Notices. Notice of proposed rulemaking (NPRM)

51,132 words·~232 min read·/register/2007/12/19/07-6074

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

BILLING CODE 6100-22-S 72 243 Wednesday, December 19, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0347; Directorate Identifier 2007-NM-253-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A330 and A340 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Two A330 operators have reported that the guide shaft of the Refuel Isolation Valve has been broken away from the main casting and entered the fuel tank. The Supplier Investigation evidenced that water builds-up in the cavity of the Refuel Isolation Valve and freezes during flight. When refuel pressure is applied to the piston, the ice restricts the piston travel on one side leading to an asymmetric movement of the piston resulting in breakage of the guide shaft. A non-bonded metallic object within the fuel tank can result [in] a potential ignition source, which in combination with a lightning strike constitutes an unsafe condition. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by January 18, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1138; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0347; Directorate Identifier 2007-NM-253-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Airworthiness Directive 2007-0239, dated September 3, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Two A330 operators have reported that the guide shaft of the Refuel Isolation Valve has been broken away from the main casting and entered the fuel tank. The Supplier Investigation evidenced that water builds-up in the cavity of the Refuel Isolation Valve and freezes during flight. When refuel pressure is applied to the piston, the ice restricts the piston travel on one side leading to an asymmetric movement of the piston resulting in breakage of the guide shaft. A non-bonded metallic object within the fuel tank can result [in] a potential ignition source, which in combination with a lightning strike constitutes an unsafe condition. For the reasons described above, this Airworthiness Directive

(AD)requires replacement of the affected Refuel Isolation Valve with a more robust valve similar to that designed for the A380. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued Service Bulletins A330-28-3103; A340-28-4120; and A340-28-5044; all dated July 17, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 34 products of U.S. registry. We also estimate that it would take about 14 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $8,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $310,080, or $9,120 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a 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. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Airbus:** Docket No. FAA-2007-0347; Directorate Identifier 2007-NM-253-AD. Comments Due Date

(a)We must receive comments by January 18, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to the Airbus Model A330 and A340 airplanes identified in paragraphs (c)(1) and (c)(2) of this AD; certificated in any category; all certified models; all serial numbers.

(1)Model A330 and A340 airplanes except those on which Airbus Modification 55664 has been embodied in production or Airbus Service Bulletin A330-28-3103, A340-28-4120, or A340-28-5044 has been embodied in service.

(2)Model A330-300 series airplanes on which Airbus Modification 40176 (optional LH (left hand) coupling) has been embodied in production or Airbus Service Bulletin A330-28-3018 (optional LH coupling) has been embodied in service; except those on which Airbus Modification 56148 has been embodied in production or Airbus Service Bulletin A330-28-3103 has been embodied in service. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Two A330 operators have reported that the guide shaft of the Refuel Isolation Valve has been broken away from the main casting and entered the fuel tank. The Supplier Investigation evidenced that water builds-up in the cavity of the Refuel Isolation Valve and freezes during flight. When refuel pressure is applied to the piston, the ice restricts the piston travel on one side leading to an asymmetric movement of the piston resulting in breakage of the guide shaft. A non-bonded metallic object within the fuel tank can result [in] a potential ignition source, which in combination with a lightning strike constitutes an unsafe condition. For the reasons described above, this Airworthiness Directive

(AD)requires replacement of the affected Refuel Isolation Valve with a more robust valve similar to that designed for the A380. Actions and Compliance

(f)Unless already done, do the following actions in accordance with the instructions defined in Airbus Service Bulletin A330-28-3103, A340-28-4120, or A340-28-5044, all dated July 17, 2007, as applicable.

(1)Within 18,000 flight hours from the effective date of this AD: Replace the refuel isolation valve(s); and re-identify the refuel/defuel coupling in accordance with the instructions defined in the applicable service bulletin.

(2)For refuel Isolation Valve and Refuel/Defuel Coupling Spare units: From the effective date of this AD, no person may install an affected refuel isolation valve unit or an affected refuel/defuel coupling unit as a replacement part on an aircraft, unless it has been modified in accordance with the instructions defined in the applicable service bulletin. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1138; fax

(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI EASA Airworthiness Directive 2007-0239, dated September 3, 2007, and Airbus Service Bulletins A330-28-3103, A340-28-4120, and A340-28-5044, all dated July 17, 2007, for related information. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24519 Filed 12-18-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0346; Directorate Identifier 2007-NM-202-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-300, -400, and -500 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for certain Model 737-300, -400, and -500 series airplanes. This proposed AD would require an inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service unit and the lavatory and attendant box assemblies, corrective action if necessary, and other specified action. This proposed AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are proposing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event. DATES: We must receive comments on this proposed AD by February 4, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax* : 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, 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. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Susan Letcher, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6474; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0346; Directorate Identifier 2007-NM-202-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received a report indicating that several passenger masks with broken in-line flow indicators were found following a mask deployment, on a Boeing Model 777-200 series airplane. Operators subsequently found several more broken in-line flow indicators after examining the oxygen mask assemblies on other Model 777 series airplanes and on Model 747-400 series airplanes. Investigation revealed that certain flow indicators are weaker and can fracture because of internal residual stresses caused by the flow indicator joint design and manufacturing processes. Fractures cause the in-line flow indicator to separate and consequently prevent oxygen flow to the mask during an emergency. This condition, if not corrected, could result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event. The oxygen masks on certain Model 777 airplanes and Model 747-400 series airplanes have the same flow indicators as those installed on certain Model 737-300, -400, and -500 series airplanes. Therefore, the Model 737-300, -400, and -500 series airplanes may be subject to the identified unsafe condition. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletin 737-35-1099, dated April 9, 2007. The service bulletin describes procedures for doing a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service unit

(PSU)and the lavatory and attendant box assemblies. The service bulletin also describes procedures for doing the corrective action if necessary and other specified action. The corrective action includes repairing any B/E Aerospace oxygen mask assembly with a manufacturing date after January 1, 2002, and before March 1, 2006. The service bulletin also specifies that as an alternative to doing the repair (rework), the oxygen mask assembly may be replaced with a new oxygen mask outside the scope of the service bulletin. The other specified action includes doing the oxygen mask drop test. Boeing Special Attention Service Bulletin 737-35-1099 refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for repairing the oxygen mask assembly. B/E Aerospace Service Bulletin 174080-35-01 describes procedures for modifying the oxygen mask assembly by replacing the flow indicator, part number (P/N) 118023-02, with an improved flow indicator, P/N 118023-12. B/E Aerospace Service Bulletin 174080-35-01 also specifies that, as an alternative to modifying the oxygen mask, operators may replace the oxygen mask with a new oxygen mask having the improved flow indicator. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Clarification Between the Proposed AD and Service Bulletin Although Boeing Special Attention Service Bulletin 737-35-1099 specifies to repair the oxygen mask assembly, the intent of the service bulletin is to replace it with either a new or modified oxygen mask assembly having an improved flow indicator. Therefore, this proposed AD would require replacing the oxygen mask assembly with a new or modified oxygen mask assembly having an improved flow indicator. Costs of Compliance There are about 1,956 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 646 airplanes of U.S. registry. The proposed actions would take about 16 work hours per airplane, for an average of 180 oxygen masks per airplane distributed in about 45 PSU/oxygen boxes, at an average labor rate of $80 per work hour. Required parts would cost about $6 per oxygen mask, or $1,080 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $1,524,560, or $2,360 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0346; Directorate Identifier 2007-NM-202-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by February 4, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Boeing Model 737-300, -400, and -500 series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 737-35-1099, dated April 9, 2007. Unsafe Condition

(d)This AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are issuing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspection and Related Investigative/Corrective Actions if Necessary

(f)Within 60 months after the effective date of this AD, do a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service unit and the lavatory and attendant box assemblies, and do the applicable corrective action and other specified action, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-35-1099, dated April 9, 2007; except where the service bulletin specifies repairing the oxygen mask assembly, replace it with a new or modified oxygen mask assembly having an improved flow indicator. The corrective action and other specified action must be done before further flight. Note 1: Boeing Special Attention Service Bulletin 737-35-1099 refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for modifying the oxygen mask assembly by replacing the flow indicator with an improved flow indicator. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Due to the recalculation of loads for the Multi Role Transporter and Tanker

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tom Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1622; fax

(MRTT)aircraft, it has been found that a structural reinforcement at the aft section of the fuselage (FR (frame) 87-FR91) is required for A300-600 aircraft and A310 aircraft with a Trim Tank installed. * * * The unsafe condition is the potential loss of structural integrity in the aft section of the fuselage between FR87 through FR91, inclusive, during extreme rolling and vertical maneuver combinations. The corrective action is reinforcing the structure at FR91. Related investigative and corrective actions (reinforcement) include: • Doing a rotating probe inspection for cracking of the fastener holes; • Reaming the fastener holes; and • Contacting Airbus for repair instructions and repairing any crack found in any reamed fastener hole. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued Service Bulletins A310-53-2126 and A300-53-6156, both dated November 28, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 160 products of U.S. registry. We also estimate that it would take about 129 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $5,840 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,585,600, or $16,160 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a 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. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Airbus:** Docket No. FAA-2007-0345; Directorate Identifier 2007-NM-194-AD. Comments Due Date

(a)We must receive comments by January 18, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Airbus Model A310-304, -322, -324, and -325 airplanes, certificated in any category, all serial numbers, except those which have received in service application of Airbus Service Bulletin A310-53-2126 (Airbus modification No. 13011). This AD also applies to Airbus A300 Model B4-601, B4-603, B4-605R, B4-620, B4-622, B4-622R, F4-605R, F4-622R, and C4-605R Variant F airplanes (commonly called Model A300-600 series airplanes), certificated in any category, all serial numbers, except those which have received application of Airbus modification No. 13273 in production or application of Airbus Service Bulletin A300-53-6156 in service. Subject

(d)Air Transport Association

(ATA)of America Code 53: Fuselage. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Due to the recalculation of loads for the Multi Role Transporter and Tanker

(f)Unless already done, do the following actions.

(1)Within 2,500 flight cycles after the effective date of this AD, reinforce the aft section of the fuselage, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-53-2126 or Service Bulletin A300-53-6156, as applicable, both dated November 28, 2006. Do all related and investigative corrective actions, as applicable, before further flight. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No difference. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tom Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1622; fax

(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI EASA Airworthiness Directive 2007-0173, dated June 18, 2007; Airbus Service Bulletin A310-53-2126, dated November 28, 2006; and Airbus Service Bulletin A300-53-6156, dated November 28, 2006; for related information. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24523 Filed 12-18-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0344; Directorate Identifier 2007-NM-149-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 767-200 and -300 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for certain Boeing Model 767-200 and -300 series airplanes. This proposed AD would require replacing the wire segments of the four Fuel Quantity Indicating System

(FQIS)wire bundles with new, improved wire segments. This proposed AD results from operator inspections of the FQIS wire bundles that revealed corrosion at the connections between the ground wire and shield of each of the four FQIS wire bundles. We are proposing this AD to prevent this corrosion, which could reduce system protection of the lightning shield and result in loss of the electrical grounding between the lightning shield and the airplane structure. This condition, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by February 4, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, 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. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Philip Sheridan, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6441; fax

(FQIS)wire bundles revealed corrosion at the connections between the ground wire and shield of each of the four wire bundles, on certain Boeing Model 767-200 and -300 series airplanes. Corrosion occurred at the ferrules, which were used for connection of the ground wire. The wire bundle shielding is part of the system protection against a lightning strike. The corrosion reduces system protection against a lightning strike. This condition, if not corrected, could result in loss of the electrical grounding between the lightning shield and the airplane structure. Loss of the electrical grounding between the lightning shield and the airplane structure, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 767-28A0064, Revision 2, dated October 27, 2005. The service bulletin describes procedures for replacing the wire segments of the four FQIS wire bundles with new, improved wire segments. The service bulletin also describes procedures for an operational test of the FQIS following the replacement. Accomplishing the actions specified in the service bulletin is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service bulletin described previously, except as discussed under “Difference Between the Proposed AD and Service Bulletin.” Difference Between the Proposed AD and Service Bulletin The service bulletin recommends accomplishing the replacement of the wire segments of the four FQIS wire bundles within 48 months after the release date of the service bulletin, but we have determined that this compliance time would not address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for this AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the replacement. In light of all of these factors, we find a compliance time of 36 months after the effective date of the AD for completing the required replacement to be warranted, in that it represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. This difference has been coordinated with Boeing. Costs of Compliance There are about 608 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 169 airplanes of U.S. registry. The proposed replacement would take about 42 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would cost about $1,756 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $864,604, or $5,116 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0344; Directorate Identifier 2007-NM-149-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by February 4, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Boeing Model 767-200 and -300 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 767-28A0064, Revision 2, dated October 27, 2005. Unsafe Condition

(d)This AD results from operator inspections of the Fuel Quantity Indicating System

(FQIS)wire bundles that revealed corrosion at the connections between the ground wire and shield of each of the four FQIS wire bundles. We are issuing this AD to prevent this corrosion, which could reduce system protection of the lightning shield and result in loss of the electrical grounding between the lightning shield and the airplane structure. This condition, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Replacement

(f)Within 36 months after the effective date of this AD: Replace the wire segments of the four FQIS wire bundles with new, improved wire segments, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-28A0064, Revision 2, dated October 27, 2005. Credit for Actions Done Using Previous Service Information

(g)Actions accomplished before the effective date of this AD in accordance with Boeing Alert Service Bulletin 767-28A0064, Revision 1, dated February 21, 2002, are considered acceptable for compliance with the corresponding actions specified in this AD. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24531 Filed 12-18-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 11 RIN 1076-AE67 Law and Order on Indian Reservations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Proposed rule. SUMMARY: The Bureau of Indian Affairs proposes to amend its regulations governing the Courts of Indian Offenses (otherwise known as CFR Courts). This amendment will clarify the authority of the Assistant Secretary—Indian Affairs to establish the courts, the jurisdiction of the courts, its relationship to tribal governments and the Department of the Interior, and to provide those courts with an updated code of laws. DATES: Comments must be received on or before January 18, 2008. ADDRESSES: You may submit comments, identified by the number 1076-AE67, by any of the following methods: • *Federal rulemaking portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* Joseph Little, Office of Justice Services, Bureau of Indian Affairs, 1001 Indian School Road, NW.; Albuquerque, NM 87104. FOR FURTHER INFORMATION CONTACT: Joseph Little

(505)563-3833. SUPPLEMENTARY INFORMATION: The authority to issue this amendment is vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9, and 25 U.S.C. 13 which authorize appropriations for “Indian judges.” This rule is published in the exercise of the rulemaking authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in the Departmental Manual at 209 DM 8. Background *This proposed amendment:*

(1)Provides for the establishment of courts when tribal justice systems do not exist;

(2)Updates the listing of Indian reservations to which the Code applies;

(3)Clarifies the provision on jurisdictional limitations, which excludes from jurisdiction under this part Federal or state employees acting within the scope of their employment;

(4)Adds provisions for drug abuse, abuse of psychotoxic substances, child abuse, prostitution, and family violence; and

(5)Increases the maximum penalties for various offenses in the Code. The increased penalties are proposed in response to the law enforcement provisions of the Anti-Drug Abuse Act of 1986, amending the sentencing limitations of the Indian Civil Rights Act, 25 U.S.C. 1302. Tribal courts may impose maximum fines up to $5,000 and sentences of imprisonment up to one year. Section 11.100, Listing of Courts of Indian Offenses, does not defeat the inherent sovereignty of a tribe to establish tribal courts and exercise jurisdiction under tribal law. *Tillett* v. *Lujan,* 931 F.2d 636, 640 (10th Cir. 1991) (CFR courts “retain some characteristics of an agency of the federal government” but they “also function as tribal courts”); *Combrink* v. *Allen,* 20 Indian L. Rep. 6029, 6030 (Ct. Ind. App., Tonkawa, Mar. 5, 1993) (CFR court is a “federally administered tribal court”); *Ponca Tribal Election Board* v. *Snake,* 17 Indian L. Rep. 6085, 6088 (Ct. Ind. App., Ponca, Nov. 10, 1988) (“The Courts of Indian Offenses act as tribal courts since they are exercising the sovereign authority of the tribe for which the court sits.”) A clarifying sentence has been added to the jurisdictional limitations section to express unambiguously that Federal or state employees acting within the scope of their employment are not subject to the jurisdiction of Courts of Indian Offenses. The new offenses are abuse of psychotoxic chemical solvents and a dangerous drug offense. They are also proposed to enhance the ability of law enforcement agencies on Indian reservations to prevent and penalize the possession, use and/or distribution of illegal controlled substances. Prostitution was inadvertently omitted from a prior revision of the Law and Order Code and is, therefore, included here. The crime is a continuation of the provision contained in 25 CFR part 11 which has been in force for many years, with the addition of the crime of solicitation which is intended to facilitate the prosecution of persons soliciting for prostitutes. Child abuse and neglect has been added as a separate criminal offense. Although there is some overlapping of these offenses and the sexual assault provisions of the revised Law and Order Code, the abuse provision is much broader and will give prosecutors more flexibility in protecting children from abuse. The family violence subpart establishes a new procedure for acts of family violence. This approach to family violence reflects the decision set forth in *Thurman* v. *City of Torrington,* 595 F. Supp. 1521 (D. Conn. 1984). Thurman filed an action against the City alleging a violation of equal protection for the City's failure to provide the same type of protection to persons in a family relationship as it provides to other abused persons. The court, finding that Thurman had a cause of action under the equal protection clause, held that the City had an affirmative duty to treat family partners as it would other abused persons. The knowledge that arrests deter subsequent family violence has resulted in all states passing some type of special legislation for acts of family violence. Forty-eight states have warrant-less arrest provisions and many have special protective orders. This subpart is drawn from those statutes. The proposed amendment will not require additional staffing for these courts. It is not anticipated that this revision will have a significant effect on the annual caseload of these courts because it does not enlarge their jurisdiction. Prosecutors must routinely use their discretion in balancing their workloads with the time and prosecutorial resources available. Likewise, in sentencing convicted defendants, judges are acutely aware of the constraints imposed by limited jail space. Because we do not foresee any economic effect on Courts of Indian Offenses as a result of these amendments, there will be no requirement of additional outlays by the Federal Government or the tribes affected by the proposed amendments. These amendments affect a very small segment of the population and a well-defined group within the Indian community. Because consultation has taken place with this identified group and by being substantively involved in the development of these amendments, the Bureau of Indian Affairs is publishing this rule with a 30-day comment period. Further, a 30-day comment period is necessary because these amendments must be published and become effective as soon as possible to address the chronic abuse of controlled substances in Indian country, in particular methamphetamine. Regulatory Planning and Review (Executive Order 12866) In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB makes the final determination under Executive Order 12866.

(a)This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The establishment of an average Court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this court will be with the Bureau of Indian Affairs.

(b)This rule will not create inconsistencies with other agencies' actions. The Department of the Interior through the Bureau of Indian Affairs has the sole responsibility and authority to establish Courts of Indian Offenses on Indian reservations.

(c)This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. The establishment of Court of Indian Offenses will not affect any program rights of any Indian tribe. Its primary function will be to administer justice for misdemeanor offenses within Indian country. The court's criminal jurisdiction will be limited to criminal offenses provided in 25 CFR part 11 and the Law and Order Code of Indian tribes as applicable.

(d)This rule will not raise novel legal or policy issues. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in

(e)the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9, and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in * United States * v. *Clapox,* 35 F. 575 (D. Ore. 1888). Regulatory Flexibility Act The Department of the Interior, Bureau of Indian Affairs, certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). An initial Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. The amendment to 25 CFR 11.100(a) updates the list of Court of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area of Indian country. Accordingly, there will be no impact on any small entities. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a)Does not have an annual effect on the economy of $100 million or more. The establishment of an average Court of Indian Offenses is estimated to cost less than $200,000 per court to operate annually. The cost associated with the operation of these courts will be with the Bureau of Indian Affairs.

(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This is a court established primarily for the administration of misdemeanor justice for Indians located within the boundaries of Indian country and will not have any cost or price impact on any other entities in the geographical region.

(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. These are courts established primarily for the administration of misdemeanor justice for Indians located within the boundaries of Indian country, and will not have an adverse impact on competition, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ):

(a)This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The establishment of a Court of Indian Offenses will not have jurisdiction to affect any rights of the small governments. Its primary function will be to administer justice for misdemeanor offenses within the boundaries of Indian country. Its jurisdiction will be limited to criminal offenses provided in 25 CFR part 11.

(b)This rule will not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Takings Implication Assessment (Executive Order 12630) In accordance with Executive Order 12630, the rule does not have significant takings implication. A takings implication assessment is not required. The amendments to 25 CFR part 11 will establish Courts of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area of Indian country. Federalism (Executive Order 13132) In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in *United States* v. *Clapox* , 35 F. 575 (D. Ore. 1888). Civil Justice Reform (Executive Order 12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of Sections 3(a) and 3(b)(2) of the Order. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in *United States* v. *Clapox,* 35 F. 575 (D. Ore. 1888). Part 11 also requires the establishment of an appeals court; hence, the judicial system defined in Executive Order 12988 will not normally be involved in this judicial process. Consultation With Indian Tribes (Executive Order 13175) Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. The amendment to 25 CFR part 11 does not automatically apply to all of the 561 federally recognized tribes, except when it is determined that the administration of justice has failed on an Indian reservation and that the establishment of the provisional Court of Indian Offenses is necessary until that tribe establishes a tribal court to provide for a law and order code and judicial system to deal with law and order within the exterior boundaries of its Indian reservation. The Department of the Interior establishes a provisional court, to fulfill its trust responsibility towards tribal governments and complies with the unique government-to-government relationship that exists between the Federal Government and Indian tribes. Paperwork Reduction Act This amendment to the regulation does not require information collection under the Paperwork Reduction Act. National Environmental Policy Act We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required. The establishment of a Court of Indian Offenses conveys personal jurisdiction over the criminal misdemeanor actions of Indians with the exterior boundaries of Indian country. Data Quality Act In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-544). Effects on the Energy Supply (Executive Order 13211) This rule does not have a significant effect on the nation's energy supply, distribution, or use as defined by Executive Order 13211. Clarity of This Regulation We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: • Be logically organized; • Use the active voice to address readers directly; • Use clear language rather than jargon; • Be divided into short sections and sentences; and • Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments as instructed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the specific sections that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public view, we cannot guarantee that we will be able to do so. List of Subjects in 25 CFR Part 11 Courts, Indians—law, Law enforcement, Penalties. Dated: August 29, 2007. Carl J. Artman, Assistant Secretary—Indian Affairs. **Editorial Note:** The Office of the Federal Register received this document on December 7, 2007. For the reasons set out in the preamble, the Bureau of Indian Affairs proposes to amend Part 11 of Chapter I of Title 25 of the Code of Federal Regulations as set forth below. PART 11—COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE 1. The authority citation for 25 CFR part 11 continues to read as follows: Authority: 5 U.S.C. 301; R.S. 463; 25 U.S.C. 2; R.S. 465; 25 U.S.C. 9; 42 Stat. 208; 25 U.S.C. 13; 38 Stat. 586; 25 U.S.C. 200. 2. Revise Subpart A to read as follows: Subpart A—Application; Jurisdiction Sec. 11.100 Where are Courts of Indian Offenses established? 11.102 What is the purpose of this part? 11.104 When does this part apply? 11.106 Who is an Indian for purposes of this part? 11.108 How are tribal ordinances affected by this part? 11.110 How are tribal customs affected by this part? 11.112 Reserved. 11.114 What is the criminal jurisdiction of the Court of Indian Offenses? 11.116 What is the civil jurisdiction of a Court of Indian Offenses? 11.118 What are the jurisdictional limitations of the Court of Indian Offenses? § 11.100 Where are Courts of Indian Offenses established?

(a)Unless indicated otherwise in this title, these Courts of Indian Offenses are established and the regulations in this part apply to the Indian country (as defined in 18 U.S.C. 1151 and by Federal court precedent) occupied by the following tribes:

(1)Te-Moak Band of Western Shoshone Indians (Nevada);

(2)Ute Mountain Ute Tribe (Colorado);

(3)Tribes located in the former Oklahoma Territory (Oklahoma) that are listed in paragraph

(b)of this section;

(4)Tribes located in the former Indian Territory (Oklahoma) that are listed in paragraph

(c)of this section;

(5)Winnemucca Indian Tribe; and

(6)Santa Fe Indian School Property, including the Santa Fe Indian Health Hospital, and the Albuquerque Indian School Property (land held in trust for the 19 Pueblos of New Mexico).

(b)This part applies to the following tribes located in the former Oklahoma Territory (Oklahoma):

(1)Apache Tribe of Oklahoma;

(2)Caddo Nation of Oklahoma;

(3)Comanche Nation;

(4)Delaware Nation;

(5)Fort Sill Apache Tribe of Oklahoma;

(6)Kiowa Tribe of Oklahoma;

(7)Otoe-Missouria Tribe of Oklahoma; and

(8)Wichita and Affiliated Tribes of Oklahoma.

(c)This part applies to the following tribes located in the former Indian Territory (Oklahoma):

(1)Choctaw Nation;

(2)Seminole Nation;

(3)Eastern Shawnee Tribe;

(4)Miami Tribe;

(5)Modoc Tribe;

(6)Ottawa Tribe;

(7)Peoria Tribe;

(8)Quapaw Tribe; and

(9)Wyandotte Nation. § 11.102 What is the purpose of this part? It is the purpose of the regulations in this part to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian country where tribes retain jurisdiction over Indians that is exclusive of state jurisdiction but where tribal courts have not been established to exercise that jurisdiction. § 11.104 When does this part apply?

(a)The regulations in this part continue to apply to each tribe listed in § 11.100(a) until either:

(1)BIA and the tribe enter into a contract or compact for the tribe to provide judicial services; or

(2)The tribe has put into effect a law and order code meeting the requirements of paragraph

(b)of this section that establishes a court system.

(b)When a tribe adopts a legal code and establishes a judicial system, the tribe must notify the Assistant Secretary—Indian Affairs or his or her designee.

(1)The law and order code must be adopted by the tribe in accordance with its constitution and by-laws or other governing documents.

(2)The effective date for the code's implementation is contingent upon publication in the **Federal Register** of the amendment to § 11.100(a) that provides public notice of the change and removes the tribe from the list in paragraph

(a)of this section. § 11.106 Who is an Indian for purposes of this part? For the purposes of the enforcement of the regulations in this part, an Indian is defined as a person who is a member of an Indian tribe which is recognized by the Federal Government as eligible for services for the BIA, and any other individual who is an “Indian” for the purposes of 18 U.S.C. 1152-1153. § 11.108 How are tribal ordinances affected by this part? The governing body of each tribe occupying the Indian country over which a Court of Indian Offenses has jurisdiction may enact ordinances which, when approved by the Assistant Secretary—Indian Affairs or his or her designee, shall be enforceable in the Court of Indian Offenses having jurisdiction over the Indian country occupied by that tribe, and shall supersede any conflicting regulation in this part. § 11.110 How are tribal customs affected by this part? Each Court of Indian Offenses shall apply the customs of the tribe occupying the Indian country over which it has jurisdiction to the extent that they are consistent with the regulations of this part. § 11.112 Reserved. § 11.114 What is the criminal jurisdiction of the Court of Indian Offenses?

(a)Except as otherwise provided in this title, each Court of Indian Offenses shall have jurisdiction over any action by an Indian (hereafter referred to as person) that is made a criminal offense under this part and that occurred within the Indian country subject to the court's jurisdiction.

(b)No person shall be prosecuted, tried or punished for any offense unless the complaint is filed within five years after such offense shall have been committed. § 11.116 What is the civil jurisdiction of a Court of Indian Offenses?

(a)Except as otherwise provided in this title, each Court of Indian Offenses has jurisdiction over any civil action arising within the territorial jurisdiction of the court in which:

(1)The claimant is an Indian; or

(2)Claims between Indian claimant or counter-claimants and non-Indian defendants or counter-defendants are brought before the court by stipulation of the parties.

(b)Any civil action commenced in a Court of Indian Offenses shall be barred unless the complaint is filed within three years after the right of action first accrues. § 11.118 What are the jurisdictional limitations of the Court of Indian Offenses?

(a)A Court of Indian Offenses may exercise over a Federal or State official only the same jurisdiction that it could exercise if it were a tribal court. The jurisdiction of Courts of Indian Offenses does not extend to Federal or State employees acting within the scope of their employment.

(b)A Court of Indian Offenses may not adjudicate an election dispute, take jurisdiction over a suit against a tribe, or adjudicate any internal tribal government dispute, unless the relevant tribal governing body passes a resolution, ordinance, or referendum granting the court jurisdiction.

(c)In deciding who is a tribal official, BIA will give deference to a decision of the Court of Indian Offenses, acting as a tribal forum by resolution or ordinance of a tribal governing body under paragraph

(b)of this section.

(d)A tribe may not be sued in a Court of Indian Offenses unless its tribal governing body explicitly waives its tribal immunity by tribal resolution or ordinance. Subpart B—Courts of Indian Offenses; Personnel; Administration 3. In § 11.200, revise the section heading and paragraph

(c)to read as follows: § 11.200 What is the composition of the Court of Indian Offenses?

(c)Appeals must be heard by a panel of magistrates who were not involved at the tribal/trial level. 4. In § 11.201, revise the section heading and paragraph

(a)to read as follows: § 11.201 How are magistrates for the Court of Indian Offenses appointed?

(a)The Assistant Secretary—Indian Affairs or his or her designee will appoint each magistrate after consultation with the tribe or tribes as required. 5. In § 11.202, revise the section heading to read as follows: § 11.202 How is a magistrate of the Court of Indian Offenses removed? 6. In § 11.203, revise the section heading to read as follows: § 11.203 How are the clerks of the Court of Indian Offenses appointed and what are their duties? 7. In § 11.205, revise the section heading to read as follows: § 11.205 Are there standards for the appearance of attorneys and lay counselors? 8. In § 11.206, revise the section heading to read as follows: § 11.206 Is the Court of Indian Offenses a court of record? 9. In § 11.207, revise the section heading to read as follows: § 11.207 What are the responsibilities of Bureau of Indian Affairs employees? 10. In § 11.208, revise the section heading to read as follows: § 11.208 May Individual Indian Money accounts be used for payment of judgments? 11. In § 11.209, revise the section heading to read as follows: § 11.209 How does the Court of Indian Offenses dispose of fines? Subpart C—Criminal Procedure 12. In § 11.314, redesignate paragraphs

(c)through

(e)as paragraphs

(d)through (f), revise paragraphs

(a)and (b), and add a new paragraph (c), to read as follows: § 11.314 Jury trials.

(a)A defendant has a right, upon demand, to a jury trial in any criminal case:

(1)That is punishable by a maximum sentence of one year incarceration; or

(2)In which the prosecutor informs the court before the case comes to trial that a jail sentence will be sought.

(b)If the prosecutor informs the court that no sentence of incarceration will be sought, the court may not impose a sentence of incarceration for the offense.

(c)A jury must consist of 12 residents of the vicinity in which trial is held, selected from a list of eligible jurors prepared each year by the court.

(1)An eligible juror must:

(i)Be at least 18 years of age;

(ii)Not have been convicted of a felony; and

(iii)Be otherwise qualified according to standards established by the Court of Indian Offenses under its general rulemaking authority.

(2)Any party may challenge without cause a maximum of three members of the jury panel chosen under this section. 13. In § 11.315, revise paragraph

(a)to read as follows: § 11.315 Sentencing.

(a)Any person who has been convicted in a Court of Indian Offenses of a criminal offense under the regulations of this part may be sentenced to one or a combination of the following penalties:

(1)Imprisonment for a period up to the maximum permitted by the section defining the offense, but in no case for longer than one year; and

(2)A fine in an amount up to the maximum permitted by the section defining the offense, but in no case greater than $5,000. Subpart D—Criminal Offenses 14. Revise § 11.450 to read as follows: § 11.450 Maximum fines and sentences of imprisonment. A person convicted of an offense under the regulations in this part may be sentenced as follows: Type of offense Maximum allowable sentence

(a)Misdemeanor Up to1 year in prison, or a fine of up to $5,000, or both.

(b)Petty misdemeanor Up to 6 months in prison, or a fine of up to $2,500, or both.

(c)Violation Up to 3 months in prison, or a fine of up to $1,000, or both. 15. Add new §§ 11.451 through 11.454 to read as follows: § 11.451 Abuse of psychotoxic chemical solvents.

(a)It is unlawful to:

(1)Intentionally smell or inhale the fumes of any psychotoxic chemical solvent or possess, purchase, or attempt to possess or purchase any psychotoxic chemical solvent, for the purpose of causing intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system; or

(2)Sell, give away, dispense, or distribute, or offer to sell, give away, dispense, or distribute, any psychotoxic chemical solvent knowing or believing that the purchaser or another person intends to use the solvent in violation of this section.

(b)This section does not apply to inhalation of anesthesia for medical or dental purposes.

(c)As used in this section, “psychotoxic chemical solvent” means any glue, gasoline, paint, hair spray, Lysol, or other substance containing one or more of the following chemical compounds:

(1)Acetone and acetate;

(2)Benzene;

(3)Butyl-alcohol;

(4)Methyl ethyl;

(6)Peptone;

(7)Pentachlorophenol;

(8)Petroleum ether; or

(9)Any other chemical substance the inhalation of whose fumes or vapors can cause intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system.

(d)The statement listing the contents of a substance packaged in a container by the manufacturer or producer thereof is rebuttable proof of the contents of the substance without further expert testimony if it reasonably appears that the substance in the container is the same substance placed therein by the manufacturer or producer.

(e)Abuse of psychotoxic chemical solvents, as defined in this section, is punishable as a petty misdemeanor, and the court may order any person using psychotoxic chemical solvents as described in paragraph

(a)of this section to be committed to a facility for treatment for up to 6 months.

(f)Psychotoxic chemical solvents kept or used in violation of this section are declared contraband and upon proof of a violation must be forfeited to the Federal government by order of the court, following public notice and an opportunity for any person claiming an interest therein to be heard. § 11.452 Possession of a Controlled Substance.

(a)It is unlawful for a person to knowingly or intentionally possess any controlled substance listed in 21 CFR Part 1308, as amended, unless:

(1)The Controlled Substances Act or Drug Enforcement Agency regulations specifically authorizes possession of the substance;

(2)The substance or preparation is excluded or exempted by 21 CFR 1308.21 through 1308.35, as amended; or

(3)The provisions of 42 U.S.C. 1996a (regarding traditional Indian religious use of peyote) apply.

(b)Violations of paragraph

(a)of this section are punishable as a misdemeanor.

(c)Any controlled substance involved in violation of this section is declared to be contraband. Upon proof of a violation of this section, the controlled substance must be forfeited to the Federal Government by order of the court, after public notice and an opportunity for any person claiming an interest in the substance to be heard.

(d)Any personal property used to transport, conceal, manufacture, cultivate, or distribute the controlled substance in violation of this section is subject to forfeiture to the Federal Government by order of the court upon proof of such use, following public notice and opportunity for any person claiming an interest in the property to be heard. § 11.453 Prostitution or Solicitation. A person who commits prostitution or solicitation or who knowingly keeps, maintains, rents, or leases, any house, room, tent, or other place for the purpose of prostitution is guilty of a misdemeanor. § 11.454 Domestic violence.

(a)A person who commits domestic violence by inflicting physical harm, bodily injury, or sexual assault, or inflicting the fear of imminent physical harm, bodily injury, or sexual assault on a family member is guilty of a misdemeanor.

(b)For purposes of this section, a family member is any of the following:

(1)A spouse;

(2)A former spouse;

(3)A person related by blood;

(4)A person related by existing or prior marriage;

(5)A person who resides or resided with the defendant; or

(6)A person with whom the defendant has a child in common. 16. Revise § 11.500 to read as follows. § 11.500 Law applicable to civil actions.

(a)In all civil cases, the Magistrate of a Court of Indian Offenses shall have discretion to apply:

(1)Any laws of the United States that may be applicable;

(2)Any authorized regulations contained in the Code of Federal Regulations; and

(3)Any laws or customs of the tribe occupying the area of Indian country over which the court has jurisdiction that are not prohibited by Federal laws. This delineation does not establish a hierarchy relative to the applicability of specific law in specific cases.

(b)Where any doubt arises as to the customs of the tribe, the court may request the advice of counselors familiar with those customs.

(c)Any matters that are not covered by the laws or customs of the tribe, or by applicable Federal laws and regulations, may be decided by the Court of Indian Offenses according to the laws of the State in which the matter in dispute lies. 17. Add a new Subpart L to read as follows: Subpart L—Child Protection and Domestic Violence Procedures Sec. 11.1200 Definitions. 11.1202 How to petition for an order of protection. 11.1204 Obtaining an emergency order of protection. 11.1206 Obtaining a regular (non-emergency) order of protection. 11.1208 Service of the protection order. 11.1210 Duration and renewal of a regular protection order. 11.1212 Consequences of disobedience or interference. 11.1214 Relationship of this part to other remedies. § 11.1200 Definitions. *Domestic violence* means to inflict physical harm, bodily injury, or sexual assault, or the fear of imminent physical harm, bodily injury, or sexual assault on a family member. *Family member* means any of the following:

(1)A spouse;

(2)A former spouse;

(3)A person related by blood;

(4)A person related by existing or prior marriage;

(5)A person who resides or resided with the defendant; or

(6)A person with whom the defendant has a child in common. *Parent* means persons who have a child in common, regardless of whether they have been married or have lived together at any time. § 11.1202 How to petition for an order of protection. A victim of a domestic violence, or the parent, guardian of a victim, or a concerned adult may petition the court under this subpart for an order of protection.

(a)The petition must be made under oath or accompanied by a sworn affidavit setting out specific facts describing the act of domestic violence.

(b)The petitioner is not required to file for annulment, separation, or divorce in order to obtain an order of protection. However, the petition should state whether any legal action is pending between the petitioner and the respondent.

(c)The Court may develop simplified petition forms with instructions for completion and make them available to petitioners not represented by counsel. Law enforcement agencies may keep the forms on hand and make them available upon request to victims of domestic violence. § 11.1204 Obtaining an emergency order of protection.

(a)When a victim files a petition for an order of protection under § 11.202(a), the court may immediately grant an ex parte emergency order of protection if the petition clearly shows that an act of domestic violence has occurred. The order must meet the content requirements of § 11.206

(a)and (b).

(b)If the court does not immediately grant an emergency order of protection under paragraph

(a)of this section, the court must either:

(1)Within 72 hours after the victim files a petition, serve notice to appear upon both parties and hold a hearing on the petition for order of protection; or

(2)If a notice of hearing cannot be served within 72 hours, issue an emergency order of protection.

(c)If the court issues an ex parte emergency order of protection under paragraph

(a)of this section, it must within 10 days hold a hearing on the question of continuing the order. If notice of hearing cannot be served within 10 days:

(1)The emergency order of protection is automatically extended for 10 days; and

(2)If after the 10-day extension, notice to appear cannot be served, the emergency order of protection expires.

(d)If the court issues an ex parte emergency order of protection under paragraph (b)(2) of this section, it must cause the order to be served on the person alleged to have committed a family violence act and seek to hold a hearing as soon as possible. If a hearing cannot be held within 10 days, the petitioner may ask the court to renew the emergency protection order. § 11.1206 Obtaining a regular (non-emergency) order of protection. Following a hearing and finding that an act of domestic violence occurred, the court may issue an order of protection. The order must meet the requirements of paragraph

(a)of this section and may meet the requirements of paragraph

(b)of this section. Either party may request a review hearing to amend or vacate the order of protection.

(a)The order of protection must do all of the following:

(1)Specifically describe in clear language the behavior the court has ordered he or she do or refrain from doing;

(2)Give notice that violation of any provision of the order of protection constitutes contempt of court and may result in a fine or imprisonment, or both; and

(3)Indicate whether the order of protection supersedes or alters prior orders pertaining to matters between the parties.

(b)The order of protection may do any of the following:

(1)Order the person who committed the act of domestic violence to refrain from acts or threats of violence against the petitioner or any other family member;

(2)Order that the person who committed the act of domestic violence be removed from the home of the petitioner;

(3)Grant sole possession of the residence or household to the petitioner during the period the order of protection is effective, or order the person who has committed an act of domestic violence to provide temporary suitable alternative housing for the petitioner and other family members to whom the respondent owes a legal obligation of support;

(4)Award temporary custody of any children involved when appropriate and provide for visitation rights, child support, and temporary support for the petitioner on a basis which gives primary consideration to the safety of the petitioner and other household members;

(5)Order that the person who is found to have committed an act of domestic violence to not initiate contact with the petitioner;

(6)Restrain the parties from transferring, concealing, encumbering, or otherwise disposing of one another's property or the joint property of the parties except in the usual course of business or for the necessities of life; and to account to the court for all such transferring, encumbrances, and expenditures made after the order is served or communicated; and

(7)Order other injunctive relief as the court deems necessary for the protection of the petitioner including orders to law enforcement agencies as provided by this subpart. § 11.1208 Service of the protection order. When an order of protection is granted under this subpart:

(a)The petitioner must file it with the clerk of the court and a copy will be sent by the clerk of the court to a law enforcement agency with jurisdiction over the area in which the court is located.

(b)The order must be personally served upon the respondent, unless the respondent or his or her attorney was present at the time the order was issued.

(c)If the court finds the petitioner unable to pay court costs, the order will be served without cost to the petitioner. § 11.1210 Duration and renewal of a regular protection order. An order of protection granted by the court:

(a)Is effective for a fixed period of time, which is up to a maximum of 6 months; and

(b)May be extended for good cause upon motion of the petitioner for an additional period of up to 6 months each time a petition is presented. A petitioner may request as many extensions as necessary provided that the court determines that good cause exists. § 11.1212 Consequences of disobedience or interference. Any willful disobedience or interference with any court order constitutes contempt of court which may result in a fine or imprisonment, or both, in accordance with this part. § 11.1214 Relationship of this subpart to other remedies. The remedies provided in this subpart are in addition to the other civil or criminal remedies available to the petitioner. [FR Doc. E7-24043 Filed 12-18-07; 8:45 am] BILLING CODE 4310-4J-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-113891-07] RIN 1545-BG72 Benefit Restrictions for Underfunded Pension Plans; Hearing AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of public hearing on proposed rulemaking. SUMMARY: This document provides a notice of public hearing on proposed rulemaking providing guidance regarding the use of certain funding balances maintained for defined benefit pension plans and regarding benefit restrictions for certain underfunded defined benefit pension plans. DATES: The public hearing is being held on Monday, January 28, 2008, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the hearing by January 7, 2008. ADDRESSES: The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue, NW., Washington, DC 20224. Mail outlines to CC:PA:LPD:PR (REG-113891-07), room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-113891-07), Couriers Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC or sent electronically via the Federal eRulemaking Portal at *http://www.regulations.gov* (IRS-REG-113891-07). FOR FURTHER INFORMATION CONTACT: Concerning submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing, Kelly Banks at

(202)622-7180 (not a toll-free number). SUPPLEMENTARY INFORMATION: The subject of the public hearing is the notice of proposed rulemaking (REG-113891-07) that was published in the **Federal Register** on Friday, August 31, 2007 (72 FR 50544). The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who have submitted written comments and wish to present oral comments at the hearing must submit an outline of the topics to be discussed and the amount of time to be devoted to each topic by January 7, 2008. A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available free of charge at the hearing. Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document. LaNita Van Dyke, Branch Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E7-24670 Filed 12-18-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-209020-86] RIN 1545-AC09 Foreign Tax Credit: Notification of Foreign Tax Redeterminations; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to notice of proposed rulemaking by cross-reference to temporary regulations. SUMMARY: This document contains corrections to a notice of proposed rulemaking by cross-reference to temporary regulations (REG-209020-86) that was published in the **Federal Register** on Wednesday, November 7, 2007 (72 FR 62805) relating to a taxpayer's obligation under section 905(c) of the Internal Revenue Code to notify IRS of a foreign tax redetermination and also relating to the civil penalty under section 6689 for failure to notify the IRS of a foreign tax redetermination as required under section 905(c). FOR FURTHER INFORMATION CONTACT: Teresa Burridge Hughes at

(202)622-3850 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The correction notice that is the subject of this document is under section 905(c) of the Internal Revenue Code. Need for Correction As published, the notice of proposed rulemaking by cross-reference to temporary regulations (REG-209020-86) contain errors that may prove to be misleading and are in need of clarification. Correction of Publication Accordingly, the publication of the notice of proposed rulemaking by cross-reference to the temporary regulations (REG-209020-86), which was the subject of FR Doc. E7-21727, is corrected as follows: 1. On page 62806, column 1, in the preamble, under the caption “ ADDRESSES: ”, line 8, the language “CC:PA:LPD:PR (REG-209020-90),” is corrected to read “CC:PA:LPD:PR (REG-209020-86),”. § 1.905-5 [Corrected] 2. On page 62807, column 2, § 1.905-5, the word (temporary) is removed from the end of the section title. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E7-24673 Filed 12-18-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2560 RIN 1210-AB24 Civil Penalties Under ERISA Section 502(c)(4) AGENCY: Employee Benefits Security Administration, Labor. ACTION: Proposed regulation. SUMMARY: This document contains a proposed regulation that, upon adoption, would establish procedures relating to the assessment of civil penalties by the Department of Labor under section 502(c)(4) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). The regulation is necessary to reflect recent amendments to section 502(c)(4) by the Pension Protection Act of 2006, under which the Secretary of Labor is granted authority to assess civil penalties not to exceed $1,000 per day for each violation of section 101(j), (k), or (l), or section 514(e)(3) of ERISA. The regulation would affect employee benefit plans, plan administrators and sponsors, fiduciaries, as well as participants, beneficiaries, employee representatives, and certain employers. DATES: Written comments on the proposed regulation should be received by the Department of Labor no later than February 19, 2008. ADDRESSES: You may submit comments, identified by RIN 1210-AB24, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: e-ORI@dol.gov* . Include RIN 1210-AB24 in the subject line of the message. • *Mail:* Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: Civil Penalties Under 502(c)(4). *Instructions:* All submissions received must include the agency name and Regulatory Information Number

(RIN)for this rulemaking. Comments received will be posted without change to *www.regulations.gov* and *http://www.dol.gov/ebsa,* and available for public inspection at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Washington, DC 20210, including any personal information provided. Persons submitting comments electronically are encouraged not to submit paper copies. FOR FURTHER INFORMATION CONTACT: Melissa R. Spurgeon, Office of Regulations and Interpretations, Employee Benefits Security Administration,

(202)693-8500. This is not a toll-free number. SUPPLEMENTARY INFORMATION: A. Background On August 17, 2006, the Pension Protection Act of 2006 (PPA), Public Law 109-280, 120 Stat. 780, amended title I of ERISA by adding or revising a substantial number of substantive provisions. In conjunction with many of these new or revised provisions, the PPA also amended the civil enforcement provisions in ERISA to provide the Secretary of Labor with authority to assess civil monetary penalties for violations of the substantive provisions. Specifically, section 103(b)(1) of the PPA amended section 101 of ERISA by adding a new disclosure requirement under subsection (j), under which the plan administrator of a single-employer defined benefit pension plan must provide written notice of limitations on benefits and benefit accruals to participants and beneficiaries pursuant to section 206(g) of ERISA (or the parallel Internal Revenue Code provision at section 436(b)). 1 A notice of benefit limitations must be furnished within 30 days after a plan becomes subject to an ERISA section 206(g) funding-based restriction and at such other time as may be determined by the Secretary of the Treasury. Section 103(b)(2) of the PPA amended section 502(c)(4) of ERISA to provide the Secretary of Labor with the authority to assess a civil penalty of not more than $1,000 a day for each violation of ERISA section 101(j). The effective date of the provisions added by PPA section 103(b) is for plan years beginning on or after January 1, 2008. 1 Under section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713), the Secretary of the Treasury has interpretive jurisdiction over section 206(g) of ERISA. Section 502(a)(1) of the PPA amended section 101 of ERISA by adding subsection (k), under which the plan administrator of a multiemployer pension plan must, upon written request, furnish certain documents to any plan participant, beneficiary, employee representative, or any employer that has an obligation to contribute to the plan. Section 502(a)(2) of the PPA amended section 502(c)(4) of ERISA to provide the Secretary of Labor with the authority to assess a civil penalty of not more than $1,000 a day for each violation of ERISA section 101(k). The effective date of the provisions added by PPA section 502(a) is for plan years beginning on or after January 1, 2008. Section 502(b)(1) of the PPA amended section 101 of ERISA by adding subsection (l), under which a plan sponsor or plan administrator of a multiemployer employee benefit plan must, upon written request, furnish to any employer with an obligation to contribute to such plan, notice of potential withdrawal liability. Section 502(b)(2) of the PPA amended section 502(c)(4) of ERISA to provide the Secretary of Labor with the authority to assess a civil penalty of not more than $1,000 a day for each violation of ERISA section 101(l). The effective date of the provisions added by PPA section 502(b) is for plan years beginning on or after January 1, 2008. Section 902(f)(1) of the PPA amended section 514 of ERISA by adding subsection (e)(3), under which the plan administrator of a plan with an automatic contribution arrangement shall provide to each participant to whom the arrangement applies, notice of the participant's rights and obligations under such arrangement. Notice under section 514(e)(3) of ERISA must be furnished within such time period prescribed in section 2550.404c-5(c)(3), generally at least 30 days in advance of a participant's date of plan eligibility and within a reasonable period of time of at least 30 days in advance of each subsequent plan year. Section 902(f)(2) of the PPA amended section 502(c)(4) of ERISA to provide the Secretary of Labor with the authority to assess a civil penalty of not more than $1,000 a day for each violation of ERISA section 514(e)(3). The effective date of the provisions added by PPA section 902(f) is August 17, 2006. B. Overview of § 2560.502c-4 In general, the proposed regulation sets forth how the maximum penalty amounts are computed, identifies the circumstances under which a penalty may be assessed, sets forth certain procedural rules for service and filing, and provides a plan administrator a means to contest an assessment by the Department by requesting an administrative hearing. Paragraph

(a)of the regulation addresses the general application of section 502(c)(4) of ERISA, under which the plan administrator of an eligible plan shall be liable for civil penalties assessed by the Secretary of Labor in each case in which there is a failure or refusal, in whole or in part, to furnish the item(s) to each person entitled under the requirements of section 101(j), (k), or (l), or section 514(e)(3) of ERISA, as applicable. Paragraph

(b)of the regulation sets forth the amount of penalties that may be assessed under section 502(c)(4) of ERISA and provides that the penalty assessed under section 502(c)(4) for each separate violation is to be determined by the Department, taking into consideration the degree or willfulness of the failure or refusal. Paragraph

(b)provides that the maximum amount assessed for each violation shall not exceed $1,000 a day per violation. 2 2 The Federal Civil Penalties Inflation Adjustment Act of 1990 (the 1990 Act), Public Law 101-410, 104 Stat. 890, as amended by the Debt Collection Improvement Act of 1996 (the Act), Public Law 104-134, 110 Stat. 1321-373, generally provides that federal agencies adjust certain civil monetary penalties for inflation no later than 180 days after the enactment of the Act, and at least once every four years thereafter, in accordance with the guidelines specified in the 1990 Act. The Act specifies that any such increase in a civil monetary penalty shall apply only to violations that occur after the date the increase takes effect. Paragraph

(c)of the regulation provides that, prior to assessing a penalty under ERISA section 502(c)(4), the Department shall provide the plan administrator with written notice of the Department's intent to assess a penalty, the amount of such penalty, the number of individuals (e.g., participants and beneficiaries) on which the penalty is based, the period to which the penalty applies, and the reason(s) for the penalty. The notice would indicate the specific provision violated (i.e., section 101(j), (k), or (l), or section 514(e)(3) of ERISA). The notice is to be served in accordance with paragraph

(i)of the regulation (service of notice provision). Paragraph

(d)of the regulation provides that the Department may determine not to assess a penalty, or to waive all or part of the penalty to be assessed, under ERISA 502(c)(4), upon a showing by the administrator, under paragraph

(e)of the regulation, of compliance with section 101(j), (k), or (l), or section 514(e)(3) of ERISA or that there were mitigating circumstances for noncompliance. Under paragraph

(e)of the regulation, the administrator has 30 days from the date of the service of the notice issued under paragraph

(c)of the regulation within which to file a statement making such a showing. When the Department serves the notice under paragraph

(c)by certified mail, service is complete upon mailing but five

(5)days are added to the time allowed for the filing of the statement (see § 2560.502c-4(i)(2)). Paragraph

(f)of the regulation provides that a failure to file a timely statement under paragraph

(e)shall be deemed to be a waiver of the right to appear and contest the facts alleged in the Department's notice of intent to assess a penalty for purposes of any adjudicatory proceeding involving the assessment of the penalty under section 502(c)(4) of ERISA, and to be an admission of the facts alleged in the notice of intent to assess. Such notice then becomes a final order of the Secretary 45 days from the date of service of the notice. Paragraph (g)(1) of the regulation provides that, following a review of the facts alleged in the statement under paragraph (e), the Department shall notify the administrator of its intention to waive the penalty, in whole or in part, and/or assess a penalty. If it is the intention of the Department to assess a penalty, the notice shall indicate the amount of the penalty. Under paragraph (g)(2) of the regulation, this notice becomes a final order 45 days after the date of service of the notice, except as provided in paragraph (h). Paragraph

(h)of the regulation provides that the notice described in paragraph

(g)will become a final order of the Department unless, within 30 days of the date of service of the notice, the plan administrator or representative files a request for a hearing to contest the assessment in administrative proceedings set forth in regulations issued under part 2570 of title 29 of the Code of Federal Regulations and files an answer, in writing, opposing the sanction. When the Department serves the notice under paragraph

(g)by mail, service is complete upon mailing, but five days are added to the time allowed for the filing of a request for hearing and answer if the notice was served by certified mail (see 2560.502c-4(i)(2)). Paragraph (i)(1) of the regulation describes the rules relating to service of the Department's notice of penalty assessment (Sec. 2560.502c-4(c)) and the Department's notice of determination on a statement of reasonable cause (Sec. 2560.502c-4(g)). Paragraph (i)(1) provides that service by the Department shall be made by delivering a copy to the administrator or representative thereof; by leaving a copy at the principal office, place of business, or residence of the administrator or representative thereof; or by mailing a copy to the last known address of the administrator or representative thereof. As noted above, paragraph (i)(2) of this section provides that when service of a notice under paragraph

(c)or

(g)is by certified mail, service is complete upon mailing, but five days are added to the time allowed for the filing of a statement or a request for hearing and answer, as applicable. Service by regular mail is complete upon receipt by the addressee. Paragraph (i)(3) of the regulation, which relates to the filing of statements of reasonable cause, provides that a statement of reasonable cause shall be considered filed

(i)upon mailing if accomplished using United States Postal Service certified mail or express mail,

(ii)upon receipt by the delivery service if accomplished using a “designated private delivery service” within the meaning of 26 U.S.C. 7502(f),

(iii)upon transmittal if transmitted in a manner specified in the notice of intent to assess a penalty as a method of transmittal to be accorded such special treatment, or

(iv)in the case of any other method of filing, upon receipt by the Department at the address provided in the notice. This provision does not apply to the filing of requests for hearing and answers with the Office of the Administrative Law Judge

(OALJ)which are governed by the Department's OALJ rules in 29 CFR 18.4. Paragraph

(j)of the regulation clarifies the liability of the parties for penalties assessed under section 502(c)(4) of ERISA. Paragraph (j)(1) provides that, if more than one person is responsible as administrator for the failure to provide the required item(s), all such persons shall be jointly and severally liable for such failure. Paragraph (j)(2) provides that any person against whom a penalty is assessed under section 502(c)(4) of ERISA, pursuant to a final order, is personally liable for the payment of such penalty. Paragraph (j)(2) provides that liability for the payment of penalties assessed under section 502(c)(4) of ERISA is a personal liability of the person against whom the penalty is assessed and not a liability of the plan. It is the Department's view that payment of penalties assessed under ERISA section 502(c) from plan assets would not constitute a reasonable expense of administering a plan for purposes of sections 403 and 404 of ERISA. Consistent with section 101(l) of ERISA, for purposes of any civil penalty imposed under section 502(c)(4) of ERISA pursuant to the requirements of section 101(l) of ERISA, the term “administrator” shall include plan sponsor (within the meaning of section 3(16)(B) of the Act). Paragraph

(k)of the regulation establishes procedures for hearings before an Administrative Law Judge

(ALJ)with respect to assessment by the Department of a civil penalty under ERISA section 502(c)(4), and for appealing an ALJ decision to the Secretary or her delegate. The procedures are the same procedures that would apply in the case of a civil penalty assessment under 502(c)(7) of ERISA. C. Effective Date The Department proposes to make this regulation effective 60 days after the date of publication of the final rule in the **Federal Register** . D. Regulatory Impact Analysis Executive Order 12866 Under Executive Order 12866 (58 FR 51735), the Department must determine whether a regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB). Section 3(f) of the Executive Order defines a “significant regulatory action” as 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. The Department has determined that these proposed rules relating to the assessment of civil monetary penalties under section 502(c)(4) of ERISA are significant in that they provide guidance on the enforcement of the disclosure provisions of section 101(j), (k), and

(l)and section 514(e)(3) of ERISA. The principal benefit of the statutory penalty provisions and this proposed rule will be greater adherence to the new disclosure requirements. The implementation of orderly and consistent processes for the assessment of penalties and the review of such assessments will also be beneficial for plan administrators. The procedures established in this proposed rule also will allow facts and circumstances related to a failure or refusal to provide appropriate disclosure to be presented by a plan administrator and to be taken into consideration by the Department in assessing penalties under ERISA section 502(c)(4). The rate of failure or refusal to provide required disclosure, and the dollar value of penalties to be assessed in those cases cannot be predicted. The civil penalty provisions of the statute and this proposed rule impose no mandatory requirements or costs, except where a plan administrator has failed to provide the required disclosure. 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. For purposes of its analyses under the RFA, EBSA continues to consider a small entity to be an employee benefit plan with fewer than 100 participants. The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reporting for pension plans that cover fewer than 100 participants. The terms of the statute pertaining to the assessment of civil penalties under section 502(c)(4) of ERISA do not vary relative to plan or plan administrator size. The operation of the statute will normally result in the assessment of lower penalties where small plans are involved because penalty assessments are based, in part, on the number of plan participants. The opportunity for a plan administrator to present facts and circumstances related to a failure or refusal to provide appropriate disclosure that may be taken into consideration by the Department in assessing penalties under ERISA section 502(c)(4) may offer some degree of flexibility to small entities subject to penalty assessments. Penalty assessments will have no direct impact on small plans because the plan administrator assessed a civil penalty is personally liable for the payment of that penalty pursuant to section 2560.502c-4(j). The Department invites interested persons to submit comments on the impact of this notice of proposed rulemaking on small entities, and on any alternative approaches that may serve to minimize the impact on small plans or other entities while accomplishing the objectives of the statutory provisions. Paperwork Reduction Act The proposal 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 the proposed 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. Congressional Review Act This notice of proposed rulemaking 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, upon finalization, will be transmitted to the Congress and the Comptroller General for review. Unfunded Mandates Reform Act For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, this rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, and does not 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 the adherence to specific criteria by federal agencies 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 proposed 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 this proposed rule does not alter the fundamental reporting and disclosure, or administration and enforcement provisions of the statute with respect to employee benefit plans, and as such 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. Accordingly, 29 CFR part 2560 is proposed to be amended as follows: PART 2560—RULES AND REGULATIONS FOR ADMINISTRATION AND ENFORCEMENT 1. The authority citation for part 2560 continues 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. Section 2560.502c-7 also issued under Pub. L. 109-280, 120 Stat. 780. Sec. 2560.502c-4 also issued under Pub. L. 109-280, 120 Stat. 780. 2. Add § 2560.502c-4 to read as follows: § 2560.502c-4 Civil penalties under section 502(c)(4).

(a)*In general.*

(1)Pursuant to the authority granted the Secretary under section 502(c)(4) 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) shall be liable for civil penalties assessed by the Secretary under section 502(c)(4) of the Act, for failure or refusal to furnish:

(i)Notice of funding-based limits in accordance with section 101(j) of the Act;

(ii)Actuarial, financial or funding information in accordance with section 101(k) of the Act;

(iii)Notice of potential withdrawal liability in accordance with section 101(l) of the Act; or

(iv)Notice of rights and obligations under an automatic contribution arrangement in accordance with section 514(e)(3) of the Act.

(2)For purposes of this section, a failure or refusal to furnish the items referred to in paragraph (a)(1) of this section shall mean a failure or refusal to furnish, in whole or in part, the items required under section 101(j), (k), or (l), or section 514(e)(3) of the Act at the relevant times and manners prescribed in such sections.

(b)*Amount assessed.*

(1)The amount assessed under section 502(c)(4) of the Act for each separate violation shall be determined by the Department of Labor, taking into consideration the degree or willfulness of the failure or refusal to furnish the items referred to in paragraph

(a)of this section. However, the amount assessed for each violation under section 502(c)(4) of the Act shall not exceed $1,000 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 the date of the administrator's failure or refusal to furnish the items referred to in paragraph

(a)of this section.

(2)For purposes of calculating the amount to be assessed under this section, a failure or refusal to furnish the item with respect to any person entitled to receive such item, shall be treated as a separate violation under section 101(j), (k), or (l), or section 514(e)(3) of the Act, as applicable.

(c)*Notice of intent to assess a penalty.* Prior to the assessment of any penalty under section 502(c)(4) of the Act, the Department shall provide to the administrator of the plan a written notice indicating the Department's intent to assess a penalty under section 502(c)(4) of the Act, the amount of such penalty, the number of individuals on which the penalty is based, the period to which the penalty applies, and the reason(s) for the penalty.

(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 requirements of section 101(j), (k), or (l), or section 514(e)(3) of the Act, as applicable, or on a showing by such person of mitigating circumstances regarding the degree or willfulness of the noncompliance.

(e)*Showing of reasonable cause.* Upon issuance by the Department of a notice of intent to assess a penalty, the administrator shall have thirty

(30)days from the date of service of the notice, as described in paragraph

(i)of this section, to file a statement of reasonable cause explaining why the penalty, as calculated, should be reduced, or not be assessed, for the reasons set forth in paragraph

(d)of this section. Such statement must be made in writing and set forth all the facts alleged as reasonable cause for the reduction or nonassessment of the penalty. The statement must contain a declaration by the administrator that the statement is made under the penalties of perjury.

(f)*Failure to file a statement of reasonable cause.* Failure to file a statement of reasonable cause within the thirty

(30)day period described in paragraph

(e)of this section shall be deemed to constitute a waiver of the right to appear and contest the facts alleged in the notice of intent, and such failure shall be deemed an admission of the facts alleged in the notice for purposes of any proceeding involving the assessment of a civil penalty under section 502(c)(4) of the Act. Such notice shall then become a final order of the Secretary, within the meaning of § 2570.131(g) of this chapter, forty-five

(45)days from the date of service of the notice.

(g)*Notice of determination on statement of reasonable cause.*

(1)The Department, following a review of all of the facts in a statement of reasonable cause alleged in support of nonassessment or a complete or partial waiver of the penalty, shall notify the administrator, in writing, of its determination on the statement of reasonable cause and its determination whether to waive the penalty in whole or in part, and/or assess a penalty. If it is the determination of the Department to assess a penalty, the notice shall indicate the amount of the penalty assessment, not to exceed the amount described in paragraph

(c)of this section. This notice is a “pleading” for purposes of § 2570.131(m) of this chapter.

(2)Except as provided in paragraph

(h)of this section, a notice issued pursuant to paragraph (g)(1) of this section, indicating the Department's determination to assess a penalty, shall become a final order, within the meaning of § 2570.131(g) of this chapter, forty-five

(45)days from the date of service of the notice.

(h)*Administrative hearing.* A notice issued pursuant to paragraph

(g)of this section will not become a final order, within the meaning of § 2570.131(g) of this chapter, if, within thirty

(30)days from the date of the service of the notice, the administrator or a representative thereof files a request for a hearing under §§ 2570.130 through 2570.141 of this chapter, and files an answer to the notice. The request for hearing and answer must be filed in accordance with § 2570.132 of this chapter and § 18.4 of this title. The answer opposing the proposed sanction shall be in writing, and supported by reference to specific circumstances or facts surrounding the notice of determination issued pursuant to paragraph

(g)of this section.

(i)*Service of notices and filing of statements.*

(1)Service of a notice for purposes of paragraphs

(c)and

(g)of this section shall be made:

(i)By delivering a copy to the administrator or representative thereof;

(ii)By leaving a copy at the principal office, place of business, or residence of the administrator or representative thereof; or

(iii)By mailing a copy to the last known address of the administrator or representative thereof.

(2)If service is accomplished by certified mail, service is complete upon mailing. If service is by regular mail, service is complete upon receipt by the addressee. When service of a notice under paragraph

(c)or

(g)of this section is by certified mail, five days shall be added to the time allowed by these rules for the filing of a statement or a request for hearing and answer, as applicable.

(3)For purposes of this section, a statement of reasonable cause shall be considered filed:

(i)Upon mailing, if accomplished using United States Postal Service certified mail or express mail;

(ii)Upon receipt by the delivery service, if accomplished using a “designated private delivery service” within the meaning of 26 U.S.C. 7502(f);

(iii)Upon transmittal, if transmitted in a manner specified in the notice of intent to assess a penalty as a method of transmittal to be accorded such special treatment; or

(iv)In the case of any other method of filing, upon receipt by the Department at the address provided in the notice of intent to assess a penalty.

(j)*Liability.*

(1)If more than one person is responsible as administrator for the failure to furnish the items required under section 101(j), (k), or (l), or section 514(e)(3) of the Act, as applicable, all such persons shall be jointly and severally liable for such failure. For purposes of paragraph (a)(1)(iii) of this section, the term “administrator” shall include plan sponsor (within the meaning of section 3(16)(B) of the Act).

(2)Any person, or persons under paragraph (j)(1) of this section, against whom a civil penalty has been assessed under section 502(c)(4) of the Act, pursuant to a final order within the meaning of § 2570.131(g) of this chapter shall be personally liable for the payment of such penalty.

(k)*Cross-references.*

(1)The procedural rules in §§ 2570.130 through 2570.141 of this chapter apply to administrative hearings under section 502(c)(4) of the Act.

(2)When applying procedural rules in §§ 2570.130 through 2570.140:

(i)Wherever the term “502(c)(7)” appears, such term shall mean “502(c)(4)”;

(ii)Reference to § 2560.502c-7(g) in 2570.131(c) shall be construed as reference to § 2560.502c-4(g) of this chapter;

(iii)Reference to § 2560.502c-7(e) in § 2570.131(g) shall be construed as reference to § 2560.502c-4(e) of this chapter;

(iv)Reference to § 2560.502c-7(g) in § 2570.131(m) shall be construed as reference to § 2560.502c-4(g); and

(v)Reference to §§ 2560.502c-7(g) and 2560.502c-7(h) in § 2570.134 shall be construed as reference to §§ 2560.502c-4(g) and 2560.502c-4(h), respectively. Signed at Washington, DC, this 11th day of December, 2007. Bradford P. Campbell, Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. E7-24386 Filed 12-18-07; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF DEFENSE Office of the Secretary [DoD-2007-OS-0086; 0790-AI24] 32 CFR Part 286 DoD Freedom of Information Act

(FOIA)Program Regulation AGENCY: Department of Defense. ACTION: Proposed rule. SUMMARY: The Department of Defense is proposing to update current policies and procedures to reflect the DoD FOIA Program as prescribed by Executive Order 13392. The proposed changes will ensure appropriate agency disclosure of information, and offer consistency with the goals of section 552 of title 5, United States Code. DATES: Comments must be received by February 19, 2008. ADDRESSES: You may submit comments, identified by docket number and/or RIN number and title, by any of the following methods: • *Federal Rulemaking Portal:* *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number

(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: James Hogan

(703)696-4495. SUPPLEMENTARY INFORMATION: Executive Order 13132, “Federalism” It has been certified that 32 CFR part 286 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1)The States;

(2)The relationship between the National Government and the States; or

(3)The distribution of power and responsibilities among the various levels of Government. Executive Order 12866, “Regulatory Planning and Review” It has been certified that 32 CFR part 286 does not:

(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section 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 this Executive Order. Section 202, Public Law 104-4, “Unfunded Mandates Reform Act” It has been certified that 32 CFR part 286 does not contain a Federal mandate that may result in expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been certified that 32 CFR part 286 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Public Law 96-511, “Paperwork Reduction Act ” (44 U.S.C. Chapter 35) It has been certified that 32 CFR part 286 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. List of Subjects in 32 CFR Part 286 Freedom of information. Accordingly, 32 CFR part 286 is proposed to be revised to read as follows: PART 286-DOD FREEDOM OF INFORMATION ACT

(FOIA)PROGRAM REGULATION Subpart A—General Provisions Sec. 286.1 Purpose. 286.2 Definitions. 286.3 Public access to DoD information. 286.4 Procedures. Subpart B—FOIA Reading Rooms 286.7 Requirements. 286.8 Record availability. 286.9 Indexes. 286.10 “(a)(1)” records. Subpart C—Exemptions 286.13 General provisions. 286.14 Applying the FOIA exemptions. Subpart D—FOIA Request Processing 286.17 General provisions. 286.18 Processing procedures. 286.19 Initial determinations. 286.20 Appeals. 286.21 Judicial actions. Subpart E—Fee Schedule 286.24 General provisions. 286.25 Collection of fees and fee rates. 286.26 Fees for technical data. 286.27 Fees for research data. Subpart F—Education and Training 286.30 Purpose and responsibility. 286.31 Implementation. Appendix A to Part 286—DoD FOIA Program Components Appendix B to Part 286—Addressing FOIA Requests Authority: 5 U.S.C. 552. Subpart A—General Provisions § 286.1 Purpose. This part promotes uniformity in the DoD FOIA Program. It shall take precedence over all DoD Component publications that supplement and implement the DoD FOIA Program. A list of the DoD FOIA Program Components is at Appendix A to this part. § 286.2 Definitions. The following terms and meanings shall apply for the purposes of this part: *Administrative appeal.* A request by a member of the public, made under the FOIA, asking the appellate authority of the DoD Component to reverse any adverse determination by an Initial Denial Authority (IDA). A requester may also appeal the failure of an agency to respond within the statutory time limits. *Adverse determination.* A decision by an IDA to withhold all or part of a requested record, deny a fee category claim by a requester, deny a request for waiver or reduction of fees, deny a request to review an initial fee estimate, deny a request for expedited processing, confirm that no records were located during the initial search, or any determination that a requester believes is adverse in nature. *Agency record.*

(1)Includes:

(i)All products of data compilation made or received by an agency of the U.S. Government under Federal law in connection with the transaction of public business and in DoD possession and control at the time the search in response to a FOIA request is made. Examples include books, papers, maps, photographs, machine-readable materials inclusive of those in electronic form or format, and other documentary materials, regardless of physical form or characteristics.

(ii)Research data produced under a Federal grant used by the Federal Government in developing an agency action that has the force and effect of law (Office of Management and Budget Circular

(OMB)A-110).

(2)Does not include:

(i)Objects or articles, such as structures, furniture, vehicles, and equipment, whatever their historical or evidentiary value.

(ii)Anything that is not a tangible or documentary record, such as an individual's memory or an oral communication.

(iii)Personal records of an individual not subject to agency creation or retention requirements, created and maintained primarily for the convenience of an agency employee and not distributed to other agency employees for their official use. Personal papers fall into three categories:

(A)Those created before entering Government service.

(B)Private materials brought into, created, or received in the office that were not created or received in the course of transacting Government business.

(C)Work-related personal papers that are not used in the transaction of Government business.

(iv)A record that is not in the possession and control of the Department of Defense when the search is conducted in response to a FOIA request. (There is no obligation to create, compile, or obtain a record to satisfy a FOIA request.) *Appellate authority.* The Head of the DoD Component, or designee, having jurisdiction to review and possibly reverse or amend any adverse determination by an IDA. *Direct costs.* Those expenditures the DoD Component makes in searching for, reviewing, and duplicating documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay plus 16 percent of that rate to cover benefits) and the costs of operating duplicating machinery. (These factors have been included in the fee rates prescribed at § 286.25. Not included in direct costs are overhead expenses such as the cost of space, heating, or lighting the facility in which the records are stored. *Electronic records.* Records (including e-mail) created, stored, and retrievable by electronic means. *Federal agency.* Defined in 5 U.S.C. 551(1) and 552(f)(1). (A Federal agency cannot make FOIA requests.) *FOIA office.* The DoD Component office that receives FOIA requests from and responds directly to the public. *FOIA public liaison.* Defined in E.O. 13392. *FOIA request.* A written request for DoD records that reasonably describes the record(s) sought. The request should also indicate a willingness to pay processing fees even if it contains a request for a fee waiver. Written requests may be received by postal service or other commercial delivery means, by facsimile, or electronically. All requests must have a postal mailing address included, even if they are received by facsimile or electronically. *FOIA requester.* Any person, including a partnership, corporation, association, State or State agency, foreign government, foreign national, or a lawyer or other representative acting on behalf of any person, who submits a FOIA request. This definition specifically excludes agencies within the Executive Branch of the Federal Government. *FOIA requester service center* . Defined in E.O. 13392. *IDA.* An official who has been granted authority by the Head of the DoD Component to withhold information requested under the FOIA for one or more of the 9 categories of records exempt from mandatory disclosure. An IDA may also deny a fee category claim by a requester, deny a request for expedited processing, deny a request for a waiver or reduction of fees, review a fee estimate, and confirm that no records were located in response to a request. *Perfected FOIA request.* A FOIA request that meets the conditions identified in definition “FOIA request” and arrives at the FOIA office of the DoD Component in possession of the records. Also referred to as a “correct” request. *Privacy Act system of records.* Defined in DoD 5400.11-R 1 . 1 Copies of unclassified DoD issuances may be obtained at *http://www.dtic.mil/whs/directives/* . *Public interest.* The interest in obtaining official information that sheds light on an agency's performance of its statutory duties because the information falls within the statutory purpose of the FOIA to inform citizens about their Government's activities. *Search.* Includes all time spent looking, both manually and electronically, for records that are responsive to a FOIA request. The term “search” also includes a page-by-page or line-by-line identification (if necessary) of material in the record to determine if it, or portions of it, are responsive to the request. Time spent reviewing documents to determine whether to apply one or more of the statutory exemptions is not search time; it is review time.

(1)*Duplication.* The process of making a copy of a document in response to a FOIA request. Such copies can take the form of paper, microfiche, or audiovisual or machine-readable documentation (e.g., magnetic tape or disc), among others.

(2)*Review.* The examination of documents located in response to a FOIA request to determine whether one or more of the statutory exemptions permit withholding. Review also includes processing the documents for disclosure, such as excising them for release. Review does not include the time spent resolving general, legal or policy issues regarding the application of exemptions. *Submitter.* A person or persons outside of the Government providing commercial or financial information or trade secrets to the Government. *Submitter notice.* The process required by E.O. 12600 whereby when a Component receives a FOIA request for confidential commercial information, it asks the submitter of the information to advise the Component as to the information it considers exempt from release. § 286.3 Public access to DoD information.

(a)The public has a right to information concerning the activities of its Government. DoD policy (32 CFR part 285) is to conduct DoD activities in an open manner and to provide the public a maximum of accurate and timely information concerning DoD activities, consistent with the need for security, public and private interests of the American people, and adherence to other requirements of law and regulation. A record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall not be withheld in whole or in part unless the record is exempt from mandatory, partial or total disclosure under the FOIA. The existence of a sound legal basis to withhold information does not preclude the DoD Component from making a discretionary release if release of that information would serve the public interest. Records requested through public affairs channels by news media representatives that would not be withheld if requested under the FOIA should be released promptly upon request. Similarly, requests from other members of the public for information that would not be withheld under the FOIA should continue to be honored through appropriate means without requiring the requester to invoke the FOIA.

(b)The DoD FOIA Program Components shall prepare, in addition to normal FOIA regulations, a guide, or handbook for the use of the public in obtaining information from their Components as required by 5 U.S.C. 552(g) and section 2(b)(v) of E.O. 13392. This guide should be a short, simple explanation of what the FOIA is designed to do and how the public can use it to access Government records. Within OSD, DFOIPO is responsible for preparing this guide. Each guide shall be available on paper and electronically and shall include:

(1)An index of all major information systems and a description of major information and record locator systems.

(2)The types and categories of records that can be obtained through FOIA requests.

(3)A concise description of the FOIA exemptions and how the Component determines whether the record can be released.

(4)An explanation of how to make a FOIA request, how long the requester can expect to wait for a reply, and the right of appeal.

(5)The location of the FOIA reading rooms(s) within the Component.

(6)The location of the Component's Web site.

(7)A reference to the Component's FOIA regulation and how to obtain a copy. § 286.4 Procedures.

(a)*Compliance with the FOIA.* DoD personnel shall comply with the FOIA, this part, and DoD FOIA policy (32 CFR part 285) in both letter and spirit. This strict adherence is necessary to assure uniformity in implementation of the DoD FOIA Program and to create conditions that promote public trust.

(b)*Customer service.*

(1)In signing E.O. 13392, the President ordered agencies to emphasize a new citizen-centered approach to the FOIA with a results-oriented focus. Because FOIA requesters are seeking a service from the Federal Government, the DoD Components shall respond courteously and appropriately to FOIA requesters. Additionally, the Components shall provide the public with citizen-centered ways to learn about the FOIA process, information about agency records that are publicly available, and information about the status of a person's FOIA request and appropriate information about the agency's response.

(2)To meet the objectives of E.O. 13392, the DoD Components shall:

(i)Establish one or more FOIA Requester Service Centers. Normally, every DoD Component FOIA office that responds directly to the public is a FOIA Requester Service Center; however, the Components have the discretion to assign more than one FOIA Office under a FOIA Requester Service Center.

(A)Each FOIA Requester Service Center shall have an internet Web site that serves to educate the public on the FOIA process. At a minimum, each Web site shall have the address, telephone number, facsimile number, and electronic mail address to which FOIA requests can be sent; a link to the Component's FOIA handbook or guide; a description of the types of records that can be requested; the name and contact information of the Component's FOIA Public Liaison; and information on how a requester can obtain the status of a request. Additionally, each FOIA Requester Service Center Web site will have an electronic FOIA reading room as described in Subpart B to this part.

(B)The Web sites of DoD Component Headquarters FOIA Requester Service Centers shall link to the Web sites of the other Requester Service Centers within their Components.

(C)The Internet home page of every DoD Component shall link to the FOIA Requester Service Center for that activity.

(ii)Submit to the Director of Administration and Management (DA&M), OSD, the names of personnel to serve as DoD Component FOIA Public Liaisons. Each Component shall have at least one FOIA Public Liaison. Intermediate level Public Liaisons may be named within those Components that have a large number of FOIA Requester Service Centers. The FOIA Public Liaisons are responsible to ensure that the FOIA Requester Service Centers' Web sites comply with § 286.4 (b)(2)(i)(A). Additionally, the FOIA Public Liaisons are responsible for the Component's compliance with the objectives of E.O. 13392, to include the reduction or elimination of FOIA backlogs.

(c)*Prompt action on requests.*

(1)When a member of the public complies with the procedures in this part and DoD Component supplementing regulations for obtaining DoD records, and the request is received by the official designated to respond, the DoD Component shall endeavor to provide a final response determination within the statutory 20 working days (5 U.S.C. 552(a)(6)(A)(i)). If unusual circumstances prevent a final response determination within the statutory time period, the Component shall advise the requester of this in writing, and provide a new completion date, which shall be not later than an additional 10 working days. If the Component needs more than this 10-day extension, it will provide the requester an opportunity to narrow the scope of the request, or arrange for an alternative timeframe.

(i)Unusual circumstances are:

(A)The responsive documents are located at a facility geographically separated from the office processing the FOIA request.

(B)The responsive documents are voluminous.

(C)One or more other outside agencies have a substantial interest in either the determination or the subject matter of the request, requiring the DoD Component processing the request to consult with the other agencies. This would include the submitter notice process (§ 286.18(d)(1)(i)(A)).

(ii)A final response determination is notification to the requester that the records are released, or that the records cannot be provided for one or more of the reasons in § 286.13. Interim responses acknowledging receipt of the request are encouraged, as are negotiations with the requester concerning the scope of the request, the response timeframe, and the fee agreement. Such communications do not, however, constitute a final response determination.

(2)If a request fails to meet the minimum requirements of this part, the DoD Component shall inform the requester how to perfect or correct the request. The statutory 20-working day time limit applies upon receipt of a perfected or correct FOIA.

(d)*Use of exemptions.* It is DoD policy (32 CFR part 285) to make records publicly available, unless the record or portions thereof qualify for withholding under one or more of the 9 exemptions.

(e)*Waiver of exemptions.* Records released under the authority of this part are considered to be in the public domain. The disclosure of exempt records without authorization by the appropriate DoD official is not considered a FOIA release. Such a release does not waive the Department of Defense's authority to assert FOIA exemptions to withhold the same records in response to a FOIA request. Also, while authority may exist to disclose records to individuals in their official capacity, the provisions of this part apply if the same individual seeks the records in a private or personal capacity.

(f)*Creating a record.*

(1)A record must exist and be in DoD possession and control at the time of the search to be subject to this part and the FOIA. The DoD Components are not obligated to create, compile, or obtain a record to satisfy a FOIA request. The DoD Components, however, may compile a new record when so doing would result in a more useful response to the requester or would be less burdensome to the agency than providing existing records. Any such compilation should be coordinated with and approved by the requester. The cost of creating or compiling such a record may not be charged to the requester unless the fee for creating the record is equal to or less than the fee that would be charged for providing the existing record. Fee assessments shall be in accordance with § 286.25.

(2)With regards to electronic data, the issue of whether records are actually created or merely extracted from an existing database is not always readily apparent. Consequently, when processing FOIA requests for electronic data where creation of a record, programming, or organizing in a particular format is questionable, if the Component has the capability to respond to the request, and the effort would be a business-as-usual approach then the request should be processed.

(i)A business as usual approach exists when the Component has the capability to process the request without a significant expenditure of resources. If processing a request would cause a significant interference with the operation of the Component's automated information system, then it has a significant expenditure of resources.

(ii)Creating computer programs and/or purchasing additional hardware to extract electronic mail that has been archived for the purpose of emergency retrieval normally are not viewed as business as usual. This is especially true if extensive resources are needed to complete the project.

(iii)Creating a computer program that produces specific requested fields or records contained within a database normally is viewed as business as usual. The time to create this program shall be considered as “computer operator” [clarify] search time for fee assessment purposes and the requester may be assessed fees in accordance with § 286.25.

(3)The DoD Components are not required to expend DoD funds to establish data links that provide real-time or near-real-time data to a FOIA requester. The Components are responsible to provide existing data downloaded to electronic media or printed in hard copy at the time the FOIA request is received or processed. If the information would serve the public interest or need, and is economically feasible, the Component may consider posting the information on the Internet.

(g)*Description of a requested record.* The requester is responsible to provide a description of the desired record that enables the Government to locate the record with a reasonable amount of effort. Generally, a reasonable description contains sufficient information to permit the conduct of an organized, non-random search for the record based on the DoD Component's filing arrangements and existing retrieval systems. The DoD Component's decision on the reasonableness of the description must be based on a knowledge of its files, and not on the potential volume of records that may be located and the concurrent review effort to determine releasability. The fact that a FOIA request appears broad or burdensome does not, in itself, entitle the DoD Component to deny the request on the grounds that it does not reasonably describe the record sought.

(h)*Consultations and referrals.* The DoD FOIA referral procedures are based on the concept that the originator of information contained within a record shall make a release determination on that information.

(1)If the DoD Component receives a request for records originated by another DoD Component, it should contact that Component to determine if it also received the request, and if not, obtain concurrence to transfer the request or to advise the requester to send the request to the correct Component. If the request is to be transferred, the requester shall be advised of the action taken, unless exempt information would be revealed by the fact of the referral. Any DoD Component receiving a request that has been misaddressed shall transfer the request to the proper address and advise the requester. DoD Components transferring requests shall include point of contact name, telephone number, and e-mail address in the cover memorandum.

(2)The DoD Component holding a record originated by another DoD Component or agency outside the Department of Defense shall refer a FOIA request for that record, as well as the record, to the originating agency for response directly to the requester. If the DoD Component holding the record has an equity in the document, it shall provide an opinion on the releasability of the record with the referral. If appropriate, the name of the IDA responsible for the decision to withhold all or parts of the record should be provided. Whenever a record is referred to another DoD Component or to an agency outside of the Department of Defense for a release determination and direct response, the requester shall be informed of the referral, unless it has been determined that notification would reveal exempt information. Referred records shall only be identified to the extent consistent with security requirements. DoD Components referring requests shall include point of contact name, telephone number, and e-mail address in the cover memorandum.

(3)At times, a DoD Component may locate a responsive record that it originated and determine another DoD Component or agency outside the Department of Defense to have a valid interest or equity in the record. In such situations, the DoD Component shall consult with the other DoD Component or agency and obtain its release recommendation. The consulted agency will provide its release recommendation back to the originating Component, which will then respond to the requester. Normally, the requester will not be advised of this consultation unless information is withheld by the consulted agency. However, if the record was created for the use of the other DoD Component or agency by the originating DoD Component (e.g., Defense Contract Audit Agency audit reports), then the procedures of § 286.18(a) apply.

(4)DoD Components receiving transferred or referred requests shall answer them in accordance with the time limits established by the FOIA, this part, and their multi-track processing systems, based upon the date of initial receipt of the request at the referring component or agency.

(5)Prior to notifying a requester of a transfer or referral to another DoD Component or agency outside the Department of Defense, the DoD Component possessing the initial request shall, as appropriate, consult with the other agency to determine if that agency's association with the subject of the request is exempt. If the association is exempt, the DoD Component possessing the initial request will protect the association and any exempt information without revealing the identity of the protected agency. The protected agency shall be responsible for submitting the justifications required in any litigation.

(6)DoD Components locating records originating with the National Security Council (NSC), the White House, or the White House Military Office

(WHMO)or containing information in which these agencies would have a concurrent reviewing interest, shall forward the records to the Executive Services Directorate, Office of Freedom of Information (OFOI). OFOI is also the FOIA Requester Service Center for the OSD/Joint Staff. Its address is at Appendix B to this part. The OFOI shall coordinate with the NSC, White House, or WHMO and return the records to the originating agency after coordination for response to the requester.

(7)On occasion, the Department of Defense receives FOIA requests for U.S. Government Accountability Office

(GAO)records containing DoD information. Even though the GAO is outside the Executive Branch and not subject to the FOIA, all FOIA requests for GAO documents containing DoD information received either from the public, or on referral from the GAO, shall be processed under the provisions of the FOIA.

(i)*Authentication.* At the request of a FOIA requester, records provided under this part shall be authenticated with an appropriate seal whenever necessary to fulfill an official Government or other legal function. This service is in addition to that required under the FOIA and is not included in the FOIA fee schedule. The DoD Components may charge a fee of $5.20 for each authentication.

(j)*Combatant commands.*

(1)The Combatant Commands are placed under the jurisdiction of the OSD, instead of the administering Military Department or the Chairman of the Joint Chiefs of Staff, for the purpose of administering the DoD FOIA Program. This policy represents an exception to the policies directed in DoD Directive 5100.3; it authorizes and requires the Combatant Commands to process FOIA requests in accordance with 32 CFR part 285 and this part. When requested, the Combatant Commands shall forward directly to the DFOIPO all correspondence associated with the appeal of an initial denial for records under the provisions of the FOIA. The Combatant Commands will advise requesters that they have the right to appeal any adverse determinations to the DFOIPO.

(2)The Combatant Commands shall comply with all provisions of this part that apply to the DoD Components except the appointments of an appellate authority and a FOIA Public Liaison.

(k)*Security clearances and access for FOIA personnel.* Due to the nature of their duties and responsibilities, FOIA personnel need access to all records requested through their respective offices, regardless of the sensitivity or classification of the information. The DoD Components shall ensure FOIA personnel have the appropriate clearances and accesses to perform their duties.

(l)*Use of Contractors in FOIA Administration.* According to DoD Instruction 1100.22 and OMB Circular A-76, there are certain functions, known as inherently governmental activities that cannot be outsourced to a contractor. Since some of the functions of the FOIA Officer are inherently governmental, the DoD Components shall be careful not to outsource those FOIA functions that are inherently governmental. Primarily, activities which require the exercise of substantial discretion in applying government authority or in making decisions for the government are inherently governmental. Inherently governmental FOIA functions include:

(1)Formulating and/or approving FOIA policies and procedures.

(2)Making final determinations regarding whether to treat incoming correspondence as a FOIA or Privacy Act request.

(3)Deciding any issues regarding the scope or interpretation of the request.

(4)Determining the appropriateness of claimed exemptions.

(5)Approving the approach taken in negotiations/discussions with the requester.

(6)Deciding administrative appeals.

(7)Conducting final review of all outgoing correspondence, memoranda, and release packages.

(8)Drafting court documents for filing in FOIA lawsuit in which the government's legal strategy and affirmative defense are determined.

(9)Conducting FOIA training if it involves issues of DoD policy.

(10)Making final determination of requests for expedited processing, fee category, and fee waivers.

(m)*Records management.* FOIA records shall be maintained and disposed of in accordance with the National Archives and Records Administration General Records Schedule and DoD Component records schedules.

(n)*Relationship between the FOIA and the Privacy Act.* Not all requesters are knowledgeable of the appropriate statutory authority to cite when requesting records, nor are all of them aware of appeal procedures. In some instances, requesters may cite either the FOIA or 5 U.S.C. 552a, commonly known as the Privacy Act, or they may cite neither the FOIA nor the Privacy Act but will imply one or both. For these reasons, the below guidelines are provided to ensure requesters receive the greatest access rights under both statutes. Privacy Act requests can be made only by requesters asking for information on themselves contained within a Privacy Act system of records. If the requested information is on another person, the Privacy Act does not apply. These requests shall be processed under the FOIA.

(1)Requesters who seek records about themselves contained in a Privacy Act system of records, and who cite or imply the FOIA and/or the Privacy Act, will have their requests processed under the provisions of both the Privacy Act and the FOIA. If the Privacy Act system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1), and if the records, or any portion thereof, are exempt under the FOIA, the requester shall be so advised with the appropriate Privacy Act and FOIA exemption(s). Appeals shall be processed under both the FOIA and the Privacy Act.

(2)Requesters who seek records about themselves that are not contained in a Privacy Act system of records and who cite or imply the Privacy Act will have their requests processed under the provisions of the FOIA, since the Privacy Act does not apply to these records. Appeals shall be processed under the FOIA.

(3)Requesters who seek access to agency records and who cite or imply the FOIA will have their requests and appeals processed under the FOIA.

(4)If the record is required to be released under the FOIA, the Privacy Act does not bar its disclosure. Unlike the FOIA, the Privacy Act applies only to U.S. citizens and aliens admitted for permanent residence.

(5)Requesters shall be advised in the final response letter which statutory authorities were used, inclusive of appeal rights.

(o)*Non-responsive information in responsive records.* The DoD Components shall interpret FOIA requests liberally when determining which records are responsive, and may release non-responsive information. Responsive documents may contain large amounts of non-responsive information, the review of which may cause delays in responding to the requester. In these cases, the DoD Components should identify the information which is non-responsive, redact it, and annotate it as non-responsive. The Components shall not apply these procedures to documents that have a relatively small percentage of non-responsive information. Additionally, redactions of non-responsive information shall not be made in sections smaller than the paragraph level. That is, a non-responsive sentence within an otherwise responsive paragraph shall not be redacted as non-responsive.

(p)*Honoring form or format requests.* The DoD Components shall provide the record in any form or format requested if the record is readily reproducible in that form or format in the Component's automated system. Every effort will be made to ensure the copy provided is in a reasonably usable form. The DoD Components shall make reasonable efforts to use available office equipment to digitally reproduce hard copy records onto digital media. If a Component must outsource to reproduce a record into the requested format, the readily-reproducible criterion is not met. In responding to requests for records, the DoD Components shall make reasonable efforts to search for records in electronic form or format if maintained in automated systems, except when such efforts would significantly interfere with the operation of the automated systems. Such determinations shall be made on a case by case basis.

(q)*Annual report.* The Annual FOIA Report is mandated by 5 U.S.C. 552(e)(1) and completed on a fiscal year basis. Additionally, E.O. 13392 requires additional reporting in the annual report through fiscal year 2007. Due to the magnitude of the requested statistics and the need to ensure accuracy, the DoD Components shall track this data as requests are processed. This will also facilitate quick compilation of the statistics in completing the report.

(1)Each September, DFOIPO shall post on its Web site instructions to the Components concerning Component input for the annual report. The DoD Components shall forward their report to DFOIPO no later than November 30. In turn, the DA&M shall produce a consolidated report for submission to the Attorney General, and will place a copy of this report on the Internet for public access. The DoD Components shall use the current edition of DD Form 2564, “Annual Report: Freedom of Information Act.”

(2)This reporting requirement is assigned Report Control Symbol DD-DA&M(A)1365, Freedom of Information Act Report to Congress. Subpart B—FOIA Reading Rooms § 286.7 Requirements.

(a)*Reading room.* The FOIA requires records described in 5 U.S.C. 552(a)(2)(A), (B), (C), and

(D)be made available in an appropriate facility where the public may inspect or copy them. This facility is known as the “FOIA reading room”. In addition to these records, the DoD Components may elect to place other records in their reading rooms. The DoD Components shall comply with this provision of the FOIA by providing a location accessible to the public for viewing these documents. In lieu of paper copies, the Component may digitize the documents and have them available on a personal computer in the reading room. The DoD Components may share reading room facilities if the public is not unduly inconvenienced, and also may establish decentralized reading rooms.

(b)*Electronic reading room.* The FOIA requires records described in 5 U.S.C. 552(a)(2)(A), (B), (C), and

(D)and created on or after November 1, 1996, be made available electronically. The DoD Components will meet the electronically available requirement by posting the records in an electronic reading room on their FOIA Requester Service Center Web sites.

(1)These electronic reading rooms will have four designated sections, each one corresponding to one of the four sections described in paragraph

(b)of this section. If a Component does not have relevant documents to post in any of the four sections of the FOIA Requester Service Center electronic reading room, that section of the reading room will contain the annotation that no documents apply.

(2)If a DoD Component has documents that meet the qualifications of 5 U.S.C. 552(a)(2)(A), (B), (C), and

(D)posted on a separate Web site, the Component's FOIA Requester Service Center is not required to post these same documents. Instead, the electronic reading room shall link to the other Web site. For example, if a Component maintains electronic copies of its issuances on a separate Web site, then the (a)(2)(C) section of the electronic reading room shall have a link to that site.

(3)*Exemptions.* All information that qualifies for withholding under one or more of the FOIA exemptions described in § 286.14 of this part shall be deleted from all 5 U.S.C. 552(a)(2) records that are made available to the public. § 286.8 Record availability. 5 U.S.C. 552(a)(2)(A), (B), (C), and

(D)records are:

(a)*“(a)(2)(A)” records.* Final opinions, including concurring and dissenting opinions, and orders made in the adjudication of cases, as defined in 5 U.S.C. 551, that may be cited, used, or relied on as precedents in future adjudications.

(b)*“(a)(2)(B)” records.* Statements of policy and interpretations that have been adopted by the agency and are not published in the **Federal Register** .

(c)*“(a)(2)(C)” records.* Administrative staff manuals and instructions, or portions thereof, that establish DoD policy or interpretations of policy that affect the public. This provision does not apply to instructions for employees on tactics and techniques to be used in performing their duties, or to instructions relating only to the internal management of the DoD Component. Examples of manuals and instructions not normally made available are:

(1)Those issued for audit, investigation, and inspection purposes, or those that prescribe operational tactics, standards of performance, or criteria for defense, prosecution, or settlement of cases.

(2)Operations and maintenance manuals and technical information concerning munitions, equipment, systems, and intelligence activities.

(d)*“(a)(2)(D)” records.* Records released to the public pursuant to 5 U.S.C. 552(a)(3) because of the nature of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. Two additional requests satisfy the criterion of subsequent requests. These records are referred to as “FOIA-processed (a)(2) records.”

(1)The DoD Components shall decide on a case by case basis whether records fall into this category, based on the following factors:

(i)The previous experience of the DoD Component with similar records.

(ii)The particular circumstances of the records involved, including their nature and the type of information they contain.

(iii)The identity and number of requesters and whether there is widespread press, historic, or commercial interest in the records.

(2)This provision of § 286.8 is intended for situations where public access in a timely manner is important. It is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. The DoD Components may remove the (a)(2)(D) records from their Web site when the appropriate officials determine that access is no longer necessary according to the factors of § 286.8(d)(1).

(3)Should a requester submit a FOIA request for FOIA-processed “(a)(2)” records and insist that it be processed, the DoD Components shall process the request. However, the DoD Components have no obligation to process a FOIA request for 552(a)(2)(A), (B), and

(C)records because these records are required to be made available to the public. § 286.9 Indexes.

(a)*“(a)(2)” records.*

(1)Each DoD Component shall maintain in each FOIA reading room an index of records described in § 286.7 that are issued, adopted, or promulgated, after July 4, 1967.

(2)Any “(a)(2)” record relied on, used, or cited as precedent by an agency against a party that is issued, promulgated, or adopted after July 4, 1967, must be indexed and either made available or published, or the individual must have actual and timely notice of the contents of such records. Such records issued, promulgated, or adopted before July 4, 1967, need not be indexed, but must be made available upon request if not exempted under § 286.13.

(3)Each DoD Component shall promptly publish quarterly or more frequently, and distribute by sale or otherwise, copies of each index of “(a)(2)” records or supplements thereto, unless it publishes in the **Federal Register** an order containing a determination that publication is unnecessary and impracticable. A copy of each index or supplement not published shall be provided to a requester at a cost not to exceed the direct cost of duplication as set forth in § 286.24 of this part.

(4)Each index of “(a)(2)” records or supplement thereto shall be arranged by topical or descriptive words, rather than by case name or numbering system, so that the public can readily locate material. Case name and numbering arrangements may also be included for DoD Component convenience.

(5)Listing of electronically available “(a)(2)” documents in a Component's electronic reading room satisfies this requirement.

(b)*Major information systems.* 5 U.S.C. 552(g)(1) and

(2)require agencies to make publicly available an index of all major information systems and a description of major information and record locator systems. This requirement will be met for the entire Department of Defense by DFOIPO on its Web site. § 286.10 “(a)(1)”records.

(a)Although (a)(1) records are not required to be made available in response to FOIA requests or in FOIA reading rooms, they shall be made available when feasible. Examples of “(a)(1)” records are descriptions of an agency's central and field organization and, to the extent they affect the public, rules of procedures; descriptions of forms available; instructions as to the scope and contents of papers, reports, or examinations; and any amendments, revisions, or reports of the aforementioned records.

(b)In accordance with 5 U.S.C. 552(a)(1), each DoD Component shall disclose, through publication in the **Federal Register** , information describing its organization, functions, procedures, substantive rules, and statements of general policy. Any available index of DoD Component records published in the **Federal Register** , in addition to “(a)(1)” records, shall be made available to the public in DoD Component FOIA reading rooms and electronically. Subpart C—Exemptions § 286.13 General provisions.

(a)Records that meet FOIA exemption criteria may be withheld from public disclosure and need not be published in the **Federal Register** , made available in a reading room, or provided in response to a FOIA request.

(b)Nine types of records may be withheld in whole or in part from public disclosure unless otherwise prescribed by law. In addition, a discretionary release of a record to one requester shall prevent the withholding of the same record under a FOIA exemption if the record is subsequently requested by someone else. However, a FOIA exemption may be invoked to withhold information that is similar or related that has been the subject of a discretionary release.

(c)In applying exemptions, the identity of the requester and the purpose for which the record is sought are irrelevant, with the exception that an exemption may not be invoked where the particular interest to be protected is the requester's interest.

(d)The DoD Components may have a situation where, in responding to a FOIA request, admitting the existence or nonexistence of a record would itself reveal information protected from release by one of the 9 Exemptions. In this situation, the DoD Component shall neither confirm nor deny the existence or nonexistence of the requested record. This is commonly called a “Glomar” response (U.S. Attorney General Memorandum), and the appropriate exemption must be cited in the response. This situation most commonly arises with Exemptions 1, 6, and 7; however, it could arise with other exemptions. A “refusal to confirm or deny” response must be used consistently, not only when a record exists, but also when a record does not exist. If not used consistently, the pattern of a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist, will itself disclose exempt information. § 286.14 Applying the FOIA exemptions. The 9 types of exempted records and procedures for applying them are as follows:

(a)*Exemption 1.* Pursuant to 5 U.S.C. 552(b)(1), records properly and currently classified in the interest of national defense or foreign policy, as specifically authorized under the criteria established by an existing Executive Order establishing classification criteria and implemented by regulation, such as DoD 5200.1-R, are exempt from disclosure. If the responsive information is not classified at the time of the FOIA request, a classification review may be undertaken to determine whether the information should be classified. The procedures in DoD 5200.1-R apply in this situation. If the information qualifies as Exemption 1 information, there is no discretion regarding its release. The requester will be advised as to which sections of the Executive Order apply in determining the information classified. In addition, Exemption 1 shall be invoked when the following situations are apparent:

(1)Individual items of unclassified information, when compiled, reveal additional associations or relationships that meet the standard for classification under an existing Executive Order and DoD 5200.1-R, and are not otherwise revealed in the individual items of information. This is known as the “mosaic,” or “compilation” approach.

(2)The existence or nonexistence of a record would itself reveal classified information.

(b)*Exemption 2.* Pursuant to 5 U.S.C. 552(b)(2), records related solely to the internal personnel rules and practices of the Department of Defense or any of the DoD Components are exempt from disclosure. This exemption has two profiles, high “(b)(2)” and low “(b)(2).”

(1)*High “(b)(2).”* Records qualifying under high “(b)(2)” are those containing or constituting rules, regulations, orders, manuals, directives, instructions, and unclassified portions of security classification guides, the release of which would allow circumvention of these rules, regulations, and policies, thereby substantially hindering the effective performance of the mission of the Department of Defense. Examples include:

(i)Critical infrastructure information that reasonably could be expected to enable someone to succeed in causing the harms described in Homeland Security Presidential Directive 7. 2 This exempt information could include agency vulnerability assessments or evaluations of items of critical infrastructure that are internal to the Government. 2 Copies of Homeland Security Presidential Directive can be viewed at *http://www.whitehouse.gov/news/releases/2003/12/20031217-5.html.*

(ii)Those operating rules, guidelines, and manuals for DoD investigators, inspectors, auditors, or examiners that must be protected in order for the DoD Component to fulfill a legal requirement.

(iii)Personnel and other administrative matters, such as examination questions and answers used in training courses or in the determination of the qualifications of candidates for employment, entrance on duty, advancement, or promotion.

(iv)Computer software (Government-owned), the release of which would allow circumvention of a statute or of DoD rules, regulations, orders, manuals, directives, or instructions. In this situation, the use of the software must be closely examined to ensure a circumvention possibility exists.

(2)*Low “(b)(2).”* Records qualifying under low “(b)(2)” are those that are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and for which processing the request would constitute an administrative burden. Examples include rules for personnel use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and administrative data such as file numbers, mail routing stamps, initials, data processing notations, brief references to previous communications, and other like administrative markings.

(c)*Exemption 3.* Pursuant to 5 U.S.C. 552(b)(3), records concerning matters that another statute specifically exempts from disclosure are exempt under this exemption. This exemption allows for the withholding of information because its release is prohibited by another statute only if one of two disjunctive requirements is met: The statute requires that the information be withheld from the public in such a manner as to leave no discretion on the issue, or the statute establishes particular criteria for withholding or refers to particular types of matters to be withheld. The DFOIPO maintains on its Web site a list of Exemption 3 statutes used within the Department of Defense.

(d)*Exemption 4.* Pursuant to 5 U.S.C. 552(b)(4), records containing trade secrets or commercial or financial information received by the DoD Component from a person or organization outside the Government are exempt from release. Information protected by this exemption must be trade secrets or commercial or financial records, the disclosure of which is likely to cause substantial harm to the competitive position of the submitter providing the information; impair the Government's ability to obtain necessary information in the future; or impair some other legitimate Government interest. If the information qualifies as Exemption 4 information, there is no discretion in its release.

(1)Examples of information protected by Exemption 4 include:

(i)Commercial or financial information received in confidence in connection with loans, bids, contracts, or proposals.

(ii)Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures.

(iii)Personal statements given in the course of inspections, investigations, or audits.

(iv)Financial data provided by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the Department of Defense.

(v)Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.

(vi)Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, or developed in part with Federal funds and in part at private expense. The contractor or subcontractor must retain legitimate proprietary interests in such data in accordance with 10 U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement, Chapter 2 of title 48 Code of Federal Regulations, Subpart 227.71-227.72. Technical data developed exclusively with Federal funds may be withheld under Exemption 3, if it meets the criteria of 10 U.S.C. 130 and 48 CFR. See § 286.14.

(vii)Copyrighted information under 17 U.S.C. 106.

(viii)Proprietary information submitted strictly on a voluntary basis, absent any exercised authority prescribing criteria for submission. Examples of exercised authorities prescribing criteria for submission are statutes, Executive Orders, regulations, invitations for bids, requests for proposals, and contracts. Submission of information under these authorities is not voluntary.

(2)When the Components receive FOIA requests for information that could be protected by this Exemption, submitter notice shall be provided. See § 286.2.

(e)*Exemption 5.* Pursuant to 5 U.S.C. 552(b)(5), inter-agency or intra-agency memorandums or letters containing information considered privileged in litigation are exempt from disclosure. The courts have construed “privileged in litigation” to mean information that is normally privileged in the civil discovery context (U.S. Department of Justice

(DOJ)Guide). 3 Merely being an internal record is an insufficient basis for withholding under this exemption. Records that are not available routinely through the discovery process in the course of litigation with the agency because they are privileged should not be withheld under this exemption. The most common discovery privileges have been incorporated into Exemption 5. These privileges are the deliberative process, the attorney work product, and the attorney client privilege. 3 Copies of U.S. Department of Justice

(DOJ)Guide can be viewed at *http://www.usdoj.gov/oip/.*

(1)*Threshold.*

(i)A document must meet the threshold requirement of being an inter- or intra-agency document before the proper privilege can be identified in any given case. Because in many instances the Government must seek expert advice from external entities (or consultants), the courts developed an “outside consultant” test which helps in determining whether such an external entity qualifies as an “agency” for the purposes of this exemption. If an entity meets the test, then documents it originates may be protected by Exemption 5.

(ii)The Components should be careful to ensure that the outside consultant is not an interested party in the agency decision-making process. In 2001, the U.S. Supreme Court ruled that the threshold of Exemption 5 does not encompass communications between an outside consultant (in this case, several Indian tribes) and the Government (the U.S. Department of the Interior (DOI)). In this case, the outside consultants offered an expert opinion on an issue under consideration by DOI. The Supreme Court found that the tribes had an interest in the outcome of the DOI final decision; therefore, the DOI communications did not meet the threshold of Exemption 5. (DOJ FOIA Post Web site)

(2)The privileges and types of information protected by Exemption 5 include:

(i)*Deliberative process privilege.* To withhold information under this privilege, the information must be both deliberative and predecisional, and part of the decision-making process. Deliberative means the information is internal advice, recommendations, or subjective evaluations, as contrasted with factual matters, that are reflected in records relied upon in the decision-making process of an agency, whether within or among agencies. Predecisional means the information was created before the decision maker reached a final decision. Factual information cannot be withheld from a requester under Exemption 5 except under one of two circumstances. The first circumstance is when the author of a document selects specific facts out of a larger group of facts and this very act is deliberative in nature. This information qualifies for withholding because its release would reveal the author's internal thought processes. The second circumstance exists when the factual information is so inextricably connected to the deliberative material that its disclosure would expose or cause harm to the agency's deliberations. A direction or order from a superior to a subordinate generally does not qualify as a deliberative process document if it constitutes policy guidance or a decision. However, correspondence from a superior to a subordinate may qualify if it constitutes a discussion of preliminary matters or a request for information or advice that would be relied upon in the decision-making process. An agency's final decision cannot be withheld under the privilege unless it becomes part of another, higher-level decision-making process (such as the agency budgetary process). The deliberative process privilege is temporal in nature because once the final agency decision is made the privilege cannot be used to withhold the final decision or any post-decisional documents related to the decision. Examples of deliberative process documents include:

(A)Staff papers, to include after-action reports, inspection reports, lessons learned, and situation reports containing staff evaluations, advice, opinions, or suggestions.

(B)Advice, suggestions, or evaluations prepared on behalf of the Department of Defense by individual consultants or by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups that are formed for the purpose of obtaining advice and recommendations.

(C)Evaluations by DoD Component personnel of contractors and their products.

(D)Information of a speculative, tentative, or evaluative nature, or such matters as proposed plans to procure, lease, or otherwise acquire and dispose of materials, real estate, facilities or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate Government functions.

(E)Agency materials underlying the President's budget decisions as described in OMB Circular No. A-11. This includes planning, programming, and budgetary information that is involved in the defense planning and resource allocation process and outyear discretionary data.

(ii)*Attorney client privilege.* This privilege protects confidential communications between an attorney and a client relating to legal matters for which the client has sought professional advice. The information the client supplies to the attorney and the advice the attorney gives to the client in return are protected under this privilege. Courts extend the “confidential” element of this privilege to lower echelon Government employees because it is recognized when the Government is seeking legal advice it usually involves more than one client and one attorney. This privilege cannot be used if confidentiallity is compromised.

(iii)*Attorney work product privilege.* This privilege protects documents prepared by an attorney or at an attorney's direction in reasonable anticipation of litigation. Unlike the deliberative process privilege, under the attorney work product privilege all of the information can be withheld, including the facts. Similarly, this privilege has no time limit. This privilege can be used after the litigation is complete.

(iv)*Government trade secret privilege.* This privilege protects trade secrets or other confidential research, development, or commercial information owned by the Government, where premature release is likely to affect the Government's negotiating position or other commercial interest.

(v)*Aircraft accident witness statements privilege.* This privilege protects witness statements generated during military aircraft accident investigations.

(vi)*Presidential communications privilege.* This privilege protects communications among the President and his advisors created within an agency to assist the President in the exercise of his nondelegable constitutional duties.

(f)*Exemption 6.* Pursuant to 5 U.S.C. 552(b)(6), information in personnel and medical files, as well as similar in other files, that if disclosed to a requester other than the person whom the information is about, would result in a clearly unwarranted invasion of personal privacy is exempt from disclosure. If the information qualifies as Exemption 6 information, there is no discretion in its release.

(1)When applying this exemption, an agency must balance the public interest in disclosure and the individual's privacy interest. When there is no public interest in the requested information, the information can be withheld even if there is only a negligible privacy interest. The public interest to be considered when applying this exemption is whether the information sheds light on the operations or activities of the Federal government. The requester has the burden to show there is a public interest in disclosure.

(2)A privacy interest may exist in personal information even though the information has been disclosed at some place and time. This is known as the concept of practical obscurity. For example, information that was once publicly known (a court-martial trial 40 years ago) may no longer be in the public's eye and has faded from memory. In this case, the privacy interest in this type of situation may have increased over time, the public interest may have decreased over time, and therefore an agency can now withhold the once public information.

(3)Examples of other files containing personal information similar to that contained in personnel and medical files include:

(i)Those files compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Armed Forces, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances or for access to particularly sensitive classified information.

(ii)Files containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action may be taken.

(4)On November 9, 2001, subsequent to the President declaring a national emergency, the DA&M issued a memorandum authorizing the DoD Components to withhold lists of personally identifying information of DoD personnel, to include active duty military personnel, civilian employees, contractors, members of the National Guard and Reserves, and military dependents. Additionally, personally identifying information of DoD military and civilian personnel who are assigned to overseas, sensitive, or routinely deployable, units is exempt from release under Exemption 3, with section 130b of 10 U.S.C. as the withholding statute. Names and duty addresses (postal and/or e-mail) published in telephone directories, organizational charts, rosters, and similar materials for personnel are considered “lists of personally identifying information;” and therefore qualify for withholding under Exemption 6 (and Exemption 3 if applicable).

(5)Home addresses, telephone numbers, and private e-mail addresses are normally protected by this exemption. This includes lists of home addressees and military quarters' addressees that do not include the occupants' names.

(6)This exemption shall not be used in an attempt to protect the privacy of a deceased person. It may be used to protect the privacy of the deceased person's surviving family members if disclosure would rekindle grief, anguish, pain, embarrassment, or even disruption of peace of mind of surviving family members. In such situations, the DoD Components shall balance the surviving family members' privacy interests and the public's interest to determine its releasability.

(7)This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal information in which a privacy interest exists, and the public interest in disclosure is not sufficient to outweigh the privacy interest. In this situation, the DoD Components shall neither confirm nor deny the existence or nonexistence of the record being requested. This is known as a “Glomar response”, and Exemption 6 must be cited in the response. Refusal to confirm or deny should not be used when:

(i)The person whose personal privacy is in jeopardy has provided the requester with a privacy waiver.

(ii)The person seeking access to an agency record initiated or directly participated in an investigation that leads to the creation of that record.

(iii)The person whose personal privacy is in jeopardy is deceased, the agency is aware of that fact, and disclosure would not invade the privacy of the deceased's family.

(g)*Exemption 7* . Pursuant to 5 U.S.C. 552(b)(7), records or information compiled for law enforcement purposes are exempt from disclosure upon the identification of one of the six harms delineated in the 6 subparts of Exemption 7. Law enforcement purposes include civil, criminal, military, regulatory, and administrative law, including the implementation of Executive Orders or regulations issued pursuant to law. This exemption may be invoked to prevent disclosure of documents not originally created for, but later gathered for, law enforcement purposes.

(1)*Conditions under which exception 7 applies.* Exemption 7 applies only when production of such law enforcement records or information:

(i)*Exemption 7A.* This applies when the disclosure of law enforcement records could reasonably be expected to interfere with enforcement proceedings (5 U.S.C. 552(b)(7)(A)).

(ii)*Exemption 7B.* This applies when the disclosure of law enforcement records would deprive a person of the right to a fair trial or to an impartial adjudication (5 U.S.C. 552(b)(7)(B)).

(iii)*Exemption 7C* . This applies when the disclosure of law enforcement records could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a living person, including surviving family members of an individual identified in such a record (5 U.S.C 552(b)(7)(C)).

(iv)*Exemption 7D* . This applies when the disclosure of law enforcement records could reasonably be expected to disclose the identity of a confidential source, including a source within the Department of Defense; a state, local, or foreign agency or authority; or any private institution that furnishes the information on a confidential basis; and could disclose information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation (section 5 U.S.C. 552(b)(7)(D)).

(v)*Exemption 7E.* This applies when the disclosure of law enforcement records would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, if such disclosure could reasonably be expected to risk circumvention of the law (5 U.S.C. 552(b)(7)(E)).

(vi)*Exemption 7F.* This applies when the disclosure of law enforcement records could reasonably be expected to endanger the life or physical safety of any individual (5 U.S.C. 552(b)(7)(F)).

(2)*Examples of Exemption 7 applications.*

(i)Statements of witnesses and other material developed during the course of the investigation and all materials prepared in connection with related Government litigation or adjudicative proceedings may be exempt from disclosure pursuant to Exemptions 7A, 7C, and/or 7D.

(ii)The identity of firms or individuals being investigated for alleged irregularities involving contracting with the Department of Defense when no indictment has been obtained nor any civil action filed against them by the United States may be exempt from disclosure pursuant to Exemptions 7A and/or 7C.

(iii)Information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement agency or a lawful national security intelligence investigation, may be exempt from disclosure pursuant to Exemptions 7A, 7C and/or 7D. National security intelligence investigations include background security investigations and those investigations conducted for the purpose of obtaining affirmative or counterintelligence information.

(iv)Emergency action plans, guidelines for response to terrorist attacks, analyses of security procedures, and other sensitive information that could prove deadly if obtained by those seeking to do harm to the public on a large scale may be exempt from disclosure pursuant to Exemptions 7E and/or 7F. The Components should also assert Exemption 2 in conjunction with Exemption 7E to withhold this type of law enforcement information.

(3)*Exclusions.* The FOIA contains 3 special protection provisions referred to as record “exclusions.” Of these exclusions, only 2 are used by the Department of Defense. These exclusions expressly authorize Department of Defense law enforcement agencies to treat especially sensitive records under certain specified circumstances as not subject to the requirements of the FOIA. The DoD Component considering invoking one of these exclusions shall first consult with legal counsel and with DFOIPO. In turn, DFOIPO will consult with the Office of Information and Privacy, Department of Justice. If the records are determined to be excluded, the response to the requester will state that no records were found.

(i)*Exclusion 1.* The DoD Components may treat records requested as not subject to the FOIA when the following circumstance applies:

(A)The request involves access to records or information compiled for law enforcement purposes.

(B)The investigation or proceeding involves a possible violation of criminal law where there is reason to believe that the subject of the investigation or proceeding is unaware of the pending investigation or proceeding.

(C)The disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.

(ii)*Exclusion 2* . The DoD Components may treat records requested as not subject to the FOIA when a third party uses an informant's name or personal identifier to request informant records maintained by a criminal law enforcement organization within the DoD Component, and the informant's status as an informant has not been officially confirmed.

(h)*Exemption 8.* Pursuant to 5 U.S.C. 552(b)(8) of Reference (b), records contained in or related to examination, operation, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions are exempt from disclosure.

(i)*Exemption 9* . Pursuant to 5 U.S.C. 552(b)(9), records containing geological and geophysical information and data (including maps) concerning wells are exempt from disclosure. Subpart D—FOIA Request Processing § 286.17 General provisions.

(a)*Release of agency records.* 5 U.S.C. 552(a) mandates release of agency records in response to a written request, unless:

(1)The record is subject to one or more FOIA exemptions.

(2)The record has not been described well enough to enable the DoD Component to locate it with a reasonable amount of effort by an employee familiar with the files.

(3)The requester has failed to comply with procedural requirements, including failure to comply with a written agreement to pay any required fee incurred in processing previous requests.

(b)*Requests from private parties.*

(1)The provisions of the FOIA are reserved for members of the public as opposed to U.S. Federal agencies seeking official information. Requests may be submitted in person, by mail, facsimile, or electronically. Commercial delivery is acceptable; however, due to security concerns, the DoD Components may refuse to accept commercial delivery of requests.

(2)Individuals seeking DoD information should address their FOIA requests to one of the FOIA Requester Service Center addresses listed in Appendix B to this part. If a requester is not sure where to send a FOIA for DoD information, the request can be sent to the OSD/Joint Staff FOIA Requester Service Center.

(3)The subject of a FOIA request may involve documents located at multiple Federal Government agencies. When this is the case, the DoD Components should try to determine whether the requester sent the request to the other relevant agencies. The requester should be contacted by the Component if the request does not mention any other agencies to which the request was sent.

(4)When personally-identifying information in a record is requested by the subject of the record or the subject's representative and the information is contained within a Privacy Act system of records, it will be processed under both the FOIA and the Privacy Act. The Components shall comply with the provisions of DoD 5400.11-R to confirm the identity of the requester.

(c)*Requests from government officials, Congress, and foreign governments.*

(1)State or local Government officials, foreign officials requesting on behalf of their government, foreign individuals, or foreign organizations requesting DoD Component records under the FOIA shall be considered the same as any other FOIA requester. The provisions of the FOIA do not apply to requests from a non-U.S. government entity or representative for records of the DoD Component that is an element of the intelligence community as defined in 50 U.S.C. 401a(4).

(2)Requests from members of Congress who are not seeking records on behalf of a Congressional committee or subcommittee, or on behalf of the House of Representatives or the Senate sitting as a whole, shall be processed as FOIA requests.

(3)Requests submitted by members of Congress for Congressional business that are received by the DoD Component's FOIA office shall be referred to the appropriate office that handles legislative inquiries for processing under DoD Directive 5400.4 or supplementing component directives. Such requests will not be processed under the FOIA.

(4)Requests from officials of foreign governments that do not invoke the FOIA shall be referred to the appropriate office authorized to disclose official DoD information to foreign governments, and the requester shall be so notified.

(5)Because it is a Component of the Department of Defense, requests from *Stars and Stripes* should not be processed under the FOIA. A Federal Agency cannot make a FOIA request.

(d)*Privileged release outside of the FOIA to U.S. government officials.*

(1)Records exempt from release to the public under the FOIA may be disclosed in accordance with DoD Component regulations to agencies of the Federal Government, whether legislative, executive, or administrative, as follows:

(i)To other Federal agencies, both executive and administrative, as determined by the Head of the DoD Component or designee.

(ii)In response to a State or Federal court order. The DoD Components shall release this information along with a description of the restrictions on its release to the public.

(2)The DoD Components shall inform officials receiving records under the provisions of this paragraph that those records are exempt from public release under the FOIA. The DoD Components also shall advise officials of any special handling instructions. Classified information is subject to the provisions of DoD 5200.1-R. Information contained in a Privacy Act system of records is subject to DoD 5400.11-R. § 286.18 Processing procedures.

(a)*Receipt and control.* When a request for records is received, DoD FOIA Offices shall open a file in a formal control system designed to ensure accountability and compliance with the FOIA. The control system should include the data elements needed to compile the statistics required in the annual FOIA report or other reports required by another authority. Each request shall be assigned a unique tracking number.

(b)*Multi-track processing.*

(1)When a FOIA Office has a significant number of pending requests, the requests shall be processed in a multi-track system.

(2)DoD FOIA Offices shall establish a minimum of three processing tracks, all based on a first-in/first-out concept and with requests ranked by date of receipt. One track shall be for simple requests, one for complex requests, and one for expedited requests. Each FOIA Office shall determine whether a request is simple or complex. Requesters whose requests are categorized as “complex” shall be given an opportunity to limit in writing the scope of the request in order to qualify for the simple track.

(c)*Expedited processing.* Two circumstances merit expedited processing according to the procedures that follow. These same procedures apply to requests for expedited processing of administrative appeals.

(1)*Compelling need.* Expedited processing shall be granted to a requester upon a specific request for such and demonstration of a compelling need for the information. The DoD Component shall respond to the requester with the determination whether to grant or deny expedited processing within 10 calendar days after receipt of the request. Once the DoD Component decides to grant expedited processing, the request shall be processed as soon as practicable. Actions by the DoD Components to initially deny or affirm the initial denial on appeal of a request for expedited processing, and failure to respond in a timely manner shall be subject to judicial review if the requester seeks relief in United States District Court.

(i)“Compelling need” is the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual, or that the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity.

(A)“An individual primarily engaged in disseminating information” is a person whose primary activity involves publishing or otherwise disseminating information to the public. To meet this criterion, an organization or person must establish that information dissemination is their principal professional activity or occupation, and not an incidental or secondary activity.

(B)“Urgently needed” means the information has a particular value that will be lost if not disseminated quickly, such as a breaking story of general public interest. Information of historical interest only, or information sought for litigation or commercial activities, would not qualify as “urgently needed,” nor would a news media publication or broadcast deadline unrelated to the news-breaking nature of the information. The burden of demonstrating that the requested information has a particular value that will be lost if not disseminated quickly is on the requester.

(ii)A “demonstration of compelling need” means a statement certified to be true and correct to the best of the requester's knowledge. This statement must accompany the request in order to be considered and responded to within the 10 calendar days required for decisions on expedited access.

(2)*Imminent loss of due process rights.* Expedited processing shall also be granted to a requester if loss of substantial due process rights is imminent. A demonstration of imminent loss of substantial due process rights by the requester shall include a description of the due process rights that would be lost and a statement certified to be true and correct to the best of the requester's knowledge. This statement must accompany the request in order to be considered and responded to within the 10 calendar days required for decisions on expedited access. If the DoD Component decides to expedite the request for this reason, the request may be processed in the expedited track behind those requests qualifying for compelling need.

(d)*Consultation and referrals.* The DoD Component shall take appropriate action as described in § 286.4(h)(2) when the record is not under its release authority because it requires consultation with another DoD Component or non-DoD agency, because the record was not originated by the Component, or because the record is not in the Component's system of records but is likely to be held by another DoD Component or non-DoD agency. The following actions are necessary when the record was originated by a non-Government source:

(1)When a request is received for a record that arguably contains information exempt from release under Exemption 4, the provisions of E.O. 12600 apply.

(i)When a FOIA request is received for records that may contain confidential commercial information (e.g., government contracts), the submitter shall be notified promptly of that request and afforded reasonable time (e.g., 20 calendar days) to present any objections concerning release. This practice of giving submitter notice is required by E.O. 12600 for those FOIA requests for data not deemed clearly exempt from disclosure under Exemption 4. The submitter notice letter should include, as an attachment, a copy of the requested information. Any objections to release provided by the submitter shall be evaluated. The final decision to disclose information claimed to be exempt under Exemption 4 shall be made by an official equivalent in rank to the official who would make the decision to withhold that information under the FOIA. When a substantial issue has been raised or when the objections submitted lack specificity, the DoD Component may seek additional information from the submitter and afford the submitter a reasonable opportunity to present arguments on the legal and substantive issues involved prior to making an agency determination. If the Component and submitter cannot come to agreement as to what information is exempt from release under Exemption 4, the Component shall provide the submitter a date on which the information in question will be released to the FOIA requester. This date should provide the submitter sufficient time to block the release of the information by obtaining an injunction in Federal Court (which is known as a reverse FOIA lawsuit), if the submitter so chooses. If no response is forthcoming the component shall release the information on the date provided to the submitted.

(ii)The requester shall be notified when:

(A)The Component notifies the submitter of the FOIA request and asks for comments.

(B)The Component advises the submitter that the requested information will be released over the submitter's objections.

(iii)The submitter shall be notified immediately whenever the requester brings suit seeking to compel disclosure of the submitter's information.

(iv)If the submitted information is a proposal provided in response to a solicitation for a competitive proposal, and the proposal is in DoD possession and control and meets the requirements of 10 U.S.C. 2305(g), the proposal shall not be disclosed, and no submitter notification and subsequent analysis is required. The proposal shall be withheld from public disclosure pursuant to Reference

(m)and Exemption 3. This statute does not apply to bids, unsolicited proposals, or any proposal that is set forth or incorporated by reference in a contract between the DoD Component and the offeror that submitted the proposal. In such situations, normal submitter notice and analysis shall be conducted in accordance with § 286.18

(l)except sealed bids that are opened and read to the public. The term “proposal” means information contained in or originating from any proposal, including a technical, management, or cost proposal submitted by an offeror in response to solicitation for a competitive proposal. The term “proposal” does not include an offeror's name, total price, or unit prices when set forth in a record other than the proposal itself.

(v)If the record or information was submitted on a strictly voluntary basis, absent any exercised authority that prescribes criteria for submission, and it is absolutely clear that the record or information would customarily not be released to the public the submitter need not be notified. The Component shall withhold this information under Exemption 4.

(2)The coordination provisions of this paragraph apply to the release of responsive information received from multi-national organizations, such as the North Atlantic Treaty Organization (NATO), United Nations Commands, the North American Aerospace Defense Command (NORAD), the Inter-American Defense Board, foreign governments, or international organizations (e.g., the International Committee of the Red Cross).

(i)Coordination with foreign governments under the provisions of this paragraph may be made through the Department of State, the specific foreign embassy, or any other coordination channel the Component has established. OFOI has established a coordination channel with the United Kingdom Ministry of Defence (MOD). If the DoD Component has MOD-originated information within its files, it shall be forwarded to OFOI, which shall coordinate with the MOD for release. The MOD release recommendation will be forwarded by OFOI back to the Component for direct response to the requester. Coordination with most international organizations may be made directly with those organizations. However, for NORAD coordination the Components shall refer the documents to the FOIA Office at the United States Northern Command, which will consult with NORAD.

(ii)If an international organization or foreign government asks the Department of Defense to withhold classified information originated by the multi-national organization or foreign government, it will be withheld under the provisions of Exemption 1.

(iii)If the DoD Component is asked to withhold sensitive unclassified information originated by the multi-national organization or foreign government, then the Component will withhold it under the provisions of Exemption 3, and shall reference the relevant statute as 10 U.S.C. 130c. To qualify for withholding under this statute, the Component IDA must make the three following determinations concerning the requested foreign information:

(A)The information was provided by or produced in cooperation with a foreign government or international organization.

(B)The information is withheld from public disclosure by the foreign government or international organization (the foreign government or international organization should make this representation in writing).

(C)Any of the following three conditions are met: ( *1* ) The foreign government or international organization requests in writing that the information be withheld. ( *2* ) The foreign government or international organization provides the information to the U.S. Government on the condition that it not released to the public. ( *3* ) The requested information is specified in agency regulations as being information the release of which would have an adverse effect on the ability of the Government to obtain the same or similar information in the future.

(D)To qualify for withholding, the information must meet the following limitations: ( *1* ) If the information came into the possession or under the control of the U.S. Government prior to October 30, 2000, and more than 25 years prior to receipt of the FOIA request, the DoD Component shall notify the foreign government or international organization of the request for disclosure. The information then qualifies for withholding only if the foreign government or international organization requests in writing that the information not be disclosed for a specific period of time. This date can be extended with a later request by the foreign government or international organization. ( *2* ) If the information came into the possession or under the control of the U.S. Government after October 30, 2000, the information cannot be withheld after the release date specified by the foreign government or international organization. In the case where one or more foreign governments or international organizations provided the information, the latest date specified by any of them will be used. If no release date was specified, and the information came into the possession of the DoD Component more than 10 years prior to receipt of the FOIA request, the procedures set forth in § 286.18(d)(1)(i) apply. § 286.19 Initial determinations.

(a)*IDA.*

(1)The determination whether to withhold information responsive to a FOIA request shall be made by any suitable official designated in writing as an IDA by the DoD Component. In designating IDAs, the DoD Component shall balance the goals of centralization of authority to promote uniform decisions, and decentralization to facilitate responding to each request within the time limitations of the FOIA. The IDA shall review all withheld information to determine whether it meets the criteria for withholding under one or more of the FOIA exemptions. This determination may be made upon the recommendation of a review official.

(2)IDAs and review officials shall not use the existence of classification markings, distribution limiting statements, such as “For Official Use Only” markings, as justification to withhold information. Information so marked must be reviewed after the receipt of a FOIA request to determine if the markings still apply.

(3)To deny, in whole or in part, a requested record that is in the possession and control of the DoD Component, the IDA must determine that one or more of the FOIA exemptions justify withholding all or part of the record.

(4)The IDA should consult with public affairs officers

(PAOs)to become familiar with subject matter considered to be newsworthy at the local or national level, and advise PAOs of all requests from news media representatives. In addition, the IDA should inform PAOs in advance when they intend to withhold or partially withhold a record if it appears the withholding action may be a media issue.

(b)*Reasons for not releasing a record.* The following are reasons for not complying with a request for a record pursuant to 5 U.S.C. 552(a)(3). These reasons are data items that should be maintained in the control system database for ease of retrieval and reporting in the Annual FOIA Report.

(1)*No records.* A reasonable search of files failed to identify responsive records.

(2)*Referrals.* The request is transferred to another DoD Component or Federal agency.

(3)*Request withdrawn.* The request is withdrawn by the requester.

(4)*Fee-related reason.* The requester is unwilling to pay fees associated with a request; the requester is past due in the payment of fees from a previous FOIA request; or the requester disagrees with the fee estimate.

(5)*Records not reasonably described.* A record has not been described with sufficient particularity to enable the DoD Component to locate it by conducting a reasonable search.

(6)*Not a proper FOIA request for some other reason.* The requester has failed to comply with procedural requirements, other than fee-related requirements, imposed by this part or by DoD Component supplementing regulations.

(7)*Not an agency record.* The information requested is not a record within the meaning of the FOIA and this part.

(8)*Duplicate request.* The request is a duplicate request (e.g., a requester asks for the same information more than once). This includes identical requests received through different means (e.g., electronic mail, facsimile, mail, courier) at the same or different times.

(9)*Other* (Specify). Any other reason a requester does not comply with published rules other than those outlined in paragraph

(b)of this section.

(10)*Partial or total denial.* The record is denied in whole or in part in accordance with procedures set forth in the FOIA.

(c)*Reasonably segregable portions.* Although portions of some records may be denied, the remaining reasonably segregable portions must be released to the requester. Unless disclosing the extent of the deletion would harm an interest protected by an exemption, the amount of deleted information shall be indicated on the released portion of paper records by use of brackets or darkened areas. In no case shall the deleted areas be left “white” without the use of brackets to show the bounds of deleted information. In the case of electronic deletion or deletion in audiovisual or microfiche records, if technically feasible, the amount of redacted information shall be indicated at the place in the record such deletion was made, unless including the indication would harm an interest protected by the exemption under which the deletion was made. This may be done by use of brackets, shaded areas, or some other identifiable technique that will clearly show the limits of the deleted information.

(d)*Response to requester.*

(1)When a decision is made to release a record, a copy should be made available promptly to the requester.

(2)When a request for a record is denied in whole or in part, the official designated to respond shall provide the requester a written explanation of the substantive basis for denial including specific citation of the statutory exemption applied under provisions of this part (e.g., 5 U.S.C. 552 (b)(1)) and advise the requester of their appeal rights, including the address to which any appeal should be mailed. The basis for the determination shall be in sufficient detail to permit the requester to make a decision concerning an appeal. If the IDA does not sign the response letter, the name and duty title of the IDA will be specified in the letter. The official also shall advise the requester that any appeal to the adverse determination must be postmarked no later than 60 days after the date of the initial denial letter.

(3)The DoD Component shall make a reasonable effort to estimate the volume of the records denied and provide this estimate to the requester, unless providing such an estimate would harm an interest protected by an exemption of the FOIA. This estimate should be in number of pages or in some other reasonable form of estimation.

(4)When a denial is based on a statute qualifying as a FOIA Exemption 3 statute, the DoD Components shall state the particular statute relied upon to deny the information.

(5)When a requester is assessed fees for processing a request, the requester's fee category shall be specified in the final response letter. The DoD Components also shall provide the requester with a complete cost breakdown (e.g., 15 pages of office reproduction at $.15 per page; three hours of professional level search at $53.00 per hour, etc.) in the response letter.

(e)*File of initial denials.* Copies of all initial denials shall be maintained by each DoD Component in a form suitable for rapid retrieval, periodic statistical compilation, and management evaluation. Records denied for any of the reasons contained in § 286.14 (for which no appeal was filed) shall be maintained for a period of 6 years to meet the statute of limitations requirement.

(f)*Special mail services.* The DoD Components are authorized to use registered mail, certified mail, certificates of mailing, and return receipts. However, their use should be limited to instances where it appears advisable to establish proof of dispatch or receipt of FOIA correspondence. The requester shall be notified that they are responsible for the full costs of special services. A commercial delivery service may be used provided the requester asks for such service to receive the requested information in a timelier manner and the requester pays directly for the service.

(g)*Receipt account.* The Treasurer of the United States has established an account for FOIA receipts. This account, receipt account 3210, shall be used for depositing all FOIA receipts, except receipts for “Working Capital” and non appropriated funded activities. Components are reminded that the account number must be preceded by the appropriate disbursing office two-digit prefix. “Working Capital” and non-appropriated funded activity FOIA receipts shall be deposited to the applicable fund. All money orders or checks remitting FOIA fees should be made payable to the U.S. Treasurer. § 286.20 Appeals

(a)*General.* If the DoD Component IDA denies a record for any of the reasons contained in § 286.14 the DoD Component shall advise the requester that the decision may be appealed in writing to a designated appellate authority. The Component will further advise the requester that the appeal should be accompanied by a copy of the denial letter. In addition to appeal rights associated with the denial of information, the following are adverse determinations and are subject to appeal:

(1)The disapproval of a fee category claim by a requester, the disapproval of a request for waiver or reduction of fees, and a dispute regarding fee estimates.

(2)A determination not to grant expedited processing.

(3)Not providing a response determination to a FOIA request within the statutory time limits.

(4)Any determination found to be adverse in nature by the requester.

(b)*FOIA/Privacy Act appeals* . When denials have been made under the provisions of the Privacy Act and the FOIA and the denied information is contained in a Privacy Act system of records, appeals shall be processed under both the Privacy Act and the FOIA. If the denied information is not maintained in a Privacy Act system of records, the appeal shall be processed under the FOIA.

(c)*Time of receipt* . A FOIA appeal has been received by the DoD Component when it reaches the office of an appellate authority having jurisdiction. Misdirected appeals should be referred expeditiously to the proper appellate authority.

(d)*Time limits* .

(1)If the requester submits an appeal after the conclusion of the 60-day time established by the date of the initial denial letter, the appeal may be considered closed. However, the Components are encouraged to make exceptions on a case by case basis. In cases where the requester is provided several incremental determinations for a single request, the time period for the appeal shall not begin until the date of the final response. Denied records shall be retained for a period of 6 years after final adjudication to meet the statute of limitations requirement.

(2)Final determinations on appeals normally shall be made within 20 working days after receipt. When the DoD Component has a significant number of appeals preventing a response determination within 20 working days, the appeals shall be processed in a multi-track system, based at a minimum, on the three processing tracks established for initial requests according to § 286.18(b). The provisions of § 286.18(b) also apply to appeals of initial determinations, to include establishing additional processing tracks as needed.

(e)*Delay in responding to an appeal* . If a determination cannot be made and the requester notified within 20 working days, the appellate authority or the appellate authority's representative shall acknowledge to the requester, in writing, the date of receipt of the appeal, the circumstances surrounding the delay, and the anticipated date for substantive response. Requesters shall be advised that, if the delay exceeds the statutory extension provision or is for reasons other than the unusual circumstances identified in § 286.4(b)(2)(ii)(C), they may consider their administrative remedies exhausted. They may, however, without prejudicing their right of judicial remedy, await a substantive response.

(f)*Response to the requester* .

(1)When an appellate authority makes a final determination to release all or a portion of records withheld by an IDA, a written response and a copy of the records released should be forwarded promptly to the requester. If the requester owes outstanding fees from the initial request, and these fees were not appealed, the final appellate response will not be made until the fees are paid.

(2)Final denial of an appeal must be made in writing and signed by the appellate authority. The response shall include the following:

(i)The basis for the denial, to include an explanation of the applicable statutory exemption or exemptions invoked under provisions of the FOIA, and of other appeal matters set forth in § 286.20(a).

(ii)A determination that the record meets the cited criteria and rationale of the governing Executive Order if the final refusal is based in whole or in part on Exemption 1.

(iii)A statement that the information being denied does not contain meaningful portions that are reasonably segregable in the case of appeals for total denial of records.

(iv)The requester's right to judicial review.

(g)*Consultation* .

(1)Final denial of access involving issues not previously resolved or that the DoD Component knows to be inconsistent with rulings of other DoD Components ordinarily should not be made before consultation with the DoD Office of the General Counsel.

(2)Tentative decisions to deny records that raise new or significant legal issues of potential significance to other Government agencies shall be discussed with the DoD Office of the General Counsel. § 286.21 Judicial actions.

(a)*General* .

(1)This paragraph states current legal and procedural rules for the convenience of the reader. The statements of rules do not create rights or remedies not otherwise available, nor do they bind the Department of Defense to particular judicial interpretations or procedures.

(2)A requester may seek an order from a U.S. District Court to compel release of a record after administrative remedies have been exhausted; i.e., when the requester has filed an administrative appeal from the denied access to a record by the Head of the DoD Component or an appellate designee, or when the DoD Component has failed to respond within the time limits prescribed by the FOIA and in this part.

(b)*Venue* . The requester may bring suit in the U.S. District Court in the district in which the requester resides, the district where the requester's place of business is located, the district in which the record is located, or the District of Columbia.

(c)*Burden of proof* . The burden of proof is on the DoD Component to justify its refusal to provide a record. The court shall evaluate the case *de novo*

(anew)and may elect to examine any requested record in camera (in private) to determine whether the denial was justified.

(d)*Actions by the court* .

(1)The U.S. District Court for the District of Columbia has ruled that, when the DoD Component has failed to make a determination within the statutory time limits but can demonstrate due diligence in exceptional circumstances, to include negotiating with the requester to modify the scope of their request, the court may retain jurisdiction and allow the Component additional time to complete its review of the records (Department of Justice FOIA Update Web site). The Component must request that the Court retain jurisdiction by seeking an “Open America” stay (Department of Justice FOIA Update Web site).

(2)If the Court determines that the plaintiff substantially prevails, it may require the United States to pay reasonable attorney fees and other litigation costs.

(3)When the Court orders the release of denied records, it may also issue a written finding that the circumstances surrounding the withholding raise questions as to whether DoD Component personnel acted arbitrarily and capriciously. In these cases, the special counsel of the Merit System Protection Board shall conduct an investigation to determine whether or not disciplinary action is warranted. The DoD Component is obligated to take the action recommended by the special counsel.

(4)The Court may punish the responsible official for contempt when the DoD Component fails to comply with the court order to produce records that it determines have been withheld improperly, or to otherwise comply with a court order.

(e)*Non-United States Government source information (business information)* . A requester may bring suit in a U.S. District Court to compel the release of records obtained from a submitter or records based on information obtained from a submitter. The submitter shall be notified promptly of the court action pursuant to E.O. 12600. When the submitter advises that it is seeking court action to prevent release, the DoD Component shall defer answering or otherwise pleading to the complainant as long as permitted by the court, or until a decision is rendered in the court action of the source, whichever is sooner.

(f)*FOIA litigation* . Personnel responsible for processing FOIA requests at the DoD Component level shall be aware of litigation under the FOIA. Whenever a complaint is filed in a U.S. District Court under the FOIA, the DoD Component named in the complaint shall forward a copy of the complaint to DFOIPO with an information copy to the DoD Office of the General Counsel, ATTN: Office of Legal Counsel. Subpart E—Fee Schedule § 286.24 General provisions.

(a)*Application* .

(1)The fees described in this subpart apply to requests submitted pursuant to 5 U.S.C. 551, 552, and 552(a) and conform to the OMB Uniform Freedom of Information Act Fee Schedule and Guidelines S. They reflect direct costs for search, review (in the case of commercial requesters), and duplication of documents.

(2)The fees are neither intended to imply they must be charged in connection with providing information to the public pursuant to the FOIA request nor are they meant to substitute for any other charges established by the Department of Defense, such as DoD 7000.14-R, to recoup direct costs of authorized services provided by DoD Components that are not FOIA related.

(3)Nothing in this subpart shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records, such as the GPO or the National Technical Information Service. The Components should ensure documents responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs and inform requesters of the steps necessary to obtain records from those sources.

(b)*Fee restrictions* .

(1)No fees may be charged by any DoD Component if the total assessable fees are less than or equal $25.00. For requesters in the educational institution, noncommercial scientific institution, or news media categories, the Components shall provide all search time and the first 100 pages of duplication without charge. For requesters in the “all other” category, the Components shall provide the first 2 hours of search time, and the first 100 pages of duplication without charge. The Components shall provide all review time without charge except for requesters in the commercial category. Time expended shall be computed to the nearest 15 minutes.

(2)Requesters receiving the first 2 hours of search and the first 100 pages of duplication without charge are entitled to such only once per request. Therefore, if the Component, after completing its portion of a request, finds it necessary to refer the request to a subordinate office, another DoD Component, or another Federal agency for action on their portion of the request, the referring Component shall inform the recipient of the referral of the expended amount of search time and duplication cost to date.

(3)For the purposes of these restrictions, the word “pages” refers to paper copies of a standard size, which will normally be “8 1/2 x 11” or “11 x 14”. Thus, requesters would not be entitled to 100 microfiche or 100 computer disks, for example.

(4)In the case of computer searches, the first 2 free hours will be determined against the salary scale of the individual operating the computer for the purposes of the search. As an example, when the direct costs of the computer central processing unit, input-output devices, and memory capacity equal $40.00 (2 hours of equivalent search at the clerical level), amounts of computer costs in excess of that amount are chargeable as computer search time. In the event the direct operating cost of the hardware configuration cannot be determined, computer search shall be based on the salary scale of the operator executing the computer search. See § 286.25(b)(1) for further details regarding fees for computer searches.

(c)*Fee waivers* .

(1)When assessable costs for a FOIA request total $25.00 or less, fees shall be waived automatically for all requesters, regardless of category.

(2)Documents shall be furnished without charge, or at a reduced charge, when the Component determines that waiver or reduction of the fees is in the public interest because furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the Department of Defense and is not primarily in the commercial interest of the requester. Decisions to waive or reduce fees that exceed the automatic waiver threshold shall be made on a case-by-case basis and after a search for responsive records is completed, consistent with the following factors:

(i)Disclosure of the information “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government.” The factors identified must be met to some degree to warrant waiving or reducing assessable fees in the “public interest.”

(A)*The subject of the request* . The Components should analyze whether the subject matter of the request involves issues will significantly contribute to the public understanding of the operations or activities of the Department of Defense. Requests for records in the possession of the Department of Defense that were originated by non-government organizations and are sought for their intrinsic content, rather than informative value, will likely not contribute to public understanding of the operations or activities of the Department of Defense. An example of such records might be press clippings, magazine articles, or records forwarding a particular opinion or concern from a member of the public regarding a DoD activity. Similarly, disclosures of records of considerable age may or may not bear directly on the current activities of the Department of Defense; however, the age of a particular record shall not be the sole criterion for denying relative significance under this factor. It is possible to envisage an informative issue concerning the current DoD activities, based on historical documentation. Requests of this nature must be closely reviewed consistent with the requester's stated purpose for desiring the records and the potential for public understanding of DoD operations and activities.

(B)*The informative value of the information to be disclosed* . This factor requires a close analysis of the substantive contents of a record, or portion of the record, to determine whether disclosure is meaningful, and shall inform the public on the operations or activities of the Department of Defense. While the subject of a request may contain information that concerns the Department of Defense, it may not always hold great potential for contributing to a meaningful understanding of these operations or activities. An example of such would be a previously released record that has been heavily redacted, the balance of which may contain only random words, fragmented sentences, or paragraph headings. A determination as to whether a record in this situation will contribute to the public understanding of DoD operations or activities must be approached with caution, and carefully weighed against the arguments offered by the requester. Another example is information already known to be in the public domain. Disclosure of duplicative or nearly identical information already existing in the public domain may not add meaningful new information concerning the operations and activities of the Department of Defense.

(C)*The contribution to an understanding of the subject by the general public likely to result from disclosure* . The key element in determining the applicability of this factor is whether disclosure will inform, or have the potential to inform the public, rather than simply the individual requester or small segment of interested persons. The identity of the requester is essential in this situation in order to determine whether such requester has the capability and intention to disseminate the information to the public. Mere assertions of plans to author a book, researching a particular subject, doing doctoral dissertation work, or indigence are insufficient without demonstrating the capacity to further disclose the information in a manner that will be informative to the general public. Requesters should be asked to describe their qualifications, the nature of their research, the purpose of the requested information, and their intended means of dissemination to the public.

(D)*The significance of the contribution to public understanding* . In applying this factor, the Components must differentiate the relative significance or impact of the disclosure against the current level of public knowledge, or understanding which exists before the disclosure. In other words, will disclosure on a current subject of wide public interest be unique in contributing previously unknown facts, thereby enhancing public knowledge, or will it basically duplicate what is already known by the general public? A decision regarding significance requires objective judgment, rather than subjective determination, and must be applied carefully to determine whether disclosure will likely lead to a significant public understanding of the issue. The Components shall not make value judgments as to whether the information is important enough to be made public.

(ii)Disclosure of the information “is not primarily in the commercial interest of the requester.” Determining “commercial interest” requires consideration of the following issues:

(A)*The existence and magnitude of a commercial interest* . If the request is determined to be of a commercial interest, the Components should address the magnitude of that interest to determine if the requester's commercial interest is primary, as opposed to any secondary personal or non-commercial interest. In addition to profit-making organizations, individual persons or other organizations may have a commercial interest in obtaining certain records. Where it is difficult to determine whether the requester is of a commercial nature, the Components may draw inference from the requester's identity and circumstances of the request. The Components are reminded that in order to apply the commercial standards of the FOIA, the requester's commercial benefit must clearly override any personal or non-profit interest.

(B)*The primary interest in disclosure* . Once a requester's commercial interest has been determined, the Components should then determine if the disclosure would be primarily in that interest. This requires a balancing test between the commercial interest of the request against any public benefit to be derived as a result of that disclosure. Where the public interest is served above and beyond that of the requester's commercial interest, a waiver or reduction of fees would be appropriate. Conversely, even if a significant public interest exists, and the relative commercial interest of the requester is determined to be greater than the public interest, then a waiver or reduction of fees would be inappropriate. As examples, news media organizations have a commercial interest as business organizations; however, their inherent role of disseminating news to the general public can ordinarily be presumed to be of a primary interest. Therefore, any commercial interest becomes secondary to the primary interest in serving the public. Similarly, scholars writing books or engaged in other forms of academic research may recognize a commercial benefit, either directly, or indirectly (through the institution they represent); however, normally such pursuits are primarily undertaken for educational purposes, and the application of a fee charge would be inappropriate. Conversely, data brokers or others who merely compile Government information for marketing can normally be presumed to have an interest primarily of a commercial nature.

(3)Components are reminded that the factors and examples used in this paragraph are not all inclusive. Each fee decision must be considered on a case-by-case basis and upon the merits of the information provided in each request. When the element of doubt as to charging or waiving the fee cannot be clearly resolved, Components should rule in favor of the requester.

(4)In addition, the following additional circumstances describe situations where waivers or reductions of fees are most likely to be warranted:

(i)A record is voluntarily created to prevent an otherwise burdensome effort to provide voluminous amounts of available records, including additional information not requested.

(ii)A previous denial of records is reversed in total, or in part, and the assessable costs are not substantial (e.g. $25.00-$50.00).

(d)*Fee assessment* .

(1)Fees may not be used to discourage requesters. Assessable FOIA fees are limited to standard charges for direct search, review (in the case of commercial requesters), and duplication.

(2)Fees are assessed based on the category determined to be appropriate for the requester's status and the FOIA request should contain a willingness to pay fees appropriate to that category. The categories are identified below:

(i)*Commercial* . Requesters should indicate a willingness to pay all search, review, and duplication costs when the records are requested for commercial use.

(A)The term “commercial use” request refers to a request from, or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interest of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, Components must determine the use to which a requester will put the documents requested. Moreover, where a Component has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, Components should seek additional clarification from the requester before assigning the request to a specific category.

(B)When the Components receive a request for documents for commercial use, they should assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Accordingly, commercial requesters are not entitled to 2 hours of free search time and 100 free pages of reproduction.

(C)Commercial requesters are not normally entitled to a waiver or reduction of fees based upon an assertion that disclosure would be in the public interest. However, because use is the exclusive determining criterion, it is possible to envision a commercial enterprise making a request that is not for commercial use. It is also possible that a non-profit organization could make a request that is for commercial use. Such situations must be addressed on a case-by-case basis.

(ii)*Educational, non-commercial scientific institution, or news media* . Requesters should indicate a willingness to pay duplication charges in excess of 100 pages if more than 100 pages of records are desired.

(A)*Educational institution* . Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages) when the request is made by an educational institution whose purpose is scholarly research. The term “educational institution” refers to a pre-school, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research. Fees shall be waived or reduced in the public interest if the fee waiver criteria are met.

(B)*Non-commercial scientific institution* . Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages) when the request is made by a non-commercial scientific institution whose purpose is scientific research. The term “non-commercial scientific institution” refers to an institution that is not operated on a “commercial” basis as defined in § 286.24(d)(2)(i)(A), and is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. Fees shall be waived or reduced in the public interest if the fee waiver criteria are met.

(C)*Representatives of the news media* . Fees shall be limited to only reasonable standard charges for document duplication (excluding charges for the first 100 pages). Fees shall be waived or reduced if the fee waiver criteria are met. ( *1* ) The term “representative of the news media” refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not meant to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services and the Internet), such alternative media might be included in this category. ( *2* ) To be eligible for inclusion in this category, a requester must meet the criteria in the preceding paragraph, and his or her request must not be made for commercial use. In the case of “freelance” journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication though that organization, even though not actually employed by it. A publication contract would be the clearest proof, but the Components may also look to the past publication record of a requester in making this determination. A request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. ( *3* ) “Representative of the news media” does not include private libraries, private repositories of Government records, information vendors, data brokers or similar marketers of information whether to industries and businesses, or other entities.

(D)*All others* . Requesters who do not fit into any of the categories described above should indicate a willingness to pay assessable search and duplication costs if more than 2 hours of search effort or 100 pages of records are desired. Fees shall be waived or reduced if the fee waiver criteria are met.

(E)The fee provisions of E.O. 12600 apply when requesters ask for information about themselves under the Privacy Act of 1974. In these cases, the only assessable processing fees are for duplication. Components are reminded in these cases requesters may also be eligible for a waiver or reduction of fees if the fee waiver criteria are met.

(3)To be as responsive as possible to FOIA requests while minimizing unwarranted costs to the taxpayer, the Components shall adhere to the following procedures:

(i)Analyze each request to determine the category of the requester. If the Component determination regarding the category of the requester is different than that claimed by the requester, the Component shall:

(A)Notify the requester to provide additional justification to warrant the category claimed, and that a search for responsive records will not be initiated until agreement has been attained relative to the category of the requester. Absent further category justification from the requester, and within a reasonable period of time (e.g., 30 calendar days), the Component shall render a final category determination and notify the requester of such determination, to include normal administrative appeal rights of the determination.

(B)Advise the requester, notwithstanding any appeal, a search for responsive records will not be initiated until the requester indicates a willingness to pay assessable costs appropriate for the category determined by the Component.

(ii)If these conditions are not met the request need not be processed and the requester shall be so informed.

(iii)The Components must be prepared to provide an estimate of assessable fees if desired by the requester. While it is recognized that search situations will vary among Components, and that an estimate is often difficult to obtain prior to an actual search, requesters who desire estimates are entitled to such before committing to a willingness to pay. If Components' actual costs exceed the amount of the estimate or the amount agreed to by the requester, the amount in excess of the estimate or the requester's agreed amount shall not be charged without the requester's agreement. Even though Components do not need to advise requesters of their appeal rights when provided fee estimates, such estimates may be appealed and litigated by the requester.

(iv)No DoD Component may require advance payment of any fee; i.e., payment before work starts or continued on a request, unless either of the following conditions are met:

(A)The requester has a history of failing to pay fees in a timely fashion (within 30 days of the billing date) on a previous request

(B)The Component determines that the fee will exceed $250.00.

(iv)Where the Component estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, the Component shall notify the requester of the likely cost and obtain satisfactory assurance of full payment. The Component may ask for an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment or a history of late payments. If the Component learns that a requester has an outstanding overdue debt with any other DoD Component or other Federal agency, the Component may administratively close all of the requester's requests after giving notice to the requester.

(v)Where a requester has previously failed to pay a fee charged in a timely fashion to any Federal agency, the Component may require the requester to pay the full amount owed, plus any applicable interest, before the Component begins to process a new or pending request from the requester. Interest will be at the rate prescribed in 32 U.S.C. 3717, and confirmed with respective Finance and Accounting Offices.

(vi)When the Components dispute a requester's fee category assertion, the administrative time limits of the FOIA will begin only after the Component has received a willingness to pay fees and satisfaction as to category determination, or fee payments (if appropriate).

(vii)The Components may charge for time spent searching for records, even if that search fails to locate records responsive to the request. The Components may also charge search and review (in the case of commercial requesters) time if records located are determined to be exempt from disclosure.

(viii)If the Component estimates processing charges are likely to exceed what the requester is willing to pay, it shall notify the requester of the estimate of fees. Such a notice shall offer the requester the opportunity to confer with Component personnel with the object of reformulating the request to meet his or her needs at a lower cost.

(e)*Aggregating requests.* Except requests that are for a commercial use, the Component may not charge for the first 2 hours of search time or for the first 100 pages of reproduction. However, a requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When a Component reasonably believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of avoiding the assessment of fees, the Component may aggregate any such requests and charge accordingly. One element to be considered in determining whether this belief would be reasonable is the time period in which the requests have occurred. For example, it would be reasonable to presume that multiple requests of this type made within a 30 day period had been made to avoid fees. For requests made over a longer period however, such a presumption becomes harder to sustain and Components should have a solid basis for determining that aggregation is warranted in such cases. Components are cautioned that before aggregating requests from more than one requester, they must have a concrete basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees. In no case may Components aggregate multiple requests on unrelated subjects from one requester.

(f)*Effect of the “Debt Collection Act of 1982” (Pub. L. 97-365).* The Debt Collection Act of 1982 provides for a minimum annual rate of interest to be charged on overdue debts owed the Federal Government. Components may levy this interest penalty for any fees that remain outstanding 30 calendar days from the date of billing (the first demand notice) to the requester of the amount owed. The interest rate shall be as prescribed in DoD 7000.14-R, Volume 11A. Components should verify the current interest rate with respective Finance and Accounting Offices. After one demand letter has been sent, and 30 calendar days have lapsed with no payment, Components may submit the debt to respective Finance and Accounting Offices for collection pursuant to the Debt Collection Act of 1982.

(g)*Computation of fees.* The fee schedule in this subchapter shall be used to compute the assessable fees based upon the time actually spent on the search, review (in the case of commercial requesters) and duplication costs associated with processing a given FOIA request. Neither time-based nor dollar-based minimum charges for search, review and duplication are authorized. The appropriate fee category of the requester shall be determined before computing fees. All time computations will be to the nearest 15 minutes or quarter hour.

(h)*Refunds.* In the event a Component discovers it has overcharged a requester or a requester has overpaid, the Component shall promptly refund the charge to the requester by reimbursement methods that are agreeable to the requester and the Component. § 286.25 Collection of fees and fee rates.

(a)*Collection of fees.* Collection of fees will be made at the time of providing the documents to the requester or recipient when the requester specifically states the costs involved shall be acceptable or acceptable up to a specified limit that covers the anticipated costs.

(b)*Fees for search time.*

(1)*Manual search fees.* This table shows FOIA hourly processing fees. Type Grade Hourly rate ($) Clerical E9/GS8 and below/NSPS pay band 1 27.00 Professional O1-O6/W01-05/GS9-GS15/NSPS pay bands 2 and 3 53.00 Executive O7/GS16/SES and above 108.00 Contractor 53.00

(2)*Computer search.* Fee assessments for computer search consists of 2 parts; individual time (hereafter referred to as human time), and machine time.

(i)*Human time.* Human time is all the time spent by humans performing the necessary tasks to prepare the job for a machine to execute the run command. This includes the time spent to create a program to extract specific fields out of a database. If execution of a run requires monitoring by a human, that human time may be also assessed as computer search. The terms “programmer/operator” shall not be limited to the traditional programmers or operators. Rather, the terms shall be interpreted in their broadest sense to incorporate any human involved in performing the computer job (e.g., technician, administrative support, operator, programmer, database administrator, or action officer).

(ii)*Machine time.* Machine time involves only direct costs of the Central Processing Unit (CPU), input/output devices, and memory capacity used in the actual computer configuration. Only this CPU rate shall be charged. No other machine related costs shall be charged. In situations where the capability does not exist to calculate CPU time, no machine costs can be passed on to the requester. When CPU calculations are not available, only human time costs shall be assessed to requesters. Should the DoD Components lease computers, the services charged by the lessor shall not be passed to the requester under the FOIA.

(c)*Duplication.* This table shows duplication costs. Type Cost per page (cents) Pre-Printed material 02. Office copy 15. Microfiche 25. Computer copies (tapes, discs or printouts) Actual cost of duplicating the tape, disc or printout (includes operator's time and cost of the medium).

(d)*Review Fees.* See paragraph (b)(1) of this section.

(e)*Audiovisual documentary materials.* Search costs are computed as for any other record. Duplication cost is the actual direct cost of reproducing the material, including the wage of the person doing the work. If the duplication is performed by a contractor, then the actual cost charged to the government by the contractor is passed on to the requester. Audiovisual materials provided to a requester need not be in reproducible format or quality.

(f)*Other records.* Direct search and duplication cost for any record not described in this paragraph shall be computed in the manner described for audiovisual documentary material.

(g)*Costs for special services.* Complying with requests for special services is at the discretion of the Components. Neither the FOIA nor its fee structure covers these kinds of services. Therefore, Components may recover the costs of special services requested by the requester after agreement has been obtained in writing from the requester to pay for one or more of the following services:

(1)Certifying that records are true copies.

(2)Sending records by special methods such as express mail, etc. § 286.26 Fees for technical data.

(a)Technical data is recorded information related to experimental, developmental, or engineering works that can be used to define an engineering or manufacturing process or to design, procure, produce, support, maintain, operate, repair, or overhaul material. The data may be graphic or pictorial delineations in media, such as drawings or photographs, text in specification or related performance or design type documents, or computer printouts. Examples of tech data include research and engineering data, engineering drawings, and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identification, and related information and computer software documentation.

(b)Unless technical data qualifies for withholding from public release under one or more of the FOIA exemptions, it shall be released to the requester after all reasonable costs attributed to search, duplication, and review are paid as authorized by 10 U.S.C. 2328. All reasonable costs are the full costs to the Federal Government for rendering the service, or fair market value of the service, whichever is higher. Fair market value shall be determined in accordance with commercial rates in the local geographic area. In the absence of a known market value, charges will be based on recovery of all direct and indirect costs to conduct the search, review, and duplicate the documents. This cost is to be differentiated from the direct costs allowable under § 286.24 for other types of information released under the FOIA.

(1)The DoD Components shall retain the amounts received by such a release, and it shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs were incurred in complying with request.

(2)The DoD Components that process FOIA requests for technical data and are eligible to recoup the direct costs for providing the records shall establish an appropriate fee schedule taking into account the prevailing commercial rates.

(c)*Waiver.* The DoD Components shall waive the payment of costs required in § 286.24(a) which are greater than the costs that would be required for release of this same information under § 186.25(a) of this subchapter if:

(1)The request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable it to submit an offer, or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States. However, DoD Components may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, which will be refunded upon submission of an offer by the citizen or corporation;

(2)The release of technical data is requested in order to comply with the terms of an international agreement; or,

(3)The Component determines in accordance with § 286.24(c)(4)(i)(D) that such a waiver is in the interest of the United States. § 286.27 Fees for research data. Research data described in § 286.2, definition “Agency record” obtained by the DoD Component from a grant recipient solely in response to a request submitted by a FOIA requester, may charge that requester a reasonable fee equaling the full incremental cost of obtaining the research data. The fee should reflect costs incurred by the Component, grant recipient, and sub-recipients. This fee is in addition to any fees the Component may assess under the FOIA. Subpart F—Education and Training § 286.30 Purpose and responsibility.

(a)*Purpose.* The purpose of the Component FOIA educational and training programs is to promote a positive attitude among DoD personnel and raise the level of understanding and appreciation of the DoD FOIA Program. Fulfilling this purpose will improve customer service with members of the public and improve the public trust in the Department of Defense.

(b)*Responsibility.* Each DoD Component shall establish educational and training programs on the provisions and requirements of this part. These should be targeted toward developing in all Component personnel a general understanding and appreciation of the DoD FOIA Program. The training programs should be focused on providing personnel involved in the day-to-day processing of FOIA requests with a thorough understanding of the procedures outlined in this part.

(c)*Scope and principles.* Each DoD Component shall design its FOIA educational and training programs to fit the particular requirements of its personnel, dependent upon their degree of involvement in implementing this part. These programs should be designed for two target audiences; those personnel who are involved in the day-to-day processing of FOIA requests, and those staff personnel who provide search and/or review staff support to the Component FOIA process. The programs should be designed to accomplish the following objectives:

(1)Familiarize personnel with the requirements of the FOIA and its implementation by this part.

(2)Instruct personnel who act in FOIA matters on the provisions of this part; advise them of the legal hazards involved and the strict prohibition against arbitrary and capricious withholding of information.

(3)Provide procedural and legal guidance and instruction to initial denial and appellate authorities concerning the discharge of their responsibilities.

(4)Emphasize that the processing of FOIA requests must be citizen-centered and results-oriented.

(5)Advise personnel of the penalties for noncompliance with the FOIA. § 28.31 Implementation. To ensure uniformity of interpretation, the Components should coordinate their educational and training programs with DFOIPO. Appendix A to Part 286—DoD FOIA Program Components List of DoD FOIA Program Components Office of the Secretary of Defense Office of the Chairman of the Joint Chiefs of Staff Combatant Commands DoD Field Activities Department of the Army Department of the Navy Department of the Air Force Defense Commissary Agency Defense Contract Audit Agency Defense Contract Management Agency Defense Finance and Accounting Service Defense Information Systems Agency Defense Intelligence Agency Defense Logistics Agency Defense Security Service Defense Threat Reduction Agency National Geospatial Intelligence Agency National Reconnaissance Office National Security Agency Office of the Inspector General, Department of Defense Appendix B to Part 286—Addressing FOIA Requests AP2.1. *General.* AP2.1.1. The Department of Defense does not have a central repository for DoD records. FOIA requests, therefore, should be addressed to the FOIA Requester Service Center of the DoD Component that has custody of the record desired. DFOIPO maintains a current list of links to FOIA Requester Service Centers at *http://www.dod.mil/odam/DFOIPO/ServiceCenters.html* . AP2.1.2. If uncertain as to the ownership of the record, DoD personnel shall refer the requester to the FOIA Requester Service Center most likely to have the record, or to the OSD/ Joint Staff FOIA Requester Service Center. AP2.2. *DoD Component FOIA Requester Service Center Addresses* . AP2.2.1. *OSD and the Chairman of the Joint Chiefs of Staff* . AP2.2.1.1. Address all requests to: FOIA Requester Service Center, Office of the Secretary of Defense/Joint Staff, 1155 Defense Pentagon, Washington, DC 20301-1155. *http://www.dod.mil/pubs/foi/index.html* . The OSD/Joint Staff FOIA Requester Service Center also processes FOIA requests for the activities in paragraph AP2.2.1.2. AP2.2.1.2. *Activities for Which the OSD/Joint Staff FOIA Requester Service Center Processes Requests* . American Forces Information Service Armed Forces Radiology Research Institute Defense Acquisition University Defense Advanced Research Projects Agency Defense Business Transformation Agency Defense Prisoner of War/Missing Persons Office Defense Security Cooperation Agency Defense Systems Management College Defense Technology Security Administration DoD Counterintelligence Field Activity DoD Human Resources Activity Joint Professional Military Education Colleges Missile Defense Agency National Defense University Pentagon Force Protection Agency Uniformed Services University of the Health Sciences Washington Headquarters Services White House Military Office AP2.2.2. *Department of the Army.* Address requests for Headquarters, U.S. Army, records, or if there is uncertainty as to which Army activity may have the records, address requests to: Department of the Army, Freedom of Information and Privacy Acts Office, TAPC-PDR-PF, 7798 Cissna Road, Suite 205, Springfield, VA 22150-3166. *https://www.rmda.belvoir.army.mil/rmdaxml/rmda/FPHomePage.asp* . AP2.2.3. *Department of the Navy.* Address requests to the Commanding Officer of any Navy or Marine Corps activity. Clearly indicate that the request is a FOIA request. For Secretary of the Navy, Chief of Naval Operations, and Naval Historical Center records, or if there is uncertainty as to which Navy activity may have the records, send requests to: Chief of Naval Operations, DNS-36, 2000 Navy Pentagon, Washington, DC 20350-2000. Electronic requests may be filed at *http://foia.navy.mil/* . For U.S. Marine Corps records, or if there is uncertainty as to which Marine activity may have the records, send requests to: Commandant of the Marine Corps, HQ USMC (ARSF), 2 Navy Annex, Washington, DC 20380-0001. *http://hqinet001.hqmc.usmc.mil/FOIA/index.htm* . AP2.2.4. *Department of the Air Force.* Address requests to the Commander of any Air Force installation, major command, or field operating agency, to the attention of the FOIA Requester Service Center. For Headquarters, United States Air Force, records, or if there is uncertainty as to which Air Force activity may have the records, send requests to: Department of the Air Force, HAF/ICIOD (FOIA), 1000 Air Force Pentagon, Washington, DC 20330-1000. *http://www.foia.af.mil/* . AP2.2.5. *Defense Commissary Agency.* Defense Commissary Agency, FOIA/Privacy Act Officer, 1300 E. Avenue, Fort Lee, VA 23801-1800. *http://www.commissaries.com/foiainfo.cfm* . AP2.2.6. *Defense Contract Audit Agency* (DCAA). Address requests to any DCAA regional office or to DCAA Headquarters. For Headquarters, DCAA, records, or if there is uncertainty as to which DCAA region may have the records, send requests to: Defense Contract Audit Agency, ATTN: CMR, FOIA Requester Service Center, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219. DCAA regional office addresses can be found at: *http://www.dcaa.mil/foia.htm* . AP2.2.7. *Defense Contract Management Agency.* Defense Contract Management Agency, Attn: DCMA-DSA, 6350 Walker Lane #300, Alexandria, VA 22310-3226. *http://www.dcma.mil/foia.htm* . AP2.2.8. *Defense Finance and Accounting Service* (DFAS). Address requests to any DFAS regional office or to Headquarters, DFAS. For Headquarters, DFAS, records, or if there is uncertainty as to which DFAS region may have the records, address requests to: Defense Finance and Accounting Service, DFAS-HAC/DE, Corporate Communications, 6760 East Irvington Place, Denver, CO 80279-8000. Addresses for DFAS regional office FOIA Requester Service Centers are located at *http://www.dfas.mil* . AP2.2.9. *Defense Information Systems Agency* (DISA). DISA records may be requested from any DISA field activity or from its Headquarters. Requesters should send FOIA requests to Defense Information Systems Agency, Attn: Headquarters FOIA Requester Service Center, P.O. Box 4502, Arlington, VA 22204-4502. *http://www.disa.mil/gc/foia/foia.html* . AP2.2.10. *Defense Intelligence Agency.* Defense Intelligence Agency, Attn: DIAC, DAN-1A (FOIA), Washington, DC 20340-5100. *http://www.dia.mil/publicaffairs/Foia/foia.htm* . AP2.2.11. *Defense Logistics Agency* (DLA). DLA records may be requested from its headquarters or from any of its field activities. Requesters should send FOIA requests to Defense Logistics Agency, Attn: DP-FOIA, 8725 John J. Kingman Road, Suite 2533, Ft. Belvoir, VA 22060-6221. Addresses for DLA field activity FOIA Requester Service Centers are located at *http://www.dla.mil/public_info/efoia/FOIAPOC.html* . AP2.2.12. *Defense Security Service.* Defense Security Service, Office of FOIA and Privacy, 1340 Braddock Place, Alexandria, VA 22314-1651. *http://www.dss.mil/foia/foia.html* . AP2.2.13. *Defense Threat Reduction Agency.* Defense Threat Reduction Agency, COSMI FOI/Privacy Office, 8725 John J. Kingman Rd., Fort Belvoir, VA 22060-6201. *http://www.dtra.mil/be/FOIA/index.cfm* . AP2.2.14. *National Geospatial-Intelligence Agency.* National Geospatial-Intelligence Agency, Office of General Counsel, Attn: GCP, Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 20816-5003. *http://www.nga.mil* . AP2.2.15. *National Reconnaissance Office.* National Reconnaissance Office, Information Access and Release Center, Attn: FOIA Officer, 14675 Lee Road, Chantilly, VA 20151-1715. *http://www.nro.gov/foia/index.html* AP2.2.16. *National Security Agency.* National Security Agency/Central Security Service, FOIA/PA Services, DC34, 9800 Savage Road, Suite 6248, Fort George G. Meade, MD 20755-6248. *http://www.nsa.gov/foia/index.cfm* . AP2.2.17. *Inspector General of the Department of Defense.* Inspector General of the Department of Defense, Chief FOIA/PA Office, 400 Army Navy Drive, Room 201, Arlington, VA 22202-4704. *http://www.dodig.osd.mil/fo/Foia/foia.htm.* AP2.3. *DoD Field Activity And Combatant Command Addresses* Although the below FOIA Requester Service Centers are OSD Components for the purposes of the FOIA, these Centers respond directly to the public on initial requests. Accordingly, initial requests should be sent to the addresses indicated. AP2.3.1. *DoD TRICARE Management Activity.* TRICARE Management Activity, Attention: Freedom of Information Act Officer, 16401 East Centretech Parkway, Aurora, CO 80011-9043. *http://www.tricare.mil/tmaprivacy/foia.cfm* . AP2.3.2. *Chairman, Armed Services Board of Contract Appeals.* Chairman, Armed Services Board of Contract Appeals, Skyline Six Room 703, 5109 Leesburg Pike, Falls Church, VA 22041-3208. AP2.3.3. *Defense Technical Information Center.* Defense Technical Information Center, Attn: FOIA Program Manager, 8725 John J. Kingman Road, Suite 0944, Fort Belvoir, VA 22062-6218. *http://www.dtic.mil/dtic/foia/* . AP2.3.4 *DoD Education Activity.* DoD Education Activity, Freedom of Information Act Officer, 4040 North Fairfax Dr., Arlington, VA 22203-1635. *http://www.dodea.edu/foia/* . AP2.3.5. *U.S. Central Command.* U.S. Central Command, CCJ6-RD (FOIA), 7115 South Boundary Blvd., MacDill Air Force Base, FL 33621-5101. *http://www.centcom.mil/sites/foia/default.aspx* . AP2.3.6. *U.S. European Command.* U.S. European Command, FOIA Requester Service Center, Unit 30400 Box 1000, APO AE 09131. *http://www.eucom.mil/english/FOIA/main.asp* . AP2.3.7. *U.S. Joint Forces Command.* U.S. Joint Forces Command, Code J024, 1526 Mitscher Ave., Ste. 200, Norfolk, VA 23511-5100. *http://www.jfcom.mil/about/foia.htm* . AP2.3.8. *U.S. Northern Command.* U.S. Northern Command, FOIA Officer, 250 Vandenberg Street, Suite B016, Peterson Air Force Base, CO 80914-38040. *http://www.northcom.mil/foia/home.htm* . AP2.3.9. *U.S. Pacific Command.* U.S. Pacific Command, J151 FOIA, Box 64017, Camp H. M. Smith, HI 96861-4017. *http://www.pacom.mil/foia/homepage.shtml* . AP2.3.10. *U.S. Southern Command.* U.S. Southern Command, SCJ1-A (FOIA), 3511 NW .91st Avenue, Miami, FL 33172-1217. *http://www.southcom.mil/AppsSC/pages/foia.php* . AP2.3.11. *U.S. Special Operations Command.* U.S. Special Operations Command, SOCS-SJS-I/FOIA Requester Service Center, 7701 Tampa Point Blvd., MacDill Air Force Base, FL 33621-5323. *http://www.socom.mil/foia/* . AP2.3.12. *U.S. Strategic Command.* U.S. Strategic Command, Attn: J01031 (FOIA), 901 SAC Blvd., Suite 1E5, Offutt Air Force Base, NE 68113-6000. *http://www.stratcom.mil/foia/* . AP2.3.13. *U.S. Transportation Command.* U.S. Transportation Command, Attn: TCCS-IM, 508 Scott Drive, Scott Air Force Base, IL 62225-5357. *http://www.transcom.mil/foia.cfm* . AP2.4. *National Guard Bureau* The National Guard Bureau FOIA Requester Service Center is unique in that it processes its own initial FOIA requests; however, FOIA appeals are handled either by the Department of the Army or the Department of the Air Force. The address is: Chief, National Guard Bureau, Attn: NGB-SDA (FOIA), 1411 Jefferson Davis Highway, Arlington, VA 22202-3231. *http://www.ngb.army.mil/sitelinks/foia.aspx* . Dated: December 11, 2007. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. E7-24359 Filed 12-18-07; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Office of Inspector General 42 CFR Part 1001 Solicitation of New Safe Harbors and Special Fraud Alerts AGENCY: Office of Inspector General (OIG), HHS. ACTION: Notice of intent to develop regulations. SUMMARY: In accordance with section 205 of the Health Insurance Portability and Accountability Act (HIPAA) of 1996, this annual notice solicits proposals and recommendations for developing new and modifying existing safe harbor provisions under the Federal anti-kickback statute (section 1128B(b) of the Social Security Act), as well as developing new OIG Special Fraud Alerts. DATES: To assure consideration, public comments must be delivered to the address provided below by no later than 5 p.m. on February 19, 2008. ADDRESSES: In commenting, please refer to file code OIG-112-N. Because of staff and resource limitations, we cannot accept comments by facsimile

(FAX)transmission. You may submit comments in one of three ways (no duplicates, please): 1. *Electronically.* You may submit electronic comments on specific recommendations and proposals through the Federal eRulemaking Portal at *http://www.regulations.gov.* (Attachments should be in Microsoft Word, if possible.) 2. *By regular, express, or overnight mail.* You may send written comments to the following address: Office of Inspector General, Department of Health and Human Services, Attention: OIG-112-N, Room 5246, Cohen Building, 330 Independence Avenue, SW., Washington, DC 20201. Please allow sufficient time for mailed comments to be received before the close of the comment period. 3. *By hand or courier.* If you prefer, you may deliver, by hand or courier, your written comments before the close period to Office of Inspector General, Department of Health and Human Services, Cohen Building, 330 Independence Avenue, SW., Washington, DC 20201. Because access to the interior of the Cohen Building is not readily available to persons without Federal Government identification, commenters are encouraged to schedule their delivery with one of our staff members at

(202)358-3141. For information on viewing public comments, please see the Supplementary Information section. FOR FURTHER INFORMATION CONTACT: Joel Schaer,

(202)619-0089, OIG Regulations Officer. SUPPLEMENTARY INFORMATION: *Submitting Comments:* We welcome comments from the public on recommendations for developing new or revised safe harbors and Special Fraud Alerts. Please assist us by referencing the file code OIG-112-N. *Inspection of Public Comments:* All comments received before the end of the comment period are available for viewing by the public. All comments will be posted on *http://www.regulations.gov* as soon as possible after they have been received. Comments received timely will also be available for public inspection as they are received at Office of Inspector General, Department of Health and Human Services, Cohen Building, 330 Independence Avenue, SW., Washington, DC 20201, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone

(202)619-0089. I. Background A. OIG Safe Harbor Provisions Section 1128B(b) of the Social Security Act (the Act) (42 U.S.C. 1320a-7b(b)) provides criminal penalties for individuals or entities that knowingly and willfully offer, pay, solicit or receive remuneration in order to induce or reward business reimbursable under the Federal health care programs. The offense is classified as a felony and is punishable by fines of up to $25,000 and imprisonment for up to 5 years. OIG may also impose civil money penalties, in accordance with section 1128A(a)(7) of the Act (42 U.S.C. 1320a-7a(a)(7)), or exclusion from the Federal health care programs, in accordance with section 1128(b)(7) of the Act (42 U.S.C. 1320a-7(b)(7)). Since the statute on its face is so broad, concern has been expressed for many years that some relatively innocuous commercial arrangements may be subject to criminal prosecution or administrative sanction. In response to the above concern, the Medicare and Medicaid Patient and Program Protection Act of 1987, section 14 of Public Law 100-93, specifically required the development and promulgation of regulations, the so-called “safe harbor” provisions, specifying various payment and business practices which, although potentially capable of inducing referrals of business reimbursable under the Federal health care programs, would not be treated as criminal offenses under the anti-kickback statute and would not serve as a basis for administrative sanctions. OIG safe harbor provisions have been developed “to limit the reach of the statute somewhat by permitting certain non-abusive arrangements, while encouraging beneficial and innocuous arrangements” (56 FR 35952, July 29, 1991). Health care providers and others may voluntarily seek to comply with these provisions so that they have the assurance that their business practices will not be subject to liability under the anti-kickback statute or related administrative authorities. Existing OIG safe harbors describing those practices that are sheltered from liability are codified in 42 CFR part 1001. B. OIG Special Fraud Alerts OIG has also periodically issued Special Fraud Alerts to give continuing guidance to health care providers with respect to practices OIG finds potentially fraudulent or abusive. The Special Fraud Alerts encourage industry compliance by giving providers guidance that can be applied to their own practices. OIG Special Fraud Alerts are intended for extensive distribution directly to the health care provider community, as well as to those charged with administering the Federal health care programs. In developing these Special Fraud Alerts, OIG has relied on a number of sources and has consulted directly with experts in the subject field, including those within OIG, other agencies of the Department, other Federal and State agencies, and those in the health care industry. C. Section 205 of Public Law 104-191 Section 205 of Public Law 104-191 requires the Department to develop and publish an annual notice in the **Federal Register** formally soliciting proposals for modifying existing safe harbors to the anti-kickback statute and for developing new safe harbors and Special Fraud Alerts. In developing safe harbors for a criminal statute, OIG is required to engage in a thorough review of the range of factual circumstances that may fall within the proposed safe harbor subject area so as to uncover potential opportunities for fraud and abuse. Only then can OIG determine, in consultation with the Department of Justice, whether it can effectively develop regulatory limitations and controls that will permit beneficial and innocuous arrangements within a subject area while, at the same time, protecting the Federal health care programs and their beneficiaries from abusive practices. II. Solicitation of Additional New Recommendations and Proposals In accordance with the requirements of section 205 of Public Law 104-191, OIG last published a **Federal Register** solicitation notice for developing new safe harbors and Special Fraud Alerts on December 11, 2006 (71 FR 71501). As required under section 205, a status report of the public comments received in response to that notice is set forth in Appendix D to the OIG's Semiannual Report covering the period April 1, 2007, through September 30, 2007. 1 OIG is not seeking additional public comment on the proposals listed in Appendix D at this time. Rather, this notice seeks additional recommendations regarding the development of proposed or modified safe harbor regulations and new Special Fraud Alerts beyond those summarized in Appendix D to the OIG Semiannual Report referenced above. 1 The OIG Semiannual Report can be accessed through the OIG web site at *http://oig.hhs.gov/publications/semiannual.html.* A. Criteria for Modifying and Establishing Safe Harbor Provisions In accordance with section 205 of HIPAA, we will consider a number of factors in reviewing proposals for new or modified safe harbor provisions, such as the extent to which the proposals would affect an increase or decrease in— • Access to health care services, • The quality of services, • Patient freedom of choice among health care providers, • Competition among health care providers, • The cost to Federal health care programs, • The potential overutilization of the health care services, and • The ability of health care facilities to provide services in medically underserved areas or to medically underserved populations. In addition, we will also take into consideration other factors, including, for example, the existence (or nonexistence) of any potential financial benefit to health care professionals or providers that may take into account their decisions whether to

(1)order a health care item or service or

(2)arrange for a referral of health care items or services to a particular practitioner or provider. B. Criteria for Developing Special Fraud Alerts In determining whether to issue additional Special Fraud Alerts, we will also consider whether, and to what extent, the practices that would be identified in a new Special Fraud Alert may result in any of the consequences set forth above, as well as the volume and frequency of the conduct that would be identified in the Special Fraud Alert. A detailed explanation of justifications for, or empirical data supporting, a suggestion for a safe harbor or Special Fraud Alert would be helpful and should, if possible, be included in any response to this solicitation. Daniel R. Levinson, Inspector General. [FR Doc. E7-24579 Filed 12-18-07; 8:45 am] BILLING CODE 4150-04-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 20 Service Regulations Committee Meeting AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of meeting. SUMMARY: The Fish and Wildlife Service (hereinafter Service) will conduct an open meeting on January 30, 2008, to identify and discuss preliminary issues concerning the 2008-09 migratory bird hunting regulations. DATES: The meeting will be held January 30, 2008. ADDRESSES: The Service Regulations Committee will meet at the Embassy Suites Hotel, Denver—International Airport, 7001 Yampa Street, Denver, Colorado,

(303)574-3000. FOR FURTHER INFORMATION CONTACT: Robert Blohm, Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, ms-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240,

(703)358-1714. SUPPLEMENTARY INFORMATION: Under the authority of the Migratory Bird Treaty Act (16 U.S.C. 703-712), the U.S. Fish and Wildlife Service regulates the hunting of migratory game birds. We update the migratory game bird hunting regulations, located at 50 CFR part 20, annually. Through these regulations, we establish the frameworks, or outside limits, for season lengths, bag limits, and areas for migratory game bird hunting. To help us in this process, we have administratively divided the nation into four Flyways (Atlantic, Mississippi, Central, and Pacific), each of which has a Flyway Council. Representatives from the Service, the Service's Migratory Bird Regulations Committee, and Flyway Council Consultants will meet on January 30, 2008, at 8:30 a.m. to identify preliminary issues concerning the 2008-09 migratory bird hunting regulations for discussion and review by the Flyway Councils at their March meetings. In accordance with Departmental policy regarding meetings of the Service Regulations Committee attended by any person outside the Department, these meetings are open to public observation. Paul R. Schmidt, Assistant Director, Migratory Birds, U.S. Fish and Wildlife Service. [FR Doc. E7-24588 Filed 12-18-07; 8:45 am] BILLING CODE 4310-55-P 72 243 Wednesday, December 19, 2007 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request December 13, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding

(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility and clarity of the information to be collected;

(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax

(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling

(202)720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Animal and Plant Health Inspection Service *Title:* Stakeholder/Customer Satisfaction Survey. *OMB Control Number:* 0579-NEW. *Summary of Collection:* In 2003, the Plant Health Program

(PHP)unit, Plant Protection and Quarantine, Animal and Plant Health Inspection Service (APHIS), obtained from the International Organization of Standardization (ISO, nongovernmental worldwide network of national standards institutes) certification in the ISO 9001;2000 standard for its permit services. To meet the ISO 9001;2000 standards, an organization must demonstrate its ability to consistently provide a product that meets customer quality requirements and applicable regulatory requirements, while aiming to enhance customer satisfaction through effective application of the system, including processes for continual improvement of its performance. In order to remain in compliance with Clause 8.2.1 (Customer Satisfaction) of the ISO 9001;2000 standard, PHP must measure the performance of its quality management system by monitoring information related to customer perception in relationship to customer requirements. PHP has determined that the best method for obtaining this information is through the use of stakeholder/customer satisfaction surveys. *Need and Use of the Information:* PHP will collect information from the survey to solicit stakeholder and customer feedback with regards to their satisfaction with the regulatory services of Permit Services, Pest Permit Evaluations, and National Identification Services, which is a compliance requirement of the ISO 9001;2000 standard. Without the information it would seriously affect APHIS' ability to remain in compliance with the ISO 9001;2000 international standards. *Description of Respondents:* Business or other for-profit; Individuals or households; Federal Government *Number of Respondents:* 500. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 80. Animal Plant and Health Inspection Service *Title:* Update of the Nursery Stock Regulations. *OMB Control Number:* 0579-0190. *Summary of Collection:* Under the Plant Protection Act

(PPA)(7 U.S.C. 7701-7772), the Secretary of Agriculture is authorized to prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of plant pests and other articles, to prevent the introduction of plant pests into the United States. Regulations authorized by the PPA concerning the importation of nursery stock, plants, roots, bulbs, seeds, and other plant products are contained in Title 7 of the Code of Federal Regulations, “Nursery Stock,” 319.37 through 319.34-14. Implementing the nursery stock regulations requires APHIS to collect information from a variety of individuals who are involved in growing, exporting, and importing nursery stock. *Need and Use of the Information:* APHIS will collect information to ensure that plant pests are not introduced into the United States. The information APHIS collects serves as the supporting documentation needed to issue required PPQ forms and documents that allow importation of nursery stock. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 30. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 75. Ruth Brown, Departmental Information Collection Clearance Officer. [FR Doc. E7-24548 Filed 12-18-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0148] A Business Plan To Advance Animal Disease Traceability AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of availability and request for comments. SUMMARY: We are advising the public that we are making available for review and comment a Business Plan to Advance Animal Disease Traceability. The Business Plan details recommended strategies and actions to enable existing State and Federal regulated and voluntary animal health programs, industry-administered management and marketing programs, and various animal identification methods to work in harmony with the National Animal Identification System. ADDRESSES: The Business Plan is available on the Internet at *http://animalid.aphis.usda.gov/nais/.* The document may also be viewed in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. FOR FURTHER INFORMATION CONTACT: Mr. Neil Hammerschmidt, Coordinator, National Animal Identification System, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 200, Riverdale, MD 20737-1231;

(301)734-5571. SUPPLEMENTARY INFORMATION: Background As part of its ongoing efforts to safeguard animal health, the U.S. Department of Agriculture

(USDA)initiated implementation of a National Animal Identification System

(NAIS)in 2004. The NAIS is a cooperative State-Federal-industry program administered by USDA's Animal and Plant Health Inspection Service (APHIS). The purpose of the NAIS is to provide a streamlined information system that will help producers and animal health officials respond quickly and effectively to animal disease events in the United States. The ultimate long-term goal of the NAIS is to provide State and Federal officials with the capability to identify all animals and premises that have had direct contact with a disease of concern within 48 hours after discovery. Meeting that goal requires a comprehensive animal-disease traceability infrastructure. We have therefore developed a Business Plan to Advance Animal Disease Traceability. The Business Plan details recommended strategies and actions to enable existing State and Federal regulated and voluntary animal health programs, industry-administered management and marketing programs, and various animal identification methods to work in harmony in the NAIS. The document also includes budget summaries and fiscal year 2008 budget plans, as well as species-specific performance goals and timelines. Elements of the Business Plan are discussed in greater detail below. We are now making the document available to the public for review and comment. We will solicit public comments and stakeholder feedback through the NAIS Web site. Strategies Strategy 1: Prioritize Species/Sectors Prioritization of species and sectors will ensure that resources are applied where traceability advances are of the highest importance. The Business Plan first categorizes species based on existing tracing capabilities and the need for improvement. Priority species include the primary commercial food animal industries: Cattle, poultry (chickens and turkeys), swine, sheep, and goats. Equines are also included as a priority species because the frequency with which some horses are moved significant differences to one or more events where they are commingled with other horses that also may have been moved long distances from a variety of premises of origin raises concerns about the spread of disease. Additionally, sectors within each of the species referred to above have been prioritized to advance traceability where it is most needed. Strategy 2: Harmonize Animal Identification Systems The need for unique animal identification in government and industry programs is accelerating. As a result, producers are seeking improved and flexible identification methods and compatible processes and data standards that may be used for multiple purposes. The harmonization of animal identification systems will result in more cost-effective options, benefiting producers while achieving increased animal disease traceability for the entire industry. Strategy 3: Standardize Data Elements for Disease Programs To Ensure Compatibility APHIS will take steps to standardize data elements and make use of the standards in existing disease programs. Additionally, APHIS will consider a regulation to require the use of certain standardized data elements for import/export regulations, including the standardized premises identification number

(PIN)to identify premises importing and exporting livestock. The use of the PIN on interstate certificates of veterinary inspection will also be facilitated and encouraged. The information on locations participating in official disease control programs and on the animals' origin and destination premises that would be listed on interstate certificates of veterinary inspection and on import/export health certificates would greatly enhance animal disease tracing and emergency response capabilities. Strategy 4: Integrate Automated Data Capture Technologies Into Disease Programs APHIS will take steps to integrate electronic data capture and reporting technologies into existing disease programs. By using NAIS-compliant identification devices that support automated data capture technology and integrating handheld computers and readers to replace paper-based forms, animal health officials will be able to electronically record and submit essential data to the USDA's Animal Health and Surveillance Monitoring database and other appropriate animal health databases. We anticipate that the electronic collection of data will increase volume and quality, minimize data errors, and speed data entry into a searchable database. Strategy 5: Partner With States Working in close partnership with State, Tribal, and Territorial officials, APHIS will continue to facilitate the development of each State's animal disease traceability infrastructure. Each State's animal health officials will administer and manage localized plans reflecting the animal health priorities in individual regions. Strategy 6: Collaborate With Industry and Sectors Producer organizations, representing member interests, can accelerate the adoption of practices that advance traceability. APHIS has entered into cooperative agreements with nonprofit industry organizations to promote premises registration within various species groups. Collaboration with USDA-accredited veterinarians will facilitate the delivery of accurate information to clients, as well as enhance the adoption of animal identification data elements in everyday production management systems and disease-program activities at the producer level. Additional partnership efforts with industry alliances, service providers, auction markets, feedlots, harvesting facilities, and other industry sectors are a priority for APHIS. Strategy 7: Advance Identification Technologies Continued advancements in traceability require practical, affordable technology solutions that improve the efficiency and accuracy of animal identification data collection. APHIS will collaborate with stakeholders to facilitate the development of performance standards for identification devices and evaluate emerging technologies, with emphasis on systems that can operate at the “speed of commerce.” Outcomes and Timelines Because the need to advance traceability differs among the various species and sectors, it is important for us to establish clear priorities as we proceed with implementing the NAIS. Targeted timelines for key strategies and actions will guide the implementation of these priorities. Due in part to its size and diversification, the cattle industry, at this time, has the greatest need to advance traceability, including increasing the level of official identification. These challenges require more resources and time to achieve optimum tracing capability for the industry. Achieving Necessary Participation The seven strategies discussed above are designed to increase involvement in the NAIS in order to achieve a “critical mass” of participation, at which point at least 70 percent of the animals in a specific species would be identified and traceable either to their premises of origin, (e.g., cattle, sheep and goats) or to their last production premises (e.g., swine and poultry). This performance measure will enable us to gauge the progress being made towards the participation levels necessary to achieve the optimum traceability goal; the 70 percent figure is an interim measurement designed to support incremental advancement, particularly in the cattle industry, where significant improvement is necessary. Comments about the Business Plan or other aspects of the NAIS may be submitted to USDA through the NAIS Web site e-mail address: *animalidcomments@aphis.usda.gov* or by mail to NAIS Program Staff, VS, APHIS, 4700 River Road Unit 200, Riverdale, MD 20737. Done in Washington, DC, this 14th day of December 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-24656 Filed 12-18-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0147] National Animal Identification System; User Guide and Additional Information Resources AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of availability and request for comments. SUMMARY: We are advising the public that we are have prepared a revised version of the National Animal Identification System

(NAIS)User Guide that was originally released in draft form in November 2006. The revised User Guide contains the most current information on how the system works and how producers may participate in the NAIS. We are making the revised User Guide available for review and comment. ADDRESSES: The revised User Guide is available on the Internet at *http://animalid.aphis.usda.gov/nais/.* The document may also be viewed in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. FOR FURTHER INFORMATION CONTACT: Dr. Adam Grow, Director, Surveillance and Identification Programs, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 200, Riverdale, MD 20737-1231;

(301)734-3752. SUPPLEMENTARY INFORMATION: Background In November 2006, the Animal and Plant Health Inspection Service (APHIS) prepared a document entitled “National Animal Identification System (NAIS): A User Guide and Additional Information Resources.” The document, also known as the Draft User Guide, was intended to provide comprehensive information about the NAIS for people and entities wishing to participate in the system, which is voluntary at the Federal level. We originally posted the Draft User Guide on the NAIS Internet Web site ( *http://animalid.aphis.usda.gov/nais/* ) in November 2006. Subsequently, we developed two technical guidance documents to supplement the Draft User Guide. A notice announcing the availability of all three documents for public review and comment was published in the **Federal Register** on February 1, 2007 (72 FR 4680-4681, Docket No. APHIS-2007-0007). In the February 2007 notice, we stated that the Draft User Guide replaced all previously published program documents, including the 2005 Draft Strategic Plan and Draft Program Standards (announced at 70 FR 23961-23963, May 6, 2005) and the 2006 NAIS Implementation Plan (announced at 71 FR 17805-17806, April 7, 2006). Those earlier documents had provided the opportunity for the public to comment on the NAIS as APHIS worked through many issues involving industry and the States and Tribes. We received valuable feedback from producers, State and Tribal animal health officials, and other interested stakeholders regarding those documents and the NAIS. The Draft User Guide that we then produced to replace the earlier documents represented the most up-to-date general information on the NAIS available at the time of its release. The Draft User Guide provided comprehensive information about participating in the NAIS. Part I of the document provided a brief overview to familiarize producers with the NAIS, its goals, its organizational components, and other information concerning its ongoing implementation. The remainder of the document discussed each of the NAIS' components in greater detail and provided operational-level “how to” information and resources. Part II of the document provided information about premises registration; Part III of the document discussed the animal identification component of the program; and Part IV of the document detailed the animal tracing component. When we released the Draft User Guide to the public, we noted that the program would continue to evolve as details were addressed through ongoing dialogue with all stakeholders. Recently, we determined that a revision to the Draft User Guide was needed to reflect changes that have been made in the program in order to prevent confusion among stakeholders about these changes and to provide the most up-to-date information on the status of the NAIS. We are, therefore, now making available to the public for review and comment an updated version of the User Guide. We will accept public comments and stakeholder feedback on the document on an ongoing basis (see ADDRESSES above for commenting instructions). We expect that as the NAIS continues to evolve, so, too, will the User Guide. The revised document incorporates updates to three of the four parts of the original Draft User Guide. These changes are discussed more fully below. Part I: Overview of the NAIS *Benefit-cost analysis.* In July 2007, APHIS announced that Kansas State University would be conducting a benefit-cost analysis, with a final report to be completed by July/August 2008. This information has been added to the section of the User Guide that discusses the economic benefits of the NAIS in order to inform our stakeholders that more complete analysis and information will be available in the future. *Animal Identification Number Device Distribution Databases (AIN DDDs).* References to AIN DDDs have been removed from Part I of the User Guide, since the development of these databases is no longer being considered, for reasons discussed in greater detail below. Part III: Animal Identification *Publication of numbering systems final rule.* On July 18, 2007, APHIS published in the **Federal Register** (72 FR 39301-39307, Docket No. 04-052-2) a final rule that, among other things, recognized the AIN as an official means for the identification of individual animals in commerce generally and in disease programs. This information has now been added to the User Guide's discussion of the use of the AIN in the NAIS to ensure that participants are aware that the rule was finalized. *Brand State Working Group.* When the Draft User Guide was first developed, the Brand State Working Group had only recently been formed. Additional information about the objectives of the Brand State Working Group has been added to the revised User Guide. *Integration of AIN tags with existing animal health identification systems—brucellosis.* Although several disease programs had begun integrating NAIS-compliant AIN tags when the Draft User Guide was first published, the brucellosis program was listed as one that would be integrating in the near future. AIN tags are now recognized as official for use in the brucellosis program, if preferred by the producer and if such action does not conflict with State regulations. We have added this information to the revised User Guide in order to clarify an issue that has confused some NAIS participants. *AIN DDDs.* Part III of the revised User Guide explains how the distribution records of AIN devices will be administered using the AIN Management System. At the time of publication of the original Draft User Guide, we were considering the use of databases (AIN DDDs) that would be maintained by AIN device manufacturers, industry organizations, service providers, States, etc., to receive and maintain the records of distribution of AIN devices to a premises (the record that indicates what AIN was on each AIN device that went to each premises), as opposed to having the information received by and maintained in our AIN Management System. APHIS had developed potential information technology

(IT)solutions and program administrative processes to support the transition to the AIN DDD infrastructure. We held two public meetings (on March 5-6 and on March 12-13, 2007) to discuss these options and to explore further the administrative and IT requirements for such databases to be practical and effective. At those meetings, various sectors of industry, representatives of livestock markets, service providers, and individuals who either are, or are planning to be, AIN tag managers and AIN tag manufacturers all provided feedback expressing significant concerns about the added costs and increased complexity of maintaining records in such databases. Based on this feedback, we determined that this option did not contribute to a practical and efficient system and was not feasible. Therefore, all references to AIN DDDs have been removed from the revised User Guide, and APHIS will continue to maintain distribution records in the AIN Management System, as before. Part IV: Animal Tracing *Animal Trace Processing System (ATPS).* In March 2007, APHIS completed the interim development of the ATPS—the Federal portal system that will allow Federal and State animal health officials to request information from the administrators of private/State animal tracking databases (ATDs). In addition, working with State and industry partners, we completed the development of the technical requirements necessary for integration of those ATDs with the ATPS. The technical requirements are available online, for use by organizations with ATDs that are interested in participating in this component of the NAIS. Information on this component of the NAIS has been updated in the revised User Guide to ensure that stakeholders are aware of the potential for participation. Comments about the revised User Guide or other aspects of the NAIS may be submitted to USDA through the NAIS Web site e-mail address: *animalidcomments@aphis.usda.gov* or by mail to NAIS Program Staff, VS, APHIS, 4700 River Road, Unit 200, Riverdale, MD 20737. The revised User Guide is considered a “significant guidance document” under the terms of the Office of Management and Budget's

(OMB)“Final Bulletin for Agency Good Guidance Practices,” which was published in the **Federal Register** on January 25, 2007 (72 FR 3432-3440). To learn more about the OMB bulletin and APHIS' implementation of its provisions, visit *http://www.aphis.usda.gov/guidance/.* Done in Washington, DC, this 14th day of December 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-24653 Filed 12-18-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Forest Service Clearwater National Forest; Idaho; Travel Management Plan AGENCY: Forest Service, USDA. ACTION: Revised notice; intent to prepare an environmental impact statement. The original notice was published in the **Federal Register** /Vol. 72, No. 228, November 28, 2007/Notices, pages 67268-67270. SUMMARY: On November 28, 2007, the USDA Forest Service announced its intent to prepare a travel planning environmental impact statement (EIS). The proposed action would designate a site-specific transportation system and prohibit indiscriminate cross-country traffic. The EIS will analyze the effects of the proposed action and alternatives. This Revised Notice is being published because the due date for scoping comments has been extended to January 11, 2008. The Clearwater National Forest invites comments and suggestions on the issues to be addressed. The agency gives notice of the National Environmental Policy Act

(NEPA)analysis and decision-making process on the proposal so interested and affected members of the public may participate and contribute to the final decision. DATES: Comments concerning the scope of the analysis must be received by January 11, 2008. A 45-day public comment period will follow the release of the draft environmental impact statement that is expected in June 2008. The final environmental impact statement is expected in January 2009. ADDRESSES: Send written or electronic comments to: Lochsa Ranger District, Kamiah Ranger Station; *Attn:* Lois Foster, Interdisciplinary Team Leader; Rt. 2 Box 191; Kamiah, ID 83536; FAX 208-935-4275; E-mail *comments-northern-clearwater@fs.fed.us.* FOR FURTHER INFORMATION CONTACT: Lois Foster, Interdisciplinary Team leader,

(208)935-4258. SUPPLEMENTARY INFORMATION: *Purpose and Need for Action* is to

(1)Implement national OHV Rule direction,

(2)Limit indiscriminate cross-country motorized travel,

(3)Designate selected roads and trails for motorized travel,

(4)Designate appropriate areas or routes for travel with oversnow vehicles,

(5)Balance travel opportunities with maintenance and management capability including costs,

(6)Provide for a better spectrum of motorized, non-motorized, and non-mechanized travel opportunities across the CNF in recognition of the need to retain the character of lands recommended for Wilderness designation and the CNF's ability to provide for non-motorized recreation opportunities that are not available on other land ownerships,

(7)Manage impacts to Forest resources,

(8)Improve clarity and consistency of existing travel restrictions, and

(9)amend the 1987 Forest Plan as necessary to accomplish the actions described above. The need for revision of the Forest Plan is supported by nationwide awareness within the Forest Service of the negative effects of indiscriminate off-road travel by motorized users. These concerns led to publication of the Travel Management final rule on November 9, 2005 in the **Federal Register,** 36 CFR Parts 212, 251, 261, 295 “Travel Management: Designated Routes and Areas for Motor Vehicle Use” ( **Federal Register** 2005: 79FR68264). The rule requires each National Forest to designate those roads, trails, and areas that are open to motor vehicle use. The rule prohibits use of motor vehicles off the designated system, as well as use of motor vehicles on routes and in areas that are not consistent with the designation. The rule does not require that over-snow vehicles, such as snowmobiles, are limited to a designated system by exempting them under 121.51, but also states in 212.81 that “use by over-snow vehicles...on National Forest System lands may be allowed, restricted, or prohibited.” The CNF chose to include over-snow vehicles in the analysis. *The Proposed Action* would designate motorized road and trail routes for summer travel on the Clearwater National Forest. Existing Conditions include roads and trails identified as open to motorized travel in the 2005 Travel Guide, plus any error corrections or project-level NEPA decisions made since then. The Proposed Action would include any changes from existing conditions, such as road to trail conversions, designating some roads previously not thought to be travelable, and not designating some roads that were previously thought to be travelable. The transportation system for snow-free travel would include: • 1,623 miles of open yearlong to all highway-legal vehicles (an increase of 8 miles compared to existing conditions); • 509 miles of roads open yearlong to small vehicles such as ATV's and motorcycles, but not including UTV's (an increase of 9 miles); • 633 miles of roads open seasonally to all highway-legal vehicles (a decrease of 13 miles); • 151 miles of roads open seasonally to small vehicles (a decrease of 1 mile); • 93 miles of trails open yearlong to small vehicles (a change of 0 miles); • 226 miles of trails open yearlong to motorcycles (a decrease of 178 miles); • 75 miles of trails open seasonally to small vehicles (an increase of 2 miles); and • 93 miles of trails open seasonally to motorcycles (a change of 0 miles). The proposed action would also modify the dates of seasonal restrictions for roads and trails to reduce the variety of restricted periods, and ultimately improve the clarity of the Motor Vehicle Use Map (MVUM). Motorized travel up to 300 feet off of designated routes to access established campsites would be permitted in most areas. In certain areas, off-route travel would be permitted only to access specifically designated campsites. Existing restrictions for bicycles on all but one road would be eliminated. Bicycle restrictions on roads would drop from a total of 10 miles currently to only 1 mile, which would be entirely within the CNF seed orchard. Areas recommended for wilderness by the Forest Plan would become off limits to bicycles. System trails available to bicycles would drop from 811 miles to 730 miles (a reduction of 81 miles). Over-snow vehicle use would be restricted in areas recommended for wilderness by the Forest Plan. Within the areas where over-snow vehicle use would generally be permitted, there would continue to be some specific routes where over-snow vehicles would be restricted. Over-snow vehicle use would be prohibited forest-wide from October 1 to November 4. The transportation system for over-snow vehicles would include: • 364 miles of groomed snowmobile routes (no change from existing conditions); • 1,322,943 acres generally open to over-snow vehicles except for certain restricted routes; • 3,484 miles of roads where over-snow vehicles would be permitted from November 5 until snowmelt in the spring, compared to 3,174 acres available currently (an increase of 310 acres); and • 503,057 acres closed to over-snow vehicles, compared to 302,856 acres available currently (a decrease of 200,201 acres). The numbers above are only approximate at this time. The existing Forest Plan will be amended. When the Forest Plan was completed in 1987, trail vehicles were few and travel planning was focused almost completely on roads and highway vehicles. Motorized use has increase dramatically since then, and modern vehicles such as snowmobiles, ATV's, and motorcycles have capabilities that could not have been envisioned in 1987. The Forest Plan also contains some conflicting information regarding the intent for management of certain areas. Changes may include: • Better coordination between the level of motorized travel and the focus of certain management areas, primarily those in roadless areas; • Additions or changes to Forest Plan standards to permit implementation of the national Travel Management rule; and • Other goals, objectives, and standards affecting travel management. *Possible Alternatives* the Forest Service will consider include a no-action alternative, which will serve as a baseline for comparison of alternatives. The proposed action will be considered along with additional alternatives that will be developed to meet the purpose and need for action, and to address significant issues identified during scoping. *The Responsible Official* is Thomas K. Reilly, Clearwater Forest Supervisor, Clearwater National Forest, 12730 Highway 12, Orofino, ID 83544. *The Decision To Be Made* is whether to adopt the proposed action, in whole or in part, or another alternative; and what mitigation measures and management requirements will be implemented. *The Scoping Process* for the EIS is being initiated with this notice. The scoping process will identify issues to be analyzed in detail and will lead to the development of alternatives to the proposal. The Forest Services is seeking information and comments from other Federal, State, and local agencies; Tribal governments; and organizations and individuals who may be interested in or affected by the proposed action. Comments received in response to this notice, including the names and addresses of those who comment, will be part of the project record and available for public review. Public meetings will be scheduled during the scoping period. Times, dates and locations for the public meetings will be published in the Lewiston, Idaho *Lewiston Morning Tribune* . *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A draft environmental impact statement will be prepared for comment. The second major opportunity for public input will be when the Draft EIS is published. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Draft EIS is anticipated to be available for public review in June 2008. The comment period on the Draft EIS will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions ( *Vermont Yankee Nuclear Power Corp.* v. *NRDC, 435 U.S. 519, 553 (1978)).* Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts ( *City of Angoon* v. *Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986) and Wisconsin Heritages Inc.* v. *Harris, 490 F. Supp. 1334, 1338 (E.D. Wis. 1980)).* Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the comment period for the Draft EIS so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. After the comment period for the Draft EIS ends, the Forest Service will analyze comments received and address them in the Final EIS. The Final EIS is scheduled to be released by January 2009. The Responsible Official (Forest Supervisor Thomas K. Reilly) will document the decision and rationale in a Record of Decision (ROD). The decision will be subject to review under Forest Service appeal regulations at 36 CFR Part 215. *Preliminary Issues* identified by the Forest Service interdisciplinary team include: changing motorized and non-motorized recreation opportunities, costs of road and trail management and maintenance, soil issues, effects on aquatic environments and species, effects on wildlife, the spread of noxious weeds, changes in motorized access to roads, trails and areas that are not designated as part of the travel planning analysis, and motorized access for people with disabilities. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: December 6, 2007. Thomas K. Reilly, Clearwater Forest Supervisor. [FR Doc. 07-6074 Filed 12-18-07; 8:45 am]

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