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Code · REGISTER · 2007-08-10 · Federal Aviation Administration (FAA), DOT · Rules and Regulations

Rules and Regulations. Final rule

51,885 words·~236 min read·/register/2007/08/10/07-3897

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BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-26364; Airspace Docket No. 06-ANM-12] Establishment of Class E Airspace; Beaver, UT AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This action will establish Class E airspace at Beaver, UT. Additional Class E airspace is necessary to accommodate aircraft using a new Area Navigation
(RNAV)Global Positioning System
(GPS)Instrument Approach Procedure
(SIAP)at Beaver Municipal Airport. This will improve the safety of Instrument Flight Rules
(IFR)aircraft executing the new RNAV GPS IAP at Beaver Municipal Airport, Beaver, UT. DATES: 0901 UTC, October 25, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 740.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Ed Haeseker, Federal Aviation Administration, System Support Group, Western Service Area, 1601 Lind Avenue, SW., Renton, WA 98057; telephone
(425)917-6714. SUPPLEMENTARY INFORMATION: History On February 23, 2007, the FAA published in the **Federal Register** a notice of proposed rulemaking to establish Class E airspace at Beaver, UT, (72 FR 8136). This action would improve the safety of IFR aircraft executing this new RNAV GPS approach procedure at Beaver Municipal Airport, Beaver, UT. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order. The Rule This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Beaver, UT. Additional controlled airspace is necessary to accommodate IFR aircraft executing the new RNAV
(GPS)approach procedure at Beaver Municipal Airport, Beaver, UT. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation;
(1)is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended]. 2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9P, Airspace Designations and Reporting Points, dated September 1, 2006, and effective September 15, 2006 is amended as follows: Paragraph 6005 Class E airspace areas extending upward from 700 feet or more above the surface of the earth. ANM UT E5 Beaver, UT [New] Beaver Municipal Airport, UT (Lat. 38°13′51″ N., long. 112°40′31″ W.) Bryce Canyon VORTAC (Lat. 37°41′21″ N., long. 112°18′14″ W.) That airspace extending upward from 700 feet above the surface within a 5.0-mile radius of Beaver Municipal Airport and within 3 miles each side of the 261° bearing from the Airport extending from the 5.0-mile radius to 14.0 miles west of the Airport, and that airspace extending upward from 1,200 feet above the surface beginning at lat. 38°19′24″ N., long. 113°30′00″ W.; thence east on V-244 to lat. 38°22′22″ N., long. 112°37′47″ W.; thence south on V-257 to BRYCE CANYON VORTAC; thence west on V-293 to lat. 37°56′30″ N., long. 113°00′00″ W.; to point of beginning. Issued in Seattle, Washington, on April 26, 2007. Clark Desing, Manager, System Support Group, Western Service Center. [FR Doc. E7-15579 Filed 8-9-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 24 [Docket Number: OSHA-2007-0028] RIN 1218-AC25 Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provisions of Six Federal Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as Amended AGENCY: Occupational Safety and Health Administration, Labor. ACTION: Interim final rule; request for comments. SUMMARY: The Department of Labor amends the regulations governing the employee protection (“whistleblower”) provisions of Section 211 of the Energy Reorganization Act of 1974, as amended (“ERA”), to implement the statutory changes enacted into law on August 8, 2005, as part of the Energy Policy Act of 2005. The regulations also make the procedures for handling retaliation complaints under Section 211 of the ERA and the environmental whistleblower statutes listed in Part 24 as consistent as possible with the more recently promulgated procedures for handling retaliation complaints under other employee protection provisions administered by the Occupational Safety and Health Administration (“OSHA”), see 29 CFR parts 1979-1981. DATES: This interim final rule is effective on August 10, 2007. Comments and additional materials must be submitted (postmarked, sent or received) by October 9, 2007. ADDRESSES: You may submit comments and additional materials by any of the following methods: *Electronically:* You may submit comments and attachments electronically at *http://www.regulations.gov* , which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions. *Fax:* If your submissions, including attachments, do not exceed 10 pages, you may fax them to the OSHA Docket Office at
(202)693-1648. *Mail, hand delivery, express mail, messenger or courier service:* You must submit three copies of your comments and attachments to the OSHA Docket Office, Docket No. OSHA-2007-0028, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t. *Instructions:* All submissions must include the Agency name and the OSHA docket number for this rulemaking (Docket No. OSHA-2007-0028). Submissions, including any personal information you provide, are placed in the public docket without change and may be made available online at *http://www.regulations.gov.* Therefore, OSHA cautions you about submitting personal information such as social security numbers and birth dates. For further information on submitting comments plus additional information on the rulemaking process, see the “Public Participation” heading in the SUPPLEMENTARY INFORMATION section of this document. *Docket:* To read or download submissions or other material in the docket, go to *http://www.regulations.gov* or the OSHA Docket Office at the address above. All documents in the docket are listed in the *http://www.regulations.gov* index; however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. FOR FURTHER INFORMATION CONTACT: Nilgun Tolek, Director, Office of Investigative Assistance, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3610, 200 Constitution Avenue, NW., Washington, DC 20210; telephone
(202)693-2199. This is not a toll-free number. The alternative formats available are large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) and audiotape. SUPPLEMENTARY INFORMATION: I. Background The Energy Policy Act of 2005, Public Law 109-58, was enacted on August 8, 2005. Among other provisions, this new law amended the employee protection provisions for nuclear whistleblowers under Section 211 of the ERA, 42 U.S.C. 5851; the statutory amendments affect only ERA whistleblower complaints. The amendments to the ERA apply to whistleblower claims filed on or after August 8, 2005, the date of the enactment of Section 629 of the Energy Policy Act of 2005. The changes to the regulations also affect the six environmental whistleblower statutes because the same procedures apply to each of the statutes covered in Part 24. The regulatory changes recognize the importance of consistency in the procedures governing the whistleblower statutes administered by OSHA. II. Public Participation Submission of Comments and Access to Docket You may submit comments and additional materials
(1)electronically at *http://www.regulations.gov,* which is the Federal eRulemaking Portal;
(2)by facsimile (FAX); or
(3)by hard copy. All submissions must identify the Agency name and the OSHA docket number for this rulemaking (Docket No. OSHA-2007-0028). You may supplement electronic submissions by uploading document attachments and files electronically. If, instead, you wish to mail additional materials in reference to an electronic or fax submission, you must submit three copies to the OSHA Docket Office (see ADDRESSES section). The additional materials must clearly identify your electronic submissions by name, date, and docket number so OSHA can attach them to your submissions. Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of submissions. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office at
(202)693-2350 (TTY
(877)889-5627). Submissions are posted without change at *http://www.regulations.gov.* Therefore, OSHA cautions commenters about submitting personal information such as social security numbers and birth dates. Although all submissions are listed in the *http://www.regulations.gov* index, some information (e.g., copyrighted material) is not publicly available to read or download through *http://www.regulations.gov.* All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the *http://www.regulations.gov* Web site to submit comments, requests for hearings and attachments, and to access the docket is available at the Web site's User Tips link. Contact the OSHA Docket Office for information about materials not available through the Web site and for assistance in using the internet to locate docket submissions. Electronic copies of this **Federal Register** document are available at *http://www.regulations.gov.* This document, as well as news releases and other relevant information, also are available at OSHA's Web page at *http://www.osha.gov.* III. Summary of Statutory Changes to ERA Whistleblower Provisions Section 629 of Public Law 109-58 (119 Stat. 785) amended Section 211 of the ERA, 42 U.S.C. 5851 by making the changes described below. Revised Definition of “Employer” Section 211 of the ERA defined a covered “employer” to include: licensees of the Nuclear Regulatory Commission (“Commission”); applicants for such licenses, and their contractors and subcontractors; contractors and subcontractors of the Department of Energy, except those involved in naval nuclear propulsion work under Executive Order 12344; licensees of an agreement State under Section 274 of the Atomic Energy Act of 1954; applicants for such licenses, and their contractors and subcontractors. The August 2005 amendments revised the definition of “employer” to extend coverage to employees of contractors and subcontractors of the Commission; the Commission; and the Department of Energy. De Novo Review The August 2005 amendments added a provision for de novo review by a United States District Court in the event that the Secretary has not issued a final decision within one year after the filing of a complaint, and there is no showing that the delay is due to the bad faith of the complainant. IV. Summary and Discussion of Regulatory Provisions The regulatory provisions in this part have been revised in the interest of consistency to conform to the regulations implementing the employee protection provisions of the following statutes that are administered and enforced by the Secretary of Labor: Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”), codified at 29 CFR part 1979; the Sarbanes-Oxley Act of 2002 (“SOX”), codified at 29 CFR part 1980; and the Pipeline Safety Improvement Act of 2002 (“PSIA”), codified at 29 CFR 1981. The section numbers of this regulation also have been changed to correspond with the numbering under the regulations implementing AIR21, SOX, and PSIA. Although these regulations are intended to conform to those implementing AIR21, SOX, and PSIA, they make one change in terminology; they refer to actions brought under the employee protection provisions of these statutes as actions alleging “retaliation” rather than “discrimination.” This change in terminology, which is not intended to have substantive effect, reflects that claims brought under these employee protection provisions are prototypical retaliation claims. A retaliation claim is a specific type of discrimination claim that focuses on actions taken as a result of an employee's protected activity rather than as a result of an employee's characteristics (i.e., race, gender, or religion). The burdens of proving a retaliation claim are the same as those of a standard discrimination claim. *See Essex* v. *United Parcel Service, Inc.* , 111 F.3d 1304, 1308 (7th Cir. 1997). Section 24.100 Purpose and Scope This section (formerly § 24.1) describes the purpose of the regulations implementing the employee protection provisions of seven statutes enforced by the Secretary of Labor and provides an overview of the procedures covered by the regulations. The section has been revised to refer to the Federal Water Pollution Control Act, instead of the Clean Water Act. They are synonymous, but the Office of Administrative Law Judges and the Administrative Review Board generally use Federal Water Pollution Control Act, and we do so here for the sake of consistency. In addition, the section has been renumbered to conform to the numbering system for regulations that implement AIR21, SOX, and the PSIA. Thus, for example, former § 24.1 becomes current § 24.100. Section 24.101 Definitions This new section includes general definitions applicable to the employee protection provisions of the seven statutes listed in § 24.100(a). This section does not include program-specific definitions, which may be found in the statutes. Section 24.102 Obligations and Prohibited Acts This section (formerly § 24.2) describes the whistleblower activity that is protected under the statutes covered by this Part and the type of conduct that is prohibited in response to any protected activity. The language generally has been revised to conform to the language in the regulations that implement the AIR21, SOX, and PSIA whistleblower provisions. The changes are not intended to be substantive. References to the statutes listed in 24.100(a) have deleted the adjective “Federal” as unnecessary. Paragraph
(e)has been moved from former Sec. 24.9. We note that the ARB interprets the phrase “deliberate violations” for the purpose of denying protection to an employee as including an element of willfulness. *See Fields* v. *United States Department of Labor Administrative Review Board,* 173 F.3d 811, 814 (11th Cir. 1999) (petitioners knowingly conducted unauthorized and potentially dangerous experiments). Section 24.103 Filing of Retaliation Complaint This section (formerly § 24.3) has been revised to be consistent with the regulatory procedures implementing the whistleblower provisions of the AIR21, SOX, and PSIA. Thus, the section heading has been changed from “Complaint” to “Filing of Retaliation Complaint.” Also, paragraph
(c)has been changed to paragraph
(b)and the heading has been changed from “Form of Complaint” to “Nature of filing;” paragraph
(d)has been changed to paragraph (c); and paragraph
(b)has been changed to paragraph
(d)and the language has been changed to conform with that appearing in the AIR21, SOX, and PSIA regulations. Finally, paragraph
(e)“Relationship to section 11(c) complaints” has been added to explain the policy of the Secretary regarding the relationship between complaints filed under the statutes listed in Sec. 24.100(a) and a complaint under Section 11(c) of the Occupational Safety and Health Act. Section 24.104 Investigation This section (formerly § 24.4) has been revised so that its language will conform more closely to the language of the regulations implementing AIR21, SOX, and PSIA. Additionally, former paragraph
(b)of § 24.5 has been revised and moved to this section, and former paragraph
(d)of § 24.4 has been revised and moved to § 24.105, where it more appropriately appears under “Issuance of findings and orders.” This rule sets forth two different standards of causation—“motivating” factor and “contributing” factor—depending on the whistleblower statute under which a complaint is filed. When investigating or adjudicating whistleblower complaints under the six environmental whistleblower statutes, the Department of Labor relies on the traditional standards derived from Title VII and other discrimination law as set forth under *Mt. Healthy City School District Board of Education* v. *Doyle,* 429 U.S. 274 (1977); *Texas Dep't of Community Affairs* v. *Burdine,* 450 U.S. 248 (1981); and *McDonnell Douglas Corp.* v. *Green,* 411 U.S. 792 (1973). *See Dartey* v. *Zack Co. of Chicago,* No. 82-ERA-2, 1983 WL 189787, at *3-*4 (Sec'y of Labor Apr. 25, 1983 (discussing *Burdine,* 450 U.S. at 254-255)). Under these standards, a complainant seeking to prove retaliation must first establish a prima facie case that protected activity was a motivating factor in the adverse action, which creates a presumption of retaliation. *See, e.g., St. Mary's Honor Ctr.* v. *Hicks,* 509 U.S. 502 (1993). Once a complainant establishes a prima facie case, the employer has the burden of producing a legitimate, nonretaliatory explanation for its actions. If the employer presents such evidence, the presumption in favor of the complainant disappears, and the complainant must establish by a preponderance of the evidence that the employer's explanation was a pretext, that is, that the real reason for the adverse action was retaliation. A prima facie case, together with proof that the employer's explanation is pretext, permits (but does not require) a trier of fact to find retaliation. *See Reeves* v. *Sanderson Plumbing Products, Inc.,* 530 U.S. 133, 147-148 (2000); *St. Mary's Honor Center,* 509 U.S. at 519 (“It is not enough * * * to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.”); *Dartey* v. *Zack, supra.* Thus, under these principles, an employee must prove by a preponderance of the evidence that retaliation was a “motivating factor” for the adverse employment action. The Secretary can conclude from the evidence that the employer's reason for the retaliation was a pretext and rule for the employee, or that the employer was not motivated in whole or in part by protected activity and rule for the employer, or that an employer acted out of mixed motives. See *Dartey* v. *Zack,* 1983 WL 189787, at *4. If the Secretary concludes that the employer acted out of mixed motives, the employer can escape liability by proving, by a preponderance of the evidence, that it would have reached the same decision even in the absence of protected activity. Id. (discussing *Mt. Healthy,* 429 U.S. at 287). Paragraph
(b)of this section, which sets forth procedures that apply only in ERA cases, applies the ERA's statutory burdens of proof. Since the 1992 amendments to the ERA, its whistleblower provisions, in contrast to the other whistleblower provisions listed under Sec. 24.100(a), have contained specific statutory standards for the dismissal and adjudication of complaints and for the resolution of mixed motive or dual motive cases. See 42 U.S.C. 5851(b)(3)(A) through (b)(3)(D); Public Law 102-486, section 2902, 106 Stat. at 3123-3124. The ERA requires that a complainant make an initial prima facie showing that protected activity was “a contributing factor” in the unfavorable personnel action alleged in the complaint, i.e., that whistleblowing activity, alone or in combination with other factors, affected in some way the outcome of the employer's personnel decision. 42 U.S.C. 5851(b)(3)(A). If the complainant does not make the prima facie showing, the investigation must be discontinued and the complaint dismissed. See *Trimmer* v. *United States Dep't of Labor,* 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the distinct burden-shifting framework of the 1992 ERA amendments served a “gatekeeping function” that “stemmed frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer “demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action” in the absence of the protected activity. 42 U.S.C. 5851(b)(3)(B). Thus, under the ERA, the Secretary must dismiss the complaint and not investigate (or cease investigating) if either:
(1)The complainant fails to meet the prima facie showing that protected activity was a contributing factor in the unfavorable personnel action; or
(2)the employer rebuts that showing by clear and convincing evidence that it would have taken the same unfavorable personnel action absent the protected activity. Assuming that an investigation proceeds beyond the gatekeeping phase, the ERA provides statutory burdens of proof that require an employee to prove that the alleged protected activity was a “contributing factor” to the alleged adverse action. 42 U.S.C. 5851(b)(3)(C). If the employee proves that the alleged protected activity was a contributing factor to the adverse action, the employer, to escape liability, must prove by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. A contributing factor is “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” *Marano* v. *Dep't of Justice,* 2 F.3d 1137, 1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)); *cf. Trimmer,* 174 F.3d at 1101 (the 1992 amendments aimed, in part, “to make it easier for [ERA] whistleblowers to prevail in their discrimination suits”)). In proving that protected activity was a contributing factor in the adverse action, “a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,” because a complainant alternatively can prevail by showing that the respondent's reason, while true, is only one of the reasons for its conduct, and that another reason was complainant's protected activity. See *Klopfenstein* v. *PCC Flow Techs. Holdings, Inc.,* No. 04-149, 2006 WL 1516650, *13 (ARB May 31, 2006) (discussing contributing factor test under SOX) (citing *Rachid* v. *Jack in the Box, Inc.,* 376 F.3d 305, 312 (5th Cir. 2004). The ERA statutory burdens of proof do not address the evidentiary standard that applies to a complainant's proof that protected activity was a contributing factor in an adverse action. The Secretary therefore adheres to traditional Title VII discrimination law for that determination, i.e., the complainant must prove by a “preponderance of the evidence” that his protected activity contributed to his termination; otherwise, the burden never shifts to the employer to establish its “clear and convincing evidence” mixed-motive defense. See, e.g., *Dysert* v. *United States Secretary of Labor,* 105 F.3d 607, 609 (11th Cir. 1997) (upholding Department's interpretation of 42 U.S.C. 5851(b)(3)(C), as requiring an employee to prove by a preponderance of the evidence that protected activity was a contributing factor in an adverse action); *see also Trimmer,* 174 F.3d at 1102 (“[o]nly if the complainant meets his burden [of proving by a preponderance of the evidence that he engaged in protected activity that was a contributing factor in an unfavorable employment decision] does the burden then shift to the employer to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.”); *Stone & Webster Engineering Corp.* v. *Herman,* 115 F.3d 1568, 1572 (11th Cir. 1997) (under section 5851, an employee must first persuade the Secretary that protected activity was a contributing factor in an adverse action and then, if the employee succeeds, the employer must prove by clear and convincing evidence that it would have taken the same action in the absence of protected activity). Under traditional Title VII burden shifting principles applicable to the six environmental whistleblower statutes, if the Secretary concludes that the employer acted for both prohibited and legitimate reasons (i.e., a “mixed motive” case), the employer can escape liability by proving, by a preponderance of the evidence, that it would have reached the same decision even in the absence of the protected conduct. See *Dartey* v. *Zack,* 1983 WL 189787, at *4 (discussing Mt. Healthy, 429 U.S. at 287). However, the 1992 ERA amendments altered the employer's burden in a “mixed motive” case; under the ERA, once the Secretary concludes that the employer acted for both prohibited and legitimate reasons, the employer can escape liability only by proving by clear and convincing evidence that it would have reached the same decision even in the absence of the protected activity. 42 U.S.C. 5851(b)(3)(D). The “clear and convincing evidence” standard is a higher burden of proof for employers than the former “preponderance of the evidence” standard. See 138 Cong. Rec. 32,081, 32,082 (1992). Section 24.105 Issuance of Findings and Orders The procedures set forth in this section formerly appeared under a paragraph of § 24.4, the Investigations section. This new section was created for purposes of clarification and consistency with the regulations implementing the AIR21, SOX, and PSIA whistleblower provisions. The former regulations provided that the Assistant Secretary would issue a “Notice of Determination” at the conclusion of the investigation, or upon dismissal of a complaint. These regulations no longer use the term “Notice of Determination.” Instead, the regulations refer to the issuance of findings and orders, the nomenclature used in the regulations implementing AIR21, SOX, and PSIA. This change in nomenclature is not intended to be substantive. The 30-day timeframe for completion of the investigation has been retained because it is a statutory requirement under the majority of the whistleblower statutes covered by this part (the Solid Waste Disposal Act, the Federal Water Pollution Control Act, and the Comprehensive Environmental Response, Compensation and Liability Act have no timeframe). The current regulations provide a 5-business-day timeframe for filing objections to the findings. These new regulations have been changed to provide that if no objections to the Assistant Secretary's findings and order are filed within 30 days of their receipt, the findings and order of the Assistant Secretary will become the final order of the Secretary. Thus, the timeframe for objecting to the findings and/or order and for requesting a hearing has been extended from 5 business days to 30 days. The Secretary is aware that, since the ERA, the Clean Air Act (“CAA”), the Safe Drinking Water Act (“SDWA”), and the Toxic Substances Control Act (“TSCA”) provide that the Secretary should issue a final decision within 90 days of the filing of the complaint, allowing the parties 30 days in which to object to the Assistant Secretary's findings and any order issued may have an impact on the Department's meeting the 90-day timeframe. Although the ERA amendments in 2005 did not change the 90-day timeframe, the Secretary believes that in amending the ERA in 2005, Congress recognized that it appropriately could take up to one year to complete the investigatory and adjudicative processing of a whistleblower complaint (i.e., issue a final decision of the Secretary) under these environmental statutes. Accordingly, the Secretary believes that allowing 30 days for a party to object to the Assistant Secretary's findings and request a hearing is warranted. Not only does the extension make the regulations more consistent with those implementing AIR21, SOX, and PSIA, it also offers the parties a more reasonable timeframe in which to consider whether to appeal the Assistant Secretary's findings. Subpart B—Litigation Section 24.106 Objections to the Findings and Order and Request for a Hearing Formerly, the procedures for requesting a hearing before an administrative law judge (“ALJ”) were set forth under § 24.6. As indicated above, to be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, 800 K Street, NW., Washington, DC 20001 within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or e-mail communication is considered the date of the filing. The filing of objections is also considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections to the other parties of record, as well as the OSHA official who issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, N 2716, 200 Constitution Ave., NW., Washington, DC 20210, the failure to serve copies of the objections to the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. *See Shirani* v. *Calvert Cliffs Nuclear Power Plant, Inc.,* No. 04-101, 2005 WL 2865915, *7 (ARB Oct. 31, 2005). Section 24.107 Hearings This section has been revised to conform to the regulations implementing the whistleblower provisions under AIR21, SOX, and PSIA. It adopts the rules of practice of the Office of Administrative Law Judges at 29 CFR Part 18, Subpart A. In order to assist in obtaining full development of the facts in whistleblower proceedings, formal rules of evidence do not apply. The section specifically provides for consolidation of hearings if both the complainant and respondent object to the findings and/or order of the Assistant Secretary. Otherwise, this section no longer addresses procedural issues, e.g., place of hearing, right to counsel, procedures, evidence and record of hearing, oral arguments and briefs, and dismissal for cause, because the Office of Administrative Law Judges has adopted its own rules of practice that cover these matters. In order for hearings to be conducted as expeditiously as possible, and particularly in light of the unique provision in the ERA allowing complainants to seek a de novo hearing in federal court if the Secretary has not issued a final decision within one year of the filing of the complaint, this section provides that the ALJ has broad authority to limit discovery. For example, an ALJ may limit the number of interrogatories, requests for production of documents, or depositions allowed. An ALJ also may exercise discretion to limit discovery unless the complainant agrees to delay filing a complaint in federal court for some definite period of time beyond the one-year point. If a complainant seeks excessive or burdensome discovery under the ALJ's rules and procedures at part 18 of Title 29, or fails to adhere to an agreement to delay filing a complaint in federal court, a district court considering a request for de novo review might conclude that such conduct resulted in a delay due to the claimant's bad faith. Former paragraphs
(f)and
(g)of this section have been moved to section 24.108. Section 24.108 Role of Federal Agencies This new section was added to conform these regulations to those implementing AIR21, SOX, and PSIA. As noted above, the substance of this section formerly was set forth under paragraphs
(f)and
(g)of § 24.6, the section covering hearings. No substantive changes are intended. Under the ERA and the environmental whistleblower statutes, OSHA does not ordinarily appear as a party in the proceeding. The Secretary has found that in most whistleblower cases, parties have been ably represented and the public interest has not required the Department's participation. Nevertheless, the Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or in the Administrative Review Board proceeding. Although we anticipate that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, large numbers of employees, alleged violations which appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The Environmental Protection Agency, the Nuclear Regulatory Commission, and the Department of Energy, at those agencies' discretion, also may participate as amicus curiae at any time in the proceedings. Section 24.109 Decision and Order of the Administrative Law Judge This section sets forth the content of the decision and order of the ALJ, and includes the standard for finding a violation under the environmental statutes and the ERA. The section further provides that the Assistant Secretary's determination to dismiss the complaint without an investigation or without a complete investigation pursuant to § 24.104 is not subject to review. Thus, paragraph
(c)of section 24.109 clarifies that the Assistant Secretary's determinations on whether to proceed with an investigation under the ERA and whether to make particular investigative findings under any of the statutes subject to this Part are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. A full discussion of the burdens of proof used by the Department of Labor to resolve whistleblower cases under this part is set forth above in the discussion of § 24.104. This section also has been revised to eliminate the requirement under the ERA for the ALJ to issue a preliminary order of reinstatement separate from the findings. The section clarifies that when an ALJ's decision finds that the complaint has merit and orders relief, the order will be effective immediately upon its receipt by the respondent, except for that part of the order awarding compensatory damages. Congress intended that whistleblowers under the ERA be reinstated and provided additional interim relief based upon the ALJ's order even while the decision is on review with the Administrative Review Board. The previous regulations have caused confusing delays to the complainant's right to immediate reinstatement. *See, e.g., McNeill* v. *Crane Nuclear, Inc.,* No. 02-002, 2002 WL 31932543, *1-*2 (Adm. Rev. Bd. Apr. 24, 2006). The Secretary intends that, by eliminating any requirement that the ALJ “shall also issue a preliminary order providing all of the relief” specified in the recommended order before an interim order becomes effective, confusion will be avoided and congressional intent to have complainants promptly reinstated based upon a meritorious ALJ decision will be better effectuated. Furthermore, the ALJ's order will be effective immediately whether or not the ALJ designates the decision and/or order as recommended. As the Administrative Review Board recently recognized, every decision of an ALJ is recommended until it becomes the final decision of the Secretary. *Welch* v. *Cardinal Bankshares Corp.,* No. 06-062, 2006 WL 861374, * 3 n. 13 (Adm. Rev. Bd. Mar. 31, 2006) (“The APA authorizes ALJs to issue recommended decisions. See 5 U.S.C. 554(d) (`The employee [i.e. ALJ] who presides at the reception of evidence pursuant to section 556 of this title shall make the *recommended decision* or initial decision required by section 557 of this title.* * *' (emphasis added); 5 U.S.C. 557(c) (`Before a *recommended,* initial, or tentative decision, or a decision on agency review of the decision of subordinate employees * * *. All decisions, including initial, *recommended,* and tentative decisions, are a part of the record. * * *') (emphasis added).”). The substance of the rest of this section was formerly found in section 24.7. The requirement that the ALJ issue a decision within 20 days after the conclusion of the hearing has been eliminated because procedures for issuing decisions, including their timeliness, is addressed by the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges at 29 CFR 18.57. Section 24.110 Decision and Orders of the Administrative Review Board The decision of the ALJ is the final decision of the Secretary if no timely petition for review is filed with the Administrative Review Board. Upon the issuance of the ALJ's decision, the parties have 10 business days within which to petition the Board for review of that decision, or it becomes the final decision of the Secretary and is not subject to judicial review. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The appeal provisions in this part have been revised, consistent with the whistleblower provisions of AIR21, SOX and PSIA, to provide that an appeal to the Board is no longer a matter of right but is accepted at the discretion of the Board. Congress intended these whistleblower actions to be expedited and this change may assist in furthering that goal. To facilitate review, the parties must specifically identify the findings and conclusions to which they take exception, or the exceptions ordinarily will be deemed waived by the parties. The Board has 30 days to decide whether to grant the petition for review. If the Board does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. The ERA, CAA, SDWA, and TSCA contain a 90-day timeframe for issuing final agency decisions. Notwithstanding this short timeframe, the Secretary believes that it is appropriate to give the Board 30 days in which to decide whether to grant review; as stated above, the Secretary believes that in amending the ERA in August 2005, Congress recognized that the Department appropriately could take up to one year to complete the investigatory and adjudicative processing of a whistleblower complaint under these statutes. If a timely petition for review is filed with the Board, any relief ordered by the ALJ, except for that ordered under the ERA, is inoperative while the matter is pending before the Board. The relief ordered by the ALJ under the ERA is effective immediately except for that portion awarding compensatory damages. This section further provides that, when the Board accepts a petition for review, its factual determinations will be reviewed under the substantial evidence standard. This standard also is applied to Board review of ALJ decisions under the whistleblower provisions of AIR21, SOX, and PSIA. This section also provides that in the exceptional case, the Board may grant a motion to stay an ALJ's order of relief under the ERA, which otherwise will be effective, while review is conducted by the Board. The Secretary believes that a stay of an ALJ's order of relief under the ERA only would be appropriate where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, and a balancing of possible harms to the parties and the public favors a stay. Subpart C—Miscellaneous Provisions Section 24.111 Withdrawal of Complaints, Objections, and Findings; Settlement This section provides for procedures and time periods for withdrawal of complaints, the withdrawal of findings by the Assistant Secretary, and the withdrawal of objections to findings. It also provides for approval of settlements at the investigative and adjudicative stages of the case. The regulations reflect that settlement agreements under the statutory provisions of the ERA, CAA, SDWA, and TSCA must be reviewed and approved by the Secretary to ensure that they are just and reasonable and in the public interest. *See Beliveau* v. *United States Dep't of Labor,* 170 F.3d 83, 86 (1st Cir. 1999); *Macktal* v. *Secretary of Labor,* 923 F.2d 1150, 1154 (5th Cir. 1991). Although it has been OSHA's practice to review settlements for approval under all the environmental whistleblower statutes, it is required by statute only under the ones noted above. *See Bertacchi* v. *City of Columbus-Division of Sewerage & Drainage,* ARB Case No. 05-155 (April 13, 2006). Notwithstanding this statutory distinction, the Department encourages the parties to submit all settlements for review and approval, even those arising under the CERCLA, SWDA, and FWPCA. We note that a settlement that has not been reviewed and approved by the Secretary will not be considered a final order enforceable under section 24.113. Section 24.112 Judicial Review This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the Administrative Review Board to submit the record of proceedings to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. Paragraph
(d)reflects that original jurisdiction for judicial review of a decision issued under the Comprehensive Environmental Response, Compensation and Liability Act is with the district courts rather than the appellate courts. See 42 U.S.C. 9610(b) and 9613(b). The paragraph also reflects, however, that when an agency decision is based on other statutes that provide for direct review in the court of appeals, principles of judicial economy and consistency justify review of the entire proceeding in the court of appeals. *See Ruud* v. *United States Dep't of Labor,* 347 F.3d 1086, 1090 (9th Cir. 2003) (“[T]he court of appeals should entertain a petition to review an agency decision made pursuant to the agency's authority under two or more statutes, at least one of which provides for direct review in the court of appeals, where the petition involves a common factual background and raises a common legal question. Consolidated review of such a petition avoids inconsistency and conflicts between the district and appellate courts while ensuring the timely and efficient resolution of administrative cases.”); *see also Shell Oil Co.* v. *F.E.R.C.,* 47 F.3d 1186, 1195 (D.C. Cir. 1995) (“[W]hen an agency decision has two distinct bases, one of which provides for exclusive jurisdiction in the court of appeals, the entire decision is reviewable exclusively in the appellate court.”) (citations and internal question marks omitted). Section 24.113 Judicial Enforcement This section describes the Secretary's power under several of the statutes listed in Sec. 24.100(a) to obtain judicial enforcement of orders and the terms of a settlement agreement. It also provides for enforcement of orders of the Secretary by the person on whose behalf the order was issued under the ERA and the CAA. Section 24.114 District Court Jurisdiction of Retaliation Complaints Under the Energy Reorganization Act This section sets forth the ERA provision allowing complainants to bring an action in district court for de novo review if there has been no final decision of the Secretary within one year of the filing of the complaint and there is no delay due to the complainant's bad faith. It provides that complainants will give notice 15 days in advance of their intent to file a complaint in district court. This provision authorizing a federal court complaint is similar to one under the whistleblower provisions of SOX, but is otherwise unique among the whistleblower statutes administered by the Secretary. This statutory scheme creates the possibility that a complainant will have litigated a claim before the agency, will receive a decision from an ALJ, and will then file a complaint in district court while the case is pending review by the Board. The Act might even be interpreted to allow a complainant to bring an action in federal court after receiving a final decision from the Board, if that decision were issued more than one year after the filing of the complaint. The Secretary believes that it would be a waste of the resources of the parties, the Department, and the courts for complainants to pursue duplicative litigation. The Secretary notes that the courts have recognized that, when a party has had a full and fair opportunity to litigate a claim, an adversary should be protected from the expense and vexation of multiple lawsuits and that the public interest is served by preserving judicial resources by prohibiting the same parties making the same claims. *See Montana* v. *United States,* 440 U.S. 147, 153 (1979). When an administrative agency acts in a judicial capacity and resolves disputed issues of fact properly before it, which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply the principles of issue preclusion (collateral estoppel) or claim preclusion (res judicata) on the basis of that administrative decision. *See University of Tennessee* v. *Elliott,* 478 U.S. 788, 799
(1986)(citing *United States* v. *Utah Construction and Mining Co.,* 384 U.S. 394, 422 (1966)). Therefore, the Secretary anticipates that federal courts will apply such principles if a complainant brings a new action in federal court following extensive litigation before the Department that has resulted in a decision by an ALJ or the Secretary. Where an administrative hearing has been completed and a matter is pending before an ALJ or the Board for a decision, a federal court also might treat a complaint as a petition for mandamus and order the Department to issue a decision under appropriate time frames. Section 24.115 Special Circumstances; Waiver of Rules This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the Board may, upon application and notice to the parties, waive any rule as justice or the administration of the statutes listed in § 24.100(a) requires. APPENDIX A—Your Rights Under the ERA The notice that employers are required to post under section 211(i) of the ERA has been revised to reflect the 2005 amendments. Specifically, the notice now reflects that the definition of “employer” has been expanded and that the employee has a right to file a complaint in district Court if the Secretary has not issued a final decision within one year of the filing of the complaint and the delay is not due to the bad faith of the employee. As noted above, we also have substituted the term “retaliation” for “discrimination.” V. Paperwork Reduction Act This rule contains a reporting provision (filing a retaliation complaint, § 24.103) which was previously reviewed and approved for use by the Office of Management and Budget (“OMB”) under 29 CFR 24.3 and assigned OMB control number 1218-0236 under the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). VI. Administrative Procedure Act The notice and comment rulemaking procedures of Section 553 of the Administrative Procedure Act (“APA”) do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice[.]” 5 U.S.C. 553(b)(A). This is a rule of agency procedure and practice within the meaning of Section 553(b)(A) of the APA; the agency does not have legislative rulemaking authority under the applicable statutes. Therefore publication in the **Federal Register** of a notice of proposed rulemaking and request for comments is not required. Although this rule is not subject to the notice and comment procedures of the APA, we are providing persons interested in this interim final rule 60 days to submit comments. In so doing, we are following the agency's practice when it recently promulgated rules for the handling of whistleblower complaints under SOX, AIR21, and PSIA. Specifically, those rules, procedural in nature like this rule, were published as interim final rules; however, persons were given 60 days in which to submit comments. The Department carefully reviewed those comments and then issued its final rules. Similarly, in this instance, a final rule will be published after the agency receives and carefully reviews the public's comments. Furthermore, because this rule is procedural rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in the **Federal Register** is inapplicable. The Assistant Secretary also finds good cause to provide an immediate effective date for this rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases. VII. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small Business Regulatory Enforcement Fairness Act of 1996; Executive Order 13132 The Department has concluded that this rule is not a “significant regulatory action” within the meaning of Executive Order 12866 because it is not likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no regulatory impact analysis has been prepared. VIII. Regulatory Flexibility Analysis The Department has determined that the regulation will not have a significant economic impact on a substantial number of small entities. The regulation primarily implements procedures necessitated by statutory amendments enacted by Congress. Additionally, the regulatory revisions are necessary for the sake of consistency with the regulatory provisions governing procedures under the other whistleblower statutes administered by the Secretary. Furthermore, no certification to this effect is required and no regulatory flexibility analysis is required because no proposed rule has been issued. *Document Preparation.* This document was prepared under the direction of the Assistant Secretary, Occupational Safety and Health Administration, U.S. Department of Labor. List of Subjects in 29 CFR Part 24 Administrative practice and procedure, Employment, Environmental Protection, Investigations, Reporting and recordkeeping requirements, Whistleblowing. Signed in Washington, DC, this 2nd day of August, 2007. Edwin G. Foulke, Jr., Assistant Secretary for Occupational Safety and Health. Accordingly, for the reasons set out in the preamble part 24 of title 29 of the Code of Federal Regulations is revised to read as follows: PART 24—PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER FEDERAL EMPLOYEE PROTECTION STATUTES Subpart A—Complaints, Investigations, Issuance of Findings Sec. 24.100 Purpose and scope. 24.101 Definitions. 24.102 Obligations and prohibited acts. 24.103 Filing of retaliation complaint. 24.104 Investigation. 24.105 Issuance of findings and orders. Subpart B—Litigation 24.106 Objections to the findings and order and request for a hearing. 24.107 Hearings. 24.108 Role of Federal agencies. 24.109 Decision and orders of the administrative law judge. 24.110 Decision and orders of the Administrative Review Board. Subpart C—Miscellaneous Provisions 24.111 Withdrawal of complaints, objections, and findings; settlement. 24.112 Judicial review. 24.113 Judicial enforcement. 24.114 District court jurisdiction of retaliation complaints under the Energy Reorganization Act. 24.115 Special circumstances; waiver of rules. Appendix A to Part 24—Your Rights Under the Energy Reorganization Act. Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 42 U.S.C. 300j-9(i), 5851, 6971, 7622, 9610. Subpart A—Complaints, Investigations, Issuance of Findings § 24.100 Purpose and scope.
(a)This part implements procedures under the employee protection provisions for which the Secretary of Labor has been given responsibility pursuant to the following federal statutes: Safe Drinking Water Act, 42 U.S.C. 300j-9(i); Federal Water Pollution Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C. 2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 U.S.C. 7622; Energy Reorganization Act of 1974, 42 U.S.C. 5851; and Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610.
(b)This part establishes procedures pursuant to the federal statutory provisions listed in paragraph
(a)of this section for the expeditious handling of retaliation complaints made by employees, or by persons acting on their behalf. These rules, together with those rules codified at 29 CFR part 18, set forth the procedures for submission of complaints under the federal statutory provisions listed in paragraph
(a)of this section, investigations, issuance of findings, objections to findings, litigation before administrative law judges, issuance of decisions and orders, post-hearing administrative review, and withdrawals and settlements. § 24.101 Definitions. *Assistant Secretary* means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under any of the statutes listed in § 24.100(a). *Complainant* means the employee who filed a complaint under any of the statutes listed in § 24.100(a) or on whose behalf a complaint was filed. *OSHA* means the Occupational Safety and Health Administration of the United States Department of Labor. *Respondent* means the employer named in the complaint, who is alleged to have violated any of the statutes listed in § 24.100(a). *Secretary* means the Secretary of Labor or persons to whom authority under any of the statutes listed in § 24.100(a) has been delegated. § 24.102 Obligations and prohibited acts.
(a)No employer subject to the provisions of any of the statutes listed in § 24.100(a), or to the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 2011 *et seq.* , may discharge or otherwise retaliate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, engaged in any of the activities specified in this section.
(b)It is a violation for any employer to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner retaliate against any employee because the employee has:
(1)Commenced or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the statutes listed in § 24.100(a) or a proceeding for the administration or enforcement of any requirement imposed under such statute;
(2)Testified or is about to testify in any such proceeding; or
(3)Assisted or participated, or is about to assist or participate, in any manner in such a proceeding or in any other action to carry out the purposes of such statute.
(c)Under the Energy Reorganization Act, and by interpretation of the Secretary under any of the other statutes listed in § 24.100(a), it is a violation for any employer to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner retaliate against any employee because the employee has:
(1)Notified the employer of an alleged violation of such statute or the AEA of 1954;
(2)Refused to engage in any practice made unlawful by such statute or the AEA of 1954, if the employee has identified the alleged illegality to the employer; or
(3)Testified or is about to testify before Congress or at any federal or state proceeding regarding any provision (or proposed provision) of such statute or the AEA of 1954. (d)(1) Every employer subject to the Energy Reorganization Act of 1974, as amended, shall prominently post and keep posted in any place of employment to which the employee protection provisions of the Act apply, a fully legible copy of the notice prepared by OSHA, printed as appendix A to this part, or a notice approved by the Assistant Secretary that contains substantially the same provisions and explains the employee protection provisions of the Act and the regulations in this part. Copies of the notice prepared by OSHA may be obtained from the Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, Washington, DC 20210, from local OSHA offices, or from OSHA's Web site at *http://www.osha.gov.*
(2)Where the notice required by paragraph (d)(1) of this section has not been posted, the requirement in § 24.103(d)(2) that a complaint be filed with the Assistant Secretary within 180 days of an alleged violation will be inoperative, unless the respondent establishes that the complainant had knowledge of the material provisions of the notice. If it is established that the notice was posted at the employee's place of employment after the alleged retaliatory action occurred or that the complainant later obtained knowledge of the provisions of the notice, the 180 days will ordinarily run from whichever of those dates is relevant.
(e)This part shall have no application to any employee who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of any of the statutes listed in § 24.100(a) or the AEA of 1954. § 24.103 Filing of retaliation complaint.
(a)*Who may file.* An employee who believes that he or she has been retaliated against by an employer in violation of any of the statutes listed in § 24.100(a) may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation.
(b)*Nature of Filing.* No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.
(c)*Place of Filing.* The complaint should be filed with the OSHA Area Director responsible for enforcement activities in the geographical area where the employee resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: *http://www.osha.gov.*
(d)*Time for Filing.*
(1)Except as provided in paragraph (d)(2) of this section, within 30 days after an alleged violation of any of the statutes listed in § 24.100(a) occurs (i.e., when the retaliatory decision has been both made and communicated to the complainant), an employee who believes that he or she has been retaliated against in violation of any of the statutes listed in § 24.100(a) may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the complaint is filed in person, by hand-delivery, or other means, the complaint is filed upon receipt.
(2)Under the Energy Reorganization Act, within 180 days after an alleged violation of the Act occurs (i.e., when the retaliatory decision has been both made and communicated to the complainant), an employee who believes that he or she has been retaliated against in violation of the Act may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the complaint is filed in person, by hand-delivery, or other means, the complaint is filed upon receipt.
(e)*Relationship to section 11(c) complaints.* A complaint filed under any of the statutes listed in § 24.100(a) alleging facts that would constitute a violation of section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be both a complaint filed under any of the statutes listed in § 24.100(a) and section 11(c). Similarly, a complaint filed under section 11(c) that alleges facts that would constitute a violation of any of the statutes listed in § 24.100(a) will be deemed to be both a complaint filed under any of the statutes listed in § 24.100(a) and section 11(c). Normal procedures and timeliness requirements for investigations under the respective statutes and regulations will be followed. § 24.104 Investigation.
(a)Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint (redacted to protect the identity of any confidential informants). A copy of the notice to the respondent will also be provided to the appropriate office of the federal agency charged with the administration of the general provisions of the statute(s) under which the complaint is filed.
(b)Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph
(a)of this section the respondent may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with the Assistant Secretary to present its position.
(c)Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with 29 CFR part 70.
(d)*Investigation under the six environmental statutes.* In addition to the investigative procedures set forth in § 24.104(a), (b), and (c), this paragraph sets forth the procedures applicable to investigations under the Safe Drinking Water Act; Federal Water Pollution Control Act; Toxic Substances Control Act; Solid Waste Disposal Act; Clean Air Act; and Comprehensive Environmental Response, Compensation and Liability Act.
(1)A complaint of alleged violation will be dismissed unless the complainant has made a prima facie showing that protected activity was a motivating factor in the unfavorable personnel action alleged in the complaint.
(2)The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:
(i)The employee engaged in a protected activity;
(ii)The respondent knew or suspected, actually or constructively, that the employee engaged in the protected activity;
(iii)The employee suffered an unfavorable personnel action; and
(iv)The circumstances were sufficient to raise the inference that the protected activity was a motivating factor in the unfavorable action.
(3)The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a motivating factor in the unfavorable personnel action. The burden may be satisfied, for example, if the complainant shows that the adverse personnel action took place shortly after the protected activity, giving rise to the inference that it was a motivating factor in the adverse action.
(4)The complaint will be dismissed if the respondent demonstrates by a preponderance of the evidence that it would have taken the same unfavorable personnel action in the absence of the complainant's protected activity.
(e)*Investigation under the Energy Reorganization Act.* In addition to the investigative procedures set forth in § 24.104(a), (b), and (c), this paragraph sets forth special procedures applicable only to investigations under the Energy Reorganization Act.
(1)A complaint of alleged violation will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint.
(2)The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:
(i)The employee engaged in a protected activity;
(ii)The respondent knew or suspected, actually or constructively, that the employee engaged in the protected activity;
(iii)The employee suffered an unfavorable personnel action; and
(iv)The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.
(3)For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the unfavorable personnel action. The burden may be satisfied, for example, if the complainant shows that the adverse personnel action took place shortly after the protected activity, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant will be so advised and the investigation will not commence.
(4)Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, an investigation of the complaint will not be conducted or will be discontinued if the respondent, pursuant to the procedures provided in this paragraph, demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the complainant's protected behavior or conduct.
(5)If the respondent fails to make a timely response or fails to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the behavior protected by the Act, the Assistant Secretary will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent. § 24.105 Issuance of findings and orders.
(a)After considering all the relevant information collected during the investigation, the Assistant Secretary will issue, within 30 days of filing of the complaint, written findings as to whether or not there is reasonable cause to believe that the respondent has discriminated against the complainant in violation of any of the statutes listed in § 24.100(a).
(1)If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, he or she shall accompany the findings with an order providing relief to the complainant. The order shall include, where appropriate, a requirement that the respondent abate the violation; reinstate the complainant to his or her former position, together with the compensation (including back pay), terms, conditions and privileges of the complainant's employment; pay compensatory damages; and, under the Toxic Substances Control Act and the Safe Drinking Water Act, pay exemplary damages, where appropriate. Where the respondent establishes that the complainant is a security risk (whether or not the information is obtained after the complainant's discharge), an order of reinstatement would not be appropriate. At the complainant's request the order shall also assess against the respondent the complainant's costs and expenses (including attorney's fees) reasonably incurred in connection with the filing of the complaint.
(2)If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding.
(b)The findings and order will be sent by certified mail, return receipt requested, to all parties of record. The letter accompanying the findings and order will inform the parties of their right to file objections and to request a hearing and provide the address of the Chief Administrative Law Judge. The Assistant Secretary will file a copy of the original complaint and a copy of the findings and order with the Chief Administrative Law Judge, U.S. Department of Labor.
(c)The findings and order will be effective 30 days after receipt by the respondent pursuant to paragraph
(b)of this section, unless an objection and a request for a hearing has been filed as provided at § 24.106. Subpart B—Litigation § 24.106 Objections to the findings and order and request for a hearing.
(a)Any party who desires review, including judicial review, of the findings and order must file any objections and/or a request for a hearing on the record within 30 days of receipt of the findings and order pursuant to paragraph
(b)of § 24.105. The objection and/or request for a hearing must be in writing and state whether the objection is to the findings and/or the order. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, 800 K Street, NW., Washington, DC 20001, and copies of the objections must be mailed at the same time to the other parties of record, the OSHA official who issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, 200 Constitution Ave., NW., N 2716, U.S. Department of Labor, Washington, DC 20210.
(b)If a timely objection is filed, all provisions of the order will be stayed. If no timely objection is filed with respect to either the findings or the order, the findings and order will become the final decision of the Secretary, not subject to judicial review. § 24.107 Hearings.
(a)Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A, 29 CFR part 18.
(b)Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to a judge who will notify the parties, by certified mail, of the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a showing of good cause or otherwise agreed to by the parties. Hearings will be conducted de novo, on the record. Administrative law judges have broad discretion to limit discovery in order to expedite the hearing.
(c)If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated, and a single hearing will be conducted.
(d)Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence available will be applied. The administrative law judge may exclude evidence that is immaterial, irrelevant, or unduly repetitious. § 24.108 Role of Federal agencies. (a)(1) The complainant and the respondent will be parties in every proceeding. At the Assistant Secretary's discretion, he or she may participate as a party or participate as amicus curiae at any time at any stage of the proceedings. This right to participate includes, but is not limited to, the right to petition for review of a decision of an administrative law judge, including a decision approving or rejecting a settlement agreement between the complainant and the respondent.
(2)Copies of pleadings in all cases, whether or not the Assistant Secretary is participating in the proceeding, must be sent to the Assistant Secretary, Occupational Safety and Health Administration, and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC 20210.
(b)The Environmental Protection Agency, the Nuclear Regulatory Commission, and the Department of Energy, if interested in a proceeding, may participate as amicus curiae at any time in the proceedings, at the agency's discretion. At the request of the interested federal agency, copies of all pleadings in a case must be sent to the federal agency, whether or not the agency is participating in the proceeding. § 24.109 Decision and orders of the administrative law judge.
(a)The decision of the administrative law judge will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph
(c)of this section, as appropriate. In cases arising under the ERA, a determination that a violation has occurred may only be made if the complainant has demonstrated by a preponderance of the evidence that the protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint. In cases arising under the other six statutes listed in § 24.100(a), a determination that a violation has occurred may only be made if the complainant has demonstrated by a preponderance of the evidence that the protected activity was a motivating factor in the unfavorable personnel action alleged in the complaint.
(b)In cases under the Energy Reorganization Act, if the complainant has demonstrated by a preponderance of the evidence that the protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of any protected activity. In cases under the other six statutes listed in § 24.100(a), even if the complainant has demonstrated by a preponderance of the evidence that the protected activity was a motivating factor in the unfavorable personnel action alleged in the complaint, relief may not be ordered if the respondent demonstrates by a preponderance of the evidence that it would have taken the same unfavorable personnel action in the absence of any protected activity.
(c)Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 24.104(d) nor the Assistant Secretary's determination to proceed with an investigation is subject to review by the administrative law judge, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the administrative law judge will hear the case on the merits. (d)(1) If the administrative law judge concludes that the respondent has violated the law, the order shall direct the respondent to take appropriate affirmative action to abate the violation, including reinstatement of the complainant to that person's former position, together with the compensation (including back pay), terms, conditions, and privileges of that employment, and compensatory damages. In cases arising under the Safe Drinking Water Act or the Toxic Substances Control Act, exemplary damages may also be awarded when appropriate. At the request of the complainant, the administrative law judge shall assess against the respondent, all costs and expenses (including attorney fees) reasonably incurred.
(2)In cases brought under the Energy Reorganization Act, when an administrative law judge issues a decision that the complaint has merit and orders the relief prescribed in paragraph (d)(1) of this section, the relief ordered, with the exception of compensatory damages, shall be effective immediately upon receipt, whether or not a petition for review is filed with the Administrative Review Board.
(3)If the administrative law judge determines that the respondent has not violated the law, an order will be issued denying the complaint.
(e)The decision will be served upon all parties to the proceeding. Any administrative law judge's decision issued under any of the statutes listed in § 24.100(a) will be effective 10 business days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board. An administrative law judge's order issued under the Energy Reorganization Act will be effective immediately upon receipt, except for that portion of the order awarding any compensatory damages. § 24.110 Decision and orders of the Administrative Review Board.
(a)Any party desiring to seek review, including judicial review, of a decision of the administrative law judge must file a written petition for review with the Administrative Review Board (“the Board”), U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210, which has been delegated the authority to act for the Secretary and issue final decisions under this part. The decision of the administrative law judge will become the final order of the Secretary unless, pursuant to this section, a timely petition for review is filed with the Board. The petition for review must specifically identify the findings, conclusions or orders to which exception is taken. Any exception not specifically urged ordinarily will be deemed to have been waived by the parties. A petition must be filed within 10 business days of the date of the decision of the administrative law judge. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the Board. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC 20210.
(b)If a timely petition for review is filed pursuant to paragraph
(a)of this section, and the Board, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review, the decision of the administrative law judge will be inoperative unless and until the Board issues an order adopting the decision, except that an order by an administrative law judge issued under the Energy Reorganization Act, other than that portion of the order awarding compensatory damages, will be effective while review is conducted by the Board, unless the Board grants a motion by the respondent to stay the order based on exceptional circumstances. The Board will specify the terms under which any briefs are to be filed. The Board will review the factual determinations of the administrative law judge under the substantial evidence standard. If a timely petition for review is *not* filed, or the Board denies review, the decision of the administrative law judge will become the final order of the Secretary and is not subject to judicial review.
(c)The final decision of the Board will be issued within 90 days of the filing of the complaint. The decision will be served upon all parties and the Chief Administrative Law Judge by mail to the last known address. The final decision will also be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC 20210, even if the Assistant Secretary is not a party.
(d)If the Board concludes that the respondent has violated the law, the final order will order the respondent to take appropriate affirmative action to abate the violation, including reinstatement of the complainant to that person's former position, together with the compensation (including back pay), terms, conditions, and privileges of employment, and compensatory damages. In cases arising under the Safe Drinking Water Act or the Toxic Substances Control Act, exemplary damages may also be awarded when appropriate. At the request of the complainant, the Board will assess against the respondent all costs and expenses (including attorney's fees) reasonably incurred.
(e)If the Board determines that the respondent has not violated the law, an order will be issued denying the complaint. Subpart C—Miscellaneous Provisions § 24.111 Withdrawal of complaints, objections, and findings; settlement.
(a)At any time prior to the filing of objections to the findings and/or order, a complainant may withdraw his or her complaint under any of the statutes listed in § 24.100(a) by filing a written withdrawal with the Assistant Secretary. The Assistant Secretary will then determine whether to approve the withdrawal. The Assistant Secretary will notify the respondent of the approval of any withdrawal. If the complaint is withdrawn because of settlement under the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, or the Toxic Substances Control Act, the settlement must be submitted for approval in accordance with paragraph
(d)of this section. Parties to settlements under the Federal Water Pollution Control Act, the Solid Waste Disposal Act, and the Comprehensive Environmental Response, Compensation and Liability Act are encouraged to submit their settlements for approval.
(b)The Assistant Secretary may withdraw his or her findings and/or order, at any time before the expiration of the 30-day objection period described in § 24.106, provided that no objection has yet been filed, and substitute new findings and/or a new order. The date of the receipt of the substituted findings and/or order will begin a new 30-day objection period.
(c)At any time before the findings or order become final, a party may withdraw his or her objections to the findings or order by filing a written withdrawal with the administrative law judge, or, if the case is on review, with the Board. The judge or the Board, as the case may be, will determine whether to approve the withdrawal. If the objections are withdrawn because of settlement under the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, or the Toxic Substances Control Act, the settlement must be submitted for approval in accordance with paragraph
(d)of this section. (d)(1) *Investigative settlements under the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, and the Toxic Substances Control Act.* At any time after the filing of a complaint, and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if the Assistant Secretary, the complainant and the respondent agree to a settlement. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates his or her consent and achieves the consent of all three parties.
(2)*Adjudicatory settlements under the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, and the Toxic Substances Control Act.* At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the administrative law judge if the case is before the judge, or by the Board if a timely petition for review has been filed with the Board. A copy of the settlement must be filed with the administrative law judge or the Board, as the case may be.
(e)Any settlement approved by the Assistant Secretary, the administrative law judge, or the Board will constitute the final order of the Secretary and may be enforced pursuant to § 24.113. § 24.112 Judicial review.
(a)Except as provided under paragraphs (b), (c), and
(d)of this section, within 60 days after the issuance by the Board of a final order of the Secretary under § 24.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. A final order of the Board is not subject to judicial review in any criminal or other civil proceeding.
(b)Under the Federal Water Pollution Control Act, within 120 days after the issuance by the Board of a final order of the Secretary under § 24.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation.
(c)Under the Solid Waste Disposal Act, within 90 days after the issuance by the Board of a final order of the Secretary under § 24.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation.
(d)Under the Comprehensive Environmental Response, Compensation and Liability Act, after the issuance by the Board of a final order of the Secretary under § 24.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States district court in which the violation allegedly occurred. For purposes of judicial economy and consistency, when a final order of the Secretary issued by the Board under the Comprehensive Environmental Response, Compensation and Liability Act also is issued under any other statute listed in § 24.100(a), the adversely affected or aggrieved person may file a petition for review of the entire order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. The time for filing a petition for review of an order issued under the Comprehensive Environmental Response, Compensation and Liability Act and any other statute listed in § 24.100(a) is determined by the time period applicable under the other statute(s).
(e)If a timely petition for review is filed, the record of a case, including the record of proceedings before the administrative law judge, will be transmitted by the Board to the appropriate court pursuant to the local rules of the court. § 24.113 Judicial enforcement. Whenever any person has failed to comply with an order by an administrative law judge issued under the Energy Reorganization Act, with the exception of any award of compensatory damages, or with a final order of the Secretary issued by the Board, including final orders approving settlement agreements as provided under § 24.111(d), the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. Whenever any person has failed to comply with an order by an administrative law judge issued under the Energy Reorganization Act, with the exception of any award of compensatory damages, or with a final order of the Secretary issued by the Board under either the Energy Reorganization Act or the Clean Air Act, the person on whose behalf the order was issued also may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. § 24.114 District court jurisdiction of retaliation complaints under the Energy Reorganization Act.
(a)If the Board has not issued a final decision within one year of the filing of a complaint under the Energy Reorganization Act, and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy.
(b)Fifteen days in advance of filing a complaint in federal court, a complainant must file with the Assistant Secretary, the administrative law judge, or the Board, depending upon where the proceeding is pending, a notice of his or her intention to file such complaint. The notice must be served on all parties to the proceeding. A copy of the notice must be served on the Regional Administrator, the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC 20210. § 24.115 Special circumstances; waiver of rules. In special circumstances not contemplated by the provisions of this part, or for good cause shown, the administrative law judge or the Board on review may, upon application, after three days notice to all parties, waive any rule or issue any orders that justice or the administration of any of the statutes listed in § 24.100(a) requires. Appendix A to Part 24—Your Rights Under the Energy Reorganization Act BILLING CODE 4510-26-P ER10AU07.000 [FR Doc. E7-15539 Filed 8-9-07; 8:45 am] BILLING CODE 4510-26-C DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2560 RIN 1210-AB23 Amendments to Civil Penalties Under ERISA Section 502(c)(7) AGENCY: Employee Benefits Security Administration, Labor. ACTION: Direct final rule. SUMMARY: This document contains a direct final rule amending the civil penalty regulation under section 502(c)(7) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) to reflect recent amendments to this section in the Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780 (PPA). These amendments authorize the Secretary of Labor to assess civil penalties not to exceed $100 per day for each violation of section 101(m) of ERISA. Section 101(m) of ERISA requires plan administrators of individual account plans to notify participants and beneficiaries of their right to sell the company stock in their accounts and reinvest the proceeds into other investments available under the plan. The notice must also inform the recipients of the importance of diversifying the investments in their accounts. DATES: The amendments made by this rule are effective October 9, 2007, without further action or notice, unless significant adverse comment is received by September 10, 2007. If significant adverse comment is received, the Employee Benefits Security Administration will publish a timely withdrawal of the rule in the **Federal Register** . ADDRESSES: To facilitate the receipt and processing of comments, the Department encourages interested persons to submit their comments electronically by e-mail to *e-ORI@dol.gov* , or by using the Federal eRulemaking portal at *http://www.regulations.gov* (follow instructions for submission of comments). Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting comments on paper should send or deliver their comments (at least three copies) to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attn: 502(c)(7) Civil Penalty. Comments received will be posted without change, including any personal information provided, to *http://www.regulations.gov* and *http://www.dol.gov/ebsa* , and also available for public inspection at the Public Disclosure Room, Employee Benefits Security Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Stephanie L. Ward, Office of Regulations and Interpretations, Employee Benefits Security Administration,
(202)693-8500. This is not a toll-free number. SUPPLEMENTARY INFORMATION: A. Background Pension Protection Act of 2006 On August 17, 2006, the Pension Protection Act
(PPA)amended the Internal Revenue Code (the Code) and ERISA to provide diversification rights to plan participants and beneficiaries with respect to investments in company stock in their accounts. Section 401(a)(35) of the Code, as added by section 901 of the PPA, provides that, to remain qualified under section 401(a) of the Code, a defined contribution plan (other than certain employee stock ownership plans) must provide applicable individuals with the right to divest employer securities in their accounts and reinvest those amounts in certain diversified investments. Section 901 of the PPA also added a parallel provision, section 204(j), to ERISA. 1 1 Under section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713), the Secretary of the Treasury has interpretive jurisdiction over section 204(j) of ERISA. Section 507(a) of the PPA amended section 101 of ERISA by adding subsection
(m)which requires a plan administrator to provide applicable individuals with a notice of diversification rights under section 204(j) of ERISA. Plan administrators must provide this notice not later than 30 days before the first date on which the individuals are eligible to exercise their rights. The notice must set forth the diversification rights provided under section 401(a)(35) of the Code (and parallel section 204(j) of ERISA) and describe the importance of diversifying the investment of retirement account assets. Section 101(m) of ERISA is effective for plan years beginning after December 31, 2006. Section 507(b) of the PPA amended section 502(c)(7) of ERISA to provide that the Secretary of Labor may assess a civil penalty of up to $100 a day from the date of the plan administrator's failure or refusal to provide notice to an applicable individual in accordance with ERISA section 101(m). I.R.S. Notice 2006-107 Section 507(c) of the PPA directed the Secretary of the Treasury to create a model notice of diversification rights that would satisfy the requirements of section 101(m) of ERISA. 2 On December 18, 2006, the IRS published Notice 2006-107, which provides transitional guidance on section 401(a)(35) of the Code (and parallel section 204(j) of ERISA). Notice 2006-107 describes the notice requirement of section 101(m) of ERISA and provides a model notice for plans to comply with this requirement. 3 The Notice states that, although some plans will be required to comply with section 401(a)(35) as early as January 1, 2007, the Department has advised Treasury and the IRS that section 101(m) of ERISA does not require plans to furnish notices before January 1, 2007. The Notice states that, accordingly, plans with plan years beginning on or after January 1, 2007, but before February 1, 2007, are not required to furnish the model notice (or a notice otherwise meeting the requirements of section 101(m) of ERISA) earlier than January 1, 2007. Notice 2006-107 also states that the Department encourages plans to furnish notice on the earliest possible date. 4 The IRS Notice and model are available at *http://www.irs.gov/irb/2006-51_IRB/ar09.html* . 2 Section 101(m) of ERISA is under the jurisdiction of the Department of Labor. 3 I.R.S. Notice 2006-107, 2006-51 I.R.B. 1114. 4 For additional information, see the Employee Benefits Security Administration Field Assistance Bulletin No. 2006-03 (December 20, 2006) at *http://www.dol.gov/ebsa/regs/fabmain.html* . B. Overview of Amendments to § 2560.502c-7 The direct final rule being published today as part of this notice makes conforming changes to 29 CFR 2560.502c-7, reflecting changes required by ERISA section 502(c)(7), as amended by the PPA. The conforming amendments do not change the existing penalty assessment procedures or the related procedures for contesting penalty assessments. Rather, the changes merely extend the Secretary's existing procedures for assessing civil penalties for violations of section 101(i) of ERISA, relating to blackout notices, to include violations of the notice requirements in section 101(m) of ERISA, relating to diversification rights. These conforming changes primarily add references to section 101(m) next to existing references to section 101(i) throughout the regulation. For an overview of the provisions of § 2560.502c-7, see the preamble to that regulation published on January 24, 2003, at 68 FR 3729. C. Good Cause Finding That Proposed Rulemaking Unnecessary Rulemaking under section 553 of the Administrative Procedure Act (5 U.S.C. 551 *et seq.* ), ordinarily involves publication of a notice of proposed rulemaking in the **Federal Register** and the public is given an opportunity to comment on the proposed rule. However, an agency may issue a rule without prior notice and comment procedures if it determines for good cause that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest for such rule, and incorporates a statement of the finding with the underlying reasons in the final rule issued. For the reasons mentioned in section B of this preamble, the Department finds that publishing a proposed rule and seeking public comment is unnecessary. Notwithstanding the foregoing, in the “Proposed Rules” section of today's **Federal Register** , the Department is publishing a separate document that will serve as a notice of proposal to amend part 2560 as described in this direct final rule. If the Department receives significant adverse comment during the comment period it will publish, in a timely manner, a document in the **Federal Register** withdrawing this direct final rule. The Department will then address public comments in a subsequent final rule based on the proposed rule. The Department will not institute a second comment period on this rule. Any parties interested in commenting must do so during this comment period. D. Regulatory Impact Analysis Executive Order 12866 Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget. Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule:
(1)Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”);
(2)creating serious inconsistency or otherwise interfering with an action taken or planned by another agency;
(3)materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. On the basis of these criteria, it has been determined that this regulatory action is significant under section 3(f)(4) of the Executive Order. Accordingly, OMB has reviewed this regulation. The principal benefit of the statutory penalty provision and the direct final rule is greater adherence to the new disclosure requirement. The implementation of orderly and consistent processes for the assessment of penalties and the review of such assessments also will be beneficial. The civil penalty provisions of the statute and this direct final rule impose no mandatory requirements or costs, except where a plan administrator has failed to provide the notice as required. Therefore, the Department finds that the benefits of the direct final rule justify its costs. The Department invites comments on this assessment and its conclusion. Paperwork Reduction Act This direct final rule regarding the Secretary's authority to assess civil penalties under ERISA section 502(c)(7) is not subject to the requirements of the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3501 *et seq.* ) because it does not contain a collection of information as defined in 44 U.S.C. 3502(3). Information otherwise provided to the Secretary in connection with the administrative and procedural requirements of this direct final rule is excepted from coverage by PRA 95 pursuant to 44 U.S.C. 3518(c)(1)(B), and related regulations at 5 CFR 1320.4(a)(2) and (c). These provisions generally except information provided as a result of an agency's civil or administrative action, investigation, or audit. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) (RFA), imposes certain requirements with respect to federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 *et seq.* ) and that are likely to have a significant economic impact on a substantial number of small entities. Because these amendments are being published as a direct final rule, without prior notice and comment, the RFA does not apply. Moreover, compliance with the procedures in this rule is not likely to impose a significant additional cost on a substantial number of small employers or plans. Accordingly, the Department believes that no regulatory flexibility analysis would be required in any case under the RFA. Congressional Review Act The direct final rule being issued here is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 *et seq.* ) and will be transmitted to Congress and the Comptroller General for review. The rule is not a “major rule” as that term is defined in 5 U.S.C. 804, because it does not result in
(1)an annual effect on the economy of $100 million or more;
(2)a major increase in costs or prices for consumers, individual industries, or federal, State, or local government agencies, or geographic regions; or
(3)significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Unfunded Mandates Reform Act For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the direct final rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, or impose an annual burden exceeding $100 million on the private sector. Federalism Statement Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires Federal agencies to adhere to specific criteria in the process of their formulation and implementation of policies 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 final rule does not have federalism implications because it has no substantial direct effect 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in the final rule do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the national government and the States. List of Subjects in 29 CFR Part 2560 Employee benefit plans, Employee Retirement Income Security Act, Law enforcement, Pensions. For the reasons set forth in the preamble, the Department amends 29 CFR part 2560 as follows: PART 2560—RULES AND REGULATIONS FOR ADMINISTRATION AND ENFORCEMENT 1. The authority citation for part 2560 is revised to read as follows: Authority: 29 U.S.C. 1132, 1135, and Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2560.503-1 also issued under 29 U.S.C. 1133. Sec. 2560.502(c)(7) also issued under sec. 507(b) of Pub. L. 109-280, 120 Stat. 780. 2. Amend § 2560.502c-7 by revising paragraphs (a), (b),
(d)and (j)(1) to read as follows: § 2560.502c-7 Civil penalties under section 502(c)(7).
(a)*In general.*
(1)Pursuant to the authority granted the Secretary under section 502(c)(7) of the Employee Retirement Income Security Act of 1974, as amended (the Act), the administrator (within the meaning of section 3(16)(A) of the Act) of an individual account plan (within the meaning of section 101(i)(8) of the Act and § 2520.101-3(d)(2) of this chapter), who fails or refuses to provide notice of a blackout period to affected participants and beneficiaries in accordance with section 101(i) of the Act and § 2520.101-3 of this chapter, or the administrator (within the meaning of section 3(16)(A) of the Act) of an applicable individual account plan (within the meaning of section 101(m) of the Act), who fails or refuses to provide notice of diversification rights to applicable individuals in accordance with section 101(m) of the Act, shall be liable for civil penalties assessed by the Secretary under section 502(c)(7) of the Act.
(2)For purposes of this section, a failure or refusal to provide a notice of blackout period shall mean a failure or refusal, in whole or in part, to provide notice of a blackout period to an affected plan participant or beneficiary at the time and in the manner prescribed by section 101(i) of the Act and § 2520.101-3 of this chapter, and a failure or refusal to provide a notice of diversification rights shall mean a failure or refusal, in whole or in part, to provide notice of diversification rights to an applicable individual at the time and in the manner prescribed by section 101(m) of the Act.
(b)*Amount assessed.*
(1)The amount assessed under section 502(c)(7) of the Act for each separate violation shall be determined by the Department of Labor, taking into consideration the degree and/or willfulness of the failure or refusal to provide a notice of blackout period or notice of diversification rights. However, the amount assessed for each violation under section 502(c)(7) of the Act shall not exceed $100 a day (or such other maximum amount as may be established by regulation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended), computed from, in the case of a notice of blackout period under section 101(i) of the Act, the date of the administrator's failure or refusal to provide a notice of blackout period up to and including the date that is the final day of the blackout period for which the notice was required, or in the case of a notice of diversification rights under section 101(m) of the Act, computed from the date that is 30 days before the first date on which rights are exercisable under section 204(j) of the Act up to the date such a notice is furnished.
(2)For purposes of calculating the amount to be assessed under this section, a failure or refusal to provide a notice of blackout period or a notice of diversification rights with respect to any single participant or beneficiary shall be treated as a separate violation under section 101(i) of the Act and § 2520.101-3 of this chapter or section 101(m) of the Act.
(d)*Reconsideration or waiver of penalty to be assessed.* The Department may determine that all or part of the penalty amount in the notice of intent to assess a penalty shall not be assessed on a showing that the administrator complied with the applicable requirements of section 101(i) or section 101(m) of the Act or on a showing by the administrator of mitigating circumstances regarding the degree or willfulness of the noncompliance.
(j)*Liability.*
(1)If more than one person is responsible as administrator for the failure to provide a notice of blackout period under section 101(i) of the Act and its implementing regulations (§ 2520.101-3 of this chapter), or the failure to provide a notice of diversification rights under section 101(m) of the Act, all such persons shall be jointly and severally liable for such failure. Signed at Washington, DC, this 3rd day of August, 2007. Bradford P. Campbell, Acting Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. E7-15567 Filed 8-9-07; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 334 United States Navy Restricted Area, Key West Harbor, at U.S. Naval Base, Key West, Florida AGENCY: U.S. Army Corps of Engineers, DoD. ACTION: Final rule. SUMMARY: The U.S. Army Corps of Engineers (Corps) is amending the existing regulations for a restricted area at Naval Air Station Key West (NASKW). Naval Air Station Key West maintains ammunition magazines on Fleming Island that have explosive safety quality-distance
(ESQD)requirements in place to ensure reasonable safety from serious injury should there be a magazine fire or explosion. The previous restricted area regulations did not adequately cover the ESQD requirements. This amendment to the existing regulation is necessary to protect the public from potentially hazardous conditions that may exist as a result of military use of the area. DATES: *Effective Date:* September 10, 2007. ADDRESSES: U.S. Army Corps of Engineers, ATTN: CECW-CO, 441 G Street, NW., Washington, DC 20314-1000. FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922 or Mr. Jon M. Griffin, U.S. Army Corps of Engineers, Jacksonville District, Regulatory Division, at 904-232-1680. SUPPLEMENTARY INFORMATION: Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3), the Corps is amending the regulations in 33 CFR part 334 by modifying the restricted area at § 334.610. The modification to the existing restricted area is described below. The proposed rule was published in the February 21, 2007, issue of the **Federal Register** (72 FR 7841). One comment was received in response to the proposed rule. That commenter had no objection to the proposed amendment. The Ammunition and Hazardous Materials Handling Review Board has cited NASKW for allowing anchored pleasure craft to be within the inhabited building distance of the Fleming Island Magazine area. The amendment to the regulations will allow the Commanding Office NASKW to restrict passage of persons, watercraft, and vessels to ensure that ESQD requirements related to the Fleming Island Magazine area are met. Procedural Requirements a. *Review Under Executive Order 12866.* This rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply. b. *Review Under the Regulatory Flexibility Act.* This rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). The Corps has concluded that modifying this restricted area would have practically no economic impact on the public, and would create no anticipated navigational hazard or interference with existing waterway traffic. Accordingly, it is certified that this rule will not have a significant economic impact on small entities. c. *Review Under the National Environmental Policy Act.* The Corps has concluded, based on the minor nature of this action, that the amendment to the restricted area will not be a major Federal action having significant impact on the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment has been prepared and it is available by contacting the district office listed at the end of the FOR FURTHER INFORMATION CONTACT section, above. d. *Unfunded Mandates Act.* This rule does not impose an enforceable duty among the private sector and, therefore, is not a Federal private sector mandate and is not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Reform Act (Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1501 *et seq.* ). We have also found under Section 203 of the Act that small governments will not be significantly or uniquely affected by this rule. List of Subjects in 33 CFR Part 334 Danger zones, Navigation (water), Restricted areas, Waterways. For the reasons set out in the preamble, the Corps amends 33 CFR part 334 as follows: PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS 1. The authority citation for 33 CFR Part 334 continues to read as follows: Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3). 2. Amend § 334.610 by revising paragraph (a)(4) to read as follows: § 334.610 Key West Harbor, at U.S. Naval Base, Key West, Fla.; naval restricted areas and danger zone.
(a)*The areas.* * * *
(4)Beginning at the last point designated in area 3 at Latitude 24°34.0550′ N., Longitude 81°47.9166′ W.; proceed in a northwesterly direction to a point at Latitude 24°34.2725′ N., Longitude 81°48.1304′ W.; thence proceed in a northeasterly direction to a point at Latitude 24°34.3562′ N., Longitude 81°48.0192′ W.; thence proceed in a northwesterly direction to a point at Latitude 24°34.4506′ N., Longitude 81°48.1444′ W.; thence proceed in a northwesterly direction to a point at Latitude 24°34.5619′ N., Longitude 81°48.1873′ W.; thence proceed in a northeasterly direction to a point at Latitude 24°34.9084′ N., Longitude 81°48.0945′ W.; thence proceed in a northeasterly direction to a point at Latitude 24°34.9809′ N., Longitude 81°47.9400′ W.; proceed in a general northerly direction maintaining a distance of 100 yards from the shoreline of Fleming Key, continue around Fleming Key to a point easterly of the southeast corner of Fleming Key at Latitude 24°34.0133′ N., Longitude 81°47.6250′ W.; thence easterly to Latitude 24°33.9600′ N., Longitude 81°47.3333′ W.; thence southerly to a point on the shore at Latitude 24°33.9117′ N., Longitude 81°47.3450′ W. The Department of the Navy plans to install buoys along that portion of the restricted area boundary which marks the outer edge of the explosive hazard safety distance requirements. Dated: August 6, 2007. Lawrence A. Lang, Acting Chief, Operations Directorate of Civil Works. [FR Doc. E7-15694 Filed 8-9-07; 8:45 am] BILLING CODE 3710-92-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R04-RCRA-2007-0016; FRL-8451-8] Florida: Final Authorization of State Hazardous Waste Management Program Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Immediate final rule. SUMMARY: Florida has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA is granting Final authorization to Florida. EPA is authorizing the changes by this immediate final rule. EPA did not make a proposal prior to the immediate final rule because we believe this action is not controversial and do not expect comments that oppose it. We have explained the reasons for this authorization in the preamble of this immediate final rule. Unless we get written comments which oppose this authorization during the comment period, this immediate final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we receive comments that oppose this action, we will withdraw this immediate final rule and it will not take effect. We will respond to public comments in a later final rule based on this immediate final rule. You may not have another opportunity for comment. DATES: This Final authorization is effective on October 9, 2007 unless EPA receives adverse written comment on or before September 10, 2007. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the **Federal Register** and inform the public that this authorization will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04- RCRA-2007-0016 by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: johnson.otis@epa.gov.* • *Fax:*
(404)562-9964 (prior to faxing, please notify the EPA contact listed below). • *Mail:* Send written comments to Otis Johnson, Permit and State Programs Section, RCRA Programs/Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, The Sam Nunn Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303. • *Hand Delivery:* Otis Johnson, Permit and State Programs Section, RCRA Programs/Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, The Sam Nunn Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303. FOR FURTHER INFORMATION CONTACT: Otis Johnson, Permit and State Programs Section, RCRA Programs/Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, The Sam Nunn Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303; telephone number:
(404)562-8481; fax number:
(404)562-9964; e-mail address: *johnson.otis@epa.gov.* SUPPLEMENTARY INFORMATION: A. Why Are Revisions to State Programs Necessary? States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations
(CFR)parts 124, 260 through 266, 268, 270, 273 and 279. B. What Decisions Have We Made in This Rule? We conclude that Florida's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Florida Final authorization to operate its hazardous waste program with the changes described in the authorization application. Florida has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Florida, including issuing permits, until the State is granted authorization to do so. C. What Is the Effect of This Authorization Decision? The effect of this decision is that a facility in Florida subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Florida has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: • Do inspections, and require monitoring, tests, analyses or reports • Enforce RCRA requirements and suspend or revoke permits • Take enforcement actions regardless of whether the State has taken its own actions This action does not impose additional requirements on the regulated community because the regulations for which Florida is being authorized by today's action are already effective, and are not changed by today's action. D. Why Wasn't There a Proposed Rule Before This Rule? EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's **Federal Register** , we are publishing a separate document that proposes to authorize the State program changes. E. What Happens if EPA Receives Comments That Oppose This Action? If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the **Federal Register** before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The **Federal Register** withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn. F. What Has Florida Previously Been Authorized for? Florida initially received Final authorization on January 29, 1985, effective February 12, 1985 (50 FR 3908), to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on December 1, 1987, effective March 3, 1988 (52 FR 45634), December 16, 1988, effective January 3, 1989 (53 FR 50529), December 14, 1990, effective February 12, 1991 (55 FR 51416), February 5, 1992, effective April 6, 1992 (57 FR 4371), February 7, 1992, effective April 7, 1992 (57 FR 4738), May 20, 1992, effective July 20, 1992 (57 FR 21351), November 9, 1993, effective January 10, 1994 (58 FR 59367), July 11, 1994, effective September 9, 1994 (59 FR 35266), August 16, 1994, effective October 17, 1994 (59 FR 41979), October 26, 1994, effective December 27, 1994 (59 FR 53753), April 1, 1997, effective June 2, 1997 (62 FR 15407), August 23, 2001, effective October 22, 2001 (66 FR 44307), August 20, 2002, effective October 21, 2002 (67 FR 53886 and 67 FR 53889), and October 14, 2004, effective December 13, 2004. The authorized Florida program, through RCRA Cluster IV, was incorporated by reference into the CFR on January 20, 1998, effective March 23, 1998 (63 FR 2896). Florida received corrective action authority on September 18, 2000, effective November 18, 2000 (65 FR 56256). G. What Changes Are We Authorizing With This Action? Florida has submitted final complete program revision applications on seeking authorization of their changes in accordance with 40 CFR 271.21. Florida's revision consists of provisions promulgated July 1, 2000 through June 30, 2005, otherwise known as RCRA Clusters XI-XV. Florida Statutes Chapter 403 allows the Florida Department of Environmental Protection to administer the rules governing hazardous waste management in the State. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Florida's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. Therefore, we grant Florida Final authorization for the following program changes: Description of Federal requirement Federal Register Analogous state authority Checklist 188, Hazardous Air Pollutants Standards; technical corrections July 10, 2000, 65 FR 42292-42302; May 14, 2001, 66 FR 24270-24272; July 3, 2001, 66 FR 35087-35107 Rules 62-730.030(1), 62-730.180(4), Florida Administrative Code (F.A.C.). Checklist 189, Chlorinated Aliphatics Listing and LDRs for Newly Identified Wastes November 8, 2000, 65 FR 67068-67133 Rules 62-730.030(1), 62-730.183(1), F.A.C. Checklist 191, Mixed Waste Rule May 16, 2001, 66 FR 27218-27266 Rule 62-730.181(1), F.A.C. Checklist 192 A, Mixture and Derived-From Rules Revisions May 16, 2001, 66 FR 27266-27297 Rule 62-730.030(1), F.A.C. Checklist 192 B, Land Disposal Restrictions Correction May 16, 2001, 66 FR 27266-27297 Rule 62-730.183(1), F.A.C. Checklist 193, Change of Official EPA Mailing Address June 28, 2001, 66 FR 34374-34376 Rule 62-730.021(1)(a), F.A.C. Checklist 194, Mixture and Derived-From Rules Revision II October 3, 2001, 66 FR 50332-50334 Rule 62-730.030(2), F.A.C. Checklist 195, Inorganic Chemical Manufacturing Wastes Identification and Listing November 20, 2001, 66 FR 58258-58300; April 9, 2002, 67 FR 17119-17120 Rules 62-730.030(2), 62-730.183(2), F.A.C. Checklist 196, CAMU Amendments January 22, 2002, 67 FR 2962-3029 Rules 62-730.020(1), 62-730.180(4), F.A.C. Checklist 197, Hazardous Air Pollutant Standards for Combustors: Interim Standards February 13, 2002, 67 FR 6792-6818 Rules 62-730.180(4), 62-730.181(1), 62-730.220(3), F.A.C. Checklist 198, Hazardous Air Pollutant Standards for Combustors: Corrections February 14, 2002, 67 FR 6968-6996 Rule 62-730.181(1), F.A.C. Checklist 199, Vacatur of Mineral Processing Spent Materials Being Reclaimed as Solid Wastes and TCLP Use with MGP Waste March 13, 2002 67 FR 11251-11254 Rule 62-730.030(2), F.A.C. Checklist 200, Zinc Fertilizer Rule July 24, 2002, 67 FR 48393-48415 Rules 62-730.030(1), 62-730.181(1), 62-730.183, F.A.C. Checklist 201, Treatment Variance for Radioactively Contaminated Batteries October 7, 2002, 67 FR 62618-62624 Rule 62-730.183, F.A.C. Checklist 202, Hazardous Air Pollutant Standards for Combustors-Corrections 2 December 19, 2002, 67 FR 77687-77692 Rule 62-730.220(3), F.A.C. Checklist 203, Recycled Used Oil Management Standards: Clarification July 30, 2003, 68 FR 44659-44665 Rules 62-730.030(1), 62-710.210(2), F.A.C. Checklist 204, Performance Track April 22, 2004, 69 FR 21737-21754 as amended on October 25, 2004; 69 FR 62217-62224 Rule 62-730.160(1), F.A.C. Checklist 205, NESHAP: Surface Coating of Automobiles and Light-Duty Trucks April 26, 2004, 69 FR 22601-22661 Rules 62-730.180(1), 62-730.180(2), F.A.C. Checklist 206, Nonwastewaters from Dyes and Pigments February 24, 2005, 70 FR 9138-9180 Rules 62-730.030(1), 62-730.183, F.A.C. Checklist 207, Uniform Hazardous Waste Manifest Rule March 4, 2005, 70 FR 10776-10825 Rules 62-730.020(1), 62-730.030(1), 62-730.160(1), 62-730.170(1), 62-730.180(1), 62-730.180(2), F.A.C. Methods Innovation Rule June 14, 2005, 70 FR 34537-34592 as amended August 1, 2005, 70 FR 44150 Rules 62-730.021, 62-730.030(1), 62-730.180(1), 62-730.180(2), 62-730.181(1), 62-730.183, 62-730.220(1), F.A.C. H. Where Are the Revised State Rules Different From the Federal Rules? Florida did not adopt did not adopt the optional amendments in 270.42(j)(l) in Checklist 188 and 198 for permit modifications at the request of the permittee. Rule 62-730.290(1)(d), F.A.C., states that the Department may require permit modifications for the causes set forth in 40 CFR 270.41 and 270.42. Accordingly, Florida did not adopt the optional amendment in Checklist 198 pertaining to permit modifications at the request of the permittee. I. Who Handles Permits After the Authorization Takes Effect? Florida will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Florida is not yet authorized. J. What Is Codification and Is EPA Codifying Florida's Hazardous Waste Program as Authorized in This Rule? Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart K for this authorization of Florida's program changes until a later date. K. Administrative Requirements The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA Section 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action 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 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 1985, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. 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. Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective October 9, 2007. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of 42 U.S.C. 6912(a), 6926, 6974(b). Dated: July 13, 2007. J.I. Palmer, Jr., Regional Administrator, Region 4. [FR Doc. E7-15670 Filed 8-9-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL MARITIME COMMISSION 46 CFR Part 515 [Docket No. 07-08] RIN 3072-AC32 Optional Method of Filing Form FMC-18, Application for a License as an Ocean Transportation Intermediary August 6, 2007. AGENCY: Federal Maritime Commission. ACTION: Final rule. SUMMARY: The Federal Maritime Commission (“FMC” or “Commission”) amends its regulations relating to the method of filing Form FMC-18, Application for a License as an Ocean Transportation Intermediary (“OTI”), to provide for optional filing of OTI applications through a new electronic filing system. This optional filing system is intended to facilitate more efficient processing and review of applications for licensing. A filing fee of $250 will apply to new applicants for OTI licensing, and $125 for existing licensees who might want to use the optional electronic filing system to update their licensing records or to submit changes in the licensee's organization for which prior Commission approval is required. DATES: Effective September 24, 2007. FOR FURTHER INFORMATION CONTACT: Sandra Kusumoto, Director, Bureau of Certification and Licensing, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573,
(202)523-5787, E-mail: *SKusumoto@fmc.gov.* Amy W. Larson, General Counsel, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573,
(202)523-5740, E-mail: *GeneralCounsel@fmc.gov.* SUPPLEMENTARY INFORMATION: By Notice of Inquiry in Docket No. 01-08, the Commission first solicited comments concerning the impact of the Government Paperwork Elimination Act and the Electronic Signatures in Global and National Commerce Act on all sectors of the U.S. ocean shipping industry. Comments received in response to the Notice were supportive and encouraging of the Commission's efforts to provide expanded electronic filing options for information collections. Responsive to comments filed in reply to that inquiry, the Commission signaled its intent to embark upon an E-government strategy which focuses on automating as many documents and processes (both internal and external) as possible, and facilitating greater access to Commission information, forms and applications. The Commission concluded therein that establishing electronic options for most of its information collection processes was both viable and prudent. Since that time, the Commission has commenced an initiative for publishing electronic copies of Commission decisions; approved procedures by which non-vessel-operating common carriers (“NVOCCs”) may file electronic copies of NVOCC Service Arrangements (“NSAs”); upgraded the SERVCON system for filers of service contracts and NSAs; reorganized and updated the Commission's Web site at *http://www.fmc.gov* to improve transparency and accessibility to information; authorized the filing of agreement minutes and monitoring reports in electronic format, etc. The Commission's Annual Performance Plan envisions the continued use of technological enhancements to improve efficiency and facilitate the exchange of information within the Commission and between the Commission and the shipping industry. Working in conjunction with the Commission's Office of Information Technology, the Bureau of Certification and Licensing (“BCL”) commenced efforts in 2005 to automate the process of filing its application for OTI licensing, Form FMC-18. Under existing 46 CFR 515.12, this application is submitted entirely in paper format, in duplicate. Supporting documentation required by the application process likewise must be filed in paper format. BCL recently completed the initial software development and associated testing to support an automated application filing system. The Commission now proposes to make BCL's automated filing system available as an optional method by which to file Form FMC-18. Use of the automated system will not be required; interested parties may continue to submit Form FMC-18 in paper format and those filings will be received and processed in the same manner as before. As developed by the Office of Information Technology and its contractors, the new automated filing system will facilitate the filing of Form FMC-18 in electronic format. Supporting documentation previously submitted in paper form will be appended electronically as part of the filing process. Validity checks incorporated into the automated filing process will alert the filer to the need to submit missing documentation at time of filing, thereby ensuring a more complete application and facilitating quicker processing of OTI applications by BCL staff. A visually cleaner and more helpful electronic interface also has been implemented to guide and assist the filing applicant in completing the application. The automated OTI filing system may be accessed through the Commission's Web site, *http://www.fmc.gov.* The filing system is password-protected to ensure the security of information being collected and to appropriately restrict external access to data to the applicant and its authorized filing agents. Both applicants for initial OTI licensing and current licensees seeking to amend or add an additional service (i.e., add NVOCC authority to an existing freight forwarder license) to their existing authority/license can make use of the automated filing system on an optional basis. Following implementation of automated filing on a voluntary basis, further automation of licensing-related functions, such as the use of e-signature technology, electronic filing of bonds and electronic payment options for fees, may be addressed by the Commission in future rulemakings. The Commission may publish a rule as final, without being subject to the notice and comment requirements under the Administrative Procedure Act (“APA”), 5 U.S.C. 553, if the rule is interpretive, a general statement of policy, pertains to agency reorganization, or is a rule of practice and procedure. *See* 5 U.S.C. 553(b)(A); *see also Bachow Communications, Inc.* v. *FCC,* 237 F.3d 683, 690 (DC Cir. 2001) (“Like the rules governing the filing of applications, rules permitting (or suspending) amendments are ‘rules of agency organization, procedure, or practice' exempt from the Administrative Procedure Act's notice and comment requirement.”) The DC Circuit has held that the “critical feature” when determining whether a rule is procedural in nature is that “it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.” *James Hurson Assocs., Inc.* v. *Glickman,* 229 F.3d 277, 280 (DC Cir. 2000) (citing *JEM Broad. Co.* v. *FCC,* 22 F.3d 320, 326 (DC Cir. 1994)). The Commission publishes this rule as final, implementing the voluntary electronic filing of Form FMC-18 under 5 U.S.C. 553 (b)(A), because this change is solely procedural in nature. Applicants will have the option to file electronically or to continue utilizing the paper format. If the Commission later determines that electronic filing be made a requirement of all applicants, a notice and comment period would be provided as required under 5 U.S.C. 553. In order to promote the use of the electronic filing option by the public and to facilitate transfer of OTI records from a paper-based format to a more convenient and accessible digital format, the Commission also has decided to assess a lesser filing fee for those using the optional electronic filing method during this initial testing period. A filing fee of $250 will apply to new applicants for OTI licensing, and $125 for existing licensees who might wish to use the optional electronic filing system to update their licensing records or to submit changes in the licensee's organization for which prior Commission approval is required. *See* 46 CFR 515.18. Those using the electronic filing method also will directly assist BCL in its transition to an electronic recordkeeping system, by reducing the need for Commission staff to manually re-key data now residing primarily in paper format. This rule is not a significant regulatory action as defined by Executive Order 12866, Regulatory Planning and Review, 58 FR 51,735 (Sept. 30, 1993) and therefore, is not subject to review by the Office of Information and Regulatory Affairs, in the Office of Management and Budget. In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 *et seq.* , the Federal Maritime Commission has certified to the Chief Counsel for Advocacy, Small Business Administration, that the rule will not have a significant impact on a substantial number of small entities. These changes establish an optional provision for U.S. licensed OTIs and applicants for OTI licensing, which may be used at their discretion. While these businesses qualify as small entities under the guidelines of the Small Business Administration, the rule poses no economic detriment, but rather provides a more cost-effective alternative than would otherwise be available to assist U.S. OTIs in obtaining licenses or in notifying the Commission of changes in the licensee's business structure or operations. The rule contains no additional information collection or recordkeeping requirement. Therefore, the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* do not apply. List of Subjects for 46 CFR Part 515 Classified information, Freedom of Information, Privacy, Sunshine Act. For the reasons set out above, the Commission amends 46 CFR part 515 as follows: PART 515—LICENSING, FINANCIAL RESPONSIBILITY REQUIREMENTS, AND GENERAL DUTIES FOR OCEAN TRANSPORTATION INTERMEDIARIES 1. The authority citation for 46 CFR part 515 continues to read as follows: Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. app. 1702, 1707, 1709, 1710, 1712, 1714, 1716, and 1718; Pub. L. 105-383, 112 Stat. 3411; 21 U.S.C. 862. § 515.12 [Amended] 2. Amend 46 CFR 515.12 to add a new paragraph
(e)as follows:
(e)*Optional method of filing Form FMC-18.* In lieu of completing and filing Form FMC-18 in paper format, applications and amendments thereto may be completed and submitted to the Bureau of Certification and Licensing by using the automated FMC-18 filing system in accordance with the instructions found on the Commission's home page, *http://www.fmc.gov.* A $250 fee for filing a new application and a $125 fee for filing an amended application will be assessed for filers using the automated FMC-18 filing system instead of the fees listed at § 515.5(b)(1), (2). § 515.18 [Amended] 3. Amend 46 CFR 515.18 to add a new paragraph
(f)as follows:
(f)*Optional method of filing Form FMC-18.* In lieu of completing and filing Form FMC-18 in paper format, applications for approval of changes in organization, transfer of license, or changes in the identity or status of the designated qualifying individual required under this section may be completed and submitted to the Bureau of Certification and Licensing by using the automated FMC-18 filing system in accordance with the instructions found on the Commission's home page, *http://www.fmc.gov.* A $250 fee for filing a new application and a $125 fee for filing an amended application will be assessed for filers using the automated FMC-18 filing system instead of the fees listed at § 515.5(b)(1), (2). By the Commission. Bryant L. VanBrakle, Secretary. [FR Doc. E7-15593 Filed 8-9-07; 8:45 am] BILLING CODE 6730-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 12 [EB Docket No. 06-119; WC Docket No. 06-63; FCC 07-139] Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks AGENCY: Federal Communications Commission. ACTION: Final rule; delay of effective date. SUMMARY: In the *Order* , the Federal Communications Commission (Commission) extends the effective date of the recently adopted section 12.2 of the Commission's rules to October 9, 2007. DATES: The effective date of the recently adopted rule 47 CFR 12.2, published at 72 FR 37655, August 10, 2007 is delayed until October, 9, 2007. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Jean Ann Collins, Deputy Chief, Communications Systems Analysis Division, Public Safety and Homeland Security Bureau, Federal Communications Commission at
(202)418-2792. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Order* in EB Docket No. 06-119 and WC Docket No. 06-63, FCC 07-139, adopted and released on August 2, 2007. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at
(202)488-5300, via facsimile at
(202)488-5563, or via e-mail at *FCC@BCPIWEB.COM* . Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by sending an e-mail to *FCC504@fcc.gov* or calling the Consumer and Governmental Affairs Bureau at
(202)418-0530, TTY
(202)418-0432. This document is also available on the Commission's Web site at *http://www.fcc.gov* . Synopsis of the Order 1. In the *Order* , we extend the effective date of the recently adopted section 12.2 of the Commission's rules to October 9, 2007. This rule requires local exchange carriers (LECs), including incumbent LECS and competitive LECs, and commercial mobile radio service
(CMRS)providers to have “an emergency backup power source for all assets that are normally powered from local AC commercial power, including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals.” The rule further states that “LECs and CMRS providers should maintain emergency back-up power for a minimum of 24 hours for assets inside central offices and eight hours for cell sites, remote switches and digital loop carrier system remote terminals that are normally powered from local AC commercial power.” LECs that meet the definition of a Class B company as set forth in section 32.11(b)(2) of the Commission's rules and non-nationwide CMRS providers with no more than 500,000 subscribers are exempt from this rule. Absent an extension, this rule would become effective on August 10, 2007, which is 30 days after publication of the *Katrina Panel Order* in the **Federal Register** . 2. On July 31, 2007, CTIA—the Wireless Association®
(CTIA)filed a “Motion for Administrative Stay” of section 12.2 of the Commission's rules. In particular, CTIA requests an administrative stay, pending further review, of the requirement that CMRS providers have an emergency back-up power source for all assets that are normally powered by local AC commercial power, including a minimum of eight hours of back-up power for cell sites, by August 10, 2007. 3. On the Commission's own motion, the Commission hereby delays the effective date of the back-up power rule adopted in the *Katrina Panel Order* for a period of 60 days from the original effective date of the rule (i.e., the new effective date will be October 9, 2007). This will provide the Commission with additional time to consider the issues raised by CTIA in its Motion for Administrative Stay and to hear from other concerned parties on those issues. 4. Accordingly, *it is ordered* , pursuant to sections 4(i) and
(j)of the Communications Act of 1934, as amended, 47 CFR 154(i) and (j), and sections 1.108 and 1.427 of the Commission's rules, 47 CFR 1.108 and 1.427, that the effective date of section 12.2 of the Commission's rules, 47 CFR 12.2, is delayed for a period of 60 days. The new effective date of this rule will be October 9, 2007. 5. *It is further ordered* that the effective date of the *Order* is the date upon which the *Order* is released by the Commission. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-15702 Filed 8-9-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070709299-7300-01] RIN 0648-AV75 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Haddock Size Limit Change AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; emergency final rule. SUMMARY: NMFS implements this final rule pursuant to its authority to issue emergency measures under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This emergency action implements measures intended to reduce immediately discards of Georges Bank
(GB)and Gulf of Maine
(GOM)haddock to prevent excessive waste and comply with the goals of reducing discards and maintaining the rebuilding programs of the Northeast
(NE)Multispecies Fishery Management Plan (FMP), while helping to achieve optimum yield at the same time. Specifically, this emergency action reduces the commercial minimum haddock size to 18 inches (45 cm) from the current minimum size of 19 inches (48.3 cm). This action is intended to reduce discarding and maintain consistency with the FMP and the Magnuson-Stevens Act. DATES: Effective August 10, 2007, through February 6, 2008. FOR FURTHER INFORMATION CONTACT: Thomas A. Warren, Fishery Policy Analyst,
(978)281-9347, fax
(978)281-9135. SUPPLEMENTARY INFORMATION: Background This final rule implements emergency measures, authorized by section 305(c) of the Magnuson-Stevens Act, intended to immediately reduce excessive discarding of GB and GOM haddock by lowering the commercial minimum fish size to 18 inches (45 cm), from the current minimum size of 19 inches (48.3 cm). The New England Fishery Management Council (Council) voted on June 21, 2007, to recommend that the Secretary of Commerce take action to lower the minimum size of haddock to 17 inches (43.2 cm) for vessels fishing on GB. A written request from the Council to NMFS for such action was dated June 25, 2007. Recent information from the Council and data from observed trips to the Eastern U.S./Canada Area indicate that there have been large amounts of discarding of haddock occurring because only a small fraction of the haddock from an exceptionally large year class being caught on GB has reached the minimum size of 19 inches (48.3 cm). Observer data show a discard-to-kept ratio of over 1 lb (0.45 kg) of haddock discarded to every pound of haddock landed. Cumulative haddock discards from the Eastern U.S./Canada Area from May 1, 2007, through July 4, 2007, are estimated at approximately 700,000 lb (318 mt). The reason for these large amounts of discards is that the very large 2003 year class of haddock, which is the largest since 1963, is growing more slowly than previously anticipated. Recent survey data indicate an average GB haddock size of 16.6 inches (42.2 cm) for fish in the 2003 year class. The average size of the fish in the 2003 year class is anticipated to be 19 inches (48.3 cm) by the summer of 2008, which would make them legal to retain under the existing regulations, so the current discard situation will resolve itself over the long term. However, in the short term, in order to reduce the large amount of discards and associated discard mortality that has been occurring in the haddock fishery, and enable such fish to be landed, a reduction in the haddock minimum size to18 inches (45.7 cm) is warranted. A temporary 18-inch (45-cm) minimum size limit will enable a larger fraction of the haddock catch to be landed, until a greater portion of the haddock population grows and reaches 19 inches (48.3 cm). NMFS is taking emergency action to effect this change. This emergency action differs from the Council's request in two aspects. The Council recommended a minimum size of 17 inches (43.2 cm), and limited the scope of the size reduction to GB. This emergency action reduces the minimum size to 18 inches (45.7 cm) in both the GB and GOM stock areas. Although the discarding situation is principally occurring on GB, and GOM haddock appear to have a higher rate of growth than GB haddock (Northeast Fisheries Science Center, (NEFSC)), this action decreases the minimum size limit for haddock throughout the range of the species to ensure meaningful and effective enforcement of the minimum size. Having differential size limits in the commercial fishery for two stocks of haddock that are landed by the same fishery in the same ports would make it virtually impossible to distinguish between the different size limits for enforcement purposes. Reducing the haddock minimum size from 19 inches (48.3 cm) to 18 inches (45 cm) will more than double the percentage of the GB haddock population available for harvest (from 22 percent to 47 percent in fall 2007; NEFSC). Such a size reduction will also modestly increase the percentage of GOM haddock available (from 57 percent to 61 percent in fall 2007), commensurate with the higher growth rate of haddock in the GOM. The decrease in the size limit for GOM haddock, therefore, should not increase the incentive to target smaller haddock. The recreational minimum size will remain at 19 inches (48.3 cm) because the magnitude of the recreational fishery for GB haddock, and the associated discard issue, is much less than the commercial fishery. Also, it is possible for a recreationally caught haddock that is undersized to be released alive, while it is more difficult to do so with commercially caught fish. Because the recreational fishery is distinct from the commercial fishery, the fact that the associated minimum sizes are different does not undermine enforcement of such restrictions. NMFS policy guidelines for the use of emergency rules (62 FR 44421; August 21, 1997) specify the following three criteria that define what an emergency situation is, and justification for final rulemaking:
(1)The emergency results from recent, unforeseen events or recently discovered circumstances;
(2)the emergency presents serious conservation or management problems in the fishery; and
(3)the emergency can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process. NMFS policy guidelines further provide that emergency action is justified for certain situations where emergency action would prevent significant direct economic loss or to preserve a significant economic opportunity that otherwise might be foregone. Although the relative size of the 2003 year class has been evident since 2004, neither the observed slow growth rate of the year class, nor the large magnitude of the discarding problem were anticipated. These issues have become apparent only recently. Because of the limited selectivity of trawl mesh, it is not possible to effectively target 19-inch (48.3-cm) haddock without catching 18-inch (45-cm) haddock. This limited selectivity, combined with the abnormally slow growth rate of the large 2003 year class, results in the trawl fishery temporarily experiencing an exceptionally high catch of undersized haddock. The inability of fishers to retain the extremely large numbers of haddock less than 19 inches (48.3 cm) being caught presents an immediate management problem. High levels of discards undermine the benefits of rebuilding this stock, and reduce the likelihood of attaining optimum yield because most discarded fish die and therefore never recruit into the fishery. As previously stated, recent observer data show a discard-to-kept ratio of over 1 lb (0.45 kg) of haddock discarded to every pound of haddock landed. That means the fishery is discarding more haddock than it is keeping. Cumulative haddock discards from the Eastern U.S./Canada Area from May 1, 2007, through July 4, 2007, are estimated at approximately 700,000 lb (318 mt). In the context of historic discards, the amount of haddock discarded in the first 2 months of fishing year
(FY)2007 is greater than the amount of haddock discarded during the entirety of FY 2006, FY 2005, or FY 2004. Reducing the haddock minimum size to 18 inches (45 cm) will reduce waste (discard mortality) in the fishery and may increase opportunities for the fishery to achieve optimum yield (OY). A collateral benefit of this action will be prevention of a significant direct economic loss by allowing the landing and sale of fish that would be discarded at sea if the minimum size limit were kept at 19 inches (48.3 cm). To delay this action for the time necessary to implement an amendment or framework action, with the opportunity for prior public comment, would result in continued discarding of large amounts of bycatch, the associated mortality of such discarding, the irretrievable loss of significant economic revenues from the discarded fish, and the further diminishing of the industry's ability to achieve OY. These consequences are inconsistent with National Standards 1, 7, and 9. The immediate benefits to be gained through the reduction of the haddock minimum size limit (e.g., reduced discarding and enhanced opportunities to achieve OY) justify this emergency action in accord with the guidelines outlined. This action is not expected to interfere with any conservation objective of the FMP. Although GB haddock is still considered overfished, overfishing is not occurring. In recent years, less than 50 percent of the annual target Total Allowable Catch for GB haddock has been harvested. Allowing fish to be landed that would otherwise be discarded dead is not expected to increase fishing mortality or delay the rebuilding of the GB haddock stock. An increase in fishing effort is not expected due to the fact that, at current levels of fishing effort, trips under an 18-inch (45-cm) minimum haddock size may be more profitable, because the same amount of fishing effort will yield more legal catch that can be landed and sold. A shift to target smaller fish is not likely because haddock in the 18 to19-inch (45 to 48.3-cm) range are caught together, and there is limited selectivity of the fishing gear. Therefore, there appears to be, in the short term, no incentive or effective way to target 18-inch (45-cm) haddock. NMFS intends to monitor this fishery closely in order to determine whether this action results in significant changes in fishing behavior or substantive increases in fishing effort. If necessary, inseason implementation of management measures through existing Regional Administrator authority could be taken to control catch. Prior to the expiration of this temporary rule, NMFS will evaluate whether an emergency situation still exists, and whether extension or modification of this action is necessary. The NEFSC estimates that the average total length of GB haddock will not be above 19 inches (48.3 cm) until the summer of 2008. Classification NMFS has determined that this rule is necessary to respond to an emergency situation and is consistent with the Magnuson-StevensAct and other applicable law. The Assistant Administrator for Fisheries, NOAA, finds good cause that the reasons justifying promulgation of this rule on an emergency basis also make it impractical and contrary to the public interest to provide additional notice and opportunity for the public to comment, or to delay for 30 days the effective date of this emergency regulation, under the provisions of sections 553(b) and
(d)of the Administrative Procedure Act. As more fully explained above, solicitation of public comment or a delay in effectiveness would result in significant negative consequences inconsistent with Magnuson-Stevens Act and FMP mandates. In particular, the immediate implementation of this action will avoid wasteful discards of haddock, enhance opportunities to achieve OY, reduce costs, and increase revenues of the fishing industry, without jeopardizing any conservation and management objectives of the FMP. Further, waiver of prior public comment is necessary because a substantial portion of the fishing effort in the groundfish fishery occurs in summer and early fall, and to delay implementation of this action would mean that the change in minimum size would occur after the part of the fishing season when it is needed most. This emergency rule has been determined to be not significant for purposes of E.O. 12866. This rule is exempt from the procedures of the Regulatory Flexibility Act to prepare a regulatory flexibility analysis because the rule is issued without opportunity for prior public comment. This emergency action meets the Categorical Exclusion requirements of NOAA Administrative Order 216-6, and therefore no analysis was prepared pursuant to the National Environmental Policy Act. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: August 6, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 648 is amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.60, the introductory text to paragraph (a)(5)(ii) is suspended, and paragraph (a)(5)(iii) is added to read as follows: § 648.60 Sea scallop area access program requirements.
(a)* * *
(5)* * *
(iii)*NE multispecies possession limits and yellowtail flounder TAC.* Subject to the seasonal restriction established under the Sea Scallop Area Access Program and specified in § 648.59(b)(4), (c)(4), and (d)(4), and provided the vessel has been issued a scallop multispecies possession limit permit as specified in § 648.4(a)(1)(ii), after declaring a trip into a Sea Scallop Access Area and fishing within the Access Areas described in § 648.59(b) through (d), a vessel owner or operator of a limited access scallop vessel may fish for, possess, and land, per trip, up to a maximum of 1,000 lb (453. 6 kg) of all NE multispecies combined, subject to the minimum commercial fish size restrictions specified in § 648.83(a)(3), and the additional restrictions for Atlantic cod, haddock, and yellowtail flounder specified in paragraphs (a)(5)(iii)(A) through
(C)of this section. 3. In § 648.83, paragraph (a)(1) is suspended and paragraph (a)(3) is added to read as follows: § 648.83 Multispecies minimum fish sizes.
(a)* * *
(3)Minimum fish sizes for recreational vessels and charter/party vessels that are not fishing under a NE multispecies DAS are specified in § 648.17, all other vessels are subject to the following minimum fish sizes, determined by total length (TL): Minimum Fish Sizes
(TL)for Commercial Vessels Species Sizes (Inches) Cod 22 (55.9 cm) Haddock 18 (45.7 cm) Pollock 19 (48.3 cm) Witch flounder (gray sole) 14 (35.6 cm) Yellowtail flounder 13 (33.0 cm) American plaice 14 (35.6 cm) Atlantic halibut 36 (91.4 cm) Winter flounder (blackback) 12 (30.5 cm) Redfish 9 (22.9 cm) 4. In § 648.85, the introductory text to paragraph
(c)is suspended, and paragraph (c)(4) is added to read as follows: § 648.85 Special management programs.
(c)* * *
(4)*Scallop fishery closed area access program.* Limited access scallop vessels operating under the Sea Scallop Area Access Program, as defined in § 648.59, and fishing in accordance with the regulations at § 648.60 may possess and land up to 1,000 lb (453.6 kg) of all NE multispecies combined, as provided in § 648.60(a)(5)(iii). 5. In § 648.88, paragraph
(c)is suspended and paragraph
(e)is added to read as follows: § 648.88 Multispecies open access permit restrictions.
(e)*Scallop NE multispecies possession limit permit.* With the exception of vessels fishing in the Sea Scallop Access Areas as specified in § 648.59(b) through (d), a vessel that has been issued a valid open access scallop NE multispecies possession limit permit may possess and land up to 300 lb (136.1 kg) of regulated NE multispecies when fishing under a scallop DAS allocated under § 648.53, provided the vessel does not fish for, possess, or land haddock from January 1 through June 30, as specified under (a)(2)(i), and provided that the amount of regulated NE multispecies on board the vessel does not exceed any of the pertinent trip limits specified under § 648.86, and provided the vessel has at least one standard tote on board. A vessel fishing in the Sea Scallop Access Areas as specified in § 648.59(b) through
(d)is subject to the possession limits specified in § 648.60(a)(5)(iii). [FR Doc. E7-15693 Filed 8-9-07; 8:45 am] BILLING CODE 3510-22-S 72 154 Friday, August 10, 2007 Proposed Rules FEDERAL RETIREMENT THRIFT INVESTMENT BOARD 5 CFR Parts 1600, 1605, 1631, 1651, 1655 and 1690 Employee Contribution Election and Contribution Allocations; Correction of Administrative Errors; Availability of Records; Death Benefits; Loan Program; Thrift Savings Plan AGENCY: Federal Retirement Thrift Investment Board. ACTION: Proposed rules with request for comments. SUMMARY: The Federal Retirement Thrift Investment Board (Agency) proposes to amend its regulations to reflect the requirements stated in the Treasury Regulations interpreting I.R.C. 401(a)(31) to provide additional means to verify that an amount is eligible for rollover to the TSP. The Agency proposes to amend its regulations to clarify that the procedures applicable to an employee who was misclassified as either CSRS or FERS also apply to an employee who elects retroactive non-appropriated fund
(NAF)retirement coverage. The Agency proposes to add a rule regarding the production and authentication of records. The Agency would authenticate records in a manner consistent with Federal law and regulations. The Agency proposes to amend its death benefit payment regulations in order to allow a non-spouse beneficiary to transfer a death benefit payment to an inherited IRA as authorized by the Pension Protection Act. The Agency proposes to amend its loan regulations to reflect the changes brought by the Bankruptcy Abuse and Consumer Protection Act of 2005. Specifically, the amendments would reflect that a bankruptcy court now lacks jurisdiction over a TSP loan. The Agency proposes to amend its regulations to clarify its power of attorney regulations by eliminating examples of general and special powers of attorney, some of which would no longer be acceptable to the Agency, and directing participants to a sample form at *http://www.tsp.gov.* DATES: Comments must be received on or before September 10, 2007. ADDRESSES: Comments may be sent to Thomas K. Emswiler, General Counsel, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The Agency's Fax number is
(202)942-1676. FOR FURTHER INFORMATION CONTACT: Megan Graziano on
(202)942-1644. SUPPLEMENTARY INFORMATION: The Agency administers the TSP, which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)). Employee Contribution Election and Contribution Allocations The Agency proposes to amend its regulations regarding eligible rollover distributions to the TSP. In particular, since Treasury regulations only require that the Agency receive sufficient evidence to reasonably conclude that a contribution is a valid rollover contribution, the Agency no longer requires a plan administrator or trustee to certify such distributions. Further, when a participant completes a rollover, IRS rules require that the rollover be completed within 60 days of the date the participant received the distribution. Therefore, Agency practice is to have the participant certify the date the distribution was received. Agency regulations, however, require the financial institution to certify the date of the distribution. This date is irrelevant to a rollover that is completed by a participant. In addition, the Agency can conduct additional verification in the event that the date certified varies significantly from the date on the check. Therefore, the Agency proposes to amend its regulations to delete the requirement that a financial institution certify the date of distribution. Correction of Administrative Errors The Agency proposes to amend its regulations to clarify that the procedures applicable to a participant misclassified as either FERS or CSRS and the retirement coverage is corrected to FICA only, also apply to an employee who elects retroactive NAF coverage. These procedures will ensure that the employee either is refunded all contributions made by the employee or maintains ownership of all contributions that the TSP's record keeping system is unable to refund to the employee and that will continue to inure to the employee's benefit. The agency contributions that forfeit to the TSP will benefit all TSP participants because they will be used to offset the TSP's administrative expenses. Availability of Records The Agency proposes to add a section to its regulations regarding production and disclosure of records, and specifically, in relation to certification and authentication of records. The Agency frequently receives subpoenas directing it to authenticate Agency documents for use in state court proceedings. Often, these subpoenas request that such documents be authenticated in accordance with state court procedures and receive notarization. The Agency lacks the expertise to comply with the procedures of the individual 50 states and attempting to do so would result in a misallocation of TSP resources. Furthermore, it is not necessary for the Agency to comply with state court procedures in order for Agency documents to be admissible in a state court proceeding. Section 1733(b) of title 28, United States Code, provides that “[p]roperly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof.” In order to properly authenticate Agency documents, the records custodian or other qualified individual shall attach a written declaration that complies with current Federal Rules of Evidence. Documents so authenticated shall be admitted in evidence equally with the originals thereof. See 28 U.S.C. 1733(b). Therefore, this regulation prescribes procedures for the Agency to authenticate documents so that the documents will be admissible in all state court proceedings. These procedures shall be the exclusive means of authenticating Agency documents. Death Benefits The Agency proposes to amend its regulations to reflect changes in its death benefit payment process brought by the Pension Protection Act
(PPA)of 2006. The PPA allows non-spouse beneficiaries to transfer all or part of their benefits payable from a qualified retirement plan or government plan to an inherited IRA. As a result, the Agency proposes to amend its regulations to allow a non-spouse beneficiary to transfer all or part of his or her death benefit payment from the TSP to an inherited IRA. Loan Program The Agency proposes to amend its regulations to reflect changes in bankruptcy law. Due to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub. L. 109-8), a bankruptcy court lacks jurisdiction over a TSP loan under both chapter 7 and chapter 13 procedures. To reflect this change, language mentioning the possibility of a bankruptcy court stopping TSP loan payments under a chapter 13 bankruptcy procedure would be removed. Thrift Savings Plan The Agency proposes to amend its regulations to simplify the regulations' description of acceptable general and special powers of attorney. By eliminating the noncomprehensive list of examples provided in the regulations, the agency hopes participants will use the regulations' thorough definitions as well as overview material and sample forms provided at *http://www.tsp.gov* to secure a proper power of attorney. Regulatory Flexibility Act I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government. Paperwork Reduction Act I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act. Unfunded Mandates Reform Act of 1995 Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required. Submission to Congress and the General Accounting Office Pursuant to 5 U.S.C. 810(a)(1)(A), the Agency submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the **Federal Register** . This rule is not a major rule as defined at 5 U.S.C. 814(2). List of Subjects 5 CFR Parts 1600, 1690 Government employees, Pensions, Retirement. 5 CFR Parts 1605, 1651 Claims, Government employees, Pensions, Retirement. 5 CFR Part 1631 Courts, Freedom of information, Government employees. 5 CFR Part 1655 Credit, Government employees, Pensions, Retirement. Thomas K. Emswiler, General Counsel, Federal Retirement Thrift Investment Board. For the reasons set forth in the preamble, the Agency proposes to amend 5 CFR chapter VI as follows: PART 1600—EMPLOYEE CONTRIBUTION ELECTIONS AND CONTRIBUTION 1. The authority citation for part 1600 continues to read as follows: Authority: 5 U.S.C. 8351, 8432(a), 8432(b)(1)(A), 8432(j), 8474(b)(5) and (c)(1). 2. Amend § 1600.32 by removing the second sentence of paragraph
(a)and adding two sentences in its place, and revising paragraph (b)(2) to read as follows: § 1600.32 Methods for transferring eligible rollover distribution to TSP.
(a)* * * The administrator or trustee must either complete the appropriate section of the form and forward the completed form and the distribution to the TSP record keeper or the Agency must receive sufficient evidence from which to reasonably conclude that a contribution is a valid rollover contribution. By way of example, sufficient evidence to conclude a contribution is a valid rollover contribution includes a copy of the plan's determination letter, a letter or other statement from the plan indicating that it is an eligible retirement plan, a check indicating that the contribution is a direct rollover or a tax notice from the plan to the participant indicating that the participant could receive a rollover from the plan.
(b)* * *
(2)The administrator or trustee must either complete the appropriate section of the form and forward the completed form and the distribution to the TSP record keeper or the Agency must receive sufficient evidence from which to reasonably conclude that a contribution is a valid rollover contribution. By way of example, sufficient evidence to conclude a contribution is a valid rollover contribution includes a copy of the plan's determination letter, a letter or other statement from the plan indicating that it is an eligible retirement plan, a check indicating that the contribution is a direct rollover or a tax notice from the plan to the participant indicating that the participant could receive a rollover from the plan. PART 1605—CORRECTION OF ADMINISTRATIVE ERRORS 3. The authority citation for part 1605 is revised to read as follows: Authority: 5 U.S.C. 8351, 8432a, and 8474(b)(5)(5) and (c)(1). Subpart B also issued under section 1043(b) of Pub. Law 104-106, 110 Stat. 186 and sec. 7202(m)(2) of Pub. Law 101-508, 104 Stat. 1388. 4. Section 1605.14 is amended by revising the third sentence of paragraph (a)(1), revising paragraph (c)(2) and adding paragraph
(e)to read as follows: § 1605.14 Misclassified retirement system coverage.
(a)* * *
(1)* * * If the participant requests a refund of employee contributions, the employing agency must submit a negative adjustment record to remove these funds under the procedure described in § 1605.12.
(c)* * *
(2)Employer contributions in the account are subject to the rules in paragraph (a)(2) of this section.
(e)The provisions of paragraph
(c)of this section shall apply to any TSP contributions relating to a period for which an employee elects retroactive Nonappropriated Fund retirement coverage. PART 1631—AVAILABILITY OF RECORDS 5. The authority citation for part 1631 continues to read as follows: Authority: 5 U.S.C. 552. 6. Add § 1631.34 to read as follows: § 1631.34 Certification and authentication of records.
(a)Upon request, the records custodian or other qualified individual shall authenticate copies of books, records, papers, writings, and documents by attaching a written declaration that complies with current Federal Rules of Evidence. No seal or notarization shall be required. Copies of any books, records, papers, or other documents in the Federal Retirement Thrift Investment Board shall be admitted in evidence equally with the originals thereof when authenticated in this manner.
(b)Fees for copying and certification are set forth in 5 CFR 1630.16. PART 1651—DEATH BENEFITS 7. The authority citation for part 1651 continues to read as follows: Authority: 5 U.S.C. 8424(d), 8432(j), 8433(e), 8435(c)(2), 8474(b)(5) and 8474(c)(1). 8. In § 1651.14, redesignate paragraphs
(g)and
(h)as paragraphs
(h)and (i), and add new paragraph
(g)to read as follows: § 1651.14 How payment is made.
(g)*Payment to inherited IRA on behalf of a non-spouse beneficiary.* If payment is to an inherited IRA on behalf of a non-spouse beneficiary, the check will be made payable to the account. Information pertaining to the inherited IRA must be submitted by the IRA trustee. PART 1655—LOAN PROGRAM 9. The authority citation for part 1655 continues to read as follows: Authority: 5 U.S.C. 8433(g), 8439(a)(3) and 8474. § 1655.14 [Amended] 10. In § 1655.14, the third sentence of paragraph
(a)is removed. § 1655.15 [Amended] 11. In § 1655.15 “or” is added to the end of paragraph (a)(5), a period replaces the semicolon at the end of paragraph (a)(6), “or” is removed from the end of paragraph (a)(6), and paragraph (a)(7) is removed. PART 1690—THRIFT SAVINGS PLANS 12. The authority citation for part 1690 continues to read as follows: Authority: 5 U.S.C. 8474. 13. Amend § 1690.12 by revising the second sentence in paragraph
(b)and the third sentence in paragraph
(c)to read as follows: § 1690.12 Power of attorney.
(b)* * * Additional information regarding general powers of attorney can be accessed at *http://www.tsp.gov.*
(c)* * * Additional information regarding special powers of attorney, as well as a sample form, can be accessed at *http://www.tsp.gov.* [FR Doc. E7-15635 Filed 8-9-07; 8:45 am] BILLING CODE 6760-01-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 959 [Docket Nos. AO-322-A4; AMS-2006-0079; FV06-959-1] Onions Grown in South Texas; Secretary's Decision and Referendum Order on Proposed Amendments to Marketing Agreement No. 143 and Order No. 959 AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule and referendum order. SUMMARY: This decision proposes amending the marketing agreement and order (order) for onions grown in South Texas, and provides growers with the opportunity to vote in a referendum to determine if they favor the changes. The amendments are based on those proposed by the South Texas Onion Committee (committee), which is responsible for local administration of the order. The amendments include: Adding authority to the order to establish supplemental assessment rates on specified containers of onions; authorizing interest and late payment charges on assessments not paid within a prescribed time period; and authorizing the committee to engage in marketing promotion and paid advertising activities. Two additional amendments were proposed by the Department of Agriculture (USDA): Requiring that a continuance referendum be conducted every six years to determine grower support for the order; and, limiting the number of consecutive terms of office a member can serve on the committee. The proposed amendments are intended to improve the operation and functioning of the South Texas onion marketing order program. DATES: The referendum will be conducted from September 10 through September 28, 2007. The representative period for the purpose of the referendum is August 1, 2006 through July 31, 2007. FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order Administration Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, USDA, 2202 Monterey Street, #102-B, Fresno, CA 93721; telephone:
(559)487-5110, Fax:
(559)487-5906, E-mail: *Martin.Engeler@usda.gov;* or Kathleen M. Finn, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, E-mail: *Kathy.Finn@usda.gov.* Small businesses may request information on this proceeding by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; telephone:
(202)720-2491, Fax:
(202)720-8938, E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: Prior documents in this proceeding include a Notice of Hearing issued on May 23, 2006, and published in the May 30, 2006, issue of the **Federal Register** (71 FR 30629), and a Recommended Decision issued on March 29, 2007 and published in the April 6, 2007 issue of the **Federal Register** (72 FR 17037). This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866. Preliminary Statement The proposed amendments are based on the record of a public hearing held on June 15, 2006, in Mission, Texas. The hearing was held to consider the proposed amendment of Marketing Agreement No. 143 and Order No. 959 regulating the handling of onions grown in South Texas. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 * et seq. * ), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900). The Notice of Hearing contained proposals submitted by the committee and by USDA. Four proposed amendments to the order were initially submitted by the committee to USDA and were included in the Notice of Hearing. Proposal number four in the Notice of Hearing pertaining to container marking requirements was withdrawn at the hearing. The committee's remaining three proposed amendments to the order would:
(1)Provide authority to establish supplemental assessment rates on specified containers of onions;
(2)authorize interest and late payment charges on assessments not paid within a prescribed time period; and
(3)add authority for marketing promotion, including paid advertising. The USDA proposed two additional amendments that would: Require a continuance referendum to be conducted every six years to determine grower support for the order; and limit the number of consecutive years a member may serve on the committee. USDA also proposed to make such changes to the order as may be necessary, if any of the proposed changes are adopted, so that all of the order's provisions conform to the effectuated amendments. Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on March 29, 2007, filed with the Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision and Opportunity to File Written Exceptions thereto by May 7, 2007. None were filed. Small Business Considerations Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small agricultural growers have been defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms are defined as those with annual receipts of less than $6,500,000. There are approximately 114 growers of onions in the production area and approximately 38 handlers subject to regulation under the order. For the 2005-06 marketing year, the industry's 38 handlers shipped onions produced on 17,694 acres with the average and median volume handled being 182,148 and 174,437 fifty-pound equivalents, respectively. In terms of production value, total revenues for the 38 handlers were estimated to be $44.2 million, with average and median revenues being $1.16 million and $1.12 million, respectively. The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year. Based on the SBA's definition of small entities, the Committee estimates that all of the 38 handlers regulated by the order would be considered small entities if only their onion revenues are considered. However, revenues from other productive enterprises would likely push a number of these handlers above the $6,500,000 annual receipt threshold. Likewise, all of the 114 producers may be classified as small entities based on the SBA definition if only their revenue from onions is considered. The committee is comprised of 10 growers and 7 handlers, representing both large and small entities. Committee meetings are open to the public. All members are able to participate in committee deliberations and each has an equal vote in committee decisions. When the committee met on October 28, 2004, and recommended the proposed amendments, all views expressed by the members and others in attendance were considered. In addition, the hearing to receive evidence on the proposed changes was open to the public and all interested parties were invited and encouraged to participate and provide their views. The proposed amendments are intended to provide the committee and industry with additional tools to aid in the marketing of South Texas onions, and to improve the operation and administration of the order. Record evidence indicates that the proposed changes are intended to benefit all onion producers and handlers under the order, regardless of size. Witnesses testified that the impact of any of the proposals, if implemented, would be proportionate to individual grower's and handler's size, and that both small and large entities would benefit. The record shows that the proposal to include authority for supplemental rates of assessments on specified containers would not have a differential impact on small versus large growers and handlers. Any increased assessment costs would be based on the type and volume of containers shipped rather than the size of a grower or handler's operation. Any supplemental assessment rate would thus be applied proportionately to handlers. Onions that are packed and sold in cartons receive a higher return than onions packed and sold in bags or sacks. There is no known relationship between small versus large growers and handlers and the types of containers in which they pack their product. If onions packed in the higher value cartons were assessed at a higher rate, the assessment burden on the industry would be more proportionate to the revenues generated by the sales of product in the different types of containers. In absolute dollar terms, a handler packing and selling only carton onions would pay more in assessments than a handler packing and selling a comparable volume of bagged onions. However, witnesses testified that additional funds generated from the supplemental assessment rate on specified containers would be used to promote sales of the product packed and sold in those containers. Therefore, the benefits of promotion would more directly benefit those paying the supplemental assessment. As discussed later in this document, the benefits of such promotions would be expected to outweigh the additional costs. Assessment revenues generated from supplemental assessment rates on specified containers would not be used to subsidize the lower assessment revenues generated from sales of the lower value product, thereby ensuring equitability between handlers. The proposed amendment to authorize the committee to charge interest and/or late payment fees on assessments not paid within a prescribed time period would not have a differential impact on small and large entities. According to the record, late fees and interest charges, if implemented, would be based on handlers' timeliness of payments, regardless of size. A hearing witness familiar with the assessment collection operations under the order stated that there is no relationship between a handler's performance with regard to timely assessment payment and the size of the handler's business operation. Any increased costs would be borne only by those handlers that fail to pay their assessments in a timely manner. These potential costs would offset any potential advantage handlers could gain by not paying their assessments when due and would thus promote equity for all handlers. It would provide an incentive to pay on time. This proposed amendment is strictly a performance-based measure and would thus be applied based on handlers' performance with respect to their payment of assessments. Adding authority for paid advertising to the order would not disproportionately impact small business if such authority is implemented. Paid advertising activities would provide another tool the committee could use to promote its product. Paid advertising activities would be funded from handler assessments, which, as previously mentioned, are proportional to the volume of product shipped and thus proportional to the handler's relative size. Likewise, funding of the activities would be proportional. Promotional activities authorized under the order are generic in nature. Generic advertising and promotion attempts to influence consumer's preferences and perceptions about a product, and if successful, ultimately expands the demand for the product. Because generic promotion promotes a product category, it benefits all entities in the category, especially growers and handlers. As witnesses testified, specific benefits of promotion and advertising programs are difficult to quantify, and are especially difficult to estimate prior to engaging in the activities. However, if more product is ultimately sold, both large and small growers and handlers benefit. The proposed amendment to limit the number of consecutive terms of office that committee members may serve would increase industry participation on the committee by allowing more persons the opportunity to serve as members of the committee. It would also provide for more diverse membership, provide the committee with new perspectives and ideas, and increase the number of individuals in the industry with committee experience. There would be no additional cost as a result of this amendment. The proposal to require continuance referenda on a periodic basis to ascertain grower support for the order would allow growers to vote on whether to continue the operation of the program. This provides a means for those whom the order was intended to benefit with an opportunity to express their views regarding continuation of the marketing order. USDA would conduct the referenda, and thus USDA would bear the majority of any associated costs. Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impacts of the proposed amendments to the order on small entities. The record evidence is that while some minimal costs may occur, those costs would be outweighed by the benefits expected to accrue to the South Texas onion industry. In addition, any additional costs would be proportional to a handler's size and would not unduly or disproportionately impact small entities. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. The amendments are designed to improve the administration and operation of the order and to provide additional tools to assist in the marketing of South Texas onions. Paperwork Reduction Act Current information collection requirements for Part 959 are currently approved by the Office of Management and Budget
(OMB)under OMB number 0581-0178, “Vegetable and Specialty Crops.” No changes in those requirements as a result of this proceeding are anticipated. Should any changes become necessary, they would be submitted to OMB for approval. As with other similar marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Civil Justice Reform The amendments to Marketing Order 959 proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with the Department a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, the USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Department's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. Findings and Conclusions The material issues, findings and conclusions, rulings, and general findings and determinations included in the Recommended Decision set forth in the April 6, 2007, issue of the **Federal Register** are hereby approved and adopted. Marketing Agreement and Order Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Onions Grown in South Texas.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions. *It is hereby ordered* , That this entire decision be published in the **Federal Register** . Referendum Order It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400 *et seq.* ) to determine whether the annexed order amending the order regulating the handling of onions grown in South Texas is approved or favored by growers, as defined under the terms of the order, who during the representative period were engaged in the production of onions in the production area. The representative period for the conduct of such referendum is hereby determined to be August 1, 2006, through July 31, 2007. The agent of the Secretary to conduct such referendum is hereby designated to be Belinda G. Garza, Regional Manager, Texas Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(956)682-2833, Fax:
(956)682-5942, or E-mail: *Belinda.Garza@usda.gov.* List of Subjects in 7 CFR Part 959 Marketing agreements, Onions, Reporting and recordkeeping requirements. Dated: August 2, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. Order Amending the Order Regulating the Handling of Onions Grown in South Texas 1 1 This order shall not become effective unless and until the requirements of § 900.14 of the rules of practice and procedure governing proceedings to formulate marketing agreements and marketing orders have been met. Findings and Determinations The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing agreement and order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.
(a)*Findings and Determinations Upon the Basis of the Hearing Record.* Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 *et seq.* ), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon the proposed amendments to Marketing Agreement No. 143 and Order No. 959 (7 CFR part 959), regulating the handling of onions grown in South Texas. Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:
(1)The marketing agreement and order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;
(2)The marketing agreement and order, as amended, and as hereby proposed to be further amended, regulate the handling of onions grown in the production area (designated counties in South Texas) in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing agreement and order upon which a hearing has been held;
(3)The marketing agreement and order, as amended, and as hereby proposed to be further amended, are limited in their application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;
(4)The marketing agreement and order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of onions grown in the production area; and
(5)All handling of onions grown in the production area as defined in the marketing agreement and order, is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce. Order Relative to Handling *It is therefore ordered* , That on and after the effective date hereof, all handling of onions grown in South Texas shall be in conformity to, and in compliance with, the terms and conditions of the said order as hereby proposed to be amended as follows: The provisions of the proposed marketing agreement and order amending the order contained in the Recommended Decision issued by the Administrator on March 29, 2007, and published in the **Federal Register** on April 6, 2007, will be and are the terms and provisions of this order amending the order and are set forth in full herein. PART 959—ONIONS GROWN IN SOUTH TEXAS 1. The authority citation for 7 CFR part 959 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. In Section 959.23, paragraph
(a)is revised to read as follows: § 959.23 Term of office.
(a)The term of office of committee members and their respective alternates shall be for two years and shall begin as of August 1 and end as of July 31. The terms shall be so determined that about one-half of the total committee membership shall terminate each year. Committee members shall not serve more than three consecutive terms. Members who have served for three consecutive terms may not serve as members for at least one year before becoming eligible to serve again. A person who has served less than six consecutive years on the committee may not be nominated to a new two-year term if his or her total consecutive years on the committee at the end of that new term would exceed six years. This limitation on the number of consecutive terms and years does not apply to service on the committee prior to the enactment of this provision and does not apply to alternates. 3. Revise paragraph
(b)of § 959.42 to read as follows: § 959.42 Assessments.
(b)Based upon the recommendation of the committee or other available data, the Secretary shall fix a base rate of assessment that handlers shall pay on all onions handled during each fiscal period. Upon recommendation of the committee, the Secretary may also fix supplemental rates on specified containers, including premium containers, identified by the committee and used in the production area: Provided, That any such supplemental assessment funds shall be used, to the extent practicable, for projects and activities related to the product upon which such assessments are collected. 4. Add a new paragraph
(e)to § 959.42 to read as follows: § 959.42 Assessments.
(e)If a handler does not pay assessments within the time prescribed by the committee, the assessment may be increased by a late payment charge and/or an interest rate charge at amounts prescribed by the committee with approval of the Secretary. 5. Revise § 959.48 to read as follows: § 959.48 Research and development. The committee, with approval of the Secretary, may establish or provide for the establishment of production research, marketing research, development projects, and marketing promotion, including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of onions. The expenses of such projects shall be paid from funds collected pursuant to § 959.42. 6. In § 959.84, redesignate paragraph
(d)as paragraph
(e)and add a new paragraph
(d)to read as follows: § 959.84 Termination.
(d)The Secretary shall conduct a referendum within six years after the effective date of this paragraph and every sixth year thereafter to ascertain whether continuance is favored by producers. The Secretary would consider termination of this part if less than two-thirds of the growers voting in the referendum and growers of less than two-thirds of the volume of onions represented in the referendum favor continuance. [FR Doc. E7-15391 Filed 8-9-07; 8:45 am] BILLING CODE 3410-02-P NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 171 RIN 3150-AI15 NRC Size Standards; Revision AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule. SUMMARY: The Nuclear Regulatory Commission
(NRC)is proposing to amend the size standards it uses to qualify an NRC licensee as a small entity under the Regulatory Flexibility Act and making the same change to its annual fee rule. NRC proposes to increase the receipts-based small business size standard from $5 million to $6.5 million to conform to the standard set by the Small Business Administration (SBA). This size standard reflects the most commonly used SBA size standard for the nonmanufacturing industries. SBA adjusted this standard on January 23, 2002 (67 FR 3041) and on December 6, 2005 (70 FR 72577) to account for inflation. DATES: The direct final rule will become effective on October 24, 2007, unless significant adverse comments on the amendment are received by September 10, 2007. If the rule is withdrawn as a result of such comments, timely notice of the withdrawal will be published in the **Federal Register** . Comments received after September 10, 2007 will be considered if it is practical to do so, but the NRC is able to ensure only that comments received on or before this date will be considered. ADDRESSES: You may submit comments by any one of the following methods. Please include the following number (RIN 3150-AI15) in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission. *Mail comments to:* Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. *E-mail comments to: SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at
(301)415-1966. You may also submit comments via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov* . Address questions about our rulemaking Web site to Carol Gallagher
(301)415-5905; e-mail *CAG@nrc.gov* . *Hand deliver comments to:* 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. on Federal workdays. *Fax comments to:* Secretary, U.S. Nuclear Regulatory Commission at
(301)415-1101. Publicly available documents related to this rulemaking may be examined and copied for a fee at the NRC's Public Document Room (PDR), Public File Area O1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Selected documents, including comments, can be viewed and downloaded electronically via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov* . Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html* . From this site, the public can gain entry into the NRC's Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room
(PDR)Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to *PDR@nrc.gov* . FOR FURTHER INFORMATION CONTACT: Michael Lesar, Chief, Rulemaking, Directives and Editing Branch, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-7163, e-mail *mtl@nrc.gov* . SUPPLEMENTARY INFORMATION: For additional information see the direct final rule published in the Rules and Regulations section of this **Federal Register** . Procedural Background This rulemaking has the simple aim of updating NRC's size standards to reflect those of the SBA. Because the NRC believes that this action should not cause controversy, the NRC is using the direct final rule process for this rule. The amendment in this rule will become effective on October 24, 2007. However, if the NRC receives significant adverse comments on this direct final rule by September 10, 2007, the NRC will publish a document that withdraws this action. In that event, the comments received in response to these amendments would then be considered as comments on the companion proposed rule published elsewhere in this **Federal Register** , and the comments will be addressed in a later final rule based on that proposed rule. Unless the modifications to the proposed rule are significant enough to require that it be republished as a proposed rule, the NRC will not initiate a second comment period on this action. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1)The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a)The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b)The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c)The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2)The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3)The comment causes the staff to make a change (other than editorial) to the rule. List of Subjects 10 CFR Part 2 Administrative practice and procedure, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Source material, Special nuclear material, Waste treatment and disposal. 10 CFR Part 171 Annual charges, Byproduct material, Holders of certificates, registrations, approvals, Intergovernmental relations, Non-payment penalties, Nuclear materials, Nuclear power plants and reactors, Source material, Special nuclear material. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing the following amendments to 10 CFR parts 2 and 171. PART 2—RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS 1. The authority citation for part 2 continues to read as follows: Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)); sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-550, 84 Stat. 1473 (42 U.S.C. 2135). 2. In § 2.810, paragraph (a)(1) is revised to read as follows: § 2.810 NRC Size Standards.
(a)* * *
(1)Concern that provides a service or a concern not engaged in manufacturing with average gross receipts of $6.5 million or less over its last 3 completed fiscal years; or PART 171—ANNUAL FEES FOR REACTOR LICENSES AND FUEL CYCLE LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF CERTIFICATES OF COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE PROGRAM APPROVALS AND GOVERNMENT AGENCIES LICENSES BY THE NRC 3. The authority citation for part 171 continues to read as follows: Authority: Sec. 7601, Pub. L. 99-272, 100 Stat. 146, as amended by sec. 5601, Pub. L. 100-203, 101 Stat. 1330 as amended by sec. 3201, Pub. L. 101-239, 103 Stat. 2132, as amended by sec. 6101, Pub. L. 101-508, 104 Stat. 1388, as amended by sec. 2903a, Pub. L. 102-486, 106 Stat. 3125 (42 U.S.C. 2213, 2214); and as amended by Title IV, Pub. L. 109-103, 119 Stat. 2283 (42 U.S.C. 2214); sec. 301, Pub. L. 92-314, 86 Stat. 227 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-438, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). § 171.16 Annual fees: Materials licensees, holders of certificates of compliance, holders of sealed source and device registrations, holders of quality assurance program approvals, and Government agencies licensed by the NRC. 4. In § 171.16, paragraph
(c)introductory text is revised to read as follows:
(c)A licensee who is required to pay an annual fee under this section may qualify as a small entity. If a licensee qualifies as a small entity and provides the Commission with the proper certification along with its annual fee payment, the licensee may pay reduced annual fees as shown in the following table. Failure to file a small entity certification in a timely manner could result in the denial of any refund that might otherwise be due. The small entity fees are as follows: Maximum annual fee per licensed category Small Businesses Not Engaged in Manufacturing and Small Not-For-Profit Organizations (Gross Annual Receipts): $350,000 to $6.5 million $2,300 Less than $350,000 500 Manufacturing entities that have an average of 500 employees or less: 35 to 500 employees 2,300 Less than 35 employees 500 Small Governmental Jurisdictions (Including publicly supported educational institutions) (Population): 20,000 to 50,000 2,300 Less than 20,000 500 Educational Institutions that are not State or Publicly Supported, and have 500 Employees or Less: 35 to 500 employees 2,300 Less than 35 employees 500 Dated at Rockville, Maryland, this 27th day of July, 2007. For the Nuclear Regulatory Commission. Luis A. Reyes, Executive Director for Operations. [FR Doc. E7-15554 Filed 8-9-07; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy 10 CFR Part 431 [Docket No. EERE-2007-BT-STD-0007] RIN 1904-AB70 Energy Efficiency Program for Certain Commercial and Industrial Equipment: Public Meeting and Availability of the Framework Document for Small Electric Motors AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Notice of public meeting and availability of the Framework Document. SUMMARY: The Department of Energy (DOE or Department) is initiating the rulemaking process to adopt new energy conservation standards for small electric motors. Accordingly, the Department will hold an informal public meeting to discuss and receive comments on issues it will address in this rulemaking proceeding. The Department also encourages written comments on these subjects. To inform stakeholders and facilitate this process, DOE has prepared a Framework Document, which is available at: *http://www.eere.energy.gov/buildings/appliance_standards/* . DATES: The Department will hold a public meeting on Thursday, September 13, 2007 from 9 a.m. to 5 p.m. at DOE headquarters in Washington, DC. Any person requesting to speak at the public meeting should submit such request along with a signed original and an electronic copy of statements to be given at the meeting before 4 p.m., Thursday, August 30, 2007. Written comments are welcome, especially following the public meeting, and should be submitted by Friday, September 28, 2007. ADDRESSES: The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue, SW., Washington, DC 20585-0121. (Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures. If a foreign national wishes to participate in the workshop, please inform DOE of this fact as soon as possible by contacting Ms. Brenda Edwards-Jones at
(202)586-2945, so that the necessary procedures can be completed.) Stakeholders may submit comments, identified by docket number EERE-2007-BT-STD-0007 and/or Regulatory Identifier Number
(RIN)1904-AB70, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: small_electric_motors_std.rulemaking@ee.doe.gov.* Include docket number EERE-2007-BT-STD-0007 and/or RIN 1904-AB70 in the subject line of the message. • *Mail:* Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Framework Document for Small Electric Motors, docket number EERE-2007-BT-STD-0007 and/or RIN 1904-AB70, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Please submit one signed paper original. • *Hand Delivery/Courier:* Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Room 1J-018, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:
(202)586-2945. Please submit one signed paper original. *Instructions:* All submissions received must include the agency name and docket number or RIN for this rulemaking. *Docket:* For access to the docket to read background documents, a copy of the transcript of the public meeting, or comments received, go to the U.S. Department of Energy, Forrestal Building, Room 1J-018 (Resource Room of the Building Technologies Program), 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at the above telephone number for additional information regarding visiting the Resource Room. FOR FURTHER INFORMATION CONTACT: Antonio M. Bouza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-586-4563. E-mail: *Antonio.Bouza@ee.doe.gov* ; Francine Pinto, Esq., or Eric Stas, Esq., U.S. Department of Energy, Office of the General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-9507. E-mail: *Francine.Pinto@hq.doe.gov* or *Eric.Stas@hq.doe.gov* . SUPPLEMENTARY INFORMATION: The Energy Policy and Conservation Act
(EPCA)of 1975 (42 U.S.C. 6291-6309) established an energy conservation program for major household appliances. The National Energy Conservation Policy Act of 1978 (NECPA) amended EPCA to add Part C of Title III (42 U.S.C. 6311-6317), which established an energy conservation program for certain industrial equipment. The Energy Policy Act of 1992 (EPACT), Public Law 102-486, also amended EPCA, and included amendments that expanded Title III to include certain types of commercial equipment, including small electric motors. Specifically, EPACT amended section 346 of EPCA (42 U.S.C. 6317) to provide that the Secretary of Energy prescribe testing requirements and energy conservation standards for those small electric motors for which the Secretary determines that standards “would be technologically feasible and economically justified, and would result in significant energy savings.” (42 U.S.C. 6317(b)(1)) On July 10, 2006, the Secretary of Energy made a positive determination with respect to testing requirements and energy conservation standards for small electric motors. 71 FR 38799. As a result of DOE's determination analysis, the Secretary determined preliminarily that standards for small electric motors would be “technologically feasible and economically justified, and would result in significant energy savings.” DOE will determine whether and at what level to promulgate energy conservation standards for small electric motors based on in-depth consideration, with public participation, of the technical feasibility, economic justification, and energy savings of potential standards levels in the context of prescribing new or amended standards pursuant to section 325(o) and
(p)of EPCA (42 U.S.C. 6295(o), (p)). To begin the required rulemaking process, the Department prepared a Framework Document to present the issues and explain the analyses and process it anticipates using to set energy conservation standards for small electric motors. The focus of the public meeting will be to discuss the analyses and issues identified in various sections of the Framework Document. During the Department's presentation to stakeholders, the Department will discuss each item listed in the Framework Document as an issue for comment. The Department will also make a brief presentation on the rulemaking process for these products. The Department encourages those who wish to participate in the public meeting to obtain the Framework Document and be prepared to discuss its contents. However, public meeting participants need not limit their discussions to the topics in the Framework Document. A copy of the draft Framework Document is available at: *http://www.eere.energy.gov/buildings/appliance_standards/* . The Department is also interested in receiving views concerning other relevant issues that participants believe would affect energy conservation standards for these products. The Department also welcomes all interested parties, whether or not they participate in the public meeting, to submit in writing by Friday, September 28, 2007, comments and information on the matters addressed in the Framework Document and on other matters relevant to consideration of standards for these small electric motors. The public meeting will be conducted in an informal, facilitated, conference style. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by the U.S. antitrust laws. A court reporter will be present to prepare a transcript of the meeting. After the public meeting and the expiration of the period for submission of written statements, the Department will begin conducting the analyses as discussed at the public meeting and reviewing the comments received. Anyone who would like to participate in the public meeting, receive meeting materials, or be added to the DOE mailing list to receive future notices and information regarding small electric motors, should contact Ms. Brenda Edwards-Jones at
(202)586-2945. Issued in Washington, DC, on August 3, 2007. Alexander A. Karsner, Assistant Secretary, Energy Efficiency and Renewable Energy. [FR Doc. E7-15692 Filed 8-9-07; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2560 RIN 1210-AB23 Amendments to Civil Penalties Under ERISA Section 502(c)(7) AGENCY: Employee Benefits Security Administration, Labor. ACTION: Proposed rule. SUMMARY: This proposed rule is a companion to the Department of Labor/Employee Benefits Security Administration's (Department) direct final rule (published today in the “Rules and Regulations” section of the **Federal Register** ) amending the Department's civil penalty regulation under section 502(c)(7) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) to reflect recent amendments to section 502(c)(7) by the Pension Protection Act of 2006. These amendments authorize the Secretary of Labor to assess civil penalties not to exceed $100 per day for each violation of section 101(m) of ERISA. Section 101(m) of ERISA requires plan administrators of individual account plans to notify participants and beneficiaries of their right to sell the company stock in their accounts and reinvest the proceeds into other investments available under the plan. The Department is publishing these amendments as a direct final rule without prior proposal because the Department views them as highly technical and anticipates no significant adverse comment. The Department has explained its reasons in the preamble to the direct final rule. If the Department receives no significant adverse comment during the comment period, no further action on this proposed rule will be taken. However, if the Department receives significant adverse comment, the Department will withdraw the direct final rule and it will not take effect. In that case, the Department will address all public comments in a subsequent final rule based on this proposed rule. The Department will not institute a second comment period on this rule. Any parties interested in commenting must do so during this comment period. DATES: Comments must be received on or before September 10, 2007. ADDRESSES: To facilitate the receipt and processing of comments, the Department encourages interested persons to submit their comments electronically by e-mail to e *-ORI@dol.gov* , or by using the Federal eRulemaking portal at *www.regulations.gov* (follow instructions for submission of comments). Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting comments on paper should send or deliver their comments (at least three copies) to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attn: 502(c)(7) Civil Penalty. Comments received will be posted without change, including any personal information provided, to *www.regulations.gov* and *http://www.dol.gov/ebsa* , and also available for public inspection at the Public Disclosure Room, Employee Benefits Security Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Stephanie L. Ward, Office of Regulations and Interpretations, Employee Benefits Security Administration,
(202)693-8500. This is not a toll-free number. SUPPLEMENTARY INFORMATION: As noted above, in the “Rules and Regulations” section of today's **Federal Register** , the direct final rule being published makes technical changes to the Department's existing civil penalty regulation at 29 CFR 2560.502c-7 for violations of section 101(i) of ERISA, relating to blackout notices, in order to conform the regulation to section 502(c)(7) of ERISA, as amended by the Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780, for violations of section 101(m) of ERISA, relating to diversification rights. The provisions proposed here are those contained in the direct final rule. Please refer to the preamble and regulatory text of the direct final rule for further information and the actual text of the revisions. Additionally, all information regarding Statutory and Executive Orders for this proposed rule can be found in the Supplementary Information section of the direct final rule. Signed at Washington, DC, this 3rd day of August, 2007. Bradford P. Campbell, Acting Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. E7-15568 Filed 8-9-07; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 1 [Docket No.: PTO-P-2006-0004] RIN 0651-AC00 Examination of Patent Applications That Include Claims Containing Alternative Language AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Notice of proposed rule making. SUMMARY: The United States Patent and Trademark Office (Office) is proposing to revise the rules of practice pertaining to any claim using alternative language to claim one or more species. The search and examination of such claims often consume a disproportionate amount of Office resources as compared to other types of claims, because determining the patentability of these claims often requires a separate examination of each of the alternatives within the claims. The Office expects that requiring applicants who choose to draft claims that read on multiple species using alternative language to maintain a certain degree of relatedness among the alternatives will enable the Office to do a more thorough and more reliable examination of such claims. Comment Deadline Date: To be ensured of consideration, written comments must be received on or before October 9, 2007. No public hearing will be held. ADDRESSES: Comments should be sent by electronic mail message over the Internet addressed to *markush.comments@uspto.gov.* Comments may also be submitted by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450, or by facsimile to
(571)273-7754, marked to the attention of Kathleen Kahler Fonda, Legal Advisor, Office of the Deputy Commissioner for Patent Examination Policy. Although comments may be submitted by mail or facsimile, the Office prefers to receive comments via the Internet. If comments are submitted by mail, the Office prefers that the comments be submitted on a DOS formatted 3 1/2 -inch disk accompanied by a paper copy. Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site ( *http://www.regulations.gov* ) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available through anonymous file transfer protocol
(ftp)via the Internet ( *http://www.uspto.gov* ). Because comments will be made available for public inspection, information that the submitter does not desire to make public, such as an address or phone number, should not be included in the comments. FOR FURTHER INFORMATION CONTACT: Kathleen Kahler Fonda, Legal Advisor, Office of the Deputy Commissioner for Patent Examination Policy, by telephone at
(571)272-7754; by mail addressed to: Box Comments Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450; or by facsimile to
(571)273-7754, marked to the attention of Kathleen Kahler Fonda. SUPPLEMENTARY INFORMATION: I. *Background Information.* As part of its ongoing efforts to enhance patent quality and reduce pendency in accordance with the 21st Century Strategic Plan, the Office is proposing to revise its treatment of claims that recite alternatives, whether the claims use Markush or other forms of alternative language. While the origins of the Markush claim drafting technique lie in the chemical arts, claims that recite alternatives are now commonplace in all areas of technology. Applicants sometimes use Markush or other alternative formats to claim multiple inventions and/or to recite hundreds, if not thousands, of alternative embodiments of a single invention in one claim. Proper search of such complex claims, particularly those using Markush language, often consume a disproportionate amount of Office resources as compared to other types of claims. The prosecution of these complex claims likewise often requires separate examination and patentability determinations for each of the alternatives within the claim, *e.g.* , if the alternatives raise separate prior art, enablement, or utility issues. Furthermore, the variety and frequency of alternatives recited in claims filed in applications pending before the Office, driven in part by trends in emerging technologies, have exacerbated problems with pendency. In addition to comments on the proposed rules, the Office welcomes further suggestions for changes that would improve the examination of claims that recite Markush or other alternative language while appropriately balancing the interests of the Office with those of applicants and the public. The Office expects that improving practices pertaining to claims that recite alternatives will enhance its ability to grant quality patents that effectively promote innovation in a timely manner. A. *Brief History of Office Treatment of Claims that Recite Alternatives.* Claims that define species within the scope thereof by enumeration are now commonplace in all areas of technology. However, the Office had formerly deemed them unacceptable, apparently for failure to comply with the definiteness requirement of 35 U.S.C. 112. *See* Manuel C. Rosa, *Outline of Practice Relative to “Markush” Claims* , 34 J. Pat. Off. Soc'y 324, 324 (1952); *Manual of Patent Examining Procedure*
(MPEP)section 706.03(d) (2nd Ed. 1953). In *Ex parte Markush* , 1925 Dec. Comm'r Pat. 126, 128 (1924), the Office officially sanctioned a claim drafting technique, already in use for some time, wherein the phrase “selected from the group consisting of” is followed by a closed listing of specific members of the group. Claims including such language became known as “Markush claims.” For example, if a claim to a chemical composition requires a particular alcohol, that alcohol could be defined via Markush language such as “an alcohol selected from the group consisting of methanol, ethanol, and isopropanol;” or “an alcohol of the formula R-OH, wherein R is selected from the group consisting of CH <sup>3</sup> -, CH <sup>3</sup> CH <sup>2</sup> -, and (CH <sup>3</sup> ) <sup>2</sup> CH-.” In addition to the indefiniteness issue, another factor giving rise to claims using Markush language was the change from claims based on the central type of definition to those based on the peripheral definition. With the peripheral-type claims came the necessity of avoiding invalidity by reason of inoperative species which might be included within the metes and bounds of the claim. In mechanical cases, this problem is overcome by the use of elements defined as “means” but chemical claims do not lend themselves well to such a solution due to the fact that equivalence in chemical cases is difficult to establish. The Markush claim may be regarded as a partial solution to this problem, since it permits an applicant to claim a subgeneric group containing those materials which have been actually tested and known by applicant to be operable. Richard L. Kelly, *et al.* , *Markush Claims* , 37 J. Pat. Off. Soc'y 164, 171 (1955). Thus, Markush practice arose from a need to address problems presented in claiming chemical compounds when an applicant could only define his or her invention by setting forth at least one set of alternatives from which a selection must be made. Most of the court decisions concerning claims that recite alternatives involve Markush practice and reflect problems associated with claiming compounds by their chemical structure. The Office has long wrestled with problems associated with Markush claiming. As noted in a 1935 review article: [T]he extent to which the patent professional * * * made use of the Markush formula indicated that its application had gone far afield of the original intent. It was like a fire which had spread beyond control. It became the medium through which totally unrelated substances could be assembled under the guise of a genus. * * * If one member were found to be old or inoperative, that one was stricken from the group, and the diminished group reasserted with renewed vigor. In such a case the search required was for as many individual species as there were members recited in the group. V.I. Richard, *Claims Under the Markush Formula* , 17 J. Pat. Off. Soc'y 179, 190 (1935). By the 1950s, the Office generally viewed members of a proper Markush group as patentably indistinct from each other. *See* Manuel C. Rosa, U.S. Dep't of Commerce, *Training Manual for Patent Examiners: Outline of Practice Relative to “Markush” Claims* 11
(1958)(“These decisions uniformly hold that a reference for one of the members of the group is a reference for the entire group.”) (citing *In re Ayres* , 83 F.2d 297, 29 USPQ 424 (CCPA 1936); *Ex parte Ellis* , 18 J. Pat. Off. Soc'y 731
(1936)(abstract only); *Ex parte Rutherford* , 63 USPQ 102 (Bd. Pat. App. 1943); *Ex parte Watt* , 63 USPQ 163 (Bd. Pat. App. 1942); *Ex parte Schroy* , 26 J. Pat. Off. Soc'y 498
(1944)(abstract only)). In 1958, the Court of Customs and Patent Appeals (CCPA), predecessor of the current Court of Appeals for the Federal Circuit (Federal Circuit), explained that Markush claims “were originally regarded as an exception to the previously acceptable claim terminology and were rigidly restricted to groups of substances belonging to some recognized class.” *In re Ruff* , 256 F.2d 590, 598, 118 USPQ 340, 348 (CCPA 1958). However, Markush practice had been substantially liberalized in that “the original rigid, emergency-engendered restrictions have been progressively relaxed through the years to the point where it is no longer possible to indulge in a presumption that the members of a Markush group are recognized by anyone to be equivalents except as they `possess at least one property in common which is mainly responsible for their function in the claimed relationship.' ” *Ruff* , 256 F.2d at 599, 118 USPQ at 348 (quoting MPEP section 706.03(y) (2nd ed. 1953)). The *Ruff* court concluded that in view of such liberalization, the mere fact that components were claimed as members of a Markush group could not be relied upon to establish the equivalency of these components. However, the *Ruff* court acknowledged that an applicant's expressed recognition of an art-recognized or obvious equivalent could be used as evidence that such equivalency does exist. *See Ruff* , 256 F.2d at 595, 118 USPQ at 345. After the *Ruff* decision, the Office tried several approaches to rein in administrative problems arising from Markush claims. These included rejecting claims on the following bases: 35 U.S.C. 112, ¶ 2; 35 U.S.C. 121 (accompanied by a restriction requirement and withdrawal of the claim); and a “judicially created doctrine” of improper Markush grouping. *See* Edward C.Walterscheid, *Markush Practice Revisited* , 61 J. Pat. Off. Soc'y 270, 271 (1979). However, the CCPA clearly enunciated its view that these statute-based rejections were improper. In *In re Wolfrum* , the court held that it is improper to reject a Markush claim under 35 U.S.C. 112, ¶ 2, merely because more than one independent and distinct invention is encompassed by the claim. 486 F.2d 588, 591, 179 USPQ 620, 622 (CCPA 1973). In a later case, the court explained that 35 U.S.C. 121 “provides the Commissioner with the authority to promulgate rules designed to restrict an application to one of several claimed inventions when those inventions are found to be ‘independent and distinct.’ It does not, however, provide a basis for an examiner acting under the authority of the Commissioner to reject a particular claim on that same basis.” *In re Weber* , 580 F.2d 455, 458, 198 USPQ 328, 331-32 (CCPA 1978) (emphases in original). Notably, although it determined that there was no statutory basis for rejecting a claim under 35 U.S.C. 121, the *Weber* court remanded the case to the Office for consideration of a doctrinally based “improper Markush claim” rejection. *See also In re Haas* , 486 F.2d 1053, 1054, 179 USPQ 623, 626 (CCPA 1973) (holding that following a restriction requirement, the withdrawal of a Markush claim from consideration not only in the application at issue but prospectively in any subsequent application on the basis of its content was effectively a rejection of that claim). Shortly after *Weber* and *Haas* , the CCPA provided a detailed analysis of Markush practice in *In re Harnisch* , 631 F.2d 716, 206 USPQ 300 (CCPA 1980). In that case, the Office rejected a claim drawn to coumarin compounds useful as dyes based on a judicially created doctrine, gleaned by the Office Board of Appeals (Board) from a number of cited CCPA decisions, as reciting an improper Markush group. According to the Board, both final product dyes and intermediate compounds from which they could be synthesized were within the scope of the claim, and the claim failed for misjoinder because some species within its scope were not “functionally equivalent” to others. The court reversed the Board's decision, explaining that it is improper for the Office to refuse to examine that which applicants regard as their invention, unless the subject matter of the claim lacks “unity of invention.” In tracing the history of “improper Markush” rejections, the court observed: In the early years of the development of Markush practice, many of the cases involved the problem of clarity—avoiding the uncertainties of alternatives and the like. More recently, the cases have centered on problems of scope, which are related to enablement. Assuming enablement, however, there remains a body of Markush-practice law regarding Markush-type claims, particularly in the chemical field, concerned more with the concept of what might be better described as the concept of unity of invention. At least the term would be more descriptive and more intelligible internationally than is the more esoteric and provincial expression 'Markush practice.' It is with this unity of invention concept in mind that we approach the propriety of the appealed claims. 631 F.2d at 721, 206 USPQ at 305. The *Harnisch* court then explained that the Office had a “perfect right” to rely on rules derived from case law “to determine whether the claims before it were or were not in proper form to be examined for patentability.” 631 F.2d at 720, 206 USPQ at 304. The *Harnisch* court further suggested that the Office consider exercising its rule making powers to forestall procedural problems arising from Markush claims. 631 F.2d at 722 n.6, 206 USPQ at n.6. While it is clear from *Harnisch* that the CCPA was not hostile to the concept of “improper” Markush claims, the Office has not received further guidance from its reviewing courts as to the propriety of a Markush rejection since *Harnisch.* The struggle to balance the needs of inventors for coverage of the full scope of their inventions with those of the Office for search and examination responsibilities commensurate in scope with resources is a long-standing one. The Office “must have some means for controlling such administrative matters as examiners’ caseloads and the amount of searching done per filing fee.” *Weber* , 580 F.2d at 458, 198 USPQ at 332. Controlling examiners' caseloads is a much more significant concern in 2007 than it was in 1978. The volume and complexity of patent applications continue to outpace the examining corps' current capacity to examine them. The result is a pending—and growing—application backlog of historic proportions. Thus the Office does not believe that controlling the amount of searching per filing fee will, by itself, resolve the administrative issues raised by the use of Markush or alternative language. For a more comprehensive review of the history of Markush claiming, *see* V.I. Richard, *Claims Under the Markush Formula* , 17 J. Pat. Off. Soc'y 179 (1935); Richard L. Kelly, et al., *Markush Claims* , 37 J. Pat. Off. Soc'y 164 (1955); Edward C. Walterscheid, *Markush Practice Revisited* , 61 J. Pat. Off. Soc'y 270 (1979); and *In re Harnisch* , 631 F.2d 716, 206 USPQ 300 (CCPA 1980). B. *Claims Reciting Alternatives.* Claims that use alternative language to define multiple species are often confusing and complex, and frequently border on being unmanageable. A single claim may continue for pages; even relatively short claims may encompass millions of species in the alternative. Claims that recite alternatives, especially in the chemical and biotechnological arts, often describe alternatives which themselves have multiple, nested points of variation or other complex variations, or set forth alternatives that lack either a shared utility or a common structure. Markush formats and other forms of alternative language are generally used in two different contexts. First, a chemical compound or a portion thereof (either claimed as such, or as a component of a process or composition), may be defined using Markush language. In *Harnisch* , the court found that the claimed compounds, which were defined as members of a Markush group, had “unity of invention” because they shared a common function as dyes, and shared a substantial structural feature as coumarin compounds. 631 F.2d at 722, 206 USPQ at 305. Current Office practice, stemming from *Harnisch* , is that compounds that are defined by Markush language are directed to a single invention ( *i.e.* , have “unity of invention”) when they “(1) share a common utility, and
(2)share a substantial structural feature essential to that utility.” *See* MPEP 803.02 (8th Ed., Rev. 5, Aug. 2006). Second, entire process steps or components of a claimed invention, rather than a single compound or portion(s) thereof, may be defined using alternative language. According to current Office policy, Markush format is acceptable when defining such process steps or components if all the members of the group possess at least one property in common which is mainly responsible for their function in the claimed relationship, and it is clear from their very nature or from the prior art that all of them possess this property. *See* MPEP 2173.05(h) (8th Ed., Rev. 5, Aug. 2006). *1* . *Example of Markush Format Alternative Language.* Typical examples of apparently straightforward claims using the Markush format can be found in the PCT International Search and Preliminary Examination Guidelines (PCT Guidelines), Chapter 10 (available at *http://www.wipo.int/pct/en/texts/pdf/ispe.pdf* ). Examples of such claims are set forth in paragraphs 10.38—10.45; paragraphs 10.52—10.59 therein address unity of invention issues specifically pertaining to biotechnological inventions. Example 24 from the PCT Guidelines, reproduced below, is illustrative of an apparently straightforward claim which would actually be quite complex to search and examine. 10.44 Example 24 Claim 1: A pharmaceutical compound of the formula: A—B—C—D—E Wherein: A is selected from C <sup>1</sup> -C <sup>10</sup> alkyl or alkenyl or cycloalkyl, substituted or unsubstituted aryl or C <sup>5</sup> -C <sup>7</sup> heterocycle having 1-3 heteroatoms selected from O and N; B is selected from C <sup>1</sup> -C <sup>6</sup> alkyl or alkenyl or alkynyl, amino, sulfoxy, C <sup>3</sup> -C <sup>8</sup> ether or thioether; C is selected from C <sup>5</sup> -C <sup>8</sup> saturated or unsaturated heterocycle having 1-4 heteroatoms selected from O, S or N or is a substituted or unsubstituted phenyl; D is selected from B or a C <sup>4</sup> -C <sup>8</sup> carboxylic acid ester or amide; and E is selected from substituted or unsubstituted phenyl, naphthyl, indolyl, pyridyl, or oxazolyl. This claim reads on approximately 2.564 × 10 23 possible species, there is no substantial feature shared by all species, and there is no indication that the species share a specific common utility. Claims in patent applications, especially those in the chemical and biotechnological arts, are often significantly more complex to search and examine than the apparently straightforward example above. *2* . *Examples of Other (Non-Markush) Alternative Language.* Claims that recite alternatives usually define species that fall within the scope of a claim; however, such claims occasionally recite a list of species that are excluded from the scope of a claim. The most common forms of claims that set forth alternatives employ the phrase “selected from the group consisting” or the term “or.” Other claim limitations written in an alternative form that do not use these phrases include, for example, the following:
(1)“A composition comprising any 10 molecules from Table 1” (wherein Table 1 includes 1000 chemical formulas);
(2)“A protein having SEQ ID NO: 1, wherein any polar residue may be substituted by a proline residue;” or “a protein having SEQ ID NO: 2” (where a review of SEQ ID NO: 2 of the sequence listing shows that at certain positions, specific alternative variations are permitted); and
(3)“A polypeptide consisting of a contiguous 10-mer fragment of SEQ ID NO: 3” (where a review of the sequence listing shows that fully defined SEQ ID NO: 3 is 200 residues long, and thus the claim reads upon plural fragments in the alternative: residues 1-10, residues 2-11, residues 3-12, etc.). *3* . *Example of Alternative Language in Process Claims.* Although the above examples are directed to product claims, process claims also may be drafted in alternative language format. A process claim could, for example, recite a list of alternative active steps or achieve a list of alternative effects. Thus, a process claim employing alternative language could require the same product to achieve different effects, or require different products to achieve the same effect. Furthermore, such a process claim could recite two features which vary. A simple example of such a claim is: “A process of administering product A, B, or C to treat disease D, E, or F.” Such a claim would read upon a matrix of nine species wherein the species do not all require either administering the same product or treating the same disease. C. *Current Practice With Respect to Claims Reciting a Markush Group.* Current Office policy requires examination of all species of a claim that recites a Markush group when the alternatives are sufficiently few in number or so closely related that search and examination can be made without serious burden. *See* MPEP 803.02 (8th Ed., Rev. 5, Aug. 2006). Consistent with the *Harnisch* decision, the Office cannot refuse to examine what applicants regard as their invention unless the subject matter in a claim lacks unity of invention. As a result, even where the search and examination of a claim that has “unity of invention” would require serious burden, the examiner must determine the patentability of the claim. In such case, however, the examiner may require applicant to elect a single species under 37 CFR 1.146 for initial search and examination to facilitate examination on the merits. *I* f the elected species is not allowable, examination of the Markush claim will be limited to the elected species and any species not patentably distinct therefrom, and any separate claims to the elected species and any species not patentably distinct therefrom. *See* MPEP 803.02 (8th Ed., Rev. 5, Aug. 2006). Claims drawn to species patentably distinct from the elected species are held withdrawn from further consideration. If the elected species is allowable, then the search and examination of the Markush claim will be extended to non-elected species to the extent necessary to determine patentability of the claim. This may require a separate search and examination of each alternative claimed, *i.e.* , a separate patentability determination of each non-elected species. The *Harnisch* court did not set forth a generally applicable test for the Office to follow in determining whether, in an application filed under 35 U.S.C. 111(a), alternatives within a claim have “unity of invention,” nor did it suggest a specific mechanism by which the Office could refuse to examine a claim that lacks “unity of invention.” The procedure described in the paragraph above applies when the alternatives within a claim have “unity of invention.” However, to date, the Office has not established official procedures for examiners to follow when examining a claim that recites alternatives wherein the alternatives lack “unity of invention” or for restricting an application to one invention where multiple independent and distinct inventions are recited as alternatives in a single claim. The Office is proposing to revise the rules of practice to provide such procedures. D. *Proposed Treatment of Claims that Recite Alternatives.* In a separate rule making, the Office proposed to revise the rules of practice relating to the examination of claims in patent applications to focus its initial examination on a limited number of claims. *See Changes to Practice for the Examination of Claims in Patent Applications* , 71 FR 61 (Jan. 3, 2006), 1302 *Off. Gaz. Patent Office* 1329 (Jan. 24, 2006) (proposed rule). Applicants should not be permitted to circumvent the proposed claims rules by presenting a single claim that sets forth multiple independent and distinct inventions in the alternative. Although comments were requested regarding how claims that read on multiple species using alternative language should be counted for purposes of proposed 37 CFR 1.75(b)(1), the Office did not propose a specific rule change to address the issue. Furthermore, the comments received from the public did not address the issue of how to treat a single claim that encompasses more than one independent and distinct invention. Regardless of whether the proposed rules pertaining to the number of claims are promulgated, the Office needs to address the challenges created by claims that employ alternative language, particularly Markush language, for the reasons discussed above. As noted above, applicants in all areas of technology have been filing increasing numbers of claims that employ alternative language; the complexity and variety of the format of those claims are also on the rise. To enable the Office to do a better, more thorough and reliable examination of such claims, the Office is proposing rules to limit each claim to a single invention and to define acceptable formats for claims that set forth alternatives. These proposed rules are not intended to change current restriction practice with regard to multiple independent and distinct inventions claimed in separate claims of an application. Rather, they are intended to provide a mechanism by which the Office can require a single claim to be limited to a single invention. 1. *Each claim must be limited to a single invention.* A claim that is directed to multiple independent and distinct inventions would meet the statutory eligibility requirement for restriction set forth in 35 U.S.C. 121: If two or more independent and distinct inventions are claimed in one application, the Director may require the application to be restricted to one of the inventions. * * * 35 U.S.C. 121. Through the use of the word “may,” the statute is permissive, not mandatory, and gives the Director discretion to require restriction. Thus, the Office proposes that if a single claim defines multiple independent and distinct inventions, the examiner may apply a restriction requirement before examination. In determining whether a claim is limited to a single invention, the claim as a whole must be considered; the discrete components of the claim are not to be analyzed in isolation. *See* , *e.g.* , *Diamond* v. *Diehr* , 450 U.S. 175, 188-89, 209 USPQ 1, 9 (1981); *W.L. Gore & Assoc., Inc.* v. *Garlock, Inc.* , 721 F.2d 1540, 1548, 220 USPQ 303, 309 (Fed. Cir. 1983). As a general principle, a claim that encompasses more than one species, but does not list alternatives, defines one generic invention. If such a claim were restricted, the generic invention might never be examined as a whole if the claim were divided into parts. *Weber* , 580 F.2d at 458, 198 USPQ at 330 (“The totality of the resulting fragmentary claims would not necessarily be the equivalent of the original claim.”). Although dividing one generic claim by restriction may not be appropriate under *Weber* , making a requirement for an election of species for initial search and examination purposes would be permissible under § 1.146. This procedure provides a practical way to examine a large genus: Restriction of the members which applicants are permitted to combine in the Markush group evolved from the administrative principle promulgated by the Patent Office that only a single invention can be claimed in a single application. The reason for such a rule is based upon the very real necessity of avoiding multiple searches for a single fee. Consequently, the problem of proper grouping is simply one of administration, and restriction of members which properly may be combined in a Markush group is solely based on the premise that only one invention may be claimed in any one application. Kelly, 37 J. Pat. Off. Soc'y at 171-172. *See also* the Office commentary quoted by the court in *In re Feight* , 181 F.2d 206, 209, 85 USPQ 274, 277 (CCPA 1950): The appellant's position, therefore, amounts to this: that an applicant may include claims to a number of independent inventions in a single application and, by also including one or more claims, however improper, which recite all of these inventions, may compel the Patent Office to act upon the merits of all his claims. The mere statement of this proposition seems sufficient to show its unsoundness since, if accepted, it would be possible for an applicant to obtain an examination of an unlimited number of independent inventions for a single fee, by including in his application a claim which catalogued all of them. If any portion of a claim requires selection from a list of alternatives, then the claim as a whole should be treated as a claim that reads on multiple species using alternative language, and would be subject to the provisions of proposed §§ 1.75(j) and 1.140. For example, the following claims define the same subject matter: 1. A composition comprising component 1 selected from the group consisting of A, B, and C and component 2 selected from the group consisting of D, E, and F. 2. A composition comprising AD, AE, AF, BD, BE, BF, CD, CE, or CF. In the above example, AD, AE, AF, etc., each represent individual alternative species. Determining whether the claimed subject matter is limited to a single invention does not depend on there being a community of properties among the variable members of the Markush expressions themselves (A, B, C, etc.), but rather depends on whether the individual species (AD, AE, AF, etc.) within the scope of the claim define a single invention. This is not always a straightforward task, especially when claims employ complex alternative language. In the 1950s, as a general rule, members of a proper Markush group were not considered to be patentably distinct from each other. *Training Manual for Patent Examiners:* *Outline of Practice Relative to “Markush” Claims* at 11. That practice ended when the court in *Ruff* , quoting MPEP 706.03(y) (2nd ed. 1953), indicated that Markush practice had been liberalized to such an extent that the mere fact that components were claimed as members of a Markush group could not be relied upon to establish the equivalency of these components. 256 F.2d at 599, 118 USPQ at 348. However, the court also observed that an applicant's expressed recognition of an art-recognized or obvious equivalent may be used as evidence that such equivalency does exist. 256 F.2d at 595, 118 USPQ at 345. Similarly, in a later case, the Commissioner of Patents determined that if there is an express admission that claimed species would have been obvious over each other within the meaning of 35 U.S.C. 103, an examiner should not require restriction. *See In re Lee* , 199 USPQ 108, 109 (Comm'r Pat. 1978). In addition to proposing a requirement limiting a claim to a single invention, the Office is proposing to specify that when subject matter that reads on multiple species is defined in a single claim using alternative language, the claim is limited to a single invention when at least one of the following two conditions is met:
(1)All of the species encompassed by the claim share a substantial feature essential for a common utility, or
(2)all of the species are *prima facie* obvious over each other. The first definition is based on the guidance provided by the CCPA in *In re Harnisch.* The second definition codifies the long-standing principle that it is improper to restrict between species that are *prima facie* obvious over each other. The Office proposes to encourage applicants, when filing a claim that employs alternative language, to provide an explanation as to why the claim is directed to a single invention. Applicant may explain, for example, that the species share a substantial feature essential for a common utility. The feature could be a common structure, material, or act necessary for at least one shared specific, substantial, and credible utility ( *i.e.* , 35 U.S.C. 101 utility). Alternatively, applicant may explain that the species are *prima facie* obvious over each other. When applicant submits an explanation in a timely manner, the examiner will fully consider it. If convincing, the examiner will not object to the claim as being directed to more than one invention, nor will restriction be required under proposed § 1.140. Where the examiner disagrees with an applicant's statement under proposed § 1.140(b), the examiner must provide an explanation why applicant's statement is not convincing and why the claim is not limited to a single invention. The Office is of the opinion that providing applicants with the opportunity to explain upon filing why a claim that reads on multiple species using alternative language complies with the proposed rule ultimately will reduce the number of restriction requirements and shorten the overall time to a first Office action on the merits of the claims. As noted above, the Office proposal defines two ways in which a claim that employs alternative language would meet the requirement of being limited to a single invention. However, a claim that encompasses more than one embodiment by using generic terminology ( *i.e.* , without requiring selection from of a list of alternatives) would not be subject to the provisions of § 1.140. For example, a claim reciting the generic limitation “a means for attaching,” in the context of a specification that discloses staples, tape, and glue as suitable means would encompass several species. However, the “means for attaching” limitation would not subject the claim to the provisions of § 1.75(j) or
(k)or § 1.140 because the claimed invention does not require, and is not limited to, the means specifically disclosed in the specification. By contrast, a claim reciting the limitation “an attachment means selected from the group consisting of staples, glue, or tape” would be subject to the provisions of proposed § 1.75(j) and
(k)and § 1.140. The Office also proposes that if an application seeks the benefit under title 35, United States Code, of a prior-filed application and discloses subject matter that was not disclosed in the prior-filed application, the applicant must identify which claim or claims in the application are disclosed in the manner provided by the first paragraph of 35 U.S.C. 112 in the prior-filed application. This proposal would reduce examination complexities and identify situations wherein a prior art reference that anticipates or renders *prima facie* obvious at least one species within the scope of a claim would not be available as prior art against another species if that species was set forth in a separate claim. *2* . *Format Requirements for a Claim With Species Presented as a Set of Alternatives.* Under current practice, a claim that sets forth multiple independent and distinct inventions in the alternative via Markush format is examined in accordance with MPEP 803.02. Applicants frequently present claims that define alternative species in a complex manner, *e.g.* , defining alternatives by reference to a set of additional alternatives, setting forth alternatives that encompass the same species, and listing components that are not interchangeable as alternatives. Given the administrative difficulties that arise during the search and examination of claims that present species using alternative language and the proposal to require each claim to be limited to a single invention, the Office proposes to require a simplified format for the presentation of such claims and to set forth conditions that must be met by any claim that uses alternative language. It is generally understood that “members of [a] Markush group are * * * alternatively usable for the purposes of the invention.” *In re Driscoll* , 562 F.2d 1245, 1249, 195 USPQ 434, 436 (CCPA 1977). Similarly, with regard to international applications, the PCT Guidelines (paragraph 5.18) specifies that a claim can contain alternatives “provided those alternatives are of a similar nature and can fairly be substituted one for another, and provided also that the number and presentation of alternatives is a single claim does not make the claim obscure or difficult to construe.” The Office proposes to adopt language similar to that in the PCT Guidelines, specifically requiring that the number and presentation of alternatives in the claim not make the claim difficult to construe, and requiring that each alternative within a list of alternatives must be substitutable one for another. In addition, to reduce the complexity of determining whether a claim is directed to a single invention, the Office proposes to specify that no alternative may itself be defined as a set of further alternatives. Finally, the Office proposes to specify that no alternative may be encompassed by any other alternative within a list of alternatives, unless there is no other practical way to define the invention. When alternatives partially overlap in scope, it is more difficult to determine whether a single claim encompasses more than one invention. Thus, a single claim that includes alternatives that either fully overlap ( *e.g.* , “selected from the group consisting of an adhesive agent, tape, and glue”) or partially overlap ( *e.g.* , “selected from the group consisting of citrus fruits and tropical fruits”) in scope may be subject to an objection. Applicants should file a series of individual claims from the broadest scope that they feel they are entitled to the narrowest scope they are willing to accept. Put differently, applicant should narrow the scope of protection sought via separate claims and not via nested sets of overlapping alternatives. Discussion of Specific Rules Title 37 of the Code of Federal Regulations, Part 1, is proposed to be amended as follows: *Section 1.75:* Section 1.75(a) is proposed to be amended by adding the proviso that a claim must be limited to a single invention. While it has long been Office policy to exercise the discretionary authority granted in 35 U.S.C. 121 to restrict an application to a single invention, the Office has not yet established mechanisms for objecting to the format of a single claim that is directed to multiple independent and distinct inventions, or restricting a single claim to a single invention. Proposed § 1.75(a) would provide the basis for objecting to the format of a claim that is directed to two or more independent and distinct inventions. *See also* the proposed addition of § 1.140, which provides for the restriction of a claim to a single invention, and the proposed amendment to § 1.142(b), which provides that the propriety of a requirement for restriction will be determined without regard to whether the plural inventions are recited in separate claims or as alternatives within a single claim. Section 1.75(d)(2) is proposed to be amended by deleting the reference to § 1.141 to § 1.146 as unnecessary in view of proposed changes to those rules. Paragraph (d)(2) is also proposed to be amended by adding the proviso that if an application seeks the benefit under title 35, United States Code, of a prior-filed application and discloses subject matter that was not disclosed in the prior-filed application, the applicant must identify which claim or claims in the application are disclosed in the manner provided by the first paragraph of 35 U.S.C. 112 in the prior-filed application. Section 1.75(e) is proposed to be amended to replace “the nature of the case admits, as in the case of” with “the application describes a claimed invention as” to use more current terminology. Paragraphs (e)(1) and (e)(3) are proposed to be amended to replace the word “combination” with “invention” to clarify that this provision is applicable to any claimed invention, not just one considered to be a combination. Section 1.75(j) is proposed to be added to set forth the required format for a claim that reads on multiple species using alternative language. A claim that does not comply with the provisions of this section would be subject to an objection. The Office proposes to add paragraph (j)(1) to specify that the number and presentation of alternatives in a claim must not make the claim difficult to construe. The proposed rule language is consistent with that of the PCT Guidelines (paragraph 5.18). Paragraphs (j)(2) and (j)(3) are proposed to be added to specify that no alternative can itself be defined as a set of further alternatives within a claim and that no alternative can be encompassed by any other alternative within a list of alternatives, unless there is no other practical way to define the invention. Section 1.75(j)(4) is proposed to be added to require each alternative within a list of alternatives to be substitutable one for another. The proposed rule is consistent with paragraph 5.18 of the PCT Guidelines and current Office practice ( *see* MPEP 2173.05(h)). Thus a claim that employs alternative language would not be in a proper format unless all of the alternatives are interchangeable, and substitution of one for another would result in the same invention. Section 1.75(k) is proposed to be added to specify that a claim must be self-contained, without incorporating another part of the specification or drawings by reference, unless there is no other practical way to define the invention. If a claim incorporates another part of the specification or drawings by reference, and that portion of the specification or drawings defines a set of alternatives, the claim must comply with, and is subject to the provisions of, paragraph
(j)of this section and § 1.140. This section is proposed to be added to ensure that a claim would receive the same treatment whether defined by alternative language explicitly set forth in the claim or defined by alternative language that is incorporated by reference to another portion of the specification. *Section 1.140:* Section 1.140 is proposed to be added to require a claim to be limited to a single invention in applications filed under 35 U.S.C. 111(a). Paragraph
(a)is proposed to be added to specify that a claim presenting alternatives must be limited to a single invention, and to specify that a claim would be considered as limited to a single invention where all the species encompassed by the claim meet at least one of the following two conditions:
(i)Share a substantial feature essential for a common utility, or
(ii)are *prima facie* obvious over each other. Alternatives share a substantial feature necessary for a common utility when they share a utility that complies with the requirements of 35 U.S.C. 101. A substantial feature in this context is a feature, such as a particular structure, material, or act, without which the claimed alternatives would not retain the shared utility. Paragraph
(b)is proposed to be added to indicate that the presentation of a claim that reads on multiple species using alternative language may be accompanied by a statement explaining why the claim is limited to a single invention. This would provide the applicant with the opportunity to present an explanation as to why a claim is limited to a single invention before the Office determines whether an objection under proposed § 1.75(a) or a restriction requirement under proposed § 1.142 would be proper. *Section 1.141:* Section 1.141(a) is proposed to be revised by replacing “may not” with the more permissive term “should not” in the context of claiming two or more independent and distinct inventions in one application. The proposed revision is consistent with current practice as the Director has not made restriction mandatory. Furthermore, the “exception” language in paragraph (a), i.e., that different species may be specifically claimed in different claims provided the application also includes an allowable claim generic thereto, is proposed to be deleted. If the application includes an allowable generic claim, restriction would be improper and the generic claim would define a single invention. Section 1.141(b) is proposed to be revised to clarify when restriction would be appropriate where an application claims a product, a process of making that product, and a process of using that product. The proposed revision clarifies that a three-way restriction requirement can be made only where the process of making the product is distinct from the product, the process of using the product is distinct from the product, and the processes of making and using the product are distinct from each other. *Section 1.142:* Section 1.142(a) is proposed to be revised to specify that the provisions therein authorize restriction requirements in applications filed under 35 U.S.C. 111(a). The content of current paragraph
(b)of § 1.142 is proposed to be moved to paragraph
(d)and further modified. Section 1.142(b) as proposed recites that the propriety of a restriction requirement will be determined without regard to whether plural inventions are recited in separate claims or as alternatives within a single claim. This proposal, which substantively corresponds to § 1.475(e) (pertaining to unity of invention determinations in National Stage applications filed under 35 U.S.C. 371), provides support for an intra-claim restriction requirement, *i.e.* , a requirement to limit a single claim to a single invention. Section 1.142(c) is proposed to be added to incorporate subject matter from current paragraph
(b)and indicate that any claim limited solely to a non-elected invention, if not cancelled, is withdrawn from further consideration, although it is subject to reinstatement in the event the restriction requirement is withdrawn. Section 1.142(d) is proposed to be added to provide that any claim that recites both an elected invention and a non-elected invention will be objected to as failing to comply with § 1.75(a), which requires each claim to be limited to a single invention. Section 1.142(d) as proposed would also provide that any non-elected invention must be canceled before a claim that recites both an elected invention and a non-elected invention would be allowed (subject to reconsideration and review as provided in §§ 1.143, 1.144, and 1.181). *Section 1.143:* Section 1.143 is proposed to be revised to add a new paragraph (a), and to move the current paragraph, with clarifying revisions, to new paragraph (b). Paragraph
(a)is proposed to be added to specify that the election of an invention or species may be made with or without traverse, although traversal is necessary to preserve the right to petition. Paragraph
(b)is proposed to be revised to indicate that the applicant must indicate an election of one invention or species for prosecution, and that any request for reconsideration of the requirement must distinctly and specifically point out supposed errors in the requirement. *Section 1.144:* Section 1.144 is proposed to be revised to clarify when an applicant may petition the Director to review the requirement for restriction. Paragraph
(a)as proposed requires a timely request for reconsideration of the requirement. Paragraph
(b)as proposed provides that a petition may be filed after a restriction requirement is made final or a second requirement for restriction is made, even if the second requirement is not made final, whereas the present rule requires a final restriction requirement before petitioning. Proposed paragraph
(b)also sets forth when a petition must be filed, *i.e.* , within the earlier of two months of the mailing date of the final requirement for restriction from which relief is requested or the filing of a Notice of Appeal. Paragraph
(c)is proposed to be added to specify that a petition before the second requirement will be dismissed as premature, and that filing a petition does not obviate applicant's obligation to timely reply to the remainder of the action. Paragraph
(d)is proposed to be added to specify that the two-month period for filing the petition is not extendable and that late filed petitions may be dismissed as untimely. *Section 1.145:* Section 1.145 is proposed to be revised by specifying that after an Office action on an application, if the applicant presents by amendment one or more claims directed to an invention distinct from and independent of the invention previously claimed, the applicant may be required to restrict the claims to the invention previously claimed if the amendment is entered, subject to reconsideration and review as provided in §§ 1.143, 1.144 and 1.181. The current rule indicates applicant “will” be required to restrict, and does not reference § 1.181. *Section 1.146:* Section 1.146 is proposed to be revised to permit an examiner, in the course of examining a claim directed to a single invention that encompasses multiple patentably distinct species, to require an election of one disclosed species of the claim for initial search and examination purposes. Section 1.146(b) is proposed to be added to specify that the examiner may require the applicant to restrict a claim that was subject to an election requirement under paragraph
(a)of this section to the one or more species that were searched and examined if any species encompassed by the claim is not patentable. Under current practice, before searching the prior art for the claimed invention, an examiner makes an initial determination as to whether the claims presented are directed to a single invention or multiple independent and distinct inventions. If a single claim encompasses multiple species, the examiner may require a provisional election of a single species. *See* MPEP 803.02 and 809. Under the proposed rule, when a claim encompasses multiple species, an examiner may continue to require a provisional election of a single disclosed species, even if a claim is limited to a single invention. For example, if a specification discloses staples, tape, and glue as exemplary “means for attaching,” an applicant may present one claim reciting the limitation “a means for attaching” (which clearly includes within its scope multiple species) and in addition present one or more claims that specify the particular means. If each species that employs a specific means is patentably distinct from the other species, the “means for attaching” claim would be a claim that links together otherwise restrictable inventions. If an applicant elects a particular means in reply to a requirement for a provisional election of a single disclosed species and the examiner determines that species is allowable, the examiner would be required, consistent with current practice, to continue to examine the “means for attaching” claim until a determination on the patentability of the claim is reached. If the “means for attaching” claim is allowable, then any claim that depends from or otherwise requires all the limitations of the allowable claim would be examined for patentability and the provisional election would no longer be effective. In addition to being applicable to a claim that defines multiple species using generic terminology, *i.e.* , without requiring selection of an alternative, the proposed provision would also apply to a claim that uses alternative language. Evidence that supports a finding that one species does not comply with the requirements of 35 U.S.C. 101 or 112 would not necessarily support a finding of lack of utility, enablement, or adequate written description with regard to any other species. Thus, where the elected species is patentable but the claims are not enabled or adequately described over their entire scope, the proposed rule would permit an examiner to require restriction of the claims to the elected species (and allowable obvious variants thereof). *Section 1.499:* This section is proposed to be revised by designating the currently undesignated paragraph as paragraph
(a)and adding new paragraphs (b), (c), and (d). Paragraph
(b)is proposed to be added to address treatment of a claim limited solely to a non-elected invention in a national stage application. The language corresponds to that in proposed § 1.142(c). Paragraph
(c)is proposed to be added to indicate that any claim in a national stage application that recites in the alternative both an elected and a non-elected invention will be objected to as failing to comply with § 1.475. The language is analogous to that in proposed § 1.142(d). Paragraph
(d)is proposed to be added to set forth that if, after an Office action in a national stage application, the applicant presents by amendment one or more claims directed to an invention that lacks unity of invention (§ 1.475) with the invention previously claimed, the applicant may be required to restrict the claims to the invention previously claimed if the amendment is entered, subject to reconsideration and review as provided in §§ 1.143, 1.144 and 1.181. The language is analogous to that it proposed § 1.145. Rule Making Considerations *Administrative Procedure Act:* As discussed previously, the court in *Harnisch* invited the Office to exercise its rule making authority under former 35 U.S.C. 6(a) to anticipate and forestall the “procedural problems” surrounding Markush claims. 631 F.2d at 722 n.7, 206 USPQ at 306 n.7. Therefore, these rule changes involve interpretive rules, or rules of agency practice and procedure. *See Bachow Communs., Inc.* v. *FCC* , 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an application process are “rules of agency organization, procedure, or practice” and exempt from the Administrative Procedure Act's notice and comment requirement); *see also Fressola* v. *Manbeck* , 36 USPQ2d 1211, 1215 (D.D.C. 1995) (“it is extremely doubtful whether any of the rules formulated to govern patent or trade-mark practice are other than `interpretive rules, general statements of policy, * * * procedure, or practice.’ ”) (quoting C.W. Ooms, *The United States Patent Office and the Administrative Procedure Act* , 38 Trademark Rep. 149, 153 (1948)). Therefore, the changes being proposed in this notice involve interpretive rules, or rules of agency practice and procedure. Accordingly, prior notice and an opportunity for public comment were not required pursuant to 5 U.S.C. 553(b)(A) (or any other law). Nevertheless, the Office is seeking public comment on proposed changes to obtain the benefit of such input prior to adopting changes to the rules of practice on these issues. *Regulatory Flexibility Act:* As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), neither a regulatory flexibility analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are required. *See* 5 U.S.C. 603. *Executive Order 13132:* This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). *Executive Order 12866:* This rule making has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993), as amended by Executive Order 13258 (Feb. 26, 2002) and Executive Order 13422 (Jan. 18, 2007). *Paperwork Reduction Act:* This notice involves information collection requirements which are subject to review by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The collections of information involved in this notice have been reviewed and previously approved by OMB under OMB control numbers: 0651-0031, and 0651-0032. The United States Patent and Trademark Office is not resubmitting the other information collections listed above to OMB for its review and approval because the changes in this notice do not affect the information collection requirements associated with the information collections under these OMB control numbers. The principal impacts of the changes in this proposed rule are to:
(1)Expressly require that a claim be limited to a single invention; and
(2)specify the conditions under which a claim that reads on multiple species by using alternative language to list species) will be treated as limited to a single invention. Interested persons are requested to send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and
(2)Robert A. Clarke, Deputy Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects in 37 CFR Part 1 Administrative practice and procedure, Inventions and patents, Lawyers. For the reasons set forth in the preamble, 37 CFR part 1 is proposed to be amended as follows: PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 continues to read as follows: Authority: 35 U.S.C. 2(b)(2). 2. Section 1.75 is amended by revising paragraphs (a), (d)(2), and (e), and adding paragraphs
(j)and
(k)to read as follows: § 1.75 Claims.
(a)The specification must conclude with a claim particularly pointing out and distinctly claiming the subject matter which the applicant regards as his or her invention or discovery. A claim must be limited to a single invention.
(d)* * *
(2)If an application seeks the benefit under title 35, United States Code, of a prior-filed application and discloses subject matter that was not disclosed in the prior-filed application, the applicant must identify which claim or claims in the application are disclosed in the manner provided by the first paragraph of 35 U.S.C. 112 in the prior-filed application.
(e)Where the application describes a claimed invention as an improvement, any independent claim should contain in the following order:
(1)A preamble comprising a general description of all the elements or steps of the claimed invention which are conventional or known;
(2)A phrase such as “wherein the improvement comprises”; and
(3)Those elements, steps, and/or relationships which constitute that portion of the claimed invention which the applicant considers as the new or improved portion.
(j)A claim that reads on multiple species by using alternative language must meet the following conditions:
(1)The number and presentation of alternatives in the claim does not make the claim difficult to construe;
(2)No alternative is defined as a set of further alternatives within the claim; and
(3)No alternative is encompassed by any other alternative within a list of alternatives, unless there is no other practical way to define the invention.
(4)Each alternative within a list of alternatives must be substitutable one for another.
(k)A claim may not incorporate another part of the specification or drawings by reference, unless there is no other practical way to define the invention. If a claim incorporates another part of the specification or drawings by reference, and that portion of the specification or drawings sets forth alternatives, the claim must comply with, and is subject to the provisions of, paragraph
(j)of this section and § 1.140. 3. Section 1.140 is added after the undesignated center heading “Joinder of Inventions in One Application; Restriction” to read as follows: § 1.140 Requirement for a claim to be limited to a single invention in an application filed under 35 U.S.C. 111(a).
(a)Two or more independent and distinct inventions may not be claimed in a single claim. See § 1.75(a). A claim that reads on multiple species using alternative language is limited to a single invention when all the species encompassed by the claim meet at least one of the following two conditions:
(1)The species share a substantial feature essential for a common utility, or
(2)The species are *prima facie* obvious over each other.
(b)The presentation of a claim that reads on multiple species using alternative language (§ 1.75(j)) may be accompanied by a statement explaining why the claim is limited to a single invention. Such a statement shall be considered by the Office if filed by the applicant at the same time as the presentation of such a claim and may be considered by the Office if filed by the applicant after the presentation of such a claim but before the mailing date of any restriction requirement or action on the merits. 4. Section 1.141 is revised to read as follows: § 1.141 Different inventions in one application filed under 35 U.S.C. 111(a).
(a)Two or more independent and distinct inventions should not be claimed in one application.
(b)Where claims to a product, process of making the product, and process of using the product are included in an application, a three-way requirement for restriction can be made only where the process of making the product is distinct from the product, the process of using the product is distinct from the product, and the processes of making and using the product are distinct from each other. 5. Section 1.142 is revised to read as follows: § 1.142 Requirement for restriction to a single invention in an application filed under 35 U.S.C. 111(a).
(a)If two or more independent and distinct inventions are claimed in a single application filed under 35 U.S.C. 111(a), the examiner in an Office action may require the applicant in the reply to that action to elect an invention to which the claims will be restricted, this official action being called a requirement for restriction. Such requirement will normally be made before any action on the merits; however, it may be made at any time before final action.
(b)The propriety of a requirement for restriction shall be determined without regard to whether the plural inventions are recited in separate claims or as alternatives within a single claim.
(c)Any claim limited solely to a non-elected invention, if not canceled, is withdrawn from further consideration. Any claim withdrawn from further consideration as a result of a restriction requirement and election is subject to reinstatement in the event the restriction requirement is withdrawn or overruled.
(d)Any claim that recites both an elected and a non-elected invention in the alternative will be objected to as failing to comply with § 1.75(a). Any non-elected invention must be canceled before the claim will be allowed, subject to reconsideration and review as provided in §§ 1.143, 1.144 and 1.181. 6. Section 1.143 is revised to read as follows: § 1.143 Reconsideration of requirement for restriction.
(a)The election of an invention or species may be made with or without traverse. To preserve a right to seek reconsideration or petition for review of a requirement for restriction, the election must be with traverse.
(b)If the applicant traverses a requirement for restriction, he or she may request reconsideration of the requirement, including withdrawal or modification, distinctly and specifically pointing out supposed errors in the requirement. In requesting reconsideration, the applicant must indicate an election of one invention or species for prosecution, which invention or species shall be the one elected in the event the requirement becomes final. The requirement for restriction will be reconsidered on such a request. 7. Section 1.144 is revised to read as follows: § 1.144 Petition from requirement for restriction.
(a)Applicant may petition the Director to review the requirement for restriction. A petition will not be considered unless reconsideration of the requirement was timely requested (see § 1.143).
(b)A petition may be filed after the requirement for restriction is made final or a second requirement for restriction is made, even if the second requirement is not final. The petition must be filed within the earlier of:
(1)Two months of the mailing date of the final requirement for restriction from which relief is requested; or
(2)The filing of a Notice of Appeal.
(c)A petition filed before the earlier of a final restriction requirement or a second requirement for restriction will be dismissed as premature. Filing a petition does not obviate applicant's obligation to timely reply to the remainder of the action.
(d)The two-month period for filing a petition is not extendable. Late filed petitions may be dismissed as untimely (see § 1.181). 8. Section 1.145 is revised to read as follows: § 1.145 Subsequent presentation of claims for a different invention in an application filed under 35 U.S.C. 111(a). If, after an Office action on an application, the applicant presents by amendment one or more claims directed to an invention distinct from and independent of the invention previously claimed, the applicant may be required to restrict the claims to the invention previously claimed if the amendment is entered, subject to reconsideration and review as provided in §§ 1.143, 1.144 and 1.181. 9. Section 1.146 is revised to read as follows: § 1.146 Requirement for an election of a single species in an application filed under 35 U.S.C. 111(a).
(a)If one or more claims are directed to a single invention but encompass multiple disclosed and patentably distinct species, regardless of whether the claim uses alternative language, the examiner may require the applicant to elect one species that is disclosed in the application as filed for initial search and examination.
(b)The examiner may require the applicant to restrict any claim that was subject to an election requirement under paragraph
(a)of this section to the one or more species that were searched and examined if any species encompassed by the claim is not patentable. 10. Section 1.499 is revised to designate the current paragraph as paragraph
(a)and to add paragraphs (b), (c), and
(d)to read as follows: § 1.499 Unity of invention during the national stage.
(b)Any claim limited solely to a non-elected invention, if not canceled, will be withdrawn from further consideration. Any claim withdrawn from further consideration is subject to reinstatement in the event the restriction requirement is withdrawn or overruled.
(c)Any claim that recites in the alternative both an elected and a non-elected invention will be objected to as failing to comply with § 1.475. Any non-elected invention must be canceled before the claim will be allowed, unless the restriction requirement is withdrawn or overruled.
(d)If, after an Office action on an application, the applicant presents by amendment one or more claims directed to an invention that lacks unity of invention (§ 1.475) with the invention previously claimed, the applicant may be required to restrict the claims to the invention previously claimed if the amendment is entered, subject to reconsideration and review as provided in §§ 1.143, 1.144 and 1.181. Dated: August 2, 2007. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E7-15591 Filed 8-9-07; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R04-RCRA-2007-0016; FRL-8451-7] Florida: Proposed Authorization of State Hazardous Waste Management Program Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: Florida has applied to EPA for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant final authorization to Florida. In the “Rules and Regulations” section of this **Federal Register** , EPA is authorizing the changes by an immediate final rule. EPA did not make a proposal prior to the immediate final rule because we believe this action is not controversial and do not expect comments that oppose it. We have explained the reasons for this authorization in the preamble of the immediate final rule. Unless we get written comments which oppose this authorization during the comment period, the immediate final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we receive comments that oppose this action, we will withdraw the immediate final rule and it will not take effect. We will respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. DATES: Comments must be received on or before September 10, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-RCRA-2007-0016 by one of the following methods: • *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *E-mail:* *johnson.otis@epa.gov.* • *Fax:*
(404)562-9964 (prior to faxing, please notify the EPA contact listed below). • *Mail:* Send written comments to Otis Johnson, Permit and State Programs Section, RCRA Programs/Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, The Sam Nunn Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303. • *Hand Delivery:* Otis Johnson, Permit and State Programs Section, RCRA Programs/Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, The Sam Nunn Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R04-RCRA-2007-0016. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. (For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* ). *Docket:* All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy. You may view and copy Florida's application at The EPA, Region 4, The Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303 from 8 a.m. to 4 p.m. Monday through Friday, excluding legal holidays. The office telephone number is
(404)562-8041. You may also view and copy Florida's application from 8 a.m. to 5 p.m. at The Florida Department of Environmental Protection, Twin Towers Building, 2600 Blair Stone Road, MS 4560, Tallahassee, Florida 32399-2400. FOR FURTHER INFORMATION CONTACT: Otis Johnson, Permits and State Programs Section, RCRA Programs/Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, The Sam Nunn Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303;
(404)562-8481; fax number:
(404)562-9964; email address: *johnson.otis@epa.gov.* SUPPLEMENTARY INFORMATION: For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this **Federal Register** . Dated: July 13, 2007. J.I. Palmer, Jr., Regional Administrator, Region 4. [FR Doc. E7-15671 Filed 8-9-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 195 [Docket No. PHMSA-2007-28136] Pipeline Safety: Hazardous Liquid Pipelines Transporting Ethanol, Ethanol Blends, and other Biofuels AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT). ACTION: Notice of policy statement and request for comments. SUMMARY: The Department of Transportation (DOT), in coordination with the Department of Energy, Department of Agriculture, and others, is considering current and future transportation challenges posed by growing demand for ethanol and other biofuels and biofuel blends. Although pipelines have long been a primary mode for high volume transportation of gasoline and other petroleum products, most biofuels used in the U.S. today are transported exclusively by marine vessel, rail, and/or highway. In support of the President's energy agenda, DOT is prepared to facilitate pipeline options by sponsoring research and development, resolving technical issues, and, if necessary, clarifying safety standards. The PHMSA is the DOT agency with regulatory authority over the safe and reliable transportation of hazardous materials by all modes, including pipelines. The PHMSA's Hazardous Materials Regulations govern the transportation of ethanol and other biofuels and blends by rail, air, motor carrier, and barge. The PHMSA's Pipeline Safety Regulations cover the transportation by pipeline of all petroleum products, including gasoline blended with biofuel. In this Notice, PHMSA sets forth a formal determination (for purposes of 49 U.S.C. 60101(a)(4)(B)) that the transportation of unblended biofuels by pipeline is subject to the agency's jurisdiction and invites comments on the adequacy of existing regulatory definitions and standards. This Notice also describes and invites comments on the agency's ongoing efforts to identify and address the short-, medium-, and long-term opportunities and challenges associated with transporting biofuels. The PHMSA is seeking comments on technical issues, adequacy of standards, and research and development needs associated with the transportation of biofuels by pipeline. We describe and invite comments on the agency's ongoing efforts to prepare communities and emergency responders to mitigate hazards associated with transportation involving new fuels. DATES: Please submit comments by September 10, 2007. ADDRESSES: Comments should reference Docket No. PHMSA-2007-28136 and may be submitted in the following ways: • *DOT Web Site: http://dms.dot.gov.* To submit comments on the DOT electronic docket site, click “Comment/Submissions,” click “Continue,” fill in the requested information, click “Continue,” enter your comment, then click “Submit.” • *Fax:* 1-202-493-2251. • *Mail:* Docket: U.S. Department of Transportation, Docket Operations, M-30, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *E-Gov Web Site: http://www.regulations.gov.* This site allows the public to enter comments on any **Federal Register** notice issued by any agency. *Instructions:* Identify the docket number, PHMSA-2007-28136, at the beginning of your comments. Mail your comments and send two copies. To receive confirmation that PHMSA received your comments, include a self-addressed stamped postcard. Internet users may submit comments at *http://www.regulations.gov,* and may access all comments received by DOT at *http://dms.dot.gov* by performing a simple search for the docket number. Note: The PHMSA posts all comments without changes or edits to *http://dms.dot.gov,* including any personal information provided. Privacy Act Statement Anyone can search the electronic form of all comments received in response to any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). DOT's complete Privacy Act Statement was published in the **Federal Register** on April 11, 2000 (65 FR 19477), and is on the Web at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Joy Kadnar, Office of Pipeline Safety, 202-366-4595, or by e-mail at *joy.kadnar@dot.gov;* Larry White, Office of Chief Counsel, 202-366-4400, or by e-mail at *lawrence.white@dot.gov;* or Bob Richard, Office of Hazardous Materials Safety, 202-366-0656, or by e-mail at *bob.richard@dot.gov.* SUPPLEMENTARY INFORMATION: Background *Energy Policy and the Growing Demand for Biofuels.* In August 2005, the President signed the Energy Policy Act of 2005, providing incentives for the development of renewable energy and establishing the foundation for the increased production and use of ethanol and other biofuels. Building on the Energy Policy Act's clean energy foundation, the President announced the Advanced Energy Initiative in the 2006 State of the Union Address. The Advanced Energy Initiative focuses on increasing research and development to encourage technological breakthroughs in the transportation and power sectors that will diversify our resource portfolio. Together, these initiatives will reduce U.S. reliance on foreign oil by increasing the use of renewable fuels, such as ethanol and other biofuels. Today, nearly half of all U.S. gasoline contains some ethanol (mostly blended at the 10 percent level or lower). In 2006, the U.S. consumed roughly five billion gallons of biofuels (mostly ethanol); these five billion gallons were blended into roughly 65 billion gallons of gasoline. Federal energy policy favors rapid growth in biofuels over the next decade. In his 2007 State of the Union Address, President Bush challenged the Nation to reduce consumption of oil by 20 percent over the next ten years. The President's 20-in-10 plan calls for expanding consumption of alternative fuels (including biofuels) from five billion gallons in 2007 to 35 billion gallons in 2017. *Transportation Requirements.* In support of the 20-in-10 plan, DOT is stepping up efforts to identify and address transportation issues associated with increased use of biofuels. Because our national transportation system is fueled largely by refined petroleum products, the transition to higher concentration biofuel blends has implications for most DOT programs, including fuel efficiency and safety programs administered by DOT's National Highway Traffic Safety Administration. This Notice focuses specifically on the movement of biofuels and biofuel blends as commodities in transportation and the need for safe, cost-effective transportation solutions. Most ethanol in use today is transported from production or import locations by highway, rail, and/or barge and blended with gasoline at or near the point of retail distribution. To sustain market growth needed to meet current targets, we believe that pipelines must be an option for high-volume transportation of biofuel products. A large pipeline can transport roughly two million barrels of gasoline a day. By way of comparison, 9,375 large semi-truck tankers are required to transport two million barrels of product. It takes twenty-four 100-car unit trains extending three miles each, or ten 15-unit barge tows, to transport two million barrels. Trucks, vessels, and trains consume diesel or other liquid fuels and also contribute to congestion in our Nation's freight and passenger transportation corridors. Further, as the National Transportation Safety Board has observed, pipeline transportation has a consistently lower accident rate than other modes. *Facilitating Transportation Solutions.* Within the Federal Government, PHMSA has regulatory responsibility for the protection of people, property, and the environment from the risks of pipeline transportation. The agency carries out this responsibility through regulation, oversight, enforcement, emergency response preparation, and research and development, all targeted at reducing the likelihood and consequence of pipeline incidents. The PHMSA's Integrity Management regulations for hazardous liquid pipelines require operators to develop and implement comprehensive plans for addressing the range of risks facing their pipelines, taking account of all relevant risk variables, including the nature and properties of the particular hazardous materials moved. The PHMSA is working with other Federal agencies and a broad enterprise of stakeholders—including industry, standards organizations, and emergency responders—to ensure that adequate design and operating standards for biofuel pipelines are in place or, if necessary, can be further developed in accordance with current pipeline data and technology. The American Petroleum Institute
(API)and the Association of Oil Pipe Lines
(AOPL)have provided PHMSA with information on their progress analyzing safety and integrity issues associated with biofuel pipelines and shared a proposed research agenda with PHMSA and other agencies. The PHMSA has begun a technical assessment with the Pipeline Research Council International on the potential for ethanol induced stress corrosion cracking in existing pipeline infrastructure used to transport ethanol and various ethanol blended fuels. Using its authority under chapter 601 of the U.S. Code, PHMSA expanded its research and development efforts to focus on short-, medium- and long-term challenges of transporting biofuels in existing products pipelines and in dedicated biofuel pipelines. The PHMSA participates on various panels and working groups, including the DOT Biofuels Panel and the 20-in-10 Biofuels Working Group, and collaborates on biofuel activities with other agencies and organizations. To better understand the opportunities, challenges, and potential technical issues, PHMSA invited speakers to its February 2007 Research and Development Forum in New Orleans, Louisiana to discuss current standards and technical studies and to identify research and development gaps related to biofuel transportation by pipeline. As discussed more fully below, PHMSA has also partnered with the emergency response community to upgrade education and training efforts and develop optimal response techniques and procedures for responding to biofuel spill incidents. 1. Pipeline Research and Development—Invitation To Comment The PHMSA is targeting some of its research and development activity at advancing the most promising technologies for the safe operation of biofuel pipelines. The challenge is to identify and quantify any safety and reliability threats to biofuel pipelines and to remove or manage these threats through a risk-based, data driven integrity management approach. Although pipelines are highly efficient, they have not been used on a widespread basis for transporting gasoline-ethanol blends. This is partially a function of unresolved technical and operational issues that would affect both the use of existing products pipelines and the prospect of building new, dedicated biofuel pipelines. These include metallurgical issues, such as internal corrosion and stress corrosion cracking, and operational issues, including the performance of seals, gaskets and internal coatings. The PHMSA expects these technical issues to be resolved through ongoing short-term technical assessments and longer-range research and development. The risk of product contamination is also a significant factor. The PHMSA understands that the industry is concerned about the ability of transported gasoline-ethanol blends to meet the ASTM specification for gasoline, D 4814—Standard Specification for Automotive Spark-Ignition Engine Fuel due to ethanol's sensitivity to water. The U.S. pipeline system is a “wet system” with moisture introduced from the transport of various products. Unless measures are undertaken to remove or control moisture in the system, ethanol and ethanol blends could potentially absorb water and arrive at destination off specification. Additionally, many pipeline segments may need to undergo preparatory cleaning to remove built up lacquers, gums, and deposits in the system. Otherwise, the solvency effect of ethanol could remove such deposits, potentially contaminating the ethanol and trailing products in the system. These issues are challenging, but by no means insurmountable. Research and development focusing on metallurgical, operational, and maintenance issues should aid in their resolution and will build confidence in the use of pipelines as the primary carrier of large volumes of gasoline-ethanol blends. The PHMSA is reaching out to a broad enterprise of stakeholders to better understand and help address all anticipated challenges to the transportation of biofuels and biofuel blends by pipeline. We will partner with other agencies, standards organizations, and private industry to coordinate research projects to avoid redundant efforts. The research strategy put forward by API and AOPL, for example, suggests an approach that: A. Identifies which blends can be moved in existing systems with little or no modification to the system; B. Identifies which blends can be moved in existing systems with appreciable modifications; and C. Identifies which blends cannot be practically moved in existing systems but could be moved in specially designed new transmission or short-haul distribution systems. Research would be focused on the near-term operational and system integrity issues associated with transporting blends such as E10, E20 and E85 in existing petroleum products pipelines. Issues that need to be addressed include water pick-up, phase separation, material effects, solvent effects, the use of drag reducing agents, transmix injection and processing, and other ways operational processes may be affected. The PHMSA encourages researchers to identify pipeline system modifications that address the unique risks associated with biofuels without rendering the pipeline unsuitable for transporting traditional energy commodities and identify those blends that cannot be practically transported in pipelines without a major overhaul. Additional research would focus on the potential for integrity threats, such as stress corrosion cracking, associated with the long-term use of existing pipeline infrastructure and dedicated biofuel pipelines. This research should lead to the development of long-term mitigation strategies, design and operating specifications, and guidelines for the construction of new pipelines dedicated to ethanol or biofuel service. The PHMSA recently issued a Broad Agency Announcement seeking white papers on research and development projects and coordinated programs to address issues associated with transportation of ethanol and biofuels by pipeline. The PHMSA is requesting information from pipeline operators, standards development bodies and organizations, trade associations, government agencies, other organizations, and the public regarding research and development, the adequacy of existing standards, and any other pertinent issues related to ethanol and other biofuels transportation by pipeline. Ultimately, the goal is to work with standards developing organizations to move this new knowledge into consensus standards. 2. Emergency Response—Invitation To Comment The PHMSA has a long-standing partnership with the emergency response community. We have taken steps to educate responders on hazard communication and identification, safe incident mitigation, and fire suppression measures for responding to spill incidents involving ethanol and other biofuels in transportation. Because of ethanol's characteristics, specific emergency response measures must be taken by pipeline operators and first responders in the event of a release, including the use of appropriate extinguishing agents and foams. The PHMSA has partnered with the National Association of State Fire Marshals (NASFM), the Renewable Fuels Association (RFA), the International Association of Fire Chiefs (IAFC), the National Fire Protection Association, the Independent Liquid Terminal Association (ILTA), the National Fire Protection Association (NFPA), Kidde Fire Fighting, and other organizations and individuals in order to assist in educating first responders in fighting ethanol fires. The primary purpose of this coalition is to bring together key stakeholders to share information on various projects and efforts. A number of projects have been initiated that involve testing of various foams and other extinguishing agents, as well as the development of training materials for emergency responders. In June 2006, PHMSA issued a Safety Alert to provide emergency responders with guidance on appropriate procedures for responding to incidents involving fuel mixtures containing ethanol ( *http://hazmat.dot.gov/E-85_042606.pdf* ). In addition, PHMSA provides Hazardous Material Emergency Preparedness Grants to emergency responders for planning and training, including training for responses to incidents involving ethanol-gasoline mixtures. To help emergency responders utilize the most effective emergency response procedures for incidents involving fuel mixtures containing ethanol (or “ethyl alcohol”) and gasoline in various concentrations, PHMSA has proposed establishing a specific United Nations
(UN)identification number and proper shipping name for ethanol-gasoline blended fuels with more than ten percent ethanol. In August 2006, PHMSA published a Notice of Proposed Rulemaking, proposing to add a new entry “Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than ten percent ethanol, 3, UN3475, II” to the Hazardous Materials Table (HMT). The PHMSA also proposed revising the entry for “Gasohol gasoline mixed with ethyl alcohol, with not more than 20 percent alcohol, 3, NA1203, II” to limit this entry to gasoline mixtures with no more than ten percent alcohol. The 2004 Emergency Response Guidebook (ERG2004) refers to Guide 127 (Flammable Liquids Polar/Water-Miscible) for response to incidents involving Alcohols, n.o.s., 3, UN1987, and Denatured alcohol, 3, NA1987. Guide 127 specifies the use of alcohol resistant foam. In early 2008, PHMSA will publish and distribute an updated ERG. The updated ERG will include appropriate guidance for the initial response to incidents involving ethanol-gasoline mixtures and will also include information on pipeline markers. The PHMSA encourages State fire marshals and other first responders to inform us about issues associated with emergency response for biofuel incidents including the need for studies of the effectiveness of response techniques and the development of educational materials. We are interested in comments relative to how mixtures of ethanol and gasoline varying between 10 percent to 20 percent should be addressed and if additional research is needed to assess particular characteristics of these mixtures, how they should be described, and the appropriate response methods. 3. Oversight of Pipelines Transporting Biofuels and Biofuel Blends—Invitation To Comment Pursuant to the pipeline safety laws, 49 U.S.C. 60101 *et seq.* , PHMSA has jurisdiction over the design, construction, operation and maintenance of pipelines transporting “hazardous liquids.” By statute, the term “hazardous liquid” refers to “petroleum or a petroleum product” and “a substance the Secretary of Transportation decides may pose an unreasonable risk to life or property” when transported by pipeline in a liquid state. 49 U.S.C. 60101(a)(4). Under this authority, PHMSA previously has established safety standards for pipelines carrying petroleum, petroleum products, anhydrous ammonia, and carbon dioxide in a supercritical or dense vapor state. The PHMSA considers all biofuel-gasoline blends to be “petroleum products,” within the meaning of 49 CFR 195.2, regardless of their relative biofuel/gasoline content. Accordingly, any pipeline used to transport such blends, whether in batches or in dedicated infrastructure, would be subject to PHMSA's existing standards for hazardous liquid pipelines. Under those standards, the pipeline operator is responsible for establishing that any material moved in the pipeline “is chemically compatible with both the pipeline, including all components, and any other commodity that it may come into contact with while in the pipeline.” (49 CFR 195.4). Unblended ethanol and other biofuels produced by biological fermentation and vegetable- and animal-oil based biodiesel products are not “petroleum products,” as we have defined that term (49 CFR 195.2). However, based on their physical properties, these substances clearly meet the alternative definition of “hazardous liquid” under 49 U.S.C. 60101(a)(4)(B). Ethanol is a highly flammable liquid with explosive limits in the range of 3.5 percent to 19 percent in air and a flash point of 54 degrees Fahrenheit. (By comparison, the explosive range for natural gas varies between five and 15 percent in air. Substances with a flash point lower than 100 degrees Fahrenheit are considered flammable.) The flash point of an ethanol-water mixture increases as ethanol is diluted with water. The flash point of an 80 percent ethanol/water mix is about 75 degrees Fahrenheit, and for 70 percent ethanol-water mix is about 84 degrees Fahrenheit. Ethanol vapors are also combustible, heavier than air, and may form an explosive mixture when combined with air. Similar to highly volatile liquids, ethanol vapors may travel considerable distances to sources of ignition and flash back. Pure or highly concentrated ethanol (E-85) may permanently damage living tissue on contact. Exposure to ethanol vapors in high concentrations or for prolonged periods is harmful to human health. In concentrations greater than 50 percent, ethanol can cause local dehydration and lesions. Absorption, which occurs swiftly from the gastrointestinal tract, causes euphoria, with subsequent dizziness, inebriation, paralysis, diminished reflex, excitability, cyanosis, narcosis and respiratory paralysis. For these reasons, ethanol and other biofuels are substances that may pose “unreasonable risks to life or property,” within the meaning of 49 U.S.C. 60101(a)(4)(B)). Accordingly, these materials constitute “hazardous liquids” for purposes of the pipeline safety laws and regulations. The PHMSA is considering whether it is necessary to amend the definition of hazardous liquid in 49 CFR 195.2 to expressly include ethanol and biofuels. Such an amendment would confirm that the transportation of pure ethanol or biofuels by dedicated biofuel pipelines is subject to Part 195. If biofuels will always be denatured by blending them with petroleum products prior to transporting them by pipeline, however, amending this regulatory definition may be unnecessary. Accordingly, PHMSA invites comments on whether we should amend 49 CFR Part 195 to expressly include (non-blended) ethanol and biofuels in the definition of hazardous liquid. The PHMSA also seeks comments on whether any of the existing requirements for hazardous liquid pipelines in Part 195 should not apply to ethanol and biofuel pipelines and if not, why not. Additionally, we invite comments on whether there is a need for any requirements to specifically address pipelines transporting ethanol and biofuels. After PHMSA reviews any comments and other information received in response to this notice, we will announce any additional activities PHMSA plans to undertake or coordinate in these areas. If we determine, after reviewing the comments, that Part 195 should be amended to address the transportation of biofuel or biofuel-gasoline blends, we will publish any proposed amendment for public comment in accordance with the Administrative Procedures Act. Authority: 49 U.S.C. 60101 *et seq.* Issued in Washington, DC on July 31, 2007. Thomas J. Barrett, Administrator. [FR Doc. E7-15615 Filed 8-9-07; 8:45 am] BILLING CODE 4910-60-P 72 154 Friday, August 10, 2007 Notices ADVISORY COUNCIL ON HISTORIC PRESERVATION Notice of Meeting AGENCY: Advisory Council on Historic Preservation. SUMMARY: Notice is hereby given that the Advisory Council on Historic Preservation
(ACHP)will meet on Friday, August 17, 2007. The meeting will be held in Room MR-1 at the Vicksburg, MS at 9 a.m. The ACHP was established by the National Historic Preservation Act of 1966 (16 U.S.C. 470 *et seq.* ) to advise the President and Congress on national historic preservation policy and to comment upon Federal, federally assisted, and federally licensed undertakings having an effect upon properties listed in or eligible for inclusion in the National Register of Historic Places. The ACHP's members are the Architect of the Capitol; the Secretaries of the Interior, Agriculture, Defense, and Transportation; the Administrators of the Environmental Protection Agency and General Services Administration; the Chairman of the National Trust for Historic Preservation; the President of the National Conference of State Historic Preservation Officers; a Governor; a Mayor; a Native American; and eight non-Federal members appointed by the President. The agenda for the meeting includes the following: Call to Order—9 a.m. I. Chairman's Welcome. II. Preservation Awards Presentation. III. Report of the Native American Advisory Group. IV. Implementation of ACHP Recommendations from the Preserve America Summit. A. Implementation Strategy and Actions. B. Preserve America/Save America's Treasures Authorizing Legislation. V. Gulf Coast Recovery Efforts of the Mississippi, Louisiana, and Alabama State Historic Preservation Offices. VI. Preservation Initiatives Committee. A. Legislative Update. B. Preserve America and the National Park Service Centennial Challenge. VII. Federal Agency Programs Committee. A. Alternate Procedures of Corps of Engineers' Appendix C. B. Guidelines for Agency Preparation of Section 3 Reports. C. Tribal Notification Process for Regional and National Section 106 Initiatives. D. National Park Service Battlefield Landscape Restoration Initiative. VIII. Communications, Education, and Outreach Committee. A. 2008 Preserve America Presidential Award Nominations. B. Media and Communications Outreach. IX. Chairman's Report. A. ACHP Alumni Foundation. B. ACHP FY 2009 Budget Request. X. Executive Director's Report. XI. New Business. XII. Adjourn. Note: The meetings of the ACHP are open to the public. If you need special accommodations due to disability, please contact the Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Room 803, Washington, DC, 202-606-8503, at least seven
(7)days prior to the meeting. FOR FURTHER INFORMATION: Additional information concerning the meeting is available from the Executive Director, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., #803, Washington, DC 20004. Dated: August 5, 2007. John Fowler, Executive Director. [FR Doc. 07-3897 Filed 8-9-07; 8:45 am]
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  • 29 CFR 24.3
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  • 29 CFR 2560
  • Pub. L. 109-280
  • 120 Stat. 780
  • 29 CFR 2560.502
  • 5 CFR 1320.4(a)(2)
  • Pub. L. 104-4
  • 33 CFR 334
  • 40 Stat. 266
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F. App'x173 F.3d 811
SCOTUS429 U.S. 274
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