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Code · REGISTER · 2008-02-26 · Nuclear Regulatory Commission · Proposed Rules

Proposed Rules. Proposed rule: Extension of comment period

35,922 words·~163 min read·/register/2008/02/26/08-840

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BILLING CODE 3410-02-P NUCLEAR REGULATORY COMMISSION 10 CFR Parts 60, 63, 73, and 74 RIN 3150-AI06 Geologic Repository Operations Area Security and Material Control and Accounting Requirements; Extension of Comment Period AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule: Extension of comment period. SUMMARY: On December 20, 2007 (72 FR 72522), the Nuclear Regulatory Commission
(NRC)published for public comment a proposed rule on Geologic Repository Operations Area Security and Material Control and Accounting Requirements. The public comment period for this proposed rule was to have expired on March 4, 2008. The Nuclear Energy Institute
(NEI)has requested an extension to May 5, 2008. Due to the complex nature of the proposed rule, the NRC has decided to extend the comment period until May 5, 2008. In a letter dated January 22, 2008, NEI requested the additional time to fully capture the relevant industry experience with the type of post September 11, 2001 security enhancements discussed in the proposal. DATES: The comment period has been extended and now expires on May 5, 2008. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date. ADDRESSES: You may submit comments by any one of the following methods. Please include the following number RIN 3150-AI06 in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available to the public in their entirety in NRCs Agencywide Documents Access and Management System (ADAMS). Personal information, such as your name, address, telephone number, e-mail address, etc., will not be removed from your submission. *Mail comments to:* Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. *E-mail comments to: Rulemaking.Comments@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at 301-415-1677. Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* *Hand deliver comments to:* 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone 301-415-1677). *Fax comments to:* Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101. Publicly available documents related to this rulemaking, including comments, may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Merri Horn, telephone
(301)415-8126, e-mail, *mlh1@nrc.gov* of the Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Dated at Rockville, Maryland, this 20th day of February 2008. For the Nuclear Regulatory Commission. Annette Vietti-Cook, Secretary of the Commission. [FR Doc. E8-3597 Filed 2-25-08; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0216; Directorate Identifier 2008-CE-004-AD] RIN 2120-AA64 Airworthiness Directives; Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko” Model SZD-50-3 “Puchacz” Gliders AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above that would supersede an existing AD. 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: On the pre-flight check of a SZD-50-3 glider, the Right Hand
(RH)wing airbrake was found impossible to retract. Investigation revealed that the occurrence was caused by a loose bolt of the “V” shape airbrake bellcrank, named hereafter intermediate control lever. The Left Hand
(LH)wing lever also presented, to a lesser extent, a loose bolt. 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 March 27, 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. 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: Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4130; *fax:*
(816)329-4090. 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-2008-0216; Directorate Identifier 2008-CE-004-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://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 On January 14, 2008, we issued AD 2008-02-09, Amendment 39-15339 (73 FR 3623, January 22, 2008). That AD required actions intended to address an unsafe condition on the products listed above. AD 2008-02-09 was issued as an interim action in order to address the need for the immediate inspection for loose attachment bolts in the left-hand and right-hand wing airbrake intermediate control lever requirement and replacement if loose attachment bolts were found. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, issued Emergency AD No. 2007-0275-E, dated October 24, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The EASA AD allows for repetitive inspections at intervals not to exceed 100 hours time-in-service or 12 months, whichever occurs first after the initial inspection if no loose bolts are found. The EASA AD also requires replacing the split helical spring lock washers with tab washers and the M8x34 bolts with M8x32 bolts on both wings at the next 1,000-hour inspection after the effective date of the AD. The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action were analyzed separately for justification to bypass prior public notice. We are issuing this proposed AD to address the repetitive inspections and mandatory parts replacement issues. Relevant Service Information Allstar PZL Glider Sp. z o. o. has issued Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 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 the 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed 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 6 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $480, or $80 per product. In addition, we estimate that any necessary follow-on actions would take about 12 work-hours and require parts costing $40, for a cost of $1,000 per product. The estimated total cost on U.S. Operators includes the cumulative costs associated with those airplanes affected by AD 2008-02-09. 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 removing Amendment 39-15339 (73 FR 3623, January 22, 2008), and adding the following new AD: **Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko”:** Docket No. FAA-2008-0216; Directorate Identifier 2008-CE-004-AD. Comments Due Date
(a)We must receive comments by March 27, 2008. Affected ADs
(b)This AD supersedes AD 2008-02-09, Amendment 39-15339. Applicability
(c)This AD applies to Model SZD-50-3 “Puchacz” gliders, all serial numbers up to and including B-2207, 503199327, 503A04001, 503A05002, and 503A05003, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 27: Flight Controls. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: On the pre-flight check of a SZD-50-3 glider, the Right Hand
(RH)wing airbrake was found impossible to retract. Investigation revealed that the occurrence was caused by a loose bolt of the “V” shape airbrake bellcrank, named hereafter intermediate control lever. The Left Hand
(LH)wing lever also presented, to a lesser extent, a loose bolt. This AD requires inspection of the LH and RH wing airbrake intermediate control levers for loose attaching bolts and subsequent repetitive inspections and corrective actions, as necessary. As a terminating action, replacement of the bolts and their associated washers is required. These actions are intended to address the identified unsafe condition so as to prevent loss of the airbrake control system which could result in an inadvertent forced landing with consequent sailplane damage and/or passenger injury. Requirements Retained From AD 2008-02-09
(f)Do the following unless already done:
(1)Within 10 days after February 1, 2008 (the effective date of AD 2008-02-09), inspect the left-hand
(LH)and the right-hand
(RH)wing airbrake intermediate control levers for loose attaching bolts following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007.
(2)Before further flight after the inspection required in paragraph (f)(1) of this AD, if any loose bolt is found, replace the split helical spring lock washers with tab washers and replace the M8x34 bolts with M8x32 bolts on both wings following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007. After doing this replacement, no further action is required by this AD. New Requirements of This AD: Actions and Compliance
(g)If no loose bolts are found in the initial inspection required in paragraph (f)(1) of this AD, repetitively inspect thereafter at intervals not to exceed 100 hours time-in-service
(TIS)or 12 months, whichever occurs first, until you are required to do the replacement in paragraph
(h)or
(i)of this AD. Do the inspection following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007.
(h)If any loose bolt is found during any inspection required in paragraph
(g)of this AD, before further flight replace the split helical spring lock washers with tab washers and replace the M8x34 bolts with M8x32 bolts on both wings following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007. After doing this replacement, no further action is required by this AD.
(i)Within the next 1,000 hours TIS after the effective date of this AD, replace the split helical spring lock washers with tab washers and replace the M8x34 bolts with M8x32 bolts on both wings following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007. After doing this replacement, no further action is required by this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(j)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Office, 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:* Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4130; *fax:*
(816)329-0409. 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 (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(k)Refer to MCAI European Aviation Safety Agency
(EASA)Emergency AD No. 2007-0275-E, dated October 24, 2007; and Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007, for related information. Issued in Kansas City, Missouri, on February 20, 2008. Patrick R. Mullen, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-3579 Filed 2-25-08; 8:45 am] BILLING CODE 4910-13-P FEDERAL TRADE COMMISSION 16 CFR Part 23 Guides for the Jewelry, Precious Metals, and Pewter Industries AGENCY: Federal Trade Commission (FTC or Commission). ACTION: Request for public comment on a proposed amendment to the platinum section of the Guides for the Jewelry, Precious Metals, and Pewter Industries. SUMMARY: The Commission is seeking comments on a proposed amendment to the platinum section of the FTC’s Guides for the Jewelry, Precious Metals, and Pewter Industries, 16 CFR part 23. The amendment provides guidance on how to mark or describe non-deceptively products containing at least 500 parts per thousand, but less than 850 parts per thousand, pure platinum and no other platinum group metals. The Commission is also seeking comment on whether the Guides for the Jewelry, Precious Metals, and Pewter Industries should be revised to provide guidance on how to mark or describe platinum-clad, filled, plated, or overlay products. DATES: Written comments must be received on or before May 27, 2008. ADDRESSES: Interested parties are invited to submit written comments. Comments should refer to “Jewelry Guides, Matter No. G711001” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered, with two copies, to the following address: Federal Trade Commission/Office of the Secretary, Room 135-H (Annex E), 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. If the comment contains any material for which confidential treatment is requested, it must be filed in paper (rather than electronic) form, and the first page of the document must be clearly labeled “Confidential.” 1 The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area, and at the Commission, is subject to delay due to heightened security precautions. 1 Commission Rule 4.2(d), 16 CFR 4.2 (d). The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. *See* Commission Rule 4.9(c), 16 CFR 4.9(c). Because U.S. postal mail is subject to delay due to heightened security measures, please consider submitting your comments in electronic form. Comments filed in electronic form (except comments containing any confidential material) should be submitted by clicking on the following: *https://secure.commentworks.com/ftc-jewelry* and following the instructions on the web-based form. To ensure that the Commission considers an electronic comment, you must file it on the web-based form at *https://secure.commentworks.com/ftc-jewelry* . If this Notice appears at *http://www.regulations.gov* , you may also file an electronic comment through that website. The Commission will consider all comments that regulations.gov forwards to it. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments will be available to the public on the FTC website, to the extent practicable, at *http://www.ftc.gov.* As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy at *http://www.ftc.gov/ftc/privacy.htm* . FOR FURTHER INFORMATION CONTACT: Robin Rosen Spector, Attorney,
(202)326-3740, or Janice Podoll Frankle, Attorney,
(202)326-3022, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. SUPPLEMENTARY INFORMATION: I. Introduction The Guides for the Jewelry, Precious Metals, and Pewter Industries (“Jewelry Guides” or “Guides”) address claims made about precious metals, diamonds, gemstones, and pearl products. 16 CFR part 23. The Jewelry Guides provide guidance on how to avoid making deceptive claims and, for certain products, discuss when disclosures should be made to avoid unfair or deceptive trade practices. The Commission is seeking public comment on Section 23.7 of the Jewelry Guides, which addresses claims for platinum products. Industry guides are administrative interpretations of the application of Section 5 of the FTC Act, 15 U.S.C. 45(a). The Commission issues industry guides to provide guidance for the public to conform with legal requirements. 16 CFR part 17. Failure to follow industry guides may result in corrective action under Section 5 of the FTC Act. In any such enforcement action, the Commission must prove that the act or practice at issue is unfair or deceptive. Platinum products marketed as “platinum” typically contain at least 85% pure platinum or contain at least 50% pure platinum in combination with other platinum group metals (“PGM”) that total 95% PGM. 2 During the last few years, some manufacturers have marketed products as “platinum” that contain more than 50%, but less than 85%, pure platinum, and no other PGM. 3 In a **Federal Register** notice published July 6, 2005 (“2005 FRN”), 4 the Commission sought comment on whether it should revise the platinum section of the Jewelry Guides to address such products. The comment period closed October 12, 2005. 2 The Platinum Group Metals include platinum, iridium, palladium, ruthenium, rhodium, and osmium. 3 We are aware that some companies are selling similar products but marketing them under names other than “platinum.” 4 70 FR 38834 (July 6, 2005). II. Background The platinum section of the Jewelry Guides contains a general statement regarding the deceptive use of the term “platinum” (and other PGM) and provides specific examples of misleading and non-violative uses of the term “platinum.” 5 Specifically, Section 7(a) of the Jewelry Guides states that it is “unfair or deceptive to use the words ‘platinum,’ ‘iridium,’ ‘palladium,’ ‘ruthenium,’ ‘rhodium,’ and ‘osmium,’ or any abbreviation to mark or describe all or part of an industry product if such marking or description misrepresents the product’s true composition.” 16 CFR 23.7(a). 5 On April 8, 1997 (62 FR 16669), the Commission published the current platinum section of the Jewelry Guides. The Commission revised this section as part of a comprehensive review of all of the provisions of the Guides. Section 7(b) provides examples of markings or descriptions for products containing platinum that may be misleading:
(1)Use of the word “Platinum” or any abbreviation, without qualification, to describe all or part of any industry product that is not composed throughout of 950 parts per thousand pure Platinum.
(2)Use of the word “Platinum” or any abbreviation accompanied by a number indicating the parts per thousand of pure Platinum contained in the product without mention of the number of parts per thousand of other PGM contained in the product, to describe all or part of an industry product that is not composed throughout of at least 850 parts per thousand pure platinum, for example, “600Plat.”
(3)Use of the word “Platinum” or any abbreviation thereof, to mark or describe any product that is not composed throughout of at least 500 parts per thousand pure Platinum. 16 CFR 23.7(b). Section 7(c) includes the following four examples of markings and descriptions that are not considered unfair or deceptive:
(1)The following abbreviations for each of the PGM may be used for quality marks on articles . . . [section lists the two-letter and four-letter abbreviations for the PGM].
(2)An industry product consisting of at least 950 parts per thousand pure Platinum may be marked or described as “Platinum.”
(3)An industry product consisting of 850 parts per thousand pure Platinum, 900 parts per thousand pure Platinum or 950 parts per thousand pure Platinum may be marked “Platinum,” provided that the Platinum marking is preceded by a number indicating the amount in parts per thousand of pure Platinum. . . . Thus, the following markings may be used: “950Pt.,” “950Plat.,” “900Pt.,” “900Plat.,” “850Pt.,” or “850Plat.”
(4)An industry product consisting of at least 950 parts per thousand PGM, and of at least 500 parts per thousand pure Platinum, may be marked “Platinum,” provided that the mark of each PGM constituent is preceded by a number indicating the amount in parts per thousand of each PGM, as for example, “600Pt.350Ir.,” 600Plat.350Irid.,” “550Pt.350Pd.50Ir.,” or “550Plat.350Pall.50Irid.” 16 CFR 23.7(c). On December 15, 2004, Karat Platinum, a jewelry manufacturer, requested an opinion from the FTC staff regarding the application of the Jewelry Guides to a product called “Karat Platinum” consisting of 585 parts per thousand (“ppt”) pure platinum and 415 ppt copper and cobalt (non-precious metals). 6 The request stated that the company’s reading of the Guides indicated that the platinum section did not prohibit marking or describing the product as “Platinum” and that the Guides did not address how to mark or describe an alloy with this composition other than to require that any representation be truthful and not misrepresent the product’s composition. 6 The request for a staff opinion and the staff’s response to that request can be found at *www.ftc.gov/os/statutes/jewelry/letters/karatplatinum.pdf* and *www.ftc.gov/os/statutes/jewelry/letters/karatplatinum002.pdf* , respectively. The staff posted this request on the FTC’s website on December 17, 2004 and invited the industry to provide comments by January 5, 2005. 7 The staff received sixteen comments from jewelry trade associations and retailers. 8 7 The staff later extended the comment period until January 10, 2005. 8 The Jewelers Vigilance Committee, Platinum Guild International, Manufacturing Jewelers & Suppliers of America, American Gem Society, Jewelers of America, Sonny’s On Fillmore, Kwiat, Inc., Cornell’s Jewelers, Michael Bondanza, Inc., PMI, Traditional Jewelers, Stanley Jewelers Gemologist, Davidson & Licht, Henne Jewelers, Johnson Matthey, and MJ Christensen submitted comments. On February 2, 2005, the staff responded to the request for an opinion stating: The Guides provide that, in order for a product to be marked or described as “platinum,” the product must contain a minimum of 500 ppt pure platinum. 16 CFR § 23.7(b)(3). In addition, the Guides provide that, if a product contains 500 ppt pure platinum but less than 850 ppt pure platinum, the marketer must disclose the amount in ppt of the remaining PGM in the product. 16 CFR § 23.7(b)(2). In our opinion, a literal reading of the Guides indicates that they do not address the marketing of the Karat Platinum alloy, except to the extent that they require a minimum of 500 ppt pure platinum. The provisions of Section 23.7 that address misuse of the word “platinum” do not discuss how to mark or describe an alloy that contains over 500 ppt pure platinum but no other PGM. The staff letter further explained that the marketing of the Karat Platinum alloy would be subject to Section 23.1 of the Guides, which contains a general statement on deception, as well as Section 5 of the FTC Act. 9 The letter stated that the staff considered “this alloy to be sufficiently different in composition from products consisting of platinum and other PGM to require clear and conspicuous disclosure of the differences.” The staff letter also stated that it did not appear “that simple stamping of the jewelry’s content ( *e.g.,* 585 Plat., 0 PGM) would be sufficient to alert consumers to the differences between the Karat Platinum alloy and platinum products containing other PGM.” 9 Section 5 of the FTC Act prohibits deceptive acts or practices, in or affecting commerce. 15 U.S.C. 45(a). Because of the public interest in this issue, on July 6, 2005, the Commission issued a **Federal Register** notice soliciting public comment regarding whether it should revise the Guides to address products composed of at least 500 ppt, but less than 850 ppt, pure platinum and no other PGM. The Commission received comments through the extended October 12, 2005 deadline. 10 10 70 FR 57807 (October 4, 2005). Additionally, the notice stated that the staff had received some inquiries regarding the application of the platinum section of the Guides to the marketing of platinum-clad or platinum-coated jewelry products. The platinum section of the Guides currently does not address platinum-clad, filled, plated, or overlay products. Other sections of the Guides, however, address gold and silver-plated jewelry products. 11 These sections generally advise that the plating must be of a sufficient thickness to ensure reasonable durability. The 2005 FRN, therefore, also sought comment regarding whether the Guides should provide guidance on how to mark or describe non-deceptively platinum-clad, filled, coated, or overlay jewelry products. The Commission received several comments with regard to this issue stating that there is a need for guidance for platinum-coated or plated products with respect to the thickness of the coating and the purity of the platinum. 12 Because these comments did not propose specific guidance, this **Federal Register** notice is seeking such guidance with regard to platinum-clad, filled, coated, and overlay jewelry products. 11 *See* 16 CFR 23.4 and 23.6 (addressing gold-plated, gold-filled, gold-overlay, gold-electroplated, and silver-plated jewelry products). 12 The Jewelers Vigilance Committee, Platinum Guild International, and a jeweler manufacturer (Sasha Primak) state that there is a need for specific guidance regarding the thickness of the coating or plate and the purity of the platinum employed to cover the base metal. III. Response to June 2005 Notice Seeking Comment on the Platinum Section of the Jewelry Guides A. Summary of Comments The FTC received 62 comments in response to the 2005 FRN. The FRN requested comments on two main issues—first, should the platinum section of the Guides be amended to address jewelry products containing at least 500 ppt, but less than 850 ppt, pure platinum and no other PGM (“platinum/base metal alloy”); second, if guidance is appropriate, what should the guidance provide. With regard to the first issue, the majority of the comments recommend that the Commission revise the Guides to include guidance regarding appropriate markings or descriptions for platinum/base metal alloy jewelry products. A joint comment from several jewelry trade associations 13 (hereinafter “JVC”) states that “[i]ndustry members universally believe that the Guides should be revised to address products that contain 500-850 ppt pure platinum and no other PGM. Since products employing this alloy (and others) have become available, clarity in marking and description standards for these products is needed.” 14 Similarly, a comment from Platinum Guild International (“PGI”) recommends that “the FTC amend the Platinum Guides and provide for an unambiguous and transparent standard.” 15 The majority of the comments from jewelry retailers support the JVC and PGI recommendations. 16 13 The associations include: Jewelers Vigilance Committee, Manufacturing Jewelers and Suppliers of America, Jewelers of America, and American Gem Society. 14 JVC comment at 3. 15 PGI comment at 24. 16 The following comments recommend that the Commission revise the Guides to include guidance regarding products contain 500 ppt, but less than 850 ppt, pure platinum and no other PGM: Kwiat; Albert Malky, Inc.; John A. Green (Lux Bond & Green); Loyd Stanley (Stanley Jewelers Gemologist); JCK Publishing; Traditional Jewelers; Cathy Carmendy, Inc.; Joan Mansbach (Mansbach Creative); M. Fabrikant & Sons; Renee Moskowitz (Harper’s Bazaar); Nessi Erkmenaoglu (Harper’s Bazaar); Stephen Walker (Walker Metalsmiths, Inc.); Lieberfarb, Inc.; Gemstones, Etc.; Saturn Jewels; Kaiser Time, Inc.; Coge Design Group; Day’s Jewelers; Stuller, Inc.; Harvey Rovinsky (Bernie Robbins Fine Jewelry); JCM Designs, Inc., d/b/a Judith Conway; Joseph Barnard (Bernie Robbins Fine Jewelry); Jeff Cooper, Inc.; Alexander Primak Jewelry, Inc.; Hearts on Fire Co.; Kirk Kara; Vogue Magazine; Allan Freilich (Freilich Jewelers, Inc.); Cede Schmuckdesign GmbH; Representative Henry A. Waxman (writing on behalf of Martin Katz, Ltd.); Grando, Inc.; Susan Eisen (Susan Eisen Fine Jewelry and Watches); Zoltan David (Zoltan David Precious Metal Art); and Brian Guymon. Karat Platinum’s comment takes a contrary position. Karat Platinum asserts that the Commission does not need to amend the Guides because the existing guidance in the platinum section, combined with the staff opinion letter issued in February 2005, 17 adequately inform marketers how to mark or describe such products. 17 *See supra* note 6. With regard to the second issue, commenters disagree about the guidance the Commission should provide for the marketing of platinum/base metal alloy jewelry. The JVC and PGI comments argue that the Commission should revise the Guides to prohibit marketers from marking or describing platinum/base metal alloy jewelry as “platinum” entirely. 18 JVC and PGI assert that platinum is not like gold, which requires mixing with an alloy to make it more durable for jewelry. 19 Platinum jewelry, JVC and PGI explain, has always been produced as nearly pure or combined with other PGM. JVC and PGI state that alloys with non-PGM do not share the same characteristics as pure platinum or platinum alloyed with PGM. 20 These comments assert that disclosure of the differences between the two types of alloys would be complicated and highly technical and likely engender significant consumer confusion and deception. 21 18 JVC comment at 4; PGI comment at 26. The following additional comments support this recommendation: Kwiat; Albert Malky, Inc.; John A. Green (Lux Bond & Green); C.F. Kisner, Inc.; Loyd Stanley (Stanley Jewelers Gemologist); JCK Publishing; Dana Sergenian; Traditional Jewelers; Cathy Carmendy, Inc.; Joan Mansbach (Mansbach Creative); M. Fabrikant & Sons; Renee Moskowitz (Harper’s Bazaar); Nessi Erkmenaoglu (Harper’s Bazaar); Robert Rowe (Lucky Magazine); Lieberfard, Inc.; Richard Krementz Gemstones; Saturn Jewels; Kaiser Time, Inc.; Hank Siegel (Hamilton Company); Vittorio Bassan (Stuart Moore, Ltd.); Coge Design Group; Day’s Jewelers; Stuller, Inc.; Harvey Rovinsky (Bernie Robbins Fine Jewelry); JCM Designs, Inc., d/b/a Judith Conway; Joseph Barnard (Bernie Robbins Fine Jewelry); Jeff Cooper, Inc.; Alexander Primak Jewelry, Inc.; Hearts on Fire Co.; Kirk Kara; Vogue Magazine; Allan Freilick (Freilich Jewelers, Inc.); Cede Schmuckdesign GmbH; Representative Henry A. Waxman (writing on behalf of Martin Katz, Ltd.); Grando, Inc.; Susan Eisen (Susan Eisen Fine Jewelry and Watches); Zoltan David (Zoltan David Precious Metal Art); Techform Advanced Casting Technology; Douglas Liebman (Douglas M. Liebman, Inc.); Brian Guymon; and Wayne Schenk. 19 JVC comment at 4; PGI comment at 16. 20 JVC comment at 7-8; PGI comment at 17-19. 21 JVC comment at 7; PGI comment at 15. As its primary support, PGI commissioned a study from Thomas J. Maronick, titled “Platinum Awareness Study: An Empirical Analysis of Consumers’ Perceptions of Platinum as an Option in Engagement Ring Settings” (“Maronick study”). The Maronick study polled 332 consumers, aged 21 through 34, who expect to become engaged in the next 12 months. PGI also submitted a 2003 marketing survey conducted by Hall & Partners (“Hall & Partners study”) that consisted of 600 online interviews of women (ages 18-34) and men (ages 25-34). Additionally, PGI submitted two tests evaluating platinum/base metal alloys. The first test, by Hoover & Strong, compared a product that contained 59.2% platinum, 36.59% copper, 3.9% cobalt and trace amounts of gold, silver, and nickel to three products, one containing 950 ppt pure platinum, one containing 950 ppt palladium, and one containing 14 karat white gold. The second test, by Daniel Ballard of Precious Metals West, evaluated the properties of three different 585 ppt pure platinum/base metal alloys. It does not appear that the PGI tests evaluated a product identical in composition to the Karat Platinum platinum/base metal alloy. The Maronick study concludes that consumers expect a high level of purity in a product marked “platinum.” The majority of consumers surveyed stated that they would expect a ring labeled “platinum” to contain 80% or more pure platinum. 22 The Maronick study also reports that if a ring has 40% or more non-PGM, over a third of the consumers surveyed would not expect the ring to be called “platinum.” 23 If the ring does not have all of the properties of pure platinum, more than 50% percent of consumers polled would not expect it to be called “platinum.” 24 The study further reports that even if a platinum product with 40% base metals shared all the properties of pure platinum products, 29% of consumers would not expect the product to be called “platinum.” 25 22 PGI Comment, Attachment A, at Table 3. 23 *Id.,* Table 7. 24 *Id.,* Table 11. 25 *Id.,* Table 8. In addition, according to the study, 88% of consumers polled felt it was at least somewhat important to know the properties of a product before purchase (two-thirds of these consumers felt it was very important). 26 The study further concludes that the properties typically associated with platinum are important to most consumers’ purchasing decisions. Specifically, between 60% and 90% of consumers polled responded that it was important to know a jewelry product’s weight (76.2%) and whether the product is durable (93%), scratch and tarnish resistant (89.8% and 90.5%, respectively), able to be resized (82.2%), and hypoallergenic (64.4%). 27 26 *Id.,* Table 12. 27 *Id.,* Table 13. To further support its position, PGI refers to the Hall & Partners survey, which reported that the majority of consumers polled associate rarity, strength, and purity with platinum jewelry. 28 These consumers also view platinum as superior to other metals. 29 28 PGI Comment, Attachment B, at 16, 28. 29 *Id.* at 15, 25. The PGI and JVC comments assert that, because consumers understand platinum jewelry to be a pure or nearly pure product, marking products with lower amounts of pure platinum and no other PGM as “platinum” is deceptive. 30 JVC and PGI explain that consumers believe that using the word “platinum” conveys that the product is pure and contains the qualities consumers expect from traditional platinum jewelry. 30 JVC comment at 7-8; PGI comment at 17-19. The PGI and JVC comments also assert that consumers do not understand numeric jewelry markings listing metal content, such as 585Pt/0PGM or 585Pt./415 Co.Cu., or the karat systems used for gold markings. 31 The Maronick study asked consumers whether they knew what 585 plat; 0 pgm meant and only 5.2% responded yes. 32 Of that 5.2%, however, only two consumers (less than 1% of the total consumers surveyed) correctly described the marking. The Maronick study also probed whether consumers understood a platinum/base metal alloy marking, “585 plat; 415 CO/CU.” Only 7.5% stated they knew what this marking meant, but only 6.9% of those consumers actually understood that the marking described the proportion of platinum and other metals in the jewelry product. 33 Similarly, with respect to gold markings, the Maronick study reports that although 82.2% of respondents indicated they knew what 14 karat gold meant, only 16% of those respondents accurately indicated that it meant 58-59% gold. 34 31 PGI comment, Attachment A, Table 14. JVC notes that consumers are not experts in the Periodic Table of Elements and likely would not even know that “Co” is the abbreviation for copper. JVC comment at 7. 32 PGI comment, Attachment A, at 25. 33 *Id.* at 26. 34 *Id.* at 24. In addition, the PGI product testing shows that certain platinum/base metal alloys are inferior to platinum/other PGM alloys in terms of wear and oxidation resistance, weight loss, and ability to withstand a welding/soldering procedure for sizing. 35 The testing further shows that the platinum/base metal alloys in these tests may not be hypoallergenic. 36 It is not clear from the testing PGI submitted that all platinum jewelry products with less than 850 ppt pure platinum alloyed with base metals would yield the same test results. These tests evaluated products with 58.5-59.2% pure platinum. The record does not address whether products that contain a higher percentage of platinum, or the same percentage of platinum alloyed with different base metals, would produce different test results. 35 PGI comment, Attachment C. 36 PGI comment, Attachment D. Based on their tests, JVC and PGI assert that, to avoid deception, marketers would need to disclose how platinum/base metal alloy jewelry products differ from traditional platinum jewelry in durability, strength, hypoallergenic properties, weight, purity, scratch resistance, tarnishability, and ability of jewelers to repair or resize the product. PGI and JVC, however, contend that appropriate and prominent disclosures addressing such extensive information are not feasible at the retail level. 37 Accordingly, JVC and PGI assert that given consumers’ perceptions of platinum jewelry, consumer confusion regarding jewelry markings, and their testing data, the appropriate course to avoid deception is to amend the Guides to state that products that do not contain at least 50% platinum and a combination of at least 950 ppt pure platinum and other PGM cannot be marked or described “platinum.” 38 37 PGI contends that the Hall & Partners study supports this assertion. That study showed that only 25-30% of those people surveyed responded that sales people explained the differences between the different metals (gold, white gold, and platinum), and only 22-24% of consumers surveyed believed that sales people helped them to understand the differences. PGI comment, Attachment B. 38 JVC comment at 4; PGI comment at 26. JVC and PGI further submit that state laws in California, New York, New Jersey, Illinois, and Wisconsin do not permit platinum/base metal alloy jewelry products to be marked or described as “platinum.” These state laws are based on historical Department of Commerce Voluntary Product Standards (“VPS”). JVC explains that the five state statutes require products to contain 950 ppt pure platinum (with solder) or 985 ppt (without solder) to be marked or marketed as “platinum” without qualification. 39 These statutes permit qualified platinum markings for products with at least 500 ppt pure platinum and 950 ppt total PGM. 40 39 PGI comment at 3, 9 & n.33; JVC comment at 2 & n.2. Both PGI and JVC cite Cal. Bus. & Prof. Code §§ 22120-22132; Ill. Comp. Stat. §§ 395/0.01-395/0.11 (Platinum Sales Act); N.J. Stat. § 51:6 (Platinum and Alloys); N.Y. Gen. Bus. §§ 230-238 (Platinum Stamping); Wis. Stat. § 134.33 (Platinum Stamping). 40 The statutes require that marketers must disclose the product composition indicating the number in ppt of each metal to qualify the platinum marking. *See* Cal. Bus. & Prof. Code §§ 22120-22132; Ill. Comp. Stat. §§ 395/0.01-395/0.11 (Platinum Sales Act); N.J. Stat. § 51:6 (Platinum and Alloys); N.Y. Gen. Bus. §§ 230-238 (Platinum Stamping); Wis. Stat. § 134.33 (Platinum Stamping). Finally, JVC and PGI state that the International Standards Organization (“ISO”) standard for platinum markings also precludes marking or describing products as platinum unless they contain at least 850 ppt pure platinum. 41 JVC and PGI contend, that because many countries have adopted ISO standards, platinum/base metal alloy jewelry generally could not be marked as “platinum” if sold abroad. 42 41 JVC comment at 8 & n.4; PGI comment at 20 (both citing ISO 9202:1991(E), “Jewellery - Fineness of precious metal alloys”). PGI explained that the ISO standard provides for three values in ppt for platinum jewelry: 950, 900, and 850. *Id.* 42 JVC comment at 8; PGI comment at 20. Karat Platinum disagrees with JVC’s and PGI’s positions on virtually every point. First, Karat Platinum states, that if the Commission determines that revising the Guides is appropriate, the revised Guides should simply codify the language in the February 2005 staff opinion letter. Karat Platinum further asserts that its platinum/base metal alloy does share almost all of the same qualities as traditional platinum products. 43 It submitted testing of its alloy showing that it is superior to traditional platinum products in terms of strength, hardness, and casting ability, and that its ability to resist corrosion is equivalent to other platinum products. The only attribute of potential difference, according to Karat Platinum’s study, is density—its platinum/base metal alloy is less dense. 44 Karat Platinum’s test did not evaluate whether its alloy is hypoallergenic. 43 Karat Platinum comment at 2. 44 *Id.* at 3 and Exhibit A. Karat Platinum further explains that, consistent with the FTC staff’s advice, it will disclose its product’s full composition, which will give consumers complete information about the content of the product and promote it as a “new product.” 45 Karat Platinum did not submit any consumer survey evidence evaluating how consumers interpret its proposed marketing. It asserts, however, that consumers will understand that its product contains less platinum than traditional platinum jewelry because the description will put consumers on notice about the amount of platinum in the product and the “new” representations will alert consumers that it is different. 46 Karat Platinum asserts that consumers do understand karat markings. Karat Platinum argues that consumers know that gold has different levels of purity and is alloyed with different metals, and will similarly understand that platinum jewelry is not pure and is alloyed with different metals. 47 45 *Id.* at 4. 46 *Id.* at 5. 47 *Id.* at 6-7. Prohibiting marketers from using the word “platinum” because a product contains less than 85% platinum and no other PGM will not benefit consumers, according to Karat Platinum. This prohibition, Karat Platinum contends, will deprive consumers of truthful and accurate information about the product and the opportunity to own more affordable, high quality platinum jewelry. 48 48 *Id.* at 1. B. Analysis of the Comments The record supports the following conclusions:
(1)a substantial number of consumers believe products marked or described as “platinum” are pure and possess certain desirable qualities;
(2)a substantial number of consumers generally would not expect platinum/base metal alloy jewelry to be marked or described “platinum”;
(3)many consumers do not fully understand numeric jewelry markings and chemical symbols and may find them confusing;
(4)testing data in the record suggests that some platinum/base metal alloys do not possess all of the qualities of higher purity platinum jewelry that consumers expect; and
(5)the consumer perception and product testing data support revising the Guides to address the marketing of platinum/base metal alloys, as explained below. 1. Consumer Perceptions Regarding the Use of the Term “Platinum” The survey evidence PGI submitted, particularly the Maronick study, provides insight into consumer perceptions regarding the use of the term “platinum” to describe jewelry. The Maronick study presents evidence that many consumers understand that products marked or described as “platinum” are pure or nearly pure and that certain qualities or attributes typically associated with platinum are important to a substantial number of consumers. These qualities or attributes include the product’s weight, durability, scratch and tarnish resistance, and whether it is hypoallergenic and can be resized. 2. Consumer Expectations Regarding Products Described as “Platinum” The Maronick study further found that a majority of consumers would not expect platinum/base metal alloys containing more than 40% base metal to be called “platinum,” particularly if they do not possess the qualities and attributes present in higher purity platinum or platinum/other PGM products, such as those containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM. These findings indicate that many consumers have high expectations regarding products described as platinum, and draw the conclusion that such products possess certain qualities or attributes that make them superior to products consisting of other metals (e.g., superior strength, durability, and resistance to scratching and tarnishing). 3. Consumer Understanding of Numeric Jewelry Markings The Maronick study also provides evidence that many consumers do not fully understand numeric jewelry markings, particularly those using chemical symbols, such as 585 Pt./415 Co.Cu. The Maronick study, however, does not address what consumers take away from these numeric and symbolic markings for platinum jewelry products. The study asked consumers: “Do you know what ‘585plat, 415 CO/CU’ means?” If consumers said no, the study did not ask follow up questions probing their actual understanding. 49 While consumers clearly could not identify the metals represented by the markings, it is not clear whether they understood that the product contained platinum and two other metals or that it contained a lower percentage of platinum than products without the markings. In a potentially analogous situation, the Maronick study showed that, even though many consumers cannot define the term “14 karat gold” accurately, the term does convey important information. Specifically, consumers understand that “14 karat” represents the amount of gold in the product, and that 18 karat gold jewelry contains more gold than 14 karat gold jewelry. 50 49 PGI Comment, Attachment A, at 42. 50 *Id.* at 24. While numerical and chemical markings may provide some useful information to consumers, the record indicates that even using full names and no chemical abbreviations to disclose the composition of platinum/base metal alloys may be inadequate. Specifically, the Maronick study shows that many consumers expect products described as platinum to have certain qualities and attributes, even if they consist in part of non-platinum group metals. Disclosure using full chemical names, therefore, might not provide adequate notice that the product may differ from products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM, with respect to one or more qualities or attributes important to consumers. 4. Testing Data of Platinum/Base Metal Alloys It is, therefore, important to determine whether platinum/base metal alloys have the same properties as products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM. The record provides a useful, albeit inconclusive, answer. Specifically, the record suggests that at least some platinum/base metal alloys do not possess all of the qualities of products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM. On one hand, PGI’s testing indicates that certain platinum/base metal alloys are inferior to higher purity platinum jewelry in terms of wear and oxidation resistance, as well as weight loss, and that they cannot be resized using certain procedures. 51 On the other hand, Karat Platinum’s testing suggests that its alloy is superior or equivalent to higher purity platinum jewelry in several respects. Karat Platinum’s testing, however, showed that its alloy is less dense than higher purity platinum jewelry, and it did not test whether the alloy is hypoallergenic. 51 PGI did not test Karat Platinum’s alloy. Accordingly, the record is incomplete regarding the extent to which platinum/base metal alloys differ from higher purity platinum or platinum/other PGM jewelry with respect to those qualities material to consumers’ purchasing decisions. The record is also incomplete regarding the extent to which the qualities and attributes of jewelry differ depending on the percentage of platinum and the type and percentage of base metal in the jewelry. The record does indicate, however, that at least some platinum/base metal alloys likely do not have all, or substantially all, of the qualities or attributes that consumers view as important in purer platinum products, such as those containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM. 5. The Record Supports Amending the Platinum Section of the Guides The record on consumer perception and the product testing described above supports amending the Guides to address the marketing of platinum/base metal alloys. In particular, the record supports revising the Guides to state that marketers may describe platinum/base metal alloys as platinum, provided they adequately qualify the claim. The platinum section of the FTC’s Jewelry Guides currently provides that the unqualified use of the word “platinum” is deceptive for products that do not contain 950 ppt or more pure platinum. It also provides guidance on how marketers may qualify the word to describe certain products containing less than 950 ppt pure platinum. The Guides, however, do not address claims for products containing at least 500 ppt pure platinum alloyed with base metals. The JVC, PGI, and numerous retailers recommend that the FTC amend the platinum section of the Guides to state that even the qualified use of the word “platinum” to describe these products would deceive consumers. 52 Based on the current record, however, the Commission cannot conclude that the properly qualified use of the word platinum to describe every platinum/base metal alloy would materially mislead consumers. Accordingly, we do not propose to amend the Guides in this manner. 52 JVC and PGI acknowledge that a qualified use of the word “platinum” could, in theory, address consumer confusion or deception stemming from the use of the term “platinum” to describe platinum/base metal alloys. Yet, JVC and PGI assert that it would be impracticable and likely ineffective to make the lengthy, detailed disclosures that they believe would be needed to prevent deception. The weight of the evidence leads us to conclude that there is a high probability of consumer deception if marketers describe platinum/base metal alloys as “platinum” qualified only with a disclosure of the product’s metal content using numbers and chemical abbreviations. 53 As discussed above, the record indicates that many consumers have pre-existing beliefs about the qualities of products marked or described as “platinum,” and at least some platinum/base metal alloys may not meet their expectations. The record also provides evidence that numeric markings and chemical abbreviations confuse many consumers. Thus, describing a platinum/base metal alloy as platinum and disclosing its metal content using numbers and chemical abbreviations would most likely fail to inform many consumers that the product differs from traditional platinum products with respect to the product’s purity as well as the qualities and attributes important to consumers. The record, therefore, demonstrates that marketers selling platinum/base metal alloys should disclose more detailed information to prevent deception. 53 Karat Platinum’s suggestion that it will also market the product as “new,” which, it contends, conveys that the product differs from traditional platinum products and should prompt consumers to seek information about the product, is, at best, a temporary solution. Karat Platinum presumably will not market this product as “new” forever. In any event, a mere representation that a product is new would not disclose how it differs from products containing a higher percentage of platinum. To address potential consumer confusion regarding numbers and chemical abbreviations, the Commission proposes amending the Guides to state that marketers of platinum/base metal alloys described as platinum should expressly disclose that the product contains platinum and other non-platinum group metals and also separately disclose the product’s full composition, by name and not abbreviation, and the percentage of each other metal in the product. 54 By disclosing the composition of the jewelry in this manner, marketers would alert consumers to the presence of particular metals and help prevent deception regarding the purity of products described as platinum. 54 This disclosure provides for the use of percentages rather than ppt because the survey evidence revealed that ppt markings, like numbers and chemical abbreviations, confuse consumers. The other provisions of the platinum section of the Guides provide for compositional disclosures using ppt. As discussed below, the proposed amendment would allow for the physical stamping of platinum/base metal alloy jewelry using ppt and chemical abbreviations. It is only the full composition disclosure that will differ in that it provides for the use of percentages. For the reasons noted above, a full name composition disclosure should alleviate the confusion regarding a platinum/base metal alloy product’s purity but would not necessarily alleviate all confusion regarding the product’s other properties. The record demonstrates that use of the word “platinum,” even in conjunction with a compositional disclosure, conveys important quality information to consumers ( *i.e.,* that the product possesses qualities typically associated with platinum). As such, the record indicates a need for additional disclosure to prevent deception. Therefore, the proposed Guides state that marketers should expressly disclose that a platinum/base metal alloy product may not have all the properties that consumers associate with higher purity platinum/other PGM products. The record does not address whether the term Karat Platinum or other qualifying moniker, either in conjunction with a compositional disclosure or without one, might imply that the product either differs in some respects from other products containing platinum or is comparable to other such products in material respects. Thus, we do not have a basis to conclude that use of the term Karat Platinum or other qualifying moniker will sufficiently alert consumers to the potential differences between platinum/base metal alloy jewelry products and higher purity platinum/other PGM products with respect to the properties material to consumers. As noted earlier, the record does not include sufficient evidence for the Commission to identify which platinum/base metal alloys differ from products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM, and with respect to which attributes. Some platinum/base metal alloys, however, may be equivalent to products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM, with respect to some, or all, of the attributes important to consumers depending upon the percentage of platinum and both the percentages and types of base metals. For this reason, the proposed amendment provides that a marketer need not disclose that its product may not have the same attributes or properties as products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM, if the marketer has competent and reliable scientific evidence that, with respect to all attributes or properties material to consumers ( *e.g.,* the product’s durability, hypoallergenicity, resistance to tarnishing and scratching, and the ability to resize or repair the product), such product is equivalent to products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM. C. Harmonization with State Law and International Standards The record includes evidence that laws in at least five states and an ISO standard that some countries have adopted do not permit platinum/base metal alloy products to be marked or described as “platinum.” Thus, JVC and PGI contend that, if the FTC issues guidance allowing such products to be marked as “platinum,” our Guides will conflict with state law and international standards. Although the Commission generally prefers to harmonize its guidance with state and international laws and standards, Commission Guides must be based upon the Section 5 deception or unfairness standard. 55 55 The Trade Agreements Act of 1979 states that no federal agency “may engage in standards-related activity that creates unnecessary obstacles to the foreign commerce of the United States and that federal agencies must, in developing standards take into consideration international standards and shall, if appropriate, base the standards on international standards.” 19 U.S.C. § 2532(2)(A). The term “standard” in the Act includes guidelines that are not mandatory, such as the Jewelry Guides. The Act provides, however, that “the prevention of deceptive practices” is an area where basing a standard on an international standard “may not be appropriate.” *Id.* at § 2532(2)(B)(i)(II). The state laws and the ISO standard discussed above are not based upon a deception or unfairness standard. As explained above, the state laws that JVC and PGI cite are based upon VPS that the Department of Commerce promulgated 75 years ago. 56 VPS are developed through general consensus among affected parties. 57 Similarly, ISO standards are technical industry standards developed through a consensus-building process. 58 Accordingly, although harmonization with state laws and international standards is typically favored, where, as here, our analysis of consumer perception data reveals that there is insufficient evidence that a particular claim ( *i.e.,* a qualified platinum representation) is deceptive, the Commission cannot promulgate a guide stating that marketers should not make the representation solely to achieve harmony. 56 61 FR 27185 n.99 (May 30, 1996) (explaining that the Commerce standards were promulgated in 1933). 57 *See* 15 C.F.R. Part 10.3 (setting forth the procedures for the development of VPS). The states’statutes adopted the VPS verbatim many years ago ( *e.g.,* California in 1941; New York in 1965; Wisconsin in 1979). Even if the states conducted an independent deception analysis when they adopted these standards, it is likely that consumer perception regarding platinum representations and the marketplace has changed over time. Indeed, it does not appear that any platinum/base metal alloy jewelry products marketed as platinum existed when the states adopted these standards. In addition, these state statutes already conflict with the current platinum Guides. The Commission revised the Guides in 1997 to harmonize the treatment of platinum products containing 850, 900, or 950 ppt pure platinum with the ISO standard and to simplify the Commission’s guidance for products containing less than 850 ppt, but more than 500 ppt, pure platinum and 950 ppt PGM. The state statutes mirror the FTC’s pre-1997 Guides for these categories of platinum products. For example, the state statutes provide that products containing at least 750 ppt, but less than 950 ppt pure platinum (with solder; 985 ppt without solder) and 950 ppt PGM, may be marked platinum provided the name or abbreviation of the other PGM that predominates precedes the word platinum ( *e.g.,* Irid-Plat.). *See, e.g.,* N.Y. Gen. Bus. Law § 234(b). Consistent with the ISO standard, the current Guides provide that products containing 850 ppt or more pure platinum may be “platinum” provided the name or abbreviation is preceded with the amount in ppt of the platinum in the product. For products containing at least 750 ppt, but less than 850 ppt, pure platinum and 950 ppt other PGM, the Guides provide that marketers should disclose both the amount in ppt of pure platinum in the product and other PGM. 16 C.F.R. §§ 23.7(c)(3-4). 58 *See www.iso.org/iso/standards_development/process_and_procedures/ how_are_standards_developed.htm* (explaining that ISO standards are developed through a consensus-building phase that takes into account the views of manufacturers, vendors and users, consumer groups, testing laboratories, engineering professionals, and research organizations). IV. Proposed Amendment to Platinum Section of the Jewelry Guides A. Proposed Amendment Based on the analysis above, the Commission seeks comment on a proposed amendment to Section 23.7(b) of the Jewelry Guides. The proposed amendment would allow marketers to physically mark or stamp platinum/base metal alloy jewelry with a standard platinum jewelry marking that lists the product’s chemical composition ( *e.g.,* 585 Pt./415 Co.Cu.), but also states that when making any other representation that the product contains platinum they should disclose additional information. This proposed amendment states that, to avoid misleading consumers, marketers should clearly and conspicuously disclose, immediately following the name or description of the product:
(i)that the product contains platinum and other non-platinum group metals; 59
(ii)the product’s full composition, by name and not abbreviation, and the percentage of each metal; 60 and
(iii)that the product may not have the same attributes or properties as products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM. 61 59 The proposed Guide provides for this disclosure for products that contain at least 500 parts per thousand, but less than 850 parts per thousand, pure Platinum, and do not contain at least 950 parts per thousand PGM. As such the provision applies to platinum/base metal alloys but would also apply to a product that contains platinum, base metals, and other platinum group metals— *e.g.,* 58.5% Platinum, 35% Copper/Cobalt, 10% Iridium. The second disclosure, providing for a full name compositional disclosure, would inform consumers of the presence of the other platinum group metals in the product. Nothing in the Guide, however, would prohibit marketers from also truthfully disclosing in this first disclosure that the product contains other platinum group metals ( *e.g.,* this product contains platinum, other platinum group metals and other non-platinum group metals). 60 The proposed Guide provides that when using percentages to qualify platinum representations, marketers should convert the amount in parts per thousand to a percentage that is accurate to the first decimal place ( *e.g.,* 58.5% Platinum, 41.5% Copper/Cobalt). 61 By making the second of these disclosures, a marketer would not satisfy the requirements of the first disclosure. Specifically, a consumer who received the composition disclosure would only understand that the alloy contained non-platinum group metals if he or she knew which metals comprised that group. The record, however, while not specifically addressing this issue, tends to demonstrate that many consumers do not have a clear understanding of metal alloys. Therefore, the first and second disclosures are necessary. As noted above, the record indicates that a substantial percentage of consumers believe products described as “platinum” are pure. The first proposed disclosure will inform consumers directly that the product is not pure. In addition, by stating that marketers should include the full name, not the abbreviation, of each metal, the second disclosure will alleviate consumer confusion regarding numerical, abbreviated descriptions of jewelry content. The third proposed disclosure is designed to avert deception regarding quality information conveyed by the term platinum that the record demonstrates likely will not be addressed by a content disclosure alone. However, because some platinum/base alloy products may possess all the attributes or qualities of platinum jewelry that are important to consumers, the proposed amendment contains an additional provision. That provision provides that a marketer does not need to make this third disclosure if the marketer has competent and reliable scientific evidence that, with respect to all attributes or properties material to consumers ( *e.g.,* the product’s durability, hypoallergenicity, resistance to tarnishing and scratching, and the ability to resize or repair the product), such product is equivalent to products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt PGM. The proposed amendment does not contain a definitive listing of the attributes or properties material to consumers, nor does it specify the type of scientific substantiation necessary to avoid making the disclosure. Because the attributes or properties material to consumers and the nature of the substantiation may change over time, the Commission believes that flexible guidance is appropriate and that members of the jewelry industry are well-positioned to comply with such guidance. The Commission seeks comment on whether such guidance is sufficiently precise for marketers to avoid deceiving consumers regarding platinum/base metal alloys. B. Text of the Proposed Amendment The Commission proposes adding Section 23.7(b)(4) to the Jewelry Guides as an additional example of markings or descriptions of platinum that may be misleading. The text of the proposed amendment of Section 23.7(b)(4) is as follows:
(4)Use of the word “Platinum,” or any abbreviation accompanied by a number or percentage indicating the parts per thousand of pure Platinum contained in the product, to describe all or part of an industry product that contains at least 500 parts per thousand, but less than 850 parts per thousand, pure Platinum, and does not contain at least 950 parts per thousand PGM (for example, “585 Plat.”) without a clear and conspicuous disclosure, immediately following the name or description of such product:
(i)that the product contains Platinum and other non-platinum group metals;
(ii)the full composition of the product (by name and not abbreviation) and percentage of each metal; and
(iii)that the product may not have the same attributes or properties as products containing at least 850 parts per thousand pure Platinum, or at least 500 parts per thousand pure Platinum and at least 950 parts per thousand PGM. *Provided, however,* that the marketer need not make disclosure 23.7(b)(4)(iii), above, if the marketer has competent and reliable scientific evidence that, with respect to all attributes or properties material to consumers ( *e.g.,* the product’s durability, hypoallergenicity, resistance to tarnishing and scratching, and the ability to resize or repair the product), such product is equivalent to products containing at least 850 parts per thousand pure Platinum, or at least 500 parts per thousand pure Platinum and at least 950 parts per thousand PGM. *Provided, further,* a product that contains at least 500 parts per thousand, but less than 850 parts per thousand, pure Platinum, and does not contain at least 950 parts per thousand PGM, may be marked or stamped accurately, with a quality marking on the article, using parts per thousand and standard chemical abbreviations ( *e.g.,* 585 Pt., 415 Co.Cu.). Note to § 23.7(b)(4): When using percentages to qualify platinum representations, marketers should convert the amount in parts per thousand to a percentage that is accurate to the first decimal place ( *e.g.,* 58.5% Platinum, 41.5% Copper/Cobalt). V. Request for Public Comment The Commission seeks public comment on a proposed amendment to the platinum section of the Jewelry Guides that provides guidance on how to mark or describe non-deceptively products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM. In addition, the Commission seeks public comment on whether it should revise the Guides to provide guidance on how to mark or describe platinum-clad, filled, plated, or overlay products. 62 62 *See* 16 CFR 23.4 and 23.6 (addressing gold-plated, gold-filled, gold-overlay, gold-electroplated, and silver-plated jewelry products). The Commission requests written responses to any or all of the following questions. The Commission requests that responses be as specific as possible, including a reference to the question being answered, and a reference to empirical data or other evidence wherever available and appropriate. 1. Should the Commission amend the platinum section of the Jewelry Guides by adopting the proposed amendment? a. If so, why? Please provide any evidence that supports your answer. b. If not, why not? Please provide any evidence that supports your answer. 2. Should the Commission revise the language in the proposed amendment to provide for additional disclosures to ensure that consumers are not misled, for example, by including additional, more detailed disclosures regarding how products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM, differ from traditional platinum products 63 in terms of purity and rarity? 63 “Traditional Platinum Products” referred to in these questions means products containing at least 850 ppt pure platinum, or at least 500 ppt pure platinum and at least 950 ppt total PGM. a. If so, how and why? b. What evidence supports making your proposed revision(s)? Please provide this evidence and explain why any such revision is necessary to ensure that consumers are not misled. c. If not, why not? Please provide any evidence that supports your answer. 3. Should the Commission revise the language in the proposed amendment to state that the disclosures should be physically attached to the jewelry product? a. If so, how and why? b. What evidence supports making your proposed revision(s)? Please provide this evidence and explain why any such revision is necessary to ensure that consumers are not misled. c. If not, why not? Please provide any evidence that supports your answer. 4. Should the Commission revise the language in the proposed amendment to provide that marketers need only make the third disclosure that the platinum/base metal alloy may not have the same attributes or properties as traditional platinum products, if they represent expressly or by implication that such product has one or more of the same attributes or properties as traditional platinum products ( *i.e.,* a triggered disclosure)? a. If so, how and why? b. What evidence supports making your proposed revision(s)? Please provide this evidence and explain why any such revision is necessary to ensure that consumers are not misled. c. Is there any evidence indicating that the disclosure of the product’s full composition will sufficiently alert consumers to the differences between platinum/base metal alloys and traditional platinum products containing a higher percentage of platinum or other PGM? If so, please provide this evidence. d. If not, why not? Please provide any evidence that supports your answer. 5. Is there a specific word or phrase that could be used to describe products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM, that would adequately convey that such products differ from traditional platinum products? a. If so, please identify such word or phrase and provide evidence demonstrating that it adequately conveys the differences between the products. b. Would the term “platinum alloy,” if used to describe products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM, adequately convey that such products differ from traditional platinum products? Please provide any evidence that supports your answer. c. Should the Commission revise the language in the proposed amendment to address the use of such a specific word or phrase to describe products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM?
(1)If so, how and why?
(2)What evidence supports making your proposed revision(s)? Please provide this evidence and explain why such language adequately conveys the differences between the products.
(3)If not, why not? Please provide any evidence that supports your answer. 6. What, if any, additional disclosures are necessary to explain that a product that contains at least 500 ppt, but less than 850 ppt, pure platinum, and that does not contain at least 950 parts per thousand PGM, may not have the same attributes as traditional platinum products? a. Should the Commission revise the language in the proposed amendment to require any such additional disclosures? How and why? b. What evidence supports making your proposed revision(s)? Please provide this evidence. c. If such disclosures are necessary, please explain the manner and form in which marketers should make them to ensure that they are clear and conspicuous to consumers. 7. The proposed amendment provides that marketers disclose the full composition of the platinum/base metal alloy using full, unabbreviated names and the percentage of each metal. Other provisions in the platinum sections of the Jewelry Guides provide for compositional disclosures using parts per thousand. Will the use of percentages for this disclosure confuse consumers? a. If so, please provide any evidence that supports your answer. b. If evidence does indicate that percentage disclosures will confuse consumers because the other platinum sections use parts per thousand, is there other evidence that indicates that the benefits of a percentage disclosure will outweigh the confusion? c. If not, why not? Please provide any evidence that supports your answer. 8. What evidence, not submitted in response to the Commission’s earlier request for comment, indicates what specific properties are important to consumers when purchasing a product marked or described as “platinum”? If there is such evidence, please provide this evidence. 9. Is there evidence indicating the meaning consumers take from qualified platinum markings using abbreviations and chemical symbols ( *e.g.,* 585 Pt., 415 Co.Cu.)? If so, please provide this evidence. 10. Is there evidence indicating the meaning consumers take from qualified platinum markings using full-name compositional disclosures ( *e.g.,* 58.5% Platinum, 41.5% Copper/Cobalt)? If so, please provide this evidence. 11. Is there evidence indicating whether consumers think that products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM, share the qualities, such as durability, luster, density, scratch and tarnish resistance, ability to resize or repair, and hypoallergenicity, that are associated with traditional platinum products? If so, please provide this evidence. 12. Is there evidence indicating what qualities consumers associate with non-platinum PGM products (products made with platinum group metals other than platinum, *e.g.,* palladium, iridium), such as durability, luster, density, scratch and tarnish resistance, ability to resize and repair, and hypoallergenicity, that are associated with traditional platinum products? If so, please provide this evidence. 13. What constitutes “competent and reliable scientific evidence” to substantiate representations regarding the qualities material to consumers, such as the durability, luster, density, scratch and tarnish resistance, ability to resize and repair, and hypoallergenicity of traditional platinum products and products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM? Please provide any evidence that supports your answer. 14. Describe in detail the scientific tests used to determine or substantiate representations regarding the qualities material to consumers, such as the durability, luster, density, scratch and tarnish resistance, ability to resize and repair, and hypoallergenicity, of traditional platinum products and products that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM. Please provide any evidence that supports your answer. 15. Describe in detail any differences between alloys that contain at least 500 ppt, but less than 850 ppt, pure platinum, and that do not contain at least 950 parts per thousand PGM, and traditional platinum products in terms of the qualities material to consumers, such as durability, luster, density, scratch and tarnish resistance, ability to resize and repair, and hypoallergenicity. Please explain the basis for your answer and provide evidence that supports your answer. 16. Is there evidence indicating what the terms “Karat Platinum,” “Platifina,” “Platinum V,” and “Platinum 5” mean to consumers? If so, please provide this evidence. 17. Do consumers associate the terms “Karat Platinum,” “Platifina,” “Platinum V,” and “Platinum 5” with the qualities, such as durability, luster, density, scratch and tarnish resistance, ability to resize and repair, and hypoallergenicity, that are associated with traditional platinum products? If so, please provide any evidence that supports your answer. 18. Is there evidence indicating what the phrase “other non-platinum group metals” means to consumers? If so, please provide this evidence. 19. Should the Commission amend the platinum section of the Jewelry Guides to address other products that contain platinum, such as platinum-clad, filled, plated, coated, or overlay products, that are not currently addressed in the section? a. If so, how and why? b. What evidence supports making your proposed revision(s)? Please provide this evidence and explain why any such revision is necessary to ensure that consumers are not misled including specific guidance as to the recommended thickness of the filling, plating, or overlay of such platinum products. c. If not, why not? VI. Communications by Outside Parties to Commissioners or Their Advisors Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding from any outside party to any Commissioner or Commissioner’s advisor will be placed on the public record. *See* 16 CFR 1.26(b)(4). All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before May 27, 2008. By direction of the Commission. Donald S. Clark Secretary [FR Doc. E8-3594 Filed 2-25-08: 8:45 am] BILLING CODE 6750-01-S NATIONAL LABOR RELATIONS BOARD 29 CFR Parts 101 and 102 Joint Petitions for Certification Consenting to an Election AGENCY: National Labor Relations Board
(NLRB)ACTION: Notice of Proposed Rulemaking. SUMMARY: As part of its ongoing efforts to address the needs of employers, individuals, and labor organizations and to further the fundamental purposes of the National Labor Relations Act, the National Labor Relations Board
(NLRB)is proposing to adopt a rule that would authorize a petition for a prompt NLRB election to be jointly filed by a labor organization and an employer. The following proposal is offered to provide initial focus for public comment. The public is nevertheless encouraged to suggest alternatives. DATES: All written comments must be received on or before March 27, 2008. ADDRESSES: All written comments should be sent to the Office of the Executive Secretary, National Labor Relations Board, 1099 14th Street, NW., Room 11600, Washington, DC 20570-0001. The comments should be filed in eight copies, double spaced on 8 1/2 -by-11 inch paper and shall be printed or otherwise legibly duplicated. FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive Secretary, Telephone
(202)273-1067, e-mail address *Lester.Heltzer@nlrb.gov.* SUPPLEMENTARY INFORMATION: Section 102.62 of the Board's Rules and Regulations currently provides three kinds of “consent” election procedures. Under § 102.62(a) and (b), the parties must stipulate with respect to jurisdictional facts, labor organization status, appropriate unit description, and classifications of employees included and excluded. The parties must also agree to the time, place, and other election details. Under § 102.62(a), the parties agree that post-election disputes will be resolved with finality by the Regional Director. Under § 102.62(b), post-election disputes are resolved pursuant to § 102.69 of the Board's Rules and Regulations, with the parties retaining the right to file exceptions or requests for review with the Board. Under § 102.62(c), the parties can agree to the conduct of an election with disputed pre-election and post-election matters to be resolved with finality by the Regional Director. The current proposal for revision of the Board's Rules and Regulations would create a new, voluntary procedure whereby a labor organization and an employer could file jointly a petition for certification consenting to an election. The petition will provide the date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition, and the place and hours on which the parties have agreed for an election. In addition, the petition will provide a description of the bargaining unit that the parties claim to be appropriate, the payroll period for eligibility to vote in the election, and the full names and addresses of employees eligible to vote in the election. If the petition lacks any necessary information, the Regional Director will so advise the parties and request that the petition be corrected. No showing of interest is required to be filed with the petition. If it appears to the Regional Director that the information provided on the petition is accurate and sufficient and that the bargaining unit description is appropriate on its face and not contrary to any statutory provision, the petition will be docketed. Within 3 days of the docketing of the petition, the Regional Director will advise the parties of his/her approval of their request for an election. The parties' agreement as to the date, place, and hours of the election will be approved by the Regional Director, absent extraordinary circumstances. Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the joint petition for certification has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election. Failure to post these notices as required shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a). In addition to these notices, the employer must also post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election, as required under § 103.20 of the Board's Rules and Regulations. Any motions to intervene may be filed with the Regional Director in accordance with § 102.65 of the Board's Rules and Regulations, except that any such motion must be filed within 14 days from the docketing of the petition. The Board's traditional intervention policies regarding levels of intervention and the intervenor's corresponding rights to appear on the ballot, seek a different unit either in scope or composition, or insist on a hearing, will be applicable. Unfair labor practice charges, including those alleging Section 8(a)(2) or Section 8(a)(5) violations of the National Labor Relations Act, will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings. All election and post-election matters will be resolved with finality by the Regional Director. Except as outlined above, the Board's traditional election rules and policies will apply, including those relating to withdrawal or dismissal of the petition. Although the Agency has decided to give notice of proposed rulemaking with respect to these rule changes, the changes involve rules of agency organization, procedure, or practice and therefore no notice of proposed rulemaking is required under section 553 of the Administrative Procedure Act (5 U.S.C. 553). Accordingly, the Regulatory Flexibility Act (5 U.S.C. 601) does not apply to these rule changes. List of Subjects in 29 CFR Parts 101 and 102 Administrative practice and procedure, Labor management relations. For the reasons set forth above, the NLRB proposes to amend 29 CFR parts 101 and 102 as follows: PART 101—STATEMENTS OF PROCEDURES 1. The authority citation for 29 CFR part 101 continues to read as follows: Authority: Section 6 of the National Labor Relations Act, as amended (29 U.S.C. 151, 156), and sec. 55(a) of the Administrative Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1). 2. Section 101.17 is amended by adding a new second sentence and a new sentence to the end of the section to read as follows: § 101.17 Initiation of representation cases and petitions for clarification and amendment. * * * In addition, a petition for certification consenting to an election may be filed jointly by a labor organization and an employer. * * * If a petition for certification consenting to an election is filed jointly by a labor organization and an employer, no evidence of representation is required to be filed. 3. Section 101.18(a) is amended by adding a new sentence at the end to read as follows: § 101.18 Investigation of petition.
(a)* * * In the case of a petition for certification consenting to an election filed jointly by a labor organization and an employer, the bargaining unit description, if appropriate on its face and not contrary to any statutory provision, will be deemed to constitute an appropriate unit and there will be no investigation of the evidence of representation, which is not required to be filed. 4. Section 101.19 is amended by adding a new sentence to the end of the introductory text and adding a new paragraph
(d)to read as follows: § 101.19 Consent adjustments before formal hearing. * * * In addition, the labor organization and the employer may consent to an election by means of filing a joint petition for certification, as provided for in § 102.60(b), § 102.61(c), and § 102.62(d).
(d)A petition for certification consenting to an election filed jointly by a labor organization and an employer is another method of informal adjustment of representation cases.
(1)The terms of the consent election, as specified on the petition, including the bargaining unit description, the payroll period to be used as a basis of eligibility to vote in the election, and the place, date, and hours of balloting, will be approved by the Regional Director, absent extraordinary circumstances, within 3 days of the docketing of the petition. Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the petition has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election.
(2)The election will be conducted under the supervision of the Regional Director in the manner already described in this section. The filing of an unfair labor practice charge will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings in accordance with § 102.69.
(3)All matters arising after the election, including determinative challenged ballots and objections to the conduct of the election shall be processed in a manner consistent with paragraphs
(a)(4), (5), and
(6)of this section. 5. Section § 102.60 is amended by adding a new second sentence to paragraph (a), redesignating paragraph
(b)as (c), and adding a new paragraph
(b)to read as follows: § 102.60 Petitions.
(a)* * * A petition may also be filed jointly by a labor organization and an employer (see paragraph
(b)of this section). * * *
(b)*Joint petition for certification consenting to an election; who may file; where to file; withdrawal.* —A petition for certification consenting to an election may be filed jointly by a labor organization and an employer. Where applicable, the same procedures set forth in paragraph
(a)of this section shall be followed. 6. Section 102.61 is amended by redesignating paragraphs
(c)through
(e)as
(d)through
(f)and adding a new paragraph
(c)to read as follows: § 102.61 Contents of petition for certification; contents of petition for decertification; contents of petition for clarification of bargaining unit; contents of petition for amendment of certification.
(c)A petition for certification consenting to an election, when filed jointly by a labor organization and an employer, shall contain the following:
(1)The name of the employer.
(2)The address of the establishment involved.
(3)The general nature of the employer's business.
(4)Commerce information establishing that the employer's operations affect commerce within the meaning of the Act.
(5)The name, the affiliation, if any, and the address of the labor organization.
(6)A description of the bargaining unit that the parties claim to be appropriate.
(7)The number of employees in the alleged appropriate unit.
(8)The date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition.
(9)The place and hours on which the parties have agreed for an election.
(10)The payroll period for eligibility to vote in the election.
(11)The full names and addresses of employees eligible to vote in the election.
(12)Any other relevant facts. 7. Section 102.62 is amended by adding a new paragraph
(d)to read as follows: § 102.62 Consent-election agreements.
(d)Where a petition for certification consenting to an election has been duly filed jointly by a labor organization and an employer pursuant to § 102.60(b) and 102.61(c), and it appears to the Regional Director that the information provided on the petition is accurate and sufficient and that the bargaining unit description is appropriate on its face and not contrary to any statutory provision, the petition will be docketed. Within 3 days of the docketing of the petition, the Regional Director will advise the parties of his/her approval of their request for an election. The parties' agreement as to the date, place, and hours of the election will be approved by the Regional Director, absent extraordinary circumstances. Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the joint petition for certification has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election. Failure to post these notices as required herein shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a). In addition to these notices, the employer must also post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election, as required under § 103.20. Any motions to intervene may be filed with the Regional Director in accordance with § 102.65, except that any such motion must be filed within 14 days from the docketing of the petition. The filing of an unfair labor practice charge will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings in accordance with § 102.69. The election shall be conducted under the direction and supervision of the Regional Director. The method of conducting the election shall be consistent with the method followed by the Regional Director in conducting elections pursuant to § 102.69 and 102.70 except that the rulings and determinations by the Regional Director of the results thereof shall be final, and the Regional Director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect as if issued by the Board, provided further that rulings or determinations by the Regional Director in respect to any amendment of such certification shall also be final. Dated: Washington, DC, February 11, 2008. By direction of the Board. Lester A. Heltzer, Executive Secretary. [FR Doc. E8-2767 Filed 2-25-08; 8:45 am] BILLING CODE 7545-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-1068; FRL-8531-9] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Section 110(a)(1) 8-Hour Ozone Maintenance Plan for the White Top Mountain, Smyth County, VA 1-Hour Ozone Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan
(SIP)revision submitted by the Commonwealth of Virginia. This revision pertains to a 10-year maintenance plan for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia. This action is being taken under the Clean Air Act (CAA). DATES: Written comments must be received on or before March 27, 2008. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-1068 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: fernandez.cristina@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-1068, Cristina Fernandez, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-1068. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Irene Shandruk,
(215)814-2166, or by e-mail at *shandruk.irene@epa.gov.* SUPPLEMENTARY INFORMATION: On August 6, 2007, the Virginia Department of Environmental Quality (VADEQ) submitted a revision to its
(SIP)for approval of the section 110(a)(1) 8-hour ozone maintenance plan for White Top Mountain, Smyth County, Virginia. I. Background Section 110(a)(1) of the Clean Air Act (CAA or Act) requires that areas that were either nonattainment or attainment/unclassifiable with an approved 175A maintenance plan for the 1-hour ozone National Ambient Air Quality Standard (NAAQS), and attainment for the 8-hour ozone NAAQS submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS. These plans were due to EPA on June 15, 2007, three years after the effective date of the initial 8-hour ozone designations. On May 20, 2005, EPA issued the Maintenance Plan Guidance Document for Certain 8-Hour Ozone Areas Under section 110(a)(1) of the Clean Air Act. The purpose of the guidance is to assist the states in the development of a SIP which addresses the maintenance requirements found in section 110(a)(1) of the CAA. There are five components of the section 110(a)(1) maintenance plan which are:
(1)An attainment inventory, which is based on actual typical summer day emissions of volatile organic compounds
(VOCs)and oxides of nitrogen (NO <sup>X</sup> ) for a ten-year period from a base year as chosen by the state;
(2)a maintenance demonstration which shows how the area will remain in compliance with the 8-hour ozone standard for 10 years after the effective date of designations (June 15, 2004);
(3)a commitment to continue to operate air quality monitors;
(4)a contingency plan that will ensure that a violation of the 8-hour ozone NAAQS is promptly addressed; and
(5)an explanation of how the State will track the progress of the maintenance plan. II. Summary of SIP Revision The Virginia Department of Environmental Quality (VADEQ) 8-hour ozone maintenance plan addresses the components of the section 110(a)(1) 8-hour ozone maintenance plan as outlined in EPA's May 20, 2005 guidance. Virginia has requested approval of a revision consisting of a 10-year maintenance plan under section 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia. VADEQ addressed the section 110(a)(1) guidance components as follows: *Emissions Inventory:* VADEQ provided an explanation describing that White Top Mountain has no anthropogenic emissions, and since the guidance document states that projecting emissions and demonstrating maintenance for 10 years is not required for areas where there are essentially no anthropogenic emissions, emissions projections are not necessary, and thereby, not included in this maintenance plan. *Maintenance Demonstration and Tracking Progress:* The demonstration should show how the area will remain in compliance with the 8-hour ozone standard for 10 years following the base year following the effective date of designation (June 15, 2004). This is usually accomplished by a demonstration that the area will have emissions that are equal to or below the emissions inventories of VOC and NO <sup>X</sup> for this 10-year period. Since White Top Mountain has no anthropogenic emissions, and since the guidance indicates that a maintenance demonstration is not necessary for areas with essentially no anthropogenic emissions, a maintenance demonstration has not been included in this maintenance plan. *Ambient Air Quality Monitoring:* The state should continue to operate air quality monitors in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard. Virginia, however, has never operated monitors on White Top Mountain. All of the monitors at this site were part of studies either managed by the Tennessee Valley Authority or EPA's Office of Research and Development, but these monitoring studies have ceased since 1999. Virginia does not have any monitors in place to operate nor does the Commonwealth plan on establishing a monitoring site. This is so for reasons which include the following:
(1)There are no anthropogenic emissions at this site,
(2)the very remote location of this nonattainment area, and
(3)establishing a monitoring site would be cost-prohibitive. *Contingency Measures:* The guidance indicates that most areas must develop a contingency plan that will ensure any violation of the 8-hour ozone NAAQS is promptly corrected. The guidance also states that for areas that have essentially no anthropogenic emissions, having a maintenance plan with contingency measures would be an “absurd” outcome. Therefore, contingency measures are not necessary, and thereby, not included in this maintenance plan. *Verification of Continued Attainment:* Since emissions projections depend on assumptions of point, area, and mobile sources emissions, the guidance indicates that the state should indicate how it will track the progress of the maintenance plan. However, since the guidance specifically notes that emissions inventories and contingency measures are not necessary for areas where there are essentially no anthropogenic emissions, verification of these requirements is also not necessary, and therefore, not included in the maintenance plan. The VADEQ is requesting approval of their SIP revision which consists of a 10-year maintenance plan under section 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia. III. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information
(1)that are generated or developed before the commencement of a voluntary environmental assessment;
(2)that are prepared independently of the assessment process;
(3)that demonstrate a clear, imminent and substantial danger to the public health or environment; or
(4)that are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *”. The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law. IV. Proposed Action EPA's review of this material indicates that Virginia has addressed the components of a maintenance plan pursuant to EPA's May 20, 2005 guidance. EPA is proposing to approve the Virginia SIP revision for White Top Mountain, Smyth County, Virginia, which was submitted on August 6, 2007. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA(s role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the (Attorney General(s Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings( issued under the executive order. This action proposing approval of Virginia's SIP revision request consisting of a 10-year maintenance plan under § 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: February 12, 2008. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E8-3358 Filed 2-25-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2007-0646; FRL-8526-9] Approval and Promulgation of State Implementation Plans; Montana; Interstate Transport of Pollution, New Definitions of PM and PM 2.5 AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve State Implementation Plan
(SIP)revisions submitted by the State of Montana on June 28, 2000 and April 16, 2007. The revisions update Administrative Rules of Montana
(ARM)provisions for Particulate Matter, and address Interstate Transport Pollution requirements of section 110(a)(2)(D)(i) of the Clean Air Act. On June 28, 2000, the Governor of Montana submitted revisions to ARM rules 17.8.101—Definitions; 17.8.308—Particulate Matter, Airborne; and 17.8.320—Wood Waste Burners. The June 28, 2000 submittal included also a declaration certifying the adequacy of the State SIP in regard to the infrastructure-related PM <sup>2.5</sup> elements of section 110 of the Clean Air Act (CAA). In the April 16, 2007 submission, the Governor requested EPA's review and approval of the “Interstate Transport Rule Declaration” adopted into the Montana SIP on February 12, 2007. In that same letter, the Governor rescinded the State's earlier request for approval of Montana's SIP in regard to the infrastructure-related PM <sup>2.5</sup> elements of section 110 of the CAA. In light of this rescission, EPA is not taking action on this declaration. This action is being proposed under section 110 of the Clean Air Act. In the “Rules and Regulations” section of this **Federal Register** , EPA is approving the State's SIP revision as a direct final rule without prior proposal because the Agency views this as a non-controversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule. If EPA receives no adverse comments, EPA will not take further action on this proposed rule. If EPA receives adverse comments, EPA will withdraw the direct final rule and it will not take effect. EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives an adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. DATES: Written comments must be received on or before March 27, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-0646, by one of the following methods: • *http://www.regulations.gov* . Follow the on line instructions for submitting comments. • E-mail: *videtich.callie@epa.gov* and *mastrangelo.domenico@epa.gov* . • Fax:
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • Mail: Callie Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. • Hand Delivery: Callie Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. Please see the direct final rule, which is located in the Rules Section of this **Federal Register** , for detailed instruction on how to submit comments. FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air and Radiation Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129,
(303)312-6436, *mastrangelo.domenico@epa.gov* . SUPPLEMENTARY INFORMATION: See the information provided in the Direct Final action of the same title, which is located in the Rules and Regulations section of this **Federal Register** . Authority: 42 U.S.C. 7401 *et seq.* Dated: January 29, 2008. Carol Rushin, Acting Regional Administrator, Region 8. [FR Doc. E8-3339 Filed 2-25-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260, 261, 262, 263, 264, 265, and 271 [EPA-HQ-RCRA-2001-0032; FRL-8534-1] RIN 2050-AG20 Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of data availability and request for comment. SUMMARY: This notice announces the availability of additional information on the electronic manifest (e-Manifest) project. Specifically, EPA's Office of Solid Waste and Emergency Response (OSWER) has made significant progress on the e-Manifest project since the publication of the April 18, 2006 public notice, which announced and requested comment on our intention to develop a centralized web-based information technology
(IT)system that would be hosted on EPA's IT architecture. However, a few issues raised by commenters in response to the April 2006 public notice require further analysis on our part, as we make decisions concerning the e-Manifest system. We received strong support in response to the April 2006 public notice to establish a national web-based system funded through user-fees. In addition, commenters generally supported our position that use of e-Manifests should be at the election of the users rather than mandatory. However, some commenters expressed concern that an optional system would create dual paper and electronic systems. Furthermore, industry and state comments in response to our position to allow confidential business information
(CBI)claims for e-Manifests differed. Therefore, as explained in this notice, we are soliciting additional comment on EPA's position on these two issues. We remain committed to finalizing a federal regulation, once the necessary legislation is enacted, that will authorize the regulated community to use electronic manifests as the legal equivalent of paper manifests, and will consider the comments received on this notice, as well as other comments received from previous actions, before we make a final decision. DATES: Comments must be received on or before April 11, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2001-0032 by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail:* Comments may be sent by electronic mail to: *rcra-docket@epa.gov* , Attention Docket ID No. EPA-HQ-RCRA-2001-0032. • *Fax:* Comments may be faxed to 202-566-0272, Attention Docket ID No. EPA-HQ-RCRA-2001-0032. • *Mail:* Comments may be sent to Environmental Protection Agency, EPA Docket Center (EPA/DC), Resource Conservation and Recovery Act
(RCRA)Docket, 5305T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ- RCRA-2001-0032. Please include a total of two copies. • *Hand Delivery:* Comments may be hand-delivered to the Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. EPA-HQ-RCRA-2001-0032. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Please include a total of two copies. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-RCRA-2001-0032. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be captured automatically and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http:// www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the RCRA Docket is 202-566-0270. Copies cost $0.15/page. FOR FURTHER INFORMATION CONTACT: For further information regarding specific aspects of this document, contact Richard LaShier, Office of Solid Waste,
(703)308-8796, *lashier.rich@epa.gov,* or Bryan Groce, Office of Solid Waste,
(703)308-8750, *groce.bryan@epa.gov.* Mail inquiries may be directed to the Office of Solid Waste (OSW), (5304W), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. SUPPLEMENTARY INFORMATION: I. General Information A. Does This Rule Apply to Me? This rule could affect up to 223,000 entities in upwards of 600 industries involved in shipping approximately 12 million tons of RCRA hazardous wastes annually, using 5.0 million EPA Uniform Hazardous Waste Manifests (EPA Form 8700-22 and continuation sheets EPA Form 8700-22A). These entities consist of about 15,000 RCRA large quantity generator
(LQG)waste shippers, plus about 146,000 RCRA small quantity generator
(SQG)waste shippers, plus about 350 waste transporters, plus about 1,500 waste receiving treatment, storage, disposal facilities (TSDFs), plus 60,000 conditionally-exempt small quantity generators (CESQGs), 1 plus 23 state governments known to collect paper manifests as of 2004. 2 If you have any questions regarding the applicability of this rule to a particular entity, consult the people listed under FOR FURTHER INFORMATION CONTACT . 1 CESQGs are exempt from Federal RCRA hazardous waste manifesting regulations, but at least one state
(CA)requires RCRA CESQGs to use the EPA manifest for hazardous waste shipments. We have included state-regulated CESQGs in the count of possible affected entities for this notice in order to provide a complete economic impact estimate, not just a narrower Federal waste impact estimate, because the operational scope of our planned e-manifest system will encompass manifest processing for state-regulated waste shipments, not just Federal-regulated hazardous waste shipments. 2 As surveyed in 2004 with 49 states providing responses, 23 state governments currently collect completed paper manifests (source: “Analysis of Site Identification Questionnaire Collected in June and July of 2004”, August 23, 2004, compiled by Paula Canter, Ohio EPA Division of Hazardous Waste Management, for the Association of State & Territorial Solid Waste Management Officials). The Michigan Department of Environmental Quality surveyed state government agencies on this question in January 2007, but only received 29 responses, so the older but more comprehensive 2004 survey is cited here. EPA estimates that these 23 states account for 0.74 million (35%) of the 2.14 million Federally-regulated hazardous waste paper manifests per year, and 0.89 million (32%) of the 2.82 million state-regulated waste manifests collected per year, representing a total 1.63 million (33%) of the 4.96 million total paper manifests completed per year (based on extrapolation from the 2005 Federal hazardous waste shipment tonnage reported in EPA's 2005 RCRA Hazardous Waste Biennial Report). B. What Should I Consider as I Prepare My Comments for EPA? *1. Submitting CBI.* Do not submit CBI information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with the procedures set forth in 40 CFR Part 2. *2. Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible. • Make sure to submit your comments by the comment period deadline identified. *The contents of this notice are listed in the following outline:* I. Background of E-Manifest System II. Final Rulemaking Efforts A. Submission requirements to system for paper manifest copies B. Public access to electronic manifests and CBI claims for manifest data III. Request for Comments I. Background of E-Manifest System On May 22, 2001, EPA published a notice of proposed rulemaking
(NPRM)that proposed several major revisions to the hazardous waste manifest system, including proposed revisions aimed at adopting an electronic manifesting approach that would allow waste shipments to be tracked electronically, thereby mitigating the burdens and inefficiencies associated with the use of paper manifest forms (66 FR 28240). Although comments generally supported an electronic tracking scheme, several significant issues were raised that necessitated further analysis and stakeholder outreach prior to adopting a final e-Manifest regulation. As a result, EPA held a two-day public meeting on May 19-20, 2004, to discuss and obtain public input on how best to proceed with selecting and implementing the future direction of the e-Manifest. We heard from both the hazardous waste management industry and state government attendees at the public meeting that there is a strong consensus
(a)in favor of establishing a nationally centralized e-Manifest system that would consistently and securely generate and process electronic manifests, and
(b)that system users would be willing to pay reasonable service fees to fund the development and annual operation of the system. The full proceedings for the May 2004 public meeting have been posted on our EPA Web site at *http://www.epa.gov/epaoswer/hazwaste/gener/manifest/e-man.htm* . On April 18, 2006, we published a Notice of Data Availability
(NODA)to request comment on our preferred approach for electronically completing and transmitting manifests through a national, centralized e-Manifest system that would be established and maintained through user-fees. Comments strongly supported EPA's suggested approach, but also raised a few issues about which we are seeking further comment. Specifically, waste management industry commenters questioned whether the resulting dual paper and centralized e-Manifest system would generate complexity and burden that would frustrate the transition to electronic manifests and thus, undermine the paperwork burden cost savings goal for the e-Manifest. State agency comments indicated that their support for electronic manifesting was contingent upon there being a means to ensure that a complete national set of manifest data would be established, including data from both electronic manifests and any remaining paper manifests each year. According to these commenters, a centralized system that did not also contain the data from paper manifests would not present a complete picture of all RCRA and state regulated hazardous wastes. Consequently, such a system could result in some states having to maintain duplicative processes and systems to collect and track the data from the remaining paper forms. Thus, both industry and state commenters urged EPA to develop the final rule so as to lessen the effects of dual paper and electronic manifest systems. The April 2006 notice also raised the issue of potential claims of CBI regarding the manifest data. Some state government commenters generally did not support CBI claims for manifest data and deemed manifests to be public records. Further, these commenters also indicated that their states have state legislation or policies which bar CBI claims with respect to manifests. On the other hand, comments from the waste management industry supported claiming manifest data as CBI. These commenters were especially interested in protecting customer information from being mined from electronic manifests by competitors. The industry members are concerned that the availability of this information electronically will enable competitors to obtain more immediate and efficient access to their customer information. Public access to paper manifests is currently limited by a number of factors:
(a)EPA does not collect completed paper manifests, except for export and import manifests from transboundary waste shipments, so public access requests to the vast majority of completed paper manifests must be made to state governments,
(b)as of 2004, only 23 state governments collect completed paper manifests representing only about one-third of the 5.0 million national manifests annually; and
(c)although EPA's RCRA Hazardous Waste Biennial Report provides national hazardous waste shipment and waste receipt data which reveals EPA ID numbers, company names and addresses for waste shippers and waste receivers, the lag-time for public access to the Biennial Report data is at least one year 3 after any given data reporting year. 3 EPA's published schedule for data reporting and report implementation milestones for the 2007 RCRA Hazardous Waste Biennial Report, is for completion of the 2007 data year report by December 2008, which represents exactly a one-year lag-time between public access (i.e., data availability over the internet) and the data year (2007); the 2007 Biennial Report schedule is published at *http://www.epa.gov/epaoswer/hazwaste/data/biennialreport/index.htm.* However, the December 2008 scheduled completion of the 2007 Biennial Report database represents a three-year lag period relative to the prior biennial data year 2005. II. Final Rulemaking Efforts We are currently developing the final rule that will authorize the use of electronic manifests, and will address scope and other policy issues. However, the promulgation of this rule is contingent upon the enactment of legislation providing EPA the authority to collect user-fees to fund the development and operation of the system. Nevertheless, we continue to move forward with the rulemaking in anticipation of enactment of the needed legislation. Based on the comments received in response to the April 2006 public notice regarding the merits of an optional electronic manifest approach and the CBI issue, we are announcing and requesting comment on our preferred approaches for addressing submissions of paper-based manifests to the electronic manifest system and for addressing CBI claims for manifest data. These approaches are discussed below. A. Submission Requirements to System for Paper Manifest Copies EPA agrees with waste management industry and state government commenters' concern that it would not be efficient to have an electronic manifest system collecting data only from electronic manifests, while another paper-based system addresses the data only from paper manifests. Therefore, we believe that the system being designed should be a unified system for processing and distributing data from all manifests, including data from paper manifests. We considered several options aimed at simplifying the process for collecting paper forms and at ensuring that the data collected from both electronic manifests and paper forms could be efficiently processed so that a comprehensive set of manifest data would be available to users and regulators. We have identified a preferred approach that we believe provides the most efficient solution to the dual paper/electronic systems problem. Under our preferred approach, the final destination facility (i.e., designated final TSDF), for each hazardous waste shipment involving a paper manifest, would be required to submit the top copy (i.e., Page 1 of the 6-page set) of the paper manifest form to the e-Manifest system operator within 30 days of receipt of the waste shipment. While the e-Manifest system is not yet designed, we envision that the designated facility could mail a copy to the e-Manifest system operator or could transmit an image file to the EPA system so that the e-Manifest system operator could key in the data from the paper copies or image files to the data system. Alternatively, the designated facility could submit both the image file and a file presenting the manifest data to the system in image file and data file formats acceptable to the e-Manifest system operator and supported by the Central Data Exchange (CDX). For paper copies mailed to the system by designated facilities, the e-Manifest system operator would create or obtain an image file of each such manifest, and store it on the system for retrieval by state or federal regulators. The e-Manifest system operator also would key in, electronically scan using an optical character recognition
(OCR)device, or otherwise transfer the federal- and state-regulated waste data from these paper copies to the e-Manifest system. By having all manifest data in electronic form, EPA could extract any data regarding RCRA hazardous wastes for inclusion in its data systems, while the states could pull off data from the system concerning both federally regulated RCRA and state-regulated wastes for processing in the states' own tracking systems. We envision that designated facilities would be required to pay a fee to the system operator for processing the data from these final copies of the paper forms, and the fee would presumably vary with the type of submission (mailed copy, image file, or image plus data file), as these submission types would likely present a different level of effort insofar as the processing steps required to enter the form data into the system. It is likely that the fee paid by the designated facility would be passed on to the generator ( *i.e.* , the designated facility's customer). We estimate that the paperwork burden cost to TSDFs for submitting a copy of the final manifest could be $1.95 per paper manifest, for an incremental ( *i.e.* , over current baseline) annual cost to TSDFs of between $1.6 million and $6.5 million per year. In addition, we estimate the possible fee that EPA's e-Manifest system operator (or other EPA-designated e-Manifest affiliate) might charge TSDFs for receiving paper manifests and for transferring ( *i.e.* , imaging and keypunching) paper manifest data to the e-Manifest system, could be between $0.25 to $0.75 per paper manifest, for an incremental ( *i.e.* , over current baseline) annual cost to TSDFs of between $0.2 million and $2.9 million. On a combined basis, we estimate these two components of paper manifest processing incremental costs to TSDFs could total between $1.8 million and $9.4 million annually, representing an average incremental cost to TSDFs of $2.20 to $2.70 per paper manifest. We invite public comment on our approach and the cost estimates. We believe such an approach simplifies manifest copy submissions for the regulated TSDFs, who in the future would only need to provide designated facility copies to one location—the national centralized e-Manifest system—rather than supply copies to the numerous state agencies that now collect a copy of the final manifest. Further, it focuses the federal collection effort on a copy of the final paper manifest forms from the designated facilities, which provide the best accounting of the quantities and types of hazardous wastes that were actually received for management. We believe that providing a means to collect a complete set of hazardous waste receipts data from RCRA TSDFs (the merged set of paper and electronic manifest data), also may in the future provide EPA with the means to replace biennial reporting by TSDFs of waste receipts data with a much simpler approach that relies upon the designated facility data reported to the e-Manifest system. 4 4 EPA intends to publish a notice and seek comment on potential changes to the Hazardous Waste Report ( *i.e.* , Biennial Report) before any changes are made. We also believe that there are a number of benefits of this approach to state programs. As states are connected to the e-Manifest system through EPA's National Environmental Information Exchange Network, they would be able to pull off the image files and the data keyed from paper manifests from this central processing service, just as they would be able to obtain the data and presentations of electronic manifests from the eXtensible Markup Language
(XML)schemas and stylesheets transmitted on the e-Manifest system. This national data system also presents a much more efficient approach that can eliminate the need for discrete state systems designed to capture manifest data. In addition, as the e-Manifest system operator would be able to assess appropriate fees for the paper processing and data entry activities necessary to process the data from paper forms and enter them into the e-Manifest system, the actual costs of providing these services would be recovered by the system operator from the designated facility. Since we expect that electronic manifests will be much more efficient to process than paper forms, the differential fees that are established for paper and electronic manifest processing likely would operate as an additional incentive for the transition to electronic manifests. While we intend to clarify in the final rule that the use of the electronic manifest format would be optional for members of the regulated community, our preferred approach to collect a copy of the final paper manifest forms from designated facilities and to process the data from these paper forms centrally means that these designated facilities will be required to interact with the e-Manifest system ( *i.e.* , submitting data either electronically or by mail and paying established fees). Thus, this NODA confirms our intention to have a single national hazardous waste database. Facilities that elect to use the electronic manifest format would submit their manifest information electronically as a natural consequence of participating in the e-Manifest system. The e-Manifest system would be designed for the purpose of distributing electronic manifest data among the users and regulatory agencies, while the electronic manifest information is being obtained, processed, and transmitted electronically via the e-Manifest system. On the other hand, those facilities and hazardous waste handlers that choose to use the paper manifest forms or are presented with paper forms rather than electronic manifest formats, would need to process the paper manifest forms physically in the conventional manner that has been the norm since the uniform hazardous waste manifest form was introduced in 1984. However, in place of sending a copy of the final manifest directly to the destination state, the final rule would require the designated facility to send Copy 1 of the paper manifest form to EPA's e-Manifest system operator. Thus, the designated facilities would be required to submit a copy of the final manifest to the e-Manifest system, either in the supported electronic format or as a paper copy, and pay a fee for this service. In other words, the use of the electronic manifest format would be voluntary under the final rule, although the submission of either a completed paper or electronic manifest to the EPA system operator and payment of an associated fee in every case would be required of designated facilities. Once this requirement is effective, and all copies of the final manifest (electronic or paper) from designated facilities are being submitted directly to EPA's e-Manifest system operator, the states would be able to obtain their copies of the final manifest and data from the e-Manifest system through their computer systems on the National Environmental Information Exchange Network. It is EPA's intent that the submission of the final paper manifest copy to the e-Manifest system would replace the requirement to supply paper manifests directly to the states. Since the states would have nodes in place on the Exchange Network for receiving manifest copies from the system, it would no longer be necessary for the states to require the direct submission of paper copies to the states. Thus, the paper copy submission requirement could replace the requirement for facilities to submit copies of the final manifest to the states. Note that the facilities that receive paper manifests will still need to retain a paper manifest copy among their own facility records for the 3-year record retention period in accordance with current requirements. We request comment on our recommendation to collect a copy of the final electronic and paper manifest forms from designated facilities and to process the data from these forms centrally. B. Public Access to Electronic Manifests and CBI Claims for Manifest Data 1. *Individual Manifest Records and Commercial Confidentiality Concerns.* With the exception of export and import manifests from transboundary waste shipments, EPA previously has not generally collected hazardous waste manifests. While data from export or import manifests have been claimed as CBI in the past, since the adoption of the new hazardous waste manifest form (EPA Form 8700-22) and continuation sheet (EPA Form 8700-22A) (70 FR 10776 (March 4, 2005); 71 FR 19842, 19847 (April 18, 2006)), our records indicate that no CBI claims have been made at this time regarding any of the data contained in these manifests. Thus, until now, the Agency has not had a need to determine any national policy with respect to the eligibility of manifest data for CBI claims. Based on the information now available to EPA on this question, EPA has concluded that information contained in individual hazardous waste manifest records, including any individual electronic manifests that may be submitted and collected electronically through the e-Manifest system, is essentially public information and therefore is not eligible under federal law for treatment as CBI. The effect of this decision is that EPA would be making a categorical determination that it will not accept any CBI claims that might be asserted in the future in connection with processing, using, or retaining individual paper or electronic manifests. This decision, we believe, should apply prospectively from the effective date of the e-Manifest final rule because the Agency has not previously announced this position and thus it would be unfair or inappropriate for the Agency to release such information, particularly for those companies that have previously made such a claim. Thus, it would not impact any CBI claims or any determinations made in the past by EPA in resolving manifest-related CBI claims. Our rationale is explained in the following paragraphs. First, we believe that any CBI claim that might be asserted with respect to individual manifest records would be extremely difficult to sustain under the substantive CBI criteria. 40 CFR Part 2, Subpart B, and 40 CFR 260.2. As manifests are shared with several commercial entities while they are being processed and used, a business concerned with protecting its commercial information would find it exceedingly difficult to protect its individual manifest records from disclosure by all the other persons who come into contact with its manifests. For example, a business desiring to protect commercial information in the manifest context would need to enter into and enforce non-disclosure agreements or similar legal mechanisms with all its customers and other third parties and affected interests who might also be named as waste handlers on its manifests or who otherwise might be expected to come into contact with its manifests. Moreover, as many states now require the submission of generator and/or TSDF copies of manifests, and the data from these manifests are often made publicly available or reported in federal and state information systems, it seems apparent to EPA that much of the information that might be claimed now by industry commenters to be CBI is already available from a number of government and other legitimate sources. We have little information on whether states have withheld manifest or aggregate data, as the State surveys did not disclose any pattern of states withholding data. We do know, however, that California must withhold information in summary reports that links a customer and a transporter. 5 5 Hazardous waste transporters that are authorized by CA to use CA's consolidated manifesting procedures must submit quarterly reports to the CA EPA Department of Toxic and Substances Control (DTSC). The consolidated manifesting procedures apply to non-RCRA/CA hazardous waste or to RCRA hazardous waste that is not subject to the federal manifest requirements. The CA Health and Safety Code § 25160(d) prohibits the disclosure of the association between any specific transporter and specific generator. The list of generators served by a transporter is deemed to be trade secret and confidential business information for purposes of Section 25173 and Section 66260.2 of Title 22 of the California Code of Regulations. Second, we are aware that some state programs have denied CBI treatment to data contained in manifest records. 6 Some states disclose manifest records freely, and this has been the general practice among those states for more than 20 years. As far as EPA knows, free disclosure has been the common practice for dealing with data from manifest records among some states, and there have not been significant objections raised by members of industry to those states' disclosure practices. EPA is not persuaded that it should reverse this long-standing policy among those states by adopting a Federal policy that conflicts with the prevailing state laws and policies on this issue. We seek comment on other states' CBI treatment of manifest records and the data contained in them. 6 In January of 2007, the MI state representative on EPA's E-Manifest Final Rule Work Group disseminated a survey on behalf of ASTSWMO, through the Hazardous Waste Program Operations Task Force, to interested states in order to request information about their state manifest requirements, including the requirements for public access/CBI to manifest records. Eight states responded on how they currently treat or might treat manifest data as CBI. Responses from the eight states are as follows: One state
(NY)denies CBI treatment to manifest records; One state
(OH)allows TSDFs to claim CBI on their annual waste report; Four states (ID, OR, SC, CT) do not give CBI treatment to manifest data reported on quarterly or annual reports; and Two states (FL, MI) indicate that they would not give manifest data CBI treatment. In addition, three states (MD, NJ, PA) that participated on the work group, but were not included in the survey indicated that their state would not treat manifest data as CBI. For these reasons, we believe that individual manifest records and data contained in them should not be subject to CBI claims since they are not entitled to protection as CBI in some states. This policy will apply to electronic and paper manifests, and to domestic and transboundary shipment manifests. While we intend to clarify in the final rule that individual manifest records would not be entitled to CBI protection, we also are considering limiting access to the preliminary/draft manifest data. Access would only be limited while the data are being collected and verified, as manifest data are processed and received by waste handlers, and exceptions or discrepancies are being resolved, in the system and before the manifest information is complete. Specifically, the preparation and processing of a manifest is an iterative process that begins when the generator fills out and signs the generator portion of the manifest; continues as transporters review and correct the generator-supplied information, fill in any additional transporter data fields, and then sign to acknowledge receipt of the shipment; and concludes when the receiving facility enters facility data, signs to acknowledge waste receipts, rejections, or discrepancies, and then verifies the final status of the shipment to the generator (and to many authorized states) by sending the generator and states the final verified copy. EPA believes that it typically will take up to 60 days from the start of a shipment for all the iterative manifest processing and verification steps to be completed. As part of this process, the designated facility must report waste receipts to the generator of that waste within 30 days of receipt of the waste. 40 CFR 264.71(a)(2)(iv). Any significant discrepancies must be reported to the EPA Regional Administrator or the authorized state if the discrepancy is not resolved between the generator and designated facility within 15 days from the designated facility's receipt of the waste. 40 CFR 264.71(b)(4) and 264.72(c). In addition, the existing regulations provide that exceptions must be reported by generators to EPA or authorized states if 45 days have passed since delivery of the hazardous waste to the initial transporter, and the generator still has not received a copy of the final manifest signed by the designated facility. 40 CFR 262.42. Therefore, during the time that waste shipments are en route to the receiving facilities, and during the period of time after delivery of the waste when manifest exceptions and discrepancies may be reported, we intend to limit access to incomplete and unverified manifest data to only the entities involved with a shipment (and to regulators and emergency responders). These are the entities that have a need to know about the manifest data being entered on an electronic manifest, while the shipment is en route, or while the manifest data is subject to review and correction—that is, during the time for verifying and reporting waste receipts, exceptions or discrepancies, and resolving the exceptions or discrepancies. However, after this 60-day period has passed, such that the electronic manifests are considered complete and final for regulatory purposes, EPA intends to make all manifest records available upon request in accordance with the Federal Freedom of Information Act (FOIA), 5 U.S.C. 552. We emphasize that this suggested limited restriction on access during the manifest creation process is intended to protect the integrity and security of the manifest data during the period of time that the electronic manifest is being processed and verified by the waste handlers that are involved with the management of the waste shipment. EPA requests comment on our decision to categorically and prospectively exclude manifests from eligibility for CBI claims. In addition, the Agency believes that the FOIA exemption for personal privacy does not exempt from production the names of company employees or independent contractors that appear in the manifests. EPA requests public comment on this position. The Agency also requests comment on its proposed policy of limiting access to incomplete and unverified manifest information to the waste handlers named on particular manifests (as well as regulators and emergency responders), and allowing full disclosure of manifest information that has been completed and verified by the receiving facilities. As we discussed above, EPA believes that the period of limited access to preliminary manifest data should extend no longer than 60 days after the start of the waste shipment. However, we request comment on whether 60 days is appropriate, or whether commenters believe that another period of time is more appropriate. 2. *Release of Aggregate Data and Competitive Harm Concerns.* EPA understands that the waste management industry may be concerned that the aggregation of manifest records and data contained in them in one national electronic system may enable competitors to obtain more immediate and efficient access to their customer information, thus potentially creating competitive consequences not experienced under the current paper system. Because EPA has not previously collected manifest records electronically, we have no quantifiable evidence at this time to suggest that the manifest data that would be stored in EPA's national system would somehow create or cause competitive harm to persons or companies that would submit data to the e-Manifest system, if that data were released in aggregated form upon a FOIA request. Since the individual manifest records would not be eligible for CBI treatment for the reasons discussed above, it is a novel issue for EPA whether requests under FOIA for data aggregated from multiple manifests would require special handling by EPA under the FOIA exemption for confidential business information. Therefore, EPA is seeking public comment on how, if at all, the e-Manifest system should address any future FOIA requests for aggregate manifest data. First, EPA needs information on how substantial the harm would be to a company's competitive position (particularly since we intend to defer the release of electronic manifest data to the general public for 60 days) if aggregate data from multiple manifests could be obtained from EPA under a FOIA request. How would this situation differ quantifiably from the current situation where a FOIA request can be made for multiple manifests and the requester must then aggregate the relevant data in each of these manifests for himself or herself? How different would the situation be from that which occurs now with paper manifests given that a member of the public may generally obtain any number of paper manifests from states under the states' current manifest collection and tracking programs? Also, even if EPA could offer additional protection to aggregate e-Manifest data, what would be the benefit since requesters can instead direct their requests for electronic manifest records to the states? The states will routinely receive electronic manifest records from the e-Manifest system in their capacity as RCRA regulators. However, these states would not be required to follow EPA's determinations under the exemption for CBI of the Federal FOIA and could instead choose or be required to release all electronic manifest data as public information under their state laws and procedures. Given our uncertainty about the adverse effects or competitive harm to waste management businesses that would submit manifests to the national e-Manifest system, we seek comment on whether the release of aggregated data would adversely impact waste management businesses. In particular, we ask that the waste management industry substantiate their concerns, if any, that the aggregation of manifest data and the subsequent disclosure of that data would somehow release their company's confidential business information and thus cause substantial competitive harm to them. We also request information on how the waste management industry protects their confidential business information recorded on manifests in states that currently make manifest data publicly available. If EPA were to determine that the waste management industry concerns for the disclosure of aggregate information are legitimate and that they are not sufficiently addressed by the approach described above in this NODA, then we could develop another approach to mitigate the ability to efficiently create customer lists from aggregated data. For instance, we could design the e-Manifest system to provide the aggregated data in a redacted form, protecting either the identity of the generator, transporter, or TSDF so that anyone who requests aggregated data could not generate customer business information from it. We therefore request comment on how EPA should design and implement an approach to protect the disclosure of aggregate data of competitive value, if such an approach were appropriate. For example, what are the indicators of aggregated requests (e.g., requests of 50 or more manifests involving a single transporter or TSDF) that would justify our handling aggregated data differently from individual manifests for FOIA disclosure purposes? What information should be redacted from the data that are released to mitigate any competitive harm from the data disclosure? How can this process be automated so that it can be effectively implemented in an electronic manifest system that must address potentially millions of manifest records annually, and their related FOIA requests, without significant human intervention? III. Request for Comments EPA requests comments on the policy issues discussed in this notice regarding our preferred approach that final copies of paper manifest records be submitted by designated facilities to EPA's e-Manifest system operator for data processing, and our categorical determination that individual or aggregate manifest data may not be claimed as CBI. The Agency also requests comment on various aspects of our proposed policy of limiting access to incomplete and unverified manifest information to the waste handlers named on particular manifests (as well as regulators and emergency responders). EPA will consider the comments received pursuant to this notice, along with comments on the April 18, 2006 public notice, on the e-Manifest proposal in the May 2001 proposed rule, and the May 2004 Stakeholder meeting, as it prepares a final rule on the e-Manifest system. Dated: February 19, 2008. Susan Parker Bodine, Assistant Administrator, Office of Solid Waste and Emergency Response. [FR Doc. E8-3615 Filed 2-25-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Office of Refugee Resettlement 45 CFR Part 404 RIN 0970-AC28 Limitation on Use of Funds and Eligibility for Funds Made Available by the Office of Refugee Resettlement, Within the Administration for Children and Families, of the Department of Health and Human Services, To Monitor and Combat Trafficking in Persons AGENCY: Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS). ACTION: Proposed rule. SUMMARY: This proposed rule would implement two provisions of the Trafficking Victims Protection Act
(TVPA)(22 U.S.C. Chapter 78), as amended by the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003 (Pub. L. 108-193), that provide limitations on the use of funds. The provisions at Title 22 of the U.S.C. 7110(g) prohibit programs from using trafficking funds to promote, support, or advocate the legalization or practice of prostitution. They make ineligible to receive funds any organization that promotes, supports, or advocates the legalization or the practice of prostitution if the organization operates a program that targets victims of severe forms of trafficking, unless the organization provides assistance to individuals solely after they are no longer engaged in activities that resulted from their being trafficked. This proposed rule applies to funds that Congress appropriates for the U.S. Department of Health and Human Services for anti-trafficking purposes under Title 22 of the United States Code. DATES: *Comment Date:* HHS will consider comments received on or before April 28, 2008. ADDRESSES: You may submit your comments in writing to the Office of Refugee Resettlement, Administration for Children and Families, U.S. Department of Health and Human Services, 370 L'Enfant Promenade, SW., 8th Floor, Washington, DC 20447. Comments will be available for public inspection Monday through Friday, 8:30 a.m. to 5 p.m., at the Department's offices at the above address. You may download a copy of this regulation at *www.regulations.gov,* or you may download a copy and transmit written comments electronically via the Internet at the following address: *http://www.regulations.acf.hhs.gov.* FOR FURTHER INFORMATION CONTACT: Vanessa Garza, Associate Director for Trafficking Policy, Office of Refugee Resettlement, Administration for Children and Families, U.S. Department of Health and Human Services,
(202)401-2334, or by e-mail at *vanessa.garza@acf.hhs.gov.* Do not e-mail comments on the Proposed Rule to this address. SUPPLEMENTARY INFORMATION: I. Statutory Authority This proposed rule implements two provisions concerning restrictions on the use of funds that were added to the TVPA by the TVPRA of 2003 and codified at Title 22 of the U.S.C. 7110(g). These provisions:
(1)Prohibit any Federal funds appropriated under the TVPA, Public Law 106-386, and the TVPRA of 2003, or any amendments thereto, from being used to promote, support, or advocate the legalization or the practice of prostitution (designated the “Restriction on Programs” in the statute); and
(2)make ineligible to receive Federal funds appropriated under the TVPA or TVPRA, or any amendments thereto, any organization that promotes, supports, or advocates the legalization or the practice of prostitution if the organization operates a program that targets victims of severe forms of trafficking, unless the organization provides assistance to individuals solely after they are no longer engaged in the activities that resulted from such victims being trafficked (designated the “Restriction on Organizations” in the statute). II. Background This regulation implements these statutory provisions as part of the U.S. Government's vigorous and comprehensive campaign to eliminate trafficking in persons at home and around the world. Congress and the Executive Branch are especially concerned about the significant role sexual exploitation plays in fueling trafficking in persons. The U.S. Government is opposed to prostitution and related activities, which are inherently harmful and dehumanizing, and which contribute to the phenomenon of trafficking in persons. Reducing the incidence of prostitution is therefore an inseparable part of the larger strategy of the United States to combat trafficking. In addition, prostitution is inherently harmful to society and degrading to the women and children involved in it, even if they allegedly choose prostitution as a form of “work,” and even if authorities make prostitution legal or decriminalize it such that no person involved faces criminal prosecution. The U.S. Government does not accept the claim that the legalization of prostitution and/or societal acceptance of prostitution as a legitimate form of work would be effective strategies to reduce trafficking in persons. In sharp contrast, the U.S. Government has concluded that legalization and/or societal acceptance of prostitution would increase the sexual exploitation of women and children, particularly girls, and trafficking in persons specifically. To pursue its comprehensive campaign to combat trafficking, the U.S. Government provides funds to domestic and foreign non-profit organizations (including, but not limited to, community action agencies, research institutes, educational associations, health centers, and hospitals), for-profit entities; U.S. State, local, and tribal governments and subdivisions thereof; Foreign Governments and subdivisions thereof; international organizations, such as agencies of the United Nations; international inter-governmental organizations; and other groups (hereinafter referred to collectively in this regulation as “organizations,” or “organization” in the singular); and in some circumstances to individuals, for direct services to victims, public information campaigns, and other interventions. Because of the connection between trafficking and prostitution, the U.S. Government cannot execute its comprehensive anti-trafficking campaign through programs or organizations that promote, support, or advocate the legalization of prostitution. Furthermore, the Executive Branch, as stated in the Trafficking in Persons National Security Presidential Directive 22 (NSPD-22), actively seeks to support efforts to develop civil-society institutions that promote the human rights of victims and populations vulnerable to trafficking, support law enforcement, and provide victims with assistance and protection. The goal of this policy is to provide incentives to rescue trafficking victims, rather than accept or validate the situations that result from their being trafficked. The statute directs that Federal funds must not go to programs that promote, support, or advocate the legalization or practice of prostitution, and that organizations that operate programs to target victims of severe forms of trafficking must “state” that they do not promote, support, or advocate the legalization or the practice of prostitution. The Senior Policy Operating Group (SPOG), a statutorily established inter-agency, U.S. Government coordinating body, with membership determined pursuant to Executive Order No. 13257 of February 13, 2002 and including the Secretary of State, the Attorney General, the Secretary of Labor, the Secretary of Health and Human Services, the Director of Central Intelligence, the Director of the Office of Management and Budget, the Administrator of the United States Agency for International Development, and any additional officers or employees of the United States as may be designated by the President, has decided that a statement in the form of a certification is the best means to ensure enforcement of these requirements. This proposed rule applies to funds that Congress appropriates for the U.S. Department of Health and Human Services
(HHS)for anti-trafficking purposes under Title 22 of the United States Code. Specifically, the rule proposes certification language that organizations must provide in applications for grants, cooperative agreements, contracts, grants under a contract, and other funding instruments made available by the HHS Administration for Children and Families
(ACF)Office of Refugee Resettlement (ORR), the component carrying out the Victims of Human Trafficking program. The statute requires the limitations to apply to a “grant application, a grant agreement, or both.” The HHS/ACF/ORR interprets this reference to encompass all mechanisms for providing Federal assistance. Transfers of Federal funds occur through a diverse range of instruments in addition to grants. The policy against support, promotion, or advocacy of prostitution applies broadly to all such transfers, not merely those accomplished through grants. By applying the limitations to a diverse range of funding instruments, HHS/ACF/ORR reinforces the statutory purpose at 22 U.S.C. 7110(g)(1) that “ *no funds* made available to carry out [the trafficking statute] may be used to promote, support, or advocate the legalization or practice of prostitution,” (emphasis added) and ensures a more consistent implementation of the limitations. In addition, application of the proposed rule to grants only would invite evasion of the policy. The proposed rule therefore applies to grants, cooperative agreements, contracts, grants under a contract, and other funding instruments. The regulation is prospective and does not apply to funds already provided; the regulation does, however, apply to funds made available subject to a periodic renewal application or award. There are two periods of time covered by restrictions in the statute and the regulation:
(1)While victims are being trafficked and
(2)after they are no longer engaged in the activities that resulted from their being trafficked. As specified by the statute, the proposed rule clarifies that prohibited “support” for prostitution does not prohibit assistance to victims to ameliorate their suffering, or health risks to them, both “while they are being trafficked,” and “after they are out of the situation that resulted from their being trafficked.” The regulation defines “ameliorative assistance” to include assistance intended to mitigate the suffering of, or health risks to, victims of trafficking caused by their being trafficked, or their engagement in the activities resulting from such victims being trafficked, including incidental or limited assistance deemed necessary to develop a relationship and rapport with the victim as part of a strategy to help the victim escape his or her trafficked condition, and cease those activities which result from their being trafficked. The HHS/ACF/ORR is issuing this regulation in coordination with other U.S. Government Departments and agencies represented on the SPOG, all of which have developed their own proposed regulations or policy directives from a model regulation developed under the supervision of the SPOG. Each SPOG member Department or agency will implement its regulation in accordance with its standard grant-making and administrative procedures, which vary. Nothing in the regulation is intended to lessen or relieve relevant prohibitions on Federal Government funding under other applicable Federal laws. III. Discussion of the Proposed Rule These sections discuss the proposed rule by defining the terms relevant to this proposed rule; detailing the restriction on programs for use of Federal anti-trafficking funds; discussing the restriction on organizations that receive Federal anti-trafficking funds; describing the certifications required for the receipt of Federal anti-trafficking funds; explaining how the proposed rule applies to consortia; setting forth a policy for recordkeeping and inspection; and discussing the process for termination of Federal funding in the case of a violation of the rule. Section 401.1 Definitions This section defines the terms that are pertinent to this rule. Specifically, we propose the following definitions: *“Activities that resulted from the trafficking of such victims”* means commercial sex acts induced by force, fraud, or coercion, or any such act in which the person induced to perform such act has not attained 18 years of age; or labor or services in which the recruitment, harboring, transportation, provision, or obtaining of the person induced to perform such labor or services has been through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. It does not mean mere presence in the United States. *“Ameliorative assistance”* means assistance intended to relieve the suffering of, or health risks to, victims of trafficking caused by their being trafficked, or their engagement in activities resulting from such victims being trafficked, including incidental or limited assistance deemed necessary to develop a relationship and rapport with the victim as part of a strategy to help the victim escape his or her trafficked condition and cease those activities which result from their being trafficked. It does not mean assistance that supports the trafficker or that is not intended to facilitate the eventual rescue of the trafficking victim. *“Being trafficked”* means the subject is the victim of a severe form of trafficking. *“Commercial sex act”,* defined in Title 22 of the U.S.C. 7102(3), means any sex act on account of which anything of value is given to or received by any person. *“Emergency medical care”* means examination or other care appropriate to address an existing emergency medical condition, including transport for further care. *“Emergency medical condition”* means a medical condition that manifests itself by acute symptoms of sufficient severity (including severe pain), such that the absence of immediate medical attention could reasonably be expected to result in a physical disorder, physical illness, or physical injury that:
(a)Is life-threatening;
(b)results in permanent impairment of a body function or permanent damage to a body structure; or
(c)necessitates medical or surgical intervention to preclude permanent impairment of a body function or permanent damage to a body structure. *“Funds made available for the purpose of monitoring or combating the trafficking of persons”* means any U.S. Government funds appropriated by the U.S. Congress to the U.S. Department of Health and Human Services for anti-trafficking purposes under Title 22 of the United States Code, whether distributed through grants, cooperative agreements, contracts, grants under a contract, and other funding instruments. *“Legalization of prostitution”* means a state of affairs in which prostitution is legal, decriminalized such that no person involved faces criminal prosecution, or regulated as a legitimate form of work. *“Organization”* means a non-profit organization (including, but not limited to, a community action agency, research institute, educational association, health center, or hospital), a for-profit entity; U.S. State, local, or tribal government; or a contractor, including a personal services contractor. *“Program”* means the method or procedures used to deliver assistance. The term includes activities conducted by a single individual or organization, by consortia of individuals or organizations, or by collaborations between or among individuals or organizations. *“Program that targets victims of severe forms of trafficking in persons”* means a program that is designed to, or does, monitor or provide assistance to or is aimed at assisting victims of severe forms of trafficking in persons, including but not limited to, the Victims of Human Trafficking Program administered by the HHS/ACF/ORR. *“Prostitution”* and “the practice of prostitution” means procuring or providing any commercial sex act as defined in Section 103(3) of the TVPA of 2000 (22 U.S.C. 7102(3)). *“Recipient”* means an organization or individual that receives U.S. Government funds made available for the purpose of monitoring or combating the trafficking of persons. *“Severe forms of trafficking in persons”* means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or any such act in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. *“Sex trafficking”* means the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act. *“Situation that resulted from such victims being trafficked”* means a situation caused by or characterized by a victim engaging in activities that resulted from his or her being trafficked. It does not mean mere presence in the United States. *“Sub-recipient”* means any entity to which a recipient of Federal funds makes some or all of those funds available, and which is accountable to the recipient for the use of the funds provided, including, without limitation, sub-sub grantees and sub-sub contractors. *“To support the legalization or the practice of prostitution”* means to knowingly provide financial support, including the transfer of funds, services, or goods, to any individual or organization that engages in the practice of prostitution, or that promotes or advocates the legalization or the practice of prostitution, or that supports the legalization of prostitution; or to endorse or sponsor or support a document or conference that supports the legalization of prostitution; or to provide assistance to trafficking victims that is not ameliorative assistance, as defined in this regulation. An organization or recipient shall not be deemed to have knowingly provided such support if that organization or recipient did not know, and by the exercise of reasonable diligence would not have known, that its financial or organizational support was being used for, or would be used for, such purposes. Further, providing trafficking victims with emergency medical care for an emergency medical condition does not constitute such support. *“To promote or to advocate the legalization or the practice of prostitution”* means to use financial, personal, in-kind, or other resources to further the legalization or the practice of prostitution, including by sponsoring or supporting conferences or publications that further the legalization or the practice of prostitution. This includes, but is not limited to, engaging in lobbying activities or public information or advocacy campaigns to further the legalization or the practice of prostitution. Section 404.2 Restriction on Programs This section of the proposed rule relates to the use of anti-trafficking funds provided by the HHS/ACF/ORR. Under the proposed rule, Paragraph
(a)would provide that no organization may use funds made available by the HHS/ACF/ORR for the purpose of monitoring or combating trafficking in persons to promote, support, or advocate the legalization or practice of prostitution. Paragraph
(b)would stipulate that nothing in paragraph
(a)of this subsection shall be construed to preclude assistance designed to ameliorate the suffering of, or health risks to, victims while they are being trafficked, or after they are out of the situation that resulted from their being trafficked. The proposed rule does not prohibit the provision of emergency medical care for an emergency medical condition, whenever provided. The HHS/ACF/ORR has determined the statutory prohibition on “support” for prostitution does not prohibit the provision of emergency medical care for an emergency medical condition, and thus that recipients of funds may provide emergency medical care for an emergency medical condition to victims during the two time periods described above. The HHS/ACF/ORR has defined “emergency medical condition” under Section 401.1. The statute, however, does not give authorization for assistance that supports the trafficker, or that is not intended to facilitate the eventual rescue of the trafficking victim. The HHS/ACF/ORR understands that Congress intended anti-trafficking funds to focus on activities designed to end trafficking and rescue victims, not on activities that would effectively facilitate, encourage, expand, condone, or subsidize prostitution activities. Section 404.3 Restriction on Organizations This section of the proposed rule describes the restrictions on the organizations that receive anti-trafficking funds from the HHS/ACF/ORR. The Federal Government finds that organizations that promote, support, or advocate the legalization or the practice of prostitution are not appropriate to conduct programs that serve victims of human trafficking. Under Paragraph (a), no organization may use Federal funds made available for the purpose of monitoring or combating trafficking in persons to implement any program that targets victims of severe forms of trafficking in persons through any organization that has not certified it does not promote, support, or advocate the legalization or practice of prostitution. However, this would not apply to organizations that provide assistance to individuals solely after they are no longer engaged in activities that resulted from such victims being trafficked. Under Paragraph
(b)of this section, an organization is ineligible to receive any Federal funds made available for the purpose of monitoring or combating trafficking in persons, unless it has provided the certifications required by Section 404.4. Section 404.4 Certifications This section of the proposed rule describes the certifications required to receive anti-trafficking funding from the HHS/ACF/ORR. The required certification has three basic parts, each of which organizations must complete as a part of their application for funding. The first part implements the statutory Restriction on Programs through a Use of Funds Certification, located at Section 404.4(d)(1), in which an applicant or a recipient that is seeking or receiving Federal anti-trafficking funds administered by the HHS/ACF/ORR certifies it will not use those funds to promote, support, or advocate the legalization or the practice of prostitution. The second part implements the Restriction on Organizations through three alternative certifications, of which organizations must sign at least one. Organizations that are implementing a program to target victims of severe forms of trafficking must provide the Primary Eligibility Certification, located at Section 404.4(d)(2)(i), unless they serve only individuals who are no longer engaged in the activities that resulted from their being trafficked. In that case, they must provide Secondary Eligibility Certification A at Section 404.4(d)(2)(ii), stating that they serve or provide services only to victims who are no longer engaged in the activities that resulted from their being trafficked. Other organizations that provide assistance to victims of non-severe forms of trafficking, or otherwise do not meet the criteria for organizations that must provide the other certifications, must provide Secondary Eligibility Certification B, located at Section 404.4(d)(2)(iii), to state that the organization does not implement a program that targets victims of severe forms of trafficking. The third part of the certification contains Acknowledgement and Sub-recipient Certifications at Section 404.4(d)(3). These require each applicant to acknowledge that its provision of the certifications is a prerequisite to receiving Federal funds; that the Federal Government can stop or withdraw those funds if the HHS/ACF/ORR finds a certification to have been, or becomes, inaccurate; and that the applicant will ensure that all its sub-applicants also provide the required certifications. As detailed in the certifications section, a sub-applicant must, at a minimum, provide the same certification as that provided by the original applicant. To remain consistent with the policies for contracts in other HHS programs, the HHS/ACF/ORR is considering providing an exemption from the second part of the certification requirements, “Restrictions on Organizations,” for “specified types of commercial contracts.” “Specified types of commercial contracts” would be defined as contracts awarded for commercial items and services as defined in FAR 2.101, such as pharmaceuticals, medical supplies, logistics support, data management, and freight forwarding. Despite the preceding definition, “specified types of commercial contracts” would not include contracts awarded to carry out the trafficking program by:
(a)Providing supplies or services directly to victims of trafficking
(b)providing technical assistance and training to individuals or entities that provide supplies or services directly to victims of trafficking;
(c)providing the types of services listed in FAR 37.203(b)(1)-(6) that involve giving advice about substantive policies of a recipient, giving advice regarding the activities referenced in
(a)and
(b)above, or making decisions or functioning in a recipient's chain of command (e.g., providing managerial or supervisory services approving financial transactions, personnel actions, etc.). In October 2007, HHS' Office of Acquisition Management and Policy issued a policy to exempt such contracts/subcontracts for recipients of HHS funds in connection with the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, or “Leadership Act” ( *http://www.hhs.gov/oamp/policies/leadershipactclause.doc* ). The HHS/ACF/ORR is interested in receiving comments about whether this exemption should also be contained in the rule. Paragraph
(e)of this section would define violations of this regulation by individuals who are employees, directors, or otherwise under the control of the recipient. This part also provides for exceptions in which the recipient does not provide reimbursement for such actions or the recipient takes reasonable steps necessary to clearly show that the recipient does not support, promote, or advocate the individual's position. Paragraph
(f)contains information regarding requirements for the renewal of certification. These require each recipient to file renewed certifications upon any extension, amendment, or modification of the funding instrument that extends the term of such instrument or adds additional funds to it. Additionally, the requirements state that current funding recipients, as of the effective date of the regulation, must file a certification upon any extension, amendment, or modification of the funding instrument that extends the term of such instrument or adds additional funds to it. Under Paragraph (g), recipients must submit certifications from each sub-recipient in writing, signed by the sub-recipient's officer or other person authorized to bind the sub-recipient. Section 404.5 Restriction on Programs Operated with or through Consortia No funds made available for the purpose of monitoring or combating the trafficking of persons may be made available through, or expended by, programs operated with, or through, a consortium of organizations that includes any organization that has not provided the HHS/ACF/ORR with a certification, as set out in Section 404.4. In order to maintain the integrity of the funding limitations provided by Title 22 of the U.S.C. 7110(g), the HHS/ACF/ORR is considering adding a section to the final rule which would describe the factors used to determine whether an applicant, recipient, or sub-recipient of funds made available for the purpose of monitoring or combating trafficking in persons is appropriately separate from an affiliated organization that has not provided the certifications required by Section 404.4. These factors could be similar to those contained in 45 CFR 1610.8, which describe the extent of separation and independence that recipients of funds from the Legal Services Corporation must maintain from organizations that are ineligible to receive such funds because they do not make required certifications. These factors could also be similar to those contained in a July 2007 guidance issued by HHS pertaining to the “Leadership Act” ( *http://www.globalhealth.gov/reports/index.html#guidance* ). For example, a recipient could be found to be separate and independent from an affiliate organization if:
(1)The affiliate organization is a legally separate entity;
(2)the affiliate organization receives no transfer of HHS/ACF/ORR funds, and HHS/ACF/ORR funds do not subsidize restricted activities; and
(3)the recipient is physically and financially separate from the other organization. The HHS/ACF/ORR is interested in receiving comments about whether such factors should be contained in the rule and their content. Section 404.6 Record-keeping and Inspection This section of the proposed rule sets forth policy on record-keeping and inspection. Under Paragraph (a), recipients and sub-recipients shall maintain press and public relations material, Internet content, and other broadly disseminated documents (such as training manuals, curricula, and other educational matter) pertinent to establishing the validity of the certifications, provided for a period of three years after the end of the term of the grant, cooperative agreement, contract, grant under a contract, or other funding instrument through which the HHS/ACF/ORR or a recipient provided the Federal funds. If a recipient or sub-recipient starts any litigation, claim or audit before the expiration of the three-year period, parties must retain the records until all litigation, claims or audit findings involving the materials have been resolved and final action taken. Paragraph
(b)as proposed provides that authorized employees of the HHS/ACF/ORR have the right to timely and unrestricted access to the materials described in paragraph (a). This right also includes timely and reasonable access to a recipient's personnel for the purpose of interview and discussion related to such documents. Section 404.7 Termination of Funding This section of the proposed rule relates to the process for termination of funding for failure to comply with this regulation. Under paragraph
(a)of this section, the HHS/ACF/ORR may terminate the transfer of funds to a recipient if the HHS/ACF/ORR determines that the recipient or a sub-recipient of the funds has failed to comply with the requirements of this part. Paragraph
(b)provides that a recipient whose funding the HHS/ACF/ORR has terminated shall reimburse the HHS/ACF/ORR for all funds expended after the violation occurred, or, in the case of a grant, cooperative agreement, contract, grant under a contract, or other funding instrument, the funds in their entirety, if the HHS/ACF/ORR determines that an organization's certification was or has become false. Paragraph
(c)provides that, in addition to termination of funding, the HHS/ACF/ORR may suspend or debar a recipient in violation of this part from receiving any further Federal Government funds if the HHS/ACF/ORR determines that the violation of this part was willful. Finally, paragraph
(d)stipulates that terminations will be in accordance with the Federal Acquisitions Regulations, Part 49 for contracts; 45 CFR Part 74 or Part 92 for grants, cooperative agreements, and grants under a contract. IV. Impact Analysis Regulatory Flexibility Act The Secretary certifies under Title 5 of the U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not result in a significant impact on a substantial number of small entities. The number of contracts affected by this rule is minimal. Since enactment of the anti-prostitution provision in the TVPRA of 2003, the HHS/ACF/ORR has required its program announcements for discretionary trafficking funding grants to include a “Certification Regarding Prostitution and Related Activities,” which can take any form, including a written statement. The statute explicitly requires certifications. Executive Order 12866—Regulatory Planning and Review The HHS has drafted and reviewed this regulation in accordance with Executive Order 12866, Section 1(b), Principles of Regulation. The HHS/ACF/ORR has determined this rule is a “significant regulatory action” under Executive Order 12866, Section 3(f)(4), Regulatory Planning and Review, because it raises novel legal or policy issues, that arise out of legal mandates and the President's priorities, and accordingly the Office of Management and Budget has reviewed it. The benefits of this rule are that the limitations on supporting, promoting, or advocating the legalization or the practice of prostitution will
(1)help further the U.S. Government's strategy to reduce sexual exploitation that fuels trafficking in persons and
(2)demonstrate the U.S. Government's opposition to prostitution. In addition, a potential benefit of the regulation could be that the incidence of prostitution and trafficking in the United States could decline. Executive Order 13132—Federalism Executive Order 13132 on Federalism requires Federal Departments and agencies to consult with State and local Government officials in the development of regulatory policies with implications for Federalism. This rule does not have Federalism implications for State or local Governments, as defined in the Executive Order. Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 requires that a covered Federal department or agency prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that could result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more in any one year. The HHS has determined this rule would not impose a mandate that will result in the expenditure by State, local, and Tribal Governments, in the aggregate, or by the private sector, of more than $100 million in any one year. Assessment of Federal Regulation and Policies on Families Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal Departments and agencies to determine whether a proposed policy or regulation could affect family well-being. If the determination is affirmative, then the Department or agency must prepare an impact assessment to address criteria specified in the law. These regulations will not have an impact on family well-being, as defined in this legislation. Paperwork Reduction Act of 1995 Section 404.4 and 404.6 of this proposed rule contains an information collection requirement. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Administration for Children and Families has submitted a copy of this section to the Office of Management and Budget
(OMB)for its review. The title of the information collection is “Certification Regarding Use of Funds and Eligibility for Funds, as required by the Trafficking Victims Protection Reauthorization Act.” The HHS/ACF/ORR sponsors the information collection. To obtain or retain Federal funding for anti-trafficking activities, the HHS/ACF/ORR requires the information of all applicants and recipients and all sub-applicants and sub-recipients of ORR anti-trafficking funding. The certification and associated documents are necessary to ensure organizations are not using Federal anti-trafficking funds to promote, support or advocate the legalization or practice of prostitution, and that organizations that receive Federal funds to monitor and combat severe forms of trafficking in persons do not support, promote, or advocate the legalization or the practice of prostitution. Likely respondents to this information collection include non-profit organizations (including, but not limited to, community action agencies, research institutes, educational associations, health centers, and hospitals); for-profit entities; U.S. State, local, and tribal governments and subdivisions thereof; and other groups and individuals. The HHS/ACF/ORR estimates that 36 respondents will complete the certification within five minutes, and prepare documents to validate the certification within 25 minutes. Additionally, the HHS/ACF/ORR estimates a limited burden for record keeping of supporting documentation pertinent to establishing the validity of the certifications. The HHS therefore estimates annual aggregate burden to collect the information as follows: Annual Burden Estimates Instrument Number of respondents Number of responses per respondent Average burden hours per response Total burden hours Certification Regarding Prostitution 36 1 .5 18 Recordkeeping and inspection 36 1 .5 18 Estimated Total Annual Burden Hours: 36. The Administration for Children and Families will consider comments by the public on this proposed collection of information in the following areas: Evaluating whether the proposed collection is necessary for the proper performance of the functions of ACF, including whether the information will have practical utility; evaluating the accuracy of the ACF's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; enhancing the quality, usefulness, and clarity of the information to be collected; and minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technology, e.g., permitting electronic submission of responses. To ensure that public comments have maximum effect in developing the final regulations, the ACF urges that each comment clearly identify the specific section or sections of the regulations that the comment addresses and that comments be in the same order as the regulations. OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the **Federal Register** . Therefore, a comment is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the Department on the proposed regulations. Written comments to OMB for the proposed information collection should be sent to the Office of Management and Budget either by e-mail to *OIRA_submission@omb.eop.gov* or by fax to 202-395-6974. Please mark all comments “Attention: Desk Officer for the Administration for Children and Families.” List of Subjects in 45 CFR Part 404 Administrative practice and procedure, Aliens, Civil rights, Human trafficking, Immigration, Federal aid programs, Grant programs, Grants administration, Refugees, Victims. Dated: February 9, 2007. Martha E. Newton, Director, Office of Refugee Resettlement, Dated: February 11, 2007. Wade F. Horn, Assistant Secretary for Children and Families. Approved: November 9, 2007. Michael O. Leavitt, Secretary of Health and Human Services. For the reasons stated in the preamble, the Administration for Children and Families amends 45 CFR chapter IV to add part 404 to read as follows: PART 404—LIMITATIONS ON ELIGIBILITY FOR AND USE OF FUNDS MADE AVAILABLE BY THE OFFICE OF REFUGEE RESETTLEMENT (ORR), WITHIN THE ADMINISTRATION FOR CHILDREN AND FAMILIES
(ACF)OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS), FOR MONITORING AND COMBATING TRAFFICKING IN PERSONS Sec. 404.1 Definitions. 404.2 Restriction on programs. 404.3 Restriction on organizations. 404.4 Certifications. 404.5 Restriction on programs operated with or through consortia. 404.6 Record-keeping and inspection. 404.7 Termination of funding. Authority: 22 U.S.C. 7110(g). § 404.1 Definitions. For the purposes of this part *:* *Activities that resulted from such victims being trafficked* means commercial sex acts induced by force, fraud, or coercion, or any such act in which the person induced to perform such act has not attained 18 years of age; or labor or services in which the recruitment, harboring, transportation, provision, or obtaining of the person induced to perform such labor or services has been through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. It does not mean mere presence in the United States. *Ameliorative assistance* means assistance intended to relieve the suffering of, or health risks to, victims of trafficking caused by their being trafficked or their engagement in activities resulting from such victims being trafficked, including incidental or limited assistance deemed necessary to develop a relationship and rapport with the victim as part of a strategy to help the victim escape his or her trafficked condition and cease those activities which result from their being trafficked. It does not mean assistance that supports the trafficker or is not intended to facilitate the eventual rescue of the trafficking victim. *Being trafficked* means the subject is the victim of a severe form of trafficking. *Commercial sex act,* defined in Title 22 of the U.S.C. 7102(3), means any sex act on account of which anything of value is given to or received by any person. *Emergency medical care* means examination or other care appropriate to address an existing emergency medical condition, including transport for further care. *Emergency medical condition* means a medical condition that manifests itself by acute symptoms of sufficient severity (including severe pain), such that the absence of immediate medical attention could reasonably be expected to result in a physical disorder, physical illness, or physical injury that:
(1)Is life threatening,
(2)Results in permanent impairment of a body function or permanent damage to a body structure, or
(3)Necessitates medical or surgical intervention to preclude permanent impairment of a body function or permanent damage to a body structure. *Funds made available for the purpose of monitoring or combating the trafficking of persons* means any U.S. Government funds appropriated by the U.S. Congress to the U.S. Department of Health and Human Services for anti-trafficking purposes under Title 22 of the United States Code, whether distributed through grants, cooperative agreements, contracts, grants under a contract, or other funding instruments. *Legalization of prostitution* means a state of affairs in which prostitution is legal, decriminalized such that no person involved faces criminal prosecution, or regulated as a legitimate form of work. *Organization* means a non-profit organization (including, but not limited to, a community action agency, research institute, educational association, health center, or hospital), a for-profit entity; U.S. State, local, or tribal Government; or a contractor, including a personal services contractor. *Program* means the method or procedures used to deliver assistance. The term includes activities conducted by a single individual or organization, by consortia of individuals or organizations, or by collaborations between or among individuals or organizations. *Program that targets victims of severe forms of trafficking in persons* means a program that is designed to, or does, monitor or provide assistance to or is aimed at assisting victims of severe forms of trafficking in persons, including but not limited to, the Victims of Human Trafficking Program administered by the HHS/ACF/ORR. *Prostitution* and *the practice of prostitution* means procuring or providing any commercial sex act as defined in Section 103(3) of the Trafficking Victims Protection Act
(TVPA)of 2000 (22 U.S.C. 7102(3)). *Recipient* means an organization or individual receiving U.S. Government funds made available for the purpose of monitoring or combating the trafficking of persons. *Severe forms of trafficking in persons* means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or any such act in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. *Sex trafficking* means the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act. *Situation that resulted from such victims being trafficked* means a situation caused by or characterized by a victim's engaging in activities that resulted from his or her being trafficked. It does not mean mere presence in the United States. *Sub-recipient* means any entity to which a recipient of Federal funds makes some or all of those funds available, and which is accountable to the recipient for the use of the funds provided, including, without limitation, sub-sub grantees and sub-sub contractors. *To support the legalization or the practice of prostitution* means to knowingly provide financial support, including the transfer of funds, services, or goods, to any individual or organization that engages in the practice of prostitution or that promotes or advocates the legalization or the practice of prostitution, or that supports the legalization of prostitution; or to endorse or sponsor or support a document or conference that supports the legalization of prostitution; or to provide assistance to trafficking victims that is not ameliorative assistance, as defined in this regulation. An organization or recipient shall not be deemed to have knowingly provided such support if that organization or recipient did not know, and by the exercise of reasonable diligence would not have known, that its financial or organizational support was being used for, or would be used for, such purposes. Further, providing trafficking victims with emergency medical care for an emergency medical condition does not constitute such support. *To promote or to advocate the legalization or the practice of prostitution* means to use financial, personal, in-kind, or other resources to further the legalization or the practice of prostitution, including by sponsoring or supporting conferences or publications that further the legalization or the practice of prostitution. This includes, but is not limited to, engaging in lobbying activities or public information or advocacy campaigns to further the legalization or practice of prostitution. § 404.2 Restriction on programs.
(a)No funds made available by the HHS/ACF/ORR for the purpose of monitoring or combating trafficking in persons may be used to promote, support, or advocate the legalization or practice of prostitution.
(b)Nothing in paragraph
(a)of this section shall be construed to preclude assistance designed to ameliorate the suffering of, or health risks to, victims while they are being trafficked or after they are out of the situation that resulted from their being trafficked. § 404.3 Restriction on organizations.
(a)No funds made available for the purpose of monitoring or combating trafficking in persons may be used to implement any program that targets victims of severe forms of trafficking in persons through any organization that has not certified that it does not promote, support, or advocate the legalization or practice of prostitution. The preceding sentence shall not apply to organizations that provide services to individuals solely after they are no longer engaged in activities that resulted from their being trafficked.
(b)An organization is ineligible to receive any funds made available for the purpose of monitoring or combating trafficking in persons, unless it has provided the certifications required by § 404.4. § 404.4 Certifications.
(a)Applicants shall include certifications in the application for the grant, cooperative agreement, contract, grant under a contract, or other funding instrument, made by an officer or other person authorized to bind the applicant.
(b)The HHS/ACF/ORR shall notify applicants for any grant, cooperative agreement, contract, grant under a contract, or other funding instrument of the certification requirement through public announcement of the availability of the grant, cooperative agreement, contract, grant under a contract, or other funding instrument.
(c)All applicants must provide the certifications in paragraph (d)(1) of this section (the Use of Funds Certification) and paragraph (d)(3) of this section (Acknowledgement and Sub-Applicant Certifications), and organizations that are applicants must provide at least one of the certifications in paragraph (d)(2) of this section (by choosing among the Primary Eligibility certification and the two Secondary Eligibility Certifications). Organizations that are sub-applicants of an organization that provides the Primary Eligibility Certification must themselves provide the Primary Eligibility Certification. Likewise, organizations that are sub-applicants of an organization that provides Secondary Eligibility Certification A must themselves provide Secondary Eligibility Certification A, and organizations that are sub-recipients of an organization that provides Secondary Eligibility Certification B must provide Secondary Eligibility Certification B.
(d)The certifications shall state as follows:
(1)Use of Funds Certification: “I hereby certify that the recipient of the funds made available through this [grant, cooperative agreement, contract, grant under a contract, or other funding instrument] will not use such funds to promote, support, or advocate the legalization or the practice of prostitution.”
(2)Eligibility Certifications.
(i)Primary Eligibility Certification: “I certify that the organization does not promote, support, or advocate the legalization or the practice of prostitution, and will not promote, support, or advocate the legalization or the practice of prostitution during the term of this [grant, cooperative agreement, contract, grant under a contract, or other funding instrument]. I further certify that the organization does not operate through any other organization or individual that supports, promotes, or advocates the legalization or the practice of prostitution.”
(ii)Secondary Eligibility Certification A: “I certify that the organization provides assistance to individuals only after they are no longer engaged in activities that resulted from their being trafficked, and that the organization does not operate through any organization that provides assistance to victims other than after those victims are no longer engaged in the activities that resulted from their being trafficked. I further certify that if, during the funding period, the organization or any sub-recipient begins to provide assistance to other victims, the organization and all its sub-recipients, prior to the time such assistance is provided, will provide the Primary Eligibility Certification in 45 CFR 404.4(d)(2)(i).”
(iii)Secondary Eligibility Certification B: “I certify that the organization does not implement a program that serves victims of severe forms of trafficking, and that the applicant does not operate through any organization or individual that implements a program that serves victims of severe forms of trafficking. I further certify that if, during the funding period, the organization or any sub-recipient begins to implement such a program, the organization and all its sub-recipients, prior to implementation of such a program, will provide the Primary Eligibility Certification in 45 CFR 404.4(d)(2)(i).”
(3)Acknowledgement and Sub-applicant Certifications: “I further certify that the applicant acknowledges that these certifications are a prerequisite to receipt of U.S. Government funds in connection with this [grant, cooperative agreement, contract, grant under a contract, or other funding instrument], and that any violation of these certifications shall be grounds for unilateral termination by the HHS/ACF/ORR of any grant, cooperative agreement, contract, grant under a contract, or other funding instrument prior to the end of its term and recovery of appropriated funds expended prior to termination. I further certify that the applicant will include this identical certification requirement in any [grant, cooperative agreement, contract, grant under a contract, or other funding instrument] to a sub-applicant of funds made available under this [grant, cooperative agreement, contract, grant under a contract, or other funding instrument], and will require such sub-applicant to provide the same certification that the organization provided.”
(e)The HHS/ACF/ORR shall consider an recipient in violation of its certifications if an individual who is an employee, director, or otherwise under the control of the recipient supports, promotes, or advocates the legalization or the practice of prostitution, unless:
(1)The recipient does not endorse or provide financial support for the action by the individual and prohibits the individual from accepting reimbursement from other organizations for such action insofar as such reimbursement occurs because of the individual's position with the recipient.
(2)The applicant takes reasonable steps necessary to ensure that a reasonable observer would understand the individual is not representing the applicant, and that the applicant does not endorse the individual's promotion, support, or advocacy of prostitution or its legalization.
(f)Recipient, sub-recipients, applicants and sub-applicants of funds must file a renewed certification upon any extension, amendment, or modification of the grant, cooperative agreement, contract, grant under a contract, or other funding instrument that extends the term of such instrument or adds additional funds to it. Recipients and sub-recipients that are already recipients, sub-recipients, applicants and sub-applicants as of the effective date of this regulation must file a certification upon any extension, amendment, or modification of the grant, cooperative agreement, contract, grant under a contract, or other funding instrument that extends the term of such instrument or adds additional funds to it.
(g)Sub-applicants of funds must provide the HHS/ACF/ORR with a certification as set out in Paragraph
(c)of this section, or in a separate writing signed by the sub-applicant officer or other person authorized to bind the applicant, submitted as part of the application for award of the grant, cooperative agreement, contract, grant under a contract, or other funding instrument. § 404.5 Restriction on programs operated with or through consortia. The HHS/ACF/ORR may not make available any funds appropriated for the purpose of monitoring or combating the trafficking of persons through, or expended by, programs operated with, or through, a consortium of organizations that includes any organization that has not provided the HHS/ACF/ORR with a certification as set out in § 404.4. § 404.6 Record-keeping and inspection.
(a)Recipients and sub-recipients shall maintain press and public relations material, Internet content, and other broadly disseminated documents (such as training manuals, curricula, and other educational matter) pertinent to establishing the validity of the certifications for a period of three years after the end of the term of the grant, cooperative agreement, contract, grant under a contract, or other funding instrument through which the HHS/ACF/ORR provided the funds. If any litigation, claim or audit is started before the expiration of the three year period, the records must be retained until all litigation, claims or audit findings involving the materials have been resolved and final action taken.
(b)Authorized HHS/ACF/ORR employees have the right to timely and unrestricted access to the materials described in paragraph
(a)of this section. This right also includes timely and reasonable access to a recipient's personnel for the purpose of interview and discussion related to such documents. § 404.7 Termination of funding.
(a)The HHS/ACF/ORR may terminate transfer of funds to a recipient, including by terminating a grant, cooperative agreement, contract, grant under a contract, or other funding instrument, if the HHS/ACF/ORR determines that the recipient or a sub-recipient of the funds has failed to comply with the requirements of this part.
(b)A recipient whose HHS/ACF/ORR funding has been terminated shall reimburse the HHS/ACF/ORR for all funds expended after the violation occurred, or, in the case of a grant, cooperative agreement, contract, grant under a contract, or other funding instrument, the funds in their entirety if the HHS/ACF/ORR determines that an organization's statement was or has become false.
(c)In addition to termination of funding, the HHS/ACF/ORR may suspend or debar a recipient in violation of this part from receiving any further Federal government funds if the HHS/ACF/ORR determines that the violation of this part was willful.
(d)Terminations will be in accordance with the Federal Acquisition Regulations, Part 49 for contracts; 45 CFR Part 74 or Part 92 for grants, cooperative agreements, and grants under a contract. [FR Doc. E8-3489 Filed 2-25-08; 8:45 am] BILLING CODE 4184-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R6-ES-2008-0022; 1111 FY07 MO-B2] Endangered and Threatened Wildlife and Plants; Initiation of Status Review for the Greater Sage-Grouse (Centrocercus urophasianus) as Threatened or Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice; initiation of status review and solicitation of new information. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the initiation of a status review for the greater sage-grouse ( *Centrocercus urophasianus* ). Through this action, we encourage all interested parties to provide us information regarding the status of, and any potential threats to, the greater sage-grouse. DATES: To be considered in our determination whether listing is warranted, data, comments, and information should be submitted to us on or before May 27, 2008. ADDRESSES: You may submit comments by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *U.S. mail or hand-delivery:* Public Comments Processing, Attn: FWS-R6-ES-2008-0022; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on *http://www.regulations.gov.* This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: The U.S. Fish and Wildlife Service's Wyoming Ecological Services Field Office, 5353 Yellowstone Road, Suite 308A, Cheyenne, Wyoming 82009; telephone 307-772-2374. People who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Public Information Solicited To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the greater sage-grouse. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties on the status of the greater sage-grouse throughout its range, including:
(1)Information regarding the species' historical and current population status, distribution, and trends; its biology and ecology; and habitat selection;
(2)Information on the effects of potential threat factors that are the basis for a listing determination under section 4(a) of the Act, which are:
(a)present or threatened destruction, modification, or curtailment of the species' habitat or range;
(b)overutilization for commercial, recreational, scientific, or educational purposes;
(c)disease or predation;
(d)the inadequacy of existing regulatory mechanisms; or
(e)other natural or manmade factors affecting its continued existence.
(3)Information on management programs for the conservation of the greater sage-grouse. Please note that comments merely stating support or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, because section 4(b)(1)(A) of the Act (16 U.S.C. 1531 *et seq.* ) directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will determine whether listing is warranted, not warranted, or warranted but precluded. You may submit your comments and materials concerning this finding by one of the methods listed in the ADDRESSES section. We will not accept comments you send by e-mail or fax. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that we will post your entire comment—including your personal identifying information—on *http://www.regulations.gov* . While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this finding, will be available for public inspection on *http://www.regulations.gov* , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service's Wyoming Ecological Services Field Office, 5353 Yellowstone Road, Suite 308A, Cheyenne, Wyoming 82009; telephone 307-772-2374. Background On July 2, 2002, we received a petition from Craig C. Dremann requesting that we list the greater sage-grouse ( *Centrocercus urophasianus* ) as endangered across its entire range. We received a second petition from the Institute for Wildlife Protection on March 24, 2003 (Webb 2002), requesting that the greater sage-grouse be listed rangewide. On December 29, 2003, we received a third petition from the American Lands Alliance and 20 additional conservation organizations (American Lands Alliance et al.) to list the greater sage-grouse as threatened or endangered rangewide. On April 21, 2004, we announced our 90-day petition finding in the **Federal Register** (69 FR 21484) that these petitions taken collectively, as well as information in our files, presented substantial information indicating that the petitioned actions may be warranted. Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended
(Act)(16 U.S.C. 1531 et seq.), requires that, for any petition to revise the Lists of Threatened and Endangered Wildlife and Plants that contains substantial scientific or commercial information that the action may be warranted, we make a finding within 12 months of the date of the receipt of the petition on whether the petitioned action is:
(a)Not warranted,
(b)warranted, or
(c)warranted but precluded by other pending proposals. Such 12-month findings are to be published promptly in the **Federal Register** . On January 12, 2005, we announced our 12-month finding (70 FR 2244) that after reviewing the best available scientific and commercial information, we found that listing the greater sage-grouse was not warranted. Western Watersheds Project filed a complaint on July 14, 2006, alleging that our finding was arbitrary and capricious under the Administrative Procedure Act (5 U.S.C. 701 *et seq.* ). On December 4, 2007, the U.S. District Court, District of Idaho, ruled that our 12-month petition finding was in error and remanded the case to the Service for further consideration. Legal action is still pending and the Court has not yet set a date for completion of the remand. Subject to any new court order, the Service has determined that it is appropriate to initiate a new status review to address information that has become available since our 2005 petition finding. That finding relied, in part, on information in the “Conservation Assessment of Greater Sage-Grouse and Sagebrush Habitats” published in 2004 by the Western Association of Fish and Wildlife Agencies. Since the publication in 2004 of the Conservation Assessment, a significant amount of new research has been completed and new information has become available regarding threats, conservation measures, and population and habitat status of the greater sage-grouse. Unless the court requires an earlier completion date for a remanded 12-month finding, it is our intention to complete this new status review and make a new determination at that time as to whether listing is warranted. At this time, we are soliciting new information on the status of and potential threats to the greater sage-grouse. Information submitted prior to January 12, 2005, will be considered and need not be resubmitted. We will base our new determination as to whether listing is warranted on a review of the best scientific and commercial information available, including all such information received as a result of this notice. For more information on the biology, habitat, and range of the sage-grouse, please refer to our previous 12-month finding published in the **Federal Register** on January 12, 2005 (70 FR 2244). Author The primary author of this notice is the staff of the Wyoming Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ). Authority: The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: February 15, 2008. Dale Hall, Director, U.S. Fish and Wildlife Service. [FR Doc. E8-3374 Filed 2-25-08; 8:45 am] BILLING CODE 4310-55-P 73 38 Tuesday, February 26, 2008 Notices DEPARTMENT OF AGRICULTURE National Agricultural Statistics Service Notice of Intent To Seek Approval To Revise and Extend an Information Collection AGENCY: National Agricultural Statistics Service, USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service
(NASS)to request revision and extension of a currently approved information collection, the Field Crops Objective Yield Surveys. Revision to burden hours may be needed due to changes in the size of the target population, sampling design, and/or questionnaire length. DATES: Comments on this notice must be received by April 28, 2008 to be assured of consideration. ADDRESSES: You may submit comments, identified by docket number 0535-0088, by any of the following methods: • E-mail: *ombofficer@nass.usda.gov.* Include docket number above in the subject line of the message. • Fax:
(202)720-06396. • Mail: Mail any paper, disk, or CD-ROM submissions to: NASS Clearance Officer, U.S. Department of Agriculture, Room 5336A, Mail Stop 2024, South Building, 1400 Independence Avenue, SW., Washington, DC 20250-2024. • Hand Delivery/Courier: Hand deliver to: NASS Clearance Officer, U.S. Department of Agriculture, Room 5336A, South Building, 1400 Independence Avenue, SW., Washington, DC 20250-2024. FOR FURTHER INFORMATION CONTACT: Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture,
(202)720-4333. SUPPLEMENTARY INFORMATION: *Title:* Field Crops Objective Yield. *OMB Control Number:* 0535-0088. *Expiration Date of Approval:* November 30, 2008. *Type of Request:* Intent to Request Approval to Revise and Extend an Information Collection. *Abstract:* The primary objective of the National Agricultural Statistics Service is to prepare and issue State and national estimates of crop and livestock production, prices, and disposition. The Field Crops Objective Yield Surveys objectively predict yields for corn, cotton, potatoes, soybeans, and wheat. Sample fields are randomly selected for these crops, plots are laid out, and periodic counts and measurements are taken and then used to forecast production during the growing season. Production forecasts are published in USDA Crop Production reports. The Field Crops Objective Yield Surveys have approval from OMB for a 3-year period; NASS intends to request that the surveys be approved for another 3 years. Authority: These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-113) and Office of Management and Budget regulations at 5 CFR part 1320 (60 FR 44978, August 29, 1995). *Estimate of Burden:* Public reporting burden for this collection of information is estimated to average 24 minutes. *Respondents:* Farmers, ranchers, or farm managers. *Estimated Number of Respondents:* 8,555. *Estimated Total Annual Burden on Respondents:* 3,422 hours. Copies of this information collection and related instructions can be obtained without charge from NASS Clearance Officer, at
(202)720-2248. *Comments:* Comments are invited on:
(a)Whether the proposed 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 the burden of the proposed collection of information including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(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. All responses to this notice will become a matter of public record and be summarized in the request for OMB approval. Signed at Washington, DC, February 8, 2008. Joseph T. Reilly, *Associate Administrator.* [FR Doc. 08-840 Filed 2-25-08; 8:45 am]
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Traces to 31 documents
U.S. Code
23 references not yet in our index
  • 14 CFR 39
  • 16 CFR 23
  • 16 CFR 17
  • 29 CFR 101
  • Pub. L. 100-236
  • 40 CFR 52
  • 40 CFR 58
  • Pub. L. 104-4
  • 40 CFR 2
  • 40 CFR 260.2
  • 40 CFR 264.71(a)(2)(iv)
  • 40 CFR 264.71(b)(4)
  • 40 CFR 262.42
  • 45 CFR 404
  • Pub. L. 108-193
  • Pub. L. 106-386
  • 45 CFR 1610.8
  • 45 CFR 74
  • Pub. L. 96-354
  • 45 CFR 404.4(d)(2)(i)
  • 50 CFR 17
  • Pub. L. 104-113
  • 5 CFR 1320
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U.S.C.§ 106
C.F.R.§ 39.19
U.S.C.§ 3501
C.F.R.§ 4.2
C.F.R.§ 4.9
U.S.C.§ 45
C.F.R.§ 23.7
Cite14 CFR 39
Cite16 CFR 23
Cite16 CFR 17
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