Rules and Regulations. Temporary rule; closure

39,628 words·~180 min read·/register/2008/03/27/08-1081

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BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 071106673-8011-02] RIN 0648-XG70 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Vessels in the Amendment 80 Limited Access Fishery in the Bering Sea and Aleutian Islands Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY:

NMFS is prohibiting directed fishing for Pacific cod for vessels participating in the Amendment 80 limited access fishery in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the B season allowance of the 2008 Pacific cod allowable catch

(TAC)specified for vessels participating in the Amendment 80 limited access fishery in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), April 1, 2008, through 1200 hrs, A.l.t., June 10, 2008. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area

(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The B season allowance of the 2008 Pacific cod TAC allocated to vessels participating in the Amendment 80 limited access fishery in the BSAI is 824 metric tons as established by the 2008 and 2009 final harvest specifications for groundfish in the BSAI (73 FR 10160, February 26, 2008). In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the entire B season allowance of the 2008 Pacific cod TAC allocated to vessels participating in the Amendment 80 limited access fishery in the BSAI will be caught as incidental catch in directed fisheries for other groundfish fisheries. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and is setting aside the remaining 824 mt as incidental catch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels participating in the Amendment 80 limited access fishery in the BSAI. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and

(f)apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by vessels participating in the Amendment 80 limited access fishery in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 21, 2008. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 24, 2008. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-6295 Filed 3-26-08; 8:45 am] BILLING CODE 3510-22-S 73 60 Thursday, March 27, 2008 Proposed Rules DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 226 [FNS-2007-0022] RIN 0584-AD15 Child and Adult Care Food Program: At-Risk Afterschool Meals in Eligible States AGENCY: Food and Nutrition Service (FNS), USDA. ACTION: Proposed rule. SUMMARY: This rule proposes to amend the Child and Adult Care Food Program (CACFP) regulations to implement provisions from the Agriculture Risk Protection Act of 2000, the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2002, and the Consolidated Appropriations Act of 2008, that authorize reimbursement to eligible States for a meal (normally a supper) served by at-risk afterschool care programs. The eligible States are Delaware, Illinois, Michigan, Missouri, New York, Oregon, Pennsylvania, and West Virginia. The intent of this proposed rule is to conform CACFP regulations to statutory amendments that provide an additional meal for at-risk children through age 18 who are participating in afterschool programs in the eligible States. The Food and Nutrition Service

(FNS)implemented the statutory mandates through written policy guidance upon enactment of the statutory provisions. DATES: To be assured of consideration, written comments must be received or postmarked on or before May 27, 2008. ADDRESSES: FNS invites interested persons to submit comments on this proposed rule. Comments may be submitted by any of the following methods: • *Mail:* Send comments to Robert M. Eadie, Chief, Policy and Program Development Branch, Child Nutrition Division, Room 640, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302. • *Fax:* Submit comments by facsimile transmission to:

(703)305-2879. Please address your comments to Mr. Eadie and identify your comments as “CACFP: At-Risk Afterschool Meals”. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. Comments submitted in response to this rule will be included in the record and will be available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. FNS will make the comments publicly available on the Internet via *http://www.regulations.gov* . All written submissions will be available for public inspection at the address above during regular business hours (8:30 a.m. to 5:30 p.m.) Monday through Friday, excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Julie Brewer, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302, phone

(703)305-2590. SUPPLEMENTARY INFORMATION: I. Background 1. What are at-risk afterschool meals? Afterschool meals in the CACFP are served to at-risk children participating in eligible afterschool care programs in selected States as authorized by law. At-risk afterschool meals were authorized by section 243(i) of the Agriculture Risk Protection Act of 2000 (Pub. L. 106-224), which amended section 17(r) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1766(r)) (NSLA). This provision followed an earlier authorization for afterschool snack reimbursements through the CACFP by the William F. Goodling Child Nutrition Reauthorization Act of 1998 (Pub. L. 105-336). Public Law 105-336 expanded the availability of snacks to children ages 13 through 18 in the CACFP through at-risk afterschool care centers that are located in the attendance area of a school where 50 percent or more of the enrolled children are certified as eligible to receive free or reduced price school meals. Public Law 105-336 also provided for the nationwide availability of snacks in the National School Lunch Program (NSLP). A proposed rule to implement the statutory provisions for afterschool snacks in the NSLP and CACFP was published on October 11, 2000 (65 FR 60502). The proposal had a 90-day comment period; 33 comment letters were received. A final rule, Afterschool Snacks in the Child and Adult Care Food Program, was published on July 31, 2007 (72 FR 41591). A final rule on serving afterschool snacks in the NSLP is expected to be published in 2008. As stipulated by law, at-risk meals and snacks are available to children through age 18 (or any age if disabled) who are participating in an afterschool care program under the CACFP. The afterschool care program must be located in the geographical area of a school in which at least 50 percent of the children who are enrolled are certified eligible for free or reduced price meals. Although at-risk afterschool snacks are available in all States, at-risk afterschool meals are only available in States authorized by section 17(r)(5) of the NSLA—currently, Delaware, Illinois, Michigan, Missouri, New York, Oregon, Pennsylvania, and West Virginia. To be eligible, afterschool care programs must be organized primarily to provide care to at-risk school children after school, or on weekends, holidays, or school vacations and must provide educational or enrichment activities. At-risk meals and snacks must be served free of charge to the participants and are reimbursed at the applicable free rates for meals and snacks. 2. How were the States selected for at-risk afterschool meals? Initially, only six States were authorized to be reimbursed for meals served in at-risk afterschool programs. Four of the six States were named in the law (Delaware, Michigan, Missouri, and Pennsylvania); two remaining States were to be selected by the Secretary based upon competitive applications. As described in the following paragraph, the Department selected New York and Oregon through the competitive application process. The seventh State, Illinois, was added by section 771(3) of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2002 (Pub. L. 107-76, 115 Stat. 745, November 28, 2001), and the eighth State, West Virginia was added by section 744, division A of the Consolidated Appropriations Act, 2008 (Pub. L. 110-161, December 26, 2007). Both laws amended section 17(r)(5) of the NSLA (42 U.S.C.1766(r)). 3. How did USDA select the other two States? Acting on the statutory requirement to select two States competitively, FNS distributed applications to all CACFP State agencies in August 2000. Eleven State agencies submitted applications by the October 2000 deadline. FNS rated the submissions using the following criteria: demonstration of need; State support of afterschool care programs; and status of at-risk afterschool care programs in CACFP. The applicants were notified in December 2000 of the Department's selections. 4. When were these States authorized to begin at-risk afterschool meal operations? The four States initially named in the statute, Delaware, Michigan, Missouri, and Pennsylvania, were eligible to reimburse at-risk afterschool care centers for meals beginning on June 20, 2000. The two additional States selected by USDA, New York and Oregon, were eligible to receive reimbursement for afterschool meals in January 2001. The seventh State, Illinois, was notified in November 2001 of its eligibility. The eighth State, West Virginia, was notified in December 2007 of its eligibility. 5. How did USDA help the States implement the at-risk afterschool meal provision? FNS convened a meeting of the original six at-risk “supper” States (Delaware, Michigan, Missouri, New York, Oregon, and Pennsylvania) on April 4, 2001, at FNS headquarters' offices in Alexandria, Virginia. The meeting focused on providing technical assistance and exchanging implementation strategies for at-risk suppers. The exchange of information revealed wide variations in the implementation of the at-risk supper component by the eligible State agencies. For example, strict licensing requirements in one State prevented aging public school buildings from being used as afterschool care centers while other States had no licensing requirements for afterschool care centers. Some jurisdictions even lacked health or safety requirements for afterschool programs. In 2002 and 2003, FNS continued to provide technical assistance through conference calls with administrators from the eligible at-risk afterschool “supper” States. Comments and suggestions made by the participants of the April 2001 meeting and subsequent conference calls in 2002 and 2003 provided FNS with valuable insight into operational issues that contributed to the development of policy in the at-risk afterschool care component of the Program as reflected in policy and guidance issued by FNS and in the development of this proposed rule. 6. Why does the proposed rule use the term “at-risk meals” instead of “at-risk suppers”? To emphasize the eligibility for reimbursement of any one meal served to children attending at-risk afterschool care centers in eligible States when they are not in school, we have dropped the use of the term “at-risk afterschool suppers” in favor of the more accurate term, “at-risk afterschool meals.” The issue was raised whether at-risk afterschool centers in the eligible States are limited to suppers or whether other meals may be served and reimbursed at the free rate under the at-risk provisions. It was pointed out that the statutory language specifies the provision of at-risk meals, not suppers, and that use of the term “at-risk suppers” may inadvertently restrict eligible at-risk programs that operate on weekends and school holidays to seek reimbursement for or serve only the supper meal. However, the at-risk meal reimbursement is not limited exclusively to suppers when an eligible at-risk afterschool center provides care when school is closed, such as on the weekends or vacations during the regular school year. 7. What is USDA's approach to implementing at-risk afterschool meals in the CACFP regulations? We propose to track the provisions for at-risk afterschool meals as closely as possible to the regulatory requirements already in place for at-risk afterschool snacks; the CACFP at-risk afterschool snack provisions were published in a final rule on July 31, 2007 (72 FR 41591). This is consistent with the treatment of at-risk meals in the statute; both at-risk snacks and meals are authorized under the same at-risk provisions in the NSLA at section 17(r) (42 U.S.C. 1766(r)). In addition, most of the provisions contained in this rule would propose the continuation of requirements that FNS has previously provided to the eligible States on the implementation of at-risk afterschool meals. 8. What proposed provisions are similar to at-risk afterschool snack provisions? This rule proposes to extend the at-risk snack provisions located in 7 CFR 226.17a and in other sections of the CACFP regulations to include at-risk meals. These requirements include payments to at-risk afterschool care centers, eligible organizations and afterschool care programs, application procedures, participant eligibility for at-risk meals, licensing requirements, State agency approval, data requirements for determining area eligibility, reporting and recordkeeping requirements, and monitoring. The following is a table that provides a summary of the regulatory provisions that we propose to extend to at-risk afterschool meals in the eligible States. At-Risk Afterschool Care Provisions To Include Afterschool Meals and Snacks Provision Description Eligible organizations 7 CFR 226.2 and 226.17a(a) For snacks, at-risk afterschool centers must be located in eligible areas and provide afterschool care. For meals, at-risk afterschool centers must be located in eligible areas in one of the eligible States and provide afterschool care. Restrictions on for-profit center participation 7 CFR 226.2, 226.10(c), 226.11(b)(3), 226.11(c)(4), 226.17(b)(4), 226.17a(a)(2) For-profit centers may not count at-risk children toward meeting the monthly eligibility criteria (25 percent of the children (enrolled or licensed capacity, whichever is less) must be eligible for free or reduced price meals or Title XX benefits). Eligible afterschool care programs 7 CFR 226.17a(b) The primary purpose of the eligible afterschool care program is to provide afterschool care, and it must provide education or enrichment activities. Eligible children 7 CFR 226.2, 226.17a(c) Children must be 18 and under or meet the CACFP definition of “Persons with disabilities”. Eligible area 7 CFR 226.2, 226.17a(i) Eligible area is defined as the attendance area of a school in which at least 50 percent of enrolled children are eligible for free or reduced price school meals. Licensing/approval requirements 7 CFR 226.6(d)(1), 226.17a(d) The center must be licensed or approved if required by State or local licensing authority; otherwise, it must meet State, local, or Federal health and safety requirements. Application procedures 7 CFR 226.6(b)(1), 226.17a(e) The organization must submit written application to sponsoring organization or to the State agency (if it is an independent center) and must provide documentation of area eligibility. Handling renewals or changes 7 CFR 226.6(b)(2), 226.6(f)(2)(ii), 226.6(f)(3)(ii), 226.17a(g) At-risk afterschool centers must submit changes to sponsor or State agency as appropriate and reapply every 3 years. Area eligibility is valid for 5 years, unless the State agency chooses to incorporate area eligibility decisions into the three-year application cycle. Cost of at-risk snacks and meals 7 CFR 226.17a(j) Snacks and meals must be served free of charge. Limit on daily reimbursements 7 CFR 226.17a(k) Benefits under the at-risk provisions are one at-risk snack and one at-risk meal (in eligible States) per child per day, which count toward the maximum benefit in CACFP of two meals and one snack or one meal and two snacks per child per day. Meal pattern requirements 7 CFR 226.17a(l), 226.20(b), 226.20(c) At-risk afterschool snacks and meals must meet CACFP meal pattern requirements. Time periods for meals or snacks 7 CFR 226.17a(m) A snack and/or meal is served after a child's school day. On weekends and holidays, with State agency approval, one snack may be served anytime, and in the eligible States, any one meal (breakfast, lunch, or supper) may be served. Reimbursement rates 7 CFR 226.17a(n) Centers are reimbursed at the applicable free rate for snacks or meals. Recordkeeping requirements 7 CFR 226.17a(o) In addition to other recordkeeping requirements for CACFP centers, at-risk afterschool centers must take daily attendance and count the number of snacks and/or meals served. Reporting requirements 7 CFR 226.17a(p) In addition to other reporting requirements for CACFP centers, at-risk afterschool centers must report the number of snacks and/or meals served each day. Monitoring requirements 7 CFR 226.17a(q), 226.6(m), 226.16(d)(4) Monitoring is the same as for other CACFP center-based programs. 9. What new provisions affecting at-risk meals and/or snacks are proposed in this rule? This rule proposes to add definitions at 7 CFR 226.2 for *At-risk afterschool meal* and *At-risk afterschool snack.* We propose these definitions to distinguish the snacks and meals served under the at-risk afterschool component of the Program from the meals and snacks served under the other components of the Program, such as day care homes, adult day care centers, outside-school-hours care centers, and traditional child care centers. At-risk afterschool meals and snacks must meet the same meal pattern requirements as all other meals and snacks served under the CACFP (as described at 7 CFR 226.20(a)(1) through (a)(4)). However, the at-risk meal and/or snack services differ from other meals and snacks because they are served free to all participants through age 18 and are reimbursed at the applicable free rate. At-risk afterschool meals are further distinguished from at-risk afterschool snacks by being limited to the eligible States. These distinguishing factors necessitate the need for separate definitions of at-risk snacks and at-risk meals. In addition, we propose to clarify in 7 CFR 226.17a(m) the times when an at-risk snack or meal may be served. When school is in session, at-risk afterschool care centers must serve the snack or meal after school hours. On each day of a weekend or holiday program during the regular school year, State agencies may approve reimbursement of a snack served at any time of the day and, in the eligible States, any one meal (breakfast, lunch, or supper). The prohibition of at-risk afterschool snack or meal services during summer vacation (except for centers located in the attendance area of a school operating on a year-round schedule) is unchanged. II. Procedural Matters Executive Order 12866 This proposed rule has been determined to be significant and was reviewed by the Office of Management and Budget

(OMB)under Executive Order 12866. Regulatory Impact Analysis The Regulatory Impact Analysis completed for this proposed rule is available from: Julie Brewer, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302, phone

(703)305-2590. The analysis is summarized below. Need for Action The CACFP at-risk afterschool meal component was authorized by the Agriculture Risk Protection Act of 2000 (Pub. L. 106-224), and modified by the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2002 (Pub. L. 107-76), and the Consolidated Appropriations Act, 2008 (Pub. L. 110-161). The at-risk meal component has been implemented through FNS guidelines since its creation. FNS guidelines also govern the CACFP at-risk afterschool snack component; the guidelines for the afterschool snack and meals components of CACFP are largely the same. A final rule for the afterschool snack component was published on July 31, 2007 (72 FR 41591). Relatively minor changes to the regulations as amended by that rule are needed to make the regulations fully applicable to both the snack and meal components of the at-risk afterschool care program. This rule proposes those changes. This rule also contains language that would, when published as a final rule, codify the elements of current guidelines unique to the afterschool meal component. Benefits Among the motivating factors to establish the at-risk afterschool snack program was a desire to support educational and enriching afterschool care programs for children up to 18 years of age in at-risk neighborhoods in order to reduce juvenile crime and educational underachievement. FNS cannot quantify the impact of the at-risk meals program on juvenile crime or educational achievement. However, participation in these programs is growing and thus these outcomes are to some extent fostered. In the first four years of the program, growth in afterschool meals served by the seven at-risk States eligible at that time ranged from 2 to 8 percent higher than afterschool meals served by non-participating States. However, data reported since 2004 suggests that this disparity in growth has ended, at least temporarily, and it is too soon to credit the program with a sustained long-term impact on afterschool program attendance. Although some at-risk meals served afterschool replaced meals served by outside-school-hours care centers, there is also considerable evidence that the total number of children reached by CACFP has increased, to date, as a result of this program. The percentage of at-risk meals that would have been served in traditional child care centers in the absence of the at-risk program is, of course, uncertain. However, it may be as high as 70 percent. That figure suggests that 30 percent of total at-risk participants, or roughly 37,000 children on an average school day during FY 2006, would not have received a federally-reimbursable supper if not for the at-risk program. The program benefits those 37,000 children by providing them with a meal that conforms to USDA meal patterns. In addition, all children served by the at-risk program, approximately 123,000 per day during FY 2006, benefit from the program's structured educational or enrichment elements. Costs This proposed rule would, when published as a final rule, codify guidelines governing an existing program component that started in 2001 as mandated by statute. As a result, there are no new reimbursement costs associated with the rule. The at-risk afterschool meals program cost the Federal government a total of $139.8 million in FY 2002 to FY 2006, and is projected to cost a total of $224.6 million from FY 2007 to FY 2011. Costs include both the reimbursement rate that the Federal government pays for each meal, as well as the commodity assistance given to the program. State reporting data do not clearly detail how many additional meals are being served to new participants of the at-risk afterschool meals program that would not have participated in the outside-school-hours care center program, thus the incremental costs of the at-risk meals program are likely small but cannot be determined. Regulatory Flexibility Act This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Nancy Montanez Johner, Under Secretary for Food, Nutrition, and Consumer Services, has certified that this rule will not have a significant impact on a substantial number of small entities. At-risk afterschool care centers in the eligible States choose whether they wish to participate in this additional meal service. Most of these institutions that will choose to add a meal service are already providing snacks under the at-risk component of the CACFP. The additional meal service will not have a significant paperwork or reporting burden because it is incorporated under the existing agreement and Claim for Reimbursement. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, the Department generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under regulatory provisions of Title II of the UMRA) that impose costs on State, local, or tribal governments or the private sector of $100 million or more in any one year. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA. Executive Order 12372 The Child and Adult Care Food Program is listed in the Catalog of Federal Domestic Assistance under No. 10.558. For the reasons set forth in the final rule in 7 CFR part 3015, Subpart V and related Notice published at 48 FR 29114, June 24, 1983, this Program is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials. Executive Order 13132 Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132. FNS has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a federalism summary impact statement is not required. Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule when published in final is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the Dates paragraph of the final rule. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the CACFP, the administrative procedures are set forth at 7 CFR 226.6(k), which establishes appeal procedures, and at 7 CFR 226.22, 3016, and 3019, which address administrative appeal procedures for disputes involving procurement by State agencies and institutions. Civil Rights Impact Analysis FNS has reviewed this proposed rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis” to identify and address any major civil rights impact the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that there is no negative effect on these groups. All data available to FNS indicate that protected individuals have the same opportunity to participate in the CACFP as non-protected individuals. The regulations at 7 CFR 226.6(b)(4)(iv) require that CACFP institutions agree to operate the Program in compliance with applicable Federal civil rights laws, including title VI of the Civil Rights Act of 1964, title IX of the Education amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and the Department's regulations concerning nondiscrimination (7 CFR parts 15, 15a, and 15b). At 7 CFR 226.6(m)(1), State agencies are required to monitor CACFP institution compliance with these laws and regulations. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget

(OMB)approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. Information collections in this proposed rule have been previously approved under OMB #0584-0055. There is no new burden associated with this proposed rule. E-Government Act Compliance FNS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. List of Subjects in 7 CFR Part 226 Accounting, Aged, Day care, Food assistance programs, Grant programs, Grant programs—health, American Indians, Individuals with disabilities, Infants and children, Intergovernmental relations, Loan programs, Reporting and recordkeeping requirements, Surplus agricultural commodities. Accordingly, 7 CFR part 226 is proposed to be amended as follows: PART 226—CHILD AND ADULT CARE FOOD PROGRAM 1. The authority citation for part 226 continues to read as follows: Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766). 2. In § 226.2: a. Add new definitions of “At-risk afterschool meal” and “At-risk afterschool snack” in alphabetical order; and b. Amend the last sentence of the introductory text of the definition of “For-profit center” by adding the words “and/or meal” after the words “at-risk afterschool snack”. The additions read as follows: § 226.2 Definitions. *At-risk afterschool meal* means a meal that meets the requirements described in § 226.20(b)(6) and/or (c)(1), (c)(2), or (c)(3), that is reimbursed at the appropriate free rate and is served by an *At-risk afterschool care center* as defined in this section, which is located in a State designated by law or selected by the Secretary as directed by law. *At-risk afterschool snack* means a snack that meets the requirements described in § 226.20(b)(6) and/or (c)(4) that is reimbursed at the free rate for snacks and is served by an *At-risk afterschool care center* as defined in this section. 3. In § 226.4, paragraph

(d)is amended by adding a sentence at the end of the paragraph to read as follows: § 226.4 Payments to States and use of funds.

(d)* * * For at-risk afterschool meals and at-risk afterschool snacks served to children, funds will be made available to each eligible State agency in an amount equal to the total calculated by multiplying the number of at-risk afterschool meals and the number of at-risk afterschool snacks served in the Program within the State by the national average payment rate for free meals and free snacks, respectively, under section 11 of the Richard B. Russell National School Lunch Act. § 226.9 [Amended] 4. In § 226.9, amend paragraph (b)(2) by removing the words “at-risk afterschool snack component” and adding in their place the words “at-risk afterschool care component”. 5. In § 226.10, revise the fourth sentence of the introductory text of paragraph

(c)to read as follows: § 226.10 Program payment procedures.

(c)* * * However, children who only receive at-risk afterschool snacks and/or at-risk afterschool meals must not be considered in determining this eligibility. * * * 6. In § 226.11: a. Revise the second sentence of paragraph (b)(3); b. Revise paragraph (c)(2); and c. Revise the second sentence of paragraph (c)(4). The revisions read as follows: § 226.11 Program payments for centers.

(b)* * *

(3)* * * However, children who only receive at-risk afterschool snacks and/or at-risk afterschool meals must not be considered in determining this eligibility. * * *

(c)* * *

(2)*At-risk afterschool care institutions* . Except as provided in paragraph (c)(4) of this section, State agencies must base reimbursement to each at-risk afterschool care center on the number of at-risk afterschool snacks and/or at-risk afterschool meals that are served to children.

(4)* * * However, children who only receive at-risk afterschool snacks and/or at-risk afterschool meals must not be considered in determining this eligibility. * * * 7. In § 226.17, revise the third sentence of paragraph (b)(4) to read as follows: § 226.17 Child care center provisions. (b)* * *

(4)* * * However, children who only receive at-risk afterschool snacks and/or at-risk afterschool meals must not be included in this percentage. * * * 8. In § 226.17a: a. Revise the heading of paragraph

(a)and revise paragraph (a)(1) introductory text; b. Add a new paragraph (a)(1)(v); c. Revise paragraph (a)(2); d. Revise paragraphs (c), (j), (k), (l), (m), and (n); e. Revise paragraphs (o)(2), (o)(3), and (o)(4); and f. Revise paragraph (p). The addition and revisions read as follows: § 226.17a At-risk afterschool care center provisions.

(a)*Organizations eligible to receive reimbursement for at-risk afterschool snacks and at-risk afterschool meals* .

(1)*Eligible organizations* . To receive reimbursement for at-risk afterschool snacks, organizations must meet the criteria in paragraphs (a)(1)(i) through (a)(1)(iv) of this section. To receive reimbursement for at-risk afterschool meals, organizations must meet the criteria in paragraphs (a)(1)(i) through (a)(1)(v) of this section.

(v)Organizations eligible to be reimbursed for at-risk afterschool meals must be located in one of the eligible States designated by law or selected by the Secretary as directed by law.

(2)*Limitations* .

(i)To be reimbursed for at-risk afterschool snacks and/or at-risk afterschool meals, all organizations must:

(A)Serve the at-risk afterschool snacks and/or at-risk afterschool meals to children who are participating in an approved afterschool care program; and

(B)Not exceed the authorized capacity of the at-risk afterschool care center.

(ii)In any calendar month, a for-profit center must be eligible to participate in the Program as described in the definition of For-profit center in § 226.2. However, children who only receive at-risk afterschool snacks and/or at-risk afterschool meals must not be considered in determining this eligibility.

(c)*Eligibility requirements for children.* At-risk afterschool snacks and/or at-risk afterschool meals are reimbursable only if served to children who are participating in an approved afterschool care program and who either are age 18 or under at the start of the school year or meet the definition of *Persons with disabilities* in § 226.2.

(j)*Cost of at-risk afterschool snacks and meals.* All at-risk afterschool snacks and at-risk afterschool meals served under this section must be provided at no charge to participating children.

(k)*Limit on daily reimbursements.* Only one at-risk afterschool snack and (in eligible States) one at-risk afterschool meal per child per day may be claimed for reimbursement. A center that provides care to a child under another component of the Program during the same day may not claim reimbursement for more than two meals and one snack, or one meal and two snacks, per child per day, including the at-risk afterschool snack and the at-risk afterschool meal. All meals and snacks must be claimed in accordance with the requirements for the applicable component of the Program.

(l)*Meal pattern requirements for at-risk afterschool snacks and at-risk afterschool meals.* At-risk afterschool snacks must meet the meal pattern requirements for snacks in § 226.20(b)(6) and/or (c)(4); at-risk afterschool meals must meet the meal pattern requirements for meals in § 226.20(b)(6) and/or (c)(1), (c)(2), or (c)(3).

(m)*Time periods for snack and meal services—*

(1)*At-risk afterschool snacks.* When school is in session, the snack must be served after the child's school day. With State agency approval, the snack may be served at any time on weekends and vacations during the regular school year. Afterschool snacks may not be claimed during summer vacation, unless an at-risk afterschool care center is located in the attendance area of a school operating on a year-round calendar.

(2)*At-risk afterschool meals.* When school is in session, the meal must be served after the child's school day. With State agency approval, any one meal may be served (breakfast, lunch, or supper) per day on weekends and vacations during the regular school year. Afterschool meals may not be claimed during summer vacation, unless an at-risk afterschool care center is located in the attendance area of a school operating on a year-round calendar.

(n)*Reimbursement rates.* At-risk afterschool snacks are reimbursed at the free rate for snacks. At-risk afterschool meals are reimbursed at the respective free rates for breakfast, lunch, or supper.

(o)* * *

(2)The number of at-risk afterschool snacks prepared or delivered for each snack service and/or (in eligible States) the number of at-risk afterschool meals prepared or delivered for each meal service;

(3)The number of at-risk afterschool snacks served to participating children for each snack service and/or (in eligible States) the number of at-risk afterschool meals served to participating children for each meal service; and

(4)Menus for each at-risk afterschool snack service and each at-risk afterschool meal service.

(p)*Reporting requirements.* In addition to other reporting requirements under this part, at-risk afterschool care centers must report the total number of at-risk afterschool snacks and/or (in eligible States) the total number of at-risk afterschool meals served to eligible children based on daily attendance rosters or sign-in sheets. Dated: March 18, 2008. Nancy Montanez Johner, Under Secretary, Food, Nutrition, and Consumer Services. [FR Doc. E8-6235 Filed 3-26-08; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1230 [Docket No. AMS-LS-07-0143] Pork Promotion, Research and Consumer Information Program; Section 610 Review AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice of review and request for comments. SUMMARY: This action announces the Agricultural Marketing Service's

(AMS)review of the Pork Promotion, Research, and Consumer Information Program (Program), which is conducted under the Pork Promotion, Research, and Consumer Information Order (Order), under the criteria contained in section 610 of the Regulatory Flexibility Act (RFA). DATES: Written comments on this notice must be received by May 27, 2008. ADDRESSES: Interested persons are invited to submit written comments concerning this notice of review. Comments must be sent to Kenneth R. Payne, Chief, Marketing Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2628-S, STOP 0251, 1400 Independence Avenue, SW., Washington, DC 20250-0251; Fax:

(202)720-1125; or, online at *www.regulations.gov* . All comments should reference the docket number, the date, and the page number of this issue of the **Federal Register** . Comments will be available for public inspection via the internet at *www.regulations.gov* or during regular business hours at the address above. FOR FURTHER INFORMATION CONTACT: Kenneth R. Payne, Chief, Marketing Programs Branch; Telephone:

(202)720-1115; Fax:

(202)720-1125, or E-mail *Kenneth.Payne@usda.gov* . SUPPLEMENTARY INFORMATION: The Order (7 CFR part 1230) is authorized under the Pork Promotion, Research, and Consumer Information Act of 1985

(Act)(7 U.S.C. 4801 *et seq.* ). As part of a comprehensive strategy to strengthen the pork industry's position in the marketplace, this national pork program maintains and expands existing domestic and foreign markets and develops new markets for pork and pork products. The program is funded by a mandatory assessment of $0.40 per-hundred-dollars of market value. All producers owning and marketing swine, regardless of the size of their operation or the value of their swine, must pay the assessment. A comparable assessment is collected on all imported swine, pork, and pork products. Assessments collected under this program are used for promotion, research, consumer information, and industry information. The national program is administered by the National Pork Board (Board), which is composed of 15 producer members. Board members serve 3-year terms, but no individual may serve more than two consecutive 3-year terms. Producer members are selected by the National Pork Producers Delegate Body, a group of 163 producer and importer members that represent all 50 States and importers. The program became effective on September 5, 1986, when the Order was issued. Assessments began on November 1, 1986. On February 18, 1999, AMS published in the **Federal Register** (64 FR 8014) its plan to review certain regulations. On January 4, 2002, AMS published in the **Federal Register** (67 FR 525) an update to its plan to review regulations, including the Pork Promotion and Research Program, which is conducted under the Order, under criteria contained in section 610 of the RFA (5 U.S.C. 601-612). Because many AMS regulations impact small entities, AMS decided, as a matter of policy, to review certain regulations that, although may not meet the threshold requirement under section 610 of the RFA, warrant review. Accordingly, this notice and request for comments concerns the Order. The purpose of the review is to determine whether the Order should continue without change or whether it should be amended or rescinded (consistent with the objectives of the Act) to minimize the impact on small entities. AMS will consider the following factors:

(1)The continued need for the Order;

(2)The nature of complaints or comments received from the public concerning the Order;

(3)the complexity of the Order;

(4)the extent to which the Order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and

(5)the length of time since the Order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the Order. Written comments, views, opinions, and other information regarding the Order's impact on small businesses are invited. Dated: March 21, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-6246 Filed 3-26-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0362; Directorate Identifier 2007-NM-308-AD] RIN 2120-AA64 Airworthiness Directives; Dornier Model 328-100 and -300 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: At least one incident has occurred where, immediately after take-off, the passenger door of a Dornier 328 completely opened. * * * Substantial damage to the door, handrails, door hinge arms and fuselage skin were found. * * * Although final proof could not be obtained, the most likely way in which the door opened was that the door handle was inadvertently operated during the take-off run. [T]his Airworthiness Directive

(AD)aims to prevent further incidents of inadvertent opening and possible detachment of a passenger door in-flight, likely resulting in damage to airframe and systems and, under less favorable circumstances, loss of control of the aircraft. 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 April 28, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*

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

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

(425)227-2125; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0362; Directorate Identifier 2007-NM-308-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0199, dated July 25, 2007 (corrected July 26, 2007; referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: At least one incident has occurred where, immediately after take-off, the passenger door of a Dornier 328 completely opened. The flight crew reportedly had no cockpit indication or audible chime prior to this event. The aircraft returned to the departure airfield and made an uneventful emergency landing. Substantial damage to the door, handrails, door hinge arms and fuselage skin were found. The subsequent investigation could not find any deficiency in the design of the main cabin door locking mechanism. In addition, no technical failure could be determined that precipitated the event. The flight data recorder showed that the door was closed and locked before take-off and opened shortly afterward. Although final proof could not be obtained, the most likely way in which the door opened was that the door handle was inadvertently operated during the take-off run. In response to the incident, AvCraft (the TC (type certificate) holder at the time) developed a placard set to warn the occupants against touching the door handle, as well as a structural modification of the passenger door hinge supports to make certain that the door does not separate from the aircraft when inadvertently opened during flight, allowing a safe descent and landing. Although the event described above did not prevent the flight crew from landing the aircraft safely, the condition of the aircraft immediately after the opening of the door has been determined to have been unsafe. [T]his Airworthiness Directive

(AD)aims to prevent further incidents of inadvertent opening and possible detachment of a passenger door in-flight, likely resulting in damage to airframe and systems and, under less favorable circumstances, loss of control of the aircraft. Corrective actions include installing warning placards on the doors, and doing a modification that includes replacing the hinge supports and support struts of the passenger doors with new, improved hinge supports and support struts. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information AvCraft Aerospace GmbH has issued the service information described in the following table. Service Information AvCraft Dornier Service Bulletin Dated SB-328-11-454 May 3, 2004. SB-328-52-460 February 4, 2005. SB-328J-11-209 May 3, 2004. SB-328J-52-213 February 4, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 106 products of U.S. registry. We also estimate that it would take about 38 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $11,961 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,590,106, or $15,001 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **328 Support Services GmbH (Formerly AvCraft Aerospace GmbH):** Docket No. FAA-2008-0362; Directorate Identifier 2007-NM-308-AD. Comments Due Date

(a)We must receive comments by April 28, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Dornier Model 328-100 airplanes, having serial numbers (S/Ns) 3005 through 3098, 3100, 3101, 3106, 3107, 3109, 3110, 3112, 3113, 3115, 3117 and 3119; and Model 328-300 airplanes, having S/Ns 3102, 3105, 3108, 3111, 3114, 3116, 3118, and 3120 through 3224; certificated in any category. Subject

(d)Air Transport Association

(ATA)of America Code 11: Placards and Markings; and Code 52: Doors. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: At least one incident has occurred where, immediately after take-off, the passenger door of a Dornier 328 completely opened. The flight crew reportedly had no cockpit indication or audible chime prior to this event. The aircraft returned to the departure airfield and made an uneventful emergency landing. Substantial damage to the door, handrails, door hinge arms and fuselage skin were found. The subsequent investigation could not find any deficiency in the design of the main cabin door locking mechanism. In addition, no technical failure could be determined that precipitated the event. The flight data recorder showed that the door was closed and locked before take-off and opened shortly afterward. Although final proof could not be obtained, the most likely way in which the door opened was that the door handle was inadvertently operated during the take-off run. In response to the incident, AvCraft (the TC (type certificate) holder at the time) developed a placard set to warn the occupants against touching the door handle, as well as a structural modification of the passenger door hinge supports to make certain that the door does not separate from the aircraft when inadvertently opened during flight, allowing a safe descent and landing. Although the event described above did not prevent the flight crew from landing the aircraft safely, the condition of the aircraft immediately after the opening of the door has been determined to have been unsafe. [T]his Airworthiness Directive

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

(1)Within 30 days after the effective date of this AD, install warning placards on the inside of the passenger door and service doors, in accordance with AvCraft Dornier Service Bulletin SB-328-11-454 (for Model 328-100 airplanes) or SB-328J-11-209 (for Model 328-300 airplanes), both dated May 3, 2004, as applicable.

(2)Within 12 months after the effective date of this AD, modify the hinge supports and support struts of the passenger doors, in accordance with the Accomplishment Instructions of AvCraft Dornier Service Bulletin SB-328-52-460 (for Model 328-100 airplanes) or SB-328J-52-213, (for Model 328-300 airplanes), both dated February 4, 2005, as applicable. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, 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: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2125; fax

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

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

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

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

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

(h)Refer to MCAI European Aviation Safety Agency

(EASA)Airworthiness Directive 2007-0199, dated July 25, 2007 (corrected July 26, 2007), and the service bulletins described in Table 1 of this AD, for related information. Table 1.—Service Information AvCraft Dornier Service Bulletin Dated SB-328-11-454 May 3, 2004. SB-328-52-460 February 4, 2005. SB-328J-11-209 May 3, 2004. SB-328J-52-213 February 4, 2005. Issued in Renton, Washington, on March 20, 2008. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-6296 Filed 3-26-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0363; Directorate Identifier 2008-NM-020-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: This assessment showed that the electrical harness of the Fuel Quantity Gauging System

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

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Richard Fiesel, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone

(516)228-7304; fax

(516)794-5531. 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-2008-0363; Directorate Identifier 2008-NM-020-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2007-36, dated December 21, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Bombardier Aerospace has completed a system safety review of the CL-600-2B19 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment

(NPA)2002-043. The identified non-compliances were assessed using Transport Canada Policy Letter No. 525-001, to determine if mandatory corrective action is required. This assessment showed that the electrical harness of the Fuel Quantity Gauging System

(FQGS)is installed in the same routing as the 28 Volts AC, 28 Volts DC, and 115 Volts AC electrical harnesses. A chafing condition between these electrical harnesses and the FQGS harness could increase the surface temperatures of fuel quantity probes and high level sensors inside the fuel tank, resulting in potential ignition source[s] and consequent fuel tank explosion. To correct the unsafe condition, this directive mandates the modification of FQGS electrical harness routing. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation Number 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate

(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information Bombardier has issued Service Bulletin 601R-28-059, Revision E, dated October 29, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 709 products of U.S. registry. We also estimate that it would take about 83 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $15,552 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $15,734,128, or $22,192 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Bombardier, Inc. (Formerly Canadair):** Docket No. FAA-2008-0363; Directorate Identifier 2008-NM-020-AD. Comments Due Date

(a)We must receive comments by April 28, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes; certificated in any category; serial numbers 7003 through 7067 inclusive, and 7069 through 7982 inclusive. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Bombardier Aerospace has completed a system safety review of the CL-600-2B19 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment

(f)Within 10,000 flight hours after the effective date of this AD, unless already done, do the following actions.

(1)Modify the FQGS harness routing according to the Accomplishment Instructions of Bombardier Service Bulletin 601R-28-059, Revision E, dated October 29, 2007.

(2)Actions done before the effective date of this AD in accordance with the Bombardier Service Information specified in Table 1 of this AD are acceptable for compliance with the corresponding requirements of this AD. Table 1.—Service Information Service Bulletin No. Revision Date 601R-28-059 Original October 19, 2004. 601R-28-059 A July 28, 2005. 601R-28-059 B November 17, 2005. 601R-28-059 C March 8, 2007. 601R-28-059 D May 10, 2007. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office (ACO), 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: Richard Fiesel, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone

(516)228-7304; fax

(516)794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

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

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

(h)Refer to MCAI Canadian Airworthiness Directive CF-2007-36, dated December 21, 2007, and Bombardier Service Bulletin 601R-28-059, Revision E, dated October 29, 2007, for related information. Issued in Renton, Washington, on March 18, 2008. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-6299 Filed 3-26-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 080302355-8413-01] RINs 0648 AT14, 0648 AT15, 0648 AT16 Office of National Marine Sanctuaries Regulations AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Proposed rule. SUMMARY: The National Oceanic and Atmospheric Administration

(NOAA)previously published proposed revised management plans, revised Designation Documents, and revised regulations for the Cordell Bank National Marine Sanctuary (CBNMS), Gulf of the Farallones National Marine Sanctuary (GFNMS), and Monterey Bay National Marine Sanctuary (MBNMS). The currently pending proposed regulations would revise and provide greater clarity to existing regulations. After reviewing public comments on the proposed rules, including a request from the California State Water Resources Control Board to prohibit discharges from certain vessels in national marine sanctuaries offshore of California, and further analyzing vessel discharge issues, NOAA now proposes additional discharge regulations for the CBNMS, GFNMS, and MBNMS consistent with the request of the California State Water Resources Control Board. This proposed rule would prohibit discharge of treated waste from vessels 300 gross registered tons

(GRT)or more with sufficient holding tank capacity to hold treated sewage while within the sanctuary and limit the exception for graywater discharges to vessels less than 300 GRT, and vessels 300 GRT or more without sufficient holding tank capacity to hold graywater while within the MBNMS. DATES: Comments will be considered if received by May 9, 2008. ADDRESSES: Written comments should be sent by mail to: Sean Morton, JMPR Management Plan Coordinator, NOAA's Office of National Marine Sanctuaries, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to: *jointplancomments@noaa.gov,* or by fax to

(301)713-0404. Copies of the DMP/DEIS are available from the same address and on the Web at: *http://www.sanctuaries.nos.noaa.gov/jointplan.* Comments can also be submitted to the Federal e-Rulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Sean Morton, NOAA Office of National Marine Sanctuaries, 301-713-7264 or *sean.morton@noaa.gov.* SUPPLEMENTARY INFORMATION: Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434 *et seq.* ) (NMSA), the ONMS conducted a review of the management plans for the CBNMS, GFNMS, and MBNMS. The review resulted in proposed new management plans for the sanctuaries, some proposed revisions to existing regulations, some proposed new regulations, and some proposed changes to the designation documents. Certain discharges or deposits of material or other matter from within or into the sanctuaries from vessels in general and certain discharges or deposits from cruise ships were among regulations proposed for modification or addition. For the CBNMS, proposed new regulations (71 FR 59039, October 6, 2006) included prohibitions on: • Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship, except vessel engine and generator cooling water. For the CBNMS, proposed revisions to existing regulations (71 FR 59039, October 6, 2006) would: • Clarify that discharges/deposits allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices and all vessel operators are required to lock all marine sanitation devices in a manner that prevents discharge of untreated sewage; • Remove an exception for discharging or depositing food waste resulting from meals on board vessels; and • Revise language for discharges and deposits from beyond the boundary of the sanctuary that subsequently enter the Sanctuary and injure Sanctuary resources. For the GFNMS, proposed new regulations (71 FR 59338, October 6, 2006) included prohibitions on: • Discharging or depositing from within or into the sanctuary any material or other matter from a cruise ship, except vessel engine and generator cooling water; and • Discharging or depositing, from beyond the boundary of the sanctuary, any material or other matter that subsequently enters the sanctuary and injures a sanctuary resource or quality. For the GFNMS, proposed revisions to existing regulations (71 FR 59338, October 6, 2006) would: • Clarify that discharges/deposits allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices, and that the vessel operators are required to lock all marine sanitation devices in a manner that prevents discharge of untreated sewage; and • Remove exceptions to the discharging or depositing prohibition that pertain to discharge of municipal sewage. For the MBNMS, proposed new regulations (71 FR 59050, October 6, 2006) included prohibitions on: • Discharging or depositing any material or other matter from a cruise ship other than vessel engine cooling water, vessel generator cooling water, or anchor wash. For the MBNMS, proposed revisions to existing regulations (71 FR 59050, October 6, 2006) would: • Clarify that discharges/deposits allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices and that vessel operators are required to lock all marine sanitation devices in a manner that prevents discharge of untreated sewage; • Clarify that the prohibition against discharges/deposits applies to discharges/deposits both within and into the sanctuary; • Clarify that discharges/deposits resulting from cruise ship generator cooling water, anchor wash, and clean bilge water (defined as not containing detectable levels of harmful matter) are excepted from the cruise ship discharge/deposit prohibition. NOAA published these proposals in 2006 in the CBNMS, GFNMS, and MBNMS Draft Management Plans

(DMPs)and Draft Environmental Impact Statement (DEIS), available online at: *http://sanctuaries.noaa.gov/jointplan/.* On October 6, 2006 NOAA issued notices of availability of the DMPs and DEIS, and published the associated proposed rules. With regard to vessel discharges/deposits from marine sanitation devices, NOAA's proposed action only allowed discharges from Type I and Type II marine sanitation devices and required vessel operators to lock marine sanitation devices in a manner preventing discharge of untreated sewage. NOAA's proposed action prohibited most discharges/deposits from within or into the sanctuaries from cruise ships. After receiving comments on the DEIS and proposed rules, in particular from the California State Water Resources Control Board, NOAA proposes to expand the range of vessels subject to the discharge requirements to better address potential impacts of sewage and graywater discharges from large vessels other than cruise ships. The impact of the regulations is within the range of the alternatives discussed in the original DEIS. Additional analysis related to these proposed regulations is included in Supplemental Draft Environmental Impact Statement (SDEIS). Background NOAA distributed the draft management plans and DEIS, and published the proposed rules, on October 6, 2006 and accepted comments through January 5, 2006. During public review, NOAA received a wide range of comments, including substantial public and agency comments about changes proposed for sanctuary regulation of sewage and graywater discharges/deposits from vessels of 300 GRT or more. Comments included a request that NOAA expand the cruise ship discharge regulation to prohibit sewage discharges from other large vessels. In addition, comments from California state agencies and environmental non-governmental organizations indicated that NOAA's proposed exception for graywater discharges is inconsistent with the California Clean Coast Act (California Public Resources Code sec. 72420-72422) prohibiting graywater discharges from vessels 300 GRT or more within state waters. On May 11, 2007, NOAA also received a request from the California State Water Resources Control Board to prohibit discharges from certain vessels in national marine sanctuaries offshore of California. The California Clean Coast Act requires the State Water Resources Control Board to request the appropriate federal agencies to prohibit the release of wastes from cruise ships and oceangoing ships into state marine waters and the four national marine sanctuaries in California. The request referenced the California Clean Coast Act [California Senate Bill 771 (Chapter 588, Statutes of 2006)], and specifically requested NOAA prohibit release from large passenger vessels (cruise ships) and other oceangoing ships (300 gross tons or more) of hazardous waste, oily bilgewater, other waste, and sewage sludge into the marine waters of the state and marine sanctuaries. These proposed rules include prohibitions consistent with the request from the State of California for the CBNMS, GFNMS, and MBNMS. Existing or currently pending regulations published in October 2006 (71 FR 59039, 71 FR 59050, 71 FR 59338) already prohibit discharge of hazardous waste, oil bilge water and sewage sludge. The revised proposed discharge/deposit regulations:

(1)Provide an exception for treated sewage discharges only applicable to vessels less than 300 GRT, and vessels greater than 300 GRT without sufficient holding tank capacity to hold sewage while within the sanctuary and

(2)provide an exception for graywater discharges applicable to vessels less than 300 GRT, and vessels 300 GRT or more without sufficient holding tank capacity to hold graywater while within the MBNMS. Discharge of graywater is already prohibited, without exception, in the CBNMS and GFNMS. The graywater discharge exception for vessels without sufficient holding tank capacity to hold graywater while within the MBNMS is proposed because many vessels are designed without the ability to retain graywater, and as such must discharge graywater directly as it is produced. Some vessels mix graywater with untreated sewage where it is treated in the vessel marine sanitation device (MSD). If graywater is retained in an MSD and, consequently, mixed with any sewage, it is considered blackwater. The primary purpose of these revised regulations is to reduce potentially harmful effects of large-vessel sewage and graywater discharges on sanctuary qualities and resources. The revisions described herein affect two of the exceptions to the prohibition on discharging or depositing material or other matter into the sanctuary: the exception for treated sewage for the CBNMS, GFNMS, and MBNMS, and the exception for biodegradable matter including sewage for the MBNMS. Proposed revisions would result in substantive changes regarding sewage and graywater. NOAA will publish any final regulations for the CBNMS, GFNMS, and MBNMS after reviewing all comments to the currently pending proposed rules and this proposed rule. Environment The CBNMS protects an area of 526 square miles (399 square nautical miles) off the northern California coast. The main feature of the Sanctuary is Cordell Bank, an offshore granite bank located on the edge of the continental shelf, about 43 nautical miles

(nmi)northwest of the Golden Gate Bridge and 20 nmi west of the Point Reyes lighthouse. CBNMS is entirely offshore and shares its southern and eastern boundary with the GFNMS. The CBNMS eastern boundary is six miles from shore and the western boundary is the 1000 fathom isobath on the edge of the continental slope. CBNMS is located in one of the world's four major coastal upwelling systems. The combination of oceanic conditions and undersea topography provides for a highly productive environment in a discrete, well-defined area. The vertical relief and hard substrate of the Bank provide benthic habitat with near-shore characteristics in an open ocean environment 20 nmi from shore. The Cordell Bank National Marine Sanctuary was established in 1989 to protect and preserve the extraordinary ecosystem, including marine birds, mammals, and other natural resources of Cordell Bank and its surrounding waters. The GFNMS lies off the coast of California, to the west and north of San Francisco. The GFNMS is composed of offshore waters extending out to and around the Farallon Islands and nearshore waters (up to the mean high tide line) from Bodega Head to Rocky Point in Marin. The GFNMS is characterized by the widest continental shelf on the west coast of the contiguous United States. In the Gulf of the Farallones, the shelf reaches a width of 32 nautical miles (59 km). Shoreward of the Farallon Islands, the continental shelf is a relatively flat sandy/muddy plain, which slopes gently to the west and north from the mainland shoreline. The Farallon Islands lie along the outer edge of the continental shelf, between 13 and 19 nautical miles (24 and 35 km) southwest of Point Reyes and approximately 26 nautical miles (48 km) due west of San Francisco. In addition to sandy beaches, rocky cliffs, small coves, and offshore stacks, the GFNMS includes open bays (Bodega Bay, Drakes Bay) and enclosed bays or estuaries (Bolinas Lagoon, Tomales Bay, Estero Americano, and Estero de San Antonio). The Gulf of the Farallones National Marine Sanctuary was established in 1981 to protect and preserve this unique and fragile ecological community. The MBNMS is located offshore of California's central coast, adjacent to and south of the GFNMS. It encompasses a shoreline length of approximately 268 miles between Marin in Marin County and Cambria in San Luis Obispo County and approximately 4,016 square nautical miles of ocean and coastal waters, and the submerged lands thereunder, extending an average distance of 30 miles from shore. Supporting some of the world's most diverse marine ecosystems, it is home to numerous mammals, seabirds, fishes, invertebrates, and plants in a remarkably productive coastal environment. The MBNMS was established in 1992 for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. According to Lloyds Maritime Information Services, in 2000, 3,575 cargo vessels called at ports on San Francisco Bay, including 1,936 container vessels, 787 tankers, 626 dry bulk vessels, and 226 other types (Bureau of Transportation Statistics 2002). Approximately half of these vessels transit south off the coast of California, while the other half transit north or west of San Francisco. Data from the U.S. Army Corps of Engineers show a similar level of movement, with approximately 3,600 vessels (including foreign and domestic vessels, tugs, and barges) entering San Francisco Bay from the Pacific Ocean each year (USACE 2002a). In addition, approximately 3,000 large vessels transit along the northern/central California coast every year (Pacific States/British Columbia Oil Spill Task Force 2002), passing through the three sanctuaries. Summary of the Proposed Regulatory Amendments Regulation of Vessel Sewage The proposed regulations would revise the prohibition to address sewage discharges/deposits from within or into the CBNMS, GFNMS, and MBNMS from vessels of 300 GRT or more. The prohibitions would only apply to vessels with sufficient holding tank capacity to hold sewage while within the sanctuary. The revised regulations would better address NOAA's concerns about possible impacts from large volumes of treated sewage discharges within the sanctuaries from large vessels in addition to cruise ships. Untreated sewage discharges are prohibited within the national marine sanctuaries. Vessel sewage discharges are more concentrated than domestic land-based sewage. They may contain bacteria or viruses that can cause disease in humans and wildlife, may contain high concentrations of nutrients that can lead to eutrophication (the process that can cause oxygen-depleted “dead zones” in aquatic environments), and may yield unpleasant esthetic impacts to the sanctuary environment (diminishing sanctuary resources and their ecological, conservation, esthetic, recreational and other qualities). Large vessels may have either Type II marine sanitation devices

(MSDs)that treat sewage, or Type III MSDs that hold sewage until it can be legally pumped out or discharged. In 2006, approximately 75% of the large oceangoing vessels that called on California ports were using a Type II MSD. While these devices are designed to lower fecal coliform bacteria counts (to a standard of 200 fecal coliform per 100 milliliter of sample) and reduce total suspended solids (to a standard of 150 milligrams per liter), studies in Alaska of cruise ship wastewater discharges have shown high rates of failure in the ability of conventional MSDs to meet legal discharge standards (Alaska Department of Environmental Conservation 2004). Furthermore, monitoring and testing of MSD discharges (outside of Alaska) is not legally required of large vessel operators, so reductions in treatment effectiveness may go undetected. Regulation of Vessel Graywater The proposed action would also amend the exception to the prohibition on discharging or depositing graywater from within or into the MBNMS. The revised regulation would provide an exception for discharging or depositing graywater from vessels less than 300 GRT, and vessels 300 GRT or greater without sufficient holding tank capacity to hold graywater while within the MBNMS. The revised regulation would better address NOAA's concerns about the potential impacts of graywater discharges from large vessels in the MBNMS. Graywater from vessels includes wastewater from showers, baths, and galleys. Graywater can contain a variety of substances including (but not limited to) detergents, oil and grease, pesticides and food wastes (Eley 2000). Very little research has been done on the impacts of graywater on the marine environment, but many of the chemicals commonly found in graywater are known to be toxic (Casanova *et al.* 2001). These chemicals have been implicated in the occurrence of cancerous growths in bottom-dwelling fish (Mix 1986). Furthermore, studies of graywater discharges from large cruise ships in Alaska (prior to strict state effluent standards for cruise ship graywater discharges) found very high levels of fecal coliform in large cruise ship graywater (well exceeding the federal standards for fecal coliform from Type II MSDs). These same studies also found high mean total suspended solids in some graywater sources (exceeding the federal standards for total suspended solids from Type II MSDs). In summary, the revised proposed discharge regulations would prohibit the following discharges:

(1)Within or into the CBNMS, GFNMS, and MBNMS all treated sewage/deposits from vessels 300 GRT or more with sufficient holding tank capacity to hold sewage while within the sanctuary and

(2)within or into the MBNMS, all graywater from vessels 300 GRT or more with sufficient holding tank capacity to hold graywater while within the MBNMS. Miscellaneous Rulemaking Requirements National Environmental Policy Act NOAA has prepared a Supplemental Draft Environmental Impact Statement (SDEIS) to evaluate the proposed revisions to the discharge/deposit regulations analyzed in the DEIS. Copies are available at the address and Web site listed in the Addresses section of this proposed rule. Responses to comments received on this proposed rule will be published in the Final Environmental Impact Statement and preamble to the final rule. Executive Order 12866: Regulatory Impact This proposed rule has been determined to be not significant within the meaning of Executive Order 12866. Executive Order 13132: Federalism Assessment NOAA has concluded this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 12612. The ONMS consulted with a number of entities within the State who participated in development of this proposed rule, including but not limited to the California Coastal Commission, California Regional Water Quality Control Board, California Department of Fish and Game, and California Resources Agency. Regulatory Flexibility Act The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows: Based primarily on recent socioeconomic studies, and on-site surveys of visitor use, NMSP has identified the following small entities as defined by the Regulatory Flexibility Act. Small business concerns operating within the CBNMS, GFNMS, and MBNMS (sanctuaries) include over 500 commercial fishing operations, six mariculture operations, more than 30 consumptive recreational charter businesses, over 30 non-consumptive recreational charter businesses, approximately 3 motorized personal watercraft businesses, and approximately 10 marine salvage companies. Small organizations operating within the sanctuaries include non-governmental organizations

(NGOs)and/or non-profit organizations

(NPOs)dedicated to environmental education, research, restoration, and conservation concerning marine and maritime heritage resources. There are approximately 50 small organizations active in the sanctuaries including non-profit organizations

(NPOs)involved in education, research, restoration, and conservation activities. Cambria, Carmel-by-the-Sea, Pacific Grove, City of Monterey, City of Seaside, Del Rey Oaks, Marina, Castroville, Pajaro, Soquel, Capitola, Rio Del Mar, Aptos, Pacifica, Half Moon Bay, San Mateo County Harbor District, Santa Cruz Port District and Moss Landing Harbor District would qualify as “small governmental jurisdictions” directly adjacent to the sanctuaries. The proposed modifications to the sanctuaries' discharge/deposit regulation prohibiting waste discharges from vessels 300 GRT or greater is applicable to any small entities that operate vessels of this size in the Sanctuary. However, no small entities among those identified above operate vessels 300 GRT or more within the sanctuaries. Because this action would not have a significant economic impact on a substantial number of small entities, no initial regulatory flexibility analysis is required, and none was prepared. Request for Comments NOAA requests comments on this proposed rule concerning vessel discharges and deposits of sewage and graywater, which supplements the currently pending proposed rules published on October 2006 (71 FR 59039, 71 FR 59050, 71 FR 59338). List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Boats and Boating safety, Coastal zone, Education, Environmental protection, Fish, Harbors, Marine mammals, Marine pollution, Marine resources, Marine safety, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Research, Water pollution control, Water resources, Wildlife. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: March 21, 2008. Steve Kozak, Chief of Staff for Ocean Services and Coastal Zone Management. Accordingly, for the reasons set forth above, 15 CFR part 922 is proposed to be amended as follows: PART 922—[AMENDED] 1. The authority citation for part 922 continues to read as follows: Authority: 16 U.S.C. 1431 *et seq.* 2. In § 922.82 revise paragraphs (a)(2) introductory text and (a)(2)(ii) to read as follows: § 922.82 Prohibited or otherwise regulated activities. (a)* * *

(2)Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:

(ii)For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, biodegradable effluents incidental to vessel use and generated by: An operable Type I or II marine sanitation device (U.S. Coast Guard classification) that is approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage; 3. In § 922.111 revise paragraphs (a)(1)(i) introductory text and (a)(1)(i)(B) to read as follows: § 922.111 Prohibited or otherwise regulated activities.

(a)* * *

(1)* * *

(i)Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:

(B)For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, biodegradable effluents incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage; 4. In § 922.132 revise paragraphs (a)(2)(i) introductory text and (a)(2)(i)(B) through (E), and add paragraph (a)(2)(i)(F) to read as follows: § 922.132 Prohibited or otherwise regulated activities.

(a)* * * (2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter, except:

(B)For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, biodegradable effluent incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;

(C)Biodegradable vessel deck wash down, vessel engine cooling water, vessel generator cooling water, anchor wash, clean bilge water (meaning not containing detectable levels of harmful matter as defined);

(D)For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold graywater while within the Sanctuary, graywater as defined by section 312 of the FWPCA that is biodegradable;

(E)Vessel engine or generator exhaust; or

(F)Dredged material deposited at disposal sites authorized by the U.S. Environmental Protection Agency

(EPA)(in consultation with the U.S. Army Corps of Engineers (COE)) prior to the effective date of Sanctuary designation (January 1, 1993), provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on January 1, 1993. Authorized disposal sites within the Sanctuary are described in appendix C to this subpart. [FR Doc. E8-6189 Filed 3-26-08; 8:45 am] BILLING CODE 3510-NK-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 358 [Docket No. RM07-1-000] Standards of Conduct for Transmission Providers March 21, 2008. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice of Proposed Rulemaking. SUMMARY: The Federal Energy Regulatory Commission (Commission) is proposing to revise its Standards of Conduct for transmission providers to make them clearer and to refocus the rules on the areas where there is the greatest potential for affiliate abuse. By doing so, we will make compliance less elusive and facilitate Commission enforcement. We also propose to conform the Standards to the decision of the U.S. Court of Appeals for the D.C. Circuit in *National Fuel Gas Supply Corporation* v. *FERC* , 468 F.3d 831 (D.C. Cir. 2006). On January 18, 2007, the Commission issued a Notice of Proposed Rulemaking (initial NOPR), and received both initial and reply comments from interested persons. After giving consideration to these comments and to our own experience in enforcing the Standards, the Commission believes it to be necessary and appropriate to modify the approach proposed in the initial NOPR. The Commission is therefore issuing a new NOPR, and invites all interested persons to submit comments in response to the regulations proposed herein. DATES: Comments are due May 12, 2008. ADDRESSES: You may submit comments, identified by docket number by any of the following methods: • *Agency Web Site: http://ferc.gov.* Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. • *Mail/Hand Delivery:* Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. FOR FURTHER INFORMATION CONTACT: Kathryn Kuhlen, Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, *Kathryn.Kuhlen@FERC.gov* ,

(202)502-6855. Table of Contents Paragraph No. I. Introduction 1 II. Background 6 III. Discussion 11 A. The Need for Reform 11 B. The Independent Functioning Rule 22 C. The No Conduit Rule 46 D. The Transparency Rule 50 E. Miscellaneous 56 IV. Applicability of the Proposed Rule and Compliance Procedures 65 V. Information Collection Statement 67 VI. Environmental Analysis 73 VII. Regulatory Flexibility Act 74 VIII. Comment Procedures 75 IX. Document Availability 79 Appendix A: Table of Commenters and Abbreviations for Commenters Appendix B: Comparison of Current and Proposed Regulatory Text I. Introduction 1. The Federal Energy Regulatory Commission is proposing to reform its Standards of Conduct for Transmission Providers. The primary purpose of our proposed reforms is to strengthen the Standards by making them clearer and by refocusing the rules on the areas where there is the greatest potential for affiliate abuse. By doing so, we also will make compliance less elusive and subjective for regulated entities, and facilitate enforcement of the Standards by the Commission. We also propose to reform our regulations to comply with the U.S. Court of Appeals for the D.C. Circuit decision in *National Fuel Gas Supply Corp.* v. *FERC* , 468 F.3d 831 (D.C. Cir. 2006). 2. On January 18, 2007, the Commission issued a Notice of Proposed Rulemaking (initial NOPR) to modify the Standards. The primary purpose of the initial NOPR was to remedy the defects identified by the D.C. Circuit in *National Fuel,* particularly the court's rejection of the Standards' treatment of Energy Affiliates of natural gas pipelines. The Commission also sought to remedy other specific flaws in the Standards, such as by removing impediments to integrated resource planning. In proposing these reforms we did not, however, undertake a broader review of the Standards to determine whether they were continuing to prevent affiliate abuse in the manner most likely to foster compliance and enhance enforcement. Based on comments received on the NOPR, as well as the comments received at our recent enforcement conference, 1 we now believe that such a broader review is necessary. We therefore propose further reforms herein and seek comment on them from all interested persons. 1 Conference on Enforcement Policy, Docket No. AD07-13-000 (Nov. 16, 2007) (enforcement conference). 3. Our revised NOPR proposes to combine the best elements of the Standards adopted in Order Nos. 497 and 889 with those adopted by the Commission in Order No. 2004. 2 Order Nos. 497 3 and 889 4 established a functional separation between transmission and merchant personnel for natural gas and electric transmission providers that was relatively clear and that worked well for many years. Order No. 2004 altered this approach in three main ways:

(i)First, to expand the scope of the Standards to include Energy Affiliates,

(ii)second, to adopt a corporate separation approach to accommodate the addition of Energy Affiliates, and

(iii)third, to adopt a single set of standards applicable to both natural gas and electric industries. The *National Fuel* court rejected the first reform as applied to the natural gas industry and, by doing so, undercut the need for the second reform. The court did not upset the third reason for reform and we continue to believe there is no reason why separate standards should apply to each industry, although our proposed regulations do take into account differences between the industries in discrete areas. 2 *Standards of Conduct for Transmission Providers* , Order No. 2004, FERC Stats. & Regs., Regulations Preambles 2001-2005 ¶ 31,155 (2003), *order on reh'g* , Order No. 2004-A, FERC Stats. & Regs., Regulations Preambles 2001-2005 ¶ 31,161 (2004), *order on reh'g* , Order No. 2004-B, FERC Stats. & Regs., Regulations Preambles 2001-2005 ¶ 31,166 (2004), *order on reh'g* , Order No. 2004-C, FERC Stats. & Regs., Regulations Preambles 2001-2005 ¶ 31,172 (2004), *order on reh'g* , Order No. 2004-D, 110 FERC ¶ 61,320 (2005), *vacated and remanded as it applies to natural gas pipelines* sub nom. *Nat'l Fuel Gas Supply Corporation* v. *FERC* , 468 F.3d 831 (D.C. Cir. 2006); *Standards of Conduct for Transmission Providers* , Order No. 690, 72 FR 2427 (Jan. 19, 2007), FERC Stats. & Regs ¶ 31,237 *, order on reh'g,* Order No. 690-A, 72 FR 14235 (Mar. 27, 2007), FERC Stats. & Regs. ¶ 31,243 (2007); *see also Standards of Conduct for Transmission Providers,* Notice of Proposed Rulemaking, 72 FR 3958 (Jan. 29, 2007), FERC Stats. & Regs. ¶ 32,611 (2007). 3 *Inquiry Into Alleged Anticompetitive Practices Related to Marketing Affiliates of Interstate Pipelines,* Order No. 497, 53 FR 22139 (1988), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,820 (1988); Order No. 497-A, *order on reh'g* , 54 FR 52781 (1989), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,868 (1989); Order No. 497-B, *order extending sunset date* , 55 FR 53291 (1990), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,908 (1990); Order No. 497-C, *order extending sunset date,* 57 FR 9 (1992), FERC Stats. & Regs., Regulations Preambles 1991-1996 ¶ 30,934 (1991), *reh'g denied* , 57 FR 5815 (1992), 58 FERC ¶ 61,139 (1992); *aff'd in part and remanded in part sub nom. Tenneco Gas* v. *FERC* , 969 F.2d 1187 (D.C. Cir. 1992) (collectively, Order No. 497). 4 *Open Access Same-Time Information System (Formerly Real-Time Information Network) and Standards of Conduct,* Order No. 889, 61 FR 21737 (May 10, 1996), FERC Stats. & Regs., Regulations Preambles Jan. 1991-June 1996 ¶ 31,035 (Apr. 24, 1996); Order No. 889-A, *order on reh'g,* 62 FR 12484 (Mar. 14, 1997), FERC Stats. & Regs., Regulations Preambles July 1996-December 2000 ¶ 31,049 (Mar. 4, 1997); Order No. 889-B, *reh'g denied,* 62 FR 64715 (Dec. 9, 1997), 81 FERC ¶ 61,253 (Nov. 25, 1997) (collectively, Order No. 889). 4. Nevertheless, we believe this single set of standards should more closely resemble the functional approach that was adopted in Order Nos. 497 and 889. Our experience with implementing and enforcing the Standards, as well as the record of this proceeding, demonstrates that this approach is the one most likely to foster compliance and strengthen enforcement of the Standards. The “corporate separation” adopted by Order No. 2004 has not proven workable and was adopted to facilitate the regulation of Energy Affiliates, 5 a step that is no longer appropriate given the decision in National Fuel. 5 Order No. 2004 at P 92. 5. In addition to combining the best elements of Orders 497, 889 and 2004, we also, as explained below, propose to simplify and streamline the Standards to facilitate compliance and enhance enforcement. With our new civil penalty authority, we are mindful of the fact that our regulations must be as clear as possible, as participants in the enforcement conference repeatedly noted. We also propose to strengthen enforcement of the Standards by proposing additional transparency to aid in the detection of affiliate abuse. Although we believe many of the existing elements of the Standards should be retained, the reforms we are proposing, together with the simplification and clarification we believe to be imperative, necessitate reissuing the entire part 358 of the Code of Federal Regulations as a stand-alone document. II. Background 6. The Commission first adopted Standards of Conduct in 1988, in Order No. 497. These initial Standards prohibited interstate natural gas pipelines from giving their marketing affiliates or wholesale merchant functions undue preference over non-affiliated customers. Citing demonstrated record abuses, the U.S. Court of Appeals for the D.C. Circuit upheld these Standards in 1992. 6 The Commission adopted similar Standards for the electric industry in 1996, in Order No. 889, prohibiting public utilities from giving undue preference to their marketing affiliates or wholesale merchant functions. Both the electric and gas Standards sought to deter undue preference by:

(i)Separating a transmission provider's employees engaged in transmission services from those engaged in its marketing services, and

(ii)requiring that all transmission customers, affiliated and non-affiliated, be treated on a non-discriminatory basis. 6 *Tenneco Gas* v. *FERC* , 969 F.2d 1187 (D.C. Cir. 1992) ( *Tenneco* ). 7. Changes in both the electric and gas industries, in particular the unbundling of sales from transportation in the gas industry and the increase in the number of power marketers in the electric industry, led the Commission in 2003 to issue Order No. 2004, which broadened the Standards to include a new category of affiliate, the Energy Affiliate. 7 The new Standards were made applicable to both the electric and gas industries, and provided that the transmission employees of a transmission provider 8 must function independently not only from the company's marketing affiliates but from its Energy Affiliates as well, and that transmission providers may not treat either their Energy Affiliates or their marketing affiliates on a preferential basis. Order No. 2004 also imposed requirements to publicly post information concerning a transmission provider's Energy Affiliates. 7 The new Standards defined an Energy Affiliate as an affiliate of a Transmission Provider that

(1)engages in or is involved in transmission transactions in U.S. energy or transmission markets; or

(2)manages or controls transmission capacity of a Transmission Provider in U.S. energy or transmission markets; or

(3)buys, sells, trades or administers natural gas or electric energy in U.S. energy or transmission markets; or

(4)engages in financial transactions relating to the sale or transmission of natural gas or electric energy in U.S. energy or transmission markets. 18 CFR 358.3(d). Certain categories of entities were excluded from this definition in following subsections of the regulations. 8 A Transmission Provider was defined as

(1)any public utility that owns, operates or controls facilities used for transmission of electric energy in interstate commerce; or

(2)any interstate natural gas pipeline that transports gas for others pursuant to subpart A of part 157 or subparts B or G of part 284 of the same chapter of the regulations. 18 CFR 358.3(a). 8. On appeal by members of the natural gas industry, the U.S. Court of Appeals for the D.C. Circuit overturned the Standards as applicable to gas transmission providers, on the grounds that the evidence of abuse by Energy Affiliates cited by the Commission was not in the record. 9 The court noted that the dissenting Commissioners in Order No. 2004 had expressed the concern that the Order would diminish industry efficiencies without advancing the FERC policy of preventing unduly discriminatory behavior. 10 9 *National Fuel* at 841. 10 *Id.* at 838. 9. The Commission issued an Interim Rule on January 9, 2007, 11 and set about developing new Standards that would cure the defects identified by the D.C. Circuit in *National Fuel.* On January 18, 2007, the Commission issued its initial NOPR, 12 requesting comment on whether the concept of Energy Affiliates should be retained for the electric industry, proposing the creation of two new categories of employees denominated as Competitive Solicitation Employees and Planning Employees, carrying over the Interim Rule's new definition of marketing to cover asset managers, and making numerous other proposals. The Commission received thousands of pages of both initial and reply comments from some 95 individuals, companies, and organizations, which are listed in Appendix A. 11 *Standards of Conduct for Transmission Providers,* Order No. 690, 72 FR 2427 (Jan. 19, 2007); FERC Stats. & Regs. ¶ 31,237 (Jan. 9, 2007) (Interim Rule); *clarified by, Standards of Conduct for Transmission Providers,* Order No. 690-A, 72 FR 14235 (Mar. 27, 2007); FERC Stats. & Regs. ¶ 31,243

(2007)(Order on Clarification and Rehearing). 12 *Standards of Conduct for Transmission Providers,* 72 FR 3958 (Jan. 29, 2007), FERC Stats. & Regs. ¶ 32,611

(2007)(initial NOPR). 10. As noted above, consideration of these comments, coupled with our own experience in administering the Standards, has persuaded us to modify the approach advanced in the initial NOPR. For that reason, we now issue a new NOPR, and invite comment both on its general approach and on its specific provisions. III. Discussion A. The Need for Reform 11. The purpose of this revised NOPR is to strengthen the Standards by making our rules clearer and refocusing them on the areas where there is the greatest potential for affiliate abuse. In so doing, we will facilitate compliance by regulated entities and enhance Commission enforcement. We propose to accomplish this objective by combining the best elements of Order Nos. 497 and 889, on the one hand, and Order No. 2004, on the other. In particular, we propose to return to the approach of separating, by function, the transmission personnel from the marketing personnel that was adopted in Order Nos. 497 and 889 and worked well for many years, while also retaining a single set of standards for both natural gas and electric industries, as envisioned by Order No. 2004. We also propose to further clarify and streamline the Standards to enhance compliance and enforcement of our rules, and to increase transparency in the area of transmission/affiliate interactions to aid in the detection of any undue discrimination. 12. We believe these broader reforms are superior to the incremental reforms proposed in our initial NOPR for two principal reasons. First, we propose to return to the functional separation of transmission and merchant personnel adopted in Order Nos. 497 and 889, because it worked well for many years. Although Order No. 2004 abandoned this approach in favor of a “corporate separation,” it did so because of jurisdictional concerns created by the addition of Energy Affiliates to our regulations, *not* because the functional approach had proven inadequate in preventing affiliate abuse. 13 13 The Commission stated: “While it may be less costly for some companies to implement the [functional] approach * * * the Commission is concerned that it does not have the jurisdiction to direct unregulated Energy Affiliates on how to structure their functions, operations and communications.” Order No. 2004 at P 93. 13. Now that the D.C. Circuit has rejected the addition of Energy Affiliates for lack of evidence (and no commenter has provided sufficient evidence to reinstate it), it is no longer appropriate to retain the corporate separation approach adopted in Order No. 2004. Furthermore, there is good reason to rescind it. The corporate separation approach has proven so difficult to implement that it has generated scores of “waiver” requests (most of which were granted) and has otherwise frustrated compliance by diverting the industry's focus from the very reason why the Standards were necessary in the first place—the conflict of interest between the *functions* of transmission and merchant activities. 14. The initial NOPR was itself evidence of the problem we now seek to remedy. Since the adoption of Order No. 2004, the corporate separation approach had, as we found in the initial NOPR, impeded legitimate integrated resource planning and competitive solicitations. 14 To address this problem, we proposed there to create two new exemptions for these activities. Yet, by failing to address the underlying cause of that problem—the corporate separation approach—we, again, created additional exemptions and complexity to a rule already burdened with so many waivers, exemptions and complexity that both compliance and enforcement have been frustrated. By proposing to return to the functional approach that had proven effective prior to Order No. 2004, we can accommodate such legitimate activities without creating yet another set of exemptions. 14 Southern Company Services, Inc., among other commenters in the Order No. 2004 docket, described the difficulties that arise when all the employees of a marketing affiliate, including its planning employees, are prohibited from receiving transmission information: “Planning new generation and transmission capacity requires selecting the right combination and location of both generation and transmission. Coordinated and integrated planning is required because the siting of new generation is integrally related to transmission considerations and vice versa * * *. Accordingly, the costs, characteristics and locations of generation and transmission must be considered together in order to ensure the provision of service to customers on a reliable and least cost basis.” Comments of Southern Company Services, Inc., Docket No. RM01-10-000 at p. 16 (Dec. 20, 2001). 15. Second, we believe this broader reform of our existing Standards is necessary to make them clearer in an era where the Commission possesses substantial civil penalty authority. Soon after the adoption of the Energy Policy Act of 2005 (EPAct 2005), 15 the Commission heard significant concerns from the regulated community that the existing Standards contained so many ambiguities that they impeded compliance and left companies—including those with the best cultures of compliance—exposed to significant civil penalties. We responded to those concerns by holding a public technical conference in Phoenix, Arizona, attended by all of the Commissioners serving at the time. The consistent message from regulated entities at this conference was best captured by an energy attorney who stated that “there is no area [besides the Standards] where I practice law where there is a greater number of times I am asked the question and I don't have the answer, and that is a real problem when you are talking about corporate governance.” 16 15 Pub. L. No. 109-58, 119 Stat. 594 (2005). 16 Standards of Conduct Conference and Workshop (April 7, 2006), transcript at p. 61. 16. Nearly two years later, we heard the same concerns at our enforcement conference in Washington, DC. Several panelists expressed concern about the ambiguities in our Standards. These concerns were also supported in comments submitted on behalf of six industry trade groups, who placed the Standards at the top of their list of ambiguous rules that hinder compliance. 17 As these six groups and another trade association emphasized, a “[l]ack of clarity sows confusion, creates unnecessary risk and chills legitimate market behavior because market participants are reticent to engage in certain types of transactions where the rules are unclear.” 18 17 Comments at 20, submitted by The American Gas Association, Edison Electric Institute, Electric Power Supply Association, Independent Petroleum Association of America, Interstate Natural Gas Association of America, and Natural Gas Supply Association, Docket No. AD07-13-000 (Dec. 17, 2007). 18 White Paper at 6, submitted by The American Gas Association, Edison Electric Institute, Electric Power Supply Association, Independent Petroleum Association of America, Interstate Natural Gas Association of America, Natural Gas Supply Association and Process Gas Consumers Group, Docket No. AD07-13-000 (Nov. 14, 2007). 17. We agree, and we have more than an adequate record to support the conclusion that the existing Standards are too complex to facilitate compliance or support our enforcement efforts. Since issuance of the NOPR in Order No. 2004, the Commission has held no less than four conferences devoted to explication and discussion of the Standards. 19 Of the ten requests for No Action Letters submitted to the Commission since 2005, seven have involved the Standards. 20 And Commission staff has received so many calls regarding the interpretation and application of the Standards, that the Commission has posted on its public Web site a 30-page document entitled “Frequently Asked Questions about Order No. 2004.” 19 May 21, 2002 in Washington, DC; May 10, 2004 in Houston, Texas; May 6, 2005 in Chicago, Illinois; and April 7, 2006 in Scottsdale, Arizona. 20 No Action Letters can be sought for matters involving the Standards of Conduct, Codes of Conduct (now Affiliate Restrictions), Market Behavior Rules, and the Anti-Manipulation Rules. 18. The complexity and unworkability of the current Standards is also evident in the fact that since issuance of Order No. 2004, the Commission has received 107 requests for waiver from various aspects of the Standards, the vast majority of which have been granted. Interpretation of the Standards has thus consumed thousands of hours of staff time. It has also proven so elusive to the industry that it has engendered numerous conferences by law firms and trade associations, greatly outstripping comparable areas of Commission compliance in resources and money. 19. The complexity and over breadth of the current Standards has also made it more difficult for transmission providers to reasonably manage their business, an effect which the Commission never intended. As the court in *Tenneco* noted, vertical integration can produce efficiencies of operation, and advantages given to an affiliate are not improper if they do not amount to exercises of market power. 21 Unnecessarily balkanizing employees one from another and erecting barriers to the free flow of information can thwart perfectly legitimate efficiencies, a consequence which disadvantages not only the companies involved but ultimately consumers as well, in the form of higher rates. Executives of transmission providers can also be impeded in making necessary business decisions for fear they may transgress the Standards by assembling needed data or by meeting to discuss the merits of potential investments. This fear has been exacerbated by the Commission's civil penalty authority, granted by Congress in EPAct 2005. As we explained above, the regulated community has consistently argued that the Standards are too ambiguous to facilitate compliance, particularly in an era where significant civil penalties may attach to violations. 21 *Tenneco* at 1201. 20. Therefore, in this NOPR we take the approach of structuring the Standards to establish *per se* rules that address the greatest prospect for undue preference. However, this streamlined approach does not diminish our ability to rectify and sanction, where necessary, instances of undue discrimination and preference. 22 The core prohibitions against undue preference are rooted in sections 205 and 206 of the FPA and sections 4 and 5 of the NGA, 23 and the Commission possesses the full panoply of statutory remedies to address violations of these statutes, whether or not they are specifically addressed in the *per se* regulations of the Standards. Since enforcement of both the Standards and the statutory prohibitions against undue discrimination and preference will be greatly assisted by transparency, we also include in the proposed Standards provisions to make apparent any instances of communication and undue preference between transmission function employees and marketing function employees. These provisions require either the public posting of information regarding such communications or the maintenance of contemporaneous records for review by the Commission. 22 Whereas failure to comply with a *per se* rule of the Standards automatically establishes a sanctionable violation, an alleged violation of the Federal Power Act (FPA), 16 U.S.C. 824d-824e

(2000)or the Natural Gas Act (NGA), 15 U.S.C. 717c-717d

(2000)would require an investigation into both the facts and the surrounding circumstances to determine if, in fact, an undue discrimination occurred. 23 Sections 205 and 206 of the FPA state that no public utility shall make or grant an undue preference with respect to any transmission or sale of electric energy subject to the Commission's jurisdiction. Similarly, sections 4 and 5 of the NGA state that no natural gas company shall make or grant an undue preference or advantage with respect to any transportation or sale of natural gas subject to the Commission's jurisdiction. 21. We propose regulations that adopt the three core elements which we believe to be appropriate for *per se* rules: The independent functioning rule, the no conduit rule, and the transparency rule. We address these below. B. The Independent Functioning Rule 22. Order No. 2004 continued the policy, established in Order Nos. 497 and 889, of requiring transmission providers to function independently from their marketing employees or marketing affiliates. This practice has been well-established for close to twenty years, and it is our sense that both pipelines and public utilities understand the general concept of independent functioning. We continue to believe this policy is the most effective manner of preventing undue preference by a transmission provider, and we will carry forward the requirement of independent functioning in these proposed Standards. 24 24 *See* proposed 18 CFR 358.5(a). 23. Nevertheless, we believe a basic alteration in its methodology is warranted. The Standards' existing method for separating transmission function employees from marketing function employees relies on the corporate functional approach, 25 under which a transmission provider must function independently from an affiliate which engages in marketing. 26 This is a departure from the method adopted in Order Nos. 497 and 889. Order No. 497 required that interstate natural gas pipelines, to the maximum extent practicable, ensure that their operating employees and the operating employees of their marketing affiliates function independently of each other. 27 Order No. 889 required that, except in emergency circumstances, the employees of the transmission provider engaged in transmission system operations must function independently of its employees, or the employees of any of its affiliates, who engage in wholesale merchant functions ( *i.e.* , wholesale sales and purchases of electric energy). 28 Thus, the prohibition keyed off the job function of the employee, rather than by whom he or she was employed. 25 Order No. 2004 designates this approach as the Energy Affiliate approach. Order No. 2004 at P 92-94. 26 *Id.* P 92-94. 27 Order No. 497, formerly codified at 18 CFR 161.3(g). 28 Order No. 889, formerly codified at 18 CFR 37.4(a). 24. This approach was altered in Order No. 2004, which required transmission function employees to function independently of personnel employed by the transmission provider's marketing affiliates or Energy Affiliates. 29 Because there are many individuals employed by transmission providers' marketing affiliates who are not involved in the core activities that give rise to the potential for undue preference, we have over the years exempted whole categories of employees from this restriction and allowed them to be shared between the transmission provider and its marketing affiliate. These include officers and members of the board of directors, support employees, field and maintenance employees, and risk management employees. 30 We observed that these employees are not generally in a position to give a marketing affiliate an undue preference, and that the sharing of these employees has allowed the transmission provider to realize efficiencies not otherwise available to it. 31 Carrying forward this approach in the initial NOPR, we suggested the creation of two new categories of exempted employees, the Planning Employee and the Competitive Solicitation Employee. 32 29 Order No. 2004, formerly codified at 18 CFR 358.4(a)(1). In its comments, Edison Electric Institute describes the difficulty with this approach: “The corporate functional approach * * * uses the evaluation of individual employees to determine what a whole corporation (or division, etc.) does. If an employee performs Energy or Marketing Affiliate Activities, the whole corporation (or division) is deemed an Energy or Marketing Affiliate, and every other employee within the corporation is then subject to the rules by association, regardless of what they do and the function they perform, unless they fit into an exempt category. Because these exempt categories are vague and difficult to implement the corporate-functional approach ends up with restrictions that apply to more employees than necessary to meet the objectives of the rules.” Comments of the Edison Electric Institute, Docket No. RM07-1-000 at pp. 20-21 (Mar. 30, 2007). 30 Much debate has also been engendered as to whether employees such as lawyers, accountants, and rate design personnel should be exempted. *See* initial NOPR at P 278-98. 31 *See, e.g.* , Order No. 2004 at P 97. 32 Initial NOPR at P 42 and 54. 25. This proliferation of exemptions has had the unfortunate side effect of removing the certainty that might otherwise be enjoyed as to which persons an employee may properly interact with and which persons he or she may not. Furthermore, it undermines the legitimacy of the Standards, as employees may find nonsensical the prohibition against interacting with personnel who have nothing to do with sensitive marketing or transmission information. 26. The crux of the problem is that currently the prohibited category of marketing affiliate includes *all* employees of the affiliate, whether engaged in sales or not. To avoid such broad inclusion, many commenters have proposed that the Commission adopt an “employee functional approach” rather than a corporate functional approach, whereby the Standards would apply to each individual employee based on that employee's job function, not on the company or division where the employee is employed. 33 33 *See* EEI at 19 for a discussion of this approach. EEI was supported by Tucson Electric at 4, APS at 3, PSC of New Mexico at 1-2, Entergy at 1-2, E.ON at 7, Portland General at 1, Northwestern at 1. Other commenters support a similar functional approach: Idaho Power at 3, Southern Co. Services at 4-8, Keyspan at 3-4, SCE at 3-5, Western Utilities Compliance Group at 2-3. TAPS is in accord, providing the meaning of marketing is expanded. TAPS Reply at 7-8. 27. This proposal was also advanced by commenters in Order No. 2004. It was rejected at that time because the Standards were being expanded to cover Energy Affiliates, and it was felt that the employee functional approach might require a shared responsibility on the part of potentially non-jurisdictional entities. 34 That reason no longer exists. We believe the D.C. Circuit's reason for overturning the prohibitions relating to natural gas Energy Affiliates applies equally to electric Energy Affiliates, and we propose abandoning the concept of Energy Affiliate, as discussed more fully below. Therefore, the concerns of Order No. 2004 regarding jurisdictional access to Energy Affiliates are rendered moot. 34 Order No. 2004 at P 92. 28. The employee functional approach accomplishes directly the goal of identifying which employees ought not to interact with one another, whereas the corporate functional approach attempts to accomplish that objective indirectly, by focusing on the nature of the employing entity. This casts too wide a net and ensnares employees who do not perform sensitive functions. Commission staff has expended much effort in attempting to clarify for companies which employees may interact with one another and which may not. In one case, for example, coordination of generation dispatch and transmission service reservations were both conducted out of the same system operating center, in order to realize cost and communication efficiencies. This necessitated a series of orders by the Commission to deal with employee classification problems under the Standards. 35 In another instance, marketing affiliate employees who ran a generating plant needed access to a transmission substation but were barred from doing so under the Standards, even though they performed no marketing functions. A waiver was needed in this case, 36 and questions as to precisely which employees were covered by the waiver consumed a good deal of staff's attention. 37 Personnel in the nuclear power industry were so confused about permitted communications that the Commission, in order for companies to comply with the requirements of the U.S. Nuclear Regulatory Commission, had to issue an order granting permission for transmission providers to communicate with affiliated nuclear power plants. 38 The Commission has also expended considerable effort in clarifying for companies whether given entities qualify as Energy Affiliates, a status that barred their employees from interacting with transmission function employees. 39 35 *See Audit of Standards of Conduct, Code of Conduct, OASIS & Transmission Practices, Duke Energy Corporation,* Docket No. PA03-15-000 at pp. 6-8 (Jan. 21, 2005). 36 *Algonquin Gas Transmission, L.L.C.,* 111 FERC ¶ 61,099, at P 21-32 (2005). 37 *See Audit of Standards of Conduct, Code of Conduct, and Open Access Transmission Tariff Requirements at Florida Power and Light Company,* Docket No. PA05-7-000 at pp. 6-10 (May 12, 2006). 38 *Interpretive Order Relating to the Standards of Conduct,* 114 FERC ¶ 61,155

(2006)(Interpretive Order), clarified in 115 FERC ¶ 61,202 (2006). 39 *See,* *e.g.* , *Alcoa Power Generating Inc.,* 108 FERC ¶ 61,243, at P 29-35, 42-56, 136-46 (2004), reh'g granted in part as to unrelated issue, *Nat'l Fuel Gas Supply Corp.,* 116 FERC ¶ 61,048 (2006); *High Island Offshore System, L.L.C.,* 116 FERC ¶ 61,047, at P 59-68 (2006). 29. The employee functional approach, by pinpointing precisely which employees need to function independently one from another, has the added benefit of making the purpose of the prohibition more readily apparent. It should also make it easier for employees to comply with the Standards, since they will likely know an individual's job function, whereas they may not know by which subsidiary of an umbrella organization a given individual is employed. 30. Therefore, we propose adopting the employee functional approach, and define the two groups of employees who must function independently of each other as “transmission function employees” 40 and “marketing function employees” 41 (whether employed within the corporate structure of the transmission provider or by an affiliate of the transmission provider). The definitions of these terms are discussed in the following sections. We also propose to continue the general prohibition against marketing function employees conducting transmission functions, or having discriminatory access to the transmission provider's system control center. 42 Furthermore, we add the converse prohibition, that a transmission function employee may not conduct marketing functions. 43 40 *See* proposed section 358.3(i). 41 *See* proposed section 358.3(d). 42 *See* proposed 18 CFR 358.5(c)(1). 43 *See* proposed 18 CFR 358.5(c)(2). 1. Transmission Function Employee 31. We propose defining a transmission function employee as an employee, contractor, consultant or agent of a transmission provider who engages in transmission functions. 44 “Transmission functions” are defined as the conduct of transmission system operations and the planning, directing, organizing or carrying out of transmission operations, including the granting and denying of transmission service requests. 45 44 *See* proposed 18 CFR 358.3(i). 45 *See* proposed 18 CFR 358.3(h). 32. We believe this definition, when coupled with the definition of “marketing functions” discussed below, addresses the concerns raised by the industry regarding the obstacles the Standards place in the way of system planning. We stressed in Order Nos. 890 and 890-A not only the critical importance of long-range planning, but also the desirability of a coordinated and open planning process. 46 Unnecessary restrictions on employee interactions militate against that objective. However, because we are returning to the functional separation approach adopted in Order No. 889, and because a marketing function employee is one who is actively and personally engaged in marketing activities, an employee who performs merely a planning function and is not “engaged in” making wholesale offers, bids or sales does not fall within the prohibited category. He or she is therefore free to discuss system planning, including state-mandated Integrated Resource Planning, with transmission function employees. 46 *Preventing Undue Discrimination and Preference in Transmission Service,* Order No. 890, FERC Stats. & Regs. ¶ 31,241, at P 425 (2007), *order on reh'g and clarification,* Order No. 890-A, FERC Statutes and Regulations ¶ 31,261, at P 171 (2007). 33. With respect to employee interactions regarding reliability functions, we deem it the first order of business on the part of a transmission provider to ensure reliability of operations. Indeed, pursuant to Congressional mandate in EPAct 2005, Reliability Standards have been promulgated by the Commission-certified Electric Reliability Organization 47 and approved by the Commission, violation of which can subject a transmission provider to substantial civil penalties of up to $1 million a day. 48 Several Reliability Standards require an electric transmission provider to coordinate operations with entities that may include marketing affiliates and, thus, marketing function employees. 49 We therefore provide an exception to the independent functioning rule for the exchange of information necessary to maintain or restore operation of the transmission system. Exchanges of information pursuant to this exception should be made only to the same extent that a transmission provider would exchange information with similarly situated marketing function employees of a non-affilated entity. We also propose requiring that a contemporaneous record be made of exchanges pursuant to this exception, except in emergency situations, when a record may be prepared after the fact. 50 Furthermore, transmission function employees will still be subject to the no conduit rule discussed below, and thus will be required to distinguish between information concerning reliability activities and other transmission function information. 47 The North American Electric Reliability Corporation was certified as the Electric Reliability Organization, pursuant to section 215 of the FPA, in *North American Electric Reliability Corp.,* 116 FERC ¶ 61,062, *order on reh'g and compliance,* 117 FERC ¶ 61,126 (2006). 48 *Mandatory Reliability Standards for the Bulk-Power System,* Order No. 693, FERC Statutes and Regulations ¶ 31,242 (2007), *order on reh'g,* Order No. 693-A, 120 FERC ¶ 61,053 (2007), codified at 18 CFR part 40. 49 *See,* *e.g.* , Reliability Standard TOP-003-0 (balancing authorities, transmission operators and generator operators shall plan and coordinate scheduled outages of system voltage regulating equipment and telemetering and control equipment); Reliability Standard TOP-002-2 (generator operator shall coordinate current-day, next-day and seasonal operations with its host balancing authority and transmission service provider). 50 *See* proposed section 358.7(h). 34. If an employee spends any but a *de minimis* amount of time engaged in transmission functions, he or she will be considered a transmission function employee. However, a supervisor, officer or director who is not actively and personally engaged in transmission functions will not be considered a transmission function employee. 51 Such an individual will, of course, have access to transmission function information, and will be barred from sharing it with marketing function employees under the no conduit rule discussed below. Inasmuch as different organizations use different titles for the same job function, we decline to propose a cutoff for supervisory personnel based on job title, and instead propose a functional approach based on actual involvement in the activities themselves. For instance, if a transmission department supervisor is charged with the general responsibility of overseeing system control center personnel, but does not himself engage in system operations or grant or deny transmission service requests, he would not be a transmission function employee. But if he is involved in system operations or the processing of transmission service requests, or engages in decision-making regarding system operations or the processing of transmission service requests, he would be a transmission function employee even if he also has supervisory responsibilities. 51 *See* proposed 18 CFR 358.3(i). 2. Marketing Function Employee 35. The current Standards do not contain a definition of marketing function employee, although they do define “marketing affiliate,” “marketing, sales or brokering,” and “marketing or brokering.” We propose to simplify these concepts and, in accordance with our employee functional approach, eliminate the definition of marketing affiliate. We propose to define a marketing function employee as an employee, contractor, consultant or agent of a transmission provider or of an affiliate of a transmission provider who engages in marketing functions. 52 “Marketing functions” are defined as the sale for resale in interstate commerce, or the submission of offers or bids to buy or sell natural gas or electric energy or capacity, demand response, virtual electric or gas supply or demand, or financial transmission rights in interstate commerce, all as subject to certain exemptions. 53 We also propose to revise the existing definition of “affiliate” to conform to the current definition set forth in 18 CFR 35.43(a)(1). 54 52 *See* proposed 18 CFR 358.3(d). 53 *See* proposed 18 CFR 358.3(c). This definition is a variant of a suggestion by TAPS. We note that it is unnecessary to include in the list of products another item mentioned by TAPS, that of ancillary services, as these are included in the definition of sales of electric energy. TAPS Reply at 8. We decline to include the suggested category of sites for generating capacity, as this category is far afield from the concept of marketing energy. 54 *See* proposed 18 CFR 358.3(a). This definition was promulgated in *Cross-Subsidization Restrictions on Affiliate Transactions,* Order No. 707, 73 Fed. Reg. 11,013 (Feb. 29, 2008), FERC Stats. & Regs. ¶ 31,263 (2008). 36. In the past, the following categories have been exempted from the definition of marketing:

(i)Bundled retail sales,

(ii)incidental purchases or sales of natural gas to operate interstate natural gas pipeline transmission facilities,

(iii)sales of natural gas solely from the transmission provider's own production,

(iv)sales of natural gas solely from the transmission provider's own gathering or processing facilities, or

(v)sales by an intrastate natural gas pipeline or local distribution company making an on-system sale. The comments did not suggest deleting these exemptions, and we propose to carry them forward in this reissued NOPR. 55 55 *See* proposed 18 CFR 358.3(c)(1)-(5). 37. We also note that a question has arisen whether providers of last resort (POLR), which are transmission providers that are charged with serving retail customers when the customers choose not to purchase from other suppliers, should likewise be exempted. We declined to accord POLRs a generic exemption in Order No. 2004-C, instead stating we would consider their status on a case-by-case basis. Commenters supporting the exemption pointed out that POLR service constitutes bundled retail sales, and thus should fall within the exemption for that category. 56 Commenters opposing the exemption presented theoretical instances of abuse, but not actual instances. 57 In the absence of actual evidence of abuse, we believe the general exemption for bundled retail sales should also apply to transmission providers acting as POLRs, and therefore propose to include POLRs in the list of exempt marketing functions. 58 56 Northwestern at 5-6, Ameren at 25-28. 57 Illinois Commerce Commission Reply at 6-7, Retail Energy Supply Association at 5-7. 58 *See* proposed 18 CFR 358.3(c)(1). 38. Similarly as with respect to transmission function employees, if an employee spends any but a *de minimis* amount of time engaged in marketing functions, he or she will be considered a marketing function employee. However, a supervisor, officer or director who is not actively and personally engaged in marketing functions will not be considered a marketing function employee. 59 For instance, if a manager has supervisory responsibility over employees engaged in making offers or sales of electric energy or natural gas, but does not engage in making offers or sales himself, he would not be a marketing function employee. However, if he both supervises others and engages in making offers or sales himself, or engages in decision-making regarding offers or sales, he would be a marketing function employee. 59 *See* proposed 18 CFR 358.3(d). 39. We note that our revised approach to the independent functioning rule resolves the question of whether asset managers should be subject to the Standards. In the initial NOPR, the Commission proposed expanding the definition of “marketing, sales or brokering” to include entities that manage or control transmission capacity, such as asset managers or agents. A number of comments were received on this subject, and several commenters noted that no evidence of abuse by asset managers had been presented in the initial NOPR record. These commenters point out that in the absence of such evidence, inclusion of asset managers in the category of proscribed affiliates would run afoul of the infirmity noted in National Fuel regarding Energy Affiliates. 60 60 Nevada Companies at 13, citing P 21 of the NOPR. *See also* National Fuel Companies at 5-6, Spectra at 10-13, Williston at 9-10, Sequent at 4-5. 40. It is not necessary to reach this issue under our proposal, as our definition of marketing function employee reaches only those employees of an asset manager, whether that asset manager is a contractor, consultant, agent or affiliate, who may be directly engaged in wholesale marketing. Therefore, it is only those specific employees of an asset manager who must function independently of a transmission provider's transmission function employees. This simplification regarding asset managers illustrates another advantage to our proposed employee functional approach. If a company finds it more efficient to have fewer subsidiaries and combine multiple functions in a given affiliate, it need not avoid doing so simply to shield the affiliate's non-marketing employees from the restrictions imposed by the Standards. 3. Shared Employees 41. Employees such as attorneys, accountants, risk management personnel and rate design employees do not fall within the scope of the independent functioning rule, so long as they are acting in their roles as attorneys, accountants, risk management personnel or rate design employees, rather than as transmission function employees or marketing function employees. Thus, there is no longer a need for the concept of “shared employees.” Of course, as discussed below, such employees remain subject to the no conduit rule and may not pass non-public transmission function information to marketing function employees. 42. Furthermore, field employees will no longer need to be exempt from the independent functioning rule, as such employees, while qualifying as transmission function employees by virtue of being engaged in transmission system operations, will not be in a position to interact with marketing function employees. In those rare cases where marketing function employees may also operate generation and need to confer with transmission function employees, we propose a specific exception to the no conduit rule, as discussed below. 4. Permitted Interactions 43. We recognize, based on lengthy experience of our Audits and Investigations staff in the Office of Enforcement, that there may be instances where transmission function employees must communicate with marketing function employees. 61 For instance, it is not infrequently the case that the merchant function of a public utility not only engages in marketing the company's electric power, but also operates its generating plants. Under our proposal, the number of operational employees who would qualify as marketing function employees will be greatly reduced. However, it is possible, as noted above, that there may be some overlap between sales and operations. In such cases, it is essential that the employees who supervise the operation of the generating plants be able to discuss the plants' operational status with transmission function employees, as such information will affect flows and availability on the company's transmission system. Therefore, for these occasions as well as for the reliability situations discussed above, we include an exception to the independent functioning requirement for communications between transmission function employees and marketing function employees. 62 Exchanges of information pursuant to this exception, as in the case of exchanges regarding reliability, should be made only to the same extent that a transmission provider would exchange information with similarly situated marketing function employees of a non-affiliated entity. In order to prevent and monitor for potential abuse, we also include a requirement that contemporaneous records of such dispatch or reliability communications between transmission function employees and marketing function employees be maintained by the company and made available to Commission staff on request, as described in our discussion below on the transparency rule. 63 It will be the responsibility of the Chief Compliance Officer to ensure that such records are made and retained. 61 As noted, we have already provided for necessary communications between employees of a transmission provider and its affiliated nuclear power plant in the Interpretive Order. 62 *See* proposed 18 CFR 358.5(b). 63 *See* proposed 18 CFR 358.7(h). 5. Energy Affiliates 44. The concept of Energy Affiliates was added to the Standards in Order No. 2004. In that Order, we required pipelines and public utilities to function independently from their Energy Affiliates as well as from their marketing affiliates, and restricted the sharing of information by transmission providers with their Energy Affiliates. It was this addition which led the court in *National Fuel* to vacate the order with respect to the gas industry, on the grounds there was no record evidence of abuse by Energy Affiliates. 45. Our proposed adoption of the employee functional approach renders moot the question of whether the concept of Energy Affiliates should be retained for the electric industry. We no longer propose separating employees from transmission activities by virtue of their being employed by either a marketing affiliate or an Energy Affiliate, but rather by their job as a marketing function employee. Moreover, we note that commenters who supported retention of the concept of Energy Affiliates did not provide the Commission with evidence of actual abuse. That being the case, the same reasoning as was employed in *National Fuel* with respect to the natural gas industry would likely prevail on appeal of any order that restricted communications between public utilities and their Energy Affiliates. For that reason as well, we decline to apply the concept of Energy Affiliates to the electric industry. C. The No Conduit Rule 46. We propose strengthening the proscriptions against the exchange of prohibited information in several ways. In addition to the current prohibition against transmission function employees disclosing non-public transmission function information to marketing function employees, 64 we propose prohibiting marketing function employees from receiving non-public transmission function information from any source. 65 And in addition to the current prohibition against a transmission provider using anyone as a conduit for the improper disclosure of non-public transmission function information, we propose prohibiting both an employee of a transmission provider and also an employee of an affiliate engaged in marketing functions from disclosing non-public transmission function information to marketing function employees. 66 The expansion of the no conduit rule 67 is designed to reach all sources of a prohibited informational exchange. It also encompasses many employees who do not fall within the scope of the independent functioning rule. For instance, although under our proposal there is no requirement that lawyers employed by a transmission provider need to function independently of the company's marketing function employees, such lawyers must avoid serving as a conduit for passing transmission function information to a marketing function employee. 64 The current Standards prohibit transmission provider's employees from disclosing non-public information about the transmission system to marketing or Energy Affiliates. 18 CFR 358.5(b). 65 *See* proposed § 358.6(a)(2). 66 *See* proposed § 358.6(a)(4). 67 In the current Standards, the no conduit prohibition refers only to the use of another person by the transmission provider or its employees to pass prohibited information to a marketing affiliate or Energy Affiliate. 18 CFR 358.5(b)(7). In the proposed Standards, the term “no conduit rule” refers to the entire set of prohibitions on informational exchanges, including transmission provider employees, marketing affiliate employees and employees of other entities. 47. As a safety valve, we also include an exemption to the no conduit rule that parallels the exemption provided under the independent functioning rule. Thus, the exchange of transmission function information with marketing function employees is permitted where the information regards generation necessary to perform generation dispatch, or is necessary to maintain or restore operation of the transmission system. 68 In such cases, a contemporaneous record is to be made of the exchange, except in emergency circumstances, when the record can be made after the fact. 69 68 *See* proposed 18 CFR 358.6(b). 69 *See* proposed 18 CFR 358.7(h). 48. Compliance with proscriptions on the exchange of information should be greatly facilitated by the existing requirement that transmission providers designate a Chief Compliance Officer. Such officers are responsible, in the first instance, for fielding any questions from employees regarding the nature of transmission function information or the persons to whom it may be passed, for preventing prohibited exchanges of information, and for curing any prohibited exchanges by public posting of the information. We proposed in the initial NOPR that a transmission provider post the name of its Chief Compliance Officer on its OASIS or Internet Web site, due to difficulties Commission staff had experienced in identifying the Chief Compliance Officers of several transmission providers. We carry forward that proposal here. 70 70 *See* proposed 18 CFR 358.8(c)(2). 49. We also propose retaining from the existing regulations the requirement that transmission providers train their employees on compliance with the Standards, and propose carrying forward from the initial NOPR the requirement that completion of such training be certified. We also propose that such training be conducted annually. 71 Most employees should received some training, as all employees are forbidden from passing designated information to prohibited employees, but the bulk of the training will need to be concentrated on transmission function employees, marketing function employees, and those employees who are privy to transmission function information. Such employees would include lawyers, accountants, risk management personnel, and members of the rate design department. Since the actual restrictions in the Standards will now match the abuses sought to be avoided, such training should be relatively straightforward and easy for employees to comprehend. 71 *See* proposed 18 CFR 358.8(c)(1). D. The Transparency Rule 50. The reason behind the no conduit rule's prohibitions on receipt and disclosure of information is to prevent undue discrimination and undue preference by a transmission provider towards its marketing affiliate or division. But undue preferences can occur only if the prohibited information is not generally available to the competitors of such affiliates or divisions. Therefore, a transmission provider may comply with the prohibitions on passing transmission function information to marketing function employees by making such information publicly available. As EPSA remarks in its comments, the simultaneous disclosure of non-public transmission-related information to affiliates and to the public provides a “Gordian Knot” solution to undue discrimination in the provision of sensitive information. 72 72 EPSA at 4-5. 51. As currently provided in the regulations, in the event prohibited information is inadvertently passed to a prohibited employee, the violation can be cured by immediately posting such information on the transmission provider's Open Access Same-time Information System (OASIS) in the case of the electric industry, or on its Internet website, in the case of the natural gas industry. 73 However, if the unauthorized disclosure includes non-public transmission customer information (a subset of transmission function information), we propose that the posting consist only of a notice that such information has been disclosed, in order to preserve its confidentiality and prevent further potential harm to that customer. 74 We also propose to carry forward from the existing regulations the exceptions for a marketing employee's specific requests for transmission service and for situations where a transmission customer voluntarily consents to the release of its information. 75 In those cases where, despite the independent functioning rule, transmission function employees must interact with marketing function employees, as where the latter are also responsible for the maintenance and dispatch of generating units or need to be involved in maintaining reliability, we have proposed requiring the contemporaneous recording of such conversations, so that the Commission may ascertain that no prohibited information was passed in the course of otherwise permissible discussions. Depending on the circumstances, such recordation could consist of hand-written or typed notes, electronic recording such as e-mails and text messages, telephone recordings, or the like. It is recommended that for all planned communications, the Chief Compliance Officer designate one of the attendees to such conversations as the person charged with the responsibility for recording the conversation or taking notes. The Chief Compliance Officer must be responsible for retaining these records in an accessible form, and the transmission provider must make them available to Commission staff upon request. The Commission proposes that the records be maintained for a period of five years. 76 73 *See* proposed 18 CFR 358.7(a)(1). 74 *See* proposed 18 CFR 358.7(a)(2). 75 *See* proposed 18 CFR 358.7(b)-(c). 76 *See* proposed 18 CFR 358.7(h). 52. In accordance with the general aim of preventing undue preference, we propose retaining the existing regulation that a log be kept of any exercises of discretion or acts of waiver on the part of transmission providers. These should also be made available to Commission staff upon request. 77 Similarly, we proposed to retain the existing requirement that any offer of a discount must be posted on the transmission provider's OASIS or Internet Web site. 78 77 *See* proposed 18 CFR 358.4(4). 78 *See* proposed 18 CFR 358.4(b). 53. We also propose certain modifications to the posting requirements for transmission providers. We propose the elimination of an organizational chart, which is no longer necessary in the absence of a requirement to bring Energy Affiliates within the scope of the Standards. However, affiliates that employ marketing function employees still need to be listed. 79 Another proposed modification is to provide for a temporary suspension of posting requirements in the case of emergencies. 80 Commission staff has received requests for waivers in the wake of Hurricane Katrina and other natural disasters, when transmission providers found it impossible to keep up with their normal posting requirements. At such times, they should not be further burdened with the necessity of seeking a waiver. 79 *See* proposed 18 CFR 358.7(e)(l). 80 *See* proposed 18 CFR 358.7(g)(2). 54. We also propose to continue the existing requirements concerning the posting of written implementation procedures for the Standards, certain merger information (modifying the information to account for the deletion of the concept of Energy Affiliates), and employee transfer information. 81 81 *See* proposed 18 CFR 358.7(d)-(f). 55. The combination of public disclosure and contemporaneous recording required by the transparency rule should go a long way toward providing the Commission and market participants with the information needed to identify violations of the *per se* rules of the Standards, for which no further investigation would be needed. It also should enhance the ability of the Commission to monitor other behavior which may not be covered by the Standards themselves but which could be considered undue discrimination or preference under the FPA or NGA. E. *M* iscellaneous 1. General Principles 56. We propose to modify the statement of general principles currently found in 18 CFR 358.2 to reflect statutory language regarding the prohibition against undue discrimination and undue preference. 82 We also propose to include statements of principle that reflect the three core rules we propose here, those being the independent functioning rule, the no conduit rule, and the transparency rule. 83 82 The statutory language is contained in sections 205 and 206 of the FPA and sections 4 and 5 of the NGA. 83 *See* proposed 18 CFR 358.2. 2. Non-Discrimination Requirements 57. We propose to carry forward the existing regulations regarding the non-discrimination and non-preference requirements imposed on transmission providers, with some minor wording changes and combining of sections for simplicity and clarity. 84 While these requirements are in large part self-evident, as they reiterate statutory provisions, we believe that reiteration is helpful to emphasize the relationship of the Standards to the statutory prohibition against undue discrimination. 84 *See* proposed 18 CFR 358.4. 3. Applicability 58. In the paragraphs concerning applicability of the standards, we propose modifying § 358.1(a) to conform to the definitions proposed here, but otherwise to retain the restriction on applicability only to those pipelines that conduct transportation transactions with their marketing affiliates. We request comment as to whether this section and the following § 358.1(b), dealing with electric transmission providers, should be made parallel by deleting this provision (or in some other way). While a pipeline might conceivably have marketing affiliates with which it does not conduct transportation transactions, we note that pipelines need no longer be concerned with the inability to share information with the officers of such marketing affiliates, under our proposed reform of the independent functioning rule. 59. We propose to continue the existing exemption from the Standards for regional transmission organizations

(RTOs)and independent system operators (ISOs). We also propose to continue the present ability of transmission owners that are members of RTOs and ISOs to apply for a waiver from the Standards if they do not operate or control their transmission facilities and have no access to transmission function information. 85 85 *See* proposed 18 CFR 358.1(c). 60. The initial NOPR raised the question as to when a new natural gas transmission provider should become subject to the Standards. Under Order No. 497, a natural gas transmission provider became subject to the Standards when it commenced transportation transactions with its marketing or brokering affiliate. 86 In Order No. 2004-B, the Commission stated that a new interstate pipeline should observe the Standards when the pipeline is granted and accepts a certificate of public convenience and necessity and becomes subject to the Commission's jurisdiction under the NGA. 87 This was one of the items appealed by the gas industry, and although it was not addressed in the *National Fuel* decision, it was vacated *sub silencio.* In the Interim Rule, the Commission did not require natural gas transmission providers to observe the Standards until such time as they commenced transportation transactions with their marketing affiliates. 88 86 Former 18 CFR 161.3. 87 Order No. 2004-B at P 137. 88 Interim Rule at P 26. 61. As we observed in the initial NOPR, we do not have any evidence that affiliate abuse has occurred in the time period before transportation commences. Therefore, we propose not to require new natural gas transmission providers to observe the Standards until the earlier of the date they have a rate on file with the Commission, or the date on which they commence transportation transactions. We propose to apply the same rule to electric transmission providers. 89 89 *See* proposed 18 CFR 358.8(a). 4. Updates and Ministerial Corrections 62. We carry forward proposals from the initial NOPR to delete outdated references, such as those referring to the date for submitting a plan and a schedule for implementing the Standards. 90 We also revise language from the existing regulations where necessary to correct such ministerial matters as grammar and punctuation, and to account for the new definitions we propose here. Finally, we propose to reorganize sections where necessary to place related provisions in their logical sequence. For example, provisions regarding Energy Affiliates have been deleted, and provisions involving posting requirements have been gathered together in § 358.7, the transparency rule. 90 *See* proposed 18 CFR 358.8(b). 63. We propose modifying the section on definitions by providing new definitions that conform with the reforms proposed in this NOPR, deleting existing definitions no longer needed in light of our new proposals, and placing the definitions in alphabetical order. 91 We propose to carry forward the current definitions of “transmission provider,” but request comment on whether the separate definitions for electric and gas should be made parallel by referring to the applicable sections of the Code of Federal Regulations in each definition. 92 91 *See* proposed 18 CFR 358.3. 92 *See* proposed 18 CFR 358.3(k). 64. Except as noted above, we propose retaining the bulk of the existing requirements for posting notices on the OASIS or Internet Web site, with minor wording revisions for clarity. 93 We propose retaining the requirement regarding the maintenance of books and records. 94 With minor wording changes to reflect our proposed new definitions, we also propose to retain the requirement that written procedures be posted on the OASIS or Internet Web site and be distributed to selected employees. 95 However, we propose to delete the current requirement that such written procedures also be filed with the Commission. 93 *See* proposed 18 CFR 358.7(d)-(g). 94 *See* proposed 18 CFR 358.8 (d). 95 *See* proposed 18 CFR 358.7(d) and 358.8(b). IV. Applicability of the Proposed Rule and Compliance Procedures 65. The Commission has a responsibility under FPA sections 205 and 206 and NGA sections 4 and 5 to ensure that the rates, charges, classifications, and service of public utilities (and any rule, regulation, practice, or contract affecting any of these) are just and reasonable and not unduly discriminatory or preferential, and to remedy undue discrimination and undue preference in the provision of such services. In fulfilling its responsibilities under FPA sections 205 and 206 and NGA sections 4 and 5, the Commission is required to address, and has the authority to remedy, undue discrimination and undue preference. Our action in this NOPR proposes to fulfill those responsibilities by proposing reforms to the Standards, which are designed to provide *per se* rules preventing undue discrimination and undue preference by transmission providers in the sale for resale of natural gas and electric energy. 66. The Commission proposes to apply the Final Rule in this proceeding to all transmission providers, who will be required to abide by its provisions, including the designation of a Chief Compliance Officer and the provision of training to its employees. Records of compliance are required to be maintained by the transmission provider for inspection by the Commission. V. Information Collection Statement 67. The Office of Management and Budget

(OMB)regulations require approval of certain information collection requirements imposed by agency rules. 96 96 5 CFR 1320.11. 68. Previously, the Commission submitted to OMB the information collection requirements arising from the Standards of Compliance adopted in Order No. 2004. OMB approved those requirements. 97 The revisions to the Standards proposed in this issuance are modifications of already approved information collection procedures, and do not impose any significant additional information collection burden on industry participants. Many of the changes consist merely of the rewording of definitions and the reordering of the various information collection requirements. Some information collection requirements have been deleted, such as the posting of organizational charts. A requirement has been added concerning the maintenance of records regarding certain informational exchanges between transmission function employees and marketing function employees, as well as a requirement regarding the posting of contact information regarding the identification of the Chief Compliance Officer. Neither of these should impose a significant burden on the transmission providers. In fact, by proposing that the Standards will no longer govern the relationship between transmission providers and their Energy Affiliates, the overall information collection burden will likely decrease. 97 Letter from OMB to the Commission (Jan. 20, 2004) (OMB Control Number 1902-0157); “Notice of Action” letter from OMB to the Commission (Jan. 20, 2004) (OMB Control Number 1902-0173). 69. The Commission is submitting notification of the information collection requirements imposed in the NOPR to OMB for its review and approval under section 3507(d) of the Paperwork Reduction Act of 1995. 98 Comments are solicited on the Commission's need for this information, whether the information will have practical utility, the accuracy of provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods of minimizing respondent's burden, including the use of automated information techniques. 98 44 U.S.C. 3507(d) (2000 and Supp. V 2005). 70. OMB regulations require OMB to approve certain information collection requirements imposed by agency rule. The Commission is submitting notification of this proposed rule to OMB. *Title:* FERC-592 and 717. *Action:* Proposed Collection. *OMB Control No.:* 1902-0157-1902-173. *Respondents:* Business or other for profit. *Frequency of Responses:* On occasion. *Necessity of the Information:* The information is necessary to ensure that all regulated transmission providers treat all transmission customers on a non-discriminatory basis. *Internal Review:* The Commission has reviewed the requirements pertaining to natural gas pipelines and transmitting electric utilities and determined the proposed revisions are necessary to clarify the Standards, enhance compliance, increase efficiencies, and conform with a recent court decision. 71. These requirements conform to the Commission's plan for efficient information collection, communication, and management with the natural gas and electric utility industries. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information requirements. 72. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 [Attention: Michael Miller, Office of the Chief Information Officer, phone:

(202)502-8415, fax:

(202)208-2425, e-mail: *Michael.Miller@FERC.gov.* ] Comments on the requirements of the proposed rule also may be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 [Attention Desk Officer for the Federal Energy Regulatory Commission]. VI. Environmental Analysis 73. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 99 The Commission concludes that neither an Environmental Assessment nor an Environmental Impact Statement is required for this NOPR under § 380.4 of the Commission's regulations for certain actions. The actions proposed here fall within the categorical exclusions because this rule is clarifying and corrective, does not substantially change the effect of the regulations being amended and calls for information gathering and dissemination. 100 Therefore, an environmental assessment is unnecessary and has not been prepared for this rulemaking. 99 Order No. 486, Regulations Implementing the National Environmental Policy Act of 1969, FERC Stats. & Regs. ¶ 30,783 (1987). 100 18 CFR 380.4(a)(2)(ii) and 380.4(a)(5) (2007). VII. Regulatory Flexibility Act 74. The Regulatory Flexibility Act of 1980

(RFA)101 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. Because most transmission providers do not fall within the definition of “small entity,” 102 the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities. Furthermore, small entities may seek a waiver of these requirements, and those small entities that have already received a waiver of the Standards would be unaffected by the requirements of this proposed rulemaking. 101 5 U.S.C. 601-612 (2000 and Supp. V 2005). 102 *See* 5 U.S.C. 601(3) and

(6)(2000 and Supp. V 2005). VIII. Comment Procedures 75. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due May 12, 2008. Comments must refer to Docket No. RM07-1-000, and must include the commenter's name, the organization he or she represents, if applicable, and his or her address. 76. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at: *http://www.ferc.gov.* The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing. 77. Commenters who are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. 78. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this reissued NOPR are not required to serve copies of their comments on other commenters. IX. Document Availability 79. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( *http://www.ferc.gov* ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 80. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 81. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or e-mail at: *ferconlinesupport@ferc.gov* , or the Public Reference Room at

(202)502-8371, TTY

(202)502-8659. E-mail the Public Reference Room at: *public.referenceroom@ferc.gov.* List of Subjects in 18 CFR Part 358 Electric power plants, Electric utilities, Natural gas, Reporting and recordkeeping requirements. By direction of the Commission. Nathaniel J. Davis, Sr., Deputy Secretary. In consideration of the foregoing, the Commission proposes to revise part 358, Chapter I, Title 18, *Code of Federal Regulations,* to read as follows: PART 358—STANDARDS OF CONDUCT Sec. 358.1 Applicability. 358.2 General principles. 358.3 Definitions. 358.4 Non-discrimination requirements. 358.5 Independent functioning rule. 358.6 No conduit rule. 358.7 Transparency rule. 358.8 Implementation requirements. Authority: 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. § 358.1 Applicability.

(a)This part applies to any interstate natural gas pipeline that transports gas for others pursuant to subpart A of part 157 or subparts B or G of part 284 of this chapter and conducts transmission transactions with an affiliate that engages in marketing functions.

(b)This part applies to any public utility that owns, operates, or controls facilities used for the transmission of electric energy in interstate commerce.

(c)This part does not apply to a public utility transmission provider that is a Commission-approved Independent System Operator

(ISO)or Regional Transmission Organization (RTO). If a public utility transmission owner participates in a Commission-approved ISO or RTO and does not operate or control its transmission system and has no access to transmission function information, it may request an exemption from this part.

(d)A transmission provider may file a request for an exemption from all or some of the requirements of this part for good cause. § 358.2 General principles.

(a)A transmission provider must treat all transmission customers, affiliated and non-affiliated, on a not unduly discriminatory basis, and must not make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage with respect to any transportation of natural gas or transmission of electric energy in interstate commerce, or with respect to the wholesale sale of natural gas or of electric energy in interstate commerce.

(b)A transmission provider's transmission function employees must function independently from its marketing function employees, except as permitted in this part or otherwise permitted by Commission order.

(c)Transmission function information may not be passed to or received by a transmission provider's marketing function employees, unless such information has been made public, except as permitted in this part or otherwise permitted by Commission order.

(d)A transmission provider must create, and maintain for a period of five years, records of permitted communications between transmission function employees and marketing function employees. § 358.3 Definitions.

(a)*Affiliate* of a specified company means:

(1)A division that operates as a functional unit of the specified company or, for any person other than an exempt wholesale generator:

(i)Any person that directly or indirectly owns, controls, or holds with power to vote, 10 percent or more of the outstanding voting securities of the specified company;

(ii)Any company 10 percent or more of whose outstanding voting securities are owned, controlled, or held with power to vote, directly or indirectly, by the specified company;

(iii)Any person or class of persons that the Commission determines, after appropriate notice and opportunity for hearing, to stand in such relation to the specified company that there is liable to be an absence of arm's-length bargaining in transactions between them as to make it necessary or appropriate in the public interest or for the protection of investors or consumers that the person be treated as an affiliate; and

(iv)Any person that is under common control with the specified company.

(v)For purposes of paragraph (a)(1)(iv) of this section, owning, controlling or holding with power to vote, less than 10 percent of the outstanding voting securities of a specified company creates a rebuttable presumption of lack of control.

(2)For any exempt wholesale generator (as defined under § 366.1 of this chapter), consistent with section 214 of the Federal Power Act (16 U.S.C. 824m), which provides that “affiliate” shall have the same meaning as provided in section 2(a) of the Public Utility Holding Company Act of 1935 (15 U.S.C. 79b(a)(11)):

(i)Any person that directly or indirectly owns, controls, or holds with power to vote, 5 percent or more of the outstanding voting securities of the specified company;

(ii)Any company 5 percent or more of whose outstanding voting securities are owned, controlled, or held with power to vote, directly or indirectly, by the specified company;

(iii)Any individual who is an officer or director of the specified company, or of any company which is an affiliate thereof under paragraph (a)(2)(i) of this section; and

(iv)any person or class of persons that the Commission determines, after appropriate notice and opportunity for hearing, to stand in such relation to the specified company that there is liable to be an absence of arm's-length bargaining in transactions between them as to make it necessary or appropriate in the public interest or for the protection of investors or consumers that the person be treated as an affiliate.

(b)*Internet Web site* refers to the Internet location where an interstate natural gas pipeline posts the information, by electronic means, required by §§ 284.12 and 284.13 of this chapter.

(c)*Marketing functions* means the sale for resale in interstate commerce, or the submission of offers or bids to buy or sell natural gas or electric energy or capacity, demand response, virtual electric or gas supply or demand, or financial transmission rights in interstate commerce, subject to the following exemptions:

(1)Bundled retail sales, including sales of electric energy made by providers of last resort (POLRs),

(2)Incidental purchases or sales of natural gas to operate interstate natural gas pipeline transmission facilities,

(3)Sales of natural gas solely from the transmission provider's own production,

(4)Sales of natural gas solely from the transmission provider's own gathering or processing facilities, and

(5)Sales by an intrastate natural gas pipeline or local distribution company making an on-system sale.

(d)*Marketing function employee* means an employee, contractor, consultant or agent of a transmission provider or of an affiliate of a transmission provider who actively and personally engages in marketing functions. An officer, director or other supervisory employee is not considered to be a marketing function employee if he or she does not actively and personally engage in marketing functions.

(e)*Open Access Same-time Information System* or *OASIS* refers to the Internet location where a public utility posts the information, by electronic means, required by part 37 of this chapter.

(f)*Transmission* means electric transmission, network or point-to-point service, ancillary services or other methods of electric transmission, or the interconnection with jurisdictional transmission facilities, under part 35 of this chapter; and natural gas transportation, storage, exchange, backhaul, or displacement service provided pursuant to subpart A of part 157 or subparts B or G of part 284 of this chapter.

(g)*Transmission customer* means any eligible customer, shipper or designated agent that can or does execute a transmission service agreement or can or does receive transmission service, including all persons who have pending requests for transmission service or for information regarding transmission.

(h)*Transmission functions* means transmission system operations and the planning, directing, organizing or carrying out of transmission operations, including the granting and denying of transmission service requests.

(i)*Transmission function employee* means an employee, contractor, consultant or agent of a transmission provider who actively and personally engages in transmission functions. An officer, director or other supervisory employee is not considered to be a transmission function employee if he or she does not actively and personally engage in transmission functions.

(j)*Transmission function information* means information relating to transmission functions.

(k)*Transmission provider* means:

(1)Any public utility that owns, operates or controls facilities used for the transmission of electric energy in interstate commerce; or

(2)Any interstate natural gas pipeline that transports gas for others pursuant to subpart A of part 157 or subparts B or G of part 284 of this chapter.

(3)A transmission provider does not include a natural gas storage provider authorized to charge market-based rates that is not interconnected with the jurisdictional facilities of any affiliated interstate natural gas pipeline, has no exclusive franchise area, no captive ratepayers and no market power.

(l)*Transmission service* means the provision of any transmission as defined in § 358.3(f). § 358.4 Non-discrimination requirements.

(a)*Implementing tariffs.*

(1)A transmission provider must strictly enforce all tariff provisions relating to the sale or purchase of open access transmission service, if the tariff provisions do not permit the use of discretion.

(2)A transmission provider must apply all tariff provisions relating to the sale or purchase of open access transmission service in a fair and impartial manner that treats all transmission customers in a not unduly discriminatory manner, if the tariff provisions permit the use of discretion.

(3)A transmission provider may not, through its tariffs or otherwise, give undue preference to any person in matters relating to the sale or purchase of transmission service (including, but not limited to, issues of price, curtailments, scheduling, priority, ancillary services, or balancing).

(4)A transmission provider must process all similar requests for transmission in the same manner and within the same period of time.

(5)A transmission provider must post on the OASIS or Internet Web site, as applicable, notice of each waiver of a tariff provision that it grants, and notice of each exercise of discretion that it exercises, detailing the circumstances and manner under which the waiver or exercise of discretion occurred. The posting must be made within one business day of the act of a waiver or exercise of discretion. The transmission provider must also maintain a log of the acts of waiver and exercises of discretion, and must make it available to the Commission upon request. The records must be kept for a period of five years from the date of each act of waiver or exercise of discretion.

(b)*Discounts.* A transmission provider must post any offer of a discount for any transmission service made on the OASIS or Internet Web site, as applicable, contemporaneous with the time that the offer is contractually binding. The posting must remain on the OASIS or Internet Web site for 60 days from the date of posting. The posting must include:

(1)The name of the customer involved in the discount and whether it is an affiliate or whether an affiliate is involved in the transaction;

(2)The rate offered;

(3)The maximum rate;

(4)The time period for which the discount would apply;

(5)The quantity of power or gas upon which the discount is based;

(6)The delivery points under the transaction; and

(7)Any conditions or requirements applicable to the discount. § 358.5 Independent functioning rule.

(a)*General rule.* Except as permitted in this part or otherwise permitted by Commission order, a transmission provider's transmission function employees must function independently of its marketing function employees.

(b)*Exemption for permitted information exchanges.* Notwithstanding the requirements of paragraph

(a)of this section, a transmission provider's transmission function employees and marketing function employees may exchange certain information, in which case the transmission provider must make a contemporaneous record of the information exchange, subject to an exception for emergency circumstances, as provided in § 358.7(h). The permitted information is as follows:

(1)Information regarding generation necessary to perform generation dispatch, or

(2)Information necessary to maintain or restore operation of the transmission system.

(c)*Separation of functions.*

(1)A transmission provider is prohibited from permitting its marketing function employees to:

(i)Conduct transmission functions; or

(ii)Have access to the system control center or similar facilities used for transmission operations that differs in any way from the access available to other transmission customers.

(2)A transmission provider is prohibited from permitting its transmission function employees to conduct marketing functions. § 358.6 No conduit rule.

(a)*Prohibited disclosure and receipt.*

(1)A transmission provider's transmission function employees are prohibited from disclosing non-public transmission function information to their transmission provider's marketing function employees.

(2)A transmission provider's marketing function employees are prohibited from receiving non-public transmission function information from any source.

(3)A transmission provider is prohibited from using anyone as a conduit for the disclosure of non-public transmission function information to its marketing function employees.

(4)An employee of a transmission provider, and an employee of an affiliate of a transmission provider that is engaged in marketing functions, is prohibited from disclosing non-public transmission function information to any of the transmission provider's marketing function employees.

(b)*Exemption for permitted information exchanges.* Notwithstanding the requirements of paragraph

(1)Information regarding generation necessary to perform generation dispatch, or

(2)Information necessary to maintain or restore operation of the transmission system. § 358.7 Transparency rule.

(a)*Contemporaneous disclosure.*

(1)If a transmission provider discloses non-public transmission function information, other than non-public transmission customer information, in a manner contrary to the requirements of § 358.6(a), the transmission provider must immediately post the information that was disclosed on the OASIS or Internet Web site, as applicable.

(2)If a transmission provider discloses non-public transmission customer information in a manner contrary to the requirements of § 358.6(a), the transmission provider must immediately post notice on the OASIS or Internet website, as applicable, that non-public transmission customer information was disclosed.

(b)*Exception for specific transaction information.* A transmission provider is not required to contemporaneously disclose information covered by § 358.6(a) if the information relates solely to a marketing function employee's specific request for transmission service.

(c)*Voluntary consent provision.* A transmission customer may voluntarily consent, in writing, to allow the transmission provider to disclose the transmission customer's information to the transmission provider's marketing function employees. If the transmission customer authorizes the transmission provider to disclose its information to marketing function employees, the transmission provider must post notice on the OASIS or Internet website of that consent along with a statement that it did not provide any preferences, either operational or rate-related, in exchange for that voluntary consent.

(d)*Posting written procedures on the public Internet.* A transmission provider must post on the OASIS or Internet website, as applicable, current written procedures implementing the standards of conduct.

(e)*Identification of affiliate information on the public Internet.*

(1)A transmission provider must post on its OASIS or Internet website, as applicable, the names and addresses of all its affiliates that employ or retain marketing function employees.

(2)A transmission provider must post on its OASIS or Internet website, as applicable, a complete list of the employee-staffed facilities shared by the transmission provider and any of its affiliates that employ or retain marketing function employees. The list must include the types of facilities shared and the addresses of the facilities.

(3)The transmission provider must post information concerning potential merger partners as affiliates that may employ or retain marketing function employees, within seven days after the potential merger is announced.

(f)*Identification of employee information on the public Internet.*

(1)A transmission provider must post on its OASIS or Internet website, as applicable, the job titles and job descriptions of its transmission function employees, with the exception of clerical, maintenance, and field positions.

(2)A transmission provider must post a notice on the OASIS or Internet website, as applicable, of any transfer of a transmission function employee to a position as a marketing function employee, or any transfer of a marketing function employee to a position as a transmission function employee. The information posted under this section must remain on the OASIS or Internet Web site, as applicable, for 90 days. No such job transfer may be used as a means to circumvent any provision of this part. The information to be posted must include:

(i)The name of the transferring employee,

(ii)The respective titles held while performing each function (i.e., as a transmission function employee and as a marketing function employee), and

(iii)The effective date of the transfer.

(g)*Timing and general requirements of postings on the public Internet.*

(1)A transmission provider must update on its OASIS or Internet Web site, as applicable, the information required by § 358.7 within seven business days of any change, and post the date on which the information was updated.

(2)In the event an emergency, such as a flood, fire or hurricane, severely disrupts a transmission provider's normal business operations, the posting requirements in this part may be suspended by the transmission provider. If the disruption lasts longer than one month, the transmission provider must so notify the Commission and may seek a further exemption from the posting requirements.

(3)All OASIS or Internet Web site postings required by this part must comply, as applicable, with the requirements of § 37.6 or § 284.12(a) and (b)(3)(v) of this chapter, and must be sufficiently prominent as to be readily accessible.

(h)*Recordation of permitted information exchanges.* Notwithstanding the requirements of §§ 358.5(a) and 358.6(a), a transmission provider's transmission function employees and marketing function employees may exchange certain information, in which case the transmission provider must make and retain a contemporaneous record of all such exchanges except in emergency circumstances, in which case a record must be made of the exchange as soon as practicable after the fact. The transmission provider shall make the record available to the Commission upon request. The record may consist of hand-written or typed notes, electronic records such as e-mails and text messages, recorded telephone exchanges, and the like, and must be retained for a period of five years. The permitted information is as follows:

(1)Information regarding generation necessary to perform generation dispatch, or

(2)Information necessary to maintain or restore operation of the transmission system. § 358.8 Implementation requirements.

(a)*Effective date.* A transmission provider must be in full compliance with the standards of conduct by the earlier of:

(1)The date it has a rate on file with the Commission, or

(2)The date it commences transmission transactions.

(b)*Compliance measures and written procedures.*

(1)A transmission provider must implement measures to ensure that the requirements of §§ 358.5(a) and 358.6(a) are observed by its employees and by the employees of its affiliates.

(2)A transmission provider must distribute the written procedures referred to in § 358.7(d) to all its transmission function employees, marketing function employees, officers, directors, supervisory employees, and any other employees likely to become privy to transmission function information.

(c)*Training and compliance personnel.*

(1)A transmission provider must provide annual training on the standards of conduct to all the employees listed in paragraph (b)(2) of this section. The transmission provider must provide training on the standards of conduct to new employees in the categories listed in paragraph (b)(2) of this section, within the first 30 days of their employment. The transmission provider must require each employee who has taken the training to certify electronically or in writing that s/he has completed the training.

(2)A transmission provider must designate a Chief Compliance Officer who will be responsible for standards of conduct compliance. The transmission provider must post the name of the Chief Compliance Officer and provide his or her contact information on the OASIS or Internet Web site, as applicable.

(d)*Books and records.* A transmission provider must maintain its books of account and records (as prescribed under parts 101, 125, 201 and 225 of this chapter) separately from those of its affiliates that employ or retain marketing function employees, and these must be available for Commission inspections. Note: The following appendix will not be published in the Code of Federal Regulations. Appendix A: Table of Commenters and Abbreviations for Commenters An asterisk indicates that the commenter filed both initial and reply comments. 1. Missouri Public Service Commission Missouri PSC. 2. Comments of the State of Alaska on Notice of Proposed Rulemaking Alaska. 3. Rulemaking Comments of New Mexico Attorney General Office New Mexico AG. 4. Rulemaking Comment of National Association of Regulatory Utility Commissioners* NARUC. 5. Notice of Intervention of California Public Utilities Commission* California PUC. 6. Initial Comments of * * * the Public Utilities Commission of Ohio PUC of Ohio. 7. Joint Comments of the Washington Utilities and Transportation Commission, the Idaho Public Utilities Commission, and the PUC of Oregon* Washington, Idaho and Oregon state commissions. 8. Georgia Public Service Commissioner Stan Wise Commissioner Wise. 9. Rulemaking Comment of South Carolina Public Service Authority Santee Cooper. 10. Initial Comments of the Natural Gas Supply Association* NGSA. 11. Initial Comments of the American Gas Association* AGA. 12. Rulemaking Comment of Interstate Natural Gas Association of America* INGAA. 13. Comments of Texas Pipeline Association Texas Pipeline Ass'n. 14. Comments of the American Public Gas Association* APGA. 15. Initial Comments of the National Fuel Companies* National Fuel Companies. 16. Rulemaking Comment of Spectra Energy Transmission, LLC Spectra. 17. Rulemaking Comments of Enbridge Energy Partners, L.P. and Enbridge, Inc Enbridge. 18. Initial Comments of Williams Four Corners LLC Williams. 19. Rulemaking Comment of Questar Market Resources, INC Questar Market Resources. 20. Rulemaking Comment of Questar Gas Company Questar Gas Co. 21. Comments of Boardwalk Pipeline Partners, LP Boardwalk. 22. Rulemaking Comments of Williston Basin Interstate Pipeline Company Williston. 23. Comments Of NiSource Inc NiSource. 24. Rulemaking Comment of Alliance Pipeline L.P Alliance. 25. Rulemaking Comment of USG Pipeline Company, et al USG. 26. Initial Comments of Exxon Mobil Corporation ExxonMobil. 27. Rulemaking Comment of DCP Midstream, LP DCP Midstream. 28. Initial Comments of El Paso Corporation El Paso. 29. Rulemaking Comment of Northwest Natural Gas Company and KB Pipeline Company Northwest Natural. 30. Initial Comments of Southwest Gas Corporation Southwest Gas. 31. Rulemaking Comment of New Jersey Resources Corporation NJ Resources. 32. Initial Comments of Sequent Energy Management, LP Sequent. 33. Comments of CenterPoint Energy Gas Transmission Company CenterPoint. 34. Comments of KO Transmission Company KO Transmission. 35. Rulemaking Comment of Dominion Resources Services, Inc Dominion Resources. 36. Comments of Suez Energy North America, Inc Suez. 37. Comments of Edison Electric Institute* EEI. 38. Rulemaking Comment of the Large Public Power Council* LPPC. 39. Comments of the Electric Power Supply Association* EPSA. 40. Rulemaking Comment of Transmission Dependent Utility Systems* TDU Systems. 41. Comments of the American Public Power Association* APPA. 42. Rulemaking Comments of National Rural Electric Cooperative Association NRECA. 43. Rulemaking Comment of Southwest Area Transmission Sub-Regional Planning Group* SWAT. 44. Rulemaking Comment of Retail Energy Supply Association* Retail Energy Supply Ass'n. 45. Rulemaking Comment of Transmission Access Policy Study Group* TAPS. 46. Rulemaking Comment of the Western Utilities* Western Utilities Compliance Group. 47. Rulemaking Comment of Idaho Power Company Idaho Power. 48. Rulemaking Comment of Tucson Electric Power Company Tucson Electric. 49. Initial Comments of Nevada Power Company and Sierra Pacific Power Company Nevada Companies. 50. Rulemaking Comment of Arizona Public Service Company Arizona PSC. 51. Comments of Public Service Co. of New Mexico PSC of New Mexico. 52. Joint Initial Comments of Community Power Alliance Members (i.e., Entergy Services, Inc.; Salt River Project Ag. Imp. and Power Dist.; Progress Energy; and, Southern Co.)* CPA. 53. Initial Comments of Southern Company Services, Inc Southern Co. Services. 54. Comments of Entergy Services, Inc Entergy. 55. Rulemaking Comment of The AES Corporation AES. 56. Rulemaking Comment of E.ON U.S. LLC E.ON. 57. Comments of Reliant Energy, Inc Reliant. 58. Comments of DTE Energy Company DTE. 59. Rulemaking Comments of PSEG Energy Resources & Trade LLC, et al PSEG. 60. Rulemaking Comment of KeySpan Corporation KeySpan. 61. Rulemaking Comment of Bonneville Power Administration* Bonneville. 62. Comments of the Transmission Agency of Northern California* TANC. 63. Rulemaking Comment of Portland General Electric Company Portland General. 64. Rulemaking Comment of Florida Power & Light Company Florida Power & Light. 65. Rulemaking Comment of FPL Group, Inc FPL Group. 66. Rulemaking Comment of Otter Tail Power Company Otter Tail. 67. Comments of Wisconsin Electric Power Company Wisconsin Electric. 68. Rulemaking Comment of Puget Sound Energy, Inc Puget Sound. 69. Rulemaking Comment of Exelon Corporation Exelon. 70. Rulemaking Comment of NSTAR Electric & Gas Corporation NSTAR. 71. Comments of NorthWestern Corporation NorthWestern. 72. Rulemaking Comment of the Indicated New York Transmission Owners Indicated NY TOs. 73. Comments of FirstEnergy Service Company FirstEnergy. 74. Rulemaking Comments of American Transmission Company LLC American Trans. Co. 75. Joint Comments of Progress Energy, Inc., ElectriCities of North Carolina, Inc. and North Carolina Electric Membership Corporation Progress. 76. Motion To Intervene And Comments of Pacific Gas & Electric Company PG&E. 77. Comments of Ameren Services Company Ameren. 78. Initial Comments of Oklahoma Gas and Electric Company Oklahoma Gas & Electric. 79. Rulemaking Comment of Southern California Edison Company SCE. 80. Rulemaking Comment of Morgan Stanley Capital Group Inc.* MSCGI. 81. Comments of National Grid USA National Grid. 82. Rulemaking Comment of MidAmerican Energy Company, PacifiCorp, Kern River Gas Transmission Company, and Northern Natural Gas Company MidAmerican. 83. Initial Comments of SCANA Corp. SCANA. 84. Rulemaking Comment of Xcel Energy Services Inc Xcel. 85. Comments of Sempra Sempra. 86. Florida Public Service Commission (Reply comments only) Florida PSC. 87. ITC—Mich. Electric Transmission (Reply comments only) ITC. 88. Federal Trade Commission (Reply comments only) FTC. 89. Alabama PSC (Reply comments only) Alabama PSC. 90. Chevron (Reply comments only) Chevron. 91. Aux Sable Liquids (Reply comments only) Aux Sable. 92. Calypso/Broadwater (Reply comments only) Calypso. 93. Anadarko* Anadarko. 94. BG E&P Alaska (Reply comments only) BG E&P Alaska. 95. Fayetteville (Reply comments only) Fayetteville. [FR Doc. E8-6261 Filed 3-26-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 Employment Standards Administration Wage and Hour Division 29 CFR Parts 501, 780, and 788 RIN 1205-AB55 Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement; Extension of Comment Period AGENCIES: Employment and Training Administration, Wage and Hour Division, Employment Standards Administration, Labor. ACTION: Proposed rule; extension of comment period. SUMMARY: The Employment and Training Administration and the Employment Standards Administration recently issued a proposed rule to modernize the application process for and enforcement of temporary alien agricultural (H-2A) labor certifications. 73 FR 8538 (Feb. 13, 2008). The proposed rule provided a comment period through March 31, 2008. The agencies have received several requests to extend the comment period and have decided to extend the comment period through April 14, 2008. DATES: The comment period for the notice of proposed rulemaking published February 13, 2008 (73 FR 8538) is extended through April 14, 2008. Interested persons are invited to submit written comments on the proposed rule on or before April 14, 2008. ADDRESSES: You may submit comments, identified by Regulatory Information Number

(RIN)1205-AB55, by any one of the following methods: • *Federal e-Rulemaking Portal: http://www.regulations.gov:* Follow the Web site instructions for submitting comments. • *Mail:* Please submit all written comments (including disk and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210. • *Hand Delivery/Courier:* Please submit all comments to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210. Please submit your comments by only one method. The Department will post all comments received on *http://www.regulations.gov* without making any change to the comments, including any personal information provided. The *http://www.regulations.gov* Web site is the Federal e-rulemaking portal and all comments posted there are available and accessible to the public. The Department cautions commenters not to include their personal information such as Social Security Numbers, personal addresses, telephone numbers, and e-mail addresses in their comments, as such submitted information will become viewable by the public via the *http://www.regulations.gov* Web site. It is the responsibility of the commenter to safeguard his or her information. Comments submitted through *http://www.regulations.gov* will not include the commenter's e-mail address unless the commenter chooses to include that information as part of his or her comment. Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments via the Web site indicated above. *Docket:* For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at: *http://www.regulations.gov.* The Department will also make all the comments it receives available for public inspection at the ETA Office of Policy Development and Research at the above address during normal business hours. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the rule available, upon request, in large print and as electronic file on computer disk. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact the Office of Policy Development and Research at

(202)693-3700 (VOICE) (this is not a toll-free number) or 1-877-889-5627 (TTY/TDD). FOR FURTHER INFORMATION CONTACT: For further information regarding 20 CFR part 655, contact Sherril Hurd, Acting Team Leader, Regulations Unit, Employment and Training, Administration (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210; Telephone

(202)693-3700 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. For further information regarding 29 CFR parts 501, 780 and 788, contact James Kessler, Farm Labor Team Leader, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210; Telephone

(202)693-0070 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. SUPPLEMENTARY INFORMATION: In February 2008, the Employment and Training Administration and the Employment Standards Administration of the Department of Labor issued a Notice of Proposed Rulemaking rule to modernize the application process for and enforcement of temporary alien agricultural (H-2A) labor certifications. 73 FR 8538 (Feb. 13, 2008). The proposed rule provided a comment period through March 31, 2008. The agencies have received several requests to extend the comment period and have decided to extend the comment period. Given the complexity of the proposed rule and the intense level of interest, the comment period is being extended through April 14, 2008. Signed in Washington, DC, this 20th day of March, 2008. Douglas F. Small, Deputy Assistant Secretary, Employment and Training Administration. Alexander J. Passantino, Acting Administrator, Wage and Hour Division, Employment Standards Administration. [FR Doc. E8-6121 Filed 3-26-08; 8:45 am] BILLING CODE 4510-FP-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-0AR-2007-1176; A-1-FRL-8546-8] Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Diesel Engine Anti-Idling Regulation AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to approve a State Implementation Plan

(SIP)revision submitted on November 29, 2007 by the State of Rhode Island. This SIP revision includes a regulation that prohibits the unnecessary idling of diesel engines and vehicles in Rhode Island. The regulation sets limits for the amount of time and under what conditions diesel engines may idle. EPA is proposing that the standards and requirements set by the rule will strengthen the Rhode Island SIP. The intended effect of this action is to propose approval of this rule into the Rhode Island SIP. EPA is proposing approval of this rule pursuant to the Clean Air Act. DATES: Written comments must be received on or before April 28, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-0AR-2007-1176 by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *arnold.anne@epa.gov* . 3. *Fax:*

(617)918-0047. 4. *Mail:* “EPA-R01-0AR-2007-1176”, Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023, or 5. *Hand Delivery or Courier.* Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. Please see the direct final rule which is located in the Rules Section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Robert C. Judge, Office of Ecosystem Protection, EPA New England, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023; 617-918-1045 (phone); 617-918-0045 (fax); e-mail at *judge.robert@epa.gov.* SUPPLEMENTARY INFORMATION: In the Final Rules Section of this **Federal Register** , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules Section of this **Federal Register** . Dated: March 14, 2008. Robert W. Varney, Regional Administrator, EPA New England. [FR Doc. E8-6188 Filed 3-26-08; 8:45 am] BILLING CODE 6560-50-P 73 60 Thursday, March 27, 2008 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No: APHIS-2008-0012] Notice of Availability of Assessments of the Highly Pathogenic Avian Influenza Subtype H5N1 Status of Denmark and France AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of availability and request for comments. SUMMARY: We are advising the public that the Animal and Plant Health Inspection Service has prepared assessments of the animal health status of Denmark and France relative to the H5N1 subtype of highly pathogenic avian influenza (HPAI), following single outbreaks of HPAI subtype H5N1 in domestic poultry in each of those countries. The assessments present our evaluation of the HPAI H5N1 detection, control, and eradication measures in place in Denmark and France at the time of the outbreaks and of the actions taken by each country in response to the outbreaks, as well as our assessment of the present status of each country with respect to HPAI subtype H5N1. We are making these risk assessments available to the public for review and comment. DATES: We will consider all comments we receive prior to April 28, 2008. ADDRESSES: You may submit comments by either of the following methods: • Federal eRulemaking Portal: Go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0012* to submit or view comments and to view supporting and related materials available electronically. • Postal Mail/Commercial Delivery: Please send two copies of your comment to Docket No. APHIS-2008-0012, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2008-0012. *Reading Room:* You may read any comments that we receive on the assessments in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Dr. Julia Punderson, Regionalization Evaluation Services-Import, Sanitary Trade Issues Team, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231, 301-734-4356. SUPPLEMENTARY INFORMATION: Background Under the Animal Health Protection Act (7 U.S.C. 8301 *et seq.* ), the Animal and Plant Health Inspection Service (APHIS) has the authority to prohibit or restrict the importation into the United States of animals, animal products, and other articles in order to prevent the introduction of diseases and pests into the U.S. livestock and poultry populations. Highly pathogenic avian influenza

(HPAI)is a zoonotic disease of poultry. The H5N1 subtype of HPAI is an extremely infectious and fatal form of the disease. HPAI can strike poultry quickly without any warning signs of infection and, once established, can spread rapidly from flock to flock. HPAI viruses can also be spread by manure, equipment, vehicles, egg flats, crates, and people whose clothing or shoes have come in contact with the virus. HPAI viruses can remain viable at moderate temperatures for long periods in the environment and can survive indefinitely in frozen material. The H5N1 subtype of HPAI has been of particular concern because it has crossed the species barrier and caused disease in humans. On February 25, 2006, France reported to the World Organization for Animal Health

(OIE)an outbreak of HPAI H5N1 in a turkey breeding flock. On May 18, 2006, Denmark reported to the OIE an outbreak of HPAI H5N1 in a backyard poultry flock. To prevent the introduction of HPAI H5N1 into the United States, APHIS designated the affected regions in both Denmark and France as regions where HPAI was considered to exist, and prohibited the importation of birds, poultry, and poultry products from these regions into the United States. In the assessment titled “APHIS Analysis of the Status of High Pathogenicity Avian Influenza H5N1 (HPAI H5N1) Virus in France” (December 2007), we present the results of our evaluation of the prevalence of HPAI H5N1 in domestic poultry in France in light of the actions taken by French authorities since that outbreak, and document our analysis of the risk associated with allowing the importation of birds, poultry, and poultry products from France into the United States in the aftermath of the outbreak. The assessment titled “APHIS Analysis of the Status of High Pathogenicity Avian Influenza H5N1 (HPAI H5N1) Virus in Denmark” (December 2007) conducts a similar examination and analysis with respect to the situation in Denmark. We conducted each evaluation based on documentation supplied to APHIS by animal health authorities within the respective countries, existing European Union legislation, final reports each country submitted to the OIE regarding the outbreaks, and information that the Danish and French animal health authorities posted on their Web sites. We based our evaluation of each country's HPAI H5N1 status on the following critical factors: • Each country has been free of outbreaks of the H5N1 subtype in its domestic poultry for at least 3 months, as a result of effective control measures taken by a competent veterinary infrastructure; • HPAI H5N1 was a notifiable disease in each country at the time of the outbreak; • Each country had an ongoing disease awareness program in place at the time of the outbreak; • Each country investigated notified or suspected occurrences of the disease; • Each country had an effective surveillance program in place that supported the detection and investigation of outbreaks; • Diagnostic and laboratory capabilities within each country were both adequate and effective; • Each country undertook appropriate eradication and control measures and movement restrictions in response to the outbreaks to prevent further spread of the disease; and • In each country, procedures used for repopulation of affected premises included monitoring to demonstrate that HPAI H5N1 had been eradicated from the premises. Based on these factors, which are consistent with the OIE's recommendations for reinstatement for trade with a country that has experienced an HPAI H5N1 outbreak, 1 our assessment concludes that both France and Denmark had adequate detection and control measures in place at the time of the outbreak, that they have been able to effectively control and eradicate HPAI H5N1 in their domestic poultry populations since that time, and that both French and Danish animal health authorities have control measures in place to rapidly identify, control, and eradicate the disease should it be reintroduced into France or Denmark in either wild birds or domestic poultry. 1 OIE (2006). Risk Analysis. In *Terrestrial Animal Health Code,* 14th edition. Paris, World Organization for Animal Health: Section 2.7.12. To view the document on the Internet, go to *http://www.oie.int/eng/normes/mcode/A_summry.htm?e1d11* . We are making these assessments available for public comment. We will consider all comments that we receive on or before the date listed under the heading DATES at the beginning of this notice. If, after the close of the comment period, APHIS can identify no additional risk factors that would indicate that domestic poultry in either France or Denmark continue to be affected with HPAI H5N1, we would conclude that the importation of live birds, poultry carcasses, parts or products of poultry carcasses, and eggs (other than hatching eggs) of poultry, game birds, or other birds from either France or Denmark presents a low risk of introducing HPAI H5N1 into the United States. The assessments may be viewed on the Regulations.gov Web site or in our reading room (see ADDRESSES above for a link to Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the assessments by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to the titles of the assessments when requesting copies. Done in Washington, DC, this 21st day of March 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-6241 Filed 3-26-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Natural Resources Conservation Service Conservation Security Program AGENCY: Natural Resources Conservation Service and Commodity Credit Corporation, USDA. ACTION: Notice. DATES: The administrative actions announced in the notice are effective on March 27, 2008. FOR FURTHER INFORMATION CONTACT: Dwayne Howard, Branch Chief—Stewardship Programs, Financial Assistance Programs Division, NRCS, P.O. Box 2890, Washington, DC 20013-2890, telephone:

(202)720-1845; fax:

(202)720-4265. Submit e-mail to: *dwayne.howard@wdc.usda.gov,* Attention: Conservation Security Program. SUMMARY: This document announces the Fiscal Year 2008 sign-up, CSP-08-01, for the Conservation Security Program (CSP). This sign-up will be open from April 18, 2008 through May 17, 2008, in selected 8-digit watersheds. SUPPLEMENTARY INFORMATION: In the Interim Final Rule published March 25, 2005 (7 CFR 15201), USDA's Natural Resources Conservation Service

(NRCS)established the implementing regulations for the Conservation Security Program (CSP). The CSP is a voluntary program administered by NRCS, using authorities and funds of the Commodity Credit Corporation, that provides financial and technical assistance to producers who advance the conservation and improvement of soil, water, air, energy, plant and animal life, and other conservation purposes on Tribal and private working lands. This document announces the Fiscal Year 2008 sign-up, CSP-08-01 that will be open from April 18, 2008 through May 17, 2008, in selected 8-digit watersheds, which can be viewed at: *http://www.nrcs.usda.gov/programs/csp/CSP_2008/2008_CSP_WS.html* . These watersheds were selected using the process set forth in the Interim Final Rule. In addition to other data sources, this process used National Resources Inventory data to assess land use, agricultural input intensity, and historic conservation stewardship in watersheds nationwide. NRCS State Conservationists recommended a list of potential watersheds after gaining advice from the State Technical Committees. These 51 watersheds were announced by the Secretary of Agriculture September 25, 2006, and will be carried forward to sign-up CSP-08-01 as no sign-up was conducted in 2007. Producers who are participants in an existing CSP contract may not apply in this sign-up. Applicants can submit one application for this sign-up. Those applicants who are entities or joint operations must file a single application for the organization. Consistent with the authority to exercise administrative flexibility provided by 7 CFR 1469.2(b), the Chief of NRCS intends to deliver a technically enhanced, streamlined version of CSP during sign-up CSP-08-01. CSP-08-01 will incorporate:

(1)The nationwide piloting of improved national eligibility tools, including the Soil and Water Eligibility Tool, the Grazing Lands Eligibility Tool, and the Wildlife Habitat Eligibility Tool;

(2)The availability of both benchmark and new enhancements at a uniform compensation rate over the contract length rather than declining rates for benchmark enhancements, but will provide no contract improvement modification opportunity for CSP-08-01 participants;

(3)No new practice payments; and

(4)Priority to Tier II and Tier III applications requesting 5-year contracts. To be eligible for CSP, a majority of the agricultural operation must be within the limits of one of the selected watersheds. Applications which meet the minimum requirements, as set forth in the Interim Final Rule and listed below will be placed in enrollment categories for funding consideration. Categories will be funded in alphabetical order until funds are exhausted. If funds are not available to fund an entire category, then subcategories will be used to determine application funding order within a category. If a category or subcategory cannot be fully funded, applicants may be offered the FY 2008 CSP contract payment on a prorated basis. Part of the CSP application process is conducted through applicant self-assessment of their conservation system. The applicant is responsible for providing all information that will or may be needed to properly evaluate the agricultural operation to establish benchmark conditions as well as assignment to tier and enrollment category. It is the responsibility of the applicant to request any needed clarification and/or additional information from NRCS in order to provide a complete and accurate application package. Producers should begin the application process by filling out a CSP Self-Assessment Workbook to determine if they meet the basic qualifications for CSP. Self-assessment workbooks are available in hard copy at USDA Service Centers within the watersheds, or can be downloaded from the NRCS Web site at: *http://www.nrcs.usda.gov/programs/csp/CSP_2008/2008_pdfs/SAW2008* . In addition to the self-assessment workbook, an applicant must also submit a benchmark inventory where the applicant documents their current conservation system, including the conservation practices and activities that are ongoing on their operation. This benchmark inventory is used by NRCS to measure an applicant's existing level of conservation activities in order to determine program eligibility, and serves as the basis for the conservation stewardship plan. Once the producer concludes that they meet the CSP requirements as outlined in the workbook, they should make an appointment for an applicant interview to discuss their application with the NRCS local staff to determine if they meet specific CSP eligibility requirements. In order to apply, applicants must submit the following by the end date of the sign-up period:

(1)A completed self-assessment workbook.

(2)A benchmark condition inventory and associated information that includes: a. A map, aerial photograph, or overlay that delineates the entire agricultural operation, including land use and acreage; b. A map of the applicant's land offered for CSP; c. A description of the applicant's production system(s) on the land offered; d. The existing conservation practices and resource concerns, problems, and opportunities on the land offered; e. The Applicant Offer Certification Worksheet that provides the producer-certification of the benchmark condition inventory accuracy, the availability of records to support the current conservation system, and the applicant's selected tier, enrollment category, and subcategory placement; f. A description of the significant resource concerns and other resource concerns that the applicant is willing to address through the adoption of new conservation practices and measures; and g. A list of enhancements that the applicant is currently applying, or may be willing to undertake as part of their proposed contract.

(3)Evidence to the satisfaction of NRCS that the applicant has a minimum of 2 years of written records or documentation to support the current conservation system, including fertilizer, nutrient, and pesticide application schedules, cropping and tillage systems, irrigation water management, waste utilization, and grazing and pasture management, as applicable. Applicants will need to supply written records and documentation of their conservation system upon request by NRCS.

(4)A completed NRCS-CPA-1200 available through the Web site, or any USDA Service Center.

(5)Any other requirement specified in the sign-up notice or as requested by NRCS either prior to or during the applicant interview in order to support the application. The evaluation of an applicant's offered land will be based on the typical system information the applicant provides to NRCS in the self-assessment workbook, the benchmark condition inventory, and during the applicant interview. Technical evaluations will consider conservation system averages represented in the typical system information to determine whether eligibility and treatment requirements are met. Additionally, the typical system information referred to above and provided during the sign-up period will be considered for tier, category, and subcategory placement. It is the responsibility of the applicant to ensure that the application includes all information needed to support the claimed benchmark condition as well as the tier, category, and subcategory placement. The applicant must certify on the Applicant Offer Certification Worksheet that all materials submitted to NRCS in a CSP application are true, correct, and represent the current conservation system being offered by the applicant. All applications may be subject to quality assurance procedures at any time during the application process or, in the event an application is approved, prior to or following contract award. If NRCS determines that an applicant intentionally misrepresented any fact affecting a CSP determination, the application will be cancelled immediately or the contract will be terminated in the case where a contract has been awarded, in accordance with the CSP regulation at 7 CFR § 1469.36. Applicants are encouraged to attend preliminary workshops, which will be announced locally. There, the basic qualifications will be explained, and assistance provided as to completion of the self-assessment workbook and benchmark inventory. CSP is offered at three tiers of participation. Some payments are adjusted based on the tier, and some payments are tier-neutral. See payment information below. Minimum Tier Eligibility and Contract Requirements The following are the minimum tier eligibility and contract requirements: CSP Tier I—the benchmark condition inventory demonstrates to the satisfaction of NRCS that the applicant has addressed the nationally significant resource concerns of water quality and soil quality to the minimum level of treatment for any eligible landuse on part of the agricultural operation. Only the acreage meeting such requirements is eligible for stewardship and existing practice payments in CSP. CSP Tier II—the benchmark condition inventory demonstrates to the satisfaction of NRCS that the applicant has addressed the nationally significant resource concerns of water quality and soil quality to the minimum level of treatment for all eligible land uses on the entire agricultural operation. Additionally, the applicant must agree to address another significant resource concern applicable to their watershed to be started no later than two years prior to contract expiration, and completed by the end of the contract period. If the applicable resource concern is already addressed or does not pertain to the operation, then this requirement is satisfied. CSP Tier III—the benchmark condition inventory demonstrates to the satisfaction of NRCS that the applicant has addressed all of the existing resource concerns listed in Section III of the NRCS Field Office Technical Guide

(FOTG)with a resource management system that meets the minimum level of treatment for all eligible land uses on the entire agricultural operation. Delineation of the Agricultural Operation Delineating an agricultural operation for CSP is an important part in determining the Tier of the contract, stewardship payments, and the required level of conservation treatment needed for participation. The applicant will delineate the agricultural operation to include all agricultural lands, and other lands such as farmstead, feedlots, and headquarters and incidental forestlands, under the control of the applicant and constituting a cohesive management unit that is operated with equipment, labor, accounting system, and management that are substantially separate from any other. In delineating the agricultural operation, Farm Service Agency

(FSA)farm boundaries may be used. If FSA farm boundaries are used in the application, the entire farm area must be included within the delineation. Minimum Eligibility Requirements To be eligible to participate in CSP, the applicants must meet the requirements for eligible applicants, the land offered for contract must meet the definition of eligible land, and the conservation system on the land offered must meet the conservation standards as described below. Eligible Applicants To be eligible to participate, an applicant must:

(1)Be in compliance with the highly erodible land and wetland conservation provisions;

(2)Meet the Adjusted Gross Income requirements;

(3)Show control of the land for the life of the proposed contract period. If the applicant is a tenant, the applicant must provide NRCS with written evidence or assurance of control from the landowner, but a lease is not required. In the case of land allotted by the Bureau of Indian Affairs

(BIA)or Tribal land, there is considered to be sufficient assurance of control;

(4)Share in risk of producing any crop or livestock and be entitled to share in the crop or livestock available for marketing from the agriculture operation. Landlords and owners are ineligible to submit an application for exclusively cash rented agriculture operations;

(5)Complete a benchmark condition inventory and associated information as described above for the entire agricultural operation or the portion being offered; and

(6)Supply information, as required by NRCS, to determine eligibility and support the tier, category, and subcategory placement for the program; including but not limited to, information related to eligibility criteria in this sign-up announcement; and information to verify the applicant's status as a beginning or limited resource farmer or rancher if applicable. Eligible Land To be eligible for enrollment in CSP, land must be:

(1)Private agricultural land;

(2)Private non-industrial forested land that is an incidental part of the agriculture operation;

(3)Agricultural land that is Tribal, allotted, or Indian trust land;

(4)Other incidental parcels, as determined by NRCS, which may include, but are not limited to, land within the bounds of working agricultural land or small adjacent areas (including non-cropped center pivot corners, linear practices, field borders, turn rows, intermingled small wet areas, or riparian areas); or

(5)Other land on which NRCS determines that conservation treatment will contribute to an improvement in an identified natural resource concern, including areas outside the boundary of the agricultural land or enrolled parcel such as farmsteads, ranch sites, barnyards, feedlots, equipment storage areas, material handling facilities, and other such developed areas. Other land must be treated in Tier III contracts. Land Not Eligible for Enrollment in CSP The following lands are ineligible for enrollment in CSP:

(1)Land enrolled in the Conservation Reserve Program, the Wetlands Reserve Program, or the Grassland Reserve Program;

(2)Public land, including land owned by a Federal, State, or local unit of government;

(3)Private non-industrial forest land that exceeds 10 acres in size individually, or 10 percent in aggregate of the total offered acres; and

(4)Any land that fails to meet the definition of eligible land. Ineligible land referred to above needs to be delineated as part of the agricultural operation. This land may not receive CSP payments, but the conservation work on this land may be used to determine if an applicant meets minimum level of treatment requirements, the applicant's category placement, and may be described in the Conservation Stewardship Plan. Land Not Eligible for Any Payment Component in CSP Land that is used for crop production after May 13, 2002, that had not been planted, considered to be planted, or devoted to crop production, as determined by NRCS, for at least 4 of the 6 years preceding May 13, 2002, is not eligible for any payment component in CSP. Conservation Standards for Tier I and Tier II—Minimum Level of Treatment The following conservation standards apply for Tier I and Tier II:

(1)The minimum level of treatment on cropland for soil and water quality is considered achieved when the Soil and Water Eligibility Tool minimum thresholds are met for soil quality functions and water quality resource concerns.

(2)The minimum level of treatment on pastureland and rangeland for soil and water quality is considered achieved when the CSP Grazing Lands Eligibility Tool minimum thresholds are met for soil quality and water quality resource concerns. Conservation Standards for Tier III—Minimum Level of Treatment The minimum level of treatment for Tier III on any eligible landuse is met by achieving the required conservation standards specified for Tier I and Tier II requirements, plus meeting the quality criteria for the local NRCS FOTG for all existing resource concerns and the following specific criteria:

(A)The minimum requirement for water quantity—irrigation water management on cropland or pastureland is considered achieved when the current level of treatment and management for the system results in a water use index value of at least 50;

(B)The minimum requirement for wildlife is considered achieved when the current level of treatment and management for the system results in an index value of at least 0.5 of the habitat potential. States will use the Wildlife Habitat Eligibility Tool to determine index values, with the exception of Alaska, Hawaii, Guam, and Puerto Rico. They will use either a general or species specific habitat assessment guide, as determined by the State Conservationist. CSP Contract Payments and Limits CSP contract payments include one or more of the following components subject to the described limits:

(1)An annual per acre stewardship component for the benchmark conservation treatment. This component is calculated separately for each land use by multiplying the number of acres times the tier factor (0.05 for Tier I, 0.10 for Tier II, and 0.15 for Tier III) times the stewardship payment rate established for the watershed times the tier reduction factor (0.25 for Tier I and 0.50 for Tier II, and 0.75 for Tier III).

(2)An annual existing practice component for maintaining existing conservation practices. Existing practice payments will be calculated as a flat rate of 25 percent of the stewardship payment.

(3)An annual enhancement component for exceptional conservation effort and activities that provide increased resource benefits beyond the quality criteria for a given resource concern or go beyond the minimum requirements of a conservation standard. During initial contract development, participants may contract to complete both enhancement activities that are part of the benchmark inventory and new enhancement activities. All enhancement activities will be paid at a uniform compensation rate over the contract length. The total of all enhancement payments in any one year will not exceed $13,750 for Tier I, $21,875 for Tier II, and $28,125 for Tier III annually. Enhancement Components Available in This Sign-up Enhancement activities within the resource categories of water quality, soil quality, water management, grazing lands, wildlife, plants, air, and energy management will be available for sign-up CSP-08-01: An advance enhancement payment may be made available in the FY 2008 sign-up. The advance enhancement payment may be available to contracts with the initial enhancement payment as determined in the benchmark inventory and interview. The advance enhancement payment would shift a portion of the contract's enhancement payment amount into the first-year payment and deduct it from the following years' payments. Tier I contracts are for a five-year duration. Tier II and Tier III contracts are for a 5- to 10-year duration at the option of the participant. However, Tier II and Tier III applicants who select 5-year contracts will be given priority in category placement. Future contract improvement modifications such as advancing tiers, adding land, and adding enhancements will not be offered to CSP-08-01 participants. Total annual maximum contract payment limits are $20,000 for Tier I, $35,000 for Tier II, and $45,000 for Tier III, including any advance enhancement payment. For more details on payment components, call or visit the local USDA Service Center, or view on the Web site at: *http://www.nrcs.usda.gov/programs/csp/CSP_2008/2008_CSP_WS.html* . CSP Enrollment Categories and Subcategories An eligible application will be placed in an enrollment category as follows:

(1)A single land use application will be placed in an enrollment category by applying the applicant's group level assignment, Tier, and applicant-selected contract length to the 2008 CSP Enrollment Category Matrix. An applicant's group level is assigned using the 2008 Conservation System Criteria By Land Use Table and the associated Stewardship Practice and Activity Lists provided in this notice. An application will be assigned to the highest group level that all conservation management units being offered meet. Only unique practices or activities that have been installed and maintained for at least two years prior to the sign-up period, and applied in every location suitable or needed to address resource concerns will be counted to assign an applicant's group level.

(2)A multiple land use application will be placed in the category of the land use with the largest number of offered acres. Category placement for a land use will follow the direction for single land use application category placement (see above). The CSP will fund the enrollment categories in alphabetical order. If an enrollment category cannot be completely funded, then subcategories will be funded in the following order:

(1)Applicant is a limited resource producer, according to criteria specified in the USDA Limited Resource Farmers/Ranchers guidelines, or a Tribal member producing on Tribal or historically tribal lands;

(2)Applicant is a participant in an on-going monitoring program that is sponsored by an organization or unit of government that analyzes the data and has authority to take action to achieve improvements;

(3)Agricultural operation in a water conservation area or aquifer zone designated by a unit of government;

(4)Agricultural operation in a drought area designated by a unit of government in any two of the past three years before the sign-up dates;

(5)Agricultural operation in a water quality area with a priority on pesticides designated by a unit of government;

(6)Agricultural operation in a water quality area with a priority on nutrients designated by a unit of government;

(7)Agricultural operation in a water quality area with a priority on sediment designated by a unit of government;

(8)Agricultural operation in a non-attainment area for air quality or other local or regionally designated air quality zones designated by a unit of government;

(9)Agricultural operation in an area selected for the conservation of imperiled plants and animals, including threatened and endangered species, as designated by a unit of government; or

(10)All other applications. Designated by a unit of government” means officially assigned a priority by a Federal, State, or local unit of government prior to this notice. Neither an agency, nor a committee or board who provides advice or makes decisions on programs delivered by the agency are considered units of government. If a category or subcategory cannot be fully funded, applicants may be offered the FY 2008 CSP contract payment on a prorated basis. Signed in Washington, DC, on March 19, 2008. Arlen Lancaster, Vice President, Commodity Credit Corporation, Chief, Natural Resources Conservation Service. BILLING CODE 3410-16-P EN27MR08.005 EN27MR08.006 EN27MR08.007 EN27MR08.008 EN27MR08.009 EN27MR08.010 EN27MR08.011 EN27MR08.012 EN27MR08.013 EN27MR08.014 [FR Doc. E8-6177 Filed 3-26-08; 8:45 am] BILLING CODE 3410-16-C DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2008-0009] Codex Alimentarius Commission: Meeting of the Codex Committee on Food Labeling AGENCY: Office of the Under Secretary for Food Safety, USDA. ACTION: Notice of public meeting and request for comments. SUMMARY: The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture, and the Food and Drug Administration (FDA), U.S. Department of Health and Human Services, are sponsoring a public meeting on March 31, 2008. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States positions that will be discussed at the 36th Session of the Codex Committee on Food Labeling

(CCFL)of the Codex Alimentarius Commission (Codex), which will be held in Ottawa, Canada, on April 28 to May 2, 2008. In addition, a working group on the Implementation of the World Health Organization

(WHO)Global Strategy on Diet, Physical Activity, and Health will meet on April 26, 2008. The Under Secretary for Food Safety and FDA recognize the importance of providing interested parties the opportunity to obtain background information on the 36th Session of the CCFL and to address items on the agenda. DATES: The public meeting is scheduled for Monday, March 31, 2008, from 1 p.m. to 4 p.m. ADDRESSES: The public meeting will be held in Room 107A, Jamie Whitten Federal Building, 1200 Independence Avenue, SW., Washington, DC 20250. Codex documents related to the 36th Session of the CCFL will be accessible via the World Wide Web at the following address: * http://www.codexalimentarius.net/current.asp. * The U.S. Delegate to the CCFL, Dr. Barbara Schneeman, invites interested U.S. parties to submit their comments electronically to the following e-mail address: * ccfl@fda.hhs.gov. * *For Further Information about the 36th Session of the CCFL Contact:* Dr. Michael Wehr, FDA, Center for Food Safety and Applied Nutrition, 5100 Paint Branch Parkway, College Park, MD 20740. Phone:

(301)436-1724, Fax:

(301)436-2618, e-mail: *michael.wehr@fda.hhs.gov. * *For Further Information about the Public Meeting Contact:* Doreen Chen-Moulec, U.S. Codex Office, Food Safety and Inspection Service (FSIS), Room 4861, South Building, 1400 Independence Avenue, SW., Washington, DC 20250. Phone:

(202)205-7760, Fax:

(202)720-3157. SUPPLEMENTARY INFORMATION: Background The Codex Alimentarius Commission (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization

(FAO)and the WHO. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade. The CCFL drafts provisions on labeling applicable to all foods; considers, amends if necessary, and endorses specific provisions on labeling of draft standards, codes of practice, and guidelines prepared by other Codex committees; studies specific labeling problems assigned to it by the Codex Alimentarius Commission; and studies problems associated with the advertisement of food with particular reference to claims and misleading descriptions. The CCFL is chaired by Canada. Issues To Be Discussed at the Public Meeting The following items on the agenda for the 36th Session of the CCFL will be discussed during the public meeting: • Matters Referred to the CCFL from other Codex Bodies. • Matters Referred by FAO and WHO: Implementation of the WHO Global Strategy on Diet, Physical Activity, and Health. • Consideration of Labeling Provisions in Draft Codex Standards. • Guidelines for the Production, Processing, Labeling and Marketing of Organically Produced Foods: Draft Revised Annex 2: Table 3, Draft Amendment: Addition of Ethylene, and Proposal for new work: Deletion of Rotenone from Annex 2. • Labeling of Foods and Food Ingredients Obtained through Certain Techniques of Genetic Modification or Genetic Engineering: Definitions and Labeling Provisions. • Draft Amendment to the General Standard for the Labeling of Prepackaged Foods: Quantitative Declaration of Ingredients. • Draft Definition of Advertising in Relation to Nutrition and Health Claims. • Discussion Paper on Modified Standardized Common Names Each item listed above will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the April 28-May 2, 2008, meeting in Ottawa, Canada. Members of the public may access these documents on the World Wide Web (see ADDRESSES ). Public Meeting At the March 31, 2008, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be sent electronically to the U.S. Delegate for the CCFL, Dr. Barbara Schneeman (see ADDRESSES ). Written comments should state that they relate to activities of the 36th Session of the CCFL. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at: ( *http://www.fsis.usda.gov/regulations/2008_Notices_Index/* . FSIS will also make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade groups, consumer interest groups, health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: *http://www.fsis.usda.gov/news_and_events/email_subscription/* . Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves, and they have the option to password protect their accounts. Done at Washington, DC, on: March 24, 2008. Karen L. Hulebak, Acting U.S. Manager for Codex Alimentarius. [FR Doc. E8-6243 Filed 3-26-08; 8:45 am] BILLING CODE 3410-DM-P COMMISSION ON CIVIL RIGHTS Sunshine Act Notice AGENCY: United States Commission on Civil Rights. ACTION: Notice of meeting and briefing. DATE AND TIME: Friday, April 4, 9:30 a.m. PLACE: U.S. Commission on Civil Rights, 624 Ninth Street, NW., Rm. 540, Washington, DC 20425. Briefing Agenda *Topic:* The Impact of Illegal Immigration on the Wages & Employment Opportunities of Black Workers. I. Introductory Remarks by Chairman II. Speakers' Presentations III. Questions by Commissioners and Staff Director IV. Adjourn Briefing FOR FURTHER INFORMATION CONTACT: Lenore Ostrowsky, Acting Chief, Public Affairs Unit,

(202)376-8582. Dated: March 25, 2008. David Blackwood, General Counsel. [FR Doc. 08-1081 Filed 3-25-08; 2:34 pm]

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