instruction B to Form 19b–4 (‘‘This form, regarding abrogation of immediately effective only its own internal processes. including the exhibits, is intended to elicit proposals. information necessary for the public to provide 16 See, e.g., Comment letters from the Securities II. Background on the Current Rule meaningful comment on the proposed rule change Industry Association (dated April 6, 2001) and Filing Process and for the Commission to determine whether the Brunelle & Hadjikow (dated April 4, 2001). These proposed rule change is consistent with the commenters believed that entities that are familiar Section 19(b)(1) of the Exchange Act requirements of the [Exchange] Act and the rules with the technology and operation of SRO trading requires an SRO to file with the and regulations thereunder * * * The [SRO] must systems should be given an opportunity to provide all the information called for by the form, comment on proposed changes to such systems. See SRO’s operations. See Comment letter from the including the exhibits, and must present the Section III.A.2(b), below (‘‘Opportunity for Public State of Wisconsin Investment Board (dated March information in a clear and comprehensible manner Comment With Regard to Immediately Effective 28, 2001). * * * Any filing that does not comply with the Rule Filings’’). requirements of this form may be returned to the 19 See Comment letters from Credit Suisse First 17 [SRO] at any time before the issuance of the notice A proposed rule change designated Boston (dated March 26, 2001); the Chicago Stock of filing. Any filing so returned shall for all immediately effective normally becomes operative Exchange (dated April 5, 2001); the Philadelphia purposes be deemed not to have been filed with the upon filing with the Commission, except for a Stock Exchange (dated April 6, 2001); Nasdaq Commission’’). See also Rule 0–3 under the proposal submitted pursuant to Rule 19b–4(f)(6), (dated April 6, 2001); the Securities Industry which becomes operative 30 days after the date of Association (dated April 6, 2001); the Pacific Exchange Act, 17 CFR 240.0–3 (‘‘The date on which filing with the Commission or such shorter time as Exchange (dated April 24, 2001); the Government papers are actually received by the Commission the Commission may designate if consistent with Securities Clearing Corporation (dated March 20, shall be the date of filing thereof if all of the the protection of investors and the public interest. 2001); NASD Dispute Resolution and NASD requirements with respect to the filing have been 17 CFR 240.19b–4(f)(6)(iii). Regulation (dated May 3, 2001). One commenter complied with. * * *’’). 18 See, e.g., Comment letters from the Investment suggested that the Commission publish notice of a 23 If the conditions of Rule 19b–4 and Form 19b– Company Institute (dated April 6, 2001); the State proposed rule change within ten calendar days, not 4 are satisfied, a proposed rule change submitted of Wisconsin Investment Board (dated March 28, business days, and recommended that there be a electronically via the Commission’s Electronic 2001); Brunelle & Hadjikow (dated April 4, 2001); mechanism to ensure compliance with the Form Filing System on or before 5:30 p.m. Eastern the Consumer Federation of America (dated April requirement. See Comment letter from the Chicago Time on a business day is deemed ‘‘filed’’ on that 6, 2001); the Securities Industry Association (dated Board Options Exchange (dated April 11, 2001). business day, and all filings submitted after 5:30 April 6, 2001); and the American Council of Life 20 For example, the Commission is taking no p.m. Eastern Time are deemed filed on the next Insurers (dated April 10, 2001). One commenter further action at this time on the Rule 19b–6 business day. See Rule 19b–4(k), 17 CFR 240.19b– suggested that a delay between the effective and proposal to require certifications or to remove the 4(k). operative date would allow the Commission to pre-filing or operative delay from Rule 19b–4(f)(6) 24 See 15 U.S.C. 78s(b)(2). abrogate a rule with a minimum of disruption to an under the Exchange Act. 25 15 U.S.C. 78s(b)(3)(A).

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proposed rule change should be (2) Establishing or changing a due, 19(b)(3)(A).32 An immediately effective disapproved.26 After expiration of the fee, or other charge applicable to a filing becomes operative upon filing applicable comment period and due member; with the Commission, except for a consideration of any comment letters (3) Concerned solely with the proposal submitted pursuant to Rule received, the Commission shall approve administration of the self-regulatory 19b–4(f)(6), which becomes operative 30 a proposed rule change if it finds such organization; days after the date of filing with the proposed rule change is consistent with (4) Effecting a change in an existing Commission or such shorter time as the the requirements of the Exchange Act service of a registered clearing agency Commission may designate if consistent and the rules and regulations that: (i) Does not adversely affect the with the protection of investors and the thereunder applicable to the SRO.27 The safeguarding of securities or funds in public interest.33 Commission shall disapprove a the custody or control of the clearing Further, the Exchange Act provides proposed rule change if it cannot make agency or for which it is responsible; that at any time within 60 days of the such a finding.28 and (ii) does not significantly affect the date of filing of a proposed rule change respective rights or obligations of the designated for immediate effectiveness B. Immediately Effective Proposals clearing agency or persons using the under section 19(b)(3)(A) of the Section 19(b)(3)(A) of the Exchange service; Exchange Act and Rule 19b–4(f) Act provides that, notwithstanding the (5) Effecting a change in an existing thereunder, the Commission summarily provisions of section 19(b)(2), a order-entry or trading system of a self- may abrogate the proposed rule change proposed rule change may take effect regulatory organization that: (i) Does not and require that the SRO re-file the upon filing with the Commission if significantly affect the protection of proposal under section 19(b)(2) of the designated by the SRO as: investors or the public interest; (ii) does Exchange Act ‘‘if it appears to the (i) Constituting a stated policy, not impose any significant burden on Commission that such action is practice, or interpretation with respect competition; and (iii) does not have the necessary or appropriate in the public to the meaning, administration, or effect of limiting the access to or interest, for the protection of investors, enforcement of an existing rule of the availability of the system; or or otherwise in furtherance of the self-regulatory organization; (6) Effecting a change that: (i) Does purposes of [the Exchange Act].’’ 34 (ii) Establishing or changing a due, not significantly affect the protection of investors or the public interest; (ii) does III. Interpretive Guidance on the Rule fee, or other charge imposed by the self- not impose any significant burden on Filing Process regulatory organization; or competition; and (iii) by its terms, does (iii) Concerned solely with the The Commission today takes several not become operative for 30 days after administration of the self-regulatory actions, discussed in greater detail the date of the filing, or such shorter organization or other matters which the below, intended to facilitate more time as the Commission may designate Commission, by rule * * * may specify expeditious handling of proposed rule if consistent with the protection of ***.29 changes submitted by SROs. The investors and the public interest; Section 19(b)(3)(A)(iii) of the Commission is providing interpretive provided that the self-regulatory Exchange Act grants the Commission guidance regarding the range of organization has given the Commission proposed changes to exchange trading authority to expand the scope of written notice of its intent to file the proposed rule changes entitled to rules that qualify for immediate proposed rule change, along with a brief effectiveness pursuant to Exchange Act qualify for immediate effectiveness to description and text of the proposed other matters which the Commission, by Rule 19b–4(f)(6) as not significantly rule change, at least five business days affecting the protection of investors or rule, consistent with the public interest prior to the date of filing of the and the purposes of section 19(b) of the the public interest and not imposing any proposed rule change (the ‘‘pre-filing’’), 35 Exchange Act, may specify. Rule 19b– significant burden on competition. 30 or such shorter time as designated by The Commission anticipates that the 4(f) under the Exchange Act specifies the Commission.31 the following types of proposed rule guidance will result in exchanges filing As with a proposed rule change filed a broader range of proposed changes to changes that may take effect upon filing pursuant to section 19(b)(2) of the with the Commission pursuant to trading rules for immediate Exchange Act, the Commission effectiveness under Rule 19b–4(f)(6). section 19(b)(3)(A) if properly publishes notice in the Federal Register designated by an SRO as: of a proposed rule change designated for 32 An SRO must designate the basis for immediate (1) Constituting a stated policy, immediate effectiveness under section effectiveness of the proposed rule change in Item practice, or interpretation with respect 7 of Form 19b–4. See Item 7 of Form 19b–4 (‘‘Basis to the meaning, administration, or 31 The five-day period commences from the date for Summary Effectiveness Pursuant to Section enforcement of an existing rule; the Commission receives the SRO’s pre-filing. The 19(b)(3)(A) or for Accelerated Effectiveness pre-filing requirement was designed to serve as an Pursuant to Section 19(b)(2) or Section opportunity for Commission staff to ‘‘discuss with 19(b)(7)(D)’’). 26 See 15 U.S.C. 78s(b)(2). The Commission must 33 the SRO whether there exists an adequate basis With respect to amendments to filings either approve or institute disapproval proceedings upon which the proposed rule change may properly designated for immediate effectiveness pursuant to within thirty-five days of the date of publication of qualify’’ for immediate effectiveness under Rule Rule 19b–4(f)(6), the Commission has stated that notice of the filing in the Federal Register, or 19b–4(f)(6), and allows the SRO to ‘‘elicit guidance ‘‘any substantive amendment would trigger a new within such longer period as the Commission may from Commission staff to help the SRO identify 30-day period, assuming the changes do not render designate (up to ninety days of such date if it finds those aspects of a proposed rule change that the the filing ineligible for this category.’’ Non- such longer period to be appropriate and publishes Commission deems important’’ in order to ‘‘help Controversial Rule Adopting Release, supra note 8, its reasons for so finding) or as to which the SRO the SRO articulate in its subsequent filing the 59 FR at 66695. The Commission staff, however, has consents. See id. purpose and effects of the proposed rule change, ‘‘discretion to accept editorial changes without 27 The Commission may approve a proposed rule which in turn should further facilitate and expedite triggering a new 30-day period.’’ Id. Such proposals change on an accelerated basis prior to the 30th day the filing process.’’ Securities Exchange Act Release should not require extensive amendments, since after publication of the notice in the Federal No. 34140 (June 1, 1994), 59 FR 29393, 29395 (June ‘‘[a] filing requiring further substantive Register if it finds good cause and publishes its 7, 1994) (S7–17–94) (‘‘Non-Controversial Rule amendments may indicate that it is not appropriate reasons for so doing. See id. Proposing Release’’). The Commission also notes for the expedited treatment afforded by the 28 See id. that it has enhanced its electronic system through noncontroversial category.’’ Id. 29 15 U.S.C. 78s(b)(3)(A). which SROs file proposed rule changes to allow the 34 15 U.S.C. 78s(b)(3)(C). 30 17 CFR 240.19b–4(f). electronic submission of pre-filings. 35 See Rule 19b–4(f)(6), 17 CFR 240.19b–4(f)(6).

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Additionally, the Commission is significant burden on competition,’’ 39 operation of an SRO’s trading systems providing guidance on proposed rule and thus qualify for immediate qualify for immediate effectiveness than changes relating to an SRO’s minor rule effectiveness under Rule 19b–4(f)(6), the are currently filed as such. A number of violation plan (‘‘MRVP’’) and ‘‘copycat’’ Commission is providing the proposed rule changes that could filings relating to SRO rules other than interpretive guidance set forth in this qualify for immediate effectiveness trading rules. The guidance provided release. under section 19(b)(3)(A) of the herein as it relates to proposed changes Exchange Act are filed, instead, ‘‘regular 1. Previous Commission Guidance on to trading rules is directed at SROs that way’’ under section 19(b)(2), thus Immediately Effective Proposals operate trading systems (i.e., the requiring the Commission to issue a national securities exchanges). The As discussed above, Rule 19b–4(f)(6) notice and an approval order.42 additional guidance is applicable to all permits a proposed rule change to The Commission believes that a SROs, including exchanges, national become immediately effective if, among proposed trading rule change securities associations, clearing other things, it is properly designated by appropriately may be filed as an agencies, and the MSRB. an SRO as effecting a change that does immediately effective rule so long as Further, as discussed in section V not significantly affect the protection of each policy issue raised by the proposed below, the Commission is adopting an investors or the public interest, and trading rule (i) has been considered amendment to Rule 200.30–3(a)(12) does not impose any significant burden previously by the Commission when the relating to the delegation of authority to on competition. Further, an Commission approved another the Director of the Division of Trading immediately effective rule pursuant to exchange’s trading rule (that was subject to notice and comment) pursuant to and Markets regarding the publication Rule 19b–4(f)(6), by its terms, may not Section 19(b)(2) of the Exchange Act, of proposed rule changes.36 Amended become operative for 30 days after the and (ii) the rule change resolves such Rule 200.30–3(a)(12) applies with regard date of the filing, or such shorter time policy issue in a manner consistent with to all SRO rule filings. as the Commission may designate, if consistent with the protection of such prior approval. The Commission A. Interpretive Guidance on investors and the public interest, believes that filing such proposed rule Immediately Effective Proposed Rule provided that the SRO has given the changes for immediate effectiveness not Changes Commission written notice of its intent only will reduce the time before which to file the proposed rule change, along an exchange could implement its new The national securities exchanges’ with a brief description and text of the rule or modify an existing one, but also need to implement quickly new trading proposed rule change, at least five will eliminate the need for the rules has become increasingly critical, business days prior to the date of filing Commission to issue both a notice and particularly given the evolving role of of the proposed rule change, or such an approval order for each such filing. securities exchanges, innovations in shorter time as designated by the The Commission notes that certain U.S. and cross-border trading, and the Commission. types of proposals remain ineligible for increasingly competitive financial When adding paragraph (f)(6) to Rule immediate effectiveness under Rule marketplace. Specifically, the 19b–4 in 1994, the Commission referred 19b–4(f)(6). For example, proposals that Commission recognizes that the national to it as the ‘‘noncontroversial category’’ introduce potentially anti-competitive securities exchanges registered under and noted that it was intended to or unfairly discriminatory aspects to an section 6(a) of the Exchange Act 37 face accommodate proposed rule changes SRO’s operation, or otherwise conflict increased competitive pressures from that were generally ‘‘less likely to with stated Commission policy, would entities that trade the same or similar engender adverse comments or require not be eligible for immediate financial instruments—such as foreign the degree of review attendant with effectiveness since they would not meet exchanges, futures exchanges, ECNs, more controversial filings.’’ 40 the standard of Rule 19b–4(f)(6) and the and ATSs. These competitors can Accordingly, the Commission interpretation. Similarly, proposals that change their trading rules or trade new contemplated that proposals eligible for would substantially alter an exchange’s products with greater ease, and without filing under paragraph (f)(6) of Rule market structure would continue to be filing them with the Commission. 19b–4 would generally be ‘‘inherently ineligible for immediate effectiveness. Accordingly, to inform exchanges’ simple and concise’’ and ‘‘otherwise (a) Examples of Trading Rules Eligible understanding of the range of exchange require little in the way of extended for Immediate Effectiveness trading rules eligible for immediate review or analysis by the Below is a partial list of the types of effectiveness and to encourage Commission.’’ 41 exchanges to consider filing a broader trading rules that the Commission range of proposed changes to trading 2. Interpretation of Rule 19b–4(f)(6) for believes are appropriate for filing as rules that do not ‘‘significantly affect the Rule Proposals Involving Exchange immediately effective rule changes protection of investors or the public Trading Rules under this interpretation. The interest’’ 38 or do not ‘‘impose any The rule filing process, by which Commission emphasizes that this is a national securities exchanges are partial—not exhaustive—list, designed 36 To assist the Commission in processing required to file their proposed rule to assist exchanges in determining the proposed rule changes expeditiously, the changes with the Commission, currently types of proposed trading rule changes Commission emphasizes the obligation of each SRO allows the exchanges to implement that are appropriately filed as to prepare proposed rule changes that are clear and immediately effective. complete. See supra note 22 and accompanying many of their proposed rule changes • text. The Commission encourages SROs to devote relating to trading rules on an expedited Protection of Limit Orders. In sufficient resources to the rule filing process to basis. The Commission believes that approving exchange trading rules, the assure quality work product to enable the more rule filings pertaining to the Commission to evaluate efficiently whether the 42 The Commission understands, however, that proposed rule change is consistent with the there may be a variety of reasons why an SRO may Exchange Act and applicable rules and regulations 39 17 CFR 240.19b–4(f)(6)(ii). file a proposed rule change under Section 19(b)(2), thereunder as well as the SRO’s own rules. 40 Non-Controversial Rule Adopting Release, even though the rule change would have been 37 15 U.S.C. 78f(a). supra note 8, 59 FR at 66696. appropriately filed as an immediately effective rule 38 17 CFR 240.19b–4(f)(6)(i). 41 Id. at 66695. filing.

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Commission carefully reviews whether compete for preferenced order flow. A are eligible for immediate effectiveness they protect limit orders that are proposal to allow broker-dealers to under Rule 19b–4(f)(6). displayed on an exchange’s book, since execute preferenced orders on an (b) Opportunity for Public Comment limit orders contribute to price exchange is eligible for immediate With Regard to Immediately Effective discovery, provide liquidity to the effectiveness if the rule change provides Rule Filings market, and may narrow the quoted other market participants a reasonable 43 spread. A proposed trading rule opportunity to interact with preferenced Although the Commission is change is eligible for immediate orders and the proposal does not encouraging the exchanges to designate effectiveness if the proposal facilitates impinge upon the incentive for market additional proposed changes in the trading of public customer orders, or participants to post competitive category of trading rules as immediately otherwise enables them to interact with quotes.45 effective, the Commission is not order flow on the exchange on an equitable basis (such as price/time • Trading Hours. With respect to minimizing the importance of receiving priority). trading hours, the Commission believes public comments on proposed rule • Market Maker Obligations. The that proposals to modify the trading changes relating to trading rules. The Commission carefully reviews special hours of an exchange, provided there is Commission emphasizes that it advantages provided to market makers a sufficient degree of quotation and last- continues to believe that the public when it considers exchange trading rule sale transparency during any extended interest is served by offering the public, proposals. Market makers can play an hours, also are eligible for immediate investors, SRO members, and other market participants the opportunity to important role in providing liquidity to effectiveness under Rule 19b–4(f)(6).46 comment on SRO rule proposals. The the market, and an exchange can • appropriately reward them for that as Conforming Rules to Approved Commission considers all comments it well as the services they provide to the Changes to NMS Plan or Commission receives on each proposed rule change, exchange’s market, so long as the Rule. The Commission believes that and makes available all comments to the rewards are not disproportionate to the proposed rule changes to implement applicable SRO for its consideration as services provided.44 For example, a provisions of an approved national well. proposed trading rule change that market system plan (such as the Options 47 Comments on an immediately strengthens the market while providing Linkage Plan ) or a Commission rule effective filing help the Commission benefits to market makers is eligible for analyze the impact of the filing and immediate effectiveness if the benefits 45 See, e.g., Securities Exchange Act Release No. evaluate whether to abrogate it.48 conferred are offset by corresponding 37406 (March 29, 1996), 61 FR 15322 (April 5, 1996) (SR–CSE–95–03) (‘‘The Commission has Comments also help the exchange responsibilities to the market that concluded that preferencing, as supplemented by address legitimate concerns, in a provide customer trading interest a net the order handling policies, is not necessarily manner that does not delay benefit. inconsistent with the attainment of best execution implementation of the proposed rule • Preferenced Order Flow. The of customer orders, the maintenance of fair and change, while still preserving the Commission recognizes that exchanges orderly markets, or the protection of investors and the public interest under Section 6(b)(5) of the Commission’s ability to act to abrogate Act.’’). See also, e.g., Securities Exchange Act when appropriate. For example, in 43 See Securities Exchange Act Release No. Release Nos. 50819 (December 8, 2004), 69 FR 37619A (September 6, 1996), 61 FR 48290 (S7–30– 75093, 75097 (December 15, 2004) (SR–ISE–2003– response to a comment letter that raises 95) (adopting Rule 11Ac1–4) (‘‘The Commission 06) (order approving the establishment of rules to significant concerns with an believes that limit orders are a valuable component implement a price improvement mechanism) (‘‘The immediately effective rule change, an of price discovery. The uniform display of such Commission * * * has expressed its concern that exchange could consider revising its orders will encourage tighter, deeper, and more proposals by options exchanges that guarantee a efficient markets.’’). significant portion of orders to any market rule (by submitting either another 44 See, e.g., Securities Exchange Act Release Nos. participant could erode the incentive to display immediately effective proposal or a 54580 (October 6, 2006), 71 FR 60781, 60782 aggressively priced quotes. Thus, the Commission proposed rule change that requires (October 16, 2006) (SR–ISE–2006–40) (order must weigh whether the proposed participation notice and comment) in a manner that approving the establishment of ISE’s Second right would so substantially reduce the ability of Market); 54238 (July 28, 2006), 71 FR 44758, 44761 other market participants to trade with an order that reasonably addresses the issues raised (August 7, 2006) (SR–NYSE Arca–2006–13) it would reduce price competition.’’). by the commenter.49 As described (‘‘Market Makers receive certain benefits for 46 The Commission notes, however, that an 50 carrying out their duties. * * * The Commission below, an exchange will decrease the exchange proposal to modify the ‘‘regular trading believes that a Market Maker must have an likelihood of abrogation of an affirmative obligation to hold itself out as willing hours,’’ as defined in Rule 600(b)(64) of Regulation NMS (17 CFR 242.600(a)(64) (defining ‘‘regular immediately effective filing by clearly to buy and sell options for its own account on a describing the significance of the rule regular or continuous basis to justify this favorable trading hours’’ as the time between 9:30 a.m. and treatment.’’); 53652 (April 13, 2006), 71 FR 20422 4 p.m., Eastern Time)) for any NMS stocks that it change and how the proposal is (April 20, 2006) (SR–Amex–2005–100) (order lists—which thereby has the effect of extending the consistent with the standards applicable approving the establishment of a new class of time during which all trading centers must protect to exchange rules, such as the registered options trader called a Remote Registered quotations pursuant to Rule 611 of Regulation NMS Options Trader); 52094 (July 21, 2005), 70 FR (17 CFR 242.611)—must be filed under Section provisions set forth in section 6 and 43913, 43915 (July 29, 2005) (SR–CHX–2004–11) 19(b)(2) of the Exchange Act. The Commission section 11A of the Exchange Act.51 (order approving a fully-automated electronic book believes that, because such a proposal could for the display and execution of orders in securities potentially raise significant competitive issues and 48 The Commission notes that no inference should that are not assigned to a specialist) (‘‘Because could affect existing SRO surveillance and oversight be made regarding whether an SRO’s proposed rule market makers receive certain benefits for carrying programs, it must be considered by the Commission change ‘‘impose[s] a significant burden on out their duties, the Commission believes that they after prior notice and comment before it becomes competition’’ merely because an SRO’s competitor should have an affirmative obligation to hold operative. See Non-Controversial Rule Proposing objects to the rule filing. themselves out as willing to buy and sell securities Release, supra note 31, 59 FR at 29394 (noting that 49 for their own account on a regular or continuous a proposal that would affect the surveillance or If the second proposal were filed under Rule basis to justify this favorable treatment.’’); and oversight capabilities of an SRO could directly 19b–4(f)(6), the Commission could consider 51366 (March 14, 2005), 70 FR 13217, 13221 (March impair the protection of investors and should be waiving the five-day pre-filing period and the 30- 18, 2005) (order approving the introduction of filed under Section 19(b)(2) of the Exchange Act). day pre-operative period to permit the revision to Remote Market Makers) (‘‘In particular, the 47 The Options Linkage Plan is a national market the new rule to be operative as quickly as possible. Commission believes that RMMs’ affirmative system plan for the purpose of creating and See Rule 19b–4(f)(6)(iii). obligations are sufficient to justify the benefits they operating an intermarket linkage among the various 50 See infra Section IV. receive as market makers.’’). participant exchanges. 51 15 U.S.C. 78f and 15 U.S.C. 78k–1, respectively.

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B. Other Types of Immediately Effective 2. Changes to an SRO’s Minor Rule Immediate effectiveness of such Proposed Rule Changes Violation Plan proposals reduces the administrative The Commission also believes that burdens on SROs that seek to expand 1. Filings Based on the Rules of Another the use of their MRVPs. SRO, Other Than Trading Rules more filings relating to an SRO’s MRVP could be appropriately filed as IV. Abrogation of Immediately Effective The Commission also is issuing immediately effective upon filing under Proposals interpretive guidance for all SROs with paragraph (f)(6) of Rule 19b–4. Based on We have designed the guidance to be respect to ‘‘copycat’’ filings relating to its experience with MRVP proposals principles-based because we cannot SRO rules other than trading rules that and various changes to those MRVPs over the years, the Commission believes anticipate the content and nature of are eligible for immediate effectiveness. every proposed rule change that might The Commission previously had stated that MRVPs have been useful elements of SROs’ disciplinary function. The be filed. By its nature, therefore, that filings that are ‘‘virtually identical’’ applying the guidance will involve an to an SRO filing already approved by MRVP allows an SRO to impose a limited sanction on a member using an element of judgment. We encourage the Commission are eligible for SROs to file immediately effective immediate effectiveness under Rule abbreviated process when a full disciplinary proceeding may not be proposed rule changes when in the 19b–4(f)(6).52 The Commission now warranted. Proposed rule changes that judgment of the SRO that approach is clarifies that an SRO may designate a enable SROs to bring new rules into the appropriate and consistent with the proposed rule change for immediate 57 MRVP sanctioning process rarely raise statute, rules, and this guidance. effectiveness even if not ‘‘virtually We acknowledge that the Commission 53 significant issues and promote identical’’ to another SRO’s rules. compliance by the SRO’s members with ultimately may determine to abrogate In particular, the Commission the SRO’s rules and the rules of the the immediately effective proposed rule recognizes that, while each SRO is Commission. change. As described in greater detail unique and has modified its rulebook The Commission previously has above, pursuant to section 19(b)(3)(C), at over time to reflect its particular stated that certain changes to an SRO’s any time within 60 days of the date of structure and terminology, all share MRVP can be filed for immediate filing of an immediately effective basic similarities such that a proposed effectiveness pursuant to Rule 19b– proposed rule change, the Exchange Act rule change need not be ‘‘virtually 4(f)(6) and reiterates that guidance permits the Commission summarily to identical’’ to the precise text of another here.55 Moreover, consistent with abrogate the rule change ‘‘if it appears SRO’s rules in order for the prescribed ‘‘copycat’’ filings, the Commission to the Commission that such action is conduct and scope of the rule change to believes that a change to an SRO’s necessary or appropriate in the public be consistent with the other SRO’s rule MRVP appropriately may be filed as an interest, for the protection of investors, on which it is based. The Commission immediately effective rule so long as or otherwise in furtherance of the 58 believes that a proposed rule change each policy issue raised (i) has been purposes of [the Exchange Act].’’ appropriately may be filed as an considered previously by the In connection with the interpretation, immediately effective rule so long as it Commission when the Commission the Commission also is removing its approved another exchange’s MRVP delegation of authority to the Director of is based on and similar to another SRO’s rule change, and (ii) the rule change the Division of Trading and Markets to rule and each policy issue raised by the resolves such policy issue in a manner abrogate SRO rule filings. We emphasize proposed rule (i) has been considered consistent with such prior approval.56 that abrogation does not necessarily previously by the Commission when the imply that a proposed rule change is Commission approved another 55 See Non-Controversial Rule Proposing Release, inconsistent with the Exchange Act.59 If exchange’s rule (that was subject to supra note 31, 59 FR at 29395 (noting that a the Commission abrogates an SRO’s proposed change that adds an existing rule to an notice and comment), and (ii) the rule proposed rule change filed for change resolves such policy issue in a SRO’s MRVP, that is objective in nature, such as a reporting obligation, and does not involve a immediate effectiveness after it became manner consistent with such prior violation of the federal securities laws or the rules effective but before it becomes operative approval. For this class of proposed rule thereunder, could be eligible for filing as a ‘‘non- (i.e., 30 days after filing or such shorter changes, in support of its designation controversial’’ proposed rule change). See also Non- Controversial Rule Adopting Release, supra note 8, period as the Commission may for immediate effectiveness, the SRO is 59 FR at 66696 (noting that an NYSE proposal to designate), the SRO would not have to required under Item 8 of Form 19b–4 to add violations of an NYSE rule would have been revert to its previous rules, because they identify the original SRO rule(s) on eligible for immediate effectiveness under Rule which its proposed rule change is based 19b–4(f)(6)). 56 As with any immediately effective filing, the 57 An SRO that files an immediately effective and explain any differences between its Commission could abrogate an MRVP-related proposed rule change with the Commission should proposed rule change and the rule(s) immediately effective proposed rule change that try to anticipate and address concerns relating to upon which it is based.54 raises significant issues. For example, an MRVP the protection of investors, the public interest, and filing that has the effect of excusing certain rule the burdens on competition. See generally Items 3 violations (by, for example, aggregating several and 4 of Form 19b–4. The Commission further notes 52 See Non-Controversial Rule Adopting Release, instances of violative behavior as a single offense that conclusory statements made in Item 7 of Form supra note 8, 59 FR at 66697. under the SRO’s MRVP) would not be eligible for 19b–4 could make it more difficult for the 53 The Commission guidance contained herein filing under Rule 19b–4(f)(6). In addition, when Commission to confirm that the proposed rule applicable to ‘‘copycat’’ and MRVP filings that are proposing a change to its MRVP, it would be change has been properly designated. See Item 7 of based on SRO rule changes previously approved by helpful for the SRO to specify which violations Form 19b–4 (‘‘Basis for Summary Effectiveness the Commission is not intended to limit the ability trigger sanctions, and to cite the rules of conduct Pursuant to Section 19(b)(3)(A) or for Accelerated of SROs to continue to file proposals under Section that may be enforced using the MRVP. If one of the Effectiveness Pursuant to Section 19(b)(2) or 19(b)(3)(A) of the Exchange Act where such rules of conduct is lengthy, to facilitate ease of Section 19(b)(7)(D)’’). proposals are based on another SRO’s rules that also reference, the SRO could consider including 58 15 U.S.C. 78s(b)(3)(C). were effective pursuant to Section 19(b)(3)(A) of the citations to the necessary sub-paragraphs in the 59 By its terms, Section 19(b)(3)(C) states that the Act. MRVP rule. Providing a sufficient level of detail as Commission may abrogate a proposal and ‘‘require 54 In identifying a rule on which its proposal is to the rules and violations covered by the MRVP that the proposed rule change be refiled * * *’’ based, the SRO should cite to the Commission’s would help affected entities better understand the pursuant to Exchange Act Section 19(b)(1) to be approval order for that rule. See Item 8 of Form operation of the plan and would provide specificity reviewed by the Commission pursuant to Section 19b–4. useful to assist the SRO in administering its MRVP. 19(b)(2).

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never ceased being operative.60 A they are to provide information the Paperwork Reduction Act of 1995, Commission determination to abrogate a necessary to elicit meaningful public as amended.68 proposed rule change does not affect the comment on the proposed rule change. VII. Costs and Benefits of the Proposed validity or force of the rule change As is currently the case, a proposal that Amendments during the period it was in effect.61 does not comply with the requirements of Form 19b–4 and Rule 19b–4 under The Commission is sensitive to the V. Amendment to Rule 200.30–3(a)(12) the Exchange Act will not be accepted costs and benefits of its rules, and has The Commission believes that as filed.63 considered carefully the costs and the explicitly outlining the mechanism for In order to provide for the possibility benefits of the interpretive guidance and issuance of notices of proposed SRO that there may be unusual and the rule amendment. To the extent that rule changes will further enhance the infrequent circumstances in which the SROs decide to avail themselves of the efficiency of the rule filing process. As 15 business day requirement is guidance contained in this release, the such, the Commission is modifying its impractical, the rule permits the Commission believes that more rule delegation of authority to the Director of Director of the Division of Trading and changes will be filed as immediately the Division of Trading and Markets. Markets in such circumstances to direct effective rule filings and more proposed The amended rule specifies that the otherwise. The rule provides that this rule changes relating to trading rules, Division shall issue notices of all function cannot be subdelegated. MRVPs, and ‘‘copycat’’ proposals that proposed rule changes within 15 currently are filed under section 19(b)(2) VI. Administrative Procedure Act, business days of filing thereof by the will take effect upon filing with the Regulatory Flexibility Act, and self-regulatory organization unless the Commission. As SROs increase their use Paperwork Reduction Act Director of the Division personally of section 19(b)(3)(A) to file more directs otherwise, and, if the Director The Commission finds, in accordance proposed rule changes for immediate has so directed, he shall promptly notify with section 553(b)(3)(A) of the effectiveness, SROs will be able to the Commission and either the Administrative Procedure Act,64 that modify their trading systems and rules Commission or the Director may order the interpretive guidance issued today more quickly in response to competitive publication of the notice thereafter.62 and amended Commission Rule 200.30– pressures, while still being subject to The Commission believes that this 3(a)(12) relate solely to interpretations the protections provided by Exchange requirement will enhance transparency and agency organization, procedure, or Act section 19(b). Further, as more with respect to the rule filing process, practice. Accordingly, the guidance and proposed rule changes become effective which also will provide additional Rule 200.30–3(a)(12) are not subject to upon filing, the burdens on the SROs, as certainty to SROs with respect to the the provisions of the Administrative well as on the Commission and its staff, issuance of notices of proposed rule Procedure Act requiring notice, are expected to be reduced since such changes. The Commission also expects opportunity for public comment, and proposals will be processed and take this requirement to significantly publication prior to their adoption.65 effect more quickly, as those rule improve the efficiency of the processing Further, publication of a substantive changes would not be subject to the of SRO proposed rule changes and the rule not less than 30 days before its issuance of a Commission order before issuance of notices of proposed rule effective date is required by the they may take effect. Also, to the extent changes, particularly with respect to Administrative Procedure Act except as that the guidance increases the filings subject to notice and comment otherwise provided for in Section percentage of SRO proposed rule pursuant to section 19(b)(2) of the 553(d). However, interpretive rules may changes that may take effect upon filing Exchange Act. The Commission believes take effect less than 30 days after with the Commission, there will be 66 that requiring the Division to issue publication. In addition, because the efficiencies as the processing of such notice of all proposed rule changes that amended rule relates solely to the proposed rule changes requires fewer are properly filed and comply with all internal processes of the Commission staff resources since the Commission is applicable requirements within 15 with regard to the publication of not required to issue an order approving business days of filing thereof will help proposed rule changes filed by SROs, such proposed rule changes. SROs plan accordingly as well as assist the Commission finds that there is good In addition, the revised rule regarding the Commission staff in managing their cause for making amended Rule 200.30– the issuance of a notice of a proposed 3(a)(12) effective upon publication in rule change within 15 business days of work flow. 67 The Commission notes that SRO rule the Federal Register. filing with the Commission will benefit change proposals will continue to be Finally, the rule and the SROs by providing additional certainty required to be drafted with precision if Commission’s interpretation do not to them regarding the process, thereby contain any new or additional enabling them to plan according, and collections of information as defined by 60 See 15 U.S.C. 78s(b)(3)(C). A proposed rule improving the efficiency and the speed change filed pursuant to Rule 19b–4(f)(6) becomes with which the Commission processes effective upon filing, but may not become operative 63 See supra note 22. SRO rule filings. The Commission 64 until 30 days after the date of filing, or such shorter 5 U.S.C. 553(b)(3)(A). believes that this rule will increase the time as the Commission may designate if consistent 65 For similar reasons, the amendments do not with the protection of investors and the public require analysis under the Regulatory Flexibility speed with which the Commission interest. See 17 CFR 240.19b–4(f)(6)(iii). Act or analysis of major rule status under the Small handles SRO proposed rule changes. 61 See 15 U.S.C. 78s(b)(3)(C). Business Regulatory Enforcement Fairness Act. See The Commission does not expect its 62 Nevertheless, the Division may continue to 5 U.S.C. 601(2) (for purposes of Regulatory guidance and the rule amendment to submit proposed rule changes and related matters Flexibility Act analyses, the term ‘‘rule’’ means any to the Commission for its consideration as it rule for which the agency publishes a general notice increase the costs on SROs of filing considers appropriate. of proposed rulemaking); 5 U.S.C. 804(3)(C) (for proposed rule changes with the The Commission notes that Commission rules purposes of Congressional review of agency Commission. require an SRO to post its proposed rule change on rulemaking, the term ‘‘rule’’ does not include any Certain costs associated with the its Web site when the proposed rule change is rule of agency organization, procedure, or practice Commission’s action today may submitted to the Commission. Further, the that does not substantially affect the rights or proposed rule change will be posted on the obligations of non-agency parties). potentially result from the change in the Commission’s Web site shortly after the 66 See 5 U.S.C. 553(d)(2). Commission issues notice thereof. 67 See 5 U.S.C. 553(d)(3). 68 44 U.S.C. 3501.

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amount of time that interested persons and on the immediately-effective rule Furthermore, any increase in the will have to comment on proposed filing, as well. number of proposed rule changes that changes to trading rules before they In addition, amended Rule 200.30– may become effective upon filing with become operative. In particular, to the 3(a)(12) relates to internal agency the Commission should improve the extent that SROs designate a greater management. The Commission’s rule ability of SROs to amend their rules number of proposed rule changes for amendment is intended to increase the efficiently, particularly with respect to immediate effectiveness pursuant to efficiency of the Commission’s review of rules relating to trading systems and section 19(b)(3)(A) where they SRO proposed rule changes by outlining ‘‘copycat’’ proposals, which will previously would have submitted them the Commission’s expectations with enhance their ability to respond to pursuant to section 19(b)(2), then the respect to Commission review of and competitive pressures by allowing them opportunity for interested persons to the timing of issuance of a notice of an to file changes to their systems on an comment on such proposals will now SRO’s proposed rule change. Any immediately effective basis. In addition, occur after the proposal has taken effect increase in the costs of this amended to the extent that SROs file an upon filing with the Commission, since rule fall on the Commission and its staff. increasing number of their proposed such proposals are not be subject to In particular, the Commission will have rule changes for immediate effectiveness Commission approval before they to concentrate staff resources on pursuant to section 19(b)(3)(A) of the become effective. reviewing and noticing within 15 days Exchange Act rather than for The Commission believes that this the proposed rule changes submitted by Commission approval pursuant to potential cost is limited by a number of SROs. However, the ability of SROs to section 19(b)(2) of the Exchange Act, factors. First, interested persons will devote sufficient resources to preparing this guidance should allow the continue to have an opportunity to clear and complete proposals should Commission to focus on those filings submit written data, views, and enable the staff to review expeditiously that raise significant issues and that are arguments concerning such proposed a proposed rule change and issue the required to be submitted under section rule changes before market participants notice substantially in the form 19(b)(2) of the Exchange Act for must comply with the new rules provided by the SRO when both are Commission approval.72 because proposals that take effect upon clear, complete, and consistent with all IX. Statutory Basis and Text of filing with the Commission pursuant to applicable requirements. Amendments Rule 19b–4(f)(6) ordinarily will not VIII. Effect on Efficiency, Competition, become operative until 30 days after This amendment to 17 CFR Part and Capital Formation filing with the Commission unless the 200.30–3(a)(12) is being adopted SRO demonstrates to the Commission Section 23(a)(2) of the Exchange pursuant to statutory authority granted that waiver of the operative delay would Act 70 prohibits the Commission from to the Commission, including sections be consistent with the protection of adopting any rule that would impose a 4A, 6, 11A, 15A, 15B, 17A, 19, and 23 73 investors and the public interest. In burden on competition not necessary or of the Exchange Act. addition, the Commission summarily appropriate in furtherance of the List of Subjects may abrogate a proposed rule change. If purposes of the Exchange Act. Rule an SRO were to re-file the proposed rule 200.30–3(a)(12) applies to the 17 CFR Part 200 change pursuant to section 19(b)(2), the Commission’s delegation of authority Administrative practice and proposed rule change will be published with regard to the publication of notice procedures, Authority delegations for notice and comment.69 The of proposed rule changes filed by SROs (Government agencies). Commission’s action or inaction with pursuant to section 19(b)(1) of the 17 CFR 241 regard to abrogation will be informed by Exchange Act.71 Specifically, the its own views, as well as the views modifications to the rule, which require Securities. expressed by commenters. the Division of Trading and Markets to Text of the Adopted Rules Finally, as currently is the case, a issue notice of a proposed rule change proposed rule change may take effect within 15 business days of filing with I For the reasons set out in the upon filing with the Commission only if the Commission, do not impose any preamble, Title 17, Chapter II of the it satisfies the standards set forth in burdens or costs on SROs. Further, the Code of Federal Regulations is amended section 19(b) of the Exchange Act and interpretation likely will facilitate the as follows: Rule 19b–4 thereunder. Additionally, ability of SROs to modify their trading PART 200—ORGANIZATION; the Commission guidance outlined systems and rules more quickly in CONDUCT AND ETHICS; AND above specifies that an immediately- response to competitive pressures, INFORMATION AND REQUESTS effective proposed rule change while still preserving the protections involving a trading rule, MRVP, or provided by Exchange Act section 19(b). Subpart A—Organization and Program copycat proposal may not raise policy The Commission expects the Management issues that the Commission previously interpretive guidance and amended has not considered in a proposed rule Rule 200.30–3(a)(12) to have a positive I 1. The authority citation for part 200, change filed by another exchange that effect on efficiency, competition, and subpart A continues to read in part as was approved by the Commission after capital formation in that the exchanges follows: notice and comment. Accordingly, since that utilize the guidance are expected to the rule on which the new proposal is find themselves in a better position to 72 15 U.S.C. 78s(b)(2). The Commission notes that the majority of rule proposals filed by SROs are modeled will have been previously compete with entities that operate currently designated for immediate effectiveness. subject to notice and comment, the trading systems that are not subject to For example, in 2006, SROs filed 1,018 proposed interested persons will have had the the rule filing processes of section 19(b) rule changes with the Commission. Of those filings, opportunity to comment before the prior of the Exchange Act. 478 (47%) were filed pursuant to Section 19(b)(2) and 540 (53%) were filed pursuant to Section proposal (or proposals) became effective 19(b)(3)(A). 70 15 U.S.C. 78w(a)(2). 73 15 U.S.C. 78d–1, 78f, 78k–1, 78o–3, 78o–4, 69 See 15 U.S.C. 78s(b)(3)(C). 71 15 U.S.C. 78s(b)(1). 78q–1, 78s, and 78w, respectively.

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Authority: 15 U.S.C. 77o, 77s, 77sss, 78d, Market Regulation’’ to read ‘‘Division of Regulation’’ to read ‘‘Division of 78d–1, 78d–2, 78w, 78ll(d), 78mm, 80a–37, Trading and Markets’’; Trading and Markets’’. 80b–11, and 7202, unless otherwise noted. I c. Adding two sentences to the end of I 6. In § 200.30–11, paragraph (c)(2), is * * * * * paragraph (a)(12); and amended by revising the phrase I 2. Section 200.19a is amended by: I d. removing and reserving paragraph ‘‘Division of Market Regulation’’ to read I a. Revising the section heading as set (a)(58). ‘‘Division of Trading and Markets’’. forth below; The revision and addition reads as I 7. In § 200.30–18, introductory text of I b. In the first sentence of the follows: paragraph (h), is amended by revising introductory text of the section, revise the phrase ‘‘Division of Market the phrase ‘‘Division of Market § 200.30–3 Delegation of authority to Director of Division of Trading and Markets. Regulation’’ to read ‘‘Division of Regulation’’ to read ‘‘Division of Trading and Markets’’. Trading and Markets’’; and * * * * * I c. Remove the authority citation (a) * * * PART 241—INTERPRETATIVE following the section. (12) * * * The Division shall issue RELEASES RELATING TO THE such notices of proposed rule changes SECURITIES EXCHANGE ACT OF 1934 § 200.19a Director of the Division of within 15 business days of filing by the AND GENERAL RULES AND Trading and Markets. self-regulatory organization unless the REGULATIONS THEREUNDER * * * * * Director of the Division personally I I 3. Section 200.30–1, paragraph (i), otherwise directs. If the Director has so 8. Part 241 is amended by adding first sentence is amended by revising directed, the Division Director shall Release No. 58024 and the release date the phrase ‘‘Division of Market promptly notify the Commission and of June 25, 2008 to the list of Regulation’’ to read ‘‘Division of either the Commission or the Director interpretive releases. Trading and Markets’’. may order publication of the notice By the Commission. I 4. Section 200.30–3 is amended by: thereafter. Dated: July 3, 2008. I a. Revising the section heading as set * * * * * Florence E. Harmon, forth below; I 5. In § 200.30–4, paragraph (a)(12), the Acting Secretary. I b. In the introductory text to the first sentence is amended by revising [FR Doc. E8–15574 Filed 7–10–08; 8:45 am] section, revising the phrase ‘‘Division of the phrase ‘‘Division of Market BILLING CODE 8010–01–P

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Part VI

Federal Trade Commission 16 CFR Part 306 Automotive Fuel Ratings, Certification and Posting; Final Rule

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FEDERAL TRADE COMMISSION Based on comments received in International3 (‘‘ASTM’’) standard response to the NPRM, the Commission D6751.4 16 CFR Part 306 now publishes final amendments to the ‘‘Biodiesel,’’ as defined by EISA, is a RIN 3084–AA45 Fuel Rating Rule (16 CFR Part 306) that diesel fuel produced using alcohol to incorporate EISA’s labeling transform animal fat or vegetable oil. Automotive Fuel Ratings, Certification requirements. Under the final Specifically, EISA (Sec. 205(c)) defines and Posting amendments, the rating and certification ‘‘biodiesel’’ to mean ‘‘the monoalkyl requirements of the existing Rule apply esters of long chain fatty acids derived AGENCY: Federal Trade Commission to fuels containing more than five from plant or animal matter that meet: (‘‘FTC’’ or ‘‘Commission’’). percent biodiesel or more than five (A) the registration requirements for ACTION: Final rule. percent biomass-based diesel. This fuels and fuel additives under this notice provides background on the Fuel section [42 U.S.C. 7545];5 and (B) the SUMMARY: Section 205 of the Energy Rating Rule, a short description of requirements of ASTM standard Independence and Security Act of 2007 biodiesel and biomass-based diesel D6751.’’6 Biodiesel serves as a substitute requires the Commission to promulgate fuels, information about the new for diesel fuel for some diesel vehicles biodiesel and biomass-based diesel statutory labeling requirements for and is usually blended with diesel for labeling requirements. In accordance biodiesel fuels, a discussion of the sale at retail pumps. According to the with this directive, the Commission has comments submitted along with an Department of Energy, biodiesel in the completed the required rulemaking and explanation of the changes made in United States is usually made from is publishing final amendments to its response to those comments, and a soybean oil or recycled restaurant rule for ‘‘Automotive Fuel Ratings, detailed description of the grease. Some estimates suggest that Certification and Posting’’ (‘‘Fuel Rating Commission’s final amendments. biodiesel sales increased from 15 Rule’’ or ‘‘Rule’’) (16 CFR Part 306). I. The Fuel Rating Rule million gallons in 2002 to 250 million DATES: The amendments published in gallons in 2006.7 this final rule will become effective The Commission first promulgated Finally, EISA (Sec. 205(c)(4)) defines December 16, 2008. The incorporation the Fuel Rating Rule (then titled the ‘‘biomass-based diesel and biodiesel by reference of certain publications ‘‘Octane Certification and Posting blends’’ as fuels consisting of ‘‘‘biomass- listed in the rule is approved by the Rule’’) in 1979 in accordance with the based diesel’ or ‘biodiesel’ . . . blended Director of the Federal Register as of Petroleum Marketing Practices Act with petroleum-based diesel fuel.’’ December 16, 2008. (‘‘PMPA’’) (15 U.S.C. 2821 et seq.). In Although the FTC has never ADDRESSES: Requests for copies of this response to amendments to the PMPA, specifically addressed fuel labeling document should be sent to: Public the Commission expanded the scope of requirements for biodiesel fuels, the Reference Branch, Room 130, Federal the Rule in 1993 to cover liquid broad authority under PMPA allows the Trade Commission, 600 Pennsylvania alternative fuels (58 FR 41356 (Aug. 3, Commission to include these fuels Avenue, NW, Washington, D.C. 20580. 1993)). The Fuel Rating Rule, therefore, The complete record of this proceeding covers any alternative liquid fuel 3 ASTM International was formerly known as, is also available at that address. distributed for use in any motor vehicle and is referred to in the Fuel Rating Rule as, the Relevant portions of the proceeding, including, but ‘‘not limited to,’’ American Society for Testing and Materials. methanol, denatured ethanol, liquefied 4 ASTM D6751 is titled: ‘‘Standard Specification including this document, are available for Biodiesel Fuel Blend Stock (B100) for Middle at http://www.ftc.gov. natural gas, and coal-derived liquid Distillate Fuels.’’ EISA defines ‘‘biomass-based fuels.1 PMPA gives the Commission FOR FURTHER INFORMATION CONTACT: diesel’’ by referencing the definition of the term authority to designate methods for fuel ‘‘biodiesel’’ provided in Section 312(f) of the Energy Matthew Wilshire, (202) 326-2976, or rating, fuel certification, and posting for Policy Act of 1992 (42 U.S.C. 13220(f)). The Hampton Newsome, (202) 326–2889, these fuels at the point of sale. See 15 definition reads: ‘‘a diesel fuel substitute produced Attorneys, Division of Enforcement, from nonpetroleum renewable resources that meets U.S.C. 2822. Bureau of Consumer Protection, Federal the registration requirements for fuels and fuel additives established by the Environmental Trade Commission, 600 Pennsylvania II. Biodiesel Fuels Protection Agency under [42 U.S.C. 7545],’’ and Avenue, N.W., Washington, D.C. 20580. EISA contains labeling requirements includes fuel derived from ‘‘(i) animal wastes, SUPPLEMENTARY INFORMATION: Section including poultry fats and poultry wastes, and other for ‘‘biomass-based diesel’’ and waste materials; or (ii) municipal solid waste and 205 of the Energy Independence and ‘‘biodiesel.’’ It defines biomass-based sludges and oils derived from wastewater and the Security Act of 2007 (‘‘EISA’’ or the diesel as any fuel substitute that is treatment of wastewater.’’ 42 U.S.C. 13220(f)(1)(A) ‘‘Act’’) (Pub. L. 110-140) requires the produced from certain renewable and (B). Commission to promulgate biodiesel resources and that meets the registration 5 EISA’s definition of ‘‘biodiesel’’ specifically refers to the registration requirements for fuels and and biomass-based diesel labeling requirements for fuels and fuel additives fuel additives under ‘‘this section.’’ However, there requirements within 180 days of the established by the Environmental are no such registration requirements in Section 205 law’s passage. The Act addresses three Protection Agency (‘‘EPA’’) under 42 of EISA nor are there any in the FTC’s Fuel Rating categories of biodiesel and biomass- U.S.C. 7545,2 but not necessarily the Rule (16 CFR Part 306). Accordingly, we assume the phrase ‘‘this section’’ refers to the EPA’s registration based diesel blends and specifies requirements of the ASTM requirements for fuels and fuel additives (40 CFR labeling requirements for two of them. Part 79 ‘‘Registration of Fuels and Fuel Additives’’) The Act also contains definitions for the 1 In 1993, the Commission explained that ‘‘[t]he issued pursuant to 42 U.S.C. 7545. Therefore, the terms ‘‘biomass-based diesel,’’ Fuel Rating Rule . . . applies to all present and definition of ‘‘biodiesel’’ in the final amendments ‘‘biodiesel,’’ and ‘‘biomass-based diesel future alternative liquid automotive fuels.’’ 58 FR references the requirements of 40 CFR Part 79. 41355, 41358 (Aug. 3, 1993). 6 Because biodiesel, as defined by EISA, meets and biodiesel blends’’ (hereinafter 2 The EPA has issued registration requirements EPA’s fuel registration requirements and is derived referred to collectively as ‘‘biodiesel for fuels and fuel additives (40 CFR Part 79 from renewable resources, biodiesel also meets the fuels’’). Following enactment on ‘‘Registration of Fuels and Fuel Additives’’) definition of biomass-based diesel, effectively December 19, 2007, the Commission pursuant to 42 U.S.C. 7545. Those requirements making biodiesel a subset of biomass-based diesel. constitute EPA’s regulatory program for the 7 See (http://www1.eere.energy.gov/biomass/ published a Notice of Proposed registration of motor vehicle diesel fuel (including renewable_diesel.html) (2002 estimate) and (http:// Rulemaking (‘‘NPRM’’) on March 11, biomass-based diesel and biodiesel), motor vehicle www.biodiesel.org/pdf_files/fuelfactsheets/ 2008. gasoline, and their additives. Biodiesel_Sales_Graph.pdf) (2006 estimate).

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under the rating, certification, and comment on proposed amendments to feedstocks and products, none of posting requirements of the Fuel Rating the Rule. (73 FR 12916). The which currently have an ASTM Rule. In light of Congress’s specific Commission designed the proposed specification. directive in EISA to promulgate amendments to: (1) explicitly include In addition, the National Biodiesel biodiesel fuel labeling requirements, the fuels containing more than five percent Board (‘‘NBB’’) noted that several types Commission now amends the Fuel biodiesel or more than five percent of fuels conceivably could qualify as Rating Rule to include biodiesel fuels in biomass-based diesel as alternative fuels biomass-based diesel. Most accordance with that directive.8 subject to the rating, certification, and significantly, ConocoPhillips, a posting requirements of the Fuel Rating producer of a type of biomass-based III. EISA’s Directive Rule; and (2) promulgate labeling diesel known as renewable diesel, Section 205(a) of EISA provides that requirements for those fuels consistent explained that, unlike biodiesel blends, ‘‘[e]ach retail diesel fuel pump shall be with EISA’s requirements. The NPRM its fuel is ‘‘essentially indistinguishable labeled in a manner that informs also raised specific questions for from ASTM D 975 defined diesel fuel.’’ consumers of the percent of biomass- comment. ConocoPhillips noted that biodiesel based diesel or biodiesel that is blends contain methyl ester and that contained in the biomass-based diesel V. Comments Received and the engine manufacturers generally blend or biodiesel blend that is offered Commission’s Response recommend using fuels containing no for sale, as determined by the Federal The Commission received twelve more than a certain amount of methyl Trade Commission.’’ EISA also comments.10 Generally, the comments ester. By contrast, ConocoPhillip’s specifically addresses three categories of supported the FTC’s proposed renewable diesel blends do not biodiesel fuel blends, requiring labels amendments. However, several currently contain methyl ester. with precise wording for two. First, fuel commenters raised issues. This section In addition, the American Trucking blends containing no more than five addresses these issues in the following Associations, Inc. (‘‘ATA’’) agreed with percent biodiesel and no more than five order: separate labeling for fuels ConocoPhillips’ assertion that percent biomass-based diesel, and that containing biodiesel and for fuels manufacturer warranties generally meet ASTM D975 (‘‘Standard containing biomass-based diesel; the require a consumer to use fuels Specification for Diesel Fuel Oils’’), appropriateness of the labeling scheme containing no more than a specific need not be labeled.9 Second, fuel generally; the appropriate background percentage of biodiesel. ATA stated that blends containing more than five but no color for the labels; modifications to the heavy duty diesel engines sold in more than twenty percent biomass- labels proposed by the commenters to America ‘‘are designed and warranted to based diesel or biodiesel ‘‘shall be benefit consumers; and whether to operate on diesel fuel formulated to labeled ‘contains biomass-based diesel require specific percentage designations meet [the ASTM] D-975 fuel standard.’’ or biodiesel in quantities between 5 only for biodiesel fuel blends over Thus, use of any fuel, including percent and 20 percent.’’’ EISA, Sec. twenty percent. renewable diesel, that meets ASTM 205(b)(2) (emphasis added). Finally, A. Separate Labeling for Fuels D975 will satisfy engine warranty blends containing more than twenty Containing Biodiesel and Biomass- standards for heavy duty diesel engines. percent biodiesel or biomass-based Based Diesel Archer Daniels Midland Company diesel ‘‘shall be labeled ‘contains more (‘‘ADM’’), however, asserted that than 20 percent biomass-based diesel or COMMENTS: ‘‘biomass-based diesel and Biodiesel biodiesel.’’’ EISA, Sec. 205(b)(3) Several commenters noted that [sic] mean the same thing’’ for purposes (emphasis added). Significantly, biomass-based diesel and biodiesel have of labeling because EISA defines although Section 205 of EISA furnishes significantly different qualities and, biomass-based diesel to mean precise, mandatory label language, the therefore, urged their separate treatment ‘‘biodiesel’’ as defined in Section 312(f) Act leaves the FTC with discretion to for the purposes of rating, certification, of the Energy Policy Act of 1992. determine the specific size, layout, and and labeling. Commenters further Possible Consumer Harm from color of the required label, as well as to asserted that labeling both of them as Confusion of Biodiesel and Biomass- require any additional wording ‘‘biodiesel blends,’’ as proposed in the Based Diesel necessary to ‘‘inform[] consumers of the NPRM, would lead to consumer Because biomass-based diesel and percent of biomass-based diesel or confusion. They therefore proposed biodiesel may have different properties, biodiesel that is contained in the various revisions to eliminate that commenters expressed concerns that biomass-based diesel blend or biodiesel confusion. blend that is offered for sale.’’ EISA, Biomass-Based Diesel as Distinct from treating them as the same fuel for Sec. 205(a). Biodiesel purposes of rating, certification, and labeling would cause consumer harm. IV. Procedural History Almost all of the comments expressed the view that biodiesel differs NBB explained that some vehicle On March 11, 2008, the Commission significantly from biomass-based diesel. manufacturers’ warranties require use of published an NPRM requesting For example, the Illinois Soybean only biodiesel that meets the Association (‘‘ISA’’) stated that requirements of ASTM D6751 or diesel 8 The Fuel Rating Rule currently does not specify fuel that meets ASTM D975, and that labeling requirements for petroleum-based diesel. there is a significant difference See 58 FR 41356, 41368 (Aug. 3, 1993). The between biodiesel and biomass-based different types of biomass-based diesel Commission, therefore, is not amending the Rule to diesel fuel; consequently they should fuels would not necessarily meet this include such requirements for diesel fuel as part of be labeled separately. Biodiesel is a standard. NBB further asserted that this proceeding. using the designation ‘‘B-XX’’ for both 9 Specifically, EISA states that these fuels ‘‘shall defined fuel with a specific ASTM not require any additional labels.’’ EISA, Sec. standard—D6751. . . . Biomass-based fuels, as proposed in the NPRM, would 205(b)(1). We understand this language to mean that diesel fuel is a category of fuels, and confuse consumers regarding what fuel although EISA does not require labeling of biodiesel could contain a number of different they are purchasing because consumers and biomass-based diesel blends at concentrations associate that designation solely with of five percent or less, any label requirements otherwise applicable to such diesel fuel will 10 Comments are available at: (http://www.ftc.gov/ biodiesel blends. ADM and ISA likewise continue to apply. os/comments/biodiesel/index.shtm.) asserted that the proposed labels would

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cause consumer confusion regarding the thresholds at five or twenty percent.11 In those for biodiesel blends, must contain content and properties of the biodiesel order to make these thresholds a specific disclosure of the exact and biomass-based diesel blends. meaningful, it is critical that consumers percentage of biomass-based diesel in Finally, ConocoPhillips observed that, understand whether a fuel contains blends over twenty percent (and may under the proposed amendments, fuel biodiesel or biomass-based diesel. contain such a disclosure for blends blends containing five percent or less However, the label proposed in the below that level), the labels will not use renewable diesel and five percent or less NPRM makes no distinction between the ‘‘B-XX’’ designation. Instead, they biodiesel, but with a combined fuels containing biodiesel and biomass- will display the numerical concentration of biodiesel and biomass- based diesel. Therefore, it might lead representation of the volume followed based diesel of over five percent, would consumers to mistake a biodiesel blend by the percentage sign (e.g. ‘‘25%’’). The be labeled ‘‘contains biomass-based for a biomass-based diesel blend and, final amendments limit the use of the diesel or biodiesel in quantities between thus, wrongly conclude that they can ‘‘B-XX’’ designation to fuels containing 5 percent and 20 percent.’’ Those properly use a biodiesel blend without biodiesel because, according to the blends, however, would not differ in voiding their warranty. commenters, consumers associate that terms of suitability for various engines The Commission’s proposed label also designation solely with biodiesel from diesel fuel containing five percent could cause a related problem. If a fuel blends. or less combined biodiesel and biomass- contained both biodiesel and biomass- Similarly, the final amendments based diesel, for which there is no label based diesel, the proposed amendments provide separate labels for 100 percent requirement. would require retailers to combine the (or ‘‘neat’’) biodiesel and biomass-based percentage of biodiesel and biomass- diesel. Neat biomass-based diesel labels Proposed Solutions based diesel present in the fuel for will have a header reading ‘‘100% labeling purposes, thereby potentially Biomass-Based Diesel,’’ with language Commenters suggested several confusing consumers regarding whether underneath the header reading changes to distinguish biodiesel from the fuel is suitable for their engines.12 ‘‘contains 100 percent biomass-based biomass-based diesel. NBB proposed Accordingly, as described in detail diesel.’’ The label for neat biodiesel will that ‘‘a separate designation be required below, the Commission is altering the remain the same as proposed in the for a ‘biodiesel blend’’’ and that the FTC proposed amendments in four ways. NPRM (i.e. ‘‘B–100 Biodiesel’’), except ‘‘create a system that allows each type First, the final amendments revise the that the language underneath the header of fuel within the biomass-based diesel definition of biomass-based diesel to will read: ‘‘contains 100 percent pool to have its own label.’’ NBB further make clear that biodiesel does not fall biodiesel.’’ The Commission is changing urged reserving the designation ‘‘B-XX’’ within the definition of biomass-based the text beneath the header to assist for only biodiesel blends. Similarly, diesel for the purposes of the Fuel consumers in distinguishing neat ConocoPhillips recommended that Rating Rule. Clarifying that the two biodiesel and neat biomass-based ‘‘[r]ather than having headers read ‘B– fuels are distinct allows the Commission diesel.14 100 Biodiesel’ and ‘B–20 Biodiesel to require different labels for each. Third, to distinguish the fuels further, Blend,’ [the headers should] be changed Second, the final amendments require the final amendments change the to ‘B–100 Biomass Diesel’ and ‘B–20 separate labels to disclose the presence background color for fuels containing Biomass Diesel Blend.’’’ ISA suggested of biodiesel and biomass-based diesel in biomass-based diesel to orange, rather prohibiting the use of the term a fuel blend.13 The proposed than the blue required for biodiesel ‘‘biodiesel’’ altogether on a label unless amendments contained certain font, labels.15 The Commission institutes this the fuel actually contains biodiesel. formatting, and heading requirements change for two reasons. First, the orange Finally, as an alternative to changing the for biodiesel fuel labels. The final biomass-based diesel label will contrast label, the Alliance of Automobile amendments retain these provisions. with the blue biodiesel label, making it Manufacturers (‘‘AAM’’) recommended However, to distinguish between the easier for consumers to distinguish altering the definition of ‘‘biomass- two fuels, they also require biomass- between the two fuels. Second, biomass- based diesel’’ in the Fuel Rating Rule to based diesel labels to display headers based diesel, at least as it is currently define it explicitly as ‘‘biodiesel as that differ from those for biodiesel. sold, does not appear to pose engine defined in section 312(f) of the Energy Specifically, headers for biomass-based warranty problems, or other unique Policy Act of 1992.’’ diesel labels will read ‘‘Biomass-Based concerns, for consumers. It is, therefore, Diesel Blend,’’ instead of ‘‘Biodiesel DISCUSSION: appropriate to use the same background Blend.’’ In addition, while the headers color as that used for all other Based on the comments, it appears for biomass-based diesel blends, like previously covered alternative fuels. that fuel containing biomass-based Finally, the Commission is revising 11 diesel can differ significantly from fuel See, e.g., ‘‘OEM Warranty Statements and Use the amendments to make clear that, for of Biodiesel Blends over 5% (B5),’’ National purposes of determining whether and containing biodiesel and that these Biodiesel Board, available at: (http:// differences are significant for purposes www.biodiesel.org/pdf_files/ how to disclose the presence of of engine warranties. As the B5_warranty_statement_32206.pdf.) commenters explained, consumers may 12 For example, the proposed label for fuel 14 As discussed below, the Commission is not containing eighteen percent biodiesel and three altering the text below the header for biodiesel and lose warranty coverage if they use fuels percent biomass-based diesel would be ‘‘B-21 biomass-based diesel blends. However, because containing biodiesel in too high a Biodiesel Blend,’’ wrongly implying that the EISA only provides specific labeling requirements concentration, whereas the use of the amount of biodiesel in the fuel exceeds the for biodiesel and biomass-based diesel blends—and only biomass-based diesel currently on significant threshold of twenty percent. neat biodiesel and biomass-based diesel are not 13 As required by EISA, the Commission does not blends—the Commission has discretion to omit the the market would not affect warranty require retailers to disclose the presence of five term ‘‘biomass-based diesel’’ from neat biodiesel coverage at any concentration. percent or less biomass-based diesel in a fuel blend. labels and vice versa. Furthermore, as the Commission noted However, if a blend contains more than five percent 15 In the NPRM, the Commission proposed in the NPRM, many original equipment of biomass-based diesel and more than five percent biodiesel fuel labels with a background color of biodiesel, the final amendments require both a purple. For reasons explained in Section V.C below, manufacturers and customer service biodiesel label and a biomass-based diesel label on the Commission is now changing the required color departments set biodiesel warranty the pump. for biodiesel to blue.

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biodiesel or biomass-based diesel in 1) A fuel blend containing five C. Appropriateness of Background Color fuels, their concentrations should be percent biomass-based diesel and five The NPRM proposed a background counted separately. Thus, the final percent biodiesel does not require any color of purple, PMS 2562, for biodiesel amendments define the term ‘‘biodiesel additional labeling because the Rule and biomass-based diesel labels. The blend’’ as a blend containing more than only applies to diesel blends containing Commission requested comment on five percent biodiesel, and it defines a more than five percent biodiesel and/or whether purple, blue, or another color new term, ‘‘biomass-based diesel more than five percent biomass-based was most appropriate. blend,’’ as a blend containing more than diesel. five percent biomass-based diesel. The COMMENTS: 2) A blend containing six percent final amendments also explicitly do not biodiesel and five percent biomass- API supported purple as the cover blends that ‘‘contain less than or based diesel requires a blue label with background color, noting that it equal to 5 percent biodiesel by volume either ‘‘B-6 Biodiesel Blend’’ or ‘‘provides an appropriate contrast and less than or equal to 5 percent between regular diesel labels (often biomass-based diesel by volume.’’ These ‘‘Biodiesel Blend’’ in the header and with the text ‘‘contains biomass-based green), gasoline-octane labels (yellow) changes are consistent with EISA’s and E85 labels (orange).’’ Most provision that retailers need not diesel or biodiesel in quantities between 5 and 20 percent’’ below the header. commenters, however, believed a disclose biodiesel and biomass-based different color would be more diesel in concentrations of five percent The header of the label does not disclose the presence of biomass-based appropriate for biodiesel. Significantly, or less. both ISA and ADM favored a blue Furthermore, the Commission is diesel because it comprises only five background because it would be incorporating these new terms into the percent of the fuel. consistent with state biodiesel labeling rating and certification requirements. 3) A blend containing twenty-one requirements already in place. Therefore, covered entities must rate percent biodiesel and five percent and certify the percentage of biodiesel biomass-based diesel requires a blue DISCUSSION: and/or biomass-based diesel in a fuel label with ‘‘B-21 Biodiesel Blend’’ in the The Commission agrees with ISA and blend independently. As noted above, header and with the text ‘‘contains more ADM that biodiesel labels should have because biodiesel and biomass-based than 20 percent biomass-based diesel or a blue background. A blue label is diesel must be separately rated and biodiesel’’ below the header. The header consistent with pre-existing state disclosed on separate labels, it is of the label does not disclose the requirements, and blue will sufficiently theoretically possible that a single fuel presence of biomass-based diesel contrast with colors used for other fuel blend could contain more than five because it comprises only five percent labels, reducing the risk of consumers percent of each and, therefore, would of the fuel by volume. Furthermore, mistaking biodiesel for biomass-based require two separate labels. However, because the fuel contains only five diesel.16 the Commission has no evidence that percent biomass-based diesel, retailers The final amendments, however, there is any substantial market for such should not include it for the purposes require biomass-based diesel labels to dual blends at this time. If this of determining the specific blend have an orange background. As requirement becomes unwieldy at some designation. explained above, the use of currently future date, any affected party may available biomass-based diesel blends B. General Appropriateness of Label petition for revisions to the Rule. does not raise the same engine warranty Although the final amendments concerns as biodiesel, and, therefore, it require separate labeling of biodiesel COMMENTS: is appropriate to use the same orange and biomass-based diesel fuels, they do None of the commenters objected to background as that used for all other not change the text below the label’s the Commission’s explicit inclusion of previously covered alternative fuels. black band for either biodiesel or fuels containing more than five percent biomass-based diesel blends, biodiesel or biomass-based diesel within D. Proposed Modifications to Increase notwithstanding several commenters’ the scope of the Fuel Rating Rule, nor Benefits to Consumers views that the text could confuse did commenters object to the size or COMMENTS: consumers. As explained above, EISA format of the labels. For example, ATA requires that this specific language supported the labels as ‘‘distinctive and Five commenters proposed appear on the label. Section 205(b) not likely to confuse consumers.’’ The modifications to the labels to increase explicitly states that blends at commenters also concurred with the the benefit to consumers. AAM concentrations of more than five percent general categories of information proposed adding the text: ‘‘Consult and no more than twenty percent ‘‘shall disclosed on the labels. For example, manufacturer fuel recommendations.’’ be labeled ‘contains biomass-based the American Petroleum Institute ATA suggested requiring a similar diesel or biodiesel in quantities between (‘‘API’’) expressed the view that the warning on labels for blends of more 5 and 20 percent’’’ and that blends at labels ‘‘provide[] the consumer with the than twenty percent biodiesel. API concentrations above twenty percent information necessary to fuel properly suggested adding the word ‘‘shall be labeled ‘contains more than 20 his/her vehicle.’’ ‘‘MAXIMUM’’ in all capital letters to percent biomass-based diesel or precede the specific blend disclosure for biodiesel.’’’ EISA, Sec. 205(b) (emphasis DISCUSSION: blends above B-20. Similarly, BP added). The Commission, therefore, Products North America (‘‘BP’’) urged does not have discretion to allow Because the size, format, and general altering proposed Part 306.5(b) to different language. layout requirements of the biodiesel and biomass-based diesel blend labels are 16 Some commenters suggested green as an Examples consistent with requirements for other appropriate background color for biodiesel. To illustrate the application of the fuels, and because none of the However, as noted by API, the color green is associated with diesel fuel, and biodiesel labels revised labeling requirements, the commenters objected to those should present a significant contrast to 100 percent Commission provides the following requirements, the Commission retains petroleum-based diesel to avoid the risk of examples: those aspects of the proposed labels. confusion.

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require that the labels display the such a requirement would be DISCUSSION: maximum volume of biodiesel and/or impractical. ATA, for example, asserted The Commission agrees with the biomass-based diesel in a blend. Finally, that retailers often mix different majority of commenters that it should the Engine Manufacturers Association biodiesel fuels with concentration levels retain the requirements of nonspecific (‘‘EMA’’) proposed requiring the label ranging from five to twenty percent at designations of biodiesel or biomass- for neat biodiesel to state whether the the point of sale, making it extremely based diesel in concentrations of over fuel meets the standards of ASTM difficult to know the exact five, but not over twenty, percent and D6751. concentration of a biodiesel fuel blend continue to require specific designations DISCUSSION: sold from a given dispenser. Similarly, for blends over twenty percent. The the Petroleum Marketers Association of Commission understands that The final amendments do not America (‘‘PMAA’’) noted that ‘‘[a] label incorporate these suggestions. Requiring manufacturers’ warranties generally with a generic range would give retailers allow use of biodiesel blends at a ‘‘consult manufacturer fuel the flexibility to increase or decrease recommendations’’ warning is concentrations of either no more than biodiesel blends to meet supply without five or no more than twenty percent. inconsistent with the Fuel Rating Rule’s changing the label.’’ In addition, EMA treatment of other alternative fuels. The Thus, there is less benefit to consumers explained that ‘‘many manufacturers from disclosure of a specific percentage Commission notes, however, that approve the use of biodiesel blends up nothing in the regulations prohibits a in this range. Indeed, EISA implicitly to 20%. Consequently, there is no recognizes this fact by prescribing the retailer from disclosing the warnings quality reason or rationale to make a proposed by AMA and ATA. In same labeling language for blends in the specific delineation among blends less range. Furthermore, based on ATA’s addition, the Commission does not than 20%. A single designation is agree with API’s and BP’s suggestion comment, retailers apparently would sufficient to assure the quality of a have difficulty determining the precise that the term ‘‘maximum’’ appear on blended fuel.’’ biodiesel fuel labels. The final percentage of biodiesel or biomass- amendments already require ratings and However, while not advocating for an based diesel in blends up to twenty posting of a specific percentage exact percentage designation, ATA and percent. Thus, requiring a specific designation for biodiesel fuels at individual commenter Johnas Carson designation for these blends would concentrations of over twenty percent suggested requiring disclosure of the impose costs on industry members and, therefore, such a designation percentage of biodiesel and biomass- without significantly benefitting would be confusing. Finally, the based diesel in a fuel using blend consumers. The seller, however, would Commission declines to adopt EMA’s increments of five percentage points have discretion to disclose the proposed language for neat biodiesel. In (e.g., ‘‘contains biodiesel in amounts percentage of biodiesel or biomass- light of the final amendments, which between B–10 and B–15’’). based diesel in blends up to twenty now require different labels for neat Concentrations of More than Twenty percent.17 biodiesel and neat biomass-based diesel, Percent By contrast, as noted in NBB’s retailers may only label a fuel as Commenters generally supported the comment, the performance of blends ‘‘Biodiesel’’ if it meets the definition of Commission’s proposal to require a containing more than twenty percent ‘‘biodiesel’’ in Part 306.0, which specific designation when disclosing the biodiesel is uncertain and can vary specifically incorporates ASTM D6751 presence of more than twenty percent significantly. In addition, we by reference. biodiesel and/or biomass-based diesel in understand that there are no biomass- based diesel fuels currently marketed at E. Allowing Nonspecific Percentage a blend. NBB explained that for blends exceeding twenty percent, concentrations above twenty percent, Designations (‘‘Biodiesel Blend’’) for and the properties of any such fuels that Blends at Concentrations of Up to performance varies based on climate, may be marketed in the future are Twenty Percent and Requiring Specific raw materials, and equipment, which unknown. Moreover, the commenters Designations (‘‘B–XX’’) for means consumers need to be more did not object to a specific designation Concentrations Exceeding Twenty aware of the specific blend level they for biomass-based diesel blends above Percent are purchasing. Further, the impact on twenty percent. Therefore, the equipment of higher blends has not In the NPRM, the Commission sought Commission is retaining the specific been thoroughly tested and there is a comment on whether it should revise percentage designation requirement for higher likelihood of known problems the Fuel Rating Rule to require a biodiesel and biomass-based diesel or issues with high blends that are not specific designation (e.g., ‘‘B–15’’) of the blends of more than twenty percent. The present or are of lesser importance percentage of biodiesel and/or biomass- Commission further notes that this when using blends of B20 or lower. based diesel in a blend. As proposed in requirement will provide information of Blends higher than 20% can not be the NPRM, the amendments would have interest to those consumers who favor a considered a direct replacement for required specific designations for fuel blend with a high percentage of petroleum diesel fuel and may require concentrations in excess of twenty nonpetroleum components.18 significant additional precautions, percent, and allowed, but not required, handling and maintenance the designations for concentrations up 17 See note 23, infra, and accompanying text. considerations as well as potential to twenty percent. 18 Commenters raised two additional topics that fuel system and engine modification. went beyond the scope of EISA or the Fuel Rating COMMENTS: Comments from AAM, EMA, ADM, and Rule. First, API asserted that biodiesel may not be compatible with ‘‘the existing retail-diesel Concentrations of Twenty Percent or BP all concurred with NBB’s position. infrastructure’’ and states that ‘‘[t]his is an area that Less The only objection to a specific we believe should be addressed.’’ Second, All commenters agreed that the final designation came from ATA, which individual commenter Jeff Cohan inquired about amendments should not require a argued for disclosure of concentration accuracy of media reports concerning the interaction of biodiesel fuels and fuel efficiency specific percentage disclosure at levels using five percentage point requirements. As these comments involve matters concentrations of twenty percent or less. increments for blends at all beyond the scope of this rulemaking, the Several noted that compliance with concentrations. Commission does not address them.

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VI. Final Amendments to the Fuel fuel labels. The current rating Section 205 of the Act, and consistent Rating Rule requirements in Part 306.5 and the with the FTC’s authority under PMPA, In light of the comments described certification procedures in Part 306.6 the final amendments address labeling above, and pursuant to EISA’s directive, provide the means to substantiate fuel for fuels containing biodiesel and/or the Commission is amending the Fuel ratings throughout the chain of sale. biomass-based diesel at four different 22 Rating Rule to: 1) incorporate the Specifically, under the current Rule, concentration levels. First, retailers do definitions for the terms ‘‘biomass-based refiners, importers, producers, and not have to disclose the presence of five diesel,’’ ‘‘biodiesel,’’ and ‘‘biomass- distributors of alternative liquid percent or less biodiesel and/or five based diesel and biodiesel blends’’ automotive fuels must have ‘‘competent percent or less biomass-based diesel in contained in Section 205 of EISA; 2) and reliable evidence’’ supporting their a fuel, provided that the fuel meets the revise the definition of ‘‘automotive advertised fuel rating (Sec. 306.5(b) and specifications contained in ASTM D975. fuel’’ to make clear that those fuels are Sec. 306.8(b)). In addition, sellers must Second, for fuel blends containing more subject to the rating, certification, and certify that percentage when they than five percent but no more than posting requirements of the Fuel Rating transfer the fuel to anyone other than a twenty percent biomass-based diesel or Rule; and 3) require labeling of fuels consumer (Sec. 306.6 and Sec. biodiesel, the label contains the 20 containing more than five percent 306.8(c)). language required by Section 205(b)(2) biomass-based diesel and/or more than Finally, to comply with EISA’s of EISA. Third, for fuels containing five percent biodiesel, consistent with labeling requirements, the final biodiesel or biomass-based diesel at the language in Section 205 of EISA and amendments make minor changes to the concentrations of more than twenty state model rules proposed by the rating and certification provisions of the percent but less than 100 percent, the National Conference on Weights and Rule for biodiesel fuel blends. First, the label contains the language required by Measures (‘‘NCWM’’). final amendments modify language in Section 205(b)(3) of EISA. Finally, the Rule’s certification provision pursuant to the Commission’s authority A. Definitions (306.5(b)) to clarify that biodiesel and under PMPA and consistent with EISA’s As noted above, Section 205 of EISA biomass-based diesel blends should be direction, the final amendments require requires the Commission to promulgate rated by the percentage of biodiesel and/ labels for neat (i.e., 100 percent) labeling requirements for ‘‘biomass- or biomass-based diesel fuel in the biodiesel and biomass-based diesel. based diesel,’’ ‘‘biodiesel,’’ and blend, not necessarily by the percentage In addition to the specific disclosures ‘‘biomass-based diesel and biodiesel of the principal component of the fuel required by EISA, the labels contain fuel blends,’’ as those terms are defined in like other alternative fuels.21 Second, terms on their headings that are the Section 205(c) of the statute. The the certification requirements in Part consistent with both the draft model Commission, therefore, adds the 306.6(b) currently allow transferors of rules proposed by the NCWM and the statutorily required terms to Part 306.0 alternative automotive fuels to certify Fuel Rating Rule’s treatment of other of the Fuel Rating Rule. Additionally, fuel ratings with a letter of certification, alternative fuels. Specifically, as the Commission adds ‘‘biomass-based which remains valid so long as the fuel proposed in the NPRM, the heading in diesel blend’’ and ‘‘biodiesel blend’’ as transferred contains the same or a a label for a biodiesel blend containing separate terms to allow for separate greater rating of the principal more than five but no more than twenty rating, certification, and labeling component. However, a change in the percent biodiesel must display either: 1) requirements. concentration of biodiesel or biomass- the capital letter ‘‘B’’ followed first by based diesel in an automotive fuel may a numeric representation of the B. Alternative Fuels, Automotive Fuel trigger different labeling requirements percentage of biodiesel and then by the Rating, and Certification under EISA even if the concentration of term ‘‘Biodiesel Blend,’’ such as ‘‘B-20 Part 306.0(i)(2) of the Rule currently the principal fuel increases (e.g., a Biodiesel Blend’’; or 2) the term lists examples of alternative fuels, but change from B-25 to B-20). Therefore, ‘‘Biodiesel Blend.’’23 Similarly, as specifically states that alternative fuels the final amendment to Part 306.6(b) discussed above, the Commission has are ‘‘not limited to’’ those listed. The states that if transferors of biodiesel revised the proposed labels so that the final amendments expressly add fuels choose to use a letter of heading for biomass-based diesel blends biomass-based diesel and biodiesel, as certification, that letter will be valid in the same more than five but no more well as blends containing more than five only as long as the fuel transferred than twenty percent concentration percent biodiesel and/or five percent contains the same percentage of category must display either: 1) a biomass-based diesel, to this biodiesel or biomass-based diesel as numeric representation of the nonexclusive list. By specifically previous fuel transfers covered by the percentage of biomass-based diesel including these terms, the final letter. followed first by the percent symbol (%) and then by the term ‘‘Biomass-Based amendments clarify that these fuels are C. Labeling covered by the rating and certification Diesel Blend,’’ such as ‘‘20% Biomass- requirements of Part 306 of the Rule.19 The labeling requirements in the final Based Diesel Blend’’; or 2) the term Incorporating biodiesel fuels into the amendments employ the language ‘‘Biomass-Based Diesel Blend.’’ Fuel Rating Rule and subjecting them to mandated by EISA. In accordance with For biodiesel and biomass-based these rating and certification diesel blends containing more than requirements should help ensure the 20 As the Commission explained in the NPRM, an entity blending biodiesel fuels is responsible for 22 Appendix (‘‘App.’’) A summarizes the labeling accuracy of the information on biodiesel determining the amount of biodiesel and/or requirements for biodiesel fuels at each of these biomass-based diesel in the fuel it sells. This concentrations. 19 Consistent with EISA (Sec. 205(b)(1)), the final includes the need to account for biodiesel and/or 23 The choice of designation (e.g., ‘‘B-15 Biodiesel amendments to Part 306.0 indicate that biodiesel biomass-based diesel in any diesel fuel (e.g., diesel Blend’’ or ‘‘Biodiesel Blend’’) is at the discretion of blends and biomass-based diesel blends that fuel containing biodiesel at five percent or less) it the seller. Giving sellers this choice is consistent contain less than or equal to five percent biomass- uses to create blends that must be rated, certified, with the model rules under consideration by the based diesel and less than or equal to five percent or labeled under the Rule. NCWM and with Section 205 of EISA, which biodiesel by volume, and that meet ASTM D975, are 21 For example, a twenty-five percent biodiesel/ require disclosing only that the fuel contains not automotive fuels covered by the requirements diesel blend should be rated as twenty-five percent between five and twenty percent biodiesel or of this Rule. biodiesel, not seventy-five percent diesel. biomass-based diesel, rather than a specific amount.

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twenty percent, the final amendments Consistent with the Fuel Rating Rule’s B. Changes to the Proposed Labeling require a specific blend designation requirements for other alternative fuels, Requirements (e.g., ‘‘B-80’’ for biodiesel and ‘‘80%’’ the final amendments require refiners, As explained in detail above, the for biomass-based diesel) in the producers, importers, distributors, and Commission has revised its labeling heading. The Commission has slightly retailers of biodiesel fuels to retain, for requirements to provide for separate revised the proposed requirements so one year, records of any delivery tickets, labeling of biodiesel and biomass-based that the designation is followed by letters of certification, or tests upon diesel. As amended, the label either the term ‘‘Biodiesel Blend’’ or which they based the automotive fuel requirements make clear that retailers ‘‘Biomass-Based Diesel Blend,’’ as ratings that they certify or post. The need not disclose the presence of five appropriate. Finally, as explained covered parties also must make these percent or less biodiesel or biomass- above, the final amendments provide for records available for inspection by based diesel in a fuel blend. This final neat biodiesel and biomass-based diesel Commission and EPA staff as well as by amendment reduces the burden on labels. The heading for these fuels must persons authorized by the Commission covered entities because it makes clear display either ‘‘B-100 Biodiesel’’ or or EPA. Finally, retailers must produce, that retailers need not label fuels that ‘‘100% Biomass-Based Diesel,’’ along distribute, and post fuel rating labels on cumulatively contain more than five with the explanatory text of either fuel pumps. percent biodiesel and biomass-based ‘‘contains 100 percent biodiesel’’ or In its NPRM, the Commission diesel, but less than five percent of each. ‘‘contains 100 percent biomass-based provided estimated recordkeeping and However, the final amendments also diesel.’’ Inclusion of these terms on the disclosure burdens for entities covered could conceivably require a retailer to label is consistent with draft model under the Rule and sought comment on use two labels for a fuel blend that rules currently under consideration by the accuracy of those estimates. contained more than five percent 24 the NCWM, and with the Fuel Rating Commenters have not disputed those biodiesel and more than five percent Rule’s labels for other alternative fuels, estimates, and the Office of Management biomass-based diesel. which must disclose the type of and Budget (‘‘OMB’’) has approved the Notwithstanding this possibility, the alternative fuel on the heading of the collections of information required by Commission is not changing its burden label (e.g., ‘‘E-85’’ for eighty-five percent the amendments. estimates. Specifically, there is no ethanol blends). evidence that retailers are selling any The final amendments also specify The Commission believes that the minor changes made since the NPRM do fuel blends containing more than five the size, font, and format requirements percent biomass-based diesel and, for the draft labels. These requirements not affect the previous burden estimate. In the following sections, the therefore, no evidence that any retailer are consistent with those in place for will incur the burden of posting two other alternative liquid fuels in the Rule Commission discusses comments regarding burden estimates in more labels on a fuel dispenser. In the NPRM, (see Sec. 306.12). The Rule requires a the Commission specifically sought 25 detail, explains why it believes those blue (PMS 277 or its equivalent) comments on the market for biomass- background for labels disclosing the estimates are not affected by the revisions, and restates those estimates. based diesel. Other than presence of biodiesel and an orange ConocoPhillip’s acknowledgment that it background (PMS 1495 or its A. Comments on Burden to Covered markets renewable diesel blends at an equivalent) for biomass-based diesel. Entities unspecified concentration, the The blue background for biodiesel will Commission received no comments in allow retail consumers easily to Significantly, the commenters did not dispute the Commission’s estimates of response to this request. Based on this distinguish biodiesel blends from record, and the lack of any objection to biomass-based diesel, as well as other burden, nor did they identify a burden that the Commission did not discuss in the Commission’s burden analysis in the fuels sold at retail pumps (e.g., the NPRM, the Commission assumes that the NPRM. Indeed, individual yellow octane label), and will help there is no significant burden impact commenter Johnas Carson affirmed that minimize the likelihood that consumers from the revisions.27 will use the wrong fuel in their vehicle. ‘‘the costs of the decals and installation In addition, the final amendments quoted in this notice are accurate.’’ NBB C. The Recordkeeping and Disclosure require, as for other alternative fuels, the described these costs as ‘‘minor.’’ Burdens text to be in Helvetica black type and Similarly, PMAA, an association of The Commission previously estimated centered on the label. The Commission independent fuel retailers, stated that the burden associated with the Fuel is amending Part 306.12(f) to provide ‘‘[c]osts associated with the rulemaking Rating Rule’s recordkeeping sample illustrations of biodiesel and are minimal so long as the requirements requirements to be no more than five biomass-based diesel labels. are written in a flexible manner that minutes per year per industry member, would not require dispenser owners to VII. Paperwork Reduction Act and it previously estimated the burden affix new labels every time there is a associated with the Rule’s disclosure The certification and labeling change in the biodiesel blend requirements to affect no more than 1/ requirements announced in this notice concentration.’’ The final amendments 8th of industry members in any given constitute a ‘‘collection of information’’ announced in this notice retain such year at one hour per member affected– under the Paperwork Reduction Act of flexibility by not requiring a specific or, averaged across all industry 1995 (44 U.S.C. 3501-3520) (‘‘PRA’’). percentage designation for fuel blends members, 1/8th hour per year. These containing twenty percent or less estimated burdens do not include 24 See ‘‘National Conference on Weights and biodiesel or biomass-based diesel.26 Measures Laws and Regulations Committee & recordkeeping in which covered Petroleum Subcommittee Interim Meeting for the 93rd NCWM Annual Conference; Supplement to 26 While not commenting on the burden estimate, 27 The Commission has also revised its labeling NCWM Publication 15’’ (Section 3.15). ATA urged that ‘‘[c]entrally fueled fleets should not requirements to substitute blue for purple as the 25 Pantone Matching System. We are also be subject to the labeling requirements, as they do background color and to require different headers amending the Rule to allow the use of non-Pantone not sell fuel to the public . . . .’’ As amended, the for biomass-based diesel blends and pure biomass- equivalents for all alternative fuels to prevent labeling requirements of the Fuel Rating Rule apply based diesel fuel. These changes are cosmetic and unnecessarily favoring the Pantone system over only to retailers that sell to the ‘‘general public.’’ 16 do not impact the recordkeeping or disclosure other suitable color schemes. CFR 306.0(f). burdens.

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industry members already engage in VIII. Regulatory Flexibility Act providing a final analysis in order to 28 their normal course of business. The Regulatory Flexibility Act inquire into the impact of the final Because the procedures for (‘‘RFA’’), 5 U.S.C. 601-612, requires an amendments on small entities. distributing and selling biodiesel fuels agency to provide a Final Regulatory Therefore, the Commission has prepared are no different from those for other Flexibility Analysis with a final rule, the following analysis. automotive fuels, the Commission unless the agency certifies that the rule A. Statement of the need for, and expects that, consistent with practices will not have a significant economic objectives of, the final amendments impact on a substantial number of small in the fuel industry generally, the Section 205 of EISA requires the entities. See 5 U.S.C. 603–605. covered parties in the biodiesel fuel Commission to promulgate biodiesel In light of the comments submitted in industry will record the fuel rating fuel labeling requirements that inform response to the NPRM, the FTC certification on documents (e.g., consumers of the percent of biomass- reaffirms its belief that the final shipping receipts) already in use, or will based diesel or biodiesel contained in a amendments will not have a significant employ a one-time letter of certification. fuel sold at a retail pump. The economic impact on a substantial Furthermore, the Commission expects Commission is publishing these final number of small entities. As explained that labeling of biodiesel fuel pumps amendments in compliance with that in Section VII above, each entity in the will be consistent with practices in the congressional requirement. fuel industry generally. The information biodiesel industry will spend, at most, collection burden, therefore, will be the five minutes per year complying with B. Issues raised by comments in same as for other automotive fuels: five the recordkeeping requirements and 1/ response to the initial regulatory minutes per year for recordkeeping and 8th hour per year complying with the flexibility analysis 1/8th hour per year for disclosure. disclosure requirements. Staff estimates Commenters did not raise any specific Based on statistics provided by NBB, the mean hourly wage for employees of issues with respect to the regulatory producers, importers, and distributors of flexibility analysis in the NPRM. As the Commission estimates that there are 30 approximately 200 producers, 1500 biodiesel fuels to be $21.39, and the noted above, commenters, including an mean hourly wage for employees of association of independent fuel retailers, and 2000 distributors of 31 biodiesel.29 Conservatively assuming biodiesel retailers to be $14.35. retailers, supported adding biodiesel that each producer, distributor, and Conservatively assuming that all fuels to the coverage of the Fuel Rating retailer of biodiesel is a distinct entity, biodiesel producers, distributors, and Rule. Furthermore, the commenters and that each seller of biodiesel will retailers are small entities, compliance agreed that the recordkeeping and spend five minutes (or 1/12th hour) per with the recordkeeping requirements disclosure burdens of the final year complying with the recordkeeping will cost producers and distributors amendments are ‘‘minimal.’’ $1.78 per year ($21.39 x 1/12th hour) requirements, and assuming that each C. Estimate of the number of small retailer will spend 1/8th hour per year and retailers $1.20 ($14.35 x 1/12th hour). In addition, under the same entities to which the final amendments complying with the disclosure will apply requirements, the Commission estimates conservative assumptions, compliance an incremental annual burden of 308 with the disclosure requirements will As discussed above, the biodiesel fuel hours for recordkeeping (1/12th hour cost retailers $1.79 ($14.35 x 1/8th industry is young and still developing. per year x 3700 entities) and 188 hours hour). Although the Commission has evidence Retailers will also incur the cost of for disclosure (1/8th hour per year x of the size of the industry generally, it procuring and replacing fuel dispenser 1,500 retailers). does not have any evidence regarding labels to comply with the disclosure the number of small businesses within D. Approval by OMB requirements of the Rule. The that industry. In the NPRM, the Commission has previously estimated Commission assumed that all industry Pursuant to the PRA, 44 U.S.C. 3501– that the price per automotive fuel label members are small businesses, and none 3521, the FTC submitted to OMB for is approximately fifty cents and that the of the commenters disagreed with that review and approval the collections of average automotive fuel retailer has six assumption. Accordingly, the information contained in the Rule. On dispensers. Applying those estimates to Commission reaffirms its assumption for May 23, 2008, under OMB Control No. the biodiesel fuel industry results in an the purposes of this regulatory 3084–0068, OMB granted approval initial cost to retailers of $3.00 (6 pumps flexibility analysis that the 200 through May 31, 2011. x $0.50). In addition, the Commission producers, 1500 retailers, and 2000 has previously estimated the useful life distributors of biodiesel are all small 28 For OMB purposes, ‘‘burden’’ does not include of dispenser labels to range from six to businesses. efforts to comply with a collection of information ten years. Assuming a useful life of eight that a covered party would expend in any event. 5 years, the mean of that range, and D. Projected reporting, recordkeeping, CFR 1320.3(b)(2). and other compliance requirements 29 Because the biodiesel industry is young, distributing the costs on a per-year estimates of its size may not be as accurate as basis, staff estimates the total annual The final amendments make clear that estimates of the size of more mature industries. replacement labeling cost to be $0.06 (1/ the recordkeeping and certification Therefore, we have conservatively rounded up from the actual statistics provided by the NBB. In a 8 x $0.50). requirements of the Fuel Rating Rule document dated January 25, 2008, the NBB This document serves as notice to the apply to biodiesel fuels. Small entities estimated a total of 171 producers of biodiesel and Small Business Administration of the potentially affected are producers, biodiesel blends. See (http://www.biodiesel.org/ agency’s certification of no effect. distributors, and retailers of biodiesel _ _ pdf files/fuelfactsheets/Production Capacity.pdf.) Nonetheless, the Commission is In addition, the NBB’s website lists all known fuels. The Commission expects that the distributors (http://www.biodiesel.org/ recordkeeping and certification tasks are buyingbiodiesel/distributors/showall.asp) and 30 Bureau of Labor Statistics, 2006 Employment done by industry members in the retailers (http://www.biodiesel.org/buyingbiodiesel/ Statistics Survey, Annual Average Hourly Earnings normal course of their business. retailfuelingsites/showall.asp) of biodiesel. As of for Oil and Gas Extraction Production workers. February 4, 2008, the site listed approximately 1250 31 Bureau of Labor Statistics, May 2006 Accordingly, we do not expect the final retailers and 1775 distributors of biodiesel and Occupational Employment Statistics Survey, amendments to require any professional biodiesel blends. ‘‘Correspondence Clerks,’’ Table 1. skills beyond those of persons already

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employed by industry members, § 306.0 Definitions. (3) For biomass-based diesel, namely, administrative. * * * * * biodiesel, biomass-based diesel blends (i) * * * with more than five percent biomass- E. Alternatives Considered (2) Alternative liquid automotive based diesel, and biodiesel blends with Section 205 of EISA requires that fuels, including, but not limited to: more than five percent biodiesel, a ‘‘[e]ach retail diesel fuel pump be (i) Methanol, denatured ethanol, and disclosure of the biomass-based diesel labeled in a manner that informs other alcohols; or biodiesel component, expressed as consumers of the percent of biomass- (ii) Mixtures containing 85 percent or the percentage by volume. based diesel or biodiesel that is more by volume of methanol, denatured (k) Biomass-based diesel means a contained in the biomass-based diesel or ethanol, and/or other alcohols (or such diesel fuel substitute produced from biodiesel blend that is offered for sale, other percentage, but not less than 70 nonpetroleum renewable resources that as determined by the Federal Trade percent, as determined by the Secretary meets the registration requirements for Commission.’’ The Commission, of the United States Department of fuels and fuel additives established by therefore, must require covered entities Energy, by rule, to provide for the Environmental Protection Agency to accurately rate, certify, and label requirements relating to cold start, under 42 U.S.C. 7545, and includes fuel biodiesel fuels. safety, or vehicle functions), with derived from animal wastes, including The Commission has amended the gasoline or other fuels; poultry fats and poultry wastes, and Fuel Rating Rule in a manner that (iii) Liquefied natural gas; other waste materials, or from minimizes the economic impact, if any, (iv) Liquefied petroleum gas; municipal solid waste and sludges and (v) Coal-derived liquid fuels; from Section 205’s labeling oils derived from wastewater and the (vi) Biodiesel; requirements. As explained above, the treatment of wastewater, except that the (vii) Biomass-based diesel; term does not include biodiesel as Commission has designed the rating, (viii) Biodiesel blends containing certification, and labeling requirements defined in this Part. more than 5 percent biodiesel by (l) Biodiesel means the monoalkyl so that industry members may use volume; and esters of long chain fatty acids derived documents already in use to certify a (ix) Biomass-based diesel blends from plant or animal matter that meet: biodiesel fuel’s rating. Furthermore, the containing more than 5 percent the registration requirements for fuels Commission is promulgating labeling biomass-based diesel by volume. and fuel additives under 40 CFR Part 79; provisions requiring only language (3) Biodiesel blends and biomass- and the requirements of the American specifically provided by Section 205 or based diesel blends that contain less Society for Testing and Materials necessary to inform consumers of the than or equal to 5 percent biodiesel by standard D6751–07b (‘‘Standard percentage of biodiesel or biomass- volume and less than or equal to 5 Specification for Biodiesel Fuel Blend based diesel contained in a fuel. percent biomass-based diesel by Stock (B100) for Middle Distillate Moreover, the commenters have not volume, and that meet American Fuels’’). The incorporation of ASTM identified any alternative requirements Society for Testing and Materials D6751–07b by reference was approved that would reduce this burden. (‘‘ASTM’’) standard D975-07b by the Director of the Federal Register Accordingly, the Commission concludes (‘‘Standard Specification for Diesel Fuel in accordance with 5 U.S.C. 552(a) and that there are no alternative Oils’’), are not automotive fuels covered 1 CFR Part 51. Copies of ASTM D6751– requirements that would reduce the by the requirements of this Part. The 07b may be obtained from ASTM burden on industry members and satisfy incorporation of ASTM D975-07b by International, 1916 Race Street, EISA’s mandate. reference was approved by the Director Philadelphia, PA, 19103, or may be IX. Final Rule Language of the Federal Register in accordance inspected at the Federal Trade with 5 U.S.C. 552(a) and 1 CFR Part 51. Commission, Public Reference Room, List of Subjects in 16 CFR Part 306 Copies of ASTM D975-07b may be Room 130, 600 Pennsylvania Avenue, Energy conservation, Gasoline, obtained from ASTM International, N.W., Washington, D.C., or at NARA. Incorporation by reference, Labeling, 1916 Race Street, Philadelphia, PA, For information on the availability of Reporting and recordkeeping 19103, or may be inspected at the this material at NARA, call 202–741– requirements. Federal Trade Commission, Public 6030, or go to: (http://www.archives.gov/ Reference Room, Room 130, 600 _ _ I For the reasons set out above, the federal register/cfr/ibr locations.html). Pennsylvania Avenue, N.W., Commission amends 16 CFR Part 306 as (m) Biodiesel blend means a blend of Washington, D.C., or at the National follows: petroleum-based diesel fuel with Archives and Records Administration biodiesel. PART 306—AUTOMOTIVE FUEL (NARA). For information on the (n) Biomass-based diesel blend means RATINGS, CERTIFICATION AND availability of this material at NARA, a blend of petroleum-based diesel fuel POSTING call 202–741–6030, or go to: (http:// with biomass-based diesel. www.archives.gov/federal_register/cfr/ I 3. Section 306.5(b) is revised to read I 1. The authority citation for part 306 ibr_locations.html.) as follows: continues to read as follows: (j) * * * § 306.5 Automotive fuel rating. AUTHORITY: 15 U.S.C. 2801 et seq.; Pub. (2) For an alternative liquid L. 110-140. automotive fuel other than biodiesel, * * * * * biomass-based diesel, biodiesel blend, (b) To determine automotive fuel I 2. Section 306.0 is amended as or biomass-based diesel blend, the ratings for alternative liquid automotive follows: commonly used name of the fuel with fuels other than biodiesel blends and I a. Paragraph (i)(2) is revised. a disclosure of the amount, expressed as biomass-based diesel blends, you must I b. Paragraph (i)(3) is added. a minimum percentage by volume, of possess a reasonable basis, consisting of I c. Paragraph (j)(2) is revised. the principal component of the fuel. A competent and reliable evidence, for the I d. Paragraph (j)(3) is added. disclosure of other components, percentage by volume of the principal I e. Paragraphs (k), (l), (m), and (n) are expressed as a minimum percentage by component of the alternative liquid added. volume, may be included, if desired. automotive fuel that you must disclose.

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In the case of biodiesel blends, you must (6) ‘‘LNG/Minimum ___% Methane’’ inches (6.35 cm) long. ‘‘Helvetica black’’ possess a reasonable basis, consisting of (7) ‘‘B–20 Biodiesel Blend/contains type is used throughout. All type is competent and reliable evidence, for the biomass-based diesel or biodiesel in centered. The band at the top of the percentage of biodiesel contained in the quantities between 5 percent and 20 label contains either: fuel, and in the case of biomass-based percent’’ (A) The capital letter ‘‘B’’ followed diesel blends, you must possess a (8) ‘‘20% Biomass-Based Diesel immediately by the numerical value reasonable basis, consisting of Blend/contains biomass-based diesel or representing the volume percentage of competent and reliable evidence, for the biodiesel in quantities between 5 biodiesel in the fuel (e. g., ‘‘B–20’’) and percentage of biomass-based diesel percent and 20 percent’’ then by the term ‘‘Biodiesel Blend’’; or contained in the fuel. You also must (9) ‘‘B–100 Biodiesel/contains 100 (B) The term ‘‘Biodiesel Blend.’’ have a reasonable basis, consisting of percent biodiesel’’ (ii) The band should measure 1 inch competent and reliable evidence, for the (10) ‘‘100% Biomass-Based Diesel/ (2.54 cm) deep. Spacing of the text in minimum percentages by volume of contains 100 percent biomass-based the band is 1/4 inch (.64 cm) from the other components that you choose to diesel’’ top of the label and 3/16 inch (.48 cm) disclose. I from the bottom of the black band, 6. Section 306.12 is amended as centered horizontally within the black I 4. Section 306.6(b) is revised to read follows: I band. Directly underneath the black as follows: a. Paragraph (a)(2) is revised. band, the label shall read ‘‘contains I b. Paragraphs (a)(4) through (a)(9) are § 306.6 Certification. biomass-based diesel or biodiesel in added. quantities between 5 percent and 20 * * * * * I c. Paragraph (c)(2) is revised and (b) Give the person a letter or other percent.’’ The script underneath the paragraph (c)(3) is added. black band must be centered written statement. This letter must I d. Graphics are added at the end of the horizontally, with 1/8 inch (.32 cm) include the date, your name, the other section. person’s name, and the automotive fuel between each line. The bottom line of rating of any automotive fuel you will § 306.12 Labels. type is 1/4 inch (.64 cm) from the transfer to that person from the date of * * * * * bottom of the label. All type should fall the letter onwards. Octane rating (a) * * * no closer than 3/16 inch (.48 cm) from numbers may be rounded to a whole or (2) For alternative liquid automotive the side edges of the label. (5) For biomass-based diesel blends half number equal to or less than the fuel labels (one principal component) containing more than 5 percent and no number determined by you. This letter other than biodiesel, biomass-based greater than 20 percent biomass-based of certification will be good until you diesel, biodiesel blends, and biomass- diesel by volume. (i) The label is 3 transfer automotive fuel with a lower based diesel blends. The label is 3 inches (7.62 cm) wide × 21⁄2 inches (6.35 automotive fuel rating, except that a inches (7.62 cm) wide × 21⁄2 inches (6.35 cm) long. ‘‘Helvetica black’’ type is used letter certifying the fuel rating of cm) long. ‘‘Helvetica black’’ type is used throughout. All type is centered. The biomass-based diesel, biodiesel, throughout. All type is centered. The band at the top of the label contains biomass-based diesel blend, and/or band at the top of the label contains the either: biodiesel blend will be good only until name of the fuel. This band should (A) The numerical value representing you transfer those fuels with a different measure 1 inch (2.54 cm) deep. Spacing the volume percentage of biomass-based automotive fuel rating, whether the of the fuel name is 1/4 inch (.64 cm) diesel in the fuel followed immediately rating is higher or lower. When this from the top of the label and 3/16 inch by the percentage symbol (e.g., ‘‘20%’’) happens, you must certify the (.48 cm) from the bottom of the black and then by the term ‘‘Biomass-Based automotive fuel rating of the new band, centered horizontally within the Diesel Blend’’; or automotive fuel either with a delivery black band. The first line of type (B) The term ‘‘Biomass-Based Diesel ticket or by sending a new letter of beneath the black band is 1/8 inch (.32 Blend.’’ certification. cm) from the bottom of the black band. (ii) The band should measure 1 inch * * * * * All type below the black band is (2.54 cm) deep. Spacing of the text in I 5. Section 306.10(f) is revised to read centered horizontally, with 1/8 inch (.32 the band is 1/4 inch (.64 cm) from the as follows: cm) between each line. The bottom line top of the label and 3/16 inch (.48 cm) of type is 3/16 inch (.48 cm) from the from the bottom of the black band, § 306.10 Automotive fuel rating posting. bottom of the label. All type should fall centered horizontally within the black * * * * * no closer than 3/16 inch (.48 cm) from band. Directly underneath the black (f) The following examples of the side edges of the label. If you wish band, the label shall read ‘‘contains automotive fuel rating disclosures for to change the dimensions of this single biomass-based diesel or biodiesel in some presently available alternative component label to accommodate a fuel quantities between 5 percent and 20 liquid automotive fuels are meant to descriptor that is longer than shown in percent.’’ The script underneath the serve as illustrations of compliance with the sample labels, you must petition the black band must be centered this part, but do not limit the Rule’s Federal Trade Commission. You can do horizontally, with 1/8 inch (.32 cm) coverage to only the mentioned fuels: this by writing to the Secretary of the between each line. The bottom line of (1) ‘‘Methanol/Minimum ___% Federal Trade Commission, type is 1/4 inch (.64 cm) from the Methanol’’ Washington, D.C. 20580. You must state bottom of the label. All type should fall (2) ‘‘Ethanol/Minimum ___% the size and contents of the label that no closer than 3/16 inch (.48 cm) from Ethanol’’ you wish to use, and the reasons that the side edges of the label. (3) ‘‘M—85/Minimum ___% you want to use it. (6) For biodiesel blends containing Methanol’’ * * * * * more than 20 percent biodiesel by (4) ‘‘E—85/Minimum ___% Ethanol’’ (4) For biodiesel blends containing volume. The requirements are the same (5) ‘‘LPG/Minimum ___% Propane’’ or more than 5 percent and no greater than as in paragraph (a)(4) of this section, ‘‘LPG/Minimum ___% Propane and 20 percent biodiesel by volume. (i) The except that the black band at the top of ___% Butane’’ label is 3 inches (7.62 cm) wide × 21⁄2 the label shall contain the capital letter

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‘‘B’’ followed immediately by the the black band shall read ‘‘contains (c) **** numerical value representing the more than 20 percent biomass-based (2) For alternative liquid automotive volume percentage of biodiesel in the diesel or biodiesel.’’ fuel labels other than biodiesel and fuel (e.g., ‘‘B–70’’) and then the term (8) For 100% biodiesel. The biodiesel blends. The background color ‘‘Biodiesel Blend.’’ In addition, the requirements are the same as in on all the labels is Orange: PMS 1495 or words directly underneath the black paragraph (a)(4) of this section, except its equivalent. The knock-out type band shall read ‘‘contains more than 20 that the black band at the top of the percent biomass-based diesel or within the black band is Orange: PMS label shall contain the phrase ‘‘B-100 1495 or its equivalent. All other type is biodiesel.’’ Biodiesel.’’ In addition, the words (7) For biomass-based diesel blends process black. All borders are process directly underneath the black band shall black. All colors must be non-fade. containing more than 20 percent read ‘‘contains 100 percent biodiesel.’’ biomass-based diesel by volume. The (3) For biodiesel and biodiesel blends. requirements are the same as in (9) For 100% biomass-based diesel. The background color on all the labels paragraph (a)(5) of this section, except The requirements are the same as in is Blue: PMS 277 or its equivalent. The paragraph (a)(5) of this section, except that the black band at the top of the knock-out type within the black band is that the black band at the top of the label shall contain the numerical value Blue: PMS 277 or its equivalent. All label shall contain the phrase ‘‘100% representing the volume percentage of other type is process black. All borders Biomass-Based Diesel.’’ In addition, the biomass-based diesel in the fuel are process black. All colors must be words directly underneath the black followed immediately by the percentage non-fade. symbol (e.g., ‘‘70%’’) and then the term band shall read ‘‘contains 100 percent ‘‘Biomass-Based Diesel Blend.’’ In biomass-based diesel.’’ * * * * * addition, the words directly underneath * * * * * (f)* * *

I 7. Appendix A to Part 306 is added to read as follows:

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APPENDIX A TO PART 306 - SUMMARY OF LABELING REQUIREMENTS FOR BIODIESEL FUELS (Part 1 of 2)

Blends of more than 5 but not more than 20 percent Fuel type Blends of 5 percent or less Header Text Color

Biodiesel No label required Either ‘‘B-XX Biodiesel contains biomass- Blue Blend’’ or ‘‘Biodiesel based diesel or bio- Blend’’ diesel in quantities be- tween 5 percent and 20 percent

Biomass-Based Diesel No label required Either ‘‘XX% Biomass- contains biomass- Orange Based Diesel Blend’’ or based diesel or bio- ‘‘Biomass-Based Diesel diesel in quantities be- Blend’’ tween 5 percent and 20 percent

APPENDIX A TO PART 306 - SUMMARY OF LABELING REQUIREMENTS FOR BIODIESEL FUELS (Part 2 of 2)

Blends of more than 20 percent Pure (100%) Biodiesel or Biomass-Based diesel Fuel type Header Text Color Header Text Color

Biodiesel B-XX Biodiesel contains more Blue B-100 Biodiesel contains 100 Blue Blend than 20 percent percent biodiesel biomass-based diesel or bio- diesel

Biomass-Based Diesel XX% Biomass- contains more Orange 100% Biomass- contains 100 Orange Based Diesel than 20 percent Based Diesel percent biomass- Blend biomass-based based diesel diesel or bio- diesel

By direction of the Commission. Richard C. Donohue, Acting Secretary. [FR Doc. E8–15245 Filed 7–10–08: 8:45 am] BILLING CODE 6751–01–S

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Reader Aids Federal Register Vol. 73, No. 134 Friday, July 11, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

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. 14 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: 39 ...... 37353, 37355, 37358, 37775, 37778, 37781, 37783, The United States Government Manual 741–6000 8272...... 38297 (Proc. 7912 of 6/29/ 37786, 37789, 37791, 37793, Other Services 2005 See: Proc. 37795, 38311, 38883, 38885, Electronic and on-line services (voice) 741–6020 8272) ...... 38297 38887, 38889, 38891, 38893, Privacy Act Compilation 741–6064 (Proc. 8213 of 12/20/ 38895, 38898, 38900, 38905, Public Laws Update Service (numbers, dates, etc.) 741–6043 2007 See: Proc. 39569, 39570, 39572, 39574, 39577, 39579, 39580, 39583 TTY for the deaf-and-hard-of-hearing 741–6086 8272) ...... 38297 (Proc. 8240 of 4/17/ 71 ...... 37797, 38109, 38313, 2008 See: Proc. 38314, 39220, 39221 ELECTRONIC RESEARCH 8272) ...... 38297 97...... 37360 World Wide Web Executive Orders: Proposed Rules: 13467...... 38103 39 ...... 37898, 37900, 37903, Full text of the daily Federal Register, CFR and other publications EO 10450 of 4/27/1953 38160, 38346, 38933, 38935, is located at: http://www.gpoaccess.gov/nara/index.html (see: EO 13467) ...... 38103 38937, 39627, 39628 Federal Register information and research tools, including Public EO 10577 of 11/23/ 71...... 37905 Inspection List, indexes, and links to GPO Access are located at: 1954 (see: EO 15 CFR http://www.archives.gov/federallregister 13467) ...... 38103 EO 10865 of 2/20/1960 336...... 39585 E-mail (see: EO 13467) ...... 38103 745...... 38908 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is EO 12171 of 11/19/ 774...... 38908 an open e-mail service that provides subscribers with a digital 1979 (Amended by: 902...... 39587 form of the Federal Register Table of Contents. The digital form EO 13467)...... 38103 16 CFR of the Federal Register Table of Contents includes HTML and EO 12333 of 12/4/1981 PDF links to the full text of each document. (see: EO 13467) ...... 38103 305...... 39221 306...... 40154 To join or leave, go to http://listserv.access.gpo.gov and select EO 12829 of 1/6/1993 (see: EO 13467) ...... 38103 Online mailing list archives, FEDREGTOC-L, Join or leave the list 17 CFR (or change settings); then follow the instructions. EO 12958 of 4/17/1995 (see: EO 13467) ...... 38103 30...... 39226 PENS (Public Law Electronic Notification Service) is an e-mail EO 12968 of 8/2/1995 200...... 40144 service that notifies subscribers of recently enacted laws. (Amended by: EO 210...... 38094 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 13467) ...... 38103 228...... 38094 and select Join or leave the list (or change settings); then follow EO 13381 of 6/27/2005 229...... 38094 the instructions. (Revoked by: EO 241...... 40144 249...... 38094 FEDREGTOC-L and PENS are mailing lists only. We cannot 13467) ...... 38103 respond to specific inquiries. Administrative Orders: Proposed Rules: Memorandums: 210...... 39526 Reference questions. Send questions and comments about the Memorandum of June 229...... 39526, 40106 Federal Register system to: [email protected] 26, 2008 ...... 37351 230...... 37752, 40106 The Federal Register staff cannot interpret specific documents or 239...... 40106 regulations. 5 CFR 240 ...... 37752, 39182, 40088, 532...... 39213 40106 242...... 40088 FEDERAL REGISTER PAGES AND DATE, JULY 7 CFR 249...... 39526, 40088 37351–37774...... 1 301...... 37775 270...... 40124 37775–38108...... 2 989...... 38307 275...... 40124 1216...... 39214 38109–38306...... 3 18 CFR 38307–38882...... 7 Proposed Rules: 253...... 38155 37...... 39092 38883–39212...... 8 39213–39568...... 9 9 CFR 19 CFR 39569–39856...... 10 Proposed Rules: 201...... 38316 39857–40166...... 11 71...... 38343 210...... 38316 94...... 37892 21 CFR 10 CFR 312...... 39588 Proposed Rules: 314...... 39588 430...... 38159 530...... 38110 600...... 39588 12 CFR 601...... 39588 575...... 39216 1310...... 39611

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22 CFR 31 CFR 40 CFR Proposed Rules: Proposed Rules: Ch. V...... 37536 50...... 39235 1...... 37911 304...... 39270 51...... 39235 27...... 38955 32 CFR 52 ...... 37840, 37841, 37843, 43...... 37911 25 CFR 706...... 38921 37844, 38122, 38124, 38328, 73...... 38361 11...... 39857 Proposed Rules: 39237 Proposed Rules: 199...... 38348 53...... 39235 48 CFR 293...... 37907 726...... 38350 58...... 39235 62...... 38925 Proposed Rules: 33 CFR 26 CFR 63...... 37728, 39871 516...... 39275 1 ...... 37362, 37797, 38113, 100...... 39233, 39235 81...... 38124 552...... 39275 38910, 39227, 39614 110...... 38922, 38924 86...... 38293 117...... 37806, 37809 25...... 37362 174...... 37846 49 CFR 26...... 37362 165 ...... 37809, 37810, 37813, 180 ...... 37850, 37852, 39240, 31...... 37371 37815, 37818, 37820, 37822, 39247, 39251, 39256, 39261, 262...... 39875 53...... 37362 37824, 37827, 37829, 37833, 39264 571...... 38331 55...... 37362 37835, 38120, 39868 261...... 37858 594...... 39890 156...... 37362 Proposed Rules: 266...... 37858 Proposed Rules: 157...... 37362 165...... 38951 Proposed Rules: 171...... 38361 301 ...... 37362, 37804, 38915 34 CFR 52 ...... 38163, 38353, 39275, 173...... 38164, 38361 602...... 37371, 39227 39897, 39900, 39911 177...... 38164 Proposed Rules: Proposed Rules: 55...... 38356 178...... 38361 674...... 37694 1 ...... 37389, 37910, 38162, 62...... 38954 523...... 37922 682...... 37694 38940, 39270, 39630 531...... 37922 685...... 37694 42 CFR 26...... 37910 533...... 37922 301...... 37910 36 CFR Proposed Rules: 534...... 37922 405...... 38502 28 CFR Proposed Rules: 536...... 37922 2...... 39272 409...... 38502 537...... 37922 524...... 39863 7...... 38954 410...... 38502 571...... 38372 545...... 39864 1195...... 38352, 38353 411...... 38502 Proposed Rules: 414...... 38502 32...... 39632 37 CFR 415...... 38502 50 CFR 424...... 38502 29 CFR 201...... 37838 17...... 39506, 39790 202...... 37838 485...... 38502 622...... 38139 1615...... 39866 203...... 37838 486...... 38502 635...... 38144 4003...... 38117 204...... 37838 44 CFR 648 ...... 37382, 38340, 39587, Proposed Rules: 205...... 37838 39624 4001...... 37390 67...... 38132 211...... 37838 679...... 38931, 39626 4022...... 37390 Proposed Rules: 47 CFR Proposed Rules: 4044...... 37390 1...... 38027 1...... 37861, 37869 17...... 38956, 39639 30 CFR 38 CFR 32...... 37882 27...... 39272 938...... 38918 Proposed Rules: 36...... 37882 216...... 39915 Proposed Rules: 21...... 37402 43...... 37861, 37869 300...... 39915 250...... 39376 54...... 37882 404...... 38375 285...... 39376 39 CFR 64...... 38928 622...... 38387 290...... 39376 Proposed Rules: 73 ...... 38138, 38139, 38331, 648...... 39643 948...... 38941 111...... 39272, 39273 39269, 39623 660...... 39625, 39930

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REMINDERS Regulatory Flexibility Act Standard; comments due comments due by 7-15-08; The items in this list were Assessment; Locatable by 7-14-08; published 6- published 5-16-08 [FR E8- editorially compiled as an aid Minerals Operations; 13-08 [FR E8-13340] 11043] to Federal Register users. comments due by 7-17- Environmental Statements; FEDERAL RESERVE Inclusion or exclusion from 08; published 6-17-08 [FR Notice of Intent: SYSTEM E8-13446] this list has no legal Coastal Nonpoint Pollution Truth in Lending; comments significance. CIVIL RIGHTS COMMISSION Control Programs; States due by 7-18-08; published Supplemental Standards of and Territories— 5-19-08 [FR E8-10242] RULES GOING INTO Ethical Conduct for Florida and South Truth in Savings; comments Employees of the United EFFECT JULY 11, 2008 Carolina; Open for due by 7-18-08; published States Commission on Civil comments until further 5-19-08 [FR E8-10243] Rights; comments due by 7- ENVIRONMENTAL notice; published 2-11- FEDERAL TRADE 14-08; published 6-13-08 PROTECTION AGENCY 08 [FR 08-00596] COMMISSION [FR E8-13170] National Perchloroethylene Air Intent to delete the Fourth Privacy Act; Systems of COMMERCE DEPARTMENT Emission Standards for Dry Street Abandoned Refinery Records; comments due by Cleaning Facilities; National Oceanic and Site from the National 7-14-08; published 6-12-08 published 7-11-08 Atmospheric Administration Priorities List; comments [FR E8-13111] Fisheries in the Western due by 7-14-08; published INTERIOR DEPARTMENT GENERAL SERVICES Pacific; Precious Corals 6-13-08 [FR E8-13371] Fish and Wildlife Service ADMINISTRATION Fisheries; Black Coral Quota Naphthalene Risk 2008-2009 Refuge-Specific Civilian Agency Acquisition and Gold Coral Moratorium; Assessments; Availability, Hunting and Sport Fishing Council and the Defense comments due by 7-14-08; and Risk Reduction Options; Regulations; published 6-11- Acquisition Regulations published 5-30-08 [FR E8- comments due by 7-14-08; 08 Council; comments due by 12127] published 5-14-08 [FR E8- SECURITIES AND 7-18-08; published 6-18-08 10830] EXCHANGE COMMISSION DEFENSE DEPARTMENT [FR E8-13724] National Oil and Hazardous Commission Guidance and Defense Acquisition Federal Acquisition Regulation: Amendment to the Rules Regulations System Substances Pollution Contractor Compliance Relating to Organization and Contingency Plan: Defense Federal Acquisition Program and Integrity Program Management, etc.; National Priorities List; Regulation Supplement: Reporting; comments due published 7-11-08 comments due by 7-14- Excessive Pass-Through by 7-15-08; published 5- 08; published 6-13-08 [FR Charges; comments due 16-08 [FR E8-11137] RULES GOING INTO by 7-14-08; published 5- E8-13366] HEALTH AND HUMAN 13-08 [FR E8-10666] National Priorities List; EFFECT JULY 12, 2008 SERVICES DEPARTMENT DEFENSE DEPARTMENT comments due by 7-14- Centers for Medicare & HOMELAND SECURITY Federal Acquisition Regulation: 08; published 6-13-08 [FR DEPARTMENT E8-13369] Medicaid Services Contractor Compliance Medicare Program: Coast Guard Program and Integrity National Priorities List Special Local Regulations for Reporting; comments due Update; comments due by Revisions to the Medicare Marine Events; Port Huron by 7-15-08; published 5- 7-14-08; published 6-13- Advantage and to Mackinac Island Race; 16-08 [FR E8-11137] 08 [FR E8-13338] Prescription Drug Benefit published 7-9-08 Pesticide Tolerances: Program; comments due Federal Acquisition Regulation; by 7-15-08; published 5- FAR Case 2007018, Cyproconazole; comments 16-08 [FR 08-01244] COMMENTS DUE NEXT Organizational Conflicts of due by 7-14-08; published WEEK Interest; comments due by 5-14-08 [FR E8-10829] HEALTH AND HUMAN SERVICES DEPARTMENT 7-18-08; published 6-18-08 Protection of Stratospheric AGRICULTURE [FR E8-13724] Ozone: Food and Drug DEPARTMENT Administration Privacy Act; Systems of Revision of Refrigerant Animal and Plant Health Records; comments due by Recovery Only Equipment Defining Small Number of Inspection Service 7-18-08; published 5-19-08 Standards; comments due Animals for Minor Use Importation of Baby Squash [FR E8-11140] by 7-18-08; published 6- Designation; comments due and Baby Courgettes from Transporter Proof of Delivery; 18-08 [FR E8-13754] by 7-16-08; published 3-18- Zambia; comments due by comments due by 7-18-08; 08 [FR E8-05385] 7-15-08; published 5-16-08 Protection of Stratospheric published 5-19-08 [FR E8- Ozone; Revision of HOMELAND SECURITY [FR E8-10920] 11124] DEPARTMENT Importation of Horses, Refrigerant Recovery Only ENERGY DEPARTMENT Coast Guard Ruminants, Swine, and Equipment Standards; Dogs: Assistance Regulations; comments due by 7-18-08; Anchorage Regulations; Port published 6-18-08 [FR E8- Remove Panama from Lists comments due by 7-15-08; of New York; comments due 13749] of Regions Where published 5-16-08 [FR E8- by 7-14-08; published 5-14- Screwworm is Considered 11005] FEDERAL 08 [FR E8-10706] to Exist; comments due ENVIRONMENTAL COMMUNICATIONS Crewmember Identification by 7-15-08; published 5- PROTECTION AGENCY COMMISSION Documents; comments due 16-08 [FR E8-10918] Agency Information Collection Development of Nationwide by 7-14-08; published 5-14- Importation of Tomatoes from Activities; Proposals, Broadband Data to Evaluate 08 [FR E8-10707] Souss-Massa, Morocco; Submissions, and Approvals; Reasonable and Timely Escort Vessels in Certain U.S. comments due by 7-15-08; comments due by 7-14-08; Deployment of Advanced Waters; comments due by published 5-16-08 [FR E8- published 5-15-08 [FR E8- Services to All Americans, 7-14-08; published 4-15-08 10923] 10898] etc.; comments due by 7- [FR E8-07935] AGRICULTURE Approval and Promulgation of 17-08; published 7-2-08 [FR Safety Zone: DEPARTMENT Air Quality Implementation E8-14875] Patchogue Bay, Patchogue, Forest Service Plans; Pennsylvania: Promoting Diversification of NY; comments due by 7- Request for Comment; Determination of Attainment Ownership in the 14-08; published 6-12-08 Availability: of the Fine Particle Broadcasting Services; [FR E8-13143]

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Safety Zones: to the Cable Statutory Proposed Revision of Class E Festival of Sail San License; comments due by Airspace: Francisco, San Francisco, 7-17-08; published 6-2-08 Gulkana, AK; comments due LIST OF PUBLIC LAWS CA; comments due by 7- [FR E8-11855] by 7-14-08; published 5- 14-08; published 6-13-08 NATIONAL AERONAUTICS 29-08 [FR E8-11976] This is a continuing list of [FR E8-13268] AND SPACE Kake, AK; comments due public bills from the current HOMELAND SECURITY ADMINISTRATION by 7-14-08; published 5- session of Congress which DEPARTMENT Civilian Agency Acquisition 29-08 [FR E8-11973] have become Federal laws. It Council and the Defense Privacy Act of 1974: Kivalina, AK; comments due may be used in conjunction Acquisition Regulations Implementation of by 7-14-08; published 5- with ‘‘PLUS’’ (Public Laws Council; comments due by Exemptions; US-VISIT 29-08 [FR E8-11978] Update Service) on 202–741– 7-18-08; published 6-18-08 Technical Reconciliation Prospect Creek, AK; 6043. This list is also [FR E8-13724] Analysis Classification comments due by 7-14- available online at http:// Federal Acquisition Regulation: System (TRACS); comments 08; published 5-29-08 [FR www.archives.gov/federal- due by 7-16-08; published Contractor Compliance E8-11972] register/laws.html. Program and Integrity 6-16-08 [FR E8-13386] Red Dog, AK; comments Reporting; comments due due by 7-14-08; published The text of laws is not INTERIOR DEPARTMENT by 7-15-08; published 5- 5-29-08 [FR E8-11971] published in the Federal Fish and Wildlife Service 16-08 [FR E8-11137] Register but may be ordered TRANSPORTATION Draft Bexar County Karst TRANSPORTATION in ‘‘slip law’’ (individual DEPARTMENT Invertebrates Recovery Plan; DEPARTMENT pamphlet) form from the comments due by 7-15-08; Federal Aviation National Highway Traffic Superintendent of Documents, published 5-16-08 [FR E8- Administration Safety Administration U.S. Government Printing 10996] Airworthiness Directives: Proposed Decisions to Grant Office, Washington, DC 20402 Endangered and Threatened Airbus Model A300, A310, Exemptions: (phone, 202–512–1808). The Wildlife and Plants: and A300-600 Series Average Fuel Economy text will also be made 90-Day Finding on a Airplanes; comments due Standards; Passenger available on the Internet from Petition To List the Ashy by 7-17-08; published 6- Automobile Average Fuel GPO Access at http:// Storm-Petrel 17-08 [FR E8-13566] Economy Standards; www.gpoaccess.gov/plaws/ (Oceanodroma Airbus Model A330 comments due by 7-17- index.html. Some laws may homochroa); comments Airplanes; and Model 08; published 6-17-08 [FR not yet be available. due by 7-14-08; published A340 200 and -300 E8-13505] Airplanes; comments due 5-15-08 [FR E8-10790] TRANSPORTATION CORRECTION Initiation of Status Review by 7-14-08; published 6- DEPARTMENT for the Northern Mexican 17-08 [FR E8-13568] Pipeline and Hazardous In the List of Public Laws Gartersnake (Thamnophis APEX Aircraft Model CAP Materials Safety printed in the Federal Register eques megalops); 10 B Airplanes; comments Administration on July 1, 2008, H.R. 2642, comments due by 7-14- due by 7-14-08; published Hazardous Materials Public Law 110–252, was 08; published 5-28-08 [FR 6-13-08 [FR E8-13319] Transportation; Registration printed incorrectly. It should E8-11756] Boeing Model 767-200 and and Fee Assessment read as follows: -300 Series Airplanes; Program; comments due by Proposed Removal of comments due by 7-14- 7-14-08; published 5-5-08 H.R. 2642/P.L. 110–252 Erigeron Maguirei from 08; published 6-17-08 [FR the Federal List of [FR E8-09815] E8-13579] Supplemental Appropriations Endangered and DG Flugzeugbau GmbH TRANSPORTATION Act, 2008 (June 30, 2008; 122 Threatened Plants; Model DG-500MB DEPARTMENT Stat. 2323) Availability of Post- Powered Sailplanes; Surface Transportation Delisting Monitoring Plan; comments due by 7-14- Board Last List July 2, 2008 comments due by 7-15- 08; published 6-13-08 [FR Waybill Sample; comments 08; published 5-16-08 [FR E8-13324] due by 7-18-08; published E8-09282] Engine Components Inc. 6-26-08 [FR E8-13677] Endangered and Threatened Public Laws Electronic Reciprocating Engine TREASURY DEPARTMENT Wildlife and Plants; Special Notification Service Cylinder Assemblies; Internal Revenue Service Rule for the Polar Bear; comments due by 7-18- (PENS) comments due by 7-14-08; 08; published 5-19-08 [FR Determination of Minimum published 5-15-08 [FR E8- E8-11116] Required Pension Contributions; comments 11144] Lockheed Model 382, 382B, due by 7-14-08; published PENS is a free electronic mail INTERIOR DEPARTMENT 382E, 382F, and 382G 4-15-08 [FR 08-01133] notification service of newly Surface Mining Reclamation Series Airplanes; enacted public laws. To Regulations Under Section and Enforcement Office comments due by 7-14- subscribe, go to http:// 2642(g); comments due by 08; published 6-13-08 [FR listserv.gsa.gov/archives/ West Virginia Regulatory 7-16-08; published 4-17-08 E8-13322] publaws-l.html Program; comments due by [FR E8-08033] 7-16-08; published 6-16-08 Proposed Establishment of [FR E8-13456] Class E Airspace: VETERANS AFFAIRS Note: This service is strictly Eek, AK; comments due by DEPARTMENT for E-mail notification of new LIBRARY OF CONGRESS 7-14-08; published 5-29- VA Veteran-Owned Small laws. The text of laws is not Copyright Office, Library of 08 [FR E8-11968] Business Verification available through this service. Congress Venetie, AK; comments due Guidelines; comments due PENS cannot respond to Retransmission of Digital by 7-14-08; published 5- by 7-18-08; published 5-19- specific inquiries sent to this Broadcast Signals Pursuant 29-08 [FR E8-11969] 08 [FR E8-10489] address.

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