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Code · REGISTER · 2007-08-03 · Social Security Administration (SSA) · Rules and Regulations

Rules and Regulations. Notice of proposed rulemaking

26,540 words·~121 min read·/register/2007/08/03/07-3812

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-M SOCIAL SECURITY ADMINISTRATION [Docket No. SSA 2007-0040] 20 CFR Part 404 RIN 0960-AG50 Sixty-Month Period of Employment Requirement for Government Pension Offset Exemption AGENCY: Social Security Administration (SSA). ACTION: Notice of proposed rulemaking. SUMMARY: To implement section 418 of the Social Security Protection Act of 2004 (SSPA), we propose to revise our regulations to explain that a State or local government worker will be subject to the Government Pension Offset
(GPO)provision under title II of the Social Security Act (the Act), if any part of the last 60 months of government service was not covered by Social Security. We also propose to replace the words “receiving” and “received” with the word “payable” when referring to the eligibility to or payout from a government pension. This wording change will make the regulatory and statutory language consistent and help clarify when the GPO is applicable. In addition, we propose to revise our regulations to reflect a separate 60-month requirement that was made applicable to Federal employees by a 1987 law. DATES: To be sure that we consider your comments, we must receive them by October 2, 2007. ADDRESSES: You may give us your comments by: Internet through the Federal eRulemaking Portal at *http://www.regulations.gov;* e-mail to *regulations@ssa.gov;* telefax to
(410)966-2830; or letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703. You may also deliver them to the Office of Regulations, Social Security Administration, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. Comments are posted on the Federal eRulemaking Portal, or you may inspect them physically on regular business days by making arrangements with the contact person shown in this preamble. FOR FURTHER INFORMATION CONTACT: Ines Riley, Social Insurance Specialist, Office of Income Security Programs, Social Security Administration, RRCC #126, 6401 Security Boulevard, Baltimore, Maryland 21235-6401,
(410)965-4138. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at *http://www.socialsecurity.gov* . SUPPLEMENTARY INFORMATION: Electronic Version The electronic file of this document is available on the date of publication in the **Federal Register** at *http://www.gpoaccess.gov/fr/index.html* . Background If you receive a pension from a Federal, State or local government that is based on work that was not covered by Social Security, then the GPO may reduce certain kinds of Social Security benefits that you might also be eligible to receive. The GPO applies to Social Security wife's, husband's, widow's, widower's, mother's or father's, and divorced or surviving divorced spouse's benefits. For the sake of simplicity, these benefits are often referred to as spouse's benefits, even though other benefits, as described in the previous sentence, are affected. These benefits may be reduced, to zero if necessary, by two-thirds of the amount of your government pension from noncovered work. See section 202(k)(5) of the Act, codified at 42 U.S.C. 402(k)(5). The GPO does not apply to Social Security retirement or disability benefits that you earned through your own covered employment. The GPO was enacted in 1977 to reduce the Social Security spouse's benefit of workers who have a government pension based on noncovered employment. Congress believed that persons who received a government pension based on their own noncovered work would receive a “windfall” if they also could receive unreduced Social Security spouse's benefits, regardless of their dependency on the insured spouse. (See S. Rep. No. 95-572, 95th Cong., 1st Sess., at 28.) The GPO treats these government workers similar to workers in jobs covered by Social Security. Workers who earn their own Social Security retirement benefit, and who are eligible to receive a spouse's benefit, have the spouse's benefit, in effect, offset by their retirement benefit. They receive the larger of the two benefits. They do not receive both their own Social Security retirement benefit and a spouse's benefit. Therefore, the GPO prevents individuals who receive a government pension based on noncovered earnings from receiving more in combined pension and Social Security spouse's benefits than individuals who worked in covered employment and also were eligible for spouse's benefits. The GPO adjusts the spouse's benefit of a government worker to prevent a “windfall.” (See H. Rep. No. 100-391(I), 100th Cong., 2nd Sess., at 2313-466.) Before enactment of the SSPA, Public Law 108-203, on March 2, 2004, the law allowed an exception to the application of the GPO, referred to as the “last day” exception. Under this exception, State or local government workers could avoid application of the GPO by working 1 day in Social Security covered employment at the end of their career. Section 418 of the SSPA phases out the “last day” exception. Applications for spouse's benefits filed on or after April 1, 2004 will be subject to the GPO unless the individual's last 60 months of government employment are covered by Social Security. Therefore, if there is any noncovered government employment during the last 60 months of government service on which a pension is based, the GPO will apply. State or local government workers who filed an application for spouse's benefits before April 1, 2004, or whose last day of government employment was before July 1, 2004, are exempt from the GPO if they worked in covered employment on the last day of the government service on which their pension is based. The last 60-month requirement established by section 418 of the SSPA is similar to a requirement established by the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), Public Law 100-203, section 9007. That law specified that Federal employees who transfer from the Civil Service Retirement System to the new Federal Employees Retirement System must work for at least 60 months in the aggregate in covered employment in order to avoid application of the GPO. For workers whose last day of State or local government employment occurs within 5 years after the date of enactment (that is, between March 2, 2004 and March 1, 2009), the 60-month requirement will be reduced (but not to less than 1 month) by the total number of months that the worker served in covered employment on or before March 2, 2004. The remaining month(s) of service needed to fulfill this 60-month requirement must be performed after March 2, 2004. Therefore, even if a worker had 60 or more months of covered government service on or before March 2, 2004, that worker would still have to work his or her last month of covered government service after March 2, 2004. Explanation of Proposed Changes We propose to revise the regulations in 20 CFR 404.408a as described below to reflect the changes enacted under section 418 of the SSPA and section 9007 of OBRA 1987. *Section 404.408a(a) When reduction is required.* This paragraph describes the conditions under which we will apply the GPO. This paragraph also explains how we will determine what the monthly pension amount is if the pension is not paid monthly or is paid in a lump sum. We propose to revise this paragraph to explain that we will apply the GPO: 1. To the monthly Social Security wife's, husband's, widow's, widower's, mother's or father's, or divorced or surviving divorced spouse's benefit for each month a monthly pension from the Federal government based on noncovered employment is payable, unless the individual meets one of the exceptions in paragraph
(b)of this section; 2. To the monthly Social Security wife's, husband's, widow's, widower's, mother's or father's, or divorced or surviving divorced spouse's benefit if the State or local government employee's application for benefits was filed before April 1, 2004, or his or her last day of employment was worked before July 1, 2004, and the last day was not covered by Social Security; and 3. To the monthly Social Security wife's, husband's, widow's, widower's, mother's or father's, or divorced or surviving divorced spouse's benefit if the State or local government employee's application for benefits was filed on or after April 1, 2004 and any portion of the last 60 months of government service was not covered by Social Security. However, if the individual files an application for benefits on or after April 1, 2004 and the individual's last day of service occurs after June 30, 2004 and before March 2, 2009, we propose to reduce the 60-month requirement (but not to less than 1 month) by the total number of months of Social Security covered employment under the State or local retirement system worked on or before March 2, 2004. We also propose to revise this paragraph to explain that, for the purposes of this transitional rule, we will count as a month of employment any month in which the individual worked in covered government employment for at least one day. We also propose to revise this paragraph to explain that if an individual's Social Security benefit is reduced because of GPO and he or she later returns to work for a government agency, his or her Social Security benefit will continue to be reduced unless he or she works at least 60 months in covered employment for the same employer or in the same pension plan. We are proposing this revision to clarify that a person who worked for one government agency could not return to work for another agency and earn an exemption from the GPO unless the work was covered by the same pension plan. We also propose to revise this paragraph to better explain how we treat government pensions that are not paid monthly or in a lump sum and how this information is obtained. *Section 404.408a(b) Exceptions.* This paragraph describes the conditions under which the GPO does not apply. We propose to revise this paragraph to include an exception for 60 months or more of Federal government employment covered under Social Security as provided by section 9007 of OBRA 1987. This new exception would follow the existing five exceptions and be designated as paragraph (b)(6). *Section 404.408a(d) Amount and priority of reduction.* This paragraph describes the amount of the GPO reduction and the order in which the GPO reduction will be made in relation to reductions for age and simultaneous entitlement to other Social Security benefits. We propose to add an explanation that if a person's pension is based on both government employment and private sector employment, the GPO will apply to the part of the pension based on noncovered governmental work. It will not apply to the part of the pension that is attributable to earnings from a nongovernmental entity. Because the GPO was designed to offset the Social Security spouse's benefit by the amount of the pension that was based on noncovered government employment, the offset should apply only to the governmental part of the pension. Some individuals work for school systems that have a public pension plan that also credits work for private schools. Thus, a teacher may work for 25 years in a public school and 5 years in a private school and both jobs participate in the same pension plan. However, because the GPO applies only to public employment, the portion of the pension attributable to work in the private sector is not subject to the GPO. In addition, the “last day” GPO exception, as well as the new 60-month exception, applies only to public employment. Therefore, a teacher whose last day of employment, or last 60 months, is with a private school is not exempt from GPO for that part of his or her pension that is based on noncovered government service. Clarity of These Rules Executive Order 12866, as amended, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make them easier to understand. For example: • Have we organized the material to suit your needs? • Are the requirements in the rules clearly stated? • Do the rules contain technical language or jargon that isn't clear? • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand? • Would more (but shorter) sections be better? • Could we improve clarity by adding tables, lists, or diagrams? • What else could we do to make the rules easier to understand? Regulatory Procedures Executive Order 12866, as Amended We have consulted with the Office of Management and Budget
(OMB)and determined that these proposed rules meet the requirements for a significant regulatory action under Executive Order 12866, as amended. Thus, they were subject to OMB review. Administrative costs attributable to the publication of this regulation are estimated to be negligible (i.e., less than 25 work years and $2 million). At the time of enactment of the SSPA, we estimated that this change would result in a reduction in the Old-Age, Survivors and Disability Insurance (OASDI) benefits of $5 million over the first 5 years, and $39 million over the first 10 years. We estimate that the effect of this change will be small initially, but will grow during the projection period such that in the 10th year there will be about 1,500 beneficiaries with GPO offset because of this change, with a decrease in benefits during that year of about $10 million. The year-by-year estimates of these benefit payment reductions are presented in the table below. Fiscal year Reduction in OASDI benefits (in millions) 2004 ( 1 /) 2005 ( 1 /) 2006 $1 2007 1 2008 2 2009 4 2010 5 2011 7 2012 8 2013 10 Totals: 2004-08 5 2004-13 39 1 / Reduction in benefit payments of less than $500,000. Regulatory Flexibility Act We certify that these proposed rules, when published in final, would not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act These proposed regulations would impose no reporting or recordkeeping requirements subject to OMB clearance. (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance.) List of Subjects in 20 CFR Part 404 Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance; Reporting and recordkeeping requirements, Social Security. Dated: May 30, 2007. Michael J. Astrue, Commissioner of Social Security. For the reasons set out in the preamble, we propose to amend subpart E of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below: PART 404— FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- ) Subpart E—[Amended] 1. The authority citation for subpart E of part 404 continues to read as follows: Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 216(l), 222(c), 223(e), 224, 225, 702(a)(5), and 1129A of the Social Security Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 416(l), 422(c), 423(e), 424a, 425, 902(a)(5), and 1320a-8a and 48 U.S.C. 1801. 2. Amend § 404.408a by revising paragraph (a), adding paragraph (b)(6) and revising paragraph (d)(1) to read as follows: § 404.408a Reduction where spouse is receiving a Government pension.
(a)*When reduction is required.* For the purposes of this section, we use the term “Government pension” to mean a monthly pension from a Federal, State, or local government agency for which you were employed in work not covered by Social Security.
(1)Unless you meet one of the exceptions in paragraph
(b)of this section, your monthly Social Security benefits as a wife, husband, widow, widower, mother or father, divorced or surviving divorced spouse will be reduced each month that a periodic benefit is payable to you from the Federal government for work you performed that was not covered by Social Security.
(2)If you filed an application for Social Security benefits as a wife, husband, widow, widower, mother or father, divorced or surviving divorced spouse before April 1, 2004, or your work with a State or local government ended before July 1, 2004, your benefits will be reduced each month a periodic benefit from a State or local government pension plan is payable to you, if the pension is based on work that was not covered by Social Security on the last day of employment unless you meet one of the exceptions in paragraph
(b)of this section. (3)(i) If you file an application for Social Security benefits as a wife, husband, widow, widower, mother or father, divorced or surviving divorced spouse on or after April 1, 2004, and your work with a State or local government ended July 1, 2004 or later, your benefits will be reduced each month that a periodic benefit is payable to you from a State or local government pension plan for which you were employed in work not covered by Social Security during any portion of your last 60 months of such service that ends with your last day of employment, unless you meet one of the exceptions in paragraph
(b)of this section.
(ii)If the last day of your State or local government service occurs after June 30, 2004 and before March 2, 2009, we may reduce the requirement that you must work your last 60 months in covered employment. You still must work 60 months altogether in covered employment. We will reduce the last 60-month requirement (but not to less than 1 month) by the total number of months you performed in Social Security covered employment, under the same State or local retirement system, on or before March 2, 2004. The months do not have to be consecutive. You must work the remaining number of months needed to total 60 months of covered government employment after March 2, 2004. Therefore, even if you have 60 or more months of covered government employment on or before March 2, 2004, you must work your last month of covered government employment after March 2, 2004. We consider employment of at least 1 day in a given month to be a month of employment.
(4)If you receive a Government pension based on noncovered employment and later return to work for a government agency, your monthly Social Security benefit as a wife, husband, widow, widower, mother or father, divorced or surviving divorced spouse will always be reduced because of your Government pension, unless the later work is covered by Social Security and you work at least 60 months in covered employment for the same employer or in the same pension plan. For purposes of this section, Federal Government employees performing work that is covered by Medicare, but not otherwise covered by Social Security, are not considered to be performing work covered by Social Security. (5)(i) If the Government pension is not paid monthly or is paid in a lump-sum, we will allocate it on a basis equivalent to a monthly benefit and then reduce the monthly Social Security benefit accordingly.
(ii)We will generally obtain information about the number of years covered by a lump-sum payment from the pension plan.
(iii)If one of the alternatives to a lump-sum payment is a life annuity, and the amount of the monthly or other periodic payment can be determined, we will base the reduction on that amount.
(iv)Where the period or the equivalent monthly pension benefit is not clear, it may be necessary for us to determine the reduction period on an individual basis.
(b)* * *
(6)If you receive a pension for Federal Government employment and that employment was covered under Social Security for 60 months or more in the aggregate during the period beginning January 1, 1988 and ending with the first month of entitlement to Social Security benefits as a wife, husband, widow, widower, mother or father, divorced or surviving divorced spouse.
(d)* * * (1)(i) If you became eligible for a Government pension based on noncovered service after June 1983, we will reduce (to zero, if necessary) your monthly Social Security benefits as a wife, husband, widow, widower, mother or father, divorced or surviving divorced spouse by two-thirds the amount of your monthly pension.
(ii)If your Government pension is based in part on earnings from a nongovernmental entity, we will base the amount of the reduction on only the portion of the pension that is based on noncovered government service. We will not consider that portion of the pension that is attributable to the nongovernmental earnings in determining the amount of the reduction.
(iii)If the reduction is not a multiple of 10 cents, we will round it to the next higher multiple of 10 cents. [FR Doc. E7-15057 Filed 8-2-07; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 549 [BOP Docket No. 1145] RIN 1120-AB45 Civil Commitment of a Sexually Dangerous Person AGENCY: Bureau of Prisons, Justice. ACTION: Proposed rule. SUMMARY: In this proposed rule, the Bureau of Prisons (Bureau) provides definitions and standards relating to the certification of persons as sexually dangerous for the purpose of civil commitment, as authorized by The Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248) (Walsh Act), enacted July 27, 2006, which amended title 18 of the United States Code, Chapter 313. DATES: Comments are due by October 2, 2007. ADDRESSES: Submit comments to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. You may view an electronic version of this rule at *http://www.regulations.gov* . You may also comment via the Internet to the Bureau at *BOPRULES@BOP.GOV* or by using the *http://www.regulations.gov* comment form for this regulation. When submitting comments electronically you must include the BOP Docket No. in the subject box. FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone
(202)307-2105. SUPPLEMENTARY INFORMATION: Posting of Public Comments Please note that all comments received are considered part of the public record and made available for public inspection online at *http://www.regulations.gov* . Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on *http://www.regulations.gov* . Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION paragraph. This proposed rule provides definitions and standards for review by the Bureau of persons in its custody for certification to federal district courts as “sexually dangerous persons,” as authorized by title 18 U.S.C. Chapter 313. The Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248) (Walsh Act), enacted July 27, 2006, amended title 18 of the United States Code, Chapter 313, to add a new section 4248. Section 4248 authorizes the Bureau to certify to federal district courts that certain persons are “sexually dangerous persons” for whom civil commitment is required. Certification stays the release of the person and initiates district court proceedings pursuant to 18 U.S.C. 4248(a), (b), (c), and (d). The filing of the certificate by the Bureau stays the release of the person; however, the final determination that a person is “a sexually dangerous person” subject to civil commitment is made by the court after proceedings held pursuant to 18 U.S.C. 4248(b) and (c), which make applicable the procedures set forth in 18 U.S.C. 4247(b), (c), and (d). As provided in § 4248(b), the court may order that a psychiatric or psychological examination of the person be conducted, and that a psychiatric or psychological report be filed with the court. Pursuant to § 4248(c), a hearing shall be conducted in which the person shall be represented by counsel, and be afforded an opportunity to testify, present evidence, subpoena witnesses on his or her behalf, and confront and cross-examine witnesses who appear at the hearing. If the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit him/her to the custody of the Attorney General as detailed in § 4248(d). The Walsh Act also amended 18 U.S.C. 4247 to include a definition of “sexually dangerous person.” The amended statute defines “sexually dangerous person” as “a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” The amended statute defines “sexually dangerous to others” to mean that a person “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” The statute does not define the terms “sexually violent conduct” or “child molestation” and the Bureau proposes these regulations to interpret them. Although the Bureau has, in part, looked to federal criminal statutes for language to assist in defining these terms, we do not rely upon the provisions themselves, case law interpretations of them, or other related statutory history. Rather, the Bureau's primary intent is to create definitions of terms that are comprehensive, easily understood, familiar to the general public, and readily applicable by Bureau staff. In addition to providing definitions for “sexually violent conduct” and “child molestation,” these regulations clarify the process by which the Bureau will determine whether a person in its custody has engaged or attempted to engage in sexually violent conduct or child molestation, and how the Bureau will assess whether such a person would be sexually dangerous to others if released. Section 549.70 Purpose and Application This section explains that the subpart provides definitions and standards for Bureau review of persons for certification to federal district courts as “sexually dangerous persons,” as authorized by title 18 U.S.C. Chapter 313. The section further provides that the subpart applies to persons in Bureau custody, including those:
(1)Under a term of imprisonment;
(2)for whom all criminal charges have been dismissed solely for reasons relating to the person's mental condition; or
(3)in Bureau custody pursuant to 18 U.S.C. 4241(d). The Bureau accordingly may consider whether any person in its custody should be certified as a sexually dangerous person. Persons the Bureau will review for this purpose include those under a term of imprisonment. Because these persons have been serving sentences in Bureau custody, staff will have documentation including, but not limited to, records and information generated in criminal or civil proceedings, information provided by the United States Attorneys' offices or other federal or non-federal authorities, any statements or admissions by the person, and any available medical records. Additionally, the Bureau will have had the opportunity to provide mental health assessments, care, and treatment as indicated. The Bureau will also review for certification persons in our custody for whom all criminal charges have been dismissed solely for reasons relating to the person's mental condition, or pursuant to 18 U.S.C. 4241(d). For these persons, Bureau staff will have had the opportunity to provide forensic mental health studies, hospitalization, and care and treatment pursuant to other provisions in 18 U.S.C. Chapter 313. Additionally, Bureau staff will have had the opportunity to work closely with the U.S. Attorneys' offices who can provide evidence of conduct necessary for certification. The final paragraph of this section states that the Bureau may certify that a person is a sexually dangerous person when review under this subpart establishes reasonable cause to believe that the person is a sexually dangerous person. This specifies the degree of informational or evidentiary support required for the Bureau to conclude that a person is a sexually dangerous person, and hence that civil commitment proceedings should be initiated under 18 U.S.C. 4248. The required support for such a certification by the Bureau is information sufficient to provide reasonable cause to believe that the person satisfies the relevant statutory criteria as set forth in 18 U.S.C. 4247(a)(5)-(6). The Bureau will consider any available information in its possession in determining whether there is a sufficient basis for a sexually dangerous person certification, and may transfer the person to a suitable facility for psychological examination in order to obtain information for this purpose. Section 549.71 Definition of “Sexually Dangerous Person” The Bureau defines this term as a person who has engaged or attempted to engage in sexually violent conduct or child molestation and has been assessed as sexually dangerous to others by a Bureau, or Bureau-contracted, mental health professional. This definition derives from 18 U.S.C. 4247(a)(5), as amended by the Walsh Act, which states that the term “ ‘sexually dangerous person' means a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” Thus, the Bureau's regulations contemplate a two-step analysis to determine whether a person is sexually dangerous. The first step involves a review of the person's prior and current conduct to determine whether there is evidence of sexually violent conduct or child molestation. Relevant conduct may be any conduct of the person for which evidence or information is available, and is not limited to offenses for which he/she has been convicted or is presently incarcerated, or for which he/she presently faces charges. The Bureau will derive information regarding the person's conduct from his/her Pre-Sentence Investigative Report, Statement of Reasons, Criminal Judgment, and any other available source, as indicated in § 549.70(c). This may include (but is not limited to) records and information generated in criminal or civil proceedings, information provided by the United States Attorneys' offices or other federal or non-federal authorities, any statements or admissions by the person, and any available medical records. The second step of consideration involves an assessment by Bureau, or Bureau-contracted, mental health professionals whether the person will be sexually dangerous to others. This involves a psychiatric or psychological analysis of the person to assess whether he/she suffers from a serious mental illness, abnormality, or disorder as a result of which he/she would have serious difficulty in refraining from sexually violent conduct or child molestation if released. In this assessment as well, the Bureau will consider any available information in its possession, as indicated in §§ 549.75 and 549.70(c). Documents to be reviewed may include (but are not limited to) records and information generated in criminal or civil proceedings, information provided by the United States Attorneys' offices or other federal or non-federal authorities, any statements or admissions by the person, and any available medical records. Whereas the first step of analysis is a review of the person's conduct, the second step is an assessment of whether a mental condition exists, and if so, how it will affect the person's ability to refrain from sexually violent conduct or child molestation if released. If the criteria for both steps are met, the person qualifies for certification as a sexually dangerous person under the provisions of § 4248(a). Section 549.72 Definition of “Sexually Violent Conduct” The Bureau defines this term as any unlawful conduct of a sexual nature with another person (“the victim”) that involved the following (for each provision, we note the statutory derivation): • The use or threatened use of force against the victim; • Threatening or placing the victim in fear that the victim, or any other person, will be harmed. This, and the previous bulleted item's, language derive from 18 U.S.C. 2241(a) and 2242(1); • Rendering the victim unconscious and thereby engaging in conduct of a sexual nature with the victim. This language derives from 18 U.S.C. 2241(b)(1); • Administering to the victim, by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance, and thereby substantially impairing the ability of the victim to appraise or control conduct. This language derives from 18 U.S.C. 2241(b)(2)(A); or • Engaging in such conduct with a victim who is incapable of appraising the nature of the conduct, or physically or mentally incapable of declining participation in, or communicating unwillingness to engage in, that conduct. This language derives from 18 U.S.C. 2242(2). Sexually violent conduct also includes engaging in any conduct of a sexual nature with another person with knowledge of having tested positive for the human immunodeficiency virus (HIV), or other potentially life-threatening sexually-transmissible disease, without the informed consent of the other person to be potentially exposed to that sexually transmissible disease. This language acknowledges the growing concerns surrounding potential transmission of sexual diseases that have the potential to cause significant harm to the victim's health or even endanger life. Several states have enacted laws which criminalize such conduct, including Arkansas, California, Florida, Georgia, Idaho, Illinois, Iowa, Louisiana, Michigan, Missouri, Nevada, New Jersey, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, and Washington. The Bureau, therefore, treats exposing another to a potentially life-threatening sexually transmissible disease without his or her informed consent as sexually dangerous. Such conduct is similar in nature to the conduct of a poisoner, who uses no overt force or threat against the victim, but is properly regarded as a violent offender, in that he surreptitiously introduces an injurious substance into another 's body. The regulation does not require that the person be convicted of or presently charged with the conduct in question. As provided in § 549.70(c), all available evidence and information in Bureau possession may be used in determining whether the person has engaged in such conduct. For example, if a person is serving a term of imprisonment for an offense under chapter 109A, 110, or 117 or § 1591 of title 18 of the United States Code, it may be clear from the definition of the offense of conviction that he/she engaged or attempted to engage in sexually violent conduct or child molestation. But even if the offense for which the person is incarcerated is not facially sexual in nature, the available evidence or information, such as records and information generated in criminal or civil proceedings, information provided by the United States Attorneys' offices or other federal or non-federal authorities, any statements or admissions by the person, and any available medical records, may show that he/she in fact engaged in such conduct. Moreover, even if no actual or attempted sexually violent conduct or child molestation was involved in the offense for which the person is presently incarcerated, there may be evidence or information indicating that he/she engaged in such conduct in the past, such as records or information generated in state criminal proceedings or civil commitment proceedings, information provided by the United States Attorneys' offices or other federal or non-federal authorities, any statements or admissions by the person, and any available medical records. Likewise, for a person in the custody of the Bureau for reasons other than serving a term of imprisonment, for whom charges were dismissed based on his/her mental condition, or committed under 18 U.S.C. 4241(d) for incompetency to stand trial or undergo post-release proceedings, information may be available from the U.S. Attorney's office concerning pending or dismissed charges, which shows that the person engaged or attempted to engage in sexually violent conduct or child molestation, or information may be available that he/she engaged or attempted to engage in such conduct at some time in the past. Regardless of the source, any evidence of sexually violent conduct or child molestation in which the person engaged or attempted to engage may be considered—whether or not a conviction resulted, and whether or not the person's present custody is based on the conduct in question—and all available evidence and information may be taken into account in determining whether the person engaged or attempted to engage in such conduct. In addition to being part of what must be found to have occurred in the past—that the person engaged or attempted to engage in “sexually violent conduct” or “child molestation”—these terms figure into the required assessment that the person is sexually dangerous to others, since that is defined to mean that the person suffers from a serious mental illness, abnormality, or disorder as a result of which he or she would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. 4247(a)(6). The same definitions of “sexually violent conduct” and “child molestation” apply in the assessment of the person's ability to refrain from such conduct if released. Section 549.73 Definition of “Child Molestation” The Bureau defines this term as any unlawful conduct of a sexual nature with, or sexual exploitation of, a person under the age of 18 years. As with “sexually violent conduct,” a determination that a person has engaged or attempted to engage in “child molestation” does not require that the person be convicted of or presently charged with the conduct in question, and all available evidence and information may be used in determining whether the person has engaged or attempted to engage in such conduct. The discussion above of § 549.72 provides more detailed discussion of these matters, and applies as well in relation to “child molestation.” Section 549.74 Definition of “Sexually Dangerous to Others” The Bureau defines this term to mean that a person suffers from a serious mental illness, abnormality, or disorder as a result of which he or she would have serious difficulty in refraining from sexually violent conduct or child molestation if released. This language derives from 18 U.S.C. 4247(a)(6). As provided in § 549.70(c), the Bureau, or Bureau-contracted mental health professionals, may use all available information about conduct and mental condition to determine a person's sexual dangerousness to others. For example, it is not necessary that the person have been charged with or convicted of any criminal act related to the conduct being considered—a limitation that could prevent a mental health professional from considering probative and relevant evidence such as long-established patterns of behavior, admissions of criminal activity previously undetected by authorities, and statements of intent to commit future sexually violent crimes or acts of child molestation. By considering all conduct and other relevant information, a mental health professional can conduct a full assessment of a person's difficulty in refraining from committing a future sexually violent crime or child molestation. Section 549.75 Determining “Serious Difficulty in Refraining From Sexually Violent Conduct or Child Molestation if Released” This section explains that, when assessing a person's “serious difficulty in refraining from sexually violent conduct or child molestation if released,” Bureau, or Bureau-contracted, mental health professionals may consider, but are not limited to, any evidence: • Of the person's repeated contact, or attempted contact, with one or more victims; • Of the person's denial of or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging in sexually violent conduct or child molestation; • Established through interviewing and testing of the person, or other risk assessment tools, that are relied upon by mental health professionals; • Established by forensic indicators of inability to control conduct, such as:
(1)Offending while under supervision,
(2)Engaging in offense(s) when likely to get caught,
(3)Statement(s) of intent to re-offend, or
(4)Admission of inability or difficulty to control behavior; or • Indicating successful completion of, or failure to successfully complete, a sex offender treatment program. These criteria are not meant to be an exhaustive list, but rather are illustrative of practical, probative, and relevant evidence used by mental health professionals when assessing patient risk. Executive Order 12866 This rule falls within a category of actions that the Office of Management and Budget
(OMB)has determined to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was reviewed by OMB. The Bureau has assessed the costs and benefits of this rule as required by Executive Order 12866 Section 1(b)(6) and has made a reasoned determination that the benefits of this rule justify its costs. This rule will have the benefit of avoiding confusion caused by the statutory change, while allowing the Bureau to operate under the definitions stated in the regulations. There will be no new costs associated with this rulemaking. Executive Order 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Regulatory Flexibility Act The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 28 CFR Part 549 Prisoners. Dated: July 24, 2007. Harley G. Lappin, Director, Bureau of Prisons. Under rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we propose to amend 28 CFR part 549 as set forth below. Subchapter C—Institutional Management PART 549—MEDICAL SERVICES 1. Revise the authority citation for 28 CFR part 549 to read as follows: Authority: 5 U.S.C. 301; 10 U.S.C. 876b; 18 U.S.C. 3621, 3622, 3524, 4001, 4005, 4042, 4045, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4241-4248, 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510. 2. Add a new subpart F, to read as follows: Subpart F—Civil Commitment of a Sexually Dangerous Person Sec. 549.70 Purpose and application. 549.71 Definition of “sexually dangerous person.” 549.72 Definition of “sexually violent conduct.” 549.73 Definition of “child molestation.” 549.74 Definition of “sexually dangerous to others.” 549.75 Determining “serious difficulty in refraining from sexually violent conduct or child molestation if released.” Subpart F—Civil Commitment of a Sexually Dangerous Person § 549.70 Purpose and application.
(a)This subpart provides definitions and standards for review of persons for certification to federal district courts as sexually dangerous persons, as authorized by title 18 U.S.C. Chapter 313, by Bureau of Prisons (Bureau), or Bureau-contracted, staff.
(b)This subpart applies to persons in Bureau custody, including those:
(1)Under a term of imprisonment;
(2)For whom all criminal charges have been dismissed solely for reasons relating to the person's mental condition; or
(3)In Bureau custody pursuant to 18 U.S.C. 4241(d).
(c)The Bureau may certify that a person in Bureau custody is a sexually dangerous person when review under this subpart provides reasonable cause to believe that the person is a sexually dangerous person. In determining whether a person is a sexually dangerous person and should be so certified, the Bureau, or Bureau-contracted staff, will consider any available information in its possession, and may transfer the person to a suitable facility for psychological examination in order to obtain information for this purpose. § 549.71 Definition of “sexually dangerous person.” For purposes of this subpart, a “sexually dangerous person” is a person:
(a)Who has engaged or attempted to engage in:
(1)Sexually violent conduct; or
(2)Child molestation; and
(b)Has been assessed as sexually dangerous to others by a Bureau, or Bureau-contracted, mental health professional. § 549.72 Definition of “sexually violent conduct.” For purposes of this subpart, “sexually violent conduct” includes:
(a)Any unlawful conduct of a sexual nature with another person (“the victim”) that involves:
(1)The use or threatened use of force against the victim;
(2)Threatening or placing the victim in fear that the victim, or any other person, will be harmed;
(3)Rendering the victim unconscious and thereby engaging in conduct of a sexual nature with the victim;
(4)Administering to the victim, by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance, and thereby substantially impairing the ability of the victim to appraise or control conduct;
(5)Engaging in such conduct with a victim who is incapable of appraising the nature of the conduct, or physically or mentally incapable of declining participation in, or communicating unwillingness to engage in, that conduct; or
(b)Engaging in any conduct of a sexual nature with another person with knowledge of having tested positive for the human immunodeficiency virus (HIV), or other potentially life-threatening sexually-transmissible disease, without the informed consent of the other person to be potentially exposed to that sexually transmissible disease. § 549.73 Definition of “child molestation.” For purposes of this subpart, “child molestation” includes any unlawful conduct of a sexual nature with, or sexual exploitation of, a person under the age of 18 years. § 549.74 Definition of “sexually dangerous to others.” For purposes of this subpart, “sexually dangerous to others” means that a person suffers from a serious mental illness, abnormality, or disorder as a result of which he or she would have serious difficulty in refraining from sexually violent conduct or child molestation if released. § 549.75 Determining “serious difficulty in refraining from sexually violent conduct or child molestation if released.” In determining whether a person will have “serious difficulty in refraining from sexually violent conduct or child molestation if released,” Bureau, or Bureau-contracted, mental health professionals may consider, but are not limited to, evidence:
(a)Of the person's repeated contact, or attempted contact, with one or more victims;
(b)Of the person's denial of or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging or attempting to engage in sexually violent conduct or child molestation;
(c)Established through interviewing and testing of the person, or other risk assessment tools, that are relied upon by mental health professionals;
(d)Established by forensic indicators of inability to control conduct, such as:
(1)Offending while under supervision;
(2)Engaging in offense(s) when likely to get caught;
(3)Statement(s) of intent to re-offend; or
(4)Admission of inability to control behavior; or
(e)Indicating successful completion of, or failure to successfully complete, a sex offender treatment program. [FR Doc. E7-14943 Filed 8-2-07; 8:45 am] BILLING CODE 4410-05-P FEDERAL MEDIATION AND CONCILIATION SERVICE 29 CFR Part 1401 RIN 3076-AA06 Freedom of Information Act Regulations AGENCY: Federal Mediation and Conciliation Service. ACTION: Notice of proposed rulemaking. SUMMARY: The Federal Mediation and Conciliation Service
(FMCS)proposes to amend its rules under the Freedom of Information Act
(FOIA)primarily to effectuate various provisions under the 1996 Electronic FOIA Amendments. Previously, FMCS had issued a proposed rule on November 3, 1999. 64 FR 59697, Nov. 3, 1999. FMCS received no comments when the proposed rule was published in 1999. FMCS is now withdrawing that proposed rule and issuing a new revised proposed rule. The proposed revisions include a new response time for FOIA requests, procedures for requesting expedited processing, the availability of certain public information on FMCS's Web site, and express inclusion of electronic records and automated searches along with paper records and manual searches. In addition, FMCS's proposed amendments would update its fee schedule. FMCS is also updating the names and addresses of the various offices within the agency responsible for FOIA related activities. DATES: Written comments must be submitted to the office listed in the addresses section below on or before October 2, 2007. ADDRESSES: Send comments to Michael J. Bartlett, Office of the General Counsel, Federal Mediation and Conciliation Service, 2100 K Street, NW., Washington, DC 20427. FOR FURTHER INFORMATION CONTACT: Michael J. Bartlett,
(202)606-3737. SUPPLEMENTARY INFORMATION: In this rulemaking, FMCS proposes to amend its regulations at 29 CFR part 1401, subpart B under FOIA, 5 U.S.C. 552. The primary focus of these proposed amendments is to effectuate for this Agency various provisions under the 1996 Electronic FOIA Amendments, Public Law No. 104-231. Significant new provisions implementing the amendments are found at § 1401.21(a) (electronic reading room),
(d)(pamphlets distribution),
(e)(records disposition), § 1401.22 (deletion marking), § 1401.34(a), (b), (c),
(d)(timing of responses), § 1401.34(d) (volume estimation), § 1401.36
(a)(definitions),
(b)(fee schedules, lack of fees, fee waivers). Proposed revisions to the FMCS fee schedule can be found at § 1401.36(b)(1) (i), (ii), (iv), (3)(v). The duplication charge will remain the same at twenty cents per page, while document search and review charges will increase to $4.00 per each quarter hour or portion thereof for clerical time and $10.00 per each quarter hour or portion thereof for professional time. The amount at or below which the Service will not charge a fee will decrease from $50.00 to $14.00. Sections such as § 1401.32, § 1401.34(d), § 1401.35, § 1401.36(b)(2)(ii) are being revised to reflect minor language or organizational name changes within FMCS. Sections 1401.24 and 1401.37 are being removed because they are neither required by Law nor necessary to interpret the law. List of Subjects in 29 CFR Part 1401, Subpart B Administrative practice and procedure, Freedom of information. For the reasons stated in the preamble, FMCS proposes to amend 29 CFR part 1401, Subpart B as follows: PART 1401—PUBLIC INFORMATION 1. The authority citation for part 1401, Subpart B continues to read as follows: Authority: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552. 2. Revise § 1401.20 to read as follows: § 1401.20 Purpose and scope. This subpart contains the regulations of the Federal Mediation and Conciliation Service providing for public access to information under the Freedom of Information Act, 5 U.S.C. 552. It is the policy of the FMCS to disseminate information on matters of interest to the public and to disclose upon request information contained in agency records insofar as such disclosure is compatible with the discharge of its responsibilities and the principle of confidentiality and neutrality of dispute resolution by third party neutrals. 3. Amend § 1401.21 by revising paragraphs (c),
(d)and
(e)to read as follows: § 1401.21 Information policy.
(c)FMCS maintains a public reading room that contains the records required by the FOIA to be made readily available for public inspection and copying. FMCS shall maintain and make available for public inspection and copying a current subject-matter index of its reading room records. Each index shall be updated regularly, at least quarterly, with respect to newly included records. FMCS shall also make reading room records created on or after November 1, 1996, available electronically through FMCS's World Wide Web Site (which can be found at *http://www.fmcs.gov* ).
(d)Records or documents prepared by FMCS for routine public distribution, e.g., pamphlets and brochures, will be furnished upon request to Office of the Director of Public Affairs, Federal Mediation and Conciliation Service, 2100 K Street, NW., Washington, DC 20427, as long as the supply lasts. The provisions of § 1401.36
(fees)are not applicable to such requests except when the supply of such material is exhausted and it is necessary to reproduce individual copies upon specific request.
(e)All existing FMCS records are subject to disposition according to agency record retention schedules and General Records Schedules promulgated by the National Archives and Records Administration. 4. Revise § 1401.22 to read as follows: § 1401.22 Partial disclosure of records.
(a)If a record contains both disclosable and nondisclosable information, the nondisclosable information will be deleted and the remaining record will be disclosed unless the two are so inextricably intertwined that it is not possible to separate them.
(b)Records disclosed in part shall be marked or annotated to show both the amount and the location of the information deleted and the applicable exemption. § 1401.24 [Removed] 5. Remove § 1401.24 6. Revise § 1401.31 as follows: § 1401.31 Filing a request for records.
(a)Any person who desires to inspect or copy an Agency record should submit a written request to the Office of the General Counsel, Federal Mediation and Conciliation Service, 2100 K Street, NW., Washington, DC 20427. The envelope [or cover sheet] should be marked “Freedom of Information Act request.” Electronic mail requests should be sent to *foia@fmcs.gov.*
(b)Each request should reasonably describe the records being sought, so that the records requested may be located and identified. If the description is insufficient to locate the requested records, the officer processing the request will notify the requester and ask for additional information. § 1401.32 [Amended] 7. Amend § 1401.32 by removing the words “Legal Services Office” in paragraphs
(a)and
(b)and by adding in their place the words “Office of the General Counsel.” 8. Amend § 1401.34 as follows: A. Revise paragraph
(a)and paragraph
(b)introductory text. B. Remove paragraphs (b)(3) and (4). C. Revise paragraph (c). D. Remove the paragraph designation
(b)in the last paragraph of the section and redesignate that paragraph as paragraph (d). E. Amend newly redesignated paragraph
(d)by Removing the term “Deputy Director” and adding the term “Chief of Staff” in its place. F. Add paragraphs
(e)and
(f)to read as follows: § 1401.34 Time for processing requests.
(a)All time limitations established pursuant to this section shall begin as of the time a request for records is received by the Office of the General Counsel.
(b)The officer or employee responsible for responding to the request shall, within twenty
(20)working days following receipt of the request, respond in writing to the requester, determining whether, or the extent to which, the Agency shall comply with the request.
(1)* * *
(2)* * *
(c)Where the time limits for processing a request cannot be met because of unusual circumstances and FMCS determines to extend the time limit on that basis, FMCS will, as soon as practicable, notify the requester in writing of the unusual circumstances and the date by which the processing can be expected to be completed. Where the extension is for more than 10 working days, FMCS will provide the requester with an opportunity either to modify the request so that it may be processed within the time limits or to arrange an alternative time period for processing the request or a modified request. If FMCS reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated.
(d)If any request for records is denied in whole or in part, the response required by paragraph
(b)of this section shall notify the requester of the denial. Such denial shall specify the reason and also advise that the denial may be appealed to the Office of the Chief of Staff of the Agency as specified in § 1401.35. In addition, such denial shall include an estimate of the volume of records or information withheld, in numbers of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable estimation.
(e)FMCS offices may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and or time needed to process the request. A person making a request that does not qualify for the fastest multitrack processing should be given an opportunity to limit the scope of the request in order to qualify for faster processing.
(f)Requests and appeals will be taken out of order and given expedited processing in cases where the requester demonstrates a compelling need.
(1)*Compelling need* means:
(i)Circumstances in which failure to obtain copies of the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii)An urgency to inform the public about an actual or alleged Federal Government activity, if the request is made by a person primarily engaged in disseminating information.
(2)A requester seeking expedited processing should so indicate in the initial request, and should state all the facts supporting the need to obtain the requested records quickly. The requester must also certify in writing that these facts are true and correct to the best of the requester's knowledge and belief.
(3)Within 10 calendar days of its receipt of a request for expedited processing, FMCS will notify the requester of its decision. If a request for expedited treatment is granted, the request shall be given priority and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously. § 1401.35 [Amended]. 9. Amend § 1401.35 by removing the term “Deputy Director” wherever it appears in paragraphs (a), (b), and
(c)and by adding the term “Chief of Staff” in its place. 10. Amend § 1401.36 as follows: A. Remove the word “the” between “forgoing” and “scheduling” and add the words “other than those related to arbitration” between “services” and “which” in § 1401.36(b)(2)(i). B. Revise paragraphs (a)(2),
(3)and (4), (b)(1)(i), (ii), (iv), (b)(2)(ii), (b)(3)(v) and (b)(4) as follows: § 1401.36 Freedom of Information Act fee schedules.
(a)* * *
(2)*Search* means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format.
(3)*Duplication* refers to the process of making a copy of a document necessary to respond to a FOIA request. Copies may be in various forms including machine-readable documentation ( *e.g.* magnetic tape or disk) among others. A requester's specified preference of form or format of disclosure will be honored if the record is readily reproducible with reasonable efforts in the requested form or format.
(4)*Review* refers to the process of examining documents located in response to a request that is for commercial use, to determine whether a document or any portion of any document located is permitted to be withheld. It includes processing any documents for disclosure to the requester, *e.g.* , doing all that is necessary to excise them or otherwise prepare them for release. It does not include time spent resolving general legal or policy issues regarding the applicability of particular exemptions or reviewing on appeal exemptions that are applied. However, records or portions withheld in full under an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review is assessable.
(b)Fee schedules and waivers.
(1)* * *
(i)*Clerical time.* For each one-quarter hour or portion thereof of clerical time, $4.00.
(ii)*Professional time.* For each one-quarter hour or portion thereof of profession time, $10.00.
(iii)* * *
(iv)*Computer time.* For computer searches of records, requestors will be charged the direct costs of conducting the search (as provided in paragraph (b)(3)(i)), although certain requestors will be charged no search fee (as provided in paragraph (b)(3)(ii) and (iii)), and certain other requestors will be entitled to the cost equivalent of two hours of manual search time without charge (as provided in paragraph (b)(3)(iv)). These direct costs will include the cost of operating a central processing unit for that portion of operating time that is directly attributable to the searching for responsive records, as well as the costs of operator/programmer salary attributable to the search. Computer time expressed in fractions of minutes will be rounded to the next whole minute.
(2)* * *
(ii)For those matters coming within the scope of this regulation, the FMCS will look to the provisions of the guidance published by in the Office of Management and Budget's Uniform Fee Schedule and Guidelines (available at *http://www.whitehouse.gov/omb/inforeg/infopoltech.html* ) and the Department of Justice Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act (available at *http://www.usdoj.gov/04foia/04_7.html* ) for making such interpretations as necessary.
(3)* * *
(v)In no event shall fees be charged when the total charges are less than $14.00, which is the Agency cost of collecting and processing the fee itself. If the request is expected to involve an assessed fee in excess of $14.00, the response shall specify or estimate the fee involved before the records are made available.
(4)*Waiver or reduction of charge.* A fee waiver must be requested at the same time that a request for records is made. The requester should provide an explanation of why the waiver is appropriate. If the request for a waiver or reduction is denied, the denial may be appealed to FMCS' Chief of Staff. In the appeal letter, the requester should discuss whatever reasons are given in the denial letter. Documents may be furnished without charge or at reduced levels if FMCS determines that disclosure of the information is in the public interest; that is, because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester. § 1401.37 [Removed] 11. Remove § 1401.37. Dated: July 26, 2007. Michael J. Bartlett, Deputy General Counsel. [FR Doc. E7-14818 Filed 8-2-07; 8:45 am] BILLING CODE 6732-01-P ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD 36 CFR Parts 1193 and 1194 Telecommunications Act Accessibility Guidelines; Electronic and Information Technology Accessibility Standards AGENCY: Architectural and Transportation Barriers Compliance Board. ACTION: Notice of meeting. SUMMARY: The Architectural and Transportation Barriers Compliance Board (Access Board) has established a Telecommunications and Electronic and Information Technology Advisory Committee (Committee) to assist it in revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology. This notice announces the dates, times, and location of two upcoming conference calls. DATES: The conference calls are scheduled for August 21 and August 28, 2007 (beginning at 1 p.m. and ending at 3 p.m. Eastern time each day). ADDRESSES: Individuals can participate in the conference calls by dialing into the teleconference numbers which will be posted on the Access Board's Web site at: *http://www.access-board.gov/sec508/update-index.htm.* Individuals may also participate in the conference calls at the Access Board's offices at 1331 F Street, NW., suite 1000, Washington, DC 20004-1111. FOR FURTHER INFORMATION CONTACT: Timothy Creagan, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC 20004-1111. Telephone number: 202-272-0016 (Voice); 202-272-0082 (TTY). Electronic mail address: *creagan@access-board.gov.* SUPPLEMENTARY INFORMATION: The Architectural and Transportation Barriers Compliance Board (Access Board) established the Telecommunications and Electronic and Information Technology Advisory Committee (Committee) to assist it in revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology. The next committee meetings will take place on August 21 and August 28, 2007 (both meetings will be from 1 p.m. to 3 p.m. Eastern time) by teleconference. The meeting on August 21 will focus on reports and recommendations from the Documentation and Technical Support subcommittee. The meeting on August 28 will focus on reports and recommendations from the Audio-Video subcommittee. The agendas, instructions (including information on captioning), and dial in telephone numbers for the teleconferences are available at *http://www.access-board.gov/sec508/update-index.htm.* Notices of future meetings will be published in the **Federal Register** . The conference calls are open to the public and interested persons can dial into the teleconferences and communicate their views. Members of the public will have opportunities to address the committee on issues of interest to them and the committee during public comment periods scheduled during each conference call. Participants may call into the teleconferences from any location of their choosing. However, all participants must pre-register for each call. This will allow the Access Board to better manage the teleconferences and to provide additional information as needed. Any persons intending to participate must notify Timothy Creagan at *creagan@access-board.gov* by August 15 of their intent to attend the August 21 teleconference and by August 22 of their intent to attend the August 28 teleconference. The Access Board has very limited space at its office which will be available during the conference calls. Anyone wishing to participate on the call at the Access Board must contact Timothy Creagan by these dates to pre-register. Sign language interpreters, an assistive listening system, and real-time captioning will be provided at the Access Board's offices during the teleconferences. For the comfort of other participants, persons attending the teleconferences at the Access Board's offices are requested to refrain from using perfume, cologne, and other fragrances. James J. Raggio, General Counsel. [FR Doc. E7-15062 Filed 8-2-07; 8:45 am] BILLING CODE 8150-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 3 [EPA-HQ-OEI-2003-0001; FRL-8449-9] RIN 2025-AA07 Extension of Cross-Media Electronic Reporting Rule Deadline for Authorized Programs AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to amend the Final Cross-Media Electronic Reporting Rule (CROMERR) deadline for authorized programs (states, tribes, or local governments) with existing electronic document receiving systems to submit an application for EPA approval to revise or modify their authorized programs. This action proposes to extend the current October 13, 2007, deadline until October 13, 2008. Additionally, in the “Rules and Regulations” section of this **Federal Register** , EPA is making this revision as a direct final rule without a prior proposed rule. If the Agency receives no relevant adverse comment, EPA will not take further action on this proposed rule. DATES: Written comments must be received by September 4, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2003-0001,by mail to CROMERR Docket, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this **Federal Register** . FOR FURTHER INFORMATION CONTACT: Evi Huffer, Office of Environmental Information (2823T), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
(202)566-1697; *huffer.evi@epa.gov,* or David Schwarz, Office of Environmental Information (2823T), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
(202)566-1704; *schwarz.david@epa.gov.* SUPPLEMENTARY INFORMATION: I. What Does This Rule Do? This rule proposes to provide temporary regulatory relief to states, tribes, and local governments with “authorized programs” as defined in 40 Code of Federal Regulations
(CFR)§ 3.3. Any such authorized program that operates an “existing electronic document receiving system” as defined in 40 CFR 3.3 will have an additional year to submit an application to revise or modify its authorized program to meet the requirements of 40 CFR part 3. Specifically, this rule proposes to amend 40 CFR 3.1000(a)(3) by extending the October 13, 2007, deadline to October 13, 2008. II. Why Is EPA Issuing This Proposed Rule? EPA proposes to extend the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements beyond those imposed by the underlying final rule (70 FR 59848, October 13, 2007). EPA has published a direct final rule in the “Rules and Regulations” section of this **Federal Register** because EPA views this as a noncontroversial action and anticipates no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If EPA receives no adverse comment, the Agency will not take further action on this proposed rule. If EPA receives adverse comment, the Agency will withdraw the direct final rule and it will not take effect. EPA will address all relevant public comments in any subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this proposed rule or the direct final rule listed elsewhere in today's **Federal Register** must do so at this time. For further information about commenting, please see the ADDRESSES section of this document. III. Does This Action Apply to Me? This action will affect states, tribes, and local governments that have an authorized program as defined in 40 CFR 3.3 and also have an existing electronic document receiving system, as defined in 40 CFR 3.3. For purposes of this rulemaking, the term “state” includes the District of Columbia and the United States territories, as specified in the applicable statutes. That is, the term “state” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of Northern Marina Islands, and the Trust Territory of the Pacific Islands, depending on the statute. Category Examples of affected entities Local government Publicly owned treatment works, owners and operators of treatment works treating domestic sewage, local and regional air boards, local and regional waste management authorities, and municipal and other drinking water authorities. Tribe and State governments States, tribes or territories that administer any federal environmental programs delegated, authorized, or approved by EPA under Title 40 of the CFR. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. IV. What Should I Consider as I Prepare My Comments for EPA? *A. Submitting CBI.* Do not submit this information to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. *B. Tips for Preparing Your Comments. When submitting comments, remember to:* • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. V. Summary of Rule This proposed rule would amend 40 CFR 3.1000(a)(3) by extending the current October 13, 2007 deadline for authorized programs with existing electronic document receiving systems to submit applications to October 13, 2008. For additional discussion of the proposed rule change, see the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** . This proposal incorporates by reference all the reasoning, explanation, and regulatory text from the direct final rule. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. This proposed rule merely extends the regulatory schedule for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems. There are no costs associated with this rule. B. Paperwork Reduction Act This action does not impose any information collection burden. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations (40 CFR part 3) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2025-0003, EPA ICR number 2002.03. A copy of the OMB approved Information Collection Request
(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling
(202)566-1672. The ICR is also available electronically in *www.regulations.gov.* Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule on small entities, a small entity is defined as:
(1)A small business that meets the definition for small businesses based on SBA size standards at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000 (Under the RFA definition, States and tribal governments are not considered small governmental jurisdictions.); and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the possibility of economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this proposed rule are small governmental jurisdictions. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This proposed rule merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems. EPA has therefore concluded that today's action will relieve regulatory burden for all affected small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, tribe, and local governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to state, tribe, and local governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribes, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's rule contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, tribe, or local governments or the private sector. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. EPA has determined that this rule does not contain a federal mandate that may result in expenditures of $100 million or more for states, tribes, and local governments, in the aggregate, or the private sector in any one year. Thus, today's action is not subject to the requirements in Sections 202 and 205 of UMRA. EPA has also determined that this action contains no regulatory requirements that might significantly or uniquely affect small governments, as described in the UMRA, and thus this rule is not subject to the requirements in Section 203 of UMRA. E. Executive Order 13132: *Federalism* Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” EPA has concluded that this proposed rule does not have tribal implications. It will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. G. Executive Order 13045: Children's Health Protection Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to any rule that
(1)is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it is not an economically significant action as defined by Executive Order 12866 and it does not establish an environmental standard intended to mitigate health or safety risks. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. H. Executive Order 13211: Energy Effects This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, with explanations when the Agency decides not to use available and applicable voluntary consensus standards. Today's action does not involve technical standards. EPA's compliance with 12(d) of the National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113, 12(d) (15 U.S.C. 272 note)) has been addressed in the preamble of the underlying final rule [70 FR 59848, October 13, 2007]. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposed rule merely extends the current regulatory schedule for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems. List of Subjects in 40 CFR Part 3 Environmental protection, Conflict of interests, Electronic records, Electronic reporting requirements, Electronic reports, Intergovernmental relations. Dated: July 26, 2007. Stephen L. Johnson, Administrator. [FR Doc. E7-15014 Filed 8-2-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-0541; FRL-8449-7] Approval and Promulgation of Air Quality Implementation Plans; MI AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is approving a request submitted by the Michigan Department of Environmental Management
(MDEQ)on March 31, 2006, to revise the Michigan State Implementation Plan
(SIP)to amend R336.1627 and R336.2005, and adopt R336.2004. These changes take place within Part 6, Emission Limitations and Prohibitions—Existing Sources of Volatile Organic Compound Emissions; Delivery Vessels; Vapor Collection Systems; and Part 10, Intermittent Testing and Sampling, respectively. In the final rules section of this **Federal Register** , EPA is approving the SIP revision as a direct final rule without prior proposal, because EPA views this as a noncontroversial revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If we do not receive any adverse comments in response to these direct final and proposed rules, we do not contemplate taking any further action in relation to this proposed rule. If EPA receives adverse comments, we will withdraw the direct final rule and will respond to all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received on or before September 4, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0541 by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: mooney.john@epa.gov.* • *Fax:* (312)886-5824. • *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch(AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Steve Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-6052, *rosenthal.steven@epa.gov.* SUPPLEMENTARY INFORMATION: In the Final Rules section of this **Federal Register** , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule, and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this **Federal Register** . Dated: July 24, 2007. Walter W Kovalick Jr., Acting Regional Administrator, Region 5. [FR Doc. E7-15012 Filed 8-2-07; 8:45 am] BILLING CODE 6560-50-P GENERAL SERVICES ADMINISTRATION 41 CFR Parts 300-3, 302-3, 302-5, 302-7, 302-12, and 302-16 [FTR Case 2007-304; Docket 2007-0002, Sequence 1] RIN 3090-AI37 Federal Travel Regulation; FTR Case 2007-304, Relocation Allowances-Governmentwide Relocation Advisory Board AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Proposed rule. SUMMARY: The General Services Administration (GSA), Office of Governmentwide Policy (OGP), continually reviews and adjusts policies as a part of its ongoing mission to provide policy assistance to the Government agencies subject to the Federal Travel Regulation (FTR). Accordingly, GSA created the Governmentwide Relocation Advisory Board (GRAB), consisting of Government and private industry relocation experts, to examine Government relocation policy. To allow for the use of private industry expertise in the rulemaking and possible legislative actions, the GRAB was chartered through the Federal Advisory Committee Act on July 9, 2004. The GRAB submitted a final report of its findings on September 15, 2005. If implemented, the 100 plus recommendations of the GRAB would keep Government relocation practices aligned with private sector best practices, as well as improve the overall management of Government relocation programs and reduce costs. This proposed rule transforms many of the GRAB’s recommendations into FTR policy. The GRAB Findings and Recommendations and corresponding documents may be accessed at GSA’s Web site at *http://www.gsa.gov/grab.* DATES: Interested parties should submit comments in writing on or before October 2, 2007 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FTR case 2007-304 by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Search for any document by first selecting the proper document types and selecting “General Services Administration - All” as the agency of choice. At the “Keyword” prompt, type in the FTR case number (for example, FTR Case 2007-304) and click on the “Submit” button. You may also search for any document by clicking on the “Advanced search/document search” tab at the top of the screen, selecting from the agency field “General Services Administration - All”, and typing the FTR case number in the keyword field. Select the “Submit” button. • Fax: 202-501-4067. •Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405. *Instructions:* Please submit comments only and cite FTR case 2007-304 in all correspondence related to this case. All comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. FOR FURTHER INFORMATION CONTACT: Mr. Ed Davis, Office of Travel, Transportation and Asset Management (MT), General Services Administration at
(202)208-7638 or e-mail at *ed.davis@gsa.gov* for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at
(202)501-4755. Please cite FTR case 2007-304. SUPPLEMENTARY INFORMATION: A. Background The General Services Administration (GSA), Office of Governmentwide Policy (OGP), reviews the regulations under its purview to address current Government relocation needs and incorporates private industry policies and best practices, where appropriate. The relocation services industry is complex and changes frequently. Changes in relocation policy need to be made to comport with industry best practices. With the exception of the Relocation Income Tax Allowance (RITA), which will be addressed in a subsequent proposed rule, most of the cost of a relocation is related to the residence transactions. The Federal Government has traditionally reimbursed up to 10 percent of the selling price of the previous residence and 5 percent of the purchase price of the new home (this is known as direct reimbursement). Currently, the tax implications of this transaction are handled through a two-year RITA process, and there are long delays in getting equity into the hands of the employee so that a new residence can be purchased. Through a homesale program, directed by a contracted vendor, these two issues can be solved for the benefit of both the agency and employee. The result is that the employee receives equity when selling to the contracted vendor, and this transaction if accomplished through a vendor, is not taxable to the employee. For smaller relocation expenses such as the Miscellaneous Expense Allowance (MEA), much of private industry uses lump-sum payments. These payments have a small one-time administrative cost and do not need to be reconciled in a post-payment audit. The administrative savings and efficiency improvements of such systems are clear because far less staff time is needed to administer, monitor, and audit payments in a lump-sum scenario. Private industry spends less time on its relocation packages because they are tiered and handle special circumstances more flexibly. Also, in private industry, payment or reimbursement of relocation expenses to the employee or third party vendor rarely extends beyond one year because there are few extensions. The focus is on getting the transferee settled at the new location in permanent quarters as quickly as possible. The main lesson that the Government can learn from benchmarking against private industry is that efficiency is important. OGP has examined the issues facing agencies and their relocating employees. Through GRAB recommendations, internal GSA discussions, consideration of Governmentwide policy interests, and comments added by the Executive Relocation Steering Committee, this proposed rule emerged. B. Proposed Rule This proposed rule implements some of the GRAB’s recommendations. The changes in part 302 will necessitate the addition of the following definitions to part 300-3: amended value sale, appraised value sale, buyer’s value option (BVO), fair market value, and relocation services company (RSC). The proposed changes to 41 CFR Chapter 302 are designed to: *Reinforce the difference between mandatory and discretionary relocation allowances and clarify the tables in part 302-3* - The GRAB wanted to ensure that the FTR highlights which relocation benefits are mandatory and which are discretionary. To do this, several errors need to be corrected in the tables outlining benefits. *Use the standard continental United States (CONUS) per diem for calculating actual expense per diems for househunting trips
(HHTs)and the locality rate per diem for calculating lump-sum HHT benefits in part 302-5 - The GRAB final report explains this issue well:* “. . . , the implementing regulations for FETRA [Federal Employee Travel Reform Act]. . . created an unfortunate inconsistency between HHT and TQSE [temporary quarters subsistence expense] benefits. From that time and continuing today, the traditional method for claiming HHT expenses is linked to the locality rate (FTR Part[sic] 302-5.13 and Part [sic] 301-11.100), while the traditional method for claiming TQSE expenses is linked to the CONUS rate (FTR Part [sic] 302-6.102). Not only is this inconsistent from a practical and logical point of view, it creates an unintended constraint on encouraging the use of a more cost-effective lump-sum HHT reimbursement method: Why should any transferee use the lump-sum benefit granting 5 days’ worth of the locality rate *[actually, the lump-sum method uses a multiplier of 6.25 days for both going on the trip or a multiplier of 5 days for only one person going on the HHT],* when they could use the traditional method and receive up to 10 days“ worth of the locality rate? Simply saving the trouble of submitting receipts is not a sufficient motivator to forego 5 days’ worth of the locality rate. Even if transferees found that the ease of paperwork and the benefit of having their reimbursement paid up-front convinced them to use the lump-sum benefit anyway, the fact that the FTR contains this inconsistency is reason enough to make the change.” GSA originally intended for the househunting regulation to mirror the TQSE process, where the agency either reimburses actual expenses for up to 120 days at the lower standard CONUS rate or calculates a lump-sum reimbursement for up to 30 days, with the higher locality rate as the multiplier. This would give the agencies and transferred employees a real chance to use the incentives of higher payments for a shorter timeframe to get the employees to move into permanent quarters faster. People do actually choose the lump sum for TQSE, but they do not use the lump sum for HHTs because the error removed the intended economic incentive. Agencies report that because of the error, the lump-sum househunting trips are underutilized, while the lump sum for TQSE is frequently utilized. By emulating the TQSE regulations and correcting the error that GSA made in creating the existing househunting regulation, real economic incentives will help work towards employees managing their househunting trips more economically. Just as with the TQSE, the use of the higher locality rate for the lump-sum payment versus the lower standard CONUS rate for actual expense reimbursement will incentivize faster househunting trips managed more carefully by an employee who has economic reasons to do so. *Changing the storage allowance for the temporary storage of Household Goods by amending section 302-7.8* - The GRAB recommended that, instead of allowing for temporary storage for 90 days with one possible 90-day extension, as the FTR does today, the temporary storage benefit should be more logically planned and utilized. The GRAB’s recommendation for temporary storage for CONUS to CONUS transfers is that temporary storage would be limited to 60 days, with no extensions possible. Federal agencies strongly oppose the loss of any possible extension because of the inflexibility this imposes on legitimate cases. In consideration of the Federal agencies’ need for flexibility, we are proposing that CONUS to CONUS moves will have their storage reduced to 60 days with a 30-day extension. This is in line with private industry, which rarely stores household goods for very long. However, since transfers to or from Outside the Continental United States (OCONUS) locations present greater, inherent problems, we are proposing to continue to allow for 90 days with a possible 90-day extension for any shipment that has an OCONUS origin or destination. It is also important for agencies to have a management plan for deciding how and when they will grant temporary storage extensions. This must be based on genuine relocation criteria and not an automatic benefit. Extensions should only be granted for legitimate, unanticipated reasons, not for anything that is the result of poor planning by the employee. *Require employees to limit the asking price to 105% of the appraised value estimate of their home value and to attend residence transaction counseling sessions by changing section 302-12.3* - The GRAB recommendation allows for having two 30-day periods in the marketing of a home in the homesale program, with the latter period limited to 105% of the appraised value or broker’s estimate. This regulation, in line with the current real estate market, where houses sit for much longer than they did when the GRAB was meeting, sets the time for marketing under the broker price at 60 days. This is fair to the home owner, who would have 30 days to let the market justify a belief in a higher price, and it is fair to the RSC, who would then have 30 days to market the house with the price they saw as more in line with its value. With mandatory counseling sessions, agencies ensure that the employees who are relocating understand the different transactions involved in a home sale or purchase. This is an important part of any comprehensive program because unless the employee understands the process, problems regarding implementation may occur. *Require homes to be listed for 60 days prior to accepting an appraised value sale under section 302-12.3(c)* - As was mentioned in the explanation directly above, of the three major homesale programs used by private industry, the appraised value option is the most costly of the three, even though it is a valuable tool when compared to direct reimbursement. The GRAB Report states that appraised value is used by the Government for 41% of homesale program transactions versus the 18% of private industry homesale transactions. The GRAB report strongly recommends that Government homesale programs drive the balance towards amended and BVO options. By requiring that each agency contracting with an RSC employ a 60-day listing prior to accepting an appraised value sale, the number of appraised value sales will be reduced, and the Government will shift its mix of homesale programs to resemble that of private industry. According to the work of the Employee Relocation Council’s auditor, Raffa and Associates, as shown in the GRAB Findings and Recommendations, a shift into the same portfolio mix as private industry would save the Government $35.1 million per year. A 60-day listing period may seem like a long time, but it allows for sales in a slower market. In a heated housing market, the listing will rarely get to 60 days. *Require employees to use the homesale marketing counseling services offered by the homesale contractor under section 302-12.3(e)* - One of the problems inherent in homesale programs is the complexity of the various programs. Direct reimbursement by contrast can be easier to understand. If savings are going to be realized through the use of homesale programs, the employee must understand the options thoroughly. An easy way to do that is by having the employee receive counseling on the various options provided by the RSC. The counseling helps the agency, company, and employee because it clarifies what employees must do to participate in the program and what options the employee has to consider while dealing with the sale of one of his or her largest assets. The agency has a responsibility to monitor these counseling sessions and make sure that the materials and presentation are fair and useful to the employee. Requiring this counseling is useful to everyone. *Require that agencies examine and evaluate their relocation programs and determine whether or not a comprehensive homesale program should be part of their program under sections 302-12.105 and 302-12.106* - The Government has a major difference from private industry in their contracts with RSCs for administering homesale programs. The Government cannot legally assume title to the property from a homesale program, while most private sector companies can assume title. Therefore, the RSCs charge the Government slightly more than they charge private companies, to cover the additional risk that the RSC assumes on each property. This gives the appearance to agencies that RSC-managed homesale programs are more expensive than direct reimbursement for homesale costs, which is the most common practice among Federal agencies. Other factors also make the homesale programs appear more expensive to Government managers. As the GRAB final report states: Most agencies that do not offer their transferees access to a home-sale program base the decision on a perception that reimbursements of direct home-sale costs are lower than the fees generally associated with a RMC [RSC] home-sale program (e.g., up to 10% of the home-sale price for direct reimbursement versus up to 23.5% for a RMC [RSC] home-sale program under [GSA Multiple Awards] Schedule 48). This perception ignores the fact that direct reimbursements are taxable income to the employee and, therefore, typically require added reimbursement from the Government to cover that tax liability, whereas properly structured RMC-[RSC-] assisted homesales are not. The GRAB recommended that the FTR make it mandatory that each agency implement a comprehensive homesale program, including amended, appraised, and BVO’s. Furthermore, the GRAB recommended that each agency try to tilt their mix of the three homesale programs away from the more expensive appraised value and towards the amended and BVO style programs, where actual offers determine the value of a residence. GSA is in strong support of this program but is not willing to mandate that all agencies implement a homesale program. GSA’s position is that this would go against the philosophy that agencies are better managers of their own programs because they understand each agency’s culture and mission better than GSA. However, use of a comprehensive homesale program through an RSC should be a first consideration for all agencies in designing and administering their residence transactions, because the economics of the relocation industry indicate that direct reimbursement is a tool that is best used only for cases where the property is difficult to sell ( *i.e.* , houseboats, mobile homes, geodesic domes, houses with mold or artificial stucco, etc.). This proposed rule would make use of a homesale program the first consideration. The other reason that GSA does not want to mandate homesale programs in lieu of direct reimbursement is that it believes market forces are clearly directing agencies towards doing this as a business decision. More and more agencies are contracting with RSCs for homesale services. GSA also does not want the regulation to require one method of residence transaction reimbursement, because this would possibly prevent evolution of or migration to another new method should one develop. Relocation is a quickly changing industry and the regulation must allow agencies flexibility. *Allow broader use of the Miscellaneous Expense Allowance
(MEA)under part 302-16* - The FTR currently limits the MEA to expenses related to discontinuing or establishing a residence. The GRAB recommended that this limitation be removed, so that the transferee can use the MEA to cover any expenses that emerge in a relocation, whether they are prior to or after the residence transactions. Quoting from the GRAB final report: “Currently, the FTR does not provide any reimbursement mechanism for expenses incurred by employees relating to pet care, child care, or adult care for aging parents who are dependents of the relocating employee. The employee typically incurs these costs while taking a househunting trip. Additionally, employees are “challenged” as the FTR does not provide for any reimbursement for children to accompany the employee on a househunting trip.” Much like the lump-sum househunting payments mentioned above, the employee would be free to use his or her judgment to make sure the money is used wisely. In private industry, such payments are used to give transferees monies to handle their needs without having to voucher for reimbursement. This proposal also eliminates the need for the Government from having to specify what is covered by the MEA. A standard payment for private industry is based on a month’s salary. At this time, the MEA payment to Federal employees remains legally limited to one or two week’s salary for a GS-13 step 10, depending on family status. GSA is planning to address this limitation in a legislative proposal. C. Changes to Current FTR This proposed rule— • Adds definitions for amended value sale, appraised value sale, buyer’s value option, fair market value and relocation services companies in section 300-3.1. • Amends Table B, in section 302-3.2. • Amends Table H, in section 302-3.101. • Amends section 302-5.13 to make the standard CONUS rate the operative per diem for calculating actual expense househunting trips per diems and clarifies the availability and use of lump-sum reimbursements. • Amends section 302-7.8 to limit household goods
(HHG)storage to 60 days with a possible 30-day extension for CONUS to CONUS moves and keeps the 90 days with a possible 90-day extension for moves that have an authorized non-CONUS origin and/or destination. • Amends section 302-12.3 to require that the employee’s residence, if unsold after 30 days at a price set by the employee, be listed at a price no more than 105% of the appraised value for 30 days when an RSC is used and to require the employee to attend relocation counseling sessions. • Amends sections 302-12.105 and 302-12.106 to require the agencies that use a homesale program to administer it in a manner that will drive the programs towards the buyer value option and amended sales, and away from appraised value sales. • Amends sections 302-16.1 and 302-16.2 to remove the connection between the miscellaneous expense allowance and the establishment and disestablishment of a residence and switches the order of the two sections to make a better logical point. D. Executive Order 12866 This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that Executive Order. E. Regulatory Flexibility Act This proposed rule is not required to be published in the **Federal Register** for notice and comment as per the exemption specified in 5 U.S.C. 553(a)(2); therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , does not apply. F. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the proposed changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* G. Small Business Regulatory Enforcement Fairness Act This proposed rule is also exempt from congressional review prescribed under 5 U.S.C. 801 *et seq.* , since it relates solely to agency management and personnel. List of Subjects in 41 CFR Parts 300-3, 302-3, 302-5, 302-7, 302-12, and 302-16 Government employees, Travel and transportation expenses. Dated: June 19, 2007. Kevin Messner, Acting Associate Administrator. For the reasons set forth in the preamble, under 5 U.S.C. 5701-5709, GSA proposes to amend 41 CFR parts 300-3, 302-3, 302-5, 302-7, 302-12, and 302-16 as set forth below: PART 300-3—GLOSSARY OF TERMS 1. The authority citation for 41 CFR part 300-3 continues to read as follows: Authority: 5 U.S.C. 5707; 40 U.S.C. 121(c); 49 U.S.C. 40118; 5 U.S.C. 5738; 5 U.S.C. 5741-5742; 20 U.S.C. 905(a); 31 U.S.C. 1353; E.O. 11609; 36 FR 13747; 3 CFR, 1971-1975 Comp., p. 586, Office of Management and Budget Circular No. A-126, “Improving the Management and Use of Government Aircraft.” Revised May 22, 1992. 2. Amend § 300-3.1 by adding alphabetically the terms and definitions “Amended Value Sale”, “Appraised Value Sale”, “Buyer’s Value Option (BVO)”, “Fair Market Value” and “Relocation Service Company (RSC)” to read as follows: § 300-3.1 What do the following terms mean? *Amended Value Sale* -A residential sale where a bona fide outside offer to buy a residence is accepted by a relocation services company. This offer can be equal to or higher than the guaranteed offer. If the contract is acceptable, the RSC will sign the contract and amend its guaranteed offer to reflect the new value based on the higher sales price. The RSC will then disburse the transferee’s equity (or remaining equity if a portion had been disbursed earlier) based upon this amended value, complete the acquisition of the property, and resell the home to the outside buyer. Amended value sales are often called “amend from zero” sales with the RSC guaranteed offer being the baseline from which the amendments are made. *Appraised Value Sale* -A residential sale where two or more independent appraisers set the price for a guaranteed offer for the purchase of a residence. Under this option, once a transferee’s home is placed in the homesale program, a relocation services company
(RSC)makes a guaranteed offer for the transferee’s home based on the fair market value established by independent appraisers. The offer is guaranteed for a contract specified number of calendar days. If the transferee accepts the guaranteed offer within the time period, the RSC purchases the home, takes the home into its inventory, and disburses the transferee’s equity (or remaining equity if a portion had been disbursed earlier) based upon the offer. It is then the RSC’s responsibility to sell the home, and the agency pays the RSC a fee that covers the closing costs, other expenses, and the risk that the RSC may lose money on the resale of the home. *Buyer Value Option (BVO)* -A residential sale in which a transferee in consultation with a broker sets the initial asking price and sells through the relocation services company
(RSC)for an acceptable outside offer. If the transferee receives an offer from an outside buyer acceptable to the RSC, the RSC buys the home from the transferee at that price, disburses the equity (or remaining equity if a portion had been disbursed earlier) and then immediately re-sells it to the outside buyer; the agency pays the RSC a fee that covers the closing costs and other RSC expenses. If, on the other hand, the transferee does not receive an acceptable offer within, for example, 30 days, then the home is placed in the homesale program and the RSC proceeds with the appraised value option. *Fair Market Value* -The price at which a property would most likely sell if placed on the market for a reasonable period of time. It is the most likely price that a well-informed buyer would pay and a well-informed seller would agree to accept for a given property if the property were placed on the market for a reasonable period of time. *Relocation Service Company (RSC)* -A third party vendor under contract with an agency to assist a transferred employee in relocating to the new official station. Examples of the assistance include, but are not limited to: homesale programs, home marketing assistance, home finding assistance, and property management services. PART 302-3—RELOCATION ALLOWANCE BY SPECIFIC TYPE 3. The authority citation for 41 CFR part 302-3 continues to read as follows: Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a). § 302-3.2 [Amended] 4. Amend § 302-3.2, Table B, Column 2, by removing entries “3” and “4”. § 302-3.101 [Amended] 5. Amend § 302-3.101, Table H, by redesignating entry “5” in Column 1 as new entry “3” in Column 2; and in Column 1, redesignating entry “6” and entry “7” as new entry “5” and new entry “6” respectively. PART 302-5—ALLOWANCE FOR HOUSEHUNTING TRIP EXPENSES 6. The authority citation for 41 CFR part 302-5 continues to read as follows: Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1973 Comp., p. 586. 7. Amend § 302-5.13 by revising the table to read as follows: § 302-5.13 What methods may my agency use to reimburse me for househunting trip expenses? For You are reimbursed You and/or your spouse's transportation expenses. Your actual transportation costs. You and/or your spouse's subsistence expenses.
(a)A per diem allowance at the standard CONUS rate (see *http://www.gsa.gov/perdiem* ), for you and/or your spouse ( *i.e.* , if you both go together; or if you go separately, the standard CONUS rate multiplied by 2), for the 10 days or less that your agency authorizes for you; or
(b)Only if offered by your agency and chosen by you, a lump sum, which is dependent upon spousal participation, as follows:
(1)If you go and your spouse does not, or if your spouse goes and you do not, multiply the applicable locality per diem rate by 5.00 (see *http://www.gsa.gov/perdiem* ).
(2)If you and your spouse both go, together or separately, multiply the applicable locality per diem rate by 6.25 (see *http://www.gsa.gov/perdiem* ). Part 302-7—TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS AND PROFESSIONAL BOOKS, PAPER, AND EQUIPMENT (PBP&E) 8. The authority citation for 41 CFR part 302-7 continues to read as follows: Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1973 Comp., p.586. 9. Revise § 302-7.8 to read as follows: § 302-7.8 What are the time limits for the temporary storage of authorized HHG shipments?
(a)*For CONUS to CONUS shipments* , the initial period of temporary storage at Government expense may not exceed 60 days. You may request additional time, up to a maximum of 30 days; such a request must be approved by the agency official designated for such requests. Under no circumstances may temporary storage at Government expense for CONUS to CONUS shipments exceed a total of 90 days.
(b)*For shipments that include an OCONUS origin or destination* , the initial period of temporary storage at Government expense may not exceed 90 days. You may request additional time, up to a maximum of 90 days; such a request must be approved by the agency official designated for such requests. Under no circumstances may temporary storage for shipments at Government expense that include an OCONUS origin or destination exceed a total of 180 days.
(c)For all shipments, your HHG may be placed in temporary storage at origin, in transit, at destination, or any combination of these, so long as storage at Government expense does not exceed the applicable time limit. PART 302-12—USE OF A RELOCATION SERVICES COMPANY 10. The authority citation for 41 CFR part 302-12 continues to read as follows: Authority: 5 U.S.C. 5738 and 20 U.S.C. 905(c). 11. Amend § 302-12.3 by removing “and” in paragraph (b), redesignating paragraph
(c)as paragraph (f), and adding new paragraphs (c), (d), and
(e)to read as follows: § 302-12.3 Under what conditions may I use a relocation services company?
(c)Agree that once an RSC presents a guaranteed offer through a home buyout program, you must list your residence on the market to the public for 30 days, at a price of no more than 105% of the guaranteed offer;
(d)Agree that if you receive a bona fide offer from an outside buyer that is at or above the guaranteed offer and acceptable to the RSC, you may take the Amended Value sale option;
(e)Attend homesale marketing counseling sessions provided by the chosen RSC; and 12. Revise § 302-12.105 to read as follows: § 302-12.105 How must we administer a relocation services contract? If you have a relocation services contract you must:
(a)Administer your homesale program to give first consideration towards the use of the buyer’s value option (BVO).
(b)Administer your homesale program to give second consideration to amended value sales.
(c)Monitor costs and make adjustments as necessary to ensure that your homesale program continues to provide the best possible value to the Government, considering costs, employee morale and mobility, and other relevant considerations. 13. Amend § 302-12.106, by removing “and” in paragraph (c), redesignating paragraph
(d)as paragraph (e), and adding a new paragraph
(d)to read as follows: § 302-12.106 What policies must we establish when offering our employees the services of a relocation services company?
(d)How you monitor and balance between the three kinds of homesale programs (appraised value, buyer’s value option, and amended value); and PART 302-16—ALLOWANCE FOR MISCELLANEOUS EXPENSES 14. The authority citation for 41 CFR part 302-16 continues to read as follows: Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1975 Comp., p. 586. §§ 302-16.1 and 302-16.2 [Redesignated as §§ 302-16.2 and 302-16.1] 15. Redesignate §§ 302-16.1 and 302-16.2 as §§ 302-16.2 and 302-16.1 respectively; and revise newly redesignated §§ 302-16.1 and 302-16.2 to read as follows: § 302-16.1 What is the purpose of the miscellaneous expenses allowance (MEA)? The miscellaneous expenses allowance
(MEA)is to help defray some of the costs incurred due to relocating. (See part 302-10 of this chapter for specific costs normally associated with relocation of a mobile home dwelling that are covered under transportation expenses.) § 302-16.2 What are miscellaneous expenses? Miscellaneous expenses are:
(a)Costs associated with relocating that are not covered by other relocation benefits of chapter 302.
(b)Expenses allowable under this section including, but not limited to the following: General Expenses Fees/Deposits Losses Appliances Fees for disconnecting/connecting appliances, equipment, or conversion of appliances for operation on available utilities Rugs, draperies, and curtains Fees for cutting and fitting such items when they are moved from one residence quarters to another Utilities (For mobile homes, see § 302-10.204) Deposits or fees not offset by eventual refunds. Medical, dental, and food locker contracts Losses that cannot be recovered by transfer or refund and are due to early termination of a contract. Private Institutional care contracts (such as that provided for handicapped or invalid dependents only) Losses that cannot be recovered by transfer or refund and are due to early termination of a contract. Privately-owned vehicles Registration, Driver’s license, and use taxes imposed when bringing into certain jurisdictions. Transportation of pets The only costs included are those normally associated with transportation and handling of dogs, cats, and other house pets, as well as costs due to stringent air carrier rules. Inoculations, examinations, and boarding quarantine costs are excluded. Also excluded are costs associated with large or exotic animals, costs associated with host country restrictions, and costs arising from special handling difficulties [FR Doc. E7-15156 Filed 8-2-07; 8:45 am] BILLING CODE 6820-14-S 72 149 Friday, August 3, 2007 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. 04-085-5] Contact Information for Alfalfa Producers To Determine Proximity to Roundup Ready Alfalfa Fields AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that on August 6, 2007, the Animal and Plant Health Inspection Service will begin operating a toll-free telephone number for use by conventional and organic alfalfa farmers and prospective alfalfa farmers to inquire about the proximity of their farms or fields to Roundup Ready alfalfa. This action is being taken in compliance with a judgment and order by the United States District Court for the Northern District of California in *Geertson Seed Farms, et al.* v. *Mike Johanns, Secretary of the United States Department of Agriculture, et al.* , Case No. 06-01075. FOR FURTHER INFORMATION CONTACT: The toll-free number for alfalfa farmers to request field locations is
(866)724-6408. For all other information, contact Mr. Thomas Sim, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737-1236;
(301)734-7324. SUPPLEMENTARY INFORMATION: Background The regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. In a notice published in the **Federal Register** on June 27, 2005 (70 FR 36917-36919, Docket No. 04-085-3), the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture, advised the public of its determination, effective June 14, 2005, that the Monsanto/Forage Genetics International
(FGI)alfalfa events J101 and J163 were no longer considered regulated articles under our regulations governing the introduction of certain genetically engineered organisms. On February 13, 2007, the United States District Court for the Northern District of California issued a ruling in a lawsuit filed by several nonprofit organizations and alfalfa growers challenging APHIS' decision to deregulate alfalfa events J101 and J163 (referred to in the lawsuit as Roundup Ready alfalfa). The lawsuit alleged violations of the National Environmental Policy Act (NEPA), the Endangered Species Act, and the Plant Protection Act. The court ruled that the deregulation may have significant environmental impacts that require the preparation of an environmental impact statement (EIS), and that APHIS violated NEPA by not preparing an EIS. Subsequently, the court issued a preliminary injunction order in the case on March 12, 2007, a permanent injunction and judgment on May 3, 2007, and an amended judgment on July 23, 2007. Among other things, these orders prohibited all sales of Roundup Ready alfalfa seed and prohibited all future planting of Roundup Ready alfalfa beginning March 30, 2007. The May 3, 2007, injunction ordered defendant-interveners Monsanto and FGI to provide APHIS with GPS and plat locations of all Roundup Ready alfalfa production acreage, which APHIS in turn would be required to post on a Government Web site. However, the July 23, 2007, amended judgment altered that requirement and instead ordered that APHIS disclose Roundup Ready alfalfa locations to farmers and prospective farmers only, under a three-part disclosure mechanism. First, APHIS is to disclose to farmers the counties in 17 Western States in which Roundup Ready seed or hay fields are located; second, APHIS is to specify, both on its Web site and in a **Federal Register** notice, the toll-free number that farmers in or adjacent to those identified counties may use to request the distances from the nearest Roundup Ready alfalfa fields to their crops; and third, APHIS is to respond to requests from farmers through the toll-free number for the distances of up to five Roundup Ready alfalfa fields nearest to the requesting farmer's property within the county or adjacent county identified. We are complying with the first condition, the disclosure of counties in 17 Western States in which Roundup Ready seed and hay fields are located, by providing a link on APHIS' Biotechnology Regulatory Services
(BRS)homepage at *http://www.aphis.usda.gov/biotechnology/brs_main.shtml* . The listing, which also includes information that is available about Roundup Ready alfalfa fields in States other than the 17 Western States, can be accessed by a link at the Web site's bottom right side that reads “I want to learn about the status of Roundup Ready alfalfa.” In accordance with the second and third conditions of the court's order, on August 6, 2007, APHIS will begin operating a toll-free telephone number for use by alfalfa farmers and prospective alfalfa farmers to inquire about the proximity of their fields to Roundup Ready alfalfa. The number is
(866)724-6408. An operator will be available from 9 a.m. to 5 p.m. eastern time, Monday through Friday (except holidays). Callers must comply with the following two requirements. First, they must be a person who either currently plants conventional or organic alfalfa or plans to do so. Second, they must be ready to provide the operator with either the latitude and longitude coordinates or the mailing address of their farm or field where the alfalfa is or will be grown. Other types of location information cannot be accepted, and only one location from each caller per phone call will be accepted. Callers will be provided the distance from the property they identify to the nearest five fields in the same or adjacent counties that have been planted with Roundup Ready seed. The locations of Roundup Ready alfalfa fields were provided to APHIS by dealers, distributors, and producers of seed under the same court orders referenced above. APHIS cannot verify the accuracy of the location information provided by industry. Currently, APHIS has only obtained complete location information for 17 Western States 1 where Roundup Ready seed or hay is grown. Conventional and organic alfalfa farmers in States other than the 17 Western States should not call the toll-free number until after APHIS has received complete location information from the industry. Please check the APHIS/BRS Web site after September 27, 2007, for a time line of when APHIS believes it will have complete location information for the other States. 1 These 17 Western States are Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming. The toll-free telephone number is for field location information only. For additional information on the Roundup Ready issue, please visit the following Web site: *http://www.aphis.usda.gov/biotechnology/alfalfa.shtml* . Done in Washington, DC, this 30th day of July 2007. Elizabeth E. Gaston, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-15120 Filed 8-2-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Forest Service Salmon-Challis National Forest, Idaho; Salmon-Challis National Forest Travel Management Plan and Off-highway Vehicle Designation AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an Environmental Impact Statement. SUMMARY: The USDA, Forest Service will prepare an environmental impact statement to designate a portion of the National Forest roads, trails, and areas open to public motor vehicle use on the Salmon-Challis National Forest (SCNF), and assign the type of use(s) and season of use allowed on each road and trail or portion thereof. Additionally, the Forest Service will designate some previously unauthorized (or user-created) routes for public motor vehicle use and assign the type of use(s) and season of use allowed on each route or portion thereof. Decisions regarding motorized travel do not include motorized travel over snow. A Motor Vehicle Use Map
(MVUM)depicting those routes that will be open to public motorized travel on the SCNF will be the primary tool to determine compliance with, and enforcement of, motorized vehicle use designations on the ground. Existing routes and user-created routes not designated as open on the MVUM will be legally closed to motorized travel. The SCNF currently has 980,700 acres open to motorized cross-country travel. Those acres will be closed year-round to motorized cross country travel, excluding over-snow vehicles. DATES: Written comments concerning the proposed action should be received by September 14, 2007. The draft environmental impact statement is expected to be released in March 2008 and the final environmental impact statement is expected in August 2008. ADDRESSES: Send written comments to Salmon-Challis National Forest, ATTN: Travel Management Planning, 1206 South Challis Street, Salmon, ID 83467. FOR FURTHER INFORMATION CONTACT: Karen Gallogly, Travel Planning Team Leader, Salmon-Challis National Forest, 1206 South Challis Street, Salmon, ID 83467. Telephone:
(208)756-5103. SUPPLEMENTARY INFORMATION: Purpose and Need The purpose of this action is to designate a public motorized vehicle transportation system for the SCNF that addresses current and anticipated recreation needs, provides a variety of recreation access opportunities, considers management concerns (such as public safety, maintenance costs, and consistency with adjoining public lands), reduces impacts to forest resources, recognizes reserved or outstanding rights, and reduces conflicts between recreational uses. The need for this action is to meet national direction published in the **Federal Register** , 36 CFR Parts 212, 251, 261, 295 *Travel Management: Designated Routes and Areas for Motor Vehicle Use* ” ( **Federal Register** 2005: 70 FR 68264) (Travel Management Rule). This rule requires designation of those roads, trails, and areas open to motor vehicle use on Forest System Lands. The rule prohibits the use of motor vehicles off the designated system, as well as use of motor vehicles on routes and in areas that are not consistent with the designation. Proposed Action The project area includes the approximate 3.0 million acres under the administration of the SCNF, excluding the approximate 1.3 million acre-Frank Church River of No Return Wilderness Area which is Congressionally mandated as non-motorized. The proposed action is the Forest's initial description of designated roads, trails and areas which would be available for public motor vehicle use on the SCNF. The proposed action is based on existing travel plans for both the Salmon and Challis National Forests and input gathered from the public, cooperating agencies and organizations, and Forest Service specialists during meetings, workshops, and field trips held from summer 2006 through May 2007. This proposal is only one alternative that will be evaluated in the Environmental Impact Statement for the Salmon-Challis National Forest Travel Management Plan and Off-highway Vehicle Designation. The proposed action identifies approximately 3,400 miles of roads designated for motorized public use and about 1,100 miles of motorized trails. This proposal would prohibit all motorized cross country travel and close all roads, trails, and routes not specifically designated for motorized public use. Off-route access would be permitted for 300 feet on either side of designated motorized routes, except the Salmon River Road (FR #30) to accommodate access to and from dispersed campsites only. Camping with the use of a motor vehicle (e.g. car, motor-home, truck and camp trailer, camper, off-highway vehicle, or motorcycle) is only allowed in designated dispersed camping areas and designated pull-outs along the Salmon River Road (FR #30). Day-use parking is allowed along the Salmon River Road. Motor vehicle use for big game retrieval off of designated roads or designated motorized trails would not be allowed. Motorized use beyond those limits would be subject to citations and fines by law enforcement. The following uses would not be affected by this decision and are outside the scope of this project:
(1)Over-snow vehicles;
(2)aircraft;
(3)watercraft;
(4)non-motorized uses (e.g. hiking, equestrian, mountain bikes);
(5)search and rescue operations;
(6)law enforcement operations;
(7)firefighting operations;
(8)permitted uses (e.g. woodcutting, livestock herding/fence maintenance;
(9)limited administrative access;
(10)legal ingress and egress to private land;
(11)new or non-national forest roads; and
(12)use of roads with legally documented rights-of-way held by state, county or other public road authority. Detailed maps and data tables displaying proposed designated roads and trails across the Forest, and designated dispersed camping areas and pull outs along the Salmon River Road are posted on the SCNF Web site at: *http://www.fs.fed.us/r4/sc/* Forest Plan Amendment The Challis National Forest Land Resource Management Plan would be amended as part of the SCNF Forest Travel Management Plan project to include changes to the two sections outlined below. Challis National Forest Plan Amendment #9: Forestwide Management Direction Standards and Guidelines. Current Direction Clause d. Proposed Wilderness. Continue existing ORV closures or expand closures where needed to allow adverse impacts from ORV's to heal. May allow ORV use to continue on the following roads and/or trails: a. Toolbox-Herd Peak Trail #051—Between the ridgetop at the head of Toolbox Canyon, to Herd Peak—on the two short segments of this trail which dip into the proposed wilderness area; two-wheeled motorized and mechanized vehicles only. b. Wildhorse Road #136—From proposed wilderness boundary ( 1/4 mile above Wildhorse Campground) to end of current road; no vehicle size restrictions. c. Long Lost Creek Road #434—From proposed wilderness boundary to Trailhead for Long Lost Trail #194; no vehicle size restrictions. d. Long Lost Trail #194—From Long Lost Creek Road #434 to end of trail; two wheel, motorized and mechanized vehicles only. e. Swauger Lakes Trail #091—From Long Lost Creek Road #434 to Dry Creek Trail #240; two-wheel, motorized and mechanized vehicles only. f. Long Lost-Wet Creek Trail #245—From Long Lost Trail #194 to Shadow Lakes; two wheel, motorized and mechanized vehicles only. Amended Directon Clause d. Proposed Wilderness; item d described above would be removed from the list. Long Lost Trail #194 would not be a designated motorized route and would not be open for motorized public use. Challis National Forest Plan Amendment #9: Management Area Direction for Management Area #16 Borah Peak, Recreation, Management Area Direction. Current Direction Clause c. Swauger Lakes Trail #091—from Long Lost Creek Road #434 to Dry Creek Trail #240; two wheel, motorized and mechanized vehicles only. Amended Direction Clause c. Swauger Lakes Trail #091—from Long Lost Creek Road #434 to Dry Creek Trail #240; motorized and mechanized vehicles 50″ or less in width only. Possible Alternatives Alternatives to the proposed action will be considered and evaluated. The No Action alternative would adopt the existing systems of open roads and trails displayed on current travel plans for the Salmon National Forest and the Challis National Forest and designate those routes as open to public motorized travel. Alternatives to the Proposed Action and No Action will depict differing combinations of routes to remain open to motorized travel. The Proposed Action and the alternative actions will provide a system of routes that differ from existing conditions and the No Action alternative. Less restrictive alternatives would generally entail designating a greater number of miles of roads and trails to be open to motorized travel than the Proposed Action. Alternatives considered to be less restrictive could also include fewer constraints on season of use or vehicle types allowed on designated routes. Less restrictive alternatives would generally provide for more motorized recreational use opportunities. More restrictive alternatives would generally entail designating fewer miles of roads and trails to be open for motorized travel than the Proposed Action or have more constraints on season of use and vehicles types using designated routes. More restrictive alternatives would provide motorized recreational opportunities, yet there may be greater emphasis on non-motorized recreation. A consequence of designating routes open for motorized travel is that those routes not designated as open would be identified as closed to motorized travel. Road closure procedures that involve ground-disturbing activities would not be part of the Proposed Action or alternatives and would require separate and distinct site-specific NEPA decisions regarding the implementation aspects of road closures. The environmental effects of having roads closed to motorized travel will be evaluated in this analysis. Identification of new routes that would meet the objectives for a motorized transportation system may be, as appropriate, part of this travel management planning. Separate, site-specific NEPA decisions would be required to implement ground-disturbing activities associated with new route construction. Responsible Official William A. Wood, Supervisor, Salmon-Challis National Forest, Headquarters Office, 1206 South Challis Street, Salmon, Idaho 83467, is the responsible official for making the decision and providing direction for the analysis. Nature of Decision To Be Made Based on the purpose and need for the proposal, the Forest Supervisor will evaluate the Proposed Action and other alternatives to decide which roads, trails and areas will be designated as open to the public for motorized use and the allowed season and/or type of use for those routes open to motorized travel. Federal land managers are directed (Executive Order 11644, 36 CFR 212 and 43 CFR 8342.1 to ensure that the use of motorized vehicles and off-road vehicles will be controlled and directed so as to protect the resources of those lands, to promote the safety of users, minimize conflicts among the the various uses of federal lands, and to provide for public use of roads and trails designated as open. Scoping Process Preliminary public involvement was initiated in April 2006 to inform the public and stakeholders on the objectives of travel management. The public was also asked to provide input about specific routes they wanted to remain open and/or those routes that may be in conflict with other desired conditions sought by the public on Forest Service Lands. This initial comment period ended in March 2007. The SCNF received many comments on individual routes and numerous general comments about the area and travel management as a whole. This initial public input was used to develop the preliminary route-by-route Proposed Action which will be now used as the Forest starts the more formal scoping process. The Forest will conduct the following series of public, open-house-style meetings across the Forest and in surrounding communities to discuss the Proposed Action with interested parties and those who may be affected by the proposal: • Challis, Idaho—August 7, 2007, 4:30-8 p.m. Challis-Yankee Fork Ranger District Office, Highway 93 North. • Mackay, Idaho—August 8, 2007, 4:30-8 p.m. Lost River Ranger Distrct Office, 716 West Custer Street. • Salmon, Idaho—August 9, 2007, 4:30-8 p.m. Salmon, Idaho—Public Lands Center, 1206 South Challis Street. • Idaho Falls, Idaho—August 15, 2007, 4:30-8 p.m. Caribou-Targhee National Forest, Supervisor's Office, 1405 Hollipark Drive. • Blackfoot, Idaho—August 16, 2007, 4:30-8 p.m. Blackfoot City Council Room, Library Building, 157 No. Broadway. • North Fork, Idaho—August 22, 2007, 4:30-8 p.m. North Fork Fire Station, Highway 93. • Leadore, Idaho—August 28, 2007, 4:30-8 p.m. Leadore Community Center, Highway 28. Notice of all meetings will be posted on the Forest's website and advertised in the Recorder Herald, Challis Messenger, Arco Advertiser, and Post Register newspapers. Based on comments received as a result of this notice and after the Forest has conducted public meetings and afforded the public sufficient time to respond to the preliminary Proposed Action, the Forest will use the public scoping comments and concerns along with resource-related input from the interdisciplanary team and other agency resource specialists to identify a set of issues to carry forward into the environmental analysis. Preliminary Issues The Forest Service has received some indications of potential issues from the initial public involvement process. These potential issues include:
(1)Adverse resource impacts caused by inappropriate types of vehicle use and unrestricted season of use.
(2)Infringement on wildlife caused by roads in important or critical habitat, high density of roads in wildlife habitat areas, and disturbance of wildlife during critical lifecycle periods.
(3)Loss of recreational opportunity when existing routes are closed to motorized travel.
(4)Loss of semi-primitive and primitive recreational opportunity if more routes are open to motorized travel.
(5)Failure to accommodate the growing number of motorized users desiring to use federal lands for recreational riding of ATVs and motorcycles.
(6)Inconsistencies between adjoining public lands.
(7)Enforcement concerns centered on whether the agency has the ability to provide enforcement once decisions have been made on allowed routes and uses for motorized travel.
(8)Safety concerns on routes where multiple vehicle types (full-sized trucks and cars, ATVs, and motorcycles) are allowed.
(9)Conflicts with landowners when routes cross private lands to access federally managed lands. The Forest Service recognizes that this list of issues may not be complete and issues will be further defined and refined as scoping continues. A comprehensive list of key issues will be determined before the range of alternatives is developed and the environmental analysis is started. Comment Requested This notice of intent begins the formal scoping process in the development of the environmental impact statement. All comments received during the initial comment period (April 2006-March 2007) will be brought forward into this formal scoping, and those who commented then need not comment again to have their comments considered, or to demonstrate their interest in this planning process. Any new or additional comments about the proposed action would be most useful if received by September 7, 2007. Persons and organizations commenting during the intitial scoping will be maintained on the mailing list for future information about Salmon-Challis National Forest Travel Management Planning. Early Notice of Importance of Public Participation in Subsequent Environmental Review: A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency
(EPA)publishes the notice of availability in the **Federal Register** . Written comments are preferred and should include the name and address of the commenter. Comments submitted for this proposed action will be considered part of the public record. The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions ( *Vermont Yankee Nuclear Power Corp.* v. *NRDC, 435 U.S. 519, 553 (1978).* ) Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts ( *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980)). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21.) Dated: July 25, 2007. William A. Wood, Forest Supervisor. [FR Doc. E7-14977 Filed 8-2-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Forest Service Pinaleño Ecosystem Restoration Project, Safford Ranger District, Coronado National Forest, Graham County, Arizona AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: In accordance with the President's Council on Environmental Quality
(CEQ)Regulations Implementing the Procedural Provisions of the National Environmental Policy Act
(NEPA)of 1969, the U.S. Department of Agriculture, Forest Service, Coronado National Forest, announces its intent to prepare an Environmental Impact Statement
(EIS)to evaluate a proposed action to thin dense forests, remove standing dead trees and down woody debris, and use prescribed fire on approximately 3,705 acres in the Pinaleño Mountains in Graham County, Arizona, within Townships 8 and 9 South, Ranges 23 and 24 East, Gila and Salt River Meridian. These treatments would be carried out over a 10-year period for the purposes of restoring a fire-adapted ecosystem and aiding in the recovery of the Mount Graham red squirrel population and habitat. DATES: Comments concerning the scope of the EIS analysis must be received by 30 days following the publication of this notice. The Draft EIS is expected to be filed with the Environmental Protection Agency
(EPA)in the spring of 2008. At that time, EPA will publish a Notice of Availability
(NOA)of the Draft EIS in the **Federal Register,** which will begin a period of public review of the Draft EIS. The review period will comprise 45 days from the date of publication of the NOA in the **Federal Register** . The Final EIS is scheduled to be completed in the summer of 2008. ADDRESSES: Written comments on this notice may be mailed to the Craig Wilcox, Forest Silviculturist, Coronado National Forest, Safford Ranger District, 711 S. 14th Ave., Suite D, Safford, AZ 85546. Written comments may also be sent by facsimile to Mr. Wilcox at
(928)428-2393. Comments may be submitted by electronic mail to *cpwilcox@fs.fed.us* . Envelopes and the subject line of electronic mail messages or faxes should be labeled “Pinaleño Ecosystem Restoration Project EIS.” FOR FURTHER INFORMATION CONTACT: For information on the Pinaleño Ecosystem Restoration Project, please contact Mr. Craig Wilcox, Forest Silviculturist, Coronado National Forest, at the above address, and telephone
(928)348-1961. Questions on the Forest Service NEPA process may be directed to Ms. Andrea Wargo Campbell, Forest NEPA Coordinator, at 300 W. Congress St., Tucson, AZ 85701, and telephone
(520)388-8352. SUPPLEMENTARY INFORMATION: Background Over the past 100 years, fire suppression and other factors have diminished the natural ecological role of fire in the Pinaleño Mountains on the Safford Ranger District of the Coronado National Forest, resulting in a higher than average stand density and a heavy accumulation of dead and downed trees (fuel load). Both of these forest conditions increase the probability and consequences of severe wildland fire occurrence in the area. In 1996 and 2004, large-acreage, high-intensity wildland fires exacerbated a reduction in the population of the Federally endangered Mount Graham red squirrel ( *Tamiasciurus hudsonicus grahamensis* ) through habitat loss and mortality. Also, since 1996, progressive insect infestations have defoliated and killed trees in the spruce-fir and mixed-conifer forests of the Pinaleño Mountains. Tree mortality associated with these outbreaks has exacerbated the probability of wildland fire and contributed further to a decline in the red squirrel population through habitat loss. Today, the population of the red squirrel is at its lowest point since censuses were initiated in 1986, and the viability of the species is of paramount concern to both the Forest Service and other Federal and state wildlife management agencies. In May 2005, the Forest Service developed a tentative proposal to treat this area of the Forest to decrease the probability of severe wildland fire and improve general forest health. At that time, a scoping notice was distributed to the public requesting comments on the proposal, and two open house meetings were held to explain the nature of the treatments that were planned to be implemented. Based on public input and a continued decline in the squirrel population, the Forest Service has since recognized the need for further refinement of the proposed action to achieve a balance between short-term protection of squirrel habitat and long-term forest restoration. Thus, in 2007, a refined proposed action was developed to emphasize a concurrent reduction in the potential for severe wildland fire impacts and insect and disease outbreaks, while managing for long-term sustainability of red squirrel habitat. Given the sensitive nature of any proposed Forest treatments to the red squirrel and its habitat, the Forest Service decided to prepare an EIS that would provide a robust analysis to the decisionmaker, cooperating agencies and the public. Proposed Action The proposed action that will be evaluated in this EIS includes both on-the-ground treatments to improve Forest health and improve or protect red squirrel habitat; and administrative actions to incorporate amendments to the governing Forest Land and Resource Management Plan (Forest Plan), the latter of which will allow on-the-ground treatments to be implemented. On the ground, approximately 3,705 acres of Forest would receive various combinations of silvicultural prescriptive treatments and/or fuel reduction actions, which include mechanical treatments and prescribed fire. To accomplish the proposed action, the Forest Plan must be amended to allow Christmas tree removal and public fuelwood gathering and to establish less restrictive Visual Quality Objectives
(VQO)in the project area. Thus, the EIS will also evaluate proposed action of amending the Forest Plan to change current standards and guidelines for the project area. The proposed action would implement more than 50 combinations of vegetation treatment options, depending on stand density and other physical conditions. These combinations will follow two general treatment strategies tiered from management guidance for the Mount Graham red squirrel and the Mexican spotted owl. Live-tree thinning, using a combination of variable density, thinning from below, and group selection thinning techniques, is proposed as a silvicultural treatment on approximately 2,862 acres. In this treatment area, no live or dead trees larger than 18-inches diameter at breast height
(dbh)would be removed on 1,773 acres; larger than 12-inches dbh on 47 acres; and larger than 9 inches dbh on 1,042 acres. Pockets of standing dead trees (up to 18-inches dbh) would be removed in areas where high tree mortality has occurred because of wildland fire and/or insect infestations. Forest fuel reduction treatments would generally occur in the same areas where silvicultural treatments are proposed. These actions include masticating small trees (461 acres); lopping and scattering of trees less than 9 inches diameter (3,092 acres); underburning (2,642 acres); hand piling and burning small trees (1,612 acres); and pruning trees in treatment units that are along major roads. Vegetation that is not mechanically reduced onsite would be removed from treatment units and transferred to collection points (landings) using ground-based mechanical removal equipment, cable logging systems, and/or manual, hand-based labor. The transfer method for each treatment unit would depend upon topography, availability of road access, cost, and resource protection needs. After material is removed from treatment units and taken to landings, it would be processed into sawlogs, firewood, or chips, and trucked from the project area. Some material may be piled and burned at the landing site. All proposed treatments would include resource-specific design criteria to guide the manner in which the actions are implemented in order to minimize or reduce anticipated effects. Treatments are expected to continue in the project area for up to a period of ten years. Purpose of and Need for Action The purpose of this proposed action is to restore Forest ecosystem health and to protect habitat or restore degraded habitat for the endangered Mount Graham red squirrel. Current fuel loads and stand densities in the project area are much greater than historic forest conditions, leaving the forest increasingly vulnerable to disease, insect infestations, and fire. The ecological implications of these shifts have led to increased susceptibility of the Forest to insect outbreaks and stand-replacing fires. Therefore, there is a need to initiate restoration of natural ecological processes and to treat the causes of declining ecosystem health by reducing stand densities, changing understory species composition, and reducing fuel loading. Restoration seeks to return forests, or to initiate an ecological trajectory to return forests, to a condition that is self-sustaining and compatible with the conditions under which they naturally evolved. According to the Mount Graham Red Squirrel Recovery Plan (USDI Fish and Wildlife Service, 1993, Arizona Ecological Services State Office, Phoenix, AZ), the main threats to this endangered subspecies are habitat loss and catastrophic wildland fire. Over the past 20 years, approximately 50% of previously occupied red squirrel habitat has been rendered unsuitable due to insect outbreaks and fire. Associated with this reduction in habitat, there is an accompanying decline in population size; the current population estimate is 216 squirrels. As such, the remaining habitat, most of which falls within the project area, is of high importance. Therefore, a need exists to protect red squirrel habitat within the project area from losses due to fire, insect outbreaks, and diseases, and to restore areas of degraded habitat for this subspecies. Preliminary Identification of Issues *Based on a preliminary review of the proposed action, the following issues were identified:* 1. Short term impacts to the Mexican spotted owl may occur. 2. The efficacy of fuel reduction treatments proposed in this project is limited by the need to protect the Mount Graham red squirrel. 3. An increase of interspecies competition from the introduced Abert's squirrel with the Mount Graham red squirrel may result due to an increase in pine species. 4. An increase of avian predation on the Mount Graham red squirrel may result due to a reduction in hiding cover. Responsible Official Jeanine Derby, Forest Supervisor, Coronado National Forest, will be the Responsible Official who prepares the Record of Decision at the conclusion of this NEPA review. The address for the Coronado National Forest is 300 W. Congress St., Tucson, AZ 85701. Nature of NEPA Decision To Be Made The Coronado National Forest Supervisor's decision will address implementation of:
(1)The proposed action, including Forest Plan amendments,
(an)alternative(s) to the proposed action and/or amendments if any exist, or
(3)the no-action alternative; and approve or disapprove each of three proposed amendments to the Forest Plan. Comments Requested The Forest Service encourages citizens to express issues, concerns, and suggestions they may have about this proposed action. Comments should be directly related to the proposed action to best assist us in our environmental impacts analysis. Although comments are welcome at any time, they will be most useful to us if they are received by 30 days following the publication of this notice If you have any questions about this notice or the comment process, please contact Craig Wilcox, Forest Silviculturist, Coronado National Forest, Safford Ranger District, at telephone
(928)348-1961, prior to submitting your comments. Written comments on this notice may be mailed to Craig Wilcox, Forest Silviculturist, Coronado National Forest, Stafford Ranger District, 711 S. 14th Ave., Suite D, Safford, AZ 85546. You may also submit written comments by facsimile to Mr. Wilcox at
(928)428-2393. Comments may be submitted by electronic mail to *cpwilcox@fs.fed.us.* Envelopes and the subject line of electronic mail messages or faxes should be labeled “Pinaleño Ecosystem Restoration Project EIS.” Comments and personal information associated with them, such as names and addresses, will become part of the administrative project record for this NEPA review. As such, they may be made available to a third-party upon request pursuant to the Freedom of Infomation act (FOIA). If you do not wish your personal information to be subject to release under FOIA, you may choose not to include it with your comments. Alternatively, you may request an exemption from FOIA with your comments submittal. Should you choose the latter, you will be informed by the Forest Service as to whether or not your request qualifies for an exemption. If it does not, you will be afforded the opportunity to resubmit your comments without personal information or to withhold them. Early Notice of the Importance of Public Participation in the NEPA Process Following the 30-day scoping period announced in this notice, the Forest Service will prepare a draft environmental impact statement (DEIS). Upon completion, the DEIS will be made available for a 45-day public review and comment period that will begin on the date that the EPA publishes a Notice of Availability of the DEIS in the **Federal Register** . The Forest Service believes that, at this early stage, it is important to provide the public with notice about several court rulings related to public participation in the NEPA environmental review process. First, reviewers of a DEIS must structure their participation in the NEPA review so that it is meaningful and alerts the agency to the reviewer's position and contentions [ *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519, 553 (1978)]. Also environmental objections that could be raised at the DEIS stage but are not raised until after completion of the final environmental impact statement
(FEIS)may be waived or dismissed by the courts [ *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wisc. 1980)]. Because of these court rulings, it is very important that those parties who are interested in this proposed action participate before the close of a public comment period so that substantive comments and objections are available to the Forest Service in a timely manner that will allow them to be meaningfully considered and subsequently addressed in the FEIS. To assist the Forest Service in identifying and considering issues and concerns about the proposed action, comments on a DEIS should be as specific as possible. It is also helpful if comments refer to specific line numbers, pages, and/or chapters of the DEIS. Comments may address the adequacy of the DEIS or the merits of the alternatives formulated and discussed in it. For comments of this nature, reviewers may choose to refer to CEQ regulations at 40 CFR 1503.3. Comments received, including the names and addresses of those who comment, will be considered part of the public record of this NEPA review and will be available for public inspection ( *Authority:* 40 CFR 1501.7 and 1508.22; FSF 1909.15, Section 21). *Authorization:* National Environmental Policy Act of 1969 as amended (42 U.S.C. 4321-4346); Council on Environmental Quality Regulations (40 CFR parts 1500-1508); U.S. Department of Agriculture NEPA Policies and Procedures (7 CFR part 1b). Dated: July 30, 2007. Jeanine A. Derby, Forest Supervisor. [FR Doc. 07-3812 Filed 8-2-07; 8:45 am]
Connectionstraces to 35
Traces to 35 documents
U.S. Code
28 references not yet in our index
  • 20 CFR 404
  • Pub. L. 108-203
  • Pub. L. 100-203
  • 28 CFR 549
  • Pub. L. 109-248
  • 29 CFR 1401
  • Pub. L. 104-231
  • 61 Stat. 136
  • 40 CFR 3
  • 40 CFR 2
  • 40 CFR 9
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 40 CFR 52
  • 5 USC 5701-5709
  • 41 CFR 300
  • 5 USC 5741-5742
  • 41 CFR 302
  • 7 CFR 340
  • 36 CFR 212
  • 43 CFR 8342.1
  • 435 U.S. 519
  • 803 F.2d 1016
  • 490 F. Supp. 1334
  • 40 CFR 1503.3
  • 40 CFR 1501.7
  • 42 USC 4321-4346
  • 7 CFR 1
Citation graph
cites case law
Rules and Regulations
Notice of proposed rulemaking
U.S.C.§ 402
C.F.R.§ 404.408
Fed. Reg.Notices
U.S.C.§ 1801
U.S.C.§ 4248
U.S.C.§ 4247
U.S.C.§ 4241
U.S.C.§ 2241
U.S.C.§ 2242
SCOTUS435 U.S. 519
F. App'x803 F.2d 1016
F. Supp.490 F. Supp. 1334
Cites 63 · showing 12Cited by 0 across 0 sources
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